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Legal Theory: Classical Shīʿī

By:
Aun Hasan Ali
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Legal Theory: Classical Shīʿī

The principal sources of Imāmī Shīʿī law are the Qurʾān, the sunnah, ijmāʿ, and ʿaql. The sunnah comprises the statements, deeds, and tacit consent of the Prophet, his daughter Fāṭimah, and the twelve Imams. Ijmāʿ means the agreement of all Imāmī Shīʿī jurists on a particular question of law. It is not an independent source of law, but rather a way of discovering and affirming an element of the sunnah. ʿAql denotes categorical judgments of pure and practical reason. Imāmī Shīʿī law does not validate analogies in which the common factor between the original case and the new case is not stated clearly in the Qurʾān or the sunnah. The discipline that explains how legal norms can be derived from these four sources is known as Uṣūl al-fiqh.

Some of the fundamental principles of jurisprudence first emerged among Imāmī Shīʿīs in the eighth century. Imams al-Bāqir and al-Ṣādiq are reported to have taught their followers principles such as comparing contradictory ḥadīths with the Qurʾān and then rejecting whatever disagrees with the Qurʾān. Later-scholars collected these teachings and organized them along the topical lines used in books of jurisprudence. These books include al-Fuṣūl al-muhimma by al-Ḥurr al-ʿĀmilī (d. 1693) and Uṣūl āl al-rasūl by Hāshim b. Zayn al-ʿĀbidīn al-Khūnsārī al-Iṣfahānī (d. 1900). The Imams’ disciples, such as Yūnus b. ʿAbd al-Raḥmān (d​. 823), are also reported to have written books on hermeneutics. In the tenth century, Imāmī Shīʿī scholars were still writing books on individual topics of jurisprudence. Abū Sahl al-Nawbakhtī (d. 923) wrote al-Khuṣūṣ wa-l-ʿumūm, Ibṭāl al-qiyās and Naqḍ ijtihād al-raʾy. Ibn Dāwūd al-Qummī (d. 978/79) also contributed to writing on legal theory. He was the leader of the scholars of Qom, a city where scholarship was focused on ḥadīth, demonstrating that Imāmī Shīʿī ḥadīth-scholars also partook in the emergence of the discipline of legal theory.

Nearly all these early authors were theologians as well as jurists. At this stage in the history of Imāmī Shīʿī legal theory, jurisprudence and theology were not completely distinct disciplines. They shared at their roots the common questions of epistemology, reason, and revelation. As a result, even books on jurisprudence written in the eleventh century mixed theology and jurisprudence, especially when discussing ḥadīths that are not widespread. As a result of this genre-crossing, some scholars writing on legal theory disliked the use of ḥadīths that, in and of themselves, do not give rise to certitude, which is the standard of evidence in theology. So, for example, a jurist who disallows non-widespread (āḥād) reports might argue that zakāt money cannot be given to persons who are not entitled to it, since such provisions are based on āḥād reports; jurists who do not accept these reports hold that, if there are no entitled persons, the money should be set aside until there are.

The Formation of a Discipline

The oldest extant book on jurisprudence that treats the topic systematically is the Baghdad scholar al-Shaykh al-Mufīd’s (d. 1022) al-Tadhkirah. In this book al-Mufīd discusses three ways in which the principles underlying all legal norms might be identified: reason, the normal rules of language, and individual reports (akhbār). Even though he mentioned reports, al-Mufīd denied the evidentiary value of uncorroborated, non-widespread (āḥād) ones. Al-Mufīd’s presentation of his theory in al-Tadhkirah suggests that his vision of Imāmī Shīʿī legal history was one in which the principles of jurisprudence were determined after a body of substantive Imāmī Shīʿī law had already come into existence. In his effort to articulate a theory, however, al-Mufīd was not without guidance; he could refer back to principles that the Imams had taught their followers, earlier Shīʿī writings, and works that Sunnīs had already written in this field.

Al-Mufīd’s student al-Sharīf al-Murtaḍā (d. 1044) wrote an important book titled al-Dharīʿah (completed 1038) in which he differentiated between the parameters of theology and jurisprudence by removing discussions of epistemology, causality, and other issues from the latter. Furthermore, for the first time, al-Murtaḍā discussed jurisprudence comparatively: he related various contrasting opinions on individual legal issues, and discussed them critically before determining which opinion was correct. Like his teacher, al-Murtaḍā denied the evidentiary value of āḥād reports.

The most famous work on jurisprudence from this period is ʿUddat al-uṣūl by al-Murtaḍā’s student al-Ṭūsī (d. 1067), whose legal views prevailed for centuries. Al-Ṭūsī reclaimed the validity of āḥād reports, striking a balance between ḥadīth scholars and rationalists like al-Mufīd and al-Murtaḍā that has characterized Imāmī Shīʿī law until today. Furthermore, he drew a clear distinction between discussions pertaining to jurisprudence and those on substantive law (fiqh).

In the second half of the twelfth century, several scholars came out in opposition to al-Ṭūsī’s methodology, denying the evidentiary value of āḥād reports as al-Murtaḍā had done. These scholars included: Sadīd al-Dīn al-Ḥimmaṣī al-Rāzī (d. after 1187), Ibn Zuhrah al-Ḥalabī (d. after 1198/99), and Ibn Idrīs al-Ḥillī (d. 1202). There were others such as Quṭb al-Dīn al-Rāwandī (d. 1178) and Ibn Shahrāshūb (d. 1192) who, under the influence of Murtaḍā, denied the evidentiary value of āḥād reports, but followed Ṭūsī’s views on substantive law.

Ibn Zuhrah tried to connect jurisprudence to substantive law by applying methodological principles to substantive law. Aside from the question of the evidentiary value of āḥād reports, he disagreed with al-Ṭūsī on several other questions of hermeneutics, such as the significance of imperative language used in revelation. This kind of iconoclasm encouraged independent reasoning and the critical examination of arguments, although this school of thought did not develop further.

Ibn Idrīs was a rationalist who believed that, in cases in which the Qurʾān, the renowned sunnah of the Prophet, or consensus did not provide any evidence, jurists should rely on reason, “for the Sharīʿah is entrusted to reason.” His al-Sarāʾir (completed 1192) was the first book to list the four sources of law in order, which is an indication of the stabilization of legal methodology. Ibn Idrīs went well beyond a discussion of substantive law in this book. He discussed theoretical issues underlying individual cases, and he was extremely critical of al-Ṭūsī’s views on substantive law.

The Period of Consolidation

By the thirteenth century Ḥillah (south of Baghdad) had become the center of Imāmī Shīʿī scholarship. The legal views from this period, which were a defense and refinement of al-Ṭūsī’s ideas, would prevail until the sixteenth century. The most important jurist from this century was al-Muḥaqqiq al-Ḥillī (d. 1277). His student al-ʿAllāma al-Ḥillī (d. 1325) wrote several works on jurisprudence including a commentary on the Sunnī Ibn al-Ḥājib’s (d. 1249) Mukhtaṣar al-muntahā titled Ghāyat al-wuṣūl, a summary of the Shāfiʿī al-Bayḍāwī’s (d. c. 1286) work on legal theory, and Tahdhīb al-wuṣūl, which was an important textbook in Iraq and southern Lebanon before the work Maʿālim al-dīn (see below). It is noteworthy that two of these books were based on Sunnī works, and al-ʿAllāma’s commentary on Ibn al-Ḥājib was even well regarded by Sunnīs. Ibn al-Ḥājib’s work was the basis of a long tradition of Sunnī jurisprudence, and al-ʿAllāma’s commentary on it put him in the middle of the Sunnī literary tradition. This is one example of how Imāmī Shīʿī theorists and scholars partook in what they considered a common Islamic tradition of legal scholarship.

In the fourteenth century, Imāmī Shīʿī jurisprudence reached an unprecedented level of sophistication. Al-Shahīd al-Awwal (d. 1384) wrote al-Qawāʿid, a work on the principles of jurisprudence, substantive law, and Arabic, which is a recension of the Sunnī scholar al-Qarāfī’s (d. 1285) book al-Furūq. In this book, al-Shahīd selects a methodological principle, discusses its significance in light of Imāmī Shīʿī law, and then compares it to other schools of law. This genre of scholarship was popular among Sunnī legal scholars in the same period. For example, based on the principle of istiṣḥāb he derives four subordinate rules, including istiṣḥāb ḥukm al-ijmāʿ fī mawiʿ al-nizāʿ (the continuity of a ruling based on consensus should disagreement arise), which is noteworthy because it seems to restrict independent reasoning. Al-Qawāʿid also contains detailed expositions of hermeneutics. For example, al-Shahīd divides the literal meaning of words into three categories: lexicographical, conventional, and technical (a breakdown paralleled in Sunnī theory). Finally, he discusses the applicability of methodological principles.

In the fifteenth century, jurists began to feel the need for greater systematization and organization of rules common to the derivation of legal norms, especially for the sake of pedagogy. A noteworthy scholar from this period was al-Fāḍil al-Miqdād (d. 1423), who wrote a redaction of al-Shahīd’s al-Qawāʿid titled Naḍd al-qawāʿid (completed 1405). His books were written to systematize the method of derivation of legal norms, particularly in light of disagreements over the integrity of ḥadīths (Aʿrajī). Al-Qawāʿid was written to teach students to understand substantive law on the basis of legal theory, but it is not organized in a way that is accessible to every student. Al-Miqdād wrote al-Naḍd to rectify this problem. In the sixteenth century jurisprudence continued to revolve around established discussions of language and rational and revealed indicators of the law.

New Horizons

One of the most influential books in this history of Imāmī Shīʿī legal theory, Maʿālim al-dīn (completed 1586), was written by al-Ḥasan b. Zayn al-Dīn al-ʿĀmilī (d. 1602). In addition to being extremely precise, the author achieved a new methodological depth. Al-Maʿālim replaced three books in Imāmī Shīʿī madāris: ʿAmīd al-Dīn’s commentary on al-ʿAllāma’s Tahdhīb al-wuṣūl, and al-ʿAllāma and al-ʿAḍud al-Ījī’s (d. 1355) commentaries on Ibn al-Ḥājib’s uṣūl work (Aʿrajī). Ḥusayn b. Rafīʿ al-Dīn (d. 1653/54) put forth some of the most significant views of the century in his commentary on the Maʿālim (Modarressi Tabatabaʾi). Al-Fāḍil al-Tūnī’s (d. 1660/61) work al-Wāfiya was also a milestone. In contrast to his contemporaries, al-Tūnī divided jurisprudence into two parts: in the first part he covered issues pertaining to language and the proper understanding required to approach revealed scripture, and in the second part he covered rational discourses. This unique division of jurisprudence became standard and is still used by Imāmī Shīʿī scholars today. Furthermore, he took a few issues that were normally discussed in the section on language, and placed them in the section on rational discourses under the heading ‘the correlation between two legal norms.’ This shows that there was an effort to identify, isolate, and discuss purely logical issues independently. Finally, in a work on substantive law entitled Mashāriq al-shams, al-Muḥaqqiq al-Khūnsārī (d. 1687) added a philosophical dimension to jurisprudence that was to have a profound effect on scholars in the nineteenth century (Aʿrajī). For example, he discussed the possibility of combining a command and a prohibition in the same case in light of the question of which enjoys primacy, existence, or quiddity.

The eighteenth century was a period of stagnation in the history of Imāmī Shīʿī jurisprudence. This may have been caused by the ascent of Akhbārism in seventeenth century. This legal school was initiated by Muḥammad Amīn al-Astarābādī (d. 1626/27), but it grew out of a broader trend of ḥadīth-based legal scholarship that dates back to the beginnings of the history of Imāmī Shīʿī jurisprudence. Al-Astarābādī focused his criticisms on al-ʿAllāma al-Ḥillī, whom he accused of having introduced Sunnī concepts into Imāmī Shīʿī law. He rejected ijtihād, proposing instead a methodology that would rely on transmitted reports to ensure that legal norms were known with certainty. Two aspects of his legal theory became the central themes of Akhbārī writings: an affirmation of the reliability of early collections of Imāmī Shīʿī ḥadīths, and the way in which they should be interpreted. Despite its formal opposition to ijtihād, Akhbārism was not a populist, literalist reaction to the mainstream of Imāmī Shīʿī legal theory. Akhbārīs developed a fairly sophisticated legal methodology based on principles sanctioned by the Imams. However, the Akhbārīs’ reliance on an epistemic category called customary certainty (al-qaṭʿ al-ʿurfī), and its similarity with the Uṣūlīs’ category of actionable probability (al-ẓann), led some to conclude that the dispute between the two schools was at heart terminological. There were no noteworthy Akhbārīs after 1818.

The eighteenth century is one of the liveliest centuries in the history of Imāmī Shīʿī jurisprudence. Al-Waḥīd al-Bihbahānī (d. 1791) fought hard against Akhbārism in the Iraqi scholarly center of Karbala by championing the role of reason in legal thought. He tried to prove that the derivation of substantive law requires methodological principles, and he believed that there is a necessary relationship between reason and revelation. He was particularly interested in determining the right course of action in the face of doubt (shakk). This was a strategic choice in the fight against Akhbārism, because Akhbārīs denied the evidentiary value of reason precisely because they claimed it was of dubious reliability. Akhbārīs held that certainty came only from teachings transmitted from the Imams, and they asserted that the evidentiary value of all the ḥadīths in the Four Books considered canonical ḥadīth works by Imāmī Shīʿīs was beyond doubt. Al-Bihbahānī’s discussion of the question of doubt foreshadowed the later elaboration of a set of procedural principles that systematized legal reasoning. These procedural principles would become one of the hallmarks of modern Imāmī Shīʿī jurisprudence. They explain what one should do in cases where a legal norm cannot be determined. Bihbahānī’s ideas were a precursor to an entirely new school of jurisprudence headed by Murtaḍā al-Anṣārī (d. 1864) in Najaf.

Bibliography

  • Aʿrajī, al-Sayyid Zuhayr. “al-Naẓariyya al-uṣūliyya nushūʾuhā wa-taṭawwuruhā (1).” Turāthunā 81 and 82 (Jumādá al-Ūlá 1426): 137–187. A short history of Imāmī Shīʿī jurisprudence.
  • Gleave, Robert M. Scripturalist Islam: The History and Doctrines of the Akhbārī Shīʿī school. Leiden, Netherlands: Brill, 2007.
  • Modarressi Tabatabaʾi, Hossein. An Introduction to Shīʿī law: A Bibliographical Study. London: Ithaca Press, 1984.
  • Muẓaffar, Muḥammad Riā. Uṣūl al-fiqh (Jurisprudence). Najaf, Iraq: Manshūrāt Maktabat al-Qaṣīr, 1959. An accessible, intermediary textbook on Shīʿī jurisprudence.
  • Sadr, Muḥammad Bāqir. al-Maʿālim al-jadīda li-l-uṣūl: ghāyat al-fikr. Qom, Iran: Markaz al-Abḥāth wa-al-Dirāsāt al-Takhaṣṣuṣīyah lil-Shaḥid al-Ṣadr, 2001. Contains a section on the history of Imāmī Shīʿī jurisprudence.
  • Stewart, Devin J. Islamic Legal Orthodoxy: Twelve Shiite Responses to the Sunnī Legal System. Salt Lake City: University of Utah Press, 1998. Discusses the role that Sunnī jurisprudence played in the development of Shīʿī jurisprudence.
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