Devising a Correct Model and Pattern for Shi'i Fiqh

Fiqh, in the sense of the practice of inferring the laws of the Shari'ah from its sources, the Book and the Sunnah, has a long history in Shi'ism. Al-'Imam al-Baqir's directing Aban ibn Taghlib to give fatwas, with the words, "Ijlis fi masild al-Madinah wa if ti al-nas,"  and his instructions given to `Abd al--'A'la (Ya'rif u hadha wa ashbahahu min kitab Alldh `azza wa jall: Qala Allahu ta'ala: "Ma ja'ala `alaykum fi al-dini min haraj") and other statements of the kind indicate that the companions of the Imams had begun to practise the deduction of ahkamfrom the Qur'an, the Sunnah of the Prophet (s) and statements of the Imams (a) at an early stage. `Fiqh' in the sense of the knowledge ofahkam was not limited amongst the Shi'is to merely practising taqlid and acting in accordance with the statements of the Imams (a). It steadily continued to develop and expand with time, becoming more extensive and complex in respect of juristic inference. Nevertheless, there is a great distance which separates the Shi'i fiqh and ifta' as practised by the jurists from among the companions of the Imams (a) from what it became during the eras of its maturity and fruition: that is, the activity of deducing the laws (furu`) from juristic principles (usul) and the inference of hundreds of general rules and thousands of complex and complicated juristic precepts from the Book, the Sunnah, and reason, and the procurement of innumerable furu` capable of meeting all the needs of mukallaf persons during the ghaybah of the Infallible Imam, as well as the identification of God's halal and haram in all the spheres in their full details. This great distance was to be covered through a gradual progress of the juristic tradition.

  is no doubt that the legists before al-Mufid had made valuable contributions in this direction. But this great teacher, with the intellectual prowess of a genius, is considered in this field, too, a point of departure for a new phase which was as eventful as it was to become progressively prolific and profound. It appears that after several centuries of collection of the sources of fiqh-that is, the statements of the Infallible Ones-and giving of juristic opinion on the basis of the texts and literal meanings of traditions, the time had come in the history of fiqh to remould this legacy into a scientific structure and to devise a methodology for the deduction ofahkam.

  existed two different trends in Shi'ite fiqh before al-Mufid. One of them is the one whose prominent representative was 'Ali ibn Babawayh (d. 329/940). We may perhaps call it "the Qumm tradition," and it is highly probable that Ja'far ibn Qalawayh (d. 368/978 or 369/979), al-Mufid's teacher, also belonged to it. The practice of fiqh in this tradition was based on giving juristic rulings in accordance with the texts of tradition, so that every fatwa in the books of this group of jurists referred to a relevant tradition. Accordingly, whenever the author of such a fatwa possessed the prerequisites of reliability (withaqah) and precision (dabt), that fatwa istaken as the equivalent of a hadith. This is why al-Shahid al-'Awwal states in his Dhikra: "Shi'i scholars used to rely upon the contents of al-Shaykh Abu al-Hasan Ibn Babawayh's [Kitab] al-Shara'i` for paucity of [hadith]texts, on account of their good opinion of him and for the reason that hisfatwa was like his riwayah." 

 , a fiqh of this kind is quite of an elementary character and devoid of any complicated technicalities. The furu` mentioned in the legal texts pertaining to this trend are confined to the furu` contained in the texts of traditions and are very few and limited. It was this lack which caused the opponents to criticize Shi'i fiqh for its poverty in regard to the number of furu`. This criticism in turn prompted al-Shaykh al-Tusi-may God's mercy be upon him-later on to write his al-Mabsut in order to silence such criticisms.

  second trend was opposed to the first one; it was based on reasoning and, presumably, inspired by Sunni fiqh. Its two well-known representatives are al-Hasan ibn 'Ali ibn Abi `Aqil al-`Ummani (d. c 350/9701 and Ibn al-Junayd al-'Iskafi (d. probably 381/991). Although we don't possess adequate information concerning this trend-and even about these two famous jurists-to judge with precision the level of their expertise in ijtihad and juristic deduction, but, on the basis of what others have reported concerning Ibn al-Junayd, it appears fairly certain that he was disposed towards qiyas and ra'y and had departed from acceptable Shi'i practice. As to al-`Ummani, this tendency is not ascribed to him. Rather al-Najashi says of him: "I heard our Shaykh Abu `Abd Allah praising a lot this man, may God have mercy upon him."  From al-Najashi's statement-and judging from what al-Tusi says about him in al-Fihrist  -we may conclude that he was a jurist of the straight kind and perhaps his approach was the same as the one adopted by al-Mufid, the one on which he based his works and his research and in accordance with which trained his pupils. However, his opinions are mostly of the eccentric kind, rarely held by jurists (shadhdh), and are not followed (matruk).And perhaps that is the reason why all that survived of his book during the periods following 'Allamah and Muhaqqiq-may God's mercy be upon them-was its name. Accordingly, it may be surmised that he could not have been among the progenitors of the subsequent juristic tradition and that his juristic approach must have suffered from some inadequacies. Nevertheless, this pioneering scholar, about whom Bahr al-`Ulum says, "He was the first to refine fiqh and to employ rational judgement and analysis in the matters of usul and furu` at the outset of the Greator Occultation" (Fatawa al-'alamayn, p. 13), was undoubtedly instrumental in helping al-Mufid find a valid framework for the practice of fiqh, whichwas a first step, to which al-'Ummani's work must be considered a prelude.

As noted, each of these two trends in the practice of fiqh was deficient in certain respects. In the first, the fatwa consisted of the text of the riwayahwithout involving any effort made to deduce a rule from general principles and without any critical study, scrutiny and reasoning. Ijtihad, in its current technical sense, played no role in the practice of fiqh. In the second trend, although resort was made to reasoning and critical judgement, it was not apparently fully in accord with the teachings of the Ahl al-Bayt, may peace be upon them. Either it was accompanied with qiyas or was of such a nature that led to eccentric results and hence could not continue in Shi'i juristic circles.

 -Mufid's jurisprudence was free from these two faults and possessed the merits of both the trends: it relied upon such methods as were acceptable for the Imamiyyah and employed ijtihad in its current technical sense as well, making use of reasoning and critical inference in fiqh. Accordingly, he is the one who produced a scientific model that was reliable and acceptable to the Shi'ah, giving a scientific order to the traditional material and the principles of jurisprudence, and left it as an enduring legacy for Shi'i centres of legal studies. Through the course of centuries until today it has been pursued by the official tradition of fiqh and nurtured to the maturity and fruition that it possesses today.

 order to get briefly acquainted with the worth and significance of al-Mufid's work in fiqh, we will make a passing reference to three relevant topics. They are: (a) the Kitab al-muqni'ah; (b) al-Mufid's short rasa'ilrelating to fiqh; (c) the Kitab al-tadhkirah bi usul al-fiqh.