The Principles of Jurisprudence

The subject under consideration here is the 'ilm, or knowledge of the principles of jurisprudence, usul ul fiqh. The two studies of jurisprudence and its principles are interconnected. They are interconnected in the same way, as will become clear, as the two studies of logic and philosophy are interconnected. The study of the principles is tantamount to a preparation to the study of jurisprudence, and it is for this reason that it has been named the principles of jurisprudence, for the word usul means roots or principles.

Firstly, a short definition of these two studies must be given.

The Arabic word, fiqh essentially means understanding, profound understanding. Our information about the affairs and proceedings of this world can be of two types. Sometimes it is shallow, surface information, and sometimes it is profound. An example from economic affairs will help us. We are continually experiencing the fact that products which years ago did not exist are now finding their way onto the market place, while at the-same time a chain of products that were previously abundant cannot now be found. Likewise, the prices of certain products regularly increase, while the prices of other goods, let us suppose, is fixed.

This type of information is universally available and is shallow, surface information. The information of some people on these matters is profound, however, and they have journeyed from the mere experiencing of the events to a profound understanding of the causes, meaning that they are aware of the reason for a certain article becoming available and another article becoming unavailable, and of the reasons for a certain product being expensive and a different one being inexpensive. They know what causes prices to regularly increase, and they know to what extent these causes are essential, definite and unavoidable, and to what extent they can be checked.

When the information of a person in economic affairs is such that it passes the level of simple experiencing and arrives at the level of discerning the deep-rooted causes and profound currents, he can be said to be a person having deep understanding (mutafaqqeh) in economics.

In the Holy Quran and in Traditions from the Holy Prophet and the Imams, we have been repeatedly commanded towards profound understanding (tafaqqah) in the religion, and from the collective content of these sources it is to be discerned that the view of Islam is that Muslims understand Islam, in all its aspects, profoundly and with thorough insight. Of course profound understanding in religion, consisting of all the Islamic aspects, is a great blessing from God. It is common to what relates to the principles of Islamic beliefs and the Islamic world-view or sense of values, to Islamic morals, ethics and upbringing, to all the aspects of Islamic society, to Islamic worship, to the civil ordinances of Islam, to the particular Islamic customs of the individual and of the society, and more. However, since the second century of the Hejra, the word jurisprudence has become a term for a special area of understanding amongst Muslims that can be said to be jurisprudence in the commands of religion or jurisprudence in the deducing of the commands of religion. In other words "precise and profound deducing of the Islamic regulations of actions from the relevant sources".

The commands or regulations of Islam have not been explained by the Quran or by the Prophet and the Imams in such a way that each and every particularity has been expressly dealt with. Nor is such a thing possible, for events and situations occur in endlessly different forms. Instead, generalities and precepts have been laid before us in the form of a chain of principles.

A person who wants to explain the law of a certain matter to himself or others, must refer to the resources and authentic documents-and later we will clarify the nature of these-and must explain his viewpoint while bearing in mind all the different aspects of those authentic documents. And it is this that is meant by jurisprudence being joined to precise and profound understanding of all aspects.

The masters of jurisprudence (fuqaha) when defining jurisprudence, use the following sentence: Jurisprudence is the study of the secondary commands (i.e. not the principle matters of beliefs and moral perfection, but the commands regulating actions) of the Shari'ah of Islam gained from the detailed resources and proofs.

The Principles of Jurisprudence

For the study of jurisprudence, mastery of many other branches of learning are necessary as a preparation, and these consist of the following:

1. Arabic: syntax, conjugation, vocabulary, semantics, oratory as the Quran and Traditions are in Arabic, without knowing at least the usual standard of the Arabic language and literature it is not possible to benefit from the Quran and the Traditions.
2. Commentary upon the Holy Quran (tafsir). Taking into consideration the fact that the jurisprudents must use the Quran as a point of reference, some knowledge in the study of the commentaries upon the Quran is absolutely essential.
3. Logic, called mantiq in Islam. Every branch of learning in which reasoning is used stands in need of logic.
4. The study of the Traditions. The jurisprudent must have a sound knowledge of the Traditions and must be able to distinguish the different types of Traditions and they become acquainted with the language of the Traditions as a result of their frequent application.
5. The study of the Transmitters (rijal). The study of the Transmitters means knowing the identities and natures of those who have transmitted the Traditions. Later it will be explained how the Traditions existing in the sanctuary of books of Traditions cannot be accepted without examination. The study of the Transmitters is the examining and scrutiny of the men who make up the chains (isnad) of reporters of the Traditions.
6. The study of the Principles of Jurisprudence. The most important branch of learning in preparation for jurisprudence is the principles of jurisprudence, a delightful subject and one originated by Muslims.

The Principles of Jurisprudence is, in reality, the "study of the rules to be used in deducing the Islamic laws" and it teaches us the correct and valid way of deducing from the relevant sources in jurisprudence. In this way, Principles, like logic, is a study of instructions, and is more a skill than a branch of knowledge, meaning that in jurisprudence, that which is discussed is a chain of things that must be, rather than a chain of things which are.

Bearing in mind the fact that it is possible to refer in particular ways to the documents or sources of jurisprudence and to be led to erroneous deductions opposed to the real view of the Islamic Shari'ah, it is necessary for there to be a special field of study that enables one to clearly discern the correct and valid method of using the sources of jurisprudence as a reference to deduce and extract from them the laws of Islam by means of the proofs of reasoning and the proofs provided by God through the Prophet and the Imams. The Principles of Jurisprudence is the field of study that fulfils this purpose.

From the early days of Islam, another word that is more or less synonymous with the word fiqh (jurisprudence) and which has been in common use amongst Muslims is the word ijtihad. In the Muslim world today, especially the Shi'ite world, the words faqih (jurisprudent) and mujtahid are synonymous with each other.

The word ijtihad is from the root juhd which means utter striving. For this reason, a faqih is also called a mujtahid, since he must use all his efforts in deducing Islamic laws (ahkam).

Lesson Two: The Sources of Jurisprudence

In the previous lesson we learned how the study of the principles of jurisprudence teaches us the correct and valid instructions and methods of deducing the laws of the Shari'ah, the divine law of Islam, from the original sources. Now we must learn what those sources are, and how many they are, and whether all the sects and schools of Islam have the same views about each detail of the sources or whether they hold opposing views. If there are differences, what are those differences? First we will discuss the views of the Shi'ite jurisprudents on the sources of jurisprudence and, while explaining each of the various sources, we will also discuss the views of the 'ulema of the other Islamic sects. In the view of Shi'ites (with the exception of a small group who are called akhbariyin, the views of whom will later be discussed), there are four sources for jurisprudence:

1. The Book of God, the Quran, which will from here on be referred to in the concise term of the jurisprudents as "The Book".
2. "Sunnah", meaning the words, actions and silent assertions (taqrir) of the Prophet and the Imams.
3. Consensus or ijma'.
4. Reasoning or 'aql.

These four sources in the terms of the jurisprudents are called the "four proofs" or the adillat ul-arba'ah. Generally they say that the study of jurisprudence is cen-tered around these four proofs. Now, it is necessary for us to give an explanation of each of these four sources and at the same time explain the views of the other Islamic sects and likewise those of the akhbariyyin. We will begin our discussion with the Quran.

The Quran

There is no doubt that the Holy Quran is the first source for the laws and regulations of Islam. Of course the ayah or verses of the Quran are not limited to laws and regulations. In the Quran, hundreds of different types of issues have been introduced, but a part of the Quran, said to consist of about five hundred ayah, from a total of six thousand, six hundred and sixty, i.e. roughly a thirteenth of the Quran, pertains especially to the laws.

From the early days of Islam, Muslims have always used the Quran as the primal point of reference in order to deduce Islamic laws. However, about the same time as the rule of the Safavid dynasty there appeared in Iran a sect manifesting the view that the right of ordinary people to refer to the Quran is forbidden, and they claimed that only the Prophet and the Imams have this right.

In the same way, this group also considered the refer-ral to consensus and reason as being unpermissable, holding that consensus had been introduced by the Sunnis, and that the use of reason is open to error and thus unreliable. In this way they maintained the Sunnah to be the sole source of reference. It was for this reason that they were called the akhbariyyin for akhbar means tradition.

This group, by denying the right of referral to the Quran, consensus and reasoning, were essentially denying ijtihad, for ijtihad, as has been stated, means precise understanding and profound deducing, and it is evident that profound understanding is not possible without making use of reason. This group came to believe that ordinary people, without the medium of a group known as mujtahids, must refer to the traditions for guidance in their daily affairs and actions, just as today they refer to the treatises of the mujtahids. [1]

The appearance of the akhbariyyin and the large numbers that were attracted to them in some cities in the south of Iran and islands of the Gulf and in some of the holy cities of Iraq, was the cause of severe decline. Fortunately, however, with the noteworthy and laudable resistance of the mujtahids of the period, their penetration was firmly checked. Today, apart from a few scattered places, their theories are largely non-existent.

The Sunnah

The Sunnah means the words, actions and assertions of the holy Prophet and the Imams. Clearly it is evident that if by the Holy Prophet a certain law has been verbally explained, or if it is determined how the Prophet performed certain religious obligation, or if it is realised that others used to perform certain religious duties in his presence in a certain way which would earn his blessing and approval, meaning that by his silence he actually gave his endorsement, this is sufficient proof (dalil) for a jurisprudent to consider the action in question to be the actual law of Islam.

About this definition of Sunnah, and it being binding (hujjat) there is no question of argument and no scholar opposes it. The differences that exist on the subject of the Sunnah concern two points. One is the question as to whether only the Sunnah of the Prophet is binding or whether the Sunnah related by the pure Imams is also binding. Our Sunni-Muslim brothers only consider the Sunnah of the Prophet as binding, but the Shi'ites also refer to the words, actions and silent approvals of the holy Imams, in accordance to the traditions of the Prophet which even Sunni Muslims have related and recorded. One of these traditions is this one wherein the Prophet has undoubtedly told us: "I leave behind me two valuable things to which you are to refer, and God forbid that you not refer to them: the Book of God and the people of my House."

The second point is that the related Sunnah of the Prophet of God and the pure Imams is sometimes clear and multi-related, i.e. there are different chains of narrators of the same Tradition, and sometimes suspicious, or, to coin a phrase, a Single Report (khabar al-wahid).

Here the different views vary to an extent that is an excessive exaggeration. Some, like Abu Hanifa, a jurisprudent of one of the four Sunni schools, paid scant attention to the related Traditions; it seems that from all the thousands of Traditions narrated from the Holy Prophet, he considered only seventeen to be reliable.

Others have found confidence even in "weak", unreliable Traditions. But the Shi'ite 'ulema are of the opinion that only reliable traditions are to be given credence. That is, if the people who make up the chain of narrators, called the musnad, are Shi'ite and just, or at least truthful and reliable, then the Tradition itself can be relied upon. So we must know the narrators of the Traditions and must research into their conditions, and, if it becomes determined that all the narrators of a Tradition were truthful and reliable, we rely upon that Tradition.

Many of the 'ulema of the Sunnis have this same idea, and it is for this reason that the study of the Transmitters exists among them. The akhbari Shi'ites, however, who we have mentioned, considered the division of Traditions into the divisions of valid and weak as being uncalled for, and said that all Traditions are reliable, especially those contained in the reliable books. This extreme [2] view is also held by some of the 'ulema of our Sunni brothers.

Consensus

Consensus means the unanimous view of the Muslim 'ulema on a particular issue. In the opinion of the Shi'ite 'ulema, consensus is binding because if all the Muslims have one view, this is proof that the view has been received from the Holy Prophet.

It is impossible for all Muslims to share the same view on a matter if it came from themselves, and thus their consensus is proof of the origin of that view being the Sunnah of the Prophet or an Imam.

For example, if it is clear that on one subject all the Muslims of the Prophet's era, with no exceptions, had a certain view and have performed a certain type of action, this is proof that they were taught it by the Holy Prophet. Likewise, if all the companions of one of the pure Imams who took instructions from none but the Imams all had an identical view about something, this is proof that they acquired that view from the schooling of their Imam. Therefore, in the Shi'ite view, consensus goes back to the Sunnah of the Prophet.

From what has been stated we learn two things:

First, in the Shi'ite view, only the consensus of the 'ulema of the same period as the Prophet or Imams is binding. So, if in these times of ours a consensus occurs about something between all the 'ulema with no exception, this is in no way binding for subsequent 'ulema. Second, in the Shi'ite view, consensus is not genuinely binding in its own right, rather it is binding in as much as it is a means of discovering the Sunnah.

In the view of the 'ulema of our Sunni brothers, however, consensus is a proof in its own right. That is, if the 'ulema of Islam, in their view the management of Islam, are all in agreement upon a certain point of view about a subject in one period (even this period of ours), their view is definitely correct. They claim that it is possible for some of the nation to err, and some not to, but it is not possible for all of them to be in agreement and err.

In the view of our Sunni brothers, complete agreement of all the Muslims in one period is ruled as divine revelation, and thus all the Muslims, at the moment of consensus, are ruled as Prophets, and that which is revealed to them is the law of God and cannot be wrong. [3]

Reason

The binding testimony of reason in the Shi'ite view means that if in a set of circumstances reason has a clear rule, then that rule, because it is definite and absolute, is binding.

Here the question arises as to whether the laws of the Shari'ah are in the domain of reason or not, and to this question we will give an answer when we discuss the generalities of the Principles.

As for the akhbariyyin, whom we have discussed and whose ideas we have shown, they in no way count reason as binding.

Amongst the 'ulema of our Sunni brothers, Abu Hanifa considered analogy (qiyas) to be the fourth proof, and thus in the view of the Hanifa sect, the sources of jurisprudence are four: the Book, the Sunnah, consensus and analogy.

The Maliki and Hanbali Sunnis, especially the Hanbalis, pay no heed whatever to analogy. The Shaf'i Muslims, following their leader, Muhammad ibn Idris Shaf'i, pay more attention to Traditions than the Hanafis and also more attention to analogy than the Maliki and Hanbali Musl ims.

The view of the Shi'ite 'ulema, however, is that because analogy is pure conjecture and surmissal, and because the total of what has been received from the Holy Prophet and the Imams is sufficient for our responsibility, the referral to analogy is strictly forbidden.

Lesson Three: A Brief History

For a student who wishes to study or gather information about a certain branch of learning, it is necessary that he acquaints himself with the origins of that learning, with those who introduced it, with the nature of its development over the centuries, with its notable champions and exponents and with its famous and creditable books.

The study of Principles is one of the studies that was originated and brought up in the surroundings of the culture of Islam. It is generally recognised to have been introduced by Muhammad ibn Idris Shaf'i. Ibn Khaldun in his famous Muqaddamah, in the section in which he discusses the various sciences and skills, tells us, "The first person in the study of the Principles of Jurisprudence to write a book was Shafi'i, who wrote his famous Treatise. In that treatise, he discussed the commands and prohibitions, the Traditions, abrogation and other matters. After him, the Hanifi 'ulema wrote similar books and brought extensive research into practice."

However, as has been pointed our by the late Seyyid Hasan Sadr, may God raise his station [4], various problems of Principles, such as the commands and prohibitions and "generalities and particularities" had previously been raised by Shi'ite 'ulema who had written a treatise about each one of them. So perhaps it can be said that Shafi'i was the first person to write one book about all the issues of Principles that, by his time, had been raised.

Likewise, it has been considered by some orientalists that ijtihad began amongst the Shi'ite some two hundred years after it began amongst the Sunnis; a view they base upon the assumption that during the time of the pure Imams there was no need amongst the Shi'ites for ijtihad and that as a result, there was similarly no need for the preparatory studies of ijtihad. This is a view, however, that is in no way correct.

Ijtihad, in the proper meaning of deducing the consequences (i.e. legislation) of faith from the sources - meaning referring the consequences, or legislation to the sources, and applying the sources to the legislation-has existed amongst Shi'ites ever since the time of the pure Imams, and the pure Imams used to command their companions to engage themselves in this practice.

Furthermore, due to the numerous Traditions about different subjects that have been narrated from the pure Imams, Shi'ite jurisprudence has naturally been considerably enriched, and thus the struggles of ijtihad are somewhat easier. At the same time, however, Shi'ite Islam has never considered itself to be free of the need of tafaqquh and ijtihad, and as has been said, the instructions to carry on the struggle of ijtihad were especially given by the Imams to their outstanding companions. In reliable books the following sentences has been recorded from the Imams: "Upon us is the (general) rules (i.e. the general rules are the responsibility of the Imams) while upon you is the application (i.e. the application of the rules in all the particular circumstances is our responsibility)."

Amonst Shi'ite 'ulema, the first outstanding personality to compile books on Principles and whose views were discussed in Principles for centuries was Seyyid Morteza 'Alam ul Huda Numerous books on Principles were compiled by Seyyid Morteza, the most well-known of which is Thariyah (The Medium).

Seyyid Morteza was the brother of Seyyid Razi who was the compiler of the famous Nahj ul-Balagha, the book of sermons, letters, and sayings of Hazrat Ali ( ( rightly called the Way of Eloquence. Seyyid Morteza lived during the late fourth and early fifth centuries A.H. He died in 436 A.H. He had been the student of the famous mutakallim, or master of theology (kalam), Shaykh ul-Mufid (died 413 A.H.), who in turn had been the pupil of the equally famous Shaykh Saduk (died 381 A.H.).

Following Seyyid Morteza, a famous and important figure in the study of Principles who wrote a book and whose views were for three or four centuries outstandingly influential was the great Shaykh Tusi (died 460 A.H.) who had been the pupil of Seyyid Morteza and who, almost a thousand years ago, founded the scholastic centre of Najaf in Iraq, which is still functioning today.

A later personality of the study of Principles was the late Waheed Bahbahani (1118-1208 A.H.), who in various ways was a very important figure. Many of his pupils in jurisprudence and ijtihad were brought by him to a high level of distinction and excellence. Another was his thorough combat against the previously mentioned akhbariyyin who at that time were accumulating an extraordinary influence. The success of the system of ijtihad over the corrupt system of the akhbariyyin owes much to his efforts.

Over the past hundred years, without doubt the most important figure in the study of Principles is the late Shaykh Morteza Ansari (1214-1281 A.H.), and those who have come after him have all followed his school of thought. Until now no line of thought has been formed that has transformed that of Shaykh Ansari, although many students of his school have formed views, based on Shaykh Ansari's own teachings, that have occasionally abrogated a view of Shaykh Ansari. His two books, Faraid ul-usul and Mukassib (on the subject of jurisprudence) are today both used as textbooks for the students of religion .

Amongst the pupils of the school of Shaykh Ansari the most famous is the late Mulla Khorasani, who has been recorded in the history books as the man who issued the verdict (fatwa), for the constitutional movement in Iran, and who had a major share in the establishment of the constitutional regime.

Amongst the Islamic studies there is none so changeable and variable as the study of Principles and even today there exist outstanding figures who are counted as having their own (legitimate) views in Principles.

The Principles of Jurisprudence, bearing in mind that its concern is the calculation of knowledge and the mind, and has many minute investigations, is a pleasant and heart-warming study that magnetises the mind of a seeker of knowledge. As far as being an exercise in thought and in exact practices of the mind, it stands alongside logic and philosophy. The students of the ancient sciences owe their precise way of thinking largely to the study of Principles.

Lesson Four: The Subjects of the Principles

So as to acquaint the respected reader with the issues of the Principles of Jurisprudence we will discuss the main outline, not in the order followed by the scholars of the Principles, but in an order which will better suit our purposes.

Previously, we stated that the study of Principles is a study of instructions, meaning that it teaches us the way of correctly and validly deducing the commandments of religion from the original sources. Following upon this, the issues of the Principles are all related to the four types of sources, which we spoke about in the second lesson. Thus the issues of the Principles are related either to "the Book", i.e. the Quran, or to the Sunnah (or to both, since both are originally verbal Sources) or to consensus or to reason.

Now I wish to say that it is possible for us occasionally to meet circumstances in which we cannot deduce the necessary Islamic law from the four sources. In such circumstances the Islamic Shari'ah is not silent and has established for us a system of rules and practices from which we can interpret the apparent law.

Acquiring the apparent duty of application (from the requisite rules) after having failed to deduce the actual duty requires that we learn the correct method and instructions of benefitting from those rules.

Thus the study of the Principles, which is a study of instructions, becomes divided in two parts. One part contains instructions for correct and valid deducing of the actual laws of the Shari'ah from the relevant sources. The other part is related to the correct and valid way of benefitting from a chain of rules for application after having lost hope of deducing. The first part is called the principles for deducing (usul ul-estanbatiyah), and the second part is called the principles for application (usulal-'amaliyah) (of the special rules when there is no hope of deducing).

Furthermore, since the principles of deducing relate to deducing either from the Book, from the Sunnah, from consensus or from reasoning, the issues of the principles of deducing are divided into four parts. We will begin our discussion with the Book.

The Binding Testimony of the Quran's Apparent and Accepted Realities (zawahir)

In the Principles of Jurisprudence there are not many discussion particular to the Quran. The discussions relative to the Quran are basically related both to the Book and to the Sunnah. The only discussion centered solely on the Quran concerns the binding testimony of its apparent realities, by which is meant the question of whether the apparent laws of the Quran -regardless of whether or not they are qualified, conditioned and explained by existent or authentic traditions-are binding testimonies for the jurisprudents to unconditionally rely on.

It seems to be surprising that the usulin, those learned in the Principles, should have thought up such a debate. Could the legitimacy of a jurisprudent, relying on the apparent laws of the ayahs or verses of the sacred Quran be ever subject to doubt? This is a discussion that was introduced by the Shi'ite 'ulema of the Principles in order to negate the misgivings of the akhbariyyin, who, as has been shown, believed that other than the holy ones (The Prophet, his daughter and the twelve Imams, peace be upon them all) no one has the right to refer to the Quran, or to deduce the Shari'ah from it. Or, in other words, the eternal benefitting of Muslims from the Quran must be indirect, must be via the Sunnah of the Ahle Bait, the Prophet and the purified members of his House. This claim of the akbariyyin was based upon the Traditions that have forbidden interpreting the Quran by view.

The 'usuliyyin, however, have proved that the deducing of Muslims from the Quran is direct, and that the meaning of the prohibition of 'interpreting the Quran by view' is not that people have no right to understand the Quran by their own thought and reflection, but that the Quran must not be interpreted according to desire and inflated ego.