Chapter 3 : Lesson Three: Jurisprudence Jargon
 

Duty (Taklif)

The Arabic term takli-f is derived from the term kulfah which means difficulty. It is used to mean the forcing of an action. For example the sentence; Zayd forces (kalafa) ?Amr to do an action; he forces him.

Divine laws are called takli-f because they are sent from the Master, glory be to him, and it is necessary for the mukalaf to obey them.

So, takli-f means a forced action given to an adult by the Master, glory be to him. These actions encompass different aspects of man's life, for example his personal life, his worship, his family life and his social life. These laws give order to his life. Examples of these laws are: prayer being obligatory and adultery being forbidden.[13]

Ijtehad

From the beginning of Islam until its middle ages there was another word for fiqh, it was ijtiha-d.

Ijtiha-d is derived from the term juhd which means effort and struggle. The jurist is called a mujtahed because of his efforts and struggle in making religious rulings.

The word istanba-t? has a similar meaning. It is derived from the word nabat? (al-ma-') which literally means taking water out of the ground. A jurist performs a similar action when he struggles to take the religious ruling from its source.[14]

The term ijtiha-d is used by the religious scholars to mean obtaining a proof for a religious ruling.[15]

The Necessity of Ijtihad

Islamic rulings are not mentioned for every situation. That would be impossible, because there are countless situations that happen all the time. Instead it gives general principles and rules.

So, when a jurist must make a ruling for a certain situation he must look into the official sources and give his ruling. Here is where fiqh is synonymous with a deep, precise and inclusive understanding.[16]

Mujtahed

Definition: a mujtahed is one who has reached the level of ijtiha-d in understanding religious laws. This means that he has the ability to deduct religious rulings from the Qura-n and traditions.

This mujtahed is able to deduct religious laws in all the subjects that the mukalaf needs or only certain subjects because of their ease. In the first case he is called a pure mujtahed and in the second case a minor mujtahed.

The sciences that a mujtahed needs to know in order to be able to deduct religious rulings are:

1. Arabic grammar; syntax, morphology, vocabulary and eloquence. The reason for this is that the Qura-n and traditions are in Arabic and it is impossible to understand the Qura-n or the traditions without knowing Arabic.

2. Tafsi-r; the mujtahed will have to refer to the Qura-n so he must have a general knowledge of tafsi-r.

3. Logic; because every deductive skill needs logic. Logic teaches one how to define something and how to deduce something.[17]

4. The science of traditions: a mujtahed must know about traditions and their categories.

5. The science rija-l: This is the science of knowing the people in the chains of narrations; knowing if they are trustworthy or not. The reason for this is that one cannot accept everything that is narrated unless it is narrated by trustworthy people.

6. The principles of jurisprudence: This is one of the most important sciences that the mujtahed must know because they are the rules that are applied in all of the different sections of jurisprudence.

Taqlid

Taqli-d means acting according to the verdict of a mujtahed. Taqli-d shifts the responsibility of finding the religious ruling from the person performing taqli-d to the mujtahed.

Taqli-d is one of the ways of finding a religious ruling, like ijtiha-d. Except that ijtiha-d is a direct way and taqli-d is an indirect way, because one reaches the religious ruling from the ijtiha-d of another.

The proof for taqli-d being permissible or obligatory is the actions of sane people. Sane people find it necessary for an ignorant person to refer to a scholar. The referral of the ignorant to the scholar is something seen in every society that man has been in. It is even seen today. An example of it is when a non-specialist refers to a specialist.[18]

One is dependant on taqli-d in finding out religious rulings except in the cases where one knows a religious rule. One can know a religious rule by having certainty about it which is possible without struggling and without study. Examples of these are some of the obligatory actions, many of the recommended actions and most of the permissible actions which are known by most of the people who live in religious areas. Or, one can know the religious rule because of it being self-evident like the obligation of prayer or the forbiddance of drinking wine.

Precaution

Precaution means: the mukalaf performing everything that he suspects to be obligatory but does not suspect it to be forbidden or refraining from performing anything that he suspects to be forbidden but does not suspect it to be obligatory. The mukalaf must know the different instances of precaution to be able to do this. He must know every place where it is suspected to be obligatory and not suspected to be forbidden or it is suspected to be forbidden and not suspected to be obligatory. This knowledge does not come without looking at verdicts from different mujtaheds.

So, precaution is another tool of finding the religious ruling. It is different than the previous two, ijtiha-d and taqli-d. The mujtahed reaches the religious ruling from his efforts while the person who performs taqli-d obtains the exact rule from the mujtahed. But, the person who performs precaution only gets a general understanding of the rule. The reason for this is that the religious ruling for him is something dangling between obligation, recommendation or permission.[19]

Precaution is a way of becoming certain that one has performed the real religious ruling. Precaution is divided into two categories:

1. Obligatory precaution: the mukalaf must act according to precaution if he wants to stay on the taqli-d of whoever he performs taqli-d to. But, in this ruling, he can act upon the verdict of another scholar if he wants to change the person who he performs taqli-d to. The condition that must be followed is that he must change from the most knowledgeable to the next most knowledgeable and so on.

2. Recommended precaution: the mukalaf does not have to act according to this precaution, but it is better to do so.

Notes:

[13] Muh?ammad Ba-qir al-S?adr, H?alaqah 1, page 126

[14] Shahi-d Mut?t?ahari-, Makhul Ila al-?Ulu-m al-Islami-yyah, page 10

[15] ?Ali- Mishki-ni-, Is?t?ala-h?a-t al-Us?u-l, page 18

[16] Shahi-d Mut?t?ahari-, Makhul Ila al-?Ulu-m al-Islami-yyah, page 8

[17] Ha-di- al-Fad?li-, Du-ru-s fi- al-Fiqh al-Ima-mi-yyah, page 39

[18] Ha-di- al-Fad?li-, Du-ru-s fi- al-Fiqh al-Ima-mi-yyah, pages 252-254

[19] Ha-di- al-Fad?li-, Du-ru-s fi- al-Fiqh al-Ima-mi-yyah, pages 255-256


We learned that Islamic jurisprudence is the knowledge of Islamic laws, what is permissible and what is forbidden, what is obligatory, what is disliked and what is recommended, and what is correct and what is incorrect.

We also know that these Islamic laws are derived from the Qura-n and prophetic traditions.

We also know that the Muslims in the time of the Prophet (s) would take their religious rulings from him. They would take the rulings that had to do with worship, like prayer, pilgrimage, fasting and spiritual purification, or the rulings that had to do transactions like trade, partnership, rent, land, marriage and divorce and other rules that are found in the religion from him.

Then, after his death, some situations arose in one's prayer, fast, life, business, partnership or pilgrimage, etc that did not occur during the Prophet's (s) lifetime. They needed to know what the religious ruling was. In this case they would refer to some of the companions to take the ruling from them. Some took rulings from Ima-m ?Ali- bin Abi- T?a-lib (a), some from ?Abd Allah bin ?Abba-s and some from ?Abd Allah bin Mas?u-d. ?Ali- (a) was the most knowledgeable companion, the Prophet (s) said the following about him: I am the city of knowledge and ?Ali- is its gate.[20]

But, we see some different verdicts passed by different companions and the generation that came after them called the ta-bi?i-n. There were many mujtaheds and many differences in verdicts, but there were no jurisprudential sects like there are today. The Muslims would refer to the scholars amongst the companions, ta-bi?i-n and Ima-ms (a) for the religious rulings that they needed. Ima-m ?Ali- bin al-H?ussayn al-Sajja-d (a), Ima-m Muh?ammad bin ?Ali- al-Ba-qir (a) and Ima-m Ja?far bin Muh?ammad al-S?a-diq (a) lived in these times.

How Jurisprudence sects were formed and when

The divisions of Muslims became widespread after the murder of the third khali-f, ?Uthma-n bin ?Afwa-n. At that time the Muslims swore allegiance to Ima-m ?Ali- bin Abi- T?a-lib (a) but Mu?a-wi-yyah bin Abi- Sufya-n refused to swear allegiance to him. Nobody followed him in this except the people of Syria.

He formed his own, autonomous government there. He also took some jurists and some people who related traditions with him, and thus the major division was started. At the same time where the Muslims and the great companions believed ?Ali- (a) to be the rightful khali-f and the most knowledgeable person war was started between him and Mu?a-wi-yyah bin Abi- Sufya-n. Here, the belief in the Ahlul-Bayt (a) grew. The Ahlul-Bayt are glorified in the Qura-n, Allah said that he took all impurities from them and purified them, a thorough purification, he also made it obligatory to love them and accept their authority.

A Shia of the Ahlul-Bayt (a) is one who loves them, obeys them and believes in their rights.

The Shia had a strong presence during the fight with Mu?a-wi-yyah and after Ima-m ?Ali- bin Abi- T?a-lib's martyrdom when his son al-H?assan bin bint Rasu-l Allah (a) became the khali-f. After that a big argument arose between Ima-m al-H?ussayn bin ?Ali- bin Abi- T?a-lib (a) and Yazi-d bin Mu?a-wi-yyah which lead to a war between them in a place called Karbala-', Iraq. This war took place on the tenth day of the Islamic month 'Muh?arram' in the 61st year after the great migration. Ima-m H?ussayn and 78 of his companions and family members were martyred in this war.

With all of this, there were not jurisprudential sects of Islam as there are today. There were two different sects at that time. One of them followed the Ahlul-Bayt (a) those that Allah cleansed from all impurities and purified them a thorough purification, those who did not say anything except what their forefather, the messenger of Allah (s) said. The Ahlul al-Bayt (a) are none other than Ima-m ?Ali-, H?assan, H?ussayn and the nine Ima-ms that came from his lineage (a). The other group followed the Ummawi- judges. Of course amongst the Ummawi- judges there were different opinions and various verdicts.

At the end of the first century after the great migration different jurists appeared and the Islamic sciences took form. Examples of these jurists are: Sa?i-d bin al-Mussayib, al-H?assan al-Bas?ri- and Sufya-n al-Thu-ri- who lived in the same time as Ima-m Muh?ammad al-Ba-qir bin ?Ali- bin al-H?ussayn bin ?Ali- bin Abi- T?a-lib. The scholars of this time learned from him.

Islamic jurisprudence started to spread out in the second century after the great migration. Islamic jurisprudential sects also started to form because many jurists appeared and they made many religious verdicts which differed from the verdicts of others. Some of the differences include leaving the hands down in prayer or folding them or in some of the rulings regarding wud?u-', fasting, divorce, inheritance, etc.

The jurisprudential sects of Islam that are taught and have scholars and students all over the world are:

1. The Ahlul-Bayt (a) sect. It is also called the Ja?fari- sect or the Shia Ima-mi-yyah sect.

2. The H?anafi- sect.

3. The Ma-liki- sect.

4. The Sha-fi?i- sect.

5. The H?anbali- sect.

Each of these jurisprudential sects will be described:

The Ahlul-Bayt (a) Sect

It must be stated that the Ahlul-Bayt (a) do not have a separate sect, or different laws than their forefather Muh?ammad (s). Instead, they continued his path and took from him. Rules pertaining to worship, contracts and other miscellaneous subjects are all taken from one source full of wisdom and light, which is none other than the Prophet (s). Ima-m S?a-diq (a) said: We do not give any legal rulings or ethical advice unless it was passed to us by our great father who obtained it from the Prophet (s). So, their traditions, unless changed, depict the essence of Islam that was sent from the lord of the worlds.[21]

The Ahlul-Bayt (a) sect is also named the Ja?fari- sect attributed to Ima-m Ja?far S?a-diq bin Muh?ammad Ba-qir bin ?Ali- Zayn al-?A-bidi-n bin al-H?ussayn al-Sibt? bin ?Ali- bin Abi- T?a-lib (a).

It is also named the Shia Ima-mi-yyah sect because of their belief in the 12 Ima-ms from the Ahlul-Bayt (a).

Ima-m Ja?far S?a-diq (a) was the Ima-m of the Muslims in his time. He was the teacher of scholars and famous for his greatness, knowledge, abstinence from the world and worship.

Ima-m Ja?far S?a-diq (a) was born in the 82nd year after the great migration, during the Ummayad reign. He taught and spread Islamic sciences in the prophet's mosque, just like his forefathers did. He would relate traditions from his father, al-Ba-qir (a) who related them from his forefathers all the way up to the messenger of Allah (s). He gave 1000 jurisprudential verdicts and was ahead of the scholars of his time in Islamic sciences, for example theology, tafsi-r and whatever else the Muslims treasured.

There were around 4000 religious students that related traditions from him.

Some of Ima-m S?a-diq's (a) students were Ima-ms of prophetic traditions and leaders of different sects, for example: Ima-m Abi- H?ani-fah (the leader of the H?anafi- sect) and Ima-m Ma-lik bin Uns (the leader of the Ma-liki- sect).

The Ahlul-Bayt jurisprudential sect has spread today to different areas of the Islamic world, for example Iraq, Lebanon, Iran, Pakistan, Indonesia, Turkey, Saudi Arabia, India, Azerbaijan, etc.

The Hanafi Sect

This sect is called the H?anafi- sect because of its ima-m, Abi- H?ani-fah.

Abi- H?ani-fah's full name is al-Nu?ma-n bin Tha-bit bin Zu-t?i- al-Fa-rsi-. His forefathers were from Kabul. Abi- H?ani-fah was born in the 80th year after the great migration and died in the year 150 in Baghdad.

Abi- H?ani-fah grew up in Ku-fa and spent half of his life as a businessman before he became a seminary student and teacher. He studied under H?amma-d bin Abi- Salamah for eighteen years before he became a scholar himself. He was one of the big scholars of his time and reached the level of ijtiha-d. He accepted voting and syllogisms in addition to the Qura-n and prophetic traditions as tools for deriving religious rulings. Many scholars of his time refuted him on this issue, for example Ima-m Muh?ammad al-Ba-qir (a) and Ja?far al-S?a-diq (a). They said that one must stick to the Qura-n and the prophetic traditions.

His sect spread in Iraq and later in other areas of the Islamic world. Abi- H?ani-fah lived for 52 years during the Umayyad reign, but did not accept them. Rather, he believed that the khali-fat should be given to the family of ?Ali- (a). He even ruled in favor of the ?Alawi- uprising lead by Zayd bin ?Ali- bin al-H?ussayn bin ?Ali- bin Abi- T?a-lib and allowed money that was collected from taxes (zaka-t) to be spent on the uprising. It should be mentioned that Zayd bin ?Ali- bin al-H?ussayn taught Abi- H?ani-fah for two years and ?Abd Allah bin al-H?ussayn bin ?Ali- bin Abi- T?a-lib was also one of his teachers.

The Umayad's asked him to become a judge and he refused. Because of this, they put him in prison and whipped him for days, until the bridge of death. Then, the executioner helped him to escape and he escaped to Mecca. He lived moving in between Mecca and Medina as a nomad. In this time he studied for two years under Ima-m S?a-diq (a). He has a famous saying about this: If it wasn't for these two years al-Nu?ma-n would have been destroyed. He stayed there until the Umayyad dynasty collapsed and the Abbasid dynasty rose.

When the Abbasid dynasty came to power, Abi- H?ani-fah refused to help them. Mans?u-r imprisoned him lashed him 120 times. He died as a result of those lashes.

The Maliki Sect

This sect is named so in relation to its founder: Ima-m Ma-lik bin Anas bin Ma-lik al-As?bah?i- who was a member of the Yemenite al-As?bah? tribe.

Ma-lik bin Anas was born in Medina in the 93rd year after the great migration. He was a student of some of the Islamic jurists of his time including Na-fi?, Mawla ?Abd Allah bin ?Umar and Ibn Shaha-b al-Zahri-. He also studied under Ima-m S?a-diq (a) and related traditions from him. He said: I have not seen anyone better than Ja?far bin Muh?ammad.

He lived under Umayyad control for forty years and in this time he did not show himself as a scholar.

When the Umayyad dynasty fell and the Abbasid dynasty came to power he showed inclination towards the family of ?Ali- bin Abi- T?a-lib (a) and ruled that the khalafah was their right. He passed a verdict making it obligatory to aid Muh?ammad bin ?Abd Allah bin al-H?assan bin ?Ali- bin Abi- T?a-lib who started a revolution against the Abbasid dynasty. Ja?far bin Sulayma-n, the Abbasid mayor of Medina, lashed him 50 times. The lashes were so hard that his shoes fell off.

Then the Abbasid khali-f, Abu- Ja?far al-Mans?u-r changed his mind and improved his relations with Ima-m Ma-lik. He asked Ima-m Ma-lik to write a jurisprudential book, in accordance to his sect, to be published and given to the people. Ima-m Ma-lik wrote the book Al-Mu-t?a-', a book of religious verdicts. So, the jurisprudential sect of the Abbasid Empire was Ma-laki-. This book was also sent to Africa and Indonesia. He differed from Abi- H?ani-fah in the view of voting and syllogism. Ima-m Ma-lik died in the 179th year after the great migration.

The Shafi'i Sect

This sect was named after its founder Ima-m Muh?ammad bin Idri-s bin ?Abba-s bin ?Uthma-n Sha-fi? whose lineage traced back to Ha-shim bin ?Abd al-Mut?t?alib, the Prophet's (s) grandfather.

Ima-m Sha-fi?i- was born in the 150th year after the great migration, the same year that Abi- H?ani-fah died. He was an orphan and his mother raised him in Yemen. When he reached 10 years of age he went to Mecca and learned how to read and write. He then went into the desert and lived there for 17 years before he became a religious student. He studied under the scholars of his time, for example Muslim bin Kha-lid al-Makhzu-mi- and Ma-lik bin Anas (the founder of the Ma-liki- sect). He studied the book al-Mu-t?a-'. When Ima-m Ma-lik passed away he returned to Yemen.

During Rashi-d's reign, he was charged with helping the ?Alawi- movement along with others by the governor of Yemen. He was then sent to Baghda-d to be tried. Many were killed but Sha-fi?i- was saved.

He then migrated to Egypt and spread his sect there. His sect was also spread by his students in other parts of the Islamic world. Ima-m Sha-fi?i- died in the 198th year after the great migration.

He has said: If there is a prophetic tradition in opposition to my view, throw my view against the wall.[22]

The Hanbali Sect

This sect was named after its founder Ah?mad bin Muh?ammad bin H?anbal who was an Arab.

He was born in the 164th year after the great migration in Baghda-d. He started his studies there at the age of 15. He was Sha-fi?i-'s and ?Ali Abi- Yusif al-Qa-d?i- (Abi- H?ani-fah's student)'s student. He also studied under different scholars of his time, for example H?ari-z, one of Ima-m S?a-diq's (a) students.

This sect was spread like the other sects. This sect is still present in the Arabic Peninsula and other parts of the Islamic world. Ah?mad bin H?anbal died in the 241st year after the great migration in Baghda-d.

Notes:

[20] Al-Shari-f al-Murtad?a, Tanzi-yyah al-Anbi-yya-, page 212
[21] Ba-qir Shari-f al-Qurayshi-, Tafah?a-t min Si-rah Aimah Ahl al-Bayt (a), page 12
[22] Asad H?aydar, Al-Ima-m al-S?a-diq wa al-Madha-hib al-Arba?h, volume 1, page 175