Shariah, Fiqh
and the Sciences of Nature - Part V
By Professor Nazeer
Ahmed
CA
The Shia-Sunni split runs like
a major fault in Islamic history and on occasions
it bursts forth like a monstrous earthquake. The
split goes back to the earliest days of Islam
when the Companions disagreed on the issue of
succession to the Prophet. It continues to haunt
the Islamic community today. Whether it is Pakistan
or Iraq, hardly a month goes by when there is
some bloodshed in the name of one sect or the
other. To a student of history, this mayhem is
astonishing, considering that the Shia-Sunni differences
are historical, not religious. It is even more
astonishing that on each side of the fence, there
are further subdivisions among sects, sub-sects,
jama’ts and movements, each claiming exclusive
rights to the truth. As a contribution towards
providing some insights into these differences,
we trace here the origins of the Ithna Ashari
(twelver) fiqh, the dominant school of jurisprudence
among Shia Muslims.
The Ithna Ashari School of jurisprudence, also
known as the Ja’afariya fiqh, developed
autonomously and in parallel with the Sunnah Schools.
And like its sister schools, its roots are in
the Qur’an and the Sunnah of the Prophet.
Although it follows an autonomous route for its
sources, on most practical matters the positions
of the Sunnah Schools and the Ja’afariya
School are identical or similar. Indeed, on most
issues, the differences in the positions taken
by the Ja’afariya fiqh and the Sunnah Schools
are smaller than the differences among the Sunnah
Schools themselves.
A student of history must reject the polemical
position taken by some Muslims that there are
only four schools of recognized fiqh, namely,
Hanafi, Maliki, Shafi’i and Hanbali. The
Ja’afariya fiqh is as legitimate as the
Sunnah Schools of fiqh by virtue of the historical
fact that it has flourished since the time of
the Prophet and is accepted by a sizable section
of the Islamic community. We take this position
on the basis of historical continuity, not on
a doctrinal basis. Similarly, the Zaidi School
of fiqh is also historically legitimate although
we have made a conscious decision not to cover
it here because it is followed by a relatively
small number of Muslims.
The Qur’an accords a special place of honor
to the Prophet’s household (“God wishes
to remove from you all impurity, O Members of
the Family and to make you pure and without blemish”,
Qur’an, 33:33). The members of the Prophet’s
household are referred to in the Qur’an
as Ahl-al Bait. Sahih Hadith confirms that the
term Ahl-al Bait refers to Ali (r), Fatima (r),
Hassan (r) and Hussain (r), as well as Aqil, Ja’afar,
Abbas and their offspring. Some other ahadith
refer only to Ali (r), Fatima (r), Hassan (r)
and Hussain (r) as Ahl-al Bait. On his return
from the last pilgrimage, the Prophet stopped
at a place called Gadeer e Qum and declared: “O
people! I have left certain things; if you will
love them you will not go astray. They are the
Book, which is like a rope extending from the
heaven to the earth and my family”. In addition,
ahadith from both Sunni and Shi’a sources
also confirm the exalted position of Ali (r) as
the gateway to Prophetic knowledge and heir to
the Prophet (Hadith: “Ali (r)is to me as
Aaron was to Moses, except that there shall be
no Prophet after me”).
Central to the Ja’afariya fiqh is the doctrine
that the chain of authority for fiqh flows from
the Qur’an to the Sunnah to Ahl-al Bait
and by inference, exclusively to the Imams among
the Ahl-al Bait. By comparison, the Sunni position
accepts the chain of authority from the Qur’an
to the Sunnah to the Ijma of the companions and
is based on the confirmed ahadith: “O people!
I leave for you the Book of Allah and my Sunnah.
If you follow them, you will not go astray”.
And again, “My Ummah shall never agree upon
an error”. The Shia-Sunni positions show
up for the first time with extreme clarity in
the question put to Ali (r) and Uthman (r) by
the committee to nominate a Caliph after the assassination
of Omar ibn al Khattab (r). The question was:
“Will you conduct the affairs of the community
in accordance with the Qur’an, the Sunnah
of the Prophet and the Sunnah of the two Shaykhs
(Abu Bakr and Omar)?” Ali (r) answered that
he would follow the Qur’an and the Sunnah
of the Prophet. Uthman (r) said he would indeed
follow the Qur’an, the Sunnah of the Prophet
and of the two Shaykhs and was nominated as the
Caliph, demonstrating that the majority among
the Companions had accepted this position.
Despite the differences on the issue of succession
and of the disastrous civil wars (657-658 CE),
there were no separate schools of fiqh for the
first one hundred years after the Prophet. The
differences were political; they were not on fiqh
or the Shariah. There are many instances when
Amir Muawiya ibn Abu Sufyan asked for guidance
from Ali (r) on specific issues of fiqh, even
though the two were locked in a bitter civil war.
The Ahl-al Bait, specifically the house of Ali
(r) and Fatima (r), had heard and transmitted
many Ahadith directly from the Prophet. The sayings
of Ali, Nahjul-Balaga, are unsurpassed as a source
for Islamic ethics and teaching.
The crystallization of fiqh as a cultivated discipline
occurred at the time of Imam Ja’afar-as-Saadiq
(d. 765 CE). Imam Ja’afar-as-Saadiq was
a genius - a scholar, teacher, guide and Imam.
He initiated and held halqas (study circles) wherein
some of the greatest scholars of the age would
gather, consult and learn. Imam Abu Haneefa was
a contemporary of Imam Ja’afar and attended
many of these halqas. Imam Abu Haneefa is reported
to have paid tribute to Imam Ja’afar in
these words, “Were it not for the two years
that I spent with Imam Ja’afar as Saadiq
I would still be searching”.
Like Imam Abu Haneefa, Imam Ja’afar as Saadiq
did not write down the fiqh named after him. He
was the teacher who lectured and elaborated on
the principles of jurisprudence using the methodology
of the qura’a (reciters) prevalent in early
Islam. It was left to his disciplines to catalogue
and document the teaching of Imam Ja’afar.
The most important of the Imamiya writer was Muhammed
ibn al Hasan al Qummi (d. 903 CE). It was he who
documented the doctrines of Wilayat and Imamate,
although both doctrines were in existence since
the period of Caliph Ali (r). Wilayat comes from
the word wali (guardian, master, kinsmen) and
is a central Shi’a doctrine. It affirmed
that the guardianship of the Islamic community
after the Prophet must be in the hands of a wali,
the first of whom was Ali (r) ibn Abu Talib. The
community must have a master and such mastership
must reside exclusively and uniquely with Ahl-al
Bait. As God has purified the household of the
Prophet, the Imams are consequently pure and innocent
and are uniquely and exclusively qualified to
provide the wilayat for the community. The Ja’afariya
School accepts the Imamate of twelve Imams: Ali
(r), Hassan (r), Hussain (r), Ali, Zainul Abedin,
Muhammed Baqir, Ja’afar-as-Saadiq, Musa
Kazim, Ali Rida, Jawwad Razi, Hadi, Hasan Askari
and Muhammed Mahdi. Due to its acceptance of twelve
Imams, the Ja’afariya School is referred
to as Ithna Ashari (Those who believe in twelve
Imams). The Ja’afariya School also believes
in Isma, meaning that God shields the designated
Imams from sin, religious error and forgetfulness.
It is in matters of personal law that the Ja’afariya
fiqh has certain differences with Sunni fiqh.
In matters relating to the community, the Ja’afariya
fiqh is stringent, like the Shafi’i fiqh.
On issues that have no precedence, it allows for
ijtihad, much like the Hanafi School, which admits
the process of istihsan.
The development of Ja’afariya fiqh reflects
the political fortunes of the Shi’a movement,
much as the Hanbali fiqh reflects the political
context of Imam Hanbal. After the tragedy of Karbala
(680 CE), the Ja’afariya movement was primarily
apolitical, avoiding a head-on collision with
the Omayyad Caliphs (661-751 CE). The Abbasid
revolution (751 CE) seemed to present some hope
since the Abbasids were fellow Hashemites. These
hopes were dashed as the Abbasids first used the
Shi’as and then persecuted them even more
harshly than had the Umayyad. Bereft of all hope
for restoring to Ahl-al Bait the political authority
they believed they deserved, the Shi’a movement
became (except for the Fatimid interlude- 950-1180CE)
increasingly introspective.
However, there was no escape from the philosophical
controversies raging in the 8th century. Much
like its sister Sunnah Schools, the Ja’afariya
fiqh evolved along two broad lines during this
period- the rationalist and the traditionalist.
The rationalist schools evolved into the Akhbari
School, which emphasized the primacy of relevant
text as a source of fiqh. The acceptable texts
included the Qur’an, Hadith of the Prophet
and the Hadith of the Imams. The traditionalist
Schools coalesced into the Usooli School and emphasized
methodology and principle over textual authenticity.
In its approach, the Usooli School of the Ja’afariya
fiqh was very much like the Usooli Schools of
Imam Abu Haneefa and Imam Shafi’i. And,
like the Hanafi School, it accepted ijtihad as
an acceptable methodology for fiqh where there
was no clear and explicit guidance from the Qur’an
and the Sunnah of the Prophet.
Thus the Ja’afariya and the Sunnah Schools
of fiqh are like different streams taking off
from the same mighty lake and watering the Islamic
landscape from different directions. Their deductions
are often the same because they are based on the
Qur’an and the Sunnah of the Prophet, although
their intermediate sources may be different. Shia-Sunni
differences belong to history, and that is where
they must lay buried.
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