Monday 20th of May 2019

A Look at the Islamic School, Jurisprudence

During the days of the Messenger of Allah (s.a.w.), Muslims used to receive the regulations and precepts concerning worship, dealings, and judgements and other social issues, from the Prophet, himself, and had no problem in understanding Islam and obtaining shari'ah laws and regulations.

After his demise, people used to refer to the Book of Allah and the traditions of His Prophet, deriving from them percepts, laws and religious situations, on the authority of the Prophet's Ahlul-Bait and those of the religious scholars of the companions who collectively agreed with the most learned among them, Imam Ali. The Messenger of Allah (s.a.w.) said:

I am leaving among you two precious things: The Book of Allah and my Progeny, my Household. And indeed, Allah, the Benign, the All-Aware has told me that these (two) will never part with each other until they return to me at the Pool of 'Kawther' in Paradise.

He (s.a.w.) also said:

The most learned among you, judicially, is Ali.

After recognizing his knowledge concerning the Book of Allah and the Prophet's tradition. A'isha, one of the Prophet's wives, describes him (Imam Ali) by saying:

He (Imam Ali) was the best informed, among the people, concerning the Prophet's traditions.

Imam Ali was the final authority on deriving the Islamic rules and solving their problems.

As a result of what Islam caused of movements, and developments in the fields of society, state and the life of individuals, new issues and affairs concerning such fields appeared, and which later on, needed an organization, and a declaration of Islamic regulations.

An answer to those needs, the Islamic society witnessed a movement and a development in the fields of jurisprudence, legislation, the appearance of jurisprudence, and induction in a developed way, therefore, different schools, views and sects of jurisprudence appeared.

This happened in its distinguished form at the end of the first and second century of Higra (emigration) at the period of the two Imams, Muhammad al-Baqir and his son, Ja'far al-Sadiq, upon whom the narrators of Hadiths, jurisprudents, commentators, and others, witnessed their knowledge. For instance, Abu Hanifa, Malik and others studied at the hands of Imam Ja'far bin Muhammad al-Sadiq.

The Imams of Ahlul-Bait called on Muslims to follow the Book of Allah and the Prophet's traditions as the only two sources of Islamic laws and legislations while other Islamic schools of jurisprudence depended other additional for the sources in inducting of laws other than the above-mentioned sources. Among them were:

1. Opinion and Analogy, whose cause is inducted
2. Approval
3. The Closing and Opening of Pretexts
4. Simple Interests

The Imams, of Ahlul-Bait, and their students, who were related to their jurisprudential school, used academic ways of dialogues with the chiefs of other diverse schools of jurisprudence and called on them to depend on the Book and the sunnah as the only two sources.

It is worth mentioning, here, that other Islamic schools differ among themselves in accepting and rejecting such sources like analogy and to act with opinion; upon which the Hanafi sect depended. The one who studies these diverse views of jurisprudence, and their principles; which were inducted from them in a comparative study, will find that the reason of difference can be found in two main causes:

1. The difference in accepting and rejecting some narrations, in accordance with the conditions of accepting the narration, with an emphasis on the reliability of the narration.

2. The acceptance of certain Islamic schools of jurisprudence as sources of legislation, other than the Qur'an and the Prophet's traditions; like analogy, approval...etc. and refusing them.

For example, each of the Hanafi, Shafi'i, Maliki, Hanbali, Zaydi, Shi'a Imamiya jurists,...etc. has its own way and conditions for accepting the narrations proved by the Prophetic traditions.

This difference caused by these two foundations affects the jurists's views and opinions. This, in return, leads to the appearance of jurisprudential difference among them. Thus, it is not a difference between the two sects (the Sunnis and the Shi'as) as some try to pretend in order to sow the seed of disunity and discord among the Muslims. In truth, it is only a scholarly difference among the Muslim jurists, altogether. Therefore, it is not true that this scholarly difference be a cause of discord and disunity among the Muslims. Thus, it is obligatory for all the Muslims to have scholarly dialoges and understandings and to open the door of Ijtihad (endeavouring to discover and deduce the Islamic laws and regulations from their sources) by those of the sects who closed it, so that the scholars can reach a satisfied answer and a safe, lawful position. Surely, the scholarly differences based, on safe foundations, should not be considered as a main cause for social and political difference nor to isolate the Muslims who are one single nation and who, altogether, agree that the Book of Allah and the traditions of His noble Prophet Muhammad (s.a.w.) are the origin and main source for Islamic knowledge, law, and thought.

Hereunder are examples of the jurists opinions, showing their points of agreement and disagreement in spite of whether they belong to the Sunnis or the Shi'as:

Both the Imamiya and the Hanbalis say that the 'First Testimony' (in the prayer) is compulsory, whereas the Hanafis, the Shafi'is and the Malikis say that it is recommended, and not compulsory.

The 'Last Testimony' is said by the Shafi'is, the Imamiya and the Hanbalis to be compulsory, whereas, the Malikis and the Hanafis say that it is recommended, and not compulsory.(64)

The Shafi'is, the Malikis and the Hanbalis say. The Taslim (submission in the prayer) is compulsory. the Hanafis say: It is not compulsory, while the Imamiya differ among themselves: some say: It is compulsory, whereas, others say: It is recommended. Among those who regard it as recommended was Mufid, Sheikh Tusi and Allama Hilli.(65)

In respect to collective prayer, the Hanbalis say: It is compulsory on every able person, and if one left it and prayed as an individual, one would be a sinner, although his prayer is correct. On the other hand, the Imamiya, the Hanafis, the Malikis and the majority of the Shafi'is regard it as not compulsory on everyone, nor on a few, but, nonetheless, highly recommended.

Concerning those who deserve the poor-rate (zakat), the Shafi'is and the Hanbalis say that whoever gets half of his requirements is not regarded as poor, and deserves not zakat (poor-rate). The Imamiya and the Malikis say that the poor, according to the religion, is the one who does not have a year's provisions for himself and his household; so, whoever had a farm, a property or cattle, that was insufficient to sustain him and his family for a whole year, deserved to receive a portion of the zakat. The Imamiya, the Shaf'is and the Hanbalis say that whoever was able to earn his bread is not allowed to receive the zakat, whereas, the Hanafis and the Malikis say: He is allowed to receive the zakat and it should be paid to him.

Concerning staying overnight in Muzdalifa during the hajj rites, the Hanafis, the Shafi'is and the Hanbalis say that it is compulsory, and whoever does not stay there will have to offer a sacrifice - as in 'al-Mughni', whereas the Imamiya and the Malikis say: it is not compulsory but recommended.

Regarding the pelting in Jamrah al-Aqaba - (it is the largest symbol of the devil which is situated on the outskirts of Mina towards Mecca, and seven pebbles on the tenth day should be thrown at it, and is considered among the obligations of the pilgrimage (hajj)), - the Malikis, the Hanafis, the Hanbalis and the Imamiya say: It is not allowed to pelt the Jamrah al-Aqaba before dawn, but, if the pilgrim throws before dawn without having an excuse, he should repeat it, again, whereas, they allowed the pilgrims to do so if they have excuses, such as, elderliness, sickness and fear, whereas, the Shafi'is say. It is allowed to do so because the above-mentioned time is recommended and not obligatory.

Concerning the contract of marriage, the Imamiya, the Hanbalis, and the Shafi'is say. The contract cannot be correct through correspondence, whereas the Hanafis say that it is correct to do so if both sides engaged in marriage are in one place.

The Shafi'is and the Malikis say that the guardian is the sole authority who has the right of consent to the marriage of a mentally sane grown, mature girl if she is virgin, but if she is a widow, he shares in her marriage consent, and neither of them has the sole right of consent. Moreover, it is he who concludes the marriage contract, as it can never be concluded by the girl's words alone, although her content is necessary.

The Hanafis say that a mature, sane girl has the right to choose her husband and to conduct the marriage contract herself, irrespective of whether she is virgin or widow, and no one has authority upon her, nor the right to object, provided that she chooses a worthy suitor.

Most of the Imamiya jurist say that the mature, sane girl has the right to conduct all kinds of procedures and deals, including marriage contracts, both as a virgin and a widow. She has, thus, the right to conclude contracts, on her own behalf and on behalf of other than herself, both directly and through agency, in consent and acceptance, similar to the man, without the least difference.(66)
Concerning divorce, Abu Zuhra says:

According to the Hanafi sect, the divorce of everybody is valid, except of the child, the insane and the idiot. So, the divorce is legal even if done jokingly, or by a drunkard, or unwillingly and by the one wearing the ihram (pilgrim robes) for hajj rites."(67)

He adds:

According to the Hanafi sect, the divorce done even by mistake or unintentionally and by the forgetful is valid."(68)

Of the same books he says:

Malik and Shafi' agreed with Abu Hanifa and his followers in respect to the validity of divorce even in jest, while Ahmad (bin Hanbal) did not agree, regarding such a divorce as incorrect."(69)

The Imamiya, on the authority of Ahlul-Bait (a.s.), say:

No divorce (is valid) except for the one who wants it.

These were some examples of comparative jurisprudence, selected to show the reader the real scholarly controversy in the Islamic sects, and how these sects meet in some instances and differ in some other matters, regardless of their Shi'ism or Sunnism.

We have already seen the Hanafi and the Shaf'i agreeing in some cases with the Imamiya, and differing from the Hanbali, and the Maliki, or the Maliki agreeing with the Imamiya and differing from other Sunni sects. This is an explicit fact observed in all the subjects of jurisprudence and its different branches. The jurisprudental dispute cannot be termed a discord between the Shi'ites and the Sunnites. It is a scientific, methodical dispute among the five schools of jurisprudence. We have to look for the legal religious proofs, and commence a scientific discussion until we get to the core of the truth regarding the correctness of the school, as Allah has only a single, practical verdict for every case.

Those who try to illustrate the dispute between the Shi'ites and the Sunnis as if they were against one another, or two contradictory sects, are but falsifying the truth, getting away from the method of sound scientific objectivity, and attempting to serve the enemies of the Islamic Ummah, by sowing the seeds of disunity.

But, the neutral, doctrinal, scholarly method is the one able to unify all the Muslims and to bring them all together.

Sheikh Muhammad Shaltut, the rector of Al-Azhar Theological University (Cairo) had issued a verdict allowing the followers of different Islamic sects - the Hanafis, the Hanbalis, the Malikis and the Shafi'is - to act according to the Imamiya (Shi'a) sect, as well as, according to other Islamic sects, as this, he said, was lawful and correct. He was followed, in his opinion, by the next rector of al-Azhar, Dr. Muhammad Fahham.

It is worthwhile to state the texts of the verdicts issued by them in this respect

The following verdict is issued by Al-Sayyid, His honour, the rector of Al-Azhar Theological University about the legality to worship according to the Imamiya Shi'a Sect:

Sheikh Shaltut was asked that:

Some people say that if a Muslim is to conduct his worship and other deals correctly, he must follow one of the four Islamic sects, among which are not the sects of the Imamiya Shi'a nor the Zaidi Shi'a. So, does your honour accept this idea in its generality, and forbid following, for example, the Twelvers (Imamiya Shi'ites)?

The Sheikh replied:

1. Islam does not compel any of its followers to follow a particular sect, but we say: Every Muslim has the right to 'imitate' first and foremost, any sect that has correctly been quoted and whose relevant precepts have been recorded in its particular books. Whoever follows one of these sects may move to any other, whichever of them, without any restrictions."
2. The Ja'fari School known as the Imamiya school of Twelvers Shi'ites, is a school according to which it is lawful to worship, the same as the other Sunnite sects. It is necessary for the Muslims to know that, and to get rid of unjust prejudice towards particular sects- Because, neither Allah's religion nor His Shari'ah (Islamic laws) are related to a particular sect or restricted to a school, so all of them are able to discover Islamic rules and codes from the Qur'an and the sunnah and are acceptable before Allah, the Almighty; therefore, it is lawful for those who are not able to give opinions, nor to do ijtihad to follow them and practise what they decide in their jurisprudence and there is no difference concerning this in worship and dealings.

The late Dr. Muhammad Muhammad Fahham, the rector of al-Azhar commenting on Shaltut's verdict, said:

May Allah have mercy on Sheikh Shaltut who perceived this significance, and in his explicit verdict, displayed courage, as he allowed acting according to the Imamiya Shi'a School, considering it an Islamic juristic school, founded on the Book, the sunnah and the most correct proof I pray to Allah to grant success to those who act upon this sound course of introduction among the brethren.

And say: Act! Allah will behold your actions, and (so will) His Messenger and the believers. Our last invocation is: Praise be to Allah, Lord of the worlds.

It is obvious, then, that the road to the unification of the nation is wide open before the faithful believers of Islam. They have to unite their ranks, to discard their petty controversies and prejudices, to uproot the causes of division, and to subject the scientific points of view to research and discussion.

We ask Muslims, everywhere, to comprehend the critical, political and social situation through which the ummah is passing, and to look at one another with affection and brotherhood, and to identify those who instigate bigotry, and to put their scientific view points for scientific dialogues and research without any instigation and fanaticism, lest the enemies of Islam, in particular, misuse them while we face Zionism and imperialism and their agents.

Finally, we implore Allah, the High, the Omnipotent, for His help to unify the ranks of this nation, to keep away the elements who agitate commotion amongst the Muslims and who prevent the application of divine laws. Weakening the ranks of the Muslims, and causing division among them, cannot be but a support to the enemies of Allah, and a service to the tyrants and superpowers.

Praise be to Allah, Lord of the Worlds.

source : Al-Serat A Journal of Islamic Studies
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