A: Laws Of Shi’a Islam

B: Contracts And Transactions

C: Temporary Marriage

D: Divorce

E: Inheritance

F: Endowments, Gifts And Alms

G: Administration Of Justice

H: Hunting And Slaughtering Of Animals

I: Foods And Beverages

J: Punishments (Hudud)

Ijtihad

Before discussing the beliefs of Twelver Shi’a regarding practical matters and practical fulfilments, it would appear necessary to set forth an introductory statement.

The Shi’a believe that in Islam an order or command is laid down for every matter in life so much so that if a person inflicts a scratch on the body of another, the amount of conciliation money has been prescribed for it. In short, an order has been laid down in Islam for every matter which has been the subject of human requirement or will be so till the Day of Judgement and there is no single matter which is not covered by a relevant command.

The collection of these commands was communicated by Almighty Allah to the Holy Prophet through revelation or inspiration. The Holy Prophet also communicated these commands gradually to the Muslims according to different occurrences, events and needs with which they were confronted. He communicated them generally to those who remained with him during day and night so that they might communicate them to others and thus perform the duty of the propagation of religion.

However, a considerable number of these commands still remained to be communicated. The reason for this was either that factors for their propagation did not arise in the days of the Holy Prophet or that they were not in fact related to the problems and needs of the people of that time or some other reasons necessitated that their propagation should not be resorted to during that period. In short, it was expedient that these commands should be spread gradually keeping in view the exigencies of requirements and the conditions of environments. Hence, a considerable number of these orders were propagated whereas the remaining ones remained non propagated.

Nevertheless, the Holy Prophet of Islam entrusted all these instructions to his successors (the Holy Imams) so that they might gradually communicate them to the people at appropriate times, keeping in view their interests and requirements.

There were many general instructions which possessed particularity and their particular features were not made public during the days of the Holy Prophet as it was not considered expedient to do so. These were, however, made known to the people by the successors of the Holy Prophet. There were many other briefly-worded instructions also which were explained by them as and when necessity arose. This was one side of the picture.

In regards to the other side, the companions and friends of the Holy Prophet differed in their capacity to understand his words because their intellect and capability differed widely and it is evident that everyone benefited from that boundless ocean of knowledge and wisdom according to his intellect and capability. Allah says:

“He sent down water from the sky that flows in the valleys according to their capacities” (13:17).

Or, as a poet says: "However, everyone benefits from my thoughts according to his capacity".

Often it so happened that one of the companions heard an order from the Holy Prophet and another heard from him a contrary order regarding an affair resembling the former. Apparently these two orders appeared to contradict each other, but in reality, there was some distinction between the two matters which was the cause of difference between the two orders.

However, the person who narrated the tradition did not pay heed to this distinction and even if he took note of it, he did not mention it while narrating the tradition. That is why in the present times two traditions appear to us contradicting each other although the factual position is otherwise and each of them is related to a different matter.

Owing to this as well as other reasons, all the Muslims and even the companions and friends of the Holy Prophet, who had been associated with him, were obliged, in order to comprehend the tenets of Islam, to study the traditions very carefully and compare them with one another and to scrutinise the context, particulars and conditions of issuance of particular tradition. As it happens so often that the wording of a tradition appears to give one meaning but on concentrating on the context it is realised that its import is different.

This close study for comprehending the orders is the very thing to which we give the name of Ijtihad.

It is evident that all the companions of the Holy Prophet were not competent to infer and deduce orders from the traditions. And in case those amongst them who possessed such competence quoted the exact words of the tradition which they had heard, they were treated to be only narrators. However, if they explained to others the orders deduced by them from that tradition keeping in view other traditions and various contexts which were associated with it they were treated to be Mujtahids and those who acted according to their opinions were called their Muqallids (Followers) such developments took place during the days of the Holy Prophet and even in his lifetime.

At times the Holy Prophet himself instructed such people who did not possess perfect capability to understand the orders to refer to some of his companions who knew better so that they could perfectly follow and understand an accomplished fact.

By giving a careful thought to what has been stated above we come to the conclusion that, not to talk of other periods, the door of Ijtihad was open even in the days of the Holy Prophet. It should not, however, be forgotten that there is a great difference between the Ijtihad during the days of the Holy Prophet and that of our times. In those days Ijtihad was simple and easy because the companions were living in the days of the Holy Prophet and the means for understanding the meaning of the tradition were abundant.

Furthermore, if there was any confusion or complication in any matter, they could refer directly to the Holy Prophet himself and obtain clarification. 

However, as we are becoming distant from the period of the Holy Prophet the manner of Ijtihad is also becoming more and more different and complicated and greater need is being felt for concerted research and care for collecting the traditions, differentiation of the authentic from the forged and their preference inter se. 

This is due to a large number of opinions, association of Arabs with others, gradual changes in the Arabic language as well as on account of the abundance of traditions - especially due to the fact that for various reasons interested and incompetent people meddled with the traditions and forged a number of them. Consequently, as the distance from the period of the Prophet increased, and as Islam expanded and the number of scholars and narrators grew, the task of Mujtahid became more difficult and complicated. 

However, the door of Ijtihad which was admittedly open in the days of the Prophet is similarly open today and this is a fact which cannot be denied.

Hence, the people always consist of two groups, namely the learned and the ignorant. It is also evident that, according to the dictates of nature and logic, the ignorant people refer to the learned ones in matters about which they themselves are not aware with the result that some people will always be Mujtahid and others will always be Muqallid1.

It is also an admitted fact among the Muslims that Islamic orders should be obtained from one of the following four sources:

(i) Kitab, the Holy Qur’an.

(ii) Sunnah, traditions of the Holy Prophet.

(iii) Aql, dictates of reason.

(iv) Ijma’, consensus of opinion of all Muslims.

There is no difference in this regard between the Shi’a Imamiyah and others. However, in some matters the Shi’a differ from others:

(i) The Shi’a do not at all follow Qiyas (Analogy)2 and a number of traditions have been quoted on this subject from the Holy Imams of the Prophet’s Progeny to the effect that if analogy is resorted to in religious laws the foundation of religion will be demolished. The concept of invalidity of analogy, however, needs detailed discussion which is beyond the scope of this book.

(ii) The Imamiyah believe that traditions of the Holy Prophet should be accepted through the channel of narrations by the people of the Holy Prophet’s Progeny. For example, those traditions should be accepted which are quoted by Imam Ja’far As-Sadiq from his father Imam al-Baqir and by him from his father Imam as-Sajjad and by him from his father Imam al-Husayn and by him from his father Imam ‘Ali and by him from the Holy Prophet.

In this manner the Shi’a receive the tradition of the Holy Prophet through proper channel which ends with the chosen descendants of the Holy Prophet and not through people like Abu Hurayra, Samrah Ibn Jundab, Marwan Ibn Hakam, Imran Ibn Hattan Khariji, Amr Ibn As and others of that type, because they (Shi ‘ah) do not attach any importance to the narrations of people of this type and their real posture is too well-known to need any explanation.

This is so clear that even some learned men among the Sunni have disclosed in their books the weak points of these people in religious·as well as moral affairs3.

(iii) The Imamiyah consider the door of Ijtihad to be always open and as already pointed out their reasoning in this behalf is quite clear. Others have, however, closed this door on the scholars and wise men of the Ummah. However, I am not aware as to when, why and how this door has been closed. It is a matter of great regret that I have not yet met any Sunni scholar who should give satisfactory replies to these questions although it is their duty to provide us sufficient explanation in this regard and tell us why the door of Ijtihad has been closed on them4.

There is no difference between the Shi’a and other Muslims regarding the principles of jurisprudence except in the above-mentioned three points5 and even if there are some differences, they are about legal matters of secondary nature. For example, it is possible that the Shi’a may consider something essential which others may not consider to be essential and vice versa. However, examples of such differences may be found among Sunni scholars or Shi’a scholars also although their source is the same and such differences occur in the Ijtihad of individuals inter se.

Another point which should be mentioned here is that from the Shi’a view-point, a Mujtahid is a person who acquires acumen for Ijtihad after deep and extensive study of the arguments relating to religious laws. In other words, he acquires scientific and intellectual strength by means of which he deduces religious laws from relevant sources and arguments. Such a person can give his opinion on religious matters by dint of his Ijtihad. However, only this much is not sufficient for others to follow him.

On the other hand, to acquire the status of an authority to guide, it is necessary to fulfil some other conditions also besides those essential for Ijtihad - the most important being the attribute of justice.

Attribute of justice is a spiritual state of piety which keeps man away from sins and guides him to the performance of duties and fulfilment of essentials. This state has different stages, of which the most sublime and deeply rooted is the stage of purity which is one of the prerequisites of the offices of the Prophet and Imam.

Of course, the concept of Ijtihad and Taqlid does not arise in evident and admitted religious matters which are quite well-known to everybody (e.g. Prayers being obligatory and usury being prohibited etc.) Similarly, Taqlid is not permissible in matters related to fundamental beliefs (e.g. Monotheism, Prophethood and the Day of Judgement). On the other hand, it is necessary that everyone should acquire knowledge about them with decisive proofs as it suits him because such matters are fundamentals of faith which should be perceived by everyone with proof as articles of faith (although this proof may be quite simple). In these matters neither conjectures and opinions are sufficient nor following others is permissible.

In articles of acts, however, it is correct to follow one’s own Ijtihad as well as to observe Taqlid namely, Ijtihad by those who are competent to draw inferences and Taqlid for those who do not possess sufficient religious knowledge.

The point which appears necessary to be explained at the end of this discussion is that the adults have to perform religious duties with the clear knowledge of the precepts and commands either by way of Ijtihad or Taqlid under the following two conditions:

(i) Worship: Worship consists of functions, the object of which is to strengthen the relationship of mankind with Allah. Hence its validity is based upon the intention of proximity.

Worship is of two kinds namely, (i) Physical like Prayers and Fasting and (ii) Financial like Zakat and Khums.

(ii) Transactions: Transactions mean all matters which define dealings with one another or with regard to themselves. These too are of three kinds, namely, matters which are bilateral, for example, purchase and sale, marriage etc. and matters which are unilateral like divorce and setting the slaves free and matters which relate to man himself like the manner of eating food or wearing dress etc.

Fiqh is the branch of knowledge which explains the laws relating to the subjects falling under four headings: worship, transactions, unilateral obligations and regulations.

Basic worship consists of six things of which two are purely physical (Prayers and Fasting), two purely financial (Zakat and Khums) and two physicals as well as financial (Hajj and Jihad).

In regards to Kaffarah (expiations or atonements) they are special punishments which apply to specific crimes. (The above matters will be explained further in the following discussions).

• 1. In fact, Jjtihad and Taqlid (the Following) have a much wider meaning which covers the entire life of the human beings and does not particularly concern religious matters. As it is not naturally possible that an individual should specialise himself in all arts and sciences, and the specialisation of one person is limited to one or at the most a few branches of knowledge, the field of specialisation of each person is the field of his Ijtihad and he is obliged to follow other specialists in their respective fields.
  For this reason, many saints and sages of the world have followed others (specialists in other fields) in many important matters related to human life. As such it is not something novel that people not conversant with religious matters should refer to the learned in this field. On the other hand, it is a general principle related to the entire human life.
• 2. In religious terminology, analogy means application of an order relating to one matter to another matter resembling the former. For example, if we say that as alcoholic beverages are impure, therefore, all intoxicating things are impure.
  From the Shi’a point of view analogy is something entirely false and not reliable for decision in any matter. A number of traditions have been quoted from the Imams of the Prophet’s Progeny prohibiting action on analogy. (Refer to Wasa’il ash-Shi’a, vol. III, chapter of Qaza).
  As a matter of fact, one of the factors which have made the Sunni Ulama’ act on analogy is, according to them, the deficiency of evidence with regard to certain orders. As is well-known the number of authentic traditions relating to all branches of Jurisprudence which Abu Hanifa had in view, does not exceed thirty. Those conversant with the different extensive branches of Jurisprudence are aware that if these traditions relate to one branch only, they will not suffice for problems relating to other branches. How can it, therefore, be possible to base the entire Jurisprudence on this limited number of traditions only?
  Consequently, their jurists have been compelled to extend their hand to analogy, Istihsan (Approval) and Ijtihad (in a special sense which will be explained later) to solve the juridical problems. However, as the Shi’a possess a large collection of traditions from the Holy Prophet narrated and explained by his Progeny they do not feel any need to resort to analogy (leaving aside the defects and difficulties which are encountered by acting on it).
  One of the clear arguments about the invalidity of action on the basis of Analogy is that the secrets of many religious orders are not fully known to us. Often it so happens that so far as we can perceive some matters resemble one another but according to Islamic laws different orders have been specified for them. For example, we cannot comprehend the difference between alcoholic beverages and other narcotic and intoxicating things although the former are impure and the latters are pure (although the use of all of them may be prohibited). Instances of such distinction are abundant in matters relating to Jurisprudence. On the other hand, in many cases, we feel that there is too much difference between two matters but according to religious law they are governed by one and the same law.
  For example, a barren woman has to observe the same Iddah (during which a divorced or widowed woman may not be married to another man) as is observed by another woman although usually Idda is observed to find out whether the woman is pregnant. These matters clearly show that we are not entitled to deduce inferences by Analogy regarding religious laws.
• 3. It goes without saying that the distinguished author does not mean to say that there were no reliable people among the friends and companions of the Holy Prophet whose traditions would be incredible. Certainly, there were such reliable companions and the traditions quoted by them would be acceptable. However, the concept of purity of the companions and the view that traditions narrated by anyone who is called a companion should be accepted without dispute (as believed by most of the Sunni scholars) cannot be agreed upon and is not compatible with any logic.
  The history of Islam and even the history books written by distinguished Sunni historians are replete with accounts of offences committed by some of the people who are counted among the companions of the Holy Prophet. Is it possible to deny the contents of all these history books and ignore all these offences and silently accept every tradition, the narration of which ends with anyone of the companions? Can any enlightened conscience accept such a proposition?
• 4. One of the matters which is very well-known among the Sunnis and for which no proof exists is the concept of restricting faith to the four famous schools and in other words restricting the right of Ijtihad to only four people and depriving others. None of their scholars has furnished a satisfactory argument for this unjustified privilege and discrimination. I remember that when I had the honour to go to Makkah to perform the pilgrimage of the House of Allah, I, along with some other learned friends, went to see a Sunni scholar, who was one of the teachers of the sacred precinct of Ka’bah and an author of many books.
  No doubt he was an enlightened and learned scholar with a good disposition. On our way we were thinking of propounding a theoretical issue for discussion and benefiting from his knowledge. I thought of the question of restricting faith to four schools. After going through the usual formalities of introduction etc. I asked him, "O our Shaykh! What is the proof of restricting faith to four religious schools?" I was ready for a detailed discussion on the subject between him and myself so that it should lead to the questions of opening the door of Ijtihad. However, I suddenly found that the said scholar remarked in reply to my question without any hesitation or pause and with perfect clarity and sincerity, "There is no proof of this proposition".
  However, it appears that in the eyes of the Sunnis the real object of this restriction is to prevent diversity and dispersion in the Muslim society, although this thinking is absolutely erroneous, because diversity and dispersion has not only not been prevented but has stabilised itself in a pungent form in the four schools and has brought about stagnancy and disorder, particularly in their Jurisprudence,
  On the other hand, Shi’a Jurisprudence has acquired unusual expansion and special stimulation on account of the door of Ijtihad has been kept open and especially due to the following the decrees of the dead scholars (the scholars and Jurists who are no longer alive) being declared unlawful, except when Taqlid (of decrees given by such Jurists during their lifetime) is adhered to (after their death). As it happens, therefore, the distance between the followers of two Shi’a Mujtahids is much lesser than the distance between the followers of the four schools (of Sunnis).
  And if the principle of “Following the most learned scholar” which is well-known among the Shi’a is practised properly and after the passing away of one great authority the Ulama’ of the highest order sit together and select the most learned person this will accord with all the: juridical standards and as a result thereof the consensus of all people: of one period in secondary matters will also be ensured.
• 5. Besides these, Ijtihad has a fundamental and basic difference between us and the Sunnis, because from our point of view Ijtihad is deducing of religious laws from different sources namely, the Holy Qur’an, traditions, logical arguments and consensus of opinion of Muslim community, but according to the Sunni Jurists it is a sort of legislation. To explain the point further, it may be said that when a matter is not discussed in the text and no law with regard to it exists in the Holy Qur’an and traditions of the Holy Prophet, they (the Sunni Ulama) sit down and considering the good and evil of the matter, coin an order or formulate a law (because they believe that in fact no order exists on the subject and the matter has been left over to us).
  They call the formulation of law on these lines as Ijtihad. However, it goes without saying that this type of Ijtihad means that the religious laws are incomplete and depend on the Muslim community for formulation of orders. The Shi’a do not, however, agree with this and believe that in Islam a law exists for every affair and has been promulgated in advance either in the shape of a general rule or in a special manner. Further explanation of the subject is beyond the capacity of this treatise.