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Encyclopaedia of Ismailism by Mumtaz Ali Tajddin

The word fiqh is used in the literal sense to mean understanding and in this sense; the words fiqh and fahm are synonymous. The word fiqh was originally used by the Arabs for a camel expert, who could distinguish the pregnant she-camels with others, and thus the expression fahal faqihi was current among them. It indicates deep knowledge and understanding. In addition, the Arabic idiom goes Fala’n la yafaqahu wala yanqahu (So-and-so neither understands nor comprehends). In pre-Islamic days, the term Faqih al-Arab was an appellation given to Harith bin Kaladah. The word fiqh is used on several occasions in the Koran in the meaning of understanding: “What has come to these people that they fail to understand single fact” (4:78) and “They have hearts wherewith they understand not” (7:179). It implies that in the Prophet’s time, the term fiqh was not applied in the legal sense alone but carried a wider meaning. It may be noted that in the early days of Islam, the term fiqh and ilm were frequently used for an understanding of Islam in general. In Tabaqat (2:363) of Ibn Sa’d, the Prophet is reported to have blessed Ibn Abbas (d. 68/687), saying: “O God, give him understanding in religion” (Allahuma faq’hahu fi’din). The year 94/713 is known as sanat al-fuqaha (the year of the jurists), because a number of the celebrated jurists of Medina, notably Sa’id bin al-Musayyib, Abu Bakr bin Abd al-Rahman etc. died in that year (Ibid. 5:143). It seems reasonable to assume that the term fiqh and ilm were separated when jurists and specialists in hadith came into existence towards the end of the first century. It may be gathered from above analysis that the scope of the term fiqh was gradually narrowed down, and ultimately came to be applied to the legal problems. The word fiqh is defined by Raghib in these words: “Fiqh means arriving at the knowledge of the unknown by means of knowledge of the known.” In its technical sense, the word fiqh was restricted to Islamic jurisprudence.

The original source from which not only the basic tenets but also all principles and ordinances of Islam are derived is the divinely revealed Book – Koran, whose all-positive laws have been superiority over man-made laws. The Koran is the primary source of Islamic law. While noting the overriding importance of the Koran as a source of law, it is interesting also to note in the words of N.J. Coulson in Islamic Survey (Edinburgh, 1964, p. 12), “no more than approximately eighty verses deal with legal topics in the strict sense of the term.” When the Islamic commonwealth was founded in Medina in 622 A.D., the Prophet was not only the spiritual leader, but also the supreme judge and authority of the Islamic community. A number of cases would be referred by his followers for his adjudication. Certain of the cases, it is asserted, had been resolved by the adhoc revelation of a Divine ruling on the matter. But if the Koran was silent, or it needed interpretation to solve the problem, it was decided by the Prophet acting either upon the basis of his inspired judgment or even on his own initiative. The Koran says: “If you quarrel about anything among yourselves, refer it to God and His Messenger” (4:59) and “So judge between them by what God has revealed” (5:48).

It might well be that the problems did not arise in the Prophet’s immediate circle, and so the decision had fallen to the responsibility of Prophet’s appointed local agents acting on the basis of what they knew of the Prophet’s policies, with the intent to consult the Prophet when next they returned to Medina. The Prophet had then endorsed, or not, his agents actions. Being the secondary source of Islamic law, the hadith is however judged and valued by the Koran. If it agrees with the Koran, it should be accepted, and if it runs counter to the spirit of the Koranic injunction, it should be rejected.

When the boundaries of Islam expanded and other nations flocked to its fold, disputes also arose due to varying perceptions of law. Conflicting opinions abounded. People with different cultural backgrounds and customs understood the laws differently. The crucial questions that came before Islamic jurisprudence. Should they be left to the conscience of the individuals or should it be legally defined?

In sum, the Koran and the judgments of the Prophet represented the basic sources of law. Who was vested the authority to bring the requisite solutions of the Muslims after the death of the Prophet? Shaikh al-Mufid (d. 413/1022) writes in Awa’il al-maqalat (Tabriz, 1951, p. 35) that, “The Imams take the place of the Prophet in enforcing judgments, seeing to the execution of the legal penalties, safeguarding the law an educating mankind.”

The first school of fiqh in Islam was the Jafari school of Imam Jafar Sadik (d. 148/765), which was contemporaneous with the Sunni Hanafi school of Abu Hanifah (d. 150/767) and Sunni Maliki school of Malik bin Anas (d. 179/795). These three schools were followed by the Shafi’i and Hanbali schools of fiqh. All the founders of the four Sunni schools were directly and indirectly influenced by the Jafari school. Ibn Sa’d writes in Tabaqat (1:47) that, “Indeed, during the Umayyads period, no attention was paid in religious affairs. The people had little knowledge of jurisprudence and religious affairs. No one knew these religious affairs except the people of Medina.” According to Tahmid li’Tarikh al-Falsafa al-Islamia (p. 202), “It is natural that the Shi’ites were the first to record jurisprudence, for their belief in the infallibility of their Imams urged them to write down their judgments and religious opinions.”

The first integral text of Sunni Usul al-fiqh (methodology of jurisprudence) was codified by al-Shafi’i (d. 204/820). There was a considerable temporal gap between al-Shafi’i’s text and the next extant Sunni work on Usul al-fiqh, and it was al-Fusul fi al-usul by Abu Bakr Ahmad bin Ali al-Jassas al-Razi (d. 370/980). The first extant work on Usul al-fiqh in the Twelver Shi’ite tradition was al-Tazkirah bi-usul al-fiqh by Shaikh al-Mufid (d. 413/1022).

In sum, there were 34 Sunni jurists who compiled their works on jurisprudence between al-Shafi’i (d. 204/820) and Qadi Abdul Jabbar (d. 415/1024). On the other hand, there were 30 Shi’ite jurists who wrote texts on jurisprudence between Shaikh al-Mufid (d. 413/1022) and Mirza Abul Kassim al-Qummi (d. 1231/1816).

In the Sunni tradition, ijtihad stands as the third source after Koran and hadith, from which the laws of Islam are drawn. The word ijtihad is derived from jahd meaning exerting oneself to the utmost or to the best of one’s ability. Thus, ijtihad literally conveys the same significance and is technically applicable to a lawyer’s exerting the faculties of mind to the utmost for the purpose of forming an opinion in a case of law respecting a doubtful and difficult point. The four Sunni Imams, Abu Hanifah (d. 150/767), Malik bin Anas (d. 179/795), Shafi’i (d. 204/820) and Ahmad bin Hanbal (d. 241/856) had agreed in giving ijtihad an important place in legislation.

The use of the term ijtihad to mean the ability to arrive at a legal ruling on the basis of individual investigation was at first rejected by Shi’ite juristsconsults but later incorporated into the Twelver Shi’ite legal system.

The sphere of ijtihad has been made wide to fulfill all the requirements of the Muslim community, which are not met with expressly in the Koran and the hadith. The jurists have endeavoured to meet these demands by various methods, technically known as Qiyas, Istihsan, Istislah and Istidlal.

Qiyas means measuring by or comparing with or judging by comparing with a thing. The word qiyas is derived from the Jewish term hiqqish, from an Aramaic root, meaning to beat together. In Arabic usage the word means the reasoning based on analogy. This system associated primarily with the Sunni Hanafi very strongly. Abu Hanifah came first for criticism by Malik bin Anas and Shafi’i for introducing this principle. The legitimacy of this method was strongly contested by Imam Muhammad al-Bakir and Imam Jafar Sadik with Abu Hanifah and criticized him for applying analogy in religious matter. The Sunni Shafi’i did not accept analogy. Later, they recognized it begrudgingly and felt that it left too much room for human authority to shape the interpretation of Islamic law. Thus, the Shafi’i scholars adopted it, notably al-Khatib al-Baghdadi (d. 463/1071). The Twelver Shi’ites choice of affiliation with the Shafi’is school was already established in the 10th century. Ibn al-Junayd al-Iskafi was prolific Shi’ite jurist in Baghdad, who compiled a twenty-volume work on Shi’ite law entitled Tahzib al-Shi’ah li’Ahkam al-Shariah, and accepted the doctrine of qiyas. Abu Jafar al-Tusi (d. 460/1067), Sharif al-Murtada (d. 436/1044) and al-Mufid (d. 413/1022) approved of Ibn Junayd’s opinion for qiyas. Thus, the influence of Sunni law was well established in Shi’ite society. Allama al-Hilli (d. 726/1325) also accepted in his writings an even greater portion of Sunni legal methodology. The Sunni track was then followed by al-Shahid al-Awwal (d. 786/1384), Ali bin Abdul Ali al-Karaki (d. 940/1534) and al-Shahid al-Thani (d. 965/1558).

Earlier, the Twelver Shi’ite jurists did not accept qiyas (analogy) as one of the sources of jurisprudence, but they eventually developed their usual al-fiqh (methodology of jurisprudence), so that there would be four sources, substituting dalil al-aql (evidence of reason) for qiyas. Thus, the Shi’ite sources of law became the Koran, Hadith, Ijma and Dalil al-aql, corresponding to the usual Sunni order.

Istihsan means considering a thing to be good or preferring it. When a deduction based on analogy is not acceptable, the jurists are at liberty to reject the same, and to adopt instead a rule, which is conductive to public good. This method is peculiar in Sunni Hanafi, but owing to strong opposition from other schools of thought, it has not been developed to its full extent. Istislah is another alternative in place of istihsan. The Sunni Maliki adopted a similar rule under the name of Istislah means a deduction of law based on consideration of public good.

Istidlal means the inferring of one thing from another. It is recognized that customs prevailed in Arabia at the advent of Islam, and were not abrogated by Islam, have the force of law. The Sunni Hanafi lays special stress on it.

Ijma is a word derived from jam means collecting or gathering together, and ijma carries the double significance of composing and settling a thing, which has been unsettled and hence “determining and resolving upon an affair.” In the terminology of the jurists, ijma means a consensus of opinion of the jurists. The acceptance of ijma (consensus) dates back to Shafi’i (d. 204/820). The Hanbalis gave it the narrowest of interpretations and would abide by the ijma only of the Companions of the Prophet, while the Hanafis, for example, accepted the opinions of the jurists of any age. The Malikis would abide by the ijma of the scholars of Medina, which was sanctified by association with the Prophet. The Shi’ites however rejected the doctrine of ijma. Though the principle of ijma remained effective among the Sunnis, but it never assume the form of a permanent legislative institution, probably because it went against the political interests of the Umayyads and the Abbasids.

In the absence of their Imam, the Twelver Shi’ites ultimately adopted the Sunni principle of legal consensus (ijma). It was nearly impossible for the Shi’ites to avoid mixing with the Sunnis in the academic realm because Sunnis controlled the government and the schools. The professors were also Sunnis and the common texts were Sunni works. The Sunni dominance in society affected Shi’ite religious and intellectual history to great extent. Both Kashani (d. 1091/1680) and Karaki (d. 940/1534) however claim that the Shi’ite jurists’ adoption of Sunni methods was unintentional due to lack of awareness or because they became confused or confounded. Thus, the image of Jafari fiqah was almost changed, which had been however began already in 10th century.

The reason for incorporation of the Sunni law into the Shi’ite society is also given by Qadi Noman (d. 363/974) in Ikhitilaf usual al-madhahib (ed. S.T. Lokhandwalla, Simla, 1972, pp. 5-6). He writes, “When the Shi’a were incapable of understanding the Koran or the Sunnah, they disagreed, and derived rulings for the Muslim community according to their own fancy. They did this to such degree that they were reluctant to refer the matters which they disputed to those to whom God had commanded them to consult, out of covetousness for their dominant position and so that those over whom they claimed to have authority might not view them as incapable and subsequently cease to follow them.” Here Qadi Noman asserts that the Sunni jurists have made unfounded claims to exclusive religious authority and this usurped the authority of the Imams. Difference of opinion on legal matters result from refusal to consult the Imams, whose authority is uniquely valid.

The Shi’ite jurists al-Astarabadi (d. 1036/1626) writes: “The consensus of the Muslim community is not incontestable; rather it is known to be invalid” (ijma’u ‘l-ummati ghayru musallamin bal ma’lumu ‘l-butlan). He also insisted that it was groundless and the Sunni invention: “The authority of consensus is one of the contrivances and inventions of the Sunnis” (inna hujjiyata ‘l-ijm’i min tadabiri ‘l-ammati wa’khtira’atihim), vide al-Fawa’id al-madaniyah (Tehran, 1904, pp. 13 and 112). Similarly, al-Hurr al-Amili writes in al-Fawa’id al-tusiyah (Qumm, 1983, pp. 403-5) that, “The truth is that consensus actually comes from the Sunnis, and not from the Shi’ites, so how could there be any authority in it? The early Shi’ite scholars have opposed to it.” He also goes on to argue that the concept of equally valid competing opinions must be unsound, since the Sunnis use this as an excuse for the wars, which took place among the Companions during Ali’s caliphate.

During the Safavid empire in Iran, the latent differences in the Twelver Shi’ites came readily to the fore in the flourishing liberty of the Shi’ite Mujtahids. Two major schools of theological thought emerged in the Shi’ite society. The majority stressed constant references to the first principles, to all the sources (usul) of law : these were the Koran, Hadith, and the reports of the Imams, consensus and intellect. They became known as the Usuli, and whose prominent scholars were Abdul Jalil Qazwini, Muntajab al-Din al-Razi (d. 600/1203).

But a vigorously protesting movement arose against the Usuli, and threw doubt on the validity of consensus as an independent basis of law and stressed the massive use of the reports (akhbar) of the Prophet and the Imams, and they became known as the Akhbari. Prominent scholars of the Akhbari heyday include Muhammad Amin al-Astrabadi (d. 1036/1626), Hussain bin Shihabuddin al-Karaki (d. 1076/1665), Muhsin al-Fayd al-Kashani (d. 1091/1680), Muhammad bin al-Hasan al-Hurr al-Amili (d. 1099/1688) and Nimatullah al-Jazairi (d. 1112/1701). The Akhbari writings not only waged propaganda that the Shi’ite scholars conceived of the Twelvers as a professional organization based on the exclusive authority of jurists in the 17th century and from the Sunnis. Although the Akhbari movement maintained a continual though limited presence from the 10th until the 16th century, there was a resurgence of the movement in the 17th century and it remained very strong for the next one hundred and fifty years or so. Akhbari and Usuli are therefore two groups within Shi’ism parallel to, for example, the Shafi’i and Maliki in the Sunnis. The Akhbarism has since died out in Iran and Iraq, but their scholarly tradition has continued on a much smaller scale in Bahrain, eastern Saudi Arabia, and parts of India until the present.

After the death of Imam Jafar Sadik, the period of concealment started in the Ismaili history. The followers for the most part lost their direct contact with the Imams, therefore, they continued to apply the Jafari fiqh in religious affairs. When the period of concealment ended, and the Fatimid Caliphate came into existence in 297/910, the Jafari fiqh seems to have lost its original form and spirit. Thus, a refined fiqh had been codified in the period of Imam al-Muizz (d. 365/975) in Cairo. It is related that once a large number of da’is were at the court of Imam al-Muizz. The chief topic of conversation was the variations in religious practices and laws, and how erroneous opinion had crept into the Pure Path, the true Shari’ah. This was strongly deprecated and the Imam laid down the principle that the people should always follow in the footsteps of the previous generations. Then he cited the famous hadith of the Prophet: “When innovations appear in my community, let the learned man make manifest his learning or else the curse of God be upon him.” The turning to Qadi Noman (d. 363/974), he said, “You are the person, O’Noman, who is indicated in this hadith.” The Imam thereupon commissioned Qadi Noman to compose Daim al-Islam and explained to him the roots (usul) and branches (furu) of the law. The Imam related to him authentic traditions from his forefathers, i.e., the Imams of the House of the Prophet and the traditions of the Prophet himself, and distinguished those concerning which the reporters had differed. Qadi Noman thus composed Daim al-Islam as designed by Imam al-Muizz and he used to get it revised by the Imam chapter by chapter, and the Imam rejected what was wrong and retained what was right. It is to be added that we have a letter of Imam al-Hakim, dated 20 Dhu’l-qada, 391/12 October, 1001, addressed to Harun bin Muhammad, the da’i of Yamen, which makes the Daim al-Islam the paramount authority. Idris Imad al-din (d. 872/1468) cited the actual words of Imam al-Hakim in his Idah al-l’lam wa Ibanat al-Hidayat, which reads: “Your answers to those who question you concerning legal questions about what is forbidden and what is allowed should be from the Daim al-Islam in preference to all the other books which have been handed down. For matters on which the Daim al-Islam is silent, it is permissible to consult other authorities.” These authorities are the books of Qadi Noman, firstly, the Mukhtasar al-Athar and Yanbu; both of them being of equal weight. Secondly, the Ikhbar, Iqtisar and al-Qasidat al-Muntakhaba, and other legal works of Qadi Noman; and the later works are Taqwim al-Ahkam, and Kitab al-Najah.

Qadi Noman writes in Ikhtilaf usual al-madhahib that the Fatimid Imam is the ultimate source of legal authority. He rejects all other sources of authority and rejects as well the Sunni methodology of jurisprudence, including taqlid, ijma, nazar, qiyas, istihsan and ijtihad. In a letter of appointment issued to Qadi Noman on 28 Rabi I, 343/30 September, 954, Imam al-Muizz explains the Ismaili system of legal authority quite simply and clearly. He instructed the new judge that when confronted with a problem, he should first consult the Koran, then the hadith, then the opinions of the earlier Imams. If the problem remains unsolved at this point, he should refer directly to Imam al-Muizz himself and the Imam will provide him with the correct answer. (vide Ikhtilaf usual al-madhahib, p. 21). Finally, Noman says that there are only three foundations of the law: Koran, Sunnah and the word of the Imam (al’amalu bi-zahiran kitab wa sunnah wa qawl al-i’imah)

Yaqub bin Killis (d. 380/991), the first Fatimid vizir in the period of Imam al-Aziz (d. 386/996) is reported to have composed a book on fiqh, entitled Musannaf al-Wazir. In this he closely followed Qadi Noman, and imitated his method and style.

The Ismailis have their Imam in every age means a living book, they need nothing to knock another door for solving their problems, and their source of authority in Islamic jurisprudence is the Koran, hadith, the rulings of the earlier Imams and finally the Present Imam. The Ismailis hold that the Imam of the age is the supreme authority to exercise ijtihad (consensus), which includes qiyas (analogy), istihsan (equity), istislah (public good) and istidlal (inference). Devin J. Stewart writes in Islamic Legal Orthodoxy (Salt Lake, 1998, p. 177) that, “The Nizari branch of Ismailis, the followers of the Agha Khan, vest all legal authority in their Imam, who is termed “Mawlana Hazar Imam” (al-Imam al-Hadir), meaning the Imam who is Present and not in occultation.”

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