its study circle programs.

I pray to Allah (S.W.T.) to make this work even more useful than the previous editions.

Rabi'u 'l-Awwal 1413

September 1992

S.M. Rizvi

Toronto, Canada

moral and political, eco­nomic and business, etc. After all, "Muslim" means one who submits to God.

The Qur'an says:

When Allah' and His Messenger have decreed a matter, it is not for any believing man or believing woman to have a choice in their affair. And whosoever disobeys Allah and His Messenger has gone astray into clear error. (Surah Al-Ahzaab, 33:36)

God as the Creator of man and the earth knows better how the human being should live.

The "instruction manual" that God sent for us is known as the Qur'an. But human being is not just any ordinary machine; rather he is more complicated than the most advanced computer a human can ever produce. So God did not only send the Qur'an -- He also sent an instructor known as Prophet Muhammad (PBUH). The Prophet of Islam brought the Qur'an to us and also provided practical examples in his own life. According to Shi'ah Islam, after the Prophet, the Imams of Ahlul-Bayt are the protectors of the Qur'an and the interpreters of its laws.

punishment.

The secular system always swings according to the mood of the people: sometimes, the people feel that capital punishment for murder is not right and so they pressure their representatives to vote against capital punishment. But when crime rates increase and serial murder cases occur more frequently, public opinion changes and the legislators are influenced in favour of capital punishment.

Actually both sides of this issue reflect the Judeo-­Christian basis of the Western society. Judaism, on the one hand, insists on the principle of justice which demands "an eye for an eye". On the other hand, Chris­tianity promotes the principle of mercy by saying "turn thy other cheek."

Islam, the final version of God-made laws, takes a balanced look at the issue of capital punishment and has beautifully accommodated both the principles of justice and mercy in its system. The Western system did not realize the difference between the two principles of justice and mercy: while justice can be demanded and legislated, mercy cannot be forced or made into a law. You can always plead for mercy but you can never demand mercy.

Islam takes this difference into full consideration, and, therefore, it talks about the capital punishment on two different levels: legal and moral. On the legal level, it sanctions the principle of justice by giving the right of retaliation to the victim. But, immediately, the Qur'an moves on to the moral level and strongly recommends the victim to forgo his right of retaliation and either to forgive the criminal

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or to settle for a monetary compen­sation. This issue has been clearly' mentioned in the following verse of the Qur’an:

In it (the Torah), We wrote to them: "A life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and there is retaliation for wounds." But (before you act according to your right, remember that) whosoever forgoes (his right of retaliation), it shall be an expiation for him (against his own sins). (Surah al-Maaida, 5:45)

Thus Islam has very beautifully provided the legal safeguard for human life on the social level and also encouraged mercy from a moral point of view on the individual level. If human beings are left on their own in this issue, they will always swing between the two extremes of justice and mercy -- only Islam, the final version of God-made legal system can accommodate both these principles.

to the Prophet (PBUH). This is quite clear from the following verses of the Qur'an:

He raised up among the common people a Messen­ger from among themselves to recite to them His revelations, to purify them, and to teach them the Book and the wisdom. (Surah al-Jumu’a, 62:2)

And We have revealed to you (0 Muhammad) the Reminder (that is, the Qur'an) so you may clarify to the people what has been revealed to them, and so that they may reflect (Sura an-Nahl, 16:44).

These two verses definitely prove that Prophet Mu­hammad (PBUH) was not just a 'mail-man' whose only job was to deliver the Qur’an to us. He was a teacher and a commentator of the Qur'an. Even his actions are a source of guidance for Muslims:

You have a good example in Allah's Messenger for whosoever hopes for God and the last day, and remembers God oft (Surah al-Ahzaab, 33:21).

The obedience to the Prophet (PBUH) has been considered as the proof of loving Allah (SWT):

Say (OMuhammad), 'If you love Allah, then follow me; (if you do so) Allah will love you and forgive for you your sins.' (Surah aal-‘Imraan, 3:31).

To show the importance of obeying the Prophet (PBUH), Allah (SWT) further says,

Whoever obeys the Prophet has surely obeyed Allah. (Surah an-Nisaa, 4:80)

The Qur'an is not only silent on the details of things which can change over time, it is also silent on the rules of worship which can never change. For example, the Qur'an in

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twenty-five different places commands the Muslims to say the daily prayers (salat), but not once has Allah (SWT) explained how the Muslims are to say their prayers. (The only exception is that of salatu 'l-khawf, the prayer said in a battle-field or when one is in danger.) This silence on the part of the Qur'an, I believe, was for the specific purpose of forcing the people to go to the Prophet (PBUH), ask him for details and follow his example.

Even the actions of the Prophet, observed by his companions, were pre­served in writing. But this process of preserving the sunnah of the Prophet was not immune from mistakes and forgery. Many sayings were invented and wrong­fully attributed to the Prophet during the early period of the Islamic history, specially during the Umayyid era. At times, the rulers bribed the companions to fabricate 'hadith' in their favour. At other times, some people invented ahadith for apparently good causes not realiz­ing that they were using wrong means of trying to make people more religious!

In this background of the early development of hadith, we must find an authentic and informed source for the sunnah of the Prophet. When you look at the Muslims of the Prophet's days, you can find no one who was more knowledgeable, informed, reliable and closer to the Prophet than the Ahlul-Bayt, the family of the Prophet: Fatimah, 'Ali and their sons. After all, it is the Qur' an which testifies to their spiritual purity of the highest form by saying,

“'Verily Allah intends to purify you, O Ahlul-Bayt, a thorough purification." (Surah al-Ahzaab, 33:33)(1)

Combine this verse about the Ahlul-Bayt's purity with the following:

"It is the holy Qur'an in a preserved tablet, none shall touch it but the purified ones." (Surah al-Waqia, 56:79)

The real sense of this verse is that the Qur’an which is "in a preserved tablet" is not accessible to anyone except those who are purified by Him. This shows that the

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Ahlul-Bayt could understand the Qur'an better than any other Muslim. It is for this very reason that Allah (SWT) commanded His Messenger to ask the people to love his Ahlul-Bayt:

“Say (0 Muhammad), 'I do not ask from you any reward (for teachinf Islam to you) except to love my near ones.'” (Surah ash-Shura, 42:23)(1)

This love was made obligatory because it would automatically entail obedience of those whom one loves. If the Ahlul-Bayt were not truthful, reliable, and worthy of following, would Allah(SWT) command us to love them?

These few verses are enough to show that the best commentators of the Qur' an and the most authentic source for the Prophet's sunnah are the Imams of Ahlul-Bayt. The Prophet (PBUH) himself said, "I am leaving among you two worthy things. As long as you hold fast on to them both, you will never go astray after me. One is greater than the other: the Book of Allah (which is a rope suspended from the heaven to the earth) and my descen­dants, my Ahlul-Bayt. They will not separate from each other until they come to me at the (fountain of) Kawthar (in the hereafter). Therefore, see how you recompense me by the way you deal with them."

This is not the place to discuss the authenticity of this hadith, but it will suffice to quote Ibn Hajar al-Makki, a famous Sunni polemicist. After recording this hadith from various companions who had heard it from the Prophet at vari­ous places and

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times, Ibn Hajar says, "And there is no contradiction in these [numerous reports] since there was nothing to prevent the Prophet from repeating [this statement] at those various places because of the impor­tance of the holy Book and the pure Family.”(1)

We can conclude from these verses and the hadith mentioned above that the Ahlul-Bayt are the divinely appointed commentators of the Qur' an, and the most authentic and the best source for the sunnah. It is for this reason that we prefer them to all other sources. Even when we quote a hadith from the Imams of Ahlul-Bayt, it is actually the hadith of the Prophet which they have preserved as the true successors of the last Messenger of God.

Imam Ja'far as-Sadiq (a.s.) says, "My hadith is the hadith of my father, the hadith of my father is that of my grandfather, the hadithof my grandfather is that of Husayn [bin' Ali], the hadith of Husayn is that of Hasan [bin 'Ali], the hadith of Hasan is that of Amiru ‘l-mu’minin ['Abi bin Abi Talib], the hadith of Amiru ‘l-mu’minin is that of the Messenger of God (s.a.w.), and the hadith of the Messenger is a statement of Allah, the Almighty, the Great.” (2)

The historical circumstances did not allow the op­portunity to the first three Imams of Ahlul-Bayt to teach and train their followers in the matters of the shari'ah. It was after the tragedy of Karbala that the Imams, especially the fifth and the sixth Imams, got

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the oppor­tunity to formally train their followers in the shari'ah laws. The training by these Imams actually laid the foundation for the development of ijtihad and taqlid among the Shi'ahs after the occultation of the twelfth Imam Muhammad al-Mahdi (a.s.).

the opinions of the mujtahids of their time in shari'ah matters.

and imitate others in many things; we like to feel that we are taking the advice of experts in matters outside our own knowledge.

Someone who wishes to build a house explains the basic idea of what he wants to the builder and then submits to his advice as to how he should go about the actual construction. The patient follows the treatment advised by his doctor; a litigant consults a lawyer when drawing up his case for a court. The examples are abundant; in most cases the advice is taken voluntarily, but sometimes the citizen may be required by law to seek expert advice and act upon it, before, for example, he is allowed to take some particularly dangerous drug. The clearest example is obviously in case of a legal dispute between two parties, when they are required to take their grievances before a judge and abide by his decision if they cannot settle their dispute amicably.

The practise of taqlid is an example of the same kind: the person who is not an expert in Islamic jurisprudence is legally required to follow the instructions of the expert, that is, the mujtahid. And in this case, the require­ment is an obligation which must be observed, for it is an essential part of the divine law.

Once a person has come to accept Islam, it follows as a necessary consequence that he must adhere to the shari'ah either by following a mujtahid (taqlid) or by undertaking the acquisition of learning

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and piety to such a degree that he becomes a mujtahid himself (ijtihad).

'Umar ibn Hanzalah asked Imam Ja'far as-Sadiq (a.s.) about the legality of two Shi'ahs seeking a verdict from an illegitimate ruler (or a judge appointed by such a ruler) in a dispute over a debt or a legacy. The Imam's answer was that was absolutely forbidden to do so; and then he read the following verse:

" ... (Yet in a dispute) they desire to summon one another to the judgment of the taghut(1) though they were commanded to reject and disbelieve in him.”(Surah an-Nisaa, 4:60)

Then 'Umar ibn Hanzalah asked, "What the two (Shi'ahs) should do then?" The Imam replied, "They must seek out one of your own who narrates our tradi­tions, who is versed in what is permissible and what is forbidden, who is well-acquainted with our laws and ordinances, and accept him as judge and arbiter, for I appoint him as judge over you. If the ruling which he based on our laws is rejected then this rejection will be tantamount to. ignoring the order of Allah (SWT) and rejecting us and rejecting us IS the same as rejecting Allah (SWT), and this is the same as polytheism. (2)

In another hadith, Abi Khadijah relates that Imam Ja'far as-Sadiq (a.s.) sent him to his companions with the following message: "If a dispute or a difference occurs among you about a property, then take care not to seek judgment from those illegitimate [judges]; in­stead, you must seek a person who knows what is permissible and what is forbidden

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by us, for I appoint him as a judge over you. And take care that you do seek judgement against one another with an unjust ruler.”(1)

The least that these two narrations prove is that the Shi'ahs are not allowed to refer to unauthorized judges for solution to their problems, instead they are advised to seek the guidance of those who are well-versed in the teachings of the Ahlul-Bayt. In these ahadith, the prac­tise of seeking the advice of experts in shari'ah laws is taken for granted.(2)

In Practise: There are several documented cases of Shi'ahs who asked the Imams of their time to appoint someone to adjudicate between them in religious prob­lems. Such questions were raised by those who lived far from Medina or those who could not gain access to their Imam in Medina itself.

1. 'Ali ibn al-Musayyab asked Imam 'Ali ar-Riza (a.s.): "I live far away and cannot always come to you, so from whom should I take the guidance for my relig­ion?" The Imam replied, "From Zakariyyah bin Adam al-Qummi ..."

2. 'Abdu ‘l- ‘Aziz and Hasan bin 'Ali bin Yaqtin asked Imam 'Ali ar-Riza (a.s.), "I cannot always reach to you to ask about our problems about religious teach­ings. Is Yunfis bin' Abdu 'r-Rahman trustworthy enough for seeking religious guidance?" The Imam replied in affirmative.

3. 'Abdullah bin Abi Ya'fur asked Imam Ja'far as­-Sadiq (a.s.), "I do not meet you all the times nor is it possible for me to come [to you], and at

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times one of our friends would come to ask a question from me for which I would have no answer." The Imam said, "What does prevent you from [seeking guidance from] Muhammad bin Muslim ath-Thaqafi, for he has heard [many ahadith] from my father and was respectable in his views."

4. Shu'ayb al-'Aqraqufi asked Imam Ja'far as-Sadiq (a.s.), "Sometimes we need to ask about certain things, so whom should we ask?" The Imam replied, "Take guidance from [Abu Basir] al-Asadi.”(1)

These few examples prove beyond doubt that the practise of seeking the guidance of those who are well­ versed in religion has been practically endorsed by the Imams of Ahlul-Bayt (a.s.).

Let me end this section with the statement of Imam Muhammad al-Mahdi (a.s.) in answer to a letter sent by Ishaq bin Ya'qub. The Present Imam (a.s.) says, "As for the newly occurring circumstances, you should turn (for guidance) to the narrators of our hadith, for they are my proof over you and I am Allah's proof."(2)

a long hadith from Imam Ja'far as-Sadiq (a.s.) in which the latter condemned the Jews for following the rabbis. Then the Imam said, "And, similarly, if the lay people of our ummah know in their fuqaha’ (1) open sinfulness, strong racial solidarity, greed for the vanities of this world and its forbidden things, opposition to their opponents who deserve to be helped, and help to their supporters who deserve to be opposed, then whoever from our people follow such fuqaha’, then they are like the Jews who have been condemned for following their rabbis."

Then the Imam says: "But if there is anyone among the fuqaha’ who is in control over his own self, protects his religion, sup­presses his evil desires and is obedient to the com­mands of his Master, then the people should follow him (yuqalliduhu).”

"And these qualities will not be found except in some Shi’ah fuqaha’,not all of them…”(2) These condi­tions in general and the above hadith in particular, make it incumbent upon the believers to be vigilant.

day 'ulama' maintain that it is highly desirable not to just follow any mujtahid but to follow a mujtahid who is al-a'lam. In a general sense this means "the most learned", but in this specific context it means the mujtahid who has the greatest expertise in deriving the rulings of the shari' ah from its sources. The a'lam may be recognized in any of the three ways mentioned above.

However, it is sometimes difficult for the Shiah 'ulama' to distinguish who among all the prominent mujtahids is the most learned, and, as a result, more than one mujtahid may be followed in taqlid at one time (though not, of course, by the same person). This has been the case in the seventies and the eighties; but such multiplicity rarely results in any practical disagreement on legal matters within the Shi'ah community.

prayer; but they differ as to what is the correct course of action when the Imam is in Occultation.

The late Ayatullah Sayyid Muhsin al-Hakim (d. 1970) was of the opinion that salatu 'l-jum'ah is not obligatory during the Occultation of the Imam, but it does not matter if someone performs it supposing that it is expected of him, if he also prays the noon prayer (salatu 'z-zuhr). Ayatullah Sayyid Abul Qasim al-Khu'i says that "one can choose between performing salatu 'z-zuhr or salatu 'l-jum'ah; but once the latter is estab­lished with all its conditions (fulfilled), then it is precau­tionarily obligatory (ihtiyat wajib) to participate in it."

Ayatullah Sayyid Ruhullah al-Khumayni says that "one can choose between performing salatu 'z-zuhr or salatu 'l-jum'ah; but if one chooses the latter, then it is advis­able (mustahab) to precautionarily perform salatu 'z-­zuhr also." Although there are differences in the opinions of these mujtahids, there is no clash that would, for example, prevent the followers of one of them par­ticipating in salatu 'l-jum'ah if it were established.

Secondly, the existence of differences in scientific opinions is not to be taken as a sign of a substantial defect in the quest for knowledge and a reason for abandoning it altogether; it is, rather, a sign that knowl­edge moves in progressive steps towards perfection. Differences of opinions are to be found in all sciences, not just in fiqh.

There may, for example, be more than one opinion about the therapy for a particular patient's disease, and all

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of these opinions may be superseded later on by the development of a new method of dealing with that disease. Thus these observations can be seen to be relevant not only to differences between the opin­ions of contemporary scientists but also to historical differences, and all these differences should be regarded as signs of the dynamism within a science and as stages to be passed in its route to perfection.

It should be remembered that the mujtahid formu­lates his opinions after pushing his research and study as far as he can; that is all that is expected of him, for he is neither inerrant (ma'sum) nor knower of the unseen (‘alimu ‘l-ghayb). If the available sources of the shari'ah lead a mujtahid to a particular conclusion and, let us suppose that on the judgement, he comes to know that the actual shariah law was something else -- then neither will he be punished for issuing that fatwa nor will his followers be punished for acting accordingly, because both had done what was humanly possible for them to do.

want to know the reason and purpose of the legislation of these laws.

This chapter deals with this tendency and attempts to explain the validity or otherwise of such a trend. Before explaining the validity or otherwise of rational­izing the shari' ah laws, I would like to clarify the fun­damental attitude of a Muslim towards the shari'ah.

What, even if their fathers had knowledge of naught and were not rightly-guided? (Surah al-Maaida, 5:104)

This strong condemnation of the idol-worshippers for following their fore-fathers blindly has been re­peated elsewhere:

And when it is said to them, "Follow what Allah has sent down," they say, "No, but we will "follow such things as we found our fathers doing." (Surah al-Baqara, 2:170; Surah Luqman, 31:20)

Islam says that one may consider the views and opinions of others, but that one should only accept that which is reasonable to believe:

“So (O Muhammad) give good tidings to My servants who give ear to the word and follow the fairest of it. Those are the ones whom Allah has guided, and those are men possessed of minds." (Surah az-Zumar, 39:17)

Likewise, in the books of ahadith we find the Prophet and the Imams of Ahlul-Bayt using intellectual arguments in matters of belief to convince their oppo­nents or the seekers of truth. This itself is an example and sunnah for the Muslims to base their belief on understanding and conviction.

But as for the "branches" of religion, Islam expects absolute obedience from the Muslims. The reason for this expectation is very obvious: Once a person has believed, by his own free-will, in Allah as the Creator and the Wise Author of laws, in Muhammad as the infallible Messenger of Allah, and in the Qur'an as the authentic message of Allah-then it follows as a neces­sary consequence that he must adhere to the

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shari' ah laws.

This absolute obedience about the shari'ah laws can be inferred from the following verses:

“It behooves not a believing man and a believing woman that they should have any choice in their affairs when Allah and His Messenger have decided a matter; and whosoever disobeys Allah and His Messenger, he surely has strayed off a manifest straying.” (Surah al-Ahzaab, 33:36)

“O you who believe! Do not take precedence before Allah and His Messenger (in shari'ah matters), and fear Allah; surely Allah is Hearing, Knowing.” (Surah al-Hujuraat, 49:1)

“O you who believe! Obey Allah, obey the Messenger and those who are in authority among you (i.e., the Imams).” (Surah an-Nisaa’, 4:59)

“We have not sent a Messenger but to be obeyed.” (Surah an-Nisaa’, 4:64)

To summarize: In Islamic beliefs, a Muslim is ex­pected to believe only after reflection; and in Islamic laws, he is expected to follow them without any reser­vations.

lying is evil.

2. The laws whose reasons and purposes have been explained in the Qur'an and hadith: For example, intoxicants are forbidden, interest is prohibited, fasting in Ramadhan is obligatory and prayers are a must.

The Quran and hadith have said that intoxicant is one of the main causes of evil because an intoxicated person is no longer in control of himself. Although it took the world a long time and a bitter experience to realize the wide-spread harm of drunkenness, Islam declared its harm and evil fourteen centuries ago by saying

"its sin is greater than its profit." (Surah al-Baqara, 2:219)

Interest is forbidden in Islam. The Qur' an and hadith have explained the harm of interest. Interest leads to destruction of the poor section of the society, and all wealth gravitates towards the already wealthy group.(1)

Fasting is a physical and spiritual training which brings the servants of Allah (SWT) nearer to Him and makes them more obedient to the shari’ah.

Prayers is a means of expressing our gratitude to Allah (SWT):

“O you who believe! Eat of the good things that We have provided you with and thank Allah.” (Surah al-Baqara, 2:172);

it is an important way of achieving peace of mind:

“surely by Allah's remembrance are the hearts set at rest.” (Surah ar-Ra’ad, 13:28);

and it is also a very effective method of making the believer more obedient to the laws of Islam:

“ surely the prayer keeps (one) away from indecency and evil.” (Surah al-Ankaboot, 29:45)

There

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are many ahadith of our Imams explaining the reasons and purposes of many laws of the shari'ah. Shaykh as-Saduq, the famous Shi'ite scholar, has col­lected many of these ahadith in his ‘Ilalu ‘sh-Sharaya’.

3. The laws whose reasons and purposes have not been explained in the Qur'an or hadith, but the rising horizon of human knowledge have helped in under­standing their purpose and usefulness. For example, why pork is forbidden(1); why circumcision is highly recommended by the shari'ah, and why only the fish which have scales is permitted in Shi'ah fiqh.

For the benefit of circumcision, we quote Sherman Silber who says that: "There are a number of reasons why circumcision is beneficial and why it ought best be performed in infancy. First, it prevents cancer of the penis in later life. Cancer of penis generally occurs when there has been carelessness in taking care of one's foreskin. A second benefit of circumcision is that the wives of circumcised men are less commonly afflicted with cancer of the cervix. The most common benefit of circumcision is that it prevents accumulation of oils and secretions (called smegma) under the foreskin, which lead to infection, swelling, and sometimes contraction of the foreskin so the tip of the penis is trapped inside.(2)

About the fish, it has been said that the fish that do not have scales are harmful to human beings. Based on that research, American troops in the east were directed that "tropical marine fishes without scales were to be left alone."

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It must be mentioned here that the reasons of the shari'ah laws which have been discovered by human knowledge cannot be regarded as the actual reason (ra­tio legis) for the legislation of those laws, because the human knowledge is still in its infancy whereas Islam, the final shari' ah of Allah (SWT), is to stay in practise up to the end of this world. However, the scientific facts can be used to explain the usefulness and benefits of the shari'ah laws.

4. The laws whose reasons and purposes have neither been explained in the Qur'an and hadith, nor the new advancement in human knowledge has been able to explain them: For example, why four rak'ats (cycles) in noon, afternoon and night prayers while only three in evening and two in subh prayers.

of human beings; and this includes the laws of the shari'ah.(1) On basis of this belief, we must have confi­dence that all His laws (including those whose purposes are still unknown to us) have a purpose and benefit for human beings.

One more thing which must be clarified at this point is that it is not only the responsibility of the ‘ulama’ (the scholars of Islamic religious sciences) to discover and explain the purpose and reason underlying the shari'ah laws. Their primary duty is to explain the shari'ah laws to the people. The responsibility for discovering and explaining the purposes of the shari' ah laws must equally be shared by the Muslim intellectuals who are experts of modern science.

Unfortunately, very few of the Muslim intellectuals are interested in this aspect of the shari'ah, and those who are interested lack the knowledge of the Qur'an and hadith. A bridge must be built between the religious and worldly sciences; and, thanks be to Allah, some small steps in that direction have been taken in last few years.

The belief that although we might not know the reason and purpose of a certain shari' ah law, it surely has a good reason and useful purpose behind it can be understood from the following episode in the Qur' an. This episode also shows that if we are made aware of its reasons, we would readily admit that it was the very right thing to do.

One day while preaching to his people, Prophet

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Musa (a.s.) thought about himself that Allah has given him a great privilege and that he is the most learned among the mankind. Allah was not pleased with even such a slight indication of pride in Musa's mind, and so Jibrail was sent to inform Musa that there is a person, among the servants of Allah, who is more learned than him. He was also given an address to go and meet this more learned person. Musa, along with one of his disci­ples, went to meet the learned person who has not been named in the Qur'an but our ahadith identify him as Khizr.

The Qur'an narrates in (Surah al-Kahf, 18:60-82) the details of their meeting:

Musa: "Can I follow you so that you may teach me the right knowledge of what you have been taught (by Allah)?"

Khizr: "Surely you cannot have patience with me. How can you have patience in (the things or actions) of which you do not have a comprehen­sive knowledge?"

Musa: "If Allah wills, you will find me patient and I shall not disobey you in any matter."

Khizr: "If you would follow me, then do not question me about anything until I speak to you about it."

So they went their way until they reached a river where they embarked on a boat. When they were close to their destination, Khizr made a hole in the boat.

Musa: "Have you made a hole in it to drown its inmates? Surely you have done a

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grievous thing."

Khizr: "Did I not say that you will not be able to have patience with me?"

Musa: "O Khizr, do not blame me for what I forgot, and do not constrain me to a difficult thing in my affair."

Then they went on until they met a young man. Khizr killed that person.

Musa: "Have you killed an innocent person who had not killed anyone? Certainly you have done an evil thing."

Khizr: "Didn't I say to you that you will not be able to have patience with me."

Musa: "If I ask you about anything after this, then do not keep me in your company; indeed, you shall then have found an excuse in my case (to dismiss me from your company)."

They went on until they came to a town. They asked food from the people of that town, but no one accepted them as guests. In that town, they found a wall which was on the point of falling in ruin, so Khizr repaired the wall and put it into the right state.

Musa: "If you had wished, you might certainly have taken a payment for this work."

Khizr: "This is the parting between you and me. But before you leave, I will inform you of the signifi­cance of my actions which you could not under­stand:

- As for the boat, it belonged to some poor men who worked on the river. I wished to make the boat slightly defective because a king was com­ing

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behind them who seized every perfect boat by force.

- As for the young man, his parents were believ­ers and I feared lest he would oppress them by rebellion and disbelief. And we desired that their Lord might give them in his place a better one than him in purity and nearer to having compas­sion.

- As for the wall, it belonged to two orphan boys in the city, and there was beneath it a treasure belonging to them; so I rebuilt the wall because your Lord desired that when they attain maturity, they should take out their treasure, which was a mercy from your Lord.

"And moreover, I did not do it of my accord. This is the significance of that on which you could not have patience."

(Surah al-Kahf, 18:60-82)

There are many morals in this story. What is relevant to our discussion is that if a great Prophet of Allah like Musa (a.s.) could not fully comprehend the significance of the actions of a fellow human being who was more learned than him, then how can we expect to know the wisdom and purpose of every shari'ah law which has been legislated by Allah (SWT), the Wise, the Omniscient and the Omnipotent Creator of the humans and the world in which they live!

who does ijtihad or who is an expert of Islamic laws.

Fiqh literally means knowledge, and in Islamic ter­minology it means the science of Islamic laws.

Faqih (pl. fuqaha') means the expert of fiqh. The terms "mu­jtahid" and "faqih" mean the same.

point of view. It is an obligation in Islam to study everything which is necessary for the spiritual develop­ment and material well-being of the Muslim community. However, this obligation is of the category which is known as wajib kifa’i, meaning “an obligation which is on every member of the community as long as it is unfulfilled; but as soon as some person or persons has fulfilled it, it is no longer an obligation on those who have not fulfilled it.”

In the present instance, for example, Islamic society needs experts in the medical sciences, in physics and chemistry, in engineering, edu­cation; and as long as there is a lack of expertise in these areas, it is an obligation on the community as a whole to acquire it. This means that a group of Muslims must devote themselves to research so as to benefit the Islamic people. Similarly, an Islamic society without experts in the shari'ah cannot properly consider itself Islamic, and so it is an obligation for a group of persons from this society to devote themselves to the study of the religious sciences to provide proper guidance to all Muslims.

This is such an important obligation that Allah (SWT) has exempted those who go to seek religious knowledge from the duty of jihad. He says:

"It is not (right) for the believers to go forth all together (for jihad). So why should not a party from every section of them (the believers) go forth to become learned in the

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religion, and to warn their people when they return to them-so that haply they may beware?" (Surah at-Tawba, 9:124)

It is clear from many narrations that the Imams of Ahlul-Bayt (a.s.) used to be pleased whenever any of their companions taught religion or gave legal rulings (fatwa) to others. There are several documented cases of Shi'ahs who lived far from Medina asking the Imam of their time to appoint someone in their area to adjudicate between them in religious problems: Zakariyyah ibn Adam al-Qummi and Yunus ibn' Abdu 'r-Rahman, for example, were named by Imam 'Ali ar-Riza (a.s.), to solve disputes in their own districts. (1)

In a famous hadith, 'Umar ibn Hanzalah asked Imam Ja'far as-Sadiq (a.s.) about the legality of two Shi'ahs seeking a verdict from an illegitimate ruler in a dispute over a debt or a legacy. The Imam's answer was that it was absolutely forbidden to do so. Then Ibn Hanzalah asked what the two should do, and the Imam replied:

“They must seek out one of your own who narrates our traditions, who is versed in what is permissible and what is forbidden, who is well-acquainted with our laws and ordinances, and accept him as judge and arbiter, for I appoint him as judge over you…”(2)

Besides these ahadith, we have quite a few sayings of the Imams which tell us what to do if we come across two ahadith which are contradictory or semi-contradic­tory and solving the contradictory ahadith is one of the functions of ijtihad. These

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types of ahadith are known as al-akhbar al-‘ilajiyyah, the ahadith which solve the problems in the process of ijtihad.

What we have mentioned above clearly shows that ijtihad is necessary for the perpetuity of the Islamic legal system.

stands alongside the Qur' an and the sunnah as an independent source of the shari'ah laws; in its new meaning, "ijtihad" is a process of deriving the shari' ah laws from the Qur' an and the sunnah. The first Shi'ah scholar to use the term "ijtihad" in its new meaning was Muhaqqiq al-Hilli (d. 676 A.H.) in his al-Ma’arij. Al-Hilli says, "ijtihad means to strive for deriving the shari'ah laws from their sources."(1)

The change through which the meaning of "ijtihad" has undergone clears the confusion about the legality of ijtihad: some of the sayings of the Imams (a.s.), the writings of their companions and the early Shi'ah ulama condemn ijtihad in its pre-7th century meaning of "ra'iy"; they are not opposing the ijtihad in the post-7th century meaning of "the process of deriving the shari'ah laws from their sources". The condemned ijtihad is a source of the shari'ah laws, while the recommended ijtihad is only the process of deriving the shari'ah laws from their sources. The permissibility of ijtihad in its post-7th century meaning is beyond any doubt.

that method to derive the shari'ah laws. Thus, usulu’l-fiqh is the theory of ijtihad whereas fiqh is the practice of ijtihad.

In the following pages, I would like to give an outline of usulu’l-fiqh and fiqh to familiarize the reader with the system of ijtihad.

source for the shari'ah laws. But he will not consider the dalil dhanni as such because dalil dhanni does not create conviction it just gives rise to assumption. A mujtahid cannot rely on a dhanni proof or source for deriving laws unless the shari'ah itself approves its use for this purpose. Below I will give examples of two dhanni sources, one approved by the shari'ah and another disapproved by it.

The First Example: Among the various categories of hadith, there is a category known as khabar wahid thiqah - a hadith reported by a single reliable person. Khabar wahid thiqah is a dhanni source. Why? Because a hadith reported by a single person does not create conviction about its contents even if the reporter is reliable; there is the chance of forgetting, misunder­standing or unintended misquotation on the part of the truthful, reliable reporter.

However, in spite of being a dhanni source, khabar wahid thiqah is considered by most of Shi'ah mujtahids as a valid source for the shari'ah laws. Why? Because the shari'ah itself has approved it. Verse six of Chapter forty nine (Surah al-Hujuraat, 6:49) says that if a single report (khabar wahid) comes from an unreliable (fasiq) reporter, then it should not be accepted without further verification. The impli­cation of this verse is that if a single report comes from a reliable (thiqah) reporter, then accept it without any need for further verification. Therefore, the mujtahids accept the single hadith narrated by a reliable reporter as a

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source for shari'ah laws because the Qur'an has implicitly approved it.

The Second Example: One of the dhanni sources for the shari'ah laws is qiyas. In Islamic laws, qiyas means analogy. In qiyas, you look at a shari'ah law for one issue and then apply it to another issue because of the similar­ity that exists between the two. Let us suppose that "wine is haram" is a proven law of the shari'ah. You then look at beer and say that 'beer is like wine'; and then you apply the law of wine on beer -- here the prohibition of beer has been proved on basis of qiyas.

Qiyas is a dhanni proof, it does not create conviction because one cannot always know the real reason ('illah in Arabic, ratio legis in Latin) of the shari'ah laws. And since the qat'i sources of the shari'ah have not approved the use of qiyas as a way of deriving Islamic laws, qiyas is not accepted by our mujtahids as a valid source for shari' ah laws.(1)

However, according to most mujtahids, if the shari'ah has explicitly explained the ratio legis ('illah) of a particular law, then the mujtahid can generalize that law for other similar things by the means of qiyas. And in such cases, it is known as qiyas mansusi’l-illah -- an analogy based on the ratio legis explicitly explained (by the shari'ah).

Dalil Shar'i means a source which emanates from religious texts; we may translate it as "legal proof'. Dalil 'aqli means a source which emanates from intellectual argu­ments.

are the implications ofa mujmal? (Mujmal means an oral proof containing a word which has more than one meaning and is used in those meanings equally.)

How do we use the context of the sentence to understand the mujmal word? For example, the word "yad" is used in the Qur'an in the verses of wudu, tayammum and punishment for theft. The word "yad" means palms, forearm and hand. So how do you interpret the word "yad" in such verses? Well, in the verse of wudu it is simple because we have a context; the verse says that wash your "yad up to the elbows". The context ("up to the elbow") helps us in under­standing the meaning of "yad" in the verse of wudu.

narrators into groups and expedites their judgement about hadith narrated through those particular channels.

of proving the existence of an oral proof which is now extinct.

relationship between the laws and those on whom they are to be applied.

v. The relationship between laws and its essential preliminaries as explained in the example of hajj.

applied in a case which has not been mentioned, explicitly or implicitly, in the sources of the shari'ah. Asalatu ‘l-Bara’ah says that since the shari'ah has no opinion in this issue, the Muslims are free to do whatever they like. For example, when dealing with the question of smoking, the mujtahid does not find any opinion about it in the sources of shari'ah. In such a case, he would apply the principle of exoneration and say that "Smoking is not haram."

Asalatu ' l-Ihtiyat means the principle of precau­tion. This principle is applied in a case where there is only partial knowledge about the law; that is, in cases of al-‘ilmu ‘l-ijmali -- where there is a semi-doubt and a semi-certainty. In such cases, the shari'ah expects us to act precautionarily. A most familiar example where this principle is applied is the case of Friday prayer during the major occultation of the Present Imam. We know that on Fridays, one of the two prayers -either Friday prayer or noon prayer- is definitely wajib, but we do not know which one. Application of asalatu ‘l-ihtiyat in this case would mean that it is precautionarily better to pray both prayers to ensure that we have performed what was expected of us.

The last procedural rule is known as Asalatu ‘t-Takhyir. Asalatu ‘t-Takhyir which means the principle of choice. This principle is applied in cases similar to that of asalatu ‘l-ihtiyat, that is, semi-doubt and semi certainty. However, the principle of choice is

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applied where it is not possible to act on both sides of the issue. For example, when dealing with the noon or Friday prayer issue, some mujtahids may conclude that saying both prayers is not practical and specifying one without a clear evidence is not correct -- therefore, they apply the principle of choice and say that one can say either Friday prayer or noon prayer.

it contains the words "rec­ommended" which only means that the act is recom­mended and not wajib. In this case, the nass will be preferred and used as a qualifier for the "apparent" hadith.

One is of a general nature and the other is conditional: the conditional proof curbs the generaliza­tion of the former. For example, one hadith says, "If you break your oath, then you must free a slave;" whereas another hadith says, "If you break your oath, then you must free a Muslim slave." The second hadith will be preferred and used to curb the general implication of the first hadith.

One deals with the legislation of laws and the other restricts its application on certain individuals: the later over-rides the former. For example, one hadith says, "Respect the 'ulama;" while another hadith says, "Do not respect the fasiq 'ulama." The latter hadith limits the application of the former hadith.

(b) If two authentic ahadith contradict each other in such a way that it is not possible to reconcile them together, then both are to be discarded.

(c) If the contradiction is between "convincing oral­proof' and an non-oral, non-convincing proof, then the former is preferred.

(d) If there is contradiction between a convincing proof and a dhanni proof on the one hand and a proce­dural rule on the other, then the former is accepted because the latter is applied only when there is no proof at all.

(e) If there is a contradiction between the principles of bara’ah and of

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istishab, then the latter is preferred.

al-Fatawa al-Wadihah.(1) Ayatullah as-Sadr of Najaf, Iraq was a shinning star among the new generation mujtahids; unfortunately the Shi'ah world was deprived of his knowledge and leadership when he was tortured and killed by Saddam's regime in 1981. According to his classification, which we hope will be adopted by the fiqhi circles of our time all the shari'ah laws are divided into four groups:

Group One: ‘Ibadat -- the Acts of Worship:

Cleanliness

Prayers

Fasting

Pilgrimage to Mecca

Group Two: Financial Laws:

On Social Level:

Zakat

Khums

Land Tax (khiraj)

Tax on the non-Muslims under the protection of an Islamic government (jaziyyah)

Spoils of war (anfal).

(b) On Individual Level:

The laws about the means of possession:

revival of virgin land

hunting

by-products of one's own property

inheritance

loan

mortgage

deeds of gifts

etc.

The laws about the use of possessions:

Business transactions

Exchange of commodities based on compromise

Partnership

Endowment

Legacy

etc.

Group Three: Personal Laws:

Marriage

Divorce

Marital affairs

Eating

Drinking

Dressing

Vows

Oaths

Hunting

Slaughtering

Bidding good and forbidding evil

etc.

Group Four: Social Laws:

Governance

Judiciary

Penal Code

Jihad

etc.

We may add in the list of "social laws" the new chapter started by Ayatullah al-Khu'i known as Kitabu ‘l-Mushtarikat (the Book of Public Property)'(2) which deals with the laws about public road, mosques, schools, welfare homes, rivers and streams, lakes and oceans, and mines.

been floating among the experts of fiqh since the death of Ayatullah Husayn Burujardi about compartmentaliza­tion of ijtihad.

The first person who raised this issue was Shaykh ‘Abdu ‘l-Karim Ha’iri Yazdi (1276-1355 A.H.), who has the credit of revitalizing the Hawza 'Ilmiyyah of Qum. Shaykh Ha’iri’s student, Shahid Murtaza Mutahhari brought this idea in a public forum for the first time in a speech at the seminar organized after the demise of Ayatullah Burujardi in early sixties. He says, "It is better that fiqh be divided into different compartments, and that each group, after attaining the general ability of ijtihad, should specialize in one particular area of fiqh."(1)

This idea is very noble. But two recent developments in the Shi'ah world have made this idea into a necessity. First, the Islamic revolution in Iran has availed an un­precedented opportunity for the Shi'ah mujtahids to work on political, economic, social and moral problems which the Shi'ah community faces in Iran. Second, the large scale migration of Muslims to the West has given rise to issues and problems which were unheard of before. Expecting a single person to fully and compre­hensively provide guidance for all problems is asking for too much. The only solution for the future of the shari'ah is nothing but the compartmentalization of ijtihad.

However, this is not something which can emerge or be created overnight; it has to take its due course. After a couple of generations, hopefully, we might have mu­jtahids specializing in four different areas of fiqh:

1.

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Acts of worship (‘ibadat);

2. Economic problems;

3. Personal laws;

4. Social and Political issues.

And the Shi'ahs of that time will be doing taqliq of either four different mujtahids or of a council of ijtihad composed of mujtahids specializing in their respective fields.

In short, the dynamic spirit inherited by the Shi'ah 'ulama from their Imams will keep the light of ijtihad shining in one form or another. The future, al-hamdulillah, is bright.

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