V
LEGISLATION AND LAWS IN
THE IMAMYIA SHIITE SCHOOL

And then we have set you on the right path. Follow it and do not follow the whims of those who are ignorant⁽⁸²⁾.

Islamic Sharia (laws) are a body of divine laws and rules conveyed by the prophet for the purpose of regulating human life and directing it in all aspects of its existence. A notable jurist of the Imamyia shiite, the late al- Sadr defined a religious law as "a legislation issued by God to organize and direct human life"⁽⁸³⁾.

During the lifetime of the Prophet, Muslims obtained the laws directly from him. The Prophet not only conveyed the laws from God but also explained and clarified them. The Quran informs us that Holy Book and the Prophet's traditions are the two sources of legislation and laws as follows: "and then we have set you on the right path. follow it and don't follow the whims of those who are ignorant"⁽⁸⁴⁾, and "whatever the Prophet gives you, accept it; and whatever he forbids you forbear"⁽⁸⁵⁾. These principles were held as supreme guidelines by the Imams of the Prophet Household and their followers who persevered in their scholarly efforts and intellectual and political struggle to protect the Quran and the Prophet's Sunna or tradition. Confirmation of this is found in the following statement by Imam Muhammad al-Baqir: "God left nothing that this nation needed which is not revealed in his book and made clear to the Prophet, and he set bounds to everything, and provided a lead so that these bounds could be identified, and he laid down a penalty for any one who transgress the bounds"⁽⁸⁶⁾.

To impress on his companions and disciples this principle and establish it as an intellectual and legislation method Imam al-Sadiq narrated the following saying by the Prophet: "for every right there is a truth, and for every rightness there is a light, so accept whatever concurs with the Holy Book and reject whatever disagrees with it"⁽⁸⁷⁾. He also reiterated this principle by declaring that "every thing originate in the Holy Book and the Sunna (prophet's tradition) and any saying inconsistent with the holy book is false"⁽⁸⁸⁾. He then specified the sources of laws and rulings issued by the Imams of the Prophet Household in their lectures, replies and declaration as follows:

"When we speak we do in agreement with the Quran and the Sunna"⁽⁸⁹⁾. Commitment to these two sources was further stressed in the following dialogue between Imam Musa ibn Jafar and one of his companion: "The companion asked the Imam: 'Is everything found in the Holy Book and the Prophet's Sunna? or do you contribute your opinions? the Imam replied: 'Everything is found in the Holy Book and the Sunna'⁽⁹⁰⁾.

It may be useful at this point to trace briefly the rise of Islamic theological schools and their historical and ideological roots and in particular the emergence of the Prophet Household's school and development of its distinct character. As it is commonly known, the Prophet's companions had their own political views, rulings and understandings of the Quran and Sunna to the extent that the term 'companion's sect or persuasion'⁽⁹¹⁾, i.e. his understanding of Islam and rulings. In addition the conduct of the companion was coined his Sunna or tradition. According to al-Shatibi, the companion's tradition is "the tradition he applied and adhered to". Abu Hanifa referred to this tradition when he ruled that "if I did not find a lead in the Holy Quran or the prophet's tradition. I would endorse his companions' sayings, choosing from them as I see fit"⁽⁹²⁾.

The significance or precedence assigned to a companion's persuasion is discussed by al-Amadi of the sunni hanbali school as follow:⁽⁹³⁾

Everyone agree that the companion's persuasion regarding issues left to ijtihad⁽⁹⁴⁾ can not be used as a hujjat [evidence or argument] vis-a-vis another companion's persuasion regardless of whether he is on Imam, a judge or a jurist. But there is disagreement regarding whether it can be considered as an evidence against the [opinions] of those who came later and other mujtahideen [learned men]. The Ashaira⁽⁹⁵⁾, al- Mutazila⁽⁹⁶⁾, al-Shafi - in one of his sayings - Ahmed ibn Hanbal - according to one of two traditions reported by him and al-Karkhi were of The favoured opinion that it is not a precedent'.

The Imamiya Shiites, on the other hand, regarded all that issued from Imam Ali and the Imams of his descendants as a precedent which must be followed in view of the documented declarations of the Prophet that Ali is the most learned of all his companions and the authority in rule-making and elaboration of legislation. Support of this standpoint in provided by the following tradition: "After the Prophet recited the Quranic verse: 'And it shall be comprehended by an attentive ear' he turned to Ali and said: 'I have asked my Lord that it be your ears'. Ali said later: 'I never forgot anything I heard from the Prophet'⁽⁹⁷⁾.

On several occasions the Prophet praised Ali's religious knowledge as the following sayings illustrate: "Ali is the most capable judge among you"⁽⁹⁸⁾ and: "I am the city of knowledge and Ali is its gate"⁽⁹⁹⁾, and finally: "I leave 'two great things' [al-Thuqalain] with you - one of them is greater than the other, God's Book and my Household, my posterity. Be careful how you attend to them for the two will be inseparable until they come to me at the pool [paradise]".

The Imamiya Shiite school endorsed. Imam Ali's and his descendants' views on the basic doctrines, the imamate, jurisprudence, commentary and traditions. When theoretical deduction came into use and various' sects such as those of Abu Hanifa, Malik, al-Shafi and Ahmad emerged, the Imamiya school affirmed its adherence to the jurisprudence of Imams Muhammad al- Baqir and Jafar al-Sadiq, the latter of whom taught Abu Hanifa, Malik and a group of jurists from other Islamic sects. The growth and development of the Imamiya school continued under the leadership of the Imams and on the bases of the Holy Book and the Prophet's tradition as the sources of legislation this approach was clearly explained by the late al-Sadr⁽¹⁰⁰⁾.

With regard to the sources of fatwa [religious rules] we see necessary to refer briefly to the two sources principally relied upon in deducing these rules, namely the Holy Book and the Prophet's traditions as narrated by trustworthy and reliable narrators regardless of their sectarian affiliation with regard to Qiyas⁽¹⁰¹⁾ [measurement] and Istihsan⁽¹⁰²⁾ [expediency] we see no reason to depend upon them. And concerning intellectual evidence or reasoning whose legitimacy in jurisprudence has been a point of disagreement, we believe that using it is justified but we have not found a single rule whose proof depends on intellectual evidence per se Everything that has been proven by this method has been established by the Holy Book of the Sunna. Also, Ijma or consensus can not be regarded as a source of legislation in addition to the Holy Book and the tradition but it can be used as a tool of validation in some cases. Consequently, the only acceptable sources of Islamic legislation are the Holy Book and the tradition and those who adhere to them - as the Quran describes them - "shall grasp a firm handle that will never break God hears and knows all"⁽¹⁰³⁾.

94-Ijtihad: logical deduction on a legal or theological issue by a learned jurist or theologian who would be called 'mujtahid' (Translator's note).

95-Asharia: A group founded by Abu al-Hassan al-Ashari (260-324 A.H.) they held that God had eternal attributes distinct from his essence such as his knowledge, speech and that it was by these that he was knowing, seeing and speaking they also maintained that good and evil is willed by God (Translator's note) .

96-Al-Mutazila: a group founded in the second Hijri century by Wasil ibn Ata. They affirmed that God has no attributes distinct from his essence and rejected the doctrine of predestination.

101-Qiyas: It is a method of analogical reasoning used by juriconsults to define a rule which is not explicitly provided for in the Quran or the tradition.

102-Istihsan: It is used in the exegesis of the Quran and the Prophet's tradition and stems from a rejection of Qiyas and acceptance of the expediency rule.