History and Fiqh

• Some knowledge of history is essential to understand how our Aimmah al-Athaar(A) propagated the knowledge of Fiqh and also understand the philosophy and logic of some masail (rulings) of Fiqh.
• Tonight (when the lecture was originally delivered), is the 7th of Dhul Hijjah, it is the anniversary of the martyrdom of our 5th Imam(A), Imam Muhammad al-Baqir(A) (which occurred in 114 AH).
• Open dissemination of the knowledge of Fiqh was started by the 5th Imam(A), who is also known by the title of Baqir al-Uloom (Refiner of Knowledge)
• Our 5th and 6th Imam(A)s are known by the common collective title of as-Sadiqayn (The Two Honest Ones).
• The real benefits of the events at Karbala, and the Martyrdom of Aba Abdillah al-Husayn(A), his family and companions started appearing at the time of the 5th Imam(A), when people started enquiring openly about the true and real Islam, and it’s teachings and laws.
• The 5th and 6th Imam(A)s established the first Hawze-e-Ilmiyyeh (Islamic University / Islamic Seminary).  They also gave knowledge about the established systems of Taqleed and Khums.
• According to all Muslims (including the Wahhabiyyah), the best family lineage in the world is that of our beloved Prophet Muhammad(S) through his daughter Sayyedah Fatimah az-Zahra(A) and Imam Ali ibn Abi Talib(A).
• Our 5th Imam(A) has the unique distinction of having infallible (ma’sum) grandfathers from both his father’s side as well as his mother’s side.  His father being Imam Ali ibn al-Husayn, Zayn al-Abedeen(A), the 4th Imam(A), the son of Imam Husayn(A); and his mother being Fatimah(A), the daughter of Imam Hasan ibn Ali, al-Mujtaba(A), the 2nd Imam(A).

 Law of Ilzaam (Qanoon-e-Ilzaam)

• In order to understand the top of Ijtihad (deduction of Islamic Fiqh from the original sources) and Taqleed (following the rulings as deduced through Ijtihad by a Mujtahid), it is first necessary to understand the law of Ilzaam in Fiqh.
• The Law of Ilzaam helps in solving problems due to differences in fatawi (rulings) from different mujtahideen (jurists) on the same issue.
• The Law of Ilzaam also solves problems arising due to conflicting laws in Fiqh between the Shia School of Fiqh and the Sunni School of Fiqh on the same issue.
• These laws were first explained by our 5th Imam(A), Imam Muhammad ibn Ali al-Baqir(A).
• According to the Law of Ilzaam, if a thing/action is incorrect (batil) in Shia Fiqh, but the same thing/action is considered correct according to Sunni Fiqh, then a Shia can take benefit from it.  This is a complicated subject, and is best explained through the use of examples:
  • Example One - Divorce Laws
    There are major differences in divorce laws in Shia and Sunni Fiqh.  Shia Fiqh is very strict in divorce laws (the divorce formula must be recited in Arabic, there must be at least two (2) witnesses present, the women must be free from menstruation at the time of the divorce). 

    In Sunni Fiqh, only the recitation of the Arabic word “Talaq” (divorce) three times is enough and other conditions are not necessary.

    If a Sunni gives his wife a divorce, according to his Fiqh rulings, then (according to the law of Ilzaam), Shia Fiqh recognises the divorce as valid, and a Shia is allowed to marry such a divorced women (provided she has completed her waiting period).

  • Example Two - Inheritance Laws
    According to the Quran, when a husband dies, his wife gets 25% of his property if he had not children; or 12.5% if he had children.

    The property can be of two types:
    1/ Movable (such as clothes, house building, cash, etc); or
    2/ Immovable (land on which the house is built, farm land, etc)

    In Shia Fiqh, a wife gets a share only in movable property.  In Sunni Fiqh a wife will get a share from both movable and immovable properties. 

    If a Shia wife, gets a share from her Sunni husband’s immovable property, it is halal for her, even though it is incorrect according to her own Fiqh.

  • Example Three  - Jamaat (Congregational) Prayers
    In Shia Fiqh, the Imam-e-Jamaat (Leader of the Congregational Prayers), must be a Shia Ithna Asheri (Twelve (12) Imam Following Shia), along with other conditions such as being adil (just).

    But if a Sunni Imam-e-Jamaat is leading salaat (prayers) according to his own Sunni Fiqh, then a Shia can pray congregational prayers behind such a Sunni Imam (he should make the intention of praying in congregation, and recite the words for the prayer himself in time with the Imam-e-Jamaat).

• The same law of Ilzaam applies to differences in fatawi on Fiqh by two or more Shia Mujtahideen (Jurists/Ulema/Islamic Scholars).  Examples are the differences in the fatawi (rulings) on the sighting of the moon, and the status of the People of the Book (Ahl al-Kitaab).

These notes were taken on the Third Lecture on Fiqh by Maulana Sadiq Hasan(HA) at the Panjatan Center, Melbourne, Australia on Friday, March 2, 2001. 

It should be noted that the discussions here are based on the rulings of Ayatullah al-Udhma Sistani(HA), unless otherwise stated.  The official site for Ayatullah al-Udhma Sistani(HA) is http://www.sistani.org/.