If we study the subjects of FIQH in detail, we find that every one of them is peculiar and singular in itself. There may seem to be some similarity at , first glance, but a deeper study reveals a different aspect contained. It meets with the requirements of all walks of human life.
Some of the laws relate to the natural urge in human beings to adore and worship. It guides us to worship none but Allah, in the prescribed form, seeking His pleasure. Then there are laws which prompt us to serve, be helpful and useful to human society, at the same time affirming our obedience to Allah. These are Zakat, Khums, our social and political duties, Jihad, Amr bil Ma’roof and Nahy anil Munkar, training in martial arts etc.
Other laws enunciate man’s duties towards oneself like refraining from suicide or harming oneself or even avoiding celibacy. Certain laws deal with human life in relation to nature surrounding him like food, drinks, hunting, slaughtering, dresses, use of utensils and so on. Then there are laws of judiciary, requital and compensation. As for personal life, Fiqh guides us in matters of NIKAH, TALAQ, DHIHAR, and LIAN. In matters of economy and earning one’s bread, there are rules governing business, partnership, silent partnerships, bankruptcy etc. Fiqh also deals with such versatile acts like Haj which apart from being an act of worship, is an opportunity of unity, collaboration and an international conference.
In spite of this diversity, FIQH has one single aim. To lead human beings to happiness on earth, conjoining it with salvation in the hereafter. Therefore, FIQH is considered as one, composite science of ISLAM and is taught as such in the Hawzas. The basis of FIQH is the Holy Quran, the sound Traditions, Consensus and Reason. A FAQEEH looks at the diverse component of FIQH as parts interwoven into one fabric, with a single aim to guide mankind in respect of its duties and responsibilities towards Allah.
This system commonly known as ILMULFIQH, is extensive, covering a very wide range; and its history dates back to the earliest Islamic era. It has been taught with great detail and ramifications in every era, producing several jurisconsults of repute during every century. Among the jurists, known as FAQIH (pl. Fuqaha) some were genius. A number of volumes have appeared to elucidate the Islamic jurisprudence, some of them are masterly treatment of the laws on every walk of human life.
Most of the problems confronting human society are dealt with by various laws, like, the civil laws, he family laws, the penal code, the management laws, and so on. Fiqh deals with all of them under various chapters, and in different names. Moreover, it deals with such laws which are not covered by the modern day laws, like the ones related to the acts of worship. Because of a very wide range of subjects covered by Fiqh, it actually includes numerous faculties which are normally learnt separately today.
The term ‘FIQH’ in the Quran & Hadith
The word ‘FIQH’ and its derivation ‘TAFAQQUH’ has been extensively used in the Quran and Hadith, and in almost all cases it denotes indepth study and profound understanding. The Quran says:
“If a group of people from every tribe stayed behind to study (and ponder on) the religion, (they would be able) to warn and admonish their people when they return to them so that they are cautious.” (AlTawbah. V.122)
And the Prophet (s.a.w) is reported to have said:
“Whoever commits forty Hadith for the sake of my Ummah shall be resurrected by Allah as a learned FAQIH.”
It is not known whether the term FAQIH was applied to the learned companions of the Prophet (s.a.w). However, we certainly know that the generation which followed the companions, known as TABE’EEN, used this appellation for a number of scholars among them. There were for example, seven great jurists among them who are known as ‘FUQAHA SAB’AH’ i.e. the seven fuqaha. The year 94 A.H. was known as ‘SANATUL FUQAHA’ (the year of the Fuqaha) because in that year, together with our fourth Imam, Ali b. Hussain (A.S.), great jurists like Saeed b. Musayyab, Urwah b. Zubair, Saeed b. Jubayr and others died. Thereafter, great Islamic scholars, particularly the jurists were commonly classified as Fuqaha.
Our Imams (peace be upon them) have used the term Faqih quite often. Some of their companions were recommended to study religion thoroughly and become Faqih, and when they attained that degree of knowledge, they were called FUQAHA. We know of quite a few students of our Imams (A.S.) who were known as Shiah Fuqaha by their contemporaries.
The term FAQIH as elucidated by Islamic Scholars.
In the Quran and Hadith, Fiqh denotes profound understanding and knowledge of Islamic fundamentals and laws, and is not confined to any particular branch of religious sciences. But with the passage of time, the word become synonymous with the knowledge of Islamic laws and jurisprudence.
The Ulema have divided Islamic teachings into three groups:
Principles of Faith
These are the fundamentals which are related to one’s faith, like the belief of God, the resurrection and the Day of Judgement, the Prophethood, the divine revelation, the Angels, the Imamat.
Moral behaviour and ethics
These are aimed at improving human behaviour) and cultivating spiritual aspects of our existence. They deal with TAQWA, Justice, Generosity, Bravery, Patience, Submission to the Will of Allah, and so on.
These deal with the rules and regulations laid down for certain acts, and also provide guidelines for the way these acts be performed.
The Fuqaha of Islam have restricted the use of the word FIQH to the third category, perhaps because it has been a matter of popular concern, and that the believer sought such guidance more often. This is why men of proficiency in this branch of Islamic knowledge only came to be known as ‘FUQAHA’.
Hukme TAKLIFI & Hukme WADH’EE
It is important that we are acquainted with some of the terminologies used by FUQAHA in relation to Islamic laws. The divine laws are divided by them in two groups: TAKLIFI and WADH’EE.
TAKLIFI laws are WAJIB, HARAM, MUSTAHAB, MAKROOH and MUBAH. These are five aspects of Islamic laws which a Muslim has to keep in mind while discharging his obligations.
In Islam, every human act will fall in one of these five categories. There are acts which are WAJIB, which must be performed as an obligation, like the daily prayers, as opposed to those which are HARAM and forbidden, like speaking lies, being unjust, intoxication, and so on. Then there are acts which are optional. They are recommended acts which are rewarded, but if not performed, no sin is committed. The example is optional prayers (NAFILAH) which either precede or follow the daily prayers. On the other hand, there are certain unworthy acts, i.e. MAKROOH, which a Muslim is advised to avoid, but no sin is committed if he engages in them, like talking about worldly affairs in the Mosque which is supposed to be a place of worship. Besides, there are acts which are MUBAH, meaning permissible acts, doing or not doing of them does not entail any reward or punishment.
Thus, we see that Taklifi laws are based on ‘do’s’ and ‘don’ts’, enjoining, forbidding, or generally permitting a Muslim.
WADH’EE laws are an amalgam of temporal and divine laws, partly governed by natural or moral duties, like matrimony, proprietorship, contracts and so on.
TA’ABBUDI and TAWASSULI
The obligatory (WAJIB) acts are of two types: TA’ABBUDI and TAWASSULI.
Those Wajib acts which must be performed with a vivid and clear intention (NIYYAT) of earning the pleasure and proximity of Allah (QURBAT) are TA’ABBUDI. Such a niyyat is a prerequisite, in absence of which the act would be considered invalid. The examples are all acts of worships, like the daily prayers, fasting etc.
But there are other obligations which do not necessarily require the intention of QURBAT for their validity, like obedience to the parents, fulfilling promises and pledges, honouring the contracts, performing incumbent social responsibilities and so on.
AYNI & KIFAI
WAJIB acts have been further classified as AYNI and KIFAI:
WajibeAyni are those obligatory acts with which every individual Muslim is charged, like the daily prayers and fasting during the month of Ramadhan. But WajibeKifai remains a collective obligation on the general Muslim populace, until it is performed by one or few among them, thus relieving the rest of the obligation.
Like the social obligations of qualifying as a doctor, becoming a soldier, a judge, a farmer or a businessman, and in this form of obligation is included the rituals of GhusleMayyit, kafan and burial etc.
TA’YINI & TAKHYIRI
This is yet another classification of WAJIB acts. WajibeTa’yini relates to those particular acts which have been specifically identified as obligatory, like the daily prayers, fasting, Haj, Khums, Zakat, Amir bil Maroof, Jehad etc. But WajibeTakhyiri offers choice and alternatives, like in the case of kaffara for a person who has deliberately left out a fast in the month of Ramadhan. He will either free a slave, or feed sixty deserving poor, or keep sixty fasts.
NAFSI & MUQADDAMI
In this classification, NAFSI Wajib acts are those which are obligatory by themselves, and are not a prelude to another obligation. For example, it is Wajib to rescue a person who is on the verge of being burnt, drowned or harmed to death.
Muqaddami obligation, besides being Wajib itself, is actually a mean to performing another Wajib act. For example, it is Wajib to rescue a person who has fallen into a well, but preparing for the rescue by way of procuring a rope or any other implement is a Muqaddami Wajib. Similarly, Haj is a NAFSI Wajib, but attending to its prerequisites like getting a passport, buying the tickets, and other necessary preparations will be termed Muqaddami. In the case of the daily prayers, for example, Wudhu and Ghusl at the time of the prayers would be called Muqaddami.
To understand any system thoroughly, it is imperative to get acquainted with its scholars, particularly those who have made significant contribution to its development. And in the course of that study, one comes across their important works which over a period have become the sources of reference.
Ilmul Fiqh was meticulously recorded to form a valuable literature during the last eleven centuries, which still exists, and has been constantly studied in the Islamic seminaries. Eminent scholars were able to train numerous students who in turn trained their students in this branch of Islamic knowledge. This tutorpupil chain has remained unbroken till today.
No doubt, other sciences like Philosophy, Logic, Mathematics and Medicine are much older and volumes written on those topics date much earlier. Yet they cannot be compared to FIQH which has been a growing science with a continuous line of tutorpupil relationship. Of course, we make this assertion keeping the Islamic colleges in view. It has been a fortunate practice of Muslim scholars that they always identified great scholars according to the generation to which they belonged. This was first done in respect of Ulama of Hadith, to be followed later for the Ulama of other branches of Islamic learnings. Special books were written to categorise the generations, like TABAQATUL FUQAHA by Abu Ishaq Shirazi, TABAQATUL ATIBBA by Ibn Abi Usayaba, TABAQATUL NNAHWIYYIN and TABAQATUL SSUFIYYA by Abu Abd alrahman Silmi.
However, as far as the generation of FUQAHA is concerned, the works which exist are those written by Sunni scholars. We do not know of any Shia work on the subject, with the result that we have to rely on various biographical sketches and other books of IJAZAT wherein tutors have certified the abilities of their pupils and allowed them to transmit the Traditions further to their students.
In the following paragraphs, we wish to acquaint ourselves with some of the most outstanding FUQAHA of Shia sect, together with their notable contributions. In so doing, we hope to identify them in accordance with the generations to which each belonged.
For two obvious reasons, we have to begin the history of Shia FUQAHA from the era of GHAYBATeSUGHRA, i.e. minor occultation. (260 AH 329 AH). First, the era preceding GHAYBAT-eSUGHRA is an era during which the holy Imams were present, and although there were many men of knowledge and accomplishments who were trained by the Imams themselves, people always tried their best to refer to the Imams rather then to the Ulama. Even the Ulama travelled far and wide to reach the Imams, so as to solve the problems they faced. Thus, in the era when Imams were present and accessible, other scholars were eclipsed. Secondly, the literature we have at our disposal on FIQH commences from the era of GHAYBATe-SUGHRA. We cannot trace, or rather are unable to trace, any literature compiled on the subject in the earlier era.
However, many great FUQAHA lived in the period of our holy Imams, and they are well known for their distinction and excellence when compared to their contemporaries from other schools of thought. Ibn alNadeem in his famous ALFIHRIST has a complete chapter on the FUQAHA of Shia, and mentions their works on FIQH or Hadith with deep reverence. For example, for Husain b. Saeed Ahwazi, he says: ” In his time, he had the widest knowledge of FIQH, Islamic Traditions and Ethics”. Similarly, he eulogises Ali b. Ibrahim Qummi by saying: “He is among the great scholars and FUQAHA”. Again, when mentioning Muhammad b. Hasan b. Ahmed b. alWaleed Qummi, he says: “To his credit is the great and comprehensive work on FIQH”.
It must be known that the works on FIQH to which reference has been made above were of a different nature. They were principally compilation of those Hadith which they believed to be sound and authentic and according to which they acted. So, they can safely be categorised as the books of Hadith bearing a stamp of the writers’ considered opinions.
Muhaqqiq Hilli, the maternal uncle and teacher of Allama Hilli writes:
“In view of the fact that we have a great number of FUQAHA who have copiously written on the subject, it is not possible for me to quote all of them. I have selected from those who were best known for their research and scholarship, quoting their Ijtehad, and the opinions they adopted for action. From amongst the earlier ones, I have selected Hasan b. Mahboob, Ahmed b. Abi Nasr Bezanti, Husain b. Saeed Ahwazi, Fadhl b. Shadhan Nisaburi, Yunus b. Abd alRahman. They lived during the presence of our Imams. From the later group, I quote Muhammad b. Babawayh Qummi (popularly known as Shaikh Sadooq) and Muhammad b. Yaqoob Kulaini.
As for the people of Fatwa, I consider the verdicts of Askafi, Ibn Abi Aqeel, Shaikh Mufeed, Seyyid Murtadha Alamul Huda and Shaikh Tusi.”
Evidently, Muhaqqiq Hilli, despite his high regard for the earlier Ulama and for their independent opinions, excludes them from those who he calls “the people of Fatwa”. This is because the earlier Ulama wrote books in the form of collections of Hadith, indirectly indicating their opinions and verdicts by the selection of those Traditions which they considered sound. Their works never came out in the form of clear and direct fatwa.
We have briefly introduced 40 great lives from the world of FIQH, starting with the era of GhaybateSughra till the onset of fifteenth century Hijra. These were the prominent jurisconsults of Shia sect whose names and works have guaranteed the life and growth of Islamic Shariah. However, it must be mentioned that there were many others whose contributions cannot be underestimated, and some o them have been referred to in this brief treatment. Following important points emerge from the above:
a) Fiqh has had a continuous growth right from the third century Hijra, and it has been taught and developed incessantly in the great Shia seminaries. If we were to take the example of Ayatullah Seyyid Abul Qasim ElKhoee, we can connect him upwards with his masters one generation after another, forming a glorious chain which links with the era of our Imams (AS). This continuity is unique in Islam and what is more noteworthy is that the continuity made Islamic guidance available to the Ummah at all times and in varying circumstances .
The reason for starting from the third century Hijra is not because no FUQAHA existed before that time. It is because the era earlier than GhaybateSughra was the era of our Imams (AS) and in their presence FUQAHA obviously were eclipsed. However, we know their namev and we also possess a list of their works on fiqh. For example, the earliest work on record is the book on Fiqh written by Ali b. Rafe’ who lived during the time of Imam Ali b. Abu Talib (AS). Ali b. Rafe’s brother Abdullah was Imam Ali’s (AS) scribe as well as official in charge of Treasury.
b) It is not true to say that fiqh and other Shia teachings were promulgated by the Iranians alone. Till tenth century Hijra, the contribution mainly sprang from nonIranian sources. Later, during the Safavid rule in Iran, Iranian scholars became major contributors.
c) Iran has not always been the centre of FIQH. In fact, the earliest organised Shia Centre of FIQH is traced in Baghdad, followed by Najaf during the days of Shaikh Tusi. Later, it was matched by Jabal Amel (Lebanon), Hilla (Iraq) and Aleppo (Syria). Isfehan (Iran) became known as a centre of FIQH during the Safvid regime, but at the same time Muqaddes Ardabili revived the Hawza of Najaf.
As far as Qum is concerned, it had a progressive Hawza during the bloom of Baghdad, centred around personalities like Ibn Babawayh, Ibn Qawlawayh and others. Then there was a period of decline, till its regeneration during the Qajar dynasty, under the supervision of Mirza Abul Qasim Qummi, the author of monumental ‘QAWANIN’. With the growth of Hawza in Najaf, Qum again withered away till the third revival took place under Shaikh Abdulkarim alHaeri in 1340 AH. Today, as we pen these lines, Qum is the greatest seminary of FIQH and other Islamic branches of knowledge. With the onslaught of BA’THIST infidelity in Iraq, the Hawza of Najaf has disintegrated. Hopefully, this is one of the temporary phenomena which make their appearance in history. Allah knows best, and upon Him we rely.
No doubt, the growth of smaller Hawzas in Iran had been noticeable, and they were quite prolific. Mention should be made of FIQH being taught at its highest level in MASHHAD, HAMDAN, SHIRAZ, YAZD, KASHAN, TABREEZ, ZANJAN, QAZWAIN, and KHWANSAR. But these never grew up to reach the magnitude of Hawza in Qum.
d) It must be acknowledged that the impact of FUQAHA of JABAL AMEL, like Muhaqqiq Karaki and Shaikh Bahai, has been great and decisive. The Safavids themselves, as it is known, were more inclined towards TASAWWUF and mysticism. Had it not been for these FUQAHA who decided to migrate and live in Iran, establishing the great college of Isfehan, Iran would not have been what it is today in as far as promulgation and development of FIQH is concerned.
e) As Shakeeb Arsalan has mentioned, Shia School in Jabal Amel is centuries older than the one in Iran. Some historians have indicated that the school of Ahlul Bait (AS) in Jabal Amel was established by Abu Dhar Ghifari, the noble companion of our Prophet (s.a.w). Abu Dhar lived in Sham which in those days included all or parts of Lebanon, condemning the wealth being unscrupulously amassed by Mua’wiyah and his lackeys, at the same time preaching the Shia faith.
THE CHAPTERS AND TITLES IN FIQH
As mentioned earlier, the range of topics covered by Fiqh is very wide. It is therefore necessary to briefly acquaint oneself with the chapters and headings of these subjects. The only subjects which are outside the pale of Fiqh are the fundamentals and the Islamic ethics.
It must be noted that the classification of the subjects under Fiqh was first organised by Muhaqqiq Hilli in his famous work ‘SHARAE’, and later, ‘SHAHEEDEAWWAL’, glossed over it. He divided the topics into four parts: IBADAAT, (acts of worship), UQOOD (contracts), IQAA’AT(pronouncements) AHKAM (the laws).
IBADAAT All those acts which ought to be performed as prescribed in Sharia, and must be preceded by the NIYYAH of QURBAT are known as IBADAAT. e.g. daily prayers, fasting, Haj etc.
AHKAM Those duties which are to be discharged according to Sharia, but do not necessarily require any NIYYAH of QURBAT nor do they require any pronouncement of specific formula while performing them are called AHKAM. For example, the laws of inheritance, the penal code, the laws of compensation and blood money etc.
UQOOD Those contracts of Sharia which do not require the NIYYAH of QURBAT, but are to be declared with the pronouncement of a formula in which one party declares the intention and another responds by acceptance, are called AQD (pl. UQOOD) for example, Marriage (Nikah), Ijarah (letting or leasing), Bay’ ( buying and selling) etc.
IQA’AAT Those pronouncements which do not require participation of two parties. In other words, a person pronounces it unilaterally, and the act is considered valid in Sharia. For example, remission of debt (releasing a debtor from his liabilities), divorce, and releasing a slave etc.
Muhaqqiq Hilli has discussed all the four categories under forty eight Chapters. In Ibadaat, he has ten chapters, in Uqood fifteen, in Iqa’aat eleven and in Ahkam twelve. Later, these numbers have had some alterations which we shall notice in the course of our discussion.
In the early era, that is, the first and the second century Hijra, the FUQAHA chose one or two topics of FIQH and wrote about them. They did not venture to write a comprehensive work covering the whole range. As we study their lives, we find that they have authored books on SALAT, IJARAH, NIKAH and so on. Instead of stating that they have dealt with a particular chapter in FIQH, they named each separate treatise as KITAB. Thus, we come across ‘KITBUN NIKAH’, ‘KITABU TTAHARAH’ and so on.
Let us now examine how Muhaqqiq Hilli divided IBADAAT in ten chapters.
First Chapter KITABU T TAHARAH
Taharat means cleaning from the impurities, which are of two types: KHABATH and HADATH.
Those impurities which have been specified as inherently NAJIS like urine, excrement, blood, semen etc. are called KHABATH. When our bodies or clothes come into contact with them, they have to be made clean. Then there are certain acts of Taharat which are ritual and are a prerequisite to the acts of worship like Namaz and Tawaf. These are WUDHU, GHUSL or TAYAMMUM. They are invalidated by natural causes like sleeping, urinating or entering into a state of JANABAT, and they have be reinstated.
Second Chapter KITABUS SALAAT
In this chapter, various prayers like the daily Namaz, Namaz of Idd, NamazeMayyit, NamazeTawaf, Nafila etc are outlined. Then the laws which explain the prerequisites of SALAAT, and the acts which invalidate the prayers are elaborated. Details are given about Namaz in one’s own home town, Namaz of a traveller, Namaz prayed alone, and the one in congregation (JAMAAH), Namaz prayed on time, and those as QADHA.
Third Chapter KITABUZ ZAKAH
In this chapter, various types of wealth tax are discussed, especially the one whicll is applied to Gold, Silver, Wheat, Barley, Dates, Grapes, Cattle (big and small) and Camels. Details of percentage levied, and the ways of spending Zakat are also explained.
Fourth Chapter KITABUL KHUMS
Khums means onefifth (20 and is also a type of wealth tax. According to SUNNI FIQH, this is applicable to the spoils of war only. But in our FIQH, the spoils of war are just one of the many other incomes and accruals on whicl1 ICHUMS is to be paid. For example, the minerals, the treasures, the wealth which is mixed with HARAM in a manner that it cannot be extricated, and its rightful owner cannot be traced, the wealth acquired by diving, and the net savings and profit in businesses etc.
Fifth Chapter KITABUS SAWM
This chapter deals with the laws governing fasting, and distinguishes obligatory fasts of the month of Ramadhan from other categories. For example, the forbidden fasts on IDD days, the MAKROOH fast on ASHURA day, and so on.
Sixth Chapter KITABUL I’TEKAF
Literally, it means to retire into a place. In FIQH, it is a form of worship. When a person wishes to do I’TEKAF, he has to retire into a mosque for three days or more, and fast for three days. He remains secluded, not stepping out of the mosque. This act is optional in itself, but if one commences it and continues for two days, then it is WAJIB to complete the third day. Originally I’TEKAF was to be observed in MASJIDUL HARAM (i.e. Makkah), MASJIDUL NNABI (i.e. Madinah), MASJID of KUFA. But it is also allowed in the central mosques of any town or city, excluding small mosques. The Prophet (s.a.w.) always observed I’TEKAF in the last ten days of holy RAMADHAN.
Seventh Chapter KITABUL HAJ
This deals with all the obligatory and optional acts, during pilgrimage to Makkah, like wearing IHRAM, TAWAF, NAMAZ OF TAWAF, WUQOOF at ARAFAH, MASHAR, MINA etc.
Eighth Chapter KITABUL UMRAH
It is a smaller or lesser Haj, and it is obligatory for the Hajis who must perform it first before proceeding to complete the Haj. It consists of Ihram, Tawaf, Namaz of Tawaf, Saee’, Taqseer.
The acts of Umrah are performed in the following order:
Two Rakaats of Tawaf
Saee (between SAFA and MARWAH)
In Haj, the order is as follows:
b) Wuqoof at ARAFAH
c) Wuqoof at MASHAR
d) RAMI of the last JAMARAH at MINA
e) Sacrifice of animal
f) To shave off the hair, or cutting nails etc.
g) Tawaf of Haj
h) Two Rakaats for Tawaf
i) Saee’ for Haj
k) Two Rakaats for TawafunNisa
l) Staying at night in MINA m) Rami of all JAMARATS in MINA
Ninth Chapter KITABUL JIHAD
This chapter deals with the holy wars which is deemed absolutely necessary for the preservation of security and welfare of a society. Jihad can be of two types: One initiated and another defensive. Shia FIQH stipulates that in order to initiate a Jihad, consent must be had from the Prophet (s.a.w) or any Masoom Imam. As for the defensive holy war, it can be waged as and when it becomes necessary. This chapter also deals with the laws pertaining to DHIMMIS who seek refuge under an Islamic state, and about truce and peace treaties between Islamic and nonIslamic countries.
Tenth Chapter AMR BIL MA’ROOF and NAHY ANIL MUNKAR
In an Islamic society, it is the responsibility of every Muslim to enjoin good and forbid evil. Of course, there are conditions and regulations for carrying out this duty. This chapter deals with them extensively.
Muhaqqiq Hilli has divided this into fifteen chapters.
Chapter One KITABU TTIJARAH
It deals with purchase and sale, conditions of transactions, types of transactions like cash or credit sales, profits, usury, and so on. It also explains rules of contracts, pronounced or by conduct.
Chapter Two KITABALRAHN
Deals with buying or selling a mortgage.
Chapter Three KITAB ALMUFLIS
Muflis means a bankrupt, who cannot pay off his debts. The Islamic jury would immediately issue an order to restrain such a person from using his wealth till such time when a thorough assessment has been made, and possible payments to the creditors have been arranged.
Chapter Four KITAB ALHIJR
It is an interdiction where an owner of wealth or property is restrained from having any say in its use, like in the cases of a bankrupt, a minor, an insane person, a dying person who intends to will beyond his right of onethird, a fool etc.
Chapter Five KITAB ALDHAMAN
It means a warranty or guarantee. In Shia FIQH, a guarantor becomes responsible for the debts, to the exclusion of the debtor, but the guarantor can call for reimbursement from the debtor. Muhaqqiq Hilli has included all sureties and promissory notes in this category.
Chapter Six KITAB ALSULH
Sulh here does not mean peace agreement or truce. It actually means settlement, concession or compromise. For example, to settle a debt whose exact figure is not known by offering a certain sum, and so on.
Chapter Seven KITAB ALSHARIKAH
It means joint ownership, like in the case of inheritance. As long as it has not been divided, it belongs jointly to all the heirs. It also means partnership. Interestingly, there are cases of unwilling partners, when wheat owned by one person gets mixed up with wheat belonging to another, and separating is impossible. Partnership in businesses, industries and agriculture are contracted by an agreement.
Chapter Eight KITAB ALMUDHARIBAH
It is a partnership between capital and labour. When a man or a group of men investing their capital for a business, enter into an agreement with those who will put in their labour or will manage, they must first agree about the share of dividends, and then either pronounce a formula for MUDHARIBA, or make some practical gestures.
Chapter Nine KITAB ALMUZARI’AH OR MUSAQAT
This is a type of MUDHARIBA, but with a difference. Instead of an arrangement between a businessman, an industrialist and a worker, it is an agreement between a landowner and a person who will work to till the land and carry out plantation, with a clear understanding about profit sharing when the harvest is ready. MUSAQAT is an arrangement between the farmer or garden owner, and the worker who undertakes to water the garden etc. and do all such work which would help the harvest or fruition. Again, it is absolutely necessary that a prior agreement on the proportion of profit to be shared by each is reached. In MUDHARIBAH, MUZARIAH and MUSAQAT, the profit, little or more, is proportionately shared, but the losses are borne by the capitalist alone.
Chapter Ten KITAB ALWADEE’AH
This is just like AMANAT, where a person deposits his property in trust with another person, making him responsible for its protection and security. This chapter deals with the responsibilities of the trustee, particularly in the circumstances of loss or damage.
Chapter Eleven KITAB ALARIYAH
To borrow something from a person, with an intention of benefiting from it. The difference between this and WADEEAH is that in WADEEAH a person is given something to hold in trust, with no permission to use it in any way; while in ARIYAH, a person agrees to lend his property to another person with a clear understanding that the latter will use it to derive some benefit. Simple example are lending a car to someone for his use, lending clothes for wearing etc.
Chapter Twelve KITAB ALIJARAH
To hire, or give on rent. This is done in two ways. Either one gives away his property to another for use against an agreed sum of rent, or one undertakes to complete a certain peace of work against payment. This arrangement has one common feature with ordinary purchase and sale in both the cases, something is given in return. The difference is that in any business or sale, a commodity is exchanged with money or its value, while in IJARAH, the property itself is not exchanged, but its utilisation or benefit is hired or rented out.
Chapter Thirteen KITAB ALWAKALAH
To appoint someone authorising him to enter into a contract on one’s behalf or to make a certain commitment. The example is when a WAKIL is appointed for Nikah, Ijarah, Selling, Divorce, etc.
Chapter Fourteen KITAB ALWUQOOF & SADAQAT
This deals with endowments and charities. WAQF means to exclude ones own property from ownership and give it away for a particular use. In other words, it is an endowment settled for public use. Many laws govern this act, and FUQAHA debate over whether WAQF requires an intention of QURBAT or not. Then there are laws about WAQF KHAS (family endowments) and WAQF AAM.
Chapter Fifteen KITAB ALSUKNA WAL HABS
It is another type of endowment but with a difference. While WAQF is permanent, where the owner gives away his property forever, SUKNA is a temporary arrangement. In it, a person gives away his abode or house to a deserving person for a fixed period of time. When the time expires, the property is restored to him, as its rightful owner. HABS means a temporary bequest for charitable purposes. In this arrangement, the property itself is not given away; only its accruals or benefits are bequeathed for a certain period, upon expiration of which the benefits revert to the owner.
Chapter Sixteen KITAB ALHIBAT
Deals with the gifts. One can only settle a thing which he rightfully owns as a gift. They are of two types: a gift given in exchange or a gift given away without any return. Gifts given in exchange or substitute cannot be claimed back, but that which is given away without any exchange can be claimed back. But if this unconditional gift has been settled on ones own relatives, or if its original form has been changed or destroyed, then it cannot be reclaimed.
Chapter Seventeen KITAB ALSUBQ WA ALRAMAYAH
Deals with racing and shooting, a chapter which falls under subsidiary laws of JIHAD. Islam forbids wagering, betting or staking, but allows training for racing or shooting or marksmanship as a prelude to military skills.
Chapter Eighteen KITAB ALWASIYYAH
This relates to making of the Will, testament etc. in respect of one’s estate and minor heirs. Man has a right to appoint an executor or administrator for the purpose. He can direct the appointee to look after his minor children, educate them and provide them with necessary training. Similarly, he can direct him to use upto 1/3 of his estate in the manner he, the testator, prefers.
Such directives are of three types: One is related to distribution of his money and property, another can be about performing certain duties, like Haj, Ziyarat, Qadha Namaz, Fasts, etc. The last one concerns releasing from the bondage, like when he directs that a particular slave be set free upon his death.
Chapter Nineteen KITAB ANNIKAH
Marriage Contract. In this chapter, Fuqaha discuss several aspects, including the conditions, the types of woman or man one can marry, prohibition in marriage, temporary marriages, permanent marriages, maintenance of the wife and the children and so on.
Though Muhaqqiq Hilli had enumerated 15 chapters, we observe that there are more. Possibly, Muhaqqiq amalgamated certain chapters under one heading.
Muhaqqiq divided these into eleven Chapters. In IQ’AA pronouncing a formula is necessary, but it does not have two sides. It is done unilaterally.
Chapter One KITAB ALTALAQ
Dissolution of marriage It is either Absolute (Bain) or Revocable (Raje’e). The revocable Talaq is that in which the husband has the power of revocation during the IDDAT period, while in the absolute, the husband has no power of revocation. This chapter discusses all the laws in this connection. It also sets down all the conditions for Talaq to be valid.
Chapter Two KITAB ALKHULA’ & MUBARAAT
These are two other types of absolute divorce. Khula’ is when wife has a dislike for her husband and asks him to divorce her in exchange of a sum, or all or part of her MAHR. In such a case, when the husband agrees to divorce, he forfeits the power of revocation, except when the wife agrees to take back the money or ransom she gave.
Mubaraat is when dislike is mutual, and in this case also the wife has to pay some ransom to the husband. However, the ransom paid in the case of Mubaraat should not exceed the Mahr. This divorce is also absolute.
Chapter Three KITAB ALDHIHAR
In the preIslamic era, when husband said to his wife “you are on me like the back of my mother”, it was construed as Divorce. Islam has effected an important change. It does not recognise DHIHAR as a form of divorce, but whoever does this ought to pay KAFFARA before he can resume conjugal relations with his wife. This kaffara is freeing a slave, and if that is not possible, he svill fast for two consecutive months. And if that is not possible also, then he should feed sixty poor.
Chapter Four KITAB ALEELA’
It is an oath by God, wherein the husband swears that he would never have conjugal relation with his wife, or that he would not have the relation for a period exceeding four months. In such a case, when the wife complains to Hakime Shara’, the husband would be given a choice either to divorce her or to abrogate the oath. Naturally, if the husband abrogates the oath, he will pay the expiation (kaffara). In general, Islam forbids abrogating the oaths, but in this case it recommends.
This chapter deals with the slander or denial of a child. The law of accusing someone without adequate proof etc. are also discussed. Husband stands before Hakime Sharia and pronounces LIAN, saying four times: “God is my witness, that I am truthful in my accusation against my wife”. Then he says: “May God curse me if I were not speaking the truth”. Thereafter, the wife says four times: “God be my witness that my husband has lied and accused me wrongly”. Then she adds: “Curse of God befall me if I was lying”. When this process is complete, the marriage is irrevocably dissolved.
It discusses about freeing the slaves. Islam does not encourage slavery, that is why we do not find a chapter on ‘alRiqq’, (enslaving); the only chapter is ‘allTQ’ (freeing, liberating). The chapter outlines circumstances in which the slaves are voluntarily or automatically liberated.
KITAB ALTADBEER, MUKATIBAH & ISTEELAD
This chapter deals with specific circumstances whicl1 lead to freeing the slaves. AlTADBEER is when the master makes a will stating that his slave will be free upon his death. MUKATIBAH is when a slave wishes to enter into an agreement witl1 his master that he be freed in exchange of some consideration. The Holy Quran says that if the master finds the slave capable and righteous, he should accede to the wishes of the slave, and also endow him with some of his own wealth. ISTEELAD is an automatic process. When a female slave, for example, becomes pregnant by her master, such a female slave will revert to her offspring upon her husband’s (master’s) death. And since she is the mother, and Islam does not allow anyone to be a slave of his or her forebearers however high, and descendants however low, the female slave will automatically be free.
It deals with admission and is connected with the judiciary. When a person makes a claim against someone and has no evidence or witness to substantiate it, the claim is not admissible. But if the debtor himself wishes to admit the debt, which is IQRAR, then it is deemed adequate.
It means offering a wage or reward. Apparently, it resembles the act of hiring a worker or a labourer for a particular piece of work against agreed amount. But in JIALAH, the employer does not hire a particular person, he makes a public announcement stating that whoever would do a certain job for him, he would pay him a certain amount.
AYMAN is plural of YAMEEN, which means an oath. In this chapter, the sanctity of a religious oath, taken in the name of Allah, is discussed. It describes the implication of taking an oath in the name of Allah, the types of oath, perjury and the expiation for one who breaks the oath.
NADHR is a solemn vow, or pledge made in the name of Allah. It explains the formula which one has to pronounce or at least to have it in mind before NADHR is formally established, and the occasions for NADHR. A Nadhr made for a MUBAH (ordinarily permissible) thing, having no legitimate benefit here or hereafter, is not valid. Both oath and NADHR are a covenant made witl1 Allah and they must be honoured.
Muhaqqiq Hilli has given the above name to this category, since the topics which fall under it are neither acts of worship nor contracts or unilateral pronouncements. He has divided this into 12 chapters.
KITAB ALSAYD AND ALDHABAHA
This chapter deals with hunting and slaughtering of those animals whose meat we are allowed to eat. SAYD is hunting, DHABH is slaughtering. An animal who has not been hunted as prescribed in Sharia, or has not been slaughtered as guided by Islam, will be ‘MAYTAH’, a corpse which is NAJIS, and HARAM to eat. This chapter also deals with the hunting of wild animals by trained hunting dogs.
KITAB ALAT’IMAH AND ALASHRIBAH
This chapter deals with those things which we are allowed to eat or drink, and those which are forbidden. A detailed treatment is given to animal food, sea food, nonanimal food and so on. It also explains and categorises those animals which are Halal and those which are not. And even in the Halal animals, it tells us of those parts of the body which are HARAM to consume. It also gives rational treatment to those acts which may be ordinarily permissible and harmless, but are harmful for a particular person in a given circumstance.
It means an illegal possession of property, or usurpation. As is known, GHASB is Haram, but it must also be known that it involves a liability. That means if a person usurps someone’s property and if that property is damaged or destroyed while still in his illegal possession, he is liable for it, even if he did not directly damage or destroy it, but was instrumental in causing the damage or destruction.
Means the right of preemption. When a partner wishes to sell his share, the remaining partner has a right of preemption for acquiring the share by buying it at the price offered by others.
KITAB IHYA ALMAWAT
Mawat refers to the barren, uncultivated land. A land which has been developed, either by building upon it or by cultivation is called “AMIR” in FIQH. The Prophet (s.a.w) said: “Whoever gives life to a barren, uncultivated land, that land belongs to him”. This has numerous ramifications, explained under the chapter.
This refers to things which are picked up by chance, and the owner is unknown. This can apply to animals and nonanimals. If a stray animal is found which is not in anyway endangered, then one should not take it into custody. But if it faces any danger, then it can be possessed with the intention to return it to its owner if found. If the owner is not found, then Hakime Shara’ has to authorise its use. This chapter also deals with nonliving objects, found in the sacred precincts of Haram or outside, basing the guidelines on the value of the object.
It is an elaborate chapter dealing with the laws of inheritance. Heirs are divided in three categories:
(1) Parents, children, grandchildren (when the children are not present) .
(2) Grandparents, brothers and sisters (and in their absence, their children).
(3) Uncles, aunts (both paternal and maternal) and their children.
The above heirs are by NASAB (i.e. consanguinity). There are heirs who inherit by SABAB (i.e. affinity) like husband and wife. This chapter deals with various cases of succession in great detail. The testator does not have the right to will for more that onethird of his or her estate, nor does he or she have any right to fix up the shares of his or her heirs. The estate devolves on the heirs according to Shariah.
It is a chapter on judiciary, with elaborate sets of laws. There are laws governing the appointment of judges, their rights, their emoluments, and also about disqualifications. In FIQH, it is stipulated that a Judge must be an acknowledged Mujtahid.
About the witnesses, who constitute the evidence to substantiate a claim. The onus of providing the evidence does not rest on the defendent. The chapter also explains how, in certain cases, the defendent may be called upon to take an oath.
KITAB ALHUDOOD & TA’ZEERAT
Deals with punishment and retribution. These are of two types: HUDOOD and TAZEERAT. HUDOOD are fixed punitive measures prescribed for specified offences, like sodomy, false accusation of fornication, drinking alcohol etc., stealing, belligerency and so on. TAZEERAT are such retributive measures which may vary according to the decision reached by the judge who may aggravate or mitigate the sentence.
It is a chapter on requitals. An elaborate discussion is carried out about the crimes committed advertantly or inadvertantly, and in each case the extent of requital is prescribed. Then there are laws of recompensing for those who are murdered or are inadvertantly killed.
It is a form of requital, but unlike QISAS, it is only monetary compensation. Interestingly enough, a doctor’s responsibility towards human life, and a disciplinary action by a tutor have a place under this chapter. A doctor must be qualified enough to treat a patient. If he is not and if the patient dies during the treatment, he is liable for compensation. In any case, a qualified and efficient doctor must absolve himself of the liability beforehand.
Similarly, a tutor carrying out corporal punishment must be careful not to cripple or kill the pupil. If he does, he is liable for compensation. These are dealt with in some detail.