Alhassanain(p) Network for Heritage and Islamic Thought

Jurisprudence and Its Principles

Author(s): Ayatullah Murtadha Mutahhari

Translator(s): Mohammad Salman Tawhidi

Publisher(s): Tahrike Tarsile Qur'an

www.alhassanain.org/english

Miscellaneous information:

Jurisprudence and Its Principles by Martyr Ayatullah Murtada Mutahhari Translated by Salman Tawhidi (edited by Laleh Bakhtiar) Published by: Tahrike Tarsile Qur'an, New York

ISBN 0-940368-28-5

Library of Congress Number: 83-050155

Notice:

Thisworkis published on behalf of www.alhassanain.org/english

The typing errors are n’t corrected.

Table of Contents

Translator's Introduction 6

Editor's Note 8

The Principles of Jurisprudence (usul al-fiqh) 9

Introduction 9

The Principles of Jurisprudence 10

The Sources of Jurisprudence 11

The Qur’an 11

The Sunnah 12

Consensus 13

Reason 14

A Brief History 14

The Subjects of the Principles 16

The Binding Testimony of the Qur’an's Apparent and Accepted Realities (zawahir) 17

The Apparent and Accepted Realities (zawahir) of the Sunnah 18

The Single Report (khabar al-wahid) 18

Unification and Preference 18

Issues Common to the Book and the Sunnah 19

The Discussion of Imperatives (awamir) 20

The Discussion of Negative Imperatives (naw ahi) 20

Discussion of Generalities and Particularities (aam wa khas) 20

Unconditional (mutlaq) and Conditional (muqayyad) 21

The Discussion of the Tacit (mafahim) 22

The Abstract (mujmal) and the Clear (mubayyan) 22

The Abrogator (nasekh) and the Abrogated (mansukh) 22

Consensus and Reasoning 23

Consensus 23

Acquired Consensus and Narrated Consensus 24

Reasoning 24

The 'Principles of Application' 26

Notes 30

Jurisprudence (fiqh) 31

Introduction 31

The Word Jurisprudence (fiqh) in the Qur’an and the Traditions 31

The word jurisprudence (fiqh) in the terminology of the 'ulema 31

Two Types of Law 32

Types of Obligation 32

Brief History of Jurisprudence and Jurisprudents 33

The Shi'ite Jurisprudents 34

Brief History of Jurisprudence and JurisPrudents (2) 36

Summary and Review 39

The Sections and Chapters of the Issues of Jurisprudence 40

Worship 42

Contracts ('oqud) 44

The Book of Buying and Selling (kitab ul-bay'i) 44

The Book “Rahn” 45

The Book of the Bankrupt (muflis) 45

The Book of Prohibition (hajr) 45

The Book of Liability (diman) 45

The Book of Peace (sulh) 45

The Book of Partnerships (sharikat) 45

The Book of the Partnership of Capital and Labor (mudarabah) 46

The Book of Agricultural Partnerships (mazaro'at and musaqat) 46

The Book of Trusts (wadiy'ah) 47

The Book of Lending (ariyah) 47

The Book of Hire (ijareh) 47

The Book of Representatives (wakalah) 48

The Book of Endowments and Charity (waqf and sadaqat) 48

The Book of Temporary Endowments (sukna and habs) 48

The Book of Giving (hebat) 48

The Book of Wagers (sabq and rimayah) 48

The Book of Wills (wasiyat) 48

The Book of Marriage (nikah) 49

Unilateral Instigations (iyqa'at) 49

The Book of Divorce (talaq) 49

The Book of Divorce Wholly or Partly Instigated by the Wife (khul'a and mabarat) 49

The Book of Illegal Divorce (zahar) 50

The Book of Vows of Abstention (Iyl'a) 50

The Book of Cursing (l'aan) 50

The Book of Freeing (itq) 51

The Book of Acquiring Freedom through Will, by Purchase and Through Relationship (Tadbir, mukatibeh and istilad) 51

The Book of Confessing (iqrar) 51

The Book of Reward (ja'alah) 52

The Book of Vows (ayman) 52

The Book of Taking an Oath (nathr) 52

Laws 52

The Book of Hunting and Slaughtering (sayd and thibh) 53

The Book of Eating and Drinking 53

The Book of Mis-Appropriation (ghasb) 54

The Book of Right of Preference (shaf'ih) 55

The Book of Enlivening the Dead (ihiya al'muwt) 55

The Book of Finds 55

The Book of Inheritance 55

The Book of Arbitration (qaza) 56

The Book of Testimony 56

The Book of Punishments (hudud and t'azirat) 56

The Book of Retaliation (qisas) 57

The Book of Financial Recompense (diyah) 58

Notes 58

Translator's Epilogue 59

Translator's Introduction

In the Name of God the Merciful, the Compassionate

The importance of the holy Shari'ah of Islam is crucial. By means of it, human beings know exactly how to live in harmony with his or her Creator, with the rest ofmankind, and with the rest of creation.

If we look at the proceedings of the material universe, we realize thatthe planets and forces of nature are all bound by fixed laws that ensure the material creation's symmetry .The animal world is also bound by such laws , and, even though animals are motivated only by their natural, “base”, “worldly”, “material” instincts, they too contribute to the symmetry and harmony of this planet.

The world of human beings, however, is a general exception to these observations. Reflection on the proceedings and the methods of human beings in the world shows that they are in no way in harmony with the symmetry of the universe around them. On the contrary, it shows them to be all but striving to disturb and disrupt that symmetry.

To the religiously minded, therefore, it should come as no surprise that God has provided, for those of His human creatures who desire to worship Him and serve Him, an orderly system whereby their lives can match the order and symmetry of the rest of creation, especially when it is borne in-mind that, now and in the future more than ever, the symmetry of the rest of creation depends on symmetry in the life of human beings. That is, if human beings do not quickly adopt the system wherein lies the means of their life becoming orderly, the system which Islam calls the Shari'ah, much of the order of the creation will vanish.

The Shari'ah of Islam in as much as it is a Shari'ah, or a system of legislation is not particular to Islam; rather in its earlierstages it was a part of the other divinely-founded religions. Noah, Abraham, Moses, and Jesus, upon them all be peace, were all commanded to convey to their followers the Shari'ah that had been perfected to the point suitable for their respective times and locations. The Shari'ah of Islam is particular to Islam, however, inthat it was entrusted to the Holy Prophet for him and his followers to follow, and in that it will remain unchanged and binding on God's servants until the day of judgment.

In the Qur’an, the Holy Prophet, and, tacitly,mankind, is told: “Then we placed you on a Shari'ah of the affair (religion), so follow it.” (45:18) And, whatever the circumstances in which this verse was revealed, the meaning of the word Shari'ah here is the same as is understood today, i.e. the divine legislation of Islam.

In anotherplace the Prophet is told to.tell his followers: “If you love God, follow me; God will love you.” (3:30)

From these twoverses the Muslim realizes that it is incumbent on those who desire to obey God and to be loved by God to follow the Shari'ah of Islam as introduced and practiced by the Holy Prophet and his true followers. The only problem is the determining of the Shari'ah, for the Shari'ah was not revealedfor mankind as the Qur’an was revealed, and unless the Shari'ah is properly identified it can never be properly followed.

This identifying of the Shari'ah, then, in the light of the Qur’anic command to follow it, is the purpose of the two Islamic sciences of Jurisprudence (fiqh) and the Principles of Jurisprudence (usul ul-fiqh) whichare outlined in the present translation. The aim of this work is to acquaint the reader with the Shari'ah and how itis realized .

The original book was in Persian, and intranslation it has been slightly abridged to suit a different readership. The translator owes his thanks to his wife, most of all for her encouragement, and to Syed Mohammad Rizvi for his ready and valuable assistance in editing the first part of the draft. This translationis dedicated to those who will make good use of it.

-Mohammad Salman Tawheedi

Qom, Islamic Republic of Iran

27th Rajab 1401

Editor's Note

The Arabic word fiqh, translated as jurisprudence throughout the book, in order to facilitate the reading of the text, actually means, according to the author, “precise and profound deducing of the Islamic regulations of actions from the relevant sources”. This definition should be kept in mind by the reader for jurisprudence in the Islamic perspective is based on the divine principles of the Holy Qur’an and are notman-made laws in the sense of western jurisprudence. In the same way, a jurisprudent (faqih) in Islamic terminology is a person trained in the traditional Islamic sciences, meaning that a jurisprudent, in this sense, is a master of the Qur’an and the divine commands regulating actions.

-Laleh Bakhtiar

Shawwal, 1401