Introduction
Muhammad Baqir as-Sadr, one of whose works on Islamic jurisprudence is translated here, is among the leading modern thinkers in this field. This introduction seeks to locate his work for the intelligent lay reader by offering: a discussion of the nature of Islamic law; a discussion of the nature of Islamic jurisprudence; a discussion of the relation of this system of jurisprudence to Roman and canon law; and a very brief sketch of the life of the author.
The Nature of Islamic Law
It was by no means inevitable that law should have become so central to higher learning among most Muslims in the pre-modern period. For over a thousand years the great majority of Muslim jurists agreed that out of over six thousand verses in the Qur'an there were only five hundred verses with legal content. Most of the “legal” verses concern Hbadat, approximately “acts of devotion,” such as prayer and the pilgrimage. Out of these five hundred verses, there are about one hundred and ninety that deal with non-ritual aspects of the law; only matters of inheritance are laid out in any detail.
As to why legal culture became central to so many Muslims in subsequent centuries, I can give only a partial answer. The Qur'an, according to one very widely accepted reading, by its spirit encourages legal culture since it speaks repeatedly of the hudud, literally “the limits” or “boundaries.” In the Qur'an this word does not mean “the prescribed punishments,” as it came to mean in later Islamic law, but “the limits” which circumscribe good behavior; and in almost all instances hudud in the Qur'an is best translated as “laws.” For example, in a verse on divorce (and most mentions of “the limits” are in passages on divorce and fasting), the Qur'an reads,”... these are the laws [hudud] of God: do not transgress them. Those who transgress them are unjust (or 'oppressive').” (II: 229). Another verse on divorce says, “... these are the laws of God. One who transgresses [literally, “passes beyond them”] has done injustice [or “acts oppressively”] to him or herself...” (LXV: 2). In earlier centuries the study of Islamic law was called “the laws/limits and the knowledge [of them],” al-hudud wa-l-'ilm, or simply the “knowledge” (al-'ilm). And indeed the Qur'an connects laws and knowledge, in a verse which ends, “...and these are the laws [hudud] of God; he makes them clear [yubayyinu-ha] to a people who understand/know [ya'lamuna, from the same root as al-'ilm].” (II: 230).
The Qur'an also offers a number of statements specifying that certain things are “permitted” (haldl) or “forbidden” (haram). Therefore, given that there were some “laws” specifically laid down and some things actually classified as “permitted” or “forbidden,” and given that Muslims were in touch with three powerful legal systems, the Roman, the Jewish, and the Sassanian Persian, is it surprising that legally minded Muslims felt it necessary to go beyond the brief treatment of the law in the Qur'an to develop a fully fledged legal system?
Yet as this system developed it became clear that it was something grander than law: it aspired to classify and categorize all human acts. Later jurists summarized this ambition in a maxim that said, “In the presence of God there is a ruling or 'classification' (hukm) for every instance of human behavior.” The jurists saw it as their responsibility (and, to some extent, that of every human being) to derive, from what they believed to be potential sources of the law, the most likely classification or categorization of any human act in the eyes of God. He is “the Lord of the Day of Reckoning,” as the Qur'an repeatedly says, and it was considered essential to know how He would reckon the deeds of one's life, even when they were neither “forbidden” nor “obligatory.” After long dispute the jurists came to agree on five “predicates” appropriate for any legal proposition expressing the ruling (hukm) which evaluates a human act in moral terms. An act is either “forbidden,” “discouraged,” “permissible” (meaning free of any moral weight), “recommended,” or “mandatory.” Normally only the “forbidden” and, in some cases, the “mandatory,” could be matters for consideration in an Islamic court, and only these matters would be called “law” according to a widespread Anglo-American tradition. But it should be understood that the so-called manuals of Islamic law would be considerably slighter if they contained only matters enforceable by courts. Islamic law proper is embedded in a moral hermeneutic, or system of interpretation. It can be argued that even in the Anglo-American system we have laws such as tax laws, the object of which is to encourage or discourage certain types of behavior in areas such as personal savings and home ownership, which are of course legally optional. To give another example, “Good Samaritan” laws encourage help to the distressed in cases of emergency by reducing liability to the rescuer.
The jurists understand the middle category, “permissible” or “morally neutral,” to be central to the nature of the law. “The legal presumption concerning things is their permissibility ('ibaha),” as the famous maxim says. This word can be translated “license,” from which point of view the need for “limits” is clear. It can also be understood as “liberty,” and a person's fundamental liberty to act as she or he wishes in the world has been an important concept to many Muslim reformers. Some moral philosophers in the contemporary West consider such a presumption necessary to any system of ethics.
A kindred concept is “the presupposition of innocence,” which partly overlaps with the Anglo-American presumption of innocence. When born, every person's legal standing {dhimmd) is innocent/free of guilt (bari*). This presupposition is seen as self-evident; for the accused in a law case is innocent until evidence (bayyina) is brought to prove otherwise, and the newborn is not yet responsible for any acts whatsoever.
The Historical Development of Islamic Law
The above account of the way in which Islamic law developed is too stylized to be fully historical; it represents the attempts of later jurists to tidy up the history of a very lively intellectual debate which, like any other such formative episode, was filled with disagreement and took place under the pressure of real concerns. Fortunately, a fair amount of material on these early debates survives. (It is one of the merciful aspects of Islamic law that its extended treatments carry the history of virtually all opinions of previous jurists of any importance into later works, a display of learning that allows the author to show that he has considered discarded opinions, as well as - on rare occasions - to adopt an earlier opinion.)
It would seem both from the Qur'an and its commentaries that many of these early debates had to do with the way in which Islamic law should understand itself over and against other law or laws. Verses 42 through 50 of Surah V (al-Ma'ida) are held by most Muslim biographies of the Prophet to relate to an incident (supposed by Muslim commentators to have occurred in the fifth year of the Prophet's authority in Medina) when some of the Medinese Jews came to the Prophet asking him to arbitrate among them. In verse 44 the Prophet is told, “In truth we have revealed the Torah in which is guidance and light, by which the Prophets who submitted to God judged the Jews; and the rabbis and sages judged by such of God's Book as they were bidden to observe .” Verse 48 goes on to explain that God has revealed laws for each community, “To each of you we have given a law and a way. Had God wished it He would have made you a single [legal] community ('umma) .” (This divinely willed legal plurality was, of course, why Muslims generally tolerated religious communities founded before the coming of Islam. They always had the option of considering these communities as “pagans,” a category of persons that the Qur'an and the Prophet did not tolerate within Arabia. Until very recently religions founded after the coming of Islam were not legally recognized.)
The expansion of Muslim rule brought legal questions that had to be sorted out immediately, and the Islamic legal tradition would later consider the decisions on these legal questions to be an exercise in ijtihad, the effort to derive rulings from their proper sources. 'Umar, the second caliph (from 13 A.H./634 A.D. to 23 A.H./644 A.D.) had to choose between precedents. The Prophet had made different arrangements with different Jewish and Christian communities in Arabia. In one instance he arranged for an annual poll tax, in another, the Christian community of Najran agreed to send two thousand robes to Medina each year. How by extension from such precedents could a ruling be established for the taxation of other Christian and Jewish communities? There was also the problem of the status of the land in the large empire suddenly acquired by the Muslims during the reign of 'Umar. The jurist 'Abu Yusuf in his book on the land tax tells us that Bilal, the famous Ethiopian companion of the Prophet, told 'Umar, “Divide the lands among those who conquer them, just as the spoils of the army are divided [on the battlefield].” But 'Umar refused, saying, “God has given a share in these lands to those who shall come after you.” As in the question of taxation there were mixed precedents, and for the next century opposition to 'Ulnar's decision to give the tax revenue and tide of the conquered land to the “treasury of the Muslims” remained controversial and a cause for serious revolts.
While the first four caliphs had an enormous share in making the decisions which would become law, their successors, the dynasty of Umayyad caliphs, continued to promulgate their own rulings as binding legal decisions for matters as various as marriage, the law of sale, and blood-money. The well-known “fiscal rescript” written by 'Umar II (caliph from 99 A.H./717 A.D. to 101 A.H./720 A.D.), usually counted as the most pious of the Umayyads, shows this caliph ruling on the tax status of converts and kindred matters. Even subordinate Umayyad officials could make rulings which might find subsequent authority in the law. When an Arab general invaded the province of Sind in 93/711, he recognized Hindus as protected people like the Christians and Jews, and the majority of later Muslim jurists of the Hanaff school, the Sunni school predominant in South Asia, recognized this ruling.
Gradually the caliphs lost the power to make legal rulings. Yet they retained until the very end the theoretical authority to appoint judges and to hold their own court, the mazalim, or court to judge “contraventions of justice.” The jurisdiction of this court was very wide. Although in theory there is no appeal from the ruling of a qadi, in practice cases were appealed to the mazalim court. Moreover, it functioned as an important court of appeal from decisions in administrative law and against the misbehavior of administrators, matters with which most qadis were unwilling to deal. Yet the mazalim jurisdiction never reached out to the masses who lived under the caliph's rule; it did not, for example, develop “delegated” judges, as the qadis did in order to have sitting judges in remote towns. The mazalim remained an active but idiosyncratic expression of the ruler's desire to be seen personally as the last resort in the search for justice.
The authority of the Umayyad caliphs to make law or even in any way to govern had been challenged from the start, in significant part by the “Partisans” or Shfa, of 'Ali ibn Abi Talib the first cousin and son-in-law of the Prophet, and some of these ShiTs felt that 'All had been explicitly appointed by the Prophet as his successor. The Kharijites, in contrast, opposed both 'All and the Umayyads because they had all committed “sins” and the Kharijites would accept no sinful ruler. (The 'Ibadfs, descended from one branch of the Kharijites, and now to be found principally in Uman and North Africa, have their own school of law.) The pious opposition to the Umayyads not only shrank the caliph's authority to promulgate legal rulings, it also created a number of circles in which a more intense discussion of religious matters took place, and their members were the forerunners of the ulema, the specialists in religious learning so prominent in the later Islamic Middle East.
'Abu Hanffa (d. 150/767) was both prominent in and typical of these circles. He is accounted the founder of the Hanaff school of law named after him, although how much 'Abu Hanffa was a Hanaff is far from clear. One story - very possibly a legend - has an Umayyad governor flog him for refusing appointment as a qadi. It seems without question that he supported the political claims of the family of 'All. He died in prison in Baghdad, the capital of the 'Abbasids, the dynasty of caliphs that succeeded the Umayyads. The lifestory of this great early jurist and theologian as constructed from reliable historical accounts and legend shows a suspicion of association with government which would persist among the ulema of the Middle East. It also shows a gap between judges and jurists that would last. Some learned men did become judges, but usually the most learned jurists shunned judgeships. Nevertheless, the practical experience of the judges fed legal thinking in that the decisions of judges were sometimes challenged by the jurists and sometimes ably defended by the judges in circles that met to discuss the law. Ibn Abi Layla, the judge for Kufa in 'Abu Hanffa's time, tried - largely unsuccessfully -to establish the legal basis for his judgments against the opinion of his more able contemporary, Abu Hanffa. But the practical nature of Ibn Abi Layla's opinions is said to have given some of them lasting value as against Abu Hanffa's more theoretical approach, dictated by the latter's search for consistency.
The distance between the “pious opposition” and government also accounts for the development of the independent fatwa, or opinion, so similar to the responsa which exist in Roman and Jewish law. Conscientious Muslims went to the legally minded among the forerunners of the ulema and got opinions, including opinions on matters not ordinarily dealt with by courts. The Umayyad state, aware of this interest, appointed muftis, givers of responsa, somewhat similar to the jurisconsults in the Roman system. Although later dynasties often appointed muftis, many muftis sought to remain and succeeded in remaining largely independent because people were free to choose their authorities and because a mufti who kept his distance from the government gained prestige among ordinary Muslims. The independence of the mufti was a significant part of the formation and persistence of a semi-independent community of jurists.
In time these communities of legal thinking developed regional differences. Malik ibn 'Anas (d. 179/796), often called simply “the Imam of Medina,” was the most able member in his generation among the circles that discussed Islamic law in Medina. The Medinese tradition considered itself continuous with the tradition of the Prophet, who spent the last ten years of his life there. It was assumed, reasonably enough, that the Prophet would have disapproved of Medinese customs not consonant with Islam, and therefore what survived in “the practice of Medina” had been expressly or tacitly approved. Hence, in Medina in Malik's time, while the quantity and quality of something sold usually had to be known for the sale to be valid, the very practical Medinese custom of exchanging an inexactly known quantity of ripe dates on a tree for dried dates was allowed and became part of the tradition of the Maliki school of law (and subsequendy of other schools). Malik, by the way, was also very concerned with the classification of rulings and Prophetic sayings and not merely in Medinese traditions. In early books on law Malik's school is often called “the school of Medina,” and 'Abu Hanffa's school “the school of Kufa,” which represents the understanding that these were in fact regional schools although in the homes of all these schools there was a variety of opinion.
It was also in Medina that two of the Imams of the Twelver ShiTs, Muhammad al-Baqir (d. sometime between 114/732 and 118/736) and his son Ja'far as-Sadiq (d. 148/765), made a significant contribution to Islamic law in general as well as developing a more specifically ShiT school of law. Muhammad al-Baqir's disciples included prominent Sunnis such as al-'AwzaT and 'Abu Hanffa, both founders of law schools. Muhammad al-Baqir's legal views were written down by his circle and passed into ShiT law. Ja'far as-Sadiq held an even higher position of respect and prominence in legal discussion among Muslims in general and both he and his father are counted as reliable transmitters of hadfth among Sunnis. Ja'far as-Sadiq gave a very large number of legal rulings which served to orient the ShiT tradition.
Another source for regional difference was the pre-Islamic underlay of regional schools. The influence of this underlay is downplayed in many Muslim accounts of the development of Islamic law, but unnecessarily so. The Prophet during his “farewell” pilgrimage in 10/632 carefully went through the rituals of the pilgrimage, understood to have been established by Abraham, and made clear both in action and description what was authentic and what was unacceptable pagan accretion. This method of developing the law is called “confirmation” (taqrir) by the jurists, and it is supported by the first part of one of the verses already cited. Verse 48 of the fifth Surah of the Qur'an begins, “We have revealed to you the Book in truth [or, “with the truth”], confirming [musaddiqan] that Scripture which already exists ....” In a widely respected letter ascribed to 'Ali ibn 'Abi Talib and written as instructions to Malik al-'Ashtar, his appointee as governor of Egypt, we read, “Abolish no proper custom [sunna] which has been enacted by their [the Egyptians'] leaders, through which harmony has been strengthened and because of which the subjects have prospered. Create no new custom which might in any way prejudice the customs of the past, lest reward for them belong to him who originated them, and the burden be upon you to the extent that you have abolished them.”
Yet the desire to see Islamic law as a separate system over and against earlier systems outweighed the interest in carefully recording when “confirmation” took place after the Prophet's death. Christians, who at first had little reason to think they should develop a legal system, soon created a whole system of bishops' courts, then took and triumphantly reshaped Roman law to their own ends. A fair number of the axioms which were central to Roman law are to be found in Islamic law. Even if these maxims are present not because of borrowing but because of the common conclusions of developed law, isn't their presence a confirmation that other legal systems strove to achieve the same goals as did Islamic law? And yet, unnecessarily, the traditional narrative of Islamic law allowed little place for interest in continuities and parallels.
In any case, it is clear that Islamic law was overwhelmingly jurist-made law; and by the second half of the second/eighth century full-fledged jurists emerged. In the case of Muhammad ibn 'Idrfs ash-Shafi'i (d. 204/820), usually called al-'Imam ash-Shafi'i, we have not only a powerful jurist but also, according to later Muslim tradition, the founder of jurisprudence, the discipline of deriving law from its proper and appropriate “roots” or sources {'usul al-fiqh). It should be noted that Shafi'f, like Malik and Abu Hanffa, was at one time a partisan of the Alid cause.
In his celebrated Epistle he attempted, as an historian of the subject says, “a systematization, a codification, and, up to a point, a rationalization of understanding the Law.”
It is Shafi'f who clarifies that the subject of the law is the legally capable individual considered as someone who is subject to moral obligation (mukallaf, legal agent), and that for every act there is a ruling (hukm). He discusses the need to rank in order of priority the “roots” or foundations of the law and the need to systematize analogical reasoning (qiyas). In making the Sunna (which means, among other things, the “practice” of the Prophet) a proper source ('asl) alongside the Qur'an, he stipulated that the jurist is to accept only a properly established account {hadtth, khabar) about what the Prophet said, did, or gave tacit assent to, to the exclusion of mere local tradition, which his teacher Malik had accepted. His insistence on a strict study of analogy was a rejection of the freer forms of legal reasons such as commonweal, to which 'Abfi Hanffa had frequent recourse. In short, he sought to rein in the various schools of Islamic law, partly in a traditionalist direction, in that he set scriptural prooftext so far ahead of other sources of law, and partly in an innovative direction, with his demand that legal arguments be justified and (as in the case of analogy) be well developed.
It was too late. The substantive law (that is, the law as written down by specific jurists with the intention that it be generally adopted) was already too developed, and the existing schools too conscious of their tradition, to yield to the challenge of the new rules proposed by Shafi'f. For a century ShafiTs Epistle remained without progeny. But when jurists turned to writing jurisprudence, the sophistication of ShafiTs program was an overwhelming influence and eventually all the law schools wanted to represent themselves as fitting into some form of ShafiTs system. We will return to the development of jurisprudential writing below.
Shafi'f demanded that hadith or khabar, narratives as to what the Prophet did and said and tacitly assented to, be properly accredited. In this demand he was at the forefront of a movement for hadith criticism which resulted in the writing of “canonical” hadith books in the third/ninth century among the Sunnis (and in the fourth/tenth and fifth/eleventh centuries among the Twelver Shffs). Although it took centuries to achieve near-consensus as to which hadith collections were canonical, two achieved instant recognition among Sunnis, those of al-Bukharf (d. 256/870) and Muslim ibn al-Hajjaj (d. 261/817). Both aimed to present only such hadith as had a reliable chain of transmitters extending back to the Prophet. (Hadith rather confusingly was used for a single narrative or as a collective plural.) To be reliable, a transmitter had to be known to be of good character and likely to have met both the preceding and succeeding links in the chain. Many early scholars had presented hadith with “imperfect” chains of transmission or even without any chains. Non-Muslim scholars (and recently some Muslim scholars) have suggested that a fair body of hadith acquired its Prophetic pedigree in the century and a half before the “canonical” books appeared. In any case, even the collections of Bukharf and Muslim ibn al-Hajjaj have hadiths with incomplete chains of transmitters. By their arrangement of chapters Bukharf and Muslim show the growing concern of the jurists for reliable legal material, as both use sub-headings somewhat similar to those of the law books.
Throughout the centuries there has been a dispute about the standing of accounts that did not come down through wide-scale transmission, but from a small number - even a single - line of reliable transmitters. Some of these hadith are constandy invoked in the law books. For example, the hadith that says: “The believers must fulfill the lawful conditions in [their contracts] (al-mu'minun l inda shurutihim)” is such a “solitary” or “idiosyncratic” hadith, even though it is continually invoked in the chapters on sale in the law books. Some of the “idiosyncratic” hadiths were too important to the law to be shoved overboard. Ibn as-Salah ash-Shahrazurf (d. 643/1245) in his introduction to the hadith sciences, still considered the most authoritative book on this subject, points out that if wide-scale transmission demands transmission from a large number of the Companions of the Prophet as well as multiple transmitters in later generations, then only one hadith of the many hundreds of thousands in existence would qualify.
Hadith came to rank with the Qur'an as a source of law. The hadith was treated according to the rules developed by the Qur'an commentators for dealing with the seeming contradictions between Qur'an verses. Some verses in the Qur'an, for instance, allow the drinking of wine; but one forbids it. The commentators tried to establish when each verse was revealed. From this chronological framework one could determine that prohibition of wine-drinking came later and “abrogated” the verse permitting wine-drinking. Correspondingly, there were abrogated and abrogating hadith.
The virtually equal status of reliable hadith was a boon to the jurists, who had so little law from the Qur'an alone; but it created intellectual problems. Whereas the text of the Qur'an was fixed (except as to minor and clearly established questions such as different pronunciations of certain words), the scholars of hadith accepted as equally sound reliably transmitted hadiths with the same meaning but different wording. (Strangely, other textual criticism of the hadith was limited; it was not a subject for concern in hadith-criticism that the hadith foretell “heretical” movements such as the Murji'ites and Kharijites of the early period but do not foretell later heresies.) The standing of sound hadiths, which collectively describe the Sunna, or practice of the Prophet, was so high that some jurists held that the Sunna could abrogate the Qur'an.
In the fourth/tenth century the book market, agreement within schools of law, and the needs of students and judges called forth manuals of law, some of which have kept their standing until the present. The pressure of the book market deserves more attention among historians of Islamic law. The great polymath al-Mas'udi (d. 345/956), for example, released his rambling (but entertaining) world histories in three lengths: a very long everything-I-know version, 'Akhbar az-Zaman (lost but referred to in his other works); a work called the Kitab al-'Awsat (“Middle Book”), an abridgement of the long version, also lost; Muruj adh-Dhahab (“The Fields of Gold”), also a middle length version, which survives; and Kitab at-Tanbih wal-Ishraf, an abridgement and summary of the longer works. Books were expensive, and authors often preferred restating their subject at different lengths to revising old works. The same pattern has been followed by some jurists down to our own time.
The need of judges for a quick book to consult, of students for a smallish book to memorize (in what was a highly mnemonic culture) and the achievement of a large degree of agreement within the Malikf school account for the popularity of the short Epistle by Ibn 'Abi Zayd al-Qayrawam (d. 386/996), a book still memorized from the author's native Tunisia to Nigeria.
Qayrawanrs Epistle offers a concrete starting point to consider the way in which law changed. Discussing an important topic, the hubus or ivaqf, the charitable trust or pious endowment, Qayrawam in the Epistle speaks only of the trust set up for the family and descendants of the founder. The word refers to an institution in Tunisia, where the traditions of the Roman latifundia survived the Arab conquest and were threatened by the complicated divisions of inheritance among relatives required in the Qur'an and well elaborated by the jurists. The ivaqf, literally the “stopping” of property from circulation, has no Qur'anic basis except insofar as it fulfills the general exhortations in the Qur'an to charity. The institution of the “pious trust” founded for non-familial interests exists in Qayrawants time even if he thought an elementary book in Maliki law need not discuss it.
If we turn to a Hanafi handbook of the Ottoman period, ad-Durr al-Mukhtdr (“The Chosen Pearls”) by al-Haskafi (d. 1088 A.H./1677 A.D.), we find a discussion that has gained sophistication over the centuries. The author tells us that a waqf resembles a partnership in that the owner's property is inserted into someone else's property, i.e., God's. The author is aware that 'Abu Hanifa, the eponym of the Hanafi school, thought that any charitable trust was revocable, whereas later Hanafis disagreed. Many aspects of the making and preserving of such trusts are discussed. For example, the objects legally appropriate to be made into charitable trusts are painstakingly defined. Here the author says (contrary to the opinion of most pre-Ottoman jurists) that cash can be the object of a dedication to a charitable trust, the cash-waqf that lent money at interest being a widespread institution in the Ottoman empire. Haskafi also raises the interesting point that by the rules of analogy, it would be wrong to dedicate a Qur'an (since it cannot be the object of a financial transaction, and one cannot dedicate as a waqf an object of no market value). But, Haskafi says, the hadith tells us, “What the Muslims see as right, is right in the eyes of God.” This legal maxim was the justification for istihsdn, “favorable construction,” that is to say, a looser method of legal construction which sets aside the results of strict construction in favor of the common good. In many cases, the presence of l urf or “custom” is an occasion for the jurist to suspect that this common usage exists for the common good.
Some constant traits of the substantive law can be seen in these law books. By the fourth/tenth centuries it became customary to divide the law into “roots,” which I have called jurisprudence, and substantive law, which was called the “branches” or furu'. The phrase “substantive law” may give the mistaken impression that these law books were “codes.” They were not, except for those rare cases in which the government promulgated some area of Islamic law in an official version. Many of these last books stand between an ideal world and a real world over which the jurist has limited influence but nevertheless the jurist wishes the believer to know that there is a practical, yet divinely ordained, path to follow. These books offered legal opinions as to what the law was. They were written within the tradition of a law school and that tradition rests heavily on the writer.
By the fifth/eleventh century it was clear that a certain amount of legal pluralism was here to stay. Some law schools, such as that of 'Awza'i in Syria and Spain, would dwindle. But at least from the perspective of al-Mawardi (d. 450/1058), an extremely influential jurist in Baghdad, there were four legitimate law schools. This view would not find general acceptance until the seventh/thirteenth century when the Mamluk rulers of Egypt made the system of four schools truly and finally canonical. Ideas spread among the four Sunni schools as well as between them and the Twelver Shi'fs, and the revolution started by Shafi'i was complete in the sense that Sunni and Shi'f jurists shared a lot of the scaffolding language of jurisprudence, although this language was comparatively rare in the books on substantive law.
Books on the “differences” among great jurists, among the four law schools and between Sunnis and Twelver Shi'fs are among the first legal texts preserved for us and this genre has continued to be cultivated right up to the present day. However, after a while this genre became rather stereotyped and seldom acted as a fulcrum by the use of which to raise new discussions in the law. Each law school developed relatively stable sub-headings under which things were discussed, most often adhering to the nodes around which legal discussion in that school had developed in the first place. For example, “contract” does not appear in the handbooks as a separate subject in any of the four Sunni schools or in the Twelver Shi'f traditions, even though it is mentioned in the Qur'an. The fullest discussion of it comes in the chapters on sales.
The founding of the madrasas or colleges gave a great push to the stabilization of the law. In early times teaching took place in the mosques and by the fourth/tenth century lectureships in mosques were endowed. But in the fifth/eleventh century the institution of the endowed school was brought from the northeastern area of Iran to Baghdad and beyond at the behest of the great vizier Nizam al-Mulk (d. 485/1092) who served the Saljuqs, a dynasty whose empire encompassed almost all of Western Asia. Eventually the institution would spread to Morocco and China. Nizam al-Mulk gave rich endowments for his madrasas, enough to house and feed their students. He also dictated their curriculum: their principal task was to teach Shafi'i law. (Nizam al-Mulk himself accepted only one other school, the Hanafi, as legitimate, and considered it a very distant second.) The madrasas made sure that law was at the center of Islamic learning. Teaching other subjects such as rhetoric and mathematics, and even, in the case of the Shi'fs, philosophy, was allowed in the madrasas, but these subjects were there under the half-true excuse that they aided legal study. In fact, they were kept in a subordinate place. Law's dominance of endowed higher education was a loss for many areas of learning. But the law curricula were similar enough to give a common language to the ulema, in general allowing them to recognize across law schools who were members of their club.
It must be remembered that the ulema were not in any way consecrated and had no sacerdotal function. To maintain their prestige and authority they had to have mastery of something not easily accessible to the average literate person. While accessible elementary legal texts continued to be taught, a whole new class of textbook, including texts on jurisprudence, were written. They aimed at so much concision that they became virtually unintelligible. The student would memorize the passage assigned for the day and possibly read a commentary. In class the teacher would explain the text with examples, and might end the lesson by saying, “And therefore we say: ...” at which time he and the students would recite the dehydrated original, which had by now sprung into its full form in the minds of the students. Later in the student's education these memorized passages were like pegs on which to hang the keys of things learned in further study of the subject. This method accounts in part for the long stability of the order in which chapters were presented in law books and other genres of madrasa books.
The Nature of Islamic Jurisprudence
The history of jurisprudence is narrower and less studied than substantive law and is often more difficult to discover. In a sense the tradition of jurisprudence began in the age of the Prophet when, according to hadith, he was asked questions and sometimes explained his answers, or when, as in hadith given by Haskafi, he gave general principles of interpretation. This discussion on these topics continued to flourish after the Prophet and took a great leap forward with the work of Shan't. But would he have counted his book as jurisprudence, as later scholars did? The Epistle of al-Qayrawani begins with a little theology and jurisprudence, but is mosdy a book on substantive law. It was only in the course of fourth/tenth and fifth/eleventh centuries that jurisprudence emerged as a genre and its independent position was clarified.
Fiqh (literally “discernment”) is a human attempt at knowing the Shari'a, the divinely ordained “path” which only God knows perfectly. The word Shari'a shines more brightly and is seen more reverentially than fiqh. Nevertheless, it is essential for the fiqh to be known on the human plane as accurately as possible. A method of explaining texts gains authority as it gains internal consistency and agrees with theological ideas. Do commonweal arguments, so favored by Abu Hanffa, have as much strength as arguments from scripture or by analogy? What are the presuppositions of the law? How can the linguistic disciplines tell us when commands in the Qur'an are metaphorical? What were the qualifications for carrying out ijtihad, the independent effort at legal reasoning?
To this last question there developed a partial answer: one must be trained in jurisprudence as well as in substantive law. Just as the discipline of jurisprudence was coming into its own, the madrasas were founded and jurisprudence was adopted into the madrasa curriculum. If one wanted to be a truly first-rate jurist, he should have some training in jurisprudence. The books on substantive law reveled in discussing difficult questions and seeming contradictions in the law; jurisprudence provided a means to answer them in an ever subtler way.
Jurisprudence was the threshold between law and theology, which was often called 'usul ad-din, the “roots of religion” just as jurisprudence was “the roots of law.” It was assumed that before coming to the law a Muslim had found reasons to believe in God, the Qur'an, and the exemplary life of the Prophet. Theology, which deals with these issues, also dealt with questions such as free will and predestination, which inevitably occur in a monotheistic system. But Islamic theology also deals with some topics more prominent among Muslim than Christian thinkers. If God speaks to man direcdy in the second person in the Qur'an, what is the nature of that speech? On this issue there were many schools of thought, only two of which are discussed here. The speech included “commands,” often in the imperative, and “prohibitions.” For one school the speech of God was literally true; that is, when the Qur'an says, “The All-Merciful sat firmly upon the throne,” it meant that God literally sat on His throne. Some softened this formula by saying that one should believe without asking “how” (that is, in what sense this language is to be understood). Similarly the commands and prohibitions in both the Qur'an and sound hadith were to be literally obeyed. This approach to the text of the Qur'an existed (with some variation) among Muslims from an early period and still exists; its partisans are sometimes called 'Abl al-Hadith. Such literalist views resemble Christian fundamentalism and many (but not all) groups labeled fundamentalist in the Muslim world at present are literalist in this original sense.
An opposing stance was taken by the Mu'tazilite school. This school had almost as many branches as it had members. The branch associated with the Basran 'Abu 1-Hudhayl (d. c.22 7/840) is discussed here. He vehemently opposed anthropomorphism and saw the literal acceptance of statements such as “The All-Merciful sat firmly on His throne” as contrary to the absolute transcendence of God above His creatures. God is one; He has no form or limit. God is all-knowing and all-seeing, etc., but His knowledge is identical with Himself. A human is responsible for his/her actions. God's speech, including the Qur'an, is created by God.
The justice of God meant that certain of His laws could be found by reason alone, although the most correct form of these laws and of the way to fulfill them (such as how to worship Him), could be found only through revelation. They therefore adopted the categories “good/beautiful” (hasan) and “bad/ugly” {qabih) as determinable by the “intellect/reason” ('aql) whereas the “mandatory” (wajib) can be determined by revelation alone. This system resembles Hellenistic theories of natural law with which the Mu'tazilites were acquainted. The intellectual rigor that Mu'tazilites introduced into theological discussion commanded respect even among their opponents and influenced all the major schools of theology among Muslims. Its influence on the Karaite “heresy” in Judaism is also well-known.
The major school rejecting Mu'tazilism was founded by al-Ash'ari (d. 324/935), who was a former Mu'tazilite, and who, for all his great achievement and undoubted originality, uses many of the techniques of argumentation used by the Mu'tazilites. 'Ash'arism formed a more coherent school than Mu'tazilism but its followers were by no means in complete agreement. Of course 'Ash'ari accepted that God is just, but God's omnipotence can not be contained; if He is just, it is because He chooses to be just; and we have no business asking whether His commands are just. Ash'arism offered a “strong” theory in that it did not appear to compromise the omnipotence of God in any way. (At times Ash'arism seems close to certain versions of Protestant theology.) It makes Islamic law “positive” law in the sense that God alone, freed of all constraints, posits it. But to strip goodness and continuity of all rational justification had some problems of which the 'Ash'arites were aware. The perception of the “customary” behavior of things - the 'Ash'arite formula used to replace natural law in both the physical and moral world - required reason, both inductive and deductive. To carry out analogies - a practice fully accepted by 'Ash'aris - required reasoning. Moreover, there had been a broad consensus since the third/ninth century that the “right” was “good,” a view that the 'Ash'aris generally accepted. It was explained by them in ingenious - but to this author not wholly successful - ways.
Eventually Sunnis rejected the theories of the Mu'tazilites, while the Twelver and Zaydi Shi'is accepted a large part of them, often in the version developed by 'Abu al-Hudhayl. Accompanying this parting of ways was a parting of ways in the role given to reason/intellect. For Sunnis there are rational presuppositions such as the use of reason in interpretation of the sources of the law. There is also analogy, one of the four major sources of Sunni law, since analogy requires reasoning in its application (although many Sunnis believe the validity of analogy comes only from its validation by the words of Prophetic hadith).
Shi'is, on the contrary, embrace reason/intellect as one of their four major sources. They reject analogy, however, on the grounds that it sometimes yields too many possibilities. Is smoking prohibited by analogy with the prohibition of wine? It depends on a guess as to what is the explanatory principle for the prohibition of wine: its ability to make someone drunk, or because of some other psychotropic effect. Hence a disagreement on the permissibility of smoking. (One long dead Sunni school said that only what was explicitly forbidden was forbidden; God had forbidden wine, not beer, and we have no business guessing His motives.)
The Shi'i acceptance of Mu'tazilism was signaled by their adoption of a Mu'tazilite slogan, “Everything that reason ordains, divine law ordains” (and, it is understood to be implied, vice-versa).
As Muhammad Baqir as-Sadr said in another work, this program was never actually carried out by a Shi'i jurist.
But the theoretical and, in some cases, the actual importance of intellect and natural law is everywhere present in Shi'i jurisprudence. Shi'is, for example, enthusiastically adopted Aristotelian logic and used the syllogism instead of analogy (although later Sunni jurists came to approve some figures of the syllogism). Muhammad Baqir as-Sadr in the book translated here, without distorting Shi'i law, tries to emphasize its (genuine) scriptural basis, pardy to counter the Sunni critique of Shi'ism as too inclined to appeal to reason. It is striking that the theory of obligation which logically should stand at the opening of the book actually stands two-thirds of the way through it in the discussion of procedural principles.
Shi'ism went through a conservative phase, in which a group of Shi'i jurists called 'Akhbaris insisted on the primacy of the accounts {'akhbdr) of infallible persons. They held that everyone with a good knowledge of Arabic, the Qur'an, and these accounts, the points of consensus among the Shi'is, and the proper use of the rational argument (dalil 'aqli ) could find the ruling appropriate to any case. Note that Shi'i law even in this conservative phase did not completely reject intellect.
In the thirteenth/nineteenth century the 'Usuli school in Shi'i law roundly won the high ground for the claims of intellect (and also for the special position of the jurists). 'Akhbaris survive only in a few remote outposts. The decisive blows in this battle were dealt by the saintly Murtada al-'Ansari (d. 1281/1864), who vastly extended the use of the procedural principles discussed by Sadr toward the end of the book. The placement of consideration of these principles at the end of his text is no measure of their use in the past century and a half, in which they have dominated many legal discussions. All of these procedural principles are based on intellect and Shi'i jurisprudence reflects this change, although Sadr leaves most of his discussion of them for the second volume, not translated here. One of Sadr's most original works is entitled “The logical bases of induction” and is an attempt (deemed important but not wholly successful) to give a larger role to inductive reasoning in Islamic higher learning.
Jurisprudence was a threshold which led not only from theology to law but from law to theology. Modern Shi'i law with its interest in principles with a rational basis has encouraged the traffic between the two areas.
One aspect of Shi'i jurisprudence has been badly misrepresented in some Western books, which say that Shi'ism rejects the principle of consensus. It is true that Sunni consensus includes all Muslims or all Sunni jurists whereas Shi'i consensus is achieved between either all Muslims or all Shi'i jurists. But both traditions are concerned with fidelity to the actual general practice of Muslims, presumed, as in the Prophet's confirmation of the pilgrimage, to be preserved in its correct form because of the continuing concern of generation after generation of Muslims. Ritual law in particular is a great river of shared experience that runs down the history of the Muslims. Moreover, within the law schools there was concern to preserve the integrity of the school tradition. In this sense, although Islamic law did not formally accept the idea of precedent, the law books in practice heavily favored precedent.
How well did jurisprudence account for the substantive law? Jurisprudence made a brave attempt, but when jurisprudence came along, too much substantive law already existed for any theory to account for all of it. In fact, there was a very minor genre of works in which the specialist in jurisprudence attempted to prove the harmony between the “roots” and “branches,” but such attempts were curiosities, not fully successful.
Nevertheless, once it was established, jurisprudence disciplined the jurists, and therefore exercised a centripetal influence. I have described the way in which Shafi'i wanted to bring both the Kufan and Medinese school under a common standard, and this impulse remained an important part of jurisprudence. It also, as discussed above, corresponded with the formation of the ulema as a self-conscious group, who would have destroyed their own authority if centrifugal forces had been allowed to operate.
It is a curiosity that jurisprudence did not take on two related topics, the “moral ends” of the law {maqasid) and the “norms” (qawd'id) of the law. Hanafi jurisprudence sometimes discussed a category literally called “cause” (sabab) which, if developed, might have constituted a deeper level of rational explanation than did the search for the connecting link of an analogy. A small genre on the moral ends of the law existed but was seldom integrated into jurisprudence. Although the “norms,” often given in the forms of maxims, seem very central to the way jurists think, and are occasionally cited in the books on jurisprudence, before the nineteenth century, they were never, it would seem, central to the construction of any jurisprudential theory. They too were treated in a separate genre. There seem to have been two streams of ethical thinking, one tradition not primarily focused on the law, and another tradition that is a pietistic exposition of the law, often much simplified. Only in a few works such as the 'Ibya' of al-Ghazzali (d. 505/1111) do the traditions of law and ethics meet.
In Sadr's book the argument for man's obligation to God is that a servant has an obligation to a master. This argument is traditional in Shi'i jurisprudence and represents the thinking of a hierarchical society. In fact, pre-modern Islamic law represents the pre-modern society of Muslims in the Middle East in that it recognizes three different absolute distinctions of status: between male and female, between Muslim and non-Muslim, and between slave and free. This last distinction was discarded as no longer meaningful by Muslim jurists; and the other two distinctions are no longer acceptable. Perhaps Muhammad Baqir as-Sadr would have written these out of contemporary Islamic law, had he not been savagely killed in his native Iraq on April 8th, 1980 on the order of Saddam Hussein, who subsequently killed scores of Shi'i jurists to keep his Shi'i subjects cowed.
Reason and Convention
Earlier in this introduction, I referred to Sadr's interest in reason as a source and method in jurisprudence, but in fact we see a mixture of adherence to inherited conventions with a more rationalist approach. In fact, some such mixture is probably present in most legal systems. The adherence to conventionalism is, however, formally much stronger in a system which wishes to refer to scripture on every possible occasion. When Sadr tells us that we are looking for “shared or common elements” as the basis for legal reasoning, he is essentially appealing to the authority of the conventions of Islamic jurisprudence, which does not of course exclude the possibility that these conventions might be justified by reason. Sometimes, as in his acceptance of the single-source account, he in fact gives only a scriptural justification, since he believes that this source of law is too uncertain to be trusted on a rational basis alone. Since Sadr considers the guidance given by reason to be more authoritative than that of a weakly attested hadith, the reader may well ask what the methods of reasoning used are. After all, as we have mentioned above, Sadr wrote a book trying to establish the importance - some would say, the primacy - of induction in Shi'i and, more generally, Islamic legal reasoning. Nevertheless, the relations between all modes of reasoning in determining a rational conclusion have never, to my knowledge, been fully elaborated in Shi'i jurisprudence.
It can be said in defense of conventionalism that the law reflects the long experience of the society in which it exists. This argument applies more fully to areas such as commercial law than to criminal law, which has been very indifferently enforced in Muslim societies. Moreover, the appeal to the conventions established by great jurists in the past has the virtue of allowing only a limited pluralism when the lack of a formal clerical structure would seem to encourage Islamic law to fly in a thousand directions. In the immediate case of modern Twelver Shi'is, the obligation for each believer to follow a living authority, a mujtahid, has created a formal structure of religious authority perhaps unparalled in other Muslim communities. The proliferation of Internet fatwas by unqualified jurists stands in strong contrast to this Shi'i system.
There is another type of conventionalism emphasized by later Shi'i law which is close to the concept of ius gentium in Roman law. Sadr, like many of these jurists, speaks of common usage ('urfi and the conduct of reasonable people (sira 'uqala'iyya). These two phrases frequently appear together in Shi'i works on jurisprudence and substantive law. Common usage and the conduct of reasonable people are subject to change. They are therefore not natural law, which exists for the Shi'is because of their belief in God's justice. They are nevertheless some indication as to what natural law might be, and a guide to the way in which laws should be implemented in practice.
A humane aspect of almost all Islamic law is that it takes into consideration the subjective state of the legal agent when assessing accountability. This consideration includes questions of both capacity and intention. Shi'i law of the last two centuries has been especially careful in its discussions of assurance in the mind of the legal agent, inspired by, among other things, Avicenna's distinction between conceptualization and assent. The increased interest in the subjective state of the legal agent is apparent from many passages in this book, and results from two and a half centuries of such discussion in 'Usuli legal circles.
Medieval Western Law and Islamic Law
Earlier I referred to the bishops' courts that existed even before the conversion of the Roman emperors to Christianity. In the fifth Christian century, the Roman emperor Theodosius II sought to define a closed body of authoritative jurists, just as Islamic law did retrospectively with its “authoritative” books of hadith. Similarly, the code prepared under Justinian a century later was subsequently regarded as having a privileged standing as the fullest authoritative statement of Roman law.
The New Testament, notwithstanding the harsh words of Jesus against lawyers and the antinomian tone of some passages in the letters of St. Paul, sometimes praises the law, as when Jesus says, “I tell you the truth, until heaven and earth disappear, not the smallest letter nor the least stroke of the pen will by any means disappear from the Law, until everything is accomplished.” (Matthew 5: 18, NIV) It is overwhelmingly likely that Matthew understood Jesus to be speaking of the Jewish law; but as Christianity spread, a more general interpretation became possible. The church grew in an atmosphere pervaded by Roman law, which became more deeply associated with Christianity after the Roman emperor converted in the early fourth century. Yet the west [as contrasted with Byzantium] had to wait until the revival of Roman law in the twelfth century for the church to see the full possibilities that mastery of this sophisticated body of knowledge offered. The greatest figure of this revival, Gratian, who wrote in the first half of the twelfth century, said that the church is both a spiritual and an earthly society. The twelfth century witnessed Western Europe's greatest experiment in religious law. By the thirteenth century, church courts were accepting a great variety of non-ecclesiastical cases. Theologians and canonists were trying to find a firm intellectual connection between the expanding jurisdiction of church-administered Roman law and basic Christian principles.
At some point in the thirteenth century, however, the canonists and the theologians began to part ways. Professor Charles Donahue of the Harvard Law School suggests some contributing reasons for their divergence. First, keeping up with developments in canon law as well as mastering Roman law was a full time occupation, as was the study of theology. Second, as the Church's legal system had to share jurisdiction with secular law, its lawyers had to be able to talk to secular lawyers. The inevitable result was some secularization of canon law. Third, the greatest canonist of the thirteenth century, Henricus de Segusio, and the greatest canonist of the early fourteenth century, the layman Johannes Andreae, seem to have taken no interest in the new scholastic theology and, like other canonists of the period, adhered to the theology of the twelfth century.
Islamic law may have provided for the theoretical possibility of an adoption of pre-Islamic revealed law that would have paralleled the reception of Roman law in Latin Christendom, but in practice Muslim jurists rarely appealed to any previous system. Moreover, the canon lawyers never denied the existence of a secular realm, although they advocated increased Papal oversight of that realm. The de facto separation of the authority of sultans from that of the caliph was accepted only as a lesser evil than confrontation and disorder within the Islamic world. Only very rarely was this distinction in the real world defended as an ideal.
Among the Shi'is the situation was different. They were seldom in power, and since they had to wait for their messianic leader, they could accept sultans with less theoretical difficulty, demanding primarily that they do justice. Furthermore, their belief in divine justice required them to consider the relation between theology and law a permanendy open question. At some periods, their discussion of this relationship was repetitive and unoriginal, at others, innovative. One such innovation is the modern interest in the theoretical basis for extended reliance on common usage and the conduct of reasonable people. And like Aquinas, the 'Usulis could not think of law without scholastic philosophy, whereas many Sunni jurists became great specialists in Islamic law without taking any interest in theology or philosophy or even jurisprudence.
The pre-modern tradition of Islamic learning created a monumental body of scholarship as impressive as that of Europe and India and China. It was successful in creating a sophisticated legal system, which in certain areas, such as commercial law, can be and have been, with some adaptation, successfully applied in the contemporary world. Islamic jurisprudence shared the subtlety of the law it described and remains an intellectual achievement which can be studied with benefit.
The Life of Sadr
The Life of Sadr
In 193 5 Muhammad Baqir as-Sadr was born into a family long distinguished in ShiT learning and closely associated with Kazimayn or Kazimiyya, a suburb of Baghdad dominated by the very large and ornate shrine in which two imams of the Twelver ShiTs, Musa al-Kazim (d. 183/799) and his grandson Muhammad al-Jawad (d. 220/835), are buried. Some report that Sadr was allowed to leave home to study at the famous ShiT seminary in Najaf as early as his fourteenth year because he was such an unmistakable prodigy. His sister, Amfna Sadr (usually called Bint al-Huda) shared some of her brother's talents and was successful both as a novelist and a public speaker. By 1963 Baqir as-Sadr had begun to teach in Najaf. The leading ShiT religious authority at that time in Iraq - and, indeed, in all of the Arab-speaking world - Muhsin al-Hakfm, was antagonistic to the ShiT tradition of philosophy. Nevertheless, given Sadr's brilliance and reliability, Hakim authorized him to study philosophy with a certain Shaikh Sadra, which would stand him in good stead in his jurisprudence as well as his more purely philosophical work.
It is sometimes forgotten that Iraq was the one Arab country where the local Communist Party once had a real chance of coming to power. Sadr and the leading ShiT clerics of the time were not only opposed to Communism because of its atheism but also because it had found a fair number of ShiT followers. Then as later, the politics of Iraq were dominated by an elite drawn from the Arab Sunni minority and therefore ShiTs, including relatives of the most important mullahs, were attracted to the egalitarian promise that Communism seemed to offer. Already in the nineteen-fifties one of the leading thinkers among the Iranian clergy, Muhammad Hisayn Tabataba'i, had written an attack on materialistic philosophies, in particular, Communism, and the very able and prolific Iranian Ayatollah Mortaza Motahharf had both popularized and extended this attack. Sadr drew on these sources as well as his extensive reading of pro- and anti-Communist literature in Arabic, and on his growing knowledge of Western philosophy as available in Arabic translation, in order to write a series of books that would have enormous readership in the Arab world: Our Economy, Our Philosophy, The Interest-Free Bank, and The Logical Bases of Induction, as well as a host of shorter works. All of these books showed his interest in conducting a rigorous discussion in the scholastic style of classical Islamic philosophy as well as in writing a clear and accessible Arabic unlike so many of his predecessors among the Shi^f clergy. He was limited by the materials available to him and lamented to friends that certain key works had not been translated into Arabic. Whatever future generations may think of them, these works remain a significant part of the history of Arab and Islamic thought in the twentieth century.
Even as Sadr labored to combat Communism and to shape a more modern ShiT philosophy, he and some like-minded mullahs sought to reform ShiT education, both within seminaries and beyond them, much as Motahharf had sought to do earlier in Iran. In the sixties, a committee was established to publish textbooks at all levels and there was an attempt to give the seminary at Najaf more structure. Although a new madrasa was founded, attempts to change education in Najaf by and large failed. It has always been a highly individualistic center of learning and less under the control of its leading jurist than Qom, its rival in Iran. A separate attempt to establish a comprehensive university with a ShiT orientation at Kufa was quashed by the government. Some of the publications of the period, however, such as Sadr's al-Mdalim al-Jadidah (completed 1965), his first attempt to write an accessible introduction for beginning students of jurisprudence in Najaf, continue to be relevant. Incidentally, the senior clerical figure within the establishment who served as an inspiration for Sadr and many lesser jurists was Shaykh Muhammad Rida al-Muzaffar, whose advanced two-volume work on jurisprudence is still considered standard.
In the background of the political life of Iraqi Shi*is from the time of the Iraqi revolution of 1958 was the clandestine political party called the Da'wa. Sadr certainly knew about the party from the beginning and some claim he was the founder and its moving spirit. The secularist governments in Baghdad were also aware of the party's existence and, while denying it any legality, used its members in the balancing act with which the regime would alternately set the Communists, the Baathists, the religious ShiTs and other factions against each other. The Da'wa wished to create an “Islamic” Iraq although the concrete content of “Islamicness” was differendy understood by different members of the party. It had some Sunni members. But the ShiT Arabs, some sixty percent of the population, although divided into several parties, saw the Da'wa as the most direct claimant for the right of religious ShiTs to organize politically. Ayatollah Muhsin al-Hakim, the most authoritative clergyman in Najaf, was very much against political activism and rumor has it that in 1961 he ordered Sadr to sever his ties with the Da'wa. For most of the sixties the ShiT clergy and the government dealt with each other at arm's length. There was an understanding that except in extraordinary circumstances no clergyman protected by al-Hakim would be arrested.
When Ayatollah Hakim died in 1970 the great majority of Iraqi Shi*!” clerics recognized the distinguished jurist Abu 1-Qasim al-KhuY, as his successor. Sadr was in the forefront of those recognizing Khu^i who had been his teacher, and whose views on jurisprudence continued to influence him. Nevertheless, at about the same time Sadr issued a manual of guidance for the lay ShiT believer that more or less put forward the claim that Sadr had the standing to succeed Khu'f. This claim was widely accepted. KhiTi wished to avoid confrontation and in general Sadr followed his lead, although after the return of the Baathists to power in July 1968 the government began to arrest clergymen and Sadr sometimes spoke out on their behalf.
In 1977 the relations between the ShiT clergy and the government broke down. The Baathists, determined to show who was in control, banned the annual procession from Najaf to Karbala that commemorates the martyrdom of Husayn, which is for ShiTs the most deeply tragic event in their history. Nevertheless, some tens of thousands of Shifts followed the procession. When the marchers arrived in Karbala, the Iraqi security forces imprisoned several hundred of them. The Baathist regime, still split after many years, could not agree how to manage the incident. The faction dominated by Saddam Hussein gained control and decided that any kind of ShiT challenge must have been masterminded by Sadr. He was arrested, but the Baathist government was not yet willing to deal with the level of anger that this arrest caused among the ShiTs and he was released.
The Iranian revolution in 1978 sharply increased the tension created in the preceding year. The details of Sadr's relations with the Da'wa party still remain something of a mystery, but there is no question that the party was vasdy emboldened by events in Iran and looked to Sadr for leadership. Everything seemed possible when the Shah, America's “policeman of the Gulf and the “heir of two and a half millennia of kingship,” simply packed and left. Some say that Sadr tried to restrain the Da'wa, assuring them that eventually their time would come. Nevertheless, Sadr had become more politically active himself. Some claim that he told his classes that a good ShiT could not belong to the Baath party. Demonstrations held openly in the name of the Da'wa party occurred in ShiT towns. The government arrested Sadr along with hundreds of others. Riots broke out and Sadr was released, only to be put under house arrest. His interrogator in August 1979 allegedly offered to release him if he made any one of several proposed major public concessions to the government. Sadr at this point seems to have chosen martyrdom and refused any cooperation with the government. Attacks on the government by the Da'wa increased. On April 5, 1980 the government arrested him and his sister, who had given impassioned sermons in protest at his earlier arrest. They were executed on April 8th. In the following September Iraq began its eight year war against Iran, as Saddam Hussein had decided that political ShiTsm was his greatest enemy and had by now killed many clergymen and hundreds of followers of the Da'wa party. The million casualties incurred in the Iran-Iraq war were, given the size of the two countries involved, comparable to casualties in Europe in the First and Second World Wars. Iranians continue to believe that Iraq was given a green light to start the war (as well as being bolstered during the war) by the United States, which then shared the Baathist view that Sadr was Iraq's Khomeini.
Sadr's intellectual activities in the seventies are still disputed. Later historians have tried to make Sadr and Khomeini part of the same story, but in fact they had somewhat different orientations. Muhsin al-Hakim was the leader of Iraqi Shf'fs when Khomeini settled in Najaf. KhuTs circle regarded Khomeini as too political and too reckless in the expression of his political views. Sadr certainly shared Khomeini's desire for “Islamic government”, but it is overwhelmingly likely that Sadr followed his teacher Khu'f in disapproving of Khomeini's theory of the “guardianship of the jurist.” Clergymen in Najaf remember Sadr and Khomeini as having cordial, but not particularly close, relations. All changed with the approach of the Iranian revolution. Sadr wrote in favor of the “guardianship of the jurist” and told his followers that they should “melt” into Khomeini's movement.
Yet during the seventies, in the midst of this turmoil and change, he wrote his Lessons in Islamic Jurisprudence, which shows him to be -in his field of greatest competence - not a follower but very much his own man. The first volume, translated here, is meant for students of approximately eighteen years of age; it has become part of the curriculum of several madrasas, and itself the subject of commentaries. It is followed by two more volumes, and I very much regret that I have not found the time to translate the second volume of the series, which clarifies many issues left hanging in the first.
Had Sadr lived, he would have continued to revise his views as he did throughout his life. I do not believe he would have sought political union with Iran, despite the religious sympathies the two nations shared. Sadr was thoroughly Iraqi and Arab. He understood Persian well but never tried to speak it. Sadr so admired the zeal and style of the Egyptian Sunni writer Sayyid Qutb that he had Muhsin al-Hakim sen( j a telegram to President Nasser on the occasion of Qutb's death. Sadr's cousin used to demand that no classes be taught in Persian in Najaf even though so many of the students came from Iran. When, with American encouragement, the Iraqi ShiTs rose against the government in 1991, it was portraits of Sadr that were displayed everywhere. At the present the fate of Iraq is uncertain, but there is no way it can be resolved without accepting the strong self-consciousness of the Iraqi Shff community that Sadr did so much to shape.
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Author: Ayatullah Muhammad Baqir as-Sadr
