Formative Period of Shi'ite Legal Theory
One of the most important works produced within western scholarship that examines the formation and historical development of the Shi'ite legal discourse is Hossein Modarressfs An Introduction to Shiri Law.
Modarressfs introduction consists of two parts; the first part discusses the general structure of the Shi'ite legal discourse and its historical development, and the second part produces a comprehensive bibliographical list of some of the major works within the field of Shi'ite law, including works relating to Shi'ite legal theory (usul al-fiqh) and works relating to Shi'ite juristic deductions (fiqh). Although Modarressi enlists Shaykh alMufid's Tadhkira bi-usul al-fiqh as the oldest extant work on Shi'ite legal theory, he claims that the inauguration of the Shi'ite legal discourse emerged as early as during the presence of the Imams.It can clearly be seen from religious traditions that Shrr Imams had persistently urged their followers to reason and use their minds. In the case of Kalam theology they praised and encouraged Shr'r theologians of their time. In the case of legal problems, the Imams stated explicitly that their own duties lay in explaining general rules and principles; whereas inferences in details and minor precepts for actual cases were left to the learned followers of the Imams... On some occasions, the Imams themselves followed what they advised as the correct method of reasoning and thus instructed their followers on the proper procedure for inference of legal precepts.48
Modarressfs study gives the impression that scholars belonging to the extremist fraction of the Shi'ite community, which commonly ascribed supernatural abilities to the Imams, generally upheld that knowledge of Sharia could only be sought directly from the Imams or via their transmitted tradition (sunna). On the other hand, scholars belonging to the more moderate fraction of the Shi'ite community, which commonly considered Imams to be pious scholars (,ulama, abrar), took keen interest in using Aristotelian analytical rationalistic methods when it came to participating in dialectic theology and further deducing, or interpreting, knowledge of Sharia from the general principles given by the Imams or via their transmitted traditions.49 Due to the scarcity of primary material, the dynamics between the Imams and what may loosely be described as 'traditionalist' extremist scholars and 'rationalist' moderate scholars is not known in detail.
A significant factor that muddles such dynamics is that early Shi'ite hadith literature contains traditions of Shi'ite Imams that are narrated by both their extremist and moderate companions. This not only depicts contradicting narratives of the attributes and qualities of the Shi'ite Imams, but also of the overall nature of the Shi'ite tradition. Having said this, it is important to note that early Shi'ite scholars who specialised in the study of biographies of hadith transmitters (or cilm al-rijal), including Muhammad b. 'Umar al-Kashshi (d. 951-2) and Ahmad b. Ali al-Najashi (d. 1058), meticulously critiqued and rejected the reliability of many traditions that were transmitted by narrators who had extremist tendencies and instead largely favoured traditions that were transmitted by moderate narrators. Using the renowned biographical works of both Kashshi and Najashi, Modarressi explains:The theologians [or rationalists] that were appreciated and favoured by the Imams, strongly resented the reproaches directed against them by the traditionalists, and the Imams consoled the accused by saying that they should tolerate and act moderately towards their adversaries since the latter's capacity for understanding subtle points and minute nuances was extremely limited. Some of the traditionalists of Qum too squabbled with the theologians, fabricated traditions in condemnation of the latter and attributed them to the authority of the Imam, and wrote books in
48 Tabataba'i, An Introduction to Skill law, 24-5.
49 1.,26-', Modarresst, CrtsesandConsoldt on,29. this vein. On the other hand, the Imams recommended their followers to refer to theologians and read their books.50
Nevertheless, postIranian revolution western scholarship has made a concerted effort in its attempt to unravel and clarify the distinction between traditionalists and rationalists in the formative period of Shi'ite legal discourse, in particular by examining the socio-political, theological and intellectual milieus in which they originated and developed.5i Western works on the formative period of Shi'ite legal discourse elucidate that during the minor, and just after the major occultation of the Twelfth Imam, the traditionalist tendency prevailed within Shi'ite academic circles.52 During this period, an overwhelming majority of Shi'ite scholars upheld that Sharia knowledge was only accessible from (or could be deduced using) the reported traditions of the Imams.
This period witnessed compilations of major Shi'ite canonical works that contained reports of the tradition (sunna) of the infallible Prophet and Imams. Notable Shite traditionalists of this period included Kulayni and Shaykh al-Saduq, who both complied extant canonical works, respectively entitled Kafifi dm al-Dln (“What is Sulffcient in the Knowledge of the Faith") and Man la Yahduruh al-faqlh (“Whoever that does not have Access to a Jurist"). Their compilations seem to have been inspired by the gth canonical works of Sunni hadith scholars as, like Sunni canonical works, both Kulayni and Shaykh al-Saduq categorise reports of the Prophet and Imams in accordance with their legal subject matter for ease of referenced Despite the prominent traditionalist tendency, Andrew Newman, in The Formative Period of Twelver Shiism, finds that during the minor occultation, the influential Banu Nawbakht family from Baghdad, who claimed that they had access to the Hidden Imam, maintained close ties with Mu'tazilite theologians and thus retained a somewhat rationalist outlook.54 This raises an interesting question (which remains unexplored) of why and how the traditionalist tendency prevailed within Shi'ite academic circles during the minor occultation, when individuals that claimed access to50 See Modarressi, “Rationalism and Traditionalism in Shi'i Jurisprudence: A Preliminary Survey" 147-8.
51 For a comprehensive list of these works, in particular a brief survey of the history of western scholarship on post-Iranian revolution Shi'ism see Newman, Twelver Shiism, 1-10.
52 See Modane, AnInlOt onto ShtiLaw, 2.7-36■, Modarresst, Celises ar^dCt^ns01W^c^tic^n, 40⅛-, Newman, TheFoimative Period of TwehShtismi, 1-26.
53 SeeSAewart., IslamicI^i^gatOrthot^ox^i, 5,0', GIeave, ScrituratImι,xv⅛Makd, Tl^eRi؛^e ofHumanisminCfassicatlamandtheChristianWest, 1⅛20.
54 Newman, The Formative Period of Twelver Shrism, 17-26' also see Ansari and Schmidtke, “The Shi'i Reception of Mutazilism (II): Twelver Shi'is".
the Hidden Imam maintained a rationalistic outlook. Although providing a response to this question requires a dedicated study in itself, it can be said that one obvious factor that may have led to the prevalence of the traditionalist tendency over the rationalist tendency were the reported traditions of the Shi'ite Imams that categorically rejected the use of rationalist methods of investigation that were commonly used by Sunni jurists in their deduction of Sharia precepts, including evidence such as analogical reasoning (qiyas) and personal juristic opinion (ray).55The traditionalist stronghold over Shi'ite academic circles lasted until the second half of the 10th century. During the last few decades of the 10th century, traditionalists were met with heavy criticism by the emergence of rationalist Juristcumheologians. The pioneers of this rationalist tendency (and the forefathers of present-day Shi'ite orthodoxy) were Shaykh al-Mufid and his student al-Shar!f al-Murtada (d. 1044). Mufid received education from a variety of illustrious scholars, including the traditionalist Shaykh al-Sadfiq and the rationalist ibn Junayd al-Iskafi (d. unknown), and thus he was well acquainted with both Shi'ite legal tendencies that existed during his time.56 Furthermore, both Mufid and Murtada received education by Sunni Mutazilite and Shafi'! teachers, and therefore were also acquainted with Sunni legal tendencies and doctrinal positions.57 The profound rationalist Mutazilite influence on Mufid and Murtada was highlighted in their formation of doctrinal positions in Shi'ite theology and jurisprudence^«
It is important to note that with regards to the formation of the Shi'ite doctrinai posit-ion., M.. A. Amir-Moezzi. in The Divine Guide in Ec^!"ly Sbifsm interestingly argues that a comprehensive review of Shi'ite hadith literature reveals that, initially, Shi'ism had an esoteric nature, in which Shi'ite Imams emphasised the pursuit of knowledge (4lm) through using reason (caql) in the sense of ''hiero-inte!ligence.''59 However, instead of interpreting caql as hiero-intelligence, Shi'ite scholars of Bfiyid Baghdad (including Mufid and Murtada) fell under the influence of Sunni Mutazilite theologians and thereby interpreted raql as “dialectical reasoning." According to him this shifted the
55 For Shi'ite refutation of qiyas (analogical reasoning) see Gleave, “Imam! Shi Refutation of Qiyas"; Moezzi, Divine Guide, 55; Modarressi, An Introduction to ShiILaw, 28-9.
56 Modarressi, An Introduction to ShLiLaw, 35-6.
57 SeeStewart., I W-IicLegaiOrthodoyy, ⅛ιo-2', Sachedina, TheJustRuier, 85,-6,.
58 For a thorough study of the reception and impact of Mu'tazilite theology with the Shi'ite tradition during the time of the Imams, across the minor occultation, and just after the major occultation see Ansari, “The Shi'! Reception of Mu'tazilism,” 181-95.
59 SeeMoezzi, TheDtvineGuide,rz-⅛
doctrinal position of Shi'ism from an “esoteric non-rational” tradition to a “theological-juridical rational” tradition.e® He points out that:
From the time of the Occultation, around the middle of the fourth/tenth century, in a time profoundly marked by theological, and especially Mu'tazilite, rationalism, Imamite theologians and traditionists appear to have seen themselves confronted by “nonrational” teachings for which they had great difficulty finding theological as well as Quranic bases of justification. No longer having a “visible” imam to lead them, living in a socially hostile and politically unforeseen milieu, and in a time that intellectually tended toward rationalism, Imamite thinkers appear to have felt forced to make a compromise between safeguarding the original doctrine and their concern for not brutally clashing with the dominant ideologies.®]
Although there may be differences on whether the early doctrines of Shi'ism were originally esoteric in nature or not, there is no doubt that during the Buyid period, the works of Mufid and Murtada presented and established Shi'ism (and its doctrines) as a theological-juridical tradition. Western scholarship generally alludes that the reason for presenting Shi'ism as a theological- juridical tradition was because formative (or Buyid) Shi'ite scholars felt that the vacuum in guidance and leadership during the major occultation could only be accomplished by creating (if not further developing) a single consistent systematic framework for deducing Sharia knowledge that was specific to the Shi'ite tradition.
62 Accordingly, it was during this period that Shi'ite jurists-cum-theologians made a concerted effort in producing literature that was specifically devoted to creating a legal theory that aligned with their theological doctrines.In Islamic Legal Orthodoxy, Devin Stewart interestingly highlights the remarkable influence orthodox Sunni jurisprudence had on the Shi'ite legal discourse. He contends that Shi'ites had to struggle for survival in front of the force of Sunni orthodoxy, and as a result, to avoid being branded as a heterodoxy, formative Shi'ites adopted similar concepts and terms that were dominant within the Sunni legal discourse. He specifically argues that one concept
60 1.,12..
661 1.,18,.
62 For instance, see Eliash, “Misconceptions regarding the Juridical Status of the Iranian
'Ulama'”; Sachedina, The Just Ruler, 57; Madelung, “Authority in Twelver Shiism in the Absence of the Imam”, 173; Calder, “Judicial Authority in ImamI SlI Jurisprudence”, 104-8; Kohlberg, “From Imamiyya to Ithna-'ashariyya”. that Shi'ites imitated from the Sunni legal discourse was that Sunnis categorised consensus (Jmac) as an independent source of Sharia knowledge, and by doing this they prescribed to themselves the status of a legitimate parallel school of jurisprudence (madhhab).63
Nevertheless, regardless of whether the development of Shi'ite legal theory was due to a vacuum in leadership felt by the absence of the Twelfth Imam, or due to the sheer force of Sunni legal orthodoxy, formative Shi'ite scholars, under the patronage of Buyid sovereigns, found tremendous success in disseminating their rationalist trend within Shi'ite academic circles. The rationalist polemic of Mufid and Murtada against orthodox Sunnis and fellow Shi'ite traditionalists was largely epistemological in nature. Their works on legal theory essentially maintained that only they (or the Shi'ite rationalist camp) had an accurate framework of deducing Sharia knowledge, as they, unlike other legal schools or trends, never relied on deducing it from evidence that generated mere conjecture (zann). As such, they typically condemned thejuristic utility of any form of evidence that required a jurist to exercise his personal fallible opinion (ray) in deducing Sharia precepts, and hence they outright rejected conjecture-generating forms of evidence that were usually utilised by orthodox Sunni jurists, including analogical reasoning (qiyas) and the discretionary opinion of a jurist (which during the Buyid era was referred to as Jtihad).[3] [4] [5] In addition, they also rejected the juristic utility of isolated reports (akhbar al-ahad) that relayed the tradition (sunna) of the Prophet (and for the Shi'ites, the infallible Imams). Although for both orthodox Sunnis and Shi'ite traditionalists isolated reports were a major source of Sharia knowledge, Mufid and Murtada rejected them by arguing that they were extremely prone to being erroneous and at times even fabricated, and therefore they too only generated mere conjecture of Sharia.65 Mufid and Murtada characteristically pioneered the non-authoritativeness of conjecture as a primary axiom, or what I term the first epistemological underpinning, of Shi'ite legal theory. According to them, Sharia could only be deduced from evidence that generated knowledge (’ilm), including the Quran, traditions of the Prophet and infallible Imams that are conveyed through widely recurrent reports ('mutawatir), unanimous consensus of Shi'ite jurists (ijmac), and reason (caql).'66 The presence of a diverse range of Muslim scholars, including Shi'ite rationalists, traditionalists, and other various groups of Muslim theologians, made Baghdad an intellectual hub for Shi'ite learning during the Shi'ite-friendly Buyid era. 67 By the early 11th century, the scholarly authority of the rationalist camp became solidified within Shi'ite intellectual circles. This was primarily due to the remarkable scholarly efforts made by Mufid and Murtad 's student Shaykh Muhammad b. Hasan al-Tusr, who is more famously known as Shaykh alTifa (d. 1067). In comparison to his teachers, Tusr in cUddafi usul al-fiqh presented Shi'ite legal theory in a clear, comprehensive, and precise manner which effectively marked an era of maturity of the Shi'ite legal discourse.68 One of his most significant contributions to legal theory was that he accepted the authoritativeness and hence the juristic utility of isolated reports in the deduction of Sharia knowledge. He did this despite accepting the first epistemological underpinning coined by his teachers Mufid and Murtada, and therefore he admitted that Sharia knowledge can only be deduced from evidence that generates knowledge (cilm) as opposed to conjecture (zann). However, by using textual and non-textual sources, Tusr argued that the juristic utility of conjecture generated from isolated reports that are transmitted by narrators who belong to the “True Sect" of Twelver Shi'ite Islam, is sanctioned by God Himself and thus such reports generate sufficient knowledge of Sharia precepts. 69 By accepting thejuristic utility of isolated reports, Tusr offered a reconciliatory position between the rationalists and traditionalists and this was perhaps one of the key factors that led the seminary of Baghdad to extensively promote the rationalist legal discourse and become the centre of Shi'ite scholarly dis- course.70 In 1056, the pro-Sunni Seljuq empire invaded Baghdad and this event forced Tusr (who by then had gained immense popularity within the Shi'ite community) to migrate to Najaf, Iraq. In Najaf, where the holy shrine of the First Shi'ite Imam is situated, Tusr established a religious seminary, which till today remains one of the major centres of Shi'ite education.7i 66 Calder, “Doubt and Prerogative,” 59. 67 See Sayyid Abbas Radawi, “Baghdad" in Haddad Adel et al. (ed.) Hawza-yi cIlmiyya: ShFl Teaching Institution (London: EWI Press, 2012), 91-7. 668 B>a⅛r Λ-Sadr, Prtncipof Islamic Jurtspiudence, 33-4. 69 See Zysow, The Economy OfCerttainty, 284-285; Calder, “Doubt and Prerogative,” 60-1: See Mul ammad Hasan al-Tisi, aicUddafiusulal-fiqh, 1:63-143. 70 Radawi, “Baghdad," 111-12. 71 I. C. Ardihayi et al., “Najaf" in Haddad Adel et al. (ed.) HawzayiTlmiyya: ShTl Teaching Institution (London: EWI Press, 2012), 113-5. Western scholarship highlights that Thsi was perhaps one of the first Shi'ite jurists to openly suggest that during the absence of the Twelfth Imam, a jurist is entrusted with taking control of all his essential clerical functions.72 It can be said that the transmission of power between the Shi'ite friendly Buyids and the pro-Sunni Seljuqs was a considerable factor that may have influenced Thsi to comment on the wider socio-political functions of a jurist. It is important to note that Aron Zysow points out a positive correlation between the acceptance of conjecture (or different forms of evidence that generate conjecture) and the level of authority a jurist or a legal school possesses. In The Economy of Certainty, he categorises formative Muslim legal schools (both Shi'ite and Sunni) as either materialist or formalist. He explains that the former represents schools that adamantly uphold that Sharia knowledge can only be deduced from evidence that generates knowledge or certainty; whereas the latter represents schools that tolerate the deduction of Sharia knowledge from evidence that generates mere conjecture or probability.73 He argues that to ensure the survival of the Shi'ite rationalist legal school, it was rather necessary for Thsi to accept the juristic utility of conjectural isolated reports, and thereby move the rationalist legal discourse from a staunch materialist position (as was expounded by Mufid and Murtada) to a somewhat formalist position.74 This is probably true, as Thsi's efficacious legal theory prevailed over the Shi'ite discourse and remained unchallenged for more than a century. Hossein Modarressi refers to other Shi'ite jurists during this period as ‘imitators' (muqallida) who reverently quoted, explained, and utilised Thsi's legal theory as opposed to further developing it.75 3