Twelver usul

Twelver Shi'i legal developments before the composition of works of legal theory (and even be­fore becoming “Twelver” following the Major Occultation of the Twelfth Imam) exhibits an am­bivalence towards theoretical thinking.

They say: there is only what our intellects acquire and our minds come to know... [but] if God was approved with their ijtihad and their opinion forming (irtiya^,) in what they claim on this matter, then God would not have sent messengers to them to distinguish what was amongst them, and rebuke their characterisation here. We can straightforwardly deduce that God approved of not this but something else by the fact that he sent messengers with valid, valuable commands, and with a warning to guard against invalid, problematic commands.

Of course, the precise referent of the terms ijtihad, qiyas and ra¹y in such reports is a point of debate in the later tradition. Given that ijtihad becomes such a central feature of later Twelver Shi'i legal theory, the negative references to ijtihad by the Imams was a challenge. This was over­come by asserting that the sort of ijtihad condemned by the Imams was actually ra^,y and qiyas; it was not the technical procedure of exerting effort to discover an opinion about a legal ruling that is so carefully explored in the writings of al-Muhaqqiq al-Hilli, al-'Allama al-Hilli and subsequent jurists (on which, see below). The explanation is designed to prevent a rupture in the tradition between the statements of the Imams and the intellectual production of the later jurists.^[66] As we shall see, it was only partially successful: the discontinuity was noticed and exploited some cen­turies later by jurists attached to the Akhbari school. The heated discussion around the legitima­cy of ijtihad amongst later jurists can prevent a clear understanding of the beginnings of legal theoretical ideas within the Twelver Shi'i tradition, and their incorporation into works which are recognisably of the usul al-fiqh genre.

In some of the recorded Imams’ statements (akhbar), there is (at least) an apparent rejection of certain deductive processes associated with the emerging discipline of usul al-fiqh. This is not to say that there is no theoretical content within the legal akhbar found in Twelver Shi'i collec­tions. Indeed, the process of derivation of rulings from fundamental rules or texts appears to be sanctioned by statements such as:

From Imam Ja'far al-Sadiq: We are merely required to introduce to you the usul - you are duty-bound to apply [them] (tafarra^cu).^[67]

Furthermore, there are akhbar in which the Imam himself reveals the legal grounds on which he makes a particular ruling.

'Abd al-A'la said: I said to Abu 'Abdallah (Ja'far al-Sadiq), “I tripped and broke the nail of my finger, and there is a bandage on it - how should I do the ritual ablution?” He replied, “This, and cases like this, are covered in the Book of God when he says, “In religion, hardship is not to be placed upon you.”^[68], so wipe over it.”^[69]

Reports such as these imply that there is a process of legal justification for the Imam’s rulings. That is, the recorded rulings of the Imam are not simply his diktat to be obeyed without question or reason. Rather, there is a logic or rationale to the rulings, and as such, a process of justification for specific rulings is revealed by the Imam. In this case, the hardship caused by taking the bro­ken nail too seriously is deemed excessive, and therefore, implied within the justification is a process of deduction. Since the legal rulings emanating from the Imams are revealed as based on proofs, new rulings (potentially) can be derived when they are also based on a proof. This is how the Imams’ akhbar - which appear to encourage the deduction of specific legal rulings (furu^c) from fundamental principles or cases (usul) - are understood. A variant (both in the wording and the attributed Imam) to the above cited report states:

From Imam al-Rida: We are required to deliver the usul - you must perform tafrT.^[70]

Here the use of the term tafri^c - which came to mean the technical legal derivation from funda­mental cases (usul) to dependent cases (furu^c) - is significant. The root-branch metaphor was, of course, well-developed in discussions around Islamic legal theory, and was particularly devel­oped in the theory of qiyas. Here, with the rejection of qiyas, the use of tafri^c perhaps indicates a process of deduction of legal rulings, and their application to specific cases - which preserves the epistemological integrity of the Imams’ ruling.

Twelver Shi'i literary explorations of legal theory topics are mentioned by biobibliographers, including Hisham b. al-Hakam (d.179/795) on alfaz (speech acts) and Hasan b. Musa al-Naw- bakhti (d. c. 312/922) on al-khusus wa-l-^cumum (particular and general modes of speech). Such works have not survived, and it is not clear they were really works of usul al-fiqh, though it seems highly likely they discussed issues of legal theory. Furthermore, there is evidence of legal theory debates amongst the early Twelver jurists - most notably the disputed positions of the so-called qadimayn (“two ancients”) Ibn Abi 'Aqil (fl. 4th∕10th century) and Ibn Junayd al-Iskafι (d. c. 377/988) and their use of qiyas. The first monographic treatment of legal theory is normally taken to be a highly abbreviated text which covers the main areas of usul by the Baghdad-based scholar al-Shaykh al-Mufid (d. 413/1022) titled al-Tadhkira fi usul al-fiqh. The text is preserved in Abu l-Fath al-Karajaki’s (d. 449/1057) Kanz al-fawa¹id - a miscellany of religious and literary comments. Some consider the Tadhkira text to be an abridgement of another, larger (lost) text of usul al-fiqh by al-Shaykh al-Mufid.^[71] The work could have been abbreviated by al-Mufid himself, or by al-Karajaki, or by someone else. It is not entirely clear which of these is the case from the text itself, or the introductory remarks in Kanz al-fawa^,id.^[72] Whether the Tadhkira text is the work itself, or whether it is a selection or abbreviation of a longer text, at the current time, it is all we have of al-Mufid’s monographic usul production.

The features of the text, though, reflect typical early Twelver concerns around epistemology. The text is not dismissive of legal hermeneutics (indeed it describes and validates particular pro­cedures), but demands that the results of deductive procedures result in certain knowledge (^cilm). The certainty of the legal stipulations found explicitly mentioned in revelatory sources must be extended to legal stipulations derived from those sources through deductive methods. For exam­ple:

When the expression of a command is found following the mention of a prohibition, it reveals a per­mission, not an obligation; such as in the statement of God, may he be praised, “when prayer is over, disperse throughout the land”^[73] after his statement, “When prayer is called on Friday, proceed to the remembrance of God”.^[74]

An imperative (a command) indicates obligation (wujub) when appearing in a text of revelation in an unconditioned manner - this is the general rule. However, al-Shaykh al-Mufid argues that if the imperative occurs immediately after a permission (as we find in this verse), it indicates a permission (ibaha) rather than an obligation. In the example case, God says that the people should disperse throughout the land after they have performed the Friday prayer, but this does not mean they are obligated to disperse. Unlike when they have just been obligated to attend the Friday prayer (through the imperitive “proceed to the remembrance of God”), this imperative (i.e. “disperse!”) represents God permitting the people to leave. If some of them stay in the mosque after Friday prayer is finished, they have not transgressed the law as this second imper­ative is merely a permission to leave following the obligation to attend. The legal knowledge derived from the application of such a hermeneutic rule would appear to be as indubitable as the application of the “usual” rule which links imperative and obligation.

For al-Mufid, legal sources and deductive mechanisms which do not bring ^cilm are invalid.

Notwithstanding the distinctive doctrines found in these works, there was a shared basis for legal theory: namely, the epistemological dedication to ^cilm (certain knowledge), yaqin (verisi­militude) and qat^c (definitiveness), and the concomitant rejection of ra'^jy (opinion) and zann (assumption). The reception of the works of al-Murtada and al-Tusi within the tradition is diffi­cult to ascertain. Certainly, they were listed and referenced by subsequent authors, but their ef­fect on thinking around legal theory appears unclear. In terms of general accounts of Twelver legal theory, the usfll-based introduction of furu^c work Ghunyat al-nuzu^c by Ibn Zuhra al-Halabi (d. 585/1189) would appear to follow a similar trajectory. As the centre of gravity for Shi^ti schol­arship shifted from Baghdad to south Iraq (Najaf and Hilla), the works of al-Murtada and al-Tusi were almost entirely displaced as representative works of Twelver usul by the extensive body of work on legal theory produced by first al-Muhaqqiq al-Hilli (d. 676/1277), and then by his neph­ew, al-^tAllama al-Hilli (d. 726/1325).

Discounting al-Mufid’s al-Tadhkira, al-Muhaqqiq al-Hilli’s Ma^carij al-usul can be seen as the first attempt by a Twelver Shi'i jurist to compose a mukhtasar-style usul work. It is short, direct and with little argumentation; as in mukhtasar works offiqh, the style of the Ma^carij invites com­mentary and elucidation, though it does not seem to have been picked up as a target of commen­tary immediately. This may be because of the success of the Mabadi l-usul of al-'Allama al-Hilli, which, by contrast, was rapidly the subject of commentary (see below). Al-'Allama’s Mabadi was, in particular, seen as an authoritative expression of the general doctrines of Twelver Shi'i legal theory. In terms of its contents, al-'Allama compromises in it on the stringent demands of certain­ty and verisimilitude, with an acceptance that some processes of legal deduction bring a lower (but acceptable) level of legal authoritativeness - that is, zann rather than qat^c. There is a recog­nition of ijtihad (now distinguished from ray and qiyas) as a valid hermeneutic procedure. There is a promotion of the legal authority of the advanced juristic stratum by advancing taqlid (“req­uisite following”) to the qualified jurist (mujtahid). Indeed, the whole of legal theory is now fil­tered through the legal opinions of the mujtahids, and the rest of the community is simply re­quired to be followers (muqallidun).^[77] The authority structure was clearly taken from Sunni usul works, but with added political potency: the mujtahids were positioned as leaders of a minority Shi'i community which doctrinally refused to recognise the legitimacy of the ruling governing power. Al-'Allama’s theory of ijtihad and taqlid gave the mujtahids a theoretical legal authority which was to be exploited by jurists in subsequent centuries.^[78]

The ideas of al-'Allama embedded themselves in Twelver Shi'i usul study, creating a sort of orthodoxy over the next three centuries. Fundamental to this “orthodoxy” was a full adoption of Mu'tazili theological principles within the discipline of legal theory, a promotion of a series of hermeneutic principles (though still excluding qiyas) whereby the revelatory texts might be mined for legal rulings in unprecedented areas, a promotion of the ijtihad for the qualified jurist (and a concomitant promotion of taqlid for the non-mujtahid), and finally an acceptance that there were areas of the law where the legal rule was less than certain (i.e. zann not 'ilm). Indica­tors which are less than certain, such as single-narration reports (khabar al-wahid) or a possible (but uncertain) exegetically derived conclusion, became theoretically useful for the jurist, though always with the advisory notice that the results will be zanni not ^cilmi. For some time after al-'Allama’s usul works, the broad framework was generally agreed even if particular hermeneu­tic mechanisms remained disputed. The next major independent study of usul after al-'Allama is probably the output of Shams al-Din Muhammad al-'Amili known as al-Shahid al-Awwal (d. 786/1384), whose al-Qawa^cid wa-l-fawa¹id does not conform the standard format of a work of usul, but clearly is based on similar epistemological foundations to the work of al-'Allama. For example, in the series of principles relating to ijtihad, al-Shahid al-Awwal argues that one mujta- hid cannot decry the contrary opinion of another mujtahid in matters such as the direction of prayer. They each have their own opinion, and they are equally valid.^[79] The underpinning epis­temology supporting such a description had been laid out by al-'Allama a couple of generations previously. The same could be said of the Tamhid al-qawa^cid by Zayn al-Din 'Ali b. Muhammad al-'Amili known as al-Shahid al-Thani (d. between 965-966/1557-1558). He states categorical­ly, “By general agreement, a mujtahid is not permitted to follow anyone else after he has done his own ijtihdd. There are different opinions about whether [he can do this] before he has done his [ijtihdd], but the soundest view is that this is absolutely prohibited.”^[80] Just as a mujtahid cannot decry another mujtahid’s opinion, he also cannot follow it, since to do so would be a dereliction of his duty to perform ijtihdd for himself. Both these works are unusual, being structured as works of qawd^cid (legal maxims/principles) rather than works of usul. Nonetheless, the principles laid out in these works clearly mesh with the line of thought in Twelver Shi'i usul al-fiqh established by al-'Allama.

As with most disciplines in the classical period, critical to the further development of usul as a discipline was the emergence of a commentarial tradition. Al-Sharif al-Murtada’s al-Dhari^ca was the target of commentary within a century of its composition; commentary on al-'Allama’s Tah- dhib al-wusul was almost immediate with a commentary by al-'Allama himself, followed by com­mentaries by his son Fakhr al-Muhaqqiqin al-Hilli (d. 771/1369), and his pupils (and nephews) Diya³ al-Din al-Hilli (d. c. 740/1339) and 'Amid al-Din al-Hilli (d. 754/1354). Al-'Allama’s dense, brief work Mabddi l-usul similarly received commentaries from both 'Amid al-Din and Fakhr al-Muhaqqiqin among others. The Mabddi is, perhaps, the usul work by al-'Allama which invites commentary through its brevity; there was a steady stream of commentaries on it into the 19th century CE. The emergence of a vibrant commentary tradition reveals, of course, a rich history of institutional study in madrasas and study circles (in Hilla in the early period, and more widely over time) in which usul al-fiqh is cemented as a critical discipline of study in the seminary cur­riculum.^[81] There was a move away from expansive monographic works of usul towards mukhtasar style works with numerous commentaries. Al-Hasan b. al-Shahid al-Thani (d. 1011/1602) pro­duced perhaps the most studied work of Twelver Shi'i usul in the premodern period with his single volume Ma^cdlim al-usul (which is, properly speaking, an usul introduction to a much larger furu^c work titled Ma^cdlim al-din wa-malddh al-mujtahidin). This soon became a seminary textbook, and maintained that preeminent position into the 20th century CE - and commentaries are still written on it even today.^[82] Similarly, al-Shaykh al-Baha’i’s Zubdat al-usul is an extremely densely worded usul work, subjected to a commentary by al-Shaykh al-Baha³i himself, and other com­mentaries by scholars during the author’s lifetime and in the subsequent centuries.

A question underpinning scholarship both within and outside of the Twelver Shi'i tradition concerns the continuity of usul thinking (or lack thereof) from the works of al-Shaykh al-Mufid, al-Sharif al-Murtada and al-Shaykh al-Tusi to those of al-Muhaqqiq al-Hilli, al-'Allama al-Hilli and subsequent thinkers. Can the later tradition best be seen as an extension or development from the former? Alternatively, is the later scholars’ absorption of ijtihdd and zann into Shi'i legal epistemology a break or innovation?^[83] The answer to this question was to be the subject of in­tense debate during the postclassical period. As with most pre-modern Muslim intellectual tradi­tions, jurists writing Twelver usul al-fiqh were wary of innovation since it might indicate devia­tion from the straight path, and an implicit criticism of the past luminaries of the tradition. Hence, those who developed the doctrines in, say, al-'Allama’s writings, tended to argue that, despite the evolving and changing use of terminology, the fundamental continuity of the tradi­tion was not broken by an intervention, and therefore al-Hasan b. al-Shahid al-Thani and al- Shaykh al-Baha³i were participating in an intellectual discipline which stretched back in an un­broken chain to the time of the Imams. Preserving the impression of continuity despite apparent change and development was a tried and tested mechanism for conserving the tradition’s unity. However, there were indications of unhappiness with the apparently uncritical adoption of zann and the accompanying reduced emphasis on acquiring certainty implied in the developing epis­temological framework. There emerged amongst some thinkers, an emphasis on hadith and a “return” to the collections of reports (akhbar) as sources of legal knowledge. These rumblings were to come to the fore in the enormously influential and controversial writings of the jurist Muhammad Amin al-Astarabadi (d. 1033 or 1036/1623 or 1626), and in particular his al-Fawahd al-madaniyya fl l-radd ^cala man qala bi-l-ijtihad wa-l-taqlid fl l-afikam al-ilahiyya (“Medinan Mus­ings Refuting Those Who Support Ijtihad and Taqlld in Divine Rulings”). Al-Astarabadi attacked al-'Allama, describing him as a Sunni-influenced innovator whose promotion of zann and ijtihdd was contrary to the message of the Imams. He saw in al-'Allama’s legal theory a degradation of the position of the Imams and a promotion of other sources of law (including pure reason, ^caql), and specifically the practice of ytihad. The Shi'a had taken a wrong turn when they adopted al-'Allama’s legal theory, and all those who have followed him have put the “true religion” and “saved sect” (al-firqa al-najiya) in grave danger, al-Astarabadi argued. It was from this pointed and direct attack on the mainstream of legal theory that the movement known as al-Akhbariyya (i.e. those who prioritise the reports - akhbar - of the Imams) developed amongst the Shi'a of the Arabian peninsula, in Safavid Iran and in the seminaries of the Iraqi shrine cities. Unlike their opponents, who became known as al-Mujtahidun (promoters of ytthad) and al-Usuliyya (defend­ers of the predominant usul al-fiqh - legal theory), the Akhbaris viewed al-'Allama’s ideas as a threat to central doctrines of Shi'ism, and they sought to construct an alternative legal theory in which the knowledge (al-^cilm) contained in the reports of the Imams became the first point of reference for the jurist faced with a legal issue.

Whether al-'Allama’s conception of usul al-fiqh was an innovation, or a continuation of the Imams’ message was, then, not a purely historical question at this time. His legacy, and the level to which his paradigm should be adopted, lay at the heart of the Akhbari-Usuli dispute in the postclassical period. In Iran, the dispute became mixed up with state-^culama^, relations, as mem­bers of both “schools” sought royal patronage to promote their vision of the sharTa and its deri­vation.^[84]

In terms of literary production, we see a rise in popularity of new genres in which legal theo­ry was discussed. Strictly speaking, Akhbaris did not see usul al-fiqh (as a discipline) to be neces­sary: the legal norms are derived, in a straightforward and uncomplicated way, from the sayings and actions of the Imams; the sayings and actions of the Imams are recorded in reports (akhbar) which have been sifted, selected and collected into books by early Shi'i scholars. According to Akhbari doctrine, only the reports which are historically accurate have been included in these collections, so the jurist can rely on them as the basis for legal norms. The task of the jurist is not

to interpret and assess these reports, but to pass on the legal knowledge which is found within them.^[85] In the usuli/mujtahid theory, the jurist exerts effort (istifragh al-wus^c) to understand the intended meaning of the Lawgiver (shark - that is, God, the Prophet or the Imams), reaching an opinion with which other jurists might legitimately disagree. In the Akhbari theory, the jurists are the guardians and transmitters of the knowledge (^cilm) found in the reports, and their task is to transfer this knowledge to the individual members of the community without the jurist’s per­sonal interpretation influencing the presentation of the legal norm. Simple as the Akhbari theory may appear (some have even called it a form of “fundamentalism” or “literalism”),^[86] al-As- tarabadi, and those thinkers who followed his general approach in subsequent centuries, were actually to produce a series of nuanced theoretical works in which they revealed remarkable hermeneutical complexity and sophistication. For example, the assertion that the akhbar in the collections of the early jurists were all reliable sources for legal rulings required a deconstruction of the method of hadith categorisation developed by Jamal al-Din Ibn Tawus al-Hilli (d. 673/1274-5) and al-'Allama and developed in over three centuries of juristic reflection. The Usuli approach was to place individual reports into one of (usually) four categories, with each category revealing the level of confidence the jurist might have in the report when deriving legal norms. Al-Astarabadi rejected this exercise, arguing that not only was this categorisation schema a Sunni importation, but more seriously, the approach is an accusation of bad faith against the early generation of Shi'i intellectuals. Categorising the reports in terms of reliability, he argues, is to undermine the work which the early scholars carried out in sifting and determining which reports to include in their collections. The early scholars had access to materials and sources which are lost to later generations; and therefore, they were able to make selection decisions which later scholars (such as al-Astarabadi’s contemporary Usulis) are unable to make. The as­sertion that collators of the so-called Four Books (al-kutub al-arba^ca)^[87] performed an error-free task became an important element of Akhbari polemics, and led to the Four Books gaining a sort of “canonical” status.^[88]

The Akhbaris, even though they rejected the discipline of legal theory, were forced to engage with it on its own terms in order to deconstruct it. Al-Astarabadi did not write a work which followed the structure of a work of usul, and many subsequent Akhbari scholars, consciously or not, also avoided the usul genre. In a period when composing a work of usul was one indication of scholarly prowess, their non-engagement with the genre can be interpreted as an explicit com­ment on the utility of usul al-fiqh. Mulla Muhammad Tahir al-Qummi (d. 1098 or 1100/1686 or 1688) and Muhammad b. al-Hasan al-Hurr al-'Amili (d. 1104/1693) were renowned scholars, and prominent within the Iranian Safavid seminary and legal system, and they made numerous comments on issues of usul al-fiqh. They did so, though, in an almost intentionally unsystematic manner writing works of fawa¹id (“miscellaneous comments”) rather than full-blown works of usul. For them, systematising legal theory, in itself, appears to be a submission to the principles of predictability and coherence, which run counter to Akhbari doctrine. Working within usul’s generic constraints, even when advocating an Akhbari position, is a compromise which only some Akhbaris appear willing to make. Nonetheless, there are examples of Akhbari works of usul al-fiqh. They follow (roughly) the recognised structures and tackle the same canonical set of “is­sues” or “problamata” (masa¹il). These include the Hidayat al-abrar of Husayn b. Shihab al-Din al-'Amili (d. 1076/1665), and later Yusuf al-Bahrani’s (d. 1186/1772) al-Muqaddimat (“Introduc­tory Remarks”) to his extensive Akhbari fiqh work al-Hadd^,iq al-nadira fi ahkdm al-^citra al-tahira. The influential al-Wafiya of 'Abdallah al-Fadil al-Tuni (d. 1071/1600) also has clear Akhbari sympathies, at least in some sections. It is obviously structured in the standard manner of a work of usul al-fiqh, and its presentational orthodoxy has led to it being incorporated into the canon of Usulism despite its occasionally explicit Akhbari-leaning content. An edition of a section from one of the many commentaries on al-Tuni’s al-Wafiyya can be found in Chapter 2 of this volume. In addition to monographic texts, Akhbari scholars also engaged in commentarial works using past texts as the base. The comments were not always positive (since the base text may have been Usuli in character). Al-Astarabadi, for example, wrote a critical commentarial gloss (hashiya) on the standard Usuli work al-Muhaqqiq al-Hilli’s Ma^cOrij al-usul. Of particular note is the sudden popularity of the commentary on al-Tusi’s ^cUddat al-usul of the Akhbari scholar Mulla Khalil al-Qazwini (d. 1089/1678). His Hashiyat ^cUddat al-usul was much copied, and much read, and was itself subjected to supercommentaries by both supporters and opponents.

As the Akhbari tendency was developing a coherent literary corpus (and perhaps even form­ing a “school” - madhhab, firqa, madrasa), scholars who considered themselves to be developing the fundamental principles of legal theory laid down by al-'Allama (i.e. the Usulis) developed yet more nuanced elaborations in more standard works of usul al-fiqh. Foremost amongst the works composed in this period were the above mentioned Ma^calim al-usul (of Hasan b. al-Shahid al- Thani) and al-Shaykh al-Baha’i’s Zubdat al-usul. These two works attracted together 150 recorded commentaries (104 for Ma^calim and 46 for Zubda) over the next 3 centuries, demonstrating the continued vibrancy of Usuli thinking despite the Akhbari challenge.^[89] Sections from two com­mentaries on al-Shaykh al-Baha’i’s Zudbat al-usul are included in this volume, both dating from a century or so after his death, and they testify to the high scholastic culture which had developed. In Chapter 1, a section from the Sharh Zubdat al-usul by the Safavid scholar, Muhammad Salih al-Mazandarani (d. 1081/1670) is presented. Chapter 4 contains a portion of the Ghayat al- ma¹mul fi sharh Zubdat al-usul by Jawad b. Sa'dallah al-Kazimi (d. 1065/1655). These two chap­ters are just a snippet of the wealth of commentaries from Usuli scholars from this period.

In the late 18th century a rivalry between two eminent scholars played out in the shrine city of Karbala in southern Iraq. Yusuf al-Bahrani (whose voluminous al-Hada^yiq al-nadira has already being mentioned), sometimes described as a “moderate Akhbari” had gathered around him a devoted circles of followers, and was clearly the leading scholar of Karbala until his death in 1186/1772. The dominance of Akhbarism in Karbala was supposedly such that students carrying works of Usuli jurisprudence were in danger of verbal and physical attack. In this atmosphere, a scholar from Iran who had arrived in Karbala, Muhammad Baqir al-Bihbahani (d. 1205/1791), began teaching Usulism secretly. Gradually, his classes gained momentum and popularity, and he was able to engage in semi-public debates with al-Bahrani, arguing for the usuli/mujtahid position (as he understood it). The two scholars were clearly diametrically opposed, in terms of legal methodology, but appear to have viewed each other with great respect. When al-Bahrani died, al-Bihbahani led the prayers at the public funeral, thereby affirming to the gathered Shi'a that al-Bahrani was, indeed, a scholar of great merit. However, al-Bahrani did not leave an Akh- bari scholar of comparable stature, and al-Bihbahani was, following al-Bahrani’s death, the un­disputed leading scholar in southern Iraq. He was known by the title al-Wahid (“the Unique”) and was able to begin, more openly, to train a generation of Usuli scholars who were to lay the foundations for contemporary Twelver Shi'i jurisprudence until today. Al-Bihbahani’s own schol­arly output did not include a properly structured usul monograph; it did, though, include a num­ber of treatises (rasa¹il) and “miscellaneous remarks” works (fawadd) which were much read and copied. In particular, he composed two collections of “miscellaneous remarks” - an early and a late (al-Fawadd al-qadima and al-Fawa¹id al-jadida respectively). Together, they were sometimes referred to as al-Fawa¹id al-ha¹iriyya. In this collection he presents a reassertion of Usulism, a promotion of the authority of the mujtahid’s zann, and a systematic refutation of the naive Akh- bari acceptance of all the recorded Imams’ reports (akhbar). Al-Fawadd al-hddriyya, along with his targeted anti-Akhbari treatises (including his Risala fi l-ijtihad wa-l-akhbar and Risala fi hujji- yyat al-zann) became the foundational texts of an Usuli renaissance spearheaded by his pupils.

Al-Bihbahani tutored a series of highly influential Usuli jurists who developed and elaborated his approach, and within a few years, the Akhbari school had been marginalised and Usulism formed the new orthodoxy in the seminaries. The cohort of al-Bihbahani’s pupils were, in many ways, the ones who really established Usulism. They included Muhammad Mahdi Bahr al-'Ulum (d. 1212/1797), Ja'far b. Khidr Kashif al-Ghita’ (d. 1227/1812), al-Sayyid 'Ali al-Tabataba’i (d. 1231/1816, known as Sahib al-Riyad) and al-Mirza Abu l-Qasim al-Qummi (d. 1231/1816). All of them composed critical works in the field of usul al-fiqh, including Kashif al-Ghita’’s Kashf al- ghita^{1 c}an mubhamat al-shari^ca al-gharra^, (which has an usul section), Bahr al-'Ulum’s al-Fawadd al-usuliyya and al-Mirza al-Qummi’s popular Qawanin al-usul (also known as al-Qawanin al-muhka- ma fi l-usul). Al-Mirza al-Qummi is normally characterised as a thinker who pushed the notion that certain legal knowledge was no longer available - all that was left was legal opinions, and that it was the mujtahids who were, in the main, the only individuals qualified to carry out ijtihad and produce these opinions. Not all Usulis were so pessimistic about the possibility of acquiring legal knowledge, but this did not prevent the Qawanin becoming the subject of over 56 commen­taries over the next century.^[90] Also amongst al-Bihbahani’s pupils was Muhsin b. al-Hasan b. Murtada al-A'rajι (d. 1227/1812), a section of whose commentary on al-Tuni’s al-Wafiya is edit­ed in Chapter 2 of this volume. This generation of scholars effectively extinguished the Akhbari school. The last Akhbari scholar of any significant fame, al-Mirza Muhammad al-Akhbari (d.1232 or 1233/1817 or 1818), was subject of a concerted campaign of vilification by Usuli scholars, eventually leading to his murder. An edition of al-Mirza Muhammad al-Akhbari’s introduction to his Fath al-bab ila l-haqq wa-l-sawab is edited and presented in Chapter 5 below. This work, in common with al-Mirza Muhammad’s many other Akhbari expositions, argues for the supremacy of legal knowledge derived through the reports of the Imams, and severely censures the mujtahids for presenting their unsubstantiated “opinions” (zunun) as somehow legally binding (i.e. being worthy of taqlid). In the passage edited and summarised in Chapter 5, Mirza Muhammad cri­tiques the Usuli notion that the door to certain knowledge is “closed” and instead argues that the reports of the Imams can be relied upon to bring the Shi'i community certain legal knowledge (^cilm).

Mirza Muhammad al-Akhbari’s controversial public defence of Akhbarism - in which he ex­pressed his exasperation with the community for deviating from the Imams and turning instead to the fallible opinions of the mujtahids - did not reverse the decline of the Akhbari school. The rest of the 13th∕19th century witnessed an explosion in the production of usul al-fiqh works in Iran, Iraq, India and elsewhere in the Shi'i world and nearly all of them employed (and elaborat­ed on) the jurisprudential framework laid out by al-Bihbahani. The ^culama^,, as a social class, became increasingly wealthy, more influential, and, critically, were able to operate independent of the state.^[91] This facilitated the production of scholarly literature, including usul al-fiqh, in pre­viously unheard-of quantities. Lengthy monographs, detailed treatises, commentaries on key usul works of the past centuries were written in huge number. The pupils of al-Bihbahani maintained this legacy, and an example of this can be seen in Chapter 3 with edition of a section of the Ka- washif al-hujub ^can mushkilat al-kutub by Muhammad Salih b. Muhammad Muhsin al-Mazandarani (d. 1285/1868).^[92] Key usul writers in this period include Muhammad b. 'Ali al-Tabataba³i “al-Mu- jahid” (d. 1242/1827), so called because of his involvement in fighting of the second Russo-Per­sian War (1722-1723). Al-Mujahid’s Mafatih al-usul is a wide-ranging and impressive piece of usul scholarship. A little later than al-Mujahid, yet more long and detailed usul works were com­posed including al-Fusul al-gharawiyya of Muhammad Husayn al-Ha⅛i al-Isfahani (d. 1254/1838­9), the Dawabit al-usul of Ibrahim b. Muhammad Baqir al-Qazwini (d. 1262/1845-6, 6 volumes in the print edition) and a new commentary on the Ma^calim al-usul of Hasan b. al-Shahid al- Thani, the Hidayat al-mustarshidin of Muhammad Taqi al-Isfahani (d. 1248/1832). In these works, there emerges the prevalent methodology of contemporary Shi'i jurists which were later to be commonly referred to as al-usul al-^camaliyya (“procedural principles”). These UsUlis focussed at­tention on the operation of particular hermeneutic tools which were available to the mujtahid, making this exercise central to providing the wider Twelver Shi'i community with practical guidance for their religious life. This included principles such as “the principle of fundamental non-assessment” (asalat al-bara^,a)^[93] or “the principle of the continuance of a situation” (istishab al-hal).^[94]

The thinking around these principles was incrementally developed by Usuli thinkers in the 19th century, and was most explicitly elaborated by al-Shaykh al-Murtada al-Ansari (d. 1281/1864). Al-Ansari’s usul composition has the title Fara¹id al-usul, but is regularly referred to as al-Rasa¹il (“the treatises”) and is an unusually structured work of legal theory. It is arranged around a series of collated comments categorised by epistemological category, rather than legal source. In the first section, al-Ansari analyses legal “certainty” (^cilm - that is, those legal proce­dures and sources which bring certain knowledge of the Lawgiver’s intention); in the second section, he analyses “opinion” (zann - that is, those procedures and sources which provide the jurist with an opinion of the Lawgiver’s intention, which is less than certain but does provide a basis for legal advice); in the third section, he analyses “doubt” (shakk - that is when the evi­dence is such that he is unable to provide even an opinion about what the legal ruling should be). In the last of these cases, there is a theological requirement for the jurist to provide guidance to the legal subject (mukallaf), and so there must be a mechanism for identifying some sort of rul­ing. It is here that al-Ansari proposes the theory of al-usul al-^camaliyya:

When [the individual legal subject] is in a position of doubt (shakk), the source for him in such circum­stances are the legal principles established for situations of doubt. These are called al-usul al-^camaliyya (procedural principles).^[95]

It was from this basis that the leading Usuli of the next generation, al-Akhund al-Khurasani (d. 1329/1911), composed his highly influential work Kifayat al-usul. In the Kifaya, al-Khurasani expanded the scope of al-usul al-^camaliyya, such that these procedural principles emerged as per­haps the primary tools of the jurist - and it is on this basis that much twentieth century Twelver legal theory progressed. There remain discussions about when the procedural principles should be used; there are debates around which principle is primary (i.e. which should operate first in the specific cases); and there are debates around the status of the ruling which emerges from the application of the procedural principles (is it zann like the zann of the mujtahid? or is it of a dif­ferent epistemological category?). In the second half of the twentieth century a few scholars at­tempted to summarise and restructure the study of usul al-fiqh by writing concise books that could also serve the purpose of textbooks for the seminary students. Among these works, two books merit mention that continue to be taught and studied until today namely, Muhammad Rida al-Muzaffar’s Usul al-fiqh and Muhammad Baqir al-Sadr’s Durus ft ^cilm al-usul (popularly known as Halaqat, in three volumes: elementary, intermediate and advanced level). All this has made twentieth century Twelver Shi'i usul al-fiqh an advanced and complex system of legal the­ory, in which readers would be justified in likening much contemporary Twelver Shi'i usul writ­ings to philosophy rather than jurisprudence. What these developments have demonstrated is that the generative questions of much modern Twelver usul al-fiqh are epistemological. In this sense, then, the concerns of the earliest Twelver Shi'i jurists over preserving ^cilm in the face of the (Sunni) zann are maintained in the writings of many Twelver contemporary jurists.