The Roots of Sunni-Shi’i Differences in Fiqh

[Abu Muhammad al-Afriqui]

It is often alleged by the protagonists of Sunni-Shi‘i unity that differences between the two schools are not more grave or serious than the differences that exist within the four Sunni schools of jurisprudence. Sunni-Shi‘i differences should therefore be treated with the same tolerance and acceptance as Hanafi – Shafi‘i differences, and it is in the spirit of this proposed “mutual tolerance” that the advocates of unity speak of the Shi‘i Ja‘fari school of jurisprudence as nothing more than a “fifth madh-hab“.

It is therefore only normal for the average Sunni lay person who has come into contact with advocates of Sunni-Shi‘i unity to wonder about, or even be taken in, by such a claim. How serious are the differences between the Ahl as-Sunnah and the Shi‘ah really? Could they ever be reconciled? If not, could there at least be an amicable agreement to disagree, just like the Hanafis disagree with the Shafi‘is, or the Malikis with the Hanbalis? It is these questions that this article sets out to answer.

Full reconciliation between the Ahl as-Sunnah and the Ithna ‘Ashari Ja‘fari Shi‘ah is not merely elusive, it is simply an impossibility. Anyone who knows the reality of the issues that separate the Shi’ah from the Ahl as-Sunnah is bound to agree. Nothing sums up the truth of the situation better than the words of Hamid Algar—an ardent admirer of Khomeini and the revolution—, who describes Sunnism and Shi‘ism as “two parallel lines that cannot meet”. The endeavour to bring about reconciliation between the Ahl as-Sunnah and the Shi‘ah is therefore a wasted effort. The next best option is thus mutual tolerance and acceptance.

In order to test the viability of tolerance and acceptance between the Ahl as-Sunnah and the Shi‘ah we will have to look more closely at the issues that separate the one from the other. These issues can be categorised into two groups:

 

1. fundamental differences,

which include articles of faith, and all such issues that could be termed “differences in principle”, that by their nature give rise to differences in secondary matters;

2. secondary differences,

i.e. difference in matters of jurisprudence, like the way salah is performed, or that marriage and divorce take place, etc..

Each of the fundamental issues of difference would require a separate study to see how they affect compatibility between the Ahl as-Sunnah and the Shi‘ah. In this article it is our intention to look more closely at the type of difference that is usually dismissed as “secondary”, and thus “unimportant”. Are differences in fiqh between the Ahl as-Sunnah and the Shi‘ah really so insignificant that we can jusitifiably turn a blind eye when we encounter them?

There can be no doubt that this question is anathema to the propagators of Shi‘ism amongst the Ahl as-Sunnah, as well as to those who have fallen prey to their propaganda. Yet, if it is truth we seek, we cannot allow the preferences of such obviously biased persons to deter us. The “unity” such people strive to achieve, and which they accuse others of trying to destroy, is a unity forged in ignorance. How much do we really know about the Shi‘ah? We have taken them on face value, and on grounds of what we have thus learnt about them we proceed to create unity. The naivety of such a position in a matter of far reaching religious implications is far too obvious. A unity founded upon ignorance is a very precarious unity indeed. Like a mirage, it seems very real when seen from afar, but as soon as you approach it, it slips out of existence.

There are two levels at which one can look at the differences in jurisprudence between the Ahl as-Sunnah and the Shi‘ah. The first is the level of external appearance. When the differences in fiqh are inspected at this level they do not seem any more alien than the differences that exist between the various schools of Sunni jurisprudence. In fact, in many, or even most cases one will find the Shi‘i position to be conformity with at least one of the four Sunni madhahib. This is illustrated in the following three examples:

In the salah, the jalsat al-istirahah is held to be sunnah by the Shi‘ah. In this they concur with the view of the Shafi‘i madhhab. [Yahya ibn Sa‘id al-Hilli: al-Jami‘ lish-Sharai’ p.75 (Mu’assasat Sayyid ash-Shuhada’, Qum 1405)]

In marriage the majority of Shi‘i jurists hold the view that khalwah, i.e. valid seclusion, has no effect on the mahr (dowry) nor upon any other aspect of the marital contract. In this they are once again agreement with the Shafi‘is, but differ from the other three schools. [Muhammad Jawad Maghniyyah: The Five Schools of Islamic Law p. 319 (Ansariyan Publications, Qum 1995)] If the husband is unable to pay the mahr the wife is not entitled to divorce according to the Shi‘i and the Hanafi schools. The Malikis, the Shafi‘is and the Hanbalis all have different views. [ibid]

It is on this level that most people view the differences that exist between the Ahl as-Sunnah and the Shi‘ah. Even certain `ulama of the Ahl as-Sunnah, looking at the matter on this level, have been known to express the view that “differences between the Ahl as- Sunnah and the Shi‘ah are no more serious than the differences that exist between the various schools of Sunni jurisprudence”.

However, when we confine ourselves to viewing the problem of Sunni-Shi‘i differences on this level we are in effect closing our eyes to the most important aspect of those differences: THE ROOT. The true nature of Sunni-Shi‘i differences can never be appreciated or understood in full without comprehending the reasons for their existence. It is only when the problem has been viewed and grasped on the level of the reasons for difference, and not merely the external appearance of difference, that one is justified to take further steps.

When the Shi‘ah differ from the Ahl as-Sunnah, it is not the same as when one Sunni school differs from the other. This is because the various Sunni schools all trace their roots back to the same legacy. They share a common heritage in the Sunnah of the Prophet (sallallahu ‘alayhi wasallam). When differences do occur, they occur not because one madhhab bases itself on a legacy other than the legacy of the other. Both believe in and hold on to the same legacy. Their differences are caused by secondary factors, like whether certain categories of hadith possess binding authority or not, or the divergence in the methods they regard as valid to interpret the legacy and extrapolate from it. The following two examples illustrate how such differences occur:

The mursal hadith (a hadith with an interruption in its chain of narrators between the Prophet sallallahu ‘alayhi wasallam and the Tabi‘i), for example, is deemed to possess binding authority by the Hanafis, while the Shafi‘is do not accept it except if it is supported by any one of a number of external factors. If we imagine a mursal hadith that is not supported by any of the factors the Shafi‘is stipulate, it is only logical to expect that the Shafi‘i ruling on the issue the hadith pertains to will differ from the Hanafi ruling.

Spoken words are sometimes accompanied by implied meanings. For example, when it is said, “Stay awake,” this also means “Don’t sleep”. This unspoken opposite meaning is termed mafhum al-mukhalafah. The Shafi‘is accept it as a valid means of extracting meaning from a text, while the Hanafis do not. If the former extract such meaning from a text and base a ruling upon the meaning inferred by this method, and the latter base their ruling upon some other grounds, there is bound to be a measure of difference in the outcome of their respective views.

Sunni-Shi‘i differences, on the other hand, are fundamentally distinct from inter-Sunni differences. While it may rightly be claimed that the Shi‘ah, too, have their particular principles of extrapolation, it would be incorrect to describe those principles as the root cause of difference between them and the Ahl as-Sunnah, the reason for that being that while the Sunni schools each have methods of extrapolation particular to themselves, they all apply their respective methods to the same legacy. The Shi‘ah, on the other hand, have not only their own set of principles, but also a legacy distinct from the legacy of the Ahl as-Sunnah. When there are differences between the Ahl as-Sunnah and the Shi‘ah, they arise not on account of differences in interpretation or methods of extrapolation, but because the source from which the Shi‘ah draw their law is a source other than the source of the Ahl as-Sunnah.

What is this “legacy”, the reader may well ask. It is embodied in the Sunnah of the Prophet (sallallahu ‘alayhi wasallam). As far as the Qur’an is concerned, although history is witness to alot of Shi‘ite calumny against the inviolability of the Qur’an, most contemporary Shi‘i scholars, and even many of their classical ‘ulama who staunchly believe in its interpolation, will admit the Qur’an’s status as the prime source of legislation. (A Shi‘i scholar of the present century, Muhammad ‘Ali Tabataba’i, reconciles belief in the interpolation of the Qur’an with acceptance of the Qur’an as a source of legislation by saying that “interpolation occured specifically in those verses relating to Imamah.” [Tafsir al-Qummi] Verses with a legal purport are thus left uncorrupted.) Since the Qur’an is thus “agreed upon” between the Ahl as-Sunnah and the Shi‘ah, there remains only the other part of the legacy we inherited from the Messenger of Allah (sallallahu ‘alayhi wasallam): the Sunnah.

Essentially, the difference lies in the concepts each have of what constitutes the Sunnah. According to the Ahl as-Sunnah the Sunnah is everything narrated from the Prophet (sallallahu `alayhi wasallam), as long as the transmitters are trustworthy. The Shi‘ah, on the other hand, will only accept as the Sunnah that which is transmitted by ‘Ali ibn Abi Talib (radhiyallahu ‘anhu) and the rest of the twelve Imams, and that which is narrated from these Imams by their Shi‘ah followers. Forget what the rest of the Sahabah narrate, not even the narrations of other members of the household of the Prophet (sallallahu ‘alayhi wasallam), his daughters besides Fatimah (radiyallahu ‘anha), his wives, his cousins or uncles, are considered part of the Sunnah by the Shi‘ah. That is the first observation.

The second is the way the Shi‘ah regard the legacy upon which the foundations of Sunni fiqh rests. Since the days of the Sahabah (radhiyallahu ‘anhum) the Sunnah of the Prophet was handed down from generation to generation. The Sahabah narrated it to the Tabi‘in, they to the generation after them, and so on, until it came to be compiled in what we know today as the hadith literature. To the Shi‘ah, when this legacy is found to be in contradiction to what is supposedly narrated from their Imams, the reason behind it is that the Sahabah (radhiyallahu ‘anhum) were guilty of wilfully distorting and corrupting the Din of Muhammad (sallallahu ‘alayhi wasallam). Thus, where inter-Sunni differences amount to nothing more than technicalities, Sunni-Shi‘i differences are differences in historical perspective.

To use an example: In salah, the Malikis let their hands hang by their sides, while the Hanafis, Shafi‘is and Hanbalis fold their hands. The Shi‘ah too, let their hands hang by their sides. In this single issue of fiqh we thus have an inter-Sunni difference as well as a Sunni-Shi‘i difference. Between the Malikis and the other three madhahib the difference is a mere technicality. The Malikis accept the validity of folding the hands in salah (after all, Imam Malik (rahmatullah alayh) himself in the Muwatta’ narrates a hadith that supports the folding of the hands), but prefer letting the hands hang for the reason that in Imam Malik’s day this was the practice of the community in Madinah. The other madhahib take into consideration that the Companions of the Nabi (sallallahu ‘alayhi wasallam) who narrate his Sunnah were not exclusively settled in Madinah. Many of them resided in the Makkah, ‘Iraq, Syria and Egypt. Ahadith to the effect that it is sunnah to fold the hands have been authentically narrated from a number of Sahabah (amongst whom ‘Ali ibn Abi Talib (radiyallahu ‘anhu), and therefore this, and not the practice of the people of one particular city, takes precedence. Between the Sunni schools this difference is a technical one, one that amounts to giving preference to one view over another. But between the Shi‘ah and the Ahl as-Sunnah the issue assumes much more serious proportions. From a question of mere technical preference it turns into an acrimonious indictment of the Sahabah (radiyallahu ‘anhum). Traditions in the book Tahdhib al-Ahkam, one of the four major collections of Shi‘i hadith, describe the folding of the hands in salah as “an act of kufr” and “something that is only done by the fire-worshippers”. Here one would have to ask: How could an alien practice like this creep into Islam? The answer is given by Ayatullah Khomeini himself, in his treatise at-Ta‘adul wat-Tarjih, wherein he quotes the following tradition from the book ‘Ilal ash-Shara’i‘ by Ibn Babawayh al-Qummi:

(Ja‘far as-Sadiq) asked: Do you know why you are commanded to act contrary to the`Àimmah (the Ahl as-Sunnah)?

I replied: I do not know.

He said: Verily, the Ummah contradicted ‘Ali in each and every aspect of his religion, intending thereby to destroy his cause. They used to ask him about things they did not know, and when he gave a ruling they would invent an opposite verdict from their own side to mislead the people.  [at-Ta‘adul wat-Tarjih by Ayatullah Khomeini, p. 82, cited in Dr. Zayd al-‘Is:al-Khomeini wal-Wajh al-Àkhar p. 131]

In the Shi‘i perspective of Islamic legislative history the fact that the Sahabah deliberately corrupted and distorted the teachings of the Nabi (sallallahu ‘alayhi wasallam) is such a fundamental truth, that is came to be looked upon as a criterion of truth in itself. This position is reflected in the way they deal with the phenomenon of Shi’i narrations that contradict one another. Abu Ja‘far al-Kulayni, in the introduction to al-Kafi, the most important of their four canonical hadith collections, expresses it in the following terms:

Know… that no one can distinguish narrations of the Possessors of Knowledge (the Imams) by his opinion; except according to the words of the Possessor of Knowledge: ‘Compare them to the Qur’an. Accept that which is in accordance with it, and reject that which contradicts it,’ and his words: ‘Abandon that which is in accordance with the people (the Ahl as- Sunnah), for truly, guidance lies in being different to them’. [al-Kafi  vol. 1 pp. 55-56 (Dar al-Adwa’, Beirut 1992)]

This particular perspective has persisted in the Shi‘i psyche over the centuries since Kulayni and his teacher Qummi, until it became, in the opinion of Khomeini and all other Shi‘i jurists, one of the two principal methods of juridical preference in cases of conflicting narrations. In light of the alarming frequency with which contradictions occur in the ahadith of the Shi‘ah (one of their four major hadith sources, al-Istibsar, is devoted to the phenomenon of contradiction) the importance of a principle of this nature is evident. We reproduce here from Khomeini’s works various Shi‘i narrations in which he and other Shi‘i mujtahids find justification for their view:

1. Hasan ibn Abil Jahm asked: If something is narrated from Abu ‘Abdillah (Imam Ja‘far), and something contrary to it is also narrated from him, which should we accept?

The Imam answered: Accept that which is in contradiction to the people, and avoid that which is accordance with them. [at-Ta‘adul wat-Tarjih p.80]

2. Abu ‘Abdillah said: Our Shi‘ah are those who submit to our command, who accept our words, and who act contrary to our enemies. Whoever is not like that is not of us. [Tahrir al-Wasilah p. 83, from al-Fusul al-Muhimmah by al-Hurr al-‘Amili p. 225]

3. ‘Ali ibn Asbat narrates that he asked Imam Rida: (What should I do in case) an incident occurs for which I am need of a juridical opinion, but nowhere in the city do I find anyone of your partisans (the Shi‘ah) whom I can ask?

He replied: Go to the (Sunni) faqih of the city and refer your case to him. Then take the opposite of whatever answer he gives you, for verily, therein lies the truth. [at-Ta‘adul wat-Tarjih p.82, from ‘Uyun Akhbar ar-Rida by Ibn Babawayh al-Qummi, vol. 1 p. 275]

It is on account of these and other similar narrations which the Shi‘ah claim to emanatefrom their infallible Imams that the mujtahids of the Ja‘fari madhhab were led to formulate the principle Khomeini expresses in these terms:

In cases of conflicting reports, contradiction of the Ahl as-Sunnah is a factor of preference … In fact, it is the most common and widespread factor of preference in all chapters of fiqh and upon the tongues of the fuqaha. [at-Ta‘adul wat-Tarjih p. 83]

There is no ambiguity with regard to the issue of contradicting the Ahl as- Sunnah being a factor of preference in the case of conflicting narrations. [at-Ta‘adul wat-Tarjih p. 84]

The factors of tarjih (preference) are limited to two: conforming to the Qur’an and the Sunnah, and contradicting the Ahl as-Sunnah. [at-Ta‘adul wat-Tarjih p. 84]

All of these quotations show a definite obsession with being different from the Ahl as- Sunnah. We therefore ask: If so much importance is attached to being different, to the point of it being regarded as the criterion of truth, why should there be such a noise and clamour for unity? Why should the Shi‘ah seek unity with people whose version of Islam they regard as the corruption of the Din of Muhammad (sallallahu ‘alayhi wasallam) wrought by the hands of his Companions? And even if the Shi‘ah do manage to create a semblance of such unity, how much goodwill and sincerity can be expected of them if one considers their particular perspective of the legacy which forms the basis of our faith and practice?

We have chosen Khomeini’s views as representative of Shi‘i opinion for a very special reason, and that is the fact that in the contemporary world it is he and his successors who are the most vociferous proponents of Sunni-Shi‘i unity, and who dismiss Sunni-Shi‘i differences as negligible. In more than one of his public addresses he takes to task those who attempt to create mischief amongst the Muslims by “misleading” them into believing that there are substantial differences between the Ahl as-Sunnah and the Shi‘ah. However, closer scrutiny of his jurisprudential works reveal that such condemnations are nothing but political rhetoric. When we remove the image he projects as Leader of the Revolution, we are left with merely another Shi‘i scholar imprisoned by the fundamentals of his faith. In his eyes, and likewise in the eyes of generations of Shi‘i scholars before him, the legacy of the Sunnah upon which their Sunni “brothers” base their practice of Islam is the product of the envious mischief and the disbelief of the Sahabah, who in the hope of destroying the cause of the Ahl al-Bayt distorted every teaching of the Nabi (sallallahu ‘alayhi wasallam) they could lay their hands upon. If this is how they regard the very basis upon which the foundations of our Deen rests, what remains to be said for unity?

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