Understanding Usul Al-Fiqh by Abu Tariq Hilal - Abu Ismael al-Beirawi

The Messenger of Allah (saw) died without appointing a specific person to succeed him (saw) as a Khaleefah. After the Sahabah (ra) met and deliberated, they decided to select Abu Bakr (ra) as the Khaleefah. All the Sahabah (ra), including Ali (ra), gave the Bay‟ah to Abu Bakr (ra). Before he died, Abu Bakr (ra) nominated Umar bin Al-Khattab (ra) to be his successor, after consulting with the people of Madinah. Umar (ra) became the Khaleefah; however, only after being given the Bay‟ah. On his deathbed, Umar (ra) nominated 6 people and suggested that the Khaleefah be chosen from among them.

Included in this list of nominees were Ali bin Abi Talib (ra) and Uthman bin al-Affan (ra). After Umar's death and his burial, the group which Umar had nominated gathered except for Talha who was in travel. It is reported that their meeting took place in Aisha‟s (ra) house, and Abdullah b. Umar was with them. They asked Abu Talha Al Ansari to shield them. Once they settled, Abdul-Rahman b. Awf said: "Who would take himself out of it (the Khilafah) and preside over the meeting on condition that he gives it to the best among you?" That is, who would renounce his right to the Khilafah, on condition that everyone makes him judge (arbitrator), to choose by himself a Khaleefah from amongst them as he deemed fit." Having said this, Abdul-Rahman b. Awf waited for an answer but no one answered him, so he went on saying: I myself renounce my right to the Khilafah. Upon this Uthman said: "I am the first to accept, for I heard the Messenger of Allah (saw) say:

“A trustee on earth is a trustee in the heveans,” Al-Zubayr and Sa‟ad also said: "We agree". Ali kept silent; so Abdul-Rahman asked him: "What do you say O Abul Hassan!" Ali replied: "Give me an Oath that you would prefer the truth and not to follow the whims and not to favour any member of your family and not neglect the interest of the Ummah". Abdul-Rahman replied: "Give me (all of you) your Oaths that you would stand with me against whoever changes, and that you would accept whoever I choose for you (on your behalf) and I give you my Oath that By Allah, I shall not favour a relative nor shall I neglect the interest of the Ummah." He took an Oath from them and gave them an Oath himself. Then he started to consult each one of them individually saying: "Apart from yourself, who do you think is worthy of this authority from among this group?" or words to that effect. Ali said: "Uthman." Uthman said: "Ali." Sa‟ad said: "Uthman," so did Al-Zubayr. Then Abdul-Rahman sought the opinion of the prominent figures in Madina, and asked all the Muslims in Madina one by one, men and women. He left no one without asking him about whom, he or she, would like to be the Khaleefah from amongst that group. A group of them chose Uthman and another group chose Ali.

Once Abdul-Rahman completed his fact finding mission and consulted all the people, men and women, he summoned the Muslims to the mosque and went up the Minbar (podium) with his sword on and his "Amama" (head-dress) which the Messenger of Allah (saw) gave him: He stood for a long while then spoke:

"O people! I have asked you openly and secretly about your Imam, and I found that you cannot place anyone on the same level as these two men: Ali and Uthman". Then he turned to Ali and said to him. "Come to me O Ali!" Ali stood and walked to the Minbar until he came underneath it. Abdul-Rahman took his hand and said: Would you give me your Bay‟ah according to the Book of Allah and the Sunnah of His Messenger and the (actions) of Abu Bakr and Umar?" Ali replied: By Allah no, but on my own exertion of that and my knowledge" - i.e. I would give you my Bay‟ah according to the Book of Allah and the Sunnah of His Messenger according to my own exertion of that and my knowledge of them. As for the actions of Abu Bakr and Umar, I do not adhere myself to them but exert my own opinion." Abdul-Rahman then released his hand and called: "Come to me O Uthman!" He took his hand as he stood on the spot where Ali stood earlier and said to him: "Would you give me your Bay‟ah according to the Book of Allah and the Sunnah of His Messenger as well as the actions of Abu Bakr and Umar?" Uthman replied, "By Allah yes. Upon this Abdul-Rahman looked up to the roof of the mosque with his hand clutching that of Uthman and said: "O Allah! Hear and witness; O Allah, I have put what was in my neck of that (matter) in the neck of Uthman". Then people rushed to give their Bay‟ah to Uthman until they overwhelmed him. Then Ali came pushing his way through to reach Uthman and gave him his Bay‟ah. Thus Bay‟ah was concluded to Uthman.

During Umar‟s (ra) Khilafah, he restricted the Sahabah (ra) from leaving Madinah, but in Uthman‟s (ra) Khilafah, the Sahabah (ra) were allowed to disperse from Madinah. There were some decisions made by Khaleefah Uthman (ra) that were debated by some of the Sahabah (ra). Some people from Egypt and other out-lying territories orchestrated by Abdullah bin Saba, advanced to Madinah in order to kill the Khaleefah Uthman (ra). Abdullah bin Saba was a Jew, who supposedly converted to Islam.

All of the Sahabah (ra), including Ali (ra), tried their best to negotiate with those people, but they were not inclined to listen to what was being presented by Ali (ra). The issue escalated and led to the assassination of Uthman (ra). Those who were guarding Uthman (ra) at the time of his assassination were extremely honourable people and included Ali‟s (ra) sons Hasan (ra) and Hussein (ra); however, the guards were eventually overwhelmed and Uthman (ra) was assassinated.

When Uthman b. Affan (ra) was killed by the rebels Madina remained without a Khaleefah for five days after him. Its Ameer during that time was Al-Ghafiqi b. Harb, one of the rebel's leaders. Those leaders requested Ali b. Abi Talib (ra) to take over the post of Khilafah. He used to avoid them, then the companions of the Messenger of Allah (saw) came to him and said: "This man - meaning Uthman - has been killed and people must have an Imam and nowadays we do not see anybody more worthy of the post than yourself, no one is of more precedence than you and no one is nearer than you to the Messenger of Allah". He said, "Do not put me forward for this post, for I would be a better assistant than an Ameer". So they said, "No, by Allah we should not do this until we give you our Bay‟ah". He said, "Then this has to take place in the mosque, for I do not wish for my Bay‟ah to be secret, nor to be taken except with the consent of the Muslims". Abdullah b. Abbas later commented: “I was apprehensive about him coming to the mosque for I feared that some people would stir up trouble, but he insisted to go to the mosque. When he entered the mosque, the Muhajireen and the Ansar followed him in and gave him their Bay‟ah. Then the people gave him also their Bay‟ah as well as the majority of the Muslims despite the absence of Banu Umayyah and some of the Sahabah.” During the era of Ali (ra), he had differences with some of the Sahabah (ra). Actually Ali (ra) found himself facing a variety of critical issues, such as his (ra) opinion that the organised conspiracy, which led to Uthman‟s (ra) assassination, was an organised internal disruption rather than a one-man effort. There were differences with Sahabah (ra) such as Talha, Zubair, and Aisha bint Abu Bakr (ra); Mu‟awiyyah (ra) and his persistence in having Uthman‟s (ra) killers handed over to him; some of Ali‟s (ra) so-called “supporters” began evoking claims that Ali (ra) was God incarnate.

From his side, Ali (ra) chose to handle all of these crises at once; he killed those who claimed that he was god; moved to Kufah to deal with Talha, Zubair and Aisha bint Abu Bakr (ra) issue; and was able to overcome this although it led to the killing of Talha and Zubair (ra); and then he (ra) moved towards Syria to deal with Mu‟awiyyah (ra). All of these activities caused Ali (ra) to be continuously engaged in one conflict or another. Finally the conflict ended in his (ra) assassination.

It is within this environment that the seeds of the Shi‟a were sown and started growing. In the beginning it started as a political movement working under the pretext of getting the Khilafah back to Ali (ra) and his descendants. Later on, it was given an intellectual context. The Shi‟a were divided into many groups. Some went to the extreme claiming that Ali (ra) was god. Others claimed that the Messengership was meant for Ali (ra) and not for Muhammad (saw). These two groups were not considered Muslims. Even the Shi‟a label these groups as non-Muslims. In addition to this, there were others like the Zaydis and the Jafaris who did not at all go to these extremes.

Some people presently generalise and label all of the Shi‟a as Non-Muslims. This generalisation is not at all correct, since not all of the Shi‟a believe that Ali (ra) deserved the Messengership or that Ali (ra) was god incarnate, or that the Qur‟an was changed and is imperfect. The Zaydis and the Jafaris cannot be labelled as non-Muslims since they do not subscribe to such Kufr beliefs. However, if an individual carries such beliefs or ideas then that individual deserves the label as being non-Muslim, whether he is Shi‟a or Sunni. Anyone who carries Kufr ideas and concepts even if he was born to Sunni parents will not be considered as Muslims.

Imam Zayd bin Ali (80 AH - 122 AH) was born in Madinah. His father Ali, son of Al-Hussein bin Ali bin Abi Talib the fourth Khaleefah, was one of the few descendants of Hussein that were spared at Karbalah. Imam Zayd‟s father was highly respected and highly educated, and rejected the extremism of those who claimed themselves to be Shi‟a.

It was in this environment that Imam Zayd was born. His father died when he was 14 years old and his elder brother Muhammad al-Baaqir took care of him. His early education was taken from his elder brother Muhammad al-Baaqir, who was considered at that time as a great scholar. He also studied with another great scholar, Abdullah bin Hasan bin Ali. Both Al Baaqir and Abdullah bin Hasan were teachers of many great scholars and Imams like Abu Hanifah and Imam Malik, who took Hadith from them. Zayd also studied under other Tabi‟een who were residing in Madinah.

Later on Imam Zayd moved to Basra where he met Waasil bin „Ataa, the founder of the Mu‟tazilah. He kept moving between Iraq and Hijaz seeking knowledge. Abu Hanifah once said about Imam Zayd, “I met with Zayd and I never saw in his generation a person more knowledgeable, as quick a thinker, or more eloquent than him. He was in a class by himself.” Imam Zayd had differences with Khaleefah Abdul Malik, and even rebelled against him. He went to Kufah where Shi‟a of Iraq joined him. 15,000 people gave him the Bay‟ah in a Masjid, but only about 400 of them stood with him when he faced the army of the Khaleefah. Imam Zayd felt that a military confrontation was the best way to deal with Khaleefah, and felt let down after his so-called supporters abandoned him in the same way that his supporters abandoned his grandfather Hussein.

Even though both Imam Hussein and Imam Zayd utilised military confrontation to correct the situation in the Islamic State at that time, it seems that what was needed to be established was a group that would work in the Ummah to educate it and serve as a safeguard for the Ummah, instead of rebelling against the Khaleefah without this preparation, which did not at all solve the problem but rather made matters more complicated. The stand by Imam Zayd and his few supporters against the army of the Khaleefah ended with his death. He was heard saying: “I am worried that I will be let down just like my grandfather Al Hussein was let down,” and in fact this was true.

Although he viewed Ali (ra) as deserving of the Khilafah, he also recognised the Khilafah of Abu Bakr, Umar, and Uthman (ra). He also believed that the Khulafa did not have to be predetermined by the texts, but that it was enough to be from Banu Hashim, and that the Khaleefah was not infallible. He did not document his Madhab, rather it was done afterwards.

His Fiqh was documented in Al Majmu‟, which was documented by his student Abu Khalid Amr ibn Khalid Waasifi. The Grand Majmu‟ or Al-Majmu‟ Al-Akbar is made up of two sections, Majmu‟ Al-Hadith and Majmu‟ Al-Fiqh.

After Imam Zayd‟s death, many students from his Madhab emerged, especially in Yemen. The most interesting thing about this Madhab is that they never closed the door of Ijtihad. This Madhab is very close to that of Abu Hanifah‟s in the areas of Mu‟amalat or transactions. Nowadays this Madhab is said to be the closest to the four popular Madhabs of Abu Hanifah, Malik, Shafi‟i and Hanbal. Imam Abu Zahrah, in his book History of the Islamic Schools of Thought (Taareekhul Madhabil Islamiyyah), said that there are two Zaydi Madhabs, the one before his death and the one that emerged after his death.

After the problems, which occurred with the Khaleefah Al Mansoor, the Zaydi Madhab became weak and other Shi‟a Imams started to influence it. Some of these Imams did not approve of the Khilafah of Abu Bakr (ra) and Umar (ra) and so there is an appearance that this was an inherent part of the Madhab. However, presently the Zaydis have gone back to Imam Zayd‟s adoptions. Two of these scholars who followed the early Madhab of Imam Zayd are Imam Shawkani and Imam Muhammad bin Isma‟eel As-Sana‟anee.

One of the most famous scholars of the Madhab of Imam Zayd is Imam Shawkani. Imam Shawkani died in 1250 AH in Yemen. His writings show that he was against Taqleed. They also show that he treated all Madhabs equally, including the Zaydis, and in the issues of the „Aqeedah he did not go against that of the Salaf at all. Imam Shawkani‟s books include Nayl al Awtaar in Hadith, Irshad ul-Fuhool in Usul and Fathul-Qadeer in Tafseer.

Imam Muhammad bin Isma‟eel as-Sana‟anee (1059 AH - 1182 AH) was born in Yemen and moved to Makkah, where he developed to be an extremely capable Mujtahid. He rejected Taqleed, and was severely challenged by those who refused the concept of Ijtihad; however, he held his ground and never paid attention to his objectors. One of his many books is Subul-us-Salaam, in Hadith.

Both Subul-us-Salaam and Nayl Awtaar are considered presently to be extremely essential for their contributions in the area of Fiqh and Hadith.

Though the Shi‟a Imamia is also called Jafariah, this does not mean that the sole source of the Shi‟a Fiqh is Imam Jafar. It is mixed with others. The Jafariah Madhab is composed of Fiqh from other people such as Qumi, Tousi and Qulani. Thus, it is very hard to verify what was reported by Imam Jafar. Among the Jafariah claims are:

A. The Imams were appointed by the Prophet (saw), namely Ali (ra) and his descendants. The twelve Imams are as follows:

1. Ali (ra).

2. Hasan ibn Ali (ra).

3. Hussein ibn Ali (ra).

4. Ali Zain-ul-aabideen.

5. Muhammed al-Baaqir.

6. Ja‟far as-Saadiq.

7. Musa al-Kazim.

8. Ali al-Rida.

9. Muhammad al-Jawad.

10. Ali al-Hadi.

11. Al Hasan al-Askaree.

12. Muhammad bin al-Hasan.

B. The Imams are infallible i.e. they cannot commit any sins.

C. Imams have qualities, which elevate them above the level of Prophets. In the words of Ayatollah Khomeini: “The Imam has an exalted position, an elevated rank and a creational viceregency (caliphate) to whose sovereignty and dominion all of the atoms of the universe yield and obey and, among the basic tenets of our Madhab is that the Imams have a position which cannot be attained by either an angel close or a commissioned Prophet. Furthermore, based on the narrations and Hadith which we have, the greatest Prophet and the Imams existed before this world as lights which Allah made to encircle His throne.”40

D. Tuqiyyah is allowed. Tuqiyyah states that a Muslim is allowed to hide whatever he believes in due to certain circumstances. The Jafaris claim that Imam Jafar said: “It (Tuqiyyah) is my Deen and the Deen of my forefathers” about Tuqiyyah.

E. Some of the Jafaris claim that the 12th Imam was born and was hidden in his early childhood. However, Al-Kulaynee, in his book Al Kafee, reports that the 12th Imam‟s father died before his birth. The pregnant period passed and the expecting mother realised that she was actually not pregnant, and so the 12th Imam was never born.

These are but a few of the opinions of those who claim to follow the Madhab of Imam Jafar. Let us now study his life to determine if such claims were actually from Imam Jafar.

Imam Jafar as Sadiq bin Muhammad al Baqr (80 AH to 148 AH) was born in Madinah and is the nephew of Imam Zayd and grandson of Zain Al-Aabideen. The Shi‟a considers Imam Jafar as the sixth Imam. His father Muhammad Al-Baaqir used to be approached by people like Sufyan Ath-Thawri, Sufyan bin Ayaynah and Abu Hanifah in their quest for knowledge. Al Baaqir highly respected Abu Bakr, Umar, and Uthman (ra), and he used to say: “He who does not recognise Abu Bakr and Umar is ignorant in the Sunnah.” In another occasion he told his student Jabir Al Ja‟fee: “O Jabir, I know that some people in Iraq claim that they like us, but they try to undermine Abu Bakr (ra) and Umar (ra) claiming that I instructed them to do so. Tell them that indeed, I denounce them for the sake of Allah, and if I were in charge, by Him in whose hands is the soul of Muhammad, I would slaughter them and shed their blood in order to get closer to Allah. May the intercession of Muhammad not cover me if I do not ask Allah to forgive both Abu Bakr and Umar and give them both His mercy. Allah‟s enemies are absent minded and neglectful of them.” Muhammad Al-Baaqir used to do Tafseer of the Qur‟an, report Hadith whether the reports came through Ahl-ul-Bayt or from the other Sahabah (ra) without distinction. He was actually married to the granddaughter of Abu Bakr As-Siddiq, and Imam Jafar was born from this marriage. This means that his mother‟s line ended with Abu Bakr (ra) while his father‟s ended with Ali bin Abi Talib (ra).

Imam Jafar grew up in Madinah where the Sahabah (ra), their traditions and works remained and where the Tabi‟een used to live. He used to stay close to his grandfather Zain ul-Aabideen, where the Tabi‟een would come to discuss issues of Islam with Zain. Therefore, Imam Jafar would take from both the Tabi‟een and from Ahl ul-Bayt. His mother was also the daughter of Qasim bin Muhammad bin Abu Bakr, one of the seven great Tabi‟een, whom people like Imam Malik used to study with. This shows that Imam Jafar had a wide and comprehensive understanding of Islam.

After the death of his father, he continued seeking knowledge. He used to study in depth, the opinions of different scholars, and after a long debate with Abu Hanifah, Abu Hanifah declared: “The most knowledgeable person is the one who is the most knowledgeable of their differences,” referring to Imam Jafar. Many scholars such as Imam Malik and Abu Hanifah used to sit and take reports from him.

Jafar witnessed at an early age, his uncle‟s move against the Umayyad Khaleefah. He realised how his followers had let him down. Therefore, he was able to develop a complete image about the people who were calling themselves the Shi‟a. Later on, in the Abbasid Khilafah, since they were also from Bani Hashim, it was expected that the situation would change for the better with Ahl ul-Bayt.

However, when some of Ahl ul-Bayt rebelled against the Abbasids, another massacre occurred and Imam Jafar witnessed another era of persecution. So we find him trying to keep away from the political life as much as possible, and he never claimed the Bay‟ah for himself. However, this does not mean that he did not have nor develop political opinions. In his era, the extremist opinions of Shi‟a appeared. Such ideas included that the Sahabah (ra) being Kuffar, the slandering of Abu Bakr and Umar (ra), and claims that such ideas were from Jafar and Imam Al Baaqir. Also in his era, the Khattabiyyah, another deviant group, emerged.

A Persian named Abul Khattab, who claimed Prophethood, developed the Khattabiyyah movement. Imam Jafar took the responsibility of clearing the mess being purported by the Khattabiyyah, which caused him to suffer a lot in this cause. For example, it was reported that the Khaleefah Al Mansoor summoned Imam Jafar to him, based on reports that Imam Jafar was collecting Zakah on his own. He later found that this claim was false and was probably spread by the enemies of Imam Jafar.

Beside his struggle to clean up the mess of the deviant people, Imam Jafar also made great contributions to Fiqh and Hadith. The Fiqh of Imam Jafar is considered to be one of the Fiqh from the Sunnah. However, there are some people who claim themselves to be Jafaris try to present a different picture of Imam Jafar.

Al Kulaynee, in his book Al Kafee, claims that Imam Jafar has a special „Ilm which was carried from the well of the Prophet (saw) to Ali (ra), and then to other Imams, arriving to Imam Jafar, who then transferred it to the remaining Jafari Imams. This special knowledge Al Kulaynee called Al Jafr. This Jafr gives to the Imam who carries or has it, knowledge of the Ghayb or the unsensed, and it seems as if this claim actually came from Al Khattabiyyah.

Such claims are not at all expected or suspected to be from the honourable and trustworthy Imam Jafar, especially when we realise that the reporter, Al Kulaynee, purports claims that the Qur‟an was tampered with. It is clear that these heretic claims attributed to Imam Jafar and Imam Zayd are false, and that these honourable and trustworthy Imams would not have said such things.

Finally, the Muslim Ummah has witnessed turmoil throughout its history. We now have to come to realise that blaming each other for the division of the Ummah is not the answer to our current problems. The Muslim Ummah has to agree on the issues of Islam that are undebatable and it has to realise that there are issues where it is natural for differences to arise, and so room has to be given for those differences.

The Ummah has to agree that there is no God but Allah (swt) and that Muhammad (saw) is His last and final Messenger; that no revelation was delivered to anyone else after him; that he did not hide any aspect of the Message nor did he give parts of it to special elites.

The Muslim Ummah must realise that it must be ruled by Islam, and that the Islamic State should adhere to the texts of Islam, i.e. Qur‟an and Sunnah, and that it must deal with everyone from Islamic point of view, regardless of race, colour, sex, sect, or religion.

The Islamic State and the Khaleefah is not a theocracy, the Khaleefah is not God‟s representative on earth and is not infallible. As infallibility is a prerequisite for Prophethood, it cannot be imagined that the Prophet (saw) could make a mistake in delivering the Message. The Khaleefah does not need a prerequisite of infallibility since his role is to only implement Islam, which was already completed and sealed with the death of the Prophet (saw), without any room for deletion or addition.

The Messenger of Allah (saw) has informed us that the Imam (Khaleefah) may make a mistake and he informed that the Imam may do things which people hate and curse him for, like oppression, disobedience and other things. He informed us that open Kufr may appear from the Imam.

It is reported on the authority of Abu Hurayra that the Messenger of Allah (saw) said:

“Verily the Imam is but a shield from behind which the people fight and by which they protect themselves. So if he ordered to observe the Taqwa of Allah and he was just he would have equal to these (actions) in reward, and if ordered other than that it would be against him equal to that.” (Muslim)

This means that it is possible that the Imam may command with other than the fear of Allah. It is also narrated from „Abdullah who said: The Messenger of Allah (saw) said:

“There would be after me selfishness and matters which you hate.‟ They said: „O Messenger of Allah, how do you order the one of us who would witness that?‟ He (saw) said „You should offer the right due upon you, and you ask Allah the thing which is due to you.” (Muslim)

It is narrated from „Auf b. Maalik that the Messenger of Allah (saw) said:

“The best of your Imams are those whom you love and they love you and who pray for you and you pray for them, and the worst of your Imams are those whom you hate and they hate you and you curse them and they curse you.‟ We asked: „O Messenger of Allah, shall we not then declare war on them?‟ He said: „No, as long as they establish prayer among you. And if you see something which you hate in your rulers then hate the action and do not withdraw your allegiance of obedience.” (Muslim)

It is narrated on the authority of Junada b. abi Umayyah who said: “We went to „Ubadah b. as-Samit when he was sick and we said: May Allah (swt) guide you. Inform us of a Hadith from the Messenger of Allah (saw) so Allah may benefit you from it.

“He said, the Messenger of Allah (saw) called upon us and we gave him the Bay‟ah, and he said of that which he had taken from us, that we should give him the pledge to listen and obey, in what we like and dislike, in our hardship and ease, and that we should not dispute the authority of its people unless we saw open Kufr upon which we had a proof from Allah.” (Bukhari)

These Ahadith clearly make the point that it is possible for the Imam to make a mistake, forget or disobey. Despite this, the Messenger of Allah (saw) has ordered the obedience to him as long as he governed by Islam and no open Kufr occurred from him and he did not command with sin. So, is there anything to be said after the news of the Messenger of Allah (saw) about the Khulafa‟a that there would be from them things which Muslims deny despite the fact that he commanded Muslims to obey them? Is it possible after this to say that the Khaleefah has to be infallible and he has not to be like other human beings? It is clear that the Khilafah State is a human state and not a theocratic state.