FIQH JAFARI, SHIA ISLAMIC FIQH
In this paper we explore the development of the Fiqh Imamiyya, also known as Shi'a and Ithna Ashari. First, we will see how the sect of Imamiyya took shape in history. We will then look at the sources of the Imamiyya Fiqh. We will then go on to look at the institutions in Najaf and Qum which are involved in the learning and teaching of that Fiqh. There are some specific characteristics of the Shi'a fiqh which are not found in its Sunni counterpart. To explain that we quote from Ahmad Kazemi Moussavi(Religious Authority in Shi'Ite Islam: From the Office of Mufti to the Institution of Marja):
Shi’ite law appeared at the outset of the second century A.H., and developed into a distinctive legal system throughout the periods after the 4th/10th century. The periodic changes in the evolution of Shi’ite law have been closely tied to the socio-religious currents that have characterized the various stages of the long history of the Ithna ash’ari community. (p.7)
Like its Sunni counterpart, Shi’ite law consists of the legal, ritual and moral norms based on the Qur’an and the Tradition of the Prophet. However, in Shi’ite law, the expounders of the Shari’a enjoyed some kind of charismatic authority in the position of Imam or his deputy (na’ib al-imam, i.e., the ulema in its common sense) which gave a unique character to the Shi’a learned body quite unknown in Sunni Islam. (p.7)
The scholars who centered around the fifth and the sixth Imams formed the first learned body with Shi’i tendency. Some prominent members of this body such as Aban b. Taghlib (d.150/767) were authorized by Imam Sadiq to give fatwa and to provide answers to legal questions. This authorization led to the legitimization of the practice of ifta (giving legal opinion) and ijtehad (legal judgement) exercised by the qualified ulama (even in the presence of the Imam). The office of the Shi’ite mufti can then be traced to the time of Imam Baqir whereas that of mujtahid appears in a much later period. (p.47, quoting Rijal of Najashi)
The Imam Zayn al-Abideen Ali b. Husayn (d.94/712) is reported to have praised the famous Sa’id b. al-Musayyab (d.91/709) as the most learned faqeeh of his time. (p.53, quoting Shihabi)
The first special deputy of the Twelfth Imam was Abu Amr Uthman b. Sa’eed (d. about 265/878) who had worked as an agent for the tenth and eleventh Imams. The name of Uthman b. Sa’eed was sometimes followed by the title of al-Samman (cooking oil merchant) that apparently indicates his occupation. But Shaykh Toosi explained that this title was used to cover up his real task as the special deputy to the Imam. However, he was not reckoned as an Alim in the Shi’ite sources; rather, he enjoyed the support of the ulama of the twelver circle who trusted him as the true liaison between the Imam and his community. The very adjective ‘praiseworthy’ (al-mamdooh) used by the contemporary ulama demonstrates that his status was confirmed by them.
Uthman was succeeded by his son Muhammad who was also designated by the Eleventh Imam as co-agent with his father. Muhammad has a record of studying fiqh and writing one or two books. Although he could have hardly been considered a scholar or jurist, he expanded the scope of his job and, as a result, the business shop of Uthman turned into an office of deputyship (dar al-niyaba). The enhanced prestige of deputyship was due to an increased number of signed decrees and to Muhammad’s juridical and administrative ability, as the contents of tawqiat indicate. Muhammad b. Uthman delivered the Imam’s decrees more than all other special deputies during his almost 40 years of being the single deputy of the Imam. It does not, however, mean that he (or any other special deputies) enjoyed a unique position as the principle bearers of charisma higher than the contemporary ulama. Tusi is explicit in telling us that the authority of Muhammad’s successor was confirmed in !
the presence of a Shi’ite learned body.(pp. 85-59)
The most famous signed decree delivered by Muhammad b. Uthman is the one addressed to Ishaq b. Yaqub, an unknown Shi’I who raised several questions including the problem of who is the authority during the absence of the Imam from his community. The Imam answered: “In the case of new events, you should turn for guidance to those who relate our traditions , because they are my proof to you, as I am God’s proof to them.” Three important Shi’ite offices have derived their legitimacy from this tradition: the position of transmitter of the traditions (rawi), the authority of proof (hujja), and the concept of reference (irja’u: to turn to) which led up to the institution of marja’iyya in the following periods. The position of deputy (na’ib) was not specified in this tradition because it was included in the office of ‘the transmitters of our traditions.’(p.59)
The Shi'a or Imamiyyah Fiqh is basically the fiqh of the Ahlul-Bayt. The fiqh of Ahlul-Bayt has a special place in the study of the subject by the majority Sunni Muslim scholars as well. That fact has been highlighted by Professor Muhammad al-Muntasir al-Kitani in his study known as M'ujam Fiqh Salaf – Itra was Sahaba wa Tabi'een. Professor Kitani has this to say on that subject:
“Fiqh Itra is different than that of the Sahaba and the Tabi'een. It is highlighted by (the rules about) parents, pregnancy, birth and upbringing (of children), and the nutrition of children, their custody and training both boys and girls, and their education upto the time they grow up and become good members of the society for themselves as well as collectively for the family and the society.
In this category, there is the fiqh of Fatima Zahra the daughter of the Prophet, and her rulings can be counted on one’s fingers, and of Ameer-ul-Mo’mineen Ali bin Abi Talib and his fiqh requires huge volumes (to document), and Ameer-ul-Mo’mineen al-Hasan bin Ali, and Imam Husayn bin Ali, and Imam Muhammad Ibn Hanafiyya bin Ali bin Abi Talib, and Imam Abdullah al-Kamil bin Hasan al-Muthanna bin Hasan bin Ali bin Abi Talib, and Imam Zayn al-Abideen bin Husayn bin Ali, and Imam Muhammad al-Baqir bin Zayn al-Abideen, and Imam J'afar as-Sadiq bin Muhamamd al-Baqir, and Abdullah bin Muhammad al-Hanafiyya, and Hasan bin Muhammad al-Hanafiyya, may Allah be pleased with them all. With the Fiqh of Itra one gets knowledge and guidance, and security from going astray, and guidance from the Book of Allah until one enters the Paradise.”
It is quite clear that Professor Kitani’s definition of Ahlul-Bayt or the Itra is slightly different from the way the Imamiyya or the Shi'a have looked at those august personalities. According to the Shi'a, the Ahlul-Bayt consist of fourteen persons, the Prophet of Islam, his daughter, Fatima Zahra, and the twelve Imams (may our salams and Allah’s peace be unto them all). Professor Kitani counts only up to the sixth Imam and then he includes some other members of the Family of the Prophet and of Imam Ali.
Having defined the fiqh of Ahlul-Bayt, Professor Kitani then goes on to explain the glory of Ahlul-Bayt, as follows:
“Indeed did the Prophet say about this subject in his speech at Arafat during the last Hajj before one hundred thousand Sahaba or more – Jabir narrates – ‘I saw the Prophet riding his camel named al-Qaswa and addressing (the people) and I heard him say: I am leaving among you something which, if you hold on to, you will never go wrong. (They are) the Book of Allah and my Ahlul-Bayt. And Ibn Arqam said: The Prophet (pbh) said – I am leaving among you (something), if you hold on to that you shall never go wrong after me, one is greater than the other; and that is the Book of Allah which is extended like a rope between the heaven and the earth, and my Itra, the Ahlul-Bayt; they will not separate from each other until they meet up with me at the Pond, so (be careful) and look what you are going to do with them.’ “
This is the famous Hadeeth of THAQALAYN, quoted in the five books of the SAHAH (every book except BUKHARI), as well as by authors such as Ibn S'ad.
 Al-Kitani, p. 4-5
 ibid, p.5