Maisonneuve & Larose

Rationalism and Traditionalism in Sh' Jurisprudence: A Preliminary Survey

Author(s): Hossein Modarressi
Source: Studia Islamica, No. 59 (1984), pp. 141-158
Published by: Maisonneuve & Larose
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RATIONALISMAND TRADITIONALISM
IN SHI'I JURISPRUDENCE:
A PRELIMINARYSURVEY

I. The sourcesof Shi't law.

As is elaboratedin the workson Shi'l l al-fiqh,the sources

of Shi't law are the Qur'an, Tradition,us.
consensusof the Shl't
jurists (ijmd') and reason ('aql). (1)
The Qur'an, in its apparent literal sense, has shaped the
spiritand foundationof Shi'i law.
The Tradition,i.e. the statements,deeds and tacit consent
of the Prophetor the Imams, must be handed down by reliable
narrators. In respect to this reliability,the doctrinalviews
of the transmittersare considered irrelevant. A tradition
handed down by a reliable non-Shi'tis viewed as sound and
acceptablejust as one transmittedby a veraciousShi't.
Ijmd', i.e. the unanimityof the views of all Shi'i juristson a
certain legal question, is not a source on its own but it can
become a means throughwhich the opinions of the Imams
may be discovered. This functionof ijmd' has been explained

(1) It should be noted that these are the sources of the predominant Ugsilt
school of Shl'f law. The AkhbArt school resorted only to Tradition. The
earliest legal work in which the four sources above are mentioned with the same
order is Ibn Idris al-HIilli, al-Sard'ir (Qum, 1390q), p. 3. The early Shi'l
works did not usually mention reason as a source of law. See furtherMuhammad us.ll
Rid.Aal-Muzaffar,Usil al-flqh(Najaf, 1967), II, p. 122.

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142 HOSSEIN MODARRESSI

in various ways. (1) The most popular among these in con-

temporaryShi'i law holds that since ijmd' is the unanimity
of the views of 'all' Shi'I scholars, it naturally includes the
views of those scholars who lived in the period quite close
to the periodof the Imams. Many of these were close compa-
nions of the Imams and quite knowledgeableof theiropinions.
The consensusof these very early jurists,most of whom were
absolute followersof the Imams, normallydemonstratesthe
view of the Imams.
By 'reason' as a source(2) forShi't law are meant categorical
judgments drawn from both pure and practical reason. A
clear instance is the judgmentof practical reason that justice
is good and injusticeis evil. (3) In Shl'i ugsl al-fiqhthereis a
principle which states that whatever is ordered by reason,
is also orderedby religion(kull md bih al-'aql hakam bih
al-shar'). In accordance with thish.akam
principle, which is known as
the'ruleofcorrelation'(qd'idat al-muldzama),religiousrulesmay
be inferredfromthe sole verdictofreason. (4) The correlation
between the obligatorinessof an act and the obligatoriness
of its prerequisites(muqaddamatal-wajib), or betweenprescri-
bing somethingand prohibitingits opposite (mas'alat al-didd),
or, the impossibilityof combiningcommand and prohibition
in a single case froma single standpoint(ijlimd' al-amr wa'l-
nahy), are all rational precepts in the methodologyof Shi'i

(1) See al-Muzaffar,II, p. 107.

(2) As will be explained later reason, in Shi'i jurisprudence, is also employed
as the means for thinking,in which sense it simply means the rational argument.
(3) See al-Muhaqqiq al-Hilli, al-Mu'tabar (Tehran, 1318q), p. 6; al-Shahid
al-Awwal, Dhikrd al-Sht'a (Tehran, 1271q), p. 5 idem, al-Qawd'id wa'l-fawd'id
(Tehran, 1308q), p. 25; Miqdid al-Suyfirl,al-Tanqih al-rd'i' (MS 1725, Mar'ashi
Library, Qum), 2b-3a; SAhib al-Maddrik, Hiddyat al-tdlibtn (MS 4641, Majlts
Library, Tehran), fols. 2b-3a; al-Qatift,Kashf al-fa:d'id (MS 81/2, ImAmJum'a-yi
Khu't, Majlis Library, Tehran), p. 130.
(4) Muhammad BAqir al-Sadr maintains that 'reason' is a potential rather than
an acutal source for ShI't law. He says that although according to the metho-
dology of Sht'I law reason can, on its own, discover an injunction and guide one
toward a certain religous precept, this has never been actualized in practice and all
religious commands which can be discovered throughcategorical verdicts derived
fromabstract thought (pure reason) are to be found in the Qur'An and Tradition
(Muhammad BAqir al-Sadr, al-Fatdwd al-wddiha (Beirut, 1978), I, p. 98.

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 RATIONALISM AND TRADITIONALISM IN SHieI JURISPRUDENCE 143
law and sources in the juridical effortsto discoverlegal rules,
which are based on pure reason.
The inferenceof legal preceptfromthese foursources,which
are in some cases contradictory,is done througha kind of
logical reasoningwhichin Islamic terminologyis called ijlihdd.
Accordingto Shi'i teachings,it is always possibleforscholars
to practisethis kind of rationalargumentin Islamic law, while
Sunnis restrictit to some scholars of the early centuriesof
Islam. In confrontingany legal problem,every Shl'i jurist
must personallyinvestigatethose legal sourcesto take his own
decision upon it. Imitation of the opinion of a mujiahid,
however great he is, by another mujtahidin legal mattersis
unlawful. (1)
The above mentionedmental exertionfordiscoveryof legal
normsfollowparticularrules which are explained by a special
branch of scholarshipknown as usdilal-fiqh. This discipline
is a collectionof generalrules and regulationson how to derive
positive preceptsfromthe sources. Some of these rules and
principleshave been borrowedfromotherdisciplineslike logic,
philosophy,theologyand philology.

II. Main workson Shl't ups'lal-fiqh.

In the early periods of Islam, Shi'i scholars wrote treatises

on some topics of which are mentionedin the
uisil al-fiqh,
sources.(1) But the oldest extant work in this context of
Shi'l scholars is al-Tadhkira l al-fiqhby al-Shaykh al-
Mufid, Muhammad b. Muhammad bi-us.b. al-Nu'min al-Baghdadi

(1) All above-mentioned principles are according to UsUiltschool of Sht't law.

The Akhbdrtsrejected ijtihdd and prohibited the practice of rational argument in
law. There are some objections to the practice of ijtihdd in the traditions from
the Imdms and in early ShV'1works, too. Most of these, however, referto the
SunnI version of ijtihddwhich includes qiyds and istihsdn.
(2) See IHasan al-Sadr. Ta'sts al-Sht'a li-funan al-Isldm (Baghdad, 1951),
pp. 310-12.

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144 HOSSEIN MODARRESSI

(d. 413/1022),a summaryof which is included by al-Kar~jaki

(d. 449/1057-8)in his bookKanz al-fawd'id.(1)
Next, there is a relativelyvoluminouswork on this subject
by al-Sharifal-Murtafda,'Ali b. al-Husayn al-Misawi (d. 436/
1044), entitledal-Dhari'a ild ustdlal-shari'a.(2) The book of
b.
Shaykhal-Ta'ifa,Muhammad al-Hasan al-TUsi(d. 460/1067),
'Uddal al-usdl(3) is the most famous work on al-fiqhof
early periods. It was a text-bookin Shi'l centers of learning
us.dl
for a long time. Anotherrather old source is the relevant
chapterofal-Ghunyaby Ibn Zahra (d. 585/1189-90).(4)
K. al-Masddir fi usil al-fiqhbyal-I.alabi
Sadid al-Din Mahmfidal-
IHimmasi,the Shl'i theologianand scholar of the second half
of the 6th/12thcenturyis not extant,(5) but some paragraphs
of it are quoted in Ibn Idris's al-Sard'ir.(6) Next, the works
of al-Muhaqqiq Ja'farb. al-Hilli (d. 676/1277)suchas
al-I.Hasan
Ma'drij al-wupdl,and then those of al-'Allama I.asan b. Yfisuf
b. al-Mutahharal-IIilli (d. 726/1325)such as Tahdhibal-usdil,
Mabddi' al-wu and Nihdyal al-wupsl contributedto the
evolutionof this
s.l discipline.
Followingthis age, many commentaries(sharh) and annota-
tions appeared on the works of al-'All~ma, some of
are listed in Agha Buzurg's al-Dhari'a. (7)
which(h.dshiya) Two of the
most famousof these are the commentariesknownas al-Diy'a
and al-'Amidi(8) whichhad a notable influenceon the develop-

(1) Al-KarAjaki, Kanz al fawd'id (Tabriz, 1322q), pp. 186-94. See also
Brunschvig, "Les usil al-fiqh Imamites a leur stade ancien (xe et xie sibcles)"
in Le Sht'isme Imamate (Paris, 1970), pp. 201ff.
(2) Edited in Tehran, 1346/8 sh(1967/9) in two volumes. Al-MurtadA had
writtenindependent treatises on almost all the topics of upsdlal-fiqh(see his intro-
duction to al-Dhari'a, I, p. 2). He also discussed the usl topic of akhbdral-dhdd
in his al-Dhakhtra,formallya work of kaldm theology (see al-Tfst, 'Uddat al-usidl
(Tehran, 1314q), pp. 34-7).
(3) Edited in Tehran, 1314q and in Bombay, 1318q.
(4) Edited in the collectionofal-Jawdmi'al-fiqhiyya(Tehran, 1276q), pp. 523-49.
(5) AqhA Buzurg al-Tihrdnt,al-Dhart'a ild tasdntfal-Sht'a (Najaf and Tehran,
1353-98q), XXI, p. 95.
(6) Ibn Idris pp. 409-10.
al-.Hilli,
(7) AghABuzurg, VI, pp. 54-5; XIII, pp. 165-70; XIV, pp. 53-4.
(8) That is Munyat al-labtb by DiyA' al-Din 'Abd AllAhb. Majd al-Din Muham-
mad al-A'raji al-IHusaynt,and al-Tahdhtb by 'Amid al-Din 'Abd al-Muttalib
Sharh.

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 RATIONALISM AND TRADITIONALISM IN SHI I JURISPRUDENCE 145
ment of usiil al-fiqh. Al-Shahid al-Awwal, Shams al-DIn
Muhammad b. Makki al-'AmilI (d. 786/1384)assembled these
two commentaries,togetherwith some usefulnotes by himself,
in a volume entitledJami' al-bayn.(1)
b. Zayn al-Din al-'AmilI(d. 1011/1602)paved the way
I.asan
for concentrateddiscussions on ugsl al-fiqhby composing a
systematicand well-arrangedtext as an introductionto his
legal work Ma'dlim al-din. Thereafter,numerous commen-
taries and annotationswere composed on this text, which has
been a text-book in ShI'i centers of learningsince the 1lth/
17th century.
During the llth/17th century,the most significantusdli
views were put forward by Sulatn al-'Ulama', IHusayn b.
Raft' al-DIn Muhammad al-Mar'ashi al-Mazandarant(d. 1064/
1653-4), one of the authors of the commentariesto Ma'clim.
Zubda by Baha' al-Din Muhammad al-'AmilI (d. 1030/1621)
and Wdfiyaby 'Abd Allah b. Muhammad al-Tfiun(d. 1071/
1660-1) are among the best knownusuli text of this century.
In the 12th/18thcentury,theAkhbarischoolwhichrepudiated
the disciplineof ugsl al-fiqh,became predominantand inhibited
its furtherdevelopment. It was, however,revived with the
appearance of a prominentscholarin the last thirdof the same
century,MuhammadBaqir b. MuhammadAkmal al-Bihbahant,
known as al-Wahid (d. 1205/1791),who strove vigorouslyto
combat the influenceof Akhbarism and to propagate u* l
al-fiqh. His students also devoted themselvesto the same
cause. Works such as Qaw nin by Abu'l-Qasim b. HIasan
al-Gilant, known as al-Muhaqqiq al-Qummi (d. 1231/1816),
Fugsl by MulhammadH.usaynb. MuhammadRahIm al-Isfahant
(d. 1250-4/1834-9),Hidgyal al-mustarshidinby Muhammad
Taqi b. Muhammad Rahlm al-Isfahant(d. 1248/1833),Maftdth
by Muhammad b. 'All al-Karbal'4 known as
al-Mujahid (d. 1242/1827) and Dawdbit by Ibrahimb. Muham-
al-Tab.taba'i,

b. Majd al-Din Muhammad al-A'raji al-Husaynt. These two brothers were the
nephews of al-'AllAma (Ibn al-Mutahhar), and both lived in the middle of the
8th/14thcentury.
(1) AghABuzurg, V, pp. 43-4.

10

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146 HOSSEIN MODARRESSI

mad Baqir al-Qazwini(d. 1262/1846),all of whichwere written

by the pupils and followersof al-Bihbahant's school, were
instrumentalin the progressand the spread of Usdilldoctrine.
Al-Shaykh Murtad;aal-Ansarl, the great scholar and legal
theoretician(d. 1281/1864),systematicallyrevised and recons-
tructedthe methodologyof Shi'l law, and extendedthe horizons
and imensionsof this discipline. The collectionof his treatises
or uil al-fiqh,entitledal-Rasd'il or Fard'id al-usil is still used
as a text-bookin traditionalacademiesof ShI'i law.

In the school of al-Shaykhal-Ansarlwhichhas continuedup

to the present date, the principlesof al-fiqhhave been
to
continuouslysubjected scrupulous and
ups.l
minute examination
by his disciples and followers. As a result of the emergence
of great scholars such as Muhammad Kazim al-Khur~sani
(d. 1329/1911)author of Kifdyal Muhammad 1Husayn
al-Na'Ini (d. 1355/1936),Diya' al-Din
al-us.l,
al-'Araqi (d. 1361/1948)
authorof Maqdldl and MuhammadHusayn al-IsfahanI
al-usi.l, author of Nihayal al-dirdya,and
al-Kumpini (d. 1361/1947)
throughtheir incisive intellectualefforts,the methodologyof
Shl'i law is now the most elaborate in Islamic scholarship,and
is still subject to discussionsand open to furtherdevelopment,
changes and perfection.

III. Conflictbetweenthe two tendenciesin Shl'i jurisprudence.

It can be clearly seen fromreligioustraditionsthat Shl'i

Imams had persistently urgedtheirfollowersto reason and use
their minds. In the case of discussionson Kaldm theology
theypraisedand encouragedShl'ftheologiansof theirtimes.(1)
In the case of legal problems,the Imams stated explicitlythat
theirown duties lay in explaininggeneralrules and principles;

(1) See al-Kashshl, Ikhtisdrma'rifatal-rijdl, ed. Hasan al-Mustafawi (Meshed,

1348 sh), pp. 268, 278, 484-6, 489-90, 538, 542; al-Kulaynt, al-Kdft, ed. 'A. A. al-
GhaffArt (Tehran, 1377-9q), I, pp. 169-74; al-Muftd,Tashth al-i'tiqdd,ed. 'A. WA'iz
CharandAb! (Tabriz, 1364q), pp. 171-2; al-QuhpA't, Majma' al-rijdl, ed. D. al-
'AllAma (IsfahAn,1387q), VI, pp. 223-30, 293-307.

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 RATIONALISM AND TRADITIONALISM IN SHI I JURISPRUDENCE 147
whereas inferencesin details and minor precepts for actual
cases were leftto the learned followersof the Imams. (1) The
Imams sometimes also explained in some points whenever
faced by questions fromtheirfollowersthat the correctreplies
to theirquestionscould be graspedand derivedfromthe general
Islamic legal principles.(2) On some occasions, the ImAms
themselvesfollowedwhat they advised as the correctmethod
of reasoningand thus instructedtheir followerson the proper
procedureforinferenceof legal precepts.(3)
Manyofthe Imams' companions,whowerethe firstgeneration
of the ShVf1 jurists, were, at the same time, eminentkaldm
theologians(4) and held significantopinionson both legal and
theological subjects, some of which have been quoted in the
sources. Many other Shfl's who gatheredaround the Imams
restrictedthemselves to the transmissionof traditions and
refrainedfromtheologicaldebates. They did not look favou-
rably upon the Shf'Itheologians.(5) The theologianswho were
appreciatedand favouredby the Imams, stronglyresentedthe
reproachesdirectedagainst themby the traditionalists, and the
Imams consoled the accused (6) by saying that they should
tolerate and act moderately towards their adversaries since
the latter'scapacity forunderstandingsubtlepointsand minute
nuances was extremelylimited.(7) Some of the traditionalists

(1) "'AlaynA ilqA' ilaykum wa 'alaykum al-tafrt'"(we must give you the
principles and you haveal-uglto derive branches): al-Jdmi' (the fragment
al-Baznt.,
inserted in Ibn Idris al-Ijillf's al-Sard'ir), p. 477; al-Fayod al-KAshAnt,
al-mubtn,ed. J. Muhaddith Urmawt (Tehran, 1390q), p. 7; IHurral-'Amilt,al-.aqq Wasd'il
al-Sht'a, ed. 'A. al-RabbAnl al-ShirAziand M. al-RAzi (Tehran, 1375-89q), XVIII,
p. 41.
(2) See for instance al-Kulaynt, III, p. 33; al-Ttfst, Tahdhib al-ahkdm, ed.
H. al-Mfsawl al-KharsAn (Najaf, 1958-62), I, p. 363; idem, al-Istibsdr,ed. H. M. al-
KharsAn (Najaf, 1375-6q), I, pp. 77-8; Ijurr al-'Amill, I, p. 327; Jdmi' ahddtth
al-Sht'a, vol. I (2nd edition, Qum, 1399q), pp. 116-18.
(3) See forinstance al-Kulaynt, III, pp. 83-8; al-'Amill, II, pp. 538-9, 542,
I.urr
546, 547-8.
(4) See lqbAl, Khdniddn-i Nawbakhtt(Tehran, 1345sh), pp. 75-84.
(5) See al-Kashsht, pp. 279, 487-8, 496, 498-9 (for instance). See also Ibn
BAbawayh, K. al-Tawhtd,ed. H. Al-Husaynt al-TihrAnt(Tehran, 1387q), pp. 458-60;
Ibn TAwfs,Kashf al-mahajja (Najaf, 1950), pp. 18-19; IHurral-'Amill, XI, pp. 457-9.
(6) See al-Kashshl, pp. 498-9.
(7) Ibid., p. 488.

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148 HOSSEIN MODARRESSI

of Qum too squabbled with theologians,(1) fabricatedtradi-

tionsin condemnationof the lattersand attributedthemto the
authorityof the Imams, (2) and wrote books in this vein. (3)
On the other hand, the Imams recommendedtheir followers
to referto theologiansand read their books.(4) They even
encouraged the people of Qum to honour and respect Shi'1
theologians'in spite of the fact that the traditionalistsof their
town were hostile to them'. (5)
As mentionedalready,the inferenceof legal preceptsin Shf'l
law is fundamentallybased on logical analysis and reasoning
withinthe framework of Qur'anic texts and Tradition. Ratio-
nal argumentis accepted on the basis of Aristoteliandeduction,
whichbringscertaintyaccordingto the principlesofthat logical
system. The kind of analogical reasoningwhich is entitled
qiyds in Islamic jurisprudencewas rejected by the Shl'a from
the time it came into Islamic law, in the 2nd/8thcentury,(6)
because it leads only to a probable cause fora precept,not to
the certainone. Some cases of qiydsin which the real cause
of a preceptis foundare accepted in Shi'i law. (7) In the first
centuries,the traditionalistswho were opposed to any kind of
rationalargumentheld that thismode of arrivingat categorical
judgmentsamounted to qiyds and was thereforeunlawful.(8)
Some later scholarscalled it permissibleqiyds,(9) while in fact

(1) Ibid., p. 489 (see also pp. 483, 506); Muhammad al-Ardabilt,Jdmi' al-ruwdt
(Tehran, 1331 sh), I, p. 459, II, p. 357; Abf 'Alt, Muntahd al-maqdl (Tehran,
1300q), p. 28.
(2) Al-Kashshi, p. 497. For examples of these traditionssee the same source,
pp. 491-6, 540-4: al-Barqt, K. al-Rijdl, ed. J. MulhaddithUrmaw? (Tehran, 1342 sh),
p. 35; al-Bazanti, p. 478.
(3) For example K. Mathdlib Hishdm wa Ydnus by Sa'd b. 'Abd Allah al-
Ash'art, mentioned in al-NajAshP'sK. al-Rijdl (Tehran, n.d.), p. 134.
(4) Al-Kashshl, pp. 483-5, 506; al-NajAshl, pp. 346-8.
(5) Al-Kashshl, p. 489.
(6) Ibn lHazm, al-lhkdm ft al-ahkdm,ed. A. M. ShAkir (Cairo, 1345-8q),
VII, p. 177; idem, Mulakhkhasus.ll al-qiyds, ed. S. al-AfghAnt(Damascus, 1960),
ibl.dl
p. 5.
(7) Al-KarakI, Tartq istinbdtal-ahkdm,ed. 'A. al-Fadli (Najaf, 1972), p. 17.
(8) Ibid., because of the same interpretation,later AkhbrtIs accused Usilts
of followingpractice of qiyds in their legal judgements. See for instance Husayn
al-Karaki, Hiddyat al-abrdr (MS 3278/1, Mar'ashi Library, Qum), Chapter 8.
(9) Ibn al-Mutahhar, Ajwibat al-masd'il al-Muhannd'iyya (MS 1474, Central

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 RATIONALISM AND TRADITIONALISM IN SHief JURISPRUDENCE 149
this mode of analysis bears no connection with the Sunnt
concept of qiyds.(1) It seems that in the religiousmentality
ofthe Sht'a of the firstcenturies,all kindsof rationalarguments
were considereda kind of qiyds.(2) This was perhaps caused
by some outward or terminologicalsimilarities. Then, tra-
ditionalistsbelievedthat the injunctionsfoundin Sht'tTradition
which forbadethe practiceof qiydswere also applicable to any
othermode of rationalanalysis.
These traditionsalso forbidpractisingindependentjudgment,
whichis called ra'y in Islamic legal terminology. In the legal
usage of the early periods,the term ijlihddwas used (3) in the
sense of personal judgmentsincludingra'y. (4) This explains
why ShT'Tsrefrainedfromthe use of the term ijlihdduntil the
6th/12thcentury.(5) It also explains the objections raised
in Shi'l theologicalworkstoward ijtihdd,(6) and the refutation
of its legitimacyin workswrittenby Shl'I theologianslike the
Nawbakhtls, (7) 'Abd Allah b. 'Abd al-Rahman al-Zubayrt, (8)
and Abu'l-Q "sim'All b. Ahmad al-KAfi.(9) All these were
against ijlihad in the above sense. Otherwise ijlihdd, as a

Library, University of Tehran), fol. 92a; al-Shahid al-Th&nI, al-RawIda al-bahiyya

(Najaf, 1386-90q), III, p. 65 See also al-Wahid al-BihbahntI, Tahqtq ft 'l-qiyds
(MS 458, Mar'ashl Library, Qum), fol. 85a.
(1) Ibn al-Mutahhar, loc. cit.; al-SuyxIrI, fol. 3a; al-Wahid al-Bihbah&nt,
fol. 85b.
(2) See al-Kashshl, p. 189; al-Muhaqqiq al-IHillI, Ma'drij al-wusuil (Tehran,
1310 q), p. 127.
(3) See for instance Abu 'l-Ijusayn al-Basgr, al-Mu'tamad ft al-flqh, ed.
M. Hamid AllAh (Damascus, 1964-5), pp. 689, 722, 762-6; Qddi Nu'm&n,us.al Ikhtildf
us'l al-madhdhib, ed. M. Ghalib (Beirut, 1973), pp. 203-28; al-Mufid, al-FusIdl
al-mukhtdra(2nd edition, Najaf, n.d.), p. 68; al-MurtadI, al-Dhart'a, pp. 672-3.
(4) See furtherthe article idjtihddin EI, 2nd edition, III, p. 1026.
(5) See Muhammad B&qir al-Sadr, Durds ft 'ilm al-usil (Beirut, 1978), I,
pp. 55-64.
(6) See for instance al-Mufld,Awd'il al-maqdldt,ed. 'A. W&A'iZCharandbtI and
F. al-Zanj&nI (TabrIz, 1364q), p. 127; idem, al-Fusdl al-mukhtdra,pp. 66-9. See
also al-Nu'mint, al-Tafstr, ed. in Muhammad B&qir al-Majlist's, Bihdr al-anwdr,
vol. XCII (Tehran, 1387q), pp. 95-6; al-Murta<di, at-Dhart'a, pp. 792-5; idem,
al-Intisdr (Najaf, 1971), p. 98.
(7) Iqbbl,pp. 94, 117,118,120.
(8) Al-Najisht,p. 163.
(9) Ibid., p. 203.

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150 HOSSEIN MODARRESSI

rationalmodeofreasoning,was quite an acceptablephenomenon

among many ShI'Is fromthe 2nd/8thcenturyonwards, and
fromlate 4th/10thcenturyit emergedas the only methodby
which legal subjects were approached.(') These analytical
and rational methods of Shl'l scholars of the early centuries
of Islam appeared to amount to ra'y and qiyds in the eyes of
strict traditionalistswho objected to the rational analytical
modes of reasoningin law. (2)
In some traditions,it is reportedthat some companionsof
the Imams practisedqiydson occasions when instructionsover
a particularproblemwere not explicitlyand clearly given in
the Qur'an and Tradition,(3) and that some of them were
practisingthe methodof ra'y. (4) Some of the most knowled-
geable companions of the Imams whose opinionsand judgments
are cited in legal sources,have been accused of followingthe
practice of qiyds.(5) It is almost certain that they were
supportersof the analytical mode of reasoningand not of the
Sunni conceptof qiyds. Theirjudgments,manyofwhichhave
been collected by Asad Allah al-K(azimi (6) confirmthis point.
It is evidentfromwhat has so farbeen said that in the period
ofthe presenceofthe ImAms,two legal tendenciesexistedin the

(1) This is according to the predominant Ustil school of Shl'I law. The
AkhbArtsrejected the validity of all kinds of rational argument in law, as noted
before.
(2) Books such as al-Radd 'ald man radd dthdral-Rasdl wa i'lamad 'ald natd'ij
al-'uqdl by Hildl b. IbrAhlm b. Abi 'l-Fath al-Madanl (al-NajAshl, p. 344) are
writtenwith the same understanding.
(3) Durust b. Abi Mansir, Kildb Durust b. Abt (Tehran, 1371q), p. 165;
al-Barql, al-Mahdsin, ed. J. Mulhaddith Urmawl Mans.ir(Tehran, 1370q), I, pp. 212-15;
al-IHimyarl,Qarb al-isndd (Tehran, n.d.), p. 157; al-Kashshl, p. 239; al-Mufld,
al-Ikhlisds, ed. M. M. al-KharsAn (Najaf, 1971), p. 275; al-'AmilI, XVIII,
pp. 33, 38; al-Nirl, Mustadrak al-Wasd'il (Tehran, 1382q), III, pp. 176-7; Jdmi'
.Iurr
al-Sht'a, I, pp. 274-6.
(4) Al-Barql, al-Mahdsin, I, pp. 212-15; al-Kashshl, pp. 156-7.
ah.ddth
(5) See Ibn BAbawayh, Man ld yahduruhal-faqth,ed. IH. M. al-KharsAn (Najaf,
1377q), IV, p. 197 ; al-MurtadA,Ibtdl al-'amal bi-akhbdral-dhdd (microfilm1162,
Central Library, Universityof Tehran), fol. 142b; al-Futfin, Tanzth al-Qummiyyin
min al-mafd'in (Qum, 1328 sh), p. 44; Bahr al-'Ulflm, al-Fawd'id al-rijdliyya,ed.
M. S. and H. Al Bahr al-'Uluim (Najaf, 1965-7), III, pp. 215-19; al-Kaziml, Kashf
al-qind' (Tehran, 1317q), p. 83. See also al-TIst, 'Uddat al-ugsul,p. 51.
(6) See his Kashf al-qind', e.g., pp. 82-3, 198, 244.

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 RATIONALISM AND TRADITIONALISM IN SHiei JURISPRUDENCE 151

Sht't community. One of them adhered to an analytical,

rational approach toward legal problemswithinthe framework
of the general principlesof the Qur'an and Tradition. The
otherwas a traditionalistapproachwhichreliedon transmitting
traditions without any furtherinferentialderivation of the
law. (1)

Afterthe periodofthe Imams (ended260/874),the traditiona-

list schoolgraduallygained controlover the wholeSht'tintellec-
tual community,and totallysuppressedthe rationaltheological
and legal tendencies which were based on reasoning. The
school of Qum, which in those days was the most prominent
was completelydominatedby this
religiouscenterof the Shft'ts
current and the Qummt scholars were all traditionalists (2)
objecting to any kind of reasoningand analytical thoughtin
the Shit' community. The overwhelmingmajority of Sht't
jurists duringthis period and up to the late 4th/10thcentury
were adherents of this school of thought.(3) Like their
predecessorsin the time of the Imams, they devoted their
effortsto collecting,recordingand preservingthe traditions
fromthe Imams. They, too, werenot sympatheticto rational
argumentsin religious matters, and condemned even those
effortswhich applied rational argumentto religiousquestions
in orderto strengthenthe Sht'tpointsof view. (4) This school
resembledin its outlookthe Sunni school of "the traditionists",
in which Ahmad b. IIanbal rejected kaldmeven when used in
defenceof Islam. (5)

(1) See also Khumaynt,Risdla ft'l-ijtihddwa 'l-taqltd(Qum, 1385q), pp. 125-8.

(2) Al-Murtad1A,Ibfdl al-'amal bi-akhbdral-dhdd, fol. 142b; al-FutOnt, p. 4.
See also al-Tfst, K. al-Fihrist, ed. M. $. Al Bahr al-'Ulfm (Najaf, 1937), p. 157.
(3) Al-TOst,'Uddat al-usil, p. 248; Ibn al-Mutahhar,Nihdyal al-wusll (MS 1908,
Mar'asht Library, Qum), fol. 200b.
(4) See Ibn BAbawayh, al-I'tiqdddt (Tehran, 1370q), p. 74. See also al-Mufid,
Tashth al-i'tiqdd, pp. 169-70; al-TOst, K. al-Ghayba (Tabrtz, 1323q), p. 3.
(5) Ibn al-Jawzt, Mandqib al-imdm Ahmad b. HIanbal (Cairo, 1979), p. 205.
See also Ibn QudAma, Ta rtm al-na;ar ft kutub ahl al-kaldm, ed. G. Makdist
(London, 1962), p. 17.

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152 HOSSEIN MODARRESSI

In their legal approach, there were two groups of traditio-

nalists who differedamong themselves. One only accepted
traditionsrelated by transmitterswhose reliabilityhad been
thoroughlyexamined, and recognizedand implementedthose
principlesof ugsdlal-fiqhwhichwere mentionedin the traditions
from the Imams. (1) The other group followed traditions
without compromiseand completelyignoredthe principlesof
upsl al-fiqhand therulesby whicha traditioncould be examined.
They completelyignoredthe proceduresof debate, reasoning
and recognizedmodes of discourse.(2) The extremetendencies
of these Shf'i traditionalistswere comparableto the tendency
of IHashwiyyain Sunnism which was the most extremeand
inflexible Sunni traditionalist school.(3) However, in the
works of Shf'l theologiansof the 4th-6th/10th-12th centuries,
terms such as hashwiyya(4) and muqallida (5) together with the
terms ashdb al-hadith(6) and akhbariyya(7) were applied to all

(1) Al-KAziml,pp. 207-14; 'Abd AllAhal-TOnt,Risdla ftsaldt al-jum'a (MS 128/2

ImAm Jum'a-yi Khu'l, Majlis Library, Tehran), p. 97. See also al-TAist, 'Uddat
al-us~l, p. 248.
(2) Al-TOst,'4Udda, p. 248; al-KAziml, p. 202.
(3) See al-Mufid, al-Ifsdh (Najaf, 1950), p. 77; idem, Awd'il al-maqdldt,p. 65;
MurtadI al-RAzt,Tabsirat al-'awdmm,ed. 'A. HA'irl (Tehran, n.d.), p. 46.
(4) Al-Mufid,al-Masd'il al-'Ukbariyya (MS 2319, Central Library, University
of Tehran), fol. 59 a; idem, Awd'il al-maqdldt,p. 86; idem, Jawdb ahl al-Hd'ir, ed.
in 'All b. Muhammad al-'Amill's al-Durr al-manthuir(Qum, 1398 9), p. 114; 'Abd
al-Jalil al-Qazwlnl, al-NaqId, ed. J. MulhaddithUrmawl (Tehran, 1358 sh), pp. 3,
235, 272, 285, 529. See also al-Muhaqqiq al-Hillt, al-Mu'tabar, p. 6; al-Fayd
al-KAshanl, al-Usill al-astla, ed. J. MulhaddithUrmawl (Tehran, 1390 q), p. 61.
(5) Al-Mufld,Jawdb ahl al-Hd'ir, p. 112; al-Tusi, 'Udda, p. 54.
(6) And similar terms such as ashdb al-akhbdr,ahl al-hadith,ahl al-akhbdr,etc.
See al-MufMd, Awd'il al-maqdldt,pp. 80-1, 87, 88, 89, 92, 101, 108, 118; idem, Tashfh
al-i'tiqdd, pp. 186, 222; idem, al-Radd 'ala ashdb al-'adad, ed. in al-'Amill's al-Durr
al-manthir (Qum, 1398 q), p. 124; idem, al-Masd'il al-Sarawiyya (Qum, [1979]),
pp. 222, 223; al-Murtapd, Jawdbdtal-masd'il al-Mawsiliyya al-thdlitha(microfilm
1162, Central Library, University of Tehran), fol. 40 a; idem, al-Radd 'ald ashdb
al-'adad (the same microfilm),fol. 130 b; idem, al-Masd'il al-Tardbulusiyydt(the
same microfilm),fol. 110; idem, al-Masd'il al-Tabbdniyydt(MS 2335, Library of
the Holy Shrine, Meshed), fol. 2; al-Ttist,al-Ghayba, p. 3; idem, 'Udda, p. 248;
Ibn IdrIs al-H;Iilli,p. 249. See also al-TOist,al-Mabsuit,ed. M. T. al-Kashfi and
M. B. al-Bihbfdi (Tehran, 1387-93 q), I, p. 2.
(7) 'Abd al-Jalll al-Qazwlnt, pp. 3, 236, 272, 282, 285, 458, 529, 568-9; Ibn al-
Mutahhar, Nihdyat al-wupsil,fol. 200 b. See also al-ShahrastAnl, al-Milal wa
'l-nihal, ed. A. M. al-'Id (Cairo, 1977), p. 169, 178; SharIf al-JurjAnt,Sharh al-

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 RATIONALISM AND TRADITIONALISM IN SHieI JURISPRUDENCE 153
the adhrents of the traditionalisttendency, even the more
moderate group.(1)
At the same time when the traditionalistsdominated Sht't
academical circles,there existed a very few supportersof the
rational tendencyin the Shf'1school of thoughtwho, in their
turn, differedamong themselves. Some, like Ibn AbM'Aqfl
Abfi Muhammad IHasan b. 'All al-'UmanI (early
the traditionsfor
4th/10thcentury),rejected the validity ofal-.Hadhdha'
law. (2) Others,like Ibn al-JunaydAbfi 'All Muhammad b.
Ahmad al-KLatibal-Iskaft(mid 4th/10thcentury)(3) and Abfi
Muhammad IIasan b. Musa al-Nawbakhtt (early 4th/10th
century)(4) recognized the traditions as valid legal sources.
It is alreadywell-knownthat muchdisagreementexistedamong
the Mu'tazill theologiansof the time,too, about matterssuch as
the validityofthe traditions,(5) qiydsand the like.
In the last decades of the 4th/10thand early5th/11thcentu-
ries, the school of traditionalistswas swept away by the tea-
chingsofal-Shaykhal-Muftdand hisdiscipleal-Sharifal-Murtad
throughtheir numerouspolemical works and harsh criticisms
of the principlesof traditionalists,and their skillfulemphasis
on some unpopular theologicalopinions of the latter.(6) Al-
Mufid and al-Murtada& managed to revive the rational school
of Sh1"'law. Aspects of this severe controversyare recorded
in some ofthe sources(7) in whichthe traditionalistsare referred
to as the akhbdriyyaand the rationalistsas mu'lazila or kald-
miyya.(1) Al-Muftdand al-Murta~dtoo, speak ofthe approach

Mawdqif (Constantinople, 1286 q), p. 629; Fakhr al-RAzt, al-Mahadl (quoted in

al-KAzimI, p. 203).
(1) For more details about the methodology and beiliefs of the adherents of
the traditionalist school, see the works mentioned above by al-Mufid and
al-MurtadA.
(2) Al-Tustarl, Qdmrdsal-rijdl (Tehran, 1379 q-), III, p. 198.
(3) See al-Mufld,al-Masd'il al-Sarawiyya, p. 223.
(4) Al-NajdshI, p. 50.
(5) See 'Abd al-Majld, al-Ittijdhdtal-flqhiyya'ind ashdb al-hadtth(Cairo, 1979),
p. 94.
(6) See my An Introductionto Sht't Law (forthcoming).
(7) E.g. al-Shahrastnlt, p. 178.
(8) Ibid., pp. 169, 178; Shartf al-Jurjint, p. 629; Fakhr al-Rgzt,
(quoted in al-K8Aimt,p. 203). al-Ma.fdl

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154 HOSSEIN MODARRESSI

of mutakallimanand muhaqqiqinas against that of the "tradi-

tionists."(1) In later Shi'i sources, the adherents of this
rationalistschool are referredto by the termeugsliyya. (2)
The approach of the rationalists relied firmlyon general
Qur'anic principles and on widely transmitted(mulawalir)
traditions,and excluded those traditionswhichdid not provide
certainty(ahld). Instead of the latters,they conformedto
thoselegal viewswhichwereaccepted and continuallypracticed
among Shi"ts (ijmd'd). (3) The process of inferringprecepts
fromthe appropriatesources was carriedout throughrational
analysis, the proceduresand rules of conduct of which were
familiar to the theologicans because of the latters' daily
involvmentwith difficult theologicaldebate.
Aroundthe middleof the 5th/11thcentury,Shaykh al-Ta'ifa
establisheda moremoderatelegal school by combiningmethods
of rationalistswiththat of the traditionalists. He maintained
the validityof the traditionsas a sourceof law whilepreserving
the analytical and rational method of law. This remained
characteristicof Shl'i law up to the presenttime.

Afterthe decline of the traditionalistsschool in the early

5th/llth century,a small number of its adherentssurvived,
here and there,in the later period,(4) but they were not active
and were, therefore,largely ignored by others. It was not
until the beginningof the 11th/l7thcenturythat theirschool
was revived by Muhammad Amin al-Astarabidi (d. 1036/
1626-7) throughhis book al-Fawd'id al-Madaniyya.

(1) Al-Muftd,Awd'il al-maqdldt,p. 98; al-MurtadA,al-Masd'il al-Tabbdniyydt,

fol. 2.
(2) See for instance 'Abd al-Jalil al-Qazwtnt,pp. 3, 178, 179, 190, 231, 235-7,
240, 272, 281, 284, 415-16, 459, 481, 504, 506, 528, 569; Ibn al-Mutahhar, Nihdyat
al-wusdl, fol. 200 b.
(3) See works of al-Mufid(e.g. al-i'tiqdd,pp. 179, 212, 227-9; al-Tadhkira
al-Sarawiyya, pp. 233-5; Jawdb ahl al-iHd'ir,
bi-us~il al-fiqh, p. 193; al-Masd'ilTashth.
pp. 112, 116) and al-Murtad; (e.g. Jawdbdt al-masd'il al-Mawsiliyya al-thdlitha,
fol. 40a). Also al-RHwandt,Fiqh al-Qur'dn (Qum, 1397-9q), I, p. 4.
(4) 'Abd al-Jalil al-Qazwlnt, p. 568.

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 RATIONALISM AND TRADITIONALISM IN SHieI JURISPRUDENCE 155

The suitable ground for revival of the traditionalistschool

had gradually been provided since early 10th/l6thcentury.
It has been said that Ibn Abi Jumhciral-Ahsa'l, a Shf'I theolo-
gian with sufi tendencies of early 10th/16thcentury,was a
followerof the traditionalistschool.(1) In the second half
of the same century, IHusayn b. 'Abd al-Samad al-'Amil1,
shaykhal-Islam of the Safavid court (d. 984/1576) criticized
the legal method of Sht't jurists and blamed them for being
imitators of the "ancients". (2) 'Abd al-Nabi b. Sa'd al-
Jaza'irI, a slightlylater jurist, criticizedthe legal approaches
of the UsilI schoolin his al-Iqtis~dfisharhal-Irshad(3) (written
in 1015/1606-7). A sadr (the chiefreligiousdignitary)of the
Safavid courtin the firsthalfof the 11th/l7thcenturyis quoted
as having said that no ShI'I mujiahidremainedin Iran or the
Arab worldin his time.(4) Ahmad b. Muhammadal-Ardabfll,
knownas al-Muqaddas, the religiousleader of the Shl'I commu-
nity in his time and a prominentjurist (d. 993/1585),never
hesitated to reject the opinions of all previous Shi'l jurists
whereverthey excluded traditionson the basis of a rational
argument.(5) His studentslike Muhammadb. 'All al-'Amill,
author of Maddrik al-ahkdm(d. 1009/1600)followedthe same
line. 'Abd Allah b. Husayn al-Tustarl,a prominentjuriscon-
sult of early 11th/17thcentury(d. 1021/1612)made a great
contributionto the revival of hadithliterature.(6) Subjects
such as the validity or invalidityof the traditionsas a source
of law had again become points of debate among the jurists
of early 11th/17thcentury.(7) The value of logic and philo-
sophy in Islamic scholarship had already come under ques-

(1) Al-Nilrt,III, p. 361.

(2) See his Risdla ft hukm al-husr wa'l-bawdrtwa sahm al-Imdm (MS 1836/12,
Majlis Library, Tehran), p. 217; Tis' masd'il (MS 1805/53,the same library),p. 256;
Risdla fttahqtqba'd al-masd'il al-fiqhiyya(MS 5960/3,the same library),pp. 123-124.
(3) MS 5886/2,Majlis Library, Tehran, pp. 18-136.
(4) 'All Naqi Kamara't, Risdla dar ithbdt-iluzuim-iwujdd-i mujiahid dar zamdn-i
ghaybal (MS 3813, Majlis Library, Tehran), pp. 2-3.
(5) See his Majma' al-fd'ida wa 'l-burhdn(Tehran, 1272q), passim.
(6) See Muhammad BAqir al-KhwAnsArt, Rawddt al-janndt, Ed. M. T. al-Kashfl
and A. Ism&'lliyAn(Qum, 1390-2q), IV, pp. 235, 240, 243.
(7) See Ibid., IV, p. 238.

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156 HOSSEIN MODARRESSI

tion.(1) Elements such as these contributedenormouslyto

the appearance of a new traditionalistschool and its rapid
developmentand predominance.
The new traditionalistschool, which was now called by its
otherold name, AkhbarI,was, like its predecessor,opposed to
the rational, analytical approaches to the law and adhered
strictlyto the outward,literalmeaningsof the traditions. In
the above-mentionedwork,Amin al-Astarabadiargued against
rational analysis and reasoningas a means of discoveringlegal
norms,and utterlydismissedthe principlesof uisdlal-fiqhwhich
had been evolved in orderto definethe rationalmethod. This
approach basically resembled the more radical wing of the
early traditionalistswhichconsideredall traditionstransmitted
fromthe Imams as authentic.(2)
The focus in Amin al-Astarabidi's argumentwas on the
invalidityand peccabilityof the Aristotelianlogic which had
been the basis for the ShCi jurists in their legal reasonings.
The main difference betweenthe two Shf'i legal tendenciesof
Usfili and AkhbarI was the validity or invalidityof reason in
connectionwith religiousmatters,althoughmany otherpoints
of disagreement,mostlyof the same type, existed at the same
time. (3)
The AkhbarIschoolfoundits way to Iraq in the fourthdecade
of the 11th/17thcenturyand was followedby most of the
jurisconsultsof Najaf and other ShI'i centers of learning in
Mesopotamia.(4) In Iran the majorityof the jurists of the
provincesin the second halfof the same centurysupportedthis

(2) Al-ShahId al-Thant, Risdla ft laqltd al-mayyit (quoted in al-MAhizi, al-

"Ashara al-kdmila [MS 3866, Majlis Library, Tehran], p. 242).
(2) See al-Wahid al-BihbahAnt,al-Fawd'id al-'attqa (Tehran, 1270q), pp. 436-8;
Muhammad BAqir al-KhwAnsArt, I, pp. 127-30.
(3) See al-JazA'irt, Manba' al-haydt (MS 2761/4, Majlis Library, Tehran),
pp. 275-8; al-SamAhtji, Munyat al-mumdrisn (MS 1916/27, the same library),
pp. 375-9 (also quoted in al-KhwAnsArt,I, pp. 127-30); Shflshtart,al-Dhakhtra al-
bdqiya (MS 1916/29, the same library), pp. 381-382; Shubbar, Buqhyat al-ftdlibin
(MS 3972, the same library),the whole work.
(4) Taqi al-Majlist,Lawdmi'-i s8dibqardnt(Tehran, 1331q), I, p. 16;
Mul.ammad
al-KhwinsArt,I, p. 137.

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 RATIONALISM AND TRADITIONALISM IN SHirf JURISPRUDENCE 157

tendency.(1) The religious academy of Isfahan, which was

the largestcenterof ShfCi
learning,was dominatedby the Usi1lis,
although the firstMajlisl, Muhammad Taqi b. Maqsud 'All
(d. 1070/1659-60) inclined to Akhbarism,(2) and his son
MuhammadBaqir, Majlisl II (d. 1110/1699)suporteda method
between Akhbarism and Ustlism.(3) Zayn al-Din 'All b.
Sulayman b. Darwish b. Ihatimal-Qadaml al Baihrint(d. 1064/
1653-4)took AkhbarismfromIran to Bahrain. (4) Duringthis
century, the animosity between AkhbarIs and Usillis had not
yet become strong.Sharperoppositionbetweenthem,however,
began to appear fromthe last decades of the same century.(6)
The Akhbaritendencygained supremacyin all Shl'f centers
of learningin the followingcentury,and held ShI'i law in its
grasp forseveral decades until the second half of that century,
whenit again declinedin the faceof Usilliresurgence. Bahrain
was the strongholdof this school duringthis period and has
remainedso up to the present,afterthe demise of Akhbarism
in Iran and Iraq.

In the second half of the 12th/18thcenturyan outstanding

jurist with a genius for rational argumentand analysis suc-
ceeded in dismantlingthe influenceof the Akhbarischool and
to oust it totally fromthe scene. This scholarwas, as noted
before,al-Wahid al-Bihbahint who establisheda new rational
school in ShI'i law.

(1) Muhammad Taqi al-Majlist, Rawdat al-muttaqin(Tehran, 1393-9q), I, p. 21.

(2) Idem, Lawdmi', I, pp. 16, 30; al-Khwdnsdrt,I, pp. 136-7, II, p. 119.
(3) See his Risdla dar sayr wa sululk(MS 880, Mar'asht Library, Qum), fol. 53a.
See also his Zdd al-ma'dd (IsfahAn, 1311q), pp. 557-8 (also quoted in al-Bahrdnt,
al-Hadd'iq al-nddira [Najaf, 1377q-], XII, p. 268.
(4) Al-BalhrAnt, Lu'lu'at al-bathrayn(Bombay, n.d.), p. 13; TunukAbunt,Qisas
al-'ulamd' (Tehran, n.d.), p. 227; Aght Buzurg al-TihrAnt,XI, p. 76. The name
"Bahrain" is used here in its old meaning which included the mainland of al-Qatif
and al-AhsA' inhabited by Sht'ts.
(5) See al-Khwdnsart,I, pp. 134-5. Also 'All b. MuIhammadal-'Amill, al-Sihdn
al-mdriqa(MS 1576, Mar'ashl Library, Qum), fols. 7b-10a.

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158 HOSSEIN MODARRESSI

Conditionsforsuch a changewere,to some extent,facilitated

by some Akhbarlscholarsin mid 12th/18thcentury. Scholars
such as Sadr al-DIn Muhammad b. Muhammad BAqir al-
Hamadani (d. after 1151/1738-9)in his Sharh al-Wdfiyaand
Yeisuf b. Ahmad al-BahranI (d. 1186/1772)in introductionto
his al-fIadd'iq acceptedsome argumentsof the Usilis,
al-n.dira,
rejectedsome extremeAkhbartapproachesand followeda more
moderate line. Through severe continuous mental efforts,
al-BihbahnIt managed to reestablishthe authorityof reason
and rationalargumentin law and to revivethe UsilI or rationa-
list school of ShI'I jurisprudence. In the followingcentury,
the reconstructionof ShfI' jurisprudenceby al-Shaykh al-
Ansari resulted in a radical change in the whole system of
ShI'i law. Many new elementsfromIslamic logic and philo-
sophywere introducedto the jurisprudence. The characteris-
tics of this new rational school are to be explained on another
occasion.
Hossein MODARRESSI
(Princeton,U.S.A.)

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