| "Islamic tradition reserves to the Caliph
or the head of the Muslim State not only politics (including administration
of justice), but also cult, i.e., the outward practice of the religion,
such as the service of worship [salat], fasting and pilgrimage. All this
falls under the purview of the Fiqh (Muslim law) developed by the different
schools. In this realm, monopoly of power has been jealously imposed, although
this concerns a rather less important part of our life. Sectarian differences
exist among Muslims since the death of the Prophet, as to who had the right
to succeed to the Prophet in the exercise of the power regarding politics
and cult. Let us leave the decision to God on the Day of Judgment, and
let us occupy ourselves with our future and the defense against the enemies
of God. As to the inner life, which alone determines the salvation
in the everlasting Hereafter, in this sphere there are no jealousies: several
persons could and did succeed the Prophet simultaneously. If the Naqshbandiyah
Order of mystics seeks its authority from the Prophet through Abu Bakr,
the Qadiriyah and the Suhrawardiyah orders for instance, do the same through
'Ali, and all this among the Sunnis to whom Abu Bakr alone was the immediate
successor of the Prophet in the political field. This spiritual Realm,
which unites Sunnis and Shi'iahs, is not vapid abstraction: It has its
own full-fledged administrative organization. The existence of Abdal
and
Autad or spiritual governors and administrators, is known on the authority
of the Prophet himself, as we read by as early an author as Ibn Sa'd. A
monograph of Suyuti has collected all the traditions of the Prophet on
the subject of qutb, abdal and autad."
(3)
The following entry for the most part
consists of an excerpt under the heading of "Shi'ah" from the "Dictionary
of Islam" © 1886, but this excerpt also gives a quotation from N.B.E.
Ballie from his introduction to his digest of the Imamea Code (London
1869). This Dictionary was compiled by T.P. Hughes, who was an eminent
Christian missionary in India during the late 1800s. We have tried not
to tamper with its original idiom and vernacular even though on quite a
few occasions it was difficult to control our desire to make alterations
or to paraphrase some of the material for the sake of brevity and clarity.
Nonetheless we feel this entry has much to offer Muslims in understanding
the differences between the Sunni- Hanafi and the Shi'ah School of Law
and to indicate how political developments in the history of Islam have
brought the differences into an emotionally charged sharp focus on certain
aspects of such differences. Historically, this has resulted in strained
relations between the followers of the two sects. Misguided, deep rooted
emotions and excessive zeal of adversaries in defending themselves are
no doubt the two obvious elements which, unfortunately, seem to defy attempts
towards reconciliation and the much needed religious tolerance. It is our
feeling that our efforts to fill in the knowledge vacuum will also help
to re-establish sincere and effective communications. -
Editor
Shi'ah Lit. "Followers." The followers
of 'Ali, first cousin of Muhammad and the husband of his daughter Fatima.
Basic Beliefs
The Shi'ahs maintain that 'Ali was the
first legitimate Imam or Khalifah, or successor, to the Prophet,
and therefore reject Abu Bakr, 'Umar, and 'Usman, the first three Khalifahs
of the Sunni Muslims, as usurpers. They are also called the Imamiyahs,
because they believe the Muslim religion consists in the true knowledge
of the Imam or rightful leaders of the faithful. Also, the Isna'ashariyah,
or the Twelveans, as followers of the twelve Imams. The Sunni
Muslims call them the Rafizi, or the forsakers of the truth. The
Shi'ahs strenuously maintain that they are the 'orthodox' Muslims, and
arrogate to themselves (as do also the Sunnis) the title of
al-Mu'minun,
or the 'True Believers.'
The Spirit of division, which appeared
among the followers of Muhammad, even before his death, broke out with
greater violence after it; and the rapid strides of his successors to even
imperial power, only afforded a wider sphere for ambition. The great and
radical difference between the Shi'ahs and Sunnis, as we have already remarked,
arises from the former maintaining the divine and indefeasible right of
'Ali to succeed the Khalifate on the death of the Prophet. 'Ali's claims,
they assert, rested on his nearness of kindred to Muhammad, of whom he
was a cousin, and on his having married Fatima, the only offspring of the
Prophet which survived him. They also assert that he was expressly declared
his successor by the Prophet himself, under direct guidance from God.
Shi'ahs Consider the Imamate or Khalifate
to be a Divine Institution
The text quoted in defense of the divine
institution of the Khalifate in the Prophet's own family, is the 118th
verse of the Suratu l' Baqarah, or the Second Chapter of the Qur'an, which
reads: -
"And when his Lord tried Abraham with
words and he fulfilled them, He said, I am about to make of thee an IMAM
to mankind'; he said, 'Of my offspring also?' 'My covenant,' said God,
'embraceth not evil doers.'"
According to the Shi'ahs, this passage
shows that the Imamate, or Khalifat, is a divine institution, the possessor
thereof must be of the seed of Abraham. This the Sunnis would also admit,
as they hold that the true Khalifah can only be one of the Quraish tribe,
but from the expression, "My covenant embraceth not evil doers,"
the Shi'ah doctors establish the supernatural character of the Khalifate,
and hold that the divinely appointed leader must himself be without spot
or blemish or capacity to sin. The primeval creation of 'Ali is therefore
a dogma of the Shi'ah faith.
The author of the Hayatu 'l-Qulub
(Merrick's ed., p. 4) says: "the Prophet declared that the Most High had
created him, and 'Ali and Fatima, and Hasan and Husain, before the creation
of Adam, and when as yet there was neither heaven nor earth, nor darkness,
nor light, nor sun, nor moon, nor paradise, nor hell.' [Haqiqatul-Muhammadiyah]
The Shi'ah account of the nomination
of 'Ali by the Prophet Muhammad, pbuh, to be his successor.
The Shi'ah traditions also give very lengthy
accounts of the nomination of 'Ali by the Prophet to be his successor.
The following is the account given in the Hayatu 'l-Qulub (p. 334):
"When the ceremonies of the pilgrimage
were completed, the Prophet, attended by 'Ali, and the Muslims, left Mecca
for al-Medina. On reaching Ghadirkhum, the Prophet halted, although that
place had never been known as a stopping-place for caravans because it
had neither water nor pasturage. The reason for stopping at this place
being a direct message from the Almighty. The Prophet had received divine
message on the subject before, but He had not before expressly appointed
the time of 'Ali's inauguration."
* * * * *
"As the day was very hot, the Prophet ordered
them to take shelter under some thorn trees. Having ordered all the camel-saddles
to be piled up for a pulpit, he commanded a herald to summon the people
around him. Most of them had bound their cloaks on their feet as a protection
from the excessive heat. When all the people were assembled, the Prophet
ascended the pulpit made of camel-saddles, and, calling to him, the Commander
of the Faithful ('Ali), placed him on his right hand. Muhammad then gave
praise to God, and foretold his own death, saying that he had been called
to the gate of God. He then said, 'I leave among you the Book of God, to
which, while you adhere, you will never go astray. I leave with you the
members of my family who cannot be separate from the Book of God until
both they and the Book join me at the fountain of al-Kausar.' Then with
a loud voice, he said, 'Am I not dearer to you than your own lives?' And
all the people said, 'Yes.' He then took the hands of 'Ali and raised them
up so high, that the white of his arm-pits appeared, and said, 'Whosoever
from his heart receives me as his master, then let him receive 'Ali. O
Lord, befriend 'Ali. Be the enemy of all his enemies. Help all who help
him, and forsake all who forsake him."
The writer also says: "Certain authorities,
both Shi'ah and Sunni, declare that when the Prophet died, the Muhajirs
and Ansars, such as Abu Bakr, 'Umar, and 'Abdu r-Rahman ibn ul-'Auf, instead
of visiting the family of the Prophet to comfort them at the time of his
death, assembled at the abode of the Banu Saudah, and plotted to seize
the Khalifate. Most of them did not perform the prayers at the Prophet's
burial, although 'Ali sent to call them for the purpose. This plan was
to make Abu Bakr Khalifah, and for this they had plotted in the Prophet's
lifetime. The Ansars, however, wished to make Sa'd ibn ul-Abadah Khalifah,
but they were over-ruled by the Muhajirs. A certain man brought the information
that Abu Bakr was constituted Khalifah, when 'Ali was in the act of filling
in the earth of the Prophet's grave, and said that the hypocrites had feared
that if they waited until the funeral ceremony was over, they would not
succeed in their design of depriving 'Ali of his rights. 'Ali laid his
spade on the ground and recited the first verses of the29th Surah of the
Qur'an:
"Alif La Mim. Do men reckon that they
will be left alone who say, 'We believe,' and not be tried? We did try
those who were before them, and God will surely know those who are truthful,
and he will surely know those who are liars.'"
The Shi'ahs believe that at this time God
made special revelations to Fatima, the Prophet's daughter, and 'Ali's
wife. These revelations are said to have been possessed by the last of
the Imams, al-Mahdi, and to be still in his possession.
It need scarcely be added that the Sunni
writers deny every word of these traditions.
The strong hand of the Sunni Khalifah 'Umar
kept the claims of 'Ali in abeyance; but when 'Umar died, the Khalifate
was offered to 'Ali, on condition that he would govern according to the
Qur'an, and the traditions as received by the Sunnis. The answer of 'Ali
not being deemed satisfactory, the election devolved upon 'Usman. 'Usman
was assassinated A.H. 35, and 'Ali was elected on his own terms, in spite
of the opposition of Aisha, the favourite wife of the Prophet, who had
become a great influence in Islam.
One of the first acts of 'Ali was to recall
Mu'awiyah from Syria. Mu'awiyah refused, and then claimed the Khalifate
for himself. His claims were supported by Aisha. 'Ali was eventually assassinated
at Kufa, A.H. 40, and upon his death, his son Hasan was elected Khalifah,
but he resigned it in favour of Mu'awiyah, on the condition that he should
resume it on the death of the latter. Mu'awiyah consented to this arrangement,
although secretly determining that his own son Yazid should be his successor.
Upon the death of Mu'awiyah, A.H. 60, his
son Yazid, "the Polluted," obtained the position of Imam or Khalifah, without
the form of election, and with this event commenced the great Shi'ah schism,
which has divided the forces of Islam until this day.
The Lineage of Shi'ah Khalifahs
The leading, or "orthodox" sect of the
Shi'ahs, the Imamiyahs, received the following as the rightful Khalifahs:
1. 'Ali, the son-in-law of the Prophet.
2. Al-Hasan, the son of 'Ali.
3. Al-Husain, the second son of 'Ali.
4. 'Ali, surnamed Zinu ul-'Abidin, the
son of al-Husain.
5. Muhammad al-Baqir, son of Ainu ul-'Abidin.
6. Ja'far as-Sadiq, son of Muhammad al-Baqir.
7. Musa al-Kazim, son of Ja'far.
8. Ar-Raza, son of Musa.
9. Muhammad at-Taqi, son of ar-Raza.
10. 'Ali an-Naqi, son of Muhammad at-Taqi.
11. Al-Hasan al-'Askari, son of 'Ali an-Naqi.
12. Muhammad, son of al-Hasan al-Askari,
or the Imam al-Mahdi, who is supposed by the Shi'ahs to be still
alive, though he was withdrawn for a time, and they say he will again appear
in the last days as the Mahdi, or "Director," which the Prophet
prophesied would appear before the Day of Judgment.
The Imamites trace the descent of this
Imam Muhammad as direct from 'Ali, thus making him the twelfth lawful Imam,
on which account they are called the Isna-'ashariyah, or the "Twelveans."
They assert that this last Imam, whilst still a boy, being persecuted by
the Abbasidean Khalifahs, disappeared down a well in the courtyard of a
house at Hillah near Baghdad, and Ibn Khaldun says, so late as even in
his day, devout Shi'ahs would assemble every evening after sunset at this
well and entreat the absent Imam to appear again on earth.
Mujtahidun - Enlightened doctors
of law
In the present day, during the absence
of the Imam, the Shi'ahs appeal to the Mujtahidun, or "enlightened
doctors of the law," whose opinion is final on all matters, both temporal
and spiritual.
There have been two great schisms in the
succession of the Imams, the first upon the death of 'Ali Zainu ul-'Abidin,
when part of the sect adhered to his son Zaid, the founder of the Zidiyah
sect. And the second on the death of as-Sadiq, when his father nominated
his second son, Musa al-Kazim, as his successor, instead of allowing the
Khalifate to go in Isma'il's family; those who adhered to Isma'il's family
being called Isma'ilyah. The great body of the Shi'ahs acknowledge
Musa al-Kazim and his descendants as the true Imams.
The Isma'ilyah, like the Twelveans, make
profession of a loyal attachment to the cause of 'Ali. Their schism was
occasioned by a dispute regarding the succession to the Imamate on the
death of Imam Ja'far Sadiq. Ja'far had four sons, the eldest of whom was
Isma'il. One day, however, Isma'il was seen in the state of inebriation,
and his father disinherited him, and appointed his son Musa. The greater
number of the Shi'ahs accepted this decision, but a small number, who regarded
the drunkenness of the Imam as an evidence that he accepted the hidden
and not the legal precepts of Islam (!), remained attached to Isma'il.
They say from the time of 'Ali to the death of Muhammad, the son of Isma'il,
the Imams were visible, but from his death commenced the succession of
concealed Imams. The fourth of these "concealed" Imams was a certain 'Abdullah,
who lived about the third century after the Hijra.
The contentions of the Shi'ahs regarding
the succession have become endless, and of the proverbial seventy-three
sects of Islam, not fewer than thirty-two are assigned to the Shi'ahs,
and according to the Sharhu 'l-Muwaqif, there are as many as seventy-three
sects of the Shi'ahs alone.
According to the Sharhu 'l-Muwaqif,
the three principal sects of the Shi'ahs are (1) Ghulat, or Zealots,
the title generally given to those who, through their excessive zeal for
the Imams, have raised them above the degree of human beings. (2) Zaidiyah,
those who separated after the appointment of Muhammad Baqir to the Khalifate,
and followed Zaid. (3) Imamiyah, or those who acknowledge Ja'far
Sadiq as the rightful Imam, to the exclusion of Isma'il, and which appears
to be what may be called the orthodox sect of the Shi'ahs. Out of
these three great divisions have grown innumerable sects, which it would
be tedious to define. All Shi'ah religionists are more or less infected
with mysticism.
Many of the Shi'ahs have carried their
veneration for 'Ali so far as to raise him to the position of a divine
person, and most of the sects make their Imams partakers of the divine
nature. These view have their foundation in the traditions already quoted,
which assert the pre-existence of Muhammad and 'Ali, and they have undoubtedly
been fostered by the gnostic tendencies of all forms of Persian belief,
especially Sufism.
Since the accession of Isma'il, the first
of the Sufi dynasty, A.D. 1499, the Shi'ah faith has been the national
religion of Persia(4) [Iran]. Nadir Shah,
when at the summit of his power, attempted to convert the Persians to the
Sunni form of Islam, in order to assist his ambitious designs, but the
attempt failed, and the attachment of the Persians to the Shi'ah faith
has remained as decided as ever.
Sir Lewis Pelly remarks: "Though the personal
history of Ali and his sons was the exciting cause of the Shi'ah schism,
its predisposing cause lies far deeper in the impassible ethnological gulf
which separates the Aryan and Semitic races. Owing to their strongly centralized
from of government, the empire of the Sassanides succumbed at once before
the onslaught of the Saracens; still, Persia was never really converted
to Islam, and when Muhammad, the son of Ali, the son of Abdullah, the son
of Abbas, the uncle of Prophet Muhammad, proclaimed the Imamate as inherent
of divine right, in the descendants of the Caliph Ali, the vanquished Persians
rose as one man against their Arab conquerors. The sons of Abbas had all
espoused the cause of their cousin Ali against Moawiyah, and when Yazid
succeeded to the Caliphate, Abdullah refused to acknowledge him, and retired
to Mecca. It was he who tried to dissuade Husain from going to Kufa. His
son was Ali, who by order of the Caliph Walid, was flogged and paraded
through the streets of Damascus, mounted on a camel, with his face to its
tail, and it was to avenge this insult on his father that Muhammad resolved
to overthrow the dynasty of the Ommiades.
"The Persians, in their hatred of the Arabs,
had from the first accepted the rights of the sons of Ali and Fatimah to
the Imamate; and Muhammad cunningly represented to them that the Imamate
had been transmitted to him by Abu Hashim, the son of Mohammad, another
son of the Caliph Ali, whose mother was daughter of the tribe of Hanifah.
This was a gross fraud on the descendants of Fatimah, but the Persians
cared not so long as they threw off the Arab yoke." (Miracle Play,
Intro., p. xvi.; W.H. Allen & Co. 1879)
The Muhammadans of the province of Oudh
in British India are for the most part Shi'ahs, and there are a few in
the region of Tirah, on the frontier of India. With the exception of the
province of Oudh, the Muhammadans of India are for the most part Sunnis
of the Hanafi sect, but practices peculiar to the Shi'ahs have long prevailed
in certain localities. In most part of India, where the parties are Shi'ahs,
the law of this school of jurisprudence is always administered, especially
with regard to marriage and inheritance.
Five books of Traditions
It is not correct, as stated by Sale (Introduction
to the Koran) and others, that the Shi'ahs reject the Sunnah, or Traditions;
for although the Shi'ahs do not receive the "six correct books of the Sunnis,"
they acknowledge five collections of their own namely: (1) Al-Kafi (2)
Manlayastahzirahu 'l-Faqih (3) Tahzib (4) Istibsar (5) Nahju 'l-Balaghah.
The works written on the traditions are very numerous.
The Rev. James L. Merrick (Boston 1850)
has translated into English portions of the Hayatu 'l-Qulub, the
most popular book of traditions amongst the Shi'ahs. It was originally
compiled by Muhammad Baqir, son of Muhammad Taki, whose last work was the
well-known Haqqu 'l-Yaqin A.H. 1027 (1627 A.D.).
The Shi'ah school of jurisprudence is of
an earlier date than that of the Sunnis, for Abu
Hanifah, the father of the Sunni Code of Muslim law, received his first
instructions in jurisprudence from Ja'far as-Sadiq, the sixth Imam of the
Shi'ahs; but this learned doctor afterwards separated from his teacher
and established a code of law of his own.
The major differences between the Shi'ahs
and Sunnis
The differences between the Shi'ahs the
Sunnis are very numerous, but the following are the principal points:
(1) The discussion as to the office of
Imam, already alluded to.
(2) The Shi'ahs have a profound veneration
for the Khalifah 'Ali, and some of their sects regard him as an incarnation
of divinity, whilst they all assert that next to the Prophet, 'Ali is the
most perfect and excellent of men.
(3)They still possess Mujtahids,
or "enlightened doctors," whose opinion is final in matters of Muslim law
and doctrine. The Mujtahid is the highest degree amongst Muhammadan doctors.
The Sunnis say, in the present divided condition of Islam it is impossible
to appoint them, but the Shi'ahs still elect them in Persia, and the appointment
is confirmed by the king.
(4) They observe the ceremonies of the
Muharram in commemoration of al-Hasan and al-Husain, whilst the Sunnis
only observe the tenth day of the Muharram, or the 'Ashura, being,
they say, the day on which God created Adam.
(5) They include the Majusi, or
fire worshipers, amongst the Ahlu 'l-Kitab, or people who have received
an inspired record from God, whilst the Sunnis only acknowledge the Jews,
Christians, and Muslims as such.
(6) They admit the principle of religious
compromise called Taqiyah (lit. 'Guarding oneself'). A pious fraud,
whereby the Shi'ah Muhammadan believes he is justified in either smoothing
down, or denying, the peculiarities of his religious belief in order to
save himself from persecution.
(7) There are also various minor differences
in the liturgical ceremonies of the Shi'ahs, which will be found in the
account of the liturgical prayers.
The differences in the law
The differences between the civil law of
the Shi'ahs and Sunni have been carefully noted in Mr. N.B.E. Baillie's
Introduction to his Digest of the Imameea Code (London, 1869):
(a) "With regard to the sexes, any connection
between them, which is not sanctioned by some relation founded upon contract
or upon slavery, [click
here to go to Appendix A which sets out the Islamic policy on slavery]
is
denounced by both the sects as zina or fornication. But, according
to the Hanafiyahs, the contract must be for the lives of the parties, and
it is only to a relation founded on a contract for life that they give
the name of nikah, or marriage. According to the Shi'ahs, the contract
may be either temporary, or for life. To a relation established in any
of these ways, they give the name of nikah, or marriage, which is
thus, according to them, or three kinds, permanent, temporary, and servile.
It is only their permanent marriage that admits of any comparison with
the marriage of the Hanafiyahs. And here there is, in the first place,
some difference in the words by which the contract is effected. According
to the Hanafiyahs, the words may be
sarih (express) or kinayah
(ambiguous). According to the Shi'ahs, they must always be express; and
to the two express terms of the other sect (nikah and tazwij)
they add a third mu'tah, which is rejected by the others as insufficient.
Further, while the Hanafiyahs regard the presence of witnesses as essential
to a valid contract of marriage, the Shi'ahs do not deem it to be in anywise
necessary. The causes of prohibition correspond, to some extent, in both
schools; but there is this difference between them, that the Hanafiyah
includes a difference of dar, or nationality, among the causes of
prohibition, and excludes li'an, or imprecation, from among them;
while the Shi'ah excludes the former and includes the latter. There is,
also, some difference between them as to the conditions and restrictions
under which fosterage becomes a ground of prohibition. And with regard
to infidelity, though both schools entirely prohibit any sexual intercourse
between a Muslimah or Musalman woman and a man who is not of her own religion,
the Hanafi allows of such intercourse, under the sanction of marriage between
a Muslim and any woman who is a
kitabiyah, that is, who belongs
to any sect that is supposed to have a revealed religion, while the Shi'ah
restricts such connection to
mut'ah or temporary and servile marriages.
Among Kitabiyah, both schools include Christians and Jews, but the Hanafi
rejects Majusis, or fire-worshipers, who included among them by the Shi'ahs.
The Shi'ahs do not appear to make any distinction between valid and invalid
marriages, all that are forbidden being apparently void according to them.
But the distinction is of little importance to the parties themselves,
as under neither of the schools does an unlawful marriage confer any inheritable
quality upon the parties,; and the rights of the children born of such
marriages are determined by another consideration, which will be referred
to in the proper place hereafter.
[paragraphs (b) and (c) containing
outdated material have been omitted here]
"(d) But there are some important differences
between the repudiation of the two sects. Thus, while the Hanafiyahs recognize
two forms, the Sunni and Bida'i, or regular and irregular, as being equally
efficacious, subdivide the regular into two other forms, one of which they
designate as ahsan, or best, and other as hasan, or good,
the Shi'ahs, reject these distinctions altogether, recognizing only one
form of the Sunni, or regular. So also as to the expressions by which repudiation
may be constituted; while the Hanafiyahs distinguish between what they
call sarih, or express words, which are inflections of the word
talaq,
and various expressions which they term
kinayah, or ambiguous, the
Shi'ahs admit the former only. Further, the Hanafiyahs do not require intention
when express words are used; so that, though a man is actually compelled
to use them, the repudiation is valid according to them. Nor do they require
the presence of witnesses as necessary in any case to the validity of repudiation;
while, according to the Shi'ahs, both intention and the presence of two
witnesses in all cases are essential. Both sects agree that repudiation
may be either
ba'in (absolute or raja'i (revocable), and
that a repudiation given three times cannot be revoked, nor a woman so
repudiated be agin married by her husband until she has been intermediately
married to another man, and the marriage with him has been consummated.
But according to the Hanafiyahs, repudiation may be made irrevocable by
an aggravation of the terms, or the addition of a description, and three
repudiations may be given in immediate succession, or even unico contextu,
in one expression; while, according to the Shi'ahs, on the other hand,
the irrevocability of a repudiation is dependant on the state in which
the woman may be at the time that it is given, and three repudiations,
to have their full effect, must have two intervening revocations. To the
ba'in
and raja'i, repudiations of both sects, the Shi'ahs add one peculiar
to themselves, to which they give the name of the talaq-u'l-'iddah,
or repudiation of the 'iddah, and which has the effect of rendering the
repudiated woman forever unlawful to her husband, so that it is impossible
for them ever to marry with each other again. The power of revocation continues
until the expiration of the 'iddah, or probationary period for ascertaining
whether a woman is pregnant or not. After it has expired, the repudiation
becomes absolute, according to both schools. So long as it is revocable,
the parties are still in a manner husband and wife; and if either of them
should happen to die, the other has a right of inheritance in the deceased's
estate.
"(e) With regard to parentage, maternity
is established, according to the Hanafiyahs, by birth alone, without any
regard to the connection of the parents being lawful or now. According
to the Shi'ahs, it must in all cases be lawful; for a waladu 'z-zina,
or illegitimate child, has no descent, even from its mother, nor are there
any mutual rights of inheritance between them. For the establishment of
paternity, there must have been, at the time of the child's conception,
according to both sects, a legal connection between its parents or a semblance
of either. According to the Hanafiyahs, an invalid marriage is sufficient
for that purpose, or even, according to the head of the school, one that
is positively unlawful; but, according to the Shi'ahs, the marriage must
in all cases be lawful, except when there is error on the part of both
or either of the parents. With regard to children begotten under a semblance
of right, the Hanafiyahs require some basis for the semblance in the relation
of the parties to each other; while according to the Shi'ahs, bona fide
belief on the part of the man that the woman is his wife seems to be all
that is required; while no relation short of a legal marriage, without
such belief either on the part of the man or the woman, would apparently
be sufficient.
"(f) On the subject of testimony, both
schools require that it shall be direct to the point in issue; and they
also seem to be agreed that when two or more witnesses concur asserting
a fact in the same terms, the judge is bound by their testimony, and must
give his judgment in conformity with it. They agree in requiring that a
witness should in general have full knowledge, by the cognizance of his
own senses, of the fact to which he is bearing testimony; but both allow
him, in certain exceptional cases, to testify on information received from
others, or when he is convinced of the fact by inference from circumstances
with which it is connected.
"(g) Nasab, or descent, is included
by both sects among the exceptional facts to which a witness is allowed
to testify when they are generally notorious, or when he is credibly informed
of them by others. But according to the Hanafiyahs, it is enough if the
information be received from two just men, or one just man and two just
women; while the Shi'ahs require that it should have been received from
a considerable number of persons in succession, without any suspicion of
their having got up the story in concert. The Hanafiyahs class marriage
among the exceptional facts, together with Nasab; but, according
to the Shi'ahs, it more properly follows the general rule, which requires
that the witness should have the direct evidence of his own senses to the
fact to which he is giving his testimony. They seem, however, to admit
an exception in its favour; for they reasoned that as we adjudge Khadijah
to have been the mother of Fatima, the daughter of the Prophet, though
we know it only by general notoriety and tradition, which is but continued
hearsay, so also we may equally decide her to have been the Prophet's wife,
for which we have the same evidence, though we were not present at the
contract of marriage nor even heard the Prophet acknowledge it. Both sects
are agreed that a witness may lawfully infer and testify that a thing is
the property of a particular person when he has seen it in his possession;
and so according to the Hanafiyahs, 'When a person has seen a man and woman
dwelling in the same house, and behaving familiarly with each other in
the manner of married persons, it is lawful for him to testify that she
is his wife, in the same way as when he has seen a specific thing in the
hands of another.' The Shi'ahs to not apply this principle of inference
to the case of marriage, and there is no ground for saying that, according
to them, marriage will be presumed in a case of proved continual cohabitation.
"(h) There is a difference between the
two schools as to the person who is entitled to claim a right of shuf'ah,
or pre-emption. According to the Hanafiyahs, the right may be claimed,
firstly, by a partner in the thing itself; secondly, by a partner in its
rights of water and way; and thirdly, by a neighbour. According to the
Shi'ahs, the right belongs only to the first of these, with some slight
exception in favour of the second. The claim of the third they reject altogether.
In gift, the principal difference between the schools is, that a gift of
an undivided share of a thing, which is rejected by the Hanafiyah, is quite
lawful according to the Shi'ahs.
"(i) In appropriation and alms, there do
not seem to be any differences of importance between the two schools. And
in wills, the leading difference seems to be that while according to the
Hanafiyahs, a bequest in favour of an heir is positively illegal, it is
quite unobjectionable according to the Shi'ahs.
"(j) In respect of inheritance, there are
many and important differences between the two sects, but they admit of
being reduced to a few leading principles, which I now proceed to notice,
following the order in which the different branches of the subject are
treated of in this volume. The impediments to inheritance are found in
number according to the Hanafiyahs, viz. slavery, homicide, difference
of religion, and difference of dar, or country. Of these the Shi'ahs
recognize the first; the second also with some modification, that is, they
require that the homicide be intentional, in other words, murder, while
with the Hanafiyahs it operates equally as an impediment to inheritance,
though accidental. For difference of religion, the Shi'ahs substitute infidelity,
and difference of country they reject entirely. Exclusion from the whole
inheritance, according to the Hanafiyahs, is founded upon and regulated
by two principles. The one is that a person who is related to the deceased
through another has no interest in the succession during the life of that
other, with the exception of half-brothers and sisters by the mother, who
are not excluded by her. The other principle is that the nearer relative
excludes the more remote. The former of these principles is not expressly
mentioned by the Shi'ahs, but it is included without the exception in the
second, which is adopted by them, and extended, so as to postpone a more
remote residuary to a nearer sharer - an effect which is not given to it
by the Hanafiyahs.
"With regard to partial exclusion or the
diminution of a share, there is also some difference between the sects.
According to the Hanafiyahs, a child, or the child of a son, how low soever,
reduces the shares of a husband, a wife, and a mother, from the highest
to the lowest appointed for them; while, according to the Shi'ahs, the
reduction is effected by any child, whether male or female, in any state
of descent from the deceased. Further, when the deceased has left a husband
or wife, and both parents, the share of the mother is reduced, according
to the Hanafiyahs, from a third of the whole estate to a third of the remainder
in order that the male may have double the share of the female; but, according
to the Shi'ahs, there is no reduction of the mother's third in these circumstances,
though, when the deceased has left a husband, the share of the father can
only be a sixth. The shares and the person for whom they are appointed
being expressly mentioned in the Qur'an, there is no difference in respect
of them between the two schools. But they differ materially as to the relatives
who are not sharers. They are divided by the Hanafiyahs into residuaries
and distant kindred. The residuaries in their own right they define as
every male in whose line of relation to the deceased no female enters;
'and the distant kindred,' as 'all relatives who are neither sharers nor
residuaries.' The residuaries not only take any surplus that may remain
after the sharers have been satisfied, but also the whole estate when there
is no sharer, to the entire exclusion of the distant kindred, though these
may in fact be much nearer in blood to the deceased. This preference of
the residuary is rejected with peculiar abhorrence by the Shi'ahs, who
found their objection to it, certainly with some appearance of reason,
on two passage of the Qur'an cited below. Instead of the triple division
of the Hanafiyahs, they mix up the rights of all the relatives together,
and then separate them into three classes. According to their proximity
to the deceased, each of which in its order is preferred to that which
follows; so that while there is a single individual, even a female, of
a prior class, there is no room for the succession of any of the others.
"Within the classes operation is given
to the doctrine of the return by the Shi'ahs, nearly in the same way as
by the Hanafiyahs; that is, if there is a surplus over the shares, it reverts
to the sharers, with the exception of the husband or wife, and is proportionateley
divided among them. According to the Hanafiyahs, this surplus is always
intercepted by the residuary, and it is only when there is no residuary
that there is with them any room for the doctrine of the return. When the
shares exceed the whole estate, the deficiency is distributed by the Hanafiyahs
over all the shares by raising the extractors of the cases - a process
which is termed the 'aul, or increase. This is also rejected by
the Shi'ahs, who make the deficiency to fall exclusively upon those among
them whose relationship to the deceased is on the father's side. With regard
to the computation of shares, there does not appear to be any difference
between the schools." A Digest of Moohummudan Law. Imamea Code.
N.B.E. Baillie, London (1869).
Appendix
A
Excerpted from "Human Rights in Islam"
by 'Allamah Abu Al-'A'la Mawdudi. Chapter 3, subsection 5 - Al Tawhid Journal,
vol. IV. No. 3 Rajab-Ramadan 1407.
5. Individual's Right to Freedom
Islam has clearly and categorically forbidden
the primitive practice of capturing a free man, to make him a slave or
to sell him into slavery. On this point the clear and unequivocal words
of the Prophet are as follows: "There are three categories of people against
whom I shall myself be a plaintiff on the Day of Judgement. Of these three,
one is he who enslaves a free man, then sells him and eats this money"
(al-Bukhari and Ibn Majjah). The words of this Tradition of the Prophet
are also general, they have not been qualified or made applicable to a
particular nation, race, country or followers of a particular religion.
The Europeans take great pride in claiming that they abolished slavery
from the world, though they had the decency to do so only in the middle
of the last century. Before this, these Western powers had been raiding
Africa on a very large scale, capturing their free men, putting them in
bondage and transporting them to their new colonies. The treatment which
they have meted out to these unfortunate people has been worse than the
treatment given to animals. The books written by the Western people themselves
bear testimony to this fact.
The Position of Slavery in Islam:
Briefly I would like to tell you about
the position and nature of slavery in Islam. Islam tried to solve the problem
of the slaves that were in Arabia by encouraging the people in different
ways to set their slaves free. The Muslims were ordered that in expiation
of some of their sins they should set their slaves free. Freeing a slave
by one's own free will was declared to be an act of great merit, so much
so that it was said that every limb of the man who manumits a slave will
be protected from hell-fire in lieu of the limb of the slave freed by him.
The result of this policy was that by the time the period of the Rightly-Guided
Caliphs was reached, all the old slaves of Arabia were liberated. The Prophet
alone liberated as many as 63 slaves. The number of slaves freed by 'Aishah
was 67, 'Abbas liberated 70, 'Abd Allah ibn 'Umar liberated one thousand,
and 'Abd al-Rahman purchased thirty thousand and set them free. Similarly
other Companions of the Prophet liberated a large number of slaves, the
details of which are given in the Traditions and books of history of that
period.
Thus the problem of the slaves of Arabia
was solved in a short period of thirty or forty years. After this the only
form of slavery which was left in Islamic society was the prisoners of
war, who were captured on the battlefield. These prisoners of war were
retained by the Muslim Government until their government agreed to receive
them back in exchange for Muslim soldiers captured by them, or arranged
the payment of ransom on their behalf. If the soldiers they captured were
not exchanged with Muslim prisoners of war, or their people did not pay
their ransom money to purchase their liberty, then the Muslim Government
used to distribute them among the soldiers of the army which had captured
them. This was a more humane and proper way of disposing of them than retaining
them like cattle in concentration camps and taking forced labour from them
and, if their women folk were also captured, setting them aside for prostitution.
In place of such a cruel and outrageous way of disposing of the prisoners
of war, Islam preferred to spread them in the population and thus brought
them in contact with individual human beings. Over and above, their guardians
were ordered to treat them well. The result of this humane policy was that
most of the men who were captured on foreign battlefields and brought to
the Muslim countries as slaves embraced Islam and their descendants produced
great scholars, imams, jurists, commentators, statesmen and generals of
the army. So much so that later on they became the rulers of the Muslim
world. The solution of this problem which has been proposed in the present
age is that after the cessation of hostilities the prisoners of war of
the combatant countries should be exchanged. Whereas Muslims have been
practising it from the very beginning and whenever the adversary accepted
the exchange of prisoners of war from both sides, it was implemented without
the least hesitation or delay. In modern warfare we also find that if one
government is completely routed leaving her in no position of bargaining
for the prisoners of war and the winning party gets its prisoners easily,
then experience has shown that the prisoners of war of the vanquished army
are kept in conditions which are much worse than the conditions of slaves.
Can anyone tell us what has been the fate of the thousands of prisoners
of war captured by Russia from the defeated armies of Germany and Japan
in the Second World War? No one has given their account so far. No one
knows how many thousands of them are still alive and how many thousands
of them have perished due to the hardship of the Russian concentration
and labour camps. The forced labour which has been taken from them is much
worse than the service one can exact from slaves. Even perhaps in the times
of ancient Pharaohs of Egypt such harsh labour might not have been exacted
from the slaves in building the pyramids of Egypt, as has been exacted
from the prisoners of war in Russia in developing Siberia and other backward
areas of Russia, or working in coal and other mines in below zero temperatures,
ill-clad, ill-fed and brutally treated by their supervisors.
The Slave Trade of Western Nations:
After the occupation of America and the
West Indies, for three hundred and fifty years, traffic in slave trade
continued. The African coasts where the black-skinned captured Africans
were brought from the interior of Africa and put on the ships sailing out
from those ports, came to be known as the Slave Coast. During only one
century (from 1680 to 1786) the total number of free people who were captured
and enslaved only for British Colonies amounts, according to the estimate
of British authors, to 20 million human beings. Over the period of only
one year (1790) we are told that 75,000 human beings were captured and
sent for slave labour in the Colonies. The ships which were used for transporting
the slaves were small and dirty. These unfortunate Africans were thrust
into the holds of these ships like cattle right up to the top and many
of them were chained to the wooden shelves on which they could hardly move
because these were only eighteen inches apart, kept one on top of the other.
They were not provided with suitable food, and if they fell ill or were
injured, no attempt was made to provide them with medical treatment. The
Western writers themselves state that at least 20% of the total number
of people who were captured for slavery and forced labour perished during
their transportation from the African coast to America. It has also been
estimated that the total number of people who were captured for slavery
by the various European nations during the heyday of the slave trade comes
to at least one hundred million. This is the record of the people who denounce
Muslims day and night for recognizing the institution of slavery. It is
as if a criminal is holding his finger of blame towards an innocent man.
For further information on Islam and slavery click
here
Endnotes:
1. Introduction to Islam, by Dr. M. Hamidullah, paragraph
563a.
2. Ibid paragraph 499.
3. Ibid paragraph 208a
4. Persia was renamed 'Iran' in 1935
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