f we study the
subjects of FIQH in detail, we find that every one of them is peculiar and
singular in itself. There may seem to be some similarity at , first glance, but
a deeper study reveals a different aspect contained. It meets with the
requirements of all walks of human life.
Some of the laws relate to the natural urge in human beings to adore and
worship. It guides us to worship none but Allah, in the prescribed form, seeking
His pleasure. Then there are laws which prompt us to serve, be helpful and
useful to human society, at the same time affirming our obedience to Allah.
These are Zakat, Khums, our social and political duties, Jihad, Amr bil Ma'roof
and Nahy anil Munkar, training in martial arts etc.
Other laws enunciate man's duties towards oneself like refraining from suicide
or harming oneself or even avoiding celibacy. Certain laws deal with human life
in relation to nature surrounding him like food, drinks, hunting, slaughtering,
dresses, use of utensils and so on. Then there are laws of judiciary, requital
As for personal life, Fiqh guides us in matters of NIKAH, TALAQ, DHIHAR, and
LIAN. In matters of economy and earning one's bread, there are rules governing
business, partnership, silent partnerships, bankruptcy etc. Fiqh also deals with
such versatile acts like Haj which apart from being an act of worship, is an
opportunity of unity, collaboration and an international conference.
In spite of this diversity, FIQH has one single aim. To lead human beings to
happiness on earth, conjoining it with salvation in the hereafter. Therefore,
FIQH is considered as one, composite science of ISLAM and is taught as such in
the Hawzas. The basis of FIQH is the Holy Quran, the sound Traditions, Consensus
and Reason. A FAQEEH looks at the diverse component of FIQH as parts interwoven
into one fabric, with a single aim to guide mankind in respect of its duties and
responsibilities towards Allah.
Chapter 1 : FIQH
This system commonly known as ILM UL FIQH, is extensive, covering a very wide
range; and its history dates back to the earliest Islamic era. It has been
taught with great detail and ramifications in every era, producing several
jurisconsults of repute during every century. Among the jurists, known as FAQIH
(pl. Fuqaha) some were genius. A number of volumes have appeared to elucidate
the Islamic jurisprudence, some of them are masterly treatment of the laws on
every walk of human life.
Most of the problems confronting human society are dealt with by various laws,
like, the civil laws, he family laws, the penal code, the management laws, and
so on. Fiqh deals with all of them under various chapters, and in different
names. Moreover, it deals with such laws which are not covered by the modern day
laws, like the ones related to the acts of worship. Because of a very wide range
of subjects covered by Fiqh, it actually includes numerous faculties which are
normally learnt separately today.
The term 'FIQH' in the Quran & Hadith
The word 'FIQH' and its derivation 'TAFAQQUH' has been extensively used in the
Quran and Hadith, and in almost all cases it denotes in depth study and profound
understanding. The Quran says:
"If a group of people from every tribe stayed behind to study (and ponder on)
the religion, (they would be able) to warn and admonish their people when they
return to them so that they are cautious." (Al Tawbah. V.122)
And the Prophet (s.a.w) is reported to have said:
"Whoever commits forty Hadith for the sake of my Ummah shall be resurrected by
Allah as a learned FAQIH."
It is not known whether the term FAQIH was applied to the learned companions of
the Prophet (s.a.w). However, we certainly know that the generation which
followed the companions, known as TABE'EEN, used this appellation for a number
of scholars among them. There were for example, seven great jurists among them
who are known as 'FUQAHA SAB'AH' i.e. the seven fuqaha.
The year 94 A.H. was known as 'SANATUL FUQAHA' (the year of the Fuqaha) because
in that year, together with our fourth Imam, Ali b. Hussain (A.S.), great
jurists like Saeed b. Musayyab, Urwah b. Zubair, Saeed b. Jubayr and others
died. Thereafter, great Islamic scholars, particularly the jurists were commonly
classified as Fuqaha.
Our Imams (peace be upon them) have used the term Faqih quite often. Some of
their companions were recommended to study religion thoroughly and become Faqih,
and when they attained that degree of knowledge, they were called FUQAHA. We
know of quite a few students of our Imams (A.S.) who were known as Shiah Fuqaha
by their contemporaries.
The term FAQIH as elucidated by Islamic Scholars.
In the Quran and Hadith, Fiqh denotes profound understanding and knowledge of
Islamic fundamentals and laws, and is not confined to any particular branch of
religious sciences. But with the passage of time, the word become synonymous
with the knowledge of Islamic laws and jurisprudence. The Ulema have divided
Islamic teachings into three groups:
Principles of Faith
These are the fundamentals which are related to one's faith, like the belief of
God, the resurrection and the Day of Judgement, the Prophethood, the divine
revelation, the Angels, the Imamat. Moral behaviour and ethics
These are aimed at improving human behaviour) and cultivating spiritual aspects
of our existence. They deal with TAQWA, Justice, Generosity, Bravery, Patience,
Submission to the Will of Allah, and so on.
These deal with the rules and regulations laid down for certain acts, and also
provide guidelines for the way these acts be performed. The Fuqaha of Islam have
restricted the use of the word FIQH to the third category, perhaps because it
has been a matter of popular concern, and that the believer sought such guidance
more often. This is why men of proficiency in this branch of Islamic knowledge
only came to be known as 'FUQAHA'.
Hukme TAKLIFI & Hukme WADH'EE
It is important that we are acquainted with some of the terminologies used by
FUQAHA in relation to Islamic laws. The divine laws are divided by them in two
groups: TAKLIFI and WADH'EE.
TAKLIFI laws are WAJIB, HARAM, MUSTAHAB, MAKROOH and MUBAH. These are five
aspects of Islamic laws which a Muslim has to keep in mind while discharging his
In Islam, every human act will fall in one of these five categories. There are
acts which are WAJIB, which must be performed as an obligation, like the daily
prayers, as opposed to those which are HARAM and forbidden, like speaking lies,
being unjust, intoxication, and so on. Then there are acts which are optional.
They are recommended acts which are rewarded, but if not performed, no sin is
committed. The example is optional prayers (NAFILAH) which either precede or
follow the daily prayers.
On the other hand, there are certain unworthy acts, i.e. MAKROOH, which a Muslim
is advised to avoid, but no sin is committed if he engages in them, like talking
about worldly affairs in the Mosque which is supposed to be a place of worship.
Besides, there are acts which are MUBAH, meaning permissible acts, doing or not
doing of them does not entail any reward or punishment.
Thus, we see that Taklifi laws are based on 'do's' and 'don'ts', enjoining,
forbidding, or generally permitting a Muslim.
WADH'EE laws are an amalgam of temporal and divine laws, partly governed by
natural or moral duties, like matrimony, proprietorship, contracts and so on.
TA'ABBUDI and TAWASSULI
The obligatory (WAJIB) acts are of two types: TA'ABBUDI and TAWASSULI.
Those Wajib acts which must be performed with a vivid and clear intention
(NIYYAT) of earning the pleasure and proximity of Allah (QURBAT) are TA'ABBUDI.
Such a niyyat is a prerequisite, in absence of which the act would be considered
invalid. The examples are all acts of worships, like the daily prayers, fasting
But there are other obligations which do not necessarily require the intention
of QURBAT for their validity, like obedience to the parents, fulfilling promises
and pledges, honouring the contracts, performing incumbent social
responsibilities and so on.
AYNI & KIFAI
WAJIB acts have been further classified as AYNI and KIFAI:
Wajib e Ayni are those obligatory acts with which every individual Muslim is
charged, like the daily prayers and fasting during the month of Ramadhan. But
Wajib e Kifai remains a collective obligation on the general Muslim populace,
until it is performed by one or few among them, thus relieving the rest of the
Like the social obligations of qualifying as a doctor, becoming a soldier, a
judge, a farmer or a businessman, and in this form of obligation is included the
rituals of Ghusl e Mayyit, kafan and burial etc.
TA'YINI & TAKHYIRI
This is yet another classification of WAJIB acts. Wajib e Ta'yini relates to
those particular acts which have been specifically identified as obligatory,
like the daily prayers, fasting, Haj, Khums, Zakat, Amir bil Maroof, Jehad etc.
But Wajib e Takhyiri offers choice and alternatives, like in the case of kaffara
for a person who has deliberately left out a fast in the month of Ramadhan. He
will either free a slave, or feed sixty deserving poor, or keep sixty fasts.
NAFSI & MUQADDAMI
In this classification, NAFSI Wajib acts are those which are obligatory by
themselves, and are not a prelude to another obligation. For example, it is
Wajib to rescue a person who is on the verge of being burnt, drowned or harmed
Muqaddami obligation, besides being Wajib itself, is actually a mean to
performing another Wajib act. For example, it is Wajib to rescue a person who
has fallen into a well, but preparing for the rescue by way of procuring a rope
or any other implement is a Muqaddami Wajib. Similarly, Haj is a NAFSI Wajib,
but attending to its prerequisites like getting a passport, buying the tickets,
and other necessary preparations will be termed Muqaddami. In the case of the
daily prayers, for example, Wudhu and Ghusl at the time of the prayers would be
Chapter 2 : THE FUQAHA
To understand any system thoroughly, it is imperative to get acquainted with its
scholars, particularly those who have made significant contribution to its
development. And in the course of that study, one comes across their important
works which over a period have become the sources of reference.
Ilmul Fiqh was meticulously recorded to form a valuable literature during the
last eleven centuries, which still exists, and has been constantly studied in
the Islamic seminaries. Eminent scholars were able to train numerous students
who in turn trained their students in this branch of Islamic knowledge. This
tutor pupil chain has remained unbroken till today.
No doubt, other sciences like Philosophy, Logic, Mathematics and Medicine are
much older and volumes written on those topics date much earlier. Yet they
cannot be compared to FIQH which has been a growing science with a continuous
line of tutor pupil relationship. Of course, we make this assertion keeping the
Islamic colleges in view.
It has been a fortunate practice of Muslim scholars that they always identified
great scholars according to the generation to which they belonged. This was
first done in respect of Ulama of Hadith, to be followed later for the Ulama of
other branches of Islamic learnings. Special books were written to categorise
the generations, like TABAQATUL FUQAHA by Abu Ishaq Shirazi, TABAQATUL ATIBBA by
Ibn Abi Usayaba, TABAQATUL NNAHWIYYIN and TABAQATUL SSUFIYYA by Abu Abd al
However, as far as the generation of FUQAHA is concerned, the works which exist
are those written by Sunni scholars. We do not know of any Shia work on the
subject, with the result that we have to rely on various biographical sketches
and other books of IJAZAT wherein tutors have certified the abilities of their
pupils and allowed them to transmit the Traditions further to their students.
In the following paragraphs, we wish to acquaint ourselves with some of the most
outstanding FUQAHA of Shia sect, together with their notable contributions. In
so doing, we hope to identify them in accordance with the generations to which
For two obvious reasons, we have to begin the history of Shia FUQAHA from the
era of GHAYBAT e SUGHRA, i.e. minor occultation. (260 AH 329 AH). First, the
era preceding GHAYBAT-e SUGHRA is an era during which the holy Imams were
present, and although there were many men of knowledge and accomplishments who
were trained by the Imams themselves, people always tried their best to refer to
the Imams rather then to the Ulama. Even the Ulama travelled far and wide to
reach the Imams, so as to solve the problems they faced.
Thus, in the era when Imams were present and accessible, other scholars were
eclipsed. Secondly, the literature we have at our disposal on FIQH commences
from the era of GHAYBAT e-SUGHRA. We cannot trace, or rather are unable to
trace, any literature compiled on the subject in the earlier era.
However, many great FUQAHA lived in the period of our holy Imams, and they are
well known for their distinction and excellence when compared to their
contemporaries from other schools of thought. Ibn al Nadeem in his famous AL
FIHRIST has a complete chapter on the FUQAHA of Shia, and mentions their works
on FIQH or Hadith with deep reverence.
For example, for Husain b. Saeed Ahwazi, he says: " In his time, he had the
widest knowledge of FIQH, Islamic Traditions and Ethics". Similarly, he
eulogises Ali b. Ibrahim Qummi by saying: "He is among the great scholars and
FUQAHA". Again, when mentioning Muhammad b. Hasan b. Ahmed b. al Waleed Qummi,
he says: "To his credit is the great and comprehensive work on FIQH".
It must be known that the works on FIQH to which reference has been made above
were of a different nature. They were principally compilation of those Hadith
which they believed to be sound and authentic and according to which they acted.
So, they can safely be categorised as the books of Hadith bearing a stamp of the
writers' considered opinions.
Muhaqqiq Hilli, the maternal uncle and teacher of Allama Hilli writes:
"In view of the fact that we have a great number of FUQAHA who have copiously
written on the subject, it is not possible for me to quote all of them. I have
selected from those who were best known for their research and scholarship,
quoting their Ijtehad, and the opinions they adopted for action.
From amongst the earlier ones, I have selected Hasan b. Mahboob, Ahmed b. Abi
Nasr Bezanti, Husain b. Saeed Ahwazi, Fadhl b. Shadhan Nisaburi, Yunus b. Abd al
Rahman. They lived during the presence of our Imams. From the later group, I
quote Muhammad b. Babawayh Qummi (popularly known as Shaikh Sadooq) and Muhammad
b. Yaqoob Kulaini.
As for the people of Fatwa, I consider the verdicts of Askafi, Ibn Abi Aqeel,
Shaikh Mufeed, Seyyid Murtadha Alamul Huda and Shaikh Tusi." Evidently, Muhaqqiq
Hilli, despite his high regard for the earlier Ulama and for their independent
opinions, excludes them from those who he calls "the people of Fatwa". This is
because the earlier Ulama wrote books in the form of collections of Hadith,
indirectly indicating their opinions and verdicts by the selection of those
Traditions which they considered sound. Their works never came out in the form
of clear and direct fatwa.
We have briefly introduced 40 great lives from the world of FIQH, starting with
the era of Ghaybat e Sughra till the onset of fifteenth century Hijra. These
were the prominent jurisconsults of Shia sect whose names and works have
guaranteed the life and growth of Islamic Shariah. However, it must be mentioned
that there were many others whose contributions cannot be underestimated, and
some o them have been referred to in this brief treatment. Following important
points emerge from the above:
a) Fiqh has had a continuous growth right from the third century Hijra, and it
has been taught and developed incessantly in the great Shia seminaries. If we
were to take the example of Ayatullah Seyyid Abul Qasim El Khoee, we can connect
him upwards with his masters one generation after another, forming a glorious
chain which links with the era of our Imams (AS). This continuity is unique in
Islam and what is more noteworthy is that the continuity made Islamic guidance
available to the Ummah at all times and in varying circumstances .
The reason for starting from the third century Hijra is not because no FUQAHA
existed before that time. It is because the era earlier than Ghaybat e Sughra
was the era of our Imams (AS) and in their presence FUQAHA obviously were
eclipsed. However, we know their namev and we also possess a list of their works
on fiqh. For example, the earliest work on record is the book on Fiqh written by
Ali b. Rafe' who lived during the time of Imam Ali b. Abu Talib (AS). Ali b.
Rafe's brother Abdullah was Imam Ali's (AS) scribe as well as official in charge
b) It is not true to say that fiqh and other Shia teachings were promulgated by
the Iranians alone. Till tenth century Hijra, the contribution mainly sprang
from non Iranian sources. Later, during the Safavid rule in Iran, Iranian
scholars became major contributors.
c) Iran has not always been the centre of FIQH. In fact, the earliest organised
Shia Centre of FIQH is traced in Baghdad, followed by Najaf during the days of
Shaikh Tusi. Later, it was matched by Jabal Amel (Lebanon), Hilla (Iraq) and
Aleppo (Syria). Isfehan (Iran) became known as a centre of FIQH during the
Safvid regime, but at the same time Muqaddes Ardabili revived the Hawza of
As far as Qum is concerned, it had a progressive Hawza during the bloom of
Baghdad, centred around personalities like Ibn Babawayh, Ibn Qawlawayh and
others. Then there was a period of decline, till its regeneration during the
Qajar dynasty, under the supervision of Mirza Abul Qasim Qummi, the author of
With the growth of Hawza in Najaf, Qum again withered away till the third
revival took place under Shaikh Abdulkarim al Haeri in 1340 AH. Today, as we pen
these lines, Qum is the greatest seminary of FIQH and other Islamic branches of
knowledge. With the onslaught of BA'THIST infidelity in Iraq, the Hawza of Najaf
has disintegrated. Hopefully, this is one of the temporary phenomena which make
their appearance in history. Allah knows best, and upon Him we rely.
No doubt, the growth of smaller Hawzas in Iran had been noticeable, and they
were quite prolific. Mention should be made of FIQH being taught at its highest
level in MASH HAD, HAMDAN, SHIRAZ, YAZD, KASHAN, TABREEZ, ZANJAN, QAZWAIN, and
KHWANSAR. But these never grew up to reach the magnitude of Hawza in Qum.
d) It must be acknowledged that the impact of FUQAHA of JABAL AMEL, like
Muhaqqiq Karaki and Shaikh Bahai, has been great and decisive. The Safavids
themselves, as it is known, were more inclined towards TASAWWUF and mysticism.
Had it not been for these FUQAHA who decided to migrate and live in Iran,
establishing the great college of Isfehan, Iran would not have been what it is
today in as far as promulgation and development of FIQH is concerned.
e) As Shakeeb Arsalan has mentioned, Shia School in Jabal Amel is centuries
older than the one in Iran. Some historians have indicated that the school of
Ahlul Bait (AS) in Jabal Amel was established by Abu Dhar Ghifari, the noble
companion of our Prophet (s.a.w). Abu Dhar lived in Sham which in those days
included all or parts of Lebanon, condemning the wealth being unscrupulously
amassed by Mua'wiyah and his lackeys, at the same time preaching the Shia faith.
Chapter 3 : THE CHAPTERS AND TITLES IN FIQH
As mentioned earlier, the range of topics covered by Fiqh is very wide. It is
therefore necessary to briefly acquaint oneself with the chapters and headings
of these subjects. The only subjects which are outside the pale of Fiqh are the
fundamentals and the Islamic ethics.
It must be noted that the classification of the subjects under Fiqh was first
organised by Muhaqqiq Hilli in his famous work 'SHARAE', and later, 'SHAHEED E
AWWAL', glossed over it. He divided the topics into four parts: IBADAAT, (acts
of worship), UQOOD (contracts), IQAA'AT(pronouncements) AHKAM (the laws).
IBADAAT All those acts which ought to be performed as prescribed in Sharia, and
must be preceded by the NIYYAH of QURBAT are known as IBADAAT. e.g. daily
prayers, fasting, Haj etc.
AHKAM Those duties which are to be discharged according to Sharia, but do not
necessarily require any NIYYAH of QURBAT nor do they require any pronouncement
of specific formula while performing them are called AHKAM. For example, the
laws of inheritance, the penal code, the laws of compensation and blood money
UQOOD Those contracts of Sharia which do not require the NIYYAH of QURBAT, but
are to be declared with the pronouncement of a formula in which one party
declares the intention and another responds by acceptance, are called AQD (pl.
UQOOD) for example, Marriage (Nikah), Ijarah (letting or leasing), Bay' ( buying
and selling) etc.
IQA'AAT Those pronouncements which do not require participation of two parties.
In other words, a person pronounces it unilaterally, and the act is considered
valid in Sharia. For example, remission of debt (releasing a debtor from his
liabilities), divorce, and releasing a slave etc. Muhaqqiq Hilli has discussed
all the four categories under forty eight Chapters. In Ibadaat, he has ten
chapters, in Uqood fifteen, in Iqa'aat eleven and in Ahkam twelve. Later, these
numbers have had some alterations which we shall notice in the course of our
In the early era, that is, the first and the second century Hijra, the FUQAHA
chose one or two topics of FIQH and wrote about them. They did not venture to
write a comprehensive work covering the whole range. As we study their lives, we
find that they have authored books on SALAT, IJARAH, NIKAH and so on. Instead of
stating that they have dealt with a particular chapter in FIQH, they named each
separate treatise as KITAB. Thus, we come across 'KITBUN NIKAH', 'KITABU
TTAHARAH' and so on.
Let us now examine how Muhaqqiq Hilli divided IBADAAT in ten chapters.
Chapter 4 : IBADAAT
First Chapter KITABU T TAHARAH
Taharat means cleaning from the impurities, which are of two types: KHABATH and
Those impurities which have been specified as inherently NAJIS like urine,
excrement, blood, semen etc. are called KHABATH. When our bodies or clothes come
into contact with them, they have to be made clean. Then there are certain acts
of Taharat which are ritual and are a prerequisite to the acts of worship like
Namaz and Tawaf. These are WUDHU, GHUSL or TAYAMMUM. They are invalidated by
natural causes like sleeping, urinating or entering into a state of JANABAT, and
they have be reinstated.
Second Chapter KITABUS SALAAT
In this chapter, various prayers like the daily Namaz, Namaz of Idd, Namaz e
Mayyit, Namaz e Tawaf, Nafila etc are outlined. Then the laws which explain the
prerequisites of SALAAT, and the acts which invalidate the prayers are
elaborated. Details are given about Namaz in one's own home town, Namaz of a
traveller, Namaz prayed alone, and the one in congregation (JAMAAH), Namaz
prayed on time, and those as QADHA.
Third Chapter KITABUZ ZAKAH
In this chapter, various types of wealth tax are discussed, especially the one
whicll is applied to Gold, Silver, Wheat, Barley, Dates, Grapes, Cattle (big and
small) and Camels. Details of percentage levied, and the ways of spending Zakat
are also explained.
Fourth Chapter KITABUL KHUMS
Khums means one fifth (20 and is also a type of wealth tax. According to SUNNI
FIQH, this is applicable to the spoils of war only. But in our FIQH, the spoils
of war are just one of the many other incomes and accruals on whicl1 ICHUMS is
to be paid. For example, the minerals, the treasures, the wealth which is mixed
with HARAM in a manner that it cannot be extricated, and its rightful owner
cannot be traced, the wealth acquired by diving, and the net savings and profit
in businesses etc.
Fifth Chapter KITABUS SAWM
This chapter deals with the laws governing fasting, and distinguishes obligatory
fasts of the month of Ramadhan from other categories. For example, the forbidden
fasts on IDD days, the MAKROOH fast on ASHURA day, and so on.
Sixth Chapter KITABUL I'TEKAF
Literally, it means to retire into a place. In FIQH, it is a form of worship.
When a person wishes to do I'TEKAF, he has to retire into a mosque for three
days or more, and fast for three days. He remains secluded, not stepping out of
the mosque. This act is optional in itself, but if one commences it and
continues for two days, then it is WAJIB to complete the third day.
Originally I'TEKAF was to be observed in MASJIDUL HARAM (i.e. Makkah), MASJIDUL
NNABI (i.e. Madinah), MASJID of KUFA. But it is also allowed in the central
mosques of any town or city, excluding small mosques. The Prophet (s.a.w.)
always observed I'TEKAF in the last ten days of holy RAMADHAN.
Seventh Chapter KITABUL HAJ
This deals with all the obligatory and optional acts, during pilgrimage to
Makkah, like wearing IHRAM, TAWAF, NAMAZ OF TAWAF, WUQOOF at ARAFAH, MASHAR,
Eighth Chapter KITABUL UMRAH
It is a smaller or lesser Haj, and it is obligatory for the Hajis who must
perform it first before proceeding to complete the Haj. It consists of Ihram,
Tawaf, Namaz of Tawaf, Saee', Taqseer.
The acts of Umrah are performed in the following order:
Two Rakaats of Tawaf
Saee (between SAFA and MARWAH)
In Haj, the order is as follows:
b) Wuqoof at ARAFAH
c) Wuqoof at MASHAR
d) RAMI of the last JAMARAH at MINA
e) Sacrifice of animal
f) To shave off the hair, or cutting nails etc.
g) Tawaf of Haj
h) Two Rakaats for Tawaf
i) Saee' for Haj
j) Tawaf un Nisa
k) Two Rakaats for Tawaf un Nisa
l) Staying at night in MINA m) Rami of all JAMARATS in MINA
Ninth Chapter KITABUL JIHAD
This chapter deals with the holy wars which is deemed absolutely necessary for
the preservation of security and welfare of a society. Jihad can be of two
types: One initiated and another defensive. Shia FIQH stipulates that in order
to initiate a Jihad, consent must be had from the Prophet (s.a.w) or any Masoom
Imam. As for the defensive holy war, it can be waged as and when it becomes
necessary. This chapter also deals with the laws pertaining to DHIMMIS who seek
refuge under an Islamic state, and about truce and peace treaties between
Islamic and non Islamic countries.
Tenth Chapter AMR BIL MA'ROOF and
NAHY ANIL MUNKAR
In an Islamic society, it is the responsibility of every Muslim to enjoin good
and forbid evil. Of course, there are conditions and regulations for carrying
out this duty. This chapter deals with them extensively.
Chapter 5 : UQOOD
Muhaqqiq Hilli has divided this into fifteen chapters.
Chapter One KITABU TTIJARAH
It deals with purchase and sale, conditions of transactions, types of
transactions like cash or credit sales, profits, usury, and so on. It also
explains rules of contracts, pronounced or by conduct.
Chapter Two KITAB AL RAHN
Deals with buying or selling a mortgage.
Chapter Three KITAB AL MUFLIS
Muflis means a bankrupt, who cannot pay off his debts. The Islamic jury would
immediately issue an order to restrain such a person from using his wealth till
such time when a thorough assessment has been made, and possible payments to the
creditors have been arranged.
Chapter Four KITAB AL HIJR
It is an interdiction where an owner of wealth or property is restrained from
having any say in its use, like in the cases of a bankrupt, a minor, an insane
person, a dying person who intends to will beyond his right of one third, a fool
Chapter Five KITAB AL DHAMAN
It means a warranty or guarantee. In Shia FIQH, a guarantor becomes responsible
for the debts, to the exclusion of the debtor, but the guarantor can call for
reimbursement from the debtor. Muhaqqiq Hilli has included all sureties and
promissory notes in this category.
Chapter Six KITAB AL SULH
Sulh here does not mean peace agreement or truce. It actually means settlement,
concession or compromise. For example, to settle a debt whose exact figure is
not known by offering a certain sum, and so on.
Chapter Seven KITAB AL SHARIKAH
It means joint ownership, like in the case of inheritance. As long as it has not
been divided, it belongs jointly to all the heirs. It also means partnership.
Interestingly, there are cases of unwilling partners, when wheat owned by one
person gets mixed up with wheat belonging to another, and separating is
impossible. Partnership in businesses, industries and agriculture are contracted
by an agreement.
Chapter Eight KITAB AL MUDHARIBAH
It is a partnership between capital and labour. When a man or a group of men
investing their capital for a business, enter into an agreement with those who
will put in their labour or will manage, they must first agree about the share
of dividends, and then either pronounce a formula for MUDHARIBA, or make some
Chapter Nine KITAB AL MUZARI'AH OR
This is a type of MUDHARIBA, but with a difference. Instead of an arrangement
between a businessman, an industrialist and a worker, it is an agreement between
a landowner and a person who will work to till the land and carry out
plantation, with a clear understanding about profit sharing when the harvest is
ready. MUSAQAT is an arrangement between the farmer or garden owner, and the
worker who undertakes to water the garden etc
and do all such work which would help the harvest or fruition. Again, it is
absolutely necessary that a prior agreement on the proportion of profit to be
shared by each is reached. In MUDHARIBAH, MUZARIAH and MUSAQAT, the profit,
little or more, is proportionately shared, but the losses are borne by the
Chapter Ten KITAB AL WADEE'AH
This is just like AMANAT, where a person deposits his property in trust with
another person, making him responsible for its protection and security. This
chapter deals with the responsibilities of the trustee, particularly in the
circumstances of loss or damage.
Chapter Eleven KITAB AL ARIYAH
To borrow something from a person, with an intention of benefiting from it. The
difference between this and WADEEAH is that in WADEEAH a person is given
something to hold in trust, with no permission to use it in any way; while in
ARIYAH, a person agrees to lend his property to another person with a clear
understanding that the latter will use it to derive some benefit. Simple example
are lending a car to someone for his use, lending clothes for wearing etc.
Chapter Twelve KITAB AL IJARAH
To hire, or give on rent. This is done in two ways. Either one gives away his
property to another for use against an agreed sum of rent, or one undertakes to
complete a certain peace of work against payment. This arrangement has one
common feature with ordinary purchase and sale in both the cases, something is
given in return. The difference is that in any business or sale, a commodity is
exchanged with money or its value, while in IJARAH, the property itself is not
exchanged, but its utilisation or benefit is hired or rented out.
Chapter Thirteen KITAB AL WAKALAH
To appoint someone authorising him to enter into a contract on one's behalf or
to make a certain commitment. The example is when a WAKIL is appointed for
Nikah, Ijarah, Selling, Divorce, etc.
Chapter Fourteen KITAB AL WUQOOF &
This deals with endowments and charities. WAQF means to exclude ones own
property from ownership and give it away for a particular use. In other words,
it is an endowment settled for public use. Many laws govern this act, and FUQAHA
debate over whether WAQF requires an intention of QURBAT or not. Then there are
laws about WAQF KHAS (family endowments) and WAQF AAM.
Chapter Fifteen KITAB AL SUKNA WAL
It is another type of endowment but with a difference. While WAQF is permanent,
where the owner gives away his property forever, SUKNA is a temporary
arrangement. In it, a person gives away his abode or house to a deserving person
for a fixed period of time. When the time expires, the property is restored to
him, as its rightful owner. HABS means a temporary bequest for charitable
purposes. In this arrangement, the property itself is not given away; only its
accruals or benefits are bequeathed for a certain period, upon expiration of
which the benefits revert to the owner.
Chapter Sixteen KITAB AL HIBAT
Deals with the gifts. One can only settle a thing which he rightfully owns as a
gift. They are of two types: a gift given in exchange or a gift given away
without any return. Gifts given in exchange or substitute cannot be claimed
back, but that which is given away without any exchange can be claimed back. But
if this unconditional gift has been settled on ones own relatives, or if its
original form has been changed or destroyed, then it cannot be reclaimed.
Chapter Seventeen KITAB AL SUBQ WA
Deals with racing and shooting, a chapter which falls under subsidiary laws of
JIHAD. Islam forbids wagering, betting or staking, but allows training for
racing or shooting or marksmanship as a prelude to military skills.
Chapter Eighteen KITAB AL WASIYYAH
This relates to making of the Will, testament etc. in respect of one's estate
and minor heirs. Man has a right to appoint an executor or administrator for the
purpose. He can direct the appointee to look after his minor children, educate
them and provide them with necessary training. Similarly, he can direct him to
use upto 1/3 of his estate in the manner he, the testator, prefers.
Such directives are of three types: One is related to distribution of his money
and property, another can be about performing certain duties, like Haj, Ziyarat,
Qadha Namaz, Fasts, etc. The last one concerns releasing from the bondage, like
when he directs that a particular slave be set free upon his death.
Chapter Nineteen KITAB AN NIKAH
Marriage Contract. In this chapter, Fuqaha discuss several aspects, including
the conditions, the types of woman or man one can marry, prohibition in
marriage, temporary marriages, permanent marriages, maintenance of the wife and
the children and so on. Though Muhaqqiq Hilli had enumerated 15 chapters, we
observe that there are more. Possibly, Muhaqqiq amalgamated certain chapters
under one heading.
Chapter 6 : IQAAAT
Muhaqqiq divided these into eleven Chapters. In IQ'AA pronouncing a formula is
necessary, but it does not have two sides. It is done unilaterally.
Chapter One KITAB AL TALAQ
Dissolution of marriage It is either Absolute (Bain) or Revocable (Raje'e). The
revocable Talaq is that in which the husband has the power of revocation during
the IDDAT period, while in the absolute, the husband has no power of revocation.
This chapter discusses all the laws in this connection. It also sets down all
the conditions for Talaq to be valid.
Chapter Two KITAB AL KHULA' &
These are two other types of absolute divorce. Khula' is when wife has a dislike
for her husband and asks him to divorce her in exchange of a sum, or all or part
of her MAHR. In such a case, when the husband agrees to divorce, he forfeits the
power of revocation, except when the wife agrees to take back the money or
ransom she gave.
Mubaraat is when dislike is mutual, and in this case also the wife has to pay
some ransom to the husband. However, the ransom paid in the case of Mubaraat
should not exceed the Mahr. This divorce is also absolute.
Chapter Three KITAB AL DHIHAR
In the pre Islamic era, when husband said to his wife "you are on me like the
back of my mother", it was construed as Divorce. Islam has effected an important
change. It does not recognise DHIHAR as a form of divorce, but whoever does this
ought to pay KAFFARA before he can resume conjugal relations with his wife. This
kaffara is freeing a slave, and if that is not possible, he svill fast for two
consecutive months. And if that is not possible also, then he should feed sixty
Chapter Four KITAB AL EELA'
It is an oath by God, wherein the husband swears that he would never have
conjugal relation with his wife, or that he would not have the relation for a
period exceeding four months. In such a case, when the wife complains to Hakime
Shara', the husband would be given a choice either to divorce her or to abrogate
the oath. Naturally, if the husband abrogates the oath, he will pay the
expiation (kaffara). In general, Islam forbids abrogating the oaths, but in this
case it recommends.
Chapter Five KITAB AL LIAN
This chapter deals with the slander or denial of a child. The law of accusing
someone without adequate proof etc. are also discussed. Husband stands before
Hakime Sharia and pronounces LIAN, saying four times: "God is my witness, that I
am truthful in my accusation against my wife". Then he says: "May God curse me
if I were not speaking the truth". Thereafter, the wife says four times: "God be
my witness that my husband has lied and accused me wrongly". Then she adds:
"Curse of God befall me if I was lying". When this process is complete, the
marriage is irrevocably dissolved.
Chapter Six KITAB AL ITQ
It discusses about freeing the slaves. Islam does not encourage slavery, that is
why we do not find a chapter on 'al Riqq', (enslaving); the only chapter is 'al
lTQ' (freeing, liberating). The chapter outlines circumstances in which the
slaves are voluntarily or automatically liberated.
Chapter Seven KITAB AL TADBEER, MUKATIBAH & ISTEELAD
This chapter deals with specific circumstances whicl1 lead to freeing the
slaves. Al TADBEER is when the master makes a will stating that his slave will
be free upon his death. MUKATIBAH is when a slave wishes to enter into an
agreement witl1 his master that he be freed in exchange of some consideration.
The Holy Quran says that if the master finds the slave capable and righteous, he
should accede to the wishes of the slave, and also endow him with some of his
ISTEELAD is an automatic process. When a female slave, for example, becomes
pregnant by her master, such a female slave will revert to her offspring upon
her husband's (master's) death. And since she is the mother, and Islam does not
allow anyone to be a slave of his or her forebearers however high, and
descendants however low, the female slave will automatically be free.
Chapter Eight IRITAB AL IQRAR
It deals with admission and is connected with the judiciary. When a person makes
a claim against someone and has no evidence or witness to substantiate it, the
claim is not admissible. But if the debtor himself wishes to admit the debt,
which is IQRAR, then it is deemed adequate.
Chapter Nine KITAB AL JIALAH
It means offering a wage or reward. Apparently, it resembles the act of hiring a
worker or a labourer for a particular piece of work against agreed amount. But
in JIALAH, the employer does not hire a particular person, he makes a public
announcement stating that whoever would do a certain job for him, he would pay
him a certain amount.
Chapter Ten KITAB AL AYMAN
AYMAN is plural of YAMEEN, which means an oath. In this chapter, the sanctity of
a religious oath, taken in the name of Allah, is discussed. It describes the
implication of taking an oath in the name of Allah, the types of oath, perjury
and the expiation for one who breaks the oath.
Chapter Eleven KITAB AL NADHR
NADHR is a solemn vow, or pledge made in the name of Allah. It explains the
formula which one has to pronounce or at least to have it in mind before NADHR
is formally established, and the occasions for NADHR. A Nadhr made for a MUBAH
(ordinarily permissible) thing, having no legitimate benefit here or hereafter,
is not valid. Both oath and NADHR are a covenant made witl1 Allah and they must
Chapter 7 : AHKAM
Muhaqqiq Hilli has given the above name to this category, since the topics which
fall under it are neither acts of worship nor contracts or unilateral
pronouncements. He has divided this into 12 chapters.
Chapter One KITAB AL SAYD AND AL DHABAHA
This chapter deals with hunting and slaughtering of those animals whose meat we
are allowed to eat. SAYD is hunting, DHABH is slaughtering. An animal who has
not been hunted as prescribed in Sharia, or has not been slaughtered as guided
by Islam, will be 'MAYTAH', a corpse which is NAJIS, and HARAM to eat. This
chapter also deals with the hunting of wild animals by trained hunting dogs.
Chapter Two KITAB AL AT'IMAH AND AL ASHRIBAH
This chapter deals with those things which we are allowed to eat or drink, and
those which are forbidden. A detailed treatment is given to animal food, sea
food, non animal food and so on. It also explains and categorises those animals
which are Halal and those which are not. And even in the Halal animals, it tells
us of those parts of the body which are HARAM to consume. It also gives rational
treatment to those acts which may be ordinarily permissible and harmless, but
are harmful for a particular person in a given circumstance.
Chapter Three KITAB AL GHASB
It means an illegal possession of property, or usurpation. As is known, GHASB is
Haram, but it must also be known that it involves a liability. That means if a
person usurps someone's property and if that property is damaged or destroyed
while still in his illegal possession, he is liable for it, even if he did not
directly damage or destroy it, but was instrumental in causing the damage or
Chapter Four KITAB AL SHUF'AH
Means the right of preemption. When a partner wishes to sell his share, the
remaining partner has a right of preemption for acquiring the share by buying it
at the price offered by others.
Chapter Five KITAB IHYA AL MAWAT
Mawat refers to the barren, uncultivated land. A land which has been developed,
either by building upon it or by cultivation is called "AMIR" in FIQH. The
Prophet (s.a.w) said: "Whoever gives life to a barren, uncultivated land, that
land belongs to him". This has numerous ramifications, explained under the
Chapter Six KITAB AL LUQTAH
This refers to things which are picked up by chance, and the owner is unknown.
This can apply to animals and non animals. If a stray animal is found which is
not in anyway endangered, then one should not take it into custody. But if it
faces any danger, then it can be possessed with the intention to return it to
its owner if found. If the owner is not found, then Hakime Shara' has to
authorise its use. This chapter also deals with non living objects, found in the
sacred precincts of Haram or outside, basing the guidelines on the value of the
Chapter Seven KITAB AL FARAIDH
It is an elaborate chapter dealing with the laws of inheritance. Heirs are
divided in three categories:
(1) Parents, children, grandchildren (when the children are not present) .
(2) Grandparents, brothers and sisters (and in their absence, their children).
(3) Uncles, aunts (both paternal and maternal) and their children.
The above heirs are by NASAB (i.e. consanguinity). There are heirs who inherit
by SABAB (i.e. affinity) like husband and wife. This chapter deals with various
cases of succession in great detail. The testator does not have the right to
will for more that one third of his or her estate, nor does he or she have any
right to fix up the shares of his or her heirs. The estate devolves on the heirs
according to Shariah.
Chapter Eight KITAB AL QADHA
It is a chapter on judiciary, with elaborate sets of laws. There are laws
governing the appointment of judges, their rights, their emoluments, and also
about disqualifications. In FIQH, it is stipulated that a Judge must be an
Chapter Nine KITAB AL SHAHADAH
About the witnesses, who constitute the evidence to substantiate a claim. The
onus of providing the evidence does not rest on the defendent. The chapter also
explains how, in certain cases, the defendent may be called upon to take an
Chapter Ten KITAB AL HUDOOD & TA'ZEERAT
Deals with punishment and retribution. These are of two types: HUDOOD and
TAZEERAT. HUDOOD are fixed punitive measures prescribed for specified offences,
like sodomy, false accusation of fornication, drinking alcohol etc., stealing,
belligerency and so on. TAZEERAT are such retributive measures which may vary
according to the decision reached by the judge who may aggravate or mitigate the
Chapter Eleven KITAB AL QISAS
It is a chapter on requitals. An elaborate discussion is carried out about the
crimes committed advertantly or inadvertantly, and in each case the extent of
requital is prescribed. Then there are laws of recompensing for those who are
murdered or are inadvertantly killed.
Chapter Twelve : KITAB AL DIYAT
It is a form of requital, but unlike QISAS, it is only monetary compensation.
Interestingly enough, a doctor's responsibility towards human life, and a
disciplinary action by a tutor have a place under this chapter. A doctor must be
qualified enough to treat a patient. If he is not and if the patient dies during
the treatment, he is liable for compensation. In any case, a qualified and
efficient doctor must absolve himself of the liability beforehand.
Similarly, a tutor carrying out corporal punishment must be careful not to
cripple or kill the pupil. If he does, he is liable for compensation. These are
dealt with in some detail.