New Index of the Chapters of Fiqh: New Catalogue of Jurisprudential Chapters

New Catalogue of Jurisprudential Chapters

Bibliographic Information

• Main Entry: Nakoonam, Mohammadreza (b. 1327)
• Title and Author: Al-Fahras al-Hadith li al-Fiqh al-Shi’i / Mohammadreza Nakoonam.
• Publication Information: Islamshahr: Sobh Farda Publications, 1393 (2014).
• Physical Description: 48 pages; 9.5 x 19 cm.
• ISBN: 978-600-7347-24-9
• Cataloging Status: FIPA
• Notes: In Arabic.
• Bibliography: Bibliography in footnotes.
• Subject: Ja’fari Jurisprudence — 14th Century
• Library of Congress Classification: BP183.5 / N8F9 1393
• Dewey Decimal Classification: 297.342
• National Bibliography Number: 3633843

Introduction

In linguistic terms, fiqh refers to understanding, and in jurisprudential terminology, it denotes the knowledge of specific legal rulings derived from their detailed proofs. Fiqh can also be understood as the science of the path to the afterlife and acquiring a virtue that enables one to comprehend the realities of worldly matters, recognizing the subtle ailments of the soul, such that the heart is overwhelmed with fear, turning away from ephemeral matters and towards the everlasting ones.

Before delving into fiqh, it is essential to categorize its sections and issues, define its boundaries, and arrange its books in a manner that aligns with reality and corresponds to the external world. The definition of fiqh should center around the fundamental principles and methods that shape its scope, distinguishing between its topics and rules, including what falls within its domain and what lies outside it.

Most jurists, especially the later ones, confined fiqh to four sections: worship, contracts, declarations, and rulings, as seen in Al-Shara’i and Al-Qawa’id by the First Martyr. However, the proper classification should be based on the material and substantive nature of the issues rather than on individual considerations.

The important aspect of fiqh arrangement is to focus on its essential nature, considering the conventional and natural aspects of the discussions and categories rather than the formalities like individualism. Therefore, fiqh must be revitalized, recording its numerous, ever-expanding issues, with precise attention to Shi’a jurisprudence, in accordance with existing resources and prevalent legal principles. It should eliminate unnecessary and weak discussions while incorporating significant and contemporary issues, particularly new developments and obscure matters, which should be clearly defined in terms of both their subject and ruling. Additionally, distinctions should be made between issues shaped by time and place, separated from timeless rulings based on fixed topics and criteria. The judgment in established rules is generally consistent with what is accepted in all cases, except when caution or fear of persecution leads a jurist to differ.

After all of this, this work presents a new index for Shi’a jurisprudence, differing from the traditional one established by earlier scholars, which later jurists have adopted.

Fiqh Overview

Before engaging in fiqh, it is essential to divide its topics and issues, define its limits, and arrange its books in a way that aligns with the external reality. A comprehensive definition of fiqh should revolve around its core principles, its rules, and its distinguishing features.

The Sections of Fiqh

Most jurists, particularly the later ones, categorized fiqh into four sections: worship, contracts, declarations, and rulings, as found in Al-Shara’i and Al-Qawa’id by the First Martyr.

In his Al-Qawa’id, the First Martyr stated that the legal ruling’s goal is either related to the afterlife (worship) or the world (rulings), and further, it may require an expression or not. The first category involves worship; the second, rulings that require an expression, and the third, declarations.

The Shara’i Perspective

The Shara’i text follows a similar structure, starting with worship, which is divided into ten books, including purification, prayer, alms, fasting, and pilgrimage, as the most essential, in order of importance.

The second section in Shara’i concerns contracts, comprising fifteen books related to commerce, loans, guarantees, partnerships, inheritance, and other related areas.

The Lammah al-Dimashqiyyah (The Dimashqiyyah Flash)

The Lammah al-Dimashqiyyah is composed of several books in the same order, focusing on purification, prayer, fasting, pilgrimage, and related matters. It also includes discussions on contract and legal rulings, such as transactions, pledges, partnerships, inheritance, and financial transactions.

Differences Between Al-Shara’i and Al-Lammah

The text of Al-Shara’i predates Al-Lammah by the First Martyr, and there are differences in the ordering of some books and topics, but the foundational principles and criteria remain consistent, as in other later works.

The Flaws in the Traditional Classification of Fiqh

The current system of classifying fiqh into four categories—worship, contracts, declarations, and rulings—is overly simplistic and does not adequately capture the complexities of the issues at hand. This division fails to align with the material and substantive distinctions that exist in the real world. Thus, the classification system must be revised to better reflect the actual differences and nature of the topics and rules within fiqh, ensuring that it is both comprehensive and applicable to contemporary legal discussions.

The Purpose and Scope of Islamic Jurisprudence

In the texts al-Kafi and Nadhd al-Qawa’id, it is stated that the primary aims of Islamic jurisprudence include the preservation of life through the legal concept of qisas (retaliation), the protection of lineage through marriage and related matters, the safeguarding of property through various contracts, prohibitions of theft and usurpation, the protection of intellect by prohibiting intoxicants and similar substances, and the overall preservation of societal order through the judicial system, testimony, and related legal practices. This is consistent with the teachings found in al-Ma‘alim and Nadhd al-Qawa’id regarding the meaning and objectives of jurisprudence.

These texts provide a detailed account of the jurisprudential issues related to the aims of the divine law, which encompasses a wide range of legal and ethical matters. This includes not only the formal rulings of ahkam (laws) but also their underlying goals. Such texts illustrate the traditional approach adopted by early scholars, which emphasized a broad view of jurisprudence that extended beyond mere legal rulings to include comprehensive knowledge of legal and moral objectives.

The Distinction between Fiqh and Understanding

Understanding, in its essence, refers to the conceptualisation of something based on the words of the speaker. Ihfam (comprehension) refers to the transmission of meaning from the speaker’s words to the listener’s understanding. Fiqh (jurisprudence), however, is the knowledge of the speaker’s intended purpose behind their words. This is a more profound level of understanding, as it involves recognising the underlying objective, which comes after understanding the basic meaning of the words.

To put it differently, understanding pertains to the mental conception of the meaning of a word, while fiqh involves discerning the speaker’s actual intent. The ability to understand the intended purpose is a more refined, superior, and more accurate level of comprehension. Hence, as suggested in al-Ma‘alim and other works, fiqh is not merely about understanding the literal meaning; it is about grasping the deeper, intended meaning of the speech.

A jurist’s role is not merely to understand the apparent meanings of the texts, but to understand the underlying intent and purpose of the divine law to the best of their ability. This includes engaging with all aspects of the law, whether they relate to duties or prohibitions, and understanding their broader implications for both individual conduct and societal well-being.

The Pillars of Jurisprudence

Based on previous discussions, it can be stated that jurisprudence is founded on three essential pillars:

1. Understanding the legal meanings and religious truths derived from the authentic texts and established sources.
2. Grasping the external subjects and specific cases that are linked to legal rulings.
3. Understanding the underlying reasons and goals embedded in legal rulings, without resorting to analogy (qiyas) or arbitrary judgment (istihsan), as is common in other legal traditions.

A Bad Tradition in Jurisprudence

It has been wrongly argued and practiced in past centuries that the identification of legal subjects is not the responsibility of the jurist. This is a false and destructive notion, which ultimately leads to the marginalisation of the legal system and reduces it to a minimalistic, formalistic view of the law. This approach limits the scope of Islamic jurisprudence to the smallest and least impactful matters, neglecting the wider societal and ethical dimensions.

Moreover, the understanding of the reasons behind legal rulings should not be mixed with analogy or arbitrary judgments, which could distort the integrity of the law. Jurisprudence, especially in its Shiite context, must remain focused on the accurate understanding of legal objectives and their real-world implications.

The Role of the Jurist

From the previous discussion, it is clear that a jurist must embody three core qualities:

1. A comprehensive knowledge of the foundational principles, rules, and necessary elements of Islamic jurisprudence.
2. An ability to comprehend the reasons, causes, and ultimate goals underlying legal rulings.
3. A complete understanding of the specific subjects and circumstances related to legal issues.

A true jurist, therefore, is one who possesses all of these qualities and is capable of deriving and issuing legal rulings based on a deep understanding of the text, its objectives, and the real-world issues it addresses.

The Limits of Legal Principles

The field of Usul al-Fiqh (the principles of jurisprudence) plays a crucial role in the proper derivation of legal rulings. It is foundational for legal reasoning and decision-making. The difference between fiqh and usul al-fiqh is that the former deals with the implementation of legal rulings, while the latter provides the principles that guide the process of deriving those rulings.

Jurisprudence is not confined to a specific subject or set of issues. Rather, its scope expands as new questions and problems arise, and its rules evolve over time to address the changing needs of society. Therefore, fiqh does not have a single, fixed subject matter; its topics and issues are diverse and must be approached through the lens of the specific legal questions they seek to address.

The Role of the Scholar

It is important to distinguish between knowledge and the scholar. Knowledge consists of the body of principles, rules, and concepts, while the scholar is one who truly comprehends the practical and theoretical implications of these principles. A scholar is not merely someone who knows the rules but one who understands the reality behind them, grasping their true meaning and significance. This distinction is crucial in understanding the nature of Islamic jurisprudence and the role of scholars within it.

In conclusion, Islamic jurisprudence is a dynamic and comprehensive system of legal and ethical principles that aims to guide both individuals and society. A jurist’s role is to understand not only the apparent meanings of legal texts but also their deeper, intended purposes, ensuring that the law remains a living, adaptable system that meets the needs of the community.

Ontological Division

In the categorisation of books and sections within jurisprudence, attention must be paid to ontological divisions. For instance, topics such as marriage, divorce, maintenance, li‘an (mutual cursing), ila’ (vow of abstinence), and similar related issues are addressed in specific chapters and independent divisions. However, if the focus is on individual aspects, matters such as purification (taharah), ablution (wudu), full-body washing (ghusl), dry ablution (tayammum), and their invalidators, along with daily prayers, supererogatory prayers, food, drinks, and others, should be categorised into one section or under a single title, despite the differences that exist in terms of common, practical, and customary perspectives.

The key in the organisation and division of jurisprudence is to take into account the customary and natural ontological aspects of topics and chapters, not merely the arbitrary or nominal considerations such as individuality and others.

It is essential to include within jurisprudence the discussions and topics that have been neglected or are missing, but which are necessary for the well-being of the Islamic society. These include matters related to politics, economics, and even spiritual, ethical, and criminal issues, alongside their real-world applications in Islamic communities, much like discussions in civil rights and political matters within various nations and sects.

Jurisprudence must be revitalised, and its numerous, endless issues should be documented with the precision appropriate to Shiite jurisprudence, based on the available sources and the accepted principles of the jurisprudential framework. Superfluous and weak discussions should be eliminated, and important topics, particularly modern and contemporary issues, must be introduced. Ambiguous issues should also be removed, and the subject and ruling should be clearly defined. Additionally, discussions that are bound by time and place, which have changed over time, should be distinguished from the eternal rulings that remain constant with the stability of the subject and the basis. This is because the ruling in fixed matters, without fear or restraint from the jurist, is identical to what the majority of scholars have said in each specific case. In contrast, what the majority has said regarding matters tied to specific times and places often signifies rigidity in identifying subjects and bases. This includes discussions on puberty, the limits of travel, veiling, music, economic issues, and other numerous matters, many of which remain unclear within general discussions unless subjected to thorough investigation, scrutiny, and required accuracy.

It is my intention to realise all of this within jurisprudence, God willing. This has also been a concern of mine for a long time, as I have mentioned in the past or considered in my mind the investigation and clarification of many of these topics and issues.

After all this, a new index of Shiite jurisprudence is to be mentioned, in contrast to what was previously established by earlier scholars, which has been accepted by later jurists without proper investigation. This is an initial consideration, and it is possible to further explore this matter in greater detail when the issue is fully examined, God willing.

The New General Index of Shiite Jurisprudence

1. Section One: Imitation (Taqleed)
2. Section Two: Purity (Taharah)
3. Section Three: Worship (Prayer)
4. Section Four: Seasonal Worship (Fasting, Hajj, and I’tikaf)
5. Section Five: Economy
6. Section Six: Banking and Insurance
7. Section Seven: Legal and Public Finances
8. Section Eight: Nutrition and Food
9. Section Nine: Family and Domestic System
10. Section Ten: Social Relations and Rights
11. Section Eleven: Major Policies
12. Section Twelve: Islamic Judiciary and Penal Law
13. Section Thirteen: Inheritance and Bequests
14. Section Fourteen: Contemporary Beginnings (Rulings on the Deceased)

Detailed New Index of Shiite Jurisprudence

Section One:

• Imitation (Taqleed)
  1. Book of Taqleed

Section Two:

• Purity (Taharah)
  2. Book of Purity and Impurity
  3. Book of the Three Purifications (Ablution, Ghusl, Tayammum and their Invalidators)
  4. Book of Women’s Purity
  5. Book of the Rulings of Relieving Oneself

Section Three:

• Worship (Prayer)
  6. Book of Prayer

Section Four:

• Seasonal Worship
  7. Book of Fasting
  8. Book of Hajj
  9. Book of I’tikaf

Section Five:

• Economy
  10. Book of Professions
  11. Book of Sale
  12. Book of Options
  13. Book of Minor Guardianship
  14. Book of Lease
  15. Book of Partnership
  16. Book of Preemption
  17. Book of Pledge
  18. Book of Agency
  19. Book of Profit-sharing
  20. Book of Agricultural Sharecropping
  21. Book of Investment in Land

Section Six:

• Banking and Insurance
  23. Book of Banking Activities
  24. Book of Promissory Notes (Safa)
  25. Book of Insurance

Section Seven:

• Legal and Public Finances
  26. Book of Khums
  27. Book of Zakat

Section Eight:

• Nutrition and Food
  29. Book of Foods and Drinks
  30. Book of Slaughtering
  31. Book of Hunting

Section Nine:

• Family and Domestic System
  32. Book of Marriage
  33. Book of Divorce
  34. Book of Khul’ (Divorce by Mutual Agreement)
  35. Book of Zihar (husband’s utterance)
  36. Book of Ila’ (oath of abstinence)
  37. Book of Li’an (Mutual Cursing)

Section Ten:

• Social Relations and Rights
  38. Book of Social Relations and Rights
  39. Book of Guarantee
  40. Book of Agency
  41. Book of Suretyship
  42. Book of Transfer of Debt
  43. Book of Loan and Borrowing
  44. Book of Lending
  45. Book of Conciliation
  46. Book of Deposit
  47. Book of Gift
  48. Book of Charity
  49. Book of Oaths
  50. Book of Vows
  51. Book of Covenants
  52. Book of Race and Archery
  53. Book of Lottery and Assistance
  54. Book of Lost Property
  55. Book of Usurpation
  56. Book of Atonements
  57. Book of Waqf (Endowments) and Related Matters

Section Eleven:

• Major Policies
  58. Book of Governance and Leadership
  59. Book of Enjoining Good and Forbidding Evil
  60. Book of Defence and Jihad

Section Twelve:

• Islamic Judiciary
  61. Book of Judiciary
  62. Book of Confession
  63. Book of Testimonies
  64. Book of Enforcement
  65. Book of Punishments
  66. Book of Retaliation
  67. Book of Blood Money

Section Thirteen:

• Inheritance and Bequests
  68. Book of Bequests
  69. Book of Inheritance

Section Fourteen:

• Contemporary Beginnings (Rulings on the Deceased)
  70. Book of Rulings on the Deceased