Principles of Jurisprudence 1 (HSC 210)

Session One: Introducing Ul, Shahd al-adr and

the alaqt
Preamble:

God is the Necessary Being; everything else is contingent. All these

contingent beings, including the human being, draw their existence

from Him. So they are His creations.

God did not create the human being without purpose; He created
him with a purpose in mind and explained how the human being
can attain this purpose. So the human being is accountable to his

Creator; He has not been left without any responsibilities.

The human being cannot, through his own intellect, produce laws
capable of helping him to attain this purpose, although he can
ascertain some universal principles (such as that of his duty to obey

God).
Therefore the human being needs Divine Guidance to achieve his
purpose; this is why God sent the Law.
Etymology of Ul al-Fiqh
o Fiqh literally means understanding i.e. understanding of
the law.

Shahd Muammad Bqir al-Sadr

Born in 1935 to a distinguished scholarly family in Kazimayn

Was sent to Najaf to study at fourteen because of his obvious ability.
His sister, Amina Bint al-Huda was herself a brilliant novelist and

public speaker.
By 1963 (aged 28), Sadr began to teach in Najaf.

The leading Shii authority at this time was Muhsin al-Hakim (d.
1970). He was opposed to the general study of philosophy but
because of Sadrs ability and reliability authorized him to study it

(the effects of which would be visible on his jurisprudence).

Leading political party in the Iraq of the 1960s was the Communist

Party, which had become very popular amongst the Shia masses.
Because Iraq was dominated by a Sunni elite, the Shia including
sons and relatives of important clerics flocked to the Communist

Party.
In the 50s and 60s, similar developments were taking place in Iran,
where Allamah Tabatabai (19031981) and his student Murtada
Mutahhari (19191979) wrote critiques of Communist ideology and

philosophy.
Sadr drew on these works as well as his growing knowledge of
Western philosophy (available through Arabic translation) to write a

series of immensely influential books (as well as countless others):

o Fadak in History (1955)
o Our Philosophy
o Our Economics
o The Interest-Free Bank
o The Logic Bases of Induction
Sadrs works were distinguished by the clarity of their prose and the
rigour of their philosophical discussion (drawing on the scholastic

style of philosophy).
The titles alone of these works demonstrate Sadrs breadth of

thought.
He lamented that many key works of Western thought were not

available in Arabic for him to draw upon in his research.

As well as combatting Communism, Sadr laboured to shape a more

modern Shia philosophy and system of education.

Already Shaykh Muhammad Rida al-Muzaffar (19041964) had
begun to initiate reform in the syllabus with his own textbook on
Usul al-Fiqh, and setting up the Kulliyat al-Fiqh.

He and some like-minded scholars sought to change Shia education

inside the seminaries and outside. In the 60s a committee was set
up to publish textbooks at all levels of study and to give the

seminary of Najaf more structure.

However their efforts met with mixed results, with the government
intervening to prevent them from founding independent centres of

Shii learning.
Iraqi political developments were always in the background

throughout this time.

1970, Muhsin al-Hakim passed away and was succeeded by Abu alQasim al-Khui, who was Sadrs teacher. Like Hakim, he adopted a

policy of avoiding confrontation with the government.

However, the Baathists returned to power in 1968 and began to

arrest scholars, and Sadr sometimes spoke out.

Things came to a head in 1977 when the Baathists, to make a show
of force, banned the annual Muharram procession from Najaf to

Karbala.
Despite the ban, tens of thousands marched anyway and hundreds

were imprisoned.
The Baath party was divided in its response, but eventually the
faction led by Saddam decided that any sort of Shia challenge to
their authority must have come from Sadr. Sadr was arrested but
when they saw the level of anger from the Shia population, he was

released.
With the Islamic Revolution in 19781979, tensions only increased.
Hizb al-Dawa, an underground Shia political party, became

emboldened and started to look to Sadr for leadership.

Sadr himself was speaking out more openly against

the

government; he said that no good Shia could belong to the Baath

party.
In 1979, the Dawa party began holding demonstrations in towns
across the country. The government arrested Sadr a second time,

his sister gave impassioned speeches calling for his release and

riots broke out. He was released but placed under house arrest.
In 1980, Hizb al-Dawa ramped up its protests against the
government and Sadr was arrested a third time. This time his sister
was arrested too. They were tortured and, on April 8 th 1980, they

were martyred.
But it was in the midst of the turmoil of the 1970s, in the midst of
protests, arrests and government repression, that Sadr wrote the

Halaqat (the first halaqa was published in 1977).

It is not the first legal work to have been written in such
circumstances: hundreds of years earlier, another scholar-martyr,
Shahid I wrote al-Luma al-Dimashqiyya while he was in prison
awaiting execution on charges of heresy by the Sunni Seljuk
Sultanate.

The Traditional approach to Ul al-Fiqh

Brief history of Fiqh and Usul

o Beginnings: Imams (until 260)
o Formative period:
Qom proto-akhbaris: Kulayni (d. 329), Saduq (d. 380)
Baghdad usulis: Mufid (d. 410), Murtada (d. 421) and
o
o

Tusi (d. 460)

Stagnation until Ibn Idris al-Hilli (d. 543)
Classical era: Muhaqqiq al-Hilli (d. 676), Allamah al-Hilli (d.

726), al-Hasan b. Zayn al-Din (d. 1011)

Akhbari renaissance: Astarabadi (d. 1023), Fayd Kashani (d.

1091), Yusuf al-Bahrani (d. 1186)

Usuli revival: Bihbihani (d. 1206), Murtada Ansari (d. 1281),

Akhund Khurasani (d. 1329)

Traditionally, the ul curriculum hawza was:
o Malim al-dn, by Shaykh asan (grandson of Shahd II, d.
o

1011/1602)
Qawnn al-ul, by Mirz Abu al-Qsim al-Qumm (d.
1231/1815)

Farid al-ul (aka Rasil) by Shaykh Murta al-Anr

(d.1281/1864)
o Kifyat al-ul by khund Khursn (d. 1328/1910)
This was known as the level of su, or intermediate studies in
between muqaddimt (elementary studies) and bath al-khrij

(advanced studies).
So why did Shahd adr write the alaqt?

The alaqt

The alaqt consists of three text books of Ul, called the First,

Second and Third, in ascending order of complexity and difficulty.

Before writing the alaqt, Shahd al-adr composed another work
of Ul, called al-Malim al-Jadd, which shares is of a similar

level to the First alaqa.

In particular, Shahd al-adrs discussion of the development of

Ul in H1 resembles that found in his Malim Jadd.

In the introduction to the alaqt, adr makes the following
observations:
o The traditional method of study has been followed for fifty
years (at his time) almost without change (barring the
textbook of Shaykh al-Muaffar, written in the which took the
place
o

of

Qawnn

for

many

students

in

the

years

beforehand).
These four books were chosen as textbooks because they
represented the deepest and most complete discussions of

Usul.
However adr gives the following reasons for wanting to
replace them with purpose-written textbooks:
These four books represent different historical stages
of Usuls development: Maalim and Qawanin were
rendered obsolete by Ansaris Rasail, and both Rasail
and Kifaya were written a hundred years ago, since

which new discussions and ideas have opened up.

These new discussions must be included in textbooks
or else students will not be properly prepared for

Kharij.
Gradation of Usul textbooks good but not in historical

development, but rather in complexity of concepts.

These four books were not written by their authors for
the purpose of study. They were written to express the
views of their authors in Usul. There is a big difference
between a textbook and a book intended to expound
his deepest and most profound ideas. The latter does

not show the steps of jurisprudence for the student.

Also these books do not arrange the subjects explicitly,
preferring
historically

to

include

inherited

new
ones,

discussions
even

if

with

these

old
new

discussions are more important than the old ones!

But other scholars were writing new books too, why did Sadr
think he needed to write one? He gives several reasons why
he does not feel that the new books have solved the problem
he identified (23):
They deal with only one level of study (they are not a

complete Usul program from start to finish).

While these books often had new arrangements of
existing material, they did not always touch the

substance of that material.

They have also been uneven in their treatment of the
material, giving too much detail in some areas and not

enough in others.
Therefore he says, he wants to provide a complete program
of Usul from start to finish to replace all of these books; a

program with a single spirit, founded on a single basis, in

three stages.