By Edmund Hayes
In 260/874, upon the death of the Eleventh Imam of the Twelver Shīʿa, al-Ḥasan al-ʿAskari, a crisis hit the inner circle of the Imam's family. The Imam's inheritance was contested between the Imam's mother, Ḥudayth (d. perhaps before 281/894–95), and his brother, Jaʿfar (d. perhaps 281/894–95), known to posterity as "the Liar" for his claim to be the Twelfth Imam himself. Twelver accounts vilify Jaʿfar "the Liar" for resorting to the caliphal law of the land, to secure his portion of the inheritance. Ibn Bābawayh (d. 381/991) euphemistically states that,
Ḥudayth . . . had troubles too long to explain with [the Eleventh Imam's] brother Jaʿfar, and the fact that he demanded the inheritance from her [Ḥudayth, the Imam's mother], and slandered her behind her back to the government (sulṭān) and revealed things that God commanded to be concealed. . . .[1]
Jaʿfar's 'slandering' of Ḥudayth probably refers to his campaign to gain the inheritance from his brother, in violation of Shīʿī law that favoured inheritance in the female line. He would have taken advantage of the Sunnī-oriented caliphal legal system that preferred the inheritance of brothers (and males in general) over mothers. From a Shīʿī perspective, it appears outrageous that Jaʿfar "the Liar" would resort to the courts of the hated ʿAbbasids. Ultimately, however, we are told that "the inheritance was divided between [Ḥasan's] mother and his brother, Jaʿfar, and his mother claimed his bequest (waṣīyyatahu) and established that with the Qāḍī."[2]
However much the Twelver tradition wishes to tar the reputation of Jaʿfar "the Liar" as uniquely treacherous, both parties in this case are clearly depicted as resorting to the legal system of the caliphate, with all its established mechanisms of legal interpretation and enforcement, with its judges, its courts, police, prisons, evidentiary standards and legal professionals.
The dispute about the inheritance of the property of the Eleventh Imam exemplifies the tensions inherent in what was by now a long-standing antipathy among the Imāmī Shīʿa to resorting to the legal structures of the caliphate. It is unclear when this position emerged, but we have numerous statements attributed to Imams that espoused a purism vis-à-vis non-Shīʿī legal sources and institutions.
One such report is the ḥadīth known as the "maqbūla of ʾUmar b. Ḥanẓala." This report is famous for being used by Khomeini to provide an evidentiary basis for his conception of the "Government of the Jurist" (wilāyat al-faqīh).[3] However, if we set aside the contemporary usage of this tradition and try to understand its original context, we see that it provides a strong position on the question of resorting to the caliphal legal system. Here I quote just the beginning of this long ḥadīth:
… Transmitted from ʿUmar b. Ḥanẓala who said: I asked Abū ʿAbd Allāh [i.e. the sixth Imam, Jaʿfar al-Ṣādiq] about two men of our [Shīʿī] companions who had a dispute regarding a debt or inheritance, and they resorted to the justice of the government and judges (taḥākamā ilā al-sulṭān wa ilā al-quḍāt). Is that allowed?
[The Imam] replied: whoever resorts to them for a judgement, whether right or wrong, well they have resorted to the justice of an idol [ṭāghūt, i.e., an illicit, oppressive ruler]. And the judgement that is passed is illegitimate, even if it confirms a well-established legal right for him, because he received it due to the judgement of an idol, while God ordered him to reject [that idol]. For God said: "They want to resort to the judgement of the idol but they were ordered to reject him" [Q: 4:60].[4]
As the report follows, the Imam is questioned about how the community is to proceed, then. After all, if ʿUmar b. Ḥanẓala and his Kufan peers were deprived of legal recourse through the courts of the caliphate, they could not just replace this resource with the Imam, because he lived far away in Medina. The Imam answers:
They should look to the one among you who has transmitted our statements and looked into our [opinions] on the licit and the illicit [ḥalālinā wa-ḥarāminā] and who knows our rulings [aḥkāmanā] and they should be content with his judgements: Such a person is the one whom I have made a judge over you. If he rules according to our rulings, and they are not accepted from him, well, then God's ruling has been taken lightly, and we have been rejected, and whoever rejects us rejects God, and he is verging upon heresy against God [al-shirk bi-allāh].[5]
It is very possible that al-Ṣādiq did not personally say this, but it clearly reflects a response to questions in the Imāmī community about how to resolve legal cases, given that one was supposed to avoid the legal system of the caliphal government which is perceived as illegitimate.
The question of what to do if the worldly authorities were corrupt and could not be trusted to carry out their canonical Islamic functions was not limited to the Imāmī Shīʿa. We see similar questions expressed also in Sunnī circles. In particular, both Sunnī and Shīʿī opinions circulate regarding the question of whether one needs to pay twice one's canonical Islamic taxes (kharāj and zakāt and so on) if they were initially levied by a rebel or an illegitimate Imam.[6]
But the situation envisaged in the maqbūla, the total disengagement from caliphal legal systems, is more serious. It also implies not a temporary situation, like payment of taxes to a Khārijī rebel who takes over your town, but rather a more-or-less permanent set of circumstances that requires stable and durable solutions.
The maqbūla ḥadīth articulates an idealistic position in which the Shīʿa totally avoid governmental mechanisms – a situation unlikely to have been maintained. Indeed, if we understand the brother and mother of the Eleventh Imam to have been Shīʿī, then we have at least one clear case in which the Shīʿa did perforce resort to caliphal systems of arbitration and enforcement.
If the ban on legal pluralism[7] was acknowledged, it must have caused a huge headache for the Shīʿa in practice, especially in the inevitable instances of mixing with non-Shīʿa: such problems of mixing frequently turn up in legal ḥadīth in Shīʿī ḥadīth works and in fiqh works, covering what to do in cases of inheritance, marriage, contracts and other areas of life where mixing with non-Shīʿa people was inevitable.[8] These debates are comparable to Sunnī debates regarding whether, for example, one can marry the women and eat the slaughtered meat of Christians, Jews and Zoroastrians.[9] In addition, we see elements specific to the Shīʿī context: what to do in contact with non-Shīʿī Muslims who are otherwise unobjectionable, and what to do in contact with virulent anti-ʿAlids (nawāṣib)?[10]
While the imamic ḥadīth often articulate purist positions, in practice, many Shīʿa must have perforce resorted to the caliphal legal systems, as Jaʿfar "the Liar" and Ḥudayth did. And many sins might have been covered by resorting to the conception of taqiyya which recommended reticence regarding one's doctrinal commitments.
How, indeed, is one to carry on one's life without an enforceable legal framework? Is one to live without arbitration, or is one to go against one's principles and accept that the world is intrinsically flawed, and forces compromises upon us.
In spite of the unlikeliness that all Imāmī Shīʿa at all times avoided using the caliphal courts and legal frameworks, the Imam's response in the maqbūla gives us an inkling into the kinds of practical solutions to the issue of legal recourse: we are told that someone from the local community where the legal issues arise, who is versed in judgements of the Imams is to be chosen to give a ruling.
There are two interesting things here. Firstly, although we often think of a post-occultation process of "Sunnītization" of Imāmī Shīʿīsm where the absence of an Imam forced the community to develop large collections of legal ḥadīths as well as hermeneutic tools for processing them, the maqbūla implies that scholars would maintain corpora of imamic statements used to produce practical judgements on specific cases. This is fascinating, and requires further study to draw together the traces in our sources about the operation of such locally-managed systems of judgement and arbitration. Secondly, it clearly shows that even though the ideal image of the Shīʿī Imam is of a very centralized source of wisdom and legal authority, the institutional limitation of the imamate meant that, in practice, much of the interpretation and enforcement of imamic legal positions had to be carried out by non-Imams in places like Kufa and Qum.
In the next two essays I will delve more deeply into how the relationships between the (theoretically) centralized authority of the Imams and the agency of local communities worked in practice.
Notes:
[1] Abū Jaʿfar Muḥammad b. ʿAlī b. Bābūya al- Qummī, Kamāl al-dīn wa-tamām al-niʻma, ed. ʻAlī Akbar al-Ghaffārī (Tehran: Dār al-kutub al-islāmiyya, 1395 [1975]), 473–74.
[2] Abū Jaʿfar Muḥammad b. Yaʿqūb al-Kulaynī, al-Kāfī, ed. ʻAlī Akbar al-Ghaffārī (Tehran: Dār al-Kutub al-Islāmīya, 1388 [1968]), 1:505.
[3] See, for example, Hamid Mavani, "Ayatullah Khomeini's Concept of Governance (wilayat al-faqih) and the Classical Shiʿi Doctrine of Imamate," Middle Eastern Studies 47, no. 5 (2011): 807–24. Norman Calder translated and discussed the implications of this report for the development of early Shīʿī fiqh in "The Structure of Authority in Imāmī Shīʿī Jurisprudence" (PhD diss., School of Oriental and African Studies, 1979), 70–73.
[4] Kulaynī, Kāfī, 2:67. See the Arabic here: http://shiaonlinelibrary.com/%D8%A7%D9%84%D9%83%D8%AA%D8%A8/1122_%D8%A7%D9%84%D9%83%D8%A7%D9%81%D9%8A-%D8%AC-%D9%A1/%D8%A7%D9%84%D8%B5%D9%81%D8%AD%D8%A9_0?pageno=67.
[5] Ibid., 2:67.
[6] On this issue, see Edmund Hayes, "Alms and the Man: Fiscal Sectarianism in the Legal Statements of the Shiʿi Imams," Journal of Arabic and Islamic Studies 17 (2017): 288–91, doi: https://doi.org/10.5617/jais.6119.
[7] In framing of these issues as a question of legal pluralism, see Uriel I. Simonsohn, A Common Justice: The Legal Allegiances of Christians and Jews Under Early Islam (Philadelphia: University of Pennsylvania Press, 2011), https://doi-org.ezproxy.leidenuniv.nl/10.9783/9780812205060, especially chapters 1 and 2.
[8] See Edmund Hayes, "Encountering the Internal Other: Non-Shiʿi Family Members among the Imami Shiʿa," Medieval Encounters 30, nos. 2–3 (2024): 280–301.
[9] For these issues, and the debate of how to deal with the intermediate category of Christian Arabs, see Simon Pierre, "Boundaries That Bind? Pagan and Christian Arabs between Syriac and Islamic Strategies of Distinction (Late First Century AH)," in Mechanisms of Social Dependency in the Early Islamic Empire, ed. Edmund Hayes and Petra M. Sijpesteijn (Cambridge: Cambridge University Press, 2024), 423–65, especially 442–55. For comparative studies of conversion and intermarriage, see Uriel Simonsohn "Conversion to Islam: A Case Study for the Use of Legal Sources", History Compass 11, no.8 (2013): 647–62; and Uriel Simonsohn "The Legal and Social Bonds of Jewish Apostates and Their Spouses according to Gaonic Responsa," Jewish Quarterly Review 105, no.4 (2015): 417–39.
[10] See Hayes, "Encountering the Internal Other," 280–301.
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