SOME PECULIARITIES OF THE LAW OF
INHERITANCE
THE FORMATION OF IMĀMĪ
AND ISMĀʿĪLĪ LAW*
Istituto
Universitario Orientale,
The question of the caliphate or imamate
and similarly that of the mutʿa marriage (Imāmīs) are
generally seen as the deepest differences distinguishing Šīʿī
law systems from those of the remaining law schools. Inheritance law, however,
reveals an additional range of Šīʿī idiosyncrasies: the
division of heirs by kin into classes, certain privileges of the eldest son,
and certain disadvantages of wives with respect to some goods in their
husband’s estates. From a historical point of view, the analysis of these cases
leads to some innovative conclusions about the origin and development of
Imāmī and Ismāʿīlī doctrine, the influence of
political elements on the law system, the question of the authenticity of the
Zaydī Maǧmūʿ al-fiqh, and the dominance of practical
considerations over strict legal rules.
Three
things peculiar to Imāmīs and Ismāʿīlīs may throw
light upon the origin of their law systems: the division of heirs by kin into
classes, certain privileges of the eldest son, and certain disadvantages of
wives with respect to some goods in their husband’s estates. I take as a terminus ad quem the Uṣūl al-kāfī of
al-Kulaynī[1]
(d. 328/939) and as a terminus a quo
the Qurb al-isnād of Abū ʾl-ʿAbbās
al-Qummī[2]
(d. 300/912 ca), including
three Musnads, of Ǧaʿfar
al-Ṣādiq (d. 148/765), Mūsā
al-Kāẓim (d. 183/799), and ʿAlī al-Riḍā
(d. 203/818) respectively. The temporal gap between these works is not very
great, but their doctrinal differences are considerable. An intermediate stage
is represented by al-Faḍl b. Šāḏān (d. 260/874).
1. Division of the heirs by kin into
classes
The Šīʿī all-defined
system avoids the fragmentary character of the Sunnī
[128] inheritance
law. However, “the real cause of the difference between the principle of the
Sunnite law on inheritance and its Shiite counterpart is one of the most
important problems remaining unexplored by modern research”.[3]
The reasoning given by al-Kulaynī[4]
in order to provide firm grounds for such a division is based exclusively on
the interpretation of Qurʾānic verses. He lists the revelations on inheritance
in the following order: first, Q. 4:11, which seems to give the whole estate to
walad, fixing, however, the share due
to one or more daughters and specifying that a male has the right to a portion
equal to that of two females. Then parents and spouses are admitted to
succession with them (Q. 4:11–12). Later on, Q. 4:12 fixes the share of the
uterine brothers, while Q. 4:176 deals with the full or consanguine brothers.
Then Q. 8:75, concerning the ūlū
ʾl-arḥām, is revealed, which gives them precedence over
confederates and patrons. Lastly, Q. 4:7 abolishes the category of agnates,
since also women have a right to “little or much”, contrary to a rule in force
during the ǧāhiliyya.[5]
The non-abrogation of Q. 8:75 leads, as a consequence, to the fact that there
is no distinction between heirs by kin, as the remaining law schools maintain
(heirs by quota, agnates, and ḏawū
ʾl-arḥām). Relatives must be considered as a whole:
cognates and agnates are placed on a footing of equality; the only important
elements to be considered are their blood relation both on the paternal and
maternal side and their proximity to the deceased.
For
the first class, composed of two groups (parents; children, however remote),
al-Kulaynī has a full elaboration. Descendants inherit according to their
degree; the nearer bars the more remote, even if this doctrine was fluid, since
Ibn Bābawayh[6]
maintains that descendants from the second degree onwards cannot inherit if
parents are present. The real question involved here is the meaning of walad. While the Sunnīs interpret
this term in different ways in different Qurʾānic verses, the
Šīʿīs give always the same meaning to walad, namely, male and female direct descendants, which is closer
to Arabic usage and the letter of Qurʾān. Consistently the expression
walad [129] al-walad also includes both male and female
descendants, however remote. Al-Kulaynī accordingly solves three cases in
opposition to the Sunnī doctrine: a daughter excludes a son’s daughter; a
daughter excludes a full or consanguine sister; and walad al-bint take the place of the bint, i.e., daughters’
children take the same place as children, if descendants of the first
degree are not present.
In
Qurb al-isnād[7]
only one case regarding the first class (daughter’s son and son’s daughter) is solved. On the authority of
ʿAlī, inheritance is to be given to the nearest
in kin, but, according to al-Riḍā, the nearest in kin is here the
son’s daughter. This solution, although attributed to ʿAlī, is hardly
likely to go back to him, both because of the temporal gap between ʿAlī
and al-Riḍā and because of other contradictory doctrines attributed
to ʿAlī. Moreover, this report shows that the system of classes is
not even outlined; the idea of proximity is not very clear; and the concept of
agnation still prevails, since, whilst reaffirming the principle of proximity,
a son’s daughter is considered as the nearest heir. Al-Ṭūsī[8]
comments that this solution is not in force in the Imāmī school and
correctly perceives a contradiction between the general principle affirmed and
the solution given, because both heirs are of the same degree.
The
basic elements appropriate to outline this class can be traced back to al-Faḍl,
who sets out general principles and solves accordingly a long series of cases: the walad
al-walad always takes the same place as the direct walad;
thus the walad of daughters must also
be considered on the same footing as the direct walad; moreover, a sister
is excluded from the inheritance when a daughter is present.[9]
The
Ismāʿīlī al-Nuʿmān[10]
follows the same doctrine as the Imāmīs, even if he gives a
particular tone to his exposition, making constant reference to Fāṭima,
stressing the political rights of the Family of the Prophet, and mixing
juridical with religious and political considerations,[11]
basing himself on certain [130] Qurʾānic verses[12]
and Prophetic traditions.[13]
He makes juridical use of political elements.
In
the absence of heirs of the first class, the nearest in kin follow, either male
or female, divided in two groups (grandfathers and grandmothers, however high;
brothers and their children, however low). The grandfather is treated as a
brother since the distance of both to the deceased is the same, the first
through the son and the other through the father. Since the principle of
agnation is not acknowledged, both paternal and maternal grandfathers and
grandmothers have the right to inherit on identical grounds. Grandfathers,
grandmothers and brothers form the first degree of the second class, regarding
which divergences do not exist.[14]
However, for the heirs from the second degree
onwards, there was a debate concerning the grandfather and a brother’s
son. According to the principles of proximity and agnation, the grandfather
should exclude the brother’s son; but they are put on an equal footing,[15]
thus supposing two groups.
Al-Nuʿmān
attributes this doctrine to the Prophet, but some evidence shows that the
debate arose later. At the time of Muḥammad b. Muslim al-Kūfī
(d. 150/767) this rule was not fixed.[16]
Yūnus explains why they should inherit together,[17]
and al-Faḍl gives further explanations and solves accordingly a series of
cases.[18]
However, apart from this case, at the time of Yūnus, al-Faḍl, and
even later, the doctrine regarding the second class remained quite fluid. Thus,
in contradiction to the principle of proximity, Yūnus divides [131] the
estate in halves between a paternal uncle and a brother’s son;[19]
al-Faḍl does not exclude male or female descendants of full brothers
because of the presence of one or more uterine brothers;[20]
and, according to a minority Imāmī doctrine, paternal and maternal
grandfathers and grandmothers inherit with
descendants from the second degree onwards, however low.[21] Al-Nuʿmān admits a grandmother to the inheritance while her son is still
alive,[22]
and he arbitrarily attributes the whole estate to the grandfather with uterine
brothers’ and/or sisters’ descendants; but he admits that there is no explicit
text supporting such a solution. [23]
In
Qurb al-isnād[24]
only one report concerns the second class (mother and brother). Al-Riḍā
asked whether the solution of the case should be based on the Qurʾān
or on the sunna. Ḥammād b.
ʿUṯmān (d. 190/806) believed that the sunna mentioned by al-Riḍā would refer to the opinion of
the people [qawl al-nās; Sunnīs?]. ʿAlī, basing
himself on the Qurʾān, made the nearest in kin inherit—the mother in
this case. This report is interesting in many aspects. First, it shows that the
technical meaning of sunna as sunnat al-nabī was not yet definitively fixed. Secondly, a certain
divergence between Sunnīs and Šīʿīs about the
reading of some Qurʾānic verses began to emerge at the latest by the
time of al-Riḍā, although the attribution to ʿAlī might
not be authentic, either because of the temporal gap between ʿAlī and
al-Riḍā or because of other contradictory doctrines attributed to ʿAlī.
In
the absence of heirs of the first two classes, the remaining relatives as a
whole, including males as well as females, form the third class, according to
the principle of proximity only,[25]
based on Q. 4:33 and on Q. 8:75. They are paternal and maternal uncles and
aunts of the deceased and their descendants, then paternal and maternal uncles
and aunts of an ancestor of the deceased and their descendants.[26] However,
some cases are an exception to the [132] principle of proximity.[27]
In
summary, Qurb al-isnād has
little on classes since it represents an archaic stage of Imāmī
doctrine. At the time of al-Riḍā,
the beginning of the third century H., an inheritance system did not yet exist.
Only at the time of al-Faḍl can we find the elaboration of general
principles, even if there is still much fluidity in some cases. This leads us
nevertheless to reject Nasr’s assumptions.
His statement that the “elaboration of Shīʿīsm
began with al-Kulaynī, to be followed by such figures as Ibn
Bābawayh, Šayḫ al-Mufīd and al-Ṭūsī, with
whom the principal doctrinal works of Shīʿī theology and
religious sciences became established”,[28]
might be corrected so as to situate the beginning of the Imāmī
doctrinal elaboration in an earlier period. I am inclined to believe that the
three Musnads included in the Qurb reflect an early stage in
Imāmī doctrine.
2. Privileges of the eldest son
In al-Kulaynī the doctrine that the eldest son of the deceased
is entitled to take some goods as his special
privilege and right is fully developed. However, there is no unanimity
about its extension; some ḥadīṯs list the sword, the armor (dirʿ),
the signet ring, and the Qurʾān;[29]
one of them mentions only the sword and the arms;[30]
another omits the arms, but adds the deceased’s
books, camel saddle, female riding camel, and garments.[31]
Moreover, while a tradition[32]
specifies that if something happens to the [133] firstborn male, his right should be transmitted to the
eldest among the surviving male children, another tradition[33]
adds that when the male children are more than one, only the eldest can claim
this privilege. Lastly, another ḥadīṯ[34] states that if the eldest child is a female, this
privilege will be transmitted to the eldest among the sons. To this al-Ḥillī
(d. 676/1277)[35]
adds the conditions that this son be neither a prodigal nor deficient in understanding, that the deceased should have left
some other property besides, and that the son is liable for the payment
or fulfillment of prayers and fasts which the deceased may have left
unperformed.[36]
All
the law schools diverge on this doctrine, as al-Ṭūsī himself
admits.[37]
Generally they ignore it. Only the Zaydī Ibn al-Murtaḍā[38]
(d. 840/1437) has a reference to the question in the context of reaffirming the
doctrine according to which the whole estate is to be given as inheritance (Q.
4:7: “be it little or much”). Al-Ṭūsī
gives as proof the iǧmāʿ
of his school and its own traditions.[39]
Implicitly he admits that neither Qurʾānic references nor Prophetic
traditions exist on the matter. Nothing exists in the Qurb al-isnād about this subject, and the name of al-Faḍl
appears only in one isnād. I am
inclined to believe that this doctrine cannot be traced back to an early period
and that its formulation might be not earlier than the third century. Fyzee[40] pointed out that these special privileges recall
the primogeniture and the legitimistic tendency prevalent amongst the
Šīʿa as a rule. Al-Nuʿmān[41]
seems to refer to a recent origin of the doctrine when he distinguishes between
what was transmitted from the past generations and what some judges had taught
according to the Imāmī doctrine of his time on this and other similar
matters. For al-Nuʿmān,[42]
the only explanation of this rule is that it is a peculiarity of the waṣīs:
nothing in their possession can be considered as [134] inheritance;
it must be transmitted from the predecessor to the successor, that is, the seal
of the imamate, the Qurʾān, the books of the sciences, and the arms,
in accordance with what Prophet did with his waṣī ʿAlī and ordered him to do with
his son al-Ḥasan, and so on in each generation.
3. Disadvantage of wives regarding some
goods in their husband’s estates
Qurb al-isnād[43]
has only one tradition on this subject, on the authority of al-ʿAlāʾ
b. Razīn on the authority of Ǧaʿfar al-Ṣādiq; but
this isnād is given in more credible form in later sources, which
have Muḥammad b. Muslim between the two.[44]
According to the matn, wives inherit
bricks, but not residences, on the ground that they have no blood relation with
the remaining relatives; they are in-laws, and nobody becomes an in-law through
them in the family of their husbands. By creative work this scanty material was
much increased in al-Kulaynī, even if traditions are related on the authority either of Ǧaʿfar
al-Ṣādiq or Abū Ǧaʿfar, or both. The unreliability of
the attribution of this doctrine to Ǧaʿfar al-Ṣādiq is
evidenced by a report on his authority according to which either husband or
wife has the right to inherit everything of the property the other has left as
inheritance.[45]
With many variations in the matns,
generally three kinds of goods are listed in this connection: those which wives are entitled to inherit (money,
household effects, clothes, household furnishings); those which they can
never receive (soil, land, villages, houses, arms, livestock); and those which
wives have the right to inherit after they have been appraised (bricks,
buildings, wood, canes, doors, trunks, trees,
and palms).[46]
In al-Kulaynī we also find
a variant in the [135] justification of
the restrictions, namely, that a widow might re-marry and thus prejudice the interests
of the remaining co-heirs.[47] The restrictions are meant to avoid a widow’s new husband
or one of his children, born from other women and thus belonging to other
groups, sharing the property of a group alien to them.[48] This argument is taken up again by Ibn
Bābawayh: the special tie between
husband and wife, the ʿiṣma,
might be broken and another ʿiṣma take its place, causing as a consequence a transfer of property from one
family group to another.[49] Moreover, Ibn Bābawayh introduces a new element, since he distinguishes
the case when the wife has had a child by the deceased (she inherits out of all
that he has left) from the case when there is no walad (one applies the above rules).[50] However, al-Ṭūsī[51] rejects this distinction, pointing out that it conflicts
with the principle of taqiyya
(dissimulation).
In
al-Ṭūsī [52]
a mitigation in the limitation of the wife’s
right is introduced, since a distinction is made between ancient and modern
buildings: wives cannot inherit either houses or landed estates, unless
they are recently established.
Al-Ṭūsī[53]
brings no other evidence than the iǧmāʿ
of his school and its traditions. So no basis in either Qurʾān or
Prophetic ḥadīṯ
exists to support his argument. The Imāmī doctrine is generally
ignored by the other law schools. However, it seems that the Zaydī Corpus[54] makes reference to it when it adapts
the well-known ḥadīṯ
to the effect that estates divided during the ǧāhiliyya continue to be divided accordingly, while those
[established] [136] under Islam, but not yet divided, follow the Islamic rules[55]
as follows: All residences and lands divided during the ǧāhiliyya remain divided accordingly; while all
residences and lands divided under Islam must follow the rules of Islam. The
adaptation of this tradition leads to many doubts about the authenticity of the
Maǧmūʿ and could be evidence of a late origin.[56]
The
most convincing refutation of the Imāmī doctrine is provided by al-Nuʿmān.[57]
Once established that it is in contrast with the Qurʾān, the sunna, and the iǧmāʿ of the imāms
and of the umma, from the Islamic
point of view the only remaining justification can be that goods that wives
cannot claim as inheritance were immobilized as waqf exclusively in favor of men. The reason for this rule rests on
the will to keep family property undivided. For economic, social and
patrimonial reasons, precedence is given to a blood tie over a relation based on subūb
(marriage and patronage) in the transfer of
property causa mortis.[58]
Summary
The
Imāmī and Ismāʿīlī reasoning regarding the three
questions discussed above developed completely within an Islamic framework that
excluded any foreign influence. The Imāmī law system was formed
beginning from the third century H. onwards as a reaction to the Sunnī
interpretation of the Qurʾān. An important stage in this evolution is
attested by a series of doctrines attributed to some preeminent Imāmī
jurists, such as Yūnus and al-Faḍl. Therefore I do not believe that
“by this time [the Imamate of Jaʿfar aṣ-Ṣādiq], all the
fundamental elements of Shi‘ism had appeared, and were being formulated into
what would eventually become the Twelver system of doctrine and legal
practice”. [59]
The formation of the Ismāʿīlī system was secondary, almost
a re-examination of the Imāmī law. The presence of these [137] doctrines
in the Šīʿī law also discredits the widespread opinion
according to which only a limited number of differences distinguish
Šīʿī law from that of the Sunnī schools.[60]
* This paper was presented at the 19th Congress of the Union Européenne des
Arabisants et Islamisants (Halle, August 30 – September 3, 1998).
[1] 8 vols., Teheran 1388–89/1967–68
(cited as: Uṣūl).
[2] Beirut
1413/1993; cf. F. Sezgin, Geschichte des
arabischen Schrifttums, Leiden 1967, I, 46, note 1; 165, no. 124 (cited as:
GAS).
Ḥadīṯs related on the authority of al-Riḍā
have been recently collected in a separate book: Musnad al-imām al-Riḍā, 2 vols.,
[3] A. A. A. Fyzee, Outlines of Muhammadan Law, 2nd ed.,
[4] Uṣūl, VII, 72–75.
[5] The Ismāʿīlī al-Nuʿmān
(d. 363/974) (Daʿāʾim
al-Islām, 2 vols., Cairo 1379–83/1960–63, II, 380, no. 1358–60; cited
as: Daʿāʾim) sets
forth the same principles as al-Kulaynī.
[6] K. man lā yaḥḍuruhu ʾl-faqīh, 4 vols., al-Naǧaf 1377–78/1957–59,
IV, 196–97, 201:4–5 (cited as: K. man).
[7] Qurb al-isnād,
389, no. 1365; al-Ṭūsī, Tahḏīb
al-aḥkām, 10
vols., al-Naǧaf 1377–82/1957–62, IX, 318, no. 1144 (cited as: Tahḏīb); Musnad, II, 432,
no. 5.
[8] al-Ṭūsī, Al-Istibṣār
fī-mā iḫtalafa min al-aḫbār, 2nd ed., 4 vols., al-Naǧaf 1376/1957 (cited as: Istibṣār), IV, 168, no. 636; Tahḏīb, IX, 319.
[9] Uṣūl,
VII, 88–90.
[10] Daʿāʾim,
II, 366, no. 1331; 366–70.
[11] For instance, his opponents allot
the residuum to a unique daughter as radd, not by virtue of raḥim, in order to render null and void the right of Fāṭima
to succession to the Prophet (Daʿāʾim, II, 365–66, nos. 1329–30).
[12] Ibn ʿAbbās refers Q.
42:23 to ʿAlī, Fāṭima, al-Ḥasan, al-Ḥusayn,
and their offspring. This interpretation allows al-Nuʿmān to claim,
in his time, the rights of the Holy Family against the ʿAbbāsid
usurpers, who arrogated to themselves the imamate on the ground of being Ibn ʿAbbās’s
progeny, while Ibn ʿAbbās himself never claimed anything similar for
himself or any of his descendants. Also Q. 6:83–85, with its comparison between
Fāṭima and Mary, demonstrates that Jesus, although belonging to the
progeny of Abraham and Noah, inherits his place in the line from Mary, not from
any of his male ancestors (Daʿāʾim, II, 367, no. 1332).
[13] Muḥammad would call al-Ḥasan
and al-Ḥusayn “his sons” and “his offspring”; the first day he saw each
one of them he said: “Let me see my son” (Daʿāʾim, II, 367–68, no. 1332;
369:7ff.). This demonstrates that relationship through Fāṭima (thus,
through females) has superseded the agnatic tie.
[14] Uṣūl, VII, 105–8.
[15] Daʿāʾim,
II, 377–78, no. 1350.
[16] Uṣūl, VII, 112, no. 1; 113, no. 5.
[17] Uṣūl, VII, 115–16.
[18] Uṣūl, VII, 116–18.
[19] Uṣūl, VII,
121:4ff.
[20] Uṣūl,
VII, 107:8ff.; K. man, IV, 200–201.
[21] Al-Ṭūsī, K. al-Ḫilāf, 3 vols., al-Naǧaf 1956, II, 255:17f., masʾala 5 (cited as: Ḫilāf).
[22] Daʿāʾim, II, 378, no. 1352.
[23] Minhāǧ al-farāʾiḍ, fols. 12v, 13r (cf. GAS, I, 578,
no. 22).
[24] Qurb al-isnād, 346–47, no. 1254; Tahḏīb, IX, 270, no. 981; Musnad, II, 435, no. 12.
[25] Daʿāʾim, II, 379, no. 1355.
[26] Daʿāʾim, II, 379, no. 1353; 380:7f.
[27] See Minhāǧ, fol. 13v;
K. man, IV, 212, 222; Istibṣār, IV, 170–71, no.
644; Tahḏīb, IX, 326, no.
1172; 327, no. 1174; Ḫilāf, II, 257, masʾala 11; al-Ḥillī, Šarāʾiʿ al-Islām, 4 vols., al-Naǧaf
1389/1969 (cited as: Šarāʾiʿ),
IV, 30:13ff.; A. Querry, Recueil de lois
concernant les musulmans schyites,
2 vols., Paris 1871–72 (cited as: Recueil), II, 352, no. 210.
[28] S. H. Nasr, s.v. “Ithnā ʿAshariyya”,
in EI2, 277b:48ff.
[29] Uṣūl, VII, 85, no. 1 (Istibṣār, IV, 144, no. 538; Tahḏīb, IX, 275, no. 994); 86, no. 3 (Istibṣār, IV, 144, no. 540; Tahḏīb, IX, 275, no. 996).
[30] Uṣūl, VII, 85, no. 2 (Istibṣār, IV, 144, nos. 539, 542; Tahḏīb, IX, 275, no. 995; 276, no. 998).
[31] Uṣūl, VII, 86, no. 4 (K. man, IV, 251, no. 805; Istibṣār,
IV, 144, no. 541; Tahḏīb,
IX, 275–76, no. 997). Ibn Bābawayh (K.
man, IV, 251, no. 806; this matn
is inserted in a more extensive report and related with a completely different isnād in Istibṣār, IV, 145, no. 544; Tahḏīb, IX, 276, no. 999) relates another ḥadīṯ in which he lists
only the sword, the camel saddle, and the body clothes. Al-Ṭūsī (Ḫilāf, II, 301, masʾala
129) briefly relates the doctrine of his school. Two ḥadīṯs are peculiar to him (Istibṣār, IV, 144–45, no. 543; Tahḏīb, IX, 276–77, nos. 1000–1001), but there is
nothing new.
[32] Uṣūl, VII, 85,
no. 1.
[33] Uṣūl, VII, 85,
no. 2.
[34] Uṣūl,
VII, 86, no. 4.
[35] Sarāʾiʿ, IV, 25:14ff.; Recueil, II, 345, nos. 159–61.
[36] Manuals of Imāmī law generally
repeat the doctrine of al-Ḥillī; cf. N. B. E. Baillie (A
Digest of Moohummadan Law, 2nd ed., 2 vols., Lahore s.d., II, 279), Tyabji (p. 917), and Fyzee (p. 385).
[37] Ḫilāf,
II, 301, masʾala 129.
[38] K. al-Baḥr, 5 vols.,
[39] Ḫilāf, II, 301, masʾala 129.
[40] p. 385.
[41] Daʿāʾim, II, 394–96, no. 1393.
[42] Daʿāʾim, II, 348–49, no. 1297.
[43] p. 56, no. 182.
[44] Uṣūl, VII, 128–29,
no. 5; Istibṣār, IV, 152,
no. 573; Tahḏīb, IX, 298,
no. 1067.
[45] K. man, IV, 252, no. 812; Istibṣār,
IV, 154–55, no. 581; Tahḏīb,
IX, 300–301, no. 1075.
[46] Uṣūl, VII, 127,
no. 1 (Istibṣār, IV, 152,
no. 572; Tahḏīb, IX, 298,
no. 1066; a variant of this tradition is in Uṣūl, VII, 128, no. 4); 127–28, no. 2
(Istibṣār, IV, 151, no.
571; Tahḏīb, IX, 298, no.
1065. In K. man, IV, 252, no. 811,
with a somewhat different isnād,
related also in Istibṣār,
IV, 154, no. 578; Tahḏīb, X,
299–300, no. 1072, with a different isnād);
128, no. 3 (Istibṣār, IV,
151, no. 570; Tahḏīb, IX,
297–98, no. 1064); 129, no. 6 (77–78, no. 3); 129, no. 7 (K. man, IV, 252, no. 810, with a different isnād and with an addition in the matn, related also in Istibṣār,
IV, 152, no. 574, with the isnād
of al-Kulaynī and the matn of
Ibn Bābawayh; Tahḏīb,
IX, 298–99, no. 1068, with the matn of
al-Kulaynī); 129, no. 8; 129, no. 9 (Istibṣār,
IV, 152, no. 576; Tahḏīb,
IX, 299, no. 1070); 129–30, no. 10 (Istibṣār,
IV, 152, no. 575; Tahḏīb,
IX, 299, no. 1069); 130, no. 11 (K. man,
IV, 251, no. 807; Istibṣār,
IV, 152–53, no. 577; Tahḏīb,
IX, 299, no. 1071). See also K. man,
IV, 251–52, no. 808 (Istibṣār,
IV, 153, no. 579; Tahḏīb,
IX, 300, no. 1074), 809; Istibṣār,
IV, 153–54, no. 580; Tahḏīb,
IX, 301, no. 1077.
[47] Uṣūl, VII, 129,
no. 7.
[48] Uṣūl, VII, 130,
no. 11.
[49] K. man, IV, 251–52, no. 808.
[50] K. man, IV, 252, nos. 812–813; Istibṣār,
IV, 155:5ff., and no. 582; Tahḏīb,
IX, 300–301, nos. 1075–76. Al-Ḥillī
(Šarāʾiʿ, IV, 34–35/Recueil, II, 356, no. 242) agrees with
this principle; however his exposition reflects the uncertainty of the
doctrine. Manuals of Imāmī law generally repeat his teaching; cf.
Baillie, II, 295; Tyabji, 914, 915–16; Ameer Ali, Mahommedan Law, 2 vols., Calcutta 1912–29 (reprint New Delhi 1985),
II, 123; Fyzee, 383.
[51] Istibṣār, IV, 155:1ff.
[52] Istibṣār, IV, 153, no. 579; Tahḏīb, IX, 300, no. 1073.
[53] Ḫilāf, II, 301, masʾala 131.
[54] Zayd b. ʿAlī, Maǧmūʿ
al-fiqh,
[55] See ʿAbd al-Razzāq, Al-Muṣannaf,
11 vols., Karachi 1390–92/1970–72, X,
248:15f.
[56] See my Teorie sulle origini del diritto
islamico, Rome 1990, 19–35: «Il ‘Corpus
Iuris’ di Zayd b. ʿAlī».
[57] Daʿāʾim, II, 396–97,
no. 1394.
[58] The only concern of the jurists is
generally to avoid fractional numbers. See Daʿāʾim,
II, 397–400; al-Saraḫsī, Kitāb
al-Mabṣūṭ, 30
vols., Cairo 1324–31/1906–13, XXX, 55–59; Ḫalīl, Il “Mukhtaṣar”, trans. by I. Guidi
and D. Santillana, 2 vols., Milano 1919, II, 465–76, 830–32, 832f., 833–36,
837; al-Nawawī, Minhâj aṭ-Ṭâlibīn,
trans. by L. W. C. van den Berg, 3 vols., Batavia 1882–84, II, 248–57; Baillie,
II, 312–21; D. Santillana, Istituzioni,
2 vols., Rome 1938, II, 529.
[59] H.
M. Jafri, Origins and Early Development
of Shi‘a Islam,
[60] J.
Schacht, The Origins of Muhammadan
Jurisprudence,