Identifying the Legislator of Islamic Law | Sayyid Ali al-Sistani – Part 1

Below is a translation of an extract from the book Ikhtilāf al-Ḥadīth which is a compendium of lessons given by Ayatullah Syed Ali Hussaini al-Sistani in the year 1396 AH, transcribed by Syed Hashim Hashimi.

There are three opinions on this issue:

The first opinion: The legislator of laws is only Allah (swt), due to the apparent meanings of some blessed verses whereby legislation is claimed for Allah (swt) for example,

وَما يَنطِقُ عَنِ الهَوىٰ إِن هُوَ إِلّا وَحيٌ يوحىٰ

[53:3-4] “Nor does he speak out of [his own] desire. It is just a revelation that is revealed [to him]”

Whereby this indicates that the role of the prophet is only propagation. Waḥīd Bihbahānī, in the introduction to the book of Rijāl of Mīrzā Muḥammad, has attributed this opinion to most of the scholars.

The second opinion: What has been mentioned by Ākhund al-Khurāsānī in al-Kifāyah, that the legislator for all laws is the Holy Prophet (s) and the Imams (as). As for revelation or divine inspiration, it is only a means of revealing to their blessed souls the benefits and harms [of the laws]. Thereafter, they themselves legislate the laws based on these revealed benefits and harms.

And this opinion is not correct because the Quran was revealed with its words as in the verse:

لا تُحَرِّك بِهِ لِسانَكَ لِتَعجَلَ بِهِ

[75:16] “Do not move your tongue with it to hasten it.”


and in the verse

نَزَلَ بِهِ الرّوحُ الأَمينُ

[26:193] “brought down by the Trustworthy Spirit”

In addition, the Quran contains specific commands and prohibitions addressing the Ahl al-Bayt (as) and the Holy Prophet (s), so how is it possible that these commands and prohibitions were initiated from the Imams (as)? Furthermore, some blessed verses clearly state that some laws are associated only to Allah (SWT) and He is the one who legislated them, such as:

شَرَعَ لَكُم مِنَ الدّينِ ما وَصّىٰ بِهِ نوحًا

[42:13] “He has prescribed for you the religion which He had enjoined upon Noah” and in al-Munjid, شرع للقوم means decreed legislation.


And His words,

لِكُلٍّ جَعَلنا مِنكُم شِرعَةً وَمِنهاجًا

[5:48] “For each [community] among you We had appointed a code [of law] and a path”


ثُمَّ جَعَلناكَ عَلىٰ شَريعَةٍ مِنَ الأَمرِ

[45:18] “Then We set you upon a clear course of the Law”.

And there are verses that ascribe the act of prohibition to Allah (swt) such as:

تَعالَوا أَتلُ ما حَرَّمَ رَبُّكُم عَلَيكُم

[6:151] “Come, I will recount what your Lord has forbidden you from”


إِنَّما حَرَّمَ عَلَيكُمُ المَيتَةَ

[2:173] “He has forbidden you only carrion”


إِنَّما حَرَّمَ رَبِّيَ الفَواحِشَ

[7:33] “My Lord has only forbidden indecencies”

and therefore it is improbable that it is the Prophet (s) who is the legislator in all laws.

The third opinion: The significant laws, that are on the primary level, have been legislated by Allah (swt) but the laws that are of a secondary level (in our terms), have been legislated by the Prophet (s). Therefore, the Prophet has been delegated some form of legislative power.

This method can also be observed in modern legislative processes whereby there is a fundamental law and then another law to supplement the fundamental law. Thus, there is a council whose role is to legislate laws, but this legislation is done in light of the fundamental laws. This new law is then counted as completing the original law or legislation of a secondary level.

In Islamic law, we see that the Quran contains the principles of legislation and decrees. As for the Prophetic Sunnah, it contains legislation in the subordinate areas (jihat al-tafrī’īyyah). By subordinate, we do not mean opposite to principles (uṣūl). But we mean laws of a secondary level. So things that have the most harm, like alcohol, have been prohibited in the Quran but prohibition of every intoxicant has been prohibited by the Prophet (s) due to them containing the same reason of prohibition in alcohol and hence prohibition of alcohol is thought of as the primary ruling while prohibition of every intoxicant is supplemented to it.

And this view has been accepted by a group [of scholars] such as: Kulaynī, as observed in al-Kāfī, Majlisī in Mirā’t al-‘Uqūl under the discussion of Tafwīḍ, Syed ‘Abdullah Shubbar in Maṣābīḥ al-Anwār (pg. 37), Ṣāḥib al-Ḥadā’iq in the introduction of al-Ḥadā’iq (pg. 8), Muḥaddith Astarābādī in the introduction to Tafsīr al-Burḥān, Mullā Ṣāliḥ Māzandarānī in the commentary of Uṣuul al-Kāfī. Muḥaqqiq Nā’īnī in Ajwad al-Taqrīrār, says:

“If you say the Prophet (s) does not speak of his own whim then what does it mean to command in opposite to the command of Allah…I say: it is possible that the will of the Prophet (s) itself be a cause for an act to be mandatory upon the religiously responsible (mukallaf) just the way it is not farfetched for this to be due to the religion being designated to him (s) (tafwīḍ) which is proven through Ijma (unanimous opinion of the scholars) and ḍarūrah (necessity of religion).”[1]

Some Sunnis have even accepted this view with regard to the Prophet (s). In Tafsīr al-Manār, he says:

“and connected to this issue is the matter of Tafwīḍ, which is: is it allowed for Allah to designate the matters of the Ummah to the Prophet (s) by telling him (s), rule amongst them by your ijtihad and whatever you rule is correct or you only rule by what is correct. In it there are 2 views: the more acceptable one is that it is allowed.”[2]

And in the book Sharḥ Nahj al-Balāgha:

“And many of the Uṣūlīs have opted for the view that Allah (swt) told the Prophet (s) rule whatever you wish in the Shariah, for you do not rule except that which is correct, and he (s) used to rule without referring…”[3]

However, it can be said that these words do not totally represent our chosen view because it metaphorically ascribes the command of the Prophet (s) to the command of Allah (swt) since there is no specific approval from Allah for every command of the Prophet (s). Rather there is a general approval. On the other hand, the chosen view says that the Prophet (s) has a right in some types of legislation and Allah (swt) allows all laws legislated by him (s) in a specific way even though He (swt) has also previously given all-encompassing permission.

And there are many narrations that prove delegation of legislation to the Prophet (s) and these narrations are of two categories:

  1. Narrations that clearly prove right of legislation for the infallibles (as) as a universal principle
  2. Narrations connected with the stage of implementation [of laws] which indicate initiation of the Prophet (s) in legislating some of the laws

The first category – in it there are various narrations:

The first narration: What is mentioned in the introduction to Jāmi’ al-Ahādith[4] and in al-Wāfi volume 3, narrated from al-Kāfi with two chains: one is Ṣaḥīḥ from Abu Ishāq al-Nahwi (and he is Tha’laba ibn Maymun who is reliable) from Imam Sādiq (a) and the other is from Imam Bāqir (a):

محمد بن يحيى، عن أحمد بن أبي زاهر، عن علي بن إسماعيل، عن صفوان ابن يحيى، عن عصام بن حميد، عن أبي إسحاق النحوي قال: دخلت على أبي عبدالله عليه السلام فسمعته يقول: إن الله عزوجل أدب نبيه على محبته فقال: ” وإنك لعلى خلق عظيم” ثم فوض إليه فقال عزوجل: ” وما آتاكم الرسول فخذوه وما نهاكم عنه فانتهوا” وقال عزوجل: ” من يطع الرسول فقد أطاع الله” قال: ثم قال وإن نبي الله فوض إلى علي وائتمنه فسلمتم وجحد الناس فوالله لنحبكم أن تقولوا إذا قلنا وأن تصمتوا إذا صمتنا ونحن فيما بينكم وبين الله عزوجل، ما جعل الله لاحد خيرا في خلاف أمرنا.

عدة من أصحابنا، عن أحمد بن محمد، عن ابن أبي نجران، عن عاصم بن حميد، عن أبي إسحاق قال: سمعت أبا جعفر عليه السلام يقول ثم ذكر نحوه.

“Allah (swt) brought up His Prophet upon His Love, so He Said [68:4] And you are upon magnificent morals. Then He delegated to him, so Allah (swt) said [59:7] and whatever the messenger gives you, accept it, and from whatever he forbids you, keep back. And Allah (swt) said [4:80] Whoever obeys the messenger, so he has obeyed Allah’. He (the narrator) said, ‘Then he said: ‘And the Prophet of Allah delegated it to Ali and entrusted him. So you (Shias) submitted and the people rejected. So, by Allah, we would love it if you all would speak when we speak, and that you should be silent when we are silent, and we are in what is between you all and Allah (swt). Allah had not made goodness to be for anyone in opposition to our orders.”

And this narration has been reported in many sources such as Mustadrak, Baṣāir al-Darajāt and Faḍā’il al-Shī’a.

However, the relation between this narration and the general delegation of legislation is not clear. This is because the verse “and whatever the messenger gives you, accept it…” could be related to the second stage i.e. those commands and prohibitions that have been issued by them (a) as political authorities (wulātul amr) and not associated to the right of general permanent legislation. And the end of the narration “So, by Allah, we would love it if you all would speak when we speak…” seems to be connected with the third stage i.e. the stage of declaring and concealing, that is, in matters where we (a) keep quiet about certain rulings then you also be quiet and when we proclaim the ruling, then follow it and commit to it. Therefore, the relation between this narration and the stage of general legislation – as has been said – needs to be further deliberated.

The second narration: with two ṣaḥīḥ chains, from Tha’laba from Zurārah who heard Imam Bāqir (a) and Imam Sādiq (a) say:

أبوعلي الاشعري، عن محمد بن عبد الجبار، عن ابن فضال، عن ثعلبة بن ميمون، عن زرارة أنه سمع أبا جعفر وأبا عبدالله عليهما السلام يقولان: إن الله تبارك وتعالى فوض إلى نبيه صلى الله عليه وآله أمر خلقه لينظر كيف طاعتهم، ثم تلا هذه الآية ” ما آتاكم الرسول فخذوه وما نهاكم عنه فانتهوا “.

محمد بن يحيى، عن أحمد بن محمد، عن الحجال، عن ثعلبة بن ميمون، عن زرارة مثله.

“Allah (swt) delegated to His Prophet the matters of His creatures in order to see how their obedience would be’. Then He (A) recited this Verse [59:7] “and whatever the messenger gives you, accept it, and from whatever he forbids you, keep back.

This narration is possibly more apparent than the first one because His (a) words “delegated to His Prophet the matters of His creatures” are general since the ‘creatures’ here is more general than those people who were at the time of the Prophet (s) and He (s) was their guardian, in addition to being a propagator (muballigh) and legislator (musharri’), and since the meaning of creatures is absolute, regardless of whether they are living at His (S) time or not, the narration thus apparently has the meaning of a general permanent delegation of legislation and not delegation of temporal political rulings (ahkām wīlāīyyah).

However, because the narrator in this narration is Abu Ishāq al-Nahwi like the first narration, even though he was mentioned by teknonym in the first narration and explicitly named here, it is possible that this could indicate the absence of the term “matters of His creatures” in this narration, and this is by comparing this narration to the first one where the same narrator has narrated it. At the very least, there is a doubt about the existence of such a phrase in the second narration and it’s originating from the imam (AS), and perhaps it was from the narrator. And this objection is connected to the idea of logical correction (al-taṣḥīḥ al-qiyāsī), which is based on the possibility of both narrations being one because the same narrator has narrated similar content from the same Imam.

The third narration: what has been narrated in al-Kāfi from Abu Muhammad ibn al-Hassan al-Ṣaffār, and also in Basāir al-Darajāt:

محمد بن يحيى، عن محمد بن الحسن قال: وجدت في نوادر محمد بن سنان عن عبد الله بن سنان، قال: قال أبوعبدالله عليه السلام: لا والله ما فوض الله إلى أحد من خلقه إلا إلى رسول الله صلى الله عليه وآله وإلى الائمة، قال عزوجل: ” إنا أنزلنا إليك الكتاب بالحق لتحكم بين الناس بما أريك الله ” وهي جارية في الاوصياء عليهم السلام.

“I found in Nawādir of Muhammad Bin Sinan, from Abdullah bin Sinan who said, ‘Abu Abdullah said: ‘No, by Allah! Allah did not delegate to anyone from His creatures except to the messenger of Allah (S) and to the Imams. Allah (swt) said [4:105] Surely, We have Revealed the Book to you with the Truth that you may judge between people by means of that which Allah has shown you, and it flows among the successors”

And it has been narrated in Wasā’il from Baṣā’ir.

However, what is observed here is, firstly, this narration “I found in the miscellaneous of Muhammad Bin Sinan” is transmission through finding (wijādah) and not through hearing; and there is great discussion surrounding Muhammad ibn Sinān, and it is possible that he was connected to some groups that instituted exaggeration (ghulūw), and other uncommon beliefs that have some connection with the current discussion, since the Ghulāt (exaggerators) believed that absolutely all legislation was in the hands of the Imam (a). So, the Imam (a), according to them, can possibly do any action he wishes even if that means prohibiting all the obligatory acts or making all impermissible acts permissible. The remnants of these sects still exist today like the sects of the Agha Khānīyya and the Īsmāilīyyah and Muhammad ibn Sinan can possibly be linked to these sects due to the presence of many sayings and narrations about his personality and therefore we do not rely on his narrations.

Secondly, it is possible to say that the narration does not indicate this idea [of delegation in legislation] because the words “that you may judge between people by means of that which Allah has shown you…” is apparently about the stage of authority in implementation [of laws] and does not have a link to the stage of general legislation.

The fourth narration: It is what has been narrated in al-Kāfi from Ali ibn Ibrahim from his father from Ibn Abi ‘Umayr from Ibn Udhayna from Fuḍayl ibn Yassar (and the chain is ṣaḥīḥ):

“I heard Imam al-Sādiq (a) telling some of the companions of Qays al-Māsir…then [the Prophet] legislated the nawāfil [supererogatory prayers] 34 [units]…and the fasts of Shabān…and prohibited intoxicants from every drink”

The last line proves the existence of some instances that the Prophet (s) legislated. So this narration, by looking at its ending, proves delegation of general legislation even though some instances in the beginning of the narration are concerned with rulings connected to general authority (wilāyah al-‘āmah) such as “the social affairs of the creatures” and similar to this, many narrations have been mentioned in al-Wāfi[5].

And from it, what is in the introduction of Jāmi’ al-Ahādith from ‘Uyūn:

“Narrated to us my father and Muhammad ibn Hassan al-Walid, they said: narrated to us Sa’d ibn Abdullah, he said: narrated to me Muhammad ibn Abdullah al-Masma’ī, he said: narrated to me Ahmed ibn al-Hassan al-Maythami…”

The narrators are all reliable except Muhammad ibn Abdullah al-Masma’ī. And at the end of this narration, Sadūq says “The author of this book says, our teacher had a negative opinion about Muhammad ibn Abdullah al-Masma’ī, the narrator of this narration, and I only related this fragment in this book because it was in the book of mercy (Kitāb al-Rahma) and I read it to him and he did not reject it and he narrated it to me.” And in al-Faqīh “He saw the Book of Mercy of Sa’d ibn Abdullah, from amongst the Usul (collections) and books that are the point of return and reference…”

Therefore, when Saduq was reading this book, the book of mercy which is from the reliable sources, his teacher – ibn Walīd – would guide him regarding the doubtful and censured narrations. Furthermore, his father did not criticize al-Masma’ī, rather, only his teacher – ibn Walīd – has criticized him. However, when he came across this narration as it was being read to him, even though his habit was to criticize the weak narrators, he did not criticize the narration which shows that ibn Walīd relied on it. Also, it can be said that Saduq does not narrate in ‘Uyūn Akhbār al-Riḍā except those narrations that he relied upon. And this is suitable to the tittle “Ayn” [as in the title ‘Uyūn Akhbār al-Riḍā] because a report that is “Ayn” is one that is authentic, as has been mentioned in ‘ilm al-dirāyah.

It is possible that the reason why Ibn al-Walīd did not criticize al-Masma’ī was because he knew this narration existed in the book of Ahmad ibn al-Hassan al-Maythami who himself was reliable and correct in narrating. And the book, even though in its path is Sa’d ibn Abdullah from Masma’ī, but there are other paths to it other than the path of Masma’ī, of which some were probably correct and hence Ibn Walīd relied on this narration. And the correctness of the narration can be supported by what Wahīd Behbahāni wrote in the footnotes of the Rījal of Mirza Muhammad, that Muhammad ibn Abdullah al-Masma’ī is not from the exemptions of Nawādir because Muhamad ibn Ahmad ibn Yahya narrates from this person and they have not excluded the narrations of this person. And now we mention the text of the narration:

“One day a group of people had gathered around Al-Riḍā (a) and were arguing about two opposing traditions on the same subject which had been narrated on the authority of Allah’s Prophet (s). They asked the Imam (a) about it. He (a) said, “Indeed Allah (swt) has forbidden the impermissible things and has allowed the permissible things and has made incumbent the incumbent deeds. One cannot rely on or act according to any traditions which allow what Allah has forbidden or forbid what Allah has allowed. One cannot abrogate any of the incumbent deeds which Allah has made incumbent (upon the people) in His Book and are clearly supported by traditions for which there are no instances of having been abrogated. Allah’s Prophet (s) never allowed what Allah forbade, never forbade what Allah allowed, and never changed any of Allah’s decrees or anything which Allah made incumbent (upon the people). He was completely subject to Allah’s revelations and decrees and only delivered them (to others) from Allah. That is what Allah (swt) said, [2:30] ‘…I follow but that which is revealed to me by inspiration…’ The Prophet (s) followed only Allah and delivered what Allah had ordered him to deliver.

I asked the Imam (a), ‘What should we do in instances in which there is a ruling on something from you – the Members of the Holy Household – which does not exist in Allah’s Book, but it is in the traditions and there is also an opposite tradition narrated on your authority.” The Imam (a) answered, “Yes, sometimes Allah’s Prophet (s) forbade against something. That is a kind of forbidding which is like that of Allah. It is no longer permitted to do what the Prophet (s) has forbidden against. He (s) has also ordered to do things that are considered to be like the orders of the Allah (swt). His orders are according to Allah’s orders. Therefore, whenever there is a prohibition by Allah’s Prophet (S) for which there is a tradition that opposes it, acting according to that tradition is not permissible. The same holds true for what the Prophet (s) has allowed. That is because we (Members of the Holy Household) never allow (the people to do) what Allah’s Prophet (s) has not allowed (them) to do, and never order (the people) to do the opposite of what Allah’s Prophet (s) has ordered (the people) to do – except for in conditions in which there is some fear of harm. It will never be the case that we allow what Allah’s Prophet has forbidden or forbid what Allah’s Prophet (s) has allowed, since we (Members of the Holy Household) are all the followers of Allah’s Prophet (s). We submit to the Prophet’s (s) orders and admonishments, just as Allah’s Prophet (s) submitted to Allah’s orders. Allah said, [59:7] ‘…So take what the Messenger assigns to you, and deny yourselves that which he withholds from you…’ Indeed, Allah’s Prophet (s) has forbade against things, which are not forbidden, but are disliked. He (s) has also ordered to do things, which are not incumbent upon one to do, but are better and preferred in religion…”

This narration is clear in dividing the duties of the Prophet (s). Sometimes it is only to propagate, and this is with regards to the laws legislated by Allah (swt). And at other times, it is delegation (tafwīḍ) like in some rulings where it was the Prophet (s) himself who was the legislator for impermissible or obligatory things and the Imams (a) did not oppose these legislative rulings because they are followers of the Sunnah of the Prophet (s). Yes, if there were some commands from the Prophet (s) but the command in it was not an obligatory command, then it is possible for the Imams (a) to offer leniency.

This is the end of the discussion about the major premise of right of delegation [in legislative matters].

[1] Ajwad al-Taqrīrāt, Mīrzā Ḥusayn Nā’īnī, vol. 2, pg. 304

[2] Tafsīr al-Manār, Muḥammad Rāshid Riḍā, vol. 5, pg. 3936

[3] Sharh Nahj al-Balāgha, Ibn Abī al-Ḥadīd al-Mu’tazalī, vol. 16, pg. 159

[4] Jāmiʿ aḥādīth al-Shīʿa fī aḥkām al-sharīʿa, Ayatullah Burujardi, Hadith 167

[5] Al-Wāfi, Page 143