Identifying the Legislator of Islamic Law | Sayyid Ali al-Sistani – Part 2

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As for the narrations that indicate specific instances of laws that have been legislated by the Prophet (s), there are very many and we will divide them into 4 groups.

First group – Narrations that indicate some independent laws that were instituted by the Prophet (s) and he himself legislated them, whereby we refer to the Prophet (s) as the divine legislator. And these narrations are of several types;

1. The many narrations that have been reported in the chapter of prohibition of every non-alcoholic intoxicant. Among them is the Saheeh narration of Fudhayl, whereby it is mentioned “and Allah forbade alcohol in itself, and the Prophet (s) forbade every intoxicating drink, so Allah (swt) allowed him (s) that,” consequently the prohibition of every other intoxicant has been attributed to the Prophet (S). And there are some narrations in Wasāil[1], such as another narration of Fudhayl, and narrations from Muhammad ibn Sinān, Ishāq ibn Ammār, Sulaymān ibn Khālid, Abu Baseer and others. All of them are explicit that the prohibition of non-alcoholic [intoxicants] was from the Prophet (s) and there is also a narration in al-Wāfi[2].

2. Narrations in the chapter of prohibition of predators with fangs and talons as in Wasāil, chapter of forbidden foods. Among them is what Kulayni narrates: from Ali ibn Ibrahim from his father from ibn Mahbūb from Samā’ ibn Mehrān who said, “I asked Abu Abdullah (a) about the edible from the birds and the wild beasts. So he said: ‘The Messenger of Allah prohibited everything with claws from the birds, and everything with fangs from the wild beasts.” These rulings are independent laws and their legislation was permanent and not temporary as also indicated by the narration of Ishāq ibn Ammār.

3. Narrations about giving to the grandfather a sixth [from inheritance] such as the narration of Ishāq ibn Ammār and others which have been mentioned in Wasāil in the chapter of ‘Right of the grandfather’ where it is explicitly mentioned that it was the Prophet (s) who legislated [this ruling].

4. Narrations that indicate that the Prophet (s) legislated the nawāfil (supererogatory prayers) among which is the mu’tabara of Fudhayl: “then the Prophet legislated the nawāfil 34 [units].” And in the narration of Abdullah ibn Sinān from Imam al-Sādiq (A), “I said: for what reason did the Prophet (S) obligate 8 [units] before Dhohr…”

5. Narrations about blood money for a life and an eye that indicate that it was the Prophet (S) who instituted and legislated them.

6. Narrations about Madinah being sacred (haram) whereby Makkah was made sacred by Allah (swt) and Madina was made sacred by the Prophet (s). And there are many narrations about this such as in Wasāil[3] among which is:

From Zurārah from Imam al-Bāqir (a), He said, “the Prophet (s) sanctified Madina, what is between the 2 hills.” And from among them is the narration of Fudhayl ibn Yassār, “He (a) said: Indeed Allah after bringing up His Prophet, the best upbringing, after upbringing He delegated to him (s). Allah prohibited alcohol and the Prophet (s) prohibited every intoxicant, so Allah allowed for him that. Allah sanctified Makkah and the Prophet (s) sanctified Madina, so Allah allowed for him that.” Therefore, the sanctification of Madina is from the legislation of the Prophet (s) and his instituting.

7. Narrations that indicate that the recommendation of having two witnesses in Nikkāh is from the legislation of the Prophet (s). Such as in al-Wāfi[4] from Dāwud ibn Hasīn: “from Imam al-Sādiq (a) about refuting the Sunni jurists, I said: do you say that it is not allowed except the witnessing of 2 just, male witnesses? He (a) replied: They lied, may Allah curse them. They devalued and took lightly the orders of Allah and His commands and exceeded and magnified what Allah devalued. Indeed Allah commanded divorce with 2 just male witnesses and they allowed a divorce without even one witness. And nothing came from Allah for Nikkāh so the Prophet (s) instituted in that 2 witnesses, as nurturing (ta’dīban) and so that the child and inheritance may not be rejected.”

Therefore, this is a recommended matter through the legislation of the Prophet (s). However, the Sunnis have adhered to the requirement of 2 witnesses in Nikāh while the divine Sharīa’ has observed leniency in Nikkāh and have dispensed with the necessity of having 2 just witnesses in divorce while [the Sharīa’] has observed strictness in it. So the thing that was a recommended practice, since it was initiated as a form of nurturing [the society] and so that the child and inheritance may not be rejected, they [the Sunnis] adhered to it, made it obligatory and were severe in it, while that which was initiated as a form of strictness and precaution, they laxed in it.

All of these rulings are from the first group which are independent laws.

Second group – this refers to those narrations that indicate the idea of completing [divine] legislation such as in the case of the last 2 units in the 4-unit prayers or the last unit in the maghrib prayer. And there are many narrations mentioned at the beginning of the discussion on prayer, and in the discussion on mistakes in prayer, and in the discussion on why doubts that occur in the first two units invalidates prayer while doubts in the last 2 units do not invalidate the prayer. Among them is the Mu’tabara of Fudhayl:

“Allah obligated prayers: 2 units, 2 units, [totalling] 10 units. And the Prophet (s) added to the 2 units [a further] 2 units and to maghrib 1 unit and so they became equal to the mandatory (farīdha). And it is not allowed to omit them except while on a journey. And the unit of maghrib was singled out and left in its place both on a journey and at home. So Allah allowed all of that and thus the mandatory became 17 units.” Therefore, in the prayer, there are 2 legislations: the legislation of 10 units which is from Allah and the legislation of the other units comprising prayer which is legislation from the Prophet (s).

The Saheeh narration of Zurārah that has come in al-Wāfi[5]: from Imam al-Bāqir (a):

“What was made compulsory by Allah on the servants in prayer was 10 units and in them is the recitation of the Surahs (Qirā’ah).” And the Imam (a) then said: “so the Prophet (s) increased 7 [units]. In them there is doubt but there is no Qirā’at [recitation of Sura al-Fāteha and another Sūra] in them.” The narration proves 2 things:

i) What has been obligated by Allah (swt) can not be performed with uncertainty but must be acted upon with certainty and that is the first 2 units in which having doubts invalidates the prayer, in contrast to what the Prophet legislated which is the last 2 units in which doubt is allowed

ii) The ruling of Qirā’ah is obligatory in the first 2 units and not in the last 2, contrary to some of the Sunnis, like the Shāfīis, who say that Qirā’ah is obligatory in all units

And similar to it is another Saheeh narration of Zurārah in Jāmi’ al-Ahādith[6]:

“He (s) said ten units; 2 from Dhohr, 2 from Asr, 2 of Fajr, 2 from Maghrib and 2 from Ishā [in it] is not allowed doubts. And [legislation] was delegated to Muhammad (s) so the Prophet added 7 [units], they are Sunnah and do not contain Qirā’ah.”

And this narration is related to an important discussion regarding the difference between the concept of Farīdha and the concept of Sunnah. Some have opined that the meaning of Farīdha is that which has been mentioned in the Qurān and the meaning of Sunnah is that which has been reported by the Prophet (s), while others have opined that Farīdha is that which has been enforced by Allāh even if it may be through the Qurān and Sunnah is what has been enforced by the Prophet (s). This [narration] supports the second view because the number of the units have not been mentioned in the Qurān and yet they have been counted as among the Farīdha since they have been commanded by Allāh.

And similarly in Wasāil reporting from Mahāsin with a Saheeh chain from Ali ibn Mahziyār who said:

“Some people asked Imam al-Sādiq (s) what is it with the Maghrib prayer that the Prophet did not shorten it neither while travelling nor at home and nor in their nāfilah (supererogatory prayer)? He (s) said: Prayer used to be 2 and 2 units so the Prophet (s) added to every 2 units a [further] 2 units…”

And in Jāmi’ al-Ahādith[7] from al-Sadūq with his chain from Saīd ibn al-Musayib who asked Ali ibn al-Hussain (a):

“He said. When was the prayers obligated upon the Muslims as it is today? So He (a) said: in Madīna when the proclamation was made and Islam was strengthened and Allah made Jihād obligatory upon the Muslims so the Prophet (s) increased in the prayers 7 units…”

And these narrations can not be counted as solitary narrations (akhbār ahād) rather they are mustafīdha which we can commit to it having tawwātur ijmāli by looking at all the narrations together.

In summary, the Imams (A) in these narrations emphasised on introducing the companions to the meaning of Farāidh and Sunnah and the difference between them whereby Farāidh are distinguished by strictness and limitations such that no doubts are allowed in them i.e. doubts in them can not be corrected in any way. As for Sunnah, it is possible to do that i.e. doubts in the last 2 units can be corrected and resolved.

This was the second group of narrations that were related to completing [divine] legislation by the Prophet (s).

Third group – narrations that indicate a different form of completion, known as completing legislation in application (mutammim al-ja’l al-tatbīqi) and its form is as follows.

We had mentioned in the discussion of correctness and generality (saheeh wa al-a’am) and in the discussions about declaratory laws (ahkām waḍi) that Salāh and Zakāt are from the conventional quiddities (māhiyāt al-i’tibāriyah). So Salāh is a term for conventional humility and gentleness and this concept is present in all divine religions but the difference is only in its instances and applications. This is similar to the concept of dinār since it is a single conventional concept but in some countries, it is instantiated on one type of paper while in other countries it is on a different paper and Salāh is the same. It was present and legislated in all divine religions as has been elucidated in the noble Qurān but it was not in this Islamic form in its external appearance. Therefore, completing legislation in application means that the primary legislation was in relation to the general conventional concept such as attributing of mandatoriness (wujūb) to Salāh in the Qurān and completing this legislation is in the stage of implementation. This is because conventional quiddities can not be forcefully imposed on its instances in contrast to ontological quiddities (māhiyya al-takwīnīyah). Rather, the correctness of applying it to its instances requires the intervention of legislation as has been mentioned in the narrations regarding the concept of Salāh and Zakāt.

In Jāmi’ al-Ahadīth[8] from al-Kāfi with his chain:

From Hammād from Hurayz from Zurārah from imam al-Bāqir (a) who said, “Allah obligated Salāh and the Prophet (s) legislated 10 forms: Salāh at home, Salāh on a journey…”

These narrations explicitly state that the Prophet (s) applied these conventional quiddities in these forms.

And in al-Khisāl, narrated to me my father: narrated to us Sa’d ibn Abdullāh from Ya’qub ibn Yazīd from Muhammad ibn Isā from Hurayz from Zurārah (and the chain is Saheeh) from Imam al-Baqir (a) who said: “Allah obligated (and he mentioned the same)… until He (a) said: and the Salāh of solar and lunar eclipse.”

In the chapter of Zakāt in Wasāil[9] from Muhammad ibn Yā’qub from Ali ibn Ibrāhim from his father from Hammād from Hurayz from Zurārah and Muhammad ibn Muslim and Abu Baseer and Yazid ibn Muāwiya al-‘Ajli and Fudhayl ibn Yassār, all from Imam al-Bāqir (a) and al-Sādiq (a), they (a) said:

“Allah obligated Zakāt on wealth with Salāh and the Prophet (S) instituted it on 9 things and the Prophet (S) pardoned it from other than these [9 things].”

And the purport of His words [9:103] “take charity from their possessions” was instantiated on 9 things by the Prophet (s).

And in the narration of Abu Bakr al-hadhramī, which is after the previously mentioned narration, “the Prophet (s) ordered Zakāt on 9 things and He (s) pardoned other than those.”

And narrations that ascribe this act to the Prophet (S) are many in the chapter of Zakāt. However, in some narrations this legislation has been ascribed to Allah (SWT) such as in Wasāil in the chapter of Zakāt[10] “and Allah obligated on gold and silver…” and perhaps it is as a form of permitting such that Allah approved the legislation of the Prophet (S) and whoever obeys the Prophet has obeyed Allah (swt).

The fourth group – among the narrations that indicate that the Prophet (s) legislated laws are those narrations that indicate that some parts of compound religious acts have been legislated by Allah (swt) while other parts have been legislated by the Prophet (s). This is different from what was mentioned as the third type and there are many narrations that prove this:

Among them is the famous narration of ‘not repeated’ (lā tuād) which is the saheeh narration of Zurārah:

“Salaah is not repeated except due to 5: Purification (al-tahūr), time (al-waqt), direction (al-Qiblā), bowing (al-rukū) and prostration (al-sujūd). Then He (a) said: Qirā’ah is Sunnah, Tashahud is Sunnah and the Sunnah can not invalidate the Farīdhah.”

And the narration of Hamād from Hurayz from Zurārah who said:

“I asked Abu Ja’far (a) [al-Bāqir] about the compulsory (fardh) in Salāh. He (A) said: time (al-waqt), Purification (al-tahūr), direction (al-Qiblā), concentration (al-Tawajuh), bowing (al-rukū), prostration (al-sujūd) and supplication (al-duā). I asked, and apart from these? He (a) said, Sunnah…” and the like of it narrations that have been mentioned in the chapter of obligations of prayer and the chapter of timing in al-Wāfi.

And we mentioned that this group differs from the third group because completing legislation in the third type was related to the stage of implementing a concept on its instances in the sense that the legislated from Allah was the obligation of the original concept like Salāh for example, and the legislation from the Prophet (s) was applying that original concept in the state of being at home in one way and while on a journey in another way. However, completing legislation in this type is about altering the actual instance-ness of an instance (misdāqiyatul misdāq) and that is by adding some parts like tashahhud and Qirā’ah even if that may be in the actual legislation of Allah (swt) such as in the first 2 units and ordering the parts by bringing some earlier and some later even though that may be between legislations of Allah from the compulsory parts or even from what was legislated by the Prophet (s) like the obligation of rukū and Sujūd in the last 2 units.

The result is that these blessed narrations, all 4 types of them, prove the right of legislation for the Prophet (s) in addition to the general narrations we had mentioned previously[11] and that this right was acted upon externally so that the laws we have with us today can be divided into 2 parts: those that were legislated by Allah and those that were instituted by the Prophet (s), regardless of whether they are defining laws (ahkām taklifī) or declaratory laws (ahkām wadh’ī).

And many scholars have accepted this view such as Sheikh al-Kulayni and Muhaqiq Nāīnī.

There are some narrations that indicate that whatever was delegated to the Prophet (s) was also delegated to the Imams (a) expect prophethood. And among what was delegated to Him (s) was the right of permanent legislation and therefore this right is also for the Imams (a) and allusions had been made to this idea in some of the previous narrations.

However, there are other narrations in opposition to these narrations that indicate that every ruling that the Imams give, are only according to the Qurān and Sunnah (prophetic narrations) and so there is no opinion or ruling in addition to the Qurān and Sunnah. Rather, some of these narrations even mention that their (a) knowledge is “principles of knowledge inherited by the great from the great.”

However, these are in contradiction with a large group of narrations that apparently indicate that there are some laws that are not found in the Qurān and Sunnah and that the Imams (a) were prosperous in conveying them and these narrations have been mentioned in various forms and can be found in the introduction to Jāmi’ al-ahādith. We do not wish to delve into the discussion of the Imams (a) and the evidence that proves this for them and it is enough what has been mentioned regarding the Prophet (s) and there is no obstacle to suspend judgement (tawaqquf) in the matter of the right of the Imams (a) to legislate due to the conflict of narrations and the weakness of many of them from the first group.

This was a brief discussion on this topic – the right of permanent legislation for the Prophet (s) and his Ahl al-Bayt (a) – whereby we observed that the narrations do prove it as well as many scholars opining it and some have even claimed ijmā (unanimous opinion of scholars) and ḍarūrah (necessity of religion) in it.


[1] Sheikh Hurr al-Āmilī, Wasāil al-Shīa, V17 P259

[2] Mulla Muhsin Faydh Kāshāni, al-Wāfi, V2 P142

[3] Sheikh Hurr al-Āmili, Wasāil al-Shīā, V11 P284, 585

[4] Mulla Muhsin Faydh Kāshāni, al-Wāfi, V9 P142

[5] Al-Wāfi, v5 P12

[6] Ayatullah Burujardi, Jāmi’ al-Ahādith, hadith 16, Page 447

[7] Jāmi’ al-Ahādith, V2 P31 Hadith 2

[8] Jāmi’ al-Ahādith ,V2 P13 Hadith 12

[9] Wasāil al-Shīa, Page 34

[10] Wasāil al-Shīa, Page 33

[11] Link to part 1