The last few weeks, Ustad Soroush Mahallati was briefly covering the qā‘idah al-ilzām (QI) and summarized the evidence for and against it in around thirty sessions. The lessons also covered the views of Sayyid Sīstānī who does not accept this principle and instead offers an alternative theory called al-maqāṣa al-naw‘īyyah and critical observations were also made on his arguments based on the published transcripts.

QI is a very crucial principle as it seeks to explain the relationship or conduct of a Shī‘a with non-Shī‘a or even non-Muslims. There are many laws followed by members of other sects or religions that are carried out in the same way as Shī‘ī jurisprudence dictates. For example, the way rental contracts are done by the Ahl al-Sunnah is not very different to the way the Shī‘a do it. However, at times there are matters where there are different rulings and practices, such as in matters of marriage, divorce, inheritance etc.

Consider a marriage has taken place in accordance to Shī‘ī law, but according to a Sunni, that marriage contract may be invalid as it did not have two witnesses present. However, what if two Sunnis married, but they did so without any witnesses, what should be the Shī‘ī position regarding their marriage? Technically a marriage without witnesses is valid in accordance with Shī‘ī law, but invalid according to Sunni law. If this marriage is invalid, then they are engaging in a sin as the contract was invalid, but if it is legitimate then the woman cannot marry another person. The position of the Sunnis on such a marriage is clear, it is as if it never existed, but what is our opinion on it?

This is where the principle of al-ilzām is relevant. It will tell us the responsibility of the Shī‘a when dealing with such situations. Can a Shī‘a man propose to that woman for marriage or not? QI will say we must treat it as an invalid marriage, based on the principle mentioned in a narration:

ألزموهم بما الزموا أنفسهم

Compel them with that which they compel upon themselves.¹

Some more examples can be given: Sunnis believe divorce can take place without any witnesses, so if a Sunni does do that, what is the responsibility of a Shī‘a with respects to this act of theirs, as according to Shī‘ī law divorce requires witnesses? QI will say treat the divorce as valid, because according to their law the divorce was valid and a Shī‘a man can later marry that woman.

Or for example, according to some attributions, Abū Ḥanīfah considered forced divorced to be valid, while we consider it invalid. If a person ascribes to Ḥanafī law and divorces his wife due to force and pressure, the principle of al-ilzām will tell us to treat it as valid divorce.

Or in the case of cancellation policies of a transaction, according to Shafī‘ī jurists, if a person buys an item without having seen it with the eyes, but only based on a description, and later when they see the item the description matched the physical item, such a person still has the right to cancel the transaction and return the item. However, according to Shī‘ī law, such a person has no right to cancel the transaction. Imagine if a Shī‘a buys a carpet based on its description only, from a Sunni in the Kurdish regions of Iran where we have many Shafī‘īs, and then later comes and see that the description was valid, can the Shi‘a cancel this transaction or not? According to QI, the Shī‘a will be able to cancel this as the seller was a Shafī’ī whose law dictates that the buyer could cancel this transaction even if the description matched the actual item.

There are literally dozens of examples where QI can play a role if one were to accept it, and the aforementioned examples were merely those that concerned Shi’a and Sunni relationships. In actuality, the same discussion could apply to Muslim and non-Muslim relationships as well, even if the non-Muslims are not Ahl al-Kitab.

Precedence of the Principle

The principle has been mentioned in some narrations and there are some allusions to it post Shaykh Ṭūsī, but an actual independent discussion on it is a very recent one, particularly from the last century. This principle is not a principle that can be spoken of in historical terms as the extensive discussions on it are relatively recent. In the past, our classical scholars would just rely on few traditions that were cited during the course of these 30 lessons, and even in those traditions not all the scholars accepted it. It was really after al-Shahīd al-Thānī that the principle was first mentioned, and Ṣāḥib al-Jawāhir really expounds on it and utilizes it extensively.

Ultimately, it was only in the 20^th century and in the 21^st century that this principle was really opened, and independent treatises were written. Shaykh Jawād Balāghī (d. 1933) has written a treatise on it around a century ago. Shaykh Mīrzā Fattāḥ Shahīdī (d. 1953) of Tabriz who has a commentary on al-Makāṣib has written a treatise on it called Risālah Tahdhīb al-Aḥkām fī Qā‘ida al-Ilzām. After him, Ayatullah Sayyid Muḥammad Ḥasan Bujnurdī (d. 1975) volume 3 of al-Qawā‘id al-Fiqhīyyah has discussed it. Ayatullah Shaykh Ḥusayn Ḥillī (d. 1974) also has an independent treatise on it, transcribed by the martyred Shaykh Baḥr al-‘Ulūm. The first jurist who has mentioned the principle in his Minhāj al-Ṣāliḥīn was Ayatullah Sayyid Khū’ī and has discussed some of its details. Unfortunately, later jurists and even his students removed this introduction from their works, such as Ayatullah Waḥīd Khurāsānī and Ayatullah Isḥāq Fayyāḍ.

Another scholar is Abd al-A‘la Sabzwari (d. 1993) in his al-Muhahdhab² also believes in this is a principle accepted by all people. Allamah Muhammad Taqi Ja’fari (d. 1998) in his discussion on the principle of La Darar also gives an example of a jurisprudential maxim and says QI is one of those and says it is aa principle adopted by the commoners (‘uqalā’). Some contemporary scholars have also discussed it such as Ayatullah Sīstānī, although he does not end up accepting the principle of al-ilzām and presents an alternative principle.

While dozens of narrations were covered and investigated, for the sake of brevity, I will just mention one of those narrations and a brief discussion surrounding it.

وَ بِإِسْنَادِهِ عَنْ أَحْمَدَ بْنِ مُحَمَّدٍ عَنْ مُحَمَّدِ بْنِ يَحْيَى عَنْ غِيَاثِ بْنِ إِبْرَاهِيمَ عَنْ جَعْفَرٍ عَنْ أَبِيهِ ع فِي حَدِيثٍ‏ أَنَّ عَلِيّاً ع ضَمَّنَ رَجُلًا أَصَابَ خِنْزِيراً لِنَصْرَانِيٍّ.

‘Alī (a) deemed a man financially liable who had killed a swing belonging to a Christian.

Although scholars like Muḥaqqiq Ḥillī, Ṣāḥib al-Madārik, Ṣāḥib Kashf al-Lithām, Sayyid Zanjānī and Sayyid Sīstānī believe non-Muslims can truly have ownership over swine and alcohol, a vast majority of Shī‘ī jurists believe alcohol and swine have no monetary value, and there cannot be owned.

If we go with the view of the majority, then why did Imam ‘Alī (a) in the above narration consider that Muslim person financially liable to pay for a Christian’s swine he had killed, since in reality – which is God’s law – the swine cannot be owned to begin with and the Christian’s ownership of it is meaningless? Ṣāḥib al-Jawāhir³ says this narration does not imply swine has ownership value, not even for a Muslim due to the principle of al-ishtriāk, rather this narration just gives us an apparent law (al-ḥukm al-ẓāhirī). It does not tell us the non-Muslims are correct, or that there is true ownership of a swine, or that their transactions and ownership are meaningful and valid.

He cites three reasons for why this and other similar narrations are proving QI instead:

1) Non-Muslims are responsible for fulfilling the rulings of Islam.

2) Swine, alcohol and their likes have no financial value and cannot be owned. This is a particular ruling in Islam for which both Muslims and non-Muslims are responsible for.

3) The religion of non-Muslims has been abrogated.

If these three premises are true, then their ownership over swine and alcohol is invalid, yet these narrations seem to be deeming them real owners of these items and Imam ‘Alī (a) is even deeming a person financially liable for killing a pig that belonged to a Christian. How do we reconcile between the three premises and the narration? According to Ṣāḥib al-Jawāhir, we do this through QI.

However, the issue with this argument is that though the first premise is a principle, it is not a rational or philosophical principle that cannot be restricted. It is possible for the principle to be restricted and certain exceptions can be made. Further, with respects to the third premise we would need to see what the actual ruling of non-Muslims is on this matter, since perhaps even in their own religion they cannot own swine and alcohol.

Sayyid Zanjānī in his Kitāb al-Nikāḥ⁴ has also discussed this argument of Ṣāḥib al-Jawāhir and has critiqued him by saying the notion that non-Muslims cannot be true owners of alcohol and swine is invalid, rather this ruling is just for the Muslims. In fact, even if we were to accept that they are obliged to follow the rulings of Islam which makes it prohibited to engage in transaction with swine and alcohol, it is still possible to understand some of these narrations as speaking of them engaging in a prohibited act, yet the contracts and ownership are still valid. To give a basic example, this is similar to if the Islamic law said it is prohibited to engage in buying and selling during the time of Friday prayers, and yet someone goes and buys a merchandise during that time, they have committed a sin, but that does not invalidate the transaction itself and they are still owners of that merchandise.

A Non-Ritualistic Tangent to Qa‘idah al-Ilzām

What I wanted to share in this article was the last tangent explored by Ustad Mahallati. One of the questions we could ask is whether this principle is 1) ta‘abbudī (submissive-ritualistic) / ta’sīsī (established by the religion) or 2) ‘uqalayī (common non-ritualistic practice) / imḍā’yī (signed-off by the religion). All of our major scholars have treated the discussion on the principle from the first category and have stuck to the religious texts on this matter to define and determine the limits of this principle. However, if someone considers this to be from the second category, then the first point to determine would be to see what the ‘uqalā’ say about this practice, and only subsequent to that must we investigate the texts.

Ustad Mahallati believes an ‘uqalayī principle can be established for QI and many of the narrations on the subject are to be used as corroborative evidence. I will summarize some of his points briefly, because the arguments and extent of the principle will differ if you accept this. The discussion can be presented as follows:

Do people of different religions, nations, cultures, all follow one law? The answer to this is clearly no. In case of marriage, different people conduct marriages in different ways and forms, and likewise when it comes to divorce, inheritance and even some forms of transactions etc.

QI answers how we should behave and deal with these differences. Do we accept these differences as a reality or not? In the discussions held over 30 days, we constantly observed how scholars tried to reconcile some of the narrations that apparently legitimized the actions of non-Shī‘a with the principle of al-ishtirāk which assumes all humans are obliged to follow the one true law. According to the principle of al-ishtirāk we should have been considering the acts of other invalid and illegitimate, and only those acts of their which are the same as ours are to be valid. For more information on the principle of al-ishtirāk, you can read my masters thesis here, pgs. 12 to 18 where I discussed it in some length and tried to offer some humble critiques on it.

However, another response would be to say that law and order amongst people around the world is accepted, even if it does not match the Shari‘ah completely, and this reality is accepted in this world of variety and differences. We accept their interactions as valid, because if we consider their interactions invalid, are we suggesting to replace their laws with ours? If the answer is yes, then how do we expect to do that and what is the method for it? Some may say it should be done by force, but is it realistically possible to enforce law on a global level on the entire human population? Even if such a thing was possible, what are you to do in the waiting period until you get to that state?

We argue such a thing is not even realistically possible, especially not today. So, we ask here, what do the commoners of the world, of all different backgrounds, ethnicities, languages, cultures, do when they observe the interactions and conduct of others who abide by another set of conventions and laws? What we observe is that people of different religions and cultures seem to accept the legitimacy and validity of practices and interactions of others. For examples, those who live in Europe accept the marriage union of a couple from Africa, while the Africans accept the marriage union and transactions of those living in South Asia and so on.

Note the difference: the commoners do not say the form in which others practice something is the ideal and correct way of doing things. In other words, South Asians or Europeans do not say nor believe that the way Africans get married is the correct way, neither do the Africans believe the way South Asians or Europeans get married or divorced is the correct way to do so, nor do the Africans believe the way Europeans or South Asians get married is the correct way of getting married. Each group has their own conventions and laws and they believe that to be the truth and this is in accordance with the principle of al-ishtirāk as well. However, what the commoners do say is that regardless of their acts not being in accordance with reality, the consequences of those acts are still valid and legitimate as their followers believe. So even though South Asians may say the way Africans get married is wrong, they still consider the union formed by their marriage to be valid and treat the couple as husband and wife, and any children born out of that relationship are not considered illegitimate.

If we believe that this is what the commoners do, then we can use the narrations that are cited for QI as corroborative evidence and say they are simply reiterating what commoners already do in the realm of practice and conduct. Meaning, people do not consider the interactions and conventions of other valid or true, but they will still accept their consequences. This way, we can also reconcile between the principle of al-ishtirāk and QI.

A vast majority of our great scholars do not believe the practice of the commoners is binding on its own and inherently, rather it is only binding if there is no deterrence (rad’) for it by the Prophet (p) or his Ahl al-Bayt (a). However, Ustad Mahallati disagreed with them and said the practice of the commoners is not capable of being deterred, rather it is binding in and of itself. What can be rejected by religion are practices of customs or what we refer to as the ‘urf, which is different to the practice of the commoners. Customs are determined by city, religion, language, culture, etc. but the practice of the commoners are human principles that are universal and necessary. They cannot be rejected as they will cause chaos in society.

For example, the Quran says [5:1] O believers! Honour your contracts. Many scholars believe this is a principle adopted by the commoners and they consider it necessary to fulfill their contracts. In this case there is no reason to ask if the religion has rejected this practice or not. Or consider the principle of an ignorant person referring to a person of knowledge (rujū‘ al-jāhil ila al-‘ālim) which is accepted by every Uṣulī scholar and they consider it to be a practice of the commoners. How can the religion reject this practice, is it even possible? What would be the alternative for it? Abandoning such a practice will result in chaos in society.

Thus, Ustad Mahallati does not believe the practice of the commoners is even capable of being rejected and deterred. He has discussed this extensively in his discussions on legal theory and he acknowledges this as a fundamental difference between himself and other jurists. Although this opinion is also very similar to what ‘Allāmah Ṭabātabā’ī argues in his marginal notes on al-Kifāyah, and there are some other contemporary jurists who also accept this today. They do not believe these practices require a signing off or an absence of deterrence for them to be binding. Even if signing off was required, in the case of QI, the narrations preserved in our books would serve as that signing off.

If we accept this, a very serious issue can be resolved and that was, many narrations on the topic of al-ilzām were on specific topics such as inheritance, divorce, marriage etc. If we take this principle to be a submissive matter, then it would be very difficult to universalize it as we cannot negate the special relevance (ilghā al-khuṣūṣīyyah) of those specific matters.

Even the famous narration ‘Compel them with that which they compel upon themselves’ was related to the topic of divorce and it was very difficult to universalize it. On top of that, there were many conflicts and contradictions in the narrations themselves and we saw how difficult it was to treat and reconcile them when a pure submissive approach was taken to them. However, if we take those narrations as signing off on a matter that commoners already do, then all of those narrations become corroborative evidence, as they are simply approving what humans already do.

This is the QI accepted by Ustad Mahallati, where interactions and conventions of others, despite being wrong and not in accordance with reality, have consequences that can be accepted, or else there will be social chaos.

1. al-Tahdhīb, vol. 9, pg. 322; al-Istibṣār, vol. 4, pg. 148.
2. Vol. 26, pg. 38
3. Al-Jawāhir, vol. 31, pg. 9
4. Vol. 21, pg. 6887