Originally published on Shiitic Studies
What follows is a translation of a small part of the notes of Sayyid ʿAlī al-Sīstānīʾs Baḥth al-Khārij (advance lessons) on Uṣūl al-Fiqh (legal theory) as transcribed by one of his students, Sayyid Hāshim al-Hāshimī, dating back to approximately forty years ago.
The discussion concerns a major topic in Uṣūl al-Fiqh, which is, the problem of Ikhtilāf al-Ḥadīth (differences between Ḥadīth). Before delving into the core of the discussion, the Sayyid includes three preliminary sections as an introduction. The first of these (which is translated below) sketches out the early history of the problem of Ikhtilāf and evaluates the degree of attention that the contemporaries of the Imams paid to it.
The Sayyid begins by dividing the promulgation of the Aḥkām (rulings) into two phases i.e. the prophetic and the later Imāmi. He traces the origins of Ikhtilāf al-Ḥadīth to the prophetic phase, because the speech of the prophet was understood differently by different companions depending on their levels of comprehension, apart from other factors such as abrogation of Ḥadīth by the prophet himself.
The solution to this Ikhtilāf was to be found in referring back to ʿAlī b. Abī Ṭālib, who was favoured by the prophet with special access to his knowledge. This was physically manifested in the document known as the Ṣaḥīfa, the existence of which is attested to by all sides. The fact that the majoritarian school gave equal credibility to all the companions out there as exponents of the prophetic Sunna while the Shīʿa had a single arbiter is considered to be a major reason for the divergence found in the corpus of the two groups.
When the successors to ʿAlī, the two Imams al-Bāqir and al-Ṣādiq began widely disseminating the Aḥkām based on this special knowledge in the beginning of the second century, their companions and students were bound to find Ikhtilāf between this and the rulings issued by other authorities in the Islamic world. Sayyid Sīstānī provides numerous textual evidences to show that the companions of the Imams were aware of this phenomenon and inquired about the causes for it. The answers given by the Imams are critical to the Sayyid’s reconstruction of the history of Ikhtilāf.
Sayyid al-Sīstānī concludes this part by setting out his rationale for not giving credence to the Aḥādīth (pl. Ḥadīth) attributed to the prophet as preserved in the Sunnī corpus in his juristic methodology (i.e. why he does not refer to them when deriving the Aḥkām).
The footnotes to the translation are limited to those found in the published Arabic version of the text unless otherwise stated. Hijrī dates of death for scholars have been included and were not present in the original. The honorifics usually applied after the names of the prophet and the Imams have been excised for the sake of readability but it is hoped that the reader will still pronounce them at the appropriate instances.
Historical Evolution of the Problem of Ikhtilāf al-Ḥadīth
What becomes apparent to any researcher is that the beginnings of an awareness about the existence of the problem of Ikhtilāf al-Ḥadīth (differences between Ḥadīth) goes all the way back to the earliest period of Islam. This is when we discover that the Ṣaḥāba (companions) and the Tābiʿīn (successors) experienced this problem and were affected by it the same way we are affected by it today.
For the Aḥādīth that the messenger conveyed to them included, at the very least, those which were Muḥkam (unambiguous) and Mutashābih (ambiguous), Nāsikh (abrogating) and Mansūkh (abrogated), and this on its part led to the manifestation of a state of differences between the Aḥādīth.
To clarify this point, we will look briefly at the two phases that the promulgation and spread of Aḥkām (rulings) went through:
(a) Prophetic Phase
The prophet elucidated the Aḥkām on two different levels:
This is when he elucidated the Aḥkām for the Ṣaḥāba as a whole who received it from him. It is represented by the general body of prophetic Aḥādīth.
This is distinguished (from the above) by being what our master the Commander of the Faithful received from the prophet of instruction and Aḥkām, since he (the prophet) used to dictate them to him in an exclusive manner.
This (fact) has come in numerous reports wherein it has been stated explicitly that the prophet used to dictate to him (ʿAlī) and he would write down.
The end-result of this (process) was his (ʿAlī’s) authorship of a number of books already in the life-time of the prophet. A fact that has been agreed-upon in the statements of both the non- Shīʿa and the Shīʿa.
Some references to these (statements) have been given in the introduction to the book Jāmiʿ Aḥādīth al-Shīʿa. It has come therein that the Imam had a number of written works, such as the Kitāb al-Diyāt (fiscal compensation) – reproduced in whole in the last part of al-Kāfī, the Ṣaḥīfa of Ali, the Kitāb al-Farāʾiḍ (inheritance shares) among other Rasāʾil (epistles).
Vol. 4 of the collected Fatāwā of Rashīd Riḍā contains a comprehensive discussion on the Ṣaḥīfa of Ali from which one can come to know the breadth of this Ṣaḥīfa and its inclusion of a lot of the Aḥkām.
Non-Shīʿa scholars have also acknowledged that Imam ʿAlī was singled out among the Ṣaḥāba in receiving from the prophet the rulings that pertain to dealing with the Bughā (rebels) and the Khawārij. This is why we find that Abā Ḥanīfa and al-Shāfiʿī base their rulings pertaining to the rebels and the Khawārij on the statements of the Imam. All this proves that the prophet used to prepare Imam Ali so that he becomes the door to his knowledge and the counterpart to the book of Allah.
The difference between these two levels of reception of rulings is obvious, for the Ṣaḥāba would (many a time) fall short in understanding the Aḥādīth of the prophet and in paying due attention to his speech. It was therefore incumbent on them to refer back to the one who could interpret it for them so as to obtain a correct understanding of it. Such a one was none other than Imam ʿAlī but they did not do that.
This multi-level reception of rulings should be considered to be among the primary causes for the differences between the Aḥādīth of the two groups, that is, the Shīʿa and Ahl al-Sunna, which in turn led them to differ in Fiqh (substantive law).
Because the source for Shīʿī Fiqh is the Ṣuḥuf (pl. Ṣaḥīfa) of the Commander of the Faithful which he wrote in his hand following the dictation of the messenger of Allah together with the Aḥādīth of the Ahl al-Bayt. While the source for Sunnī Fiqh is the Aḥādīth which the companions received from the prophet with what is in them of defective aspects as a result of different factors.
These last include: The prohibition against them writing down the Aḥādīth of the prophet; a limited ability on their part to comprehend the speech of the prophet; their near-total abandonment of the Ṣuḥuf and works of the Ahl al-Bayt in the context of legislation – which contained knowledge of the Nāsikh among the Ḥadīth and its Mansūkh, its Muḥkam and Mutashābih, its ʿĀmm (general) and Khāṣṣ (specific); together with them lacking the scholarly tools by means of which they could come to know how to resolve the differences in the Aḥādīth of the prophet.
Thus, the non-Shīʿa faced the problem of Ikhtilāf in the Aḥādīth that they received from the prophet and from the very beginning of Islam. Because in them (i.e. the Aḥādīth) there were the Nāsikh and Mansūkh, the ʿĀmm and Khāṣṣ, the Muḥkam and Mutashābih. At the same time they did not possess the intellectual capacity to resolve it, because they did not hold on to the guidance of the Commander of the Faithful nor did they rely upon the Aḥādīth of the Ahl al-Bayt. In addition to several factors that compelled them to avoid bringing the problem to light or attempting to solve it.
The existence of this intractable problem and other political and doctrinal factors – we have alluded to them in the preamble to our discussion on the Ḥujjiyya (authoritativeness) of the Khabar al-Wāḥid (solitary report), in the section on the history of Tadwīn al-Ḥadīth (writing down of Ḥadīth) – drove them to respond the problem with a negative response instead of a positive one, that is, by introducing a categorical prohibition on the writing down of Ḥadīth, and they ordered that the books of Hadith be burnt, instead of making use of correct methods and solutions to resolve it. Some contemporary works have referred to this matter and discussed it. See the Aḍwāʾ ʿalā al-Sunna al-Muḥammadiyya.
Needless to say, this response did not solve the problem, rather it compounded it further with the passage of time, since it opened up the door for fabricators to intensify their efforts, taking advantage of what the prevailing circumstances entailed, resulting from a reliance on mere memory (recall) (to preserve Aḥādīth) over this long period, thus certain individuals with ulterior motives managed to coin Aḥādīth and insert them amongst the Aḥādīth of the prophet to achieve their objectives, or, because of the occurrence of mistakes in transmission and forgetfulness, or, the addition and reduction in quotation of the texts of the Aḥādīth and their like.
They were eventually compelled in the beginning of the second century to record the Ḥadīth in writing (after the former prohibition). Of course, serious work in regards writing down of Ḥadīth only began about the middle of that century, so for instance Mālik (d. 179) authored his Muwaṭṭaʾ, but he did not follow in his authorship a scholarly approach, rather he included in it all that which he was partial towards from the reports of the Medinans, and he included only a small number of Aḥādīth in his book, turning away from the reports of the Iraqis to which the Fiqh of Abī Ḥanīfa was committed. This is because the followers of every school at the time, such as the Iraqis and the Medinans, were biased towards their own reports and would consider the reports of schools other than their own to be weak.
In summary, they did not apply an effective approach to resolve the Ikhtilāf between Ḥadīth. At the same time, the Fatāwā (verdicts) of the Four jurists were already considered sancrosant within Sunnī jurisprudence even before the writing down of Ḥadīth, and so the presence of Ikhtilāf al-Ḥadīth did not have any impact after the Ḥadīth were written down (i.e. did not cause a re-evaluation of the Fiqhi positions).
(b) Imāmi Phase
This is the era of the spread of Aḥādīth and Aḥkām as issued by the two Imams al-Bāqir and al-Ṣādiq in the beginning of the second century. This historical period was especially favourable for them to spread the Aḥkām, for it was in this period that the Umayyad rule had begun to wane and the Abbasid rule was still in its infancy and had not yet stabilized. They (the two Imams) were consequently able to promulgate the Aḥkām under the shadow of these circumstances.
(It is because of this that) Ibn ʿUqda (d. 332) was able to enumerate four thousand students of Imam al-Ṣādiq. Ibn ʿUqda’s count became the basis for Shaykh al-Ṭūsī (d. 460) when he listed the companions of al-Ṣādiq in his Rijāl work. Ibn Nuh (fl. 408) added the names of a large number of them (even beyond what Ibn ʿUqda had provided).
These companions who received Aḥādīth from the Imams became aware of the presence of two kinds of Ikhtilāf in them:
(i) Ikhtilāf between what they used to hear from the Ṣādiqayn (i.e. al-Bāqir and al-Ṣādiq) and the Aḥādīth that were circulating among the Ahl al-Sunna. So a Kufan narrator, for example, would notice differences between their Aḥādīth (i.e. those of the two Imams) and the reports popular among the Kufans. The same would apply with the Hijazis.
It is due to this that there arose the problem of contradiction between the Aḥādīth of the Ṣādiqayn on the one hand and the Fatāwā of the non- Shīʿa on the other.
(ii) Ikhtilāf which they observed in the Aḥādīth and Fatāwā issued from the Imams themselves. So they inquired first, about the causes for this difference, and second, about the way to solve it, as can be seen in the Maqbūla (accepted report) of Ibn Ḥanẓala, and third, their concern about this (phenomenon) can be seen in them presenting two contradictory reports to the Imam and asking him to resolve it, for example, in the contradictory reports that have come about the Ṭahāra (ritual purity) of wine and its Najāsa (ritual impurity).
In summary, the narrators faced both kinds of Ikhtilāf between Aḥādīth, and there are numerous evidences (that can be adduced) for (demonstrating) them both, indeed the narrators are known to have presented both kinds to the two Imams (for resolution).
Evidence for the first kind: The difference in methodological foundations between the Imams and the majoritarian school was well-known from the outset.
The Commander of the Faithful was already questioned about this Ikhtilāf from before as has come in Jāmiʿ Aḥādīth al-Shīʿa quoting various books such as al-Kāfī, the Ghayba of al- Nuʿmānī, Nahj al-Balāgha and others, on the authority of Sulaym b. Qays al-Hilālī who said:
I said to the Commander of the Faithful: I heard from Salmān, Miqdād and Abī Dharr things to do with the Tafsīr (commentary) of the Qurʾān and Aḥādīth of the prophet which are different from that which is in the hands of the people, then I heard from you a confirmation of what I had heard from them.
I also found in the hands of the people a lot of things to do with the Tafsīr of the Qurʾān and the Aḥādīth of the prophet of Allah which you oppose them in and assert all that to be false.
Do you believe that the people are lying about the messenger of Allah deliberately and are commenting on the Qur’an by their personal opinions?
He (Sulaym) said: So he (i.e. ʿAlī) turned towards me and said: You have asked so understand the answer. What is in the hands of the people includes both truth and falsehood, veracity and lies, abrogating and abrogated, general and specific, unambiguous and ambiguous, correctly preserved (memorized) and mistaken.
Lies were attributed to the messenger of Allah in his own life-time, until he stood to give a speech and said ‘O people! Liars about me have increased, so the one who lies about me deliberately should occupy his seat in the fire’. Then lies were said about him after him (i.e. his death).
Verily the Ḥadīth has come to you from four (types of people) – there is no fifth:
A hypocritical man, who makes a show of faith and acts out Islam. He does not restrain himself nor find it burdensome to lie about the messenger of Allah deliberately. So if the people knew that he was a lying hypocrite they would not accept from him, nor would they consider him truthful, but they said instead ‘this one was a companion of the messenger of Allah, he saw him and heard from him’ so they took from him without knowing his (true) condition.
Allah had informed him (i.e. the prophet) of the hypocrites with what he informed, and described them with what he described – so He Mighty and Majestic said “and if you see them their outward form impresses you, and if they speak you listen to their speech”.
These remained after him (i.e. the prophet’s death) and drew near to the Imams (leaders) of misguidance and callers to the Fire by their falsities, lies and slander. So they (the leaders) appointed them to be governors over provinces, imposed them over people’s necks, and consumed through them the world. Indeed the people are with their kings and (with) the world, except one whom Allah has protected. So this is one of the four.
(The second is) A man who heard something from the messenger of Allah, but he did not bear (memorize) it in an accurate form, and made a mistake in it, though he did not intend to lie. It is in his hands, he believes in it, acts upon it, and transmits it saying ‘I heard it from the messenger of Allah’, but if the Muslims knew that he was mistaken they would not have accepted it, and if he himself knew that he was mistaken he would have rejected it.
A third man heard something ordered by the messenger of Allah and then he (the messenger) forbade it while he (the man) did not know, or he (the man) heard him (the messenger) forbidding something then he (the messenger) permitted it (later) while he (the man) does not know, so he (the man) preserved the abrogated and did not preserve the abrogating. If he knew that it is abrogated he would have rejected it, and if the Muslims knew that is is abrogated when they heard it from him they would have rejected it.
The last and fourth one is he who does not lie about the messenger of Allah. He detests lying out of fear of Allah and in reverence of the messenger of Allah. He did not forget it (the Ḥadīth) rather he memorized what he heard in its original form, so he came with it as he had heard it, and did not add anything to it nor reduce from it. He can tell the abrogating among it from the abrogated. Because the commands of the prophet are like those of the Qurʾān, (they include) the abrogating and abrogated, specific and general, unambiguous and ambiguous.
There used to issue from the messenger of Allah speech which has more than one interpretation, a general speech and a particular speech, just like the Qurʾān. Allah Mighty and Majestic said in His book “and whatever the Messenger gives you then take it, and whatever he forbids you from then leave it” but it becomes confused for one who does not know and does not comprehend what Allah and his messenger meant by it.
Not every companion of the messenger of Allah was someone who could ask him about something and go on to understand (the reply). There was (also) among them one who would ask him and not inquire further, to the extent that they would desire that a bedouin or visitor would come and ask the messenger of Allah so that they could hear (the reply). While I (on the other hand) would enter upon the messenger of Allah every day for a private session and every night for a private session.
It should be noted that this report is not a mere narrative account, rather it reflects the historical reality of the Ṣaḥāba at that time, and the manner in which they received Aḥādīth from the prophet.
And in the same source (i.e. Jāmiʿ Aḥādīth al-Shīʿa) via a reliable chain to Manṣūr b. Ḥāzim who said:
I said to Abī ʿAbdillāh: What is with me – I ask you about a matter so you answer me in it with a certain answer, then someone other than me comes to you so you answer him in it with a different answer? He said: We answer the people with addition (in-detail) and (at other times) with deletion (in-brief).
I said: Then inform me about the companions of the messenger of Allah – were they truthful about Muhammad or did they lie? He said: They were truthful. I said: So what was with them that they differed? He said: Don’t you know that a man used to come to the messenger of Allah and ask him about a matter so he answers him in it with an answer, then he answers him after that with that which abrogates the former answer, so the Aḥādīth abrogated one another.
This report does not mean that all the Ṣaḥāba were truthful, rather it intends to highlight one aspect among the (many) aspects leading to Ikhtilāf, which is, not being able to tell the Nāsikh from the Mansūkh.
Also in Jāmiʿ Aḥādīth al-Shīʿa, in the reliable report of Muḥammad b. Muslim from Abī ʿAbdillāh:
He (Muḥammad b. Muslim) said: I said to him: What is with groups who narrate from so-and-so and so-and-so from the messenger of Allah, they (i.e. the narrators) are not suspect of lying, but there comes from you opposite to it?
He said: The Ḥadīth is abrogated the way the Qurʾān is abrogated.
The aim of recounting these reports is (to demonstrate) that the narrators (i.e. companions of the Imams) used to present the Ikhtilāf between their Aḥādīth and the Aḥādīth of others to the Imams.
And in the report of al-Maythamī which will be given in full at a later point:
Aḥmad b. al-Ḥusayn (sic. al-Ḥasan) al-Maythamī narrated to me that al-Riḍā was asked one day – and a group of our companions had gathered around him and were arguing about two contradictory Ḥadīth attributed to the messenger of Allah concerning one thing …
So the Imam clarified for him the reason behind that.
The Imams were alluding by all this (to the fact) that the Ṣaḥāba were not fully comprehending the speech of the prophet. Their (i.e. the Imams) motivation for doing so was to quell the doubts arising from what they (themselves) narrated (which could sometimes contradict a Ṣaḥābī’s report).
In the Muqaddima of Ibn Khaldūn quoting al-Zuhrī – who was one of the leading scholars of Ḥadīth among the proto-Sunnīs in the beginning of the second century:
It has defied the jurists and proven incapable for them to know the Nāsikh in the Ḥadīth of the messenger of Allah from the Mansūkh
In Jāmiʿ Aḥādīth al-Shīʿa, in the reliable report of Zurāra from Abī Jaʿfar. He (Zurāra) said:
I heard him (i.e. al-Bāqir) saying: ʿUmar b. al-Khaṭṭāb gathered the companions of the prophet including ʿAlī and said: What do you say about the Masḥ ʿalā l-Khuffayn (wiping over the leather-shoes)?
So al-Mughīra b. Shuʿba stood up and said: I saw the messenger of Allah wiping over his shoes.
WhereuponʿAlī said: The Book (i.e. the Qurʾān) has surpassed (wiping over) the shoes. Verily al-Māʾida (chapter which contains the verse of ablution) was revealed two or three months before he (i.e. the prophet) was taken (i.e. died).
In conclusion, the Imams explained the reasons for this kind of Ikhtilāf between our Aḥādīth and the Aḥādīth of the Ahl al-Sunna. And we do not have scope to discuss this kind further, because we – by virtue of (possessing) the Aḥādīth of the Ahl al-Bayt – do not face the problem of Ikhtilāf in the Aḥādīth attributed to the messenger.
This is because we postulate the Ḥujjiyya (authoritativeness) of (only) that report which is Mawthūq (trustworthy), and when we discussed the Ḥujjiyya of the Khabar al-Wāḥid (solitary report) we mentioned several aspects which leads one not to attain Wuthūq (trust) in the Aḥādīth quoted in the books of the Ahl al-Sunna.
Such as the historical delay in the writing down of their Aḥādīth, with the Aḥādīth having reached them by means of mere memorization not writing. For that which is reliant on memory is prone to being affected by addition and reduction in most cases. Now these Aḥādīth were transmitted for a duration of about 150 years by way of oral relay and memorization alone. (This) together with the presence of numerous other causes which led to the occurrence of change and corruption, in addition to personal, societal and political factors, all of which have their own impact in this regard.
We have mentioned all that in detail in our discussion on the Ḥujjiyya of Khabar al-Wāḥid in the section on the history of Tadwīn al-Ḥadīth. It is because of all this we concluded that Wuthūq and Iṭmiʾnān (confidence) cannot be attained by the Aḥādīth of the non- Shīʿa.
 Sayyid ʿAlī al-Ḥusaynī al-Sīstānī, Taʿāruḍ al-Adilla wa Ikhtilāf al-Ḥadīth, Transcribed by Sayyid Hāshim al-Hāshimī (Qum: Intishārāt Ismāʿīliyyān, 1440), Vol. 1, Pgs. 186–196
 There have come reports and statements from both groups concerning the Ṣaḥīfa of Imam ʿAlī and that he wrote it under dictation from the messenger. As for those that have come by way of Ahl al-Bayt then the reports are many, as has been quoted in Jāmiʿ Aḥādīth al-Shīʿa: Vol. 1 Pg. 33. Among these is one on the authority of Imam al- Ṣādiq who said: “By Allah we do have the Ṣaḥīfa, in it is all that which the people require, even the indemnity (compensation) for a scratch, it is the dictation of the messenger of Allah and the script of ʿAlī in his hand”. It has also been called the Jāmiʿa (‘the comprehensive book’). It is evident that the Ṣaḥīfa of the Imam was well known to some of the Ahl al-Sunna as it has been referred to in the Ṣaḥīh collections such as Ṣaḥīh al- Bukhārī: Vol. 1, Pg. 36; Vol. 2, Pg. 221; Vol. 4, Pg. 89; Vol. 8, Pg. 144. See also Ṣaḥīh Muslim: Vol. 4, Pg. 115. The Ṣaḥīh collections and other works have alluded to the presence of written works by the Imam under dictation of the messenger to him, as is found also in Musnad Aḥmad: Vol. 1, Pg. 81; Ṣaḥīh Muslim: Vol. 4, Pg. 85 and al-Bayhaqī in his al-Sunan al-Kubrā: Vol. 8, Pg. 16 quoting al-Shāfiʿī. It is further corroborated by what has been narrated in the Ṭabaqāt of Ibn Saʿd in the entry of the Imam: Vol. 2, Pg. 101: “It was said to ʿAlī – ‘how is it that you are the most numerous of the companions of the messenger in (narrating) Ḥadīth?’ He said: I was someone who if I ask him he informs me, and if I remain silent he initiates me”. More about the Ṣaḥīfa is found the book Aḍwāʾ ʿalā al-Sunna al-Muḥammadiyya: Pg. 94
 Badāʾiʿ al-Ṣanāʾiʿ: Vol. 7. Pg. 149
 Aḍwāʾ ʿalā al-Sunna al-Muḥammadiyya: Pg. 58
 It will be given in Vol. 2, Pg. 21
 al-Wasāʾil: Vol. 3, Pg. 468, Ḥadīth No. 2 (38th chapter among the chapters on Najāsāt)
 Sūrat al-Munāfiqūn: Vs. 4
 Sūrat al-Ḥashr: Vs. 7
 al-Kāfī: Vol. 1, Pg. 50, Ḥadīth No. 1; Jāmiʿ Aḥādīth al-Shīʿa:Vol. 1, Pg. 196, Ḥadīth No. 173
 al-Kāfī: Vol. 1, Pg. 52, Ḥadīth No. 3; Jāmiʿ Aḥādīth al-Shīʿa:Vol. 1, Pg. 324, Ḥadīth No. 485
 al-Kāfī: Vol. 1, Pg. 52, Ḥadīth No. 2; Jāmiʿ Aḥādīth al-Shīʿa:Vol. 1, Pg. 323, Ḥadīth No. 483
 ʿUyūn Akhbār al-Riḍā: Vol. 2, Pg. 20; Jāmiʿ Aḥādīth al-Shīʿa:Vol. 1, Pg. 315, Ḥadīth No. 468
 Muqaddima Ibn Khaldūn: Pg. 440
 Jāmiʿ Aḥādīth al-Shīʿa: Vol. 2, Pg. 387, Ḥadīth No. 2286
 Translator’s note: The Sayyid explains that his personal methodology is to extend Ḥujjiyya (authoritativeness) to those reports that give him Wuthūq (trust) as to their authenticity, as opposed to limiting this to the reports narrated by the Thiqa (trustworthy individuals), who are many across all sectarian groupings, including narrators who belong to the Ahl al-Sunna. The reason, then, for not resorting to the Sunnī Ḥadīth corpus despite there being Thiqa narrators among them is that he has not acquired Wuthūq in their general body of Ḥadīth. This is mainly because unlike the Shīʿa Ḥadīth corpus the former underwent a long period of merely oral transmission with all the pitfalls prevalent to this mode of transmission