CHAPTER 9

SHĪ'A LAW

The alleged origins of Shīʿa literature in the Umaiyad period, and in particular the works on religious law ascribed to the Shiite imam Jaʿfar Ṣādiq, are apocryphal. In the second century A.H., the imam Mūsā Kāẓim and his brother ʿAlī b. Jaʿfar are credited with fetwās and a book on lawful and unlawful things (Kitāb fīl-Ḥalāl wal-Ḥarām), respectively, but their authenticity is doubtful. A work on law attributed to the slightly later imam ʿAlī Riḍā is certainly spurious and recognized as such by Shiite scholars themselves. The authentic legal literature of the "Twelver" (Ithnā ʿAsharīya) Shiites starts only towards the end of the third century A.H., that of the Ismāʿīlī branch even later.¹

The Zaidī Shiites have a work which, if it were genuine, would be the earliest work on Muḥammadan law in existence; it is the Majmūʿ attributed to their imam Zaid b. ʿAlī. But Bergsträsser has shown that it derives its doctrines from the Ḥanafīs and other schools of law.¹ It presupposes the teaching of Shāfiʿī in a statement on legal theory (§ 679), where the "words of the Prophet" are identified with sunna, and ijtihād with the use of analogy. The authentic literature of the Zaidis starts only in the third century A.H.²

In its final form, from the third century A.H. onwards, Shiite law is distinguished from that of the Sunni schools by a limited number of differences, features which in themselves were not necessarily either Shiite or Sunni, but which became adventitiously distinctive for Shiite as against Sunni law. The discussion of some of these distinctive features will show that they gained their importance only in the second century A.H., and even towards its end had not yet become irrevocably fixed as Shiite as opposed to Sunni. The Iraqian traditions from ʿAlī show no bias in favour of Shiite legal doctrines,³ and an Umaiyad⁴