2. THE SHII FIQH

At this point a brief mention must be made of a different development, the emergence of the Shii Fiqh, which has a particular relevance to the case of Iran. At the time of the Prophet's death the fact that Ali was not chosen as his successor by the selecting council of the Companions displeased him and his admirers (shias), and Shiism was born.

Originally the conflict between the Shia minority and the Sunni majority centred on the constitutional question of the nature of sovereignty and political legitimacy. In opposition to the orthodox doctrine of the caliphate, which considered public consensus as the basis of sovereignty and legitimacy, the Shias maintained a most conservative view. According to this doctrine, known as the theory of imamate (the office, rule or rank of an imam), (1) Ali and his descendants were divinely ordained and the sole legitimate successors to the Prophet; (2) it was this fact and not the community consensus which determined political legitimacy; thus (3) not only the Umayyas but also the first three caliphs of the Prophet ruled unlawfully; and finally, (4) as a representative of God on Earth, an imam will always be present to reveal His Will and to uphold His Command.

Although developed as a political weapon, this doctrine obviously had tremendous judicial implications. Given the central feature of this scheme – the continuing presence of an imam who spoke with the supreme authority of a divine law-giver – it is obvious that in Shia jurisprudence there could be no place for human reasoning.

But the theory posed some problems. First, the reason for the orthodox schools’ use of ijmaa and qiyas as supplementary sources of law was the fact that the problems of the new empire could not simply be solved by literal adherence to the Quran and Sunna. The ijmaa and qiyas were in fact “judicial devices” by which the scholars could bridge the gap between the simple community of the Madinah and the vastly complex conquered world. This problem the Shia jurists solved at least in part, by citing a vast number of Hadiths from their imams in the same way they and the orthodox Sunnis did for the Prophet.

But there was another problem: the presumed disappearance of the last (twelfth) imam at the end of the ninth century and hence the interruption of the Tradition. This problem was also taken care of by a final addition to the scheme: in the absence of the imam – here called imam-e mostaqarr (established imam) – the affairs of the faithful must be managed by the qualified theologians, the mojtahids, called imam-e mostowdaa (entrusted imam), who had all the prerogatives of the “Hidden Imam;” as the spokesmen of the imam and hence God, the mojtahids have, the theory goes, the final say on all matters of the community, including of course, ijtehad, whose doors could never be closed.

Given the nature of sources used and, especially, the political perspective followed, it was natural that the Jaafari scholars varied considerably in their specific conclusions from the orthodox schools. But important as these differences might have been from the point of view of reflecting the true teachings of Islam, they are of little significance from the perspective of sociology of knowledge. Considered from this point of view, the Jaafari school was the continuation of the same trend which characterized the orthodox Sunni schools. Notwithstanding the claims of the Shii writers to the contrary, the authentic legal literature of the Shiis, especially that of the Twelvers, started around the end of the ninth century.¹² By that time, as we have seen, the development of the Sharia in the orthodox Sunni world had almost been completed: the major schools had been established and the process of ijtehad reached its climax. Thus, following this well-paved path, the Shii Fiqh started, “having the same pattern, recognizing the same principal institutions... expressed in the same literary form as the Sunnite law... (and even) directly borrowed rules developed in the Sunnite schools” (Coulson. 1964: 194–195).