Subjects of Jurisprudence
The most famous division of jurisprudential subjects is: worship and transactions. Transactions are divided into contracts, one-party contracts and miscellaneous rulings.
Shahīd al-Awal divided jurisprudence into these subjects along the mentioned foundations when he said: “All of this is divided into four parts; worship, contracts, one-party contracts and miscellaneous rulings.”
This division is found in such books of the older scholars like Sharāya‛ al-Islām illī.)aqiq al-H)by Muh
The subject of taqlīd or imitation a scholar is mentioned in the books of jurisprudence along with subjects relating to it as an introduction. They say that it is obligatory for every mukalaf who has not reached the level of ijtihād to follow someone in taqlīd or practice precaution in worship and transactions even if they are recommended or permissible actions, with the exception of self-evident rulings. The condition for practicing precaution is that one knows the areas of precaution (and only a few people actually know this). The actions of a normal person, who does not know the areas of precaution, without performing taqlīd are invalid.
Then the section of worship is mentioned: Worship is an action that depends on having the intention of being close to Allah, for example, prayer.
illī mentioned ten different subjects in the)aqiq al-H)Muh section of worship:
1. Spiritual purification (ahārah)t): Spiritual purification is the usage of a pure substance conditional upon an intention. There are two types of spiritual purification; spiritual purification from physical impurities that stem from the body (al-khabath) and spiritual purification from spiritual impurities (adath)al-h).
Spiritual purification from physical impurity consists of cleaning the body, clothes or anything else from the ten impure substances: urine, feces, blood, semen, carcass, etc. This form of purification does not depend on having an intention.
Spiritual purification from spiritual impurities consists of ū')wud, ghusl and tayammum. This form of spiritual purification is a condition for such worships as prayer and awāf)t. The form of spiritual purification is broken by different natural actions such as sleep, urination and ejaculation, it is dependant on an intention.
There are eleven items which one can use to spiritually purify something that has become physically impure. They are as follows: water, earth, sun, the change from one body to another, the evaporation of a third of boiling grape juice, transportation, Islam, imitation, removing the physically impure substance and refraining an animal that has eaten physically impure substances in place of food from eating more physically impure substances.
2. Prayer (alāh)s): Prayer refrains one from committing terrible actions. It is the foundation of religion and if it is accepted all other forms of worship will be accepted but if it is rejected all other forms of worship will be rejected.
In this section the obligatory daily prayers are discussed as well as the prayers on the two holy days
#8219;īd), the funeral prayer, the prayer of the signs, the prayer after awāf)t and recommended prayers such as the nawāfil. The conditions of prayer are also discussed along with the foundations of prayer, the precepts to prayer and the actions that invalidate the prayer. The different types of prayer are also discussed, such as the prayer of a traveler, individual prayer, congregational prayer and make-up prayers.
3. Taxes (zakāh)
: Zakāh is a form of tax which is applicable to nine different items: gold, silver, wheat, barley, dates, grapes, cows, sheep and camels. The conditions of these nine items are discussed in jurisprudence, how much must be paid and how the money should be spent. This form of tax is mentioned in the Qurān, for the most part, next to prayer. A verse that mentions how this tax should be spent is in Sūrah Tawbah, verse 60.
4. The one-fifth tax (khums)
: Khums is another form of tax taken from one fifth of one's property. The Sunni religion claims that this tax is applicable to war-booty alone. One fifth of the war-booty is taken and added to the Islamic treasury. The Ahl al-Bayt (a) jurisprudential sect says that war-booty is only one of the items that this tax is applicable to. The following items are added to war-booty: mines, treasure, lawfully obtained money mixed with unlawfully obtained money in such a way that one does not know how much of it is lawful and how much is unlawful and one does not know the rightful owner, land that an unbeliever living in a Muslim country buys from a Muslim, treasures taken from the sea and money saved for over a year. The proof that the Ahl al-Bayt (a) sect uses is the khums verse (al-Infāl:41) and traditions from the Ahl al-Bayt (a).
5. Fasting (awm)s)
: Fasting is obligatory on a mukalaf, who has come of age and does not have any excuse. One must fast during the month of ān)Ramad in every year. It is also recommended to fast on other days throughout the year, except the two holy days
#8219;īd), for it is forbidden to fast on those days. It is disliked to fast on the tenth day of the month of arram)Muh. A fasting person must refrain from eating, drinking, intercourse, lowering his head under water, putting thick smoke into his throat, etc.
6. Staying in a mosque (i‛tikāf)
: The Arabic term i‛tikāf literally means staying in a specific place, but when used as a jurisprudential term it means staying for an extended time in a mosque in order to worship. This is an act of worship that a person does by fasting for three or more days in a mosque. The different rules and conditions of this are explained in jurisprudence. I‛tikāf is essentially recommended, but if one performs i‛tikāf for two days, the third day becomes obligatory. One must perform this act of worship in the Holy Mosque of Mecca, the Prophet's Mosque in Medina, the Kufa Mosque, The Basra Mosque, or, at least, the main congregational mosque of a city. One may not perform this act in a small mosque. The Prophet (s) would perform i‛tikāf on the last ten days of the month of ān)Ramad.
7. Pilgrimage (ajj)h)
: The Arabic term ajj)h literally means intention, but in jurisprudence it is a term which comprises of different actions performed in a specified place (Mecca and its surroundings). It is obligatory on one who meets all of the conditions. The actions of the pilgrimage are as follows: putting on the special rām)ih clothes in Mecca, stopping in ‛Arafāt, staying in al-mash'ar, throwing the stones at the 'uqbah satan, sacrificing an animal, shaving one's head, walking around the Ka‛bah seven times (awāf)t), awāf)t prayer, afā and Marwah,)running back and forth between S awāf al-nisā')t, awāf al-nisā')t prayer, throwing the stones at the satans, and staying in Mina.
There are three kinds of pilgrimage. The first is called al-tamata‛ and is obligatory on those whose house is more than 92 kilometers from the Holy Mosque of Mecca. The second and third are called al-qirn and al-ifrād respectively. These are obligatory on those whose house is less than the mentioned distance.
8. Small pilgrimage
#8219;umrah): There are two types of the small pilgrimage. The first is called al-tamata‛ and is obligatory on every mukalaf who can perform the pilgrimage and lives more than 92 kilometers from the Holy Mosque of Mecca. The second type is called al-ifrād and is obligatory on anyone who is financially able to perform it, whether the big pilgrimage has become obligatory on him or not, and does not live more than 92 kilometers from the Holy Mosque of Mecca.
The actions that must be performed in the small pilgrimage are: putting on the rām)ih clothes in one of the specified places, awāf)t, awāf)t afā and)prayer, running back and forth from S Marwah and cutting one's hair.
9. War (jihād)
: There are two types of war in Islam: offensive and defensive. The Ahl al-Bayt (a) jurisprudential sect claims that offensive war is something that only an infallible can order and becomes obligatory on men. But, the defensive war can become obligatory at any time and can also become obligatory on men and women.
War can also be divided into civil and international war. It is also obligatory to fight a group that leaves the community of an Imām, like the Khawārij and the enemy armies of Jamal and ifīn)S.
The following subjects are also mentioned under the main subject of war: rules pertaining to followers of other revealed religions who are living in Muslim countries and peace treaties between Islamic governments and non-Islamic governments.
10. Enjoining good and forbidding evil
#8219;amr bi al-ma‛rūf wa nahī ‛an al-munkar): Islam is a religion that deals with social issues. The importance of a healthy society is emphasized in the divine laws that were sent for mankind's success. It is obligatory, according to Islamic law, for everyone to protect good and moral actions and to fight against bad and immoral actions. This is what is mentioned under the subject of enjoining good and forbidding evil. Refer to the verse in Sūrah Āl Imran: 104.
There are conditions pertaining to this that are mentioned in the books of jurisprudence.
After the section of worship, the section of contracts is mentioned. This section has fifteen different subjects
1. Business (tajārah)
: Business transactions, buying, conditions of the buyer and seller, conditions of the items being bought or sold, conditions of the contract, the wording of the contract, different kinds of transactions: resale with specification of gain, resale with the specification of loss, and tuliyyah are also discussed. Tuliyyah is the transfer of the sold to the buyer without any addition or subtraction from it.
2. Collateral (rahn)
: The item that is given is called collateral, the person giving the collateral is called a rāhin. The Rāhin must offer this transaction by using any words that relay his offer and the murtahan, or person who takes the collateral, must accept it by using any words that relay his acceptance.
3. Bankruptcy (mufallas)
: A bankrupt person is one who does not have enough money to pay back his debts. The Islamic jurist prevents this person from using his property with the intent of him paying back his debts, as much as possible.
4. Limitation of legal competence (ajr)h)
: The Arabic term 'ajr)h' literally means preventing and what is meant is the prevention from spending one's money. There are many instances where one is prevented from spending his money due to bankruptcy (which was mentioned), a child who has not come of age, an insane person, an incompetent person and a dead person who has made a will for over one-third of his property.
5. Guarantee (amān)d)
: This is a contract that needs both an offer and an acceptance. There is a difference in guarantees between the Shia and the Sunni. The Ahl al-Bayt (a) jurisprudential sect defines 'amān)d' as the transfer of the owed from the debt of the person who owes money to the debt of the guarantor. After this the person who lent money does not have the right to ask the person he lent the money to for his money, rather he must ask the guarantor. Here, the guarantor pays back the debt and then seeks out the person who owed the money in the first place to pay him back. But, the Sunni jurisprudential sect claims that the person who lent the money can get his money from either the person he loaned it to or the guarantor.
6. Peace (ulh)s)
: The agreement upon giving up) one's possession of an item or the yield of an utilizable thing or the yield of a right. It is not conditional on there being a fight before it.
The peace that is meant here is not the same as what is meant in the subject of war (jihād). Peace that is mentioned in the subject of war is a political agreement, but the peace that is mentioned here is related to financial matters, for example if one owes an unknown amount of money to another he can make 'peace' with that person by paying him a specific amount of money agreed upon by both parties.
7. Partnership (sharkah)
: Partnership means the ownership of property or a right by more than one person. An example of this is the inheritance that belongs to a few children. They are partners in the inheritance before it is divided up. Another example is when two or more people own a car, horse or piece of land, even if two people share in a piece of virgin land that they cultivated.
There are two types of partnerships
: contracted and non-contracted. What were mentioned above are examples of non-contracted partnerships. Examples of contracted partnerships are business partnerships, farmland partnerships and industrial partnerships. There are many rules mentioned in the books of jurisprudence pertaining to contracted partnership.
8. Silent partnership
#257;ribah)mud): this is a type of contracted partnership where there is a partnership between one's property and another's work. One or more people give money to another person or persons to conduct business transactions with that money.
9. Silent partnership in farming and running an orchard (mazāri‛ah and masāqāh)
: These are two types of partnerships similar to āribah)mud. They are both partnerships between money and work. The difference between them is that āribah)mud is a partnership between money and work in business while mazāri‛ah is a partnership between money and work in farming, for example, the owner of a land makes a contract with a farmer and they split up the profits in an agreed upon fashion. Masāqāh is a partnership between money and work in an orchard, for example, the owner of the land makes a contract with the gardener and they split the profits that they make from the fruit.
One of the conditions that must be observed in a partnership between money and work, whether it is āribah)mud, mazāri‛ah or masāqāh, is that if a loss occurs, the person who put up money looses. The profit is, also, not a fixed rate. The person who put up money gets a percentage of the profits, whether they are a lot or a little. In this way the person who puts up the money and the person who works are equal.
10.and 11. Trust and borrowing (wadī‛ah and ‛ārīyah)
: Wadī‛ah is giving a piece of one's property to another to protect it. Ārīyah is letting another use one's property in order to make a profit. Both of these are kinds of trusts with this difference that in wadī‛ah one gives his property to another in order for it to be protected. So, the other person is not allowed to use profits from that property without the owner's consent. This is the opposite of ārīyah where the other person uses the property in order to gain something from it.
12. Rent (ijārah)
: This is a contract where one rents the yield of an utilizable thing or a right for a specified price. There are two types of renting. The first is where one rents a piece of property at a specified price, for example if he rents a house, car or even clothes. The second is where one rents another human being, what is meant by this is that he pays for another person to perform a specific action, for example sowing clothes, cutting hair, building a house or other things.
Renting is similar to buying and selling because two pieces of property are being exchanged, with the difference that in buying and selling a piece of property is exchanged with another while in renting a piece of property is exchanged with the utilization of another piece of property.
There is a similarity between renting and ārīyah. In both renting and ārīyah utilization occurs, but in renting the person pays for the ability to use the other's property and in ārīyah the person does not pay which means he does not have a right in using the property.
13. Representation (wakālah)
: this is allowing another to perform a certain matter in one's stead during his life. An example of this is that man, nowadays, needs someone to represent him in a courtroom or a representative in a contract, for example, business contracts, renting, ārīyah, trusts, religious endowments, divore, etc.
The person who has another represent him is called the represented, the person who represents him is called the represent and the action is called representation.
14. Religious endowment and charity (waqf and adaqah)s)
: Waqf means to give away one's property to a special group of people. There is a difference of opinion about waqf needing an aqiq Hillī claims that it does)intention of getting closer to Allah or not. Muh not because it is mentioned in the section of contracts, not worship.
There are two types of waqf
: specific and general. Each one of these has their own special laws.
15. Religious endowment of a house or yield (sukna and abs)h)
: These are similar to waqf. The difference is that in waqf the property is given away for ever and the person is not able to retrieve his property. abs)H is when a person allows one to use the yield of his property in order to perform humanitarian services for a specific amount of time, and then the property is returned to its owner.
Sukna is when one allows another to live in his house for a specific amount of time and then the house is returned to its owner.
16. Gifts (hibāt)
: One of the things that one can do with his possessions is give them to another person. There are two types of gifts: those that something is given in return and those that something is not given in return. One is not able to take back a gift in which something was given in return for it, but one can take back a gift in which something was not given in return for it unless it was a gift given to one's relatives or the gift is no longer in existence.
17. Contests and archery (sabq and rimāyah)
: These are two forms of contracts that are conditional on contests involving horses, camels or archery. Islam has forbid all kinds of gambling except these kinds because they improve military skills and improve one's ability to kill in war. Contests and archery are related to the section on jihād.
#257;yā)was): A will is making someone the possessor of an item or yield after one's death. This is according to the will one makes regarding his possessions and small children (if it is allowed to make a will regarding the raising and protection of one's children) and occurs after his death. A person is able to make a will on one third of his property and spend it however he likes. The Islamic jurists have divided a will into three parts. First is property, one makes another the owner of a certain part of his property. Second is contracts, one pays another to represent him in performing a pilgrimage, zīyārah, prayer, fast are any other righteous deed. Third is freeing, one frees one of his slaves, for example.
19. Marriage (nikāh)
: Jurists mention the) conditions of the marriage contract. Then they mention who is forbidden to marry
#257;ram)muh), for example a father and daughter, a mother and son, a sister and brother and so forth. Then they mention the two forms of marriage, permanent and temporary. Then they mention what happens if the marital duties are violated. Then the jurists mention adequate support, which is one of the wife's rights over the husband.
aqiq Hillī)This is the end of the section on contracts. Muh mentioned that there are 15 different subjects in this section, but then mentioned 19. It is not understood why. Maybe it was a mistake or maybe he mentioned some of the subjects together.