SHI’AH. شعياء
Lit. “Followers.” The followers of ‘Ali, first cousin of Muhammad and the husband of his daughter Fatimah. The Shi’ahs maintain that ‘Ali was the first legitimate Imam or Khalifah, or successor, to the Prophet, and therefore reject Abu Bakr, ‘Umar, and ‘Usman, the first three Khalifahs of the Sunni Muslims, as usurpers. They are also called the Imamiyahs, because they believe the Muslim religion consists in the true knowledge of the Imam or rightful leaders of the faithful. Also the Isna ‘ashariyah, or the twelveans, as followers of the twelve Imams. The Sunni Muslims call them the Rafizi, or the forsakers of the truth. The Shi’ahs strenuously maintain that they are the “orthodox” Muslims, and arrogate to themselves (as do also the Sunnis) the title of at-Mu’minun; or the “True Believers.”
The spirit of division, which appeared. among the followers of Muhammad, even before his death, broke out with greater violence after it; and the rapid strides of his successors to even imperial power, only afforded a wider sphere for ambition. The great and radical difference between the Shi’ahs and Sunnis, as we have already remarked, arises from the former maintaining the divine and indefeasible right of ‘Ali to succeed to the Khalifate on the death of the Prophet. ‘Ali’s claims, they assert, rested on his nearness of kindred to Muhammad, of whom he was a cousin, and on his having married Fatimah, the only offspring of the Prophet which survived him. They also assert that he was expressly declared his successor by the Prophet himself, under direct guidance from God.
The text quoted in defence of the divine institution of the Khalifate in the Prophet’s own family, is the 118th verse of the Suratu ‘l-Baqarah, or the Second Chapter of the Qur’an, which reads : —
“And when his Lord tried Abraham with words and he fulfilled them, He said, ‘I am about to make of thee an IMAM to mankind’: he said, ‘Of my offspring also?’ ‘My covenant,’ said God, ’embraceth not evil doers.'”
According to the Shi’ahs, this passage shows that the Imamate, or Khalifate, as a divine institution, and the possessor thereof must be of the seed of Abraham. This the Sunnis would also admit, as they hold that the true Khalifah can only be one of the Quraish tribe [KHALIFAH.], but from the expression, a my covenant embraceth not evil doers,” the Shi’ah doctors establish the super natural character of the Khalifate, and hold that the divinely appointed leader must himself be without spot or blemish or capacity to sin. The primeval creation of ‘Ali is therefore a dogma of the Shi’ah faith.
The author of the Hayatu ‘l-Qulub (Merrick’s ed., p. 4), says: “‘the Prophet declared that the Most High had created him. and ‘Ali and Fatimah, and Hasan and Husain before the creation of Adam, and when as yet there was neither heaven, nor earth, nor darkness, nor light, nor sun, nor moon, nor paradise, nor hell.’ [HAQIQATIU’L-MUHAMMADIYAH.]
The Shi’ah traditions also give very lengthy accounts of the nomination of ‘Ali by the Prophet to be his successor. The following is the account given in the Hayatu ‘l-Qulub (p, 334):-
“When the ceremonies of the pilgrimage were completed, the Prophet, attended by ‘Ali and the Muslims, left Makkah for at-Madinah. On reaching Ghadirkhum. the Prophet halted, although that place had never been known as a stopping-place for caravans because it had neither water nor pasturage. The reason for stopping at this place being a direct message from the Almighty. The Prophet had received divine messages on the subject before, but He had not before expressly appointed the time of ‘Ali’s inauguration.”
* * * *
“As the day was very hot, the Prophet ordered them to take shelter under some thorn trees. Having ordered all the camel-saddles to be piled up for a pulpit, he commanded a herald to summon the people around him. Most of them had bound their cloaks on their feet as a protection from the excessive heat. When all the people were assembled, the Prophet ascended the pulpit made of camel-saddles, and, calling to him the Commander of the Faithful (‘Ali), placed him on his right hand. Muhammad then gave .praise to God, and foretold his own death, saying that he had been called to the gate of God. He then said, ‘I leave among you the Book of God, to which, while you adhere, you will never go astray. I leave with you the members of my family who cannot be separated from the Book of God until both they and the Book join me at the fountain of al-Kausar’ [KHAUSAR.] He then, with a loud voice, said,’ Am I not dearer to you than your own lives?’ And all the people said, ‘Yes..’ He then took the hands of ‘Ali and raised them up so high, that the white of his armpits appeared, and said, ‘Whosoever from his heart receives me as his master, then let him receive ‘Ali. O Lord, befriend ‘Ali.. Be the enemy of all his enemies. Help all who help him, and forsake all who forsake him.”
The writer also says:-
“Certain authorities, both Shi’ah and Sunni, declare that when the Prophet died, the hypocritical Muhajirs and Ansars, such as Abu Bakr, ‘Umar, and ‘Abdu ‘r-Rahman ibnu ‘l-‘Auf, instead of visiting the family of the Prophet to comfort them at the time of his death. assembled at the abode of the Banu Saudah, and plotted to seize the Khalifate. Most of them did not perform the prayers at the Prophet’s burial, although ‘Ali sent to call them for the purpose. This plan was to make Abu Bakr Khalifah, and for this they had plotted in the Prophet’s lifetime. The hypocritical Ansara however, wished to make Sa’d ibbn ‘l Ahadah Khalifah, but they were over-ruled by the Muhajirs. A certain man brought the information that Abu Bakr was constituted Khalifah, when ‘Ali was in the act of filling in the earth of the Prophet’s grave, and said that the hypocrites had feared that if they waited till the funeral ceremony was over, they would not succeed in their design of depriving ‘Ali of his rights. . ‘Ali laid his spade on the ground and recited the first verses of the xxixth Surah of the Qur’an: ‘A.L.M. Do men reckon that they will be left alone who say, “We believe,” and not be tried? We did try those who were before them, and God will surely know those who are truthful, and he will surely know those who are liars.'”
The Shi’ahs believe that at this time God made special revelations to Fatimah, the Prophet’s daughter, and ‘Ali’s wife. These revelations are said to have been possessed by the last. of the Imams, al-Mahdi, and to be still in his possession. [MAHDI.]
It need scarcely be added that the Sunni writers deny every word of these traditions.
The strong hand of the Sunni Khalifah ‘Umar kept the claims of ‘Ali in abeyance; but when ‘Umar died, the Khalifate was offered to ‘Ali, on condition that he would govern according to the Qur’an, and the traditions as received by the Sunnis. The answer of ‘Ali not being deemed satisfactory, the election devolved upon ‘Usman (Othman). Usman was assassinated A.H. 36, and ‘Ali was elected on his own terms, in spite of the opposition of ‘Ayishah, the favourite wife of the Prophet, who had become a great influence in Islam.
. One of the first acts of ‘Ali was to recall Mu’awiyah from Syria. Mu’awiyah refused, and then claimed the Khalifate for himself. His claims were supported by ‘Ayishah. ‘Ali was eventually assassinated at Kufah, A.H. 40, and upon his death his son Hasan was elected Khalifah, but he resigned it in favor of Mu’awiyah, on the condition that he should resume it on the death of the latter. Mu’awiyah consented to this arrangement, although secretly determining that his own son Yazid. should be his successor.
Upon the death of Mu’awiyah, A.H. 60, his son Yazid, “the Polluted,” obtained the position of Imam or Khalifah, without the form of election, and with this event commenced the great Shi’ah schism, which has divided the forces of Islam until this day.
The leading, or “orthodox” sect of the Shi’ahs, the Imamiyahs, receive the following as the rightful Khalifahs :-
1. ‘Ali, the son-in-law of the Prophet.
2. Al-Hasan, the son of ‘Ali.
3. Al-Hasain, the second son of ‘Ali
4. ‘Ali, surnamed Zainu ‘l-Abidin, the son of al-Husain.
5. Muhammad al-Baqir, son of Zainu ‘l-‘Abidin.
6. Ja’far as-Sadiq, son of Muhammad al-Baqir.
7. Musa al-Kazim, son of Ja’far.
8. Ar-Raza, son of Muss.’
9. Muhammad at-Taqi, son of ar-Raza.
10. ‘Ali an-Naqf, son of Muhammad at-Taqi.
11. Al-Hasan al-‘Askari, son of ‘Ali an-Naqi.
12. Muhammad, son of al-Hasan al-Asksri. or the Imam al-Mahdi, who is supposed by the Shi’ahs to be still alive, though he has withdrawn for a time, and they say he will again appear in the last days as the Mahdi, or “director,” which the Prophet prophesied would appear before the Day of Judgment. [MAHDI.]
The Imamites trace the descent of this Imam Muhammad direct from ‘Ali, thus making him the twelfth lawful Imam, on which account they are called the Isna-‘ashariyah, or the “Twelveans.” They assert that this last Imam, whilst still a boy, being persecuted by the Abbaside Khalifahs, disappeared down a well, in the courtyard of a house at Hillah near Baghdad, and Ibn Khaldun says, so late as even in his day, devout Shi’ahs would assemble every evening after sunset at this well and entreat the absent Imam to appear again on earth.
In the present day, during the absence of the Imam, the Shi’ahs appeal to the Mujtahidun, or “enlightened doctors of the law,” whose opinion is final on all matters, both temporal and spiritual.
There have been two great schisms in the succession of the Imams, the first upon the death ‘Ali Zainu ‘l-‘Abidin, when part of the sect adhered to, his son Zaid, the founder of the Zaidiyah sect. And the second on the death of as-Sadiq, when his father nominated his second son Musa al-Kazim, as his successor, instead of allowing the Khalifate to go in Isma’il’s family those who adhered to Isma’il’s’ family being called Isma’iliyah. The great body of the Shi’ahs acknowledge Musa-al Kazin and his descendants as the true Imams.
The Ismali’iiyah, like the Tweleans, make profession of a loyal attachment to the cause of ‘Ali. Their schism was occasioned by a dispute regarding the succession to the Imamate on the death of Imam Ja’far Sadiq. Jafar had four sons the eldest of whom was Isma’il. One day, however, Isma’il was seen in a state of inebriety, and his father disinherited him, and appointed his son Musa. The greater number of the Shi’ahs accepted this decision, but a small number, who regarded the drunkenness of the Imam as an evidence that he accepted the hidden meaning and not the legal precepts of Islam (!), remained attached to Isma’il. They say from the time of ‘Ali to the death of Mubammad, the son of lsma’il, the Imams were visible, but from his death commenced the succession of concealed Imams. The fourth of these “concealed” was a certain ‘Abdu ‘llah, who lived about the third century of the Hijrah.
The contentions of the Shi’ahs regarding the succession have become endless, and of the proverbial seventy-three sects of Islam not fewer than thirty-two are assigned to the Shi’ahs, and, according to the sharbu ‘l-Muwaqif, there are as many as seventy-three sects of the Shi’ahs alone.
According to the Sharhu ‘l-Muwaqif, the three principal sects of the- Shi’as are (1) Ghulat, or Zealots, the title generally given to those who, through their excessive zeal for the Imams, have raised them above the degree of human beings. (2) Zaidiyah, those who separated after the appointment of Muhammad Baqir to the Khalifate, and followed Zaid. (3) Imamiyah, or those who acknowledged Ja’far Sadiq as the rightful Imam, to the exclusion of Isma’il, and which appears to be what maybe called the orthodox sect of the Shi’as. Out of these three great divisions have grown innumerable sects, which it would be tedious to define. All Shi’ah religionists are more or less infected with mysticism.
Many of the Shi’ahs have carried their venerations for ‘Ali so far, as to raise him to the position of a divine person, and most of the sects mike their Imams partakers of the divine nature. These views have their foundation in the traditions already quoted, which assert the pre-existence of Muhammad and ‘Ali, and they have undoubtedly been fostered by the gnostic tendencies of all forms of Persian belief, especially Sufiism. [SUFI.]
Since the accession of Isma’il, the first of the Sufi dynasty, A.D. 1499, the Shi’ah faith has been the national religion of Persia. Nadir Shah, when at the summit of his power, attempted to convert the Persians to the Sunni form of Islam, in order to assist his ambitious designs, but, the attempt failed, and the attachment of the Persians to the Shi’ah faith has remained as decided as ever.
Sir Lewis Pelly remarks:-
“Though the personal history of Au and his sons was the exciting cause of the Shiah schism, its predisposing cause lies far deeper in the impassable ethnological gulf which separates the Aryan and Semitic races. Owing to their strongly centralised form of government, the empire of the Sassanides succumbed at once before the onslaught of the Saracens; still, Persia was never really converted to Islam, and when Mohammed, the son of Ali, the son of Abdullah, the son of Abbas, the uncle of the Prophet Mohammed, proclaimed the Imamate as inherent of divine right, in the descendants of the Caliph Ali, the vanquished Persians rose as one man against their Arab conquerors. The sons of Abbas had all espoused the cause of their cousin Ali, against Moawiyah, and when Yezid succeeded to the Caliphate, Abdullah refused to acknowledge him, and retired to Mecca. It was he who tried to dissuade Husain from going to Qufa. His son was Ali, who, by order of the Caliph Walid, was flogged and paraded through the streets of Damascus, mounted on a camel, with his face to it tail, and it was to avenge this insult on his father that Mohammed resolved to overthrow the dynasty of the Ommiades.
The Muslims of the province of Oudh in British India are for the most part Shi’ahs, and there are a few in the region of Tirah, on the frontier of India with the exception of the province of Oudh, the Muslims of India are for the most part Sunnis of the Hanafi sect, but practices peculiar to the Shi’ahs have long prevailed in certain localities. In most parts of India, where the parties are Shi’ahs, the law of this school of jurisprudence is always administered, especially with regard to marriage and inheritances.
It is not correct, as stated by Sale (Introduction to the Koran) and others, that the Shi’ahs reject the Sunnah, or Traditions; for although the Shi’ahs do not receive the “six correct books of the Sunnis,” they acknowledge five collections of their own namely: (1), Al-Kafi, (2) Manlyastahzirahn ‘l-Faqih, (3) Tahzib, (4) Istibsar, (5) Nahju ‘l-Balaghah. [TRADITIONS.] The works written on the traditions are very numerous.
The Shi’ah school of jurisprudence is of earlier date than that of the Sunnis, for Abu Hanifah, the father of the Sunni Code of Muslim law, received his first instructions in jurisprudence from Ja’far as-Sadiq, the sixth Imam of the Shi’ahs; but this learned doctor afterwards separated from his teacher, and established a code of laws of his own.
The differences between the Shi’ahs and the Sunnis are very numerous, but the following are the principal points:-
(1) The discussion as to the office of Imam, already alluded to.
(2) The Shi’ahs have a profound veneration for the Khalifah ‘Ali, and some of their sects regard him as an incarnation of divinity, whilst they all assert that next to the Prophet, ‘Ali is the most perfect and excellent of men.
(3) They still possess Mujtahids, or ” enlightened doctors,” whose opinion is final in Matters of Muslim law and doctrine. The Mujtahid is the highest degree amongst Muslim doctors. The Sunnis say, in the present divided condition of Islam it is impossible to appoint them, but the Shi’ahs still elect them in Persia, and the appointment is confirmed by the king. [MUJTAHID.]
(4) They observe the ceremonies of the Muharram in commemoration of al-Hasan and al-Husain, whilst the Sunnis only observe the tenth day of the Muharram, or the ‘Ashura’, being, they say, the day on which God created Adam. [MUHARRAM.]
(5) They include the Majusi, or fire worshippers, amongst the Ahlu ‘l-Kitab, or people who have received an inspired record from God, whilst the Sunnis only acknowledge the Jews, Christians, and Muslims as such.
(6) They admit the principle of religious compromise called Taqiyah (lit. “Guarding oneself “). A pious fraud, whereby the, Shi’ah Muslim believes he is justified in either smoothing down, or, denying, the peculiarities of his religious belief inorder to save himself from persecution. [TAQIYAH.]
(7) There are also various minor differences in the liturgical ceremonies of the Shi’ahs, which will be found in the account of the liturgical prayers. [PRATER.]
(8) The differences between the civil law of the Shi’ahs and Sunni have been carefully noted in Mr. N. B. E. Baillie’s Introduction to his Digest of the Imameea Code (London, 1869):-
(a) “With regard to the sexes, any connection between them, which is not sanctioned by some relation founded upon contract or upon slavery, is denounced by both the sects as zina’, or fornication. But, according to the Hanafiyahs, the contract must be for the lives of the parties, or the woman be the slave of the man, and it is only to a relation founded on a contract for life that they give the name of nikah, or marriage. According to the Shi’ahs, the contract may be either temporary, or for life, and it is not necessary that the slave should be the actual property of the man; for it is sufficient if the usufruct of her person be temporarily surrendered to him by her owner. To a relation established in any of these ways they give the name of nikah, or marriage, which is thus, according to them, of three kinds, permanent, temporary, and servile. It is only their permanent marriage that admits of any comparison with the marriage of the Hanafiyahs. And hero there is, in the first place, some difference in the words by which the contract is effected. According to the Hanafiyahs, the words may be sarih (express) or kiniyah (ambiguous). According to the Shi’ahs, they must always be express; and to the two express terms of the other sect (nikah and tazwij) they add a third rnut’ah which is rejected by the others as insufficient. [MUT’AH.] Further, while the Hanafiyahs regard the presence of witnesses as essential to a valid contract of marriage, the Shi’ahs do not deem it to be in anywise necessary. The causes of prohibition correspond, to some extent, in both schools; but there Is this difference between them, that the Hanafiyah includes a deffernce of dar, or nationality, among the causes of prohibition, and excludes li’an, or imprecation, from among them; while the Shi’ah excludes the former and includes the latter. There is, also, some difference between them as to the conditions and restrictions under which fosterage becomes a ground of prohibition. And with regard to infidelity, though both schools entirely prohibits any sexual intercourse between a Muslimah or Muslim woman and a man who is not of her own religion, the Hanafi allows of such intercourse, under the sanction of marriage or of slavery, between a Muslim and any woman who is a kitabiyah, that is, who belongs to any sect that is supposed to have a revealed religion, while the Shi’ah restricts such connection to mut’ah, or temporary and servile marriages. Among Kitabiyah both schools include Christians and Jews, , hut the Hanafi rejects Majusis, or fire-worshippers, who are included among them by the Shi’ahs. The Shi’ahs do not appear to make any distinction between invalid and valid marriages, all that are forbidden being apparently void according to them. But the distinction is of little importance to the parties themselves, as under neither of the schools does an unlawful marriage confer any inheritable quality upon the parties; and the rights of the children born of such marriages, are determined by another consideration, which will be adverted to in the proper place thereafter.
(b) With regard to the servile marriage of the Shi’ahs, it is nothing more than the right of sexual intercourse which every master has with his slaves; but there is the same difference between the two sects, in this case, as in that of marriage by contract. According to the Hanafiyahs, the right must be permanent, by the woman’s being the actual property of the man. According to the Shi’ahs, the right may be temporary, as when it is conceded for a limited time by the owner of the slave. When a slave has borne a child to her own master, which he acknowledges, she becomes his umm-ul-walad, or mother of a child, and cannot be sold, while she is entitled to emancipation at her master’s death. According to the Hanafiyahs, these privileges are permanent, but, according to. the Shi’ahs, the exemption horn sale is restricted to the life of her child, and her title to emancipation is at the expense of her child’s share in the master’s estate. It that be insufficient, her enfranchisement is only pro tonto, or so far as the share will go. Where the child’s father has only an usufructuary right in the mother, the child is free, though the mother, being the property of another, does not acquire the rights of an umm-ul-waled.
(c) With regard: to the persona who may be legally slaves, there seems to be little, if any, difference between the two sects. According to the Shi’ahs, slavery is the proper condition of the harabis, or enemies, with the exception only the Christians, Jews, and Majusis, or fire-worhippers, so long as they continue in a state of zimmah, or subjection, to the Musulman community. If they renounce their zimmah, they fall back into the condition of ordinary harabis, and if a person should buy from a harabi his child, or wife, or any of his consanguineous relations, the person so purchased is to be adjudged a slave. There seems also to be but little difference in the manner in which have may be enfranchised, or their bondage qualified. But there is an important difference as to children: for, according to the Hanafiyahs, a child follows the conditions of its mother, being free or a slave, as she is the one or the other; while, according to the Shi’ahs, it is free, if either of its parents be so. Both the sects are agreed that marriage may be dissolved by the husband at any time at his pleasure, and to such dissolution they both give the name of talaq.
(d) But there are some important differences between the repudiation of the two sects. Thus, while the Hanafiyahs recognize two forms, the Sunni and Bida’i, or regular and irregular, as being equally efficacious, and subdivide the regular into two other forms, one of which thev designate as absan, or best and the other as basan, or good, the Shi’ahs reject these distinctions altogether, recognizing only one form of the Suuni, or regular. So also as to the expressions by which repudiation may be constituted; while the Hanafiyahs distinguish between what they call sarih, or express words, which are inflections of the word talaq, and various expressions which they term kinayah, or ambiguous, the Shi’ahs admit the former only. Further, the Hanafiyahs do not require intention when express words are used, so that, though a man is actually compelled to use them, the repudiation is valid according to them. Nor do they require the presence of witnesses as necessary in any case to the validity of a repudiation; while, according to the Shi’ahs, both intention and the presence of two witnesses in all eases are essential. Both sects agree that repudiation may be either ba’in (absolute) or raja’i (revocable), and that a repudiation given three times cannot be revoked, nor a woman so repudiated be again married by her husband until she has been intermediately married to another man, and the marriage with him, has been consummated. But, according to the Hanafiyahs, repudiation may be made irrevocable by an aggravation of the terms, or the addition of a description, and three repudiations may be given in immediate succession, or even unico contextu, in one expression; while, according to the Shi’ahs, on the other hand, the irrevocability of a repudiation is dependent on the state in which the woman may be at the time that it is given, and three repudiations, to have their full effect, must have two Intervening revocations. To the ba’in and raja’i repudiations of both sects, the Shi’ahs add one peculiar to themselves, to which they give the name of the talaq-ul-‘iddah, or repudiation of the iddah, and which has the effect of rendering the repudiated woman for ever unlawful to her husband, so that it is impossible for them ever to marry with each other again. The power of revocation continues until the expiration of the ‘iddah, or probationary period for ascertaining whether a woman is pregnant or not. After it has expired, the repudiation becomes absolute, according to both schools. So long as it is revocable, the parties are still in a manner husband and wife; and if either of them should happen to die, the other has a right of inheritance in the deceased’s estate.
(e) With regard to parentage, maternity is established, according to the Hanafiyahs, by birth alone, without any regard to the connection of the parents being lawful or not. According to the Shi’ahs, it must in all cases be lawful; for a waladu ‘x-zina’, or illegitimate child has no descent, even from its mother, nor are there any mutual rights of inheritance between them. For the establishment of paternity there must have been, at the time of the child’s conception, according to both sects, a legal connection between its parents by marriage or slavery, or a semblance of either. According to the Hanafiyahs, an invalid marriage is sufficient for that purpose, or even, according to the head of the school, one that is positively unlawful; but, according to the Shi’ahs, the marriage must in all cases be lawful, except when there is error on the part of both or either of the parents. Again, as to the children by slaves, express acknowledgment by the father is required by both the sects, except when the slave is his umm ‘l-walad, or has already borne a child to him; for though, according to the Shi’ahs, there are two reports on the subject, yet, by the most generally received of these, a slave does not become the wife of her master by mere coition, and her child is not affiliated to him without his acknowledgment. With regard to children begotten under a semblance of right, the Hanafiyahs require some basis for the semblance in the relation of the parties to each other; while, according to the Shi’ahs, bona fide belief on the part of the man that the woman is his wife or his slave seems to be all that is required; while no relation short of a legal marriage or slavery, without such belief either on the part of the man or the woman would apparently be sufficient.
(f) On the subject of testimony, both schools require that it shall be direct to the point in issue; and they also seem to be agreed that when two or more witnesses concur in asserting a fact in the same terms, the judge is bound by their testimony, and must give his judgment in conformity with it. They agree in requiring that a witness should in general have full knowledge, by the cognizance of his own senses, of the fact to which be is bearing testimony, but both allow him, in certain exceptional cases, to testify on information received from others, or when he is convinced of the fact by inference from circumstances with which it is connected.
(g) Nasab, or descent, is included by both sects among the exceptional facts to which a witness is allowed to testify when they are generally notorious, or when he is credibly informed of them by others. But according to the Hanafiyahs, it is enough if the information be received from two just men, or one just man and two just women, while the Shi’ahs require that it should have been received from a considerable number of persons in succession, without any suspicion of their having got up the story in concert. The Hanafiyahs class marriage among the exceptional facts, together with Nasab’, but, according to the Shi’ahs, it more properly follows the general rule, which requires that the witness should have the direct a evidence of his own senses to the fact to which he is giving his testimony. They seen, however, to admit an exception in its favour; for they reason that, as we adjudge Khadijah to have been the mother of Fatimah, the daughter of the Prophet, though we know it only by general notoriety and traditions, which is but continued hearsay, so also we may equally decide her to have been the Prophet’s wife, for which we have the same evidence, though we were not present at the contract of marriage, nor even heard the Prophet acknowledge it. Both sects are agreed that a witness may lawfully infer and testify that a thing is the property of a particular person when he has seen it in his possession; and so, according to the Hanafiyahs, ‘When a person has seen a man and woman dwelling in the same house, and behaving familiarly with each other in the manner of married persona, it is lawful for him to testify that she is his wife, in the same way as when he has seen a specific thing, in the hands of another.’ The Shi’ahs do not apply this principle of inference to the case of marriage, and there is no ground for saying that, according to them, marriage will be presumed in a case of proved continual cohabitation.
(h) There is difference between the two schools as to the person who is entitled to claim a right of shuf’ah, or pre-emption. According to the Hanafiyahs, the right may be claimed, firstly, by a partner in the thing itself; secondly, by a partner in its rights of water and way; and thirdly, by a neighbour. According to the Shi’ahs, the right belongs only to the first of these, with some slight exception in favour of the second. The claim of the third they reject altogether. In gift the principal difference between, the schools is, that a gift of an undivided share of a thing, which is rejected by the Hanafiyah is quite lawful according to the Shi’ahs.
(i) In appropriation and, alms there do not seem to be any differences of importance between the two schools. And in wills the leading difference seems to be that, while according to the Hanafiyahs, a bequest in favour of an heir is positively illegal, it is quite unobjectionable according to the Shi’ahs.
(j) In respect of inheritance, there are many and important differences between the two sects but they admit of being reduced to a few leading principles, which is now proceed to notice, following the order in which the different branches of the subject are treated of in this volume. The impediments to inheritance are four in number according to the Hanafiyahs, viz. slavery, homicide, difference of religion, and. difference of dar, or country. Of these the Shi’ahs recognize the first : the second also with some modification, that is, they require that the homicide be intentional, in other words, murder, while with the Hanafiyahs it operates equally as an impediment to inheritance; though accidental. For difference of religion the Shi’ahs substitute infidelity, and difference of country they reject entirely. Exclusion from the whole inheritance, according to the Hanafiyahs, is founded upon and regulated by two principles. The one is that a person who is related to the deceased through another has no interest in the succession during the life of that other, with the exception of half-brothers and sisters by the mother, who are not excluded by her. The other principle is that the nearer relative excludes the more remote. The former of these principles is not expressly mentioned by the Shi’ahs, but it is included without the exception in the second, which is adopted by them, and extended, so as to postpone a more remote residuary to a nearer sharer — an effect which is not even to it by the Hanafiyahs.
Lit. “Followers.” The followers of ‘Ali, first cousin of Muhammad and the husband of his daughter Fatimah. The Shi’ahs maintain that ‘Ali was the first legitimate Imam or Khalifah, or successor, to the Prophet, and therefore reject Abu Bakr, ‘Umar, and ‘Usman, the first three Khalifahs of the Sunni Muslims, as usurpers. They are also called the Imamiyahs, because they believe the Muslim religion consists in the true knowledge of the Imam or rightful leaders of the faithful. Also the Isna ‘ashariyah, or the twelveans, as followers of the twelve Imams. The Sunni Muslims call them the Rafizi, or the forsakers of the truth. The Shi’ahs strenuously maintain that they are the “orthodox” Muslims, and arrogate to themselves (as do also the Sunnis) the title of at-Mu’minun; or the “True Believers.”
The spirit of division, which appeared. among the followers of Muhammad, even before his death, broke out with greater violence after it; and the rapid strides of his successors to even imperial power, only afforded a wider sphere for ambition. The great and radical difference between the Shi’ahs and Sunnis, as we have already remarked, arises from the former maintaining the divine and indefeasible right of ‘Ali to succeed to the Khalifate on the death of the Prophet. ‘Ali’s claims, they assert, rested on his nearness of kindred to Muhammad, of whom he was a cousin, and on his having married Fatimah, the only offspring of the Prophet which survived him. They also assert that he was expressly declared his successor by the Prophet himself, under direct guidance from God.
The text quoted in defence of the divine institution of the Khalifate in the Prophet’s own family, is the 118th verse of the Suratu ‘l-Baqarah, or the Second Chapter of the Qur’an, which reads : —
“And when his Lord tried Abraham with words and he fulfilled them, He said, ‘I am about to make of thee an IMAM to mankind’: he said, ‘Of my offspring also?’ ‘My covenant,’ said God, ’embraceth not evil doers.'”
According to the Shi’ahs, this passage shows that the Imamate, or Khalifate, as a divine institution, and the possessor thereof must be of the seed of Abraham. This the Sunnis would also admit, as they hold that the true Khalifah can only be one of the Quraish tribe [KHALIFAH.], but from the expression, a my covenant embraceth not evil doers,” the Shi’ah doctors establish the super natural character of the Khalifate, and hold that the divinely appointed leader must himself be without spot or blemish or capacity to sin. The primeval creation of ‘Ali is therefore a dogma of the Shi’ah faith.
The author of the Hayatu ‘l-Qulub (Merrick’s ed., p. 4), says: “‘the Prophet declared that the Most High had created him. and ‘Ali and Fatimah, and Hasan and Husain before the creation of Adam, and when as yet there was neither heaven, nor earth, nor darkness, nor light, nor sun, nor moon, nor paradise, nor hell.’ [HAQIQATIU’L-MUHAMMADIYAH.]
The Shi’ah traditions also give very lengthy accounts of the nomination of ‘Ali by the Prophet to be his successor. The following is the account given in the Hayatu ‘l-Qulub (p, 334):-
“When the ceremonies of the pilgrimage were completed, the Prophet, attended by ‘Ali and the Muslims, left Makkah for at-Madinah. On reaching Ghadirkhum. the Prophet halted, although that place had never been known as a stopping-place for caravans because it had neither water nor pasturage. The reason for stopping at this place being a direct message from the Almighty. The Prophet had received divine messages on the subject before, but He had not before expressly appointed the time of ‘Ali’s inauguration.”
* * * *
“As the day was very hot, the Prophet ordered them to take shelter under some thorn trees. Having ordered all the camel-saddles to be piled up for a pulpit, he commanded a herald to summon the people around him. Most of them had bound their cloaks on their feet as a protection from the excessive heat. When all the people were assembled, the Prophet ascended the pulpit made of camel-saddles, and, calling to him the Commander of the Faithful (‘Ali), placed him on his right hand. Muhammad then gave .praise to God, and foretold his own death, saying that he had been called to the gate of God. He then said, ‘I leave among you the Book of God, to which, while you adhere, you will never go astray. I leave with you the members of my family who cannot be separated from the Book of God until both they and the Book join me at the fountain of al-Kausar’ [KHAUSAR.] He then, with a loud voice, said,’ Am I not dearer to you than your own lives?’ And all the people said, ‘Yes..’ He then took the hands of ‘Ali and raised them up so high, that the white of his armpits appeared, and said, ‘Whosoever from his heart receives me as his master, then let him receive ‘Ali. O Lord, befriend ‘Ali.. Be the enemy of all his enemies. Help all who help him, and forsake all who forsake him.”
The writer also says:-
“Certain authorities, both Shi’ah and Sunni, declare that when the Prophet died, the hypocritical Muhajirs and Ansars, such as Abu Bakr, ‘Umar, and ‘Abdu ‘r-Rahman ibnu ‘l-‘Auf, instead of visiting the family of the Prophet to comfort them at the time of his death. assembled at the abode of the Banu Saudah, and plotted to seize the Khalifate. Most of them did not perform the prayers at the Prophet’s burial, although ‘Ali sent to call them for the purpose. This plan was to make Abu Bakr Khalifah, and for this they had plotted in the Prophet’s lifetime. The hypocritical Ansara however, wished to make Sa’d ibbn ‘l Ahadah Khalifah, but they were over-ruled by the Muhajirs. A certain man brought the information that Abu Bakr was constituted Khalifah, when ‘Ali was in the act of filling in the earth of the Prophet’s grave, and said that the hypocrites had feared that if they waited till the funeral ceremony was over, they would not succeed in their design of depriving ‘Ali of his rights. . ‘Ali laid his spade on the ground and recited the first verses of the xxixth Surah of the Qur’an: ‘A.L.M. Do men reckon that they will be left alone who say, “We believe,” and not be tried? We did try those who were before them, and God will surely know those who are truthful, and he will surely know those who are liars.'”
The Shi’ahs believe that at this time God made special revelations to Fatimah, the Prophet’s daughter, and ‘Ali’s wife. These revelations are said to have been possessed by the last. of the Imams, al-Mahdi, and to be still in his possession. [MAHDI.]
It need scarcely be added that the Sunni writers deny every word of these traditions.
The strong hand of the Sunni Khalifah ‘Umar kept the claims of ‘Ali in abeyance; but when ‘Umar died, the Khalifate was offered to ‘Ali, on condition that he would govern according to the Qur’an, and the traditions as received by the Sunnis. The answer of ‘Ali not being deemed satisfactory, the election devolved upon ‘Usman (Othman). Usman was assassinated A.H. 36, and ‘Ali was elected on his own terms, in spite of the opposition of ‘Ayishah, the favourite wife of the Prophet, who had become a great influence in Islam.
. One of the first acts of ‘Ali was to recall Mu’awiyah from Syria. Mu’awiyah refused, and then claimed the Khalifate for himself. His claims were supported by ‘Ayishah. ‘Ali was eventually assassinated at Kufah, A.H. 40, and upon his death his son Hasan was elected Khalifah, but he resigned it in favor of Mu’awiyah, on the condition that he should resume it on the death of the latter. Mu’awiyah consented to this arrangement, although secretly determining that his own son Yazid. should be his successor.
Upon the death of Mu’awiyah, A.H. 60, his son Yazid, “the Polluted,” obtained the position of Imam or Khalifah, without the form of election, and with this event commenced the great Shi’ah schism, which has divided the forces of Islam until this day.
The leading, or “orthodox” sect of the Shi’ahs, the Imamiyahs, receive the following as the rightful Khalifahs :-
1. ‘Ali, the son-in-law of the Prophet.
2. Al-Hasan, the son of ‘Ali.
3. Al-Hasain, the second son of ‘Ali
4. ‘Ali, surnamed Zainu ‘l-Abidin, the son of al-Husain.
5. Muhammad al-Baqir, son of Zainu ‘l-‘Abidin.
6. Ja’far as-Sadiq, son of Muhammad al-Baqir.
7. Musa al-Kazim, son of Ja’far.
8. Ar-Raza, son of Muss.’
9. Muhammad at-Taqi, son of ar-Raza.
10. ‘Ali an-Naqf, son of Muhammad at-Taqi.
11. Al-Hasan al-‘Askari, son of ‘Ali an-Naqi.
12. Muhammad, son of al-Hasan al-Asksri. or the Imam al-Mahdi, who is supposed by the Shi’ahs to be still alive, though he has withdrawn for a time, and they say he will again appear in the last days as the Mahdi, or “director,” which the Prophet prophesied would appear before the Day of Judgment. [MAHDI.]
The Imamites trace the descent of this Imam Muhammad direct from ‘Ali, thus making him the twelfth lawful Imam, on which account they are called the Isna-‘ashariyah, or the “Twelveans.” They assert that this last Imam, whilst still a boy, being persecuted by the Abbaside Khalifahs, disappeared down a well, in the courtyard of a house at Hillah near Baghdad, and Ibn Khaldun says, so late as even in his day, devout Shi’ahs would assemble every evening after sunset at this well and entreat the absent Imam to appear again on earth.
In the present day, during the absence of the Imam, the Shi’ahs appeal to the Mujtahidun, or “enlightened doctors of the law,” whose opinion is final on all matters, both temporal and spiritual.
There have been two great schisms in the succession of the Imams, the first upon the death ‘Ali Zainu ‘l-‘Abidin, when part of the sect adhered to, his son Zaid, the founder of the Zaidiyah sect. And the second on the death of as-Sadiq, when his father nominated his second son Musa al-Kazim, as his successor, instead of allowing the Khalifate to go in Isma’il’s family those who adhered to Isma’il’s’ family being called Isma’iliyah. The great body of the Shi’ahs acknowledge Musa-al Kazin and his descendants as the true Imams.
The Ismali’iiyah, like the Tweleans, make profession of a loyal attachment to the cause of ‘Ali. Their schism was occasioned by a dispute regarding the succession to the Imamate on the death of Imam Ja’far Sadiq. Jafar had four sons the eldest of whom was Isma’il. One day, however, Isma’il was seen in a state of inebriety, and his father disinherited him, and appointed his son Musa. The greater number of the Shi’ahs accepted this decision, but a small number, who regarded the drunkenness of the Imam as an evidence that he accepted the hidden meaning and not the legal precepts of Islam (!), remained attached to Isma’il. They say from the time of ‘Ali to the death of Mubammad, the son of lsma’il, the Imams were visible, but from his death commenced the succession of concealed Imams. The fourth of these “concealed” was a certain ‘Abdu ‘llah, who lived about the third century of the Hijrah.
The contentions of the Shi’ahs regarding the succession have become endless, and of the proverbial seventy-three sects of Islam not fewer than thirty-two are assigned to the Shi’ahs, and, according to the sharbu ‘l-Muwaqif, there are as many as seventy-three sects of the Shi’ahs alone.
According to the Sharhu ‘l-Muwaqif, the three principal sects of the- Shi’as are (1) Ghulat, or Zealots, the title generally given to those who, through their excessive zeal for the Imams, have raised them above the degree of human beings. (2) Zaidiyah, those who separated after the appointment of Muhammad Baqir to the Khalifate, and followed Zaid. (3) Imamiyah, or those who acknowledged Ja’far Sadiq as the rightful Imam, to the exclusion of Isma’il, and which appears to be what maybe called the orthodox sect of the Shi’as. Out of these three great divisions have grown innumerable sects, which it would be tedious to define. All Shi’ah religionists are more or less infected with mysticism.
Many of the Shi’ahs have carried their venerations for ‘Ali so far, as to raise him to the position of a divine person, and most of the sects mike their Imams partakers of the divine nature. These views have their foundation in the traditions already quoted, which assert the pre-existence of Muhammad and ‘Ali, and they have undoubtedly been fostered by the gnostic tendencies of all forms of Persian belief, especially Sufiism. [SUFI.]
Since the accession of Isma’il, the first of the Sufi dynasty, A.D. 1499, the Shi’ah faith has been the national religion of Persia. Nadir Shah, when at the summit of his power, attempted to convert the Persians to the Sunni form of Islam, in order to assist his ambitious designs, but, the attempt failed, and the attachment of the Persians to the Shi’ah faith has remained as decided as ever.
Sir Lewis Pelly remarks:-
“Though the personal history of Au and his sons was the exciting cause of the Shiah schism, its predisposing cause lies far deeper in the impassable ethnological gulf which separates the Aryan and Semitic races. Owing to their strongly centralised form of government, the empire of the Sassanides succumbed at once before the onslaught of the Saracens; still, Persia was never really converted to Islam, and when Mohammed, the son of Ali, the son of Abdullah, the son of Abbas, the uncle of the Prophet Mohammed, proclaimed the Imamate as inherent of divine right, in the descendants of the Caliph Ali, the vanquished Persians rose as one man against their Arab conquerors. The sons of Abbas had all espoused the cause of their cousin Ali, against Moawiyah, and when Yezid succeeded to the Caliphate, Abdullah refused to acknowledge him, and retired to Mecca. It was he who tried to dissuade Husain from going to Qufa. His son was Ali, who, by order of the Caliph Walid, was flogged and paraded through the streets of Damascus, mounted on a camel, with his face to it tail, and it was to avenge this insult on his father that Mohammed resolved to overthrow the dynasty of the Ommiades.
The Muslims of the province of Oudh in British India are for the most part Shi’ahs, and there are a few in the region of Tirah, on the frontier of India with the exception of the province of Oudh, the Muslims of India are for the most part Sunnis of the Hanafi sect, but practices peculiar to the Shi’ahs have long prevailed in certain localities. In most parts of India, where the parties are Shi’ahs, the law of this school of jurisprudence is always administered, especially with regard to marriage and inheritances.
It is not correct, as stated by Sale (Introduction to the Koran) and others, that the Shi’ahs reject the Sunnah, or Traditions; for although the Shi’ahs do not receive the “six correct books of the Sunnis,” they acknowledge five collections of their own namely: (1), Al-Kafi, (2) Manlyastahzirahn ‘l-Faqih, (3) Tahzib, (4) Istibsar, (5) Nahju ‘l-Balaghah. [TRADITIONS.] The works written on the traditions are very numerous.
The Shi’ah school of jurisprudence is of earlier date than that of the Sunnis, for Abu Hanifah, the father of the Sunni Code of Muslim law, received his first instructions in jurisprudence from Ja’far as-Sadiq, the sixth Imam of the Shi’ahs; but this learned doctor afterwards separated from his teacher, and established a code of laws of his own.
The differences between the Shi’ahs and the Sunnis are very numerous, but the following are the principal points:-
(1) The discussion as to the office of Imam, already alluded to.
(2) The Shi’ahs have a profound veneration for the Khalifah ‘Ali, and some of their sects regard him as an incarnation of divinity, whilst they all assert that next to the Prophet, ‘Ali is the most perfect and excellent of men.
(3) They still possess Mujtahids, or ” enlightened doctors,” whose opinion is final in Matters of Muslim law and doctrine. The Mujtahid is the highest degree amongst Muslim doctors. The Sunnis say, in the present divided condition of Islam it is impossible to appoint them, but the Shi’ahs still elect them in Persia, and the appointment is confirmed by the king. [MUJTAHID.]
(4) They observe the ceremonies of the Muharram in commemoration of al-Hasan and al-Husain, whilst the Sunnis only observe the tenth day of the Muharram, or the ‘Ashura’, being, they say, the day on which God created Adam. [MUHARRAM.]
(5) They include the Majusi, or fire worshippers, amongst the Ahlu ‘l-Kitab, or people who have received an inspired record from God, whilst the Sunnis only acknowledge the Jews, Christians, and Muslims as such.
(6) They admit the principle of religious compromise called Taqiyah (lit. “Guarding oneself “). A pious fraud, whereby the, Shi’ah Muslim believes he is justified in either smoothing down, or, denying, the peculiarities of his religious belief inorder to save himself from persecution. [TAQIYAH.]
(7) There are also various minor differences in the liturgical ceremonies of the Shi’ahs, which will be found in the account of the liturgical prayers. [PRATER.]
(8) The differences between the civil law of the Shi’ahs and Sunni have been carefully noted in Mr. N. B. E. Baillie’s Introduction to his Digest of the Imameea Code (London, 1869):-
(a) “With regard to the sexes, any connection between them, which is not sanctioned by some relation founded upon contract or upon slavery, is denounced by both the sects as zina’, or fornication. But, according to the Hanafiyahs, the contract must be for the lives of the parties, or the woman be the slave of the man, and it is only to a relation founded on a contract for life that they give the name of nikah, or marriage. According to the Shi’ahs, the contract may be either temporary, or for life, and it is not necessary that the slave should be the actual property of the man; for it is sufficient if the usufruct of her person be temporarily surrendered to him by her owner. To a relation established in any of these ways they give the name of nikah, or marriage, which is thus, according to them, of three kinds, permanent, temporary, and servile. It is only their permanent marriage that admits of any comparison with the marriage of the Hanafiyahs. And hero there is, in the first place, some difference in the words by which the contract is effected. According to the Hanafiyahs, the words may be sarih (express) or kiniyah (ambiguous). According to the Shi’ahs, they must always be express; and to the two express terms of the other sect (nikah and tazwij) they add a third rnut’ah which is rejected by the others as insufficient. [MUT’AH.] Further, while the Hanafiyahs regard the presence of witnesses as essential to a valid contract of marriage, the Shi’ahs do not deem it to be in anywise necessary. The causes of prohibition correspond, to some extent, in both schools; but there Is this difference between them, that the Hanafiyah includes a deffernce of dar, or nationality, among the causes of prohibition, and excludes li’an, or imprecation, from among them; while the Shi’ah excludes the former and includes the latter. There is, also, some difference between them as to the conditions and restrictions under which fosterage becomes a ground of prohibition. And with regard to infidelity, though both schools entirely prohibits any sexual intercourse between a Muslimah or Muslim woman and a man who is not of her own religion, the Hanafi allows of such intercourse, under the sanction of marriage or of slavery, between a Muslim and any woman who is a kitabiyah, that is, who belongs to any sect that is supposed to have a revealed religion, while the Shi’ah restricts such connection to mut’ah, or temporary and servile marriages. Among Kitabiyah both schools include Christians and Jews, , hut the Hanafi rejects Majusis, or fire-worshippers, who are included among them by the Shi’ahs. The Shi’ahs do not appear to make any distinction between invalid and valid marriages, all that are forbidden being apparently void according to them. But the distinction is of little importance to the parties themselves, as under neither of the schools does an unlawful marriage confer any inheritable quality upon the parties; and the rights of the children born of such marriages, are determined by another consideration, which will be adverted to in the proper place thereafter.
(b) With regard to the servile marriage of the Shi’ahs, it is nothing more than the right of sexual intercourse which every master has with his slaves; but there is the same difference between the two sects, in this case, as in that of marriage by contract. According to the Hanafiyahs, the right must be permanent, by the woman’s being the actual property of the man. According to the Shi’ahs, the right may be temporary, as when it is conceded for a limited time by the owner of the slave. When a slave has borne a child to her own master, which he acknowledges, she becomes his umm-ul-walad, or mother of a child, and cannot be sold, while she is entitled to emancipation at her master’s death. According to the Hanafiyahs, these privileges are permanent, but, according to. the Shi’ahs, the exemption horn sale is restricted to the life of her child, and her title to emancipation is at the expense of her child’s share in the master’s estate. It that be insufficient, her enfranchisement is only pro tonto, or so far as the share will go. Where the child’s father has only an usufructuary right in the mother, the child is free, though the mother, being the property of another, does not acquire the rights of an umm-ul-waled.
(c) With regard: to the persona who may be legally slaves, there seems to be little, if any, difference between the two sects. According to the Shi’ahs, slavery is the proper condition of the harabis, or enemies, with the exception only the Christians, Jews, and Majusis, or fire-worhippers, so long as they continue in a state of zimmah, or subjection, to the Musulman community. If they renounce their zimmah, they fall back into the condition of ordinary harabis, and if a person should buy from a harabi his child, or wife, or any of his consanguineous relations, the person so purchased is to be adjudged a slave. There seems also to be but little difference in the manner in which have may be enfranchised, or their bondage qualified. But there is an important difference as to children: for, according to the Hanafiyahs, a child follows the conditions of its mother, being free or a slave, as she is the one or the other; while, according to the Shi’ahs, it is free, if either of its parents be so. Both the sects are agreed that marriage may be dissolved by the husband at any time at his pleasure, and to such dissolution they both give the name of talaq.
(d) But there are some important differences between the repudiation of the two sects. Thus, while the Hanafiyahs recognize two forms, the Sunni and Bida’i, or regular and irregular, as being equally efficacious, and subdivide the regular into two other forms, one of which thev designate as absan, or best and the other as basan, or good, the Shi’ahs reject these distinctions altogether, recognizing only one form of the Suuni, or regular. So also as to the expressions by which repudiation may be constituted; while the Hanafiyahs distinguish between what they call sarih, or express words, which are inflections of the word talaq, and various expressions which they term kinayah, or ambiguous, the Shi’ahs admit the former only. Further, the Hanafiyahs do not require intention when express words are used, so that, though a man is actually compelled to use them, the repudiation is valid according to them. Nor do they require the presence of witnesses as necessary in any case to the validity of a repudiation; while, according to the Shi’ahs, both intention and the presence of two witnesses in all eases are essential. Both sects agree that repudiation may be either ba’in (absolute) or raja’i (revocable), and that a repudiation given three times cannot be revoked, nor a woman so repudiated be again married by her husband until she has been intermediately married to another man, and the marriage with him, has been consummated. But, according to the Hanafiyahs, repudiation may be made irrevocable by an aggravation of the terms, or the addition of a description, and three repudiations may be given in immediate succession, or even unico contextu, in one expression; while, according to the Shi’ahs, on the other hand, the irrevocability of a repudiation is dependent on the state in which the woman may be at the time that it is given, and three repudiations, to have their full effect, must have two Intervening revocations. To the ba’in and raja’i repudiations of both sects, the Shi’ahs add one peculiar to themselves, to which they give the name of the talaq-ul-‘iddah, or repudiation of the iddah, and which has the effect of rendering the repudiated woman for ever unlawful to her husband, so that it is impossible for them ever to marry with each other again. The power of revocation continues until the expiration of the ‘iddah, or probationary period for ascertaining whether a woman is pregnant or not. After it has expired, the repudiation becomes absolute, according to both schools. So long as it is revocable, the parties are still in a manner husband and wife; and if either of them should happen to die, the other has a right of inheritance in the deceased’s estate.
(e) With regard to parentage, maternity is established, according to the Hanafiyahs, by birth alone, without any regard to the connection of the parents being lawful or not. According to the Shi’ahs, it must in all cases be lawful; for a waladu ‘x-zina’, or illegitimate child has no descent, even from its mother, nor are there any mutual rights of inheritance between them. For the establishment of paternity there must have been, at the time of the child’s conception, according to both sects, a legal connection between its parents by marriage or slavery, or a semblance of either. According to the Hanafiyahs, an invalid marriage is sufficient for that purpose, or even, according to the head of the school, one that is positively unlawful; but, according to the Shi’ahs, the marriage must in all cases be lawful, except when there is error on the part of both or either of the parents. Again, as to the children by slaves, express acknowledgment by the father is required by both the sects, except when the slave is his umm ‘l-walad, or has already borne a child to him; for though, according to the Shi’ahs, there are two reports on the subject, yet, by the most generally received of these, a slave does not become the wife of her master by mere coition, and her child is not affiliated to him without his acknowledgment. With regard to children begotten under a semblance of right, the Hanafiyahs require some basis for the semblance in the relation of the parties to each other; while, according to the Shi’ahs, bona fide belief on the part of the man that the woman is his wife or his slave seems to be all that is required; while no relation short of a legal marriage or slavery, without such belief either on the part of the man or the woman would apparently be sufficient.
(f) On the subject of testimony, both schools require that it shall be direct to the point in issue; and they also seem to be agreed that when two or more witnesses concur in asserting a fact in the same terms, the judge is bound by their testimony, and must give his judgment in conformity with it. They agree in requiring that a witness should in general have full knowledge, by the cognizance of his own senses, of the fact to which be is bearing testimony, but both allow him, in certain exceptional cases, to testify on information received from others, or when he is convinced of the fact by inference from circumstances with which it is connected.
(g) Nasab, or descent, is included by both sects among the exceptional facts to which a witness is allowed to testify when they are generally notorious, or when he is credibly informed of them by others. But according to the Hanafiyahs, it is enough if the information be received from two just men, or one just man and two just women, while the Shi’ahs require that it should have been received from a considerable number of persons in succession, without any suspicion of their having got up the story in concert. The Hanafiyahs class marriage among the exceptional facts, together with Nasab’, but, according to the Shi’ahs, it more properly follows the general rule, which requires that the witness should have the direct a evidence of his own senses to the fact to which he is giving his testimony. They seen, however, to admit an exception in its favour; for they reason that, as we adjudge Khadijah to have been the mother of Fatimah, the daughter of the Prophet, though we know it only by general notoriety and traditions, which is but continued hearsay, so also we may equally decide her to have been the Prophet’s wife, for which we have the same evidence, though we were not present at the contract of marriage, nor even heard the Prophet acknowledge it. Both sects are agreed that a witness may lawfully infer and testify that a thing is the property of a particular person when he has seen it in his possession; and so, according to the Hanafiyahs, ‘When a person has seen a man and woman dwelling in the same house, and behaving familiarly with each other in the manner of married persona, it is lawful for him to testify that she is his wife, in the same way as when he has seen a specific thing, in the hands of another.’ The Shi’ahs do not apply this principle of inference to the case of marriage, and there is no ground for saying that, according to them, marriage will be presumed in a case of proved continual cohabitation.
(h) There is difference between the two schools as to the person who is entitled to claim a right of shuf’ah, or pre-emption. According to the Hanafiyahs, the right may be claimed, firstly, by a partner in the thing itself; secondly, by a partner in its rights of water and way; and thirdly, by a neighbour. According to the Shi’ahs, the right belongs only to the first of these, with some slight exception in favour of the second. The claim of the third they reject altogether. In gift the principal difference between, the schools is, that a gift of an undivided share of a thing, which is rejected by the Hanafiyah is quite lawful according to the Shi’ahs.
(i) In appropriation and, alms there do not seem to be any differences of importance between the two schools. And in wills the leading difference seems to be that, while according to the Hanafiyahs, a bequest in favour of an heir is positively illegal, it is quite unobjectionable according to the Shi’ahs.
(j) In respect of inheritance, there are many and important differences between the two sects but they admit of being reduced to a few leading principles, which is now proceed to notice, following the order in which the different branches of the subject are treated of in this volume. The impediments to inheritance are four in number according to the Hanafiyahs, viz. slavery, homicide, difference of religion, and. difference of dar, or country. Of these the Shi’ahs recognize the first : the second also with some modification, that is, they require that the homicide be intentional, in other words, murder, while with the Hanafiyahs it operates equally as an impediment to inheritance; though accidental. For difference of religion the Shi’ahs substitute infidelity, and difference of country they reject entirely. Exclusion from the whole inheritance, according to the Hanafiyahs, is founded upon and regulated by two principles. The one is that a person who is related to the deceased through another has no interest in the succession during the life of that other, with the exception of half-brothers and sisters by the mother, who are not excluded by her. The other principle is that the nearer relative excludes the more remote. The former of these principles is not expressly mentioned by the Shi’ahs, but it is included without the exception in the second, which is adopted by them, and extended, so as to postpone a more remote residuary to a nearer sharer — an effect which is not even to it by the Hanafiyahs.
Based on Hughes, Dictionary of Islam
© 2024 All Rights Reserved