For those unaware, my colleague Jessie Allen has a wonderful blog in which she attempts to systematically go through Blackstone’s commentaries, and provide her own thoughts on it as she does so. Inspired by the initiative, I thought I’d attempt one of my own, though far more ambitious, almost surely inappropriately so. Specifically,
By far the most important modern work on the substance of Shi’i law as it is manifested in contemporary juristic compendia is Jawahir al Kalam fi Sharh Shara’i al-Islam. It was authored by one of the premier jurists of the nineteenth century, Muhammad Hasan al-Najafi, commonly referred to by the honorific Sahib al-Jawahir, or the Companion of the Jawahir. The Jawahir methodically and systematically examines, identifies revelatory source material for, and comments upon, the work that constitutes the premier source of Shi’i legal rules across the ages–a thirteenth century (C.E.) medieval text known as Shara’i al-Islam, of Muhaqqiq al Hilli. In 43 volumes of several hundred pages each, Al-Hilli’s original text appears in quotation marks throughout the text of the Jawahir (which I replace with italics when I translate), interspersed with commentary and source material, the latter of which is invariably far more extensive than the original source upon which it is commenting.
It is difficult to overstate the influence of the Jawahir on modern Shi’i thought. In its categorization of rules, its phrasing of their certainty or doubt, and its substance, it is the work out of which the most significant jurists of our era, from Ruhollah Khomeini to Ali Sistani, develop their own rules. If you want to understand what the modern Shi’i rules are, and where they come from, the inquiry often begins and ends with the Jawahir. Obviously it is not Revelation, which means that later jurists can (and as we shall see, do) depart from its rules at times. It is nonetheless extremely authoritative, so much so that when modern jurists disagree with its conclusions, they often do not refer to that disagreement directly, but merely offer a different rule without explaining any basis for a distinction.
My aim, over the course of years, is to work through the text in its entirety and offer my own comments upon it through regular posts, in an effort to shed light on what modern Shi’i law is, and where it comes from.
If I was being as systematic as my colleague Professor Allen as concerns Blackstone, I’d probably begin at the beginning, which is volume 1. But I am not going to do that, and anyone even faintly familiar with modern Shi’i texts must surely know why. Volume 1 of any modern Shi’i compendium developed by any jurist of any standing follows the Jawahir’s precedent in organizing the rules, and the Jawahir follows Hilli’s 13th century Shara’i in this respect. All therefore start with the Book on Tahara. What is that, you ask? To quote the original Shara’i
The name for ritual cleansing (wudu’), washing (ghusl), and ritual cleansing without water (tayammum) that has the effect of rendering prayer permissible.
Pardon my irreverence, but it is difficult to overstate how tiresome some of those rules can be. So I shall begin near the end, or specifically the middle of volume 41, and then move through straight to the end of the work. I will therefore start with the very start of the Book of the Scriptural and Discretionary Crimes, and then move onwards to the Book of Retaliation, and wrap up with the Book on Blood Money. I can then do the balance of Volume 41, which is the Book of Testimony, which runs from page 1 of that Volume through page 253. From there, I can figure out where to go next.
And so, let us begin:
Volume 41, pages 254-58 introduce what precisely the Scriptural Crimes (literally the Limits (hadd, pl. hudud)) and the Discretionary Crimes (ta’zir) happen to be. It begins with a description of the difference between them, as follows:
The combination of the hadd and the ta’zir , which are linguistically, in the Masalik and other sources, prohibition and discipline. Indeed in it [is written] “within it is the religious Limit, because it is a method to prevent people from disobedience, out of fear of its occurring. Religiously it is a specific punishment which concerns pain to the body by virtue of a competent person caught flagrante delcito for which the Legislator specified a punishment in all its particulars, [as opposed to] a punishment or reprimand for which there is no specified punishment usually.” It is similar in the Tanqih and the Riyadh, except no mention is made of the Limitation “usually” at the end, so that it returns to the words of the Compiler [i.e. Muhaqqiq al Hilli, whose work is the subject of the commentary]. All for that which there is a specified punishment is a hadd, and what does not [have a specified punishment] is ta’zir.
The “usually” is striking, and humbly I suggest, perhaps not as internalized as it should be among students of Islamic law. The classical academic accounts of Islamic law will almost invariably indicate that the hudud are the Scriptural Crimes set by God, and that they are unwaivable, as opposed to the discretionary ones. Those have no set punishment for them, and are executed at the discretion of the ruler, or the Imam in Shi’i jurisprudence. So starts the Jawahir, except that the funny word “usually” comes in, one not inserted by the Compiler Muhaqqiq himself I might add, but rather considered ab initio by Sahib al Jawahir himself given all the post Muhaqqiq al-Hilli commentary which either includes the word, or does not, without much explanation. This is a rather striking insertion–the word usually–and, as a result, and in stark contrast to far too much of what passes for theology in many seminaries today, Sahib al Jawahir is not anything if not intellectually curious. He emphasizes the “usually” because he wants to explain it.
But there are opinions setting some of the particulars [of discretionary crimes] for five things. The first, the discretionary crime of intercourse with a wife during the day in Ramadan is set at 25 lashes. Second, whoever marries a slave girl without [his free wife’s] permission when he has a free wife, and penetrates her, he is whipped twelve times, one eighth and a half that of the fornicator. Third, two men under a blanket naked the amount is between thirty and ninety nine lashes. Fourth, whoever breaks the hymen of a virgin with his finger, the Shaikh [Tusi] says thirty to seventy seven lashes. The Mufid says from thirty to eighty and ibn Idris, from thirty to ninety nine. Fifth, a man and a woman under one blanket naked are punished from 10 to ninety nine lashes.
There’s a lot to talk about there, in particular the idea that a man with a free wife cannot marry a slave polygamously. He can have sex with his own slave, and he can divorce his free wife and marry a slave, but he cannot marry a slave polygamously while he has a free wife, unless she agrees. But we’ll get to that, it comes later in the Book in more detail. The issue here of course is that what precisely is the difference between a hadd and a ta’zir if some of the ta’zir appear to have set punishments as well? Again, what do the exceptions mean about the nature and purpose of the categories themselves?
The Jawahir distinguishes the final three from the quoted passage above, suggesting they don’t count because there is a range of punishments and so the punishment is not set in all its particulars. This actually can be challenged, because homosexuality is very much a hadd within Shi’ism, and it is not set in its particulars either, with jurists commenting widely on different punishments, a matter we shall come to later. In any event, that justification will not work for the first two of the discretionary crimes listed above, which are definitely set in amount. Here’s what we get as explanation:
Whoever names the alleged amount ta’zir despite its being set is encompassing within the revelatory text the given name of ta’zir for it. And for some, after it was delivered, it prohibits choice which makes it equivalent to a hadd, and so some cause it to fall within hadd. And the matter is simple.
Formally, of course, Sahib al-Jawahir is telling us that these are sometimes called ta’zir because that’s what the Revelatory text (almost surely a statement, or khabar, from an Imam) calls them, though some refuse to call it that because of the restriction on any discretion in the administration of the punishment. But with that last fascinating line, “the matter is simple”, one can almost hear the voice of the Realist. Who cares, he seems to be saying, if some call it discretionary because that word was somehow attached to the source text on which they rely, and some call it hadd because it is a set punishment. Call it spaghetti if you want to. Have sex with your wife in the day during Ramadan, you get 25 lashes. “The matter is simple.” The rest is just taxonomy.
And he seems to want to believe that, but he can’t fully accept it. It runs against too many core theological and philosophical presumptions to do so. As such, the Realist impression he gives of simplicity is quickly dispelled, as he continues to travel on this intellectual journey to explain how the commentators differ on what is hadd and what is ta’zir. He starts, as always, with the words of Muhaqqiq al-Hilli, upon whose text this is commentary, who says there are six scriptural crimes: fornication, its subsidiaries (gay sex will fall here, if you want to know more about that now, it’s here), unfounded accusation of fornication, drinking alcohol, theft, and cutting off the road. Within the ta’zir he lists four: rebellion, apostasy, bestiality, and committing other sinful acts.
Then, he continues with an earlier commentary on Muhaqqiq that takes the strictest view:
In the Masalik, “the punishment for the rebel–the one who makes war (muharib) and he who within this meaning is the apostate–is a discretionary crime not widely known as such and known among the jurists by the name of Scriptural Crime. Nor is this contradicted because the Scriptural Crime is quantified [in level of punishment], because a killing is also quantified with the extinguishing of a soul either absolutely or in a specific fashion. He divided the committing of the sinful acts in into three parts, noting that the first three are set forth in their particulars from the Lawgiver. The fourth is included as a generalization. This renders the cause of ta’zir a single matter, which is the committing of a sinful act for which the Lawgiver does not attribute a particular Scriptural Crime.”
First, because we have already mentioned the work once, and we will surely mention it many times hence, the Masalik refers to Masalik al-Afham, which is one of the most notable commentaries on Muhaqqiq’s Shara’i in the late medieval period (middle of the 15th century, C.E.), at a time when Shi’ism as a school really began to reach full maturity. The compiler was known as the Second Martyr, Zayn al-Din al-Amili. (As an aside, the next Iraqi that tells me that I am mistaken, and in fact the Second Martyr is Moqtada al-Sadr’s father, is going to get a kick in their ass from me. In all seriousness, it’s rather sad and telling of our own intellectual decay when one of the great Shi’i minds in history is so forgotten as to be confused with let me be charitable and say a far less intellectually significant figure in the grand scheme of things.)
Second, note the rather close association of the muharib, or the one who makes war, with the apostate. Sahib al-Jawahir and his successors tend to regard this as meaning to renounce faith is to make war on God and the Prophet and, derivatively, Islamic society. One might legitimately ask, as many liberals have, if instead the association suggests the opposite; namely, that the source material should be understood to punish apostasy only when it takes the form of war against the Prophet and his followers, rather than a mere renunciation of faith on the basis of an act of private conscience.
In any event, we have the Second Martyr’s view, which is that you can’t just go around calling everything a hadd just because it has a specified punishment, or you’d have to call murder a hadd, because the punishment is specified, and yet nobody does that It falls into the category of qisas, which operates on a principle of retribution through retaliation of equivalence. What is hadd is that which the Lawgiver calls hadd, and nothing else. Strict construction on the point, as it were.
We are then treated to other, slightly more expansive, views. The Lam’a Damashqiyya of Muhammad bin Maki al-Juzayni al-Amili, the First Martyr (i.e. the First Martyr is not Muhammad Baqir al-Sadr!) renders both apostasy and making war into Scriptural Crimes, for example, which obviously is not the position of the Masalik.
The next passage quotes the famous Shi’i compilation Al-Kashif Al-Litham from the 18th century (CE) Baha al-Din al-Asfahani who offers the broadest view among the commentators:
The hadd is in essence prohibition, and from it is [the word] iron, for its rigidity and capacity to constrain. It is said to the doorman, iron [i.e. bolt] the door to restrain the people. It is used in the shari’a for specific matters to prevent the people from a given disobedience. . . .. [The Fifth Imam] said a hadd [punishment] that is carried out on earth is more nourishing than forty days and nights of rain. And from Abi Ibrahim . . . on the Word of God “and He gives life to the earth after its death“[Qur’an 30:19], he commented “he does not bring it back to life, but God sends a man, and they bring life to justice, and the earth is brought back to life with justice being brought to life, and to carry out the hadd [punishment] is more beneficial to the earth than the rain of forty mornings.
And so the broadest position is that of the purposivist. Asfahani is not interested in whether or not the source text calls it a hadd or not, because he finds that too limiting. Rather, the point is to identify those things which are particular points of disobedience which God seeks to limit, with quite literally an iron fist (okay not literal fist, but literal iron). For the hadd when carried out nourish the earth, and so any punishment that God sets for any given disobedience is hadd, and must be carried out, and when it is, then God gives life to the earth after its death. It’s not so much what it’s called, it’s whether or not it falls within the spirit of the term in light of this context.
This would harmonize, incidentally with the broad Shi’i treatment of gay sex of all sorts, male and female, as hadd, a position none of the Sunni schools take with respect to lesbianism in particular. The punishment is not set in many cases, but different options are available, precisely as is the ta’zir for breaking a virgin’s hymen, set forth above. However, the Shi’i jurists all agree, it’s hadd. Why, when Sahib al-Jawahir told us unless it’s absolutely set, it cannot be hadd? Because, in their view (not mine! not mine!) it is precisely the type of abomination, the punishment for which will nourish the earth for forty days. Break the hymen of a virgin with your finger? Bad, but a different level of sin entirely.
Now what is interesting is that this has gone on for pages, after a passage, relayed above, where he more or less regarded it as a rather simple dispute. After all, the punishment is whatever it is, whether you call the infraction that brought it about hadd or ta’zir. But of course with this last passage from Asfahani, it becomes harder to be the Realist because he’s brought in a particular moral characteristic. The one who commits a hadd engages in a particularly egregious form of disobedience. Those who carry out the punishment against him nourish the earth for more than forty days. It’s important, perhaps not to Holmes’ Bad Man, but plainly to a pious jurist for whom earthly characteristics cannot possibly be the only consideration for the content of the law.
So even if what divides the jurists is a simple enough question, its resolution is hardly irrelevant. Which is why Sahib al-Jawahir feels the need to insert himself into this “simple” dispute and offer a tortured and ambiguous justification for the more textual position:
I said, there is no discussion that the referenced quantified punishments are hudud, but the discussion is whether to classify those matters for which there is no set punishment in the shari’a under the name hadd which is the term given to them in many rulings, such as the prevention of the hadd through doubt, the prohibition against oath taking in a hadd, the lack of bail for a hadd, the right of the Imam to forgive the hadd proven by confession and without evidence, the lack of intercession for a hadd, and other matters not classified. It is set out potentially for all punishments in many provisions, such as “God establishes for every thing a hadd, and what exceeds the hadd is a hadd.” It may also be that [such matters] are not encompassed [by the term hadd] . . . given the use of the term hadd customarily to mean “Limit” and also on the basis of reports. Among them Himad bin Uthman, “I said to him, ‘How many [lashes are] the ta’zir?’ He said, ‘less than the hadd‘. I said ‘less than 80?’, he said ‘no.’ I said ‘less than 40, which is the hadd for the slave?’ He said ‘no’. I said ‘how many then?’ So he said ‘in the amount that the person in charge sees best, based on the sin of the man and the strength of his body.'” And the report of Mu’awiyah bin ‘Ammar, “I said to Aba Abdillah [the Third Imam] ‘two women who sleep in the same garment?’ He said, ‘they are beaten.’ I said, ‘a hadd?’, he said ‘no’. I said, ‘two men who sleep in the same garment?’ He said, ‘they are beaten.’ I said, ‘a hadd?’ He said, ‘no.'” And there are other reports which indicate a distinction between the ta’zir and the hadd in understanding. Indeed there is candor in this, and the use of hadd on that which is also encompassed by ta’zir is not denied.
For brevity, in the contradictory rulings in their origins and their generalities the hadd is the more specific term without a broadening. However, to understand it from its [broader] spirit or otherwise is not without a sound basis. . . and God knows best.
I find this fascinating. He more or less himself cannot decide either what the hadd is, nor can he even fully justify why it does. He seems to vacillate on both of these questions, declaring the dispute simple, and then unable to actually take a side in an unambiguous fashion. He wants a clear category, and a pretty bright line, but then he can’t get it and also articulate the very purpose of it. If he goes to far too purpose, he risks masking any line at all. If he goes too far to the line, he excludes crimes for which the punishment must be carried out because of the nature of the transgression against God’s Will.
And, beyond that, Sahib al-Jawahir is left to say that which every jurist says whenever confronted with a question on Islamic law on which there is no certainty. “And God knows best.”
And away we go. Fornication, the first hadd, among the most unambiguous, will be the subject of the next post, whenever I get to it.