A Dictionary of Islam / Being a cyclopedia of the doctrines, rites, ceremonies, and customs, together with the technical and theological terms, of the Muhammadan religion.

by Thomas Patrick Hughes

(8) The differences between the civil law of the Shīʿahs and Sunnī 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 zināʾ, or fornication. But, according to the Ḥanafīyahs, 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 nikāḥ, or marriage. According to the Shīʿahs, 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 nikāḥ, 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 Ḥanafīyahs. And here there is, in the first place, some difference in the words by which the contract is effected. According to the Ḥanafīyahs, the words may be ṣarīḥ (express) or kināyah (ambiguous). According to the Shīʿahs, they must always be express; and to the two express terms of the other sect (nikāḥ and tazwīj) they add a third mutʿah, which is rejected by the others as insufficient. [[MUTʿAH].] Further, while the Ḥanafīyahs regard the presence of witnesses as essential to a valid contract of marriage, the Shīʿahs 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 Ḥanafīyah includes a difference of dār, or nationality, among the causes of prohibition, and excludes liʿān, or imprecation, from among them; while the Shīʿah 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 prohibit any sexual intercourse between a Muslimah or Musalman woman and a man who is not of her own religion, the Ḥanafī allows of such intercourse, under the sanction of marriage or of slavery, between a Muslim and any woman who is a kitābīyah, that is, who belongs to any sect that is supposed to have a revealed religion, while the Shīʿah restricts such connection to mutʿah, or temporary and servile marriages. Among Kitābīyah both schools include Christians and Jews, but the Ḥanafī rejects Majūsīs, or fire-worshippers, who are included among them by the Shīʿahs. The Shīʿahs 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 hereafter.

“(b) With regard to the servile marriage of the Shīʿahs, 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 Ḥanafīyahs, the right must be permanent, by the woman’s being the actual property of the man. According to the Shīʿahs, 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 Ḥanafīyahs, these privileges are permanent, but, according to the Shīʿahs, the exemption from 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. If that be insufficient, her enfranchisement is only pro tanto, 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-walad.

“(c) With regard to the persons who may be legally slaves, there seems to be little, if any, difference between the two sects. According to the Shīʿahs, slavery is the proper condition of the ḥarabīs, or enemies, with the exception only of Christians, Jews, and Majūsīs, or fire-worshippers, so long as they continue in a state of ẕimmah, or subjection, to the Mussulman community. If they renounce their ẕimmah, they fall back into the condition of ordinary ḥarabīs, and if a person should buy from a ḥarabī 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 slaves may be enfranchised, or their bondage qualified. But there is an important difference as to children; for, according to the Ḥanafīyahs, 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 Shīʿahs, 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 dissolutions they both give the name of t̤alāq.

“(d) But there are some important differences between the repudiation of the two sects. Thus, while the Ḥanafīyahs recognize two forms, the Sunnī and Bidaʿī, or regular and irregular, as being equally efficacious, and subdivide the regular into two other forms, one of which they designate as aḥsan, or best, and the other as ḥasan, or good, the Shīʿahs reject these distinctions altogether, recognizing only one form of the Sunnī, or regular. So also as to the expressions by which repudiation may be constituted; while the Ḥanafīyahs distinguish between what they call ṣarīḥ, or express words, which are inflections of the word t̤alāq, and various expressions which they term kināyah, or ambiguous, the Shīʿahs admit the former only. Further, the Ḥanafīyahs 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 Shīʿahs, both intention and the presence of two witnesses in all cases are essential. Both sects agree that repudiation may be either bāʾin (absolute) or rajaʿī (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 Ḥanafīyahs, 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 Shīʿahs, 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 bāʾin and rajaʿī repudiations of both sects, the Shīʿahs add one peculiar to themselves, to which they give the name of the t̤alāq-uʾl-ʿiddah, or repudiation of the ʿiddah, 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 ʿiddah, 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 Ḥanafīyahs, by birth alone, without any regard to the connection of the parents being lawful or not. According to the Shīʿahs, it must in all cases be lawful; for a waladu ʾz-zināʾ, 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 Ḥanafīyahs, 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 Shīʿahs, 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 ummu ʾl-walad, or has already borne a child to him; for though, according to the Shīʿahs, 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 Ḥanafīyahs require some basis for the semblance in the relation of the parties to each other; while, according to the Shīʿahs, bonâ 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 he 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 Ḥanafīyahs, it is enough if the information be received from two just men, or one just man and two just women; while the Shīʿahs 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 Ḥanafīyahs class marriage among the exceptional facts, together with Nasab; but, according to the Shīʿahs, it more properly follows the general rule, which requires that the witness should have the direct evidence of his own senses to the fact to which he is giving his testimony. They seem, however, to admit an exception in its favour; for they reason that as we adjudge K͟hadījah to have been the mother of Fāt̤imah, the daughter of the Prophet, though we know it only by general notoriety and tradition, 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 Ḥanafīyahs, ‘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 persons, 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 Shīʿahs 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 shufʿah, or pre-emption. According to the Ḥanafīyahs, 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 Shīʿahs, 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 Ḥanafīyah, is quite lawful according to the Shīʿahs.

“(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 Ḥanafīyahs, a bequest in favour of an heir is positively illegal, it is quite unobjectionable according to the Shīʿahs.