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mujtahid who is the general proxy of the Imam.
Judgement is in fact the identification of the legal
nature of points under dispute, whether they pertain to
defense and accusation in a court, or to matters such as
the sighting of the moon and the determination of the
beginning of the month, or the administration of
endowments and the determination of lineage, and it
demands great wisdom and intellectual ability. In fact it
is more difficult a task than issuing a
"fatwa".
Now, if somebody who is devoid of these qualities
undertakes to perform this duty, it will certainly do
more harm than good. Accordingly, it is unlawful in
Imamiyah "fiqh" for anyone except a just
mujtahid to undertake to perform this work. Indeed, it is
regarded as one of the major sins if anyone else does do
it, and the extent of its enormity borders on infidelity.
Our respected teachers used to be very cautious about
passing judgements. We also follow the same line.
Judgment can only be passed on the basis of three
things: (1)confession (iqrar), (2)an oath (qasm), or (3)
two just witnesses (bayyinah). The question of how to
establish preference or priority in cases where there may
be difference or contradiction between the witnesses is a
matter for the section of fiqh which deals with the
giving of evidence, and there is little point in going
into the details here suffice it to say that the matter
has been examined in great detail by our jurists and they
have left many writings on it. We, also, have written a
book on the subject called "Tahriru
'l-majallah".
One who does not act in accordance with the order of
the authorized "qadi" (i.e. one who fulfills
all the conditions of a "qadi"), will be
considered to have violated the divine commands. Also no
one has the right to revise the decision of a
"qadi". Of course, the qadihimself may
re-examine his judgment.
12. Slaughtering and Hunting
The basic principle in Shi'ah jurisprudence concerning
animals whose blood spurts 4 is that they become
"najis" (impure) when they die, and that it is
unlawful (haram) to eat their flesh.
There is also a division of animals into two
categories: those which are impure (najis) in essence and
cannot become pure, such as the dog and the pig, and
cannot therefore on no account be eaten; and those which
become essentially impure if they die in any way other
than as a result of hunting or slaughtering in accordance
with the shari'ah, but which become pure if they are
correctly hunted or slaughtered in accordance with the
rules laid out below.However, the mean of correctly killed animals of the
second category can only be eaten provided they are not
carnivorous.
There are two ways of killing animals in accordance
with the shari'ah. The first is hunting.
Hunting may be in two ways. Firstly by a trained hound
who obeys the orders given it and does not normally eat
the animal it has killed. For his prey to be lawful, the
person who released and sends the hound must be a Muslim
and must pronounce "bismillah" when releasing
it, and the hound should at no time leave his sight.
Secondly, hunting may be by means of a weapon, i.e. a
sharp sword, spear or arrow, or the bullet of a gun. In
all cases, the death must be directly due to the
penetration of the weapon into the animal, and not to
some side effect such as fright. The person who uses the
weapon must be a Muslim and he must pronounce
"bismillah" at the time of taking aim.
If the animal is killed by either of the above
methods, its flesh is lawful. But if the hunter gets his
animal when it is still alive, he must slaughter it (see
below). All other means of hunting (i.e. trap, net, etc.)
are forbidden, unless, of course, the animal is taken
alive and correctly slaughtered.
The second way to lawfully kill an animal is by
slaughtering it (dhabih). The slaughterer must be a
Muslim or someone under the rules of Islam such as the
minor son of a Muslim. The second condition is that the
instrument of slaughtering should be made of sharp metal.
However, in case of necessity, any sharp implement
(glass, sharp stone, etc.) which cuts the arteries
clearly may be used. In the Name of God (bismillah) must
be pronounced when the intention to slaughter is amde,
and the animal must be lying with its face towards the
"qiblah". All four main blood vessels of the
neck must be completely severed above the vocal chords.
(There is a special method of killing a camel called
"nahr", which may also be used for other
animals when "dhabih" is not possible.
It should be noted finally that all namilas whose
blood does not spurt are unlawful (haram) except fish
which have scales. A hadith of Muhammad ibn Nu'man Ahwal,
Mu'min at-Taq, says, "One day I went in to see Abu
Hanifah. I saw there was a pile of books in front of him.
Abu Hanifah said, 'Do you see all these books?' I said,
Yes.' He said, 'They are all to do with divorce.' I said,
God has made us free from all your books by one single
verse of the Quran, "Oh Prophet, (say to the
believers), 'When you divorce (your) women, divorce at
their prescribed period, and reckon the 'iddah
(exactly).' "He said, 'Well then, have you ever
asked your friend Ja'far ibn Muhammad (al-Imam as-Sadiq
(a.s.)) about the seacow?' I said, 'Yes, he said that
every sea-animal with scales, even if it be a 'sea-)
camel or a (sea-) cow, can be eaten, and that if it has
no scales it is unlawful to eat.'" 5
13. The Nature of Foodstuffs
Animals: There are three kinds of animals - animals of
the land, animals of the sea and animals of the air.
It has just been pointed out that, in general, the
only animals of the sea which are lawful are those which
have scales. The eggs of such fish are also lawful.
Of land animals, only a few species can be lawful the
camel, the cow, the sheep or goat, the wild cow or
buffalo, the mountain sheep or goat, the gazelle, the
deer. The meat of horses, mules and donkeys is not
approved of (makruh). Animals which eat najis substances,
such as excrement, become haram, but they can be purified
by "istibra"' (keeping itaway from najis
eatables for a specific period).
All kinds of carnivourous animals are unlawful.
Rabbits, foxes, badgers and mongooses are all unlawful.
Insects, reptiles and amphibians like worms, snails,
cockroaches, scorpions, wasps, bees, snakes, frogs etc.
are all forbidden; only the locust can be eaten.
Among birds, those which feed on flesh such as hawks
and eagles, are completely forbidden. Apart from this,
the Prophet (s.a.w.) prescribed three signs in three
conditions for the indentification of lawful birds:
1) if the birds are in the air, the pause in the
movement of their wings, i.e. their gliding, should be
less than their flapping;
2) if they are on the ground, the spurs on their claws
should be visible;
3) when the bird is slaughtered, it must be found to
have a crop and/or a gizzard.
Bats and peacocks are forbidden. The kind of crow
which eats herbage is lawful, but the kind which eats
carrion is forbidden.
Besides animals, there are other things which are for
bidden to eat or drink. They can be classed under four
headings:
1) everything which is impure (najis) is unlawful
(haram);
2) every kind of food (eatable or drinkable) which has
been taken illegally is haram.
3)every kind of food (eatable or drinkable) which has
deleterious effects is haram.
4)every kind of food (eatable or drinkable) which
seems repulsive is haram.
Of liquids, one of the most impure is urine, but even
more than that is wine (any kind of alcoholic beverage),
and in Imamiyah fiqh, the unlawfulness and impurity of
wine is more strongly emphasized than in any other
school. The traditions that have come down to us from our
Imams on this subject are enough to frighten one off them
forever. Distillers and fermenters of alcoholic drinks,
stockists, merchants and drinkers, all are cursed, and
wine has been called in fiqh "ummu
'l-khaba'ith" (the mother of all evils). Some
traditions say it is forbidden to sit at a table on which
alcoholic drinks have been laid, probably so as to
encourage people to abstain therefrom so that their bad
effects may be limited.
Today, expert scientists have confirmed by chemical
tests that wine is a very destructive and harmful thing.
Islam warned against alcohol thirteen hundred years ago.
Today, even those who do not abstain for religious
reasons do so for reasons of health. The shari'ah of
Muhammad (s.a.w.) cannot be over praised, those who
neglect it do so to their own disadvantage and peril.
14. Penology (hudud)
Under an Islamic government, certain punishments are
prescribed for certain crimes, so that the society may be
kept healthy and the roots of corruption destroyed. Some
of these penalties (hudud) are as follows according to
Shi'ah fiqh.
1)The penalties for adultery (zina): If an adult, sane
man knowingly and deliberately has sexual intercourse
with a woman who is forbidden to him, it is then an
obligation on the authorized judge to flog him with a
hundred lashes; his head will be shaved and he will be
forced to leave the city for a period of one year. If he
is "muhsin", i.e. he is in a position to
satisfy his sexual urges in conformity with the shari'ah,
he will be stoned to death as well as being given a
hundred lashes. If the woman consented, she shall, if
also "muhsinah", be stoned, and if otherwise,
she shall be given a hundred lashes. If a man has sexual
intercourse with a forbidden woman of his relatives
(mahrum), or with a woman who has suckled at the same
breast as he was (his rida'ih), or with his step mother,
or if a dhimmah (a non-Muslim under the protection of a
Muslim state) has sexual intercourse with a Muslim woman,
he shall be beheaded; and the penalty is the same for
rape.
The adultery can only be proven by:
1) a confession repeated four times;2) the witnessing of four just men that they saw him
actually in the act of penetration;3) the witnessing of three just men and two just women.
If the adultery is witnessed by two just men and four
just women, it shall be deemed proven but the penalty may
only be flogging, their being no capital penalty. If the
evidence is less than this, it is not considered
complete, and, what is more, if less than four men give
evidence, they shall be punished for slander (qadhaf).
For the evidence to be accepted there must be unanimity
between the witnesses, and they must all have seen the
actual penetration with their own eyes.
If a man is to be stoned after a confession, but then
disavows his confession, he shall not be stoned; and if,
after confession, he repents of his deed, the qadi may
exercise his discretion. If he repents when four
witnesses have seen his act, there will be no alteration
in the penalty.
If a person is being punished for the third time for
the same offence (adultery), he shall be beheaded. A
pregnant Woman or a sick person must not receive his or
her punishment until the baby is born or the sickness
goes away, respectively .
2) The penalties for homosexual acts : The punishment
for sodomy between two males (liwat) is more severe than
that for any other crime. It is the only case in which
the offender may be burnt to death. The qadi may sentence
the active partner in the act to one of four penalties:
beheading, stoning to death, being thrown from a height
so that his bones are all broken up, burning to death.
The passive partner, if he is adult and responsible for
his actions, is to be beheaded. If he is not yet of the
age of puberty, he will be given a reduced punishment
(ta'zir). The same conditions of proof hold here as in
adultery.
In the female homosexual act (sihaq), both offenders
will be given a hundred lashes. If they are married, it
is not impossible for them to be stoned to death.
3) The penalty for the procurer: the procurer (qawwad)
who arranges for an unlawful sexual act to take place,
will be given seventy lashes, his head will be shaved,
and he will be expelled from the city. The proof for this
is met by the evidence of two just melt or by a
confession made twice.
4) The penalty for false witnessing and slander. if
someone falsely accuses a sane, adult and free Muslim of
a crime for which some sentence can be inflicted, for
instance, adultery, sodomy or drinking wine, then the
false accuser shall be punished with eighty lashes. In
case of the proof being admissible on confirmation by the
accused person, the sentence against the accuser shall
become void. The crime shall be considered proved as long
as there is "bayyinah)) (see above).
It is also a punishable offence for a person to call
someone else with some undesirable epithet which he does
not deserve, e.g. "sinner",
"corrupter", "leper", etc. If someone
claims to be a prophet, or curses or declares enmity with
one of the fourteen pure ones (the Prophet (s.a.w.), the
twelve Imams (a.s.) and Hadrat Fatima), he shall be
beheaded.
5) The penalty for the drunkard: the penalty for any
one who avails himself of any intoxicating beverage of
any kind is eighty lashes, to be given on his or her bare
neck and arms.
If someone has been punished for three times and he
commits the crime a fourth time, he or she shall be
beheaded. One who considers wine lawful is liable to the
same punishment.
If the dealer in wine repents and leaves his
profession, it is well and good, otherwise he too shall
be liable to beheading.
6) The penalties for theft: if an adult and sane
person steals something from a "safe" place
(i.e. somewhere which is locked or firmly closed, or
someplace similar) which is valued at more than a quarter
of a mithqal (about 1 gm - a mithqal is a little over 4.5
grams 0) of pure gold, he will have the four fingers of
his right hand cut after duly being sentenced by a qadi
on the evidence of double confession or
"bayyinah" (see above). If he commits the crime
a second time, his leg will be cut off under the knee.
For the third offence, he shall be sentenced to life
imprisonment. And, if he commits theft in prison, he
shall be beheaded. If he has committed theft a number of
times before he is subjected to the prescribed
punishment, only one penalty shall be inflicted upon him.
For children and insance people, there is no hadd only
ta'zir (a lenient punishment). The thief must invariably
have to pay compensation, and for this, one
acknowledgement, or the evidence and oath of one just
witness is sufficient.
The "hands" of the father shall not be cut
off for stealing the property of the son. But, if,
conversely, the son steals, his "hands" shall
be cut off
7) The penalty for causing fear and terror (muharib):
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