Jurisprudence

Adopted from the Book : "Temporary Marriage in Islamic Laws" by : "Sachiko Murata"

The Shi'i Juridical Argument

The Shi'is have always considered mut'a to be of special importance and have tried to keep it alive as an institution of Islamic society. Shi'i law is often referred to as the 'Ja'fari school of law', since in reality the sixth Imam, Ja'far al-Sadiq, is its founder. Hence it is appropriate to quote a few of his many sayings concerning mut'a, such as: ' Mut'a was approved by the text of the Qur'an and became part of the sunna of the Prophet,'1 Imam Ja'far considered the Qur'anic verse referred to above (4:24) the basis for mut'a, He said: 'The verse proves mut'a's permissibility.'2

Once Abu Hanlfa, the founder of one of the four Sunni schools of law and a student of the Imam Ja'far, asked the Imam about mut'a, He replied: 'Which of the two mut'as do you mean?' Abu Hanifa answered: 'I have already asked you about the mut'a of the hajj, So tell me about the mut'a of marriage.' The Imam said, 'Glory be to God! Have you not read the Qur'an? "So those of them whom you enjoy, give to them their appointed wages" (4:24).'3

Someone asked the Imam Ja'far: 'Why is it that four witnesses are necessary [for proof to be established] in cases of adultery, but two are sufficient in the case of murder?' He replied: 'God made mut'a permissible for you, but He knew that you would not approve of it. So He made the witnesses to number four as a protection for you. If it were not for that, it would be brought against you [that you are committing fornication, whereas you are in fact practicing mut'a]. But seldom do four witnesses come together on a single matter.'4

The Imam Ja'far considered mut'a a divine mercy by means of which people were saved from the sin of fornication and delivered from God's retribution. Concerning the Qur'anic verse: 'Whatsoever mercy God opens to men, none can withhold' (35:2) the Imam said: ' Mut'a is part of that mercy.'5

The Imam Ja'far said: 'I do not like a man to leave this world without having married temporarily, even if only on one occasion.'6

The Imam Ja'far said: 'It is reprehensible in my eyes that a man should die while there yet remains a practice of the Messenger of God that he has not adopted.' He was asked: 'And did the Messenger of God practice mut'a?' He replied: 'Yes.' Then he recited the Qur'anic verse: ' And when the Prophet confided to one of his wives a certain matter' up to the words 'and virgins too.' (66:3-5)7

The Shi'is call Abu Ja'far Muhammad al Tusi (d. 460/1068) the 'Elder of the Denomination' (Shaykh al-ta'ifa), since he is the founder of Shi'i demonstrative jurisprudence (al-fiqh al-istidlali); in other words, he was the first person to give Shi'i law a systematic basis. We can conclude this chapter with a summary of his views on mut'a.

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1. Wasa'il, XIV, 437, hadith 5.

2. Ibid., 439, had'ith 19.

3. Ibid., 437, hadith 6.

4. Ibid.,93-94.

5. Wasa'il, XIV, 437, hadith 5.

6. Ibid., 439, had'ith 19.

7. Ibid., 437, hadith 6.