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CHAPTER 21: EQUILIBRIUM AND PREFRENCES ( AL-TA‘ĀDUL WA’L TARĀDJĪĤ )

This chapter deals with the question of contradiction of proofs. By equilibrium in the title is meant that two proofs are equal in whatsoever necessitating preference of one to another, and by preferences is meant whatsoever necessitating preference of one to another where they are not equal - by infinitive being meant subject in the latter, i.e., preferrer.

Since incompatibility of proofs is of various kinds, we have to discuss them separately.

Contradiction (al-Ta‘āruđ)

Contradiction between two proofs occurs where either of them nullifies and repudiates the other. Such repudiation is either in all denotations or some of them, in such a way that assumption of subsistence of authority of either of them along with that of the other is impossible and one cannot act in accordance with both of them.

Conditions of Contradiction

Contradiction of proofs occurs only where the following conditions exist:

1. Neither of two proofs being definite; for should one of them be definite untruth of the other would be revealed, and it is obviously clear that untrue cannot contradict true. As for both of them being definite, it is absolutely impossible.

2. Actual conjecture not being considered in the authority of both, since actualization of actual conjecture as to two contradictory proofs is also impossible. Of course, actual conjecture may be taken into consideration particularly in one of them.

3. Denotations of two proofs contradicting one another, even though in parallel and in some aspects, so that mutual repudiation may occur. The criterion is that they would result in what cannot religiously be made and is impossible in the actuality, even though such impossibility being caused by something outside of their very denotations; as is the case with contradiction of proofs of obligation of Friday prayers and that of obligation of żuhr prayers on Friday, since there is no contradiction between those two proofs per se inasmuch as conjunction of obligation of two prayers in a specific time is not impossible, but as it is known through another proof that only one prayers is obligatory at a given time they repudiate one another.

4. Either of two proofs possessing conditions of authority, in the sense that either of them is an authoritative proof whose following is mandatory if there appears no contradictory proof - though one unspecified proof would become unauthorized as soon as contradiction occurs.

5. Relation of two proofs not being that of interference, as will be explained later.

6. Relation of two proofs not being that of sovereignty, as will be explained later.

7. Relation of two proofs not being that of entry, as will be explained later.

Primary Principle as to Contradictory Proofs

The primary principle as to contradictory proofs is mutual falling (al-tasāquţ), i.e., neither of two proofs may be treated as an authoritative proof - though the secondary principle is option, as will be explained later. For contradiction causes mutual repudiation and leads to non-actuality of one unspecified proof, i.e., either of them becoming obstacle to actuality of the other; hence, neither of them will possess constituents of actual authority so that it may make the actuality incontrovertible and mandatory. That is why they both become unauthorized. However, should one of them be endowed with a preferrer, as will be explained later, it is that one which must be taken.

Secondary Principle as to Contradictory Proofs

Although the primary principle as to the contradictory proofs is mutual falling, there are so many ĥadīths revealing another principle in this connection. Shiite scholars, however, disagree on what is inferred from such ĥadīths and hold three opinions:

1. Option as to taking either of them. This is the celebrated opinion, and even allegedly a matter of consensus.

2. To cease and follow the way of precaution.

3. Obligation of taking the one which accords with the precaution, and if neither of them is so one will have the option to take either of them.

As for the option, it should be noted that it is a primary and not a continuous one, in the sense that one is merely allowed to choose one of the two contradictory ĥadīths at the beginning, but one should follow it afterwards and has no option any more.

Customary Gathering (al-Djam‘ al-‘Urfī)

By gathering is meant taking two proofs altogether. It is an intellectual judgment that taking two seemingly contradictory proofs altogether is more plausible than leaving either of them.This judgment is due to the fact that contradiction does not occur unless all constituents of authority exist in either of them as to both chain of transmission and denotation, as was mentioned earlier. In case of existence of all constituents of authority, i.e., existence of the origin, nothing may cause leaving the proof but existence of an impediment to the efficacy of the origin; and that impediment can be nothing but their mutual repudiation.

On the other hand, possibility of gathering both proofs as to their denotations leaves no room for certainty of their mutual repudiation, which leads to lack of certainty as to the existence of impediment to the efficacy of authority with regard to the proof. Thus, how can one judge that one or both of those proofs is no longer authoritative proof?

However, it should be noted that such judgment of the intellect is not absolute, but rather is conditional upon the gathering being “customary” or “acceptable,” in the sense that it should not be in a way that custom of people of the language does not confirm it on the one hand and no third proof supports it on the other.

Preferrers

According to ĥadīths, if one of the two contradictory proofs is endowed with a preferrer, it should definitely be taken; but what the preferrers are is a matter of dispute. That dispute is beyond the level of an introductory work; hence, we merely mention that preferrers include such affairs as being in accordance with celebrity, conforming to the holy Qur’ān, not being uttered due to dissimulation, positive qualities of transmitters, and the like.

Interference (al-Tazāĥum)

What differentiates between contradiction and interference is that in the former the two proofs repudiate one another in the position of lawgiving while in the latter they are not so and it is the duty-bound who cannot take both of them in the position of obedience, such as the case where someone is going to be drowned and the only way to save him is an expropriated land. Here, there is no contradiction between “Do not expropriate” and “Save one who is going to be drowned” in the position of lawgiving at all. However, the duty-bound cannot take both of them in the position of obedience; he should eschew either the command or the prohibition.

The intellectual judgment in such cases is option: since taking both proofs is not possible, eschewing both of them is unlawful, there is no preferrer in this connection, and preferring without any preference is impossible, there remains no way but to leave the way of obedience in hands of the duty-bound inasmuch as subsistence of actual burden in either of them is impossible on the one hand and nothing exists to cause removal of burden in both of them on the other.

Since this judgment is among independent intellectual judgments, it reveals agreement of the divine lawgiver in this connection.

The important point, however, is to find out what the preferrers as to the interference are. It is obviously clear that preferrers should refer to the importance of one of the two proofs in the view of divine lawgiver: what is more important in His view is the one which should be given priority. But how can one find which of the two proofs is more important? Here, we mention some criteria for that:

1. Where one of the proofs has no substitutes while the other has some. In case of interference, what has no substitute is doubtlessly more important than the one having some; for the divine lawgiver has permitted to eschew the one with substitute and observe its substitute in case of compulsion while He has not permitted that as to the one without substitute. Hence, to give the one with substitute priority over the one without substitute causes elimination of the latter while to give the latter priority over the former leads to taking both burdens altogether in the position of obedience.

2. Where one of the proofs is constricted or urgent while the other is not so, such as purification of the polluted mosque (which is urgent) and performing prayers while there is still time. It is obviously clear, as was the case with the previous state, that giving the constricted or urgent duty priority over the other leads to taking both burdens altogether in the position of obedience while giving the latter, which has a vertical substitute, priority over the former causes elimination of the former.

3. Where one of the proofs has a specific time while the other is not so while both of them are constricted, such as performing daily prayers in the last part of their time and performing prayers of eclipse also in the last part of its time. Since daily prayers are of specified time in their very law-making, they are to be given priority over prayers of eclipse - which is not of specified time in its very law-making and has accidentally encountered shortage of time.

4. Where one of the proofs should be given priority due to its importance being obviously known in Islam, such as what concerns people’s rights especially their blood, and what is a pillar (rukn) in an act of worship.

Sovereignty (al-Ĥukūma) and Entry (al-Wurūd)

By sovereignty is meant a case where one of the two proofs is supposed to be given priority over the other because of its sovereignty while both of them are still authoritative proofs, i.e., neither of them repudiates the other. (Examples will be given where differences are expounded.)

“Entry” is used for a case where something is not included in something else - in a real manner, but through depiction of the divine lawgiver and not existentially - like the relation between authoritative conjectural proof (amāra) and such intellectual practical principles as clearance and option. As you remember, the object of intellectual principle of clearance is “lack of depiction,”

while the proof which makes the conjectural proof authoritative treats it as depiction - through declaration of the divine lawgiver - and thereby the object of intellectual principle of clearance is removed by such divine declaration. Also, the object of practical principle of option is perplexity, while the authoritative conjectural proof, because of the proof which has made it authoritative, makes one part preferable and thereby removes perplexity.

Thus, the difference between sovereignty and entry is that in the latter one proof really removes the object of the other, though through divine declaration, while in the former no proof removes the other’s denotation in a real manner; the removal is figurative and because of treating what is denoted by the divine declaration as an existent affair.

In order to make differences of four apparently similar expressions of alĥukūma, al-wurūd, al-takhşīş, and al-takhaşşuş, let us take one sample of the command “Revere Muslim scholars” and the prohibition “Do not revere impious Muslim scholars” in some different ways:

Should a certain Zayd not be a Muslim scholar, Zayd would obviously not be supposed to be revered. This is takhaşşuş (non-inclusion), since Zayd is really and existentially not included in the object.

Should that Zayd be a Muslim scholar but an impious one, he would be supposed to be revered if there were no prohibitions, since he is included in Muslim scholars. However, taking both the command and the prohibition necessitates that he should not be revered, for he is impious. This is takhşīş (restriction), which restricts revering to the pious Muslim scholars.

Thus, takhaşşuş is non-inclusion in the object while takhşīş is expelling from the judgment.

Now, suppose that a certain Bakr is a lay but pious man. If a predicative sentence such as “Lay but pious people are scholars” is declared, Bakr is included in the command of revering scholars and should be revered while he is not a scholar. This is ĥukūma. If a predicative sentence such as “An impious person is not a scholar” is declared, that Zayd who was an impious scholar is removed from the command of revering scholars and should not be revered while he is a scholar. This is another kind of ĥukūma. Thus, ĥukūma is inclusion or exclusion of something in or from an object by a predicative sentence through expanding or limiting realm of the object or subject.

Part IV: The Practical Principles

Introduction

Doubtless every follower of the religion knows, in summary fashion, that there are some divine obligatory precepts, whether compulsory or unlawful, that all duty-bounds, whether knowledgeable or ignorant, must observe. Such knowledge in summary fashion makes actual, obligatory duties incontrovertible; and since the intellect necessitates clarification of one’s obligation it becomes obligatory for duty-bounds to struggle for seeking knowledge of such duties through a reliable way whose following should make them certain of clearance from liability. That is why we believe in the obligation of knowledge-seeking in the one hand and of the quest for proofs of such duties on the other.

However, knowledge-seeking does not lead to precept finding in all probable cases; that is why the duty-bound may sometimes doubt what his duty is and wonder what to do. The divine lawgiver has taken such cases into consideration and made some practical duties for him in order to refer to them when necessary and act in accordance with them to become certain that he will not be punished in the hereafter because of negligence in performing his duties.

Uşūlīs have realized that such duties, which are general and not peculiar to certain parts of jurisprudence, are of four kinds: the principle of clearance from liability (aşāla al-barā’a), the principle of precaution or liability (aşāla aliĥtiyāţ or ishtighāl), the principle of option (aşāla al-takhyīr), and the principle of continuity of the previous state (aşāla al-istişĥāb). That is realized because doubt is generally of two kinds:

1. The doubtful has a previous state while that state is taken into consideration by the divine lawgiver; this is the position of principle of continuity of the previous state, 2. The doubtful does not have a previous state or that state is not taken into consideration by the divine lawgiver, and this is, in turn, of three kinds:

2.1. The duty is absolutely unknown, i.e., it is not known even generically; this is the position of the principle of clearance from liability, 2.2. The duty is known in summary fashion while precaution is possible; this is the position of principle of precaution or liability, and 2.3. The duty is known in summary fashion while precaution is not possible; and this is the position of principle of option.

Before dealing with any of those principles in detail, we have to mention some general points as to the practical principles:

1. By doubt is meant both real doubt, i.e., a case wherein both sides are equal, and the invalid conjecture; for the latter is treated as the former. In fact, the latter is really a kind of the former, for perplexity of the duty-bound will not be removed by following it and he remains doubtful whether or not he has cleared his obligation.

2. To doubt something with regard to its precepts is of two kinds:

2.1. The doubt is an object of the actual precept, such as doubting rak‘as of the prayers, for it sometimes causes change of the real precept into separate rak‘as.

2.2. The doubt is an object of apparent precept. It is this kind that is the matter of discussion here.

3. It should be emphasized that referring to practical principles is allowed only when the jurist has quested for the authorized conjectural proof of the precept which is the matter of dubiety and despaired of finding it. Thus, there would be no room for exercising practical proofs where the quest is possible and existence of an authorized conjectural proof is probable. The quest and despair in this connection is a matter of must for jurists, for knowing and learning precepts are obligatory. That is why the jurist would not be excused should he oppose an actual duty by exercising a practical principle, especially that of clearance.

4. It has been customary to open this part by discussing the principle of clearance - because, perhaps, it has been the major dispute between Uşūlīs and Akhbārīs. Here, we follow the same pattern.

CHAPTER 22: THE PRINCIPLE OF CLEARANCE (AŞĀLA AL-BARĀ’A)

It should preliminarily be noted that the doubt as to its object, i.e., the doubtful, is of two kinds: the doubtful is a universal precept, such as doubting whether smoking is unlawful or it nullifies fasting, which is called “the dubiety concerning the precept (al-shubha al-ĥukmiyya),” and the doubtful is an objective affair, such as purity of certain water or whether a certain liquid is wine or vinegar, which is called “the dubiety concerning the object (al-shubha al-mawđū‘iyya).” Since on the one hand the former may be caused by “lack of proof,” “ambiguity of proof,” or “contradiction of proofs” and on the other hand the dubiety in both of them is either concerning obligation or unlawfulness, we will have eight separate topics in this connection. However, since the discussion on the dubiety as to obligation is secondary to that as to unlawfulness without any differences, we will deal with the problem in question in the five following discourses: (1) the dubiety concerning the precept as to unlawfulness because of lack of proof, (2) the dubiety concerning the precept as to unlawfulness because of ambiguity of proof, (3) the dubiety concerning the precept as to unlawfulness because of contradiction of proofs, (4) the dubiety concerning the object as to unlawfulness, and (5) the dubiety concerning the precept as to obligation because of lack of proof, because of ambiguity of proof, because of contradiction of proofs, and concerning the object.

1. The Dubiety concerning the Precept as to Unlawfulness Because of Lack of the Proof

Generally speaking, there are two opinions in this connection: non-obligation of precaution by eschewing the act, and obligation of precaution by eschewing the act; the former being declared by Uşūlīs and the latter by Akhbārīs. In order to prove their opinions, Uşūlīs have argued the four-fold proofs, i.e., the Book, Sunna, consensus, and intellect first and nullified Akhbārīs’ proofs secondly.

1.1. Uşūlīs’ Proofs of Clearance

1.1.1. The Book

1.1.1.1. The verse 7 of sūra 65: “God charges no soul (with a burden) save with what He has given him.” To argue this, it is asserted that by “what” is meant the burden, and to give something is due to the thing given. To give a burden is to depict it; hence, as clearly emphasized in the verse, God will charge no soul with a burden which He has not depicted.

To that argumentation, it is replied that by “what” two other meanings, i.e., “possession” and “the sheer doing or abandoning something,” may be meant as well, and this prevents from predicating “what” upon the burden and arguing the verse for the clearance. Should the first be meant - and it is supported by contextual evidence, which is the previous phrase of the verse: “Let the man of plenty expend out of his plenty; as for him whose provision is stinted to him, let him expend of what God has given him”

- the phrase would mean that God charges no soul with the burden of expending money save the possession He has given him. Should the second be meant, the phrase would mean that God charges no soul save to its capacity (as mentioned in some other verses such as 2: 286). Any attempt for gathering those three meanings in one word would be in vain, for there is no encompassing word to cover all of them. Furthermore, consideration of burden as the meaning of “what” will not solve the problem; as depiction is attributed to God, it is apparent in depicting through usual means, i.e., revelation and sending prophets - something happened. This that some precepts are not delivered to us because of evil-doing of some unrighteous people in the past does not mean lack of depiction by the Almighty.

1.1.1.2. The verse 15 of sūra 17: “We have never been to chastise, until We send forth a Messenger.” To argue this, it is asserted that to send a messenger is an allusion to depicting precepts to duty-bounds. Thus, God will not punish duty-bounds because of opposing unknown burdens before they are depicted to them - and this is obviously “clearance.”

To that argumentation, it is replied that the phrase explicitly conveys negation of this-worldly chastisements of previous peoples and not chastisement in the hereafter which is the matter of dispute here. Thus, there is no such denotation in the verse in question.

CONCLUSION. Although some other verses are argued in this connection, none of them can prove clearance - as admitted by men of research among Uşūlīs and shown in the two examples mentioned above.

1.1.2. Sunna

There are some ten ĥadīths argued in this connection. However, we discuss only one of them known as the prophetic ĥadīth of Removal (al-Raf‘):

“Nine things are removed from my people: error, forgetfulness, what they have done under duress, what they do not know, what they cannot endure, what they have done under compulsion, to take as a bad omen, jealousy, to think of createdness [of the Almighty] so long as one has not uttered it.”

The preliminary discussion. To argue this ĥadīth for the clearance, it is usually asserted that (a) removal is not used in its literal sense in the ĥadīth, for those affairs do exist among Muslims, (b) in order for the speech not to be a lie we should consider something as omitted - as necessitated by the denotation of necessitation, and (c) that thing could be (c.1.) all effects in all nine phrases, (c.2.) the apparent effect in each phrase, or (c.3.) reproach in all nine phrases. Then, it is usually discussed at length which of the three probabilities mentioned above should be adopted.

On the other hand, some Uşūlīs have argued that removal in the ĥadīth should mean repelling, either figuratively, or literally - since removal, at the plane of its occurrence, is also literally repelling, for it repels efficacy of origin of something as to subsistence of that thing in the moment subsequent to its origination.

However, neither of those two argumentations is sound. The first is not so because one is allowed to refer to the denotation of necessitation only when such thing is necessary, while it will be clarified that the removal is used in its literal sense in the ĥadīth without occurrence of any lie. As for the second, its annulment will be known through consideration of the difference between removal and repelling.

In order to approach the ĥadīth in an appropriate way, we should consider the difference between removal and repelling first. Doubtless, removal occurs as to something which exists, that is why assumption of existence of the removed thing in an earlier time or plane is necessary - the removed thing exits even though the removal has not occurred yet - while in the literal usage of repelling nothing is considered but its being subsequent to the existence of origin of something, for repelling is preventing from efficacy of origin of something as to its actualization. Thus, both removal and repelling are supposed to be considered only when existence of origin of something is already assumed, but they differ from one another as to need for assumption of prior existence of the effect. In the former, it is assumed that the origin has affected that thing in an earlier time or plane, while what is considered in the latter is preventing from efficacy of the origin in the same time or plane. Of course, the actual existence of the removed thing is not necessary in veraciousness of literal usage of removal; rather, its allegedly existence, even though by consideration of existence of its origin, is sufficient, for the wise consider existence of origin of something as existence of that thing and treat it as if it exists.

It becomes clear, then, that there is no problem with predicating the removal in the ĥadīth upon its literal meaning in all nine affairs, since the sheer consideration of existence of something prior to the removal - when its origin does exist - is sufficient for veraciousness of usage of removal. Thus, removal in the ĥadīth means that canons (milākāt al-aĥkām), in spite of existence of their origins, are repelled as to efficacy in making such precepts for such affairs, because of grace-bestowing upon Muslims. However, repelling as to efficacy in making precepts differs with regard to the nine-fold affairs, since (a) in “taking as a bad omen, jealousy, and thinking of createdness [of the Almighty]” it is as to precept making, (b) in “error, forgetfulness, what they have done under duress, what they cannot endure, and what they have done under compulsion” it is as to inclusion of them in generality and absoluteness of precepts (whose result would be peculiarity of precepts to other than such things), and (c) in “what they do not know” is as to making the precaution obligatory despite the fact that canons necessitate such obligation, i.e., canons necessitate making precaution with regard to probable duties obligatory, but ĥadīth of removal declares that origins of precepts are repelled as to efficacy in making the precaution obligatory - because of grace-bestowing upon Muslims.

It should be noted in this connection that:

1. Effects removed by ĥadīth of removal should be qualified by neither “existence” nor “non-existence” of those affairs; for should they be qualified by existence of such affairs (as in the obligation of penance in “homicide in error”) the effect cannot be removed in case of occurrence of that affair, for it causes self-contradiction (what is considered the object of precept is not the object, and this is absurd) - the object of an effect requires existence of that effect and cannot cause its non-existence - and should they be qualified by non-existence of such affairs their removal would be due to removal of the object and not because of the ĥadīth (as in retaliation in case of “intentional homicide” which is qualified by non-existence of error; if homicide is caused by error the object of retaliation, i.e., intention and non-existence of error, is automatically removed).

2. As ĥadīth of removal declares God’s grace-bestowing upon Muslims, any affair whose removal contradicts grace-bestowing is not removed. For instance, although a “compelling contract” is done under compulsion, it is valid, for one who sells his property under compulsion is in an urgent need, and if his contract is treated as null and void his situation becomes worse -

something contrary to grace-bestowing.

3. What is removed in “jealousy” and “thinking of createdness [of the Almighty] so long as one has not uttered it” is their unlawfulness, which would have been made should grace-bestowing not be declared; and what is removed in “taking as a bad omen” is unlawfulness of quitting something because of a bad omen: although people should not quit anything because of a bad omen, ĥadīth of removal declares that they have not committed a sin if they do so. By removal in “error, forgetfulness, what they have done under duress, and what they have done under compulsion” is meant that whatsoever done in such cases has no religious effect and is considered null.

The primary discussion: how ĥadīth of removal denotes clearance. There is no dispute that the ĥadīth denotes clearance with regard to the dubiety concerning the object. Therefore, should one doubt whether certain water is pure, one would treat that water as pure, and should one doubt whether certain liquid is wine or vinegar, one would be allowed to drink it.

The matter of dispute is whether the ĥadīth includes the dubiety concerning the precept as well so that when one lacks knowledge of unlawfulness of certain thing, because it has no precedent in early Islam and there is no proof in favor of it in the sources, one is allowed to do it according to the principle of clearance.

Those who oppose such inclusion argue that on the one hand contextual coherence necessitates that by “what they do not know” should be meant the doubtful object and not precept, since by the relative pronoun in “what they have done under duress,” “what they cannot endure,” and “what they have done under compulsion,” is meant the act that they have done under duress, they cannot endure, or they have done under compulsion; hence, by the relative pronoun in “what they do not know” should also be meant an act which is doubtful, such as a specific drinking which is not known whether it is wine or vinegar drinking. On the other hand, there is no inclusive affair capable of encompassing both the dubiety concerning the precept and the dubiety concerning the object - so that we may consider that by the relative pronoun is meant that inclusive affair - for what is removed in the dubiety concerning the precept is the very object of ignorance, i.e., the unknown actual precept, and attribution of removal to it is of attribution of something to what it is for, while the object of ignorance in the dubiety concerning the object is primarily the external thing and only secondarily the religious precept, and since the external thing is not removable by itself attribution of removal to it would be of attribution of something to other than what it is for - and these two cannot be both used in one usage and one attribution. Now, which of them should be preferred? The answer is “the doubtful object,” for, although the attribution is apparent in being directed to what it is for and this gives priority to dubieties concerning precepts, contextual coherence, which is a stronger appearance than that appearance, necessitates peculiarity of the relative pronoun to dubieties concerning objects.

To the first argumentation, Uşūlīs have replied that there is no such contextual coherence in the ĥadīth, for “to take as a bad omen, jealousy, and to think of createdness [of the Almighty]” are included in it while it is obviously clear that by them the act is not meant. As for the second argumentation, it can be said that by the relative pronoun in “what they do not know” is meant “the religious unknown precept in an absolute sense” which includes both dubieties concerning precepts and objects, since there is no difference between those two dubieties but that the origin of doubt in dubieties concerning precepts is lack or ambiguity of proof while in dubieties concerning objects it is external things, and difference in the origin of doubt makes no difference in attribution of removal to the relative pronoun.

Thus, one can argue the ĥadīth of removal in order to prove clearance in cases of probability of unlawfulness against those who believe that in such cases the duty-bound is supposed to follow the way of precaution. However, it should be noted that the principle of clearance can be exercised only after the quest for all probable proofs and despair of finding any; no one is allowed to act in accordance with that principle before the quest and despair.

1.1.3. Consensus

Although some Uşūlīs have attempted to present some ways to prove that there is a consensus among Shī‘a scholars on the clearance, all such attempts are in vain, for Akhbārīs are obviously against that claim and emphatically insist that duty-bounds must follow the way of precaution and avoid doing anything whose unlawfulness is probable.

1.1.4. The Intellect

The intellect undoubtedly judges that punishment without depiction is reprehensible. In other words, it judges independently, without any need to religious judgments, that it is reprehensible to reproach and punish someone without there being a depiction available to him - of course when he has made a thorough quest for probable existing proofs but has found nothing.

This intellectual rule, which cannot be a matter of dispute and is accepted by Akhbārīs as well, is the major premise of a syllogism which proves clearance:

there is no depiction with regard to the dubiety concerning the precept as to unlawfulness where there is no proof (the minor premise), punishment without depiction is reprehensible (the major premise), then, there would be no punishment should one not avoid such dubiety. As mentioned above, the major premise cannot be a matter of dispute; it is the minor premise which is disputed: Akhbārīs claim that proofs proving obligation of precaution are to be considered as depiction. That is why Uşūlīs should nullify proofs argued by Akhbārīs as to obligation of precaution so that they can argue this intellectual proof.

On the other hand, there is another intellectual proof in this connection argued by Akhbārīs for proving obligation of precaution: obligation of repelling the probable harm. According to this rule, there is a probable harm in doing the dubiety concerning the precept as to unlawfulness where there exits no proof (the minor premise), repelling the probable harm is obligatory (the major premise), then, to avoid the dubiety concerning the precept as to unlawfulness in case of lack of proof is obligatory.

Since these two intellectual proofs seem to contradict each other, we have to find out which of them should be given priority over the other. It should be noted that the subject matter of the former is “lack of depiction” and that of the latter is “the probable harm.”

In order to prove intellectual obligation of precaution, it is said that the relation between those two rules is entry on the part of latter, since it is a depiction for the necessity of precaution. This argumentation, however, is not sound; for by the harm is meant either:

a. Other-worldly harm, i.e., the rule declares that probability of unlawfulness implicates harm and punishment in the hereafter; then, there is no room for the minor premise of the syllogism - though its major premise is all right. The major premise is all right because repelling otherworldly probable harm is intellectually obligatory, since it is a probability of eternal misery and unblessedness. The minor premise has no room because the rule has no subject matter. As mentioned earlier, the subject matter of this rule is probable - here, the otherworldly - harm, and that harm is negated by the intellectual rule of reprehensibility of punishment without depiction. It is concluded, then, that the relation between those two rules is entry on the part of the former and not the latter.

Should one attempt to nullify this argumentation and assert that the rule of obligation of repelling the probable harm brings about a probability of harm and makes a minor premise for it, we would reply that this is not acceptable, for a rule cannot make a subject matter for itself. This argumentation is like the following reasoning: “This is wine.” “Why?” “Because wine is unlawful!”

Or :

b. This-worldly harm, i.e., the rule declares that probability of unlawfulness implicates this-worldly harm; then, there is no room for neither the minor nor the major premise of the syllogism: minor premise, because the criteria for precepts are not always harm, but rather actual good and evil which are not of kind of harm; and major premise, because the intellect has no judgment that any this-worldly harm should be repelled, but rather there are some definitive, let alone probable, harms which are always undertaken by the wise for some this-worldly motives.

1.2. Akhbārīs’ Proofs of Precaution

1.2.1. The Book

1.2.1.1. The verse 102 of sūra 3:

“… Fear God as He should be feared.”

It is inferred from this verse that to fear God as He should be feared is obligatory, for God has commanded that and the command is apparent in the obligation. To fear God as He should be feared with regard to the case in question means to avoid whatsoever whose unlawfulness is probable, and this is the way of precaution.

Uşūlīs have said that to fear God means to avoid committing whatsoever God has forbidden and eschewing whatsoever He has commanded. But doing whatsoever whose unlawfulness is probable without there being a single proof of its unlawfulness on the one hand and permission of both the intellect and the divine lawgiver to do it on the other does not contradict God-fearing.

It should be noted, however, that Akhbārīs’ argument is focused on fearing God as He should be feared and not fearing Him in an absolute sense.

1.2.1.2. The verse 36 of sūra 17:

“And do not pursue that you have no knowledge of.”

To argue this verse, it is said that to pursue what one has no knowledge of is unlawful, for Gad has prohibited from that and prohibition is apparent in unlawfulness. To do what whose unlawfulness is probable and not to avoid dubieties is to pursue what one has no knowledge of, and this is forbidden and unlawful.

Uşūlīs have replied that to do what one has both intellectual and religious proofs for its permissibility is not to pursue what one has no knowledge of -

which is forbidden.

There are some other verses argued as to obligation of precaution, but all such argumentations are nullified by Uşūlīs.

1.2.2. Sunna

There are a huge number of ĥadīths argued by Akhbārīs as to obligation of precaution. However, they can all be classified into four categories only two of which being discussed here:

1.2.2.1. What denotes unlawfulness of issuing juristic decisions with no knowledge, such as, “it is upon duty-bounds to say what they know and to stop where they have no knowledge of,” (al-Kulainī, 1:43) and the like.

To that, Uşūlīs have replied that to do what one has both intellectual and religious proofs for its permissibility is not to issue juristic decision without knowledge.

1.2.2.2. What denotes that to stop where there is dubiety is better than to sink into perishment, such as, “stop where there is dubiety, for stopping where there is dubiety is better than sinking into perishment,”(al-Kulainī, 1: 50) and the like, in which the divine lawgiver has commanded duty-bounds to stop in such cases and follow the way of precaution.

Uşūlīs have said that such ĥadīths should be predicated upon dubieties accompanied by summary-fashioned knowledge, for their appearances convey that perishment, which is punishment, has already existed in a plane prior to the command to stop. The reason is that they have treated sinking into the perishment as the cause for commanding to stop; hence, the doubted duty must have been incontrovertible in the plane prior to the command to stop so that the argumentation can be plausible and sinking into dubiety can be considered sinking into perishment and punishment. Thus, dubieties in such ĥadīths must be those accompanied by summary-fashioned knowledge, or primary dubieties before the quest for probable proofs.

1.2.3. The Intellect

Two intellectual proofs are attributed to Akhbārīs for obligation of precaution:

1.2.3.1. Intellectual rule of obligation of repelling the probable harm. Uşūlīs’ reply to this argument was discussed at length earlier.

1.2.3.2. Since we have knowledge in summary fashion that there are so many unlawful affairs among dubieties on the one hand and summaryfashioned knowledge makes duties incontrovertible on the other, to follow the way of precaution through avoiding all dubieties becomes obligatory; for it is the intellect’s judgment that definite liability necessitates definite clearance.

To that argument, it is replied that such summary-fashioned knowledge is reduced to the detailed knowledge of unlawfulness as to what is proved by sources and primary doubt with regard to other cases - the latter being an instance of principality of clearance, as proved earlier.

2. The Dubiety concerning the Precept as to Unlawfulness Because of Ambiguity of the Proof

Since an ambiguous proof has no denotation and should be treated as nonexistent on the one hand and proofs presented earlier have no peculiarity to the case of lack of proof on the other, clearance is proved for this case as well.

3. The Dubiety concerning the Precept as to Unlawfulness Because of Contradiction of Proofs

The discussion here is pursuant to what was discussed in chapter 21 where criteria for preferring one proof to another were explained in detail. In short, should one proof be preferable, it would be taken into consideration and the other would be left aside the dubiety being thereby dissolved. Otherwise, one would have the right to choose any of proofs, as was explained there.

4. The Dubiety concerning the Object as to Unlawfulness

All proofs presented as to the dubiety concerning the precept serve here as well and prove clearance with regard to objects. Furthermore, there is a consensus among both Akhbārīs and Uşūlīs on the clearance here.

5. The Dubiety as to Obligation concerning the Precept Because of Lack of the Proof, Because of Ambiguity of the Proof, Because of Contradiction of Proofs, and concerning the Object

Since proofs and criteria are the same in dubieties as to both unlawfulness and obligation, clearance with regard to all these four cases is definitely proved.

Furthermore, there is again a consensus among both Akhbārīs and Uşūlīs on the clearance in such cases.

CHAPTER 2:THE COMMANDS (AL-AWĀMIR)

By command is meant wish (in the sense that one wants something to be done: alţalab) which, in turn, means to express will (al-irāda) and desire through speech, writing, pointing, or the like; whether by such terms as “I command you” or by an imperative. Thus, the sheer will and desire without being expressed in some way is not called wish. However, any wish is not called command, but a specific one, that is, wish of superior from inferior. Hence, superiority is considered in the command, whether the superior demonstrates his superiority or not, and whether he uses an imperative (or uses the verb “command”) or not - the only point is that he should somehow express his wish. On the other hand, wish of the one who is not superior, whether he is inferior or coequal, is not a command, even though he pretends superiority or uses an imperative.

Appearance of the Command

The important point, however, is the denotation of the command, which is a matter of dispute among Uşūlīs. There are a variety of opinions in this connection the most important of which being obligation (al-wudjūb), preference (al-istiĥbāb), and the common point between obligation and preference. The truth, however, is that the command is apparent in the obligation - not conventionally, but because of judgment of the intellect. It is intellect’s judgment that when the Lord commands us we must obey Him and must be provoked in order to fulfill our duty as servants, unless He declares that His command is not a matter of must and we are free not to do it. Thus, this appearance is not a literal appearance and this denotation is not a lingual one, for the imperative is neither literally nor figuratively used in the concept of obligation, since obligation is something out of the reality of its object of denotation and also it is not among its qualities or states.

Concerning appearance of the command, however, there remain two secondary discussions:

1. Should a declarative sentence be used as configuration, it denotes obligation exactly as the imperative does, for the criterion, which is the intellect’s judgment to obey the Lord’s provoking, exists in both of them - no matter in what way that provoking is declared. An example of this is the case where the holy Imām was asked about occurrence of a problem in the prayers and he said, “He repeats his prayers.” One may even say that indication of obligation is definitely emphasized in this kind, for it is assumed that the duty-bound will surely do it.

2. When a command is preceded by an actual or an assumed prohibition, there is a dispute among Uşūlīs whether it is apparent in the obligation, permissibility, or merely permission, i.e., removal of prohibition without dealing with any of the five-fold burdensome precepts, or it returns to its previous precept before the prohibition.

The justifiable opinion is the third one, for we said earlier that indication of obligation by the command is because of intellect’s necessitation of being provoked where there is no permission to relinquish. Nonetheless, there is no provoking here; it is just permission to do and nothing more. For instance, when the Almighty God says, “…Do not profane God’s Way marks [when you are in pilgrim sanctity]… but when you have quit your pilgrim sanctity, then hunt,” (5:1-2) it clearly does not mean that hunting is mandatory, but rather permitted.

Of course, if there is contextual evidence that such a command is issued to provoke the duty-bound to perform something, or with the intention of allowing him to do it, it will definitely denote obligation and permissibility respectively, and cannot be a matter of dispute. Wherever there is a dispute, it is about a case where no contextual evidence exists.

Varieties of Mandatory Acts

Mandatory acts are of some varieties some of which being as follows:

Absolute (al-Muţlaq) and Conditional (al-Mashrūţ)

Should a mandatory act be compared with something external, it can only be of the two following kinds:

1. If its obligation is dependent upon that thing and that thing is considered in the obligation of the mandatory act as a condition, such as pilgrimage to Mecca (al-ĥadjdj) with regard to financial capability (al-istiţā‘a), it is called “conditional mandatory act,” since its obligation is conditional upon actualization of that external thing; and that is why the pilgrimage will not become mandatory unless financial capability is actualized.

2. If its obligation is not dependent upon actualization of that thing, such as the pilgrimage with regard to travelling to Mecca - even though its actualization is dependent upon the latter - it is called “absolute mandatory act,” since its obligation is unconditional upon that external thing.

The example of pilgrimage indicates that the absolute and conditional are relative, since one mandatory act is absolute with regard to one thing and conditional with regard to another.

It should also be known that all mandatory acts are conditional with regard to general conditions of burden, i.e., puberty, power, and intellect. Hence, the minor, impotent, and insane have no burden in the actuality.

Suspended (al-Mu‘allaq) and Definite (al-Munadjdjaz)

Doubtless when condition of the conditional mandatory act is realized its obligation becomes actual, like the absolute mandatory act, and the burden is actually directed to the duty-bound. However, actuality of the burden is conceivable in two ways:

1. If actuality of the obligation and the mandatory act is simultaneous, in the sense that the time of mandatory act is the very time of the obligation, the mandatory act is called “definite” (al-munadjdjaz); such as the prayers when its time comes, since its obligation is actual and the mandatory act, i.e., the prayers, is also actual.

2. If actuality of the obligation is prior to that of the mandatory act and therefore the time of mandatory act is later than that of obligation, it is called “suspended” (al-mu‘allaq), since the act and not its obligation is suspended until a time not realized yet. An example of this is the pilgrimage, since when the financial capability is actualized the obligation of the pilgrimage becomes actual - as it is said - while the mandatory act is suspended until coming of the time of the ritual. Here, when the financial capability is actualized the pilgrimage becomes mandatory, and that is why it is mandatory for the duty-bound to provide all preliminaries to become able to perform it in its specific, limited time.

In this connection, there are two disputes among Uşūlīs:

First, whether al-wādjib al-mu‘allaq is possible. Some believe in its possibility, while the majority of Uşūlīs hold that it is impossible - a discussion beyond the level of an introductory work.

Secondly, whether appearance of the conditional sentence in such an example as “when the specified time comes perform the prayers” is that the condition is a condition for “the obligation” and hence the prayers will not become mandatory except when the time has come, or it is a condition for “the mandatory act” and hence the mandatory act itself is suspended until coming of the time while the obligation is actual and absolute. If the first, the mandatory act will be a conditional one and none of the preliminaries would be mandatory before actualization of the condition; and if the second, the mandatory act will be an absolute one in which the obligation is actual before actualization of the condition, and hence if one knows that the condition will become actualized later on one should provide all preliminaries. This dispute needs a detailed consideration to be observed in the respective discussion.

Determinate (al-Ta‘yīnī) and Optional (al-Takhyīrī)

The determinate mandatory act is the one which is determinately wished and has no horizontal parallel in the position of obedience, such as prayers and fasting in Ramađān. To Add “horizontal” is necessary because there are some determinate mandatory acts that have some vertical parallels, such as ablution which has the vertical parallel, i.e., dry ablution (al-tayammum), since the latter is lawful only when the former is not possible.

The optional mandatory act is the one which is not determinately wished and has a horizontal parallel. In other words, what is wished is whether this one or another, in such a way that the duty-bound is free to choose each of them.

An example of this kind is the penance when one does not observe fasting in Ramađān deliberately, sine he must either fast sixty days, or feed sixty needy people, or free a slave.

Individual (al-‘Aynī) and Collective (al-Kifā’ī)

The individual mandatory act is the one which is obligatory for every dutybound and cannot be substituted by obedience on the part of others, such as the prayers, fasting, pilgrimage, and so forth.

The collective mandatory act is the one in which what is desired is merely actualization of the act, no matter who has done it, such as burying a dead person, purifying the mosque, and the like. Hence, that affair is obligatory for all, but should it be done by some it is considered done and others will be exempted. However, if it is eschewed by all and left undone all will be punished, but in the case of being done by some only those who have participated will be rewarded.

Extended (al-Muwassa‘) and Constricted (al-Muđayyaq)

Considering the time, the mandatory act is divided into of specified time (al-muwaqqat) and of unspecified time (ghayr al-muwaqqat). The one of specified time, in turn, is divided into extended and constricted; and the one of unspecified time into urgent (fawrī) and non-urgent (ghayr fawrī).

The mandatory act of unspecified time is the one in which no specific time is considered juristically, though no act can be done without a time as its vessel, such as belated performing of the prayers, purification of the mosque, and the like. This kind, as was said, is in turn divided into the urgent which cannot be delayed from the first possible time, such as returning a greeting, and nonurgent which can be delayed, such as belated performing of the prayers, burial prayers, paying the fifth (al-khums) and so on.

The mandatory act of specified time is the one in which a specific time is considered juristically, such as the prayers, the pilgrimage, fasting, and the like.

The relation between this kind and its specified time can logically be conceived only in three ways: when its performing takes more time than its specified time, when both times are equal, and when the former is less than the latter.

The first is impossible, since it is charging with the impossible. The second is doubtlessly possible and has occurred in the Sharī‘a as well, and that is the one called constricted, such as fasting whose specified time precisely covers its time of performing. And the third is the one which is called extended, since the dutybound is free to perform it in the first, middle, or the last part of the time; such as daily prayers which cannot be left undone in the whole time but must be done once in its specified time.

Every Muslim knows that some mandatory acts of specified time, such as prayers, fasting, and the like, must be performed belatedly if they are not performed in their specified time. However, there is a dispute among Uşūlīs whether such performing is principally a matter of must, in the sense that the very command to the mandatory act of specified time denotes that it must be belatedly performed if it is not performed in its specified time and hence obligation of belated performing is proved by the very proof of original performing, or it is not so and obligation of the belated performing needs a proof other than that of the original performing itself - the dispute being addressed by Uşūlīs as whether the belated performing follows the timely one or not (hal yatba‘ al-qađā’ al-adā’?).

There are three opinions in this connection: the belated performing absolutely following the timely, the former absolutely not following the latter, and distinguishing between the case where the proof of time appointing is mentioned in the proof of the mandatory act itself and the case where it is mentioned separately. According to the third opinion, in the first case the belated performing does not follow the timely one while in the second case it does.

It seems that the origin of the dispute is the disagreement among Uşūlīs whether what is understood from the time appointing is unity of the desired, or its multiplicity; i.e., whether there is one desired affair in the mandatory act of specified time and it is the act qualified by the time as it is qualified or there are two desired affairs, i.e., the act itself and its being done in a specific time.

If the first, when the command is not obeyed in its specified time there would remain no wish for the act itself and hence a new command to perform the act out of its time must be assumed; and if the second, when the command is not obeyed in its specified time only one desired affair is not obeyed, i.e., the one demanding its being in the specified time, while the wish for the act itself is still enduring - and that is why some have held the third opinion.

The justifiable opinion is the second one, i.e., the belated absolutely not following the timely; for the appearance of qualification is that the proviso is a pillar in the desired. Thus, if the Lord says, “Fast on Friday,” only one desired for one purpose is understood, and it is particularly fasting on that day; it is not understood that fasting per se is one desired and its being on Friday is another one. The case is the same with the separate proof of time appointing.

For instance, if the Lord says, “Fast,” and then He says, “Observe the fasting on Friday,” the absolute should be predicated upon the qualified - as is the rule in such cases. Predication of the absolute upon the qualified means confining the very first desired to the proviso; such qualification revealing that what was really meant by the absolute from the very beginning was just the qualified, and thereby both proofs become one due to taking both of them altogether.

It does not mean that the qualified is a desired affair other than the absolute, otherwise it would mean that the absolute has remained absolute; and this is not predication and taking two proofs altogether (djam‘ bayn al-dalīlayn), but rather keeping each of them separately (akhdh bi'l dalīlayn).

Religiously (al-Ta‘abbudī) and Instrumental (al-Tawaşşulī)

In the Islamic holy Sharī‘a, there are obligations that are not considered sound and their commands are not obeyed unless they are performed with the intention of proximity to God, such as the prayers, fasting, and the like.

Such obligations are called religiously obligations (al-ta‘abbudiyyāt). On the other hand, there are other obligations whose commands are obeyed merely by being performed without having any divine intention, such as saving a drowning person, burying a dead person, purifying cloths and body for the prayers, and the like. Such obligations are called instrumental obligations (al-tawaşşuliyyāt).

Varieties of Mandatory Acts and the Absoluteness of the Mode (al-Şīgha)

When a command is issued, if there is a contextual evidence determining which variety of command is intended, e.g., extended or constricted, determinate or optional, etc., it is obviously clear that one must definitely obey the command in the way it is specified. However, if there is no such evidence, where the command is absolute and lacks any contextual evidence, what should the duty-bound do?

Should he treat it as extended, or constricted; determinate, or optional, and so forth? Does absoluteness of the imperative necessitate that the command should be individual, or collective; determinate, or optional; extended, or constricted; suspended, or definite; and finally religiously, or instrumental?

The general criterion for such recognition is to find which variety is in need of more depiction; that is the one which must be dismissed, since it is the one which needs contextual evidence - something missing as was assumed. For instance, when the Lord commands, “Perform the prayers,” it can be considered collective only if He adds in His command “unless others should have done it.” This is an additional proviso which He has not added, while He could do so. Hence, from this lack of depiction we can logically conclude that He had not wished that proviso, and thereby we treat that command as being individual. Thus, absoluteness of the imperative necessitates that the command should be individual, determinate, extended, and definite; since these varieties are not in need of more depiction.

The case with the religiously and instrumental, however, is not that simple; it is somehow complicated if one specific meaning of intention of proximity to God is taken into consideration. It is clearly known that the intention of proximity to God can be actualized in some different ways. One is to intend that the commanded act is essentially liked and desired by the Lord. Another is to intend merely the Lord’s pleasure. Should such meanings of intention of proximity to God be meant, there would be no doubt that absoluteness of the imperative would necessitate that the command should be treated as instrumental if there were no contextual evidence, for what is in need of more depiction is the religiously mandatory act inasmuch as its command is supposed to include an additional proviso, i.e., being performed with the intention of proximity to God - something missing. In such case, the duty-bound can refer to the principle of absoluteness in order to negate that proviso.

However, one kind of intention of proximity to God is that of “obeying the commandment.” Since it is impossible to consider this proviso in the commanded act, whose reason will be explained below, should this meaning of intention of proximity to God be considered one could not refer to the principle of absoluteness in order to negate this proviso and conclude that since the Lord has not uttered that proviso He has not considered it in His commandment.

For this non-utterance may have two reasons: He has not wished it, or He has wished it but He has not uttered it because of impossibility of that utterance. That is why one cannot conclude in such case that absoluteness of the imperative necessitates that the command should be instrumental. Rather, since consideration of that impossibility is probable in that non-utterance, the intellect judges that one must perform the act with that proviso in order to make sure that he has obeyed the Lord’s command as such; and should that act be done without that proviso, the intellect would judge that the dutybound has not performed his divinely duty as he was supposed to and deserves punishment in the hereafter. The principal rule in such cases is that when one definitely knows that the Lord has commanded something, since one is sure that such a command has been issued, one must obey the command in such a way that one could definitely be certain of observing the Lord’s command -

whatever the case may be in the actuality - and this necessitates observing all probable provisos.

In order to explain that impossibility, we should mention that there are two kinds of division with regard to the mandatory acts: primary, and secondary.

Primary Divisions. Such divisions are those which are considered in a mandatory act per se apart from consideration of attachment of anything to it. For instance, prayers can be divided in itself, without consideration that a command is directed to it, into “with ablution and without it,” “with sūra and without it,” and so forth. In such divisions, the mandatory act can be of one of the following three states with regard to any proviso:

1. If the mandatory act is conditional upon that thing, it is called “conditionedby-something” (bi-sharţ shay’); such as ablution, sūra, rukū‘, sadjda, and other conditions of the prayers.

2. If the mandatory act is conditional upon non-existence of that thing, it is called “negatively conditioned” (bi-sharţ lā); such as speaking, laughing, and other things which interrupt the prayers.

3. If the mandatory act is absolute with regard to that thing being conditional neither upon its existence nor its non-existence, it is called “unconditioned” (lā bi-sharţ); such as the prayers with regard to qunūt (special prayer in the second rak‘a before rukū‘), color of the clothes worn, and so on.

Now, if the proof declaring obligation of something denotes that it is conditional upon existence or non-existence of something else, it must doubtlessly be followed in the way it is declared. However, if a condition is probable but neither positively nor negatively is mentioned in the proof, one may refer to the principle of absoluteness in order to negate that probable condition - if all “premises of wisdom” which allow one to refer to that principle are actualized, as will be explained in chapter 6 - and thereby discover that the speaker has really wished the absolute from the very beginning, which means that the mandatory act is not taken in relation to the proviso except in the unconditioned mode. In short, there is no problem with referring to the principle of absoluteness in order to negate probability of qualification in the primary divisions.

Secondary Divisions. From another view, mandatory act, if it is really commanded, is divided into what is externally done for the purpose of its command and what is done not for the purpose of its command, and the like. Such divisions are called secondary divisions as they are additional to the precept when a real obligation is assumed; for before actualization of a precept performing of the commanded for the purpose of its command is nonsensical, since it is assumed that it is not commanded in that state so that one can intend its command. Thus, in such divisions, qualification of the commanded act is impossible, for intending obedience of the command is subject to the existence of the command; how could it be plausible that the command is qualified by it, then? This necessitates that the command should be subject to intending the command while intending the command has been subject to the existence of the command, necessitating that the precedent should be subsequent and the subsequent be precedent - something impossible, since it is either selfcontradiction or vicious circle. Now, should qualification be impossible, absoluteness would be impossible too; since contrariety of qualification and absoluteness is that of possession and privation; hence, absoluteness cannot be assumed except in a case that can be qualified. Thus, where qualification is impossible, one cannot infer from non-qualification that the absolute is willed; and this results, with regard to the topic in question, that the absoluteness of the imperative necessitates that the mandatory act should be treated as being religiously.

On the other hand, there is a way to conclude that even in the secondary divisions, in which qualification is impossible, absoluteness of the imperative principally necessitates that the mandatory act should be instrumental; and that is the “absoluteness of the position (iţlāq al-maqām).” Although mentioning the condition in the command itself is impossible in such divisions, should one who commands wish that condition, one is not supposed to be heedless to that and should follow another way to attain one’s purpose - even though by issuing two commands: one for the act itself without the proviso, and another for the proviso. These two commands are in fact one, for they are issued for one purpose and the second is a depiction for the first. Hence, should the second command not be obeyed, the first would not be considered obeyed if done without the proviso. Therefore, the second command joined to the first is common with the qualification in the result, even though it is terminologically not called qualification. Now, where the Lord commands something and He is in the position of depiction but He does not command for the second time that such command should be performed with the intention of obedience, it will be discovered that the intention of obedience has no role in His purpose; otherwise, He would have expounded it by another command. Therefore, the principle in mandatory acts is being instrumental except where it is proved by a proof that they are religiously.

Promptitude (al-Fawr) or Belatedness (al-Tarākhī)

There is a dispute among Uşūlīs whether the imperative per se conventionally denotes promptitude, belatedness, both of them as homonymous, or none of them but rather it is the contextual evidence that designates any of them.

The justifiable is the last opinion; for, as mentioned earlier, the imperative denotes merely the wishful relation and hence has no indication of any of the promptitude or belatedness. Thus, should an imperative be void of any evidence, it could be performed either promptly or belatedly.

Once (al-Marra) or Repetition (al-Takrār)

There is another dispute among Uşūlīs whether the imperative per se denotes conventionally once or repetition, and the justifiable opinion is the same with the previous problem. For, as was said there, the imperative denotes merely the wishful relation and nothing else. Of course, obedience to the command necessitates bringing about at least one instance of the nature of the act, for not doing that is equivalent to disobedience.

However, the absoluteness of the mode necessitates that performing the mandatory act once is enough; for the Lord's desire can only be considered as one of the three following probabilities:

1. The desired is sheer existence of the thing without any proviso or condition, in the sense that He wishes that His desired should not remain non-existent but rather come out from darkness of nonexistence into the light of existence - even though through one single instance. In such case, the desired would necessarily be actualized and obeyed by the first existent and doing the mandatory act more would merely be a vain performance; its example being daily prayers.

2. The desired is one existence with the proviso of unity, i.e., it is conditional upon not being more than the first existence. In such case, should the duty-bound perform it twice, he has absolutely not obeyed the command; its example being the inaugural takbīr (saying “God is the greatest”) of daily prayers, since the second nullifies the first and becomes null itself.

3. The desired is the repeated existence; either conditional upon repetition, i.e., the desired being the whole as a whole and hence obedience not being actualized by doing the mandatory act once such as rak‘as of one prayers, or unconditioned with regard to its repetition, i.e., the desired being each of existences, such as fasting in days of Ramađān inasmuch as each day has its specific obedience.

Doubtless the two later facets are in need of more depiction. Thus, should the Lord, who is in the position of depiction, command in an absolute way and do not qualify His command to any of those two facets, it would be discovered that He has wished the first facet. Hence, the obedience, as was said earlier, would be actualized by the first existence and the second one would be considered neither disobedience nor obedience.

To Command Something Twice

If an act is commanded twice, this can be considered in two ways:

1. The second command is issued when the first one is already obeyed. In such case, it must doubtlessly be obeyed again.

2. The second command is issued when the first one has not been obeyed yet. In such case, one may doubt whether one must perform it twice or one performing would be enough. Should the second command be initiation (ta’sīs) of another obligation, it must be performed twice; but should it be an emphasis (ta’kīd) of the first, one performing would be enough. In order to find out the justifiable opinion, it should be noted that this assumption is of four states:

2.1. Both commands are unconditional, e.g., the Lord says, “Perform the prayers” and again He says, “Perform the prayers”. Here, the second command should be predicated to the emphasis, for directing two commands to one thing without existence of any distinctiveness is impossible. Had the second been initiation and not emphasis, the speaker would have been supposed to qualify its object even though by such a statement as “for the next time.” Thus, from non-qualification on the one hand and the appearance that the object in both of them is one on the other, the command in the second becomes apparent in the emphasis -

although appearance of a speech per se is principally initiation and not emphasis.

2.2. Both commands are conditional upon one proviso, e.g., the Lord says, “Perform minor ablution for the new prayers if you have not performed it for the previous one” and then He repeats the same words. In this case, the second is predicated to the emphasis, for the same reason expounded in the previous state.

2.3. One command is conditional while the other is not, e.g., the Lord says, “Perform the major ablution (al-ghusl),” and then He says, “Perform the major ablution if you have had sexual intercourse.” The desired in this case is also one and the second is predicated to the emphasis, for the commanded act is apparently one and this prevents directing two commands to it - though here absoluteness of the absolute command, i.e., the unconditional, is predicated to the qualification through which the second qualifies absoluteness of the first and reveals what was intended by it.

2.4. One command is conditional upon one proviso and the other upon another, e.g., the Lord says, “Perform the major ablution if you have had sexual intercourse,” and then He says, “Perform the major ablution if you have touched a dead body.” In this case, the second is apparently predicated to the initiation, for the appearance is that the desired in either of them is different from the other. It is very unlikely that the desired in both of them would be one.

There are two other probabilities here: emphasis (ta’kīd), and intervention (tadākhul). Emphasis is nonsense here. As for the intervention, in the sense that one could content oneself with doing the commanded act once, although it is possible, it contradicts primary principles; that is why one can refer to it only where there is a specific proof revealing that. (The problem of tadākhul would be discussed in chapter 4 in detail.)

Denotation of “Command to Command”

Should the Lord command one of His servants to command another servant to do something, would it be a command to that act so that it would be mandatory for the second to do it? The case can be conceived in two ways:

1. The first commanded person is considered as an agent to deliver the Lord’s command to the second one. Doubtless the act is mandatory for the second in this case, and all commands of prophets to duty-bounds are of this kind.

2. The second commanded person is not considered as an agent but rather he is commanded to direct the command to the second person independently for himself, such as the ĥadīth in which the holy Imām says, “Command your children to perform the prayers when they are seven years old.” It is this kind that is a matter of dispute among Uşūlīs. The case would be the same where it is not clear of which kind that command is.

The justifiable opinion is that the command to command is apparent in its obligation upon the second person. In order to explain this more, notice that the command to command not as an agent can be issued in two ways:

2.1. The Lord’s purpose is performing of the act by the second commanded person and His command to command is a way to the actualization of His purpose. It is obviously clear that in such case His command to command is a command to the act itself.

2.2. The purpose of one who commands is merely issuance of the command by the commanded person, e.g., where a king commands his son to command his servant to do something while his purpose is not actualization of the act but rather to accustom his son to issue commands.

It is clear that in such case the command is actually not directed to the second person and he would not be considered disobedient should he not perform the act.

Now, should there be a contextual evidence designating one of those two states, one would doubtlessly be supposed to consider it. However, if there is no such contextual evidence, appearance of commands is that they are ways for actualization of the act. Add to this that commands in the second way have no room in religiously commandments.

CHAPTER 3: THE PROHIBITIONS (AL-NAWĀHĪ)

By prohibition is meant wish of the superior from the inferior to eschew and not to do an act, whether by such terms as “I prohibit you” or by any other mode; or, to be more precise, the superior’s dissuading and forbidding the inferior from doing an act whose requisite being wish of eschewing and not doing that act.

The prohibition is like the command in denoting necessity and obligation intellectually and not conventionally, precisely as we said and proved in the previous chapter. The only difference is that the purpose in the command is obligation of doing while in the prohibition is that of eschewing. Therefore, the prohibition is apparent in the unlawfulness as the command was apparent in the obligation.

It should be noted that by “act” in the definition of prohibition is meant what is conveyed by the infinitive, even though it may not be an existential affair. Thus, “Do not leave the prayers” is a prohibition while “Eschew drinking wine” is a command - though they mean “Perform the prayers” and “Do not drink wine” respectively.

The Desired in the Prohibition

There is a dispute among Uşūlīs specifically in the discussion of the prohibition over this issue whether the desired in the prohibition is merely not to do (nafs an lā taf‘al) or continence (kaff al-nafs). The difference between the two is that the former is a sheer non-existential affair while the latter is an existential one inasmuch as continence is a psychic act.

The justifiable opinion is the first. What caused some to believe in the second is that they thought that “to eschew,” whose meaning is to keep nonexistence of the prohibited act as it is, is not possible for the duty-bound, since it is pre-eternal, out of reach of power, and cannot become an object of wish.

However, it is quite plausible that the continence, which is a psychic act, would become an object of wish in the prohibition. The answer to this illusion is that impossibility of non-existence in the pre-eternity does not contradict its possibility in the continuity, for the power for existence implicates the power for non-existence. One can even say that the power for non-existence is based on the nature of the power for existence; otherwise, should non-existence be impossible in the continuity the existence would not be possible at all, since the free, powerful agent is the one who performs the act if he wishes and does not perform the act if he does not wish.

However, the truth is that such discussion is basically nonsense, for, as was said earlier, “wish” is not the meaning of prohibition so that it may be discussed whether the desired is eschewal or continence. The wish for eschewing is an implication of the prohibition; the meaning of prohibition is forbidding and dissuading - yea, to forbid an act implicates logically the wish for its eschewing.

Thus, the prohibition is basically directed to the act itself and there is no room for doubting whether the wish in the prohibition is for eschewal or continence.

Denotation of the Prohibition as to Permanence (al-Dawām) and Repetition (al-Takrār)

Like the dispute over the command, there is a dispute among Uşūlīs whether prohibition indicates once or repetition by the prohibition. The justifiable opinion is the same with the case of command; hence, the prohibition denotes neither repetition nor once - what is prohibited is the sheer nature of the act.

However, there is a rational difference between those two in the position of obedience, for the prohibition is obeyed by eschewing the actualization of the nature of the act and that would be realized only when all instances of the act are left, since if the duty-bound do the act even once he will not be considered an obedient servant. On the other hand, obedience to the command will be actualized by bringing about the first existence of instances of the nature of the act; the nature of obedience is not dependent upon more than doing the commanded act once. That difference is not due to the convention and denotation of those two, but rather is the rational necessity of the nature of prohibition and command.