An Introduction to Methodology of Islamic Jurisprudence (Uşūl al-Fiqh): A Shiite Approach

An Introduction to Methodology of Islamic Jurisprudence (Uşūl al-Fiqh): A Shiite Approach15%

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ISBN: 978-9-647741-23-1

An Introduction to Methodology of Islamic Jurisprudence (Uşūl al-Fiqh): A Shiite Approach
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An Introduction to Methodology of Islamic Jurisprudence (Uşūl al-Fiqh): A Shiite Approach

An Introduction to Methodology of Islamic Jurisprudence (Uşūl al-Fiqh): A Shiite Approach

Author:
Publisher: MIRI Press
ISBN: 978-9-647741-23-1
English

This book is corrected and edited by Al-Hassanain (p) Institue for Islamic Heritage and Thought


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CHAPTER 23: THE PRINCIPLE OF OPTION (AŞĀLA AL-TAKHYĪR)

The position of principality of option is where the generic compulsion is known while it is not known whether that compulsion is obligation or unlawfulness. In such case, either both sides are instrumental or one side is religiously, the former having, in turn, happened in one occurrence or multiple occurrences. Thus, we should deal with the problem in the following separate state:

1. The case where both sides are instrumental, in one occurrence; like the case where one definitely knows that he has sworn but one is doubtful whether one has sworn to do a certain permissible affair in a specific time (to do that affair in that time becoming obligatory in such case) or not to do it in the same specific time (to do that affair in that time becoming unlawful, then). As the summary-fashioned knowledge cannot make the known affair incontrovertible, because of impossibility of precaution in such case due to impotence of the duty-bound against actualizing both probabilities, its existence becomes as non-existence as to making “the definite obedience” obligatory or “the definite opposition” unlawful (as will be explained in detail in chapter 24). On the other hand, “the probable obedience” is inevitable. Hence, the intellect judges that the duty-bound has the option to do or to eschew, in the sense that he has actually no choice other than that.

Thus, this is an existential, involuntary option and not an actual or apparent precept made by the divine lawgiver; for the latter would be acquiring what is already acquired - something impossible. However, there is a dispute whether (1.1.) such thing can have an apparent permissibility, (1.2.) proofs of clearance embrace that, (1.3.) the unlawfulness should be given priority, for repelling evil is prior to acquiring interest, or (1.4.) none of those is possible.

As for the apparent permissibility, it cannot be made, for the duty-bound is certain of its non-existence, since he definitely knows that there is a compulsion on the part of the Lord either to do or to eschew in such a way that permissibility, which is permission to both doing and abandoning, is impossible.

Inclusion in the clearance is also impossible, for the option judged by the intellect is prior to exercising clearance, since that intellectual option is due to the ineffectiveness of summary-fashioned knowledge and effectiveness of clearance is doubtlessly subsequent to the ineffectiveness of summaryfashioned knowledge.

The third probability is also nonsensical, for should such probability of evil cause unlawfulness, it would be more plausible to do that as to the primary dubiety inasmuch as there exists no probability of good, while in such cases clearance is doubtlessly effective.

Thus, it became clear that none of such probabilities is considerable and there is an intellectual option in such cases.

2. The case where both sides are instrumental but in multiple occurrences, like the case where one definitely knows that one has sworn, but he is doubtful whether one has sworn to do a certain permissible affair every Friday, for instance, or to avoid doing it every Friday. Here, since the summaryfashioned knowledge is effective as to making the definite opposition unlawful, one is not allowed to do that certain affair on one Friday and to eschew it on another. On the other hand, observing “the definite obedience” is impossible, as explained in the first case. The result, therefore, would be an intellectual primary option, meaning that one is allowed to choose at the beginning either of those two probabilities, but one must observe that choice constantly without any change in mind.

3. The case where both sides are religiously, or one certain side is so. Here, since the definite opposition is possible, by doing or eschewing with the intention of proximity to God, it is definitely unlawful. Therefore, one is not allowed to do without the intention of proximity to God where the mandatory act is religiously or eschew without the intention of proximity to God where the unlawful act is so. Rather, one must do or eschew in accordance with the probable obedience. The result is that the intellectual option in this case is conditional upon not necessitating the definite opposition.

*****

1. Should one side be more important where canons are definitely known, like when one wonders whether the animate thing one wishes to shoot is a human being whose killing is unlawful or an animal whose killing is permissible, one has no option anymore and should take the more important side into consideration. However, in cases where canons are not known in a definite way and the probability is not that strong to make the precaution necessary, one still has the option no matter how important one side seems.

2. In cases where following the way of precaution is not possible in one act but is possible by repeating the act, such as performing the prayers both completely and shortened, the summary-fashioned knowledge would become incontrovertible and the precaution and observing the definite obedience would be mandatory.

CHAPTER 24: THE PRINCIPLE OF LIABILITY (PRECAUTION) (AŞĀLA AL-IĤTIYĀŢ or ISHTIGHĀL)

Contrary to the principle of clearance which was concerned with the case where one was doubtful whether or not one was charged with a burden, the principle of liability deals with the case where one definitely knows that there exists some burden but wonders what one is charged with, i.e., the doubt is concerning al-mukallaf bih. The criterion for the doubt concerning what one is charged with is that the doubt is (a) over the very object of the duty, i.e., performing or eschewing which is wished either itself or its opposite, or (b) the object of object, i.e., an external affair as it is doubted - when, of course, one has already known that it is externally actualized.

Another preliminary point is this discussion is that knowledge of something is either detailed or summary-fashioned. There is no difference between those two kinds of knowledge as to the nature of knowledge. The difference lies in the object of knowledge being known in the former in detail and in the latter in summary fashion. The summary-fashioned knowledge is a mixture of knowledge and ignorance, and is accompanied by two or more detailed doubts as to every object of knowledge. Now, the question is that (1) whether summary-fashioned knowledge makes a duty incontrovertible in such a way that its overlooking should cause punishment or is like preliminary doubts necessitating no incontrovertible-making, and, if the former, (2) whether such incontrovertiblemaking is like a prerequisite so that its effectiveness may be prevented even as to the definite opposition and duty-negating principles may be exercised as to all parts of summary-fashioned knowledge, or is like a cause so that giving permission to oppose it, neither absolutely nor as to the definite opposition, may be possible.

The justifiable opinion as to (1) is that the summary-fashioned knowledge makes its object incontrovertible, precisely as the detailed knowledge does. For there is no difference between those two kinds of knowledge but being in detail and in summary fashion, and that makes no variety as to their function. The criterion for the intellect’s judgment as to the liability and obligation of obedience is merely recognizing nature of the Lord’s command, without considering any other property. As for (2), the justifiable opinion is that incontrovertiblemaking is like causality as to both the definite opposition and the definite obedience; it does not allow occurrence of even a single opposition to “the known in summary fashion.” For such allowing necessitates contradiction: on the one hand the intellect judges that it is mandatory to avoid all parts as a preliminary to avoiding the unlawful existing among doubtful affairs, and on the other hand it allows committing some parts - an obvious contradiction.

Furthermore, it is treated by the intellect as the Lord’s permission to disobey Him, and this is obviously impossible.

It should be noted, however, that the summary-fashioned knowledge would become controvertible and would allow the duty-negating principles to be exercised in other parts in the two following cases:

1. Should there exist a practical principle or an authorized conjectural proof that proves existence of “the duty in accordance with the known in the summary-fashioned” in some parts, in such a way that it makes avoiding one part as a substitute for avoiding the known in summary fashion.

2. Should there exist a practical principle or an authorized conjectural proof that causes actual reduction or quasi-reduction of the summaryfashioned knowledge. The “actual reduction” (al-inĥilāl al-ĥaqīqī) is that the knowledge changes from summary fashion into detailed, such as the case where the duty-bound knows in summary fashion that one of the two bowls is religiously impure and then realizes that one certain bowl is so. Here, the other bowl would be treated as pure, since the dubiety concerning it has changed into a primary one. The “quasireduction” (al-inĥilāl al-ĥukmī) is that the summary-fashioned knowledge is subsistent, but it is no longer effective; such as the case where one of the two bowls which are parts of a summary-fashioned knowledge of religious impurity becomes part of another summaryfashioned knowledge of religious impurity with another bowl. The second summary-fashioned knowledge cannot affect the part in question whose obligation of avoiding had become incontrovertible by the first summary-fashioned knowledge, since it would be a kind of acquiring what is already acquired.

The third preliminary point is that parts of summary-fashioned knowledge are either two divergent things (mutabāyinain) or the least and the most of one thing (al-aqall wa’l-akthar), the dubiety in each being either concerning unlawfulness or obligation and as to the precept (which in turn is caused by lack of proof, ambiguity of proof, or contradiction of proofs) or the object. All these topics will be discussed in this chapter in an arrangement appropriate to any discussion.

And the final preliminary point is that observing precaution in all kinds of compulsory duty is preferable, both intellectually and religiously; for the intellect undoubtedly judges that to do whatsoever is probably desired by the Lord and to eschew whatsoever is displeasing to Him is absolutely good, and there are several ĥadīths confirming that. That is why observing precaution is conditional upon nothing but actualization of its object, i.e., the probability of duty, and precaution is constantly good even though it necessitates repetition of the act on the one hand and the duty-bound is capable of removing the dubiety through the quest for the duty on the other.

1. The Dubiety Being over Two Divergent i ngs

1.1. The Dubiety concerning Unlawfulness

1.1.1. The Dubiety concerning the Object

1.1.1.1. The Small-Scale Dubiety (al-Shubha al-Maĥşūra)

When the doubtful exists between two or more specified and limited things, the dubiety is called the small-scale dubiety. For instance, one knows that the liquid existing in one of these two or more specified bowls is religiously impure and its drinking, therefore, is unlawful.

The definite opposition. Is ignoring the summary-fashioned knowledge and committing all doubtful things, i.e., the definite opposition, in the small-scale dubiety allowed? The answer is negative. For it was proved earlier that the summary-fashioned knowledge is like a cause as to making the duty incontrovertible; hence, it is impossible to prevent its effectiveness as to making its object, which is definitely known, incontrovertible; either by the intellect (through the rule of reprehensibility of punishment without depiction, since the summary-fashioned knowledge is depiction) or by the religion (since no apparent precept can be made in this case inasmuch as following an apparent precept in a plane where the actual precept is preserved leads to contradiction). In other words, on the one hand one knows in summary fashion that the unlawful does exist among doubtful affairs and this makes the duty incontrovertible, and on the other hand nothing exists to allow one to eschew that knowledge. On the one side generality of the command to avoid religiously impure liquid includes this case, for peculiarity of the command to something which is known in detail has no support, on the second the intellect allows charging duty-bounds with avoiding an unlawful affair which exists among two or more things as well as punishing those who oppose such a duty, and on the third side no permission giving exits in the religion - on the contrary, all religious proofs of clearance which denote lawfulness of any of doubtful things do denote unlawfulness of what is known in summary fashion.

The definite obedience. Is committing one of the doubtful things in the smallscale dubiety allowed or is it mandatory to avoid all parts and to observe the definite obedience? The latter is justifiable, for it was proved earlier that the summary-fashioned knowledge is, like the detailed knowledge, a depiction and makes its object incontrovertible. In fact, the summary-fashion knowledge is a detailed knowledge as to its object; it is considered summary merely because its object is doubtful as to being included in the precept.

*****

Concerning the small-scale dubiety, the two following points should be borne in mind:

1. To avoid every doubtful thing becomes mandatory only when the duty as to the actual unlawful is incontrovertible in all assumptions, i.e., every one of doubtful things is such that should one assumedly be certain that it is the unlawful thing the duty as to avoiding would be incontrovertible. Otherwise, avoiding the other part would not be mandatory, such as the case where (a) there is no duty as to it at all, like when one knows that a drop of wine is dropped into one of the two bowls one of which is wine or religiously impure because of being mixed with some wine, (b) the duty is known in one of them but instead of being incontrovertible it is suspended until the duty-bound becomes capable of committing it, like when the duty-bound knows that the religiously impure thing has touched one of the two things he is not capable of committing one of them specifically, and (c) to commit one particular part is intellectually possible but the duty-bound is considered strange to that due to circumstances, like when one doubts whether the religiously impure bowl is this or the one which is not applicable to one. The reason is that in (a) there is no knowledge of occurrence of duty as to avoiding that which is touched by the drop, for had the religiously impure bowl touched the drop no duty as to avoiding would have been generated (inasmuch as it has already been impure having the command to be avoided); hence, the doubt as to obligation of avoiding the other part is a doubt concerning the duty and not concerning what one is charged with, and in such cases the principle of clearance is exercised; in (b) the dubiety is over existence of an incontrovertible duty and not over something with which one is charged in an incontrovertible manner, and in (c) although the duty as to avoiding the other bowl is intellectually possible, it is not customarily incontrovertible, and to direct an incontrovertible duty as to avoiding something with which the duty-bound is not supposed to deal is not plausible. That is why should some parts of the summary-fashioned knowledge not be supposed to be dealt with on the part of the duty-bound, the summaryfashioned knowledge would no longer be effective as to them. Such case may occur where (c.1) the duty-bound has customarily no power over it as it is in a country very far from his place, (c.2) he has no religious power over it as it is owned by another person, or (c.3) it is customarily very unlikely that he will be obliged to use it, as in the case of a soil one is not customarily going to use it for bowing down in one’s prayers.

2. It is not differentiated in the obligation of avoiding doubtful affairs between the case where they are of one kind, such as where the duty-bound knows that the liquid in one of these bowls is religiously impure, and where they are of different kinds, such as where he knows that either the liquid in this bowl is religiously impure or the liquid in that bowl is expropriated; for the proofs mentioned earlier include the latter as well.

1.1.1.2. The Large-Scale Dubiety (al-Shubha Ghair al-Maĥşūra)

There are several definitions presented for the large-scale dubiety most of which suffering from incorrectness. However, we mention some of them without dealing with their problems:

1. It is treated by people as being large-scale dubiety, such as one in one thousand, 2. The parts are abundant in such a way that counting them in a short time, or absolutely, is difficult, 3. The parts are abundant in such a way that the wise do not take the summary-fashioned knowledge existing among them into consideration and treat it as no knowledge, 4.

Abundance of parts causes hardship and difficulty with the definite obedience, and it is clearly known in the Islamic jurisprudence that the hardship removes duties, 5. Abundance of parts is that much that weakens the probability in each of them.

Thedefiniteopposition.Accordingtowhatwasprovedearlierthatthesummaryfashioned knowledge is like cause and makes its object incontrovertible, there will be no difference between the small-scale and the large-scale dubieties and the definite opposition is unlawful in this kind as well.

The definite obedience. Although there is no difference between the smallscale and the large-scale dubieties, as said above, there is a very considerable celebrity, very close to the level of consensus, among Shī‘a scholars that the definite obedience in the large-scale dubiety is not mandatory. Furthermore, there are many ĥadīths which confirm that, such as words of the fifth Imām, al-Bāqir, in response to Abu l-Djārūd’s remarks that he saw some people using organs of dead animals in making cheese: “Should all that exists on earth be unlawful because of a certain place in which people use organs of dead animals in making cheese?! If you know that it is made by organs of dead animals do not eat, but if you do not know, buy, sell, and eat.” That is why we hold that in the large-scale dubiety, the definite obedience is not mandatory.

*****

Concerning the large-scale dubiety, the three following points should be borne in mind:

1. Should parts of that which is doubted among the large-scale dubiety be abundant in such a way that the ratio between all of them to the doubtful things and one thing to the small-scale dubiety be the same (sometimes called the dubiety of abundant in the abundant), such as the case where one knows that flesh of five hundred of fifteen hundred sheep of a flock are unlawful, the case would be treated as the small-scale dubiety.

2. Proofs proving non-obligation of precaution in the large-scale dubiety do not denote that all parts can be committed in the dubiety concerning unlawfulness and all parts can be eschewed in the dubiety concerning obligation. Rather, the amount one knows in summary-fashioned knowledge must be eschewed in the dubiety concerning unlawfulness and done in the dubiety concerning obligation.

3. The summary-fashioned knowledge not being incontrovertible in the large-scale dubiety does not mean overlooking the doubt and treating it as nonexistence. It means that the other unspecified part is treated as a substitute for what is known in summary fashion: to be done in the dubiety concerning obligation, and be eschewed in the dubiety concerning unlawfulness.

1.1.2. The Dubiety concerning the Precept

An example of this kind is unlawfulness of the third adhān on Fridays whose determination is a matter of dispute. Precisely as in the dubiety concerning the object, the definite opposition is unlawful and the definite obedience is mandatory here.

1.2. The Dubiety concerning Obligation

1.2.1. The Dubiety concerning the Precept

Such dubiety (which is caused by lack of proof, ambiguity of proof, or contradiction of proofs) occurs where it is doubted whether something is mandatory or is characterized by other precepts save unlawfulness, such as the doubt whether in the Occultation time one must perform żuhr or djumu‘a prayers on Fridays.

1.2.1.1. Because of Lack of Proof

The definite opposition and the definite obedience. The definite opposition, i.e., performing neither żuhr nor djumu‘a prayers on Fridays in the Occultation time, is absolutely unlawful, precisely because of what was explained on the dubiety concerning unlawfulness. For the same reason, the definite obedience is also mandatory, and in such case the duty-bound must perform both prayers on Fridays.

1.2.1.2. Because of Ambiguity of Proof

The definite opposition and the definite obedience. The same reason proves that the definite opposition is unlawful and the definite obedience is mandatory.

Such duty is even clearer here, for although the proving proof is ambiguous, the very precept is addressed to duty-bounds in a detailed fashion and there is no ambiguity in the addressing per se.

1.2.1.3. Because of Contradiction of Proofs

According to ĥadīths, which encounter no opposition in this connection, the duty-bound has the option to act according to any of the proofs in such cases.

1.2.2. The Dubiety concerning the Object

An example of this kind is the case where one knows that one has forgotten to perform one of daily prayers but wonders whether it was noon or afternoon prayers.

The Definite Opposition and the Definite Obedience. The definite opposition is unlawful and the definite obedience is mandatory, and the reasoning is the same. Thus, in the example mentioned above, one must perform both noon and afternoon prayers.

2. The Dubiety Being over the Least and the Most of One Thing

This dubiety is, in turn, of two kinds: “independing” (istiqlālī) and “relational”(irtibāţī). An example of the former is where one knows that one has not performed a number of one’s daily prayers but doubts the number of them and wonders whether they were six, for instance, or four (in the dubiety concerning obligation), or one knows that one ejaculated and knows that recitation of Qur’ānic sūras containing specific verses upon the recitation of which one must bow down is unlawful in such cases but wonders whether recitation of the whole sūra is unlawful or only that of the verse (in the dubiety concerning unlawfulness). An example of the latter is that one knows that performing prayers is mandatory but wonders whether sūra, i.e., recitation of one sūra after sūra al-ĥamd, is part of prayers (in the dubiety concerning obligation), or one knows that sculpturing an animating objects is unlawful but wonders whether sculpturing the whole body of such objects is so or making some parts is also unlawful (in the dubiety concerning unlawfulness).

The difference between the two is that the duty in the latter is one in case of obligation of the most but obedience of the least must be realized within the most, while in the former the duty is multiple causing multiplicity of reward and punishment in case of obedience and disobedience, obedience of the least being realized even though not being done within the most.

2.1. The Independing Least and Most

In all cases of this kind (i.e., the dubiety concerning the precept as to both unlawfulness and obligation caused by either lack of proof, ambiguity of proof, or contradiction of proofs as well as the dubiety concerning the object whether concerning unlawfulness or obligation) the clearance from liability to the most will undoubtedly be exercised, for addressing in such cases is reduced to some independent addresses which causes actual reduction of the summary-fashioned knowledge to a detailed duty as to the least and a primary doubt as to the most.

2.2. The Relational Least and Most

2.2.1. The dubiety concerning the precept whether as to unlawfulness or obligation, caused by either lack of proof, ambiguity of proof, or contradiction of proofs

2.2.1.1. The dubiety over object of the duty

2.2.1.1.1. The dubiety over parts of a composite commanded act. An example of this kind is to doubt whether sūra is part of prayers (in which case the prayers without sūra being the least and with sūra being the most). In such cases, the clearance from liability to the most will undoubtedly be exercised, for the summary-fashioned knowledge, which is the cause of obligation of precaution, is reduced to a detailed duty as to the least and a primary doubt as to the most.

However, the least is undoubtedly mandatory, for there is a detailed knowledge as to its obligation, no matter such obligation being independent or within the most - should the most be mandatory.

2.2.1.1.2. The dubiety over conditions of and impediments to the commanded act. Precisely because of the same reasons, what is exercised here is the principle of clearance.

2.2.1.1.3. The dubiety in analytical composite affairs. This means that the affair in question is composed of genus and differentia. An example of this kind is “animal” in “feed an animal,” where one doubts whether the absolute “animal” is commanded to be fed or the qualified “rational animal,” i.e., human being which is composed of animal (genus) and rational (differentia).

It should be noted that the doubtful additional property is sometimes (a) intellectually among constituents of what it is a property of, such as differentia as to the genus, since genus cannot be found externally without differentia and therefore it must be actualized within a species should it become object of a duty, (b) customarily among constituents of what it is a property of, as in “Buy a horse for me” and then “Buy an Arabian horse for me,” in which being Arabian is not an intellectual constituent of the horse but Arabian is customarily considered species other than Turkmen, for instance, horse, and (c) not among constituents of what it is a property of, neither intellectually nor customarily.

In (a), since the external existence is considered in the duty and genus alone has no external existence and therefore cannot be actualized, genus together with one of the differentiae must be the object of duty. The result is that when feeding an animal becomes mandatory, it becomes an optional mandatory as to the differentiae; hence, the dubiety would be over determination and option and not over the least and the most. In other words, since genus alone is not, and cannot be, object of the duty so that it may be considered the definite amount, but rather in the absolute command, such as “feed an animal,” the object of obligation is animal with one of the differentiae in an optional manner, and in the qualified command, such as “feed a rational animal,” it is animal with a definite differentia - the dubiety becomes over determination and option in which determination should principally be adopted, and not over the least and the most in which clearance as to the property is exercised.

In (b), the intellect considers “the definite amount” and “the known in a detailed way” existent; hence, the summary-fashioned knowledge is reduced and clearance as to the doubtful additional is exercised; for the property is not an intellectual constituent on the one hand and common consent cannot be taken into consideration in this connection on the other.

In (c), there is no problem with exercising the clearance as to the doubtful additional property.

2.2.1.2. The dubiety over causes

It is quite well known in the Islamic law that some specific kinds of washing are mandatory for the sake of religious purity. Now, the question is that whether the commanded in such cases is the purification caused by such washings and washings themselves are only commanded because they cause purification, or they are the very actual commanded. On the basis of the former, the commanded affair is a simple designation and specific kinds of washing are merely causes of actualization of that designation. This is an example of this topic.

The prominent opinion among Shī‘a scholars is that where it is doubted whether something is taken as part or condition in a cause the clearance would absolutely not be exercised, no matter such causes are religious, intellectual, or customary; for charging with the simple designation is known in detail and to doubt whether something is considered as a condition or part in its actualization refers to the doubt whether or not obedience will be actualized without that thing, and it is absolutely clear that in such cases it is the principle of liability that must be exercised and not that of clearance.

2.2.2. The dubiety concerning the object whether as to unlawfulness or obligation

This kind of dubiety concerning the object of duty is possible and occurs where the object of duty is related to the external things, such as the command to respect religious scholars. Since number of religious scholars differs from time to time and place to place, the object of duty may become more or less; for the proposition is reduced to multiple propositions according to the number of religious scholars. Now, in case of doubting whether certain individual is a religious scholar, should he be so the object of duty would become more - and this is the most - and should he not be so the object of duty would become less - and this is the least. Hence, to doubt whether certain individual is a religious scholar leads to the dubiety concerning the object of duty being between the least and the most. A juristic example of this kind is to doubt whether cloth of one who is performing the prayers is made of parts of an animal whose flesh is prohibited to be eaten - a case where the prayers is annulled.

It is obviously clear that the clearance would be exercised here; for the doubt is over existence of another proposition, i.e., whether the doubtful individual is an instant of religious scholars, and it was proved earlier that in all cases where reduction as to the doubtful instance occurs the clearance is undoubtedly exercised. Thus, in the example mentioned above, one is allowed to perform one’s prayers in such a cloth.

CHAPTER 25: THE PRINCIPLE OF CONTINUITY OF THE PREVIOUS STATE (AŞĀLA AL-ISTIŞĤĀB)

When the duty-bound becomes certain of a precept or an object, then his precious certainty changes into uncertainty and he doubts subsistence of what he was certain of previously, he wonders what to do: should he act in accordance with what he was certain of, or should he not act so? The problem is that in both cases the duty-bound fears opposition of the actuality. However, there is a juristic principle in this connection which removes such perplexity: the principle of continuity of the previous state (aşāla al- istişĥāb). The Arabic term istişĥāb is derived from şuĥba meaning accompanying somebody or taking something with oneself. The expression, therefore, means to take what one has been previously certain of with one to the present time. That is why the best definition of istişĥāb is “to judge that what has previously been is subsistent.”

Before dealing with opinions on the authority of istişĥāb, we should expound what it really is.

Constituents of Istişĥāb

In order for istişĥāb to be called istişĥāb or to be covered by the coming proofs of its authority, the following pillars should exist:

1. Certainty. By this is meant certainty of the previous state, whether it is a precept or an object having a precept.

2. Doubt. By this is meant doubt over subsistence of the definite affair.

It should be noted that the doubt includes both real doubt and invalid conjecture.

3. Conjunction of certainty and doubt, in the sense of simultaneous occurrence of certainty and doubt. This does not mean that origins of those two are simultaneous; for sometimes the origin of certainty is before that of doubt, such as where one is certain on Thursday that one’s cloth is religiously pure and on Friday doubts whether it is still pure or has become impure; sometimes the origin of certainty is after that of doubt, such as where one doubts on Friday whether one’s cloth is religiously pure and this doubt continues until Saturday when one becomes certain that one’s cloth has been pure on Thursday; and sometimes origins of those two occur simultaneously, such as where one becomes certain on Friday that one’s cloth has been religiously pure on Thursday and at the same time on Friday doubts whether that purity has been subsistent until Friday - all of these being subject to istişĥāb. This component differentiates istişĥāb from “the rule of certainty” which is absolutely different and will be discussed later.

An example of the latter is where one is certain that one’s cloth is religiously pure on Friday and then on Saturday one doubts whether one’s cloth was pure on Friday. Here, the question is not subsistence of purity; it is casting doubt upon the very previous certainty and changing the very certainty into doubt.

4. Unity of objects of certainty and doubt. Ignoring the time, this means that the doubt is over the very thing that has been the matter of certainty. This component differentiates istişĥāb from “the rule of origin and impediment.”

5. The time of the definite affair preceding that of the doubtful one.

This means that the doubt must be over subsistence of what has already been existent in certain fashion. Should the time of the definite affair be subsequent to that of the doubtful one, which is called reverse istişĥāb (alistişĥāb al-qahqarā), it would not be an authoritative practical principle.

Proofs of Authority of Istişĥāb

As for the opinions on the authority of istişĥāb, at least twelve ones are known most of which differentiating between some cases and others. However, since this is an introductory work on the one hand and we will prove absolute authority of istişĥāb on the other, there is no need to deal with those opinions.

Hence, we will discuss proofs of absolute authority of istişĥāb straight away.

1. The conduct of the wise

Doubtless the wise (i.e., human beings as they are intellectual creatures), though having various tastes and approaches to affairs, treat something they have been certain of as subsistent in case of doubt over that until they make sure that the previous state is changed. On the other hand, the divine lawgiver has not prohibited from following that conduct. This reveals that He has recognized and confirmed that conduct; for He is among the wise, even chief of the wise, and therefore has no other way in this connection - otherwise He would have announced and depicted His specific way ordering believers to follow it (as was explained in detail in chapter 19).

2. Ĥadīths

Several ĥadīths, which are the chief proofs of authority of istişĥāb, are argued by Uşūlīs of which we discuss only two:

2.1. Zurāra’s first authentic ĥadīth

Zurāra, who was a great companion of the fifth and sixth Imāms, narrates that:

I asked Imām, “A man who has performed minor ablution sleeps. Do one or two winks of sleep make another minor ablution mandatory?”

Imām replied, “O Zurāra, sometimes eyes sleep while the heart and ears have not slept. When eyes and ears sleep, performing minor ablution [for prayers and the like] becomes mandatory.”

I asked, “If something moves near him but he does not realize [should he perform minor ablution again]?”

Imām replied, “No, until he becomes certain that he has slept. Until a clear sign [of sleeping] comes. Otherwise, he is certain of his minor ablution, and he should never break the certainty by doubt. Rather, he breaks certainty by another certainty.”

To argue this ĥadīth, it is said that the predicative sentence “he is certain of his minor ablution” is in fact the consequent in the conditional sentence “if he is not certain that he has slept, then his certainty of his minor ablution subsists,” in the sense that what can remove the certainty of minor ablution, i.e., certainty of sleeping, has not occurred. This is a preliminary to depict that the doubt does not remove the certainty of minor ablution and it is the certainty of sleeping that can remove it. In other words, doubt as it is doubt cannot remove and break the certainty and it is only the certainty that can break the certainty.

Thus, “he is certain of his minor ablution” is as the minor premise and “he should never break the certainty by doubt” is as the major premise. This major premise denotes the rule of istişĥāb, i.e., continuity of the previous certainty and not breaking it by the coming doubt, and conveys that no previous certainty is broken by a coming doubt.

2.2. Zurāra’s second authentic ĥadīth

Again Zurāra narrates that:

I asked Imām, “Some drops of blood or semen touched my cloth. I marked my cloth to wash it when I found water. Then, the time of prayers came and, forgetting that there was something wrong with my cloth, I performed my prayers. Then, I remembered that. [What should I do?]”

Imām replied, “Wash it and repeat your prayers.”

I asked, “If I did not know where it was dropped while I was certain of its dropping on my cloth, but when I looked for it I could not find it and it was only after the prayers that I found it [what should I do]?”

Imām replied, “Wash it and repeat your prayers.”

I asked, “If I thought that it was dropped but I was not certain of that and when I looked I found nothing, then I performed my prayers and I saw it [What should I do]?”

Imām replied, “Wash it but do not repeat your prayers.”

I asked, “Why is it so?”

Imām replied, “Because you were certain of your purity and then doubted that, and you are never supposed to break the certainty by the doubt.”

I asked, “If I were certain that it was dropped on my cloth but I was not certain where it was dropped so that I wash it?”

Imām replied, “Wash the area where you think it is dropped so that you become certain of your purity.”

I asked, “Would it be mandatory to quest for the impurity if I doubted whether or not some impure object has touched it?”

Imām replied, “No. By doing that you merely wish to remove your psychic doubt.”

I asked, “If I saw it while I was in prayers?”

Imām replied, “Break the prayers and repeat it if you were doubtful of some part of your cloth and you saw it…..”

Two phrases of ĥadīth are argued for the authority of istişĥāb:

a. “Because you were certain of your purity and then doubted that….,” since by certainty of purity is meant certainty of purity before doubting whether or not an impure object touched the cloth.

b. “…And you are never supposed to break the certainty by the doubt,” since by the certainty is meant the certainty as it is certainty and not a specific one, i.e., certainty of purity alone; for treating the doubt as countering the certainty and attributing “not to break” to the doubt clearly reveals that the criterion for unlawfulness of breaking is the aspect of certainty as it is certainty and not that of certainty qualified by purity as it is qualified by purity.

CONCLUSION. Considering denotations of all proofs, we come to this conclusion that istişĥāb is an authorized practical principle with regard to all kinds of doubts which are of previous states, whether as to objects or precepts.

Secondary Discussions of Istişĥāb

The Rule of Certainty (Qā‘ida al-Yaqīn)

This rule, in which the doubt is called the penetrative doubt (al-shakk al-sārī), deals with the case where one doubts the very thing one was certain of. For instance, one is certain on Friday that one’s cloth is religiously pure, then on Saturday one doubts whether one’s cloth was religiously pure on Friday. In such case, the doubt penetrates into Friday and the certainty of Friday changes into doubt. Such case is not included in the proofs of authority of istişĥāb, for it is not “to judge that what has previously been is subsistent,” as nothing has previously been certain. On the other hand, there is no other proof in favor of this rule; that is why it cannot be treated as an authoritative proof of religious precepts.

Continuity of the Previous State of the Universal (Istişĥāb al-Kullī)

By istişĥāb al-kullī is meant istişĥāb of the universal where one is certain of its existence within one of its instants but later on doubts subsistence of the very universal. This doubt over subsistent of the universal within its instances can be considered in three ways - called varieties of istişĥāb al-kullī:

1. The doubt is over subsistence of the universal because of doubting subsistence of the very instance one was certain of.

2. The doubt is over subsistence of the universal because of the doubt over determination of the instance one was certain of, in the sense that the instance is either definitely subsistent or is definitely removed. In this case, one is summarily certain of existence of an instant of the universal instants and thereby is certain of existence of the universal within that, but one is doubtful whether that actual instant has a long lifespan and therefore is definitely subsistent in the second time or has a short lifespan and therefore is definitely removed in that time - that is why one is doubtful about subsistence of the universal.

An example of this variety is where one observes something in one’s cloth and becomes certain in summary fashion that it is an impure object, but one does not know whether it is urine or semen and then performs minor ablution. Here, one is certain of the universal defilement within that instance: if it is urine, the defilement is minor and is definitely removed by minor ablution, but if it is semen, the defilement is major and is definitely not removed by minor ablution. Could the universal istişĥāb be exercised, the universal defilement would be treated as being subsistent and thereby effects of universal defilement, such as unlawfulness of touching letters of the holy Qur’ān, would be actualized. However, effects of minor or major defilement in particular, such as unlawfulness of entering mosques, could not be realized.

3. The doubt is over subsistence of the universal because of the doubt over existence of another instant instead of the one whose generation or removing is definitely known, i.e., the doubt is caused by the probability of existence of another instant. In this case, should the second instant actually be existent, the universal would be subsistent through it; otherwise, the universal would become non-existent due to the annihilation of the first instant.

This variety is of two kinds:

3.1. It is probable that the second instant is originated in the vessel of existence of the first one, and 3.2. Probable origination of the second instant is simultaneous with the removal of the first, which, in turn, may be actualized through changing the first into the second or mere accidental simultaneity of removal of the first and origination of the second.

As for the authority of istişĥāb al-kullī:

In (1) there is no dispute among Uşūlīs that istişĥāb is exercised as to both the universal and instant, in the sense that religious effects of both the universal and the instant with its individual characteristics should be actualized.

In (2) istişĥāb is exercised as to the universal, but not as to the instant.

Therefore, in the example mentioned earlier touching letters of the holy Qur’ān is unlawful because of istişĥāb of the universal, but entering mosques is permissible because of principle of non-existence of contribution of individual characteristics.

In (3), istişĥāb is absolutely not exercised. For it is obviously clear that, first, unity in kind is not sufficient in istişĥāb inasmuch as it means subsistence of something externally. By istişĥāb al-kullī is not meant istişĥāb of the very quiddity as it is quiddity, since it is nonsensical; rather, istişĥāb of the quiddity as it has an external existence, in order to actualize its actual precepts. Secondly, it is also clear that the relation between universal and its instants is the same with the relation of fathers and children, for the universal has no existence but accidentally and through its instants. In (3), a portion of the universal is actualized but it is certainly removed, and origination of the other portion of the universal in the second instant has been doubtful from the very beginning.

Thus, the definite affair and the doubtful affair are not the same, and a major constitute of istişĥāb is missing.

This is the difference between c and b, for in b subsistence of the very portion of the universal, which is really actualized and certainly originated, is doubted, as it is not known whether it is the one attributed to the long instant or the short one.

CHAPTER 4: IMPLICATURES OF SENTENCES (AL-MAFĀHĪM)

The Arabic term mafhūm (pl. mafāhīm) is used for three different expressions the third of which being meant in this discussion. The first is used to denote “meaning,” and the second to denote “concept” as the opposite of instance (mişdāq). The third, however, is used merely in uşūl al-fiqh to convey a specific meaning equivalent to implicature of a sentence. This meaning is used in opposition to manţūq (the uttered) which means what is denoted by the sentence per se in such a way that the uttered sentence is bearing that meaning and is a frame for it. By mafhūm, therefore, is meant what the sentence is not bearing and does not denote comprehensively; rather, it is an “obvious implicature in the most particular sense” of the sentence. (An implicating conceiving of whose implicated would implicate conceiving of itself is called “obvious implicating in the most particular sense,” as in “two being twice as one” in which the very conceiving of two implicates immediate conceiving of its being twice as one.)

Hence, mafhūm is specifically used for the implicative denotation (al-dalāla aliltizāmiyya). Let us take an example in order to give a clear insight of manţūq and mafhūm at the beginning of our discussion. Suppose that the jurist has said, “If the water is pure, one can make ablution with it.” In this sentence, manţūq is the content of the sentence, i.e., lawfulness of making ablution with pure water, and mafhūm, should such a sentence have mafhūm, is unlawfulness of making ablution with impure water.

Hence, manţūq can be defined as “a precept denoted by the word where it is uttered,” and mafhūm as “a precept denoted by the word where it is not uttered.” Here, by the precept is meant precept in the most general meaning and not one of the five-fold burdensome precepts. Sometimes the phrase “nonexistence where non-existence” (al-intifā’ ‘ind al-intifā’) is used for mafhūm, meaning non-existence of the judgment where the condition, qualifier, and the like become non-existent.

As was seen, there is no single word to convey precisely that specific meaning of mafhūm in English; hence, we use the Arabic term in this connection emphasizing that wherever the Arabic term mafhūm is used in this book it is only this specific meaning which is intended. Although this is not exactly the case with manţūq and it can be conveyed by the term “the uttered,” we use the Arabic term in our discussion for the sake of consonance.

Before anything else, two important points should be borne in mind with regard to the discussion of mafhūm:

1. When the matter of dispute is entitled “dispute over authority of mafhūm” it questions whether a specific kind of sentence has mafhūm or not.

It does not question whether or not mafhūm of a specific kind of sentence which has mafhūm is authorized- as is the case with authority of ĥadīths. For instance, where mafhūm of condition is disputed it means that whether such sentence has mafhūm and denotes preclusion of precepts when the condition is precluded or not; it does not mean that such sentence has mafhūm but Uşūlīs dispute whether or not that mafhūm is an authoritative proof.

2. The dispute is over cases where no contextual evidence exits. Should there be any contextual evidence the sentence would doubtlessly be treated the way the evidence designates. Thus, the dispute is over whether the type of conditional sentence, for instance, has mafhūm when it is void of any specific evidence or not.

Varieties of Mafhūm

Mafhūm is generally divided into two types: accordant (al-mafhūm al-muwāfiq or mafhūm al-muwāfaqa), and disaccording (al-mafhūm al-mukhālif or mafhūm al-mukhālafa).

1. Accordant is the one in which the type of precept accords with the precept in the manţūq, i.e., if the precept in the manţūq is obligation it is obligation in the mafhūm, if it is unlawfulness in the former it is unlawfulness in the latter, and so forth - as in the Qur’ānic verse: “Do not say to them (your parents) Fie,” (17: 23) that denotes prohibition of assault and battery which are more insulting and painful than to say “Fie” which is explicitly declared unlawful in the verse.

There is no dispute over authority of accordant mafhūm in the sense that the precept transmits to that which has priority in terms of motive of the precept.

2. Disaccording is the one in which the type of precept disaccords with the precept in the manţūq. There are six instances of this kind with which we should deal separately and in detail.

1. Mafhūm of the Condition (al-Sharţ)

Doubtless manţūq of the conditional sentence conventionally denotes that the consequent is dependent upon the antecedent. However, conditional sentences are of two kinds:

1.1. That which is made to depict the object of judgment. In this kind, the antecedent is the very object of the judgment; the judgment in the consequent is dependent upon the condition in the antecedent in such a way that consideration of the judgment without condition is implausible.

For instance, in this Qur’ānic verse: “And do not constrain your slavegirls to prostitution if they desire to live in chastity,” (23: 33) supposition of constraining to prostitution is implausible unless when the desire of slavegirls to live in chastity is assumed.

All Uşūlīs are in agreement that such conditional sentences have no mafhūm, since non-existence of the condition means non-existence of the judgment; hence, to judge that the consequent does not exist is nonsensical except in the way of “negative by non-existence of the object”: it is not to judge that consequent does not exist, it is non-existence of the judgment. Thus, there is no mafhūm for the verse in question and it cannot be said that if your slave-girls did not desire to live in chastity you should constrain them to prostitution.

1.2. That which is not made to depict the object of the judgment. In this kind, the antecedent is not the very object of the judgment and the judgment in the consequent is dependent upon the condition in the antecedent in such a way that its consideration without condition is plausible. For instance, when one says, “If your friend did you a favor, do him a favor,” to do one’s friend a favor is not logically dependent upon one’s friend’s doing one a favor, since one can do one’s friend a favor whether the latter does the former a favor or not.

It is this kind of conditional sentence that is a matter of dispute in this discussion. It refers to the dispute whether or not the conditional sentence denotes non-existence of the judgment where the condition becomes non33

existent, in the sense that whether or not it is understood from the nature of making the judgment conditional upon the condition that the type of precept, obligation for instance, would become non-existent should the condition become non-existent.

Concerning mafhūm of the condition, there are two opinions: having mafhūm and not having mafhūm, and the justifiable one is the former. Before dealing with arguments, we have to discover the criterion for mafhūm of the condition.

The Criterion for Mafhūm of the Condition

In order to have mafhūm, conditional sentence needs to denote three subsequent affairs, whether conventionally or by absoluteness, as follows:

1. To denote that there is a relation and implication between the antecedent (al-muqaddam) and the consequent (al-tālī).

2. To denote that, in addition to relation and implication, the consequent is dependent upon, subsequent to, and subject to the antecedent; hence, the antecedent is a cause for the consequent.

3. To denote that, in addition to those two, the antecedent is the exclusive cause, in the sense that there is no parallel cause upon which the consequent can be dependent.

That the mafhūm of the conditional sentence is dependent upon those three affairs is obviously clear; for should the sentence be occasional, or the consequent not be dependent upon the antecedent, or be dependent but not in an exclusive way, the consequent would not become non-existent where the antecedent does not exist. The only thing to be proved is that the sentence is apparent in those three-fold affairs, whether conventionally or by absoluteness, so that it can have mafhūm.

The truth is that the conditional sentence is apparent in those affairs, conventionally in some and by absoluteness in others:

1. As for the relation and existence of necessary connection between the two, it appears that it is conventional - because of tabādur. It should be noted, however, that it is not because of articles of condition being specified to that so that one may deny it; it is necessitated by the compound disposition of the conditional sentence as a whole.

2. As for the consequent being dependent upon the antecedent, no matter what kind of dependence it might be, it is also conventional; but not in the sense that the sentence is specified twice - one for the implication and another for the dependence - but rather in the sense that it is specified once for the specific relation which is dependence of the consequent upon the antecedent. Again, the reason is tabādur of dependence of the consequent upon its antecedent, as the conditional sentence denotes that the antecedent is situated in the position of supposition and in case of its actualization the consequent will be actualized secondarily, i.e., consequent follows the antecedent in the actualization. In other words, what immediately comes to the mind from the conditional sentence is that its consequent would necessarily be actualized should its condition be actualized. This is obviously clear and cannot be denied, except by someone who is obstinate or negligent, for it is the meaning of dependent-making of something - which is the content of conditional sentence. The conditional sentence has no content other than that; that is why its first clause is called subordinate clause and antecedent and its second clause principle clause and consequence.

3. As for exclusiveness of the condition, it is by absoluteness; for had there been another condition to substitute that one or to be added to it so that they may both make one compound condition, there would have necessarily been an additional depiction either by “or” in the first state or “and” in the second. Now, where dependent-making of the consequent upon the condition is left absolute, it reveals that the condition is independent and inclusive; it has neither a partner nor a substitute or parallel. Otherwise, the wise speaker was mandatorily supposed to depict that where he was in the position of depiction.

In short, there is no doubt that the conditional sentence is apparent in having mafhūm, except in cases where it is made to depict the object of the judgment or there is contradictory contextual evidence. This can clearly been proved by the following ĥadīth of the sixth Imām:

Abū Başīr asked, “A lamb is slaughtered and blood came out, but no part of its body moved.”

Imām replied, “Do not eat. Ali said, ‘If the leg jerked or the eye blinked, eat.’”

It is clear that Imām’s appeal to Imām Ali’s words cannot be justified except when the conditional sentence has mafhūm, i.e., “If the leg did not jerk or the eye did not blink, do not eat.”

Conditions Being Multiple While Consequents Being One

What should one do where there are two or more conditional sentences in which conditions are multiple but consequents are one? The case in question may be of two kinds:

1.The consequent is religiously unrepeatable, as in two ĥadīths concerning the prayers when one is travelling: “If the call to prayers (adhān) is not heard, perform your prayers shortened,” and “If ramparts are not seen, perform your prayers shortened.”

2.The consequent is religiously repeatable, as in: “If you had sexual intercourse, make major ablution,” and “If you touched a dead body, make major ablution.”

Since the discussion in either of these two kinds differs from the other, we will discuss them separately:

1. In this kind, contradiction between proofs would appear should the conditional sentence have mafhūm - though between mafhūm of each and manţūq of the other. For instance, if one is in a place where one does not hear the call to prayers but sees the ramparts, according to manţūq of the first one should perform one’s prayers shortened while according to mafhūm of the second one should not do so. To solve this problem, one may take one of the two following ways:

1.1. To qualify both conditions with respect to their appearance in “independence in the causality” - an appearance caused by that absoluteness which is contrary to qualification with “and.” Hence, the condition would, in fact, become a compound of two conditions each of them being part of the cause. Thus, the two sentences will be like one whose antecedent is the compound of two conditions: “If the call to prayers is not heard and ramparts are not seen, perform your prayers shortened.” In that case, the two sentences may have one mafhūm which is non-existence of both conditions or one of them - as if they were one sentence.

1.2. To qualify both conditions with respect to their appearance in “exclusiveness” - an appearance caused by that absoluteness which is contrary to qualification with “or.” Hence, the condition would be either of them, or, if possible, an inclusive affair covering both of them either of them being its instance.

Now, the question is that which of those two ways is more justifiable. There are two opinions in this connection. The more justifiable one is to take the second way; for the contradiction is originated by appearance of two conditional sentences in exclusiveness which necessitates their appearance in mafhūm -

something, in turn, causing contradiction of manţūq of each to mafhūm of the other, as explained earlier. Therefore, one should abandon appearance of each of them in the exclusiveness - of course, to the extent denoted by manţūq of the other, since appearance of manţūq is stronger. As for the appearance of each sentence in the independence, it has no contradictory side so that one should abandon it.

Now that the second opinion is preferred, each condition will be independent in the efficacy. Thus, should one condition be actualized singly the judgment will be proved by it; and should both conditions be actualized, if they are actualized subsequently the judgment will be proved by the first, and if they are actualized simultaneously the judgment will be proved by both of them and they are treated as one condition - since it is assumed that the consequent cannot be repeated.

2. This kind is, in turn, of two kinds:

2.1. It is proved that each condition is part of the cause. Doubtless, the consequent is one and will be actualized when both conditions are realized.

2.2. It is proved, either by another proof or by the appearance of the same proof, that each condition is an independent cause. Here, whether or not the conditional sentence has mafhūm, it is disputed whether the rule to which one is supposed to refer to in such cases necessitates intervention of causes so that they may have one consequence, or necessitates nonintervention of causes so that the consequence should be repeated by repetition of conditions. Doubtless, as we have frequently stressed, the specific proof should be followed in this respect should there be one, as in the case with intervention of causes of ablution such as urine, sleep, and the like and non-intervention of causes of obligation of prayers such as coming of the time of daily prayers, eclipse of the sun or moon, and so forth. The dispute is over the problem where no specific proof exists and one wonders what one is principally supposed to do - a problem known as the problem of “intervention of causes.”

2.2.1. The problem of intervention of causes (tadākhul al-asbāb). The justifiable opinion concerning this problem is non-intervention of causes.

The reason is that every conditional sentence has two appearances: appearance of the condition in independence in the causality, and appearance of the consequence in that the object of the judgment is the sheer being. As for the former, the appearance necessitates that the consequence should be multiple in the conditional sentences; hence, causes do not intervene. As for the latter, since the sheer being of something cannot be object of two judgments, it is necessitated that all causes should have one consequence and judgment when their conjunction is assumed; hence, the causes intervene.

Thus, those two appearances contradict one another. If the first appearance is preferred, we should believe in non-intervention, and if the second, in intervention. Now, which one is more justifiable to be preferred?

The justifiable idea is to give the appearance of condition priority over that of consequence. Since the consequence is dependent upon the condition it is subject to the latter both in realization and demonstration: if the latter is one it is one, and if the latter is multiple it is multiple. Now that the antecedent is multiple, because of appearance of two conditional sentences, the consequent, which is subject to it, is not apparent in the unity of the desired. Thus, there would be no contradiction between the two appearances; rather, the appearance in the multiplicity removes the appearance in the unity, since the latter cannot exist unless when it is assumed that the appearance in the multiplicity is removed or that there is no such appearance, while there is such appearance here. The principle in such case, therefore, is non-intervention.

2.2.2. The problem of intervention of the caused (tadākhul al-musabbabāt). Should one believe that causes intervene, one would not be in need of discussing whether or not the caused intervene. That discussion, however, is necessary for those who hold the contrary opinion, for they should find out whether or not is it acceptable to content oneself with one obedience where the caused are common in the designation and reality, such as major ablutions. In other words, they should find out whether or not the caused intervene.

The principle here is also non-intervention. The reason is that obedience of multiple mandatory acts by one act, even though where all of them are intended, needs a specific proof; otherwise, every obligation necessitates a specific obedience incapable of substitution by any other obedience - even in cases where mandatory acts share the same designation and reality.

2. Mafhūm of the Qualifier (al-Waşf)

By waşf (the qualifier) in this discussion is meant whatsoever can be a condition, in its broadest sense, for the object of burden.

The qualifier here should have an object of qualification, for a case where the qualifier itself is the object of judgment - like this verse: “And the thief, male and female, cut off the hands of both” (5: 38) - is called designation (al-laqab) and should be discussed in the mafhūm of designation. The reason is that there must be a constant object of the judgment which can be both qualified and not qualified by the qualifier so that the negation of judgment can be assumed.

The qualifier here should also be more particular than the qualified either absolutely or in some aspect, since should it be equal or absolute general, it would make no constriction in the qualified so that one can assume negation of the judgment from the qualified where the qualifier is negated. However, the more particular in some respect is considered only with respect to the separation of the qualified from the qualifier and not to that of the qualifier from the qualified, for the object, i.e., the qualifier, should be preserved in the mafhūm; a given object neither proves nor negates any other object. Thus, mafhūm of “there is zakāt in the pastured sheep” - should there be mafhūm for such sentence - would be “there is not zakāt in the fed sheep,” and not “there is not zakāt in other than the pastured sheep” nor “there is not zakāt in other than the pastured, such as camel.”

The Justifiable Opinion on Mafhūm of the Qualifier

Should there be contextual evidence that a qualifier has or does not have mafhūm, the denotation would doubtlessly be in accordance with the evidence.

An instance of the qualifier having no mafhūm is this verse: “Forbidden to you are… and your stepdaughters who are in your care” (4: 23) in which the quality of stepdaughters being in one’s care is declared because it has been the prevalent situation - the qualifier alludes implicitly to the cause of the judgment, since those girls who are in one’s care are like one’s own daughters.

Such sentences have absolutely no mafhūm, since it is clearly understood that neither in existence nor in non-existence is the judgment made dependent upon the qualifier.

The dispute is, then, whether the sheer qualification by the qualifier, without there being any contextual evidence, denotes mafhūm, i.e., denotes nonexistence of the judgment of the qualified where the qualifier does not exist.

There are two opinions in this connection, the prominent one being that such sentence has no mafhūm. The problem in this discussion is that whether the qualification understood from the qualifier is the qualification of the judgment which means that the judgment is made dependent upon the qualifier, or it is the qualification of the object of the judgment - or the object of the object (muta‘allaq al-mawđu‘), due to difference of cases -the object or the object of the object being the combination of the qualified and the qualifier altogether.

If the first, the qualification by the qualifier is apparent in non-existence of the judgment where the qualifier does not exist; because of absoluteness, for absoluteness necessitates that when dependence of the judgment upon the qualifier is assumed the qualifier should be exclusive - as explained in the qualification by the condition.

If the second, however, the qualification by the qualifier is not apparent in non-existence of the judgment when the qualifier does not exist, for this case is included in mafhūm of designation. Here, the qualifier and the qualified are merely uttered to limit the object of judgment; the case is not that the object is the essence of the qualified and the qualifier being a condition for judging it. For instance, if the teacher says, “Draw a quadrilateral, perpendicular, equilateral shape,” it is clearly understood that what he desires is a square and he has expressed his wish by using those terms to allude to that. In this case, the object is the total meaning denoted by the statement, which is a compound of the qualified and the qualifier, i.e., “a quadrilateral, perpendicular, equilateral shape” in the example which is in place of square. Thus, as the sentence “draw a square” does not denote non-existence where non-existence, what is in its place does not denote either, for it is in fact like a qualifier which is not dependent upon a qualified.

Now, it is time to determine the justifiable opinion. The appearance of the qualifier per se and without any contextual evidence is the second, i.e., it is a condition for the object and not the judgment. Thus, the judgment is absolute with regard to it; hence, there is no mafhūm for the qualifier. This presentation, however, is not enough to convince the opponents and we have to deal with doubts raised by them in this connection - and they are as follows:

1. Should the qualifier not denote non-existence where non-existence, there would be no benefit in using it.

The answer is that the benefit is not exclusively its reference to the judgment. Suffice it to say that it limits and qualifies the object of the judgment.

2. Conditions are principally supposed to be constrictive (iĥtirāzī).

The answer is that although this is undeniable, it means to constrict the realm of the object and to expel other than the condition from being covered by the person of the judgment; and this is something we believe in too. However, it has no relation to mafhūm, since to prove a judgment for an object does not negate affirmation of the type of the judgment for others - as is the case with mafhūm of designation. In short, the condition being constrictive does not necessitate its playing the role of condition for the judgment.

3. The qualifier adumbrates causality, i.e., it adumbrates that the qualifier is the cause for the judgment; hence, it necessitates that the judgment should be dependent upon it.

The answer is that although that adumbration is undeniable, it does not denote mafhūm so long as it has not reached the state of explicit-definite denotation. The explanation is that there are three states of denotation where a sentence is uttered by someone. If the term one utters leaves no probability for any other meaning but what is uttered, it is called naşş (explicit, definite).

If it leaves some probability for other meanings but that probability is so scanty that the wise do not take it into consideration and ignore it, it is called żāhir (apparent). Finally, if it leaves a notable room for other meanings in such a way that the wise take other probabilities into consideration as well, this transmission of meaning is called ish‘ār (adumbration). Naşş is essentially an authoritative proof, and żāhir is made an authoritative proof by the conduct of the wise - something to be discussed in the third part in detail - but there is no proof of authority of ish‘ār; hence, it cannot be useful for proving mafhūm of the qualifier.

4. There are some sentences whose having mafhūm is absolutely clear, such as the prophetic ĥadīth: “Procrastination of the wealthy man [in paying his debt] is injustice.”

The answer is that there is contextual evidence in that sentence, since the conformity between judgment and object declares that procrastination of a rich debtor in payment of his debt is injustice, contrary to the poor one who has no money to pay his debt and if he procrastinates he will not be considered an unjust person. As was frequently repeated, should there be any contextual evidence in any kind of sentences it is the evidence that should be followed, even though it is against primary principles. The problem in the discussion of mafhūm is that whether a specific kind of sentence per se has or does not have mafhūm without there being any contextual evidence.

3. Mafhūm of the Termination (al-Ghāya)

In the sentences where a termination occurs, such as the Qur’ānic verse: “Then complete the Fast unto the night,” (2, 187) and the ĥadīth: “Everything is lawful until you know that it, itself, is unlawful,” there is a dispute among Uşūlīs over two problems: one over manţūq and the other over mafhūm.

1. As for manţūq, it is disputed whether or not the termination is included in manţūq, i.e., in the judgment of the terminated first; and secondly, whether the termination, i.e., what comes after the article of termination such as to, unto, until, and the like, is included in the terminated with regard to judgment or not and its role is only terminating the terminated in terms of object and judgment.

Ignoring details of opinions in this connection, we merely state that the justifiable opinion is that the very qualification by the termination neither makes the termination included in nor excluded from the terminated; it is the contextual evidence that determines the situation. However, there is no doubt that the termination is not included where it is a termination for the precept, as in the ĥadīth: “Everything is lawful…,” since inclusion of knowledge of unlawful in the precept of lawful is nonsensical.

2. As for mafhūm, it is disputed whether or not qualification by termination denotes negation of type of the judgment from other than termination as well as from termination itself should it not be included in the terminated.

The criterion for mafhūm of the termination is the very criterion for that of condition and qualifier. Should the termination be condition for the judgment it would have mafhūm and would denote negation of the judgment from other things, and should it be condition for the object or the predicate only it would not denote mafhūm. Now, the question is that which of those two probabilities can be justified.

What seems to be more justifiable is to hold that the termination is apparent in referring to the judgment and to be a termination for its preceding relation; it is its reference to the object itself or the predicate itself is the one which is in need of depiction and evidence. Hence, the termination has mafhūm.

4. Mafhūm of the Exclusivity (al-Ĥaşr)

There are some different words in Arabic alluding to exclusivity; that is why they are all supposed to be discussed separately in order to determine whether they denote mafhūm or not. However, as the case is not the same in English, we simply assert that whatsoever denotes exclusivity will definitely denote mafhūm, since such structure is merely made to convey non-existence where non-existence, otherwise there would be no need to use such structure with such terms and one could simply convey one’s desire by using simple words in simple sentences. What we said in this connection is enough and leaves no room for any further discussion.

5. Mafhūm of the Number (al-‘Adad)

Limitation of an object to a specific number will doubtlessly not denote negation of the judgment from others. Thus, this command: “Fast three days of every lunar month” does not mean that fasting other than the three days is not recommended; hence, it does not contradict another proof which commands fasting some other days of every month.

Of course, should the precept be obligation, for instance, and limitation by the maximum number be for determination of the highest level- such as the proof that makes fasting thirty days of Ramađān obligatory - it would doubtlessly denote that the more is not mandatory. However, this is not due to the limitation by number having mafhūm, but rather because of peculiarities of the case. Thus, limitation by number has no mafhūm.

6. Mafhūm of the Designation (al-Laqab)

By al-laqab is meant any noun used as an object of the judgment, such as the thief in this Qur’ānic verse: “And the thief, male and female, cut off the hands of both.” (5: 38) Mafhūm of the designation means that the judgment does not cover what is not covered by the noun in general.

Since we did not accept that the qualifier denotes mafhūm, it is more plausible to hold that the designation does not have such denotation, for the very object of the judgment does not even allude to the judgment being dependent upon the designation, let alone any appearance in the exclusiveness.

The ultimate thing understood from the designation is that the person of the judgment does not cover what is not generally covered by the noun, but this is far from negation of the type of the judgment from another object. It is even said that should the designation have mafhūm, it would be the weakest one.

Three Important Denotations Not of Kind of Mafhūm or Manţūq: Necessitation (al-Iqtiđā’), Hint (al-Tanbīh), and Implicit Conveyance (al-Ishāra)

It was said that manţūq is what is denoted by the essence of a sentence and mafhūm is what is denoted by a sentence through an obvious implicature of manţūq in the most particular sense.

However, there are some denotations that are included neither in mafhūm nor in manţūq, such as the case where the speech denotes implicatively a single word or a single meaning not mentioned in the manţūq, or it denotes contents of a sentence which is an implicature of manţūq but not obviously in the most particular sense. Those are all called neither mafhūm nor manţūq.

To address those denotations in a general way, a good number of Uşūlīs have called them contextual denotation (al-dalāla al-siyāqiyya) meaning that the context of a speech denotes a single or compound meaning, or an omitted word. Such denotations are divided into the three following varieties:

1. Denotation of necessitation. In this denotation, two criteria are taken into consideration: the denotation being conventionally meant by the speaker, and the truth or correctness of the speech being logically, juristically, lexically, or conventionally dependent upon the denotation. Numerous examples can be found for such denotation two of which being as follows:

In the verse 82 of sūra 12 of the holy Qur’ān, parts of words of Joseph’s brothers to their father when they returned from their journey to Egypt are narrated in this way: “Question the city wherein we were,” and it is clear that the city cannot be questioned. Thus, the sentence can rationally be correct only if the word “people” is considered omitted in it, so that the sentence should be “Question people of the city… .”

There is a ĥadīth saying, “There are no prayers for the mosque’s neighbor except in the mosque,” while we know that should such a person say his prayers in his home it will be juristically acceptable. Thus, the truth and correctness of the sentence is dependent upon the word “perfect” being omitted so that what is negated should be perfection of the prayers and not the prayers itself.

Generally speaking, all implicative denotations to single meanings and all figurative meanings refer to the denotation of necessitation.

2. Denotation of hint. In this denotation, only the first criterion, i.e., the denotation being conventionally meant by the speaker, is taken into consideration. Here, the truth or correctness of the speech is not dependent upon the denotation; it is the context of the speech that causes certainty that such requisite is meant or makes its non-consideration unlikely. This denotation has also numerous instances the most important of which being classified as follows:

a) The speaker whishes to depict something but expresses its logical or conventional requisite. For example, one addresses his friend saying, “It is ten o’clock” in order to remind him that the time they had agreed upon to go somewhere has come.

b) The speech is associated with some word which conveys that something is a cause, condition, impediment, or part of the judgment. To mention the judgment is thereby a hint that the thing mentioned is a cause, condition, impediment, part of the judgment or it is not so. For instance, if the jurist says, “Repeat your prayers,” where he is asked about the doubt concerning numbers of rak‘as of a two-rak‘a prayers, it is understood that the said doubt is a cause for annulment of the prayers and the obligation of repetition.

c) The speech is associated with some word which determines some objects of the act. For instance, when someone says, “I reached the river and drank,” it is understood that what was drunk was water and it was from the river.

3. Denotation of implicit conveyance. In this denotation, neither of the two criteria is taken into consideration and what is denoted is only an unclear implicature of the speech or an obvious implicature of the speech in the most general sense - no matter the object of denotation is understood from a single sentence or from a couple of sentences.

An instance of this is denotation of two Qur’ānic verses as to the minimum time of pregnancy: the verse 15 of the sūra 46 “And painfully she gave birth to him his bearing and his weaning being thirty months,” and the verse 233 of the sūra 2 “Mothers will suckle their children two complete years completely for such as desire to complete the suckling,” since to subtract two years, i.e., twenty four months, from thirty months is six and thereby it becomes clear that the minimum time for pregnancy is six months. It is also of this kind the question of obligation of something necessitating obligation of its preliminary, since it is an obvious implicature of the obligation of the thing in the most general sense. That is why they consider obligation of the preliminary of a mandatory act a secondary and not a primary one; for it is not a denotation of the speech by intention and is only understood secondarily, i.e., by the denotation of implicit conveyance.

Authority of Such Denotations As for denotations of necessitation and hint, they would undoubtedly be an authoritative proof should there be a denotation and appearance, because of authority of appearances.

Denotation of implicit conveyance, however, cannot be treated as an authoritative proof because of authority of appearances, for there is no appearance where it is assumed that such thing is not intended - it is obviously clear that denotation is subject to the intention. Therefore, implicit conveyance should only be called adumbration and implicit conveyance without using the term denotation; hence, it is clear that such conveyance is not included in the appearances so that it can be an authoritative proof from that aspect. Of course, it would definitely be an authoritative proof should there be an intellectual implication through which its requisites, whether judgment or otherwise, could be discovered, such as taking requisites of one’s confession into consideration even though he claims that he has not intended them or he denies existence of any implication there.


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