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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.

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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.

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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.

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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.