Principles of Islamic Jurisprudence (Usulul-Fiqh) Volume 1

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Principles of Islamic Jurisprudence (Usulul-Fiqh)

Author: Sheikh Mansour Leghaei
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Principles of Islamic Jurisprudence (Usulul-Fiqh)

Principles of Islamic Jurisprudence (Usulul-Fiqh) Volume 1

Author:
Publisher: www.ihic.org.au
English

www.alhassanain.org/english

In the Name of the Almighty

Principles of Islamic Jurisprudence (Usulul-Fiqh) 1

Sheikh Mansour Leghaei

www.alhassanain.org/english

Notice:

This version is published on behalf of www.alhassanain.org/english

The composing errors are not corrected.

Table of Contents

Meeting 1: Definition, History, Subjects 6

Definition: 6

Significance: 7

History: 8

Subjects: 9

Meeting 2: Semantic Issues I (Mabahethul-al-Faath) 10

ABSTRACT 10

Introduction 11

Important Points 12

3. Verbal Principles (Usulu-lafdhiyyah) 13

3/1: the Principle of Reality: 13

3/2: The Principle of General: 13

3/3: The Principle of Absoluteness: 13

3/4: The Principle of Apparent: 13

Meeting 3: Semantic Issues II (Mabahethul-al-Faath) 14

ABSTRACT 14

The Imperative Form 15

Imperative form indicates the compulsion: 15

Others Expressions for Imperative Form: 15

An Imperative Form which indicates permissibility: 15

Types of Imperative in Islam: 15

Prohibitive From (al-Nahy): 16

The Implied Meanings (al-Mafaheem) 17

Types of Implied Meanings: 17

The Conditional Implied: 17

General (al-‘Aam) and Specific (al-Khas): 17

Absolute (al-Motlaq) & Limited (al-Moqayyad): 17

Obscure (al-Mojmal) & Explained (al-Mobayyan): 17

Meeting 4: Rational Correlation (al-Molazematul-‘aqleeyah) 19

ABSTRACT 19

Definitions: 20

Religious Evidence & Rational Evidence: 20

Independent Rationality & Dependent Rationality: 20

Argument in Rational Good and Shameful Deeds: 20

Correlation Between A Rational Deduction and a Religious (Narrative) Deduction: 20

Some Applications of Rational Correlation 22

al-Ejzaa' (to suffice instead of): 22

2. Association of a Command and a Prohibition! 23

Meeting 5: The Validity of the Four Evidences #1 24

ABSTRACT 24

Introduction 25

The Meaning of al-Hojjah (Valid Evidence): 25

The Premises of the Proof of Occlusion (Moqaddamat Daleel Ensedaad): 26

First Evidence: The Holy Quran 26

Meeting 6: The Validity of the Four Evidences #2 28

ABSTRACT: 28

Second Evidence: The Sunna 29

Validity: 29

Proofs for the Validity of a Single Narration 29

1/ The Holy Quran 29

Ayah Naba' (News): 49:6 29

Ayah al-Nafr (travelling for learning): 9:122 29

2/ Sunna: 30

Third Evidence: Consensus (al-Ejma') 31

Fourth Evidence: Rational Proof (al-Daleel al-Aqlee) 32

Meeting 7: Analogy- Equality and Preferences 33

ABSTRACT: 33

Definition of Analogy 34

History 35

Validity of Analogy 36

Equality and Preferences 37

Meeting 8: The Procedural Principles 38

ABSTRACT: 38

Introduction: 39

Subjective Doubt and Legal Doubt: 40

First Principle: Continuity (Isteshab): 41

Conditions of the Principle of Continuity: 41

Proofs of the Validity of Continuity 41

Second Principle: Exemption (Baraát) 42

Proof of the Principle of Exemption 42

Third Principle: Precaution (Ehtiyaat) 43

Proofs of the Principle of Precaution 43

Fourth Principle: Alternatively Optional (Takheer) 44

Meeting 1: Definition, History, Subjects

Definition:

Usulul-Fiqh is a combination of two words; ‘Usul' which means principles or roots and ‘Fiqh'. The Arabic term ‘Fiqh' literally means deep understanding. Thus, Faqih is an expert in Islam. Nonetheless, from the 2 nd century the term was used to mean deep understanding and deduction of the practical laws of Islam from its reliable sources. In short, it is also translated to ‘Islamic Jurisprudence'. Thus, Usulul-Fiqh is ‘the science of common principles in deducting jurisprudential rules'. [al-Sadr, 1:43] The relation between Usulul-Fiqh to Fiqh is similar to that of logic to philosophy. Therefore, Usulul-Fiqh enables a Faqih to make a systematically correct jurisprudential deduction and inference.

Significance:

Out of all different sciences necessary for jurisprudential deduction such as mastering Arabic literature, Narratology (E'lmul-Hadith), the science of the biography of the narrators (E'lmul-Rejal), interpretation of the jurisprudential Ayaat of the Quran and logic, Usulul-Fiqh is the most important one. Thus, at least in the recent decades most of the studying period of the students of Fiqh will be spent in learning Usulul-Fiqh. Nonetheless, a mere mastering the Usulul-Fiqh does not make a person a Faqih, insomuch as a mere learning medicine will not mean a person is a physician unless he/she is enabled to correctly diagnose the disease and prescribe a relevant medicine.

History:

Usulul-Fiqh is a science invented by Muslims and is developed within the science of Fiqh to help the jurist in his deduction. Similarly, Fiqh is an Islamic science which was developed within the science of Hadith (Narratology). Ibn Khaldoon in his ‘ Introduction ' asserts that Imam Shafe'i (150-240AH) was the first author in Usulul-Fiqh. However, Ayatollah Seyyed Hasan al-Sadr in ‘ The Establishment of Shi'a' shows that Hisham Ibn Hakam; the student of Imam Sadiq (martyred in 148AH) was the first Shi'a scholar who wrote on the topic. In fact, the first inventors of Usulul-Fiqh were Imam Baqir and Imam Sadiq (a.s). In a famous Hadith Imam Sadiq (a.s) said to Hisham Ibn Salem: “ Surely, it is out duty to deliver to you the principles and it is your duty to deduct the details .” [al-Wasa'el vol.27:p.61]

The oldest text book on Usulul-Fiqh in the Shi'a seminary was ‘ al-Tathkera'(The Rminding) compiled by the late Sheikh al-Mufid (died in 413 AH). Then the work of Seyyed al-Murtadha (died in 436 AH) called ‘ al-Thari'a (The Instrument) The most famous textbook of the 5 th century was ‘ Uddatul-Usul' (The Equipments of Usul) written by the late Sheikh al-Tousi. This book was the main recognised textbook for several centuries. Another ancient textbook was ‘Ma'alemul-Usul' (the Outlines of Usul) written by Sheikh al-Hasan (died in 1011 AH); the son of the 2 nd Shahid (Sh. Zainul-Din al-Ameli). This book has been one of the textbooks in the Islamic seminaries. In recent years it's being nearly replaced by some other books.

Usulul-Fiqh in the last two hundred years was boasted by the works of Sheikh Wahid Behbahani as a response to the trend of Traditionalists (al-Akhbariyyoun) especially Mulla Muhammad Amin al-Istrabadi. In the last 150 years the school of Sheikh Murtadha al-Ansari (died in 1281AH) has been the most influential school in Usulul-Fiqh and his book Fara'edul-Usul(The Gems of Usul) coupled with al-Makaseb (The Transactions) are two important textbooks.

Subjects:

The subjects in Usulul-Fiqh rotate around two expressions; 1) the Evidence (al-Daleel) and 2) The Principle (al-Asl). The Evidence(s) is any Ayah of the Quran or a Hadith which clearly answers a jurisprudential question. The Principle(s) on the other hand is a general rule for deduction in the absence of evidence. The Principles are also called ‘Practical Principles' because they are a practical remedy for certain circumstances.

The Evidence is also divided into 1) divine evidence (Daleel Shar'i) such as the Quran, and the Sunna, and 2) Rational evidence (Daleel ‘Aqli) such as the compulsion of the preliminary stages of an obligation.

The Chart of the Main Subjects in Usulul-Fiqh

Please obtain the audio lectures of this course by sending your request to info@ihic.org.au

Meeting 2: Semantic Issues I (Mabahethul-al-Faath)

ABSTRACT

Introduction

The main sources of jurisprudential deduction are based on the words of the holy Quran and the Hadith of Ahlul-bait (a.s). Thus, the Usulieen (experts in principles of jurisprudence) need to analyse some semantic and verbal issues which are necessary for jurisprudential inference. Semantics is the science of the interpretation of a word or a sentence.

Types of Semantic issues : Semantic issues in every language are of two types; the general issues and the specific ones. The example of the general issues is the discussion on whether or not an imperative verb jurisprudentially indicates the compulsion of the action. The specific issues are the semantic issues with regards to the meanings of a particular word and the history of its development, etc. The first type is the semantic issues that are discussed in the principle of jurisprudence. For instance, in the Ayah “ Take Sadaqah from their wealth in order to purify them and sanctify them with it, and invoke Allah for them .” [9:103] The verb ‘take' (Khoz in Arabic) is imperative and so is ‘invoke' (Salle in Arabic). In Usulul-Fiqh there is a general discussion as to whether the imperative verb indicates the compulsion or not. The two imperative verbs in the above Ayah are only two examples of that general discussion. But the term ‘Sadaqah' which could mean ‘charity' or ‘Zakat' (alms) is a specific discussion on a particular word which is discussed in Fiqh.

Coining a word (al-Wadh'): the first general semantic issue that is discussed in Usulul-Fiqh is whether the indication of a word for a meaning is essential or it is by agreement? For instance, when we observe smoke rising from behind a building it indicates that there is a fire out there. Such an indication is essential and does not need any agreement. Thus, every sane person will come to the conclusion that there is a fire behind the building. However, the indication of the English term ‘FIRE' for ‘a burning fuel' is not essential. Hence, a person who is not acquainted with the English language does not come to this indication. In conclusion, when a word- in any language- is coined for a meaning its indication for that meaning is by agreement not essential. Linguists further discuss who the inventor(s) of the words are? This discussion is beyond the scope of Usulul-Fiqh.

Usages of a word: The usage of words in any language is divided into real and figurative. The real is when a word is used in a meaning that is agreed upon in that language and there is a verbal relation between that word and its meaning. For instance, the usage of the term ‘lion' for the famous large carnivorous animal is real. A figurative meaning is when a word is used in a meaning that is not originally coined for it, but there is one or more than one agreed similarity between them that has allowed the word to be used in that meaning, like ‘lion' for a brave man. A term that is used for a meaning with no agreed meaning or similarities is called ‘ wrong '.

Important Points

Does the figurative usage require the agreement of the inventor (s) of the word or is having a good taste of that language sufficient for its use? It seems a mere sense of it without the permission of the inventor(s) is insufficient; otherwise the purpose of conversation which is for mutual communication may be lost. For, every one could claim that according to his taste that particular usage would be possible.

The correct usage of a word in its figurative usage requires a recognised similarity between the word and its suggested figurative sense.

The correct usage of a word in a figurative sense, when the relation between the word and the figurative meaning is not clear, requires a context- whether verbal or circumstantial- to allow the figurative use.

Conversion of figurative to real: The figurative use of a word in the beginning needs a context. However, when a word is used very commonly in a figurative sense it will no longer require a context, as if the usage is converted to a real sense.

The Signs of Real and Figurative senses: one of the most important issues in this topic is how to distinguish whether a word is used in its real meaning or figuratively. Normally, we distinguish the real meaning from a figurative one by referring to dictionaries or asking the linguists. Nonetheless, sometimes the Usulieen (experts in principles of jurisprudence) are still doubtful as to whether a meaning of a word is real-so that it does not need any context- or is figurative- than requires a context. Scholars usually distinguish a figurative from a real by the following methods:

Crossing the mind: the first common method is called ‘crossing the mind'. That means when they look at a word in its context, the first meaning that usually crosses the mind is the sign for its real meaning. For instance, for the one who is acquainted with English when he sees the word ‘water' the first comes to his mind is the famous liquid. This method is used very often in jurisprudential deduction.

Validity and invalidity of negation: Another method to distinguish a real from a figurative use is to examine whether it is valid to negate or confirm that meaning for it.

3. Verbal Principles (Usulu-lafdhiyyah)

If we were doubtful as to whether a word is used in a suggested figurative sense or not, the previous methods must be utilised. However, sometimes although we know a figurative meaning for a word, we don't know whether it is used in that context for a figurative or real meaning. In such situations we refer to different principles called ‘ the verbal principles' We discuss the verbal principles from two aspects; 1) what are the verbal principles, and 2) what is the proof for their validity. The most important verbal principles are as follow:

3/1: the Principle of Reality:

This principle is used when we are not sure whether the speaker has meant the real meaning of the word or it's figurative. The reason for the doubt is although there is no explicit context for the figurative meaning; it is possible that there is a context for the figurative use. The rule under such circumstances is to refer to the Principle of Reality and conclude: ‘the speaker means the real meaning of the word. For instance, in the Ayah “ So whoever does good equal to the weight of an atom shall see it .” {Surah 99] Whether it is meant seeing the actual action (real meaning) or the reward of it (figurative). The principle is to say Allah means the real sense of it.

3/2: The Principle of General:

When a term is used in its general sense and we wonder whether the speaker has really meant its general meaning or not, the rule is to conclude ‘the principle is that he means the general sense of it. For instance, the Prophet (P) said: “ Honour your neighbour .” Then we wonder, did he mean only a Muslim neighbour or did his words include non-Muslims too. The rule is to refer to the principle of general and conclude he means all examples of neighbours.

3/3: The Principle of Absoluteness:

For example, the Almighty Allah says: “ Allah has made transaction permissible.” Then we wonder if it is necessary for a permissible transaction to be performed in Arabic, the rule is to refer to the Principle of Absoluteness and conclude there are no such conditions.

3/4: The Principle of Apparent:

The application of this principle is when a word appears to have a particular meaning but it is not explicit. The rule is to refer to the principle of apparent and ignore other weak possibilities. All the previous principles in a sense refer to the principle of apparent Hence the main and the most important verbal principle in Usulul-Fiqh is the principle of apparent .

The proof for the validity of the abovementioned principles is the conduct of the sane people who in their communication rely on the apparent of the words and disregard any possibilities of jokingly, mistakenly or he implied any conditions, etc. unless otherwise specified by the speaker.

Meeting 3: Semantic Issues II (Mabahethul-al-Faath)

ABSTRACT

The common semantic and verbal issues of the Holy Quran and the noble Hadith that are discussed in Usulul-Fiqh are as follows:

The Imperative Form

The imperative form of a verb is exemplified by verbs such as ‘Go' (Eth-Hab' in Arabic), ‘Fast' (Som in Arabic), etc, as well as a present tense that expresses a common such as “He repeats (Yo'eedu in Arabic) which means ‘he must repeat'. The first common verbal issue that is discussed in Usulul-Fiqh is whether the imperative form of a verb indicates the compulsion of the action or not.

In the Arabic language the imperative form is used by three different people for three different meanings: 1) a person whose status is higher, like a father asking his son to get him a glass of water. 2) a person whose status is lower, like a son asking his father to buy him something, 3) a person asking someone whose status is equal to the speaker to do something for him. The first one is the only real imperative form which is discussed in Usulul-Fiqh.

Imperative form indicates the compulsion:

Most experts in Usulul-Fiqh agree that the imperative form indicates the compulsion of the action and its meaning for a ‘ Mustahab' is figurative and hence needs a context. They have two reasons for this claim: 1) al-Tabador (the first thing that crosses the mind) and as we have learnt in the previous meeting, the first meaning that crosses the mind is a sign of the reality. 2) al-Dhohour (Apparent): An imperative form of a verb appears to reflect the meaning of command.

Others Expressions for Imperative Form:

As mentioned earlier, an imperative form is usually in the form of an imperative verb such as ‘Go'. However, in Arabic there are other expressions for an imperative form such as present tense like ‘ He repeats his Wudu and Salaat ' which means ‘He must repeat them.” Another expression for imperative form is a passive past tense such as ‘It is written' (Koteba in Arabic).

An Imperative Form which indicates permissibility:

If an imperative form is used after a prohibition or even possibility of a prohibition it means the action is no longer prohibited, i.e. it is permissible. Such as ‘When you finish the Ihram (of Hajj or Umrah) you hunt'. (Holy Quran 5:2) the term ‘hunt' here means you ‘may hunt' for it has come after the prohibition of hunting during the Hajj which is mentioned in the previous Ayah. The similar case is in Surah 2 Ayah 187.

Types of Imperative in Islam:

In Fiqh there are different types of imperative. The following are examples: 1) For Worshipping (al-Ta'bbodi), and For Attainment (al-Tawassuli) An imperative for worshipping is a rite that is to be offered for the sake of nearness to God, such as daily prayers. An imperative for attainment is a religious obligation whereby only the fulfilment of the action is desired by God, such as burying a dead Muslim, or purification of the body and the clothes for praying. 2) Designative (al-Ta'eeni) and Alternative (al-Takheeri) : The designative obligation is the one that cannot be substituted by something else, such as daily prayers. The alternative obligation is that one that has other substitutions, such as the penalty for intentional breaking of the fast during the month of Ramadan which is nowadays either feeding 60 poor people or fasting 60 consecutive days. 3) For itself (al-Nafsi), and For Something else (al-Ghayri). An obligation for itself is like daily prayers that are compulsory for itself and an obligation for something else is like Wudu which must be performed for Salat.

Prohibitive From (al-Nahy):

The discussions on the prohibitive form is similar to that of the imperative except the prohibitive form means one must refrain from the act such as ‘Do not drink wine'.

The Implied Meanings (al-Mafaheem)

Some statements have an explicit meaning which is the apparent meaning of it, and an implicit meaning, which is an indirect meaning of that statement. For instance, the explicit meaning of the Hadith ‘when the sun declines offer your Noon prayer' is what appears in the sentence. The implied meaning of it is: ‘Don't prayer if the sun has not declined yet.'

Types of Implied Meanings:

There are two types of implied meanings 1) Compatible implied (al-Mafhoomul-Mowafeq) which means the implied meaning is in accordance with the explicit one such as: “Say not to them ‘so much' (Uof)' {17:23] the direct implied meaning of which is ‘do not hit them' 2) Incompatible implied (al-Mafhoomul-Mokhalef) which is an opposite meaning to the explicit meaning of a sentence. The experts in Usul have mentioned several types of indirect implied. The following is the most important one:

The Conditional Implied:

Every conditional sentence consists of two sentences. The first is called ‘if clause' and the second is ‘main clause'. Such as, ‘If a Fasiq (liar) comes to you with any news, verify it.' [49:6] The implied meaning of this Ayah is ‘if a just person comes to you with a news, you don't need to verify it.' The conditional implied is one of the most important and useful semantic discussions in Usulul-Fiqh.

General (al-‘Aam) and Specific (al-Khas):

Many a time a general rule is mentioned in the Quran or Hadith and then another rule is mentioned which excludes some examples of that general rule. For instance, the Quran is asking all divorced women to observe a waiting period of three purifications from menstruation. [2:228] On the other hand, an authentic Hadith says that divorced women who did not consummate their marriage do not need to observe the waiting period. The first rule is general and the second is specific. The general is expressed by different words such as ‘all' and ‘everyone' or by an infinite noun in a negative or prohibitive sentence such as ‘there is no creature on earth but its substance is with Allah' [11:6] or the definite plural (a plural with ‘ al ' in Arabic) such as ‘the worlds' as long as there is no context to specify otherwise.

Absolute (al-Motlaq) & Limited (al-Moqayyad):

Absolute and limited is similar to general and specific except that absolute and limited are used for circumstances and attributes. For instance, the Ayah ‘O you who believe! Send your Salaat on him (Muhammad) and greet him.” [33:56] is absolute, which means there is no limitation in sending Salat to him in term or time, private or public, loudly or quietly, etc.

Obscure (al-Mojmal) & Explained (al-Mobayyan):

An obscure word or phrase is one where the real intention of the speaker is unknown. For instance, the Imam (a.s) says something in front of a stranger. Then we don't know whether he really meant what he said or he had said it for protection (al-Taqiyyah). His word then becomes obscure but by asking him later on, or by referring to his other words, we will explain and verify his real intention.

Meeting 4: Rational Correlation (al-Molazematul-‘aqleeyah)

ABSTRACT

Definitions:

Rational Correlation (a-Molazematul-‘aqleeyah) or rational relationship is the judgment of common sense for the relation between a narrative religious evidence and another type of evidence; whether that evidence is also narrative or rational. For instance, there is a rational relationship between compulsion of Salaat and necessity of purification as a prerequisite of Salaat.

Religious Evidence & Rational Evidence:

Every religious evidence is a deduction that consists of two premises. If both of the premises are narrative evidences, their conclusion is called ‘religious evidence' (al-Daleel al-Shar'i). But if both of the premises or either of them is rational, i.e. things that human intellect and common sense dictate without any aid from religious evidence, the deduction is called ‘rational evidence'.

Independent Rationality & Dependent Rationality:

If both the premises of rational evidence are also rational, the deduction is called ‘independent rationality' for we have achieved the deduction without the aid of any narrative evidence. But if one of the premises is rational and the other narrative, the deduction is called ‘dependent rationality', because our rational conclusion partially depended on a religious (narrative) evidence. In Usulul-Fiqh we discuss the validity of the rational relationship whether in independent rationality or dependent rationality.

Argument in Rational Good and Shameful Deeds:

There has been an old debate amongst Muslim scholars as to whether the human intellect –irrespective of religious laws- can decide whether an act is a good or shameful deed? Al-Ash'aris (the followers of Abul-Hasan al-Ash'ari died in 330 AH) argue that there is no good or evil but what so defined by God. Thus, there is no room in religious matters for any rational deduction. Al'Adleeyah (those who believe in the rational justice of God like the Shi'a) by contrast asserts that for instance ‘justice' is a good deed and ‘oppression' is evil -irrespective of any religious law. In fact, without the aid of rational evidence, no narrative (religious) evidence can be proven.

Correlation Between A Rational Deduction and a Religious (Narrative) Deduction:

Nearly all Usuleeyoun (except perhaps one) are unanimous that there is a one sided correlation between rational deductions and religious deductions. That means, if all sensible people –irrespective of their background- agree on something to be a good or a shameful deed, then it is also a virtue or a vice in the sight of God, for He is the creator of the intellect. Thus, it is said: “Whatever the common sense dictates, the religion also dictates.” However, not all that the religion dictates, the intellect can also dictate. The reason being, the human intellect is limited and hence can not perceive all the benefits of religious laws. Thus, the human intellect in many instances remains silent about it. For instance, we can not perceive the reason(s) of the numbers of the units of the Daily Prayers with our rationale. This is the meaning of the Hadith from Imam Sajjad (a.s): “ Surely the religion of Allah will not be perceived by insufficient intellect .” [al-Kaafi]

In conclusion: the correlation between relational deductions and religious deductions are one sided i.e. whatever the human intellect dictates, religion also confirms, but not everything that the religion dictates, the intellect can perceive to confirm.

Some Applications of Rational Correlation

al-Ejzaa' (to suffice instead of):

If there are two divine commands; one is first and real and the other is secondary and in case of an emergency. Then a responsible (al-Mokallaf) Muslim instead of the first and real command met the second and emergency one, for the first command was not possible for him or he was ignorant about it. For instance, the first command was to use water for purification but since he had no access to water followed the second command and performed Tayyammum.

The argument is whether meeting the emergency obligation (Tayyammum in the above example) would rationally suffice the real obligation or the action ought to be repeated –whether in time or after its time is lapsed- according to the real obligation?

It seems the most the common sense would dictate is that if the emergency has been removed after the time of the obligation is lapsed, then there is no need for repeating the action and the emergency action would suffice the real one. But if the time is not lapsed yet, the common sense dictates that we should make up and rectify the missed benefits which would have been achieved by meeting the real obligation. Nonetheless, nearly all jurists are unanimous that once the emergency obligation is met; there is no need to repeat the action whether in time or after the time is lapsed. The reason for this deduction is: 1) emergency rules are meant to ease the situation. “ Allah intends for you ease, and He does not want to make things difficult for you .” [2:185] repeating the action is contrary to easing it. 2) Most of the reasons for emergency rules are absolute. For instance, for Tayyammum the Quran says: “… and you find no water, perform Tayammum .” [4:43]. As you can see the rule is not conditioned to anything.

2. Association of a Command and a Prohibition!

This title is quite deceiving. For, the association of a command and a prohibition on something is impossible and Allah does not ask for the impossible. What we mean here is that sometimes a command and a prohibition coincide. For example, a man whilst praying looks (lustfully) at a strange woman. Obviously there is an association of a command (to pray), and a prohibition (to lower his gaze) in this action. At other times , the association of a command and a prohibition is real. The famous example is praying on usurped land. In such situations we should first look for another alternative (Manduha). In the absence of any alternative then if being on usurped land was by the choice of the person, it is the example of association of a command and a prohibition. But if being on usurped land was not by the choice of the person, there is no such association. For prohibition applies to a voluntary deed.

The benefit of this discussion is when there is a real association between a prohibition and a command in a worshipping act, then that act is no longer a worshipping. For, one cannot be near to God by what is distancing him from God (praying voluntarily on usurped land).

The Association of a command and a Kerahat (not recommended) in worshipping: in such situations, Kerahat means it has less rewards. For instance, praying in the bathroom is Makrooh. This means there is less reward for it.

The association of a command and a prohibition in transactions: in most instances it does not void the transaction. For instance, if someone at the time of the call for Jum'a Prayers is doing a transaction, although his action is forbidden (if Jum'a Prayer is decisively compulsory), it does not void his transaction.

Narrative evidence (al-Daleel al-Aqli) is opposite of rational evidence. Narrative evidence is like a Hadith or an Ayah of the Quran.

Meeting 5: The Validity of the Four Evidences #1

ABSTRACT

Introduction

The Meaning of al-Hojjah (Valid Evidence):

‘al-Hojjah' literally means something that can be used to prove an argument to someone else. In Usulul-Fiqh it means a valid excuse between a Muslim and God. Al-Hojjah is valid evidence to which a jurist has referred for his verdict. Al-Hojjah is a plea from a Muslim to God as to why he has performed an action (such as an obligation), and refrained from another (such as a forbidden). Thus, if the Hojjah is valid he is excused before God and rather will be rewarded, but if it is invalid he can not plea to God and hence deserves a punishment. In Usulul-Fiqh the Hojjah is also called ‘al-Amarah' (sign) or al-Tariq (path) for any evidence is in fact a sign for and a path to reach the rule of God.

Significance: the validity of all the ‘evidences' will be discussed in this chapter (and the following one). Without proving the validity of the evidences they hold no value and the entire deduction would be void. Thus, the validity of the evidences is the 2 nd and the main premise in a jurist's deduction. For instance, he says: “P1. The imperative form of ‘Pray' in the Quran appears to show it is an obligation. P2. The appearance of the Quran is a Hojjah (valid evidence). Conclusion: the appearance of ‘Pray' indicates praying is an obligation.” As you can see without proving the validity of the second premise, the first premise (that we learned about it in the previous meetings) is futile.

What can be used as valid evidence? Obviously, if a jurist is certain about something and has full knowledge about it, he can act accordingly, for the common sense dictates that knowledge is a valid excuse. In fact, all intelligent people blame the person who acts against his knowledge. Certain knowledge in religious matters can only be obtained if we directly ask the Prophet (P) or the Imam (a.s). Similarly, ignorance is not a valid excuse. Also, if a jurist has a doubt on something, he can not give any verdict on it, for the doubt means the possibility of 50-50 and to prefer either of the sides over the other is a preference without any justification. The argument is if his knowledge of something is more than 50% (doubt) and less than 100% (certain knowledge) a situation that is called in Usulul-Fiqh the ‘Z'an' (literally guess) would this be a valid excuse?

Valid Z'an: The Z'an in its literal sense (guess and imagination) is not valid evidence. But in Usulul-Fiqh it means ‘strong possibility' or 'more likely' (50+% but less than 100%). When 'Zán' is strong it can also mean 'reasons beyond doubt'. Is ‘ Z'an ' in its Usulul-Fiqh sense valid evidence? Some of the Ayaat in the Quran (53:28, 6:116, 10:59) has prohibited us from acting upon our Z'an Thus, the primary rule indicates that acting according to Z'an is forbidden. However, if there is valid evidence to prove the validity of certain Z'an under certain circumstances, then acting according to that type of Z'an will be valid. Usuliyyoun usually prove the validity of this type of Z'an in two different ways: 1) Through the ‘ premises of the proof of occlusion' (Daleelul-Ensedaad), 2) Through some of the Ayaat and Ahadith which indicate the validity of certain Z'an .

The Premises of the Proof of Occlusion (Moqaddamat Daleel Ensedaad):

Premise 1: During the time of major occultation we have no access to the Imams (a.s) or the Prophet (P).

Premise 2: We know in general that God has ordained some rules for us and we are not allowed to totally ignore them.

Premise 3: Since we know in general that we are responsible, then we will not be free from the responsibility unless we meet our obligations by one of the following ways:

To follow a jurist who believes the gate to frequently visiting Imam Zaman (a.f) is open who can constantly ask him about the Islamic rules.

To take precaution in all religious matters.

To refer to Practical Principles such as Exemption, Continuity, etc.

To refer to the evidences that are more possibility true (Z'an).

The only possible option is the last one.

The Validity of the Four Evidences: In Shi'a Usulul-Fiqh there are four types of evidences that are proven to be valid, i.e. the Holy Quran, the Sunna, the Consensus (al-Ejma'), and the Common Sense (al'Aql).

First Evidence: The Holy Quran

Strangely enough, some Muslim scholars (whether Shi'a or Sunni) have denied the validity of referring to the Quran as evidence, unless under two conditions: 1) its verbatim (Nass) is explicit on the meaning we need with no chance for any other possible meaning, 2) it is so explained by the Ahadith. These scholars are called ‘al-Akhbariyyoun' (Traditionalists) and they are in minority. They base their arguments primarily on two proofs:

First Proof: Based on Ayah 7 of Surah 3, the Ayaat of the Quran are divided into the Ayaat that have established meanings (Mohkamaat), and ones that their meanings are ambiguous. The above Ayah is forbidding us to act according to the ambiguous Ayaat. Every apparent meaning is ambiguous. Thus, the apparent meaning of the Quran is not valid evidence.

Answer: The response of the Usuleyyoun to the above argument is: 1) the apparent of the Quran is not ambiguous. The Ambiguous is the one that its meaning is obscure. 2) The Ayah is prohibiting from acting upon any am biguity for evil purposes and seeking mischief. 3) If the apparent of the Quran is not valid evidence, then the above Ayah is also not a valid evidence for the traditionalists to refer to!

Second Proof:

The second proof of the Traditionalists is based on some Ahadith that assert that the understanding of the Quran is not possible for other than a Ma'soom. [Wasa'elu-Shi'a vol.27]

Answer: Firstly, all those Ahadith are technically weak, nay seem to be fabricated. Had those Ahadith been authentic the reliable narrators would have narrated them too. Secondly, there are many Ahadith that refer us to the Quran to examine the validity of a narration. [Wasa'el vol.27 p.106]. Thus, either this group of Ahadith should be preferred over the first one as they are more authentic, or at least they contradict each other and as a result both are dropped from validity, the result of which is to refer to the Quran as a valid evidence. For, this is what the common sense

Meeting 6: The Validity of the Four Evidences #2

ABSTRACT: