Alhassanain(p) Network for Heritage and Islamic Thought

LESSONS IN ISLAMIC JURISPRUDENCE

MUHAMMAD BAQIR AS-SADR

Translated and with an introduction by

ROY PARVIZ MOTTAHEDEH

ONEWORLD

OXFORD

www.alhassanain.org/english

To my Arab friends past and present, Albert Hourani, Charles Issawi, Jeanette Wakin, and so many others, who taught me so much and have so much more to teach me.

LESSONS IN ISLAMIC JURISPRUDENCE

Oneworld Publications (Sales and Editorial) 185 Banbury Road Oxford OX2 7AR England www.oneworld-publications.com

© Roy Mottahedeh 2003 Reprinted in paperback 2005 Original Arabic version Muhammad Baqir al-Sadr, Durusfl'llm al-Usul, Beirut: Dar al-Kitab al-Lubnam, 1978

All rights reserved. Copyright under Berne Convention A CIP record for this title is available from the British Library

ISBN 1-85168-324-0

Cover design and typesetting by Saxon Graphics Ltd, Derby, UK Printed and bound in the USA by McNaughton & Gunn

Produced in association with the Harvard Center for Middle Eastern Studies

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

The typing errors are n’t corrected.

Table of Contents

Preface 12

Introduction 14

The Nature of Islamic Law 14

The Historical Development of Islamic Law 15

The Nature of Islamic Jurisprudence 24

Reason and Convention 28

Medieval Western Law and Islamic Law 29

The Life of Sadr 31

Notes 34

1- Characterization of Jurisprudence 36

A Preliminary Word 36

Characterization of Jurisprudence 37

The Subject-Matter of Jurisprudence 38

The Discipline of Jurisprudence is the Logic of Legal Understanding 39

The Importance of the Discipline of Jurisprudence in the Practice of Derivation 39

Jurisprudence is to Legal Understanding as Theory is to Application 40

The Interaction Between Legal-Understanding Thought and Jurisprudential Thought 41

The Permissibility of the Process of Deriving Divine-Legal Rulings 43

2- Substantiating Arguments 48

The Divine-Law Ruling and its Subdivision 48

The Division of Rulings into Injunctive and Declaratory 48

Categories of the Injunctive Ruling 49

Areas of Discussion in the Discipline of Jurisprudence 49

Division of the discussion according to types 49

[Probativity of assurance is] the element common to both types 50

Type 1: substantiating arguments 52

Subdivisions of the discussion 53

1. The divine-law argument 54

A. The Verbal Divine-Law Argument (“Signification”) 54

Introduction 54

What “Designation” and “Lexical Connection” Are 54

What is “Use”? 58

Literal Speech and Figurative Speech 59

The Figurative is Sometimes Turned into the Literal 60

The Classification of Language into Substantive and Relational Meanings 60

The Form of the Sentence 61

The Complete Sentence and the Incomplete Sentence 62

The Lexical Signified and the Assentable Signified 62

Declarative and Performative Sentences 64

Significations Which Jurisprudence Discusses 65

i- The Form of the Imperative 66

ii. The Prohibitive Form of the Verb 68

iii. Absolute Expression 68

iv. Particles of Generality 69

v. The Particle of the Conditional 70

The Probativity of the Prima-Facie Meaning 72

Applications of the Principle of the Probativity of the Prima-facie Sense to Verbal Arguments 73

The Connected and Independent Context 74

Establishing the Source 75

B. The Non-Verbal Divine-Law Argument 77

Rational Arguments: the Study of Rational Connections 79

Subdivision of the Discussion 80

i. The Connection between Mandatory and Prohibited 80

ii. Does Prohibitedness Require Invalidation? 82

Connections Arising Between a Ruling and Its Subject 83

Promulgation and Actuality 83

The Subject of a Ruling 84

Connections Between a Ruling and its Dependent Object 85

Connections Arising Between a Ruling and its Necessary Preliminaries 86

Connections Within A Single Ruling 88

3- Procedural Principles 90

Introduction 90

1. The Fundamental Procedural Principle [Precaution] 90

2. The Secondary Procedural Principle 92

3. The Principle of the Inculpatoriness of Non-specific Knowledge 93

The inculpatoriness of non-specific knowledge 95

The analytical resolution of non-specific knowledge 96

Occasions of hesitation 97

4. The Presumption of Continuity 98

The previous condition of certainty 98

Doubt concerning persistence 99

Unity of the subject and the presumption of continuity 100

4- The Conflict of Arguments 101

1. Conflict Between Substantiating Arguments 101

The case of conflict between two verbal arguments 101

Other situations of conflict 103

2. Conflict Between [Procedural] Principles 103

3. Conflict Between the Two Types of Argument 104

Analytical Summary by the Translator 106

1. Characterization of Jurisprudence 106

1. AN INTRODUCTORY WORD 106

2. CHARACTERIZATION OF THE DISCIPLINE OF JURISPRUDENCE 106

3 THE SUBJECT-MATTER OF JURISPRUDENCE 106

4. JURISPRUDENCE IS “THE LOGIC OF LEGAL UNDERSTANDING” 106

5. THE IMPORTANCE OF JURISPRUDENCE IN THE PROCEDURE OF DERIVATION 106

6. JURISPRUDENCE IS TO LEGAL UNDERSTANDING AS THEORY IS TO APPLICATION 107

7. THE INTERACTION OF JURISPRUDENTIAL THOUGHT AND LEGAL-UNDERSTANDING THOUGHT 107

8. THE PERMISSIBILITY OF THE PRACTICE OF DERIVATION 107

2. Substantiating Arguments 107

9. THE LEGAL RULING: DEFINITION AND SUBDIVISIONS 107

9a. The Division of Legal Rulings into “Injunctive” and “Declaratory” 108

9b. Categories of Injunctive Rulings Injunctive rulings are classified as: 108

Part Two - Topics Investigated by Jurisprudence 108

10. DIVISION OF THE DISCUSSION ACCORDING TO TYPES 108

11. THE COMMON ELEMENT IN BOTH TYPES OF DERIVATION IS ASSURANCE 108

12. TYPE I: SUBSTANTIATING ARGUMENTS 109

12 a. Subdivision of the Discussion 109

1 3. DIVINE-LAW EVIDENCE 110

13 a. Part One: Verbal Divine-Law Evidence 13al. Signification 110

13ala. Introduction 110

13alb. About “Designation” and “Linguistic Connection” 110

13alc. About “Use” 110

13ald. “Literal” and “figurative” 111

13ale. Figurative May Become Literal 111

13aIf. Language Distinguishes “Substantive” and “Relational”Meanings 111

13alg. The Shape of the Sentence 111

13alh. Complete and Incomplete Sentences 111

13ali. The Lexical Signified and the Assentable Signified 111

13alj. Declarative and Performative Sentences 112

13alk. The Significations That Jurisprudence Considers 112

13a2. Probativity of the Prima Facie 113

13a2b. “Conjunct” and “Disjunct” Contexts 113

13a3. Establishing the Source 114

14. NON-VERBAL ARGUMENT IN DIVINE LAW 114

15. RATIONAL ARGUMENTS 115

15a. The Study of Rational Connections 115

15b. Subdivision of the Discussion 115

15c. Rational Connections Between Different Rulings 115

15cl. The Polarity of Mandatory and Prohibited 115

15c2. Does Prohibitedness Require Invalidation of a Contract? 116

15d. Relations Between a Ruling and its “Subject” 116

15dl. Promulgation and Actuality 116

15d2. The Subject of a Ruling 116

15e. Connections Between a Ruling and its “Dependent Object” 116

15f. Connections Between a Ruling and its “Necessary Preliminaries” 117

15g. Connections Within a Single Ruling 117

3. Procedural Principles 118

16. INTRODUCTION 118

17. THE BASIC PROCEDURAL PRINCIPLE 118

18. THE SECONDARY PROCEDURAL PRINCIPLE 119

19. THE INCULPATORINESS OF NON-SPECIFIC KNOWLEDGE 119

19a. Introduction 119

19b. Inculpatoriness of Non-Specific Knowledge 119

19c. Resolution of Non-Specific Knowledge 120

19d. Occasions of Hesitation 120

20. THE PRESUMPTION OF CONTINUITY 120

20a. The Previous Condition of Certainty 120

20b. Doubt Concerning Persistence 120

20c. Unity of the Subject and the Continuity Presumption 121

4. Conflict of Arguments 121

21. THE CONFLICT OF ARGUMENTS 121

21a. Conflict Between Substantiating Arguments 121

21al. Conflict of Verbal Substantiating Arguments 121

21a2. Other Situations of Conflict 122

21b. Conflict Between Procedural Principles 122

21c. Conflict Between the Two Types of Argument 122

Glossary 123

Absolute expression ('itldq) 123

Account (khabar pi. 'akhbdr) 123

Actuality (fi'liyya) 123

Analogy (qiyds) 123

Argument (dalil pi. 'adilla) 123

Articulation, divine (khitab) 123

Assent, assentable (tasdiq, tasdiqt) 123

Assurance (qat’) 124

Assured (qat'i) 124

Chain (of transmission of hadith) ('isndd) 124

Clear Statement (baydn) 124

Common usage ('urf[n.] 'urfi [adj.]) 124

Conditional [particle] (['adat ash-] sharp) 124

Conduct of reasonable people (sira 'uqald'iyya) 124

Conjecture (zanri) 124

Conjunctive context (qarina muttasila) 124

Consensus ('ijmd') 125

Context (qarina) 125

Continuity, presumption of (istishab) 125

Declarative sentence (jumla khabariyya) 125

Declaratory ruling (hukm wad'i) 125

Deficient argument (daltl naqis) 125

Dependent object [of a ruling] (muta'allaq [al-hukm]) 125

Derivation, to derive (istinbdt) 125

Designation (wad') 125

Detailed Knowledge {'Urn tafsili) 126

Discretionary Opinion (istihsdri) 126

Dispensation (rukhsa) 126

Divine law (shari'a [n.] sharH [adj.] shar'an [adv.]) 126

Dogmatic belief ('aqida) 126

Doubt, doubtful (shakk, mashkuk) 126

Engagement (ishtighal) 126

Enjoin, injunction (faklif) 126

Evidence (hujjd) 126

Exculpatoriness (mu'adhdhiriyya) 127

Exemption (bard'a) 127

Explicit (mantuq) 127

Fifth, tax of one-fifth (khums) 127

Figurative [use of language] (majdz [n.], majdzi[ad).]) 127

Friday prayer (saldt al-jum'a) 127

Generalization, generality ('umum) 127

Hadith (hadith) 127

Hierarchical subordination (ta'akhkhur rutbt) 127

Ijtihad (ijtihdd) 128

Imam {'imam pi. 'a'imma) 128

Imperative [verb form] ('amr) 128

Implicit (mafhum) 128

Inculpatoriness (munajjiziyya) 128

Indeterminate (mujmat) 128

Indication ('amdra) 129

Infallible person (ma'mm) 129

Inference (istidldt) 129

Injunctive ruling (hukm taklifi) 129

Integrating [phrase/clause/sentence] ([jumla] indimdjiyyd) 129

Intention (niyya) 129

Intention in use ('irdda isti'mdliyyd) 129

Intention to be serious ('irdda jiddiyya) 129

'Iqamah ('iqdmd) 129

Jurisconsult (mujtahid) 129

Jurisprudence ('usul al-fiqh) 130

Jurist (faqih) 130

The Lawgiver (ash-Shari*) 130

Legal agent (mukallaj) 130

Legal understanding (fiqh) 130

Lexical (lughawt) 130

Limit (ghdya) 130

Linguistic connection ('aldqa lughawiyyd) 130

Literal (haqiqt) 130

Necessary preliminary (muqaddama) 131

Non-specific knowledge {Him Hjmdll) 131

Opinion (ra'y ) 131

Optional choice (takhyir) 131

Overruling (hakim) 131

Passage (siyaq) 131

Performative sentence (jumla 'inshd'iyya) 131

Practical position (maivqif 'amalt) 131

Precaution {ihtiyat) 131

Presumption of continuity (istishdb) 132

Presumptive (zannt) 132

Prevalence (shuhra) 132

Prima facie (zdhir [adj.] zuhur [n.]) 132

Primary doubt (shakk badawt) 132

Priority ('mala) 132

Probative, probativity (hujji, hujjiyyd) 132

Procedural principle ('asl 'amali/qd'ida 'amaliyya pi. 'usul/qawd'id 'amaliyya) 132

Prohibitive [verb form] (nahy) 132

Promulgation (ja'l) 132

Prooftext (nass pi. nusus) 133

Pure, purity (fdhir, tahara ) 133

Reason, rational ('aql [n.], 'aqli [adj.], 'aqlan [adv.]) 133

Relational meaning (ma'nd harfi) 133

Reliable-source account (khabar ath-thiqa) 134

Response (fatwd) 134

Restrict(ion) (taqyid, qayd) 134

Ruling (hukm pi. 'ahkdm) 134

Self-evident (badiht) 134

Self-specifying designation (wad' ta'ayyuni) 134

Sequence of speech, passage (siydq) 134

Signification, to signify (dalala) 134

Single-source account (khabar al-wdhid pi. 'akhbdr al-'dhdd) 134

Source of law (Wpl. 'usul) 135

Specifying designation (wad' ta'yint) 135

Subject [of a ruling] (mawdu' [al-hukm]) 135

Substantiating argument (dalil muhriz pi. 'adilla muhrizd) 135

Substantive meaning (ma'ndismi) 136

Succession in existence (fasalsulft l-wujud) 136

Sunna (sunna) 136

Tacit consent (taqrir) 136

Tradition (hadith or khabar pi. 'akhbdr) 136

Use [in communication] (isti'mdl) 136

Utterance (lafz pi. 'alfdz) 137

Wide-scale transmission (tawdtur) 137

Zihar form of “divorce” (zihdr) 137

Arabic Terms Mentioned in the Glossary 138

Preface

Over six years ago a Shi'i businessman who knew of my continuing interest in Islamic and, in particular, Shi'i jurisprudence commissioned me to translate the first volume of Muhammad Baqir as-Sadr's survey of Islamic jurisprudence. At that time I immediately prepared a translation which I considered accurate but which was almost entirely unintelligible to the intelligent lay reader. I felt both the poverty of my own understanding of the subject and the nearly complete absence of suitable received terms in English.

In the following five years, I read in Western jurisprudence and the secondary literature on Islamic jurisprudence. While I failed to gain anything like a thorough knowledge of either field, I did finally decide that my improved translation had become a work that I could offer to the public. Alongside this translation I have provided an introduction intended to give the general reader enough background to place Sadr's work in the legal and juisprudential context to which it belongs. Yet I still feel that the book is an orphan. It exists without proper relatives pardy because virtually no other translation of such a work exists and pardy because it should be accompanied by another separate book discussing Shi'i jurisprudence more extensively, both in terms of its relation with Islamic law and of its relation with Western jurisprudence. If I am favored with a long life and the ability to read more deeply in these fields, I hope to write the companion book that is needed.

The problem of terminology to which I referred above carries with it inescapable dangers. Literal translation is sometimes extremely misleading. For example, my dear friend, the late Dr. Jeanette Wakin of Columbia, suggested that I render the word khitab as “divine address.” While this translation correcdy captures the root idea of God's speech directed in the second person to mankind, it also seems to suggest the existence of a divine e-mail address, something we all hope for but are unlikely to find. English technical legal terms are also a danger. Although there are established translation terms for many of these English words in modern Arabic they often do not correspond to pre-modern usuage. The term wad'i means “positive” in modern legal Arabic and a fine contemporary American interpreter of Islamic law has written an interpretion of the work of a pre-modern Muslim jurist in which he consistently translates this term as “positive.” But as a result he at times severely distorts the meaning of the original. Nevertheless, when terms are reasonably close to those of Western law, as with “prima facie” in this translation, I feel comfortable using them, as long as there is a glossary that makes their original meaning in Islamic law quite clear. I have also adopted two terms from philosophy, “performative” and “assent,” which, when glossed, seem to me to serve well. In some cases, I have introduced entirely new usages.

I have tried to be consistent in the use of all technical terms. These terms are given in bold type the first time they occur in the text. The reader can find the Arabic equivalents of all technical terms in the Glossary. There is also an index from Arabic to English. I believe the text of this book is more intelligible as a result of the consistency in the rendering of technical terms. If the book makes no other contribution to the field, it will at least have suggested some ways to make the study of Islamic jurisprudential thought more tractable for the non-specialist English reader.

Muhammad Baqir as-Sadr's Lessons in Islamic Jurisprudence is a modern book. Nevertheless I feel certain that anyone who has mastered it will have a leg up in reading the extraordinarily rich tradition of pre-modern Islamic jurisprudential literature. The Arabic text of this book is readily available. My analytical summary on pages 145 to 172 is to some degree a commentary as well as a summary and may help the reader in following the text.

* * *

I am truly grateful to the many people who have made this book possible. Early on I received encouragement in my studies of jurisprudence from a distinguished lawyer friend, Dr. Saud Shawwaf. Over the years I have depended upon the intellectual assistance of Professor Hossein Modarressi of Princeton University, who has so generously given his time to educate me. I appreciate the learned comments on the translation by Dr. Aron Zysow. I also want to thank Professor Ridwan al-Sayyid of the University of Beirut, Dr. Abd-al-Karim Soroush, Kristen Stilt and Waheed Hussain for their valuable and important comments on the Introduction. Thanks are also due to Catherine Hall, who created the index.

It is, however, to my friend of forty years, John H. McCloskey, that I owe the most for his help in the final stages of preparing the manuscript, when my inability to type or to maintain any sort of organization almost defeated me.