2- Substantiating Arguments
The Divine-Law Ruling and its Subdivision
We have understood that the discipline of jurisprudence studies the shared elements in the process of derivation. On this account it is necessary that there be a general idea from the start concerning the divine-law ruling, the shared elements in the derivation of which the discipline of jurisprudence undertakes to determine. The divine-law ruling is the legislation emanating from God Most High to organize the life of a human being. The divine-law articulations in the Qur'an and sunna make a ruling manifest and reveal it, but they are not the legal ruling itself.
In this light it would be a mistake to define the divine-law ruling with the formulation well-known among the early specialists in jurisprudence, since they used to define it as “divine-law articulation associated with the actions of legal agents.” For the articulation reveals the ruling, but the ruling proper is that which the articulation signifies.
Moreover, the ruling of divine law is not always associated with the actions of legal agents but is sometimes associated with their identities [as for example being husband or wife] or with externalities pertaining to them [such as ownership], because the goal of divine-
law rulings is the organization of the life of humankind. This goal, just as it is achieved by articulation associated with the actions of legal agents such as the articulation: “Pray,” and “Fast,” and “Don't drink wine,” similarly it is achieved by an articulation associated with their identities or with other things which enter into their lives, such as rulings and articulations which organize the marital relationship and consider a woman a wife to her husband under certain specific conditions, or organize the relationship of ownership and consider a person as an owner of property under certain specific conditions. For these rulings are not associated with the actions of legal agents. Rather, the marital relationship is a divine-law ruling associated with their legal identities, and ownership is a divine-law ruling associated with wealth. The best course, therefore, is to replace the well-known early definition with what we have said here, “A divine-law ruling is legislation emanating from God in order to organize the life of a human being, whether it be connected with his/her actions or her/his identity or other things entering into his/her life.”
The Division of Rulings into Injunctive and Declaratory
In the light of what has preceded we can divide rulings into two kinds.
1. One kind is the ruling in divine law associated with a person's actions and aimed directly at his/her conduct in the various aspects of his/her life as a person, as a worshipper of God, as a member of a family and as a member of society. The divine law treats and organizes all of these aspects of life, such as the prohibition of drinking wine, the mandatoriness of prayer and of material support for certain relatives, the permissible nature of bringing unused land back into use and the mandatoriness for rulers to do justice. [Such rulings are called injunctive rulings.]
2. The other kind is the divine-law ruling which is not aimed directly at a person in his/her actions and conduct. This includes every ruling which legislates a specific condition which has an indirect effect on human conduct, such as the rulings which organize marital relationships. Such rulings directly legislate a specific relation between a man and a woman but affect behavior indirectly and specify, for example, that the wife after marriage is required to behave in a certain way toward her husband; such rulings are called declaratory rulings.
The link between injunctive and declaratory rulings is strong, since no declaratory ruling exists without an injunctive ruling alongside it. Thus the marital relationship is a declaratory divine-law ruling alongside which there exist injunctive rulings, namely the mandatoriness of expenditure by the husband on his wife and the mandatoriness of the obedience owed by the wife to her husband. Ownership is a declaratory divine-law ruling, alongside which are found injunctive rulings, such as the prohibitedness of a non-owner disposing of property without the owner's permission, and so on.
Categories of the Injunctive Ruling
The injunctive ruling, which is the ruling associated with a person's actions and aimed directly at those actions, is divided into five categories, which are as follows:
1. “The obligatory quality of an act,” which is a divine-law ruling that impels one toward an act to the degree that it is compulsory, such as the mandatoriness of prayer and the mandatoriness for someone in authority to sustain the needy.
2. “The encouraged quality of an act,” which is a divine-law ruling that impels one towards something to which the ruling pertains, but to a lesser degree than making it compulsory (and therefore there always exists a dispensation alongside it from the Lawgiver to act contrary to it). For example, the night prayer.
3. “The prohibited quality of an act,” which is a divine-law ruling that restrains one from an act unconditionally, like the prohibited qualities of usury and fornication and selling weapons to the enemies of Islam.
4. “The discouraged quality of an act,” which is a divine-law ruling that restrains one from an act, but not unconditionally. So that which is discouraged in the realm of restraining from action is like that which is encouraged in the realm of direction to action, just as the prohibited in the realm of restraining from action is like the obligatory in the realm of directing to action. An example of a discouraged act is failing to fulfill a promise.
5. “The permissible quality of an act,” which is [a ruling in which] the Lawgiver gives latitude to the legal agent to choose the position s/he wishes. As a result, the legal agent enjoys freedom and has the right to act or not to act.
Areas of Discussion in the Discipline of Jurisprudence
Division of the discussion according to types
When the jurist treats a question such as the question about the saying of the 'iqamah prior to the liturgical prayers, and tries to derive the ruling relevant to it, s/he first asks him/herself: what is the type of divine-law ruling associated with saying the Hqamah} And if s/he comes to possess a [substantiating] argument which reveals the kind of ruling defined by the law for recitation of the Hqamah, it is his/her obligation to define her/his practical position and to derive the same on this basis, so that it should be a derivation resting upon this argument.
If the jurist does not come into possession of a [substantiating] argument which specifies the kind of divine-law ruling that is associated with 'iqamah, then the ruling defined by law will remain uncertain to the jurist. In this case the jurist will replace the first question which he proposed with a new question, as follows: What are the [general] rules that define the practical position in the face of the uncertain ruling? These rules are called procedural principles.
An example is the priority of exemption. This principle says that any instance of making something obligatory or prohibited which is not clearly based on an argument has no implication for human conduct and one is not forced to exercise precaution in respect to it or to feel restricted by it. The derivation of a ruling in this situation rests on a procedural principle rather than a substantiating argument. The difference between a procedural principle and a substantiating argument is that the principle does not firmly grasp [“substantiate”] the actual state of things but only defines a practical duty towards it. However, it is one method of derivation and thus we may subdivide the process of derivation into two types. The first is derivation based upon a substantiating argument, like the derivation obtained from a prooftext which indicates the divine-law ruling. The second is derivation based upon the procedural principles such as the derivation obtained from the priority of exemption.
Since the discipline of jurisprudence came into existence in order to know the commonly shared elements in the process of derivation, it supplies both types of derivation with their commonly shared elements. On this basis we subdivide jurisprudential discussions into two types. We speak in the case of the first type about the commonly shared elements in the process of legal derivation which are drawn from substantiating arguments for the ruling. In the second case we speak of the commonly shared elements in the process of legal derivation which are drawn from the procedural principles.
[Probativity of assurance is] the element common to both types
There is one shared element among the commonly shared elements in the procedure of derivation which enters into all processes of derivation in both its types, that based on a substantiating argument and that based on a procedural principle. This element is the probativity of assurance. We mean by assurance the disclosure of a certain affair to a degree which doubt does not degrade.
The meaning of probativity of assurance is summed up in two things:
1. One is that if the servant is involved in disobeying his/her master as a result of acting according to his/her assurance and belief, his master has no right to punish him/her, and the servant has an excuse for disobedience to the master on the basis that he acted according to his own assurance. For example, if the servant is mistakenly assured that the drink before him/her is in reality not wine and so he drinks it, relying on his assurance even though the drink is in fact wine, then the master has no right to punish him/her for drinking it as long as s/he has relied on his/her assurance. This is one of the two aspects of the probativity of knowledge, and it is called the aspect of exculpatoriness.
2. The other aspect is that the servant when s/he is involved in disobedience to the master as a result of his abandoning an action in spite of his/her assurance [that it must be done], then the master has the right to punish him/her and to advance his/her assurance as evidence against him. Thus, if the servant is assured that the drink before him/her is wine and then drinks it and it is in reality wine, then the master has the right to punish him/her for his/her disobedience, because the servant had knowledge of the prohibited nature of wine but drank it and so s/he will not be excused in that matter. This is the second aspect of the probativity of assurance and it is called the aspect of inculpatoriness.
It is self-evident that probativity of assurance in this sense which we have described is something that no process of deriving a divine-law ruling can do without, because the jurist always brings a result from the process of derivation, which is knowledge of the practical position before the divine law and the determination of that position on the basis of either a [substantiating] argument or a procedural principle. In order that this result be effective one must have prior acknowledgment of the probativity of assurance, since were assurance not evidence [for or against the actor] and were it not sound to offer it as an argument of the master against the servant and of the servant against the master, then the result which the jurist would bring forth from the process of derivation would be null. This is so because the jurist's act [of derivation] is in itself not evidence [for or against anyone]. So in any process of derivation the element of the proba-tivity of assurance must enter in order that the process bear fruit and that the jurist bring forth a positive result. By virtue of this, the proba-tivity of assurance has become the most general of the commonly shared jurisprudential elements and the broadest of them in scope.
The probativity of assurance is not just a commonly shared element in the processes of the derivation by the jurist of the ruling defined by the law. Rather it, in reality, is a basic condition for the study by the specialist in jurisprudence of the commonly shared elements themselves. Thus, when, for example, we study the question of the probativity of traditions or the probativity of the prima-facie sense in common usage, we make such an attempt precisely to obtain knowledge of the true situation [before the law] in that question. So if knowledge and assurance were not evidence, then what point would there be in studying the probativity of traditions or of the prima-facie sense in common usage?
For, by their discussions the jurist and the specialist in jurisprudence both seek to attain knowledge of a conclusion in legal understanding: namely, [for the jurist] “the definition of the practical position before the law;” or [for the specialist] knowledge of what is, in jurisprudential terms, “the commonly shared element.” So, without prior acknowledgment of the probativity of knowledge and assurance the discussions of both become futile and useless. The probativity of assurance is firmly established by the judgment of reason; for reason judges that the Master, may He be praised, has the right to claim the obedience of a human in all the obligations owed to the Master and in all the injunctions and commandments and prohibitions which s/he learns about. So if a human learns of a compulsory ruling from the Master which is of “obligatory” or “prohibited” nature, then that compulsory ruling from the Master enters within the scope of the right of obedience, and it becomes the claim of the Master against the human that s/he comply with that compulsory nature of which s/he has learned. If s/he falls short in that, or has not fulfilled the claim to obedience, s/he is worthy of punishment. This is the aspect of inculpatoriness [one of the two aspects] of the proba-tivity of assurance.
From another point of view reason also judges that a human, assured of the absence of compulsory duty, has a right to act as pleases him/herself. If the compulsory duty is established in reality, [given that the legal agent is mistakenly assured to the contrary] it is not the right of the Master to claim obedience from the human. Nor is it possible for the Master to punish him for his disobedience as long as the human is assured of the absence of the compulsory duty. In the discussion of the probativity of assurance this is the aspect of exculpa-toriness.
Just as reason comprehends the probativity of assurance, so too it comprehends that its probativity cannot be divorced from assurance but is [inseparably] linked to it. It is not possible even for the Master to strip assurance of its probativity and to say that if you are assured of the absence of compulsory duty then you are not excused; or to say that if you are assured that a compulsory duty exists, you have the right to neglect it. All this is impossible according to the judgment of reason, because the aspect of exculpatoriness and the aspect of inculpatoriness cannot be separated from assurance under any condition whatsoever. Such is the meaning of the jurisprudential principle advocating the impossibility that the Lawgiver should deter one from acting according to assurance.
You might say that this jurisprudential principle means that if the servant becomes entangled in a mistaken belief and so gains assurance that the drinking of wine is lawful, then it is not the Master's right to warn her/him of the mistake. The answer is that the Master is capable of warning the servant of the mistake and of informing the servant that wine is not permitted, because that would cause the [mistaken] assurance to fall away from the mind of the servant and to restore him/her to that which is correct. The jurisprudential principle mentioned above only confirms the impossibility that the Master should deter one from acting according to assurance as long as the assurance remains firmly established [in the mind of the servant]. In the case of assurance concerning the lawfulness of drinking wine it is possible for the Master to cause the servant's assurance to cease. But it is impossible that He deter the servant from acting according to assurance and that He punish him/her on that basis as long as his/her assurance remains firmly established and his/her conviction of its lawfulness stands.
Type 1: substantiating arguments
An argument that the jurist relies upon in derivation of a divine-law ruling either leads to knowledge of the ruling or it does not. In the first case the argument is assured and gains its legal character and its probativity from the probativity of assurance, because the [substantiating] argument in this case leads to assurance concerning the ruling, and assurance is evidence according to the judgment of reason. Therefore it is incumbent on the jurist to construct his/her derivation of the divine-law ruling on the basis of such an argument. One example [of an assured divine-law argument] is the maxim which states: “Whenever something is mandatory that which is preliminary to it is also mandatory.” So this maxim is considered to be an assured argument for the mandatoriness of ablution in its character as a necessary preliminary to prescribed prayer.
In the second case, the [substantiating] argument is deficient because it is not assured. Yet a deficient argument, if the Lawgiver rules in favor of its being evidence and orders reliance upon it in the process of derivation in spite of its deficiency, becomes as good as an assured argument and it becomes incumbent on the jurist to rely upon it. An example of a deficient argument which the Legislator has made evidence is the tradition related by a [single] reliable authority. For a tradition from a single reliable authority does not lead to knowledge [as reason would judge] because of the possibility of error or the possibility that it may be anomalous [because it disagrees with what is related by other reliable authorities]. It is a conjectural and deficient argument. The Lawgiver, however, has made it evidence and ordered that it be followed and be assented to. Thus it is raised by virtue of this [divine ruling] to the level of an assured argument.
When the Lawgiver has not ruled in favor of the probativity of a deficient argument, it is not evidence [at all] and reliance upon it in derivation is not permissible, because it is a deficient argument possibly subject to error. We may be in doubt and not know whether the Lawgiver has made a deficient argument evidence or not, as we do not have a [substantiating] argument which either confirms its divine-law probativity or denies it. At such a time we must have recourse to a general principle that the experts in jurisprudence have stipulated for such an occasion. This principle says: “Any deficient argument is not evidence as long as the opposite [sc., the claim that this particular type of deficient argument does count as evidence] is not confirmed by a substantiating divine-law argument.” This is the meaning of what is said in the discipline of jurisprudence, “As for conjecture, the presumption is its non-probativity, except for that conjecture which departs [from the presumption] because of the presence of an assured argument.” We draw the conclusion from this that a substantiating argument worthy of being relied upon in the study of the divine law is either an assured argument [in its own right] or else a deficient argument whose probativity in divine law has been established by an assured argument.
Subdivisions of the discussion
The substantiating argument concerning a legal question, whether it be assured or not, is divided into two divisions:
1. The first is the divine-law argument [proper]. By it we mean everything that emanates from the Lawgiver which has signification for the divine-law ruling and that includes the Noble Book and the sunna. The latter consists of what an infallible person said or what he did or what he tacidy consented to.
2. The second division is the rational argument, by which we mean the propositions which reason grasps and from which it is possible to derive a divine-law ruling, like the rational proposition which holds that rendering something obligatory requires the rendering of its necessary preliminary obligatory.
The first division [i.e., the divine-law argument proper] is in its turn divided into two subdivisions:
1(a) The verbal divine-law argument, which is the speech of the Lawgiver whether it be found in the Book or the sunna.
1(b) The non-verbal divine-law argument such as the action of an infallible person and his/her implicit approval; that is, his/her remaining silent concerning the action of another in a way which indicates his/her acceptance.
We need to know three things concerning the first division in both of its subdivisions.
First is the [linguistic] signification of the divine-law argument and the fact that it is significant of something [intelligible] according to the prima-facie meaning in common usage.
Second is the probativity of that signification and that prima-facie meaning and the mandatoriness of reliance upon it.
Third is that [we must know that] the argument genuinely emanates from the Lawgiver.
On this basis the discussion concerning the first division is distributed into three discussions. The first discussion is concerned with the definition of signification. The second discussion is concerned with establishing the probativity of any signification and any prima-facie meaning [the verbal divine-law argument] has. The third discussion is concerned with establishing that the argument emanates from the Lawgiver.
1. The divine-law argument
A. The Verbal Divine-Law Argument (“Signification”)
Introduction
Since the signification of a verbal argument is associated with the general linguistic system of signification, we find it preferable to prepare for the discussion concerning the signification of verbal arguments through a summary study of the nature of lexical signification and the way it comes into being along with a general examination of it.
What “Designation” and “Lexical Connection” Are
There exist in every language connections between a group of utterances and a group of meanings. Each utterance is associated with a particular meaning in a way that causes us, whenever we form a mental image of the utterance, to transfer our minds immediately to a mental image of the meaning. This conjunction between conceptualizing the utterance and conceptualizing the meaning and transfer of the mind from the one to the other is what we name signification. So when we say, “The word 'water' signifies a particular liquid,” we mean by this that the conceptualization of the word 'water' leads to the conceptualization of that particular liquid. We call the utterance “signified” and the meaning “significance.” On this basis we know that the tie between the conceptualization of the utterance and the conceptualization of the meaning to a certain degree resembles the connection which we witness in our everyday life between fire and heat or between the rising of the sun and light. For just as fire leads to heat and the rising of the sun leads to light, similarly the conceptualization of the utterance leads to the conceptualization of the meaning. For this reason it is possible to maintain that the conceptualization of the utterance is a cause of the conceptualization of the meaning just as fire causes heat and sunrise causes light, except that the realm of the causal connection between the conceptualization of the utterance and the conceptualization of the meaning is the mind, whereas the realm of the tie of causation between fire and heat, or sunrise and light, is the external world.
The basic question in respect to this connection created in language between utterance and meaning is the question of the source of this connection and the manner in which it comes into being. For how is a tie of causality formed between utterance and meaning? How did conceptualization of the utterance become a cause of the conceptualization of the meaning in spite of the fact that the utterance and the meaning are two separate things that are utterly different? In answer to this fundamental question two lines of reasoning are usually mentioned in the discipline of jurisprudence, the first line being based on the connection of an utterance with its meaning growing out of the nature of the utterance itself, just as the connection of fire with heat grows from the nature of fire itself. Thus for example, the utterance “water” would be said by virtue of its nature to have a connection with the particular meaning which we understand from it. For this reason, this line of reasoning confidently asserts that the signification of a certain meaning is intrinsic and not acquired through any external cause.
This line of reasoning is incapable of fully explaining the situation, because, were the utterance's signification of the meaning and its connection with it intrinsic and not arising from any external reason, and if the utterance alone by its nature impelled the human mind to conceptualize the meaning, then why is a non-Arab incapable of making the transition to conceptualizing the meaning “water” at the time of conceptualizing the word al-ma'} Why is it necessary to learn the Arabic language in order for one's mind to make the transition to the meaning upon hearing the Arabic word and conceptualizing it? This is an indication that the connection that exists in our minds between the conceptualization of the utterance and the conceptualization of the meaning does not grow from the nature of the utterance, but rather from some other cause which requires that one master the language. Therefore signification is not intrinsic.
As for the other line of reasoning, it rightly denies intrinsic signification and assumes that the lexical connections between the utterance and the meaning originated in every language at the instance of some first person or first persons who invented that language and spoke in it, because they specified specific utterances for particular meanings. As a result of this specification, the utterances acquired connections with those meanings and each utterance came to signify a particular meaning.
That specification which those ancient people practiced and from which signification results is called designation. The practitioner of it is the “designator.” The utterance is the “designated.” The meaning is the “object of designation.”
In truth this line of reasoning, even though it is right in denying intrinsic signification, nevertheless advances only a short step toward solving the fundamental problem, which persists even after accepting the hypothesis which the proponents of this view put forward. For if, along with them, we hypothesize that the connection of causality originated as a result of an act which the founders of language undertook when they specified each utterance for a particular meaning, then we must ask what kind of act it was which these founders undertook.
We will find that the problem does not cease to exist, because as long as there does not exist an intrinsic connection, or any prior association between utterance and meaning, how then was the founder of language able to create a tie of causality between two things between which there is no connection? Is the founder's mere specification of [a meaning for] the utterance and his assigning the utterance to the meaning sufficient to be a cause for the conceptualization of the meaning, to make it become a cause for conceptualization of the meaning in reality?
We all know that neither the founder [the coiner of an expression] nor anybody else can make out of the redness of the red ink with which he writes a cause for the heating of water, not even were he to repeat the attempt a hundred times, saying “I have singled out the redness of the ink with which I write to be a cause for the heating of water.” Then how could he ever succeed in making an utterance be a cause for the conceptualization of [his] meaning [by somebody else] by merely designating it for that purpose without any prior connection between the utterance and the meaning? Thus we face the same problem we faced in the first instance. It is not sufficient for the solution of this problem to explain the connection of an utterance with its meaning on the basis of some activity undertaken by some [individual] founder of language. Rather, we must understand the content of the [whole] process in order to know how the connection of causality arose between two things which had no connection.
The proper solution of the problem is to understand that the connection of causality that exists in language between utterance and meaning is in agreement with one of the general laws of the human mind. The general law is that when the conceptualization of one of two things is accompanied numerous times in the human mind by the conceptualization of the other, even if only by coincidence, a connection arises between the two, and conceptualization of one becomes a cause for the mind's transference to the conceptualization of the other.
An example of this in our everyday lives is that we live with two friends who never part in the various situations of their life and we always find them together. After that, if we see one of the two friends alone or hear his name, our mind hastens to conceptualize the other friend, because seeing them together repeatedly has created a connection in our conceptualizing faculty. This connection makes our conceptualization of one a cause of conceptualizing the other.
It is sometimes sufficient for the thought of one of two things to be associated with the thought of the other only once for a connection to arise between the two. This happens when two concepts are associated in a striking circumstance. For example, if a person travels to a country and is stricken with a bad case of malaria then cured of it and returns home, that conjunction of malaria and his trip to that country may produce a connection between the two: whenever he conceptualizes that country, his mind moves to conceptualizing malaria.
If we study the connection of causality between utterance and meaning on this basis, the difficulty disappears, since we can explain this connection by describing it as a result of the association of the conceptualization of a meaning with the conceptualization of an utterance in a form that is repeated or in a circumstance that makes an impression, a thing which leads to the existence of a connection between the two, as occurred in the cases mentioned above.
It still remains for us to ask [exactly] how the conceptualization of an utterance became associated with a specific meaning on repeated occasions or in circumstances that make an impression, producing the existence of a lexical connection between the two.
The answer to this question is that some utterances have been spontaneously associated with specific meanings on numerous occasions and so a lexical connection has arisen between the two. The word “ah” may be of this variety, since human beings by their nature have been accustomed to uttering it from their mouths whenever they feel pain. In this way the word “ah” has become associated in their minds with the idea of pain, and whenever one hears the word “ah” one's mind moves to the idea of pain.
It is probable that before any language existed among humankind, these connections which exist between utterances of the type “ah” and their meanings had attracted human attention, as a result of the spontaneous connection between the two. In this way humankind began to create new connections between utterances and meanings. Utterances were joined with meaning by a conscious and intentional process in order that there exist a connection of causality between the two. Proper names of persons are the best example of this, for when you wish to call your son “ All” you join the name “ All” to your new son in order to create a lexical connection between them; and the name “ Ali” becomes the signiner of your son. This activity of yours is called designation. Designation is the activity by which you join an utterance with a meaning, as a result of which the mind always leaps to the meaning upon conceptualizing the utterance.
On this basis, we are able to compare designation with what you do when you ask about an eye doctor and you are told that he is Jabir; then you wish to plant his name in your memory and cause yourself to recall it whenever you wish. So you attempt to associate him with something close to your mind and, for example, you say, “Yesterday I read a book which made a great impression on me, the author of which is named Jabir; so let me always remember that the name of the eye doctor is the name of the author of that book.” In this way you create a special association between the author of the book and the doctor Jabir, and thereafter you are able to recall the name of the doctor when you conceptualize that book. This method of creating an association does not differ essentially from the use of designation as a means to create a lexical connection.
On this basis we know that among the results of designation is the immediate occurrence of the meaning designated for the utterance, and its spontaneous suggestion to the mind, by merely hearing the utterance, on account of this connection which designation has established. Hence one can infer that designation is present by virtue of there being spontaneous suggestion in the mind. One can take spontaneous suggestion as a sign that the spontaneously suggested meaning is the meaning designated for the utterance, because the effect reveals the [necessary existence of the] cause. Hence, spontaneous suggestion is counted among the signs of literal meaning.
What is “Use”?
After the utterance has been designated for a meaning, the conceptualization of the utterance becomes a cause for the conceptualization of the meaning. At that moment the time of benefiting from these lexical connections which subsist between the two comes. So if you wish to convey a certain meaning to someone else and cause him/her to conceptualize it in his/her mind, then it is possible for you to speak that utterance which has become a cause for conceptualization of the meaning. When your companion hears it, his/her mind transfers to its meaning by virtue of the connection of causality between the two. Your employment of the utterance with the intention of evoking its meaning in the mind of a listener is called “use.” For the use of an utterance for its [designated] meaning means that a person creates an utterance in order to prepare the mind of another to transfer to its meaning. The utterance is called “that which is used” and the meaning “that for which it is used.” The user's intention in the evoking of meaning in the mind of the hearer by use of an utterance is called the intention in use.
Every use requires the conceptualization by the user of the utterance and its meaning. However the user's conceptualization of the utterance is usually instrumental, as a mirror is used in the act of seeing, while his/her conceptualization of the meaning is like an independent and direct act of seeing. Thus the utterance and the meaning are like mirror and image. Just as you look into a mirror and are unaware of it while your entire regard is for the image, similarly you look at the utterance in the same way as if it were a mirror to the meaning while remaining unaware of the utterance with your entire regard directed to the meaning.
[Just as you interpret the image of an eye seen in a mirror as an eye in reality, whereas in fact you are seeing a reflection and have therefore made two apperceptions, first that there is an image that can be interpreted as an eye and second that this image is a direct reflection of reality, in the same way you perceive a designated form of utterance and move on mentally to identify the designated meaning of the utterance with something real. Yet normally you are aware of making only one perception not two.]
If you ask, “How do I regard the utterance while remaining unaware of it? Is this not a contradiction?” They will answer you that the mirror-like act of regarding the utterance is the act of totally absorbing the utterance in the meaning. That is to say, you perceive the utterance as dissolved in the meaning and as becoming identical with the act of regarding the meaning. This kind of regard in which one thing disappears into something else is consonant with unawareness of it.
On this basis a group of scholars, such as [Khorasanf, died 1329/1911] the late author of Kifayat al-'Usul, believed in the impossibility of the use of one utterance for more than one meaning. They believed this because it would require the complete absorption of the utterance in the one meaning and in the other, and the complete absorption of one thing two times on a single occasion is not rational. One might say, “I am able to unite two meanings by creating a composite containing them together and completely absorbing the utterance while regarding that composite.” The answer is that this is possible, but it is the use of the utterance in a single meaning, not in two meanings.
Literal Speech and Figurative Speech
Use is divided into literal and figurative. Literal use is the use of the utterance in the meaning designated for it between which and the utterance there exists a lexical connection by reason of the act of designation. For this reason the designated meaning is given the name “the literal meaning.”
Figurative use is the use of the utterance in a meaning other than that for which it was designated, but one which resembles in some respects the meaning for which the utterance was designated. An example is the use of the word “sea” referring to a learned person with abundant knowledge because he resembles the sea in abundance and amplitude. The name “figurative meaning” is applied to a meaning which resembles the meaning designated for the utterance. The connection between the utterance and the figurative meaning is a secondary connection resulting from its primary or lexical connection with the meaning designated for it, because it grows from the resemblance existing between the meaning designated and the figurative meaning.
Literal use leads directly to its goal, which is an unconditional transfer of mind on the part of the listener to conceptualization of the meaning, because the connection of causality exists in language between the utterance and the meaning for which it was designated, guaranteeing the realization of this goal.
As for figurative speech, it does not carry the mind of the listener to the meaning, since no lexical and causal connection exists between the utterance “sea” and the learned person. So in order to realize his goal in figurative use, the user needs a context which explains his intention. If s/he says, for example “a sea of learning,” the word “learning” is a context for the figurative meaning. For this reason it is usually said that figurative use requires a context, unlike literal use. We distinguish the literal meaning from the figurative meaning by the immediate suggestion of the very utterance itself, because immediate suggestion in this way reveals the designation as discussed above.
The Figurative is Sometimes Turned into the Literal
Specialists in jurisprudence have correctly observed concerning figurative use that, although in the beginning it may have required a context, when such use of the utterance in the figurative meaning with a context becomes frequent and is often repeated, a new connection exists between the utterance and the figurative meaning. The utterance as a result becomes designated for that meaning and leaves the realm of the figurative for the literal. After this, no need for the context remains. This situation is called self-specifying designation. The procedure of designation on the part of the original designator of meaning for utterance is, in contrast, called specifying designation. We are able to explain this [matter] easily in light of our method of explaining the nature of designation and lexical connection, because we have come to understand that lexical connection grows from association of the utterance with a meaning that is frequently repeated or takes place in a striking circumstance. If the utterance is used in a figurative sense very frequently, the conceptualization of the utterance is repeatedly associated with the conceptualization of that figurative meaning in the mind of the listener, and this repeated association leads to the existence of a lexical connection between the two.
The Classification of Language into Substantive and Relational Meanings
As you have read in grammar, the words of language are subdivided into nouns, verbs and particles. Nouns signify meanings which we understand from those nouns regardless of whether we have heard the noun in isolation or in the setting of speech, whereas particles have no meaning unless we have heard them in the setting of speech. That which is signified by a particle is always the relationship between substantive [or nominal] meanings considering all the different aspects of their [possible] relationship. So when we say: “The fire in the hearth is burning,” “in” signifies a particular relation between the two substantive concepts which are “fire” and “hearth.” The following two considerations offer evidence that the significance of particles is relationship.
1. The first is that the meaning of the particle does not appear if the particle is separated from speech. That is so only because what a particle signifies is the relation between two meanings and when no other meanings are contained in that speech there is no scope for hypothesizing the relation of the two meanings.
2. The second is that there is no doubt that what is signified in speech is interrelated in its parts and there is no doubt that this interrelated thing signified includes both the relationship and the interrelated meanings. As long as no signifier for that relationship is present it is impossible to grasp such a relationship. Otherwise meanings would come to the mind while remaining scattered without any interrelation. The noun is no signifier of such relationship; otherwise we would understand its meaning only in the context of speech, because relationship is not understandable except in the framework of interrelated meanings. In this way it is specifically established that the signifier of relationship is the particle. Particles differ corresponding to the different kinds of relationship which they indicate. If every relation means a connection between two sides, then it is accurate to say that relational meanings are connective and correlative, whereas substantive meanings are independent meanings. Anything which indicates a connective and correlative meaning we call in jurisprudence a “particle.” Anything which indicates an independent meaning we call in jurisprudence a “noun.”
As for the verb, it is composed of its matter and its form. We mean by its matter the root from which the verb is derived and we mean by its form the particular mold into which that matter is poured. The matter in the verb does not differ from any noun. Thus for the word “burns” the matter is “burning.” This has a substantive object of signification. Yet the verb is not [simply] equivalent to the object signified by its matter, rather it means more than that, as is evident from the impermissibility of replacing the word “burning” with the word “burns.” This shows that a [finite] verb means more than what its matter [i.e., its root] means. This additional meaning arises from the form.
In this way we come to understand that the form of the verb is designated to [specify] some meaning. This meaning is not an independent substantive meaning, as is evident by the fact that, were the meaning independent, it would be permissible to substitute the noun signifying that meaning and [conversely, to substitute] for the verb the noun signifying that which is signified by the matter of the verb. Whereas we observe that the verb cannot be replaced in the sequence of speech by bringing together two nouns. On this basis it is firmly established that what is signified by the form [of a verb] is a connective, relational meaning, and for this reason the above-mentioned substitution is impossible. This relation that the form of the verb indicates is a relation between that which is signified by the matter and that which is signified by something else in speech such as the subject [of the verb] when we say “The fire burns.” For the meaningful content of the form of the verb is the relation between “burning” and “fire.”
We gather from the preceding that the verb is a compound of a noun and a particle, for its matter is a noun and its form is a particle. Hence it is accurate to say that language is subdivided into two categories: nouns and particles.
The Form of the Sentence
We have come to understand that the verb has a form which indicates a relational meaning - that is, indicates a relationship - and the same is true of the sentence also. We mean by sentence two or more words between which there is interrelationship. So when we say “ All is the Imam,” we understand from the word “ All” its substantive meaning, and from the word “Imam” its substantive meaning. In addition to that, we understand a particular relationship between these two substantive meanings. This relationship is indicated neither by the word “ Ali” alone or by the word “Imam” alone, but it is precisely the sentence with its specific form that indicates the relationship. This fact means that the form of the sentence indicates a kind of relation, which is to say, a particle-like or relational meaning.
We conclude from what has preceded that language can be classified from an analytical point of view into two classes: one of them is the class of substantive meanings, and this class includes nouns and the infinitives of verbs. The second is the class of particlelike or relational meanings, that is to say, connectors, and it includes the particles and the forms of verbs and the forms of sentences.
The Complete Sentence and the Incomplete Sentence
When we observe sentences we find that some sentences indicate a completed meaning which can be communicated by the speaker and can be assented to or denied by the listener. In some incomplete sentences that does not arise and it is as if they were virtually a single word. So, when you say “the learned Muffd,” we continue to expect something, just as would be the case had you said “Al-Muffd” and fallen silent at that point. This case is in contrast with the case in which you said “Al-Muffd [a scholar who died in 412/1021] is learned.” For in that case the sentence is completed and needs no complementation.
The underlying reason for the distinction between the complete sentence and the imperfect sentence goes back to the kind of connection which the form of the sentence and the root of the relationship indicate. The form of the incomplete sentence indicates an integrating relationship; that is, the descriptive element is integrated with the thing described in a way such that the combination becomes a single, particular concept and a particular unit. For this reason the incomplete sentence becomes virtually an individual word. As for the complete sentence, it indicates a non-integrating relationship in which both sides remain distinct from one another. In such a case two things between which there is a tie, such as subject and predicate, are present before the mind.
Sometimes a single sentence includes both integrating and non-integrating relations, as when we say “The learned Muffd is a teacher.” For the relation between the description and the thing described, the subject, is integrating, whereas the relation between the subject and the predicate is non-integrating. The completeness of the sentence arises from the inclusion in it of this second relationship.
If we examine the incomplete sentence and particles such as “from” and “to” with care, we find that they all indicate incomplete relationships after which it is not right to fall silent. Just as it is not permissible to say “The learned teacher ...” and say no more, similarly it is not permissible to say “The journey from al-Basrah ...” and say no more. This [kind of construction] means that the relational words and the forms of incomplete sentences all indicate integrating relationships in contrast to the form of the complete sentence, for that which is signified by these complete sentences is a non-integrating relationship regardless of whether the sentence be verbal or nominal.
The Lexical Signified and the Assentable Signified
We have said previously that the signification of an utterance for a meaning consists in the conceptualization of the utterance passing to a conceptualization of the meaning. The utterance is called “signifier” and the meaning which we conceptualize on hearing the utterance is “the signified.”
This signification is lexical. By this we mean that it arises from the designation of an utterance for a meaning, because designation creates the connection of causality between the conceptualization of an utterance and the conceptualization of its meaning. It is on the basis of this connection that lexical signification arises. Hence, that which is signified is the lexical meaning of the utterance.
This signification cannot be separated from the utterance whenever we may hear it and from whatever source it may come. Thus when we hear the sentence “Truth is victorious,” our minds immediately transfer to the lexical matter signified, whether we have heard it from a self-aware speaker or from a sleeper in a state of unawareness or even were we to hear it as a result of the friction of two stones. So we conceptualize the meaning of the word “truth” and the meaning of the word “victorious” and conceptualize a completed relation for which the form of the sentence has been designated. This kind of signification is consequently called conceptual signification.
Yet if we compare these situations we find that when the sentence issues from a sleeping person or is produced as a result of the friction between two stones, only the lexical matter which is signified is produced, and its effect is limited to the creation [in our minds] of conceptualizations of truth and victory and of a completed relation between them. But when we hear the sentence from a self-aware speaker, the signification does not stop at the level of conceptualization but passes beyond it to the level of being assentable, since the sentence at that point reveals psychological matters internal to the speaker. Thus from the issuance of the sentence from the speaker we infer the existence of an intention in use in his/her mind; that is, s/he wishes the lexical meaning of the word “truth” and the word “victorious” and the particular form of sentence to occur to our minds and for us to conceptualize these meanings. Similarly we also know that the speaker only wants us to conceptualize these meanings, not in order that s/he create mere conceptualizations in our minds, but rather for some purpose s/he has in mind. In the preceding example, the sentence “Truth is victorious,” the underlying purpose is to inform us about the established existence of the [grammatical] predicate for the subject. For the speaker wishes from us that we conceptualize the meanings of the sentence only in order that s/he inform us of their assured existence in reality. The term intention to be serious is applied to this fundamental purpose in the mind of the speaker. Signification of these two matters, the intention in use and the intention to be serious, is called assentable signification, because it is a signification that reveals the intention of the speaker and calls for our assent to it, not simply for our conceptualization of it and nothing more.
In this way we know that the complete sentence has, in addition to the conceptual and lexical matter signified, two matters signified which are assentable: the first is the intention in use, since we know from the way in which the sentence issued from the speaker that s/he wants us to conceptualize the meaning of the words. The second is the intention to be serious, which is the fundamental intention by reason of which the [serious and aware] speaker desires us to conceptualize these meanings [as obtaining in the real world.] Sometimes the sentence is stripped of the second kind of object of signification, namely assentable signification. This case occurs when the sentence issues from the speaker on an occasion of jest, not on an occasion of seriousness. If the speaker only intended to create conceptualizations in the mind of the hearer for the meanings of the words in his sentences, then no intention to be serious exists on this occasion but only the intention in use.
Assentable signification is not something that is lexical, that is to say, it does not express a connection arising from a [word-coining] designation between an utterance and a signified matter subject to assent. For designation creates a connection only between the conceptualization of an utterance and the conceptualization of its meaning, not between the utterance and its signified assentable matter.
Rather, it is precisely from the disposition of the speaker that assentable signification arises, for when a human is in a state of consciousness, self-awareness and seriousness and says “Truth is victorious,” his/her disposition indicates that he did not speak this sentence absent-mindedly or in jest, but spoke it only with a specific, conscious intention.
In this way we come to understand that when we hear a sentence such as “Truth is victorious,” we conceptualize lexical meanings for subject and predicate because of a designation which has created a connection of causality between the conceptualization of the utterance and the conceptualization of the meaning. On the other hand, it is by the speaker's disposition that we discover the conscious intention of the speaker. The former conceptualization of ours embodies conceptual signification, whereas the latter discovery of ours [about the speaker being conscious, etc.] embodies assentable signification. The meaning which we conceptualize is the conceptual and lexical signification of the utterance. The intention which we discover in the speaker's mind is the assentable and psychological signification of the speaker's disposition.
Thus we discover two sources of signification. The first is language with the [system of] designations which it includes; language is the source of conceptual signification. The other source of signification is the disposition of the speaker, which is the source of assentable signification, i.e., what the utterance signifies psychologically and as subject to assent. An utterance reveals the intention of the speaker only when it is produced in a state of wakefulness and consciousness and seriousness. Such a disposition [of the speaker] is the source of assentable signification. Thus we find that when an utterance emanates from the speaker in a state of sleep or absent-mindedness, it has no assentable signification or psychological significance [about the speaker's intention].
Declarative and Performative Sentences
The sentence is usually classified as declarative or performative. In our everyday life we sense the distinction between the two. When you speak of your sale of a book yesterday and say “I sold [bi c tu] the book for a dinar,” you see that the sentence differs fundamentally from what you would say when you wish actually to conclude a transaction with a customer and so say “I offer to sell [bi c tu] you the book for a dinar.” Even though the sentence in both cases indicates a self-contained relationship between selling and the seller, i.e., between you and the sale, our understanding of the sentence and our conceptualization of the relationship in the first case differs from our understanding and conceptualization of the relationship in the second case [in spite of the fact that the same verb bi'tu is used in the same tense in both sentences]. For when the speaker in the first case says “I sold the book for a dinar,” s/he conceptualizes the relationship represented in the sentence as an actual reality over which s/he possesses no power except to convey information should s/he wish to mention it. But when, in the second case, s/he says “I offer to sell the book for a dinar,” s/he conceptualizes the relationship, not as an actual reality which is finished and decided, but conceptualizes it in its quality as a relationship s/he hopes to realize. We conclude from this that the declarative sentence is designated for the complete relationship viewed as actual reality and something finished and decided. But the performative sentence is designated for a complete relationship viewed as a relationship the realization of which is desired.
There are some religious scholars, such as [Khorasanf] the late author of Kifdyat al- 'Usui, who believe that the relationship which “I sold” indicates in the declarative case and the one which “I offer to sell” indicates in the performative case are the same in the two sentences, between which no difference is found at the level of the conceptual matter signified. According to them, the difference lies at the level of assentable significance. They believe so because the seller seeks by the sentence [bi'tu, “I offer to sell”] to bring to the fore the consideration of transferring ownership and the performance of a contract of exchange by this means, whereas from the sentence bi'tu [“I sold”] the non-seller seeks by the sentence to deliver an account concerning the content of the sale. So, the assentable significance differs but the conceptual significance does not.
It is obvious that if we understand this discussion rationally we see that [this view] is only at all tenable in cases in which the same utterance is used in the two sentences, one performative and the other declarative, as in bi'tu. It is not possible for this discussion to apply equally when either the declarative or the performative is expressly specified. The form of the imperative, for example, is a performative sentence not used for recounting the occurrence of an event. The imperative indicates precisely the seeking of the occurrence [of an event]. It is not possible in this case [of the imperative] to claim that conceptual significance should not act the same way here as the conceptual significance of a declarative sentence and that the difference between the two should lie only at the level of assentable significance. The argument for the impossibility of this claim is that we sense the difference between the two sentences even when stripped of assentable significance and when heard from a speaker who is unaware of what s/he is saying.
Significations Which Jurisprudence Discusses
We can divide lexical elements from a jurisprudential point of view into commonly shared elements in the procedure of derivation, and components restricted to particular cases in such a procedure. The commonly shared elements are all linguistic instruments which enter properly into any argument, whatever the kind of subject with which this argument deals may be. An example of this is the imperative form of the verb, for it is possible to use it in relation to any subject-matter.
The particular elements in the procedure of derivation are all linguistic instruments which should only enter properly into an argument that touches upon a specific subject, and has no effect in derivation for another subject. An example is the word “charity;” for it cannot be part of any argument other than an argument which includes a ruling associated with charity. There is no association between arguments which include a ruling about “prayer,” for example, and the word “charity.” So for this reason the word “charity” is a particular element in the process of derivation. Accordingly, in respect to language, jurisprudence studies the first category of the lexical instrumentalities that are considered commonly shared elements in the process of derivation. It investigates what is signified by the imperative form of the verb: does it indicate obligatory duty or recommended behavior? It does not investigate what is signified by the word “charity.” Also among the first category of lexical instrumentalities is the [presence of a] conditional particle, because it is appropriate to introduce it into the derivation of rulings from any verbal argument whatever the kind of subject associated with it may be. Thus from the prooftext saying “When the sun passes the zenith, prayer becomes obligatory” we can derive the ruling that the manda-toriness of prayer is associated with decline of the sun by the argument of the [presence of the] conditional particle. From the prooftext saying “When the new moon of the month of Ramadan appears, the fast becomes obligatory,” we can derive the ruling that the mandatoriness of the fast is associated with the event of the new moon. For this reason jurisprudence studies the conditional particle in its quality as a commonly shared element and discusses the kind of relation which it indicates and the conclusions drawn from it in the derivation of the divine-law ruling. The same is the case with the plural form defined by the definite article, because it is a lexical instrument appropriately introduced into any verbal argument, whatever kind of subject it may be associated with.
In the following we mention some examples of these commonly shared instruments which specialists in jurisprudence study.
i- The Form of the Imperative
The imperative form of the verb means commands such as “go!”, “pray!”, “fast!”, “strive!”. It is usually considered by specialists in jurisprudence as established that lexically this form indicates the mandatoriness of something. This claim causes us to wonder whether these distinguished figures mean to advocate by their statement about the imperative form indicating mandatoriness that the imperative form of the verb indicates the same thing that the word “mandatoriness” indicates? Are the imperative form and the word “mandatoriness” synonymous? How can one make this assumption, considering that we sense inwardly that the word “mandatoriness” and the imperative form are not synonymous? Otherwise it would be permissible to substitute one for the other. As long as this substitution remains unacceptable, we know that the imperative form of the verb indicates a meaning that differs from the meaning that the word “mandatoriness” indicates. Comprehending the prevailing claim among specialists in jurisprudence that the imperative form of the verb indicates mandatoriness becomes difficult at this point.
The truth is that this claim requires analysis of what is signified by the imperative form of the verb in order for us to understand in what sense it indicates mandatoriness. When we examine the imperative verb closely we find that it indicates a relationship between the meaning of the verb and its subject, viewed as a relationship the achievement of which is desired, as is the dispatching of the legal agent toward its accomplishment. Have you seen a hunter when s/he dispatches the hunting dog to his prey? That picture in which the hunter conceptualizes the dog's going to his prey when he dispatches the dog towards it is the same picture which the imperative verb indicates. For this reason it is said in the discipline of jurisprudence that the significance of the imperative form of the verb is the “dispatching relationship.”
Just as the hunter when s/he dispatches the dog toward its prey is sometimes dispatching it as a result of a strong desire to obtain that prey and an urgent wish for it, and sometimes the dispatching is from a desire that is not strong and a wish that is not urgent, similarly we sometimes imagine the dispatching relationship which the form of the imperative verb indicates as resulting from a strong desire and an urgent requirement, and we sometimes imagine it as a result of a weaker desire and a wish of lesser degree. In this light we are now able to understand the meaning of that jurisprudential claim that the form of the imperative verb indicates mandatoriness, because its meaning is that this form has been designated for the dispatching relationship in its character as a result of a strong desire and an urgent requirement. For this reason the meaning of requiring and mandatoriness are included within the picture by which we conceptualize the lexical meaning of the form upon hearing it, without the imperative verb becoming a synonym for the word “mandatoriness.” The meaning of the inclusion of requiring and obligation is not that the imperative cannot acceptably be used in the realm of things that are [merely] encouraged. On the contrary, this form can often be used on occasions of recommendation just as it is used on occasions of mandatoriness. Its use on occasions of mandatoriness is a literal use, because it is a use of the form in the meaning for which the form was designated. Its use on occasions of recommendation is a figurative use which the resemblance between recommendation and obligation justifies.
The argument that the form of the imperative was designated for mandatoriness in the sense we have mentioned is its spontaneous occurrence to the mind, because what comes first to mind is the common usage, as witness the fact that in common usage the giver of a command, when s/he commands a person under his/her authority with the imperative form but the latter does not do what s/he is commanded to do, offering as an excuse “I didn't know whether this is obligatory or [only] recommended,” the excuse is unacceptable: s/he is blamed for his/her failure to obey. This is so only because mandatoriness comes first to mind according to common usage of the utterance and occurs to one spontaneously. Spontaneous occurrence to the mind is a sign of literal meaning.
ii. The Prohibitive Form of the Verb
The prohibitive form is something like “Do not go!” The established view among experts in jurisprudence is that the prohibitive form indicates forbiddenness.
It is necessary that we understand this claim in a way similar to our understanding of the claim that the imperative form indicates mandatoriness, with the distinction that the prohibitive is restraining and preventing, while the imperative is dispatching and seeking [an act or acts]. The prohibitive form of the imperative therefore indicates a “restraining relationship.”
All of this means that when we hear the sentence “Go!,” we conceptualize a relationship between going and the person addressed. We form the conception that the speaker dispatches the person addressed towards the relationship and sends him to achieve it just as a hunter dispatches his dog toward the prey. When we hear the sentence “Do not go!,” we conceptualize a relation between going and the person addressed and we form the conception that the speaker is restraining the one addressed from that relationship and holding him back from it. It is just as if the hunting dog were to chase the prey and the hunter were to try to restrain the dog. It is for this reason that we have applied the term “restraining relationship.” Prohibitedness enters into what is signified by the prohibitive verb form in the same way as mandatoriness enters into what is signified by the imperative. Let us return to the example of the hunter: we find that when the hunter restrains his/her dog from pursuing the prey, sometimes such restraint could be a result of a strong dislike of the dog's pursuit of the prey, and at other times a result of mild dislike. This is entirely similar to the way in which we conceptualize the restraining relationship of which we have spoken, for we sometimes conceive it to arise from a strong dislike of the thing forbidden and at other times it arises from a mild dislike.
In this light the meaning of the claim that the prohibitive form indicates prohibitedness is that the form was designated for the restraining relationship in its character as a result of strong dislike; and this is prohibitedness. So prohibitedness is included within the conception by means of which we conceive the lexical meaning of the prohibitive form upon hearing it. The argument that the prohibitive form has been designated and established for this meaning in this way is spontaneous occurrence to the mind, as has previously been mentioned concerning the imperative form. At the same time the prohibitive form may be used on occasions when discouragement is intended, and one is prohibited from the thing discouraged because of the similarity existing between discouragement and prohibition. Its use on occasions of things discouraged is a figurative use.
iii. Absolute Expression
The explanation of such expression is that when a person wishes to order his child to respect his Muslim neighbor s/he normally is not content to say to him/her “Respect your neighbor” but says “Respect your Muslim neighbor.” But if s/he wants his/her child to respect his/her neighbor whatever his/her religion then s/he says “Respect your neighbor,” and uses the word in an absolute sense; that is, s/he does not qualify it with a particular description. It is then understood from his/her speech that the imperative is not applied specifically to the Muslim neighbor but comprehends the non-believing neighbor as well. This comprehensiveness we understand as a result of the mention of the word “neighbor” stripped of qualification. This is called absolute expression, and the utterance in this case is called “absolute.”
On this basis divesting the word of verbal qualification is considered a sign of the comprehensiveness of the ruling. An example of this from a divine-law prooftext are the words of God Most High, “God has made trading lawful.” Here the word “trading” has occurred in speech stripped of any qualification. So this absolute expression indicates the comprehensiveness of the ruling for the permissibility of all kinds of trading.
Yet how the mention of the word in speech without qualification became a sign of comprehensiveness and what the origin of this signification is cannot be discussed in detail at this level. But we can say in brief that the prima-facie disposition of the speaker when s/he has an inner desire which impels him/her to speech is that s/he is in a position to set forth the completeness of that desire. So when s/he says “Respect your neighbor” and his desired meaning is the Muslim neighbor in particular, s/he is not content with what s/he has said but follows it normally with something which indicates the qualification of being Muslim. In any case in which s/he does not add something that indicates qualification we recognize that this qualification is not included in his/her desire since, were it included and yet s/he were silent about it, then that would contradict his prima-facie disposition, which necessarily means that he is in a position to explain the entirety of his judgment in speech. So by this inference we discover the absolute nature of the expression from silence and the absence of mention of any qualification. This is interpreted through the “context of wisdom [or rationality].”
iv. Particles of Generality
An example of a particle of generality is “every” when we say “Respect every person of moral integrity.” This is so because s/he who commands, when s/he wants to indicate the comprehensiveness of his/her ruling and its generality, is sometimes satisfied with absolute expression and the mention of the word without qualification as we have previously described. In this case s/he says: “Respect [your] neighbor.” But sometimes s/he wishes an increased emphasis on generality and comprehensiveness, and so employs a specific particle to signify that. Thus s/he says, in the previous example for instance, “Respect every neighbor.” Then the listener understands from this a greater emphasis on generality and comprehensiveness, and for this reason the word “every” is considered one of the particles of generality because it is designated for that purpose in language. An utterance, the generality of which the particle indicates, is called “general.” Such an utterance is considered as “added-to by a particle,” because the particle of generality has been added to it and made it general.
We conclude from this that an indication of generality is achieved in one of two ways. The first is negative and it is absolute expression, that is, mention of the word without restriction. The second is positive and it is the use of a particle of generality such as “every” and “all” and “the entirety” and similar expressions.
Specialists in jurisprudence have disagreed concerning the form of the plural preceded by the definite article, such as “the jurists” or “the contracts.” Some say that this form itself is also one of the particles of generality just like the word “every.” So when the speaker wishes to establish a ruling for all individuals and to indicate in a positive way generality for any [unmistakable] plural like “jurists” s/he adds the definite article and says, “Respect the jurists” or “Fulfill the contracts.”
Other specialists believe that the plural with the definite article is not one of the particles of generality, and that we only understand the comprehensiveness in the ruling when we hear the speaker say, for example, “Respect the jurists,” because of the absolute expression and the divestment of the word of qualifications, not because of the addition of the definite article to the plural - that is, by a negative, not a positive, method of arriving at the conclusion. So there is no difference between saying “Respect the jurists” and “Respect the jurist.” Just as our understanding relies in the second sentence on absolute expression for its comprehensive meaning, the same is the case in the first sentence. So [both] the singular and the plural with the definite article only indicate comprehensive meanings in a negative way [i.e., by the absence of qualifications].
v. The Particle of the Conditional
The particle of the conditional is a word such as “when” in our saying “When the sun passes the zenith, pray” and “When you enter a state of ritual consecration for the pilgrimage, do not use scent!” The sentence to which the particle of the conditional is added is a conditional sentence. It differs in its linguistic task from other sentences in which a conditional particle is not found. Other sentences establish a relationship between one word and another, like the relationship of the predicate to the subject in a categorical proposition [i.e., a statement about the members of two classes and their relation to one another]. A conditional sentence, however, ties together two sentences, the clause of the condition, or protasis, and the clause of consequence, or apodosis. Because of this tie of conditionality both sentences are transformed from a complete sentence to an incomplete sentence, and the complete sentence is the combination of the conditional sentence and its complement.
If we observe the two preceding examples of the conditional sentence we find that the condition in the first example is the declining of the sun from the zenith, and in the second example it is the entering a state of ritual consecration for the pilgrimage. As for what is made conditional, it is the significance of the sentence “Pray!” or “Do not use scent!” If the significance of “Pray!” in its quality as an imperative form is mandatoriness and the significance of “Do not use scent!” in its quality as a prohibitive form is forbiddenness, as has been discussed previously, then we know that that which has been made conditional is mandatoriness or prohibitedness respectively, that is to say, the divine-law ruling [as to the nature of the situation]. The meaning of saying that the divine-law ruling is conditional on the declining of the sun or on entering a state of ritual consecration for the pilgrimage [in which the use of perfume is forbidden] is that the ruling depends on the declining of the sun or entering into a state of ritual consecration and [the divine-law ruling] is restricted by that [condition]. That which is restricted ceases to have force when the restriction ceases.
From this it follows that the conditional particle indicates the disappearance of a legal ruling in case of the disappearance of a condition, because such disappearance is a result of the sentence's signifying the restriction of the divine-law ruling and its making the ruling conditional. Our saying “When the sun passes the zenith, pray!” indicates the non-mandatoriness of prayer before noon. Our saying “When you enter the state of ritual consecration for the pilgrimage, do not use scent!” indicates the non-prohibited nature of scent in the situation of not entering a state of ritual consecration for the pilgrimage. In this way the conditional sentence possesses two significances, one positive and one negative.
The positive significance is the establishment of the consequence at the same time as the establishment of the condition. The negative significance is that the consequence ceases when the condition ceases.
The positive significance is called the explicit significance of the sentence; and the negative, the implicit. Of every sentence which has this sort of negative significance it is said, according to common jurisprudential usage, that the sentence or proposition contains an implicit significance.
A certain specialist in jurisprudence has laid down a general rule about this negative significance in language, and has said, “Every lexical particle which indicates the restricted nature of a ruling and its delimitation must have a negative significance, since the particle indicates the disappearance of the ruling outside the scope of the bounds designated for the ruling.” The conditional particle is considered one of the corroborating instances of this general rule because it indicates the delimitation of the ruling by a condition.
Also among the corroborating instances of this general rule is the particle of limit when, for example, you say: “Fast until the sun sets.” For “fast” here is an imperative verb indicating mandatoriness and “until,” in its quality as a particle of limit, has indicated the fixing of a boundary and a limit for this mandatoriness which the imperative form indicates. The meaning of [sunset] being a limit to [the obligation to fast] is that it restricts [the ruling], which indicates the cessation of the obligation of fasting after sunset. This is the negative significance to which the term implicit has been applied. The negative significance of the conditional sentence is called the “implicit meaning of the condition” just as the negative significance of the particle of limit, such as “until” in the preceding example, is called “the implicit meaning of the limit.”
But when somebody says “Respect the righteous poor person,” that does not signify a restriction to the effect that an unrighteous person should not be respected, because this restriction is not a restriction of the ruling [as a whole] but rather an epithet and a restriction applying [only] to the poor person. The poor person is the subject of the ruling, not the ruling itself. As long as a restriction does not refer directly to the ruling, it has no signification for the implicit meaning. Hence it is said that there is no implicit meaning for the epithet, by which is meant words like the word “righteous” in this example.
The Probativity of the Prima-Facie Meaning
When we confront a divine-law argument it is important that we do not explain it merely in relation to its lexical and conceptual significance. Rather, it is important to explain it in relation to its assentable significance in order that we know what the Lawgiver intends by it. Frequently we observe that an utterance is correct in several lexical and commonly understood significations. How are we able to decide what the speaker intended on the basis of what he said?
At this point we can make use of two aspects of “prima-facie” meaning. The first is the prima-facie meaning of the utterance at the stage of conceptual signification for a specific meaning. The meaning of “prima-facie” at this stage is that this prima facie meaning rather than other meanings is the first to be conceptualized by a person on hearing the utterance. This meaning is the closest to the utterance from the point of view of language. The second is the prima-facie disposition of the speaker, in that what s/he means is in accordance with the prima-facie sense of the utterance at the stage of conceptual signification. That is to say that s/he intends the meaning closest to the utterance lexically considered [i.e., closest to the originally designated and literal sense]. This is what is called “prima-facie accordance between the 'category of assertion' and the 'category of reality.'“ It is a matter agreed upon in jurisprudence that the prima-facie disposition of the speaker in intending the meaning nearest to the utterance constitutes evidence.
The meaning of the “probativity of the prima-facie sense” is that the jurist is to adopt that sense as a basis for the explanation of a verbal argument in that light. So we should always assume that the speaker intended the meaning closest to the utterance
in the general lexical system, accepting his prima-facie disposition.
Therefore the probativity of the prima-facie sense is called “the priority of the prima-facie sense” because it makes the prima-facie sense a root principle for explanation of a verbal argument.
In the light of this conclusion we are able to recognize why we have
concerned ourselves in the preceding discussion with determining the lexical significance closest to the word and determining the prima-facie meaning of the word according to the general lexical system. Nevertheless, the important matter at the moment of interpretation of the verbal argument is the discovery of what the speaker intended in terms of meaning by his/her utterance, not what is the meaning nearest to the utterance in language. For, in light of the priority of the prima-facie sense, we understand that the tie between discovery of the meaning intended by the speaker and determination of the lexical significance closest to the word is extremely tight, because the priority of the prima-facie sense judges that the meaning that the speaker intends by the utterance is the same as the closest lexical significance, that is to say, the prima-facie meaning of an utterance lexically considered. So, in order to know the meaning intended by the speaker it is necessary that we know the meaning closest to the utterance lexically in order that we judge it to be the meaning intended by the speaker.
The argument for the probativity of the prima-facie sense consists of two prior premises. The first is that the behavior of the companions of the Prophet and of the Imams was based on acting both according to the prima-facie meanings of the Qur'an and sunna, and according to their taking these things prima facie as a basis for understanding them, as is plainly evident historically from the way they acted and believed.
The second is that infallible persons saw and heard others acting in this way and did not object to it at all. This fact indicates the soundness of this approach according to the divine law; otherwise they would have deterred people from it. By this means it has been established that the Lawgiver has endorsed behavior based on acting according to the prima-facie sense. Such is the meaning of the probativity of the prima facie in divine law.
Applications of the Principle of the Probativity of the Prima-facie Sense to Verbal Arguments
In what follows we examine three situations for the application of the principle of the probativity of the prima facie.
1. The first is that in which the utterance in the argument has a single, unique meaning in language and it is not appropriate to use [that utterance] to signify any other meaning in the common-usage lexical system. The general principle that is prescribed [i.e., the probativity of the prima facie] in this situation is that the utterance refers to its unique meaning; it is said that the speaker intended that meaning because the speaker always intends by the utterance the meaning defined for it in the common-usage lexical system. In a situation like this the argument is considered clear in its meaning and explicit in its specification
2. The second [situation] is that in which the utterance has more than one meaning, equally connected with the utterance according to the common-usage lexical system, as in the case of a homonym. In this situation it is not possible to specify the intended meaning of the utterance on the basis of that rule, since no one meaning is closest to the utterance lexically so that the rule should be applied. The argument in this case is indeterminate.
3. The third [situation] is the case in which an utterance has more than one meaning in language, but one meaning is lexically nearer to the utterance than the others. An example is the word “sea”, which has as its literal meaning that which is near to hand, as in “sea of water”, and as its figurative meaning that which is remote, as in “sea of knowledge.” So if the giver of a command says “Go to the sea every day” and we want to know which of the two meanings the speaker intended by the word “sea,” we must study the passage in which the word “sea” occurs. We mean by “passage” all other indications that shed light on the utterance which we wish to understand, regardless of whether they be verbal, such as the words which form a single connected aggregate of speech with the utterance we want to understand, or circumstantial, such as the circumstances and concomitants which surround the speech and possess signification for the designated [utterance, as for instance “the sea”].
If we do not find in the other words which occur in the context anything that contradicts the prima-facie meaning of the word “sea” it is compulsory for us to explain the word “sea” on the basis of the lexical meaning closest to it in accordance with the principle which asserts the probativity of the prima-facie sense. But we sometimes find in other parts of the passage things that do not agree with the prima-facie sense of the word “sea.” An example is when the giver of a command says “Go to the sea every day and listen to its conversation with care.” For listening to the speech of the sea does not agree with the lexical meaning closest to the word “sea.” But, for the learned person who resembles the sea because of the abundance of his/her knowledge, it is appropriate. In this circumstance we find ourselves wondering what the speaker means by the word “sea.” Does s/he intend by it “the sea of knowledge,” using the argument that s/he has ordered us to listen to his/her conversation, or did s/he intend by it “a sea of water” and did not mean here by “conversation” the literal meaning of the word, but rather paying heed to the sound of the waves of the sea? In this way we hesitate between the word “sea” and its prima-facie lexical sense on the one hand, and the word “conversation” and its prima-facie lexical sense on the other. The meaning of this is that we hesitate between two images. One of them is the image of going to a surging sea and listening to the sound of its waves, which is the image which the word “sea” inspires. The other is the image of going to a learned person of abundant knowledge and listening to his/her speech, which is the image inspired by the word “conversation.”
In this case we must consider the passage as a whole and in its entirety, and see which of these two images is closer to the passage according to the general lexical system. In other words, this passage, when it is presented to the mind of a person who accurately experiences language and its system, will the first or second image rush to his/her mind? For if we know that one of the images is closer to the passage in accordance with the general lexical system - let us assume it is the second - then in the case of this second image, a prima-facie understanding is created for the passage as a whole. It is our duty to explain the passage on the basis of that prima-facie image.
The word “conversation” in this example is called the context because it is what signifies a perfect image for the passage, and invalidates the literal sense of the word “sea” and its prima-facie sense. If the two images were equally connected with the passage, this would mean that the speech had become indeterminate, without any prima-facie sense. This situation would mean that no scope remains for the application of the general principle [of the probativity of the prima facie].
The Connected and Independent Context
We have come to understand that the word “conversation” in the preceding example might be the context for that sequence of words as a whole. It is called a conjunctive context because it is conjoined with the word “sea,” which invalidates the literal meaning when [found] accompanying [the conjunctive context] in a single passage. The word which loses its literal meaning because of the context is called “contextualized.”
An example of a connected context is an exception from the general, as when the giver of a command says, “Respect every poor person except sinners.” The word “every” lexically has the prima-facie sense of generalization, but the word “sinners” is incompatible with this generalization. When we study the sequence of words as a whole we see that the image which this word “sinners” entails is closer to [the sense of] the passage than the image of generalization which the word “every” entails. In fact, there is no room for comparison between the two. For this reason the particle of exception [sc., the word “except”] is considered to be the context for the general meaning of the passage. So the conjunctive context is everything that is conjoined with another word and that invalidates the prima-facie sense [of that word] and directs the general meaning of the passage in a direction which is in harmony with itself.
Sometimes it happens that the context with this meaning does not appear connected to the speech in question, but disjunct from it. It is called a disjunctive context. An example is when the giver of a command says “Respect every poor person.” Then s/he says in another conversation a while later, “Do not respect the sinners among the poor.” This prohibitive [verb form], had it been conjoined with the first speech, would be considered a conjunct context; yet it was disjoined from it in this example. In this light we understand the meaning of the jurisprudential rule that says “The prima-facie sense of the context takes precedence over the prima-facie sense of what is contextualized by it, regardless of whether the context be conjunctive or disjunctive.”
Establishing the Source
In order that we act according to a certain speech in its quality as a divine-law argument one undoubtedly must establish that it emanates from an infallible person. There are several methods of doing so:
1. The first is from wide-scale transmission, which means that a large number of transmitters convey an account [about an infallible person] and each narrative from that large number constitutes [an element of weight] for the probability of the proposition, and a context for its establishment. By virtue of the accumulation of probabilities and contexts, certainty as to the emanation of the speech [from an infallible source] is achieved. The probativity of wide-scale transmission rests on the basis of its usefulness for [establishing legal] knowledge. Its probativity has no need for a divine-law promulgation or for it to be an act of human obedience [to God, seeking nearness to God].
2. Second is consensus and prevalence. The explanation of this is that when, for example, we observe the response of a single jurist on the mandatoriness of the application of the one-fifth tax on mines, we find that it constitutes a context insufficient to establish the existence of a prior verbal argument [derived from a prooftext] indicating the mandatoriness [of the mine tax], because we can conceive two possible explanations of the jurist's response. The jurist in his response may have relied on, say, a verbal argument in a sound manner, but on the other hand, he may have been simply mistaken in the response. As long as we conceive both these explanations as equally likely, this response is a context which establishes [an argument] only insufficiently. When we add to it the response of another jurist on the mandatoriness of the twenty percent mine tax, the probability of the existence of a verbal argument for the ruling becomes greater as a result of the conjunction of two insufficient contexts. When we add to the two jurists a third we become even more willing to believe in the existence of this verbal argument, and so on as the number of jurists in favor of the mandatoriness of the one-fifth tax on mines increases. When the jurists have agreed universally on this response, it is called consensus, but if they only constitute a majority, it is called prevalence. So, consensus and prevalence are two methods for the discovery of the existence of a verbal argument in a number of circumstances.
The ruling of consensus and prevalence from a jurisprudential point of view means that when knowledge of a divine-law argument has been achieved by means of consensus or prevalence, adoption of this knowledge is mandatory in the process of derivation. Consensus and prevalence in this way become evidence. When consensus and prevalence [have been invoked but] do not lead to knowledge, then no consideration should be paid to either, since at that point all they would lead to is supposition. From the standpoint of divine law there is no argument for the probativity of supposition. For the basic principle is that such supposition is not probative, because that is the basic principle concerning [all] supposition, as was discussed above.
3. The third is the common practice of the religiously observant. This is the general behavior of the religious in the age of the infallible persons, such as their agreement to perform midday prayer on Friday instead of the Friday prayer, or their agreement on the non-payment of the one-fifth canonical tax on an inheritance. If we divide this general behavior analytically into its separate instances, and consider each individual's behavior in isolation, we find that the behavior of any single religious individual in the age of legislation is considered a context insufficient to establish that a clear divine-law statement confirming that behavior was ever issued. At the same time we see that the behavior of that single individual may have resulted from error or negligence or even mere laxity.
If we know, for example, that two individuals in the age of legislation used to behave the same way and both prayed the midday prayer on Friday, the case for this behavior being correct is reinforced. The case continues to grow stronger as the number of examples increases until it reaches a high degree [of probability], at which point we know that that was general behavior which the great mass of pious people followed in the age of legislation, since it appears certain at this point that the behavior of all these individuals cannot have originated through error, negligence or laxity. For one or another person might fall into error, negligence or laxity, but it is not likely that this should happen to the great mass of the pious in the age of legislation.
In this way we know that the general behavior is based on a clear divine-law elucidation which indicates the possibility of performing the midday prayer on Friday, and that there is no obligation to pay the one-fifth canonical tax on an inheritance. [The principle of pious practice] leads in the great majority of cases to certainty about a divine-law elucidation when applied under certain conditions which there is no room to examine here in detail. When [pious practice] thus leads to certainty, it is evidence. When it does not yield certainty, then it is not worthy of any consideration, because there is no argument for its probativity under those circumstances.
These three methods are all based on the accumulation of probabilities and combination of contexts.
4. The fourth [method of authentication of traditions] is the single-source account reported by a single authority who is reliable. We use the term single-source account for any account that does not provide us with usable knowledge. The way to judge such a report is that if the informant is reliable it is adopted and it is evidence, otherwise not. Such probativity is established on the basis of the divine law and not on the basis of reason, because it does not rest on the basis of reaching assurance but on the basis of the command of the Lawgiver to follow the account of a reliable person. Numerous divine-law arguments point to this principle, and - God willing - an exposition of them will come in the next volume. Among these arguments is the verse in the Qur'an entitled “The Report” - “O you who believe, if a sinner come to you with a report, look into it carefully ...” (Al-Hujurdt 49: 6). This verse contains a conditional sentence which expressly indicates that the obligation to inquire closely is contingent upon the coming of a sinner with a report, but it also indicates implicitly that there would be no obligation to inquire closely in the case of the arrival of a report from a non-sinner. That [contingent non-inquiry], however, is only so because of the probativity [of the report of a non-sinner]. Thus one learns from this noble verse that the report of a [single] reliable and upright person is probative.
Another argument for the probativity of the report of such a person is that the practice of the religiously observant and of reasonable people generally is based on confidence in such a report. We discover from the uniformity of pious practice on this point and the firm reliance on it of the practice of the Imams' companions and the practice of the transmitters of traditions that the probativity [of the single-person account] has been transmitted to them from the Lawgiver. All this is in agreement with what has been previously said about pious practice and about how to draw inferences using it.
B. The Non-Verbal Divine-Law Argument
The non-verbal divine-law argument is everything that emanates from an infallible person which has significance for a divine-law ruling but is not of the category of speech. Included in this is the act of an infallible person, for if the infallible person performs an act it indicates his/her permission for such an act; but if s/he abstains from an act, it indicates that it is non-mandatory. If the infallible source performs an act as a sign of his/her being obedient to God Most High, that indicates the desirable character of the act. The emanation of these kinds of behavior from an infallible person is established by the same methods as previously discussed, by which the emanation of verbal divine-law arguments is established.
Also included in the non-verbal argument is the tacit consent of the infallible person. It consists of his/her silence concerning behavior in his/her presence, signifying endorsement. Otherwise it would have been incumbent on the infallible person to deter the actor from his action. Thus, non-deterrence reveals endorsement and consent.
The behavior is sometimes a personal behavior in a specific circumstance, as when a person performs ablution before the Imam and wipes him/herself in the reverse direction and the Imam remains silent about his/her action. Other times it is a generic human behavior such as the conduct of reasonable people. Such conduct consists of the general inclination among reasonable people toward a specific course of behavior without there being any positive role on the part of the Lawgiver in creating this inclination. Examples of this include the general inclination among reasonable people to adopt the prima-facie sense of the speaker or the single-person account or to consider possession as a cause for ascribing ownership of objects that belong to no one. The conduct of reasonable people in this sense differs from the conduct of those religiously observant people of which it has been previously said that it is one of the means to disclose the emanation of a divine-law argument. For the conduct of the pious in their quality as such will usually be the product of a statement of divine law. For this reason their conduct is held to reveal such statements of divine law the way an effect reveals its cause.
As for the conduct of reasonable people, it is attributable, as we have come to understand, to a general inclination which is found among the reasonable toward a specific form of behavior, and is not the result of divine-law statement but the result of other factors and influences which condition it accordingly, including the inclinations and modes of behavior of reasonable people. On this account the general inclination which is considered to be the conduct of reasonable people is not restricted to the sphere of the pious in particular, because religiosity has not been one of the factors that creates this inclination.
In this way it becomes clear that the conduct of reasonable people does not disclose a divine-law statement in the way that the effect reveals the cause, but discloses the divine-law ruling only by means of signification by tacit consent [of the infallible person], according to the following analysis: the inclination among the reasonable toward a specific course of behavior is considered to be a mental faculty impelling them toward practicing that behavior. If the divine law is silent concerning that inclination and an infallible person has not restrained [somebody from] such behavior, even though this infallible person lived at the time of that behavior, it becomes clear that that person was pleased with and endorsed that behavior in terms of the divine law. An example of that is the silence of the divine law concerning the general inclination among intelligent people toward adopting the prima-facie sense of the speech of a speaker, and non-deterrence by infallible persons from acting accordingly. For their non-deterrence indicates that the divine law confirms this way of understanding speech, and implies that the prima-facie meaning is to be considered evidence. Otherwise, the divine law would have forbidden our acquiescing in that general inclination, and would have deterred us from [taking the prima-facie sense] within the scope of the divine law. In this way we are able to infer the probativity of the prima-facie sense from the conduct of reasonable people, in addition to our inferring it previously on the basis of the behavior of the religiously observant contemporaries of the Prophet and the Imams.
Rational Arguments: the Study of Rational Connections
When reason studies the relations between things it arrives at a recognition of numerous types of such relations. For example, it comprehends the relation of (1) contrariety, or opposition between contraries, which exists, e.g., between blackness and whiteness. This relation means the impossibility of [both qualities] existing simultaneously in one body. [Reason] also comprehends the relation of (2) necessary consequence between that which causes and that which is caused. In the view of reason everything caused is necessarily subsequent to its cause and it is impossible to separate the caused from the cause; such is the case with heat in respect to fire. Reason further comprehends the relation of (3) antecedence and subsequence [or succession in existence], as for example, when you hold a key in your hand and you move your hand and subsequently the key moves because of that. In spite of the fact that the key in this example moves at the same instant in which your hand moves, reason comprehends the motion of the hand as being antecedent and the motion of the key as being subsequent, not from a temporal point of view but from the point of view of succession in existence. For this reason we say when we want to speak of this matter, “My hand moved then the key moved.” “Then” in this instance indicates that the motion of the key is subsequent to the motion of the hand in spite of the fact that the two occur at the same time. Thus in this case the subsequence does not have anything to do with time, but arises only from succession in existence [of things] from the point of view of reason. The meaning of this is that when reason notices the motion of the hand and the motion of the key, and comprehends that the latter springs from the former, it considers the motion of the key as subsequent to the motion of the hand in its character as arising from it, and represents this subsequence by the word “then.” Thus one says: “I moved my hand, and then the key moved.” The term applied to this subsequence is “subsequence in logical order.”
After reason has grasped such connections as these, it can use them to discover the presence or absence of something. Reason, by using the relation of contrariety between black and white, is able to establish the absence of black in a body when it knows that it is white, in view of the impossibility of blackness and whiteness coexisting in a single body. Similarly, by using the relation of necessary consequence between the caused and its cause, reason is able to establish the existence of the caused when it knows the existence of the cause, given the impossibility of separating the two. Likewise, by using the relation of antecedence and subsequence [succession in existence], reason can discover that the subsequent did not exist before the antecedent, because that would contradict its being subsequent. So if the motion of the key is subsequent to the motion of the hand in the sequence of existence, it would be impossible that the motion of the key, when the situation is thus, should exist in any form antecedent to the motion of the hand in the succession of existence.
Just as reason comprehends such relations as these between things and makes use of them to discover the presence or absence of something, similarly it comprehends the connections existing between [divine-law] rulings, and [reason] benefits from these connections in order to discover the existence or nonexistence of a ruling. For example, reason understands the contrariety between being mandatory and being prohibited the same way it understood the contrariety between black and white [in the former example]. Just as [reason] used the latter connection to reject blackness when the existence of whiteness was known, so it uses the connection of contrariety between mandatory and prohibited to reject the mandatoriness of an act known to be prohibited.
Thus we find things between which connections exist from the perspective of reason and we also find rulings between which connections exist from the perspective of reason. To the things we apply the name “the creational world.” To the rulings we apply the name “the legislative world.”
Just as reason can detect the existence or nonexistence of something in the creational world by means of these connections, so reason can detect the existence or nonexistence of a ruling in the legislative world by means of these connections. Accordingly, it is one of the duties of the discipline of jurisprudence to study such connections in the world of rulings in their quality as rational judgments qualified to be common elements in the process of derivation. In what follows, examples of such connections will be presented.
Subdivision of the Discussion
In the legislative world several categories of rational connections are found, namely those between:
1. one divine-law ruling and another;
2. a ruling and its subject;
3. a ruling and its dependent object;
4. a ruling and its necessary preliminaries;
5. different elements within a single ruling; and
6. a ruling and other external things in the purview of the creational world.
We will discuss examples of most
of these categories in what follows. Connections Arising Between One Ruling and Another
i. The Connection between Mandatory and Prohibited
In the discipline of jurisprudence it is recognized that it is quite possible for a legal agent to perform two acts at the same time, one mandatory and the other prohibited, and so be considered obedient to God and worthy of reward in performing the mandatory act, yet disobedient to God and worthy of punishment in performing the prohibited act. An example would be to drink impure water and pay the canonical alms to the poor at the same time.
One cannot possibly describe any single act as mandatory and prohibited at the same time, because the connection between mandatory and prohibited is a connection of contrariety. One can no more combine the mandatory and the permitted in a single act than combine black and white in a single object. Payment of the canonical alms to the poor, being mandatory, cannot be prohibited at the same time. The drinking of impure water, being prohibited, cannot be mandatory at the same time.
So clearly (1) two distinct acts, such as paying canonical alms and drinking impure water, can be described the one as mandatory, and the other as forbidden, even when the legal agent performs them both at the same moment, whereas (2) a single act cannot be described as both mandatory and prohibited. The crucial point in this discussion for the specialists in jurisprudence is that an act may be single in its essence and existence, and yet multiple in its description and legal categorization. In such a case, is it to be counted as one act due to its being single in essence and existence, or is it to be counted as two acts due to its description and legal categorization?
For example, a legal agent might perform ablution with water that has been misappropriated from its rightful owner. The action which the legal agent thus performs, if it were viewed from the point of view of the existence of the action, would be a single thing, but if viewed from the point of view of its attributes, it would be described by two different attributes. Therefore one may say of the action “It is ablution” and at the same time say “It is misappropriation, disposing of somebody else's property without permission,” and each of these descriptions is a [suitable] legal categorization. Therefore the action in question is to be accounted single in its essence and existence, but multiple when it comes to describing it and assigning it to a legal category.
On this point there are two opinions advocated by specialists in jurisprudence:
1. As long as an action remains multiple as regards description and legal categorization, it counts as two distinct acts. Just as one can describe the payment of the canonical alms to the poor as mandatory and the drinking of impure water as prohibited, so it is possible for one of the two descriptions/characterizations of the act to be “mandatory” (the legal category for ablution), while its other description is “prohibited” (the legal category for misappropriation). Those who take this view are said to advocate “the permissible conjunction of command and prohibition.” 2. The other opinion insists that the action be counted as a single act on the basis of its essential unity: mere differentiation of description and legal categorization according to this view does not warrant tying the mandatory and the prohibited together in one and the same action. This view is called “the impossibility of conjoining command and prohibition.”
In this way jurisprudential inquiry has been directed to the study of the plurality of description and categorization [of a single act]. Is the conjunction of mandatory and prohibited in the action of ablution with misappropriated water warranted? Or [are we to hold] that as long as an action remains single existentially and essentially, it cannot be described as being at once mandatory and prohibited?
It might be said that rulings, considered as things that arise in the inner mind of the Lawgiver, are connected with mental categories and images only, not with external reality direcdy. The plurality of categories and forms is sufficient to remove any difficulty, and the meaning of it is that the conjunction of command and prohibition is permissible.
It may [on the other hand] be said that rulings, although they are connected with mental categories and images, are nevertheless not connected with them by virtue of the rulings being mental images themselves, since it is clear that the Master does not will the image. Rulings are only connected with images insofar as images are expressive of external reality and mirror it. Since external reality is a unity, it is impossible that the mandatory and the prohibited be conjoined in it even through the mediation of two categories or two images.
On this basis it is said that if the multiplicity of categories is a result of the multiplicity in the external world and discloses the multiplicity of existence, then it is acceptable that command should be connected with one of two things and prohibition with the other thing; whereas, if there exists nothing but a multiplicity in the world of categories and images - which [world] is the mind - then that [conjunction of command and prohibition] is not acceptable.
ii. Does Prohibitedness Require Invalidation?
The meaning of validity of contract is that the effect upon which the two contractors agreed results from it. So in a contract of sale, the sale is considered valid and effective when the transfer of ownership of the goods from the seller to the buyer, and the transfer of possession of the purchase price from the buyer to the seller, result from the contract. The sale is considered void and invalid if those exchanges do not result from it.
It is self-evident that a contract cannot be valid and invalid at the same time, because validity and invalidity are two mutually exclusive contraries like the contrariety between mandatory and forbidden.
The question is whether it is possible that a contract be both valid and prohibited. We respond in the affirmative, since there is no contrariety between validity and being prohibited, and also no necessary connection between being prohibited and being invalid, because the meaning of declaring a [type of] contract prohibited is to restrain a legal agent from effecting such a sale, whereas the meaning of the contract being valid is that if a legal agent resists such restraint and prohibition and makes a sale, legal consequences result from his selling - the property passes from seller to buyer. There is no incompatibility between a legal agent's effecting a sale that is repugnant to the Lawgiver and prohibited to [the legal agent] and the fact that legal consequences ensue when it is initiated by the legal agent. Such a case is exactly like the case with the zihar form of divorce, which is forbidden according to the divine law, but were a zihar divorce to occur, the legal consequences would nevertheless proceed from it.
An example in everyday life is that you do not want so-and-so to visit you and dislike his doing so in the highest degree. But when the thing actually happens and the visit is made, you regard it a duty on your side that the [conventional] consequences follow from his visit -you undertake to be hospitable to the visitor.
So we recognize that the fact of a transaction, that is to say, a contract of sale or the like, being prohibited does not necessarily make it invalid but is compatible with a simultaneous ruling about the validity of the contract. We differ from a number of experts in jurisprudence who hold that the prohibitedness of a transaction demands its invalidation.
As prohibition is [rationally] connected with [the validity of] a contract or transaction, similarly it may be connected with acts of devotion like the prohibition of fasting on a feast day or the prohibition of prayer for menstruating women. This kind of prohibition, however, requires that the act of devotion be null and void, unlike prohibition in the case of a transaction. That is because an act of devotion does not come to pass validly except when a legal agent performs it seeking closeness to God. After its prohibitedness becomes apparent, one cannot seek closeness to God by means of it, because closeness to God by means of something repugnant and disobedient to Him is impossible. Thus [a prohibited act of devotion] is performed in vain.
Connections Arising Between a Ruling and Its Subject
Promulgation and Actuality
When the divine law ruled that the pilgrimage is mandatory for the capable and there came the saying of God Most High, “By God, pilgrimage to the House is [incumbent] upon mankind, anyone who can [manage] a way to it” [Al 'Imrdn III: 97], pilgrimage became one of the obligatory duties in Islam and its mandatoriness became a ruling established in the divine law. But if we suppose that at that time there was not a single capable person among the Muslims in whom the characteristics of “capability” were fulfilled according to the divine law, then the mandatoriness of the pilgrimage would not have applied to any individual among the Muslims because they were all not capable. The pilgrimage is an obligation only for the capable, which means that the mandatoriness of the pilgrimage is not established in this situation for any particular individual, in spite of its being a ruling established in the divine law. When one of the individuals becomes capable, the obligation is directed to him or her, and becomes established in respect to him/her.
In this light we observe that a ruling has two sorts of “being established” - one is the ruling being established in the divine law, and the other is it being established in respect to this or that individual. When, in the above cited noble verse, Islam ruled that pilgrimage is mandatory for the capable person, this ruling was established in the divine law even if no capable person whatsoever existed at the time, in the sense that if anybody had asked at that time what the rulings of the divine law are, we would have mentioned among them that pilgrimage is mandatory for the capable person, regardless of whether or not in fact there existed among the Muslims any capable person. But [in the other sense] after this or that person becomes capable, the mandatoriness becomes established in the individual case.
On this basis we realize that for the ruling [that pilgrimage by the capable is mandatory] to be established in the divine law and to be laid down as a divine-law ruling depends only on its having been legislated and promulgated by God Most High, no matter whether or not there is in fact adequate provision [for the act] among the Muslims.
As for the establishment of the mandatoriness of the pilgrimage for this or that legal agent, in addition to God's legislating and promulgation, it depends on the fulfillment of special conditions of capability in the legal agent. The first establishment of the ruling, namely its establishment in the divine law, is called promulgation, “the promulgation of the ruling.” The second establishment of the ruling, namely its establishment for this or that specific legal agent is called actuality, the actuality of the ruling or “that which has been promulgated.” The promulgation of a ruling means its enactment as law by God. The actuality of a ruling means its being established as a fact for this or that legal agent.
The Subject of a Ruling.
The subject of a ruling is a technical term in jurisprudence by which we mean all the things upon which the actuality of the promulgated ruling depends, in the sense of actuality which we have already explained. In the example of the mandatory nature of the pilgrimage, the existence of a capable legal agent is a subject of this [ruling of] mandatoriness, because the actuality of this mandatoriness is dependent upon the existence of a capable legal agent.
Another example: the divine law has ruled that fasting is mandatory for every legal agent who is not traveling and not ill when the new moon of the month of Ramadan appears. The first establishment of this ruling depends on its having been promulgated as divine law. Its second establishment, that is to say its actuality, depends on the existence of its subject, namely the existence of a legal agent not traveling and not ill when the new moon of Ramadan appears. Thus, a legal agent plus non-travel plus non-illness plus the appearance of the new moon of the month of Ramadan are the elements which constitute the complete subject of the ruling that fasting is mandatory. Once we understand the meaning of “the subject of the ruling,” we are able to appreciate that the [rational] connection between a ruling and its subject in some respects resembles the connection between an effect and its cause, as with heat and fire. Just as an effect is conditional on its cause, so a ruling is conditional on its subject, because it derives its actuality from the existence of the subject. This is the meaning of the jurisprudential maxim, “The actuality of a ruling is conditional on the actuality of its subject.” In other words, the existence of a ruling in actuality is conditional on the existence of its subject in actuality. By virtue of this connection between ruling and subject, a ruling is subsequent in logical order to its subject, just as an effect is subsequent in logical order to its cause.
In the discipline of jurisprudence there are propositions derived from this ruling-subject connection, which appropriately belong among the shared elements in the procedures of derivation.
One such proposition is that it is impossible for the subject of a ruling to be a matter caused by the ruling itself. An example of this is knowledge of the ruling. Knowledge of the ruling is caused by the ruling, since knowledge of something is a derivative of the thing known. It is therefore impossible for knowledge of a ruling to be the subject of the same ruling, as if the Lawgiver should say, “I rule by this ruling [about some matter which is incumbent] upon those who know that this ruling applies to them.” That would lead to a vicious circle.
Connections Between a Ruling and its Dependent Object
We have come to understand that a ruling about the mandatory nature of the fast, for example, has a subject composed of a number of elements upon which the actuality of the ruling of mandatoriness depends. The ruling of mandatoriness is not actual and applicable unless there exists a legal agent not traveling and not ill, the new moon of the month of Ramadan having appeared. As for the dependent object of this ruling of obligation, it is the action which the legal agent carries out as a result of the ruling of mandatoriness being addressed to him or her: in this example, fasting.
In this light we can distinguish between the dependent object of the ruling of mandatoriness and its subject, for the dependent object exists by reason of the ruling of mandatoriness. The legal agent fasts only because the ruling of mandatoriness of fasting is incumbent upon him or her, whereas the ruling itself exists by reason of its subject. The fasting actually happens only when there exists a legal agent not ill and not traveling and the new moon appears. So we find that the existence of the ruling is conditional on the [prior] existence of its subject, whereas it is a cause of bringing its dependent object into existence and directing the legal agent to it.
On this basis we understand that it is impossible for a ruling of mandatoriness to be a summons to bring into existence its own subject or an incentive toward it for the legal agent in the way that a ruling of mandatoriness summons [a legal agent] to bring the dependent object into existence. The ruling that fasting is mandatory for every legal agent who is not traveling cannot prescribe that the legal agent is not to travel. It prescribes only that one fast if not traveling. The ruling that the pilgrimage is mandatory for every capable person cannot prescribe to a legal agent that he or she must earn a good living so as to come to possess such capability; it only prescribes the pilgrimage for those already capable, because the ruling itself only comes into being after its subject exists. Prior to the existence of its subject, the ruling has no [actual] existence to make it be a summons to bring its own subject into existence. Accordingly, the principle is laid down in the discipline of jurisprudence that “No ruling can be an incentive toward any of the elements internal to the creation of its own subject. Rather, its influence and motivating power are confined to the sphere of its dependent object.”
Connections Arising Between a Ruling and its Necessary Preliminaries
The necessary preliminaries upon which the existence of a ruling of “mandatory” depends are of two kinds:
1. Necessary preliminaries upon which the existence of the dependent object depends, such as the travel upon which the performance of the pilgrimage depends, or the ablution upon which prayer depends, or armament upon which the struggle for Islam depends.
2. Necessary preliminaries which enter into the creation of the subject of the ruling of “mandatory,” such as the intention [of a traveler] to stay [at least ten days in one place], upon which the fast of the month of Ramadan depends, or the capability upon which the Islamic pilgrimage depends.
The distinction between these two kinds is that a necessary preliminary that enters into the creation of the subject of the ruling conditions the existence of the ruling of mandatoriness itself. This is so, as we explained earlier, because the existence of a divine-law ruling is conditional upon the existence of its subject. Thus the ruling is conditional upon every necessary preliminary intrinsic to the realization of its subject and cannot exist without it. This is in contrast to necessary preliminaries which do not enter into the creation of the subject and upon which only the existence of the dependent object is conditional. The ruling exists before such necessary preliminaries [need] exist, because they are not included in the subject of the ruling.
Let us explain this matter in terms of the examples of capability and ablution. Capability is a necessary preliminary upon which the Islamic pilgrimage is conditional, and earning the means is a necessary preliminary to this capability, and going to one's shop in the market is a preliminary to earning the means. Since capability enters into the creation of the subject of the ruling that pilgrimage is mandatory, accordingly there is no obligation for the pilgrimage before capability exists, and before those matters upon which capability is conditional exist.
As for ablution, it does not enter into the creation of the subject of the ruling that prayer is mandatory, because the obligation to pray does not anticipate that one will perform ablution in order to direct oneself to the mandatoriness of prayer. On the contrary, one will have already directed oneself to that. It is the dependent object of the obligation [sc. to pray] that is conditional on ablution. Ablution is conditional on preparing a sufficient quantity of water, and preparing a sufficient quantity of water is conditional, for example, on opening the storage tank.
There are, then, two series of necessary preliminaries:
1. The first is the series of necessary preliminaries of the dependent object such as the ablution upon which prayer is conditional, and the preparing of water, upon which ablution is conditional, and the opening of the storage tank upon which the preparing of the water is conditional.
2. The second is the series of necessary preliminaries for the obligation itself, such as the capability that is intrinsic to the creation of the subject of the obligation of the pilgrimage, and acquiring the means upon which the capability is dependent, and the going to one's place in the market upon which acquiring the means is conditional.
The position of the ruling of mandatoriness in respect of this second series and all the necessary preliminaries it contains is always negative, because the existence of the subject of the ruling depends upon these kinds of necessary preliminaries. We have previously recognized that a ruling of mandatoriness cannot be a summons to [create] its own subject. Every necessary preliminary of this kind is called a “preliminary of mandatoriness,” or “mandatoriness-related preliminary.”
As for the first series and the necessary preliminaries contained in it, the legal agent is responsible for bringing the necessary preliminaries to realization; that is, a person enjoined to prayer, for example, is responsible for performing ablution in order to pray. Similarly, a person enjoined to make the pilgrimage is responsible for traveling in order to perform the pilgrimage, and a person enjoined to struggle for Islam is responsible for arming himself or herself in order to struggle.
A point which specialists in jurisprudence have studied is the classification of this responsibility. They have offered two interpretations of it:
1. Some hold that what is legally mandatory upon the enjoined person is prayer and nothing more, excluding the necessary preliminaries of prayer like ablution and the necessary preliminaries to ablution. The person enjoined finds himself rationally [as opposed to legally] responsible for accomplishing ablution and the other preliminaries, because he sees that compliance with the divine-law ruling of mandatoriness is not attainable except by effecting those necessary preliminaries.
2. Others hold that ablution is legally mandatory because it is a preliminary to something [else which is indisputably legally] mandatory, that the preliminary of a mandatory thing is itself legally mandatory. So in a case like this there are two divine-law rulings of mandatoriness incumbent upon the legal agent, one being prayer, the other being ablution qua necessary preliminary to prayer. The first is called “mandatory per se,” being mandatory in its own right. The second is “mandatory per alienum,” being mandatory for the sake of something else, i.e., for the sake of something else to which it is a necessary preliminary, namely prayer.
The latter explanation has been adopted by a group of specialists in jurisprudence in their belief that there is a connection of necessary concomitance between a thing being mandatory and its necessary preliminaries being mandatory. Whenever [so they say] the Lawgiver makes a ruling about something being mandatory, a ruling is made immediately afterwards whereby its necessary preliminaries are mandatory.
One can object that the ruling of the Lawgiver about the manda-toriness of a necessary preliminary in such a case is otiose and unnecessary, because, if the Lawgiver wished by such a ruling to require the legal agent [to perform] the necessary preliminary, this is already achieved without any need for His ruling about its manda-toriness, since, after the act which is conditional upon the necessary preliminary has been made mandatory, reason comprehends the responsibility of the legal agent in this respect.
If the Lawgiver had some other end in view which moved Him to rule the necessary preliminary mandatory, we have no inkling of it. On that basis, the ruling of the Lawgiver about the mandatoriness of the necessary preliminary would be a nonsense and impossible to establish, let alone necessary to establish, as the proponent of a necessary consequence between [a ruling about] the mandatoriness of a thing and [a ruling about] the mandatoriness of its necessary preliminary would have it.
Connections Within A Single Ruling
Mandatoriness may be connected with one single thing, as with the mandatoriness of prostration for anyone who hears one of the verses of prostration. But mandatoriness may also be connected with a procedure which consists of parts and includes a variety of acts, as with the mandatoriness of prayer, for prayer is a procedure which is composed of parts and includes numerous acts, such as reciting and prostrating and bending and standing upright and uttering the profession of faith and the like. In such a case the procedure in its character as a composite of these parts is mandatory, and every part is mandatory also. The term “independent mandatoriness” is applied to the composite. The term “incorporated mandatoriness” is applied to every part of it, because the mandatoriness attaches to the part in its character as a part incorporated in the composite, not independendy of the rest of the parts. The mandatory nature of the part is not an independent ruling but a part of the mandatoriness which is connected with the composite procedure.
For this reason the mandatoriness of every part of prayer, for example, was linked to the mandatoriness of the other parts, because the incorporated mandatorinesses of the parts of the prayer together form a single independent obligation. As a result of that there arises a [rational] connection of concomitance within the framework of a single ruling among the incorporated mandatorinesses in it. The connection of concomitance means that one can neither divide these obligations into parts nor make any separation between them. On the contrary, if any one of them is omitted, omission of the remainder necessarily follows as a result of that [rational] connection of concomitance obtaining between them.
If, for example, ablution is mandatory for a person - and ablution is composed of numerous parts such as washing the face, washing the right hand, washing the left hand, wiping clean the head, and wiping clean the two feet - then an incorporated obligation attaches to each one of these parts in its character as a part of the obligatory ablution. In this case if it is impossible to wash the face because of some illness and on that account the incorporated obligation attaching to washing the face becomes void, it necessarily follows that the obligation of washing the other parts of the body becomes void as well. No obligation remains to wash the hands alone, as long as one has been unable to wash the face, because these obligations must be looked at as one obligation connected with the entire process, i.e., the ablution. Either the mandatoriness lapses in full or else it applies in full: there is no scope for splitting it into parts.
In this light we perceive the difference between (1) what [happens] when ablution is mandatory through one independent obligation and yet [there remains] the mandatoriness of private prayer through another independent obligation even though there is an impediment to ablution, and (2) what [happens] when ablution is mandatory but there is an impediment to part of it such as washing the face, for example.
In the first case the dispensation from ablution only leads to the lapse of the obligation that was connected with it [and affects nothing else]. In the case of the mandatoriness of private prayer, that obligation remains because it is an independent obligation not tied to the obligation of ablution.
In the second case, when one is dispensed from washing the face and the incorporated mandatoriness of doing so lapses, this [dispensation] leads to lapsing of the mandatoriness of ablution [altogether] and to the elimination of the rest of the incorporated obligations.
You may object: “We understand that a person is enjoined to pray the liturgical prayer and when he becomes mute and is unable to do the recitation in it, he is enjoined to pray without recitation. What is this, except separation between incorporated obligations, and a breech of the connection of concomitance between them?”
The answer is that the mandatoriness of prayer without recitation for a mute person is not a division into parts of the mandatoriness of the complete liturgical prayer. It is another obligation altogether with a different divine articulation [enjoining it], an obligation that was connected with silent prayer from the beginning. The mandatoriness of the complete liturgical prayer (with the corresponding articulation by God) has ceased to apply as a result of the dispensation from recitation. Another [ruling of] mandatoriness deriving from a different divine articulation has replaced it.
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Author: Ayatullah Muhammad Baqir as-Sadr
