3- Procedural Principles
Introduction
In [discussing] the first type [of divine-law argument] we have surveyed the commonly shared jurisprudential elements for derivation that have to do with substantiating arguments. We have studied the types and characteristics of substantiating arguments and distinguished between those in which there is evidence and the other sort.
We intend now to study the commonly shared elements in another situation that arises in derivation, that in which the jurist has failed to attain a substantiating argument which indicates a divine-law ruling, the ruling [proper] remaining unascertainable. In this situation, investigation turns toward an attempt to determine a practical position vis-a-vis that unascertainable ruling as a substitute for the discovery of the ruling itself.
An example of this is the situation of the jurist as regards smoking. At the outset, we suppose that smoking is probably forbidden by the divine law. We begin by directing ourselves to an attempt to obtain a substantiating argument which would specify the divine-law ruling to that effect. As we do not find such an argument, we wonder what the practical position is which we ought to adopt in the face of the unascertainable ruling. Is it necessary for us, first of all, to exercise precaution?
Such is the basic question which the jurist treats in this situation. He or she answers it in the light of certain procedural principles in their quality as commonly shared elements in the procedure of derivation. These principles are the topic of our study at present.
1. The Fundamental Procedural Principle [Precaution]
In order to appreciate the basic procedural principle in the light of which we answer the question of whether precaution is necessary in the face of the unknown ruling, we must recur to the starting point which obedience to the Lawgiver imposes on us. We must see whether this starting point imposes upon us precaution in the situation of doubt and lack of an argument for the prohibition [of smoking] or not. In order to recur to the starting point which obedience to the Master, praised be He, imposes on us, we must determine that starting point. What is the starting point that obedience to the Lawgiver imposes on us and that it is mandatory for us to consult concerning our position?
The answer is that this starting point is reason, because a human being understands through reason that God, praised be He, has a rightful claim to the obedience of His servants. On the basis of this rightful claim to obedience reason decrees that obedience to the Lawgiver is mandatory for the human being in order that he or she fulfill His rightful claim. We, then, obey God Most High and submit to divine-law rulings, because reason imposes that upon us, not because the Lawgiver ordered us to obey Him. Otherwise the question would be set for us yet again, why do we obey the order of the Lawgiver to us to obey the order of the Lawgiver? What is the starting point which imposes obedience to Him upon us? And so forth, until we reach reason's judgment that obedience is mandatory, a judgment resting upon the basis of that which reason grasps concerning God's right to claim obedience from humankind.
If reason is what imposes obedience to the Lawgiver on the basis of its grasp of His rightful claim to obedience, then it is mandatory to have recourse to reason in determining the answer to the question posed.
In this case we ought to study the rightful claim to obedience which reason grasps, and also the limits [of that claim]. Is the rightful claim of All-Praiseworthy God restricted to the realm of known injunctions alone, in the sense that All-Praiseworthy God has a rightful claim to obedience from man only in respect of those injunctions which man knows about? [If so,] a rightful claim to obedience would not extend to injunctions about which there is doubt and of which man possesses no knowledge.
Or is it rather the case that the rightful claim to obedience, as reason understands it in the sphere of known injunctions, is also understood by reason in the realm of possible injunctions, in the sense that it is part of the rightful claim of God on people that they obey Him in both known and possible injunctions? In that case, if a person knows of an injunction, then is it not part of God's rightful claim that s/he obey Him? - and if s/he conceives of an obligation as possible, is it not part of God's rightful claim that s/he exercise precaution, and thus renounce anything which may possibly be prohibited, and perform anything which may possibly be mandatory?
The correct view in our opinion is that the source of law in the case of every injunction that is possible [but not definitely known] is precaution, as a result of the inclusion of possible injunctions in the rightful claim to obedience. For reason understands that the Master has a rightful claim of obedience from human beings not in known injunctions alone, but in possible injunctions as well, as long as it has not been established by a [substantiating] argument that the Master is not concerned with a possible injunction to such a degree as to call for requiring the legal agent to exercise precaution.
This means that in a fundamental way whenever we consider prohibition or mandatoriness possible, the source of law is the exercise of precaution. Thus we omit what we consider to be possibly prohibited and perform what we consider to be possibly mandatory. We do not depart from this source of law except when it is established by [substantiating] argument that the Lawgiver is not concerned with a possible injunction to such a degree as to impose precaution and is, in fact, satisfied with the abandonment of precaution. At that point the legal agent ceases to be responsible for [complying with] the possible injunction.
Therefore precaution is mandatory according to reason on occasions of doubt. This mandatoriness is called the priority of precaution or the priority of engagement, i.e., the engagement of human responsibility with a possible injunction. We set aside this principle [only] when we know that the Lawgiver is satisfied with the abandonment of precaution.
Hence the priority of precaution is the basic procedural principle.
Many specialists in jurisprudence disagree with that point of view due to a belief that the default assumption about a legal agent should be that he or she is not responsible for injunctions about which there is [any] doubt [at all], even if their importance were supposed to be highly probable.
These leading figures believe that it is reason which rules for denying such responsibility, because it understands that it would be wrong for the Master to punish a legal agent for acting contrary to an injunction which has not been conveyed to him or her. For this reason the term applied to this source of law from their point of view is “The principle of the wrongness of punishment without clear [divine] statement” or “rational exemption,” which is to say that reason judges that for the Master to punish a legal agent for rejecting the obligation subject to doubt would be wrong. As long as the legal agent is immune from punishment, he or she is not responsible and precaution is not mandatory for him or her. In this connection, they offer as evidence the conduct of rational people, which presumes the non-condemnation by masters of persons under injunction in situations of doubt and the failure to establish a [divine-law] argument.
Such behavior indicates that in the opinion of rational people punishment is wrong without a clear statement [of the pertinent injunction].
To grasp whether reason does or does not judge in favor of the wrongness of God Most High punishing a legal agent for rejecting an injunction subject to doubt, it is necessary to know the limits of that rightful claim to obedience which belongs to God Most High. If this rightful claim includes injunctions subject to doubt that the legal agent supposes to be of great importance, then, as we have come to understand, God's punishment of the legal agent if he or she acts contrary to them is not wrong, because by rejection he or she falls short of observing the rightful claim of his/her Lord and Master and so deserves punishment. The evidence offered about the behavior of rational people has no bearing on the case, because it establishes only that a rightful claim to obedience to the customary sort of masters specifically applies to [undoubtedly] known obligations [alone]. This [line of reasoning] does not require that obedience to God Most High work that way as well. What is there, then, to prevent us from separating the two sorts of rightful claim and not making one of them necessarily broader than the other? [Why, nothing at all! We are indeed to assume that God has broader claims than human masters.]
The primary [procedural] principle, then, is the priority of precaution.
2. The Secondary Procedural Principle
The basic procedural principle has been inverted by a ruling of the Lawgiver into a secondary procedural principle, the priority of exemption which advocates the non-mandatoriness of precaution.
The cause of this inversion is that we know by way of a clear divine-law proclamation that the Lawgiver is not concerned with possible injunctions to the degree that precaution is required of the legal agent. Rather, He is satisfied with the abandonment of precaution.
The argument for this inversion is to be found in numerous divine-law prooftexts. One of the most famous of these is the prophetic prooftext [a hadith from Muhammad] “My religious community are relieved of that which they do not know.” [The priority of exemption] can even be inferred from some verses of the Qur'an, as when God Most High says “We do not punish until [after] We send a Messenger” (Bani Isra'ilXVU: 15). “Messenger” is understood to imply a clear statement and a [substantiating] argument. The verse shows that there is no punishment without an argument. In this way the [effective] procedural principle becomes that precaution is not mandatory rather than mandatory, taking the point of departure to be exemption based on divine law rather than engagement [i.e., precaution] based on reason.
This secondary procedural principle includes occasions of doubt concerning mandatoriness, and, equally, occasions of doubt concerning prohibition, because the prophetic text cited is absolute [and without any restriction to positive commands]. Doubt concerning mandatoriness is called “uncertainty concerning the mandatory” and doubt about prohibition is called “uncertainty concerning the prohibited.” The principle [of exemption] also covers doubt, whatever its cause. On this account we adhere to exemption when we are in doubt concerning an injunction, regardless of whether our doubt has arisen from an absence of clarity concerning whether the Lawgiver ever promulgated the injunction in the first place, or from absence of knowledge as to whether or not its subject has been realized. An example of the first is when we have become doubtful concerning the mandatoriness of the prayer for the Feast [i.e., the Feast of Sacrifice or the feast at the end of the Ramadan fast] or concerning the prohibitedness of smoking; this is called “uncertainty concerning the ruling.”
An example of the second case is when we have become uncertain concerning the mandatoriness of the pilgrimage because of lack of knowledge as to the sufficiency of ability [to perform it] even though we know that the Lawgiver promulgated the mandatoriness of pilgrimage for the capable person. [This is called “uncertainty concerning the subject of the ruling.”] If you wish, you may say that the legal agent in the case of “uncertainty concerning the ruling” doubts about [the original existence of] the promulgation, whereas in the case of doubt about the subject of a ruling he or she doubts about [the current existence of] what was promulgated. Each of these cases is an occasion to which exemption applies on the basis of divine law.
3. The Principle of the Inculpatoriness of Non-specific Knowledge
You may know that your elder brother has traveled to Mecca. You may be in doubt about his travel, but, nevertheless you know that one of your brothers, the elder or the younger, has in fact traveled to Mecca. And you may be in doubt about their traveling together, and not know whether one of them [in particular] traveled to Mecca or not.
Of these three cases, the first one is called detailed knowledge, because in the first case you know that your elder brother traveled to Mecca, and no hesitation or uncertainty faces you. Hence this kind of knowledge is detailed. To the second case the name non-specific knowledge is applied, because in this case you find two elements paired: the first is an element of clarity and the other is an element of hiddenness. The element of clarity is represented in your knowledge that one of your two brothers has in fact traveled, and you are in no doubt about this truth. The element of hiddenness and obscurity is represented in your doubt and your hesitation to specify which brother. Accordingly this is called a case of non-specific knowledge. It [actually] is [some sort of] knowledge, because you have no doubt concerning the travel of one of your brothers. Yet there is non-specificity and doubt, because you do not know which of your brothers has traveled.
Each of them, the journey of the elder brother and the journey of the younger brother, is called an alternative of the non-specific knowledge in question, because you know that one of the two - but there is no way to specify which - has actually traveled.
The best lexical pattern to represent the structure of non-specific knowledge - its mental containing of two [alternative] elements - is “either or,” since in the preceding example you would say “Either my elder brother or my younger brother traveled.” In this lexical pattern, the aspect of asserting the existence of something corresponds to the element of clarity and knowledge, while the aspect of hesitation which the word “either” conceptualizes corresponds to the element of hiddenness and doubt. Whenever it is possible to use a lexical pattern of this type the existence of non-specific knowledge in our minds is indicated.
The name “elementary” or “primary” or “simple doubt” is applied to the third case. It is pure doubt unmixed with any tinge of knowledge. It is called “elementary” or “primary” doubt to distinguish it from doubt as to which alternative of non-specific knowledge is true, because doubt concerning one alternative of non-specific knowledge exists as a result of the knowledge itself [and so is to be called secondary rather than primary]. Thus you are in doubt as to whether the traveler is your elder brother or younger brother as a result of your knowledge that one of the two without specification undoubtedly has traveled. Doubt in the third case exists in a primary way without any prior knowledge.
All three situations may exist in our minds vis-a-vis a divine-law ruling. (1) The obligation of the morning liturgical prayer is known in all its details. (2) The midday liturgical prayer on Friday is in doubt, a doubt which arises from the non-specific knowledge of the manda-toriness either of the midday liturgical prayer or of the Friday liturgical prayer on that day. (3) The mandatoriness of the liturgical prayer of the Major Feast is the subject of primary doubt not joined to any non-specific knowledge. These are all examples of uncertainty concerning a divine-law ruling.
It is possible to find the same kinds of examples for uncertainty concerning the subject of a ruling. (1) You may know on one occasion in exact detail about the dripping of a drop of blood into a certain vessel [which makes the contents of the vessel impure]. (2) On another occasion you may know in a non-specific way of its dripping into one of two vessels. (3) In a third case you may be in doubt in a primary way about the basic fact of any blood dripping at all.
In our discussion of the secondary procedural principle [exemption] which inverted the basic procedural principle [precaution] we were talking about the third situation, that is, the case of primary doubt not connected with non-specific knowledge.
Now we will study the situation of doubt arising from non-specific knowledge, that is, doubt in the second case of the three cases mentioned above. This means that we have [up to now] studied doubt in its simple form. We will now study it after we have added a new element to it, which is non-specific knowledge. Does the secondary procedural principle [of exemption] apply to it as it applied to cases of primary doubt or not?
The inculpatoriness of non-specific knowledge
In the light of what has preceded we are able to analyze non-specific knowledge into (1) knowledge about one or the other of two things, and (2) doubt concerning each thing taken separately. So on Friday we know the mandatoriness of one of two things, the liturgical midday prayer or the liturgical Friday prayer, and we have doubts about the mandatoriness of the midday liturgical prayer just as we doubt the mandatoriness of the Friday prayer. Knowledge of the mandatoriness of one of the two matters - in its quality as knowledge - is included in the principle of the probativity of assurance which we have studied above. On that account reason does not permit us to omit the two matters together - the midday and Friday liturgical prayers - because were we to abandon them both, we would go against our knowledge that one of the two is mandatory, and knowledge is evidence according to reason in all cases whether it be specific or non-specific.
The predominant jurisprudential view in respect to non-specific knowledge believes not only in the established nature of the proba-tivity of knowledge about one of two [alternative] things but also in the impossibility of removing this probativity from non-specific knowledge, and the impossibility of the Lawgiver's granting permission to reject such knowledge by abandoning both alike, just as it is impossible for the Lawgiver to remove from detailed knowledge its probativity and to give permission to reject detailed knowledge. All of this is in accordance with the preceding discussion of assurance and how it is impossible that deterrence from acting according to assurance should come from the Lawgiver.
As for each of the two alternatives of non-specific knowledge, that is, the mandatoriness of the liturgical prayer by itself and the manda-toriness of the Friday prayer by itself, it is an injunction subject to doubt and not known.
It might appear at first sight that the secondary procedural principle - that is, the priority of exemption - which rejects precaution in the case of doubtful injunctions, could apply, because each of the two alternatives is an injunction subject to doubt.
However, the predominant view in jurisprudence upholds the impossibility of the secondary procedural principle applying to an alternative of non-specific knowledge. The argument for this assertion is that application of exemption to both alternatives together would lead to exemption from responsibility for the midday liturgical prayer and the Friday liturgical prayer and [it would lead to] permission to abandon both of them alike. This latter conclusion is in opposition to the probativity of assurance concerning the mandatoriness of one of the two matters, because the probativity of assurance imposes on us that we perform one of the two at very least. Had the Lawgiver ruled for exemption from both of the alternatives, the meaning of that would be His granting permission to act contrary to one's knowledge, which, as shown previously, is impossible.
Moreover, applying the principle of exemption to one of the alternatives and not the other, although it would not lead to giving permission to abandon both matters together, nevertheless is also impossible, because we would then wonder which of the two alternatives to assume that the principle applies to and which to prefer over the other. We will come to know that we do not possess any justification for preferring either alternative over the other, because the relation of the principle to both is the same.
Thus there results from this line of inference the opinion that the secondary procedural principle of the priority of exemption does not apply to either one of the two alternatives. This means that each of the alternatives of non-specific knowledge continues to be included within the scope of the basic procedural principle which advocates precaution inasmuch as the secondary principle cannot apply [to such knowledge]. On this basis we understand the difference between primary doubt, and doubt deriving from non-specific knowledge. The former falls within the scope of the secondary principle, which is exemption, and the latter falls within the scope of the primary principle, which is the priority of precaution.
In light of that we recognize that what is mandatory for us according to reason on occasions of non-specific knowledge is the performance of both alternatives, that is to say, the midday liturgical prayer and the Friday prayer in the preceding example, because both of them fall within the scope of the priority of precaution. Jurisprudence gives the name “assured compliance” to the performance of both aspects together, because the legal agent on performing them together is assured that he or she has complied with the injunction of the Master, just as the name “assured non-compliance” is applied to the abandonment of the two aspects together. As for obeying one of the two and abandoning the other, the terms “possible compliance” and “possible non-compliance” are applied to the two [both to the obeying and to the abandoning] because the legal agent in this situation may possibly have complied with the Master's injunction, but also may possibly have gone against it.
The analytical resolution of non-specific knowledge
If you find two glasses of water one or both of which may be impure, but in any case you know that they are not both pure, there arises in your mind non-specific knowledge of the impure nature of one of the two glasses, no telling which. If later on it happens that you discover the impure nature of one of the two glasses and you know that one particular glass is impure, your non-specific knowledge will cease to exist because of this detailed knowledge, because now, after your discovery of the impure nature of that particular glass, you will not know in a non-specific way about the impure nature of one of the glasses, no telling which. Rather you will know in a detailed way about the impure nature of one glass but be in [primary or total] doubt about the impurity of the other. Therefore you cannot use the lexical pattern “either or” which expresses non-specific knowledge, and so you cannot say “Either this one is impure or that one is.” Rather, one is definitely unclean and you simply don't know about the other.
In jurisprudential usage this is expressed as “analytic resolution of non-specific knowledge into detailed knowledge of one of the alternatives and primary doubt concerning the other.” In this case the impurity of one particular glass has become known in detail, and the impurity of the other glass has become doubtful in a primary way after non-specific knowledge ceased. Detailed knowledge [about one glass] then has its [usual] consequences of probativity, while the primary doubt [about the other glass] is handled by taking exemption as the point of departure, exemption being the secondary procedural principle which applies on all occasions of primary doubt.
Occasions of hesitation
We have come to know that the secondary procedural principle of the priority of exemption decides about doubt when the doubt is primary.
But when doubt is combined with non-specific knowledge, the primary procedural principle [of precaution] decides.
Sometimes the kind of doubt may be concealed and one does not know whether it is primary doubt or doubt combined with nonspecific knowledge, or, to express it in another way, doubt deriving from non-specific knowledge. An example of this variety of doubt is the problem of the “alternation of a matter between the minimum and the maximum,” as it is called by the specialists in jurisprudence. It is the problem faced when mandatoriness according to the divine law is associated with a procedure composed of parts, like the liturgical prayer. We know that the procedure includes nine specific parts but we are in doubt about the inclusion in it of a tenth part, and no [substantiating] argument exists which would confirm or deny its inclusion. In this case the jurist tries to define the practical position and wonders whether precaution is mandatory for the legal agent. So does s/he perform nine parts and add to them this tenth, the inclusion of which may possibly be mandatory, in order to carry out what is mandatory according to any estimate [of its extent]? Or is performing the nine parts, the mandatoriness of which is known, sufficient, with the tenth part, the mandatoriness of which is not known, not being demanded?
Specialists in jurisprudence have two different answers to this question, each of which represents a certain orientation in interpreting the position. One of the two orientations advocates the mandatoriness of precaution in conformity with the primary procedural principle, because doubt concerning the tenth part is joined with non-specific knowledge. This non-specific knowledge is the knowledge by a legal agent that the Lawgiver has made some composite of parts mandatory but does not know whether it is a composite of nine or of ten parts, those known plus one extra.
The other orientation applies the secondary procedural principle [exemption] to the doubt concerning the mandatoriness of the tenth part by virtue of it being primary doubt not connected with nonspecific knowledge. They say this is so because that non-specific knowledge which the supporters of the first orientation assert to be present is analytically resolved into detailed knowledge, which is the knowledge by the legal agent that the nine parts are mandatory in any case, because they are mandatory regardless of whether they are accompanied by the tenth part or not. So this detailed knowledge leads to the analytical resolution of that non-specific knowledge. It is for this reason that we are not able to use the lexical pattern which expresses non-specific knowledge [i.e. “either or”]. So it is not possible to claim that we know “Either the nine parts are mandatory, or the ten.” Rather, we know the mandatoriness of the nine parts in any case, but we are in doubt about the mandatoriness of the tenth. Thus doubt concerning the tenth becomes primary doubt after analytical resolution of non-specific knowledge, and the principle of exemption is in effect.
The sound view is the [second] opinion which favors exemption for the parts not known, concerning the inclusion of which within the scope of what is mandatory there is doubt.
4. The Presumption of Continuity
In the light of the preceding we know that the principle of exemption is effective on occasions of primary uncertainty excluding uncertainty associated with non-specific knowledge.
There exists another source of law similar to exemption, and it is what the specialists in jurisprudence call the presumption of continuity. The meaning of the presumption of continuity is the ruling of the Lawgiver that the legal agent should maintain adherence in practice to anything about which he or she was formerly certain but then subsequendy has come to doubt that it persists. An example is when we are certain that water is intrinsically pure, but if then something which has become impure through contact with something intrinsically unclean strikes the water, we have doubt about the persistence of the purity of the water because we do not know whether or not the water would become impure by contact.
The presumption of continuity gives the legal agent its judgment in favor of maintaining adherence in practice to the same preceding condition of which he or she had certainty. In the preceding example, the preceding condition was the purity of the water. The meaning of maintaining adherence in practice to the preceding condition is to apply the effects of the preceding situation from a practical standpoint. So if the preceding situation was one of purity, we deal in our actions as if that purity continues. If the previous state was one of mandatoriness, we deal in our actions as if the mandatoriness continues, and so forth. The [substantiating] argument for the presumption of continuity is the statement of Imam Ja'far as-Sadiq which is related in the reliable account of Zurarah, “Certainty cannot be destroyed by doubt.”
We conclude from that statement that any case of primary doubt in which the certainty of something is at first available, and doubt about its persistence only comes in afterwards, the presumption of continuity applies and takes effect.
The previous condition of certainty
We have come to understand that a previous state of certainly is a basic condition for the presumption of continuity to have effect. The previous state may sometimes be (1) a general ruling concerning which we know that it was promulgated by the Lawgiver and was established in the legislative realm, but we do not know the boundaries of this ruling, imposed upon it at the time of its promulgation, and the range of the ruling's extent in the legislative realm. So our uncertainty is related to the ruling and the presumption of continuity applies to the ruling itself, as with the presumption of continuity of the persistence of the water's purity after being struck by something extrinsically impure. One speaks of “the presumption of continuity in respect of the ruling.”
Sometimes the previous condition may be (2) something from the physical world of things [hence subject to change and decay] about which we know its previous existence but we do not know of its persistence, and moreover it is the subject of a divine-law ruling. So the uncertainty is related to the subject. The presumption of continuity applies to the subject of the ruling. Examples of [this case] are (1) the presumption of the continuity of the rectitude of a leader of the liturgical prayer about the fresh occurrence of whose immorality there is doubt, and (2) the presumption of the continuity of the impure state of a garment about which there is doubt concerning the fresh occurrence of its cleaning. This is called “presumption of continuity concerning the subject of a divine-law ruling,” because the presumption of continuity pertains to the subject of the ruling. In the first case, [the presumption of continuity] yields permission to follow the prayer leader, and in the second, the impermissibility of the liturgical prayer [while wearing the impure garment].
In the world of jurisprudence there is an orientation that denies the effectiveness of the presumption of continuity concerning uncertainty related to the ruling and applies it exclusively to uncertainty related to the subject. There is no doubt that the presumption of continuity in the case of uncertainty related to the subject is established with certainty from the argument for it, because the reliable report of Zurarah in which the Imam Ja'far as-Sadiq granted the presumption of continuity involved an obscurity related to the subject of a ruling, namely doubt about the fresh occurrence of sleep which would vitiate previous ablution. But this fact does not prevent one from adhering to general application of the words of the Imam in his statement “Certainty cannot be destroyed by doubt” so as to establish the generality of the principle for all situations. It is up to one who claims that this principle is only for the case of doubt concerning the subject of a ruling to adduce a context in order to restrict this general application.
Doubt concerning persistence
Doubt concerning persistence is the other basic condition for application of the presumption of continuity. Specialists in jurisprudence subdivide doubt about persistence into two categories according to the nature of the previous situation about the persistence of which we have doubt. They do so because the previous situation may sometimes (1) be susceptible by its nature to extension in time, and we doubt about its persistence only as a result of the possible existence of some external factor which might have led to termination of the previous situation.
An example of that is the purity of water, because the purity of water continues by its nature and extends onward if no external factor interferes. We have doubts about its persistence only because of the entrance of an external factor into the situation, namely the striking of the water by something extrinsically impure. The same is the case with the impurity of a garment, because if the garment becomes impure, its impurity remains and extends onwards as long as a certain external factor does not exist, namely washing. This kind of doubt about the persistence of the previous situation is called “doubt concerning intervention.”
Sometimes (2) the previous situation may be incapable of extension in time. Rather, it comes to an end by its nature at a specific time and we have doubt about its persistence as a result of the possibility of its ending by its nature without the entry of any external factor into the situation. An example is the daytime of the month of Ramadan, in which fasting is mandatory when a fasting person has doubt about the persistence of daytime. For daytime comes to an end by its nature and it is not possible that it extend onwards in time. So doubt about its persistence is not produced by the possibility of the existence of an external factor. It is the result of the very possibility of the ending of daytime by its own nature and the using up of its capacity and ability to continue. Doubt of this type about the persistence of the preceding situation is called “doubt concerning original capability,” because the doubt concerns the extent of the capability of daytime and its tendency to continue. An orientation exists in jurisprudence which rejects the effectiveness of the presumption of continuity if the doubt about the continuity of the previous situation is of this variety of doubt concerning capability, and restricts it to situations of doubt concerning an intervention. The sound view is the non-restrictive understanding, adhering to the general application of the argument of the presumption of continuity.
Unity of the subject and the presumption of continuity
Specialists in jurisprudence are agreed that one of the conditions of the presumption of continuity is the unity of the subject. By that they mean that the doubt is directed toward the same situation that we formerly occupied in certainty. So the presumption of continuity does not apply if the thing doubted and the thing held in certainty are dissimilar. For example, if we were certain of the impurity of water and then it became steam and we are in doubt about the impurity of this steam, the presumption of continuity would not apply in this situation, because that which we were certain to be unclean was water, and the thing about which we presently have doubts is steam, and steam is not water, so the place from which doubt and certainty have issued is not one and the same.
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Author: Ayatullah Muhammad Baqir as-Sadr
