Alhassanain(p) Network for Heritage and Islamic Thought

4- The Conflict of Arguments

In what has preceded we have come to know that arguments are of two kinds: substantiating arguments and procedural principles. From here on the discussion will first turn to the conflict between two arguments of the substantiating sort, then to the conflict between two procedural principles, and thirdly to conflict between a substantiating argument and a procedural principle. So we will speak in what follows in sequence on the three points we have mentioned, God willing.

1. Conflict Between Substantiating Arguments

The meaning of a conflict between two substantiating arguments is the mutual incompatibility of the two things signified by them. There are several cases:

1. In the realm of the verbal divine-law argument, two statements issuing from an infallible person may [seem to] conflict.

2. A verbal divine-law argument may conflict with a rational argument.

3. Two rational arguments may conflict.

The case of conflict between two verbal arguments

In the case of conflict between two verbal [substantiating] arguments certain principles [for resolution] exist, a number of which we will review in what follows.

1. It is impossible that two statements from an infallible person should each reveal in an assured fashion a kind of ruling [sc., one of the five types of injunctive ruling] which disagrees with the ruling that the other statement discloses, since such a conflict between two clear statements would imply that the infallible person fell into self-contradiction, which is impossible.

2. One of the two statements issuing from an infallible person may be a clear and assured prooftext, while the other indicates by its prima-facie sense something which would be incompatible with the clear meaning of the former statement.

For example, the Lawgiver says in a tradition, “When fasting one may immerse oneself in water at the time of one's fast.” But in another tradition the Lawgiver says “Do not immerse yourself in water while you are fasting.” The first statement signifies clearly the permissibility of the fasting person immersing himself or herself. The second statement contains the prohibitive form of the verb, signifying by its prima-facie sense that the same thing is forbidden, because forbid-denness is the closest of meanings to the prohibitive form, although it can be used figuratively to signify discouragement. So a conflict arises between the first text being clearly for permissibility and the second text being prima-facie for prohibitedness, because permissibility and prohibitedness do not agree. In this situation it is mandatory to adopt the clear assured statement because it leads to knowledge of the divine-law ruling. We explain the second statement in light of the first and take the prohibitive form in it to imply no more than discouragement in order to harmonize it with the clear and assured text signifying permissibility. On this basis the jurist moves forward to derive a general principle, namely that one should adopt an argument for permissibility and dispensation when another argument for prohibitedness or mandatoriness based on the prohibitive or imperative verb form conflicts with it, because the linguistic form is not absolutely clear, whereas an argument for permissibility and dispensation is most often [absolutely clear].

3. The subject of a ruling which one of two [conflicting] statements indicates may be narrower in scope and more specific in application than the subject of the ruling which the other statement indicates. For example, it is said in one text “Interest is prohibited”, and it is said in another “Interest between father and son is permitted.” The prohibitedness that the first text indicates is the general subject [of a ruling for prohibitedness], because with its absolute phrasing it inhibits any usurious transaction with any person. The subject of the [ruling for] permissibility in the second text is specific because it permits interest specifically between father and son. In this case the second text takes precedence over the first, because it is considered in its character as the more specific about a subject than the first, as a context for the first. The argument is that if the speaker had combined the two statements and said “Interest is prohibited in dealing with anybody, but there is nothing wrong with it between father and son,” the specific would cancel the effect of the general and the prima-facie presumption of generality.

We have noted previously that a context, whether conjunctive or disjunctive, takes precedence over what it contextualizes.

Giving precedence to the specific over the general is called “specification of the general” when generality is established by one of the verbal markers of generalization, but “restriction of the general” when generality is established by absolute expression without any mention of restriction. In the first case the specific is called “the specifying,” and in the second case “the restricting.” On this basis the jurist follows a general principle in his derivation, namely that one adopts what is specifying or restricting and gives it precedence over what is [explicitly] general or expressed absolutely. Nevertheless, what is general or expressed absolutely is evidence about anything which has not been singled out by specification or restriction, since it is impermissible to abstain from using evidence except insofar as other evidence turns up which is stronger to the contrary, and no further.

4. One statement might be arguing that such-and-such a ruling is established given such-and-such a subject whereas the other rejects that in a specified case by rejecting that subject. For example, it is said in one statement “The pilgrimage is mandatory for a capable person,” but in another statement, “A debtor is not a capable person.” The first statement makes pilgrimage mandatory assuming a certain defined subject [of the ruling has come to exist], namely a capable person. The second denies the attribute “capable” to a debtor. One goes by the second statement, which is termed overruling, while the first statement is “overruled.”

The principles which require giving precedence to one argument over another mentioned in (2) and (3) and (4) above are called “common-usage principles of accommodation.”

5. When there is no clear, assured statement in either of the conflicting texts, nor anything that makes sense as a context to explain the other, whether as a specification or a restriction or an overruling, then one may not use either of the two conflicting arguments because both are on a par and there is no basis on which to prefer one to the other.

Other situations of conflict

Situations of conflict between a verbal argument and an argument of another kind or between two arguments which are not verbal arguments also have principles [of resolution] which we will indicate in the following sections.

1. An assured rational argument cannot conflict with an assured verbal argument, because if an argument of that sort were to conflict with a clear prooftext from an infallible person, that would lead to calling the infallible person untruthful or calling him mistaken -which is impossible.

Scholars of the divine law therefore say that there cannot be any conflict between clear divine-law prooftexts and assured arguments of reason. Not only does dogmatic belief propound this truth, it is demonstrated by induction based on the divine-law prooftexts and by study of the assured data of the Qur'an and the sunna, for they altogether agree with reason. There is nothing whatsoever in them that conflicts with the assured dictates of reason.

2. When there is a conflict between a verbal argument and another type of argument which is not assured, we give precedence to the verbal argument, because it is evidence. As for the non-verbal argument, it is not evidence, seeing that it does not lead to assurance.

3. When an unclear verbal argument conflicts with an assured rational argument, the rational argument is given precedence over the verbal, because the rational one leads to knowledge of the divine-law ruling. An unclear verbal argument only indicates a prima-facie sense, and, by a ruling of the Lawgiver, the prima-facie sense is evidence about a divine-law ruling only when we do not know anything to the contrary. In the case at hand, however, we know, in light of an assured rational argument, that the infallible person did not intend that a prima-facie meaning should be [drawn] from the verbal argument which would conflict with the argument of reason, so there is no freedom to adopt the prima-facie sense.

4. When two non-verbal arguments conflict, both of them cannot be assured, because that would lead to contradiction. Sometimes one of them is assured to the exclusion of the other, and then the assured argument is adopted.

2. Conflict Between [Procedural] Principles

The outstanding case of conflict between procedural principles is that which exists between exemption and the presumption of continuity. For example, we know that fasting is mandatory from the appearance of the dawn of daytime in the month of Ramadan until the setting of the sun, but we are in doubt about the persistence of the obligation after sunset until the disappearance of twilight. In this situation the key elements for the presumption of continuity - first, a previous state of certainty about the mandatoriness and, second, doubt about the persistence of that state - are present. By a ruling based on the presumption of continuity it would be determined that one is bound in practice to [assume] the persistence of the mandatoriness [of fasting].

Yet from another point of view we observe that the situation is included within the scope of exemption as a source of law, because there is primary doubt about an injunction - doubt not linked to nonspecific knowledge. Exemption as a source of law rejects the mandatoriness of precaution in practice and would relieve us of the mandatoriness [of fasting during twilight]. So which of the two sources of law do we adopt?

The answer is that we adopt the presumption of continuity and give it precedence over exemption as a source of law. This is agreed upon among the jurists. The predominant opinion among them in justification of this is that the argument from the presumption of continuity overrules the argument from the principle of exemption, because the argument for exemption is a prophetic text [a hadith from Muhammad] which says “What they do not know is removed [as an obligation],” the subject of which ruling is anything that is not known. [That is, whenever anything is not assuredly known, non-mandatoriness is the divine-law ruling established by this prooftext]

The argument for the presumption of continuity is the prooftext saying “Certainty is never destroyed by doubt.” By close examination of the two texts we observe that the argument based on the presumption of continuity does away with doubt and assumes that [the former state of] certainty continues as it was. Thus the subject of exemption as [the appropriate] source of law [namely something that is not known] is removed.

In the example of the mandatoriness of fasting, we cannot rely on the principle of exemption concerning the mandatoriness of the fast after sunset in its character as a doubtful obligation, because the presumption of continuity assumes that this mandatoriness is known, so the argument for the presumption of continuity overrules the argument for exemption, because it refutes [the supposed existence of doubt, which is] the subject of [a ruling for the applicability of] exemption.

3. Conflict Between the Two Types of Argument

We now come to the hypothetical possibility of a conflict between a substantiating argument and a procedural principle such as exemption or the presumption of continuity.

The truth is that when an argument is assured, conflict between it and the procedural principles is rationally inconceivable, because an assured argument for, say, mandatoriness leads to knowledge of the divine-law ruling. Given knowledge of the divine-law ruling, there is no scope for reliance on any procedural principle, because the procedural principles apply only in circumstances of doubt. After all, we have noted above that exemption as a source of law has as its subject anything that is not known and the presumption of continuity has as its subject our being in doubt concerning the persistence of something we used to be certain about. When an argument is assured, the subject of these sources of law or principles [sc., ignorance or doubt or uncertainty] is absent.

Hypothesizing even a hint of conflict between an argument and a procedural principle is possible only if the argument is not assured, as when the account of a single reliable person is taken as an argument for mandatoriness or prohibition. As mentioned above, the account of a single reliable person is a presumptive argument which the Lawgiver has ruled it mandatory to follow and to accept as an argument. But from another direction, there is the principle of exemption which broadens and permits [instead of mandating or prohibiting.]

Take, for example, the report of a single reliable source indicating the prohibitedness of immersion in water for the person fasting. Such prohibitedness, if we view it from the standpoint of the account, would be a divine-law ruling which the presumptive argument stands upon. But if we view [this prohibitedness] in its quality as an uncertainly known injunction, we would find that the argument [i.e., the prooftext] for exemption “That which is not known is removed” includes this case. Does the jurist in such circumstances define his position on the basis of the presumptive argument [being] respected [as assured], or on the basis of the procedural principle [of exemption] ?

Specialists in jurisprudence call the presumptive argument an indication, and the term “conflict between indications and procedural principles” is applied to the situation we have been discussing.

There is no doubt about this situation among the scholars of jurisprudence: precedence must be given to the account of the single reliable source and similar authorized arguments over the procedural principles of exemption and the like, because a presumptive argument for the probativity of which the Lawgiver has ruled, by that very ruling of the Lawgiver, fulfills the role of an assured argument. An assured argument denies [the existence of] the subject of the procedural principles [i.e., uncertainty] and leaves no scope for any procedural principle, as does a presumptive proof to which the Lawgiver has assigned the same role and which He has commanded us to accept as an argument. Hence it is frequently said that an indication overrules the procedural principles.