Alhassanain(p) Network for Heritage and Islamic Thought

Analytical Summary by the Translator

[All the original headers and subheaders are given, but the numbering of sections and division into four main parts is not in the printed Arabic book. Material that is more commentary than summary appears inside square brackets.]

1. Characterization of Jurisprudence

1. AN INTRODUCTORY WORD

Jurisprudence is the general study of how the jurist derives valid divine-law rulings. Such derivation is a practical necessity for every Muslim, and a discipline concerned with it became necessary as the passage of time made the sources of these rulings more and more obscure. To derive a ruling one must adduce an argument. This may be done either directly (if one of the sources of law unmistakably addresses the issue at hand) or indirectly. In the former case, we speak of a “substantiating argument” or simply “an argument;” in the latter case, of a “procedural argument.” (A “substantiating argument” is an argument which obtains a secure grasp of the relevant legal ruling.) The second type is called “procedural” with reference to the jurist's procedure after failing to find a substantiating argument. The discipline of jurisprudence is concerned with the general principles of deploying these arguments, with the elements common to the derivation of many particular valid rulings.

2. CHARACTERIZATION OF THE DISCIPLINE OF JURISPRUDENCE

The author gives three case studies of valid derivation of legal rulings and points out what they have in common, since that is what jurisprudence is concerned with. In all three the source of the ruling is a tradition, although the traditional accounts cited are of course quite different and transmitted by different transmitters. Common to all, though, is a concern with which transmitters are reliable. Similarly, all three cases involve understanding what common linguistic usage is. Jurisprudence not only points out what such common factors are, it discusses how probative each one is and how they relate one to another.

3 THE SUBJECT-MATTER OF JURISPRUDENCE

The specific subject-matter of jurisprudence consists of the arguments whereby valid legal rulings are derived.

4. JURISPRUDENCE IS “THE LOGIC OF LEGAL UNDERSTANDING”

Like logic, jurisprudence is about what all correct thinking has in common. However, logic applies to all thinking, whereas jurisprudence is specific to the derivation of legal rulings.

5. THE IMPORTANCE OF JURISPRUDENCE IN THE PROCEDURE OF DERIVATION

The author emphasizes the importance of this discipline for the practical jurist, the practitioner of legal understanding. Somebody who knows the sources of the law - notably Qur'an and tradition -thoroughly but cannot think about them systematically is not an adequate jurist. But neither is somebody who understands the method theoretically yet does not command the sources in detail.

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

The preceding section should not be taken to mean that a jurist who knows jurisprudence can mechanically look up pertinent passages in the sources of law and thus painlessly derive particular valid legal rulings. For example, ascertaining common linguistic usage was mentioned as a methodological concern. Such ascertainment is not a self-realizing process, it is something the legal practitioner must think about carefully in each case.

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

We have seen that jurisprudence and legal understanding depend upon one another. Such is the case historically as well. Originally there was no separate field of jurisprudence, but as more and more specific derivations of legal judgments were made by practical jurists, naturally a desire to seek out the common threads in the mass of legal materials grew, and once that tendency was underway it had an impact upon the thinking of the practical jurists. Meanwhile the age of divine legislation was becoming more remote for everybody, which meant that general methods became necessary to address cases which were not originally obscure but had become so by mere lapse of time. There is a Sunni-ShiT distinction to be made in this matter. Until 260/874, the Twelver Shi x a had authoritative Imams who could pronounce legal judgments by inspiration and therefore the problem of growing obscurity and the need for a general methodology was less urgent. Nevertheless, there are discussions in early ShfT books that point forward to the later discipline of jurisprudence.

8. THE PERMISSIBILITY OF THE PRACTICE OF DERIVATION

Fundamentally, everybody agrees that it is permissible to derive legal rulings. Some ShfT jurists, however, have seemed to say otherwise, because they rejected a certain older understanding of the word ijtihad, namely a specifically Sunni view that a jurist may “exercise ijtihad 1 '' in the sense of appealing to personal judgment as a distinct source of legal rulings. There is no difficulty if ijtihad is understood more generally to mean that the jurist must apply conscientious effort and the word thus describes the manner of his thinking and not a supposed source of it.

2. Substantiating Arguments

9. THE LEGAL RULING: DEFINITION AND SUBDIVISIONS

A divine-legal ruling is God's legislative act for the regulation of human life. The Qur'an and hadith indicate what this ruling is, but they are not the ruling itself. The early equation of legal rulings with the divine discourse itself was not accurate: a ruling is the purport of the discourse. Similarly, it was not accurate to restrict legal rulings to divine discourse “about legal agents.” The broader and proper criterion is that a legal ruling should be about regulating human life. Institutions like marriage and property are not directly about legal agents, but nevertheless divine discourse about them reveals legal rulings, since the institutions are aimed at regulating human life.

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

An injunctive ruling is one directly addressed to individual behavior, like the prohibition of wine. A declaratory ruling is one related more indirectly to individual behavior, as for instance a ruling about marriage from which the man's individual duty to support his wife arises. Every declaratory ruling, however, invokes an individual duty (and therefore an injunctive ruling).

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

1. mandatory

2. encouraged

3. prohibited

4. discouraged

5. permissible (neither encouraged nor discouraged).

Part Two - Topics Investigated by Jurisprudence

10. DIVISION OF THE DISCUSSION ACCORDING TO TYPES

The main division of types of derivations in the discipline of jurisprudence was mentioned at the outset. It is that between (a) derivations of a legal ruling that can invoke a substantiating argument, as opposed to (b) cases in which that better way is not possible and one must have recourse to a procedural principle. An example of the latter is a case where the legal ruling is derived by use of the priority of exemption, which says (approximately - details will be discussed below) that in cases of global doubtfulness about what the legal ruling ought to be, the procedural argument should be for a ruling of permissiblity. The author says “The difference between a procedural principle and a substantiating argument is that the principle does not firmly grasp the actual state of things but only defines a practical duty toward it.” [In this sentence “capture” ('ahraza) is etymologizing the word here rendered “substantiating.”]

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

One crucial factor is common to both types of legal-ruling derivation, namely the probativity of assurance on the part of the legal agent. Assurance, like knowledge, must count as evidence if there is to be any legal science.

There are two reasons why assurance must be taken to have evidential bearing on the derivation of the ruling. (1) Acting against orders in [mistaken] good faith is a valid defense against a charge of disobedience, and (2) acting in acknowledged bad faith merits punishment. These two situations are referred to as exculpatoriness and inculpatoriness respectively. [The second is very prominent in the discussion of so-called “non-specific knowledge” below]

The derivation of the ruling would not be “effective” if it disregarded the assurance of the legal agent. Indeed, we are told that “the jurist's act of derivation is of itself no evidence” and would also have no practical consequence unless the probativity of assurance is assumed. Not only is it a mistake to deny this view, but affirming it is fundamental to the whole field. Denying it virtually amounts to denying that any knowledge or any assurance can be probative. The scholar who is deriving a ruling about somebody else's legal situation under judgment is himself in a legal situation under judgment when doing so, and if his knowledge and assurance are legally irrelevant, then the whole discipline of jurisprudence simply could not exist, even if it did nothing but work directly from Qur'an and tradition and never ventured on more rationalistic arguments (such as those used in the procedural principles).

The author acknowledges in so many words that all this is an appeal to reason. We are told that God Himself could not refuse to exculpate somebody who in good faith thought he was complying with His commands. God could, if He chose, warn the legal agent that this assurance is in fact mistaken, but that is a different question altogether.

[Plainly, then, ignorance of the law might seem to count as an excuse in this system. Yet the author's words for “knowledge” and “assurance” {Him and qaf ) are very strong, so there is in effect a notion of invincible ignorance here. In any case, there is no intention to apologize for people who take no pains to find out what the law demands.]

12. TYPE I: SUBSTANTIATING ARGUMENTS

A substantiating argument arrives at assurance about the legal ruling, and therefore the jurist must rely on it whenever available. When such an argument is not available, the ruling is known only defectively. Nevertheless the Lawgiver has authorized the use of certain types of deficient argument as if they were assured, as for instance in the case of traditions related by a single, but reliable, source. When it is unclear whether the Lawgiver has authorized the use of a certain sort of deficient argument, the presumption is that He has not. The maxim has it that “[ordinary] conjecture is not probative, only extraordinary conjecture counts as assured argument,” the extraordinary kind being that specifically authorized by the Lawgiver.

12 a. Subdivision of the Discussion

A substantiating argument consists of two parts: (1) a prooftext, an actual basis in revelation (Qur'an and the speech or action of an infallible person, explicit or implicit), and (2) the reasoning process applied to it. The first is further divided into (a) verbal and (b) nonverbal argument. The principle that silence implies assent may apply in the non-verbal case.

The jurist has a threefold duty as regards the revealed basis: (a) to understand it correctly according to its prima-facie meaning, (b) to recognize that it is applicable and must be relied upon, and (c) to be sure that it comes from the Lawgiver. These three duties will now be discussed in that order.

1 3. DIVINE-LAW EVIDENCE

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

13ala. Introduction

The author proposes to begin with a general discussion of semantics.

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

When we hear a word, we think of the thing the word means. This motion of the mind from word to meaning is called signification. The word is a “signifier,” the thing is a “signified.” Signification is, loosely speaking, a cause-and-effect connection.

But how did this cause-and-effect connection originate? Some say the connection is intrinsic, but that must be wrong, because you have to learn a particular language for this word-to-meaning transition to happen. The cause-and-effect relationship was established by whoever invented a particular language: these people may be called “designators,” the verbal expressions, “the designated,” and the thing meant, “that for which the designated stands.”

But how did this designation process work? There never was any intrinsic connection between word and meaning, and the designator cannot have simply willed the connection into existence. The answer lies in the human habit of association. So prone are we to associate ideas, that sometimes a single conjunction makes two things come to mind almost simultaneously.

Some designations may have been onomatopoeic (like “ouch!”), but for the most part the designators were doing the same thing parents do when they name a child and more or less the same thing we all do when we make up a mnemonic for ourselves.

A crucial feature of designation (once established) is that it is spontaneous and unreflective. This has a bearing on when language is being used literally.

13alc. About “Use”

When one utters an expression in order to make someone think of the meaning with which designation has connected it, one is said to use it. There are three important components here, (1) the verbal expression (“what is used”), and (2) the meaning it is supposed to make a listener think of (“what it is used for”), and (3) one's deliberate intent that the listener should so think. There is also a word-meaning association happening in the speaker's mind, of course, but that is automatic and unconscious. The author discusses and rejects a theory that one single expression cannot be deliberately used in two distinct senses because of this unselfconsciousness on the speaker's part, which is conceived as involving a sort of “absorption” of meaning by the utterance.

13ald. “Literal” and “figurative”

An expression is used literally (“truly”) when it entirely agrees with the meaning established by designation. When it only partly agrees, when it is in some respects like the designated meaning but not identical with it, the use is said to be figurative. When an expression is used figuratively, there is usually something contextual in the utterance itself which makes this clear.

13ale. Figurative May Become Literal

Usually there is something in the context for this to happen, but sometimes figurative usages develop and no longer require such a clue each time. The author calls this sort of thing, our “dead metaphor,” “automatic designation” as opposed to the “specifying designation” of the original designator when the expression was first coined.

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

[Three parts of speech are distinguished in traditional Arabic grammar, nouns (including adjectives), verbs, and “particles,” i.e., everything else. Thinking mainly of prepositions and conjunctions, one may consider a particle is a relation-indicator. Literally translated, the terms used here are “nominal” and “particulate.” ]

Substantives (nouns) have meaning in themselves, relational words do not; on the other hand, substantives do not indicate relationships. The verb is twofold, materially a substantive, but formally a relation-word. Jurists [as opposed to grammarians] consider that there exist only substantive meanings and relational meanings, but say that a finite verb has both kinds together.

13alg. The Shape of the Sentence

The sentence as such has a relational meaning, specifying the connection between subject and predicate.

13alh. Complete and Incomplete Sentences

The author explains the difference between what we would call attributive phrases (“the learned scholar”) and sentences proper (“the scholar is learned”) in terms of the former being “integrating” and the latter “non-integrating.” A complete sentence must be of the second type.

13ali. The Lexical Signified and the Assentable Signified

Recall that “signified” and “signifier” relate more to ordinary communication, whereas “designation” is about the coinage of words. Designation creates the linguistic cause-and-effect link called signification. Signification happens automatically: a native speaker of a language cannot hear a sentence of it as only so much noise - the meaning springs to mind at once. However, this is purely a lexical affair, an association made inside the system of designations. Real-world or assentable signification requires that a human speaker intends for this assentable signification to happen in a listener's mind. The author cites talking in one's sleep and even “the result of the friction of two stones” as cases where the listener can find a conceptual significance in the sounds but there is no assentable signification present. [Parrots etc. would presumably be another example.] The difference is the element of “intention in use” mentioned above. There is also an element called “ intention to be serious” that is absent in jokes. When both elements of intention are present we have assentable signification. The speaker does not merely want us to understand his meaning, he wants us to agree with it. Obviously this sort of signification is extralinguistic.

13alj. Declarative and Performative Sentences

In addition to “intention in use” and “intention to be serious” there is another sort of inten-tionality, the sort that distinguishes a performative sentence [“I offer to sell you this book for a dollar”] from a declarative one [“I sold you this book for a dollar”], even if the two are formally identical, as is the case in Arabic for the verb “sell/sold.” The author is concerned to refute the view that such a sentence does not involve any additional element not discussed in the previous section. He clinches his argument by pointing out that performative sentences are usually recognized to be different from declarative ones in purely linguistic ways: we could tell which is which even with somebody talking in his sleep who doesn't at all intend anything he says.

13alk. The Significations That Jurisprudence Considers

The author distinguishes general and special significations, mentioning the imperative form of the verb as an instance of the former, and the concept “charity,” of the latter. Jurisprudence is only concerned with general significations, and detailed discussions of five such are provided.

1. The Imperative Verb. The great issue is whether an imperative is always absolutely mandatory or sometimes only advisory. There are jurists who insist on the first view, but the author disagrees. He acknowledges that absolute command is the paradigmatic case. Our out-of-context reaction to any imperative is to accept it as absolute command, but in context it can mean encouragement to do such-and-such as well as a rigorous demand. He expressly calls this a figurative usage in line with his definition above.

2. The Prohibitive Verb. We find exactly the same treatment here as between utter prohibition and mere discouragement.

3. Absolute Expression. Unrestricted (but not explicitly generalized) utterances are taken to be general. (The examples here contrast “Respect your neighbor” with the restricted “Respect your Muslim neighbor.”) It is presumed that “the wisdom of the speaker” has deliberately omitted to restrict the universality of the application of the expression.

4. Explicit Generality. Generality can also be explicitly marked with words like “every.” The author takes the view that the Arabic definite article with a plural noun is not an explicit marker of generality, but others have disagreed. [Everybody agrees that its use with a singular noun can be generalization. “Man is vile” would require “the man” in Arabic]

5. The Conditional. Conditional sentences with “when” or “if imply two different legal rulings. If an action is conditionally prohibited (or mandatory or whatever - cf. §9b above) when the condition obtains, then it is not prohibited (or whatever) when the condition does not obtain. The negative side of the matter, with the ruling reversed when the condition is not realized, is implicit, but this negative side is taken by the jurists to be present in every case. Yet that rule applies only to a spelled-out conditional sentence, not to an incidental epithet, to “Respect your neighbors if they are Muslims” but not to “Respect your Muslim neighbors.”

13a2. Probativity of the Prima Facie

A divine-law argument cannot concern itself only with lexical or conceptual signification. The jurist must discuss it in terms of assentable signification to make out what the Lawgiver intended.

At this point we invoke the assistance of “the prima facie” in two senses. (1) We rely upon the prima-facie sense of the revealed text, the sense that comes to mind at once. (2) We rely upon the prima-facie intention of the Lawgiver that the text should be so understood. The jurists agree that (2) affords an assured argument. This approach, “the priority of the prima facie,” does not mean that nothing is ever understood figuratively rather than literally, since we have seen that the figurative can become literal by commonly accepted usage.

When there seems to be a conflict between the two, the prima-facie sense presented by the Lawgiver in context outweighs considerations of what is most common in language generally. Nevertheless it is crucial that the jurist be aware of the latter.

The evidence that such is the proper procedure is twofold: (1) This is how the Companions of the Prophet and the Imams interpreted, as may be seen from studying the way they acted. (2) Those who are infallibly guided saw in their time that this was the procedure in use and they did not reject it. Therefore the “priority of the prima facie” constitutes assured argument.

13a2a. “Probativity of the Prima Facie” Applied To Verbal Evidence. The author considers three situations that may arise when attempting to find an argument based on the principle of the probativity of the prima facie:

1. The revealed utterance has only one possible meaning.

2. It has two or more equally likely possible meanings (whether due to homonymity or to figurative language).

3. It has two or more possible meanings, but one is in context clearly the most likely.

The first case is unproblematic and affords a substantiating argument directly. The second case is unresolvable - no argument can be discovered on this basis. [This does not mean that there is no answer, only that it cannot be based on (this sort of) argument. A second-best invocation of the “procedural principles” is necessary.]

In the third case, our author of course concludes that the obviously right meaning should be relied on and the alternative(s) ignored. But since there is a possible alternative, he treats this case more elaborately, in terms of:

13a2b. “Conjunct” and “Disjunct” Contexts

By a context he understands not a whole passage, but the specific clue in it that makes plain how to take a multivalent expression. Such a clue must exist given that one interpretation is clearly to be preferred. It may be either in the immediate vicinity of the multivalent expression (making it a conjunct context) or at a distance (if it is a disjunct context.) [In this book, the latter seems to mean that the contextual clue is in a different tradition from the one with the multivalent expression in it.]

The author's example is instructive: he assumes the multivalent expression is “Respect every poor person” with a context of “Respect every poor person except sinners.” Since the latter is more explicit and detailed, it must be preferred over the theoretically possible interpretation of respecting everybody poor without exception. [This sort of interpretive hesitation is not what we understand by “figurative,” - nor exactly our “multivalent” either, perhaps - but it is strictly in accord with the broader definition of the term so translated, just as an imperative used to mean encouragement rather than dictation was specifically called “figurative.” See §13ald. and § 13a 1 k. above.]

13a3. Establishing the Source

Jurisprudence is also concerned with general procedures for establishing that a given utterance does in fact come from an infallible person. [This discussion is all concerned with traditions.] Four methods are discussed.

1. Transmission on a wide scale. If a large number of transmitters agree about the attribution of the saying, ordinary rules of thinking make us accept the attribution. There is no need for this common-sensical procedure to be authorized by an infallible person as per §12 above.

2. Consensus and prevalence. If a uniform consensus or heavy preponderance of jurists have relied on an utterance as inspired and affording an argument, then it is safe to rely on it. But this consensus or prevalence must demonstrably exist, otherwise the jurist is relying on worthless supposition.

3. Common practice of the religiously observant. This is in effect the consensus of the whole community as opposed to that of the jurists. What all the pious have always done is the right thing to do. Ergo, the tradition that tells them to do so is sound. However, there are reservations and restrictions on this principle which the author does not spell out in so brief a survey.

4. A reliable single-person account. A tradition narrowly transmitted may be relied on if it comes from a person of good character. Relying on it is a deficient argument in the terms of section §12. The defect is made good by Qur'an 49: 6, “O you who believe, if a sinner comes to you with a report, look into it carefully....” The author argues a fortiori that the reports of non-sinners are to be cherished even more highly. The author stresses that this procedure relies on the Lawgiver's authority, not on reason or on the integrity of the transmitter in his own right.

14. NON-VERBAL ARGUMENT IN DIVINE LAW

Argument may be based on the non-verbal behavior of an infallible person. Actions performed by such a person must be regarded as “permissible” or “encouraged” (see §9b). Actions pointedly abstained from by such a person must be regarded as “prohibited.” These actions are established by the same rules about tradition we just discussed for verbal argument.

The maxim “silence implies consent” applies to such cases. The author distinguishes between specific tacit consent (when somebody is related to have done such-and-such in the presence of an infallible person without being rebuked) and generalities like the conduct of reasonable people. The “probativity of the prima facie” discussed already is yet another instance of such generalized tacit consent. This principle is different from the consensus of the religious community in item (3) of the previous section. That consensus rests ultimately on revelation, whereas the conduct of reasonable people comes about only from reason and not from piety.

The real authority appealed to in such a case is not reason as such, however, but an infallible person's tacit endorsement of what reason says.

15. RATIONAL ARGUMENTS

15a. The Study of Rational Connections

There are a number of connections between things that reason apprehends, as for example contrariety, cause-and-effect, and also “antecedence and subsequence” or hierarchical subordination. Such rational connections allow us to make valid inferences. They apply to divine-law rulings as well as to everything in the world of nature.

15b. Subdivision of the Discussion

Rational connections in the sphere of divine-law rulings exist between

1. one ruling and another ruling,

2. a ruling and its subject,

3. a ruling and its dependent object,

4. a ruling and its necessary preliminaries,

5. one internal part of a ruling and another, and

6. a ruling and the extralegal world.

The last item is described as referring to the logical consequences of the ruling, a topic to be postponed to a more advanced level.

15c. Rational Connections Between Different Rulings

15cl. The Polarity of Mandatory and Prohibited

One can perform two actions simultaneously, one mandatory and the other forbidden. That is no problem, because each part may be ruled on separately. It is logically impossible for one and the same act to be both mandatory and forbidden. However, the jurists hold that an act may be unitary in essence but at the same time be compound in respect of its legal categorization. An example of this would be performing mandatory ablutions with stolen water. The act is one, but the jurists must note that ablution is mandatory and misappropriation forbidden. There are two schools of thought on this point. (1) Some hold that the necessary difference in classification means that there are “really” two acts here, even though they cannot be separated. (2) Others insist upon the strict unity of the act. This difference is phrased in terms of holding “the (im)possibility of coexistence of obligation and prohibition.” Our author prefers the second view. He argues that one's primary concern must be with the intention of the Lawgiver and not with the physical details of an act. The resulting “coexistence of obligation and prohibition” exists in the Lawgiver's mind and does not imply any logical contradiction in the natural world or in human conceptualizations, which are always based on the natural world.

15c2. Does Prohibitedness Require Invalidation of a Contract?

The answer is no. “Mandatory” and “forbidden” are contraries of one another, and so are “valid” and “invalid,” but that does not make “forbidden” and “valid” contraries. “Forbidden” means that the Lawgiver does not want such a contract made, but nevertheless, once it is made, the ordinary legal consequences follow. This principle does not apply to acts of devotion, however, where the other party to the transaction is God Himself and the object of the act is to come closer to Him, which is impossible if one does what He forbids.

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

[The subject of a ruling is not its subject-matter in the sense of prayer or contracts or inheritance or some such rubric, but more like its “matter” in the Aristotelian sense, the concrete stuff the form of the ruling is instantiated in.]

15dl. Promulgation and Actuality

At the time God revealed that pilgrimage to the Ka c ba is “mandatory for anybodywho can find a means to do it” [Q. Ill: 97], perhaps there was in existence nobody who actually could find the means. A divine-law ruling about the pilgrimage being mandatory has two aspects, the original promulgation of a divine-law injunction in general and the actuality or applicability of that promulgated injunction to particular persons. The divine injunction itself exists independendy of whether it actually applies to anybody - its promulgation is one thing, and its actualization is quite another.

15d2. The Subject of a Ruling

The “subject of a ruling,” in legal terminology, is what is necessary for there to be an “actuality” of the “promulgation” of the ruling in the sense just explained. In the example, it would be the actual existence of Muslims capable of undertaking the pilgrimage.

The relationship between the subject of a ruling and the ruling proper is somewhat like a cause-and-effect relationship. The actuality of its subject causes the ruling to concretely take effect.

This relationship is of general importance in jurisprudence. For example, the jurists have a maxim that the subject of a ruling cannot be a consequence of the ruling itself, since the subject must precede the actualization of the ruling. Hence there cannot be a ruling which has knowledge of that ruling itself as part of its own subject, since knowledge of the ruling must come after the ruling itself, whereas the subject of it must come before.

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

The “dependent object” of a ruling is the human behavior which it requires. Whereas the subject of a ruling must come before it, its dependent object must come afterwards. The actualization of the ruling brings into existence an obligation which then stands in a quasi-causal relationship to the dependent object of the ruling. Since this whole process must take place in the order indicated, it would be nonsense for the dependent object of the ruling to involve bringing into existence the subject of the ruling. Thus in the pilgrimage example, what is mandatory is making the pilgrimage if one is capable, not becoming capable of doing so.

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

Two different sorts of “necessary preliminaries” are distinguished. (1) Those upon which the dependent object of a ruling depends (like the travel involved in making the pilgrimage), and (2) those upon which the subject of the ruling depends (like the wealth required to be capable of making the pilgrimage). In the latter case, the existence of any obligation depends on these necessary preliminaries, but not in the former case, since there the ruling has already come into effect.

Case (1) is illustrated in terms of the relationship between ablution and prayer. The obligation to pray has no direct connection with ablution, which is a necessary preliminary for actually praying, not for being obliged to.

We have already seen that in case (2) there can be no obligation to perform the necessary preliminaries, since obligation arises only after the subject of the ruling is actualized. However case (1) is quite different: prayer having been established as mandatory, the sine qua non preliminaries for it (like ablution) are also mandatory.

There is a technical disagreement among jurists about exactly how the obligation to perform the necessary preliminaries arises in case (1). Some say that the divine law proper makes only the dependent object itself (like prayer) obligatory and that it is reason which works out that the necessary preliminaries (like ablution) are therefore indispensable. Others hold that the divine law itself mandates both the dependent object of a ruling and its necessary preliminaries. Our author takes the first view, arguing that since reason can discover the secondary obligation, it is not necessary that the Lawgiver should expressly mandate it.

15g. Connections Within a Single Ruling

The obligation arising from a ruling (and its dependent object) may consist of a series of distinguishable acts and not just one; such is the case with prayer. If the whole series is mandatory, so are all the parts of it, but each part is said to involve “incorporated obligation” as opposed to the “independent obligation” of the whole series. Unless all the incorporated obligations are complied with, the independent obligation is not complied with. This maxim entails that if there exists a valid impediment to performance of any one of the incorporated obligations, the others need not be performed: the legal agent is dispensed from the independent obligation as a whole.

Two cases must be distinguished. If the independent obligation stands alone, it simply ceases to be obligatory because of the impediment and that is that. But what if the independent obligation was itself a necessary preliminary to the dependent object of some quite different obligation? (In the author's example, a skin disease would be a valid impediment to washing one's face as part of the series of acts constituting ablution, and one would be dispensed from the other parts of ablution also. But where does that leave one insofar as ablution is a necessary preliminary to prayer?)

Our author says that one is dispensed from the primary obligation as well. He considers the supposed parallel of a man becoming mute and therefore unable to perform the recitation which is an incorporated obligation of liturgical prayer and is therefore obliged to pray silently instead. The cases are not really parallel, however, because this silent prayer is not a part of the independent obligation of prayer, but an alternative to it specifically mandated by the Lawgiver.

3. Procedural Principles

16. INTRODUCTION

The exposition of the first type of derivation of a divine-law ruling, that based on substantiating arguments, has now been concluded. We turn to the second type, which bases itself upon procedural principles. This approach is resorted to only when no substantiating argument can be found and the proper ruling remains in doubt. Technically speaking, the procedural principles do not derive the ruling itself, they only tell us how to cope in practice.

Consider smoking. Our author presumes that it is forbidden, but he cannot adduce a substantiating argument for his opinion. After failing to find one, the first procedural question he raises is whether he needs to exercise precaution in this case. It is the role of the procedural principles to decide whether precaution is necessary.

[The author differs from others who reverse the order of the first two principles, beginning with “exemption” rather than with “precaution.” Furthermore, his third principle of “the inculpatoriness of non-specific knowledge” replaces a much simpler idea of “optional choice” (takhyir) found in other Twelver jurisprudence.]

17. THE BASIC PROCEDURAL PRINCIPLE

To understand about precaution, it is necessary to start from the very beginning and ask oneself what obedience to the divine law is grounded upon. The answer is reason, which perceives that God has a just claim to human obedience. It is reason that tells us in general to obey God, not God Himself. Mankind would have a general rational duty to try to obey God even if He had never specifically commanded anything. When an argument is not available to tell us with assurance what He has specifically commanded, we are in effect thrown back upon that duty as established by reason or natural religion. Accordingly, when substantiating derivation of a divine-law ruling is not possible, it is for reason to guide us. In fact, reason always guides us, since it of course tells us to obey what we know God has specifically commanded, but in the absence of such specific knowledge, reason suggests that we ought to take account of what God may possibly have commanded. The name of this rational account-taking is precaution.

The author says “In a fundamental way, whenever we consider prohibition or obligation possible, the source of law is the exercise of precaution.”

To be excused from the reason-imposed duty of precaution, we must adduce a divine-law argument that precaution may be dispensed with in the case at hand.

So says our author. Other jurists have argued, however, that where firm knowledge of the specific ruling is unavailable, there can ipso facto be no duty of obedience on the part of a legal agent. They appeal to our common-sense notion that it is wrong for a master to punish his slave for not doing what the latter was never explicitly ordered to do. The author rejects this line of argument, because mankind does not stand vis-a-vis God as ordinary slaves stand to ordinary masters.

18. THE SECONDARY PROCEDURAL PRINCIPLE

Having announced that precaution is fundamental, the author nevertheless says “The basic principle [sc. precaution] is inverted by the ruling of the Lawgiver into a secondary procedural principle - 'the priority of exemption' - which advocates the non-obligatoriness of precaution.”

To “invert” precaution into exemption requires (cf. §12) a substantiating divine-law argument, which is at once provided. The author refers to a tradition about Muhammad saying “My religious community are relieved of that which they do not know.”

The upshot is that “we adhere to exemption when we are in doubt,” whether in doubt about a ruling or the subject of a ruling.

19. THE INCULPATORINESS OF NON-SPECIFIC KNOWLEDGE

19a. Introduction

In addition to specific knowledge (the complete absence of doubt) and “doubt” in the sense of being entirely at a loss, there exists an intermediate condition of non-specific knowledge. For example, you may know for sure that at least one of your brothers is making the pilgrimage and yet not know which one of your brothers it is.

The proper linguistic formula for non-specific knowledge is “I know that EITHER OR ....” [This seems from the treatment as a whole to be always inclusive OR - either X or Y or possibly both, but definitely not neither.]

From the viewpoint of jurisprudence, specific or detailed knowledge means that a substantiating argument can derive a ruling, and sheer blank ignorance means that “the priority of exemption” applies. Invocation of the other procedural principles is reserved for cases of non-specific knowledge.

19b. Inculpatoriness of Non-Specific Knowledge

An example: how does one pray at noon on a Friday? With the ordinary prayers as on other days of the week [since the Imam is absent], or with the special Friday prayers? Undoubtedly one or the other is mandatory, but which one?

It would be an abuse to apply “the priority of exemption” to such a case and argue that since we are in doubt, we have no obligation to do either. Unaided human reason sees that that would be an abuse, a pretending not to know what we do in fact know. God does not permit us to act in a way so contrary to our own knowledge.

Since the secondary principle of exemption does not apply, the primary principle of precaution must. Precaution advises us to perform both the ordinary prayers and the special Friday prayer. When we thus go out of our way to make sure that we are meeting our known obligations, the jurists technically speak of our “assured compliance.”

19c. Resolution of Non-Specific Knowledge

We have seen that the linguistic formula for non-specific knowledge is “either X or Y [or maybe both].” When we gain more knowledge about such a situation, it is usually knowledge about X alone or Y alone, and the result of our additional knowledge runs something like “definitely X, but I haven't a clue about Y.” That is to say, one component moves up from non-specific knowledge to knowledge proper, but the other component moves downwards into complete doubtfulness. In terms of jurisprudence, X becomes a matter we now have a substantiating argument about, and Y becomes a matter which the “priority of exemption” legitimately applies to.

19d. Occasions of Hesitation

We can be in doubt about what kind of doubt we are in, unsure whether or not we have any non-specific knowledge. The problem can arise in conjunction with composite obligations, such as when we know that nine items are mandatory but are uncertain whether or not to include a tenth item. Juristically speaking, this means we do not know whether exemption or precaution applies. There are two schools of legal thought about how to proceed, one advising precaution and the other exemption. Our author favors exemption.

20. THE PRESUMPTION OF CONTINUITY

When we are uncertain about something at the moment but were sure about it at some time in the past, we are to presume that nothing has changed. The argument for this is the reliable tradition that Ja c far as-Sadiq [the sixth Imam of the Shi x a] said “Certainty cannot be destroyed by doubt.”

20a. The Previous Condition of Certainty

The previous state of affairs we were sure about (and are to presume continues) may be about the law or about the facts, i.e., either about a ruling or about the subject of a ruling {cf. §15d2. above). Some jurists hold, however, that the presumption of continuity applies only to fact, not to law. Our author challenges them to adduce a context {cf. §13a2b.) that requires the tradition cited in the previous section to be understood in so restricted a sense.

20b. Doubt Concerning Persistence

There are two different reasons why we may be unsure that a previously known state of affairs persists. Either it was a status quo that of itself naturally would persist (but we are not certain whether or not some external intervention has changed it), or else it was a status quo we knew would expire. An example of the latter is the daytime fasting in Ramadan, daytime being obviously not perpetual. Some jurists hold that the presumption of continuity does not apply to cases of the second type, but once again our author rejects restriction of the continuity presumption.

20c. Unity of the Subject and the Continuity Presumption

The continuity presumption does not apply to cases where there is doubt about whether the substance of a thing (as opposed to its accidents) persists.

4. Conflict of Arguments

21. THE CONFLICT OF ARGUMENTS

That concludes the discussion of the various methods of deriving a divine-legal ruling. It remains to be explained how one proceeds when different methods point towards different conclusions. There are three cases:

1. Two substantiating arguments clash.

2. Two procedural principles clash.

3. An argument clashes with a procedural principle.

21a. Conflict Between Substantiating Arguments

21al. Conflict of Verbal Substantiating Arguments

1. There cannot be two clear and assured prooftexts which point to different rulings of the five types in §9b, since the Lawgiver does not contradict Himself.

2. Yet a clear and assured prooftext may conflict with the prima -facie sense of another and a resolution is possible by taking the second in a figurative sense. This is illustrated by a case where a prohibition is understood to be intended as recommendation rather than absolute command because there is a plain prooftext calling the same act permissible. A general rule is formulated for cases of this sort according to which the statement of permission [ordinarily in the indicative mode], which does not contain this linguistic ambiguity between stronger and weaker interpretations, is to be preferred.

3. When the subject of the ruling in one prooftext is more specific than that in the other, the former is to be preferred. It is taken as a “context” (in the special sense discussed above) for understanding the more general one. We distinguish between [positive] specification and [negative] restriction, but both take precedence over another prooftext which is more generally expressed, whether or not some word like “all” is actually present. At the same time, the general formulation remains probative outside the range of the specification or restriction.

4. The subject of the prooftext for one ruling may be rendered impossible by the other text, as when “Pilgrimage is mandatory for the capable” encounters “A debtor is not a capable person” and we conclude that the debtor need not make the pilgrimage. In such a case, the second is said to “overrule” the first. In this case, as well as (2) and (3), the resolution is arrived at by “reconciliation based on common usage,” referring to common usage of language.

5. When neither prooftext is clear and assured, and neither can be treated as a context for the other, one may not use either, because there is no basis to prefer either. [We must presumably use the procedural principles to handle the case. As mentioned in §11, in no situation do we simply decide we cannot decide, although we may not actually “substantiate” the divine-law ruling.]

21a2. Other Situations of Conflict

An assured rational argument cannot conflict with a substantiating divine-legal one because of the infallibility of the Lawgiver. The author's most unambiguous state of “rationalism” runs: “Not only does dogmatic belief propound this truth, it is demonstrated by induction based on the divine-law texts 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.”

Verbal substantiating arguments are preferred over any other sort.

An assured rational argument is preferred over a merely presumptive one based on the prima-facie sense of a prooftext. The Lawgiver cannot be in conflict with reason, so He must have intended something other than the prima-facie sense of the unclear text.

When two non-verbal arguments clash, both cannot be assured. Sometimes it is possible to decide which one is assured.

21b. Conflict Between Procedural Principles

The main case here is the conflict when exemption and the presumption of continuity both seem to be applicable. The latter is dispositive and overrules exemption, because it eliminates the subject of any ruling that exemption is permissible by eliminating the element of ignorance or doubt demanded by the prooftext “My religious community are relieved of that which they do not know.” §18)

21c. Conflict Between the Two Types of Argument

Strictly speaking, a procedural principle can never conflict with a substantiating argument, because the latter has already attained to assurance, whereas use of the principles is warranted only where there exists some element of doubt or ignorance.

Nevertheless, there exist also deficient arguments (cf. §12) which fall short of being assured and are only presumptive. In the case of a single-source tradition (which is a deficient type of argument), are we to treat it as substantiating because the Lawgiver has vouched for it (“Certainty cannot be destroyed by doubt,” cf. §20) [even though reason does not make it seem anything better than presumptively true to us], or may we invoke the principle of exemption because “presumptive” of course means that we remain to some extent in doubt? We must do the former and treat the deficient argument as substantiating, relying on the Lawgiver's word rather than upon reason.