Alhassanain(p) Network for Heritage and Islamic Thought

A GLOSSARY OF SHIITE METHODOLOGY OF JURISPRUDENCE

(Uşūl al-Fiqh)

Alireza Hodaee

Al-Mustafa International Research Institute

www.alhassanain.org/english

A GLOSSARY OF SHIITE METHODOLOGY OF JURISPRUDENCE (Uşūl al-Fiqh)

Alireza Hodaee

Al-Mustafa International Research Institute

ISBN: 978-9-641959-47-2

© MIRI PRESS

This English edition first published in 2013

Opinions and views expressed in this book do not necessarily express those of the publishers. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of MIRI Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the foregoingshould be addressed to MIRI Press.

MIRI Press, Qum, Iran

Notice:

This workis published on behalf of www.alhassanain.org/english

Thetyping errorsaren’t corrected.

Table of Contents

PREFACE 11

Transliteration of Arabic Characters 12

A 13

• ‘Adam Şiĥĥat al-Salb (Incorrectness of Divesting) 14

• al-Amāra (Authorized Conjectural Proof) 15

• al-‘Āmm (General) 16

• al-Amr (Command) 17

• al-Aqall wa’l-Akthar al-Irtibāţiyyain (Relational Least and Most) 18

• al-Aqall wa’l-Akthar al-Istiqlāliyyain (Independing Least and Most) 19

• Aşāla al-Barā’a (Principle of Clearance) 20

• Aşāla al-Ĥaqīqa (Principle of Literalness) 21

• Aşāla al-Iĥtiyāţ or Ishtighāl (Principle of Precaution or Liability) 22

• Aşāla al-Istişĥāb (Principle of Continuity of the Previous State) 23

Constituents of Istişĥāb 23

• Aşāla al-Iţlāq (Principle of Absoluteness) 24

• Aşāla al-Takhyīr (Principle of Option) 25

• Aşāla al-‘Umūm (Principle of Generality) 26

• Aşāla al-Żuhūr (Principality of the Appearance) 27

B 28

• al-Barā’a al-‘Aqliyya (Intellectual Clearance) 29

• al-Barā’a al-Shar‘iyya (Religious Clearance) 30

• Binā’ al-‘Uqalā’ (Conduct of the Wise) 31

D 33

• Dalāla al-Iqtiđā’ (Denotation of Necessitation) 34

• Dalāla al-Ishāra (Denotation of Implicit Conveyance) 35

• al-Dalāla al-Siyāqiyya (Contextual Denotation) 36

• Dalāla al-Tanbīh (Denotation of Hint) 37

• Dalīl al-Insidād (Closure Proof) 38

• al-Dawām (Permanence) 40

• al-Đidd al-‘Āmm (General Opposite) 41

• al-Đidd al-Khāşş (Particular Opposite) 42

• al-Djam‘ al-‘Urfī (Customary Gathering) 43

F 44

• al-Fawr (Promptitude) 45

G 46

• Ghayr al-Mustaqillāt al-‘Aqliyya (Dependent Intellectual Proofs) 47

H 48

• Ĥadīth al-Raf‘ (Removal) 49

• al-Ĥaqīqa al-Mutasharri‘iyya (Muslims' Literal Meaning) 50

• al-Ĥaqīqa al-Shar‘iyya (Juristic-Literal Meaning) 51

• al-Ĥudjdja (Authoritative Proof) 52

• al-Ĥukm al-Wāqi‘ī (Actual Precept) 53

• al-Ĥukm al-Żāhirī (Apparent Precept) 54

• al-Ĥukūma (Sovereignty) 55

I 56

• al-‘Ibādī (Act of Worship) 57

• al-Idjmā‘ (Consensus) 58

• Idjtimā‘ al-Amr wa’l Nahy (Conjunction of the Command and the Prohibition) 60

• al-Idjzā’ (Replacement) 62

• al-‘Ilm al-Idjmālī (Summary-fashioned Knowledge) 63

• al-‘Ilm al-Tafşīlī (Detailed Knowledge) 64

• al-Inĥilāl al-Ĥaqīqī (Actual Reduction) 65

• al-Inĥilāl al-Ĥukmī (Quasi-Reduction) 66

• al-Istişĥāb al-Kullī (Continuity of the Previous State of the Universal) 67

• al-Iţlāq (Absoluteness) 68

• al-Iţlāq al-Badalī (Substitutional Absoluteness) 69

• Iţlāq al-Maqām (Absoluteness of the Position) 70

• al-Iţlāq al-Shumūlī (Inclusive Absoluteness) 71

K 72

• Kaff al-Nafs (Continence) 73

• al-Khabar al-Mutawātir (Massive Report) 74

• Khabar al-Wāĥid (Single Report) 75

• al-Khāşş (Particular) 76

• al-Kitāb (The Book) 77

M 78

• Mabāĥith al-Alfāż (Discussions of Terms) 79

• Mabāĥith al-Ĥudjdja (Discussions of the Authority) 80

• Mabāĥith al-Mulāzamāt al-‘Aqliyya (Discussions of Intellectual Implications) 81

• al-Mafhūm 82

• Mafhūm al-‘Adad (Number) 83

• Mafhūm al-Ghāya (Termination) 84

• Mafhūm al-Ĥaşr (Exclusivity) 85

• Mafhūm al-Laqab (Designation) 86

• al-Mafhūm al-Mukhālif / Mafhūm al-Mukhālafa (Disaccording Mafhūm) 87

• al-Mafhūm al-Muwāfiq / Mafhūm al-Muwāfaqa (Accordant Mafhūm) 88

• Mafhūm al-Sharţ (Condition) 89

• Mafhūm al-Waşf (Qualifier) 92

• al-Marra (Once) 94

• Mas’ala al-Đidd (Problem of the Opposite) 95

• al-Mudjmal (Ambiguous) 96

• al-Mukhālafa al-Qaţ‘iyya (Definite Opposition) 97

• al-Mukhaşşis (Restrictor) 98

• al-Mukhaşşis al-Munfaşil (Separate Restrictor) 99

• al-Mukhaşşis al-Muttaşil (Joint Restrictor) 100

• Muqaddimāt al-Ĥikma (Premises of Wisdom) 101

• Muqaddima al-Wādjib (Preliminary of the Mandatory Act) 102

• al-Muqayyad (Qualified) 104

• al-Muradjdjiĥāt (Preferrers) 105

• al-Mushtaqq (Derived) 106

• al-Mustaqillāt al-‘Aqliyya (Independent Intellectual Proofs) 108

• al-Muwāfaqa al-Qaţ‘iyya (Definite Obedience) 109

N 110

• al-Nahy (Prohibition) 111

• al-Naskh (Abolishment) 112

• al-Naşş (Explicit-Definite) 113

Q 114

• Qā‘ida Qubĥ ‘Iqāb bilā Bayān (Principle of Reprehensibility of Punishment without Depiction) 115

• Qā‘ida al-Yaqīn (Rule of Certainty) 116

• al-Qaţ‘ (Certitude, Knowledge) 117

• al-Qiyās (Juristic Analogy) 118

Definition of Qiyās 118

Shiite Position on Qiyās 118

S 120

• al-Şaĥīĥ wa’l A‘amm (Sound and What Incorporates Both) 121

• al-Shubha Ghair al-Maĥşūra (Large-Scale Dubiety) 122

• al-Shubha al-Ĥukmiyya (Dubiety concerning the Precept) 123

• al-Shubha al-Mafhūmiyya (Dubiety concerning the Concept) 124

• al-Shubha al- Maĥşūra (Small-Scale Dubiety) 125

• al-Shubha al-Mawđū‘iyya (Dubiety concerning the Object) 126

• al-Shubha al-Mişdāqiyya (Dubiety concerning the Instance) 127

• al-Shubha al-Taĥrīmiyya (Dubiety as to Unlawfulness) 128

• al-Shubha al-Wudjūbiyya (Dubiety as to Obligation) 129

• al-Shuhra (Celebrity) 130

• al-Sīra (Custom) 131

• Sīra al-Mutasharri‘a (Custom of People of the Religion) 132

• al-Sunna 133

T 134

• al-Ta‘ādul wa’l Tarādjīĥ (Equilibrium and Preferences) 135

• al-Ta‘āruđ (Contradiction) 136

• al-Tabādur (Preceding) 137

• Tadākhul al-Asbāb (Intervention of Causes) 138

• Tadākhul al-Musabbabāt (Intervention of the Caused) 140

• al-Takhaş şuş (Non-Inclusion) 141

• al-Takhşīş (Restriction) 142

• al-Taqrīr (Acknowledgment) 143

• al-Ţarīq (Path) 144

• al-Tazāĥum (Interference) 145

U 146

• al-‘Umūm al-Badalī (Substitutional Generality) 147

• al-‘Umūm al-Istighrāqī (Encompassing Generality) 148

• al-‘Umūm al-Madjmū‘ī (Total Generality) 149

• al-Uşūl al-‘Amaliyya (Practical Principles) 150

• Uşūl al-Fiqh 151

• al-Uşūl al-Lafżiyya (Literal Principles) 152

W 153

• al-Wađ‘ (Convention) 154

• al-Wađ‘ ‘Āmm wa’l Mawđū‘ lah ‘Āmm (Convention General and Object of Convention General) 155

• al-Wađ‘ ‘Āmm wa’l Mawđū‘ lah Khāşş (Convention General and Object of Convention Particular) 156

• al-Wađ Khāşş wa’l Mawđū‘ lah ‘Āmm (Convention Particular and Object of Convention General) 157

• al-Wađ‘ Khāşş wa’l Mawđū‘ lah Khāşş (Convention Particular and Object of Convention Particular) 158

• al-Wađ‘ al-Ta‘ayyunī (Convention by Determination) 159

• al-Wađ‘ al-Ta‘yīnī (Convention by Specification) 160

• al-Wađ‘ wa’l Mawđū‘ lah (Convention and Object of Convention) 161

• al-Wādjib al-‘Aynī (Individual Mandatory Act) 162

• al-Wādjib al-Kifā’ī (Collective Mandatory Act) 163

• al-Wādjib al-Mashrūţ (Conditional Mandatory Act) 164

• al-Wādjib al-Mu‘allaq (Suspended Mandatory Act) 165

• al-Wādjib al-Muđayyaq (Constricted Mandatory Act) 166

• al-Wādjib al-Munadjdjaz (Definite Mandatory Act) 167

• al-Wādjib al-Muţlaq (Absolute Mandatory Act) 168

• al-Wādjib al-Muwassa‘ (Extended Mandatory Act) 169

• al-Wādjib al-Ta‘abbudī (Religiously Mandatory Act) 170

• al-Wādjib al-Ta‘yīnī (Determinate Mandatory Act) 171

• al-Wādjib al-Takhyīrī (Optional Mandatory Act) 172

• al-Wādjib al-Tawaşşulī (Instrumental Mandatory Act) 173

• al-Wurūd (Entry) 174

Z 175

• al-Żāhir (Apparent) 176

• al-Żann al-Khāşş (Particular Conjecture) 177

• al-Żann al-Muţlaq (Absolute Conjecture) 178

Table of Technical Terms 179

1. English-Arabic 179

A 179

B 179

C 179

D 180

E 180

G 180

I 180

J 181

K 181

L 181

M 181

N 181

O 181

P 181

Q 182

R 182

S 182

T 182

U 182

W 182

2. Arabic-English 183

ا 183

ب 183

ت 184

ج 184

ح 184

خ 184

د 185

ر 185

س 185

ش 185

ص 186

ض 186

ط 186

ظ 186

ع 186

غ 186

ف 187

ق 187

ک 187

ل 187

م 187

ن 188

و 188

ی 189

Selected Bibliography 190

PREFACE

Uşūl al-Fiqh, the methodology of jurisprudence, which is usually - and inaccurately, if not incorrectly - translated “principles of jurisprudence,” is an Islamic science which is developed by Shiite scholars in two recent centuries into an unparalleled intellectual, logical system of thought and a comprehensive branch of knowledge which not only serves as the logic of jurisprudence but as an independent science dealing with some hermeneutical problems.

When the first English version of Shiite uşūl al-fiqh in its both comprehensive and concise version was introduced by the book “An Introduction to Islamic Methodology of Jurisprudence (Uşūl al-Fiqh), A Shiite Approach” (MIU Press, 2013), necessity of preparing a glossary of Shiite uşūl al-fiqh was strongly felt. That is why this valuable task was undertaken, and, as usual, itcould not be accomplished without full support of the dearest friend, Dr. Seyyed Mohsen Miri, head of Islam and West Research Center of al-Mustafa International Research Institute (M.I.R.I).

The present work, which is, like its precedent, the first, is arrangedon the basis of Arabic expressions, while presenting their English equivalents in parentheses. Secondary termsare referred to primary entries. “Al-” in Arabic terms is not considered. An index in the end of the book gives Arabic equivalents to English expressions used in this glossary. Since this work is a glossary, detailed discussion of each entryshould be pursued in Shiite books on uşūl al-fiqh.

The last words of every accomplished task must be “Praise belongs to God, the Lord of all Being (Qur., 10: 10).”

Alireza Hodaee

Tehran, July 2013

Transliteration of Arabic Characters

A

• ‘Adam Şiĥĥat al-Salb (Incorrectness of Divesting)

Usage of a term in its designated meaning is literally correct, in another meaning with which it has some pertinence along with some contextual evidence is figuratively correct, and in another meaning without any pertinence is wrong. Therefore, usage of a term literally and figuratively is correct and “the usage” cannot specify whether a termis designated for a meaning or it is used figuratively.

Now, should one know, through assertion of philologists, that a term is designated for a meaning it would be obviously clear that such word is to be used literally in that meaning and figuratively in other pertinentmeanings. However, the case is not that clear sometimes and one may wonder how to treat the usage. What can one do in that case in order to find out whether such a usage is literally correct or it isfiguratively so and hence one should use it with some contextual evidence?

Uşūlīs have mentioned some signs of recognition of the literal meaning the most important of which being preceding (al-tabādur [q.v.]) and incorrectness of divesting (‘adam şiĥĥat al-salb). By ‘adam şiĥĥat al-salb is meant that divesting a term of a meaning is not correct. To exercise this sign, let us consider the example of the term “lion.” We know that this termis used for a specific animal literally and for a brave man figuratively. Since you cannot divest “lion” of that animalwhile you can do that of a brave man, ‘adam şiĥĥat al-salb is a sign which indicates the literal meaning of the term lion.

•al-Amāra (Authorized Conjectural Proof)

Uşūlīs mostly use the term amāra (lit. sign) intending al-żann al-mu‘tabar (the valid conjecture, i.e., the conjecture which is considered and made an authoritative proof by the divine lawgiver) and this may cause confusion that those two terms have the same meaning, while they do not. That usage is in fact a figurative one and not making another meaning for the word amāra. The literal object of denotation of amāra is whatever considered and made valid by the divine lawgiver because of its causing conjecture, such as the single transmission, and appearances. Here, either the name of cause, i.e., amāra, is used for its caused, i.e., conjecture, or that of the caused is used for itscause as it is amāra that causes conjecture. Amāra is figuratively called valid or particular conjecture because it always or mostly causes conjecture typically for most people - and that is why it is called typical conjecture (al-żann al-naw‘ī). Since amārais made valid and authoritative proof by the divine lawgiver because of that, it will be an authoritative proof for all people even though it may not cause an actual conjecture for some of them. Hence, if an actual conjectureis not actualized by amāra for someone he should also follow it.

However, itshould be noted that in books of uşūl all such terms as “the particular conjecture,” “the valid conjecture,” “the authoritative conjecture,” and the like are used while their cause, i.e., amāra is intended. It should also be borne in mind that the best English equivalent to amāra is “the authorized conjectural proof.”

On the other hand, the term amāra does not include practical principle (→ al-aşl al-‘amalī), but rather is contrary to it; for the jurist can refer to practical principles where there is no authorized conjectural proof, i.e., where he finds no authoritative proof for the actual juristic precept. Amāra proves its object, but the practical principle does not. Practical principles do not indicate the actuality; they are references to which the duty-bound refers when he is in the state of perplexity and doubt with regard to the actuality - they are at most excusers for the duty-bound.

•al-‘Āmm (General)

General is among clear,self evident concepts which need no definition but lexical explanation for the sake of bringing the meaning closer to the mind. By general is meant a term whose concept covers whatsoever capable of being conformable to its designation in realization of the judgment. A judgment, too,is sometimes called general due to its covering all instances of the object, the object of burden, or duty-bound.

With regard to direction of a judgment to a general, generality is divided into three kinds: al-‘umūm al-istighrāqī (the encompassing generality), al-‘umūm al-madjmū‘ī (the total generality), and al-‘umūm al-badalī (the substitutional generality) [qq.v.].

•al-Amr (Command)

By al-amr (the command; Pl. al-awāmir) is meant wish (in the sense that one wants something to be done: al-ţalab) which, in turn, means to express will (al-irāda) and desire through speech, writing, pointing, or the like; whether by such terms as “I command you” or by an imperative. Thus, the sheer will and desire withoutbeing expressed in some way is not called wish. However, any wishis not called command, but a specific one, that is, wish of superior from inferior. Hence, superiority is considered in the command, whether the superior demonstrates his superiority or not, and whether he uses an imperative (or uses the verb “command”) or not - the only point is that he should somehow express his wish. On the other hand, wish of the one who is not superior, whether he is inferior or coequal, is not a command, even though he pretendssuperiority or uses an imperative.

As for the denotation of the command, it is a matter of dispute among Uşūlīs. There are a variety of opinions in this connection the most important of which being obligation (al-wudjūb), preference (al-istiĥbāb), and the common point between obligation and preference. The truth, however, is that the command is apparent in the obligation - not conventionally, but because of judgment of the intellect. It is intellect's judgment that when the Lord commands us we must obey Him and must be provoked in order to fulfill our duty as servants, unless He declares that His command is not a matter of must and we are free not to do it.

•al-Aqall wa’l-Akthar al-Irtibāţiyyain (Relational Least and Most)

This is a kind of doubt dealt with in the discussion of aşāla al-

iĥtiyāţ [q.v.].An example of this kind that one knows that performing prayers is mandatory but wonders whether sūra, i.e., recitation of one sūra after sūra al-ĥamd, is part of prayers (in the dubiety concerning obligation →al-shubha al-wudjūbiyya), or one knows that sculpturing an animating objects is unlawful but wonders whether sculpturing the whole body of such objects is so or making some parts is also unlawful (in the dubiety concerning unlawfulness →al-shubha al-taĥrīmiyya).

•al-Aqall wa’l-Akthar al-Istiqlāliyyain (Independing Least and Most)

This is a kind of doubt dealt with in the discussion of aşāla al-iĥtiyāţ [q.v.].An example of this kind is where one knows that one has not performed a number of one’s daily prayers but doubts the number of them and wonders whether they were six, for instance, or four (in the dubiety concerning obligation →al-shubha al-wudjūbiyya), or one knows that one ejaculated and knows that recitation of Qur’ānic sūras containing specific verses upon the recitation of which one must bow down is unlawful in such cases but wonders whether recitation of the whole sūra is unlawful or only that of the verse (in the dubiety concerning unlawfulness →al-shubha al-taĥrīmiyya).

•al-Aşl al-‘Amalī → al-Uşūl al-‘Amaliyya

• Aşāla al-Barā’a (Principle of Clearance)

Generally speaking, when it is doubted whether certain act is prohibited by the divine lawgiver and there exists no proof, two opinions are presented by Shī‘a scholars: non-obligation of precaution by eschewing the act, and obligation of precaution by eschewing the act; the former being called al-barā’a (meaning clearance from obligation) declared by Uşūlīs and the latter called al-iĥtiyāţ (meaning obligation of precaution→ aşāla al-iĥtiyāţ) declared by Akhbārīs. This principle is one of “practical principles”. [q.v.]

• Aşāla al-Ĥaqīqa (Principle of Literalness)

Aşāla al-ĥaqīqa is one of “literal principles” [q.v.] which is used when one doubts whether a certain speaker has intended the literal or the figurative meaning - where there is no contextual evidence while its existence is probable. In that case, it is said that “the principle is the literalness,” i.e., one should principally treat the term as being used in its literal and not figurative meaning, for to use a word figuratively needs contextual evidence which does not exist.

• Aşāla al-Iĥtiyāţ or Ishtighāl (Principle of Precaution or Liability)

Contrary to the principle of clearance (→aşāla al-barā’a) which was concerned with the case where one was doubtful whether or not one was charged with a burden, the principle of liability, which is one of “practical principles” [q.v.], deals with the case where one definitely knows that there exists some burden but wonders what one is charged with, i.e., the doubt is concerning al-mukallaf bi. The criterion for the doubt concerning “what one is charged with” is that the doubt is (a) over the very object of the duty, i.e., performing or eschewing which is wished either itself or its opposite, or (b) the object of object, i.e., an external affair as it is doubted - when, of course, one has already known that it is externally actualized.

In this case, precaution is intellectually obligatory, for the intellect judges that definite liability requires definite clearance, no matter the knowledge is detailed (→al-‘ilm al-tafşīlī) or summary-fashioned (→al-‘ilm al-idjmālī); and this is not, and cannot be, a matter of dispute.

• Aşāla al-Istişĥāb (Principle of Continuity of the Previous State)

When the duty-bound becomes certain of a precept or an object, then his precious certainty changes into uncertainty and he doubts subsistence of what he was certain of previously, he wonders what to do: should he act in accordance with what he was certain of, or should he not act so? The problem is that in both cases the duty-bound fears opposition of the actuality. However, there is a juristic principle in thisconnection which removes such perplexity: the principle of istişĥāb, which is one of “practical principles”.[q.v.] The Arabic term istişĥāb is derived from şuĥba meaning accompanying somebody or taking something with oneself. The expression, therefore, means to take what one has been previously certain of with one to the present time. That is why the best definition of istişĥāb is “to judge that what has previously been is subsistent.”

Constituents of Istişĥāb

In order for istişĥāb tobe called istişĥāb or to be covered by the coming proofs for its authority, the following pillars should exist:

1. Certainty. By thisis meant certainty of the previous state, whether it is a precept or an object having a precept.

2. Doubt. By thisis meant doubt over subsistence of the definite affair. Itshould be noted that the doubt includes both real doubt and invalid conjecture.

3. Conjunction of certainty and doubt, in the sense of simultaneous occurrence of certainty and doubt. This does not mean that origins of those two are simultaneous; for sometimes the origin of certainty is before that of doubt, such as where one is certain on Thursday that one’s cloth is religiously pure and on Friday doubts whether it is still pure or has become impure; sometimes the origin of certainty is after that of doubt, such as where one doubts on Friday whether one’s cloth is religiously pure and this doubt continues until Saturday when one becomes certain that one’s cloth has been pure on Thursday; and sometimes origins of those two occur simultaneously, such as where one becomes certain on Friday that one’s cloth has been religiously pure on Thursday and at the same time on Friday doubts whether that purity has been subsistent until Friday - all of these being subject to istişĥāb. This component differentiates istişĥāb from “the rule of certainty (→qā‘ida al-yaqīn).”

4. Unity of objects of certainty and doubt. Ignoring the time, this means that the doubt is over the very thing that has been the matter of certainty.

5. The time of the definite affair preceding that of the doubtful one. This means that the doubt must be over subsistence of what has already been existent in certain fashion. Should the time of the definite affair be subsequent to that of the doubtful one, which is called reverse istişĥāb (al-istişĥāb al-qahqarā), it would not be an authoritative practical principle.

• Aşāla al-Iţlāq (Principle of Absoluteness)

Aşāla al-iţlāq is one of “literal principles” [q.v.] which is used when a speaker has used an absolute term which has some states and conditions and one doubts whether its absolute meaning is intended by the speaker or he may have intended some of those states or conditions. In that case, it is said that “the principle is the absoluteness,” i.e., one should principally treat the term as being used in its absolute meaning not being limited to some states or conditions, for being limited needs contextual evidence which does not exist.

• Aşāla al-Takhyīr (Principle of Option)

This principle is one of “practical principles” [q.v.] which is used where the generic compulsion is known while it is not known whether that compulsion is obligation or unlawfulness. In such case, since the burden is compulsory in any case on the one hand and obligation and prohibition are opposite burdens the duty-bound being unable to observe both, the intellect judges that he has the option to choose either of them. However, whether that option is primary (al-takhyīr al-badwī, meaning that one is allowed to choose at the beginning either of those two probabilities but one must observe that choice constantly without any change in mind) or continues (al-takhyīr al-istimrārī, meaning that one is always allowed to choose either of those two probabilities) is a matter of dispute among Uşūlīs.

• Aşāla al-‘Umūm (Principle of Generality)

Aşāla al-‘umūm is one of “literal principles” [q.v.] which is used when a speaker has used a general term and one doubts whether it is still general or it has been restricted. In that case, it is said that “the principle is the generality,” i.e., one should principally treat the term as being used in its general meaning and not being restricted, for restriction needs contextual evidence which does not exist.

• Aşāla al-Żuhūr (Principality of the Appearance)

Aşāla al-żuhūr - to which all other literal principles refer - is one of “literal principles” [q.v.] which is used when a speaker has used a term and one doubts what the speaker has really meant. In that case, it is said that “the principle is the appearance,” i.e., one should principally treat the term as being used in its apparent meaning, even though the speaker may have intended another meaning by using it; for using a term in other than its apparent meaning needs contextual evidence which does not exist.

Here, there are two discussions:

1. Whether a specific term is apparent in a specific meaning. Dictionaries deal with this matter. On the other hand, mabāhith al-alfāż of the science of uşūl al-fiqh discuss appearances of some terms whose appearances are a matter of dispute, such as terms of commands and prohibitions, those of general and particular, and so on. In fact, these are some minor premises of the principality of appearance.

2. Whether a term whose appearance is recognized is an authoritative proof in its specific meaning from the divine lawgiver’s view so that both the divine lawgiver and duty-bounds can argue it. That is the major premise by adding its minor premises onewill be allowed to take appearances of Qur’ānic verses and ĥadīths into consideration and act on their basis.

The only proof for authority of the appearance is conduct of the wise (→ binā’ al-‘uqalā’), which consists of the following premises:

2.1. The practical conduct of the wise and their unanimity of opinion is doubtlessly established on that the speaker can content himself with the appearance of his words in communicating his ideas to others; the wise do not oblige the speaker to use only such words that are definite with regard to which no other meaning is probable. On the other hand, based on that practical conduct, they take appearances of words of every speaker into consideration for understanding his ideas whether or not his words are explicit-definite. That is why the appearance is an authoritative proof for both the speaker against the hearer if the latter predicates the former’s words upon something contrary to the appearance and the hearer against the speaker if the former claims that he has meant something contrary to the appearance.It is the legal procedure that the appearance of a judicial confession or acknowledgment should be taken into consideration even though the term may not be explicit-definite.

2.2. It is also indubitably clear that the holy lawgiver has not taken a way other than that of the wise in His communications. For the lawgiver is considered among the wise, and even their chief; therefore, He should have confirmed that conduct. This argument is sound, since there is no problem with the divine lawgiver having the same conduct and way on the one hand and no prohibition from Himis proved in this connection on the other.

Itis necessarily and definitely concluded from those two premises that the appearance is treated as an authoritative proof by the divine lawgiver: for Him against the duty-bound, and as an excuser for the duty-bound.

•al-Awāmir → al-Amr

B

•al-Barā’a al-‘Aqliyya (Intellectual Clearance)

If the clearance from obligation (→ aşāla al-barā’a) is not proved by religious proofs but by the intellectual principle of reprehensibility of punishment without depiction (→qā‘ida qubĥ ‘iqāb bilā bayān) it is called al-barā’a al-‘aqliyya.

•al-Barā’a al-Shar‘iyya (Religious Clearance)

If the clearance from obligation (→ aşāla al-barā’a) is proved by religious proofs, it is called al-barā’a al-shar‘iyya.

• Binā’ al-‘Uqalā’ (Conduct of the Wise)

The proof called “the conduct of the wise” consists of two premises:

1. The wise as they are the wise (i.e., human beings as they are intellectual beings and not as they are animate creatures with some emotions, desires, customs, and the like) have such a practical conduct. This reveals thatsuch a conduct is originated by the intellect and not other human faculties .

2. The divine lawgiver has not prohibited from following that conduct. This reveals that He has recognized that conduct; for He is among the wise, even chief of the wise and creator of the intellect, and therefore has no other judgment.

The conclusion is that the divine lawgiver has confirmed that conduct and has had no other way in this connection; otherwise, He would have announced and depicted His specificway ordering believers to follow it.

Itshould be noted , however, that the divine lawgiver’s agreement with the conduct of the wise could not be discovered merely through His prohibition not being proved, but rather there must exist some conditions so that one may deduce the divine lawgiver’s agreement with a conduct of the wise:

2.1. There should not be a problem with the divine lawgiver having the same conduct and way.Should the divine lawgiver having the same conduct and way be impossible, agreement of the divine lawgiver cannot be discovered from His prohibition not being proved - as is the case with referring to experts such as lexicographers, for need of the divine lawgiver to experts is nonsensical and makes no sense so that He may have a practical conduct in this connection.

2.2. Should the divine lawgiver having the same conduct and way be impossible, it must be proved that the practical conduct has been prevalent even as to religious affairs in the time of infallible-innocent personalities so that one can infer their acknowledgment from their silence and deduce that the divine lawgiver has been in agreement with the wise.This is the case with, for example, the principle of continuity of the previous state (aşāla al-istişĥāb [q.v.]) which is an authoritative proof in the case of doubt about the previous state; for, on the one hand, it is nonsensical that the divine lawgiver should doubt about persistence of His precept, and, on the other hand, the conduct of the wise as to consideration of the previous state has been prevalent in religious affairs. Now, since the conduct of the wise has been prevalent even in religious affairs and the divine lawgiver has not prohibited from that, we can deduce that He has confirmed the conduct in question.

2.3. Should the divine lawgiver having the same conduct and way be impossible while neither of the two previously mentioned conditions exists, there must be a specific, definite proof announcing agreement and confirmation of the divine lawgiver. Otherwise, agreement of the divine lawgiver with the conduct is merely a conjecture, and “Surely conjecture avails naught against truth.” (Qur., 10: 36)

In other words, in any custom of the wise, the divine lawgiver is either expected to be in agreement with the wise since there is no problem with that, as in the case of single report, or is not expected to be in such agreement because of existing problem, as in the case of the principle of continuity of the previous state (aşāla al-istişĥāb).

If the former, if itis proved that the divine lawgiver has prohibited from the conduct, that conduct is definitely not of authority, and if not, it is definitely discovered that He is in agreement with the wise. For He is among the wise, even chief of the wise and creator of the intellect; had He not confirmed that conduct having a specific way in this connection other than that of the wise, He would have announced and depicted that way prohibiting believers from following their own conduct.

If the latter, (2.3.2.1.) it is either known that the conduct of the wise as to its consideration has been prevalent in religious affairs, as is the case with istişĥāb, or (2.3.2.2.) that is not known, as is the case with referring to experts for meanings of words.

In (2.3.2.1.), the very lack of establishment of divine lawgiver’s prohibition from that custom is sufficient for discovering His agreement with the wise, for that is something He caresabout . Had He not confirmed that whilethat custom is observed by His vicegerent , He would have prohibited duty-bounds from following that custom and conveyed that prohibition to them in any way possible. Thus, the very lack of establishment of prohibition reveals His agreement, for it is obviously clear that an actualprohibition which is not conveyed to and has not reached duty-bounds cannot be regarded an actual, authoritative prohibition.

As for (2.3.2.2.), the very lack of establishment of divine lawgiver’s prohibition from that custom is not sufficient to reveal His agreement, for it is probable that He has prohibited the wise from that custom in religious affairs and they did not do so, or they may have arbitrarily not followed that custom in religious affairs and it is not upon the divine lawgiver to prohibit them from following that custom in irreligious affairs - had He not confirmed that in such affairs. That is why we are in need of a specific, definite proof in order totake such custom into consideration in religious affairs.

D

• Dalāla al-Iqtiđā’ (Denotation of Necessitation)

In this denotation (seealso: al-dalāla al-siyāqiyya), two criteria are taken into consideration: the denotation being conventionally meant by the speaker, and the truth or correctness of the speech being logically, juristically, lexically, or conventionally dependent upon the denotation. Numerous examplescan be found for such denotation two of which being as follows:

1. In the verse 82 of sūra 12 of the holy Quran, parts of words of Joseph's brothers to their father when they returned from their journey to Egyptare narrated in this way: “Question the city wherein we were,” and it is clear that the city cannot be questioned. Thus, the sentence can rationally be correct only if the word “people” is considered omitted in it, so that the sentence should be “Question people of the city… .”

2. There is a ĥadīth saying, “There are no prayers for the mosque's neighbor except in the mosque,” while we know that should such a person say his prayers in his home it will be juristically acceptable. Thus, the truth and correctness of the sentence is dependent upon the word “perfect”being omitted so that what is negated should be perfection of the prayers and not the prayers itself.

Generally speaking, all implicative denotations to single meanings and all figurative meanings refer to the denotation of necessitation.

As for the authority of this denotation, it would undoubtedly be an authoritative proof should there be a denotation and appearance, because of authority of appearances.

• Dalāla al-Ishāra (Denotation of Implicit Conveyance)

In this denotation (seealso: al-dalāla al-siyāqiyya and dalāla al-iqtiđā’) neither of the two following criteria are taken into consideration: the denotation being conventionally meant by the speaker, and the truth or correctness of the speech being logically, juristically, lexically, or conventionally dependent upon the denotation. What is denoted here is only an unclear implicature of the speech or an obvious implicature of the speech in the most general sense - no matter the object of denotation is understood from a single sentence or from a couple of sentences.

An instance of this is denotation of two Qur’ānic verses as to the minimum time of pregnancy: the verse 15 of the sūra 46 “And painfully she gave birth to him his bearing and his weaning being thirty months,” and the verse 233 of the sūra 2 “Mothers will suckle their children two complete years completely for such as desire to complete the suckling,” since to subtract two years, i.e., twenty four months, from thirty months is six and thereby it becomes clear that the minimum time for pregnancy is six months. It is also of this kind the question of obligation of something necessitating obligation of its preliminary, since it is an obvious implicature of the obligation of the thing in the most general sense. That is why they consider obligation of the preliminary of a mandatory act a secondary and not a primary one; for it is not a denotation of the speech by intention and is only understood secondarily, i.e., by the denotation of implicit conveyance.

As for the authority of this denotation, it cannot betreated as an authoritative proof because of authority of appearances, for there is no appearance where it is assumed that such thing is not intended - it is obviously clear that denotation is subject to the intention. Therefore, implicit conveyanceshould only be called adumbration and implicit conveyance without using the term denotation; hence, it is clear that such conveyance is not included in the appearances so that it can be an authoritative proof from that aspect. Of course, it would definitely be an authoritative proof should there be an intellectual implication through which its requisites, whether judgment or otherwise, could be discovered, such as taking requisites of one’s confession into consideration even though he claims that he has not intended them or he denies existence of any implication there.

•al-Dalāla al-Siyāqiyya (Contextual Denotation)

There are some denotations that are included neither in mafhūm [q.v.] nor in manţūq [q.v.], such as the case where the speech denotes implicatively a single word or a single meaning not mentioned in the manţūq, or it denotes contents of asentence which is an implicature of manţūq but not obviously in the most particular sense. Thoseare all called neither mafhūm nor manţūq.

To address those denotations in a general way, a good number of Uşūlīs have called them contextual denotation (al-dalāla al-siyāqiyya) meaning that the context of a speech denotes a single or compound meaning, or an omitted word. Such denotationsare divided into the three following varieties: denotation of necessitation (al-iqtiđā’), hint (al-tanbīh), and implicit conveyance (al-ishāra) [qq.v.].

• Dalāla al-Tanbīh (Denotation of Hint)

In this denotation (seealso: al-dalāla al-siyāqiyya), only one criterion, i.e., the denotation being conventionally meant by the speaker, is taken into consideration. Here, it is the context of the speech that causes certainty that a specific requisiteis meant or makes its non-consideration unlikely. This denotation has numerous instances the most important of whichbeing classified as follows:

1. The speaker whishes to depict something but expresses its logical or conventional requisite. For example, one addresses his friend saying, “It is ten o'clock” in order to remind him that the time they had agreed upon to go somewhere has come.

2. The speech is associated with someword which conveys that something is a cause, condition, impediment, or part of the judgment. To mention the judgment is thereby a hint that the thing mentioned is a cause, condition, impediment, part of the judgment or it is not so. For instance, if the jurist says, “Repeat your prayers,” where he is asked about the doubt concerning numbers of rak‘as of a two-rak‘a prayers , it is understood that the said doubt is a cause for annulment of the prayers and the obligation of repetition.

3. The speech is associated with someword which determines some objects of the act. For instance, when someone says, “I reached the river and drank,” it is understood that what was drunk was water and it was from the river.

As for the authority of this denotation, it would undoubtedly be an authoritative proof should there be a denotation and appearance, because of authority of appearances.

•al-Dalīl al-Faqāhatī → al-Ĥukm al-Żāhirī

•al-Dalīl al-Idjtihādī → al-Ĥukm al-Wāqi‘ī

• Dalīl al-Insidād (Closure Proof)

The proof known as “the Closure Proof” consists of four preliminaries. Should those preliminaries be accurate, intellect would judge that the duty-bound should acton the basis of any conjecture with regard to precepts - unless a conjecture whose non-authority is definitely proved, such as analogy (qiyās [q.v.]).

Those four preliminariescan be summarized as follows:

1. The door of knowledge and knowledge-rooted is closed in the most part of juristic precepts in our time when it is later than our holyImāms’ .This is the fundamental base of this proof upon which all other preliminaries are dependent.

2. It is not allowed to leave obedience of actualprecepts which are known to us in summary fashion, nor is it permissible to reject them in the position of action. To leave and reject actual precepts can be actualized in two ways: either to treat ourselves as animals and children who have no burden, or to refer to the principle of “clearance” (→ aşāla al-barā’a) and that of “non-existence of burden” wherever obligation or unlawfulness of something is unknown. Annulment of those two assumptions is self-evidently clear; therefore, we must take into consideration all actualprecepts which are known in summary fashion.

3. To consider such precepts necessitates clarifying one's obligation, which, in turn, is restricted to one of the following four states: (3.1) to follow the one who believes in the openness of the door of knowledge, (3.2) to act on the basis of “precaution” in every problem, (3.3) to refer to the respective practical principle (the principle of clearance, that of precaution, etc.) in every problem as the circumstances necessitate, and (3.4) to refer to the conjecture where there is one, and to the practical principles where there is none.

Since referring to the first three states is not acceptable, we shouldtake the fourth into consideration . The first is not acceptable, for how can one who believes in the closure of the door of knowledge refer to whom he considers wrong and ignorant in his believing in the openness of that door? The second is not plausible, for it necessitates intolerable hardship, or even disorder of the society if all duty-bounds are burdened with - which are both rejected in the Islamic law. And the third is not acceptable, for the existence of knowledge of mandatory and prohibited affairs in all doubtful problems in summary fashion prevents us from referring to the practical principles even though in some of them.

4. Thus, the only acceptable state is the fourth, i.e., referring to the conjecture. Although conjecture has two sides, i.e., the preferable (al-rādjiĥ) and the chimerical (al-mardjūĥ=al-mawhūm), one is merely allowed to refer to the preferable side; for preferring the chimerical side is intellectually reprehensible. Therefore, one is supposed totake the conjecture into consideration - unless a conjecture whose non-authority is definitely proved, such as analogy (qiyās). In case of definite knowledge of non-authority of a conjecture, one should refer to practical principles, precisely as one is supposed to refer to them in doubtful problems with regard to which no conjecture exists. There is no problem with referring to practical principles in such cases, for the knowledge in summary fashion is reduced to the detailed knowledge (al-‘ilm al-tafşīlī) of precepts proved by some authority and primary doubt (al-shak al-badwī) with regard to other cases, in which one is supposed to refer to practical principles [qq.v.].

•al-Dalīl al-Lafżī → al-Idjmā‘

•al-Dalīl al-Lubbī → al-Idjmā‘

•al-Dawām (Permanence)

Like the dispute over the command, there is a dispute among Uşūlīs whether prohibition indicates once or repetition by the prohibition. The justifiable opinion is the same with the case of command; hence, the prohibition denotes neither repetition nor once - whatis prohibited is the sheer nature of the act. However, there is a rational difference between those two in the position of obedience, for the prohibition is obeyed by eschewing the actualization of the nature of the act and that would be realized only when all instances of the act are left, since if the duty-bound do the act even once he will not be considered an obedient servant. On the other hand, obedience to the commandwill be actualized by bringing about the first existence of instances of the nature of the act; the nature of obedience is not dependent upon more than doing the commanded act once. That difference is not due to the convention and denotation of those two, but rather is the rational necessity of the nature of prohibition and command.

• Dawarān bain al-Aqall wa’l-Akthar→ al-Shubha al-Mafhūmiyya

• Dawarān bain al-Mutabāyinayn → al-Shubha al-Mafhūmiyya

•al-Đidd al-‘Āmm (General Opposite)

The dispute over the general opposite (i.e., eschewal and not doing which is non-existential → mas’ala al-đidd) is not over the necessity in principle, for Uşūlīs apparently agree about the necessity; they disagree only on its nature. They have declared various opinions in this connection. Some have said that the necessity is the sameness, i.e., to command something is the same with prohibitingits opposite. Some have said that since the command is composed of wish of something and prohibition of its eschewal, the prohibition of eschewal is analytical part of meaning of obligation. Some have said that there exists an obvious necessitation in the most particular sense; hence, the denotation is literal, but implicative. Others have said that there exists an obvious necessitation in the most general sense or an unclear necessitation; hence, the denotation is merely intellectual.

The justifiable opinion, however, is that there exists no necessity of any kind, i.e., there is no religious prohibition of eschewal necessitated by the very command in such a way that there exists a juristic prohibition beyond the very command to the act. The reason is that the obligation, whether it is denotation of the imperative or its intellectual implication - the latter being true - is not a composite concept; but rather it is a simple, singleone which is necessity of the act. A requisite of obligation of something, of course, is prohibition of its eschewal. However, that prohibition is not a juristic prohibition made by theLord as He is the Lord, but rather is an intellectual secondary prohibition without there being a prohibition from the divine lawgiver beyond the very obligation. The reason is obvious: the very command to do something in an obligatory mode is sufficient to prohibit its eschewal; so, there is no need for the divine lawgiver to prohibit eschewal of something in addition to commanding it.

•al-Đidd al-Khāşş (Particular Opposite)

To hold that to command something necessitates prohibiting its particular opposite (i.e., the existential, incompatible affair, such as eating with regard to prayers → mas’ala al-đidd) is dependent upon and secondary to the belief in its necessitation the prohibition of its general opposite (→ al-đidd al-‘āmm); and since there is no juristic prohibition of the general opposite, there is no juristic prohibition of the particular opposite either.

•al-Djam ‘ al-‘Urfī (Customary Gathering)

Bydjam‘ is meant taking two contradictory proofs altogether. It is an intellectual judgment that taking two seemingly contradictory proofs altogether is more plausible than leaving either of them. This judgment isdue to the fact that contradiction does not occur unless all constituents of authority exist in either of them as to both chain of transmission and denotation. In case of existence of all constituents of authority, i.e., existence of the origin, nothing may cause leaving the proof but existence of an impediment to the efficacy of the origin; and that impediment can be nothing but their mutual repudiation. On the other hand, possibility of gathering both proofs as to their denotations leaves no room for certainty of their mutual repudiation, which leads to lack of certainty as to the existence of impediment to the efficacy of authority with regard to the proof. Thus, how can one judge that one or both of those proofsis no longer authoritative proof?

However, itshould be noted that such judgment of the intellect is not absolute, but rather is conditional upon the gathering being “customary” or “acceptable,” in the sense that it should not be in a way that custom of people of the language does not confirm it on the one hand and no third proof supports it on the other. (See also: al-muradjdjiĥāt)

F

•al-Fawr (Promptitude)

There is a dispute among Uşūlīs whether the imperative per se conventionally denotes promptitude, belatedness (al-tarākhī),both of them as homonymous, or none of them but rather it is the contextual evidence that designates any of them.

The justifiable is the last opinion; for the imperative denotes merely the wishful relation (→ al-amr) and hence has no indication of any of the promptitude or belatedness. Thus, should an imperative be void of any evidence, itcould be performed either promptly or belatedly.

G

• Ghayr al-Mustaqillāt al-‘Aqliyya (Dependent Intellectual Proofs)

Dependent intellectual proofs are those whose major premises are intellectual while their minor premises are juristic, such as “this act is juristically mandatory,” and “whatsoever is juristically mandatory it is intellectually necessitated that its preliminary should juristically be mandatory (→ muqaddima al-wādjib),” or “whatsoever is juristically mandatory it is intellectually necessitated that its opposite should juristically be forbidden (→ mas’ala al-đidd),” and so forth. As clearly seen, minor premises of such syllogisms are proved in the science of fiqh, so they are juristic, while their major premises are intellectual, i.e., it is the intellect’s judgment that there exists an intellectual implication between the precept in the first premise and another juristic precept. The consequence of such minor and major premises becomes a minor premise of a syllogism whose major premise is authority of intellect.

H

• Ĥadīth al-Raf‘ ( Removal)

This is the prophetic ĥadīth argued by uşūlīs for “the clearance from obligatory” (→ awhich declares: “Nine things are removed from my people: error, forgetfulness, what they have done under duress, what they do not know, what they cannot endure, what they have done under compulsion, to take as a bad omen, jealousy, to think of createdness [of the Almighty] so long as one has not uttered it.”

• Ĥāl al-Isnād →al-Mushtaqq

• Ĥāl al-Talabbus →al-Mushtaqq

•al-Ĥaqīqa al-Mutasharri‘iyya (Muslims' Literal Meaning)

Doubtless all Muslims understand specific juristic meanings from such words as şalāt (the prayers), şawm (fasting), ĥadjdj (pilgrimage to Mecca), and the like, while we know that such meanings were unknown to Arabs before Islam and were transferred to those new juristic meanings after the Islamic era. Had such transfer happened after the holy Prophet's time, we would have Muslims' literal meaning (al-ĥaqīqa al-mutasharri‘iyya [q.v.]) according to which any such term found in the Quran and Sunna should be interpreted as its usual, and not juristic, meaning in the process of inferring juristic precepts. Seealso: al-ĥaqīqa al-shar‘iyya.

•al-Ĥaqīqa al-Shar‘iyya (Juristic-Literal Meaning)

Doubtless all Muslims understand specific juristic meanings from such words as şalāt (the prayers), şawm (fasting), ĥadjdj (pilgrimage to Mecca), and the like, while we know that such meanings were unknown to Arabs before Islam and were transferred to those new juristic meanings after the Islamic era. Now, the question is that whether such transfer has happened in the holy Prophet's time so that we may have the juristic-literal meaning or it has occurred after him and therefore what we have in hand is Muslims' literal meaning (al-ĥaqīqa al-mutasharri‘iyya [q.v.]).

The answer to that question would make a difference in the process of inferring juristic precepts from the Quran and Sunna. Should there exist the juristic-literal meaning, any such term without contextual evidencewould be predicated to its juristic meaning, while it must be interpreted as its usual meaning if such a juristic-literal meaning does not exist.

It is obviously clear that those new meanings were not made through convention by specification (→ al-wađ’ al-ta‘yīnī), for in that case it should have been narrated to us in one way or another. As for the “convention by determination” (→ al-wađ’ al-ta‘ayyunī), it must be said that it had doubtlessly happened in Imam Ali's time, for by that time all Muslims have been using such terms in their new juristic meanings for a long time. Hence, since in Shiite jurisprudence only such prophetic ĥadīths thatare narrated by holy Imāms are treated as valuable, all such terms in their words should be predicated to their new juristic meanings where they are void of any contextual evidence. As for the holy Quran, there is no room for such a dispute, since almost all such wordsare used in it along with contextual evidence and convey their new juristic meanings.

•al-Ĥudjdja (Authoritative Proof)

Ĥudjdja literarily means whatsoever capable ofbeing used as an argument against someone else through which one can overcome one’s opponent in a dispute. Overcoming someoneelse is either by making him silent and nullifying his argument, or by making him accept one’s argument - in this sense ĥudjdja being an excuser. In uşūl al-fiqh, however, ĥudjdja means that which proves its object but does not attain the level of certitude (al-qaţ‘), i.e., it does not cause certitude with regard to its object - since in case of certitude it is the certitude which is ĥudjdja, though in its literal meaning. In other words, ĥudjdja is whatsoever revealing and indicating something else in such a way that the former proves the latter -its proving being made by the lawgiver, duty-maker as it is the actuality. This proving will be sound only by adding theproof which proves validity and authority of that revealing and indicates the thing in the divine lawgiver’s view. Therefore, ĥudjdja in this sense does not include certitude (al-qaţ‘), i.e., certitude is not called ĥudjdja in this sense, but in the literal sense; for certitude is essentially a way and cannot be made an authoritative proof by anyone. Ĥudjdja in this sense is synonymous with amāra, proof (al-dalīl), and way (al-ţarīq). See also: al-ĥukm al-żāhirī

•al-Ĥudjdjiyya → al-Ĥudjdja

•al-Ĥukm al-Wāqi‘ī (Actual Precept)

A precept which is directed to something per se as it is an act - such as the prayers, since the obligation is directed to the prayers as it is prayers and an act per se without consideration of anything else - is called “the actual precept” (al-ĥukm al-wāqi‘ī) and the proof which proves it “the persuasive proof” (al-dalīl al-idjtihādī).

•al-Ĥukm al-Żāhirī (Apparent Precept)

Where a precept is directed to something as its actual precept is unknown and there is no proof for supporting any of the existing opinions, the jurist doubts the primary, actual precept of the disputed matter; and since he is not supposed to remain perplexed practically, there must exist another precept, though intellectual, for him, such as obligation of precaution, clearance from obligation, or ignoring the doubt. Such a secondary precept is called “the apparent precept” (al-ĥukm al-żāhirī) and the proof which proves it “the juristic proof” (al-dalīl al-faqāhatī) or “the practical principle” (al-aşl al-‘amalī [q.v.]). Seealso: al-ĥukm al-wāqi‘ī.

•al-Ĥukūma (Sovereignty)

Ĥukūma is inclusion or exclusion of something in or from an object by a predicative sentence through expanding or limiting realm of the object or subject; such as “perform ablution for prayers,” and on the one hand: “circumambulation of Ka‘ba is prayers” leading to the conclusion that one should perform ablution while circumambulating in ĥadjdj, and on the other: “funeral prayers is not prayers,” leading to the conclusion that one is not supposed to perform ablution for funeral prayers. Thus, ĥukūma occurs where one of the two seemingly contradictory proofs is supposed tobe given priority over the other because of its sovereignty while both of them are still authoritative proofs, i.e., neither of them repudiates the other. Seealso: al-ta‘āruđ.

I

•al-‘Ibādī (Act of Worship)

‘Ibādī is an act whose religious acceptance is conditional upon the duty-bound’s intention of proximity to God, or that which is the sheer burden made by God for proximity to Him; such as prayers, fast, pilgrimage to Mecca, and the like.

•al-Idjmā ‘ (Consensus)

Being defined as consensus of Muslim jurists, that of Muslim community, and so on,idjmā‘ is considered one of the three-fold or four-fold free-standing sources of religious precepts by Sunnī Uşūlīs and jurists. Shī‘a Uşūlīs and jurists, however, do not treat consensus as a free-standing source, but rather as a way through which Sunna can be revealed. Thus, authority and innocence are for words of the infallible-innocent personality, which may sometimes be revealed by theconsensus, and not for the consensus per se.That is why Shī‘a jurists sometimes treat unanimity of opinion of a few individuals whose unanimity is technically not called idjmā‘ as consensus, because of its definite revelation of opinions of the infallible-innocent personality on the one hand, and do not consider a consensus which does not reveal opinions of the infallible-innocent personality as idjmā‘ even though it is technically called so on the other.

Before any argumentation, one point should be noted: it is obviously clear that consensus of all people, or a specific people, as it is consensus has no implication to revealing divine precepts; for it is not of unanimity of opinion of the wise as they are the wise which is an authoritative proof like the Book and Sunna. Unanimity of opinion of the wise as they are the wise is in fact the very intellectual proof, as will be discussed later, and not the technical consensus. The reason why a consensus of people which is not included in the unanimity of opinion of the wise as they are the wise cannot be considered a source for religious precepts is that such a consensus may be caused by people’s habits, beliefs, emotions, or sentiments which are of human characteristic and the divine lawgiver transcends them. Should consensus of people as it is consensus be an authoritative proof, consensus of other people who follow other religions should be an authoritative proof as well - something no Muslim believes in. Thus,some other proof must be presented by Sunnī jurists with regard to the authority of consensus .

As for Shiite perspective, consensus as it is consensus would have no value should it not reveal opinion of the infallible-innocent personality, and that is why it is not considered afree-standing source for religious precepts. In fact, authority is for the revealed, i.e., Sunna, and not for the revealer, i.e., consensus; and consensus precisely plays the role of massive report - with one difference: the latter reveals the very words of the infallible-

innocent personality (and that is why it is called lexical proof (al-dalīl al-lafżī)) while the former reveals the opinion of the infallible-innocent personality and not his words (and that is why it is called thematic proof (al-dalīl al-lubbī) which conveys the theme and not the terms). Now that consensus is an authoritative proof because of revealing opinion of the infallible-innocent personality and not per se, there is no need for unanimity of all; rather, that of those whose unanimity reveals words of the infallible-innocent personality would be sufficient, no matter how many they are - as explicitly asserted by some great Shī‘a jurists and Uşūlīs.

As for the ways through which the consensus reveals opinion of the infallible-innocent personality, theyare claimed to be up to twelve four of which being more considerable. However, since most of later Shī‘a jurists and Uşūlīs have raised doubts about them and followed some specific way called “the way of surmise (ţarīqa al-ĥads),” we will discuss this way only.According to the way of surmise, when one observes that all Shī‘a jurists have a consensus on a precept while they disagree too much on most of precepts, one will definitely become certain that their consensus is rooted in the holy Imām’s opinion and, being handed down from generation to generation, they have received it from their Imām - as is the case with consensus of followers of all other creeds and sects with regard to which no one doubts that the matter of consensus is taken from their leader. It should be emphasized that in the way of surmise, consensus of all jurists of all times, beginning from the era of holyImāms, must be actualized; for disagreement of one earlier generation, and even one single known outstanding jurist, prevents actualization of certitude in this connection.

All detailed discussions and arguments in Shiite uşūl al-fiqh on the authority of consensus as well as the ways through which the consensus reveals opinion of the infallible-innocent personality deal with al-idjmā‘ al-muĥaşşal (the acquired consensus), i.e., a consensus which is acquired by a jurist who has searched all opinions of all jurists in person.It is this kind of consensus whose authority is a matter of dispute.

However, a case where a jurist has acquired a consensus and then has reported it to others (which is called al-idjmā‘ al -manqūl, i.e., the reported consensus), is also a matter of dispute and different opinions are presented in this connection.Some have considered the reported consensus an authoritative proof since it is a single report, some have treated it as not being an authoritative proof since it cannot be considered an instance of single report, some have considered it an authoritative proof where it reveals religious precepts in the view of the one who is reported to and not the reporter alone, and others have held some other different views in this regard. Detailed discussions on this problemshould be pursued in Shiite books of uşūl al-fiqh.

•Idjtimā‘ al -Amr wa’l Nahy (Conjunction of the Command and the Prohibition)

Uşūlīs have disputed from a long time agowhether or not conjunction of command and prohibition in one act, i.e., a single act as it has one existence which is a gathering of two designations, is possible. By conjunctionis meant accidental encounter between the commanded act and the prohibited act in one thing. This may occur only where the command is directed to a designation and the prohibition to another designation which has no relation to the first, but those designations encounter rarely in one thing - here, conjunction of the command and the prohibition occurs, i.e., they encounter one another. Such conjunction of and encounter between two designations is of two kinds: case conjunction (al-idjtimā‘ al -mawridī,) and real conjunction (al-idjtimā‘ al-ĥaqīqī).

Case conjunction occurs where there is no one act which corresponds to both designations, but rather there are two acts which have become synchronous and simultaneous one of which corresponding to the designation of the mandatory act and the other to the designation of the prohibited act. For instance, when someone is performing the prayers and in the meantime looking at a woman whom looking atis religiously prohibited , looking does not correspond to designation of the prayers, the prayers do not correspond to designation of looking, and both of them do not conform to one act. Such case conjunction is neither impossible nor a matter of dispute in this discussion. Hence, should one look at a woman whom looking atis religiously prohibited while performing one’s prayers, one would be both obedient and disobedient simultaneously without one’s prayers being annulled.

Real conjunction, even though at a glance and in a conventional view, occurs where there is oneact which corresponds to both designations, such as the well-known example of performing the prayers in an expropriated space. In that example which is the matter of dispute in this discussion, designation of the prayers, which is the commanded act, has no relation to that of expropriation, which is the prohibited act, but it accidentally happens that the duty-bound gathers them by performing the prayers in an expropriated space. Here, designation of the commanded, i.e., the prayers, encounters designation of the prohibited, i.e., expropriation, in that prayers performed in an expropriated space; hence, that single act corresponds to both designations of the prayers and expropriation. Thus, that single act is included in the commanded act from oneaspect which necessitates treating the duty-bound as obedient while it is included in the prohibition from another aspect which necessitates treating him as disobedient.

Now, the matter of dispute in this discussion becomes clear: Is it possible that the command should remain directed to that designation which corresponds to that “one” and also the prohibition should remain directed to that designation which corresponds to that “one” and the duty-bound should be considered both obedient and disobedient in one act, or is it not possible and the gathering of the two designations is either commanded only or prohibited only, i.e., either only the command remains actual and the duty-bound is obedient alone or only the prohibition remains actual and he is disobedient alone? Both of these opinionsare held by Uşūlīs each presenting their own proofs in order to establish their claims.

A very important point to be borne in mind is that the matter of dispute among Uşūlīs over possibility or otherwise of conjunction of the command and the prohibition concerns where the duty-bound has a way out (al-mandūĥa), i.e., he is able to obey the command in another case other than the gathering; or, in other words, he has encountered the conjunction deliberately because of misuse of his free will. It is such case that is a matter of disagreement among Uşūlīs: some believe in its possibility and others in its impossibility.

Nevertheless, there is no dispute among Uşūlīs over the impossibility of conjunction where obedience to the command can be actualized exclusively through the gathering and the duty-bound has become compelled to encounter the conjunction; for it is clear that in case of exclusion, the actuality of two duties becomes impossible, since obedience of both is impossible: if the duty-bound does the commanded act he has disobeyed the prohibition, and if he eschews it he has disobeyed the command. Therefore, all Uşūlīs agree that conjunction of the command and the prohibition in such case is impossible and either the command or the prohibition isactual . However, there is disagreement among Uşūlīs as to which of them is so.

•al-Idjtimā ‘ al-Ĥaqīqī →Idjtimā‘ al-Amr wa’l Nahy

•al-Idjtimā ‘ al-Mawridī → Idjtimā‘ al-Amr wa’l Nahy