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CHAPTER 17: AUTHORITY OF APPEARANCES (ĤUDJDJIYYA AL-ŻAWĀHIR)

Preliminary Notes 1. In the first part, whose end was explanation of minor premises of principality of appearance, appearances of some disputed terms were taken into consideration from a general aspect. In this chapter, we discuss the major premise of principality of appearance, i.e., authority of appearance.

2. The discussion of authority of appearance is pursuant to the discussion of the Book and Sunna. It means that appearances are not independent, separate, free-standing proofs; rather, their authority is needed to be proved for the sake of consideration of the Book and Sunna. Thus, principality of appearance is a complementary to the authority of the Book and Sunna; for it is obviously clear that one cannot treat the Book and Sunna as authorities except when their appearances are authoritative proofs - since explicit-definite phrases, whose denotation is definitive, in those two sources are very rare.

3. It was proved earlier that conjecture is principally forbidden to be followed except where a definite proof proves its authority.

Appearances are among conjectures; therefore, we should look for a definite proof for their authority so that we may take appearances of Quranic verses and ĥadīths into consideration. That proof will be presented in this chapter.

4. The discussion of appearances needs the two following steps:

4.1. Whether a specific term is apparent in a specific meaning. e whole first part dealt with discussing appearances of some terms whose appearances were a matter of dispute, such as terms of commands and prohibitions, those of general and particular, and so on. In fact, they are some minor premises of the principality of appearance.

4.2. Whether a term whose appearance is recognized is an authoritative proof in its specific meaning from the divine lawgiver’s view so that both 5.

the divine lawgiver and duty-bounds can argue it. That is the major premise by adding its minor premises one will be allowed to take appearances of Qur’ānic verses and ĥadīths into consideration and act on their basis.

The first step, i.e., recognition of minor premises of principality of appearances, is generally concerning two issues:

5.1. The issue of convention of the term. Should the convention be recognized, the term would necessarily be apparent in the meaning specified; such as appearance of the imperative in the obligation, that of conditional sentence in some implicatures, and so forth.

5.2. Whether a general or particular evidence exists as to whether the meaning is meant by the term. The need to evidence appears either in case of intending other than what the term is specified for, or in case of commonness of a term in more than one meaning. Should the evidence exist, the term will be apparent in what the evidence denotes, no matter the evidence is joint or separate.

In case of doubt over those two cases, there are some ways for knowing convention of terms as well as general evidence some of which being as follows:

a) One searches various usages of the term and exercises his own opinion if one is among experts on the language and rhetoric.

b) One refers to signs of literalness, such as preceding other meaning, and the like.

c) One refers to opinions of lexicographers, although validity of this way is a matter of dispute. In this connection, it should be noted that, initially, one will not be justified in referring to opinions of lexicographers for the issue of convention, since lexicographers are chiefly concerned with reporting those meanings in which the terms are commonly used without caring much about distinguishing literal from figurative meanings -

except al-Zamakhsharī in Asās al-Balāgha, and some works on philology.

Nevertheless, in case lexicographers explicitly declare that a meaning is literal, one may accept it only if such declaration provokes knowledge of convention. Otherwise, there must be a proof of authority of the conjecture caused by lexicographers’ opinions so that referring to their opinions may be justifiable. Here are some proofs presented in this connection:

c.1) Consensus. It is said that there is a comprehensive consensus, without even a single objector, on accepting the opinion of lexicographers even though the opinion may be declared by a single lexicographer. That claim, however, is absurd; since neither does such a consensus exist among all jurists nor is it an authoritative proof, for the infallible-innocent personality does not refer to the opinion of lexicographers so that his agreement about this issue may be revealed.

c.2) The conduct of the wise. To refer to trustworthy experts in all such affairs that are in need of skill and independent persuasion such as medicine, engineering, and the like - among which being lexicography and complicated science of terms - is definitely a practical conduct of the wise; and it is absolutely clear that the lexicographer is considered an expert by the wise. On the other hand, no prohibition from that practical conduct is proved on the part of the divine lawgiver. It is concluded from those two premises that the divine lawgiver agrees with them and is satisfied with that conduct.

However, agreement of the divine lawgiver cannot be discovered merely through His prohibition not being proved, as will be explained in detail in chapter 19; there must exist three conditions none of which being existent here. For neither is the divine lawgiver in need of referring to experts so that He may have a practical conduct in this connection, nor is the conduct of the wise in referring to opinions of lexicographers even in religious affairs proved, nor does a definite proof announcing agreement and confirmation of the divine lawgiver exist - on the contrary, Qur’ānic verses which prohibit from following conjecture sufficiently prove prohibition from that practical conduct.

c.3) The intellectual proof. It is a definite judgment of the intellect that the ignorant must refer to the knowledgeable; and since that intellectual judgment is among the praised opinions on which the wise are unanimous, the divine lawgiver, who is among the wise and even their chief, should have judged the same. This proof is very close to the factuality, and not only justifies but necessitates the reference to the opinions of lexicographers.

Justification of the Authority of Appearance

The only proof of authority of appearance is the conduct of the wise, which consists, as said earlier, of two premises:

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.

b) 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 Him is proved in this connection on the other.

It is 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.

However, some doubts have been cast upon generality of either of those premises; of each we will discuss only one:

Authority of the Appearance with regard to Those Whose Communication Is Not Meant

In his book al-Qawānīn al-Muĥkama, al-Qummī (d. 1810) has held that the appearance is not an authoritative proof with regard to those whose communication is not meant - by them being meant people of our time and the like who were not orally addressed by the Book and Sunna. He argues that the holy Qur’ān did not address those who were not present; the Qur’ān is not like usual books which are written to communicate with whoever reads them. As for Sunna, ĥadīths of innocent-infallible personalities in the position of answering questions have merely meant communication of ideas to questioners and no one else.

However, that idea is not sound and is criticized by all later scholars. The reason is that such statement is ambiguous; it is not clear what is meant by negation of authority of appearance with regard to those whose communication is not meant. If by that is meant that:

1. The speech has no essential appearance with regard to such persons; then, it is clearly untrue.

2. The wise have no practical conduct to ignore the probability of existence of evidence in the appearances with regard to those whose communication is not meant; then, it is a claim without any proof. In fact, what is known from the conduct of the wise is something contrary to that, for the wise do not differentiate in acting on the basis of literal appearance between those whose communication is meant and those whose communication is not meant.

3. The intellect allows the wise speaker to count on some evidence which is unprecedented and unknown to other than the one whose communication is meant; then, it does not harm the authority of appearance proved by the conduct of the wise - although it is sound per se. What makes the appearance an authoritative proof is negation of probability of existence of evidence by the conduct of the wise and not negation of that probability by judgment of the intellect, and none of them implicates the other, i.e., lack of negation of probability of existence of evidence by the intellect does not implicate lack of that negation by the conduct of the wise - the latter being influential in the authority of appearance. The fact is that this statement is not precise, or correct; for the appearance will not be appearance unless where a probability of existence of evidence which is not negated by the intellect exists; otherwise, the speech will be explicit-definite (naşş) and not appearance.

Generally speaking, the speech is apparent, and not explicit-definite which conveys the objective definitely, only when it is associated with such possible intellectual probability or probabilities as error, negligence, deliberateness of the speaker (for some reason), or that of designation of evidence no matter hidden or unhidden from others. Furthermore, the appearance is not an authoritative proof unless where the practical conduct of the wise ignores such probabilities, i.e., it does not consider them in the position of consideration of the appearance.

Thus, this justification of that opinion is not acceptable, for it proves, at most, that existence of hidden evidence from the one whose communication is not meant is probable since it is not reprehensible if a wise man does so; therefore, existence of evidence is intellectually possible. However, this does not contradict the practical conduct of the wise to ignore such probability.

Should it be accepted that authority of the appearance differs from the one whose communication is meant to others, the point would be examining its efficacy with regard to the holy Qur’ān and Sunna. Since duties mentioned in the Qur’ān are obviously common for all duty-bounds with no peculiarity to those whose communication is meant, there must exist no evidence which is hidden for those who are not orally addressed. In fact, the holy Qur’ān has doubtlessly not addressed only those whose communication is meant.

As for Sunna, ĥadīths indicating it contain duties for all duty-bounds and mean communication with everybody including those who are not orally addressed; they rarely deal with questions peculiar merely to the addressee - cases in which the duty should be generalized in order to include others as well, because of the rule of commonness of all duty-bounds in all duties.

On the other hand, should such evidence exist, trustfulness of transmitter of ĥadīth necessitates mentioning that. Otherwise, the principle of lack of evidence negates existence of such evidence.

Authority of Appearances of the Book

Some Akhbārīs have allegedly held that appearances of the holy Qur’ān are not authoritative proofs and one is not allowed to take them into consideration in his religious duties without referring to their interpretation by holy Imāms.

Before examining soundness of that idea, we have to mention that those who believe in the authority of appearances of the Book do not mean:

1. Authority of all parts of the Book in which some ambiguous verses, whose arbitrary interpretation is not allowed, exist. However, existence of ambiguous verses cannot prevent from taking appearances of the Book into consideration, for it is not that difficult for an expert to distinguish ambiguous from unambiguous;

2. Permissibility of hastening to act in accordance with ambiguous verses without thorough investigation, in the Book and Sunna, of whatsoever capable of changing the appearance, such as abolisher, restrictor, evidence of figurative meaning, and so forth; and 3. Validity of acting in accordance with the appearances of the Book on the part of everybody, even though he has no knowledge of whatsoever plays a role in understanding themes of its verses. That is why the lay cannot claim understanding appearances of the Book and act on their basis. That is not something peculiar to the holy Qur’ān; it applies to every scholarly/scientific text which needs precision. For although such texts have appearances to be understood on the basis of terminology and grammatical rules capable of being used as arguments for and against both their authors and addressees, a layman cannot refer to them to become an expert on that science using such appearances as arguments for and against without studying them at a learned expert - and should he do that, he would definitely be blamed by the wise.

Now, what do those Akhbārīs mean by their denial of authority of appearances of the holy Qur’ān? If they mean what we have just mentioned, i.e., impermissibility of hastening to consideration of them without thorough investigation of whatsoever capable of changing its appearances, that is absolutely correct and natural. However, we mentioned that it does not mean that appearances of the Book are absolutely out of reach of everybody and that no one has authority to refer to them. And if they mean that one should only deal with what is received from holy Imāms and is absolutely not allowed to consider Qur’ānic appearances in cases where no depiction from holy Imāms exists, even though one is among experts on the language and other sciences necessary for understanding them while one has quested for whatsoever capable of being evidence of change of appearances, this is something improvable by the proofs they have presented. On the contrary, there are a good number of ĥadīths referring people to the holy Qur’ān, such as what commands them to compare contradictory ĥadīths with the Qur’ān and to accept the one which is in agreement with it, to compare not only contradictory but all ĥadīths with the Qur’ān, to annul such conditions of contracts which contradict it, and some specific ĥadīths allowing consideration of its appearances.

Furthermore, to refer to ĥadīths of holy Imāms means consideration of appearances of their words and not those of the Book. Now, one may ask whether everybody is allowed to refer to appearances of ĥadīths without being among people of knowledge and deliberation, without questing for probable evidence, and without being an expert on whatsoever plays a role in understanding their themes.

Add to this that, contrary to the Book, ĥadīths are in need of investigation of their chain of transmission on the one hand and are often narrated through conveying the meaning and not recounting the very words of holy Imāms on the other.

In short, although it is correct that understanding the Qur’ān is complicated and only experts can deal with it, it does not mean that its words have no appearances and its appearances are not authoritative proofs - as is the case with any other technical, scholarly text.

CHAPTER 18: THE CELEBRITY (AL-SHUHRA)

Literally,al-shuhrameansobviousnessandclarityofsomething.Terminologically, however, it is of two applications: one is in the science of ĥadīth where any ĥadīth whose transmitters are less than the level of massive report (mutawātir) is called mashhūr (i.e., celebrated) or sometimes mustafīđ, and the other is in the jurisprudence where any opinion of jurists on a juristic problem which is abundant but not at the level of consensus is called mashhūr (and sometimes the very jurists are called the same, as in “mashhūr says so,” or “mashhūr holds that….”).

Thus, shuhra is of two varieties:

1. Shuhra in the ĥadīth. In this kind, it is not necessary that jurists should have taken that ĥadīth into consideration in a celebrated way as well; they may or may not do so. However, we will mention in chapter 21 that such celebrity provokes preference of the celebrated ĥadīth over others, and that is why the celebrated ĥadīth is an authoritative proof from this aspect.

2. Shuhra in the verdict, meaning celebrity of a verdict of jurists which provokes the belief in its conformity to the factuality - though not at the level of certitude. This is, in turn, of two varieties:

2.1. It is known that such shuhra is dependent upon a specific ĥadīth available to us. This kind is called “practical celebrity (al-shuhra al‘amaliyya)” and we will discuss in chapter 21 whether it compensates for the weakness in the chain of transmission and/or for the weakness in the denotation.

2.2. It is not known on what that celebrity is dependent, whether there exists a ĥadīth in conformity with the celebrity but the celebrity did not consider it or it is not known whether the celebrity has considered it, or there is no ĥadīth at all. This kind is called “celebrity of verdict (al-shuhra al-fatwā’iyya).”

It is this celebrity of verdict that is the matter of dispute here, for some jurists have allegedly held that this kind of celebrity, as it is celebrity, is an authoritative proof over juristic precepts and, like single report, should be included in particular conjectures, while others hold that there is nothing that can confirm its authority. The latter is the justifiable opinion, and all proofs claimed for its authority, as listed below, are null and void:

1. Proofs arguing authority of single report denote that of celebrity as well through accordant implicature; for the conjecture actualized by celebrity is stronger than the one actualized by single report. Thus, celebrity takes priority over single report with regard to authority.

This argument is not sound, for it depends upon the criterion of authority of single report being its causing conjecture so that what provokes stronger conjecture should be given priority in authority, while that is a mere probability and has no supporting proof - if what is proved not being nonconsideration of actual conjecture.

2. Generality of argumentation in the verse 6 of sūra 49, “lest you afflict a people unwittingly” (see chapter 14, proofs of authority of single report from the Book) proves authority of celebrity; for the argumentation reveals that what prohibits from accepting report of an evil-doer without investigation is unwittingly afflicting denoting thereby that whatsoever does not lead to unwittingly afflicting is an authoritative proof. Since this is the case with celebrity, one should take it into consideration.

Should it be accepted that this part of the verse is argumentation, however, it should be noted that this reasoning is consideration of “generality of opposite of argumentation” and not “generality of argumentation,” and there is no indication of opposite of argumentation in the verse in a necessary manner. Let us take an example. Should doctor prohibit patient from some food because it is sour, it would not mean that the patient is allowed to, or must, eat whatsoever is not sour. The case is the same here, for unlawfulness of consideration of report of an evil-doer without investigation because one is not safe from unwittingly afflicting does not denote obligation of consideration of whatsoever is safeguarded from that. In other words, such argumentation in the verse denotes that unwittingly afflicting is an obstacle to effectiveness of origin of authority of a report, but does not denote that origin of authority exists in whatsoever in which no obstacle lies. Lack of obstacle in celebrity does not necessitate existence of origin of authority in it.

As for authority of single report of a righteous-trustworthy person, it was not inferred from generality of argumentation, but rather from implicature of condition whose authority is a matter of certainty.

*****

It is quite well-known that great scholars do not dear oppose celebrity unless with a strong, clear proof which makes them confident in their diverging from celebrity. They usually insist on following the celebrity and finding a proof in favor of it, even though the contrary proof may be stronger. This is not because of imitation or belief in the authority of celebrity, but rather due to honoring opinions of great scholars.

This is a common point in all kinds of science and art, for to oppose majority of men of research in any branch of knowledge is not that easy, except when there exists a strong proof and motivation. A fair-minded scholar always treats himself as being wrong in comparison with the celebrity and is afraid of being in double ignorance, especially when the opinion of celebrity is in accordance with the precaution in religious affairs.

CHAPTER 19: THE CUSTOM (AL-SĪRA)

By the custom is meant continuity of practical conduct of people to do or to leave something. By people, in turn, is meant either all people of every folk and creed, whether Muslim or non-Muslim - this custom being called “the custom of the wise (sīra al-‘uqalā’)” and by recent Uşūlīs “the conduct of the wise (binā’ al-‘uqalā’)” - or only Muslims as they are Muslims or a specific sect of Muslims such as Shī‘a - this custom being called “the custom of the people of the religion (sīra almutasharri‘a),” or “the religious custom (al-sīra al-shar‘iyya),” or “the Islamic custom (al-sīra al-Islāmiyya).” Since the discussion differs in kind as to those two customs, we deal with them separately.

Authority of the Conduct of the Wise

The proof called “the conduct of the wise (binā’ al-‘uqalā’)” 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 that such 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 specific way ordering believers to follow it.

It should 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) 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 (2.3.1.) is either expected to be in agreement with the wise since there is no problem with that, as in the case of single report,(2.3.2.) or is not expected to be in such agreement because of existing a problem, as in the case of the principle of continuity of the previous state (aşāla al-istişĥāb).

If the former, if it is 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 cares about. Had He not confirmed that while that 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 actual prohibition 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 to take such custom into consideration in religious affairs.

Authority of the Custom of the People of the Religion

The custom of the people of the religion, i.e., Muslims, to do or to eschew something is in fact a kind of consensus. It is even the highest level consensus, for it is an actual consensus of all Muslims while consensus on verdicts is a literal one and made only by scholars.

Such conduct is of two kinds, for it is sometimes known that it has been prevalent in the time of infallible personalities in such a way that the infallible personality has exercised, or, at least, confirmed it, and sometimes that is not known or it is known that such custom has appeared after infallible personalities’ time.

If the former, that custom is undoubtedly a definite, authoritative proof of agreement of the divine lawgiver and is, per se, an indicator of religious precepts.

It is this point that differentiates between custom of the people of the religion and custom of the wise; for the latter is in need of another proof proving its confirmation by the divine lawgiver, even though through lack of establishment of His prohibition.

As for the latter, there is no way to rely on that for discovering agreement of infallible personalities in a certain manner, as was the case with consensus. The case is even worse and lower with this one, as will be explained. Consideration of the way customs take shape in human communities, including Muslims’, clarifies the influence of irreligious habits on human emotions: some influential person does something in order to satisfy his own desires or for some other reason such as imitating other cultures, then comes someone else who follows the first, and thereby the act continues and gradually becomes prevalent among people without there being someone who prohibits them from that wrong act because of neglectfulness, heedlessness, fear, and the like. That act is conveyed by the first generation to the second and other coming generations and becomes a custom of Muslims. In this case, should someone cast doubts upon that custom, which has become sacred with the passage of time, and blame Muslims because of their heedlessness, he would definitely be treated as someone against the Islamic laws and customs.

That is why we cannot treat present Muslim customs as being present in early Islam; and when we doubt authority of something we have to treat it as unauthorized, for there is no authority but through knowledge and certainty.

As for the extent of an authorized custom of the people of the religion, it proves lawfulness of something if it is a custom of doing, and lawfulness of eschewing and lack of obligation if it is a custom of eschewal. There is no denotation of obligation or unlawfulness, even preference or disapproval, in any custom of doing or eschewing; for the act is, per se, ambiguous having no denotation more than lawfulness of doing or eschewing.

CHAPTER 20: THE (JURISTIC) ANALOGY (AL- QIYĀS)

Qiyās, to be defined precisely later, is a matter of major dispute among Muslim scholars of different sects. Following their infallible-innocent Imāms, Shī‘a scholars have denied its authority; and among Sunnī sects, followers of Dāwūd b. Khalaf, called al-Żāhiriyya, and Ĥanbalīs hold the same. The first one who took the analogy into consideration and used it widely was Abū Ĥanīfa (in the second Hijri century). That method, however, was later on adopted by Shāfi‘īs and Mālikīs and used by some in such an extremist way that they preferred it to the consensus and rejected some ĥadīths by it.

Definition of Qiyās

Qiyās is defined variously the best of which being “establishment of a precept for something by a motive (al-‘illa) because of its establishment for something else by that motive.” The first thing is called “subordinate (al-far‘),” the second “principle (al-aşl ),” and the common motive “encompassing (al-djāmi‘).” In fact, qiyās is a function performed by the arguer in order to infer a juristic precept for something whose precept is not depicted by the divine lawgiver inasmuch as such a function provokes certainty or conjecture as to the precept of that thing.

This function is the very predication of the subordinate upon the principle with regard to the proved precept of the principle through which the arguer grants the same precept to the subordinate - if obligation, obligation; if unlawfulness, unlawfulness; and so forth - in the sense that he argues that the subordinate should have the same precept with the principle because of commonness of the motive. Thus, that arguer’s function becomes a proof of religious precepts, since it provokes certainty or conjecture that the divine lawgiver has the same judgment.

Pillars of Qiyās

From what said earlier, we can conclude that Qiyās has four pillars:

1. The principle (al-aşl), something whose precept is known, 2. The subordinate (al-far‘), something whose precept is to be discovered, 3.The motive (al-‘illa), also called the encompassing (al-djāmi‘), the common facet between the principle and subordinate which necessitates establishment of the precept, and 4. The precept (al-ĥukm), the kind of precept which is proved for the principle and is to be proved for the subordinate.

Authority of Qiyās

It was frequently said that authority of any conjectural proof is due to knowledge.

Thus, qiyās, like all other conjectural proofs, would not be an authoritative proof except in the two following states:

1. It per se provokes knowledge of the precept, or 2. There is a definite proof which proves its authority.

Provoking Knowledge

Juristic qiyās is an analogy, and it is proved in the science of logic that analogy provokes nothing but probability; for similarity of two things in something, even in many things, does not necessitate their similarity in all aspects and properties. Yea, when aspects of similarity between the principle and the subordinate become more and stronger, probability becomes stronger and may reach the level of conjecture - but never that of certainty and knowledge - and, as frequently emphasized, conjecture avails naught against truth.

Of course, should we know, no matter through which way, that the similarity aspect is the complete cause for the precept in the principle with the divine lawgiver on the one hand and that the same complete cause with all of its properties exists in the subordinate on the other, we would definitely know that the subordinate has the same precept; for this is not juristic analogy, but rather logical syllogism which definitely provokes certainty and knowledge. However, the problem is that we have no way to discover that the encompassing is the complete cause of the precept. It was thoroughly discussed in chapter 16 that canons of precepts cannot be captured by intellects and the only way to know them is to hear from the person appointed by the Almighty to deliver precepts to people. The only intellectual way to canons of precepts is intellectual implication, and juristic analogy makes no intellectual implication as to the principle and the subordinate.

Definite Proofs Proving Authority of Qiyās

Followers of qiyās have argued the Book, Sunna, consensus, and the intellect for proving authority of qiyās. However, all such proofs are nullified even by some Sunnī scholars, such as Ibn Ĥazm in his book Ibţāl al-Qiyās. Since dealing with such proofs and their nullification is beyond the level of an introductory work on the one hand and Shiite position on qiyās will be clarified in the coming discussion on the other, we will not deal with them.

Shiite Position on Qiyās

Following Ahl al-Bayt, Shī‘a scholars have absolutely denied authority of qiyās, for it provokes nothing but conjecture (which, according to the Qur’ān (10: 36), avails naught against truth) on the one hand and no acceptable, definite proof is argued to support it on the other. One ĥadīth will suffice to present Shiite position on qiyās:

Abān b. Taghlib narrates that he asked Imām Dja‘far al-Sādiq (the sixth Imām), “What do you say on compensation of a woman’s finger cut by a man?”

Imām replied, “Ten camels.”

I asked, “Two fingers?”

Imām replied, “Twenty.”

I asked, “Three?”

Imām replied, “Thirty.”

I asked, “Four?”

Imām replied, “Twenty.”

Being astonished, I asked, “A man cuts three fingers of a woman and gives thirty camels but cuts four fingers and gives twenty?! We heard this when we were in Irāq and we used to say one who said this was Satan!”

Imām replied, “Calm down Abān! This is the holy Prophet’s judgment that woman equals man up to the third of compensation, but when it comes to the third hers becomes half. O Abān, you are arguing qiyās, while arguing qiyās against Sunna obliterates the latter.”(al-Kulainī, 7:300)