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CHAPTER 21: EQUILIBRIUM AND PREFRENCES ( AL-TA‘ĀDUL WA’L TARĀDJĪĤ )

This chapter deals with the question of contradiction of proofs. By equilibrium in the title is meant that two proofs are equal in whatsoever necessitating preference of one to another, and by preferences is meant whatsoever necessitating preference of one to another where they are not equal - by infinitive being meant subject in the latter, i.e., preferrer.

Since incompatibility of proofs is of various kinds, we have to discuss them separately.

Contradiction (al-Ta‘āruđ)

Contradiction between two proofs occurs where either of them nullifies and repudiates the other. Such repudiation is either in all denotations or some of them, in such a way that assumption of subsistence of authority of either of them along with that of the other is impossible and one cannot act in accordance with both of them.

Conditions of Contradiction

Contradiction of proofs occurs only where the following conditions exist:

1. Neither of two proofs being definite; for should one of them be definite untruth of the other would be revealed, and it is obviously clear that untrue cannot contradict true. As for both of them being definite, it is absolutely impossible.

2. Actual conjecture not being considered in the authority of both, since actualization of actual conjecture as to two contradictory proofs is also impossible. Of course, actual conjecture may be taken into consideration particularly in one of them.

3. Denotations of two proofs contradicting one another, even though in parallel and in some aspects, so that mutual repudiation may occur. The criterion is that they would result in what cannot religiously be made and is impossible in the actuality, even though such impossibility being caused by something outside of their very denotations; as is the case with contradiction of proofs of obligation of Friday prayers and that of obligation of żuhr prayers on Friday, since there is no contradiction between those two proofs per se inasmuch as conjunction of obligation of two prayers in a specific time is not impossible, but as it is known through another proof that only one prayers is obligatory at a given time they repudiate one another.

4. Either of two proofs possessing conditions of authority, in the sense that either of them is an authoritative proof whose following is mandatory if there appears no contradictory proof - though one unspecified proof would become unauthorized as soon as contradiction occurs.

5. Relation of two proofs not being that of interference, as will be explained later.

6. Relation of two proofs not being that of sovereignty, as will be explained later.

7. Relation of two proofs not being that of entry, as will be explained later.

Primary Principle as to Contradictory Proofs

The primary principle as to contradictory proofs is mutual falling (al-tasāquţ), i.e., neither of two proofs may be treated as an authoritative proof - though the secondary principle is option, as will be explained later. For contradiction causes mutual repudiation and leads to non-actuality of one unspecified proof, i.e., either of them becoming obstacle to actuality of the other; hence, neither of them will possess constituents of actual authority so that it may make the actuality incontrovertible and mandatory. That is why they both become unauthorized. However, should one of them be endowed with a preferrer, as will be explained later, it is that one which must be taken.

Secondary Principle as to Contradictory Proofs

Although the primary principle as to the contradictory proofs is mutual falling, there are so many ĥadīths revealing another principle in this connection. Shiite scholars, however, disagree on what is inferred from such ĥadīths and hold three opinions:

1. Option as to taking either of them. This is the celebrated opinion, and even allegedly a matter of consensus.

2. To cease and follow the way of precaution.

3. Obligation of taking the one which accords with the precaution, and if neither of them is so one will have the option to take either of them.

As for the option, it should be noted that it is a primary and not a continuous one, in the sense that one is merely allowed to choose one of the two contradictory ĥadīths at the beginning, but one should follow it afterwards and has no option any more.

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

By gathering is meant taking two proofs altogether. It is an intellectual judgment that taking two seemingly contradictory proofs altogether is more plausible than leaving either of them.This judgment is due 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, as was mentioned earlier. 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 proofs is no longer authoritative proof?

However, it should 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.

Preferrers

According to ĥadīths, if one of the two contradictory proofs is endowed with a preferrer, it should definitely be taken; but what the preferrers are is a matter of dispute. That dispute is beyond the level of an introductory work; hence, we merely mention that preferrers include such affairs as being in accordance with celebrity, conforming to the holy Qur’ān, not being uttered due to dissimulation, positive qualities of transmitters, and the like.

Interference (al-Tazāĥum)

What differentiates between contradiction and interference is that in the former the two proofs repudiate one another in the position of lawgiving while in the latter they are not so and it is the duty-bound who cannot take both of them in the position of obedience, such as the case where someone is going to be drowned and the only way to save him is an expropriated land. Here, there is no contradiction between “Do not expropriate” and “Save one who is going to be drowned” in the position of lawgiving at all. However, the duty-bound cannot take both of them in the position of obedience; he should eschew either the command or the prohibition.

The intellectual judgment in such cases is option: since taking both proofs is not possible, eschewing both of them is unlawful, there is no preferrer in this connection, and preferring without any preference is impossible, there remains no way but to leave the way of obedience in hands of the duty-bound inasmuch as subsistence of actual burden in either of them is impossible on the one hand and nothing exists to cause removal of burden in both of them on the other.

Since this judgment is among independent intellectual judgments, it reveals agreement of the divine lawgiver in this connection.

The important point, however, is to find out what the preferrers as to the interference are. It is obviously clear that preferrers should refer to the importance of one of the two proofs in the view of divine lawgiver: what is more important in His view is the one which should be given priority. But how can one find which of the two proofs is more important? Here, we mention some criteria for that:

1. Where one of the proofs has no substitutes while the other has some. In case of interference, what has no substitute is doubtlessly more important than the one having some; for the divine lawgiver has permitted to eschew the one with substitute and observe its substitute in case of compulsion while He has not permitted that as to the one without substitute. Hence, to give the one with substitute priority over the one without substitute causes elimination of the latter while to give the latter priority over the former leads to taking both burdens altogether in the position of obedience.

2. Where one of the proofs is constricted or urgent while the other is not so, such as purification of the polluted mosque (which is urgent) and performing prayers while there is still time. It is obviously clear, as was the case with the previous state, that giving the constricted or urgent duty priority over the other leads to taking both burdens altogether in the position of obedience while giving the latter, which has a vertical substitute, priority over the former causes elimination of the former.

3. Where one of the proofs has a specific time while the other is not so while both of them are constricted, such as performing daily prayers in the last part of their time and performing prayers of eclipse also in the last part of its time. Since daily prayers are of specified time in their very law-making, they are to be given priority over prayers of eclipse - which is not of specified time in its very law-making and has accidentally encountered shortage of time.

4. Where one of the proofs should be given priority due to its importance being obviously known in Islam, such as what concerns people’s rights especially their blood, and what is a pillar (rukn) in an act of worship.

Sovereignty (al-Ĥukūma) and Entry (al-Wurūd)

By sovereignty is meant a case where one of the two proofs is supposed to be 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. (Examples will be given where differences are expounded.)

“Entry” is used for a case where something is not included in something else - in a real manner, but through depiction of the divine lawgiver and not existentially - like the relation between authoritative conjectural proof (amāra) and such intellectual practical principles as clearance and option. As you remember, the object of intellectual principle of clearance is “lack of depiction,”

while the proof which makes the conjectural proof authoritative treats it as depiction - through declaration of the divine lawgiver - and thereby the object of intellectual principle of clearance is removed by such divine declaration. Also, the object of practical principle of option is perplexity, while the authoritative conjectural proof, because of the proof which has made it authoritative, makes one part preferable and thereby removes perplexity.

Thus, the difference between sovereignty and entry is that in the latter one proof really removes the object of the other, though through divine declaration, while in the former no proof removes the other’s denotation in a real manner; the removal is figurative and because of treating what is denoted by the divine declaration as an existent affair.

In order to make differences of four apparently similar expressions of alĥukūma, al-wurūd, al-takhşīş, and al-takhaşşuş, let us take one sample of the command “Revere Muslim scholars” and the prohibition “Do not revere impious Muslim scholars” in some different ways:

Should a certain Zayd not be a Muslim scholar, Zayd would obviously not be supposed to be revered. This is takhaşşuş (non-inclusion), since Zayd is really and existentially not included in the object.

Should that Zayd be a Muslim scholar but an impious one, he would be supposed to be revered if there were no prohibitions, since he is included in Muslim scholars. However, taking both the command and the prohibition necessitates that he should not be revered, for he is impious. This is takhşīş (restriction), which restricts revering to the pious Muslim scholars.

Thus, takhaşşuş is non-inclusion in the object while takhşīş is expelling from the judgment.

Now, suppose that a certain Bakr is a lay but pious man. If a predicative sentence such as “Lay but pious people are scholars” is declared, Bakr is included in the command of revering scholars and should be revered while he is not a scholar. This is ĥukūma. If a predicative sentence such as “An impious person is not a scholar” is declared, that Zayd who was an impious scholar is removed from the command of revering scholars and should not be revered while he is a scholar. This is another kind of ĥukūma. Thus, 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.

Part IV: The Practical Principles

Introduction

Doubtless every follower of the religion knows, in summary fashion, that there are some divine obligatory precepts, whether compulsory or unlawful, that all duty-bounds, whether knowledgeable or ignorant, must observe. Such knowledge in summary fashion makes actual, obligatory duties incontrovertible; and since the intellect necessitates clarification of one’s obligation it becomes obligatory for duty-bounds to struggle for seeking knowledge of such duties through a reliable way whose following should make them certain of clearance from liability. That is why we believe in the obligation of knowledge-seeking in the one hand and of the quest for proofs of such duties on the other.

However, knowledge-seeking does not lead to precept finding in all probable cases; that is why the duty-bound may sometimes doubt what his duty is and wonder what to do. The divine lawgiver has taken such cases into consideration and made some practical duties for him in order to refer to them when necessary and act in accordance with them to become certain that he will not be punished in the hereafter because of negligence in performing his duties.

Uşūlīs have realized that such duties, which are general and not peculiar to certain parts of jurisprudence, are of four kinds: the principle of clearance from liability (aşāla al-barā’a), the principle of precaution or liability (aşāla aliĥtiyāţ or ishtighāl), the principle of option (aşāla al-takhyīr), and the principle of continuity of the previous state (aşāla al-istişĥāb). That is realized because doubt is generally of two kinds:

1. The doubtful has a previous state while that state is taken into consideration by the divine lawgiver; this is the position of principle of continuity of the previous state, 2. The doubtful does not have a previous state or that state is not taken into consideration by the divine lawgiver, and this is, in turn, of three kinds:

2.1. The duty is absolutely unknown, i.e., it is not known even generically; this is the position of the principle of clearance from liability, 2.2. The duty is known in summary fashion while precaution is possible; this is the position of principle of precaution or liability, and 2.3. The duty is known in summary fashion while precaution is not possible; and this is the position of principle of option.

Before dealing with any of those principles in detail, we have to mention some general points as to the practical principles:

1. By doubt is meant both real doubt, i.e., a case wherein both sides are equal, and the invalid conjecture; for the latter is treated as the former. In fact, the latter is really a kind of the former, for perplexity of the duty-bound will not be removed by following it and he remains doubtful whether or not he has cleared his obligation.

2. To doubt something with regard to its precepts is of two kinds:

2.1. The doubt is an object of the actual precept, such as doubting rak‘as of the prayers, for it sometimes causes change of the real precept into separate rak‘as.

2.2. The doubt is an object of apparent precept. It is this kind that is the matter of discussion here.

3. It should be emphasized that referring to practical principles is allowed only when the jurist has quested for the authorized conjectural proof of the precept which is the matter of dubiety and despaired of finding it. Thus, there would be no room for exercising practical proofs where the quest is possible and existence of an authorized conjectural proof is probable. The quest and despair in this connection is a matter of must for jurists, for knowing and learning precepts are obligatory. That is why the jurist would not be excused should he oppose an actual duty by exercising a practical principle, especially that of clearance.

4. It has been customary to open this part by discussing the principle of clearance - because, perhaps, it has been the major dispute between Uşūlīs and Akhbārīs. Here, we follow the same pattern.

CHAPTER 22: THE PRINCIPLE OF CLEARANCE (AŞĀLA AL-BARĀ’A)

It should preliminarily be noted that the doubt as to its object, i.e., the doubtful, is of two kinds: the doubtful is a universal precept, such as doubting whether smoking is unlawful or it nullifies fasting, which is called “the dubiety concerning the precept (al-shubha al-ĥukmiyya),” and the doubtful is an objective affair, such as purity of certain water or whether a certain liquid is wine or vinegar, which is called “the dubiety concerning the object (al-shubha al-mawđū‘iyya).” Since on the one hand the former may be caused by “lack of proof,” “ambiguity of proof,” or “contradiction of proofs” and on the other hand the dubiety in both of them is either concerning obligation or unlawfulness, we will have eight separate topics in this connection. However, since the discussion on the dubiety as to obligation is secondary to that as to unlawfulness without any differences, we will deal with the problem in question in the five following discourses: (1) the dubiety concerning the precept as to unlawfulness because of lack of proof, (2) the dubiety concerning the precept as to unlawfulness because of ambiguity of proof, (3) the dubiety concerning the precept as to unlawfulness because of contradiction of proofs, (4) the dubiety concerning the object as to unlawfulness, and (5) the dubiety concerning the precept as to obligation because of lack of proof, because of ambiguity of proof, because of contradiction of proofs, and concerning the object.

1. The Dubiety concerning the Precept as to Unlawfulness Because of Lack of the Proof

Generally speaking, there are two opinions in this connection: non-obligation of precaution by eschewing the act, and obligation of precaution by eschewing the act; the former being declared by Uşūlīs and the latter by Akhbārīs. In order to prove their opinions, Uşūlīs have argued the four-fold proofs, i.e., the Book, Sunna, consensus, and intellect first and nullified Akhbārīs’ proofs secondly.

1.1. Uşūlīs’ Proofs of Clearance

1.1.1. The Book

1.1.1.1. The verse 7 of sūra 65: “God charges no soul (with a burden) save with what He has given him.” To argue this, it is asserted that by “what” is meant the burden, and to give something is due to the thing given. To give a burden is to depict it; hence, as clearly emphasized in the verse, God will charge no soul with a burden which He has not depicted.

To that argumentation, it is replied that by “what” two other meanings, i.e., “possession” and “the sheer doing or abandoning something,” may be meant as well, and this prevents from predicating “what” upon the burden and arguing the verse for the clearance. Should the first be meant - and it is supported by contextual evidence, which is the previous phrase of the verse: “Let the man of plenty expend out of his plenty; as for him whose provision is stinted to him, let him expend of what God has given him”

- the phrase would mean that God charges no soul with the burden of expending money save the possession He has given him. Should the second be meant, the phrase would mean that God charges no soul save to its capacity (as mentioned in some other verses such as 2: 286). Any attempt for gathering those three meanings in one word would be in vain, for there is no encompassing word to cover all of them. Furthermore, consideration of burden as the meaning of “what” will not solve the problem; as depiction is attributed to God, it is apparent in depicting through usual means, i.e., revelation and sending prophets - something happened. This that some precepts are not delivered to us because of evil-doing of some unrighteous people in the past does not mean lack of depiction by the Almighty.

1.1.1.2. The verse 15 of sūra 17: “We have never been to chastise, until We send forth a Messenger.” To argue this, it is asserted that to send a messenger is an allusion to depicting precepts to duty-bounds. Thus, God will not punish duty-bounds because of opposing unknown burdens before they are depicted to them - and this is obviously “clearance.”

To that argumentation, it is replied that the phrase explicitly conveys negation of this-worldly chastisements of previous peoples and not chastisement in the hereafter which is the matter of dispute here. Thus, there is no such denotation in the verse in question.

CONCLUSION. Although some other verses are argued in this connection, none of them can prove clearance - as admitted by men of research among Uşūlīs and shown in the two examples mentioned above.

1.1.2. Sunna

There are some ten ĥadīths argued in this connection. However, we discuss only one of them known as the prophetic ĥadīth of Removal (al-Raf‘):

“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.”

The preliminary discussion. To argue this ĥadīth for the clearance, it is usually asserted that (a) removal is not used in its literal sense in the ĥadīth, for those affairs do exist among Muslims, (b) in order for the speech not to be a lie we should consider something as omitted - as necessitated by the denotation of necessitation, and (c) that thing could be (c.1.) all effects in all nine phrases, (c.2.) the apparent effect in each phrase, or (c.3.) reproach in all nine phrases. Then, it is usually discussed at length which of the three probabilities mentioned above should be adopted.

On the other hand, some Uşūlīs have argued that removal in the ĥadīth should mean repelling, either figuratively, or literally - since removal, at the plane of its occurrence, is also literally repelling, for it repels efficacy of origin of something as to subsistence of that thing in the moment subsequent to its origination.

However, neither of those two argumentations is sound. The first is not so because one is allowed to refer to the denotation of necessitation only when such thing is necessary, while it will be clarified that the removal is used in its literal sense in the ĥadīth without occurrence of any lie. As for the second, its annulment will be known through consideration of the difference between removal and repelling.

In order to approach the ĥadīth in an appropriate way, we should consider the difference between removal and repelling first. Doubtless, removal occurs as to something which exists, that is why assumption of existence of the removed thing in an earlier time or plane is necessary - the removed thing exits even though the removal has not occurred yet - while in the literal usage of repelling nothing is considered but its being subsequent to the existence of origin of something, for repelling is preventing from efficacy of origin of something as to its actualization. Thus, both removal and repelling are supposed to be considered only when existence of origin of something is already assumed, but they differ from one another as to need for assumption of prior existence of the effect. In the former, it is assumed that the origin has affected that thing in an earlier time or plane, while what is considered in the latter is preventing from efficacy of the origin in the same time or plane. Of course, the actual existence of the removed thing is not necessary in veraciousness of literal usage of removal; rather, its allegedly existence, even though by consideration of existence of its origin, is sufficient, for the wise consider existence of origin of something as existence of that thing and treat it as if it exists.

It becomes clear, then, that there is no problem with predicating the removal in the ĥadīth upon its literal meaning in all nine affairs, since the sheer consideration of existence of something prior to the removal - when its origin does exist - is sufficient for veraciousness of usage of removal. Thus, removal in the ĥadīth means that canons (milākāt al-aĥkām), in spite of existence of their origins, are repelled as to efficacy in making such precepts for such affairs, because of grace-bestowing upon Muslims. However, repelling as to efficacy in making precepts differs with regard to the nine-fold affairs, since (a) in “taking as a bad omen, jealousy, and thinking of createdness [of the Almighty]” it is as to precept making, (b) in “error, forgetfulness, what they have done under duress, what they cannot endure, and what they have done under compulsion” it is as to inclusion of them in generality and absoluteness of precepts (whose result would be peculiarity of precepts to other than such things), and (c) in “what they do not know” is as to making the precaution obligatory despite the fact that canons necessitate such obligation, i.e., canons necessitate making precaution with regard to probable duties obligatory, but ĥadīth of removal declares that origins of precepts are repelled as to efficacy in making the precaution obligatory - because of grace-bestowing upon Muslims.

It should be noted in this connection that:

1. Effects removed by ĥadīth of removal should be qualified by neither “existence” nor “non-existence” of those affairs; for should they be qualified by existence of such affairs (as in the obligation of penance in “homicide in error”) the effect cannot be removed in case of occurrence of that affair, for it causes self-contradiction (what is considered the object of precept is not the object, and this is absurd) - the object of an effect requires existence of that effect and cannot cause its non-existence - and should they be qualified by non-existence of such affairs their removal would be due to removal of the object and not because of the ĥadīth (as in retaliation in case of “intentional homicide” which is qualified by non-existence of error; if homicide is caused by error the object of retaliation, i.e., intention and non-existence of error, is automatically removed).

2. As ĥadīth of removal declares God’s grace-bestowing upon Muslims, any affair whose removal contradicts grace-bestowing is not removed. For instance, although a “compelling contract” is done under compulsion, it is valid, for one who sells his property under compulsion is in an urgent need, and if his contract is treated as null and void his situation becomes worse -

something contrary to grace-bestowing.

3. What is removed in “jealousy” and “thinking of createdness [of the Almighty] so long as one has not uttered it” is their unlawfulness, which would have been made should grace-bestowing not be declared; and what is removed in “taking as a bad omen” is unlawfulness of quitting something because of a bad omen: although people should not quit anything because of a bad omen, ĥadīth of removal declares that they have not committed a sin if they do so. By removal in “error, forgetfulness, what they have done under duress, and what they have done under compulsion” is meant that whatsoever done in such cases has no religious effect and is considered null.

The primary discussion: how ĥadīth of removal denotes clearance. There is no dispute that the ĥadīth denotes clearance with regard to the dubiety concerning the object. Therefore, should one doubt whether certain water is pure, one would treat that water as pure, and should one doubt whether certain liquid is wine or vinegar, one would be allowed to drink it.

The matter of dispute is whether the ĥadīth includes the dubiety concerning the precept as well so that when one lacks knowledge of unlawfulness of certain thing, because it has no precedent in early Islam and there is no proof in favor of it in the sources, one is allowed to do it according to the principle of clearance.

Those who oppose such inclusion argue that on the one hand contextual coherence necessitates that by “what they do not know” should be meant the doubtful object and not precept, since by the relative pronoun in “what they have done under duress,” “what they cannot endure,” and “what they have done under compulsion,” is meant the act that they have done under duress, they cannot endure, or they have done under compulsion; hence, by the relative pronoun in “what they do not know” should also be meant an act which is doubtful, such as a specific drinking which is not known whether it is wine or vinegar drinking. On the other hand, there is no inclusive affair capable of encompassing both the dubiety concerning the precept and the dubiety concerning the object - so that we may consider that by the relative pronoun is meant that inclusive affair - for what is removed in the dubiety concerning the precept is the very object of ignorance, i.e., the unknown actual precept, and attribution of removal to it is of attribution of something to what it is for, while the object of ignorance in the dubiety concerning the object is primarily the external thing and only secondarily the religious precept, and since the external thing is not removable by itself attribution of removal to it would be of attribution of something to other than what it is for - and these two cannot be both used in one usage and one attribution. Now, which of them should be preferred? The answer is “the doubtful object,” for, although the attribution is apparent in being directed to what it is for and this gives priority to dubieties concerning precepts, contextual coherence, which is a stronger appearance than that appearance, necessitates peculiarity of the relative pronoun to dubieties concerning objects.

To the first argumentation, Uşūlīs have replied that there is no such contextual coherence in the ĥadīth, for “to take as a bad omen, jealousy, and to think of createdness [of the Almighty]” are included in it while it is obviously clear that by them the act is not meant. As for the second argumentation, it can be said that by the relative pronoun in “what they do not know” is meant “the religious unknown precept in an absolute sense” which includes both dubieties concerning precepts and objects, since there is no difference between those two dubieties but that the origin of doubt in dubieties concerning precepts is lack or ambiguity of proof while in dubieties concerning objects it is external things, and difference in the origin of doubt makes no difference in attribution of removal to the relative pronoun.

Thus, one can argue the ĥadīth of removal in order to prove clearance in cases of probability of unlawfulness against those who believe that in such cases the duty-bound is supposed to follow the way of precaution. However, it should be noted that the principle of clearance can be exercised only after the quest for all probable proofs and despair of finding any; no one is allowed to act in accordance with that principle before the quest and despair.

1.1.3. Consensus

Although some Uşūlīs have attempted to present some ways to prove that there is a consensus among Shī‘a scholars on the clearance, all such attempts are in vain, for Akhbārīs are obviously against that claim and emphatically insist that duty-bounds must follow the way of precaution and avoid doing anything whose unlawfulness is probable.

1.1.4. The Intellect

The intellect undoubtedly judges that punishment without depiction is reprehensible. In other words, it judges independently, without any need to religious judgments, that it is reprehensible to reproach and punish someone without there being a depiction available to him - of course when he has made a thorough quest for probable existing proofs but has found nothing.

This intellectual rule, which cannot be a matter of dispute and is accepted by Akhbārīs as well, is the major premise of a syllogism which proves clearance:

there is no depiction with regard to the dubiety concerning the precept as to unlawfulness where there is no proof (the minor premise), punishment without depiction is reprehensible (the major premise), then, there would be no punishment should one not avoid such dubiety. As mentioned above, the major premise cannot be a matter of dispute; it is the minor premise which is disputed: Akhbārīs claim that proofs proving obligation of precaution are to be considered as depiction. That is why Uşūlīs should nullify proofs argued by Akhbārīs as to obligation of precaution so that they can argue this intellectual proof.

On the other hand, there is another intellectual proof in this connection argued by Akhbārīs for proving obligation of precaution: obligation of repelling the probable harm. According to this rule, there is a probable harm in doing the dubiety concerning the precept as to unlawfulness where there exits no proof (the minor premise), repelling the probable harm is obligatory (the major premise), then, to avoid the dubiety concerning the precept as to unlawfulness in case of lack of proof is obligatory.

Since these two intellectual proofs seem to contradict each other, we have to find out which of them should be given priority over the other. It should be noted that the subject matter of the former is “lack of depiction” and that of the latter is “the probable harm.”

In order to prove intellectual obligation of precaution, it is said that the relation between those two rules is entry on the part of latter, since it is a depiction for the necessity of precaution. This argumentation, however, is not sound; for by the harm is meant either:

a. Other-worldly harm, i.e., the rule declares that probability of unlawfulness implicates harm and punishment in the hereafter; then, there is no room for the minor premise of the syllogism - though its major premise is all right. The major premise is all right because repelling otherworldly probable harm is intellectually obligatory, since it is a probability of eternal misery and unblessedness. The minor premise has no room because the rule has no subject matter. As mentioned earlier, the subject matter of this rule is probable - here, the otherworldly - harm, and that harm is negated by the intellectual rule of reprehensibility of punishment without depiction. It is concluded, then, that the relation between those two rules is entry on the part of the former and not the latter.

Should one attempt to nullify this argumentation and assert that the rule of obligation of repelling the probable harm brings about a probability of harm and makes a minor premise for it, we would reply that this is not acceptable, for a rule cannot make a subject matter for itself. This argumentation is like the following reasoning: “This is wine.” “Why?” “Because wine is unlawful!”

Or :

b. This-worldly harm, i.e., the rule declares that probability of unlawfulness implicates this-worldly harm; then, there is no room for neither the minor nor the major premise of the syllogism: minor premise, because the criteria for precepts are not always harm, but rather actual good and evil which are not of kind of harm; and major premise, because the intellect has no judgment that any this-worldly harm should be repelled, but rather there are some definitive, let alone probable, harms which are always undertaken by the wise for some this-worldly motives.

1.2. Akhbārīs’ Proofs of Precaution

1.2.1. The Book

1.2.1.1. The verse 102 of sūra 3:

“… Fear God as He should be feared.”

It is inferred from this verse that to fear God as He should be feared is obligatory, for God has commanded that and the command is apparent in the obligation. To fear God as He should be feared with regard to the case in question means to avoid whatsoever whose unlawfulness is probable, and this is the way of precaution.

Uşūlīs have said that to fear God means to avoid committing whatsoever God has forbidden and eschewing whatsoever He has commanded. But doing whatsoever whose unlawfulness is probable without there being a single proof of its unlawfulness on the one hand and permission of both the intellect and the divine lawgiver to do it on the other does not contradict God-fearing.

It should be noted, however, that Akhbārīs’ argument is focused on fearing God as He should be feared and not fearing Him in an absolute sense.

1.2.1.2. The verse 36 of sūra 17:

“And do not pursue that you have no knowledge of.”

To argue this verse, it is said that to pursue what one has no knowledge of is unlawful, for Gad has prohibited from that and prohibition is apparent in unlawfulness. To do what whose unlawfulness is probable and not to avoid dubieties is to pursue what one has no knowledge of, and this is forbidden and unlawful.

Uşūlīs have replied that to do what one has both intellectual and religious proofs for its permissibility is not to pursue what one has no knowledge of -

which is forbidden.

There are some other verses argued as to obligation of precaution, but all such argumentations are nullified by Uşūlīs.

1.2.2. Sunna

There are a huge number of ĥadīths argued by Akhbārīs as to obligation of precaution. However, they can all be classified into four categories only two of which being discussed here:

1.2.2.1. What denotes unlawfulness of issuing juristic decisions with no knowledge, such as, “it is upon duty-bounds to say what they know and to stop where they have no knowledge of,” (al-Kulainī, 1:43) and the like.

To that, Uşūlīs have replied that to do what one has both intellectual and religious proofs for its permissibility is not to issue juristic decision without knowledge.

1.2.2.2. What denotes that to stop where there is dubiety is better than to sink into perishment, such as, “stop where there is dubiety, for stopping where there is dubiety is better than sinking into perishment,”(al-Kulainī, 1: 50) and the like, in which the divine lawgiver has commanded duty-bounds to stop in such cases and follow the way of precaution.

Uşūlīs have said that such ĥadīths should be predicated upon dubieties accompanied by summary-fashioned knowledge, for their appearances convey that perishment, which is punishment, has already existed in a plane prior to the command to stop. The reason is that they have treated sinking into the perishment as the cause for commanding to stop; hence, the doubted duty must have been incontrovertible in the plane prior to the command to stop so that the argumentation can be plausible and sinking into dubiety can be considered sinking into perishment and punishment. Thus, dubieties in such ĥadīths must be those accompanied by summary-fashioned knowledge, or primary dubieties before the quest for probable proofs.

1.2.3. The Intellect

Two intellectual proofs are attributed to Akhbārīs for obligation of precaution:

1.2.3.1. Intellectual rule of obligation of repelling the probable harm. Uşūlīs’ reply to this argument was discussed at length earlier.

1.2.3.2. Since we have knowledge in summary fashion that there are so many unlawful affairs among dubieties on the one hand and summaryfashioned knowledge makes duties incontrovertible on the other, to follow the way of precaution through avoiding all dubieties becomes obligatory; for it is the intellect’s judgment that definite liability necessitates definite clearance.

To that argument, it is replied that such summary-fashioned knowledge is reduced to the detailed knowledge of unlawfulness as to what is proved by sources and primary doubt with regard to other cases - the latter being an instance of principality of clearance, as proved earlier.

2. The Dubiety concerning the Precept as to Unlawfulness Because of Ambiguity of the Proof

Since an ambiguous proof has no denotation and should be treated as nonexistent on the one hand and proofs presented earlier have no peculiarity to the case of lack of proof on the other, clearance is proved for this case as well.

3. The Dubiety concerning the Precept as to Unlawfulness Because of Contradiction of Proofs

The discussion here is pursuant to what was discussed in chapter 21 where criteria for preferring one proof to another were explained in detail. In short, should one proof be preferable, it would be taken into consideration and the other would be left aside the dubiety being thereby dissolved. Otherwise, one would have the right to choose any of proofs, as was explained there.

4. The Dubiety concerning the Object as to Unlawfulness

All proofs presented as to the dubiety concerning the precept serve here as well and prove clearance with regard to objects. Furthermore, there is a consensus among both Akhbārīs and Uşūlīs on the clearance here.

5. The Dubiety as to Obligation concerning the Precept Because of Lack of the Proof, Because of Ambiguity of the Proof, Because of Contradiction of Proofs, and concerning the Object

Since proofs and criteria are the same in dubieties as to both unlawfulness and obligation, clearance with regard to all these four cases is definitely proved.

Furthermore, there is again a consensus among both Akhbārīs and Uşūlīs on the clearance in such cases.