INTRODUCTORY DISCUSSIONS OF THE THIRD PART
The subject matter of this part, in which objects and predicates of the former are discussed, is “whatever capable of being claimed to prove a juristic precept and to be an authoritative proof with regard to that precept.” Therefore, if we can prove in this part by a certain, definite proof that a way is an authoritative proof (and we will prove later that such proof should be certain, definite and a conjectural proof will absolutely not be sufficient), we can take it and refer to it in order to prove juristic precepts; otherwise, we should reject and leave it. In short, the subject matter of this part is the essence of the proof per se and not the proof as it is proof - as some have claimed. As for its predicates and objects, they are authority of that certain thing which is either proved or negated.
According to what we said, discussions of this part include whatsoever which is said to be an authoritative proof. Thus, in addition to principal discussions of the Book, Sunna, consensus, and intellect, it includes discussing authority of report of single transmitter, appearances, celebrity, narrated consensus, analogy (qiyās), and the like. It also includes discussion of equilibrium and preferences (al-ta‘ādul wa’l tarādjīĥ) in which determination of what is authoritative between two contradictory proofs is dealt with.
The Meaning of al-Ĥudjdja
Ĥudjdja literarily means whatsoever capable of being used as an argument against someone else through which one can overcome one’s opponent in a dispute. Overcoming someone else 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 the proof 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, as will be explained, 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).
Amāra and al-Żann al-Mu‘tabar
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 which is 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 its cause 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 amāra is made valid and an authoritative proof by the divine lawgiver because of that, it will be an authoritative proof of all people even though it may not cause an actual conjecture for some of them. Hence, if an actual conjecture is not actualized by amāra for someone he should also follow it.
However, it should be noted that we would use all such terms as “the particular conjecture (al-żann al-khāşş),” “the valid conjecture,” “the authoritative conjecture (al-żann al-ĥudjdja),” and the like while we intend their cause, i.e., amāra. It should also be borne in mind that we would use the English expression “the authorized conjectural proof” precisely for amāra in this book.
Amāra and the Practical Principle
The term amāra does not include the 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 of the actual juristic precept. As mentioned earlier in the definition of ĥudjdja, 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.
To call practical principle ĥudjdja sometimes does not contradict that, for it is ĥudjdja in its literal sense, i.e., it would be an excuser for the duty-bound should he act in accordance with it and miss the actuality; as the Lord would punish the duty-bound should he not act in accordance with it and thereby miss the actuality.
The Criterion for Proving Authority of Amāra
Doubtless conjecture as it is conjecture cannot be the criterion for authority of amāra and one cannot rely on it for proving the actuality, for the Almighty has said, “Surely conjecture avails naught against truth” (10: 36), has blamed those who follow conjecture as it is conjecture in some verses including (6: 116):
“They follow only conjecture, and they merely surmise,” and has said, “Say:
Has God given you leave or do you forge against God?” (10: 59) As can be seen in the last verse, God has declared what He has given leave as the opposite of forging against Him. Thus, what He has not given leave must be forging against him; and should one attribute a precept to God without His leave, it would definitely be forging against Him, blameful, and unlawful - as the verse declares. To act in accordance with conjecture, of course, and to believe that it is from God and proves His precepts is to attribute the precept to Him without His leave and hence falls into the category of forging against Him - which is unlawful. Thus, the primary principle necessitates that to act in accordance with conjecture as it is conjecture and to take it into consideration in order to prove divine precepts is not allowed - whatever its cause may be - for it avails naught against truth; hence, it is a null surmise and an unlawful forging.
However, should it be proved by a definite, authoritative proof that a particular conjecture caused by a specific cause is made by the divine lawgiver a way to His precepts, is considered an authoritative proof with regard to them, and is accepted as a sign for them, that conjecture would be out of scope of that primary principle; for it is not a surmise and forging against God. In fact, consideration of a valid conjecture which is definitely proved to be an authoritative proof is not consideration of conjecture as it is conjecture - though it is taken into consideration by the divine lawgiver because it is conjecture - but rather is consideration of certitude - that certitude which has made such cause of conjecture valid - and it will be explained later that certitude is essentially an authoritative proof in need of no authority maker.
That is why valid conjectures are called ‘ilmī, i.e., attributed to knowledge, for their authority is proved by knowledge and certitude.
Now, we can sum up that the criterion for proving authority of amāra is the knowledge and certitude established for its validity and authority. Thus, should knowledge of its authority and certainty of permission of the divine lawgiver for its consideration not be actualized, we would not be allowed to take it into consideration, even though it may cause a prevailing conjecture, for its consideration in such case would be a surmise and forging against God. That is why Uşūlīs have said that it would be sufficient for rejecting amāra to have doubt about its authority, or, to be more precise, not to have certitude for its validity; for the very lack of knowledge of that would be enough for knowledge of its non-authority, i.e., for unlawfulness of taking it into consideration and referring to it. In such cases, we are not in need of proof of its non-authority and invalidity; rather, as soon as certitude for authority of something is not actualized certitude for unlawfulness of taking it into consideration and referring to it in the position of action is actualized. Thus, certitude is taken into consideration in the object of authority of amāra.
In order to make that point clearer, let us take another way. First, conjecture as it is conjecture is not essentially an authoritative proof. This it self-evidently clear, for had conjecture been an essentially authoritative proof, prohibition of its following and consideration, even though in some cases, would not have been possible - as will be explained later - while following conjecture is doubtlessly prohibited in some Qur’ānic verses mentioned earlier. Secondly, since it is not an essentially authoritative proof, its authority should be accidental, i.e., it is taken from something else. Now, we ask of the nature of that else: if it is certitude, our claim is proved; otherwise, what is it? Nothing can be assumed but the very conjecture, for there is nothing else rather than those two whose authority can be considered. The second conjecture which proves authority of the first, however, is not an essentially authoritative proof, for there is no difference between one conjecture and another in this connection. Therefore, we ask of that second conjecture whose authority is taken from something else; what is that else? If it is certitude, our claim is proved; otherwise, it is a third conjecture.
Then we ask of that third conjecture, which needs a fourth conjecture, and this leads to infinitive regression - which is impossible. The regression will not be stopped unless the chain ends in that which is an essentially authoritative proof, and that is nothing but certitude.
In other words, since conjecture is not an essentially authoritative proof, its authority must be accidental; and every accidental must refer to something essential - the essential authoritative proof being nothing but the certitude.
Thus, it is proved that the criterion for authority of amāra is certitude, for authority of everything refers to it - whose authority is essential.
Essentiality of Authority of Certitude (Knowledge, ‘Ilm)
The meaning of authority of something being essential became clear from what we said. It means that its authority is raised from the very nature of its essence and is not taken from something else. Such thing is also not in need of any making by the divine lawgiver or any command by Him; rather, it is the intellect that commands the duty-bound to follow it. Such thing cannot be but certitude (or knowledge, i.e., that which is one hundred percent for certain) which is essentially a path to the factuality. The certitude must necessarily be followed, that necessity being an intellectual one originated by the fact that certitude is per se a path to the factuality and its reality is the very manifestation of the actuality. Thus, the essence of certitude is the very manifestation; it is not something which is endowed with manifestation. Since the certitude is essentially a path, as frequently repeated, it is neither plausible to be made a path by the divine lawgiver nor is it possible to be negated as a path; for both making and negating the essence and its requisites are impossible. Therefore, the certitude is an authoritative proof whatever its cause may be (contrary to Akhbārīs, who hold that certitude should not be followed when it is caused by intellectual preliminaries), for whomever it may be actualized (contrary to those who maintain that certitude is not valid if actualized for someone who becomes certain too much and too quickly (al-qaţţā‘)), and whatever its object of denotation may be. In all such cases, the certitude is essentially a path to the actuality, and that is why no affirmative or negative change can be made in it.
Yea, the only thing possible is to make the one who is wrongly certain realize that there is something wrong in the preliminaries of one’s certitude. In that case, one’s certitude will necessarily be changed into either possibility of or certitude in the contrary view - and there is nothing wrong with that.
The Position of Authority of Amāra
As said earlier, amāra is made an authoritative proof even in the case of possibility of acquiring knowledge, i.e., it is per se an authoritative proof whether or not the duty-bound can acquire knowledge of the actuality by referring, for instance, to the innocent-infallible Imām. Should amāra be an authoritative proof, one would be allowed to refer to it and act on its basis without referring to the innocent-infallible Imām in order to receive the actual precept. The reason why it is so will be explained in the coming discussions.
The Particular Conjecture and the Absolute Conjecture
By the particular conjecture (al-żann al-khāşş) is meant every conjecture whose authority and validity is proved by a definitive, certain proof other than “the major closure proof (dalīl al-insidād al-kabīr).” It, therefore, means amāra which is an absolutely authoritative proof even when the door of knowledge is open. It is also called the knowledge-rooted (‘ilmī) path, since, as said earlier, its authority is proved via knowledge and certainty.
By the absolute conjecture (al-żann al-muţlaq) is meant every conjecture whose authority and validity is proved by “the major closure proof.” It, therefore, means amāra which is an authoritative proof only when the door of knowledge and knowledge-rooted (‘ilmī) is closed, i.e., closure of the door to both the very knowledge of precepts and knowledge-rooted paths leading to them.
In this book we will discuss only particular conjectures, for authority of some amāras is proved for us and there remains no room for the closure of door of knowledge and knowledge-rooted. However, we will discuss preliminaries of “the major closure proof” briefly for the sake of comprehensiveness of our discussion.
Preliminaries of the Closure Proof (Dalīl al-Insidād)
The proof known as “the Closure Proof” consists of four preliminaries. Should those preliminaries be accurate, intellect would judge that the duty-bound should act on the basis of any conjecture with regard to precepts - unless a conjecture whose non-authority is definitely proved, such as analogy (qiyās).
Those four preliminaries can 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 holy Imāms’. This is the fundamental base of this proof upon which all other preliminaries are dependent.
2. It is not allowed to leave obedience of actual precepts 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” 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 actual precepts 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 should take 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 to take 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-shakk al-badwī) with regard to other cases, in which one is supposed to refer to practical principles - as will be explained in the fourth part.
Commonness of Precepts between the Knowledgeable and the Ignorant
In addition to mass transmissions of holy Imāms, there is a consensus among Shiite scholars that the divinely precepts are common between those who are knowledgeable and who are ignorant of them, i.e., the divinely precept constantly follows its subject whether or not the duty-bound knows it; the duty-bound is charged with the duty anyhow. Thus, knowledge of precepts plays no role in their realization. The only role played by knowledge with regard to the burden is incontrovertible-making of burdensome precepts, in the sense that the dutybound will not be punished because of opposing a precept except when he knows it - whether through a detailed or a summary fashioned knowledge, or an authoritative, valid proof which can replace the knowledge. Knowledge and what replaces it, therefore, is a condition for incontrovertible-making of the burden and not its complete cause - as some believe. That is why where, after the quest and despair, knowledge and what replaces it are not found, the duty-bound will not be punished because of opposing a precept; for punishing him in such case will be punishment without depiction, which is intellectually reprehensible - as will be explained in part 4.
The reason for commonness of precepts, apart from ĥadīths and consensus, is clear:
1. Should the precept not be common between the knowledgeable and the ignorant, it would be peculiar to the knowledgeable; for to treat it as being peculiar to the ignorant is clearly unacceptable.
2. If it is peculiar to the knowledgeable, it means that the precept has been made dependent upon knowledge of it.
3. However, making the precept dependent upon knowledge of it is impossible, for it necessitates self-contradiction.
4. Therefore, the precept must be common between the knowledgeable and the ignorant.
The reason why it necessitates self-contradiction is that if the precept, obligation of the prayers for instance, be dependent upon knowledge of it, it necessities, or even it is the very meaning of dependent-making, non-obligation of the prayers per se. For it is assumed that obligation is directed to the prayers “whose obligation is known” as “something whose obligation is known,” while assumption of knowledge of obligation of the prayers is impossible except when the obligation is directed to the prayers per se. Thus, that which was assumed to be directed to the prayers per se was not directed to the prayers per se, but rather to the known obligation peculiarly; and this is the self-contradiction which is obviously impossible.
In other words, to make the precept dependent upon its knowledge necessitates impossibility, which is impossibility of knowledge of the precept, and what necessitates impossibility is itself impossible; therefore, the very precept is impossible. For it is assumed that there is no precept before actualization of knowledge; then, when the duty-bound wishes to know what should he know?
Actualization of knowledge without a subject whose actualization has already been assumed is not plausible. When actualization of knowledge is impossible, actualization of a precept which is made dependent upon knowledge will be impossible too, because of impossibility of precept without subject.
Thus, to make the precept dependent upon knowledge of it is impossible; and there remains no choice but commonness of the precept between the knowledgeable and the ignorant. This means that divinely precepts are directed to duty-bounds in cases of knowledge and ignorance both, i.e., they are directed to the ignorant as well- although the ignorant will be excused, i.e., he will not be punished because of opposing the precept he is ignorant of.
Why Is Amāra an Absolutely Authoritative Proof?
As was proved, amāra is an authoritative proof even in the case of openness of door of knowledge on the one hand and precepts are common between the knowledgeable and the ignorant on the other. Consideration of those two facts causes the following complicated problem: How is it possible that the divine lawgiver may allow duty-bounds to follow the conjectural amāra while it is a subject of possibility of such errors that cause missing the actuality while to allow missing the actuality is intellectually reprehensible? For instance, if amāra denotes lawfulness of an act while it is either mandatory or unlawful in the actuality, permission for following amāra will be permission for not performing the mandatory or committing the unlawful act while the act still maintains its actual obligation or unlawfulness on the one hand and it is assumed that the duty-bound can attain the knowledge of actuality on the other.
It is this problem that made some Uşūlīs consider amāra as being a “cause” and not a “path” - the latter being the principle in this connection, as will be explained later. Should there be no way for consideration of amāra as a path, they would be right. For it is assumed that authority of amāra is definitely proved; hence, a good, which compensates for the good of the actuality in case of error of amāra, must lie in allowing duty-bounds to follow amāra so that the divine lawgiver’s leave to cause missing the actually may not be considered reprehensible - since such causing is in favor of a higher, or an equivalent, good compared to that of the actuality. Thus, an apparent precept will be made as it is the actuality: it may be identical to the actuality where amāra is a success, or disagreeing with it where amāra is a failure.
However, since that problem can be solved in accordance with the principle that amāra is a path, there remains no room for treating amāra as a cause.
The reason is that when it is assumed that there is a definite, certain proof which declares amāra an authoritative proof in such a way that one is allowed to follow it even when one can acquire the knowledge, that leave from the divine lawgiver, who knows the actuality and truths, must be due to something He knows and we do not know. That thing may be one of the two following points, and nothing else, both of which being intellectually acceptable without encountering any problem:
1. He knows that success of amāra in attaining the actuality is equivalent to, or exceeds, the knowledge attainable by duty-bounds, i.e., the divine lawgiver knows that error of the knowledge which is attainable by duty-bounds is equivalent to, or exceeds, that of an authoritative proof-made amāra.
2. He knows that not making specific amāras an authoritative proof in acquiring precepts and limiting duty-bounds to the acquisition of knowledge will cause them hardship; especially when it is considered that they constantly follow such amāras in their this-worldly affairs.
The second probability seems absolutely close to the factuality; for we have no doubt that burdening every individual with referring to the infallibleinnocent Imāms or massive transmissions for acquisition of every precept will cause them intolerable hardship, especially when it is considered that this contradicts their practical conduct with regard to this-worldly affairs. Thus, it is very likely that the divine lawgiver has allowed duty-bounds to follow specific amāras for the purpose of facilitation. It is clearly known that in Islam, which is based on the ease, the good of facilitation is among communal goods which are prior to individual goods of some duty-bounds which may sometimes be missed through following amāra.
No matter which probability is closer to the factuality, it is a matter of must that the divine lawgiver has not burdened duty-bounds strictly with regard to actual precepts in case of failure of amāra; that is, amāra is an excuser for dutybounds and they will not be punished because of opposing some precept - it is not that another secondary precept is made through amāra. That is why wherever the divine lawgiver wishes attainment of the actuality in any case, such as cases engaging blood or pudenda, He has commanded duty-bounds to follow precaution and do not content themselves with conjectures.
Amāra Being a Path (Ţarīq) or a Cause (Sabab)
By amāra being a path is meant that it is merely made to take duty-bounds to the actuality and to reveal the latter; if it is a success, the actuality will become incontrovertible, and if it is a failure, it will merely be an excuser for the dutybound in opposing the actuality. By amāra being a cause is meant that it is a cause in generating a good in its outcome which is equivalent to causing elimination of the actuality in case of failure of amāra.
The justifiable opinion is the first. As mentioned earlier, to believe in the latter is dependent upon not believing in the former; for to believe in the latter is caused by inability to justify the former - which is the principle in this connection. However, since we are able to justify the former, there will remain no room for the belief in the latter. The former being the principle in this connection means that amāra, per se, must be a sheer path to its outcome; for it is to recount, express, and reveal the actuality. Furthermore, the wise take it into consideration because it reveals the actuality - and the conduct of the wise is the primary base in the authority of amāra. Amāra being treated by the wise as a cause is nonsensical.
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Author: Alireza Hodaee
