Lesson One: Introduction
The subject under consideration here is the 'ilm, or knowledge
of the principles of jurisprudence, usul ul fiqh. The two studies
of jurisprudence and its principles are interconnected. They are interconnected
in the same way, as will become clear, as the two studies of logic and
philosophy are interconnected. The study of the principles is tantamount
to a preparation to the study of jurisprudence, and it is for this reason
that it has been named the principles of jurisprudence, for the word usul
means roots or principles.
Firstly, a short definition of these two studies must be given.
The Arabic word, fiqh essentially means understanding, profound
understanding. Our information about the affairs and proceedings of this
world can be of two types. Sometimes it is shallow, surface information,
and sometimes it is profound. An example from economic affairs will help
us. We are continually experiencing the fact that products which years
ago did not exist are now finding their way onto the market place, while
at the-same time a chain of products that were previously abundant cannot
now be found. Likewise, the prices of certain products regularly increase,
while the prices of other goods, let us suppose, is fixed.
This type of information is universally available and is shallow, surface
information. The information of some people on these matters is profound,
however, and they have journeyed from the mere experiencing of the events
to a profound understanding of the causes, meaning that they are aware
of the reason for a certain article becoming available and another article
becoming unavailable, and of the reasons for a certain product being expensive
and a different one being inexpensive. They know what causes prices to
regularly increase, and they know to what extent these causes are essential,
definite and unavoidable, and to what extent they can be checked.
When the information of a person in economic affairs is such that it
passes the level of simple experiencing and arrives at the level of discerning
the deep-rooted causes and profound currents, he can be said to be a person
having deep understanding (mutafaqqeh) in economics.
In the Holy Quran and in Traditions from the Holy Prophet and the Imams,
we have been repeatedly commanded towards profound understanding (tafaqqah)
in the religion, and from the collective content of these sources it is
to be discerned that the view of Islam is that Muslims understand Islam,
in all its aspects, profoundly and with thorough insight. Of course profound
understanding in religion, consisting of all the Islamic aspects, is a
great blessing from God. It is common to what relates to the principles
of Islamic beliefs and the Islamic world-view or sense of values, to Islamic
morals, ethics and upbringing, to all the aspects of Islamic society, to
Islamic worship, to the civil ordinances of Islam, to the particular Islamic
customs of the individual and of the society, and more. However, since
the second century of the Hejra, the word jurisprudence has become a term
for a special area of understanding amongst Muslims that can be said to
be jurisprudence in the commands of religion or jurisprudence in the deducing
of the commands of religion. In other words "precise and profound deducing
of the Islamic regulations of actions from the relevant sources".
The commands or regulations of Islam have not been explained by the
Quran or by the Prophet and the Imams in such a way that each and every
particularity has been expressly dealt with. Nor is such a thing possible,
for events and situations occur in endlessly different forms. Instead,
generalities and precepts have been laid before us in the form of a chain
of principles.
A person who wants to explain the law of a certain matter to himself
or others, must refer to the resources and authentic documents-and later
we will clarify the nature of these-and must explain his viewpoint while
bearing in mind all the different aspects of those authentic documents.
And it is this that is meant by jurisprudence being joined to precise and
profound understanding of all aspects.
The masters of jurisprudence (fuqaha) when defining jurisprudence,
use the following sentence: Jurisprudence is the study of the secondary
commands (i.e. not the principle matters of beliefs and moral perfection,
but the commands regulating actions) of the Shari'ah of Islam gained from
the detailed resources and proofs.
The Principles of Jurisprudence
For the study of jurisprudence, mastery of many other branches of learning
are necessary as a preparation, and these consist of the following:
1. Arabic: syntax, conjugation, vocabulary, semantics, oratory
as the Quran and Traditions are in Arabic, without knowing at least the
usual standard of the Arabic language and literature it is not possible
to benefit from the Quran and the Traditions.
2. Commentary upon the Holy Quran (tafsir). Taking into
consideration the fact that the jurisprudents must use the Quran as a point
of reference, some knowledge in the study of the commentaries upon the
Quran is absolutely essential.
3. Logic, called mantiq in Islam. Every branch of learning
in which reasoning is used stands in need of logic.
4. The study of the Traditions. The jurisprudent must have a
sound knowledge of the Traditions and must be able to distinguish the different
types of Traditions and they become acquainted with the language of the
Traditions as a result of their frequent application.
5. The study of the Transmitters (rijal). The study of
the Transmitters means knowing the identities and natures of those who
have transmitted the Traditions. Later it will be explained how the Traditions
existing in the sanctuary of books of Traditions cannot be accepted without
examination. The study of the Transmitters is the examining and scrutiny
of the men who make up the chains (isnad) of reporters of the Traditions.
6. The study of the Principles of Jurisprudence. The most important
branch of learning in preparation for jurisprudence is the principles of
jurisprudence, a delightful subject and one originated by Muslims.
The Principles of Jurisprudence is, in reality, the "study of the rules
to be used in deducing the Islamic laws" and it teaches us the correct
and valid way of deducing from the relevant sources in jurisprudence. In
this way, Principles, like logic, is a study of instructions, and is more
a skill than a branch of knowledge, meaning that in jurisprudence, that
which is discussed is a chain of things that must be, rather than a chain
of things which are.
Bearing in mind the fact that it is possible to refer in particular
ways to the documents or sources of jurisprudence and to be led to erroneous
deductions opposed to the real view of the Islamic Shari'ah, it is necessary
for there to be a special field of study that enables one to clearly discern
the correct and valid method of using the sources of jurisprudence as a
reference to deduce and extract from them the laws of Islam by means of
the proofs of reasoning and the proofs provided by God through the Prophet
and the Imams. The Principles of Jurisprudence is the field of study that
fulfils this purpose.
From the early days of Islam, another word that is more or less synonymous
with the word fiqh (jurisprudence) and which has been in common
use amongst Muslims is the word ijtihad. In the Muslim world today,
especially the Shi'ite world, the words faqih (jurisprudent) and
mujtahid
are synonymous with each other.
The word ijtihad is from the root juhd which means utter
striving. For this reason, a faqih is also called a mujtahid,
since he must use all his efforts in deducing Islamic laws (ahkam).
Lesson Two: The Sources of Jurisprudence
In the previous lesson we learned how the study of the principles of
jurisprudence teaches us the correct and valid instructions and methods
of deducing the laws of the Shari'ah, the divine law of Islam, from the
original sources. Now we must learn what those sources are, and how many
they are, and whether all the sects and schools of Islam have the same
views about each detail of the sources or whether they hold opposing views.
If there are differences, what are those differences? First we will discuss
the views of the Shi'ite jurisprudents on the sources of jurisprudence
and, while explaining each of the various sources, we will also discuss
the views of the 'ulema of the other Islamic sects. In the view of Shi'ites
(with the exception of a small group who are called akhbariyin,
the views of whom will later be discussed), there are four sources for
jurisprudence:
1. The Book of God, the Quran, which will from here on be referred
to in the concise term of the jurisprudents as "The Book".
2. "Sunnah", meaning the words, actions and silent assertions
(taqrir) of the Prophet and the Imams.
3. Consensus or ijma'.
4. Reasoning or 'aql.
These four sources in the terms of the jurisprudents are called the
"four proofs" or the adillat ul-arba'ah. Generally they say that
the study of jurisprudence is cen-tered around these four proofs. Now,
it is necessary for us to give an explanation of each of these four sources
and at the same time explain the views of the other Islamic sects and likewise
those of the akhbariyyin. We will begin our discussion with the
Quran.
The Quran
There is no doubt that the Holy Quran is the first source for the laws
and regulations of Islam. Of course the ayah or verses of the Quran are
not limited to laws and regulations. In the Quran, hundreds of different
types of issues have been introduced, but a part of the Quran, said to
consist of about five hundred ayah, from a total of six thousand, six hundred
and sixty, i.e. roughly a thirteenth of the Quran, pertains especially
to the laws.
From the early days of Islam, Muslims have always used the Quran as
the primal point of reference in order to deduce Islamic laws. However,
about the same time as the rule of the Safavid dynasty there appeared in
Iran a sect manifesting the view that the right of ordinary people to refer
to the Quran is forbidden, and they claimed that only the Prophet and the
Imams have this right.
In the same way, this group also considered the refer-ral to consensus
and reason as being unpermissable, holding that consensus had been introduced
by the Sunnis, and that the use of reason is open to error and thus unreliable.
In this way they maintained the Sunnah to be the sole source of reference.
It was for this reason that they were called the akhbariyyin for
akhbar
means tradition.
This group, by denying the right of referral to the Quran, consensus
and reasoning, were essentially denying ijtihad, for ijtihad,
as has been stated, means precise understanding and profound deducing,
and it is evident that profound understanding is not possible without making
use of reason. This group came to believe that ordinary people, without
the medium of a group known as mujtahids, must refer to the traditions
for guidance in their daily affairs and actions, just as today they refer
to the treatises of the mujtahids. [1]
The appearance of the akhbariyyin and the large numbers that
were attracted to them in some cities in the south of Iran and islands
of the Gulf and in some of the holy cities of Iraq, was the cause of severe
decline. Fortunately, however, with the noteworthy and laudable resistance
of the mujtahids of the period, their penetration was firmly checked.
Today, apart from a few scattered places, their theories are largely non-existent.
The Sunnah
The Sunnah means the words, actions and assertions of the holy Prophet
and the Imams. Clearly it is evident that if by the Holy Prophet a certain
law has been verbally explained, or if it is determined how the Prophet
performed certain religious obligation, or if it is realised that others
used to perform certain religious duties in his presence in a certain way
which would earn his blessing and approval, meaning that by his silence
he actually gave his endorsement, this is sufficient proof (dalil)
for a jurisprudent to consider the action in question to be the actual
law of Islam.
About this definition of Sunnah, and it being binding (hujjat)
there is no question of argument and no scholar opposes it. The differences
that exist on the subject of the Sunnah concern two points. One is the
question as to whether only the Sunnah of the Prophet is binding or whether
the Sunnah related by the pure Imams is also binding. Our Sunni-Muslim
brothers only consider the Sunnah of the Prophet as binding, but the Shi'ites
also refer to the words, actions and silent approvals of the holy Imams,
in accordance to the traditions of the Prophet which even Sunni Muslims
have related and recorded. One of these traditions is this one wherein
the Prophet has undoubtedly told us: "I leave behind me two valuable things
to which you are to refer, and God forbid that you not refer to them: the
Book of God and the people of my House."
The second point is that the related Sunnah of the Prophet of God and
the pure Imams is sometimes clear and multi-related, i.e. there are different
chains of narrators of the same Tradition, and sometimes suspicious, or,
to coin a phrase, a Single Report (khabar al-wahid).
Here the different views vary to an extent that is an excessive exaggeration.
Some, like Abu Hanifa, a jurisprudent of one of the four Sunni schools,
paid scant attention to the related Traditions; it seems that from all
the thousands of Traditions narrated from the Holy Prophet, he considered
only seventeen to be reliable.
Others have found confidence even in "weak", unreliable Traditions.
But the Shi'ite 'ulema are of the opinion that only reliable traditions
are to be given credence. That is, if the people who make up the chain
of narrators, called the musnad, are Shi'ite and just, or at least
truthful and reliable, then the Tradition itself can be relied upon. So
we must know the narrators of the Traditions and must research into their
conditions, and, if it becomes determined that all the narrators of a Tradition
were truthful and reliable, we rely upon that Tradition.
Many of the 'ulema of the Sunnis have this same idea, and it is for
this reason that the study of the Transmitters exists among them. The akhbari
Shi'ites, however, who we have mentioned, considered the division of Traditions
into the divisions of valid and weak as being uncalled for, and said that
all Traditions are reliable, especially those contained in the reliable
books. This extreme [2] view is
also held by some of the 'ulema of our Sunni brothers.
Consensus
Consensus means the unanimous view of the Muslim 'ulema on a particular
issue. In the opinion of the Shi'ite 'ulema, consensus is binding because
if all the Muslims have one view, this is proof that the view has been
received from the Holy Prophet.
It is impossible for all Muslims to share the same view on a matter
if it came from themselves, and thus their consensus is proof of the origin
of that view being the Sunnah of the Prophet or an Imam.
For example, if it is clear that on one subject all the Muslims of the
Prophet's era, with no exceptions, had a certain view and have performed
a certain type of action, this is proof that they were taught it by the
Holy Prophet. Likewise, if all the companions of one of the pure Imams
who took instructions from none but the Imams all had an identical view
about something, this is proof that they acquired that view from the schooling
of their Imam. Therefore, in the Shi'ite view, consensus goes back to the
Sunnah of the Prophet.
From what has been stated we learn two things:
First, in the Shi'ite view, only the consensus of the 'ulema of the
same period as the Prophet or Imams is binding. So, if in these times of
ours a consensus occurs about something between all the 'ulema with no
exception, this is in no way binding for subsequent 'ulema. Second, in
the Shi'ite view, consensus is not genuinely binding in its own right,
rather it is binding in as much as it is a means of discovering the Sunnah.
In the view of the 'ulema of our Sunni brothers, however, consensus
is a proof in its own right. That is, if the 'ulema of Islam, in their
view the management of Islam, are all in agreement upon a certain point
of view about a subject in one period (even this period of ours), their
view is definitely correct. They claim that it is possible for some of
the nation to err, and some not to, but it is not possible for all of them
to be in agreement and err.
In the view of our Sunni brothers, complete agreement of all the Muslims
in one period is ruled as divine revelation, and thus all the Muslims,
at the moment of consensus, are ruled as Prophets, and that which is revealed
to them is the law of God and cannot be wrong. [3]
Reason
The binding testimony of reason in the Shi'ite view means that if in
a set of circumstances reason has a clear rule, then that rule, because
it is definite and absolute, is binding.
Here the question arises as to whether the laws of the Shari'ah are
in the domain of reason or not, and to this question we will give an answer
when we discuss the generalities of the Principles.
As for the akhbariyyin, whom we have discussed and whose ideas
we have shown, they in no way count reason as binding.
Amongst the 'ulema of our Sunni brothers, Abu Hanifa considered analogy
(qiyas) to be the fourth proof, and thus in the view of the Hanifa
sect, the sources of jurisprudence are four: the Book, the Sunnah, consensus
and analogy.
The Maliki and Hanbali Sunnis, especially the Hanbalis, pay no heed
whatever to analogy. The Shaf'i Muslims, following their leader, Muhammad
ibn Idris Shaf'i, pay more attention to Traditions than the Hanafis and
also more attention to analogy than the Maliki and Hanbali Musl ims.
The view of the Shi'ite 'ulema, however, is that because analogy is
pure conjecture and surmissal, and because the total of what has been received
from the Holy Prophet and the Imams is sufficient for our responsibility,
the referral to analogy is strictly forbidden.
Lesson Three: A Brief History
For a student who wishes to study or gather information about a certain
branch of learning, it is necessary that he acquaints himself with the
origins of that learning, with those who introduced it, with the nature
of its development over the centuries, with its notable champions and exponents
and with its famous and creditable books.
The study of Principles is one of the studies that was originated and
brought up in the surroundings of the culture of Islam. It is generally
recognised to have been introduced by Muhammad ibn Idris Shaf'i. Ibn Khaldun
in his famous Muqaddamah, in the section in which he discusses the
various sciences and skills, tells us, "The first person in the study of
the Principles of Jurisprudence to write a book was Shafi'i, who wrote
his famous Treatise. In that treatise, he discussed the commands and prohibitions,
the Traditions, abrogation and other matters. After him, the Hanifi 'ulema
wrote similar books and brought extensive research into practice."
However, as has been pointed our by the late Seyyid Hasan Sadr, may
God raise his station [4], various
problems of Principles, such as the commands and prohibitions and "generalities
and particularities" had previously been raised by Shi'ite 'ulema who had
written a treatise about each one of them. So perhaps it can be said that
Shafi'i was the first person to write one book about all the issues of
Principles that, by his time, had been raised.
Likewise, it has been considered by some orientalists that ijtihad
began amongst the Shi'ite some two hundred years after it began amongst
the Sunnis; a view they base upon the assumption that during the time of
the pure Imams there was no need amongst the Shi'ites for ijtihad
and that as a result, there was similarly no need for the preparatory studies
of ijtihad. This is a view, however, that is in no way correct.
Ijtihad, in the proper meaning of deducing the consequences (i.e.
legislation) of faith from the sources - meaning referring the consequences,
or legislation to the sources, and applying the sources to the legislation-has
existed amongst Shi'ites ever since the time of the pure Imams, and the
pure Imams used to command their companions to engage themselves in this
practice.
Furthermore, due to the numerous Traditions about different subjects
that have been narrated from the pure Imams, Shi'ite jurisprudence has
naturally been considerably enriched, and thus the struggles of ijtihad
are somewhat easier. At the same time, however, Shi'ite Islam has never
considered itself to be free of the need of tafaqquh and ijtihad,
and as has been said, the instructions to carry on the struggle of ijtihad
were especially given by the Imams to their outstanding companions. In
reliable books the following sentences has been recorded from the Imams:
"Upon us is the (general) rules (i.e. the general rules are the responsibility
of the Imams) while upon you is the application (i.e. the application of
the rules in all the particular circumstances is our responsibility)."
Amonst Shi'ite 'ulema, the first outstanding personality to compile
books on Principles and whose views were discussed in Principles for centuries
was Seyyid Morteza 'Alam ul Huda Numerous books on Principles were compiled
by Seyyid Morteza, the most well-known of which is Thariyah (The
Medium).
Seyyid Morteza was the brother of Seyyid Razi who was the compiler of
the famous Nahj ul-Balagha, the book of sermons, letters, and sayings
of Hazrat Ali ( ( rightly called the Way of Eloquence. Seyyid Morteza lived
during the late fourth and early fifth centuries A.H. He died in 436 A.H.
He had been the student of the famous mutakallim, or master of theology
(kalam), Shaykh ul-Mufid (died 413 A.H.), who in turn had been the
pupil of the equally famous Shaykh Saduk (died 381 A.H.).
Following Seyyid Morteza, a famous and important figure in the study
of Principles who wrote a book and whose views were for three or four centuries
outstandingly influential was the great Shaykh Tusi (died 460 A.H.) who
had been the pupil of Seyyid Morteza and who, almost a thousand years ago,
founded the scholastic centre of Najaf in Iraq, which is still functioning
today.
A later personality of the study of Principles was the late Waheed Bahbahani
(1118-1208 A.H.), who in various ways was a very important figure. Many
of his pupils in jurisprudence and ijtihad were brought by him to
a high level of distinction and excellence. Another was his thorough combat
against the previously mentioned akhbariyyin who at that time were
accumulating an extraordinary influence. The success of the system of ijtihad
over the corrupt system of the akhbariyyin owes much to his efforts.
Over the past hundred years, without doubt the most important figure
in the study of Principles is the late Shaykh Morteza Ansari (1214-1281
A.H.), and those who have come after him have all followed his school of
thought. Until now no line of thought has been formed that has transformed
that of Shaykh Ansari, although many students of his school have formed
views, based on Shaykh Ansari's own teachings, that have occasionally abrogated
a view of Shaykh Ansari. His two books, Faraid ul-usul and Mukassib
(on the subject of jurisprudence) are today both used as textbooks for
the students of religion .
Amongst the pupils of the school of Shaykh Ansari the most famous is
the late Mulla Khorasani, who has been recorded in the history books as
the man who issued the verdict (fatwa), for the constitutional movement
in Iran, and who had a major share in the establishment of the constitutional
regime.
Amongst the Islamic studies there is none so changeable and variable
as the study of Principles and even today there exist outstanding figures
who are counted as having their own (legitimate) views in Principles.
The Principles of Jurisprudence, bearing in mind that its concern is
the calculation of knowledge and the mind, and has many minute investigations,
is a pleasant and heart-warming study that magnetises the mind of a seeker
of knowledge. As far as being an exercise in thought and in exact practices
of the mind, it stands alongside logic and philosophy. The students of
the ancient sciences owe their precise way of thinking largely to the study
of Principles.
Lesson Four: The Subjects of the Principles
So as to acquaint the respected reader with the issues of the Principles
of Jurisprudence we will discuss the main outline, not in the order followed
by the scholars of the Principles, but in an order which will better suit
our purposes.
Previously, we stated that the study of Principles is a study of instructions,
meaning that it teaches us the way of correctly and validly deducing the
commandments of religion from the original sources. Following upon this,
the issues of the Principles are all related to the four types of sources,
which we spoke about in the second lesson. Thus the issues of the Principles
are related either to "the Book", i.e. the Quran, or to the Sunnah (or
to both, since both are originally verbal sources) or to consensus or to
reason.
Now I wish to say that it is possible for us occasionally to meet circumstances
in which we cannot deduce the necessary Islamic law from the four sources.
In such circumstances the Islamic Shari'ah is not silent and has established
for us a system of rules and practices from which we can interpret the
apparent law.
Acquiring the apparent duty of application (from the requisite rules)
after having failed to deduce the actual duty requires that we learn the
correct method and instructions of benefitting from those rules.
Thus the study of the Principles, which is a study of instructions,
becomes divided in two parts. One part contains instructions for correct
and valid deducing of the actual laws of the Shari'ah from the relevant
sources. The other part is related to the correct and valid way of benefitting
from a chain of rules for application after having lost hope of deducing.
The first part is called the principles for deducing (usul ul-estanbatiyah),
and the second part is called the principles for application (usulal-'amaliyah)
(of the special rules when there is no hope of deducing).
Furthermore, since the principles of deducing relate to deducing either
from the Book, from the Sunnah, from consensus or from reasoning, the issues
of the principles of deducing are divided into four parts. We will begin
our discussion with the Book.
The Binding Testimony of the Quran's Apparent and Accepted Realities
(zawahir)
In the Principles of Jurisprudence there are not many discussion particular
to the Quran. The discussions relative to the Quran are basically related
both to the Book and to the Sunnah. The only discussion centered solely
on the Quran concerns the binding testimony of its apparent realities,
by which is meant the question of whether the apparent laws of the Quran
-regardless of whether or not they are qualified, conditioned and explained
by existent or authentic traditions-are binding testimonies for the jurisprudents
to unconditionally rely on.
It seems to be surprising that the usulin, those learned in the
Principles, should have thought up such a debate. Could the legitimacy
of a jurisprudent, relying on the apparent laws of the ayahs or verses
of the sacred Quran be ever subject to doubt?
This is a discussion that was introduced by the Shi'ite 'ulema of the
Principles in order to negate the misgivings of the akhbariyyin,
who, as has been shown, believed that other than the holy ones (The Prophet,
his daughter and the twelve Imams, peace be upon them all) no one has the
right to refer to the Quran, or to deduce the Shari'ah from it. Or, in
other words, the eternal benefitting of Muslims from the Quran must be
indirect, must be via the Sunnah of the Ahle Bait, the Prophet and the
purified members of his House. This claim of the akbariyyin was
based upon the Traditions that have forbidden interpreting the Quran by
view.
The 'usuliyyin, however, have proved that the deducing of Muslims
from the Quran is direct, and that the meaning of the prohibition of 'interpreting
the Quran by view' is not that people have no right to understand the Quran
by their own thought and reflection, but that the Quran must not be interpreted
according to desire and inflated ego.
Furthermore, the Holy Prophet and the Imams have authentically reported
to have told us that forged Traditions would appear, and in order to distinguish
the true from the false, we must compare all Traditions with the Quran,
and any Traditions that disagree with the Quran must be realised to be
false and thus be disregarded, meaning that they are not worthy of any
respect. This of course cannot be done without referring to the Quran.
What is more, the same Traditions make it clear that, in complete contrast
to the claims of the akhbariyyin, the Sunnah is not the criteria
of the Quran, rather the Quran is the criteria of the Sunnah.
The Apparent and Accepted Realities (zawahir) of the
Sunnah
About the binding testimony of the Sunnah, by which is meant the Traditions
and narrations that have reiterated the words, actions and silent assertions
of the Prophet and the Imams, two important subjects are discussed in the
study of Principles.
One is the question of the binding testimony of the khabar al-wahid,
the Single Report, and the other is the question of the Traditions which
are opposed to the Quran, and which, as we have seen, are to be rejected.
Thus it is in this way that two important branches of the study of Principles
is opened, one called the Single Report, (khabar al-wahid) and the
other Unification and Preference (t'adul wa tarajih).
The Single Report (khabar al-wahid)
The Single Report is a Tradition that has been reported from the Imam
or Prophet but by only one person, or is reported by more than one person
but does not reach the level of being consecutively related by so many
different people that there is no possibility of the Tradition being in
any way wrong (tawatur). Now, can such a Tradition be used as a
basis for deducing the Shari'ah or not?
The 'usuliyyin believe that, provided the Transmitters of the
Single Report from the first to the last were all just or at least were
probably truthful, the Traditions they have narrated can be used to deduce
the relevant law. One of the justifications for this claim is the holy
ayah of the Quran, in which we are told, "If there comes to you a wicked
man with news; examine." (49:6), which means that if a wrong-doer comes
and gives us some news, we are to research into his report, and without
having definitely established the validity of the report, we are in no
way to put it into effect. Similarly, the ayah tacitly indicates that if
a just person and reliable person gives us a report, we are to put it into
effect. The tacit meaning of this ayah, therefore, is proof of the binding
testimony of the Single Report. [5]
Unification and Preference
Now the issue of opposing Traditions. Often it occurs that various Traditions
on the same subject are opposed to each other. For example, about whether
we should recite the thikr (rememberance) of the third and fourth
units of prayer (rak'ats) - called the tasbihat al-arb'ah
- three times in each unit or whether only one time is enough, from some
Traditions it is learned that it must be said three times, while in one
Tradition we learn that one time is enough. Or about whether it is permissable
to sell human manure, there are likewise various Traditions that oppose
each other.
What must be done when we have such varying Traditions? Must we consider
that when two contrasting reports exist we are to ignore them both, just
as if we had no Traditions on that subject at all? Or do we have the option
of acting according to whichever of them we like? Or are we to act according
to precaution and thus to the Tradition that is nearer to precaution (which,
pursuing our previous example of the thikr of the third and fourth
units of the prayer, would mean acting according to the Traditions that
tell us to recite it three times, and in the example of the issue of selling
human manure, to the Traditions that tell us it is forbidden)? Or is there
another way of acting?
The 'ulema of the Principles have determined that firstly the unified
content of all the varying Traditions must as far as possible be implemented,
and, if this is not possible, and neither of the two sides has preference
over the other in some way, such as in the reliability of the chain of
narrators, in its credibility amongst earlier 'ulema who may have had some
other testimony that we have missed, or in its being clearly not due to
taqiyah, [6]
and such like, we have the option to act according to whichever of them
we like. [7]
There are Traditions themselves that contain the instructions of what,
in the case of contradicting Traditions, we are to do. The Traditions that
lead us to the resolving of the difficulty of contradicting Traditions
are called Corrective Reports (akhbar ul-'elajiyah).
The 'ulema of the Principles, on the basis of these Corrective Reports,
have expressed their views on the contradicting Traditions. This is the
branch of the study of Principles that has been named "unification and
preference" and which discusses the unification of opposing Traditions,
and the superiority of some over others.
From what has been said it is clear that the issue of the binding authority
of apparent laws is relevant to the Book and the issues of the Single Report
and of the contradicting testimonies concern the Sunnah. Now it is to be
said that there are issues in the Principles that are common both to the
Book and to the Sunnah and these we will talk about in the next lesson.
Lesson Five: Issues Common to the Book and the Sunnah
In the previous lesson we showed some of the issues of the Principles
that were particular either to the Book or to the Sunnah, and at the conclusion
of the lesson it was said that some issues of the Principles are related
both to the Book and to the Sunnah. In this lesson we will pay attention
to these common discussions.
The common discussions consist of the following:
- The discussion of imperatives (awamir)
- The discussion of negative imperatives (nawahi)
- The discussion of generalities and particularities (aam wa khas)
- The discussion of unconditional (mutlaq) and conditional (muqayyad)
- The discussion of tacit meanings (mafahim)
- The discussion of the abstract (mujmal) and the clear (mubayyan)
- The discussion of the abrogator (nasekh) and the abrogated (mansukh)
Now, within the limits of merely becoming acquainted with these terms,
each one will be separately discussed.
The Discussion of Imperatives (awamir)
The Arabic awamir is the plural of the word amr which
means command. It also means the type of verb form that in English is called
imperative, such as the verb form: Listen ! or Stand !
In the Book and the Sunnah, many of the phrases are in the form of the
imperative, and it is here that many questions are raised in jurisprudence
that must be answered in the study of Principles. Such questions as to
whether or not the imperative is a proof of its being obligatory (wajib)
or of being desirable, or of neither. Does the imperative signify that
the verb is to be done once or a number of times?
For example, the Quran contains the following instruction, "Take
from their property charity, you cleanse them and purify them thereby,
and pray for them; your prayer is a soother for them" (9:103) "Pray",
in this holy verse, means supplicate, or send a blessing. Here, the first
question that is raised concerns the status of the imperative verb form,
"pray". Does it mean that to supplicate for them or send a blessing upon
them is obligatory? In other words, is the imperative here an indication
of obligation or not?
The second question is as to whether or not the imperative is an indication
of immediate obligation? Is it obligatory that right after taking the divine
tax (zakat) prayer is to be offered for them, or is an interval
no problem? Thirdly, is one prayer enough or must it be performed repeatedly?
In the study of Principles, these matters are all discussed in depth,
but here is not the place to discuss them further. Those who choose to
study Jurisprudence and the Principles will naturally learn about these
details.
The Discussion of Negative Imperatives (naw ahi)
The Arabic word nawahi is the plural of nahy which means
to stop or prevent, and is the opposite of amr, the imperative.
If in English we say, "Do not drink alcohol," this is a negative imperative
in English and in Arabic a nahy. Both in the Book and in the Sunnah
there are many phrases which are negative imperatives.
Similar questions arise on this subject to those we saw on the subject
of the imperative. Is the negative imperative testimony for the object
of the verb being forbidden (haram) or for it being undesirable
(makruh) but not forbidden (haram)? Likewise, does the negative
imperative testify permanency, i.e. that the action of the verb must never
be done, or that it is only to be refrained from during a temporary period?
These are questions the answers to which are provided by the study of
Principles.
Discussion of Generalities and Particularities (aam wa khas)
In the civil and penal laws of human society, we notice that a general
and common law exists which applies to all, and we then notice that there
also exists another law related to a group of individuals from that society;
a law that is opposed to the common and general law.
In such instances, what is to be done? Must the two laws be received
as being self-contradicting? Or, since one of the two laws, compared to
the other, is general while the other is particular, is the particular
law to be received as an exception to the general law?
For example, we are told in the Quran that divorced women must wait
after their divorce for three monthly periods, and after that term they
are free to remarry. In reliable Traditions, however, we are told that
if a woman is married by a man, and before marital relations (i.e. sexual
intercourse) occurs between them, the woman is divorced, it is not necessary
for the woman to observe the term.
What are we to do here? Are we to consider this Tradition to be opposed
to the Quran and therefore reject it and disregard it just as we have been
instructed? Or are we to consider that, on the contrary, this Tradition,
in reality, expounds the Quranic ayah for us, that it has the rank of an
exception in certain of the particular circumstances, and that the Quran
is in no way contradicted by it.
It is the second view that is the correct and valid one of course, for
man is used to having a law introduced in the general form and then having
the exceptions explained. Man is not used to having the exceptions explained
before the law is introduced, and the Quran has addressed human beings
on the basis of the terms and language of mankind. In another place the
Quran itself has counted the Traditions of the Prophet as being reliable.
"What the Prophet gives you, take! And what he has prohibited you, avoid!"
(59:8). In these types of circumstances, we receive particularities as
having the rank of exceptions to generalities.
Unconditional (mutlaq) and Conditional (muqayyad)
The question of conditional and unconditional is similar to the question
of generality and particularity, but generality and particularity are relevant
to what the law applies to, while conditional and unconditional are relevant
to the different circumstances and qualities of the law itself. The general
and particular are relevant to an order that generally covers all the different
forms of that which the law applies to, some of which, due to a particular
reason, are exempt from that generality. The question of unconditional
and conditional, however, is related to the essence and nature pertaining
to the duty which the duty-bound must perform. If that essence and nature
pertaining to the duty has no particular condition then it is unconditional,
and if it has a particular condition, it is conditional .
For example, in the example which we previously quoted, the Holy Prophet
was commanded that at the time of taking the zakat from the Muslims
he was to supplicate for them. This instruction, as regard whether the
Prophet was to supplicate for them loudly or quietly, for example, or whether
he was to supplicate for them in company or when alone, is unconditional.
Now I wish to say that if we have no other proof or reason provided
by the Quran or reliable Traditions making one of the two above-mentioned
conditions, we act according to the unconditional meaning of the ayah.
That is, we are free to perform the command in whatever fashion we like.
If, however, we are provided with an authentic proof telling us, for example,
that the supplication is to be unconditional to the conditional, which
means that we are to consider the unconditional sentence to be given a
condition by the conditional sentence, and we then interpret the unconditional
as the conditional .
The Discussion of the Tacit (mafahim)
The tacit in the terminology of the study of Principles is the opposite
of spoken. Imagine that someone says, "Come with me to my house and I will
give you such and such a book." This sentence, in reality, is a sentence
taking the place of the following two sentences: First, "If you come with
me to my house I will give you that book", and second, "If you do not come
with me to my house I will not give you that book".
So here there are two connections: the affirmative and the negative.
The affirmative connection is between accompanying and giving, and exists
in the substance of the sentence and it is uttered. For this reason it
is called the spoken. The negative connection on the other hand is not
uttered, but from the sentence it is naturally understood. This is why
it is called tacit or, more literally, the understood.
In the discussion on the Single Report we saw how the 'usuliyyin
have realised the binding testimony of the Single Report, when the narrators
are all just from the holy ayah of the Quran which tells us, "If there
comes to you a wicked man with news, examine. "
This realisation is from the tacit meaning of the ayah. The words of
the ayah only tells us that we are not to put into effect the news of the
unjust without investigation, while the tacit meaning of the ayah is that
we are not to put into effect the news he gives us, but we are to put into
effect the news given to us by someone who is just.
The Abstract (mujmal) and the Clear (mubayyan)
The discussion of the abstract and the clear does not have so much importance.
It simply means that sometimes a phrase in the language of the Holy Prophet
is ambiguous for us and its meaning unclear, like the word ghena
(music), while in another proof from the Quran or the Sunnah there exists
its explanation. In such cases the ambiquity of the abstract is cancelled
by the clear.
The Abrogator (nasekh) and the Abrogated (mansukh)
Sometimes in the Quran and the Sunnah we come across an instruction
that was temporary, meaning that after a time a different instruction was
given, which has, to use a phrase, cancelled the first instruction.
For example, the Holy Quran first tells us that if women having husbands
commit adultery they are to be confined to their houses until they die
or until God established some other way for them. Then the way that God
established for them was the general instruction that if a man having a
wife or a woman having a husband commits adultery, they are to be executed.
Or, for example, at first the instruction was revealed that in the holy
month of Ramazan, even at night, men must not have intercourse with their
wives. This rule was then cancelled and permission was given.
It is essential for a jurisprudent to distinguish the abrogator and
the abrogated. On the issue of abrogation many questions are raised which
are reflected on and discussed in the study of Principles.
Lesson Six: Consensus and Reasoning
Consensus
As we saw in the second lesson, one of the primal sources of jurisprudence
is consensus. In the study of Principles, the questions of the binding
testimony of consensus, the proofs of it being a binding testimony, and
the pursuing of the method by which proofs are benefitted from it, are
all subjects of debate.
One of the topical points related to consensus is as to the nature of
the proof's being binding. The 'ulema of our Sunni brothers claim that
the Holy Prophet has told us, "My nation will not (all) consent to a mistake".
Basing their view on this, they say that if the Muslim nation find the
same point of view on an issue, that view is clearly the correct one.
According to this Tradition, the members of the Muslim nation are ruled
in total as having the same status as a Prophet and being faultlessly free
from error. The speech of the whole nation has the same rank as the speech
of a Prophet, and all the nation, at the moment of finding the same view,
are faultless, i.e. immaculate.
According to this view of the Sunni 'ulema, since the whole nation is
infallible, whenever such an agreed view occurs, it is as if divine inspiration
has been revealed to the Holy Prophet.
Shi'ites, however, in the first place, do not count such a Tradition
as being definately from the Prophet. Secondly, they agree that it is impossible
for all the members of the whole nation to stray and to err, but the reason
for this is that the leader of that nation, the Prophet or Imam, is a person
who is infallible and immaculate. That the whole Muslim nation cannot err
is because one particular member of the Muslim nation cannot err, not because
from a group of people who are fallible, an infallible is formed. Thirdly,
that which is called consensus in the books of jurisprudence and theology
(kalam) is not the consensus of the whole nation. It is simply the
consensus of a group, the group of managers or supervisors-i.e. the 'ulema-
of the nation. Furthermore, it is not even the consensus of all the 'ulema
of the nation, but the consensus of the 'ulema from one sect from amongst
the nation.
Here is where the Shi'ites do not maintain the same principle of consensus
that the Sunni 'ulema maintain. Shi'ites maintain the binding testimony
of consensus only in as far as it is the means of discovering the Sunnah.
In the thinking of the Shi'ites, whenever there is no proof in the Book
and the Sunnah about a certain subject, suppose, but it is known that the
general body of the Muslims, or a numerous group of the companions of the
Prophet, or those companions of an Imam who did nothing except in accordance
to the divine instructions, all used to act in a particular way, then we
realise that in those times there existed an instruction of the Sunnah
which we are unaware of.
Acquired Consensus and Narrated Consensus
Consensus, whether that which our Sunni brothers have accepted or that
which Shi'ites consider valid, is of two types: acquired and narrated.
Acquired consensus means the consensus, the knowledge of which the mujtahid
has himself directly acquired as the result of minute research into history
and the views and opinions of the companions of God's Prophet or of the
companions of the Imams, or of the people close to the time of the Imams. [8]
Narrated consensus is the consensus about which the mujtahid
has no direct information, but which has been related by others. Acquired
consensus, of course, is a binding testimony, but narrated consensus, if
certitude is not obtained from the narrator by which it is narrated, is
not relied upon. Therefore, the Single Report of consensus does not constitute
a binding testimony, even though, as we have seen, the narrated Single
Report of the Sunnah does, provided the chain of narrators meets the conditions.
Reasoning
Reasoning is one of the four sources of jurisprudence. What is meant
is that sometimes we discover a law of the Shari'ah by the proof of reason.
That is by means of the deduction and logic of reason we discover that
in a certain instance a certain necessary law or prohibitive law exists,
or we discover what type of law it is and what type it is not.
The binding testimony of reason is proved by the law of reason ("the
sun is shining, hence the proof of the sun" - meaning that with the existence
of reason no other proof is needed), and also by the confirmation of the
Shari'ah. Essentially we are sure of the Shari'ah, and of the principle
of beliefs of religion, by means of reason. How could it be that in the
view of the Shari'ah reason is not to be considered as binding?!
The issues of the Principles related to reason are in two parts. One
part relates to the inner meaning or philosophy of the commandments. The
other part is related to the requirements of the commands.
Let us begin with the first part. One of the obvious elements of Islam,
especially in the view of the Shi'ites, is that the Shari'ah of Islam exists
in accordance to what comprises the best interests of human beings and
their worst interests. That is, each command (amr) of the Shari'ah
is due to the necessity of meeting the best interests of human beings and
each prohibition (nahy) of the Shari'ah arises from the necessity
of abstaining from their worst interests, i.e. the things that corrupt
them.
Almighty God, in order to inform them as to what comprises their best
interests, in which lies their happiness and prosperity, has made a chain
of commands obligatory (wajib) or desirable (mutahab) for
them. And so as to keep human beings away from all that which corrupts
them, He prohibits them from those things. If the best interests and forms
of corruption did not exist, neither command nor prohibition would exist.
If the reasoning of human beings became aware of those best interests and
those forms of corruption, they are such that it would devise the same
laws that have been introduced in the Shari'ah.
This is why the practioners of the Principles, and also the mutakalimin,
consider that, because the laws of the Shari'ah accord to and are centred
on the wisdom of what is best and worst for human beings-and it makes no
difference whether those best and worst interests are relevant to the body
or the soul, to the individual or the society, to the temporary life or
the eternal -wherever laws of reason exist, so the corresponding laws of
the Shari'ah also exist, and wherever there exists no law of reason, there
exists no law of the Shari'ah.
Thus, if we suppose that in some case no law of the Shari'ah has been
communicated to us, particularly by means of narration, but reasoning absolutely
traces with certitude the particular wisdom of the other judgments of the
Shari'ah, then it automatically discovers the law of the Shari'ah in this
case too. In such instance reasoning forms a chain of logic: First, in
such and such a case, there exists such and such a best interest which
must necessarily be met. Second, wherever there exists a best interest
that must necessarily be met, the Legislator of Islam is definitely not
indifferent, rather He commands the meeting of that best interest. Third,
so, in the quoted instances, the law of the Shari'ah is that the best interests
be met.
For example, in the time and place of the Holy Prophet there was no
opium or addiction to opium, and we, in the narrated testimonies of the
Quran and the Sunnah and consensus, have no testimonies particular to opium
one way or the other, yet due to the obvious proofs of experiencing opium
addiction, its corruption has been experienced. Thus, with our reasoning
and knowledge, and on the basis of "a form of corruption which is essentially
to be avoided", and because we know that a thing which is harmful for human
beings and a corruption of them is forbidden in the view of the Shari'ah,
we have realised that the law about opium is that addiction to opium is
forbidden .
Similarly, if it becomes established that smoking tobacco definitely
causes cancer, a mujtahid, according to the judgment of reasoning
will establish the law that smoking is forbidden according to the Divine
Law.
The 'usuliyyin and the mutakalimin call reason and the
Shari'ah inseparable from each other. They say that whatever law is established
by reason is also established by the Shari'ah.
However, this of course is provided that reasoning traces in an absolute,
certain and doubtless way those best interests which must be attended to
and those worst interests or forms of corruption that must be shunned.
If not, the name reasoning cannot be given to the use of opinion, guesswork
and conjecture. Analogy for this very factor is void for it is more opinion
and imagination rather than reasoning and certitude.
On the other hand, when reasoning plays no part in the forming of a
law and we only see that such and such a law has been introduced in the
Shari'ah, we know that our best interests were definitely involved, for
otherwise the law would not have been made. Therefore, reason, in the same
way as it realises the law of the Shari'ah by realising the best interests
of human beings, similarly realises the best interests of human beings
by realising the law of the Shari 'ah .
Therefore, in the same way it is said that whatever is a law of reason
is a law of the Shari'ah, it also said that whatever is a law of the Shari'ah
is a law of reason.
Let us now discuss the second part, the requirements of the commands.
We know that whatever law made by whatever sane law-maker possessing intellect
naturally has a chain of essentials that must be judged according to reason
to see if, for example, that particular law necessitates a certain other
law, or if it necessitates the negation of a certain other law.
For example, if a command is made, such as the hajj and the form
of worship to be performed there- and the hajj necessitates a chain
of preparations, amongst them acquiring a passport, buying a ticket, vaccinations,
and currency changing; does the law of the hajj being obligatory
require these preparations to be obligatory as well, or does it not?
The same question can apply to the things that are forbidden. Does the
rule of a thing being forbidden demand that its preparations also be forbidden?
Another issue. At one time a person is not able to do two things that
are obligatory for him to do because they must be done separately. Like
at the same time it is obligatory to pray one's obligatory ritual prayers,
it is also obligatory, assuming it has become unclean by blood, urine,
etc., to clean the mosque. So the performing of one of these two duties
demands the neglect of the other. Now, does one command necessitate andcontain
the prohibition of the other? Do both the commands include this prohibition?
If two things are obligatory for us while it is not possible for us
to perform both of them at once, so that we have no option but to choose
only one of them, then if one of the two is more important, we must definitely
perform that one.
Which brings us to another issue. Is our duty in regards to the important
altogether lapsed by our duty in regards to the more important or not?
For example, two men are in danger of their lives and it is only within
our means to save one of them, and one of them is a good Muslim who works
for others while the other is a corrupt man who only troubles others, but
whose life, all the same, is still sacred.
Naturally, we must save the Muslim who is good and who helps others
whose life is more valuable to society than the life of the other. That
is, to save him is more important while to save the life of the other is
important.
In the above mentioned examples, it is reasoning with its precise calculations
which clarifies our specific duties, and in the study of Principles these
issues and issues like these are all discussed and the way of properly
determining the answers is learned.
From what has been stated from the fourth lesson to here it has become
clear that the issues of Principle are all divided into two parts, the
"Principles of Deducing" and the "Principles of Application". Likewise,
the Principles of Deducing-are in turn divided into two parts; the Narrated
and the Reasoned. The Narrated are relevant to all the discussions focused
on the Book, the Sunnah, and consensus, while the Reasoned part is related
to reason.
Lesson Seven: The 'Principles of Application'
We have learned that the jurisprudents refers to four sources for his
deducing of the laws of the Shari'ah. Sometimes in his referrals the jurisprudent
is successful and sometimes he is not. That is, sometimes (of course predominately)
he attains the actual law of the Shari'ah in the form of certitude or a
reliable probability, which means a probability that has been divinely
endorsed. In such cases, the duty becomes clear and he realises with certitude
or with a strong and permissable probability what it is the Shari'ah of
Islam demands. Occasionally, however, he is unable to discover the duty
and the Divine Law from the four sources, and he remains without a defined
duty and in doubt.
In these cases what must be done? Has the Legislator of Islam or reason
or both specified a certain duty in the case of the actual duty being out
of reach? And if so, what is it?
The answer is that yes, such a duty has been specified. A system of
rules and regulations has been specified for these types of circumstances.
Reason too, in certain circumstances, confirms the law of the Shari'ah,
for the independent law of (aware) reasoning is the very same as the law
of Shari'ah, and in certain other instances it is at least silent, meaning
that it has no independent law of its own and accords to the Shari'ah.
In the part of Principles which contains the Principles of Deducing
we learn the correct and valid method of deducing the Shari'ah, and, in
the part concerning the Principles of Application, we learn the correct
way of benefitting from the rules that have been introduced for the kind
of situation mentioned above, and of putting them into practice.
The general principles of application that are used in all the sections
of Jurisprudence are four:
- The Principles of Exemption (bara'at)
- The Principle of Precaution (ihtiyat)
- The Principle of Option (takhyyir)
- The Principle of Mastery (istishab)
Each of these four types of principles have a special circumstance which
it is necessary for us to acquaint ourselves with. Firstly we will define
the four principles themselves.
The Principle of Exemption means that we are released from our obligation
and we have no duty. The Principle of Precaution is the principle that
we must act according to precaution, which means that we must act in such
a way that if z duty actually exists as a law, we have performed that duty.
The Principle of Option is that we have the option to choose one of two
things, whichever we like, and the Principle of Mastery is the principle
that that which existed remains in its original state - or masters the
doubt that opposes it - while the doubt is ignored.
Now we will see in what circumstances the Principle of Exemption applies
and in what circumstances the Principles of Precaution, Option and Mastery
apply. Each of these has its particular instance and the study of Principles
teaches us these instances.
Sometimes the jurisprudent remains unable to deduce the law of the Shari'ah
and is unable to trace a particular necessity and remains in a state of
doubt, and it might be that the doubt is linked to some general or broad
knowledge like, for example, it is doubted whether, in this era of the
physical absence of the Imam, the special congregational prayer is obligatory
on Fridays or the normal noon prayer-here the obligation of both the Friday
prayer and the noon prayer is in doubt, while we have the general information
that one of the two is definitely obligatory - or it might be the doubt
is not linked to some general knowledge, like a doubt as to whether, in
the era of our Imam's absence, the prayer of id-i-fitr in congregation
is obligatory. In this second case our doubt is a "primary doubt" (shak
badwi) and not a doubt bordering on something that is known.
So the doubts of the jurisprudents about an obligation are either linked
to some general knowledge or are primary doubts. If they are linked to
some general knowledge, it is either possible to act in accordance to precaution,
meaning that it is possible for both possible duties to be performed, or
it is not possible to act in precaution. If precaution is possible, it
must be acted in accordance with, and both of the possible duties must
be performed, and such an instance calls for the Principle of Precaution.
Sometimes, however, precaution is not possible, because the doubt is between
obligatory and forbidden. We doubt, for example, in this period of the
Imam's absence, whether the performance of certain duties are particular
to the Imam and forbidden for us or whether they are not particular to
the Imam and are obligatory for us. Here it is self-evident that in such
instances the way of precaution is closed, so here is an instance that
calls for the Principle of Option, and we must do which ever of them we
choose.
Assuming, however, that our doubt is a primary doubt not linked to any
general knowledge, the instance is either that we know the previous condition
and the doubt is as to whether the previous law stands or is changed, or
the instance is that the previous condition not been established either.
If the previous condition is established the situation calls for the Principle
of Mastery (mastery of the known previous condition over the doubt), and
if the previous condition is not established the situation calls for the
Principle of Exemption.
A mujtahid must, as the effect of frequent application, have great power
of discernment in the execution of these four types of principles; discernment
that sometimes is in need of hair-splitting exactitude, and if not he will
encounter mistakes. [9]
Of these four principles, the Principle of Mastery has been uniquely
established by the Shari'ah, to which reason accords having no independent
rule of its own, but the other three principles of Principles of Reason
that the Shari'ah has confirmed.
The justification of the Principle of Mastery consists of a number of
reliable Traditions which are in this form: "Do not reverse a certitude
by a doubt", i.e. we are not to reverse or reject our certitude for the
sake of a doubt. From the content of these Traditions and what precedes
and follows this sentence it becomes clearly discerned that what is meant
is exactly that which the jurisprudent calls Mastery.
On the subject of the Principle of Exemption likewise there exist many
Traditions of which the most famous is the hadith ur-raf'i.
The hadith ur-raf'i is from the Holy Prophet, who told us: "Nine
things have been taken from my nation: what they do not know, what they
have not tolerated, what they have been compelled to, what they have found
themselves in need of, mistakes, forgetfulness, misfortune, envy (which
they have not acted on) and whisperings of doubt in the thoughts of the
creation."
The 'usulin have had numerous discussion about this Tradition
and about each of its points, and of course the part that sanctions the
Principle of Exemption is the first line wherein we are told that whatever
we do not know and has not reached us has been taken from us, and thus
the obligation is lifted from us.
These four principles are not particular to mujtahids for understanding
the laws of the Shari'ah. They are also relevant to other subjects. People
who are not mujtahids and who must therefore imitate (taqlid) a
mujtahid
can also benefit from them at the time of certain doubts.
For example, imagine that an unweaned baby boy takes milk from a woman
other than his mother, and when that boy grows up, he wants to marry the
daughter of that woman, and it is not known whether as a baby he drank
so much milk from that woman's breast that he is to be counted as the "wet-nurse
son" of that woman and her husband or not. That is, we doubt whether the
boy drank milk from her breast fifteen consecutive times, or for a complete
day and night, or so much that his bones grew from her milk (in which cases
the boy becomes counted as her son and thus similar to the daughter's brother
are forbidden for her). This instance calls for the Principle of Mastery,
because before the boy drank the woman's milk he was not her "wet-nurse
son", and now we doubt whether or not he is. By the Principle of Mastery,
we conclude that there is no question of a wet-nurse relationship.
Similarly, if we had performed minor ablution obligatory for the ritual
prayer or to touch the Quran or the holy names and for certain other things,
and we doze and then we doubt whether or not we actually fell asleep (in
which case the ablution becomes void), by the Principle of Mastery, we
conclude the validity of the ablution. In the same way, if our hand was
clean and we then doubt as to whether it is still clean or has become najas
(unclean), by the Principle of Mastery, we conclude it to be clean. If,
however, it was najas and we doubt whether we have cleaned it or
not, by the Principle of Mastery, we conclude that it is still unclean.
Likewise, if a liquid is in front of us and we doubt whether or not
it contains alcohol, like some medicines, the situation calls for the Principle
of Exemption, and there is no obstacle to the use of that liquid. If, however,
we have two glas'ses of medicine and we know that alcohol exists in one
of them, meaning that we have some general knowledge about the existence
of alcohol in one of them, here the Principle of Precaution is called for,
and we must not drink either.
Imagine that we are at the side of a road in the middle of a desert
and to stay there or to travel in one of the two directions of the road
definitely involves the risk of our lives, while to travel in the other
direction means we will find safety; but we do not know in which direction
lies our safety and in which direction lies the risk of our lives. Here
we are faced with two laws. The one is the obligation to save our lives
and the other is the prohibition against risking it. In which direction
must we travel? This situation calls for the Principle of Option, and we
must travel in which ever direction we like, and, if we choose the wrong
direction, we are blameless.
Notes:
[1] These treatise (risalehah)
works are wherein the mujtahid states his verdicts on all or almost all
the things that can affect daily life.
[2] The weakness of this view is
understood when it is realised that many of the Traditions recorded in
the reliable books, i.e. books compiled by reliable men, are opposed to
each other, which naturally indicates that the only logical way of discerning
the actual holy words from the false is by examining the chain of narrators.
It is also to be borne in mind that for a number of reasons, such as lack
of time for research or of knowledge of Transmitters etc., it may not have
been possible for the reliable compilers themselves to make the necessary
distinctions. Translator's Note.
[3] Consensus is further discussed
in the sixth lesson.
[4] His book is called Ta'sis
ash-shi'ah ulum al-islam.
[5] This ayah and such "tacit meanings"
(mafahim) are further discussed in the next lesson.
[6] taqiyah is the legitimate
practice of concealing one's faith in times of danger-sometimes by means
of adopting the practices of a different faith-which was often necessary
during the times of the Imams.
[7] In the final lesson, the Principles
of Jurisprudence, more light is thrown on this subject.
[8] Of course the Shi'ite view is
that the time of the Imam will last as long as mankind itself; what is
referred to here is the era of access to the Imams. Translator's Note.
[9] Of course if he was likely to
make many mistakes he would not yet be regarded as a mujtahid at
all. Translator's Note.
