Principles of Jurisprudence

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al-Fiqh: Principles of Jurisprudence –Extract from Book Understanding Islamic Sciences by ICAS

Author- Shaheed Murthadha Mutahhari

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Introduction

The subject under consideration here is the 'i/m, or knowledge of the principles of jurisprudence, U,I"u/ a/fiqh. The two studies of jurisprudence and its principles are interconnected. They are interconnected in the same way as the twin studies of logic and philosophy. The study of the principles is tantamount to a preparation for the study of jurisprudence, and it is for this reason that it has been named the principles of jurisprudence, for the word U,I"u/ means 'roots' or 'principles'.

First, a short definition of these two studies must be given. The Arabic word fiqh essentially means 'profound understanding'. Our information about the affairs and proceedings of this world can be of two types, shallow and superficial or profound. An example from economics will help. We are all aware that products that did not exist years ago are constantly finding their way on to the market, while at the same time numerous products that were previously abundant cannot now be found. Likewise, the prices of certain products increase steadily, while the prices of other goods may be fixed.

This type of information is universally available and is shallow or superficial information. However, some people have profound knowledge of these matters, having progressed from merely experiencing events to a profound understanding of their causes. What this means in this instance is that they understand why a certain article has become available and another article has become unavailable, and why a certain product is expensive and another is inexpensive. They know what causes prices to increase, and they know to what extent these causes are essential, definite and unavoidable, and to what extent they can be controlled.

When a person has a knowledge of economics that surpasses the level of simple experience and attains the level of being able to discern deep-rooted causes and trends, he can be described as one with deep understanding (mutafaqqih) in economics.

In the Holy Qur'an and in Traditions from the Holy Prophet and the Imams, we are repeatedly commanded towards profound understanding (tafaqquh) in religion, and these sources make it abundantly clear that Islam expects Muslims to understand Islam, in all its aspects, profoundly and with thorough insight. Of co~rse, profound understanding in religion, consisting of all facets of Islam, is a great blessing from God. It extends to the principles of Islamic beliefs and the Islamic world view or system of valu~s, to Islamic morals, ethics and upbringing, to all aspects of Islamic society, to Islamic worship, to the civil ordinances of Islam, to individual and social Islamic customs and to much more. However, since the second century of the Hijrah, the word jurisprudence has become a term for a special area of understanding among Muslims that may be called jurisprudence in the commands of religion or jurisprudence in deducing 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 Qur' an or by the Prophet and the Imams in such a way as to deal with each and every particularity. 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 on a certain matter to himself or others must refer to the resources and authentic documents -later we shall clarify the nature of these -and must explain his viewpoint while bearing in mind all the different aspects of those authentic documents. This is what is meant by he statement that jurisprudence is joined to precise and profound understanding of all aspects.

The masters of jurisprudence (fuqaha) offer the following definition: 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, it is necessary to prepare by mastering many other branches of learning, as follows.

1. Arabic, namely, syntax, conjugation, vocabulary, semantics, oratory. As the Qt;1r'an and Traditions are in Arabic, it is not possible to benefit from them without at least a basic knowledge of Arabic language and literature.

2. Commentary upon the Holy ~r'an (tafitr). Since jurisprudents must use the Qur'an as a point of reference, some knowledge of the commentaries on the Qur'an is absolutely essential.

3. Logic, called mantiq in Islam. Every branch of learning in which reasoning is used requires the application of logic.

4. The study of the Traditions. A jurisprudent must have a sound knowledge of the Traditions and must be able to distinguish the different types of Traditions. Frequent application of the Traditions is the route to familiarity with their language.

5. The study of the Transmitters (rija/). The study of the Transmitters is the study of the identities and natures of those who make up the chains (isnad) of reporters of the Traditions. Later we shall explain how the Traditions existing in the sanctuary of books of Traditions cannot be accepted without examination.

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, '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. Thus, principles, like logic, is a study of instructions, and is more a skill than a branch of knowledge, meaning that in jurisprudence, what is discussed is a chain of things that mus1 be, rather than a chain of things that are.

Bearing in mind that it is possible, in referring to the documents or source~ of jurisprudence, to be led to erroneous deductions that are opposed to the rea view of the Islamic SharI'ah, there needs to be a discipline that enables student: clearly to discern the correct and valid method of deducing and extracting tht laws of Islam from the sources of jurisprudence, by means of the proofs 0 reasoning and the proofs provided by God through the Prophet and thr Imams. The principles of jurisprudence is that discipline.

From the early days of Islam, another word that is more or less synonymous withfiqh (jurisprudence) and that has been in common use among Muslims is the word ijtihad. In the Muslim world today, especially the ShI'ite world, the wordsfaqth (jurisprudent) and mujtahid are synonymous.

The word ijtihad comes from the rootjuhd, which means 'utter striving'. For this reason, afaqth is also called a mujtahid, since he must use all his efforts in deducing Islamic laws (apkam).

The Sources of Jurisprudence

We have seen how the study of the principles of jurisprudence involves reference to the original sources. Now we shall examine 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 shall discuss the views of Shj'ite jurisprudents on the sources of jurisprudence, with explanations of those sources, as well as the views of the ulama' of the other Islamic sects. In the view of Shj' ites (with the exception of a small group who are called akhbariyyfn, whose views we shall consider later), there are four sources for jurisprudence:

1. The Book of God, the Qur'an, to which jurisprudents refer concisely as 'The Book'.

2. 'Sunnah', meaning the words, actions and silent assertions (taqnr) of the Prophet and the Imams.

3. Consensus, or ijma '. 4. Reasoning, or 'aql.

These four sources are called the 'four proofs', or the adillat u/-arba'ah. The study of jurisprudence is generally centred around these four proofs. Now we shall explain each of these four sources along with the views of the other Islamic sects and those of the akhbarryyin.

The Qur'an

There is no doubt that the Holy Qyr'an is the first source of the laws and regulations of Islam. Of course, the ayah, or verses, of the Qur'an are not limited to laws and regulations. In the Qyr'an, hundreds of different types of issues have been introduced, but a part of the Qur'an, 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 Q!lr' an, pertains especially to laws.

From the early days of Islam, Muslims have always used the Q!lr'an as the primal point of reference for deducing Islamic laws. However, during the rule of the Safavid dynasty a sect appeared in Iran who maintained that it was forbidden for ordinary people to refer to the Q!lr'an and that only the Prophet and the Imams had this right.

Similarly, this group considered that referral to consensus and reason were impermissible, as consensus had been introduced by the Sunnis and the use of reason is open to error and thus unreliable. In their view the Sunnah was the sole source of reference. For this reason they were called the akhbariyyin, as

akhbar means 'tradition'. This group, by denying the right of referral to the Qur'an, consensus and reasoning, were essentially denying ijtihad, for ijtihad, as has been stated, means precise understanding and profound deduction, 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.'

The appearance of the akhbariyyin and the large numbers that were attracted to them in some cities in the south of Iran, 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 their theories have virtually no support except in a few scattered places.

1be Sunnah

The Sunnah signifies the words, actions and assertions of the Holy Prophet and the Imams. Clearly, if the Holy Prophet verbally explained a certain law, or if it is known how the Prophet performed a certain religious obligation, or if it known that others performed certain religious duties in his presence in a certain way that earnt his blessing and approval -his silence indicating endorsement -this is sufficient proof (daZz/) for a jurisprudent to consider the action to be the actual law of Islam.

There is no argument about this definition of Sunnah and its binding ([Jujjat) nature, nor does any scholar oppose it. The differences that exist on the subject of the Sunnah concern two points. One is the question as to whether the Sunnah of the Prophet alone is binding or whether the Sunnah related by the pure Imams is also binding. Our Sunni-Muslim brothers consider the Sunnah of the Prophet alone as binding, but the Shi'ites also refer to the words, actions and silent approval of the holy Imams, in accordance with the traditions of the Prophet, which even Sunni Muslims have related and recorded. One of these traditions is the Prophet's instruction, '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 interrelated, i.e. there are different chains of narrators of the same Tradition, and sometimes suspicious, consisting of a Single Report (khabar al-wa/Jid).

Here views vary excessively. Some, like Abul:Ianifa, a jurisprudent of one of the four Sunni schools, paid scant attention to the related Traditions; of all the thousands of Traditions narrated by the Holy Prophet, he considered only seventeen to be reliable.

Others have found confidence even in 'weak', unreliable Traditions. But the Shi'ite ulama' are of the opinion that reliable traditions only 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 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 ulama' 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, whom we have mentioned, considered the division of Traditions into 'valid' and 'weak' to be uncalled-for and said that all Traditions are reliable, especially those contained in the reliable books. This extreme' view is also held by some of the ulama' of our Sunni brothers.

Consensus

Consensus means the unanimous view of the Muslim ulama' on a particular issue. In the opinion of the ShI'ite ulama', consensus is binding because if all Muslims have one view, this is proof that the view has been received from the Holy Prophet.

It would be impossible for all Muslims to share the same view on a matter if it came from themselves, and thus their consensus is proof that the origin of that view is 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 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 exclusively from them and the Imams all took the same 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 the above we learn two things: First, in the Shi'ite view, the consensus of the ulama' of the same period as the Prophet or Imams only is binding. So, if in the present day a consensus occurs about something among all the ulama', without exception, this is in no way binding for subsequent ulama'.

Second, in the Shi'ite view, consensus is not genuinely binding in its own right, rather it is binding inasmuch as it is a means of discovering the Sunnah.

In the view of the ulama' of our Sunni brothers, however, consensus is a proof in its own right. That is, if the ulama' of Islam, in their view the management of Islam, are all in agreement on a certain point of view about a subject in one period (even our own), 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 what is revealed to them is the law of God and cannot be wrong}

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, whether the laws of the Shari'ah are in the domain of reason or not We shall answer this question when we discuss the generalities of the principles.

The akhbdriyyfn in no way count reason as binding. Among the ulama' of our Sunni brothers, Abu J:Ianifa considered analogy (qiydS) to be the fourth proof, and thus in the view of the J:Ianafi sect, there are four sources of jurisprudence: the Book, the Sunnah, consensus and analogy.

The Maliki and J:Ianbali Sunnis, especially the J:Ianbalis, pay no heed whatever to analogy. The Shafi'i Muslims, following their leader, Mu~ammad ibn Idris Shafi'i, pay more attention to Traditions than the J:Ianafis and also more attention to analogy than the Maliki and J:Ianbali Muslims.

The view of the Shi'ite ulama', however, is that because analogy is pure conjecture and surmise, and because the total of what has been received from the Holy Prophet and the Imams is sufficient for our responsibility, reference to analogy is strictly forbidden.

A Brief History

A student who wishes to study or gather information about a certain branch of learning must acquaint 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 respected books.

The study of principles is one of the studies that originated and developed in the surroundings of the culture of Islam. It is generally recognized to have been introduced by Mul.1ammad ibn Idrjs Shafi'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 I:Ianafi ulama' wrote similar books and brought extensive research into practice.'

However, as has been pointed out by the late Seyyid I:Ia~an ~adr, may God elevate him,4 various problems of principles, such as the commands and prohibitions and 'generalities and particularities', had previously been raised by Shj'ite ulama', who wrote a treatise about each 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 had been raised by that time.

Likewise, some Orientalists consider that ijtihad began among the Shi'ite some two hundred years after it began among the Sunnis; a view they base upon the assumption that during the time of the pure Imams there was no need among the Shj'ites for ijtihad and that, as a result, there was similarly no need for the preparatory studies of ijtihad. This view is, however, incorrect.

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 among Shj'ites ever since the time of the pure Imams, and the pure Imams used to command their companions to engage in this practice.

Furthermore, owing to the numerous Traditions about different subjects that have been narrated by the pure Imams, Shj'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 i;tihad, and the instructions to carry on the struggle of ijtihad were especially given by the Imams to their outstanding companions. In reliable books the following statement from the Imams is found: 'Upon us are 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 your responsibility]'.

Among Shi'ite ulama', the first outstanding personality to compile books on principles and whose views were discussed in principles for centuries was Seyyid Morteza 'Alam ul Huda. The best-known of his numerous books is Dhari'ah ('The Medium').

Seyyid Murta<;la was the brother of Seyyid Ra<;li, who was the compiler of the famous Nah} ul-Balaghah, the book of sermons, letters and sayings of Hazrat 'Ali (rightly called the Way of Eloquence). Seyyid Murta<;la lived during the late fourth and early fifth centuries AH and died in 436 AH. He had been the student of the famous mutakallfm, or master of theology (kalam), Shaykh ul- Mufid (died 413 AH), who in turn had been the pupil of the equally famous Shaykh .)aduq (died 381 AH).

Following Seyyid Murta<;la, 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 AH) who had been the pupil of Seyyid Murta<;la and who, almost a thousand years ago, founded the scholastic centre of Najaf in Iraq, which is still functioning today.

A later personality in the study of principles was the late Wal:tid Bahbahani (1118-1208 AH), a very important figure in many ways. He brought many of his pupils in jurisprudence and ijtihad to a high level of distinction and excellence. He fought vigorously against the previously mentioned akhbariyyfn, who at that time were accumulating extraordinary influence. The success of the system of ijtihad over the corrupt system of the akhbariyyfn 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 Murta<;la An~ari (1214-1281 AH), and those who have corne after him have all followed his school of thought. Until now no line of thought has emerged to transform or challenge that of Shaykh An~ari, although many students of his school have formed views, based on Shaykh An~ari's own teachings, that have occasionally abrogated one of his views. His two books, ParaitJ ul-u,j"iil and Makasib (on the subject of jurisprudence), are today used as textbooks by students of religion.

Among the pupils of the school of Shaykh An~ari 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.

Among all Islamic studies there is none that is so changeable and variable as the study of principles and even today there exist outstanding figures who have their own (legitimate) views in the field.

The principles of jurisprudence, being concerned with the calculation of knowledge and the mind and involving many minute investigations, is a pleasant and attractive discipline that draws in the seeker of knowledge like a magnet. As an exercise in thought and mental exactitude, it stands alongside logic and philosophy. The students of the ancient sciences owe their precise way of thinking largely to the study of principles.

The Subjects of the Principles

In order to acquaint the respected reader with the issues of the principles of jurisprudence we shall discuss their main outline, not in the order followed by scholars, but in an order that will better suit our purposes.

Earlier, 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. The principles are all related to the four types of sources: the Book, i.e. the Qur'an, the Sunnah (or both, since both are originally verbal sources), consensus or reason.

Occasionally we may encounter circumstances in which we cannot deduce the necessary Islamic law from the four sources. The Islamic Shari'ah is not silent on this matter and has established 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 of benefiting from those rules.

Thus the study of the principles, which is a study of instructions, falls into two parts. One part contains instructions for correct and valid deduction of the actual laws of the Shari'ah from the relevant sources. The other part is related to the correct and valid way of benefiting from a chain of rules for application after deduction has failed. The first part is called the principles for deducing (u,I"ul al-istinbtifiyyah) and the second part is called the principles for application (u,I"ul al-'amaliyyah) (of the special rules when there is no hope of deducing).

Furthermore, since deduction is from one of four sources -the Book, the )unnah, consensus or reasoning -the issues of the principles of deduction are fivided into four parts.

l7Je Binding Testimony of the QJtr'an 's Apparent and Accepted Realities (zawahir)

[n the principles of jurisprudence there are not many discussions particular to :he Qur'an. The discussions relative to the Q!lr'an are basically related both to :he Book and to the Sunnah. The only discussion centred solely on the Qur'an :oncerns the binding testimony of its apparent realities, that is, whether the lpparent laws of the Qur' an -regardless of whether or not they are qualified, :onditioned and explained by existing or authentic traditions -are binding :estimonies on which jurisprudents may unconditionally rely.

It may be surprising that the u,I"uliyyin, those learned in the principles, .hould 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 Qur'an, ever )e subject to doubt?

This is a debate that was introduced by the ShI'ite ulama' of the principles In order to negate the misgivings of the akhbariyyin, who, as has been shown, )elieved that, apart from the holy ones (The Prophet, his daughter and the :welve Imams, peace be upon them all), no one has the right to refer to the ~r'an or to deduce the SharI'ah from it. In other words, the eternal benefit :hat Muslims derive from the Qur'an must be indirect, must be via the Sunnah )f the Ahl Bait, the Prophet and the purified members of his House. The claim )f the akhbariyyin was based upon the Traditions, which forbid interpretation )f the Qur'an in terms of opinion.

The u,I"uliyyin, however, have proved that the deduction that Muslims make From the Qur'an is direct, and that the prohibition on 'interpreting the Q!lr'an )y opinion' does not mean that people have no right to understand the Q!lr'an )y their own thoughts and reflections, but that the Q!lr'an must not be .nterpreted according to ambition and inflated ego.

Furthermore, the Holy Prophet and the Imams are authentically reported :0 have told us that forged Traditions would appear, and in order to iistinguish the true from the false, we must compare all Traditions with the ~ur'an, and any Traditions that disagree with the Q!lr'an must be realized to )e false and thus be disregarded, being unworthy of any respect. This of course :annot be done without referring to the Qur'an. What is more, the same rraditions make it clear that, in complete contrast to the claims of the lkhbariyyin, the Sunnah is not the criterion of the Qur'an, rather the Q!lr'an s the criterion of the Sunnah.

Tne Apparent and Accepted Realities (zawahir) of the Sunnah

Two important subjects are discussed in the study of principles relating to the binding testimony of the Sunnah, that is, the Traditions and narrations that have reiterated the words, actions and silent assertions of the Prophet and the Imams.

One is the question of the binding testimony of the khabar al-wapid, the Single Report, and the other is the question of the Traditions that are opposed to the Q!lr'an and that must be rejected. These two questions are called, respectively, the Single Report (khabar al-wapid) and the Unification and Preference (ta'adul wa tarajip).

The Single Report (khabar al-wapid)

The Single Report is a Tradition that has been reported from the Imam or Prophet but by one person only, or that is reported by more than one person but on the other hand has not transmitted by so many different people that there is a possibility of the Tradition's being in any way wrong (tawatur). Now, can such a Tradition be used as a basis for deducing the Sharl'ah or not?

The u,5iiliyyfn 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 Q!lr' an, in which we are told, 'If a wicked man comes to you with news, examine' (49:6). This means that we are to be sceptical of news delivered by a wrongdoer and should research his report and unless we can definitely establish its validity, we must not give it credence or put its recommendations 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.'

Unification and Preference

Now we come to the issue of opposing Traditions. Often it happens that various Traditions on the same subject are opposed to each other, for example, whether we should recite the dhikr (remembrance) of the third and fourth units of prayer (rak'ats) -called the tasbifJat al-arb'ah -three times in each unit or whether one time is enough. Some Traditions suggest that it must be said three times, while in another Tradition once is deemed to be enough. Similarly, there are conflicting Traditions about whether it is permissible to sell human manure.

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 the subject at all? Or do we have the option of acting according to whichever of them we like? Or are we to act with caution and thus to the Tradition that is nearer to caution (which, in relation to our two examples would mean, respectively, reciting the dhikr prayer three times, and accepting the prohibition on selling human manure)? Or is there another way of acting?

The ulama' of the principles have determined, first, that 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 prefet:ence over the other in so~e way, such as in the reliability of the chain of narrators, in its credibility among earlier ulama' who may have had some other testimony that we have missed, or in its being clearly not due to taqiyah,6 and the like, we have the option to act according to whichever of them we like.?

There are Traditions that themselves contain instructions on what to do in the case of contradicting Traditions. They are called Corrective Reports (al- akhbar al'ilajiyyah).

The ulama' 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, whereas the issues of the Single Report and of the con tradicting testimonies concern the Sunnah. In the next section we shall look at issues in the principles that are common both to the Book and to the Sunnah.

Issues Common to the Book and the Sunnah

The discussions common to the Book and the Sunnah consist of the following:

The discussion of imperatives (awamir)

The discussion of negative imperatives (nawahz)

The discussion of generalities and particularities ('am wa kha,5)

The discussion of unconditional (mutiaq) and conditional (muqayyad)

The discussion of tacit meanings (mafahim)

The discussion of the abstract (muJmal) and the clear (mubayyan)

The discussion of the abrogator (nasikh) and the abrogated (mansukh)

We shall look at these briefly in turn.

1be 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, for example '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. They include such questions as whether or not the imperative is proof that the action is obligatory (wajib) or that it is desirable or neither. Does the imperative signify that the verb is to be done once or a number of times?

For example, the Q!lr'an 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'. (9:1°3) 'Prayer', in this holy verse, means to 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 whether or not the imperative is an indication of immediate obligation. Is it obligatory that, straight after taking the divine tax(zakat), prayer is to be offered for it, or is it permissible to leave an interval? Third, is one prayer enough or must it be performed repeatedly?

Such matters are all discussed in detail in the study of jurisprudence and the principles.

17Je Discussion of Negative Imperatives (nawahi)

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, which in Arabic becomes a nahy. Both in the Book and in the Sunnah there are many phrases that are negative imperatives.

Similar questions arise here to those on the subject of the imperative. Is the negative imperative evidence that the object of the verb is forbidden (param) or that it is not forbidden but merely undesirable (makrii/J)? Likewise, does the negative imperative indicate permanence, i.e. that the action of the verb must never be done or that it is to be refrained from only temporarily?

Discussion a/Generalities and Particularities ('am wa kha~)

In the civil and penal laws of human society, a general and common law exists that applies to all, as well as 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 interpreted as mutually contradictory? Or, since one of the two laws is general and 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 Q!lr'an that divorced women must wait after their divorce for three monthly periods before they are free to remarry. In reliable Traditions, however, we are told that if a woman marries a man and divorces before marital relations (i.e. sexual intercourse) occurs between them, 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 Qur'an and therefore reject it and disregard it, as we have been instructed? Or are we to assume that this Tradition in reality expounds the Q!lr'anic ayah for us, that it has the rank of an exception in certain of the particular circumstances, and that the Qur'an is in no way contradicted by it?

It is the second view that is the correct and valid one, of course, for we are used to having a law introduced in the general form and then having the exceptions explained. We are not used to having the exceptions explained before the law is introduced, and the Q!lr'an addresses human beings in the terms and language that they understand. In another place the Qur'an itseU deems the Traditions of the Prophet to be reliable. 'What the Prophet gives you take! And what he has prohibited, avoid!' 69:8). In these types oj circumstances, we accept that particularities have the rank of exceptions tc generalities.

Unconditional (mu{iaq) and Conditional (muqayyad)

The question of conditional and unconditional is similar to the question 0 generality and particularity, but generality and particularity are relevant to thl applicability of the law, while conditional and unconditional are relevant t< the different circumstances and qualities of the law itself. The general and thl particular are relevant to the applicability of and the exemptions from the law

The question of unconditional and conditional, however, is related to the essence and nature of the duty that the dutiful must perform. If the duty has no particular condition attached to it, then it is unconditional, and if it has a particular condition, it is conditional.

In the example we gave above, 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 regards whether the Prophet was to supplicate for them loudly or quietly, in company or alone, is unconditional.

If we have no other proof or reason provided by the Qur'an or reliable Traditions that set 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, we then interpret the unconditional as the conditional.

1be Discussion of the Tacit (mafahtm)

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 takes the place of the following two sentences, namely, 'If you come with me to my house I will give you that book' and '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 u~iiliyyfn have recognized the binding testimony of the Single Report, when the narrators are all just from the holy ayah of the Qur' an, which tells us, 'If a wicked man comes to you with news, examine'.

This recognition comes from the tacit meaning of the ayah. The words of the ayah tell us only that we are not to put into effect the news of an unjust person 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.

17Je Abstract (mujmal) and the Clear (mubayyan)

The discussion of the abstract and the clear has less importance. It simply means that sometimes a phrase in the language of the Holy Prophet is ambiguous for us and its meaning unclear, for example the wordghina (music), while its explanation is to be found in another proof from the Q!lr'an or the Sunnah. In such cases the ambiguity of the abstract is cancelled by the clear.

17Je Abrogator (nasikh) and the Abrogated (mansiikh)

Sometimes in the Qur'an and the Sunnah we come across an instruction that was temporary, meaning that after a time a different instruction was given, which has cancelled the first.

For example, the Holy Qur'an first tells us that if married women commit adultery they are to be confined to their houses until they die or until God establishes some other way for them. Then, the Qur'an indicates that the way that God establishes for them is the general instruction that if a married man or a married woman commits adultery, the guilty person is to be executed.

Or, for example, a first instruction was given that in the holy ~onth of RamatJan, men must not have intercourse with their wives, even at night. This rule was then cancelled and permission was given.

It is essential for a jurisprudent to distinguish the abrogator and the abrogated. The study of principles has a wealth of discussion and detail on the issue of abrogation.

Consensus and Reasoning

Consensus

As we saw above, one of the prime sources of jurisprudence is consensus. In the study of principles, the questions of the binding testimony of consensus, the proofs that it is a binding testimony and the pursuance of the method by which proofs are derived from it are all subjects of debate.

One of the topical points related to consensus deals with the binding nature of the proof. The ulama' 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 deemed to have collectively the same status as a Prophet and to be faultlessly free from error. The speech of the whole nation has the same rank as the speech of a Prophet, and the entire nation, as soon as they come to the same view, are faultless, i.e. immaculate.

According to this view, 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 coming definitely from the Prophet. Second, 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 an infallible is formed from a group of people who are fallible. Third, what 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 ulama' -of the nation. Furthermore, it is not even the consensus of all the ulama' of the nation, but the consensus of the ulama' from one sect of the nation.

Here is where the ShI'ites do not maintain the same principle of consensus as the Sunni ulama'. ShI'ites maintain the binding testimony of consensus only insofar as it is the means of discovering the Sunnah.

With regard to the ShI'ites, whenever there is no proof in the Book and the Sunnah about a certain subject, but it is known that the general body of the Muslims or a numerous group of the companions of the Prophet or- the companions of an Imam who never did anything except in accordance with the divine instructions all used to act in a particular way, then we must assume that in those times an instruction of the Sunnah existed of which we are unaware.

Acquired Consensus and Narrated Consensus

Consensus, whether as accepted by our Sunni brothers or as considered valid by Shi'ites, is of two types, acquired and narrated. Acquired consensus means the consensus of which the muJtahid has himself directly acquired knowledge as the result of minute research into history and the views and opinions of the companions of God's Prophet, of the companions of the Imams or of the people close to the time of the Imams.8

Narrated consensus is the consensus abou t 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, is not to be 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. This means that, by means of reasoned deduction and logic, we discover that in a certain instance a certain necessary law or prohibitive law of the Shari'ah exists, or we discover what type of law it is and is not.

The binding testimony of reason is proven by the law of reason ('the sun is shining, hence the proof of the existence of the sun', meaning that with the application 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 because of reason. How could it be that in the view of the Shari'ah reason is not to be considered 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 Shi' ites, is that the Shari' ah of Islam exists in relation to the best and the worst interests of human beings. That is, each command (amr) of the Shari'ah arises from the necessity of meeting the best interests of human beings and each prohibition (nahy) of the Shari'ah ar(ses 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 their best interests, wherein lie their happiness and prosperity, has made a chain of commands obligatory (wajib) or desirable (musta/Jab) for them. And so as to keep human beings away from all that that 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 reasoning human beings had full cognizance of those best interests and those forms of corruption, they would devise the same laws as have been introduced in the Shari'ah.

This is why the practitioners of the principles and also the mutakallimin 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 no law of reason exists, 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, by narration or otherwise, but reasoning traces with absolute certitude the particular wisdom of the other judgements of the SharI'ah, then it automatically discovers the law of the SharI'ah in this case too. In such an instance, reasoning forms a chain of logic. First, in such and such a case, there exists such and such a best interest that 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 that that best interest be met. Third, in such 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, in the narrated testimonies of the Qur'an and the Sunnah and consensus, there is nothing about opium for good or ill, yet human beings have experienced opium addiction and thus have obvious proof of its corruption. Thus, with our reasoning and knowledge, and on the basis of 'a form of corruption that is essentially to be avoided' in the view of the SharI'ah, we come to the realization 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 judgement of reasoning, will establish the law that smoking is forbidden according to the Divine Law.

The u~uliyyfn and the mutakallimzn 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 on condition that reasoning traces, in an absolute, certain and indubitable way, those best interests that must be protected and those worst interests or forms of corruption that must be avoided. The word 'reasoning' cannot be applied to opinion, guesswork and conjecture. Analogy falls into the same category and must be discounted, for it is more akin to opinion and imagination than to reasoning and certitude.

On the other hand, when reasoning has played no part in the forming of a particular law and we find that that 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. Thus, reason realizes the law of the SharI'ah by realizing the best interests of human beings; and the reverse is also true, namely, that reason realizes the best interests of human beings by realizing the law of the Shari 'ah.

Thus, whatever is a law of reason is a law of the Shari'ah and equally 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 a law made by a lawmaker of sanity and intellect naturally entails a chain of essentials that must be judged according to reason, to see if, for exam ple, that law necessitates the drafting of a new law or the abrogation of a an existing law.

For example, if a command is made, such as the bajj and the form of worship to be performed there -and the ball necessitates a chain of preparations, including acquiring a passport, buying a ticket, vaccinations and currency exchange -does the fact that the ball is obligatory make these preparations obligatory as well or not?

The same question can apply to the things that are forbidden. Does the prohibition of a thing demand that its preparations also be forbidden?

Another issue is as follows. A person is not able to do two obligatory things at the same time as they must be done separately. For example, it is obligatory to say one's ritual prayers but it is also obligatory to clean the mosque if it has become unclean with blood, urine, etc. So the performing of one of these two duties demands the neglect of the other. Now, does one command necessarily contain the prohibition of the other? Do both the commands include this prohibition?

If two things are obligatory but they cannot both be done at once, it is our duty to perform whichever of the two is more important.

This brings us to another issue. Does our obligation with regard to an important duty lapse altogether with our attention to a more important duty? Suppose two men are in danger of their lives and it is within our means to save only one of them, and one of them is a good Muslim who works for others while the other is a corrupt man who causes only trouble to others, but whose life is nevertheless sacred. Naturally, we must save the Muslim who is good and who helps others and whose life is therefore more valuable to society than the life of the other. That is, to save him is more important; yet it is also important to save the life of the trouble-maker.

In such examples, it is reasoning, with its precise calculations, that clarifies our specific duties. In the study of principles these and similar issues are discussed and the way of properly determining the answers is set out.

From what has been said so far, it should be clear that the issues of principle are all divided into two parts, the 'principles of deducing' and the 'principles of application'. The principles of deducing are in turn divided into two parts, the narrated -which derive from the Book, the Sunnah and consensus -and the reasoned.

The Principles of Application

Jurisprudents, as we have seen, refer to four sources for deducing the laws of the Sharj'ah. Sometimes the jurisprudent is successful in his referrals and sometimes not. That is, sometimes (of course, predominantly) he attains the actual law of the Shatj'ah at the level of certitude or reliable probability, which means a probability that has been divinely endorsed. In such cases, the duty becomes clear and he realizes with certitude or with a strong and permissible probability what it is that the Sharj'ah of Islam demands. Occasionally, however, he is unable to discover the duty and the Divine Law from the four sources, and he remains in doubt and without a defined duty.

What should be done in such cases? Has the Legislator of Islam or reason or both specified a certain duty in the event that the actual duty is out of reach? And if so, what is it?

The answer is, yes, such a duty has been specified. A system of rules and regulations has been specified for such circumstances. Reason too, in certain circumstances, confirms the law of the Sharj'ah, for the independent law of (aware) reasoning is the very same as the law of the Sharj'ah, or in certain instances it is silent, meaning that it has no independent law of its own and accords with the Sharj'ah.

In the part of principles that contains the principles of deducing we learn the correct and valid method of deducing the Sharj'ah and, in the part concerning the principles of application, we learn the correct way of benefiting from the rules that have been introduced for the kind of situation mentioned above, and of putting them into practice.

There are four general principles of application that are used in all the sections of jurisprudence:

The Principle of Exemption (bara'at) The Principle of Caution (iptiyaf) The Principle of Option (takhyyir) The Principle of Mastery (isti~pab)

Each of these four types of principles operates in a special circumstance. Before looking at these, let us first 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 Caution means that we must act with caution, i.e. in such a way that if a duty actually exists as a law, we must ensure that we have performed that duty. The Principle of Option means that we have the option to choose whichever one of two things we like, and the Principle of Mastery means that what existed remains in its original state or has precedence over any doubt about it, and the doubt is ignored. Now we shall consider the circumstances in which these principles apply.

Sometimes a jurisprudent is unable to deduce the law of the Sharl'ah and to trace a particular necessity and thus remains in a state of doubt. This doubt may relate to some existing body of knowledge. For example, it may be doubted whether, in this age of the physical absence of the Imam, the special congregational prayer must be said on Fridays or the normal noon prayer - doubt exists about both the Friday prayer and the noon prayer, in the light of the general information that one of the two is definitely obligatory. Alternatively it may be doubted whether, in the age of the Imams' absence, the prayer of rid-iii,r in congregation is obligatory. In this second case the doubt is a 'primary doubt' (shak badwi) and not a doubt linked to something that is known.

So the doubts of 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 with caution, namely, to perform both possible duties, or it is not possible to act with caution. If caution is possible, one must apply it, and both of the possible duties must be performed. Such an instance calls for the Principle of Caution. Sometimes, however, caution is not possible, because doubt exists between the obligatory and the forbidden. We doubt, for example, in the absence of the Imams, whether the performance of certain duties is peculiar to the Imam and forbidden to us or whether it is not peculiar to the Imam and is obligatory for us. Here it is self-evident that the way of caution is closed, and instead we must have recourse to the Principle of Option, which means that we may choose to do whichever of the options we please.

Assuming, however, that our doubt is a primary doubt not linked to any general knowledge, the fact is either that we know the previous condition and our doubt relates to whether the previous law stands or has been changed, or that the previous condition not been established. 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 demands hair-splitting exactitude, failing which he will make mistakes.9

Of these four principles, the Principle of Mastery has been uniquely established by the Sharl'ah, and reason is subservient to it, having no independent rule of its own, but the other three principles are principles of reason, which the SharI'ah has confirmed.

The justification of the Principle of Mastery consists of a number of reliable Traditions which take the form, 'Do not reverse a certitude with a doubt'. From the content of these Traditions and what precedes and follows this sentence it is clear discerned that what is meant is exactly what jurisprudence calls 'mastery'.

On the subject of the Principle of Exemption similarly there exist many Traditions, of which the most famous is the padith ur-rafi.

The padith ur-rafi 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 u,l"iiliyyin have had numerous discussions about this Tradition and about each of its points, and of course the part that sanctions the Principle of Exem ption is the first line, which states that whatever we do not know has been 'taken from' us, thus the obligation is lifted from us.

The mujtahids are not the only ones who may use the four principles as aids to understanding the laws of the SharI' ah. People who are not mujtahids and who must therefore imitate (taqlitl) a mujtahid can also benefit from them when they have doubts.

For example, suppose that a baby boy suckles from a woman other than his mother and that when the boy grows up, he wants to marry the daughter of that woman; it is not known whether as a baby he drank so much milk from that woman's breast that he is deemed to be 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 is deemed to be her son and the brother of her daughter, whom he is thus forbidden to marry). This instance calls for the Principle of Mastery, because before the boy drank the woman's milk he was not her 'wet-nurse son', yet 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 have performed the minor ablution obligatory before we say the ritual prayer or are permitted to touch the Qur'an, and we then doze off and subsequently doubt whether or not we actually fell asleep (in which case the ablution becomes void), by the Principle of Mastery, we conclude that the ablution was valid. In the same way, if we have washed our hands and we then doubt to whether they are still clean or have become najis (unclean), by the Principle of Mastery we conclude them to be clean. If, however, it was najis and we doubt whether we have cleaned our hands or not, by the Principle of Mastery we conclude that they are still unclean.

Let us consider some examples of the other principles. Suppose there is a liquid is in front of us and we doubt whether or not it contains alcohol, as some medicines do, the situation calls for the Principle of Exemption, and there is no obstacle to our drinking that liquid. If, however, we have two glasses of medicine and we know that alcohol is present in one of them, the Principle of Caution is called for, and we must not drink either.

Now suppose that we are at the side of a road in the middle of a desert and to follow the road in one direction definitely involves risking our lives, while to follow the road in the other direction means we will find safety; but we do not know in which direction lies safety and in which direction lies the risk to our lives. Here we are presented with two laws. One is the obligation to save life and the other is the prohibition against risking it. In which direction should we travel? This situation calls for the Principle of Option, and we may travel in whichever direction we like, and if we choose the wrong direction, we are blameless.

Notes

1. These treatises (Risa/ah) are works in which the mujtahid states his verdicts on almost all the things that can affect daily life.

2. Translator's note: The weakness of this view can be appreciated when it is realized that many; of the Traditions r~corded in the reliable books, i.e. books compiled by reliable men, contradict each other, which naturally indicates that the only logical way to distinguish the holy words from the false ones is by examining the chain of narrators. It should also be borne in mind that for a number of reasons, such as lack of time for research or of knowledge of transmitters, it may not have been possible for the reliable compilers themselves to make the necessary distinctions.

3. Consensus is discussed further below. 4. His book is called Ta'sis ash-shi'ah' u/iim a/-is/am. 5. This ayah and such 'tacit meanings' (mafahim) are further discussed in the next section.

6. Taqiyah is the legitimate practice of concealing one's faith in times of danger - sometimes by adopting the practices of a different faith -which was often necessary during the times of the Imams.

7. More light is thrown on this subject under the treatment of the principles of jurisprudence.

8. Translator's note: Of course the Shiite view is that the time of the Imams will last as long as mankind itself, what is referred to here is the era of access to the Imams.

9. Translator's note: Ifhe were likely to make many mistakes he would naturally not yet be regarded as a mujtahid at all.