Sciences and Key Perspectives (Volume Two)

Ayatollah Nekounam's books

Sciences and Key Perspectives (Volume Two)

(Quds Sirra)
By His Eminence, Ayatollah Mohammad-Reza Nekounam

Cataloguing Title: Nekounam, Mohammad-Reza, 1327 –
Title and Author: Sciences and Key Perspectives, Volume Two / Mohammad-Reza Nekounam
Publication Details: Tehran: Sobh-e-Farda Publishing, 1399 (2020)
Physical Description: 3 Volumes
ISBN: 978-600-397-075-5
Library Classification: Dewey 62/1fa 8

Chapter Six: Principles of Jurisprudence and Its Scientific Foundation

Introduction

Principles of jurisprudence (Usul al-Fiqh) is an auxiliary and instrumental science for systematic reasoning and deriving legal rulings, which serves as the logical framework for jurisprudence in terms of signification, evidence gathering, and establishing valid religious proofs for the Mujtahid (jurisprudence scholar). Therefore, Usul al-Fiqh is a technical discipline essential for developing a sound system of deduction, providing the methodology for legal reasoning and inference.

Historically, Usul al-Fiqh has evolved over four major periods:

A: From Sheikh Tusi (Abu Ja’far Mohammad ibn Hassan Tusi, d. 460 AH) and Allama Hilli (d. 726 AH), authors of ‘Iddat al-Usul and Nahj al-Wusul ila ‘Ilm al-Usul, to Sheikh Jamal al-Din Hassan (d. 1011 AH), author of Ma’alim al-Din.
B: Sheikh Mohammad Taqi Isfahani (d. 1248 AH), author of Hidayat al-Mustarshidin, and Mirza Qummi (d. 1231 AH), author of Qawanin al-Usul.
C: Sheikh Ansari (d. 1281 AH), author of Faraid al-Usul (known as Al-Rasa’il), Akhund Khurasani (d. 1329 AH), author of Kifayat al-Usul, and Ayatollah Zia al-Din Iraqi (d. 1361 AH).
D: More recent commentators such as Ayatollah Khoei (d. 1413 AH).

Currently, the most significant text in Usul al-Fiqh is Kifayat al-Usul, and the leading scholars of this discipline are those from the third period.

Subject of the Science of Usul

To define the subject of a science is crucial for determining the issues addressed within that field. In real sciences, the subject matter is defined as a set of intrinsic properties, whereas in formal sciences, it pertains to the goal or purpose of that science. Therefore, in formal sciences, various issues contribute to achieving a single purpose.

In real sciences such as philosophy or mathematics, the subject is discussed in terms of its essential and inherent qualities. However, in Usul al-Fiqh, the subject is understood in terms of its purpose, focusing on anything used as a valid argument in the process of deriving legal rulings and duties in Islamic jurisprudence. The principles and results obtained in Usul al-Fiqh serve as the premises for reasoning in various jurisprudential texts and chapters.

Akhund Khurasani describes the subject of each science as the exploration of its intrinsic characteristics, which are inseparable from the issues of that science. He states that the subject of Usul al-Fiqh pertains to the general principles used in legal reasoning and inference.

Distinguishing Usul al-Fiqh from Other Sciences

The distinction of Usul al-Fiqh from other disciplines lies in its end goal: the use of established propositions and valid arguments in deriving legal rulings. This allows it to touch on various subjects from other fields such as linguistics, logic, theology, and philosophy. However, what makes these subjects specific to Usul is their role in the reasoning process, preventing any overlap with other sciences.

The Structure of Usul al-Fiqh

Over time, Usul al-Fiqh has expanded, incorporating both relevant and occasionally irrelevant discussions. The core issues and their logical organization consist of four major categories:

Semantics and the Signification of Words
Independent Rational Principles and Necessary Connections
Authority and Juridical Probabilities, Legal Validity, and Claims
Practical Principles in the Absence of Valid Juridical Evidence and Doubt

The system of Usul al-Fiqh has been structured into three main divisions: Linguistic Principles, Jurisprudential Arguments, and Jurisprudential Principles. Linguistic principles deal with the semantics of terms; Jurisprudential arguments address the sources of reasoning, while Jurisprudential principles focus on the four practical rules applied in jurisprudential discussions.

Definition of Usul al-Fiqh

Usul al-Fiqh refers to the set of formal principles that govern legal reasoning and the deduction of Islamic rulings. It addresses all related rules and discussions concerning Islamic law, both theoretical and practical, and serves as the analytical tool for understanding and applying these laws.

The principles of jurisprudence (Usul al-Fiqh) in relation to semantics should focus primarily on the “word,” making it the foundation of its semantic discussions. The word upholds the purposeful establishment and the structured relationship between a term and its meaning, respecting the established connection between them. Thus, the study of words begins with the pursuit of understanding the region of their establishment (the “wada‘”), ensuring the full grasp of their meaning. To comprehend the meaning of a word, it is essential to analyse and transform it into both term and meaning. Every word signifies a particular meaning. Once the meaning of the word is identified, through signs that inform its real meaning and designated object, the next step is to determine the nature of its implication.

Implication, in contrast to narration, concerns the relationship between the word and its meaning. It involves a process of obligation that requires the transition from sign to meaning. The word functions as the signifier (dal) while the meaning is the signified (madloul). This obligation can either be inherent, absolute, and intellectual (i.e., cause and effect, which cannot be violated, meaning one is the cause of the other, or both are the effects of a single cause) or non-causal and non-intrinsic, such as a natural or conventional relationship within language. If the relationship between the word and its meaning were purely conventional, there would be no need for semantic analysis. Non-verbal implications, and the use of signs in the context of the Occultation period, are not relevant to jurisprudential discussion.

In natural implication, deviation is possible. Thus, a consistent and necessary association is not guaranteed, nor is it true that such relationships are necessarily causal. Implications in divine revelation or jurisprudence are not to be regarded as entirely arbitrary either, for the connection between a word and its meaning has a relevance or appropriateness to it. Though human beings may not fully grasp the exact causal relationship, they can still comprehend and utilize these associations within the framework of divine discourse, particularly when it comes to the linguistic structure of the revealed texts. Hence, the implication of words should be understood as a form of learned linguistic and scientific analysis, much like the empirical science of categorisation and description.

The cognitive implication—beyond its conventional establishment—includes both the communication and intention behind the usage of words. It is formed within the context of the speaker’s intention, and it also carries an element of will, conveying not only the speaker’s intent to communicate but also the genuine desire or goal of the speaker. These implications may either be direct, total, and corresponding to the whole meaning, or indirect, partial, internal, or involving meanings that are outside the subject matter, with varying implications depending on the nature of the word.

In the art of language creation, understanding the various types of implications is a fundamental principle of intellectual thought and cultural standards, forming a basis for assessing scholarly accuracy and the precision of academic discussions. Discussions related to linguistics, especially those dealing with implications, should focus on their doctrinal and descriptive aspects, not on common usage, reports, or memorised, didactic, or narratorial forms of communication. Without a solid understanding of the word’s implications, especially the obligation-type implications of words, one risks falling into superficiality or negligence. Therefore, the first step in distancing oneself from literalism or superficial interpretation is to engage in semantic analysis. Literalists tend to focus on the simple implication of words, ignoring their deeper types of implication and the detailed study of words.

As we mentioned, a word comprises both the signifier (the term) and the signified (the meaning). The process of establishing a word’s meaning is a mental exercise, involving both the transition from the term to its meaning, and the meaning itself. Even the term and its meaning, as well as the very signifier, are mental concepts, which, due to their close relationship with truth, are reflected by the aware mind. Thus, the relationship between a word and the external world becomes an objective reflection, contingent upon the intellectual awareness and purity of the individual.

In the context of establishing meaning, the meaning is determined only for the purpose of its proper establishment, and neither metaphor nor error belongs to the realm of original establishment. However, in the realm of usage, a word may be employed either in its true sense, metaphorically, or incorrectly. In the case of metaphoric usage, a natural association governs the shift in meaning, though a contextual clue is necessary to shift the mind from the word’s literal meaning to its metaphorical interpretation. Without such a clue, using a term in a meaning outside its original intent constitutes an error. Here, we do not engage in the metaphoric usage of words, as metaphorical applications do not hold authority in religious texts, jurisprudence, or rational discourse. This principle is presented here as a primary issue, discussed in further detail in our comprehensive writings.

We maintain that a word cannot be used for multiple meanings and that a verbal ambiguity (equivocation) does not arise in the field of divine revelation or jurisprudence. What may appear to be a case of verbal ambiguity is, in fact, a matter of shifting contextual associations of meaning within ordinary language use, rather than within the established linguistic framework. If a word is designated for a general concept with multiple instances, we refer to this as “semantic sharedness,” where the concept serves as a logical or philosophical abstraction.

The true meaning of a word may either be determined by the original linguistic community or by divine decree in a specific religious context. If, in usage, the true and metaphorical meanings of a word are confused, and it is unclear which meaning is being employed, the only indicator of its true meaning is the principle of “tabadour” (clear instinctive association). In jurisprudential discussions, it is asserted that the specification of the word by the original linguists, the intuitive understanding, and its association to a particular context are indicators of truth. The first criterion is based on the legitimacy of the word established by linguists, which can be used as a reliable source to confirm the true meaning of the word.

In the context of linguistic application, correctness and coherence in meaning are crucial. A word must be applied in accordance with its established meaning across various instances and contexts. Metaphorical uses of words, when they adhere to established relationships, are not inherently invalid, but they require specific contextual markers to ensure their proper application. Otherwise, the application of a term in an unintended sense is erroneous.

In terms of recognizing the true meaning of a word, the intuition of the native speakers and semantic consistency serve as valid tools for accurate understanding. Without proper application of these criteria, one cannot reliably claim the true meaning of a word.

The true meaning of a word may be certain or uncertain. If doubt arises about the true meaning of a word, and this uncertainty cannot be resolved through linguistic or scriptural investigation, one cannot rely on principles like generality, unrestricted applicability, or other fundamental assumptions. In such cases, the true meaning must be confirmed through intuition and scholarly investigation.

Thus, until doubt regarding the true meaning is dispelled, one cannot assert principles like the authenticity of generalities or unrestricted expressions. The legitimacy of the linguistic appearance does not require further justification, and it serves as a reasonable method for conveying meaning and intent.

Given the above explanation, comparing the nature of the signifier and the signified leads to four possible scenarios: a specific signifier and a specific signified, where the creator has assigned a particular meaning and a specific word to it, as in the case of personal names. This can both be possible and actualized.

A general signifier and a general signified, such as a genus or species.

A general signifier and a specific signified, where the meaning is conceived as general, but the signified refers to individuals within that general category, rather than to the general category itself. This is evident in demonstrative names, pronouns, question words, and other forms of interrogation, where the union is of the type “unrestricted” (meaning it can combine with various conditional elements without restriction). The general, when not considering external characteristics, is the specific.

The discussion of this case encompasses the entire judgment of the previous categories, as it includes the first two parts and also refutes the possibility of the fourth.

The question here is whether the relationship between the general and specific can be utilized. In this case, the meaning conceived is general, but the word does not directly refer to it. Instead, the word is assigned to specific instances of that general meaning. Anything that carries a referential or relational meaning, and cannot be conceived alone without the duality of its reference to both the subject and the predicate, falls under this category. When a relational meaning is considered in isolation, it is general, but in contrast, the nominal, independent meaning is what relates to it as a general and specific category or as the title and its referent. In usage, depending on the context, it signifies the specific meaning. Thus, the initial conception of the signified is general, depicting the essence of the individuals abstractly, without considering their specific features, yet the word is assigned to their specific, individual instances. This specific meaning can then be applied to convey its essence as a title.

Relational meaning possesses an identity, even though it is not inherently independent or substantial; however, this mental identity only manifests when considering the context and does not achieve independence. This type of meaning is not to be confused with an accident, which implies a relational appearance that, although requiring a subject, has its inherent, independent, and substantial meaning. A relational meaning, like a prepositional particle, is inherently dependent on two entities and cannot exist in isolation. In contrast, an accident depends only on its subject.

At times, the primary meaning, which is nominal, is presented as a general and abstract relational meaning. These examples are used loosely for educational purposes and do not hold the rigorous precision of philosophical or intellectual analysis. A meaning is either nominal, relational, or relational in a secondary sense. Relational meanings are intermediary tools or personal links between two terms, while the original meaning is general and cannot be relational. A primary meaning is independent; if a meaning is inherent, it remains nominal and not relational, contrary to the assumption that anything requiring a secondary reference should be considered an accident.

Although the relational nature of primary meanings might suggest a form of prepositional or relational link between subject and predicate, it does not imply that these are purely relational in nature or merely represent a logical link. A word, despite lacking independence, still holds a meaningful identity, unlike grammatical markers that simply indicate quality without conveying meaning. Thus, primary meanings also possess a specific assignment and identity. However, they do not fall within the category of a relational word, which has no inherent meaning, nor do they fit the classical distinction between grammatical and non-grammatical words.

It is important to note that the popular view, particularly among later scholars such as the author of “Al-Fusul,” considers the signifiers and signifieds of prepositions as general, with their specificity emerging in usage. Some, like Akhund, regard both the signifier and the signified of prepositions as general.

Likewise, when considering the structure of derived words (morphologically modified terms), the assigned meaning is generalized to the form, but the actual subject relates to a specific individual or concept within that general meaning, making it a typical rather than individual case. In contrast, individual usage assigns meaning to the specific details of a word’s form, but the general nature of the term is what is reflected in its linguistic structure. For example, the structure of a verb or compound, whether it represents a complete or incomplete action, denotes a generalized category, often with specific implications only in context.

The philosophy behind the multiplicity of expression techniques stems from the diverse human needs that, in turn, require the development of specific structures for reporting or expressing commands, desires, and other intentions. This gives rise to an elaborate system of expressive tools, ranging from general to specific, and applicable to various actions and intentions. The general position of a signifier also requires specific applications in various linguistic forms to convey meaning. As previously explained, the relational aspect of a word cannot be universally applied as an independent concept; thus, meaning cannot be derived purely from the expression itself but must rely on contextual significance.

The obligation (wujub) is classified according to its type and quality into the following categories:

Absolute Obligation and Conditional Obligation
Determined Obligation and Indeterminate Obligation
Self-imposed Obligation and Other-imposed Obligation

According to the characteristics of the subject and the duty, it is classified into the following categories:

Religious and Instrumental Obligation
Principal and Subsidiary Obligation
Independent Obligation and Implicit Obligation

In terms of conditions, it is classified as follows:

Unconditional and Conditional Obligation
Actual, Suspended, and Future Obligation
Intrinsic and Accidental Obligation

According to time and temporal factors, it is classified into:

Temporary and Non-temporary Obligation
Wide and Narrow Obligation
Immediate and Non-immediate Obligation

According to the source of the obligation, it is classified into:

Divine and Rational Obligation
Authoritative and Directive Obligation
True and Procedural Obligation

An obligation is either absolute or conditional. Its definition is linguistic, conventional, and clear. Absolute and conditional are relative, not inherent characteristics. What is meant by obligation here is the wujub (obligation), which is either absolute or conditional, not the obligation itself, which, by loose convention, is ascribed to the subject.

The condition in a conditional sentence is, according to the common understanding of such a sentence, a restriction for the predicate and the relation between the condition (antecedent) and the result (consequent). The condition is the attachment of the antecedent to the consequent, and the restriction is related to the request of the proposition and obligation in the form of commitment (in a way of condition, not suspension, which is a simple commitment). It is not attached to the subject of the punishment or the material, i.e., the obligation itself or the sentence, but to the conditional sentence as a whole, including the form and substance. The sunset, for example, relates to prayer in that it is a condition for the obligation to be fulfilled, and the prayer is not valid until the sunset has passed.

If the condition is a restriction on the form and the obligation, the sentence “If Zayd comes, you must honour him” means: “Upon the arrival of Zayd, honouring him becomes obligatory.” A religious example is the obligation of Hajj being conditional upon the ability to perform it. In this case, the obligation is conditional on the arrival of the condition. If the condition is a restriction on the material, the meaning would be: “Honouring Zayd is obligatory when he arrives.” Here, the obligation is unconditional, but the honouring is conditional on Zayd’s arrival. A practical example of this would be the purification of clothes for prayer, where the condition of cleanliness is attached to the prayer itself. The form carries the obligation, and the material is the act itself.

Real laws are based on benefits and harms, either in the laws themselves or in their objects. Sometimes the pronouncement of a law, i.e., the form of the obligation, is delayed due to an obstacle, until the conditions for its enforcement are met. A conditional obligation is such that the necessity of its object depends on the removal of obstacles and the fulfilment of its requirements. The conditional sentence commonly implies a limitation on the form and its condition is legally binding.

Creation and Cause of the Obligation
Creation (in the sense of an obligation) and the cause (which is the origin of the law) are distinct in terms of their validity. Creation refers to the mental and formal act of imposing an obligation, whereas the cause relates to the physical action or subject to which the obligation applies. The relationship between these two is not causal in a real sense, as creation is based on a mental declaration, while the relationship in a conditional sentence is one of relative attachment and is thus more interpretative in nature. The relationship between the request and the form, though figuratively linked to creation, is not a causally real one.

Obligation: Either Real or Suspended
In the study of principles, an obligation is considered either real or suspended. Suspension is not permissible in contracts, as it would render the contract invalid, unlike conditions, which involve reciprocal commitment without invalidating the contract.

A real obligation, once the conditions are established, requires the immediate fulfilment of the task. A suspended obligation, on the other hand, is one where the obligation is imposed, but the fulfilment is contingent on a future time or event. For example, the obligation to stand at Arafah during Hajj is conditional on the arrival of the Hajj season. The difference between a conditional and a suspended obligation lies in the fact that in the former, the obligation does not exist until the condition is fulfilled, while in the latter, the obligation is present but only activated at a certain point in the future.

Self-imposed or Other-imposed Obligation
An obligation can either be self-imposed (directly stemming from an inherent need or directive) or other-imposed (derived from the requirements of another entity). The latter is often secondary and contingent on an initial primary obligation.

Obligation and its Relation to the Impossible
This issue pertains to theological discussions, not jurisprudential ones. It is generally impossible for an obligation to be imposed upon something that cannot be performed, as ability is a condition for the imposition of any task. An obligation that cannot be fulfilled cannot exist in the active state; however, an obligation may exist as a theoretical or potential task without being required for immediate execution.

The Nature of Obligations
Obligations are imposed on the nature of actions, which represent a category of individuals. The duty does not attach to the individual entities themselves but rather to the general nature of the action without regard to specific individuals. This conceptual difference avoids conflating philosophical and legal categories. The nature of an action is thus considered without regard to its individual manifestations, which contrasts with mental categories of action or the intellectual understanding of duty.

If a temporary obligation is not fulfilled within its designated time, it does not imply that it must be performed outside of its time or that it requires a subsequent obligation for its performance. The obligation of a duty is confined to its prescribed time, and outside of this, it does not indicate a demand for its fulfilment. The requirement of its subsequent performance (qada) must be supported by independent evidence. In this case, the presumption (istishab) of the previous obligation does not apply, because the subject outside the time differs from the subject of the temporary obligation.

The Matter of an Intermediary Command

When a master instructs someone to command another, does this intermediary instruction imply the master’s command, or not? In this case, the master’s intent could be either to test whether the intermediary will relay the command or to test whether the second person will accept it, or the intermediary could be significant for the action itself, or the validation of the situation might be for both commands to be actualised. In any case, the second command is obligatory, and the intermediary’s role is purely to convey the message. The performance of the task is legitimate, and the common understanding aligns with this.

The Implication of Repeating a Command and the Command After a Command

If the second command is issued after the fulfilment of the first, it is considered an initiating command, and it is required that, according to the repetition of the command, the duty is repeated. However, before the first command is complied with, it is an emphasising command, as a command for a particular nature only applies once. This is in relation to the substance of the command, but in relation to its form, although it seems to establish a new request, it serves to emphasise; because either no cause has been specified or, if specified, it is the same, in which case the second command is emphasising, and if it differs and the conjunction “and” is used, it appears to initiate a new command.

Prohibitions

A prohibition, in terms of both substance and form, conveys a necessary demand, just like a command, with the difference that its object is the prohibition of the performance of an achievable act. The act of prohibition involves a natural absence, which continues as the request, and the continuation of this absence is achievable. Both commands and prohibitions apply to the natural nature of things, according to their doctrinal definition, independent of external characteristics. This is what distinguishes commands from prohibitions. The prohibition of an action that causes harm is realised when the entire range of its instances is abandoned. Therefore, all instances of a prohibitive act are fundamentally opposed, and once the first instance is committed, disobedience has occurred, and the entirety of the harmful actions must be avoided.

The form of prohibition denotes a demand to abstain, not by generalisation or the wording itself but by logical reasoning. Both commands and prohibitions have simple meanings and are not compound in nature. The analysis of prohibition is a philosophical abstraction, not the actual meaning of prohibition. What the common understanding holds is the logical interpretation, which aligns with rational thought.

A prohibition, like a command, conveys a demand, but it specifically concerns the act of avoidance.

General and Specific

General and absolute both imply the inclusion of a concept, but the discussion lies in how this implication is conveyed.

The definitions presented for “general” and “specific” are descriptive and not the true essence. The reasoning mind clearly understands the conceptual definition and exemplifications of general and specific, and the rough meaning of “general” is clearer than the conceptual and specific definitions. It is also difficult for the reasoning mind to provide a complete and ultimate definition of it. However, it can be said that “general” refers to something that requires the inclusion of all instances and individuals that meet the criteria for it. The inclusion of all instances and individuals distinguishes it from the absolute, which only indicates the nature of its extension. The subject of the absolute has no condition, and the absolute itself represents the entire subject.

The term “general” is derived from the Arabic verb “عمّ” meaning “to include everything,” while “specific” is derived from “خصّ” meaning “to make exclusive.” This distinction highlights the difference between a general term, like “honour the scholars,” and a specific term, like “do not honour the corrupt scholars,” which excludes a portion of the general population (the corrupt scholars) from the universal command.

Thus, “general” means an all-encompassing nature, whereas “specific” does not include certain cases.

General and specific, in their conceptual meaning, have no judgment themselves; rather, the judgment is directed toward the instances. The discussion of how the judgment is applied is a foundational issue, and the concepts of general and specific pertain to linguistic usage.

The Specifics of General and Absolute

Although the general is simple, it is categorised in different ways depending on the context. This categorisation follows the difference in the establishment of its judgment. The wording and tools used for the general either match or imply certain forms of totality, such as in cases of “all scholars” where each individual is subject to the rule individually.

The general, when in the form of a collective or aggregate, applies to all instances as a whole. In cases of substitution, where one instance can replace another, the rule applies to any individual instance as chosen, and the duty is fulfilled by choosing one individual from the set, such as the phrase “free one slave.”

Thus, various terms and tools have been established to denote the nature of a general implication, indicating its particularities. When doubt arises, these tools are applied in their intended sense and do not overlap with an absolute.

The Disputed Relationship Between General and Absolute

While general concepts encompass a wide range, the absolute concept does not focus on the specific individuals but rather on the nature itself. Generality applies to the entirety of a nature, while the absolute is about the nature of something without conditions. When a general term contradicts an absolute, the absolute loses its force, as the general term already implies the entire subject.

Conclusion

The general term can be used effectively unless specified otherwise by a particular modifier. The establishment of this usage depends on common understanding and logic, aligning with the natural legal and philosophical reasoning.

Chapter Six: Principles of Jurisprudence / Second Goal: Judicial Evidence

If a specific reason, such as “it is forbidden to honour Zayd the scholar,” is introduced, and after the time to act on the specific reason has passed, a general reason, such as “honour the scholars,” is issued by the legislator, the matter hinges on whether the general reason abrogates the first specific reason or whether the first reason is a restriction on the general one. The expression “al-‘ulama” (the scholars), which includes the definite article, implies that the obligation to honour applies to all scholars. However, the specific reason “Zayd the scholar” implies a continued prohibition of honouring Zayd, and these two are incompatible.

Another situation arises when a general reason is initially introduced, and the time to act on it arrives, only for a specific reason to follow, the reverse of the previous case. In this scenario, the general reason has two implications: one of universality and one of continuity. One of these implications must be relinquished. In both cases, the specific reason takes precedence.

Second Goal: Judicial Evidence

This goal discusses the sources of ijtihad (independent legal reasoning) and the presumptive evidence. First, it should be noted that certainty refers to a belief that is firm and corresponds to reality, such that there is no doubt about it. “Knowledge” is defined as a belief that is definitively in accordance with reality. Knowledge is a more specific concept than certainty, which includes knowledge, compounded ignorance, and imitative belief. Certainty, unlike doubt, refers to a conviction that leads to a reality, and ignorance does not lead to it. Certainty is divided into objective (based on direct experience) and conventional certainty, with the latter being a strong presumption that is so close to knowledge that rational people treat it as knowledge and act accordingly.

The validity of certainty is intrinsic because if it is true certainty, it aligns completely with reality and derives accurate knowledge from it, so its validity does not need to be legislated. Certainty, therefore, does not require the creation of legitimacy or its revocation by a legislator. Therefore, wherever certainty exists, the person with certainty does not need to provide evidence for their conviction, and nothing can alter this state.

However, in the case of presumption, this is not the case, and the legislator can make certain presumption-based evidences valid for the people through binding legal decrees.

Legitimacy means the correct reliance on valid evidence, which must lead to an accurate conclusion. Such evidence, like certainty, can either lead to the realization of a true obligation, and thus failure to follow it would merit punishment, or it may not align with reality, in which case the individual would be excused from punishment.

Certainty is a complete and perfect means to access reality and does not require further validation or ritualistic acts.

Certainty as a Means: This kind of certainty pertains to cases where it is not the subject of the legislative address; the legal ruling is attached to the subject itself, and certainty is merely a means to ascertain the subject of the ruling, without being considered a condition of the subject. Thus, certainty in this context only serves to confirm the obligation without influencing the ruling’s validity on the subject.

If certainty is merely a means, presumptive evidences or general principles can replace it. When certainty is purely a means, it carries no special conditions, and the result of certainty will be treated as any other certainty, whether derived from a direct source or otherwise. However, if certainty concerns the subject of a legal ruling, it becomes dependent on the legislator’s decision and cannot be substituted by any other evidence.

The Role of Presumptive Evidence in Ijtihad

The next important source for ijtihad includes presumptive evidences which are typically rational, as well as other known sources like revelation, authority, and custom. These evidences do not require abstract reasoning and are grounded in practical reasoning. Let us now discuss these sources of evidence in more detail.

First Source: The Quranic Revelation

The Quran is divine revelation. Revelation is an inherent, internal power, and its content serves as guidance. Revelation can manifest in various forms, including the spoken word, as seen in miracles, which are also a manifestation of revelation. Revelation is a comprehensive reality that encompasses legislation, dispatching, and preaching, but it is not limited to these; its scope varies across different prophets. Sometimes it is temporary and transient, and at other times, permanent and enduring. No human intellect or creation can replace it. Scholars who follow revelation can only access and interpret it through the purity granted by divine aid.

The Quran is the ultimate guide for human life in all areas. It does not require the intervention of other human sources, such as science or experience. It is universal and eternal, offering solutions for both permanent and transient matters. Revelation adapts to time and place, but it remains consistent in its purpose to guide humanity.

The Quran, as the sacred text, represents the totality of divine wisdom and addresses all human issues. Its legal and moral directives are comprehensive and eternal, forming the foundation for Islamic law and jurisprudence. Therefore, it remains relevant across all times and places, guiding not just its initial audience but also all future generations, ensuring the universality of its message.

Second Source: The Authority of the Imams and the Sunnah

The second source of legal rulings and the foundation for ijtihad in Islamic jurisprudence is the authority of the Imams, who, after the Quran, serve as the divine guides. The legitimacy of their teachings is rooted in the divine grant of authority, which allows them to interpret and enact the law.

The Imams’ teachings, their words, actions, and silent approvals (known as “Sunnah”), serve as authoritative guidance for Muslims. The Sunnah provides insight into the correct conduct and legal decisions through the example set by the Imams. If an Imam conveys a ruling, whether through speech, action, or approval, it is considered binding, provided there is no restriction such as “taqiyyah” (dissimulation).

The Sunnah encompasses three categories: verbal, action-based, and tacit approval. Verbal Sunnah refers to the sayings of the Imams, while action-based Sunnah relates to the actions performed by the Imams that convey legal or moral principles. Tacit approval occurs when the Imam approves or remains silent about an action performed by others, which signifies implicit approval.

The Validity of Reports and Narrations (Hadith)

The narrations (hadith) report the actions and sayings of the Imams. These reports may be transmitted through individuals, but their legitimacy relies on whether they are consistent with established legal principles and customs.

The validity of a hadith depends on several factors, including the reliability of the narrators and the consistency of the content with established legal principles. When evaluating the validity of a hadith, scholars must consider its authenticity (whether it comes from a trusted source), its meaning (whether it aligns with established doctrine), and the context in which it was reported. Valid hadith can sometimes modify or even abrogate the general rulings of the Quran if they present more specific guidance.

The legitimacy of single narrations (known as “ahad reports”) is based on the general practice of reason and the acceptance of the validity of such reports by the rational community. Therefore, while an individual report may not carry the same weight as a widely agreed-upon one, it can still be considered legitimate if it meets the standards set by the rational community and is accepted by the scholars of the time.

The concept of “taqiya” (dissimulation) appears most clearly in many of the words spoken for reconciliation between Shia and Sunni. Moreover, if a jurist, in a particular position, limits themselves to citing a few narrations and quotes without adding their own commentary, this could indicate that their chosen opinion is based on the principle of taqiya. In the context of taqiya, they sometimes refer to narrations about taqiya or interpret a narration as being in the context of taqiya to direct the reader towards the concept of taqiya. In such discussions, they avoid offering any kind of argument and merely present the views of others. They may draw the reader’s attention to multiple doubts, speaking in an ambiguous manner, and avoid issuing a clear ruling, thus being cautious by citing the opinions of some jurists to remind the reader that the ruling might differ in the context of a taqiya situation. Resorting to the shelter of taqiya, especially when political maneuvering and deceitful confrontations with free-thinking scholars prevail, is common during the occultation period. A prime example of this is the scientific dispute between the Akhbaris and Usulis.

Ijma’ (Consensus)

Ijma’ is a type of evidence, but by itself, it does not hold legal authority. In Islamic jurisprudence, there is rarely a topic on which there exists a consensus, whether transmitted or produced, among religious scholars, and disagreements among jurists on many rulings are evident. Many claimed consensus views only serve as references and are based on sources that may not be credible. Despite abundant sources and transmitted narratives, there is little room to resort to ijma’, as someone holding the deed or document does not need to refer to the testimony of others. Only the ijma’ that is non-referential and dates back to earlier scholars, with a strong possibility of having a missing chain of narration or being directly connected to the infallible, is considered valid. We have not found such a consensus on any issue.

The ijma’ of earlier scholars can be either produced or transmitted. A produced ijma’ refers to an actual consensus gathered directly from the opinions of scholars in the early era, and it is considered valid. On the other hand, a transmitted ijma’ refers to a relay of an actual consensus, which can only be considered valid if the conditions of its acquisition and its transmission are credible, similar to the acceptance of a single narration. As noted, no produced ijma’ has been established to further discuss its division.

Famous Fatwas

Another form of evidence is the “famous fatwa” (opinion of jurists). A famous fatwa refers to the unanimous and coordinated fatwa of a large number of jurists on a legal matter without citing any evidence or reference. This widespread opinion does not reach the level of ijma’ and is not regarded as valid, as it does not reflect the opinion of the infallible.

Generally, fame can be categorized into three types: narrational, fatwa-based, and practical. Narrational fame plays a role in determining the authenticity and resolving contradictions in narrations. Practical fame addresses issues related to compensating for weak chains of transmission, but there is no credible evidence supporting these claims, particularly regarding practical fame, which primarily stems from Sheikh Tusi and his dominance in scholarly circles long after his time.

Qiyas (Analogy)

Qiyas in the principles of jurisprudence refers to deriving a ruling for a topic based on a subject with a valid narration by reasoning that they share a common rationale. If the reasoning for this analogy is explicitly stated and there is certainty that the same rationale exists in the other subject, it can be considered a reflection of the opinion of the infallible and thus valid. Otherwise, it holds no authority.

The validity of a reasoning analogy, in cases where the rationale is complete and credible, requires careful and scholarly attention to understanding the subject and the criteria for the ruling.

For an analogy to be valid, both the subject of the ruling and its rationale must be fully known, and any ambiguity in the subject and related doubts should be cleared. It is the jurist’s duty to ensure that a correct analogy is formed, as valid analogies provide the necessary guidance.

Understanding the subject involves the use of rational sciences, sociology, psychology, and, above all, anthropology, before even applying psychology and sociology. Jurisprudence should have a specialized institution for identifying subjects so that jurists, given the broad range of topics, can obtain a proper understanding. This process requires an organized research and information institution that can assist jurists in the identification of these subjects.

The jurist should, like universities and the practice of experimental sciences, have a laboratory where they can familiarize themselves with contemporary issues and avoid issuing opinions based on limited knowledge or personal preferences. Islamic jurisprudence necessitates an in-depth understanding of the subject. A pragmatic jurisprudence, focused on identifying subjects, ensures that all aspects of the subject are in the hands of the jurist and prevents them from falling into the fallacy of false reasoning.

Additionally, to understand a subject, its historical background must be studied. Therefore, the jurist must research the historical development of the subject from the time of the early Islamic period to the present in order to understand the transformations it has undergone and the regional and temporal contexts that have influenced its legal rulings.

For a proper ruling, the jurist must have a complete understanding of the subject, and in order to fully comprehend it, they must trace its historical development. By examining the time of the ruling’s issuance, it becomes clear how the issue was understood and whether it was deemed permissible or forbidden. This is of significant importance in understanding the subject of a legal ruling.

Some subjects, in their historical course, have been influenced by external factors and have undergone transformations over time. In such cases, the ruling must be adapted to the new, transformed subject. When evaluating a ruling, one must consider the associated factors that change the subject, as each subject has a constant, stable ruling that does not change with the transformation of its surrounding circumstances.

It is important to note that the changing of a subject does not equate to “secondary rulings.” An external event may occur, but the primary ruling for the newly emerged issue remains unchanged. This is because the new circumstances create a new subject, and referring to the special ruling for that subject does not imply altering the original ruling. The label of “fixed and variable rulings” is incorrect; instead, all rulings are fixed. Islam does not have any changing rulings, as all its rulings are fixed, and “what Muhammad (PBUH) has made lawful is lawful forever until the Day of Judgment, and what he has made forbidden is forbidden forever until the Day of Judgment.”

The Nature of the Intellect and Its Relation to Knowledge, Thought, and Divine Revelation

The intellect is an inner, cognitive power of the soul, which, by utilizing forces at its disposal — such as perceptions, senses, and other forms of propositions — organizes and arranges them. By doing so, it reaches a new judgment or conclusion, which leads to the generation and growth of thought. The intellect is the faculty responsible for understanding and discerning general and universal concepts, allowing it to comprehend all things, including itself and others, and to make judgments about everything. However, describing it as an inner sense is a kind of verbal approximation. The intellect is a faculty, not an act. It is a potentiality that, when provided with the necessary preconditions — which it derives from the forces under its control — can issue judgments and decisions.

The intellect is not equivalent to knowledge. While knowledge can be taught with effort, the intellect is an innate, natural power — a divine gift that cannot be acquired through teaching and is not an acquired trait. The term “intellect” is derived from “ʿaql” (which means to restrain or guard), suggesting that it is a faculty that protects and preserves the soul’s rational faculties. The “nafs” (soul) is considered a specific level or manifestation of the intellect, and when the two are mentioned together, the difference in their levels can be inferred. When mentioned separately, the term “nafs” may refer to something broader than intellect alone, such as the “nafs al-nātiqah” (the rational soul). This rational soul is the innate, internal faculty of discernment. When referring to the intellect as “light,” it pertains to the higher form of intellect granted to prophets and saints, a special, divine gift bestowed upon those with sacred faculties or even those possessing a higher degree of cosmic authority.

The intellect exists in all human beings, although its presence is not uniform across all individuals. This explains why it can vary in degree, accommodating a range of capacities. Sometimes, the term “intellect” refers to the world of intellects and pure forms, which should not be confused with the human intellectual faculty. Some hadiths found in Usul al-Kafi refer to this transcendent realm of intellect.

As previously stated, the intellect can command various forces to aid it, one of which is knowledge or scientific propositions. Thus, the intellect can enhance its data by employing knowledge or inner vision, although it cannot make judgments without these resources. These forces are often referred to as the “armies” or “soldiers” of the intellect. The intellect is essentially a discerning power, ruling through the assistance of these forces, and its judgments are facilitated by the sensory experiences, perceptions, and general knowledge of the human mind.

It is important to note that the intellect is not an acquired trait but a bestowed gift. Therefore, the statement made by martyr Mottahari, which claims that “a child initially has neither a mind nor an intellect, but gradually develops intellect over time,” is incorrect. The intellect is present in humans from the moment of conception, although it is initially latent, much like how a fertilized embryo in its early stages is not visible to the naked eye but gradually develops into a fully formed human being. The natural awareness that an infant possesses, such as crying, smiling, feeling discomfort, sensing temperature changes, recognizing its mother, and knowing how to nurse, is attributed to the intellect. However, its intellectual faculties only manifest fully as it gains more faculties, and as these forces (the intellect’s soldiers) grow in number, the intellect matures and begins making better decisions.

In a societal context, the intellect becomes manifest through the collective body of “the rational” or “the wise.” The intellect, in the form of syllogistic reasoning, and the wise, through social customs and traditions, emerge in tandem. The difference between the intellect and the wise is that the collective intellect, as seen through society’s customs, accumulates wisdom. However, it is important to note that the collective intellect only serves as a valid criterion as long as it does not conflict with the judgment of reason. In the event of a conflict between reason and the collective wisdom, the collective wisdom loses its validity because it is ultimately derived from rational judgments.

The collective intellect’s growth is also subject to temporal and spatial conditions. For instance, the collective intellect of the non-believers differs from that of the believers. Custom, tradition, or the collective body of wisdom is the accumulation of discernment and should not be confused with a faculty of reason, even though they may appear similar. Religious teachings also outline the principles of intellect and assist its functions, but while the intellect deals with generalities, revelation (wahy) addresses specifics.

The intellect is limited in its capacity for discerning particularities. For instance, it cannot comprehend that usury is a form of transaction or that alcohol is forbidden, unless it draws upon its auxiliary forces. Revelation, on the other hand, has the capacity to discern both particular and general matters independently, thereby acting as a guiding light to prevent the intellect from error.

The intellect does not consider usury quantitatively; it regards it qualitatively. The quality of usury is not something that can be understood through common understanding or custom. Philosophy, in this case, is crucial for recognizing qualitative aspects and for discerning the subtle distinctions that arise in moral matters. For example, in a case of exchange involving usurious trade — where one offers a high-quality product in exchange for a lower-quality one of the same kind — the intellect may allow it on the basis of its qualitative assessment, but religious law may prohibit it based on its social perspective.

Religious law, including issues of social interaction and ethics, is rooted in collective, common-sense understanding, and does not allow for specialized expertise to govern its judgment. The law relies on basic, observable principles and does not depend on high-level philosophical or scientific knowledge to be understood.

The Relationship Between Reason, Revelation, and Law

The law in Islamic jurisprudence (fiqh) operates independently of higher forms of philosophical inquiry and relies on collective social wisdom. In contrast, philosophy deals with intellectual matters that are based on abstract reasoning, and religious law is founded on general, common-sense understanding. As stated in the Qur’an, “Shall we believe as the foolish have believed?” refers to ordinary people who do not possess the same philosophical acumen but whose understanding is valued by divine law.

Thus, intellectual capacity and religious law are both rooted in the same rational framework, but they function on different levels of abstraction. The law addresses societal matters, while philosophy engages with higher metaphysical and epistemological questions. Although these domains may seem to overlap at times, they each maintain their own distinct roles in the divine order.

The required introduction is not a purely jurisprudential discussion, where the issue of the obligation or non-obligation of the introduction itself would be debated, but rather a foundational one, forming the major premise and intermediary in proving the desired outcome. It belongs to non-independent rational matters, not linguistic ones, and the discussion revolves around the necessary implication between the obligation of the religiously obligatory act and the obligation of its prerequisite. This implication serves as the intermediary in deriving the legal judgment. Non-independent rational judgments require an external non-rational prerequisite and are placed within a chain of conditions. Here, the focus is on the existence of an implication in the path of inference, not the obligation itself. Since this issue has no connection to the origins or the end (i.e., the cause and effect), it is neither a philosophical, jurisprudential, nor theological issue. Therefore, the question is whether, after the Creator commands the realization of the object in the external world, the necessary prerequisites for it also carry a religious obligation or not. The idea of the obligation of the prerequisite implies a rational necessity, not a mandatory religious imposition, and this rational necessity is certain and intrinsic: once the required element is conceived, the necessity follows. This rational necessity affirms that the obligation of the required act depends on the prerequisite in such a way that the obligation of the required act extends to the prerequisite, making it an ancillary, secondary, and intuitive obligation, not a primary one.

Rational judgment here concerns the implication, and the issue is whether, in addition to the rational certainty of the necessity and the religious obligation concerning the object of the command, there is also a religious secondary obligation for the prerequisite, or not. In this discussion, the judge is the rational intellect; that is, the religious obligation of the prerequisite is revealed through rational implication, and this implication is certain, not conventional (social tradition) or casual (habit among a limited group of individuals). Furthermore, the required prerequisite is not derived from the premises of legal rulings or from the premises of the epistemological foundations of jurisprudence. In the premises of legal rulings, the discussion concerns the implications of rulings, but here, only the implication of the two rulings—the obligation of the object of the command and the prerequisite—is considered. However, the prerequisite of the required act is not a consequence or result of a ruling. In the epistemological premises, the existence of a subject and the reason for assigning the predicate to it is discussed, and whether the prerequisite of the required act is obligatory or not. Here, the intellect judges the implication and places it in the path of inference, which is why this issue is foundational, not jurisprudential.

The following discussion will address the classifications of the required prerequisite and the required act, to prepare the ground for a precise understanding of the subject and how an obligatory prerequisite functions. Although this discussion should be viewed from a foundational perspective, since the intellect holds a definite judgment about the implication, it does not, in addition, impose a religious judgment of obligation or a secondary, derivative, religious obligation. There is no evidence for this, nor is there a subject for the application of the principle in this case. It must be understood that there is a difference between rational obligation and religious obligation, both in terms of the subject and the judgment and its effects; it is not the case that both lead to the same compulsion in action. Issues such as religious devotion, reward and punishment, vows, and justice or corruption are the consequences of religious command.

The topic of discussion is the existence or non-existence of this implication between the prerequisite and the object of the command from a rational perspective, not the actual dependency of the prerequisite on it in reality. Practically speaking, while the prerequisite depends on the object of the command in terms of its obligation and the object of the command depends on the prerequisite for its existence, this is more of a purely mental issue, a subsidiary foundational discussion. In this discussion, there is no difference between obligation, prohibition, and recommendation.

Two major consequences that have been suggested for this discussion, in the case where the implication is established, are as follows: one is the validation of worship in cases where there is a prohibition of a particular counter-action and the other is the establishment of a religious obligation for the prerequisite based on the implication. If the prerequisite is a significant forbidden act and the object of the command is of greater importance, such as saving a drowning person by crossing a usurped land, the obligation of the prerequisite, when the implication holds, removes the previous prohibition.

In this discussion, the goal is to establish the religious obligation of the prerequisite through the establishment of implication, but the prerequisite only has a definite rational obligation and the establishment of its religious obligation as a secondary, derivative duty has no evidence; rational implication cannot establish its religious law; although the intellect dictates the necessity of the prerequisite and there are instances in religious law that have led to the divergence in this discussion.

Before delving into the classifications of the required prerequisite and the required act, it is essential to note that the discussion here is about the existence of prerequisites, not the obligation of the prerequisites. Therefore, a condition for the obligatory act should not also be a condition for its obligation; otherwise, anything that is a condition for the obligation would also be a condition for the required act. However, anything that is a condition for the required act is not necessarily a condition for the obligation. Similarly, the condition should not be the title of the obligation or the subject of the command, and it should not be an assumed condition; otherwise, in all three cases, discussing the required prerequisite would be redundant and meaningless. It should also be noted that the obligation of the prerequisite, whether in terms of its application or stipulation, follows the obligation of the required act, and the prerequisite cannot have an additional or separate condition from the command. There is a kind of validity and dependence between the prerequisite and the required act.

The claim put forth here is that the required prerequisite, in addition to the rational implication, has a religious implication between the obligation of the required act and its prerequisite, and the essence of the prerequisite is inherently obligatory, that is, without the intention to lead to the required act and without the prerequisite necessarily being instrumental in realizing the required act. If the prerequisite does not have an intermediary with the required act, it is instrumental or direct; if it has an intermediary, then either it is an optional cause, which is why it is called a means, or the intermediary is something impossible and non-optional, which is referred to as a preparatory cause.

Since the subject of a ruling in terms of its establishment is the general title and not the individual or the nature alone, this discussion cannot be based on whether the multiplicity of titles leads to the multiplicity of meanings in terms of proof and action, or not. This is while the transfer to each individual and title happens in a certain way, and sometimes multiple titles, such as the divine names, are attributed to a simple meaning like God Himself. However, in this discussion—where the titles are considered as conventional and relate to the various aspects of a single essence—multiple titles lead to multiple meanings because these aspects define the nature of the subject and its restrictions. This is in contrast to the causal aspect, where the multiplicity of titles does not result in the multiplicity of meanings. In the example of prayer in a usurped place, because the nature of the aspects here is restrictive, the command to perform certain actions and the prohibition of being in a usurped location are two separate concepts with distinct purposes. Thus, the multiplicity of titles leads to the multiplicity of meanings. The commands and prohibitions are intertwined, but the ruling on one of the two intertwined concepts (i.e. the command and the prohibition) does not transfer to another nature. Since the multiplicity of the aspects of the command and prohibition in action is sufficient to eliminate impossibility, in practice, only the prohibitive aspect is taken into account. According to the view of permissibility, since the command is valid, performing it in a situation of conflict is proper and correct unless someone is impeded. In cases of inability in circumstances other than freedom or escape, their worship is invalid.

In this discussion, the term “one” refers to the real unit in the external world, meaning a numerical unity (as opposed to multiplicity), which includes both individual and specific unities, as well as type and genus unity (such as human or animal). Therefore, it does not refer to the unity in opposition to a general concept or a conceptual unity, such as a collective unity (e.g. Iranian).

The author of “Kifāyah” distinguishes this discussion from the issue of the compatibility of command and prohibition, asking whether their coexistence leads to corruption or not, in terms of their purpose, rather than in terms of the subject or predicate. In the case of command and prohibition, the question is about whether one affects the other, whereas in the case of prohibition in worship, the purpose of the discussion is to address the potential for invalidity in worship, even though the subject of both is the same. However, the distinction between the two issues lies in their subject matter. These two fundamental principles, which are discussed in the context of legal consideration, concern two different conventional subjects, with the subject of the compatibility of commands and prohibitions involving the permissibility of coexistence with multiple causes, and the subject of prohibition regarding worship relating to the potential for corruption, which are not connected to each other.

The issue of the compatibility of command and prohibition is a principle in jurisprudence because its result influences the method of deriving legal rulings, while this issue is a subsidiary matter because its result does not immediately come about. Rather, it is first entangled with conflict. The issue of compatibility requires a legal premise, as the command and prohibition must come from the lawgiver. Therefore, this is not a matter of independent reason, and reason analyses whether the command and prohibition transfer to each other and governs this matter. The common understanding follows the same ruling.

The obligation of the command and the prohibition of the prohibition are absolute and not conditional, and both can coexist absolutely. Furthermore, this discussion does not include optional obligations or expanded obligations, as the prohibition in optional obligations does not make sense, and there is no conflict in expanded obligations.

In this discussion, there is no need to address the issue of having an alternative or a way of fulfilling the command without violating the prohibition. The question of alternatives does not have a place in the context of legal rulings. Here, the issue concerns the transferability of the command and prohibition due to the transferability of the multiplicity of titles to the meaning, which leads to an impossible duty in the action for the obligated person. However, the existence of alternatives is related to the issue of the obligation to do the impossible and the lawgiver’s action, and its subject is relevant only when there is a condition of correctness.

The conditions for the compatibility of command and prohibition do not require that both the command and the prohibition have the necessary reason and the obligating benefit, and that the harm that requires avoidance exists. The issue of the multiplicity of titles and the transferability of the command and prohibition to another does not depend on the consideration of the benefit or harm in the ruling. This consideration is relevant in the realm of legislation, in terms of determining the necessity of the benefit or harm, and in practice, regarding its application. Therefore, there is no room for the discussion of conflict, neither in terms of conflicting interests during the legislation process nor in terms of conflicting obligations arising from the incapacity of the person concerned, as there is no conflict between them in the context of legislation. In the realm of legislation, there is no contradiction between the established rulings, so the issue of conflict does not arise. Therefore, what the author of “Kifāyah” has presented here deviates from the subject.

The realm of establishing the ruling differs from the realm of applying the subject to the obligated person, and the latter follows the former. The actualization of the subject of the ruling is connected with the actualization of the ruling itself, which is based on the evidence, whether real or theoretical, and in the hands of the lawgiver. There is a distinction between the actualization of the ruling and the actualization of the subject, which depends on the realization of conditions in the obligated person.

The Issue of Multiple Conditions, Single Punishment, and the Interference of Causes

In the matter of multiple conditions, single punishment, and the interference of causes, it should be noted that since religious conditions are a legal construct, the legislator (Shari‘ah) can establish several conditions for a single punishment. The causal relationship of a condition for the punishment is not necessarily exclusive. Therefore, the apparent meaning of a statement should be considered the judge in this regard, and in the absence of this, the statement becomes ambiguous. We have discussed this issue in detail in our work on legal principles.

The Concept of Description (Wosf)

A description, in the sense of a qualifier, does not have a concept like a condition and does not negate something other than it. The concept of description refers to what was discussed in the discussion of derived terms, and we stated that it pertains to anything that is attributed to the essence, encompassing both descriptive and grammatical adjectives. It also refers to anything that qualifies the subject of a legal duty, such as “honour the scholar.” Therefore, a description includes agent nouns, passive nouns, nominal adjectives, intensive forms, names of time and place, attributed names, and inherent properties like marriage or ownership. This is sometimes referred to as an implicit description, an implicit condition, or an indirect description. Hence, the concept of description in a sentence indicates that when the description is absent, the ruling is negated.

The issue arises as to whether, if a description serves as the subject of a ruling, such as in the phrase “honour the scholar,” the description implies that with the removal of the subject, the ruling should also be removed, and thus if evidence arises regarding the obligation to honour the ignorant, would it lead to a limitation of the meaning or not?

Some argue that linking a statement to a description implies causality, but it cannot be used as an argument unless evidence for it is provided.

Descriptions do not possess a concept, whether they are restrictive or qualifying, where the ruling is conditioned on this qualification, or particularly explanatory descriptions, where the ruling is not based on the qualification and the ruling persists even in its absence. Descriptions also include predominant descriptions.

The Concept of Limit (Ghayat)

The term “limit” refers to the finality or boundary of something, whether temporal or spatial, rather than to its cause or distance. The concept of limit is concerned with whether a ruling that is confined to a limit implies that after that limit, the opposite ruling would apply. According to the text, the limit is generally not included within the scope of the subject, and the ruling for a limit is usually unstated unless supported by contextual clues. In contrast, the opposing concept implies that the ruling would not continue after the limit, and one cannot extend the ruling outside the established limit, even when the limit restricts the subject or the nature of the action.

The Concept of Exclusivity (Husra)

Exclusivity refers to the restriction of something and is manifested through particles like “only,” “except,” and “nothing but.” An exception, in the form of negation, such as “only the just ones among the scholars should be honoured” or a positive statement like “honour the scholars except for the corrupt ones,” indicates that the ruling applies exclusively to those not excluded. It does not imply the opposite for the excluded. In Persian, words like “only,” “nothing but,” and “apart from” are used for exclusivity. However, when used in a disjunctive form, the meaning is not exclusive but still conveys a concept of exclusion. Such forms do not imply full causality and cannot limit the subject to a specific case unless evidence supports it.

The Concept of Quantity (Adad)

When a ruling is applied to a subject that involves a specific number, the ruling does not imply that the punishment or act is negated for any other number. Numbers are used to define a minimum or maximum, and simply mentioning a number does not imply the negation of the ruling for anything other than that number. The concept of quantity is one of the weaker concepts in terms of implications.

Absolute and Restricted (Mufrad and Muqayyad)

An absolute concept refers to something unrestricted, which indicates a nature that applies to all instances of that nature. A restricted concept involves a specific condition that limits the scope of the absolute. In legal reasoning, an absolute is applied to the general nature, while a restricted rule modifies that nature for particular cases. This relation is either seen in the difference between affirmation and negation or it occurs in the same manner across the two concepts. Absolute and restricted are relative terms, which depend on the situation, and sometimes one term may appear absolute while in other cases, it is restricted. The opposition between them is one of the absence of a property and the possession of a property.

The Role of Collective Rationality and Custom

The role of collective rationality and custom is significant because when all rational beings share a common understanding or practice, the likelihood of error diminishes. Since humans, guided by reason and not motivated by personal gain, tend towards good and away from evil, collective rationality leads towards truth. It is essential to acknowledge that while we emphasize collective rationality, we do not claim it to be infallible. In certain situations, collective rationality may be mistaken, as it does not grant universal infallibility. The collective rationality of ordinary people is a source of value in determining legal rulings, but it must be accepted under specific conditions.

Distinction Between Custom and Collective Rationality

Custom refers to the common practical understanding among people, arising from their natural inclinations. Collective rationality, in contrast, involves judgment made by reason before action is taken. While there is significant overlap between custom and collective rationality, collective rationality involves a judgment process that precedes action. Both custom and collective rationality hold authority in legal reasoning, though custom is generally considered after consulting reason and revelation.

These two approaches pertain to the nature of individuals, without any involvement of reason or revelation. This human nature, when considered in its collective and general form, represents the norms and practices of rational individuals or the collective reason of society. Collective reason is practical, not abstract or conceptual, as it does not exist in isolation or independently outside of individuals. Practical reason is external, real, and contextually applied. Collective reason has an operational character and is not abstract; it is also not binding, meaning it does not take away an individual’s choice — an individual may oppose collective reason, but must bear the consequences of their opposition, which are inseparable from it. However, it is not coercive, and if warriors oppose it, it is due to their nature, which leads them to such judgments, just as those who oppose resistance to oppression do so due to their own weak, cold, and despairing nature. They are more concerned with the consequences they will face rather than acknowledging their own weakness. Collective reason, like analogy, is not abstract but is rather a practical consequence of human nature, a nature that can be either hot and passionate or cold and weak. Abstraction plays no role in collective reasoning, which is grounded in human nature. Yes, it is possible for someone to train their nature and develop a secondary nature, but this secondary nature is not the focus of this discussion.

For example, someone who constantly engages in oppression and develops a tyrannical nature might no longer feel the wrongness of their actions. Instead, they might take pleasure in their oppression, justifying it as their rightful action. The nature of oppression, in this case, differs from simply performing an unjust act; it means that the act is accompanied by self-justification, with the individual seeing it as their right. In contrast, one who merely commits an act of oppression is aware of the wrongfulness of their action and feels the guilt associated with it.

Therefore, a distinction must be made between oppression that arises from the nature of transgression and oppression that arises from selfish desires. A tyrant with a secondary nature only justifies their oppression and regards it as permissible in relation to themselves. Their disorder is perceived as an internal norm, as they consider absolute oppression to be wrong. If someone were to oppress them, they would condemn it. However, they view their own oppression as justifiable and praiseworthy. This indicates that they do not mistake the concept of oppression; they are aware they are engaging in it but deem it acceptable. Similarly, a society can, through training, adopt a secondary nature and perceive deviations from norms as acceptable, resulting in an endorsement of the previously disapproved behavior. This endorsement is not based on any theoretical or judicial reasoning but rather on the continued practice of the behavior, which eventually becomes accepted.

Therefore, when referring to common practice and the collective reasoning of society — which is practically understood as arising from human nature — attention to the different types of human natures is crucial. What gives credibility to collective reasoning is the primary nature, not the secondary nature, which deviates from the primary. Furthermore, collective reasoning is not a philosophical or abstract concept and cannot be understood through philosophy or conceptual thinking; in other words, it cannot be proven, accepted, or controlled through the application of wisdom.

Collective reasoning exists at a level beyond theoretical reasoning and revelation, and is termed “primary nature.” Common practice and collective reasoning are based on the primary nature of the collective. For instance, the common understanding of trade, as affirmed in the Qur’an (And Allah has permitted trade) is not simply an explanation of the prohibition of usury, which has become common in society. Thus, the statement (And Allah has permitted trade) is not redundant, but rather introduces the prohibition of usury (And He has forbidden usury) as part of the broader social structure.

The concepts of presumption, the validity of negation, and the authority of singular reports are all based on collective reasoning. When someone speaks, the presumption is that they have both intent and truth in their statement. Likewise, collective reasoning holds that individuals should exhibit dignity in society, and any act of frivolity — such as wearing inappropriate clothing in public — is condemned, as it contradicts the principle of dignity. Collective reasoning sometimes adopts a general rule, which then finds specific applications in various cases. The way individuals communicate is also grounded in collective reasoning and common practice; when someone speaks, they intend their words to be taken as sincere, and it is presumed that they speak truthfully.

However, as noted, collective reasoning is only authoritative when there is no previous intervention by reason or revelation. Although reason and revelation do not forbid collective reasoning, the common practice and collective reasoning are grounded in human nature and have been practically established. Thus, when it is stated that common practice or collective reasoning should be considered from the perspective of religious law, this is an additional condition; because what is common practice is based on human nature, and something cannot be considered common practice and simultaneously excluded from religious law. On the other hand, religious law does not intervene in matters that are understood through common practice, such as social customs and traditions, but only in specific cases such as the prohibition of usury.

The principle of ownership and the principle of control — which are legal concepts used to establish rights — are both based on collective reasoning, which is the practical understanding of society, and these concepts are applicable only in practical matters, not in theoretical matters that have a basis in revelation or reason.

Thus, the authority of collective reasoning is not contingent upon its existence at the time of the lawgiver, and it suffices to establish its authority as long as there is no opposition or prohibition from religious law. It is not necessary to establish that the lawgiver explicitly approves of collective reasoning; rather, it suffices that there is no evidence of the lawgiver’s opposition to it.

Practical collective reasoning — which underpins common practice — represents the reasoning of ordinary individuals as well as that of leaders, and their collective reasoning is blended together, not the reasoning of intellectuals or highly educated individuals. Common reasoning is harmonised across the general population and lacks individual distinctiveness; unlike rational legal judgments, which involve the reasoning of particular individuals who are specifically acknowledged for their rationality.

Recourse to common practice is appropriate in matters where religious law has not intervened or prohibited something, as religious prohibition indicates that the subject matter is related to social customs and traditions, not natural common practice. Furthermore, recourse to common practice occurs when there is no need for a theoretical proof; because the reasoning involved is practical, not theoretical, and theoretical reasoning cannot establish what is commonly understood in practice. Therefore, there can never be a conflict between common practice and reason, as they belong to different domains. When we say something must be of a certain kind — meaning it must be persistent and widespread — it is to ensure that it represents a middle ground between reason and revelation, reflecting the common practice of ordinary people and becoming a widely accepted action without multiple interpretations. Common practice refers to what is shared by rational individuals and represents the ordinary, natural practices of people, not the reasoning of particular intellectuals.

Common practice, or collective reasoning, is a practical reality based on human nature, consolidated through action. It is a nature that has become established through repeated practice. Common reasoning, on the other hand, is based on an understanding of human nature that has been formalised in practice. Both common practice and collective reasoning stem from the same source: collective human reasoning. However, the difference is that common practice is based on actions that have been solidified through consistent behaviour, while collective reasoning involves pre-established judgments regarding the suitability of these actions.

Common practice, unlike habit, involves a sense of appropriateness and moral recognition, and thus has a sense of sanctity. However, habits can be undesirable or unhealthy, and they are more individualized, originating from a person’s particular actions rather than from collective society. Habits can start from any individual and may not necessarily be adopted by the broader society. Common practice, by contrast, emerges naturally in a group and is universally recognised, regardless of individual origins. Therefore, common practice has a universal, collective nature, unlike habit or custom, which are more personal and can be influenced by particular individuals.

Common practice is also distinct from tradition and custom. Traditions refer to the customs and practices of a particular group and are rooted in the ethical nature of that group, while common practice arises from the collective nature of humanity. Furthermore, while common practice has a collective and universal application, traditions may be specific to a group and can involve individualistic actions. Thus, while customs and traditions can vary significantly, common practice represents the underlying shared nature of society, making it a stable and consistent aspect of social interactions.

However, the claim made by the Usuli scholars that “the customary practices of the common people are not legally binding unless there is no contradiction or opposition to them” is correct; because the common people are not infallible, and the term “customary practices” here does not refer to the specific notion of custom as we understand it, but rather to a general term that encompasses their habits, traditions, customs, and practices. Among the customary practices of the common people, there exist many embellishments that have become habitual, traditional, or customary, and these should not be confused with natural customs, which have inherent legal validity.

Third Objective: Jurisprudential Principles

Practical principles are rational rules whose subject matter is doubt and uncertainty. Doubt may concern either the obligation or the person obligated, or it may involve a prior state or be an independent, simple doubt.

Practical principles are employed in the process of deriving legal rulings, not for the purpose of Ijtihad (independent legal reasoning). Both sources of legal reasoning and Ijtihad are based on apparent evidence, but the subject matter of practical principles is the absence of a definitive Ijtihad-based ruling and the presence of doubt. The subject of Ijtihad is the opposite of doubt and occurs prior to doubt, and one cannot be dominant over the other. Ijtihad and Fiqh (jurisprudence) are parallel to one another, not in conflict. In other words, the individual must obtain actual rulings and religious duties either through Ijtihad or Taqlid (following a qualified scholar), by examining the religious proofs. However, if one is unable to ascertain the actual ruling, one must resort to practical principles to fulfill their practical duty. These practical principles include: presumption of innocence, continuity (Istishab), precaution, and choice.

The principles can be divided into three categories: certain, presumptive, and evidential principles. This division has both order and consequence, meaning that when a certain principle is available, the evidential and practical principles are no longer relevant.

The applications of these principles are as follows: doubt may either concern a prior state (in which case Istishab applies) or not. In the latter case, if the doubt pertains to a duty or the actions of the obligated person, the principle of presumption of innocence applies. If the doubt concerns the obligated person, and precaution is not possible, the principle of choice applies. Otherwise, the principle of choice is relevant.

To elaborate, in the absence of an Ijtihad-based proof and when a doubt arises regarding a legal ruling, either that ruling retains certainty from a prior state, in which case the principle of Istishab applies, or the origin of the doubt is not certain and is considered a primary or initial doubt. This doubt is either concerning the obligation, in which case the principle of presumption of innocence applies, or concerning the obligated person, in which case, if precaution is not feasible, the principle of choice applies. If there is a definitive doubt and precaution is possible, the principle of precaution applies.

It must be noted that in practical principles, the term “obligation” refers only to obligatory rulings (such as duties or prohibitions), and permissive rulings are outside the scope of this discussion.

Istishab Principle

The principle of continuity or Istishab is based on the idea that “certainty should not be overturned by doubt,” and the term “Istishab” is derived from “Sahb,” meaning to carry or accompany. In practical jurisprudence, it involves ruling that something that was previously certain continues to exist, even in the presence of doubt regarding its continuation. Hence, the principle of Istishab is applied when something has a certain prior existence but is now in doubt as to whether it persists or not. According to this principle, what existed in the past remains until there is a definitive proof to the contrary. This method is used by rational individuals to resolve doubts when no conclusive evidence is available.

Definition of Istishab

The definition of Istishab, like other jurisprudential definitions, cannot be fully precise, but as explained by Sheikh Ansari, it can be described as “the ruling to maintain what was.” The reason for maintaining something is its prior existence, and the ruling that is maintained due to the presence of a cause or proof is not considered part of Istishab. In a different definition, Ayatollah Akhund Khorasani has said: “The ruling to maintain the ruling or the subject of a ruling in which there is doubt about its continuation.” This definition is narrower than the previous one and is not as rigorous. Istishab does not prove anything new but is rather a presumption that removes doubt and confusion from the obligated individual. The certainty from the past does not affect the validity of Istishab. The validity of Istishab is derived from the practical consensus of rational individuals.

The Components of Istishab

According to the accepted definition, Istishab consists of the following elements:

Certainty about a subject in the past, even though certainty may also exist in the present.
A subsequent doubt about the same subject; the certainty and doubt must coexist at the same time.
A distinction between the certain and the doubtful time.
The prior certainty must precede the time of doubt. If the certainty occurred after the doubt, Istishab would be reversed and invalid.
The subject of both certainty and doubt must be the same. If the subject is different, even though the times of certainty and doubt coincide, it would not constitute Istishab.

The Principle of Istishab as a Jurisprudential Principle

Istishab is a jurisprudential principle, not a legal rule, because a legal rule directly pertains to the actions of the obligated person, whereas Istishab is not a practical action.

Istishab is a principle, not an evidence or proof, and its legitimacy is based on the consensus of rational individuals. Although the principle of logical necessity (Mulaazamat) implies that anything confirmed by reason is also confirmed by Shari’ah, it is not the case that everything confirmed by Shari’ah is necessarily confirmed by reason. Logical reasoning alone cannot sustain the certainty of Istishab during a time of doubt, as the ruler of continuity is Shari’ah and the consensus of rational individuals, not reason alone. Therefore, there should not be a conflation of rational rulings with those derived from the practical consensus of individuals. Reason does not have a ruling regarding the continuation of the subject of Istishab, but the consensus of rational individuals does, and Shari’ah has not contradicted this practice but has, in fact, guided its acceptance.

It is correct that Istihsab (presumption of continuity) applies to topics, but the criteria for doubt and certainty are not philosophical precision, rather, they are based on common sense. Common sense, following topics, also doubts regarding rulings, and the presumption of the continuity of rulings is valid. We stated that Istihsab in Shubhat-e-Hukmi (doubt in a ruling) is ruling on the continuity of a ruling when the doubt regarding its continuity stems from the lack of an explicit text affirming its continuation, or the ambiguity of the text on its continuation, or the conflict between texts regarding it.

Due to its rational and customary nature, Istihsab is applicable to cases where the presumption is not static but gradually comes into being. These matters are not continuous or permanent, and their totality is not present all at once. Rather, as each component comes into existence, it remains in existence until it ceases, and one part does not replace another. This is similar to the nature of temporal matters and things whose relationship with time is a condition, but not a container, where movement and flux occur. In both steady and continuous matters, the presumption applies because of the unity of the subject that is certain and doubtful, as recognised by common sense. These matters are composed of a series of moments and past motions, which are not individually unified, yet commonly considered as one.

However, when it comes to Istihsab in a restricted ruling, like “Honor the scholars” which is restricted by “Do not honor Zayd on Friday”, this involves a person exiting from the time-bound universal ruling. The individual was included in the universal ruling before this time, but not if the individual has simply exited the universal without any time-bound specification. In such cases, the doubt arises whether the general ruling should still apply to the individual, or whether to rely on the specificity of the restricted ruling.

Sheikh Ansari argues that in the case of a collective universal, Istihsab depends on whether time is a condition or a container within the specific text. If time is a container for the ruling, it indicates the continuation of the ruling, thus the restriction applies without extensive engagement with the specifics. However, if time is merely a condition, it leads to a situation where the ruling pertains to a distinct subject within each occurrence of the time period, and the unitary subject in certainty and doubt is no longer applicable, thus the presumption cannot be applied and reference is made to the universal ruling. Moreover, if the ruling becomes restricted in the case of multiple subjects, it would imply an excessive restriction. The determination of whether time is a condition or container is to be inferred from the text’s statement. In a comprehensive universal, recourse is made to the general text.

Akhund’s opinion aligns with Sheikh Ansari’s in the case of a collective universal, suggesting that if time is considered a container in the restricted text, this should also be taken into account in the general ruling. He categorises Sheikh’s division into four cases. In the first two, he agrees with the Sheikh and asserts that if time is a container for both the general and specific texts, Istihsab applies because the subject of certainty and doubt remains unified. However, if time is a condition for both the general and specific texts, Istihsab does not apply. But if time is a container in the general ruling and a condition in the specific text, the general ruling continues, but the specific ruling requires a new independent subject for each time period, making Istihsab inapplicable. Finally, if the time in the general text is a condition, while in the specific text, it serves as a container, the restricted ruling applies, but ignoring the general ruling leads to excessive restriction, preventing reference to Istihsab. Therefore, in the case of a conflict, recourse is made to the general text, and in instances of conflict between general and specific texts, precedence is given to the general texts.

In the case of gradual matters, partial Istihsab, total Istihsab in its first and second forms, and prospective Istihsab are applicable. Prospective Istihsab is the opposite of present and past Istihsab, where certainty applies in the present and doubt exists in the future. From the general reasoning found in certain hadiths, such as “Certainty is not overruled by doubt”, the validity of prospective Istihsab can also be inferred. However, for prospective Istihsab to be valid, it must have an actual effect; therefore, if there is no practical outcome, Istihsab cannot be applied.

Istihsab is also applicable in conceptual doubts and linguistic matters, where the subject of the presumption is one of the linguistic topics. For instance, Istihsab is applied to the absence of a transfer of meaning when there is doubt about the change of a term’s meaning, affirming its original meaning. The rationale for this is the customary practice of reasoning, which acknowledges Istihsab as valid, provided that it has a terminological basis, so that matters that lack legal consequences are not included. After all, Istihsab originates from common reasoning, which considers it valid unconditionally.

In matters of belief, if the subject of the presumption pertains to belief matters where only internal conviction matters, both Istihsab of the subject and of the ruling, such as Istihsab in external actions and bodily rituals, are valid. However, in matters of belief where certainty is fundamental and certainty itself has no legal effect, such as in the belief in Tawhid (monotheism), neither Istihsab of the subject nor the ruling is applicable.

Istihsab of the rulings of previous religious laws is valid if it is certain that the ruling existed in past laws and there is no valid evidence of abrogation of the ruling after the advent of Islam, thereby constituting a category of valid legal presumption.

Principle of Exoneration

In cases of legal doubt (whether in general subjects or specific ones) about obligations or prohibitions, where no evidence for a particular obligation is available and there is uncertainty about the original legal position, it is permissible to leave uncertain obligations and carry out prohibited actions. The default rule for actions is exoneration. This implies that the general state of permissibility applies unless proven otherwise. There is a distinction between exoneration and permissibility in terms of the subject matter, as permissibility applies prior to the pronouncement of divine law, while exoneration applies after such pronouncements.

The topic of exoneration, whether rational or legal, concerns the lack of knowledge about obligations. If something is known either through dedication or conscience, it will no longer serve as a subject for exoneration, such as with foundational principles, overriding principles, or specific laws that dispel doubt and remove uncertainty. Hence, exoneration is only applicable when no overarching principle is in place, as the governing principle would prevail over exoneration. For example, if doubt arises regarding the permissibility of meat and the proper method of slaughtering an animal, the presumption of its lack of proper slaughter will take precedence, and the exoneration principle does not apply regarding the prohibition of consuming the meat.

The principle of exoneration is not obligatory but is considered praiseworthy unless it leads to compulsive or obsessive actions or disturbs the legal order. Whether in instrumental or worship practices, this type of worship does not need direct religious commandments and can be based on the intention of achieving an ideal state (not an obligation), and is not considered an innovation.

The rationale for exoneration is not a law but a guidance towards adhering to rational rules and confirming reality, thus suggesting caution rather than asserting an obligation or preference. However, laxity in customs and reports, such as “whoever transmits,” and matters of recommendation are not acceptable, and anything attributed to religious law, even if recommended, must have formal authorization.

The only universally agreed-upon issue concerning religious precaution is the precaution in important matters from an Islamic perspective, such as shedding blood or violating the honour of others, whether the case is one of doctrinal or factual doubt. Thus, killing a person or violating their honour based merely on the assumption that they are not inviolable or are not entitled to protection is not permissible.

Rational precaution, also referred to as the principle of occupancy (as-Salat al-‘Ithar), pertains to the necessity of ensuring that an obligation is fully discharged in a certain and confirmed manner. The individual is certain of having a duty but is uncertain about the specific details of that duty. For instance, they know they must pray, but they are unsure whether their prayer is complete or shortened, and thus must act with caution.

The divine command for precaution in some cases, such as in cases of rational precaution, serves as a directive or guidance from the intellect, having a corrective and guiding role, and is known as an advisory command.

Rational precaution falls into three categories:

Preliminary Doubt in Judgement (before investigation): In this case, the principle of absolution (al-Bara’a) cannot be applied. Rather, until a thorough investigation has been completed, the individual must follow rational precaution.
Overall Knowledge of Certain Obligations: In a case where the individual is certain of their religious duty in relation to a particular matter but is unaware of the details, precaution must be taken by addressing all the possible scenarios and acting accordingly. For example, when one is certain that one of two wives is forbidden or that one of two actions is obligatory, but is unsure which one, one must choose the correct action through caution.
Doubt in the Fulfillment of Obligations: This category involves uncertainty about whether an individual has properly fulfilled an obligation when there is certainty about its duty, but doubt about its execution. For instance, after having performed the prayer, an individual might doubt whether they maintained purity during the prayer. According to reason, they must perform another prayer with purification, as performing a prayer in purity was obligatory, and certainty about an obligation requires certainty in fulfilling it.

The principle of precaution is applicable in cases of confined doubt because rational guidance dictates that precaution is required in such cases. There is no difference between rational and religious decrees when it comes to following precaution. Both “certain obligation necessitates certain absolution” and “it is obligatory to avoid potential harm” support the need for precaution.

The principle of occupation differs from the principle of prohibition, as the former concerns duties after the revelation of religious law, while the latter applies to matters before the religious law is clarified.

Precaution, whether in acts of worship or in worldly matters, is deemed rationally good, though it does not carry religious commendation. Commands in this context aim to guide individuals in line with rational principles. Therefore, the mere act of complying with precaution does not bring reward; rather, it is the result or effect of the action that follows that holds significance.

Rational precaution in acts of worship is possible because worship does not depend solely on the fulfilment of the religious command and the intention of seeking proximity to God. Rather, performing the act with the hope of gaining God’s favour, while believing that a command may exist, is sufficient for the act to be considered worship. Additionally, knowledge of the command is relevant only when one is capable of obtaining it, which may not be the case in instances requiring precaution.

There are three conditions for the validity of precaution:

No disruption to the social order and the preservation of it, ensuring no severe risks.
No hardship, especially in repetitive acts of worship, which may cause obsessive-compulsive behaviour.
No contradiction with other precautions, such as in the case of the property of an orphan under the care of a just person, where the precaution might be to avoid any transactions with it, but failure to act could result in the loss of the orphan’s property, which is an obligation to preserve.

The Principle of Choice (Takhyir)

The principle of choice applies when the type of obligation is known, i.e., the obligation exists, but the specific nature of it is uncertain between either being obligatory or forbidden. In this case, the obligatory task is uncertain between action or non-action, or between two or more acts where neither can be combined, nor can all be avoided. The intellect rules that the right to choose is left to the individual.

The principle of choice in fundamental principles extends beyond a mere binary choice between two conflicting options. It also applies to cases where the obligations are uncertain in their application to specific actions or duties. The application of the principle of choice either applies to a specific act whose judgment is uncertain between being obligatory or forbidden, or to two acts, where it is known that one is obligatory and the other forbidden, but it is unclear which is which, such as when one is uncertain whether to perform the midday prayer or the Friday prayer.

The application of the principle of choice requires no other options for rational investigation or precaution, so it applies when the true ruling of a subject is in doubt and there was no certainty before the doubt arose, and when precaution is not possible.

The principle of choice arises from doubt about the nature of the obligation and could apply to either the duty or the person obligated. Doubt about the duty occurs when an individual has an overall knowledge of an obligatory command but is uncertain whether the duty is to perform the action or to refrain from it, as in the case of Friday prayer during the occultation.

Doubt about the person obligated occurs when the individual is certain about two tasks, one of which is obligatory and the other forbidden, but is unsure which is which, for instance, knowing that one of two prayers (midday or Friday prayer) is obligatory, but uncertain which is which.

Doubt in either case (doubt about the duty or the person obligated) could either concern the judgment (fiqhi doubt) or the subject (the object of the doubt).

In cases of conflicting rulings, such as when one hadith commands something and another forbids the same thing, both hadiths cancel each other out, and there is no choice but to refrain from taking action. However, due to the existence of interpretive texts that resolve such conflicts, a principle of choice can be adopted, not as a mandatory choice, but as a guideline for resolving contradictions between textual sources. This is considered an example of a mandatory choice in cases of conflicting jurisprudential rulings, similar to choosing between performing a shortened or full prayer.

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The Principle of Choice (Takhyir)

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