The Subjects of the Principles

So as to acquaint the respected reader with the issues of the Principles of Jurisprudence we will discuss the main outline, not in the order followed by the scholars of the Principles, but in an order which will better suit our purposes.

Previously, we stated that the study of Principles is a study of instructions, meaning that it teaches us the way of correctly and validly deducing the commandments of religion from the original sources. Following upon this, the issues of the Principles are all related to the four types of sources, which we spoke about in the second lesson. Thus the issues of the Principles are related either to "the Book", i.e. the Quran, or to the Sunnah (or to both, since both are originally verbal Sources) or to consensus or to reason.

Now I wish to say that it is possible for us occasionally to meet circumstances in which we cannot deduce the necessary Islamic law from the four sources. In such circumstances the Islamic Shari'ah is not silent and has established for us a system of rules and practices from which we can interpret the apparent law.

Acquiring the apparent duty of application (from the requisite rules) after having failed to deduce the actual duty requires that we learn the correct method and instructions of benefitting from those rules.

Thus the study of the Principles, which is a study of instructions, becomes divided in two parts. One part contains instructions for correct and valid deducing of the actual laws of the Shari'ah from the relevant sources. The other part is related to the correct and valid way of benefitting from a chain of rules for application after having lost hope of deducing. The first part is called the principles for deducing (usul ul-estanbatiyah), and the second part is called the principles for application (usulal-'amaliyah) (of the special rules when there is no hope of deducing).

Furthermore, since the principles of deducing relate to deducing either from the Book, from the Sunnah, from consensus or from reasoning, the issues of the principles of deducing are divided into four parts. We will begin our discussion with the Book.

The Binding Testimony of the Quran's Apparent and Accepted Realities (zawahir)

In the Principles of Jurisprudence there are not many discussion particular to the Quran. The discussions relative to the Quran are basically related both to the Book and to the Sunnah. The only discussion centered solely on the Quran concerns the binding testimony of its apparent realities, by which is meant the question of whether the apparent laws of the Quran -regardless of whether or not they are qualified, conditioned and explained by existent or authentic traditions-are binding testimonies for the jurisprudents to unconditionally rely on.

It seems to be surprising that the usulin, those learned in the Principles, should have thought up such a debate. Could the legitimacy of a jurisprudent, relying on the apparent laws of the ayahs or verses of the sacred Quran be ever subject to doubt? This is a discussion that was introduced by the Shi'ite 'ulema of the Principles in order to negate the misgivings of the akhbariyyin, who, as has been shown, believed that other than the holy ones (The Prophet, his daughter and the twelve Imams, peace be upon them all) no one has the right to refer to the Quran, or to deduce the Shari'ah from it. Or, in other words, the eternal benefitting of Muslims from the Quran must be indirect, must be via the Sunnah of the Ahle Bait, the Prophet and the purified members of his House. This claim of the akbariyyin was based upon the Traditions that have forbidden interpreting the Quran by view.

The 'usuliyyin, however, have proved that the deducing of Muslims from the Quran is direct, and that the meaning of the prohibition of 'interpreting the Quran by view' is not that people have no right to understand the Quran by their own thought and reflection, but that the Quran must not be interpreted according to desire and inflated ego.

Furthermore, the Holy Prophet and the Imams have authentically reported to have told us that forged Traditions would appear, and in order to distinguish the true from the false, we must compare all Traditions with the Quran, and any Traditions that disagree with the Quran must be realised to be false and thus be disregarded, meaning that they are not worthy of any respect. This of course cannot be done without referring to the Quran. What is more, the same Traditions make it clear that, in complete contrast to the claims of the akhbariyyin, the Sunnah is not the criteria of the Quran, rather the Quran is the criteria of the Sunnah.

The Apparent and Accepted Realities (zawahir) of the Sunnah

About the binding testimony of the Sunnah, by which is meant the Traditions and narrations that have reiterated the words, actions and silent assertions of the Prophet and the Imams, two important subjects are discussed in the study of Principles.
One is the question of the binding testimony of the khabar al-wahid, the Single Report, and the other is the question of the Traditions which are opposed to the Quran, and which, as we have seen, are to be rejected. Thus it is in this way that two important branches of the study of Principles is opened, one called the Single Report, (khabar al-wahid) and the other Unification and Preference (t'adul wa tarajih).

The Single Report (khabar al-wahid)

The Single Report is a Tradition that has been reported from the Imam or Prophet but by only one person, or is reported by more than one person but does not reach the level of being consecutively related by so many different people that there is no possibility of the Tradition being in any way wrong (tawatur). Now, can such a Tradition be used as a basis for deducing the Shari'ah or not?

The 'usuliyyin believe that, provided the Transmitters of the Single Report from the first to the last were all just or at least were probably truthful, the Traditions they have narrated can be used to deduce the relevant law. One of the justifications for this claim is the holy ayah of the Quran, in which we are told, "If there comes to you a wicked man with news; examine." (49:6), which means that if a wrong-doer comes and gives us some news, we are to research into his report, and without having definitely established the validity of the report, we are in no way to put it into effect. Similarly, the ayah tacitly indicates that if a just person and reliable person gives us a report, we are to put it into effect. The tacit meaning of this ayah, therefore, is proof of the binding testimony of the Single Report. [5]

Unification and Preference

Now the issue of opposing Traditions. Often it occurs that various Traditions on the same subject are opposed to each other. For example, about whether we should recite the thikr (rememberance) of the third and fourth units of prayer (rak'ats) - called the tasbihat al-arb'ah - three times in each unit or whether only one time is enough, from some Traditions it is learned that it must be said three times, while in one Tradition we learn that one time is enough. Or about whether it is permissable to sell human manure, there are likewise various Traditions that oppose each other.

What must be done when we have such varying Traditions? Must we consider that when two contrasting reports exist we are to ignore them both, just as if we had no Traditions on that subject at all? Or do we have the option of acting according to whichever of them we like? Or are we to act according to precaution and thus to the Tradition that is nearer to precaution (which, pursuing our previous example of the thikr of the third and fourth units of the prayer, would mean acting according to the Traditions that tell us to recite it three times, and in the example of the issue of selling human manure, to the Traditions that tell us it is forbidden)? Or is there another way of acting?

The 'ulema of the Principles have determined that firstly the unified content of all the varying Traditions must as far as possible be implemented, and, if this is not possible, and neither of the two sides has preference over the other in some way, such as in the reliability of the chain of narrators, in its credibility amongst earlier 'ulema who may have had some other testimony that we have missed, or in its being clearly not due to taqiyah, [6] and such like, we have the option to act according to whichever of them we like. [7]

There are Traditions themselves that contain the instructions of what, in the case of contradicting Traditions, we are to do. The Traditions that lead us to the resolving of the difficulty of contradicting Traditions are called Corrective Reports (akhbar ul-'elajiyah).

The 'ulema of the Principles, on the basis of these Corrective Reports, have expressed their views on the contradicting Traditions. This is the branch of the study of Principles that has been named "unification and preference" and which discusses the unification of opposing Traditions, and the superiority of some over others.

From what has been said it is clear that the issue of the binding authority of apparent laws is relevant to the Book and the issues of the Single Report and of the contradicting testimonies concern the Sunnah. Now it is to be said that there are issues in the Principles that are common both to the Book and to the Sunnah and these we will talk about in the next lesson.

Lesson Five: Issues Common to the Book and the Sunnah

In the previous lesson we showed some of the issues of the Principles that were particular either to the Book or to the Sunnah, and at the conclusion of the lesson it was said that some issues of the Principles are related both to the Book and to the Sunnah. In this lesson we will pay attention to these common discussions.

The common discussions consist of the following:

a. The discussion of imperatives (awamir)
b. The discussion of negative imperatives (nawahi)
c. The discussion of generalities and particularities (aam wa khas)
d. The discussion of unconditional (mutlaq) and conditional (muqayyad)
e. The discussion of tacit meanings (mafahim)
f. The discussion of the abstract (mujmal) and the clear (mubayyan)
g. The discussion of the abrogator (nasekh) and the abrogated (mansukh)

Now, within the limits of merely becoming acquainted with these terms, each one will be separately discussed.

The Discussion of Imperatives (awamir)

The Arabic awamir is the plural of the word amr which means command. It also means the type of verb form that in English is called imperative, such as the verb form: Listen ! or Stand !

In the Book and the Sunnah, many of the phrases are in the form of the imperative, and it is here that many questions are raised in jurisprudence that must be answered in the study of Principles. Such questions as to whether or not the imperative is a proof of its being obligatory (wajib) or of being desirable, or of neither. Does the imperative signify that the verb is to be done once or a number of times?

For example, the Quran contains the following instruction, "Take from their property charity, you cleanse them and purify them thereby, and pray for them; your prayer is a soother for them" (9:103) "Pray", in this holy verse, means supplicate, or send a blessing. Here, the first question that is raised concerns the status of the imperative verb form, "pray". Does it mean that to supplicate for them or send a blessing upon them is obligatory? In other words, is the imperative here an indication of obligation or not?

The second question is as to whether or not the imperative is an indication of immediate obligation? Is it obligatory that right after taking the divine tax (zakat) prayer is to be offered for them, or is an interval no problem? Thirdly, is one prayer enough or must it be performed repeatedly?

In the study of Principles, these matters are all discussed in depth, but here is not the place to discuss them further. Those who choose to study Jurisprudence and the Principles will naturally learn about these details.

The Discussion of Negative Imperatives (naw ahi)

The Arabic word nawahi is the plural of nahy which means to stop or prevent, and is the opposite of amr, the imperative. If in English we say, "Do not drink alcohol," this is a negative imperative in English and in Arabic a nahy. Both in the Book and in the Sunnah there are many phrases which are negative imperatives.

Similar questions arise on this subject to those we saw on the subject of the imperative. Is the negative imperative testimony for the object of the verb being forbidden (haram) or for it being undesirable (makruh) but not forbidden (haram)? Likewise, does the negative imperative testify permanency, i.e. that the action of the verb must never be done, or that it is only to be refrained from during a temporary period?

These are questions the answers to which are provided by the study of Principles.

Discussion of Generalities and Particularities (aam wa khas)

In the civil and penal laws of human society, we notice that a general and common law exists which applies to all, and we then notice that there also exists another law related to a group of individuals from that society; a law that is opposed to the common and general law.

In such instances, what is to be done? Must the two laws be received as being self-contradicting? Or, since one of the two laws, compared to the other, is general while the other is particular, is the particular law to be received as an exception to the general law?

For example, we are told in the Quran that divorced women must wait after their divorce for three monthly periods, and after that term they are free to remarry. In reliable Traditions, however, we are told that if a woman is married by a man, and before marital relations (i.e. sexual intercourse) occurs between them, the woman is divorced, it is not necessary for the woman to observe the term.

What are we to do here? Are we to consider this Tradition to be opposed to the Quran and therefore reject it and disregard it just as we have been instructed? Or are we to consider that, on the contrary, this Tradition, in reality, expounds the Quranic ayah for us, that it has the rank of an exception in certain of the particular circumstances, and that the Quran is in no way contradicted by it.

It is the second view that is the correct and valid one of course, for man is used to having a law introduced in the general form and then having the exceptions explained. Man is not used to having the exceptions explained before the law is introduced, and the Quran has addressed human beings on the basis of the terms and language of mankind. In another place the Quran itself has counted the Traditions of the Prophet as being reliable. "What the Prophet gives you, take! And what he has prohibited you, avoid!" (59:8). In these types of circumstances, we receive particularities as having the rank of exceptions to generalities.