Rational justifications against Conjecture

As noted, modern Usulrs normally compare the nature of conjecture with the nature of certainty. As it will be shown in the next chapter, they argue that cer­tainty is authoritative by its very nature because it generates absolute knowl­edge or full disclosure (bayan al-tamm) of that which is in objective reality (waqi^c) or in the Mind of God.

In contrast to certainty, Usulrs assert that conjecture qua conjecture, by its very nature, does not provide full disclosure of objective reality or that which is in the Mind of God. As such, they conclude that if a person does not follow an ordinance that is only conjecturally known, then God does not reserve the right to hold them accountable or subject them to chastisement in the hereaf­ter. For example, if the ordinance of punishing an apostate is only conjecturally known (or known through evidence that generates conjecture) then a believer cannot be held accountable for not following it because there always exists a possibility that it may not accurately correspond with (or may contradict) that which - in reality - is in the Mind of God. Usulrs usually derive this under­standing by taking recourse to the rational principle of ‘qubh al-^riqab bi-la bayan' (‘the blameworthiness of chastisement without disclosure'). In accor­dance with this principle, reason dictates that it is repulsive and immoral for a rational master to hold their subordinate accountable for failing to enact (or incorrectly enacting) a duty or a responsibility (takllf) that is not Sulficiently disclosed by the master.

16 See Sadr, Durus, 2:49; also, for instance see Khumaynr, Tahdhlb, 2:382-3; Khu, Abu Qasim

al-. Misbah al-Usul, 2 vols. Transcribed by Muhammad Surur (Qum: Makataba al-Dawiri, 2001), 1:114.

abides with the definite rational moral judgments of rational people and there­fore abides with the principles of qubh al-^ciqab bi-la bayan.17 In this sense, by analogising the mastership possessed by God with the mastership possessed by rational humans, Usulrs conclude that the extent of God's right over His subor­dinates is equivalent to the extent of the right a human master possesses over his subordinates. The same way as it is repulsive for a human master to hold his/her subordinate accountable without clearly disclosing an ordinance, it is repulsive for an unflawed, just and rational Divine Master to hold His subordi­nates (or believers) accountable without clearly disclosing Sharia ordinances. Accordingly, Usulrs conclude that because non-clear or conjectural disclosure does not bring about accountability, evidence that generates mere conjecture cannot be categorised as being authoritative (hujja). This means that a jurist is not required (or rather, is prohibited) from following evidence that generates mere conjecture, for if a jurist follows it and thereby errs in his deduction of Sharia, then he can be held accountable and rightfully be subjected to chas­tisement by the Divine Master.18

The idea that conjecture by its very nature is non-authoritative prompts the majority of modern Usulrs to profess the primacy of exemption (asalat al-bara>a))^a In accordance with this primacy, a jurist is exempted from follow­ing the indication of any evidence that generates conjecture qua conjecture of Sharia in the process of ijtihad, even if there is possibility that its indication may accurately reflect Sharia that exists in the Mind of God.

Ctlq OjtheRatonalJusticao

In Durusfi ^rilm al-usul, Muhammad Baqir al-Sadr dismisses the popular rational justification offered by modern Usulrs to establish the non-authoritativeness of conjecture. He elucidates that by formulating the principle of ‘blamewor­thiness of chastisement without disclosure,' some Usulrs fall into the trap of falsely analogising the mastership possessed by God as being univocally paral­lel to the mastership possessed by a human master. Sadr attempts to prove the falseness of this analogy by arguing that, in Shi'ite theology, the property of

17 For a detailed study of how the relationship between reason and morality is presented in the modern Shi'ite UsulI discourse see Bhojani, Moral Rationalism and SharFa, 80-91.

18 For instance, see Khl'I, Mabanl al-Istinbat, 1:377; Khu’1, Misbah, 1:438; 'AraqI, Maqalat, 2:16, 136; IsfahanI, Nihayat al-Diraya, 2:6; AnsarI, Farald, 2:282; KhumaynI, Tahdhlb, 2:406, MuraffiarUulaqh., 2'.⅛7~⅛.

19 For instance, see KhurasanI, Kifayat al-Usul, 338; KhumaynI, Tahdhlb, 2:392; IsfahanI, Nihayat al-Diraya, 4:20, Kht'I, Misbah, 1:456. mastership attributed to God is accepted as an essential part of His essence. Whereas, in contrast, the mastership possessed by a human master is not essential to their essence, but instead is merely accidental. In this sense, it is possible to conceptualise a human being without possessing the property of mastership, whereas it is impossible to conceptualise God without the prop­erty of mastership. Based on this distinction, Sadr expounds that the principle of ‘blameworthiness of chastisement without disclosure' is only rationally sound when applied to a human master. It is not appropriate to apply it to God, for His divine mastership contrasts significantly with the rationally com­prehensible mastership of the human master.

Alternatively, Sadr proposes that the extent of God's mastership cannot be proven by logical or rational demonstration, but rather it is something that is intuitively known. According to him, a believer intuitively recognises that since God is the Creator (khaliq) of all things, He, by His very essence, is the Master (mawla) and the Proprietor (malik) of all things, and due to Him possessing such attributes, He necessarily possesses the absolute right of obedience (haqq al-fd'a).21 This means that his subjects not only have to be obedient to, or abide by, instances of God's Sharia that are fully disclosed, but also instances that are not fully disclosed, whether they are conjectural or doubtful (shakk or ihtimal). For Sadr, God thus possesses the right to not only hold a person accountable for acting in a way that is contrary to an ordinance that is fully disclosed, but also for acting in a way that is contrary to ordinances that are disclosed with con­jectural or doubtful disclosures. For Sadr, every disclosure (inkishaf) of Sharia, whether it is issued through evidence that generates certainty or evidence that generates conjecture or mere doubt, is deemed authoritative (hujja). In other

20 See Sadr, Durus, 1:188, 2:35-8: a more detailed explanation of Sadr's view on this is explained in the lecture notes taken by his student Sayyid MalmUd HashimI al-Shahrudi, see ShahrudI, MalmUd HashimI. Buhuth fi Ulm al-usul, 7 vols. (Beirut: Mu'assasat Da'ira Ma'arif al-Fiqh al-Islami, 2005), 4:186-187: Also see Kamal HaydarI, Al-Zann: Dirasatfi hujjiyyati-hi wa aqsami-hi wa ahkami-hi (Qum: Dar al-Faraqid, 2008), 26-32.

21 Sadr, Durus, 2:221. It is important to note that another argument that Sadr gives to prove that God possesses absolute right of obedience (haqq al-ta'a) is that of wujub al-shukr al-munUm.

words, unless stipulated otherwise, a believer is required to follow and act in accordance with every disclosure, even if there is only a slim possibility that it (in reality) corresponds to the Sharia that is in the Mind of God.22

Therefore, in contrast to the primacy of exemption, Sadr's understand­ing leads him to give preference to the primacy of preoccupancy (asalat al-ishtigha[).23 In accordance with this primacy, a believer is required to be ‘preoccupied' with, or undertake, every possible Sharia injunction. Believers can only be exempted from performing conjecturally disclosed injunctions if they possess certainty that God permits their non-performance.

Kamal al-Haydari (b. 1959), a contemporary Ushli marja^c who studied under the tutelage of both Sadr (who subscribes to the primacy of preoccupancy) and Abh Qasim a!-Khh'i (who, like other Ushlis, subscribes to the commonly accepted primacy of exemption),24 published a book entailed al-Zann, wherein he provides a synopsis of the lectures he delivered on the Ushli under­standing of conjecture in its utility in the juristic process of Jtihad. In his book, Haydari admits that Sadr is accurate in criticising the rational justification that is popularly offered by Ushlis tojustify the non-authoritativeness of conjec­ture. Like his teacher, Haydari too asserts that it is false to univocally analo- gise the mastership possessed by God to the mastership possessed by a human master. However, he interestingly points out that it is inaccurate to suggest that God's absolute right of obedience is because of Him being the Creator and the Proprietor of all things.

It is possible to consider that God can recompense a sinner in two dis­tinct ways; if we look at God as being the Most Decisive Judge (hakim), then it is more than likely to conclude that God would punish the sinner. However, if we look at God as the Most Merciful (rahman), then it is more than likely to conclude that God would pardon the sinner. Elfectively, it

22 See Sadr, Durus, 2:36-7.

23 Ibid., 2:304; also see Haydari, al-Zann, 31.

24 For instance, see Khh'i, Mabani al-Istinbat, 1:377; Khh'i, Misbah, 1:438.

25 Haydarl, al-Zann, 31.

is found that there is somewhat a conflict between the respective names and attributes of God.26

This passage illustrates that Haydari considers there is no definite rule regard­ing how God chooses to deal with a believer. For instance, if a believer, or more precisely a jurist, opts not to follow evidence that generates conjecture, and as a result fails to deduce a Sharia precept that exists within the Mind of God, then it is possible for God, being the Creator and the Proprietor, to hold him accountable; likewise, it is also possible for God, being the Most Merciful, to grant him the right of excusability for opting not to follow something that is merely conjecturally disclosed. Consequently, Haydari rather pragmatically concludes that the extent of God's mastership over believers only extends to a point where His divine names and attributes do not convene and contradict (or cancel out) the effects of one another. He asserts that the only time this is pos­sible is when God (or the divine master) discloses or explicates a Sharia injunc­tion with full disclosure.27 Accordingly, if a believer possesses full disclosure of a duty, and yet acts contrary to it, then God - through being the Creator and the Proprietor - can hold him accountable, and in such an instance His other names and attributes would not have any contradictory effects. Therefore, by building on Sadr's argument, Haydari clearly supports the popular Usuli con­clusion, which is that the mastership of God only reaches the extent of when He provides full disclosure of Sharia and thus gives the impression that he opts to choose the primacy of exemption over the primacy of preoccupancy.

Implications 0∫ ds Eplstemology

A key implication of Sadr's proposed epistemology is that, in theory or, as he says, ‘in the realm of possible occurrence' (fi-l maqam al-thubut), all evidence that generates Sharia knowledge is authoritative. At the outset, his understand­ing impresses that for him, other than the commonly accepted four-fold cate­gorisation of evidence, a jurist can utilise sources and hermeneutical methods that are not normally utilised in the process of ijtihad. However, Sadr is quick to point out that:

Indeed, the subject matter of accountability (munajjaziyya) unrestrict­edly includes all kinds of disclosed duties, even if the disclosure is conjec­tural. This is because of the vastness of the right [God has] of obedience. However, this right of obedience and accountability is based on there

26 Ibid-

27 1.,32.. being no consent from the [Divine] Master Himself [that permits a believer] to act contrary to the [disclosed] duty. This [consent] is issued by Him as a serious amnesty (tarkhlsjadd) that allows acting contrary to the disclosed duty.28

In this passage, Sadr clarifies that although any evidence that generates Sharia knowledge can be utilised in ijtihad, God can issue an amnesty (tarkhls) that allows a believer (or a jurist) to not follow particular types of evidence. He sug­gests that the authoritativeness of evidence is not dependent on the amount of disclosure it provides, but rather it is dependent on the postulation of God.29 Due to the vastness of God's mastership, He possesses the right to postulate or abstain from postulating the property of authoritativeness to any evidence (or disclosure, whether it is full or partial) that He wants. This means that if God wants, He can issue an amnesty that undermines the default authoritativeness of evidence, in which case its juristic utility must be discarded in the process of ijtihad.

Sadr moves on to assert that in practice, or as he says, ‘in the realm of physi­cal occurrence' (fi-l maqam al-ithbat), it is only logically possible for God to issue a believer (or a jurist) with an amnesty to follow forms of evidence that generate mere conjecture (or partial disclosure) of Sharia as opposed to cer­tainty (or full disclosure). This is because God can only issue an amnesty by providing another disclosure that is epistemologically superior to the conjec­tural disclosure that is already possessed by the believer. According to Sadr, God has issued amnesties in the form of practical principles (usul al-^camaliyya).^{[8] [9]} These principles enable jurists to deduce a practical standpoint in cases where they only have conjectural knowledge of Sharia. For instance, if a jurist has access to conjectural evidence that indicates that Sharia ordains that ‘it is obligatory to perform supplication (du^ca) each time one witnesses the moon,' then although in theory a jurist is required to follow it, in practice God has issued an amnesty that allows him not to follow the conjectural indication of such evidence. The amnesty in this case may be issued, for example, in the form of the practical principle of exemption (asalat al-baraa), which due to its epistemological superiority rules that a believer is exempted from follow­ing a duty that is not fully disclosed. Usulrs tend to regard practical principles as being epistemologically superior to conjecture because they claim that the juristic utility (or the authoritativeness) of practical principles is rationally and Scripturally sanctioned (or substantiated) by God.

Meanwhile, Sadr claims that in practice it is logically impossible for God to issue a believer (or a jurist) with an amnesty that permits him to act contrary to a duty that is fully disclosed, or he has certainty of. He justifies this by taking recourse to the Usulr distinction between real and apparent Sharia precepts. A real precept (hukm al-waqil) refers to a Sharia precept that is in the Mind of God and can be deduced from evidence that generates either certainty or substantiated conjecture. Whilst an apparent precept (hukm al-zahirl), refers to a Sharia precept that provides a jurist with a practical standpoint when the real precept is unknown and is deduced using the practical principles. Usulrs uphold that in the process of ijtihad, a jurist must endeavour to primar­ily deduce real Sharia precepts, and only when access to them is limited, or ambiguous, can he, secondarily, take recourse to practical principles to deduce apparent Sharia precepts. Nevertheless, considering this distinction, Sadr asserts that if God issues a jurist with an amnesty to not follow evidence that fully discloses a duty by issuing a real precept, then this implies that the jurist is confronted with two conflicting duties at the same time. For instance, if a jurist has access to evidence that fully discloses the obligatory duty of performing Friday congregational prayers (?alataljumu'a), then, as far as he is concerned, this represents the real Sharia precept. If God then issues another contradict­ing real precept that indicates (or fully discloses) the non-obligation of per­forming Friday congregational prayers, then a jurist is effectively faced with two contradicting certainties. On one hand, he possesses certainty of perform­ing the duty of Friday congregational prayers. On the other hand, he also pos­sesses certainty of not preforming the duty of Friday congregational prayers. According to Sadr, this occurrence is logically impossible, as two contradictory things cannot exist at the same time. He emphasises this point by demonstrat­ing that something cannot be both 'hot' and 'cold,' or 'black' and 'white,' at the same time. Likewise, there cannot be two contradicting real precepts that are both fully disclosed with certainty. 3إ In addition, Sadr also elucidates that the criterion (milak) by which God ordains any act (or a Sharia precept) is that He loves its performance, whilst the criterion of Him prohibiting an act is that he detests its performance. Accordingly, if God issues two contradicting precepts, whereby one indicates an obligation and the other indicates a prohibition, then this evidently implies that there is confusion within the Mind of God, as

31 Ibdf., 2.40-2..

He both 'loves' and 'detests' the same action at the same time.32 According to Sadr, it is indeed impossible for an omnipotent God to be confused and thus he once again elaborates that it is logically impossible for God to issue two conflicting real precepts as the same time.

Sadr then moves on to consider whether God can issue an amnesty that per­mits a believer to act contrary to full disclosure by issuing an apparent precept (Kukm al-zahirl). He maintains that this too is not possible, because an appar­ent precept is only taken recourse to in cases when the real precept is undis­closed or is disclosed in an ambiguous manner. 33 For instance, if a jurist has full disclosure of the duty of performing Friday congregational prayers, then he knows the real Sharia precept. He cannot, therefore, take recourse to, for example, the practical principle of exemption, and deduce that believers are exempted from the duty of performing Friday congregational prayers, as there is no need to refer to an apparent Sharia precept when the real Sharia precept is known with full disclosure.

In essence, although Sadr theoretically (orfi-l maqam al-thubut) gives pref­erence to the primacy of occupancy, and thereby upholds that a jurist must utilise every evidence that generates conjecture qua conjecture of Sharia, in practice (fi-l maqam al-ithbat), or when it comes to the practicaljuristic process of ijtihad, he acknowledges that there are epistemologically superior forms of evidence that prevent a jurist from utilising conjecture generating evidence. Sadr's practical epistemological outlook is summarised in the fol­lowing statement:

If evidence generates certainty, then it is authoritative based on the [self-evident] authoritativeness of certainty (Kujjiyyat al-qat^f). If this is not the case, then one must take recourse to evidence that generates cer­tainty to substantiate the authoritativeness [of other forms of evidence that do not generate certainty in themselves]. And as for those cases when there is no [access to] evidence that generates certainty [at all], then there is doubt (shakk) on whether [or not] God has postulated the authoritativeness of a particular evidence. [In such cases,] the primary principle (al-a^l) is of non-validity (ⁱadam al-Kujjiyya). What we mean by this primary principle is that when there is doubt over authoritativeness

32 Sadr's deliberations here are further clarified by his student Kamal Haydari, see Haydari,

33 See Sadr, Durus, 2:41-2.

[of a particular evidence] then it cannot be practically utilised [in juristic process of deducing Sharia].34

This statement demonstrates that, in practice, Sadr's epistemology is remi­niscent of the popular Ushli position. Like most modern Ushlis, he effectively upholds the epistemological underpinning of the non-authoritativeness of conjecture qua conjecture in the practical juristic process of ijtihad and insists that a jurist can only take recourse to forms of evidence that generate either certainty or substantiated conjecture of Sharia.