The Nature of Conjecture

A common trait amongst modern Usulrs is that they define conjecture (zann) in relation to certainty (qat').ι As will be apparent in the next chapter, modern Usulrs explain that certainty, by its very nature, provides full disclosure (bayan al-tamm) of objective reality (waqi'), and therefore it is essentially authorita­tive (hujja) in itself.

However, restricting the utility of evidence to only those that generate cer­tainty obviously limits the access jurists have to Sharia knowledge and confines their dynamism in the process of ijtihad, as a wide range of conjecture­generating Sharia sources become inaccessible. As alluded to in the previous chapter, the relationship between accepting conjecture and being able to por­tray dynamism in ijtihad seems to have been acknowledged relatively early on by rationalist Usulr scholars. Within the formative period itself, Shaykh al-Tusr was one of the first Usulrs to argue that although conjecture is gener­ally non-authoritative amongst Shi'ites, there is certain evidence (such as iso­lated reports that are relayed by Shi'ite narrators) whose conjecture must be accepted as authoritative.2

Carrying forward Tbsrs understanding, modern Usulrs distinguish two types of conjecture: namely, conjecture qua conjecture (zann bi-ma huwa zann) and substantiated conjecture (zann al-mu^,tabar). They deem the latter type of con­jecture to be authoritative and claim that its juristic utility is sanctioned by God (this is further discussed in detail in chapter 4), whereas they regard the former type of conjecture to be non-authoritative and assert that its juristic utility is prohibited in the process of ijtihad.

1 For instance, see KhurasanI, Kifayat al-Usul, 315-316; Khl't, Mabani al-Istinbat, 1:101, 174; KhuyMisbali, ².88,I⅛fah⅛nI,NihIyatalDHya,¾'.¾12.-1-6,', 'Ar⅛as the non-believers had no doubt regarding the veracity of the Prophet's mes­sage and the falsity of imitating their forefathers.® Therefore, in line with the apparent indication of this verse and the context in which it was revealed, Usulrs normally conclude that God does not sanction the juristic utility of con­jecture, as it fails to reveal what is true in objective reality.

Muzaffar, however, argues that this verse is not Sulficient in establishing the non-permissibility or the prohibition (hurma) of following and acting in accordance with conjecture in thejuristic process of ijtihad. Accordingly, he supports this verse by additionally quoting the following verse:

They follow nothing but conjecture: they do nothing but lie.7

Muzaffar asserts that the apparent indication of this verse expounds that God considers following and acting in accordance with conjecture as being equal to lying. He points out that there are numerous instances in the Quran wherein God categorically explicates His contempt towards those who forge or invert a lie against Him or attribute a lie to Him. 8 In light of such verses, Muzalfar explains that the abovementioned verse signifies that a jurist cannot deduce Sharia precepts and attribute them to God by using evidence that generates mere conjecture, as doing so would be tantamount to forgery. As such, he, together with his teacher Muhammad Husayn al-Gharawr al-Na'n, claims that, just as forgery is prohibited by God, so is following and acting in accor­dance with conjecture. This implies that if a jurist utilises conjecture in ijtihad, he is elfectively committing a sin and for this reason he may be subjected to chastisement in the hereafter

In support of the above verses, there are numerous reported traditions from the Prophet and the infallible Shi'ite Imams that directly or indirectly indicate the non-authoritativeness of conjecture.

6 See Mulammad Husayn al-Tabataba'!, Al-Mlzanfi tafslr al-Qur’an, 19:41-42.

7 Quran 6:116.

8 For instance, Quran 10:59 expresses “Say: Have you seen what Allah has sent down to you of provision of which you have made [some] lawful and [some] unlawful?" Say, “Has Allah permitted you [to do so], or do you invent [something] about Allah?"

9 See Muzalfar, Usul alfiqh, 2:23; also see Na’ini, FawaHd al-Usul, 3:120.

[There are] four types of judges, three of them are in fire and one in paradise: A person who judges with injustice, and has knowledge (^cilm) of it, then he is [destined] for fire. A person who judges with injustice, and has no knowledge of it, then he is [destined] for fire. A person who judges truthfully, and has no knowledge of it, then he is [destined] for fire. A person who judges truthfully, and has knowledge of it, then he is in paradise.“

This report concerns legal arbitration that is carried out by a judge (qadl). Its apparent indication emphasises the overarching importance of arriving at a correct judgment or accurate knowledge. Apart from condemning an inaccu­rate judgment, this report signifies that God also condemns those who arrive at an accurate judgment by sheer coincidence. Although this report was nar­rated in the specific context of legal arbitration, Usulrs generally understand that its apparent indication suggests that all conjecture-generating forms of evidence cannot be utilised in the juristic deduction of Sharia because their indication can be erroneous and can effectively lead a jurist to give an inac­curate judgment.“ Usulrs perhaps choose to quote this specific report because it supports their overall legal epistemology that emphasises that Sharia knowl­edge can only be deduced using a justified and sound methodology, which not only attempts to arrive at accurate knowledge of Sharia but also guards a jurist with immunity from being held accountable in the hereafter.

Na'ini asserts that the apparent indication of the scriptural sources is suf­ficient in proving the non-authoritativeness and the prohibition of the juristic utility of conjecture, and therefore one does not necessarily need to refer to any rational arguments to establish this.12 However, it can be said that since the evidentiary nature and authoritativeness of apparent indication of scrip­ture itself is evaluated in legal theory, by exclusively relying on it to prove the non-authoritativeness of conjecture overall creates a logical fallacious circu­lar argument, wherein the non-authoritativeness of conjecture is effectively proven using conjecture. At this juncture, it is important to clarify that Usulis admit that the scriptural sources of the Quran and sunna can be interpreted in several different manners, as each verse or phrase of scripture can indicate sev­eral possible meanings. Amongst the different meanings, Usulis advocate that when it comes to deducing Sharia knowledge, only the strongest or the most

10 See Mul ammad b. Husayn Hur al-'Amili, WasaHl al-ShTa, 27:173.

11 For instance, also see Ansari, FaraHd, 1:132; Muzaftar, Usul al-fiqh, 2:23; Na'ini, FawaHd, 3:120; Khumayni, Tahdhlb, 2:404.

12 Na'ini, FawaHd, 3:120-22.

'apparent' meaning of scripture is authoritative and, thus, they advocate the primacy of apparent meaning (asalat al-zuhur). Although they admit that this primacy may not always accurately reflect Sharia as it is in the Mind of God, they advocate its utility in Ijtlhad because they conclude (after extensive delib­eration) that it generates conjecture that is substantiated and sanctioned by God.13 Considering this, it can be said that the primacy of apparent meaning of scripture can only (exclusively) be taken to prove the non-authoritativeness of conjecture qua conjecture after its own authoritativeness is established. If one exclusively takes recourse to apparent indication prior to evaluating its authoritativeness, as Na'ini seems to do, then they inevitably risk entangling themselves in a circular argument.

Nevertheless, Muhammad Baqir al-Sadr in Durusfi ^rilm al-usul argues that by exclusively relying on scripture, Na'ini is inaccurately categorising scriptural injunctions against conjecture as devotional commands. 14 Usulis normally uphold that all scriptural injunctions can either be categorised as devotional commands (or amr al-mawlawi) or instructive commands (or amr al-irshadi). A devotional command, such as the injunction to perform daily prayers (salat) (and the details of how to perform them), can only be found in the texts of the Quran and sunna. It is not something that can be independently compre­hended by reason. Meanwhile, an instructive command refers to injunctions that are primarily comprehended by, or deduced from, reason and are also cor­respondingly mentioned within scriptural sources. Their purpose is to merely reinforce injunctions that believers already comprehend through reason. For instance, Usulis normally give the example of the obligation of being just. They claim that reason, without the necessary aid of scripture, can independently comprehend the moral value or the goodness (tahsin) of being just. Yet it is found that scripture also ordains it obligation, as this reinforces and empha­sises its necessity. 15 Accordingly, Sadr categorises scriptural injunctions against following conjecture as instructive commands. For him, as with most other modern Usulis, the non-authoritativeness of conjecture and the prohibition of

13 For instance, see Ibid, 4-.722-72¾ Khsft, MabdR alistirt, 4'.4Mabaltith a!u⅞dl: alAwamtr alMawlawiyya wal Irshadiyya, (Beirut: Dar al-'Uldm, 2010).

following it is something primarily comprehended by reason and only supple- mentarily reinforced within scripture.]®

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