The Theory of Zann al-Khass

The theory of zann al-khass (‘extraordinary conjecture') is most widely used by modern Usulis to substantiate the authoritativeness of some conjecture­generating forms of evidence.

If conjecture is established by a definitive evidence (dalτl qat^cτ) whereby there is authoritative certainty (hujjayaqlniyya) that the Lawgiver (Shari^f) [or God] postulates (ja^cl) it as extraordinary conjecture (zann al-khass), then such conjecture is an exceptional path (tarlq) to His precepts that He considers to be authoritative. Therefore, He is content with such con­jecture being a substantiated form of evidence (amara), which can be referred to; and He permits us to utilise it even though it is conjectural, as such conjecture is excluded from the primary [or first epistemological] underpinning... At this point, the answer to the slander from a group of Akhbaris towards the Usulrs is apparent, regarding [the point] that they [i.e., the Usulrs] utilise some evidence that are specifically conjectural, such as the isolated report and its like. They have slandered them for tak­ing recourse to conjecture that does not reveal the truth of a thing.

They have overlooked the fact that when Usulrs take recourse to forms of conjecture, they do not do so from the perspective that they are merely conjectural, but rather they take recourse to them from the perceptive that their authoritativeness is known through certainty. Therefore, taking recourse to them is like taking recourse to certainty, and not like taking recourse to conjecture, guesswork and speculation^

Muzalfar clarifies that Akhbari accusations levelled against Usulrs for follow­ing mere conjecture (like Sunnis) are unfounded, as Usulrs do not use con­jecture in ijtihad.

In what follows, I present how Muzaffar analyses conjecture generated from isolated reports. I illustrate how he uses definitive forms of scriptural and ratio­nal evidence to substantiate their authoritativeness and show that they gen­erate 'extraordinary' conjecture sanctioned by God. This analysis provides a representation of how modern Usulr advocators of the theory of zann al-khass use the theory to justify the authoritativeness of perhaps one of the most dom­inant scriptural forms of evidence used in the juristic process of ijtihad.

2. 1 Aithotatieness OjlsolatedReportsjonDejftive

ScrtptuaEvldence

Definite scriptural evidence generates certainty and is accepted to authenti­cally convey that which is in the Mind of God. The reason for this is because it is widely recurrent (mutawatir). This means that it is transmitted across dif­ferent generations by so many narrators that it becomes impossible for any­one to claim that so many people could ever be erroneous or collude together in fabricating it Usulrs technically express that widely recurrent reports, whether they are the verses of the Quran or some reports of the sunna, are scriptural sources whose chain of transmission (sanarf) generates certainty (whereby there is no doubt) that they originate from the Divine Lawgiver (i.e., God or His appointed Prophet and Imams).42 Considering this, Usulrs appre­ciate them as being epistemologically superior forms of evidence that can substantiate the authoritativeness of inferior forms of evidence that generate mere conjecture.

The first definitive scriptural evidence that Muzalfar takes recourse to sub­stantiate the authoritativeness of isolated reports is the Quranic verse that is commonly known as the verse of nabaد (or ayat al-nabaد). It reads:

If a miscreant (fasiq) brings you a piece of news (nabaد) then scrutinise (fatabayyanu) [it] so that you do not harm others through ignorance and then have to repent for what you have done.43

According to Muzalfar, the word “news" (nabaد) in its absolute usage (itlaq) refers to all types of news, including news that is relayed from isolated reports of the sunna of the Prophet and Shi'ite Imams.44 In his explanation of the verse, Muzalfar asserts that it explicitly sets forth a condition, wherein its protasis indicates “if a miscreant brings you a piece of news" and its apodo- sis indicates “then scrutinise it." He then asserts that the implicit indication (dalalat al-mafhum) of this verse conveys that the nonactualisation of the protasis leads to the non-actualisation of the apodosis.

It is important to note that Khumaynr in Tahdhlb al-usul contends that the implicit indication of this verse can be interpreted in two ways. On one hand, it can be interpreted as ‘if a non-miscreant brings a report, then do not scrutinise it.' On the other hand, it can also be interpreted as ‘if a non-miscreant does not bring a report, then there is no need to scrutinise anything [as there is nothing to scrutinise].'46 Khumayni asserts that although the former interpretation is normally preferred by Usulis, the latter interpretation is more apt according to the common custom (^curf) of linguists.47 Considering this, he opines that this verse does not provide sufficient certainty that God sanctions the authorita­tiveness of isolated reports. 48

Perhaps due to his awareness of the common custom amongst linguists, Muzalfar also presents the following verse of ‘nafara’ (or ayat al-nafara), as another definitive scriptural evidence in his attempt to substantiate the authoritativeness of isolated reports. The verse reads:

And it is not for the believers to go forth all together. Of every group (firqa) from them, a sect (ta^,ifa) should go forth (nrfrra), that they may obtain understanding (tafaqqhu) in religion, and that they may warn (indhar) their people (qawm) when they return to them, so that they may be aware.49

Muzalfar interprets that the apparent meaning of this verse conveys that it is obligatory for sects, or groups, of believers who live far away from the Prophet to come to him to seek knowledge of religion (or Islam/Sharia) and then go back to their towns or villages to ‘warn,’ or convey, this knowledge to their peo­ple (qawm).^{[14] [15] [16] [17] [18] He argues that because this verse elucidates that God ordains people to listen to, and follow, believers who have sought knowledge from the Prophet, it indicates that He sanctions their isolated reports and deems them authoritative.}

Muzalfar highlights that he is aware that the term 'sect' in Arabic is defined as a group of three or more people, and thus he accepts that it is possible for one to argue that this verse, at the most, only sanctions the authoritativeness of isolated reports that are transmitted by three or more narrators across dif­ferent generations. In his response to this argument, Muzalfar claims that although the verse conveys the obligation of a sect going to the Prophet to seek knowledge, it does not specify whether it is obligatory on them to come back and collectively warn their people or individually warn them.

Again, it is important to note that Muzalfar himself admits that not all Usulrs interpret this verse in the way he does. In fact, he suggests that there are two camps amongst them. The first camp, which includes himself, reads this verse in an atomistic manner without considering the context in which it was revealed. As shown, for this camp, the atomistic reading of the verse is sufficient in substantiating the authoritativeness of conjecture generated from isolated reports. However, the second camp approaches this verse in a con­textual manner. Although Muzalfar does not specify who exactly makes this

51 1.,2.81-.

52 1.,282..

53 1.,282-4.. argument, he claims that members of the second camp assert that the verse of nafara was specifically revealed in the context of warfare (jihad), particularly if one reads the verses before and after it, and thus it cannot be read in an atomistic manner to justify the authoritativeness of isolated reports.54

Nevertheless, despite quoting the verses of naba' and nafara to substantiate the authoritativeness of isolated reports, Muzalfar clarifies:

It cannot be hidden that the noble verses [of the Quran] that validate the authoritativeness of isolated reports cannot be claimed as being explicit (nass), because they do not provide a definitive indication (qat^rτ al-dalala). Rather, the maximum that they provide is an apparent (zahir) indication. This issue poses a problem, for as mentioned, the evidence that is used to establish the authoritativeness (hujjiyya) of [anything] that has authority must be definitive. It is not correct to establish [the authoritativeness of] anything by verses that generate conjectural indi­cation (zannτ al-dalala), as this is tantamount to proving the authorita­tiveness of conjecture with conjecture, which is not sufficient, even if [a textual source] has a definitive origin [or chain of transmission].55

Muzalfar admits that since the apparent indication of Quranic verses (zahir al-QuFan) is conjectural, it itself needs substantiation. It therefore cannot be relied upon as definitive evidence to substantiate the authoritativeness of iso­lated reports and does not convey that God sanctions their utility. Muzalfar gives the impression that by exclusively relying on these verses, UsulIs entan­gle themselves in a circular argument of using conjecture to justify the authori­tativeness of conjecture. Muzalfar explains that these verses can only be used if the authoritativeness of their apparent indication is assumed beforehand.

Nevertheless, apart from the verses of the Quran, the other definitive scripture Muzalfar refers to is the widely recurrent reports of the sunna. He admits that there are no widely recurrent reports that substantiate the author­itativeness of isolated reports in a verbatim (al-mutawatir al-lafzτ) manner. However, he points out that AnsarI in Faraid al-Usul mentions five groups of non-verbatim widely recurrent reports (al-mutawatir al-ma^cnawτ) that convey the sentiment that the Prophet and Shi'ite Imams accepted the authoritative­ness of isolated reports.56 These include:

54 Ibtd,., 2‰.

55 Ibtd., 2'75.

56 Ibtd., 2:86-89: also see, AnsarI, Fara’idal-Usul, 1:297-310.

1. Reports that convey prescription from the Prophet and Shi'ite Imams on what ought to be done in cases where believers come across contradict­ing narration of their tradition (or sunna). These reports provide guide­lines on how to choose, or prefer, one contradicting report over another.57 In his analysis, Muzaifar asserts that, since these reports convey what ought to be done when a believer comes across contradicting reports, they imply that the Prophet and Imams sanctioned believers to follow and utilise isolated reports, otherwise they would have not given prefer­ential criterions.58

2. Reports in which the Prophet and Shi'ite Imams convey that their follow­ers are permitted to directly seek knowledge of Sharia from their trusted companions. For instance, MuzaIfar expresses that there are many reports from the Sixth Imam, Ja'far al-Sadiq (d. 765) that indicate the appropri­ateness of seeking Sharia knowledge from his companion Zurara b. A'yan (d. 767). MuzaIfar analyses that because the Imam sanctions believers to take recourse to the isolated reports transmitted by Zurara b. A'yan, it implies that he accepts the general authoritativeness of isolated reports, so long as they are transmitted by people who are trustworthy. 59

3. Reports in which the Prophet and Shi'ite Imams convey the necessity of referring to scholars and people who report their traditions. For instance, MuzaIfar elucidates that there are many reports wherein the Prophet and Shi'ite Imams categorically express that “When new situations arise, refer to narrators (ruwa) of our reports, for indeed they are my authority (hujja) upon you, and I am the authority of God upon them."?9

4. Reports in which the Prophet and Shi'ite Imams stress the importance of memorising, writing, and conveying their reported tradition. For instance, MuzaIfar provides the example of the Prophet saying, “Whoever from my community memorises (hafaza) forty reports, Allah will raise him on the day of judgment as a knowledgeable person." MuzaIfar analyses that this report indicates that the Prophet sanctions the authority of isolated

57 It is worth noting that in Durus fi Ulm al-usul, Sadr is critical of UsulIs who accept that this group of reports substantiate the authoritativeness of isolated reports. He claims that they incorrectly assume that the subject matter of these reports relates to conjectural iso­lated reports. Instead, he argues that their subject matter relates to reports whose authen­ticity is already recognised as being definitive (qa7؛). He justifies this by illustrating that a person would only consult the Prophet or Shi'ite Imams about what to do with two conflicting narrations when they have no doubt regarding their authenticity. See Sadr, Durus, 2:159-66.

58 SeeMuzaSar, Usfilatjiqfi, 2-.87.

59 Ibtd., 2-.87-8.

60 1.,2-.88.

reports, otherwise he would have not stressed on the importance of pre­serving his reported tradition.6i

5. Reports in which the Prophet and Shi'ite Imams warn their follow­ers about falling prey to narrations that have been fabricated. Again, Muzalfar analyses that this group of reports implies that the Prophet and Shi'ite Imams sanction the authoritativeness of isolated reports, other­wise they would have not found it necessary to warn their followers about fabricated reports.

After analysing these five groups of reports, Muzalfar does not further elabo­rate on this point. Instead, in his final analysis he directly quotes Ansari, who claims that:

Even though these [reports] do not generate certainty, other than them, there are reports that collectively [or in groups] express that the Imams were satisfied with [their followers] acting in accordance with isolated reports. It has also been claimed in al-Wasa¹U [al-Shτ^ca] that there are widely recurrent reports which indicate [the Prophet and Shi'ite Imams sanction] acting in accordance with trustworthy isolated reports.62

It seems that Muzalfar quotes this passage because, like Ansari, he deems that the abovementioned reports do not generate sufficient certainty to sub­stantiate the authoritativeness of conjecture generated from isolated reports. However, instead of outright denying the existence of any such reports, the pas­sage of Ansari elucidates that according to the highly reputable hadith scholar, Shaykh al-Hurr al-Amili (d. 1693), there are some widely recurrent reports that in a verbatim manner convey that the Prophet and Shi'ite Imams sanctioned the utility of isolated reports and thus substantiate their authoritativeness.

2.2؛. AuthoritativenessOjlsolatedReportsjonDejinitive Consensus

According to Usulis, definitive consensus is one that all Shi'ite scholars unani­mously agree on a particular religious matter. They elaborate that when such agreement occurs, it reveals that the Hidden Imam is also amongst the schol­ars who concur.63 Muzalfar upholds that one way of acquiring a definitive

661 Ibid.

62 Ibid., 2:89: Ansari, FaraHd al-usul, 1:309.

63 For Muzalfais deliberation on consensus (,ijma‘) as an independent form of evidence of Sharia see Muzaltar, Usul al-fiqh, 2:103-20: It is important to note that Mohammad Ali Shomali explains that some Shi'ite scholars express that whenever there is a definitive consensus amongst Shi'ite scholars, it indicates that the Hidden Imam endorses the con­sensus: this is because he is duty bound to save the community from holding a mistaken consensus is by analysing a wide range of works attributed to individual jurists. If in them it is found that many jurists convey that there is a consensus on a particular religious matter, then such consensus is authoritative and gener­ates certainty that the Hidden Imam also concurs with it. 64 Muzalfar surveys that when it comes to the question of the authoritativeness of isolated reports, Shi'ite jurists widely report to contrasting consensuses. 65

On one hand, a large group of jurists assert that there is a consensus amongst Shi'ite scholars that reveals that isolated reports from the Prophet and Shi'ite Imams are authoritative and can be relied on in the process of ijtihad. According to Muzalfar, some notable jurists who report this consensus include Shaykh Thsi, Sayyid Radi al-Din b. Tawus (d. 1266), 'Allama Hilli, 'Allama Muhammad Baqir al-Majlisi (d. 1698), and Shaykh al-Ansari. On the other hand, another large group of Shi'ite jurists assert that there is a consensus amongst Shi'ite scholars that demonstrates that isolated reports are not authoritative and can­not be relied on in ijtihad. According to Muzalfar, some notable jurists who report this consensus include Sharif al-Murtada, Ibn Idris al-Hilli, and Shaykh Fadal ibn Hasan al-Tabarasi (d. 1153). Muzalfar admits that contrasting consen­suses reported by two camps of Ushli jurists cause great confusion regarding the authoritativeness of isolated reports. As a solution, he offers a summary of three arguments that Shaykh Ansari presents in al-Fara¹id al-usul to reconcile the contradicting claims of Shaykh Thsi and Sharif al-Mutada.66

1. It is possible that Murtada and Thsi define isolated reports in different ways. Ansari explains that when Murtada claims that there is a consensus on the non-authoritativeness of isolated reports, he is referring to those that are reported by non-Shi'ite narrators. Meanwhile, when Thsi claims that there is a consensus on the authoritativeness of isolated reports, he is referring to those that are exclusively reported by Shi'ite narrators. Therefore, because the subject matter of both claimed consensuses is dif­ferent, it can be said that there is no contradiction between the consen­sus of Murtada and the consensus of Thsi.

2. It is possible that when Murtada claims that there is a consensus on the non-authoritativeness of isolated reports, he is referring to isolated reports that are not contained within reliable Shi'ite canonical collections.

position. According to Shomali, the Hidden Imam can intervene by placing an idea into the mind of one or more of the scholars, so that they would never agree on forming an erroneous consensus. See Mohammad Ali Shomali, Principles of Islamic Jurisprudence (London, Centre for Cultural and Ethical Studies, 2006), 67-8.

64 Muzalfar, Usul al-fiqh, 2:120-5.

65 1.,89-190.

666 1.,91-¾.

Meanwhile, when Thsi claims that there is a consensus on the authori­tativeness of isolated reports, he is referring to isolated reports that are exclusively contained within reliable Shi'ite canonical collections.

3. It is possible that when Thsi claims that there is a consensus on the authoritativeness of isolated reports, he is not referring to isolated reports that merely generate conjecture. Rather, he is referring to isolated reports that are accompanied by other forms of evidence (mahfuz bi-l qara^,in) that enable it to generate knowledge. This understanding rec­onciles the difference between Thsi and Murtada, as Murtada too agrees on the authoritativeness and thereby the permissibility of relying on iso­lated reports that are accompanied by other forms of evidence.

Other than these reconciliations, Ansari extensively discusses other arguments that have historically been put forward by Ushlis to reconcile the contradictory claims of Murtada and Thsi.67 It remains unclear from Ansari's discussion the exact reconciliation he prefers and deems most plausible in reflecting reality. Muzalfar, like Ansari, also refrains from stating a clear preference of one recon­ciliation over another. Instead, he claims that:

Yes, Murtada has acted contrary to what he has claimed and so has Ibn Idris who has followed him in this opinion. This is because he has mostly taken recourse to reliable isolated reports that are narrated in the canoni­cal books of our people. It is difficult for him, or anyone else, to claim that all these reports are widely narrated (mutawatir) or are accompanied by other forms of evidence (mahfuz bi-l qara^,in) that give certainty of their authenticity.68

Muzaffar highlights that despite Murtada and Ibn Idris claiming that there is a consensus on the non-authoritativeness of isolated reports, in their works of juristic deductions (fiqh), they both take recourse to a vast number of isolated reports that are transmitted by Shi'ite narrators. As such, he olfers a possible way in which the paradox between their theoretical and practical works can be resolved. He argues that because both Murtada and Ibn Idris belong to the Shi'ite tradition, they are aware (as admittedly shown in their works of legal theory) of the impermissibility of taking recourse to any evi­dence that generates mere conjecture of Sharia. Their practical utility of iso­lated reports, therefore, demonstrates that they do not view them as forms of evidence that generate mere conjecture. Rather, it shows that they view them

67 SeeAn⅛an, FaraidalUl, i.3iι-¾A

68 Muzalfar, Usul al-fiqh, 2:93-4. as authoritative forms of evidence that generate substantiated conjecture. Accordingly, Muzalfar concludes that there is no contradiction between the consensuses claimed by Murtada and Tusr. When Murtada claims that there is a consensus against the authoritativeness of isolated reports, he is referring to non-substantiated isolated reports. Meanwhile, when Tusr claims that there is a consensus for the authoritativeness of isolated reports, he is referring to substantiated isolated repots.?3

To further strengthen his argument, Muzalfar notes that Ansarr in Fara^lId al-usul also reports consensuses claimed by two renowned Shi'ite biographers, Najashr and Kashsh.73 According to Najashr, there is consensus amongst Shi'ite scholars that whenever Abr 'Umayr narrates an isolated report that has a missing link in its chain of transmission (mursal sanad), it must be accepted as being authentic, as it is well known that Abr 'Umayr only accepts reports from narrators who are considered trustworthy. Similarly, according to Kashshr there is consensus amongst Shi'ite scholars that whenever a renowned Shi'ite scholar narrates an isolated report, its chain of transmission does not need to be scrutinised. By implication, both of these reported consensuses necessar­ily imply that Shi'ite scholars unanimously agree on the authoritativeness of isolated reports.

In his final remarks, Muzalfar elucidates that according to Ansarr, other than the necessary articles of religion (darurlyyat al-dln), the authoritative­ness of isolated reports is amongst one of the very few matters upon which all Shi'ite jurists agree.?] It can be said that Muzalfars overdependence on Ansarr suggests that he perhaps lacks conviction that a definitive consensus can be found within the Shi'ite jurisprudential discourse that can substantiate the authoritativeness of isolated reports.

Authotativeness OjlsolatedReportsjonDeJftive RationaILConvention

The final definitive evidence that Muzalfar takes recourse to substantiate the authoritativeness of isolated reports is the convention of rational people (bana al-^cuqala). He expresses that it is known through inductive reasoning (lstlqra^f) that rational people, in their daily lives, uphold a convention in which they rely on information that is conveyed by people or sources they deem reliable, and ignore the possibility of it being erroneous even though it falls short of

69 IbldL., 2-.94¾.

70 Ibld,., 2'.95>.

71 Ibld,., 2'.95⅛ Λs,oseeAn⅛⅛rt,Far⅛,ldal-u⅞ul, 1'.⅛4⅛ providing certainty Muzaffar clarifies that since all rational people accept and follow this convention, God, being the Head of all rational agents (ra^,Is al-Uqala), also accepts it. In addition, Muzalfar expounds that there is no proof to suggest that God prevents believers from following or taking recourse to it. Accordingly he considers the convention as a definitive form of evidence that most aptly substantiates the authoritativeness of isolated reports.73 Muzalfar clarifies his understanding by illustrating the following syllogism:

Minor Premise:

All rational beings conventionally follow isolated reports or news they deem as being reliable.

Major Premise:

God, being the Head of all rational agents, by default consents to rational conventions except when He explicitly prevents believers.

Conclusion:

Therefore, God consents to the rational convention of acting in accor­dance with isolated reports and does not prevent rational people from doing so.

Muzalfar underlines that, although rational people conventionally accept and follow isolated information or reports of reliable individuals in their daily lives, one can contend that their convention holds no value in the realm of legisla­tion. This is because the Quran categorically prohibits following any type of conjecture. In response to this contention, Muzalfar points towards the follow­ing two arguments from his teachers Isfahan! and Na'ini:

1. According to Isfahan!, Quranic verses that prohibit conjecture are instruc­

tive (IrshadI) as opposed to devotional (mawlawI). By categorising them as instructive, Isfahan! implies that the prohibition on following conjec­ture is primarily inferred from reason and only secondarily (re)confirmed within scripture.74 Considering this, Isfahan! claims that it is impossible for reason to give two contradicting judgments, whereby on one hand it judges the prohibition of following conjecture, and on the other hand, it judges the permissibility of following conjecture generated from isolated

72 Murza‰r, Ulalfiqli, 2'.possibly subjected to chastisement in the hereafter. This is evidenced by the fact that modern Usulrs stress the importance of utilising evidence that generates certainty or substantiated conjecture, even after admitting that such forms of evidence can sometimes lead jurists to deduce Sharia knowledge that does not accu­rately correspond to that which is in the Mind of God. Meanwhile, they stress the importance of not utilising evidence that generates mere conjecture, even though they admit that conjectural forms of evidence can sometimes lead jurists to deduce Sharia knowledge that accurately corresponds to that which is in the Mind of God. This feature of legal epistemology ensures that, so long as fallible jurists operate within the stipulated boundaries of Usulr legal epis­temology, they are protected with the right of excusability in front of God in instances when they erroneously make mistakes in ijtihad.

The effect of what can be described as a rather defensive legal epistemology is that it forces Usulr jurists to rely on a literalist approach in deducing Sharia knowledge. As it shall become apparent in the following section, orthodox jurists primarily deduce Sharia knowledge (or explore the Mind of God) from the scriptural evidence of the Quran and sunna (mainly in the form of iso­lated reports) using the hermeneutical primacy of apparent meaning (asalat al-zuhur). In instances when they do not find sufficient guidance from the scriptural sources, they turn to the practical principles (usul al-^camaliyya).1 Their legal epistemology prevents them from taking recourse to a wider range of rational evidence that can potentially reveal Sharia knowledge. This can perhaps be explained as the key impediment that hinders orthodox jurists in displaying dynamism in ijtihad.

As mentioned in my preface, the method of ijtihad professed by Shi'ite orthodoxy has been criticised for failing to provide adequate solutions to numerous challenges that are posed by modernity. Many commentators on Islamic law maintain that the orthodox clerical deduction and interpretation of Sharia is incompatible with several facets of modernity. The works of many Muslim reformists imply that it is only possible to reconcile Sharia with mod­ern values and institutions if it is deduced and interpreted using a progres­sive non-literalistic method of ijtihad or an epistemology that enables a jurist to take recourse to rational/contextual approaches. To illustrate the practical outcomes of different approaches (or legal epistemologies), in the follow­ing section I present a case study of how orthodox Shi'ite jurists and Muslim reformists deduce and interpret Sharia precepts concerning apostasy.