The fixed and changeable in Islamic Legislation (3)

Click for Lesson 1, Lesson 2

بسم الله الرحمن الرحيم و صلی الله علی محمد و آله الطیبین الطاهرین

This is a translation of lessons given by Ayatullah Sayyid Munīr al-Khabbāz attended in the year 2019-20. For the sake of comprehensibility, there has been additions, removals and paraphrases. My comments will be italicized. Original transcripts can be found here.

In continuation of the previous lesson, Sayyid will analyse and critique the second argument raised against the authority of theoretic reason in the deduction of Islamic laws.

1 Review

The changing of a ruling while its subject has not changed or the establishment of a new ruling which has no evidence in religious sources, are both presented and substantiated by reason and rationality.

For example, some researchers have proposed that the testimony and religious verdicts (fatwā) of a woman should be treated as probative in modern times despite the subject, the woman, being the same. Or for example, it is proposed that modern societies and states respect patent rights of inventors and creators, and although we find no evidence for the legality of this right in our transmitted evidences, we should introduce it as a new religious ruling. Both of these scenarios rely on rational notions accepted by thecontemporary ʿuqalā’. Therefore, it is paramount we explore the jurisdiction and scope of the authority of reason, if any, in the realm of jurisprudence.

We mentioned that a faction of the Imāmī school of thought, namely the Akhbārīs, do not regard reason as authoritative. We produced and answered their first argument in the previous session which argued for a restriction at the stage of issuance and applicability (fiʿlīyah) preventing reliance on reason. In this session, we will cover the second argument.

2 Reason is restricted in discovering religious rulings

It is claimed that reason is unable to lead us to religious rulings with certitude, even if the rational proof used is certain and decisive. This claim is raised against both theoretic and practical reason. In this session, we will analyse the claim with respect to former of the two: is theoretic reason not able to lead us to religious rulings with certainty?

In response, Shahīd al-Ṣadr, in the fourth volume of Buḥūth, states that certainty (yaqīn) produced via rational argument which some Akhbārīs have rejected can be of two types: logical certainty and uṣūlī certainty.

The certainty discussed in the science of Logic includes only those that correspond to the real world (reality). Logical certainties correspond with reality because they are backed by deductive syllogisms (būrhān). Logicians categorise syllogisms based on the nature of their premises: certain or non-certain. A premise is certain if it is self-evident (badīhī) or theoretic (naẓarī) and all theoretic premises ultimately returns to a self-evident proposition. They count six types of self-evident propositions or axioms: fiṭrīyāt (instinctive), mutawātirāt (successive), tajrubīyāt (experimental), ḥissīyāt (empirical), ḥadsīyāt (intuitive)and mushāhadāt (observables). Any syllogism that is based on one of these six propositions, its conclusion is reached with certainty and we are sure of its correspondence with reality.

If Akhbārīs argue that logical certainties are not authoritative in the deduction of religious laws, Shahīd al-Ṣadr answers: the certainty that Uṣulīs consider as authoritative is not the logical. We don’t necessarily accept the Akhbārī claim that logical certainties have no value, but as far it relates to us, it does not harm our position for we are concerned with certainty in a different vein.

Certainty in the uṣūlī meaning is defined as the lack of doubt. Regardless of whether our certainty is produced via syllogisms or not and whether it corresponds to reality or not, as long as it is not accompanied with doubt, Uṣūlīs regard it as authoritative.

2.1 Problems with Shahīd’s answer

Firstly, not all Uṣūlī scholars agree that certainty defined as the lack of doubt is authoritative. What Shahīd mentioned is the popular opinion amongst Uṣūlīs, however, Sayyid al-Sīstānī differs on this matter.

The popular position asserts that what is not accompanied with doubt and the possibility of falsity is authoritative. The alternative position opines that all certainty reached via ʿuqalāyī grounds has authority. If the ʿuqalāyī process for reaching certainty in our arguments is observed, then any potential doubt in the conclusion and the possibility of it being otherwise, does not hinder our treatment of the certainty as authoritative.

For example, if a jurist is certain that the fatwā of women and minors are not binding, according to the popular position, as long his sense of certainty is not tainted with doubts, then it is ḥujjah and correct to rely on to issue the relevant ruling. The alternative position, however, requires us to examine the grounds from which this certainty was born and in other words, will the ʿuqalā’ endorse these grounds or not?

If the jurist reaches certainty that the fatwā of women is not binding as a result of his personal experience with them, assuming he has dealt with a large number of women in his lifetime and has observed first hand, for argument’s sake, they make many mistakes in their decisions or rely heavily on emotion, according to the second position this certainty has no value and is not authoritative. If the jurist issues a fatwā based on such a certainty, he is not excused in the eyes of the lawgiver. What could help his case in the viewpoint of the second position is a methodological survey of all societies and ʿuqalā’ on this issue. Upon his survey, had he, the jurist, witnessed, for argument’s sake, that almost all ʿuqalāyī societies agree that women, generally speaking, are poor decision makers, then his final ruling could be given weight. Or if he had examined all the sources of legislation and inferred the lawgiver’s tendency (midhāq) in treating the (jurisprudential) opinions of women as not binding.

In short, we do not find consensus amongst Uṣūlīs in their understanding of what constitutes “certainty” and therefore, Shahīd’s attempt to categorically separate the uṣūlī understanding of certainty from a logical is incomplete.

As a second problem to Shahīd’s answer, we must mention that there is a difference between certainty in a religious ruling and certainty in the propositions and premises that are used to reach the ruling. The former is uṣūlī and the latter is logical but both are needed and used in the process of istinbāt, contrary to what Shahīd claims.

To portray our point, consider when a conflict occurs between the command to prostrate and the prohibition from using and usurping unowned property, is it possible that the lawgiver desires the execution of both of these contradictory actions from his agents? That is, can we be obligated to prostrate on this land while also be prohibited from usurping the land because it is not our property?

Reason is able to intervene in cases like this. It dictates that the unison of a command and a prohibition on the same action is impossible. A positive command (such as prostrate) essentially emanates from nested interests and the lawgiver’s desire for it, whereas a negative command or prohibition (such as do not usurp) emanates from nested harms and the lawgiver’s distaste for it. To posit the unison of a positive and negative command on the same action is equivalent to the action being both in the benefit and detriment of the agent and being both liked and disliked by the lawgiver. This is obviously not plausible and therefore only one of the two is applicable to the agent. Given the prohibition from usurping is applicable across all cases and comprehensive (shumūlī) but the command to prostrate can be performed elsewhere and is substitutive (badalī), the prohibition is given precedence over the command. Consequently, the prostration becomes prohibited and disliked by the lawgiver. Acts of worship are not valid if they are disliked by the lawgiver, therefore, the prostration will be invalid.

In this brief analysis, we relied on multiple rational principles and certainties: certainty that opposites cannot unite, certainty that a command and prohibition cannot be both applicable, certainty that only one is applicable and certainty that a disliked action cannot be considered worship. These are all logical certainties used in the process of istinbāṭ. The only uṣūlī certainty we achieved was in the final ruling after the rational analysis: the prohibition of prostration. Therefore, it is not correct to assume that Uṣūlīs do not rely on logical certainties as Shahīd’s claimed.

Having clarified this, what evidence do Akhbārīs present to substantiate their claim that certainty reached via reason is not able to aid and discover religious rulings? Shahīd al-Ṣadr presents two of their arguments:

2.2 Argument

The probability of error in rational judgements is applicable to any other one of them:

When we survey all the rational judgements humanity has confidently at one stage or another claimed to be true, we find (for example) 20% of them to be mistaken. Given the inevitability of this truth, each new rational judgement we reach is vulnerable to the same probability of being mistaken. Therefore, according to this mathematical argument, we cannot rely on our rational certainties in the process of deducing laws simply because there is a 20% chance of it being mistaken. In other words, reason does not have the kashifīyah and ability to discover religious rulings.

2.2.1 Reply 1

Akhbārīs have no disagreement about the authority of sense experience and what they perceive. They consider them as certainty-giving and legitimate to rely on. But the same objection can be raised against sensual perceptions as well. If we surveyed all our physical observations, be it the ones we personally experience or those scientific observations produced over the course of human history, we find 20% or 40% of these observations as mistaken. Count the number of incomplete or wrong scientific facts believed to be true over the history of human endeavour and one will find a large number of currently refuted propositions which earlier generations believed to be certain. Thus, if the probability of err exists in our sensual perceptions and physical observations, how is it possible to rely on them?

2.2.2 Reply 2

Rational arguments can be constructed via two different viewpoints: internally and externally. When a thinking agent external to us presents a rational argument that leads to a religious ruling, it is possible to refrain from relying on their reasoning due to the aforementioned possibility of error. In this sense, the Akhbārī argument is plausible.

However, when I construct an argument internally and with myself, in the process relying on self-evident premises or similarly convincing premises, I will have certainty about the final religious ruling reached. The probability of error in such a case is ruled out by my own reason.

As we mentioned in our earlier example, I am able to perceive with certainty the impossibility of the unison of contradictories and the impossibility of the unison of command and prohibition on the same action. I used self-evident premises or premises of similar strength in conviction and ultimately reached the conclusion that prostration on usurped land is prohibited. I am aware that there is a 20% chance of err, but when the argument is constructed on the grounds of self-evident propositions, that chance is discarded internally.

It might be questioned how could certainty be achieved if the chance of err still persists. Our internal and personal conviction does not solve the problem; propositions which we now classify as belonging to the 20% were also felt with a similar degree of conviction by their claimants. What guarantee do we have to ensure we are not drowned in compound ignorance, foolishly respecting our false assumptions as the truth?

To answer this, we say there are two factors upon which I rely on in my internal argument that helps me put aside the possibility of err:

Firstly, as previously hinted, my reliance on self-evident propositions that do not require further argument for their truth, ensures my reasoning is error free. Axioms like the impossibility of the unison of contradictories are of the category of statements such as 2+2 = 4. There are so instinctively and primarily evident in our minds that we cannot reject them.

Secondly, exhausting the possibilities of error, especially in areas its manifestation is more likely, naturally leads to certainty as it would with our sense-based observations. For example, if I wished to discover whether a particular object, say a red ball, is found in a particular environment, say this room, I would use all the tools that could potentially help me in my pursuit. I would use cameras, binoculars and any other equipment that will allow me to find the ball in the room. After having exhausted all the possibilities where the ball could be found, I will reach certainty that the object is not in this room.

Similarly, we can perform rational inspections on our arguments to ensure it is error-proof. For example, we would check if our premises ultimately return to self-evident propositions; check there are no hidden assumptions taken or that our premises are not contingent on unknown factors which have escaped our attention. After having exhausted the possibility of error via our thorough rational inspection, we will reach certainty about the validity of our conclusions even if we know 20% of rational arguments are generally prone to error. My rational inspection allows me to remove my argument from the list of those arguments which actualise that possibility.

It is unclear why the distinction between rational arguments presented by an external agent in contrast to those executed internally helps our case. Even if the argument is presented from outside, we can reconstruct it internally and process it in the same manner argued for to probe for faults and errors. What appears from Shahīd’s words in Buhūth (vol.4, p.127) is the distinction between when we hear only the result of a rational argument as opposed to when we receive and process both the argument and the result. In the first case, given we have not yet encountered the argument in its full directly, we can immediately suppose that the conclusion could be 20% mistaken. Whereas, in the second scenario, we are not merely supposing a probability on a statement we hear free of any evidence; we receive and internalise the rational argument and in the process, remove it from the potentially mistaken instances.

2.3 Argument

The second argument Akhbārīs present is that the presence of a possibility of error is a barrier to reliance on rational arguments.

Either the possibility is a barrier to the authority of certainty or to its acutalisation.

2.3.1 Barrier to authority

Akhbārīs claim that knowledge of the probability of error does not permit the use of rational judgements in isṭinbāt. Certainty can actualise and form via rational arguments, but it has no value in the process of deducing laws.

The problem with this argument is it is self-defeating because the claim itself is based on reason: any jurist which has knowledge of the probability of error cannot rely on rational judgments in his deduction. This conclusion is not derived from the legislation but from reason itself. Therefore, if we cannot rely on rational judgements, how can we rely on your argument?

It might be objected that the Akhbārī argument prohibits the use of reason to reach a religious ruling, whereas, their argument was not used for this purpose. Their argument, even if built on rational grounds, limits the jurisdiction of reason in the realm of legislation, it does not issue a religious ruling.

In reply: the conclusion that X is not authoritative is itself a religious ruling. Similar to how we attribute “invalidity” to a prayer performed without ablution, attributing a certain piece of evidence as not evidence and “not authoritative” is also a religious ruling.

2.3.2 Barrier to actualisation

Knowledge of the probability of error prevents the actualisation and formation of certainty in the mind of the jurist. Meaning, it is creatively (takwīnan) impossible for certainty to form when knowledge of the probability exists.

Reply: Our route to certainty is affected when one of the following happens in our arguments:

1. There is a relationship between two propositions such that the falsity of one leads to the falsity of the other.
2. One proposition is considered as a prerequisite to another, such that when the prerequisite is proven false, so is the other.
3. There is an irregularity and skewed disposition within the person’s mind, such that they are sceptic towards everything. 

Examples for Category 1:

Ancient philosophers presented the Ten Intellects theory of the creation of the World, asserting that the first entity God created was the first intellect and from that emanated the second intellect, so and so forth until we reach the realm of the material available to our experience. When we examine the theoretical backbone and prerequisites of this hypothesis, we see that it relies on the idea that ‘nothing emanates from singularity except singularity’, the famous rule of singuarlity (wāhid). And given the Creator is a basic singularity not made of parts, then only singularities emanate from Him. Thus, from the Creator only the first intellect was emanated, from which the process of initiation and creation was continued.

Is this rule, which forms the backbone of this theory, correct? Sayyid al-Khū’ī opines that it is unwarranted in the case of the Creator. The rule of singularity is specific to natural causes. Fire as a natural cause cannot cause two distinct types of heat. (Each fire carries with itself certain material properties that leads to a heat energy that matches those properties. For example, yellow fire cannot create the heat that is attributed to fire which has turned blue). However, Sayyid argues, the act of creation is voluntary contrary to the relationship between fire and heat.

Our relationship with the Creator is that of a voluntary actor with respect to his actions, not the relationship of a (material) cause to its effect. This is true because God is not subjected to material laws and in particular, the law of singularity. Although He is Singular, but in Him being a voluntary Actor, multiple actions can emanate from Him.

There is more that can be said in the form of affirmation and also objection to Sayyid al-Khū’ī’s, but given Sayyid Munīr, may Allah prolong his life, only presented this as an example, we should not comment.

Therefore, once we discover the invalidity of the prerequisite to an argument, we will not be able to reach certainty in the conclusion.

Example for Category 3:

There are certain individuals with skewed mental dispositions who let their unfounded skepticism contaminate any sound thought and idea. For example, in proving the presence of the 12^th of Imam, you present to them transmitted evidence of his birth and that he has not died. This transmission is not rationally implausible nor scientifically unacceptable. Neither does reason reject the possibility of a human being living for long periods of time, nor does Medicine deny the persistence of life over lengthy periods as long as the necessary conditions for its bodily maintenance and livelihood is met. What is the problem then? Presented to them is transmitted evidences of his birth, that he has not died and on the other hand, reason and science do not object against such a possibility. They will reply to you “Your argument is correct but I still remain doubtful. I cannot accept that a human is able to live this long”. This is nothing but sickness in thinking. As Shahid al-Ṣadr describes, lack of certainty in such a person is not due to a fault in the argument nor because his objection is grounded, rather because of mental stubbornness and obstinacy.

In summary, not reaching certainty can be traced to three factors:

1. Truth dependence of propositions 
2. A conclusion derived from false prerequisites
3. Obstinacy in reasoning

When we survey all the rational propositions argued for by the Uṣūlīs, are they of the first type such that belief in them leads to belief in a false proposition? Or are they of the second type such that their theoretic prerequisites are proven to be misguided and invalid? What is evidently clear to us is that they do not belong to any of the two categories. Thus, if certainty is not reached via` their rational arguments, we can only attribute this to the third factor, a lack of courage in accepting the truth and obstinacy in thought. And this is void of any value.

In conclusion, the claim that theoretic reason is not able to discover from religious rulings is invalid and incomplete. In the coming discussion, we will analyse the authority of practical reason in the deduction of laws.

و الحمد لله رب العلمین