Lessons in Islamic Jurisprudence

Muhammad Baqir As-Sadr, Roy P. Mottahedeh

• Publisher: Oneworld Publications
• Year: 2014
• eBook ISBN: 9781780746869

This is an English translation of one of the most famous texts by the influential and charismatic Islamic activist, as-Sadr, who was executed by Saddam Hussein in Iraq in 1980. As-Sadr's books have made him one of the most celebrated Arab Muslim intellectuals of modern times. This text is used throughout the Sunni and Shi'a world by students of Islamic jurisprudence because of its succinctness and intellectual vigour. Mottahedeh's translation is accompanied by a detailed introduction which explains and places in context as-Sadr's views. Representing an attempt to relate a large body of Islamic law to scripture, this translation should be of great interest to students of scripture, hermeneutics and law.

1

Characterization of Jurisprudence

A Preliminary Word

As a human being who has believed in God, Islam and the Divine law and has recognized a responsibility, by virtue of being a servant to God Most High, to follow His rulings, one becomes obligated to conform one’s behavior in the various fields of life to the Islamic divine law and obligated to adopt a practical position which adherence to the divine law imposes. For this reason it is a human being’s duty to determine this practical position and to know how to behave in every eventuality.

Had the rulings of the divine law for all events been totally and self-evidently clear to all, then to define the desirable practical position vis-à-vis the divine law would be an easy matter for everyone, and would not require learned investigation and extensive study. But numerous factors, such as our distance in time from the age of legislation, have lead to the lack of clarity of a large number of rulings of the divine law and to their being surrounded by obscurity. Thus it was necessary that a discipline be established that would undertake to remove obscurity concerning the practical position before the divine law in every eventuality by establishing an argument for determining the [practical] position.

Thus the discipline of legal understanding was founded to undertake this task. It includes determining by inference the practical position vis-à-vis the divine law. The jurist [i.e., the specialist in the discipline of legal understanding] undertakes to establish an argument which attempts to specify the practical position in every one of the events of life. This is what we have designated “the procedure of derivation of a divine-law ruling.” For this reason one can say that the discipline of legal understanding is the discipline of the derivation of rulings of the divine law, or, in other words, the discipline of the procedure of such derivation.

To determine the practical position before the divine law through an argument is accomplished in the discipline of legal understanding in two ways. The first way is to determine the practical position by identifying an appropriate divine-law ruling. The second way, which applies when one is quite sure that one can only doubtfully identify the appropriate ruling, is to identify the appropriate duty in practice. The arguments which are used in the first case we call merely “arguments” or substantiating arguments, since the divine-law ruling is substantiated by them. The arguments which are used in the second case are called “procedural arguments” or procedural principles. In both cases the jurist practices the derivation of a divine-law ruling, that is, he determines the practical position in the case at hand with an argument.

The procedures of derivation which the discipline of legal understanding includes, in spite of their number and variety, share common unifying elements and common rules which pertain to all of them. It is these shared elements in the procedure of derivation that required the establishment of a new discipline which specializes in studying them and defining them and adapting them to the existing discipline of legal understanding; and so the discipline of jurisprudence came into existence.

Characterization of Jurisprudence

On this basis we consider it correct to define the discipline of jurisprudence as “knowledge of the shared elements in the procedure of derivation of the divine law.” In order that we comprehend this definition it is necessary for us to characterize the shared elements in the procedure of derivation. Let us mention for this purpose elementary examples of this procedure in brief in order that by study and comparison we may arrive at a definite idea of what the common elements in the procedure of derivation are.

Suppose that the jurist (the specialist in the divine law) faces these questions:

1. When fasting, is it forbidden to immerse oneself in water?

2. Is it obligatory for someone who inherits property from his father to pay the tax of one-fifth on it?

3. Is prayer nullified by laughing out loud in the course of it?

(1) When the jurist wishes to answer these questions, he will for example answer the first question in the affirmative, saying that immersion in water is forbidden to one who fasts. He derives this answer as follows: the account of Ya‘qūb b. Shu‘ayb transmitted from Imam Ja‘far aṣ-Ṣadiq has indicated the prohibitedness for the fasting person of immersion in water, since from that account we learn that [Ja‘far] said: “Neither the one in a state of ritual consecration required of the pilgrim nor the person fasting should immerse himself in water.” This sentence, given its particular construction, indicates prohibitedness according to common usage. The transmitter of the account is a reliable transmitter, and the Lawgiver has commanded us not to suspect a reliable transmitter of error or lying. Although he may at times make a mistake or relate idiosyncratic accounts, yet we are to consider him as a source of evidence. The conclusion is that immersion in water is prohibited.

(2) The jurist answers the second question in the negative because there has come down to us an account from ‘Alī b. Mahziyār about the issue of exactly how to determine on what property the one-fifth tax is payable. It emerges from that account that paying the fifth is firmly established only as regards an unexpected inheritance, sc. in a case that involves neither the son inheriting after the death of the father, nor the father after the death of the son. The common-usage understanding of such a formulation is that the Lawgiver did not impose the one-fifth tax upon a father–son transfer. The transmitter of the account is a reliable source and what comes from a reliable source is evidence. The conclusion is that the son does not owe the fifth on what his father leaves him.

(3) The jurist answers the third question in the affirmative with the [substantiating] argument of an account from Zurāra citing Imam Ja‘far aṣ-Ṣadiq as saying “Laughing out loud does not destroy the validity of ablution, but it does destroy the validity of prayer.” Common usage understands from “destroying the validity” that prayer is nullified by laughter out loud. Zurāra is a reliable transmitter and the account of a reliable transmitter is evidence. Accordingly, prayer accompanied by laughter out loud is nullified.

In considering these three legal-understanding cases we find that the rulings which the jurist has derived are about entirely unrelated topics of legal understanding. The arguments upon which the jurist relies are varied. We observe that the first ruling relied on the account of Ya‘qūb b. Shu‘ayb, while the second ruling relied upon the account of ‘Alī b. Mahziyār, and the third ruling upon the account of Zurāra. Each of the three accounts has its own exact text and its own exact linguistic construction, which require to be studied with care and the meaning thereof determined. Yet despite all this variety and difference between the three cases, there exist common elements which the jurist has introduced into his derivation in all three cases alike. Among these common elements is the recourse to common usage for understanding speech emanating from an infallible person. That is what is called probativity of the prima-facie understanding of common usage. Thus “probativity of the prima-facie understanding” is one element shared by all three of these procedures of derivation. Similarly, another shared element which exists here is “the probativity of the reliable source.”

Thus we conclude that the procedures of derivation include general elements as well as particular elements. By “particular elements” we mean those elements which change from one question to the next. The account of Ya‘qūb b. Shu‘ayb, [for instance,] is an element particular [in its significance] for the procedure of the derivation of the forbidden nature of immersion in water, because it has not entered into other procedures of derivation. Rather, in its place other particular elements such as the account of ‘Alī b. Mahziyār and the account of Zurārah have been introduced.

By “general elements” we mean the rules which are introduced into procedures of derivation of numerous rulings on various topics. Such shared elements are studied by jurisprudence, whereas the elements particular to each individual question are studied by the discipline of legal understanding.

In this way in each question it is left to the jurist carefully to investigate the particular accounts and sources that are connected with that question. He studies the value of these accounts and tries to understand the utterances in them and their common-usage prima-facie sense and the chains along which they have been transmitted. The specialist in jurisprudence, however, takes up the discussion of the probativity of the prima-facie sense, the probativity of transmitted reports, and so on. The discipline of jurisprudence does not just define the common elements, it also defines both the degrees to which they should be used and the connection between them, as – God Most High willing – we shall see in our coming discussions.

The Subject-Matter of Jurisprudence

Normally, every discipline has a basic subject-matter around which all of its discussions revolve and on which all are based, and you have as your goal to uncover the particularities, conditions and laws that are connected with that subject. Physics, for example, takes nature as its subject-matter and discussions in physics are all connected with nature and attempt to uncover its phenomena and common laws. The subject-matter of grammar is the word because grammar discusses the conditions of its case inflections, the indeclinability of the word, and its declinability with different suffixes. Then what is the subject-matter of jurisprudence around which its discussions revolve?

When we consider the definition of the discipline of jurisprudence which we have put forward, we can grasp that jurisprudence in reality studies the commonly shared arguments [used] in the discipline of legal understanding in order to establish their force as arguments. It is, therefore, correct to say that the subject-matter of the discipline of jurisprudence is the commonly shared arguments in the process of derivation.

The Discipline of Jurisprudence is the Logic of Legal Understanding

Your knowledge of the discipline of logic permits us to use it as an example for the discipline of jurisprudence, since, as you know, the science of logic in reality studies the process of thinking whatever its intellectual scope and field may be. Logic defines the general structure that must be followed in order that thinking be sound. For example, the discipline of logic teaches us how we must proceed by inference in its quality as a procedure of thought in order that the inference be correct. How do we infer that Socrates is a mortal? How do we infer that the fire of the stove placed in front of us is burning? How do we infer that the sum of the angles of a triangle equals one hundred and eighty degrees? How do we infer that a line extended without limit is impossible? The discipline of logic answers all this by establishing general methods of inference like deduction and induction. It is, therefore, a discipline concerned simply with the process of thought as such.

In this respect the discipline of jurisprudence resembles the discipline of logic except that it discusses a particular variety of thought process, that is, the legal-understanding thought process concerning the derivation of rulings. It studies the shared elements that must be introduced into the process in order that the derivation be sound. So it instructs us about how we derive the ruling of the forbidden nature of immersion for someone who fasts, how we derive the impossibility of water above a certain quantity becoming impure, and how we derive the ruling that the liturgical prayer on the Feast of Sacrifice is either obligatory or encouraged. It does so by laying down the shared methods and by defining the common elements for the process of derivation.

On this basis it is correct to call the discipline of jurisprudence “the logic of the discipline of legal understanding,” because jurisprudence stands to the discipline of legal understanding just as logic stands to human thought in general.

The Importance of the Discipline of Jurisprudence in the Practice of Derivation

After this we have no need to emphasize the importance of the science of jurisprudence and the significance of its role in the sphere of derivation because, inasmuch as jurisprudence provides the shared elements for the process of derivation and establishes their general structure, it is the life vein [of derivation]. Without the science of jurisprudence a person would face a scattered heap of texts and arguments without being able to use them and benefit from them in the effort to derive a ruling, like a man who stands before tools of carpentry and is given a saw and an ax and similar tools without possessing general ideas of the procedure of carpentry and the method of using these tools. Just as shared elements are necessary for the process of derivation, similarly there are particular elements which differ from one question to the next such as the individual scriptural verses and the scattered accounts relevant to the question, for they constitute the other part necessary in this process. Therefore, mere knowledge of the shared elements that are described by the science of jurisprudence is not enough. Anyone who tries to perform derivation on the basis of jurisprudential knowledge alone is like one who possesses general theoretical information about the process of carpentry but has no ax or saw or similar carpentry tool. Just as such a person would, for example, be incapable of making a wooden bed, similarly the expert in jurisprudence would be incapable of derivation if he/she did not carefully scrutinize the particular elements that vary from one case to the next. Thus the shared and particular elements are the two poles incorporated in the process of derivation, and both alike are indispensable for the process.

Jurisprudence is to Legal Understanding as Theory is to Application

We fear we may have inspired a mistaken conception in you when we explained that in the discipline of jurisprudence one who derives [rulings] studies shared elements and defines them, whereas in discussions of the discipline of legal understanding such a person avails himself of particular elements in order to complete the process of derivation. Some may suppose that when in jurisprudence we have studied the shared elements in the process of derivation and have, for example, recognized the probativity of the account related and the probativity of the prima-facie meaning and additional jurisprudential elements, no further intellectual effort is incumbent upon us, since, seeing that we have mastered these elements, we need the mere extraction of relevant accounts and prooftexts from their places in the sources in order for them to be added to the shared elements and for the divine-law ruling to be derived from them, and that this is an easy task by its nature which does not involve any intellectual effort.

Yet this conception is erroneous to a great degree because the jurisconsult, when s/he employs the shared elements for the process of derivation and defines them for the science of jurisprudence, is not content after that to gather blindly the elements particular to the case from the books of traditions and accounts. Rather, his/her obligation in the discipline of legal understanding remains the application of those shared elements and general theories to the particular elements, and the application is an intellectual task which, by its nature, requires study and close examination. The intellectual effort expended as a specialist in jurisprudence does not free one from expending a further effort in the application [of jurisprudential principles]. Let us suppose, for example, that in the discipline of jurisprudence the specialist in jurisprudence is convinced of the probativity of the prima-facie meaning as commonly understood. Is it, then, sufficient for him/her to point to the account of ‘Alī b. Mahziyār which defines the items subject to the one-fifth tax, for ex...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Preface
• Introduction
• 1 Characterization of Jurisprudence
• 2 Substantiating Arguments
• 3 Procedural Principles
• 4 The Conflict of Arguments
• Analytical Summary by the Translator
• Glossary
• Arabic Terms Mentioned in the Glossary
• Index