Capítulo I: Fundamentos Teóricos
1.3 Algunas consideraciones acerca de los jóvenes
A common trend found within the traditional texts of different disciplines studied at Shiite religious seminaries is that they all discuss the subject matter (mawḍūʿ) of a discipline and distinguish it from other disciplines through the distinction of its subject matter63. Accordingly, the subject matter of every discipline is an expression of what exactly is studied within it, and indeed when there is a subject there necessarily follows a predicate (maḥmūl), which in turn somewhat defines the subject. The predicate in the discipline of Shiite legal epistemology is clearly the evaluation of what is deemed as epistemologically valid (ḥujja). Thus, if the predicate is centred on the evaluation “what is deemed as epistemologically valid”, then the predicated term, or the subject matter, of such an evaluation is necessarily the “evidence,” or “dalīl,” which has the essential properties of being worthy of such an evaluation64. In other words, the subject matter of Shiite legal epistemology is
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63 For Muẓaffar’s further discussion on the meaning and the function of the subject matter
(mawḍūʿ) and the role it plays in a particular discipline in his discourse of logic, see Muẓaffar, al-Shaykh Muḥammad Riḍā, al-Manṭiq (Beirut: Dār al-Taʿarif al-Maṭbūʿāt, 2006) pp. 347-355
64 An example to clarify this would be that we commonly find that the Uṣūlīs conclude “the
Qurʾān is a source of authority in the juristic process of deriving law.” In this case, the “Qurʾān” is the subject matter that is the evidence, whereas the sentence “authority in the process of deriving law” is the predicate. See Muẓaffar, Uṣūl al-fiqh vol. 2, p. 9
evidence, whereas the predicate is the epistemic evaluation of their evidentiary validity (dalāla).
However, one of the most debated issues in Shiite legal theory surrounds the identification of the exact subject matter of legal epistemology, as there appears to be confusion within the Uṣūlī jurisprudential literature regarding what evidence has the essential properties of being worthy of epistemic evaluation. It can be argued that the intensity of this debate was infused by Astarābādī, when the Akhbārī School heavily critiqued the four-fold categorisation of evidence that was initially proposed by ʿAllāma. As discussed above, the Akhbārīs upheld that the subject matter of legal epistemology was restricted to the evaluation of evidence that revealed absolute knowledge and certainty.
Nonetheless, following the post-Bihbihānī/Anṣārī resurgence of the Uṣūlī camp, valid evidence that produced conjecture of Sharīʿa precepts was once again accepted within the bounds of Shiite jurisprudence. However, despite this it is found that Muẓaffar extensively discusses the subject matter of Shiite legal epistemology, and this is undoubtedly because many of his Uṣūlī predecessors continued to dispute what evidence was worthy of being evaluated in the discourse of legal epistemology. Muẓaffar points out that numerous Uṣūlīs have insisted on restricting the subject matter of legal epistemology to the evaluation of al-uṣūl al-arbaʿa, i.e. the four-fold
categorisation of evidence, which includes the Qurʾān, sunna, ijmāʿ and ʿaql. However, Muẓaffar defines the subject matter as:
Everything that fits, or is potentially competent, in establishing a legal precept is deemed as an evidence, and is valid in [deriving] it [i.e. the Sharīʿa precept]. Indeed, if in this [third] part we are able to establish with, certainty (dalīl al-qaṭʿī), that an evidence, is for instance, valid then we [are required to] take from it and refer to it to establish the precepts of Sharīʿa65.
When compared to the orthodox Uṣūlī position, it can clearly be seen from Muẓaffar’s statement that his approach in legal epistemology is very much progressive, as he upholds that the subject matter of Shiite legal epistemology encapsulates a wide range of evidence. Thus, in accordance with Muẓaffar, every source or hermeneutical method that can potentially disclose a Sharīʿa precept is worthy of being evaluated in Shiite legal epistemology66. Muẓaffar
does however clarify that such evidence can only actually be used in the juristic process of derivation when its epistemological validity is established with qaṭʿ(certainty). If the epistemic validity of an evidence is not established with certainty, then it cannot be used by a mujtahid.
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65Ibid.
66 It should be noted that Muẓaffar also maintains the same stance in his overall introduction to
legal theory, where he categorically points out that there is no specific subject matter for the discipline of legal theory. Rather, he claims that its subject matter is diverse, as it includes the examination of everything that enables a mujtahid to extrapolate Sharīʿa precepts. See Muẓaffar, Uṣūl al-Fiqh vol. 1, pp. 6-7
Thus according to Muẓaffar, not only does the commonly accepted four-fold categorisation of evidence form part of the subject matter of legal epistemology, but more contentious evidence such as qiyās (analogy) and raʾy
(personal opinion) are also included. Muẓaffar elaborates on his understanding by providing a philosophical analysis, whereby using philosophical jargons he argues that the subject matter of Shiite legal epistemology is the evaluation of “evidence per se” (dalīl bi-mā hiya hiya)67, as opposed to “evidence as evidence” or evidence that is pre-assumed as being epistemologically valid (dalīl bi-mā huwa dalīl).
Muẓaffar categorically attributes the latter position to Abū Qāsim al-Qummī (d. 1232/1817), who is held as being the first Shiite mujtahid to analytically categorise the subject matter of legal epistemology as dalīl bi-mā huwa dalīl 68. In his Qawānīn al-uṣūl, Qummī suggests that the subject matter of legal epistemology is confined to the examination of evidence that is pre-assumed to be epistemologically valid, and accordingly he claims that the only evidence worthy of being evaluated is the four-fold categorisation of evidence, i.e. the Qurʾān, sunna, ijmāʿ and ʿaql69.
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67 Another translation for “dalīl bi-mā hiya hiya” is “evidence qua evidence.” Muẓaffar also
notes that another Arabic term used to denote dalīl bi-mā hiya hiya is “dhāt al-dalīl”, which can be literally translated as “the essence of evidence.” Muẓaffar, Uṣūl al-fiqh vol. 2, p. 9
68Ibid, p. 10
69 See al-Qummī, Mīrzā Abī Qāsim, al-Qawānīn al-ḥukama fi-l uṣūl 2 vols. (Beirut Dār al-
Qummī’s position is criticised by Muḥammad Ḥusayn Iṣfahānī al-Ḥāirī (d.1261/1845) in his Fuṣūl fil-uṣūl, where he correctly assesses that by claiming that the subject matter of legal epistemology is dalīl bi-mā huwa dalīl, the likes of al-Qummī treat the epistemic validity of evidence as a basic presumption (mabādī al-taṣawwuriyya)70. In logic, a basic presumption is described as a proposition that is pre-supposed, or is taken for granted, in one discipline because it is an issue (masāʾil) that is analysed in another discipline. For instance, a simpler example of a proposition that is presupposed in the discipline of Shiite legal theory is the legitimacy and authority of the maʿṣūm
as the appointed representatives of the Divine Lawgiver. This proposition is not a jurisprudential issue, rather it is a theological one, and thus is discussed and extensively analysed in the discipline of Shiite theology. As such, although this proposition also has relevance to the Shiite jurisprudential discourse, it is only discussed here in a supplementary manner, and many of the significant discussions pertaining to it are taken as basic presumptions.
Therefore, with the aid of analytical jargoning, Ḥāirī expounds that Qummī, alongside other Uṣūlī mujtahids who similarly restrict the subject matter of Shiite legal theory to the evaluation of dalīl bi-mā huwa dalīl, are in fact pre- assuming and accepting the epistemic validity of set evidence prior to evaluating it within the discourse of legal epistemology. In essence, it can be affirmed that for the likes of Qummī, a complete discussion on the epistemic
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validly of evidence is an area that is outside the scope of legal epistemology or legal theory.
As an alternative, al-Ḥāirī proposes that the subject matter of legal epistemology is the evaluation of dalīl bi-mā huwa dalīl. He therefore concludes that it is inaccurate to pre-assume the epistemic validity of evidence prior to evaluating the potential evidence within legal epistemology, as the sole purpose of this discourse is to provide the correct forum for evaluating evidence per se71. However, it is important to note that Muẓaffar criticises Hāirī for failing to evaluate the epistemic validity of a broader range of sources, as he too – similar to those he has critiqued - restricts the epistemic evaluation to the commonly accepted four-fold categorisation of evidence72.
Nevertheless, it can be asserted that Ḥāirī was one of the first Shiite mujtahids
who argued, using analytical philosophical jargoning, that the subject matter of the discourse of legal epistemology is dalīl bi-mā hiya hiya. Undoubtedly, his analysis impressed many of the post-Anṣārī Uṣūlī mujtahids, including Muẓaffar. Indeed, it is found that following his extensive introduction to legal epistemology, Muẓaffar moves on to individually evaluate the epistemic validity of not only the commonly accepted four-fold categorisation of evidence, but also qiyās, which is indeed a key evidence whose epistemic
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71Ibid, p.11 72Ibid.
validity has historically been severely opposed in the Shiite jurisprudential tradition.
In essence, it becomes apparent that the subject matter of legal epistemology has evolved with time within the historical discourse of Shiite legal theory. A great number of contemporary Uṣūlīs are of the opinion that the subject matter of legal epistemology is the study of evidence per se or evidence qua evidence73. As a result, it can be affirmed that they uphold that it is, at the very least, possible to incorporate the evaluation of a wider range of evidence within the discourse of Shiite legal epistemology. Therefore, apart from the accepted traditional four-fold categorisation of evidence, and the traditional evidence such as qiyās, istiḥsān (juristic preference), maṣlaḥa (public interest) etc. that have been rejected in the Shiite jurisprudential discourse, contemporary Uṣūlī epistemology can theoretically assent to the epistemic evaluation of modern evidence, such as sociological findings, political findings, economic findings etc. Indeed, it must be reemphasised that by accepting the epistemic evaluation of a wider range of evidence as the subject matter of legal epistemology, this does not automatically imply that they can be used in the juristic derivation of Sharīʿa precepts, as this is only permissible once their epistemic validity has been established. Accordingly, in light of the fact that contemporary Uṣūlī epistemology theoretically permits the epistemic evaluation of a wider range of evidence as its core subject matter, the remainder of this research will focus on
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73 Faḍlī notes that apart from Muẓaffar, other contemporary post-Anṣārī Uṣūlīs too agree that
the subject matter of legal epistemology or legal theory is evidence qua evidence. See Faḍlī, Durūs fi uṣūl al-fiqh al-Imāmiyya vol. 1, pp. 111-112 and pp. 141-147!
critically analysing the epistemological underpinnings maintained in contemporary Uṣūlī legal theory. In doing so, this research will explore whether contemporary Uṣūlī legal theory is able to legitimise the epistemic validity and the utility of a wider range of evidence in the juristic process of deriving Sharīʿa precepts.