Capítulo I: Fundamentos Teóricos
1.4 El Ajedrez sus valores
In line with the fact that the subject matter of the contemporary discourse of Uṣūlī legal epistemology is to evaluate the epistemic validity of evidence qua evidence that can be used in the juristic derivation of Sharīʿa precepts, it is necessary to understand what is exactly meant by the concept of epistemic validity in legal epistemology. The Arabic term used to denote the concept of “epistemic validity” is “ḥujjiyya74,” and when evidence is proven to be “epistemologically valid” it is termed as “ḥujja.” Although a corresponding synonym to the term ḥujja does not exist in the English language, it is found that the concept of ḥujja is not difficult to comprehend. This is largely attributable to Muẓaffar’s detailed description of how the term ḥujja, and the concept of ḥujjiyya, is understood across inter-related Muslim disciplines.
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74 There is no exact English synonym for the term ḥujjiyya. However, it is usually translated as
“authoritativeness”, see Hallaq, A History of Islamic Legal Theories, p. 126 or “probative force”. See Gleave, Inevitable Doubt, p. 31. Henceforth, it will be translated as “epistemic validity”.
Muẓaffar firstly explains the understanding of ḥujjiyya by explicating its lexical meaning. He clarifies that Al-Ẓāhirī, a tenth century CE Arabic lexicographer, defined that anything that is potentially competent in abnegating or arguing against another thing is termed as ḥujja75. Muẓaffar elaborates on this definition by way of the following example; if two parties are involved in a dispute, then the party that possesses ḥujja – i.e. argument over another party - is always deemed to be victorious, as this party has ḥujjiyya – i.e. the ability to correctly argue. Moreover, Muẓaffar notes that the party that possesses ḥujja
can be victorious over the party that does not possess ḥujja in one of two ways; firstly, by completely silencing or disproving the other party, or secondly, by being able to convince the other party of its point of view. Muẓaffar describes – without making it clear whether it is his opinion or the opinion of Ẓāhirī – that in either instance, the possessor of ḥujja is granted with excusability and thus cannot be held accountable76. Therefore, it can be seen that there is a necessary correlation between the lexical meaning of ḥujjiyya and the notion of accountability and excusability.
Nonetheless, following his analysis of the lexical meaning of the term ḥujja
and the concept of ḥujjiyya, Muẓaffar demonstrates its usage in the Muslim
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75 Muẓaffar does not provide a direct reference to al-Ẓāhirī. However, this reference is
provided by Shaykh Ibrāhīm Ismāʿīl al-Shaharkānī in his commentary (sharḥ) of Muẓaffar’s Uṣūl al-Fiqh. It should be noted that Al-Ẓāhirī is famously recognised as one of the early writers of the Arabic dictionary, Lisān al-ʿArab. See Shaharkānī, al-Shaykh Ibrāhīm Ismāʿīl. al-Mufīd fi sharḥ uṣūl al-fiqh, 2 vols. (Beirut: Muʾassasat al-Hidāya, 2003) vol. 2, p. 14
discourse of logic (manṭiq)77. In accordance with the logicians, the term ḥujja
is another expression that is used to describe logical reasoning and argumentation. It technically refers to a set of syllogistically constructed premises - the minor premise and the major premise - which bring about knowledge of something unknown from something known, irrespective of whether such knowledge is acquired through inductive argumentation or deductive argumentation. For instance, an example of a deductive argument, which can also be termed as ḥujja, is:
Minor premise: John is a human being
Major premise: Every human being is mortal
Conclusion: Therefore, John is mortal
Furthermore, the term ḥujja is also used by logicians to describe the common denominator, or the middle limit (al-ḥad al-awsaṭ), in syllogistic reasoning78. The middle limit is something which is common to both the major and the minor premise, and thus can be described as the connecting factor between both premises in order to arrive at an argument or a conclusion. For instance, the middle limit in the aforementioned example is “human being,” as it is a common feature of both the major and the minor premise.
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77Ibid, p. 12''
Therefore, in essence, in the Muslim discourse of logic the term ḥujja is either referred to as a syllogistically constructed argument, or the middle limit which is consistent in both the major and minor premises of a syllogistically constructed argument. In both cases, ḥujja, or the concept of ḥujjiyya, is recognised as something which causes or discloses knowledge through syllogistic argumentation, irrespective of whether such knowledge is caused in cases of disputation or not. It becomes apparent from the logical definition of
ḥujja that the notion of accountability and excusability is not mentioned. It is thus arguable that the discourse of logic, which by nature is very particular in defining things, does not include the aspect of accountability and excusability as being an integral part of the definition of ḥujja. In other words, unlike the lexical definition of ḥujja, the logical definition of ḥujja does not claim that the property of accountably and excusability forms part of the definition or the nature of ḥujjiyya.
Following its lexical and logical definitions, Muẓaffar moves on to explain how the term ḥujja and the concept of ḥujjiyya, is understood in the discourse of legal epistemology. He explains:
For the Uṣūlīs, the meaning of ḥujja [as it is] in accordance with their normal usage [refers to] “Everything that is competent in establishing its referent and does not reach the level of certainty (qaṭʿ).” Inasmuch as, the referent is not caused [or established] with certainty, because if
it is [established] with certainty, then [that] certainty is [in itself] ḥujja, but ḥujja in the literal sense79.
This statement establishes that there are two key characteristics of the Uṣūlī definition of ḥujja. On one hand, the term ḥujja is described as something that establishes its referent. On the other hand, it is described as something that does not reach the level of qaṭʿ(epistemic certainty), as qaṭʿ in itself is deemed as ḥujja.
Therefore, it becomes apparent that in legal epistemology, there are two distinct usages of the term ḥujja. Firstly, the term ḥujja is referred to in its real (ḥaqīqī) sense, whereby it is used to describe something that gives rise to qaṭʿ. Although the epistemic validity of qaṭʿ is thoroughly analyzed in Chapter Three, it is vital to note at this juncture that in Shiite legal epistemology, qaṭʿ is undisputedly recognised to be ḥujja (epistemologically valid) in its literal sense. This is because by its very nature, qaṭʿ essentially establishes or discloses another thing, and thus it is naturally incumbent upon the person who attains qaṭʿ to follow it and act in accordance with its disclosure. Thus, for example, if in the juristic process of deriving Sharīʿa precepts, a mujtahid is to come across al-dalīl al-qaṭʿī (certainty-bearing evidence) then the disclosure, or the evidentiary nature, of such evidence is essentially ḥujja or epistemologically valid in the literal sense, because the Uṣūlīs uphold that a
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certainty-bearing evidence by its very essence discloses the Sharīʿa precept and makes it naturally incumbent upon the mujtahid to follow its disclosure.
Secondly, the term ḥujja is more widely referred to in its metaphorical (majāzī) sense or the technical Uṣūlī sense, whereby it is ascribed to something that does not give rise to qaṭʿ, but instead gives rise to ẓann (conjecture) that is substantiated. In other words, it refers to evidence that is not essentially ḥujja
or epistemologically valid in the literal sense, but nevertheless discloses conjectural knowledge of Sharīʿa precepts. In accordance with the post-Anṣārī Uṣūlī thought, the epistemic validity of such evidence is postulated, or prescribed, by the Divine Lawgiver, who Himself deems such evidence as “ḥujja”80. Thus, for example if in the juristic process of deriving Sharīʿa precepts, a mujtahid is to come across prescribed evidence, then he is required to abide by its indication or disclosure, because it has been postulated, or more accurately, substantiated, by the Divine Lawgiver Himself, and thus discloses knowledge of Sharīʿa precepts.
Therefore, the contemporary discourse of Shiite legal epistemology has two usages of the term ḥujja. On one hand, the concept of ḥujjiyya refers to the epistemological validity of certainty-bearing evidence, whilst on the other hand, it refers to the epistemological validity of substantiated evidence.
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80 The evidence that is substantiated by the Divine Lawgiver Himself is further explained in
The definition of ḥujjiyya is of pivotal importance, for by determining what is meant by epistemic validity naturally enables the evaluation of what evidence is epistemologically valid in the derivation of Sharīʿa precepts. As shown, the Shiite tradition has historically understood the concept of ḥujjiyya in different ways. During the formative period, the concept of ḥujjiyya was restricted only to evidence that gave certainty or absolute knowledge of Sharīʿa precepts. This understanding was then modified within the Shiite jurisprudential discourse after ʿAllāma’s introduction of ẓann, wherein it broadened the definition of the concept of ḥujjiyya to not only include certainty-bearing (qaṭʿī) evidence, but also conjectural (ẓannī) evidence that disclosed Sharīʿa precepts. However, this definition was once again further transformed following the works of the Akhbārīs, who maintained that knowledge of Sharīʿa precepts could predominantly only be derived from the reports of the maʿṣūm, as in accordance with their understanding, these reports were the only epistemologically valid (ḥujja) evidence that gave knowledge of Sharīʿa precepts.
Due to the constant change of the exact meaning of ḥujjiyya, Muẓaffar deemed it necessary to discuss both its lexical and logical definitions. The two definitions emphasise the validity of Muẓaffar’s epistemological underpinnings, as they establish that something that is recognised as ḥujja does not necessarily have to give certain knowledge of Sharīʿa precepts, but rather may establish a correct method of argumentation. As a result, this strengthens the contemporary Uṣūlī position in justifying that Sharīʿa precepts cannot only be derived from qaṭʿī evidence, but can also be derived from ẓannī evidence
that has been substantiated by the Divine Lawgiver, so long as this evidence provides the correct method of argumentation. This once again highlights that the contemporary Uṣūlī discourse of legal epistemology is not only preoccupied with how it is possible to acquire knowledge of Sharīʿa precepts from the best possible means, but also focuses on how a mujtahid is granted with excusability and not held accountable and subjected to chastisement for deriving Sharīʿa precepts that are in fact contrary to the objective reality. Nonetheless, Muẓaffar notes that in the Shiite discourse of legal theory, the technical meaning of ḥujja is also referred to as “imāra,” “ṭarīq,” and “dalīl.” In the technical sense, all these terms refer to any substantiated evidence that produces conjectural knowledge of Sharīʿa precepts81. As established, in the post-Anṣārī Uṣūlī discourse, substantiated evidence is deemed as epistemologically valid because it is recognised as being prescribed or substantiated by the Divine Lawgiver Himself. Thus, the conjecture it produces is especial conjecture (ẓann al-khāṣ), insofar as although there is a possibility of being misled by its evidentiary nature, a mujtahid is always granted with legal immunity. Therefore, if a mujtahid is to derive Sharīʿa precepts based on the indication of substantiated evidence, then he is not held accountable if its indication leads him to err and overlook the precept that is in the objective reality. Conversely, if a mujtahid does not abide by the indication of the substantiated evidence, and as a result errs in his derivation of a Sharīʿa precept and overlooks that which is in the objective reality, then he can be held
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accountable and also subjected to chastisement. Therefore, in accordance with the former, the mujtahid possesses the “ḥujja” that prevents him from being punished, whereas in accordance with the latter, God possesses the “ḥujja” to justify chastisement. In essence, although the likes of Muẓaffar who belong to the contemporary Uṣūlī School, significantly broaden the subject matter of legal epistemology to include a wider range of evidence that can potentially disclose Sharīʿa precepts, in practice they restrict the actual derivation of Sharīʿa precepts to evidence that is deemed as ḥujja, inasmuch as it not only discloses knowledge of Sharīʿa precepts, but also grant mujtahids with excusability.