MODERN ŠĪʿĪ DISCUSSIONS OF "ḪABAR AL-WĀḤID": ṢĀDR, ḪUMAYNĪ AND ḪŪʾĪ

Author(s): ROBERT GLEAVE

Reviewed work(s):
Source: Oriente Moderno, Nuova serie, Anno 21 (82), Nr. 1, Hadith in Modern Islam (2002), pp.
179-194
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 ROBERT GLEAVE
(UNIVERSITY OF BRISTOL)

MODERN Si'I DISCUSSIONS OF ijABARAL-WAlf/D:

~R. ljUMAYNI AND ljlPI

Introduction

contemporary Sunni debates over ~adi!, in the main, discuss issues of histori-
cal accuracy: is the system of isnad verification an intellectually defensible
mechanism in the light of" modern" conceptions of truth? 1
Issues of historical accuracy do impinge on contemporary Si'i debates, but
much more important, given the continued hegemony of jurisprudence in Si'i
seminaries, are issues linked to the employment of ~adi! material in juristic ar-
gumentation. Here the discussion is not primarily concerned with whether or
not a report (babar, pl. abbtir) is historically accurate, but whether or not it may
be legitimately used as an indicator (datil) of the divine law (Sari' ah). The issue
is not historical accuracy directly, but the "probative force" (~uiJiyyah) of a re-
port;2 that is, its power as evidence in the establishment of a legal ruling (~ukm
sar<i). Of course, a report which is proven (beyond doubt) to be historically in-
accurate immediately loses its probative force, and cannot be used as legal evi-
dence. However, the ~adi! sciences do not appear to be primarily concerned
with historical accuracy. For example, Si'i jurists have for many centuries recog-
nized that an historically accurate report of an Imam's actions or words may
have no probative force whatsoever. The order in question may have been issued
under dissimulation (taqiyyah}, in which case it will be historically accurate, but
legally irrelevant.3 The primary concern is, therefore, the more technical ques-
tion of a report's qualification as a legal indicator, and once it qualifies as such,
the force it acquires in the course of a piece of legal reasoning. In this sense,
modern Si'i discussions around ~adi! demonstrate much more continuity with

I - On this, see G.H.A. Juynboll, The Authenticity of Tradition Littrature in Modtrn Egypt,
Leiden, 1969 and D.W. Brown, &thinking Tradition in Modtrn Islamic Thought, Cambridge,
1996.
2 - I follow here my translation of l;uggiyyah as probative force in R. Gleave, Inevitabk Doubt:
TwoS;<; Theories ofjurisprudtnu, Leiden, 2000, p. 31 n. 9. Hallaq translates it as "authorita-
tiveness", see W. Hallaq, "On the Authoritativeness of Sunni Consensus", International jour-
nal ofMit/Jk East Studies, XVIII (1986), p. 427.
3 - See Kohlberg, E., "Some Imami Views on Taqiyya", journal ofthe American Oriental Soci-
ety, XC (1975), p. 395-402 and Gleave, Inevitabk Doubt, p. 32-47.

OM, XXI n.s. (LXXXII), I, 2002

180 ROBERT GLEAVE

the pre-modern tradition than, it might be argued, the discussions of modern

Sunni writers.
I have selected one element of the contemporary (i.e. late twentieth-century)
Si'i debate for particular analysis. In this paper, I demonstrate not only that it is
probative force which is central to these discussions, but also that they represent
a continuation of classical modes of discourse. In essence, I am questioning the
utility of the pre-modern/modern division in an account of Si'i developments.
Others have used this division as a tool in their analysis of debates in the Sunni
world, and it surely represents a raison detre for this volume. However, it is less
obviously useful when applied to contemporary Twelver Si'i intellectual devel-
opments.
The topic discussed in this essay concerns the category of report known in
works of legal theory (Ufiil al-.fiqh) as !Jabar al-wti~id. The participants in the de-
bate probably represent the most widely-read Si'i academics of the late Twenti-
eth Century: Mul).ammad Baqir al-~dr, Rii~allah al-tfumayni and Abii al-Qa-
sim al-lj:ii 'i. The discussions concerning !Jabar al-wi~id are extensive, involved
and, at times, abstruse and tedious. For the sake of convenience, and by means
of an example of the kind of discussions prevalent in works of Ufiil al-.fiqh, I have
restricted my analysis to the exegesis of a single Quranic verse, thought by many
(though not all) Si'i writers to establish the probative force of !Jabar al-wti~id.
Some introductory remarks concerning both the authors and the topic are
necessary. Mu~ammad Baqir al-~adr, considered Ayatallah al-~adr by many,
taught jurisprudence in Najaf from the early Sixties until hts death, in prison, in
1980. He is particularly famous for his work on Islamic economics, lqtiftidunti, 4
but his most voluminous output was in the traditional area of Islamic jurispru-
dence. Included in his published work is his Duriis fi c ilm al-Ufii/,5 which as the
title indicates, originated as a text used in his teaching activities in the Najaf
seminaries. Its aim was to ease the process oflearning for students unused to the
rarefied language of the essential works of Ufiil in the seminary curriculum. 6
Rii~allah ljumayni, often referred to as Imam ljumayni, needs little introduc-
tion. Apart from his political activities, ljumayni wrote extensively in jurispru-
dence.? YHis major work of Ufiil a/-.fiqh, redacted from notes of his lectures by a
pupil, Ga'far ai-SubtJ.ani, is Tah~ib al-Ufii/. 8 Abii ai-Qasim al-tfii'i is, almost
without dispute, the major Si'i academic figure of the last half century. His

4- Mu~ammad Baqir al-~dr, lqtqidunti, Bayriit, 1398/1977.

5 - al-~dr, Duriis fi cilm al-Ufiil, 2 voll., Qum, 1418.
6 - Chibli Mall at Th~ &newal ofIslamic Law: Muhammad Baqa as-Sadr, Najafand th~ Shic i
lnt~rnationa/, Cambridge, 1993, p. 10 (For a good bio-bibliographical survey of ~dr's works
seep. 7-19 of this work).
7- A detailed analysis of Ijumayni's juristic works is yet to be carried out in a Western lan-
guage. For an interesting starring point, see N. Calder, "Accommodation and Revolution in
lm:imi Shi'i Jurisprudence: Khumayni and the Classical Tradition", Middk Eas~m Studies,
XVIII (1982).
8- Rii~all:ih al-Ijumayni, Tah~ib al-Ufiil, 2 voll., Qum, 1405.
 MODERN S;c i DISCUSSIONS OF i;iABAR AL-WAf:IID 181

dedication to maintaining the structures of Si'i learning in Iraq is well-known.

His contribution to the traditional sciences of Si'i learning is widely acknowl-
edged by the many Si'ites who considered themselves his muqa/lidiin until his
death in 1992. 9 His works on Ufiil al-fiqh include the lecture notes, collected by
Mu~ammad al-l;Iusayni, entitled Mi!bil; ai-Ufii/. 10
These three works, which form the basis of the following discussion, often
read like lecture notes, and the extent to which the attributed "author" con-
trolled the final text is unclear. However, such works, termed taqririt, form one
of the most popular forms of Si'i legal theory writing in the modern period. In
general, the internal organization of the works has been modified to follow the
standard structure of a work of Ufiil al-fiqh popularized in the late Nineteenth
Century. The whole of legal theory is divided into three epistemological catego-
ries: certainty (qa(), opinion (~nn) and doubt (lakk). 11 The discussions con-
cerning babar al-wi/:Jid are found in the section dealing with the probative force
of opinion (/;ujiiyyat al-~nn).
The term babar al-wi/:Jid can be translated as "the report of an individual
[transmitter]", but this is slightly misleading when referring to its juristic, tech-
nical usage. In works of Ufiil al-fiqh, the (almost unanimously) held position is
that babar al-wi/:Jid refers not only to reports transmitted by a single individual,
but more broadly, to any report which cannot be considered "well-attested"
(mutawitir). By "well-attested", the jurists mean that the content of the report
(matn) is transmitted by a sufficient number of different transmitters to preclude
the possibility of deceptive collusion amongst them. 12 Exactly what this "suffi-
cient number" might be was the subject of some debate, though interest in arriv-
ing at the actual figure was considered less important than a commitment to the
idea that multiple attestation ensured the probative force of the report in ques-
tion. A babar mutawitir, that is, a report which has passed the test of multiple
attestation (tawitur), is said to bring "certain" knowledge. 13 A babar al-wi/:Jid is
a report which has failed this test, and hence brings only "opinion" (~nn) as to
the law's content. This epistemological distinction was responsible for the com-
mon definition of babar al-wi/:Jid as a report which does not bring knowledge
(l.i yufidu al-' ilm). If it brings no knowledge, then its probative force is not es-
tablished. It would appear from this analysis that abbir alwaf;id (pl. of babar al-

9 -A good, but brief, biography of ljii 'i can be found in Al-Sayyid Abii al-Qasim al-Miisawi
Al-Khii 'i, The Prokgomma to the Qur' in, translated with an introduction by Sachtdina, Abdu-
lazizA., Oxford, 1998, p. 1-22.
10- Abii al-Qasim al-ljii'i, Mi!bip al-"!ii/, edited by Mu~ammad Suriir al-l:lusayni, 2 voll.,
Qum, 1417.
11 -Perhaps the most influential work in this format is Murta43- al-A~ri, Fara'id al-U!iil, 2
voll., Qum, 1416.
12 -On tawatur and babar a/-wipid generally, see B. Weiss, "Knowledge of the Past: the The-
ory of tawitur According to Ghazili", Studia !slamica, LXI (1985), p. 81-105.
13 -See B. Weiss, The Search for God's lAw, Utah, 1992, p. 259-328 and W. Hallaq, The His-
tory ofIslamic Legal Theory: An Introduction to Sunni 14!iil a/-fiqh, Cambridge, 1997, p. 27fT.
 182 ROBERT GLEAVE

iihad) cannot be used to elucidate the law, and indeed this was a position held by
e~rly Si'i jurists.
That this epistemological rigour caused some problems in the practical deri-
vation of the law (in works of furu-c: a/-fiqh or fatwiis) was clear to jurists. The
majority of a!Jbiir transmitted from the Imams, and found in the four books of
canonical Si'i ~adi!, were inevitably !Jabar al-wii~id. To lose these as potential
sources of the law would reduce the law's legitimacy. Hence, much exegetical
effort was expended to demonstrate that God, the Prophet and the Imams had
sanctioned the use of !Jabar a/-wii~id in legal argumentation. In general terms,
this was an interpretive project aimed at permitting the use of opinion-based
sources (:z;anniyyiit) in the law, of which !Jabar a/-wii~id was one example. In
more specific terms, it was a re-incorporation of an essential corpus of material
which was in danger of being ruled invalid. The interpretation of one piece of
evidence (Qur. 49:6) serves as a useful example, not only of the obvious links
between classical and modern Si'i jurisprudence, but also of the importance at-
tached to finding the correct basis upon which to justify this central legal proce-
dure without which the legitimacy of a jurist's exposition of the Sari'ah would
be undermined. 14
Qur'an 49 {al-f:lugurat), 6 reads:
If a miscreant (jisiq) brings you a piece of news (naba~) then
scrutinize (fotabayyanu) [it] so that you do not harm others through
ignorance (bi-gahalatn) and then [have to] repent for what you have
done.
There were a number of exegetical devices employed by Si'i jurists in their at-
tempt to establish that this verse decreed the permissibility of using IJabar al-
wa~id as a source of legal deduction. Certain semantic equivalences were as-
sumed at the outset. In particular, the term naba~ was seen as synonymous with
the technical term !Jabar. This slippage in terminology facilitated the debate over
the relevance of this verse to the methodology of the jurisprudence. 15
All the authors divide their discussions into two sections: conditional impli-
cation (mafhum ai-Jart) and descriptive implication (majhum al-was./). 16 In this
they demonstrate their allegiance to the classical tradition where the discussion
of this verse is normally presented under these two headings. This article con-
centrates on the former (mafhum ai-Jarf), as even in this limited area of enquiry,

14- See N. Calder, "Doubt and Prerogative: The Emergence of an Imii.mi-Shi'i Theory of
ijtihtid', Studia Islamica, LXX (1989), p. 57-78 and Gleave, Inevitable Doubt, p. 28-46 and p.
68-79.
15 - Other issues which facilitate linking this verse to !Jabar al-wtil;id include the meaning of
.fisq in the verse (which ljii'i deals with at Mi[btil;, 2, p. 155-156) and what is meant by tabay-
yun (which is clearly linked to earlier uses of the term, such as those outlined in Gleave, Inevi-
table Doubt, p. 72-73).
16- On these terms and their significance in Sunni jurisprudence, see Weiss, God's Law, p.
490-501. In Si'i legal theory, see Gleave, Inevitable Doubt, p. 179.
 MODERN Si<i DISCUSSIONS OF f:IABAR AL-WAJ:IID 183

the argument is complex. It is important to note at the outset that the debate
found amongst our three authors is not over whether !Jabar al-wa~id can act as
legal evidence (all three authors agree that it may). The debate revolves around
whether or not this particular verse establishes its probative force (~ufiiyyah). It
is in relation to this latter issue that some interesting differences emerge amongst
the three authors.

Conditional Implication
~adr summarizes "the argument from conditional implication":
Included within the conditional sentence of this verse is the link
between the command to scrutinize (al-amr bi-1-tabayyun) the repon
with the fact that a miscreant (fosiq) brought it. Hence, when this
[latter] is not the case, the [command] is also cancelled. This means
that there is no command to scrutinize a repon on those occasions
when a just (c adil [i.e. non-miscreant]} person brings it. !7
The argument here, as will become clear, relies upon the implied exclusiveness
of God's words in Qur. 49:6, that is, when God says, "If a fosiq brings you a re-
port, scrutinize it", he means one only need scrutinize those reports brought by a
fosiq. Mafhiim al-sart works in such a way that a negation of the protasis implies
a negation of the apodosis. A report from a transmitter whose moral probity is
established rc iidil) need not be scrutinized. ~adr goes on to explain that the rea-
son why one scrutinizes any report is to determine whether or not it is a valid
basis for subsequent action, therefore a report which needs no scrutiny (such as
an cadi/-transmitted report) is, in itself, a valid basis for action (gawiz al-e amal
bihi). Being a valid basis for action means, ~adr contends, having "probative
force" (~ufiiyyah). Hence this verse, phrased as it is in the form of a conditional
proposition, contains within it the implication that the report of a just person
rc iidil) - be it !Jabar al-wii~id or l]abar al-mutawiitir - has probative force
(though this does not necessarily imply that they have equal probative force).
This reasoning informs us further concerning the debate over the probative
force of l]abar al-wii~id. ~dr is not seeking to prove that all a!Jbiir al-ii~iid can
be used as legal evidence. Rather he is arguing that a !Jabar al-wa~id, transmitted
by persons of established moral probity, can have probative force in legal argu-
mentation. He therefore reserves an important role for the traditional ~adit sci-
ences of (say) c ilm al-rigiil. The only reports which can even potentially have
probative force are those transmitted by "sound" persons. The initial task facing
a jurist must then be to determine whether the report he is considering is trans-
mitted from afosiq or an cadi/. If the former, then it is clear from this verse that
the contents of such a report must be verified by external sources (in the form of
other reports from just transmitters), and then, in effect, one is not following the
fosiq's report, but following the external sources. If the latter, then the report can

17- ~dr, Durlis, 2, p. 153.

184 ROBERT GLEAVE

be the basis for legal action without the need for scrutiny of its contents. Since a
babar a/-cadii may be babar ai-wa~id or babar ai-mutawatir, the verse proves
that abbar ai-a~ad, providing they are transmitted by people of established
moral probity, can be legally valid bases for action. 18
Objections to the exegesis proposed by ~dr draw the reader into complex
rules concerning the occasions on which an implication (majhum) may, or may
not, be drawn from a conditional proposition (gumlah Jarfiyyah). Using these
rules, ljumayni argues that a conditional implication is invalid, and that Qur.
49:6 does not, therefore, support the probative force babar al-wa~id.
ljumayni first summarizes the position he wishes to reject. It is identical to
~dr's own view though ljumayni does not name his opponent (referring to him
simply as "one of the contemporary scholars"). It is likely that ljumayni is refer-
ring to ~adr here. He summarizes the position thus:
One of the contemporary scholars has argued that it is clear
[from the verse] that the condition (Jar[) is "the bringing [of the re-
port] by a person who is fosiq". The subject (mawrfuc) of the condi-
tion is "the report" itself 19
To understand the expression of the argument, it is necessary to return to the
verse:

(l) [A] If afosiq brings you a report, [B) then scrutinize it.

For ~dr, the protasis [A] is made up of a subject (mawtjuc) and a condition
(!art). The condition must be fulfilled before the command in the apodosis [B)
becomes effective. In cases where the subject is present, but the condition is un-
fulfilled, the command is ineffective. In Qur. 49:6, the subject in [A] is the "re-
port", and the condition attached to it is that it is "brought by afosiq". If there is
a report, and it is not brought by a fosiq, there is no command to scrutinize its
veracity.
ljumayni objects to this line of reasoning. First, he argues that ~dr's argu-
mentation is based upon the assumption that there is only one set of circum-
stances in which [A] is left unfulfilled. The report is brought by a fosiq ([A] is
fulfilled}, or it is brought by someone else ([A] is unfulfilled}. In fact, ljumayni
argues, logically speaking there is another circumstance in which [A] is left un-
fulfilled: a fosiq could bring a report, or a fosiq could not bring a report. Hence
the implicit line of reasoning could run, in agreement with ~dr:
(2) If a fosiq brings a report, then scrutinize it.
If a nonfoiq brings a report, then do not scrutinize it.
But, ljumayni argues, God might equally have been implying the following:

18- See Gleave, Inevitable Doubt, p. 44-45 and p. 65-75.

19- Ijumayni, Tah~ib, 2, p. 109.
 MODERN Si' i DISCUSSIONS OF !:lABAR AL-WAI:IID 185

(3) If afosiq brings a report, then scrutinize it.

If a fosiq does not bring a report, then there is no need to
scrutinize anything, because there is nothing to scrutinize.
Logically, ljumayni asserts, there is no reason to prefer one set of reasoning over
another, and hence one has to look towards other sources to determine God's
intention in these words. 20 ljumayni argues that common linguistic practice
{which he labels c urfl dictates the second line of reasoning to be the most plau-
sible. God did not imply by speaking this verse that the obligation to scrutinize
is only established for reports brought by a fosiq. The verse only makes it obliga-
tory to scrutinize the veracity of the report on those occasions when it is trans-
mitted by a fosiq. The verse does not prevent there being other occasions when
the obligation to scrutinize is binding. Consequently, the verse does not estab-
lish that babar al-wa~id are exempt from scrutiny:
The converse implied by one saying "If a fosiq brings a report to you" is "If a
fosiq does not bring a report to you". The arrival of a person of moral probity
rcadil) with a report in [the fosiq's] place is not referred to in the words [of the
verse] in such a manner that one might know what the ruling is [in such a cir-
cumstance]. 21
In technical language, ljumayni argues, based on common linguistic under-
standing, that the subject of the sentence is not "a report" generally, but the re-
port of a fosiq specifically and the condition applied to it is that it has been
brought. Since there is no means of scrutinizing a report which has not been
brought, the command in [B] is unavoidably lapsed if [A] is unfulfilled. This
kind of conditional sentence, when the fulfilment of the protasis is essential to
the operation of the apodosis, is termed by ljumayni al-sart mu~aqqiq li-1-
mawtjuc (literally, if clumsily, translated as "the condition is verified for the sub-
ject''). Such sentences permit no implication (lti mafhum lahu) because the com-
mand in the apodosis is dependent for its fulfilment upon the fulfilment of the
protasis. If the protasis is unfulfilled, logically speaking, the apodosis cannot be
negated (as an implication demands).
ljumayni is, then, arguing that there are two types of conditional sentence,
described in Table 1.
Table I

20- On intentionalism, see B. Weiss, The Spirit ofIslAmic Law, Athens, 1998, p. 38-65.
21 -ljumayni, Tahtjib, 2, p. 109.
186 ROBERT GLEAVE

The question then arises as to which type (1 or 2) "If a fosiq brings you a re-
port, then scrutinize it" (Qur. 49:6) belongs. ljumayni argues from common-
sense linguistic usage rc urj) and from the plain meaning of the verse (¢hir at-
ayah) that the verse is a type 2 conditional. Just as one cannot "not-circumcise" a
son one does not have, so one cannot "not-scrutinize" a report which has not
been brought. Hence the verse permits no implication. It is perhaps instructive
to note here that ~dr also bases his argument on the "clear meaning of the
verse" (al-¢hir min al-ayah al-karimah). 22
ljumayni argues further: even if one does not accept that the verse is cer-
tainly of type 2, one must admit that it is possibly of type 2. If it is possibly of
type 2, then it may not be of type 1, and hence one is taking an unacceptable
risk of transgressing the law by basing a matter as important as the probative
force of babar al-wa~id solely on the evidence of this verse. 23
If ljumayni's analysis indicates a more sophisticated analysis of the verse
than that offered by ~adr, ljii 'i's discussion is more complex still. ljii 'i deals
first with the objection (irad) that the order in the apodosis ("then scrutinize")
requires the fulfilment of the condition in the protasis to be logically coherent.
He terms this al-Jarr musawwiq li-1-mawtjiic or al-Jarr musawwiq li-1-bayan (lit-
erally, "the condition drives the subject/apodosis", which I take to be synony-
mous with ljumayni's al-Jarr mu~aqqiq li-1-mawtjiic). His argument against this
objection involves an even more detailed analysis of the functioning of condi-
tional propositions and their relationship to conditional implication.
First he claims that rationality or logic alone cannot dictate our understand-
ing of a conditional proposition, and therefore the legitimacy of any implication
drawn from it. Context must also play a role in any analysis. Consider the ex-
ample:
(4) IfZayd comes, then show him hospitality.
A logical analysis of such a conditional proposition might state that Zayd
arriving "causes" or "occasions" the order to show hospitality to him. Of course,
if Zayd does not come, then it is impossible to either show him, or not-show
him hospitality, because he is not present. ljii 'i asks the readers (or, perhaps
more accurately, listeners) to imagine this conditional proposition being spoken
by a master to a slave. Once supplied with a piece of contextual information
such as this, one can deduce that a logical analysis is insufficient. The master is
not implying that the only reason why the slave should show hospitality to Zayd
is because he has arrived. Rather, the master is ordering the slave generally to
22- Accusing one's opponent of excessive interpretation (ta'wil} is, of course, a common ploy
in debates of this kind. It represents what Calder labels "a measuring of the quranic text"
against an "instrumental structure" (such as "orthology, lexis, syntax, rhetoric, symbol/alle-
gory"). SeeN. Calder, "Tafiir from Tabari to Ibn Kathir: Problems in the Description of a
Genre, illustrated with reference to the Story of Abraham", in: Approaches to the Qurtin, G.
Hawting and A.A. Sharif (eds.), London, 1993, p. 101-140.
23 -The reasoning here works according to the logic of l~tiytif, on which, see Gleave, Inevita-
ble Doubt, p. I 05-112.
 MODERN Sri DISCUSSIONS OFf!.ABAR Al-WA~ID 187

cause he has arrived. Rather, the master is ordering the slave generally to show
hospitality to Zayd, and Zayd's arrival permits the slave to follow the order. In
short, the master is saying that Zayd is worthy of hospitality, whether or not he
actually arrives. If one imagines that Zayd does not come on the day of the or-
der, but instead sends a message, the slave would surely not be justified in treat-
ing the message with disdain or disgust. The slave could not argue that the mas-
ter ordered him only to show hospitality to Zayd if he came, and since he did
not come but sent a message, the converse of the order is implied (i.e. not to
show Zayd hospitality). The context of the master telling the slave enables us to
disallow the implication that the slave's hospitality is dependent upon the arrival
of Zayd. Context, then, plays a role in our deductions of implications.
At first blush, this example, and the observation concerning context, would
seem to support those like Ijumayni who argue that Qur. 49:6 does not estab-
lish the probative force of babar al-wa~id. It might do so along the lines of the
analogy (outlined in Table 2) between the example and Qur. 49:6.

Table 2

rings a report, t en scrutinize it

Now the purpose here is not to prove that the verse supports the scrutiny of
babar al-wa~id, but to show that it is a possible interpretation of the verse. Ijii 'i
is aware of this, but is untroubled by it. He is concerned only to establish that
context plays a part in our understanding of implication. In fact, he goes on to
argue that the conditional proposition in the verse is actually of a much more
complex type than the example concerning Zayd and the slave's hospitality.
Consider, he states, the following example:
(5) If God blesses you with a child, and that child is male, then cir-
cumcise him.
In this example the protasis is made up of two elements: (1) God blesses you
with a child, and (2) that child is male. In order for the command in the apo-
dosis to be fulfilled, both these elements of the condition must be met. One
must have a child, and that child must be male. In cases such as this, where a
condition is made up of two elements and both require fulfilment before the
apodosis can make sense, no implication can be drawn. Conditional proposi-
tions of this type are termed of al-fart musawwiq li-1-bayan.
The situation is different in Ijii 'i's next example:
188 ROBERT GLEAVE

(6) If Zayd comes, and he is wearing a turban, then show him

hospitality.
In this proposition, similarly, the protasis is made up of two elements: (i) Zayd
comes and (ii) he is wearing a turban. The first element must be fulfilled in or-
der for the command in the apodosis to be sensible (one cannot show hospitality
to Zayd, if he does not come). In this sense the first part is musawwiq /i-1-bayiin
and permits no implication. However, the second part is not of this nature. If
Zayd comes and he is bare-headed, then an implication can be drawn that one
should not show him hospitality. The second element of the protasis is not
musawwaq /i-1-bayiin. This indicates, for ljii 'i, that two different logical rela-
tionships exist between the apodosis and the two parts of the protasis. Part (ii)
permits implication (if Zayd comes and he is not wearing a turban, then one can
draw the implication that one need not show him hospitality).
Being a logically possible interpretation of the conditional proposition does
not, however, make it the most plausible - for that one needs context. If one
imagines, once more, a master making this statement to his slave, then one de-
duces immediately, ljii 'i argues, that the implication is valid. The master would
not add a meaningless condition to the sentence - he must have meant some-
thing by saying "If Zayd comes and he is wearing a turban". This is perfectly ac-
ceptable; indeed it is the most plausible interpretation of the conditional propo-
sition. The master is telling the slave that the slave's hospitality towards Zayd is
dependent upon Zayd wearing a turban (exactly why this might be so is irrele-
vant to ljii 'i's example).
ljii 'i has outlined, then, a more complex typology of conditional proposi-
tions than I::Iumayni (where they were divided into two categories):

Table3
oes tt permtt tm-
lication?
0

Table4
 MODERNS;< i DISCUSSIONS OF I;IABAR AL-WAI;IID 189

ljii )i adds other elements to this typology which need not concern us here.
The question which occupies him now is how to classify the verse Qur. 49:6:
If afiisiq brings you a report, then scrutinize it.
ljii )i argues that, for the sake of analysis, the verse can be reformulated thus:
(7) If (1) someone brings you a report, and (2) that person is afosiq, then
scrutinize the report.

With respect to (1), the protasis is musawwiq lil-baytin and no implication is

logically possible. With regard to (2), however, implication is logically possible.
The implication here would run:
(8) If (1) someone brings you a report, and (2) that person is not a
fiisiq, then there is no need to scrutinize the report.
This implication is then logically possible, but is it plausible? ljii )i argues that
the context enables our decision here. The verse is an order from God to all hu-
manity (not dissimilar to the master ordering the slave). If God did not mean to
signify, in an exclusive manner, the obligation to scrutinize the report brought
by a fosiq, then why did he include this element in the verse? Why did he not
say, "If anyone brings a report to you, then scrutinize it"? Since no convincing
answer can be found to this question, the implication becomes the most plausi-
ble interpretation in the context of the verse being an order from God to his
creation. In essence, ljii )i is arguing for the same position as ~dr. His reason-
ing, though, is more complex and sophisticated. For ijii )i (as for ~dr) the verse
establishes the ~uggiyyat babar al-wti~id, which is, in effect, a permission to use
babar al-wti~id as a basis for legally valid action.

The Ratio ofthe Command

ljumayni objected to the mafhiim al-fart interpretation on logical grounds
(mu~aqqiq li-1-mawr!ii'). He also maintained that the mafhiim al-Iart interpreta-
tion ignores the information given by God in the rest of the verse:
If a fiisiq brings you a report, then scrutinize it so that you do not
harm others through ignorance.
The reason (' il/ah) why one should scrutinize the report of a fosiq is, then, that
one might harm others. This harm will come about through ignorance (one is
ignorant about the truth of the matter, and takes the report of the fosiq as reli-
able, when in fact it is not). In technical terms, the fosiq's report brings no
knowledge ('adam a/-' ilm). This lack of c ilm is the 'illah behind the command
to scrutinize. 24

24 - The use of analogical terms (' i/14h, ta' Iii etc.) is noteworthy since Si'i scholars have con-
sistently rejected qiyis. It seems that the technical vocabulary of analogy was an inescapable
part of Si'i legal theory, influenced as it was by Sunni U[iil al-fiqh. See my "The lmami Shi'i
Rejection of qiyas", in: T~ Alta Papm: Islamic Ltgal Thtory, B. Weiss (ed.), forthcoming.
190 ROBERT GLEAVE

As is generally agreed, a babar al-wii~id does not give the listener or reader
"knowledge" (adam al-e ilm) that the report's contents are true. Rather, it cre-
ates only an opinion (~ann), or even a mere suspicion, that it is a true report.
Now, l:fumayni argues that if the verse indicates that the reason why one should
scrutinize a fiisiq's report is because following it might cause harm through igno-
rance (gahiilah), then this must also be the case for following a babar al-wii~id
transmitted from an eiidil (for that too does not create knowledge in the mind of
the listener). By analogy, if a babar al-fiisiq is to be scrutinized because of a lack
of knowledge as to its contents, then babar al-e iidil should also be subject to
scrutiny. Whilst l:fumayni does not argue that this analogy is necessarily valid, it
is possibly valid, and therefore lessens the likelihood that ~adr, l:fu>i and others
are correct in their deduction of majhum al-fart. As l:fumayni states:
The implication [that babar a/-eiidil need not be scrutinized be-
fore being accorded probative force] contradicts the general workings
of the ratio ( umzim al-tae lil) found in the last section of the verse.
Ignorance (gahiilah) is defined as "a lack of knowledge of reality"
(adam al-e ilm bi-1-wiiqjC). This characteristic is shared (muftarak)
by both the abbtir of a fosiq and the abbiir of an ciidil. So the ratio [in
the verse] would, by its clear and umambiguous meaning, necessitate
scrutiny of both categories. 25
l:fumayni's line of argument was not original, though his presentation of it was his
own. It had been raised (and generally rejected) by previous authors in their works
of ~J!til al-fiqh. ~dr, briefly, discusses three rebuttals of the reasoning outlined by
l:fumayni. 26 First, this view, in itself, relies upon an implication. The implication
is that because ignorance caused by the babar alfoiq must be remedied by scru-
tiny, ignorance caused by a babar a/- c tidil must also be remedied by scrutiny, that
is, there is an assumption that the two sorts of ignorance, caused by the two sorts
of report, are eliminated by the same sort of scrutiny. This is unproven. 27
Second, a babar al-wti~id does not necessarily bring ignorance. Admittedly,
it does not bring knowledge of the truth of the report's contents. However, if it
can be demonstrated that a babar al-wti~id can form the basis for legitimate ac-
tion, then it must be the case that one is (legally speaking) justified in that ac-
tion. If this is the case, then one must "know" that one is justified. This argu-
ment, attributed to Na >ini, can be phrased: although one may not be certain
that the content of a babar al-wii~id is true, one can be certain that one is fol-
lowing the correct procedure in following a babar al-wii~id. Following babar al-
wii~id, therefore brings a "procedural" certainty. ~adr quotes Na >ini:

The point of the verse is the establishment of the probative force

of babar al-wti~id. The probative force of babar al-wa~id means that

25 -ljumaynl, Tahqib, 2, p. 112.

26- -?adr, Dzmis, 2, p. 154-145.
27 - ljumaynl counters this rebuttal by claiming that ignorance (j,ahiilah) is a general term
which cannot be divided into types of ignorance. See ljumaynl, Tahrjib, 2, p. 1 I 5.
 MODERN Si' i DISCUSSIONS OFI:fABAR AL-WAJ:IID 191

[under certain circumstances] there is a legitimate means of creating

!Jabar al-wti~id as true. 28
If !Jabar al-wti~id is a legitimate basis for action, chen one must be permitted to
act on its message as if it were true. This does not mean one is certain that its
contents are true; rather it means that one is justified in treating it as if it were
true. The legitimacy of this practice is therefore "known" (c ilmi), and therefore
unaffected by the cilia attributed to the reason for scrutinizing the !Jabar al-
fosiq.29
Third, the word gahiilah need not be exclusively a reference to ignorance (i.e.
lack of knowledge). From the context of the verse (and ~adr quotes ljurasani for
support on this point),3° it seems clear that the meaning is "stupidity" (safohah).
Hence the verse actually means "If a fosiq brings you a report, then scrutinize it
so that you do not harm others through stupidity". What could be more stupid
than following the word of afosiq without scrutinizing it in terms of veracity?3 1
The fact that ljumayni deals with each one of these objections to the
cumiim al-tac lil reasoning demonstrates that these lines of enquiry were part of
an established tradition of learning. I will not complicate my presentation fur-
ther by outlining ljumayni's objections to ~adr's objections to ljumayni's objec-
tions to the conditional-implicit reading of Qur. 49:6.3 2 The complexity of the
situation demonstrates the intellectual casuistry sufficiently.
ljii 'i' s presentation of the cumiim al-tac Iii objection is similarly involved,
but as with mafhiim al-!art, his approach is more sophisticated and nuanced
than his contemporaries. First, he considers ljurasani's point that gahtilah need
not mean ignorance here, but could mean safohah (stupidity). Whilst it is clear
that acting on a !Jabar al-.fosiq without scrutinizing its contents could be termed
"stupidity", it is not clear that acting on a !Jabar al-ciidil might be similarly de-
scribed. Indeed, he argues, one follows the reports of ctidil people on a daily ba-
sis, in areas outside the scope of religious law. Following a !Jabar al-ctidil is not
an obviously stupid act, whilst following a !Jabar al-.fosiq is. This lessens the force
of lj umayni' s objection that to interpret gahtilah as anything other than c adam
al-cilm goes against a common-sense interpretation of the verse.

28 - The reference is to M~arnmad J:lusayn ai-Na'ini, Fawti'id al-J4!iil, 3 voll., Tehran,

1953, 3, p. 172. See ~dr, Duriis, 2, p. 155.
29 - ljumayni argues that the knowledge that one may act on a report, and treating that re-
port as if it were true, are quite different matters. Distinguishing between them makes little
different for the muqallidiin, but is a crucial skill for jurists to use. See ljumayni, Tahtjib, 2, p.
116.
30- Mu~ammad ~im al-ljucisani, Kifoyatal-Ufiil, Qum, 1415, p. 340-341 and ~dr, Du-
riis, 2, p. 156.
31 - ljumayni argues that there is no record in the dictionaries, or in other works of gahalah,
meaning stupidity. The term always means "lack of knowledge". See ljumayni, Tahtjib, 2, p.
115-116.
32 - See notes 27, 29 and 31 above.
192 ROBERT GLEAVE

Second, lj ii ,i concerns himself with the cumum al-ta< Iii objection directly.
Even if one accepts that gahtilah (in the context of the verse) means "lack of
knowledge", and one further accepts that this "lack of knowledge" is the cillah
for the ruling to scrutinize, a defense of the position that this verse supports the
~uggiyyat babar al-wti~id is still possible. Consider the example:

(9} If this is a pomegranate, then do not eat it because it is sour.

The general cil/ah derived from this sentence is that one should not eat sour
foods. The implication of the verse (i.e. the negation of both the protasis and the
apodosis) is:
(1 0) If this is not a pomegranate, then eat it.
In such circumstances the implication is clearly invalid because it contradicts the
ci//ah. The cillah overrules the mafhiim. Foods other than pomegranates can be
sour, and should also not be eaten. ljumayni, and those who argue like him, are
attempting to assert that Qur. 49:6 is analogous to example (1 0). A report from
a fosiq requires scrutiny before it can be accorded ~uggiyyah. The ratio for this
command is that "it does not bring c ilm". Other reports which also fail to bring
c i/m, therefore, also have to be scrutinized.
However, ljii ,i argues that the verse should be understood in its entirety:
If a fiisiq brings you a report, then scrutinize it so that you do not
harm others by ignorance and then have to repent of what you have
done.
The type of ignorance-based action mentioned in the verse is, then, one which
requires repentance. The question remains for lju ,i whether or not the kind of
ignorance engendered by babar al-wti~id is of the kind which requires repen-
tance if acted upon. ljii ,i thinks it is not.
In order to prove this position, ljii ,i turns to yet more examples:
( 11) A man makes a vow and later finds that fulfilling this vow
would lead him to contravene the Sari<ah. He therefore does not
fulfil the vow.
(12) A man makes a vow, the fulfilment of which is not in contra-
vention of the Sari<ah. However, due to his neglect or obstinacy,
he fails to fulfill the vow.
ljii ,i asks whether repentance is due in both situations. His answer, based on
legal understanding explained elsewhere, is that both require some sort of com-
pensatory penance (ka.lfiirah). However, there can be no doubt that the ka.lfiirah
for the first man will be less than that for the second. The first man has trans-
gressed the Sari<ah by failing to fulfill a vow, but he is not to be blamed
(mac rjur), because he did this out of (his earlier) ignorance of the law (gahtilah).
The second man, however, is to be blamed, and his sin is the result of deliberate
neglect of his duties as a Muslim.
ljii ,i continues, using dense and difficult prose, and argues that the final ele-
ment of the verse ("repent of what you have done"} is clearly a reference to the
 MODERNS;< i DISCUSSIONS OFI:IABAR AL-WAI;IID 193

the "serious" kind of repentance resulting from the transgression of the second
man (i.e. his wilful neglect of Iarci duties). If the ~uii)yyat !Jabar al-wa~id is a
valid principle (as all scholars agree), and, by some mishap, following a !Jabar al-
wa~id leads to some sort of harm, then it is clear the blame due is analogous to
that due to the man in example (11) (unintentional negligence), and not to the
man in example (12). If, however, a !Jabar al-wa~id transmitted by afosiq is used
as the basis for action, then the blame for any harm which results is analogous to
the blame due to the man in example (12) (wilful neglect).
In conclusion then, ljii 'i's interpretation of the meaning of the verse can be
summarized thus: although harm (that is, a transgression of the Sari'ah) may
result from following a !Jabar al-wa~id transmitted by an 'adil, it is not the sort
of transgression which requires repentance. The verse clearly states that this sort
of repentance is only due when one follows the !Jabar al-fosiq (be it wa~id or
mutawatir). The sort of knowledge gained from the !Jabar al-cadil al-wa~id (ac-
cording to the verse) is not knowledge of the truth of its contents (that remains
:;;:annz}. Rather it is a knowledge that one has obeyed the rules of the Sari'ah
concerning the deduction of legal rulings from evidence (this, ljii 'i terms
cil~n bi-l-tacabbud, or cilman ta' budiyfln).

Conclusion
The discussions concerning the basis for action on !Jabar al-wa~id described here
could be seen as evidence of a certain unoriginality in modern Si'i ~adi! debates.
The established lines of enquiry are explored, and expositions well within the
bounds of classical Si'i scholarship are delineated.33 However, each scholar's
presentation is individual, and at times each can be seen to be using justifica-
tions for established positions which are both novel and scholarly. Scholars
demonstrate their originality by probing certain lines of enquiry and exploring
opinions previously thought defunct and rejected. This, it might be argued, is a
characteristic of classical legal discourse which has been carried forward into the
modern period with little or no modification. The tortuous attention to the legal
relevance of particular words found in the Quranic text, and a willingness to hy-
pothesize about their possible implications for the workings of the Sari'ah do

33 -A criticism of the portrayal of "unoriginality" in classical Muslim scholarship (particularly

with regard to fiqh) has been attempted by a number of recent scholars. See W. Hallaq, "U!ril
al-fiqh: Beyond Tradition",Journa/ ofIslamic Studies, XXXII (1992), p. 172-202. For a differ-
ent criticism of the charge of"unoriginality", seeN. Calder, "The' Uqiid rasm al-mufti oflbn
'Abidin", Bulktin ofthe School of Oriental and African Studies, LXIII (2000), p. 215-228. The
misconception that there is a "lack of originality" in the classical legal texts is summed up in
the term taqlid, on which Calder states: "it is one the West has found difficult to understand.
The term [taqlid] is more a justified acknowledgement of authority than Western scholarship's
'blind submission'." (Calder, "'Uqiitl', p. 217). In general terms, Calder recognizes originality
can come from the reformulation of traditional rule-related discourse. Hallaq prefers to see
"originality" as present in the classical works, but unaccountably ignored by Western scholar-
ship.
 194 ROBERT GLEAVE

not encourage the observer to recognize a pre-modern/modern division in Sic!

discourse concerning ~adi!. Discussions such as these demonstrate that modern
Imam! discourse, in the main, represents a continuation of classical modes of
learning. Generally speaking, the major Sic! intellectuals engage in producing
works which fit well into the traditional generic categories: tafiir, fiqh, ~iii and
c ilm al-rigal.
This is not to say that unprecedented positions have not emerged. Ijumay-
nl's presentation of the wilayat al-foqih doctrine, for example, has its basis in a
re-reading of the meaning of the famous "delegation" report of Imam ~adiq,
transmitted by cumar b. f:Ian~lah. However, this re-reading can be found in a
work which fits easily within the boundaries of a work of fiqh (that is, his Kitab
al-baf). 34 I am also not arguing that new genres of religious writing are absent
from any assessment of modern Sl'l religious writing. The eclectic and hortatory
writings of Dr 'All Sarl'atl display a variety of generic characteristics (from reli-
gious tract through to newspaper articles) which might be termed "modern" or
"Western" in inspiration. 35 ljumaynl himself revived the genre of political ju-
risprudence in his Vilayat-e foqih: Hukiimat-e Is/ami. 36
However, the discussions analysed here, in all their hair-splitting detail, are
typical of much of modern Sl'l religious scholarship. The concern is with legal
utility, not, strictly speaking, with authenticity. The desire is to justify usage,
through an exposition of a Quranic proof text. This arises from a belief that the
a~adi! are essential to the academic presentation of the Divine Law. There is an
acceptance underlying works such as those discussed here that babar al-wa~id,
even with a sound isnad, do not bring certainty regarding historical accuracy.
Abbar al-a~ad, however, do contain data which, though not of guaranteed accu-
racy, are of legal relevance. The characteristically "modern" discussions of both
the Orientalists and some Sunni modernists concerning historical authenticity,
and the rear-guard action of some, justifying the isnad institution in "scientific"
terms, are, on the whole, absent from the discussions of the modern Sic! intellec-
tuals.37 Sl'l writers such as ~adr, ljumaynl and IjuJI inhabit a landscape rela-
tively untouched by the onset of modernism, untroubled by historical positiv-
ism. The debates are no less rigorous or hard-fought for this fact. It is merely
that the parameters of the debates owe more to the classical tradition than any
conception of "modern" intellectual enquiry.

34- See .ljumayni, Kitiib al-baf, 5 vall., Nagaf, 1391. It forms the basis for the analysis by
Calder in his, "Accommodation and Revolution".
35 -On Sari<atl's influence from western modes of discourse see B. Hanson, "The "Westoxi-
fication" of Iran, Depiction and Realities of Behrangi, Al-e Ahmad and Shariati", International
journal ofMiddle East Studies, XV (1983), p. 1-23.
36 - .lj umayni, Viliiyat-e foqih: Huktimat-e lsliimi, Tehran, 1978.
37- For a summary and criticism of Orientalist views, see W. Hatlaq, "The Authenticity of
Prophetic l:ladith: a Pseudo-Problem", Studia Islamica, LXXXIX (1999), p. 75-90. See n.l
above for references on the debates around authenticity within the Muslim community.