Towards the utility of a wider range of evidence in the derivation of Sharīʿa precepts : paradigm shift in contemporary Usūlī epistemology

• Main Author: Bata, Hashim
• Published: University of Warwick 2013
• Subjects: 340; KBP Islamic law
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.595742

The fundamental distinction made in Shiite legal epistemology is that between qaṭʿ (certainty) and ẓann (conjecture). Contemporary Uṣūlī epistemology maintains that in the juristic process of the derivation of Sharīʿa precepts, a mujtahid is prohibited to use any evidence that gives rise to mere ẓann. Rather, he must only use evidence that gives qaṭʿ of Sharīʿa precepts. Furthermore, this discourse distinctly argues that a mujtahid can also derive knowledge of Sharīʿa precepts through the ẓann al-khāṣ (especial conjecture) that is emanated from evidence that is ẓannī (conjectural) by nature but is substantiated by the Divine Lawgiver Himself through other qaṭʿī (certainty bearing) evidence. This understanding effectively curtails the derivation of Sharīʿa precepts to only the textual evidence of the Qurʾān and sunna, and in the present day this textualist dependency can be criticised for contributing towards the gulf that exists between traditional Shiite jurisprudence and matters that are pertinent to contemporary societies. In light of this, this study critically analyses the contemporary discourse of Uṣūlī epistemology and explores whether it has the potential to legitimise the epistemic validity and utility of a wider range of evidence in the juristic process of deriving Sharīʿa precepts. It essentially focuses on the strength and rigour of the epistemological underpinnings that are maintained in Uṣūlī legal theory, and by highlighting that these underpinnings and the underlying epistemic assumptions that are prevalent in contemporary Uṣūlī legal epistemology are rationally derived, this study explains how and why the Uṣūlīs have been led to rationally give preference to textual evidence over nontextual evidence. This study concludes that Uṣūlī legal theory has the potential to, and moreover is required to, undergo an epistemological paradigm shift that permits the acceptance of the epistemic validity of a wider range of evidence, other than just those that emanate qaṭʿ or ẓann al-khāṣ.