The Principle of “Laws are Subordinate to Benefits & Harms” in Imāmī Shī’ī Legal Theory and its Implications in Non-Ritualistic Law
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Foremost, I would like to express my sincere gratitude to my dissertation advisor Dr. Wasti of The Islamic College. His input and important suggestions were highly valuable in steering me into the right direction as far as the paper and its clarity were concerned. In addition, I would like to thank my sister in law for taking the time out to proofread the paper and offering detailed feedback.
I would also like to thank two of my teachers from the seminary of Qom, Shaykh Abul Ḥasanī and Shaykh Ḥaider Ḥobbollah. Shaykh Abul Ḥasanī has played a significant role in my studies over the last 6 years in the seminary and was kind enough to assess some of the arguments I intended on putting forth in this dissertation. Shaykh Ḥobbollah also dedicated some of his valuable time to discuss some of the ideas I wished to propose and was kind enough to give me a copy of his latest book Shumūl al-Sharī’ah which has been cited a number of times in this paper. Needless to say, in no way do the views present in this paper necessarily reflect the views held by either of these scholars.
Finally, I would like to express my gratitude to my wife for providing her selfless support over the past two years as I concurrently pursued an MA from the Islamic College and a BA from the Qom seminary. This accomplishment would not have been possible without her. Thank you.
Ali Imran Syed
August 20th, 2018
Shī’ī jurisprudence is centered on the theological presumption that divine laws are subordinate to benefits and harms (al-aḥkām tābi’ah lil-maṣāliḥ wa al-mafāsid). While the theoretical discussions underpinning this principle are not overly disputed, issues arise from the recognition that the derivation of law is not fundamentally concerned with real law (al-ḥukm al-wāqi’ī), but rather with apparent law (al-ḥukm al-ẓāhirī). How one ascertains the consideration of benefits and harms within apparent law – whose very nature entails the possibility of error – is a challenge to which several Imāmī Shī’ī jurists have dedicated numerous pages. Many have proffered theories for reconciliation between real and apparent law – theories which are contingent on the principle of al-ishtirāk bayn al-‘ālim wa al-jāhil. This principle states that real laws are legislated by God for both those who are aware of, as well as ignorant of the law. If this principle is invalidated, then the discussion on reconciling real and apparent law is deemed irrelevant; in such a case, knowledge of a law would become a precondition considered during divine legislation. This conclusion would alter the course of discussion to a more critical discourse concerning the perception of benefits and harms; whether such perceptions constitute knowledge; and how they guide and determine what the law ought to be. If it were possible to establish a probative method to ascertain benefits and harms, it would become the task of a jurist to ensure that laws – at least those of a non-ritualistic nature – always remain subordinate to them.