An Oft-Repeated Fallacy in Writing and Teaching Islamic Legal Methodology and Its Significations: The Case of Mafqūd

Abstract

Once the evidence of “istiŝģāb” (presumption of continuity), a matter widely discussed within uŝūl al-fiqh (the science that studies the sources of al-fiqh and the methods of deriving rulings from these sources; as well as the literature related to this science), is examined from an integrative perspective, it can be said that it is the expression of a chain of thoughts converging on the essential consideration “al-yaqīn lā yazūl bi al-shakk” (a certainty is not removed by doubt). The common aspect of this evidence echoed in Islamic jurisprudence might be verbalized as “to rule that a situation existing previously is continuing at present until the contrary is proven”; to put it succinctly, “to presume that what is remains in the same state as it was”. The article does not discuss types of presumption of continuity, nor the expansions of this main principle that appears in Mecelle-i Ahkâm-ı Adliyye (article 4) and is, according to some authors of legal maxim works, one of the five universal maxims encompassing the whole of Islamic law. Instead, it draws attention to and deliberates on the significations of an oft-repeated fallacy exemplifying knowledge that has become almost axiomatic in the examination of the evidential value of “istiŝģāb al-ģāl” (presumption of continuity of a legal status quo ante) which is generally presented as a type of presumption of continuity. A methodological disagreement is formulated as, “according to the Hanafīs, presumption of continuity is a valid proof for preserving (daf‘) existing rights depending on preexisting conditions, yet it is not valid for the acquisition of new ones (ithbāt); whereas it is valid in both cases according to the Shāfi‘īs”. One of the salient examples of this relates to the question of a person who has moved away from his hometown and whose vital status is unknown (mafqūd): Can he inherit property, and can his property be inherited? According to the information reiterated in numerous Hanafī works of uŝūl al-fiqh, recent textbooks of uŝūl al-fiqh, as well as modern scientific publications, for both the Hanafīs and the Shāfi‘īs, the property of the missing person –before the death of the missing person is certain or is declared by the court– cannot be divided among his heirs (presumption of continuity is a valid proof in daf‘); however, the two schools hold different positions on whether the missing person can inherit the property of his relatives who died within this period before the missing person’s vital status is clarified. According to the Shāfi‘īs, the missing person can inherit from them (presumption of continuity is a valid proof in ithbāt, too), whereas the Hanafīs maintain that the missing person cannot inherit from them (presumption of continuity is not a valid proof in ithbāt). Our investigation concludes with the opinion that the widespread knowledge in the writings and teachings of uŝūl al-fiqh concerning the heirship of the missing person is an “oft-repeated fallacy” and observes that this fallacy, repeated for centuries, also persists in the present day. It is also emphasized that the second part of the formula “the missing person is deemed alive in respect to his own rights and dead in respect to the rights of others”, which became widespread in Hanafī works of furū‘ al-fiqh ([in short al-fiqh] the science that deals with a person’s duties towards Allah and both dimensions of positive law, i.e. substantive law and procedural law; as well as the literature related to this science) after a certain period, is not a sound statement and might even have contributed to the intensification of the abovementioned oft-repeated fallacy. In fact, it is observed that both Hanafī and Shāfi‘ī jurisprudents (as a matter of fact, jurisprudents of all four schools) exhibited sound reasoning ability dealing with the question of the heirship of the missing person; nearly all of them defended the opinion that the same ruling would not apply to both regular heirs and the missing person. They asserted, beginning with the probability that the missing person could be alive, that the missing person’s share must be preserved/taken under protection until his status was clarified; moreover, they attached particular importance to the calculation of the highest share the missing person might receive pursuant to the present table of inheritors as required by the rulings of Islamic laws of inheritance. Therefore, there seems to be no essential disagreement among mentioned schools on the kernel of the issue. While it is stated that according to al-Shaf‘ī/the Shāfi‘īs the missing person while missing can be an heir to his relatives, whereas according to the Hanafīs he cannot be, our investigations make it possible to claim that the origin of this statement is a statement in al-Dabūsī’s book titled Taqwīm al-adilla. However, his statement contains the expression “according to one/some of the Shāfi‘ī scholars” and not “according to al-Shaf‘ī” nor “according to the Shāfi‘īs”. Nonetheless, it is observed that after a certain period, some Hanafī works of uŝūl al-fiqh began to present this fallacious example to explain the abovementioned methodological disagreement. The article classifies prominent Hanafī works on uŝūl al-fiqh after al-Sarakhsī under three categories: a) Those that preferred not to use the matter of heirship of the missing person as an example, b) those that used this example only to explain the Hanafī position, and c) those that gave space to this example in order to show both the Hanafī and Shāfi‘ī approaches comparatively. Examining the Hanafī literature on furū‘ al-fiqh, it is observed that al-Shaybānī’s (d. 189/805) narrative about this issue in al-Aŝl, the primary resource of the school, has not been generally reflected afterwards in its entirety. The statement, “the missing person cannot be heir to anybody who died while he was missing” that appeared first in al-Qudūrī’s (d. 428/1037) al-Mukhtaŝar, has been effective in reinforcing of mentioned fallacy (that is, “the missing person could inherit from one’s relatives according to the Shāfi‘īs, whereas the missing person could not be an heir according to the Hanafīs”) which is clearly reiterated in some later Hanafī books on uŝūl al-fiqh. In addition to that, the widely circulated formula in Hanafī works on furū‘ al-fiqh that “the missing person (…) is deemed dead in respect to others’ rights” also contributed to the circulation of this fallacy. Some authors, taking notice of that the statements regarding the missing person –he cannot be an heir to anybody and is deemed dead in respect to others’ rights– are inconsistent with the ruling applied in this matter, provided reasonable explanations for this inconsistency. However, recently written textbooks and numerous research texts concerning the issue have failed to take notice of these explanations and continue to use this formula as a symbolic example of the methodological disagreement among the Hanafīs and the Shāfi‘īs. As far as we can see, Shāfi‘ī works on uŝūl al-fiqh and furū‘ al-fiqh neither state that the missing person can be an heir, nor that there exists a methodological disagreement between themselves and the Hanafīs. On the contrary, principal Hanafī and Shāfi‘ī sources on furū‘ al-fiqh (particularly al-Shaybānī’s [d. 189/805] al-Aŝl) determine that “the missing person is not known to be alive or dead” and his shares is taken under protection until his status is clarified”, which means that the two schools do not differ from each other in their approaches. Although this is obvious, it is observed that a fictitious methodological disagreement has been produced as if there was a disagreement in furū‘ al-fiqh, which has led to the oft-repeated fallacy: “The missing person cannot be an heir according to the Hanafīs but can be one according to the Shāfi‘īs”. This fallacy has survived for centuries and still persists today. Conversely, it is established that numerous scholars of uŝūl al-fiqh refrain from repeating this example. Interestingly, Ibn Nujaym, who repeats this fallacy in his various works, cites in his The Treatise on Istiŝģāb, Ibn Humām’s statement –the one he follows– “the missing person is an heir according to Shāfi‘īs, but not according to us”, and then he states that this is a “sahw” (an overlooked mistake). Afterwards Ibn Nujaym provides the explanation, “the ruling transmitted by both schools is that the missing person’s share will be preserved”. Still, among those who are cognizant of this warning, which could fulfill a significant function in correcting the oft-repeated fallacy in question, none of them –as far as we know– exhibited a particular interest in it or attempted to disrupt the faulty knowledge transfer with a critical perspective in the light of the abovementioned analysis. The article ends by dealing with some problems of method suggested by the above-mentioned findings and their negative impacts on the development of legal thought. It draws attention especially to the disadvantages of regarding established knowledge reiterated in the works of uŝūl al-fiqh as data distilled through centuries without exhibiting any hesitation about their reliability and of neglecting works of furū‘ al-fiqh. It points out that the rulings of furū‘ al-fiqh appear in these works merely as examples, that is to say, the intention here is not to teach the ruling of furū‘ al-fiqh, but to explain the relevant methodological principle. Meanwhile, it shows that numerous authors, probably under the influence of the repetition for centuries, cite those passages of works where presumption of continuity and the missing person are mentioned and presume that this knowledge is contained in the relevant passages, even though the supposed knowledge does not exist in the works of uŝūl al-fiqh they cite. In addition, the article underlines the significance of a critical approach and conceptual refinement in writing and teaching al-fiqh, and the necessity of encouraging analytical thought and prioritizing theories of al-fiqh instead of making students memorize rulings of legal events.