Abstract
One of the epistemological results emerging from the present study is that the different forms of correlational inference, known in the Islamic jurisprudence as qiyās, represent an innovative and sophisticated form of reasoning that not only provides new epistemological insights into legal reasoning in general but also furnishes a fine-grained pattern for parallel reasoning which can be deployed in a wide range of problem-solving contexts and does not seem to reduce to the standard forms of analogical argumentation studied in contemporary philosophy of science.
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- 1.
Hallaq (1997, p.117).
- 2.
Young (2017, pp. 21–32) acknowledges and discusses his debt to the work of Hallaq in many sections of the book.
- 3.
Also relevant are the following lines of Hallaq (1997, pp. 136–7), quoted by Young (2017, p. 25): “In one sense, dialectic constituted the final stage in the process of legal reasoning, in which two conflicting opinions on a case of law were set against each other in the course of a disciplined session of argumentation with the purpose of establishing the truthfulness of one of them. The aim of this exercise, among other things, was to reduce disagreement (ikhtilāf) among legists by demonstrating that one opinion was more acceptable or more valid than another. Minimizing differences of opinion on a particular legal question was of the utmost importance, the implication being that truth is one, and for each case there exists only one true solution.”
- 4.
Young (2017, p. 1).
- 5.
See too Hallaq (1987a, b, 2004, 2009a, b). Another early study that stressed this point is Larry Miller ’s (1984) PhD thesis of 1984 on the development of dialectic in Islam. Hassan Tahiri (2008, pp. 183–225) discusses the crucial role of dialectical reasoning for astronomy and for the development of sciences in general. See also Tahiri (2014, 2015, 2018).
- 6.
Hallaq (1997, p. 82).
- 7.
Cf. Ibn Taymiyya against the Greek Logicians, edited and translated by Hallaq (1993).
- 8.
Cf. Young (2017, p. 10). The term has quite often a broader meaning encompassing legal reasoning in general. However, Young’s choice for its translation renders a narrower sense that stems from al-Shīrāzī’s approach.
- 9.
- 10.
The term meaning-explanation stems from Martin-Löf’s CTT (see Sect. 4.2). It refers to a way of providing meaning to an expression by setting out rules that determine what needs to be known in order to make an assertion involving that expression.
- 11.
Actually, al-Shīrāzī, who was a follower of the Shāfiʿī school of jurisprudence, endorsed the mistrust of the Shāfiʿī-s in relation to what they considered subjective features of istiḥsān and maṣlaḥa. Indeed, although he accepted that the extension of the scope of a juridical ruling is necessary, he was convinced that extensions should result from a rational process such as the one deployed by a qiyās.
- 12.
See above, nos. 71 and 74 in Chap. 1.
- 13.
The notion of dialectical meaning-explanation is the dialogical counterpart of Martin-Löf’s (inferential) meaning-explanation mentioned above. The dialectical meaning-explanation of an expression amounts to setting rules that establish how to challenge and defend that expression. These rules also indicate how to produce a local reason for a claim and how to analize such a reason – see Sect. 4.4 in the present part of the book.
- 14.
It is also worth mentioning that, to the best of our knowledge, there is no systematic study yet comparing the theory of juridical argumentation as developed within the Islamic tradition with the dialectical form of medieval disputations known as Obligationes. Such a study, that will fill up some flagrant gaps in the history of the development of rational argumentation, is certainly due.
- 15.
We have borrowed the term “parallel reasoning” from Bartha (2010).
- 16.
Young (2017, chapter 4.3).
- 17.
In general the term ḥukm refers to norm or ruling. In the context of the qiyās it indicates the ruling of the aṣl which the proponent seeks to transfer to the farʿ. See Young (2017, p. 610).
- 18.
The Arabic terminology makes use of the botanic metaphor of, respectively, root and branch in order to express the relation between the case established by the juridical sources, al-aṣl, and the case under consideration, al-farʿ. The idea is not that the farʿ is a subcase of the aṣl, but that the ruling claimed to apply to the farʿ is rooted on that of the aṣl.
- 19.
According to a personal email to S. Rahman, Young indicated that his translation of the term ʿilla – namely, occasioning factor – is based on the one by Bernard Weiss (1992, 1998). The term is also translated as effective cause, operative cause, ratio legis and ratio decidenci. Some of these translations do not seem to bear the causal significance of the term. The term ʿilla is derived from ancient Syriac, where it means a “fault” or “blame” constituting the cause for returning articles or property. The term penetrated from Syriac into the lexicon of rational thought even before Aristotelianism penetrated Arabic culture (we owe the remark on the etymology of the term ʿilla to David Joseph (2010; 2014)). In a general context, a distinction is drawn between providing a ground (ʿilla) and providing a factual cause or reason (sabab): while grounding is a rational endeavour, providing a sabab might be limited to an empirical task. It seems to be related to St. Thomas’ (Summa Theologiae 2.2c:) distinction between propter quid and quia that stems from Aristotle’s distinction in Posterior Analytics 13 (for a discussion in the context of CTT see J. Granström (2011, p. 157). In the context of the qiyās the notion of sabab seems to allude to the justification underlying the choice of one specific occasioning factor. This use is witnessed by al-Shīrāzī’s denomination of the second subtype of qiyās al-ʿilla as qiyās plainly evident by reported reason (al-wāḍiḥ bi-al-sabab). That is, those qiyās where the ʿilla is not found in the naṣṣ but specified on the basis of some reason stemming from a specific historical background of naṣṣ reported by the Companion of the Prophet. In fact we should also mention the notion ḥikma that stands for the underlying higher purpose of the ʿilla. Moreover, the notion of ḥikma underlies the doctrine of rational juridical preference or istiḥsān, and the theory of public welfare or maṣlaḥa mentioned before. However, this notion does not seem to play a role in the inferential processes deployed by the use of a qiyās.
- 20.
See al-Shīrāzī (2016), Mulakhkhaṣ, fī al-jadal, fol. 5a.
- 21.
- 22.
See al-Shīrāzī, Mulakhkhaṣ fī al-jadal, fol. 5a.
- 23.
Cf. Young (2017, p. 115).
- 24.
See al-Shīrāzī, Mulakhkhaṣ fī al-jadal, fol. 5a, cf. Young (2017, pp. 113–14). al-Baṣrī distinguishes a positive inferential process (Qiyās al-ṭard, correlational inference of co-presence), covered by the description above, from a negative one (Qiyās al-ʿaks, correlational inference of the opposite). The result of the negative one is to deny that some designated juridical ruling that applies to the root-case also applies to the branch-case, on the grounds that the occasioning factor does not apply to the branch-case – see Abū al-Ḥusayn al-Baṣrī (1964, pp. 697–9) and K. al-qiyās al-sharʿī (pp. 1031–3) (trans. of the latter in Hallaq (1987a)); quoted by Young (2017, p. 109).
- 25.
See al-Shīrāzī, Mulakhkhaṣ fī al-jadal, fol. 5a.
- 26.
Cf. Young (2017, p. 109).
- 27.
See al-Shīrāzī (2003, pp. 99–101; 1995, pp. 204–10).
- 28.
See al-Shīrāzī (1987, pp. 36–8).
- 29.
- 30.
- 31.
From now on we write “set” (boldface) instead of “set” in order to indicate that we deploy intensional sets as developed within CTT (see the appendix).
- 32.
Ranta (1994, pp. 55–7).
- 33.
- 34.
For example, intuitively, if A is the set of natural numbers and B is the set of whole numbers, then the function takes one natural number and yields an element of the set of whole numbers B, e.g. b(x) = 2x.
- 35.
- 36.
Alexander of Aphrodisias called such a form of construction prosleptic proposition – see L. Gili (2015).
- 37.
Bartha (2010, p. 109).
- 38.
See e.g. Bartha (2010, pp. 36–40).
- 39.
We borrowed the example from Hallaq (1985, pp. 88–9).
- 40.
Let us call toxic drink, or drink where toxicity is present; those drinks inducing intoxication.
- 41.
In the notation of CTT wujūd and salb stand for special cases of the injections i(x) and j(x) – see Sect. 4.2.
- 42.
As explained in the appendix the proof-object of a universal such as (∀x: A) B true is λx. b: (∀x: A) B. Since in our case the function b(x): B (x: A) is actually taʾthīr𝒫(x): [(∀y: 𝒫𝒟) wujūd∨(y) = {𝒫∨¬𝒫} x ⊃ ℋ(y)]∧[(∀z: ¬𝒫𝒟) salb∨(z) = {𝒫∨¬𝒫} x ⊃ ¬ℋ(z)] (x: 𝒫𝒟∨¬𝒫𝒟), the proof-object of the universal is λx. taʾthīr𝒫. Note that λx. taʾthīr𝒫(x) and taʾthīr𝒫(x) are entities of different types: while the latter is a function (i.e. a dependent object); we may conceive λx. taʾthīr𝒫(x) as an (independent) individual that codes this function (see the appendix).
- 43.
Within the language of CTT taʾthīr𝒫 stands for the function taʾthīr𝒫(x): {[(∀y: 𝒫𝒟) wujūd∨(y) = {𝒫𝓓∨¬𝒫𝓓} x ⊃ ℋ(y)] ∧ [(∀z: ¬𝒫𝓓) salb∨(z) = {𝒫𝓓∨¬𝒫𝓓} x ⊃ ¬ℋ(z)]} (x: 𝒫𝓓∨¬𝒫𝓓).
- 44.
While in the framework of CTT encoding of a process is a way to understand the role of a lambda operator on a function (see the appendix), in the dialogical framework the encoding is understood as a recapitulation or reprise of the moves constituting plays won by P (see strategic reason in the chapter IV of the present book).
- 45.
Dually, if grape-juice in a state that does not induce intoxication is the element that makes the (right side of the) disjunction true, then this substance is exempted from the interdiction.
- 46.
More generally, if c: (∀x: 𝒫)ℋ(x), b(x): ℋ(x) (x:𝒫) and a: 𝒫; the application ap of c to a (i.e. ap(c,a), amounts to applying the lambda abstract of the function b(x) to a (recall that the proof-object of a universal involving the function b(x) is (or must be equal to) the lambda-abstract of that function); that is, ap(c,a) is equal to the value of b(a) – see the appendix.
- 47.
Sundholm (2013, p. 17).
- 48.
“The solution […], it seems to me now, comes naturally out of this dialogical analysis (not in bold in the original text). […] the premisses here should not be assumed to be known in the qualified sense, that is, to be demonstrated, but we should simply assume that they have been asserted, which is to say that others have taken responsibility for them, and then the question for me is whether I can take responsibility for the conclusion. So, the assumption is merely that they have been asserted, not that they have been demonstrated. That seems to me to be the appropriate definition of epistemic assumption in Sundholm ’s sense.” Transcription by Ansten Klev of Martin-Löf’s talk in May 2015.
- 49.
Aristotle (Barnes, Trans. & Ed. (1984)).
- 50.
- 51.
See our section on material dialogues in part II.
- 52.
P. Lorenzen and K. Lorenz (1978).
- 53.
- 54.
- 55.
- 56.
Young (2017, p. 183).
- 57.
Miller (1984, p. 211).
- 58.
Miller (1984, pp. 219–20).
- 59.
Young (2017, p. 15).
- 60.
K. Lorenz (2000, pp. 87–106).
- 61.
J. Peregrin (2014, pp. 228–9).
- 62.
In the context of jadal this move is called “ta’līl” by the means of which the Proponent asserts that a given property determines the factor occasioning the relevant ruling. See Young (2017, pp. 24–25, p. 568, p. 624).
- 63.
Recall our remark in Sect. 2.3.1.1 concerning the fact that identifying an occasioning factor amounts to characterizing it as a general law.
- 64.
- 65.
Or P farʿ: 𝒫∗
- 66.
Young (2017, p. 151).
- 67.
Our formulation is slightly more general than that of Young (2017, p. 166), since according to our setting the root-case that triggers the counterargument does not need to be the same as that chosen by the Proponent. The point is that if we follow Young’s restriction to only one root-case, then it all comes down to accepting or not that the ruling of the thesis applies to that root-case. This assumes that the Proponent either misinterprets the sources or misses some relevant evidence that can be found in those sources. Our formulation might be closer to a specific form of reversal called reversal and oppositeness (al-qalb wa-al-ʿaks) – see Young (2017, pp. 166–167).
- 68.
Young (2017, pp. 158–9).
- 69.
Young (2017, pp. 150–64).
- 70.
Young (2017, p. 159, p. 166).
- 71.
Young (2017, p. 170).
- 72.
In fact expressions such as { y: 𝒫𝒟| 𝒫*(y), that can ge glossed as Those y instantiating 𝒫𝒟, are such that they enjoy 𝒫*(y) (e.g. those transaction-contracts, where the beneficiary has no access to the goods specified by those contracts), have either a compound understanding or a divided understanding. The compound understanding, requires that if we isolate one of the components it always carries information about the second component – technically speaking the way to isolate one component is to use the function left- and right-projection. In the divided understanding one can isolate one component that does not carry information about the other – technically speaking it amounts to the use of injections. One of the difficulties of kasr is that the Opponent seems to understand the construction in its divided sense, but the Proponent might insist that his claim assumes a compound sense.
- 73.
Young (2017, p. 174). Young pointed out in a personal email to the authors tht al-Juwaynī in the Kāfiya (1979, p. 211-213), pays special attention to arguments against the validity of kasr. The contemporary author‘Abd al-Karīm b. ‘Ālī b. Muḥammad al-Namla provided in his work al-Muhadhdhab fī ‘Ilm Uṣūl al-Fiqh al-Muqārin (1999, pp 2287-2288) the following reconstruction of kasr. The Opponent starts by presenting a counterexample to the claim that the compound property at stake is inefficient for the relevant juridical ruling. The Proponent defends his claim by breaking the component and claim that the other part is the efficient one. If he succeds he justified the main claim if not it is the antagonist’s objection the one that is justified.
- 74.
Young (2017, pp. 158–159).
- 75.
Hallaq (1985, pp. 88–89).
- 76.
Cf. Aristotle, Pr. An. 69a1; Bartha (2010, pp. 36–40).
- 77.
Shīrāzī (1987, p. 112).
- 78.
Young (2017, p. 159).
- 79.
- 80.
Miller (1984, p. 119).
- 81.
See Young (2017, pp. 166–7).
- 82.
In the following sections we present only a simplified and adapted form of the Dialogical Framework, called Immanent Reasoning – see Rahman/McConaughey /Klev /Clerbout (2018). For a more complete presentation see the chapter IV of the present book. The main original papers are collected in Lorenzen/Lorenz (1978) – see too Lorenz (2010a,b), Felscher (1985), Krabbe (2006). For an account of recent developments see Rahman/Keiff (2005), Keiff (2009), Rahman/Tulenheimo (2009), Rückert (2011), Clerbout (2014a,b). The most recent work links dialogical logic and Constructive Type Theory, see Clerbout/Rahman (2015) and Rahman/Clerbout/Redmond (2017).
- 83.
Cf. Rahman/Rückert (2001, pp. 113–116).
- 84.
See our comments on the doubts on the validity of this rule in 4.2.3.
- 85.
- 86.
This last clause is known as the Last Duty First condition, and is the clause which makes dialogical games suitable for Intuitionistic Logic, hence the name of this rule.
- 87.
This, rule, as extensively discussed in Sect. 2.3.2.1 is one of the most salient characteristics of dialogical logic. In previous literature on dialogical logic this rule has been called the copy-cat rule or Socratic rule and it introduces a kind of asymmetry in the distribution of roles. Clearly, if the ultimate grounds of a dialogical thesis are elementary statements and if this is implemented by the use of the copy-cat rule, then the development of a dialogue is in this sense necessarily asymmetric. Indeed, if both contenders were restricted by the copy-cat rule no elementary statement can ever be uttered. Thus, we implement the copy-cat rule by designating one player, called the Proponent, whose utterances of elementary statements are restricted by this rule. It is the win of the Proponent that provides the dialogical notion of validity.
- 88.
Duthil-Novaes (2007) interprets Obligationes as games of consistency-checking. This is definetely not the aim of qiyās.
- 89.
Hallaq (1987a).
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Rahman, S., Iqbal, M., Soufi, Y. (2019). Qiyās al-ʿIlla: al-Shīrāzī’s System of Correlational Inferences of the Occasioning Factor. In: Inferences by Parallel Reasoning in Islamic Jurisprudence. Logic, Argumentation & Reasoning, vol 19. Springer, Cham. https://doi.org/10.1007/978-3-030-22382-3_2
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