Bata, Hashim (2013) Towards the utility of a wider range of evidence in the derivation of Sharīʿa precepts : paradigm shift in contemporary Usūlī epistemology. PhD thesis, University of Warwick.

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Abstract

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.

Item Type:	Thesis (PhD)
Subjects:	K Law [Moys] > KD Religious Systems
Library of Congress Subject Headings (LCSH):	Islamic law -- Philosophy
Official Date:	May 2013
Dates:	Date Event May 2013 Submitted
Institution:	University of Warwick
Theses Department:	School of Law
Thesis Type:	PhD
Publication Status:	Unpublished
Supervisor(s)/Advisor:	Ali, Shaheen Sardar
Extent:	347 leaves.
Language:	eng

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