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B14 · باب وجوه الاحتجاج بما ليس بحجة مطلقا · Arguments that are not proof without qualification: "no proof", istiṣḥāb, conflict of likenesses, concomitance, arguing from absence, and elimination (v2/215–232)

1. B14.01 · الاحتجاج بلا دليل · "There is no proof" binds no one: in God's rights it only defends, it never establishes; for our scholars, in people's rights it does not even defend (v2/215–219)
2. B14.02 · الدليل المثبت لا يوجب البقاء · al-Shāfiʿī: a ruling established by its proof continues by that proof, so "no proof it ended" binds; our scholars: the establishing proof says nothing about continuance, which needs no proof (v2/219–223)
3. B14.03 · استصحاب الحال · Istiṣḥāb has four kinds: with certain knowledge that nothing changed it, sound; after searching, an excuse and a defence only; before searching, ignorance; to establish a new ruling, pure error (v2/223–226)
4. B14.04 · تعارض الأشباه والاطراد · "The likenesses conflict" and bare concomitance are "no proof" in disguise (v2/226–228)
5. B14.05 · الطرديات الفاسدة · Four kinds of empty reasoning: plainly absurd; by adding a feature to the root; by a disputed feature; by absence of a feature (v2/228–231)
6. B14.06 · الأوصاف محصورة · Elimination ("the features are limited, all but one are void, so it is the cause") proves nothing; al-Jaṣṣāṣ allowed it (v2/231–232)

B14.01 · الاحتجاج بلا دليل · "There is no proof" binds no one: in God's rights it only defends, it never establishes; for our scholars, in people's rights it does not even defend (v2/215–219)

• Who: four views. (1) "No proof" is proof for the denier against his opponent, not for the affirmer. (2) It defends, it does not establish. (3) Implied by al-Shāfiʿī's cases: it defends to keep what was established by its proof, not to establish what is not known. (4) «والذى دلّ عَلَيْهِ مسَائِل أَصْحَابنَا» (v2/215) — "what our colleagues' cases imply": this holds in God's rights; in people's rights it is proof for neither party, to defend or to establish, to keep or to begin. (v2/215–216)
• View 1's case: God taught it against shirk ("he has no proof for it", Q 23:117); the idolaters only said "there is no proof of his prophethood", and he then brought the miracles; the burden of proof is on the claimant, since the denier holds to the base state; "say: I do not find in what is revealed to me anything forbidden" (Q 6:145) against the idolaters' animal taboos. (v2/216)
• Reply: it fits none of the salaf's reasoning and ends in ignorance: "no proof with you, or with anyone?" Your opponent claims a proof, and your "I have none" is a confession of ignorance and failure to search; even if excused, "your excuse is no proof against another", as those whom an abrogating verse had not reached were excused in following the old ruling but could not bind others with it. (v2/216–217)
• Objection → Reply: "Abū Ḥanīfa said there is no fifth on ambergris because no report came." Reply: that was his own excuse, not an argument against others; for that he gave an effective cause, as Muḥammad reports: pearls and ambergris are like fish, and fish like water: the fifth is for spoils taken from the enemy's hand by force, and the sea was never in the enemy's hand. And qiyās requires no fifth on anything; the fifth was imposed on some property by report, so where no report came the base qiyās holds: that is not arguing from "no proof". (v2/217)
• More replies: the claimant of "no proof" affirms his own belief and so owes a proof, while by his own claim no proof is owed by his opponent, who denies that belief; he says it with knowledge (then he has a proof) or without (forbidden, Q 7:33; 10:39). (v2/217) From here the Ilmiyya witness (v2/218–219; paraphrase only): Q 2:111 teaches asking the denier for proof. In a lawsuit the denial binds nothing: the defendant is brought again, gives surety, takes the oath; the defendant's word counts only because of an outward proof (possession, a free dhimma). People differ in knowledge (Q 12:76; 17:85), so only God's "no proof" is certain, as in Q 23:117 and 6:145; the unbelievers' denial of prophethood was a display of ignorance. View 2: the denier's "no proof" and the affirmer's claim are both uncertain, so it only defends. (v2/218–219)

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B14.02 · الدليل المثبت لا يوجب البقاء · al-Shāfiʿī: a ruling established by its proof continues by that proof, so "no proof it ended" binds; our scholars: the establishing proof says nothing about continuance, which needs no proof (v2/219–223)

• His case (v2/219–220; the opening is on the Ilmiyya-only v2/219): what can last (ownership by purchase, lawfulness by marriage, prohibition by triple divorce) stays by its proof until something removes it, like a general text before its specification; so "no proof establishes it" for what is absent, or "no proof removes it" for what is established, leans on a proof and binds. Hence settlement on denial is void (the denier's free dhimma or possession is proven, so the payment is a bribe), while one who testified to a slave's freedom and then buys him owes the price. (v2/220)
• Position: «وعلماؤنا قَالُوا الدَّلِيل الْمُثبت للْحكم لَا يكون مُوجبا بَقَاء الحكم بِوَجْه من الْوُجُوه» (v2/220) — "Our scholars said: the proof that establishes a ruling in no way requires its continuance"; it continues because continuance needs no proof. So a claim that it continues is as uncertain as a claim that it arose; unlike a general text, the proof does not address future times, so its removal is abrogation, not specification. (v2/220–221) → B11.01
• Furūʿ test: settlement on denial is valid (both claims are uncertain; a stranger's settlement is agreed valid); the witness to freedom who buys owes the price, and the slave is freed by his own claim, without walāʾ to him. The person of unknown status is free outwardly, but one who injures him and claims he is a slave does not owe a free man's damages until proof; likewise the slanderer who claims to be a slave, the one who cuts a hand, the witness whose freedom is denied (al-Shāfiʿī differs in all these unknown-status cases). The pre-emptor whose ownership of the adjacent house is denied gets no pre-emption without proof (al-Shāfiʿī: he does). The master says "I entered" in "if I do not enter today, you are free": his word. The missing person inherits from no one and is inherited by no one. (v2/221–223)
• Objection → Reply: "his word binds only where what it keeps is his aim" (the slave's aim is freedom, not the master's not entering; the missing man's claimant does not aim at his life; but the denier aims at his free dhimma, the unknown-status man at his freedom). Reply: no difference: «دَعْوَى الْمُنكر فَسَاد الصُّلْح غير مَقْصُود لَهُ وَلَكِن يَتَرَتَّب عَلَيْهِ مَا هُوَ الْمَقْصُود لَهُ» (v2/223) — "the denier's claim that the settlement is void is not his aim, but what he aims at follows from it", namely escape from paying what he agreed; just as the slave's claim that the master did not enter serves his aim, his freedom. So the aim-based distinction separates nothing. (v2/223)

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B14.03 · استصحاب الحال · Istiṣḥāb has four kinds: with certain knowledge that nothing changed it, sound; after searching, an excuse and a defence only; before searching, ignorance; to establish a new ruling, pure error (v2/223–226)

• Who: ⚑ some of our colleagues argue by it: no zakāt on a child's property ("the base is no duty"); the camel after 120 ("two ḥiqqas were owed by text and consensus, so keep it"). «وَهَذَا النَّوْع من التَّعْلِيل بَاطِل» (v2/223) — "this kind of reasoning is void": the proof of non-existence does not require its continuance: not having bought does not bar buying later, and a purchase that gives ownership does not bar its loss by a later cause. The camel case shows it: for the opponent the camel beyond 120 ends the exemption band of the two ḥiqqas and completes the nisāb of three bint labūns; «وَعِنْدنَا هُوَ ابْتِدَاء الْعَفو لنصاب آخر» (v2/224) — "for us it begins the exemption band of another nisāb", and the text imposing two ḥiqqas at 120 says nothing about either reading, so citing it for two ḥiqqas after the increase is arguing without proof. (v2/223–224)
• Four kinds: (1) with certain knowledge that no changing proof exists, by revelation or the senses: sound (Q 6:145); (2) after searching as far as one can: good to excuse oneself and to defend, not to bind another, who may say "I have a proof"; (3) before searching: ignorance, not even an excuse when searching was possible (the dhimmī who converts in Islamic lands must make up the prayers; the convert in enemy lands need not; one who, in doubt about the qibla, prays in a direction without searching: «فَإِنَّهُ لَا تجزيه صلَاته مَا لم يعلم أَنه أصَاب» (v2/225) — "his prayer does not suffice unless he knows he was right", whereas one who searched and prayed has a valid prayer even if it turns out he was wrong); (4) to establish a ruling from the start: "pure error, and misguidance in one who does it deliberately" (khaṭaʾ maḥḍ, ḍalāl; printed in parentheses in the Afghānī text, so paraphrased, not quoted), since istiṣḥāb means holding a ruling that already stood. (v2/224–225)
• ⚑ Furūʿ test: the missing person's life keeps his own property but does not give him his relative's estate. Some of al-Shāfiʿī's followers let the heir keep "the deceased's ownership"; we: for the heir it is new ownership. So Abū Ḥanīfa and Muḥammad: witnesses that "it was his father's" do not prove the heir's claim (they would, if the owner himself claimed); Abū Yūsuf's later view: they do, since inheritance is succession (return for defect, deception). (v2/225–226)

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B14.04 · تعارض الأشباه والاطراد · "The likenesses conflict" and bare concomitance are "no proof" in disguise (v2/226–228)

• Conflict of likenesses: ⚑ Zufar: washing the elbows is not obligatory [the school: it is], since some limits are included and some not, and doubt does not establish a duty. Reply: the doubt is a new thing needing proof; the "proof" is the list of agreed limits; do you know which kind this is? If so, do not doubt; if not, you confess ignorance, which is no proof against one who says he has the proof. (v2/226–227)
• Concomitance (iṭṭirād), in existence or in existence and absence: «فَإِنَّهُ احتجاج بِلَا دَلِيل فِي الْحَقِيقَة» (v2/227) — "it is in truth arguing without proof". Arguing from a feature's freedom from counter-cases is like a witness testifying often; the opponent can always say "I know another root that breaks it". It is above bare "no proof", since the feature is outwardly fit (ṣāliḥ) and may become proof if its effect appears, but still does not establish a ruling. Objection → Reply: "texts bind before the abrogator appears." After the Prophet's death there is no possibility of abrogation; in his life a text established a ruling, but did not prove its continuance against abrogation. (v2/227)

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B14.05 · الطرديات الفاسدة · Four kinds of empty reasoning: plainly absurd; by adding a feature to the root; by a disputed feature; by absence of a feature (v2/228–231)

• Plainly absurd: some of al-Shāfiʿī's followers: the Fātiḥa is a pillar because prayer has a "number seven" like ṭawāf; three verses are "one of the numbers of the wiping period", so the obligatory recitation is not met by them, like one verse; reported from some: intercourse is an act sometimes free and sometimes restricted, so it does not effect return (rajʿa), like killing; ⚑ reported from some of our colleagues: wuḍūʾ needs no intention "like cutting for theft" (the school agrees on the ruling; Sarakhsī rejects this argument for it as plainly absurd). The salaf's causes always had suitability or effect: one of them might reach one or two analogies after long thought, while a later scholar produces fifty such in one sitting. (v2/228)
• Adding a feature: some of al-Shāfiʿī's followers: touching the penis breaks wuḍūʾ "as touching it while urinating"; freeing a mukātab for expiation is invalid "as when part of the price was paid"; buying one's father with intent of expiation fails "as when freedom was sworn on owning him". The added feature is itself the difference. (v2/228–229)
• Disputed feature: "a brother is not freed on ownership, since his freedom counts as expiation, like a cousin's" (for us a relative's freedom counts); an immediately payable kitāba "that does not bar expiation is void, like kitāba for his value" (for us freeing a mukātab counts); or disputed in the root: some of al-Shāfiʿī's followers deny expiation for breaking the fast by eating or drinking, «إِنَّه إفطار بالمطعوم فَلَا يُوجب الْكَفَّارَة كَمَا لَو كَانَ فِي يَوْم أبْصر الْهلَال وَحده ورد الإِمَام شَهَادَته» (v2/229) — "it is breaking the fast by food, so it brings no expiation, as on the day he alone saw the crescent and the imam rejected his testimony", where the dispute is over the root case itself. (v2/229)
• Absence of a feature: al-Shāfiʿī: marriage is not proved by women with men "since it is not property"; the brother is not freed "since there is no part-whole relation"; the finally divorced woman is not divorced again "since there is no marriage"; salam of Marw cloth for Marw cloth is valid "since the two counter-values do not combine food and price". «وَهَذَا فَاسد لِأَنَّهُ اسْتِدْلَال بِعَدَمِ وصف» (v2/230) — "this is unsound, being inference from the absence of a feature": absence causes nothing. (v2/229–230)
• Objection → Reply: "your books are full of it": Muḥammad (marital ownership not guaranteed on destruction, "not property"; increase not guaranteed on usurpation, "he did not usurp the child"); Abū Ḥanīfa (land not guaranteed, "he did not move it"; no fifth, "the Muslims did not ride against it"; no expiation for a pebble, "not food"; the grandfather's fiṭr for a grandchild). Reply: these are not analogies but inferences where the cause is one, fixed by consensus (usurpation is the only cause of its liability; destroying property the only cause of like-for-like liability; spoils the only source of the fifth); or they excuse the speaker. The marriage argument fails: without "property" it may still be proved by another feature (it is of what is proved despite doubts, unlike ḥudūd and qiṣāṣ). (v2/230–231)

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B14.06 · الأوصاف محصورة · Elimination ("the features are limited, all but one are void, so it is the cause") proves nothing; al-Jaṣṣāṣ allowed it (v2/231–232)

• Who: some ṭard people; ⚑ al-Jaṣṣāṣ allowed «تَصْحِيح الْوَصْف لِلْعِلَّةِ بِهَذَا الطَّرِيق» (v2/231) — "validating a feature as the cause this way". A friend of Sarakhsī argued it hard: like refuting all views on a disputed child but one (the physiognomist, lots, suspension, so descent from both), or a man who said "one of you is triply divorced" and then had intercourse with three: the fourth is the one. (v2/231)
• Position: «وَعِنْدِي أَن هَذَا غلط لَا نجوز القَوْل بِهِ» (v2/231) — "To me this is an error; we do not allow holding it", though it is a kind of argument by proof. To use it one must first treat all features as equally fit, and then the proof that voids some voids the rest ("treat Zayd and ʿAmr alike; give Zayd a dirham"). To escape, one must show the feature's effect or suitability anyway. Otherwise the feature rests only on "no proof of its failure"; and refuting the opponent is defence, not proof of one's own claim. And if a feature could be established this way, so could a ruling without the feature ("no proof shows this ruling is void"). Some legal texts are not caused at all, which is how this differs from rational proofs. (v2/231–232) → B13c.01
• [Editorial] Debate note: B14 is a catalogue of moves an opponent may make that Sarakhsī says bind no one: "there is no proof", istiṣḥāb to establish a ruling, "the cases conflict", "no counter-case exists", "it lacks feature X", and elimination. A debater can name the move and cite the node.

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