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B16 · باب الترجيح · Preference: what it is, its four grounds, resolving conflicting grounds, and four unsound kinds (v2/249–265)

1. B16.01 · معنى الترجيح · Preference is an added quality, not an added proof: what can ground a ruling on its own cannot tip the balance (v2/249–252)
2. B16.02 · وجوه الترجيح · Four grounds of preference: stronger effect, firmer hold on the ruling, more roots, and the ruling's absence with the cause's absence (the weakest) (v2/253–262)
3. B16.03 · المخلص من تعارض الترجيح · When grounds of preference conflict, a ground in the thing itself beats a ground in its state (v2/262–264)
4. B16.04 · الترجيح الفاسد · Four unsound kinds: by another qiyās (or by a report or verse), by more likenesses, by wider scope, by fewer features (v2/264–265)

B16.01 · معنى الترجيح · Preference is an added quality, not an added proof: what can ground a ruling on its own cannot tip the balance (v2/249–252)

• Meaning: in language, showing extra weight on one side of a balance «وَصفا لَا أصلا» (v2/249) — "as a quality, not as substance": the grain that tips ten dirhams, not an extra dirham, which is a gift in its own right (the Prophet told the weigher: "weigh and tip the scale; so we prophets weigh"). (v2/249–250)
• Position: «إِن مَا يصلح عِلّة للْحكم ابْتِدَاء لَا يصلح للترجيح بِهِ» (v2/250) — "what is fit to be a cause of the ruling on its own is not fit for preference"; preference is only by what cannot itself cause the ruling. (v2/250)
• Furūʿ test: four witnesses do not outweigh two, and even one extra witness does not, «لِأَنَّهُ من جنس مَا تقوم بِهِ الْحجَّة أصلا» (v2/250) — "since it is of the kind that constitutes the proof itself"; but two upright ones outweigh two unexamined (mastūr) ones, and a claim already judged (in descent or marriage) outweighs one not judged; two causes do not outweigh one, but stronger effect does; a report is not outweighed by another report or by qiyās, but the mashhūr outweighs the shādhdh by its many narrators, since that strengthens its link to the Prophet, and a narrator's fiqh and precision do likewise; a verse is preferred by being explicit (mufassar) over an interpreted one, not by another verse. One wound vs ten: the blood-money is shared equally; but the neck-cutter, not the hand-cutter, is the killer. Pre-emption: the partner in the thing itself before the partner in its rights, then the neighbour; neighbouring on three sides does not beat one side; a small share equals a large one. (v2/250–251)
• Who: al-Shāfiʿī agrees the large share does not exclude the small, but divides pre-emption by the size of shares, like the fruits of shared property or goods bought for unequal prices. Sarakhsī: «وَهَذَا غلط مِنْهُ» (v2/252) — "this is his error": it divides the ruling by the cause, or builds the cause on the ruling. (v2/251–252)
• Furūʿ test: the Companions agreed that of two cousins, one also the husband, the husband takes a half and the rest is shared: marriage is another cause and does not strengthen kinship. Most Companions: of two cousins, one also a uterine brother, he takes a sixth and then shares equally; Ibn Masʿūd preferred him, like a full brother over a paternal half-brother; we follow the majority, since a uterine tie, which does not itself ground ʿaṣaba, can tip only between ties of the same kind and rank (two brothers). (v2/252)

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B16.02 · وجوه الترجيح · Four grounds of preference: stronger effect, firmer hold on the ruling, more roots, and the ruling's absence with the cause's absence (the weakest) (v2/253–262)

• Position: «أَحدهَا قُوَّة الْأَثر وَالثَّانِي قُوَّة الثَّبَات على الحكم الْمَشْهُود بِهِ وَالثَّالِث كَثْرَة الْأُصُول وَالرَّابِع عدم الحكم عِنْد عدم الْعلَّة» (v2/253) — "first, strength of effect; second, firmness in holding to the ruling it testifies to; third, many roots; fourth, the ruling's absence when the cause is absent." (v2/253)
• Strength of effect: effect is what made the feature a proof, so more effect makes a stronger proof: like istiḥsān over qiyās, or a report strengthened by fame and a narrator's fiqh. Objection → Reply: "witnesses are not preferred by greater uprightness." Reply: uprightness has no measurable grades; effect shows its strength when set against another. (v2/253)
  • al-Shāfiʿī: a man able to marry a free woman may not marry a slave woman, "since he would enslave part of himself (his child) without need", «كَمَا لَو كَانَ تَحْتَهُ حرَّة» (v2/253) — "as if he already had a free wife"; he supports the effect by likening enslavement to killing (the imam chooses between killing and enslaving captives, and as killing one's child is forbidden, so is enslaving him without need); we: what a Muslim slave may marry, a free man may, since slavery halves the lawful and the slave is the free man's equal in the half left (witnesses and ʿidda apply to both; formal proposal and naming a dower to neither); slavery is a deficiency, so it cannot widen the lawful; the Prophet's honour was a wider lawful; and letting seed go to waste (ʿazl with the wife's consent) is worse than exposing it to slavery. So a free man may marry a slave woman on top of another, and a slave may not marry one on top of a free wife. (v2/253–254)
  • The scriptuary slave woman: his "slave and unbeliever, like a Magian" (two prohibiting features compound; marrying a slave woman is a necessity, met by a Muslim one); ours: "a religion whose free women a Muslim may marry, so its slave women too, like Islam": slavery halves by number on the man's side and by states on hers; the scriptuary slave woman is lawful by ownership, so by marriage too; two defects from different directions do not compound, and adding cause to cause adds no strength; and her marriage is not by necessity, as the slave's is not. (v2/254–256)
  • Conversion of one spouse that produces a religious difference barring a new marriage (as when the wife becomes Muslim and the husband stays an unbeliever): al-Shāfiʿī: "a new difference of religion, like apostasy", since in continuation the two are equal «إِذا كَانَ على وَجه يمْنَع ابْتِدَاء النِّكَاح» (v2/256) — "when it is such as to bar contracting the marriage anew": before consummation separation is immediate, after it at the end of the ʿidda. We: Islam protects ownership and cannot remove it, and the other's unbelief was there already, so separation is by the qāḍī after offering Islam, as in liʿān, impotence and īlāʾ (inability to keep her decently); apostasy is not made for separation but negates the lawful, which is an honour, so it separates at once, consummated or not; joint apostasy keeps the marriage by the Companions' consensus, against qiyās (continuation needs only a benefit, and their return to Islam is hoped for). «لِأَن اعْتِبَار الْبَقَاء بِالِابْتِدَاءِ فِي أصُول الشَّرْع ضَعِيف جدا» (v2/256) — "for judging continuation by commencement is very weak in the roots of the law". (v2/256–257)
  • Number of divorces: al-Shāfiʿī: by the husband's status (he is the owner, like the number of wives); we: by the wife's (divorce disposes of marital ownership, which is sized by her lawfulness; like manumitting one slave or two; the division of nights, ʿidda and return follow her). The head-wipe (tripling it is not sunna, "a wiping", over the opponent's "a pillar, so tripling it is sunna": rinsing mouth and nose are repeated and not pillars). The Ramaḍān intention ("a determinate fast", ṣawm ʿayn, over "an obligatory fast"). (v2/257–258)
• Firmness of hold: the ruling a cause testifies to rests at root on a text or consensus, so the feature that shows more firmness when tested against the roots (carrying its ruling wherever it recurs) prevails: every kind of wiping (tayammum, khuffs, socks for those who allow it, splints) drops repetition as a sunna, while pillars in prayer are perfected, not repeated; determinacy (ʿayniyya) drops the specifying intention in zakāt given wholly to the poor, ḥajj with an unqualified intention, faith, returning deposits and usurped goods. Usufructs are not liable on destruction, since liability is by likeness (text), and a usufruct is less than a thing; al-Shāfiʿī: they are liable by contract, so by destruction; «ثمَّ هُوَ يزْعم أَن علته أقوى» (v2/259) — "then he claims his cause is firmer", for two reasons: (1) if one side must lose, the wronged should not, and (2) liability wastes only the wrongdoer's attribute (lasting), while no liability wastes the wronged's very value, and an attribute is below the root. Sarakhsī replies that firmness lies with our view: requiring more than was destroyed is injustice that cannot be ascribed to the Law, and not requiring it is only our inability to impose the like where the text requires likeness, deferring the right to the Hereafter; contract liability differs, «فَإِنَّهُ غير مَبْنِيّ على الْمُمَاثلَة بِأَصْل الْوَضع» (v2/260) — "since it is not built on likeness in its basic design" (it seeks profit). Destroying a thing with no like in kind is not a counter-case: what is owed is «مثل الْمُتْلف فِي الْمَالِيَّة شرعا» (v2/260) — "the like of what was destroyed in legal financial value", and small unavoidable differences of value at recovery are overlooked; to (1): the wrongdoer is not wronged but made to give fair measure while his own right stands; to (2): an attribute counts in liability like the root, as a sound hand is not taken for a paralysed one. So marital ownership is not liable on destruction, in testimony to a divorce before consummation, nor the right of retaliation, in testimony to a pardon; blood-money for life and limbs is by text against qiyās, to keep them from being lost. (v2/258–261)
• Many roots: like fame for a report; each of the three kinds can be argued in the same question. (v2/261)
• Absence with absence: «فَهُوَ أَضْعَف وُجُوه التَّرْجِيح» (v2/261) — "it is the weakest ground of preference", though it shows a firm tie: "wiping" drops repetition as a sunna, and without it (the ghusl) repetition is sunna again, while "pillar" is absent in rinsing yet repetition remains. The brother: kinship forbidding marriage frees on ownership, and without it (cousins) there is no freeing; his "neither is freed on owning the other, since each may give the other zakāt" fails: a Muslim may not give a kāfir zakāt, «وَذَلِكَ لَا يدل على أَنه يعْتق أَحدهمَا على صَاحبه إِذا ملكه» (v2/261) — "and that does not show that either is freed when he owns the other". Food for food needs no taking in the session, "thing for thing", and without that (currency, salam capital) it is needed; his "two properties whose excess is forbidden" fails in salam. (v2/261–262)

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B16.03 · المخلص من تعارض الترجيح · When grounds of preference conflict, a ground in the thing itself beats a ground in its state (v2/262–264)

• Position: every created thing has its essence and states that arise on it: «فَإِنَّهُ يرجح الْمَعْنى الَّذِي هُوَ فِي الذَّات على الْمَعْنى الَّذِي هُوَ فِي الْحَال» (v2/262) — "the meaning in the essence is preferred to the meaning in the state", since the essence comes first (like a judgment on veiled witnesses not undone by later upright ones) and states depend on it. (v2/262)
• Furūʿ test: the full brother's son before the paternal uncle (brotherhood in the tie itself vs nearness as a state); the father's uterine sister (ʿamma li-umm) with the mother's full sister: two thirds to the paternal aunt (through the father); full brother before paternal half-brother (same tie, so the state decides); the paternal half-brother's son before the full brother's grandson (same tie, brotherhood; the nearer degree, a state, decides). «وَرُبمَا خَفِي على الشَّافِعِي هَذَا الْحَد فِي بعض الْمسَائِل فَهُوَ مَعْذُور لكَونه خفِيا» (v2/263) — "this limit may have escaped al-Shāfiʿī in some questions, and he is excused, since it is hidden." (v2/262–263)
• Usurpation: our scholars prefer by craft (sewing, cooking, roasting): a usurped beam [both witnesses print ساحة; read ساجة, teak beam, as the contrast with the plot built upon requires] built into a house ends the owner's right, since the usurper's work stands in every respect while the beam is partly consumed; a house built on usurped land yields to the land (both stand, and the building stands on the land). The Ramaḍān fast counts with intention over most of the day (one pillar, mostly accompanied); al-Shāfiʿī's caution in obligations is a state. Abū Ḥanīfa: sale price of camels already zakated starts its own year; money received by gift is joined to the nearer year; profit or growth of one property joins its origin even if farther. (v2/263–264)

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B16.04 · الترجيح الفاسد · Four unsound kinds: by another qiyās (or by a report or verse), by more likenesses, by wider scope, by fewer features (v2/264–265)

• (1) Qiyās by qiyās, like more witnesses; qiyās by a report (the qiyās is left for the report); a report by a verse (the report does not stand against the verse). (2) More likenesses: the brother is like the father in one way (maḥram) and like a cousin in many (retaliation both ways, testimony, zakāt, lawful to each other's wives); roots are witnesses, so counting them fails. (3) Wider scope: "food" covers small and large, "measure" only large; but preference among texts is not by general and specific (and for him the specific rules the general), and general/specific belongs to wording, not causes. (4) Fewer features: "my cause is one (food), genus a condition; yours is two"; a concise text is not preferred over a fuller one, still less a cause. (v2/264–265)
• [Editorial] Debate note: B16's rule "what can cause cannot tip" is the Ḥanafī answer to "we have more witnesses" or "more likenesses"; "our cause is wider" is answered by "general and specific belong to wording, not causes". The furūʿ are the disputes presented here; the preference rules are what a debater uses.

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