Whether or not non-Muslims are subject to Sharīʿa responsibilities has been treated in various contexts in works of uṣul al-fiqh and fiqh. Across schools of thought the prevalent view has been that non-Muslim are indeed subject to sharia responsibilities before God. This position is endorsed by Imāmī Shīʿa legal theorists such as Sharīf alMurtaḍā (d. 436/1044), Shaykh al-Ṭūsī (d. 460/1067), and ʿAllāma al-Ḥillī (d. 460/1067). Each of these considered the question within the context of the linguistic discussions of uṣul al-fiqh framed within enquiries regarding the scope of the imperative. Does the imperative include the non-Muslim and the slave as it includes the Muslim and the free person? This paper will examine how this position has been nuanced by some modern Shīʿī Uṣūlī’s, in response to an Akhbārī rejections of the prevalent view, by distinguishing between universal moral responsibilities applicable to all and particular Sharīʿa addresses only incumbent upon believers. The paper will further point to some contemporary implications of this distinction for our understanding of the nature and practice of Sharīʿa in plural contexts.

The main question addressed in this paper is: “Can jurists rely on moral judgments to disregard or qualify scriptural evidence?” The standard answer to this question among later uṣūlī scholars is yes, provided that the moral judgment in question is “conclusive”. Otherwise, the scriptural evidence will retain its validity. In applying this principle to particular cases, such as child marriage, jurists working within this paradigm split into two groups: a minority who claim that the moral judgment in question is certain, and accordingly modify or set aside the conflicting scriptural evidence; and a majority who believe that the moral judgment in question is not certain, and consequently resolve the conflict in favour of scriptural evidence. Regarding the level of justification one can legitimately claim for moral judgments, the second group are correct in most cases. Therefore, granting the dominant paradigm, the path of moral reforms in jurisprudence is effectively closed. However, one can ask whether such a stringent condition as certainty for the permissibility of using moral judgments in jurisprudential arguments is rationally defensible. In this paper, I try to show that such a condition is indefensible, and hence the dominant paradigm lacks rational credibility. Based on the alternative paradigm that I propose and defend, the conflict we face here is of an epistemological and hermeneutical nature. Thus, the appropriate solution to this conflict is to weigh the evidence we have in favour of moral judgments against conflicting scriptural evidence and prioritise the stronger, i.e., the evidence with a higher probability of being true. Within this paradigm, for moral judgments to take precedence over opposing scriptural evidence, it is sufficient that the moral judgment has stronger rational support by virtue of being more probable than the conflicting scriptural evidence. This paradigm provides a rational basis for moral reforms in jurisprudence.

The linguistic principle of absoluteness leads to the absolutisation of a regulation in terms of the unrestricted scope of the applicability of its referent. Thus, the statement “respect the scholar” due to lack of qualifiers will yield the meaning of obligation as opposed to encouragement from the form of the imperative “respect” and this respect will be applicable to every type of scholar by virtue of the unqualified clause the “scholar”. The outcome is the obligation of respect to every scholar regardless of the scholar’s denomination, field of expertise and piety. The principle of absoluteness is utilised as a legal hermeneutical tool for the interpretation of evidences across the chapters of jurisprudence. A fundamental assumption in the principle of absoluteness is that the lawgiver is in a position to explicate his intention fully including all possible qualifications pertinent to the regulation and scope of its application in relation to the subject. Thus, by not restricting qualifiable terms the implication is that there are no qualifications to the regulation and to its scope of application. Having stated this the unqualified clause can be qualified at any point within the timeframe of the lawgiver which is a period of over two centuries. Thus, an absolutised verse of the Quran due to lack of qualifications within the Quran may be qualified and restricted by the statements of the Prophet or anyone of the subsequent twelve Imams. Analysing the phenomena of post-absolutised restrictions demonstrates rationally that the absolutised regulation was not absolute in essence from the outset but yet was treated as an absolute prior to its qualification since the qualifications can be delayed for up to a couple of centuries. This phenomenon reflects on the fallibilism of the absolutised regulations. Additionally, it shows that the issuance of unqualified regulations was resorted to at a pragmatic level and on utilitarian basis. The regulations are designed to secure their values in an overall manner and for the majority of individuals. Existentially it is difficult to conceive of absolute regulations; all regulations are bound by their existential contexts. In light of the above it is argued that: 1. existentially the lawgiver cannot be in a position to explicate all the qualifications beyond the lawgiver’s immediate context with a view to catering for the majority. 2. since the regulations are value-bearing the qualifications can be conceived through refined human learning and experience in every field of life. 3. existence being dynamic can effect change in relations of things to human beings. Such changes can qualify originally absolutised regulations and similarly restricted regulations may become absolutised by the same token.