I was rereading portions of Robert Gleave’s pathbreaking Inevitable Doubt, describing the nature of the Akhbari-Usuli divide in Shi’ism by reference to leading late figures involved on each side, Yusuf Bahrani and Muhammad Baqir al-Bihbahani, respectively. One interesting thing occurred to me as I considered something Gleave brings up in the introduction, concerning the extent to which an ignorant person is excused for their ignorance. The Akhbari Bahrani takes the more interesting position, which is that if one is ignorant of an actual ruling that exists in an actual source text, then one is incorrect, and not in an ideal state, but is forgiven for the error. However, if one is ignorant of where the ruling applies, then they are not forgiven, for they could have acted with precaution. The example given is that if a person does not know that a woman has to wait three menstrual periods after her divorce before she can remarry, then he can be forgiven for this. It’s not ideal, he really should move to a place where jurisconsults can inform him of the rulings, but he is forgiven. However, if he knows the rule, and proceeds to marry her, thinking she had gone through three menstrual periods and she had not, then he cannot be forgiven. Because he could have acted out of precaution and not actually married her right away but investigated to make sure he was in compliance. The only precaution you could take if you don’t know a ruling exists is not to do anything at all ever, because there might be a ruling on it, and that is hardly sustainable.
What is most interesting to me is that this is the familiar division, common in any modern legal system, between ignorance of facts and ignorance of law, except that it is entirely backwards. In law, ignorance is almost never forgiven (I didn’t know I was not allowed to rape my wife is not a defense, even if a judge in New Jersey thought otherwise), but ignorance of facts (every single indicator I had from her was what any reasonable person would understand to be consent) is excusable. Even more interesting, the arguments are actually quite similar, to reach the opposite result. The theory is that one can always look up whether or not something is illegal, but one can hardly know the facts in every situation.
Now the discrepancy as to law can be explained as follows. The presumption that one should know the law presumes that there is some reasonable means by which people happen to know what their legal obligations are. The general feeling is that there is in modern legal systems. There are lawyers, there is the internet (now at least), codes have to be published, etc. Where it really is hard to know, exceptions to ignorance of the law is not an excuse do exist–for example, in the arcana of tax law. One could legitimately question whether or not the presumption is as true as the law establishes, but it is fair to say that it is easier to know it, than it might be to know source text rulings of Shi’i Islam. Insert the Usuli notion of jurisconsults, however, and the matter changes entirely. This is why Bihbahani adopts a position which predominates in contemporary Shi’ism–one is not forgiven for failing to know a ruling, because the jurist mujtahid you choose as your source of emulation can tell you. Now if he (and it is always a he) is wrong, then of course you are forgiven for the error. That is closer to modern law, though not quite, mainly because the “inevitable doubt” that Shiism presumes during the occultation of the Twelfth Imam does not exist in a positive legal system. That is, there is no distance between what the lawmakers (legislators, judges, etc) say, and what the law is in a positivist system. In other words, what the jurists say the law is in a positive system IS what the law is. There is no need to forgive the “error” if they are wrong because they are by definition not wrong. The U.S. Constitution grants homosexuals and heterosexuals a right to marry equally. Period. Why? because the Court said so, there is no “error” to be forgiven, as the law is what the lawyers and judges say. Now insert a God who writes the Constitution, the presumptive universe of Shi’i Islam, and of course then there is the possibility of error. In that case, the follower can just use the Supreme Court ruling as guide, and if it turns out to contravene the Will of God, then this falls on the head of the Court, not the lawyer following them. There are numerous consequences to this, too many to mention here, but one might suffice. Jurists frequently use “precautionary obligation” to deal with doubt, in a way that a court would find confounding. A good example is in the prohibition of Shii men to marry non Muslim women in permanent marriages. Most jurists indicate the more probable legal interpretation which is correct is that it would be perfectly permissible to marry a Christian or Jewish woman. But out of precaution, because there is some doubt about that, we Shi’a are obligated not to marry non Muslim women, out of “precaution” and the possibility of sin. The jurist just is not sure of the actual rule to let us do it. That would be unimaginable in a modern court. Just imagine it. “We aren’t sure whether the Equal Protection Clause was meant to cover sexual orientation or not, and the Lawgiver is not clear. Therefore, out of precaution, gays are equal to heterosexuals.” THAT would be an opinion for the ages.
As to the discrepancy on ignorance of facts as between Bahrani and modern law, it’s just as interesting. Bahrani’s point on precaution as to factual application (as opposed to legal interpretation, discussed above) is well taken, but most lawyers would think it almost surely wrong, at least without some sort of limitation on its extent. Certainly I did, this time around, rereading the section. After all, what type of precaution could you undertake to be absolutely sure the woman you wanted to marry had waited three months since her last marriage? You could ask her, and her relatives, and her friends I suppose, but they could all lie. She could produce the two witnesses necessary within Shi’i law for a divorce, and that would be sufficient evidence she was divorced, but not that she didn’t remarry after that divorce, and divorce again within the past three months. You could try to imprison her for three months, and yet, for all you know, Chapo Guzman snuck in and married her. (No witnesses necessary to a valid marriage in Shi’ism).
I think the reason for the discrepancy as to facts lies in the difference between sin on the one hand, and law and punishment, on the other. After all, the answer to how much precaution is necessary might not be terribly relevant if one is speaking of sin. The answer would be, as much as makes you comfortable that you haven’t sinned. Yes there is always the marginal possibility that you have, but use enough precaution, and it’s terribly unlikely. At some point, the believer is comfortable that they have not sinned, and that’s enough. Hence Shi’is take radically different views on the investigations they undertake to determine if meat is correctly ritually slaughtered or not. Some just take the person’s word for it giving it to them, and some won’t eat an ounce of meat they didn’t slaughter themselves. It’s still possible they slaughtered it, butchered it, put in their refrigerator, and their wife who is a surreptitious worshiper of Satan switched it out for similarly looking pork. But, really?
Put punishment in the mix, and things change. One is more hesitant to impose it. Call it a sin if the Satan worshiping wife switches the halal meat with pork and the unknowing husband eats it. But punish him for it? Unlikely. Hence Bahrani is not talking about punishment for adultery if you are ignorant of the wife having waited for three months. Almost surely that would fall within the confines of what is known as shubha, or doubt, in Islamic law, justifying not applying the penalty. (Want more on that? Read Intisar Rabb’s fascinating book, Doubt in Islamic Law, no time for that here). He is talking of sin, instead.
And of course we do at times in US law impose punishment even for ignorance of facts, but it’s at the margins. Statutory rape is an example. Be careful. Satisfy yourself she is of age. because if you are wrong, and I don’t care what kind of “precaution” you took, you could have scanned her passport for all I care, you go down if she’s underage. So we do this, but it is uncommon. (Traffic violations I suppose are another example, but that’s just to avoid everyone going to court and saying their speedometer is broken, to avoid a small fine. Completely different stakes). It’s just a different matter when the issue is whether or not you have displeased God or whether or not the state should take steps to punish you for what you’ve done.
So what’s the takeaway? Whether it’s personal status, or finance, or anything else, it’s a mistake to try to replicate juristic rules into law, as lawmakers in Iraq try repeatedly to do. The purposes are different, the effects different, the results different, and the expectations different. It just does not work.