Section

There are three things to distinguish here.

First: the preponderant conjecture in the mind of the jurist exercising independent judgment.

Second: the conflicting pieces of evidence—which some speculative theologians call “indicators”—where the jurist knows that the evidence giving rise to that conjecture is stronger than the opposing evidence.

Third: there may, in fact, be other evidence supporting the alternative view of which the jurist is unaware. This is what happens in most matters involving independent juristic judgment. A person may hear a text of general application, just as Ibn ʿUmar and others heard that the Prophet, may Allah bless him and grant him peace, forbade cutting leather socks and commanded that no one leave until bidding farewell to the House; or that the Prophet, may Allah bless him and grant him peace, forbade wearing silk. Its apparent wording is general, and this outweighs the presumption that no prohibition applies. They therefore acted upon this stronger evidence, knowing with certainty that the prohibition takes precedence over that presumption.

Yet there may be specific evidence supporting the presumption. Since they were unaware of it, however, they could not abandon what they knew in favour of what they did not know. Thus, they would issue fatwas stating that a menstruating woman must perform the farewell circumambulation and cut her leather socks, and that silk is forbidden in both small and large quantities.