The scope for renewal in Islamic Law

The scope for renewal in Islamic Law

The scope for renewal in Islamic Law

IJ: There are those who see renewal in Islamic Law on the level of a few legal opinions (fatÁwÁ), while there are others who think we need a complete renewal of the very basis of our ijtihÁd. Do you believe that our principles of jurisprudence and ijtihÁd are in need of renewal? And if so, where and how?

KH: I believe that the door of ijtihÁd being open in the school of Ahl al-Bayt does not mean only changing a few legal opinions. Rather, as I explained before, I believe that it is open even on the level of our fundamental beliefs, let alone on the level of fiqh and its principles.

In other words, the view that a particular mujtahid holds is affected by many factors, and from it he approaches the religious texts. For this reason I believe that religious texts in their broadest sense, meaning the QurÞÁn and Sunnah, are able to address all of Man’s needs until the Day of Resurrection, in that this is the seal of the divine codes and there is no divine code after this for us to say that ‘this divine code’s objectives are obsolete and it is no longer able to respond to the exigencies of human existence, therefore we need a new divine code.

What is the philosophy behind renewing the divine codes and sending down so many of them? Simply put, a new code is sent down when the previous one is no longer able to organize human affairs or respond to the questions asked of it. Therefore there is a need to renew the divine code through sending a new prophet. But once we have believed that Islam is the final revelation to mankind, this means that Islam is able to respond to all the demands of human existence until the End of Time. If it was not able to do so, it would have become obsolete and unable to respond to the demands of life, in which case we would need a new divine code, but since this divine code is the final one, there is no new one after it.

Therefore the theological principle which we build upon is that this religious text that is in our possession through its preliminaries, through the QurÞÁn, the Sunnah and the disciplines to which they give rise – and not only fiqh – is that this divine code has the power to answer the problems of human existence and that these religious sciences and this system – like the religious text itself – have the ability to respond to all demands made of it. But is our interpretation of this religious text one or many? The answer is that a thousand years ago we read this text in a particular way, but now we have the right to differ on many issues.

The multiplicity of interpretations

IJ: Do you believe that we can have many interpretations of religion?

KH: Yes, I believe in multiplicity, but based on a firm and proper methodology. I do not agree that every person can come and say: ‘My interpretation is such-and-such.’ No, they must provide the foundations upon which they are interpreting this text, and once we have agreed on those principles, we can form an interpretation based on our own individual readings of the text. For this reason I do believe that there can be many interpretations, but with this condition. For example, ‘multiple interpretations’ has two meanings; sometimes there is an interpretation which completely dissolves the foundations of the creed altogether – and this is not an interpretation, it is a violation of the religious text. For example, someone comes and says: ‘There is no difference between Divine Unity and the Christian Trinity.’ Is this an interpretation or is it a violation of Divine Unity? This certainly isn’t an interpretation!

When we approach the school of Ahl al-Bayt, one of the principles of this school is that there are twelve Imams, that each Imam is infallible, and that the Twelfth Imam is alive. But when someone comes and says: ‘I want to interpret ShiÝism in such a way that there are not twelve Imams, they are not infallible and the Twelfth Imam is not born yet, is this interpretation within the school of thought or outside of it? This interpretation has no connection to the school!

Therefore, you have the right to investigate. One person says that infallibility means this, another says no, that isn’t what infallibility means; it means something else instead. He has the right to argue that the Imam was not charged with setting up a state, and you can say that he was indeed charged with doing so.

There is no problem with these multiple interpretations on condition that such an interpretation does not imply the erasure of the established principles in that field or school of thought.

For example, Imam KhumaynÐ had his theory of wilÁyat al-faqÐh. Someone might come and say: ‘I have a different interpretation of wilÁyat al-faqÐh.’ And the upshot of this interpretation is that there is no such thing, is this an interpretation of wilÁyat al-faqÐh or a refutation of it? Therefore there is a difference between offering an interpretation of a religious text and interpreting it into non-existence! Many modern interpretations are like this; they do not interpret the text, they destroy it. As a result, we must accept that these religious texts differ from all other human texts. I do not want to go too far into the discussion of multiple readings and interpretations but I will make a general reference to this principle so that it is clear to the reader: I believe in the multiplicity of interpretation, but with conditions, standards and methodology. For this reason, when they tell me: ‘Shaykh al-MufÐd had an interpretation of Divine Unity, Resurrection, or Imamate, do you agree with this?’ It is my right as a mujtahid in this field to say: ‘No, I have a different interpretation.’ But this is within the school of Ahl al-Bayt; I am not putting forth an interpretation that goes against this school. So when I put forward an interpretation that means – for example – that the Imams are not infallible, such an interpretation is outside the theory of the Ahl al-Bayt and not a part of it.

This issue is very important; I believe in a multiplicity of interpretations on the basis of particular conditions, fundamentals and criteria that we must pay attention to. We must protect and safeguard the religious text and not interpret it in such a way that we treat a religious text like a secular one; like any other text a person has written. No, never! If this was true, then what would the difference be between the QurÞÁn and any other text? When someone gives an opinion, you can argue with it, but when the QurÞÁn states something, can you say: ‘I have an interpretation for that’ as if you are dealing with any other human text? No, you must preserve the boundaries and the rules of the religious text. And what are these boundaries? That this is a revealed scripture that comes from Allah, it has criteria, rules and immutable principles. All of this must first be safeguarded; only then can you put forward an interpretation of it.

The practical legal manual and obligatory precaution

IJ: Many persons criticise the phenomenon of ‘obligatory precaution’ (iÎtiyÁÔ al-wujÙbÐ) that appears in our practical legal manuals; they see it as restrictive for the ordinary people. What is your view on this issue? How have you deal with it on the level of your own legal opinions and practical legal manual?

KH: I believe that obligatory precaution in our practical legal manuals has a positive aspect and a negative one. Its positive aspect is that the marjaÝ writes in his introduction that instances of obligatory precaution allow you to refer to a scholar other than him. This is not a negative point about the treatise, rather it is positive; because he means to tell you that he cannot arrive at a definitive conclusion on this matter to issue a clear legal opinion on it. For this reason, he allows you to refer to another jurist on this matter. Clearly this is something positive; in principle, there is nothing necessarily bad about obligatory precaution. But a practical manual should not be filled from cover to cover with instances of obligatory precaution, as this begs the question: If such a person cannot form a clear opinion on twenty to thirty percent of legal issues, then how does he engage in ijtihÁd? Therefore, an abundance of obligatory precaution in a legal manual suggests that whoever wrote that manual was very hesitant and did not have a firm grasp of the fundamentals of fiqh and uÒÙl.

Yes, there is another factor that leads people to use obligatory precaution in their legal manuals, namely that they do not want to take responsibility. This means that when they say: ‘Take precaution’ this does not mean that they themselves do not have a clear legal opinion in this matter, rather that they do not wish to be responsible for the actions of others.

IJ: As is the case with some students

KH: I dispute this [phenomenon] and do not agree with it; this means that you do not wish to be responsible for the actions of the moral agent (mukallaf), you instead wish to burden him with responsibility. You are saying: ‘I won’t give you a legal opinion; you can go to someone else.’ If you do not want to give a legal opinion then you had better sit in your house and not write a practical manual! When you become involved with people’s affairs and answering their questions, then you must bear religious responsibility for them. If some matter has become clear to you, then by all means write it in your manual. Yes, if something really is unclear with regards to its evidences and fundamentals, then you can exercise precaution.

As for myself, what do I do? Between me and Allah, there are some instances of obligatory precaution in my practical manual, but they are very rare. This is because I believe that in a practical manual, especially with regards to acts of worship, the vast majority of it is agreed upon by ShÐÝÐ scholars, from the time of Shaykh al-ÓÙsÐ until our time now. This does not need the person to exercise any precaution whatsoever. In addition to that, I have tried – to the extent that I am able – to delete phrases like ‘the most apparent…’, ‘the strongest…’, ‘the most appropriate…’ and so on from my legal manual. This is because these phrases refer to points of scholarly discussion with students of the seminary ask me about and I respond to; as for the majority of ordinary people, they have no need to know whether this evidence was stronger or preponderant. For this reason I have tried, wherever possible, to leave such expressions out of my manual.

On this basis, the principle of ease (al-tashÐl) must govern the writing of a practical legal manual, not that of making things complicated, difficult or taking undue precaution.

IJ: After all, the sharÐÝah is easy and permissive.

KH: This is one of the arguments for taking ease as a basis rather than precaution and difficulty.

Some example’s of Sayyid KamÁl al-ÍaydarÐ’s legal rulings

IJ: Would you kindly grace our journal with some of the new legal rulings (fatÁwÁ) which you have issued, and which distinguish you as a scholar?

KH: I am now speaking theoretically; I am not talking practically. One of the issues I believe is very important is that the scope of rulings dealing with exigencies (iÃtirÁr) and dissimulation (taqiyyah) is very narrow.

For example: JaÝfarÐ jurisprudence has special conditions for what can be prostrated upon in prayer; most-often it is pieces of earth (turbah) specially prepared for this purpose. But this matter is often misunderstood to the point where it is very difficult for a ShÐÝah to pray according to his school of thought in some Islamic countries; it is a source of unbearable difficulty (h>araj) for him to pray on a turbah in the Prophet’s Mosque for example. The question here is: How should a ShÐÝah person pray in this state? There are those who say he must practice taqiyyah and pray like them. But I believe that this matter is not one of taqiyyah; rather the Imams of the Prophet’s Household have given us two manners of praying. In other words, the Lawgiver says: ‘In these conditions, you have a manner of praying’ – and this is the prayer that we usually offer – ‘But if you are subject to those conditions, then you should pray differently.’ This is not taqiyyah, this is actually a different method of prayer and your duty is to offer this different method of prayer.

This is like the ruling for prayer in a situation where he does not fear danger; he prays as he normally does. But the situation is completely different if he fears some sort of danger; the nature of the prayer in a state of potential danger (ÒalÁt al-khawf) differs from normal prayer. The Lawgiver says: ‘Under normal circumstances, offer this prayer. But if you are afraid of some danger, then offer a different prayer.’ In other words, I give you a different method of praying in this situation. I believe that there is no taqiyyah in this prayer, such that we can conceal it so that you conceal it and go home. No, the Lawgiver says: ‘If you are in those circumstances you must pray differently.;

IJ: Meaning another dimension of prayer

KH: Yes, another dimension of prayer. This idea differs greatly from the prevalent understanding of this issue now. For this reason, I believe that Imam al-KhumaynÐ, when he gave the legal ruling to pray and prostrate on the carpets of the Prophet’s Mosque; he did not want to call this taqiyyah, no not at all; neither taqiyyah out of fear or out of respect for others. Rather the duty of a Muslim in these conditions is to pray in this manner.

To further clarify: If a person is in his home region, then he offers his prayer completely, but if he was travelling he offers it shortened. Why does the ruling differ here? The reason is simple: The Lawgiver says: ‘Your duty here is such, and your duty there is something else.’ The same is true of the topic we are presently discussing, not only here; in fact, it is true in most of the rulings of the sharÐÝah. I believe that the issue here is not one of taqiyyah, rather it is one of changing circumstances and conditions. The identification of these conditions goes back to the marjaÝ who is aware of the conditions of his time; he must identify whether this situation requires the first method or second method of prayer.

IJ: You’re saying that the moral agent (mukallaf) doesn’t decide the circumstances?

KH: Exactly, someone asks me and I say: ‘What are the circumstances?’ He explains them to me and I said: ‘If that’s the case, then you should pray like so.’ In giving our own legal opinions on the Íajj we have used this principle a great deal; we see that those responsible for organizing the annual pilgrimage have initiated policies to manage it effectively. For example, if at some point in time a government came and said that no one may pray behind the Station of Abraham (maqÁm ibrÁhÐm) except at a minimum distance of fity or a hundred metres, then what should we do? Our duty is that, not to squeeze in however I can, stand in the middle of all the pilgrims and disrupt their circumambulation (ÔawÁf) just so that I can pray. I believe that even if the Lawgiver has issued an edict, He has done so on the basis of conditions and circumstances. This is what I call the ‘issue of time and place’ – the Lawgiver has provided a particular form and fashion for our deeds in every different time, every condition and every circumstance. We must first acquaint ourselves with these conditions and circumstances in order to say: ‘Our duty is X’ and then when these conditions change, we say: ‘Our duty is Y.’

IJ: Whenever we enter a discussion with the other side, just by seeing a point of difference between us, we say: ‘There is taqiyyah.’

KH: Fundamentally, there are many times when there is no taqiyyah because there is no danger. Now, praise be to Allah, we go to Íajj without any fear of danger. For this reason, some jurists who propound taqiyyah have been forced to say that this is taqiyyah out of respect for others [rather than fear of persecution.] But there is no need of that for us, rather the Lawgiver has said: ‘In these circumstances, this is your duty; in other circumstances, your duty is something else.’ Therefore we have no need for this rubric of taqiyyah or anything else. This is a principle (aÒl).

The role of time and place in understanding opposing evidences

There is another principle which I have affirmed in many of my books and studies on fiqh and uÒÙl, namely that time and place play a role in our understanding of the rulings and legislations that have emanated from our Imams [a3]. When I come to a ruling that has come from Imam ÝAlÐ, and I find that an opposing ruling has come from Imam al-HÁdÐ, considering that there is a span of about two hundred years between them, the common view of our principles of jurisprudence is that an opposition has occurred between a statement of Imam ÝAlÐ and a statement of Imam al-HÁdÐ, so we must either find some common-sense way of reconciling them, look for some sign of one being preponderant over the other, or abandon them both.

On the other hand, I say: No. In many cases the ruling that was issued by Imam ÝAlÐ was issued according to the circumstances in which he lived; had Imam ÝAlÐ been in the same position as Imam al-HÁdÐ, he would have issued the same ruling as Imam al-HÁdÐ. Therefore we can say that Imam al-HÁdÐ issued a ruling under these circumstances, while Imam ÝAlÐ issued one under these, so where is the opposition? Yes, I must go and study the circumstances in which each Imam lived so that had I lived in those circumstances I would say: ‘The ruling is what Imam ÝAlÐ said’ And if I lived in the circumstances of Imam al-HÁdÐ I would have said: ‘The ruling is what Imam al-HÁdÐ said.’

Let me give you an important example: We find that Imam al-Íasan did not press for war against MuÝÁwiyah; he remained quiet. On the other hand, Imam al-Íusayn fought and sacrificed himself. Are these two positions contradictory or not? If we separate them from their circumstances, we would say yes; because one of them was quiet and the other was not. But if we read their actions embedded in the circumstances in which they lived, we would see no contradiction; Imam al-Íusayn, had he lived in the same situation as Imam al-Íasan, he would have done the same thing. And had Imam al-Íasan lived in the same situation as Imam al-Íusayn, he would have done the same thing.

Therefore, when we look at events removed from their context, we will see contradictions; but when we look at them embedded in this context, then there will be no opposition or contradiction between them. I believe that in many of the issues about which our scholars claim there is contradictory evidence and go on to write detailed books explaining these contradictions, there is actually no contradiction whatsoever, because one statement was issued in one set of circumstances and another statement was issued in another.

At this point the jurist who wishes to give a legal opinion must not depend on a narration he has read in WasÁÞil al-shÐÝah. No, he must go and discover the conditions in which that narration was first uttered. This is a fundamental point. In other words: If I now go and read in WasÁÞil al-shÐÝah the narration from Imam al-ÑÁdiq which orders me to collect the Khums tax, and then I look at another narration from Imam al-JawÁd saying, ‘Do not collect the Khums’ I would say: ‘This is contradictory!’ And according to the most common methodology, our scholars would say: ‘This is contradictory!’ too; the first narration says collect the Khums, the second one says do not. But the answer is no, it is not contradictory, because Imam al-ÑÁdiq instructed people to collect the Khums because the material conditions of the ShÐÝah were very positive, so he said to collect the Khums from them. As for Imam al-JawÁd, the narrations from him say that the ShÐÝah were beset by material difficulties [and so he gave a different edict.] However, if we take the words and rulings of the two Imams out of their context, and explain them detached from it, we would say: ‘There is a contradiction between these two traditions.’ On the other hand, if we interpret them in their context, we would see there is really no contradiction at all. This is a principle that I often rely upon in my own research to derive rulings.

These are the two fundamental principles for deriving religious laws, and even for deriving doctrines as I understand them.

On this basis I issued a fatwÁ permitting pilgrims to stone the pillars at MinÁ from the elevated platforms during Íajj.

As for the expansion of MinÁ and matters concerning the ritual slaughter; all of it is permissible, primarily because Íajj itself requires them to be performed, as I have mentioned in my manual of rituals for Íajj and ÝUmrah.

One of my rulings which I stress is that when the human being lives in any society and there are laws there for governing social life, no one has the right to contravene these laws, because these laws have been set down to govern people’s lives, so there is no meaning for someone not to abide by them. Otherwise, if we permitted every person not to observe these laws on doctrinal, religious or intellectual grounds, chaos will ensure. Don’t tell me: ‘So-and-so made up this law and I am not his follower, so I disagree with traffic laws’ for example – the matter is not like that. And it is not permissible to disobey these laws not only in religious states, such as the Islamic Republic of Iran, but even in other countries. The legal rulings in this regard are many indeed.


Sayyid KamÁl al-ÍaydarÐ’s juristic activities

IJ: One final question: some have complained that you have not published any studies on fiqh, namely demonstrative jurisprudence, and uÒÙl, ÎadÐth, rijÁl and the like thereof. What is the reason for this?

KH: Concerning some of what you have mentioned, it is not the case. I have published many lessons in uÒÙl al-fiqh until now. Concerning baÎth al-khÁrij level studies, I have published two volumes: ‘Certitude’ (al-QatÝ) and ‘Probable Knowledge’ (al-Úann), and the same is true for other books of uÒÙl.

As for jurisprudential studies, in the introduction I mentioned that it is not necessary for someone to write; rather he must have a scholarly presence in current discussions. I think that the studied I have mentioned in fiqh and uÒÙl, if they are not more than what other scholars have put forward, they are certainly not less.

For example, the baÎth al-khÁrij studies in fiqh have reached almost seven hundred lessons until now; in uÒÙl they have reached about six hundred; and in the higher level studies, roughly one thousand one hundred lessons in both fiqh and uÒÙl. As for why they have not been published, this is something else altogether.

Why don’t we put it another way and say that we found that the greatest need was in discussions of doctrine, tafsÐr, ethics and philosophy. For this reason, we gave these the greatest priority, because at the moment the need of the people, the need of the specialists and the need of the Hawzah in these fields is greater than their need for works on fiqh and us>u>l.

IJ: Thank you very much for granting us this opportunity to speak to you for our journal.

KH: And thank you for giving me this opportunity, may Allah bless you.