The following is a translation of the introduction to Jāyegāh Mabāni Kalāmi dar Ijtihād by Dr. Sa’īd Dhiyāi’far. It is a 1,024-page research work which has surveyed 1,079 different (traditional and contemporary) jurisprudential and theological works exploring the various theological (kalāmī) foundations underpinning ijtihād and jurisprudence. Throughout the work, the author attempts to illustrate the importance of theology in a jurist’s understanding, and how theological discussions subsequently have a direct influence on jurisprudence and legal verdicts.

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Philosophy of a Discipline of Study (falsafeh ‘ilm)

In the past, when Islamic scholars were dealing with specific subjects they would first introduce the subject within their works by answering a number of questions in regards to its specifications and contents. To give an example, discussions such as definitions of the subject, it’s objectives, benefits and the demonstrative methodologies employed. These would all be addressed and clarified prior to engaging in the actual subject and was widely referred to as the Eight Headings (ru’ῡs al-thamāniyya). Despite this, they would not adequately cover the different aspects of the subject being studied and neither was it approached as an independent study in its own right. On the contrary to this, there now exists independent discussions responsible for answering questions that may be had on various aspects of a specific subject. This is referred to as The Philosophy of a Discipline of a Study. This form of knowledge, which takes an externalist approach in looking at a subject, has been already applied to disciplines such as Mathematics, Physics, Law, Theology, but unfortunately, to date, nothing substantial has been undertaken in regards to Jurisprudence (fiqh).¹

Philosophy of Jurisprudence (fiqh)

The Philosophy of Jurisprudence, in respect to its definition, is knowledge which is responsible for responding to general questions that are considered to be part of the Science of Jurisprudence. Examples of such questions are:

-What is the subject matter of Jurisprudence?

-What is the definition of Jurisprudence?

-What are the boundaries of Jurisprudence?

-Where are the boundaries drawn between the sciences of Jurisprudence and Ethics? Or Jurisprudence and Theology?

-What other sciences are intertwined with Jurisprudence?

-What sciences does Jurisprudence influence?

-What are the presumptions and (axiomatic) foundations taken in Jurisprudence?

-In what manner are the topics explained and what type of demonstrative methodologies are used to prove and establish the rulings?

As of yet an independent science dealing with these types of questions has not been established, neither has a comprehensive book tackling these issues been written. While some of these questions have been touched upon in various places in books written by the scholars they still require further elaboration and explanation. For example, some of the questions above have been briefly answered in the beginning of numerous jurisprudence books while others have been alluded to and dealt with in works of legal theory (usῡl al-fiqh). Despite this, there still remains a need for it to be collated with discussions conducted in theology and exegesis in order to produce a coherent and satisfactory independent discussion.

Theological Foundations of Ijtihād

One of the most important questions, as mentioned above, in the Philosophy of Jurisprudence is on what foundations and on what presumptions has this knowledge been built on? One of the foundations under discussion here would be the theological foundations (mabāniyeh kalāmī). In this respect, what concepts that are required to be proven and established within Theology has Jurisprudence been constructed on? And (what influence does this have on) the jurist, who accepts these Theological concepts to be absolutely correct, when exercising ijtihād?

Some of these theological concepts are unanimously accepted by all Islamic sects whereas some are only accepted by the Shi’ī school. Additionally, some of these concepts are exclusively held by a handful of theologians. The objective of this research is to investigate the theological concepts held to be true by the Imāmi school of thought. On top of this, we will also look at some theological positions held by a few Imāmī thinkers² and we will investigate its subsequent impact in the deduction process of laws (istinbāt fiqhī).

The Background of Theological Foundations

The majority of theological discussions have their roots in the Qur’ān and the practice (sunnah) of the Prophet and His Family, however, the portrayal of these theological discussions as a basis of ijtihād and Jurisprudence is to be found in the works of the jurists and theologians. For example, Shaykh Tῡsī (d. 1067) stipulates knowledge of God’s Attributes as well as of the Prophet’s and the Imām’s to be one of the conditions of ijtihād.³ He looks at this topic extensively and demonstrates the fundamental importance of this knowledge within the realm of Jurisprudence. Elsewhere he touches on concepts such as the Justice and Knowledge of God, characteristics of the Prophet and the truthfulness of the Qur’ān as a pre-condition to the derivation of law.⁴ After him, Khwāja Nasīr al-Dīn Tῡsī (d. 1274) argued that studying the theological discussions, rationally speaking, has a greater priority than studying matters of jurisprudence and legal theory.⁵

Similarly, a number of jurists have explicitly recognised that Theology is one of the few sciences necessary for ijtihād.⁶ One Imāmi jurist⁷ mentions a number of theological concepts which he considered to be influential in the process of deriving law:

-The Principle of Grace (lutf)

-The Absence of Obligation Of That Which IS Beyond One’s Capacity (‘adm taklīf bihī mā lā yutāq’)

-The Absence of (Something) Detestable being Issued from The Wise (‘adm sudῡr qabīh az hakīm)

-The Principle of Infallibility (‘isma)

However, as we will see, the theological concepts that effect ijtihād are a lot more than merely these four. Furthermore, a number of Imāmi jurists while demonstrating and deriving their rulings have made direct reference to a number of theological concepts.⁸ Similarly, while defending their own rulings and attempting to demonstrate them to be correct they have sought assistance from these theological concepts, and at times, even admitted that their jurisprudential rulings are contingent and based completely upon these concepts.⁹

Objectives and Method of Research

From what has been already mentioned it has become a little more clear how jurisprudential matters can be influenced by theological beliefs. Additionally, a brief look at the various jurisprudential opinions illustrates how our jurists all had different interpretations on the same matter, and furthermore, occasionally religious verdicts have been issued whose implementation lack both personal and social practicality. At times, revisiting jurisprudential matters by considering the context of time and place could solve an issue (of a problematic edict) to a certain extent,¹⁰ yet in the majority of cases we need to take a closer look and analyse the foundations and infrastructure underpinning these edicts. Once we have taken a microscopic look at the theological foundations at the heart of the derivation process we could begin to uncover the inner workings behind it. On this basis it’s of the utmost importance to understand areas where theological beliefs have had a direct or indirect effect on jurisprudence, to review the remit and parameters of the influence being had and to evaluate the proof for each of these foundations; especially when we wish to revisit many of the legal verdicts in the area of social matters.

On this basis the author has strived to do the following within this work:

One: To extract a number of influential theological foundations from the heart of jurisprudential discussions, which thanks to God has been done to quite an extensive state. Due to limited access to appropriate software, approximately 90% of the research was carried out by hand.

Two: To present the proofs both for and against each of these theological concepts and to present a fair critique of both sides.

Three: Where possible, to present the various conclusions that could effect Jurisprudence and Legal Theory.

Four: To touch on the instances where a difference of opinion in Theology could create a visible split in Jurisprudence, provide sources and references of such a split and where possible provide a critique.

Five: To look specifically at the current state of Jurisprudence and extract the theological positions which are having a significant influence.

Six: To present the theological discussions in a coherent and systematic order. On this basis the book is split into the following five chapters:

1. Rational Discussions (mabāhith aqlī)
2. Acts and Characteristics of God
3. Prophethood
4. Imāmate
5. Traits of Sharī’a

1. Translator’s Note [TN]: Ustād Khosropanāh, the head of Iran’s Institute for Research in Philosophy, has written a series of articles discussing the philosophy of disciplines such as, Philosophy of Theology, Philosophy of Qurānic Sciences, Philosophy of Ḥadīth Sciences and so on. They can be accessed on his official website: http://khosropanah.ir/fa/fa-mo.html
2. TN: An example of this would be the concept formulated by al-Shāhīd al-Sadr (d. 1980) called The Right of Obedience (haqq al-tā’a). While some, including al-Sadr, claim that this idea existed amongst some scholars in the past, he was one of the first prominent scholars to systematically synchronise it with his discussions in legal theory. The theological concept he presents provided the foundation for his discussion on the remit and jurisdiction in which a person is to obey God, extending obedience from matters in which a person has certainty to even matters in which a person has mere speculation or doubt.
3. ‘Uddah al-Usῡl by Shaykh Tῡsī, v. 1, p. 42
4. ibid, v. 2, p. 727
5. Talkhīs al-Mohassal by Khwāja Nasīr al-Dīn Tῡsī, v. 1, p. 1
6. Mabādī al-Wusῡl by Allāma Hillī, p. 248, Tahdhīb al-Wasῡl by Allāma Hillī, p. 48, Durῡs al-Sharī’a by Shahīd Awwal, v. 2, p. 65, Rawdhatu al-Bahīyya by Shahīd al-Thānī, v. 3, p. 62, Jāmi’ Abbāsī by Shaykh Bahā’ī, p. 35, Zubdatu al-Usῡl by Shaykh Bahā’ī, p. 7, Rasā’il Muhaqqiq Karakī by Muhaqqiq Karakī, v. 1, p. 168, Ma’ālim al-Dīn by Shaykh Hassan, v. 1, p. 93, al-Wāfiyah by Fādhil Tῡnī, p. 88, p. 251, Fawā’id al-Hā’iriyya by Wahīd Behbahānī, p. 336
7. Mafātīh al-Usῡl by Syed Mohammad Mujāhid, p. 547
8. ‘Uddah al-Usῡl by Shaykh Tῡsī, v. 1, p. 194, Ma’ārij al-Usῡl by Allāma Hillī, p. 112, Dhakhīra al-Ibād by Mohammad Bāqir Sabzwāri, v. 1, p. 43,  al-Wāfiyah by Fādhil Tῡnī, p. 88.
9. Jawāhir al-Kalām by Shaykh al-Najafī, v. 1, p. 150 and 303, v. 2, p. 229, v. 15, p. 196, v. 24, p. 222, Mustamsak al-Urwatu al-Wuthqā by Syed Mohsin Hakīm, v. 14, p. 259, Kitāb al-Bay’ by Syed Khomeinī, v. 3, p. 414, Dirāsāt fī Wilāyah al-Faqīh by Shaykh Montazerī, v. 3, p. 633
   [TN]: One jurist whose jurisprudence was heavily influenced and shaped by his theological beliefs was Muqaddas Ardabili (d. 1585). He would often argue throughout his jurisprudential work Majma al-Fā’ida wa al-Burhān that verdicts should not be difficult for the person to perform but rather they should reflect the general principle that he had established from the Qur’ān and the Ahadīth that religion is meant to be simple and easy. It was on this basis that Wahīd Behbehāni commented that if Ardabilī’s views were to be accepted, “nothing would remain of this religion and its laws”.
10. TN: A well-known example of a ruling which changed when considered within the context of time and place would be Syed Khomeinī’s verdict on chess, more on which can be read here: https://iqraonline.net/syed-khomeini-chess-and-musical-instruments/