What follows are transcriptions of 7 lessons from the khārij of Fiqh classes on Jurisprudence of Citizenship Law and Religious Minorities, given by Shaykh Haider Hobbollah. These specific lessons were given between December 30th 2018 to January 8th 2019 – and in my transcription, I have also on occasion made use of the published book for the same lessons Qawā‘id Fiqh al-‘Ilāqāh ma‘a al-Ākhar al-Dīnī: Dirāsāt fī Ḍaw’ al-Naṣṣ al-Islāmī wa al-Masīḥī, page 119-170.
Due to the length of the discussion, I have split this discussion into two parts. Click for Part 2.
In the context of establishing various legal principles that can be utilized in the subject of citizenship and religious minorities, one of the principles addressed was the principle of justice and fairness (qā‘idah al-‘adl wa al-inṣāf), and in particular critical observations are offered on Shaykh Yūsuf Ṣāni‘ī (d. 2020) – perhaps the most prominent contemporary Shī‘ī jurist to make use of this principle extensively in his jurisprudence.
The Christians and Muslims all agree that justice (al-‘adl) is one of the fundamental premises in ethics, one’s value system, legislation and implementation of law. No one has ever disputed this matter, despite the varying differences of opinions on the definition, extent, limits and instances of justice. In a religious context, the notion of justice is discussed in three major areas:
1) Theology: The concept of justice has played one of the most significant roles in the development of Islamic theology, particularly in the trends and debates amongst the Ash‘arī, Shī‘ī and Mu‘tazalī schools, where the Ash‘arī school believed we could not superimpose our perceptions of what constitutes justice on the Act of Allah (swt), while the latter two argued otherwise. Within the Shī‘ī context we see a similar debate extending into discussions of legal theory, amongst the Akhbārī and Uṣūlī schools, specifically revolving around the role of human intellect in being able to determine instances of justice and oppression.
2) The Historic Past and Eschatology: Within certain religions like Islam and Christianity, there is the notion that the past is often a reflection of injustice, while the future, particularly with the reappearance of the Mahdī (a) and ‘Īsa (a), the world will be filled with justice. This will happen with the establishment of a government based on justice.
3) Jurisprudence & Ethics: The concept of justice is generally present in ethical discussions and as well as Islamic jurisprudence, particularly given the assumption that Islamic law is meant to establish justice in individual and communal life. However, upon further reflection, it appears that the concept of justice is very prominent in two areas specifically:
a) Personal and individual: justice is seen as an important quality and condition in the discussions concerning the role of an Imam, or a judge, or witnesses in a court, the transmitters of ḥadīth etc. These discussions all convey that justice is an integral part that allows for the sustenance and order of human interaction and life.
b) Implementation of policies: justice is also seen as an important element when it comes to politics, the role of a ruler, the Sulṭān or Walī Amr, the role of the husband and wife in family life, maintaining justice between wives in a polygamous marriage, the raising of children, and so on.
What we find in Islamic jurisprudential discourse is that the personal aspect is very detailed, we have specific rulings on what constitutes justice, and what signs are to be observed in individuals for them to be considered just. However, when it comes to the implementation of laws and certain policies or guidelines, we often find that individuals involved are simply asked to observe and maintain justice in their acts, without necessarily identifying specifics of what this justice is meant to look like. At times it is left in the hands of the person themselves. In fact, at times even a single person is unable to determine what is just, like in the case of running a country, and organizations with multiple people are required to determine these things.
It is primarily in this second aspect where we at times find reference to a legal injunction and principle called Qā‘idah al-‘Adl wa al-Inṣāf – Principle of Justice & Fairness – whose use has generally been limited to very few scenarios in Islamic jurisprudence, often in resolving conflicts between different parties. For example, if two people are arguing over some property, and after all options of determining whose property it is are exhausted, then before using the final principle known as qur‘ah, the principle of justice will be used and the property will be divided into two.
What we want to determine is whether such a legal principle truly exists, a principle through which we can do ijtihād with and use it to deduce Islamic law. Before getting into that discussion, let us look at where someone could argue that we already have the concept of justice as an ijtihādī tool built-into our legal theory and that is through the following:
1) The Shī‘ī Uṣūlī scholars and their views on the authority of the intellect in perceiving al-mustaqillāt al-‘aqlīyyah, an instance of which is the ability to perceive the goodness of justice and evil of oppression. Even though this is a prominent view, the fact of the matter is that practically speaking this position has had no real impact in ijtihād, except on a few rare occasions. They have various justifications for why this is the case and one can refer to the books of legal theory for it.
2) The Ahl al-Sunnah scholars have heavily used the principle of al-maṣāliḥ al-mursalah, especially the Mālikīs and Ḥanbalīs, where the human intellect’s perceptions of justice and oppression, as well as expediency and harm, play a role in deducing Islamic law. However, once again this principle is only to be used in those cases – as per its proponents – where we do not find any religious text (naṣṣ) as evidence, and in cases where there is religious text then one is to submit totally to it. One prominent scholar who was an exception to this was Imam Najm al-Dīn al-Ṭūfī.
Other than these two areas, there is no other prominent area within Islamic law and legal theory where the concept of justice, the ability of the intellect to perceive it in order to deduce a law has been discussed. As such, before the dawn of modernity, we do not find anyone explicitly claiming to formulate a principle called Qā‘ida al-‘Adl.
However, after modernity, amongst Shī‘ī Imāmī jurists there has been some discussion on the existence of such a principle and its active role in ijtihād. There are three major personalities who have brought up this principle in this context:
1) Shahīd Muṭahharī (d. 1979): In many of his books he appears to be following traditional Shī‘ī jurisprudence, suggesting that the intellect cannot determine many things, particularly expediency behind God’s laws. However, in his book Barrasi Mabānī Iqtiṣād-e Islāmī – which was published after his death – he presents a different view. This book caused a lot of controversy after being published, some saying that Muṭahharī is promoting a capitalistic system. It is famously said Imam Khumaynī himself asked for it to be published – though there is no way to affirm this, and there are others who say Imam Khumaynī said it is completely contrary to the established Islamic principles of ijtihād.
We cannot attribute these words to Muṭahharī with any sort of conviction, but if they are truly his words, then in this book, he says there is no choice but to establish the principle of justice as a recourse legal injunction. He says, not everything that religion brings is just, rather whatever is just, religion has to offer it. Religion is subordinate to justice, because justice is from the causes of law. What has supposedly reached us from religion, it may go against justice. There is no such thing as justice which is Islamic, rather Islam has to be just. Hundreds of pages have been written on wafā’ al-‘uqūd – which is based on one verse, but there is not one page on the principle of al-‘adalah, even though the Qurān and Ḥadīth have spoken about this principle so much. He says this principle has been forgotten by scholars in their works.
He says, if jurisprudence is built on justice, and there are places where it supposedly goes against justice, we must allow ourselves to go beyond the text in order to understand it within the framework of justice. Only then can we construct a just society.1
2) Shaykh Shams al-Dīn (d. 2001): He believes in something called Adilla Tashrī‘ al-‘Ulya – which I believe is very similar to Maqāṣid al-Sharī‘ah (higher objectives of the divine law). Shaykh Shams al-Dīn says there are two types of arguments in the Sharī‘ah: Tafṣīlīyyah which are the details, and Tashrī‘ al-Ulya that have the power of governance (ḥukūmah) and interference over all detailed laws, and they cannot be restricted. There are many principles amongst these higher objectives, such as Wahdat al-Umma al-Islāmīyyah, Dawla Islāmīyyah, Raf‘ al-‘Usr wa al-Haraj Ijtimā‘ī, Silm fi al-‘Ilaqat al-Khārijīyyah and so on. He believes the most important of these higher principles is the principle of justice and goodness (iḥsān) as repeatedly mentioned in the Qurān.
For example, if one of the principles is Mabda Ukhūwwah Islāmīyyah – that brotherhood needs to be maintained amongst the Muslim community – and you see a law that goes against this principle, either you say it was never legislated, or you say it was political rule (ḥukm wilā’ī) or give another justification for it. If you see a narration that says you can backbite or curse a non-Mu’min, though they are Muslim, then you will have to say these orders were restricted to a specific time and place.
Another example he gives is regarding a man’s absolute right to grant divorce, where he says that in some cases this can become an instance of oppression. With the principle of justice, a jurist would have to allow a woman to also initiate a divorce.
3) Shaykh Yūsuf Ṣāni‘ī (d. 2020): From amongst the contemporary scholars he seems to be the biggest proponent of this principle and he has derived various rulings fundamentally using this principle in the process of his ijtihād.
For example, in the case of ṭalāq khul‘ī he says – as per also the view of a few classical scholars, it appears Shaykh Ṭūṣī may have had this view – if a woman desires a divorce in some cases where the woman dislikes her husband, it is obligatory on the man to give this divorce. He says the absolute nature (iṭlāq) of evidence for divorce, which gives the absolute and exclusive right to initiate a divorce to the man is problematic because it is against justice.2
Another example he cites is in the amount (‘iwaḍ) that is to be paid by a woman for a ṭalāq khul‘ī. If a woman says take all my mahr, a group of jurists say that the man cannot ask for more, rather only the amount that was part of the dowry. However, the famous view is that a man can ask for the amount of the dowry and even more. If she accepts it, he has to divorce her. Shaykh Ṣāni‘ī says this second case is oppression and against justice. The narration used as evidence for this is an authentic narration of Zurārah, but he says that the iṭlāq of these narrations cannot include this second scenario.3 In fact, he says justice is understood by the common rational laity (‘uqalā’), and this is not some concept that is written on the Protected Tablet that no one can perceive and understand. However, he does acknowledge that this principle is not to be applied in submissive (ta‘abbudī) matters.
Some might respond to Shaykh Ṣāni‘ī and say that this is ijtihād fī muqābil al-naṣṣ, to which he responds that this is not true. This is because the very criterion for the validity of narrations is through the principle of justice, which is a Qurānic principle, and hence such narrations or their absolute nature are in contradiction with the Qurān. He also responds to that scholars by saying that this practice is very commonly used by yourselves, for example, we have many narrations on the event of Sahw al-Nabī, but you reject all of them based on your intellect. We have many on Taḥrīf al-Qurān, but you reject them all because they go against your intellectual arguments and as well as the Qurān itself.
Shaykh Ṣāni‘ī also extends this discussion of justice on to rulings of a disbeliever who is qāṣir (inculpable for his ignorance) – as opposed to muqaṣṣir (a disbeliever who is culpable and negligent for their ignorance) – and believes a disbeliever who is inculpable deserves to inherit from their Muslim family.4
Before we move on, we also want to cite a quote from Sayyid Sīstānī from his work Qā‘ida Lā Ḍarar wa Lā Ḍirār,5 regarding the principle of justice:
ان قاعدة العدل من اعظم قواعد الفقه وان لم تكن معنونة في ابوابه كسائر القواعد ويستدل لها من الكتاب بقوله تعالى: إنّ الله يأمر بالعدل والإحسان ولا ريب ان من العدل ان تكون مؤونة المملوك على مالكه ومن البغي ان تحمل مؤونته على غير مالكه. والظاهر انه لا ينبغي الاشكال في أصل القاعدة كما دلت عليه الآيات الشريفة كقوله: وإذا حكمتم بين الناس أن تحكموا بالعدل وقوله تعالىٰ: وأمرت لأعدل بينكم الا ان البحث يقع في أساسه وضابطه الكلي وقد أوضحنا بعض القول فيه في بعض المباحث الاصولية
Unfortunately, this is the most we could find in the extant works of Sayyid Sīstānī, and this is not enough to really give us an idea of what his overall views are on this principle, what are the limits and extents of it, if it is an ijtihādī principle for him to deduce laws or just a principle that is used in the political realm. What is understood from some of his other discussions in legal theory is that perhaps this is a principle which he uses in context of what he considers the spirit of the law as found in the Qurān.6
These are the prominent Shī‘ī jurists in recent times who have discussed the principle of justice. A question however, still remains – why did the scholars only begin caring about this principle and speaking about it after modernity? There could be two major probable reasons:
1) In the pre-modern era, even though civilizations would come and go, and socio-political and cultural changes would occur in different societies, but these changes had never reached a point where a concerning portion of Islamic law and its application began being perceived as unjust by a segment of Muslims. Certain things that were not considered oppression in the past are considered oppression today due to changes that have taken place in the world.
In this case, we cannot blame the past scholars for not discussing this principle in any detail, simply because there would have been no real reason for them to do so. The laws and their perceptions in Muslim societies were deemed to be all just and in accordance with the world they lived in.
2) In the modern era there has been a greater need felt by some scholars to systemize jurisprudence and to present it as a very organized and interconnected web, that the rulings are not arbitrary – particularly after the formation of nation-states. For example, on the one hand, you may argue for unity and brotherhood amongst the Muslims, but on the other hand, certain rulings allow the backbiting and cursing of certain Muslims, or we may argue that Islam is a religion of peace and mercy, but on the other hand, there are all sorts of rulings on execution, apostasy, jihad and so on. How do we reconcile between these contrasting rulings? The attempt to reconcile between these rulings is referred to as al-fiqh al-manẓūmī, an effort where scholars have tried to come up with a system that can be applied upon societies at large, and in this process one of the injunctions they have offered as a guiding principle is the principle of justice.
Divisions of ‘Adālah
Before going further, let us further dissect and analyze the concept of justice. The concept of justice within religious discourse can be seen and divided into various different perspectives:
1) It can be divided from the perspective of who is defining the parameters of justice:
a) Shar‘īyyah: Allah (swt) and the law it self defines the parameters of what constitutes justice.
b) ‘Aqlīyyah: The human intellect – individual or communal – defines the parameters of justice. If the human intellect truly determines something to be an instance of justice, this cannot be restricted by anything else, since the intellect perceives it as a universal.
c) ‘Uqalā’īyyah: The rational laity define the parameters of justice (this assumes that the rational laity is different than what we refer to as the human intellect).
d) ‘Urfīyyah: Practices and customs of people define justice, and we have no choice but to look at the time and place in every era to make judgements about what is just or not. It is possible to argue that this is essentially just a more specific instance of the rational laity and not something independent.
e) Tawāfuqīyyah: These are contracts and social constructs that people come up with on their own, and this is what defines justice.
The last three cases and perceptions of justice can all be restricted by the religion, or even rejected altogether. Although some have said religion cannot restrict and reject perceptions which are ‘uqalā’īyyah as they originate in our fiṭrah.
2) It can be divided from the perspective of specific events and instances that take place:
There are too many divisions here to enumerate. For example, justice in politics, financial and economic justice, cultures, society, court systems, family life and so on.
3) It can be divided from the perspective of the binding force of the judgement:
There are a number of sub-divisions that can be discussed here, but we will suffice with just two of them. The first of them is into:
a) Tanjīzīyyah: This is if we say that when the judgement of the ‘aql, ‘uqalā’ and ‘urf considers something to be just, you cannot reject it and it does not require approval (imḍā) of the Legislator.
b) Ta‘līqīyyah: This is if we say that their judgement is suspended, and it is not munajjiz unless the Legislator refrains from disapproving and rejecting (rad‘) it or there is no other certain evidence – like tawātur – against it. If the Legislator has disapproved it or there is other evidence against it, then it is not munajjiz.
Shaykh Ṣāni‘ī considers justice to be tanjīzīyyah and in fact, for someone like him, the binding and probative force of solitary reports is ta‘līqīyyah.
A second division under this perspective is into:
a) Iḥtikārīyyah: This is when it is claimed that the judgement and identification (tashkīṣ) of whether an action is just or not has been discouraged by the Sharī‘
b) Tafwīḍīyyah: This is a reference to those areas within the religion where Allah (swt) has permitted the rational laity to do tashkīṣ of justice, and that is binding.
4) It can be divided from the perspective of being absolute (muṭlaq) and relative or restricted (nisbī or muqayyad):
This fourth division is done by ethicists and philosophers and it is also a very relevant division for us. If you say justice is relative (not just its perception, but also in application) then anyone’s application is binding. Proponents of this principle in jurisprudence will often believe – from the get-go – that it is a relative principle, not an absolute one.
Is Qā‘ida al-‘Adalah an Uṣūlī Principle or Fiqhī?
The answer to this question has to be given by specialists in the philosophy of sciences, and we are not intending on spending a lot time on this question in our discussion. It appears that those who were discussing this principle in recent times were taking it as a Fiqhī principle. We can consider two scenarios and see where this principle fits in:
a) Those who say it is an Uṣūlī principle, and those who say it is a Fiqhī principle did not understand it with precision. What we know is that a Fiqhī principle is a principle that is applied on instances, and does not result in you deducing and arriving at a new universal Shar‘ī Hence you can even give a Fiqhī principle to people in society and they can use it themselves individually. However, an Uṣūlī principle implies that it will lead us to a new universal Shar‘ī law and can only be used by a jurist.
If what the proponents above say is correct, and that the criterion to differentiate between an Uṣūlī and Fiqhī principle is as they say, then in actuality, the principle of justice has an aspect of both. A person can be given a law which says, “be just between your wives,” and the application of this ruling can be left in the hands of the customs and society, what they deem to be justice needs to be carried out. In this case it is a Fiqhī principle. However, the discussion we are concerned with, which is to determine whether this is a principle by which we can deduce law, then in this case it is going to be an Uṣuli principle.
b) There are those who say it is solely a Fiqhī principle and it resembles other Fiqhī principles like the principles of Nafī al-Ḥaraj and Lā Ḍarar, which have governance over all other rulings and allow us to arrive at a secondary ruling (ḥukm thānawī).
It appears that Shaykh Ṣāni‘ī is one of the biggest proponents of granting this principle governance over all other rulings, and this is exactly what Imam Najm al-Dīn al-Tūfī did with the principle of Lā Ḍarar.
Before we move on to the arguments for this principle and its limits, I want to reiterate that the concept of justice and its relationship with different sciences is a very expansive and extensive subject. We are only discussing it in a very limited context here, and that is to see whether it is a principle that can be used in the process of ijtihād and if so, what are its limits.
Qurānic Evidence for the Principle
The most important evidence for this principle is the Qurān. There are too many verses that speak about maintaining justice and fairness, and so we will only highlight some of the major ones.
Verses That Use the Word ‘Adl
[42:15] … And say, “I believe in whatever Book Allah has sent down, and I have been commanded to do justice between you. Allah is our Lord and your Lord. We have our deeds, and you have your deeds; there is no argument between us and you; Allah will gather us (all), and to Him is the Destiny.”
[4:135] O you who have believed, be constantly upright with equity (with others), witnesses for Allah, even if it be against yourselves or (your) parents and nearest kin. In case (the person) is rich or poor, then Allah is the Best Patron for both. So do not ever follow prejudice, so as to do justice; and in case you twist or veer away, then surely Allah has been Ever-Cognizant of whatever you do.
[5:8] O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just; that is nearer to righteousness. And fear Allah; indeed, Allah is Acquainted with what you do.
[6:8] And do not draw near the wealth of the orphan, except in the fairest (manner), until he has reached full age. And fill up the measure and the balance with equity. We do not charge (any) self except to its capacity; and when you say (anything), then be just even if he were a near kinsman. And fulfil the covenant of Allah. That is what He has enjoined you with, that possibly you would be mindful.
[4:58] Surely Allah commands you to pay deposits back to their qualified family (i.e. the owners) and, when you judge among mankind, that you judge with justice. How favorable is that to which Allah surely admonishes you; surely Allah has been Ever-Hearing, Ever-Beholding.
[6:114-115] (Say), “Then, shall I inequitably seek other than Allah for arbiter, and He is (The One) Who has sent down to you the Book (clearly) expounded?” And the ones to whom We brought the Book know that it is being sent down from your Lord with the Truth, so do not definitely be of the constant wranglers. And the word of your Lord has been fulfilled in truth and in justice. None can alter His words, and He is the Hearing, the Knowing.
These verses make it very clear that justice needs to be upheld and maintained.
Verses That Use the Word Qiṣṭ
[60:8] Allah does not forbid you (as regards) the ones who have not fought you on account of the religion and have not driven you out of your residences that you should be benign to them and be equitable towards them; surely Allah loves the equitable.
[49:9] And in case two sections of the believers fight each other, then make a righteous (reconciliation) between them both; then in case one of them is inequitable to the other, then fight the one that is inequitable until it concedes to the Command of Allah. So in case it concedes, then make a reconciliation between them both with justice, and be equitable. Surely Allah loves the equitable (ones).
[4:135] O you who have believed, be constantly upright with equity (with others), witnesses for Allah, even if it be against yourselves or (your) parents and nearest kin.
[5:8] O you who have believed, be constantly upright for Allah, witnesses with equity, and let not antagonism of a people provoke you to not do justice…
[5:42] Constant listeners to lies, constant eaters of illicit gain, so in case they come to you, then judge between them or veer away from them; and in case you veer away from them, then they will never harm you anything; and in case you judge, then judge with equity between them. Surely Allah loves the equitable.
[7:128-129] And when they perform an obscenity, they say, “We found our fathers (performing) it, and Allah has commanded us to (perform) it.” Say, “Surely Allah does not command obscenity; do you say against Allah that which you do not know?” Say, “My Lord has commanded equity; and set your faces upright at every mosque and invoke Him, making the religion His faithfully; just as He began you, so you will go back (to Him).
These verses also make it very clear that the purpose and goal of the messengers was to establish equity in society.
Verses That Prohibit Injustice, Oppression and Tyranny
There are too many verses in the Qurān that can be mentioned, we will suffice with just a few of them:
[2:279] So, in case you do not perform (that), then take notice of a war from Allah and His Messenger (against you). And in case you repent, then you will have the capitals of your riches; you will not do injustice, and you will not be done injustice.
[42:42] Surely the way (of blame) is only against the ones who do injustice to mankind and act inequitably in the earth untruthfully; those will have a painful torment.
[40:31] The like of the steadfast manner of the people of Nūḥ and ‘Ād, and Thamūd and the ones even after them; and in no way does Allah will an injustice for (His) bondmen.
[4:29-30] O you who have believed, do not eat (up) your riches among you untruthfully, except there be commerce by your mutual consent. And do not kill yourselves. Surely Allah has been Ever-Merciful to you. And whoever performs that in hostility and unjustly, then We will drive him into a Fire; and that has been for Allah an easy (thing).
It is interesting to note that certain scholars, such as Shaykh Anṣārī in his al-Makāṣib believes the command in the last verse above, “do not eat up your riches among you untruthfully…” is something whose instances need to be determined by society and its customs, but they do not say make the same claim regarding the perception of injustice in the same verse.
Verses That Speak of ‘Udwān and Ta‘addī
[2:190] And fight in the way of Allah the ones who fight you, but do not transgress; surely Allah does not love the transgressors.
[5:2] …And do not let antagonism of a people who barred you from the Inviolable Mosque provoke you to transgress. And help one another to benignancy and piety, and do not help one another to vice and hostility, and be pious to Allah; surely Allah is strict in punishment.
[5:87] O you who have believed, do not prohibit whatever good things Allah has made lawful for you, and do not transgress. Surely Allah does not love the transgressors.
From these four sets of verses, the Qurān makes it very clear and obvious that it encourages and commands justice, and prohibits injustice, oppression, and transgression against others. The claim is that these verses show that this is a principle which people can generally apply and use in their day to day lives. For this reason, we will not go over the ḥadīth on this subject, because once again they are too many in number and most of them are establishing the same concept as what the Qurānic verses are conveying.
It is pertinent to know that those who are relying on religious texts are essentially trying to establish a very specific legal principle, and they believe that the text itself defines the parameters of justice for us – whether it is limited to certain instances or it is very generic. However, this is unlike certain prominent figures like Mohammad Mojtahed Shabestari who believe that justice and its instances are to be found outside of the text, and so the Qurānic verses themselves have no binding force for them.7 All the Qurānic verses are to be understood as mere admonitions or advisory commands (irshād) towards that which humans already understand. In our discussion, we are not concerned with scholars like Shabestari as they are outside the scope of our discussion.
Arguments For and Against the Principle of Justice
Let us now look at the different arguments for this principle:
First Argument: The proponents of the principle will say that when religious texts use terms such as justice, goodness, fairness etc. they are referring to the concept of justice, which is already known from before within society and many of its instances are also already known – people can explain these concepts and point out its instances in reality. You know something is an instance of justice just as you understand the concept of justice itself – the Qurān is not using a vague term, people knew what ‘adl meant when these verses were being revealed. Likewise, they also knew its instances. In other words, religion is essentially speaking about justice that the rational laity already knows about.
Critique #1: The popular and majority view of scholars believes these verses are not talking about things that have been delegated to you, rather they are referring to justice as an ontological description. What the verses are saying is that the Sharī‘ah is just, Allah (swt) is just, the religion of Islam is just – whether we, the rational laity, understand and perceive this or not.
In other words, these verses are not delegating the identification of justice to humans nor are they telling us how to determine these instances, instead they are merely giving us a description of a certain reality of Allah (swt), the Prophets (p), the divine law. Yes, this second group does not deny that there are some very limited areas where religion has granted authority to humans to determine the instances of justice themselves.
Response to the Critique: Shaykh Ṣāni‘ī himself has responded to the aforementioned critique in an interview8 where he says, if these verses are merely descriptive and do not grant us any authority to determine the instances of justice and injustice, then all these verses will become secretive and mysterious. This is because you are saying we do not know what justice is, and it is just a reference to some ontological reality. This is against ḥujjīyyah ẓuhūr al-Qurān (the probative force of the prima-facie of the Qurān) and if we do not understand the instances of justice and injustice, then what does it mean for Allah (swt) to tell people that He is ‘ādil? This is tantamount tto someone saying, “Do X”, or “someone is Y”, while you do not know even know what X or Y mean.
Shaykh Haider’s Response: The response of Shaykh Ṣāni‘ī is not very convincing for me, because proponents of ḥujjīyyah ẓuhūr al-Qurān are not denying the meaning of justice and injustice – they believe these words have clear meanings. What they are denying and questioning is the process by which we can apply these meanings on external instances – these external instances are not part of the prima-facie of the Qurānic verses in most cases. These verses are similar to the verse saying, “aqīmū al-ṣalāt” – establish the prayers – we know the general meaning of Ṣalāt through its prima-facie, but there are very detailed rulings and prescriptions that are to be found outside of the Qurān.
Critique #2: When we look at the verses of the Qurān, we find that there are only a number of verses that are speaking of some sort of ontological description, but definitely not all of them. For example, if a verse says to do good (iḥsān) to people, we understand the meaning and in general (fil jumlah) we know of its instances. Likewise, when it comes to the word justice in these verses, people did have a previous understanding of the concept and its instances in society, and when these verses were revealed they would have had an idea regarding what was being expected.
Why is it that scholars leave the determination of “goodness” in the hands of people when the Qurān says do iḥsān to your parents, by letting people figure out its various instances? We do this with many other phrases, for example when the Qurān says jādil hum bil-aḥsan – dispute with them in the best of ways – does the Qurān lay out the different types of fallacies for us from logic that we are to abide by? Or when the Qurān says, call onto people with a good admonition (al-maw‘izah al-ḥasanāh), once again this is left to the hands of people to determine. If that is the case, then why is it that when we come to the concept of ‘adl and qiṣṭ we say this is not to be done? If you look at the first six verses on ‘adl and even some verses regarding qiṣṭ, you will see that they imply that humans can indeed understand some instances of justice. Yes, we cannot arrive at this conclusion through some of the other verses.
Conclusion: These verses in general have allowed people to understand and apply the principle of justice, as long as people have certainty and conviction that something is indeed an instance of justice or oppression. If this perception is mere speculation then it is not binding, and so even though we did not find Shaykh Ṣāni‘ī’s rebuttal strong, the position is still valid in general.
Critique #3: Even if we were to agree that people have the ability to determine the instances of justice and injustice, the question is, what are the limits of it? This is because there is no doubt that the Sharī‘ah itself is also an independent source that can determine instances of justice and injustice for us. If the Sharī‘ah and our perceptions conflict, why should we prioritize our perceptions over what the Sharī‘ah is saying? In other words, these verses do not establish the priority and superiority of human perceptions, especially given their speculative nature most of the time, over the Sharī‘ah.
What we see is that the Ahl al-Sunnah through the use of al-maṣāliḥ al-mursalah have argued for the use and validity of human perceptions in determining justice only in those cases where there is no religious text and evidence for a law. This is while proponents of the principle of justice seem to be arguing for it even when there is religious evidence available for a law, and they appear to be doing this by holding on to the absolute nature (iṭlāq) of the verses. Let us analyze their responses:
Rebuttal 1: What some scholars such as Shaykh Shams al-Dīn have said by claiming that justice is an overarching principle and that as per the Qurān and ḥadīth it is clear that this principle cannot be restricted by anything else. It has complete governance over all of the divine law, and hence people and their customs will have priority over the religious texts since the texts cannot restrict the principle of justice.
Shaykh Haider’s Response to the Rebuttal: This is not a discussion of restricting the principle of justice, rather the question is regarding the identification of the instances of justice. We are in front of two sources which point and lead us towards different instances of justice, and the question is, why should we prefer human perceptions of these instances over the ones mentioned in the religious texts. No one says that if humans perceive something to be just, while the religious texts say otherwise, that this is a restriction of the principle of justice, rather what they say is that the religious texts are more adept in informing us about what the instances of justice are.
When the religious texts tell humans to act with justice and fairness, all this proves is that humans do understand some instances of justice, not that complete authority to perceive justice in all aspects of one’s life has been delegated to them.
Rebuttal 2: The validity of all religious texts is conditional to human perception of justice and injustice. If humans perceive a certain religious text to be unjust, this will cause them to doubt the very validity and truthfulness of that text, and if that is the case, this is not a scenario of conflict and contradiction between human perceptions and religious text, rather there is no valid religious text to begin with.
Shaykh Haider’s Response to the Rebuttal: The claim that all religious texts are conditional to human perceptions of justice is a big claim and it requires evidence. The most the Qurānic verses prove is that in cases where there is no religious text available, human perceptions of justice and injustice are binding, but to argue beyond that will require a very far-fetched interpretation of the prima-facie of the verses. All we can say is that all divine laws are just, but humans have only been delegated authority to perceive and implement justice in cases where there is no religious text telling them how to implement a certain law or how to carry out a certain act.
Rebuttal 3: When there is a specific religious text that tells us to do something, and our human perception deems it to be unjust, then since there is a conflict between these two sources and there is no way to prefer one over the other, both of these sources are nullified and result in tasāquṭ. This is enough to establish justice since the apparently unjust religious text will no longer be implemented.
Shaykh Haider’s Response to the Rebuttal: It is possible for scholars to respond to this rebuttal in one of two, or both the following ways:
a) The evidence for the probativity of the Qurān and Sunnah has governance over the understanding and perceptions of the rational laity when it comes to application, and this is what the religious community believes to be true as the whole purpose of being a Muslim is to be submissive to Allah (swt) and His divine law.
b) A number of traditions which say that the religion of Allah (swt) cannot be understood solely by the intellect and the intellects cannot reach the truth of the matter when it comes to divine law.
With either of these arguments, it is possible to say that the religious texts are preferred over human perceptions of justice and injustice in the case when a text is available. I believe the first response is stronger than the second, and that the most which can be proven through the Qurān is:
a) The Sharī‘ah is established upon real justice and that it should be implemented fairly.
b) The religion has allowed the rational laity to apply the concepts of justice, fairness, injustice etc. on external reality as long as their understanding is in accordance with this real justice.
Real justice is not necessarily the same as what we always perceived, as our perceptions are many a times highly speculative. It is the Sharī‘ah that can guide us to what laws are in accordance with real justice, and the Sharī‘ah helps us in aligning our perceptions accordingly. As such, we must say that the Sharī‘ah and religious texts are superior and prior to the perceptions of the rational laity. Though the religious texts have delegated this authority to us in some areas, particularly where there is no evidence for a law at our disposal, but in other cases the Sharī‘ah can restrict the application of our perception. This is not a restriction of justice or the fact that religious laws are based upon justice, rather it is a restriction on us using our perceptions to deduce law.
As for justice which is determined by the pure intellect itself, and not by the rational laity and societal customs, this will be addressed soon.
With this we can also say that when Shaykh Ṣāni‘ī claims to be verifying the ḥadīth by comparing it to the Qurān which has informed us about the principle of justice, this is not correct, because it is not known whether the ḥadīth are actually against justice or not, simply because the laity and societal customs deem it to be unjust or oppressive.
As for the claim that the principle of justice is just like the principle of Lā Ḍarar and Lā Ḥaraj, whereby we can restrict an Islamic law whenever we perceive something to be harmful and detrimental, this claim is correct as long as we have certainty that something is truly just or unjust. This is not an easy thing to claim, especially because the religious texts have taken real justice into consideration, not perceptions of justice that society necessarily comes up with.
Conclusion: What we have arrived at through this first argument is that the verses are telling us that the religion of Allah (swt) is based upon real justice, and human perceptions of justice and injustice play a role in cases where we have no religious text at our disposal, not in places where we have a religious text.
In the next part, we will discuss the following:
1) The role of the pure intellect in determining instances of justice and injustice, as has been claimed by the Uṣūlīs in their discussions of al-mustaqillāt al-‘aqlīyyah.
2) The relationship of the principle of justice with certainty and speculation.
3) The application of the principle of justice and social chaos.
4) Shaykh Haider’s view on the principle of justice in ijtihād and responding to the critique that his approach is similar to that of the Ash‘arī school of thought.
- See Barrasi Mabānī Iqtiṣād-e Islāmī, pgs. 14-27, 152-154, 157.
- Muqāribāt fī al-Tajdīd al-Fiqhī, pg. 134-135.
- Ibid., pg. 146-147.
- Ibid., pg. 225-226, 310-311
- Pg. 325.
- Mabāḥith al-Ḥujaj, pg. 23-31; Ta‘āruḍ al-Adillah wa Ikhtilāf al-Ḥadīth, pg. 472-484.
- Qā‘ideh ‘Adl dar Fiqh Imāmīyyeh, pg. 233-253 (transcript of an interview with Mohammad Mojtahed Shabestari).
- Qā‘ideh ‘Adālat wa Nafī Ẓulm, pg. 195-196.