Second Argument: One of the most important arguments for the principle of justice is the intellect itself. The pure rational intellect very clearly attests that all religious laws need to be based on justice, and given that we believe in al-mustaqillāt al-‘aqlīyyah1 and the ability of the intellect to understand justice and oppression, then whenever our intellect judges something to be just or unjust, it is prioritized over any religious textual evidence for divine law.
We do not want to go into a lot of depth regarding the role of intellect in religion and its probative force, that is an extremely lengthy and independent discussion, but we will quickly allude to two points before we address this argument. There are two dimensions to consider here:
1. Philosophical: There is a discussion concerning the intellect which is purely philosophical, and that is to identify the aspect of the intellect that plays the role of uncovering truths – it plays an epistemic role – and a second aspect which plays the role of commanding us what to do with given truth – a pragmatic role. These two intellects are not to be confused with the theoretical and practical intellect, even though some schools in Western philosophy have argued that these are the same.
There is no doubt that the intellect plays a role in how we live and behave, whether we have certainty in our knowledge and belief, or we are skeptical of it. However, the epistemic side of this intellect, which is to say that it is able to uncover the truth at all times, particularly when it comes to applying general universals on external reality and particulars, this is a very difficult task. The reason why this is so difficult to do is because of the reality of nature, history, and human life, which are not as arranged or coordinated as we assume them to be. Rather life is much more complicated, especially given that this is a realm of conflicts, limitations, and necessities.
For example, someone can argue that banning polygamy is wrong because it results in a higher population of celibate women, higher depression rates and so on, even amongst women who themselves are against polygamy. On the contrary, someone can say banning polygamy has a lot of advantages in today’s society as it results in broken families and a lack of trust and so on. Interestingly speaking, in this regards Shaykh Ṣāni‘ī himself acknowledges that the notion of justice in any law has to take the majority of people into consideration, and cannot be catered individually for every single person in society on a case by case basis.2
Given the limitations and conflicting nature of the material world, there is no choice but to humble ourselves on the epistemic aspect of the intellect in the case of determining and identifying ethical particulars with so much confidence. Of course, when it comes to the pragmatic aspect, it is to be used and has much more value for us.
2. Legal Theory: If we assume that a person attains psychological certainty or a very high degree of speculation that cannot be easily ignored, that a certain law that appears in a religious text is oppressive, then it is natural for them to confront this text by doubting whether it was truly uttered by an infallible, or they will try to determine if it means something else, or question the extent of the rule.
This is because, in the case of psychological certainty, a syllogism is created for a person which says it is impossible for this rule to have been legislated by Allah (swt) because it is oppressive, and Allah (swt) is not an oppressor.
Given these two dimensions above, theoretically speaking, when it comes to the philosophical dimension, we side with the critics of the principle of justice as it is extremely difficult for the pure intellect to identify instances of justice and oppression perfectly in accordance with reality, but when it comes to legal theory, we side with the proponents, in the scenario that a person truly attains psychological certainty that something is unjust or oppressive.
For Shaykh Ṣāni‘ī, the intellect is not the intellect of philosophy or theology, rather it is an intellect that is closely connected to the atmosphere of revelation. He cites the example of Imam Khumaynī to explain what he means by the intellect. Imam Khumaynī argued that using loopholes for usury-based contracts was impermissible based on the concept of vainness. That is to say, if a loophole was allowed, it would make the prohibition of usury useless practically speaking. The judgement regarding a loophole being impermissible is a judgement of the intellect, but it is rooted in one’s understanding of the Sharī‘ah.
I have two observations to mention regarding the above claim of Shaykh Ṣāni‘ī:
1) This explanation of the intellect by him is in conflict with what he says elsewhere when he says intellectual judgements cannot be restricted. Perhaps what he meant elsewhere was the pure rational intellect and not this intellect that is connected to the general atmosphere of revelation and the ḥadīth
2) If what is meant by the intellect is the ability to perceive within and through the religious atmosphere, then this means Shaykh Ṣāni‘ī has not offered anything new besides a reiteration of the theory of Maqāṣid al-Shrī‘ah which Shāṭibī (d. 790/1388) had put forth. How can he reconcile his statements here with his view that when the Qurān commands us to maintain justice and fairness, it is delegating the identification of these concepts to the rational laity (‘uqalā’) and societal customs (‘urf)? Giving this authority to people is nothing but an abandoning of the religious texts, how does that reconcile with the intellect which is somehow connected to the religious texts and atmosphere?
3) If what Shaykh Ṣāni‘ī means is that the perceptions of societies on what entails justice and injustice itself become part of the atmosphere of the religious texts, then this seriously dismisses and undermines the whole notion of submission to the Qurān and ḥadīth.
4) The example of Imam Khumaynī is not relevant to our discussion, because that has to do with the theoretical intellect which no Shī‘ī Uṣūlī scholar is against when it comes to ijtihād, rather our discussion is regarding ethical propositions and the practical intellect. Imam Khumaynī’s discussion is regarding the reasonability of some of these narrations being uttered, not whether they are an instance of injustice or justice. Furthermore, no one denies that textual criticism has a role to play in certain places when there is a clear criterion for identifying something as unjust or just, but our whole discussion is whether there is a general and absolute principle where this authority has been given to people.
The Intellect or Societal Customs in Determining Justice
One of the claims of Shaykh Ṣāni‘ī is that if society and their customs declare something to be oppressive and unjust, while the philosophical intellect considers it to be neutral or even just, then the perceptions of society are given priority over the precision of the pure intellect. This is because the Qurānic verses and ḥadīth are speaking in the language of people, who are not philosophers nor speak or think that way, and this is a well-established principle in ijtihād that one must prioritize the customary understanding of religious texts over the precise and intellectual understanding of the texts. This is why a drop of blood is not considered nor treated as blood in some Islamic rulings because customs in society do not pay any heed to it, even though with a lot of intellectual precision we would still consider it blood. Elsewhere Shaykh Ṣāni‘ī says that the person who determines this customary perception has to be the jurist, not the average person in society.3
Rebuttal: This argument can be understood through two scenarios:
1) Either that the religious texts, when they command us to maintain justice and not be oppressive, this is not referring to true justice – which is a reference to an ontological reality – rather it is a reference to what our societal norms and customs come to perceive. In this case there is no justification to prefer the very precise intellectual and rational analysis of something as just or unjust over societal perceptions.
2) Or we say that religious texts are indeed referring to true justice.
We have already shown that the religious texts are speaking of true justice and the first possibility is incorrect. The example of the blood is also not correct because real blood is always impure, whereas the reason why society may become heedless of a very small amount of blood is that they speculate that it is gone, however, if they were to know and be attentive to the fact that there is a drop of blood on something, society would still consider it an instance of impure blood.
Another inconsistency that Shaykh Ṣāni‘ī falls into with the claim that societal perceptions are preferred over the pure rational intellect’s is that in some cases jurists will end up giving a verdict for a matter which is against true justice simply because society perceives it to be just, while the precise intellect and experts may actually deem it to be unjust. This would imply that the divine law is telling us to engage in an act which is truly oppressive, while Shaykh Ṣāni‘ī himself says that the Sharī‘ah cannot be unjust and that intellectual judgement cannot be restricted by anything else.
Perhaps Shaykh Ṣāni‘ī can respond back by saying I only stick to these rules when there is no contradiction between pure rational and societal perceptions. If the rational intellectual analysis informs us that something is neutral, while societal perceptions say something is just or unjust, then in those cases societal perceptions are prioritized, but not if the rational intellect is saying something is unjust while society is saying it is just.
However, if he does say this, then this means if a religious text considers something to be just while society considers it to be unjust, then he cannot prioritize society’s perceptions since they are just a means to understand true certainty and they can be wrong on many occasions, whereas we have already addressed this issue earlier by arguing for the priority of the religious texts in this situation which are identifying true justice and injustice for us.
The Principle of Justice and Differentiating Between Certain and Speculative Texts
Shaykh Ṣāni‘ī places a limit on the use of the principle of justice and that is when he is confronted with texts which are widely transmitted (mutawātir) and clear in their meanings. In this case, he believes societal customs play no role.
Observations: We wish to analyze the claim and its implications in a bit more detail. If the source for the principle of justice is the practical intellect, then it is clear that there is no discussion on prioritizing a certain (qaṭ‘ī) text over the certain intellectual judgement, and if we choose not to prioritize the intellect in this case either, then both of these sources will drop as evidence for anything.
Thus the debate is not there, rather the concern is with Shaykh Ṣāni‘ī granting validity to societal perceptions. In this case, we can understand the claim and its implication in two ways:
1) That which the Qurān and Sunnah are commanding towards is true justice, while society’s perceptions merely play a role in uncovering (kāshifīyyah) this justice, and are probative, both in terms of the concept of justice and as well as its instances. This uncovering is speculative but probative and reliable. In this case, if this speculative and reliable perception contradicts certain evidence, certain evidence overcomes the speculative one.
However, if Shaykh Ṣāni‘ī accepts this understanding, then in cases where society perceives something to be just or oppressive, and these perceptions contradict solitary reports which are also probative, he has to accept that the reliability of both being negated due to tasāquṭ, not that society’s perceptions are preferred. This is because the assumption is that both are probative, speculative and uncover an aspect of truth, and there no evidence or indicator which leads us to prefer the speculative perceptions of society over a solitary report.
On the contrary, Shaykh Ṣāni‘ī himself acknowledges that society makes mistakes and it is upon us to understand these errors,4 but if this is the case then why can it not be mistaken when in conflict with a reliable solitary report? Elsewhere he says that at times society is not mistaken, but rather they have not understood the situation correctly and properly,5 but I do not see the difference between saying “society makes mistakes” versus saying “society has misunderstood something”; mistakes always occur due to some misunderstanding and ambiguity.
2) That which the Qurān and Sunnah are commanding towards is society’s perception of justice. If this is the case, there are two further scenarios:
i) Either we claim that society’s perceptions and the pure rational perceptions of justice are always in accordance with true justice. However, this is not only near impossible to prove, in fact, the opposite of it – meaning they do not always correspond with one another – is more obvious.
ii) Or we claim that there is no necessary relationship between the two perceptions, and this is what Shaykh Ṣāni‘ī himself acknowledges, then in this case we will prioritize the evidence which is certain over society because the latter can be restricted.
If this is what Shaykh Ṣāni‘ī agrees with, then he will have to acknowledge that all of the solitary reports as well as any other speculative evidence can be restricted by society, but this is something he himself has not agreed with. In fact, if there is a conflict of such between a solitary report and the speculative perception of society, both evidence will lose their probative force, not that one of them will be prioritized over the other (assuming there is no way to reconcile between them).
In fact, we have another general observation on Shaykh Ṣāni‘ī. Given that the vast majority of the evidence we are dealing with has prima-facie in having an absolute nature even from the perspective of time – meaning the religious texts are assumed to be eternally true (iṭlāq azamānī) on face-value as per their own beliefs – then he must also acknowledge that the absolute nature of the religious texts from the perspective of time is standing on fragile grounds. In other words, he will have to acknowledge that this absolute nature can possibly be negated for all religious texts whenever it conflicts with the perceptions of society – unless there are other certain evidence and contextual indicators that establish for him that a specific text is eternally true.
The Principle of Justice and Social Chaos
One of the critiques put forth against the principle of justice is that it is so subjective and relative that if every jurist were to use and apply it, it will result in chaos in society.
Response: We can defend Shaykh Ṣāni‘ī against this critique by saying that just because the principle of justice is subjective and results in chaos or difference of opinion in law, this is not an argument against the invalidity of the principle. The validity of the principle is not subject to whether it leads to differences of opinions or not.
Secondly, Shaykh Ṣāni‘ī himself responds to this by saying that there are numerous other principles in ijtihād that have the same consequence. For example, the principle of Nafī al-Ḍarar or Nafī al-Ḥaraj, or principle of Ḍarūrah and Iḍṭirār, all of these result in disputes and differences of opinion either amongst jurists or amongst their followers.
However, what we do want to emphasize here is that even though social chaos is not evidence for the invalidity of the principle, we do have to contemplate over the fact that this principle the way its proponents defend it, alters the relationship between the Sharī‘ah and people, where the former submits itself to the ethical perceptions of people, as opposed to people submitting themselves to the religious texts. In this case, what role is the Sharī‘ah meant to play in our social, economic, and political life? I am not saying that this invalidates the principle, rather this is something to seriously consider and reflect upon.
The Evidence for the Principle of Justice and Its Application on Other Concepts
As a further critique of the proponents of the principle of justice, I want to apply the same method which was used by them and apply it to other similar concepts and see whether the proponents will stick to its implications. For example, we have numerous verses commanding us to do good:
[22:77] O you who have believed, bow and prostrate and worship your Lord and do good – that you may succeed.
[2:110] And establish prayer and give zakah, and whatever good you put forward for yourselves – you will find it with Allah. Indeed, Allah of what you do, is Seeing.
[2:215] They ask you, [O Muhammad], what they should spend. Say, “Whatever you spend of good is [to be] for parents and relatives and orphans and the needy and the traveler. And whatever you do of good – indeed, Allah is Knowing of it.”
[3:30] The Day every soul will find what it has done of good present [before it] and what it has done of evil, it will wish that between itself and that [evil] was a great distance. And Allah warns you of Himself, and Allah is Kind to [His] servants.”
And many more: [3:114-115], [4:149], [2:148], [5:48], [21:73].
These verses alongside the numerous narrations command humans to do good, and if we were to take the approach of Shaykh Ṣāni‘ī then we would have to say that the perceptions of good have been delegated to society and with that, we can restrict the prima-facie of any textual religious evidence with whatever society sees as good or bad. The point being made here is that if the principle of justice is meant to be determined by society’s perceptions, then it is not restricted to justice but in fact, it should be inclusive of many other concepts as well – and it seems far-fetched that proponents of the principle of justice will go this extent.
Our View on the Principle of Justice
1. When you look at concepts such ‘adl, khayr, ma‘rūf, qisṭ, birr, ẓulm, jawr, sharr etc. as they appear in the Qurān, we believe these are concepts that were understood by people. These are not religious terms being used in the Qurān, rather we have to understand them in the language that the audience – the Arabs – understood and used these words in. The Arabs understood what these terms meant; these were not mysterious religious jargon. In fact, society also had general experience with the instances of these concepts and if they had no knowledge of any of its instances, the absolute nature of these words would become meaningless and would require further explanation to explain what justice is meant to look like in external reality, or what oppression looks like in external reality, albeit just one instance of it. Since these instances are not mentioned in these verses, it appears that it is relying on at least some understanding of the audience at the time.
This means that the principle of justice in its basic notion is valid and humans have been delegated some extent of authority to determine its instances.
Perhaps Shāṭibī is the first scholar to point this approach to exegesis when he argues that if the Qurān has used terms without explicitly referring to any instances, then these words are simply being used in their prima-facie meaning and its instances are whatever the audience had a familiarity with. Words like ‘adl, iḥsān, ‘afw, ṣabr, ẓulm, faḥshā’, munkar etc. all fall under this rule. However, words that are mentioned with some sort of interference in their meanings are not from this category, and Shāṭibī believes these are usually words that describe acts of worship.6
2. Despite this, it does not mean that religion has no role in altering some perceptions of what constitutes justice and injustice. Every religion, philosophical school of thought, different influential intellectuals claim to want to establish justice and remove injustice, they encourage others to maintain justice, but this does not mean that these groups or individuals do not alter perceptions of what constitutes justices and injustice as per their worldviews or philosophies. This is the case with any movement and group, and Islam is not an exception to this. As such these verses have not delegated authority to society to such an extent that religion itself cannot come and define certain things as just or unjust, contrary to society’s perceptions.
3. All religious movements, reformist movements, intellectual movements etc. have an opinion and conception of justice and injustice. This is particularly true for religions, for religions have the role of freeing humans from corruption, misguidance, and spiritual pollution. In this case, it is only expected and normal that in order to return humans back to their pure primordial disposition (fiṭrah) which is prone to be polluted over time, that religion will inform them of what is just and unjust.
This means that religion will come and alter human perceptions of truth and good, particularly when they have been altered by carnal desires and ignorance. This is perhaps why the Qurān emphasizes again and again that Allah (swt) knows, while you do not know.
In this case, there is no reason for anyone to look at other movements that claim to be calling towards justice and pay heed to them simply on the account that they are calling towards justice. If the Marxists were calling towards justice, this is of no relevance, because every reform movement calls towards justice. What is important is to understand the worldview of Marxism – or any other movement calling for reform – and the implications of what their justice entails, alongside their methodology and limits.
This is why it is more logical for us to first go to the religious texts themselves, as the religion of Islam has also come to reform us and see what these texts have to say. We should understand the meaning of justice through these religious texts and look at the different instances that it considers justice or oppression. Perhaps it is for this reason that Shahīd Ṣadr says:
While including social justice in its basic principles, which constitute its economic doctrine, Islam did not adopt social justice in its general sense nor did it call for it as being open to every interpretation nor did it leave it to the human societies which differ in their views about social justice with the difference in their ideas about civilization and their understanding about life. But Islam has defined its meaning and crystalized by means of a certain social plan and has been able to embody this planning in a living social reality all of whose arteries and veins pulsate with the Islamic concept of justice.
Thus, it is not sufficient to know Islam’s call for social justice but we must also have knowledge of its detailed pictures about justice and its peculiar Islamic sense.7
4. Based on all that has been said, we must first and foremost go to the religion itself to understand and learn what it is offering us in terms of its vision regarding justice in this world, to precisely understand the concept of justice it is preaching, the instances of justice it is commanding us to maintain and injustices it is prohibiting us from. This has to be done without any presuppositions regarding religion based on our own social perceptions that we have grown up with, or any other assumptions that we may hold regarding religion and what it ought to say and preach.
This is what one would do when wanting to understand the teachings of any other religion, school of thought, philosophical movement etc. You have to go to their founders, their proponents, their books or sources that define their movement to see how they are defining justice, what perceptions they are forming for humanity and societies. It is for this reason why societal perceptions are not authoritative for fixing the religious text and making it just if society perceives it to be unjust, rather it is the job of the religious texts to fix our perceptions (except in very few exceptional cases).
5. With our aforementioned explanation, one may genuinely be wondering, is this not a very Asha‘rī approach to religion and theology? Also, how does this reconcile with what you have said in the first point where you acknowledged that society understands and knows the instances of justice and injustice, thus the Qurānic verses make sense for them.
We do not believe this is an Asha‘rī approach to religion and below is an explanation of our methodology:
i) We rely on induction – as was done by Shāṭibī– and bring all the certain evidence and traditions together and look at how justice and injustice have been defined, discussed, and elaborated on. Then we go to the second set of evidence which is still highly reliable but does not reach the degree of the first set, and we investigate them as well. After this study, we conclude that according to Islam justice is X, in which case if a certain report goes against this definition and instance, we cast it aside, or at the very least we doubt its utterance or question its absolute nature. Unfortunately, this extensive work has not really been done properly, though some have tried.
ii) If a piece of evidence goes against the rational certain (‘aqlī qaṭ‘ī yaqīnī) perception, not society’s perceptions, then once again we cast the evidence aside or find a way to reconcile it. This is because intellectual conclusions act as a qarīna lubbī which informs us that religion cannot go against these conclusions of the practical intellect.
iii) If we find that a certain religious text in its absolute form goes against the general subconscious (irtikāz) of the rational laity – not any specific society’s perceptions – where the rational laity around the world generally does not differ on something being just or unjust regardless of time and place, then these perceptions are also prioritized over the religious texts. The only exception would be if there is a significantly large number of religious texts on a matter and their content is very clearly trying to go against the practice of the rational laity.
iv) If at the time of revelation or transmission of a ḥadīth, a certain perception and instance of justice or injustice was very clearly ingrained in the minds of the audience, and if we come across speculative evidence that alters this perception, then once again we will be justified in casting that speculative evidence aside. This is because if the perception presented in the weaker evidence was true, then we would have seen a lot more narrations on the subject. A very few narrations on the matter signifies a lack of emphasis on the subject, and it makes as cast doubt on the reliability of these narrations.
v) If on any subject matter we find that religion is not in conflict or contradiction with any societal or rational perception and judgement, then over here societal perceptions are the source to be referred to. If however societal perceptions conflict with the rational judgements of what is just or unjust, rational judgements are preferred over society’s perceptions.
vi) All of what we have said above only helps us in negating, not in attributing anything to the religion. In other words, if we come across some new instance and phenomenon that has not been mentioned in the religious texts, all we can say is that it is not considered just according to Islam, or it is not considered unjust according to Islam. However, we cannot come across some new phenomenon that has not been mentioned or addressed in the religious texts and then based on our societal and rational perceptions we consider it just according to Islam, or unjust according to Islam. This is based on our conclusion on the discussion of the Comprehensiveness of the Shari‘ah where we said these attributive statements cannot be attributed to religion, rather they have to be attributed to society, or the human intellect.
- For a detailed description and study of al-mustaqillāt al-‘aqlīyyah in English, refer to Ali-Reza Bhojani’s thesis: Moral Rationalism and Independent rationality as a source of Sharī ͑a in Shī ͑ī uṣūl al-fiqh; In search of an ͑Adliyya reading of Sharī ͑a. Download here: http://etheses.dur.ac.uk/8449/
- Qā‘ideh ‘Adālāt dar Fiqh Imāmīyyeh, pg. 257.
- Ibid., pg. 253-254.
- Ibid., pg. 284-286.
- Ibid., pg. 284, 299-300.
- Al-Muwāfaqāt, vol. 3, pgs. 235-240, 335, 338-367; vol. 4, pgs. 256; vol. 5, pg. 234-249.
- Our Economics (English translation of Iqtiṣāduna), vol. 1, part 2, pg. 58. Published by WOFIS.