The following is a speech delivered by Ustad Mohammad Soroush Mahallati at a conference in commemoration of the late Dr. Davoud Feyrahi (d. 2020) on the anniversary of his passing.

Ustad Mohammad Soroush Mahallati

Introduction

One year has passed since the death of the beloved professor and distinguished researcher, Ḥujjat al-Islām wa al-Muslimīn Dr. Feyrahi. Now, in this meeting, there is an opportunity to discuss and study the intellectual project of this illustrious professor. Feyrahi took great strides in researching and studying political fiqh and wrote valuable works. Perhaps there is no issue today in the realm of political fiqh as important to us as that of how political fiqh can be advanced, brought up-to-date and made to address contemporary issues. To answer this question, Ustad Feyrahi devoted years of intellectual effort and labour. Today, the research of this great scholar is not the subject of my discussion. Instead, I will mention what must be investigated following his research.

Dr. Feyrahi’s approach and method was that he would select elements from culture, politics and fiqh—such as the essence of government, the essence of wilāyat and so on—and then investigate and examine each of them. He endeavoured to find paths for the transformation and evolution of political fiqh in accordance with Islamic heritage, and especially the research that has been done in the last century by great scholars such as Nāʾīnī. This is one approach and it has had some success, albeit with some problems. I would like to take this opportunity to suggest a second approach—though only as a possibility and an idea which must be comprehensively researched and investigated—to reach this objective.

That idea is whether we can make the element of ‘reason’ (ʿaql) in political fiqh more active than in the past. Whether we can develop and gradually perfect our political fiqh in accordance with a rational and rationalist backing. The foundational principle that Imāmī scholars have accepted by affirming the authoritativeness (ḥujjīya) of reason alongside the Qur’ān and Sunna, provides the basis the background of this discussion. In this regard, of course, there is no difference between political fiqh and other areas of fiqh. Our jurists make use of four sources in fiqh, of which reason is one and can be used in political fiqh. There is no dispute in this. However, we know that the application of reason in different areas of fiqh is not uniform. In some subjects, the application of reason declines to a minimalist extent, such as acts of worship (ʿibādāt) where reason interferes less, but in political fiqh, the role of reason can be seen as maximalist.

The problem that exists here is that, firstly, reason and rational rulings are usually attributed exclusively to independent rationality (­mustaqillāt al-ʿaqlīyya) and moral rationalism (ḥusn wa al-qubḥ al-ʿaqlī). Secondly, these independent rational indicators (­mustaqillāt al-ʿaqlīyya) are rational rulings that are few and rare. Therefore, the scope of rational judgement in political fiqh would not be extensive. This is a reality that will be clearly understood by anyone who has studied fiqhī issues.

The question that can be reflected upon is whether this scope can be expanded? And if the answer is positive, then how can the scope and role of reason be made more extensive than before?

What I propose—as a possibility and hypothesis—here is that, yes, this can be done, and I will suggest a method to expand the role of reason in political fiqh.

The Authority of Solitary Narrations: A Case Study

Before I present this suggestion, I will give an example as an introduction that can clarify my discussion. In the past, we have been successful in expanding the scope of rational rulings in other areas of fiqh and even in making these rulings predominant over the legal (sharʿī) textual evidences.

The authoritativeness of solitary reports (ḥujjīyat al-khabar al-wāḥid) in legal theory is an old and deep-rooted issue. Initially, our great scholars such as Shaykh Mufīd and Sayyid Murtaḍa did not accept the authoritativeness of solitary reports and later other greats such as Shaykh Ṭūsī accepted it. However, following that in different centuries, our scholars considered a solitary report authoritative on the basis that it is a taʿabbudī (devotional) evidence. For example, they considered the evidence for its authority to be the verse of nabaʾ:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَإٍ فَتَبَيَّنُوا           

O believers, if an evildoer brings you any news, verify it (49:6)

They understood this verse to mean that if a report was from someone who is not an evildoer, then verification and research is not necessary, and one must accept the report (i.e. the authoritativeness of a just person’s report). With such textual (naqlī) evidence, the solitary report became authoritative. Muḥaqqiq, ʿAllāmah, and other scholars accepted it.

Later, in recent periods, a development occurred where our scholars stated that the authoritativeness of a solitary report does not have a taʿabbudī dimension. Instead, they presented rational evidence for its authority. Namely, that the view of rational people is that a just person’s report is accepted, and they are not accused of lying in their reporting. This was a transformation in which an issue that was solely textual in the past changed into a rational issue; an issue that was previously based on the Book and Sunna or the custom of the religious (sīra al-mutasharriʿa) and the Imāmīs, now became an issue based on the custom of rational people.

Our scholars did not suffice with this extent and took another step forward. In this second step, they stated that the custom of rational people (banāʾ al-ʿuqalā) is predominant over the texts (Qur’ānic verses and narrations) and that the latter must be understood and interpreted based on the former in the first place. Given that the custom of rational people was used as a foundational principle and the texts were cited in the second degree, the consequence was that the apparent meaning of the evidences were interpreted in favour of the custom of rational people. For example, it was initially said that the report of a just person (with the existing restricted interpretation of justice) is authoritative, but later it was said that the custom of rational people is that the report of a trustworthy (thiqa) person is reliable, and trustworthiness took the place of justice. The result of this was that someone who is deviant in their doctrine, creed and religion can still be trustworthy, even if they are not just. That person’s report attains reliability since the report of a trustworthy person (khabar al-thiqa) is authoritative.

On the other hand, they created a restriction whereby sometimes a person may be just but lacks trustworthiness, so his report is not reliable. They also added another proviso that it is possible the report of a just person is not authoritative because it has been opposed by the scholars and the custom of rational people is that if the report of a just person is opposed in practice, then it becomes unreliable.

All these developments were derived from the custom of rational people alone, despite these conditions and provisos not existing in the texts.

This continued until the recent period where scholars such as Āyatullāh Sayyid Aḥmad Khwānsārī said that if the custom of rational people is the basis for the authority of solitary reports, then rational people do not act according to solitary reports in important matters. For murder and the spilling of blood, a speculative solitary report is not reliable among rational people. Therefore, if there are narrations pertaining to these important affairs and they are solitary reports (even if the narrator is trustworthy) then they are not to be acted on.

A great deal of change occurred in this one issue, transforming it from an issue based on textual proof (naṣṣ) to one based on reason (ʿaql).^[1] Then, this rational proof became predominant over the transmitted proof, ensuring the development and restriction of the latter.

This occurred once with the issue of solitary reports but the same transformation happened again in the scope of all amārāt (probabilistic indicators), through which they were all transformed from being textual and taʿabbudī to rationally based. For example, the authority of apparent meanings of verses (ḥujjīyat al-ẓawāhir) became a rational issue based on the custom of rational people; yad (hand) being an indicator (amāra) for God’s dominion became a rational issue; sūq al-muslimīn became a matter of rational amārāt and many other issues. Despite such issues existing in the verses and narrations, they were all made subject to the custom of rational people. The texts and narrations were taken from the front-row and seated in the second-row while the custom of rational people was given the front-row. It reached a point where the late Nāʾīnī would say in legal theory that:

 الطرق المبحوث عنها في المقام كلها طرق عقلائية عرفية عليها يدور رحى معاشهم ومقاصدهم ومعاشراتهم، وليس فيما بأيدينا من الطرق ما يكون اختراعية شرعية…

All of the paths (solitary reports or otherwise) are rational and customary (ʿurfīyya) paths around which their livelihood, aims and social relations revolve. We do not have any paths that are sharʿī and invented [by the religion].^[2]

After Muḥaqqiq Nāʾīnī, Imām Khumaynī continued this same trajectory and said:

أنَّ جميع الأمارات الشرعيّة إنّما هي أمارات عقلائيّة أمضاها الشارع، وليس فيها ما تكون حُجّيتها بتأسيس من الشرع

All the sharʿī amārāt are only rational amārāt that are signed (i.e. endorsed) by the Lawgiver. There is nothing within them whose authoritativeness is established by the Law.^[3]

These were not statements that could be seen in the works of the likes of Shaykh Ṭūsī. Even in the works of those such as ʿAllamāh Ḥillī, these ideas did not exist in this form.

Later, Imām Khumaynī said:

ليس في الآيات و الأخبار التي استدلّوا بها لحجيّتها دليل يصحّ الاعتماد عليه في الترخيص في العمل بالأمارات بنحو الإطلاق، و إنّما هي أدلّة في موارد خاصّة و أشخاص معلومة و قضايا الشخصيّة لا يمكن أن تكون ميزانا لشي‌ء

There is no evidence in the verses and reports used to derive the authoritativeness [of the amārāt] that can be relied upon to authorise acting by the amārāt in an unrestricted manner. Rather, they are evidences pertaining to specific instances and particular individuals […] and personal cases cannot be a criterion for anything^[4]

He says that if we take away reason and the custom of rational people from these texts, such that these texts are to have authority by themselves, and we rely upon what they indicate, then all of these amārāt will be nullified. That is because these texts pertain to circumstantial and personal cases, from which it is not possible to derive a general principle.

Islamic Rulings as a Means to Justice

This is one experience of transformation. Now, what I wish to say is, can we not repeat this experience in other intellectual discussions (such as political fiqh)? If this is to be repeated, it must first be clarified whether the contents of our religious texts are instrumental or not. If they are instrumental, then what are they a means to? What do these texts want to lead us to? If we are able to give a positive answer to this question, certain results are entailed (in the same way that certain results were entailed in the discussion of solitary reports).

Here, the question is can it be accepted that rulings in political fiqh are a means (ṭarīq), and if so, then what is this instrumentality (ṭarīqīyyat) for? At this point, we must establish a premise. Firstly, are rulings of the Sharīʿa based on objectives and do they pursue an end? Secondly, can we perceive and discern these objectives? The answer is yes, the purpose of these social and political rulings is to achieve justice, and in many cases, justice is in the realm of reason and the understanding of rational people. If this is so, we must contemplate on what level of justice these rulings, in our time and conditions, lead us to. If zakāt is ordained by the Sharīʿa and our narrations state that with zakāt, poverty will not remain and the livelihoods of the poor will be completely secured, then this is the purpose and it must be determined what kind of zakāt can eliminate poverty. Can the zakāt that has been made exclusive to nine items secure this objective (which the Sharīʿa itself has ordained)? If it cannot fulfil this objective, what must be done?

There is a very long statement by Imām Khumaynī which has unfortunately not received sufficient consideration and contemplation. In his discussions of wilāyat al-faqīh, he uses the following weighty expression:

الأحكام مطلوبات بالعرض، وامور آلية لإجرائها وبسط العدالة

The rulings are desired secondarily as a means; they are mechanisms to implement [Islamic laws] and spread justice.^[5]

Ever since this instrumental nature of fiqh as a means of reaching the lofty objective of justice was neglected, our fiqh has been held back and suffered stagnation. We severed this link between the premise and the conclusion that follows it. On the other hand, what was previously a tool and merely instrumental to an end became desired in and of itself (maṭlūb bi-l-iṣāla), whereas Imām Khumaynī said that rulings are desired as a means and as tools. If we utilise these rulings and face a problem in arriving at justice, we must re-think their expansiveness and restrictedness.

This is the same as the previous discussion of instrumentality and solitary reports, whereby they firstly relied on texts to argue for the authority of the report of a just person (khabar ʿādil), and then the custom of rational people substituted the condition of ‘just’ with ‘trustworthy’ (thiqa)—and there is a vast difference between justice and trustworthiness.

Today, we are faced with different issues in law and politics. What is important is to consider if we can derive unrestricted and general conclusions from these texts while the principle of the custom of rational people exists. There are two discussions that follow.

Firstly, we must determine our legal duty in the areas in which there is no textual decree (mā lā naṣṣ fīh). Our great scholars did this to some degree when drafting the Constitution in 1979. Many jurists and mujtahids were present, but they voted for Article 32 with a decisive majority. This constitutional article is related to adjudication, but this ruling is neither mentioned in the texts (verses and narrations) nor in the religious edicts (fatāwā) of previous scholars. However, our mujtahids and scholars bravely discerned that this ruling is necessary to achieve justice and that this law must be ratified.

Article 32:  No one may be arrested unless by order of and in the manner provided for by law. In case of an arrest, the accused person must immediately be served with in writing and made to understand the charges he is accused of and the grounds thereof. The preliminary file must be sent to competent judicial authorities within a maximum period of 24 hours and the trial proceedings must be started within the shortest period of time. The violator of this article shall be punished in accordance with the provisions of law.^[6]

If a person is arrested, they must immediately be communicated to 1) the charges they are accused of, 2) the reasons for the accusation, 3) in writing, and 4) without delay. Which religious text or edict of a jurist have we had that if a person is arrested, they must immediately be served in writing with the charges and the reasons for their accusation?

It was an understanding of the conditions of society and the necessity of justice that led the jurists and mujtahids to this point. Whether we have acted according to this article and our experience in the last 40 years is another discussion. The issue of the duty of punishing violators of this article, who has been punished and statistics around this is also another discussion. But the proposal of this article itself was a great step in favour of justice.

Humanity today is faced with topics such as the concentration of power and the role this plays in producing corruption. Rational people (ʿuqalā) have important things to say in this regard while we seek to solve the problem of the concentration of power with sharʿī texts and with the absolute and unrestricted nature of the Maqbūla of ʿUmar b. Ḥanẓala! Whilst such absolute and unrestricted interpretations (iṭlāqāt) are subject to foundations that exist among rational people, because sometimes absolute interpretations cause problems in achieving the objective (which is justice). In this case, is an absolute understanding of the text (as an evidence that is entailed by the apparent textual meaning and with custom being to take an absolute understanding) also taken?! If so, what happens to the instrumental and secondary nature of rulings that Imām Khumaynī mentioned?! If this is the case, we must sever the connection between this thing that is desired as a means (maṭlūb bi-l-ʿaradh) and that which is desired in essence (maṭlūb bi-l-dhāt)! And is it permissible for us to make that which is desired as a means be desired in and of itself and claim that this form of governance is intrinsically desirable, whether it establishes justice or not, and even if it causes corruption and oppression in society?! Can a jurist be obliged to do this?

The problem that exists is that we have experienced this approach and method of the discussion elsewhere (as I mentioned) and found it to be successful and committed to its requisites too, so why should we not accept it in this?! Do we have different foundations?! The rational people of the world are in consensus that the supervision and control of power is effective in reducing corruption and achieving justice. In fiqh, can we interpret the religious texts in such a way, from an absolute and unrestricted perspective, that requires negating the supervision of power?! Such a thing is impossible. Of course, the various dimensions of this discussion must be assessed in other gatherings with greater opportunity.

Footnotes

[1] Although what is intended here is the general meaning of reason which also encompasses rational rulings, not solely in the realm of ­mustaqillāt al-ʿaqlīyya.

[2] Muḥammad Ḥusayn Nāʾīnī, Fawāʾid al-uṣūl, v3, p. 91.

[3] Imām Khumaynī, al-Istiṣḥāb, p. 150.

[4] Imām Khumaynī, Anwār al-hidāya, v1, p. 340.

[5] Imām Khumaynī, Kitāb al-bayʿ, v2, p. 672.

[6] The Constitution of the Islamic Republic of Iran: https://en.parliran.ir//UploadedData/89/Contents/original/635996064834543008.pdf