Utilizing the Capacity of Fiqh in New Circumstances and the Necessity of Transferring the Experience of Innovative Ijtihad to the Intellectual Generation

This was a lecture given by Ustad Soroush Mahallati, in a meeting with the Members of the Islamic Association of University Lecturers with several scholars and jurists in the city of Qom, on the occasion of the Seminary-University Unity Day.

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The teachers and researchers (before me) have presented on several topics and each of these topics can be discussed in a lot more depth. I want to discuss a general point, which if we can arrive at some agreement on, we can take further steps. In these gatherings, we must first clarify our priorities: Are we focused on intellectual exploration or political maneuvering? In other words, do we aim to analyze, examine, and solve a fundamental intellectual issue, or are we seeking to resolve a political problem? Of course, there is no inherent contradiction between the two, and intellectual exploration may also have implications for political matters. However, I believe our primary responsibility as seminary students is the former—engaging in intellectual exploration and articulating principles and foundations.

I believe that among all groups, parties, and organizations, the primary responsibility of the Islamic Association of University Lecturers is the first matter [intellectual exploration]. Otherwise, political maneuvering is common to all parties and groups and is not exclusive to you. What distinguishes this group is the capacity for deep intellectual engagement here, which may not necessarily occur elsewhere.

For example, regarding the current issue of the hijab law, different parties, groups, and individuals can take a stance. However, the expectation from you is not merely to take a stance. Amongst you are sociology professors who must examine this issue from a sociological perspective and psychology professors who must analyze it from a psychological viewpoint. The same applies to other fields.

The second point is that religion and religiosity are defined across three domains: ‘theological matters,’ ‘ethical matters,’ and ‘jurisprudential issues.’ In our time, the most significant challenges pertain to the third domain. While there are also questions in theological and ethical matters, the comprehensive nature of Islam—encompassing rulings on economic, political, governmental, educational, and other issues—has currently presented the greatest challenges in our individual and social lives, with most questions arising in this area.

The issue of governance and authority also falls under this third domain. There are two approaches: The first approach is that this aspect of religion is no longer viable, and we should focus on a philosophical, mystical, and ethical religiosity, drawing from those parts of religious sources, as the era of the third domain has ended. Some religious intellectuals have concluded that jurisprudence suffers from an incurable illness, and we have no hope of it getting cured either.

However, the second approach is that there are capacities within jurisprudence that can be utilized to address these challenges and overcome them.

We insist and firmly uphold the second approach. The issue is not limited to governance alone; religion extends into various aspects of life. In the past half-century, some of our great scholars have pursued this path and made efforts in this direction. Scholars like Shahid Mutahhari, Shahid Beheshti, Sayyid Muhammad Baqir al-Sadr, and Imam Musa al-Sadr worked to create harmony between religious rulings and contemporary life while maintaining the presence of jurisprudence.

Another important point is that, as Muslims, we cannot separate Shariah from Islam. In a faith like Christianity, it might be possible for someone to be a Christian while rejecting or disregarding Shariah. However, for someone to reject a portion of our ahadith or cast doubt on history and tradition, they will still have to agree on a central text—the Quran. If we accept the Quran as a foundation, we will realize that a significant portion of it consists of legal rulings. Look at how many verses about marriage, inheritance and other worldly matters are in the Quran. Allah (swt) has revealed these verses in a way that at times makes the job of the scholar very difficult. Consider this example regarding inheritance:

يُوصِيكُمُ ٱللَّهُ فِىٓ أَوْلَـٰدِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ ٱلْأُنثَيَيْنِ ۚ فَإِن كُنَّ نِسَآءًۭ فَوْقَ ٱثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ ۖ وَإِن كَانَتْ وَٰحِدَةًۭ فَلَهَا ٱلنِّصْفُ ۚ وَلِأَبَوَيْهِ لِكُلِّ وَٰحِدٍۢ مِّنْهُمَا ٱلسُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُۥ وَلَدٌۭ ۚ فَإِن لَّمْ يَكُن لَّهُۥ وَلَدٌۭ وَوَرِثَهُۥٓ أَبَوَاهُ فَلِأُمِّهِ ٱلثُّلُثُ ۚ فَإِن كَانَ لَهُۥٓ إِخْوَةٌۭ فَلِأُمِّهِ ٱلسُّدُسُ ۚ مِنۢ بَعْدِ وَصِيَّةٍۢ يُوصِى بِهَآ أَوْ دَيْنٍ ۗ ءَابَآؤُكُمْ وَأَبْنَآؤُكُمْ لَا تَدْرُونَ أَيُّهُمْ أَقْرَبُ لَكُمْ نَفْعًۭا ۚ فَرِيضَةًۭ مِّنَ ٱللَّهِ ۗ إِنَّ ٱللَّهَ كَانَ عَلِيمًا حَكِيمًۭا ١١

[5:11] Allah directs you concerning your children: for a male there is a share equal to that of two females. But, if they are (only) women, more than two, then they get two-thirds of what one leaves behind. If she is one, she gets one-half. As for his parents, for each of them, there is one-sixth of what he leaves in case he has a child. But, if he has no child and his parents have inherited him, then his mother gets one-third. If he has some brothers (or sisters), his mother gets one-sixth, all after (settling) the will he might have made, or a debt. You do not know who, out of your fathers and your sons, is closer to you in benefiting (you). All this is determined by Allah. Surely, Allah is All-Knowing, All-Wise.

۞ وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَٰجُكُمْ إِن لَّمْ يَكُن لَّهُنَّ وَلَدٌۭ ۚ فَإِن كَانَ لَهُنَّ وَلَدٌۭ فَلَكُمُ ٱلرُّبُعُ مِمَّا تَرَكْنَ ۚ مِنۢ بَعْدِ وَصِيَّةٍۢ يُوصِينَ بِهَآ أَوْ دَيْنٍۢ ۚ وَلَهُنَّ ٱلرُّبُعُ مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدٌۭ ۚ فَإِن كَانَ لَكُمْ وَلَدٌۭ فَلَهُنَّ ٱلثُّمُنُ مِمَّا تَرَكْتُم ۚ مِّنۢ بَعْدِ وَصِيَّةٍۢ تُوصُونَ بِهَآ أَوْ دَيْنٍۢ ۗ وَإِن كَانَ رَجُلٌۭ يُورَثُ كَلَـٰلَةً أَوِ ٱمْرَأَةٌۭ وَلَهُۥٓ أَخٌ أَوْ أُخْتٌۭ فَلِكُلِّ وَٰحِدٍۢ مِّنْهُمَا ٱلسُّدُسُ ۚ فَإِن كَانُوٓا۟ أَكْثَرَ مِن ذَٰلِكَ فَهُمْ شُرَكَآءُ فِى ٱلثُّلُثِ ۚ مِنۢ بَعْدِ وَصِيَّةٍۢ يُوصَىٰ بِهَآ أَوْ دَيْنٍ غَيْرَ مُضَآرٍّۢ ۚ وَصِيَّةًۭ مِّنَ ٱللَّهِ ۗ وَٱللَّهُ عَلِيمٌ حَلِيمٌۭ ١٢

[5:12] For you there is one-half of what your wives leave behind, in case they have no child. But, if they have a child, you get one-fourth of what they leave, after (settling) the will they might have made, or a debt. For them (the wives) there is one-fourth of what you leave behind, in case you have no child. But, if you have a child, they get one eighth of what you leave, after (settling) the will you might have made, or a debt. And if a man or a woman is Kalālah (i.e. has neither parents alive, nor children) and has a brother or a sister, then each one of them will get one-sixth. However, if they are more than that, they will be sharers in one-third, after (settling) the will that might have been made, or a debt, provided that the will must not be intended to harm anyone. This is a direction from Allah. Allah is All-Knowing, Forbearing.

تِلْكَ حُدُودُ ٱللَّهِ ۚ وَمَن يُطِعِ ٱللَّهَ وَرَسُولَهُۥ يُدْخِلْهُ جَنَّـٰتٍۢ تَجْرِى مِن تَحْتِهَا ٱلْأَنْهَـٰرُ خَـٰلِدِينَ فِيهَا ۚ وَذَٰلِكَ ٱلْفَوْزُ ٱلْعَظِيمُ ١٣

[5:13] These are the limits set by Allah. Whoever obeys Allah and His Messenger, He will admit him to gardens beneath which rivers flow, where he will live forever. That is a great success.

These verses speak about the details of inheritance of men, women, children and so on. Allah (swt) says these are the limits set by Him (swt) and that they must be obeyed for one to enter heaven, or else they will enter hellfire.

Another example is from Surah Baqarah:

وَٱلْمُطَلَّقَـٰتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَـٰثَةَ قُرُوٓءٍۢ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ ٱللَّهُ فِىٓ أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِٱللَّهِ وَٱلْيَوْمِ ٱلْـَٔاخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِى ذَٰلِكَ إِنْ أَرَادُوٓا۟ إِصْلَـٰحًۭا ۚ وَلَهُنَّ مِثْلُ ٱلَّذِى عَلَيْهِنَّ بِٱلْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌۭ ۗ وَٱللَّهُ عَزِيزٌ حَكِيمٌ ٢٢٨

[2:228] Divorced women shall keep themselves waiting for three periods, and it is not permissible for them to conceal what Allah has created in their wombs, if they believe in Allah and in the Last Day. Their husbands are best entitled to take them back in the meantime, if they want a settlement. Women have rights similar to what they owe in recognized manner though for men there is a step above them. Allah is Mighty, Wise.

ٱلطَّلَـٰقُ مَرَّتَانِ ۖ فَإِمْسَاكٌۢ بِمَعْرُوفٍ أَوْ تَسْرِيحٌۢ بِإِحْسَـٰنٍۢ ۗ وَلَا يَحِلُّ لَكُمْ أَن تَأْخُذُوا۟ مِمَّآ ءَاتَيْتُمُوهُنَّ شَيْـًٔا إِلَّآ أَن يَخَافَآ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ ۖ فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ ٱللَّهِ فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا ٱفْتَدَتْ بِهِۦ ۗ تِلْكَ حُدُودُ ٱللَّهِ فَلَا تَعْتَدُوهَا ۚ وَمَن يَتَعَدَّ حُدُودَ ٱللَّهِ فَأُو۟لَـٰٓئِكَ هُمُ ٱلظَّـٰلِمُونَ ٢٢٩

[2:229] Divorce is twice; then either to retain in all fairness, or to release nicely. It is not lawful for you to take back anything from what you have given them, unless both apprehend that they would not be able to maintain the limits set by Allah. Now, if you apprehend that they would not maintain the limits set by Allah, then, there is no sin on them in what she gives up to secure her release. These are the limits set by Allah. Therefore, do not exceed them. Whosoever exceeds the limits set by Allah, then, those are the transgressors.

This is the religion we follow, where Allah (swt) describes these laws as the hudud (limits) and not abiding by them is a transgression. In fact even if a non-Muslim were to read about this religion and read the Quran, they will conclude that this religion or the revealer of this religion is very sensitive and serious about certain laws and regulations. Thus, whether viewed from an internal or external religious perspective, whether with belief or skepticism, eliminating Shariah from this religion is not possible.

Sometimes, there might be a kind of incompatibility between these rulings—which have valid and sufficient evidence—and human life. What should be done in such cases? Here, we believe that there are capacities within this religion that, if utilized, can reduce these incompatibilities and resolve the issues. The first capacity is that, while the rulings in this religion are stated by Allah, the method of implementation is entrusted to us, and the Shariah does not interfere. For example, in the case of hijab, its ruling is mentioned in the Quran, regardless of whether you believe the hijab includes the head or not – our jurists say the head is also included – at the end of the day the Quran still puts gives a limit on the clothing of women. However, how is this ruling to be implemented in society and who is responsible for it? Should it be the parliament, should it be the religious police, should be left to ‘urf (customs), should the government even interfere in this or not? If it does interfere, what methods should it use: should it be positive and motivational, or by reprimanding and penalizing people, should the penalties be financial or bodily, should it be a loss of societal privileges? As you can see, the Shariah has not prescribed any method of implementation and has delegated this to the rational judgment of society.

A jurist specializes in deriving rulings from the Quran and Sunnah but is not an expert in the methods of implementation. This requires individuals who are thoughtful, and knowledgeable about the environment, society, and the current generation, to devise appropriate strategies. Sometimes, it might be in the best interest to intervene, while at other times, it might be better not to intervene due to potential negative consequences. For instance, enforcing certain rulings might not lead to greater religiosity but could instead result in alienation from religion. Unfortunately, this is an issue we often neglect.

The second stage is when the ruling itself is clear and definitive, and the debate revolves around whether it should be implemented or suspended, rather than the method of implementation. The way forward here is to acknowledge that, while Allah’s command is not in question, the decision to implement it at a given time is subject to discussion. This is because divine rulings might be intended for specific circumstances and might not be applicable to others. For example, some of our scholars, both historically and in the present, believe that in the era of the Imams, certain punishments were enforced, but in the era of occultation, they should not be. For example, the Friday prayers are obligatory in the time of the Imams (a) but in the occultation, it is not considered obligatory by most jurists, and in fact, some jurists even said it was prohibited.

There are certain obstacles acknowledged by religion itself, which, if encountered during implementation, make the ruling non-binding. For instance, if implementation leads to harm, it is not required. If it results in aversion—meaning the implementation of the ruling causes people to develop hostility toward the religion itself—then it is not to be enforced. This does not mean the ruling is changed; the ruling remains valid, but its implementation is suspended temporarily. In general, jurists state that if the implementation of a ruling would undermine a more significant benefit or cause harm, it should not be enforced. For example, during the time of Imam Khomeini, it was said that the punishment of stoning for adultery could tarnish the image of Islam worldwide, so he instructed that it not be implemented.

The third stage involves not the implementation but the process of jurisprudential interpretation itself—whether the ruling has been correctly understood or not, is the ruling ta’sīsī, imdha’ī etc. Unlike the previous two stages, which were primarily non-jurisprudential matters, this stage is purely jurisprudential and involves ijtihad. This requires someone well-versed in the Quran, Sunnah, history, and Hadith to investigate the essence of the ruling and ascertain its true nature.

Consider an example from the verse of Surah Baqarah about loans:

يَـٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ إِذَا تَدَايَنتُم بِدَيْنٍ إِلَىٰٓ أَجَلٍۢ مُّسَمًّۭى فَٱكْتُبُوهُ ۚ وَلْيَكْتُب بَّيْنَكُمْ كَاتِبٌۢ بِٱلْعَدْلِ ۚ وَلَا يَأْبَ كَاتِبٌ أَن يَكْتُبَ كَمَا عَلَّمَهُ ٱللَّهُ ۚ فَلْيَكْتُبْ وَلْيُمْلِلِ ٱلَّذِى عَلَيْهِ ٱلْحَقُّ وَلْيَتَّقِ ٱللَّهَ رَبَّهُۥ وَلَا يَبْخَسْ مِنْهُ شَيْـًۭٔا ۚ فَإِن كَانَ ٱلَّذِى عَلَيْهِ ٱلْحَقُّ سَفِيهًا أَوْ ضَعِيفًا أَوْ لَا يَسْتَطِيعُ أَن يُمِلَّ هُوَ فَلْيُمْلِلْ وَلِيُّهُۥ بِٱلْعَدْلِ ۚ وَٱسْتَشْهِدُوا۟ شَهِيدَيْنِ مِن رِّجَالِكُمْ ۖ فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌۭ وَٱمْرَأَتَانِ مِمَّن تَرْضَوْنَ مِنَ ٱلشُّهَدَآءِ أَن تَضِلَّ إِحْدَىٰهُمَا فَتُذَكِّرَ إِحْدَىٰهُمَا ٱلْأُخْرَىٰ ۚ وَلَا يَأْبَ ٱلشُّهَدَآءُ إِذَا مَا دُعُوا۟ ۚ وَلَا تَسْـَٔمُوٓا۟ أَن تَكْتُبُوهُ صَغِيرًا أَوْ كَبِيرًا إِلَىٰٓ أَجَلِهِۦ ۚ ذَٰلِكُمْ أَقْسَطُ عِندَ ٱللَّهِ وَأَقْوَمُ لِلشَّهَـٰدَةِ وَأَدْنَىٰٓ أَلَّا تَرْتَابُوٓا۟ ۖ إِلَّآ أَن تَكُونَ تِجَـٰرَةً حَاضِرَةًۭ تُدِيرُونَهَا بَيْنَكُمْ فَلَيْسَ عَلَيْكُمْ جُنَاحٌ أَلَّا تَكْتُبُوهَا ۗ وَأَشْهِدُوٓا۟ إِذَا تَبَايَعْتُمْ ۚ وَلَا يُضَآرَّ كَاتِبٌۭ وَلَا شَهِيدٌۭ ۚ وَإِن تَفْعَلُوا۟ فَإِنَّهُۥ فُسُوقٌۢ بِكُمْ ۗ وَٱتَّقُوا۟ ٱللَّهَ ۖ وَيُعَلِّمُكُمُ ٱللَّهُ ۗ وَٱللَّهُ بِكُلِّ شَىْءٍ عَلِيمٌۭ ٢٨٢

[2:282] O you who believe, when you transact a debt payable at a specified time, put it in writing, and let a scribe write it between you with fairness. A scribe should not refuse to write as Allah has educated him. He, therefore, should write. The one who owes something should get it written, but he must fear Allah, his Lord, and he should not omit anything from it. If the one who owes is feeble-minded or weak or cannot dictate himself, then his guardian should dictate with fairness. Have two witnesses from among your men, and if two men are not there, then one man and two women from those witnesses whom you like, so that if one of the two women errs, the other woman may remind her. The witnesses should not refuse when summoned. And do not be weary of writing it down, along with its due date, no matter whether the debt is small or large. That is more equitable in Allah’s sight, and more supportive as evidence, and more likely to make you free of doubt. However, if it is a spot transaction you are effecting between yourselves, there is no sin on you, should you not write it. Have witnesses when you transact a sale. Neither a scribe should be made to suffer, nor a witness. If you do (something harmful to them), it is certainly a sin on your part, and fear Allah. Allah educates you, and Allah is All-Knowing in respect of everything.

This verse is very explicit that two women’s testimony is equal to one man’s testimony. This verse – unlike other verses or narrations – actually tells us why this is the case: it says this is the case because if one of the women forgets or makes a mistake, the other woman can remind her. This seems to say that a woman’s memory is weaker than a man’s. However is this really the case? We can see today that there are many fields and arenas where women outperform men, even when relying on their memories. So, what is the essence of this verse? For 1000 years, Muslim jurists had nothing to say about this verse except what it says in it explicitly. They all gave the same fatwa that the testimony of a woman in financial matters is half of that of a man. No one thought about the reasoning Allah (swt) Himself mentioned in the Quran, because it was a generally accepted matter in society and the jurists never felt the need to discuss it either. Women themselves never made a big deal out of it.

However, as we entered the modern era, we also faced this question: why is a woman’s testimony in financial matters half of that of a man? Scholars like Shahid Mutahhari, Shahid Beheshti and others said, let us go read the verse again properly and realized that the verse is not saying women are born inherently with a weaker memory than a man. Not only is this not proven from the verse, in fact the opposite of it is proven through our own human and lived experiences. They end up concluding that this verse relates to debts and loans, because since it was mostly men in that era who dealt with this issue, it was natural for men to have a stronger memory in this arena. Women in the past had very limited interest or even exposure to these financial matters, especially financial matters that were outside the house, even if they would hear something from their husbands, there would be no real incentive to remember details. Men on the other hand were dealing with these matters all the time, they would even write things down, and therefore their memory would be relied on more in this matter. This verse has nothing to do with women inherently being weaker than men in their memories.

Just to give you an example, imagine you and your wife go to an event, a wedding or someone’s house for an invitation. When you return back, your wife will be able to retell details from the event that you – as a man – literally did not even notice. They are looking at details and taking note of details that you are not. Today as women became more prominent in society and take up occupations where they also deal with financial matters regularly, there is no reason for us to say that their testimony is half of a man in financial matters. In the past, the scholars had no such experience or exposure since this phenomenon was non-existent.

I want to give another example, that has to do with the diyah (blood money) of a man and woman, where the woman’s diyah is half of a man. The details of the ruling of diyah are not mentioned in the Quran, but all the Sunni and Shi’a jurists accept this ruling that a woman’s diyah is half of a man. For non-Muslims the diyah is even less than 1/10^th. The Islamic Republic of Iran after the revolution wanted to solve this issue, and the diyah is given by insurance companies and they came up with technicalities in these insurance companies to make the financial compensation more equal for both men and women. We want to say that instead of these long-winded acts, why not revisit the traditions on the diyah of a man and a woman and figure out the essence of this ruling?

I have studied this topic in a lot of depth few years ago, and in the shrine of Imam Khomeini I presented on this subject during a conference, and also in Mashad¹. Through two different approaches I proved that the diyah of a man and woman is equal to begin with. This paper was published in some journals. Ayatullah Subhani critiqued both of my presentations and was published in the popular newspaper Ettelaat.² I told Aqa Sayed Mahmoud Doai that you have published Ayatullah Subhani’s response, but you never published my original arguments. Aqa Doai said he is not able to publish my original arguments. Two, three years later, they had an event for Dr. Hossein Mehrpour, for which I submitted my original arguments, along with Ayatullah Subhani’s rebuttal and then my response to Ayatullah Subhani together, which was then published. Recently, I have finished working on a book on the subject and it is currently sent to the publishers for printing.

From Fatwa to Legal Code

If we want to take a fatwa out of its traditional context in religious manuals and incorporate it into a legal code, that process requires a different pathway than the one used for deriving religious rulings. It is possible that a fatwa may lack the suitability, appropriateness, or capacity to become law. It remains a divine ruling, but its application as law requires individual discernment.

This is why I recently argued that the Hijab is a divine ruling and a fatwa upheld by jurists, but it lacks the capacity to be transformed into enforceable law. One reason for this is that hijab is obligatory for Muslim women but not for non-Muslim women. In a Muslim society, it is impractical to distinguish between Muslim and non-Muslim women. Civil code is applicable to all individuals, and this creates challenges in bridging the gap between a fatwa and legislation. The hijab is also only obligatory for free women, it is not even obligatory for slave women, and in fact, some jurists even argued it is prohibited for them to wear the hijab. Image 500 years ago if we were living in Iran, we would have slave women in society, how could you make it an enforceable law for all female citizens of the country?

If we engage in ijtihad, the next stage is ensuring that society has the capacity to accept and integrate these rulings. This is a challenge that I believe you can address. The issue arises when a fatwa is deemed valid, implemented, and made public—yet there is no sufficient intellectual or cultural foundation in society to support and accept it. For this to happen, jurisprudence and its specific rulings must be communicated to the public beyond the seminary, enabling people to understand and accept them. Once widely accepted, even opposing jurists – traditional jurists – would reconsider their stance to avoid being at odds with public opinion. This is the task we can undertake in the current circumstances.

For example, as long as the traditional jurists were in their Madrassah, they would say women have no right to vote. Even Shahid Modarres, the prominent supporter of the Constitutional Revolution and who lived during the time of the Reza Shah, gave his stance in the parliament and was against women voting. Some attribute to Imam Khomeini that he was also against women voting during that era, however this attribution is incorrect as per my research. How did it reach a point today where women are given the right to vote? It is because women came out and protested, they demanded this right, to such an extent that today even if a traditional jurist holds the view that women should not have the right to vote – which some do – they will not have the audacity to openly express this opinion.

There are scholars who do ijtihad and offer nuanced opinions, scholars like Shahid Mutahhari and Shahid Beheshti, who work in very different environments and atmospheres. They can see things from different perspectives; it is their opinions that need to reach the people. The Shura-ye Negehban (Guardian Council) had decided – at one point in time – that women would not be allowed to vote in the Islamic Republic of Iran, post-revolution. This decision reached Imam Khomeini and he immediately intervened to stop them, and he threatened them by saying he would inform the people, after which the Guadian Council could deal with the citizens’ reaction themselves.

Up until 1347 SH (1968 CE), many jurists used to say it is obligatory precaution for women to cover their face as part of the hijab. Shahid Mutahhari came to the Islamic Association of Physicians of Iran and presented his research on the topic of hijab for several sessions. In those sessions, he said there is no need for women to cover their face, and that this is not obligatory in Islam. A big scene was created in Tehran against him, especially because of his book Masale-ye Hijab. However, because Shahid Mutahhari took the arguments for his position and made them generic and accessible to the masses, a traditional jurist who is against that position will take a stance back and not be able to say anything, because they will not stand up against the masses.

This is exactly what we can do today as well. Expecting a resolution from the current government is unrealistic because the government works with rigid, traditionalist jurists who are incapable of addressing these issues. In fact, their entire power, credibility and justification is based on these rigid systems; the governing system facilitates their growth and promotions; they are the ones who create the Ayatullahs and promote certain types of speakers and scholars in society. However, in this same society, there is an entire segment of scholars, who are very strong in their academic discussions, their understanding of contemporary times is far more in-depth, but because they may have certain reservations with the current governing models, the government institutes and media does not pay much heed to them.

The solution lies in ensuring that the views and intellectual contributions of these latter capable jurists, who lack nothing in scholarly expertise, are recognized in society and their discussions reach the public. This is the only way forward. When this happens, both the government and the people will be influenced, and the notion put forth by some reformists and secularists that fiqh must be sidelined will naturally disappear.

Imam Khomeini himself displayed progressive thought in areas such as music and chess. He entered these domains and faced criticism but famously said that Islam demands sacrifice, and he did not mind. Alongside him were figures like Ayatollah Montazeri, who was committed to ijtihad and offering innovative rulings, and Ayatollah Mousavi Ardabili, who was similarly insightful and diligent in jurisprudence. Ayatollah Sane’i was another such scholar known for his understanding and creative approach. This entire generation of scholars has passed, and the current system lacks individuals of this calibre. Thus, there is no hope in the current system and we should not be looking at the system for any solutions when such individuals are non-existent within it. There is no reason to go after the government and hold them accountable for these matters, it is unrealistic for us to have this expectation from them at this point.

Hence, we must look at alternative solutions. The fact that you came to Qom and are meeting different jurists who have very different opinions and they are also addressing more contemporary issues is a great step. Just as an example, I recently published a jurisprudential work on the najasat of dogs, written in a typical ijtihadi way, but it is written in Farsi so people can access it and understand the discourse around it. Another discussion I did was on musical instruments; as you know musical instruments are used all the time but they are not allowed to be displayed on state media. Another discussion I did was on singing, the bulugh of girls, and one on sighting the moon. These are all discussions that have been done and published in Farsi that can be accessed by university experts.

Another recent book was published by one of the students in Qom, about the topic of hijab, but it has been two years and it has not gotten permission to be published – not in the previous government nor the current government. Even though it is a typical fiqhi discussion addressing whether the hijab can even be turned into a legal civil code or not. Another topic is Wilayat al-Faqih, a theory of governance put forth by Imam Khomeini, that everyone accepted at a certain time in history, but are there any other alternative governance models or not?

During the time of Imam Khomeini, when Mahdi Bazargan was appointed as the prime minister of Iran³, Imam Khomeini gave a statement⁴ in which he states that as he is the Wali al-Faqih, he has outlined the duties of the prime minister⁵ which are obligatory to obey and disobedience to his orders is disobedience to Allah (swt),⁶ which has severe punishment. In any case, everyone had accepted this theory at the time. However, are there any alternative theories? What was the view of Ayatullah Borujerdi on governance? What was the view of Shaykh Abdul Karim Haeri on governance? What was the view of Isfahani, the teacher of Ayatullah Khoei, Ayatullah Behjat, Ayatullah Milani, ‘Allamah Tabataba’i? There are ideas these scholars have mentioned in their works which are worth investigating and looking into further, or even taking inspiration from. However, these views are not going to be presented or put forth through channels and mediums that are connected to the government. These are views that you will find researched and published through scholars and researchers in Qom; they do exist but they just need more exposure.

All of you university experts and scholars from different departments need to be aware of the work being done in Qom, the research that is being done and the various opinions and ideas that are being put forth that are far more nuanced and well-researched than what may be contained in past books. Do not have the impression that all the students in Qom are just sitting there and regurgitating the same edicts and opinions from a thousand years ago.

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