Encyclopedia of Contemporary Jurisprudence - User contributions [en]

Seeing the Crescent with aided Eye

2026-10-06T20:54:26Z

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{{Author
|author = Seyyed Muhammadmahdi Noormofidi
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* '''abstract'''
'''Seeing the crescent with armed eye''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%B1%D8%A4%DB%8C%D8%AA_%D9%87%D9%84%D8%A7%D9%84_%D8%A8%D8%A7_%DA%86%D8%B4%D9%85_%D9%85%D8%B3%D9%84%D8%AD رؤیت هلال با چشم مسلح]) is of the novel and challenging issues of [[contemporary jurisprudence]], which has been raised with the advancement of technology and the emergence of new observation tools such as [[telescopes]]. In the recent century, [[Islamic jurists]] have faced the question of whether seeing the crescent moon with armed eye is as valid as seeing it with the bare eye. Contemporary jurists’ well-known response to this day has been negative. They argue based on reasons such as the seeing is not absolute and particularly refers to unaided seeing, non-validity of seeing with a telescope, impossibility of choosing between least and most and contradiction with the practice of Muslims in early Islam. On the other hand, some contemporary researchers and jurists, relying on the absolute seeing in [[hadiths]] and unity of the criterion, have tried to prove the validity of using new tools. Also, some contemporary [[Sunni jurists]] count seeing the crescent with armed eye of the ways of proving [the appearance] of the crescent.

==Explaining the issue and its importance==
Seeing the crescent with [[armed eye]], which means seeing the moon crescent using new means and tools such as cameras and [[telescopes]], is of the challenging, influencing and novel issues in [[contemporary jurisprudence]]. Given that in [[Islamic jurisprudence]] the time limit for many of Muslims’ duties and obligations such as [[fasting]] and [[Hajj]] has been determined based on lunar months, determining the beginning, end and the various days of lunar months is of significant importance. Determining the first day of [[Ramadan]], [[Eid al-Fitr]], [[Day of ‘Arafah]], [[Eid al-Adha]], [[Nights of Qadr]] (destiny) and other Islamic occasions is tied to this issue.
Since early Islam, the main way for determining the beginning of a lunar month has been the direct and sensory sighting of the crescent, without the use of tools and equipment. However, with the emergence of new tools such as telescopes and the possibility of seeing the moon more precisely, the debate has been raised as to whether it is jurisprudentially possible to prove that the lunar month has begun and its moon eclipse has appeared with new tools, referred to as “[[armed eye]].” At first, jurists’ response to this question was negative. However, with the passage of time and the discussions that took place around it, some contemporary jurists have considered seeing the crescent with armed eye as valid. Since seeing the crescent with armed eye may happen one night earlier than seeing it with the unaided eye, the difference between the two views becomes more important. Moreover, in case of using modern tools, there will be no such problems as the disagreement between the testifiers of seeing the crescent.
The notion of ‘[[armed eye]]’ has a wide scope which includes normal and weak cameras to precise and giant telescopes. According to critics, one of the ambiguities of the theory of seeing the crescent with armed eye is that, given the variety of precision, power and function of the observation tools for seeing the crescent and other celestial objects, it is not exactly clear which of the tools do the supporters of this theory consider to be valid.<ref>Mukhtārī, Ru’yat-i Hilāl, vol. 1, introduction, p. 101</ref>

==Review of literature and ideas==
Throughout the history of jurisprudence, until before the recent century, sensory seeing of the crescent with no tools, beside the passage of thirty days of the month and the decree of the ruler, were the main religious criteria for determining the beginning of the lunar month.<ref>Ṣadūq, Al-Muqni‘, p. 182; Mufīd, Al-Muqni‘a, p. 295; Ṭūsī, Al-Mabsūṭ, vol. 1, p. 267; Muḥaqqiq Ḥillī, Sharāyi‘ al-Islām fī Masā’il al-Ḥalāl va al-Ḥarām, vol. 1, p. 180; ‘Allāmah Ḥillī, Tazkirat al-Fuqahā’, vol. 6, p. 117</ref> However, since no tool whatsoever existed in the past, predecessors cannot be considered as opponents of this theory.
The first trace of this discussion among the jurists can be found in [[Muhammad Hussein Na'ini]]’s (1936) negative response to a question in this regard.<ref>Nā’īnī, Al-Fatāvī, vol. 1, p. 352</ref> After him, [[Sayyid Muhammad Baqir al-Sadr]] (1980),<ref>Ṣadr, Al-Fatāvī al-Vāḍiḥa Vifqan Limaḏhab ahl al-Bayt, p. 623</ref> [[Imam Khomeini]] (1989),<ref>Khomeini, Taḥrīr al-Vasīla, vol. 2, p. 639</ref> [[Sayyid Abulqasim Khu'i]] (1992)<ref>Khū’ī, Mausū‘a al-Imām al-Khū’ī, vol. 22, p. 123</ref> and other famous contemporary Shi’a [[Marja'|Maraji‘]] and jurists rejected seeing the crescent with armed eye, as well.<ref>Tabrīzī, Ṣirāt al-Najāt, vol. 3, p. 119; Vaḥīd Khurāsānī, Risālah Touḍīḥ al-Masā’il, p. 332; Zanjānī, Kitāb al-Ṣaum, p. 214; Sīstānī, Istiftā’ az Ayatollah Sīstānī</ref>
Some of the maraji‘, like [[Sayyid Abulqasim Khu'i]], reject seeing the crescent with new tools. However, they do not completely reject using these tools and accept them as means to help find the place of the crescent to see it with the bare eye.<ref>Khū’ī, Mausū‘a al-Imām al-Khū’ī, vol. 22, p. 123</ref> [[Sayyid Muhammad al-Sadr]] (1999) has counted other juridical effects for using the armed eye in his [[Mavara' al-Fiqh]] book, such as proving observability in case of obstruction, and rejecting the testimony of those who claim to have observed the crescent in case if a telescope proves that it is not possible to observe it with the unaided eye.<ref>Ṣadr, Māvarā’ al-Fiqh, vol. 2, p. 127</ref>
In contrast to most jurists, in recent years, a number of contemporary jurists and maraji‘ such as [[Muhammad Fadil Lankarani]] (2007),<ref>Fāḍil Lankarānī, a question asked on 18th November 2003, Ayatollah Fāḍil Lankarānī’s official website</ref> [[Muhammad Taqi Bahjat]] (2009),<ref>Bahjat, Istiftā’ Darbāriyi Ru’yat-i Hilāl bā Chishm-i Musallaḥ; Bahjat, Rasālah fī Ru’yat al-Hilāl, p. 51</ref> [[Sayyid Abdulkarim Musavi Ardabili]] (2016),<ref>Mūsavī Ardabīlī, Nahj al-Rashād, p. 285</ref> [[Sayyid Ali Khamenei]]<ref>Khamenei, U’jūbat al-Istiftā’āt, p. 173</ref> and [[Muhammad Ali Girami]]<ref>Girāmī, Al-Mu‘allaqāt ‘Alā al-‘Urvat al-Vuthqā, p. 417</ref> considered seeing the crescent moon with the armed eye as valid. [[Sayyid Mahmud Hashimi Shahrudi]] (2018)<ref>Hāshimī Shāhrūdī, Arabic questions on Ayatollah Hāshimī Shāhrūdī’s official website</ref> and [[Yusuf Sani'i]] (2020),<ref>Ṣāni‘ī, Majma‘ al-Masā’il, vol. 1, p. 316</ref> while distinguishing between different tools and instruments of observation, based on the conventional view, accepted seeing with a camera, but considered seeing with specialized and more accurate tools such as a telescope to be invalid.

==Arguments of the supporters==
Proponents of seeing with the armed eye cite the following reasons:

===Absolute seeing in narrations===
The most important reason provided by those who say that seeing with tools is sufficient is based on the absolute "seeing" in hadiths. Mohammad Javād Fāḍil Lankarānī, professor of [[Qom Seminary]], believed that “seeing” in hadiths includes seeing with the armed eye as it applies to seeing with the bare eye. Therefore, if the moon is observed with a telescope, the sighting is right and the application is real<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 21</ref>; as in respect of looking at non-Maḥram ones and the similar rulings, there is no difference between looking with instruments and looking without them.<ref>Shahīdī, Qarā’inah Naqdīyyah li Adillat al-Qaul bi ’I‘tibār al-Ajhizat al-Ḥadītha fī Ru’yat al-Hilāl, p. 128</ref>

===The hadith narrated by Ali ibn Ja‘far===
In a hadith narrated by Ali ibn Ja‘far from [[Imam Kazim (AS)]], a sharp-eyed person’s sighting is considered valid for himself.<ref>Ḥurr ‘Amilī, Vasā’il al-Shī‘a, vol. 10, p. 260, section 4</ref> It seems that, first, Abulqāsim Khiz‘ali cited this hadith in his argument.<ref>Khiz‘ali, Ḥaul-i Ru’yat al-Hilāl, p. 1131</ref> Hāshimī Shāhrūdī has also deduced the validity of unconventional sighting from this hadith.<ref>Hāshimī Shāhrūdī, Thubūt al-Shahr bi Ru’yat al-Hilāl fī Balad al-Ākhar, p. 64</ref> Muhammad Taqī shahīdī, a professors of Qom seminary, however, believes that this narration, in addition to being contradicted, does not include seeing with an armed eye.<ref>Shahīdī, Qarā’inah Naqdīyyah li Adillat al-Qaul bi ’I‘tibār al-Ajhizat al-Ḥadītha fī Ru’yat al-Hilāl, p. 13</ref> Mohammad Surūsh Maḥallātī, a researcher and seminary professor, also considers this narration to be valid about a sharp-eyed person’s sighting, which is itself an example of seeing with an unaided eye. Because of its outstanding difference with seeing with an armed eye, however, he believes that the two cannot be compared.<ref>Surūsh Maḥallātī, Tavallud-i Māh yā Ru’yat-i Hilāl, p. 126</ref>

===Unity of the criterion===
According to Fāḍil Ṣaffār, jurisprudence researcher and professor at [[Najaf Seminary]], custom does not consider any specialty for seeing with the bare eye. The criterion for this ruling is proving that the moon has appeared; and there is no difference between seeing it with a bare eye or with an armed eye in the realization of this criterion.<ref>Ṣaffār, Ru’yat al-Hilāl bi al-Ajhizat al-Falakīyyah, p. 8</ref> Muhammad Surūsh Maḥallātī, researcher and professor at Qom seminary, has gone further to believe that, basically, seeing has been presented as a conventional way to ensure the appearance of the crescent moon and the start of the new month, and it is not a subject in itself. Also, hadiths have only sought to negate acting based on doubt. Based on his argument, definitive calculations of the exact time of the birth of the moon are also juridical proofs for the appearance of the moon.<ref>Surūsh Maḥallātī, Tavallud-i Māh yā Ru’yat-i Hilāl, p. 30</ref> Muhammad Javād Fāḍil Lankarānī, as well, believes the criterion to be the moon leaving the umbra and considers no significance for the sighting and the crescent.<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 21</ref>

==Arguments of the opponents==
Opponents of seeing the crescent with armed eye have also presented reasons to reject this theory:

===The Ahillah verse===
[[Sayyid Ali Sistani]] and [[Sayyid Musa Shubayri Zanjani]], of the contemporary maraji‘, have cited verse 189 of surah al-Baqarah (يَسْأَلُونَكَ عَنِ الْأَهِلَّةِ قُلْ هِيَ مَوَاقِيتُ لِلنَّاسِ وَالْحَجِّ) to reject the authoritativeness of seeing the crescent with armed eye. They have argued that the mentioned verse has set the crescent moon as the general agreement to determine the month for [[Hajj]] and other affairs. Therefore, the general people must be able to perceive the moon in that way, while new tools such as telescopes are not generally available and only certain people have access to them.<ref>Sīstānī, a question that was asked from Ayatollah Sīstānī; Zanjānī, Kitāb al-Ṣaum, p. 214</ref> A similar argument had earlier been presented by [[Husain Ali Muntaziri]], a contemporary jurist.<ref>Muntaẓirī, Al-‘Ufuq va al-Āfāq, p. 37</ref>

===Non-absolute seeing in hadiths===
Opponents of seeing the crescent moon with armed eye reject its absoluteness in various ways. According to [[Ja'far Subhani]], the contemporary marja‘, in hadiths, seeing is exclusive to the conventional sighting that was common in the age of revelation, which is seeing with the senses and without the use of tools.<ref>Subḥānī, Ru’yat-i Hilāl, p. 53</ref> It is also said that since it was not possible to set limits because of the absence of new tools, it is meaningless to consider it absolute.<ref>Shahīdī, Qarā’inah Naqdīyyah li Adillat al-Qaul bi ’I‘tibār al-Ajhizat al-Ḥadītha fī Ru’yat al-Hilāl, p. 132</ref> [[Nasir Makarim Shirazi]], the contemporary commentator and marja‘, also believes that considering cases such as خفاء جدران (not seeing the city walls) in determining the [[Limit of Tarakhkhus]] for a traveler’s prayer where the criteria is based on unaided vision, rules generally consider a common person, while seeing with armed eye is not common and normal. Therefore, this type of vision cannot be absolute.<ref>Makārim Shīrāzī, Chand Nukti-yi Muhim dar Bāri-yi Ru’yat-i Hilāl, p. 13</ref>
Nonetheless, according to the proponents of using the armed eye, since religious rules are truthful and eternal matters, and since reference to something cannot be realized based on the dominance of existence, the abslutness of seeing in hadiths is not damaged. According to this view, if we refer all absoluteness [of the words of hadiths] back to the ordinary people at the time when the rules were issued, in general, no absoluteness can be used about upcoming issues while some opponents of using the armed eye refer to the inclusiveness of hadiths in such matters.<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 51</ref> Referring to the hadith narrated by Ali ibn Ja‘far in which the vision of a sharp-eyed person is accepted, Hāshimī Shāhrūdī rejects excluding seeing to a common normal person.<ref>Hāshimī Shāhrūdī, Thubūt al-Shahr bi Ru’yat al-Hilāl fī Balad al-Ākhar, p. 64</ref>

===Arguing based on the word crescent in hadiths===
Some opponents of seeing with the armed eye, such as [[Sayyid Abulqasim Khu'i]], argue based on the interpretation that they present for crescent to reject the theory of using the armed eye. This contemporary jurist believed that the crescent is realized when there is general visibility and before that, even if the moon has been born, the crescent is not realized. According to him, seeing is a path. However, he considers the crescent to be significance in itself; therefore his theory is identified seeing. According to this contemporary marja‘ and jurist, whenever the possibility of unaided seeing is proved in some way, it proves that the crescent moon has appeared, even if actual seeing has not been realized.<ref>Khū’ī, Mausū‘a al-Imām al-Khū’ī, vol. 22, p. 61</ref>
Riḍā Mukhtārī, researcher in jurisprudence, rejects the realization of the crescent moon when it is seen with a telescope in its primary state based on the literal root of the word هلال ([[Hilal]]), which means appearance and emergence. He believes that when the bright edge of the moon has not reached a level of appearance to be visible for the general people, it cannot be referred to as the crescent moon.<ref>Mukhtārī et al., Ru’yat-i Hilāl, vol. 5, p. 44</ref> In response to this argument, beside rejecting the significance of the crescent in itself, Surūsh Maḥallātī does not consider the lexical naming as an evidence and cites the usage of the word هلال and its reference to the beginning of the month according to lexicologists.<ref>Surūsh Maḥallātī, Tavallud-i Māh yā Ru’yat-i Hilāl, p. 28</ref>

===Impossibility of choosing between least and most===
Given that the proponents of the theory of armed eye do not reject the use of bare eye, some researchers of jurisprudence cite the absolute impossibility of choosing between the least and the most to disprove this theory. In this point of view, according to the armed eye theory, the [[Mukallaf]] (a competent person responsible for his religious duties) is allowed to choose between seeing with the armed eye or with the bare eye, while the first criterion is always realized before the second.<ref>Mukhtārī et al., Ru’yat-i Hilāl, vol. 5, p. 46</ref> In response to the mentioned argument, Muhammad Javād Fāḍil Lankarānī considered the two titles as superficial and, in fact, two ways to prove one matter. He believed that choosing between least and most is impossible when involving two real matters, not when dealing with appearances.<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 129</ref> Another answer that has been proposed is that basically there is no choice in this matter, because the two titles do not stand side by side, but along the same line. This means that the lawmaker has established the criterion of seeing the crescent with unaided eye if it is not possible to see the crescent with the armed eye. Therefore, in reality, there is no choice.<ref>Nūrmufīdī, ’I‘tibār Sanjī-yi Muḥāsibāt-i Qaṭ‘ī-yi Tavallud-i Māh dar Ithbāt-i Shar‘ī-yi Hilāl, p. 30</ref>

===Contradiction with the practice of Muslims in early Islam===
[[Nasir Makarim Shirazi]] has tried to reject this theory by stating that the armed eye theory requires considering the action of Muslims since the beginning of the [[Prophet (PBUH)]]’s mission as wrong; because in his opinion, given that seeing the crescent moon with a telescope is usually realized one night earlier, then the prerequisite is [to believe] that the Prophet and Muslims must have missed the obligation of fasting in many cases or have fasted on the day of Eid. Such a prerequisite, however, is not binding.<ref>Makārim Shīrāzī, Chand Nukti-yi Muhim dar Bāri-yi Ru’yat-i Hilāl, p. 14</ref> [[Sayyid Ali Sistani]] has also presented a similar argument.<ref>Sīstānī, ‘As’ilat Ḥauli Ru’yat al-Hilāl Ma‘a Javābihā, p. 42</ref> On the other hand, some of the supporters of the armed eye theory, relying on the distinction between the apparent and real ruling, believe that the duty of the predecessors was based on the apparent ruling and thus they were excused.<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 140</ref>
It has also been said that identifying the beginning of the month is like identifying the [[Qibla]], which is of the type of identifying the issue, not the ruling, and, as in the past, the determination of the Qibla was not accurate, and the jurists considered the approximate determination of the direction of the [[Qibla]] as sufficient and correct, in the matter of sighting, the two criteria are placed along one another. This means that for those who have access to tools the first criterion is valid, and for those who do not, the second criterion is valid. According to this statement, the theory of the armed eye does not lead to considering the actions of the predecessors as wrong and is included in the scope of the recognition of the issue by the [[Mukallaf]].<ref>Surūsh Maḥallātī, Tavallud-i Māh yā Ru’yat-i Hilāl, p. 126</ref> Similarly, when there used to be a doubt about proving the parent of a child in the past, the rule الولد للفراش was used. Today, however, with the advancement of the medical science and the development of [[DNA testing]], the mentioned rule is no longer used; because, this test alleviates the doubt and the subject of that rule.<ref>Fāḍil Lankarānī, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, p. 140</ref>

===Requirements of the practical principle===
If the evidence is not enough to prove the authoritativeness of seeing the crescent with armed eye, in case of doubt, one should refer to the practical principle. Various explanations have been presented about the requirements of the practical principle in an issue. Fāḍil Ṣaffār, professor at the [[Najaf seminary]], considers the present practical principle in this matter to be rejecting the obligatory use of armed eye.<ref>Ṣaffār, Ru’yat al-Hilāl bi al-Ajhizat al-Falakīyyah, p. 11</ref> Muhammad Taqī Shahīdī, however, considers the [[Istishab]] principle (principle of presumption of continuity) for the rule to be present and believes that rejecting the obligation of fasting at the beginning of the month is opposite to rejecting the prohibition of fasting at the end of the month.<ref>Shahīdī, Qarā’inah Naqdīyyah li Adillat al-Qaul bi ’I‘tibār al-Ajhizat al-Ḥadītha fī Ru’yat al-Hilāl, p. 138</ref> In any case, if it comes to the practical principle, [validity of] seeing the crescent with the armed eye cannot be proven.

==The Ahl al-Sunnah point of view==
The issue of seeing the crescent with armed eye has also received attention by late Sunni jurists. Lajna al-Dā’imah Iftā’ in Saudi Arabia, while denying astronomical calculations, has accepted seeing by instruments and tools.<ref>Darvīsh, Fatāvī al-Lajnah al-Dā’imah, first collection, vol. 10, p. 99</ref> Also, referring to the hadiths about seeing that have been narrated in the Sunni juridical encyclopedias, [[Abdulaziz bin Baz]], a sunni jurist, has considered seeing with the armed eye an instance of seeing and authentic.<ref>Dasūqī, Buṭlān al-‘Amal bi al-Ḥisāb al-Falakī, p. 65</ref> Ḥisām al-Dīn Mūsavī ‘Afānah, Palestinian jurist and [[Mufti]], has also accepted reliance on tools and instruments and astronomical calculations.<ref>‘Afānah, Fatāvī Yas’alūnak, vol. 6, p. 396</ref>

==Study resources==
{{main|Seeing the crescent with armed eye (study resources)}}
The most important work on seeing the crescent can be Ru’yat-i Hilāl by Riḍā Mukhtārī et al., that has been published in five volumes and about four thousand pages. This book, while investigating verses and traditions and categorizing them, has collected sections related to seeing the crescent moon from the jurisprudence books written by both Shia and Sunni jurists. It has also collected important articles in this field and introduced other articles as well. It has been published by Būstān-i Kitāb institute in 2008.
Also the books I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl by Muhammad Javād Fāḍil Lankarānī (2022, with plenty of additions and explanations) and Tavallud-i Māh yā Ru’yat-i Hilāl? By Sorūsh Maḥallātī (2023) are of the resources available for research about seeing the crescent. The first book includes the article “I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl” [validity of new tools in seeing the crescent], Riḍā Mukhtārī’s controversies in criticizing the mentioned article, response to the controversies and the text of the author’s presentations in two scientific meetings around the subject of seeing the crescent moon with armed eye. And the second book also examines in detail various opinions on proving the [appearance of] the crescent, including seeing the crescent with naked eye, and strengthens the possibility of proving the [appearance of] the crescent through definitive calculations of the birth of the moon. Also Muhammad Taqī Shahīdīpūr has written the Arabic article “Qarā’inah Naqdīyyah li Adillat al-Qaul bi ’I‘tibār al-Ajhizat al-Ḥadītha fī Ru’yat al-Hilāl,” published in the second issue of the Tā Ijtihād journal, in which he comprehensively explores the reasons for the validity of new tools in seeing the crescent.

==Footnotes==
{{Footnotes}}
<references />

==References==
{{References}}
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* Fāḍil Lankarānī, Muhammad Javād, ‘I‘tibār-i Abzār-i Jadīd dar Ru’yat-i Hilāl, Qom, Markaz-i Fiqhī-yi A’immi-yi Aṭhār, 2021
* Fāḍil Lankarānī, Muhammad, Ayatollah Fāḍil Lankarānī’s official website
* Mukhtārī, Riḍā, and others, Ru’yat-i Hilāl, Qom, Būstān-i Kitāb, 2009
* Mufīd, Muhammad ibn Nu‘mān, Muṣannafāt al-Shaykh al- Mufīd, Qom, Al-Mu’tamir al-‘Ālamī li Alfīyyah al-Shaykh al- Mufīd, 1993
* Makārim Shīrāzī, Nāṣir, Chand Nukti-yi Muhim dar Bāri-yi Ru’yat-i Hilāl, Qom, Imam Ali ibn Abi Ṭālib (AS) school, 2005
* Muntaẓirī, Hussain ali, Al-‘Ufuq va al-Āfāq, Tehran, Sāyeh, 2005
* Mūsavī Ardabīlī, Sayyid Abd al-Karīm, Nahj al-Rashād, Qom, Nijāt, 2010
* Nā’īnī, Muhammad Hussein Gharavī, Al-Fatāvī, Qom, Naṣā’iḥ, 2002
* Nūrmufīdī, Sayyid Muhammad Mahdi, ’I‘tibār Sanjī-yi Muḥāsibāt-i Qaṭ‘ī-yi Tavallud-i Māh dar Ithbāt-i Shar‘ī-yi Hilāl, Fiqh va Ijtihād quarterly, No. 15
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* Hāshimī Shāhrūdī, Sayyid Mahmud, Thubūt al-Shahr bi Ru’yat al-Hilāl fī Balad al-Ākhar, Fiqh-i Ahl al-Bayt journal (Arabic), No. 31
* Hāshimī Shāhrūdī, Ayatollah Hāshimī Shāhrūdī’s website (Arabic), www.hashemishahroudi.org

[[fa:رؤیت هلال با چشم مسلح]]
[[ar:رؤية الهلال بالعين المسلحة]]
[[Category:Contemporary Jurisprudence Articles]]

Customary legislation

2026-10-06T20:31:02Z

Enadmin:

{{Author
|author = Alireza Salehi
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* '''abstract'''
'''Customary legislation''' (in Persian: [[:fa:قانون‌گذاری_عرفی|قانون‌گذاری عرفی]]) is subject of this Article. From the point of view of some [[jurists]], whether during [[Iranian Constitutional Era|Iran’s constitutional era]] such as [[Mohammad Hossein Tabrizi|Mohammad Hussein Tabrīzī]] and [[Fazlullah Nuri|Faḍlullāh Nūrī]], or in the era of the [[Islamic Republic of Iran]] such as [[Sayyid Mohammad Hossein Hosseini Tehrani|Sayyid Mohammad Hussein Husseinī Tehranī]], '''Customary legislation''' or the writing of constitutional and ordinary laws by legislative bodies is considered to be against the [[Sharia]]. To prove their claim, they have cited reasons such that Muslims do not need new [[legislation]], particularly a [[Constitution]], with the existence of the [[divine comprehensive law]]; that [[legislation]] contradicts the [[Prophethood]] and finality of the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]]; that non-Muslims have domination over Muslims; and that the [[majority vote]] is considered a false belief.
On the other hand, [[jurists]] such as [[Mirza Mohammad-Hossein Gharavi Na'ini]], [[Sayyid Muhammad Baqir Sadr]] and [[Mohammad Beheshti|Sayyid Muhammad Husseinī Bihishtī]] divided the duties of the [[Mukallaf|obligees]] into the two areas of those about which there is a text and about which there is none. They acknowledge the existence of comprehensive and complete divine rules in the area about which there are texts and believe that the society requires some legislative body; because, in a wide range of permissible matters and in explaining secondary rules about which there is no text, the responsibility of decision-making has been entrusted to human beings. According to them, there is a need for [[legislation]] in the areas about which there is no text as well as in those areas of [[Sharia]] rulings over which [[jurists]] differ. They consider the enactment of laws to be of the rational ways that have been approved by the Lawmaker and that is obligatory as the prelude to obligation.
After the victory of the [[Islamic Revolution of Iran]], the [[jurists]] that were influential in Iran’s Islamic victory, including [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] and [[Hossein-Ali Montazeri|Hussein Ali Muntaẓirī]], considered lawmaking in Islam to include the three stages of [[legislation]], recognition and planning. According to them, in Islam, the right to legislate belongs to God, and after its transmission by the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]], divine decrees are extracted from the sources of religion by the [[Imams (AS)]] and the [[ijtihad]] of [[jurists]]. According to them, the [[parliament]] in the [[Islamic government]] does not have the right to legislate. Rather, its special task is to discover the issue, advise and plan on how to implement the [[Sharia]] and adapt new events to its standards.
Also, [[jurists]] such as [[Mohammad Momen|Mohammad Mu’min]] and [[Mohammad-Taqi Mesbah-Yazdi|Mohammad Taqī Miṣbāḥ Yazdī]] consider [[legislation]] in public affairs to be a matter under the [[Wali al-Faqih|guardian]]'s control and a form of [[guardianship of the jurist|guardianship]] by him. According to them, legislative institutions are bodies under the [[Wali al-Faqih|guardian]]'s control, and their enactments become law only with the [[Wali al-Faqih|guardian]]'s approval.

==Explaining the issue==
The writing of laws by legislative bodies about matters about which no particular text has been issued by the Lawmaker and that relate to the daily and general affairs of the society has raised various reactions by [[jurists]]. Based on their theoretical foundations, they have presented some opinions about writing a [[Constitution]] or [[legislation]] in the [[Islamic government]] in the area of those matters about which there is no text. Some [[jurists]] who believe the right to legislate to belong to the Lawmaker alone, consider the formation of legislative bodies, including the [[parliament]], and their legislations to be contrary to religious teachings<ref name="ref1">Unknown, Taḏkirat al-Ghāfil, vol. 1, pp. 64-65; Nūrī, Ḥurmat-i Mashrūṭih, vol. 1, pp. 103-104</ref>. On the other hand, some [[jurists]], while acknowledging the exclusiveness of the right to legislate in the matters of [[Sharia]] to the Lawmaker, believe that it is necessary to form lawmaking institutions to make decisions about public matters<ref name="ref2">Nā’īnī, Tanbīh al-Ummah, p. 134; Najafī Iṣfahānī, Mukālimāt-i Muqīm va Musāfir, p. 429; Maḥallātī, Rasālah al-Li’ālī Marbūṭah fī Vujūb al-Mashrūṭah, p. 539</ref> and about matters that have no texts (منطقه الفراغ) and also about controversial [[Sharia]] rulings<ref name="ref3">Ṣadr, Al-Islam Yaqūd al-Ḥayāt, pp. 10-12</ref>. Some other [[jurists]], particularly after the victory of the [[Islamic Republic of Iran]], while believing in the exclusiveness of the right to legislate to the Lawmaker, reject independence in lawmaking. However, because of the government’s need for laws, they accept the existence of lawmaking institutions such as a [[parliament]] under titles such as planning<ref name="ref4">Khomeini, Vilāyat-i Faqīh, pp. 43-44</ref> and advising<ref name="ref5">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-60</ref> [[parliament]]. Also, some [[jurists]] consider lawmaking in this area to be exclusive to the [[Wali al-Faqih|guardian]] that he implements via the organs under his supervision<ref name="ref6">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, pp. 81-82; Khātam Yazdī, Ab‘ād-i Fiqhī-yi Imam Khomeini, p. 114</ref>.

==Non-legality of lawmaking in the Islamic government and the reasons for it==
The [[jurists]] who believe in the non-legality of [[legislation]] in the [[Islamic government]] have cited two types of reasons to prove their claim. Their arguments, on the one hand, relate to the issue of [[legislation]] such as introduction of false beliefs into religion and contradiction with the finality of the [[Prophet Muhammad (PBUH)|Prophet of Islam]], and on the other hand, point to legislative institutions, such as the [[Parliament]], including the non-legality of the parliamentarians' interference in public affairs and the possibility of domination of non-Muslims over Muslims through the election mechanism.

===Heresy of lawmaking and the majority vote===
According to [[Fazlullah Nuri|Sheikh Faḍlullāh Nūrī]], the first problem with the lawmaking process is with making laws in the area of originally permissible matters, when doing and not doing them are equal and people cannot be coerced to do or avoid them. Accordingly, when a law is passed in this area and its implementation is made compulsory and when citizens are punished for failing to fulfill it, it will be equal to [[legislation]] in religion and [[Bid'ah|heretical]]<ref name="ref7">Nūrī, Ḥurmat-i Mashrūṭih, vol. 1, pp. 106-107</ref>. Also, according to the author of the Taḏkirat al-Ghāfil (unknown author) treatise, the [[majority vote]] as the legislative bodies’ tool for the enactment of laws opens the path for illegal laws to enter the lawmaking field. Therefore, the [[parliament]] is basically a [[Bid'ah|heretical]] entity<ref name="ref8">Unknown, Taḏkirat al-Ghāfil, vol. 1, pp. 64-65</ref>.

===Muslims do not need new laws===
According to [[Mohammad Hossein Tabrizi|Mohammad Hussein Tabrīzī]], an Iranian [[jurist]] during [[Iranian Constitutional Era|Iran’s constitutional era]], the existence of the [[divine comprehensive law]] is enough to organize the lives of people, and it leaves no need for a new law. In upcoming issues, people should refer to religious scholars based on the provisions of [[Imam al-Mahdi (AS)|Imam al-Mahdī’s (AS)]] decree<ref name="ref9">Tabrīzī, Kashf al-Murād, p. 131</ref>. Marandī Najafī, another [[jurist]] in the constitutional era, believed that considering the abolition of past religions by Islam, and based on the [[Quran 5:3]] about the completion of religion), there will be no need for the enactment of new laws and anyone who believes otherwise, in fact, denies God and the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]]<ref name="ref10">Najafī Marandī, Dalā’il Barāhīn al-Furqān, pp. 197-200</ref>. Also, [[Sayyid Javad Varai|Sayyid Javād Vara‘ī]] has said that after the victory of the [[Islamic Revolution of Iran]], some [[jurists]] considered lawmaking as deception and standing against the [[Qur'an]]. They believed that the [[Qur'an]] and the [[Prophet Muhammad (PBUH)|Prophet’s]] conduct make our [[Constitution]] and that there is no need for new laws<ref name="ref11">Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Alimān-i Dīn, pp. 57-59</ref>.

===Contradiction of legislation with the Prophet’s (PBUH) prophethood and finality===
According to the author of the Taḏkirat al-Ghāfil treatise, the rational reason for sending prophets has been the need for laws and man’s ignorance and inability to make them. If we consider ourselves capable of formulating laws, there will be no rational reason for the mission of prophets and this will be equal to denying the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]]. Also, in his opinion, if someone believes that the requirements of every era change some articles of the [[divine law]], such a person is outside the circle of Muslims; because, he has questioned the finality of the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]]<ref name="ref12">Unknown, Taḏkirat al-Ghāfil, vol. 1, p. 57</ref>.

===Illegality of the parliamentarians’ interference with public affairs===
According to the opponents, making decisions about public affairs is a matter of [[guardianship]], not of attorneyship, and the exercise of [[guardianship]] during the [[The Occultation|Occultation]] is the responsibility of [[jurists]]; Therefore, decision-making by the lawyers of the [[parliament]] will lead to the usurpation of the position of the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]], [[Imams (AS)]] and their general deputies. By distinguishing between public and religious affairs, they consider intervention in religious affairs to be exclusive to [[jurists]] and decision-making in public affairs to rest upon the ruler and his agents, who will carry it out by setting guidelines. Therefore, there will be no need for [[legislation]] and the creation of legislative bodies<ref name="ref13">Nūrī, Ḥurmat-i Mashrūṭi, vol. 1, pp. 103-104; Husseinī Tehranī, Vilāyat-i Faqīh dar Ḥukūmat-i Islāmī, vol. 3, pp. 172-173</ref>. This reason can be eliminated if the legislative body is placed in the hands of competent people such as [[jurists]], and therefore the illegitimacy of parliament members’ taking over of the seats and also of the establishment of legislative bodies can be removed in this way.

===Domination of non-Muslims over Muslims===
Another problem with legislative institutions is the possibility that non-Muslims may enter the [[parliament]] through the election mechanism and, thus, that the affairs of Muslims may fall into their hands. While, according to Najafī Marandī, based on the [[Rule of Nafy-i Sabil|Nafy-i Sabīl]] (نفی سَبیل) rule, there should be no way for infidels to dominate Muslims<ref name="ref14">Najafī Marandī, Dalā’il Barāhīn al-Furqān, p. 223</ref>. This reason, too, can be rejected by creating a mechanism to prevent non-Muslims from entering the [[parliament]] and cannot be cited by the opponents to conclude the illegitimacy of establishing legislative institutions.

==Legitimacy of lawmaking in the Islamic government and its evidence==
The [[jurists]] who believe in the permissibility of [[legislation]] in the [[Islamic government]], whether during the constitutional era or during the [[Islamic Republic of Iran]], maintain that despite the existence of comprehensive and perfect divine laws regarding religious affairs, some kind of legislative institution is necessary in the society; because, in a wide range of permissible matters and in explaining secondary rulings, the responsibility of decision-making has been entrusted to human beings<ref name="ref15">‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-122</ref>. They consider [[legislation]] in the [[Islamic government]] to be of the type of adapting general rules to small issues<ref name="ref16">Makārim Shīrāzī, Anvār al-Uṣūl, vol. 3, p. 253; Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, pp. 335-337</ref> and supervising the processes of implementing the rules of [[Sharia]] and the quality of implementing the rules<ref name="ref17">Najafī Iṣfahānī, Mukālimāt-i Muqīm va Musāfir, p. 429; Ṣadr, Al-Islam Yaqūd al-Ḥayāt, p. 12</ref>. They believe in the permissibility, and even the necessity, of lawmaking by legislative bodies in the area of [[customary lawmaking|customary and public matters]] and also in the area of religious rules that are controversial among [[jurists]]<ref name="ref18">Maḥallātī, Rasālah al-Li’ālī Marbūṭah fī Vujūb al-Mashrūṭah, p. 539</ref>. In the book Al-Islām Yaqūd al-Ḥayāt, [[Sayyid Muhammad Baqir Sadr]] has written that people directly establish the legislative body<ref name="ref19">Najafī Iṣfahānī, Mukālimāt-i Muqīm va Musāfir, p. 427; Nā’īnī, Tanbīh al-Ummah, p. 123; Ṣadr, Al-Islam Yaqūd al-Ḥayāt, pp. 12-13</ref>. Also, [[Mohammad Beheshti|Sayyid Muhammad Husseinī Bihishtī]], of the founders of the [[Islamic Republic of Iran]] and of the figures who were influential in the enactment of its [[Constitution]], believed that administering the affairs of the state must be based on public votes. That is why legislative processes are required<ref name="ref20">Nā’īnī, Tanbīh al-Ummah, pp. 88-90</ref>.
The evidence provided by those who believe in the permissibility of [[legislation]] in the [[Islamic government]] sometimes relate to legitimizing legislative processes according to religious teachings and, sometimes, are presented in response to the evidence provided by the opponents.

===Referring the area of matters not mentioned in the texts to the general people by the Lawmaker===
Through dividing laws into constant and changing laws and the affairs of the [[Mukallaf]] people into those mentioned in texts and those not mentioned in texts<ref name="ref21">Nā’īnī, Tanbīh al-Ummah, pp. 45-58 and 87-88 and 108</ref>, those people who believe in the [[legitimacy]] of lawmaking in the [[Islamic government]] maintain that if in some matters the Lawmaker’s ruling was extracted, there can be no option or vote therein and it has to be abided by. In the area of matters not mentioned in texts and controversial religious rules, however (Manṭaqat al-Firāgh), based on the verse و امرهم شورا بینهم, the Lawmaker has made public consultation responsible for these matters. Therefore, the rules will change based on the requirements of every time and place and the difference of interests<ref name="ref22">Nā’īnī, Tanbīh al-Ummah, p. 108</ref>. In response to the opponents who interpreted legislations by the [[parliament]] as replacing the laws of [[Sharia]] with customary law, [[Mohammad Ismail Mahallati|Muhammad Ismā‘īl Maḥallātī]], a [[jurist]] during the constitutional era, believed in the separation between the two areas of [[Sharia]] and custom. He believed that the [[Parliament]] members’ duty is to make decisions about customary affairs which fall outside the scope of juridical matters and, so, do not interfere with the duties of [[jurists]]<ref name="ref23">Nā’īnī, Tanbīh al-Ummah, p. 107; Fayarḥī, Āstāni-yi Tajaddud, p. 323</ref>. It has also been said that non-contradiction of the laws approved by the legislative body with Islamic standards and regulations will be confirmed by the participation of some [[Mujtahid|mujtahids]] in the legislative process (supervisory board) or superior institutions such as the high authority institution<ref name="ref24">Fāḍil Lankarānī, Nisbat-i Fiqh va Qānūn, Miftāḥ-i Kirāmat website</ref>.

===The obligation of enacting laws as the prelude to obligation===
[[Mirza Mohammad-Hossein Gharavi Na'ini]] considers the preservation of the [[Islamic state]] from the evil of dictatorship as one of the obligations agreed upon by the [[Shiites]] and [[Sunnis]], which will not be possible without supervisory organs<ref name="ref25">Khomeini, Vilāyat-i Faqīh, pp. 43-45</ref>. As he puts it, during the [[The Occultation|Occultation]], supervision depends upon the existence of a [[Constitution]]<ref group="note" name="note1">Nā’īnī considers the lawfulness of legislation to depend on three conditions: a) Assigning the constitution to all kinds of interests; b) basing it on the rules and requirements that arise from the contract of trust and c) ensuring non-contradiction of its chapters and articles with the rules of Sharia. (Fayarḥī, Āstāni-yi Tajaddud, p. 335)</ref> and legislative bodies such as a [[parliament]]<ref group="note" name="note2">Nā’īnī believes that limiting tyranny is not possible without the realization of the main cause of that limitation, which is establishment of the Parliament. (Fayarḥī, Āstāni-yi Tajaddud, p. 335)</ref>. Therefore, [[legislation]] is obligatory as the prelude to implementing obligations<ref name="ref26">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59</ref>.

===The difference between innovated false beliefs and innovative matters===
Also, in order to legitimize the formulation of laws and the necessity of following them, in response to the doubt raised by the opposers’ who believe that [[legislation]] in the area of permissible matters is [[Bid'ah|heretical]] and an innovated false belief, Nā’īnī compares law to non-obligatory matters, which become obligatory by a [[Nazar (Islam)|Naḏr]], vow, oath, or as making a condition beside a binding contract<ref name="ref27">Khomeini, Ṣaḥīfi-yi Imam, vol. 14, p. 377</ref>. By differentiating between innovated false beliefs and innovative matters, he considers innovated false beliefs to occur when a non-forged religious matter is presented as a forged religious matter and made necessary. He believes that without this title, there can be no innovative false belief<ref name="ref28">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59</ref>.

===Approving the conduct of the wise in legislations by the Lawmaker===
According to [[Mohammad Javad Fazel Lankarani|Muhammad Javād Fāḍil Lankarānī]], [[legislation]] is basically a wise conduct to satisfy the needs of the society and this has not been rejected by the Lawmaker. Therefore, [[legislation]] is originally permissible in Islam. He believed that the absence of laws may lead to chaos and disruption of the system, and the Lawmaker does not allow disruption<ref name="ref29">Amīnīpajūh and Ka‘bī, Mabānī-yi Kalāmī-yi Qānūn Guḏārī va Āthār-i Fiqhī va Ḥuqūqī-yi Ān dar Ḥukūmat-i Islāmī, pp. 9-23</ref>.

===The lawfulness of non-independent legislation===
After the victory of the [[Islamic Revolution of Iran]], those [[jurists]] who were influential in this victory acknowledged the need of the [[Islamic society]] and government for laws<ref name="ref30">Khomeini, Ṣaḥīfi-yi Imam, vol. 15, p. 312</ref> and believed that the obligation of legislative processes is at utmost clarity because of the expansion of governments and the multiplicity of novel events and the necessity of drawing the main lines for administering the society<ref name="ref31">Khomeini, Vilāyat-i Faqīh, pp. 43-44; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 60; Javādī Āmulī, Vilāyat dar Qur’ān, p. 144; Subḥānī, Ilāhīyyāt ‘Alā Hudā al-Kitāb va al-Sunnah va al-‘Aql, vol. 2, p. 81</ref>. They considered it necessary to obey the approved law, even if it is against a person's opinion<ref name="ref32">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-60</ref>.

According to them, the nature of [[legislation]] in the [[Islamic government]] is different from [[legislation]] in other governments<ref name="ref33">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-60</ref> and they believed that it includes the three stages of [[legislation]], recognition and planning<ref name="ref34">Amīnīpajūh and Ka‘bī, Mabānī-yi Kalāmī-yi Qānūn Guḏārī va Āthār-i Fiqhī va Ḥuqūqī-yi Ān dar Ḥukūmat-i Islāmī, pp. 9-23</ref>. This group of [[jurists]], particularly [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]], believed that the right of lawmaking belongs exclusively to God, and even the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]] does not share this right with Him<ref name="ref35">Khomeini, Ṣaḥīfi-yi Imam, vol. 15, p. 312</ref>. After the enactment of laws by God and enouncing them through the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]], it is time to recognize the divine laws and extract them from the sources of religion. This is done by the [[Imams (AS)]] through citing the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]] and the [[ijtihad]] of [[jurists]]<ref name="ref36">Khomeini, Vilāyat-i Faqīh, pp. 43-44; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59; Subḥānī, Al-Taqnīn fī al-Ḥukūmat al-Islāmīyyah, pp. 238-258</ref>. According to this opinion, customary [[legislation]] in the [[Islamic government]] will basically be the adaptation of new events to Islamic standards and regulations<ref name="ref37">Ahvāzī, Imam Khomeini bi Ravāyat-i Ayatollah Hāshimī Rafsanjānī, p. 155</ref>. This group of [[jurists]], citing some theological propositions such as the exclusiveness of [[legislation]] to God, finality, comprehensiveness and universality of [[Islamic Sharia]], believe that Islam has left no issue without a ruling so that there would be a need to make a decision about it<ref name="ref38">Hāshimī, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 2, p. 734</ref>. For this reason, in the [[Islamic government]], the [[parliament]] does not have the right to legislate and its special task is only to recognize the issue<ref name="ref39">Mihrpūr, Didgāh-hāyi Jadīd dar Masā’il-i Ḥuqūqī, p. 48</ref>, advise and plan on how to implement the [[Sharia]]<ref name="ref40">Khātam Yazdī, Ab‘ād-i Fiqhī-yi Imam Khomeini, p. 114</ref>.
By applying the opinions of these [[jurists]] in drafting the [[Constitution]], according to Article 72 of this law, the [[Islamic Consultative Assembly]] must enact regulations that are in line with Islamic standards. For this reason, in principle 91, an institution was foreseen next to the Assembly to verify the non-contradiction of the Assembly's enactments with the standards of [[Sharia]] and the [[Constitution]]. According to [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]], the Assembly, upon recognizing the issue, leaves it to the [[Guardian Council]] to determine the verdict<ref name="ref41">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, p. 80</ref>. However, when dispute occurred between the Assembly and the [[Guardian Council]]<ref name="ref42">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, p. 81</ref> regarding laws such as urban land law and labor law, [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] gave some freedom to the Assembly in [[legislation]] by citing titles such as necessity and [[Maslaha|expediency]], and also limited the authenticity of the [[Guardian Council]]’s recognition by forming the [[Expediency Discernment Council]]<ref name="ref43">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, pp. 81-82</ref>.

===Lawfulness of legislation under the supervision of the guardian===
Giving legislative authority to the [[Wali al-Faqih|guardian]] is another opinion that some [[contemporary jurists]] hold. According to this opinion, [[legislation]] is a kind of enforcement of [[guardianship]], and the enactments of legislative bodies become law only with the approval of the [[Wali al-Faqih|guardian]]<ref name="ref44">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, p. 85</ref>. [[Mohammad Momen|Muhammad Mu’min]], a [[contemporary jurist]], believes that the administration of the society requires [[legislation]] about matters that have no verdict in the [[Sharia]]<ref name="ref45">Khātam Yazdī, Ab‘ād-i Fiqhī-yi Imam Khomeini, p. 115</ref>. According to him, in the administration of the [[Islamic society]], the [[Wali al-Faqih|guardian]] realizes certain interests and harms, based on which he establishes necessary rulings and laws, which have no trace in the rules of religion, and it is necessary for all members of the [[Islamic society]] to obey those laws<ref name="ref46">Mu’min, Qavānīn-i Thābit va Mutighayyir, p. 60 and pp. 73-74</ref>. He believes that since God the Exalted has appointed the [[Wali al-Faqih|guardian]] as the leader of the [[Islamic Ummah|Islamic nation]], based on the [[divine guardianship]], [[legislation]] about matters related to the administration of the affairs of the nation rests with him<ref name="ref47">Miṣbāḥ Yazdī, Naẓarīyi-yi Sīāsī-yi Islam, vol. 1, p. 112</ref> and the [[Wali al-Faqih|guardian]] can establish institutions and entities such as the [[Parliament]] to make laws<ref name="ref48">Miṣbāḥ Yazdī, Naẓarīyi-yi Sīāsī-yi Islam, vol. 1, p. 112</ref>. [[Abbas Khatam Yazdi|‘Abbās Khātam Yazdī]], as well, considers [[legislation]] in the country’s organs and entities along the [[guardianship]] of the [[Wali al-Faqih|guardian]], not parallel to it and believes that the [[Wali al-Faqih|guardian]] can remove or cancel the law in any scope he wants<ref name="ref49">Khātam Yazdī, Ab‘ād-i Fiqhī-yi Imam Khomeini, p. 115</ref>.
Mu’min holds that the general rules of [[Sharia]] are constant and permanent laws that do not change (except with new secondary titles which require a temporary secondary ruling) and the duty of the [[Islamic government]] is only to implement these constant laws and does not have the right to legislate even in that area. However, implementing the rules of [[Sharia]] and supervising their proper implementation in all areas requires the establishment of regulations that are referred to as variable laws that change with the change of conditions. According to him, the [[Wali al-Faqih|guardian]] establishes regulations based on what he deems expedient so that both the people can better find their way and the authorities may know what they are responsible for<ref name="ref50">Mu’min, Qavānīn-i Thābit va Mutighayyir, p. 60 and pp. 73-74</ref>.
In another explanation for this theory, [[Mohammad-Taqi Mesbah-Yazdi|Muhammad Taqī Miṣbāḥ Yazdī]], believes that [[legislation]] in the [[Islamic government]] is valid under the supervision of the [[Wali al-Faqih|guardian Islamic jurist]] which goes back to God in the form of a hierarchy. According to him, anyone whom God credits, such as the [[Prophet Muhammad (PBUH)|Prophet]], has valid words, and also the words of anyone whom the [[Prophet Muhammad (PBUH)|Prophet]] appoints, such as the [[Ali ibn Abi Talib|Amīr al-Mu’minīn]], are valid for us, and so are the words of anyone who is, specifically or in general statement, appointed by the [[The Fourteen Infallibles|Infallible people]]. Therefore, the regulations and laws issued by the above hierarchy are divine and Islamic. According to Miṣbāḥ Yazdī, in the [[Islamic government]], this approval may arrive through several intermediaries. For instance, the validity of the [[Wali al-Faqih|guardian Islamic jurist’s]] approval depends on the approval of the [[The Fourteen Infallibles|Infallible Imam]], and the validity of the decisions and approvals of the [[The Fourteen Infallibles|Infallible Imam]] depend on approval by the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]], and finally, it is the validity of the [[Prophet Muhammad (PBUH)|Prophet’s]] approval that has been proved by the text of the [[Qur'an]]<ref group="note" name="note3">“یَا أَیُّهَا الَّذِینَ ءَامَنُوا أَطِیعُوااللَّهَ وَ أَطِیعُوا الرَّسُولَ وَ أُوْلِی الأمْرِ مِنْکُمْ” [O you who have faith! Obey God and obey the Messenger and those vested with authority among you] (surah al-Nisā’, verse 59).</ref><ref name="ref51">Miṣbāḥ Yazdī, Naẓarīyi-yi Sīāsī-yi Islam, vol. 1, p. 112</ref>.

==Dependent queries==
* [[Legislation]]
* [[Converting jurisprudential rules into law|Legislation of jurisprudential rules]]
* [[Legislation (study resources)|Legislation study resources]]
* [[Standard fatwa]]
* [[Guardian Council]]
* [[The relationship between law and Sharia|The relationship between law and Sharia]]

==Notes==
{{references}}
<references group="note"/>
{{end}}

==footnotes==
{{footnotes}}
== references ==
{{references}}
* Amīnīpajūh, Hussein, and Ka‘bī, ‘Abbās, Dar Justujūyi Naẓarīyi-yi Qānūn Guḏārī dar Āthār-i Barkhī as Faqīhān-i Mu‘āṣir-i Imāmīyi, Ḥukūmat-i Islāmī quarterly, No. 87, 2019
* Amīnīpajūh, Husseing, and Ka‘bī, ‘Abbās, Mabānī-yi Kalāmī-yi Qānūn Guḏārī va Āthār-i Fiqhī va Ḥuqūqī-yi Ān dar Ḥukūmat-i Islāmī, Ḥukūmat-i Islāmī quarterly, No. 2, 2019
* Ahvāzī, ‘Abd al-Razzāq, Imam Khomeini bi Ravāyat-i Ayatollah Hāshimī Rafsanjānī, Mu’assisi-yi Tanẓīm va Nashr-i Āthār-i Imam Khomeini, 2007
* Bihishtī, Sayyid Muhammad Husseinī, Mabānī-yi Naẓar-i Qānūn-i Asāsī, Tehran, Bunyād-i Nashr-i Āthār-i Shahīd Bihishtī, 2012
* Tabrīzī, Kashf al-Murād min al-Mashrūṭah va al-Istibdād, Rasā’il-i Mashrūṭīyyat gathered by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Javādī Āmulī, ‘Abdullāh, Vilāyat dar Qur’ān, Qom, Isrā’, 2009
* Husseinī Tehranī, Sayyid Muhammad Hussein, Vilāyat-i Faqīh dar Ḥukūmat-i Islāmī, Mashhad, ‘Allāma Ṭabāṭabāei, 2000
* Khātam Yazdī, ‘Abbās, Ab‘ād-i Fiqhī-yi Imam Khomeini, Fiqh-i Ahl al-Bayt journal, vol. 19-20, 1999
* Khomeini, Sayyid Rūḥullāh, Ṣaḥīfi-yi Imam, Tehran, Mu’assisi-yi Tanẓīm va Nashr-i Āthār-i Imam Khomeini, 1999
* Khomeini, Sayyid Rūḥullāh, Vilāyat-i Faqīh, Tehran, Mu’assisi-yi Tanẓīm va Nashr-i Āthār-i Imam Khomeini, 2000
* Subḥānī, Ja‘far, Al-Taqnīn fī al-Ḥukūmat al-Islāmīyyah, Kitāb al-Ijtihād va al-Ḥayāt: Ḥavār ‘Alā al-Varaq, Dāyirat al-Ma‘ārif-i Fiqh al-Islāmī, 2005
* Subḥānī, Ja‘far, Ilāhīyyāt ‘Alā Hudā al-Kitāb va al-Sunnah va al-‘Aql, Qom, al-Markaz al-‘Ālamī lil-Dirāsāt al-Islāmīyyah, 1991
* Ṣadr, Sayyid Muhammad Bāqir, Al-Islam Yaqūd al-Ḥayāt, Tehran, Vizārat-i Irshād-i Islāmī, 1983
* Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Tehran, Idāri-yi Kull-i Umūr-i Farhangī va Ravābiṭ-i ‘Umūmī-yi Majlis-i Shūrā-yi Islāmī, 1985
* ‘Amīd Zanjānī, ‘Abbās‘alī, Fiqh-i Sīāsī, Tehran, Amīr Kabīr, 2000
* Fāḍil Lankarānī, Muhammad Javād, Nisbat-i Fiqh va Qānūn, Miftāḥ-i Kirāmat website, 2017
* Fayarḥī, Dāvūd, Āstāni-yi Tajaddud, Tehran, Ney, 2015
* Mu’min, Muhammad, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, Fiqh-i Ahl-i Bayt journal, No. 55, no date
* Mu’min, Muhammad, Qavānīn-i Thābit va Mutighayyir, Fiqh-i Ahl-i Bayt journal, No. 56, no date
* Maḥallātī, Muhammad Ismā‘īl, Rasālah al-Li’ālī Marbūṭah fī Vujūb al-Mashrūṭah, Rasā’il-i Mashrūṭīyyat gathered by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1995
* Miṣbāḥ Yazdī, Muhammad Taqī, Naẓarīyi-yi Sīāsī-yi Islam, Qom, Mu’assisi-yi Āmūzishī va Pajūhishī-yi Imam Khomeini, 2012
* Muntaẓirī, Husseinali, Dirāsāt fī Vilāyat al-Faqīh va Fiqh al-Daulat al-Islāmīyyah, Qom, Tafakkur, 1989
* Mihrpūr, Hussein, Didgāh-hāyi Jadīd dar Masā’il-i Ḥuqūqī, Tehran, Iṭṭilā‘āt, 2009
* Nā’īnī, Muhammad Hussein, Tanbīh al-Ummah va Tanzīh al-Millah, Qom, Būstān-i Kitāb, 2003
* Unknown, Rasālah Taḏkirat al-Ghāfil va Irshād al-Jāhil, Rasā’il, Maktūbāt, the martyred Sheikh Faḍlullāh Nūrī’s announcements and newspaper gathered by Muhammad Turkamān, Tehran, Nashr-i Khadamāt-i Farhangī-yi Rasā, 1984
* Najafī Iṣfahānī, Āqā Rūḥullāh, Mukālimāt-i Muqīm va Musāfir, Rasā’il-i Mashrūṭīyyat gathered by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Najafī Marandī, Abulḥasan, Dalā’il Barāhīn al-Furqān fī Buṭlān-i Qavānīn-i Navāsikh-i Muḥkamāt al-Qur’ān, Rasā’il-i Mashrūṭīyyat gathered by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Nūrī, Faḍlullāh, Ḥurmat-i Mashrūṭih, the martyred Sheikh Faḍlullāh Nūrī’s treatises, writings, announcements and newspaper gathered by Muhammad Turkamān, Tehran, Nashr-i Khadamāt-i Farhangī-yi Rasā, 1984
* Hāshimī, Sayyid Muhammad, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Tehran, Mīzān, 2012

[[fa:قانون‌گذاری عرفی]]
[[ar:سنّ القوانين العرفية]]
[[Category:Contemporary Jurisprudence Articles]]

Turning Jurisprudential Rules into Law

2026-10-06T20:23:59Z

Enadmin:

{{Author
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* '''abstract'''
'''Turning jurisprudential rules into law''' (in Persian: [[:fa:قانون‌گذاری_احکام_فقهی|قانون‌گذاری احکام فقهی]]) or '''legislating [based on] the Sharia''' is considered of the necessities of governance in the contemporary era in Islamic societies. In this process, jurisprudential rules take the form of law, and governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined for them. Shia and Sunni scholars are more inclined to permit turning jurisprudential rules into law with certain conditions, and in some cases, they even consider it necessary in the current era. Conversely, some jurists believe that it is not permissible to turn jurisprudential rules into law; because, according to them the laws of Islam are clear and enforceable and there is no need to re-legislate them. In addition, some do not allow the turning of non-controversial rulings of Sharia into law; but in the area of conflicting rulings, they have left it to legislative institutions to choose one opinion.
Converting jurisprudential rules into binding laws based on the theory of permissibility has certain conditions and requirements, the non-observance of which undermines the effectiveness of jurisprudence for the administration of society. Among these conditions are the adoptions of fatwas in accordance with the principle of justice, paying attention to fatwas that create efficient laws, explicitness of the words of the law that is derived from jurisprudence, giving authenticity to the law against the fatwa, and avoiding uncommon statements and fatwas. Jurisprudence researchers have also listed obstacles for turning the Sharia into law, which include lack of a governmental perspective on jurisprudence, differences between fatwas and the plurality of authorities, and the uncertainty of the standard fatwa.

==Explanation of the issue, its status and importance==
Turning the Sharia or jurisprudence into an enforceable law and the reflection of jurisprudence in approved laws is one of the areas of legislation in Islam that attracted the attention of religious thinkers, jurists and lawyers with the introduction of the concept of law into the Islamic world.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, p. 173.</ref> According to researchers of law, Islamic jurisprudence was turned into law in the face of the new world for the purpose of continuation of jurisprudential rules in the contemporary society.<ref> Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, p. 158.</ref> They believe that turning jurisprudential rules into legally binding laws is of the necessities of governance in the contemporary era in Islamic societies <ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 100; Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 31.</ref>, and that the rule of law requires that all the affairs of the society be based on general and public laws and rules, based on which people can enjoy their rights and duties. Also, governmental affairs should be implemented through the law, and arbitrariness and aggression should be prevented.<ref>Hāshimī, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 3, p. 133.</ref>
Before the Constitutional Revolution of Iran, conversion of the rules of Sharia into law first began in the territory of the Ottoman Empire with the compilation of collections such as the Basic Law (Constitution of the Ottoman Empire) and the Mecelle-i Ahkām-ı Adliye (the Mecelle)<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, pp. 36 and 38.</ref> and was followed in other countries such as India, and Iran during the Constitutional era and the Islamic Republic through compiling laws such as the Civil Law.<ref>Amīn, Tārīkh-i Ḥuqūq-i Iran, p. 542; Kāẓimī, Qānūn-i Madanī yā Fiqh-i Farsī: Jastārī dar Manābi‘ va Sākhtār-i Qānūn-i Madanī-yi Iran, pp. 256-259.</ref> <ref>Kātūzīyān, Ḥuqūq-i Madanī: Qavā‘id va Qarārdādhā, p. 232.</ref> In the Islamic Republic of Iran, jurisprudential rules have turned into law in various constitutional, civil, criminal and commercial areas.<ref>‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 726.</ref>
Jurisprudential rules are turned into legally binding laws with the aim of creating a guarantee of implementation for them.<ref>Mamḥaṣānī, Falsafi-yi Tashrī‘ dar Islām, p. 343.</ref> According to religious researchers, mere compliance with Sharia does not guarantee the implementation of Sharia rulings. Therefore, it is necessary for Sharia rulings to find a legal form so that the government, in addition to the existing Sharia requirements, would introduce them as its wishes and take on the responsibility to comply with them.<ref>Kāfī, Ta‘yīnāt-i Ijtimā‘ī-yi Fiqh va Qānūn, p. 70.</ref> Also, about the necessity of turning the rules into law, it has been said that since jurisprudence lacks subjectology and suffices with stating the rules, in order to adapt jurisprudential rulings to social realities, we need to turn these rulings into law.<ref>Abulḥasanī and Fattāḥī, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, p. 31.</ref>
===Challenges===
Converting the rules of Sharia into enforceable governmental laws faces questions and challenges. These questions include: What is the nature of this type of legislation? Does the Sharia allow such legislation despite the existence of jurisprudential books and practical treatises? Do legislative institutions such as the parliament have the authority to convert the rules of Sharia into law? In case of permission, can every rule of the Sharia be turned into a law, and is the government responsible for the implementation of all obligations and prohibitions? Can private relationships between individuals, such as employee-employer relationships and giving the right to divorce to women, be converted to public laws? In the transition from jurisprudence to law, what is the role of public interests and the goals of the Islamic government? What are the requirements and conditions of converting the Sharia into law? What obstacles are there in the way of this type of legislation? Some of these questions and challenges have been addressed in the interaction between jurists and lawyers and in jurisprudential researches.
==Conceptology==
The conversion of Sharia into law, which is also referred to as legislating [based on] the Sharia, is the process through which the orders of Islamic Sharia and jurisprudence take the form of law, for which governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined.<ref>Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 159-160.</ref> Converting Islamic jurisprudence into law has been considered as a process by which jurisprudence leaves its traditional form and becomes classified into topics and sections and exhibits itself in the form of articles, clauses and notes, and the result will be the use of jurisprudence by the entire society, not only by jurists.<ref>Qarḍāvī, Madkhal lil-Dirāsat al-Sharī‘ah al-Islāmīyyah, p. 297.</ref> Qarḍāvī, a Sunni jurist, has also defined converting jurisprudence into law as codifying jurisprudential rules in the form of legal articles hierarchically, with a certain order, and in the style of new laws<ref> Qāsim, Al-Islām va Taqnīn al-Aḥkām, p. 73.</ref>. In this regard, it has also been said that conversion of Sharia into law means that the rules of Sharia should be codified into orderly and legal phrases and articles, so that the ruler can issue mandatory orders based on them.<ref>Ismā‘īlī and Mīrluḥī, Āthār-i Pazīrish-i Qā‘idi-yi Nafy-i Khulv dar Niẓām-i Qānūnguḏārī-yi Iran, p. 78.</ref>
===Methods of converting the Sharia into law===
Converting the Sharia into law has been depicted in three methods:
Considering practical treatises as law and obliging people to comply with them: This method presupposes that the rules of Sharia are comprehensive and that the rules of Islam respond to all human needs.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 175-176.</ref>
Converting the issues mentioned in jurisprudence books into modern laws: This method is more commonly used today, and in cases where the Sharia is silent, the parliament has made legislations.<ref>Ka‘bī, Mabānī-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, p. 122.</ref>
Legislation based on ijtihad: Those who support systematization and government jurisprudence consider this method to be suitable for converting the Sharia into law and believe that laws should be formulated based on systematic ijtihad, its results, and the needs of the Islamic government.<ref>18. Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 46; Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 185 and 191.</ref>
==Points of view==
Shia jurists have presented several opinions about the permissibility or impermissibility of converting the rules of Sharia into law.
* Most Shia and Sunni scholars tend to permit converting the rules of Sharia into law, and in some cases, they have even considered it necessary and beneficial in the current era; because, in this way, the power of the government is used to implement the regulations of Islam.<ref>Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, p. 345; Ibid, vol. 2, p. 84.</ref> They believe that man does not have the right to invent laws due to lack of complete awareness of his interests and harms. However, the necessities of life require him to codify Islamic rules in the form of common human laws. They call the conversion of jurisprudential rules into law as a form of informing all the people about the rules of Islam and they believe that such work will make the rules of Sharia more efficient and effective.<ref>Ṣadr, Lamḥah Fiqhīyyah Tamhīdīyyah ‘an Mashrū‘-i Dastūr al-Jumhūrīyyah al-Islāmīyyah fī Iran, pp. 22-23.</ref> According to Sayyid Mohammad Bāqir al-Ṣadr, a contemporary jurist, religious rules are either definitive, about which there is no jurisprudential difference of opinion and which are included within the text of law, or are part of the jurisprudential rules about which there is some controversy, and the legislative power is in charge of choosing one opinion.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 188-189 and 191.</ref>
* On the other hand, some jurists did not consider converting the Sharia into law to be permissible; because in their opinion, the laws of Islam are clear and enforceable and there is no need to re-legislate them. Also, since the members of parliament are non-jurists, they are not allowed to do so.<ref>Idāri-yi Kull-i Umūr-i Farhangī-yi Majlis-i Shūrā-yi Islāmī, Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 1, p. 409.</ref> In the final assembly of the review of the Constitution of the Islamic Republic of Iran, some jurists such as Luṭfullāh Ṣāfī Gulpāygānī pointed out that the conditions of religious rules, such as enjoining what is good and forbidding what is evil, are specified in the Sharia. Therefore, they believe that it is no longer necessary to require the law to determine conditions and limits for their implementation.<ref>Nā’īnī, Tanbīh al-Umma va Tanzīh al-Millah, pp. 135-138.</ref>
*Amid the above two views, there are jurists such as Mīrzā Nā’īnī who consider the competence of the legislative body to be limited to variable rules that are subject to the interests and requirements of the time. They believe that the parliament does not have the authority to confer on legislation about the fixed rules of the Sharia.<ref>Muhammadī Karajī, Ilzām Āvarī-yi Sharī‘at Qabl az Taqnīn yā Tadvīn va Rābiṭi-yi ān bā Aṣl-i Ḥākimīyyat-i Qānūn, p. 177.</ref> In this regard, it is said that the explicit and definite rules of the Sharia, about which there is no considerable disagreement among jurists, are enforceable and there is no need for legislations about them.<ref>Ka‘bīnasab and Muhammadī Karajī, Barrisī-yi Ṣalāḥīyyat-i Majlis-i Shurā-yi Islāmī dar Taqnīn-i Aḥkām-i Shar‘ī, pp. 72 and 86.</ref> However, there are no limitations or prohibitions on making laws about indeterminate and controversial rules, in order to determine the duties of people and the government.<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, pp. 103-105.</ref>
==Obstacles==
Religious researchers believe that the conversion of jurisprudential rules into law faces certain obstacles, the most important of which are the absence of a governmental view on jurisprudence, the difference of fatwas and the plurality of authorities, the change of fatwas based on the conditions of time and place, and the uncertainty of the standard fatwa.
An individual view on jurisprudence: The predominance of an individual view in explaining jurisprudential rules and determining the duties of individuals without considering their collective identity by the jurist have been mentioned among the obstacles to converting the rules [of Sharia] into law. According to Ahmad Hājī Dihābādī, a researcher in Islamic law, due to the creation of some ambiguities when issuing a rule and implementing it, it is necessary to avoid to reflect, in the law, those rules that are written with an individualistic jurisprudential attitude. Moreover, a governmental approach to jurisprudence is required to convert jurisprudential rules into law.<ref>Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 92-93; Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 105.</ref>
The difference of jurisprudential fatwas: Adapting the approved laws to Islamic standards and regulations is one of the conditions for the correctness of legislation in the Islamic government. However, if there are different fatwas on one issue, which of them becomes the criterion for legislation? This is considered an important challenge and of the obstacles to converting jurisprudential rules into law.<ref>Samāvātī and Mūsavī Bujnūrdī, Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī …, pp. 43-58; Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 95-101.</ref> The fatwa of the ruling jurist, the fatwa of the most knowledgeable Mujtahid (expert in islamic jurisprudence), the fatwa of jurists of the Guardian Council, the efficient fatwa, the fatwa according to caution and the well-known fatwa are among the solutions to this challenge that have been presented by researchers.<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.</ref>
==Conditions and requirements==
Based on the theory of permissibility, the conversion of jurisprudential rules into binding law has certain conditions and requirements, the non-observance of which will cause disruptions in the legislative process and damage to jurisprudence and law. It will also undermine the effectiveness of jurisprudence for the administration of society.<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.</ref> Systematic ijtihad;<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.</ref> adopting fatwas in accordance with the principle of justice; paying attention to fatwas that create effective laws;<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 112.</ref> complete familiarity with jurisprudence, law<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.</ref> and legal relations;<ref>Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.</ref> explicitness of the wording of the law derived from jurisprudence; preventing the approval of laws that give rise to crime,<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.</ref> giving authenticity to the law against the fatwa,<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.</ref> avoiding uncommon statements and fatwas, avoiding reprehensible legal eclecticism<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/ .</ref> and the existence of intermediary institutions between the legislator and the institution of jurisprudential ijtihad<ref>Ibid</ref> are among the requirements and conditions of legislation based on jurisprudence that have been pointed out by religious researchers.
*Systematic ijtihad: According to Ahmad Muballighī, a researcher in jurisprudence, in order to legalize jurisprudence, beside the ijtihad that exists in the seminary, we require a systematic ijtihad that is directed toward the collection and the laws surrounding a subject. He believes that law is not formed by one single fatwa; rather, we need a jurisprudential theory.<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute</ref>
*Adoption of fatwas that are based on the principle of justice: According to Nāṣir Qurbān-nīyā, a researcher in jurisprudence and law, the legislator must set the principle of justice as the standard of lawmaking and, for this purpose, choose the fatwa that best covers justice, even if it is not the famous fatwa of the jurists. He believes that there are various jurisprudential theories, some of which can better ensure the efficiency and freedom of citizens and justice for them.<ref>‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.</ref>
*Explicitness of the wording of the law that is derived from jurisprudence: Despite differences of opinion in jurisprudential fatwas, the legislator must use words that cannot be interpreted differently and controversially. Also, jurisprudential jargon must be avoided when converting jurisprudential rules into law
*to avoid confusing the law enforcer.<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.</ref>
*Recognizing the law as the final word: According to Sayyid Javād Vara‘ī, when Jurisprudential rules turn into law after approval by the Parliament, they must be the final word in social matters and no jurist’s idea should be above them, even if citizens follow various marjas and their marjas’ fatwas differ with the law.<ref>Husseinī, Farhang-i Lughāt va Iṣṭilāḥāt-i Fiqh-i, p. 139.</ref>
*Avoiding reprehensible legal eclecticism: Reprehensible legal eclecticism means performing an act or presenting a ruling or statement that has been derived and combined from several denominations, such that that action or ruling belongs to none of those denominations and none of them considers it as right.<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.</ref> On this basis, a law that is made through combining the ideas of a number of jurisprudential denominations about a religious issue is, in fact, an ineffective law.<ref>Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 163-166.</ref>
==Further reading==
Converting Islamic jurisprudence into law first took place in the Majallat al-Aḥkām al-‘Adlīyyah by a group, consisting of seven Islamic scholars, based on Hanafi jurisprudence, in sixteen books and a total of 1851 legal articles. In later modifications to update it, however, the opinions of other denominations were also referred to, and a section on comparative jurisprudence was added.<ref>Ibid, pp. 166-167.</ref> After publication of the Majallat al-Aḥkām al-‘Adlīyyah, it was critiqued and evaluated by scholars of other denominations. One such critique is the book Taḥrīr al-Majallat by Muhammad Hussein Kāshif al-Ghiṭā who was a Shia scholar living in Najaf.<ref>Kāshif al-Ghiṭā, Taḥrīr al-Majallat, vol. 1, pp. 39-40 and 110.</ref> In this book, he explained, criticized and sought to comprehend the al-Majallat and presented the opinions of Shia jurists alongside the opinions of other Islamic denominations in a comparative manner in the framework of new laws. He also added twenty-three jurisprudential rules to the al-Majallat.
==references==
{{references}}
* Abulḥasanī, Mohsen, and Fattāḥī Zafarqandī, Ali, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, Tehran, Pijvāk-i ‘Idālat, 2024
* Idāri-yi Kull-i Umūr-i Farhangī va Ravābit-i ‘Umūmī-yi Majlis-i Shūrā-yi Islāmī, Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Tehran, Islamic Consultative Assembly publication, 1985
* Ismā‘īlī, Mohsen, and Mīrluḥī, Sayyid Muhammad Hussein, [https://ilr.isu.ac.ir/article%201958.html Āthār-i Pazīrish-i Qā‘idi-yi Nafy-i Khulv dar Niẓām-i Qānūnguḏārī-yi Iran], Ḥuqūq-i Islāmī journal, No. 44, 2017
* Amīn, Sayyid Hasan, Tārīkh-i Ḥuqūq-i Iran, Tehran, Dā’irat al-Ma‘ārif-i Iran Shināsī, 2013
* Bādpā, ‘Ubaydullāh, [https://fiqhemoqaran.mazaheb.ac.ir/article%207304%201e62f8e6aed31b0ed76b56a92d7a2001.pdf Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va Ta’thīr-i ān dar Taqrīb-i Dīdgāhhāyi Maḏāhib-i Islāmī], Fiqh-i Muqārin quarterly, No. 2, 2014
* Jahāngīrī, Mohsen, and Banāyī Khiyrābādī, Muhammad Ali, [https://cjd.razavi.ac.ir/article%201263%2042e834b123c81eec20e35dd62afb387f.pdf Fatwāyī Mi‘yār dar Qānūnguḏārī; Inṭibāq bā Maṣāliḥ-i Ilzāmī], Āmūzihāyi Madanī quarterly, No. 23, 2021
* Ḥājī Dihābādī, Ahmad, [https://qabasat.iict.ac.ir/article%2017081%2084e867390bf5a027523355773053c98b.pdf Fiqh va Qānūn-nigārī], Qabasāt quarterly, No. 15-16
* Husseinī, Muhammad, Farhang-i Lughāt va Iṣṭilāḥāt-i Fiqh-i, Tehran, Surūsh, 2007
* Samāvātī, ‘Abbās, and Mūsavī Bujnūrdī, Sayyid Mustafa, [https://matin.ri-khomeini.ac.ir/article%20128732%2007ff346eed64b69e0fa2efbd01561528.pdf Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī bā Tavajjuh bi Ārā-yi Imam Khomeini], Matīn quarterly, No. 87, 2020
* Ṣadr, Muhammad Bāqir, Lamḥah Fiqhīyyah Tamhīdīyyah ‘an Mashrū‘-i Dastūr al-Jumhūrīyyah al-Islāmīyyah fī Iran, Qom, Maṭba‘ah al-Khīyām, 1990
* ‘Azīzullāhī, Muhammadriḍā, [https://www.sid.ir/fa/seminar/ViewPaper.aspx?ID=80499 Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī va Mavāni‘ va Rāhkārhā-yi Ān, collection of papers of the national conference of the new Islamic civilization], Shāhid university, 2015
* Ghamāmī, Sayyid Muhammad Mahdi, and Mīrluḥī, Sayyid Muhammad Hussein, and Javādīyyih, Ali, [http://qjrl.cmirq.ir/article-1-236-fa.pdf Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn], Dīn va Qānūn quarterly, No. 19, 2021
{end}}

==footnotes==
{{footnotes}}
[[fa:قانون‌گذاری احکام فقهی]]
[[Category:Contemporary Jurisprudence Articles]]
[[ar:تقنين الأحكام الفقهية]]

Lawmaking

2026-10-06T20:03:42Z

Enadmin:

{{Author
|author = Alireza Salehi
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* '''abstract'''
'''Lawmaking (in Persian: [[:fa:قانون‌گذاری|قانون‌گذاری]])''' is subjest of this Articles. From the point of view of some [[contemporary jurists]], [[legislation]] and the formation of law-making institutions in [[Islamic societies]] were seen to be in conflict with the right of [[divine legislation]]; therefore, they opposed it. On the other hand, some [[jurists]] saw it in line with [[divine legislation]] and a solution for the implementation of the [[Sharia]] and started to internalize it in their jurisprudential system. After proposing the concept of law in its new meaning since the [[Iranian Constitutional Era]] until now, [[jurists]] have agreed on the need of the society and the government for law. However, the difference in attitudes about what law is and by whom and in what scope it should be approved caused confusion about the concept of law, as well as the [[legitimacy]] of the law-making institutions. Answering these questions based on the theoretical foundations that every [[jurist]] believes in has led to the adoption of opposing positions and [[Fatwa|fatwas]] about the [[legitimacy]] of [[legislation]]. The issue of [[legislation]] is not included under the usual chapters of [[jurisprudence]] in [[jurisprudence]] books. However, it has been studied in the form of monographs about topics related to the [[Islamic government]], including the duties of the [[Islamic ruler]] and the legislative power, as well as the relationship between law and the [[Sharia]].
[[Legislation]] has been discussed in the two areas of [[customary lawmaking|customary and public matters]], and the [[Converting jurisprudential rules into law|conversion of jurisprudential rules into law]]. [[Shia jurists]] have provided several opinions about the [[legitimacy]] of [[legislation]] in the area of public affairs. Some [[jurists]], believing in the exclusiveness of the right to legislate to the Lawmaker, have considered the establishment of legislative bodies, including the [[parliament]], to be against religious teachings. On the other hand, some [[jurists]] consider it necessary to legislate in the area of matters that are not mentioned in textual contents (Manṭiqah al-Firāgh). After the victory of the [[Islamic Revolution of Iran]], believing in the exclusiveness of the right to legislate to the Lawmaker, the [[jurists]] influential in this victory rejected independence in [[legislation]]. However, due to the government's need for laws, they have accepted the existence of legislative institutions, such as the [[parliament]], under titles such as the planning and consultation council. The conversion of jurisprudential rules into binding law or the reflection of [[jurisprudence]] in the approved laws is also considered as one of the necessities of governance in the contemporary era. Creating a guarantee of execution for jurisprudential rulings is considered the main reason for turning [[jurisprudence]] chapters into binding laws. Nonetheless, some [[jurists]] did not consider it permissible to convert the rules of [[Sharia]] into law; because, in their opinion, the laws of Islam are clear and practicable and there is no need to re-legislate them.
Assuming the permissibility of forming legislative institutions, to ensure the compatibility of approved laws with the [[Sharia]] and also to resolve the conflict between law and [[jurisprudence]], solutions have been presented such as the [[first-rank law]], the formation of institutions such as the [[Guardian Council]] and the [[Expediency Discernment Council]] and also settlement of the conflict with the [[governmental ruling|governmental law]].

==Explanation of the issue, its status and importance==
The word “law” has been considered the most important word in contemporary Iran, which has been the focus of disputes about politics and religion for nearly two hundred years<ref>Fayarḥī, Mafhūm-i Qānūn dar Irān-i Mu‘āṣir, p. 11</ref>. [[Legislation]], particularly drafting the [[Constitution]], is related to the regulation of relations between the ruling powers in the political system<ref>Fayarḥī, Āstāni-yi Tajaddud, p. 271</ref>, preventing the government and rulers from aggression<ref>Nā’īnī, Tanbīh al-Umma, pp. 88-89</ref>, limiting their power<ref>‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, p. 110</ref> and regulating social relations between people<ref>Mūsavī Khalkhālī, Ḥākimīyyat dar Islām yā Vilāyat-i Faqīh, p. 682</ref>. According to [[Abbas-Ali Amid Zanjani|‘Amīd Zanjānī]], even monotheistic systems require new legislations despite the existence of the comprehensive [[divine comprehensive law]]; because, man has been given many powers in a wide range of permissible matters, as well as in the recognition and comparison of secondary topics, and law paves the way for man’s growth and development and the provision of [[justice]] and security<ref>‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-122</ref>.
The approach of [[jurists]] to the issue of [[legislation]] from the very beginning during the [[Iranian Constitutional Era]] as well as during the era of the [[Islamic Republic of Iran]] has caused the formation of special types of legislative assemblies and also different conditions for [[legislation]]. The establishment of institutions supervising the legislative processes, the need to adapt approved laws to Islamic regulations and standards, the possibility of revoking laws by superior institutions and thus giving a secondary role to the legislative body, etc., are of the effects of these approaches on the legislative process in [[Islamic societies]], particularly in Iran.

==Previous literature==
[[Legitimacy]] of [[legislation]] in its modern sense in socio-political affairs, as well as the necessity of converting jurisprudential rules into law, was raised in [[Shia jurisprudence]] in connection with general common rights and within the doctrine of [[The Occultation|Occultation]]<ref>Nā’īnī, Tanbīh al-Umma, p. 71; Fayarḥī, Ākhūnd-i Khurāsānī va Imkānāt-i Fiqh-i Mashrūṭi</ref>. According to these theories, any type of government during the [[The Occultation|Occultation]] is an act of oppression and usurpation<ref>Kadīvar, Sīāsatnāmi-yi Khurāsānī, p. 214; Nā’īnī, Tanbīh al-Umma, pp. 75-79</ref>. However, managing public affairs and the necessities of life does not eliminate the need for government. For this reason, the king or the people should take charge of administering public affairs. During the [[Iranian Constitutional Era]], when the administration of affairs was taken out of the hands of the king and transferred to the people<ref>Kātūzīyan, Tārīkh-i Inqilāb-i Mashrūṭīyat-i Iran, p. 200</ref>, the issue of how to administer the society followed, and the need was felt for law and a lawmaker.
In the face of the idea of seeking laws that entered Muslim’s atmosphere of thought and practice from Western countries, a number of [[jurists]] took a positive approach to internalize it in their jurisprudential systems<ref>Nā’īnī, Tanbīh al-Umma, p. 47; Zargarīnijād, Rasā’il Mashrūṭīyat, p. 310</ref>. On the other hand, some [[jurists]] took a skeptical<ref>Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 2, pp. 166-170</ref> and sometimes negative approach<ref>Kirmānī, Tārīkh-i Bīdārī-yi Iranīān, p. 322</ref>. They either rejected the formulation of a [[Constitution]] and the formation of legislative institutions and the use of the word law<ref>Ṭabāṭabā’ī, Ḥukūmat-i Qānūn, pp. 373-374</ref> or accepted it in a very limited scope<ref>Khusrushāhī, Fadā’īyān-i Islām: Tārīkh, ‘Amalkard, Andīshi, pp. 283-284</ref>. They entered into a conflict with the first group<ref>Nūrī, Lavāyiḥ, pp. 31-32; Turkamām, Rasā’il, Maktūbāt, vol. 1, p. 194; Pāshāzādi, Qānūn-i Asāsī-yi Mashrūṭi-yi Avval va Imkān-i Taraqqī-yi Jāmi‘i-yi ‘Uthmānī az Nigāh-i Jalāl-i Nūrī, pp. 140-143</ref>.

==Position in contemporary jurisprudence==
Islamic and [[Shia]] thinkers faced several questions and challenges when talking about the words of law and [[legislation]]; like, what does law refer to? With the comprehensive [[divine comprehensive law]], is there a need for new legislations in the [[Islamic society]]? Where do the laws approved by legislative bodies get their [[legitimacy]] from? What are the conditions of validity of the approved laws? Do these laws have to comply with religious norms and regulations or is it enough to simply not oppose them? In cases of conflict between [[jurisprudence]] and law, which comes first? And, should [[jurisprudence]] be presented in the form of law in the [[Islamic government]]?<ref>Fāḍil Lankarānī, Nisbat-i Fiqh va Qānūn, meftahe-keramat website</ref>
The issue of [[legislation]] is not included under the usual chapters of [[jurisprudence]] in [[Shia jurisprudential]] texts. However, in the contemporary era and after the [[Iranian Constitutional Revolution]], it has been examined in the form of monographs about topics related to the [[Islamic government]], including the duties of the [[Islamic ruler]] and the [[legislative power]], the [[The relationship between law and Sharia|relationship between law and the Sharia]], and also under topics related to the powers of the [[Wali al-Faqih|guardian jurist]]<ref>Nā’īnī, Tanbīh al-Umma, pp. 45-48 and 87-88; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-109; Husseini Shīrāzī, Al-Fiqh, al-Qānūn, pp. 263-281; ‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-133 and 151-314</ref>.

==Legitimacy of legislation==
[[Legislation]], or the enactment of laws<ref>Dihkhudā, the Persian dictionary</ref>, is a governmental act in which the government or the competent authorities of a country establish rules and regulations to regulate social relations and their relations with the people, and everyone is obliged to follow them<ref>Dabīrnīyā and Naqavī, Mabānī-yi Qānūnguḏārī dar Maktab-i Lībirālīsm va Maḏhab-i Imāmīyyih, p. 60</ref>. Legislation in the field the rules of [[Sharia]] is named as Tashrī‘ (تشریع), which is only done by God, and the rules are conveyed to people by prophets, Imams and their deputies<ref>Subḥānī, Ilāhīyyat ‘Alā Hudā al-Kitāb va al-Sunnah va al-‘Aql, vol. 2, p. 81; Ḥā’irī et al., Mafhūm-i Qānūnguḏārī dar Ārā’-i Fiqhī va Ḥuqūqī-yi Siyyid Muhammad Bāqir al-Ṣadr, pp. 40-41</ref>.

===Ambiguity about the concept of law===
According to [[Davud Feirahi|Dāvūd Fayarḥī]], in [[Shia]] traditional and jurisprudential literature, the concept of law had a theological foundation and there was an identical relationship between the law and the [[Sharia]]. He believed that this understanding of law was common among the thinkers of the pre-Constitutional era<ref>Fayarḥī, Mafhūm-i Qānūn dar Irān-i Mu‘āṣir, pp. 47-50</ref>; however, with the change of the concept of law in the years leading to the Constitutional movement, under the influence of modern ideas and, following that, the formation of law-making institutions in Iran, [[jurists]] presented different evaluations for this concept<ref>Ibid, p. 307</ref>.
The need for law to administer the government and the society was agreed upon by thinkers and [[jurists]], and even those who were against the establishment of legislative institutions considered the existence of law as an essential need of human societies<ref>Unknown, Taḏkirat al-Ghāfil, vol. 1, pp. 56-57</ref>. The jurists’ difference of opinion was mostly due to their different attitudes about challenges such as: What is the nature of this law? By whom should it be compiled? And in what scope should it be approved? Such questions caused confusion about the concept of law among [[jurists]], and answering them based on the theoretical foundations that each [[jurist]] believed in led to the adoption of conflicting [[Fatwa|fatwas]] about the [[legitimacy]] of the legislative process.

===Opponents of legislation===
When some [[jurists]] equated the term “Tashrī‘” in the field of [[Sharia]] with the term “law”<ref>Murādkhānī, Khānish-i Ḥuqūqī az Inqilāb-i Mashrūṭi-yi iran, p. 175</ref>, Muslims’ [[Constitution]] came to be considered as the very [[divine comprehensive law]] that provides for all the basic needs of man<ref>Tabrīzī, Kashf al-Murād, p. 131; Vara‘ī, Majmū‘i-yi Asnād va Madārik-i Tadvīn-i Qānūn-i Asāsī, vol. 5, pp. 384-391, 719</ref>. They considered the constitution approved by the [[parliament]] to stand parallel to the [[Qur'an]] and believed that with its approval, [[heresy]] will find its way into religion<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 57-58</ref>. According to them, government instructions to meet daily needs do not take the title of law<ref>Ibid, Majmū‘i-yi Asnād va Madārik-i Tadvīn-i Qānūn-i Asāsī, vol. 5, p. 384</ref>. [[Mohammad Hossein Tabrizi|Jurists such as Mohammad Hossein Tabrīzī]] and [[Fazlullah Nuri|Faḍlullāh Nūrī]] believed that in order to meet the essential needs of the society and of the executive affairs of the government, the government or the ruler should formulate guidelines or regulations and name them with titles such as “social etiquette” or “duties of the government,” not “law”<ref>Ibid</ref>. According to them, this has nothing to do with [[legislation]]<ref>Unknown, Taḏkirat al-Ghāfil, vol. 1, p. 58</ref>.

===Proponents of legislation===
Some [[jurists]] adopt a different approach to the concept of law. They talk of a different type of law, beside the [[divine comprehensive law]], that relates to matters not mentioned in textual contents and permissible matters that the [[Mukallaf]] people have been made responsible about making laws for<ref>Maḥallātī, Rasālah al-Li’ālī al-Marbūṭah fī Vujūb al-Mashrūṭah, p. 539; Najafī Isfahanī, Mukālimāt-i Muqīm va Musāfir, p. 429</ref>. Even people like [[Muhammad Husayn Tabatabai|Muhammad Hussein Ṭabāṭabā’ī]] believed that religion should not issue instructions in these areas (of variable rulings), and that with the change of the society, the law also changes<ref>Ṭabāṭabā’ī, Barrisīhā-yi Islāmī, vol. 1, p. 176</ref>. Also, [[Mirza Naini|Muhammad Hussein Nā’īnī]] and [[Mohammad Baqir al-Sadr|Muhammad Bāqir al-Ṣadr]] consider the establishment of legislative institutions to be necessary to maintain general interests<ref>Nā’īnī, Tanbīh al-Umma, pp. 47-49</ref>. Moreover, some [[contemporary jurists]], such as [[Mohammad Momen|Mohammad Mu’min]] and [[Mohammad-Taqi Mesbah-Yazdi|Mohammad Taqī Miṣbāḥ Yazdī]], believe that administration of the [[Islamic community]] requires the establishment of necessary institutions under the supervision of the [[Wali al-Faqih|guardian]]<ref>Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūnguḏārī, pp. 80-81</ref>.
According to [[jurists]] such as Rūḥullāh Najafī Iṣfahānī, Mīrzā Faḍl Ali Āqā (a [[jurist]] during the [[Persian Constitutional Era]]) and [[Naser Makarem Shirazi|Makārim Shīrāzī]] (a [[contemporary jurist]]), this type of [[legislation]] applies general rulings to specific cases<ref>Makārim Shīrāzī, Anvār al-UṢūl, vol. 3, p. 253; Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, pp. 335-337</ref> and monitors the processes of implementation of the [[Sharia]]<ref>Najafī Isfahanī, Mukālimāt-i Muqīm va Musāfir, p. 427; Mu’min, Qavānīn-i Thābit va Mutighayyir, p. 60, 73-74</ref>.

==Lawmaking authority==
[[Shia jurists]]’ approach toward law-making institutions depends on their view about the concept of law. Some [[jurists]] believe that, according to the rule of “ما من واقعة الا و لله فیها حکم”, [[legislation]] in all matters is exclusive to God<ref>Zargarīnijād, Rasā’il Mashrūṭīyat, p. 166</ref>. This group of [[jurists]], such as [[Mohammad Hossein Tabrizi|Muhammad Hussein Tabrīzī]] and [[Fazlullah Nuri|Faḍlullāh Nūrī]], believe that to provide the necessary needs of the society and of the executive affairs of the government, the government or the ruler should formulate guidelines or regulations and name them with titles such as “social etiquette” or “the duty of the government,” not “law”<ref>Vara‘ī, Majmū‘i-yi Asnād va Madārik-i Tadvīn-i Qānūn-i Asāsī, vol. 5, p. 384</ref>.
On the other hand, the [[jurists]] who played a major role in the victory of the [[Islamic Revolution of Iran]], such as [[Imam Khomeini]] and [[Hossein-Ali Montazeri|Hussein-Ali Muntaẓirī]], despite believing in the exclusiveness of the right to legislate to God, accepted legislative institutions, such as the [[parliament]], as planning and counselling entities<ref>Khumeini, Vilāyat-i Faqīh, p. 44; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59; Subḥānī, Al-Taqnīn fī Ḥukūmat al-Islāmīyyah, pp. 238-258</ref>. Along with these [[jurists]], there are [[jurists]] such as [[Mirza Naini|Mīrzā Nā’īnī]] and [[Mohammad Baqir al-Sadr|Mohammad Bāqir al-Ṣadr]] who consider the establishment of law-making institutions to be necessary to maintain general interests<ref>Nā’īnī, Tanbīh al-Umma, pp. 47-49</ref>. They further believe that the [[Sharia]] has entrusted the responsibility of decision-making in a wide range of permissible matters and in determining secondary rulings to man and public consultation. Depending on the conditions of time and place, and the variety of interests, these decisions and rulings will change<ref>Ibid, p. 134; Najafī Isfahanī, Mukālimāt-i Muqīm va Musāfir, p. 429; Ṣadr, Al-Islām Yaqūd al-Ḥayāt, p. 12; ‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-122</ref>. Among the [[contemporary jurists]], as well, those such as [[Mohammad Momen|Mohammad Mu’min]] and [[Mohammad-Taqi Mesbah-Yazdi|Mohammad Taqī Miṣbāḥ Yazdī]] believe that the administration of the [[Islamic society]] requires the establishment of necessary institutions under the supervision of the [[Wali al-Faqih|guardian]]<ref>Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūnguḏārī, pp. 80-81</ref>.

==Legislative areas==
In [[Shia jurisprudential]] and legal texts, the [[legitimacy]] of [[legislation]] has been discussed in the two areas of “[[customary lawmaking|customary and public matters]] (not mentioned in textual contents)” and “jurisprudential rulings (mentioned in textual contents).” Based on their attitude towards the concept of law, [[Shia jurists]] have investigated the [[legitimacy]] or illegitimacy of [[legislation]] in these two areas.

===Legislation in the area of customary and public matters===
{{main|Customary legislation}}
[[Jurists]] differ on the [[legitimacy]] of [[legislation]] in the area of customary matters, about which there is no specific statement in religious texts and which are also called “منطقة الفراغ” (manṭaqat al-Firāgh). Some [[jurists]] considered [[legislation]] and the formation of legislative bodies to be against the [[Sharia]], particularly during the [[Iranian Constitutional Era]], such as [[Mohammad Hossein Tabrizi|Mohammad Hossein Tabrīzī]], [[Fazlullah Nuri|Sheikh Faḍlullāh Nūrī]], and Abūlḥassan Najafī Marandī, and in the later period, such as [[Sayyid Mohammad Hossein Hosseini Tehrani|Sayyid Mohammad Hossein Hosseini Tehrani]].
This group of [[jurists]] have cited various reasons for this; for example that new legislations and particularly a [[Constitution]] are not required by Muslims because of the existence of a [[divine comprehensive law]]<ref>Tabrīzī, Kashf al-Murād, p. 131; Vara‘ī, Majmū‘i-yi Asnād va Madārik-i Tadvīn-i Qānūn-i Asāsī, vol. 5, pp. 384-391, 719</ref>, that [[legislation]] is incompatible with [[Prophethood]] and finality of the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]]<ref>Unknown, Taḏkirat al-Ghāfil, vol. 1, p. 57</ref>, that non-Muslims may find domination over Muslims by forming the [[parliament]]<ref>Najafī Marandī, Dalā’il Barāhīn al-Furqān, p. 223</ref>, that parliament members’ interference in public matters is not legitimate<ref>Husseini Tehrani, Vilāyat-i Faqīh dar Ḥukūmat-i Islāmī, vol. 3, pp. 172-173; Nūrī, Ḥurmat-i Mashrūṭih, vol. 1, pp. 103-104</ref> and also that the [[majority vote]] is a false belief<ref>Nūrī, Ḥurmat-i Mashrūṭih, vol. 1, pp. 106-107</ref>.
On the other hand, [[jurists]] such as [[Mirza Naini|Mīrzā Nā’īnī]] and [[Mohammad Baqir al-Sadr|Mohammad Bāqir al-Ṣadr]] divide the affairs of the [[Mukallaf]] people into the two areas of matters mentioned in textual contents and matters not mentioned in them<ref>Fayarḥī, Āstāni-yi Tajaddud, pp. 439-441</ref> and acknowledge the existence of [[divine comprehensive law|comprehensive divine laws]] in the area of matters mentioned in the texts. They believe that in a wide range of permissible matters and in the explanation of secondary rulings about which there is no text, the responsibility of decision-making has been left to man<ref>‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-122</ref>. According to them, there is a need for [[legislation]] in the area of [[customary lawmaking|customary and public matters]]<ref>Maḥallātī, Rasālah al-Li’ālī al-Marbūṭah fī Vujūb al-Mashrūṭah, p. 539</ref> and also in the area of rulings that are controversial among [[jurists]]<ref>Ṣadr, Al-Islām Yaqūd al-Ḥayāt, pp. 10-11</ref>. They consider the codification of laws to be a rational way that is approved by the Lawmaker and is obligatory as the prelude to obligations<ref>Nā’īnī, Tanbīh al-Umma, pp. 45-48, 87-88, 108</ref>. For this reason, they consider it necessary to have some kind of legislative institution in the society.
The [[jurists]] who were influential in the victory of the [[Islamic Revolution of Iran]], such as [[Imam Khomeini]] and [[Hossein-Ali Montazeri|Hussein-Ali Muntaẓirī]], believed that [[legislation]] in Islam consisted of the three stages of [[legislation]], recognition and planning<ref>Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 60-61; Amīnīpajūh and Ka‘bī, Dar Justujū-yi Naẓarīyyi-yi Qānūnguḏārī dar Āthār-i Barkhī az Faqīhān-i Mu‘āṣir-i Imāmīyyi, p. 61</ref>. In their opinion, the right to legislate is exclusive to God, and after the announcement of the laws by the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]], recognizing the divine rules and extracting them from the resources of religion is done by the [[Imams (AS)]] and through the [[ijtihad]] of the [[jurists]]<ref>Khomeini, Ṣaḥīfi-yi Imam, vol. 15, p. 312</ref>. According to them, in the [[Islamic government]], the [[parliament]] does not have the right to legislate. Rather, its special duty is to recognize the issue<ref>Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59; Subḥānī, Al-Taqnīn fī Ḥukūmat al-Islāmīyyah, pp. 238-258</ref>, provide consultation and make a plan on how to implement the [[Sharia]], and adapt new events with religious standards<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 100; Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 31</ref>.

===Turning jurisprudential rules into law===
{{main|Converting jurisprudential rules into law}}
Turning jurisprudential rules or the [[Sharia]] into law is considered as one of the necessities of governance in contemporary [[Islamic societies]]<ref>Abulḥasanī and Fattāḥī, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, p. 31</ref>. In this process, jurisprudential rules turn into law, for which governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, pp. 36 & 38; Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 185 & 191; Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, p. 345; ibid, vol. 2, p. 84</ref>. [[Shia]] and [[Sunni]] scholars are more inclined to permit turning jurisprudential rules into law with certain conditions, and in some cases they even consider it necessary in the current era<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 188-189 & 191</ref>. Conversely, some [[jurists]] believe that it is not permissible to turn jurisprudential rules into law; because, according to them the laws of Islam are clear and enforceable and there is no need to re-legislate them<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute</ref>.
Converting jurisprudential rules into binding laws based on the theory of permissibility has certain conditions and requirements, the non-observance of which undermines the effectiveness of [[jurisprudence]] for the administration of society<ref>Ibid</ref>. Among these conditions are the adoption of [[Fatwa|fatwas]] in accordance with the principle of [[justice]], paying attention to [[Fatwa|fatwas]] that create efficient laws<ref>‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī va Mavāni‘ va Rāhkārhā-yi Ān, p. 734</ref>, explicitness of the words of the law that is derived from [[jurisprudence]]<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67</ref>, giving authenticity to the law against the [[Fatwa|fatwa]]<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43</ref>, and avoiding uncommon statements and [[Fatwa|fatwas]]<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, pp. 103-105</ref>. Jurisprudence researchers have also listed obstacles for this type of [[legislation]], which include lack of a governmental perspective on [[jurisprudence]]<ref>Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 92-93; Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 105</ref>, differences between [[Fatwa|fatwas]] and the plurality of authorities<ref>Samāvātī and Mūsavī Bujnūrdī, Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī …, pp. 43-58; Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 95-101</ref>, and the uncertainty of the [[standard fatwa]]<ref>Karīmī, Pajūhishī dar Ḥukm-i Fiqhī-yi Taba‘īyyat az Qānūn-i Ḥukūmatī, p. 99</ref>.

==The relationship between law and Sharia==
{{main|The relationship between law and Sharia}}
Researchers of religion have depicted the relationship between law and [[Sharia]] in various ways. Sometimes, the approved law is totally compatible with the [[Sharia]] and, sometimes, it is completely against it. There are also times when it neither agrees, nor disagrees with it, whether it is enacted by a lawful government or by an unlawful one<ref>Fāḍil Lankarānī, Nisbat-i Fiqh va Qānūn, meftahe-keramat website</ref>. In this regard, [[jurists]] are faced with questions such as: Who is responsible for matching the approved law with religious standards? And, if we considered the law to be valid, in cases where there is a conflict between the law and [[jurisprudence]], what are the solutions to resolve the conflict?<ref>Persian Constitutional Amendment of 1907, the Islamic Parliament Research Center</ref>
After the [[Iranian Constitutional Revolution]] in Iran, in order to solve this problem, the second principle of the constitutional amendment, called the [[first-rank law]], was added to the [[constitutional law]]. According to this principle, five [[jurists]] must confirm the compatibility of laws approved by the [[parliament]] with the regulations and standards of the [[Sharia]]<ref>Qādirī et al., Sāzukārhāyi Naẓarī-yi Burūnraft az Chālish-i Mīyān-i Sharī‘at va Qānūn dar Andīshi-yi Sīāsī-yi Imam Khomeini, pp. 29-31</ref>. With the victory of the [[Iranian Islamic Revolution]], the incompatibility between [[Sharia]] and the law, which had been a problem for [[jurists]] since the Constitutional era, became visible again. Solutions to overcome this problem were presented by the drafters of the [[Constitution]]<ref>Vilāyatī, Kāvushī Pīrāmūn-i Mabānī-yi Fiqhī-yi Shūrāyi Nigahbān dar Niẓām-i Muqaddas-i Jumhūrī-yi Islāmī-yi Iran, p. 171</ref>. The formation of the [[Guardian Council]] to adapt the laws of the [[parliament]] to the standards of [[Sharia]] through ways such as referring to the [[standard fatwa]]<ref>Hāshimī, Sākhtār va Vaẓāyif-i Majma‘-i Tashkhīṣ-i Maṣlaḥat-i Niẓām, hawzah.net; Malik Afḍalī Ardakānī, Mukhtaṣar-i Ḥuqūq-i Asāsī va Āshnāyī bā Qānūn-i Asāsī, p. 252</ref>, the establishment of the [[Expediency Discernment Council]] to resolve the disputes between the [[Islamic Consultative Assembly]] (the [[Iranian Parliament]]) and the [[Guardian Council]] and solving problems that cannot be solved by normal means<ref>Ibid, Ḥukm-i Ḥukūmatī dar Qānūn-i Asāsī va Jāygāh-i ān dar Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, p. 51</ref>, as well as the establishment of the [[governmental ruling|governmental ruling]] institution<ref>Ibid</ref> were among these solutions.

==Important study resources==
{{main|Legislation (study resources)}}
In [[contemporary jurisprudence]] books, sections are dedicated to the issue of [[legislation]] in the [[Islamic government]]. One of the first works documenting legislative processes based on religious teachings is the book [[Tanbih al-Ummah wa Tanzih al-Millah|Tanbīh al-Umma va Tanzīh al-Millah]] by [[Mohammad Hossein Gharavi Naini|Mohammad Hossein Gharavī Na’īnī]]. Also, in the second volume of the book [[Dirasat fi Wilayat al-Faqih wa Fiqh al-Dawlah al-Islamiyyah|Dirāsāt fī Vilāyat al-Faqīh va Fiqh al-Daulah al-Islāmīyyah]] written by [[Hossein-Ali Montazeri|Hossein-Ali Muntazirī]], this issue is discussed within the examination of the duties of the legislative power. On the other hand, works have been written to reject law and [[legislation]] in Islam, among which we can refer to the treatises written by the opponents of the [[Iranian Constitutional Movement]], such as Risāli-yi Ḥurmat-i Mashrūṭih, Tazkirat al-Ghāfil, Kashf al-Murād, etc. There are also books and articles that have been written independently about the validity and position of [[legislation]] in [[contemporary Shia jurisprudence]]. The books Ta’ammulāt-i Fiqhī dar Ḥuzi-yi Qānūnguḏārī and Fiqh va Qānūn; ’Īdihā, Pīshnahādhā va Rahiḥalhā-yi Ravishī, the collected text of scientific meetings of the [[Islamic Research Center of the Islamic Consultative Assembly]], are examples of these books.

==Footnotes==
{{Footnotes}}
<references />

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* Qādirī, Nafīsih Sādāt, and Gulshanī, Ali Riḍā, and Himmat, Mas‘ūd, file:///C:/Users/alireza/Downloads/Islamic%20Te-v18n64p29-fa.pdf, “Sāzukārhāyi Naẓarī-yi Burūnraft az Chālish-i Mīyān-i Sharī‘at va Qānūn dar Andīshi-yi Sīāsī-yi Imam Khomeini,” Muṭāli‘āt-i Inqilāb-i Islāmī, No. 64, 2022
* Qurbān-nīyā, Nāṣir, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute, 2015
* Ghamāmī, Sayyid Muhammad Mahdi, and Mīrluḥī, Sayyid Muhammad, and Javādīyyih, Ali, Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, Dīn va Qānūn quarterly, No. 19, 2021
* Kātūzīyān, Muhammad Ali, Tārīkh-i Inqilāb-i Mashrūṭīyat-i Iran, Tehran, Shirkat-i Sahāmī-yi Intishār, 2001
* Kadīvar, Mohsen, Sīāsatnāmi-yi Khurāsānī, Tehran, Kavīr, 2009
* Kirmānī, Nāẓimul-Islām, Tārīkh-i Bīdārī-yi Iranīān, Tehran, Āgāh, 1979
* Mu’min, Muhammad, Ikhtīyār-i Valī-yi Amr dar Qānūnguḏārī, Fiqh-i Ahl-i Bayt journal, No. 55, no date
* Mu’min, Muhammad, Qavānīn-i Thābit va Mutighayyir, Fiqh-i Ahl-i Bayt journal, No. 56, no date
* Maḥallātī, Muhammad Ismā‘īl, Rasālah al-Li’ālī al-Marbūṭah fī Vujūb al-Mashrūṭah, in Rasā’il Mashrūṭīyyat collected by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Murādkhānī, Fardīn, Khānish-i Ḥuqūqī az Inqilāb-i Mashrūṭi-yi iran, Tehran, Mīzān, 2018
* Persian Constitutional Amendment of 1907, the Islamic Parliament Research Center
* Malik Afḍalī Ardakānī, Mohsen, Mukhtaṣar-i Ḥuqūq-i Asāsī va Āshnāyī bā Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Qom, Daftar-i Nashr-i Ma‘ārif, first edition, 2013
* Malik Afḍalī Ardakānī, Mohsen, Ḥukm-i Ḥukūmatī dar Qānūn-i Asāsī va Jāygāh-i ān dar Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Ḥukūmat-i Islāmī quarterly, No. 62, 2012
* Makārim Shīrāzī, Nāṣir, Anvār al-UṢūl, Qom, Madrasat al-Imam Ali ibn abī Ṭālib, 2007
* Muntaẓirī, Hussein Ali, Dirāsāt fī Vilāyat al-Faqīh va Fiqh al-Daulat al-Islāmīyyah, Qom, Tafakkur, 1988
* Muṭāli‘āt va Pajūhishhāyi Sīāsī institute, Murūrī bar Shiklgīrī-yi Qānūn Asāsī dar Jumhūrī-yi Islāmī-yi Iran/ Hami Pursī bi Munāsibat-i Taṣvīb dar Ābān 58, written on https://pchi.ir/, visited on 25th October 2022
* Nā’īnī, Muhammad Hussein, Tanbīh al-Umma va Tanzīh al-Millah, Qom, Būstān-i Kitāb, 2003
* Unknown, Taḏkirat al-Ghāfil va Irshād al-Jāhil, in Maktūbāt, I‘lāmīyyihā va Rūznāmi-yi Sheikh-i Shahīd Faḍlullāh Nūrī collected by Muhammad Turkamān, Tehran, Khadamāt-i Farhangī-yi Rasā, 1985
* Najafī Iṣfahānī, Āqā Rūḥullāh, Mukālimāt-i Muqīm va Musāfir, in Rasā’il Mashrūṭīyyat collected by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Najafī Marandī, Abulḥasan, Dalā’il Barāhīn al-Furqān fī Buṭlān-i Qavānīn-i Navāsikh-i Muḥkamāt al-Qur’ān, in Rasā’il Mashrūṭīyyat collected by Ghulām Hussein Zargarīnijād, Tehran, Kavīr, 1996
* Nūrī, Faḍlullāh, Ḥurmat-i Mashrūṭih, in Maktūbāt, I‘lāmīyyihā va Rūznāmi-yi Sheikh-i Shahīd Faḍlullāh Nūrī collected by Muhammad Turkamān, Tehran, Khadamāt-i Farhangī-yi Rasā, 1985
* Nūrī, Faḍlullāh, Lavāyiḥ, by Humā Riḍvānī, Tehran, Payām-i Tārīkhī-yi Iran, 1983
* Humāyūn Kātūzīyān, Muhammad Ali, Dūlat va Jāmi‘i dar Iran, Inqirāḍ-i Qājār va Istiqrār-i Pahlavī, Tehran, Markaz, 2000
* Hāshimī, Sayyid Muhammad, Sākhtār va Vaẓāyif-i Majma‘-i Tashkhīṣ-i Maṣlaḥat-i Niẓām, hawzah.net, uploaded on 24th July 2006, visited on 12th June 2021
* Vara‘ī, Sayyid Javād, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, Dīn va Qānūn quarterly, No. 17, 2017
* Vilāyatī, Mohsen, Kāvushī Pīrāmūn-i Mabānī-yi Fiqhī-yi Shūrāyi Nigahbān dar Niẓām-i Muqaddas-i Jumhūrī-yi Islāmī-yi Iran, Fiqh va Tārīkh-i Tamaddun quarterly, No. 26, 2011

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[[Category:Contemporary Jurisprudence Articles]]

The Contemporary Jurisprudence Encyclopedia

2026-10-02T19:50:08Z

Enadmin:

'''The Encyclopedia of Contemporary Jurisprudence''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%AF%D8%A7%D9%86%D8%B4%D9%86%D8%A7%D9%85%D9%87_%D9%81%D9%82%D9%087_%D9%85%D8%B9%D8%A7%D8%B5%D8%B1 دانشنامه فقه معاصر]) is an online resource dedicated to topics related to [[Contemporary jurisprudence|contemporary jurisprudence]]. It is designed to collect, report, and evaluate scholarly advancements in the field. In addition to pages for study materials, the encyclopedia provides separate sections for various issues, perspectives, theories, foundational concepts, rationale, and notable figures in contemporary jurisprudence.

As a knowledge management system, The Encyclopedia of Contemporary Jurisprudence began its operations in 2019 and is published by the Research Institute of Contemporary Jurisprudence. As of February 2023, over 330 pages of content have been developed within this encyclopedia.
==About the Encyclopedia==
The Encyclopedia of Contemporary Jurisprudence is an online resource that provides entri
es on topics related to contemporary jurisprudence or newly emerging issues. The articles within this encyclopedia are developed under the supervision of an editorial board and are evaluated by scholars and researchers in the field of Islamic jurisprudence from both religious seminaries and universities.

The primary aim of this encyclopedia is to compile and make accessible research that has previously been conducted in the domain of contemporary jurisprudence. The articles serve as a report on existing jurisprudential interpretations and research, rather than engaging in original investigations of contemporary jurisprudential issues. Consequently, this encyclopedia presents concepts, topics, issues, foundational concepts, sources, arguments, and figures associated with contemporary jurisprudence.
===What is contemporary jurisprudence?===
Contemporary jurisprudence refers to a branch of Islamic law that addresses issues and topics that have emerged over the past two centuries or have existed prior but have gained increased attention in the modern era. Consequently, the Encyclopedia of Contemporary Jurisprudence not only addresses new and emerging subjects but also revisits traditional legal topics that have gained prominence in modern discourse, leading to new debates and critiques.
==Entries of the Contemporary Jurisprudence Encyclopedia==
The Encyclopedia of Contemporary Jurisprudence presents a collection of concepts related to contemporary jurisprudence, organized into several general categories and structured as encyclopedia entries. These topics include issues, opinions and theories, foundational concepts, rationale, notable figures, and a list of references.
===Topics and issues within contemporary jurisprudence===
The entries introducing the topics on contemporary jurisprudence serve as the most important articles in the encyclopedia. They first provide a definition of the title, then outline the related issues, and, finally, present various opinions and rulings related to them, along with the reasoning behind such rulings. Examples of such articles include those that discuss [[Standard legal rulings|standard legal rulings]] and [[Sculpturing|sculpturing]].
===Opinions and theories===
The Encyclopedia of Contemporary Jurisprudence introduces and reports innovations and new theoretical contributions to Islamic jurisprudence. Each theory is detailed in an article that presents the theorist, the fundamental principles of the theory, and the associated arguments and critiques. Among these are The [[Legal Addresses Theory]] in the field of Usul al-Fiqh, and the [[Theory of precedence of ethics over jurisprudence|theory of precedence of ethics over jurisprudence]] in the foundations of modern jurisprudence.
===Personalities and theorists===
Over the past two centuries, various intellectuals from both religious seminaries and universities in Islamic nations have contemplated contemporary jurisprudence, resulting in a wealth of scholarly works. The Contemporary Jurisprudence Encyclopedia seeks to allocate part of its articles to highlight the academic contributions, foundational theories, viewpoints, and writings of these scholars, featuring prominent individuals like [[Mohammad Hossein Naeini]], [[Imam Khomeini]], and [[Mohammad Ibrahim Janati Shahrudi]].
===Foundations of Contemporary Jurisprudence===
A number of entries in the encyclopedia of contemporary jurisprudence focus on presenting the theoretical foundations of the contemporary jurisprudence. Given that contemporary jurisprudence arises from confronting new issues and sometimes revisiting earlier jurisprudential thoughts, some commonly accepted principles in legal interpretations, which have been prevalent among jurists, have faced challenges and critiques. Therefore, the introduction and reevaluation of these foundations hold significant importance. Some entries related to the foundations of contemporary jurisprudence in the current encyclopedia include the area of [[Legal uncertainty|legal uncertainty]] and [[The philosophy of Islamic jurisprudence|the philosophy of Islamic jurisprudence]].
===Introducing new books and journal publications===
Some articles in the Contemporary Jurisprudence Encyclopedia provide either a brief or detailed overview, and at times a critical analysis, of books and journals published in the field of contemporary jurisprudence. The nature of these introductions—whether brief, detailed, or critical—depends on the significance, content, and relevance of the respective book or journal. Among these articles are: [[The examination of the jurisprudential aspects of civil obedience and disobedience|the examination of the jurisprudential aspects of civil obedience and disobedience]], "[[Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah]]," "[[Wasail al-Injab al-Sina'iyah]]," and the "[[Quarterly Journal of Jurisprudence]]".
===proofs===
Some jurisprudential proofs, including verses of the Quran, hadiths, and legal rules, are frequently used in contemporary Islamic jurisprudence. One of the objectives of the Encyclopedia of Contemporary Jurisprudence is to introduce some of these proofs and the commonly used methods in the reasoning of jurists. These articles aim to report on the scope of application of these reasons in modern jurisprudence, the methods of reasoning employed, the theoretical foundations, and critiques related to these evidences. Among these reasons are the "negation of domination” rule, the [[Accepted narration of Umar ibn Hanzalah|accepted narration of Umar ibn Hanzalah]], and the [[Verse prohibiting alteration of God's creation|verse prohibiting alteration of God's creation]].
===list of research sources===
part of the entries in the Encyclopedia of Contemporary Jurisprudence focus on the introduction and systematic listing of study sources concerning contemporary jurisprudence. In these sections, efforts have been made to gather a collection of books, articles, theses, and other pertinent resources related to a particular topic: [[All pages of study sources|all pages of study sources]].
==Tree diagram for topics on the contemporary jurisprudence==
Developing a tree diagram and a subject index for new issues in Islamic Jurisprudence is a responsibility of the Contemporary Jurisprudence Encyclopedia. The organization of contemporary jurisprudential issues and the classification of resources generated in this field are collectively referred to as "classification." This classification process is time-consuming and requires thoughtful reflection and intellectual discussions. The main titles of these categories are available in 28 entries within the classification section.
==Performance report==
As of mid-February 2023, over 330 pages have been created in this encyclopedia, with approximately 290 pages dedicated to the introduction of research resources. Additionally, around 40 articles have been written on current issues, foundational concepts, personalities, and detailed introductions of books.
[[ar:موسوعة الفقه المعاصر]]
[[fa:دانشنامه فقه معاصر]]

Institute of Contemporary Jurisprudence Studies

2026-10-02T19:45:47Z

Enadmin:

* abstract
Institute of Contemporary Jurisprudence Studies serves as a research centre dedicated to the study of contemporary Islamic jurisprudence. It aims to produce and manage content in the field of jurisprudence, providing scholarly responses to the questions faced by both the global community and Iran regarding new jurisprudential issues.
Institute of Contemporary Jurisprudence Studies was established in 2020 by Seyyed Kazem Nur Mofidi, a cleric and expert in Islamic Jurisprudence and the Friday prayer leader of Gorgan, in Qom and operates under a board of trustees. It comprises three research centres and two specialized scholarly groups, along with a Center for the Encyclopedia of Contemporary Jurisprudence, and a library for contemporary jurisprudence.
==Goals and missions of the research Institute==
The Research Institute of Contemporary Jurisprudence was founded by Seyyed Kazem Nur mofidi, a cleric and expert in Islamic Jurisprudence and the Friday prayer leader of Gorgan. Established in 2020 in Qom, the institute aims to generate and manage content in the field of contemporary jurisprudence while providing scholarly responses to the questions faced by the global community and Iran regarding new issues.
===Objectives===
The objectives of the research institute are as follows:
* To create a foundation for the expansion and enrichment of jurisprudential knowledge.
* To address fundamental needs facing modern humanity and the contemporary world within the realm of jurisprudence and its related fields.
* To enhance and reinforce the scholarly authority of religious seminaries in the generation and distribution of high-quality jurisprudential research.
* To enhance the effectiveness of jurisprudence in actively responding to the emerging needs, challenges, and questions facing contemporary humanity, particularly within the Islamic community and the resultant government.
* To facilitate the training of human resources specialized in the Islamic jurisprudence and the related fields.
* To conduct a comparative study of Shia and Sunni research on Islamic Jurisprudence aimed at producing high-quality and effective content.
* To conduct a comparative study of jurisprudential and legal studies to foster the creation of valuable and efficient content.
* To identify potential researchers and use them in jurisprudential studies.
===Missions===
* To provide jurisprudential and reasoned responses to the questions facing humanity today, utilizing the Framework of Jawaheri Jurisprudence.
*To establish an active media stream through various written publications and virtual platforms to promote high-quality jurisprudential outputs concerning emerging issues focusing on Jawaheri Jurisprudence approach.
* To develop educational programs and related textbooks in the field of modern jurisprudence for instruction in seminaries and universities.
* To train talented people in the field of jurisprudence and the related disciplines.
==Institute's Organizational Structure==
The Institute of Contemporary Jurisprudence Studies operates under the supervision of a Board of Trustees, headed by its President, and the Supreme scholarly Council.
===Presidency & Board Members===
Seyyed Mojtaba Nur Mofidi serves as President while board members include Seyyed Kazem Nur Mofidi, Seyyed Mojtaba Nur Mofidi, Seyyed Hashem Hosseini Bushehri, Mohammad Javad Fazel Lankarani, Abolqasem Alidoust, Ahmad Moballeghi.
===The Supreme scholarly Council===
The Supreme Scholarly Council of the Research Institute is composed of the President, the Vice President for Research, and the heads of the research centers, along with six researchers from either religious or academic backgrounds, appointed by the President of the Institute. The Vice President for Research serves as the secretary of this council.
The members include: Seyyed Mojtaba Nur Mofidi, Abolghasem Alidoust, Javad Fazel, Ahmad Moballeghi, Ahmad Vaezi, Mohammad Andalib Hamadani, Masih Boroujerdi, Mojtaba Elahi Khorasani, and Mostafa Dorri.
Responsibilities assigned include:
* Establishing research priorities for the institute, research centers, and scientific groups;
* Reviewing and approving programs proposed by research centers and specialized groups;
* Recommending the establishment, expansion, and dissolution of research centers and groups to the institute's president;
* Approving regulations and guidelines for research and educational activities of research centers and groups in accordance with the broader approved policies and strategies.
==The scholarly and research structure of the Institute==
The Institute of Contemporary Jurisprudence Studies consists of three research institutes and two specialized research groups. Alongside these institutes, there are two centers that focus on the virtual encyclopedia of contemporary jurisprudence and the library dedicated to contemporary jurisprudence.
===Research Centers & Specialized Groups===
The research institute will consist of three research centers and two specialized scientific groups:
* Research Center for Social Jurisprudence, Culture, and Health;
* Research Center for Jurisprudence in Politics and Governance;
* Research Center for Jurisprudence in Economics, Resources, and Technology;
* Specialized Group on Contemporary Jurisprudential Foundations;
* Specialized Group on Jurisprudence of Worship
===The Center for the Encyclopedia of Contemporary Jurisprudence===
This center is a division of the Contemporary Jurisprudence Research Institute, tasked with the development of a virtual encyclopedia focused on contemporary jurisprudential concepts. This encyclopedia was launched in February 2021 and is managed under the supervision of an editorial board.
===The Library of Contemporary Jurisprudence===
The Library of Contemporary Jurisprudence is a division of the Research Institute for Contemporary Jurisprudence Studies. It features both a physical and a digital library. The physical library contains a collection of printed books and resources, which researchers can access within the institute's facilities. Meanwhile, the digital library aims at assembling all published resources concerning contemporary jurisprudence in electronic format. This library includes an array of materials such as books, theses, scholarly articles, lecture notes, presentations, interviews, and other relevant resources associated with contemporary jurisprudence, all made available to visitors.
[[fa: پژوهشگاه مطالعات فقه معاصر]]
[[ar:معهد دراسات الفقه المعاصر]]

Euthanasia

2026-10-02T19:24:30Z

Enadmin:

{{Author
|author = Hamzeh Ahmadi
|compiler =
}}

* '''Abstract'''

'''Euthanasia''' (in persian: [[:fa:اتانازی|اتانازی]]) means ending a person's life at their request or without it, by another person, with the intention of relieving them from unbearable pain and suffering or an incurable illness. This act may be performed using a lethal substance or by withdrawing essential care. Euthanasia is either performed by the patient, which jurists consider suicide, or it is performed by a physician or another person, which is divided into active and passive types.

In active euthanasia, a physician or another person commits the act of killing a patient who is suffering from an illness with no hope of recovery. According to contemporary jurists, active euthanasia is forbidden (haram), and its performance establishes the right of retribution (qisas) or blood money (diyah) for the deceased's heirs. Passive euthanasia, meaning withholding treatment from an incurable patient, is also forbidden; however, there is a difference of opinion among jurists regarding the necessity of retribution or payment of blood money.

According to jurists, the patient's consent to the act of euthanasia does not lift its prohibition. However, there is a difference of opinion on whether retribution or blood money follows if the patient gives permission for euthanasia.

==Explanation of the Issue and Its Position==
"Euthanasia" means ending a person's life with the intention of relieving them from unbearable pain and suffering or an incurable illness. This act may be performed by the person themselves or at their request by another. It is also possible that another person, out of compassion and pity, decides to kill the patient, or withholds necessary and essential care until the person passes away.<ref>Khosravi, *Baz'andishi-ye Qatl-e Tarahhom-Amiz...*, p. 20.</ref> Euthanasia, with its various pronunciations, has Greek roots<ref>Biggs, Euthanasia: Death with Dignity and the Law, 2001, p. 12</ref> and has been translated into Persian as "good death," "easy death," "euthanasia," and "mercy killing."<ref>Khosravi, *Baz'andishi-ye Qatl-e Tarahhom-Amiz...*, p. 17.</ref>

===Types of Euthanasia===
From the perspective of its method, euthanasia is divided into two categories:
*'''Direct Euthanasia:''' This is performed by the action of someone other than the patient—such as a physician.<ref>Sadeghi, "A Jurisprudential and Legal Study of Euthanasia," p. 103.</ref> This itself is divided into two types, active direct and passive direct, each of which can be either at the explicit request of the patient or involuntary and without the patient's request due to their incompetence to make decisions due to factors like being in a coma or unconscious:<ref>Parsapour et al., "Euthanasia, Explanation and Ethical Analysis," p. 3.</ref>
# '''Active Direct Euthanasia:''' A person, such as a physician, ends the patient's painful life with a lethal injection or drug.<ref>Qasemi, *Danshnamah-i Fiqh-i Pizishki*, 2016, vol. 3, p. 323.</ref>
# '''Passive Direct Euthanasia:''' Treatment is withheld from continuing to keep an incurable patient who is in pain alive; that is, refraining from treatments that are necessary and essential to preserve the patient's life.<ref>Qasemi, *Danshnamah-i Fiqh-i Pizishki*, 2016, vol. 3, p. 323.</ref>
*'''Indirect Euthanasia:''' Lethal drugs are made available to an incurable patient to end their own life,<ref>Qasemi, *Danshnamah-i Fiqh-i Pizishki*, 2016, vol. 3, p. 323.</ref> or drugs are prescribed that have death as a consequence.<ref>Parsapour et al., "Euthanasia, Explanation and Ethical Analysis," p. 3.</ref>

The jurisprudential discussion of euthanasia is separate from the topic of [[Brain Death]] patients. Thus, a jurist might permit disconnecting life support from a brain-dead patient or a patient in a coma with no hope of recovery, but the same jurist would consider passive euthanasia—withholding treatment out of compassion—to be forbidden (haram).<ref>For example, see Makarem Shirazi, Naser, *Istifta'at-i Jadid*, vol. 1, pp. 479-480; Khoei & Tabrizi, *Ahkam-i Jami'-i Masa'il-i Pizishki*, p. 280; Khoei, *Fiqh al-A'dhar al-Shar'iyya wa al-Masa'il al-Tibbiyya*, p. 198.</ref>

===History and Position===
It is said that the term euthanasia was first introduced into medical culture by the 16th-century English philosopher Francis Bacon, in an essay titled "The Advancement of Learning," where he discussed a painless death.<ref>Vecchio and others, "Brief history of Euthanasia and the contribution of medical and surgical ethics to the cultural debate," p. 185.</ref> In the first half of the 20th century, Thomas More, an English lawyer and philosopher, in his book "Utopia," deemed this act legitimate for terminally ill patients suffering greatly, conditional on the permission of judges and priests.<ref>Vecchio and others, "Brief history of Euthanasia and the contribution of medical and surgical ethics to the cultural debate," p. 185.</ref> Since then, and especially after World War II, discussions and writings on this topic have intensified, and today it is one of the most important and controversial issues in the field of medical ethics and law.<ref>Afzali and Marzbandi, "Euthanasia in the History of Medicine," p. 67.</ref>

Although related topics have been addressed in past jurisprudential works in the chapters on retribution (qisas) and blood money (diyah), and within issues such as "the prohibition of killing a soul"<ref>Muhaqqiq al-Hilli, *Shara'i' al-Islam*, vol. 4, p. 180.</ref> and "the impermissibility of killing someone who consents to it,"<ref>Muhaqqiq al-Hilli, *Shara'i' al-Islam*, vol. 4, p. 185.</ref> and the issue of ijhaz which is discussed in the chapter on jihad,<ref>A group of authors, *Farhang-e Fiqh-e Farsi*, vol. 1, p. 284.</ref> there has been no discussion on the rulings of euthanasia. This issue is an emergent one in the field of medical jurisprudence, which has now attracted the attention of contemporary jurists, who have addressed it in response to various inquiries.<ref>Al-'Ammari and Ben Hami, *Al-Qatl al-Rahim: Dirasa Muqarana bayn al-Shari'a al-Islamiyya wa al-Qanun al-Wad'i*, p. 9.</ref>

==Prescriptive Ruling and Its Reasons==

===Shia Jurists' View===
The views of Shia jurists on the prescriptive ruling of euthanasia vary based on its classification as active, passive, and indirect. However, in all cases, according to the jurists, the patient's permission and consent to perform euthanasia does not change the prescriptive ruling, i.e., the ruling of prohibition:<ref>Fazel Lankarani, *Ahkam-i Bimaran va Pizishkan*, p. 152; Makarem Shirazi, *Istifta'at-i Jadid*, vol. 1, p. 479.</ref>

*'''Ruling on Active Euthanasia:''' Most contemporary Shia jurists agree on the prohibition of active euthanasia (mercy killing by a physician's action).<ref>Montazeri, *Ahkam-i Pizishki*, p. 122; Fazel Lankarani, *Ahkam-i Bimaran va Pizishkan*, p. 152; Makarem Shirazi, *Istifta'at-i Jadid*, vol. 1, p. 479; Makarem Shirazi, *Ahkam-i Pizishki*, p. 116; Khoei and Tabrizi, *Ahkam-i Jami'-i Masa'il-i Pizishki*, pp. 280-281; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 100; Alavi Gorgani, *Istifta'at-i Pizishki*, p. 40; Qasemi, *Danshnamah-i Fiqh-i Pizishki*, vol. 3, p. 305.</ref>
*'''Ruling on Passive Euthanasia:''' Many jurists have considered passive euthanasia (withholding or ceasing treatment for an incurable patient who is suffering from their illness) to be forbidden (haram).<ref>Safi Golpayegani, *Istifta'at-i Pizishki*, p. 100; Makarem Shirazi, *Istifta'at-i Jadid*, vol. 1, p. 479; Montazeri, *Ahkam-i Pizishki*, p. 122.</ref> [[Mirza Jawad Tabrizi]] has not considered continuing treatment in this condition to be obligatory.<ref>Khoei and Tabrizi, *Ahkam-i Jami'-i Masa'il-i Pizishki*, p. 281.</ref> Some jurists have permitted withholding treatment under specific conditions; among them, [[Naser Makarem Shirazi]], in response to an inquiry about a person who has been in a coma for 12 years or a patient who has not regained consciousness for a long time after surgery, has said: If the patient's return to a normal state is customarily impossible, it is permissible to cease treatment.<ref>["Ending the life of patients who have been unconscious for years,"](https://makarem.ir/main.aspx?lid=0&typeinfo=21&catid=46873) Information website of the office of Grand Ayatollah Makarem Shirazi.</ref> [[Sayyid Ali Khamenei]] and [[Sayyid Abulqasim Khoei]] have not considered it obligatory to preserve a dying patient for whom there is no hope of recovery, and therefore, in their view, withholding treatment from this patient is not forbidden.<ref>["Rulings on Euthanasia (Mercy Killing),"](https://www.leader.ir/fa/book/64/احکام-پزشکی) Information website of the office of the Supreme Leader; Khoei, *Fiqh al-A'dhar al-Shar'iyya wa al-Masa'il al-Tibbiyya*, p. 198.</ref> It can be said that the permissibility of withholding treatment by physicians in the answers given to these inquiries may be because in all these cases the patient had an unstable life, and if the patient has a stable life, withholding treatment is not permissible.
*'''Ruling on Indirect Euthanasia:''' According to jurists such as [[Hossein-Ali Montazeri]] and [[Mohammad Fazel Lankarani]], hastening the death of a patient, if performed by the patient themselves, is considered suicide and is forbidden.<ref>Montazeri, *Ahkam-i Pizishki*, p. 123; Qasemi, *Danshnamah-i Fiqh-i Pizishki*, vol. 3, p. 303.</ref>

===Evidence===
The evidence that Shia jurists have used to prove the prohibition of euthanasia is as follows:

'''Direct Euthanasia (Active and Passive)'''

For the prohibition of active euthanasia, jurists have resorted to the general applicability of the evidence for the prohibition of killing a soul from the verses and narrations, and the evidence for the obligation to save a respected soul from destruction. This evidence is also cited for the prohibition of passive euthanasia:<ref>Makarem Shirazi, *Istifta'at-i Jadid*, vol. 1, p. 479; Mortazavi, *Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, p. 92.</ref>
* Verses 151 of Surah al-An'am, 33 of Surah al-Isra, and 93 of Surah al-Nisa have forbidden intentional and unjust killing, and this prohibition indicates impermissibility.<ref>Najafi, *Jawahir al-Kalam*, vol. 42, pp. 8-9.</ref> Mercy killing (euthanasia) is also an instance of intentional killing, therefore it is forbidden.<ref>Mortazavi, *Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, p. 52; Qasemi, *Danshnamah-i Fiqh-i Pizishki*, vol. 3, p. 306.</ref>
* In the book Wasa'il al-Shi'a, there is a chapter titled "The Prohibition of Killing Unjustly," under which 20 narrations are mentioned.<ref>Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, p. 9.</ref> Jurists have argued from these narrations for the prohibition of killing a soul,<ref>Najafi, *Jawahir al-Kalam*, vol. 42, pp. 9-10.</ref> and since euthanasia is considered unjust killing, it has been declared forbidden.<ref>Makarem Shirazi, *Istifta'at-i Jadid*, vol. 1, p. 479.</ref>

'''Indirect Euthanasia'''

For the prohibition of indirect euthanasia, the evidence for the prohibition of suicide in the verses and narrations and the obligation to preserve life have been used:<ref>Mortazavi, *Qatl-e Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, p. 47.</ref>
*From the perspective of jurists, the "verse of destruction"<ref>Quran 2:195.</ref> and the verse "And do not kill yourselves. Indeed, Allah is ever Merciful to you"<ref>Quran 4:29.</ref> as well as some narrations<ref>Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 19, p. 379.</ref> indicate the prohibition of suicide and self-annihilation.<ref>Muhaqqiq Ardibili, *Zubdat al-Bayan*, p. 428; Tabataba'i, *Al-Mizan fi Tafsir al-Qur'an*, vol. 4, p. 320; Makarem Shirazi, *Tafsir-e Nemuneh*, vol. 3, p. 356; Mortazavi, *Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, pp. 47, 53.</ref> Based on this, indirect euthanasia, which a terminally ill patient undertakes to escape pain and suffering, is considered suicide and is forbidden.<ref>Qasemi, *Danshnamah-i Fiqh-i Pizishki*, vol. 3, p. 306.</ref>
*The evidence that indicates the prohibition of suicide also, by implication, indicates the obligation to preserve life.<ref>Soltani and Karachiyan Thani, "Jurisprudential and Legal Proof of the Rule of the Necessity of Preserving Life," p. 96.</ref> Furthermore, according to some jurists, the obligation to preserve life is one of the [[rational independents (*mustaqillat 'aqliyya*)|rational independents (mustaqillat 'aqliyya)]] that reason alone can rule as necessary, and consequently, it leads to the discovery of the command of God Almighty.<ref>[https://www.irna.ir/news/83715766/فاضل-لنکرانی-حفظ-جان-از-اهم-واجبات-است Fazel Lankarani, "Preserving life is one of the most important obligations," Islamic Republic News Agency.]</ref>

===Sunni Jurists' View===
The views of Sunni jurists also differ according to the various types of euthanasia:

*'''Active Euthanasia:''' All Sunni scholars have ruled on the prohibition of killing to escape the pain of illness, as well as active euthanasia and causing the patient's death to be hastened.<ref>Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 536; Mortazavi, *Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, p. 118.</ref> According to the fatwa of the "Al-Azhar Fatwa Committee" in Egypt, killing a sick person, regardless of the illness, is not permissible and is considered an act of aggression. It is also forbidden for the patient to kill themselves, and the patient's permission does not make the forbidden act permissible; because they do not have ownership over their own soul to give permission to others to kill them.<ref>Al-'Ammari, Ben Hami, *Al-Qatl al-Rahim: Dirasa Muqarana bayn al-Shari'a al-Islamiyya wa al-Qanun al-Wad'i*, p. 58.</ref>

*'''Passive Euthanasia:''' Passive euthanasia or withholding treatment and ceasing medical care due to hopelessness of recovery is either on the part of the patient or the physician, and there is a difference of opinion among jurists on both cases.<ref>Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 540.</ref> Some Hanafi, Shafi'i, Hanbali, and Zahiri jurists consider treatment and medication to be obligatory.<ref>Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 541.</ref> Some Maliki jurists have called medication absolutely permissible (mubah).<ref>Ibn 'Abd al-Barr, *Al-Kafi fi Fiqh Ahl al-Madina*, vol. 2, p. 1142.</ref> And some Hanafi, Maliki, and Shafi'i jurists have considered medication and treatment to be recommended (mustahabb).<ref>Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 541.</ref> According to some Hanbali jurists, treatment is not obligatory, and refraining from it out of reliance on God is preferable.<ref>Al-Hajjawi, *Al-Iqna' fi Fiqh al-Imam Ahmad ibn Hanbal*, vol. 1, p. 210; Buhuti, *Kashf al-Qina' 'an Matn al-Iqna'*, vol. 2, p. 76.</ref>

===Evidence===
The evidence that Sunni jurists have used for the prohibition of euthanasia is as follows:

'''Quran'''

Some of the verses based on which Sunni jurists have issued a fatwa on the prohibition of euthanasia include:
*Verses such as 151 of Surah al-An'am, 33 of Surah al-Isra, and 93 of Surah al-Nisa, which indicate the prohibition of killing a soul out of aggression and unjustly.<ref>Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 533.</ref>
*Verses 195 of Surah al-Baqarah and 29 of Surah al-Nisa, which indicate the prohibition of suicide and self-annihilation.<ref>Al-'Ammari and Ben Hami, *Al-Qatl al-Rahim: Dirasa Muqarana bayn al-Shari'a al-Islamiyya wa al-Qanun al-Wad'i*, p. 55.</ref>

'''Prophetic Tradition'''

Some of the narrations based on which the prohibition of euthanasia has been argued are:
*Narrations from the Prophet (s) that forbid unjustly killing a respected soul as well as [[suicide]].<ref>Bukhari, *Sahih al-Bukhari*, vol. 4, p. 72; Muslim, *Sahih Muslim*, vol. 1, p. 103; Zubbar, Abd al-Awi, *Al-Qatl al-Rahim bayn al-Tahrim wa al-Ibaha*, p. 78.</ref>
* Narrations in which wishing for death due to illness or suffering is forbidden.<ref>Muslim, *Sahih Muslim*, vol. 4, p. 2064; Zubbar, Abd al-Awi, *Al-Qatl al-Rahim bayn al-Tahrim wa al-Ibaha*, p. 79; Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," p. 534.</ref>

'''Practice of the Companions'''

It has been said that some of the companions were severely wounded in some battles due to injuries, but they endured the pain until the last moments of their lives, and it never crossed their minds to commit suicide to escape this pain and suffering or to give permission to others to kill them.<ref>Zubbar, Abd al-Awi, *Al-Qatl al-Rahim bayn al-Tahrim wa al-Ibaha*, p. 80.</ref>

==Declarative Ruling and Its Reasons==
===Shia Jurists' View===
The declarative ruling in euthanasia is the liability for retribution (qisas) or blood money (diyah) that may be incumbent upon the perpetrator. Jurists have differing opinions on this matter:
====Indirect Euthanasia====
Regarding the declarative ruling of euthanasia, considering the patient's permission and consent to its performance or their lack thereof, there is a difference of opinion among jurists. One of the issues that has been discussed in Shia jurisprudence in the past and can be used in this context now is that if someone tells another, "Kill me, or I will kill you," can he kill him? And if he kills him, is retribution or blood money established for him?<ref>Ansari, "Mercy Killing," p. 133.</ref> There are two views on this issue:
# '''Forfeiture of the Right to Retribution and Blood Money:''' According to jurists such as Muhaqqiq al-Hilli, Shahid al-Thani, the author of Jawahir, Sayyid Abd al-A'la Sabzevari, and [[Sayyid Ruhollah Musavi Khomeini]], since the victim consented to his own murder, he has forfeited the right to retribution and blood money.<ref>Muhaqqiq al-Hilli, *Shara'i' al-Islam*, vol. 4, p. 185; Najafi, *Jawahir al-Kalam*, vol. 42, p. 54; Shahid al-Thani, *Masalik al-Afham*, vol. 15, p. 89; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 28, p. 199; Khomeini, *Tahrir al-Wasilah*, vol. 2, p. 489.</ref>
# '''Non-forfeiture of the Right to Retribution and Blood Money:''' According to jurists such as Sayyid Abulqasim Khoei, Mirza Jawad Tabrizi, and [[Ja'far Sobhani]], even with the victim's consent and permission for his own murder, the right to retribution and blood money is not forfeited.<ref>Khoei, *Mabani Takmilat al-Minhaj*, vol. 42, p. 18; Tabrizi, *Tanqih Mabani al-Ahkam*, pp. 47-48; Sobhani, *Ahkam al-Qisas fi al-Shari'ah al-Islamiyyah al-Gharra'*, p. 93.</ref> Because, unlike what applies to property, a person does not have authority over their own destruction, so their permission for their own destruction does not cause the forfeiture of liability. Therefore, the general applicability of the evidence for retribution includes this case as well.<ref>Khoei, *Mabani Takmilat al-Minhaj*, vol. 42, p. 18; Tabrizi, *Tanqih Mabani al-Ahkam*, pp. 47-48; Sobhani, *Ahkam al-Qisas fi al-Shari'ah al-Islamiyyah al-Gharra'*, p. 93.</ref> [[Sayyid Mohammad Sadiq Rouhani]], in criticizing this view, has said that a person is the owner of their own life, limbs, and actions, and therefore, with permission and consent to their own destruction and murder, the right to retribution and blood money is forfeited.<ref>Rouhani, *Fiqh al-Sadiq*, vol. 26, p. 34.</ref>

====Passive Euthanasia====
Examining the declarative ruling of passive euthanasia or withholding treatment from a patient suffering from their illness depends on which of the titles "prohibition of killing a soul" or "obligation to save a respected soul" applies to it.<ref>Ansari Qomi, "Mercy Killing," p. 138.</ref> According to [[Mohammad Reza Ansari Qomi]], from a customary perspective, the issue falls under the title "obligation to save a respected soul"; because the act of killing has not been committed by him, but rather he has simply not saved the patient from death.<ref>Ansari Qomi, "Mercy Killing," p. 138.</ref> And according to Allamah al-Hilli and the author of Jawahir, whoever sees a person in a state of peril and does not save them—while being able to save them—although the person has committed a sin, they are not liable (for retribution or blood money).<ref>Allamah al-Hilli, *Tahrir al-Ahkam*, vol. 5, p. 551; Najafi, *Jawahir al-Kalam*, vol. 43, p. 153.</ref> Based on this, if a physician does not treat a patient and they die as a result of withholding treatment, although the physician has committed a sin, they are not liable, and the deceased's heirs do not have the right to retribution or blood money.<ref>Ansari Qomi, "Mercy Killing," p. 141.</ref>

====Active Euthanasia====
If a physician or another person intentionally kills an incurable patient who is suffering from their illness, without their permission, even with the intention of compassion and pity, it has all the elements of intentional murder, and they have committed intentional murder. This case is covered by the general applicability of the establishment of the right to retribution or blood money for the victim's guardian.<ref>Safi Golpayegani, *Istifta'at-i Pizishki*, p. 100; Ansari Qomi, "Mercy Killing," p. 138.</ref>

===Sunni Jurists' View===
It is said that most Sunni jurists have considered killing a patient out of compassion to be an instance of intentional murder, for which retribution is established.<ref>Abu Zahra, *Al-Jarimah wa al-'Uqubah fi al-Fiqh*, p. 389.</ref> Of course, some jurists are of the opinion that the patient's permission forfeits retribution—but not blood money—because there is an element of doubt (shubha), and doubt forfeits retribution.<ref>Abu Zahra, *Al-Jarimah wa al-'Uqubah fi al-Fiqh*, p. 389.</ref> According to others, the patient's permission not only forfeits retribution but also blood money; because the murdered patient, by their permission, has waived their right to their own blood.<ref>Abu Zahra, *Al-Jarimah wa al-'Uqubah fi al-Fiqh*, p. 389.</ref>

==Study Resources==
{{Main|Euthanasia (Study Resources)}}
Some of the study resources on euthanasia in Shia and Sunni jurisprudence include:
*The book "Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh" (Mercy Killing (Euthanasia) in the Mirror of Jurisprudence), by Sayyed Mohsen Mortazavi: After conceptualizing the term euthanasia, stating its types and history, it examines its jurisprudential ruling in Shia and Sunni jurisprudence. The book has been published in 143 pages by the Imam Khomeini Institute.
*The book "Baz'andishi-ye Qatl-e Tarahhom-Amiz (Utanazi) dar Fiqh-e Islami va Huquq-e Mozu'eh" (Rethinking Mercy Killing (Euthanasia) in Islamic Jurisprudence and Positive Law), by Kazem Khosravi: It first examines the concept of euthanasia and provides a history of the discussion, then examines the legal and jurisprudential foundations of euthanasia. The book has been published in 116 pages by Razavi University of Islamic Sciences.
*The book "Al-Qatl al-Rahim: Dirasa Muqarana bayn al-Shari'a al-Islamiyya wa al-Qanun al-Wad'i" (Mercy Killing: A Comparative Study between Islamic Sharia and Positive Law), based on a thesis, written by Kulthum al-'Ammari and Sa'ida Ben Hami. After a general overview of the definition of euthanasia, its types, and history, the book examines the jurisprudential ruling of the issue from the perspective of Sunni jurisprudence and compares it with the laws of Algeria.

==Footnotes==
{{footnotes}}

==References==
{{References}}
*Ibn 'Abd al-Barr, Abu 'Umar, *Al-Kafi fi Fiqh Ahl al-Madina*, Riyadh: Maktabat al-Riyadh al-Haditha, 2nd ed., 1400 AH.
*Abu Zahra, Muhammad, *Al-Jarimah wa al-'Uqubah fi al-Fiqh*, Cairo: Dar al-Fikr al-'Arabi, 1997 CE.
*Afzali, Mohammad Ali; Marzbandi, Rahmatollah, "Utanazi dar Tarikh-e Pizishki dar Gharb va Jahan-e Islam," *Din va Salamat*, no. 1, September 2014.
*Ansari, Mohammad Reza, "Qatl az ruy-i Tarahhom," *Majalla-ye Fiqh-e Ahl al-Bayt (AS)*, no. 43, Autumn 2005.
*["Ahkam-e Utanazi (Qatl az ruy-i Tarahhom),"](https://www.leader.ir/fa/book/64/احکام-پزشکی) Information website of the office of the Supreme Leader, accessed: 22 October 2022.
*Bukhari, Muhammad ibn Isma'il, *Sahih al-Bukhari*, Damascus: Dar Tawq al-Naja, 1422 AH.
*Buhuti, Mansur ibn Yunus, *Kashf al-Qina' 'an Matn al-Iqna'*, Beirut: Dar al-Kutub al-'Ilmiyya, n.d.
*Parsapour, Alireza, et al., "Utanazi, Tabyin va Tahlil-e Akhlaqi," *Majalla-ye Akhlaq va Tarikh-e Pizishki*, no. 4, 2008.
*["Payan dadan be Zendegi-ye Bimarani ke Salha Bihush Hastand,"](https://makarem.ir/main.aspx?lid=0&typeinfo=21&catid=46873) Information website of the office of Grand Ayatollah Makarem Shirazi, accessed: 22 October 2022.
*Tabrizi, Mirza Jawad, *Tanqih Mabani al-Ahkam (Qisas Sharayi' al-Islam)*, Qom: Dar al-Siddiqa al-Shahida, 3rd ed., 1429 AH.
*A group of authors, *Farhang-e Fiqh-e Farsi*, Qom: Da'irat al-Ma'arif al-Fiqh al-Islami, 2008.
*Al-Hajjawi, Musa ibn Ahmad, *Al-Iqna' fi Fiqh al-Imam Ahmad ibn Hanbal*, Beirut: Dar al-Ma'rifa, n.d.
*Hurr al-'Amili, Muhammad ibn al-Hasan, *Wasa'il al-Shi'a*, Qom: Mu'assasat Al al-Bayt, 1416 AH.
*Khosravi, Kazem, *Baz'andishi-ye Qatl-e Tarahhom-Amiz (Utanazi) dar Fiqh-e Islami va Huquq-e Mozu'eh*, Mashhad: Razavi University of Islamic Sciences, 2018.
*Khoei, Sayyid Abulqasim; Tabrizi, Mirza Jawad, *Ahkam-i Jami'-i Masa'il-i Pizishki*, Qom: Dar al-Siddiqa al-Shahida, 1st ed., 1432 AH.
*Khoei, Sayyid Abulqasim, *Fiqh al-A'dhar al-Shar'iyya wa al-Masa'il al-Tibbiyya*, Qom: Dar al-Siddiqa al-Shahida, 1422 AH.
*Khoei, Sayyid Abulqasim, *Mabani Takmilat al-Minhaj*, Qom: Mu'assasat Ihya' Athar al-Imam al-Khu'i, n.d.
*Khomeini, Sayyid Ruhollah, *Tahrir al-Wasilah*, Tehran: Markaz-e Tanzim va Nashr-e Athar-e Imam Khomeini, 1434 AH.
*Rouhani, Sayyid Mohammad Sadiq, *Fiqh al-Sadiq*, Qom: Intisharat al-Ijtihad, n.d.
*Zubbar, Fatima al-Zahra; al-Awi, Jawad Abd, *Al-Qatl al-Rahim bayn al-Tahrim wa al-Ibaha*, Algeria: Jami'at Abd al-Husayn ibn Badis, 2013 CE.
*Sobhani, Ja'far, *Ahkam al-Qisas fi al-Shari'ah al-Islamiyyah al-Gharra'*, Qom: Mu'assasa-ye Imam Sadiq (AS), n.d.
*Sabzevari, Sayyid Abd al-A'la, *Muhadhdhab al-Ahkam*, Qom: Dar al-Tafsir, n.d.
*Soltani, Abbas-Ali; Karachiyan Thani, Fatima, "Isbat-e Fiqhi va Huquqi-ye Qa'ida-ye Luzum-e Hifz-e Nafs," *Pazhuheshha-ye Fiqhi*, no. 3, Autumn 2013.
*Shahid al-Thani, Zayn al-Din ibn 'Ali, *Masalik al-Afham*, Qom: Mu'assasat al-Ma'arif al-Islamiyya, 1413 AH.
*Safi Golpayegani, Lotfollah, *Istifta'at-i Pizishki*, Qom: Daftar-e Tanzim va Nashr-e Athar-e Ayatullah Safi Golpayegani, 2016.
*Tabataba'i, Sayyid Muhammad Husayn, *Al-Mizan fi Tafsir al-Qur'an*, Beirut: Mu'assasat al-A'lami li-l-Matbu'at, 1973.
*Abd al-Hamid Isma'il, "Al-Qatl al-Rahim wa Mawqif Shari'at al-Islamiyya Minhu: Dirasa Fiqhiyya Muqarana," *Hawliyyat Kulliyyat al-Dirasat al-Islamiyya wa al-'Arabiyya Banat bi-l-Zaqaziq*, no. 10, 2020.
*Allamah al-Hilli, Hasan ibn Yusuf, *Tahrir al-Ahkam*, Qom: Mu'assasa-ye Imam Sadiq (AS), 1420 AH.
*Alavi Gorgani, Sayyid Mohammad Ali, *Istifta'at-i Pizishki*, Qom: Faqih-e Ahl al-Bayt (AS), 2017.
*Al-'Ammari, Kulthum; Ben Hami, Sa'ida, *Al-Qatl al-Rahim: Dirasa Muqarana bayn al-Shari'a al-Islamiyya wa al-Qanun al-Wad'i*, Algeria: Wizarat al-Ta'lim al-'Ali wa al-Bahth al-'Ilmi, 2012.
*Fazel Lankarani, Mohammad Javad, ["Hifz-e Jan az Ahamm-e Wajibat Ast,"](https://www.irna.ir/news/83715766/فاضل-لنکرانی-حفظ-جان-از-اهم-واجبات-است) Islamic Republic News Agency, published: 16 March 2020, accessed: 22 October 2022.
*Fazel Lankarani, Mohammad, *Ahkam-i Bimaran va Pizishkan*, Qom: Markaz-e Fiqhi-ye A'imma-ye Athar (AS), 1st ed., 1427 AH.
*Qasemi, Mohammad Ali, *Danshnamah-i Fiqh-i Pizishki*, Qom: Markaz-e Fiqhi-ye A'imma-ye Athar (AS), 2016.
*Muhaqqiq al-Hilli, Ja'far ibn al-Hasan, *Shara'i' al-Islam*, Qom: Mu'assasa-ye Isma'iliyan, 2nd ed., 1408 AH.
*Muhaqqiq Ardibili, Ahmad ibn Muhammad, *Zubdat al-Bayan fi Ahkam al-Qur'an*, Tehran: Al-Maktabah al-Murtadawiyyah li-Ihya' al-Athar al-Ja'fariyyah, 1st ed., n.d.
*Mortazavi, Sayyed Mohsen, *Qatl az ruy-i Tarahhom (Utanazi) dar Ayineh-ye Fiqh*, Qom: Imam Khomeini Institute, 2016.
*Muslim, ibn al-Hajjaj, *Sahih Muslim*, Beirut: Dar Ihya' al-Turath al-'Arabi, n.d.
*Makarem Shirazi, Naser, *Istifta'at-i Jadid*, Qom: Madrasa Imam Ali ibn Abi Talib (AS), 2nd ed., 1427 AH.
*Makarem Shirazi, Naser, *Ahkam-i Pizishki*, Qom: Madrasa Imam Ali ibn Abi Talib (AS), 1429 AH.
*Makarem Shirazi, Naser, *Tafsir-e Nemuneh*, Qom: Dar al-Kutub al-Islamiyyah, 2001.
*Montazeri, Hossein-Ali, *Ahkam-i Pizishki*, Tehran: Nashr-e Sayeh, 2002.
*Najafi, Muhammad Hasan, *Jawahir al-Kalam*, Beirut: Dar Ihya' al-Turath al-'Arabi, 7th ed., 1983.
*Biggs, Hazel, *Euthanasia: Death with Dignity and the Law*, University of Kent at Canterbury, Hart Publishing, 2001.
*Vecchio, Ignazio, et al., "Brief history of Euthanasia and the contribution of medical and surgical ethics to the cultural debate," *Acta Medica Mediterranea*, no. 28, 2012.

[[fa:اتانازی]]
[[ar:القتل الرحيم]]
[[Category:Contemporary Jurisprudence Articles]]
[[Category:Articles by Hamzeh Ahmadi]]

Standard fatwa

2026-10-02T19:12:04Z

Enadmin:

{{Author
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* '''abstract'''
'''The standard fatwa''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%81%D8%AA%D9%88%D8%A7%DB%8C_%D9%85%D8%B9%DB%8C%D8%A7%D8%B1 فتوای معیار]) is one of the issues of countries that adhere to Islamic laws, based on which it should be clarified which [[jurist]]'s [[fatwa]] the country's laws are based on. This issue is the result of the variety of fatwas and jurisprudential schools. Disagreement between jurists is the basis of the question as to which fatwa is the criterion that determines the compatibility of the law with the [[Sharia]]? There are about eight ways and possibilities among the [[Shia jurists]] to determine the standard fatwa: the fatwa of a collective council of jurists, the fatwa of the [[guardian]], the fatwa of the [[most knowledgeable jurist]], the efficient fatwa, the fatwa of each of the jurists, the easiest fatwa, or the fatwa according to caution might be the standard fatwa. Among the [[Ahl al-Sunnah]], regardless of those who believe [[legislation]] to be forbidden, there are three opinions: consultative legislation, legislation based on one of the fatwas, and legislation based on [[ijtihad]] or extraction of laws from the [[Sharia]].

==Explanation and definition of the standard fatwa==
Islamic countries that decide to make laws and rule based on [[Islamic jurisprudence]] are bound to adapt the laws and regulations of the society to [[Islamic jurisprudence]] and [[Sharia]], at least to the extent that these laws do not oppose them. In this path, there is no way except to refer to the opinion of jurists as experts who know the [[Sharia]], and the law must be compatible with the [[fatwa]] of jurists. Since the jurists differ in many fatwas, it is necessary to first find a criterion for choosing a fatwa so that the law and its implementation can be measured based on that fatwa. From here, the discussion about the standard fatwa arises as to whose or which fatwa should be set as the standard in [[legislation]]. Therefore, the standard fatwa is the one that forms the center around which legislation takes place and the laws of Islamic countries are measured by that.

==Review of literature==
There are traces of the discussion about the standard fatwa in Ḥuqūq-i Madanī, authored by [[Sayyid Hasan Imami]] (1929). In his work, he mentions that the civil law was compiled according to famous theories<ref>Imāmī, Ḥuqūq-i Madanī, vol. 1, p. 5</ref>. A serious discussion about the standard fatwa in [[legislation]], however, started in 1985. The then representative of Tabriz raised this question before the Speaker of the Parliament: What is the criterion for determining whether the resolutions of the Parliament are not inconsistent with the rulings of [[Sharia]]? The consensus of [[Shia jurists]], the consensus of Muslims, the famous fatwa or the opinion of and [[ijtihad]] by the [[Guardian Council]]? The Speaker of the Parliament transferred the question to the [[Guardian Council]]. In response, the Guardian Council wrote: Determining the contradiction or compliance of laws with Islamic standards is based on the opinion of the jurists of the Guardian Council, issued in a [[fatwa]]<ref>Fatḥī and Kūhī Iṣfahānī, Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran Hamrāh bā Naẓarāt-i Tafsīrī-yi Shūrā-yi Nigahbān (1981-2018), p. 168</ref>. This question was the beginning of discussions about the standard fatwa. Particularly within the 1390s SH (2012-2021), there were serious discussions, articles were written and views and theories were raised about it. The articles and writings that have so far been written in this regard are as follows:

==Some written works==
{{main|Standard fatwa (study resources)}}
Some books that address [[legislation]] in Islamic societies in general, such as Bāyastihāyi Taqnīn (2006) by Ahmad Ḥājī Dihābādī or Sharī‘at va Taqnīn dar Kishvarhāyī Islāmī (2018) by Sayyid Ibrahim Husseinī, also refer to the standard fatwa. Also, a PH.D. dissertation titled Jāygāh-i Fatwa dar Niẓām-i Qānūnguḏārī-yi Islāmī (2020) was written and defended by ‘Abdullah Ḥeydarī. In addition, many articles have been published on this topic:
* Fatwāyi Mi‘yār dar Qānūnguḏārī, Hasan‘ali ‘Aliakbarīyān, Dīn va Qānūn journal, first year, 2014 winter
* Fatwāyi Mi‘yār dar Qānūnguḏārī dar Niẓām-i Ḥuqūqī-yi Jumhūrī-yi Islāmī-yi Iran, Hādī Ḥāj Zādih, Muṭāli‘āt-i Islāmī-yi Fiqh va Uṣūl journal, No. 102, 2015 autumn
* Imkān Sanjī-yi Fiqhī-yi Qānūnguḏārī bar Mabnāyi Fatwā-yi Mashhūr, Mas‘ūd Jahāndūst Dilinjān, Pajouhishnāmi-yi Fiqhī, No. 7, 2015 autumn and 2016 winter
* Fatwāyi Mi‘yār dar Qānūnguḏārī, Muhammad Javād Arasṭā, Fiqh-i Ḥukūmatī journal, No. 7, 2019 spring and summer
* Fatwāyi Mi‘yār dar Qānūnguḏārī; Inṭibāq bā Maṣāliḥ-i Ilzāmī, Mohsen Jahāngīrī and Muhammad Ali Banāyī Kheyrābādī, Āmūzih-hāyi Fiqh-i Madanī journal, round 13, No. 23, 2021 spring and summer
* Fiqh-i Jāmi‘i Miḥvar; bistar-i Bāzshināsī-yi Fatwāyi Mi‘yār dar Qānūnguḏārī, Mahdi Rajā’ī and Muhammad Javād Arasṭā, Ḥukūmat-i Islāmī quarterly, No. 100, 2021 summer

==Diversity of opinions in the discussion on standard fatwa==
There are eight ideas and possibilities among [[Shia jurists]] in the discussion on determining the standard fatwa. Not all these possibilities have been mentioned by jurists about choosing the standard fatwa in [[legislation]]; rather, some of them are possibilities that have been raised in other discussions. However, based on the statements of the past jurists, they can be examined as possibilities in the discussion on the standard jurisprudence. These ideas are: the fatwa of a collective council of jurists, the fatwa of the [[guardian]], the fatwa of the [[most knowledgeable jurist]], the efficient fatwa, the fatwa of each of the jurists, the easiest fatwa, and the fatwa according to caution as the standard. Among the [[Ahl al-Sunnah]], regardless of those who believe [[legislation]] to be forbidden, there are three opinions: consultative legislation, legislation based on one of the fatwas, and legislation based on [[ijtihad]] or extraction of laws from the [[Sharia]].

===The fatwa of a collective council of jurists===
One viewpoint about the standard fatwa is that, in [[legislation]], the standard of assessment is the [[fatwa]] of a collective council of jurists. Clearly, the requirement of a consultative fatwa is to act according to the idea of the majority of the jurists, because consensus on all issues is impossible. In Iran, with the first-rate law during the constitutional era and the establishment of the [[Guardian Council]] in the Islamic Republic, the responsibility of evaluating the conformity of the enactments and laws passed by the parliament with the rules of [[Sharia]] has been given to a council of jurists.
At the time of the enactment of the Constitution, as stipulated by [[Sayyid Mohammad Hosseini Beheshti|Sayyid Mohammad Hosseini Bihishtī]], the vice president of the Assembly for the Final Review of the Constitution, and later, as stipulated by [[Lutfullah Safi Golpaygani|Lutfullāh Ṣāfī]], the then secretary of the [[Guardian Council]], the fatwa of the Guardian Council was the standard<ref>Persian Constitution of 1906, principle 2; Ṣūrat-i Mashrūḥ-i Muẓākirāt-i Majlis-i Barrisī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 2, p. 963, session on 1st October 1979; Fatḥī and Kūhī Iṣfahānī, Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran Hamrāh bā Naẓarāt-i Tafsīrī-yi Shūrā-yi Nigahbān (1981-2018), p. 168</ref>. This opinion was accepted by [[Imam Khomeini]], the then leader of the Islamic Republic of Iran.
There is a point of view similar to this one among the [[Ahl al-Sunna]], about the disagreement about religious rules or social affairs, that is called [[collective ijtihad]]. In case of a disagreement, the arbitration panel or the Supreme Court will arbitrate the matter and the opinion of the majority will be acted on<ref>Al-Zuḥaylī, Al-Fiqh al-Islāmī va Adillatih, vol. 8, p. 6135</ref>.

====Proof====
The [[Guardian Council]] has presented no arguments for this viewpoint in its ideas. However, we can argue as such:
According to [[hadiths]] such as the [[Maqbulah of 'Umar ibn Hanzalah|Maqbūlah]] (hadith accepted by jurists as authentic without approving its document) narrated by ‘Umar ibn Ḥanẓalah from [[Imam Sadiq (AS)]] in which his holiness said, “يَنْظُرَانِ‏ إِلى‏ مَنْ كَانَ مِنْكُمْ مِمَّنْ‏ قَدْ رَوى‏ حَدِيثَنَا، وَ نَظَرَ فِي حَلَالِنَا وَ حَرَامِنَا، وَ عَرَفَ أَحْكَامَنَا، فَلْيَرْضَوْا بِهِ حَكَماً؛ فَإِنِّي قَدْ جَعَلْتُهُ عَلَيْكُمْ حَاكِما”<ref>Kulaynī, Al-Kāfī, vol. 1, p. 170</ref>, competent jurists have been appointed by the [[Infallible Imam]] as the arbiters and the rulers in the [[Shia]] society. Therefore, all jurists have the competence and eligibility to formulate the laws and regulations governing the society according to their jurisprudential opinions. However, for the sake of order in affairs, this authority has been vested in a certain number of people. Others avoid to interfere in this area; as a result, the laws are evaluated and approved according to the fatwas of those certain jurists.

===The well-known fatwa===
Relying on the well-known [[fatwa]] of jurists is another attitude in the discussion on the standard fatwa in [[legislation]]. This attitude was taken into consideration in writing the initial draft of [[Iran's Civil Code]] by [[Sayyid Muhammad Fatimi Qumi|Sayyid Muhammad Fāṭimī Qomī]]<ref>Imāmī, Ḥuqūq-i Madanī, vol. 1, p. 5</ref>. Also, according to Mohammad Mehdi Shab-zindidār, a jurist in the [[Guardian Council]], Ayatollah [[Mohammad Ishaq Fayyadh]], a religious [[marja']] living in Najaf, has the same opinion. Among the jurists of the past, Muhammad bin Makkī, known as the [[First Martyr]], believed in the authenticity and validity of the well-known fatwa<ref>Al-Shahīd al-Avval, Ḍikrā al-Shī‘a, vol. 1, pp. 51-52</ref>.

====Proof====
No argument was found in the research resources for the necessity of conformity of the law with the well-known [[fatwa]]. However, two reasons have been mentioned for the validity of the well-known fatwa, which can be reasons for why the law has to conform to the standard fatwa.
First of all, religious scholars’ fatwas are the path, that is, they are the way and route to find the real divine decrees, and implementing them is not a matter in itself. There is a possibility of finding the truth in the fatwa of each [[Mujtahid]], and the probability of finding the truth increases with the number of mujtahids’ opinions. Therefore, when the majority chooses one opinion and another group chooses another opinion, it is more probable for the view of the majority to be the real rule than that of the minority. In such cases, human reason requires to choose the side that is more likely to be the truth<ref>Ibid</ref>.
Moreover, in the [[hadith]] narrated by ‘Umar ibn Ḥanẓalah from [[Imam Sadiq (AS)]], his holiness has ordered the well-known fatwa to be followed in controversial matters, “وَ يُتْرَكُ الشَّاذُّ الَّذِي لَيْسَ بِمَشْهُورٍ عِنْدَ أَصْحَابِكَ؛ فَإِنَّ الْمُجْمَعَ‏ عَلَيْهِ‏ لَارَيْبَ فِيهِ”<ref>Kulaynī, Al-Kāfī, vol. 1, p. 170</ref>. This Maqbūlah is talking of acting on the well-known hadith; however, it is not specifically about hadiths, because the criterion that Imam (AS) has mentioned in the end is important, where his holiness has said that, rationally, there is no reason to doubt the popular and well-known matter. In other words, it is more probable to be the true rule<ref>Anṣārī, Farā’id al-Uṣūl, vol. 1, p. 233; Nā’īnī, Favā’id al-Uṣūl, vol. 3, p. 154</ref>.

===The fatwa of the guardian===
The third point of view is that, in [[legislation]], the standard [[fatwa]] is the [[guardian]]'s fatwa. It means that the head of the political system of the [[Islamic Republic of Iran]] is a just who is pious, aware of the times, brave, has management ability and is resourceful (the fifth principle of the Iranian Constitution). Certain powers and duties are listed in the Constitution for the leader of the system. On this basis, and in fact, the general management of the country is vested in the religious leader of the system. This view also requires that the laws and enactments approved by the parliament should be weighed with the fatwa of the leader. This view has been expressed by people such as [[Hashimi Shahrudi|Hāshimī Shāhrūdī]], a jurist, and ‘Abbās Ka‘bī, a lawyer in the [[Guardian Council]]. The same opinion is extracted from the words of [[Mohammad Momen|Mohammad Mu’min]], one of the former jurists of the Guardian Council<ref>Arasṭā, lecture at the Fahīm institute on 19th April 2014 as quoted by Sayyid Mahmud Hāshimī Shāhrūdī; Mu’min Qomī, Al-Valāyah al-Ilāhīyyah al-Islāmīyyah, vol. 3, p. 515; Ka‘bī, Taḥlīl-i Mabānī-yi Uṣūl-i Qānūn-i Asāsī, fourth principle, 12/10/2017</ref>.

====Proof====
The arguments that confirm this principle are all based on the position of the [[guardian]], particularly in the [[Constitution of the Islamic Republic of Iran]]. Those who argue in favor of this, in fact, consider [[legislation]], implementation and monitoring of the implementation of the law to be the responsibilities of the guardian. Accordingly, the standard [[fatwa]] should be the fatwa of the guardian.
‘Abbās Ka‘bī, of the lawyers of the [[Guardian Council]], says that the guardian jurist has the eligibility to recognize the conformity of rules and regulations with Islamic standards, and he should exercise this eligibility through his [[ijtihad]]. The Guardian council has no validity or subjectivity in itself and supervises the laws only on behalf of the guardian jurist. Therefore, for the Guardian Council, the standard fatwa should be the fatwa issued by the original competent jurist, who is the guardian jurist<ref>Ka‘bī, Taḥlīl-i Mabānī-yi Uṣūl-i Qānūn-i Asāsī, fourth principle, section four, 12/10/2017</ref>.
Muhammad Javād Arasṭā, researcher in jurisprudence, has also emphasized the position of implementing the law and its requirement, which is legislation. He maintains that we can argue as such for this theory that based on the evidence for the [[guardianship of the jurist]], as the administration of the government has been vested in the competent jurist, all the means of administering the government, including lawmaking, have been entrusted to him as well. If someone is in a ruling position, but is not allowed to make laws, he cannot rule the country. According to the general scope of the evidence for the [[guardianship of the jurist]], the guardian has the power to make laws; therefore, his fatwa must be the standard fatwa in legislating laws<ref>Arasṭā, lecture at the Fahīm institute on 19th April 2014</ref>.
It has also been said that the competent jurist who leads the political system of the Islamic society is in charge of implementing the [[Sharia]] and executing divine rules in the Islamic society. The prerequisite of implementing the Book and Sunnah is that rules and regulations must conform to the guardian jurist’s fatwas. It is because he considers his fatwas as divine orders and, based on his principles, the verdicts distinguished by other jurists have no validity in the law of [[Sharia]] and, thus, he cannot implement them<ref>Aliakbarīyān, Fatvā-yi Mi‘yār dar Qānūnguḏārī, pp. 100-101</ref>.

===The fatwa of the most knowledgeable jurist===
The fourth viewpoint holds that the criterion and standard for making laws is the [[fatwa]] of the [[most knowledgeable jurist]] of the time. Among the contemporaries, Muhammad Qā’inī, of the professors of [[Fiqh]] and [[Usul al-fiqh|Uṣūl]] at the highest level of graduation at the [[Seminary]], believe so<ref>Qāyīnī, the second meeting on “Investigating the jurisprudential and legal status of the Guardian Council in legislation” on 28th January 2016, Qom, Fiqh and Ḥuqūq research department at the Islamic Sciences and Culture Academy</ref>. In individual affairs, however, the great majority of [[Shia jurists]] believe in following and imitating the most knowledgeable and learned jurist; however, their ideas do not always require following the most knowledgeable in the lawmaking position. Because, a jurist might consider it necessary to follow the most knowledgeable jurist in individual affairs, but believe [[legislation]] to be of the type of the ruling of the ruler and the judge's opinion and not consider the highest knowledge to be a condition there.

====Proof====
For this opinion, the two reasons of the principles of the wise and [[hadiths]] supporting the [[fatwa]] of the most knowledgeable person have been cited.
The principle of the wise in various issues is to refer to those experts who have more knowledge and expertise than others. This method of the wise has not be rejected by the Prophet and the [[Infallible Imams (AS)]]. Therefore, it is necessary to refer to a jurist who is more knowledgeable than others in religious matters as well<ref>Ḥakīm, Mustamsak al-‘Urvat al-Vuthqā, vol. 1, p. 28; Khū’ī, Maūsū‘ah al-Imām al-Khū’ī, vol. 1, p. 114</ref>. Naturally, it is also necessary to refer to the most knowledgeable jurist in legislating laws.
Based on the hadith narrated by ‘Umar ibn Ḥanẓalah, when two arbiters disagree, [[Imam Sadiq (AS)]] says, “الْحُكْمُ مَا حَكَمَ بِهِ أَعْدَلُهُمَا وَ أَفْقَهُهُمَا وَ أَصْدَقُهُمَا فِي الْحَدِيثِ وَ أَوْرَعُهُمَا”<ref>Kulaynī, Al-Kāfī, vol. 1, p. 171</ref>. Also, in the hadith narrated by [[Dawud ibn Husayn|Dāvūd ibn Ḥaṣīn]] from [[Imam Sadiq (AS)]], his holiness said, “يُنْظَرُ إِلَى أَفْقَهِهِمَا وَ أَعْلَمِهِمَا بِأَحَادِيثِنَا وَ”<ref>Ṭūsī, Tahḏīb al-Aḥkām, vol. 6, p. 301</ref>. Based on these hadiths, in case of disputes in arbitrations, the ruling of the most knowledgeable arbiter is the standard. Since this hadith is not specific to judgments and arbitrations, the same criterion is true about fatwas, as well, because the aim is to find the real verdicts and implement divine rules and regulations<ref>Narāqī, Mustanad al-Shī‘ah, vol. 17, p. 47; Khū’ī, Maūsū‘ah al-Imām al-Khū’ī, vol. 1, pp. 114-115</ref>. According to Muhammad Qā’īnī, just as in individual affairs where the fatwa of the most knowledgeable jurist is the first, the same must be the standard in collective matters and the administration of the country<ref>Qāyīnī, the second meeting on “Investigating the jurisprudential and legal status of the Guardian Council in legislation” on 28th January 2016, Qom, Fiqh and Ḥuqūq research department at the Islamic Sciences and Culture Academy</ref>.

===The efficient fatwa===
Some researchers believe that the standard [[fatwa]] in [[legislation]] must be the most effective one. A fatwa is considered effective if it has three attributes: 1) It should be based on the accepted principles of [[Islamic jurisprudence]] and should not be uncommon. 2) It should form a harmonious collection with the other fatwas based on which laws are made. 3) It should respond to the needs of the time and the [[Islamic government]]. This theory, whose roots can be found in Ṣadr’s statements in the book [[Iqtisaduna]], has been propounded by Muhammad Javād Arasṭā, a professor at university and the seminary. He has stated, “I did not use my fatwa as a criterion in compiling the economic school of Islam, but rather a fatwa that can create a harmonious system with other components of the economic school of Islam”<ref>Arasṭā, lecture at the Fahīm institute on 19th April 2014</ref>.

====Proof====
In short, the reason for this point of view can be explained as follows: based on religious reasons, the [[fatwa]] of the jurist is valid. In [[legislation]], however, the fatwa that is used as the criterion should have an advantage and preference over other fatwas. The following advantages can be considered as the criteria for preference:
A) It should be stronger than other fatwas in providing benefits and repelling harms, and thus in solving individual and social problems; since, divine rules and laws have been set based on true benefits and harms. Therefore, we can conclude that any fatwa that is more congruent with rational or intellectual benefits is more probable to be in conformity with God’s real decree.
B) It should have greater integrity and harmony with those fatwas that have formed the basis of other laws; because, religious rules are a coherent and interconnected set, all of which have been legislated to ensure justice and benevolence.
C) It should have more proponents among the jurists as far as possible; because, the more accepted the fatwa is among the jurists, the higher its validity will be<ref>Arasṭā, Fatwāyi Mi‘yār dar Qānūnguḏārī, pp. 73-74</ref>.

===Choosing between all fatwas===
The permissibility of making laws based on the [[fatwa]] of any qualified jurist is another theory regarding the issue of the standard fatwa. According to this theory, the compliance of the law with any of the fatwas of the [[Shia jurists]] is sufficient, even though that jurist may not be the [[most knowledgeable]] or the [[guardian jurist]] or if the fatwa is not the [[well-known fatwa]]. One of the authors of Afghanistan's Shia Personal Status Law has adopted this opinion and has called it the theory of discretion in legislation<ref>Jūyā et. al., Sharḥ-i Qānūn-i Aḥvāl-i Shakhṣīyyi-yi Ahl-i Tashayyu‘, vol. 1, p. 336</ref>.
This theory can also be attributed to some past jurists as well. Because, about a person who is confused between two different fatwas, [[Muhaqqiq al-Hilli]] has quoted the opinion of a group of jurists who said that he can follow the easiest fatwa<ref>Ḥillī, Ma‘ārij al-Uṣūl, p. 214</ref>.

====Proof====
A number of reasons have been cited for this point of view:
First is adherence to the conduct of the religious people, with the explanation that during the lives of the [[Infallible Imams]], their companions and followers used to refer to prominent religious scholars and the Imams’ companions, while they were very different together in terms of scientific excellence and even had differences of opinion. This tells us that it is permissible to refer to any of the prominent scholars of [[Sharia]] in religious matters, as the Prophet and the [[Infallible Imams]] guided the Islamic community to refer to their companions. If it was necessary to refer to the most learned ones, then people would have had to refer exclusively to the Prophet and the [[Infallible Imams]], because nobody was more knowledgeable than them in that era<ref>Jūyā et. al., Sharḥ-i Qānūn-i Aḥvāl-i Shakhṣīyyi-yi Ahl-i Tashayyu‘, vol. 1, p. 337</ref>.
The general scope of the meaning of the [[nafr verse]] and the question from the [[ahl al-dhikr]], as well as the general scope of the hadiths about the necessity of referring to the scholars of religion can be cited as evidence for this matter. Because, on the one hand, religious texts have obliged Muslims to refer to religious scholars, and on the other, there is no doubt that the levels of understanding of the narrators at the time when the hadiths were stated by the Infallible people were different. Also, in later times, there have been differences in understandings because of differences in perceptions and assumptions. Despite this, the [[Sharia]] has referred the society to religious scholars. This means that the [[Sharia]] does not consider this amount of division to be harmful and counts all opinions as valid<ref>Ibid</ref>.
In addition to the abovementioned evidence, [[Muhaqqiq al-Hilli]] has cited the verse “يُرِيدُ اللّٰهُ بِكُمُ الْيُسْرَ ولٰا يُرِيدُ بِكُمُ الْعُسْرَ” (Baqarah: 185), and the verse “مٰا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ” (Hajj: 78) and the hadith “بعثنی بالحنيفية السهلة السمحة”<ref>Kulaynī, Al-Kāfī, vol. 11, p. 131</ref> to support the permissibility of referring to the simpler fatwa<ref>Ḥillī, Ma‘ārij al-UṣūlI, p. 214</ref>. It is clear that when man can act according to the simplest fatwa, he can in fact choose between all the differing fatwas.

===The fatwa according to caution===
The other possibility is to set the [[fatwa]] according to caution as the standard when making laws. This possibility has no proponent and has merely been mentioned as a scientific probability. An evidence for this can be the obligation to fulfill divine duties, from which one cannot be released without acting according to caution. This idea can be understood from what [[Muhaqqiq al-Hilli]] has written in his Mi‘rāj al-Uṣūl about an individual who is confused between two differing fatwas. After quoting the simplest fatwa, he has written, “إذا اختلفت (الأمّة) على قولين، هل يجب الأخذ بأخفهما حكماً بتقدير عدم الدلالة على كل واحد منهما‌؟ صار إلى ذلك قوم و قال آخرون: بالأثقل”<ref>Ibid</ref>. This standpoint, however, is about choosing a fatwa in the area of individual actions. Nonetheless, because of the similarity between individual and collective actions, this standpoint can be extended to [[legislation]] as well.

==The standard fatwa in Sunni Jurisprudence==
Those among the [[Ahl al-Sunnah]] who allow [[legislation]] based on the [[Sharia]], have difference of opinion about how laws can be made based on the [[Sharia]]. They have proposed at least three opinions.

===Consultative legislation===
Some [[Sunni]] jurists believe that in order to make laws based on the [[Sharia]], a definite group of religious scholars need to be determined who will write the [[Sharia]] in a new way in the form of articles of law. Naturally, a consultative work proceeds based on the majority vote. Al-Zuḥaylī, a contemporary jurist, believes so and calls it as [[collective ijtihad]]. A similar attitude exists among the [[Ahl al-Sunnah]] regarding disagreements about the rules of [[Sharia]] or social affairs, such that in the case of a dispute between the arbitration panel or the Supreme Court, this group will arbitrate and the vote of their majority will be acted on<ref>Al-Zuḥaylī, Al-Fiqh al-Islāmī va Adillatih, vol. 8, p. 6135</ref>.

===Choosing an efficient and fit for purpose fatwa===
One viewpoint among the [[Sunni]] scholars is that the legislative body should set as law a vote and [[fatwa]] that fits the purposes of the [[Sharia]] and meets the needs of the time. This law can be formulated based on the fatwas of scholars of one or several [[Islamic denominations]].
This method has a history in Sunni society. Majallat al-Aḥkām al-‘Adlīyya was published based on this criterion during the [[Ottoman Caliphate]], and fatwas were selected in this collection that met the needs of the time<ref>Badrān, Tārīkh al-Fiqh al-Islāmī, p. 109</ref>. Before that, another collection called "Fatāvā-yi Hindīyyah" was published based on the [[Hanafi]] denomination, in which the selection criterion was the superior and preferable fatwa<ref>Zarqā, Al-Madkhal al-Fiqhī al-‘Ām, vol. 1, p. 238</ref>. In one of his criticisms, Zarqā considered staying limited to the [[Hanafi]] denomination as one of the weak points of the Majallat Al-Aḥkām and believed that if it did not remain exclusive to a particular denomination, it would be better able to respond to the needs of the time<ref>Ibid, pp. 243-244</ref>. The mentioned criticism indicates that this opinion is acceptable with some developments. This point of view is called selective (Intiqāyī) [[ijtihad]]<ref>Al-Rāzī, al-Ijtihād al-Intiqāyī fī al-Fiqh al-Islāmī, p. 58 & pp. 324-325</ref>.

===Choosing the strongest fatwa based on the reason and criteria of preference===
A number of [[Sunni]] scholars believe that [[legislation]] should be based on [[ijtihad]] and inference from religious evidence, such that the opinions of the jurists of the [[Islamic denominations]] are considered along with their evidence, then the strongest [[fatwa]] in terms of its evidence will be chosen as the law based on the preference criteria. The criteria for superiority include being compatible with the people of the time, being easier for the people, further fulfilling the purposes of the [[Sharia]], attracting the interests of people and warding off corruption from them<ref>Qarḍāvī, Al-Ijtihād fī al-Sharī‘ah al-Islāmīyyah, p. 115</ref>. [[Yusuf al-Qaradawi|Qarḍāvī]] holds this idea among the well-known contemporary jurists<ref>Qarḍāvī, Al-Tashrī‘ al-Islāmī ‘Ahammīyyatih va Ḍavābitih</ref>.
This point of view is not confined to the circle of the sayings of various denominations, but beyond that, based on the evidence and criteria of ifta, it may set as law an opinion that has no history among the jurists of various denominations. A group of late Sunni jurists held this opinion, and sometimes this point of view is referred to as initial selective ijtihad<ref>Ḥāmid Ḥasūnah, Manāhij al-Ijtihād al-Fiqhī al-Mu‘āṣir, p. 312</ref>.

==Related Essays==
* [[Law making]]
* Converting jurisprudential rules into law
* [[Study resources of standard fatwa]]
* Customary lawmaking
* [[Guardian Council]]
* The relationship between law and Sharia

==Footnotes==
<references />

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* Zarqā, Mustafa, Al-Madkhal al-Fiqhī al-‘Ām, Dār al-Qalam, Damascus, Dār al-Shāmīyyah, Beirut, 1998
* Ṣūrat-i Mashrūḥ-i Muẓākirāt-i Majlis-i Barrisī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 2, no date
* Ṭūsī, Muhammad ibn Hasan, Tahẓīb al-Aḥkām, Dār al-Kutub al-Islāmīyyah, Tehran, 1987
* ‘Āmilī, Muhammad ibn Makkī, Ḏikrā al-Shī‘a, Āl al-Bayt institute, Qom, 1998
* ‘Aliakbarīyān, Hasan‘ali, Fatwāyi Mi‘yār dar Qānūnguḏārī, Dīn va Qānūn journal, No. 2, 2014 winter
* Fatḥī, Muhammad and Kūhī Iṣfahānī, Kāẓim, Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran Hamrāh bā Naẓarāt-i Tafsīrī-yi Shūrā-yi Nigahbān (1981-2018), Guardian Council Research Institute, Tehran, 1397
* Qarḍāvī, Yūsuf, , Al-Ijtihād fī al-Sharī‘ah al-Islāmīyyah, Kuwait, Dār al-Qalam, 1997
* Ibid, Al-Tashrī‘ al-Islāmī ‘Ahammīyyatih va Ḍavābitih, Mūqi‘ Samāḥah al-Shaykh Yūsuf al- Qarḍāvī
* Ka‘bī, ‘Abbās, Taḥlīl-i Mabānī-yi Uṣūl-i Qānūn-i Asāsī, fourth principle, published on 12th October 2017 on vasael.ir website
* Kulaynī, Muhammad ibn Ya‘qūb, , Al-Kāfī, Qom, Dār al-Ḥadīth, 2008
* Persian Constitution of 1906, 30th December 1906
* Mu’min Qomī, Muhammad, Al-Valāyah al-Ilāhīyyah al-Islāmīyyah, Nashr-i Islāmī institute, Qom, 2004
* Nā’īnī, Muhammad Hussein, Favā’id al-Uṣūl, interpreted by Muhammad Ali Kāẓimī, Nashr-i Islāmī institute, Qom, 1997
* Narāqī, Ahmad, Mustanad al-Shī‘a, Qom, Āl al-Bayt institute, Qom, 1995

[[fa:فتوای معیار]]
[[ar:الفتوى المعيارية]]

Weapons of Mass Destruction

2026-10-02T18:30:09Z

Enadmin:

{{Author
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* '''abstract'''
'''Weapons of Mass Destruction (in Persian: [[:fa:سلاح‌های_کشتارجمعی|سلاح‌های کشتارجمعی]])''' Whether microbial, nuclear, or chemical weapons, [[weapons of mass destruction]] are among the new [[war]] tools that were produced alongside the emergence of industry and the advancement of science. As a result, new issues and rulings have also entered scientific and [[jurisprudence|jurisprudential]] discussions. This topic has not been mentioned directly in religious texts and the jurists have extracted its ruling from generalities, applications, and common laws. What is included in the use of [[weapons of mass destruction]] is the killing of defenseless people and civilians and the destruction of their property far from the conflict scene. In addition, they are in support of Islamic rights because the principle of separation in goals is considered one of the absolute principles of [[jihad]] in Islam. A group of jurists have issued a [[fatwa]] regarding the sanctity of production and maintenance and many of them have issued a fatwa on the sanctity of using this type of weapon. Also, in the position of dealing with the similitude, some fatwas have been given on sanctity and some have considered it permissible. In case of necessity or emergency, many jurists have accepted the use of these weapons as permissible.

==The Problem of the Study and its Significance==
The issue of controlling [[weapons of mass destruction]], especially atomic and [[nuclear weapons]], is considered one of the most important legal and social issues in the contemporary world. The use of [[weapons of mass destruction]] since its creation has become an arena for [[jurisprudence|jurisprudential]], legal, ethical and strategic discussions, especially after its use in World War II.

==Conceptology==
In short, [[weapons of mass destruction]] are weapons that have four characteristics: (a) they don't differentiate between military and civilians; (b) They destroy the environment directly or indirectly; (c) They cause widespread killing and destruction; and (d) Their effects are irreparable.<ref>Abdi et al., analytical review of the concept of weapons of mass destruction, p. 730.</ref>
These weapons include [[atomic weapons]], [[biological weapons]], and [[chemical weapons]].<ref>Rabbani and others, examining the evidence of the permissibility or sanctity of the production and accumulation of weapons of mass destruction, p. 90.</ref> [[Nuclear weapons]] are capable of destroying or poisoning on a very wide scale. [[Biological weapons]] affect living organisms, including humans, animals, and plants. According to the Convention on the Proliferation of Chemical Weapons approved in 1993, [[chemical weapons]] include all chemical substances, whether in the form of gas, liquid or solid, which are used due to their direct toxic effects on humans, animals and plants.<ref>Momtaz, International Law of Weapons of Mass Destruction, pp. 16-13.</ref>

==Different forms of Production and Use of Weapons of Mass Destruction==
Muslim jurists have separated and discussed the two issues of "production and maintenance" of unconventional weapons from "using" them. The ruling on the production of [[weapons of mass destruction]], as well as its use, has been disputed and debated by scholars. Some have given respect and some have given conditional permission.
The use of [[weapons of mass destruction]] can be imagined from three perspectives. First, the initial use of [[weapons of mass destruction]] against the enemy. Second, the use of [[weapons of mass destruction]] in the position of confrontation. Finally, the use of [[weapons of mass destruction]] in the position of emergency or necessity.

===The Theory of Respect for Production and Maintenance===
A group of Shiite jurists consider the production and storage of non-conventional weapons, including [[nuclear weapons]], to be forbidden and have given at least three reasons for it.Sanctity due to the introduction of forbidden, sanctity due to harm to others and sanctity due to literalness and extravagance.

====Argument against the Sanctity of the Premise is Forbidden====
For the sanctity of producing and keeping [[weapons of mass destruction]], they have argued that producing and keeping weapons is a prelude to using them, on the other hand, we know that using these types of weapons is forbidden, and since the preamble is Fazlollah, it is forbidden, so is the production and keeping of unconventional weapons.<ref>Habollah, Fiqh al-Bay'ah and Aslaha al-Dammar al-Shamel, p. 8.</ref> Among the ideas put forward about the forbidden introduction, some, such as [[Akhund Khurasani|Khorasani Mukhtar]], consider only the introduction of the production to be forbidden<ref>Akhound Khorasani, Kefaiya al-Oosul, p. 128.</ref>, that is, the introduction that, with its occurrence or ….. will also be certain. Others generally do not consider the introduction of forbidden issues to be forbidden.<ref>Khomeini, Manahaj al-Vosoul, Vol. 1, p. 415.</ref> With this detail, the production of [[weapons of mass destruction]] is not necessarily forbidden according to both opinions.

====Considering the Forbidden Introduction====
Another argument for the sanctity of making and keeping weapons is that trying to obtain [[weapons of mass destruction]] seriously harms the environment and ultimately humans, even their psychological security. At least, one should refer to the experts of it. Some reports indicate that the radiation and atomic ashes from atomic tests that spread to a wide range cause various diseases and harmful effects. Possession of [[weapons of mass destruction]] will be prohibited due to the sanctity of harming others.

====Cancellation and Extravagance====
The third reason for banning the production of [[weapons of mass destruction]] is its absurdity and extravagance due to its exorbitant costs.<ref>Rabbani et al., "Examining the evidence of the permissibility or sanctity of the production and accumulation of weapons of mass destruction", p. 104.</ref> [[Ayatollah Khamenei]] considers the production of [[weapons of mass destruction]] to be pointless, expensive, troublesome and risky<ref>Statements at the meeting of nuclear scientists. Browsing the news on August 7, 1401.</ref> which, except for the cost of creating and there is no use in keeping.<ref>Statements on the 19th anniversary of Imam Khomeini's death. Browsing the news on August 7, 1401.</ref> Hence if the evidence of the obligation to produce and use these weapons (such as verse 60 of Anfal) are unable to prove the obligatory ruling, the sanctity of production can be proven due to extravagance.

===Production and Maintenance Permission Theory===
A group of Shiite jurists have considered the production and storage of [[weapons of mass destruction]] permissible. The most important arguments that can be raised for the permission to produce [[weapons of mass destruction]] are the same reasons as the need to prepare for defense and the need to be equipped with weapons in order to deter the enemy.

====Verse 60 of Surah Anfal====
Verse 60 of [[Surah Anfal]]: "We promised them what I could..." It includes any type of weapon, including mass killing and others, and for the sake of preparation and deterrence power, so it should be produced. As [[Mohammad Yazdi]] specifies this point in the jurisprudence of the Qur'an.<ref>Yazdi, Fiqh al-Qur'an, vol. 2, p. 254.</ref> Or [[Heydar Habollah]] believes that according to the appearance of the order of "اعدوا" it is obligatory to be ready and prepare facilities for defense and confrontation with the enemy. If the verse includes the preparation of [[weapons of mass destruction]], the production and their preparation is not only permissible but obligatory.<ref>Habollah, Studies in Contemporary Islamic Fiqh, Volume 2, p. 317.</ref> Furthermore, the appearance of the verse is the necessity of preparation in order to create fear in the enemy, even if there is no war, which can be applied to the acquisition of [[weapons of mass destruction]] or at least some of them.<ref>Habollah, Studies in Contemporary Islamic Fiqh, Volume 2, p. 317.</ref>
Some also believe that if having combatant human forces, or conventional weapons, does not create fear in the enemy's heart, one should turn to unconventional weapons, as the adverb "ability" shows that one should use all one's power to achieve that goal<ref>Rabbani et al., Examining the evidence of the permissibility or sanctity of the production and accumulation of weapons of mass destruction, p. 93.</ref> [[Mousavi Ardabili]] considers it permissible to build [[weapons of mass destruction]] with the permission of the religious jurist and in line with the expediency of the system and the defense of Islam.<ref>Nasser, al-Muntalqat al-Faqih Al-Nazryyah Al-Tafsil fi Entaj Aslaha Al-Damar Al-Shamel, number 4, p.50.</ref>

====Verse's Rejection of non-Conventional Weapons====
It has been said that the verse of [[Surah Anfal]] is restricted to conventional weapons due to its many uses, therefore it indicates the permissibility of the problem and cannot prove the preparation and preparation of war facilities and [[weapons of mass destruction]].<ref>Rabbani et al., "Examination of the evidence of the permissibility or sanctity of the production and accumulation of weapons of mass destruction", p. 92.</ref>
Some people, considering the meaning of the two words " power" and "you welcome", believe that the contents of the verse and the meaning of "power" in it recommend a power that destroys the desire of enemies to invade and adventure against Muslims. [[Weapons of mass destruction]] not only do not create security, but also cause fear and insecurity in its owners. Therefore, such weapons are specifically excluded from the scope of the verse, and any use of this verse as a general rule-maker is ruled out. As [[Imam Khomeini]] and [[Ayatollah Khamenei]] believe that [[weapons of mass destruction]] not only do not ensure the peace and security of the human society, but are a serious calamity and threat against humanity and security.<ref>Khomeini, Sahifa Imam, vol. 17, p. 393; Khamenei, message to the first international conference on nuclear disarmament and non-proliferation. Browsing the news on August 7, 1401.</ref>

====Verse 11 of Surah Nisa====
Verse 11 of [[Surah Nisa]] is also cited as the reason for the permission to make and keep unconventional weapons; "O you who believe, take heed, and let them be firm, or let them all be." In this verse, the meaning of "take heed" is to be awake and alert and take care against danger so wide that it includes any material and spiritual means.<ref>Makarem Shirazi, Tafsir al-Nemoune, vol. 4, p. 4.</ref> Therefore, it includes being equipped with the most modern weapons of the day, including advanced [[weapons of mass destruction]]. And the verse not only indicates permissibility, but also indicates obligation.<ref>Rabbani and others, examining the evidence of the permissibility or sanctity of the production and accumulation of weapons of mass destruction, p. 98.</ref>

==Considering the Primary Use==
As for the primary use of [[weapons of mass destruction]], all Shiite experts care about it and there is no reason for its permissibility. They have cited several verses, narrations and jurisprudential rules for this claim.

===Quran verses===
The verse on killing, "I killed a soul without any corruption in the earth, so we killed all the people" (Maedeh/32) considers killing an honorable person as killing all human beings, so killing the inhabitants of a city or country in which innocent people are killed by the first way. Also, it will be very ugly from God's point of view and God is not pleased with it.<ref>Rostami et al., "Criminality of action against humanity by means of nuclear weapons from the point of view of jurisprudence", p.105.</ref>
According to verse 205 of Surah Al-Baqarah,
" To spoil it and destroy the crops and the stock, and God does not like corruption.." Destruction of fields and genocide are examples of corruption in the land. And it is clear that microbial, chemical, nitrogen and [[nuclear weapons]] are the most obvious factors that cause corruption on earth.<ref>Rostami et al., "Criminality of action against humanity by means of nuclear weapons from the point of view of jurisprudence", p.105.</ref>
Another reason is the verse of attack(اعتدا): "So, I have attacked you against you like we have attacked you" (Al-Baqarah/194). From which we can conclude the two principles of "proportion in war weapons" and "distinction between military and civilian enemies".<ref>Rostami et al., "Criminality of action against humanity by means of nuclear weapons from the point of view of jurisprudence", p.105.</ref>
According to the principle of proportionality in war weapons, when the enemy uses a weak or strong weapon, the other party must react accordingly. While this proportion does not exist in [[weapons of mass destruction]] and these weapons are usually used against non-aligned weapons or in an elementary way.
According to the principle of distinction/separation, there should be a distinction between military and civilians in war. Groups such as children, women, the elderly, the sick, the injured, as well as animals, trees, farms, and the environment in general are considered separate from military targets and should not be attacked. [[Allameh Tabatabaei]] believes that women, children, old people and the like are specifically excluded from the verse of aggression.<ref>Tabatabaei, Al-Mizan, vol. 2, p. 61</ref>

===Traditions (Hadiths)===
Prohibiting the use of unconventional weapons is also used in some traditions (hadiths), the content of which is the prohibition of excesses in war, mutilation of the dead, killing the elderly, children and women, and cutting down trees except in an emergency situation. Moreover, the traditions that forbid the release of poison in the land of enemies. Some of them are as follows.
* “On the authority of Abu Abdullah (PBUH) who said: The Messenger of God (PBUH) used to say... Do not go to extremes, do not mutilate, do not act treacherously, do not kill a mortal old man, a boy, or a woman, and do not cut down trees unless you are forced to do so...”,<ref>Horre Amoli, Vasael al- Shi'ite Ways, vol. 15, p. 58.</ref>
* “On the authority of Abu Abdullah (PBUH) who said: The Prophet (peace be upon him) ... says... And do not betray, do not commit excess, do not impersonate, and do not kill a child.”[25]
* Sakuni’s narration; The Prophet (PBUH) forbade throwing poison into the lands of the polytheists.”[26]. [[Mohammad Sadr]] clarifies in this way that although the title of poison is used in Sokouni's narrative, poison is not the subject, but its criterion includes any non-conventional weapon.[27] Because if the use of poison that damages a limited area is forbidden. It is forbidden to use atomic bombs and [[chemical weapons]] in the first way.

===Jurisprudential Rules===
In addition to the narrative and Qur'anic texts, some jurisprudential rules such as [[La Darar|harmlessness]], sin and personal nature of punishment Principles are also mentioned as reasons for the sanctity of the primitive use of [[weapons of mass destruction]];
According to the harmlessness principle, no one has the right to inflict irreparable and uncontrollable harm on others under the pretext of self-defense. While [[weapons of mass destruction]] cause irreparable damage to humans and nature.<ref>Afzalzadeh et al., The use of weapons of mass destruction from the perspective of jurisprudence and international law, p.91.</ref> Or according to the rule of sin, if the sin of an act is greater and greater than the benefit and benefit of that act, it causes the sanction of that act.<ref>Boroujerdi, Lomahat Al-Osoul, p. 239.</ref> Nuclear weapons are clearly sin. They are bigger than profit. And even though the verse "Its damage is greater than its benefit (Al-Baqarah, 219) is about "wine and miser", it can be applied to any case in which the sin is greater.<ref>Afzalzadeh et al., The use of weapons of mass destruction from the perspective of jurisprudence and international law, p.91.</ref> According to the "[[Wizr (Sin-Bearing)|rule of minister]]"<ref>Taken from verse 164 of Surah An'am: "ولاتزروا وازره وزر اخرا"</ref> In other words, the "principle of the personal nature of punishment", the scope of punishment should not go beyond the scope of those who deserve it.<ref>Mohaqqeq Damad, Jurisprudence Rules, Vol. 4, p. 158.</ref> Therefore, it is an example of the minister's rule.<ref>Afzalzadeh et al., The use of weapons of mass destruction from the perspective of jurisprudence and international law, p.91.</ref>

==The use of weapons of mass destruction in retaliation==
One of the issues that can be discussed in the use of [[weapons of mass destruction]] is the authority of reciprocation, which is one of the bases of legitimate defense. Today, one of the most important topics in jurisprudence and international law is determining the limits and limitations of using [[weapons of mass destruction]] in the light of the rule of reciprocity. Although this rule breaks the principle of sanctity and governs it, its implementation should not cause harm to the third party and the party not involved in the war, so as to exclude confrontation from equality.<ref>Habollah, Fiqh al-Bay'ah and Aslaha al-Dammar al-Shamel, p. 30.</ref>

===The Boundary of Reciprocity is Limited===
For the permission to reciprocate, the verse of attack has been relied on. Although this verse refers to the permissibility of reciprocating, it cannot achieve the necessity of similarity in all components.<ref>Elahian et al, Weapons of mass destruction in the position of confrontation from the point of view of jurisprudence, Jurisprudential Research Quarterly, Volume 14, Number 4, p. 8.</ref> [[Imam Khomeini]] believes that this verse does not indicate similarity in the amount of aggression and only refers to the principle of aggression. Because the acceptance of this matter requires that the noble verse also considers the similarity in the details of the war and it is clear that such a similarity is not possible in the war. Therefore, the noble verse has expressed the similarity in the principle of attack.<ref>Khomeini, Kitab al-Bai, vol. 1, p. 481.</ref>
As according to verse 40 of Surah Shura, it has also been said that the oppressed can retaliate against the oppressor and return the same amount of oppression to him for the injustice done to him. But there must be a balance between the enemy's aggression and countermeasures. While in [[weapons of mass destruction]], there will be no proportionality between aggression and confrontation. [[Weapons of mass destruction]] cause the destruction of property and lives of civilians and the environment, and the proportion in the details of these disasters between the two aggressor and opposing groups seems unreasonable.<ref>See: Elahian et al., weapons of mass destruction in the position of confrontation in terms of jurisprudence.</ref> Therefore, there is no justification for the permissibility of using [[weapons of mass destruction]] because of reciprocation .

==Use of Weapons of Mass Destruction when it is Necessary==
In Islamic jurisprudence, the necessity of emergency causes the change of the primary real commandment to the secondary one. In the war between Muslims and infidels, if the preservation of the principle of Islam or the Muslim population stops using any means, or if the enemy uses unconventional weapons, or if the Muslims know that if they do not use these types of weapons, the principle of the religion or the entire Muslim population will be destroyed. The example of necessity will be realized. The use of [[weapons of mass destruction]] in this assumption is the place of discussion.

===Proponents of absolute use of equipment under the assumption of necessity===
Regarding the quality of Jihad, several jurists have considered the criterion in war to be the preservation of Islam and the victory of Muslims. They have issued a [[fatwa]] on the use of any measure for the victory of Muslims. [[Mohaqqeq Helli]] is in the book of Sharia al-Islam stating that if victory is achieved through a method other than the introduction of poison , it is not possible, it is permissible. Additionally, killing children and women who help the infidels is also permissible in the case of emergency.<ref>Mohaqqeq Helli, Islamic Laws in Halal and Haram Issues, Volume 1, p. 283.</ref> [[Sheikh Tusi]] also considers it permissible, but rather obligatory, to use everything that is prohibited in the campaign,if it is necessary for the conquest of the Muslims.<ref>Tousi, al-Mabusut fi fiqh al-imamiya, vol. 2, p. 11.</ref> [[Fakhr al-Muhaqqiqin]] in Izah,<ref>Helli, Al-Fawaid's testimony, vol. 1, p. 357.</ref> [[Shams al-Din al-Hilli]],<ref>Helli, Ma'alim al-Din fi Fiqh al-Yasin, vol. 1, p. 289.</ref> [[Mohaqqeq Karaki|Mohaqqeq Korki]] who writes: "The right to fight with all of us is permissible in the fate"<ref>Mohaqqeq Sani, Jami al-Maqasid fi Sharh al-Qasas, vol. 3, p. 384.</ref>. [[Ibn Junayd]]<ref>Helli, Mokhtalef Al- Shi'ites in Al-Ahkam al-Sharia, Vol. 4, p. 391.</ref> and [[Allamah al-Hilli]]<ref>Helli, Mokhtalef Al- Shi'ites in Al-Ahkam al-Sharia, Vol. 4, p. 391.</ref> among other jurists believe in using any war tool in the assumption of stopping victory over it. [[Shahid Thani]]’s documentary on the sanctity of the use of poison is abhorrent and says: If the opening stops, it is obligatory ".<ref>Shahid Thani, Masalak al-Afham, vol. 3, p. 25.</ref> [[Sahib al-Riyad|Sahib of Riyadh]] also rejected the prohibition traditions.<ref>Tabatabayi, Riyad al-Masael, vol. 8, p. 69.</ref> He considers the use of war weapons as permissible, but the use of poisons is prohibited even in the assumption of stopping victory over it.<ref>Iraqi, Commentary on the Commentary of al-Mutalamin, vol. 4, p. 404.</ref>
[[Seyyed Mohammad Hossein Fadlallah]] also considers the use of [[weapons of mass destruction]] as forbidden as the first and permissible as the second. This title is the stopping of the victory over the enemy and repelling their domination, which is realized with the discretion of the commander and after consulting the experts.<ref>Fazlollah, Ali, Al-Jihad, p. 296. Quoted from: Nasser, "Al-Dammar al-Shamel Men Manzour Islamic jurisprudence".</ref> This literature shows the principle of sovereignty and the necessity of Muslims to dominate the infidels by using unconventional methods of Jihad. At least in the assumption of emergency, it has been mentioned among the jurists.

===Opponents of the use of unconventional weapons even under the assumption of necessity===
The most important reason for the authenticity of this statement is the narration of [[Imam Sadiq (PBUH)]]: "The authority of the people of Madinah is the city of war. Is it permissible to send fire or burn them with fire or throw them with grenades until they are killed, including women and children, Sheikh Al-Kabeer, and Al-Usra from Muslims and merchants?" ? He said: "I will do it to him":<ref>Horre Amoli, Vasael Al-Shiite, Vol. 15, Chapters of Jihad al-Adaw, Chapter 16, p. 62, Hadith 2.</ref> The pronunciation of this narration indicates the permissibility of killing civilians, and its application indicates the permissibility of using non-conventional weapons. But in this document, Qasim bin Mohammad is an unknown person. Sulaiman bin Davoud Monqari and Hafs bin Ghiyath have also been weakened by some Shiite rulers.<ref>Taqizadeh, Rejal Hamrah, p. 140, no. 2454 and p. 191, no. 3291 quoted by: Alidoust, Jurisprudence on Production, Accumulation and Use of Unconventional Weapons with the focus of Imami Jurisprudence, p. 17.</ref>
[[Mohammad Javad Fadel Lankarani]] believes that there is no rule that prescribes any action for the conquest and conquest of Muslims. Although in the words of the jurists there are interpretations such as "we stop against the conquest"<ref>Shahid Sani, al-Rawza al-Bahiyyah in Sharh al-Lama' al-Dumashqiyyah, vol. 2, p. 392.</ref> which indicates the use of any war tools, considering the evidence, we come to the conclusion that there is no such rule. Because we have no reason that Muslims can or should do anything to preserve Islam. Rather, the preservation of Islam has meaning within the circle of legitimate means, and it is not necessary to preserve Islam if it stops at killing thousands of infidel women and children.<ref>Fazel Lankarani, "Production and use of weapons of mass destruction from the perspective of Islamic jurisprudence", p. 32.</ref>

==Approaches and Views in Sunni jurisprudence==
The issue of producing [[weapons of mass destruction]] and its use in Sunni thought is focused on whether the principle of communication between Muslims and infidels is in conflict (at war) or at peace. Accordingly, the opinions of Sunnis can be classified into two approaches: the originality of peace and the originality of war.

===The principle of communication with infidels is war===
The ancient Hanbali, Shafi'i, Hanafi and Maliki jurists believe that war is the principle of communication between Muslims and infidels. Therefore, as long as there is no such thing as "faith" and "trust" that causes peace, it is the duty of Muslims to fight. As a result, the preparation of Muslims to overcome disbelief even before the outbreak of war is necessary to the highest possible degree. According to it, acquiring and using any kind of weapons to overcome should be legitimate.<ref>Abd Al-Rahman Shahab, non-traditional weapons in Islamic jurisprudence, p. 11.</ref>
Some consider the lack of equipping Muslims with new weapons in case the enemy acquires them as the cause of weakness and weakness of Islam and insists on the necessity of using them by referring to the verses of "اعتدا" and "تهلکه" and "اعدا ". This view the rule of sanctity to be exclusive to basic use and does not consider the permission of use to be necessarily limited to the occurrence of an emergency and the suspension of victory over the infidels.<ref>Yasen, Al-Islam al-Navi, p. 206.</ref>

===The principle of communication with infidels is peace===
Most of the late [[Sunni]] jurists and some of the early ones believe that the principle of communication between Muslims and infidels is peace. This group considers the war with the infidel to be conditional on the occurrence of "war" and not only "infidelity". Therefore, it considers the acquisition of any weapons conditional to the occurrence of war and for the purpose of defense. Therefore, according to this theory, the use of [[weapons of mass destruction]] is not legitimate.<ref>Abd Al-Rahman Shahab, non-traditional weapons in Islamic jurisprudence, p. 11.</ref>
[[Rashid Rida]], a Sunni commentator, based on the title of اعتدا in verse 194 of Surah Al-Baqarah, writes: "Starting a war, killing Muslim people, fighting civilians, like children and women, is abhorred and usurped by God."<ref>Rashidreza, Tafsir al-Manar, vol. 2, p. 168.</ref> Dr. [[Wahbah al-Zuhayli]] contends that “ Using [[weapons of mass destruction]] is against the principles of mercy in Islam, but if this event is initiated by the enemy, Muslims are allowed to use this tool for confrontation and necessity and to repel aggression”.<ref>Al-Zahili, the weapons and methods used and the prohibited means in war: the weapons of total destruction.</ref>
Others have also pointed to the division of [[weapons of mass destruction]] into two types, strategic and tactical. They have named weapons with a long range that can destroy a region or a country as strategic weapons, and weapons with a shorter range as tactical weapons. The production of weapons of the first type with the purpose of deterrence is allowed and its use is only legitimate for countermeasures, but the production and use of the second type is absolutely permissible.<ref>Al-Salahin, "Al-Aslaha Al-Damar Al-Shamel and the Rules in Islamic Jurisprudence", p. 141.</ref> The overlooked point in this division is that perhaps the weapons Mass killings have a low range and are not subject to the definition of the second type.

==Study References==
{{main|Weapons of mass destruction (study resources)}}
The main references of this subject in Shiite jurisprudence are as follows:
* Al-Aslaha Al-Damar Al-Shamel and the position of Islamic jurisprudence: a comparative study, Adel Mosa Avaz.
* Jurisprudential analysis of the sanctity of using weapons of mass destruction, Gholamreza Arefian and Mohammad Reza Olyaei.
* Jurisprudence of al-Bay'ah and comprehensive weaponry: An introduction to the first jurisprudential approach, Heydar Haballah.
* Nuclear Jurisprudence, by Abolqasem Alidoust.
The main references of this subject in [[Sunni jurisprudence]] are as follows:
* Weapons and methods used and prohibited means in war: Al-Aslaha Al-Damar Al-Shamel, Wahaba bin Mohammad al-Zahili.
* Non-traditional weapons in Islamic jurisprudence, Mahmoud Ebrahim Abd Al-Rahman Shahab.
* Weapons of mass destruction and rules in Islamic jurisprudence, Abdul Majid Mahmoud Al Salahin.
* Al-Aslaha al-Navi: A comparative study between Islamic jurisprudence and nations’ laws, Yasen Abdul Latif Abdul Halim Mohammad.

==Footnote==
<references />

==References==
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* Ibn Manzoor, Mohammad Ibn Makram (Bita), Lasan al-Arab, Beirut, published.
* Abi al-Azhari, Saleh bin Abdul Sami (Beita), al-Thamr al-Dani, Beirut: Al-Taqafiyah Library.
* Al-Zahili, Wahaba bin Mohammad, Al-Aslaha va Al-Asalib Al-Mostakhdema va Al-Vasael Al-Moharrama fi Al-Horoub: Aslaha Al-Damar Al-Shamel, Nahj al-Islam Magazine, Volume 24, Number 92, 2003.
* Afzalzadeh, Razieh et al., "The use of weapons of mass destruction from the perspective of jurisprudence and international law", Islamic Jurisprudence Foundations, 10th year, number 19, 2016.
* Elahian, Mojtaba et al., weapons of mass destruction as countermeasures from the point of view of jurisprudence, Jurisprudential Research Quarterly, Volume 14, Number 4, 2017.
* Boroujerdi, Hossein Lomahat Al-Osoul, Imam Khomeini's recitations; Ruhollah, Edition: First, Imam Khomeini Editing and Publishing Institute, Qom. (1421 AH),
* The information base of the Office for the Preservation and Publication of the Works of Ayatollah Khamenei khamenei.ir
* Habollah, Heydar, Darasat fi fiqh al-Islami al-Moaser, 1st edition, Qom, Dar al-Fiqh al-Islami al-Mawdari. (1432 AH)
* Habollah, Heydar, Fiqh al-Bay'ah and Al-Dammar Al-Shamel Weapons: An entry for the first jurisprudential approach, Al-Fiqahah Magazine, No. 18. (2010)
* Horre Amoli, Mohammad bin Hasan, the description of Shia's tools for the study of Shari'a issues, Al-Al-Bayt Institute, Qom. 1409 AH.
* Helli, Shams al-Din Mohammad bin Shuja al-Qattan (Ma'al al-Din Fi Fiqh al-Yasin, Bahadri, Ibrahim, Institute of Imam Sadiq, peace be upon him, Qom, 1424 AH.
* Helli, Allameh, Hasan bin Yusuf bin Mutaher, Various Shi'ites in the Laws of Sharia, Islamic Publications Office, Qom, 1413 AH.
* Helli, Fakhr al-Mohaqqeqin Mohammad bin Hasan bin Youssef, Elucidation of Al-Feeds in the Description of Problems of Al-Qesas, Seyyed Hossein Mousavi Kermani and others, Ismailian Institute, Qom, 1387 AH.
* Hellli, Mohaqqeq, Jafar bin Hasan, Islamic Laws in Halal and Haram Issues, Ismailian Institute, Qom, 1408 AH.
* Khomeini, Seyyed Ruhollah, Sahifa Imam: Collection of works of Imam Khomeini (PBUH), volume 17.
* Khomeini, Seyyed Ruhollah, Kitab al-Ba'i, Imam Khomeini (PBUH) Editing and Publishing Institute, Tehran. 1421 A.H.
* Dehkhoda, Ali Akbar, (1377), Dictionary, Tehran, University of Tehran.
* Rabbani, Mehdi; Rouhani, Abbas Ali, "Reviewing the evidence of the permissibility or sanctity of the production and stockpiling of weapons of mass destruction", Fiqh andOsoul Quarterly, No. 123, 2019.
* Rostami Najafabadi, Hamed et al, "Criminality of action against humanity by means of nuclear weapons from the point of view of jurisprudence", Fiqh and Fundamentals of Islamic Law Quarterly, Vol. 4, 2019.
* Rashideza, Seyyed Mohammad, Tafsir al-Manar, Al-Masriyyah al-Al-Katab, Cairo, 1990.
* Zobeydi, Morteza, Taj al-Arous, Dar al-Fakr, Beirut. 1414 A.H.
* Shahid Sani, Zain al-Din bin Ali, al-Rawda al-Bahiyyah fi Sharh al-Lama' al-Damshaqiyyah (Al-Mahshi - Kalantar). Davari bookstore, Qom, 1410 AH
* Shahid Sani, Zeyn al-Din Bin Ali, Masalik al-Afham to revise the Sharia al-Islam, Al-Maarif al-Islami Foundation, published: First Qom. 1413 A.H.
* Sadr, Seyyed Mohammad, Mawra' al-Fiqh, Jafar Hadi al-Dajili, Beirut, Dar al-Azwa Lalprinta and Al-Nashr and al-Tawzi'ah, 1420 AH.
* Tabatabaei, Seyyed Mohammad Hossein, Al-Mizan fi Tafsir al-Qur'an, Islamic Publications Office, Qom, 1417 AH.
* Tabatabaei, Seyyed Ali bin Mohammad, Riyad al-Masail in the research of al-Ahkam with evidence (T-al-hadith), Mohammad Bahremand et al, Ahl-Al-Bayt institute, print: I, Qom. (1418 AH),
* Tousi, Mohammad bin Hassan, Al-Mabsout fi Fiqh al-Imamiyah, Seyyed Mohammad Taqi Kashfi, Al-Mortazawiyya School for the Revival of Al-Jaafari Antiquities, Tehran, 2007.
* Abd Al-Rahman Shahab, Mahmoud Ibrahim, non-traditional weapons in Islamic jurisprudence, College of Sharia and Law, Islamic University - Gaza, 2007.
* Abdul Majid Mahmoud Al-Salahin, Weapons of Al-Shamel Al-Damar and Rules in Islamic Jurisprudence, Journal of Sharia and Law, No. 23, Jordan, Rabi al-Awwal 1426 AH.
* Abdi, Hassan, Hassan and Mohammad Javad, "Analytical study of the concept of weapons of mass destruction...", Policy Quarterly, No. 3, 2017.
* Iraqi, Aqa Zia al-Din, Commentary on the Commentary of the Scholars, Mohammad Hassoun, Islamic Publications Office, Qom, 1414 AH.
* Alidoust, Abulqasem, jurisprudence of production, accumulation and use of non-conventional weapons with the focus of Imami jurisprudence, Islamic law, volume 10, number 38, autumn 2013.
* Fazel Lankarani Mohammad Javad, "Production and use of weapons of mass destruction from the perspective of Islamic jurisprudence", Islamic Law Quarterly, No. 39, 10, 1392.
* Fazlollah, Ali, Al-Jihad - A recitation of Ayatollah Azami al-Sayyid Mohammad Hossein Fazlollah, volume 2, Beirut-Lebanon, Dar al-Malak, 1418 AH - 1998 AD.
* Koleyni, Mohammad bin Yaqub, Al-Kafi, Ali Akbar Ghafari, Dar al-Katb al-Islamiyya, Tehran, 1407 AH.
* Mohaqqeq Sani, Ali bin Hossein, Jami al-Maqasad fi Sharh al-Qasas, Al-Al-Bayt institute, Qom, 1414 AH.
* Mohaqqeq Damad, Seyyed Mostafa, Jurisprudence, Islamic Sciences Publishing Center, Tehran, 1406 AH.
* Makarem Shirazi, Nasser, Tafsir Nemoune, Dar al-Katb al-Islamiyya, Tehran, 1374.
* Momtaz, Jamshid, International Laws of Weapons of Mass Destruction, translation and research: Amir Hossein Ranjbarian, Dadgostar Publishing House, Tehran, winter 1377.
* Mousaviyan, Seyed Hossein et al., "The Middle East as a region free of weapons of mass destruction: A new perspective", Strategy Quarterly, No. 48, 2007.
* Mosuli al-Hanafi, Imam Abdullah bin Mahmoud bin Maudoud, al-Akhtiyar Latalil al-Mukhtar, suspension and disqualification: Abdollatif Mohammad Abd al-Rahman, Dar al-Kitab al-Alamiya, Beirut, 1419 AH.
* Nawi, Mohi al-Din, Al-Azkar al-Nawaye, Dar al-Fikr Lal-Tabaae wa Al-Nashar and Al-Tawzi’ah, Beirut, 1414 AH.
* Yazdi, Mohammad, Jurisprudence of the Qur'an, Ismailian Institute, Qom, 1415 AH.
* Yasen Abdul Latif, Abdul Halim Mohammad, Al-Islam al-Navi: A comparative study between Islamic jurisprudence and nations’ Laws, Al-Daraiya Magazine, Volume 15, Number 5, 2015.

[[fa:سلاح‌های کشتارجمعی]]
[[ar:أسلحة الدمار الشامل]]
[[Category:Contemporary Jurisprudence Articles]]

Mohammad Mohammadi Ghaeni

2026-09-20T07:38:30Z

Enadmin:

{{Author
|author = Hassan Ejraei
|compiler =
}}
{{infobox person
| reputation =
| name = Mohammad Mohammadi Ghaeni
| birth = 1344 SH (c. 1965 CE)
| demise =
| image = Mohammad Mohammadi Ghaeni.jpg
| image size =
| caption =
| position = Professor of advanced jurisprudence (Kharij) at the Qom seminary
| denomination = Shia Islam
| nationality = Iranian
| speciality = Fiqh (Jurisprudence) and Usul (Principles of Jurisprudence)
| works in contemporary jurisprudence = [[Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah]]
| opinions =
| professors = [[Abu al-Qasim al-Khoei]], [[Jawad Tabrizi]], [[Husayn Ali Montazeri]]
| students =
| website =
}}
'''Mohammad Mohammadi Ghaeni''' (in persian: [[:fa:محمد_محمدی_قائنی|محمد محمدی قائنی]])(born 1344 SH) is a professor of advanced jurisprudence (kharij) and principles of jurisprudence (usul al-fiqh) at the Qom seminary and the author of the book [[Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah]]. He has studied and taught religious and seminary sciences in Najaf and Qom, and his advanced jurisprudence and principles classes are still ongoing. Ghaeni believes that although jurisprudence is maximalist and all voluntary human actions are subject to jurisprudential rulings, the Islamic Sharia has only stated general principles in various fields.

Mohammad Ghaeni, while opposing Maqasidi jurisprudence, believes that if general causative principles ('umumāt ta'līliyyah) are made the basis of jurisprudence, ijtihad will deviate from its correct path. His works, under the general title Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah, on topics such as [[Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah: Al-Masa'il al-Tibbiyyah (Book)|medical issues]], Hajj and Umrah, and issues of transactions, as well as the zakat of modern currencies and new items, have been published in Arabic and Persian by the [[A'immah Athar Jurisprudence Center]].

==Life, Education, and Teaching==
Mohammad Mohammadi Ghaeni was born in 1344 SH in Najaf. He attended the advanced jurisprudence (kharij) class of [[Sayyid Abul-Qasim Khoei|Abu al-Qasim al-Khoei]] and his own father. In 1368 SH, he moved to Qom and pursued advanced jurisprudence in the classes of [[Jawad Tabrizi]] and [[Hossein-Ali Montazeri|Husayn Ali Montazeri]].<ref>["Mohammad Mohammadi Ghaeni"](http://ghayni.andishvaran.ir/fa/ScholarMainpage.html), Andishvaran website; "Fiqh is Maximalist, but...", *Sadra Islamic Humanities Magazine*, p. 55.</ref> He is a faculty member of the [[A'immah Athar Jurisprudence Center]].<ref>"Fiqh is Maximalist, but...", *Sadra Islamic Humanities Magazine*, p. 55.</ref>

According to what is mentioned on the Madrasah Fiqahat website, Mohammad Mohammadi Ghaeni has discussed topics such as judiciary (qada), blood money (diyat), retribution (qisas), and medical rulings in his advanced jurisprudence classes.<ref>See: ["Professor Mohammad Mohammadi Ghaeni"](https://www.eshia.ir/feqh/report/asatid/ghaeeni), Madrasah Fiqahat website.</ref> His advanced principles of jurisprudence (usul al-fiqh) class has also been held in the Qom seminary since 1385 SH and is still ongoing.<ref>See: [http://www.qaeninajafi.ir/ Mohammad Mohammadi Ghaeni's website].</ref>

He is a member of the editorial board of the specialized academic journal [[Fiqh and Ijtihad Bi-annual Journal|Fiqh and Ijtihad]], affiliated with the [[A'immah Athar Jurisprudence Center|A'immah Athar Jurisprudence Center]],<ref>["Editorial Board Members"](http://mags.markazfeqhi.com/journal/editorial.board), Fiqh and Ijtihad Magazine website.</ref> and a member of the editorial board of the [[Religion and Law Quarterly]], affiliated with the Islamic Research Center of the Islamic Consultative Assembly.<ref>["Complete Report Information"](http://cmirq.ir/fa/report/show/1662), Islamic Research Center of the Islamic Consultative Assembly website.</ref>

==Views and Opinions==

===Maximalist Fiqh but Without Detailed Models===
According to Ghaeni, although all voluntary human actions are subject to jurisprudential rulings, and therefore jurisprudence is maximalist, nevertheless, the Islamic Sharia has only stated general principles in various fields and, based on this, has left the provision of models to the wise ('uqala).<ref>"Fiqh is Maximalist, but...", *Sadra Islamic Humanities Magazine*, p. 55.</ref>

===Opposition to Maqasidi Jurisprudence===
Mohammad Ghaeni considers [[Maqasidi jurisprudence]] to be ijtihad in opposition to the text (nass) and believes that if general causative principles are made the basis of jurisprudence, a new jurisprudence will be established, and ijtihad will deviate from its correct path. In his view, by changing the Sharia according to the social situation and based on Maqasidi jurisprudence, a new jurisprudence and Sharia will gradually be established, and nothing but signs of religion will remain.<ref>["Critical Dialogue of Thinkers on the Place of Administrative Rulings..."](http://ijtihadnet.ir/گفتگوی-نقادانه-اندیشمندان-درباره-جای/), Ijtihad Network website.</ref>

===The Principle in Rulings is Their Binding Nature (Mawlawi)===
Ghaeni believes that the principle regarding the rulings mentioned in the narrations is that they are binding (mawlawi), not administrative (tad biri) or governmental. This is because the Imams, in response to people's questions, issued general propositions and asked people to write down the narrations so they could reach others. However, he accepts the administrative nature of narrations if there are contexts and evidence to support it.<ref>["Critical Dialogue of Thinkers on the Place of Administrative Rulings..."](http://ijtihadnet.ir/گفتگوی-نقادانه-اندیشمندان-درباره-جای/), Ijtihad Network website.</ref> Ghaeni holds that the Prophet's administrative rulings are authoritative for all times; because even the Prophet's governmental rulings (ahkam wilai) would be effective for the entire community, both his contemporaries and later generations. He substantiates this view with a narration from Imam al-Sadiq (a) regarding the Prophet's (s) governmental ruling on zakat.<ref>["Critical Dialogue of Thinkers on the Place of Administrative Rulings..."](http://ijtihadnet.ir/گفتگوی-نقادانه-اندیشمندان-درباره-جای/), Ijtihad Network website.</ref>

==Works and Writings==
*Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah is the general title of books by Mohammad Mohammadi Ghaeni published based on the independent topics of his advanced jurisprudence classes, containing contemporary issues of jurisprudence. These include [[Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah: Al-Masa'il al-Tibbiyyah (Book)|Al-Masa'il al-Tibbiyyah]] in two volumes, Al-Hajj wa al-'Umrah in two volumes, and Masa'il al-Mu'amalat. Among these, some volumes of the said work have also been translated into Persian or were originally written in Persian; including A Study in Medical Jurisprudence Issues and also Zakat on Modern Currencies and New Items.<ref>["List of Books by Mohammad Mohammadi Ghaeni"](https://db.ketab.ir/BookList.aspx?Type=Authorid&Code=146423), Khaneye Ketab website.</ref>

In the 20th Seminary Book of the Year award ceremony in 1397 SH, the book Al-Mabsut fi Fiqh al-Masa'il al-Mu'asirah, written by Mohammad Mohammadi Ghaeni, received an honorable mention in the Fiqh and Usul category.<ref>["Honoring the Best of the Seminary Book of the Year"](http://www.ibna.ir/fa/tolidi/271097/), Iran's Book News Agency.</ref>

==Footnotes==
{{footnotes}}
==References==
{{References}}
* "Professor Mohammad Mohammadi Ghaeni," Madrasah Fiqahat website, published: July 11, 2021, accessed: July 27, 2021.
* "Complete Report Information," Islamic Research Center of the Islamic Consultative Assembly website, accessed: August 1, 2021.
* "Honoring the Best of the Seminary Book of the Year," Iran's Book News Agency, published: January 24, 2019, accessed: July 27, 2021.
* "Fiqh is Maximalist, but it Does Not Propose a Specific Model Everywhere," *Sadra Islamic Humanities Magazine*, an interview with Mohammad Mohammadi Ghaeni, no. 14, Summer 2015.
* "List of Books by Mohammad Ghaeni," Khaneye Ketab website, accessed: August 1, 2021.
* "Mohammad Mohammadi Ghaeni," Andishvaran website, accessed: August 1, 2021.
{{end}}

==External Links==
* [http://www.qaeninajafi.ir Mohammad Mohammadi Ghaeni's website].
* [http://fahimco.com/Post/Details/3083/ Lecture by Mohammad Mohammadi Ghaeni on the differences between the jurisprudential schools of Najaf and Qom: Ayatollah Boroujerdi and Ayatollah Khoei].

[[Category:Articles by Hassan Ejraei]]
[[Category:Biographical Articles]]
[[fa:محمد محمدی قائنی]]
[[ar:محمد محمدي قائيني]]
[[Category:Contemporary Jurisprudence Articles]]

Dimensions of Child Labor from the Perspective of Law and Jurisprudence (Book)

2026-09-20T07:38:04Z

Enadmin:

{{Author
|author = Hadi Sadeghi
|author2 =
|author3 =
|compiler =
|editor1 =
|editor2 =
|editor3 =
}}
{{infobox book
| title = Dimensions of Child Labor from the Perspective of Law and Jurisprudence (Book)
| image = Dimensions of Child Labor from the Perspective of Law and Jurisprudence (Book).jpg
| size image =
| caption =
| other names =
| author = Mohammad Hossein Shahbazi and Fatemeh Abbasian Arani
| date of writing =
| subject = Family Jurisprudence
| style = Analytical
| language = Persian
| editor =
| textual editing =
| with the efforts of =
| collection =
| illustrator =
| cover designer =
| volumes = 1
| pages = 130
| size =
| translations =
| publisher = Jadouye Qalam
| publication place = Tehran
| publication date = 1402 AH
| printing = First
| print run =
| isbn =
| media type =
| publisher website =
| english name = 
| translator = 
| publication details = 
| electronic version =
| other volumes =
}}

* '''Abstract'''
'''Dimensions of Child Labor from the Perspective of Law and Jurisprudence''' (in Persian: [[:fa:ابعاد_کار_کودک_از_منظر_قانون_و_فقه_(کتاب)|ابعاد کار کودک از منظر قانون و فقه]]) is a book in the field of family jurisprudence, co-authored by Mohammad Hossein Shahbazi and Fatemeh Abbasian Arani. In this work, the authors distinguish between the two concepts of "child labor" and "child worker" and examine them from legal and jurisprudential perspectives. They consider beneficial and educational child labor, performed with regard to the child's best interest, permissible under specific conditions and with the supervision of the guardian; however, they regard economic exploitation of the child (child worker) as an instance of public corruption and illegitimate. The role of the government and family in the formation of this phenomenon and its social consequences are other topics discussed in the book.

== Book Structure ==
Dimensions of Child Labor from the Perspective of Law and Jurisprudence, co-authored by Mohammad Hossein Shahbazi and Fatemeh Abbasian Arani, is in the field of family jurisprudence. The authors in this work examine two different but related categories, namely "child labor" and "child worker," from legal and jurisprudential viewpoints. The research method in this book is descriptive-analytical and based on the study of library sources. This work has been published in 130 pages by Jadouye Qalam Publications in 1402 AH.

This work begins with an introduction by the authors and a table of contents, and ends with a conclusion and a list of references. The main discussions of the book are organized into three chapters. The first chapter is dedicated to generalities and fundamental concepts. In the second chapter, the authors analyze the negative and positive dimensions of child labor from the perspectives of jurisprudence and law and attempt to clarify the difference between legitimate child employment and economic exploitation of the child. The third chapter is also devoted to examining the role of the government and family in the formation of the child worker phenomenon and its social consequences.

== Difference Between Child Labor and Child Work ==
The authors in the first chapter of the book examine the concept of "child" in jurisprudence and law. According to them, although in jurisprudence, a child refers to an immature individual, Iranian laws suffer from a kind of ambiguity and inconsistency in defining a child; in such a way that in some legal articles, the age of 18 is considered, and in others, religious maturity is the criterion for the end of childhood. In addition, in some laws, the age of 15 is regarded as the boundary of childhood, while others have set 13 for girls and 15 for boys as the criterion. These inconsistencies are even seen in whether the years are solar or lunar. Moreover, there are differences in this regard between criminal and civil domains (pp. 17-22).

Continuing, the authors address the Islamic jurisprudential view on child employment and report that the work of a child (minor) can be valid under specific conditions. From a religious perspective, child employment is defined within the framework of the duties of the compulsory guardian. If the compulsory guardian observes all the interests and rights of the child and also considers their physical and mental abilities, they can compel the child to engage in suitable occupations for education and vocational training. In some cases, especially when the guardian is unable to pay maintenance and their insolvency is proven, child employment for the purpose of earning income is considered permissible. According to the authors, this type of employment differs from the harmful concept of "child worker"; because it is not only non-exploitative but can also be in the child's favor and for their growth (p. 26).

Finally, the authors emphasize that the child's consent has no effect on the legitimacy or illegitimacy of economic exploitation of them, because from a jurisprudential viewpoint, the child lacks the ability to discern their own benefit and harm (p. 28).

== Impermissibility of Child Work ==
The authors in the second chapter examine in detail the negative dimensions of child labor from a legal perspective. They, by referring to a set of domestic and international laws, consider the child worker phenomenon prohibited in the legal dimension, showing that child labor is not acceptable within the accepted legal framework (pp. 36-69).

Continuing, with attention to the issue of custody, the authors emphasize that the compulsory guardian has no right to employ the child as a child worker or exploit them. From jurisprudential and legal perspectives, the principle is the financial provision of the child by the guardian, and any deviation from this duty, if it leads to physical, psychological, or developmental harm to the child, is considered a violation of the guardian's religious duty and an act lacking religious legitimacy (p. 70).

The authors regard the child worker phenomenon as one of the manifestations of public corruption; therefore, they believe that the Islamic government must combat this corruption by enacting appropriate and effective laws. They, by referring to the views of some jurists who consider the basis of the legitimacy of hudud and ta'zirat to be the prevention of corruption, suggest that proportionate ta'zirat be considered for combating various levels of the child worker phenomenon (pp. 70-71).

== Conditionality of the Permissibility of Child Labor on the Child's Best Interest ==
The authors in the continuation of the second chapter have examined the positive dimensions of child labor from a legal perspective. In their view, if the child's activity is compatible with their best interest, work can be used as a tool for empowering children and adolescents and nurturing their talents, and provided that the type of activity is proportionate to the child's physical and mental abilities, employment in various occupations is considered permissible (pp. 71-74).

On this basis, the authors believe that the compulsory guardian can also, while observing the child's best interest, compel them to employment and even income generation, provided that the chosen work is appropriate to the child's age and does not cause harm to them (p. 76). In their view, according to the opinion of the majority of jurists, the payment of maintenance to the child by the guardian is obligatory only if the child is poor and lacks the ability to employ and earn income (p. 77). They, by critiquing the view of the author of Riyad who does not consider compelling child employment permissible even if the child is capable of business, believe that a father who has guardianship over the marriage of a minor girl, a fortiori, has guardianship over compelling the child to employment compatible with their best interest and upbringing (p. 78).

At the end of the second chapter, the authors emphasize the positive and beneficial inherent nature of work. They consider work, as long as it does not conflict with the child's best interest, a good and positive matter and call it one of the positive aspects of child labor. In this regard, they also refer to a number of narrations from the Ahl al-Bayt (AS) that indicate the desirability and value of work in the religious view (pp. 82-84). In the third chapter, the role of the government and family in the formation of the child worker phenomenon is examined, and its social and individual consequences are analyzed, and the role of supportive and legislative structures in preventing or facilitating this phenomenon is discussed (pp. 86-113).

[[fa:ابعاد کار کودک از منظر قانون و فقه (کتاب)]]
[[ar:أبعاد كار كودك از منظر قانون وفقه (كتاب)]]
[[Category:Books by Mohammad Hossein Shahbazi]]
[[Category:Books by Fatemeh Abbasian Arani]]
[[Category:Bibliography Articles]]
[[Category:Books on Family Jurisprudence in Persian]]

Hukumat-e Islami quarterly journal

2026-09-20T07:37:20Z

Enadmin:

{{Infobox book
| name = Hukumat-e Eslami Journal
| title = Islamic Government Quarterly Journal
| image = Hukumat-e Islami quarterly journal.jpg
| size image = 250px
| caption =
| owner = Secretariat of the Assembly of Experts for Leadership
| editor-in-chief = Seyyed Ebrahim Raisi
| managing_editor = Seyyed Hashem Hosseini Bushehri
| academic_discipline = Islamic Political Jurisprudence, Governance
| discipline =
| language = Persian
| publication_frequency = Quarterly
| publisher = Research Center for Islamic Thought and Politics (RCIPT)
| location = Qom, Iran
| country = Iran
| history = First published in 1996
| open_access = Yes
| website = https://mag.rcipt.ir/
| issn =
| eissn =
| oclc =
}}

{{Author
|author = Alireza Salehi
|author2 =
|author3 =
|compiler =
|editor1 =
|editor2 =
|editor3 =
}}

* '''abstract'''
'''Hukumat-e Islami quarterly journal''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%81%D8%B5%D9%84%D9%86%D8%A7%D9%85%D9%87_%D8%AD%DA%A9%D9%88%D9%85%D8%AA_%D8%A7%D8%B3%D9%84%D8%A7%D9%85%DB%8C فصلنامه حکومت اسلامی]) is a scholarly-research journal in the field of [[political jurisprudence]], published under the ownership of the Secretariat of Iran’s [[Assembly of Experts]]. This journal has been published since 1996 (1375 Solar Hijri) to cover the researches of experts in Islamic political thought, with 100 issues published until 2021 (1400 Solar Hijri). The goals of this journal are to elucidate the concept of political sovereignty in Islam and to provide a platform for scholarly discussions in the realm of religious politics.
The articles published in this journal on topics such as [[political jurisprudence]] and constitutional law have been referenced in jurisprudential research studies related to [[contemporary jurisprudence]]. Prominent authors such as [[Sayyid Kazim al-Haeri|Sayyid Kāẓim Ḥā’irī]], [[Mehdi Haeri Yazdi|Mahdī Ḥā’irī Yazdī]], [[Davud Feirahi|Dāvūd Fayarḥī]], [[Abdullah Javadi Amoli|‘Abdullāh Javādī Āmulī]] and [[Abdul-Karim Mousavi Ardebili|‘Abdulkarīm Mūsavī Ardibīlī]] have contributed to this journal. Notable articles published in this journal include: Shāyistigī-yi Zanān barāyi Qiḍāvat va Manāṣib-i Rasmī (the competence of women for judgeship and official positions) authored by [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma‘rifat]], I‘tibār-i Ra’y-i Aktharīyyat ([[majority vote|validity of the majority vote]]) authored by Kāẓim Qāḍīzādi and Irtidād Nigāhī Dūbāri, Taqrīrī az Mabāḥith-i Āyatullāh Mūsavī Ardibīlī ([[apostasy]] revisited, an explanation of Ayatollah Mūsavī Ardibīlī’s discussions) authored by Sayyid Jawād Varāʿī.

==Introduction==
Ḥukūmat-e Islāmī is a quarterly journal, owned by the secretariat of Iran’s [[Assembly of Experts]] of Leaderships<ref>Main Page of the Ḥukūmat-e Islāmī quarterly website</ref>. Following the establishment of the scientific research center for Islamic governance by the secretariat of the [[Assembly of Experts]]<ref>Website of the Ḥukūmat-e Islāmī Scientific Research Center</ref>, publication of the Ḥukūmat-e Islāmī journal began in 1996 (1375 SH) in order to cover the researches of experts in Islamic [[political jurisprudence]] and thought<ref>Index of the Ḥukūmat-e Islāmī scientific-research quarterly, issues No. 1 to 79, pp. 7-8</ref>.
Ḥukūmat-e Islāmī quarterly is published with aims such as explaining Islam’s political thinking, introducing [[political jurisprudence]], elucidating the concept of political sovereignty based on the [[guardianship of the jurist]] (Vilāyat al-Faqīh), providing a platform for scientific discussions on religious politics and addressing Muslims’ political history<ref>Ahdāf va Chashm-andāz (goals and vision), website of the Ḥukūmat-e Islāmī quarterly</ref>.
By the year 2021 (1400 SH), 100 issues of this journal had been published<ref>Main page of the journal</ref>. In addition to its regular issues, this journal has also published special issues. Titles of some of these special issues are as follows: Ḥukūmat-i ‘Alavī bi Munāsibat-i Sāl-i Amīr al-Mu’minīn (the Alavi government, on the occasion of the year of the commander of the faithful), Andīshi-yi Sīyāsī-yi ‘Āshūrā (the political thought of [[Ashura|‘Āshūrā]]), Andīshi-yi Sīyāsī-yi Shahīd Muṭahharī ([[Murtada Mutahhari|Murtiḍā Muṭahharī]]’s political thinking), Majlis-i Khubrigān-i Rahbarī; Jaygāh, Mabānī va ‘Amalkardhā (the assembly of experts for leadership; position, foundations, and performances), Sanad-i Chishm-andāz-i Bīst Sāli-yi Jumhūrī-yi Islāmī-yi Īrān (the twenty year vision document of the Islamic Republic of Iran) and etc.<ref>Index of the Ḥukūmat-e Islāmī scientific-research quarterly, issues No. 1 to 79, p 9</ref>.
Ḥukūmat-e Islāmī quarterly journal was selected as the top journal in the field of political science by the first Islamic Press Festival in 1382 SH (2003-2004 AD). Additionally, some of its special issues, such as Ḥukūmat-i ‘Alavī (the Alavi government) and Andīshi-yi Sīyāsī-yi ‘Āshūrā (the political thought of Ashura), were awarded first place in the Vilāyat Book of the Year conference<ref>Website of the Ḥukūmat-e Islāmī Scientific Research Center</ref>.

==Position and influence on contemporary jurisprudence==
Because of covering researches of experts and thinkers in areas such as [[political jurisprudence]] and constitutional law, the Ḥukūmat-e Islāmī quarterly has a special position and influence in studies on issues of [[contemporary jurisprudence]] and the articles published in this journal have turned into sources of reference. For instance, in the area of women’s issues and their competence or incompetence for judgeship and holding political positions, the articles by [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma‘rifat]] and Mahdi Mihrīzī, published in issue number four of this journal, have been cited in some researches on women’s issues<ref>Madkhalī bar Ravish-i Shinākht-i Fiqhī-yi Ishtighāl-i Zanān dar Nīrū-yi Intiẓāmī (an introduction to the method of jurisprudential understanding of women’s employment in the police force), NAJA Scientific Quarterly of Strategic Studies; Barrisī-yi Adillih-yi Fiqhī-yi Mukhālifān-i Vilāyat-i Siyāsī-yi Zanān dar Fiqh-i Shī‘i (examination of the jurisprudential reasons provided by opponents of women’s political guardianship in Shia jurisprudence), Journal of Islamic Law & Jurisprudence Researches; Māhīyyat-i Namāyandigī-yi Majlis dar Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Īrān (the nature of membership in the parliament in the Constitutional law of the Islamic Republic of Iran), Ḥukūmat-e Islāmī quarterly</ref>.

==Well-known authors==
Numerous experts and thinkers have contributed to the journal of Ḥukūmat al-Islāmī, some of whom are as follows:<ref>Index of the Ḥukūmat-e Islāmī scientific-research quarterly, issues No. 1 to 79, pp. 75-134</ref>
* [[Mohsen Araki|Muḥsin Arākī]]
* Mohammad-Javād Arasṭā
* Bahrām Akhvān Kāẓimī
* [[Reza Ostadi|Riḍā Ustādī]]
* [[Mohsen Esmaeili|Muḥsin Ismā‘īlī]]
* [[Ibrahim Amini|Ibrāhīm Amīnī Najafābādī]]
* [[Sajjad Izadi|Sayyid Sajjād Īzdihī]]
* [[Sadiq Haghighat|Sayyid Ṣādiq Ḥaqīqat]]
* [[Mohammad Baqir al-Hakim|Sayyid Mohammad-Bāqir Ḥakīm]]
* Ḥusayn Javān Ārāstih
* [[Rasul Jafariyan|Rasūl Ja‘farīyān]]
* [[Abdullah Javadi Amoli|‘Abdullāh Javādī Āmulī]]
* [[Sayyid Kazim al-Haeri|Sayyid Kāẓim Ḥā’irī]]
* [[Mehdi Haeri Yazdi|Mahdī Ḥā’irī Yazdī]]
* [[Ja'far Sobhani|Ja‘far Subḥānī]]
* [[Mohammad Sorush Mahallati|Mohammad Surūsh Maḥallātī]]
* [[Abulqasim Alidust|Abulqāsim ‘Alīdūst]]
* [[Abbas-Ali Amid Zanjani|‘Abbās-Ali ‘Amīd Zanjānī]]
* [[Mohammad Hussein Fadlallah|Sayyid Mohammad Ḥusayn Faḍlullāh]]
* [[Davud Feirahi|Dāvūd Fayarḥī]]
* Kāẓim Qāḍīzādih
* [[Sadiq Larijani|Ṣādiq Āmulī Lārījānī]]
* [[Abulqasim Gorji|Abulqāsim Gurjī]]
* [[Najaf Lakzaee|Najaf Lakzā’ī]]
* [[Ahmad Moballeghi|Aḥmad Muballighī]]
* Javād Muḥaddithī
* [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍavī]]
* [[Mohammad-Taqi Mesbah-Yazdi|Mohammad-Taqī Miṣbāḥ Yazdī]]
* [[Hossein Mazaheri|Ḥusayn Maẓāhirī]]
* [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma‘rifat]]
* [[Abdul-Karim Mousavi Ardebili|‘Abdulkarīm Mūsawī Ardibīlī]]
* [[Mahdi Mehrizi|Mahdī Mihrīzī]]
* [[Mohammad Momen|Mohammad Mu’min]]
* [[Sayyid Javad Varai|Sayyid Javād Varā‘ī]]
* [[Akbar Hashemi Rafsanjani|Akbar Hāshimī Rafsanjānī]]

==Topics and some important articles==
According to a study conducted on articles published in issues one to 79 of the Ḥukūmat-e Islāmī quarterly, several general themes have been extracted from the indexing of these articles. These themes include political philosophy, political thought, general political issues, [[political jurisprudence]], [[guardianship of the jurist]] (Vilāyat-i Faqīh), constitutional law, the history of political thought, and political thinkers and figures<ref>Ibid, Issues No. 1 to 79</ref>.
Some important jurisprudential articles of this journal over the course of its publication include:<ref>Ibid</ref>
* Shāyistigī-yi Zanān barā-yi Qiḍāvat va Manāṣib-i Rasmi (The Eligibility of Women for Judgeship and Official Positions), by [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma’rifat]]
* I‘tibār-i Ra’y-i Aktharīyyat (The Validity of the Majority Vote), by Kāẓim Qāḍīzādih
* Irtidād: Nigāhī Dubārih, Taqrīrī az Mabāḥith-i Ayatollah Mūsavī Ardibīlī (Apostasy: A Reexamination, Based on the Discussions of Ayatollah Mūsavī Ardibīlī), by [[Sayyid Javad Varai|Sayyid Javād Vara‘ī]]
* Ḥaqq va Taklīf, Baḥthī az Ayatollah Javādī Āmulī (Right and Duty, A Discussion by Ayatollah Javādī Āmulī), by ‘Abbās Pasandīdih
* Iqāmi-yi Jum‘i dar Dulat-i Islāmī (The Establishment of Friday Prayer in the Islamic Government), by [[Mohammad Sorush Mahallati|Mohammad Surūsh Maḥallātī]]
* Siyrī dar Mabānī-yi Vilāyat-i Faqīh (A Review of the Foundations of the Guardianship of the Jurist), by [[Abdullah Javadi Amoli|‘Abdullāh Javādī Āmulī]]
* Mabādī-yi Vilāyat-i Faqīh (The Basic Principles of the Guardianship of the Jurist), by [[Mohammad Momen|Mohammad Mu’min]]
* Dulat-i Dīnī va Ḥarīm-i Khuṣūṣī (The Religious Government and the Privacy), by [[Mahdi Mehrizi|Mahdī Mihrīzī]]
* Qānūn-i Asāsī, Mas’ūlīyyat-i Ijrā va Tafkīk-i Quvā (The Constitution, Executive Responsibility and the Separation of Powers), by [[Abbas-Ali Amid Zanjani|‘Abbās-Ali ‘Amīd Zanjānī]], Hossein Mihrpūr, Sayyid Mohammad Hāshimī
* Māhīyyat va Ḥukm-i Shirkat dar Intikhābāt az Manẓar-i Fiqh-i Siyāsī-yi Islām (The Nature and Ruling on Participation in Elections from the Perspective of Islam’s Political Jurisprudence), by Muḥsin Malik Afḍalī Ardakānī
* Māhīyyat-i Niẓārat-i Shurā-yi Nigahbān bar Intikhābāt (The Nature of the Guardian Council’s Supervision over Elections), by Ibrāhīm Mūsāzādih
* Mahār-i Darūnī-yi Qudrat-i Rahbarī dar Ḥuqūq-i Asāsī (Internal Restraint of the Leader’s Power in Constitutional Law), by Mohammad Javād Arasṭā
* Vilāyat-i Faqīh dar Andīshih-yi Fiqhī-Siyāsī-yi Nā’īnī (The Guardianship of the Jurist in [[Mohammad Hossein Naini|Nāʾīnī]]’s Political-Jurisprudential Opinion), by [[Sayyid Javad Varai|Sayyid Javād Varā‘ī]]
* Sharṭ-i A‘lamīyyat dar Rahbarī (The Condition of Having Superior Knowledge for Leadership) , by [[Sayyid Kazim al-Haeri|Sayyid Kāẓim Ḥā’irī]]
* Mabānī-yi Fiqhī va Uṣūlī-yi Majma‘-i Tashkhīṣ-i Maṣlaḥat-i Niẓām (The Jurisprudential and Principal Foundations of the Expediency Discernment Council), by Mohammad Raḥmānī
* Bāztāb-i ‘Āshūrā dar Fiqh-i Siyāsī-yi Shī‘i (The Reflection of Ashura in Shia Political Jurisprudence), by [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍavī]]
* Mabānī-yi Dīnī-yi Mushārikat-i Siyāsī (The Religious Foundations of Political Participation), by Mohammad Manṣūrnižād

==Footnotes==
<references />

==References==
# Website of the Ḥukūmat-e Islāmī quarterly
# Index of the Ḥukūmat-e Islāmī scientific-research quarterly, issues No. 1 to 79
# Website of the Ḥukūmat-e Islāmī Scientific Research Center
# ‘Itratdūst, Mohammad, Vazīrīfard, Sayyid Mohammad Javād, Barrisī-yi Adilli-yi Fiqhī-yi Mukhālifān-i Vilāyat-i Siyāsī-yi Zanān dar Fiqh-i Shī‘i (examination of the jurisprudential reasons provided by opponents of women’s political guardianship in Shia jurisprudence), Journal of Islamic Law & Jurisprudence Researches, No. 33, 1392 SH/2013-2014 AD
# Farzīnrād, Ruyā, ‘Itratdūst Mohammad, Madkhalī bar Ravish-i Shinākht-i Fiqhī-yi Ishtighāl-i Zanān dar Nīrū-yi Intiẓāmī (an introduction to the method of jurisprudential understanding of women’s employment in the police force), NAJA Scientific Quarterly of Strategic Studies, No. 13, 1398 SH/2019-2020 AD
# Ka‘bī, ‘Abbās, Ḥakīmī, Sajjād, Māhīyat-i Namāyandigī-yi Majlis dar Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Īrān (the nature of membership in the parliament in the Constitutional law of the Islamic Republic of Iran), Ḥukūmat-e Islāmī quarterly, No. 73, 1393 SH/2014-2015 AD

[[fa:فصلنامه حکومت اسلامی]]
[[ar:فصلية حكومت إسلامي]]
[[Category:Articles by Alireza Salehi]]
[[Category:Persian-language Journals on Political Jurisprudence]]

Fiqh Quarterly Journal

2026-09-20T07:36:56Z

Enadmin:

{{Author
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* '''abstract'''
'''The Fiqh (jurisprudence) Quarterly''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%81%D8%B5%D9%84%D9%86%D8%A7%D9%85%D9%87_%D9%81%D9%82%D9%87 فصلنامه فقه]) is a scientific-research journal on new jurisprudential issues, owned by the [[Islamic Sciences and Culture Academy]]. This journal has been published to enhance the capabilities of jurisprudence for entering the governmental and social spheres of the contemporary era. The Fiqh quarterly holds significance and a prominent position in [[contemporary jurisprudence]] due to its focus on emerging issues and topics such as governmental rulings, [[legal personality]], modern medical rulings ([[medical jurisprudence]]), the role of custom in jurisprudence, rulings on [[hijab]] (whether it is mandated or not), the [[majority vote|majority opinion]], and etc.
Contributors to this journal include [[Mohammad-Ebrahim Jannati Shahroudi]], [[Abulqasim Alidust|Abulqāsim Ali-Dūst]], [[Sayyid Mohammad-Ali Ayazi|Sayyid Mohammad-Ali Āyāzī]], [[Mohammad-Mahdi Asifi|Mohammad-Mahdī Āṣifī]], [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍavī]], [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma‘rifat]] and [[Sayyid Abbas Musaviyan|Sayyid ‘Abbās Mūsavīyān]]. Naqd va Barrisī-yi Adilli-yi Fiqhī-yi Ilzām-i Ḥukūmatī-yi Ḥijāb (critique and analysis of jurisprudential reasons for the governmental enforcement of hijab), Niẓārat bar Qudrat dar Fiqh (oversight of power in jurisprudence), Chālishhā-yi Ijtimā‘ī va ‘Ilmī-yi Shabīhsāzī-yi Insān (social and scientific challenges of [[human cloning]]), Barrisī-yi Manābi‘-i Fiqhī-yi Rajm (Sangsār) Thubūtan va Ithbātan (examination of jurisprudential sources of [[stoning]] in terms of affirmation and proof), Ḥujjīyyat-i Dhātī-yi Banāhā-yi ‘Uqalā’ī va Ta’thīr-i ān dar Fiqh va Uṣūl (the inherent validity of rational constructs and their impact on jurisprudence and its principles), and I‘tibār-i Ra’y-i Aktharīyyat dar Partu-i Kitāb va Sunnat (the validity of the [[majority vote]] in light of the Quran and Sunnah) are among the important articles of this journal.

==Introduction==
The Fiqh Quarterly is a scholarly-research journal published under the ownership of the [[Islamic Sciences and Culture Academy]], affiliated with the Islamic Preaching Office of the [[Qom Seminary]]<ref>Main page of the Fiqh Quarterly</ref>. From its inception in 1373 SH (1994-1995) until issue number 93, it was published under the title Kāvushī Nu dar Fiqh (a new exploration in jurisprudence); however, since 1397 SH (2018-2019), it has been published under the new name of Fiqh Quarterly<ref>No. 94, website of the Fiqh Quarterly</ref>. In 1394 SH (2015-2016), based on a resolution by the Council for Granting Scientific Licenses and Rankings, this journal was awarded an academic-research ranking, which applies to issue number 75 and subsequent issues, that is from Spring 2013 onwards<ref>About the journal, website of the Fiqh Quarterly</ref>.
The Fiqh Quarterly was established by a few authors of the [[Hawzah journal]]. According to these authors, due to the limitations in the pages of the [[Hawzah journal]] and, on the other hand, the vastness of emerging jurisprudential issues, there was the need for a new space for jurisprudential research. For this reason, initially the Fiqh book and later the Kāvushī Nu dar Fiqh quarterly were introduced with the aim of transforming school-based jurisprudence into society-oriented jurisprudence<ref>Fiqh and reflections, website of the Fiqh Quarterly</ref>.
This journal is published with the aim of safeguarding the scholarly jurisprudential frameworks of the system of the [[Islamic Republic of Iran]], providing reasoned responses to minor, major, and widespread jurisprudential issues in the Islamic society, and enhancing the capability of jurisprudence to engage in the governmental and social spheres of the present era<ref>Goals and perspective, website of the Fiqh Quarterly</ref>.

==Position and influence in contemporary jurisprudence==
Because of covering various topics and issues related to [[contemporary jurisprudence]] such as governmental rulings, medical rulings, rulings on trade in the modern era, rulings on issues of women and family and etc., the Fiqh Quarterly has a special position and influence in [[contemporary jurisprudence]]. Another reason for the importance of this journal in [[contemporary jurisprudence]] is that its articles are authored by renowned jurists, thinkers and experts in the field of [[contemporary jurisprudence]]. Additionally, the fact that the articles of this journal serve as authoritative and reliable references in researches related to [[contemporary jurisprudence]] can be considered another reason for its significance in this field.

==Well-known authors==
Numerous experts and thinkers have contributed to the Fiqh Quarterly, some of the most prominent among whom are:<ref>Index based on names of authors, website of the Fiqh Quarterly</ref>
* [[Sayyid Mohammad-Ali Ayazi|Sayyid Mohammad-Ali Ayāzī]]
* [[Mohammad-Mahdi Asifi|Mohammad-Mahdī Āṣifī]]
* ‘Abd al-Riḍā Īzadpanāh
* [[Sajjad Izadi|Sayyid Sajjād Īzdihī]]
* [[Sayyid Hasan Islami Ardakani|Sayyid Hasan Islāmī]]
* [[Mohammad-Ebrahim Jannati Shahroudi]]
* Hasan Javāhirī
* [[Alireza Arafi|Ali-Riḍā A‘rāfī]]
* [[Abd al-Hossein Khosropanah|‘Abd al-Hossein Khusrupanāh]]
* Mohammad-Taqī Akbarnizhād
* [[Masoud Emami|Mas‘ūd Imāmī]]
* Sa‘īd Ḍiyā’īfar
* [[Nematollah Salehi Najafabadi|Ni‘matullāh Ṣāliḥī Najafābādī]]
* Ahmad ‘Ābidī
* [[Ahmad Abedini|Ahmad ‘Ābidīnī]]
* Sayfullāh Ṣarāmī
* Mohammad-Ali Qāsimī
* Kāẓim Qāḍīzādih
* [[Najaf Lakzaee|Najaf Lakzā’ī]]
* [[Ahmad Moballeghi|Ahmad Moballighī]]
* [[Abulqasim Alidust|Abulqāsim Ali-Dūst]]
* [[Sayyid Javad Varai|Sayyid Javād Vara‘ī]]
* Raḥīm Nūbahār
* [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍavī]]
* [[Mohammad-Hadi Ma'rifat|Mohammad-Hādī Ma‘rifat]]
* [[Sayyid Abbas Musaviyan|Sayyid ‘Abbās Mūsavīān]]
* [[Mohammad Momen|Mohammad Mū’min]]

==Topics and some important articles==
===Topics===
The important topics addressed by the Fiqh Quarterly are as follows:<ref>Index of key terms, website of the Fiqh Quarterly</ref>
* Seeing the crescent with armed eyes
* Mandating [[hijab]]
* [[Majority vote]]
* Rulings on banking
* [[Islamic economics]]
* Freedom of thought and freedom of belief
* Implementation of [[hudud]] (prescribed penalties) during the [[The Occultation|Occultation]]
* Validity of new constructs of intellectuals
* Governmental law
* Governmental jurisprudence
* [[Political jurisprudence]]
* Rulings on issues of women and family ([[family law]])
* Powers of the Islamic ruler
* Rulings on modern contracts and trade
* [[Apostasy]]
* [[Consultative Ijtihad]]
* Spying
* Invasion of privacy
* Protecting the political system
* [[Human rights]]
* [[Legal personality]]
* [[Medical jurisprudence]]
* The role of custom in jurisprudence
* [[Islamic penal code]]
* Rulings on retribution ([[qisas|qiṣāṣ]])
* Rulings on judgment
* Rulings on endowments ([[Waqf]])
* [[Vilayat al-Faqih]] (guardianship of the jurist)
* [[Maqasid al-Shari'a|Objectives of the Islamic law (Maqāṣid al-Sharī‘ah)]]

===Important articles===
Some of the important articles of the Fiqh Quarterly, relevant to issues of [[contemporary jurisprudence]], have been mentioned below:<ref>Index of authors, website of the Fiqh Quarterly</ref>
* Naqd va Barrisī-yi Adilli-yi Fiqhī-yi Ilzām-i Ḥukūmatī-yi Ḥijāb (critique and analysis of the jurisprudential reasons for the governmental enforcement of hijab), by [[Sayyid Mohammad-Ali Ayazi|Sayyid Mohammad-Ali Ayāzī]]
* Niẓārat bar Qudrat dar Fiqh (oversight of power in jurisprudence), by [[Sajjad Izadi|Sayyid Sajjād Īzdihī]]
* Chālishhā-yi Ijtimā‘ī va ‘Ilmī-yi Shabīhsāzī-yi Insān (social and scientific challenges of human cloning), by [[Sayyid Hasan Islami Ardakani|Sayyid Hasan Islāmī]]
* Barrisī-yi Manābi‘-i Fiqhī-yi Rajm (Sangsār) Thubūtan va Ithbātan (examination of the jurisprudential documents for stoning in terms of affirmation and proof), by [[Mohammad-Ebrahim Jannati Shahroudi]]
* Taqsīm-i Janīnī va Shabīhsāzī (embryo splitting and cloning), by Hasan Javāhirī
* Ḥujjīyyat-i Dhātī-yi Banāhā-yi ‘Uqalā’ī va Ta’thīr-i ān dar Fiqh va Uṣūl (the intrinsic validity of rational constructs and their effect on jurisprudence and its principles), by Mohammad-Taqī Akbarnizhād
* I‘tibār-i Ra’y-i Aktharīyyat dar Partu-yi Kitāb va Sunnat (validity of the majority vote in light of the Quran and the Sunnah), by [[Masoud Emami|Mas‘ūd Imāmī]]
* Barrisī-yi Fiqhī-yi Aḥkām-i Bānk (jurisprudential examination of banking rulings), by [[Sayyid Muhammad Baqir Sadr]]
* Pazhūhishī dar Ḥukm-i Fiqhī-yi Fīltir (Shabakihā-yi Tilvizīyūnī va Ṣafahāt-i Web va Shabakihā-yi Ijtimā‘ī-yi Majāzī) (a study about the jurisprudential ruling on filtering (television channels, web pages, and virtual social networks)), by Siyfullāh Ṣarāmī
* Ḥukm-i Namāz va Rūzi-yi Musāfir dar ‘Aṣr-i Jadīd (the ruling on the travelers’ prayer and fasting in the modern era), by [[Ahmad Abedini|Ahmad ‘Ābidīnī]]
* Fiqh-i Pizishkī; Chīstī, Chirāyī va Chigūnigī (medical jurisprudence; its nature, reasons and methodology), by Mohammad-ʿAlī Qāsimī
* Ghinā az Dīdgāh-i Islām (music from the perspective of Islam), by Kāẓim Qāḍīzādih
* Manābi‘-i Fiqh-i Sīyāsī (sources of political jurisprudence), by [[Ahmad Moballeghi|Ahmad Muballighī]]
* Dārā-Shudan-i Nā‘ādilāni va Bilājahat dar Niẓām-i Ḥuqūqī-yi Īrān va Muqāyisi-yi ān bā Akl-i Māl bi Bāṭil (unjust and groundless enrichment in the Iranian legal system and comparing it with illegitimate acquisition of property), by [[Abulqasim Alidust|Abulqāsim Ali-Dūst]]
* Darāmadī bar Fiqh-i Muḥīṭ-i Zīst (an introduction to environmental jurisprudence), by Muḥsin ‘Amīq
* Ijtihād va Iftā-yi Shūrāyī (consultative issuance of fatwas and ijtihad), [[Sayyid Javad Varai|Sayyid Javād Vara‘ī]]
* Imkānsanjī-yi Fiqhī-yi Guḏār az Mujāzāthā-yi Badanī (study of the jurisprudential feasibility of transitioning from corporal punishments), by Raḥīm Nūbahār
* Chishm-i Musallaḥ va Ru’yat-i Hilāl (armed eye and the sighting of the crescent moon), by Riḍā Mukhtārī
* Darāmadī bar Mabānī-yi Kullī-yi Fiqhī-yi Ḥijāb va Maṣ’ūlīyyat-i Duwlat (an introduction to the general jurisprudential foundations of hijab and the responsibility of the government), by [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍavī]]
* Mabānī va Adilli-yi I‘tibār-i Shar‘ī-yi Shakhṣīyyat-i Ḥuqūqī (foundations and reasons for the legal validity of the legal personality), by [[Ziya Murtazavi|Sayyid Ḍiyā’ Murtaḍawī]]
* Barrisī-yi Fiqhī-Iqtiṣādī-yi Abzārhā-yi Jāyguzīn-i Awrāq-i Qarḍi (a jurisprudential-economic examination of the instruments alternative to bonds), by [[Sayyid Abbas Musaviyan|Sayyid ‘Abbās Mūsavīyān]]
* Barrisī-yi Fiqhī-yi Fa‘ālīyyathā-yi Murtabiṭ bā Shirkathā-yi Hiramī (a jurisprudential examination of the activities related to pyramid schemes), by [[Mohammad Momen|Mohammad Mū’min]]

==Footnotes==
{{Footnotes}}
{{end}}
<references />

==References==
{{References}}
# Website of the Fiqh Quarterly
[[fa:فصلنامه فقه]]
[[ar:فصلية فقه]]
[[Category:Contemporary Jurisprudence Articles]]

Invalidity of the Majority Vote in Government

2026-09-20T07:32:45Z

Enadmin:

{{Author
|author = Alireza Salehi
|author2 =
|author3 =
|compiler =
|editor1 =
|editor2 =
|editor3 =
}}
* '''abstract'''
'''The invalidity of the majority vote in government''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%B9%D8%AF%D9%85_%D8%A7%D8%B9%D8%AA%D8%A8%D8%A7%D8%B1_%D8%B1%D8%A3%DB%8C_%D8%A7%DA%A9%D8%AB%D8%B1%DB%8C%D8%AA_%D8%AF%D8%B1_%D8%AD%DA%A9%D9%88%D9%85%D8%AA عدم اعتبار رأی اکثریت در حکومت]) is a theory about the [[majority vote]] in [[contemporary jurisprudence]] that considers the [[legitimacy]] and acceptability of the government, law, and ruler only from the perspective of valid Islamic principles, and they do not believe in any authority for the [[majority vote]] in governmental issues. This theory is opposed to theories such as the validity of the [[majority vote]] in the government and the conditional validity of the [[majority vote]]. Jurists who adhere to this theory have relied on interpreting the [[majority vote]] as an [[innovation (bid'ah)|innovation]], citing several [[Quran]]ic verses that condemn the majority, as well as narrations that did not consider the [[infallibles]] themselves obligated to obey advisors and sometimes acted contrary to their opinions.

==Introduction==
The legitimacy of referring to public opinions and the preference of the [[majority vote]] in shaping political systems in the Islamic world, drafting laws, and choosing the leaders of the Islamic community, as well as the necessity of adhering to the majority vote for everyone, are issues that have emerged and are faced in [[contemporary jurisprudence]]. Some [[Shia jurists]] believe that the majority vote is not valid in issues related to governance. Those who believe that the majority vote is not valid in governmental issues do not consider it to be a method that garners legitimacy or acceptability and believe that in Islam, legitimacy and acceptability are only created by the Divine legislation ([[sharia|sharī’ah]]), and only a government, law, and ruler determined by the sharī’ah are legitimate. According to this spectrum of jurists, the validity of the majority vote in such matters is considered an [[innovation (bid'ah)|innovation]].<ref>Noorī, “Risāleye Hurmat Mashrūteh”, Vol. 1, p. 106; Tabrīzī, “Risāleye Kashf al-Murād”, p. 132.</ref>
According to [[Masoud Emami|Masoud Emāmī]], a researcher of religious issues, those that believe in the invalidity of the majority opinion on governmental matters have not considered it valid based on the principles of “discovering the truth,” “religious legitimacy,” “expediency (maṣlahat),” and “acceptability”; however, based on the principle of the right to determine one’s destiny, the majority opinion has been considered valid.<ref>Imāmī, I’tibār Ra’y Aktharīyyat bar Mabnāye Kashf Haqīqat o Sāyir Mabānī”, p. 73.</ref> According to Emāmī’s view, the verses of the [[Quran]] that the opponents of this view have cited to support the invalidity of the majority vote do so based on the principle of discovering the truth, not the right to determine destiny; in the sense that the Qur’ān does not consider the majority of society in terms of belief, ethics, and behaviour to be in the right, and in the context of discerning the truth, deems their opinion as invalid. Therefore, the verses of the Qur’ān that criticize the majority do not tarnish the validity of the majority opinion based on the right to determine one’s destiny, and the majority opinion takes precedence over the minority opinion regardless of whether it is based on truth or falsehood. <ref>Imāmī, “I’tibār Ra’y Akthariyat dar Partov e Kitāb o Sunnat”, p .58.</ref> Furthermore, based on this perspective, the verses that emphasize the necessity of the believers obeying God and His Messenger and refraining from choosing another command are seen as defining the duty of believers in the legislative realm. In other words, these verses negate the legislative freedom of believers in relation to God while the validity of the majority opinion based on the right to determine one’s destiny is related to ontological freedom, not legislative freedom.<ref>Imāmī, “I’tibār Ra’y Akthariyat dar Partov e Kitāb o Sunnat”, p .60.</ref>

==Alternative Theories==
Regarding the legitimacy or illegitimacy of the majority vote in governmental issues, in addition to the theory of illegitimacy, two other theories titled “Legitimacy of the Majority Vote in Government” and “Conditional Legitimacy of the Majority Vote” have been proposed by contemporary jurists.

===Legitimacy of the Majority Vote in Government===
Belief in the legitimacy of the majority vote in governmental decision-making in the contemporary era, especially since the [[Constitutional Revolution]] in Iran, has been included in jurisprudential works. Some jurists such as [[Mohammad Hossein Naini|Mohammad Husain Nā’īnī]], [[Sheikh Ismail Mahallati|Sheikh Ismā’īl Mahallātī]], [[Hossein-Ali Montazeri|Husain-Ali Montazerī]], [[Mohammad Hadi Ma'refat|Mohammad Hādī Ma'refat]], and others who support the constitutional system, consider the majority vote to be binding upon everyone making that decision obligatory for everyone to follow. This group of jurists view the acceptance and legitimacy of the government, the ruler, governmental laws, and even the actuality of the ruler's authority as contingent upon the consent and majority vote.<ref>Imām Khomeini, Sahīfeye Imām, 1385, Vol. 20, p. 459; Montazerī, Hukūmat e Dīnī wa Huqūq Insān, 1429, p. 37-38.</ref> Referring to the fundamental principle of “taking preferences in conflict”<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.</ref> and the principle of the reprehensibility of preferring the minority opinion over the vote and opinion of the majority”<ref>Montazerī, Dirāsāt fī Wilāyatil Faqīh, 1409, Vol. 1, p. 554; Vol. 1, p. 564.</ref> are the most important proofs cited by this group of scholars. They also refer to verses related to the concept of consultation and the authority of the believers over each other,<ref>Ma’refat, Jāme’yeh Mudunī, 1378, p. 73 – 75; Sālehī Najafābādī, Wilāyat e Faqīh e Hukūmat e Sālihān, 1380, p. 278, Ardebīlī, Hampāye Inqilāb, 1385, p.464 – 465.</ref> as well as narrations from [[Imam Ali (AS)|Imam Ali (a)]] that link the actuality of his authority over the people to the consent and acceptance of all.<ref>Ibn Shahrāshūb, Manāqib, 1379, Vol. 1, p. 225; Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 71 – 73.</ref>

===Conditional Validity of the Majority Vote===
Thinkers like [[Abdullah Javadi Amoli|Abdullāh Jawādi Āmolī]] and [[Mohammad Sadiq Rouhani|Mohammad Sādiq Rouhānī]], contemporary jurists, believe in the conditional validity of majority vote. According to Jawādī Āmolī, from the Islamic perspective, the truth originates from the Almighty God and Divine speech is the only determinant of the truth. Therefore, following the majority implies adopting beliefs and moral values from them is condemned.<ref>Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 90.</ref> He believes that the majority opinion can only be used as a method and rule for decision-making in social disputes and should be a tool for determining the truth, not establishing it.<ref>Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 92.</ref> [[Mohammad Sadiq Rouhani|Mohammad Sādiq Rouhānī]] also believes that majority vote is valid not in determining the ruler,<ref>Rouhānī, Nizām e Hukūmat dar Islam, 1357, p. 28 – 31.</ref> but only in specific socio-political matters where the ruler does not have knowledge of its benefits and detriments<ref>Rouhānī, Nizām e Hukūmat dar Islam, 1357, p. 70 – 72.</ref>.

==Supporters and Proofs==
[[Sheikh Fazlollah Nouri|Sheikh Fazlollāh Noorī]] in his treatise on “The Prohibition of the Constitutionalism”,<ref>Nourī, Risāleye Hurmat Mashrūteh, Quoted from Turkmān, Letters, writings, and the newspapers of Sheikh Shahīd Fazlullāh Nourī, 1362, Vol. 1, p. 106.</ref> [[Mohammad Hossein Tabrizi|Mohammad Husain Tabrīzī]] in his treatise on “Kashf al-Murād”,<ref>Tabrīzī, Risāleye Kashf al-Murād, Quoted by Zargarīnezhād, Rasā’il Mashrūtiyyat, 1374, p. 132.</ref> [[Sayyid Mohammad Hossein Tehrani|Sayyid Mohammad Husaini Tehrānī]] in his book “Wilāyat al-faqīh fī hukūmat al-Islamiyyah”,<ref>Husainī Tehrānī, Wilāyatul Faqīh fī Hukūmat al-Islāmiyyah, 1418, Vol. 3, p. 183 – 184.</ref> and [[Mohammad Taqi Misbah Yazdi|Mohammad Taqī Misbāh Yazdī]] in his book “Islamic Political Theory”<ref>Misbāh Yazdī, Nazariyyeh Siyāsī e Islam, 1391, Vol. 1, p. 103 – 282.</ref> are among the jurists and theorists who do not believe in the validity of majority vote in governmental issues and consider it invalid.
Those who believe in the illegitimacy and invalidity of the majority vote in governmental affairs have presented several proofs to support their claim, which can be categorized into two types of rational and textual proofs:

===Rational Proofs===
The opponents of the legitimacy of the majority vote state that simply accepting the opinion of the majority because they are the majority against the opinion of others, even if they are in the minority, is contrary to reason. In their view, the majority of people are usually influenced by whims and the propaganda of others, and they act based on emotions rather than rational logic.<ref>Kharqānī, p. 226 & 240.</ref> For this reason, the majority vote will not have legitimacy in determining the Islamic system or the ruler and government laws.<ref>Husainī Tehrānī, Wilāyatul Faqīh dar Hukūmat e Islamī, 1421, Vol. 3, p. 190 – 192.</ref>

===Textual Reasons===
Those who believe in this view have referred to several categories of Qur’ānic verses to reject the position of the majority vote in the Islamic political system. The first category of Qur’ānic verses condemns the belief and behaviour of the majority of people in more than sixty verses, where God rebukes most people for their ignorance,<ref>Chapter A’rāf: 131 & 187; Chapter Yūsuf: 21 & 40; Chapter An’ām: 37.</ref> irrationality,<ref>Chapter Mā’idah:103; Chapter ‘Ankabūt:63.</ref> disbelief,<ref>Chapter Hūd: 17; Chapter Ghāfir: 59.</ref> ingratitude,<ref>Chapter Baqarah: 243.</ref> idolatry,<ref>Chapter Yūsuf: 106</ref> misguidance,<ref>Chapter Furqān: 44</ref> debauchery,<ref>Chapter Mā’idah: 29</ref> lies,<ref>Chapter ‘Ankabūt: 63.</ref> and following conjecture.<ref>Chapter An’ām: 116; Chapter Yūnus: 36.</ref><ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 56 – 57.</ref> Some contemporary interpreters and jurists have used these verses to refute the preference of the majority vote.<ref>‘Allāmah Tabātabā’ī, Al-Mīzān, 1390, Vol. 4, p. 103; Makārim Shīrāzī, Tafsīr Nemooneh, 1371, Vol. 14, p. 281; Mūsavī Khalkhālī, Al-Hākimīyyah fī al-Isla., 1425, p. 111; Husainī Tehrānī, Wilāyatul Faqīh fī Hukūmat al-Islāmiyyah, 1418, Vol. 3, p. 183 – 184.</ref>
Another category of verses cited by those who do not consider the majority vote valid are the ones that consider governance, authority,<ref>Chapter Nisā: 59; Chapter Mā’idah: 55.</ref> and legislation<ref>Chapter Ahzāb: 36.</ref> as exclusive to God. Therefore, whenever the people's vote contradicts the command of God and His Prophet, the Divine command takes precedence. Thus, in a religious government, theocracy takes precedence over democracy, and the people's opinion is only valuable when it does not oppose God's command.<ref>Qarā’atī, Tafsīr e Noor, 1383, Vol. 9, p. 368.</ref> Some Shī’ah scholars even interpret the most important verses cited in support of the validity of the majority vote, such as verse 159 of [[Surah Al Imran|Chapter Āl-‘Imrān]], as emphasizing the necessity of the Prophet consulting with the Muslims in a way that implies the invalidity of the majority vote.<ref>Misbāh Yazdī, Nazariyyeh Siyāsī e Islam 1391, p. 282.</ref>
Referring to some narrations is another reason for opposing the validity of the majority vote by some contemporary jurists. According to this view, it is understood from these narrations that although the infallibles consulted with others, they did not consider themselves obligated to obey the advisors and sometimes acted contrary to their opinions.<ref>Morādī & Mūsāzādeh, Mashrū’īyyat e Jomhūrīyyat dar Islam, p. 103.</ref> For example, there is a narration about [[Imam Reza (AS)|Imām Ridhā]] consulting with his companions and then making a decision based on his own will,<ref>Barqī, Al-Mahāsin, 1371, Vol. 2, p. 601.</ref> or in response to Imām Ali's rejection of [[Ibn Abbas|Ibn Abbās]]'s proposal to keep [[Muawiyah|Mu’āwiyah]] in power, it is mentioned that the Imām said: “I will dismiss Mu’āwiyah, but you must present your consultative opinion and I will also consider it; so, if I oppose you, you must obey me.”<ref>Nahjul Balāgha, Short Sayings #321, p. 531.</ref>

==Footnotes==
<references />

==Bibliography==
* The Holy Qur’ān
* Nahjul Balāgha (Sobhī Sāleh version), Qom, Hijrat Publications, 1414.
* Ibn Shahrāshūb, Muhammad ibn Ali, Manāqib e Āl Abī Tālib, Qom, ‘Allāmah Publications, 1379.
* ImāmKhomeini, Rūhullāh, SahīfeyeImām, Tehran, Markaz e Nashr e Āthār e Imām Khomeini, 1385.
* Imāmī, Masoud, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, Majalleye Fiqh #77, 1392.
* Imāmī, Masoud, I’tibār ‘Aqlī Ra’y Aktharīyyat bar Mabnāye Haqqe Ta’yīn Sarnevesht, Majalleye Fiqh #72, 1391.
* Imāmī, Masoud, I’tibār Ra’y Aktharīyyat bar Mabnāye Kashf Haqīqat o Sāyir Mabānī, Majalleye Fiqh #75, 1392.
* Barqī, Ahmad ibn Muhammad, Al-Mahāsin, Editor: Jalāl ud-dīn Mohaddith, Qom, Dār al-Kitāb al-Islāmiyyah, 1371.
* Tabrīzī, Muhammad Husain, Risāleye Kashf al-Murād, Rasā’il Mashrūtiyyat, Gholāmrezā Zargarīnezhād, Tehran, Kavīr Publications, 1374.
* Javādī Āmolī, ‘Abdullāh, Wilāyatul Faqīh, Qom, Isrā’ Publications, 1379.
* Husainī Tehrānī, Sayyid Muhamad Husain, Wilāyatul Faqīh fī Hukūmat al-Islām, Beirut, Dar al-Hijjah al-Baydhā, 1418.
* Khān Muhammadī, Yūsuf, Jāyegāh Ra’y Aktharīyyat dar Qur’ān (bā Ta’kīd bar Ārāye Āyatullāh Mūsavī Ardebīlī), Majalleye Partov e Vahy #8, 1397.
* Dehkhārkhāni, Rezā, Risāleye Tawdhīh al-Marām, Rasā’il Mashrūtiyyat, Gholāmrezā Zargarīnezhād, Tehran, Kavīr Publications, 1374.
* Rouhānī, Sayyid Muhmmad Sādiq, Nizām e Hukūmat dar Islam, Qom, Maktab al-Imām as-Sādiq, 1357.
* Sālehī, Najafābādī, Ni’matullāh, Wilāyat e Faqīh e Hukūmat e Sālihān, Tehran, Omīd e Fardā Publications 1380.
* Tabātabā’ī, Muhammad Husain, Al-Mīzān fī Tafsīr al-Qur’ān, Beirut, Al-A’lamī li al-Matbū’āt Institute, 1390.
* Fayrahī, Dāvūd, Fiqh o Siyāsat dar Iran e Mo’āsir, Tehran, Nay Publications, 1390.
* Qarā’ati, Mohsin, Tafsīr e Noor, Tehran, Markaz e Farhangī e Darshāyī az Qur’ān, 1383.
* Kulaynī, Muhammad ibn Ya’qūb, Al-Kāfī, Qom, Dār al-Hadīth, 1429.
* Morādī, Dhabīhullāh & Mūsāzādeh, Ibrāhīm, Mashrū’īyyat e Jomhūrīyyat dar Islam, Majalleye Andīshehāye Huqūq e ‘Umūmī #11, 1396.
* Misbāh Yazdī, Muhammad Taqī, Nazariyyeh Siyāsī e Islam, Qom, Āmūzeshī va Pajoheshī e Imām Khomeini Institute, 1391.
* Ma’refat, Muhammad Hādī, Jāme’yeh Mudunī, Qom, At-Tamhīd Publications Institute, 1378.
* Makārim Shīrāzī, Nāsir, Tafsīr e Nemooneh, Tehran, Dār al-Kitāb al-Islāmiyyah, 1371.
* Montazerī, Husain Ali, Hukūmat e Dīnī va Huqūq e Insān, 1429.
* Montazerī, Husain Ali, Dirāsāt fī Al-Wilāyatil Faqīh wa Fiqh ad-Dawlat al-Islāmiyyah, Qom, Tafakkur, 1409.
* Mūsavī Ardebīlī, ‘Abdul Karīm, Hampāye Inqilāb, Compiler: Sayyid Muhmmad Bāqir Najafī Kārezounī, Qom, Mufīd University Publications, 1385.
* Mūsavī Khalkhālī, Sayyid Muhmmad Mahdī, Al-Hākimīyyah fī al-Islam, Qom, Majma’ e Andīsheye Islāmī, 1425.
* Nā’īnī, Muhammad Husain, Tanbīh al-Ummah wa Tanzīh al-Millah, Editor: Sayyid Jawād Ro’eī, Qom, Daftar e Tablīghāt Islamī Publications, Qom, 1424.
* Nourī, Fazlullāh, Risāleye Hurmat Mashrūteh, Letters, writings and newspapers of Sheikh Shahīd Fazlullāh Nourī, Muhammad Turkmān, Tehran, Khadamāt e Farhangī e Rasā, 1363.

[[fa:عدم اعتبار رأی اکثریت در حکومت]]
[[ar:عدم حجية رأي الأغلبية في الحكومة]]

Mirza Mohammad-Hossein Gharavi Na'ini

2026-09-20T07:32:28Z

Enadmin:

{{Author
|author = Alireza Salehi
|compiler =
}}
{{infobox person
| reputation =
| name = Mohammad-Husayn Gharavi Na'ini
| birth = 1276 AH (c. 1860 CE)
| demise = 1355 AH (c. 1936 CE)
| image = Ayatollah Mirza Hussain Naini.jpg
| image size = 220px
| caption =
| position = Marja' al-Taqlid, a leader of the Constitutional Revolution
| denomination = Shia Islam
| nationality = Iranian
| speciality = Fiqh and Usul ([[Political Fiqh]])
| works in contemporary jurisprudence = [[Tanbih al-Ummah wa Tanzih al-Millah]]
| opinions = Jurisprudential and principled defense of constitutional government, general guardianship of the jurists
| professors = [[Muhammad Hasan Shirazi]], [[Muhammad Kazim Khurasani]]
| students = [[Abu al-Qasim al-Khoei]], [[Muhammad Ali Kazimi]]
| website =
}}
=== Abstract ===
'''Mirza Mohammad-Hossein Gharavi Na'ini''' (in persian: [[:fa:محمدحسین_غروی_نائینی|محمدحسین غروی نائینی]]) (1276-1355 AH), known as Mirza Na'ini, was a Shia jurist and Marja' al-Taqlid (source of emulation) in the contemporary era (14th century AH) and one of the clerical supporters of the Constitutional Revolution in Iran. The importance of Mirza Na'ini lies in his jurisprudential and principled innovations, and especially in his composition of the treatise [[Tanbih al-Ummah wa Tanzih al-Millah]] (The Admonition to the Nation and the Purification of the Creed), which established the "Jurisprudence of Constitutionalism" (fiqh al-mashrutah).

The authority of reason and the [[practice of the wise]] (sirat al-'uqala), the distinction between religious innovation (bid'ah) and novel creation (badi'), and the division of rulings into stipulated (mansus) and non-stipulated domains are among the intellectual foundations and principles of Mirza Na'ini that had a great impact on the formulation of his ideas. A jurisprudential and principled defense of constitutional government and its indicators such as [[legislation]], the National Consultative Assembly, freedom and [[equality]], [[separation of powers]], and [[majority rule]], as well as the belief in the general guardianship of jurists, are among his ideas in contemporary jurisprudence that influenced the thought of later jurists such as [[Sayyid Ruhollah Musavi Khomeini]].

== Introduction and Biography ==
Mohammad-Hossein Gharavi Na'ini, known as Mirza Na'ini, was a Shia jurist and Marja' in the 14th century AH and one of the clerical supporters of the Iranian Constitutional Revolution.<ref>Amin, *A'yan al-Shi'a*, 1406 AH, vol. 6, p. 54.</ref> He was born in the city of Na'in into a clerical family and studied under scholars such as Jahangir Khan Qashqa'i, Muhammad Hasan Shirazi, and [[Akhund Khurasani|Muhammad Kazim Khurasani]] in the cities of Isfahan, Samarra, Karbala, and Najaf.<ref>Amin, *A'yan al-Shi'a*, 1406 AH, vol. 6, p. 54; Aqa Bozorg Tehrani, *Tabaqat A'lam al-Shi'a (Nuqaba' al-Bashar...)*, 1404 AH, vol. 2, p. 593.</ref> His political activities included siding with Muhammad Hasan Shirazi in the Tobacco Protest,<ref>Sayyid Razi Shirazi, *Hamaseh-ye Fatwa*, special issue of Jomhouri-e Eslami newspaper.</ref> collaborating with [[Akhund Khurasani|Muhammad Kazim Khurasani]] and Abdullah Mazandarani in the Iranian Constitutional Revolution,<ref>Haeri, *Tashayyu' va Mashrutiyyat*, 1985, pp. 156-157.</ref> and also declaring jihad against the British in Iraq alongside [[Sayyid Abu al-Hasan al-Isfahani|Abu al-Hasan al-Isfahani]].<ref>Na'ini, *Tanbih al-Ummah wa Tanzih al-Millah*, p. 16; Haeri, *Tashayyu' va Mashrutiyyat*, 1985, pp. 175-178.</ref> After Mohammad-Taqi Shirazi, Na'ini became one of the Shia Marja's along with Abu al-Hasan al-Isfahani.<ref>Amin, *A'yan al-Shi'a*, 1406 AH, vol. 6, p. 54.</ref> He passed away in 1355 AH at the age of 82 in Najaf and was buried in the shrine of Imam Ali (a).<ref>Amin, *A'yan al-Shi'a*, 1406 AH, vol. 6, p. 54.</ref>

===Position and Importance in Contemporary Fiqh ===
The importance and position of Na'ini among contemporary jurists are due to his school of Usul (principles of jurisprudence) and his jurisprudential and principled innovations, to the extent that he has been referred to as the renewer (mujaddid) of the science of Usul.<ref>Vara'i, *Pazhuheshi dar Andisheh-ye Siyasi-ye Na'ini*, 2003, p. 18.</ref> However, Mirza Na'ini's scholarly fame is mostly due to his authoring of the famous treatise [[Tanbih al-Ummah wa Tanzih al-Millah]], which has been considered the first systematic treatise in Shia political thought; a treatise that rose to the theoretical defense of the entirety of constitutional principles and established the legitimacy of a system of government based on law.<ref>Tabataba'i, *Nazariyeh-ye Hukumat-e Qanun dar Iran*, 2007, p. 482.</ref> The establishment of "Fiqh al-Mashrutah" (Jurisprudence of Constitutionalism) as a new chapter in the history of ijtihad and Shia political jurisprudence is considered to be indebted to Na'ini's efforts in the treatise Tanbih al-Ummah.<ref>Firahi, *Fiqh va Siyasat*, 2013, vol. 1, p. 281.</ref> This was a literature that did not remain in the realm of theory and developed a close connection with the constitutional institutions in Iran.<ref>Firahi, *Fiqh va Siyasat dar Iran-e Mo'aser*, 2013, vol. 1, p. 335.</ref> According to [[Hossein-Ali Montazeri|Husayn Ali Montazeri]], a contemporary Shia Marja', Na'ini, in this book, was able to derive and establish new branches of [[governmental jurisprudence]] based on the principles imparted by the Shia Imams.<ref>Montazeri, *Mabani-ye Fiqhi-ye Hukumat-e Islami*, 1409 AH, vol. 1, p. 53.</ref> In the belief of [[Davoud Firahi|Davud Firahi]], a researcher in the field of political jurisprudence, Tanbih al-Ummah provided the preliminaries for a religious articulation of freedom and [[democracy]] within the Shia school of thought and has a dual importance from the perspective of the relationship between religion and modernity.<ref>Firahi, Davoud, *Astaneh-ye Tajaddod*, 2015, pp. 1-2.</ref>

=== Works ===
The works of Mirza Na'ini, according to Sayyid Muhsin al-Amin in the book A'yan al-Shi'a, are divided into two categories. Some works were written by his own hand, and some are reports (taqrirat) that Na'ini's students wrote from his lessons. Tanbih al-Ummah wa Tanzih al-Millah, Wasilat al-Najat (a manual of religious practice), Hawashi 'ala al-'Urwat al-Wuthqa, Risalat al-Salat fi al-Libas al-Mashkuk, Risalah fi Ahkam al-Khalal fi al-Salat, Risalah fi Nafy al-Darar, Risalah fi al-Ta'abbudi wa al-Tawassuli, and Ajwibat Masa'il al-Mustaftin (questions and answers on fatwas) are among the works written by himself.<ref>Amin, *A'yan al-Shi'a*, 1406 AH, vol. 6, p. 55.</ref> The books Munyat al-Talib fi Sharh al-Makasib (by Musa Najafi Khwansari), Kitab al-Salat (by Mohammad-Ali Kazemi), Ajwad al-Taqrirat (by Sayyid Abul-Qasim al-Khoei), and Fawa'id al-Usul (by Mohammad-Ali Kazemi) are also among the reports of his lessons.<ref>Na'ini, *Tanbih al-Ummah*, 2003, (in the introduction by Sayyid Javad Vara'i), pp. 18-19.</ref>

== Intellectual Foundations and Principles ==
In examining the thoughts of Mirza Na'ini, principles and foundations are extracted that resulted in transformation and innovation in jurisprudential and principled discussions and the formulation of the Jurisprudence of Constitutionalism.

=== The Authority of Reason and the Practice of the Wise (Rationalism) ===
Na'ini, in numerous instances, refers to reason and the [[practice of the wise]] (sirat al-'uqala) to prove his claims.<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 69-70.</ref> For example, in the book Tanbih al-Ummah, although Na'ini considers the principles of civilization and Islamic policies to be derived from the Book, the Sunnah, and the teachings of the Ahl al-Bayt (a), and considers the intellect of humankind to be incapable of attaining those principles, in some cases, he refers to wise intellects beyond the intellect of humankind that are capable of extracting the principles of civilization and policies, and he praises them and envies their possessors. Therefore, in Na'ini's view, attaining the principles of civilization and policies is not exclusive to religion.<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 90-91; Firahi, *Astaneh-ye Tajaddod*, 2015, pp. 36-38.</ref>

===Division of Rulings into Stipulated and Non-Stipulated Domains===
By presenting a new classification of religious rulings, Na'ini divides the affairs with which the legally responsible (mukallaf) are concerned into two domains: the domain where there is a religious text (nass) and the domain of permissible and non-stipulated matters ([[Mintaqat al-Faragh]]), where decision-making is left to the legally responsible. According to him, in the domain of stipulated matters, the practical duty of the legally responsible is specifically determined, and its ruling is recorded in the pure Shari'a, and it does not change with the change and transformation of time and place. In his belief, legislation in this domain is only possible through deriving subsidiary rulings and converting them into legal articles. In contrast, according to Na'ini, the domain of non-stipulated matters does not have a specific rule or standard, and they are, in other words, matters of hisbah (public good) whose determination is delegated to the guardian of the people, and legislation in this domain is possible.<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 133-134; Firahi, *Astaneh-ye Tajaddod*, 2015, pp. 438-442.</ref>

===Distinction between Bid'ah and Badi'===
The distinction between the two terms bid'ah (heretical innovation) and badi' (novel creation) in Na'ini's thought created a path for legitimizing the formulation of law in the National Consultative Assembly. In Na'ini's belief, not everything new and novel can be called bid'ah and forbidden legislation; rather, bid'ah is to present something not established by the Shari'a as something established by the Shari'a and divine. In contrast to bid'ah, Na'ini uses the term badi', according to which any obligation or commitment without being associated with the title of something established by the Shari'a and divine will not fall within the circle of bid'ah and will be specifically excluded from this title.<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 107.</ref> According to Firahi, Na'ini presented this discussion in opposition to the thought of Fazlullah Nuri, because by extending the bid'ah intended by Nouri to all novel and emergent matters in Islamic society, the society would suffer from disruption and hardship in the rational and normal system of life.<ref>Firahi, *Astaneh-ye Tajaddod*, 2015, p. 323.</ref>

==Views and Ideas in the Field of Contemporary Fiqh==
In the works of Mirza Na'ini, there are ideas and views that are important in the field of contemporary jurisprudence. A jurisprudential and principled defense of constitutional government and the belief in the general guardianship of jurists are among these views.
===Jurisprudential and Principled Defense of Constitutional Government===
Relying on his skills in principles of jurisprudence and fiqh, Mirza Na'ini wrote the most coherent defense of constitutional government and its indicators, such as [[legislation]], the National Consultative Assembly, freedom, [[equality]], [[consultation (*shura*)|consultation (shura)]], [[separation of powers]], [[majority rule]], etc., according to religious documents in the book Tanbih al-Ummah. By dividing government into wilayatiyyah and tamallukiyyah, he does not limit the guardianship-based nature of government to the time of the presence of the Infallible and believes that during the period of occultation, a guardianship-based government is also achievable to the extent possible, on the condition of external supervision.<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 143; Firahi, *Fiqh va Siyasat*, 2013, vol. 1, p. 291.</ref>

In Na'ini's belief, the foundation and basis of despotic and absolute monarchy lie in the absence of freedom and equality, and he sees a direct relationship between these two blessed and sacred principles<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 49-50, 86.</ref> and the progress of Islamic societies.<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 50.</ref> By referring to the practice of the noble Prophet of Islam (s) and Imam Ali (a) and citing verses from the Quran, he emphasizes the religious obligation of [[consultation (*shura*)|consultation (shura)]] in political affairs.<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 86; Firahi, *Fiqh va Siyasat*, 2013, vol. 1, pp. 297-299.</ref>

Legitimizing the issue of the separation of powers by citing the letter of Malik al-Ashtar,<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 138-140.</ref> supporting the National Consultative Assembly with a different view on the issue of matters of public good (umur hisbiyyah) and its custodian, as well as a new classification of the domain of religious rulings,<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 113-114, 133-134.</ref> and believing in the obligation to follow the majority vote by applying the principled rule of "adopting preferences in case of conflict" and citing the [[Narration of 'Umar ibn Hanzalah]],<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 115-116; Firahi, *Fiqh va Siyasat*, 2013, vol. 1, p. 317.</ref> are other branches of Na'ini's thought in defense of constitutional government.

===General Guardianship of the Jurists===
With the belief that government is a divine post, Na'ini primarily allocates it to the Infallible and secondarily entrusts it to the just jurist. In his belief, only in the absence of access to an appointed ruler can the idea of appointment be disregarded. Therefore, in his view, during the era of occultation, to the extent that a jurist can intervene in the matter of government, he should not shy away from performing this divine duty.<ref>Vara'i, *Pazhuheshi dar Andisheh-ye Siyasi-ye Na'ini*, 2003, p. 52.</ref> On this issue, he shares the opinion with other jurists that in matters of public good, jurists have guardianship.<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 75-76.</ref>

Na'ini makes the legitimacy of the laws issued by the National Consultative Assembly conditional on the presence of just mujtahids or those authorized by them in the elected body.<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 49.</ref> In the book Munyat al-Talib, which is a report of his lessons, in proving the general guardianship of jurists in the era of occultation, he disputes the validity of all the evidence cited by jurists and considers only the accepted narration of 'Umar ibn Hanzalah to be tenable for this purpose.<ref>Najafi Khwansari, *Munyat al-Talib*, 1418 AH, vol. 2, pp. 232-237.</ref> This is a point that has been emphasized in other reports of Na'ini's lessons and the books of his students.<ref>Khoei, *Misbah al-Fiqahah*, 1420 AH, vol. 3, p. 242.</ref>

==Footnotes==
{{footnotes}}

==References==
{{References}}
* Amin, Sayyid Muhsin, '''A'yan al-Shi'a''', Beirut: Dar al-Ta'aruf li-l-Matbu'at, 1406 AH.
* Aqa Bozorg Tehrani, Mohammad-Mohsen, T'''abaqat A'lam al-Shi'a (Nuqaba' al-Bashar fi al-Qarn al-Rabi' 'Ashar)''', Mashhad: Dar al-Murtada, 1404 AH.
* Feirahi, Davoud, '''Astaneh-ye Tajaddod''' [The Threshold of Modernity], Tehran: Nashr-e Ney, 2015.
* Feirahi, Davoud, '''Fiqh va Siyasat dar Iran-e Mo'aser''' [Jurisprudence and Politics in Contemporary Iran], Tehran: Nashr-e Ney, 2013.
* Haeri, Abdolhadi, *Tashayyu' va Mashrutiyyat dar Iran va Naqsh-e Iranian-e Moqim-e 'Iraq* [Shi'ism and Constitutionalism in Iran and the Role of Iranians Residing in Iraq], Tehran: Amir Kabir Publications, 1985.
* '''Hamaseh-ye Fatwa''' [The Epic of the Fatwa], special issue of the Jomhouri-e Eslami newspaper on the centenary of the death of Mirza Shirazi, 1991, interview with Ayatollah Sayyid Razi Shirazi.
* Khoei, Abul-Qasim, '''Misbah al-Fiqahah''', reported by Mohammad-Ali Tawhidi, Qom: Nashr al-Fiqahah, 1420 AH.
* Montazeri, Hossein-Ali, '''Mabani-ye Fiqhi-ye Hukumat-e Islami''' [The Jurisprudential Foundations of Islamic Government], translated by Mahmoud Salavati and Abolfazl Shakouri, Qom: Kayhan Institute, 1409 AH.
* Na'ini, Mohammad-Hossein, '''Tanbih al-Ummah wa Tanzih al-Millah''', edited by Sayyid Javad Vara'i, Qom: Bustan-e Ketab, 2003.
* Najafi Khwansari, '''Musa, Munyat al-Talib''', Qom: Mu'assasah-ye Nashr-e Islami, 1418 AH.
* Vara'i, Sayyid Javad, '''Pazhuheshi dar Andisheh-ye Siyasi-ye Na'ini''' [A Study in the Political Thought of Na'ini], Qom: Scientific Research Center of the Secretariat of the Assembly of Experts, 2003.
{{End}}

[[Category:Articles by Alireza Salehi]]
[[Category:Biographical Articles]]
[[fa:محمدحسین غروی نائینی]]
[[ar:محمدحسين الغروي النائيني]]
[[Category:Contemporary Jurisprudence Articles]]

Validity of the Majority Vote in Government

2026-09-20T07:31:00Z

Enadmin:

{{Author
|author = Alireza Salehi
|author2 =
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* '''abstract'''
'''The validity of the majority vote in government'''(in persian:[https://ency.feqhemoaser.com/fa/view/%D8%A7%D8%B9%D8%AA%D8%A8%D8%A7%D8%B1_%D8%B1%D8%A3%DB%8C_%D8%A7%DA%A9%D8%AB%D8%B1%DB%8C%D8%AA_%D8%AF%D8%B1_%D8%AD%DA%A9%D9%88%D9%85%D8%AA اعتبار رأی اکثریت در حکومت]) is a theory in contemporary jurisprudence that considers the selection of the type of political system or government officials or legislation and decision-making in the field of unwritten rulings as legitimate based on the majority vote. This theory is opposed to theories such as “the theory of the invalidity of the majority vote in government” and “the theory of the conditional validity of the majority vote”. The jurists who believe in this theory have supported their claims by making reference to some jurisprudential principles such as the principle of preferences i.e., giving preference to one contradictory proof over another, the principle of the reprehensibility of preferring an unpreferred proof over a preferred one, as well as Qur’ānic verses referring to the concept of consultation (shūrā) and narrations from Imam ‘Alī (a) that imply that his guardianship over the people was activated based on the satisfaction and acceptance of the people.
==Introduction==
Managing the society based on the people's vote and considering the opinion of the majority in the management of public and governmental affairs is one of the newly emerging issues in the Islamic world, the history of which, especially in Iran, goes back to the victory of the constitutional revolution.<ref>Khān Muhammadī, Jāyegāh Aktharīyyat dar Qur’ān bā Ta’kīd bar Ārāye Āyatullāh Mousavī Ardabīlī, p. 59-60.</ref> The legitimacy and validity of the majority vote in government issues has been accepted by some jurists as a theory in contemporary jurisprudence.

The jurists who believe in the validity of the majority vote consider the acceptability and legitimacy of the government, ruler and government laws, and even the actualization of the ruler's sovereignty to be dependent on the consent and the vote of the majority.<ref>Montazerī, Hukūmat e Dīnī wa Huqūq e Insān, 1429, p. 37-38.</ref> Imam Khomeini, one of the contemporary jurists, in response to a jurisprudential question regarding how the jurist who fulfills all of the necessary conditions of being a jurist should take charge of the affairs of the Islamic society, said that the actualization of the appointment of the jurist vis-à-vis managing the affairs of the Muslims and the formation of the government is dependent on the votes of the majority of Muslims, which is mentioned in the constitution and which was referred to as “[[paying allegiance]] to the leader of the Muslims” at the advent of Islam.<ref>Imām Khomeini, Sahīfeye Imām (An Anthology of Imām Khomeini’s Speeches, Messages, Interviews, Decrees, Religious Permissions, and Letters), 1385, Vol. 20, p. 459.</ref>

In determining the scope of the validity of the majority vote in political issues, the jurists have consensus that the definite matters of the sharī'ah ranging from beliefs, acts of worship, and transactions, the ruling of which has been determined by the sharī'ah and reached man through revelation, are not included in the realm of legislation or determination by the majority vote.<ref>‘Allāmah Tabātabā’ī, Al-Mīzān, Vol. 4, p. 56-57; Qardhāwī, Fiqh e Siyāsī, p. 183</ref> The emphasis on consultation in Islam and asking people's opinion is related to the field of social and executive affairs and matters that are entrusted to the people by the sharī'ah.<ref>Rostamī, Negāhī Tatbīqī bi Kārkard Aktharīyyat dar Democracy va Kitāb o Sunnat, p. 115 -116; Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54.</ref> It is for this reason that Mīrzā Nā’īnī, by diving the laws into “written rules” and “unwritten rules”, believes that the sharī'ah in the field of non-written matters has allowed people to fulfill their duties by passing executive laws and regulations depending on the requirements of time and place.<ref>Nā’īnī, Tanbīh al-Ummah, p. 134 – 135.</ref> [[Sayyid Muhammad Baqir Sadr]] referred to this domain as the “domain of Firāgh”.<ref>Sadr, Iqtisādunā (Our Economics), p. 380.</ref>

According to Masoud Emami, one of the researchers of religious issues, those who say that the majority vote is valid in collective decision-making areas, consider it valid only on the basis of the right to self-determination. However, based on other bases such as discovery of the truth, expediency, religious legitimacy and acceptability, the majority vote is either invalid or its validity can only be proven in a limited area.<ref>. Imāmī, I’tibār Ra’y Aktharīyyat dar Mabnāye Kashf Haqīqat o Sāyir Mabānī, p. 73.</ref> Based on this perspective, the legitimacy of the majority vote on the basis of the right to determine one’s future has been considered to be on the same footing as man’s ontological freedom (including all optional actions in individual or collective form);<ref>Imāmī, I’tibār Ra’y Aktharīyyat bar Mabnāye Haqqe Ta’yīn Sarnevesht.</ref> in the sense that the ontological freedom of human beings in collective life depends on their implementation to the obligatory tasks dictated by human reason and the sharī'ah. Therefore, the establishment and maintenance of any government, even the government of the infallibles, without the will and consent of the people will lack rational and religious legitimacy, and the consent of the people is considered one of the reasons for the legitimacy of the government.<ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54.</ref> According to this opinion, if the right of free choice of individuals in collective life leads to conflict of desires and the disruption of social order, then there is a need for a solution that preserves the two ideals of human beings, i.e. freedom of choice and order in social life. In times of conflict between these two, the aim is to give up the first principle of ontological freedom for all human beings due to the necessities of social life, and by preferring the vote of the majority to the minority, only this minority is forced to comply with laws or to accept a government that it does not believe in and thus, there is less damage incurred to the freedom of the people.<ref>Imāmī, I’tibār Ra’y Aktharīyyat bar Mabnāye Haqqe Ta’yīn Sarnevesht.</ref>
==Alternative theories==
Regarding the legitimacy and validity of the majority vote in government issues, in addition to the theory of validity, two other theories have been presented by contemporary jurists known as “[[The invalidity of the majority vote in government|the invalidity of the majority vote in government]]” and “the conditional validity of the majority vote”.
===Invalidity of the majority vote in the government===
The jurists against the constitutionality of the government in the era of the Constitutional Revolution such as Sheikh Fazlullāh Nourī and Mohammad Husain Tabrīzī, some contemporary jurists such as Sayyid Mohammad Husain Husainī Tehranī, author of the book Wilāyat al-Faqīh in the Islamic Government<ref>Husainī Tehrānī, Wilāyatul Faqīh fī Hukūmat al-Islāmiyyah, 1418, Vol. 3, p. 183 – 184.</ref> and Mohammad Taqī Misbāh Yazdī in the book Islamic Political Theory,<ref>Misbāh Yazdī, Islamic Political Theory, 1391, p. 282.</ref> were opposed to the validity of the majority vote in government issues. According to this group of jurists, the legitimacy of a government or laws can only be granted by the Divine legislator, and the preference of the majority vote over the minority without reason will be contrary to the ruling of reason and considered an innovation (bid’ah).<ref>Nourī, Risāleye Hurmat Mashrūteh, Vol. 1, p. 106,; Tabrīzī, Risāleye Kashf al-Murād, pm 132.</ref> To prove their theory, they referred to some verses from the Holy Qur’ān that condemn the majority and to some narrations as well.<ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 56-57; Morādī & Mūsāzādeh,, Mashrū’īyyat e Jomhūrīyyat dar Islam, p. 103 </ref>
===Conditional validity of the majority vote===
Contemporary jurists such as Abdullah Javādī Āmolī and Mohammad Sādiq Rouhānī believe in the conditional validity of the majority vote. According to Javādī Āmolī, in the Islamic perspective, the truth comes from God Almighty alone and the Divine word is the source through which it is determined. For this reason, following the majority, which means taking moral beliefs and values from, is reproachable. <ref>. Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 90.</ref> According to him, the majority can only be used as a decision-making method and to solve social conflicts, and it works in the capacity of recognizing the truth, not establishing the truth. According to Mohammad Sādiq Rouhānī, the majority vote is not a valid way of appointing a ruler,<ref>Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 92.</ref> but rather, its validity is exclusive to socio-political matters whose benefits and detriments the ruler is unaware of.<ref>Rouhānī, Nizām e Hukūmat dar Islam, 1357, p. 28 – 31.</ref>
==Sayings and reasons==
The concept of the majority vote, like other new concepts when entering Islamic societies, was evaluated by Shī’ah jurists in the contemporary period. [[Mohammad Husain Gharavī Nā’īnī]] in his book [[Tanbīh al-Ummah wa Tanzīh Al-Milla]] (the awakening of the community and refinement of the nations),<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115 – 116 </ref> [[Hossein Ali Montazeri]] in his book [[Dirāsāt fī wilāyah al-faqīh wa fiqh ad-Dawlah al-Islāmiyyah]],<ref>Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 554 – 564.</ref> [[Mohammad Hādī Ma’rifat]] in his book [[Jāme’eh Mudunī]],<ref>Sālehī Najafābādī, Wilāyat e Faqīh e Hukūmat e Sālihān, 1380, p. 278.</ref> [[Nematullāh Sālehī Najafābādī]] in his book “Wilāyat al-Faqīh; The government of the righteous”,<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.</ref> [[Sayyid Kāzim Hosseini Hā’erī]] in his book Wilāyat al-Amr fī Asr al-Ghaibah, and [[Mohammad Sanad Bahranī]] in his book "The Foundations of the Political System in the Imāmī Opinion” are among the jurists who evaluated the concept of the majority vote and believed in its validity in governmental issues.
Those who believe in the validity and legitimacy of the majority vote in managing government affairs have presented several reasons to support their theory, which are divided into two categories: rational and textual reasons.
===Rational arguments===
Referring to the basic “principle of taking preferences in conflict”<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.</ref> and , the principle of the reprehensibility of preferring an unpreferred proof over a preferred one (the reprehensibility of preferring the minority opinion over the vote and opinion of the majority),<ref>Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 554; Vol. 1, p. 564.</ref> are the most important rational reasons cited by this group of thinkers. Nā’īnī, one of the contemporary jurists in the era of the Constitutional Revolution, introduced the vote of the majority as one of the factors that give preference to one proof over another when two proof conflict.<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.</ref> This is a principle that is accepted and has been practiced by the [[Intellectuals of the world|intellectuals of the world]] <ref>Rouhānī, Nizām e Hukūmat dar Islam, 1386, p. 57.</ref> whose legitimacy has been confirmed by the verses about referring to a council (shūrā) and the narrations such as the [[Maqboolah of ‘Umar bin Hanzala]].<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 115 – 116; Rouhānī, Nizām e Hukūmat dar Islam, 1386, Hukūmat.</ref>

Those who accept this opinion linking between the majority vote to the concept of [[Shūrā|shūrā]], whose legitimacy has been proven by the explicit text of the Qur'ān<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 116.</ref> and from the life of the Prophet of Islam (s) and Imām ‘Alī (a), believe that in case of a difference of opinion in certain matters and assuming equal legitimacy of the parties, due to the necessity of maintaining the system, one should rely on the majority vote. The reason mentioned in the Divine legislation with regards to the obligation of following the majority vote is the same as the reason for the [[Necessity of maintaining the system|necessity of maintaining the system]].<ref>Nā’īnī, Tanbīh al-Ummah, 1382, p. 116 – 117; Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 553 – 554; Fayrahī, Fiqh va Siyāsat dar Iran e Mo’āsir, 1390.</ref> Considering that in times of conflict of opinion and the splitting up of the people into a majority group and minority group, the council rarely reaches a unanimous consensus, recognizing the majority vote is considered the only way to fulfill the council. Sheikh Rezā Dehkhorāqānī is one of the other jurists who links the reason of the validity of the majority vote to its essence being a “pathway in achieving the interests of the people” (as opposed to it having essential virtuousness in and of itself). By saying that the mere participation of the majority and their vote is not the law, but rather, because this method is the only way to reach [[Public interests|public interests]], he considers it valid.<ref>Dehkhārkhāni, Risāleye Tawdhīh Marām, p. 667.</ref>
===Textual evidence===
Those who believe in the validity of the majority vote have referred to verses from the Qur'ān including verses referring to the concept of conducting affairs by counsel, such as verses 159 of Sūrah Āl-‘Imrān and 38 of Sūrah Shūrā, as well as verses referring to the guardianship of believers over one another.<ref>Chapter Tawbah:71.</ref>
[[Mohammad Hādī Marifat]], one of the researchers of Qur'ānic sciences in the contemporary era, by equating the concept of the council with the validity of the majority vote, believes that the command to consult means respecting the majority vote and applying their opinion.<ref>Ma’refat, Jāme’yeh Mudunī, 1378, p. 73 – 75.</ref> [[Nematullāh Sālehī Najafābādī]] also equates the [[Religious government|religious government]] with the council government and believes that the [[Walī al-faqīh|walī al-faqīh]] (guardian jurist) must consult with experts and representatives of the people and be subject to the opinion of the majority in identifying issues and making decisions. By justifying the verses reprimanding the behaviour and beliefs of the majority, he attributes these verses to transcendental issues and believes that the domain of these verses is a place that human reason cannot understand.<ref>Sālehī Najafābādī, Wilāyat e Faqīh e Hukūmat e Sālihān, 1380, p. 278.</ref>
[[Abdul Karīm Mousavī Ardabīlī]], one of the contemporary jurists, also links it with the issue of the guardianship of the believers in order to legitimize the majority vote.<ref>Khān Muhammadī, Jāyegāh Ra’y Aktharīyyat dar Qur’ān bā Ta’kīd bar Ārāye Āyatullāh Mūsavī Ardebīlī, p. 68.</ref> According to his opinion, the guardianship of the believers is not a continuation of God's guardianship over the servants; Rather, it is the continuation of man's authority over his own soul. He explains this matter by stating that in the absence of a person in social fields, another person will replace him so that a legal vacuum does not form in the field of social affairs. According to this opinion, the community is considered a unit in which all humans are decision-makers, and in social issues, there will be no way other than the majority of votes for the crystallization of the human social vote.<ref>Ardebīlī, Hampāye Inqilāb, 1385, p. 464 – 465.</ref>
The supporters of the validity of the majority vote have also cited narrations, especially from Imām ‘Alī (a), who made the actualization of his authority over the people subject to the consent and acceptance of all.<ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 71 – 73.</ref> According to these narrations, Imām ‘Alī (a) told Ibn ‘Abbās about his pact with the Prophet (s) that he would not take control of the caliphate drawing his sword but rather, he would only take on the position of caliph if the people swear allegiance to him.<ref>Ibn Shahrāshūb, Manāqib, 1379, Vol. 1, p. 225.</ref> Among the other quoted narrations, there is the accepted [[Narration of ‘Umar bin Hanzala|narration of ‘Umar bin Hanzala]]<ref>Ibn Shahrāshūb, Manāqib, 1379, Vol. 1, p. 225.</ref> from Imām Sādiq (a) and the narration of the necessity of following the grand majority from Imām ‘Alī (a).<ref>Nahjul Balāgha, Sermon 127, p. 184.</ref><ref>Morādī & Mūsāzādeh, Mashrū’īyyat e Jomhūrīyyat dar Islam, p. 108; Shākerī & Rajā’ī, I’tibār o Jāyegāh Ra’y Aktharīyyat dar Nizām e Siyāsī e Islam, p. 400.
Chapter Āl ‘Imrān:20; Chapter Mā’idah:92 & 99; Chapter Ra’d:40; Chapter Shūrā:48; Chapter Nahl:35 & 82; Chapter Nūr:54, Chapter ‘Ankabūt:18; Chapter Yāsīn:17; Chapter Taghābun:12.
</ref>

According to [[Masoud Emami]], the validity of the majority vote is based on the right to determine ones’ future, which is confirmed by several verses of the Qur'ān.<ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54 – 56.</ref> In these verses, God considers the Prophet's duty to be only to convey the message. Accordingly, the verses negate any compulsion of people to follow the truth and have left the choice of right or wrong to the will of the people. Also, the narration of the Prophet (s) and the Infallible Imāms (a) are considered a clear proof of the validity of the majority vote; because although they considered themselves chosen and appointed by God, they never imposed this vision on the people and did not consent to rule over the people, unless they were assured of the support of public consent and the majority vote for their rule.<ref>Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 62.</ref>
==footnotes==
[[fa:اعتبار رأی اکثریت در حکومت]]
[[ar:حجّية رأي الأغلبية في الحكومة]]

Mohammad Mahdi Shams al-Din

2026-09-20T07:30:36Z

Enadmin:

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{{infobox person
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| name = Mohammad Mahdi Shams al-Din
| birth = 1353 AH (1935 CE)
| demise = 1421 AH (2001 CE)
| image = Mohammad Mahdi Shams al-Din.jpg
| image size =
| caption =
| position = Shia Jurist, President of the Supreme Islamic Shia Council of Lebanon
| denomination = Shia
| nationality = Lebanese
| speciality = Fiqh and Usul
| works in contemporary jurisprudence =
| opinions =
| professors = [[Sayyid Muhsin al-Hakim]] • [[Sayyid Abu al-Qasim al-Khoei]]
| students =
| website =
}}

'''Mohammad Mahdi Shams al-Din''' (in persian: [[:fa:محمدمهدی_شمس‌الدین|محمدمهدی شمس‌الدین]])(1353-1421 AH) was a Shia jurist who wrote various jurisprudential works on the political system in Islam, women's issues, and hoarding. He believed that the evidence for the [[Theory of Wilayat al-Faqih|Guardianship of the Jurist]] was inconclusive, that there was no proof for the complete political deputyship of the jurist from the Infallible Imam, and that in this regard, one must suffice with the certain extent (qadr al-mutayaqqan). Based on this, the administration of government in an Islamic society, while observing the general principles of religion, is the responsibility of the people.

He also, relying on the prohibition of changing creation in [[Quran 4:119]], argued for the primary prohibition of [[human cloning]]. He considered the distance of Shia jurisprudence from Maqasidi jurisprudence not to be due to jurisprudential or creedal reasons, but rather due to the Shiites' distance from governance. He also interpreted the [[guardianship of men over women]] in [[Quran 4:34]] as relating only to the marital relationship and only in the case where the man financially provides for the woman.

Shams al-Din completed his seminary studies in Najaf and attended the advanced jurisprudence (kharij) classes of [[Sayyid Muhsin al-Hakim]] and [[Sayyid Abu al-Qasim al-Khoei]]. After that, he engaged in intellectual and cultural activities in Lebanon for many years and also held the presidency of the Supreme Islamic Shia Council of Lebanon. He was also one of the writers for the Al-Adwa' magazine and a founder of the Islamic Dawa Party.

==Biography==
Mohammad Mahdi Shams al-Din was born on the 15th of Sha'ban, 1353 AH, in Najaf. His father, Sheikh Abd al-Karim, was a graduate of the Najaf seminary, and his lineage traced back to al-Shahid al-Awwal. At the advanced levels of seminary studies, Mohammad Mahdi Shams al-Din was a student of Sayyid Mohammad Rouhani, Sayyid Yusuf al-Hakim, and Sayyid Ali Allamah Fani Isfahani. He attended the advanced jurisprudence (kharij) classes of [[Sayyid Muhsin al-Hakim]] and [[Sayyid Abu al-Qasim al-Khoei]].<ref>Ansari Qomi and Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Obituaries: Ayatollah Shams al-Din"], *Ayeneh-ye Pazhuhesh Magazine*, p. 127.</ref>

In addition to his studies, he was engaged in teaching and writing and participated in the establishment of "Jam'iyyat Muntada al-Nashr."<ref>Ansari Qomi and Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Obituaries: Ayatollah Shams al-Din"], *Ayeneh-ye Pazhuhesh Magazine*, p. 127.</ref> Along with [[Mohammad-Reza Mozaffar]] and Mohammad-Taqi al-Hakim, they sought to reform mourning practices.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 8.</ref> Teaching at the Faculty of Fiqh in Najaf is among his credentials.<ref>Ansari Qomi and Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Obituaries: Ayatollah Shams al-Din"], *Ayeneh-ye Pazhuhesh Magazine*, p. 127.</ref> Additionally, for several years, he resided in the city of Diwaniyah, Iraq, as a representative of the office of the Marja' Sayyid Muhsin al-Hakim.<ref>Ansari Qomi and Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Obituaries: Ayatollah Shams al-Din"], p. 127.</ref>

Alongside Sayyid Ismail al-Sadr, [[Sayyid Muhammad Baqir Sadr]], Sayyid Murtada al-Askari, [[Sayyid Muhammad Hussein Fadlallah]], Abd al-Hadi al-Fadli, and [[Mohammad Mahdi Asefi]], he was one of the writers for the [[Al-Adwa' Magazine]], which was published with the support of Sayyid Muhsin al-Hakim and was simultaneously opposed by some groups in the Najaf seminary.<ref>[http://iscq.ir/my_doc/iscq/my_files/midi/besat%201501.pdf "Ayatollah Asefi and the Dawa Party"], *Be'that Publication*, p. 2.</ref>

Shams al-Din was one of the founders of the Islamic Dawa Party, established under the leadership of Sayyid Muhammad Baqir al-Sadr in the summer of 1957.<ref>Moradi, "Mohammad Mahdi Shams al-Din, His Life, Times, and Works," p. 124.</ref> He then returned to Lebanon in 1969 and engaged in intellectual and cultural activities. In 1975, he was appointed by Imam Musa al-Sadr as the vice-president of the Supreme Islamic Shia Council of Lebanon, and after the abduction of Sayyid Musa al-Sadr in 1978, he effectively took over its leadership.<ref>Moradi, "Mohammad Mahdi Shams al-Din, His Life, Times, and Works," p. 125.</ref>

In 1979, he founded the "Ma'had al-Shahid al-Awwal" seminary in Beirut, which was one of the most important seminaries of its time.<ref>Shaker Salmasi, "Introducing the Contemporary Shia Seminaries of Lebanon," p. 24.</ref>

He passed away on the 15th of Shawwal, 1421 AH (January 10, 2001), at the age of 68 in Beirut.<ref>Ansari Qomi and Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Obituaries: Ayatollah Shams al-Din"], *Ayeneh-ye Pazhuhesh Magazine*, p. 128.</ref>

==Views and Opinions==
===Guardianship of the Ummah over Itself===
{{Main|The Theory of the Ummah's Guardianship over Itself}}
Among the existing theories of political jurisprudence, Mohammad Mahdi Shams al-Din, like [[Mehdi Haeri Yazdi]], while denying any special right for jurists in government, believes that the administration of government in an Islamic society, while observing the general principles of religion, is the responsibility of the people.<ref>Kamali Ardakani and Kadivar, "Democracy in the Views of Sheikh Mohammad Mahdi Shams al-Din and Dr. Mehdi Haeri Yazdi...", pp. 63-64.</ref> According to Shams al-Din, jurists in the period of the Imam's occultation (a) are appointed to two positions: judiciary and explaining the fixed religious rulings. Other positions, including political authority and state sovereignty, have not been established for them. He also believes that jurists are not the deputies of the Infallible Imam in managing political affairs and have no guardianship over the people, and the political destiny of the people is their own responsibility. In his view, jurisprudence (fiqahah) is not a condition for the presidency of an elected Islamic state, and all matters of the state, including the head of state, are determined by referring to public opinion.<ref>Kadivar, *Theories of Government in Shia Fiqh*, pp. 171-174, as quoted in Eta'at, "Political Participation in the Thought of Shia Jurists," p. 83.</ref>

Relying on the [[Principle of Non-Guardianship]] of individuals over one another in Shia jurisprudence, Mohammad Mahdi Shams al-Din believes that no ruler possesses legitimacy, and the supreme principle in the rule of individuals over one another is that no one has the right of sovereignty over another, and any action to dominate another is illegal and illegitimate.<ref>Shams al-Din, *The Limits of Women's Political Participation in Islam*, p. 54, as quoted in Eta'at, "Political Participation in the Thought of Shia Jurists," p. 83.</ref>

According to [[Haydar Hubb-Allah]], a contemporary Shia thinker, Mohammad Mahdi Shams al-Din initially believed in political Islam but underwent an intellectual transformation from the early 1990s.<ref>Hubb-Allah, "Characteristics of the Theory of Faragh and the Overarching Laws of Sharia," p. 1.</ref>

===Prohibition of Human Cloning===
According to Mohammad Mahdi Shams al-Din, [[human cloning]] is forbidden (haram) as a primary ruling. He refers to [[Quran 4:119]], in which changing God's creation is described as being in line with Satan's will. In Shams al-Din's view, human cloning leads to an inappropriate physical change, which is referred to as "changing creation" in the aforementioned verse.<ref>Shams al-Din, *Al-Istinsakh al-Janin*, p. 58, as quoted in: Qasemi, *Encyclopedia of Medical Jurisprudence*, vol. 2, pp. 557-558.</ref>

He also puts forward the lack of ownership over the body as another reason for the primary prohibition of cloning, saying: Only God is the owner of man, and man cannot perform such a disposition.<ref>Qasemi, *Encyclopedia of Medical Jurisprudence*, vol. 2, pp. 560-561.</ref>

As researcher Seyyed Hassan Eslami has stated, Shams al-Din relies on the verse about changing creation, the principle of non-ownership of man over his body, and the [[Principle of Prohibition]] (Asalat al-Hazr) (as opposed to the [[Principle of Permissibility]] (Asalat al-Ibahah)) in this matter.<ref>Eslami, "Human Cloning from a Shia Perspective...", pp. 27-28.</ref> Eslami raises some criticisms of Shams al-Din's view, including that Shams al-Din considers human cloning an instance of inappropriate physical change and therefore an instance of [[Quran 4:119]], whereas if human cloning leads to the cloning of a healthy being, his argument will be incomplete; because in that case, cloning is not an instance of inappropriate change.<ref>Eslami, "Human Cloning from a Shia Perspective...", pp. 27-28.</ref>

===Reason for Shia Fiqh's Distance from Maqasidi Fiqh===
Mohammad Mahdi Shams al-Din holds that the only reason for Shia jurisprudence's distance from the [[Maqasidi Fiqh|Maqasidi method]] was a historical reason and the distance of Imami jurists from social and governmental affairs, and this matter has no jurisprudential or creedal basis. In this regard, he points to the prevalence of Maqasidi jurisprudence in the Islamic Republic of Iran and believes that Shia jurists taking over the government has been a cause for paying attention to Maqasidi jurisprudence.<ref>Al-Husseini, *Al-Ijtihad wa al-Hayat*, p. 24, as quoted in: Qasemi, *Critique and Review of Maqasidi Fiqh from the Sunni Viewpoint*, p. 128.</ref>

Contrary to Shams al-Din, other Shia scholars believe that the reason for the lack of attention to Maqasidi jurisprudence among Shia jurists stems from reasons such as the belief in the impossibility of attaining the underlying reasons (malakat) for rulings and consequently the impossibility of attaining the real causes of rulings, the unsystematic nature of Maqasidi jurisprudence, the narrative richness of the school of Ahl al-Bayt, and the issuance of numerous narrations from the Shia Imams (a) condemning analogical reasoning (qiyas).<ref>Al-Husseini, *Al-Ijtihad wa al-Hayat*, p. 24, as quoted in: Qasemi, *Critique and Review of Maqasidi Fiqh from the Sunni Viewpoint*, p. 127.</ref>

===Opposition to the Guardianship of Men over Women===
In Shams al-Din's view, based on Quranic verses such as the [[Quran 4:1|first verse of Surah al-Nisa]] and [[Quran 3:195]], the human identity of men and women in the Holy Quran is the same, and being a man or a woman does not imply superiority or inferiority.<ref>p. 129.</ref>

He also, citing [[Quran 4:34]], believes that the phrase "Men are the protectors and maintainers of women" (al-rijalu qawwamuna 'ala al-nisa') in the said verse must be explained alongside the condition "because of what they spend (to support them) from their means" (wa-bima anfaqu min amwalihim). Based on this, he believes that in addition to the man's guardianship over the woman being only in the marital relationship, the spending of wealth, i.e., paying for the woman's living expenses, must also be done by the man; otherwise, the man's guardianship (qawwamiyyah) over the woman will not exist.<ref>Vatani, *Rights and Duties of Spouses and...*, 2009, pp. 54-55.</ref>

Like Morteza Motahhari, Mohammad Mahdi Shams al-Din holds that the narrations prohibiting women's management are related to the context in which they were issued and cannot be generalized to other eras.<ref>Mehrizi, *Hadith-Pazhuhi*, 2011, vol. 1, p. 283.</ref>

==Works==
Mohammad Mahdi Shams al-Din has written over 30 works on various topics including political jurisprudence and Islamic government, the event of Ashura, Quranic exegesis, women's issues, and Nahj al-Balaghah.<ref>See: [https://wikinoor.ir/شمس‌الدین،_محمدمهدی "Shams al-Din, Mohammad Mahdi"], WikiNoor website.</ref> Some of his jurisprudential works include:
* [[Nizam al-Hukm wa al-Idarah fi al-Islam (Book)|Nizam al-Hukm wa al-Idarah fi al-Islam]] (The System of Governance and Administration in Islam), is Shams al-Din's first work, written in 1954, and was the first political text in Arabic to address the issue of Islamic government in the modern era.<ref>Moradi, "Mohammad Mahdi Shams al-Din, His Life, Times, and Works," p. 131.</ref> The second edition of the book was published with additions about forty years after its first printing.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 15.</ref> He considered the evidence for the guardianship of the jurist inconclusive and believed that in this regard, one must suffice with the certain extent (qadr al-mutayaqqan), and there is no proof for the complete political deputyship of the jurist from the Infallible Imam. Consequently, Shams al-Din believes that Islamic government requires the election of the people. He also considers the [[Maqbula of 'Umar ibn Hanzalah]] to be an expression of the role and position of the people in determining the ruler, based on which the legitimacy of the government is indebted to the popular will.<ref>Qasemi, *Political Guardianship of Jurists*, 2013, pp. 139-141.</ref>
* [[Al-Ihtikar fi al-Shari'a al-Islamiyya (Book)]]: A Comparative Jurisprudential Study, is a comparative study of hoarding within the framework of [[comparative jurisprudence]], written in 1410 AH. It includes the rulings on hoarding, compelling the sale of hoarded goods, and hoarding in companies and governments. It was published in Persian in 1999 under the title "Hoarding in Islam: A Comparative Study in Jurisprudence from the Viewpoint of Islamic Schools of Thought."
* A series of books titled [[Masa'il Harija fi Fiqh al-Mar'a]] on four topics: hijab, women's leadership, marital rights, and women's economic and social activities:<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 12.</ref>
:::*Al-Sitr wa al-Nazar, is about women's hijab.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 12.</ref>
:::*Ahliyyat al-Mar'a li-Tawalli al-Sultah, about women's leadership, was published in Beirut in 1996.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 10.</ref>
:::*Huquq al-Zawjiyya wa Haqq al-'Amal lil-Mar'a, which was published in Beirut in 1415 AH.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 12.</ref>
* Al-Silm wa Qadaya al-Harb 'ind al-Imam 'Ali: A study of Nahj al-Balaghah, published in Beirut in 1981, contains an examination of Imam Ali's (a) views on war and peace in relations between states and nations, which has also been translated into Persian.<ref>Hosseini, "Bibliography of Mohammad Mahdi Shams al-Din," p. 13.</ref>

==Footnotes==
{{footnotes}}

==References==
{{References}}
* "Ayatollah Asefi and the Dawa Party," interview with Sayyid Hadi Khosrowshahi, *Be'that Publication*, first half of Tir 1394, no. 1501.
* Eslami, Seyyed Hassan, "Shabih-sazi-ye Insan az Didgah-e Shi'eh; Barrasi-ye Chahar Didgah" [Human Cloning from a Shia Perspective; A Review of Four Viewpoints], *Majalla-ye Fiqh*, no. 44, Summer 2005.
* Ansari Qomi, Naser al-Din, and Seyyed Hassan Amin, [https://jap.isca.ac.ir/article_2529_95ab1360f2ced5f72bd39b9047ae3b5c.pdf "Dargozashtegan: Ayatollah Shams al-Din"] [Obituaries: Ayatollah Shams al-Din], *Majalla-ye Ayeneh-ye Pazhuhesh*, no. 67, April-May 2001.
* Hubb-Allah, Haydar, [http://hobbollah.com/wordpress/wp-content/uploads/2021/01/shamsaldeen.pdf "Mushakhkhasat-e Nazariyeh-ye Faragh va Qavanin-e Baladasti-ye Shari'at: Nazariyeh-ye Mohammad Mahdi Shams al-Din"] [Characteristics of the Theory of Faragh and the Overarching Laws of Sharia: The Theory of Mohammad Mahdi Shams al-Din], by Sa'id Noura and Mostafa Mahdavi, official website of Haydar Hubb-Allah.
* Hosseini, Mohammad, "Ketabshenasi-ye Mohammad Mahdi Shams al-Din" [Bibliography of Mohammad Mahdi Shams al-Din], *Majalla-ye Ketabhay-e Islami*, no. 2, Autumn 2000.
* Haghighat, Seyyed Sadegh, "Fiqh-e Siyasi va Demokrasi" [Political Jurisprudence and Democracy], *Faslnameh-ye Andisheh-ye Siyasi dar Islam*, no. 4, Summer 2015.
* Shaker Salmasi, Majid, "Mo'arrefi-ye Howzeh-ha-ye 'Elmiyyeh-ye Mo'aser-e Shi'eh-ye Lobnan" [Introducing the Contemporary Shia Seminaries of Lebanon], *Majalla-ye Ayeneh-ye Pazhuhesh*, no. 5 & 6, Dec 2013 - Mar 2014.
* "Shams al-Din, Mohammad Mahdi," WikiNoor website: Specialized Encyclopedia of Bibliography and Biography, accessed: July 13, 2021.
* Shams al-Din, Mohammad Mahdi, *Hudud-e Musharakat-e Siyasi-ye Zanan dar Islam* [The Limits of Women's Political Participation in Islam], translated by Mohsen Abedi, Tehran: Be'that Publications, 1997.
* Qasemi, Mohammad-Ali, *Danshnameh-ye Fiqh-e Pezeshki* [Encyclopedia of Medical Jurisprudence], Qom: Markaz-e Fiqhi-ye A'emmeh-ye Athar, 2016.
* Qasemi, Mohammad-Ali, and Ahmad Khansari, *Naqd va Barrasi-ye Fiqh-e Maqasedi az Nazargah-e Ahl-e Sonnat* [Critique and Review of Maqasidi Fiqh from the Sunni Viewpoint], Qom: Markaz-e Fiqhi-ye A'emmeh-ye Athar, 2016.
* Qasemi, Mohammad-Ali, *Velayat-e Siyasi-ye Faqihan* [Political Guardianship of Jurists], Qom: Markaz-e Fiqhi-ye A'emmeh-ye Athar, 2013.
* Kadivar, Mohsen, *Nazariyeh-ha-ye Dowlat dar Fiqh-e Shi'eh* [Theories of Government in Shia Fiqh], Tehran: Nashr-e Ney, 2001.
* Kamali Ardakani, Ali-Akbar, and Mohsen Kadivar, "Mardom-salari dar Ara-ye Shaykh Mohammad Mahdi Shams al-Din va Doktor Mehdi Haeri Yazdi va Moqayeseh-ye an ba Model-e Demokrasi-ye Takamoli (Ara-ye Rousseau-Mill)" [Democracy in the Views of Sheikh Mohammad Mahdi Shams al-Din and Dr. Mehdi Haeri Yazdi and Its Comparison with the Model of Evolutionary Democracy (Views of Rousseau-Mill)], *Nameh-ye Mofid*, no. 44, Oct-Nov 2004.
* Moradi, Majid, "Mohammad Mahdi Shams al-Din, Zendegi va Zamaneh va Asar" [Mohammad Mahdi Shams al-Din, His Life, Times, and Works], *Faslnameh-ye Misagh-e Amin*, preliminary issue 1, Winter 2007.
* Mehrizi, Mehdi, *Hadith-Pazhuhi*, Qom: Mu'asseseh-ye 'Elmi Farhangi-ye Dar al-Hadith, 2011.
* Nouri, Davoud, *Shi'iyan-e Lobnan: Vaz'iyat-e Siyasi-Ejtema'i pas az Enqelab-e Islami-ye Iran* [The Shias of Lebanon: Socio-Political Situation after the Islamic Revolution of Iran], supervised by Mahmoud Taqizadeh Davari, Qom: Shi'a-shenasi Publications, 2010.
* Vatani, Mansoureh, *Hoquq va Takalif-e Zowjein va Moqayeseh-ye Tatbiqi ba Motun-e Mazhabi dar Qur'an va Kalam-e Ahl-e Bayt*, Qom: Author and Za'er Publishing, 2009.

[[Category:Articles by Hassan Ejraei]]
[[Category:Biographical Articles]]
[[fa:محمدمهدی شمس‌الدین]]
[[ar:محمد مهدي شمس الدين]]
[[Category:Contemporary Jurisprudence Articles]]

Sayyid Ruhollah Musavi Khomeini

2026-09-20T07:30:11Z

Enadmin:

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* '''abstract'''
'''Sayyid Ruhollah Musavi Khomeini''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%B3%DB%8C%D8%AF_%D8%B1%D9%88%D8%AD%E2%80%8C%D8%A7%D9%84%D9%84%D9%87_%D9%85%D9%88%D8%B3%D9%88%DB%8C_%D8%AE%D9%85%DB%8C%D9%86%DB%8C سید روح‌الله موسوی خمینی]) (1902-1989), commonly known as Imam Khomeini, was a distinguished [[jurist]] ([[Faqih]]), scholar in [[Usul al-fiqh|Usul]], and a leading teacher of rational sciences. He played a pivotal role as the leader of the Iranian revolutionary movement during the 1960s and 1970s and was the founder of the [[Islamic Republic of Iran]]. Due to his significant position as the leader of a religious system, his [[fatwa]]s and opinions have had a considerable impact on contemporary [[jurisprudence|jurisprudential]] approaches in Iran.
The theory of [[Velayat-e Motlaqaye Faqih|absolute authority of the jurist]], the compatibility of the [[republic system]] with Islam, the incorporation of the Islamic system's interests in legal rulings, the emphasis on the role of time and place in [[ijtihad]], permitting [[gender transition]] for transgender persons, and establishing consistency in judicial rulings are among his notable contributions in the [[contemporary jurisprudence]]. He also supported gender reassignment for transgender individuals and advocated for uniformity in judicial rulings. Although he did not author a specific book or article on contemporary jurisprudence, his views and principles can be explored through his legal texts, fatwas, messages, and speeches.

==A brief introduction==
Sayyid Ruhollah Musavi Khomeini, known as Imam Khomeini, is a notable Shia religious leader ([[marja']]) in the 14th and 15th centuries of the Islamic calendar. He is celebrated as the leader and founder of the [[Islamic Republic of Iran]]. With over 25 years of religious authority, he is among the select few marja's who was followed by numerous [[Shia Muslims]] around the world.

==Significance and position==
Sayyid Ruhollah Musavi Khomeini is recognized for his exceptional contributions to the history of [[Shia jurisprudence]]. He was among the first generation of scholars at the [[Qom seminary]], having studied under its founder. His lifetime coincided with the emergence of modernity and the constitutional revolution in Iran. Imam Khomeini led a major revolutionary movement and later established a new government based on Shia doctrines. The challenges faced by this newly formed government in a modern context required innovative jurisprudential strategies. Thus, his legal perspectives have had a considerable influence in the years after his death. Even if he had not held a political leadership role, his position as a religious authority ([[marja']]) in the modern era compelled him to provide insights on newly-emerged phenomena and their legal rulings.
Imam Khomeini firmly believed in the relevance and effectiveness of [[Islamic jurisprudence]] in all times. In his response to a letter from one of the scholars of the Qom seminary,<ref>Mohammad Hassan Ghadiri (1938-2008), a distinguished scholar at the Qom Seminary and a member of the Imam Khomeini Inquiry Board.</ref> he emphasized that certain interpretations of Islamic law could lead to the decline of modern civilization and a regression of people to a life in deserts and huts.<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, pp. 150-152.</ref> He believed that Shia jurisprudence has the capacity to govern the world and cautioned against any interpretation that might suggest Islam's inability to manage the modern society.<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, p. 218.</ref>

==Biography==
Sayyid Ruhollah Musavi Khomeini was born in 1902 in Khomein. He completed his religious studies in Arak and Qom. His most significant teachers included [[Abdul Karim Haeri Yazdi]] in jurisprudence, [[Mohammad Reza Isfahani Masjed-Shahi]] in the science of Usul, and [[Mohammad Ali Shah Abadi]] in mysticism. He gained recognition as a significant teacher in the seminary from the 1940s and became a notable religious leader ([[marja']]) after the death of [[Seyyed Hossein Tabatabai Borujerdi]] in the early 1960s.
After the death of Ayatollah Borujerdi and beginning of his religious authority, he initiated an open resistance against the ruling monarchy in Iran. Due to these activities, he was exiled to Turkey in 1964 and subsequently to Najaf in Iraq. From 1965 to 1978, he led the opposition against the Pahlavi regime while also engaging in religious leadership and teaching at the seminary in Najaf. In February 1979, after a stay of less than three months in Paris, he returned to Iran. On February 11 of the same year, the monarchy in Iran was overthrown, and shortly thereafter, the Islamic Republic was established through a referendum.
Following the establishment of the Islamic Republic in Iran, he assumed leadership of the system. His prominence increased significantly during this era, with many Shia adherents worldwide choosing to emulate him. He passed away on June 4, 1989, aligning with the 9th of Shawwal, 1409 AH, and was buried after a monumental funeral procession in Tehran attended by ten million people.<ref>Extracted from the biography section of the Imam Khomeini portal.</ref>

==Works==
Based on the information provided by the Imam Khomeini portal, he has authored or compiled over 80 volumes concerning both analytical jurisprudence and fatwa jurisprudence.<ref>Page of the works of Imam Khomeini on the Imam Khomeini portal.</ref> However, it is noteworthy that there are no independent works or articles specifically addressing contemporary jurisprudential issues among these works. His views and theories can be traced through his fatwas, messages, governmental directives and speeches. For instance, the theory of the role of time and place in ijtihad was first introduced in a letter to the members of the [[Expediency Discernment Council]]<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, p. 217.</ref> and later reiterated in a message to clerics across the nation.<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, p. 289.</ref> Or, the theory of the [[guardianship of the jurist]] was elucidated during his advanced lessons (Kharij).<ref>Khomeini, Wilayat-e Faqih, Publisher's Introduction, p. 1. Khomeini, Kitab al-Bay', Vol. 2, pp. 617-670.</ref> Furthermore, the theory asserting the precedence of the powers of the guardianship of the jurist over other primary rulings is explicitly stated in his letter to [[Ayatollah Seyyed Ali Khamenei]].<ref>Imam Khomeini, Sahifeh Imam, Vol. 20, p. 452.</ref>

==Views and ideas in the Field of Contemporary Jurisprudence==
===The role of time and place in ijtihad===
{{main|The Role of Time and Place in Ijtihad}}
In various speeches and messages, Imam Khomeini has articulated the importance of time and place in [[ijtihad]].<ref>Imam Khomeini, Sahifeh Imam, Vol. 5, p. 293 and Vol. 21, pp. 217 and 289.</ref> He considered the traditional ijtihad practiced in seminaries to be inadequate<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, pp. 177 and 292.</ref> and acknowledged that, despite his endorsement of Jafari jurisprudence, time and place are essential components in ijtihad. Nonetheless, his jurisprudential works do not provide detailed explanations on how these two factors may influence ijtihad. In his renowned message known as the Charter of Clergy, he emphasized that a legal issue may not have undergone any apparent change over time, yet a precise understanding of its economic, social and political contexts could transform it into a new subject.<ref>Imam Khomeini, Sahifeh Imam, Vol. 21, p. 289</ref> To clarify the nature of this influence, a multitude of books, articles, and interviews have been produced by Islamic jurists and researchers. In 1995, a scientific conference was convened on this subject, and the resulting articles were compiled into a 15-volume series titled "The Collection of Articles from the Congress on the Jurisprudential Foundations of Imam Khomeini."
See also: the study sources on the role of time and place in ijtihad.

===The republic nature of a political system===
{{main|a republic system}}
It can be stated that prior to the rise of the Islamic Revolution in December and January of 1978-1979, and the introduction of the concept of an Islamic Republic, none of the Shia scholars explicitly defended the idea of republicanism within the context of a religious government. In his interviews in Paris, Imam Khomeini declared that the system in Iran would be based on republican principles.<ref> For example: Imam Khomeini, Sahifeh Imam, Vol. 5, pp. 144, 223.</ref> After his return to Iran and before the nationwide referendum, he affirmed his support for the Islamic Republic.<ref>Imam Khomeini, Sahifeh Imam, Vol. 6, p. 433.</ref>

===The absolute authority of the jurist" (Velayat-e Motlaqeye Faqih)===
The [[Velayat-e Motlaqaye Faqih|absolute authority of the jurist]] is a theory that Imam Khomeini is recognized as its foremost theorist. This principle entails the authority of the jurist to intervene in all social and political matters, even in instances where there exists an initial religious ruling. In his book "Al-Bay' (The Sale)," he he repeatedly asserts that the powers of the jurist are equivalent to those of the Prophet and the Imams.<ref> Khomeini, Kitab al-Bay', Vol. 2, pp. 654, 664.</ref> It can be argued that Imam Khomeini's most explicit statements on this subject are found in his letter to Ayatollah Seyyed Ali Khamenei. In this letter, Imam Khomeini clarifies that the authority of the jurist is not confined to the boundaries of initial rulings, asserting that the scope of the jurist's authority is as extensive as that of the Messenger of God.<ref> Imam Khomeini, Sahifeh Imam, Vol. 20, pp. 451-452.</ref>
The author of the article on the process of the secularization of Shia jurisprudence considers this theory to be one of the most significant foundational elements of modern state thought.<ref> Hajjariyan, Az Shahid Qudsi Ta Shahid Bazari, p. 84.</ref> From this perspective, the influence of this theory on contemporary jurisprudence becomes evident.

===The precedence of the interests of the Islamic system over primary rulings===
One of the most critical legal opinions of Imam Khomeini is the assertion that the interests of the Islamic system take precedence over other fundamental religious laws. The challenges faced by legislative bodies in the early years of the Islamic Republic set the stage for Imam Khomeini to present this theory. This viewpoint maintains that when the interests of the Islamic government call for the enactment of a specific law that is at odds with primary religious principles, the interests of the system are to be prioritized. The government is obliged to adhere to that law as long as the necessity remains, and once the necessity is resolved, it must revert to the implementation of primary religious rulings.
To resolve the potential conflicts between the [[Islamic Consultative Assembly]] (Iranian parliament) and the [[Guardian Council]], which is responsible for ensuring that laws comply with Islamic principles, Imam Khomeini, allowed, for the first time, that if a law passed by the parliament was deemed contrary to Islamic law, it could still be enacted if two-thirds of the legislators deemed it necessary.<ref> Imam Khomeini, Sahifeh Imam, Vol. 17, p. 321.</ref> Subsequently, in February 1988, he established a group known as the [[Expediency Discernment Council]] to arbitrate disputes between the parliament and the Guardian Council, granting them the authority to approve measures they deemed expedient, even if they conflicted with fundamental Islamic rulings or the Constitution.<ref> Imam Khomeini, Sahifeh Imam, Vol. 20, p. 464.</ref>

===Consistency in judicial rulings===
{{main|Consistency in the application of discretionary punishments}}
According to [[Shia jurisprudence]], discretionary punishments are imposed at the discretion of the Islamic judge, who is a qualified jurist ([[Mujtahid]]). During the Islamic Republic, due to a shortage of qualified mujtahid judges, non-jurists have also been permitted to adjudicate, issuing rulings based on statutory laws and, in some instances, according to the opinions of religious scholars. In response to an inquiry from the officials of the judiciary branch then, Imam Khomeini deemed it permissible to maintain consistency in similar cases, as long as there were not fully qualified judges.<ref> Imam Khomeini, Sahifeh Imam, Vol. 18, p. 491.</ref> Given that the Guardian Council insisted on determining discretionary punishments based on the judge's opinion, Imam Khomeini reiterated his approval of uniformity in judicial rulings in a letter to the Judicial Commission of the Iranian parliament, assigning a group to define discretionary punishments.<ref> Imam Khomeini, Sahifeh Imam, Vol. 19, p. 424.</ref>

===Legal Addresses===
Legal addresses provide a framework for understanding how laws are established and obligations are assigned to those who are bound by them. This issue is discussed in jurisprudential principles, under the topics of opposite and ordering. The theory aims to resolve the complexities associated with conflicting duties. Some scholars suggest that the application of Legal addresses paves the way for addressing society and government as a whole, rather than merely targeting individuals.<ref> Khalafkhani, Raghebi, Alavi Vothuqi, The Theory of Legal Addresses and Its Role in Social Jurisprudence, p. 54.</ref> They claim that such an approach would not have been feasible in the absence of the legal addresses. Furthermore, [[Davud Feirahi]], a researcher in political jurisprudence, believes that legal addresses significantly influence the jurisprudence of governance<ref> Feirahi, Jurisprudence and Politics in Iran, Vol. 2, p. 322.</ref> and contribute to a more democratic interpretation of Islamic Jurisprudence.<ref> See: Feirahi, Jurisprudence and Politics in Iran, Vol. 2, pp. 320-338.</ref>

===The permission for gender transition===
{{main|gender transition}}
It seems that Imam Khomeini was the first Shia jurist to issue a fatwa permitting gender transition in the 1960s. In his book "Tahrir al-Wasilah," he outlines several legal considerations regarding the unrestricted allowance of gender change, particularly for individuals who experience challenges in establishing their sexual identity.<ref> Khomeini, Tahrir al-Wasila, Vol. 2, pp. 668-670.</ref>
See also: Study sources on gender transition

===Permission for playing chess and the buying and selling musical instruments===
In response to a query concerning the game of chess in 1988, Imam Khomeini stated that it is permissible as long as the game is not associated with gambling and players do not intend to win or lose. He deemed the game permissible under the conditions outlined in the question.<ref> Imam Khomeini, Sahifeh Imam, Vol. 21, p. 129.</ref> In the same letter, he also permitted the sale and purchase of musical instruments for lawful purposes.<ref> Imam Khomeini, Sahifeh Imam, Vol. 21, p. 129</ref> A few days later, he provided additional clarification regarding his ruling in response to a letter from a scholar at the Qom seminary.<ref> Imam Khomeini, Sahifeh Imam, Vol. 21, pp. 149-152.</ref> It is significant to note that many Shia jurists consider chess to be forbidden to play, even without the intention of winning or losing. Following the issuance of this ruling, chess was officially recognized, leading to the establishment of federations and formal competitions.

==Study sources==
{{column|2}}
# A scholarly session on the fundamental innovations of Imam Khomeini held at the Fahim Institute, with presentations by Kazem Ghazizadeh and Abolqasem Moghimi. See the report of the session here.
# "The Jurisprudential-Political Innovations of Imam Khomeini", Ghodratollah Iffati, Pegah Hawzah journal, issue 255, 2009. The article can be accessed here.
# "The Jurisprudential Foundations of Imam Khomeini's Specific Opinions", Zahra Govahi, Tehran, Uruj Printing and Publishing Institute, 2003.
{{end}}

==Footnotes==
{{Footnotes}}
<references />

==References==
{{References}}
# Imam Khomeini Portal.
# Hajjarian, Saeed, Az Shahid Qudsi Ta Shahid Bazari, Tehran, Tarh-e No, 2001.
# Khalafkhani, Ali, RaGHebi, Mohammad Ali, Alavi vothuqi, Seyyed Yusef, The Theory of Legal Addresses and Its Role in Social Jurisprudence, Journal of Jurisprudential and Principles Studies, Issue 20, 2020.
# Imam Khomeini, Seyyed Ruhollah, Tahrir al-Wasila, Institute for the Compilation and Publication of Imam Khomeini's Works, Tehran, 2013.
# Imam Khomeini, Seyyed Ruhollah, Sahifeh Imam, Institute for the Compilation and Publication of Imam Khomeini's Works, Tehran, 1999.
# Imam Khomeini, Seyyed Ruhollah, Kitab al-Bay' (The Book of Sale), Institute for the Compilation and Publication of Imam Khomeini's Works, Tehran, 2009.
# Imam Khomeini, Seyyed Ruhollah, Velayat-e Faqih, Institute for the Compilation and Publication of Imam Khomeini's Works, Tehran, 2015.
# Feirahi, Davud, Jurisprudence and Politics in Iran: The Transformation of Governance and Islamic Jurisprudence, Tehran, Nashr-e Ney, 2014.

[[fa:سید_روح‌الله_موسوی_خمینی]]
[[ar:السيد روح الله الموسوي الخميني]]
[[Category:Biographical Articles]]
[[Category:Contemporary Jurisprudence Articles]]

Mohammad-Ebrahim Jannati Shahroudi

2026-09-20T07:29:15Z

Enadmin:

{{Author
|author = Mohammad Mahdi Emadi
|compiler =
}}

{{infobox person
| reputation = Ayatollah Jannati Shahroudi
| name = Mohammad-Ebrahim Jannati Shahroudi
| birth = 1311 SH (c. 1932 CE)
| demise = 1424 SH (2026 CE)
| image = Mohammad-Ebrahim Jannati Shahroudi.jpeg
| image size =
| caption =
| position = Jurist (*Faqih*)
| denomination = Shia
| nationality = Iranian
| speciality =
| works in contemporary jurisprudence =
| opinions = Intrinsic purity of humans, opposition to the necessity of emulating the most learned, permissibility of sculpture
| professors =
| students =
| website = http://www.jannaati.com/far/index.php
}}

'''Mohammad-Ebrahim Jannati Shahroudi''' (in persian: [[:fa:محمدابراهیم_جناتی_شاهرودی|محمدابراهیم جناتی شاهرودی]]) (1311-1404 SH) is an innovative jurist who organizes his jurisprudential deduction by relying on the examination of the criteria (malakat) of rulings in social and governmental issues. Based on this, he has issued unconventional and minority fatwas, including the intrinsic purity of humans and the permissibility of women holding the position of a judge. The books [[General Methods of Deduction in Fiqh from the Perspective of Islamic Jurists (Book)|General Methods of Deduction in Fiqh from the Perspective of Islamic Jurists]] and [[Fiqh and Time (Book)|Fiqh and Time]] are among his works and express his jurisprudential and principled thoughts. Jannati has theorized on topics such as desirable ijtihad, the age of puberty for girls, music, hijab, the status of women from the perspective of jurisprudential principles, and also apostasy.

Jannati has also conducted studies and research in the field of comparative jurisprudence and has participated in international seminars and congresses, publishing his theories on dynamic ijtihad, the method of deduction, and the ability of Islam to solve crises in Persian and Arabic journals, including Sawt al-Islam and the [[Keyhan-e Andisheh Bi-monthly|Keyhan-e Andisheh]].

==Position and Importance==
With an approach different from traditional jurists, Mohammad-Ebrahim Jannati seeks to make Shia jurisprudence responsive to contemporary challenges. In this endeavor, in addition to adhering to established and well-known rules of jurisprudence and ijtihad, he emphasizes several principles: giving importance to the Quran in jurisprudential and legal deductions, paying attention to the realities of life, re-examining sources and references, distinguishing between temporary and permanent rulings, and discovering the purposes and causes of rulings in non-worship matters.<ref>Mehrizi, [http://ensani.ir/file/download/article/20120413182552-5176-2.pdf "Religious Approaches to Women in Contemporary Iranian History"], pp. 21-22.</ref>

Jannati has also expressed his views on comparative jurisprudence by participating in international seminars and congresses. In addition, interviews with him have been published in various magazines and publications, including those in Iran, Pakistan, India, France, England, and the United States. In this context, he participated in the seminar on the "Place of Reason in Holy Texts" at the University of Birmingham, the seminar on "Understanding Shi'ism in the Past and Present" at Istanbul University, the seminar on "Comparative Fiqh and Methods of Ijtihad" at Damascus University, and also the "Islamic Discussions" seminar in Qamatiyeh, Lebanon, where he delivered speeches and read papers.<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref>

==Life, Education, and Ijtihad==
Mohammad-Ebrahim Jannati was born in 1311 SH in Semnan. After a period of study in Mashhad, he went to Qom and attended the advanced jurisprudence (kharij) class of [[Sayyid Hossein Tabatabaei Borujerdi]], the head of the Qom seminary, and the advanced principles of jurisprudence (usul al-fiqh) class of [[Sayyid Ruhollah Musavi Khomeini]]. Jannati then went to Najaf and for 25 years participated in the classes of [[Sayyid Abd al-Hadi al-Shirazi]], [[Sayyid Muhsin al-Hakim]], [[Sheikh Hussein al-Hilli]], [[Sayyid Baqir al-Zanjani]], [[Sayyid Mahmud al-Shahrudi]], and [[Sayyid Abu al-Qasim al-Khoei]].<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref> In addition to his religious studies, he taught advanced seminary courses for eleven years and also, in his last years in Najaf, established an advanced principles of jurisprudence class at the Grand Madrasa of Akhund Khurasani.<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref>

Mohammad-Ebrahim Jannati received permission for ijtihad from Sayyid Mahmud al-Shahrudi (d. 1353 SH). After the victory of the Islamic Revolution in 1357 SH, Jannati returned to Iran, settled in Qom, and continues to teach and write books and academic articles.<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref> He was currently a Shia jurist and Marja' al-Taqlid (source of emulation) and a member of the Academy of Sciences of the Islamic Republic of Iran.

==Works==
The written works of Mohammad-Ebrahim Jannati fall into two areas: book authoring and journalistic activities.

===Writings===
In his authored works, Jannati pays special attention to the topic of desirable ijtihad and emphasizes the role of temporal, spatial, and customary changes on the evolution of ijtihad.<ref>Arezumandi, "A Look at the Book Fiqh and Time...", pp. 213-214.</ref> The books "General Methods of Deduction in Fiqh from the Perspective of Islamic Jurists," "Al-Nafahat al-'Ilmiyyah fi Usul al-Fiqh al-Imamiyyah," and [[The Developmental Course of Ijtihadi Fiqh in the Context of Time (Book)|The Developmental Course of Ijtihadi Fiqh in the Context of Time]] are his works on the principles of jurisprudence. He has also dealt with the periods and developments of the science of jurisprudence and its principles in the two books "Periods of Ijtihad from the Viewpoint of Islamic Schools of Thought" and "Periods of Fiqh and Its Manner of Expression."<ref>["Mohammad-Ebrahim Jannati"](https://db.ketab.ir/BookList.aspx?Type=Authorid&Code=26792), Khaneye Ketab website.</ref>

Also, the book [[Fiqh and Time (Book)|Fiqh and Time]], which includes the articles "The Age of Puberty for Girls," "Music," "Hijab," "The Status of Women from the Perspective of Ijtihadi Principles," [[Desirable Ijtihad (Book)|Desirable Ijtihad]], [[Apostasy from the Viewpoint of Islamic Schools of Thought (Book)|Apostasy from the Viewpoint of Islamic Schools of Thought]], "Purity of the Slaughtered Animals of the People of the Book," and [[Intrinsic Purity of Humans (Book)|Intrinsic Purity of Humans]], is another of Mohammad-Ebrahim Jannati's works. He has conducted studies in the field of comparative jurisprudence and has comparatively examined jurisprudence, its principles, hadith sciences, and Quranic sciences from the perspective of 22 schools of thought,<ref>Imamiyyah, Hanafiyyah, Malikiyyah, Shafi'iyyah, Hanbaliyyah, Zaydiyyah, Ibadiyyah, Zahiriyyah, Awza'iyyah, Thawriyyah, Laythiyyah, Rahwiyyah, Nakha'iyyah, Tamimiyyah, Tabariyyah, Jabiriyyah, Kalbiyyah, Shubrumiyyah, Ibn Abi Layla, Zuhriyyah, 'Uyayniyyah, and Jurayhiyyah.</ref> and some of his works on this topic have been published, including the books Sources of Ijtihad, Periods of Ijtihad, and Periods of Fiqh.

===Journalistic Activities===
The journalistic writings of Mohammad-Ebrahim Jannati are mostly focused on the theory of dynamic ijtihad, the method of deduction, as well as proving the capability of Islam in solving crises and the relationship between Islamic nations and states. Jannati has had connections with many Iranian and non-Iranian publications, and hundreds of Persian and Arabic articles by him have been published. Some of the journals in which his works have been published include: Al-'Adl, Sawt al-Islam, Al-Thaqafah al-Islamiyyah, Al-Fikr al-Islami, Al-Tawhid, and Risalat al-Taqrib.<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref> Among these, the article "Azmat al-Ihtiyat fi al-Fatawa al-Diniyyah" was published in the journal Al-Thaqafah al-Islamiyyah, which examines the precautionary method in issuing fatwas.

His articles have also been published in Iranian publications such as Jahan-e Islam, Zanan, and Soroush.<ref>["Biography"](http://jannaati.com/far/?page=1), Ayatollah Jannati's Information Website.</ref> The article "The Era of the Perfection of Ijtihad" was published in the [[Keyhan-e Andisheh Magazine]] and explains the period of the perfection of ijtihad, from the era of Wahid Behbahani to Sheikh Ansari.<ref>See: Jannati, "The Era of the Perfection of Ijtihad," *Keyhan-e Andisheh*, no. 47, 1992.</ref>

==Jurisprudential Opinions==
Several fatwas by Mohammad-Ebrahim Jannati are among the minority and unconventional opinions and fatwas among Shia jurists; including the [[Intrinsic Purity of Humans]], the permissibility of women holding the position of a judge, and opposition to the necessity of emulating the most learned.

===Intrinsic Purity of Humans===
Jannati has issued a fatwa on the intrinsic purity of humans, and consequently, the lawfulness of the slaughtered animals of the People of the Book. In "The Theory of the Absolute Intrinsic Purity of Humans in Line with the Sources of Ijtihad," he interprets impurity as a spiritual and value-based impurity, not a physical one, and on this basis, he considers the disbeliever to be pure.<ref>Jannati, ["The Theory of the Absolute Intrinsic Purity of Humans in Line with the Sources of Ijtihad"](http://ensani.ir/fa/article/99655/), *Keyhan-e Andisheh*.</ref> However, the majority of Shia jurists have ruled on the [[Purity of the People of the Book|impurity of the People of the Book]], let alone non-People of the Book.<ref>Navvab, "Critique and Review of the Textual Evidence for the Purity and Impurity of the People of the Book," p. 49.</ref>

The permissibility of a Muslim marrying a disbelieving woman and the lawfulness of the slaughtered animals of the People of the Book are other fatwas by Jannati in this regard, which stand in opposition to the consensus or majority fatwas of other jurists on the prohibition of marriage with a disbelieving woman<ref>Najafi, *Jawahir al-Kalam*, vol. 30, p. 27.</ref> and the prohibition of the slaughtered animal of a disbeliever.<ref>*Tawdih al-Masa'il of the Maraji'*, vol. 2, p. 745.</ref>

===Permissibility of Women Holding the Position of a Judge===
The permissibility of women holding the position of a judge is another of Mohammad-Ebrahim Jannati's opinions, which has opponents such as al-Halabi and Ibn Idris among the early jurists, and [[Sheikh Ansari]] and [[Mirza Qomi]] among the later ones.<ref>Soroush Mahallati, "An Introduction to the Study of Women's Judicature," pp. 54, 64.</ref> Also, the author of Jawahir has claimed a consensus on the condition of masculinity for a judge.<ref>Najafi, *Jawahir al-Kalam*, vol. 40, pp. 12, 14.</ref>

Jannati has also permitted women to hold the position of a Marja' (source of emulation), which is a controversial opinion.<ref>Amin, ["Gender and Marja'iyyat"](http://ensani.ir/fa/article/112053/), *Hawra' Magazine*.</ref>

===Opposition to the Necessity of Emulating the Most Learned===
Jannati has opposed the necessity of emulating the most learned; whereas [[Muhaqqiq al-Karaki]] has claimed a consensus on emulating the most learned.<ref>Borujerdi, *Nihayat al-Afkar*, vol. 4, p. 248.</ref> He does not consider "most learned" (a'lamiyyat)—in the sense of being more capable of deriving God's ruling—to be conceivable either at the apparent and evidentiary level or at the level of reality and fact. Jannati also considers "most learned" in another sense, i.e., "making fewer mistakes in tracing back subsidiary issues and new problems to basic principles," to be conceivable, but finds it very difficult to determine which of two mujtahids makes fewer mistakes in the process of derivation.<ref>["Selected Fatwas"](http://jannaati.com/far/index.php?page=6), Ayatollah Jannati's Information Website.</ref>

===Permissibility of Sculpture===
Mohammad-Ebrahim Jannati considers sculpture to be one of the valuable arts and is of the opinion that today, criteria such as reprehensible and polytheistic motives and the intention to imitate the Creator do not exist in sculpture, so it is considered a permissible act.<ref>["Selected Fatwas"](http://jannaati.com/far/index.php?page=6), Ayatollah Jannati's Information Website.</ref> Such an opinion has been issued while Sheikh Ansari has claimed a consensus on the prohibition of sculpting living beings, although [[Hossein-Ali Montazeri]] has rejected the existence of a consensus on this matter.<ref>Montazeri, *Dirasat fi al-Makasib al-Muharramah*, vol. 2, p. 548.</ref>

===Age Not Being the Criterion for Puberty in Girls===
Jannati considers menstruation to be the main criterion for the [[puberty of girls]] and has not accepted the role of age in its determination. He believes that the mention of different ages in the narrations is due to the difference in living environments, geographical conditions, and genetic and physical factors, and that menstruation in girls is equivalent to semen in boys, and the criterion for a girl's puberty is her monthly period, not reaching the age of nine.<ref>Jannati, "Puberty from the Perspective of Ijtihadi Fiqh," p. 42.</ref> Contrary to Jannati, the majority of Imami jurists have considered age, alongside menstruation and other signs, as a sign of puberty for girls, to the extent that Ibn Idris has claimed a consensus on age being a criterion.<ref>Shahid al-Thani, *Al-Rawdah al-Bahiyyah*, vol. 1, pp. 155-156; Tabataba'i Yazdi, *Al-'Urwat al-Wuthqa*, vol. 1, p. 528.</ref>

===The Definition of Ghina in Music Not Being Based on Custom===
In Jannati's view, a specific meaning of ghina (singing, often associated with forbidden music) cannot be reached through custom ('urf), because ghina is discussed in a specific custom and always varies with changing conditions of time and place, geography, culture, society, and human states. This has caused jurists to differ on the concept of ghina; therefore, a comprehensive and exclusive definition of ghina cannot be obtained through custom.<ref>Jannati, ["Art and Beauty from the Perspective of Ijtihadi Fiqh Principles"](http://ensani.ir/fa/article/105806/), *Keyhan-e Andisheh*.</ref> On this issue, however, the majority of jurists consider custom to be the criterion for distinguishing forbidden music from permissible music.<ref>Makarem Shirazi, *Istifta'at*, vol. 2, q. 659; Safi Golpayegani, *Jami' al-Ahkam*, vol. 1, q. 994, 1018, 1020; Tabrizi, *Istifta'at*, q. 1077, 1050, 1059; Fazel Lankarani, *Jami' al-Masa'il*, vol. 1, q. 996; Khamenei, *Ajwibat al-Istifta'at*, q. 1154, 1127; Sistani, *Minhaj al-Salihin*, vol. 2, issue 20; Nouri Hamedani, *Istifta'at*, vol. 1, q. 1008; Vahid Khorasani, *Minhaj al-Salihin*, vol. 3, issue 17.</ref>

===Virgin's Marriage Not Being Conditional on the Guardian's Permission===
Like the majority of Shia jurists,<ref>Najafi, *Jawahir al-Kalam*, vol. 29, p. 175.</ref> Mohammad-Ebrahim Jannati does not consider the guardian's permission to be a condition for the marriage of a mature virgin. He specifies that the father's permission is not a condition for the marriage of a girl who understands her own interests and harms and is not influenced by emotions, and the choice is her own.<ref>["Selected Fatwas"](http://jannaati.com/far/index.php?page=6), Ayatollah Jannati's Information Website.</ref> However, many contemporary jurists, contrary to him and the majority of early jurists, consider the permission of the father or paternal grandfather to be a condition for the marriage of a mature virgin.<ref>Tabataba'i Yazdi, *Al-'Urwat al-Wuthqa*, vol. 5, p. 615; *Tawdih al-Masa'il of the Maraji'*, vol. 2, p. 387, issue 2376.</ref>

===Permissibility of Contraception by a Woman===
Jannati holds that a woman can use contraception without her husband's consent; a fatwa that has both supporters<ref>Khoei, *Minhaj al-Salihin*, vol. 2, p. 284; Vahid Khorasani, *Minhaj al-Salihin*, vol. 3, p. 318, issue 1378; Sistani, *Minhaj al-Salihin*, vol. 3, p. 116, issue 385.</ref> and opponents<ref>Khomeini, *Istifta'at*, vol. 3, p. 283, q. 7; Khamenei, *Ajwibat al-Istifta'at*, p. 300, q. 1259; Makarem Shirazi, *Istifta'at Jadid*, vol. 2, p. 609.</ref> among Shia jurists.

In addition to the cases mentioned, the attribution of a child to the sperm donor in the case of fertilization with a non-husband's sperm, the permissibility of women dancing for women and men for men in joyous gatherings, and the invalidity of the pro-forma marriage contract of a young girl in its common modern form are other jurisprudential opinions of Mohammad-Ebrahim Jannati.<ref>["Selected Fatwas"](http://jannaati.com/far/index.php?page=6), Ayatollah Jannati's Information Website.</ref>

==Intellectual Foundations==
A modern approach to ijtihad, the belief in the inadequacy of conventional ijtihad in solving problems and responding to new issues, and the emphasis on understanding the elements of time and place are considered the intellectual characteristics of Mohammad-Ebrahim Jannati.<ref>Jannati, "The Necessity of Evolution in Ijtihad in the Arena of Deduction," vol. 1, p. 399.</ref> In Jannati's view, through the evolution of ijtihad, the problem of applying a fixed Sharia to the variable of time and its conditions can be solved, and as long as such ijtihad is not applied to the sources and elements of deduction, it can never be responsive to the various events of material and spiritual life.<ref>Jannati, *Sources of Ijtihad from the Viewpoint of Islamic Schools of Thought*, vol. 1, introduction, p. 19.</ref>

===Extraction of Criteria===
Attention to subject identification (mawdu'-shinasi), discovering instances, and achieving the criteria (malakat) of rulings in the process of ijtihad are among Jannati's jurisprudential foundations. He considers achieving the criteria of rulings to be possible and, in the difference between the basis (manat) and the cause ('illah), believes that the cause of a ruling pertains to the level of reality and fact, but the basis of a ruling pertains to the level of proof and appearance from the evidence. Based on this, Jannati does not consider the cause of a ruling, which is the real benefit and harm, to be achievable, but he believes that the basis of a ruling is achievable because we have access to the level of appearance from the evidence.<ref>Jannati, "The Necessity of Evolution in Ijtihad in the Arena of Deduction," vol. 1, p. 409.</ref> For this reason, in order to expand the criteria of rulings, he has also issued a fatwa on the obligation of zakat on items other than the nine specified ones, citing the determination of zakat on horses by Imam Ali (a).<ref>Jannati, ["The Role of Time and Place in Ijtihad"](http://ensani.ir/fa/article/102607/), *Keyhan-e Andisheh*.</ref>

===Attention to the Spirit of the Sharia===
In his jurisprudential thought, Jannati considers qualities such as having a broad worldview and being aware of current politics to be among the necessary qualities for a mujtahid and believes that a mujtahid must understand the general spirit of the Sharia, which is based on tolerance and ease.<ref>Jannati, "The Necessity of Evolution in Ijtihad in the Arena of Deduction," vol. 1, p. 406.</ref>

===Avoidance of Precautionary Fatwas===
Mohammad-Ebrahim Jannati rejects the method of issuing precautionary fatwas in jurisprudence and considers it impossible to solve society's problems with this method, believing that clarity must be used in issuing fatwas. Citing that Islamic jurisprudence has definitive evidence and also citing verses indicating ease and leniency, such as "Allah intends for you ease and does not intend for you hardship,"<ref>Quran 2:185.</ref> he considers the precautionary method to be incompatible with the spirit of the Sharia and believes it will have undesirable reactions in society<ref>Jannati, *Fiqh and Time*, pp. 104-106, 108.</ref> and will fail to respond to many issues, including in the fields of medicine, art, modern currencies, and prescribed punishments (hudud) and retribution (qisas).<ref>Jannati, *Fiqh and Time*, p. 93.</ref>

===Disregard for the Fame of a Fatwa===
According to Jannati's views, although the efforts of past jurists and scholars must be appreciated, the necessity of obeying well-known opinions and fatwas and not deviating from the views and theories of predecessors is considered a failure to understand the spirit of the Sharia and is in contradiction with the legislation of the principle of ijtihad itself.<ref>Jannati, *Fiqh and Time*, pp. 51-52.</ref>

==Critique==
The jurisprudential-principled foundations of Mohammad-Ebrahim Jannati, while being innovative and attentive to the principle of evolution in ijtihad, suffer from a lack of fundamental theorization. Accordingly, among the works and writings of Mohammad-Ebrahim Jannati, a fundamental theory with such characteristics cannot be found. On the other hand, Jannati speaks of the necessity of breaking the barrier of emulation in ijtihadi discussions and new issues and emphasizes the necessity of ijtihad in all subjects, including issues related to banking, currency, interest, and partnership (mudarabah).<ref>Jannati, ["Ijtihadi Fiqh and the Reform of Seminaries from the Viewpoint of Imam Khomeini"](http://ensani.ir/fa/article/100567/), *Keyhan-e Andisheh*.</ref> However, in the arena of economic and social theorization, no scholarly work from this jurist is seen.

As Jannati specifies, if a jurist accepts Islam as a system and feels responsible, he must prepare a manual in accordance with new phenomena in the legal, economic, judicial, penal, political, governmental, and international relations dimensions.<ref>Jannati, ["Ijtihadi Fiqh and the Reform of Seminaries from the Viewpoint of Imam Khomeini"](http://ensani.ir/fa/article/100567/), *Keyhan-e Andisheh*.</ref> But in practice, he has not done so himself and has not theorized in these areas.

==Footnotes==
{{footnotes}}

==References==
{{References}}
* The Holy Quran
* Arezumandi, Abolqasem, "Negahi be Ketab-e Fiqh va Zaman-e Ayatollah Mohammad-Ebrahim Jannati," no. 49, Autumn 2006.
* Amin, Mehdi, "Jensiyat va Marja'iyyat," *Hawra'*, no. 34, 2009.
* Borujerdi, Mohammad-Taqi, *Nihayat al-Afkar: Taqrirat-e Dars-e Aqa Diya' al-Din 'Iraqi*, Qom: Mu'assasat al-Nashr al-Islami, 1417 AH.
* Tabrizi, Jawad, *Istifta'at Jadid*, vol. 2, Qom: Surur, 3rd ed., 2006.
* *Tawdih al-Masa'il-e Maraji'*, Qom: Daftar-e Intisharat-e Islami, 2013.
* Jannati Shahroudi, Mohammad-Ebrahim, *Fiqh va Zaman*, Qom: Nashr-e Ehyagaran, 2006.
* Jannati, Mohammad-Ebrahim, ["'Asr-e Takamol-e Ijtihad"](http://ensani.ir/fa/article/102204/), *Keyhan-e Andisheh*, no. 47, 1992.
* Jannati, Mohammad-Ebrahim, ["Bulugh az Didgah-e Fiqh-e Ijtihadi"](http://ensani.ir/fa/article/105431/), *Keyhan-e Andisheh*, no. 61, 1995.
* Jannati, Mohammad-Ebrahim, ["Te'ori-ye Taharat-e Dhati-ye Motlaq-e Insan dar Rastay-e Manabe'-e Ijtihad"](http://ensani.ir/fa/article/99655/), *Keyhan-e Andisheh*, no. 23, 1989.
* Jannati, Mohammad-Ebrahim, "Zarurat-e Tahavvol-e Ijtihad dar 'Arseh-ye Istinbat," *Majmu'eh-ye Asar-e Kongereh-ye Barrasi-ye Mabani-ye Fiqhi-ye Hazrat-e Imam Khomeini (s): Naqsh-e Zaman va Makan dar Ijtihad*, vol. 1.
* Jannati, Mohammad-Ebrahim, "Naqsh-e Zaman va Makan dar Ijtihad," *Keyhan-e Andisheh*, no. 50.
* Jannati, Mohammad-Ebrahim, "Honar va Ziba'i az Negah-e Mabani-ye Fiqh-e Ijtihadi," *Keyhan-e Andisheh*, no. 68, 1996.
* Jannati, Mohammad-Ebrahim, *Manabe'-e Ijtihad: Az Didgah-e Mazaheb-e Islami*, Tehran: Mu'asseseh-ye Keyhan, 1991.
* Jannati Shahroudi, "Fiqh-e Ijtihadi va Eslah-e Howzeh-ha az Didgah-e Imam Khomeini," *Keyhan-e Andisheh*, no. 29.
* Khamenei, Sayyid Ali, *Risalah-ye Ajwibat al-Istifta'at (Farsi)*, Tehran: Sherkat-e Chap va Nashr-e Beyn al-Melal, 2009.
* Khomeini, Sayyid Ruhollah Musavi, *Tawdih al-Masa'il (Muhashsha)*, Qom: Daftar-e Intisharat-e Islami, 8th ed., 1424 AH.
* Khoei, Sayyid Abul-Qasem, *Istifta'at (Farsi)*, reported by Sayyid Mahmud Madadi Musavi, vol. 1, Qom: Mu'assasat al-Khu'i al-Islamiyyah, 2002.
* "Zendeginameh," Ayatollah Jannati's Information Website, accessed: February 16, 2022.
* Soroush Mahallati, Mohammad, "Daramadi bar Barrasi-ye Qezavat-e Zanan," *Faslnameh-ye Fiqh-e Moqaran*, no. 2, 2013.
* Sistani, Sayyid Ali, *Minhaj al-Salihin al-Mu'amalat*, Qom: Maktab Ayatollah al-'Uzma al-Sayyid al-Sistani, 1415 AH.
* Shahid al-Thani, Zayn al-Din ibn 'Ali al-'Amili, *Al-Rawdah al-Bahiyyah fi Sharh al-Lum'ah al-Dimashqiyyah*, commentary by Sultan al-'Ulama, Qom: Daftar-e Tablighat-e Islami-ye Howzeh-ye 'Elmiyyeh-ye Qom, 1412 AH.
* Tabataba'i Yazdi, Sayyid Mohammad-Kazem, *Al-'Urwat al-Wuthqa fima Ta'ummu bihi al-Balwa (al-Muhashsha)*, researched by Ahmad Mohseni Sabzevari, Qom: Daftar-e Intisharat-e Islami, 1419 AH.
* Fazel Movahedi Lankarani, Mohammad, *Jami' al-Masa'il*, Qom: Amir, 11th ed., 2004.
* "Fatava-ye Montakhab," Ayatollah Jannati's Information Website, accessed: February 16, 2022.
* "Mohammad-Ebrahim Jannati," Khaneye Ketab website, accessed: February 16, 2022.
* Makarem Shirazi, Naser, *Istifta'at Jadid*, Qom: Madrasat al-Imam 'Ali ibn Abi Talib (a), 2nd ed., 1427 AH.
* Montazeri, Hossein-Ali, *Dirasat fi al-Makasib al-Muharramah*, Qom: Nashr-e Tafakkur, 1415 AH.
* Mehrizi, Mehdi, ["Ruykardha-ye Mazhabi dar Tarikh-e Mo'aser-e Iran be Zan"](http://ensani.ir/file/download/article/20120413182552-5176-2.pdf), *Majalla-ye Ayeneh-ye Pazhuhesh*, no. 91.
* Najafi, Mohammad-Hasan, *Jawahir al-Kalam*, Beirut: Dar Ihya' al-Turath al-'Arabi, 1404 AH.
* Navvab, Sayyid Abul-Hasan, "Naqd va Barrasi-ye Adelleh-ye Naqli-ye Taharat va Nejasat-e Ahl-e Ketab," *Pazhuheshha-ye Fiqhi*, no. 4, Winter 2014.
* Vahid Khorasani, Hossein, *Minhaj al-Salihin: Al-Mu'amalat*, vol. 3, Qom: Madrasat al-Imam Baqir al-'Ulum (a), 2007.
{{End}}

[[Category:Articles by Mohammad Mahdi Emadi]]
[[Category:Biographical Articles]]
[[fa:محمدابراهیم جناتی شاهرودی]]
[[ar:محمد إبراهيم جناتي الشاهرودي]]
[[Category:Contemporary Jurisprudence Articles]]

Sculpture

2026-09-20T07:28:51Z

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* '''abstract'''
'''Sculpture''' (in persian: [[:fa:مجسمه‌سازی|مجسمه‌سازی]]) has become a prominent topic in contemporary jurisprudence, gaining more attention due to the increasing use of sculptures and statues, leading to the emergence of new issues. Most Shi’a and Sunni jurists consensually consider the creation of sculptures depicting living beings, such as humans and animals, as prohibited (haram) based on narrations. However, the construction of sculptures depicting non-living entities has not received significant attention.
Some jurists, however, reject the absolute prohibition of crafting sculptures of living beings. They base their argument on criteria derived from narrations, deeming the prohibition applicable only to cases involving misleading from the path of God, idolatry, resembling the actions of the Creator, or imitating polytheists.
Exceptions to the prohibition of crafting sculptures of living beings include making incomplete or partial sculptures, as per the fatwa of [[Sayyid Abolqassem Musavi Khoei]], creating sculptures using machinery, according to the fatwa of [[Sayyid Ruhollah Musavi Khomeini]], and creating sculptures for medical education, as suggested by [[Naser Makarem Shirazi]]. In Shi’a jurisprudential works, there is no distinct section dedicated to sculpture, but relevant discussions are intertwined within chapters on prayer and trade. However, there are independent works dedicated to this subject.

== Exposition of the Issue ==
Sculpture is one of the significant and challenging contemporary jurisprudential issues<ref>1. Montazeri, Darasat Fi al-Makasib al-Muharammah, Vol. 2, p. 542.</ref>, alongside painting, and is addressed under the categories of “image,” “form,” and “statue” in Shi’a and Sunni narrative sources<ref>2. For example, see Hur Ameli, Wasa'il al-Shi'a, Vol. 5, pp. 174-176; Ahmad ibn Hanbal, Musnad Ahmad, Vol. 4, p. 65; Bukhari, Sahih al-Bukhari, Vol. 3, p. 136.</ref>. Some Shi’a jurists have emphasized the importance of sculpture in their works and have advocated for addressing its legal rulings. For instance, Makarem Shirazi highlights the use of sculpture in commemorating national<ref>Makarem Shirazi, Istifta’at -Jadid, Vol. 2, p. 239.</ref>, religious, and cultural figures in Islamic societies. Similarly, [[Mohammad Javad Fazel Lankarani]] sees sculpture as a tool for expressing truths and societal issues, which can be used to promote religious concepts and counter anti-religious propaganda. He also deems sculpture and related matters as necessities of human life<ref>Fazel Lankarani, Mouzu’at wa Melakat dar Fiqh Honar, p. 27.</ref>. Considering the circumstances of the time, the needs, and the necessities of the Islamic community, he sees it necessary for jurists to pay attention to these matters when deducing legal rulings<ref>Fazel Lankarani, Mouzu’at wa Melakat dar Fiqh Honar, p. 27.</ref>.

According to Makarem Shirazi, computerized robots and dolls also fall under the category of sculpture<ref>Makarem Shirazi, Istifta’at -Jadid, Vol. 3, p. 168.</ref>. [[Mohammad Ishaq Fayyaz]] regards the creation of sculptures of humans and their body parts as a tool for educating medical students, replacing the need for human dissection<ref>Faiyyaz, Istifta’at al-Shar'iyah, Vol. 1, p. 109.</ref>.
According to [[Alireza A'rafi]], the discussion on the prohibition and legal rulings related to sculpture was first introduced by Sheikh Mufid in the discourse of the jurists<ref>Abidinzadeh,Mujassameh wa Naqqashi: Taqrirat-e Dars-e Ayatollah A’arafi, p. 24.</ref>. There is no independent section dedicated to sculpture in Shi’a jurisprudential sources; rather, its legal rulings are discussed within chapters on purity (including rulings on wudu)<ref>Naraghi, Mustanad al-Shi'a, Vol. 2, p. 180.</ref>, prayer (clothing and location of prayer and rulings for mosques)<ref>Najafi, Jawahir al-Kalam, Vol. 8, p. 383.</ref>, and trade (impermissible trades)<ref>Rouhani, Fiqh al-Sadiq, Vol. 14, p. 218.</ref>. However, Sheikh Ansari, in his book “Kitab al-Makasib,” allocates a section to examining the juristic rulings of sculpture and the rulings related to earning income through it, under the general title “Inherently forbidden sources of income.”<ref>12. Sheikh Ansari, Kitab al-Makasib, Vol. 1, p. 183.</ref> The discussion on the juristic rulings of sculpture has made its way into the discourse of contemporary jurists through the teaching of this book and the commentaries written on it<ref>13. For example, see Tohidi Tabrizi, Misbah al-Fiqahah: Taqrirat-e Dars-e Ayatollah Khoei, Vol. 1, p. 353; Khomeini, Al-Makasib al-Muharramah, Vol. 1, p. 168; Montazeri, Darasat Fi al-Makasib al-Muharammah, Vol. 2, p. 541.</ref>.

=== Jurisprudential Discussions Focused on Sculptures of Living Beings ===
Jurists have separated the jurisprudential rulings on crafting sculptures of living beings from non-living ones and have primarily focused their discussion and jurisprudential examination on sculptures of living beings, while sidelining the issue of crafting sculptures of non-living beings. While most jurists have considered creating sculptures of non-living entities permissible, Sheikh Ansari believes that if the sculpture of non-living entities evokes admiration and impresses the viewer, creating such sculptures is problematic<ref>14. Sheikh Ansari, Kitab al-Makasib, Vol. 1, p. 188.</ref>.

Additionally, Ja’far Sobhani asserts that the statements of Abul Salah Halabi<ref>15. Halabi, Al-Kafi fi al-Fiqh, p. 281.</ref> and Ibn Barraj<ref>16. Ibn Barraj, Al-Muhadhab, Vol. 1, p. 344.</ref>, regarding the impermissibility of creating sculptures apply even to sculptures of non-living beings<ref>17. Ya'qoubi Isfahani, Al-Mawahib fi Tahreer Maksab al-Muharramah, p. 377.</ref>.
== Fatwas and Reasons for Prohibition and its Exceptions ==
According to Sheikh Ansari, the prohibition of crafting sculptures of living beings is generally accepted among Shi’a jurists<ref>18. Sheikh Ansari, Kitab al-Makasib, Vol. 14, p. 183.</ref>, a view also embraced by Sunni scholars, as stated by [[Sayyid Abolqassem Musavi Khoei]]<ref> Tohidi Tabrizi, Misbah al-Fiqahah, Vol. 1, p. 353.</ref>. Among contemporaries, jurists such as Sayyid Abolqassem Musavi Khoei<ref>20. Khoei, Tawzih al-Masa'il, p. 262.</ref>, [[Sayyid Ali Sistani]]<ref>21. Sistani, Tawzih al-Masa'il, p. 423.</ref>, Sayyid Ruhollah Khomeini<ref>22. Khomeini, Tahreer al-Wasilah, Vol. 1, p. 472.</ref>, [[Mohammad Ishaq Fayaz]]<ref>23. Fayyaz, Al-Istifta'at al-Shar'iyyah, Vol. 2, p. 13.</ref>, [[Sayyid Mousa Shubairi Zanjani]]<ref>24. Shobeiri Zanjani, Tawzih al-Masa'il, p. 80.</ref>, [[Naser Makarem Shirazi]]<ref>25. Makarem Shirazi, Istifta'at Jadid, Vol. 1, p. 158.</ref>, and [[Lotfollah Safi Golpaygani]]<ref>26. Safi Golpaygani, Tawzih al-Masa'il, p. 409.</ref> have all deemed crafting sculptures of living beings, such as humans and animals, as prohibited.

=== Evidence of Prohibition ===
Those jurists who advocate for the prohibition of crafting sculptures of living beings have focused solely on the matters mentioned in the textual evidence (Qur’an, narrations, and traditions), considering them the subject of the ruling and regarding them as what God intended. Most jurists who approve of sculpture creation do not consider these matters as independent but rather take into consideration broader concepts like “[practices] misleading from the path of God,” and criteria such as “idolatry,” “mimicking the Creator,” or “imitating polytheists” and have permitted creation of sculptures in the absence of these specific concepts and criteria. Accordingly, jurists have relied on narrative reasoning, namely narrations, and rational reasoning, like consensus [among jurists], to deduce the legal ruling on sculpture.
==== Narrations ====
The most important reason that jurists have relied on to examine the ruling of sculpting is narrations<ref> Najafi, Jawahir al-Kalam, Vol. 22, p. 41.</ref>. [[Sayyid Abolqassem Musavi Khoei]] considers narrations from both Sunni and Shia sources regarding the prohibition of sculpture living beings as beneficial<ref>28. Tohidi Tabrizi, Misbah al-Fiqahah, Vol. 1, p. 359.</ref>, meanwhile [[Sayyid Mohammad Sadeq Rohani]] has categorized such narrations into four main groups:

1. Narrations indicating an absolute prohibition of images, whether sculptures or paintings, and whether representing living or non-living beings. For example, a narration by from Imam Sadiq (AS) narrated by Muhammad ibn Muslim explicitly forbids all forms of image-making (sculpture and painting)<ref>29. Rouhani, Fiqh al-Sadiq, Vol. 14, p. 218; Nuri, Mustadrak al-Wasail, Vol. 13, p. 210.</ref>.

2. Narrations specifically prohibiting the creation of sculptures, regardless of whether they represent living or non-living entities<ref> Rouhani, Fiqh al-Sadiq, Vol. 14, p. 218.</ref>.

3. Narrations only prohibiting the depiction of living beings, regardless of whether they are sculptures or not. For instance, a narration from Sheikh Saduq attributed to Imam Sadiq (AS) where the Prophet (PBUH) prohibited both sculpting and painting animals on rings<ref>Rouhani, Fiqh al-Sadiq, Vol. 14, p. 221; Hur Ameli, Wasa'il al-Shi'a, Vol. 17, p. 297.</ref>.

4. Narrations exclusively emphasizing the prohibition of crafting sculptures of living beings. An example is an authentic narration from Imam Sadiq (AS), allowing the creation of images or sculptures only for non-living entities like trees, the sun, the moon, and similar objects<ref>Rouhani, Fiqh al-Sadiq, Vol. 14, p. 221; Hur Ameli, Wasa'il al-Shi'a, Vol. 17, p. 296.</ref>.

In the same vein, Sayyid Ruhollah Khomeini has enumerated another category of narrations. Given the necessity of observing the proportionality of the legal ruling to the subject, he asserts that prohibitions on sculptures or statues apply only to cases where they are used for worship<ref>33. Khomeini, Al-Makasib al-Muharramah, Vol. 1, p. 169.</ref>. For instance, narrations that label sculpting as one of the heinous acts, mention severe punishments for the perpetrator<ref>34. Nouri, Mustadrak al-Wasail, Vol. 13, p. 210.</ref>. According to Ayatollah Khomeini, the promised punishments in these narrations are so severe that they do not align with merely sculpting or painting. ''Sculpting, in terms of the intensity of its reprehensibility, is not as severe as major sins such as unjust killing and sodomy. According to Ayatollah Khomeini, the narrations that label sculpting as a heinous act deserving severe punishments must therefore be interpreted as referring specifically to sculptures used for worship, not to sculpting in general.'' Therefore, he concludes that the prohibitions in this category of narrations specifically target sculptures used as idols for worship<ref>Khomeini, Al-Makasib al-Muharramah, Vol. 1, p. 169.</ref>.

==== Consensus Among Jurists and its Critique ====
There has not been a consensus among jurists regarding the prohibition of sculpture. However, according to Hossein Ali Montazeri, the first person to claim consensus on this issue was [[Mohaqqeq Karaki]]<ref>Muhaqqeq Karaki, Jame' al-Maqasid, Vol. 4, p. 23.</ref> and no previous jurists have claimed consensus on this matter. This purported consensus has been criticized by jurists such as [[Sayyid Taqi Tabatabaei Qomi]] and Hossein Ali Montazeri. They argue that this consensus is not a clear or probable proof and believe that there are numerous narrations, transmitted through both Shia and Sunni sources, which may provide plausible evidence for the permissibility of sculpture creation. Hence, they contend that consensus is not an independent proof for this matter.
There is no consensus among jurists regarding the prohibition of sculpture. Sayyid Taqi Tabatabaei Qomi and Hossein-Ali Montazeri criticized the alleged consensus, claiming it to be a consensus with known origins<ref>Ijma’ al Madraki is a type of consensus whose origins are currently available in other jurisprudential sources i.e. Qur'an and Prophetic narrations.</ref> or probable evidence and believe that there is a likelihood that the evidence for the jurists' verdict on the prohibition of sculpture comes from numerous narrations in both Shia and Sunni sources. Therefore, they believe that this consensus does not qualify as an independent proof for this matter<ref>Montazeri, Darasat Fi al-Makasib al-Muharammah, Vol. 2, p. 557.</ref>.

=== Exceptions to the Prohibition ===
Despite the widely accepted prohibition on creating sculptures of living beings, some jurists have made exceptions, including:

1. Naser Makarem Shirazi: Embossed patterns seen in plasterwork, carving, toreutics, and similar crafts, as well as dolls, and items considered toys, sculptures created for deceiving enemies and are a strategic necessity, and sculptures made from various pieces used in medical education are exceptions to the prohibition<ref>Montazeri, Darasat Fi al-Makasib al-Muharammah, Vol. 2, p. 569; Tabatabai Qomi, Umdat al-Matalib fi Taliq 'ala al-Makasib, Vol. 1, p. 167.</ref>.

2. Sayyid Ruhollah Khomeini: If a sculpture is made using machinery, it is not considered prohibited because the evidence for the prohibition of sculpture only applies to cases where an individual manually creates sculptures<ref>Makarem Shirazi, Istifta'at Jadid, Vol. 3, p. 168.</ref>.

3. [[Sayyid Abolqassem Musavi Khoei]], [[Lotfollah Safi Golpaygani]], and [[Ja’far Sobhani]]: Creating incomplete or partial sculptures of humans and other animals is permissible. However, Lotfollah Safi Golpaygani deems crafting a sculpture that includes major parts such as the head, face, and chest as problematic, adding that crafting sculptures of hands, feet, or heads alone is not problematic<ref>Khomeini, Al-Makasib al-Muharramah, Vol. 2, p. 177.</ref>.

== Fatwas and Reasons for Permission ==
Many jurists who have issued fatwas permitting sculpture base the reason for its prohibition on criteria derived from narrations. They argue that if these criteria are not present, even crafting sculptures of living beings is considered permissible. Some of these viewpoints are as follows:

• According to Hussein Ali Montazeri, the prohibition of sculpture creation and similar acts in narrations is due to the fact that, at the time these narrations were issued, crafting sculptures was associated with worshipping beings other than God and associating partners to Him. Therefore, if sculpture does not serve this purpose and solely has artistic and cultural aspects, it is considered permissible<ref>Tohidi Tabrizi, Misbah al-Fiqahah, Vol. 1, p. 369; Safi Golpaygani, Jame' al-Ahkam, Vol. 1, p. 307; Ya'qoubi Isfahani, Al-Mawahib fi Tahreer Ahkam al-Makasib, p. 399.</ref>.

• [[Mohammad-Ebrahim Jannati Shahroudi]] considers sculpture creation as one of the valuable arts and argues that, since sculpture in the Islamic Republic of Iran today does not have any impure motives or polytheistic inclinations, the act is permissible<ref>Safi Golpaygani, Jame' al-Ahkam, Vol. 1, p. 308.</ref>. However, he emphasizes that crafting sculptures for the purpose of worship, veneration, and imitating idolaters and polytheists is prohibited<ref> Montazeri, Risaleh Istifta'at, Vol. 2, p. 325.</ref>.

• Mohammad Javad Moghniyah believes that if sculpture making is not done for illegitimate purposes but serves intellectual goals, such as highlighting the grandeur and glory of civilizations and their history, it is not problematic<ref> Janati, Nazariyeh Ijtihadi Tafri’ei va Tatbighi, p. 38.</ref>. He also believes that the fatwas prohibiting sculpture lack evidence and are simply precautionary<ref>Janati, Nazariyeh Ijtihadi Tafri’ei va Tatbighi, p. 38; Hosseini, Jawaz Mujassameh-Sazi va Naqashi, p. 213.</ref>.

• According to the fatwa of Yousef Saanei, sculpture making itself is not prohibited, and if it is done for intellectual purposes, it is permissible<ref>Mughniyeh, Falsafat Islamiyah, p. 921.</ref>.

• [[Mirza Javad Tabrizi]] believes that crafting sculptures of living and non-living beings is permissible, though it is recommended to avoid it<ref>Mughniyeh, Falsafat Islamiyah, p. 921.</ref>.

• Sayyid Ali Khamenei considers crafting sculptures of living beings as permissible and states that buying, selling, keeping, and even displaying them in exhibitions is not problematic<ref>"Mujassameh-sazi va Hunarhay Tajassumi," Website of Grand Ayatollah Sanei.</ref>.
== Issues Related to Sculpture ==
In addition to discussing the fundamental ruling on sculpture, jurists have also addressed related topics such as the “keeping, buying and selling of sculptures” and “destroying sculptures.”
=== Keeping, Buying, and Selling Sculptures: ===
Most jurists have considered buying, selling, and keeping sculptures, even those depicting living beings, as permissible<ref>Tabrizi, Tawzih al-Masa'il, p. 358.</ref>. According to Khoei, the available evidence only indicates the prohibition of sculpture making, and there is no evidence prohibiting its keeping, buying, and selling<ref>51. For example, see Khoei, Tawzih al-Masa'il, p. 356; Tohidi Tabrizi, Misbah al-Fiqahah, Vol. 1, p. 382; Sistani, Tawzih al-Masa'il, p. 423; Khomeini, Tawzih al-Masa'il, p. 275; Vahid Khorasani, Tawzih al-Masa'il, p. 582; Fazel Lankarani, Tawzih al-Masa'il, p. 395; Shobeiri Zanjani, Tawzih al-Masa'il, p. 80.</ref>. Among contemporary jurists, figures like [[Lotfollah Safi Golpaygani]] and Naser Makarem Shirazi have deemed buying, selling, and owning sculptures of living beings, earning a living out of it and earning wages by making sculptures as prohibited<ref> Tohidi Tabrizi, Misbah al-Fiqahah, Vol. 1, p. 240.</ref>. Sheikh Ansari considers keeping, buying, and selling sculptures of living beings as disliked (makruh)<ref>Sheikh Ansari, Kitab al-Makasib, Vol. 1, p. 197.</ref>.

=== Destroying Sculptures: ===
According to Alireza A’rafi, while explicit statements from early scholars regarding the prohibition to keep sculptures or the obligation to destroy them are not found, some jurists' statements can be interpreted to imply this obligation<ref>Abidinzadeh, Mujassameh wa Naqqashi: Taqrirat-e Dars-e Ayatollah A’arafi, p. 552.</ref>. The evidence that may indicate the obligation to destroy sculptures and the prohibition to keep them include:

• Just as creating a sculpture is considered disliked (makruh) by God, its existence is also disliked (makruh)<ref>Rouhani, Fiqh al-Sadiq, Vol. 14, p. 238.</ref>. Therefore, what implies the prohibition of sculpture-making also suggests the obligation to destroy it<ref>Sheikh Ansari, Kitab al-Makasib, Vol. 1, p. 193.</ref>. However, Sheikh Ansari believes that, based on narrations, only creating a sculpture is prohibited, but its existence is not disliked (makruh) in the view of God to conclude that destroying it is obligatory. Similarly, Mohammad Fazel Lankarani believes that there is no no necessary connection between the prohibition of sculpture and the necessity to destroy it<ref>Fazel Lankarani, Tafsil al-Shari'ah: Al-Makasib al-Muharramah, p. 157-158.</ref>.

• There are narrations where breaking sculptures is commanded<ref>Kulayni, Al-Kafi, Vol. 13, p. 233.</ref>. However, scholars like [[Sayyid Mohammad Sadeq Rohani]] and Mohammad Fazel Lankarani argue that these narrations specifically refer to cases where sculptures are used as idols for worship and veneration<ref>Rouhani, Fiqh al-Sadiq, Vol. 14, p. 240; Fazel Lankarani, Tafsil al-Shari'ah: Al-Makasib al-Muharramah, p. 142.</ref>.

== Perspective of Sunni Schools ==
According to the four main Sunni schools of thought, namely [[Maliki school]], [[Shafi'i school]], Hanafi, and Hanbali, creating sculptures of living beings, such as humans and animals, is considered prohibited<ref>al-Jaziri, Kitab al-Fiqh 'ala al-Madahib al-Arba'ah, Vol. 2, p. 40-41.</ref>. [[Abd al-Rahman al-Jaziri]], an Egyptian jurist and scholar, argues that if sculpture serves legitimate purposes such as education and training, it falls outside the realm of the prohibition<ref>al-Jaziri, Kitab al-Fiqh 'ala al-Madahib al-Arba'ah, Vol. 2, p. 40.</ref>. He mentions that some Sunni schools, like the Maliki school, consider the creation, buying, and selling of dolls for girls permissible, that they learn child-rearing through play<ref>al-Jaziri, Kitab al-Fiqh 'ala al-Madahib al-Arba'ah, Vol. 2, p. 40.</ref>.

== Study Resources ==
Original Article: Sculpture (Study Resources)
The topic of sculpture has been addressed in contemporary jurisprudential works in two ways:

1. Sculpture has been discussed alongside other jurisprudential topics in some works, including “Masbah al- Fiqaha" – jurisprudential lectures by [[Sayyid Abolqassem Musavi Khoei]], “Al-Makasib al-Muharramah" – written by Sayyid Ruhollah Khomeini, “Darasat fi al-Makasib al-Muharramah" – authored by Hussein Ali Montazeri, “Fiqh al-Sadiq" – composed by [[Sayyid Mohammad Sadeq Rohani]], “Al-Mawahib fi Tahrir Makasib al-Muharramah" – lectures of higher Islamic studies by Ja’far Sobhani.

2. Monographs: Independent works written specifically on the subject of sculpture, such as:

• Sculpture and Painting: Lectures of higher Islamic studies by Alireza A’rafi on the topic of sculpture and painting, transcribed by Alireza Abedinzadeh.

• Image and Sculpture in Shia Jurisprudence: A work by Sayyid Abbas Sayyid Karimi, written in Persian and spanning 224 pages, it explores the viewpoints of Shia jurists and their evidences regarding the legal rulings on images and sculpture.

=== References ===
{{References}}
# Ibn Barraj, Abdul Aziz, Al-Muhadhab, Qom, Islamic Publishing Institute, 1406 AH.
# Ahmad ibn Hanbal, Musnad Ahmad, Beirut, Al-Risalah Institute, 1416 AH.
# Bukhari, Muhammad ibn Ismail, Sahih Bukhari, Damascus, Dar Tawq al-Najah, 1st edition, 1422 AH.
# Tabrizi, Mirza Javad, Tawzih al-Masa'il, Qom, Hijrat Publications, 1382 SH.
# Tohidi Tabrizi, Muhammad Ali, Misbah al-Fiqahah: Taqrirat-e Dars-e Ayatollah Khoei, Qom, Davari Publications, 1st edition, 1377 SH.
# al-Jaziri, Abd al-Rahman, Kitab al-Fiqh 'ala al-Madahib al-Arba'ah, Beirut, Dar al-Kutub al-'Ilmiyah, 1424 AH.
# Janati, Muhammad Ibrahim, " Nazariyeh Ijtihadi Tafri’ei va Tatbighi," Political Science, No. 21, 1382 SH.
# Hur Ameli, Muhammad ibn Hasan, Wasa'il al-Shi'a, Qom, Moassaseh Al al-Bayt Alayh al-Salam le Ahya al-Turath, 3rd edition, 1416 AH.
# Hosseini, Ahmad, "Jawaz Mujassameh-sazi va Naqashi," Fiqh Magazine, No. 4 and 5, Summer and Autumn 1374 SH.
# Halabi, Abu Salah, Al-Kafi fi al-Fiqh, Isfahan, Maktabat al-Imam Amir al-Mu'minin Alayh al-Salam, 1st edition, 1403 AH.
# Khamenei, Sayyid Ali, Risaleh Ajwabat al-Istifta'at, Tehran, International Printing and Publishing Company, 1388 SH.
# Khomeini, Ruhollah, Al-Makasib al-Muharramah, Qom, Institute for Compilation and Publication of Imam Khomeini's Works, 1st edition, 1415 AH.
# Khomeini, Ruhollah, Tahreer al-Wasilah, Tehran, Institute for Compilation and Publication of Imam Khomeini's Works, 1379 SH.
# Khomeini, Ruhollah, Tawzih al-Masa'il, Tehran, Organization for Printing and Publishing the Works of the Ministry of Culture and Islamic Guidance, 9th edition, 1372 SH.
# Musavi Khoei, Sayyid Abolqassem, Tawzih al-Masa'il, Qom, Mehr Publications, 1412 AH.
# Rohani, Sayyid Mohammad Sadeq, Fiqh al-Sadiq, Qom, Imam Sadiq (AS) Seminary, 1412 AH.
# Sistani, Sayyid Ali, Tawzih al-Masa'il, Qom, Mehr Publications, 1415 AH.
# Shubairi Zanjani, Sayyid Mousa, Tawzih al-Masa'il, Qom, Wila Research Institute, 1384 SH.
# Sheikh Ansari, Morteza, Kitab al-Makasib, Qom, Bagheri Publications, 1415 AH.
# Safi Golpaygani, Jame' al-Ahkam, Qom, Office for the Compilation and Publication of the Works of Ayatollah Lotfollah Safi Golpaygani, 1385 SH.
# Safi Golpaygani, Lotfollah, Tawzih al-Masa'il, Mehr Publications, 1414 AH.
# Safi Golpaygani, Lotfollah, Hidayat al-‘Ibad, Qom, Dar al-Qur'an al-Karim, 1416 AH.
# Tabatabai Qomi, Sayyid Taqi, 'Umdat al-Matalib fi al-Ta'liq 'ala al-Makasib, Qom, Mahallati Publications, 1st edition, 1414 AH.
# Abedinzadeh, Ahmad, Mujassameh va Naqashi: Taqrirat Dars Kharij Alireza A'arafi, Qom, Eshraq va Erfan Institute, 1390 SH.
# Fazel Lankarani, Mohammad, Tafsil al-Shari'ah: al-Makasib al-Muharramah, Qom, Markaz Fiqhi Aimmah Athar (AS), 1st edition, 1385 SH.
# Fazel Lankarani, Mohammad, Tawzih al-Masa'il, Qom, Mehr Publications, 7th edition, 1374 SH.
# Fazel Lankarani, Mohammad Javad, " Mouzu’at wa Melakat dar Fiqh Honar," Elahiyat-e Honar Journal, No. 10, Autumn 1396 SH.
# Fayyaz, Mohammad Ishaq, Al-Istifta'at al-Shar'iyyah, Al-Kalamat al-Tayyibah, 1st edition, 1434 AH.
# Kulayni, Muhammad ibn Ya'qub, Al-Kafi, Qom, Dar al-Hadith, 1st edition, 1387 SH.
# Mujassameh-sazi va Hunarhay Tajassumi, Website of Grand Ayatollah Sanei, Date of Access: 30 Shahrivar 1400 SH.
# Mohaqqeq Karaki, Ali ibn Hussein, Jame' al-Maqasid, Qom, Al al-Bayt Institute, 2nd edition, 1414 AH.
# Mughniyah, Muhammad Jawad, Falsafat Islamiyyah, Beirut, 6th edition, 1993 CE.
# Makarem Shirazi, Naser, Estifta'at Jadid, Qom, Madrasat al-Imam Ali ibn Abi Talib (AS), 2nd edition, 1427 AH.
# Montazeri, Hossein Ali, Darasat Fi al-Makasib al-Muharammah, Qom, Tafakkor Publications, 1415 AH.
# Montazeri, Hossein Ali, Risalah-e Estifta'at, Tehran, Tafakkor Publications, 1373 SH.
# Najafi, Sheikh Muhammad Hasan, Jawahir al-Kalam, Beirut, Dar Ihya al-Turath al-Arabi, 7th edition, 1362 SH.
# Naraghi, Mullah Ahmad, Mustanad al-Shi'ah fi Ahkam al-Shari'ah, Qom, Al al-Bayt Institute, 1415 AH.
# Nouri, Hossein ibn Muhammad Taqi, Mustadrak al-Wasail, Qom, Al al-Bayt Institute, 1408 AH.
# Vahid Khorasani, Hossein, Tawzih al-Masa'il, Qom, Madreseh Baqer al-Ulum (AS), 1421 AH.
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== Footnotes==
{{Footnotes}}
[[fa:مجسمه‌سازی]]
[[ar:صناعة التماثيل]]
[[Category:Contemporary Jurisprudence Articles]]

Majority vote

2026-09-20T07:27:21Z

Enadmin:

{{Author
|author = Alireza Salehi
|compiler =
}}
*'''Abstract'''

'''Majority vote (in persian: [[:fa:رأی_اکثریت|رأی اکثریت]])''' , as a global value, refers to the thought and deliberation of most individuals in a group or a country who share common characteristics. Today, in many countries, the selection of the political system, government officials, as well as the processes of [[legislation]] and decision-making are based on the majority vote. The issue of the majority vote is a new phenomenon in the Islamic world that has faced numerous positive or negative reactions from religious thinkers, especially Shia and Sunni jurists.

Shia jurists have presented several views regarding the validity or invalidity of the majority vote and whether it is binding on everyone. Absolute invalidity, absolute validity, and conditional validity of the majority vote are the viewpoints that Shia jurists have adopted on this matter, and each theorist has substantiated their view by citing rational arguments, verses, and narrations. According to Masoud Emami, a researcher in political jurisprudence, the difference in views regarding the legitimacy or illegitimacy of the majority vote is due to a difference in its foundational basis.

== Explanation of the Issue and Its Position ==
Resorting to public opinion and preferring the majority vote in collective decision-making has become a global value today;<ref>Emami, "The Rational Validity of the Majority Vote based on the Right to Self-Determination," p. 105</ref> to the extent that many political systems in the world use the title of [[Democracy]], which is based on the will and vote of the majority, to gain legitimacy.<ref>Fouladvand, *Kherad dar Siyasat*, 1998, p. 363.</ref> Today, by including the word "majority" in the definition of democracy (the most common type of government in the world), it is considered a type of government organized according to the principles of popular sovereignty, political equality, consultation with all people, and majority rule.<ref>Ranney, *Hukumat, Ashna'i ba 'Elm-e Siyasat*, 1995, p. 138.</ref> Democracy is usually depicted as synonymous with the rule of the majority of the people.<ref>Ayoubi, *Aksariyat Cheguneh Hukumat Mikonad*, 2000, p. 11.</ref> In other words, the source of power and the enactment of laws in democratic governments is the vote of the majority of the people.<ref>Alam, *Tarikh-e Falsafeh-ye Siyasi-ye Gharb*, 1997, p. 12.</ref> Furthermore, the acceptance of democratic governance in Islamic religious societies has further increased the importance of the issue of the majority vote.<ref>Salehi, *Demokrasi va E'tebar-e Ra'y-e Aksariyat dar Islam*, 2005, p. 60.</ref>

In many countries, the selection of the type of government, the [[constitution]], government executive officials, members of parliament, etc., as well as the process of [[legislation]] and decision-making, are based on the majority vote.<ref>Emami, "The Rational Validity of the Majority Vote based on the Right to Self-Determination," p. 105; Salehi, *Demokrasi va E'tebar-e Ra'y-e Aksariyat dar Islam*, 2005, pp. 63-64.</ref> The majority vote, alongside items such as [[political participation]], [[separation of powers]] (distribution of power), and public oversight of the performance of government officials, is considered one of the most important elements of a [[republican system]] or democratic system.<ref>Shakeri and Rajaei, "The Validity and Position of the Majority Vote in the Political System of Islam," p. 394; Moradi and Mousazadeh, "The Legitimacy of Republicanism in Islam," p. 98.</ref>

===Conceptualization===
Majority vote is defined as the opinion, view, thought, idea, belief, and deliberation of most individuals in a group, organization, institution, or the people of a country who share common characteristics in terms of language, religion, race, etc.<ref>Dehkhoda, *Loghatnameh-ye Dehkhoda*, under "Ra'y" and "Aksariyat"; Amid, *Farhang-e Farsi-ye Amid*, under "Ra'y" and "Aksariyat"; Anvari, *Farhang-e Bozorg-e Sokhan*, under the words "Ra'y" and "Aksariyat".</ref> The terms majority and minority refer to the quantity and number of groups without considering their quality. In Islamic teachings, the term minority has been used to refer to the People of the Book as opposed to the Muslim majority; but today, these two terms are mostly used in political competitions and legislative processes. Groups and individuals who gain the support of half plus one of the citizens are called the absolute majority, and their rivals are called the absolute minority. However, it is usually difficult to obtain an absolute majority, for which reason scholars have introduced the term relative majority, which means the largest unit of a group, regardless of whether it is more than half or not.<ref>Salehi, *Demokrasi va E'tebar-e Ra'y-e Aksariyat dar Islam*, 2005, p. 61.</ref>

=== Position in Contemporary Jurisprudence ===
The management of society based on the people's vote and considering the opinion of the majority in the administration of public affairs are among the emergent topics and issues in the Islamic world, the history of which, especially in Iran, dates back to the victory of the Constitutional Revolution.<ref>Khanmohammadi, "The Position of the Majority Vote in the Quran with Emphasis on the Views of Ayatollah Mousavi Ardebili," pp. 59-60.</ref> The entry of new concepts and phenomena into the Islamic world has usually been met with positive or negative reactions from religious thinkers, especially Shia and Sunni jurists. Concepts and phenomena such as freedom, equality, [[elections]], separation of powers, [[human rights]], and including the majority vote, are considered among these challenging topics in the contemporary era.

The issue of the majority vote has been examined in jurisprudential books under chapters such as ijtihad and taqlid,<ref>Makarem Shirazi, *Al-Fatawa al-Jadida*, pp. 12-13.</ref> [[partnership contract]],<ref>Fazel Lankarani, *Jami' al-Masa'il*, pp. 276-277.</ref> judiciary,<ref>Makarem Shirazi, *Al-Fatawa al-Jadida*, p. 133.</ref> and discussions related to [[elections]] or the selection of a ruler,<ref>Montazeri, *Dirasat fi Wilayat al-Faqih*, vol. 1, pp. 551-571; Husseini Ha'eri, *Al-Marja'iyya wa al-Qiyada*, pp. 43-44.</ref> determining the [[Wali al-Faqih]],<ref>Hosseini Tehrani, *Wilayat al-Faqih fi Hukumat al-Islam*, vol. 3, p. 183; Araki, *Nazariyyat al-Hukm fi al-Islam*, pp. 332-333.</ref> and in the process of [[legislation]].<ref>Na'ini, *Tanbih al-Ummah*, pp. 115-117; Hosseini Shirazi, *Al-Fiqh, al-Qanun*, p. 195.</ref>

Examining religious teachings regarding resorting to public opinion and preferring the majority vote is a serious concern among contemporary jurists today, and numerous studies have been conducted in this field. By examining the views of contemporary jurists regarding the validity or invalidity of the majority vote in the administration of public affairs, as well as the formulation of general and specific laws and regulations, three viewpoints can be extracted: absolute invalidity of the majority vote, absolute validity of the majority vote, and conditional validity of the majority vote based on different foundations.<ref>Emami, "The Rational Validity of the Majority Vote based on the Right to Self-Determination," p. 106; Shakeri and Rajaei, "The Validity and Position of the Majority Vote in the Political System of Islam," p. 399.</ref>

== Shia Jurisprudence ==
The legitimacy of the position of the people and the majority vote in shaping political systems in the Islamic world, formulating laws, and selecting the ruler of the Islamic society, as well as the binding nature of the majority vote on everyone, has been a point of contention among Shia jurists. Absolute invalidity, absolute validity, and conditional validity of the majority vote are the viewpoints that Shia jurists have adopted on this matter. Each of the theorists has substantiated their view by citing rational arguments, verses, and narrations.
===Invalidity===
{{Main|Invalidity of Majority Vote in Government}}
Jurists who believe in the invalidity of the majority vote maintain that only the government, law, and ruler designated by the Lawgiver are legitimate, and they consider taking the majority vote as a religious innovation (*bid'ah*).<ref>Nouri, "Risalat Hurmat-i Mashrutah," vol. 1, p. 106; Tabrizi, "Risalat Kashf al-Murad," p. 132.</ref> According to this group of theorists, giving precedence to the opinion of a group of people, even if they are in the majority, over the opinion of others, even if they are in the minority, without a reason, is contrary to the judgment of reason.<ref>Kharqani, "", pp. 226, 240; Hosseini Tehrani, *Wilayat al-Faqih fi Hukumat-i Islami*, 1421 AH, vol. 3, pp. 190-192.</ref> Believers of this view have cited several categories of Quranic verses that condemn the majority to reject the position of the majority vote in the political system of Islam.<ref>Allamah Tabataba'i, *Al-Mizan*, 1390 AH, vol. 4, p. 103; Makarem Shirazi, *Tafsir-e Nemuneh*, 1992, vol. 14, p. 281; Mousavi Khalkhali, *Al-Hakimiyyah fi al-Islam*, 1425 AH, p. 111; Hosseini Tehrani, *Wilayat al-Faqih fi Hukumat al-Islamiyyah*, 1418 AH, vol. 3, pp. 183-184; Mesbah Yazdi, *Nazariyeh-ye Siyasi-ye Islam*, 2012, p. 282.</ref> Citing some narrations indicating that the Infallibles (a) were not obligated to act according to consultation with others<ref>Barqi, *Al-Mahasin*, 1371 AH, vol. 2, p. 601.</ref> and even sometimes acted contrary to the opinion of their advisors,<ref>Nahj al-Balaghah, saying 321, p. 531.</ref> are other reasons cited by those who believe in the invalidity of the majority vote in governmental matters.<ref>Moradi and Mousazadeh, "The Legitimacy of Republicanism in Islam," p. 103.</ref>

===Validity===
{{Main|Validity of Majority Vote in Government}}
Jurists who believe in the validity of the majority vote in governmental matters consider the acceptance and legitimacy of the government, the ruler, and governmental laws, and even the actualization of the ruler's sovereignty, to be dependent on the consent and vote of the majority.<ref>Imam Khomeini, *Sahifeh-ye Imam*, 2006, vol. 20, p. 459; Montazeri, *Hukumat-i Dini va Huquq-i Insan*, 1429 AH, pp. 37-38.</ref> Citing the jurisprudential principle of "adopting preferences in case of conflict,"<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 115.</ref> the principle of the ugliness of preferring the inferior over the superior (the ugliness of preferring the minority over the majority),<ref>Montazeri, *Dirasat fi Wilayat al-Faqih*, 1409 AH, vol. 1, p. 554; vol. 1, p. 564.</ref> and the majority vote as a means to achieve the people's interest<ref>Dehkhwareqani, "Risalat Tawdih al-Maram," p. 667.</ref> are the most important rational arguments cited by this group of thinkers. By linking the majority vote with the concept of [[Shura]] (consultation), whose legitimacy is established by the text of the Quran,<ref>Na'ini, *Tanbih al-Ummah*, 2003, p. 116.</ref> and also by resorting to the practice of the Prophet of Islam (s) and Imam Ali (a), they believe that in case of a difference of opinion in public affairs, and assuming the equal legitimacy of the parties, one must rely on the majority vote out of the necessity of preserving the system, and the religious reason for the obligation to follow the majority vote is the same evidence that refers to the [[obligation to preserve the system]].<ref>Na'ini, *Tanbih al-Ummah*, 2003, pp. 116-117; Montazeri, *Dirasat fi Wilayat al-Faqih*, 1409 AH, vol. 1, pp. 553-554; Firahi, *Fiqh va Siyasat dar Iran-e Mo'aser*, 2011.</ref>

This group of thinkers, to prove the legitimacy of the majority vote, have cited verses from the Quran, including those referring to the concept of Shura, such as verse 159 of Surah Al-Imran and verse 38 of Surah ash-Shura, as well as verses referring to the guardianship of believers over one another.<ref>Quran 9:71.</ref><ref>Ma'refat, *Jame'eh-ye Madani*, 1999, pp. 73-75; Salehi Najafabadi, *Wilayat-e Faqih, Hukumat-e Salehan*, 2001, p. 278; Ardebili, *Hampay-e Enqelab*, 2006, pp. 464-465.</ref> Citing narrations from Imam Ali (a) who made the actualization of his guardianship over the people conditional on their consent and acceptance,<ref>Ibn Shahr Ashub, *Manaqib*, 1379 AH, vol. 1, p. 225; Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," pp. 71-73.</ref> the [[accepted narration of 'Umar ibn Hanzalah]],<ref>Kulayni, *Al-Kafi*, 1429 AH, vol. 1, pp. 168-171.</ref> and the narration on the necessity of following the great majority (*al-sawad al-a'zam*)<ref>Nahj al-Balaghah, sermon 127, p. 184.</ref> are other textual proofs cited by this group of jurists.<ref>Moradi and Mousazadeh, "The Legitimacy of Republicanism in Islam," p. 108; Shakeri and Rajaei, "The Validity and Position of the Majority Vote in the Political System of Islam," p. 400.</ref>

===Conditional Validity===
In contrast to the two views on the validity or invalidity of the majority vote, [[Abdollah Javadi-Amoli]], a contemporary jurist and exegete, believes in the conditional validity of the majority vote by distinguishing between the establishment of right and the discernment of right. According to him, in the Islamic perspective, truth originates from God Almighty, and only the divine word is the reference for determining it; for this reason, following the majority in the sense of adopting their beliefs and moral values has been condemned.<ref>Javadi-Amoli, *Wilayat-e Faqih*, 2000, p. 90.</ref> According to Javadi-Amoli, the majority can only be used as a method and a decision-making rule for resolving social conflicts and can be effective in discerning the right, not in establishing the right. He explains that divine revelation explains and establishes the right, and in the implementation of the right, when discerning the right is difficult and experts disagree, the majority vote will be the criterion.<ref>Javadi-Amoli, *Wilayat-e Faqih*, 2000, p. 92.</ref>

Sayyid Mohammad Sadeq Rouhani, a contemporary jurist, also makes the validity of the majority vote conditional on the ruler's lack of knowledge regarding the goodness or corruption of some governmental affairs. In his view, the majority vote is by no means valid in electing the Islamic ruler<ref>Rouhani, *Nizam-e Hukumat dar Islam*, 1978, pp. 28-31.</ref> and the law must also be approved through the Lawgiver and the process of ijtihad.<ref>Rouhani, *Nizam-e Hukumat dar Islam*, 1978, pp. 69-70.</ref> Only where there is no religious ruling on public affairs and social and political issues, and the Islamic ruler has no knowledge of their goodness or corruption, should he act according to the decision of the majority of experts, and he considers this method to be in accordance with the practice of the wise (*sirat al-'uqala*), which Islam has also confirmed.<ref>Rouhani, *Nizam-e Hukumat dar Islam*, 1978, pp. 70-72.</ref>

===Differentiating Views of Proponents and Opponents Based on Foundational Differences===
According to Masoud Emami, a researcher of religious issues, by carefully examining the views of the proponents and opponents of the validity of public opinion and the majority vote in collective decision-making, it is concluded that the difference in their views has varied based on the difference in their foundations.<ref>Emami, "The Validity of the Majority Vote based on the Discovery of Truth and Other Foundations," p. 74.</ref> In several articles on the validity or invalidity of the majority vote,<ref>["The Validity of the Majority Vote based on the Right to Self-Determination"](https://jf.isca.ac.ir/article_3008.html) in Fiqh Journal 72; ["The Validity of the Majority Vote in Light of the Book and the Sunnah"](http://jf.isca.ac.ir/article_178_5ac91f57ec3e90ffe7ef6eca3bec1041.pdf) in Fiqh Journal 77; ["The Validity of the Majority Vote based on the Discovery of Truth and Other Foundations"](https://jf.isca.ac.ir/article_2981_9e52e886c4529a1797a033ab76905d27.pdf) in Fiqh Journal 75.</ref> by proposing several foundations such as "the right to self-determination," "the discovery of truth," "religious legitimacy," "expediency," and "acceptability," he believes that the majority vote is valid in all areas of collective decision-making only based on the right to self-determination; but on the basis of the other mentioned foundations, it is invalid or its validity can be proven in a limited scope.<ref>Emami, "The Validity of the Majority Vote based on the Discovery of Truth and Other Foundations," p. 73.</ref>

According to this view, the validity of the majority vote based on the right to self-determination is considered equivalent to human's existential freedom (including all voluntary actions individually or collectively).<ref>Emami, "The Rational Validity of the Majority Vote based on the Right to Self-Determination."</ref> This means that the existential freedom of human beings in collective life is conditional on their acting upon the obligatory duties of reason and religion; therefore, the establishment and preservation of any government, even the government of the Infallibles, without the will and consent of the people, lacks rational and religious legitimacy,<ref>Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," p. 54.</ref> and in other words, the consent of the people is one of the causes of the legitimacy of the government. Now, if the right of individuals to choose freely in collective life leads to a conflict of desires and the disruption of social order, a solution is needed to preserve both desirable human ideals, namely freedom of choice and social life, together. In times of conflict between these two ideals, due to the necessities of social life, we should abandon the primary principle of existential freedom for all human beings to the extent of that necessity, and by preferring the majority vote over the minority, only this minority is forced to comply with laws or a government they do not believe in, and less harm is done to the freedom of choice.<ref>Emami, "The Rational Validity of the Majority Vote based on the Right to Self-Determination."</ref>

He considers the validity of the majority vote based on the right to self-determination to be confirmed by numerous verses of the Quran,<ref>Quran 3:20; 5:92, 99; 13:40; 42:48; 16:35, 82; 24:54; 29:18; 36:17; 64:12.</ref> because God considers the Prophet's duty to be only the delivery of the message and seeks to negate any compulsion of people to follow the truth, and has left the choice of the path of truth or falsehood to the will of the people.<ref>Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," pp. 54-56.</ref> In this view, the tradition of the Prophet (s) and the Infallible Imams (a) is also considered a clear proof of the validity of the majority vote; because although they considered themselves chosen and appointed by God, they never imposed this view on the people and did not consent to rule over the people unless they were assured of the backing of public consent and the majority vote for their government.<ref>Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," p. 62.</ref>

Based on this view, the verses of the Quran that opponents have cited for the invalidity of the majority vote are related to the foundation of the discovery of truth, not the right to self-determination. This means that the Quran does not consider the majority of the society it addresses to be right in terms of belief, morality, and behavior, and in discerning the truth, it considers their vote to be invalid. Based on this, the verses of the Quran that condemn the majority do not undermine the validity of the majority vote based on the right to self-determination, and the majority vote, regardless of whether it follows truth or falsehood, takes precedence over the minority vote.<ref>Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," p. 58.</ref> Also, based on this view, the verses that emphasize the necessity for believers to follow God and His Messenger and forbid them from choosing another matter are seen as stating the duty of believers in the realm of legislation. In other words, these verses negate the legislative freedom of believers before God, whereas the validity of the majority vote based on the right to self-determination is related to existential freedom, not legislative freedom.<ref>Emami, "The Validity of the Majority Vote in Light of the Book and the Sunnah," p. 60.</ref>

==Study Resources==
{{Main|Majority Vote (Study Resources)}}
In contemporary jurisprudential books, especially those that deal with issues of governance in Islam and the [[Wilayat al-Faqih|issue of Wilayat al-Faqih]], sections have been dedicated to the issue of the majority vote. One of the first works that has substantiated the position of the majority vote based on religious teachings is the book [[Tanbih al-Ummah wa Tanzih al-Millah]] by [[Mirza Mohammad-Hossein Gharavi Na'ini]]. In the first volume of the book [[Dirasat fi Wilayat al-Faqih wa Fiqh al-Dawlah al-Islamiyyah]] by [[Hussein-Ali Montazeri]], there are also references to this discussion.

Regarding the validity and position of the majority vote in contemporary Shia jurisprudence, books and articles have also been written independently. Among these books is [[The Rational and Religious Validity of the Majority Vote]] by Masoud Emami. Articles such as "The Validity of the Majority Vote in Light of the Book and the Sunnah" by Masoud Emami, "The Validity and Position of the Majority Vote in the Political System of Islam" by Ruhollah Shakeri and Hossein Rajaei, "The Position of Minority and Majority in Islamic Political Thought" by Abolfazl Mousavian, and "The Validity of the Majority Vote" by [[Kazem Qazizadeh]] have also examined this issue from the perspective of Shia jurisprudence.
*
{{end}}

==Footnotes==
{{footnotes}}

==References==
{{References}}
* The Holy Quran
* *Nahj al-Balaghah*, (edited by Subhi al-Salih), Qom, Hijrat Publications, 1414 AH.
* Ibn Shahr Ashub, Muhammad ibn 'Ali, *Manaqib Al Abi Talib (a)*, Qom, 'Allamah Publications, 1379 AH.
* Araki, Mohsen, *Nazariyyat al-Hukm fi al-Islam*, Qom, Majma' Andisheh-ye Islami, 1425 AH.
* Imam Khomeini, Ruhollah, *Sahifeh-ye Imam*, Tehran, Markaz-e Nashr-e Athar-e Imam Khomeini, 2006.
* Emami, Masoud, "E'tebar-e Ra'y-e Aksariyat dar Parto-e Ketab va Sonnat" [The Validity of the Majority Vote in Light of the Book and the Sunnah], *Majalla-ye Fiqh*, no. 77, 2013.
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{{End}}

[[Category:Articles by Alireza Salehi]]
[[fa:رأی اکثریت]]
[[ar:رأي الأغلبية]]
[[Category:Contemporary Jurisprudence Articles]]

The unlegislated zone

2026-09-20T07:26:55Z

Enadmin:

{{Author
|author = Mohammad Mahdi Emadi
|compiler =
}}

[[Category:Articles by Mohammad Mahdi Emadi]]

'''The unlegislated zone''' (in Arabic: [https://ency.feqhemoaser.com/fa/view/%D9%85%D9%86%D8%B7%D9%82%D8%A9_%D8%A7%D9%84%D9%81%D8%B1%D8%A7%D8%BA منطقة الفراغ]) is a jurisprudential theory proposed by [[Sayyid Muhammad Baqir Sadr]] in contemporary Shiʿi Islamic law. According to this theory, the Lawgiver grants the ruler of an Islamic society the authority to enact binding regulations in areas that are devoid of obligatory religious rulings, namely within the sphere of legally permissible acts, in order to secure the public interests of governance. The theory aims to provide a framework for harmonizing Islamic law with structural transformations in social life.

Scholars of Islamic jurisprudence describe Mintaqat al-Farāgh as the outcome of a systemic and governmental approach to fiqh. Its significance is commonly attributed to its emphasis on the objectives of the Sharia (maqāṣid al-sharīʿa), the universality of Islamic rulings, and its role as a conceptual foundation for legislation in the contemporary era.

In support of this theory, al-Sadr refers to the [[Verse of Ulu al-Amr|Qurʾanic verse on obedience to those in authority (Qurʾan 4:59)]] as well as several narrations concerning the governmental rulings of the Prophet Muhammad and Imam ʿAli. On this basis, legislation in areas lacking obligatory religious rulings is understood to be delegated to the Wali al-Amr (the legitimate authority of the community) or, in modern contexts, to legislative institutions, provided that such legislation does not conflict with other established Islamic rulings.

Although the formulation of the Mintaqat al-Farāgh theory is considered an innovation of Muhammad Baqir al-Sadr, its intellectual roots can be traced to earlier works, such as ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'' by [[Mirza Mohammad-Hossein Gharavi Na'ini]], as well as to discussions found in Sunni jurisprudence under the title Mintaqat al-ʿAfw (the zone of pardon). The theory has also been subject to criticism by some jurists, who have raised objections concerning its compatibility with the comprehensiveness of the Sharia, the exclusivity of legislation to the Lawgiver, and the scope of authority granted to non-legislators.

== Explanation and Introduction of the Theory ==
Mintaqat al-Faragh is a theory by [[Sayyid Muhammad Baqir Sadr]] in Shia jurisprudence that grants the ruler of an Islamic society the authority to enact binding laws in cases where there is no obligatory religious ruling, with the aim of securing the interests of the state.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 41.</ref> This theory is aimed at explaining a mechanism for harmonizing Sharia with temporal and spatial changes. According to Sadr, the primary rule and practical principle regarding actions is permissibility (Ibahah), which also includes the subjects of Mintaqat al-Faragh. He believes that for any activity or action for which there is no legislative text indicating its prohibition or obligation, the Wali al-Amr can prohibit it or command it.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 43.</ref> Although in Sadr's view, God's intrinsic authority includes potential duties as well, he nevertheless practically accepts the ruling of exoneration (Bara'ah) based on religious evidence such as "Allah does not charge a soul except [with that] which He has given it."<ref>Sadr, ''Durus fi 'Ilm al-Usul'', vol. 2, p. 37.</ref>

From Sadr's perspective, the Prophet of God had two positions: the position of delivering the message and propagating God's rulings, and the position of guardianship and leadership over the people. Based on this, the Prophet's commands and prohibitions in his capacity as a messenger are unchangeable legislative texts, while his commands and prohibitions in his capacity as a ruler are considered changeable rulings. Therefore, the Prophet, from his first position, i.e., messenger, explained and propagated the fixed divine rulings, and from his position as the ruler of the Islamic society, he issued rulings in the Mintaqat al-Faragh by considering the interests and benefits of the society.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 414.</ref>

=== Background ===
The theorist of Mintaqat al-Faragh, [[Sayyid Muhammad Baqir Sadr]], was a Shia mujtahid and thinker residing in Iraq.<ref>Ha'iri, ''The Life and Thoughts of Shahid Sadr'', p. 35.</ref> Nevertheless, the groundwork for this theory also existed in the views of other scholars, such as in ''Tanbih al-Ummah'' by [[Mirza Mohammad-Hossein Gharavi Na'ini]].<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 91.</ref> According to [[Ali Akbar Ha'iri]], although this title is an innovation of Sadr, its content has been discussed among both Sunnis and Shias in the past.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", p. 111.</ref>

Among Sunnis, the theory of Mintaqat al-'Afw (the zone of pardon), which Sunni scholars sometimes also refer to as Mintaqat al-Faragh,<ref>Al-Qaradawi, ''Awamil al-Si'ah wa al-Murunah'', p. 11.</ref> refers to a domain in which no text has been issued by the Lawgiver. This theory is very close to the discussions raised by Na'ini and Sadr in contemporary Shia jurisprudence; for example, Nur al-Din ibn Mukhtar al-Khadimi (born 1963) in his book ''Al-Ijtihad al-Maqasidi''.<ref>Al-Khadimi, ''Al-Ijtihad al-Maqasidi: Hujjatuhu, Dawabituhu, Majalatuhu'', p. 173.</ref> Abd al-Karim Hamdawi has also discussed Mintaqat al-Faragh and made it the focus of a significant part of his book.<ref>Al-Hamdawi, ''Thulathiyyat Fiqh al-Ahkam al-Sultaniyyah'', pp. 473–487.</ref>

=== Difference from Secondary Rulings ===
The difference between rulings issued in the Mintaqat al-Faragh and secondary rulings is that secondary rulings have a stipulated reference in the Sharia, such as the [[Rule of No-Harm]], necessity (Idtirar), and hardship ('Usr wa Haraj). However, a governmental ruling in the Mintaqat al-Faragh does not trace back to a stipulated case in the Sharia, and what plays a role in its determination is a concept that Sadr calls "the authority of ijtihadi legislation"; meaning the ruler's authority to enact binding laws in the domain of permissible acts. According to the Mintaqat al-Faragh theory, the legislator enacts laws for the essence of subjects with their primary titles, rather than applying secondary rules to subjects in this zone.<ref>Hekmatnia, "An Explanation of the Mintaqat al-Faragh Theory", pp. 114–115.</ref>

== Legislation in Mintaqat al-Faragh ==
According to Muhammad Baqir al-Sadr in the treatise ''[[A Preliminary Jurisprudential Glimpse into the Draft Constitution of the Islamic Republic of Iran|A Preliminary Jurisprudential Glimpse]]'', for matters that are not subject to a decisive ruling of obligation or prohibition, the legislative power, as the representative of the nation, approves a law that is in the interest of the people and does not conflict with the fundamentals of Islamic law. In his view, the scope of this legislation includes cases that the Sharia has left to the discretion of the people themselves and has given the legally responsible person freedom of action to the extent that it does not conflict with other Islamic rulings.<ref>Sadr, ''Lamhah Fiqhiyyah Tamhidiyyah'', pp. 15, 13.</ref> Sadr also believes in his book ''Iqtisaduna'' that the Islamic economic system has two main parts; one part, which constitutes the objectives of Islam, is its fixed and unchangeable part, and the other part is the flexible part of this system, in which Islam has delegated legislation to the Wali al-Amr.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, pp. 41, 42.</ref> Sadr claims that God, in the Book, by virtue of "Obey Allah and obey the Messenger and those in authority among you," has given a special authority to the Wali al-Amr and has made his commands binding. In his view, the zone in which the Wali al-Amr can exercise authority has various domains, one of which is the arena of legislation.

[[Mirza Mohammad-Hossein Gharavi Na'ini]] also, in his treatise ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'', in the discussion of the method of legislation, has referred to stipulated and non-stipulated rulings. According to him, in the domain of stipulated matters, the duty of the legally responsible is specified in the Sharia and one must adhere to it; but in the domain of non-stipulated matters, due to not being included under any specific rule of the Sharia, this domain is delegated to the Wali al-Naw'i (general guardian), and the laws related to this domain are subject to change by the legislative body according to the exigencies of interests and harms.<ref>Na'ini, ''Tanbih al-Ummah wa Tanzih al-Millah'', pp. 134–137.</ref>

== Importance ==
The importance of the Mintaqat al-Faragh theory is attributed to its attention to the universality of Islamic rulings and structural changes in human social life, a governmental view of jurisprudence, adherence to the objectives of the Sharia, and alignment with the systematization of jurisprudence. According to jurisprudential researchers, the most important reason for the significance of this theory is its function as a basis and support for the legislative system in the contemporary era.<ref>Al-Dukhi, ''Mintaqat al-Faragh al-Tashri'i'', p. 29; Ayati, "Legislation of Governmental Rulings in the Mintaqat al-Faragh Domain", p. 104.</ref>

=== Universality of Islamic Rulings ===
According to researchers like Sayyid Salam Zayn al-'Abidin, the change in structures and the speed of developments in human social life have made the need for theorization in the domain of jurisprudential variables more necessary than ever; for this reason, Sadr proposed the Mintaqat al-Faragh theory with this approach. According to him, Sadr's emphasis on extracting theory from texts and filling the vacuum areas is to such an extent that some have called his jurisprudence "the jurisprudence of theory" (Fiqh al-Nazariyyah).<ref>Zayn al-'Abidin, "Imam Shahid Sadr, from the Jurisprudence of the Text to the Jurisprudence of Theory", pp. 67–116.</ref> [[Kazim al-Haeri]], one of Sadr's students, has also considered economic developments in different times and places and the universality of Islamic rulings as Sadr's reason for defending the Mintaqat al-Faragh theory. Haeri has written that over time, due to technological progress, the relationship between man and nature changes, and Islam must provide solutions commensurate with them.<ref>Ha'iri, "Islamic Economics and the Method of Its Discovery from the Perspective of Shahid Sadr", p. 29.</ref>

=== Governmental View of Fiqh ===
A governmental view of jurisprudence and moving beyond individual jurisprudence is another dimension of the importance of the Mintaqat al-Faragh theory in contemporary jurisprudence. The Mintaqat al-Faragh theory, with a governmental view of jurisprudence, seeks to secure the general interests of the system. Traditional jurisprudence mostly considers the subject of jurisprudence to be the act of the individual legally responsible person; but contemporary jurisprudence and the Mintaqat al-Faragh theory go beyond the perspective of individual jurisprudence and enter the discussion of social jurisprudence and the foundations of managing society and its politics.

=== Alignment with the Systematization of Fiqh ===
The relationship between the Mintaqat al-Faragh theory and the system-building power of jurisprudence is another aspect of this theory's importance. From Sadr's perspective, the school of Islam, in addition to stating individual rulings, claims to build structures and systems in line with the general objectives of religion. Objectives that take the country's legislative status out of the model of pure individualism and move it towards systematization. Sadr says in his book ''Iqtisaduna'' that the view of Islam should be a systemic one, and one should avoid a piecemeal approach in examining its rulings. For example, to understand the Islamic rulings in the field of economics in any era, the entire Islamic economic system must first be examined and the main objectives governing this system extracted; then, according to these objectives, detailed rulings should be implemented considering the requirements of each era.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 380.</ref>

=== Adherence to the Objectives of the Sharia ===
The Mintaqat al-Faragh theory, while preserving the religious texts, considers the supervision of the objectives and goals of the Sharia over these texts to be necessary. [[Mohammad Mahdi Shams al-Din]], a religious scholar and political theorist, in stating the importance of the Mintaqat al-Faragh theory, while listing evidences with the name "higher evidences of legislation," such as the verses of subjugation, the command to justice and benevolence, the prohibition of indecency and extravagance, and the prohibition of arrogance and corruption, emphasizes the foundational nature of this evidence in legislation in the vacuum areas.<ref>Shamseddine, ''Majal al-Ijtihad wa Manatiq al-Faragh al-Tashri'i'', p. 42.</ref>

[[Ali al-Sistani]], a contemporary Marja', has also spoken of the concept of higher objectives, both in the Mintaqat al-Faragh and in the theory of spiritual harmony, and believes: The conformity of evidence with the Book and the Sunnah does not mean conformity with its generalities and universal statements; rather, conformity is in terms of the objectives and spirit of the Sharia, meaning the high objectives of the Sharia, such as justice, equality, benevolence, negation of hardship, which are mentioned in the Quran, act as an indicator and a planner.<ref>Rabbani, ''Mabahith al-Hujaj'', p. 36.</ref>

In Sadr's view, the objectives of the religion govern the vacuum domain, and the ruling issued in this domain must be compatible with the objectives of the Sharia and the goals governing all legislations.<ref>Sa'di and Tamaddon, "A New Investigation into the Role of Sharia Objectives in the Mintaqat al-Faragh", p. 223.</ref> He refers to these objectives as general indicators (Mu'ashshirat 'Ammah).<ref>Sadr, ''Al-Islam Yaqud al-Hayat'', p. 61.</ref>

== Reasons for the Theory ==
To prove his theory, Muhammad Baqir al-Sadr has cited verse 59 of Surah al-Nisa regarding obedience to the Wali al-Amr, and several narrations about the governmental rulings of the Prophet of Islam (s) and Imam Ali (a).

=== The Verse of Ulu al-Amr ===
To prove the authority of the Wali al-Amr to enact binding rulings in areas devoid of religious law, Muhammad Baqir al-Sadr has cited the [[Verse of Ulu al-Amr|'''Qurʾan 4:59''']] regarding obedience to the command of those in authority in line with obedience to the command of God and the Prophet. In his view, this verse clearly indicates the obligation to obey the guardians of authority. Sadr believes that Muslims have no disagreement that the guardians of authority in an Islamic society possess legitimate authority and power, and the disagreement is only about their conditions and attributes. Sadr does not comment on the specific referent of the Wali al-Amr during the era of occultation and only fundamentally believes that the guardian and ruler of the society has the authority to enact laws in areas devoid of religious ruling in accordance with his governmental capacity.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 43.</ref> In Sadr's interpretation of the said verse, the Sharia has granted such a right to the Wali al-Amr that, based on it, in cases where there is no obligation from the Sharia, he can issue rulings in the Mintaqat al-Faragh according to the exigencies of time and place and in accordance with the fundamental objectives of the Islamic Sharia.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", pp. 113–114.</ref>

=== Governmental Rulings of the Prophet (s) and Imam Ali (a) ===
In addition to verse 59 of Surah al-Nisa, Sadr cites several narrations that lead to a better understanding of the Mintaqat al-Faragh and explain its importance. In this regard, he refers to the Prophet's (s) prohibition of withholding surplus water and pasture,<ref>Kulayni, ''Al-Kafi'', vol. 10, p. 483.</ref> the prohibition of buying fruits that have not yet ripened,<ref>Kulayni, ''Al-Kafi'', vol. 10, p. 89.</ref> the prohibition of leasing land under specific conditions,<ref>Tirmidhi, ''Sunan al-Tirmidhi'', vol. 2, p. 421.</ref> and the orders of Imam Ali (a) regarding price fixing and recommendations concerning merchants.<ref>Majlisi, ''Bihar al-Anwar'', vol. 33, p. 607.</ref> He believes that none of these orders were among the original obligations and prohibitions in the Sharia, but rather stemmed from the authority of the Islamic ruler in this domain.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 420.</ref>

== Jurists' Criticisms of the Mintaqat al-Faragh Theory ==
The Mintaqat al-Faragh theory has been criticized by some jurists. Contradiction with the comprehensiveness of the Sharia, the exclusivity of legislation to the Lawgiver, and conflict with the evidence for legislative permissibility are among the criticisms leveled against this theory.

=== Contradiction with the Comprehensiveness of the Sharia ===
Among the criticisms raised against the Mintaqat al-Faragh theory is its contradiction with the comprehensiveness of the religion of Islam. [[Naser Makarem Shirazi]], a contemporary Marja' al-Taqlid, says in the book ''Buhuth Fiqhiyyah Hammah'': Imami Shia scholars believe that no matter is devoid of a religious ruling, and the divine ruling for every matter has been stated in the Sharia, whether this has reached us through a text (Nass) or through general rules and principles; therefore, there is no room left for legislation by a jurist or a non-jurist, and there is no vacuum or deficiency in the Sharia.<ref>Makarem Shirazi, ''Buhuth Fiqhiyyah Hammah'', p. 515.</ref> While discussing the legislative powers of the Islamic ruler, he believes that the Wali al-Faqih has the right to legislate in specific cases that are of an executive nature and are akin to applying general principles to specific instances. For example, preserving the lives of Muslims is a general law in the Sharia, and traffic laws are accepted in line with this general law.<ref>Esmaeili, "A Reflection on the Mintaqat al-Faragh Theory", p. 52.</ref>

Muhammad Baqir al-Sadr himself addressed this criticism and responded: The existence of a zone lacking a ruling is not considered a deficiency or negligence in legislation; because the Sharia has not left this zone to its own devices; rather, it has allowed the Islamic ruler to enact rulings for it according to the circumstances. In this respect, the Mintaqat al-Faragh theory leads to the dynamism of ijtihad and empowers the Sharia to respond to contemporary needs.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 417.</ref>

=== Impossibility of Legislation by a Non-Lawgiver ===
The exclusivity of the authority to legislate to God and the belief in the impossibility of legislation by a non-Lawgiver is another criticism leveled against the Mintaqat al-Faragh theory.<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 91.</ref> [[Husayn Ali Montazeri]], a contemporary Marja' al-Taqlid, in explaining this exclusivity, has said: Legislation belongs only to God, and besides Him, there is no legislator or lawgiver; therefore, no individual, except the prophets and imams, has the right to legislate. In other words, a ruling has three stages: first, legislation by God; second, deduction and extraction by jurists; third, planning and execution. Therefore, there is no other basis for justifying legislation by someone other than God.<ref>Montazeri, ''Mabani-ye Fiqhi-ye Hukumat-e Islami'', p. 120.</ref>

In response to this criticism, [[Ali Akbar Ha'iri]] believes that the command to obey the Wali al-Amr in the Mintaqat al-Faragh domain is valid as long as he legislates within the framework determined by the Sharia. He provides three types of regulations for filling the Mintaqat al-Faragh: 1. Regulations for determining the Wali al-Amr, 2. Regulations for delineating the Mintaqat al-Faragh domain, 3. Regulations for law-making and legislation. With these three regulations, the jurist's legislation is placed in tandem with God's legislation, and there will be no conflict.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", pp. 117–124.</ref>

=== Conflict with the Evidence of Legislative Permissibility ===
According to some researchers, accepting the enactment of law in the Mintaqat al-Faragh for the ruler of an Islamic society may conflict with some verses and narrations (such as verse 87 of Surah al-Ma'idah) that have established the domain of permissible acts.<ref>Hekmatnia, "An Explanation of the Mintaqat al-Faragh Theory", p. 111.</ref> Because when the Lawgiver has left His servants free in a ruling and saw no interest in its obligation or prohibition, or did not consider their object to have an interest at the level of obligation or prohibition, for what reason can the ruler or anyone else declare the same thing obligatory or forbidden for the people? Therefore, accepting the ruler's authority to enact a ruling in the Mintaqat al-Faragh will lead to opposition to the divine ruling.<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 94.</ref>

== Study Resources ==
{{Main|Mintaqat al-Faragh (Study Resources)}}
The issue of Mintaqat al-Faragh, besides being discussed in the works of Sayyid Muhammad Baqir Sadr and [[Mirza Mohammad-Hossein Gharavi Na'ini]], is also addressed in parts of books related to issues of governance and the legislative system in Islam. Books and articles have also been written independently on this theory in contemporary Shia jurisprudence. Among these books are ''Mintaqat al-Faragh dar Qanunguzari-ye Islami'' (Mintaqat al-Faragh in Islamic Legislation) by Abd al-Majid Qa'edi Lamerdi in Persian, and the book ''Mintaqat al-Faragh al-Tashri'i: Dirasah Muqaranah li-Ahamm al-'Anasir al-Marinah fi al-Shari'ah al-Islamiyyah'' by Falah Abd al-Hasan al-Dukhi in Arabic. Articles such as "The Theory of Mintaqat al-Faragh and Human Authority" by [[Haydar Hubballah]], "The Nature and Evidences of Mintaqat al-Faragh in Islamic Legislation" by Ali Rahmani-Fard and Abd al-Majid Qa'edi Lamerdi, and "Mintaqat al-Faragh as a Theory of Legislation" by Hasan Amini-Pazhuh and [[Mohsen Esmaeili]], have also examined this issue from the perspective of Shia jurisprudence.

== footnotes ==
{{footnotes}}
== references ==
{{references}}
* Ayati, Sayyid Mohammad Reza; Setayesh, Kazem; Salem Rahbar, Farzaneh, "Legislation of Governmental Rulings in the Mintaqat al-Faragh Domain by the Wali al-Faqih", ''Faslnameh-ye Pazhuheshha-ye Enqelab-e Islami'', no. 31, 2019.
* Esmaeili, Mohsen; Asghari Shurestani, Mohammad Reza; Rashidi, Reza, "A Reflection on the Mintaqat al-Faragh Theory from the Perspective of Shahid Sadr and its Criticisms and Shortcomings", ''Faslnameh-ye Danesh-e Hoquq-e 'Umumi'', no. 8, 2014.
* Tirmidhi, Abu 'Isa Muhammad, ''Sunan al-Tirmidhi'', Beirut: Dar al-Fikr, 1403 AH.
* Ha'iri, Ali Akbar, "Mintaqat al-Faragh fi al-Tashri' al-Islami" [The Unlegislated Zone in Islamic Legislation], ''Risalat al-Taqrib'', no. 11, 1417 AH.
* Hurr al-'Amili, Muhammad ibn al-Hasan, ''Wasa'il al-Shi'ah'', Qom: Mu'assasat Al al-Bayt 'Alayhim al-Salam li-Ihya' al-Turath, 1409 AH.
* Ha'iri, Kazim, "Islamic Economics and the Method of Its Discovery from the Perspective of Shahid Sadr", ''Faslnameh-ye Eqtesad-e Islami'', no. 1, 2001.
* Ha'iri, Kazim, ''The Life and Thoughts of Shahid Sadr'', translated by Hasan Taromi, Tehran: Ministry of Culture and Islamic Guidance, 1996.
* Husseini, Ali, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", ''Do-Faslnameh-ye Andisheh-ye Sadeq'', Tehran, no. 6 & 7, 2002.
* Hekmatnia, Mahmoud, "An Explanation of the Mintaqat al-Faragh Theory", ''Faslnameh-ye Eqtesad-e Islami'', no. 8, 2002.
* Hakim, Mohammad Mahdi, ''Al-Taharrruk al-Islami fi al-'Iraq'', Baghdad: Markaz Shuhada' Al al-Hakim, al-Dirasat al-Tarikhiyyah wa al-Siyasiyyah, 1989.
* Al-Hamdawi, Abd al-Karim Muhammad Muti', ''Thulathiyyat Fiqh al-Ahkam al-Sultaniyyah, Ru'yah Naqdiyyah lil-Ta'sil wa al-Tatwir'', n.p., n.d., 2003.
* Al-Khadimi, Nur al-Din ibn Mukhtar, ''Al-Ijtihad al-Maqasidi: Hujjatuhu, Dawabituhu, Majalatuhu'', Doha: Wizarat al-Awqaf wa al-Shu'un al-Islamiyyah, 1998.
* Khosrowpanah, Abdolhossein, "The Logic of Induction from the Perspective of Shahid Sadr", ''Faslnameh-ye Zehn'', no. 18, 2004.
* Al-Dukhi, Falah Abd al-Hasan, ''Mintaqat al-Faragh al-Tashri'i: Dirasah Muqaranah li-Ahamm al-'Anasir al-Marinah fi al-Shari'ah al-Islamiyyah'', Qom: Markaz-e Beyn al-Melali-ye Tarjomeh va Nashr-e al-Mustafa, 2015.
* Zolfaghari, Mohammad; Seyyediyan, Sayyid Mahdi, "Governmental Jurisprudence; What, Why, How", ''Faslnameh-ye Ma'refat-e Siyasi'', no. 7, 2012.
* Rabbani, Mohammad Ali, ''Mabahith al-Hujaj'', (A Report of the Lectures on Usul by Sayyid Ali al-Sistani), n.p., 1437 AH.
* Eslami, Reza, "The Usuli School of Martyr Ayatollah Sadr", ''Pazhuhesh va Howzeh'', no. 27, 2006.
* Zayn al-'Abidin, Salam, "Imam Shahid Sadr, from the Jurisprudence of the Text to the Jurisprudence of Theory", ''Faslnameh-ye Qadaya Islamiyyah Mu'asirah'', Baghdad: Markaz Dirasat Falsafat al-Din, no. 1, 1415 AH.
* Sa'di, Hasan-Ali; Tamaddon, Hamidreza, "A New Investigation into the Role of Sharia Objectives in the Mintaqat al-Faragh (Relying on the Views of Shahid Sadr, Ayatollah Shams al-Din, and Ayatollah Sistani)", ''Do-Faslnameh-ye Pazhuheshnameh-ye Miyan-reshte'i-ye Fiqhi'', no. 2, 2019.
* Shamseddine, Mohammad Mahdi, "The Scope of Ijtihad and the Unlegislated Zones", Beirut, ''Majallat al-Minhaj'', no. 4, 1417 AH.
* Sadr, Muhammad Baqir, ''Lamhah Fiqhiyyah Tamhidiyyah 'an Mashru' Dustur al-Jumhuriyyah al-Islamiyyah fi Iran'', Tehran: Bonyad-e Be'that, 1980.
* Sadr, Muhammad Baqir, ''Eqtesad-e Ma'' [Our Economics], translated by Sayyid Abolqasem Hosseini (Zharfa), Qom: Nashr-e Dar al-Sadr, 2014.
* Sadr, Muhammad Baqir, ''Al-Islam Yaqud al-Hayat'' [Islam Leads Life], Qom: Nashr-e Dar al-Kitab al-Islami, 2004.
* Sadr, Muhammad Baqir, ''Durus fi 'Ilm al-Usul'', Qom: Mu'assasat al-Nashr al-Islami, n.d.
* Sadr, Muhammad Baqir, ''Mabahith al-Usul'', Qom: Maktab al-A'lam al-Islami, 1408 AH.
* Ziya'i-far, Sa'id, "A Governmental Approach in Fiqh", ''Majalleh-ye 'Ulum-e Siyasi'', no. 53, 2011.
* Fadlallah, Mohammad Hussein, "Shahid Sadr in the Context of Thought and Action", ''Shahed-e Yaran'', no. 18, 2007.
* Al-Qaradawi, Yusuf, ''Awamil al-Si'ah wa al-Murunah'', Cairo: Dar al-Sahwah li-l-Nashr wa al-Tawzi', 1992.
* Kulayni, Muhammad ibn Ya'qub, ''Al-Kafi'', Qom: Dar al-Hadith, 1430 AH.
* Majlisi, Muhammad Baqir, ''Bihar al-Anwar'', Beirut: Dar al-Ihya' al-Turath, 1403 AH.
* Makarem Shirazi, Naser, ''Buhuth Fiqhiyyah Hammah'', Qom: Entesharat-e Madraseh Imam 'Ali ibn Abi Talib, 1422 AH.
* Montazeri, Husayn Ali, ''Mabani-ye Fiqhi-ye Hukumat-e Islami'' [The Jurisprudential Foundations of Islamic Government], translated by Mahmoud Salavati and Abolfazl Shakouri, Qom: Mu'asseseh-ye Keyhan, 1428 AH.
* Na'ini, Muhammad Husayn, ''Tanbih al-Ummah wa Tanzih al-Millah'', edited and corrected by Sayyid Javad Vara'i, Qom: Bustan-e Ketab, 2003.
* Najafi, Mohammad Hasan, ''Jawahir al-Kalam fi Sharh Shara'i' al-Islam'', Beirut: Dar Ihya' al-Turath al-'Arabi, 1983.
* Larijani, Mohammad Sadeq, "The Theory of the Right of Obedience", ''Pazhuheshha-ye Usuli'', no. 1, 2002.
{{end}}

[[fa:منطقة الفراغ]]
[[ar:منطقة الفراغ]]
[[Category:Contemporary Jurisprudence Articles]]

Cosmetic Surgery

2026-09-20T07:26:30Z

Enadmin:

{{Author
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* '''abstract'''
Cosmetic surgery is one of the new topics of medical jurisprudence been mentioned in some contemporary jurisprudence books and in response to inquiries. Most contemporary jurists are of the opinion that if cosmetic surgery has a rational purpose, it is permissible to perform it. Accrdingly, [[Hossein Ali Montazeri]] and [[Mohammad Fazel Lankarani]] considered providing beauty as one of the rational purposes, and on the other hand, [[Mohammad Taqi Behjat]] and [[Mohammad Ali Alavi Gorgani]] did not consider cosmetic surgery as permissible if it is only for the purpose of enhancing beauty. According to the jurists, if cosmetic surgery is only for the sake of beauty, it is not permissible if it requires an indecent look and touch. In the statement of the ruling on the license of cosmetic surgery, rules such as the originality of obscenity and the rule of dominance have been cited.
However, the opponents of cosmetic surgery consider cosmetic surgery unlawful based on [[Verse 119 of Surah Nesa|verse 119 of Surah Nesa]]. All contemporary Shiite jurists are of the opinion that if cosmetic surgery requires looking at and touching strangers (Na-Mahram), it is not permissible. Although the jurists have allowed cosmetic surgery by a na-mahram doctor in certain circumstances. Moreover, if cosmetic surgery requires difficulties in performing obligatory acts such as ablution and bathing, it should be avoided.
==Justification of the Problem and its Importance==
Cosmetic surgery (Arabic: beautifying operation (Amalyat Al-Tajmil)) is the act of beautifying, correcting, and improving the appearance of the human face or body, [1] removing excess body parts, such as excess fat and hair transplants, etc. [2] Cosmetic surgery is divided into three categories according to its goals and objectives:

# Functional reconstructive surgery: to remove organ defects that are vitally necessary.
# Reconstructive surgery: for the sole purpose of correcting or beautifying a part of the body that has an abnormal or defective appearance.
# Pure cosmetic surgery, to enhance and increase beauty, or sometimes because of an objective necessity (spiritual-psychological) such as increasing self-confidence or "body ugliness disorder" and resulting depression.[3]
===The Significance of the Problem in Contemporary Jurisprudence===
Cosmetic surgery is one of the emerging branches of medicine which jurists have mentioned in some contemporary jurisprudence books and in response to inquiries about its rulings. [4] There is no separate chapter in jurisprudence texts dedicated to cosmetic surgery, but the related issues are discussed in several chapters such as marriage, [5] or in ablution and bath related to the surgically operated part, [6] and to the rulings of opinion and na-mahram touch.[7]
===History and Context of formation===
Cosmetic surgery in its current form was not mentioned in the past narrative and jurisprudential books. It is one of the emerging medical issues been included in the thinking and studies of contemporary jurists in order to examine the Shariah ruling. However, Ibn Saʿd in his book Tabaqat al-Kubara narrates a tradition based on which the Prophet (PBUH) told a person named "Arfaja bin Asad bin Karb Otaredi" who lost his nose in one of the wars of the Jahili period and made a silver nose for himself. It smelled bad, so he ordered to make a gold nose and use it.[8]
==Cosmetic Surgery from the Perspective Primitive Statement==
===Permissibility Theory as the First Commandment Ent===
According to most contemporary Shiite jurists, cosmetic surgery is permissible by itself and without regard to other titles.[9] However, jurists such as [[Golpayegani]],[10] [[Montazeri]],[11] [[Fazel Lankarani]],[12] [[Safi Golpayegani]],[13] [[Saneʿi]] [14] and [[Nouri Hamedani]] [15] are of the opinion that cosmetic surgery is permissible as long as it is for rational purposes. Montazeri, Fazel Lankarani and Saneʿi have considered the provision of beauty as one of the rational goals and purposes. [16] Therefore, if a person performs cosmetic surgery for the sake of fame and showing off, or because of jealousy, his / her operation will not be subject to the ruling of permission. [17] The license of surgery. Beauty is documented by the following evidence: [18]
====Authenticity Permissibility (Isalat Al-Ebaha)====
If a jurist doubts whether something is permissible (halal) or forbidden (haram), and after searching and studying, s/he does not find a Shariah reason for its sanctity, he puts the principle on its blasphemy or non-sanctity.[19] Therefore, since there is no Shariah reason like verse, narration it is not a rational reason and consensus on the sacredness of cosmetic surgery, the principle is on its permissibility and inviolability.
====The Rule of Dominance====
According to [[The rule of domination|the rule of domination]] (which jurists consider to be valid by referring to the Qur'an and hadiths, the way of thinking and consensus), every owner has full control over his/ her property [20] and some jurists such as Imam Khomeini and [[Momen Qommi|Momen Qomi]] generalized this rule to the law and population and considered the control of a person over himself and his body parts as subject to this rule. [21] Accordingly, if there is no Shariah prohibition, a person can take possession of his/ her body and perform cosmetic surgery for himself/ herself.[22]
===The Theory of Sanctity as the First commandment===
[[Mohammad Taqi Bahjat]], one of the contemporary jurists, is of the opinion that if cosmetic surgery is purely for beauty, it is an obligatory precaution to avoid it. [23] Mohammad Ali Alavi Gorgani also rejected the permissibility of nose surgery in general in response to an inquiry about the Shari'a ruling of nose surgery for the purpose of beauty. [24] The reason mentioned for opposing cosmetic surgery is the verse of change of creation: [25]
====The verse of Change of Creation====
Cosmetic surgery is a kind of change in God's creation and according to the verse, I command them to change God's creation" [26] Changing God's creation is one of Satan's temptations and commands and is forbidden, so cosmetic surgery is prohibited and forbidden (haram). On the other hand, [[Nasser Makarem Shirazi]] is of the opinion that, firstly, in this case, many actions such as surgery to separate the extra finger, surgery to separate conjoined twins should be considered forbidden (haram), while none of them are haram.[27] Secondly. The verse is related to monotheism and polytheism, and the meaning of "God's creation" in this verse is nature; that is, I tempt people to turn Allah's nature into disbelief.[28]
====Traditions====
One of the reasons for the sanctity of cosmetic surgery is the traditions that forbid changes in human appearance; like the narration narrated by Sheikh Sadiq from Imam Sadiq (a.s.), in which the Prophet cursed several groups of women. Among them are the women who cut another woman's facial hair, shave another woman's teeth, attach one woman's hair to another woman's head, tattoo another woman's face and body, and women who are subjected to these acts [29]. ] However, some contemporary Shiite jurists, such as [[Seyyed Abul Qasim Khoei]] and [[Seyyed Taqi Tabatabai Qomi]], have considered this narration as a weak document.[30]

According to Sheikh Ansari and Khoei, the application of some hadiths [31] indicates the permissibility of attaching the hair of a woman's head to the head of another woman[32]. According to [[Sheikh Ansari]], the other cases mentioned in the narration are condemned to hatred, considering the unity of the context and also considering the
traditions that considered the absolute permissible of adornment for women.[34]
====The Validity of Prohibition( Esalat Al-Hadhar)====
Nasser Makarem Shirazi has criticized it by pointing out that it may be thought that cosmetic surgery is flawed by citing the impermissibility of occupying God's property. According to this view, on the one hand, cosmetic surgery is considered a type of possession of the body, which is the property of God, and, on the other hand, no permission has been given for this type of possession, so cosmetic surgery is not permissible. [35]
According to Makarem Shirazi, firstly, according to [[Verse 29 of Surah Al-Baqarah|verse 29 of Surah Al-Baqarah]], [note 1] God created all the creatures of the earth for man, and man can take possession of it, unless there is a Shariah reason for prohibiting this occupation.[36] ] Secondly, on the premise of accepting that everything and even the human body is the property of God and should not be seized without His permission, for this seizure, according to the Sharia rule, " Everything is permissible (halal) for you until you know that it is absolutely forbidden ( haram)[37].The lawgiver should give the permission. [38] According to this rule, since we do not have any knowledge about the sanctity of cosmetic surgery, then this operation is condemned to be permissible.
==Cosmetic Surgery from the Perspective of Second Commandment==
The second commandment about cosmetic surgery can be reviewed in several cases:
===Cosmetic surgery in case of emergency===
According to all contemporary jurists, if there is a necessity and emergency for cosmetic surgery, even if the doctor is na-mahram (stranger), its operation is permissible.[39] If cosmetic surgery is only for improving beauty, it does not reach the level of emergency and only when the aspect to have restorative and therapeutic treatment, such as treatment of burns or skin tears, or cases of this kind that there is no other way to do it for the health of the body and mind, it is an [[Emergency|emergency]] and it is permissible from the point of view of jurisprudence. [40] However, Hossein Ali Montazeri states that although cosmetic surgery is not effective in the health of the patient's body, but its non-implementation may cause intolerable mental illness.[41]
===Cosmetic surgery in case of damage===
Jurisprudents such as Seyyed Ruhollah Khomeini,[42] Safi Golpayegani,[43] Makarem Shirazi[44] and [[Khamenei]][45] are of the opinion that if cosmetic surgery causes appreciable harm to a person, it is not permissible according to the provisions of the "harmless" rule.
==Effects and Necessities==
The effects and necessities that are involved in cosmetic surgery are as follows:
===Seeking to have a forbidden look and touch===
According to all contemporary Shiite jurists, if cosmetic surgery requires looking at and touching a stranger (for both the patient and the doctor), it is not permissible. Cosmetic surgery for the purpose of treatment and repair of damaged body parts, such as burns or injuries is permissible:
* Therefore, if this work is only for beauty, it is not permissible for the strangers to look at and touch the body.[47]Cosmetic, reconstructive and therapeutic surgery, even if the doctor is not of the same sex are permissible.[48]
* If the surgery has a therapeutic aspect and it is necessary to perform it and there is a same-sex doctor available, but a non-same-sex doctor is more skilled in surgery, according to the opinion of jurists such as Sheikh Javad Tabrizi, it is possible to refer to a non-same-sex doctor who is more skilled than a same-sex one.. [49]
* Evidence and the document of this point of view is a Sahih of Abu Hamzah Samali quoted from Imam Baqir (AS). It is preferable to refer to a more competent doctor, even if he is not mahram, but if there is no fear of haram or danger, one should refer to a doctor of the same sex.[51]
*
====Ablution and Bathing the operated Part====
Some of the rulings related to ablution and bathing of the operated parts are as follows:
There is an obstacle on the organs of ablution and bathing. According to Seyyed Abolqasem Khoei, cosmetic surgery is permissible on a person who does not have any defects or ugliness on the face and who is undergoing surgery to become more beautiful, but materials that stick to the skin and prevent water from reaching the body during ablution and bathing should not be used. [52] According to Hossein Ali Montazeri and Sheikh Javad Tabrizi, if cosmetic surgery requires not performing obligatory acts such as ablution and bathing, it should be avoided. [53]
====Ablution and Bathing the Operated Parts====
According to jurists, if the surgical part is open and the water is not harmful to it, it should be performed ablution and bathing as usual. On the other hand, if the surgical part is closed and the water is harmful to it, it should be performed ablution. Also, if the transplanted hair is attached to the body and grows, ablution and bathing are correct according to Fazel Lankarani and Tabrizi.[55]
===Cosmetic Surgery and Hypocrisy (Tadlis)===
According to the traditions, Shiite jurists have considered things like tattooing a woman's face and blushing her cheeks, creating patterns on her hands and feet, attaching the hair of other women to her head, and the like as the cause of hypocrisy (tadlis) [56]. Some researchers believe that if one of the couples in marriage, with the intention of deceiving the other party and without his knowledge, performs cosmetic surgery to cover up his appearance defect, it is considered as hypocrisy (tadlis).[57]

By distinguishing between lasting beautifications, and fast-fading cases, [58] a group of jurists have considered only that which causes non-permanent beauty to be a source of refinement. [59] Some researchers have made such a distinction about cosmetic surgery as well, and they believe that only those types of cosmetic surgery is an example of hypocrisy (tadlis) that has a temporary and non-permanent effect. [60]
==Sunni Jurisprudence==
Many Sunni jurists have distinguished between two types of surgery; Surgery purely for beauty, or cosmetic surgery in the direction of treatment or repair. [61]
===Therapeutic cosmetic surgery===
Almost all Sunni jurisprudents have deemed it permissible to perform cosmetic surgery that is necessary for a person's health. [62] These jurisprudents have also insisted on the rule of harmlessness for the permissibility of this practice in such circumstances. By stating that the existence of a defect or a defective part in the body causes harm, then according to the provisions of rule of the prohibition of detriment it is permissible to remove it. [63]
===Surgery pureThere are two views in Sunni jurisprudence regarding surgery only for cosmetic purposes.[64] Some of them consider such surgery as absolutely forbidden (haram)[65] and they have cited several reasons:

# The Verse Forbidding to Change the God’s Creation [66]
# Traditions in which things like "pulling facial hair", "attaching human hair to other human head hair", "tattooing", "burnishing teeth" and such works which are only for beauty, are considered changes in God's creation and. The perpetrator of these actions is cursed.[67] According to these jurists, the word "curse" in these traditions indicates sanctity.[68]
# Seeking Similarity to Infidels:
Because the overall cause is between "pulling out facial hair", "attaching human hair to other human head hair" and the like, "seeking beauty" and "change in God's creation" and this comprehensive aspect in surgery exists only for beauty. It has.
# Similarity to infidels
In line with many traditions that forbid simulating and following infidels, [70] cosmetic surgery is considered one of the most famous manifestations of infidelity and has been banned.[71]

Another group of Sunni jurists have given importance to detail and have considered only those types of cosmetic surgeries as forbidden (haram) that are intended for refinement and exaggeration. [72]
==Main article: Cosmetic surgery ==
* The book "Al-Jarhariyah Al-Tajmailiya: Medical overview and detailed jurisprudential study" written by Dr. Saleh bin Mohammad bin Saleh Al-Fouzan, one of the professors of "King Saud" University of Saudi Arabia, which separates and examines various cosmetic surgeries that are performed on the skin, hair, bones, teeth, etc. has examined independently the jurisprudence ruling of them and is of the opinion that it is not possible to be satisfied with the existing general rules and fatwas about cosmetic surgery.
* The book "The Laws of Medical Surgery and its Related Effects" written by Mohammad bin Mohammad Al-Mukhtar al-Shanqiti which contains jurisprudential rules of medical surgery based on the Qur'an, Sunnah, consensus, reason and logic. In this book, the author has devoted a part to the examination of the jurisprudence of cosmetic surgery.
* The book "Jurisprudential and legal review of the ruling on cosmetic surgery in marriage" written by Farnoush Shariati Sarabi, written in Persian and on 129 pages, and the author has examined the ruling on cosmetic surgery in marriage in three chapters from the perspective of Shiite jurisprudence and law.
==refrences==
# Institute of Islamic Jurisprudence Encyclopedia, Persian Jurisprudence, vol.3, p.69.
# Al-Mahamid, "Ezn Al-Zouj Al-Tajmiliyyah Tahasiniyyah", p. 315.
# Kalhornia Golkar and others, "Jurisprudential-legal examination of the basis and scope of prescribing cosmetic and reconstructive surgeries", p. 79; Mesri, Islamic and legal considerations of cosmetic surgery, p. 23.
# Institute of Islamic Jurisprudence Encyclopedia, Persian Jurisprudence, vol.3, p.69.
# Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", p. 22.
# Tabrizi, Serat al-Najat fi Ajvab al-Esteftataat, vol. 7, p. 218.
# Makarem Shirazi, New Esteftataat, vol. 1, p. 479.
# Ibn Saʿd, Tabaqat al-Kubara, vol. 7, p. 32.
# For example, look at Khoei and Tabrizi, The Comprehensive Laws of Medical Issues, p. 368; Montazeri, Resale Esteftaat, Vol. 2, p. 352; Safi Golpayegani, medical inquiries, p. 265; Khamenei, Ajvab al-Esteftaat, Vol. 2, p. 78; Rouhani, Esteftaat, Vol. 4, p. 234.
# Golpayegani, Ershad al-Sael, p. 17.
# Montazeri, medical rulings, p. 138.
# Lankarani, rulings of patients and doctors, p. 134.
# Safi Golpayegani, medical inquiries, pp. 265-269.
# Saneʿi, medical inquiries, p. 45.
# Nouri Hamedani, One thousand and one inquiriess, vol. 1, p. 241.
# Montazeri, medical rulings, p. 138; Fazel Lankarani, the rulings of patients and doctors, p. 134; Saneyi, medical inquiries, p. 45.
# Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", p. 29.
# Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", p. 26.
# Valai, Annotative Dictionary of Osoul Terms, p. 72.
# Mohaqeq Damad, Jurisprudence Rules, Vol. 1, p. 227.
# Khomeini, Ketab al-Bai, vol. 1, pp. 41-42; Momen Qomi, Words of Sadidah, pp. 163-164.
# Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", pp. 27-28.
# Qasemi, Encyclopaedia of Medical Jurisprudence, Vol. 2, p. 195.
# Alavi Gorgani, medical inquiries, p. 117.
# Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", pp. 30-32.
# Surah Nesa, verse 119.
# Makarem Shirazi, Ketab al-Nekah, vol. 2, p. 133.
# Makarem Shirazi, Ketab al-Nekah, vol. 2, p. 133.
# Sheikh Sadouq, Ma'ani al-Akhbar, p. 250.
# Tawhidi, Mesbah al-Fiqahah, vol. 1, p. 204; Tabatabaei Qomi, Imaada al-Matalib fi al-Tal-eeq Ali al-Makasab, vol. 1, p. 157.
# For example, see Har Ameli, Wasal al-Shi'a, vol. 17, p. 132.
# Tawhidi, Misbah al-Fiqahah, vol. 1, p. 202.
# Sheikh Ansari, Ketab al-Makasab, vol. 1, pp. 168-169; Tawhidi, Misbah al-Fiqahah, vol. 1, p. 203; Yaqoubi Esfahani, Al-Mahwah fi Tahrir Haqam al-Makasab, p. 311.
# Sheikh Ansari, Ketab al-Makasib, vol. 1, p. 169.
# Makarem Shirazi, Ketab al-Nekah, vol. 2, p. 132.
# Makarem Shirazi, Ketab al-Nekah, vol. 2, p. 132.
# Koleyni, Al-Kafi, vol. 10, p. 542.
# Makarem Shirazi, Ketab al-Nekah, vol. 2, p. 132; Rajaee Al-Mousavi, Minhaj al-Osoul, Vol. 2, p. 37.
# For example, see Montazeri, Resale Esteftaat, Vol. 2, p. 352; Makarem Shirazi, New Esteftaat, vol. 1, p. 479; Khamenei, Answers to Al-Estiftaat, Vol. 2, p. 81.
# Qasemi, Encyclopedia of Medical Jurisprudence, vol. 2, p. 191; Sefati and Kazemi, "Cosmetic surgery from the perspective of jurisprudence", p.35.
# Montazeri, Resale Esteftaat, Vol. 3, p. 337.
# Qasemi, Encyclopaedia of Medical Jurisprudence, Vol. 2, p. 189.
# Safi Golpayegani, medical inquiries, p. 268.
# "Order of cosmetic surgery", website of the information base of the office of Grand Ayatollah Makarem Shirazi.
# "Miscellaneous medical issues: new inquiries", website of the Office of the Preservation and Publication of the Works of Ayatollah Grand Ayatollah Khamenei.
# For example, look at Khoei, Tabrizi, comprehensive rulings on medical issues, p. 368; Safi Golpayegani, medical inquiries, p. 268; Makarem Shirazi, Eftataat New, pp. 478-479; Khamenei, Answers to Al-Estiftaat, Vol. 2, p. 81.
# Khamenei, Answers to Al-Estiftaat, Vol. 2, p. 81.
# Montazeri, Resale Esteftaat, 1373, vol.3, pp. 337-338; Makarem Shirazi, Eftataat New, p. 479.
# Tabrizi, Sarat al-Najat fi Ajvab al-Istftataat, vol. 7, p. 232.
# Qasemi, Encyclopedia of Medical Jurisprudence, Vol. 2, p. 188.
# Makarem Shirazi, New Esteftaat, vol. 2, p. 597.
# Khoei, Tabrizi, Shari'i rulings for women, p.388.
# Montazeri, Resale Eftataat, Vol. 2, p. 352; Tabrizi, Sarat al-Najat, vol. 7, p. 218.
# Khomeini, Exegesis of Al-Masal, pp. 42-43; Fazel Lankarani, Taqf al-Masal, p. 59; Vahid Khorasani, Taqf al-Masal, p. 249.
# Fazel Lankarani, the rulings of patients and doctors, p. 166; Tabrizi, New Esteftaat, Vol. 2, pp. 42-43.
# Hali, Al-Sara'er al-Hawi for Tahrir al-Fatawi, vol. 2, p. 216.
# Shariati Sarabi, jurisprudential review of the ruling on cosmetic surgery in marriage, p. 95.
# Sabzevari, Mohezzab Al-Ahkam, vol. 25, p. 143; Meshkini, Terms of jurisprudence, p. 133.
# Meshkini, Terms of jurisprudence, p. 133.
# Rahimi and Mohebpour, "Examples of Hypocrisy (tadlis) in surgeries...", pp. 75-77.
# Rashid Odeh, "Operations to beautify the face", p. 8.
# Nawi, Sahih Sahih Muslim, vol. 14, p. 107; Al-Fawzan, Al-Jararah Al-Tajmailiyyah, p. 96.
# Al-Mohamid, "Ezn Al-Zoj Al-amalyyat Al-tajmylyyah Al-Tahsynyyah", p. 317.
# Rashid Odeh, " Operations to beautify the face ", p. 11.
# Rashid Odeh, " Operations to beautify the face ", p. 11.
# Surah Nesa, verse 119; Rashid Odeh, "Facial beautification operations", p. 11.
# For example, see Bukhari, Sahih al-Bukhari, vol. 7, pp. 164-166.
# Al-Mohamid, "Ezn al-Zoj Al-Tajmiliyyah Tahasiniyyah", p. 317.
# Al-Mukhtar al-Shanqiti, the rulings of al-Jarrah al-Tabi and its associated effects, p. 195; Rashid Odeh, " Operations to beautify the face ", p. 12.
# Bukhari, Sahih al-Bukhari, vol. 4, p. 170; Ibn Taymiyyah, the necessity of the straight path to oppose the Companions of Hell, Vol. 1, p. 170.
# Al-Fawzan, Al-Jarahah Al-Tajmailiyyah, p. 77.
# Rashid Odeh, " Operations to beautify the face ", p. 12.
==notes==
He is the God who created all the creatures of the earth for you.
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[[fa:جراحی زیبایی]]
[[ar:جراحة التجميل]]

The philosophy of jurisprudence

2026-09-20T07:26:02Z

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{{Author
|author = MohammadAli sultan moradi
|author2 = Muhammad Kazem Ḥaqqani Fazl
|author3 =
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'''The philosophy of jurisprudence''' is a science that takes a second-order look at the foundations and presuppositions influential in the jurisprudential understanding of religious texts in order to define the coordinates and boundaries of jurisprudence. It is said that this knowledge enhances the ability to make jurisprudence practical and correct the process of understanding the Quran and Sunnah.
One of the foundations that is influential in the practice of jurisprudence by jurists and is examined in the philosophy of jurisprudence comprises of theological bases: Is the domain of [[Religion minimal|religion minimal]] or maximal? Are Islamic rules fixed or do they change according to time and place? Does jurisprudence have a goal? The foundations about the study of methods and resources of jurisprudence discussed in the philosophy of jurisprudence include: What is the place of reason in jurisprudence, and whether reason can play an independent role in inferences or not? Among the other factors, discussed in the philosophy of jurisprudence, that affect inferences are: distortion or non-distortion of the Quran, authenticity or non-authenticity of ancient hadith resources including the Four Books , as well as the opinions of jurists about the position of Ijmā‘ (consensus). Another question is whether issuing fatwas should be based only on religious texts, or the [[Goals of Sharia|goals of Sharia]] can also be taken as bases?
The philosophy of jurisprudence also deals with the epistemological foundations considered by jurists and explains their role in deriving the rulings: Is it possible to attain certainty about the rulings of Sharia? If not, is it possible to infer the rules of Sharia with assumption and supposition? Also, can the intellect find the criteria underlying religious rulings? Another part of the philosophy of jurisprudence consists of the foundations considered by jurists in the study of texts. These foundations include: what characteristics a religious text should have so that religious rulings can be extracted from it? Or is the religious literature customary or accurate? Also, should the understanding of a religious text rely only on the signification of the words, or should we seek to understand the intention of the writer, following the hermeneutic point of view?
Discussions, dialogues and writings about the philosophy of jurisprudence in the Persian language have started since early 1370s SH (starting about 1991 AD). researchers such as Mahdī Mihrīzī, Mostafa Malikīyān, [[Ali ‘Ābidī-Shāhrūdī]], [[Sayyid Mostafa Muḥaqiq-Dāmād]], [[Ṣādiq Lārījānī]] and [[Abulqāsim Alidūst]] have written about it and the book Falsafi-yi Fiqh (philosophy of jurisprudence), containing a collection of articles on this subject, has been published by Hossein-Ali Bāy.
==Position, importance and definition==
===Jurisprudence and the basics of jurisprudence===
Jurisprudential ijtihad (analytical effort) arises from thoughts that form the conceptual (taṣavvurī) and acknowledging (taṣdīqī) foundations of jurisprudence. These foundations are sometimes discussed in sciences that are prerequisites of ijtihad, such as literature, the science of Rijāl (biographical evaluation of the transmitters of hadith) and fundamentals of jurisprudence, and sometimes they become accommodated in the jurist’s mind as fixed principles without being discussed <ref> Bāy, Falsafi-i Fiqh, pp. 24-25</ref>. Thus, the jurist’s attitude greatly influences the way he makes inferences <ref>Ibid, p. 25</ref>. These topics are sometimes discussed under various sciences and sometimes under the eight principles of jurisprudence (ru’ūs thamānīyyah), but still a coherent and codified knowledge has not been designed for it and it has not found its special position <ref> Ibid, p. 24</ref>.
The aforementioned presumptions can be traced mainly in the principles of making jurisprudential inferences based on the Quran, Sunnah, reason and ijmā‘ (consensus):
#The Quran: The foundations set by jurists for making inferences based on the Quran, which are divided into the foundations of issuance (for example: the Quran has been revealed by God and is immune from distortion) and foundations of implication (for example: God intends to convey special notions by the words of the Quran) <ref>Hādavī Tehranī, Mabānī Kalāmī Ijtihād …, quoting Ghulāmī, Nigāhī bi Kitāb-i …, p. 2</ref>.
#The Sunnah: When making inferences based on the Sunnah, the theological (Kalām) foundations of the authenticity of the single (vāḥid) and the frequently narrated (mutavātir) news are involved, and the authenticity of the rulings of reason depend on the rule of concomitance (mulāzimah) in Shia jurisprudence <ref> Jannātī, Manābi‘-i Ijtihād dar Maḏāhib-i Islāmī, pp. 221-243</ref>.
#Reason and ijmā‘: That Shia jurisprudence –contrary to Sunni jurisprudence- does not recognize the authenticity of ijmā‘ as the “collective reason,” or the authenticity of ra’y (opinion) and qīyās (analogy) as the “individual reasons,” is itself based on an epistemological foundation that considers reason to be valid only in case of a certain and definite discovery <ref>Bāqirzādih Mishkībāf, Rābiṭi-yi Fiqh va Kalām, pp. 88-101</ref>.
===What is the philosophy of jurisprudence?===
The philosophy of jurisprudence is a science that arises from a second-order view about jurisprudence. This science aims at presenting fundamental topics that act as a science overseeing jurisprudence and investigates the theoretical and analytical foundations of jurisprudence, subject matter, predicates, issues, foundations, preliminaries, goals and methodology of jurisprudence, as well as its relationship with other sciences and phenomena <ref>Āhangarān and Najafī, Farāyand-i Dilālat-i Lafẓī dar Uṣūl-i Fiqhī, p. 554</ref>. Some consider the philosophy of jurisprudence as a science that, in addition to focusing on the presumptions, goals, scope, etc. of jurisprudence, pays attention to issues related to jurisprudential ijtihad, the relationship between jurisprudence and jurist, and the way ijtihad works; such as the factors effective in ijtihad and epistemology of ijtihad <ref> Mihrīzī, Falsafi-yi Fiqh, pp. 747-748</ref>.
Philosophy of jurisprudence must not be mistaken with the “philosophy of rulings.” Philosophy of rulings oversees the quiddity (reason or goal) of religious rulings and can itself be part of the philosophy of jurisprudence <ref>N. K. Shahābī, Baḥthī dar Bāri-yi Falsafi-yi Aḥkām, p. 29</ref>.
===Position and importance===
According to some researchers, although issues of the philosophy of jurisprudence are intellectual topics and are not part of the science of jurisprudence <ref>‘Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 13</ref>, they must be proved with reason before introduction into jurisprudence <ref> Tuḥīdī Aqdam and Suliymānī Bihbahānī, Chīstī-yi Falsafi-yi Fiqh, p. 10</ref>. Therefore, awareness of the issues of the philosophy of jurisprudence has been considered as one of the conditions of ijtihad <ref>Muballighī, Pīshdarāmadī bar Falsafi-yi Fiqh, p. 15</ref>. The reasons mentioned for the necessity of the philosophy of jurisprudence include: greater ability to make jurisprudence practical, finding the true capacities of the resources of inference and correcting the process of understanding the Quran and the Sunnah <ref> Ibid, p. 12</ref>.
===Topics of the issues of the philosophy of jurisprudence===
Topics of issues of the philosophy of jurisprudence have been listed as follows:
*Definition of jurisprudence
* Position and importance of jurisprudence
* Goal of jurisprudence
* The relationship between jurisprudence and other sciences
* Philosophical foundations of the historical evolution of jurisprudence
* The realm of jurisprudence
* Structure of the jurisprudential system
* Methodology of jurisprudence
* Nature of the jurisprudential ruling
* Stability or change of the jurisprudential ruling
* Various types of jurisprudential reasoning
* Definition of ijtihad (analytical effort)
* Fundamentals of ijtihad
* Relationship of interests and harms with the jurisprudential ruling
* Authenticity of sources of legislation
* Reliability of texts
* Methods of interpreting texts <ref>Tuḥīdī and Bihbahānī (1383 SH/2004 AD), p. 9</ref>
===The relationship between philosophy of jurisprudence and other homogeneous sciences===
The philosophy of jurisprudence has topics in common with many other Islamic sciences; for example, the reliability of texts and the sanctity of religious texts are common with the science of theology (Kalām), and the nature of the jurisprudential ruling and its change or stability are of the issues that are common with fundamentals of jurisprudence (uṣūl-i Fiqh). Therefore, some believe that all the issues claimed by the philosophy of jurisprudence have been investigated within the fundamentals of jurisprudence <ref>Tuḥīdī Aqdam and Suliymānī Bihbahānī, Chīstī-yi Falsafi-yi Fiqh, p. 16; Nādirī, Falsafi-yi Fiqh, p. 260</ref>. However, others believe that no other Islamic science examines some of the questions about jurisprudence and its issues; for example, whether it is possible to have non-obligatory laws (aḥkām-i Vaḍ‘ī) that are independent from laws entailing religious obligation (aḥkām-i taklīfī) is not an issue to be discussed in the fundamentals of jurisprudence <ref>‘Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 5</ref>.
Since many of the presuppositions of jurisprudence are descriptive and some are derived from the science of theology, the issues of the philosophy of jurisprudence are also related to the science of theology. However, because jurisprudence has prescriptive presuppositions as well, and the philosophy of jurisprudence deals with them too, it has a wider range than just the theological presuppositions of jurisprudence <ref>Ibid, p. 54</ref>.
==Theological foundations==
The jurist's perception of the definition and characteristics of religion affects his view of jurisprudence. Theological foundations such as the comprehensiveness and completeness of religion, whether religion is bound by its historical context or not, the relationship of man’s happiness in this world and the hereafter with the institution of religion, the relationship between religion and the inherent rights of man, accepting or not accepting God as the head of the wise (ra’īs al-‘uqalā’) and the possibility of verbal communication between God and man, form the foundations of a jurist’s basic stances. These foundations determine the jurist’s answer to each of the following questions:
Are religious texts jurisprudential or customary and moral? Are jurisprudential rulings pre-eternal and eternal or not? Does jurisprudence aim at otherworldly good or total happiness in this world and the hereafter? Is morality the essence of jurisprudential rules? What is the nature of right? Do the rules of Islam address the mukallaf person (person responsible for his religious duties) or the rightful person? Does jurisprudence address a Muslim individual or the Muslim community?
Jurists’ different answers to these theological questions of jurisprudence form the basic foundations of their jurisprudential opinions and are the reason for the difference between their fatwas and the fatwas of other jurists.
===The realm of jurisprudence===
''Main article: [https://ency.feqhemoaser.com/fa/view/%D9%85%D9%86%D8%B7%D9%82%D8%A9_%D8%A7%D9%84%D9%81%D8%B1%D8%A7%D8%BA Manṭiqat al-Firāgh] and [[Maṣāliḥ al-Mursalah]]''

The jurist’s understanding of issues such as the realm of religion and the scope of Sharia, minimal or maximal religion, and manṭiqat al-firāgh can transform his final fatwa. Does jurisprudence and Sharia in general address only the minimums necessary for life or do they deal with the maximum individual and social matters of man’s life? Is it possible to have no religious rule or text for part of the issues of life?<ref>Ṣābirīyān, Guzāri-yi Kalāmī-yi Ta’thīr Guzār dar Ijtihād-i Jāmi‘īyyat-i Shari‘at-i Islām, pp. 39-40</ref> Does the Sharia have a ruling on inward actions and beliefs?<ref>‘Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 43</ref> Does the realm of jurisprudence also include the manner of implementing the rulings? Does the mission of jurisprudence also include the thematics of rulings?
Based on minimal jurisprudence, the Lawmaker has expressed religious contents in a minimal way and has left it to man’s intellect to make it as inclusive as possible.<ref>Rabbānī Gulpāygānī, Naqd-i Naẓariyyi-yi Ḥaddiaqallī dar Qalamru-yi Fiqh-i Islāmī, p. 6</ref> In this regard, in the theory of manṭiqat al-firāgh, Sayyid Muhammad-Bāqir al-Ṣadr relies on the اولوالامر verse to expand the scope of the obligation of obeying the command to a range beyond the scope of religious commands.<ref> Ṣadr, Iqtiṣādunā, vol. 1, p. 689; Dā’irat al-Ma‘ārif-i Fiqh-i Muqārin, vol. 1, p. 222; Sanad, Buḥūth fī al-Qavā‘id al-Fiqhīyyah, vol. 2, p. 526</ref>
According to the generally accepted premises of Shia jurisprudence, the expansion of the scope of jurisprudence to the recognition of non-external (internal) rulings results in the existence of rulings about non-volitional actions, and as a result causes a “belief cycle”.<ref>Yūsifī Muqaddam and Ṣādiqī Fadakī, Pajūhishī dar Tusi‘i-yi Ḥarīm-i Fiqh …, pp. 767-769</ref> On the other hand, one group believes that the departure of internal rulings from jurisprudence happened in a historical process and has no rational jurisprudential basis <ref>A‘rāfī and Mūsavī, Gustarish-i Mūḍū‘-i Fiqh Nisbat bi Raftārhā-yi Javāniḥī, p. 132</ref>, and in addition, although beliefs are not optional, they are formed on the basis of certain preliminaries and actions, and those preliminaries can be the subject of jurisprudential rulings.<ref>Yūsifī Muqaddam and Ṣādiqī Fadakī, Pajūhishī dar Tusi‘i-yi Ḥarīm-i Fiqh …, pp. 769-784</ref>
The general atmosphere of jurisprudence did not traditionally consider presentation of methods as part of the scope of jurisprudence. However, not offering an implementation method could lead to the abandonment of the rulings. Also, there were issues such as enjoining the good and the Ḥisbīyyah matters which were stated along with the method of execution. Therefore, presentation of methods was also introduced into the scope of jurisprudence.<ref>Riḍā’ī Rād, Naqsh-i Fiqh dar Tabyīn-i Shīvihā-yi Ijrā-yi Aḥkām, p. 109-110</ref>
===Being bound by the historical context and the fixed and variable in jurisprudence===
''Main article: [[Historical context-bound rulings]]''

The prerequisite of examining stability and change in religious rulings (which is of the theological foundations of jurisprudence) is to answer these questions: Are all the rulings of Islam fixed? What is the criterion for distinguishing variable rulings from fixed ones? Do the [[Two elements of time and place|two elements of time and place]] have an effect on inferring the rules of Sharia? On the other hand, was the audience of jurisprudential texts only the society of those days?<ref> Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 48</ref> Are the conditions of the society and the prevailing situations influential in the interpretation of religious texts?
One group believes that rulings are bound by historical context, but traditional viewpoints that deny the modern foundations of being bound by historical context consider the clear implication of some verses and hadiths, the emergence of jurisprudential rulings from factual propositions, and the positional absoluteness of rulings as the reason for their immortality.<ref>Qadrdān Qarāmalikī, Jāvdānigī-yi Sharī‘at va Milākhā-yi ān, p. 107</ref> Nonetheless, supporters of such traditional viewpoints have tried to explain some of the necessary changes in jurisprudential rulings under the topic of fixed and variable rulings. In fact, they have accepted that not everything in jurisprudential works is transhistorical, but some rulings refer to a certain time and place.<ref>Ayāzī, Milākāt-i Aḥkām va Shīvihā-yi Istikshāf-i ān, p. 311</ref> In this regard, jurists of the jurisprudential school of Qom try to revise the historical factors of discovering the true intention of the Lawmaker according to topics that have been customary in jurisprudence, such as the circumstantial and verbal evidence.<ref>Makārim Shīrāzī, Dā’irat al-Ma‘ārif-i Fiqh-i Muqārin, vol. 1, p. 272</ref>
Discussions such as the division of religious teachings into essential and accidental, or the essence and shell of religion are in line with believing that rulings are bound by the historical context, and accepting each of these explanations will lead to the division of jurisprudential rulings into fixed and variable ones.
===Systematicity and purposefulness of jurisprudence===
Like debates about the “principles of jurisprudence” <ref>N. K. Shafī‘ī, Uṣūl-i Fiqh Rūykardhā va Ravishhā, p. 115</ref>, the philosophy of jurisprudence asks whether jurisprudence is a science or a technique. The non-systematic (technical) approach to jurisprudence considers it a set of religious issues and reduces ijtihad (analytical effort) to the jurists’ ijtihadi (analytical) activities (collection of their discussions, dialogues, arguments, refutations and affirmations).<ref>Alidūst, Falsafi-yi Fiqh-i Aḥkām </ref> But the systematic view of jurisprudence considers it as not just a collection of issues, but a knowledge in a scientific form. Assuming this scientific form for jurisprudence will be the basis for deciding whether jurisprudence is a coherent and systematic knowledge for determining social rulings and therefore is part of the social sciences<ref>Khusrupanāh and Rajabī, Gustari va Ravish-Shināsī-yi Fiqh al-Ijtimā‘, p. 66</ref> or, considering its many and inherent similarities with sciences such as “legal theory”, it can be regarded as a human science. But what is generally called “systematicity of jurisprudence” is comprehensiveness and coverage of all aspects of the life of the mukallaf person (individual, social, political and etc. jurisprudence). This perception is covertly based on a positive answer to the questions of whether jurisprudential rulings are systematically related and is it possible to reach a criterion to determine the sphere of influence of jurisprudential rulings and also to prioritize them or not?
Systematicity and purposefulness are connected in some way. Therefore, when questioning about the systematicity of jurisprudence, there is the question of whether jurisprudence has a goal and, if so, what is that goal? The theological basis considered by all jurists is that the goal of Islam as an intellectual system is to determine human happiness.<ref> Shahābī, Advār-i Fiqh, p. 19</ref> Based on this attitude, jurisprudential ijtihad is a methodical effort to understand religion and the rules of sharia governing man’s life. Thus, jurisprudence, as one of the branches of religious ijtihad, is in serious connection with theological and ethical ijtihad in Islam.<ref>Mukhliṣī, Nigāhī bi Talāshhā-yi Iḥyāgarāni-yi Shahīd Ṣadr</ref>
==Methodological foundations==
The methodological issues of jurisprudence are all formed under the questions as to what are the characteristics of each of the four sources of jurisprudence, i.e. the Quran, Sunnah, ijmā‘, and reason? What is their degree of validity? What is the relationship between these sources, and does one take precedence over the other? What is the method of understanding religious and jurisprudential texts?<ref>Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 52</ref> And what is the relationship between the results of referring to custom, or research based on scientific methods (including linguistics), to discover the intention of the Lawmaker and the method of inferring the rulings, which has led the science of jurisprudence to accept or reject it? <ref>Ibid, p. 53</ref>
===Authority of the rational reason ===
The basic discussion on the position of reason in jurisprudence is about determining independent rulings of practical reason (Mustaqillāt al-‘Aqlīyyah) as the affirmative principles of jurisprudence (the major premise of jurisprudential propositions) and the compliance of the rulings of Sharia with real benefits and harms. This discussion was raised under a debate titled “connection or non-connection of the rule of reason and the Sharia” (the rule of connection) and also the possibility of discovering the criteria of the rulings.
===Authority of textual sources===
Difference of attitudes about the issue of distortion or non-distortion of the Quran, the authenticity or lack of authenticity of ancient hadith sources including the Four Books, as well as the view about ijmā‘ (consensus) and the scope of man’s rational cognition, result in difference of fatwas and the formation of numerous jurisprudential approaches. Formation of the two traditionalist (Ikhbārī) and fundamentalist (uṣūlī) approaches, the jurisprudential schools of Qom and Najaf, or the movement known as enlightenment or new religious thinking, is caused by the difference in answers to the aforementioned questions. Fundamentalists base their method of understanding on intellectual foundations. Traditionalists consider the main source of rulings to be exclusive to hadiths, and apart from considering intellectual reasons to be invalid, they even consider the manifest meanings of the Quran to be valid only with the special confirmation of hadiths.<ref>Mūsavī, Vījigīhā-yi Ravish-i Istinbāṭ …, p. 245</ref>
===Exoteric jurisprudence (fiqh-i ẓāhirī) and objective oriented jurisprudence (fiqh-i Maqāṣidī)===
''Main article: [[Purposeful jurisprudence|purposeful jurisprudence]]''

The question raised by a group of contemporary jurists is whether the methods of non-formalist jurisprudence such as the [[Spirit of Sharia|spirit of Sharia]], [[The taste of Sharia|the taste of Sharia]] and [[The goals of Sharia|the goals of Sharia]], can be used to reach a ruling of the Sharia or not. The function of these methods is to pass through the superficial layer of jurisprudential sources and reach the real intention of the Lawmaker. The basic doubt about the “taste of Sharia” is that leaving out literal inference from the sources is an invalid method in Shia jurisprudence; including invalid unconscious thoughts<ref>‘Ashāyirī Munfarid, Chīstī-yi Miḏāq-i Sharī‘at va Āsībshināsī-yi Fiqhī-yi ān, p. 119</ref> and [[Juristic preference|juristic preference]] (istiḥsān).<ref>Alishāhī Qal‘ijūqī, Sanjish-i Istiḥsān dar Ahl-i Sunnat …, p. 74</ref> Determining the nature of these methods and evaluating their validity and compliance with reality is the responsibility of the philosophy of jurisprudence.
==Epistemological foundations==
In the epistemological foundations of jurisprudence, the philosopher of jurisprudence seeks to clarify the point as to whether it is possible to find certainty about the rules of Sharia. If it is not possible, is it possible to find out the rulings with uncertainty? Where is the limit of either certainty or uncertainty and guess in jurisprudence? The theories of closure and opening up of the door to knowledge of the Imam and knowledge of religious scholars in the books of principles of jurisprudence indicate the answers given by jurists to these questions.
On this basis, the philosophy of jurisprudence asks whether the closure of the door to knowledge of the Imam is considered a form of limited skepticism or not.<ref>ṬāLiqānī, Ma‘rifat-Shināsī-yi ‘Ilm-i Fiqh</ref> Additionally, many topics in classical hermeneutics, such as the impact of the circumstances surrounding the issuance of hadiths or the influence of the jurist’s lifestyle on his understanding of evidence, can be considered as part of the epistemology of jurisprudence. Similarly, the influence of jurisprudence from other human sciences, which was raised following the [[Theory of the theoretical contraction and expansion of the Sharia|theory of the theoretical contraction and expansion of the Sharia]], can be regarded among the foundations of the epistemology of jurisprudence. One of the most significant discussions in the epistemological foundations of jurisprudence is the examination of the possibility of recognizing the criteria of rulings, which has a clear connection to the purposive and criterion-based jurisprudence. Altogether, these inquiries can serve as a basis for conceptualizing debates such as “authoritativeness,” “realism,” “purposivism,” or “criterionism.”
===The possibility of recognizing the criteria of rulings===
In discussing the possibility of uncovering the criteria of rulings, each jurist’s perspective is closely linked to his theological<ref> Īzadpūr, ‘Aql va Kashf-i Milākāt-i Aḥkām, pp. 127-144</ref> and epistemological foundations. Opponents of rationalism do not accept the mind as a source.<ref>Sayyid Murtiḍā, al-Ḏarī‘ah, vol. 1, p. 435; Gharavī Iṣfahānī, Nihāyat al-Dirāyah, vol. 2, p. 324</ref> Some have argued that God’s actions being guided by purposes contradict certain verses and hadiths that explicitly state that the intellect cannot grasp the criteria of the rules of Sharia.<ref>‘Ābidī, Maṣlaḥat dar Fiqh, pp. 172-176</ref> They claim that considering the intellect as a source is contrary to the beliefs of Muslim scholars<ref>Suhrivardī, Ḥikmat al-Ishrāq, p. 136; Mullah Ṣadrā, al-Ḥikmat al-Muta‘ālīyyah, vol. 6, p. 366, as quoted by ‘Ābidī, Maṣlaḥat dar Fiqh, pp. 172-176</ref> and implies that the highest good is superior to God. In contrast, rejecting the arguments of those who rely on texts, rationalist jurists have accepted that a ruling of the Sharia, as an optional action of God, necessarily follows a righteous purpose, and there is no preference without a preferable in God’s voluntary actions. On the other hand, some view the intellect as a means of discovering the rulings of Sharia and believe that without considering the purposes behind these rulings, it is not possible to discover the laws about new issues.<ref>Muḥaqqiq Iṣfahānī, Nihāyat, vol. 2, pp. 327-328, 468 and 642, as quoted by ‘Arab Ṣāliḥī, Kārkirdhā-yi ‘Aql-i ‘Amalī dar Fiqh, p. 115</ref>
==Foundations of textual analysis in jurisprudence==
A jurist’s view about what a text is and his definition of the specific characteristics of the two main religious texts (the Quran and hadiths) form the foundations of textual analysis in ijtihad. The path of jurisprudence, from religious text to the fatwa, clarifies what features turn the texts that reflect the sayings and actions of the Infallible people into jurisprudential documents.<ref>Ābidī Shāhrūdī et. al., Iqtirāḥ: Falsafi-yi Fiqh …, p. 53</ref> The features mentioned in traditional jurisprudence include: being explanatory, voluntary and not based on taqīyyah (dissimulation of one’s belief to protect oneself).<ref>Murādī Gulistānī and Rād, Ḏavābiṭ-i Kārāmadī-yi Fi‘l-i Ma‘ṣūm dar Istinbāṭ-i Āmūzihā-yi Dīnī, pp. 76-82</ref> The questions raised in this regard include: What transforms these characteristics into criteria for distinguishing statements and actions that determine religious laws from ordinary statements and actions? Is the literature of religious texts conventional or precise? Viewing religious texts as conventional may raise doubts about the validity of fundamental principles such as Iṭlāq (generality) and ‘Umūm (inclusiveness).
===The historical nature of the text===
Another question relates to the historical context of rulings and the jurisprudential foundations of textual analysis: Should the conditions of the society receiving the rulings be considered in the understanding and interpretation of religious texts? Is it possible for a statement to be meaningful outside the linguistic context of its intended audience? Those who have a historical standpoint argue that the implications of the words of texts, even though they originate from a divine source, necessarily depend on the linguistic context of their direct audience. Thus, denying the historical context-bound nature of religious concepts eliminates the specific connotations of texts.<ref>Ayāzī, Tārīkhmandī dar Nuṣūṣ-i Dīnī, p. 65</ref> Conversely, proponents of the eternality of texts, drawing on the longstanding belief among Muslims about the divine origin and eternal nature of the words of the Quran,<ref> Ma‘rifat, al-Tamhīd fī ‘Ulūm al-Qur’ān, vol. 1, p. 274</ref> argue that reflection of the false elements of the culture of pre-Islamic ignorance in the Quran contradicts the divine wisdom.<ref>Gulī, Naqd va Barrisī-yi Didgāh-i Naṣr Ḥāmid Abū-Zayd …, pp. 57-58</ref>
===Hermeneutics and Jurisprudence===
''Main Article: [[Hermeneutics and Jurisprudence]]''

Based on hermeneutical teachings, each reader interacts with a text influenced by their specific temporal and spatial characteristics, as well as their preconceptions. Consequently, different audiences have varied interpretations of the same text, and none of these interpretations is compatible with what the speaker intended in every respect. Therefore, the central question of hermeneutics, or the science of interpreting texts, is: given the “gap between the speaker and the audience,” what criteria govern explaining and mutual understanding in interpretable texts, especially in religious texts that are ancient resources? Therefore, depending on the level of the disparity of conditions and the impact of preconceptions, this question becomes more significant, and accordingly, the responses become varied.<ref>Ṭāhirī, Barrisī-yi Intiqādī-yi Muqāyisi-yi Uṣūl-i Fiqh-i Islāmī va Bīnish-i Hirminutīkī, p. 424</ref>
The mainstream of Shia jurisprudence considers itself to have a “non-interpretive” approach, focusing on uncovering the literal meanings of texts and seeking “the meanings of words,” rather than the “intent of the speaker.” In contrast, “interpretivists” aim to discover the speaker’s intended meaning.<ref>Ibid, Barrisī-yi Intiqādī-yi Rābiṭi-yi Uṣūl-i Fiqh-i Islāmī va Hirminutīk, p. 120</ref> According to interpretivists, jurists require interpretation of the vocabulary, propositions, and issues raised in religious texts to derive religious rulings. Classical hermeneutics has several similarities with the principles of jurisprudence, including author-centered interpretative approaches, objectivism, the fundamentality of literal meaning, and the adherence of text interpretation to general comprehension rules, such as the fundamentality of truth.<ref>Āzād et. al.</ref>
==The relationship between jurisprudence and other sciences==
===Jurisprudence and law===
''Main article: [[Jurisprudence and law]], and [[Jurisprudence and human rights|jurisprudence and human rights]]''

One of the issues in the philosophy of jurisprudence is determining the relationship between jurisprudence and law, whether it is one of equality and distinction, or generality and specificity. The questions raised in this regard include: the relationship between the rules of Sharia and the law, the relationship between the subject matter of the science of jurisprudence and legal sciences, and the relationship between the scope of jurisprudential rulings and legal subjects.<ref>Gurjī, Rābiṭi-yi Fiqh va Ḥuqūq, p. 21</ref> Additionally, if these two fields have fundamentally different natures, can religious rulings be considered the basis for laws? The relationship between jurisprudence and human rights has also posed new questions for jurists, which could be a topic for philosophical research.
===Ethics and jurisprudence===
''Main article: [[Jurisprudence and ethics|jurisprudence and ethics]].''

The philosophy of jurisprudence examines the relationship between jurisprudence and ethics from two perspectives: first, it looks at the relationship between moral judgments of reason and the rules of Sharia, and second, it explores jurisprudence as a normative system in contrast to ethics (as another normative system). In this regard, rationalists (the ‘Adlīyyah) and theorists of the divine command theory (the Ashā‘irah) face off against each other, with the former believing that the Sharia follows ethics, while the latter seeks to deny this.<ref>Fanāyī and Nujavān, Naqsh-i Akhlāq dar Qānūn az Manẓar-i Falsafi-yi Fiqh va Falsafi-yi Ḥuqūq, pp. 287-289</ref>
==Background, sources, and experts of the philosophy of jurisprudence Philosophy of jurisprudence==
“Philosophy of jurisprudence” is a relatively modern term, emerging in the second half of the 14th Solar Hijri century. It appears that Mahdi Mihrīzī’s article titled Falsafi-yi Fiqh published in 1997 in Yādnāmi-yi Khātamī, along with the interview, published in the Naqd va Naẓar quarterly journal, with Mustafa Malikīyān, Ali ‘Ābidī Shāhrūdī, Sayyid Mustafa Muḥaqiq Dāmād, and Ṣādiq Āmulī Lārījānī titled Falsafi-yi Fiqh dar Naẓarkhāhī az Dānishvarān, are among the earliest written efforts in this regard. The meaning of the “philosophy of jurisprudence” has been somewhat ambiguous, and much of the research under this heading has merely questioned what the philosophy of jurisprudence actually is. As a result, this field of study has been considered undeveloped and lacking a distinct identity.<ref>Tuḥīdī Aqdam and Suliymānī Bihbahānī, Chīstī-yi Falsafi-yi Fiqh, pp. 5-8</ref> In recent decades, many researchers in the field of jurisprudence have addressed issues related to this area, including: Abulqāsim Ali-Dūst, Sa‘īd Ḍīyā’īfar, Sayyid Mohammad-Ali Ayāzī, Abulqāsim Fanā’ī, Mohammad-Ibrahim Jannātī, Sayyid Mohsen Mūsavī Gurgānī, Mohammad Mujtahid Shabistarī, and Ahmad ‘Ābidī.
===Main references===
The most significant study resources of the philosophy of jurisprudence, published under this title in Persian, include:
Falsafi-yi Fiqh: A two-volume collection of selected articles by Hossein-Ali Bāy.
Guftārī dar Falsafi-yi Fiqh: Compiled by Ali Mohammadī Jurkūyih, this work includes several statements of researchers in the field of Islamic philosophy and jurisprudence.
Pīrāmūn-i Falsafi-yi UṢūl-i Fiqh: Bā Nigāhī bar Ārā-yi Ayatollah al-‘Uẓmā Sheikh Muhammad Hossein Gharavī Isfahanī; a work by Mas‘ūd Fayyāḍī. * Falsafi-yi ‘Ilm-i Fiqh: A work authored by Sa‘īd Ḍīyā’īfar, which examines jurisprudence from the three aspects of subject matter and scope, objectives, and theological foundations.
The Qabasāt quarterly journal published its issue number 32 (1383 SH/2004 AD) as a special edition on the philosophy of jurisprudence.
Guftugūhā-yi Falsafi-yi Fiqh, is the name of a work featuring discussions with Ali ‘Abidī Shāhrūdī, Nāṣir Kātūzīyān, Ṣādiq Āmulī Lārījānī, Mohammad Mujtahid Shabistarī, and Mostafa Malikīyān. Some of these dialogues were previously published in the Naqd va Naẓar quarterly journal.
==Footnotes==
{{footnotes|2}}

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* Murādī Gulistānī, Mahdi, Rād, Ali, Ḏavābiṭ-i Kārāmadī-yi Fi‘l-i Ma‘ṣūm dar Istinbāṭ-i Āmūzihā-yi Dīnī, Fiqh quarterly journal, round 23, No. 87 and 88, Autumn 1395 SH/2016 AD. [https://jf.isca.ac.ir/article%2064884%204961662e81fea813878fbfb7c522c227.pdf link]
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{{end}}

[[fa:فلسفه فقه]]
[[ar:فلسفة الفقه]]

Abortion

2026-09-20T07:20:50Z

Enadmin:

{{Author
|author = Hadi Naqavi
|compiler =
}}
'''Abortion (in persian: [[:fa:سقط_جنین|سقط جنین]])''' is an ancient issue that has found new instances in the modern world. Today, the health and sickness or defect and perfection of a fetus can be identified, and we are aware of the dangers that carrying a fetus can pose to the mother. It is even possible to grow or maintain a fetus outside the mother's womb. Maintaining a fetus resulting from rape or an illicit relationship is also a matter that has been a subject of debate previously. Researchers in Islamic jurisprudence and law have given opinions on the abortion of a disabled fetus, an IVF fetus, a fetus that poses a mortal danger to the mother, and a fetus resulting from an illicit relationship, and significant research works have been written on this topic. According to the fatwas of several jurists, in cases of precise diagnosis of a fetal disease, or a conflict between preserving the fetus and preserving the mother, or the unbearable consequences of maintaining an illegitimate fetus, abortion is permissible based on the principle of prioritizing the more important over the important.
==Position and Importance of Abortion==
Human abortion has been a question and an affliction for society since the past. In Islam, intentional abortion is forbidden (*haram*), and Shia jurists have no disagreement on this ruling. Various situations of abortion, such as the parents' consent, direct action or causation in the abortion, and whether or not the soul has been ensouled, do not affect the aforementioned ruling. However, the population explosion, limited resources, women's rights and freedoms, human rights, interests of states, social welfare, and the high number of illegitimate or unwanted children are tangibly related to the issue of abortion. These kinds of issues and global statistics on abortion have doubled the importance of addressing this topic. The advancement of medical tools and the possibility of diagnosing fetal diseases brought forth the issue of preserving or aborting a defective fetus, and [[artificial insemination]] also presented jurists with the dilemma of aborting or maintaining a fetus developed in laboratory conditions.

[[Sayyid Abd al-A'la Sabzevari]] considered the general prohibitions on killing as the reason for the prohibition of abortion;<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref> for example, Qurʾan 6:151: "And do not kill the soul which Allah has forbidden, except by right." From Naser Makarem Shirazi's perspective, this verse can be used for the prohibition of abortion only if the creation of the fetus is complete and the soul has been breathed into it, so that killing is applicable to it legally and customarily. Therefore, the stages before that are not included in the said verse.<ref>Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 286.</ref> Also, narrations from the Infallible Imams, such as the reliable narration (muwaththaqah) of Ishaq ibn 'Ammar from Imam al-Kazim (a), which Shaykh al-Saduq has narrated in his book Man La Yahduruhu al-Faqih.<ref>Al-Saduq, *Man La Yahduruhu al-Faqih*, vol. 4, p. 171.</ref>

==Defective or Sick Fetus==
There are two opinions on the ruling of aborting a defective or disabled fetus;
# A group of jurists, such as [[Sayyid Abu al-Qasim Khoei]] and [[Sayyid Ruhollah Musavi Khomeini]], have specified that aborting a defective fetus is absolutely forbidden.<ref>For example: Khoei, and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah*, p. 150; Khomeini, *Istifta'at*, vol. 3, p. 291; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Montazeri, *Ahkam-i Pizishki*, p. 103.</ref> The authors of Mawsu'at al-Fiqh al-Islami have stated the reason for this fatwa to be the general applicability of the evidence prohibiting abortion, especially after the ensoulment of the soul, because it is an instance of killing a human.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, pp. 396-397.</ref>
# Some jurists, like [[Mohammad Fazel Lankarani]], believe that aborting a defective fetus is permissible only if three conditions are met: (1) it is before the ensoulment of the soul and it has not become a complete human. (2) They are certain that the fetus is defective and flawed. (3) Maintaining it would cause severe hardship ('usr wa haraj) for the parents. The reason for the second opinion is the precedence of the evidence negating hardship for the parents over the evidence prohibiting abortion.<ref>Fazel Lankarani, *Jami' al-Masa'il*, vol. 2, p. 394; Makarem Shirazi, *Ahkam-i Pizishki*, p. 93; Khamenei, *Ajwibat al-Istifta'at*, p. 280.</ref>
===Maintenance of IVF Children===
Regarding the [[IVF children|embryo developed in a test tube]], [[Makarem Shirazi]] also specifies that its maintenance is not obligatory as long as it has not taken the form of a living human.<ref>Makarem Shirazi, *Ahkam-i Pizishki*, p. 88.</ref> The reason for this ruling has not been specified.

==Fetus Conceived from Adultery==
Regarding the abortion of a fetus resulting from an illicit relationship, two fatwas can be found;

# According to the fatwa of most contemporary jurists, abortion of a fetus is forbidden, even if it is the result of adultery (zina).<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Iravani, *Durus Tamhidiyyah fi al-Fiqh al-Istidlali*, vol. 3, p. 309; Khamenei, *Ajwibat al-Istifta'at*, p. 280; Hakim, *Murshid al-Mughtarib*, p. 355; Golpayegani, (if at least one of the parties to the adultery is a Muslim) *Mukhtasar al-Ahkam*; p. 137.</ref> The argument of some of these jurists is the general applicability of the evidence prohibiting abortion, such as the reliable narration of 'Ammar,<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253.</ref> and also that it is considered an instance of killing a soul (qatl al-nafs).<ref>Hakim, *Murshid al-Mughtarib*, p. 355.</ref>
# [[Mirza Jawad Tabrizi|Jawad Tabrizi]] permits the abortion of an illegitimate fetus under three conditions: (1) it is the result of rape, (2) maintaining the fetus would cause severe hardship for her, (3) and the abortion is performed before the ensoulment of the soul.<ref>Tabrizi, *Sirat al-Najat*, vol. 9, p. 273.</ref> [[Mohammad Ishaq Fayyadh]] has also sided with the fatwa of permissibility, removing the first condition.<ref>Fayyadh, *Tawdih al-Masa'il*, p. 744.</ref> Although the reasoning for the fatwa of [[Jawad Tabrizi]] and Fayyadh has not been specified, according to jurisprudential principles, the implication of the precedence of the evidence negating hardship over the evidence prohibiting abortion can explain part of the reasoning for this fatwa.

Jawad Tabrizi and [[Sayyid Abd al-A'la Sabzevari|Sabzevari]] permit the abortion of an illegitimate fetus before the ensoulment of the soul only in a state of necessity for the mother, such as the fear of losing her own life. Jawad Tabrizi has introduced the fear of family dishonor and the loss of their good name as an example of necessity.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327; Khoei and Tabrizi, *Fiqh al-A'dhar al-Shar'iyyah wa al-Masa'il al-Tibbiyyah (al-Muhashsha)*, p. 149.</ref> Sabzevari, in his reasoning, considers this issue to be a case of choosing between the more important (ahamm, preserving the mother's life) and the important (muhimm, preserving the illegitimate fetus) and considers preserving the mother's life to be precedent from a customary perspective, especially in cases where the mother has repented for her action.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref>

==Threat to the Mother's Life==
The opinions of jurists when the continuation of pregnancy poses a mortal danger to the mother, according to a specialized and trusted physician, differ before and after the ensoulment of the soul;
===Before the Ensoulment of the Soul===
Contemporary jurists have permitted the abortion of a fetus before the ensoulment of the soul in the said situation.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 344; Golpayegani, *Irshad al-Sa'il*, p. 173; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 253; Khomeini, *Tawdih al-Masa'il*, vol. 2, p. 945; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Makarem Shirazi, *Ahkam-i Pizishki*, p. 91; Khamenei, *Ajwibat al-Istifta'at*, p. 279; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64; Tabrizi, *Sirat al-Najat*, vol. 1, p. 333.</ref> This is because, based on well-known principles, the evidence of necessity (idtirar, the mother's necessity to abort) and the negation of harm (la darar, keeping the fetus is harmful to the mother) conflict with the evidence prohibiting abortion. However, the implication of the precedence of the evidence of necessity and negation of harm is the permissibility of abortion.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 399.</ref> Indeed, from the perspective of [[Mohammad Asif Mohseni Qandahari]], abortion is obligatory, and the reason for it is the necessity of prioritizing the more important (preserving the mother's life) over the important (preserving the unensouled fetus).<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 64.</ref>

===After the Ensoulment of the Soul===
Regarding the abortion of a fetus after the ensoulment of the soul when the mother's life is endangered, jurists have examined the issue from two angles: the mother's duty and the duty of a third party;
====Abortion with Third-Party Intervention====
Regarding abortion with the intervention of a third party, most contemporary jurists, like [[Tabataba'i Yazdi]], the author of Al-'Urwah, and many jurists who have written commentaries on that book, consider abortion to be forbidden for the third party.<ref>Tabataba'i Yazdi, *Al-'Urwah al-Wuthqa*, vol. 2, p. 118; Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254; Safi Golpayegani, *Istifta'at-i Pizishki*, p. 66; Sistani, *Al-Fatawa al-Muyassarah*, p. 432; Khamenei, *Ajwibat al-Istifta'at*, p. 279.</ref>

[[Sayyid Abd al-A'la Sabzevari]], in justifying this ruling, has said that there is no religious preference for saving the mother's life over the fetus's, and vice versa, and in this situation, one must wait for the divine decree.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 25, p. 254.</ref> But Mohammad Asif Mohseni Qandahari, in the said scenario, has permitted the killing of the fetus by a physician for the purpose of preserving the mother's life.<ref>Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*, vol. 1, p. 65.</ref>
====Abortion by the Mother's Agency====
If a mother wants to abort her fetus to save her own life, [[Sayyid Abul-Qasim Khoei]] and some other jurists consider this act permissible.<ref>Khoei, *Sirat al-Najat*, vol. 1, p. 332; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, vol. 1, pp. 114-115; Mohseni, *Al-Fiqh wa Masa'il Tibbiyyah*; vol. 1, p. 65.</ref>

Khoei's reasoning is based on "the priority of repelling harm over attracting benefit," and he believes that if a harm is directed at two people, one of them is not obligated to endure the harm so that the other does not suffer harm and remains safe, because enduring harm here is a hardship ('usr wa haraj), and the legally responsible person is not forced to accept it. Therefore, it is not obligatory for the mother to wait until she dies for her child to live, and the mother can strive to preserve her own life even by killing the child (fetus) in her womb.<ref>Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 9, p. 318.</ref>

==Legal and Penal Consequences==
In the discussion of abortion, Shia jurists have also addressed the rulings for the person who commits the act and have stated the rulings of retribution (qisas), blood money (diyah), and expiation (kaffarah) for abortion.
===Retribution (Qisas)===
A large number of contemporary jurists, including Khoei and Makarem Shirazi, are of the opinion that abortion after the ensoulment of the soul does not carry retribution.<ref>Khoei, *Takmilat al-Minhaj*; p. 134; Montazeri, *Al-Ahkam al-Shar'iyyah*, p. 562; Golpayegani, *Majma' al-Masa'il*, vol. 3, p. 291; Vahid Khorasani, *Minhaj al-Salihin*, vol. 3, p. 589; Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 292; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, p. 121.</ref>

Makarem Shirazi's reasoning is that the narrations on the blood money for a fetus and the narrations concerning intentional or mistaken abortion, despite their abundance and multiplicity, do not mention retribution for the perpetrator, and this itself is the reason for the lack of retribution.<ref>Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 292.</ref>

However, Sayyid Abd al-A'la Sabzevari has issued a fatwa for retribution for the perpetrator of abortion in such conditions.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref> Makarem Shirazi considers this opinion a rare one.<ref>Makarem Shirazi, *Istifta'at Jadid*, vol. 1, p. 403.</ref> Sabzevari argues that when the soul has been ensouled and the creation of the fetus is complete, the requirement for retribution – the killing of a respected soul – exists, and there is no obstacle to its implementation. Therefore, the generality and applicability of the evidence that designates retribution as the punishment for a murderer<ref>Quran 17:33; Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, p. 52, bab 19, min abwab al-qisas fi al-nafs, h. 1.</ref> also includes this case.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 112.</ref>

===Blood Money (Diyah)===
The obligation of blood money on the one who commits a forbidden abortion is not a matter of dispute.<ref>A group of researchers, *Mawsu'at al-Fiqh al-Islami*, vol. 5, p. 402.</ref> In intentional and quasi-intentional abortion, the blood money at all its stages is the responsibility of the killer, and in the case of accidental abortion, it is the responsibility of the 'aqilah (male paternal relatives), and on this issue as well, there is no disagreement among Shia jurists.<ref>Fazel Lankarani, *Tafsil al-Shari'ah, al-Diyat*, p. 288.</ref>

And where abortion is permissible, some, like [[Hossein-Ali Montazeri|Montazeri]], [[Mohammad Fazel Lankarani]], and Fayyadh, also consider the payment of blood money to be obligatory.<ref>Montazeri, *Ahkam-i Pizishki*, p. 106; Fazel Lankarani, *Ahkam-i Pizishkan va Bimaran*, p. 117; Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.</ref> [[Mohammad Ishaq Fayyadh]], regarding the abortion of an illegitimate fetus by relying on the negation of hardship, says: With the falling away of the prescriptive prohibition, there is no reason for the blood money to be waived from the legally responsible person.<ref>Fayyadh, *Minhaj al-Salihin*, vol. 3, p. 441.</ref> Therefore, it is included in the reliable narration of Zarif from the Commander of the Faithful (a)<ref>Hurr al-'Amili, *Wasa'il al-Shi'a*, vol. 29, abwab diyat al-a'da', bab 19, h. 1.</ref> and the generalities and applicability of the evidence establishing blood money.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 327.</ref>

===Expiation (Kaffarah)===
Before the ensoulment of the soul, according to the consensus of Shia jurists, expiation is not required for the one by whose hand the abortion was performed,<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 316.</ref> because the title of "killing" does not apply in this state.<ref>Fazel Lankarani, *Tafsil al-Shari'ah, Kitab al-Diyat*, p. 280.</ref>

After the ensoulment of the soul in the fetus, according to the well-known view, an expiation equivalent to the expiation for murder<ref>Montazeri, *Ahkam-i Pizishki*, p. 107.</ref> is obligatory; because the general applicability of the evidence for the obligation of expiation in the killing of a human includes it.<ref>Sabzevari, *Muhadhdhab al-Ahkam*, vol. 29, p. 316.</ref> Montazeri has stated the same opinion as an obligatory precaution.<ref>Montazeri, *Ahkam-i Pizishki*, p. 107.</ref> But according to Khoei, in this case as well, expiation is not necessary.<ref>Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 42, p. 503.</ref> Because in the verse and narrations, the titles "believer" and "man" are used, and these titles are conventionally understood not to apply to a fetus. Therefore, the expiation for murder is not established for abortion.<ref>Khoei, *Mawsu'at al-Imam al-Khoei*, vol. 42, p. 504.</ref>

Given the criterion mentioned in the jurists' reasoning, it seems that the ruling on expiation does not differ in the various forms of abortion.

==View of Contemporary Sunni Jurists==
Past Sunni jurists unanimously forbid abortion after the ensoulment of the soul.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> They unanimously agree that the time of ensoulment is after the completion of four months.<ref>Al-Najimi, *Al-Ijhad: Ahkamuhu wa Hududuhu fi al-Shari'ah al-Islamiyyah wa al-Qanun al-Wad'i*, p. 33.</ref> [[Wahbah al-Zuhayli|Wahbah Mustafa al-Zuhayli]] considers the prohibition of abortion without an excuse after four months to be a matter of agreement among Sunni scholars – contemporary and past.<ref>Al-Zuhayli, *Al-Fiqh al-Islami wa Adillatuh*, vol. 4, p. 2646.</ref> However, some contemporary Sunni jurists permit intentional abortion before forty days, even without an excuse, and after forty days, they only permit it with an excuse.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 386.</ref>

Most contemporary Sunni jurists, despite accepting the prohibition of intentional abortion after the ensoulment of the soul, believe that if it is proven by medical science that the birth of the fetus will cause the mother's death, not only is abortion permissible, but according to some of them, like [[Yusuf al-Qaradawi]], abortion becomes obligatory.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 380.</ref>

In most contemporary jurisprudential writings, reasons such as "the lesser of two harms" (akhaff al-dararayn) or "the lesser of two evils" (ahwan al-sharrayn) or "securing a greater benefit" (jalb maslahah 'uzma) have been invoked to give precedence to the mother's life over the fetus's life.<ref>Qamashi, "Intentional Abortion from the Sunni Perspective," p. 382.</ref> Therefore, when faced with the necessity of enduring one of two harms or obtaining one of two benefits, reason chooses to endure the lesser harm or obtain the greater benefit.

== Most Important Study Resources ==
Numerous books, articles, and theses have been written on the topic of abortion;
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# *Therapeutic Abortion and Fetal Reduction from Medical, Jurisprudential, Legal, and Ethical Perspectives*, by a group of authors, Tehran, SAMT, 2015. [https://pic.ketab.ir/DataBase/bookpdf/94/94310096.pdf See the book's table of contents here]
# *Al-Ijhad bayn al-Ibahah wa al-Tajrim* [Abortion between Permissibility and Criminalization], by Mayada Mustafa Muhammad al-Mahruqi, Egypt, Alexandria, Dar al-Jami'ah al-Jadidah, 2014. This book was first submitted as a doctoral dissertation in 2012 to the Faculty of Law at Mansoura University, Egypt. [http://193.227.1.161/eulc_v5/Libraries/Thesis/BrowseThesisPages.aspx?fn=PublicDrawThesis&BibID=11395868 See the dissertation here]
# *Mabani va Mavared-e Javaz-e Seq-e Janin dar Fiqh-e Imamiyyeh va Huquq-e Iran* [Foundations and Cases of Permissibility of Abortion in Imami Jurisprudence and Iranian Law], by Ehsan Abdoltajdini, Faculty of Literature and Humanities, Razi University, 2018. [https://ganj.irandoc.ac.ir/viewer/578372b8a157e66a365d7aad4e9abf83?sample=1 See the first 20 pages of the thesis here]
# *Al-Ijhad wa Mawani' al-Haml fi al-Maqasid al-Shar'iyyah wa al-Majma' al-Fiqhi* [Abortion and Contraception in the Objectives of Sharia and the Fiqh Academy], by Bushra Fa'iz Sa'id Haj Hamdan, Malaysia, International Islamic University, 2019. [https://www.academia.edu/39104219 Access the thesis here]. Master's thesis.
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==Footnotes==
{{footnotes}}

==References==
{{References}}
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* Safi Golpayegani, Lotfollah, *Istifta'at-i Pizishki*, Qom, Dar al-Qur'an al-Karim, 1415 AH.
* Safi Golpayegani, Lotfollah, *Jami' al-Ahkam*, Qom, Intisharat-i Hazrat-i Ma'sumah, 1417 AH.
* Al-Saduq, Muhammad ibn 'Ali ibn Babawayh, *Man La Yahduruhu al-Faqih*, Qom, Daftar-i Intisharat-i Islami, 1413 AH.
* Tabataba'i Yazdi, Sayyid Muhammad Kazim, *Al-'Urwat al-Wuthqa (al-Muhashsha)*, Qom, Daftar-i Intisharat-i Islami, 1419 AH.
* Fazel Lankarani, Mohammad, *Ahkam-i Pizishkan va Bimaran*.
* Fazel Lankarani, Mohammad, *Tafsil al-Shari'ah fi Sharh Tahrir al-Wasilah - al-Diyat*, Qom, Markaz-i Fiqhi-i A'immah-i Athar 'Alayhim al-Salam, 1418 AH.
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* Qamashi, Sa'id, "Isqat-i 'Amdi-i Janin az Didgah-i Ahl-i Sunnat" [Intentional Abortion from the Sunni Perspective], *Faslnameh-ye Barvari va Nabarvari*, vol. 6, no. 4, Autumn 2005.
* Golpayegani, Sayyid Mohammad Reza, *Irshad al-Sa'il*, Beirut, Dar al-Safwah, 1413 AH.
* Golpayegani, Sayyid Mohammad Reza, *Majma' al-Masa'il*, Qom, Dar al-Qur'an al-Karim, 1409 AH.
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{{end}}
[[fa:سقط جنین]]
[[ar:الإجهاض]]
[[Category:Contemporary Jurisprudence Articles]]

File:Seyed Abbas Mousavian.jpg

2026-09-18T18:29:54Z

Enadmin:

Seyed Abbas Mousavian

2026-09-18T18:29:12Z

Enadmin: Created page with "{{Author |author = Reza Shams |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} {{Infobox person|name=Seyed Abbas Mousavian|birth=1339 SH|death=1399 SH|image=Seyed Abbas Mousavian.jpg|position=Authority on Islamic banking, member of the Board of Trustees of Imam Sadiq University (a)|religion=Shia Islam|nationality=Iranian|field of expertise=Economic jurisprudence|works in contemporary jurisprudence=''Interest-Free Banking: From Theory to Pract..."

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{{Infobox person|name=Seyed Abbas Mousavian|birth=1339 SH|death=1399 SH|image=Seyed Abbas Mousavian.jpg|position=Authority on Islamic banking, member of the Board of Trustees of Imam Sadiq University (a)|religion=Shia Islam|nationality=Iranian|field of expertise=Economic jurisprudence|works in contemporary jurisprudence=''[[Interest-Free Banking: From Theory to Practice]]'' • [[Islamic Capital Market]] • [[:Category:Books by Seyed Abbas Mousavian|Other books by Mousavian]] |views=|teachers=|students=|website=}}

* '''Abstract'''

'''Seyed Abbas Mousavian''' (1339 SH–1399 SH) was a Shia economist, an authority on [[Islamic banking]], and a member of the [[Jurisprudential Council of the Central Bank of the Islamic Republic of Iran]]. Mousavian has been regarded as one of the individuals influential in shaping Iran’s financial laws.

He authored numerous scholarly works on Islamic banking and Islamic financial instruments, including the books [[Foundations of Islamic Finance (book)|Foundations of Islamic Finance]], [[Islamic Capital Market (book)|Islamic Capital Market]], [[Stock Speculation from the Perspective of the Sharia (book)|Stock Speculation from the Perspective of the Sharia]], [[Jurisprudential Foundations of the Money and Capital Markets (book)|Jurisprudential Foundations of the Money and Capital Markets]], [[Islamic Banking: Theoretical Foundations and Practical Experiences (book)|Islamic Banking: Theoretical Foundations and Practical Experiences]], and [[Islamic Financial Instruments: Sukuk (book)|Islamic Financial Instruments (Sukuk)]].

Mousavian’s views in the field of Islamic banking include the following: 1. The use of exchange-based contracts (banking contracts with fixed returns) and their important role in Islamic banking; 2. The superiority of the Islam-centered method over the jurisprudence-centered method in Islamic banking; 3. The permissibility of the [[penalty for delayed repayment of loan installments]].

According to Mousavian, the literature of Islamic economics comprises three components: the “Islamic economic system,” the “Islamic financial system,” and “economic jurisprudence.” The objective of the Islamic economic system is to establish public welfare. He regarded the Islamic financial system as a subsystem of the Islamic economic system whose purpose is financing (through the creation of Islamic financial instruments) and reducing the risk involved in transactions. In his view, economic jurisprudence is responsible for deriving prescriptive rulings (such as the ruling on usury) or declaratory rulings (such as the transfer of ownership) concerning financial and economic conduct and relations.

Abbas Mousavian accepted certain financial instruments, such as [[qard al-hasan securities]], [[murabaha securities]] in some of their forms, and [[lease securities]], as Islamic financial instruments. He regarded these securities as appropriate alternatives to [[bonds]] and [[preferred shares]]—which are generally based on interest (usury).

Mousavian maintained that, in creating and using Islamic financial instruments, matters such as the conformity of [[securities]] with the standards of the Sharia and Imami jurisprudence, the accounting issues associated with securities, the microeconomic and macroeconomic effects, and the risk involved in trading securities must be considered. He also paid attention to the legitimacy and acceptability of financial instruments at the international and interdenominational levels.

== Introduction ==
Seyed Abbas Mousavian was a graduate of the Qom Seminary, a specialist in [[economic jurisprudence]], and an authority on [[Islamic banking]] and financial matters. On the occasion of Mousavian’s death, jurists such as [[Seyed Ali Khamenei]], [[Sadeq Amoli Larijani]], [[Alireza Arafi]], [[Ahmad Moballeghi]], and [[Ali Akbar Rashad]] praised his knowledge of economic jurisprudence in their messages.<ref>“Selections from the Numerous Messages of Condolence,” website of the Monetary and Banking Research Institute of the Central Bank of the Islamic Republic of Iran.</ref> According to Mohammad Javad Tavakkoli, associate professor in the Department of Economics at the Imam Khomeini Institute (r), Mousavian adopted an applied approach to issues of Islamic economics and influenced the implementation of certain laws in this field. Some areas of his influence are as follows:

# The Banking System Transformation Plan; influential in the Fifth Development Plan Law.
# The lease securities or sukuk plan for the Securities and Exchange Organization; it prepared the ground for the issuance of banking sukuk under the Fifth Development Plan Law.
# The design of various forms of sukuk for the securities market and the amendment of certain laws governing this market.<ref>“Seyed Abbas Mousavian: Discourses and Interviews,” pp. 302-303.</ref>

Mousavian produced more than one hundred works in the field of Islamic economics, both individually and collaboratively.<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” pp. 277-278.</ref> His individually authored works include the books Islamic Banking: Theoretical Foundations and Practical Experiences, Islamic Financial Instruments (Sukuk), and [[Islamic Capital Market (book)|Islamic Capital Market]].<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” pp. 277-278.</ref> Mousavian received several awards, including the World Award for Islamic Humanities and the Shahid Sadr Award.<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” pp. 277-278.</ref>

Mousavian held numerous executive positions and responsibilities, including:

* Membership in the [[Jurisprudential Council of the Central Bank of the Islamic Republic of Iran]];

* Jurisprudential adviser to the Export Development Bank of Iran;
* Special adviser to the secretary-general for jurisprudential and economic affairs at the Iranian Leasing Companies Association;
* Membership in the Board of Trustees of [[Imam Sadiq University (a)]].<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” pp. 277-278.</ref>

=== Biography ===
Seyed Abbas Mousavian was born on 2 Khordad 1339 SH in Ajab Shir County in East Azerbaijan Province.<ref>“Biography of Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” Ijtihad Network website.</ref> In 1360 SH, amid the Iranian Cultural Revolution, he withdrew from university and began studying religious sciences at the [[Qom Seminary]].<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” p. 278.</ref> Beginning in 1368 SH, he attended advanced courses in jurisprudence and principles of jurisprudence for ten years.<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” p. 278.</ref> In 1384 SH, Mousavian defended his Level Four seminary dissertation in economic jurisprudence, entitled “The Jurisprudential Rulings of Securities.”<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” p. 278.</ref> In addition to his seminary education, he studied theoretical economics at the master’s level at Shahid Beheshti University in Tehran.<ref>“An Overview of the Life and Activities of the Late Hujjat al-Islam wa-l-Muslimin Seyed Abbas Mousavian,” p. 278.</ref>

== General Foundations in Islamic Economic Research ==
Some of Seyed Abbas Mousavian’s foundational views concerning Islamic economics are as follows:

=== Distinction between the Islamic Economic System, the Islamic Financial System, and Economic Jurisprudence ===
According to Mousavian, the literature of Islamic economics comprises three distinct components: the “Islamic economic system,” the “Islamic financial system,” and “economic jurisprudence.”

* The Islamic economic system is a system intended to establish public welfare on the basis of Islamic principles. According to Mousavian, to achieve public welfare as its ultimate objective, the Islamic economic system requires three intermediate objectives: economic justice, economic security, and economic growth and development.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 5-10.</ref>
* The Islamic financial system is a subsystem of the Islamic economic system responsible for financing (through the creation of Islamic financial instruments) and reducing the risk involved in transactions.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 5-10.</ref>
* Economic jurisprudence explains the rulings governing property and its related relationships in the three fields of production, distribution, and consumption; this discipline includes deriving prescriptive rulings (such as the ruling on [[usury]]) or declaratory rulings (such as the transfer of ownership) concerning financial and economic conduct and relations.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 12-20.</ref>

On this basis, in the [[Foundations of Islamic Finance (book)|book Foundations of Islamic Finance]], Mousavian identifies four elements as the foundations of the Islamic economic system and its related subsystems:

# Islamic doctrinal and theological foundations, including Islam’s underlying worldviews concerning God, existence, humanity, and society.
# Positive and negative divine traditions governing human societies, based on felicity and proximity to God or wretchedness and remoteness from Him; such as the effect of the traditions of Godwariness and gratitude on the economic life of Islamic societies.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, p. 15.</ref>
# Economic ethics, defined in three areas: the relationship between the human being and God, the relationship between the human being and property, and the relationship between the human being and other human beings. These ethics are founded on immaterial causal relationships and divine traditions and affect the livelihood of individuals and society through immaterial and incalculable means. Ethical economic conduct (in a form outside the framework and principles legally established for it) contributes to the overarching objectives of the Islamic economic system, with functions and outcomes such as poverty alleviation, development, security, and economic justice.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 17-19.</ref> Although recommended rulings are jurisprudential, Mousavian classified them under economic ethics.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, p. 20.</ref>
# Economic jurisprudence, which encompasses rulings governing conduct and relationships concerning property in the three areas of production, distribution, and consumption. These rulings direct individuals’ economic activities toward the objectives of the Islamic economic system. <ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 12-20.</ref>

=== Foundations of Financial Instruments (Sukuk or Securities) According to Mousavian ===
In connection with the creation and use of Islamic financial instruments, Mousavian considered the following points:

# The definition of financial instruments must ensure conformity with the standards of the Sharia and Imami jurisprudence.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 48-49.</ref>
# In addition to religious and legal requirements and frameworks, matters such as accounting issues and the risk involved in trading the instrument must be assessed.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 48-49.</ref>
# Attention must be paid to the legitimacy and acceptability of financial instruments at the international and interdenominational levels so that they possess international legitimacy and acceptability.<ref>Mousavian and Tavhidi, Foundations of Islamic Finance, pp. 52-58.</ref>
# Attention must be paid to the economic foundations of financial instruments. The economic foundations of financial instruments mean principles and criteria other than the religious conditions and principles stipulated for transactions. For example, in an instrument such as lease securities, in addition to the religious conditions and rulings governing leases, other criteria must be observed for the securities to become an efficient financial instrument. These criteria may be divided into the microeconomic foundations and macroeconomic foundations of financial instruments. Two criteria and foundations of microeconomics are as follows: 1. Liquidity: the capacity of financial instruments to be liquidated and rapidly converted into money. 2. Efficiency: the relative superiority of certain financial instruments over similar instruments in fulfilling customers’ objectives and motivations. Moreover, one of the criteria identified in the field of the macroeconomics of financial instruments is the financial instrument’s alignment with economic growth and justice.<ref>Mousavian, Islamic Financial Instruments, pp. 253-267.</ref>

=== '''Using the Methods and Instruments of Conventional Economics in Islamic Economics''' ===
Mousavian maintains that methods and approaches developed within the conventional economic system are not incompatible with the Islamic economic system. According to him, these methods can be modified within the framework of the Islamic economic system and incorporated into the issues of Islamic economics.<ref>Mousavian, Islamic Banking, p. 29.</ref>

== Mousavian’s Views on Islamic Banking ==
Mousavian held several views in the field of Islamic banking, including the following:

=== '''The Important Role of Exchange-Based Contracts in Islamic Banking Compared with Partnership Contracts''' ===
It has been stated that Mousavian’s early thought on banking emphasized the application of [[partnership contracts]] (contracts without a fixed rate of return and based on profit and loss),<ref>Ghafourzadeh, “An Examination of the Development of Professor Mousavian’s Thought concerning the Position of Exchange-Based and Partnership Contracts in Resource Allocation,” p. 87.</ref> but later (for example, in the “book Islamic Banking,” one of his final books), he regarded [[exchange-based contracts]], such as [[murabaha contract|murabaha]], as possessing strong narrative foundations, being effective in Islamic banking, and being superior to partnership contracts.<ref>Ghafourzadeh, “An Examination of the Development of Professor Mousavian’s Thought concerning the Position of Exchange-Based and Partnership Contracts in Resource Allocation,” p. 88.</ref>

=== '''Permissibility of Penalties for Delayed Payment''' ===
According to Seyed Abbas Mousavian, a [[penalty for delayed payment]] is a means of reducing losses resulting from delayed payment of debts. He maintains that failure to pay debts on time leads to a reduction in deferred transactions, the erosion of public trust, a reduction in qard al-hasan loans, the imposition of heavier collateral and guarantees, and a decrease in the volume of financial exchanges.<ref>Mousavian, “A Jurisprudential-Legal Examination of Laws concerning Penalties and Compensation for Delayed Payment in Iran,” p. 12.</ref>

=== Superiority of the Islam-Centered Method over the Jurisprudence-Centered Method ===
One method for assessing banking matters and financial instruments is the jurisprudence-centered method; that is, banking methods or financial instruments must not conflict with jurisprudence. Moving beyond this view, Mousavian advocated replacing the jurisprudence-centered method with an Islam-centered method. The Islam-centered method adopts a systemic and multidimensional approach to human conduct and interactions. Some researchers in economic jurisprudence have regarded Mousavian’s theory as a movement toward the development of knowledge in this field.<ref name=":0">Mirmoezzi and Ghafouri, “The Development of Professor Mousavian’s Intellectual Method: From the Jurisprudence-Centered Method to the Islam-Centered Method,” pp. 40-58.</ref>

==== Explanation of the Jurisprudence-Centered Method ====
In the jurisprudence-centered method, two stages—jurisprudentialization and jurisprudential establishment—are discussed so that conformity with jurisprudence becomes a criterion for Islamic banking. Mousavian maintained that, at the jurisprudentialization stage, financial institutions are evaluated and reconstructed on the basis of Islamic jurisprudence through an approach based on the [[presumption of validity]]. According to Mousavian, at the jurisprudential establishment stage, a new model based on Shia jurisprudence must be presented or reproduced for financial institutions and instruments that have no precedent in conventional economics.<ref>Mirmoezzi and Ghafouri, “The Development of Professor Mousavian’s Scientific Method from the Jurisprudence-Centered Method to the Islam-Centered Method,” pp. 48-55.</ref>

==== Explanation of the Islam-Centered Method and Its Superiority ====
Rather than restricting itself to jurisprudence, the Islam-centered method uses all Islamic data—including ethical rulings, jurisprudence, divine traditions, and the objectives and principles of Islam—in constructing the economic system. Ghafouri and Mirmoezzi, researchers in jurisprudence, state that a study of Mousavian’s works demonstrates that, in some of them, he considered ethical principles or divine traditions when constructing an economic system. They identify the “article Religion and Economics” and the “book General Principles of the Islamic Economic System” as among Mousavian’s works in this field.<ref>Mirmoezzi and Ghafouri, “The Development of Professor Mousavian’s Scientific Method from the Jurisprudence-Centered Method to the Islam-Centered Method,” p. 58.</ref>

According to these researchers, in this method Mousavian, as in the jurisprudence-centered method, proceeded through two stages in economics: Islamization and Islamic establishment. Islamization means examining and reconstructing the conventional economic model on the basis of all Islamic data, including ethical rulings, jurisprudence, divine traditions, and the objectives and principles of Islam. The Islamic establishment method likewise means presenting a new economic model based on these criteria.<ref>Mirmoezzi and Ghafouri, “The Development of Professor Mousavian’s Scientific Method from the Jurisprudence-Centered Method to the Islam-Centered Method,” p. 59.</ref>

The superiority of the Islam-centered method over the jurisprudence-centered method lies in the fact that jurisprudence does not encompass all Islamic teachings in every respect, because jurisprudential knowledge does not necessarily correspond to the Preserved Tablet and is a conjectural and ijtihadi process. Accordingly, a model concerning financial institutions and instruments may not conflict with jurisprudence but may nevertheless contradict the principal foundations of the Sharia, such as justice, security, and freedom.<ref>Mirmoezzi and Ghafouri, “The Development of Professor Mousavian’s Scientific Method from the Jurisprudence-Centered Method to the Islam-Centered Method,” p. 63.</ref>

=== '''No Distinction between Bank Interest and Usury''' ===
By equating [[bank interest]] with usury, Mousavian regarded views distinguishing between the two as incorrect and invalid.<ref>Mousavian and Meysami, “A Critique and Examination of New Views concerning Usury and Bank Interest,” p. 7.</ref> Mousavian refers to several such views:

# Usury as an economic necessity of the present age: According to this theory, bank interest or usury is necessary for economic development in the present age and plays an effective role; pursuant to the maxim “necessities permit prohibitions” (al-darurat tubih al-mahzurat), rulings are relaxed in circumstances of harm.<ref>Mousavian, Financial Instruments, pp. 162-163.</ref>
# Restricting usury to interest charged by private banks: On this basis, bank interest constitutes usury and is prohibited only when it relates to private banks, not state-owned banks, because state-owned banks are not exploitative institutions and have not been established to generate profits. Abbas Mousavian attributes this theory to [[Mohammad Hadi Marefat]].<ref>Mousavian, Financial Instruments, p. 160.</ref>
# Restricting usury to an increase charged for extending the term: According to this view, prohibited usury is money paid to a lender in return for extending the repayment period of a loan. Mohammad Rashid Rida expressed this view in “Tafsir al-Manar” under Verse 130 of Sura Al Imran and in the “book al-Riba wa-l-Mu‘amalat fi al-Islam.” Interest charged in modern banking does not possess this characteristic.<ref>Mousavian, Financial Instruments, pp. 150-164.</ref>

In rejecting these theories, Mousavian maintains that engagement in genuine transactions must be regarded as the principal means of earning profit and that new transactions arising from the expansion of the banking system must be carefully examined to ensure that they are free of every form of loan-based and transactional usury.<ref>Mousavian, Financial Instruments, pp. 150-164.</ref>

=== '''Distinguishing Permissible and Impermissible Stratagems for Circumventing Usury''' ===
Mousavian divided stratagems for circumventing usury into permissible and impermissible stratagems. According to him, the criterion for impermissible stratagems is the absence of a genuine intention to undertake the alternative transaction or the applicability of usury to the stratagem despite the existence of a genuine intention. He maintained that this distinction depends largely on the parties’ intentions. In contrast, he classified spot and deferred sales, as well as the leasing of fixed assets, among permissible stratagems. He maintained that, in many transactions, because of the prohibition of usury, the parties genuinely intend to enter into permissible transactions.<ref>Mousavian, Financial Instruments, pp. 164-187.</ref>

== Securities from Mousavian’s Perspective ==
Abbas Mousavian accepted several financial instruments, such as [[qard al-hasan securities]],<ref>Mousavian, Islamic Financial Instruments, pp. 347-354.</ref> [[murabaha securities]] (in some of their forms),<ref>Mousavian, Islamic Financial Instruments, pp. 359-361.</ref> and lease securities<ref>Mousavian, Islamic Financial Instruments, pp. 372-374.</ref> as Islamic financial instruments. He regarded these securities as appropriate alternatives to [[bonds]] and [[preferred shares]]—which are generally based on interest.<ref>Mousavian, Islamic Financial Instruments, p. 345.</ref>

=== Bonds ===
Abbas Mousavian divides bonds into four categories (interest-bearing bonds, income bonds, prize bonds, and discount bonds). For each category, he reports and critiques the jurisprudential opinions of jurists and marjas, with most of the discussion concerning loans, usury, and the foundations of their prohibition.<ref>Mousavian, Islamic Capital Market, pp. 364-370.</ref> According to Mousavian, none of the justifications for considering various types of bonds permissible possesses a jurisprudential foundation; according to the definition of usury, every loan in which an increase is stipulated and the borrower undertakes to pay that increase constitutes usury and is prohibited.<ref>Mousavian, Islamic Capital Market, pp. 366-370.</ref>

=== Murabaha Securities ===
According to Mousavian, murabaha is a type of sale (purchase and sale) that, when structured as securities, represents the owner’s debt to the holder of the security.<ref>Mousavian, Islamic Financial Instruments (Sukuk), p. 355.</ref> Mousavian regards murabaha as legitimate in Imami jurisprudence and based on a narration from the sixth Imam of the Shia.<ref>Mousavian, “The Application of Murabaha in Interest-Free Banking,” p. 38; Kulayni, al-Kafi, 1407 AH, vol. 5, p. 201.</ref> According to Mousavian, trading murabaha securities includes transactions other than the murabaha sale; after examination, it appears that Shia jurists have regarded the purchase and sale of these securities as valid under certain assumptions.<ref>Mousavian, Islamic Financial Instruments (Sukuk), pp. 359-360.</ref>

=== Ordinary Shares ===
According to Mousavian, shares are a new phenomenon with no precedent in jurisprudential texts and constitute one of the newly arising issues.<ref>Mousavian, Islamic Capital Market, pp. 387-399.</ref> Mousavian maintains that, provided the activities of public joint-stock companies concern legitimate subjects and are conducted in accordance with religious standards, the establishment of such companies and their operation within the framework of specific laws and regulations present no jurisprudential problem.<ref>Mousavian, Islamic Capital Market, p. 399.</ref>

=== Preferred Shares ===
Seyed Abbas Mousavian maintains that certain preferred shares present no jurisprudential problem, while others are prohibited. He regards “non-cumulative fixed-dividend preferred shares” and “non-cumulative participating preferred shares” as permissible, while considering “cumulative fixed-dividend preferred shares,” “cumulative participating preferred shares,” and “floating-rate preferred shares” to be instances of impermissible stratagems and usury.<ref>Mousavian, Islamic Capital Market, p. 415.</ref>

== Internal Links ==
Summaries of several books by Seyed Abbas Mousavian have been written in the [[Encyclopedia of Contemporary Jurisprudence]]:

* [[Foundations of Islamic Finance (book)|Foundations of Islamic Finance]]
* [[Islamic Capital Market (book)|Islamic Capital Market]]
* [[Stock Speculation from the Perspective of the Sharia (book)|Stock Speculation from the Perspective of the Sharia]]
* [[Jurisprudential Foundations of the Money and Capital Markets (book)|Jurisprudential Foundations of the Money and Capital Markets]]

==Footnotes==
{{Footnotes}}

==Sources==
{{References}}
* Ghafourzadeh, Hossein, “An Examination of the Development of Professor Mousavian’s Thought concerning the Position of Exchange-Based and Partnership Contracts in Resource Allocation,” Collected Articles: Commemoration of Professor Seyed Abbas Mousavian, Tehran, Islamic Research Institute for Culture and Thought Publishing Organization, 1403 SH.
* Fazel and Nikpour, “A Critique of Professor Mousavian’s View concerning the Stages of the Legislation of the Ruling on Usury in the Quran,” Collected Articles: Commemoration of Professor Seyed Abbas Mousavian, Tehran, Islamic Research Institute for Culture and Thought Publishing Organization, 1403 SH.
* [https://mbri.ac.ir/IslamicBanking/IslamicBanking_Page?News_ID=344810 “Selections from the Numerous Messages of Condolence”], website of the Monetary and Banking Research Institute of the Central Bank of the Islamic Republic of Iran, publication date: 20 Mordad 1399 SH, access date: 3 Esfand 1404 SH.
* [https://www.mbri.ac.ir/IslamicBanking/IslamicBanking_Page?News_ID=344807&tknfv=%3Ed08088e4-fc9e-40ae-ae34-06be8bc0pooo11p “Mousavian: Jurist-Economist and Distinguished Professor of Finance”], website of the Monetary and Banking Research Institute; access date: 1404/11/15 SH.
* Mousavian, Seyed Abbas, Islamic Financial Instruments (Sukuk), Tehran, Islamic Research Institute for Culture and Thought Publishing Organization, 15th ed., 1402 SH.
* Mousavian, Seyed Abbas, and Mohammad Tavhidi, Foundations of Islamic Finance, Tehran, Imam Sadiq University Press (a), 1402 SH.
* Mousavian, Seyed Abbas, Islamic Capital Market, Tehran, Islamic Research Institute for Culture and Thought, 1391 SH.
* Mirmoezzi, Seyed Hossein, and Hossein Ghafourzadeh, “The Development of Professor Mousavian’s Intellectual Method: From the Jurisprudence-Centered Method to the Islam-Centered Method,” Collected Articles: Commemoration of Professor Seyed Abbas Mousavian, Tehran, Islamic Research Institute for Culture and Thought Publishing Organization, 1403 SH.
* Yousefi, Ahmad, Collected Articles: Commemoration of Professor Seyed Abbas Mousavian, Tehran, Islamic Research Institute for Culture and Thought Publishing Organization, 1403 SH.

{{End}}
[[Category:Biographical articles]]
[[fa:سید عباس موسویان]]

Treating women as awra

2026-09-18T18:22:59Z

Enadmin: Created page with "{{Author |author = Mahdi Shajarian |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' '''Regarding women as awra''' is the predominant view among jurists and is based on several narrations that regard women as awra. On this basis, rulings have been issued requiring maximal covering, sometimes including the face and hands; recommending confinement to the home; Women’s Assumption of Social Offices|prohibiting women from assumi..."

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* '''Abstract'''

'''Regarding women as awra''' is the predominant view among jurists and is based on several narrations that regard women as awra. On this basis, rulings have been issued requiring maximal covering, sometimes including the face and hands; recommending confinement to the home; [[Women’s Assumption of Social Offices|prohibiting women from assuming social offices]]; [[Women Serving as Judges|prohibiting women from serving as judges]]; and [[Women’s Singing|prohibiting women from singing]]. In contrast, the second view comprises the criticisms of certain contemporary authors who, by questioning the issuance of the narrations and relying on their conflict with the overall spirit of the Holy Quran, have rejected the authority of this proposition. According to this group, the Quran affirms women’s social presence, honors their status, and reserves the punishment of confinement to the home for women who engage in indecency. Through historical analysis and reference to the exception concerning female slaves, this group maintains that, even assuming their issuance, the ruling in question is not an intrinsic truth—a universal proposition—but rather a ruling pertaining to the cultural conditions of the period of issuance and an external proposition that was temporary in nature and consistent with the customs of its time.

== Status of Regarding Women as Awra in Jurisprudence ==
The question of women’s social status and the religious limits of their presence is among the controversial issues in Islamic thought. In this context, the doctrine that “women are awra,” found in certain narrative and jurisprudential texts, has served as the basis of rulings centered on women’s concealment, such as the prohibition against assuming social and judicial offices and the recommendation that women remain at home. Accordingly, accepting or rejecting this doctrine has a fundamental impact on interpreting the limits of women’s participation in society.

=== Obligation and Scope of Women’s Hijab ===
The first consequence of accepting that women are awra is establishing the obligation of religious hijab, for which some jurists, in addition to other proofs, have also cited the characterization of women as awra.<ref>See: Majlisi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, vol. 8, p. 106.</ref> In addition to the fundamental obligation of hijab, some jurists, relying on the unrestricted scope of these narrations and the characterization of a woman’s entire body as awra,<ref>Abu al-Salah al-Halabi, al-Kafi fi al-Fiqh, p. 139.</ref> maintain that this ruling encompasses the entire body without exception. Citing Sunni narrations that regard a woman’s body as awra without exception, they emphasize the necessity of covering even the face and hands.<ref>Borujerdi, Tibyan al-Salat, vol. 3, pp. 252-253.</ref> Some jurists have gone beyond the text and regarded the absolute characterization of women as awra as an “innate and rational” rule. According to them, every person possessing a sense of honor discovers by consulting their conscience that the “principle of being awra” (asalat al-‘awriyya) is a rule concerning women and that the law of hijab is self-evident to every person of sound nature who is concerned with preserving honor.<ref>Sabzevari, Muhadhdhab al-Ahkam, vol. 5, p. 232.</ref> In contrast, by considering other proofs together, many jurists have excluded the face and hands<ref>Bahr al-Ulum, al-Durra al-Najafiyya, p. 105; Karaki, Jami‘ al-Maqasid fi Sharh al-Qawa‘id, vol. 2, p. 96.</ref> and the hair of female slaves<ref>Al Asfur, al-Anwar al-Lawami‘ fi Sharh Mafatih al-Shara’i‘, vol. 10, pp. 382-383.</ref> from the scope of awra.

=== Confinement to the Home and Avoidance of Social Presence ===
On the basis of the instruction “وَ اسْتُرُوا عَوْرَاتِهِنَّ بِالْبُیوتِ” (“conceal their awra in houses”), jurists have regarded women’s social presence as undesirable. The argument is that because a woman is awra and the exposure of awra causes shame and disgrace, a woman’s appearance likewise causes shame. Some have explicitly stated that women should remain at home as much as possible and that speaking with them, even greeting them, should be avoided so that their “ayy”—inability to speak—and ignorance are not exposed.<ref>Majlisi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, vol. 8, p. 106.</ref> On this basis, many jurists, including [[Sayyid Mohammad Kazem Tabatabaei Yazdi|the author of al-Urwa]], have issued fatwas regarding the “recommendation of confining women to the home.”<ref>Yazdi, al-Urwa al-Wuthqa, vol. 5, p. 490.</ref> Other jurists, in their annotations on this fatwa, have likewise identified the narrations characterizing women as awra as one of its principal proofs.<ref>Sabzevari, Muhadhdhab al-Ahkam, vol. 24, p. 26; Abu al-Qasim Khoei and Javad Tabrizi, Sirat al-Najat fi Ajwibat al-Istifta’at, vol. 8, p. 221.</ref>

=== Prohibition against Assuming the Marja‘iyya and Judgeship ===
Another consequence of regarding women as awra is the impermissibility of their assuming social and religious offices that require presence in society. The jurisprudential argument is based on the question of how a person described as “awra” and commanded to be concealed can assume responsibility for issuing fatwas, the marja‘iyya, and judgeship. These matters intrinsically require meeting people and responding to emerging events, and such a status is incompatible with the condition envisioned for women—absolute concealment.<ref>Safi Golpayegani, Dhakhirat al-‘Uqba, vol. 1, pp. 123-124.</ref>

=== Prohibition of Singing ===
Some jurists have extended the scope of awra to the voice as well. According to them, being awra entails the “obligation of concealment,” and the form of such concealment varies according to its object: just as the body must be concealed from sight, the voice must also be concealed from the hearing of an unrelated man. Therefore, irrespective of the prohibition of [[ghina]], the very act of [[Women’s Singing|making one’s voice audible to men]] (isma‘ al-sawt) becomes prohibited because a woman is awra.<ref>Eshtahardi, Madarik al-Urwa, vol. 15, p. 128.</ref>

== Predominant View of Jurists: Woman as Awra ==
The characterization of women as awra has been accepted by the majority of jurists, and [[Yousef Sanei]] (d. 1399 SH), who is known for uncommon fatwas concerning women, also accepted it,<ref>Sanei, “[https://saanei.xyz/?view=01,02,09,2916,0 Rulings on Looking, Hijab, and Covering]”</ref>

=== Narrative Proofs ===
In Shia narrative sources, the description of women as “awra” has a long history. Women are sometimes emphatically characterized as awra: “إِنَّمَا هُنَّ عَوْرَةٌ” (“They are indeed awra”);<ref>Kulayni, al-Kafi, vol. 5, p. 511.</ref> sometimes it is reported that, according to the prevalent understanding among the Prophet’s companions, including Imam Ali (a), women were regarded as awra;<ref>Kufi, al-Ja‘fariyyat–al-Ash‘athiyyat, p. 95.</ref> and sometimes it is emphasized that a woman’s being awra continues until her death.<ref>Attributed to Imam al-Rida (a), Sahifat al-Rida, p. 70.</ref> In Sunni sources, expressions such as “women are awra” and statements that a woman’s body and physical form are awra are encountered.<ref>Borujerdi, Tibyan al-Salat, vol. 3, p. 251.</ref> Other narrations also exist in Shia sources,<ref>Hurr al-Amili, Wasa’il al-Shi‘a, vol. 20, p. 66.</ref> including a narration from Imam al-Sadiq (a), transmitted from the Commander of the Faithful (a) and the Noble Prophet (s), stating: “النِّسَاءُ عَیٌّ وَ عَوْرَةٌ فَاسْتُرُوا عیهُنَّ بِالسُّکوتِ، وَ اسْتُرُوا عَوْرَاتِهِنَّ بِالْبُیوتِ؛ Women are incapable of speech and are awra; therefore, conceal their inability to speak through silence and conceal their being awra in houses.”<ref>Kulayni, al-Kafi, vol. 5, p. 535.</ref> Some jurists have explicitly stated that, even if the chains of transmission of these narrations are weak, they are accepted because jurists have acted in accordance with their purport.<ref>Borujerdi, Tibyan al-Salat, vol. 3, p. 251.</ref>

=== Conceptual Analysis ===
Awra refers to the human genital organs and also to anything concerning which one feels shame.<ref>Farahidi, Kitab al-‘Ayn, vol. 2, p. 237.</ref> Linguistically, “awra” has a general meaning and applies to anything whose exposure causes disgrace, dishonor, and shame.<ref>Turayhi, Majma‘ al-Bahrayn, vol. 3, p. 416; Raghib al-Isfahani, Mufradat Alfaz al-Quran, vol. 1, p. 595.</ref> The genital organs constitute only one instance of this concept, not its entire meaning; thus, the Holy Quran also calls houses that have defects and require protection awra: “[[Verse 13 of Sura al-Ahzab|Indeed, our houses are awra]]” (اِنَّ بُیوتَنا عَوْرَةٌ). Most jurists have understood awra in this same general lexical sense. On this basis, the instance of awra in men is limited to a particular organ, whereas in women its scope is expanded to include the “entire body” and physical form.<ref>Halabi, al-Kafi fi al-Fiqh, p. 139; Ibn Hamza, al-Wasila ila Nayl al-Fadila, p. 89; Ibn Barraj, al-Muhadhdhab, vol. 1, p. 84; Bahrani, al-Hada’iq al-Nadira fi Ahkam al-Itra al-Tahira, vol. 7, p. 7; Bahr al-Ulum, al-Durra al-Najafiyya, p. 105.</ref>

[[Sayyid Hossein Tabatabaei Borujerdi|Ayatollah Borujerdi]] maintains that the term awra was coined to mean the genital organs and is used in this same sense in the narrations under consideration. Its application to women is by way of “simile,” although the particle of comparison has been omitted for greater emphasis and eloquence. Borujerdi maintains that the most evident customary and religious characteristic of the genital organ—the awra—is the repugnance of exposing it and the obligation to keep it concealed, because exposing the genital organ arouses sexual desire and leads to improper conduct. This eloquent simile demonstrates that the same effect also exists in relation to women.<ref>Borujerdi, Tibyan al-Salat, vol. 3, pp. 251-253.</ref> On this basis, Borujerdi also regarded covering the face and hands as obligatory for women.<ref>Borujerdi, Tibyan al-Salat, vol. 3, p. 252.</ref>

== Claim of Weak Chains of Transmission for Narrations Regarding Women as Awra ==
It has been claimed that the hadith “A woman is awra” has no authoritative narrative basis.<ref>Kadivar, “[https://kadivar.com/10843/ A Reflection on the Question of Hijab]”.</ref> According to some authors, attributing this statement to the Noble Prophet (s) in Sunni sources faces difficulties. This narration does not appear in Sahih al-Bukhari or Sahih Muslim, and only al-Tirmidhi attributed it to the Prophet and provided its chain of transmission. Before him, Abd al-Razzaq al-San‘ani and Ibn Abi Shayba had transmitted this content, but recorded it as the statement and opinion of “Abd Allah ibn Mas‘ud,” not as a statement of the Prophet (s).<ref>Reyhan, “Authenticating and Dating the Narration ‘A Woman Is Awra’ in Narrative Sources,” pp. 115-117.</ref>

It has been stated that regarding women as awra has roots in the culture of ancient Iran and Hebrew texts—the Torah—and entered Arab culture from them. In ancient Iran and Jewish texts, concealing women and using the term awra in the sense of the private parts or a point of vulnerability were prevalent.<ref>Reyhan, “Authenticating and Dating the Narration ‘A Woman Is Awra’ in Narrative Sources,” pp. 111-112.</ref> According to certain studies, all Sunni narrations concerning this matter have weak chains of transmission; among the five existing narrations in Shia sources, only one is regarded as “hasan,” while the remainder are weak.<ref>Tayyebi, Safari, and Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” p. 105.</ref>

Some have also specifically criticized the expression “the voice of a woman is awra” (sawt al-mar’a awra) and regarded it as lacking a narrative origin in early Shia sources. This expression is not found in any early Shia narrative source and was first transmitted by Allama al-Hilli<ref>Allama al-Hilli, Ajwibat al-Masa’il al-Muhanna’iyya, p. 40.</ref> using the word “it has been narrated” (ruwi).<ref>Nirumand, Ref‘at, and Zhian, “A Critical Analysis of the Expression ‘A Woman’s Voice Is Awra’ as a Hadith and Jurisprudential Rule,” pp. 312-313.</ref>

== Conflict between Narrations Regarding Women as Awra and the Quran ==
Some contemporary authors maintain that the purport of the narration “A woman is awra” conflicts with the governing spirit of the Quran and its established principles. This conflict has been explained by relying on the rule of “comparing hadiths with the Quran,” for which numerous narrations are considered evidence.<ref>Kulayni, al-Kafi, vol. 1, p. 69.</ref> In this regard, jurists explicitly state that even if a narration has a sound chain of transmission and an explicit indication, it must be set aside if it conflicts with the Book of God.<ref>Allama al-Hilli, Muntaha al-Matlab fi Tahqiq al-Madhhab, vol. 3, p. 30; Bahrani, al-Hada’iq al-Nadira fi Ahkam al-Itra al-Tahira, vol. 10, pp. 45-46.</ref> [[Sayyid Mohammad Baqir al-Sadr|Shahid al-Sadr]] likewise maintains that narrations incompatible with the “general spirit of the Quran” and the nature of its laws, and having no parallel in the Quran, are not authoritative.<ref>Sadr, Buhuth fi ‘Ilm al-Usul, vol. 7, pp. 333-334.</ref>

=== Women’s Social Presence in the Quran ===
According to some authors, the Holy Quran affirms women’s social presence. For example, it speaks of women pledging allegiance to the Prophet (s),<ref>Al-Mumtahana, 12.</ref> recognizes women’s right, like that of men, to earn and benefit from income,<ref>Al-Nisa, 32.</ref> and recounts and affirms the story of the Queen of Sheba, who possessed a “mighty throne” and an extensive kingdom.<ref>Al-Naml, 23.</ref> The occasion of revelation of [[Verse 59 of Sura al-Ahzab]] also demonstrates that women were present in society during the early Islamic period; even when they were subjected to harassment in the streets, they were not commanded to remain at home, but were instead instructed to modify their covering.<ref>Shajarian, The Question of Chastity, pp. 220-226.</ref> By contrast, the narrations regarding women as awra condemn them to concealment, confinement, and remaining at home.

=== Honoring Women’s Personhood in the Quran ===
Opponents of regarding women as awra have regarded these narrations as incompatible with the Quran’s descriptions of women, because the Quran’s descriptions are positive and commendatory<ref>Tayyebi, Safari, and Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” p. 114.</ref> and place women and men on an equal footing regarding the possibility of servitude and divine reward.<ref>Al-Ahzab, 35; Al-Nahl, 97.</ref> It refers to women with expressions such as “a source of tranquility”<ref>Al-Rum, 21.</ref> and “garment,”<ref>Al-Baqara, 187.</ref> which conceals defects and serves as an adornment, rather than being a source of disgrace.<ref>Shajarian, The Question of Chastity, pp. 226-228.</ref> The word “awra,” however, is derived from the root “ar” (disgrace) and implies deficiency and shame.

=== Usage of the Word Awra in the Quran ===
Another objection raised against the narrations regarding women as awra is their incompatibility with the Quranic usage of the term awra. [[Verse 31 of Sura al-Nur]] speaks of children who have no awareness of women’s awra (لَمْ یظْهَرُوا عَلی عَوْراتِ النِّساءِ). Some exegetes have interpreted awra here as the genital organs or sexual matters.<ref>Zamakhshari, al-Kashshaf an Haqa’iq Ghawamid al-Tanzil, vol. 3, p. 232; Tabarsi, Majma‘ al-Bayan, vol. 7, p. 218.</ref> According to critics, the important point is that annexing “awra” to “women” demonstrates that woman and awra are two distinct realities; if a woman’s entire body were awra, the expression “the awras” (al-awrat) would have been used rather than “women’s awras” (awrat al-nisa).<ref>Tayyebi, Safari, and Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” p. 114.</ref>

=== Confinement to the Home as a Punishment for Sinful Women ===
One argument advanced by critics of regarding women as awra is that if all women must remain at home because they are awra, confinement to the home can no longer constitute a punishment specifically imposed on sinners.<ref>Tayyebi, Safari, and Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” p. 114.</ref> The Quran, however, establishes confinement to the home as a “punishment” for women who commit indecency—adultery: “[[Verse 15 of Sura al-Nisa|confine them to their houses]]” (فَأَمْسِکوهُنَّ فِی الْبُیوتِ). Ayatollah Makarem Shirazi, a contemporary marja, has also commented critically on the predominant fatwa recommending confinement by referring to the harmful consequences of confining women to the home—such as ill temper, ignorance of religious rulings, and feelings of inferiority that lead to attraction to false beliefs—and has regarded the observance of moderation as the priority.<ref>Makarem Shirazi, al-Hashiya ala al-Urwa al-Wuthqa, vol. 2, p. 755.</ref>

== Historical Approach and External-Proposition Interpretation of the Narrations ==
Critics maintain that, even if the issuance of the narrations regarding women as awra is accepted, these propositions are not universal propositions expressing a permanent ruling concerning the nature of women; rather, they pertain to the particular temporal, spatial, and cultural conditions of the period of issuance and constitute external propositions.<ref>Kadivar, [https://kadivar.com/9449/ “A Reflection on the Question of Hijab 2”].</ref> They have supported this claim with evidence such as an analysis of the concept of “ayy,” the insulting nature of these narrations, and the exception concerning female slaves.

=== Analysis of the Concept of “Ayy” ===
In the hasan narration that has received more discussion than the other narrations, women are also described as possessing “ayy,” meaning an inability to speak appropriately.<ref>Majlisi, Mir’at al-Uqul fi Sharh Akhbar Al al-Rasul, vol. 20, p. 373.</ref> According to critics, this description cannot pertain to the nature of women because, first, numerous counterexamples of eloquent women exist throughout history, and second, scientific and psychological studies demonstrate that women’s verbal and linguistic abilities are often superior to those of men. Therefore, the attribution of “ayy” to women in the narration refers to the cultural and historical deprivation of women during that period, not to any intrinsic inability. By the same indication, being “awra” is also a cultural and historical matter.<ref>Tayyebi, Safari, and Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” p. 116.</ref>

=== Negative and Insulting Connotations ===
On the basis of lexical studies, some maintain that the root of the word “awra” denotes “something whose exposure is repugnant.”<ref>Mostafavi, al-Tahqiq fi Kalimat al-Quran al-Karim, vol. 8, p. 260.</ref> Consequently, because insulting half of human society cannot be attributed to the Prophet (s), it must be stated that, if this statement was issued, it constituted a temporary description corresponding to the custom of that period, when a woman’s presence was regarded as a source of disgrace, and the Prophet made such a statement to preserve their honor.<ref>Shajarian, The Question of Chastity, pp. 235-237.</ref>

=== Exception of Female Slaves ===
According to some authors, one indication that being awra does not pertain to the nature of women is the jurisprudential ruling concerning female slaves. By the consensus of jurists, the heads and hair of female slaves—and, according to some opinions, even their bodies—are not awra, and covering them is not obligatory.<ref>Shahid al-Awwal, al-Durus al-Shar‘iyya fi Fiqh al-Imamiyya, vol. 1, p. 147; Shahid al-Thani, Rasa’il al-Shahid al-Thani, vol. 2, p. 735; Al Asfur, al-Anwar al-Lawami‘ fi Sharh Mafatih al-Shara’i‘, vol. 10, p. 382.</ref>If being “awra” were intrinsic to the female sex, no distinction should exist between a free woman and a female slave. This exception concerning female slaves and non-Muslim women demonstrates that the ruling concerning being awra and the obligation of complete covering was a social matter related to “status and position” during that period, not an ontological truth concerning all women.<ref>Shajarian, The Question of Chastity, pp. 238-239.</ref>

==Footnotes==
{{Footnotes|2}}

== Sources ==
{{References}}
* The Holy Quran.
* Al Asfur, Hossein ibn Mohammad, al-Anwar al-Lawami‘ fi Sharh Mafatih al-Shara’i‘, Qom, Islamic Research Center, n.d.
* Ibn Barraj, Abd al-Aziz ibn Nahrir, al-Muhadhdhab, Jafar Subhani Tabrizi, Qom, Islamic Publishing Institute, 1406.
* Ibn Hamza, Mohammad ibn Ali, al-Wasila ila Nayl al-Fadila, Mohammad Hassun and Mahmoud Marashi, Grand Ayatollah Marashi Najafi Library, n.d.
* Abu al-Salah al-Halabi, Taqi ibn Najm, al-Kafi fi al-Fiqh, Reza Ostadi, Isfahan, Imam Amir al-Mu’minin Ali (a) Public Library, 1403 AH.
* Eshtahardi, Ali Panah, Madarik al-Urwa, Tehran, Dar al-Uswa, 1417 AH.
* Bahr al-Ulum, Mohammad Mahdi ibn Morteza, al-Durra al-Najafiyya, Beirut, Dar al-Zahra, 1406 AH.
* Bahrani, Yusuf ibn Ahmad, al-Hada’iq al-Nadira fi Ahkam al-Itra al-Tahira, Qom, Islamic Publishing Institute, 1405 AH.
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* Khoei, Sayyid Abu al-Qasim, and Javad Tabrizi, Sirat al-Najat fi Ajwibat al-Istifta’at, Qom, Dar al-Siddiqa al-Shahida (a), 1383 SH.
* Raghib al-Isfahani, Hossein ibn Mohammad, Mufradat Alfaz al-Quran, Safwan Adnan Dawudi, Beirut, Dar al-Shamiyya, 1412 AH.
* Reyhan, Masoumeh, “Authenticating and Dating the Narration ‘A Woman Is Awra’ in Narrative Sources,” Hadith Studies, no. 33, Shahrivar 1404 SH.
* Zamakhshari, Mahmoud, al-Kashshaf an Haqa’iq Ghawamid al-Tanzil, Beirut, Dar al-Kitab al-Arabi, 1407 AH.
* Sabzevari, Sayyid Abd al-Ala, Muhadhdhab al-Ahkam, Qom, al-Manar Institute, 1413 AH.
* Shajarian, Mahdi, The Question of Chastity, Qom, Taha Publications, 1403 SH.
* Shahid al-Awwal, Mohammad ibn Makki, al-Durus al-Shar‘iyya fi Fiqh al-Imamiyya, Qom, Islamic Publishing Institute, 1417.
* Shahid al-Thani, Zayn al-Din ibn Ali, Rasa’il al-Shahid al-Thani, Islamic Propagation Office of the Qom Seminary, n.d.
* Safi Golpayegani, Ali, Dhakhirat al-‘Uqba fi Sharh al-Urwa al-Wuthqa, Ganj-e Erfan, n.d.
* Sanei, Yousef, [https://saanei.xyz/?view=01,02,09,2916,0 “Rulings on Looking, Hijab, and Covering,” Ayatollah Yousef Sanei’s Website].
* Sadr, Sayyid Mohammad Baqir, Buhuth fi ‘Ilm al-Usul, Sayyid Mahmoud Hashemi Shahroudi, Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1417 AH.
* Tabarsi, Fadl ibn Hasan, Majma‘ al-Bayan, Beirut, Dar al-Ma‘rifa, 1408 AH.
* Turayhi, Fakhr al-Din ibn Mohammad, Majma‘ al-Bahrayn, Tehran, Mortazavi, 1375 SH.
* Tayyebi, Nahid, Nemat Allah Safari, and Mahdi Mehrizi, “The Relationship between the Narration ‘Women Are Incapable of Speech and Awra’ and the Obligation of Religious Hijab up to the Fifth Century,” Journal of Comparative Hadith Sciences, vol. 14, no. 8, Spring and Summer 1400 SH.
* Allama al-Hilli, Hasan ibn Yusuf, Muntaha al-Matlab fi Tahqiq al-Madhhab, Mashhad, Islamic Research Center, 1412 AH.
* Allama al-Hilli, Hasan ibn Yusuf, Ajwibat al-Masa’il al-Muhanna’iyya, Qom: Khayyam Press, 1401 AH.
* Farahidi, Khalil ibn Ahmad, Kitab al-‘Ayn, Qom: Hijrat Publications, 1410 AH.
* Kadivar, Mohsen, [https://kadivar.com/10843/ “A Reflection on the Question of Hijab, Mohsen Kadivar’s Website].
* Kadivar, Mohsen, [https://kadivar.com/9449/ A Reflection on the Question of Hijab 2, Mohsen Kadivar’s Website].
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* Kulayni, Mohammad ibn Yaqub, al-Kafi, Ali Akbar Ghaffari, Tehran, Dar al-Kutub al-Islamiyya, 1407 AH.
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* Majlisi, Mohammad Taqi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, Qom, Kushanpur Islamic Culture Foundation, 1406 AH.
* Mostafavi, Hasan, al-Tahqiq fi Kalimat al-Quran al-Karim, Tehran, Ministry of Culture and Islamic Guidance, 1368 SH.
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* Nirumand, Nafiseh; Mohsen Ref‘at; and Fatemeh Zhian, “A Critical Analysis of the Expression ‘A Woman’s Voice Is Awra’ as a Hadith and Jurisprudential Rule,” Jurisprudential Research, vol. 19, no. 4, Winter 1402 SH.
[[fa:عورت‌انگاری زنان]]

Non-authority of the rule of justice

2026-09-18T18:18:25Z

Enadmin:

{{Author
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* '''Abstract'''
The '''Non-authority of the rule of justice''' in jurisprudence is the theory held by the majority of jurists, because identifying the subjects of the [[Rule of Justice]] is accomplished through reason, whereas they consider reason incapable of identifying instances of justice. The most important argument advanced in this regard is “the impossibility of reason’s comprehensive knowledge of the underlying grounds of the rulings of the Sharia”; because the human intellect, owing to its lack of knowledge of conflicting interests, possible impediments, and otherworldly dimensions, is incapable of fully comprehending the benefits and harms underlying the rulings. Consequently, reason’s identification of instances of justice is not definitive and is merely “conjectural.”

According to the principles of jurisprudence, on the one hand, “the intrinsic authority of certainty” requires a rational proof to be authoritative only if it produces certainty; on the other hand, the “general proofs prohibiting action based on conjecture” encompass such conjectural judgments and deprive them of authority. Narrations such as “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول), as well as the proofs rejecting analogy and personal opinion, also reinforce this view.

Some contemporary scholars, in criticizing the proofs for the [[authority of the rule of justice]], maintain and demonstrate that Quranic verses expressed in the language of negating injustice have only a negative function, while verses expressed in the language of commanding justice concern the actions of legally responsible persons, not the Lawgiver’s legislation. Therefore, because of these epistemological and foundational obstacles, the rule of justice has been regarded as lacking the authority required for the independent derivation of religious rulings.

The rejection of the rule of justice has been regarded as one of the factors preventing the establishment of rulings such as copyright, the obligation to compensate for the depreciation of money, and the obligation to respect the rights of future generations. It sometimes also results in the confirmation of fatwas such as the permissibility of sexual enjoyment from a minor girl, which are incompatible with customary and rational understandings of justice.

== Non-Authority of the Rule of Justice: The Predominant View among Jurists ==
A study of the jurisprudential works of early and later jurists demonstrates that acceptance of justice as a rule has not been prevalent. Contemporary authors have used the [[Rule of Justice]] in two specific and general senses. In its specific sense, the rule of justice is a jurisprudential rule alongside other jurisprudential rules, such as the no-harm and no-hardship rules. According to this meaning, if a religious ruling is regarded as unjust, the rule of justice excludes that ruling from the Sharia.<ref>Ali-Akbarian, ''The Rule of Justice in Imami Jurisprudence'', pp. 31-32.</ref> In its general sense, however, the rule of justice functions beyond a jurisprudential rule, and other jurisprudential rules are themselves derivatives of the rule of justice. In other words, the rule of justice occupies the position of a fundamental and universal principle within the system of divine rulings and is regarded as the spirit of the Sharia;<ref>Motahhari, ''Notes of Professor Motahhari'', vol. 1, p. 52; and vol. 3, p. 271.</ref> all religious rulings must conform to it.<ref>Shirvani, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” p. 101.</ref> According to this conception, justice is in fact understood as one of the objectives of the Sharia and the most important among them.<ref>Abdolrezaei Dastgerdi, Qaramaleki, and Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” pp. 100-102.</ref>

It appears that the common element on which the possibility of both meanings of the rule of justice depends is the identification of instances of justice through reason, whether individual or collective reason. If a jurist does not accept the authority of reason in identifying these instances and does not regard it as providing exculpation or establishing liability, that jurist will in no respect accept justice as a rule. The authority of reason in this matter is also denied in the works of most jurists, and the non-authority of the rule of justice originates in their rejection of reason’s ability to identify instances of justice. Therefore, the arguments for the non-authority of the rule of justice ultimately return to the arguments for the non-authority of reason in identifying instances of justice.

=== Effects of the Non-Authority of the Rule of Justice ===
If the authority of the rule of justice is not accepted, the principal basis of certain contemporary jurisprudential opinions is challenged. For example, although the general proofs permitting sexual enjoyment from one’s wife apparently include the permissibility of sexual enjoyment from a minor wife,<ref>Khoei, ''Mawsu‘at al-Imam al-Khoei'', vol. 32, p. 126.</ref> and only intercourse is excluded from the scope of these general proofs,<ref>Ashari Qomi, ''al-Nawadir'', p. 135.</ref> some scholars have invoked the rule of justice to restrict these general proofs and have deemed every form of sexual enjoyment from a minor girl impermissible.<ref>Esmaeili Fallah, Gharavi Naeini, and Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” pp. 16-17.</ref> The obligation to compensate for the depreciation of money when repaying a loan,<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref> the establishment of copyright and intellectual property,<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> and the obligation to respect the rights of future generations<ref>Hosseini and Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” p. 253.</ref> are among the other such opinions.

== Intrinsic Authority of Certainty ==
At a fundamental level, the most important foundation of the non-authority of the rule of justice may be regarded as dependent on the intrinsic authority of certainty. According to the view of many jurists, it is “certainty” that possesses intrinsic authority, and the validity of every other proof must ultimately be traced back to it. On this basis, a rational judgment is valid only when it is certain and free from every form of conjecture and doubt. According to this view, the authority of reason is itself extrinsic and depends on attaining certainty.<ref>Montazeri, ''Majma‘ al-Fawa’id'', p. 213.</ref>

Using the same argument, Shaykh Ansari states in a counterargument to the Akhbaris that if certainty obtained from rational proof is not authoritative, then certainty obtained from transmitted proof should likewise not be authoritative, because the criterion of authority in both cases is merely the “attainment of certainty.”<ref>Ansari, ''Fara’id al-Usul'', vol. 1, p. 15.</ref> Mohammad Reza Muzaffar likewise maintains that a rational proof is authoritative only if it leads to certainty, because certainty is an authoritative proof on which the authority of every other proof, including reason, depends.<ref>Muzaffar, ''Usul al-Fiqh'', vol. 2, pp. 125-127.</ref> The conclusion is that, because reason cannot comprehensively apprehend the underlying grounds of religious rulings, its judgment in such cases is not definitive. Consequently, reason’s judgment under the rule of justice is not authoritative.

=== General Proofs Prohibiting Conjecture ===
Because reason does not comprehensively apprehend the underlying grounds when identifying instances of justice and injustice, its judgments are conjectural and fall under the general proofs prohibiting action based on conjecture, such as [[Verse 18 of Sura Yunus]] and [[Verse 116 of Sura al-An‘am|Verse 116 of Sura al-An‘am]], as well as numerous narrations.<ref>Barqi, ''al-Mahasin'', vol. 1, p. 205; Majlisi, ''Bihar al-Anwar'', vol. 1, p. 208.</ref> Some Usuli scholars explicitly maintain that, because no specific proof establishes the authority of conjectural reason, these general proofs suffice to establish its non-authority.<ref>Sadr, ''Jawahir al-Usul'', p. 177.</ref> On this basis, the authority of the rule of justice is likewise negated, because instances of justice under this rule are identified through conjectural reason. According to these Usuli scholars, reason’s definitive judgment is confined to the universal titles of “justice” and “injustice,”<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> while rational apprehensions concerning particular instances of these titles remain merely at the level of a causal requirement rather than a complete cause.<ref>Kharrazi, ''‘Umdat al-Usul'', vol. 4, p. 388; Khoei, ''al-Hidaya fi al-Usul'', vol. 3, pp. 69-70.</ref> Therefore, judgments concerning instances of these two titles are conjectural and invalid because reason lacks comprehensive knowledge of the underlying grounds.

=== Narrations Negating the Authority of Conjectural Reason ===
From the perspective of Usuli scholars, abundant narrative evidence establishes the non-authority of conjectural reason concerning instances of justice. By negating the authority of reason’s determinations, this evidence also undermines the validity of the rule of justice. The best-known expression in these narrations is “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول).<ref>Bahrani, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', vol. 1, p. 324.</ref> In analyzing this narration, it has been stated that rational understanding does not attain the divine religion because reason does not comprehend the benefits and harms beyond actions; if reason becomes accustomed to this method, it will lose confidence in the Sharia’s textually prescribed commands.<ref>Madani Tabrizi, ''Qawa‘id al-Usul'', pp. 109-110.</ref>

The narrations rejecting analogy and personal opinion are also among the proofs cited by opponents of the authority of the rule of justice. The narrative heritage contains dozens of narrations criticizing personal opinion and analogy.<ref>For examples, see: Hurr al-Amili, ''Wasa’il al-Shi‘a'', vol. 27, pp. 35-62; Majlisi, ''Bihar al-Anwar'', vol. 2, pp. 283-316.</ref> In the narrations, analogy and personal opinion are treated as methods for resolving religious questions, severely condemned, and characterized as satanic practices. Some scholars have also generalized these narrations beyond their particular subjects and extended them to the general category of conjectural rational proofs.<ref>Makarem Shirazi, ''Anwar al-Usul'', vol. 2, p. 473.</ref>

== Impossibility of Comprehensively Apprehending the Underlying Grounds of the Rulings of the Sharia ==
The impossibility of comprehensively apprehending the underlying grounds of the rulings of the Sharia appears to be the most important argument for the non-authority of the rule of justice, such that several other arguments also depend on it and construct one of their premises by relying on this argument.

Accepting the rule of justice requires discovering the underlying grounds of rulings so that instances of justice and injustice may be identified. Jurists, however, maintain that the human intellect does not comprehensively apprehend the underlying grounds of rulings,<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> because only God knows all the characteristics of an act,<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 180.</ref> and reason, because of the possibility of error, cannot identify all of them.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, pp. 149-150; Tabatabaei Qomi, ''Ara’una fi Usul al-Fiqh'', vol. 2, pp. 38-39.</ref> The consequence of this lack of comprehensive knowledge is that only the Lawgiver can determine instances of justice and injustice.<ref>Musavi Khalkhali, ''al-Hakimiyya fi al-Islam'', p. 18.</ref>

Some explicitly state: “The identification of instances of titles such as justice and injustice follows religious legislation, not customary determination. The subject of rational goodness and evil is the actual instance specified by the Lawgiver; for this reason, retaliation against a believer for killing an unbeliever is not justice, and assisting an [[apostasy|apostate]] is not benevolence.”<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 187.</ref>

=== Interest in the Legislation Itself ===
One possibility that prevents reason from definitively discovering an underlying ground is that the interest of a ruling may lie in the legislation and obligation itself rather than in its object.<ref>Khomeini, ''Tahrirat fi al-Usul'', vol. 3, pp. 313-314.</ref> In other words, the Lawgiver sometimes institutes obligations to test the servants’ obedience, while the acts themselves do not necessarily entail any benefit or harm; rather, the very act of commanding them entails an interest. Examples include certain details of devotional acts, such as the number of prayer units, whose interest appears to lie in obligating legally responsible persons to follow these commands in order to test the extent of their servitude. Because reason is unaware of the interests inherent in the very imposition of obligations, it may err in this regard, and the precise identification of instances of justice and injustice in such cases is likewise impossible.

=== Reason’s Failure to Consider Conflicting Factors and Impediments ===
Opponents of the authority of the rule of justice explain that rational apprehensions always face “the possibility of failing to consider conflicting factors or impediments.”<ref>Khoei, ''Dirasat fi ‘Ilm al-Usul'', vol. 3, p. 77; Subhani Tabrizi, ''al-Mahsul fi ‘Ilm al-Usul'', vol. 3, p. 85.</ref> This is because there may always be a benefit or harm stronger than that discovered by reason that conflicts with it and of which reason is unaware. For example, reason may perceive the harm of retaliation in the offender’s family being deprived of him, while overlooking the more general interest of deterrence. Alternatively, it may perceive an obligatory interest in brushing one’s teeth but remain unaware of the impediment of “facilitating matters for the servants,” which prevents it from becoming obligatory.<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 177.</ref> On this basis, many matters initially regarded as justice or injustice are not so in reality, and identifying the subject of the rule of justice consequently becomes impossible.

=== Lack of Comprehensive Knowledge of Particulars ===
Another argument advanced by opponents of the authority of the rule of justice is that reason is incapable of comprehending the goodness and evil of particular matters, because such comprehension depends on innumerable benefits and harms that reason cannot comprehensively apprehend; consequently, certainty regarding the religious ruling cannot be attained.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, p. 149.</ref> In fact, in the process of discovery, reason cannot confine itself to what it apprehends and regard it as the entire underlying ground, because it can always conceive of infinitely many other benefits and harms of which it is unaware.

Some maintain that reason has access neither to the causes of rulings nor to the wisdoms underlying divine commands, particularly in complex social rulings;<ref>Sanad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', p. 277.</ref> it is evident that, under such circumstances, reason cannot identify actual justice and injustice.

=== Unawareness of Otherworldly Benefits and Harms ===
Reason’s inability to access “otherworldly benefits and harms” and the confinement of rational apprehension to the characteristics of worldly life constitute another argument invoked to undermine the authority of the rule of justice.<ref>Shahid al-Awwal, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', p. 7.</ref> On this basis, the mysteries and causes of jurisprudential rulings can be accepted only through transmitted evidence, because it is unknown whether the domain of their benefits is this world or the hereafter and whether they pertain to the individual or the human species; therefore, reason cannot issue a definitive judgment concerning these matters.<ref>Tabrizi, ''Khulasat al-Usul'', pp. 68-70.</ref> For example, although men’s unilateral [[right to divorce]] may entail harms in this world, [[women’s marital obedience]] in relation to this religious ruling may entail innumerable otherworldly benefits that cannot be compared with those harms.

== Disputing the Textual Proofs Establishing the Rule of Justice ==
The contemporary researcher [[Sayf Allah Sorami|Sayf Allah Sorami]] maintains that the rule of justice has only a negative function and can negate unjust rulings;<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 29-51.</ref> it cannot affirmatively and independently establish a religious ruling in cases not addressed by texts. He critically examines in detail the Quranic proofs invoked to establish the rule of justice.<ref>Sorami, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” pp. 70-77.</ref> To substantiate this claim, he divides the proofs invoked for the authority of the rule of justice into two categories and criticizes each of them.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 52-55.</ref>

=== Proofs Expressed in the Language of Negating Injustice ===
The first category of proofs for the rule of justice consists of those that negate injustice from God through negative language, such as the verse “Your Lord is not unjust to His servants” (وَ ما رَبُّکَ بِظَلّامٍ لِلعَبید) ([[Verse 46 of Sura Fussilat|Quran 41:46]]). Sorami maintains that these proofs cannot establish the authority of the rule of justice, because an “affirmation” cannot be inferred from “negative language.” These rules concern only existing rulings and exclude from the Sharia those rulings that constitute harm, hardship, or, in the present case, injustice. These proofs cannot, however, independently establish a ruling in order to eliminate harm or injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref>

Sorami also explicitly states that theological foundations such as the “perfection of the Sharia” or “the absence of any event without a ruling,” although rationally and ontologically correct, cannot alter the indication of a verbal proof at the level of demonstration and customary understanding. Customary understanding does not infer from the statement “God is not unjust” that God has therefore legislated a specific ruling to eliminate every instance of injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref> Attempting to establish a ruling through these proofs is a form of “[[juristic preference|invalid juristic preference]].” For example, the no-harm rule cannot be used to establish “liability” for a defrauding seller who charges an excessive price in order to compensate the defrauded party’s loss. Similarly, the fact that an act is not unjust is, at most, a “component of the cause” for legislating a ruling rather than its “complete cause.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

=== Proofs Expressed in the Language of Affirming Justice ===
The second category of proofs establishing the rule of justice consists of those that command justice, such as the verse “[[Verse 90 of Sura al-Nahl|Indeed, God commands justice and benevolence]].” Sorami maintains that the addressees of these proofs are individuals and that their subject matter is the “act of the legally responsible person.” Their primary and definitive apparent meaning is that God requires His servants to act justly.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 54.</ref> The command to justice does not concern the “act of the Lawgiver,” namely the legislation of rulings. The other commands and prohibitions in Verse 90 of Sura al-Nahl—such as benevolence, giving, and the prohibition of indecency—all concern the actions of legally responsible persons. The concluding phrase of the verse, “He admonishes you so that you may take heed,” likewise confirms that the verse is intended to admonish its addressees.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

In responding to an objection, Sorami explains that although it may be inferred by “definitive a fortiori reasoning” from the command addressed to legally responsible persons that God is also just in legislation, this has no bearing on the affirmative dimension of the rule of justice. This is because the proposition that “every religious ruling is just” does not mean that “everything just is a religious ruling.” The only benefit of this proposition is the same negative function of the proofs, understood through the “contrapositive”: “Whatever is not just—that is, whatever is unjust—is not a religious ruling.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref> Second, understanding a proposition through rational a fortiori reasoning differs from understanding it from the expression itself. The authority of “customary understanding” in comprehending meanings pertains to the indications of the expression itself, not to rational implications external to it. Therefore, one cannot rely on a fortiori reasoning to extend the authority of customary understanding in identifying instances of justice to every context and derive a religious ruling from it.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref>

== Footnotes ==
{{Footnotes}}

== Sources ==
{{References}}
* The Holy Quran.
* Esmaeili Fallah, Marzieh, Nahleh Gharavi Naeini, and Tuba Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” ''Women’s Research Journal'', no. 46, 1402 SH.
* Ashari Qomi, Ahmad ibn Mohammad, ''al-Nawadir'', Qom, Imam al-Mahdi (a) School, 1408 AH.
* Ansari, Morteza, ''Fara’id al-Usul'', Qom, Society of Seminary Teachers, 1416 AH.
* Bahrani, Yusuf, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', Beirut, Dar al-Mustafa (s) li-Ihya’ al-Turath, 1423 AH.
* Barqi, Ahmad ibn Mohammad, ''al-Mahasin'', Qom, Dar al-Kutub al-Islamiyya, n.d.
* Tabrizi, Gholam-Hossein, ''Khulasat al-Usul'', Mashhad, Tus, 1372 SH.
* Hurr al-Amili, Mohammad ibn Hasan, ''Tafsil Wasa’il al-Shi‘a ila Tahsil Masa’il al-Shari‘a'', Qom, Al al-Bayt (a) Institute, 1409 AH.
* Hosseini Shirazi, Sadiq, ''Bayan al-Usul'', Qom, Dar al-Ansar, 1427 AH.
* Hosseini, Sayyid Ali, and Sayyid Amr Allah Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” ''Journal of Social Jurisprudence Research'', no. 18, 1400 SH.
* Hakim, Sayyid Mohammad Taqi, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', Qom, Ahl al-Bayt (a) World Assembly, 1418 AH.
* Kharrazi, Sayyid Mohsen, ''‘Umdat al-Usul'', Qom, Dar Rah-i Haqq Institute, 1418 AH.
* Khomeini, Sayyid Mustafa, ''Tahrirat fi al-Usul'', Qom, Institute for Compilation and Publication of Imam Khomeini’s Works, 1376 SH.
* Khoei, Sayyid Abu al-Qasim, ''al-Hidaya fi al-Usul'', Qom, Sahib al-Amr (aj) Cultural Institute, 1417 AH.
* Khoei, Sayyid Abu al-Qasim, ''Dirasat fi ‘Ilm al-Usul'', Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1419 AH.
* Khoei, Sayyid Abu al-Qasim, ''Mawsu‘at al-Imam al-Khoei'', Qom, al-Tawhid Publishing, 1418 AH.
* Subhani Tabrizi, Jafar, ''al-Mahsul fi ‘Ilm al-Usul'', Qom, Imam al-Sadiq (a) Institute, 1414 AH.
* Saeedi, Sayyid Mohsen, “The Theory of Compensating for the Depreciation of Money,” ''Ahl al-Bayt (a) Jurisprudence Journal'', no. 45, 1385 SH.
* Soltani Renani, Mohammad, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” ''Contemporary Comparative Legal Studies'', no. 21, 1399 SH.
* Sanad, Mohammad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', Qom, Madin, 1426 AH.
* Shahid al-Awwal, Mohammad ibn Makki, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', Qom, Grand Ayatollah Marashi Najafi Public Library, 1403 AH.
* Shirvani, Ali, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” ''Revelatory Ethics'', no. 19, 1399 SH.
* Sadr, Sayyid Mohammad Baqir, ''Jawahir al-Usul'', Beirut, Dar al-Ta‘aruf li-l-Matbu‘at, 1415 AH.
* Sorami, Sayf Allah, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” ''Fiqh'', no. 87, 1395 SH.
* Sorami, Sayf Allah, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” ''Quran, Jurisprudence, and Islamic Law'', no. 9, 1397 SH.
* Sorami, Sayf Allah, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” ''Quran, Jurisprudence, and Islamic Law'', no. 12, 1399 SH.
* Tabatabaei Hakim, Mohammad Saeed, ''al-Muhkam fi Usul al-Fiqh'', Qom, al-Manar Institute, 1414 AH.
* Tabatabaei Qomi, Taqi, ''Ara’una fi Usul al-Fiqh'', Qom, Mahallati, 1371 SH.
* Abdolrezaei Dastgerdi, Mohammad, Ali-Mazhar Qaramaleki, and Sayyid Hossein Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” ''Research in Islamic Jurisprudence and Law'', no. 77, 1403 AH.
* Ali-Akbarian, Hasan Ali, ''The Rule of Justice in Imami Jurisprudence'', Qom, Islamic Sciences and Culture Academy, 1387 SH.
* Majlisi, Mohammad Baqir, ''Bihar al-Anwar'', Beirut, Dar Ihya’ al-Turath al-Arabi, 1403 AH.
* Madani Tabrizi, Yusuf, ''Qawa‘id al-Usul'', Qom, Office of Ayatollah Madani Tabrizi, 1429 AH.
* Motahhari, Morteza, ''Notes of Professor Motahhari'', Tehran, Sadra, 1390 SH.
* Muzaffar, Mohammad Reza, ''Usul al-Fiqh'', Qom, Isma‘iliyan, 1375 SH.
* Makarem Shirazi, Naser, ''Anwar al-Usul'', Qom, Imam Ali ibn Abi Talib (a) School, 1428 AH.
* Montazeri, Hossein Ali, ''Majma‘ al-Fawa’id'', Qom, Sayeh Publications, 1384 SH.
* Musavi Khalkhali, Mohammad Mahdi, ''al-Hakimiyya fi al-Islam'', Qom, Islamic Thought Academy, 1383 SH.
{{End}}
[[fa:عدم حجیت قاعده عدالت]]

Non-authority of the rule of justice

2026-09-18T18:17:36Z

Enadmin:

{{Author
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* '''Abstract'''
The '''Non-authority of the rule of justice''' in jurisprudence is the theory held by the majority of jurists, because identifying the subjects of the [[Rule of Justice]] is accomplished through reason, whereas they consider reason incapable of identifying instances of justice. The most important argument advanced in this regard is “the impossibility of reason’s comprehensive knowledge of the underlying grounds of the rulings of the Sharia”; because the human intellect, owing to its lack of knowledge of conflicting interests, possible impediments, and otherworldly dimensions, is incapable of fully comprehending the benefits and harms underlying the rulings. Consequently, reason’s identification of instances of justice is not definitive and is merely “conjectural.”

According to the principles of jurisprudence, on the one hand, “the intrinsic authority of certainty” requires a rational proof to be authoritative only if it produces certainty; on the other hand, the “general proofs prohibiting action based on conjecture” encompass such conjectural judgments and deprive them of authority. Narrations such as “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول), as well as the proofs rejecting analogy and personal opinion, also reinforce this view.

Some contemporary scholars, in criticizing the proofs for the [[authority of the rule of justice]], maintain and demonstrate that Quranic verses expressed in the language of negating injustice have only a negative function, while verses expressed in the language of commanding justice concern the actions of legally responsible persons, not the Lawgiver’s legislation. Therefore, because of these epistemological and foundational obstacles, the rule of justice has been regarded as lacking the authority required for the independent derivation of religious rulings.

The rejection of the rule of justice has been regarded as one of the factors preventing the establishment of rulings such as copyright, the obligation to compensate for the depreciation of money, and the obligation to respect the rights of future generations. It sometimes also results in the confirmation of fatwas such as the permissibility of sexual enjoyment from a minor girl, which are incompatible with customary and rational understandings of justice.

== Non-Authority of the Rule of Justice: The Predominant View among Jurists ==
A study of the jurisprudential works of early and later jurists demonstrates that acceptance of justice as a rule has not been prevalent. Contemporary authors have used the [[rule of justice]] in two specific and general senses. In its specific sense, the rule of justice is a jurisprudential rule alongside other jurisprudential rules, such as the no-harm and no-hardship rules. According to this meaning, if a religious ruling is regarded as unjust, the rule of justice excludes that ruling from the Sharia.<ref>Ali-Akbarian, ''The Rule of Justice in Imami Jurisprudence'', pp. 31-32.</ref> In its general sense, however, the rule of justice functions beyond a jurisprudential rule, and other jurisprudential rules are themselves derivatives of the rule of justice. In other words, the rule of justice occupies the position of a fundamental and universal principle within the system of divine rulings and is regarded as the spirit of the Sharia;<ref>Motahhari, ''Notes of Professor Motahhari'', vol. 1, p. 52; and vol. 3, p. 271.</ref> all religious rulings must conform to it.<ref>Shirvani, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” p. 101.</ref> According to this conception, justice is in fact understood as one of the objectives of the Sharia and the most important among them.<ref>Abdolrezaei Dastgerdi, Qaramaleki, and Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” pp. 100-102.</ref>

It appears that the common element on which the possibility of both meanings of the rule of justice depends is the identification of instances of justice through reason, whether individual or collective reason. If a jurist does not accept the authority of reason in identifying these instances and does not regard it as providing exculpation or establishing liability, that jurist will in no respect accept justice as a rule. The authority of reason in this matter is also denied in the works of most jurists, and the non-authority of the rule of justice originates in their rejection of reason’s ability to identify instances of justice. Therefore, the arguments for the non-authority of the rule of justice ultimately return to the arguments for the non-authority of reason in identifying instances of justice.

=== Effects of the Non-Authority of the Rule of Justice ===
If the authority of the rule of justice is not accepted, the principal basis of certain contemporary jurisprudential opinions is challenged. For example, although the general proofs permitting sexual enjoyment from one’s wife apparently include the permissibility of sexual enjoyment from a minor wife,<ref>Khoei, ''Mawsu‘at al-Imam al-Khoei'', vol. 32, p. 126.</ref> and only intercourse is excluded from the scope of these general proofs,<ref>Ashari Qomi, ''al-Nawadir'', p. 135.</ref> some scholars have invoked the rule of justice to restrict these general proofs and have deemed every form of sexual enjoyment from a minor girl impermissible.<ref>Esmaeili Fallah, Gharavi Naeini, and Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” pp. 16-17.</ref> The obligation to compensate for the depreciation of money when repaying a loan,<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref> the establishment of copyright and intellectual property,<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> and the obligation to respect the rights of future generations<ref>Hosseini and Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” p. 253.</ref> are among the other such opinions.

== Intrinsic Authority of Certainty ==
At a fundamental level, the most important foundation of the non-authority of the rule of justice may be regarded as dependent on the intrinsic authority of certainty. According to the view of many jurists, it is “certainty” that possesses intrinsic authority, and the validity of every other proof must ultimately be traced back to it. On this basis, a rational judgment is valid only when it is certain and free from every form of conjecture and doubt. According to this view, the authority of reason is itself extrinsic and depends on attaining certainty.<ref>Montazeri, ''Majma‘ al-Fawa’id'', p. 213.</ref>

Using the same argument, Shaykh Ansari states in a counterargument to the Akhbaris that if certainty obtained from rational proof is not authoritative, then certainty obtained from transmitted proof should likewise not be authoritative, because the criterion of authority in both cases is merely the “attainment of certainty.”<ref>Ansari, ''Fara’id al-Usul'', vol. 1, p. 15.</ref> Mohammad Reza Muzaffar likewise maintains that a rational proof is authoritative only if it leads to certainty, because certainty is an authoritative proof on which the authority of every other proof, including reason, depends.<ref>Muzaffar, ''Usul al-Fiqh'', vol. 2, pp. 125-127.</ref> The conclusion is that, because reason cannot comprehensively apprehend the underlying grounds of religious rulings, its judgment in such cases is not definitive. Consequently, reason’s judgment under the rule of justice is not authoritative.

=== General Proofs Prohibiting Conjecture ===
Because reason does not comprehensively apprehend the underlying grounds when identifying instances of justice and injustice, its judgments are conjectural and fall under the general proofs prohibiting action based on conjecture, such as [[Verse 18 of Sura Yunus]] and [[Verse 116 of Sura al-An‘am|Verse 116 of Sura al-An‘am]], as well as numerous narrations.<ref>Barqi, ''al-Mahasin'', vol. 1, p. 205; Majlisi, ''Bihar al-Anwar'', vol. 1, p. 208.</ref> Some Usuli scholars explicitly maintain that, because no specific proof establishes the authority of conjectural reason, these general proofs suffice to establish its non-authority.<ref>Sadr, ''Jawahir al-Usul'', p. 177.</ref> On this basis, the authority of the rule of justice is likewise negated, because instances of justice under this rule are identified through conjectural reason. According to these Usuli scholars, reason’s definitive judgment is confined to the universal titles of “justice” and “injustice,”<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> while rational apprehensions concerning particular instances of these titles remain merely at the level of a causal requirement rather than a complete cause.<ref>Kharrazi, ''‘Umdat al-Usul'', vol. 4, p. 388; Khoei, ''al-Hidaya fi al-Usul'', vol. 3, pp. 69-70.</ref> Therefore, judgments concerning instances of these two titles are conjectural and invalid because reason lacks comprehensive knowledge of the underlying grounds.

=== Narrations Negating the Authority of Conjectural Reason ===
From the perspective of Usuli scholars, abundant narrative evidence establishes the non-authority of conjectural reason concerning instances of justice. By negating the authority of reason’s determinations, this evidence also undermines the validity of the rule of justice. The best-known expression in these narrations is “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول).<ref>Bahrani, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', vol. 1, p. 324.</ref> In analyzing this narration, it has been stated that rational understanding does not attain the divine religion because reason does not comprehend the benefits and harms beyond actions; if reason becomes accustomed to this method, it will lose confidence in the Sharia’s textually prescribed commands.<ref>Madani Tabrizi, ''Qawa‘id al-Usul'', pp. 109-110.</ref>

The narrations rejecting analogy and personal opinion are also among the proofs cited by opponents of the authority of the rule of justice. The narrative heritage contains dozens of narrations criticizing personal opinion and analogy.<ref>For examples, see: Hurr al-Amili, ''Wasa’il al-Shi‘a'', vol. 27, pp. 35-62; Majlisi, ''Bihar al-Anwar'', vol. 2, pp. 283-316.</ref> In the narrations, analogy and personal opinion are treated as methods for resolving religious questions, severely condemned, and characterized as satanic practices. Some scholars have also generalized these narrations beyond their particular subjects and extended them to the general category of conjectural rational proofs.<ref>Makarem Shirazi, ''Anwar al-Usul'', vol. 2, p. 473.</ref>

== Impossibility of Comprehensively Apprehending the Underlying Grounds of the Rulings of the Sharia ==
The impossibility of comprehensively apprehending the underlying grounds of the rulings of the Sharia appears to be the most important argument for the non-authority of the rule of justice, such that several other arguments also depend on it and construct one of their premises by relying on this argument.

Accepting the rule of justice requires discovering the underlying grounds of rulings so that instances of justice and injustice may be identified. Jurists, however, maintain that the human intellect does not comprehensively apprehend the underlying grounds of rulings,<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> because only God knows all the characteristics of an act,<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 180.</ref> and reason, because of the possibility of error, cannot identify all of them.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, pp. 149-150; Tabatabaei Qomi, ''Ara’una fi Usul al-Fiqh'', vol. 2, pp. 38-39.</ref> The consequence of this lack of comprehensive knowledge is that only the Lawgiver can determine instances of justice and injustice.<ref>Musavi Khalkhali, ''al-Hakimiyya fi al-Islam'', p. 18.</ref>

Some explicitly state: “The identification of instances of titles such as justice and injustice follows religious legislation, not customary determination. The subject of rational goodness and evil is the actual instance specified by the Lawgiver; for this reason, retaliation against a believer for killing an unbeliever is not justice, and assisting an [[apostasy|apostate]] is not benevolence.”<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 187.</ref>

=== Interest in the Legislation Itself ===
One possibility that prevents reason from definitively discovering an underlying ground is that the interest of a ruling may lie in the legislation and obligation itself rather than in its object.<ref>Khomeini, ''Tahrirat fi al-Usul'', vol. 3, pp. 313-314.</ref> In other words, the Lawgiver sometimes institutes obligations to test the servants’ obedience, while the acts themselves do not necessarily entail any benefit or harm; rather, the very act of commanding them entails an interest. Examples include certain details of devotional acts, such as the number of prayer units, whose interest appears to lie in obligating legally responsible persons to follow these commands in order to test the extent of their servitude. Because reason is unaware of the interests inherent in the very imposition of obligations, it may err in this regard, and the precise identification of instances of justice and injustice in such cases is likewise impossible.

=== Reason’s Failure to Consider Conflicting Factors and Impediments ===
Opponents of the authority of the rule of justice explain that rational apprehensions always face “the possibility of failing to consider conflicting factors or impediments.”<ref>Khoei, ''Dirasat fi ‘Ilm al-Usul'', vol. 3, p. 77; Subhani Tabrizi, ''al-Mahsul fi ‘Ilm al-Usul'', vol. 3, p. 85.</ref> This is because there may always be a benefit or harm stronger than that discovered by reason that conflicts with it and of which reason is unaware. For example, reason may perceive the harm of retaliation in the offender’s family being deprived of him, while overlooking the more general interest of deterrence. Alternatively, it may perceive an obligatory interest in brushing one’s teeth but remain unaware of the impediment of “facilitating matters for the servants,” which prevents it from becoming obligatory.<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 177.</ref> On this basis, many matters initially regarded as justice or injustice are not so in reality, and identifying the subject of the rule of justice consequently becomes impossible.

=== Lack of Comprehensive Knowledge of Particulars ===
Another argument advanced by opponents of the authority of the rule of justice is that reason is incapable of comprehending the goodness and evil of particular matters, because such comprehension depends on innumerable benefits and harms that reason cannot comprehensively apprehend; consequently, certainty regarding the religious ruling cannot be attained.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, p. 149.</ref> In fact, in the process of discovery, reason cannot confine itself to what it apprehends and regard it as the entire underlying ground, because it can always conceive of infinitely many other benefits and harms of which it is unaware.

Some maintain that reason has access neither to the causes of rulings nor to the wisdoms underlying divine commands, particularly in complex social rulings;<ref>Sanad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', p. 277.</ref> it is evident that, under such circumstances, reason cannot identify actual justice and injustice.

=== Unawareness of Otherworldly Benefits and Harms ===
Reason’s inability to access “otherworldly benefits and harms” and the confinement of rational apprehension to the characteristics of worldly life constitute another argument invoked to undermine the authority of the rule of justice.<ref>Shahid al-Awwal, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', p. 7.</ref> On this basis, the mysteries and causes of jurisprudential rulings can be accepted only through transmitted evidence, because it is unknown whether the domain of their benefits is this world or the hereafter and whether they pertain to the individual or the human species; therefore, reason cannot issue a definitive judgment concerning these matters.<ref>Tabrizi, ''Khulasat al-Usul'', pp. 68-70.</ref> For example, although men’s unilateral [[right to divorce]] may entail harms in this world, [[women’s marital obedience]] in relation to this religious ruling may entail innumerable otherworldly benefits that cannot be compared with those harms.

== Disputing the Textual Proofs Establishing the Rule of Justice ==
The contemporary researcher [[Sayf Allah Sorami|Sayf Allah Sorami]] maintains that the rule of justice has only a negative function and can negate unjust rulings;<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 29-51.</ref> it cannot affirmatively and independently establish a religious ruling in cases not addressed by texts. He critically examines in detail the Quranic proofs invoked to establish the rule of justice.<ref>Sorami, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” pp. 70-77.</ref> To substantiate this claim, he divides the proofs invoked for the authority of the rule of justice into two categories and criticizes each of them.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 52-55.</ref>

=== Proofs Expressed in the Language of Negating Injustice ===
The first category of proofs for the rule of justice consists of those that negate injustice from God through negative language, such as the verse “Your Lord is not unjust to His servants” (وَ ما رَبُّکَ بِظَلّامٍ لِلعَبید) ([[Verse 46 of Sura Fussilat|Quran 41:46]]). Sorami maintains that these proofs cannot establish the authority of the rule of justice, because an “affirmation” cannot be inferred from “negative language.” These rules concern only existing rulings and exclude from the Sharia those rulings that constitute harm, hardship, or, in the present case, injustice. These proofs cannot, however, independently establish a ruling in order to eliminate harm or injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref>

Sorami also explicitly states that theological foundations such as the “perfection of the Sharia” or “the absence of any event without a ruling,” although rationally and ontologically correct, cannot alter the indication of a verbal proof at the level of demonstration and customary understanding. Customary understanding does not infer from the statement “God is not unjust” that God has therefore legislated a specific ruling to eliminate every instance of injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref> Attempting to establish a ruling through these proofs is a form of “[[juristic preference|invalid juristic preference]].” For example, the no-harm rule cannot be used to establish “liability” for a defrauding seller who charges an excessive price in order to compensate the defrauded party’s loss. Similarly, the fact that an act is not unjust is, at most, a “component of the cause” for legislating a ruling rather than its “complete cause.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

=== Proofs Expressed in the Language of Affirming Justice ===
The second category of proofs establishing the rule of justice consists of those that command justice, such as the verse “[[Verse 90 of Sura al-Nahl|Indeed, God commands justice and benevolence]].” Sorami maintains that the addressees of these proofs are individuals and that their subject matter is the “act of the legally responsible person.” Their primary and definitive apparent meaning is that God requires His servants to act justly.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 54.</ref> The command to justice does not concern the “act of the Lawgiver,” namely the legislation of rulings. The other commands and prohibitions in Verse 90 of Sura al-Nahl—such as benevolence, giving, and the prohibition of indecency—all concern the actions of legally responsible persons. The concluding phrase of the verse, “He admonishes you so that you may take heed,” likewise confirms that the verse is intended to admonish its addressees.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

In responding to an objection, Sorami explains that although it may be inferred by “definitive a fortiori reasoning” from the command addressed to legally responsible persons that God is also just in legislation, this has no bearing on the affirmative dimension of the rule of justice. This is because the proposition that “every religious ruling is just” does not mean that “everything just is a religious ruling.” The only benefit of this proposition is the same negative function of the proofs, understood through the “contrapositive”: “Whatever is not just—that is, whatever is unjust—is not a religious ruling.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref> Second, understanding a proposition through rational a fortiori reasoning differs from understanding it from the expression itself. The authority of “customary understanding” in comprehending meanings pertains to the indications of the expression itself, not to rational implications external to it. Therefore, one cannot rely on a fortiori reasoning to extend the authority of customary understanding in identifying instances of justice to every context and derive a religious ruling from it.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref>

== Footnotes ==
{{Footnotes}}

== Sources ==
{{References}}
* The Holy Quran.
* Esmaeili Fallah, Marzieh, Nahleh Gharavi Naeini, and Tuba Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” ''Women’s Research Journal'', no. 46, 1402 SH.
* Ashari Qomi, Ahmad ibn Mohammad, ''al-Nawadir'', Qom, Imam al-Mahdi (a) School, 1408 AH.
* Ansari, Morteza, ''Fara’id al-Usul'', Qom, Society of Seminary Teachers, 1416 AH.
* Bahrani, Yusuf, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', Beirut, Dar al-Mustafa (s) li-Ihya’ al-Turath, 1423 AH.
* Barqi, Ahmad ibn Mohammad, ''al-Mahasin'', Qom, Dar al-Kutub al-Islamiyya, n.d.
* Tabrizi, Gholam-Hossein, ''Khulasat al-Usul'', Mashhad, Tus, 1372 SH.
* Hurr al-Amili, Mohammad ibn Hasan, ''Tafsil Wasa’il al-Shi‘a ila Tahsil Masa’il al-Shari‘a'', Qom, Al al-Bayt (a) Institute, 1409 AH.
* Hosseini Shirazi, Sadiq, ''Bayan al-Usul'', Qom, Dar al-Ansar, 1427 AH.
* Hosseini, Sayyid Ali, and Sayyid Amr Allah Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” ''Journal of Social Jurisprudence Research'', no. 18, 1400 SH.
* Hakim, Sayyid Mohammad Taqi, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', Qom, Ahl al-Bayt (a) World Assembly, 1418 AH.
* Kharrazi, Sayyid Mohsen, ''‘Umdat al-Usul'', Qom, Dar Rah-i Haqq Institute, 1418 AH.
* Khomeini, Sayyid Mustafa, ''Tahrirat fi al-Usul'', Qom, Institute for Compilation and Publication of Imam Khomeini’s Works, 1376 SH.
* Khoei, Sayyid Abu al-Qasim, ''al-Hidaya fi al-Usul'', Qom, Sahib al-Amr (aj) Cultural Institute, 1417 AH.
* Khoei, Sayyid Abu al-Qasim, ''Dirasat fi ‘Ilm al-Usul'', Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1419 AH.
* Khoei, Sayyid Abu al-Qasim, ''Mawsu‘at al-Imam al-Khoei'', Qom, al-Tawhid Publishing, 1418 AH.
* Subhani Tabrizi, Jafar, ''al-Mahsul fi ‘Ilm al-Usul'', Qom, Imam al-Sadiq (a) Institute, 1414 AH.
* Saeedi, Sayyid Mohsen, “The Theory of Compensating for the Depreciation of Money,” ''Ahl al-Bayt (a) Jurisprudence Journal'', no. 45, 1385 SH.
* Soltani Renani, Mohammad, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” ''Contemporary Comparative Legal Studies'', no. 21, 1399 SH.
* Sanad, Mohammad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', Qom, Madin, 1426 AH.
* Shahid al-Awwal, Mohammad ibn Makki, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', Qom, Grand Ayatollah Marashi Najafi Public Library, 1403 AH.
* Shirvani, Ali, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” ''Revelatory Ethics'', no. 19, 1399 SH.
* Sadr, Sayyid Mohammad Baqir, ''Jawahir al-Usul'', Beirut, Dar al-Ta‘aruf li-l-Matbu‘at, 1415 AH.
* Sorami, Sayf Allah, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” ''Fiqh'', no. 87, 1395 SH.
* Sorami, Sayf Allah, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” ''Quran, Jurisprudence, and Islamic Law'', no. 9, 1397 SH.
* Sorami, Sayf Allah, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” ''Quran, Jurisprudence, and Islamic Law'', no. 12, 1399 SH.
* Tabatabaei Hakim, Mohammad Saeed, ''al-Muhkam fi Usul al-Fiqh'', Qom, al-Manar Institute, 1414 AH.
* Tabatabaei Qomi, Taqi, ''Ara’una fi Usul al-Fiqh'', Qom, Mahallati, 1371 SH.
* Abdolrezaei Dastgerdi, Mohammad, Ali-Mazhar Qaramaleki, and Sayyid Hossein Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” ''Research in Islamic Jurisprudence and Law'', no. 77, 1403 AH.
* Ali-Akbarian, Hasan Ali, ''The Rule of Justice in Imami Jurisprudence'', Qom, Islamic Sciences and Culture Academy, 1387 SH.
* Majlisi, Mohammad Baqir, ''Bihar al-Anwar'', Beirut, Dar Ihya’ al-Turath al-Arabi, 1403 AH.
* Madani Tabrizi, Yusuf, ''Qawa‘id al-Usul'', Qom, Office of Ayatollah Madani Tabrizi, 1429 AH.
* Motahhari, Morteza, ''Notes of Professor Motahhari'', Tehran, Sadra, 1390 SH.
* Muzaffar, Mohammad Reza, ''Usul al-Fiqh'', Qom, Isma‘iliyan, 1375 SH.
* Makarem Shirazi, Naser, ''Anwar al-Usul'', Qom, Imam Ali ibn Abi Talib (a) School, 1428 AH.
* Montazeri, Hossein Ali, ''Majma‘ al-Fawa’id'', Qom, Sayeh Publications, 1384 SH.
* Musavi Khalkhali, Mohammad Mahdi, ''al-Hakimiyya fi al-Islam'', Qom, Islamic Thought Academy, 1383 SH.
{{End}}
[[fa:عدم حجیت قاعده عدالت]]

Non-authority of the rule of justice

2026-09-18T18:15:52Z

Enadmin: Created page with "{{Author |author = Mahdi Shajarian |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' The non-authority of the rule of justice in jurisprudence is the theory held by the majority of jurists, because identifying the subjects of the rule of justice is accomplished through reason, whereas they consider reason incapable of identifying instances of justice. The most important argument advanced in this regard is “the impossibilit..."

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* '''Abstract'''
The non-authority of the rule of justice in jurisprudence is the theory held by the majority of jurists, because identifying the subjects of the [[rule of justice]] is accomplished through reason, whereas they consider reason incapable of identifying instances of justice. The most important argument advanced in this regard is “the impossibility of reason’s comprehensive knowledge of the underlying grounds of the rulings of the Sharia”; because the human intellect, owing to its lack of knowledge of conflicting interests, possible impediments, and otherworldly dimensions, is incapable of fully comprehending the benefits and harms underlying the rulings. Consequently, reason’s identification of instances of justice is not definitive and is merely “conjectural.”

According to the principles of jurisprudence, on the one hand, “the intrinsic authority of certainty” requires a rational proof to be authoritative only if it produces certainty; on the other hand, the “general proofs prohibiting action based on conjecture” encompass such conjectural judgments and deprive them of authority. Narrations such as “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول), as well as the proofs rejecting analogy and personal opinion, also reinforce this view.

Some contemporary scholars, in criticizing the proofs for the [[authority of the rule of justice]], maintain and demonstrate that Quranic verses expressed in the language of negating injustice have only a negative function, while verses expressed in the language of commanding justice concern the actions of legally responsible persons, not the Lawgiver’s legislation. Therefore, because of these epistemological and foundational obstacles, the rule of justice has been regarded as lacking the authority required for the independent derivation of religious rulings.

The rejection of the rule of justice has been regarded as one of the factors preventing the establishment of rulings such as copyright, the obligation to compensate for the depreciation of money, and the obligation to respect the rights of future generations. It sometimes also results in the confirmation of fatwas such as the permissibility of sexual enjoyment from a minor girl, which are incompatible with customary and rational understandings of justice.

== Non-Authority of the Rule of Justice: The Predominant View among Jurists ==
A study of the jurisprudential works of early and later jurists demonstrates that acceptance of justice as a rule has not been prevalent. Contemporary authors have used the [[rule of justice]] in two specific and general senses. In its specific sense, the rule of justice is a jurisprudential rule alongside other jurisprudential rules, such as the no-harm and no-hardship rules. According to this meaning, if a religious ruling is regarded as unjust, the rule of justice excludes that ruling from the Sharia.<ref>Ali-Akbarian, ''The Rule of Justice in Imami Jurisprudence'', pp. 31-32.</ref> In its general sense, however, the rule of justice functions beyond a jurisprudential rule, and other jurisprudential rules are themselves derivatives of the rule of justice. In other words, the rule of justice occupies the position of a fundamental and universal principle within the system of divine rulings and is regarded as the spirit of the Sharia;<ref>Motahhari, ''Notes of Professor Motahhari'', vol. 1, p. 52; and vol. 3, p. 271.</ref> all religious rulings must conform to it.<ref>Shirvani, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” p. 101.</ref> According to this conception, justice is in fact understood as one of the objectives of the Sharia and the most important among them.<ref>Abdolrezaei Dastgerdi, Qaramaleki, and Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” pp. 100-102.</ref>

It appears that the common element on which the possibility of both meanings of the rule of justice depends is the identification of instances of justice through reason, whether individual or collective reason. If a jurist does not accept the authority of reason in identifying these instances and does not regard it as providing exculpation or establishing liability, that jurist will in no respect accept justice as a rule. The authority of reason in this matter is also denied in the works of most jurists, and the non-authority of the rule of justice originates in their rejection of reason’s ability to identify instances of justice. Therefore, the arguments for the non-authority of the rule of justice ultimately return to the arguments for the non-authority of reason in identifying instances of justice.

=== Effects of the Non-Authority of the Rule of Justice ===
If the authority of the rule of justice is not accepted, the principal basis of certain contemporary jurisprudential opinions is challenged. For example, although the general proofs permitting sexual enjoyment from one’s wife apparently include the permissibility of sexual enjoyment from a minor wife,<ref>Khoei, ''Mawsu‘at al-Imam al-Khoei'', vol. 32, p. 126.</ref> and only intercourse is excluded from the scope of these general proofs,<ref>Ashari Qomi, ''al-Nawadir'', p. 135.</ref> some scholars have invoked the rule of justice to restrict these general proofs and have deemed every form of sexual enjoyment from a minor girl impermissible.<ref>Esmaeili Fallah, Gharavi Naeini, and Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” pp. 16-17.</ref> The obligation to compensate for the depreciation of money when repaying a loan,<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref> the establishment of copyright and intellectual property,<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> and the obligation to respect the rights of future generations<ref>Hosseini and Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” p. 253.</ref> are among the other such opinions.

== Intrinsic Authority of Certainty ==
At a fundamental level, the most important foundation of the non-authority of the rule of justice may be regarded as dependent on the intrinsic authority of certainty. According to the view of many jurists, it is “certainty” that possesses intrinsic authority, and the validity of every other proof must ultimately be traced back to it. On this basis, a rational judgment is valid only when it is certain and free from every form of conjecture and doubt. According to this view, the authority of reason is itself extrinsic and depends on attaining certainty.<ref>Montazeri, ''Majma‘ al-Fawa’id'', p. 213.</ref>

Using the same argument, Shaykh Ansari states in a counterargument to the Akhbaris that if certainty obtained from rational proof is not authoritative, then certainty obtained from transmitted proof should likewise not be authoritative, because the criterion of authority in both cases is merely the “attainment of certainty.”<ref>Ansari, ''Fara’id al-Usul'', vol. 1, p. 15.</ref> Mohammad Reza Muzaffar likewise maintains that a rational proof is authoritative only if it leads to certainty, because certainty is an authoritative proof on which the authority of every other proof, including reason, depends.<ref>Muzaffar, ''Usul al-Fiqh'', vol. 2, pp. 125-127.</ref> The conclusion is that, because reason cannot comprehensively apprehend the underlying grounds of religious rulings, its judgment in such cases is not definitive. Consequently, reason’s judgment under the rule of justice is not authoritative.

=== General Proofs Prohibiting Conjecture ===
Because reason does not comprehensively apprehend the underlying grounds when identifying instances of justice and injustice, its judgments are conjectural and fall under the general proofs prohibiting action based on conjecture, such as [[Verse 18 of Sura Yunus]] and [[Verse 116 of Sura al-An‘am|Verse 116 of Sura al-An‘am]], as well as numerous narrations.<ref>Barqi, ''al-Mahasin'', vol. 1, p. 205; Majlisi, ''Bihar al-Anwar'', vol. 1, p. 208.</ref> Some Usuli scholars explicitly maintain that, because no specific proof establishes the authority of conjectural reason, these general proofs suffice to establish its non-authority.<ref>Sadr, ''Jawahir al-Usul'', p. 177.</ref> On this basis, the authority of the rule of justice is likewise negated, because instances of justice under this rule are identified through conjectural reason. According to these Usuli scholars, reason’s definitive judgment is confined to the universal titles of “justice” and “injustice,”<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> while rational apprehensions concerning particular instances of these titles remain merely at the level of a causal requirement rather than a complete cause.<ref>Kharrazi, ''‘Umdat al-Usul'', vol. 4, p. 388; Khoei, ''al-Hidaya fi al-Usul'', vol. 3, pp. 69-70.</ref> Therefore, judgments concerning instances of these two titles are conjectural and invalid because reason lacks comprehensive knowledge of the underlying grounds.

=== Narrations Negating the Authority of Conjectural Reason ===
From the perspective of Usuli scholars, abundant narrative evidence establishes the non-authority of conjectural reason concerning instances of justice. By negating the authority of reason’s determinations, this evidence also undermines the validity of the rule of justice. The best-known expression in these narrations is “Indeed, the religion of God cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول).<ref>Bahrani, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', vol. 1, p. 324.</ref> In analyzing this narration, it has been stated that rational understanding does not attain the divine religion because reason does not comprehend the benefits and harms beyond actions; if reason becomes accustomed to this method, it will lose confidence in the Sharia’s textually prescribed commands.<ref>Madani Tabrizi, ''Qawa‘id al-Usul'', pp. 109-110.</ref>

The narrations rejecting analogy and personal opinion are also among the proofs cited by opponents of the authority of the rule of justice. The narrative heritage contains dozens of narrations criticizing personal opinion and analogy.<ref>For examples, see: Hurr al-Amili, ''Wasa’il al-Shi‘a'', vol. 27, pp. 35-62; Majlisi, ''Bihar al-Anwar'', vol. 2, pp. 283-316.</ref> In the narrations, analogy and personal opinion are treated as methods for resolving religious questions, severely condemned, and characterized as satanic practices. Some scholars have also generalized these narrations beyond their particular subjects and extended them to the general category of conjectural rational proofs.<ref>Makarem Shirazi, ''Anwar al-Usul'', vol. 2, p. 473.</ref>

== Impossibility of Comprehensively Apprehending the Underlying Grounds of the Rulings of the Sharia ==
The impossibility of comprehensively apprehending the underlying grounds of the rulings of the Sharia appears to be the most important argument for the non-authority of the rule of justice, such that several other arguments also depend on it and construct one of their premises by relying on this argument.

Accepting the rule of justice requires discovering the underlying grounds of rulings so that instances of justice and injustice may be identified. Jurists, however, maintain that the human intellect does not comprehensively apprehend the underlying grounds of rulings,<ref>Hakim, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', p. 277.</ref> because only God knows all the characteristics of an act,<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 180.</ref> and reason, because of the possibility of error, cannot identify all of them.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, pp. 149-150; Tabatabaei Qomi, ''Ara’una fi Usul al-Fiqh'', vol. 2, pp. 38-39.</ref> The consequence of this lack of comprehensive knowledge is that only the Lawgiver can determine instances of justice and injustice.<ref>Musavi Khalkhali, ''al-Hakimiyya fi al-Islam'', p. 18.</ref>

Some explicitly state: “The identification of instances of titles such as justice and injustice follows religious legislation, not customary determination. The subject of rational goodness and evil is the actual instance specified by the Lawgiver; for this reason, retaliation against a believer for killing an unbeliever is not justice, and assisting an [[apostasy|apostate]] is not benevolence.”<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 187.</ref>

=== Interest in the Legislation Itself ===
One possibility that prevents reason from definitively discovering an underlying ground is that the interest of a ruling may lie in the legislation and obligation itself rather than in its object.<ref>Khomeini, ''Tahrirat fi al-Usul'', vol. 3, pp. 313-314.</ref> In other words, the Lawgiver sometimes institutes obligations to test the servants’ obedience, while the acts themselves do not necessarily entail any benefit or harm; rather, the very act of commanding them entails an interest. Examples include certain details of devotional acts, such as the number of prayer units, whose interest appears to lie in obligating legally responsible persons to follow these commands in order to test the extent of their servitude. Because reason is unaware of the interests inherent in the very imposition of obligations, it may err in this regard, and the precise identification of instances of justice and injustice in such cases is likewise impossible.

=== Reason’s Failure to Consider Conflicting Factors and Impediments ===
Opponents of the authority of the rule of justice explain that rational apprehensions always face “the possibility of failing to consider conflicting factors or impediments.”<ref>Khoei, ''Dirasat fi ‘Ilm al-Usul'', vol. 3, p. 77; Subhani Tabrizi, ''al-Mahsul fi ‘Ilm al-Usul'', vol. 3, p. 85.</ref> This is because there may always be a benefit or harm stronger than that discovered by reason that conflicts with it and of which reason is unaware. For example, reason may perceive the harm of retaliation in the offender’s family being deprived of him, while overlooking the more general interest of deterrence. Alternatively, it may perceive an obligatory interest in brushing one’s teeth but remain unaware of the impediment of “facilitating matters for the servants,” which prevents it from becoming obligatory.<ref>Tabatabaei Hakim, ''al-Muhkam fi Usul al-Fiqh'', vol. 2, p. 177.</ref> On this basis, many matters initially regarded as justice or injustice are not so in reality, and identifying the subject of the rule of justice consequently becomes impossible.

=== Lack of Comprehensive Knowledge of Particulars ===
Another argument advanced by opponents of the authority of the rule of justice is that reason is incapable of comprehending the goodness and evil of particular matters, because such comprehension depends on innumerable benefits and harms that reason cannot comprehensively apprehend; consequently, certainty regarding the religious ruling cannot be attained.<ref>Hosseini Shirazi, ''Bayan al-Usul'', vol. 1, p. 149.</ref> In fact, in the process of discovery, reason cannot confine itself to what it apprehends and regard it as the entire underlying ground, because it can always conceive of infinitely many other benefits and harms of which it is unaware.

Some maintain that reason has access neither to the causes of rulings nor to the wisdoms underlying divine commands, particularly in complex social rulings;<ref>Sanad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', p. 277.</ref> it is evident that, under such circumstances, reason cannot identify actual justice and injustice.

=== Unawareness of Otherworldly Benefits and Harms ===
Reason’s inability to access “otherworldly benefits and harms” and the confinement of rational apprehension to the characteristics of worldly life constitute another argument invoked to undermine the authority of the rule of justice.<ref>Shahid al-Awwal, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', p. 7.</ref> On this basis, the mysteries and causes of jurisprudential rulings can be accepted only through transmitted evidence, because it is unknown whether the domain of their benefits is this world or the hereafter and whether they pertain to the individual or the human species; therefore, reason cannot issue a definitive judgment concerning these matters.<ref>Tabrizi, ''Khulasat al-Usul'', pp. 68-70.</ref> For example, although men’s unilateral [[right to divorce]] may entail harms in this world, [[women’s marital obedience]] in relation to this religious ruling may entail innumerable otherworldly benefits that cannot be compared with those harms.

== Disputing the Textual Proofs Establishing the Rule of Justice ==
The contemporary researcher [[Sayf Allah Sorami|Sayf Allah Sorami]] maintains that the rule of justice has only a negative function and can negate unjust rulings;<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 29-51.</ref> it cannot affirmatively and independently establish a religious ruling in cases not addressed by texts. He critically examines in detail the Quranic proofs invoked to establish the rule of justice.<ref>Sorami, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” pp. 70-77.</ref> To substantiate this claim, he divides the proofs invoked for the authority of the rule of justice into two categories and criticizes each of them.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 52-55.</ref>

=== Proofs Expressed in the Language of Negating Injustice ===
The first category of proofs for the rule of justice consists of those that negate injustice from God through negative language, such as the verse “Your Lord is not unjust to His servants” (وَ ما رَبُّکَ بِظَلّامٍ لِلعَبید) ([[Verse 46 of Sura Fussilat|Quran 41:46]]). Sorami maintains that these proofs cannot establish the authority of the rule of justice, because an “affirmation” cannot be inferred from “negative language.” These rules concern only existing rulings and exclude from the Sharia those rulings that constitute harm, hardship, or, in the present case, injustice. These proofs cannot, however, independently establish a ruling in order to eliminate harm or injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref>

Sorami also explicitly states that theological foundations such as the “perfection of the Sharia” or “the absence of any event without a ruling,” although rationally and ontologically correct, cannot alter the indication of a verbal proof at the level of demonstration and customary understanding. Customary understanding does not infer from the statement “God is not unjust” that God has therefore legislated a specific ruling to eliminate every instance of injustice.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 53.</ref> Attempting to establish a ruling through these proofs is a form of “[[juristic preference|invalid juristic preference]].” For example, the no-harm rule cannot be used to establish “liability” for a defrauding seller who charges an excessive price in order to compensate the defrauded party’s loss. Similarly, the fact that an act is not unjust is, at most, a “component of the cause” for legislating a ruling rather than its “complete cause.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

=== Proofs Expressed in the Language of Affirming Justice ===
The second category of proofs establishing the rule of justice consists of those that command justice, such as the verse “[[Verse 90 of Sura al-Nahl|Indeed, God commands justice and benevolence]].” Sorami maintains that the addressees of these proofs are individuals and that their subject matter is the “act of the legally responsible person.” Their primary and definitive apparent meaning is that God requires His servants to act justly.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 54.</ref> The command to justice does not concern the “act of the Lawgiver,” namely the legislation of rulings. The other commands and prohibitions in Verse 90 of Sura al-Nahl—such as benevolence, giving, and the prohibition of indecency—all concern the actions of legally responsible persons. The concluding phrase of the verse, “He admonishes you so that you may take heed,” likewise confirms that the verse is intended to admonish its addressees.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 53-54.</ref>

In responding to an objection, Sorami explains that although it may be inferred by “definitive a fortiori reasoning” from the command addressed to legally responsible persons that God is also just in legislation, this has no bearing on the affirmative dimension of the rule of justice. This is because the proposition that “every religious ruling is just” does not mean that “everything just is a religious ruling.” The only benefit of this proposition is the same negative function of the proofs, understood through the “contrapositive”: “Whatever is not just—that is, whatever is unjust—is not a religious ruling.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref> Second, understanding a proposition through rational a fortiori reasoning differs from understanding it from the expression itself. The authority of “customary understanding” in comprehending meanings pertains to the indications of the expression itself, not to rational implications external to it. Therefore, one cannot rely on a fortiori reasoning to extend the authority of customary understanding in identifying instances of justice to every context and derive a religious ruling from it.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” p. 55.</ref>

== Footnotes ==
{{Footnotes}}

== Sources ==
{{References}}
* The Holy Quran.
* Esmaeili Fallah, Marzieh, Nahleh Gharavi Naeini, and Tuba Shakeri Golpayegani, “The Permissibility of Sexual Enjoyment from a Minor Wife: A Critical Reading,” ''Women’s Research Journal'', no. 46, 1402 SH.
* Ashari Qomi, Ahmad ibn Mohammad, ''al-Nawadir'', Qom, Imam al-Mahdi (a) School, 1408 AH.
* Ansari, Morteza, ''Fara’id al-Usul'', Qom, Society of Seminary Teachers, 1416 AH.
* Bahrani, Yusuf, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', Beirut, Dar al-Mustafa (s) li-Ihya’ al-Turath, 1423 AH.
* Barqi, Ahmad ibn Mohammad, ''al-Mahasin'', Qom, Dar al-Kutub al-Islamiyya, n.d.
* Tabrizi, Gholam-Hossein, ''Khulasat al-Usul'', Mashhad, Tus, 1372 SH.
* Hurr al-Amili, Mohammad ibn Hasan, ''Tafsil Wasa’il al-Shi‘a ila Tahsil Masa’il al-Shari‘a'', Qom, Al al-Bayt (a) Institute, 1409 AH.
* Hosseini Shirazi, Sadiq, ''Bayan al-Usul'', Qom, Dar al-Ansar, 1427 AH.
* Hosseini, Sayyid Ali, and Sayyid Amr Allah Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” ''Journal of Social Jurisprudence Research'', no. 18, 1400 SH.
* Hakim, Sayyid Mohammad Taqi, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', Qom, Ahl al-Bayt (a) World Assembly, 1418 AH.
* Kharrazi, Sayyid Mohsen, ''‘Umdat al-Usul'', Qom, Dar Rah-i Haqq Institute, 1418 AH.
* Khomeini, Sayyid Mustafa, ''Tahrirat fi al-Usul'', Qom, Institute for Compilation and Publication of Imam Khomeini’s Works, 1376 SH.
* Khoei, Sayyid Abu al-Qasim, ''al-Hidaya fi al-Usul'', Qom, Sahib al-Amr (aj) Cultural Institute, 1417 AH.
* Khoei, Sayyid Abu al-Qasim, ''Dirasat fi ‘Ilm al-Usul'', Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1419 AH.
* Khoei, Sayyid Abu al-Qasim, ''Mawsu‘at al-Imam al-Khoei'', Qom, al-Tawhid Publishing, 1418 AH.
* Subhani Tabrizi, Jafar, ''al-Mahsul fi ‘Ilm al-Usul'', Qom, Imam al-Sadiq (a) Institute, 1414 AH.
* Saeedi, Sayyid Mohsen, “The Theory of Compensating for the Depreciation of Money,” ''Ahl al-Bayt (a) Jurisprudence Journal'', no. 45, 1385 SH.
* Soltani Renani, Mohammad, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” ''Contemporary Comparative Legal Studies'', no. 21, 1399 SH.
* Sanad, Mohammad, ''Usus al-Nizam al-Siyasi ‘inda al-Imamiyya'', Qom, Madin, 1426 AH.
* Shahid al-Awwal, Mohammad ibn Makki, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', Qom, Grand Ayatollah Marashi Najafi Public Library, 1403 AH.
* Shirvani, Ali, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” ''Revelatory Ethics'', no. 19, 1399 SH.
* Sadr, Sayyid Mohammad Baqir, ''Jawahir al-Usul'', Beirut, Dar al-Ta‘aruf li-l-Matbu‘at, 1415 AH.
* Sorami, Sayf Allah, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” ''Fiqh'', no. 87, 1395 SH.
* Sorami, Sayf Allah, “A Critique of Arguments from the Holy Quran for Establishing the Jurisprudential Rules of Justice and the Negation of Injustice,” ''Quran, Jurisprudence, and Islamic Law'', no. 9, 1397 SH.
* Sorami, Sayf Allah, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” ''Quran, Jurisprudence, and Islamic Law'', no. 12, 1399 SH.
* Tabatabaei Hakim, Mohammad Saeed, ''al-Muhkam fi Usul al-Fiqh'', Qom, al-Manar Institute, 1414 AH.
* Tabatabaei Qomi, Taqi, ''Ara’una fi Usul al-Fiqh'', Qom, Mahallati, 1371 SH.
* Abdolrezaei Dastgerdi, Mohammad, Ali-Mazhar Qaramaleki, and Sayyid Hossein Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” ''Research in Islamic Jurisprudence and Law'', no. 77, 1403 AH.
* Ali-Akbarian, Hasan Ali, ''The Rule of Justice in Imami Jurisprudence'', Qom, Islamic Sciences and Culture Academy, 1387 SH.
* Majlisi, Mohammad Baqir, ''Bihar al-Anwar'', Beirut, Dar Ihya’ al-Turath al-Arabi, 1403 AH.
* Madani Tabrizi, Yusuf, ''Qawa‘id al-Usul'', Qom, Office of Ayatollah Madani Tabrizi, 1429 AH.
* Motahhari, Morteza, ''Notes of Professor Motahhari'', Tehran, Sadra, 1390 SH.
* Muzaffar, Mohammad Reza, ''Usul al-Fiqh'', Qom, Isma‘iliyan, 1375 SH.
* Makarem Shirazi, Naser, ''Anwar al-Usul'', Qom, Imam Ali ibn Abi Talib (a) School, 1428 AH.
* Montazeri, Hossein Ali, ''Majma‘ al-Fawa’id'', Qom, Sayeh Publications, 1384 SH.
* Musavi Khalkhali, Mohammad Mahdi, ''al-Hakimiyya fi al-Islam'', Qom, Islamic Thought Academy, 1383 SH.
{{End}}
[[fa:عدم حجیت قاعده عدالت]]

Authority of the rule of justice

2026-09-18T18:06:47Z

Enadmin: Created page with "{{Author |author = Mahdi Shajarian |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' The '''authority of the rule of justice''' is a position held by a group of jurists who incorporate the rule of justice into ijtihad and give it precedence over other proofs. They rely on several proofs, including verses of the Quran, numerous narrations, the rule of correlation between reason’s judgment regarding the goodness of justice..."

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* '''Abstract'''
The '''authority of the rule of justice''' is a position held by a group of jurists who incorporate the [[rule of justice]] into ijtihad and give it precedence over other proofs. They rely on several proofs, including verses of the Quran, numerous narrations, the rule of correlation between reason’s judgment regarding the goodness of justice and the ruling of the Sharia, the continuous practice of rational people, and the necessity of comparing narrations with the Quranic principle negating injustice. According to proponents of the rule of justice, these proofs can establish the authority of the rule on several levels: a) as a “jurisprudential rule” alongside other rules; b) as a “governing principle” that restricts the unrestricted scope of proofs; and c), at a deeper level, as a “supra-jurisprudential principle” that supervises the entire Islamic legislative system and is regarded as the spirit governing its laws.

The consequences and implications of accepting the rule of justice extend beyond deriving subsidiary rulings and include functions such as: 1. enabling the evaluation and criticism of existing jurisprudential rulings; 2. providing solutions to emerging issues in view of changes in customary instances of injustice according to time and place; 3. explaining the foundations of important rules such as the “[[no-harm rule]]” and the “[[rule of negating intolerable hardship|negation of intolerable hardship]]” and referring them to the superior principle of justice; and 4. directly influencing the orientation of jurisprudential understanding. The manner in which the rule affects jurisprudential understanding has been interpreted in two ways: one approach regards justice as an effective indicator in understanding the proofs and considers it inferior to a jurisprudential rule, while the other regards it as one of the fundamental objectives of the Sharia and superior to a jurisprudential rule.

Relying on the principle of justice, some authors have also addressed more fundamental matters, such as examining whether a narration was issued, determining the circumstances of its issuance, establishing contextual restriction or unrestrictedness, and similar issues. Changes in fatwas on matters such as [[child marriage]], [[copyright]], [[moral rights]], compensation for the depreciation of money, and the reclamation of land through modern technologies have likewise been regarded as consequences of recognizing the authority of the rule of justice.

== Authority of the Rule of Justice ==
The authority of the rule of justice is a position held by a range of jurists who, relying on certain proofs, incorporate this rule into ijtihad and give it precedence over other proofs. According to this group of jurists, a “jurisprudential rule” has two criteria: comprehensiveness, meaning applicability throughout various chapters of jurisprudence, and the capacity to create a non-stable conflict with other proofs and restrict their unrestricted scope. Possessing both characteristics, the rule of justice governs the generality of other proofs and qualifies them.<ref>Ali-Akbarian, The Rule of Justice in Imami Jurisprudence, pp. 31-32.</ref>

According to some views, the rule of justice goes beyond an ordinary jurisprudential rule, such as the no-harm rule, and, as a principle and universal major premise governing all rulings of the Sharia, even treats jurisprudential rules as its subordinate instances. Accordingly, the rule of justice is intended in a broad and comprehensive sense that also encompasses functions extending beyond and differing from those of a jurisprudential rule. This expression, with the same broad approach, has appeared in contemporary works.

=== Governance of the Proofs of Justice over Other Proofs of Rulings ===
One method of explaining the precedence of justice is based on the theory of the governance of proofs. According to this view, definitive proofs indicating that the Sharia is just govern proofs from which an unjust ruling is inferred. If a ruling derived from a narration is intrinsically unjust, its proof ceases to be authoritative; if its unrestricted application is unjust, it is restricted by the proofs of justice.<ref>Ali-Akbarian, The Rule of Justice in Imami Jurisprudence, pp. 76-77.</ref>

Some have explained this governance by emphasizing the ontological status of justice within rulings and referring rules such as “no harm” to it. They maintain that justice is an inviolable principle in creation and legislation, and that rules such as the “negation of harm” and the “negation of hardship,” which take precedence over other proofs, are themselves founded on the superior principle of justice. Therefore, the rule of justice, as the foundation of these rules, governs all proofs of primary rulings.<ref>Mirzaei and Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” p. 27.</ref>

Others have explained this precedence on the basis of restriction and specification through rationally perceived injustice. The proofs negating injustice restrict religious rulings to the domain of “non-injustice.” Therefore, when the unrestricted application of a conjectural proof—its apparent meaning—leads, according to customary understanding, to an unjust ruling, the proofs negating injustice restrict that application.<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 62-64.</ref>

== Effects of the Authority of the Rule of Justice ==
Two kinds of effects may be considered for the authority of the rule of justice in deriving subsidiary jurisprudential rulings: first, its effect on fundamental discussions and principles of ijtihad situated within principles of jurisprudence and the foundations of jurisprudence; and second, its effect on deriving subsidiary jurisprudential rulings, such as establishing the [[child marriage|impermissibility of marriage to a minor girl]],<ref>Mosallinejad et al., “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” pp. 104-105.</ref> establishing [[copyright]],<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> and the obligation to compensate for the [[depreciation of money]].<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref>

=== Influence on Usuli and Jurisprudential Rules ===
In its broad sense, the rule of justice also affects principles of jurisprudence. This rule supports “[[rational exemption]]”—the impropriety of punishment without prior explanation—and the “[[negation of obligations beyond one’s capacity]],” because punishing an inculpably ignorant person and commanding an act beyond an individual’s ability are, from the perspective of reason, instances of injustice.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 133-134.</ref>

Another author argues that the “[[no-harm rule]]” is an instance of the more general rule of “justice.” Evidence for this claim is that prohibited harm in jurisprudence is unjust harm, and the criterion of justice and injustice must be used to identify it.<ref>Tabatabaei, “The Relationship between the Rule of Justice and Other Jurisprudential Rules,” pp. 3-9.</ref> In response to the objection of “specification of the majority” concerning the no-harm rule, prominent jurists have regarded the criterion for negated harm as its being unjust, such that just harm, such as khums and retaliation, does not fall within the rule’s negation.<ref>Tabatabaei, “The Relationship between the Rule of Justice and Other Jurisprudential Rules,” pp. 155-158.</ref>

=== Application of Justice in Directing Jurisprudential Understanding ===
According to some jurists, justice is not a “jurisprudential rule” but an “indicator” employed in ijtihad to understand proofs and functioning as an auxiliary criterion for interpreting texts. The difference is that a “rule” is a source of legal inference, whereas an “indicator” is an instrument for interpreting other proofs.<ref>Ziaifar, “Forms of Employing Justice in Jurisprudence and Ijtihad,” p. 308.</ref>

According to this view, some applications of justice as an indicator are as follows:

# Weakening confidence in the issuance of a narration, such as rejecting narrations permitting devices for circumventing usury because of their unjust content;
# Determining the circumstances of a narration’s issuance, such as interpreting the narration “You and your property belong to your father” as a disciplinary statement rather than one issued in a legislative capacity;
# Establishing contextual restriction in the unrestricted scope of a proof, such as limiting the “right of passage” to cases that do not cause injustice to the owner of an orchard;
# Removing ambiguity from a text, such as preferring the meaning of the Imam’s “institutional ownership” over “personal ownership” of anfal;
# Restricting a ruling to a particular period, such as limiting narrations permitting anfal to the Shia to the era of unjust governments; and
# Preference when proofs conflict, such as giving precedence to a narration compatible with justice over one that conflicts with it.<ref>Ziaifar, “Forms of Employing Justice in Jurisprudence and Ijtihad,” pp. 309-319.</ref>

According to another view, justice is a “supra-jurisprudential principle” and one of the [[objectives of Sharia|objectives of Islam]] that a jurist must consider throughout every stage of inference. This principle guides the jurist in interpreting conjectural evidence, directly serves as the basis of a ruling when deriving secondary rulings, and, when an explicit text conflicts with the principle of justice, acts as an important indicator directing the jurist toward definitive rational evidence. If the purport of the text is established as unjust, the jurist may set it aside on the basis of that rational proof. Thus, without departing from the framework of principles of jurisprudence, the issuance of a ruling contrary to the objectives of Sharia is prevented.<ref>Abdolrezaei Dastgerdi et al., “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” pp. 100-102.</ref>

=== Evaluating Existing Jurisprudential Rulings ===
One of the principal functions of the rule of justice is to evaluate existing rulings. According to [[Morteza Motahhari]], justice belongs to the chain of the “causes” of rulings, not their “effects”; that is, a ruling itself must be evaluated according to the criterion of justice.<ref>Motahhari, Notes of Professor Motahhari, vol. 1, p. 52.</ref> On this basis, he rejected the unrestricted scope of a husband’s right to divorce where it leads to injustice against the wife—retaining her with the intention of causing harm—and regarded it as conflicting with the governing principle of justice.<ref>Motahhari, The System of Women’s Rights in Islam, p. 273.</ref>

Some have extended the scope of this rule even to devotional matters. They maintain that wudu or tayammum performed with usurped water or soil is invalid because such an act constitutes unjust appropriation, and an act that is intrinsically reprehensible cannot, as an act of worship, bring a person closer to God or be commanded by the Lawgiver.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 138-140.</ref>

=== Application of the Rule to Emerging Issues ===
Another application of the rule of justice is discovering the rulings governing emerging subjects. For example, under present conditions in which the [[reclamation of land through modern technologies]] is easily possible, the unrestricted ruling of ownership may result in injustice in the distribution of wealth, and the rule of negation of injustice restricts that unrestricted ruling.<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 48-50.</ref>

In the same context, some authors maintain that although the “concept” of justice is fixed and innate, its “instances” may change according to time and place. Drawing on the Quranic concept of ma‘ruf, they argue that a ruling such as [[child marriage|marriage to a minor girl]] may not have been considered unjust in a primitive society, but today, in view of its negative consequences, it may constitute a manifest instance of injustice; this change in the instance requires reconsideration of the ruling.<ref>Mosallinejad et al., “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” pp. 102-103.</ref>

== Arguments from the Quran and Sunna ==
Numerous verses have been invoked to establish the authority of the rule of justice, including [[Verse 90 of Sura al-Nahl]]: “Indeed, Allah commands justice and benevolence”; [[Verse 182 of Sura Al Imran|Verse 182 of Sura Al Imran]]: “Allah is not unjust to His servants”; [[Verse 25 of Sura al-Hadid|Verse 25 of Sura al-Hadid]]: “We certainly sent Our messengers with clear proofs and sent down with them the Book and the balance so that people may uphold justice”; [[Verse 115 of Sura al-An‘am|Verse 115 of Sura al-An‘am]]; and [[Verse 108 of Sura Al Imran|Verse 108 of Sura Al Imran]]. In addition to these verses, numerous narrations have also been regarded as proofs of this rule.<ref>Ibn Babawayh, al-Tawhid, p. 96; Ibn Babawayh, Man la Yahduruhu al-Faqih, vol. 2, p. 44; Tamimi Amadi, Ghurar al-Hikam, vol. 1, pp. 26-28; Hurr al-Amili, Wasa’il al-Shi‘a, vol. 27, p. 171; Majlisi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, vol. 8, p. 46.</ref>

The authors maintain that these transmitted proofs, by presenting God as commanding justice, negating every form of injustice from Him, and identifying justice as the objective of religion and the source of society’s vitality, provide strong support for the authority of the rule of justice in jurisprudence.<ref>Mosallinejad, Sadat Kiyaei, and Vojdani, “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” p. 101.</ref> They also infer, by citing verses that identify the establishment of equity as the purpose of sending messengers, that a religion whose objective is the establishment of justice cannot contain injustice within its rulings and that these verses exclude every unjust ruling from the domain of the Sharia.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 130-131.</ref> According to others, the unrestricted and general character of these verses transforms them into a general principle of inference applicable throughout all chapters of jurisprudence, on the basis of which every ruling incompatible with this principle may be negated.<ref>Asghari, “Justice as a Jurisprudential and Legal Rule,” pp. 5-6.</ref>

=== Necessity of Comparing Narrations with the Quran ===
Some have formulated another argument by combining the “narrations on comparison” with the Quranic verses. According to widely transmitted narrations, hadiths contrary to the Quran lack authority. The Quran, meanwhile, absolutely and without admitting specification, negates every form of injustice from God. Customary and rational understanding is the authority for determining whether a narration conflicts with this Quranic principle. Therefore, if a ruling derived from a narration is regarded as unjust according to customary understanding, that narration lacks authority because it conflicts with the Quranic principle of justice and must be discarded or interpreted differently. In other words, the Quran states, “God does not wrong His servants”; this means the kind of injustice that rational people understand to be unjust. Consequently, if a narration is unjust according to rational understanding, comparison with these Quranic verses causes it to lose its authority, and it must be set aside.<ref>Sanei, An Approach to Women’s Rights, pp. 166-167; Ali-Akbarian, The Rule of Justice in Imami Jurisprudence, pp. 260-274.</ref>

== Arguments from Reason and the Practice of Rational People ==

=== Rule of Correlation ===
Some authors establish the authority of the rule of justice by invoking the [[rule of correlation|correlation between the judgment of reason and the ruling of the Sharia]]. Since the Adliyya believe in intrinsic rational goodness and evil and regard reason’s independent apprehension of the goodness of justice and the evil of injustice as its clearest instance, this rational judgment also acquires religious authority through the rule of correlation.<ref>Qabel Jami, The Rule of Justice and Negation of Injustice, pp. 10-103.</ref> According to this argument, prior to any religious declaration, reason understands that justice is perfection and injustice is deficiency. Since God’s acts, including legislation, are free from deficiency, they necessarily revolve around justice. This rational foundation both grants the rule of justice governance over other rulings and transforms it into an independent source.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 128-129; Mirzaei and Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” pp. 19-21.</ref>

=== Practice of Rational People ===
The [[practice of rational people]] is also among the sources invoked by proponents of the authority of the rule of justice. According to this argument, justice is a principle shared and accepted by all rational people throughout the world, and their continuous practice is based on formulating laws according to it. Since the Lawgiver is the foremost of rational beings and His rulings are not separate from rational principles, this rational practice has been endorsed by the Lawgiver and can serve as proof of the authority of the rule of justice in jurisprudence.<ref>Asghari, “Justice as a Jurisprudential and Legal Rule,” p. 8.</ref>

Others have argued through conceptual analysis that “justice” in religious texts is not a specifically religious meaning but is the same rational and customary concept; otherwise, commanding it would be futile and amount to seeking what has already been obtained, as in a necessary proposition conditioned by its predicate. Therefore, when God commands justice, He commands everything that rational people consider just, and this customary understanding permits the jurist to identify instances of justice in every era by relying on rational understanding.<ref>Ali-Akbarian, The Rule of Justice in Imami Jurisprudence, pp. 52 and 329.</ref>

==Footnotes==
{{Footnotes}}
== Resources ==
{{References}}
* The Holy Quran.
* Abdolrezaei Dastgerdi, Mohammad, Ali-Mazhar Qaramaleki, and Sayyid Hossein Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” Islamic Jurisprudence and Law Research, no. 77, 1403 SH.
* Ali-Akbarian, Hasan Ali, The Rule of Justice in Imami Jurisprudence, Qom, Islamic Sciences and Culture Academy, 1387 SH.
* Alidoust, Abu al-Qasim, “The Role of Justice in the First and Second Processes of Inference,” Fiqh, no. 81, 1393 SH.
* Asghari, Sayyid Mohammad, “Justice as a Jurisprudential and Legal Rule,” Private Law Studies, no. 9, 1388 SH.
* Hurr al-Amili, Mohammad ibn Hasan, Tafsil Wasa’il al-Shi‘a ila Tahsil Masa’il al-Shari‘a, Qom, Al al-Bayt (a) Institute, 1409 AH.
* Khomeini, Ruhollah, Kitab al-Bay‘, Tehran, Institute for Compilation and Publication of Imam Khomeini’s Works, 1382 SH.
* Majlisi, Mohammad Taqi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, Qom, Kushanpur Islamic Culture Foundation, 1406 AH.
* Mirzaei, Samira and Abdullah Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” Research and Studies in Islamic Sciences, no. 60, 1403 SH.
* Mosallinejad, Maryam, Sayyid Mohsen Sadat Kiyaei, and Fatemeh Vojdani, “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” Ethical Reflections, no. 10, 1401 SH.
* Motahhari, Morteza, Notes of Professor Motahhari, Tehran, Sadra, 1390 SH.
* Motahhari, Morteza, The System of Women’s Rights in Islam, Tehran, Sadra, 1386 SH.
* Qabel Jami, Hadi, The Rule of Justice and Negation of Injustice, Qom, Fiqh al-Thaqalayn, 1390 SH.
* Saeedi, Sayyid Mohsen, “The Theory of Compensating for the Depreciation of Money,” Ahl al-Bayt (a) Jurisprudence, no. 45, 1385 SH.
* Sanei, Yousef, An Approach to Women’s Rights, Qom, Fiqh al-Thaqalayn, 1390 SH.
* Shaykh Saduq, Mohammad ibn Ali, al-Tawhid, Qom, Society of Seminary Teachers, 1398 AH.
* Shaykh Saduq, Mohammad ibn Ali, Man la Yahduruhu al-Faqih, Society of Seminary Teachers, 1413 AH.
* Shirvani, Ali, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” Revelatory Ethics, no. 19, 1399 SH.
* Soltani Renani, Mohammad, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” Contemporary Comparative Legal Studies, no. 21, 1399 SH.
* Sorami, Sayf Allah, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” Fiqh, no. 87, 1395 SH.
* Sorami, Sayf Allah, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” Quran, Jurisprudence, and Islamic Law, no. 12, 1399 SH.
* Tabatabaei, Sayyid Mahmoud, “The Relationship between the Rule of Justice and Other Jurisprudential Rules,” Fiqh, no. 87, 1395 SH.
* Tamimi Amadi, Abd al-Wahid, Ghurar al-Hikam, Qom, Dar al-Kitab al-Islami, 1410 AH.
* Varaei, Sayyid Javad, “Political Jurisprudence and the Primacy of Justice in Governance,” Political Science, no. 76, 1395 SH.
* Ziaifar, Saeed, “Forms of Employing Justice in Jurisprudence and Ijtihad,” Jurisprudential Research, no. 17, 1393 SH.

{{End}}

[fa:حجیت قاعده عدالت]]

Rule of Justice

2026-09-18T17:57:55Z

Enadmin: Created page with "{{Related articles|Authority of the Rule of Justice|Non-Authority of the Rule of Justice}} {{Other books | author category = | further reading = Rule of Justice (Further Reading) | subject book category = }} {{Author |author = Mahdi Shajarian |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' The '''rule of justice''' is an emerging jurisprudential rule that some jurists and researchers consider superior to other jurisprudent..."

{{Related articles|Authority of the Rule of Justice|Non-Authority of the Rule of Justice}}
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* '''Abstract'''

The '''rule of justice''' is an emerging jurisprudential rule that some jurists and researchers consider superior to other jurisprudential and Usuli proofs and rules. On the one hand, this rule invalidates unjust rulings and considers them outside the Sharia; on the other hand, it has an affirmative function, lending authority to rulings that have no precedent in jurisprudence.

Proponents of the rule of justice identify “rational custom” and “independent reason” as the authorities for determining instances of justice and injustice. Accordingly, if the rule of justice is authoritative, rulings such as the obligation to [[compensate for the depreciation of money]] caused by inflation, recognition of [[intellectual property]], and the obligation to respect the [[rights of future generations]] may be considered valid.

The rule of justice has faced opposition from many jurists. The arguments advanced by its proponents are based on five foundations: 1. the Quran and Sunna; 2. the rule of rational correlation; 3. the requirement that narrations be compared with the Quran; 4. the practice of rational people; and 5. the precedence of the proofs of justice over other proofs. By contrast, the arguments of those who deny its authority rest on a common premise: “the non-authority of conjectural reason,” the most important justification for which is “the inability of reason to comprehend all the underlying grounds of rulings.” Consequently, rational judgments concerning justice cannot go beyond conjecture and thus fall under the general proofs prohibiting action based on conjecture and the narrations rejecting personal opinion.

== The Rule of Justice: Nature and Significance ==
Some views consider justice a law superior to all other religious laws. On this basis, [[Morteza Motahhari]] emphasizes that “from the Islamic perspective, justice is itself a criterion”<ref>Motahhari, Yaddasht-haye Ustad Motahhari, vol. 1, p. 52.</ref> and describes it as the “spirit of the law,” criticizing rigid adherence to apparent meanings.<ref>Motahhari, Yaddasht-haye Ustad Motahhari, vol. 3, p. 271.</ref> This approach places justice at the apex of the hierarchy of the Islamic legal system, under which all rulings and even other jurisprudential rules are defined.<ref>Shirvani, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” p. 101.</ref> Justice is regarded as the primary objective of Islamic government, such that justice in the “person of the ruler” is only a means of attaining justice and is not an end in itself. Similarly, [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] regarded Islamic rulings as “instruments” for expanding justice in society<ref>Varaei, “Political Jurisprudence and the Primacy of Justice in Governance,” pp. 91-92.</ref> and expressly stated this in Kitab al-Bay‘.<ref>Khomeini, Kitab al-Bay‘, vol. 2, p. 633.</ref>

This rule has both affirmative and negative dimensions: based on conformity with justice, it establishes one ruling while negating another. It has been stated that, like other jurisprudential rules, justice is a general rule because it encompasses multiple categories of rulings and applies throughout different chapters of jurisprudence. It also entails a kind of non-stable, reconcilable conflict with the proofs of other rulings; like the no-harm rule, it conflicts with and restricts the unrestricted scope of other proofs.<ref>Ali-Akbarian, Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya, pp. 31-32.</ref> The authority of the rule of justice in deriving subsidiary jurisprudential rulings has numerous implications and affects various subjects, including the impermissibility of [[marriage to a minor girl]],<ref>Mosallinejad et al., “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” pp. 104-105.</ref> [[copyright]],<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> and the obligation to [[compensate for the depreciation of money]].<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref>

In its negative dimension, the rule demonstrates that no unjust law has been legislated in the Sharia,<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 191.</ref> and that every jurisprudential ruling or theory that reason judges to result in injustice is excluded from and annulled by the Sharia.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 131-132.</ref> In other words, the rule of justice governs all laws in which the possibility of injustice exists.

The affirmative function of the rule of justice means establishing a religious ruling in cases where texts independent of the rule also support it. For example, some maintain that khul‘ is an independent and unilateral right of a wife to terminate a marriage, rather than a type of divorce requiring the husband’s consent. According to this view, separation takes effect merely through the woman’s declaration before the religious judge of her serious aversion and her relinquishment of property; no subsequent action or consent by the husband is required to execute the formula of divorce. The principal arguments for this view rest on two foundations. The first is the rule of justice, based on the proposition that reason and justice require both parties to a bilateral contract to have a means of terminating it. The second is explicit narrations attributing khul‘ to the woman, such as “khul‘ … takes place on the woman’s part” (الخلع ... يَكُونُ مِنْ قِبَلِ الْمَرْأَةِ),<ref>Tusi, Tahdhib al-Ahkam, vol. 8, p. 100.</ref> and describing khul‘ as “a separation not followed by a divorce” (تَطْلِیقَةٌ بِغَیْرِ طَلاقٍ یَتْبَعُهَا),<ref>Kulayni, al-Kafi, vol. 6, p. 140.</ref> such that separation occurs through the woman’s action.<ref>Qabel, Ahkam-i Banovan dar Shari‘at-i Muhammadi (s), pp. 164-200.</ref>

The combined affirmative and negative function of the rule of justice consists in establishing a religious ruling while simultaneously denying authority to texts that conflict with the rule. In this regard, some proponents of the rule maintain that, according to widely transmitted narrations, hadiths contrary to the Quran lack authority. The Quran, meanwhile, absolutely and without admitting specification, negates every kind of injustice from God. Therefore, if a ruling derived from a narration is considered unjust according to customary understanding, that narration lacks authority because it conflicts with the Quranic principle of justice and must be discarded or interpreted differently.<ref>Sanei, Ruykardi bi Huquq-i Zanan, pp. 166-167; Ali-Akbarian, Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya, pp. 260-274.</ref> On this basis, [[Yousef Saanei]], invoking the affirmative dimension of the rule of justice, issued a fatwa supporting the [[equality of blood money for women and men]]; relying on its negative dimension, he regarded the narrations prescribing half blood money and requiring payment of the excess blood money as unjust, contrary to the Quran, and non-authoritative.<ref>Sanei, Barabari-yi Diya, pp. 60-64.</ref>

=== Difference between the Rule of Justice and the Rule of Negation of Injustice ===
In contemporary jurisprudential research, in addition to the rule of justice, another rule known as the [[rule of negation of injustice]] has also been discussed. The central purport of the latter rule is that if the unrestricted application of a religious ruling in a particular case constitutes injustice, that unrestricted application ceases to be authoritative. Thus, the rule of negation of injustice does not challenge the ruling itself; rather, it limits its scope of application where it would lead to injustice.<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 29-30.</ref> It may therefore be said that the rule of negation of injustice constitutes only the negative dimension of the rule of justice: whenever the implementation of a ruling is unjust, the rule of negation of injustice excludes it.<ref>Ali-Akbarian, Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya, pp. 38-39.</ref>

=== History ===
In the works of early jurists, no codified jurisprudential rule known as the “rule of justice” can be found. Despite the Quran and narrations’ extensive emphasis on justice, most jurists did not formulate or consider a general, regulated, and fully developed rule under this title. Although jurists derived general jurisprudential rules from verses such as “[[Verse 1 of Sura al-Ma’ida|fulfill your contracts]],” they did not make similar systematic use of the numerous verses concerning justice. Some researchers have therefore regarded this omission as contributing to a form of stagnation in the jurists’ social thought.<ref>Motahhari, Barrasi-yi Ijmali-yi Mabani-yi Iqtisad-i Islami, p. 27.</ref>

Nevertheless, in a limited number of cases, jurists have invoked the justice or injustice of an act in deriving a religious ruling—for example, regarding the invalidity of the prayer of a wine-drinker,<ref>Bahrani, al-Hada’iq al-Nadira fi Ahkam al-‘Itra al-Tahira, vol. 6, p. 14.</ref> interference with another person’s property,<ref>Ansari, al-Makasib wa-l-Bay‘, vol. 2, p. 37.</ref> insulting or harming a believer,<ref>Khoei, Misbah al-Fiqaha, vol. 1, p. 271.</ref> the prohibition of certain [[devices for circumventing usury]],<ref>Khomeini, Kitab al-Bay‘, vol. 2, p. 415.</ref> and the prohibition of acquiring a hostile unbeliever’s property without a legitimate cause.<ref>Khoei, Mustanad al-‘Urwa al-Wuthqa, pp. 81-82.</ref> In all these cases, however, a specific text exists independently of the appeal to justice or injustice. Reliance on justice or injustice where no text exists, or where the apparent meaning of a text conflicts with such an assessment, is very rare.<ref>Sanei, Barabari-yi Qisas, pp. 27-75.</ref>

== Authority for Identifying Justice and Injustice ==
Some proponents of the authority of the rule of justice or the negation of injustice identify independent reason—not emotions, prejudgments, or hasty perceptions—as the authority for determining instances of justice and injustice.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 131-132.</ref> Others take customary injustice, as determined by rational people, as the criterion.<ref>Sanei, Ruykardi bi Huquq-i Zanan, pp. 166-167.</ref> Their justification is that if the Lawgiver’s command to refrain from injustice referred to instances unknown to the addressee, or legally responsible person, the command would be futile. Therefore, just as customary understanding determines hardship under rules such as the [[rule of no hardship]], rational custom determines injustice under the rule of negation of injustice.<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 37-38.</ref> When the Quran and narrations command justice, they do not intend a specifically religious and previously defined concept; rather, the Lawgiver has endorsed rational society’s understanding of justice and commanded adherence to it.<ref>Mirzaei and Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” pp. 24-25.</ref>

In the same vein, some authors maintain that although the “concept” of justice is fixed and innate, its “instances” may change according to time and place. Drawing on the Quranic concept of ma‘ruf, they argue that a ruling such as marriage to a minor girl may not have been considered unjust in a primitive society, but may today, due to its negative consequences, constitute a manifest instance of injustice. Such a change in its instance necessitates reconsidering the ruling.<ref>Mosallinejad et al., “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” pp. 102-103.</ref>

== General Applications of the Rule of Justice in the Process of Ijtihad ==

=== Justice as a Superior Law ===
Some regard justice not merely as a jurisprudential rule but as a “supra-jurisprudential principle” and one of the objectives of Islam that a jurist must consider at every stage of legal inference. This principle guides the jurist in interpreting conjectural evidence, directly serves as the basis of secondary rulings, and, when an explicit text conflicts with the principle of justice, acts as an important indicator directing the jurist toward definitive rational evidence. If the content of the text is proven unjust, the jurist may set it aside on the basis of that rational proof. Thus, without departing from the framework of principles of jurisprudence, a ruling contrary to the [[objectives of Sharia]] can be avoided.<ref>Abdolrezaei Dastgerdi et al., “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” pp. 100-102.</ref>

=== Evaluating Existing Jurisprudential Rulings ===
One of the principal functions of the rule of justice is to evaluate existing rulings. On this basis, Morteza Motahhari rejected the unrestricted scope of the [[husband’s right to divorce]] where it leads to injustice against the wife—retaining her with the intention of causing harm—and regarded it as conflicting with the governing principle of justice.<ref>Motahhari, Nizam-i Huquq-i Zan dar Islam, p. 273.</ref> The contemporary jurist [[Abu al-Qasim Alidoust]] likewise maintains that although justice is not directly one of the four sources, it is authoritative as a “jurisprudential rule,” because it derives its authority from the aggregate of religious texts and definitive rational judgments. Through induction of religious texts, the jurist reaches the “[[law of justice and fairness]],” and invoking this rule is effectively an appeal to the same proofs from which it has been derived.<ref>Alidoust, “The Role of Justice in the First and Second Processes of Inference,” p. 9.</ref>

=== Influence on Usuli and Jurisprudential Rules ===
The rule of justice, in its broad meaning, also affects principles of jurisprudence. It supports “rational exemption”—the impropriety of punishment without prior explanation—and the “negation of obligations beyond one’s capacity,” because punishing an inculpably ignorant person and commanding an act beyond an individual’s ability are, from a rational perspective, instances of injustice.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 133-134.</ref> Another author argues that the [[no-harm rule]] is an instance of the more general rule of justice. Evidence for this claim is that prohibited harm in jurisprudence is unjust harm, which must be identified through the criteria of justice and injustice.<ref>Tabatabaei, “The Relationship between the Rule of Justice and Other Jurisprudential Rules,” pp. 3-9.</ref>

=== Application of Justice in Directing Jurisprudential Understanding ===
According to some authors, justice is not a “jurisprudential rule” but an “indicator” used in ijtihad and the interpretation of evidence; it operates as an auxiliary criterion for understanding texts.<ref>Ziaifar, “Forms of Employing Justice in Jurisprudence and Ijtihad,” p. 308.</ref> Its role appears in matters such as weakening confidence in the issuance of a narration because of its unjust content, determining the circumstances in which a narration was issued, establishing a contextual restriction on the unrestricted meaning of a proof, removing ambiguity from a text, limiting a ruling to a particular period, and preferring evidence compatible with justice over incompatible evidence when proofs conflict.<ref>Ziaifar, “Forms of Employing Justice in Jurisprudence and Ijtihad,” pp. 309-319.</ref>

== Examples of Applying the Rule of Justice in Ijtihad ==
Contemporary authors have identified various subsidiary issues to which the rule may be applied. For example, regarding “copyright and [[intellectual property]],” denying creators rights over their works and permitting reproduction without their consent is regarded by contemporary rational people as injustice to the creator; therefore, the rule of negation of injustice may establish such a right.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 139-140.</ref> Respecting the [[rights of future generations]] has likewise been regarded as obligatory.<ref>Hosseini and Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” p. 253.</ref> Some have also stated that, under present conditions in which modern technologies make the revival of land easy, the unrestricted ruling of ownership may result in an unjust distribution of wealth.<ref>Sorami, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” pp. 48-50.</ref>

Some authors challenge the well-known view of jurists that permits the destruction of a usurper’s valuable property—such as a ship or building—to recover the owner’s relatively insignificant property, such as a wooden plank or brick. Citing the opinion of [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] and others, they argue that although a usurper is unjust, this does not justify reciprocal injustice against him. Reason regards destroying a building worth millions to recover a single brick as unjust. Therefore, the rule of negation of injustice requires recourse in such cases to a substitute, whether an equivalent item or its price.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 140-141.</ref>

The obligation to compensate for the depreciation of money is regarded as another consequence of accepting the rule of justice. For example, regarding usury, it has been argued that under conditions of severe inflation, repaying the same nominal sum of a loan after many years constitutes injustice to the lender. The rule of justice requires the real value and purchasing power of money to be considered in repayment in order to realize justice.<ref>Soltani Renani, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” pp. 142-143.</ref> Similarly, according to the rule of justice, each party to a bilateral transaction is obligated to render the other party’s right in full; otherwise, justice and equity have not been observed.<ref>Saeedi, “The Theory of Compensating for the Depreciation of Money,” p. 94.</ref>

== Arguments for and against the Authority of the Rule of Justice ==
Proponents and opponents of invoking justice as a rule have advanced various arguments for their respective positions.

=== Proponents of the Authority of the Rule of Justice ===
{{Main|Authority of the Rule of Justice}}
To establish the authority of the rule of justice, proponents cite verses that describe God as commanding justice ([[Verse 90 of Sura al-Nahl|Quran 16:90]), negate every kind of injustice from Him ([[Verse 182 of Sura Al Imran|Quran 3:182]]; [[Verse 108 of Sura Al Imran|Quran 3:108]]), and identify the establishment of equity as the purpose of sending messengers ([[Verse 25 of Sura al-Hadid|Quran 57:25]]). Numerous narrations<ref>Shaykh Saduq, al-Tawhid, p. 96; Shaykh Saduq, al-Faqih, vol. 2, p. 44; Tamimi Amadi, Ghurar al-Hikam, vol. 1, pp. 26-28; Hurr al-Amili, Wasa’il al-Shi‘a, vol. 27, p. 171; Majlisi, Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih, vol. 8, p. 46.</ref> that identify justice as the objective of religion also provide strong support for the rule’s authority.<ref>Mosallinejad et al., “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” p. 101.</ref>

It has also been argued that the absolute and non-specifiable verses of the Quran negate every form of injustice from God. Therefore, in light of the narrations requiring hadiths to be compared with the Quran, if a ruling inferred from a narration is unjust from a rational perspective, that narration ceases to be authoritative because it conflicts with the Quranic principle negating injustice.<ref>Sanei, Ruykardi bi Huquq-i Zanan, pp. 166-167; Ali-Akbarian, Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya, pp. 260-274.</ref>

Proponents also invoke the well-known [[rule of correlation]], arguing that the goodness of justice is a definitive rational judgment, and that this definitive judgment of reason acquires religious authority through the rule of correlation.<ref>Qabel Jami, Qa‘ida-yi ‘Idalat wa Nafy-i Zulm, pp. 10-103.</ref> Likewise, the continuous practice of rational people is to formulate laws based on justice. Since the Lawgiver is the “foremost of rational beings” and His rulings are not separate from rational principles, the Lawgiver is considered to have endorsed this rational practice. This endorsement may constitute an independent proof of the validity and authority of the rule of justice in the Islamic jurisprudential system.<ref>Asghari, “Justice as a Jurisprudential and Legal Rule,” p. 8.</ref>

Proponents of the authority of the rule further argue that, by way of “governance,” the proofs of justice take precedence over proofs from which an unjust ruling might be inferred and deprive them of authority.<ref>Ali-Akbarian, Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya, pp. 76-77.</ref> Justice is a foundational principle underlying rules such as “no harm” and “no hardship,” and thus governs all primary proofs.<ref>Mirzaei and Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” p. 27.</ref> It has also been stated that the proofs negating injustice restrict the unrestricted scope of other proofs to cases that are “not unjust.”<ref>Sorami, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” pp. 62-64.</ref>

=== Arguments of the Opponents of the Rule’s Authority ===
{{Main|Non-Authority of the Rule of Justice}}
Many jurists do not accept the rule of justice and regard it as non-authoritative. Arguments against its authority all rest on one common premise: “reason lacks authority to identify instances of justice and injustice with certainty.” Their general logic is that applying the rule requires a rational determination of instances of justice and injustice; for various reasons, however, these rational determinations are not definitive or certain but are “conjectural” and therefore lack religious authority according to principles of jurisprudence.

Those who deny the authority of conjectural reason maintain that the human intellect does not comprehend the actual and complete benefits and harms underlying religious rulings.<ref>Hakim, al-Usul al-‘Amma li-l-Fiqh al-Muqaran, p. 277.</ref> The benefit may lie in the issuance of the obligation itself—as a test of servitude—rather than in the act commanded;<ref>Khomeini, Tahrirat fi al-Usul, vol. 3, pp. 313-314.</ref> reason may be unaware of more important and conflicting benefits or harms;<ref>Khoei, Dirasat fi ‘Ilm al-Usul, vol. 3, p. 77; Subhani Tabrizi, al-Mahsul fi ‘Ilm al-Usul, vol. 3, p. 85.</ref> it may be unable to comprehend infinite criteria and complex details;<ref>Hosseini Shirazi, Bayan al-Usul, vol. 1, p. 149.</ref> and it is incapable of understanding benefits and harms pertaining to the hereafter.<ref>Shahid al-Awwal, Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya, p. 7; Tabrizi, Khulasat al-Usul, pp. 68-70.</ref> Consequently, its determination that a particular instance is just or unjust is unreliable.<ref>Musavi Khalkhali, al-Hakimiyya fi al-Islam, p. 18; Tabatabaei Hakim, al-Muhkam fi Usul al-Fiqh, vol. 2, p. 187.</ref>

They further maintain that the primary rule in principles of jurisprudence is the prohibition of acting on “conjecture,” as emphasized in numerous verses and narrations. Since reason’s determination of instances of justice is conjectural, it falls under these general prohibitions.<ref>Sadr, Jawahir al-Usul, p. 177.</ref> They also invoke narrations such as “God’s religion cannot be attained through human intellects” (إِنَّ دینَ اللهِ لا یُصابُ بِالعُقُول)<ref>Bahrani, al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya, vol. 1, p. 324.</ref> and narrations condemning “analogy” and “personal opinion,”<ref>Hurr al-Amili, Wasa’il al-Shi‘a, vol. 27, pp. 35-62; Majlisi, Bihar al-Anwar, vol. 2, pp. 283-316.</ref> thereby considering rational identification of instances of justice invalid.<ref>Makarem Shirazi, Anwar al-Usul, vol. 2, p. 473.</ref>

== Published Works ==
{{Main|Rule of Justice (Further Reading)}}
Several works have been published on the rule of justice. In the book [[The Rule of Justice in Imami Jurisprudence (book)|''The Rule of Justice in Imami Jurisprudence'']], [[Hasan Ali Ali-Akbarian]] interviewed five seminary scholars and published the interviews together with a content analysis. ''[[The Jurisprudential Rule of Justice (book)|The Jurisprudential Rule of Justice]]'' by Ali Elahi Khorasani and ''[[The Rule of Justice and Negation of Injustice]]'' by Hadi Qabel Jami are other written works relating to the rule. Numerous articles have likewise been published either on the rule of justice itself or on its application to jurisprudential issues.

==Footnotes==
{{Footnotes}}
==Bibliography==
{{References}}
* Abedinpour, Ehsan and Mohammad Ali Qasemi, ''Vakavi-yi Naqsh-i Izn dar Fiqh-i Pezeshki'', Qom, Jurisprudential Center of the Immaculate Imams (a), first edition, 1401 SH.
* Abdolrezaei Dastgerdi, Mohammad, Ali-Mazhar Qaramaleki, and Sayyid Hossein Hashemi, “The Nature and Status of Social Justice in the Process of Deriving Islamic Legal Rulings, with Emphasis on Imami Jurisprudence,” ''Research in Islamic Jurisprudence and Law'', no. 77, 1403 SH.
* Ali-Akbarian, Hasan Ali, ''Qa‘ida-yi ‘Idalat dar Fiqh-i Imamiyya'', Qom, Islamic Sciences and Culture Academy, 1386 SH.
* Alidoust, Abu al-Qasim, “The Role of Justice in the First and Second Processes of Inference,” ''Fiqh'', no. 81, 1393 SH.
* Ansari, Morteza, ''al-Makasib wa-l-Bay‘'', Qom, Society of Seminary Teachers, 1413 AH.
* Asghari, Sayyid Mohammad, “Justice as a Jurisprudential and Legal Rule,” ''Private Law Studies'', no. 9, 1388 SH.
* Bahrani, Yusuf, ''al-Durar al-Najafiyya min al-Multaqatat al-Yusufiyya'', Beirut, Dar al-Mustafa (s) li-Ihya’ al-Turath, 1423 AH.
* Bahrani, Yusuf, ''al-Hada’iq al-Nadira fi Ahkam al-‘Itra al-Tahira'', Qom, Society of Seminary Teachers, 1405 AH.
* Hakim, Mohammad Taqi, ''al-Usul al-‘Amma li-l-Fiqh al-Muqaran'', Qom, Ahl al-Bayt (a) World Assembly, 1418 AH.
* Hosseini, Sayyid Ali and Sayyid Amr Allah Hosseini, “The Purport of the Rule of Justice from the Perspective of Professor Motahhari,” ''Journal of Social Jurisprudence Research'', no. 18, 1400 SH.
* Hosseini Shirazi, Sadiq, ''Bayan al-Usul'', Qom, Dar al-Ansar, 1427 AH.
* Hurr al-Amili, Mohammad ibn Hasan, ''Tafsil Wasa’il al-Shi‘a ila Tahsil Masa’il al-Shari‘a'', Qom, Al al-Bayt (a) Institute for the Revival of Heritage, 1409 AH.
* Khomeini, Mustafa, ''Tahrirat fi al-Usul'', Qom, Institute for Compilation and Publication of Imam Khomeini’s Works, 1376 SH.
* Khomeini, Ruhollah, ''Kitab al-Bay‘'', Tehran, Institute for Compilation and Publication of Imam Khomeini’s Works, n.d.
* Khoei, Abu al-Qasim, ''Dirasat fi ‘Ilm al-Usul'', Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1419 AH.
* Khoei, Abu al-Qasim, ''Misbah al-Fiqaha'', Qom, Ansariyan, n.d.
* Khoei, Abu al-Qasim, ''Mustanad al-‘Urwa al-Wuthqa'', Qom, Lotfi, 1364 SH.
* Kulayni, Mohammad ibn Yaqub, ''al-Kafi'', Tehran, Dar al-Kutub al-Islamiyya, 1407 AH.
* Majlisi, Mohammad Baqir, ''Bihar al-Anwar'', Beirut, Dar Ihya’ al-Turath al-Arabi, 1403 AH.
* Majlisi, Mohammad Taqi, ''Rawdat al-Muttaqin fi Sharh Man la Yahduruhu al-Faqih'', Qom, Kushanpur Islamic Culture Foundation, 1406 AH.
* Makarem Shirazi, Naser, ''Anwar al-Usul'', Qom, Imam Ali ibn Abi Talib (a) School, 1428 AH.
* Mirzaei, Samira and Abdullah Omidifard, “The Relationship of the Rules of Equity, Fairness, and Justice with the No-Harm Rule,” ''Research and Studies in Islamic Sciences'', no. 60, 1403 SH.
* Mosallinejad, Maryam, Sayyid Mohsen Sadat Kiyaei, and Fatemeh Vojdani, “Ethical Reflections on the Permissibility of Marriage to a Minor Girl and Its Conflict with the Rule of Justice,” ''Ethical Reflections'', no. 10, 1401 AH.
* Motahhari, Morteza, ''Barrasi-yi Ijmali-yi Mabani-yi Iqtisad-i Islami'', Tehran, Hekmat, 1403 AH.
* Motahhari, Morteza, ''Nizam-i Huquq-i Zan dar Islam'', Tehran, Sadra, 1386 SH.
* Motahhari, Morteza, ''Yaddasht-haye Ustad Motahhari'', Tehran, Sadra, 1390 SH.
* Montazeri, Hossein Ali, ''Majma‘ al-Fawa’id'', Qom, Sayeh Publications, 1384 SH.
* Musavi Khalkhali, Mohammad Mahdi, ''al-Hakimiyya fi al-Islam'', Qom, Islamic Thought Academy, 1383 SH.
* Qabel, Ahmad, ''Ahkam-i Banovan dar Shari‘at-i Muhammadi (s)'', online publication: Rational Sharia, 1392 SH.
* Qabel Jami, Hadi, ''Qa‘ida-yi ‘Idalat wa Nafy-i Zulm'', Qom, Fiqh al-Thaqalayn, 1390 SH.
* Sadr, Mohammad Baqir, ''Jawahir al-Usul'', Beirut, Dar al-Ta‘aruf li-l-Matbu‘at, 1415 AH.
* Saeedi, Sayyid Mohsen, “The Theory of Compensating for the Depreciation of Money,” ''Ahl al-Bayt (a) Jurisprudence Journal'', no. 45, 1385 SH.
* Sanei, Yousef, ''Barabari-yi Diya'', Qom, Fiqh al-Thaqalayn, 1384 SH.
* Sanei, Yousef, ''Barabari-yi Qisas'', Qom, Fiqh al-Thaqalayn, 1383 SH.
* Sanei, Yousef, ''Ruykardi bi Huquq-i Zanan'', Qom, Fiqh al-Thaqalayn, 1390 SH.
* Shahid al-Awwal, Mohammad ibn Makki, ''Nadd al-Qawa‘id al-Fiqhiyya ‘ala Madhhab al-Imamiyya'', Qom, Grand Ayatollah Marashi Najafi Public Library, 1403 AH.
* Shaykh Saduq, Mohammad ibn Ali, ''al-Tawhid'', Qom, Society of Seminary Teachers, 1398 AH.
* Shaykh Saduq, Mohammad ibn Ali, ''Man la Yahduruhu al-Faqih'', Qom, Society of Seminary Teachers, 1413 AH.
* Shirvani, Ali, “The Status of Justice in the Structure of Jurisprudential Knowledge from the Perspective of Martyr Motahhari and Its Impact on the Relationship between Ethics and Jurisprudence,” ''Revelatory Ethics'', no. 19, 1399 SH.
* Soltani Renani, Mohammad, “The Application of the Rule of Negation of Injustice in Justice-Oriented Jurisprudence,” ''Contemporary Comparative Legal Studies'', no. 21, 1399 SH.
* Sorami, Sayf Allah, “An Examination of the Authority of the Rule of Justice in Textual and Non-Textual Cases,” ''Fiqh'', no. 87, 1395 SH.
* Sorami, Sayf Allah, “The Jurisprudential Rule of Negating Injustice in the Holy Quran,” ''Quran, Jurisprudence, and Islamic Law'', no. 12, 1399 SH.
* Subhani Tabrizi, Jafar, ''al-Mahsul fi ‘Ilm al-Usul'', Qom, Imam al-Sadiq (a) Institute, 1414 AH.
* Tabatabaei, Sayyid Mahmoud, “The Relationship between the Rule of Justice and Other Jurisprudential Rules,” ''Fiqh'', no. 87, 1395 SH.
* Tabatabaei Hakim, Mohammad Saeed, ''al-Muhkam fi Usul al-Fiqh'', Qom, al-Manar Institute, 1414 AH.
* Tabrizi, Gholam-Hossein, ''Khulasat al-Usul'', Mashhad, Tus, 1372 AH.
* Tamimi Amadi, Abd al-Wahid, ''Ghurar al-Hikam'', Qom, Dar al-Kitab al-Islami, 1410 AH.
* Tusi, Mohammad ibn Hasan, ''Tahdhib al-Ahkam'', Tehran, Dar al-Kutub al-Islamiyya, 1407 AH.
* Varaei, Sayyid Javad, “Political Jurisprudence and the Primacy of Justice in Governance,” ''Political Science'', no. 76, 1395 SH.
* Ziaifar, Saeed, “Forms of Employing Justice in Jurisprudence and Ijtihad,” ''Jurisprudential Research'', no. 17, 1393 SH.

{{End}}
[[fa:قاعده عدالت]]

File:Mohammad Fazel Lankarani.jpg

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Mohammad Fazel Lankarani

2026-09-18T17:50:31Z

Enadmin: Created page with "{{Author |author = Mahdi Khosravi Sereshki |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} {{infobox person | reputation = Ayatollah Fazel Lankarani | name = Mohammad Fazel Movahedi Lankarani | birth = 1310 SH | demise = 1386 SH | image = Mohammad Fazel Lankarani.jpg | image size = | caption = | position = Marja al-taqlid | denomination = Shia | nationality = Iranian | speciality = | works in contemporary jurisprudence = | op..."

{{Author
|author = Mahdi Khosravi Sereshki
|author2 =
|author3 =
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{{infobox person
| reputation = Ayatollah Fazel Lankarani
| name = Mohammad Fazel Movahedi Lankarani
| birth = 1310 SH
| demise = 1386 SH
| image = Mohammad Fazel Lankarani.jpg
| image size =
| caption =
| position = Marja al-taqlid
| denomination = Shia
| nationality = Iranian
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| works in contemporary jurisprudence =
| opinions =
| professors = [[Sayyid Hossein Tabatabaei Boroujerdi|Boroujerdi]] • [[Sayyid Ruhollah Musavi Khomeini|Khomeini]]
| students = [[Mohammad Javad Fazel Lankarani]] • [[Abu al-Qasim Alidoust]]
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}}
* '''Abstract'''

'''Mohammad Fazel Movahedi Lankarani''' (1310–1386 SH), commonly known as Mohammad Fazel Lankarani, was one of the Shia maraji al-taqlid of the fifteenth century AH. He was a student of [[Morteza Haeri Yazdi]], [[Sayyid Hossein Tabatabaei Boroujerdi]], [[Sayyid Ruhollah Khomeini]], and [[Sayyid Mohammad Hossein Tabatabaei]]. His major jurisprudential works include “Tafsil al-Shari‘a fi Sharh Tahrir al-Wasila” and “Usul al-Shi‘a li-Istinbat Ahkam al-Shari‘a.” His establishment of the [[Jurisprudential Center of the Immaculate Imams (a)]] was among his initiatives for the development of [[contemporary jurisprudence|contemporary Shia jurisprudence]].

Mohammad Fazel Lankarani’s jurisprudential and ijtihadi foundations rested on a combination of rigorous [[textualism]] and compatibility with [[reason]]; on the one hand, he adhered to the apparent meaning and import of narrations and regarded unrestricted and general expressions as authoritative only where [[customary understanding]] accepted them and the particular circumstances of the subject did not require a specific explanation from the Lawgiver. On the other hand, when a text conflicted with reason, he interpreted the narration in a manner that would not be incompatible with a definitive judgment of reason. In his method of inference, he belonged to the school of [[aggregation of presumptions]]; that is, rather than relying exclusively on the chain of transmission of a narration, he considered together a range of semantic indicators, context, circumstances of issuance, transmission by meaning, customary understanding, and the reputation of the early jurists in order to attain confidence in its issuance. In view of contemporary developments and the public interests of the Shia community, his approach led to a form of ijtihad that sought to maintain a balance between literalist rigidity and excessive precaution; consequently, in some cases, he reached fatwas contrary to the well-known opinion while continuing to remain within the Usuli framework.

Mohammad Fazel Lankarani issued numerous fatwas concerning [[medical jurisprudence|new issues in medicine and medical treatment]]. In his view, [[guardianship of the jurist]] is not a subsidiary issue, and rational arguments may also be advanced to establish it. He regarded compliance with the laws enacted by the legal institutions of the Islamic Republic, as well as [[participation in elections]], as religiously obligatory, and opposed the [[implementation of hudud|suspension of hudud punishments]]. According to his fatwa, non-polytheistic People of the Book are ritually pure, and it is permissible to share food with them unless the prohibition or impurity of the food is established. In his view, [[nature of money|money]] is fungible and possesses nominal value; its rational purchase and sale are permissible, and [[inflation]] and the decline in the value of money do not affect the amount of a debt. He also regarded [[sighting the crescent with optical instruments|the sighting of the lunar crescent with optical instruments]] as valid.

== Jurisprudential Biography ==

Mohammad Fazel Movahedi Lankarani (1310–1386 SH), commonly known as Mohammad Fazel Lankarani, was, after [[Sayyid Mohammad Reza Golpaygani|Mohammad Reza Golpaygani]] and [[Mohammad Ali Araki]], among the seven maraji introduced by the [[Society of Seminary Teachers of Qom]] and had many followers. He studied at the [[Qom Seminary]] under teachers such as [[Morteza Haeri Yazdi]], [[Sayyid Hossein Tabatabaei Boroujerdi|Sayyid Hossein Boroujerdi]], [[Sayyid Ruhollah Musavi Khomeini|Sayyid Ruhollah Khomeini]], and [[Sayyid Mohammad Hossein Tabatabaei]]. During fifty years of teaching, he was one of the prominent instructors of the intermediate level—including teaching “Kifayat al-Usul”—and advanced courses in jurisprudence and principles of jurisprudence. Some contemporary jurists, including his son [[Mohammad Javad Fazel]] and [[Abu al-Qasim Alidoust]], were among his students.<ref>Movahed Fatemi, Sinai of Jurisprudence, pp. 41 and 69; Hawza Journal, “Interview with Ayatollah Mohammad Fazel Lankarani,” no. 32, p. 129 and nos. 43 and 44, p. 139.</ref> Lankarani served for ten years as president of the Supreme Council for the Administration of the Qom Seminary, and in 1376 SH, with the aim of training jurists and mujtahids familiar with the [[role of time and place in ijtihad|requirements of the time]], he established the [[Jurisprudential Center of the Immaculate Imams (a)]] in Qom, which today operates in Iran and abroad under the direction of Mohammad Javad Fazel Lankarani.<ref>Movahed Fatemi, Sinai of Jurisprudence, p. 443.</ref>
=== Jurisprudential and Usuli Works ===

“Tafsil al-Shari‘a fi Sharh Tahrir al-Wasila,” one of his most important jurisprudential works, is an extensive commentary on Imam Khomeini’s “[[Tahrir al-Wasila (book)|Tahrir al-Wasila]]” in twenty-eight volumes. “Kitab al-Tahara” (lecture notes from Imam Khomeini’s advanced course in jurisprudence), “Nihayat al-Taqrir fi Mabahith al-Salat” (lecture notes from Hossein Boroujerdi’s advanced course in jurisprudence), “al-Qawa‘id al-Fiqhiyya,” “Risala fi al-Khums,” and “Thalath Rasa’il” (the rule of negation of hardship, dawn on moonlit nights, and the waiting period of a woman whose uterus has been removed) are among his published jurisprudential works. Several series of lecture notes from his courses in principles of jurisprudence have also been published.

To elucidate Fazel Lankarani’s views, a conference entitled “An Examination of the Method of Inference and Jurisprudential Innovations of Grand Ayatollah Fazel Lankarani” was held by the Islamic Propagation Office of the Qom Seminary in Qom on 20 Khordad 1388 SH.<ref>Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” p. 142.</ref>

== Foundations of Ijtihad and Jurisprudential Method ==

=== A Jurist of the Qom School ===

Fazel Lankarani was regarded as a jurist trained in the [[Qom School of Jurisprudence]]. [[Sayyid Hashem Hosseini Bushehri]] considers him, after Sayyid Hossein Boroujerdi and Sayyid Ruhollah Khomeini, a prominent representative of the Qom school.<ref>Hosseini Bushehri, “The Usuli Views and Theories of Grand Ayatollah Fazel Lankarani,” p. 37.</ref> Reza Ostadi has described Mohammad Fazel Lankarani’s teaching style as similar to the method of his teacher, Boroujerdi.<ref>The Virtuous Marja, p. 104.</ref> According to Morteza Moqtadaei, he regarded Imam Khomeini’s foundations as superior to and stronger than those of prominent earlier jurists, such as Shaykh Ansari, the author of Jawahir, Muhaqqiq, and Allama. According to Mohammad Javad Fazel Lankarani, he also possessed complete mastery of the jurisprudential, Usuli, and biographical-evaluation views of [[Sayyid Abu al-Qasim Khoei]] and took into account the combined foundations of the two schools of Qom ([[aggregation of presumptions]]) and [[Najaf School of Jurisprudence|Najaf]] (rational discussions).<ref>Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” pp. 148-151.</ref>

=== Moderation in Ijtihad and Attention to the Objectives of Sharia ===

According to Abu al-Qasim Alidoust, although Mohammad Fazel Lankarani belonged to the school of the aggregation and accumulation of presumptions, moderation in ijtihad was one of his prominent characteristics. In addition to adhering to jurisprudential and Usuli foundations, he incorporated the [[spirit of Sharia]], overarching objectives, and emerging events into the process of inference; consequently, he did not become entangled in excessive precautions and, instead of rigid adherence to words and reliance on the chains of transmission of narrations, brought together [[reason]], [[customary understanding]], [[practice of rational people|the practices of rational people]], and Usuli principles. He regarded [[confidence in issuance]] as more important than the reliability of the narrator, and semantic evidence and the jurist’s personal conviction played a central role for him. He understood a narration not in isolation but within a network of evidence and authoritative presumptions, and in issuing fatwas he also considered the public interests of Shiism and avoided anything that might cause [[disrepute to the denomination]]. Moreover, while drawing on the heritage of Najaf and possessing full knowledge of the works and foundations of Sayyid Abu al-Qasim Khoei, he paid serious attention to the received principles and the reputation of the early jurists, and in cases of conflicting evidence, he regarded [[juristic reputation]] as the first criterion of preference.<ref>Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” pp. 154-162; Alidoust, “Grand Ayatollah Fazel Lankarani: An Ascetic, Eminent, and Instructive Jurist for Future Generations,” Ofogh-e Hawza, special issue 825, p. 5.</ref>

=== The Foundation of Reason-Compatible Textualism ===

According to [[Ahmad Moballeghi]], Mohammad Fazel Lankarani adopted a textualist approach compatible with reason. Contrary to the common approach, which promptly completes a ruling upon encountering an unrestricted or general expression, he believed that unrestricted expressions are not authoritative in subjects involving particular circumstances; in deriving unrestrictedness, he did not limit himself to prima facie indicators and viewed the range of relevant indicators more broadly. Even if all the conditions for establishing unrestrictedness were present, he would not accept it if customary understanding did not perceive the expression as unrestricted. His criterion for evaluating unrestrictedness was customary understanding, not merely the perspective of a mujtahid, and he believed that the Lawgiver must explicitly state the ruling in such cases. This perspective also led him to consider the developments of each era in the process of inference.

In interpreting the vocabulary of narrations, Lankarani likewise did not restrict himself to technical jurisprudential meanings but went beyond them. A clear example is his interpretation of “negation of objection” as negating a declaratory ruling. He envisaged three possible relationships between the text of a narration and other sources: if the text stands against the apparent meaning of the Quran, the apparent meaning of the Quran must be reinterpreted; if it is contrary to a rule, the narration must nevertheless be invoked; but if it is incompatible with a judgment of reason, the narration must be interpreted in a manner that does not conflict with reason.<ref>Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” pp. 143 and 144.</ref>

== Jurisprudence of Politics and Government ==

=== Guardianship of the Jurist and Legislative Institutions ===

In the field of [[political jurisprudence|jurisprudence of politics and government]], Mohammad Fazel Lankarani did not regard the theory of [[guardianship of the jurist]] as an ordinary jurisprudential issue based solely on a few narrations such that it could be weakened by challenging their chains of transmission or implications. In his view, [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] established the guardianship of the jurist through “reason and rational self-evidence”; for Islam has laws and directives governing all dimensions of life, including acts of worship and social affairs, and this comprehensiveness requires the guardianship and administration of a jurist.<ref>Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” pp. 148-151.</ref> According to his fatwa, obedience to the ruling of the guardian jurist is religiously obligatory for everyone, including those who do not follow him as their marja, and [[obedience to law|compliance with the laws]] enacted by the Islamic Consultative Assembly, the [[Guardian Council]], or the [[Expediency Discernment Council]] is likewise religiously obligatory for everyone.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 225 and 226.</ref>
=== The Individual Obligation to Participate in Elections ===

Fazel Lankarani regarded [[participation in elections]] within the system of the Islamic Republic as an individual obligation and maintained that women, even if prohibited by their husbands, do not require [[husband’s permission|their husbands’ permission]] to leave the home and participate in elections.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 431 and 434.</ref>
=== Implementation of Hudud during the Occultation ===

Mohammad Fazel Lankarani opposed the theory of suspending hudud punishments or converting them into ta‘zir punishments and regarded the [[implementation of hudud|implementation of hudud during the Occultation]] as permissible and necessary. In his view, the implementation of hudud is not merely permissible as part of hisbi affairs but is also an instance of the [[absolute guardianship of the jurist]].<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 497 and vol. 2, p. 67; see: Fazel Lankarani, Islamic Criminal Procedure, vol. 1, introduction.</ref>

In agreement with Imam Khomeini’s view, Mohammad Fazel Lankarani affirmed the applicability of the [[apostasy|ruling on apostasy]] and the forfeiture of the apostate’s protection of life. On various occasions, he defended Imam Khomeini’s fatwa concerning the execution of Salman Rushdie, the author of The Satanic Verses, and regarded it as jurisprudentially substantiated.<ref>The jurisprudential foundations of this ruling are presented in the book “Responses to Doubts Concerning Apostasy” by Mohammad Javad Fazel Lankarani.</ref>

=== Population Control and Family Planning ===

In Fazel Lankarani’s thought, an increase in the Muslim population is desirable, but [[population control]] is also permissible under particular circumstances. The government may encourage people to undertake [[family planning]], but compulsion is permissible only by order of the guardian of affairs.<ref>Fazel Lankarani, Rulings for Physicians and Patients, p. 77.</ref> Blocking the reproductive ducts of men and women and [[sterilization|becoming sterile]] constitute a defect and are impermissible, while other lawful methods, such as coitus interruptus, are available for population control or the prevention of pregnancy. The temporary blocking of the fallopian tubes is permissible provided that the rules concerning mahram and non-mahram persons are observed.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 457.</ref>

== Economic and Financial Jurisprudence ==

===The Nature of Money, Its Purchase and Sale, and Inflation===

According to Fazel Lankarani, the [[nature of money]] is not that of a commodity measured by volume or weight; rather, it is fungible, but its notional value is independent of its purchasing power. Therefore, the amount of a debt does not change with the passage of time and [[inflation]]. Furthermore, the [[purchase and sale of banknotes|purchase and sale of money and banknotes]], whether for immediate or deferred payment, is permissible when the transaction is rational and does not constitute transactional riba.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 252-255 and 288.</ref>

According to Fazel Lankarani, money in the form of banknotes may serve as the capital of a [[mudaraba]].<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 252-255 and 288.</ref> He did not regard it as necessary to determine the mudaraba profit as a fractional share or specified percentage, but the amount of profit must be an amount ordinarily obtained from that mudaraba.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 290.</ref>

===Rulings on Banks and Financial Institutions===

Fazel Lankarani regarded the receipt of [[bank prizes|prizes paid by banks]] to encourage account holders as unobjectionable, and considered banks and interest-free loan funds authorized to use savings with the consent of the owners of the funds and through Islamic contracts.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 274.</ref>

According to Fazel Lankarani, the collection of [[penalties for late payment of loan installments|compensation for delayed payment of a debt]] by a bank or non-bank institution is absolutely impermissible, even if characterized as compensation for the loss and harm caused by delayed payment of the debt. However, if it is stipulated within a binding contract, it is unobjectionable provided that its limits are specified and within the capacity of the party concerned.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 306 and 307.</ref>

===Employer Liability for Accidents===

According to Fazel Lankarani, an employer is not liable to pay blood money for injuries sustained by a worker in the workplace if the employer did not initially stipulate liability for such cases with the worker; however, if liability was stipulated, the accident is attributable to the employer, and the employer is customarily regarded as at fault, the employer must pay the blood money.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 530</ref>

=== Sale of Blood ===
Fazel Lankarani regarded the [[sale of blood]] as permissible, although it is preferable that the payment be received in exchange for relinquishing possession of it.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 241.</ref>

== Jurisprudence of Worship and Individual Conduct ==

===Expansion of the Mataf (Circumambulation from the Second Floor)===

In the jurisprudence of Hajj, Mohammad Fazel Lankarani discussed [[conciliatory taqiyya]] alongside other types of taqiyya in order to preserve the authenticity of Shiism while maintaining Muslim unity.<ref>Fazel Lankarani, Mohammad, “Jurisprudence of Hajj: Conciliatory Taqiyya,” pp. 60 and 61.</ref> In his view, the essential condition for the validity of circumambulation is that it be performed within an area where it may customarily be called “circumambulation of the House.”<ref>Fazel Lankarani, Manasik al-Hajj, p. 151, issue 442.</ref> Regarding the [[expansion of the mataf|performance of circumambulation from the second floor]] of the Sacred Mosque, he states that for those capable of performing circumambulation on the lower level between the House and the Station, circumambulation from the second floor is neither permissible nor valid; however, for persons with an excuse—such as those compelled to perform circumambulation on a litter or in a wheelchair—and when the sanctuary authorities do not in practice permit them to perform circumambulation on the first floor, or main courtyard, circumambulation from the second floor is valid, and they do not need to appoint a proxy.<ref>Fazel Lankarani, “A Jurisprudential Study of Circumambulation from the First Floor of the Sacred Mosque,” p. 63; Akhundi, “Circumambulation from the Second Floor of the Sacred Mosque,” p. 20.</ref>

=== Validity of Sighting the Crescent with Optical Instruments ===

According to Mohammad Fazel Lankarani’s final opinion, there is no difference in [[sighting the crescent with optical instruments|sighting the crescent]] between the aided and unaided eye, and sighting it with a telescope is sufficient, just as sighting it with eyeglasses, binoculars, and similar instruments is sufficient.<ref>[http://www.lankarani.com/far/adv/view.php?ntx=001003 Fazel Lankarani, Response to an Inquiry Concerning Crescent Sighting]</ref>

=== Rulings on Games and Entertainment ===

According to Fazel Lankarani, playing cards and [[chess]] without winning or losing is permissible if they are no longer regarded as gambling instruments,<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 237.</ref> but [[illusionism]], sleight of hand, and [[hypnosis]] are not free from objection and must be avoided.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 239 and 593 and vol. 2, p. 271.</ref> According to his fatwa, the prohibition of [[sculpture]] concerns its role in idolatry, and this prohibition does not entail an obligation to break or destroy statues.<ref>Fazel Lankarani, Tafsil al-Shari‘a: al-Makasib al-Muharrama, pp. 142 and 157.</ref>

=== Ritual Purity of the People of the Book and Their Food ===

Fazel Lankarani issued a fatwa affirming the [[ritual purity of the People of the Book]]—Christians, Jews, and Zoroastrians—provided that they are not polytheists. Therefore, the food of non-polytheistic People of the Book is not impure but is deemed pure and lawful, and eating with them is permissible unless it is known that the food has been prepared from impure meat or rendered impure by wine or the like.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, pp. 42, 359, and 360.</ref>

=== Distinguishing between Simultaneous and Gradual Industrial Slaughter ===

According to Mohammad Fazel Lankarani’s fatwa concerning [[industrial slaughter]], if all animals are slaughtered simultaneously and at once, reciting one basmala is sufficient; however, if the animals are placed on the apparatus gradually and slaughtered at separate times, one recitation is not sufficient, and a separate basmala must be recited each time a new animal is placed on the apparatus.<ref>Fazel Lankarani, Jami‘ al-Masa’il, vol. 1, p. 355.</ref>

== Jurisprudence of Medical Treatment and Emerging Medical Methods ==
Numerous works, fatwas, and responses to inquiries by Mohammad Fazel Lankarani have been published in the field of [[jurisprudence of medical treatment|jurisprudence of medical treatment and medicine]]. In his view, [[autopsy|dissection]] of a Muslim corpse for medical education is prohibited unless it is necessary to preserve Muslim lives and no non-Muslim corpse is available.<ref>Fazel Lankarani, Rulings for Physicians and Patients, p. 34.</ref> Consulting a physician of the opposite sex is permissible only when consulting one of the same sex is impossible or would cause [[intolerable hardship]], delay in treatment, aggravation of the illness, or similar necessities.<ref>Fazel Lankarani, Rulings for Physicians and Patients, p. 46.</ref> He regarded the patient’s permission as necessary for dental procedures and held the physician liable if the procedure was performed without the patient’s permission; similarly, mistakenly extracting a healthy tooth entails blood money.<ref>Fazel Lankarani, Rulings for Physicians and Patients, pp. 65–66.</ref>

According to Fazel Lankarani, [[abortion]] is permissible if the mother’s life is endangered. Moreover, if necessary treatment of the mother results in miscarriage—whether before or after ensoulment—it is permissible.<ref>Fazel Lankarani, Rulings for Physicians and Patients, p. 74.</ref>

=== Artificial Insemination ===

In the discussion of [[artificial insemination]], Fazel Lankarani issued a fatwa that [[artificial insemination after the husband’s death|inseminating a wife with her husband’s sperm after his death]] is impermissible; however, if it is performed, the child is legitimate and inherits from the mother. Transferring an embryo to the uterus of another wife is permissible provided that the lawful preliminaries are observed. Implanting a husband’s and wife’s embryo in the uterus of an unrelated woman is impermissible, but if performed, the child belongs to the owners of the sperm and ovum, while the woman whose uterus bears the child is customarily regarded as the mother. Implanting an embryo in an animal’s uterus is permissible if it causes no adverse consequences. Combining the sperm and ovum of unrelated persons and transferring the resulting embryo to another woman’s uterus is impermissible, and [[surrogacy]] is likewise illegitimate. In certain cases, fertilization using unconventional materials, such as parts of the human body or plant-derived sources, may be permissible, and the child’s lineage is determined according to the origin of the reproductive material and the place in which it develops.<ref>Fazel Lankarani, Rulings for Physicians and Patients, pp. 94–99.</ref>

=== Gender Reassignment ===

According to Fazel Lankarani, [[gender reassignment]] is permissible under certain circumstances. If either spouse undergoes gender reassignment, the marriage contract becomes invalid, and the dower must be paid. If both undergo gender reassignment simultaneously, it is not unlikely that the marital relationship continues, although precaution requires renewal of the marriage contract. A woman legally required to undergo gender reassignment does not need her husband’s permission. If a man undergoes gender reassignment and becomes a woman, guardianship is removed from that person and transferred to the father, paternal grandfather, or guardian of affairs. The familial relationship remains, but its designation changes, and inheritance is calculated according to the new gender, except in the case of parents, for whom the former status is the criterion. Mahram status with one’s mahram relatives is preserved, but the person becomes non-mahram to those who formerly shared the same gender.<ref>Fazel Lankarani, Rulings for Physicians and Patients, pp. 121, 128, and 131.</ref>
=== Organ Transplantation from Living and Deceased Persons===
According to Fazel Lankarani, removing an organ from a living Muslim and transplanting it into another person, as well as the donation or [[sale of body organs]], is unquestionably permissible subject to three conditions: the patient’s survival depends on the transplant, an organ from a non-Muslim is unavailable, and the procedure poses no danger to the donor’s life or intolerable risk.<ref>Fazel Lankarani, Rulings for Physicians and Patients, pp. 157 and 158.</ref>

If preserving a Muslim’s life depends on the [[organ transplantation|transplantation of an organ]] from the body of a deceased Muslim and no substitute from a non-Muslim is available, removing and transplanting the organ is permissible, and a bequest concerning it is also valid; however, as a matter of precaution, its blood money must be paid and expended for the deceased. If the deceased made no bequest concerning organ donation, the preservation of the Muslim’s life is the criterion, and the consent or lack of consent of the deceased’s heirs has no effect on this ruling.<ref>Fazel Lankarani, Rulings for Physicians and Patients, p. 159.</ref>

== Footnotes ==
{{Footnotes}}

== Resources ==
{{References}}
* Abedinpour, Ehsan and Mohammad Ali Qasemi, An Examination of the Role of Permission in Medical Jurisprudence, Qom, Jurisprudential Center of the Immaculate Imams (a), first edition, 1401 SH.
* Akhundi, Mostafa, “Circumambulation from the Second Floor of the Sacred Mosque,” Miqat-e Hajj, no. 72, summer 1389 SH.
* Alidoust, Abu al-Qasim, “Grand Ayatollah Fazel Lankarani: An Ascetic, Eminent, and Instructive Jurist for Future Generations,” Ofogh-e Hawza, special issue 825, Monday, 19 Azar 1403 SH.
* Fazel Lankarani, Mohammad, “A Jurisprudential Study of Circumambulation from the First Floor of the Sacred Mosque,” Miqat-e Hajj, no. 48, summer 1383 SH.
* Fazel Lankarani, Mohammad, Islamic Criminal Procedure, Qom, Jurisprudential Center of the Immaculate Imams (a), 1390 SH / 1432 AH.
* Fazel Lankarani, Mohammad, Jami‘ al-Masa’il, Qom, Amir, 1383 SH.
* Fazel Lankarani, Mohammad, Manasik al-Hajj, Qom, Jurisprudential Center of the Immaculate Imams, 1423 AH.
* Fazel Lankarani, Mohammad, Response to an Inquiry Concerning Crescent Sighting, official website of Ayatollah Fazel Lankarani.
* Fazel Lankarani, Mohammad, Rulings for Physicians and Patients, compiled by Gholam-Hassan Khodadadi, Qom, Jurisprudential Center of the Immaculate Imams (a), first edition, 1385 SH.
* Fazel Lankarani, Mohammad, Tafsil al-Shari‘a: al-Makasib al-Muharrama, Qom, Jurisprudential Center of the Immaculate Imams (a), first edition, 1385 SH.
* Fazel Lankarani, Mohammad Javad, Responses to Doubts Concerning Apostasy, Qom, Jurisprudential Center of the Immaculate Imams (a), 1400 SH.
* Fiqh Journal, “The Methodology of Grand Ayatollah Fazel Lankarani in Jurisprudence and Principles of Jurisprudence,” Fiqh, no. 58, winter 1387 SH.
* Hawza Journal, “Interview with Ayatollah Mohammad Fazel Lankarani,” no. 32, Khordad and Tir 1368 SH.
* Hawza Journal, “Interview with Ayatollah Mohammad Fazel Lankarani,” nos. 43 and 44, Ordibehesht–Tir 1370 SH.
* Hosseini Bushehri, Sayyid Hashem, “The Usuli Views and Theories of Grand Ayatollah Fazel Lankarani,” Research and Hawza, no. 10, summer 1381 SH.
* Movahed Fatemi, Hassan, Sinai of Jurisprudence, Qom, Amir al-Ilm, first edition, 1387 SH.
{{End}}

{{Contemporary Jurisprudence Scholars}}
[[Category:Biographical Articles]]
[[fa:محمد فاضل لنکرانی]]

Tobacco smoking

2026-09-18T17:46:38Z

Enadmin: Created page with "{{Author |author = Hamza Ahmadi |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' '''Tobacco smoking''' is the inhalation of smoke produced by burning tobacco, the widespread use of which among Muslims led jurists to examine its religious ruling. Some jurists have issued fatwas prohibiting it, others have ruled it permissible, and still others have suspended judgment. The no-harm rule is the most important argument invoke..."

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* '''Abstract'''

'''Tobacco smoking''' is the inhalation of smoke produced by burning tobacco, the widespread use of which among Muslims led jurists to examine its religious ruling. Some jurists have issued fatwas prohibiting it, others have ruled it permissible, and still others have suspended judgment.

The [[no-harm rule]] is the most important argument invoked by proponents of the prohibition of tobacco smoking. They maintain that tobacco smoking causes considerable harm to health and that, according to the no-harm rule, anything harmful to health is prohibited. This argument has been criticized by proponents of the permissibility of tobacco smoking, who have stated that the concept of harm is not fixed but depends on individuals’ different constitutions, temporal and spatial circumstances, and the amount consumed. According to these jurists, tobacco smoking is harmful only to certain individuals and is prohibited only for them; therefore, no general ruling can be issued declaring it prohibited for everyone.

Muslim jurists believe that no explicit text has been transmitted concerning the religious ruling on tobacco smoking; nevertheless, some of them have exercised precaution, while others, invoking the principle of exemption and the presumption of permissibility, have issued fatwas permitting it.

==Explanation of the Issue and Its Significance==
Tobacco smoking, or smoking tobacco, is the inhalation of smoke produced by burning tobacco with devices such as cigarettes, hookahs, cigarette holders, pipes, or similar implements.<ref>Tayyar et al., Simplified Jurisprudence, vol. 13, p. 44; Atiq, Jurisprudential Rulings Relating to Smoking, p. 19.</ref> These terms have been discussed in the jurisprudential chapters on prayer and fasting.<ref>Collective of Authors, Persian Jurisprudential Dictionary, vol. 3, p. 586.</ref> Muslim jurists have independently discussed the religious ruling on its purchase and sale.<ref>For examples, see Hurr al-Amili, Tusi Benefits, p. 224; Tayyar et al., Simplified Jurisprudence, vol. 13, p. 44; Atiq, Jurisprudential Rulings Relating to Smoking, p. 19; Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, vol. 10, pp. 109-110.</ref> Tobacco smoking, in terms of whether or not it is harmful, has likewise been discussed as an independent issue both in the past and in contemporary jurisprudence.<ref>For an example, see Khoei, Comprehensive Rulings on Medical Issues, pp. 360-361.</ref>
===History and Context of the Emergence of the Discussion===
According to Hurr al-Amili and some others, tobacco was introduced into Islamic countries by European unbelievers and polytheists.<ref>For examples, see Hurr al-Amili, Tusi Benefits, p. 224; Abd al-Salam al-Tawila, Jurisprudence of Beverages and Their Prescribed Punishment, p. 436.</ref> The introduction of tobacco into Islamic countries has been dated to the final years of the tenth century AH.<ref>Abd al-Salam al-Tawila, Jurisprudence of Beverages and Their Prescribed Punishment, p. 436.</ref> Accordingly, it has been reported that tobacco was first introduced into the Ottoman Empire (present-day Turkey) in 1605 CE.<ref>Atiq, Jurisprudential Rulings Relating to Smoking, pp. 24-25.</ref> According to some reports, tobacco entered Iran in the early eleventh century AH.<ref>Fathallahpour, “Tobacco,” p. 389.</ref> Following the spread of tobacco in Islamic countries and the prevalence of its use among Muslims, jurists began examining its religious ruling.<ref>Rahimi, “An Examination of Jurisprudential Verses Concerning the Permissibility or Prohibition of Tobacco Smoking from the Perspective of the Two Islamic Schools,” p. 70.</ref> One group declared it permissible, while another declared it prohibited.<ref>Rahimi, “An Examination of Jurisprudential Verses Concerning the Permissibility or Prohibition of Tobacco Smoking from the Perspective of the Two Islamic Schools,” p. 70.</ref>
===The Usuli-Akhbari Dispute over the Religious Ruling on Tobacco Smoking===
Due to their differing principles regarding prohibitive doubts concerning legal rulings, Usulis and Akhbaris also disagree over the religious ruling on tobacco smoking, to the extent that, during one period, the prohibition of tobacco use and smoking was regarded as a symbol of Akhbarism, while its permissibility was considered a symbol of Usuli thought.<ref>Adalat-Nejad, “Tobacco: Jurisprudential Discussions,” p. 391.</ref> According to the Usulis, the principle of exemption applies to prohibitive doubts concerning legal rulings; that is, where, first, a mujtahid doubts the existence of an obligation in a particular issue; second, the doubt originates from the absence of an explicit text on that issue, the ambiguity of a text, or a conflict between texts; and third, the matter revolves between a general ruling of prohibition and non-obligation.<ref>Vahid Behbahani, Usuli Treatises, p. 349; Shaykh Ansari, Unique Principles, vol. 2, pp. 18-20.</ref> Under these circumstances, the Akhbaris have advocated suspension of judgment or precaution.<ref>Vahid Behbahani, Usuli Treatises, p. 349; Shaykh Ansari, Unique Principles, vol. 2, pp. 18-20.</ref>

Accordingly, since it is maintained that no explicit text or narration has been transmitted concerning tobacco smoking,<ref>Shaykh Ansari, Unique Principles, vol. 2, p. 18.</ref> there is doubt and uncertainty as to whether its general ruling is prohibition, permissibility, or reprehensibility. In accordance with their own principles, some Usulis have applied the principle of exemption and regarded it as permissible,<ref>For examples, see Jazaeri, Numani Lights, vol. 4, p. 44; Shaykh Ansari, Unique Principles, vol. 2, p. 19.</ref> whereas the Akhbaris have adopted suspension of judgment and precaution regarding this issue.<ref>For an example, see Hurr al-Amili, Tusi Benefits, p. 226.</ref> In Benefit 51 of the book Tusi Benefits, Shaykh Hurr al-Amili discusses the ruling on tobacco smoking.<ref>Hurr al-Amili, Tusi Benefits, p. 224.</ref> In this section, he refers to twelve arguments advanced by Shia jurists to establish the prohibition of tobacco smoking.<ref>Hurr al-Amili, Tusi Benefits, pp. 224-226.</ref>

==The Theory of the Prohibition of Tobacco Smoking==
A group of Muslim jurists have declared tobacco smoking prohibited and have invoked the following arguments to establish its prohibition:
===The Harmfulness of Tobacco to the Body===
Citing the [[no-harm rule]], many Muslim jurists have regarded tobacco smoking as prohibited only when it causes significant and considerable harm to the body.<ref>Usuli and Bani-Hashemi Khomeini, Manual of Islamic Rulings (Religious Authorities), vol. 2, p. 922.</ref> These jurists do not, of course, regard tobacco as inherently prohibited; rather, they issue a fatwa prohibiting its use insofar as it may cause considerable harm to the body and once its harmfulness has been established. For example, according to the fatwa of [[Sayyid Ali al-Husayni al-Sistani]], the use of narcotics, cigarettes, and hookahs is prohibited when it entails extraordinary and serious harm.<ref>Sistani, [https://www.sistani.org/persian/book/26576/5984/ “Comprehensive Manual of Islamic Rulings”], official website of the Office of the Grand Religious Authority Sayyid Ali al-Husayni al-Sistani.</ref>

Some jurists have issued an unconditional fatwa prohibiting it.<ref>Hurr al-Amili, Tusi Benefits, p. 224; Aliyan-Nejadi, Cigarettes: The Deadly Phenomenon of Our Age, p. 6.</ref> For example, Hurr al-Amili presents the reasoning of some of these jurists as follows: all those accustomed to tobacco smoking, as well as physicians, have reported the harms arising from it, and according to a narration from Imam al-Sadiq (a),<ref>Kulayni, al-Kafi, 1407 AH, vol. 6, p. 242.</ref> the harmfulness of something is regarded as the cause of its prohibition; therefore, tobacco smoking is prohibited.<ref>Hurr al-Amili, Tusi Benefits, 1423 AH, p. 224.</ref> Among contemporary Shia jurists of the fifteenth century AH, [[Makarem Shirazi]] has likewise issued an unconditional fatwa prohibiting tobacco smoking on the basis of the no-harm rule.<ref>Aliyan-Nejadi, Cigarettes: The Deadly Phenomenon of Our Age, p. 13.</ref> He states that physicians and experts unanimously agree that tobacco and cigarette smoking cause serious and life-threatening harm to the body,<ref>Aliyan-Nejadi, Cigarettes: The Deadly Phenomenon of Our Age, p. 20.</ref> and that they therefore fall under the ruling of prohibition pursuant to the no-harm rule.<ref>Aliyan-Nejadi, Cigarettes: The Deadly Phenomenon of Our Age, p. 13.</ref>

A group of Hanafi, Maliki, Shafi‘i, and Hanbali jurists, as well as Abd al-Aziz ibn Baz (d. 1420 AH), the Saudi Wahhabi mufti, have also issued fatwas prohibiting tobacco smoking on the basis of the no-harm rule.<ref>Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, vol. 10, p. 102; Jurisprudential Encyclopedia, [https://dorar.net/feqhia/3401/المطلب-الأول-حكم-شرب-التبغ-(الدخان) “The Ruling on Smoking Tobacco”], al-Durar al-Saniyya website.</ref> According to these jurists, specialists report that tobacco smoking causes serious and considerable harm to the body, and, pursuant to this rule, whatever harms the body is prohibited.<ref>Jurisprudential Encyclopedia, [https://dorar.net/feqhia/3401/المطلب-الأول-حكم-شرب-التبغ-(الدخان) “The Ruling on Smoking Tobacco”], al-Durar al-Saniyya website.</ref>

===Tobacco as One of the Impure Things and a Cause of Self-Destruction===
Citing [[Verse 157 of Sura al-A‘raf|the verse “and He prohibits for them impure things”]], some scholars have regarded tobacco as an instance of these impure things and have consequently ruled it prohibited.<ref>Hurr al-Amili, Tusi Benefits, p. 224.</ref> It has also been stated that because tobacco smoking causes numerous diseases, it constitutes a form of casting oneself into destruction, which God has prohibited in [[Verse 195 of Sura al-Baqara|the verse concerning destruction]].<ref>Tayyar et al., Simplified Jurisprudence, vol. 13, p. 44; Atiq, Jurisprudential Rulings Relating to Smoking, p. 54.</ref>
===Tobacco Smoking as Contrary to Precaution===
Shia Akhbaris and some Sunni jurists, such as Muhammad ibn Ahmad Illish (d. 1299 AH), a Maliki jurist, have invoked the principle of precaution to establish the prohibition of tobacco smoking.<ref>Hurr al-Amili, Tusi Benefits, p. 226; Illish, Fath al-Ali al-Malik fi al-Fatwa ala Madhhab al-Imam Malik, vol. 1, p. 122.</ref> According to this principle, certain matters are clearly prohibited and must be avoided, others are clearly obligatory and must be performed, while the obligation or prohibition of still others is unclear and subject to doubt; judgment regarding such matters must therefore be suspended to avoid falling into what God has prohibited.<ref>Hurr al-Amili, Tusi Benefits, p. 226; Illish, Fath al-Ali al-Malik fi al-Fatwa ala Madhhab al-Imam Malik, vol. 1, p. 122.</ref> Tobacco smoking is among the matters subject to doubt, and failure to suspend judgment concerning it results in falling into divine prohibitions and destruction.<ref>Hurr al-Amili, Tusi Benefits, p. 226; Illish, Fath al-Ali al-Malik fi al-Fatwa ala Madhhab al-Imam Malik, vol. 1, p. 122.</ref>

===Expenditure on Tobacco as Extravagance and Waste of Property===
Spending money on tobacco smoking constitutes extravagance and waste of property, because it not only provides no benefit to the body but is also harmful; and according to [[Verse 43 of Sura Ghafir]] and certain narrations,<ref>Kulayni, al-Kafi, vol. 1, p. 60.</ref> extravagance and waste of property are prohibited.<ref>Hurr al-Amili, Tusi Benefits, p. 225.</ref>

==The Permissibility of Tobacco Smoking==
Some jurists have issued fatwas permitting tobacco smoking and have invoked the following arguments:
===Disputing the Harmfulness of Tobacco to All Bodies===
According to [[Sayyid Abu al-Qasim al-Khoei]], the concept of “harm” is not an absolute and fixed concept to which the ruling of prohibition is intrinsic and inseparably attached; rather, it is an unfixed and relative concept that varies according to individuals and their different constitutions, the amount of the substance said to be harmful, and different times and places.<ref>Tohidi, Misbah al-Fiqaha (Lecture Notes from Ayatollah Khoei’s Advanced Course on Transactions), vol. 1, pp. 77-78.</ref> Tobacco has likewise been regarded as belonging to this category. Some jurists have stated that its harmfulness is not fixed and that it may be harmful only to some bodies but not to others; it therefore cannot be subsumed under a general rule and declared prohibited in all cases.<ref>Jazaeri, Numani Lights, vol. 4, p. 44.</ref>
===Tobacco Is Wholesome and Lawful===
Sayyid Nimat Allah Jazaeri maintains that everything on earth and everything that grows from it is lawful, as attested by verses such as [[Verse 29 of Sura al-Baqara|the verse “It is He who created for you all that is on the earth”]] and [[Verse 168 of Sura al-Baqara|the verse “Eat of what is on the earth, lawful and wholesome”]], unless specific evidence establishes its prohibition.<ref>Jazaeri, Numani Lights, vol. 4, p. 44.</ref> According to him, tobacco is likewise one of the things that grow from the earth, like other plants, and no religious text or specific evidence has been transmitted prohibiting its use; therefore, it is lawful and wholesome.<ref>Jazaeri, Numani Lights, vol. 4, p. 44.</ref>

===The Presumption of Permissibility===
No explicit text has been transmitted prohibiting tobacco smoking, and, according to Sayyid Nimat Allah Jazaeri, all early and later Shia jurists unanimously agree that whatever has not been prohibited by an explicit text is lawful.<ref>Jazaeri, Numani Lights, vol. 4, p. 44.</ref> Therefore, on the basis of the [[presumption of permissibility]], tobacco smoking is permissible.<ref>Jazaeri, Numani Lights, vol. 4, p. 44.</ref>

According to the Kuwaiti Jurisprudential Encyclopedia, some Sunni jurists, after challenging the arguments for prohibition, have regarded tobacco smoking as reprehensible.<ref>Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, vol. 10, p. 107.</ref> According to these jurists, if the harms of tobacco smoking are established, it is prohibited; if they are not established, the presumption is that it is permissible.<ref>Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, vol. 10, p. 107.</ref> Some have also stated that since most Muslims are afflicted by it, it is preferable to issue a fatwa permitting it in order to avert hardship from Muslims, and that a fatwa of permissibility is more consistent with ease and the [[rule of negation of hardship]] than a fatwa of prohibition.<ref>Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, vol. 10, p. 107.</ref>

==The Ruling on Tobacco Smoking for a Fasting Person and in Public Places==
According to most jurists and religious authorities, obligatory precaution requires a fasting person to refrain from the smoke of all forms of tobacco, as well as narcotic substances absorbed through the nose or beneath the tongue.<ref>For examples, see Khoei, Manual of Islamic Rulings, p. 276; Sistani, Manual of Islamic Rulings, p. 335; Usuli and Bani-Hashemi Khomeini, Manual of Islamic Rulings (Religious Authorities), vol. 1, p. 974.</ref>

Jurists have also discussed the ruling on tobacco smoking in public places. According to the fatwas of some of them, smoking cigarettes or hookahs in public places, gatherings, or public transportation is impermissible if it causes considerable harm to others or causes them annoyance, and it is likewise impermissible on another person’s property without that person’s consent.<ref>Sistani, [https://www.sistani.org/persian/book/26576/5984/ “Comprehensive Manual of Islamic Rulings”], official website of the Office of the Grand Religious Authority Sayyid Ali al-Husayni al-Sistani; Makarem Shirazi, New Inquiries, vol. 1, p. 286.</ref> Makarem Shirazi has stated that smoking in government or private offices where it has been prohibited is impermissible and prohibited, even if it does not cause annoyance to others.<ref>Makarem Shirazi, New Inquiries, vol. 1, p. 286.</ref> He has also regarded the advertising of cigarettes as prohibited because they are considered harmful products.<ref>Makarem Shirazi, New Inquiries, vol. 3, p. 601.</ref>

==Footnotes==
{{Footnotes|2}}
==Resources==
{{References|2}}
* Abd al-Salam al-Tawila, Abd al-Wahhab, Jurisprudence of Beverages and Their Prescribed Punishment, Cairo, Dar al-Salam, 1406 AH.
* Adalat-Nejad, Saeed, “Tobacco: Jurisprudential Discussions,” in Encyclopaedia of the World of Islam, vol. 17, Tehran, Encyclopaedia Islamica Foundation, 1391 SH.
* Aliyan-Nejadi, Abu al-Qasim, Cigarettes: The Deadly Phenomenon of Our Age, Qom, Imam Ali ibn Abi Talib School (a), n.d.
* Atiq, Ahmad ibn Muhammad, Jurisprudential Rulings Relating to Smoking, Riyadh, Dar al-Mayman, n.d.
* Collective of Authors, Kuwaiti Jurisprudential Encyclopedia, Kuwait, Ministry of Awqaf and Islamic Affairs, 1414 AH.
* Collective of Authors, Persian Jurisprudential Dictionary, Qom, Institute of the Encyclopaedia of Islamic Jurisprudence, 1387 SH.
* Fathallahpour, Parviz, “Tobacco: Botany, History, and Uses,” in Encyclopaedia of the World of Islam, vol. 17, Tehran, Encyclopaedia Islamica Foundation, 1391 SH.
* Hurr al-Amili, Muhammad ibn Hasan, Tusi Benefits, Qom, Mahallati Publications, 1423 AH.
* Illish, Muhammad ibn Ahmad, Fath al-Ali al-Malik fi al-Fatwa ala Madhhab al-Imam Malik, Beirut, Dar al-Marifa, n.d.
* Jazaeri, Sayyid Nimat Allah, Numani Lights, Beirut, Dar al-Qari, 1429 AH.
* Jurisprudential Encyclopedia, [https://dorar.net/feqhia/3401/المطلب-الأول-حكم-شرب-التبغ-(الدخان) “The Ruling on Smoking Tobacco”], al-Durar al-Saniyya website, accessed: 27 Mehr 1403 AH.
* Karami al-Hanbali, Mari ibn Yusuf, An Investigation of the Proof Concerning the Tobacco Now Smoked by People, Beirut, Dar Ibn Hazm, 1421 AH.
* Khoei, Sayyid Abu al-Qasim and Mirza Javad Tabrizi, Comprehensive Rulings on Medical Issues, Qom, Dar al-Siddiqa al-Shahida (s), first edition, 1432 AH.
* Kulayni, Muhammad ibn Yaqub, al-Kafi, edited by Muhammad Akhundi and Ali Akbar Ghaffari, Tehran, Dar al-Kutub al-Islamiyya, 1407 AH.
* Rahimi, Morteza, “An Examination of Jurisprudential Verses Concerning the Permissibility or Prohibition of Tobacco Smoking from the Perspective of the Two Islamic Schools,” Halal Research Journal, no. 1, Esfand 1397 SH.
* Shaykh Ansari, Morteza, Unique Principles, Qom, Islamic Thought Academy, first edition, 1419 AH.
* Shawkani, Muhammad, Guidance for the Inquirer to the Proofs of the Issues, n.p., n.p., 1348 AH.
* Sistani, Sayyid Ali, [https://www.sistani.org/persian/book/26576/5984/ “Comprehensive Manual of Islamic Rulings”], official website of the Office of the Grand Religious Authority Sayyid Ali al-Husayni al-Sistani, accessed: 28 Mehr 1403 SH.
* Tabatabai Yazdi, Sayyid Muhammad Kazim, al-Urwa al-Wuthqa, Qom, Islamic Publishing Institute, 1417 AH.
* Tayyar, Abdullah ibn Muhammad et al., Simplified Jurisprudence, Riyadh, n.p., 1433 AH.
* Tohidi, Muhammad Ali, Misbah al-Fiqaha (Lecture Notes from Ayatollah Khoei’s Advanced Course on Transactions), Qom, Ismailian, 1417 AH.
* Usuli, Ehsan and Muhammad Hasan Bani-Hashemi Khomeini, Manual of Islamic Rulings (Religious Authorities), Qom, Islamic Propagation Office, n.d.
* Vahid Behbahani, Muhammad Baqir, Usuli Treatises, Qom, Allama Mujaddid Vahid Behbahani Institute, first edition, 1416 AH.
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The Theory of the Elected Islamic State

2026-09-18T17:40:39Z

Enadmin: Created page with "{{Author |author = Alireza Salehi |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} * '''Abstract''' '''The Theory of the Elected Islamic State''' is the title of a broad theory concerning the nature of the state in the era of occultation within Shia political jurisprudence. This theory has been derived from the views of Sayyid Muhammad Baqir al-Sadr, Muhammad Jawad Mughniyyah, [[Muhammad Mahdi Shams al-Din]..."

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* '''Abstract'''

'''The Theory of the Elected Islamic State''' is the title of a broad theory concerning the nature of the state in the era of occultation within [[political jurisprudence|Shia political jurisprudence]]. This theory has been derived from the views of [[Sayyid Muhammad Baqir al-Sadr]], [[Muhammad Jawad Mughniyyah]], [[Muhammad Mahdi Shams al-Din]], and [[Mehdi Ha'iri Yazdi]], and stands in contrast to [[theory of appointed wilayat al-faqih|theories of appointed wilayat al-faqih]] and to views that deny the legitimacy of government in the era of occultation. By accepting the necessity of forming a government during the era of occultation, the Elected Islamic State regards the source of its legitimacy as a combination of divine will and popular will, and entrusts political sovereignty to the people, without granting jurists any privilege or special political guardianship.

In this theory, the condition for a state being Islamic is not that its ruler be a jurist, but rather the government's commitment to implementing Sharia rulings and realizing the goals of religion. The relationship between the people and the government is organized not on the basis of guardianship, but on the basis of [[agency]] or the exercise of the collective sovereignty of the ummah; hence, the desirable Islamic state within this framework is a consultative state based on public vote which, while making use of collective reason and human experience, considers itself bound by the fixed Sharia rulings and the public interest.

By accepting universal values such as the legal equality of citizens, political and social freedoms (within the framework of Sharia), the rule of law, and the accountability of rulers, the Elected Islamic State seeks to create compatibility between Sharia and democracy. This theory is an attempt to present a model of an Islamic state that is both faithful to religion and recognizes the central role of the people in the legitimacy and administration of government.

== Brief Introduction ==
The Elected Islamic State is the title of a broad theory that [[theories of the state in Shia jurisprudence (book)|the book Theories of the State in Shia Jurisprudence]] uses to refer to the views of three Iraqi and Lebanese thinkers on how the state is formed in Shia jurisprudence.<ref>Kadivar, Theories of the State in Shia Jurisprudence, p. 159.</ref> The principles of this theory have been derived from the collective views of [[Sayyid Muhammad Baqir al-Sadr]], [[Muhammad Jawad Mughniyyah]], and [[Muhammad Mahdi Shams al-Din]].<ref>Kadivar, Theories of the State in Shia Jurisprudence, pp. 159-160.</ref> The theory of the Elected Islamic State also has many affinities with the [[theory of the agency of joint personal owners]], formulated by [[Mehdi Ha'iri Yazdi]];<ref>Marandi, "Three Theories on the Basis of the Legitimacy of the State...," pp. 16-19.</ref> for this reason, the title of the Elected Islamic State has also been used to refer to the theory of the agency of joint personal owners.<ref>Kamali Ardakani, The Elected Islamic State and Democracy (A Study of the Views of Shaykh Muhammad Shams al-Din and Dr. Mehdi Ha'iri Yazdi), pp. 157-203. </ref>

The views of [[Sayyid Muhammad Kazem Shariatmadari]], a source of emulation, at the time of the ratification of the Constitution of the Islamic Republic of Iran, have also been classified under this theory.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, pp. 135-137.</ref> Allamah Tabataba'i likewise considers the matter of Islamic government in the era of occultation to be the responsibility of Muslims, who must select the ruler in light of Quranic criteria, and the ruler, in turn, must decide and act in consultation with the Muslims.<ref>Allamah Tabataba'i, al-Mizan, vol. 4, pp. 124-125.</ref> He grants no special right to any group, including the jurists, in the selection of the ruler and the government, and makes no mention of the appointment of a wali-ye faqih;<ref>Rakhshad, In the Presence of Allamah Tabataba'i, p. 186; Pourfard, "The Functions of the Political System of Islam in the Political Thought of Allamah Tabataba'i," pp. 133-135.</ref> for this reason, his theory too may be placed under the Elected Islamic State.

Among the most important features of the theory of the Elected Islamic State is its emphasis on the necessity of forming a government in the era of occultation and the complete entrustment of sovereignty to the people; for this reason, unlike the theories of wilayat al-faqih, it grants no special right to jurists;<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 14; Moradi, "A Critical Examination of the Foundations of the Political Theory of the Guardianship of the Ummah over Itself," p. 167; Khajeh Sarvi, "A Comparative Study of Religious Democracy in the Views of Ayatollah Khamenei and Ayatollah Shams al-Din," p. 33.</ref> just as, regarding the type of relationship between sovereignty and the people, the theory of the agency of joint personal owners transforms it from a relationship of guardianship into a relationship of agency, and gives the people the essential role.<ref>Ha'iri Yazdi, Hikmat va Hukumat, pp. 106-108.</ref> It has also been said of these theories that they seek to create compatibility between the Islamic state and the models of democratic systems.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 14.</ref>

The formation of the theory of the Elected Islamic State has been attributed to the political-social developments of the last few decades of the twentieth century, and especially to the victory of the Islamic Revolution of Iran. Accordingly, it has been said that the confrontation of Islamic countries with waves of demand for democracy, and the non-acceptance of secularist and non-Islamic ideologies in Islamic countries, provided the grounds within the Islamic world for the presentation of models of democracy suited to the internal conditions of Islamic countries. The theory of the Elected Islamic State has also been counted among the theories proposed under these very conditions, and it is mostly regarded as a reaction to the proposal of theories of wilayat al-faqih in the Islamic Republic of Iran.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, pp. 230-235.</ref>

=== Rival and Aligned Theories ===
The theory of the Elected Islamic State bears similarities to two other theories concerning the nature of the state in Shia political jurisprudence. [[The theory of the people's khilafat under the supervision of the marja'iyyat]], the final theory of Sayyid Muhammad Baqir al-Sadr on the nature of the state,<ref>al-Sadr, Khilafat al-Insan, pp. 13-22.</ref> and [[the theory of restricted elective wilayat al-faqih]], which was proposed by certain jurists influential in the victory of the Islamic Revolution of Iran, including [[Hussein-Ali Montazeri]],<ref>Montazeri, Dirasat fi Wilayat al-Faqih, vol. 1, pp. 405, 407, and 489.</ref> [[Morteza Motahhari]],<ref>Motahhari, On the Islamic Republic, p. 80.</ref> and [[Ne'matollah Salehi Najafabadi]]<ref>Salehi Najafabadi, Wilayat-e Faqih, Wilayat-e Salehan, pp. 50-51.</ref> — these two theories bear alignments with the theory of the Elected Islamic State on account of their emphasis on the role of the people in determining the type of government and ruler, their depiction of a divine-popular source for sovereignty, and their limited conception of the powers of the state.<ref>Kadivar, Wilayat-Based Government, p. 135.</ref> Likewise, certain readings of the theories of appointed wilayat al-faqih, which grant the people a more active role and regard them as effective in legitimizing the ruler and the sovereignty, have affinities with the theory of the Elected Islamic State; as, in some of Imam Khomeini's statements, it is pointed out that only the ruling of the elected jurist is valid.<ref>Imam Khomeini, Sahifeh-ye Noor, vol. 21, p. 129.</ref>

By contrast, the theory of the Elected Islamic State was put forward in opposition to two other theories. First, theories that considered the formation of government in the time of occultation illegitimate and held that no specific duty had been outlined for believers in the public sphere, confining the intervention of jurists in this sphere to [[hisbiyyah affairs]].<ref>Kamali Ardakani and Kadivar, "Democracy in the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi ...," p. 62.</ref> And second, [[theory of appointed wilayat al-faqih|the theories of appointed wilayat al-faqih]], which, although like the theory of the Elected Islamic State they consider the formation of government in the era of occultation legitimate and necessary, entrust it solely to the fully qualified jurist and, in the end, confine the people's role to actualizing the guardianship and sovereignty for the jurist and to following the ruling jurist.<ref>Marandi, "Three Theories on the Basis of the Legitimacy of the State...," pp. 14-15.</ref>

== Explanation of the Theory ==
The theory of the Elected Islamic State has pillars, foundations, and principles that distinguish its boundaries from other views on the nature of the state in Shia thought. In this theory, differing views have been presented regarding the source of the legitimacy of the Islamic state, the form of the state, and the manner of the relationship between religion and the state.

=== The Source of the Legitimacy of the Islamic State ===
The theory of the Elected Islamic State holds a dual divine-popular legitimacy for the state. Accordingly, it has been said that an Islamic state based on unmediated divine legitimacy and specific appointment is realizable only during the presence of the Infallibles (peace be upon them), and that in the era of occultation, the management of the political affairs of society has been entrusted to the people.<ref>Shams al-Din, Nizam al-Hukm wa al-Idarah, 1995, pp. 209 and 448; Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, p. 59.</ref> On the other hand, this theory also emphasizes the necessity of observing the fixed Sharia rulings and acting upon the variable rulings on the basis of the interests of citizens; therefore, according to this theory, [[legislation]] on the basis of Islamic Sharia is possible, and everyday matters must conform to Sharia rulings. The theorists of this theory believe that the condition for a state being Islamic is secured solely through the sovereignty and implementation of Sharia rulings and the pursuit of the goals of religion, and not that the Islamic ruler must necessarily be a jurist as well.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, p. 71.</ref> For this reason, this theory emphasizes that jurists, by virtue of their juristic qualification, hold no political privilege over other people and lack religious guardianship in the management of political affairs, and that their duty is confined to deriving Sharia rulings, adjudicating disputes, and calling [people] to what is good.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, pp. 59-70.</ref>
=== The Form of the State ===
The theory of the Elected Islamic State regards the Islamic state as a [[consultative state|consultative state]] according to which the determination of the political destiny of society takes place by recourse to public opinion and on the basis of the interests of society.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., p. 349.</ref> According to the theorists of this theory, the people organize their social affairs on the basis of the interests of time and place. However, in their view, in the management of political affairs by the people, no decisions should be taken that are incompatible with the fixed divine rulings and the interests of Islam and Muslims. To this end, it has been said that, in order to adapt laws and everyday matters to the fixed Sharia rulings, the principle of ijtihad must also be employed.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., pp. 350-354.</ref>

=== Acceptance of Human Values ===
Since the originators of this theory regard the management of society's affairs and of politics as a rational matter, they place great emphasis on benefiting from human experience. Political and social freedoms, on condition of their not conflicting with the fixed Sharia rulings; the political and legal equality of human beings; the equality of all before the law; the principle of the accountability of rulers; the rule of law; and the negation of special rights for men, Muslims, Shias, and jurists in the public sphere are among the universal principles and values accepted by this theory.<ref>Kadivar, Theories of the State in Shia Jurisprudence, pp. 173-174; Kamali Ardakani, The Elected Islamic State and Democracy, pp. 238-239; Marandi, "Three Juristic Theories on the Basis of the Legitimacy of the State...," p. 18; Kamali Ardakani and Kadivar, "Democracy in the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi...," p. 73.</ref>

== Theorists ==
The theory of the Elected Islamic State is a broad theory concerning the nature of the state in Shia jurisprudence, derived from the collective thought of several Iranian, Iraqi, and Lebanese Shia jurists. The thought of Muhammad Mahdi Shams al-Din, Mehdi Ha'iri Yazdi, Muhammad Jawad Mughniyyah, and Sayyid Muhammad Baqir al-Sadr has been influential in the formulation of this theory.

===The Guardianship of the Ummah (The Theory of Muhammad Mahdi Shams al-Din)===
{{Main|theory of the guardianship of the ummah over itself}}
The theory of the guardianship of the ummah over itself, put forward by Shaykh [[Muhammad Mahdi Shams al-Din]], the Lebanese Shia jurist, has, on account of its attempt to create harmony between [[democracy]] and Sharia, been regarded as one of the theories placed under the broad theory of the Elected Islamic State.<ref>Kadivar, Theories of the State in Shia Jurisprudence, p. 174.</ref> It has been said that, in proposing this theory, Shams al-Din pursued two objectives: 1) removing the perpetual conflict between democracy and Sharia, in that Sharia law must be able to adapt itself to the requirements of the time<ref>Tabatabai-Far, "Shia Constitutionalism: A Theory for Discussion," p. 106.</ref> and 2) raising the question of the state beyond the sectarian juristic and theological disputes among Muslims.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 128.</ref>

After establishing the necessity of forming a government in Islamic teachings,<ref>Shams al-Din, Fi al-Ijtima' al-Siyasi al-Islami, p. 74.</ref> Shams al-Din regards the desirable form of government not as wilayi government (wilayat al-faqih), but as a government with the least possible degree of domination and influence, which too would be possible only within the theory of the guardianship of the ummah over itself.<ref>Shams al-Din, Hiwar Hawl al-Shura wa al-Dimuqratiyyah, p. 23; Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, p. 95.</ref> The principal elements of the theory of the guardianship of the ummah over itself are: the ummah (the people), the amirate (the executive branch), the parliament, and the judiciary.<ref>Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, p. 117.</ref>

Shams al-Din regards textually-designated guardianship as exclusive to the Infallibles in the era of [their] presence, and holds that this guardianship is not conditioned upon election; but in the era of occultation, guardianship will be transferred to the ummah, and they will exercise this right of theirs through democratic methods;<ref>Shams al-Din, Nizam al-Hukm wa al-Idarah, 1995, pp. 209 and 448.</ref> therefore, the jurist has the right to participate only insofar as he is a member of the ummah, and possesses no special right.<ref>Moradi, "A Critical Examination of the Foundations of the Political Theory of the Guardianship of the Ummah over Itself," p. 167</ref> In his view, the state must be commensurate with the nature of the society from which it has sprung, must have faith in the reason of the people, and must make use of human experience.<ref>Tabatabai-Far, "Shia Constitutionalism: A Theory for Discussion," p. 107.</ref>

In order to explain the theory of the guardianship of the ummah, Shams al-Din, in addition to the traditional sources of Shia jurisprudence, holds to ijtihad in [[the zone of the vacuum]] on the basis of social realities and [[maqasid al-shari'ah]].<ref>Shams al-Din, al-Ijtihad wa al-Taqlid, pp. 108-113; Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, pp. 79-82.</ref> Relying on numerous juristic and theological foundations such as [[the principle of no guardianship]],<ref>Shams al-Din, Wilayat al-Ummah 'ala Nafsiha, p. 35; Moradi, "A Critical Examination of the Foundations of the Political Theory of the Guardianship of the Ummah over Itself," page 172.</ref> the flexibility of rulings related to non-devotional matters,<ref>Shams al-Din, Fi al-Ijtima' al-Siyasi al-Islami, p. 97.</ref> [[the distinction between legislative rulings and administrative rulings]],<ref>Shams al-Din, Fi al-Ijtima' al-Siyasi al-Islami, p. 87.</ref> the customary nature of power,<ref>Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, pp. 108-114.</ref> and [[the place of shura in government|the necessity of shura]],<ref>Shams al-Din, Lubnan al-Kiyan wa al-Ma'na, pp. 124-126: Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, pp. 114-116.</ref> he has organized the theory of the guardianship of the ummah.

[[Majid Moradi]], a researcher in political jurisprudence, has attributed Shams al-Din's proposal of the theory of the guardianship of the ummah to his recognition of full rights for the citizens subject to a given state, without regard to sectarian, ethnic, and racial distinctions. In his view, this theory provides great capacity for [[religious democracy]]; for it disregards neither the element of the people nor the element of religion, and while it regards guardianship as belonging to the ummah, it preserves a kind of oversight, in the form of judicial guardianship, for the jurist.<ref>Moradi, The Political Thought of Muhammad Mahdi Shams al-Din, p. 14.</ref>

=== The Agency of Joint Personal Owners (The Theory of Mehdi Ha'iri Yazdi) ===
The second theory placed under the general title of the Elected Islamic State is the theory of the agency of joint personal owners, devised by [[Mehdi Ha'iri Yazdi]].<ref>Kadivar, Theories of the State in Shia Jurisprudence, p. 175; Kamali Ardakani, The Elected Islamic State and Democracy, pp. 157-203.</ref> Ha'iri, with a philosophical approach to politics and government, and of course making use of certain juristic and legal-theoretical teachings, sought a new explanation for the legitimacy of government in Islamic thought.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 162.</ref> Critiquing the theological approach to the question of government, and while separating government from prophethood and imamat, he holds that the government of the Prophet of Islam (peace be upon him) and Imam Ali (peace be upon him) in early Islam had a popular origin, and for this reason critiques the theory of wilayat al-faqih and, like Shams al-Din, grants jurists no privilege in political affairs, entrusting the matter of government entirely to the people.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 202.</ref>

The theory of the agency of joint personal owners is built upon three pillars: 1) the joint personal ownership of citizens over the sphere of politics, or in other words, the founding of the fundamental rights of the people upon [[the principle of ownership]]; 2) the agency of the state on behalf of citizens for conducting matters related to the sphere of public and political affairs; and 3) the exclusion of the subject of civil politics from the ambit of universal divine duties and rulings.<ref>Kadivar, Theories of the State in Shia Jurisprudence, pp. 175-186.</ref>

Ha'iri, unlike many Shia jurists who link government to revelation and divine rulings,<ref>Imam Khomeini, Kitab al-Bay', vol. 2, pp. 461-465; Montazeri, Dirasat fi Wilayat al-Faqih, vol. 1, p. 78.</ref> regards government as a natural and empirical matter that has arisen from cooperation and coexistence among human beings. In his view, the relations between citizens and government are a rational and human matter that does not fall within the category of fixed divine rulings,<ref>Ha'iri, Hikmat va Hukumat, pp. 64-65 and 80-81.</ref> and the responsibility for the acts of government rests upon the citizens of society, who must, through effective participation in the affairs of society, prevent improper conduct on the part of their own government.<ref>Ha'iri, Hikmat va Hukumat, pp. 73-74.</ref>

Although Ha'iri regards the legitimacy of government as arising from the vote of the people, he nevertheless emphasizes the observance of the principles of Islamic Sharia in society; thus he recognizes the matter of human rights only to the extent that it does not conflict with Sharia rulings.<ref>Kamali Ardakani, The Elected Islamic State and Democracy, p. 197.</ref>

===Critique of the Absolute Wilayat al-Faqih (The Theory of Muhammad Jawad Mughniyyah)===
[[Muhammad Jawad Mughniyyah]] is a Lebanese Shia jurist who, on the eve of the victory of the Islamic Revolution of Iran, in writing the book al-Khumayni wa al-Dawlah al-Islamiyyah, critiques the theory of [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]] in [[The Guardianship of the Jurist (book)|his book The Guardianship of the Jurist]], which affirmed all the powers of the Infallible for the jurist. Mughniyyah's theory has been placed among the theories of the Elected Islamic State on account of his restricting the guardianship of jurists to the office of issuing fatwas, [[adjudication]], and the administration of [[hisbiyyah affairs]], his non-belief in political guardianship for jurists, and likewise his entrusting the selection of the head of state to the people.<ref>Kadivar, Theories of the State in Shia Jurisprudence, pp. 167-171.</ref>

Mughniyyah regards society's need for government as a natural matter<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, pp. 57-58.</ref> whose headship, in the time of the presence of the Infallible (peace be upon him), will be the responsibility of the Imam,<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, p. 59.</ref> and in the time of occultation, the determination of the head of state has been entrusted to the people. According to him, so long as the head of state governs on the basis of Sharia, obedience to him is obligatory upon all the people.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, pp. 66-68.</ref>

Mughniyyah regards the purpose of forming government as preparing the ground for the implementation of Islamic rulings. In his view, the criterion for a government being Islamic is that Sharia serve as the basis for the implementation of rulings, and not that a jurist take charge of governing.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, p. 71.</ref> By restricting the sphere of the duties of jurists to issuing fatwas, adjudication, and the administration of hisbiyyah affairs, he places them on an equal footing with others in the matter of government, and for this reason believes there is no difference between jurists and the rest of the people in discerning and executing political affairs.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, pp. 59-70.</ref>

Mughniyyah, like the other theorists of the Elected Islamic State, does not confine the duty of the state to the implementation of religious rulings, and believes that in many of the duties of the state no text has been transmitted from the Lawgiver, so that the decision in these matters has been entrusted to rational people, and human experience may be made use of — provided, of course, that it does not result in forbidding what is lawful or permitting what is forbidden.<ref>Mughniyyah, al-Khumayni wa al-Dawlah al-Islamiyyah, pp. 65-66.</ref>

===Consultative Government (The First Theory of Sayyid Muhammad Baqir al-Sadr)===
According to researchers on the thought of [[Sayyid Muhammad Baqir al-Sadr]], he initially outlined no specific form for the state in Islam and only critiqued certain theories on the nature of the state; but after a time, citing verses of the Quran, including the [[shura verses]], he had come to the conclusion that the desirable form of the state in Islam is consultative government.<ref>Ma'muri, The Political Theory of Martyr Sadr, p. 100.</ref> It has been said that he put forward this theory in the book al-Usus al-Islamiyyah.<ref>Fazeli, The Place of the People in the Political-Religious System in the Views of Ayatollah Na'ini and Martyr Sadr, p. 82.</ref> According to [[Mohsen Kadivar]], this first theory of Sayyid Muhammad Baqir al-Sadr on the form of the Islamic state tends toward the theory of the Elected Islamic State.<ref>Kadivar, Theories of the State in Shia Jurisprudence, p. 159.</ref>

Sadr builds his desired consultative government upon several foundations:

* God has sent down a set of laws to order all the spheres of human life — spiritual, intellectual, and social (economic, political, and so on).<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., p. 337.</ref>
* The Islamic state must make these laws the source of its [[legislation]], and the Islamicity of the government will consist in implementing these laws and administering society on their basis.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., p. 343.</ref>
* The duties of the Islamic state consist of: 1) stating Sharia rulings; 2) laying down teachings, or laws, in accordance with Sharia rulings; 3) applying Sharia rulings to the ummah; and 4) adjudicating on the basis of fixed rulings and variable teachings.<ref>al-Husseini, al-Imam al-Sayyid Muhammad Baqir al-Sadr ..., pp. 348-351.</ref>

* Islamic government and the state are divided into two methods, the divine and the consultative; the divine method is realizable only in the time of the presence of the Infallible (peace be upon him), and in the time of occultation, on the basis of [[verse 38 of Surah al-Shura|the shura verse]], one must proceed toward forming a government by the consultative method.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., p. 349.</ref>
* Consultative government is the permissible form of government in the era of occultation, since no text has come down from the Infallible determining the form of government in this era.
* The ummah determines for the government the boundary that has the greatest compatibility with the interest of Islam and Muslims.
* The only necessary conditions for forming a consultative government are non-conflict with the fixed divine rulings and conformity with the interests of Muslims.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., pp. 350-354.</ref>
* Although the statement of the fixed Sharia rulings and adjudication are necessary requirements of the state, the ummah has no right to intervene in them, and these two duties lie within the authority of the fully qualified mujtahids.<ref>al-Husseini, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr ..., pp. 357-359.</ref>

== Sources for Further Study ==
Regarding the broad theory of the Elected Islamic State, in addition to the books of its theorists, a number of books and articles have been written, among the most important of which one may mention [[theories of the state in Shia jurisprudence (book)|the book Theories of the State in Shia Jurisprudence]] by [[Mohsen Kadivar]] and [[The Elected Islamic State and Democracy: A Study of the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi (book)|the book The Elected Islamic State and Democracy: A Study of the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi]] by Ali-Akbar Kamali [Ardakani].

==Footnotes==
{{footnotes}}
==List of Sources==
{{references}}
* Fayyaz, Ali, Nazariyyat al-Sultah fi al-Fikr al-Siyasi al-Shi'i al-Mu'asir, Markaz al-Hadarah li-Tanmiyat al-Fikr al-Islami, Beirut, Lebanon, 2008.
* Fazeli, Mirza Hossein, The Place of the People in the Political-Religious System in the Views of Ayatollah Na'ini and Martyr Sadr, Qom, International Center for Translation and Publication of al-Mustafa, 1390 SH.
* Ha'iri Yazdi, Mehdi, Hikmat va Hukumat, London, Shadi, 1995.
* al-Husseini, Muhammad, al-Imam al-Shahid al-Sayyid Muhammad Baqir al-Sadr: Dirasah fi Sirihi wa Manhajihi, Beirut, Dar al-Farar, 1410 AH.
* Imam Khomeini, Sayyid Ruhollah, Kitab al-Bay', Qom, Ismailian, n.d.
* Imam Khomeini, Sayyid Ruhollah, Sahifeh-ye Noor, Tehran, Institute for the Compilation and Publication of Imam Khomeini's Works, 1366 SH.
* Kadivar, Mohsen, Theories of the State in Shia Jurisprudence, Tehran, Ney, 1383 SH.
* Kamali Ardakani, Ali-Akbar and Mohsen Kadivar, [https://philosophy.mofidu.ac.ir/article%20240130.html "Democracy in the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi and Its Comparison with the Model of Evolutionary Democracy (The Views of Rousseau and Mill)"], Hasti va Shenakht Biannual Journal, no. 44, 1383 SH.
* Kamali Ardakani, Ali-Akbar, The Elected Islamic State and Democracy: A Study of the Views of Shaykh Muhammad Mahdi Shams al-Din and Dr. Mehdi Ha'iri Yazdi, Tehran, Kavir, 1383 SH.
* Khajeh Sarvi, Gholamreza, "A Comparative Study of Religious Democracy in the Views of Ayatollah Khamenei and Ayatollah Shams al-Din," Strategic Political Research Quarterly, year 5, no. 17, 1395 SH.
* Ma'muri, Ali, The Political Theory of Martyr Sadr, Qom, Ishraq, 1379 SH.
* Marandi, Seyyed Mohammad Reza, [https://politicalstudy.ihcs.ac.ir/article%206352%20bc0735bece5e637f591cfed52cdeeeec.pdf "Three Juristic Theories on the Basis of the Legitimacy of the State in Shia Political Jurisprudence"], Contemporary Political Discourses Quarterly, no. 43, 1401 SH.
* Montazeri, Hussein-Ali, Dirasat fi Wilayat al-Faqih wa Fiqh al-Dawlah al-Islamiyyah, Qom, al-Markaz al-'Alami lil-Dirasat, 1409 AH.
* Moradi, Majid, [http://psq.bou.ac.ir/article_65877_293b2972c25ab2d15b54a1d728aa30dd.pdf "A Critical Examination of the Foundations of the Political Theory of the Guardianship of the Ummah over Itself"], Political Science Quarterly, no. 81, 1397 SH.
* Moradi, Majid, The Political Thought of Muhammad Mahdi Shams al-Din, Qom, Bustan-e Ketab, 1401 SH.
* Motahhari, Morteza, On the Islamic Revolution, Tehran, Sadra, 1361 SH.
* Mughniyyah, Muhammad Jawad, al-Khumayni wa al-Dawlah al-Islamiyyah, Beirut, Dar al-'Ilm lil-Malayin, 1358 SH.
* Pourfard, Masoud, [https://kms.bou.ac.ir/wp-content/uploads/2020/10/%DA%A9%D8%A7%D8%B1%D9%88%DB%8C%DA%98%D9%87-%D9%87%D8%A7%DB%8C-%D9%86%D8%B8%D8%A7%D9%85-%D8%B3%DB%8C%D8%A7%D8%B3%DB%8C-%D8%A7%D8%B3%D9%84%D8%A7%D9%85-%D8%AF%D8%B1-%D8%A7%D9%86%D8%AF%DB%8C%D8%B4%D9%87-%D8%B3%DB%8C%D8%A7%D8%B3%DB%8C-%D8%B9%D9%84%D8%A7%D9%85%D9%87-%D8%B7%D8%A8%D8%A7%D8%B7%D8%A8%D8%A7%DB%8C%DB%8C-%D8%B1%D9%87.pdf"The Functions of the Political System of Islam in the Political Thought of Allamah Tabataba'i"], Qabasat Quarterly, no. , 1396 SH.
* Rakhshad, Mohammad Hossein, In the Presence of Allamah Tabataba'i, Qom, Sama Qalam, 1386 SH.
* Salehi Najafabadi, Ne'matollah, Wilayat-e Faqih, Wilayat-e Salehan, Tehran, Rasa, 1362 SH.
* Shams al-Din, Muhammad Mahdi, Fi al-Ijtima' al-Siyasi al-Islami, Beirut, al-Mu'assasah al-Dawliyyah lil-Dirasat wa al-Nashr, 1999.
* Shams al-Din, Muhammad Mahdi, "Hiwar Hawl al-Shura wa al-Dimuqratiyyah," Beirut, Manbar al-Hiwar Journal, no. 34, 1994.
* Shams al-Din, Muhammad Mahdi, al-Ijtihad wa al-Tajdid fi al-Fiqh al-Islami, Beirut, al-Mu'assasah al-Dawliyyah lil-Dirasat wa al-Nashr, 1991.
* Shams al-Din, Muhammad Mahdi, Lubnan al-Kiyan wa al-Ma'na, Beirut, Mu'assasat al-Imam Shams al-Din lil-Hiwar, 2005.
* Shams al-Din, Muhammad Mahdi, Nizam al-Hukm wa al-Idarah fi al-Islam, Beirut, al-Mu'assasah al-Dawliyyah lil-Dirasat wa al-Nashr, 2000.
* Shams al-Din, Muhammad Mahdi, Wilayat al-Ummah 'ala Nafsiha, Beirut, al-Mu'assasah al-Dawliyyah lil-Dirasat wa al-Nashr, 2019.
* Tabataba'i, Sayyid Muhammad Hussein, al-Mizan fi Tafsir al-Qur'an, Beirut, Mu'assasat al-A'lami lil-Matbu'at, 1393 AH.
* Tabatabai-Far, Seyyed Mohsen, [https://kms.bou.ac.ir/wp-content/uploads/2019/12/مشروطه-شیعی؛-نظریه-ای-برای-طرح.pdf "Shia Constitutionalism: A Theory for Discussion"], Political Science Quarterly, no. 48, 1388 SH.
{{End}}

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Elections and Shia Political Jurisprudence: Foundations and Obligations (Book)

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* '''Abstract'''

'''Elections and Shia Political Jurisprudence: Foundations and Obligations''' (انتخابات و فقه سیاسی شیعه؛ مبانی و الزام‌ها) is a book in the field of political jurisprudence, authored by Sayyid Mohammad Sadeq Kazemi, a faculty member at Imam Sadiq (a) University. In this work, considering the close connection between the foundations of political thought and the formation of political structures, the author begins his discussion with the foundations of elections. Given the importance of the foundations of the state's legitimacy in Shia political thought, he examines and analyzes it in a separate chapter. Subsequently, bearing in mind that jurisprudential research means issuing a Sharia ruling for subjects—or issues—he addresses the issues of elections.

Relying on the principle of monotheism (''tawhid'') and the presumption of the absence of guardianship (''istishab 'adam al-wilayah''), the author rejects any domination over human beings without rational or transmitted evidence (''dalil naqli''). He argues that guardianship is granted only to certain individuals due to the judgment of intellect and the necessity of governance, making obedience to them obligatory. He considers social life without a government impossible because some affairs cannot be managed individually and require a ruler. He places the theory of humanity's divine vicegerency (''khilafat Allah'') as the foundation of popular sovereignty and considers political participation an undeniable right, without which a government is not legitimate. He rejects dictatorship and views the people's participation in decision-making as the best way to combat tyranny; elections are a means to preserve people's rights and their participation in decision-making, although their nature is more about shaping decisions. The author considers the duties of the Islamic government to be gaining public satisfaction, social discipline, and guidance. He views the majority vote not as a definitive authoritative proof (''hujjah''), but as a preferable option (''tarjih''), considering it valid only in the absence of other preferrers. He considers the right to be elected negated in affairs pertaining to guardianship (''umur wilayi'') and permissible in non-guardianship affairs (''umur ghayr wilayi''). Of course, only qualified individuals—such as Muslims, Shias, those of integrity, and those possessing religious knowledge—can become candidates, and he does not consider announcing candidacy without the approval of elites to be appropriate. Regarding voting, although the foundation of divine vicegerency might lead to unequal voting rights, the principle of the absence of guardianship creates challenges for the right to vote in guardianship matters, which can be answered by distinguishing between guardianship (''wilayah'') and compliance (''tawalli'').

== Overview and Structure Report ==
The book "Elections and Shia Political Jurisprudence: Foundations and Obligations," authored by Sayyid Mohammad Sadeq Kazemi, a faculty member at Imam Sadiq (a) University, is a work in the field of political jurisprudence that examines the issue of elections from the perspective of Shia political jurisprudence. This work, the first edition of which was published in 2023 (1402 SH) by Imam Sadiq (a) University Press, is organized in 488 pages.

The structure of the book is arranged into three chapters. At the beginning, the table of contents and the introduction are presented, and at the end, the sources and indices are included. The first chapter is dedicated to examining the role of the people and the foundations of the legitimacy of the Islamic government in the thought of contemporary jurists (''fuqaha''). In it, the author introduces and analyzes four categories of theories in this field during the contemporary era; including the appointment theory (''nadhariyyat al-nasb''), the appointment and election theory (''nadhariyyat al-nasb wa al-nakhab''), the assumption of responsibility theory (''nadhariyyat al-tasaddi''), and reactive theories (pp. 33–128). The second chapter addresses the foundations of elections in Shia jurisprudence and discusses various principles and foundations such as the principle of the absence of guardianship, humanity's divine vicegerency, the negation of dictatorship in Islamic thought, the duties of the Islamic government towards the people, the status and effect of the majority vote, the rule of preserving the system (''hifz al-nizam''), etc. (pp. 129–286). In the third chapter, the obligations of elections from the perspective of Shia jurisprudence are examined. Among its topics are the right to be elected, announcing candidacy, the qualification of candidates, voting, campaign requirements, financial issues of campaigns, transparency, and supervision (pp. 287–448).

== Examining the Foundations of Elections from a Jurisprudential Perspective ==

==== The Principle of the Absence of Guardianship ====
Relying on fundamental principles such as monotheism (''tawhid''), the free creation of humans, the presumption of the absence of guardianship (''istishab 'adam al-wilayah''), as well as verses (''ayat'') and narrations (''riwayat'') that restrict guardianship to God, the author rejects any domination and guardianship over human beings, unless rational or transmitted evidence proves otherwise. In his view, standing opposite the "principle of the absence of guardianship" is the judgment of intellect regarding the necessity of the existence of a government and a ruler; therefore, God Almighty, by virtue of this necessity, has excepted certain individuals from the rule of the absence of guardianship and granted them guardianship. Consequently, obedience to these individuals is obligatory and necessary (pp. 129–145).

By resorting to the rational proof regarding the impossibility of realizing social life without the existence of a governmental system, the author deduces the necessity of forming a government. He believes that in social life there are matters that neither possess the capability of individual management nor can be left unmanaged; hence, an individual must be appointed as the "ruler" to manage these affairs (pp. 145–151).

==== Humanity's Divine Vicegerency ====
The author founds the proof of the right to popular sovereignty on the unconditionality (''itlaq'') of the evidences for the theory of humanity's divine vicegerency. The result of this viewpoint is unconditionality in humanity's succession (''khilafah'') from God. This unconditionality, in the realm of creation (''takwin''), means the permissibility of human disposal over the earth to build and develop it, and in the legislative realm (''tashri'''), it means humanity's right to govern the earth. Based on this, human beings possess the right to govern, and this very right is considered the foundation of their political participation. Therefore, in this theory, the right to sovereignty and political participation is counted among the undeniable rights of the people, such that without referring to public votes, no government will possess legitimacy (pp. 152–166).

==== Negation of Dictatorship and Tyranny in Islamic Thought ====
After elucidating the condemnation of tyranny (''jabariyyah'') in Islamic narrations, the author analyzes the concept of "tyrant" (''jabbar'') by referring to its lexical and exegetical meanings, and then presents solutions for the ruler to be freed from this title. These solutions form the foundations of electoral thought in an Islamic government. In his belief, the participation of the people and the involvement of a group of them in the ruler's decision-making removes the description of tyranny from him. Elections are one of the effective tools toward observing the people's rights by the ruler, and simultaneously, involving the people in some of the macro-political decisions. The author clarifies that elections in their current form have more of a "decision-shaping" nature than "consultation" (''mashwarah''); nevertheless, delegating a part of decision-making to the people can be a path to exit despotism (pp. 183–209).

== The Duties of the Islamic Government Towards the People and the Status of the Majority Vote ==
In elucidating the duties of the Islamic government towards the people, the author enumerates three main duties that can be considered the foundation for the formation of the institution of elections: first, gaining public satisfaction; second, disciplining and bringing order to society; and third, education and guidance (pp. 209–228).

In the discussion of the [[majority vote]], the author proposes a theory in which the majority vote is posited not out of independent authority (''hujjiyyah''), but as a criterion and a preferrer (''murajjih''). Based on this viewpoint, whenever an issue has the capability of being referred to public votes, the option that the majority leans towards is recognized as the final choice. The proofs that the proponents of this theory have established to prove it are: the proof of intellect, the [[practice of the rational people]] (''sirat al-'uqala'''), certain narrations, as well as the practical conduct (''sirah'') of the Holy Prophet (s) and Amir al-Mu'minin (a).

However, in his own analysis, the author raises an objection to the rational proof and the practice of the rational people. He states that a government can be designed in such a way that it is realized without resorting to force and without relying on the majority vote, and even under conditions of public silence and apathy. Furthermore, he doubts the claim of the perpetual preference of the majority vote over the minority and considers it unacceptable.

Subsequently, the author engages in a detailed critique of the reliance on the narrations and the conduct of the Prophet (s) and Amir al-Mu'minin (a), and based on this, considers the reasons presented regarding the authority of the majority vote insufficient and unacceptable. Nevertheless, the only case where the majority vote has the capability of being relied upon in his view is the reliance on the [[Maqbula of Umar b. Hanzala]]. In this specific case, if there is a disagreement among experts and other preferrers are unavailable, the majority can be considered as a preferrer, provided that it can rationally discover reality and the more correct opinion. In such an assumption, paying attention to the majority vote is rationally commendable; but beyond this, neither rational proof nor transmitted proof has the capability to prove the authority or general praise of the majority vote (pp. 236–265).

== Obligations of Elections in Shia Jurisprudence ==

=== The Right to Be Elected ===
In elucidating the status of the right to candidacy for assuming positions, the author initially, by citing the principle of the absence of guardianship, states: In the realm of guardianship affairs, the primary principle is the absence of guardianship; hence, the principle is that no individual member of society, initially, has the right to candidacy and entry into such positions; unless valid evidence is established contrary to this principle. Because candidacy for this position is, in fact, a claim to the right to exercise guardianship, and this matter is considered negated by principle. Conversely, in non-guardianship affairs, the principle of the absence of guardianship does not apply; therefore, regarding these affairs, there is no prohibition on the existence of the right to candidacy for the general public, and the principle is its possibility and permissibility (pp. 287–298).

Following this, the author expresses his viewpoint in light of the theory of humanity's divine vicegerency. From his perspective, if we consider the position of divine vicegerency to be acquired, then the unconditionality of vicegerency for all human beings will not be acceptable. In this understanding, the claim that was based on the unconditionality of vicegerency and, consequently, equality in the right to sovereignty, participation, and other political rights for all humans, becomes invalid. Because even though the scope of the vicegerent's authorities and disposals on earth is absolute, the scope of this position's inclusion regarding individuals is limited and only includes those who possess the necessary competencies to bear this position. Therefore, only these individuals possess the right to sovereignty and naturally benefit from rights such as the right to be elected (pp. 287–298). Regarding the right to be elected in guardianship positions, the author believes in limitation, bringing attention to two characteristics (being non-Muslim and non-Shia) and (maleness), and explains the evidence for them. (pp. 298-300)

=== Announcing Candidacy ===
After examining three groups of narrations that have warned against seeking positions and leadership (''riyasah''), the author, by way of summation, states: Considering the spiritual dangers of leadership, such as the possibility of otherworldly punishment and its difficulties, the primary principle for every individual is fleeing from leadership. As a result, one who volunteers to accept this position must possess high certainty regarding the competence of their own soul; whereas such certainty is not only rationally difficult but also contrary to numerous narrations that have placed humans in a position of accusation and suspicion toward themselves. Based on this, a person should not expose themselves to leadership and should not initiate the announcement of candidacy.

He suggests that one must move toward rational methods for legitimizing candidacy, such as the candidate entering the electoral arena upon the insistence of the wise elders of the community, qualified jurists, or religious and political figures. This model must be incorporated into the electoral structure; for example, the process of registering for elections and announcing candidacy should only be possible with the approval of religious and political elites (pp. 300–316).

=== Qualification of Candidates ===
The author introduces "Islam and Shi'ism," "not being a transgressor" (''fasiq''), "knowledge of the divine rulings related to the duties and authorities of the position for which one is a candidate," and the "condition of maleness" as transmitted (''naqli'') characteristics. He subsequently points to rational characteristics, including "competence in administration," "popularity and the influence of one's word among the people," "being free from effective accusations of financial corruption," "non-dependence on the enemy," "alignment with religious values," etc. (pp. 316-322).

=== Voting ===
Regarding the equality or inequality of people's voting rights, in the author's view, although based on the foundation of humanity's divine vicegerency the result is unequal voting rights, it does not prevent the emergence of other foundations. This is because this foundation only proves the voting rights of individuals who have acquired the attribute of humanity's divine vicegerency and does not negate the voting rights of other individuals. Furthermore, the preservation of the system also only proves the right to vote in cases where preserving the system requires it and does not negate other cases. But the problem of the principle of the absence of guardianship remains. The principle of the absence of guardianship eliminates the right to vote in guardianship affairs. The answer to this is distinguishing between guardianship (''wilayah'') and compliance (''tawalli''). In compliance with affairs, the people have the right to vote; but in guardianship, this right does not exist. Based on this, the right to vote is only in these affairs and based on what was stated regarding public satisfaction, with the condition of not contradicting Sharia (pp. 322-328).

=== The Right to Vote in Narrations ===
Kazemi clarifies that the narrations related to consultation and participation refer to differences in the status of consulting and decision-shaping, not differences in the right to vote. In his belief, in many religious texts, equality among the people is assumed; including in the evidences related to allegiance (''bay'ah''), wherein no difference is observed among those giving allegiance. Therefore, the principle is the equality of people's political rights, although in practice certain limits might be considered for it (pp. 328–332).

=== The Obligation of Participating in Elections, Voting for the Most Qualified and the Accepted Qualified ===
From the author's perspective, voting is not a right, but a prescriptive ruling (''hukm taklifi''); therefore, it cannot be waived, and participating in elections is obligatory. If non-participation means declaring a vote (e.g., a negative vote), it might fall outside the scope of abandoning an obligatory act. Nevertheless, in the atmosphere of an Islamic government, this abandonment could fall under a secondary title, such as weakening the Islamic system, and consequently become forbidden (''haram'').

Kazemi considers [[Voting for the most qualified candidate|voting for the most qualified]] (''aslah'') to be obligatory based on rational preference and the expediency (''maslahah'') of the Muslims. If voting for the most qualified causes a greater corruption (''mafsadah''), the Sharia duty is to remove that corruption and provide the groundwork for the qualified (''salih'') individual to receive votes (pp. 339–347).

=== Campaign Requirements ===
The author examines topics such as deception through ignorance (''ighra' bi al-jahl''), fraud (''tadlis''), seeking fame (''shuhrah''), campaigning for someone who is not the most qualified, critique, painting a bleak picture (''siyah-namayi''), and defamation (''takhrib''). According to him, taking action to gain fame in electoral campaigns and prior to it does not have a Sharia prohibition; however, in designing the ideal electoral system in the Islamic system, and due to the severe reprehensibility of seeking fame in the narrations, it is fitting that this issue be given attention. For this reason, taking action to gain fame is reprehensible (''madhmum''). He views the way out of this problem to be rational solutions; such as others campaigning for the individual, or the individual's entry into the competitive arena being based on a sense of duty derived from the wise believers. These instances remove the act of seeking fame from being reprehensible in Sharia (pp. 347–396).

== Financial Issues of Elections ==
In Kazemi's belief, since elections, like judgment (''qada''') and jihad, are considered among public interests, using the public treasury (''bayt al-mal'') to cover their costs is permissible. However, if a candidate is in a state or position that customarily holds no benefit for the elections, the funds spent on them from the public treasury are considered a form of wasting public wealth, and the candidate will be responsible for compensating these costs. Here, the criterion of benefit for the elections is a rational matter, and security, political, media, and cultural dimensions are involved in it (pp. 396–405).

Regarding financial campaign contributions in the form of gifts (''hadiyyah''), Kazemi states that if the gift is not concerning a forbidden subject and does not cause corruption in the transaction, accepting it is not problematic. Therefore, receiving a gift for electoral campaigns is also unproblematic (pp. 405–414).

He places the jurisprudential examination of the ceiling for electoral expenses within the framework of two secondary titles: "extravagance" (''israf'') and "corruption" (''fasad''). In his view, the fundamental act of spending for campaigns has no problem in itself, but if these expenses reach the level of extravagance or occur in a situation that customarily leads to corruption, it falls under the Sharia prohibition. The criterion for identifying corruption is custom ('''urf'') and previous experiences of elections, and it is determined based on the practice of the rational people (pp. 414–428).

In conclusion, Kazemi emphasizes the necessity of financial and behavioral transparency in elections and considers it necessary from two aspects: first, the people's right to know and preventing deception through ignorance; second, preventing probable corruptions. Based on this, he believes transparency must be seriously considered in electoral laws and executive bylaws (pp. 428–433).

== Supervision ==
Kazemi clarifies that one cannot conclude the lack of duty to examine the qualifications of candidates by citing the principle of exoneration (''asl al-bara'ah''), which is applied in cases of doubt. The reason is that electoral qualifications do not solely pertain to negative attributes (such as not being corrupt), but also have positive attributes, such as "good management" (''husn al-tadbir''), which must be ascertained (''ihraz''). Therefore, in the supervision process, the principle is the ascertainment of the necessary characteristics, not merely the negation of obstacles (pp. 433–440).

In the author's belief, principles such as the principle of correctness (''asl al-sihhah''), the principle of justice (''asl al-'adalah''), or having a good opinion (''husn al-zann'') are also insufficient to prove the existence of qualifications. These principles are only applied in cases where we want to negate the effects of ugliness (''qubh''), not to attach effects such as proving goodness and qualification to them. In other words, the Lawgiver (''Shari''') has not obliged us to arrange the effects based on goodness, but has only forbidden arranging the effects based on ugliness.

The author also clarifies that executing the principle of correctness in supervising elections is similar to executing it in examining the conditions of candidates, meaning it is inappropriate and invalid. This is because the principle of correctness applies where correctness or corruption is established from the perspective of Sharia, whereas regarding the correctness of elections, what is at stake is legal validity and governmental legitimacy, not a direct Sharia ruling. For this reason, one cannot employ the principle of correctness as a valid foundation in the process of supervising elections (pp. 440–448).

[[Category:Bibliography Articles]]
[[Category:Books about elections]]
[[Category:Books by Sayyid Mohammad Sadeq Kazemi]]
[[Category:Books by Imam Sadiq University]]
[[fa:انتخابات و فقه سیاسی شیعه، مبانی و الزام‌ها (کتاب)]]

Sayyid Muhammad Hadi Husayni Milani

2026-04-19T15:19:15Z

Enadmin:

{{author
|author = Mahdi Khosravi Sereshki
|author2 =
|author3 =
|compilation =
|editor1 =
|editor2 =
|editor3 =
}}

{{Infobox person
| known_as = Ayatollah Milani
| name = Sayyid Muhammad Hadi Husayni Milani
| birth_date = 1313 AH
| death_date = 1395 AH
| image = milani.jpg
| image_size =
| caption =
| position = Marja' al-Taqlid
| religion = Shia
| nationality = Iran
| field = Fiqh and Usul
| works_in_contemporary_jurisprudence = Mahadarat fi Fiqh al-Imamiyya
| views =
| teachers = [[Sayyid Abu al-Hasan Isfahani]], [[Muhammad Husayn Gharavi Na'ini]], Agha Ziya Iraqi
| students = [[Sayyid Ali Husayni Khamenei]], Muhammad Taqi Ja'fari, Azizullah Attardi, Kazim Modir Shanehchi
| website =
}}

*'''Abstract'''

'''Sayyid Muhammad Hadi Husayni Milani''' (in Persian: [[:fa:سید_محمدهادی_حسینی_میلانی|سید محمدهادی حسینی میلانی]]) was one of the Shia Marja' al-Taqlids in the fourteenth Hijri century. He studied in the [[Najaf Seminary]] and [[Karbala Seminary|Karbala]] and was a student of [[Sayyid Abu al-Hasan Isfahani]] and [[Mirza Mohammad-Hossein Gharavi Na'ini]], and he himself engaged in teaching Fiqh, Usul al-Fiqh, Exegesis, and Theology. Milani then migrated to Mashhad, and during his 22-year presence in this city, he revived [[Mashhad Seminary|its seminary]] and established a modern educational system within it. In his jurisprudential works, correspondences, and istiftas (responses to legal inquiries), there is attention to current issues and the needs of the time. The book Mahadarat fi Fiqh al-Imamiyya is among his important Fiqh works, in which discussions on prayer, Khums, Zakat, and sale (Bay') have been researched and published in independent volumes. Milani has offered new opinions in the fields of [[Medical Fiqh]], [[Economic Fiqh]], [[Worship Fiqh]], and [[Art Fiqh]].

==Scientific and Political Biography==
Sayyid Muhammad Hadi Husayni Milani is one of the Shia Marja' al-Taqlids who studied and taught in Najaf and Karbala and attended the lessons of [[Sayyid Abu al-Hasan Isfahani]], [[Mirza Mohammad-Hossein Gharavi Na'ini]], and Agha Ziya Iraqi for a long time. Milani migrated to Mashhad in 1333 SH (1954), and it is said that the reform of the condition of the [[Mashhad Seminary]] was accomplished through his efforts. He founded a new educational system in five stages, which took at least 15 years to complete and covered everything from preliminary studies to the specialized course of Fiqh and Usul. Specialization in other Islamic sciences was also organized based on the students' requests. Milani also established high-level seminary schools to upgrade the scientific level of students.<ref>Mehrizi, Shenakht-nameh, pp. 59-61, 111-114, 238-242.</ref>

Sayyid Muhammad Hadi Milani is considered part of the second generation of scholars after the Constitutional Revolution who engaged less in political activities. However, several events caused his entry into the political arena, including: World War II and the emergence of anti-colonial movements in the Islamic world, support for the struggle against Reza Shah regarding the unveiling of Hijab (Kashf-e Hijab), support for Navvab Safavi and the idea of [[Islamic Government]], support for the movement for the Nationalization of the Iranian Oil Industry, accompanying the struggle of Iraqi tribes against the British, opposition to the activities of the Tudeh Party, and support for the movement of Imam Khomeini during the era of Mohammad Reza Pahlavi.<ref>Mehrizi, Shenakht-nameh, pp. 271-277.</ref>

Although Milani did not author a book himself, his scattered notes and lesson transcriptions have been published in 15 titles; including Mahadarat fi Fiqh al-Imamiyya (an examination of various Fiqh topics, in ten volumes), Qadatuna Kayfa Na'rifuhum? (The lives of the fourteen Infallibles, in eight volumes), Nukhbat al-Masa'il (practical treatise), and the exegesis of Surah Al-Jumu'ah and At-Taghabun.<ref>Mehrizi, Shenakht-nameh, pp. 54-56.</ref> Attention to newly emerged issues (Masa'il Mustahdatha) as well as Ayatollah Milani's views on Contemporary Jurisprudence exist scatteredly in his books, which can be categorized into several fields such as [[Medical Fiqh]], [[Economic Fiqh]], [[Art Fiqh]], and [[Worship Fiqh]].

==Medical and Biological Fiqh==
===Artificial and Voluntary Insemination===
Based on Ayatollah Milani's view, voluntary [[artificial insemination]] is not permissible, although ostensibly there is no explicit text in verses and narrations regarding its prohibition. Nevertheless, the child resulting from insemination belongs to the owner of the sperm in terms of lineage, and if the father is not identified, the child has the ruling of a child of unknown lineage. This act is not considered Zina (adultery) for the woman. Regarding inheritance, the child inherits from the mother, and if the father is identified, from him and other relatives according to the classes of inheritance. The [[Nafaqa]] (maintenance) of the child is upon the father, and if the father is not specified, it is upon the mother, and in case of the mother's poverty, it will be upon the [[Bayt al-Mal]]. Furthermore, regarding the spread of prohibition (Mahramiyat), the child is considered the same as children resulting from legal marriage.<ref>Milani, Didgah-haye Elmi, pp. 189 & 386.</ref> Also, the insemination of a foreign man's sperm into a woman's womb is religiously contrary to Islamic regulations. However, if such insemination is performed and a child is born, the child cannot be considered Walad al-Zina (child of adultery).<ref>Milani, Didgah-haye Elmi, p. 320.</ref>

===Transplantation of Muslim and Non-Muslim Body Parts===
Milani does not consider the transplantation of Muslim body parts, such as a kidney and the cornea of the eye, to be permissible, whether from a dead body or a living body; but the use of body parts of the [[Ahl al-Kitab]] (People of the Book) who do not adhere to the Islamic Dhimma laws, and also from the body of an apostate, a Nasibi, and other Kafirs (disbelievers), is not impeded. According to him, in case of using a dead Muslim's body parts, his [[Diya]] must be paid and spent on charity for that deceased person. In his belief, the use of a dead Kafir's body parts is permissible if, after transplantation, it becomes part of the Muslim's body.<ref name=":0">Milani, Didgah-haye Elmi, pp. 203-256.</ref>

===Dissection of Dead Bodies for Educational Purposes===
Based on Milani's opinion, [[Autopsy|dissection]] of a Muslim's body religiously necessitates the payment of Diya, the amount of which is specified based on the type of limb and is calculated as one-tenth of a living Muslim's Diya. This Diya must be spent on charity for the deceased, and the heirs do not inherit from it. However, the dissection of a Kafir's body has no Diya. In case of medical necessity, the dissection of a Muslim's body is permissible; but its Diya is not waived and must be paid.<ref>Milani, Didgah-haye Elmi, pp. 203 & 232.</ref>

===Contraception with Pills===
According to Milani, preventing pregnancy before the formation of the sperm (Nutfah), such as using pills or other methods, provided that the semen does not enter the woman's womb at all and the woman also consents, has no problem religiously. Also, if by using pills or similar methods, the man's seed is prevented from reaching the woman's seed (ovum), there is apparently no impediment. But if after the Nutfah is formed—meaning the man's seed has reached the woman's seed—an action is taken that causes its destruction and prevents the birth of the child, this act is considered a sin, and the perpetrator must pay fifteen mithqals of coined gold as Diya.<ref>Milani, Didgah-haye Elmi, pp. 387 & 388.</ref>

===Consuming Alcohol-based Medicine===
In Milani's belief, the use of medicines that contain alcohol in their composition depends on the certainty and doubt of the Mukallaf (person obligated to observe precepts). If the person does not know whether the alcohol present in the medicine is of the intoxicating type or taken from an intoxicating liquid, avoiding it is not obligatory. But if he is certain that it is so, he must avoid it. In this regard, investigation and examination about the type of alcohol are not necessary. Even if the alcohol present in the medicine is of the intoxicating type, provided that its effect has been consumed (dissipated) and it does not have potential intoxicating properties, the use of those medicines is not impeded.<ref>Milani, Didgah-haye Elmi, p. 317.</ref>

== Fiqh of Edibles ==
===Slaughtering Animals by Machine===
If the slaughter of animals is performed by a machine, but the real and actual attribution of the slaughter is given to the human—meaning the human uses the machine for slaughter with will and religious intent, according to Milani's view, there is no problem, only other religious conditions of slaughter such as mentioning God's name, cutting the four vessels, and the direction of Qibla must be observed, and it is considered a lawful (Shar'i) slaughter.<ref>Milani, Didgah-haye Elmi, p. 254.</ref>

===Eating Fish with Small Scales===
Eating the meat of fish that have small scales on their skin or are sparsely scaled, provided they possess even a slight amount of scales (Fals), is permissible based on Milani's opinion. Therefore, the criterion for the permissibility of eating fish meat is the existence of scales—even if minimal—on the body of the fish.<ref>Milani, Didgah-haye Elmi, pp. 363 & 364.</ref>

==Economic and Banking Fiqh==
===Credit Value of Banknotes===
In response to a question about the financial value (Maliyyat) of banknotes and its relation to the concept of government property being "Unknown Owner" (Majhul al-Malik) (relating to the Pahlavi government and before the Islamic Revolution), Ayatollah Milani believes that if the banknotes current among the people are considered government property and we consider the government as Majhul al-Malik, this view faces serious jurisprudential problems. Because:

If banknotes are Majhul al-Malik, they must be given as charity and only the poor have the right to use them; consequently, the wealthy do not own them.

Transactions with these banknotes become void or the buyer remains indebted in the Dhimma of the seller.

In inheritance, if the heirs are deserving of charity, whoever acts first takes the banknotes, and inheritance has no meaning regarding them.

These problems show that [[Nature of Money|banknotes]] cannot be considered Majhul al-Malik. Therefore, if we consider the banknote as a means to wealth and a document for it, the document being Majhul al-Malik does not create a problem, and if the banknote itself possesses financial value, its initial origin (i.e., general permissibility/Ibahah) is presumed via Istishab; meaning it is assumed that it remains permissible. Anyone—poor or rich—who possesses the banknote and intends to own it, is considered its owner, and all effects of ownership apply to it; including the attachment of Khums, validity of transactions, and realization of profit. Another point is that ownership is a credit-based (I'tibari) matter, and its subject does not need to be an external existent; rather, it can simply be a mental and contractual credit.<ref>Milani, Risalah Mujazah, pp. 12-20; Milani, Didgah-haye Elmi, pp. 103-104.</ref>

In response to the question "Are banknotes considered among counted items (Ma'dudat), and is buying and selling them with increase and decrease, whether with a condition or without a condition, permissible?" he has issued a Fatwa that the ruling on buying and selling banknotes with increase and decrease depends on the person's perception of the nature of the banknote; therefore:

If the banknote merely has the aspect of being a document—meaning it is considered only as a draft or representative of real wealth, in this case, buying and selling it with increase and decrease is not permissible and falls under the ruling of [[Riba]].

But if the banknote possesses financial value in itself—meaning the banknote itself is recognized as independent wealth—in this case, the banknote is considered among counted items (Ma'dudat), and in counted items, transactional Riba does not apply; therefore, buying and selling it with increase and decrease is permissible.

Diagnosing whether the banknote in a specific transaction has the aspect of documentality or intrinsic financial value is upon the Mukallaf, and he must determine it by carefully considering the conditions of the transaction and the intent of the parties.<ref>Milani, Didgah-haye Elmi, pp. 387-388.</ref>

===Discounting Checks===
In Milani's belief, a [[Check]] as a financial document is not tradable; rather, the transaction must apply to what is in the Dhimma (i.e., the real debt existing in the Dhimma of the check issuer). Therefore, if the subject of the transaction is cash (banknotes) and not the check itself, and the transaction is performed correctly and religiously, there is no impediment and it is not considered Riba. Consequently, a transaction in which a check for the amount of one hundred Tomans is sold at the price of ninety Tomans will only be religious and non-usurious if the transaction is performed based on the real debt and with the observance of Fiqh conditions, not merely the buying and selling of the check document.<ref>Milani, Didgah-haye Elmi, pp. 323-324.</ref>

==Fiqh of Art and Media==
===Chess for Sports and Strengthening Intelligence===
In Milani's belief, the game of [[Chess]]—even if performed with the aim of entertainment and strengthening intelligence and lacks betting—is religiously Haram (forbidden). The reasons for the prohibition of chess in the Quran and narrations from his perspective are:

During the game, the entire thought and heart of the human becomes focused on the game, and this state is a type of Lahw (vain amusement) and complete negligence of the remembrance of God.

The psychological conflict resulting from winning and losing in the game can create negative moral effects between the parties.

This atmosphere provides a ground for the dominance of Satan and the commanding self (Nafs al-Ammara).

Therefore, even in the absence of betting or competition, the very engagement in chess is not permissible jurisprudentially.<ref>Milani, Didgah-haye Elmi, p. 208, 235, 196, & 240.</ref>

===Painting, Sculpting, and Statue Making===

Milani considers drawing the image of humans and animals and making [[Sculpture|statues]] of beings possessing a soul to be problematic religiously; but he considers keeping a statue, provided it is for a rational purpose, to be without problem.<ref>Milani, Didgah-haye Elmi, pp. 304-307.</ref>

==Fiqh of Acts of Worship==
=== Validity of Moon Sighting and Horizon Difference ===
Milani has accepted the validity of [[Moon Sighting]] at the beginning of the lunar month without differentiating between the unity or difference of the horizon in cities. That is, if the sighting of the moon is achieved in a city, even if that city is not the residence of the fasting person, it is sufficient to prove the first of the month.

This basis rests on several principles:

The absolute nature (Itlaq) of the narrations implies that sighting the moon at any point on earth is sufficient to prove the first of the month.

The definition of the first of the month is the moon exiting from under the rays (Taht al-Sha'a), which is a cosmic and factual matter (Nafs al-Amri); unlike the sunrise and sunset which is a relative matter and dependent on geographical location.

Moon sighting has the quality of being a path (Tariqiyya), meaning it is a way to discover reality. If knowledge is obtained that the moon has exited from under the rays, that time will definitely be the first of the month.

Therefore, the first of the lunar month is a cosmic reality that is provable by sighting the moon—even in a city other than the fasting person's location—and the difference of horizon has no effect on this ruling.<ref>Milani, Didgah-haye Elmi, pp. 278-279.</ref>

===Qibla and Prayer Times in Space Travel===
Milani says the following regarding the status of performing prayer for astronauts:

Prayer Qasr (Shortened) and Tamam (Full) in Space Travel: Travel to outside the planet Earth is jurisprudentially the same as travel inside the Earth. Therefore, if the religious conditions of travel are realized, the rulings of Qasr or Tamam prayer will also be applicable according to the same criteria.
Determining Qibla in Space or Other Spheres: The Qibla is still the Kaaba. To determine the direction of the Qibla in space or other planets, the Mukallaf must either diagnose the direction himself with sufficient knowledge, or refer to the opinion of experts and obtain assurance from their statement.
Prayer Times Outside Earth: If the person is in space and in Earth's orbit, he must perform five prayers in every rotation of the Earth around itself, observing the time intervals. These intervals must be adjusted based on the times of morning, noon, and Maghrib of his earthly residence. But if he is on another planet that has day and night like Earth, he must adjust the prayer times based on the morning, noon, and Maghrib of that same planet. Of course, if the rotation of that planet is slower than Earth, he must practice caution; meaning he should pray both according to the times of his earthly location and according to the times of that planet.<ref>Milani, Didgah-haye Elmi, pp. 195-196.</ref>

==Impurity of the People of the Book==
Milani believes that the People of the Book (Ahl al-Kitab), according to obligatory caution, are considered Najis (impure) and must be avoided. This avoidance is not only due to physical contamination but due to religious interests, practical wisdom, and religious policy; because contact and association with them might cause the transmission of spiritual and psychological harms. He considers the impurity of the People of the Book to be intrinsic impurity (Dhati), not merely resulting from carelessness or physical contamination. This ruling is based on numerous narrations that indicate the necessity of avoidance.

According to him, some scholars might consider Christians to be monotheists, in the sense that in their belief, the three hypostases (Father, Son, Holy Spirit) are not parallel to each other, but they consider the other two hypostases as created and manifestations of divine attributes and intermediaries in grace. However, this understanding has no effect on the Fiqh ruling, and caution in avoiding them is still necessary.<ref>Milani, Didgah-haye Elmi, p. 46 & 335-342.</ref>

==Footnotes==
{{Footnotes}}
==References==
{{References}}
Milani, Sayyid Muhammad Hadi, Didgah-haye Elmi: Pasokh be Porsesh-haye Fiqhi, Kalami, Falsafi, Erfani, Tafsiri va Tarikhi, effort by Gholamreza Jalali, Mashhad, Islamic Research Foundation, 1386 SH.

Milani, Sayyid Muhammad Hadi, Risalah Mujazah fi Ahkam al-Kumbyalat (al-Sanadat), Najaf: Nu'man Printing House.

Milani, Sayyid Muhammad Hadi, Mukhtasar al-Ahkam, Tehran, Saduq, n.d.

Milani, Sayyid Muhammad Hadi, Makatabat-e Hazrat Ayatollah al-Uzma Sayyid Muhammad Hadi Milani, Tehran, Sahl Publications, 1396 SH.

Mehrizi, Mahdi, Shenakht-nameh Hazrat Ayatollah al-Uzma Sayyid Muhammad Hadi Milani, Tehran, Sahl Publications, 1395 SH.

[[Category:Biographical Articles]]
[[fa:سید محمدهادی حسینی میلانی]]
[[Category:Contemporary Jurisprudence Articles]]

File:Milani.jpg

2026-04-19T15:17:44Z

Enadmin:

Sayyid Muhammad Hadi Husayni Milani

2026-04-19T15:17:30Z

Enadmin:

{{author
|author = Mahdi Khosravi Sereshki
|author2 =
|author3 =
|compilation =
|editor1 =
|editor2 =
|editor3 =
}}

{{Infobox person
| known_as = Ayatollah Milani
| name = Sayyid Muhammad Hadi Husayni Milani
| birth_date = 1313 AH
| death_date = 1395 AH
| image = milani.jpg
| image_size =
| caption =
| position = Marja' al-Taqlid
| religion = Shia
| nationality = Iran
| field = Fiqh and Usul
| works_in_contemporary_jurisprudence = Mahadarat fi Fiqh al-Imamiyya
| views =
| teachers = [[Sayyid Abu al-Hasan Isfahani]], [[Muhammad Husayn Gharavi Na'ini]], Agha Ziya Iraqi
| students = [[Sayyid Ali Husayni Khamenei]], Muhammad Taqi Ja'fari, Azizullah Attardi, Kazim Modir Shanehchi
| website =
}}

*'''Abstract'''

'''Sayyid Muhammad Hadi Husayni Milani''' (in Persian: [[:fa:سید_محمدهادی_حسینی_میلانی|سید محمدهادی حسینی میلانی]]) was one of the Shia Marja' al-Taqlids in the fourteenth lunar Hijri century. He studied in the [[Najaf Seminary]] and [[Karbala Seminary|Karbala]] and was a student of [[Sayyid Abu al-Hasan Isfahani]] and [[Mirza Mohammad-Hossein Gharavi Na'ini]], and he himself engaged in teaching Fiqh, Usul al-Fiqh, Exegesis, and Theology. Milani then migrated to Mashhad, and during his 22-year presence in this city, he revived [[Mashhad Seminary|its seminary]] and established a modern educational system within it. In his jurisprudential works, correspondences, and istiftas (responses to legal inquiries), there is attention to current issues and the needs of the time. The book Mahadarat fi Fiqh al-Imamiyya is among his important Fiqh works, in which discussions on prayer, Khums, Zakat, and sale (Bay') have been researched and published in independent volumes. Milani has offered new opinions in the fields of [[Medical Fiqh]], [[Economic Fiqh]], [[Worship Fiqh]], and [[Art Fiqh]].

==Scientific and Political Biography==
Sayyid Muhammad Hadi Husayni Milani is one of the Shia Marja' al-Taqlids who studied and taught in Najaf and Karbala and attended the lessons of [[Sayyid Abu al-Hasan Isfahani]], [[Mirza Mohammad-Hossein Gharavi Na'ini]], and Agha Ziya Iraqi for a long time. Milani migrated to Mashhad in 1333 SH (1954), and it is said that the reform of the condition of the [[Mashhad Seminary]] was accomplished through his efforts. He founded a new educational system in five stages, which took at least 15 years to complete and covered everything from preliminary studies to the specialized course of Fiqh and Usul. Specialization in other Islamic sciences was also organized based on the students' requests. Milani also established high-level seminary schools to upgrade the scientific level of students.<ref>Mehrizi, Shenakht-nameh, pp. 59-61, 111-114, 238-242.</ref>

Sayyid Muhammad Hadi Milani is considered part of the second generation of scholars after the Constitutional Revolution who engaged less in political activities. However, several events caused his entry into the political arena, including: World War II and the emergence of anti-colonial movements in the Islamic world, support for the struggle against Reza Shah regarding the unveiling of Hijab (Kashf-e Hijab), support for Navvab Safavi and the idea of [[Islamic Government]], support for the movement for the Nationalization of the Iranian Oil Industry, accompanying the struggle of Iraqi tribes against the British, opposition to the activities of the Tudeh Party, and support for the movement of Imam Khomeini during the era of Mohammad Reza Pahlavi.<ref>Mehrizi, Shenakht-nameh, pp. 271-277.</ref>

Although Milani did not author a book himself, his scattered notes and lesson transcriptions have been published in 15 titles; including Mahadarat fi Fiqh al-Imamiyya (an examination of various Fiqh topics, in ten volumes), Qadatuna Kayfa Na'rifuhum? (The lives of the fourteen Infallibles, in eight volumes), Nukhbat al-Masa'il (practical treatise), and the exegesis of Surah Al-Jumu'ah and At-Taghabun.<ref>Mehrizi, Shenakht-nameh, pp. 54-56.</ref> Attention to newly emerged issues (Masa'il Mustahdatha) as well as Ayatollah Milani's views on Contemporary Jurisprudence exist scatteredly in his books, which can be categorized into several fields such as [[Medical Fiqh]], [[Economic Fiqh]], [[Art Fiqh]], and [[Worship Fiqh]].

==Medical and Biological Fiqh==
===Artificial and Voluntary Insemination===
Based on Ayatollah Milani's view, voluntary [[artificial insemination]] is not permissible, although ostensibly there is no explicit text in verses and narrations regarding its prohibition. Nevertheless, the child resulting from insemination belongs to the owner of the sperm in terms of lineage, and if the father is not identified, the child has the ruling of a child of unknown lineage. This act is not considered Zina (adultery) for the woman. Regarding inheritance, the child inherits from the mother, and if the father is identified, from him and other relatives according to the classes of inheritance. The [[Nafaqa]] (maintenance) of the child is upon the father, and if the father is not specified, it is upon the mother, and in case of the mother's poverty, it will be upon the [[Bayt al-Mal]]. Furthermore, regarding the spread of prohibition (Mahramiyat), the child is considered the same as children resulting from legal marriage.<ref>Milani, Didgah-haye Elmi, pp. 189 & 386.</ref> Also, the insemination of a foreign man's sperm into a woman's womb is religiously contrary to Islamic regulations. However, if such insemination is performed and a child is born, the child cannot be considered Walad al-Zina (child of adultery).<ref>Milani, Didgah-haye Elmi, p. 320.</ref>

===Transplantation of Muslim and Non-Muslim Body Parts===
Milani does not consider the transplantation of Muslim body parts, such as a kidney and the cornea of the eye, to be permissible, whether from a dead body or a living body; but the use of body parts of the [[Ahl al-Kitab]] (People of the Book) who do not adhere to the Islamic Dhimma laws, and also from the body of an apostate, a Nasibi, and other Kafirs (disbelievers), is not impeded. According to him, in case of using a dead Muslim's body parts, his [[Diya]] must be paid and spent on charity for that deceased person. In his belief, the use of a dead Kafir's body parts is permissible if, after transplantation, it becomes part of the Muslim's body.<ref name=":0">Milani, Didgah-haye Elmi, pp. 203-256.</ref>

===Dissection of Dead Bodies for Educational Purposes===
Based on Milani's opinion, [[Autopsy|dissection]] of a Muslim's body religiously necessitates the payment of Diya, the amount of which is specified based on the type of limb and is calculated as one-tenth of a living Muslim's Diya. This Diya must be spent on charity for the deceased, and the heirs do not inherit from it. However, the dissection of a Kafir's body has no Diya. In case of medical necessity, the dissection of a Muslim's body is permissible; but its Diya is not waived and must be paid.<ref>Milani, Didgah-haye Elmi, pp. 203 & 232.</ref>

===Contraception with Pills===
According to Milani, preventing pregnancy before the formation of the sperm (Nutfah), such as using pills or other methods, provided that the semen does not enter the woman's womb at all and the woman also consents, has no problem religiously. Also, if by using pills or similar methods, the man's seed is prevented from reaching the woman's seed (ovum), there is apparently no impediment. But if after the Nutfah is formed—meaning the man's seed has reached the woman's seed—an action is taken that causes its destruction and prevents the birth of the child, this act is considered a sin, and the perpetrator must pay fifteen mithqals of coined gold as Diya.<ref>Milani, Didgah-haye Elmi, pp. 387 & 388.</ref>

===Consuming Alcohol-based Medicine===
In Milani's belief, the use of medicines that contain alcohol in their composition depends on the certainty and doubt of the Mukallaf (person obligated to observe precepts). If the person does not know whether the alcohol present in the medicine is of the intoxicating type or taken from an intoxicating liquid, avoiding it is not obligatory. But if he is certain that it is so, he must avoid it. In this regard, investigation and examination about the type of alcohol are not necessary. Even if the alcohol present in the medicine is of the intoxicating type, provided that its effect has been consumed (dissipated) and it does not have potential intoxicating properties, the use of those medicines is not impeded.<ref>Milani, Didgah-haye Elmi, p. 317.</ref>

== Fiqh of Edibles ==
===Slaughtering Animals by Machine===
If the slaughter of animals is performed by a machine, but the real and actual attribution of the slaughter is given to the human—meaning the human uses the machine for slaughter with will and religious intent, according to Milani's view, there is no problem, only other religious conditions of slaughter such as mentioning God's name, cutting the four vessels, and the direction of Qibla must be observed, and it is considered a lawful (Shar'i) slaughter.<ref>Milani, Didgah-haye Elmi, p. 254.</ref>

===Eating Fish with Small Scales===
Eating the meat of fish that have small scales on their skin or are sparsely scaled, provided they possess even a slight amount of scales (Fals), is permissible based on Milani's opinion. Therefore, the criterion for the permissibility of eating fish meat is the existence of scales—even if minimal—on the body of the fish.<ref>Milani, Didgah-haye Elmi, pp. 363 & 364.</ref>

==Economic and Banking Fiqh==
===Credit Value of Banknotes===
In response to a question about the financial value (Maliyyat) of banknotes and its relation to the concept of government property being "Unknown Owner" (Majhul al-Malik) (relating to the Pahlavi government and before the Islamic Revolution), Ayatollah Milani believes that if the banknotes current among the people are considered government property and we consider the government as Majhul al-Malik, this view faces serious jurisprudential problems. Because:

If banknotes are Majhul al-Malik, they must be given as charity and only the poor have the right to use them; consequently, the wealthy do not own them.

Transactions with these banknotes become void or the buyer remains indebted in the Dhimma of the seller.

In inheritance, if the heirs are deserving of charity, whoever acts first takes the banknotes, and inheritance has no meaning regarding them.

These problems show that [[Nature of Money|banknotes]] cannot be considered Majhul al-Malik. Therefore, if we consider the banknote as a means to wealth and a document for it, the document being Majhul al-Malik does not create a problem, and if the banknote itself possesses financial value, its initial origin (i.e., general permissibility/Ibahah) is presumed via Istishab; meaning it is assumed that it remains permissible. Anyone—poor or rich—who possesses the banknote and intends to own it, is considered its owner, and all effects of ownership apply to it; including the attachment of Khums, validity of transactions, and realization of profit. Another point is that ownership is a credit-based (I'tibari) matter, and its subject does not need to be an external existent; rather, it can simply be a mental and contractual credit.<ref>Milani, Risalah Mujazah, pp. 12-20; Milani, Didgah-haye Elmi, pp. 103-104.</ref>

In response to the question "Are banknotes considered among counted items (Ma'dudat), and is buying and selling them with increase and decrease, whether with a condition or without a condition, permissible?" he has issued a Fatwa that the ruling on buying and selling banknotes with increase and decrease depends on the person's perception of the nature of the banknote; therefore:

If the banknote merely has the aspect of being a document—meaning it is considered only as a draft or representative of real wealth, in this case, buying and selling it with increase and decrease is not permissible and falls under the ruling of [[Riba]].

But if the banknote possesses financial value in itself—meaning the banknote itself is recognized as independent wealth—in this case, the banknote is considered among counted items (Ma'dudat), and in counted items, transactional Riba does not apply; therefore, buying and selling it with increase and decrease is permissible.

Diagnosing whether the banknote in a specific transaction has the aspect of documentality or intrinsic financial value is upon the Mukallaf, and he must determine it by carefully considering the conditions of the transaction and the intent of the parties.<ref>Milani, Didgah-haye Elmi, pp. 387-388.</ref>

===Discounting Checks===
In Milani's belief, a [[Check]] as a financial document is not tradable; rather, the transaction must apply to what is in the Dhimma (i.e., the real debt existing in the Dhimma of the check issuer). Therefore, if the subject of the transaction is cash (banknotes) and not the check itself, and the transaction is performed correctly and religiously, there is no impediment and it is not considered Riba. Consequently, a transaction in which a check for the amount of one hundred Tomans is sold at the price of ninety Tomans will only be religious and non-usurious if the transaction is performed based on the real debt and with the observance of Fiqh conditions, not merely the buying and selling of the check document.<ref>Milani, Didgah-haye Elmi, pp. 323-324.</ref>

==Fiqh of Art and Media==
===Chess for Sports and Strengthening Intelligence===
In Milani's belief, the game of [[Chess]]—even if performed with the aim of entertainment and strengthening intelligence and lacks betting—is religiously Haram (forbidden). The reasons for the prohibition of chess in the Quran and narrations from his perspective are:

During the game, the entire thought and heart of the human becomes focused on the game, and this state is a type of Lahw (vain amusement) and complete negligence of the remembrance of God.

The psychological conflict resulting from winning and losing in the game can create negative moral effects between the parties.

This atmosphere provides a ground for the dominance of Satan and the commanding self (Nafs al-Ammara).

Therefore, even in the absence of betting or competition, the very engagement in chess is not permissible jurisprudentially.<ref>Milani, Didgah-haye Elmi, p. 208, 235, 196, & 240.</ref>

===Painting, Sculpting, and Statue Making===

Milani considers drawing the image of humans and animals and making [[Sculpture|statues]] of beings possessing a soul to be problematic religiously; but he considers keeping a statue, provided it is for a rational purpose, to be without problem.<ref>Milani, Didgah-haye Elmi, pp. 304-307.</ref>

==Fiqh of Acts of Worship==
=== Validity of Moon Sighting and Horizon Difference ===
Milani has accepted the validity of [[Moon Sighting]] at the beginning of the lunar month without differentiating between the unity or difference of the horizon in cities. That is, if the sighting of the moon is achieved in a city, even if that city is not the residence of the fasting person, it is sufficient to prove the first of the month.

This basis rests on several principles:

The absolute nature (Itlaq) of the narrations implies that sighting the moon at any point on earth is sufficient to prove the first of the month.

The definition of the first of the month is the moon exiting from under the rays (Taht al-Sha'a), which is a cosmic and factual matter (Nafs al-Amri); unlike the sunrise and sunset which is a relative matter and dependent on geographical location.

Moon sighting has the quality of being a path (Tariqiyya), meaning it is a way to discover reality. If knowledge is obtained that the moon has exited from under the rays, that time will definitely be the first of the month.

Therefore, the first of the lunar month is a cosmic reality that is provable by sighting the moon—even in a city other than the fasting person's location—and the difference of horizon has no effect on this ruling.<ref>Milani, Didgah-haye Elmi, pp. 278-279.</ref>

===Qibla and Prayer Times in Space Travel===
Milani says the following regarding the status of performing prayer for astronauts:

Prayer Qasr (Shortened) and Tamam (Full) in Space Travel: Travel to outside the planet Earth is jurisprudentially the same as travel inside the Earth. Therefore, if the religious conditions of travel are realized, the rulings of Qasr or Tamam prayer will also be applicable according to the same criteria.
Determining Qibla in Space or Other Spheres: The Qibla is still the Kaaba. To determine the direction of the Qibla in space or other planets, the Mukallaf must either diagnose the direction himself with sufficient knowledge, or refer to the opinion of experts and obtain assurance from their statement.
Prayer Times Outside Earth: If the person is in space and in Earth's orbit, he must perform five prayers in every rotation of the Earth around itself, observing the time intervals. These intervals must be adjusted based on the times of morning, noon, and Maghrib of his earthly residence. But if he is on another planet that has day and night like Earth, he must adjust the prayer times based on the morning, noon, and Maghrib of that same planet. Of course, if the rotation of that planet is slower than Earth, he must practice caution; meaning he should pray both according to the times of his earthly location and according to the times of that planet.<ref>Milani, Didgah-haye Elmi, pp. 195-196.</ref>

==Impurity of the People of the Book==
Milani believes that the People of the Book (Ahl al-Kitab), according to obligatory caution, are considered Najis (impure) and must be avoided. This avoidance is not only due to physical contamination but due to religious interests, practical wisdom, and religious policy; because contact and association with them might cause the transmission of spiritual and psychological harms. He considers the impurity of the People of the Book to be intrinsic impurity (Dhati), not merely resulting from carelessness or physical contamination. This ruling is based on numerous narrations that indicate the necessity of avoidance.

According to him, some scholars might consider Christians to be monotheists, in the sense that in their belief, the three hypostases (Father, Son, Holy Spirit) are not parallel to each other, but they consider the other two hypostases as created and manifestations of divine attributes and intermediaries in grace. However, this understanding has no effect on the Fiqh ruling, and caution in avoiding them is still necessary.<ref>Milani, Didgah-haye Elmi, p. 46 & 335-342.</ref>

==Footnotes==
{{Footnotes}}
==References==
{{References}}
Milani, Sayyid Muhammad Hadi, Didgah-haye Elmi: Pasokh be Porsesh-haye Fiqhi, Kalami, Falsafi, Erfani, Tafsiri va Tarikhi, effort by Gholamreza Jalali, Mashhad, Islamic Research Foundation, 1386 SH.

Milani, Sayyid Muhammad Hadi, Risalah Mujazah fi Ahkam al-Kumbyalat (al-Sanadat), Najaf: Nu'man Printing House.

Milani, Sayyid Muhammad Hadi, Mukhtasar al-Ahkam, Tehran, Saduq, n.d.

Milani, Sayyid Muhammad Hadi, Makatabat-e Hazrat Ayatollah al-Uzma Sayyid Muhammad Hadi Milani, Tehran, Sahl Publications, 1396 SH.

Mehrizi, Mahdi, Shenakht-nameh Hazrat Ayatollah al-Uzma Sayyid Muhammad Hadi Milani, Tehran, Sahl Publications, 1395 SH.

[[Category:Biographical Articles]]
[[fa:سید محمدهادی حسینی میلانی]]
[[Category:Contemporary Jurisprudence Articles]]

File:Mohammad Hassan Shushtari.jpg

2026-04-19T15:16:04Z

Enadmin:

The Objectives of Punishments in Sexual Crimes: An Islamic Perspective (Book)

2026-04-03T12:18:01Z

Enadmin:

{{author
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{{infobox book
| title = The Objectives of Punishments in Sexual Crimes: An Islamic Perspective
| image = The_Objectives_of_Punishments_in_Sexual_Crimes_An_Islamic_Perspective.jpg
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| other_names =
| author = [[Rahim Nowbahar]]
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| subject = Sexual Crimes
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| language = Persian
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| pages = 408
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| publisher = Islamic Sciences and Culture Academy
| publication_place = Qom
| publication_date = 2010 (1389 SH)
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}}'''Abstract'''

'''The Objectives of Punishments in Sexual Crimes: An Islamic Perspective''' (اهداف مجازات‌ها در جرایم جنسی؛ چشم‌اندازی اسلامی), written by [[Rahim Nowbahar]], re-examines the philosophy of punishments in [[sexual crimes]] in Islamic jurisprudence with an objective-oriented approach (extracting Sharia purposes) and a holistic view (a comprehensive look at the various dimensions of the subject). Moving beyond a purely devotional (''ta'abbudi'') perspective, this work argues that in Islam, punishments are tools for realizing transcendent goals such as executing justice, rehabilitating the offender, and deterrence.

By distinguishing between "individual lapses" and "crimes against public morality," this book shows that the Lawgiver's (''Shari''') approach toward these two categories is entirely different. In the first type, by making the methods of proof difficult, the emphasis is placed on covering up (''pardeh-pushi'') and repentance (''tawbah''), but in the second type, the main goal is the decisive defense of social values. Ultimately, by analyzing the "conflict" (''tazahum'') between executing prescribed punishments (''hudud'') and higher interests (such as avoiding the [[Maxim of alienating from religion|alienation from religion]]), the research concludes that the Islamic penal system is flexible and dynamic. In it, the Islamic sovereignty can and must, for the realization of the true objectives of punishments, apply necessary changes in the quality and even the very execution of punishments through [[Maxim of Expediency|expediency evaluation]] (''maslahat-sanji'').

== Brief Overview ==
The book The Objectives of Punishments in Sexual Crimes: An Islamic Perspective, penned by Rahim Nowbahar, is among the books of judicial jurisprudence with a focus on sexual crimes. This book was first published by the [[Islamic Sciences and Culture Academy]] in 2010 (1389 SH) in 408 pages.

=== Structure of the Book ===
This research is organized into an introduction and five main chapters: The first chapter presents the theoretical foundations and methods for recognizing the objectives of Islamic punishments (pp. 56-126). The second chapter analyzes the objectives of punishments in [[sexual crimes]] warranting ''hadd'' (adultery/fornication [''zina''], sodomy [''liwat''], and lesbianism [''musahaqah'']), with an emphasis on the difficulty of proof and the principle of covering up (pp. 127-180). The third chapter is dedicated to discretionary (''ta'ziri'') sexual crimes that have the nature of an individual error (pp. 180-239). The fourth chapter examines crimes against public morality (such as [[procuring (''qawwadi'')]]) (pp. 241-288). The final chapter addresses the discussion of the conflict (''tazahum'') between executing ''hudud'' and higher interests, such as the maxim of "[[Maxim of No Hardship|social hardship of Muslims]]" and the "[[Prohibition of alienating from religion|prohibition of alienating from religion]]" (pp. 291-406).

== Objectives of Islamic Punishments ==
=== First Section: Ways of Discovering the Objectives of Islamic Punishments ===
In the author's belief, several ways can be utilized to discover the objectives of punishments in Islam:

'''Recognizing the General Objectives of Islam:''' Principles such as justice, which is one of the goals of the prophets' mission, and purification (''tazkiyah''), mercy (''rahmah''), and dignity (''karamah''), which are employed for the reformation of the individual, are strategic principles for directing the goals of the penal system (pp. 56-59).

'''Deduction from the Text and the Apparent Meaning of Texts:''' By contemplating verses and narrations, as well as the rationale and wisdom mentioned for certain rulings, one can discover the objectives of the Lawgiver. On this path, one should not content oneself with definitive texts (''nusus''); rather, valid apparent meanings (''zawahir'') and even the understanding derived from the totality of the evidences (the spirit of the law) are also authoritative (''hujjah'') (pp. 59-69).

'''Studying the History of Punishments:''' Examining the historical background of punishments and the developments that occurred in their execution during the time of the Infallibles (a) is very illuminating. For example, the change in the punishment for drinking alcohol from forty lashes to eighty lashes during the time of the second Caliph. This change, which occurred with the suggestion of Imam Ali (a) and because the previous punishment was not a deterrent, shows that "deterrence" is one of the key objectives (pp. 69-70).

Whether Punishments are Endorsed (''Imda'i'') or Established (''Ta'sisi''): Almost all corporal punishments in Islam (stoning [''rajm''], flogging, amputation of the hand) were prevalent before Islam as well. Now, did the Lawgiver consider these punishments a rational practice and endorse them with the condition of "being prevalent" (restrictive aspect or ''haythiyyat taqyidiyyah''), or was the reason for the Lawgiver's endorsement solely their prevalence (causative aspect or ''haythiyyat ta'liliyyah'')? If the condition of prevalence is part of the subject (''mawdu'''), then with the disappearance of the rational prevalence of a punishment, the subject of the ruling is also nullified. This discussion raises the possibility of changing punishments based on social and cultural developments (pp. 74-75).

'''The Type of Punishments and the Method of Their Execution:''' The type of punishments (such as [[execution]] or [[imprisonment]]) and the manner of their execution (publicly or privately) can indicate the legislator's objectives. Islam's emphasis on executing punishment in the presence of a group of believers indicates the aspect of public deterrence and universal supervision (pp. 84-85).

'''Cases of the Nullification (''Suqut'') of Punishments:''' Factors such as repentance (''tawbah''), the complainant's forgiveness, and the ruler's pardon, which cause the nullification of the punishment, show that the rehabilitation of the offender and compensation for the victim's loss are among the important objectives of Islam's penal system (pp. 86-87).

'''The Ruling of Punishments in the Assumption of Conflict (''Tazahum''):''' Sometimes a conflict arises between the [[expediency]] (''maslahah'') of executing a punishment and other expediencies or corruptions (''mafasid''); scrutinizing the legislator's rulings in cases of conflict regarding the execution of a punishment or overlooking it reveals the legislator's attitude toward punishment and its objectives (p. 87).

=== Second Section: Objectives of Islamic Punishments ===
The author explains the objectives of Islamic punishments as follows:

'''Execution of Justice:''' Justice is the ultimate goal of the prophets' mission and the spirit governing all Islamic rulings; the emphasis on "retribution in kind" (''qisas bi al-mithl'') and the prohibition of extravagance in killing are manifestations of this fundamental goal. Islamic justice pays attention to expediency evaluation and consequentialism, and is mingled with pardon and mercy (pp. 99-106).

'''Reformation and Rehabilitation of the Offender:''' Purification and upbringing are among the main goals of religion. The prominent role of repentance in the nullification of many punishments and the religious leaders' emphasis on the reformation of and clemency toward the offender clearly show that rehabilitation and returning the individual to society are among the important goals of Islamic punishments (pp. 107-109).

'''Defense of Society and Its Values:''' Alongside attention to the individual, Islam also cares for the foundation and values of society. Punishments such as imprisonment and exile for dangerous offenders have been legislated with the goal of protecting society (pp. 111-113).

'''Private and Public Deterrence:''' Creating fear and serving as an example for the offender themselves (private deterrence) and others (public deterrence) are among the clear objectives of punishments (p. 116). The intensification of punishment in the event of repeating the crime and the public execution of certain punishments are carried out with this very objective (p. 118).

'''Compensation for the Victim:''' In crimes where the rights of others are violated, the Lawgiver has paid attention to compensating for the loss and soothing the victim's suffering. Institutions such as [[blood money]] (''diyah''), the right to retribution (''qisas''), and the necessity of the complainant's consent in crimes involving the rights of people (''haqq al-nas'') show the importance of this objective (pp. 121-122).

== Objectives of Punishments in Sexual Crimes Warranting Hadd ==
This chapter first presents the punishment for [[sexual crimes]] warranting ''hadd'' (adultery/fornication, sodomy, and lesbianism), then examines the objectives of their punishment (pp. 125-178).

=== First Section: Punishment for Sexual Crimes Warranting Hadd and Their Judicial Proof ===
Regarding the punishment for fornication (''zina''), the famous theory of jurists is that at the beginning of Islam, its punishment was life imprisonment in the house ([[Verse 15 of Surah al-Nisa']]), but this ruling was abrogated by [[Verse 2 of Surah al-Nur]], which determined the punishment as one hundred lashes. Thereafter, one hundred lashes were designated for the punishment of fornication by an unmarried person (''ghayr muhsan''), and stoning (''rajm'') for adultery by a married person (''muhsan'') (pp. 131-132).

Regarding the punishment for sodomy (''liwat''), the famous theory of Shia jurists is [[execution]], but in the method of its execution, the ruler has the choice among methods such as killing with a sword, burning, [[stoning]], throwing from a height, or collapsing a wall upon him. Sunni jurists disagree on this matter; Abu Hanifa considers sodomy to warrant discretionary punishment (''ta'zir''), and Al-Shafi'i and Malik consider its ''hadd'' similar to the ''hadd'' for fornication/adultery (stoning or flogging depending on marital status [''ihsan'']) (p. 140).

Based on the famous fatwa of Shia jurists, lesbianism (''musahaqah'') is among the crimes warranting ''hadd'', carrying a punishment of one hundred lashes. In the event of repeating the crime and the ''hadd'' being executed three times, the perpetrator is executed on the fourth occasion. The majority of Sunni jurists consider lesbianism to warrant ''ta'zir'' (pp. 142-143).

In the author's belief, despite the severe punishments foreseen for these crimes, the Holy Lawgiver has been extremely strict in their judicial proof. Proving these crimes requires the testimony of four just men who have seen the act clearly and without any ambiguity; a matter which is practically almost impossible. Furthermore, [[spying/snooping]] (''tajassus'') to discover the sin and even looking at the crime scene to bear witness is not permissible. If the number of witnesses does not reach the required quorum, they themselves are sentenced to the ''hadd'' for false accusation of unchastity (''qadhf'') (eighty lashes) (pp. 143-144). The other way of proof is the individual's own confession, which must also be four times and in separate sessions. The conduct (''sirah'') of the Prophet (s) and Imam Ali (a) was to dissuade individuals from confessing and to encourage them to repent and cover up (pp. 144-147).

This entire set of strictures shows that the Lawgiver's main objective is preserving reputation, preventing unjust accusations, and providing the opportunity for repentance and reformation for wrongdoers, not punishing and disgracing individuals. In reality, the sensitivity of Islam's penal system is aimed more at preventing corruption from becoming public and spreading in society than being focused on the hidden sin itself (pp. 150-151).

=== Second Section: Objectives of Punishments in Sexual Crimes Warranting Hadd ===
By analyzing the totality of the regulations, the author arrives at the objectives of punishment in sexual crimes warranting ''hadd''. He believes that Islam's approach is not pure retributivism based on focusing on the crime and the moral responsibility of the criminal; rather, consequentialism exists within it as well; because factors such as repentance, doubt (''shubhah''), and the ruler's pardon can nullify the punishment (pp. 152-156).

The author explains the objectives of these punishments under the following headings:

'''Reformation and Rehabilitation of the Offender:''' This objective is the most central goal. The abundant emphasis on repentance and its acceptance for the nullification of the ''hadd'', and the Infallibles' (a) encouragement to repent instead of confessing, bear witness to this claim. By leaving the path of repentance open, the Lawgiver seeks the true reformation of the individual (pp. 157-162).

'''Private and Public Deterrence:''' Punishments such as flogging and exile, in addition to physical pain, deter the individual from repeating the crime by creating a sense of degradation. Executing the punishment in the presence of a group of believers is also with the goal of society drawing a lesson and strengthening public deterrence. However, Islam, by emphasizing the presence of a small group (''ta'ifah'') and not all the people, as well as setting conditions for those present, has prevented the execution of punishment from turning into a public spectacle that could cause irreparable damage to the individual's personality (pp. 162-165).

'''Restorative Justice:''' Islam's penal system pays special attention to compensating for loss and soothing the victim's suffering in crimes that have a specific victim (such as rape). In these cases, the nullification of the punishment through repentance is conditional upon obtaining the victim's consent, which shows the official recognition of the victim's rights in the penal process (pp. 170-174).

Ultimately, the author concludes that ''hadd'' punishments in [[sexual crimes]] have been established to protect values such as "[[chastity]]" and "sexual health," but the Lawgiver, through extreme strictness in proof and emphasis on repentance and covering up, has shown that He has no inclination toward the widespread execution of these punishments and His main goal is reformation and prevention (pp. 174-178).

== Objectives of Punishments in Discretionary (''Ta'ziri'') Sexual Crimes ==
This chapter examines the objectives of punishment in crimes whose nature is a moral error but do not reach the level of fornication and sodomy and have a "discretionary" (''ta'ziri'') punishment (at the discretion of the ruler).

=== First Section: Textually Specified (''Mansus'') Discretionary Sexual Crimes ===
By examining the crimes for which ''ta'zir'' has been determined in narrations, the author analyzes the Lawgiver's approach. Instances such as two non-mahram individuals sleeping under one cover, kissing out of lust, [[deflowering]], [[bestiality]], and masturbation have been condemned in narrations and ''ta'ziri'' punishments (such as flogging less than the ''hadd'' amount) have been mentioned for them (pp. 181-184). The author discusses deflowering, sexual intercourse with animals, masturbation, [[sexual intercourse with minors]], and [[sexual violence]] (pp. 185-201).

=== Second Section: Principles Governing Discretionary Sexual Crimes ===
By analyzing the previous discussions, the author extracts several principles for the ''ta'zir'' system in sexual crimes:

'''Difficulty of Judicial Proof:''' The strict approach and the inclination toward covering up that govern ''hudud'' flow a fortiori in ''ta'ziri'' crimes as well. Spying to discover hidden sins is forbidden, and the principle is non-penal intervention (pp. 203-207).

'''The Effect of Repentance:''' Repentance, just as it nullifies ''hudud'', also nullifies ''ta'ziri'' punishments, which possess the nature of a sin. In this case, even if doubt exists, the [[Maxim of Dar']] (warding off punishments) prevents the execution of punishment upon the repentant (pp. 211-219).

'''Diversity in Penal Sanctions:''' Unlike ''hudud'', in ''ta'zirat'' there is no obligation to use the punishment of flogging. The author rejects the idea that flogging is an ideal Islamic punishment and believes this punishment was a product of the culture and conditions of its time, and the Lawgiver, by delegating ''ta'zir'' to the ruler's opinion, has left the path open for the use of efficient, humane punishments suitable for every era (pp. 219-220).

'''The Necessity of Avoiding Punitive Extremism:''' The principle that [[Ta'zir is less than Hadd]] (''al-ta'zir bima duna al-hadd'') indicates the Lawgiver's tolerant approach in this domain. The ruler must content himself with the minimum punishment that secures the educational and deterrent objectives and avoid severity (pp. 220-224).

=== Third Section: Strategies for Determining the Objectives of Punishments ===
Considering the aforementioned principles, the author proposes the following strategies for determining the objectives of punishment in ''ta'ziri'' sexual crimes:

'''The Principle of Preventing Widespread Criminalization:''' Every forbidden (''haram'') act must not necessarily be considered a crime. [[Criminalization]] must be carried out based on public interest and with caution to prevent penal inflation (pp. 225-227).

'''The Principle of Preferring Covering Up:''' Regarding sexual errors that have a private aspect, the principle is encouraging repentance and concealment (''istitar''), and non-penal intervention (pp. 227-228).

'''The Principle of Minimal Use of Punishment to Defend Morality:''' The protection of moral values is not necessarily achieved through punishment; therefore, cultural and educational tools must be utilized, and punishment should be considered the last resort (pp. 228-230).

'''The Principle of Caring for the Reformation of the Offender:''' The main goal in these crimes must be the rehabilitation and reformation of the individual, not merely retribution (pp. 203-231).

'''The Principle of Proportionate Defense and Compensation:''' Where a crime damages the rights of others, one must react with proportionality and justice, and completely secure the rights of the victim (pp. 231-233).

'''The Principle of the Diversity and Humaneness of Punishments:''' A wide spectrum of penal reactions appropriate to the criminal's personality and the conditions of society, including alternative punishments, must be used, and the human dignity of the offender must be emphasized at all stages (pp. 234-238).

== Objectives of Punishments in Crimes Harmful to Public Morality ==
In this chapter, the author examines crimes that, unlike personal errors, directly target the public morality of society. By citing some Western thinkers, he shows that preserving public morality has always been a concern for legislators. In the contemporary era as well, with the expansion of technology, phenomena such as [[pornography]] and [[human trafficking]] have become serious challenges, and international human rights documents have also emphasized the necessity of protecting morality and public decency (pp. 241-244).

=== First Section: Penal Titles Appropriate to the Violation of Public Morality ===
In this section, among the crimes related to the [[violation of public morality]], the author examines three penal titles: "[[procuring (''qawwadi'')]]", "[[Enmity against God (''moharebeh'')|enmity against God (''muharabah'')]] and [[Corruption on earth|corruption on earth (''ifsad fi al-ard'')]]", and the "[[buying and selling of humans]]".

"Procuring" (''qawwadi'') in jurisprudence means bringing a man and a woman together for fornication or sodomy, and according to the famous opinion of Imami jurists, it warrants ''hadd'' (75 lashes and exile). Through a detailed critique of the evidences for this fatwa, the author concludes that ''qawwadi'' is a crime warranting ''ta'zir'', not ''hadd''. This conclusion opens the path for determining more appropriate and efficient punishments for the new and complex forms of ''qawwadi'' in today's world (pp. 247-265).

In the author's belief, some laws after the revolution have considered crimes such as operating centers of corruption or the production and distribution of obscene materials as instances of corruption on earth and warranting the ''hadd'' for ''muharabah''. By analyzing [[Verse 33 of Surah al-Ma'idah]], the author believes that corruption on earth cannot be considered an independent crime warranting ''hadd''. Also, generalizing this title to [[crimes against public morality]] lacks clear evidence and is contrary to the [[Principle of precaution|principle of precaution (''ihtiyat'')]] in blood and ''hudud'' (pp. 265-275).

In the author's belief, the buying and selling of humans, which is a clear instance of violating human dignity, is forbidden and void in Islam. Narrations that have determined the punishment of amputating the hand for the seller of a free human cannot be the basis for a ruling of ''hadd'' due to weakness in their chains of transmission; therefore, this crime also warrants ''ta'zir'' (pp. 275-281).

=== Second Section: Objectives of Penal Reaction to Crimes Against Public Morality ===
Considering previous examinations, the author explains three objectives in penal reactions to crimes against public morality:

'''Defense of Society and Public Morality:''' The main goal is the decisive defense of society and its values. The penal reaction must be efficient and deterrent enough that criminals, especially organized gangs, do not dare to transgress upon the sanctuary of public morality. In this domain, one cannot adhere to the strictures of proof that exist in ''hudud''; rather, the crime must be proven and combated using customary methods (pp. 283-286).

'''Compensation for the Victim of the Crime:''' In many of these crimes, there are specific victims (such as women and children) who require serious protection. The penal system must be such that the material and spiritual rights of these individuals are completely compensated (pp. 286-287).

'''Reformation and Rehabilitation of the Offender:''' Even in severe crimes, the objective of reformation and rehabilitation should not be neglected; rather, especially concerning situational offenders and those who themselves have been victims of circumstances, an educational approach must be taken, and the path for their return to society must be left open (p. 287).

== Execution of Hudud in the Event of Conflict (''Tazahum'') ==
The author poses this question: "If the execution of fixed ''hudud'' conflicts with more important expediencies and the intended objectives of them are not realized, what is the duty?" (p. 290). He then raises three headings:

'''Non-Realization of Expected Objectives:''' If the execution of a ''hadd'' (like flogging) in specific conditions has no deterrence, insisting on its execution is futile. Since punishments are a means and not a goal, with the non-realization of the goal, the means also loses its thematic relevance (''mawdu'iyyah'') (pp. 291-297).

'''Realization of Contradictory Effects:''' If the execution of a ''hadd'' brings about a reverse result (for instance, the public execution of a ''hadd'' upon a woman exposes her to greater harm, or executing a ''hadd'' in enemy territory causes the individual to join the disbelievers), by the judgment of intellect and citing the conduct of the Infallibles (a), one must refrain from executing it (pp. 298-301).

'''Conflict with Collateral Corruptions (''Mafasid''):''' Sometimes the execution of a ''hadd'' possesses an expediency, but entails a greater corruption; like unconventional harm to the convict, [[Maxim of No Hardship|severe hardship for the Islamic society]], or the alienation and aversion of the people from religion. Through a detailed analysis of the [[Maxim of the prohibition of alienating from religion]], the author shows that this maxim is a rational and Sharia principle that governs many primary rulings, including the execution of ''hudud''. If executing a ''hadd'' like stoning causes the degradation (''wahn'') of Islam and people's aversion to religion, the Islamic ruler is obliged to halt its execution. These expediency evaluations, which have a precedent in the conduct of the Prophet (s) and the Imams (a), do not mean the suspension (''ta'til'') of ''hudud'', but mean their wise execution and making them efficient (pp. 302-345).

The book concludes by presenting several approaches and suggestions. It is emphasized that since Islam's penal system is not a one-dimensional and retributivist system, but rather consequentialist and purposeful, it possesses the capacity, through dynamic and contemporary ''ijtihad'', to constantly maintain its efficiency and harmonize with the needs of every era (pp. 346-362).

[[Category:Bibliography Articles]]
[[Category:Books by Rahim Nowbahar]]
[[Category:Books on judicial jurisprudence]]
[[fa:اهداف مجازات‌ها در جرایم جنسی (کتاب)]]

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}}'''Abstract'''

'''The Objectives of Punishments in Sexual Crimes: An Islamic Perspective''' (اهداف مجازات‌ها در جرایم جنسی؛ چشم‌اندازی اسلامی), written by [[Rahim Nowbahar]], re-examines the philosophy of punishments in [[sexual crimes]] in Islamic jurisprudence with an objective-oriented approach (extracting Sharia purposes) and a holistic view (a comprehensive look at the various dimensions of the subject). Moving beyond a purely devotional (''ta'abbudi'') perspective, this work argues that in Islam, punishments are tools for realizing transcendent goals such as executing justice, rehabilitating the offender, and deterrence.

By distinguishing between "individual lapses" and "crimes against public morality," this book shows that the Lawgiver's (''Shari''') approach toward these two categories is entirely different. In the first type, by making the methods of proof difficult, the emphasis is placed on covering up (''pardeh-pushi'') and repentance (''tawbah''), but in the second type, the main goal is the decisive defense of social values. Ultimately, by analyzing the "conflict" (''tazahum'') between executing prescribed punishments (''hudud'') and higher interests (such as avoiding the [[Maxim of alienating from religion|alienation from religion]]), the research concludes that the Islamic penal system is flexible and dynamic. In it, the Islamic sovereignty can and must, for the realization of the true objectives of punishments, apply necessary changes in the quality and even the very execution of punishments through [[Maxim of Expediency|expediency evaluation]] (''maslahat-sanji'').

== Brief Overview ==
The book The Objectives of Punishments in Sexual Crimes: An Islamic Perspective, penned by Rahim Nowbahar, is among the books of judicial jurisprudence with a focus on sexual crimes. This book was first published by the [[Islamic Sciences and Culture Academy]] in 2010 (1389 SH) in 408 pages.

=== Structure of the Book ===
This research is organized into an introduction and five main chapters: The first chapter presents the theoretical foundations and methods for recognizing the objectives of Islamic punishments (pp. 56-126). The second chapter analyzes the objectives of punishments in [[sexual crimes]] warranting *hadd* (adultery/fornication [*zina*], sodomy [*liwat*], and lesbianism [*musahaqah*]), with an emphasis on the difficulty of proof and the principle of covering up (pp. 127-180). The third chapter is dedicated to discretionary (''ta'ziri'') sexual crimes that have the nature of an individual error (pp. 180-239). The fourth chapter examines crimes against public morality (such as [[procuring (''qawwadi'')]]) (pp. 241-288). The final chapter addresses the discussion of the conflict (''tazahum'') between executing *hudud* and higher interests, such as the maxim of "[[Maxim of No Hardship|social hardship of Muslims]]" and the "[[Prohibition of alienating from religion|prohibition of alienating from religion]]" (pp. 291-406).

== Objectives of Islamic Punishments ==
=== First Section: Ways of Discovering the Objectives of Islamic Punishments ===
In the author's belief, several ways can be utilized to discover the objectives of punishments in Islam:

'''Recognizing the General Objectives of Islam:''' Principles such as justice, which is one of the goals of the prophets' mission, and purification (''tazkiyah''), mercy (''rahmah''), and dignity (''karamah''), which are employed for the reformation of the individual, are strategic principles for directing the goals of the penal system (pp. 56-59).

'''Deduction from the Text and the Apparent Meaning of Texts:''' By contemplating verses and narrations, as well as the rationale and wisdom mentioned for certain rulings, one can discover the objectives of the Lawgiver. On this path, one should not content oneself with definitive texts (''nusus''); rather, valid apparent meanings (''zawahir'') and even the understanding derived from the totality of the evidences (the spirit of the law) are also authoritative (''hujjah'') (pp. 59-69).

'''Studying the History of Punishments:''' Examining the historical background of punishments and the developments that occurred in their execution during the time of the Infallibles (a) is very illuminating. For example, the change in the punishment for drinking alcohol from forty lashes to eighty lashes during the time of the second Caliph. This change, which occurred with the suggestion of Imam Ali (a) and because the previous punishment was not a deterrent, shows that "deterrence" is one of the key objectives (pp. 69-70).

'''Whether Punishments are Endorsed (''Imda'i'') or Established (''Ta'sisi''):''' Almost all corporal punishments in Islam (stoning [*rajm*], flogging, amputation of the hand) were prevalent before Islam as well. Now, did the Lawgiver consider these punishments a rational practice and endorse them with the condition of "being prevalent" (restrictive aspect or *haythiyyat taqyidiyyah''), or was the reason for the Lawgiver's endorsement solely their prevalence (causative aspect or *haythiyyat ta'liliyyah'')? If the condition of prevalence is part of the subject (''mawdu'''), then with the disappearance of the rational prevalence of a punishment, the subject of the ruling is also nullified. This discussion raises the possibility of changing punishments based on social and cultural developments (pp. 74-75).

'''The Type of Punishments and the Method of Their Execution:''' The type of punishments (such as [[execution]] or [[imprisonment]]) and the manner of their execution (publicly or privately) can indicate the legislator's objectives. Islam's emphasis on executing punishment in the presence of a group of believers indicates the aspect of public deterrence and universal supervision (pp. 84-85).

'''Cases of the Nullification (''Suqut'') of Punishments:''' Factors such as repentance (''tawbah''), the complainant's forgiveness, and the ruler's pardon, which cause the nullification of the punishment, show that the rehabilitation of the offender and compensation for the victim's loss are among the important objectives of Islam's penal system (pp. 86-87).

'''The Ruling of Punishments in the Assumption of Conflict (''Tazahum''):''' Sometimes a conflict arises between the [[expediency]] (''maslahah'') of executing a punishment and other expediencies or corruptions (''mafasid''); scrutinizing the legislator's rulings in cases of conflict regarding the execution of a punishment or overlooking it reveals the legislator's attitude toward punishment and its objectives (p. 87).

=== Second Section: Objectives of Islamic Punishments ===
The author explains the objectives of Islamic punishments as follows:

'''Execution of Justice:''' Justice is the ultimate goal of the prophets' mission and the spirit governing all Islamic rulings; the emphasis on "retribution in kind" (''qisas bi al-mithl'') and the prohibition of extravagance in killing are manifestations of this fundamental goal. Islamic justice pays attention to expediency evaluation and consequentialism, and is mingled with pardon and mercy (pp. 99-106).

'''Reformation and Rehabilitation of the Offender:''' Purification and upbringing are among the main goals of religion. The prominent role of repentance in the nullification of many punishments and the religious leaders' emphasis on the reformation of and clemency toward the offender clearly show that rehabilitation and returning the individual to society are among the important goals of Islamic punishments (pp. 107-109).

'''Defense of Society and Its Values:''' Alongside attention to the individual, Islam also cares for the foundation and values of society. Punishments such as imprisonment and exile for dangerous offenders have been legislated with the goal of protecting society (pp. 111-113).

'''Private and Public Deterrence:''' Creating fear and serving as an example for the offender themselves (private deterrence) and others (public deterrence) are among the clear objectives of punishments (p. 116). The intensification of punishment in the event of repeating the crime and the public execution of certain punishments are carried out with this very objective (p. 118).

'''Compensation for the Victim:''' In crimes where the rights of others are violated, the Lawgiver has paid attention to compensating for the loss and soothing the victim's suffering. Institutions such as [[blood money]] (''diyah''), the right to retribution (''qisas''), and the necessity of the complainant's consent in crimes involving the rights of people (''haqq al-nas'') show the importance of this objective (pp. 121-122).

== Objectives of Punishments in Sexual Crimes Warranting Hadd ==
This chapter first presents the punishment for [[sexual crimes]] warranting *hadd* (adultery/fornication, sodomy, and lesbianism), then examines the objectives of their punishment (pp. 125-178).

=== First Section: Punishment for Sexual Crimes Warranting Hadd and Their Judicial Proof ===
Regarding the punishment for fornication (''zina''), the famous theory of jurists is that at the beginning of Islam, its punishment was life imprisonment in the house ([[Verse 15 of Surah al-Nisa']]), but this ruling was abrogated by [[Verse 2 of Surah al-Nur]], which determined the punishment as one hundred lashes. Thereafter, one hundred lashes were designated for the punishment of fornication by an unmarried person (''ghayr muhsan''), and stoning (''rajm'') for adultery by a married person (''muhsan'') (pp. 131-132).

Regarding the punishment for sodomy (''liwat''), the famous theory of Shia jurists is [[execution]], but in the method of its execution, the ruler has the choice among methods such as killing with a sword, burning, [[stoning]], throwing from a height, or collapsing a wall upon him. Sunni jurists disagree on this matter; Abu Hanifa considers sodomy to warrant discretionary punishment (''ta'zir''), and Al-Shafi'i and Malik consider its *hadd* similar to the *hadd* for fornication/adultery (stoning or flogging depending on marital status [*ihsan*]) (p. 140).

Based on the famous fatwa of Shia jurists, lesbianism (''musahaqah'') is among the crimes warranting *hadd*, carrying a punishment of one hundred lashes. In the event of repeating the crime and the *hadd* being executed three times, the perpetrator is executed on the fourth occasion. The majority of Sunni jurists consider lesbianism to warrant *ta'zir* (pp. 142-143).

In the author's belief, despite the severe punishments foreseen for these crimes, the Holy Lawgiver has been extremely strict in their judicial proof. Proving these crimes requires the testimony of four just men who have seen the act clearly and without any ambiguity; a matter which is practically almost impossible. Furthermore, [[spying/snooping]] (''tajassus'') to discover the sin and even looking at the crime scene to bear witness is not permissible. If the number of witnesses does not reach the required quorum, they themselves are sentenced to the *hadd* for false accusation of unchastity (''qadhf'') (eighty lashes) (pp. 143-144). The other way of proof is the individual's own confession, which must also be four times and in separate sessions. The conduct (''sirah'') of the Prophet (s) and Imam Ali (a) was to dissuade individuals from confessing and to encourage them to repent and cover up (pp. 144-147).

This entire set of strictures shows that the Lawgiver's main objective is preserving reputation, preventing unjust accusations, and providing the opportunity for repentance and reformation for wrongdoers, not punishing and disgracing individuals. In reality, the sensitivity of Islam's penal system is aimed more at preventing corruption from becoming public and spreading in society than being focused on the hidden sin itself (pp. 150-151).

=== Second Section: Objectives of Punishments in Sexual Crimes Warranting Hadd ===
By analyzing the totality of the regulations, the author arrives at the objectives of punishment in sexual crimes warranting *hadd*. He believes that Islam's approach is not pure retributivism based on focusing on the crime and the moral responsibility of the criminal; rather, consequentialism exists within it as well; because factors such as repentance, doubt (''shubhah''), and the ruler's pardon can nullify the punishment (pp. 152-156).

The author explains the objectives of these punishments under the following headings:

'''Reformation and Rehabilitation of the Offender:''' This objective is the most central goal. The abundant emphasis on repentance and its acceptance for the nullification of the *hadd*, and the Infallibles' (a) encouragement to repent instead of confessing, bear witness to this claim. By leaving the path of repentance open, the Lawgiver seeks the true reformation of the individual (pp. 157-162).

'''Private and Public Deterrence:''' Punishments such as flogging and exile, in addition to physical pain, deter the individual from repeating the crime by creating a sense of degradation. Executing the punishment in the presence of a group of believers is also with the goal of society drawing a lesson and strengthening public deterrence. However, Islam, by emphasizing the presence of a small group (''ta'ifah'') and not all the people, as well as setting conditions for those present, has prevented the execution of punishment from turning into a public spectacle that could cause irreparable damage to the individual's personality (pp. 162-165).

'''Restorative Justice:''' Islam's penal system pays special attention to compensating for loss and soothing the victim's suffering in crimes that have a specific victim (such as rape). In these cases, the nullification of the punishment through repentance is conditional upon obtaining the victim's consent, which shows the official recognition of the victim's rights in the penal process (pp. 170-174).

Ultimately, the author concludes that *hadd* punishments in [[sexual crimes]] have been established to protect values such as "[[chastity]]" and "sexual health," but the Lawgiver, through extreme strictness in proof and emphasis on repentance and covering up, has shown that He has no inclination toward the widespread execution of these punishments and His main goal is reformation and prevention (pp. 174-178).

== Objectives of Punishments in Discretionary (''Ta'ziri'') Sexual Crimes ==
This chapter examines the objectives of punishment in crimes whose nature is a moral error but do not reach the level of fornication and sodomy and have a "discretionary" (''ta'ziri'') punishment (at the discretion of the ruler).

=== First Section: Textually Specified (''Mansus'') Discretionary Sexual Crimes ===
By examining the crimes for which *ta'zir* has been determined in narrations, the author analyzes the Lawgiver's approach. Instances such as two non-mahram individuals sleeping under one cover, kissing out of lust, [[deflowering]], [[bestiality]], and masturbation have been condemned in narrations and *ta'ziri* punishments (such as flogging less than the *hadd* amount) have been mentioned for them (pp. 181-184). The author discusses deflowering, sexual intercourse with animals, masturbation, [[sexual intercourse with minors]], and [[sexual violence]] (pp. 185-201).

=== Second Section: Principles Governing Discretionary Sexual Crimes ===
By analyzing the previous discussions, the author extracts several principles for the *ta'zir* system in sexual crimes:

'''Difficulty of Judicial Proof:''' The strict approach and the inclination toward covering up that govern *hudud* flow a fortiori in *ta'ziri* crimes as well. Spying to discover hidden sins is forbidden, and the principle is non-penal intervention (pp. 203-207).

'''The Effect of Repentance:''' Repentance, just as it nullifies *hudud*, also nullifies *ta'ziri* punishments, which possess the nature of a sin. In this case, even if doubt exists, the [[Maxim of Dar']] (warding off punishments) prevents the execution of punishment upon the repentant (pp. 211-219).

'''Diversity in Penal Sanctions:''' Unlike *hudud*, in *ta'zirat* there is no obligation to use the punishment of flogging. The author rejects the idea that flogging is an ideal Islamic punishment and believes this punishment was a product of the culture and conditions of its time, and the Lawgiver, by delegating *ta'zir* to the ruler's opinion, has left the path open for the use of efficient, humane punishments suitable for every era (pp. 219-220).

'''The Necessity of Avoiding Punitive Extremism:''' The principle that [[Ta'zir is less than Hadd]] (''al-ta'zir bima duna al-hadd'') indicates the Lawgiver's tolerant approach in this domain. The ruler must content himself with the minimum punishment that secures the educational and deterrent objectives and avoid severity (pp. 220-224).

=== Third Section: Strategies for Determining the Objectives of Punishments ===
Considering the aforementioned principles, the author proposes the following strategies for determining the objectives of punishment in *ta'ziri* sexual crimes:

'''The Principle of Preventing Widespread Criminalization:''' Every forbidden (''haram'') act must not necessarily be considered a crime. [[Criminalization]] must be carried out based on public interest and with caution to prevent penal inflation (pp. 225-227).

'''The Principle of Preferring Covering Up:''' Regarding sexual errors that have a private aspect, the principle is encouraging repentance and concealment (''istitar''), and non-penal intervention (pp. 227-228).

'''The Principle of Minimal Use of Punishment to Defend Morality:''' The protection of moral values is not necessarily achieved through punishment; therefore, cultural and educational tools must be utilized, and punishment should be considered the last resort (pp. 228-230).

'''The Principle of Caring for the Reformation of the Offender:''' The main goal in these crimes must be the rehabilitation and reformation of the individual, not merely retribution (pp. 203-231).

'''The Principle of Proportionate Defense and Compensation:''' Where a crime damages the rights of others, one must react with proportionality and justice, and completely secure the rights of the victim (pp. 231-233).

'''The Principle of the Diversity and Humaneness of Punishments:''' A wide spectrum of penal reactions appropriate to the criminal's personality and the conditions of society, including alternative punishments, must be used, and the human dignity of the offender must be emphasized at all stages (pp. 234-238).

== Objectives of Punishments in Crimes Harmful to Public Morality ==
In this chapter, the author examines crimes that, unlike personal errors, directly target the public morality of society. By citing some Western thinkers, he shows that preserving public morality has always been a concern for legislators. In the contemporary era as well, with the expansion of technology, phenomena such as [[pornography]] and [[human trafficking]] have become serious challenges, and international human rights documents have also emphasized the necessity of protecting morality and public decency (pp. 241-244).

=== First Section: Penal Titles Appropriate to the Violation of Public Morality ===
In this section, among the crimes related to the [[violation of public morality]], the author examines three penal titles: "[[procuring (''qawwadi'')]]", "[[Enmity against God (''moharebeh'')|enmity against God (''muharabah'')]] and [[Corruption on earth|corruption on earth (''ifsad fi al-ard'')]]", and the "[[buying and selling of humans]]".

"Procuring" (''qawwadi'') in jurisprudence means bringing a man and a woman together for fornication or sodomy, and according to the famous opinion of Imami jurists, it warrants *hadd* (75 lashes and exile). Through a detailed critique of the evidences for this fatwa, the author concludes that *qawwadi* is a crime warranting *ta'zir*, not *hadd*. This conclusion opens the path for determining more appropriate and efficient punishments for the new and complex forms of *qawwadi* in today's world (pp. 247-265).

In the author's belief, some laws after the revolution have considered crimes such as operating centers of corruption or the production and distribution of obscene materials as instances of corruption on earth and warranting the *hadd* for *muharabah*. By analyzing [[Verse 33 of Surah al-Ma'idah]], the author believes that corruption on earth cannot be considered an independent crime warranting *hadd*. Also, generalizing this title to [[crimes against public morality]] lacks clear evidence and is contrary to the [[Principle of precaution|principle of precaution (''ihtiyat'')]] in blood and *hudud* (pp. 265-275).

In the author's belief, the buying and selling of humans, which is a clear instance of violating human dignity, is forbidden and void in Islam. Narrations that have determined the punishment of amputating the hand for the seller of a free human cannot be the basis for a ruling of *hadd* due to weakness in their chains of transmission; therefore, this crime also warrants *ta'zir* (pp. 275-281).

=== Second Section: Objectives of Penal Reaction to Crimes Against Public Morality ===
Considering previous examinations, the author explains three objectives in penal reactions to crimes against public morality:

'''Defense of Society and Public Morality:''' The main goal is the decisive defense of society and its values. The penal reaction must be efficient and deterrent enough that criminals, especially organized gangs, do not dare to transgress upon the sanctuary of public morality. In this domain, one cannot adhere to the strictures of proof that exist in *hudud*; rather, the crime must be proven and combated using customary methods (pp. 283-286).

'''Compensation for the Victim of the Crime:''' In many of these crimes, there are specific victims (such as women and children) who require serious protection. The penal system must be such that the material and spiritual rights of these individuals are completely compensated (pp. 286-287).

'''Reformation and Rehabilitation of the Offender:''' Even in severe crimes, the objective of reformation and rehabilitation should not be neglected; rather, especially concerning situational offenders and those who themselves have been victims of circumstances, an educational approach must be taken, and the path for their return to society must be left open (p. 287).

== Execution of Hudud in the Event of Conflict (''Tazahum'') ==
The author poses this question: "If the execution of fixed *hudud* conflicts with more important expediencies and the intended objectives of them are not realized, what is the duty?" (p. 290). He then raises three headings:

'''Non-Realization of Expected Objectives:''' If the execution of a *hadd* (like flogging) in specific conditions has no deterrence, insisting on its execution is futile. Since punishments are a means and not a goal, with the non-realization of the goal, the means also loses its thematic relevance (''mawdu'iyyah'') (pp. 291-297).

'''Realization of Contradictory Effects:''' If the execution of a *hadd* brings about a reverse result (for instance, the public execution of a *hadd* upon a woman exposes her to greater harm, or executing a *hadd* in enemy territory causes the individual to join the disbelievers), by the judgment of intellect and citing the conduct of the Infallibles (a), one must refrain from executing it (pp. 298-301).

'''Conflict with Collateral Corruptions (''Mafasid''):''' Sometimes the execution of a *hadd* possesses an expediency, but entails a greater corruption; like unconventional harm to the convict, [[Maxim of No Hardship|severe hardship for the Islamic society]], or the alienation and aversion of the people from religion. Through a detailed analysis of the [[Maxim of the prohibition of alienating from religion]], the author shows that this maxim is a rational and Sharia principle that governs many primary rulings, including the execution of *hudud*. If executing a *hadd* like stoning causes the degradation (''wahn'') of Islam and people's aversion to religion, the Islamic ruler is obliged to halt its execution. These expediency evaluations, which have a precedent in the conduct of the Prophet (s) and the Imams (a), do not mean the suspension (''ta'til'') of *hudud*, but mean their wise execution and making them efficient (pp. 302-345).

The book concludes by presenting several approaches and suggestions. It is emphasized that since Islam's penal system is not a one-dimensional and retributivist system, but rather consequentialist and purposeful, it possesses the capacity, through dynamic and contemporary *ijtihad*, to constantly maintain its efficiency and harmonize with the needs of every era (pp. 346-362).

[[Category:Bibliography Articles]]
[[Category:Books by Rahim Nowbahar]]
[[Category:Books on judicial jurisprudence]]
[[fa:اهداف مجازات‌ها در جرایم جنسی (کتاب)]]

File:Nuclear Energy from the Perspective of Imami Fiqh.jpg

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Nuclear Energy from the Perspective of Imami Fiqh (Book)

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Enadmin: Created page with "{{author |author = Mahmoud Sadeqi |author2 = |author3 = |compiler = |editor1 = |editor2 = |editor3 = }} {{infobox book | title = Nuclear Energy from the Perspective of Imami Fiqh | image = Nuclear_Energy_from_the_Perspective_of_Imami_Fiqh.jpg | image_size = | image_caption = | other_names = | author = Mohammad Javad Heydarian Dowlatabadi | date_of_writing = | subject = Nuclear Energy | genre = Descriptive-Analytical, Inferential Jurisprudence | language = Persi..."

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* '''Abstract'''
'''Nuclear Energy from the Perspective of Imami Fiqh''' (انرژی هسته‌ای از منظر فقه امامیه) is a book examining the jurisprudential dimensions of producing and utilizing [[nuclear energy]]. Mohammad Javad Heydarian Dowlatabadi authored this book in Persian in four chapters. In this book, he investigates the jurisprudential maxims (''qawa'id fiqhiyyah'') cited for the permissibility of the peaceful use of nuclear energy, the maxims prohibiting the production and use of nuclear weapons, and the maxims of liability (''daman'') and civil responsibility concerning the use of nuclear energy.

In the third chapter, by citing the [[Maxim of the Negation of Domination|Maxim of the Negation of Domination]] (''nafy al-sabil''), the preliminary of an obligatory act (''muqaddamat al-wajib''), and [[Maxim of Expediency|expediency]] (''maslahah''), the author advocates for the permissibility of the peaceful production and use of nuclear energy. In his view, according to the Maxim of the Negation of Domination, this energy will play an important role in the empowerment of Muslims and in preventing the domination of disbelievers (''kuffar''). Also, according to him, based on the maxim of the preliminary of an obligatory act, securing energy through nuclear energy is introduced as a way to provide welfare for the Islamic society. Ultimately, the author states that in the contemporary era, the Guardian Jurist (''Wali al-Faqih'') can, based on the Maxim of Expediency, deem the production of nuclear energy essential, and this ruling is binding for everyone.

In the fourth chapter, relying on maxims such as the [[Maxim of Burden|Maxim of Burden]] (''qa'idat al-wizr''), the principle of fulfilling covenants (''wafa' bi al-'ahd''), the [[Maxim of Compulsion|Maxim of Compulsion]] (''ilzam''), and the maxim of the prohibition of terror, the author believes in the prohibition of using [[Weapons of mass destruction|nuclear weapons]]. According to him, the use of nuclear weapons leads to the killing of innocent human beings, which is prohibited according to the Maxim of Burden. By citing the necessity of fulfilling covenants in international treaties such as the NPT, he does not consider the production of nuclear weapons permissible from a jurisprudential viewpoint. The author also, by citing narrations on the prohibition of using poison in war and comparing it with nuclear weapons, advocates for the prohibition of such weapons. The maxim of the prohibition of terror also serves as the author's documentary evidence for the prohibition of using weapons of mass destruction, as he considers it an advanced form of terror. The maxim of the obligation to repel probable harm (''wujub daf' al-darar al-muhtamal'') is also raised by him, concluding its prohibition due to the dangerous consequences of using nuclear weapons.

The author also believes, by citing the Maxim of Destruction (''itlaf'') and Causation (''tasbib''), that any damage resulting from the peaceful use of nuclear energy must be compensated by the user to the injured party.

== Overview and Structure of the Book ==
Nuclear Energy from the Perspective of Imami Fiqh is a Persian book concerning the production and use of nuclear energy, authored in four chapters by Mohammad Javad Heydarian Dowlatabadi and published in 2019 (1398 SH) by Chatr-e Danesh Publications.

In the first chapter, the author elucidates the concept of nuclear energy, its history in Iran and the world, the importance of this energy, and the economic, social, and environmental considerations related to it (pp. 13-23). The second chapter of the book is dedicated to the various applications of nuclear energy, including electricity generation, use in the medical and health sectors, veterinary medicine, animal husbandry, agriculture, water resources management, and industry (pp. 30-48). In this chapter, the author also examines the jurisprudential requirements for employing nuclear energy in various fields and, by citing the [[Maxim of Destruction]] (''itlaf'') and the [[Maxim of Causation]] (''tasbib''), provides documentary evidence for Sharia liability (''daman'') and civil responsibility regarding damages arising from this energy (pp. 49-62).

The third chapter of the book investigates the jurisprudential reasons for the permissibility of the production and [[peaceful use of nuclear energy]]. In this chapter, the author examines the role of maxims such as the [[Maxim of the Negation of Domination|Negation of Domination]] (''nafy al-sabil'') (pp. 67-86), the [[Maxim of the preliminary of an obligatory act|preliminary of an obligatory act]] (''muqaddamat al-wajib'') (pp. 87-110), and [[Maxim of Expediency|expediency]] (''maslahah'') in legitimizing the peaceful production and use of nuclear energy (pp. 110-144). In the fourth chapter, the author expounds upon the jurisprudential foundations and maxims regarding the [[prohibition of using nuclear weapons]]. In this chapter, he examines the [[Maxim of Burden]] (''wizr'') (pp. 146-151), the [[Principle of fulfilling covenants|principle of fulfilling covenants]] (p. 154), the [[Principle of not imposing the religion of Islam on others|principle of not imposing the religion of Islam on others]] (p. 162), and the [[Maxim of Compulsion|Maxim of Compulsion]] (''ilzam'') (p. 163). Furthermore, he elucidates the viewpoints of jurists (''fuqaha'') concerning [[Incendiary weapons|incendiary weapons]] (p. 175), the [[Prohibition of terror|prohibition of terror]] (p. 176), the prohibition of [[Assassination|assassination]] (''ightiyal'') (p. 182), the prohibition of transgression (''ta'addi'') (p. 183), and the [[Maxim of the obligation to repel probable harm]] (p. 189).

== Evidences for the Permissibility of Producing Nuclear Energy ==
In the third chapter, the author examines the jurisprudential maxims (''qawa'id fiqhiyyah'') cited for the permissibility of producing peaceful nuclear energy (p. 67).

=== Maxim of the Negation of Domination (''Nafy al-Sabil'') ===
In the author's belief, powerful countries are those that are more advanced in the field of modern sciences and technologies, including the use of peaceful nuclear energy, and this very factor will lead to playing an effective role in the world. He believes that, based on the [[Maxim of the Negation of Domination]], obtaining and peacefully utilizing nuclear energy is a necessity today; because it aids the empowerment and stability of Muslim countries (p. 67). The author also believes that there is a reciprocal relationship between the Maxim of the Negation of Domination and the production of nuclear energy; because producing peaceful nuclear energy prevents the domination and supremacy of enemies over Muslims (pp. 83-86).

=== Maxim of the Preliminary of an Obligatory Act (''Muqaddamat al-Wajib'') ===
To permit, or even mandate, obtaining peaceful nuclear energy technology, the author also utilizes the [[Maxim of the preliminary of an obligatory act]] (p. 87). In this regard, he emphasizes that one of the fundamental duties of governments is striving to secure the welfare and comfort of the people; a welfare and comfort that is defined in every era according to the conditions of that time. In his belief, in the present age, one of the main indicators of welfare is securing energy, and given the ever-increasing depletion of fossil fuel resources, the high costs of extraction, and the resulting environmental damages, human societies are compelled to replace these resources. The author believes that nuclear energy, as one of the cleanest, most economical, and most efficient energy sources, has the capability to replace fossil fuels. Therefore, from the perspective of the maxim of the preliminary of an obligatory act, it is obligatory upon the Islamic ruler to strive for the production of nuclear energy so that through it, the welfare and comfort of the Islamic community (''ummah'') are secured (pp. 109-110).

=== Maxim of Expediency (''Maslahah'') ===
Another maxim cited by the author to legitimize peaceful nuclear activities is the [[Maxim of Expediency]] (p. 110). This maxim is applied in situations where an issue lacks a definitive ruling of obligation or prohibition, but the Islamic ruler, considering the expediencies, declares that issue obligatory or prohibited (p. 111). He examines several methods for discerning expediency, including: benefit (p. 125), necessity (p. 126), the number of individuals in the society (p. 128), effectiveness (p. 130), harmony with the objectives of Sharia (''maqasid al-shari'ah'') (p. 132), and observing the rule of the more important over the important (''al-ahamm wa al-muhimm'') (p. 134). The author believes that expediency finds meaning in conditions of conflict and emergency, and is used to solve a problem and prefer some rulings over others. Also, expediency is implemented when both sides of the matter possess importance and combining them is impossible; however, in cases where the two sides do not have much importance, the Maxim of Expediency is not applied (p. 117).

Based on the parameters established for implementing the Maxim of Expediency, the author emphasizes that to implement this maxim in the field of peaceful nuclear energy, one must refer to a jurist (''faqih''), because a contrary ruling might have been issued by the Lawgiver (''Shari''') in matters other than independent rational judgments (''mustaqillat 'aqliyyah''). Therefore, it is essential for a non-jurist to refer to a jurist in these cases (pp. 118 and 120-123). In his belief, in the contemporary era, the fully qualified Guardian Jurist (''Wali al-Faqih''), as the ruler of the society, can, based on certain expediencies, deem the production of peaceful nuclear energy a necessary and essential matter, and it is obligatory upon everyone to follow him (p. 144).

== Prohibition of Using Nuclear Weapons ==
The use of unconventional weapons such as nuclear, biological, and chemical weapons has been declared forbidden (''haram'') in Islam. By stating this jurisprudential ruling, the author mentions the maxims and reasons by which one can elucidate the jurisprudential foundations for the prohibition of using [[nuclear weapons]] (p. 145).

=== Maxim of Burden (''Wizr'') ===
One of the maxims that the author believes can be used to prove the prohibition of the production and use of nuclear weapons is the [[Maxim of Burden]]. According to him, based on this maxim, killing innocent human beings due to the sins of some wrongdoers is not permissible, whereas by using such weapons, many innocent individuals will be killed. This maxim has not been posited independently in the works of past and later scholars; but whenever it has been utilized, it has relied on [[Verse 164 of Surah al-An'am]], namely "[[and no bearer of burdens will bear the burden of another]]" (''wa la taziru waziratun wizra ukhra'') (pp. 146-151).

=== Maxim of Fulfilling Covenants ===
Pointing to the [[Principle of fulfilling covenants]], the author believes that a commitment is a kind of binding contract that is highly emphasized in Islam and is considered a foundation for peaceful international relations (p. 154). By citing the conduct (''sirah'') of the Messenger of God (s) in adhering to his covenant with the disbelievers of Quraysh (p. 155) and Imam Ali's (a) faithfulness to his pacts (p. 156), he states that, based on certain international laws and the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), countries are committed not to produce these weapons; therefore, considering the principle of the necessity of fulfilling covenants, the production of nuclear weapons is forbidden from the perspective of Islamic jurisprudence (p. 157). According to the author, observing ethical principles in war from the perspective of Islam is a certain and undeniable matter. Based on this, Muslims are not permitted to commit just any act during wartime (p. 157).

=== Maxim of Compulsion (''Ilzam'') ===
In the author's belief, one of the maxims cited for the prohibition of using nuclear weapons is the [[Maxim of Compulsion]]. He believes that the prohibition of using these weapons can be proven by citing the prohibition of using poison in war. In the author's view, although chemical, biological, and nuclear weapons did not exist during the time of the Prophet (s) and the Imams (a), from the stance of the Ahl al-Bayt (a) regarding the use of poison in war, this ruling can be generalized to today's unconventional weapons, and their use can be considered forbidden (p. 168). According to the author's opinion, although there are numerous narrations concerning the prohibition of using poison in war, the primary criterion for this prohibition is the unconventional nature of the weapon and the mass killing resulting from it. Therefore, in the contemporary era, nuclear, biological, and chemical weapons also possess these two characteristics: firstly, they are unconventional, and secondly, they cause the widespread killing of innocent individuals; hence, their use is not permissible (p. 169).

The author points out that many jurists, including Shaykh al-Tusi, Ibn Idris, Muhaqqiq al-Thani, al-Shahid al-Awwal, al-Shahid al-Thani, Allamah al-Hilli, and the author of *Jawahir*, based on these narrations, have declared the use of poison and unconventional weapons forbidden, both in war and outside of war (pp. 170-172). Additionally, many contemporary sources of emulation (''maraji' al-taqlid''), including the Supreme Leader and Ayatollah Makarem Shirazi, have deemed the use of unconventional weapons of war, such as nuclear, biological, and chemical weapons, to be forbidden (p. 173).

=== Prohibition of Using Incendiary Weapons ===
According to Heydarian, among the reasons by which the use of nuclear weapons can be deemed forbidden are narrations in which the use of incendiary weapons has been explicitly prohibited. Based on this, considering these narrations, one can conclude that the use of atomic and nuclear weapons, which today cause widespread fires in the environment, is forbidden (p. 174). He also refers to some opinions of Shia jurists such as Muhaqqiq al-Hilli and Muhaqqiq al-Thani, and believes that according to narrations and the edicts (''fatawa'') of jurists, the use of unconventional armaments in war is forbidden, because these armaments are recognized as instances of incendiary weapons (p. 175).

=== Maxim of the Prohibition of Terror ===
According to the author, narrations prohibiting the terrorizing of individuals in non-war conditions can be among the reasons cited for the prohibition of using tools of mass destruction such as nuclear weapons. He states that the use of tools of mass destruction in the contemporary era is considered an advanced form of terror; therefore, it is covered by the evidences of prohibition (pp. 176-187). The author subsequently considers assassination (''ightiyal'') to be like terror, which is prohibited in war (p. 182).

The author also concludes from the maxim of the prohibition of transgression (''ta'addi'') that the excessive use of unconventional tools that cause mass killing is forbidden; beyond this, based on numerous verses and narrations, he believes that the use of these tools is considered forbidden both in war and outside of war (p. 183). In this context, Heydarian points to some Shia and Sunni narrations that confirm the prohibition of aggression (pp. 177-186). Furthermore, the viewpoints of some Shia jurists regarding the use of tools of war that lead to mass killing are mentioned subsequently (p. 188).

=== Maxim of the Obligation to Repel Probable Harm ===
According to the author, based on the [[Maxim of the obligation to repel probable harm]], the use of nuclear weapons is not permissible; because employing these weapons causes others to rise in retaliation, resulting in the killing of innocent individuals. Therefore, to prevent the occurrence of these wars and the casualties arising from them, the use of nuclear weapons and mass killing is unauthorized (pp. 189-190).

== Liability (''Daman'') and Civil Responsibility in the Use of Nuclear Energy ==
In a part of the second chapter of the book, the author raises the issue of the potential harms of using nuclear energy and the resulting damages to the human and non-human [[Environmental destruction|environment]]. By citing maxims such as the [[Maxim of Destruction]] (''itlaf'') and the [[Maxim of Causation]] (''tasbib''), he advocates for Sharia liability (''daman'') and justifies the civil responsibility of utilizing peaceful nuclear energy in Islam (p. 48).

=== Maxim of Destruction (''Itlaf'') ===
Pointing to the opinion of jurists who cite the Maxim of Destruction to prove Sharia liability and civil responsibility, the author believes this maxim can also be cited in the field of peaceful nuclear energy. To explain how to cite the Maxim of Destruction to justify the legitimacy of Sharia liability and civil responsibility in the use of peaceful nuclear energy, he points to several points in this regard:

* Based on verses, narrations, and the judgment of intellect, the life, property, honor, and reputation of all human beings are respected, and no one can violate them without a Sharia reason (pp. 49-50). In addition to human property, environmental elements such as water, soil, and air are also respected, because these elements are essential and vital for the continuation of human life; therefore, any violation, destruction, or pollution of them is not permissible, and if damage occurs, it must be compensated (p. 57). Also, environmental resources and elements are considered part of public wealth and properties, and are at the disposal of the state; therefore, personal disposal of these resources without the permission of the Imam is not permissible, and in the event of such disposal, the individual is recognized as a sinner and a usurper (''ghasib''). On this basis, according to the Maxim of Destruction, anyone who causes damage to these public properties is liable and obliged to compensate for the damage (p. 58).
* Objects and resources that do not have a specific owner, meaning they are neither private property nor state property, are free for the use of the general public. No one has the right to deprive people of exploiting these environmental resources, because such deprivation might cause harms that have been negated based on the Maxim of No Harm (''la darar'') (p. 59). Some jurists believe that if someone damages these resources (which are neither private nor state property), they are not liable, although they are a sinner; however, another group of jurists believes that the individual in such cases, in addition to being a sinner, will also be liable. By citing the Maxim of Destruction, one can advocate that a thing being owned is not essential for the realization of liability; for this reason, damaging unowned elements and objects will also cause liability and civil responsibility, even if this damage was not done intentionally or voluntarily; because in the Maxim of Destruction, the existence of intent and volition regarding destruction and harming others is not a condition (p. 60).
* Some believe the Maxim of Destruction is specific to property and cannot be generalized to non-property. However, the majority of Shia and Sunni jurists have considered "respect for property" as the criterion for liability. Thus, this criterion can also be extended to non-property. Based on this, every human being possesses rights such as the right to life, the right to health, the right to have a healthy environment, and the right to mental and psychological tranquility, and violating these rights and damaging them brings about harms for the rights holders; therefore, the one who wastes these rights will be responsible and liable. Hence, there should be no doubt in citing the Maxim of Destruction in non-financial rights as well (p. 61).

=== Maxim of Causation (''Tasbib'') ===
According to the author, many jurists consider the Maxim of Causation an instance of the Maxim of Destruction; with the difference, of course, that it causes damage indirectly. Based on this, any act issued from a sane and autonomous individual that causes harm to the property or life of Muslims, rationally and customarily, holds the individual responsible (p. 62). According to the author, this maxim does not only include financial damages; rather, it encompasses bodily harms as well. For example, if an individual in an environment with nuclear medical activities suffers harm caused by radioactive materials, the employer is obliged to compensate for the inflicted damage according to the judge's opinion (p. 64).

The author also points out that if a lack of timely action by individuals, institutions, or responsible organizations causes the destruction or pollution of environmental elements (such as the inappropriate use of nuclear energy) and this causes damage to the human and natural environment, according to the Maxim of Causation, the responsibility for compensation will rest upon the cause (''musabbib''). Furthermore, individuals who do not observe the necessary precautions in using nuclear energy and cause damage to persons or the environment will be responsible for compensating the damage (p. 66).

[[Category:Bibliography Articles]]
[[Category:Books by Mohammad Javad Heydarian Dowlatabadi]]
[[Category:Books about nuclear energy]]
[[fa:انرژی هسته‌ای از منظر فقه امامیه (کتاب)]]

File:Elections and Shia Political Jurisprudence Foundations and Obligations.jpg

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Elections and Shia Political Jurisprudence: Foundations and Obligations (Book)

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Enadmin: Created page with "{{author | author = Sayyid Ali Hosseini Nasab | author2 = | author3 = | compiler = | editor1 = | editor2 = | editor3 = }}{{infobox book | title = Elections and Shia Political Jurisprudence: Foundations and Obligations | image = Elections_and_Shia_Political_Jurisprudence_Foundations_and_Obligations.jpg | image_size = | image_caption = | other_names = | author = Sayyid Mohammad Sadeq Kazemi | date_of_writing = | subject = Political jurisprudence | genre = Analyti..."

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* '''Abstract'''

'''Elections and Shia Political Jurisprudence: Foundations and Obligations''' (انتخابات و فقه سیاسی شیعه؛ مبانی و الزام‌ها) is a book in the field of political jurisprudence, authored by Sayyid Mohammad Sadeq Kazemi, a faculty member at Imam Sadiq (a) University. In this work, considering the close connection between the foundations of political thought and the formation of political structures, the author begins his discussion with the foundations of elections. Given the importance of the foundations of the state's legitimacy in Shia political thought, he examines and analyzes it in a separate chapter. Subsequently, bearing in mind that jurisprudential research means issuing a Sharia ruling for subjects—or issues—he addresses the issues of elections.

Relying on the principle of monotheism (''tawhid'') and the presumption of the absence of guardianship (''istishab 'adam al-wilayah''), the author rejects any domination over human beings without rational or transmitted evidence (''dalil naqli''). He argues that guardianship is granted only to certain individuals due to the judgment of intellect and the necessity of governance, making obedience to them obligatory. He considers social life without a government impossible because some affairs cannot be managed individually and require a ruler. He places the theory of humanity's divine vicegerency (''khilafat Allah'') as the foundation of popular sovereignty and considers political participation an undeniable right, without which a government is not legitimate. He rejects dictatorship and views the people's participation in decision-making as the best way to combat tyranny; elections are a means to preserve people's rights and their participation in decision-making, although their nature is more about shaping decisions. The author considers the duties of the Islamic government to be gaining public satisfaction, social discipline, and guidance. He views the majority vote not as a definitive authoritative proof (''hujjah''), but as a preferable option (''tarjih''), considering it valid only in the absence of other preferrers. He considers the right to be elected negated in affairs pertaining to guardianship (''umur wilayi'') and permissible in non-guardianship affairs (''umur ghayr wilayi''). Of course, only qualified individuals—such as Muslims, Shias, those of integrity, and those possessing religious knowledge—can become candidates, and he does not consider announcing candidacy without the approval of elites to be appropriate. Regarding voting, although the foundation of divine vicegerency might lead to unequal voting rights, the principle of the absence of guardianship creates challenges for the right to vote in guardianship matters, which can be answered by distinguishing between guardianship (''wilayah'') and compliance (''tawalli'').

== Overview and Structure Report ==
The book "Elections and Shia Political Jurisprudence: Foundations and Obligations," authored by Sayyid Mohammad Sadeq Kazemi, a faculty member at Imam Sadiq (a) University, is a work in the field of political jurisprudence that examines the issue of elections from the perspective of Shia political jurisprudence. This work, the first edition of which was published in 2023 (1402 SH) by Imam Sadiq (a) University Press, is organized in 488 pages.

The structure of the book is arranged into three chapters. At the beginning, the table of contents and the introduction are presented, and at the end, the sources and indices are included. The first chapter is dedicated to examining the role of the people and the foundations of the legitimacy of the Islamic government in the thought of contemporary jurists (''fuqaha''). In it, the author introduces and analyzes four categories of theories in this field during the contemporary era; including the appointment theory (''nadhariyyat al-nasb''), the appointment and election theory (''nadhariyyat al-nasb wa al-nakhab''), the assumption of responsibility theory (''nadhariyyat al-tasaddi''), and reactive theories (pp. 33–128). The second chapter addresses the foundations of elections in Shia jurisprudence and discusses various principles and foundations such as the principle of the absence of guardianship, humanity's divine vicegerency, the negation of dictatorship in Islamic thought, the duties of the Islamic government towards the people, the status and effect of the majority vote, the rule of preserving the system (''hifz al-nizam''), etc. (pp. 129–286). In the third chapter, the obligations of elections from the perspective of Shia jurisprudence are examined. Among its topics are the right to be elected, announcing candidacy, the qualification of candidates, voting, campaign requirements, financial issues of campaigns, transparency, and supervision (pp. 287–448).

== Examining the Foundations of Elections from a Jurisprudential Perspective ==

==== The Principle of the Absence of Guardianship ====
Relying on fundamental principles such as monotheism (''tawhid''), the free creation of humans, the presumption of the absence of guardianship (''istishab 'adam al-wilayah''), as well as verses (''ayat'') and narrations (''riwayat'') that restrict guardianship to God, the author rejects any domination and guardianship over human beings, unless rational or transmitted evidence proves otherwise. In his view, standing opposite the "principle of the absence of guardianship" is the judgment of intellect regarding the necessity of the existence of a government and a ruler; therefore, God Almighty, by virtue of this necessity, has excepted certain individuals from the rule of the absence of guardianship and granted them guardianship. Consequently, obedience to these individuals is obligatory and necessary (pp. 129–145).

By resorting to the rational proof regarding the impossibility of realizing social life without the existence of a governmental system, the author deduces the necessity of forming a government. He believes that in social life there are matters that neither possess the capability of individual management nor can be left unmanaged; hence, an individual must be appointed as the "ruler" to manage these affairs (pp. 145–151).

==== Humanity's Divine Vicegerency ====
The author founds the proof of the right to popular sovereignty on the unconditionality (''itlaq'') of the evidences for the theory of humanity's divine vicegerency. The result of this viewpoint is unconditionality in humanity's succession (''khilafah'') from God. This unconditionality, in the realm of creation (''takwin''), means the permissibility of human disposal over the earth to build and develop it, and in the legislative realm (''tashri'''), it means humanity's right to govern the earth. Based on this, human beings possess the right to govern, and this very right is considered the foundation of their political participation. Therefore, in this theory, the right to sovereignty and political participation is counted among the undeniable rights of the people, such that without referring to public votes, no government will possess legitimacy (pp. 152–166).

==== Negation of Dictatorship and Tyranny in Islamic Thought ====
After elucidating the condemnation of tyranny (''jabariyyah'') in Islamic narrations, the author analyzes the concept of "tyrant" (''jabbar'') by referring to its lexical and exegetical meanings, and then presents solutions for the ruler to be freed from this title. These solutions form the foundations of electoral thought in an Islamic government. In his belief, the participation of the people and the involvement of a group of them in the ruler's decision-making removes the description of tyranny from him. Elections are one of the effective tools toward observing the people's rights by the ruler, and simultaneously, involving the people in some of the macro-political decisions. The author clarifies that elections in their current form have more of a "decision-shaping" nature than "consultation" (''mashwarah''); nevertheless, delegating a part of decision-making to the people can be a path to exit despotism (pp. 183–209).

== The Duties of the Islamic Government Towards the People and the Status of the Majority Vote ==
In elucidating the duties of the Islamic government towards the people, the author enumerates three main duties that can be considered the foundation for the formation of the institution of elections: first, gaining public satisfaction; second, disciplining and bringing order to society; and third, education and guidance (pp. 209–228).

In the discussion of the [[majority vote]], the author proposes a theory in which the majority vote is posited not out of independent authority (''hujjiyyah''), but as a criterion and a preferrer (''murajjih''). Based on this viewpoint, whenever an issue has the capability of being referred to public votes, the option that the majority leans towards is recognized as the final choice. The proofs that the proponents of this theory have established to prove it are: the proof of intellect, the [[practice of the rational people]] (''sirat al-'uqala'''), certain narrations, as well as the practical conduct (''sirah'') of the Holy Prophet (s) and Amir al-Mu'minin (a).

However, in his own analysis, the author raises an objection to the rational proof and the practice of the rational people. He states that a government can be designed in such a way that it is realized without resorting to force and without relying on the majority vote, and even under conditions of public silence and apathy. Furthermore, he doubts the claim of the perpetual preference of the majority vote over the minority and considers it unacceptable.

Subsequently, the author engages in a detailed critique of the reliance on the narrations and the conduct of the Prophet (s) and Amir al-Mu'minin (a), and based on this, considers the reasons presented regarding the authority of the majority vote insufficient and unacceptable. Nevertheless, the only case where the majority vote has the capability of being relied upon in his view is the reliance on the [[Maqbula of Umar b. Hanzala]]. In this specific case, if there is a disagreement among experts and other preferrers are unavailable, the majority can be considered as a preferrer, provided that it can rationally discover reality and the more correct opinion. In such an assumption, paying attention to the majority vote is rationally commendable; but beyond this, neither rational proof nor transmitted proof has the capability to prove the authority or general praise of the majority vote (pp. 236–265).

== Obligations of Elections in Shia Jurisprudence ==

=== The Right to Be Elected ===
In elucidating the status of the right to candidacy for assuming positions, the author initially, by citing the principle of the absence of guardianship, states: In the realm of guardianship affairs, the primary principle is the absence of guardianship; hence, the principle is that no individual member of society, initially, has the right to candidacy and entry into such positions; unless valid evidence is established contrary to this principle. Because candidacy for this position is, in fact, a claim to the right to exercise guardianship, and this matter is considered negated by principle. Conversely, in non-guardianship affairs, the principle of the absence of guardianship does not apply; therefore, regarding these affairs, there is no prohibition on the existence of the right to candidacy for the general public, and the principle is its possibility and permissibility (pp. 287–298).

Following this, the author expresses his viewpoint in light of the theory of humanity's divine vicegerency. From his perspective, if we consider the position of divine vicegerency to be acquired, then the unconditionality of vicegerency for all human beings will not be acceptable. In this understanding, the claim that was based on the unconditionality of vicegerency and, consequently, equality in the right to sovereignty, participation, and other political rights for all humans, becomes invalid. Because even though the scope of the vicegerent's authorities and disposals on earth is absolute, the scope of this position's inclusion regarding individuals is limited and only includes those who possess the necessary competencies to bear this position. Therefore, only these individuals possess the right to sovereignty and naturally benefit from rights such as the right to be elected (pp. 287–298). Regarding the right to be elected in guardianship positions, the author believes in limitation, bringing attention to two characteristics (being non-Muslim and non-Shia) and (maleness), and explains the evidence for them. (pp. 298-300)

=== Announcing Candidacy ===
After examining three groups of narrations that have warned against seeking positions and leadership (''riyasah''), the author, by way of summation, states: Considering the spiritual dangers of leadership, such as the possibility of otherworldly punishment and its difficulties, the primary principle for every individual is fleeing from leadership. As a result, one who volunteers to accept this position must possess high certainty regarding the competence of their own soul; whereas such certainty is not only rationally difficult but also contrary to numerous narrations that have placed humans in a position of accusation and suspicion toward themselves. Based on this, a person should not expose themselves to leadership and should not initiate the announcement of candidacy.

He suggests that one must move toward rational methods for legitimizing candidacy, such as the candidate entering the electoral arena upon the insistence of the wise elders of the community, qualified jurists, or religious and political figures. This model must be incorporated into the electoral structure; for example, the process of registering for elections and announcing candidacy should only be possible with the approval of religious and political elites (pp. 300–316).

=== Qualification of Candidates ===
The author introduces "Islam and Shi'ism," "not being a transgressor" (''fasiq''), "knowledge of the divine rulings related to the duties and authorities of the position for which one is a candidate," and the "condition of maleness" as transmitted (''naqli'') characteristics. He subsequently points to rational characteristics, including "competence in administration," "popularity and the influence of one's word among the people," "being free from effective accusations of financial corruption," "non-dependence on the enemy," "alignment with religious values," etc. (pp. 316-322).

=== Voting ===
Regarding the equality or inequality of people's voting rights, in the author's view, although based on the foundation of humanity's divine vicegerency the result is unequal voting rights, it does not prevent the emergence of other foundations. This is because this foundation only proves the voting rights of individuals who have acquired the attribute of humanity's divine vicegerency and does not negate the voting rights of other individuals. Furthermore, the preservation of the system also only proves the right to vote in cases where preserving the system requires it and does not negate other cases. But the problem of the principle of the absence of guardianship remains. The principle of the absence of guardianship eliminates the right to vote in guardianship affairs. The answer to this is distinguishing between guardianship (''wilayah'') and compliance (''tawalli''). In compliance with affairs, the people have the right to vote; but in guardianship, this right does not exist. Based on this, the right to vote is only in these affairs and based on what was stated regarding public satisfaction, with the condition of not contradicting Sharia (pp. 322-328).

=== The Right to Vote in Narrations ===
Kazemi clarifies that the narrations related to consultation and participation refer to differences in the status of consulting and decision-shaping, not differences in the right to vote. In his belief, in many religious texts, equality among the people is assumed; including in the evidences related to allegiance (''bay'ah''), wherein no difference is observed among those giving allegiance. Therefore, the principle is the equality of people's political rights, although in practice certain limits might be considered for it (pp. 328–332).

=== The Obligation of Participating in Elections, Voting for the Most Qualified and the Accepted Qualified ===
From the author's perspective, voting is not a right, but a prescriptive ruling (''hukm taklifi''); therefore, it cannot be waived, and participating in elections is obligatory. If non-participation means declaring a vote (e.g., a negative vote), it might fall outside the scope of abandoning an obligatory act. Nevertheless, in the atmosphere of an Islamic government, this abandonment could fall under a secondary title, such as weakening the Islamic system, and consequently become forbidden (''haram'').

Kazemi considers [[Voting for the most qualified candidate|voting for the most qualified]] (''aslah'') to be obligatory based on rational preference and the expediency (''maslahah'') of the Muslims. If voting for the most qualified causes a greater corruption (''mafsadah''), the Sharia duty is to remove that corruption and provide the groundwork for the qualified (''salih'') individual to receive votes (pp. 339–347).

=== Campaign Requirements ===
The author examines topics such as deception through ignorance (''ighra' bi al-jahl''), fraud (''tadlis''), seeking fame (''shuhrah''), campaigning for someone who is not the most qualified, critique, painting a bleak picture (''siyah-namayi''), and defamation (''takhrib''). According to him, taking action to gain fame in electoral campaigns and prior to it does not have a Sharia prohibition; however, in designing the ideal electoral system in the Islamic system, and due to the severe reprehensibility of seeking fame in the narrations, it is fitting that this issue be given attention. For this reason, taking action to gain fame is reprehensible (''madhmum''). He views the way out of this problem to be rational solutions; such as others campaigning for the individual, or the individual's entry into the competitive arena being based on a sense of duty derived from the wise believers. These instances remove the act of seeking fame from being reprehensible in Sharia (pp. 347–396).

== Financial Issues of Elections ==
In Kazemi's belief, since elections, like judgment (''qada''') and jihad, are considered among public interests, using the public treasury (''bayt al-mal'') to cover their costs is permissible. However, if a candidate is in a state or position that customarily holds no benefit for the elections, the funds spent on them from the public treasury are considered a form of wasting public wealth, and the candidate will be responsible for compensating these costs. Here, the criterion of benefit for the elections is a rational matter, and security, political, media, and cultural dimensions are involved in it (pp. 396–405).

Regarding financial campaign contributions in the form of gifts (''hadiyyah''), Kazemi states that if the gift is not concerning a forbidden subject and does not cause corruption in the transaction, accepting it is not problematic. Therefore, receiving a gift for electoral campaigns is also unproblematic (pp. 405–414).

He places the jurisprudential examination of the ceiling for electoral expenses within the framework of two secondary titles: "extravagance" (''israf'') and "corruption" (''fasad''). In his view, the fundamental act of spending for campaigns has no problem in itself, but if these expenses reach the level of extravagance or occur in a situation that customarily leads to corruption, it falls under the Sharia prohibition. The criterion for identifying corruption is custom ('''urf'') and previous experiences of elections, and it is determined based on the practice of the rational people (pp. 414–428).

In conclusion, Kazemi emphasizes the necessity of financial and behavioral transparency in elections and considers it necessary from two aspects: first, the people's right to know and preventing deception through ignorance; second, preventing probable corruptions. Based on this, he believes transparency must be seriously considered in electoral laws and executive bylaws (pp. 428–433).

== Supervision ==
Kazemi clarifies that one cannot conclude the lack of duty to examine the qualifications of candidates by citing the principle of exoneration (''asl al-bara'ah''), which is applied in cases of doubt. The reason is that electoral qualifications do not solely pertain to negative attributes (such as not being corrupt), but also have positive attributes, such as "good management" (''husn al-tadbir''), which must be ascertained (''ihraz''). Therefore, in the supervision process, the principle is the ascertainment of the necessary characteristics, not merely the negation of obstacles (pp. 433–440).

In the author's belief, principles such as the principle of correctness (''asl al-sihhah''), the principle of justice (''asl al-'adalah''), or having a good opinion (''husn al-zann'') are also insufficient to prove the existence of qualifications. These principles are only applied in cases where we want to negate the effects of ugliness (''qubh''), not to attach effects such as proving goodness and qualification to them. In other words, the Lawgiver (''Shari''') has not obliged us to arrange the effects based on goodness, but has only forbidden arranging the effects based on ugliness.

The author also clarifies that executing the principle of correctness in supervising elections is similar to executing it in examining the conditions of candidates, meaning it is inappropriate and invalid. This is because the principle of correctness applies where correctness or corruption is established from the perspective of Sharia, whereas regarding the correctness of elections, what is at stake is legal validity and governmental legitimacy, not a direct Sharia ruling. For this reason, one cannot employ the principle of correctness as a valid foundation in the process of supervising elections (pp. 440–448).

[[Category:Bibliography Articles]]
[[Category:Books about elections]]
[[Category:Books by Sayyid Mohammad Sadeq Kazemi]]
[[Category:Books by Imam Sadiq University]]
[[fa:انتخابات و فقه سیاسی شیعه، مبانی و الزام‌ها (کتاب)]]