Yousef Saanei: Difference between revisions

Relying on five key principles —the [[Principle of Justice (Qa'idat al-Adl)]], taking priority of the Quran over Hadiths, the revision of evidence based on contemporary needs, the [[Principle of No-Hardship (Nafi al-Haraj)]], and non-commitment to consensus (Ijma') and popularity (Shuhrat)— Sa'anei proceeded to derive rulings that differed from popular fatwas in cases such as the [[Equality of Blood Money for Men and Women|equality of Diya (blood money)]] and [[Equality of Retribution for Men and Women|Qisas (retaliation)]] between men and women, the permissibility of [[Women's Judgeship|judgeship]] and [[Women's Marja'iyyah|religious authority (Marja'iyyah) for women]], the [[Puberty of Girls|attainment of puberty for girls]] at age 13, the [[Equality of Testimony for Men and Women|equality of testimony between men and women]], and the [[Mahramiyyah of the Adopted Child|Mahramiyyah of adopted children]].

Yousef Saanei was an Iranian Shia Mujtahid known for fatwas that differed from the common ones in the Shia jurists of his era. He was born in 1316 SH (1937 AD) in Isfahan and passed away in 1399 SH (2020) in Qom. He began his studies at the Isfahan Seminary (1325 SH/1946 AD) and completed them at the Qom Seminary (from 1330 SH/1951). He studied in Qom with some scholars such as [[Sayyid Husayn Tabataba'i Borujerdi|Sayyid Husayn Borujerdi]], [[Sayyid Muhammad Muhaqqiq Damad]], and [[Sayyid Ruhollah Musavi Khomeini|Imam Khomeini]], and he began advanced teaching of jurisprudence (Kharij al-Fiqh) in 1354 SH/1975. Some of his jurisprudential works include: Resalah Tawdih al-Masa'il (a treatise of practical jurisprudence), Manasik al-Hajj (the rituals of the pilgrimage to Mecca), Majma' al-Masa'il, Muntakhab al-Ahkam, Medical Istifta'at (inquiries of the followers), Misbah al-Muqallidin, Ahkam Banuwan (Rulings for Women), and Kitab al-Talaq (a book on divorce).<ref>A group of students, The Innovative Faqih; Narrative of the life of the Faqih of the Ahl al-Bayt (AS), Grand Ayatollah Sa'anei, pp. 53-55.</ref>

The Principle of Justice is one of the important and influential rules in Sa'anei's jurisprudence.<ref>Sa'anei, An Approach to Women's Rights, pp. 166-167.</ref> According to this rule, a ruling that contradicts justice could not be issued by the Sacred Legislator, and religious sources such as the Quran and Sunnah serve to express the general criteria and standards of justice and oppression, while delegating the determination of instances and details to custom (Urf) and common sense (Aql). The Legislator considers custom as a criterion and binds himself to the judgment of custom, except in cases where the custom is facing an explicit religious text (Nass). Inferring religious rulings, as well as issuing a fatwa, jurist and Mujtahid must apply customary criteria of his era and conform religious standards to that. If the rational custom of society considers something to be oppression, the jurist cannot present it as justice, and vice versa; unless a definitive explicit religious text refuses it.<ref>Qabil (Jami), The Principle of Justice and the Negation of Oppression, 147-174.</ref>

Citing verses such as [[Surah An-Nahl, Verse 90|“Indeed, Allah orders justice”]] (Nahl, 90) and other verses ([[Surah Al-An'am, Verse 115|An'am, 115]], [[Surah Fussilat, Verse 46|Fussilat, 46]], and [[Surah An-Nisa, Verse 40|Nisa, 40]], [[Surah Ghafir, Verse 31|Ghafir, 31]]), Sa'anei believes that the system of God's commands is organized in terms of justice and that the standard of every religious command is justice. Therefore, according to the aforementioned verses and the priority of the Quran over hadiths and the command to discard hadiths contrary to the Quran,<ref>Kulayni, Al-Kafi, vol. 1, pp. 69-70.</ref> if the customary conception of justice is incompatible with the general or absolute edicts in hadiths or the explicit text of an uncertainly-said hadith (Zanni al-Sudur), the customary conception of justice must be taken priority over hadiths and the ones containing an unjust ruling (on customary conception) must be discarded or interpreted (Ta'wil).<ref>Sa'anei, An Approach to Women's Rights, pp. 166-167; Ali-Akbarian, The Principle of Justice in Imami Fiqh, pp. 260-274.</ref>

Sa'anei utilizes this rule in issuing fatwa; for example, he does not regarded the reasons for men's right to divorce their wives as absolute rules and considers cases such as man's divorcing his wife without reason or man's refusal to divorce his wife in Khul' (when the woman is averse and has gifted or returned the dowry) as oppressive from the customary perspective, because it is customarily unjust to give the men full authority and take away women's authority solely on the basis of their gender. So he is of the opinion that the hadith "The man to whom the woman is married has the authority to divorce her" is not the absolute rule.<ref>Sa'anei, An Approach to Women's Rights, pp. 552-553.</ref> And he pointed out some early scholars such as Ibn Zuhrah al-Halabi<ref>Ibn Zuhrah al-Halabi, Ghunyat al-Nuzu' ila Ilmay al-Usul wa al-Furu', p. 375.</ref> and Shaykh al-Tusi<ref>Tusi, Al-Nihayah fi Mujarrad al-Fiqh wa al-Fatawa, p. 529.</ref> also considered divorcing the wife in Khul' to be obligatory for the man.

He is also opposed to the idea of ​​a woman's blood money (Diya) being half that of a man's. Saanei considers that customarily unjust because men and women are equal in human identity and social and economic rights (the rights confirmed by reason, Quran, and the Sunnah), and believes that hadiths indicating the halving of a woman's blood money must be discarded due to their contradiction with justice (this is a Quranic criterion for rulings).<ref>Sa'anei, Equality of Diya, pp. 62-64.</ref>

One of Saanei's primary foundations is the prioritization of the Quran. He, on Qisas issue, appeals to the usuli rule to the effect that the certainly-said Quranic texts (Qat'i al-Sudur) has precedence over the uncertainly-said hadith (Zanni al-Sudur).<ref>Na'ini, Ajwad al-Taqrirat, vol. 1, p. 505.</ref> He cites two verses: [[Surah Al-Ma'idah, Verse 45|“And We ordained for them therein a life for a life...”]] (Ma'idah, 45) and [[Surah Al-Baqarah, Verse 178|“Prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female”]] (Baqarah, 178) and considers their indication of equal Qisas for men and women to be clear and explicit (Nass). Therefore, in his opinion it is wrong to act upon hadiths indicate that taking a woman's revenge against a man as Qisas depends on payment of half the man's Diya, because they are explicitly contradict with the Quran.<ref>Sa'anei, Equality of Qisas, p. 43; cf. Mehrpour, Issues in Women's Rights, pp. 248-249.</ref>

Regarding [[Testimony of Women|testimony of women]], Saanei's focus is on the verse [[Surah Al-Baqarah, Verse 282|“And if there are not two men [available], then a man and two women... so that if one of them errs, the other can remind her”]] (Baqarah: 282). Based on the verse, he concludes that the ruling of two women's testimony being equivalent to one man's is restricted to financial matters (debt) in the first place as well as it is neither permanent nor does it include all women. This is because scholars of Usul say if an edict is stated with a reason (Illah), and something seems to be a reason for an edict, that edict depends on that reason.<ref>Allamah al-Hilli, Nihayat al-Wusul ila Ilm al-Usul, vol. 2, p. 201; Najmabadi, Al-Usul, vol. 1, p. 508.</ref> Saanei believes that in this verse "the forgetfulness of one woman and the need for the other to remind her" is the reason for inequality in testimony and this is related to the social conditions of women at the Age of Revelation (women had not social activities and they were weak in financial calculations). Since women today have a active presence in social fields and are precise in financial calculations, their testimony in court is equal to that of men because the problem of forgetfulness is no longer relevant.<ref>Sa'anei, Women's Testimony in Islam, pp. 57-59.</ref>

=== Revision of Evidence Based on contemporary circumstances ===

According to Saanei, the dynamism of Fiqh is tied to the "revision of evidence"; this revision does not mean changing or discarding evidence or imposing external beliefs upon it, but rather asking new questions about the texts and analyzing them for properly answers. This process is dealt with the common rules of Usul al-Fiqh and does not necessarily lead to innovation (Ijtihad) in Usul; rather, it could be inferred different fatwas from the branches (Furu') in a new inferential process, relied on the same common methodology. For example, in the issue of the [[Puberty of Girls]], the revision of evidence led him to maintain 13 years of age as an independent criterion for puberty.

Saanei divides hadiths indicating the puberty of girls at the age of 9 into three categories: 1. Hadiths referring to age 9 without any condition, 2. Hadiths paired with other things such as menstruation, and 3. Hadiths explicitly specify the age of 9 because that's when they start menstruating: "Because when a girl reaches nine years, she menstruates."<ref>Kulayni, Al-Kafi, vol. 7, p. 69.</ref> Saanei infers from this set that the age of 9 is a "pointing title" (unwan mushir) and lacks inherent subject-matter significance; because the first category of hadiths is restricted by the second and third categories; so based on the third category, the relevant matter and the cause of puberty is menstruation. Therefore, if a 9-year-old girl does not menstruate, she is not considered mature (baligh). Relying on a reliable (muwaththaq) hadith, he considers 13 years as another independent indicator for puberty.<ref>Sa'anei, Puberty of Girls, pp. 11-43.</ref>

In support of this view, some contemporary writers also believe that the hadiths related to puberty (indicating different ages of 9, 10, and 13) were issued from the Infallible's statue for subdivision of rules (tafri')—exemplification of a general rule— rather than the statue for legislation (tashri'); since the main criterion is menstruation and the specific age (like 9) was an instance suited to the conditions of the time of issuance and in Fiqh it can not be cited to unconditionally.<ref>Ziya'ifar, Philosophy of the Science of Fiqh, vol. 1, pp. 392-394.</ref>

Relying on evidence, Yousef Saanei issues fatwas and does not care about going against consensus (Ijma') or popular opinion (Shuhrat). His specific fatwas, including the permissibility of [[Women's Marja'iyyah|Women's Marja'iyyah]] and [[Women's Judgeship|Judgeship]], [[Equality of Blood Money for Men and Women|Equality of Diya]], and [[Equality of Retribution for Men and Women|Equality of Qisas]], are examples of this approach. In the issue of women's religious authority, he relies on the [[Wise Fashion (Sirat al-Uqala)]] and the judgment of reason (an uninformed refers to a scholar without difference between man and woman) and, by ignoring the claimed consensus, does not consider being male a condition for Marja'iyyah, judgeship, or Wilayah.<ref>Sa'anei, An Approach to Women's Rights, pp. 258-259.</ref>

Saanei regarded most of consensuses as "evidence-based" (madraki, i.e., based on other reasons) and, by critiquing those proofs, considers consensus to lack independent validity. For example, regarding the [[Guardianship of the Mother]], he disputes the reported consensus and say: "If we accept that this consensus has been occurred, it will be strongly based on hadiths and be an evidence-based consensus; thus it is not a proof (hujjah)."<ref>Sa'anei, Guardianship of the Mother, p. 62.</ref> This method removes the boundary between the inference of a ruling and the issuance of a fatwa. he is opposed to jurists who consider consensus invalid for inferring edicts but act upon precaution (ihtiyat) and do not stand up to popular views when they issue fatwas (i.e. present their view to followers).

Another frequently used rule in Yousef Saanei's jurisprudence is the [[Principle of No-Hardship (Nafi al-Haraj)]]. From his perspective, this rule is a definitive ruling, but the crucial matter is its extent. Sharia is based on the negation of difficulty and hardship (usr wa haraj). "Hardship" (haraj) is a customary concept without a seperate religious definition and its instances is identified customarily. The principle of ease and facilitation in religion is a governing criterion (a general principle) and can even be cited as a preference-criterion (murajjih) in the conflict of hadiths.<ref>Saanei, An Approach to Women's Rights, p. 205.</ref>

His fatwa on the [[Mahramiyyah of the Adopted Child]] is a prominent instance of this approach. He states on a question of mahramiyyah of a child whom someone adopted from the State Welfare Organization and whose age has passed the breastfeeding (ridha') period: we can not rely on the common religious ways (breastfeeding or marriage contract) in these cases, but there is no prohibition for looking given that caring for helpless children is a recommended and desirable act (birr and ihsan) leading to otherworldly reward and happiness in both worlds, and hardships and difficulties results from being non-mahram after the child's puberty (such as the problem of informing the child about his/her real parents, the spiritual suffering from childlessness, and the disruption of normal life). Citing the principle that "Islam is a religion of ease and facility," Saanei says these hardships allow us to lift the mandatory ruling (al-hukm al-taklifi).<ref>Nur al-Thaqalayn Cultural and Artistic Institute, Mirror of Opinion: Grand Ayatollah Saanei from the Perspective of Others, pp. 166-168.</ref> He is the first jurist who explicitly cited to the hardship to lift the prohibition of looking.

There has been widespread criticism of the specific fatwas of Yousef Saanei. The Society of Seminary Teachers of Qom stated in response to a question regarding his religious authority: "based on investigations conducted over the past year and numerous sessions, The Society of Seminary Teachers of Qom has concluded that he lacks the necessary criteria to be a religious authority."<ref>[https://jameehmodarresin.org/1139/849/ “Opinion of the Society of Seminary Teachers of Qom regarding the Marja'iyyah of Mr. Hajj Shaykh Yousef Saanei”], Society of Seminary Teachers of Qom.</ref> At the same time, the Farda website claimed that they had inquired about the opinions of other Maraji' offices about Marja'iyyah of Yousef Saanei, and none of them considered this statement sufficient to disqualify him from Marja'iyyah, and the office of the Supreme Leader had not answered explicitly and had refered to one of the other Maraji'.<ref>Opinions of the Maraja' Offices regarding the followers of Ayatollah Sa'anei, Khabar Online.</ref> The Assembly of Teachers and Researchers of the Qom Seminary also issued a statement expressing regret over this action.<ref>[http://majmaqom.ir/بیانیه-ها-و-اطلاعیه-ها/99 “Number 99: The Status of Marja'iyyah in the Seminaries”], Website of the Assembly of Teachers and Researchers of the Qom Seminary.</ref>

Some books and articles have been written in criticism of Yousef Saanei's jurisprudential views, including:

* "Guarding Jurisprudence; A Critique of Ayatollah Saanei's Jurisprudential Views," by Husayn Hashemian, Ali-Asghar Hematian Sadrollahi Damghani, and Mahmoud Moqaddami, Tehran, Vosough, 1387 SH.

* "Reviewing the Jurisprudential and Political Views of Ayatollah Saanei," by Omid Hosseini, Tehran, Islamic Revolution Document Center, 1392 SH.

* "Defense of Islamic Fiqh and Politics," by Sayyid Muhammad Baqir Hasheminia, Tehran, Vosough, 1386 SH.

* "The Review of Ayatollah Sanei's Opinion on the Blood Money of Moslem man and Woman," Contemporary Comparative Legal Studies, by Muhammad Ibrahimnezhad, Vo. 7, No. 12, 1395 SH.

* "Critique and Review: Contemporary Jurisprudential Innovations according to Jurisprudential and Ijtihadi Standards," by Mahdi Nikouei, Tehran, Athar-e Amin, 1385 SH.

* "Criticism of Usury for Production," Ahl al-Bayt (AS) Fiqh Journal, by Reza Mohammadi Karaji, No. 58-59, 1388 SH.

Some of the criticisms of Saanei focus on his jurisprudential foundations and, in fact, reject the major premise of his arguments; such as the critiques directed at the Principle of Justice.<ref>Ali-Akbarian, The Principle of Justice in Imami Fiqh, pp. 60-73.</ref> Other criticisms relate to the application of the aforementioned principles to jurisprudential subjects and are about the minor premise of the arguments; such as the criticism regarding the Mahramiyyah of adopted children, where it is not accepted to cause a hardship.<ref>Shariati-Nasab, Mahramiyyah in Adoption, pp. 241-242.</ref>

Despite the critiques and opposition to Saanei's jurisprudential opinions, some of his critics maintain that his jurisprudential views cannot be called heresy (bid'ah); because not every innovation is bid'ah, and a view is considered heresy if, firstly, it is presented as a part of religion, and secondly, no specific or general proof, based on valid religious sources, can be provided for it.<ref>Turayhi, Majma' al-Bahrayn, vol. 4, pp. 298-299; Raghib, Mufradat Alfadh al-Quran, p. 111.</ref>