Sayyid Mostafa Mohaghegh Damad: Difference between revisions

In addition to various speeches and articles, Mohaghegh Damad has plenty of books in Fiqh and Islamic Law, including: 1. [[Medical Fiqh (Book)|Medical Fiqh]] 2. [[Environmental Theology (Book)|Theology of the Environment]] 3. [[Fiqhi Study of Family Law (Book)|Fiqhi Study of Family Law]] 4. [[Akhund Khurasani's School of Jurisprudence (Book)|Akhund Khurasani's School of Jurisprudence]] 5. [[Argumentative Comparative Criminal Fiqh (Book)|Argumentative Comparative Criminal Fiqh]] 6. [[General Theory of Negation of Hardship in Islamic Law (Book)|General Theory of Negation of Hardship in Islamic Law]] 7. [[Illicit Acquisition of Wealth in Islamic Law (Book)|Illicit Acquisition of Wealth in Islamic Law]] 8. [[International Humanitarian Law; An Islamic Approach (Book)|International Humanitarian Law; An Islamic Approach]] 9. [[Fiqhi Reviewing of Enjoining Good and Forbidding Evil, and Implementation of Hudud (Book)|Fiqhi Reviewing of Enjoining Good and Forbidding Evil, and Implementation of Hudud]]

In these works, Mohaghegh Damad presents novel views in the fields of Fiqh, Usul, and their comparative studies with law.

== The Necessity of Reviewing Fiqh and Usul, and Reconsidering Ijtihad ==

According to Mohaghegh Damad, Ijtihad, as a rational process of deducing rulings, is inherently fallible; because it is based on human understanding of religious sources, and human understanding is not immune to error however precise and systematic it is. This fallibility in Ijtihad is not a defect, but rather indicates the dynamism of Fiqh and the capability to reform it.<ref>Mohaghegh Damad, "Fallibility in Ijtihad," pp. 313–324.</ref>

Emphasizing the necessity of rethinking Fiqh foundations, Mohaghegh Damad presents a rationalist and transformative perspective on Ijtihad. He considers the [[Philosophy of Fiqh]] as a tool for a deeper understanding of the epistemological structures of Fiqh and emphasizes the [[Role of time and space in Ijtihad|role of time and space in the transformation of rulings]] and the necessity of attending to the [[Maqasid al-Shari'ah]] (Sharia Objectives). In his view, Ijtihad should be gone beyond traditional frameworks to include philosophical and rational methods to meet the new needs of society.<ref>Mohaghegh Damad et al., "Philosophy of Fiqh," pp. 11–121; "The Role of the Element of Time and Space in Shi'ite Ijtihad," pp. 46–55.</ref>

According to Mohaghegh Damad, although the finality of prophethood (Khatamiyyah), i.e. the end of the line of prophets, is religiously and rationally accepted, the endurance of Sharia, i.e. the continued validity of Islamic laws and rulings until Judgment Day, is a different matter that requires a separate basis and reasoning in another way. This endurance could not be considered merely a direct result of the finality of prophethood, as these two entity have independent natures. According to him, if the endurance of Sharia is understood as the absolute stability of laws, it seems inconsistent with historical changes and social transformation; the solution to this conflict lies in the institution of Ijtihad, meaning a scientific effort to deduce Sharia rulings from religious sources while considering the circumstances of time and space.<ref>Mohaghegh Damad, "Challenges of Fiqhi Criminal Legislation."</ref>

Mohaghegh Damad considers the [[Implementation of Hudud during the Age of Occultation|implementation of Hudud]] to be among the most important Fiqhi issues, related immediately to [[Enjoining Good and Forbidding Evil]]. Based on Hadiths and the consensus of jurists, it is implemented only by an Infallible Imam himself or his appointed deputy if the Imam presents.<ref>Mohaghegh Damad, Fiqhi Reviewing of Enjoining Good and Forbidding Evil, and Implementation of Hudud, pp. 127–128.</ref> He points to the importance of the rulings containing penalties such as striking, wounding, and even killing when he discusses the issue of the specific appointment of those authorized by the Imam to implement Sharia Hudud; therefore some Shi'ite jurists consider the implementation of these Hudud permissible only through direct appointment by the Imam. Obviously It is one of Imam's power to implement Hudud, but its practical implementation depends on Imam's sovereignty and his executive power.<ref>Mohaghegh Damad, Fiqhi Reviewing of Enjoining Good and Forbidding Evil, and Implementation of Hudud, pp. 128.</ref>

Mohaghegh Damad speaks of two situations in the Age of Occultation in which Hudud is implemented:

* Implementation of Hudud by the command of an unjust ruler (Wali al-Ja'ir): In this situation, the implementer of Hudud acts according to the order of the ruler who lacks religious legitimacy.

* Implementation of Hudud by a Faqih: in this regard, Mohaghegh Damad presents three main positions:

# Suspending (Tawaqquf) implementation of Hudud, due to the absence of Imam's specific deputy in the Age of Occultation.

# Implementation of Hudud by an all-eligible Faqih (Faqih Jami' al-Sharayit), citing the principle of the sufficiency of Wilayat al-Faqih.

# Not implementing Hudud by Faqih, based on critical and refusal arguments against those two views.

ِDiscussing the arguments of supporters and opponents of the implementation of Hudud by jurists in the Age of Occultation,<ref>Mohaghegh Damad, Fiqhi Rereading of Enjoining Good, Forbidding Evil, and Implementation of Hudud, pp. 135–145.</ref> he finally adopted the suspension view during the era of Occultation and presents his Fiqhi reasons in defense of this position.<ref>Mohaghegh Damad, Fiqhi Rereading of Enjoining Good and Forbidding Evil, and Implementation of Hudud, pp. 149–201; Mohaghegh Damad, "Hudud in Our Time: Implementation or Suspension?" pp. 61–78.</ref>

Mohaghegh Damad believes in the separation between caliphate and imamate. He is of opinion that the caliphate as a form and structure of government is an earthly, executive, and non-sacred matter, while the imamate holds a religious, spiritual, and sacred position; therefore, the caliphate pertains to political and executive management of society and can be administered by non-infallible people, but the imamate is a divine and spiritual status restricted to the Infallible Imams. In his view, the separation of these two concepts helps us to understand the history of Islam and the role of the Infallible Imams in the political developments of that era more accurately. Mohaghegh Damad explains this distinction by citing the peace treaty between Imam Hasan (AS) and Mu'awiya. Based on his analysis, Imam Hasan (AS) ceded the caliphate, i.e. the political management, to Mu'awiya and so he showed that the caliphate is separated from the imamate and giving in to the political circumstances at that time did not mean giving up the religious and sacred position, but rather giving up the government. So, considering the interests of the Islamic society, the Infallible Imams can entrust the reins of executive affairs to a non-infallible person.<ref>Mohaghegh Damad, "Session on 'Peace and War, Enjoining Good and Forbidding Evil'."</ref>

== Akhund Khurasani's School of Fiqh and Usul==

Mohaghegh Damad considers Sheikh Ansari's inclination toward rational and philosophical discussions to be one of his outstanding merits and believes that his students, including [[Mohammad-Kazem Akhund Khorasani|Akhund Khorasani]], also tend to this procedure. This is represented in the works of Akhund's students such as [[Muhaqqiq Isfahani]], [[Mohammad-Hossein Gharavi Na'ini|Mirza Na'ini]], and Aqa Zia Iraqi.<ref>Mohaghegh Damad, Akhund Khurasani's School of Jurisprudence, pp. 43–44.</ref> According to him, Akhund Khorasani's Ijtihad was aد "Art-oriente Ijtihad" characterized by the following features:

* Adapting the content of evidence to the established principle

* Putting the rules of Usul al-Fiqh at the center of inference process

* Using philosophical ideas to clarify the point of contention and reach a conclusion

* writing in a professional and concise manner required commentaries for deeper understanding

* Expanding the domain of Sharia to include individual and social dimensions (maximalist religion).<ref>Mohaghegh Damad, Akhund Khorasani's school of jurisprudence, pp. 108–109.</ref>

Mohaghegh Damad's analysis contains two principles of [[Rule of Justice|Justice]] and [[Human Dignity]], derived from Quranic teachings and human reason, as "pre-Fiqhi principles"; it means establishing these principles over Fiqhi evidence, not co-equal or in conflict with them.<ref>Mohaghegh Damad, Akhund Khorasani's school of jurisprudence, pp. 216 and 256.</ref> To explain Akhund Khorasani's view on the principle of human dignity, he explains Akhond's position on the issue of the "permissibility of a Muslim's endowment (Waqf) for a Kafir" to the effect that Akhond considers such an endowment correct by citing Quranic verses about doing good and charity.<ref>Mohaghegh Damad, Akhund Khorasani's school of jurisprudence, pp. 266.</ref> Akhund is of opinion that only the friendly relationship with belligerent kafirs is prohibited, and others have human dignity from the perspective of Sharia.<ref>Mohaghegh Damad, Akhund Khorasani's school of jurisprudence, pp. 267.</ref>

Mohaghegh Damad, citing the theories of Akhund Khorasani, limits the Wilayah of the Prophet and the Imams only to general and important matters related to politics, and in minor issues such as deprivation of ownership, marriage, or matters outside the public interests of society, they have no Wilayah; consequently, the Wilayah of the Faqih is also limited in terms of the scope of authority to major Shari'ah and political issues and cannot be extended to the private and individual affairs of the people.<ref>Mohaghegh Damad, Akhund Khorasani's school of jurisprudence, pp. 290–294.</ref>