Sayyid Mostafa Mohaghegh Damad: Difference between revisions
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* Rational and humanistic study of severe punishments with a focus on the ruling of stoning (Rajm) | * Rational and humanistic study of severe punishments with a focus on the ruling of stoning (Rajm) | ||
* Fiqhi investigation into the possibility of Qisas (retaliation) of a man against a woman in criminal Fiqh | * Fiqhi investigation into the possibility of Qisas (retaliation) of a man against a woman in criminal Fiqh | ||
* Analysis of the governmental and judicial nature of a woman's | * Analysis of the governmental and judicial nature of a woman's Diyah (blood money) in Fiqh | ||
* Evaluation of the customary (Urfi) nature of pyramid schemes, chess, hoarding, Riba (usury), and bribery | * Evaluation of the customary (Urfi) nature of pyramid schemes, chess, hoarding, Riba (usury), and bribery | ||
* Emphasis on the principles of justice and human dignity as pre-Fiqhi ones in reviewing Fiqh | * Emphasis on the principles of justice and human dignity as pre-Fiqhi ones in reviewing Fiqh | ||
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== Fiqh of the Environment == | == Fiqh of the Environment == | ||
Mohaghegh Damad classifies environmental resources into three categories: [[Private Ownership|privately owned]], [[State Ownership|state-owned]], and [[Public Property|public property]]. "Anfal," as public property, is at the disposal of the legitimate government and includes forests, seas, mountains, pastures, space, air, and other natural resources. These properties are neither subject to personal ownership nor alienation, rather, they must be used for public interests; because according to the explicit text of the Quran, Anfal belongs to God and the Prophet Muhammad, and according to Islamic jurists, it is at the disposal of the Infallible | Mohaghegh Damad classifies environmental resources into three categories: [[Private Ownership|privately owned]], [[State Ownership|state-owned]], and [[Public Property|public property]]. "Anfal," as public property, is at the disposal of the legitimate government and includes forests, seas, mountains, pastures, space, air, and other natural resources. These properties are neither subject to personal ownership nor alienation, rather, they must be used for public interests; because according to the explicit text of the Quran, Anfal belongs to God and the Prophet Muhammad, and according to Islamic jurists, it is at the disposal of the Infallible, when he is present, and of the religiously legitimate government during the Age of Occultation. | ||
In explaining the [[Rule | In explaining the [[Dominium Rule]] (Qa'idat al-Tasallut), he considers the absolute discretion of the owner to be conditioned by other Fiqhi rules such as the "[[No-Harm Rule]]" (La Darar). In his view, any disposition that causes harm to others or damage to public resources is prohibited and results in Shari'ah liability (Daman). Within this framework, rules such as "No-Harm," "[[Rule of Destruction|Destruction]]" (Itlaf), and "[[Rule of Causation|Causation]]" (Tasbib) can serve as the basis for civil liability regarding environmental damages.<ref>Mohaghegh Damad, Theology of the Environment, pp. 182 and 230.</ref> | ||
== Family Fiqh == | == Family Fiqh == | ||
=== Dowry (Mahriyyeh) at the | === Calculation of Dowry (Mahriyyeh) at the Updated Rate and Its Installment === | ||
From Mohaghegh Damad's perspective, " | From Mohaghegh Damad's perspective, "Calculation of Dowry at the Updated Rate" is based on the theory of currency devaluation, a theory that is not exclusive to Mahriyyeh and includes all Fiqhi and legal debts. Since money lacks intrinsic value and its credit depends on purchasing power, its reduction in exchange value must be considered in calculation of debt. In law, late payment damages and currency devaluation are two distinct categories. Mahriyyeh is paid paid at the rate of the day of payment, although some jurist like [[Ayatollah Golpayegani]] consider only the primary amount valid. The law of Mahriyyeh at the updated rate was also ratified for compensation of devaluation of the dowry. | ||
On paying Dowry in installments, Mohaghegh Damad takes into account the "contractual condition"; according to Article 1083 of the Civil Code of Iran, the couple can agree on gradual payment of Mahriyyeh. therefor the wife consents to limitation of her right to urgent demand of Mahriyyeh, and the husband becomes obligated to pay it at the specified times. However, if the husband intends to pay the Mahriyyeh before the appointed time, the wife cannot refuse to receive it.<ref>Mohaghegh Damad, Fiqhi Study of Family Law, pp. 210–212; Mohaghegh Damad and Khanlari, "Fiqhi and Legal Study of the Establishment of the Wife's Right to Dowry," pp. 127–158.</ref> | |||
=== Requirement of Religious and Denominational Compatibility in Marriage === | === Requirement of Religious and Denominational Compatibility in Marriage === | ||
In his Fiqhi works, Mohaghegh Damad considers marriage in Imami Fiqh not merely a legal contract, but a devotional and | In his Fiqhi works, Mohaghegh Damad considers marriage in Imami Fiqh not merely a legal contract, but a devotional and moral entity that pursues goals beyond fulfilling individual needs. According to him, Quranic concepts such as affection (Mawaddah), mercy (Rahmah), and tranquility (Sakinah) should be mentioned in the legal definition of marriage in the Civil Code of Iran so that this entity may regain its proper place. He calls for a revision of the legal definition of marriage based on Quranic teachings.<ref>Mohaghegh Damad and Dadmarzi, "Comparative Study of the Nature of Marriage in Fiqh and Positive Law," p. 94.</ref> Citing the [[Rule of No-Hardship|Rule of No-Hardship]] (La Haraj) and the rules of [[Expediency Rule|Expediency]] (Maslahah) and the [[Rule of Justice|Justice]], he suggests that the requirement of religious and denominational compatibility in marriage be reviewed in light of social developments and changing status of women.<ref>Mohaghegh Damad et al., "The Validity of the Requirement of Religious and Denominational Compatibility in Marriage in the Law of Iran, Egypt, and Lebanon," p. 25.</ref> | ||
=== Rational and Humanistic | === Examination of Stoning from Rational and Humanistic Perspective === | ||
Mohaghegh Damad believes that | Mohaghegh Damad believes that stoning is not proven in Quran as a enforceable Shari'ah ruling and is mainly based on hadiths. Analyzing Fiqhi and Quranic sources precisely, he emphasizes that severe criminal rulings like stoning must not be implemented without rational examination and observing the principles of justice and humanity. In interpreting rulings, he believes, one should attend to the spirit of Quran and the goals of Shari'ah, rather than merely the appearance of Hadiths.<ref>Mohaghegh Damad and Nikkhu, "Public Implementation of Islamic Punishments," pp. 79–100.</ref> | ||
== Criminal Fiqh == | == Criminal Fiqh == | ||
=== Equality | === Equality of Qisas for Men and Women === | ||
Among the important controversial issues is the | Among the important controversial issues is the [[Equality of Retribution for Men and Women|Equality of Qisas for Men and Women]]. Based on Shi'ite Fiqh it is necessary to pay the difference between blood money (Diyah) for men and women to enforce Qisas; whereas the Sunnis are of opinion that Qisas is carried out without the need to pay the difference in Diyah. Mohaghegh Damad believes that the principle of non-equality of Diyah for men and women can be inferred from Quranic verses, but this interpretation does not conflict with the possibility of finding a way to equalize the Diyah. Therefore, it cannot be concluded that a man will never be retaliated for a woman unless the difference in blood money is paid.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, p. 42; Mohaghegh Damad and Khosravi, "Gender Equality in Qisas; Condition of Establishment or Implementation," pp. 107–123.</ref> | ||
=== Qisas, a Limited Right, Not a Binding Obligation === | === Qisas, a Limited Right, Not a Binding Obligation === | ||
Regarding the word "Life" (Hayat) in the [[Verse of Qisas]], Mohaghegh Damad | Regarding the word "Life" (Hayat) in the [[Verse of Qisas]], Mohaghegh Damad is of opinion that "Life" refers not to physical life, but to social life, and it has a goal beyond the mere permissibility of revenge, e.g. controlling violence, enhancing order and justice, and strengthening piety in the believer community.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, pp. 43–47.</ref> From his perspective, Qisas is introduced in the Quran as an "executable right," not a "binding obligation." Considering the circumstances of the revelation of the verses and the cultural backgrounds of the Age of Ignorance (Jahiliyyah), the Quran legislates the ruling of Qisas to restrain tribal vendetta and illegal revenge. His conclusion is that Qisas is not an obligation to kill, but a conditional right that provides a legal power for retaliation on the positive side and prevents transgression and excesses on the negative side.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, pp. 47–48.</ref> | ||
=== | === Woman's Diyah as a Judicial and Sovereign Affair === | ||
In the discussion of [[Equality of | In the discussion of [[Equality of Diyah between Woman and Man]] in Islam, Mohaghegh Damad points to the "signatory" (Imda'i) nature of rulings related to Diyah that could change in the Islamic law. He thinks [[Verse 92 of Sura an-Nisa]] simply concerned with paying blood money and does not state any rule about the amount of Diyah or its difference for men and women. Examination of Hadiths also shows that the Prophet Muhammad (PBUH) determined Diyah of murder based on criteria such as camels, cows, sheep, Dinars, and Dirhams that are of [[signed Rulings|signed (Imda'i) rulings]] rather than "establishmed" (Ta'sisi) ones. This means that they would have confirmed by Sharia if they have been customary in the age of the Prophet (PBUH); so they are capable of change if the custom changes, as nowadays in Iran payment of Diyah in Rials is common. considering nowadays circumstances when women have active social, political, and economic roles, Mohaghegh Damad argues that it is unacceptable and unrighteous to justify the being half of Diyah's women by citing the economic status of men. based on the absoluteness of Diyah ruling in the Quranic verse, the divergence between Hadiths, the diversity of Diyah criteria among tribes and nations, and the signatory nature of the Diyah ruling, he concludes that the principle of compensation for damages is definitive and permanent, but the amount and method of paying Diyah depend on social developments and its ruling is a Judicial and Sovereign Affair, not an unalterable Sharia one.<ref>Mohaghegh Damad, Argumentative Comparative Criminal Fiqh, pp. 71–73; Mohaghegh Damad, "Separation of Judicial Narrations from Fiqhi Narrations," pp. 49–74.</ref> | ||
== Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery == | == Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery == | ||
The Fiqhi maxim "illicit acquisition of property" (Akl al-mal bi-al-batil), in his opinion, is a customary matter and depends on the customary nature of transactions, in such a way that this rule applies to any transaction considered unfair by custom, such as [[Pyramid Schemes]].<ref>Mohaghegh Damad, Illicit Acquisition of property in Islamic Law, pp. 21–28.</ref> | |||
The prohibition of hoarding also, from his perspective, is | The prohibition of hoarding also, from his perspective, is based on the reasonable analysis. citing to the religious texts as supportive evidence, he considers this prohibition to extend beyond four or six items mentioned in Fiqhi works and includes any commodity that causes loss to the people and trouble in social order.<ref>Mohaghegh Damad, Illicit Acquisition of Wealth in Islamic Law, pp. 44–58.</ref> | ||
Regarding playing with gambling instruments such as chess and backgammon, Mohaghegh Damad states that if | Regarding playing with gambling instruments such as chess and backgammon, Mohaghegh Damad states that if the gambling feature is removed from them due to social changes, their prohibition can be lifted and may be regarded as permissible.<ref>Mohaghegh Damad, Illicit Acquisition of Wealth in Islamic Law, pp. 182–197.</ref> | ||
In the discussion of Riba, the author considers the main goal of its prohibition to be the prevention of oppression, economic abuse, and steering people toward productive and useful activities, rather than merely the unregulated increase of capital. Distinguishing between the "cause" ('Illah) and the "wisdom" (Hikmah) of the prohibition of Riba, he argues that if oppression is the real cause of the prohibition, the practical principle of innocence can justify the legitimacy of some types of Riba, such as [[Production-oriented Riba]]. Also, by changing the subject or the object of the ruling, the possibility of legitimizing some ribawi transactions is provided.<ref>Mohaghegh Damad, Illicit Acquisition of Wealth in Islamic Law, pp. 217–281.</ref> | In the discussion of Riba, the author considers the main goal of its prohibition to be the prevention of oppression, economic abuse, and steering people toward productive and useful activities, rather than merely the unregulated increase of capital. Distinguishing between the "cause" ('Illah) and the "wisdom" (Hikmah) of the prohibition of Riba, he argues that if oppression is the real cause of the prohibition, the practical principle of innocence can justify the legitimacy of some types of Riba, such as [[Production-oriented Riba]]. Also, by changing the subject or the object of the ruling, the possibility of legitimizing some ribawi transactions is provided.<ref>Mohaghegh Damad, Illicit Acquisition of Wealth in Islamic Law, pp. 217–281.</ref> | ||