The Principle of Expediency in the Islamic Legislative System and Its Application in Family Law (Book)
| The Principle of Expediency in the Islamic Legislative System and Its Application in Family Law | |
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| Book Information | |
| Author | Mohammadreza Moradi Posht-e Darbandi |
| Language | Persian |
| Publication Information | |
| Publisher | Aftab-e Giti |
- Abstract
The Principle of Expediency in the Islamic Legislative System and Its Application in Family Law (اصل مصلحت در نظام قانونگذاری اسلامی و تطبیق آن در حقوق خانواده) is a book in the field of the jurisprudence of expediency (Fiqh al-Maslahah) that examines how the rule of expediency is applied in family law. Mohammadreza Moradi Posht-e Darbandi, the author of the book, by articulating the legitimacy of expediency, its applications, the criteria of expediency in issuing governmental rulings (Ahkam Hakumati), as well as the evidence for the authority (Hujjiyyah) of governmental and state rulings (Ahkam Wila'i), has investigated the principle of expediency in the Islamic legislative system. In this work, he has examined the employment of expediency under various headings such as the philosophy of legislating religious rulings, the reason for deriving religious rulings, and the constraint on the object (Muta'allaq) of religious rulings. Moradi has dedicated an important part of this book to the principle of expediency in the thought of Imam Khomeini, with an emphasis on family law. However, in the final section, where the principle of expediency was supposed to be applied to family issues, no fundamental point has been articulated, and the author has sufficed with reporting topics about the status of the family in Islam.
Brief Overview and Report on Structure
The book The Principle of Expediency in the Islamic Legislative System and Its Application in Family Law is a Persian book in the field of the jurisprudence of expediency, written by Mohammadreza Moradi Posht-e Darbandi, which applies the issue of expediency to family law. This book was published by Aftab-e Giti Publishing Institute in 2020 (1399 SH). The author considers one of the ways of the dynamism of jurisprudence, and consequently the immortality of the religion of Islam, to be connected to the existence of the element of expediency, and believes that governmental jurisprudence is based on expediency, and these two elements seek to introduce religion into all spheres of life, including family law (pp. 10-11).
The book, which seems to have originally been a thesis, contains numerous repetitive discussions and abundant typographical errors, which has reduced its utility.
Structure
The author has organized the book into four chapters. The first chapter of the book is dedicated to introductory discussions and defining words and terms such as expediency (Maslahah), corruption (Mafsadah), secondary rulings (Ahkam Thanawiyyah), and family (pp. 10-14). In the second chapter, he addresses conceptual and theoretical foundations concerning the conceptualization of Sharia, jurisprudence (Fiqh), independent reasoning (Ijtihad), and the position of expediency in the station of discovering and deriving new rulings and issuing governmental rulings (pp. 16-108).
The third chapter of the book, titled The Principle of Expediency in Jurisprudence and Islamic Legislation, is dedicated to topics such as the position of expediency in Imami jurisprudence, the characteristics of unrestricted interests (Masalih Mursalah) and the scope of its validity in Shia jurisprudence, a comparison between unrestricted interests and governmental rulings, the role of the expediency of the system in Islamic jurisprudence, and the relationship between jurisprudence and expediency, as well as obligation (Taklif) and expediency (pp. 110-186).
In the final chapter of the book, the principle of expediency in the thought of Imam Khomeini is examined with an emphasis on family law. In this section, topics regarding expediency in various dimensions are discussed, including the relationship between expediency and the subjects of religious rulings, the Expediency Discernment Council, public expediency, the principle of expediency and the family system, etc. (pp. 188-286).
Main Concepts
The author considers divine Sharia to be purposeful and attributes objectives (Maqasid) to Sharia (p. 25), which are pointed to in a large portion of verses and narrations (p. 31). The author also defines jurisprudence and *Ijtihad* and mentions divisions for *Ijtihad*. He views expediency in the very meaning of good (Khayr), rightness (Salah), and benefit (Manfa'at) (p. 44). In a part of the book, he pays attention to the relationship between expediency and necessity (Dharurah) and harm (Darar) (p. 66). The relationship between wisdom (Hikmah) and expediency, as well as the difference between jurisprudential expediency and theological expediency, also form part of the book's contents in explaining the main concepts. The impact of expediencies and corruptions on changing rulings into state rulings or secondary rulings, and the impact of expediencies in the discussion of overlapping rulings (Tazahum al-Ahkam) are also among the topics of this section (pp. 75-79). A detailed section of the book is dedicated to defining unrestricted interests (Masalih Mursalah) and blocking the means (Sadd al-Dhara'i') and their position in Sunni jurisprudence, and the author has also included the view of the Shia in this regard (pp. 82-99).
The title of the second part of the second chapter is Expediency and Jurisprudence, and in it, after referring to the scope of expediency in jurisprudence, the author has also reported instances of the application of expediency in Shia jurisprudence. After repeating the discussion on governmental rulings, he has also pointed to the position of expediency in the field of women's jurisprudence (pp. 98-108).
Foundations of Paying Attention to Expediency in Deriving Rulings
The author considers the foundation for paying attention to the element of expediency in deriving rulings to be the subordination of rulings to expediencies and corruptions (Taba'iyyah al-Ahkam li al-Masalih wa al-Mafasid). He explains that since expediency is an innate (Fitri) and rational ('Uqala'i) matter, and on the other hand, religious rulings have fixed and varying aspects, and also due to the immortality of the religion of Islam, and that expediency is rooted in rational good and evil (Husn wa Qubh 'Aqli), one must pay attention to expediency in deriving rulings (pp. 46-48). In his belief, expediency is the basis for enacting and legislating religious rulings, the basis for managing society, and for issuing governmental rulings (pp. 50-61). The author has reported the differences between a governmental ruling and a religious ruling and then examined the role of expediency in governmental rulings (pp. 57-58). He has articulated criteria for issuing governmental rulings based on expediency; including employing expediencies to realize the transcendent goals of Islam, the non-opposition of expediencies to general religious rulings, observing the law of the more important and the important (Ahamm wa Muhimm), and observing expertise and specialized assessment (pp. 61-66).
In the third chapter, titled The Principle of Expediency in Jurisprudence and Islamic Legislation, the author first discusses the position of expediency in the very act of legislation (Asl al-Tashri') and then points to the connection of the word expediency with the terms cause (Sabab), criterion (Milak), and basis (Manat), which should have been placed in the previous chapter. A part of the contents of this chapter is about rulings in which expediency has been considered in the object of the religious ruling (pp. 116-123).
In the third chapter, under the heading of Expediency as a Reason for Deriving Religious Rulings, the author reopens the discussion on unrestricted interests (Masalih Mursalah), and after a report on the opinions of the Sunnis and Imamis regarding its authority, he compares it with governmental rulings and the proof of reason (Dalil al-'Aql), concluding that in a governmental ruling, derivation or legislation does not exist, and the issue falls under the category of overlapping duties (Tazahum) (p. 140).
The Role of the Expediency of the System in Islamic Jurisprudence
The author of the book, under a section titled The Role of the Expediency of the System in Islamic Jurisprudence, while repeatedly defining certain concepts like expediency, necessity, the ruling of reason, and the like, presents a report on the divisions of rulings into authoritative (Mawlawi), guiding (Irshadi), state (Wila'i), and governmental (Hakumati). He discusses the capability of reason to understand religious rulings, and regarding the role of reason, denies its capability to recognize authoritative rulings but accepts its capability to recognize guiding and endorsing (Imdha'i) rulings (pp. 143-150). After extensive discussions, the author concludes that the Islamic ruler can change some rulings based on the principle of overlapping duties and the rule of the more important and the important (pp. 170-171).
Evidence for the Authority of Governmental and State Rulings
In Moradi's opinion, the Islamic ruler, by virtue of his expertise in religious knowledge and his familiarity with the requirements of time and place, has an opinion that must be observed in implementing religion, just like any other expert. "Obey Allah and obey the Messenger and those in authority among you" (Ati'u Allah wa ati'u al-Rasul wa uli al-amr minkum) is a guidance toward this reality, and just as the discernment of expediency by a doctor, engineer, etc., possesses rational authority (Hujjiyyah 'Uqala'iyyah) by way of attaining certainty (Itmi'nan), the discernment of expediencies and corruptions and the attainment of certainty by the ruler are also sufficient for enacting and establishing his ruling, and for this reason, the Messenger of Allah (PBUH) possesses absolute guardianship (Wilayah Mutlaqah) (pp. 153 to 158).
Expediency in the Thought of Imam Khomeini
The fourth chapter of the book is dedicated to reporting expediency in the thought of Imam Khomeini and its application to the family system. In this chapter, the author again begins the discussion by mentioning theoretical preliminaries, such as the relationship between right (Haqq), expediency, and duty (Taklif), and the divisions of rulings, a large part of which appeared in the previous sections. The author then, in a discussion titled The Role of Expediency in the Conflict of Religious Rulings, addresses the overlapping of rulings (Tazahum al-Ahkam) in governance, and it is unclear why he titled the discussion conflict (Ta'arudh). Through this pathway, he enters the discussion of the Expediency Discernment Council of the System and explains its position, which is actually the position of leadership to resolve disputes between two legislative institutions in Iran (pp. 200-208). However, this discussion is more a historical report on the formation of the Expediency Council rather than theoretical and jurisprudential discussions.
The author, during a detailed discussion about public expediency (Maslahat 'Umumi), concludes that in the view of Imam Khomeini and Shia jurists, public expediency is only applicable in the context of determining the subjects (Mawdhu'at) of secondary rulings (p. 220). He considers the way to discern these public expediencies to be an assembly of experts and specialists in various fields, operating under the supervision of a knowledgeable jurist (pp. 220-226). The author also reports that in Imam Khomeini's literature, terms such as the expediencies of the country, the expediencies of the Muslims, the expediency of the system, the expediency of Islam, and the like have been used, and he concludes that in his literature, the expediency of the people is raised alongside the expediency of Islam, and they accompany each other (pp. 226-237).
According to the book's report, the ruler's ruling must revolve around expediency, and the mechanism for applying expediency must also be based on law, and the ability to discern expediency is itself one of the criteria for selecting a ruler (pp. 239-241). In his belief, the political leadership of the Islamic society during the era of occultation (Ghaybah) is among the positions and duties of the Guardian Jurist (Wali al-Faqih), who must issue rulings for administering affairs and managing the Islamic society, and implement plans and programs to bring about the material and spiritual progress of the Islamic society. He must observe expediency in designing and executing all his political, economic, and cultural programs, and discern it in consultation with experts and the elite of the Ummah, or entrust its discernment to a group of trustworthy, reliable, and respectable experts. Meanwhile, he must take care that these expediencies do not contradict religious rulings (pp. 255-258).
Application of the Principle of Expediency to the Family System
In the applied section of the book, which focuses on applying the discussion of expediency to the family system, the author initially spends many pages defining the family and related topics that have no connection to the discussion of expediency (pp. 258-275). The only point relevant to the discussion in this section of the book is that the foundation of the formation of the family is based on the principle of collective expediency (p. 277), and the author does not provide any specific explanation about this principle either. He does, however, detail that the collection of legal family laws, from before marriage to the formation of the family, and even in the stage of separation, guarantees the legal consolidation of the family (pp. 282-285).