Sayyid Mostafa Mohaghegh Damad

Author: Mahdi Khosravi Sereshki

Dr. Mohaghegh Damad
Name	Sayyid Mostafa Mohaghegh Damad
Age	1324 SH
Position	Mujtahid, Jurist, and Professor of Hawza and University
Nationality	Iran

• Abstract

Sayyid Mostafa Mohaghegh Damad (born 1324 SH/1945 AD) is a Faqih, jurist, and professor in Hawza and university. After completing his studies leading to Ijtihad in the Qom Seminary, he continued his academic studies in Philosophy and Islamic Law at the University of Tehran and eventually received his Ph.D in Public International Law from the Université catholique de Louvain. He has numerous works, including books, articles, and interviews in the field of Applied Fiqh and Islamic Law, striving to bridge the gap between Fiqh and legal, medical, environmental, and social issues. Among his prominent works are the books Qawa'id Fiqh, Medical Fiqh, Theology of the Environment, and Fiqhi Reviewing of Enjoining Good and Forbidding Evil, and Implementation of Hudud.

Analyzing the traditional views of jurists on public and criminal issues, Mohaghegh Damad presents his innovative and personal opinions in these works, including:

• Revision to Ijtihad, with emphasis on the role of time and space
• Suspension of Hudud in the Age of Occultation of Imam al-Mahdi based on the absence of Infallible governance
• The theory of separation between political caliphate and religious imamate in the Islamic system
• Fiqhi study of the dowry (Mahriyyeh) based on the current rate and the possibility of its installment
• Revision to the requirement of religious and denominational compatibility in the marriage contract
• 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
• 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
• Emphasis on the principles of justice and human dignity as pre-Fiqhi ones in reviewing Fiqh
• Reviewing the Fiqh of international relations with a focus on war, peace, and human rights

Scientific Biography

Sayyid Mostafa Mohaghegh Damad (born 1324 SH, Qom) is a Faqih, jurist, and professor in Hawza and university. He is the son of Sayyid Mohammad Mohaghegh Damad and the maternal grandson of Sheikh Abdul-Karim Ha'eri Yazdi, the constituent of the Qom Seminary. He studied seminary education under teachers such as Morteza Motahhari, Sayyid Mohammad Hosseini Beheshti, Hossein-Ali Montazeri, Sayyid Mohammad-Reza Golpayegani, and Mirza Hashem Amoli, and achieved the degree of Ijtihad in 1348 SH/1970 AD.

Simultaneously with his seminary education, he studied Philosophy and Islamic Law at the University of Tehran, obtaining a Master's degree in both fields. Then he moved to the Université catholique de Louvain in Belgium to study Public International Law, receiving his PhD in 1995; his doctoral thesis was about protection of individuals during war from the perspective of international law and Islamic jurisprudence.

Mohaghegh Damad served for many years as the head of the Law Department at Shahid Beheshti University and the Department of Islamic Studies at the Academy of Sciences of the Islamic Republic of Iran. He authored numerous works in Fiqh and Islamic Law and played an effective role in composing academic legal texts. He also held scientific and executive responsibilities in the General Inspection Office, the Scientific Council of Center for the Great Islamic Encyclopedia, and the Dr. Mahmoud Afshar Foundation.

Fiqhi and Legal Works and Publications

Other works on the author: Books by Sayyid Mostafa Mohaghegh Damad

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

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 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.

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.

Suspension of Hudud in the Age of Occultation

Mohaghegh Damad considers the 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. 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.

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:

1. Suspending (Tawaqquf) implementation of Hudud, due to the absence of Imam's specific deputy in the Age of Occultation.
2. Implementation of Hudud by an all-eligible Faqih (Faqih Jami' al-Sharayit), citing the principle of the sufficiency of Wilayat al-Faqih.
3. 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, he finally adopted the suspension view during the era of Occultation and presents his Fiqhi reasons in defense of this position.

Theory of the Separation of Caliphate and Imamate

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.

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 Akhund Khorasani, also tend to this procedure. This is represented in the works of Akhund's students such as Muhaqqiq Isfahani, Mirza Na'ini, and Aqa Zia Iraqi. According to him, Akhund Khorasani's Ijtihad was aد "Art-oriente Ijtihad" characterized by the following features:

• Establishing a principle or rule before examining primary sources
• 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).

The Principle of Justice and Human Dignity in the School of Akhund Khorasani

Mohaghegh Damad's analysis contains two principles of 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. 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. Akhund is of opinion that only the friendly relationship with belligerent kafirs is prohibited, and others have human dignity from the perspective of Sharia.

Limitedness of the Guardianship (Wilayah) of the Prophet, Imam, and Faqih from the Perspective of Akhund Khorasani

Citing to Akhund Khorasani's positions, Mohaghegh Damad is of opinion that Prophet and Imams guardianship (wilayah) is limited only to general and important political matters, and they have no Wilayah in minor issues such as expropriation, marriage, or matters outside the public interests of society. consequently, Wali Faqih's authorities is also limited to macro-issues in Shari'ah and political areas and cannot interfere in people's private and personal rights.

The Fiqhi Nature of Therapeutic and Medical Contracts

Considering the characteristics of being irrevocable (lazim), reciprocal (mu'awwadi), and consensual (ridayi), Mohaghegh Damad examines the nature of therapeutic contracts within the framework of three types of Fiqhi contracts:

• Hiring of persons (Ijarah al-Ashkhas): Mohaghegh Damad points to seven flaws in applying therapeutic contracts to the contract of hire; including that the physician (hired) is not subject to the orders of the patient (hirer), whereas such subordination is a prerequisite for hire contract.
• Wage contract (Ju'alah): In this type of contract, the patient is committed to paying a fee and the physician is obligated to take medical action. However, one of the problems with this format is that the payment of the fee is contingent upon achieving result, whereas the result in treatment is unknown.
• Independent indeterminate contract: These types of contracts, which had no precedent during the Age of Legislation (Tashri'), are acceptable provided that they do not conflict with Fiqhi principles. Citing the principle of freedom of contract (Article 10 of the Civil Code of Iran), Mohaghegh Damad considers the medical contract to be an independent, special contract that has its own mechanism and is legitimate according to Fiqh and law.

Fiqh of the Environment

Mohaghegh Damad classifies environmental resources into three categories: privately owned, state-owned, and 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 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," "Destruction" (Itlaf), and "Causation" (Tasbib) can serve as the basis for civil liability regarding environmental damages.

Family Fiqh

Calculation of Dowry (Mahriyyeh) at the Updated Rate and Its Installment

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.

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 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. Citing the Rule of No-Hardship (La Haraj) and the rules of Expediency (Maslahah) and the 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.

Examination of Stoning from Rational and Humanistic Perspective

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.

Criminal Fiqh

Equality of Qisas for Men and Women

Among the important controversial issues is the 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.

Qisas, a Limited Right, Not a Binding Obligation

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. 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.

Woman's Diyah as a Judicial and Sovereign Affair

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 difference between man and woman. 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 signatory (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; just as today, payment of Diyah in Rial is common. Mohaghegh Damad argues that justifying the half-Diyah of a woman by citing the economic status of the man is devoid of merit and acceptability in current conditions where women have active social, political, and economic roles. Considering the absolute nature of the Diyah verse, the variety of narrations, the diversity of Diyah criteria among different peoples, 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 Diyah payment depend on social developments and its ruling is judicial and governmental, not a fixed Shari'ah one.

Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery

In analyzing the Fiqhi rule of "Eating wealth in vanity" (Akl al-mal bi-al-batil), Mohaghegh Damad considers it dependent on custom (Urf) and the customary nature of transactions; in such a way that any transaction considered unfair by custom, such as Pyramid Schemes, will be subject to this rule.

The prohibition of hoarding also, from his perspective, is rooted in the ruling of reason; utilizing religious texts as corroboration, he considers this prohibition to extend beyond the limited four or six items and includes any commodity that causes loss to the people and disruption in social order.

Regarding playing with gambling instruments such as chess and backgammon, Mohaghegh Damad states that if, due to social changes, the description of gambling is removed from them, the ruling of their prohibition can be lifted and innocence (Bara'ah) becomes possible.

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.

Regarding bribery, Mohaghegh Damad introduces the scope of this prohibition to be beyond the domain of judgment and includes government officials as well.

Fiqh of Human Rights

Rereading Islamic Fiqh in the Light of Human Dignity and Rationality

Mohaghegh Damad emphasizes that in the case of a humanistic and rational interpretation of religious texts, the Islamic society can move in the direction of convergence with the global civil society. Accordingly, he suggests that instead of confrontation with modern concepts of human rights, one should choose a synthetic and comparative approach emphasizing existing capacities in Islamic Fiqh.

In the field of minority rights, he utilizes rules such as the Rule of Justice, Rule of Benevolence (Ihsan), Human Dignity, and fulfillment of covenants to show that preserving the Rights of Religious Minorities is not only possible but necessary. He considers respect for minorities as a sign of intellectual and moral maturity in the Islamic society and believes that Imami Fiqh also possesses the capacity to support this view.

Relations of Muslims with Others in War and Peace

From Mohaghegh Damad's perspective, the principle in the relations of Muslims with non-Muslims is peaceful coexistence; the state of war is considered exceptional, and the sanctity of human blood arises from being human. Killing is permissible only in two cases: committing murder or corruption on earth (Ifsad fi-al-Ard). Even in Islamic wars, the permissibility of killing must fall under the heading of defense or confronting corruption and sedition. He clarifies that non-Muslims living in a state of peace or neutrality are not subject to this ruling. Furthermore, narrations that conflict with Quranic verses in this regard, because they are of the "solitary report" (Khabar al-Wahid) type, lack the authority to specify or restrict the verses.

Regarding the demarcation of Dar al-Islam and Dar al-Kufr in the present age, his presented view is based on the definition of nationality based on faith. The world is divided into two parts: Dar al-Islam and Dar al-Harb. Dar al-Islam is a land where Muslims enjoy religious freedom, security of life and property, and social presence. Despite the complexity of geographical borders in today's world, Islam recognizes conventional borders as far as necessary and assigns specific legal effects to them. Until the realization of the global ideal of Islam, these two systems of demarcation (Islamic and conventional) will exist simultaneously.