Important Jurisprudential Discourses (book)

Author: Muhammadhossein Sarfipour

Buḥūth Fiqhiyya Hāmma (Important Jurisprudential Discourses) (in persian: بحوث فقهیة هامة) by Naser Makarem Shirazi is a deductive and ijtihadi collection in Arabic, authored to address newly-arisen and contemporary jurisprudential issues (al-masāʾil al-mustaḥdatha). The book, a product of Makarem Shirazi's advanced seminary lectures (khārij) and writings, is built upon two major foundations: 1. The comprehensiveness and perfection of the Shari'a, which considers Islam a complete religion without any legal vacuum, defining the jurist's (faqīh) duty as merely "discovering" (kashf) the divine ruling. 2. The necessity of an Islamic government for the implementation of laws and establishment of social order. With this approach, the author defines newly-arisen issues and, emphasizing the finality and universality of Islam, explains the necessity of addressing them. For the deduction of rulings, he stresses principles such as reliance on generalities (ʿumūmāt), the role of time and place (zamān wa makān), and the application of secondary principles (ʿanāwīn thānawiyya).

The book's discussions are structured into three main categories: individual acts of worship (ʿibādāt), social rulings (aḥkām ijtimāʿiyya), and newly-arisen issues. In individual worship, the author deems the obligation of the Hajj sacrifice in Minā to have been lifted (sāqiṭ) and suggests that, as a matter of precaution (iḥtiyāṭ), individuals may perform it in their hometowns. He also permits worship in the polar regions by referring to the horizon of temperate zones. In social rulings, he considers the formation of contracts through writing (inshāʾ bil-kitāba) to be absolutely permissible, views the difference in diya (blood money) for men and women as a form of economic compensation (jubrān al-khasāra al-iqtiṣādiyya), and describes the liability of the agnates (ḍamān al-ʿāqila) as a type of supportive insurance. In the section on newly-arisen issues, he addresses vital medical rulings, such as the permissibility of abortion when necessary to save the mother's life and organ transplantation in critical cases. In economics, he considers the value of money to be conventional (iʿtibārī) and sets purchasing power as the criterion for settling long-term debts. Regarding the Guardianship of the Jurist (Wilāyat al-Faqīh), while delineating the jurist's functions, he emphasizes the absence of legislative authority (wilāyat tashrīʿiyya) and the jurist's obligation to adhere to the interests of the ummah (maṣāliḥ al-ummah).

Structure and Approach

The book Buḥūth Fiqhiyya Hāmma by Naser Makarem Shirazi was published in Arabic in 1422 AH (2001 CE) by the Madrasat al-Imām ʿAlī ibn Abī Ṭālib (a) publishing house. This book is a collection of various advanced jurisprudence lectures and writings by Naser Makarem Shirazi, aiming to examine some contemporary issues that are subjects of concern and attention for jurists in the modern era.

The book consists of an introduction and 10 main discussions, which can be categorized under three primary themes: individual acts of worship, social rulings, and newly-arisen issues. The topics are as follows:

1. The Ruling on Sacrifice in the Modern Era (pp. 9-48)
2. Rulings on Ghināʾ (Singing) (pp. 49-77)
3. Worship in the Polar Regions (pp. 78-94)
4. Permissibility of Formation (Inshāʾ) through Writing in Contracts and Unilateral Acts (pp. 95-125)
5. The Ruling on Khums in the Era of Occultation (pp. 126-133)
6. The Reason for Women's Diya Being Half (pp. 134-161)
7. The Authority of the Judge's Knowledge (pp. 163-203)
8. The Liability of the ʿĀqila and its Philosophy (pp. 205-230)
9. The Guardianship of the Jurist (Wilāyat al-Faqīh) and its Limits (pp. 389-583)
10. Newly-Arisen Issues in Islamic Jurisprudence (pp. 231-388)
    1. The issue of birth control and population reduction
    2. Abortion
    3. Physician's liability
    4. The ruling on artificial insemination in Islamic Shari'a
    5. Insemination and implantation (artificial reproduction)
    6. Rulings on wills
    7. Rulings on banking transactions
    8. Rulings on banknotes

The author's perspective on the book's topics is based on two major foundations. First, the comprehensiveness and perfection of the Shari'a, according to which Islam is a complete religion without any legal vacuum, and the jurist's duty is merely to "discover" the divine ruling (p. 270). This view shapes his approach to newly-arisen issues (subjects that did not previously exist or whose nature has changed, p. 233). Emphasizing the finality and universality of Islam (p. 235), he deems it necessary to address these issues and relies on principles such as using generalities for the "discovery" of rulings (pp. 246-257), considering the role of "time and place" in subjects (pp. 248-253), and the key application of "secondary principles" like necessity (ḍarūra) and hardship (ḥaraj) (pp. 257-258).

The second foundation, which complements the executive and social dimension of this view, is the necessity of an Islamic government. This means that a government is indispensable for implementing the discovered laws of Islam and establishing order in society (pp. 444, 448). These two intellectual pillars—a complete Shari'a with mechanisms to address emerging needs, and the necessity of a government to implement it—form the main framework of the author's analyses throughout the book.

The Ruling on Hajj Sacrifice in the Modern Era

Considering the problems associated with the current state of Hajj sacrifice, the author believes that due to the impossibility of delivering the meat to the deserving, the obligation (taklīf) of sacrifice in Minā is lifted from the pilgrims. He suggests that, as a matter of precaution, they should perform it in their hometown or another location during the month of Dhul-Hijjah (pp. 9-10).

To prove this view, after an introduction (p. 11), Makarem Shirazi employs a purposive approach (maqāṣidī), citing four main reasons:

1. The non-essentiality of spilling blood: The primary goal of the sacrifice is to feed the poor, not merely to spill blood—a goal that is not achieved today (pp. 12-19).
2. Non-inclusion under the evidence (adilla): The modern form of sacrifice, where a massive volume of meat goes unconsumed, is a newly-arisen issue not covered by the scriptural evidence (pp. 20-22).
3. Place of slaughter: Today, the majority of sacrifices are performed outside the prescribed boundaries of Minā (pp. 23-28).
4. Prohibition of extravagance (isrāf): Burying or burning the sacrificial meat is a clear instance of extravagance and waste (isrāf and tabdhīr) and is therefore forbidden (ḥarām) (pp. 29-35).

Rulings on Ghināʾ

The discussion on ghināʾ (singing) is examined in three parts:

1. Evidence for Prohibition: The author finds the Quranic verses' indication of the prohibition of ghināʾ insufficient but establishes its prohibition based on narrations (riwāyāt) (p. 52) categorized into six groups (such as narrations interpreting "zūr" (falsehood) (p. 52) and "lahw al-ḥadīth" (idle talk) (p. 54), prohibitive narrations (p. 55), prohibition of its wage (p. 58), prohibition of listening (p. 59), and prohibition of reciting the Quran in the manner of ghināʾ (p. 60)). He critiques the opposing evidence (pp. 62-66) and ultimately deems two authentic narrations opposing the prohibition unreliable against numerous other narrations and the consensus of the companions (p. 67).
2. Meaning and Reality of Ghināʾ: After mentioning eight definitions for ghināʾ (p. 68), the author accepts Sheikh al-Ansari's definition of "melodies suitable for gatherings of the corrupt and sinful" and adds the condition of "suitability with musical instruments and dance" (p. 70).
3. Exceptions to Ghināʾ: He permits ghināʾ at weddings (pp. 73-74) and on days of Eid and celebration (p. 74), but does not make an exception for ghināʾ in Quranic recitation (p. 76). On the other hand, he does not consider cases like ḥidāʾ (camel-driving songs) (p. 75), eulogies (p. 75-76), and ululation (p. 77) to be instances of ghināʾ in principle.

Worship in the Polar Regions

The author addresses the possibility or impossibility of performing acts of worship like prayer (ṣalāt) and fasting (ṣawm) in the polar regions due to the extended length of days and nights (pp. 81-83). Stating that this issue is not an "unsolvable problem" (p. 82), he believes that by determining the "legal noon" (ẓuhr sharʿī) and "midnight" through the sun's movement (pp. 85-87), and based on the jurisprudential principle that "the application of general rulings is directed towards common individuals and regions" (inṣirāf iṭlāqāt al-aḥkām ilā al-afrād wa al-manāṭiq al-mutaʿārifa) (p. 88), residents of these areas must refer to the horizon of temperate regions for matters like prayer times and the duration of fasting (pp. 90-91).

Permissibility of Formation (Inshāʾ) through Writing in Contracts and Unilateral Acts

Contrary to the famous opinion of jurists (p. 97), the author, considering modern custom (ʿurf), deems formation (inshāʾ) through writing to be absolutely permissible (p. 97). After citing five different views (pp. 98-101), he defines "inshāʾ" as "the creation of a rational-conventional reality by its means" (p. 102). He argues that anything that indicates this creation of reality in custom, including writing and signing—which are the clearest examples today—can be a means of formation (pp. 106, 107-108). He critiques the opponents' evidence, such as "consensus" (ijmāʿ) (p. 109), the "presumption of invalidity" (aṣl al-fasād) (p. 109), and the narration "innamā yuḥallil al-kalām" (only speech makes lawful) (p. 110). To prove his own view, he refers to the "generalities of the obligation to fulfill contracts" (p. 118), "narrations on written wills" (p. 119), and "an authentic text on the divorce of an absent person through writing" (p. 120).

The Ruling on Khums in the Era of Occultation

After briefly mentioning and critiquing nine different opinions regarding the ruling on khums during the era of occultation, including "permission" (ibāḥa) (p. 129), "burying it" (p. 130), and "bequeathing it" (p. 130), the author selects the tenth opinion as his preferred view (p. 131): the share of the Sadat is paid to them, and the Imam's (a) share must be spent by qualified jurists (fuqahāʾ jāmiʿ al-sharāʾiṭ) on matters that would please the Imam, such as preserving religious seminaries and strengthening the Islamic government, while observing priorities (pp. 132-133).

The Philosophy of the Halving of Women's Diya

In response to the reasons for women's diya being half that of men's (p. 137), the author, after establishing this ruling through the consensus (ijmāʿ) of Shia and Sunni jurists (pp. 141-142) and consecutively transmitted narrations (riwāyāt mutawātira) (pp. 143-144), explains that diya is not the price of human value but rather compensation for the economic loss resulting from the individual's absence for the family (pp. 147-148). Since the economic role of men is typically heavier, the economic vacuum resulting from their absence is also greater (p. 152); therefore, this difference pertains to the economic aspect and has no relation to human dignity (pp. 149-151).

The Authority of the Judge's Knowledge

The authority of a judge's knowledge (ḥujjiyyat ʿilm al-qāḍī) is examined in two contexts:

1. Knowledge of the Infallible Imam (a): The author maintains that the authority of the Imam's knowledge and the permissibility of judging based on it is almost a matter of consensus, and thus, since it has no practical consequence today, he moves past it (p. 166).
2. Knowledge of a non-infallible judge: The author considers knowledge in the context of adjudication to be "objective" (mawḍūʿī), meaning it must be obtained through specific, legally prescribed means (p. 168-169). By examining the narrations, he arrives at the "distinction" (tafṣīl) view as his preferred opinion (p. 185): knowledge obtained from sensory (ḥissī) sources (direct observation) or near-sensory sources is authoritative for the judge, but knowledge obtained purely from conjectural (ḥadsī) sources has no validity in issuing a verdict (p. 185). The author argues that this distinction prevents corruption (p. 186).

The Liability of the ʿĀqila and its Philosophy

In response to the objection that the liability of the ʿāqila (agnatic kin) in cases of purely accidental homicide (pp. 209-210) is inconsistent with the principle of "individual responsibility" (p. 210), the author, after an introduction on the philosophy of religious rulings (pp. 218-224), considers this ruling a form of "obligatory family insurance and social security" mandated by the Lawgiver (p. 226). In this system, relatives participate in paying the diya to save a member of their family from economic collapse (pp. 226-227). Therefore, this ruling is a civil liability, not a criminal punishment (p. 227-228), and does not conflict with the verse "No bearer of burdens will bear the burden of another" (wa lā taziru wāziratun wizra ukhrā), which pertains to the non-transferability of sin (p. 225).

Issues Related to Medicine and Health

1. Birth Control: After examining the evidence for the desirability of having many children (pp. 276-278) and the evidence of proponents of birth control (pp. 278-281), the author adopts a detailed view (tafṣīl) (p. 278). In conditions where population growth leads to the weakening of the Islamic community, birth control through permissible methods becomes permissible, and sometimes even obligatory (pp. 283-284).
2. Abortion: Its primary ruling is absolute prohibition (pp. 286-287), but under secondary principles, such as the necessity of preserving the mother's life (p. 299), it is deemed permissible, especially before the ensoulment (wulūj al-rūḥ) (p. 300).
3. Physician's Liability: The default is the physician's liability (pp. 304-305) unless he has obtained a waiver (barāʾa) (p. 304). However, if damage occurs despite skill and adherence to principles, liability is negated (p. 311).
4. Autopsy: Its primary ruling is forbidden due to the prohibition of desecrating a Muslim's corpse (p. 316). However, as a secondary ruling, in cases of necessity (like saving human lives) and the unavailability of a non-Muslim corpse, it is permissible, and the diya is waived (p. 321).
5. Organ Transplantation and Implantation: Taking an organ from a deceased Muslim is not permissible as a primary ruling (p. 328), but if saving a Muslim's life depends on it, it becomes permissible based on the principle of the more important over the important (qāʿidat al-ahamm wa al-muhimm) (pp. 328-329). The sale of organs is considered permissible due to the existence of lawful vital benefits (p. 329). The transplanted organ, after gaining life in the new body, is considered pure (ṭāhir) (p. 332). If the organ is taken with consent or due to religious necessity, diya is not established (p. 331).

Issues Related to Economics and Financial Affairs

1. Banks: The author considers current accounts as "loans" (qarḍ) and fixed deposits as "muḍāraba" (profit-sharing partnership) (p. 344). He validates transactions with state-owned banks by affirming the legal personality of governments (pp. 347-350).
2. Banking Transactions: From the author's perspective, the profit from current accounts is permissible only if it is a unilateral commitment from the bank (pp. 352-353). To validate fixed deposits, he proposes the "muḍāraba" contract (pp. 356-358), and for loans, he suggests using alternative contracts with genuine intent (p. 359).
3. Money: The author considers the value of paper money to be "conventional" (iʿtibārī) (p. 363). Consequently, usury in loans (ribā al-qarḍī) applies to it, but usury in trade (ribā al-muʿāwaḍī) does not (p. 366), and zakat is not applicable to it (p. 369). For long-term debts, he considers the "purchasing power" of the money at the time of payment as the criterion, not its nominal value (pp. 374-376).

Guardianship of the Jurist (Wilāyat al-Faqīh)

The author outlines three functions for the jurist: issuing fatwas (iftāʾ) (pp. 392-395), adjudication (qaḍāwat) (pp. 397-398), and guardianship (governmental affairs) (wilāyat) (p. 399). In his view, jurists like the author of Javāhir (p. 402) believe in the general guardianship (al-wilāyat al-ʿāmma) of the jurist, while Sheikh al-Ansari (pp. 403-404) accepts it in public affairs but denies absolute guardianship (al-wilāyat al-muṭlaqa). The seven areas of authority for jurists, according to Naser Makarem Shirazi, are:

1. Guardianship over Orphans and the Absent: This is an established principle in jurisprudence to protect assets and prevent chaos (pp. 410-412).
2. Disposal of Khums and Zakat: Paying these funds to the jurist during the era of occultation is preferred, especially if an Islamic government is established (pp. 416-420).
3. Implementation of Prescribed Punishments (Ḥudūd): Implementing punishments is necessary for maintaining social order and is the responsibility of jurists during the era of occultation (pp. 427-429).
4. Enjoining Good and Forbidding Evil: More severe levels of this obligation are permissible only with the jurist's permission (pp. 433, 440).
5. Governance: The author, with rational and scriptural evidence, deems governance necessary (pp. 443-449) and considers the jurist the most deserving person to hold this position (pp. 450-470). This guardianship is constrained by observing the interests of the ummah (p. 487), consultation (shūrā) (pp. 492-494), and adherence to the rulings of the Shari'a (pp. 498-500).
6. Absence of Legislative Authority: The jurist has no legislative authority (wilāyat tashrīʿiyya) (p. 514); his duty is solely to discover and implement divine rulings (p. 515).
7. Guardianship over Property and Lives: This guardianship is not absolute and unlimited; it is solely for the purpose of protecting the public interest and implementing the rulings of the Shari'a (pp. 554-555).