Sayyid Muhammad Hassan Marashi Shushtari

Author: Mahdi Khosravi Sareshki

Sayyid Muhammad Hassan Marashi Shushtari (1316–1387 SH), was one of the students of Sayyid Abu al-Qasim al-Khoei, Mohammad Hadi Milani, and Imam Khomeini, and one of the founders of the judicial system of the Islamic Republic of Iran. In his teaching and works, he presented new perspectives in Islamic Criminal Law.

File:Mohammad Hassan Shushtari.jpg
Name	Sayyid Muhammad Hassan Marashi Shushtari
Position	Professor of Seminary and University, Member of the Supreme Judicial Council, Member of the Supreme Court
Nationality	Iran

• Abstract

Marashi, by proposing the theory of fixed and variable matters in Islam, believed that some Sharia rulings were not always fixed and the Infallible Imams changed them based on the exigencies of time. Regarding Apostasy, he considered the repentance of National (Milli) and Innate (Fitri) apostates to be accepted and distinguished between a dangerous and an ordinary apostate; such that he considered the application of apostate rulings to include only individuals dangerous to Islam.

In the field of Political Crime, he distinguished between Armed Rebellion and Legitimate Political Protest. He defined political crime as a group and organizational act by Muslims with the intention of exiting the obedience of the Guardian (Wali al-Amr); not actions taken individually or by non-Muslims. Also, he did not consider the Death Sentence permissible for a non-Mohareb political criminal.

Marashi considered the six types of Diya (blood money) to be subject to the economic conditions and custom of the time, not the essence of those properties, and did not consider it a ritualistic and fixed ruling for all eras. He was opposed to considering the devaluation of money in the calculation of Dowry (Mahr) and did not consider the prohibition of judgship to be absolute; rather, he considered it permissible in some cases. Also, he did not consider the age of nine years for girls as a ritualistic sign and rejected acting upon the relevant narrations.

Academic and Executive Biography

Sayyid Muhammad Hassan Marashi Shushtari (born 1316 SH in Shushtar – died 1387 SH in Tehran), in the two seminaries of Qom Seminary and Najaf, was a student of Sayyid Abu al-Qasim al-Khoei, Sheikh Muhammad Taqi Shushtari (author of Qamus al-Rijal), Mohammad Hadi Hosseini Milani, Imam Khomeini, and Sayyid Muhammad Hassan Mousavi Al-Tayyib (in the field of philosophy).

He presented newly emerged issues and Contemporary Jurisprudence in his Dars-e Kharij (advanced Fiqh course) at Shahid Motahari University, doctoral courses at the University of Tehran and Tarbiat Modares University, and also in his scientific works in the form of books and articles. He was a member of the Supreme Court and the Supreme Judicial Council, and one of the main founders of the judicial system of the Islamic Republic of Iran. His views in the field of Criminal Fiqh and Judicial Fiqh have become a reference and citation for jurists. Several Fiqh works in the field of Criminal Fiqh and Civil Law remain from him, which are: Sabil al-Rashad fi Sharh Irshad al-Adhan, Commentary on Islamic Penal Law, New Perspectives in Islamic Criminal Law (collection of articles in journals), Fiqh-e Puya (Dynamic Fiqh); Collection of votes and theories of Ayatollah Sayyid Muhammad Hassan Marashi.

The Necessity of Extending the Rationality of the Baghdad School in Contemporary Jurisprudence

Marashi, emphasizing the Rationalist School of Baghdad (in the 4th century AH, centering on figures such as Sheikh Mufid, Sayyid Murtada, and Sheikh Tusi) in Shia Fiqh, considered it a turning point in rationalist evolution and emphasizes the role of reason (Aql) in understanding the exigencies of time and criticizing the authority of Khabar al-Wahid (single-source report) in Contemporary Jurisprudence; because this school, by emphasizing reason as one of the sources of inferring rulings, stood against Akhbari and tradition-centered tendencies. Therefore, Shia Fiqh has considered reason valid alongside the Quran and Sunnah from the very beginning, and this characteristic has distinguished it from some Sunni schools.

According to him, the views of Sayyid Murtada and other rationalists of the Baghdad School questioned the authority of Khabar al-Wahid in doctrinal matters and even in some Sharia rulings; because Khabar al-Wahid lacks the certainty and assurance necessary to prove a Sharia ruling. This view paved the way for a transformation in the method of inference and the strengthening of the position of reason in Shia Fiqh against the Akhbaris and the significant volume of fabricated narrations.

He emphasizes that in continuing the rationalist tradition of the Baghdad School, Shia Fiqh must respond to the exigencies of time while preserving principles, and reason is the main tool for this adaptation. In the new social, political, and scientific conditions, using reason to understand emerging subjects and regulating rulings appropriate to them is essential.

Fixed and Variable Rulings and the Expediency of the Guardian Jurist

Marashi, regarding the subject of Expediency of the System in the period of the Islamic Republic of Iran, addressed expediency and its Fiqh foundations. By proposing fixed and variable matters in Islam, he believes that some narrations clearly indicate that Sharia rulings have not always been fixed and the Infallible Imams changed them according to the exigencies of time. In response to the question of whose duty it is to diagnose expediency, he answers that there is no doubt that we cannot access the criteria (Malakat) of rulings in a partial affirmative manner, but this does not prove that the Lawgiver has not given us a way to reach the criteria of rulings; rather, contrary to that, we have evidence that values Fitrah (innate nature) and Reason, and with it, expediency can be diagnosed.

He considers the Theory of Wilayat al-Faqih as one of the reasons for the proponents of diagnosing expediency, alongside verses, reason, and Rational Sira. According to him, the Guardian Jurist (Wali-e Faqih) can solve many problems based on expediency by using his governmental powers. Regarding the method of decision-making and expediency of the Guardian Jurist, he reminded that the meaning of Wilayat al-Faqih in the system of the Islamic Republic of Iran is not a person who is "active as he pleases"; rather, in issues where he does not have expertise, he must take counsel, and this matter is not exclusive to a Faqih or non-Faqih.

Statute of Limitations and its Effect on Repentance and Dropping of Hadd Punishments

Marashi, in examining the concept of passage of time (statute of limitations) since the commission of a sin and crime, and the non-repetition by the criminal, raises the question of whether such a situation can be an indication (Amara) of repentance or not. Contrary to the view of modern customary law which considers the statute of limitations as one of the factors for dropping prosecution or punishment, he believes that in Islamic Criminal Law, the statute of limitations is accepted only in a limited manner. In Hadd crimes, the statute of limitations is not acceptable, and even if a long time has passed since the commission of the crime, if proven, the punishment will be executed. However, based on some narrations, if the passage of time is accompanied by the reform of the individual's behavior, it can be considered a sign of genuine repentance and consequently, be effective in dropping the punishment. He presents the view of the opponents of this theory and their Fiqh arguments, and then critiques and rejects them with Fiqh and Usul arguments. He believes that the competence of the individual over time can only be effective when a sign of sincere repentance is observed in his behavior and conduct.

Acceptance of Apostate's Repentance and Distinction between Dangerous and Ordinary Apostate

Marashi believes regarding National (Milli) or Innate (Fitri) apostasy that both should be guided, and if they repent, their repentance is accepted, and the generalities of the evidence for accepting repentance include all of them. But if after the completion of the argument and necessary guidance, one willfully and obstinately does not accept Islam and continues in Kufr (disbelief) and Apostasy and is a dangerous individual for Islam (like the apostates of early Islam), it is certainly necessary to retaliate against them, and the generality of the apostate rulings includes this category of apostates. But if the apostate's existence is not dangerous for Islam and Muslims, from the principle of "Hadd punishments are warded off by doubts" (al-Hudud tudra'u bi-l-shubuhat), it is necessary to leave him to himself so that perhaps one day he returns to the embrace of Islam through correct and logical methods; because it is not clear that the narrations received regarding apostates have such absolute generality to include all apostates, whether dangerous or non-dangerous.

Political Crime and Moharebeh from the Viewpoint of Islam

In the view of Marashi Shushtari, Political Crime in Islamic Fiqh is linked to the concept of Baghy and rising against the Just Imam, if accompanied by weapons and threatening public order, is an instance of Baghy and worthy of confrontation; but in cases where there is a reformist motive or legitimate protest, it cannot be considered a political crime. He emphasizes that a political crime is a group and organizational act by Muslims who exit the command and obedience of the Guardian of Muslims (Wali al-Amr) with intent and volition; therefore, cases such as individual and personal action, group action without strong organization, or by an apostate or Kafir Harbi (belligerent infidel), are not considered political crimes. (Shariati, Dynamic Fiqh, p. 96) Marashi does not consider the Death Sentence permissible for political criminals who are not at war; unless they have committed a murder, in which case the Retaliation Sentence (Qisas) is applied upon the request of the blood owners, and generally in Islam and statutory laws, political criminals enjoy more leniency and clemency.

Marashi Shushtari considers two conditions necessary for the applicability of Moharebeh: first, that the Mohareb is armed, and second, that he intends Corruption on Earth (Ifsad fi al-Ardh); therefore, if an individual or individuals are not armed but cooperate with armed individuals, they are not instances of Mohareb, and if a group or population rises against the Islamic Government, provided we believe in Wilayat al-Faqih, they are Baghi and political criminals, not Mohareb.

The Six Types of Diya and the Exigencies of Time

Marashi, with a historical, economic, and Fiqh approach, has examined the Six types of Diya and emphasizes that the determination of Diya based on camel, cow, sheep, dinar, dirham, and Yemeni suit (Hullah), arose from the economic and social conditions of early Islam, not a fixed ritualistic ruling for all times. He believes that the Lawgiver designated these properties as Diya because, at that time, people's assets mainly consisted of these items. Therefore, the subject matter of the six types of Diya was subject to custom and their purchasing power at the time of the issuance of the ruling, not the essence of those properties. By criticizing the common view of jurists who consider these properties to have permanent subject matter, he emphasizes that dirham and dinar lack external existence today and cannot be the basis for paying Diya. Also, the purchasing power of these properties was considered at the time of the issuance of the ruling and Diya must be determined in the present time with attention to the real and common value of assets.

Marashi Shushtari proposes that the Islamic Republic government determine Diya based on real loss and damage and with modern economic criteria, considering interests and Islamic justice, not merely based on the traditional assets of early Islam. He considers the theory of Takhyir (choice of the criminal in selecting any of the types of Diya) to be more in harmony with the spirit of Fiqh and narrations, and considers the theory of Tanwi' (obligation to pay a specific type of Diya) as reducible to Takhyir.

Non-consideration of Currency Devaluation in Calculation of Mahr

Marashi Shushtari is opposed to considering inflation in the Calculation of Dowry (Mahr) and points out several points in this regard:

One of the conditions for the validity of any contract is that the amount of property determined in the contract must be known. From this aspect, the Mahr in the marriage contract must be specific. If the amount of Mahr refers to its financial value and purchasing power at the time of payment and the amount itself has no subject matter, in reality, the Mahr becomes unknown. This issue is also raised in a loan sale; if the amount of the price refers to its purchasing power at the time of payment, it does not become known what amount the customer must pay to the seller, and this causes Gharar (uncertainty) in the sale.

If we consider the decrease in the value of money effective in prices and dowries, we must also consider the increase in the value of money as causing a decrease in the price and dowry; because if we make purchasing power the criterion, the purchasing power of money has increased.

Another example is that if a bank lends an amount to a person and considers an amount for Damages for Late Payment and the debtor does not pay his debts at the appointed time, the bank only takes the damages for late payment; whether the Rial value of money has decreased or increased. In any case, the bank does not create a change in the original contract. If this method changes, it causes chaos in contracts and creates problems in society.

If a person who must pay his wife's Mahr Ind-al-mutalibah (on demand), and the wife has not demanded it and the purchasing power in the market has decreased, this decrease has no connection to the husband for us to hold the husband responsible for paying the difference in its value under the rule of destruction (Itlaf) or causation (Tasbib).

Women's Judgship in Court in the Position of Hakim

Muqaddas Ardabili, contrary to the famous opinion of jurists, has considered the Judgship of a woman permissible in some cases, and Marashi Shushtari also, by examining the view of Muqaddas Ardabili and analyzing verses, narrations, and the views of jurists, concludes that there is no definitive proof for the prohibition of women's judgship and the evidence for the prohibition of women's judgship is not absolute and one can argue for its permissibility in some cases.

Marashi Shushtari believes that the narrations prohibiting women's judgship are weak in terms of chain of transmission and indication, and one cannot issue a definitive ruling based on them. Also, he refers to principles such as justice, knowledge, and the ability to reason in judgment and says that if a woman possesses these conditions, gender should not prevent her judgship. Marashi Shushtari, emphasizing rationality in Fiqh, points out that the criterion in judgment is scientific and ethical competence, not gender or women being emotional.

Age of Religious Puberty of Girls

In the opinion of Marashi Shushtari, the meaning of Puberty in Islam is sexual puberty in the sense of sexual powers reaching the limit of perfection and the natural possibility of reproduction. It is possible that girls reach sexual and instinctual perfection at the age of nine, but considering that girls mostly do not reach the limit of Puberty at this age and puberty at nine years old is precocious puberty, this age cannot be considered an indication (Amara) of puberty; because an indication is where it is permanent or at least dominant. The mistake regarding the religious puberty of girls stems from some narrations related to the age of nine which some jurists have assumed to be a ritualistic indication. In this issue, one cannot act upon these narrations; because firstly they are not compatible with other narrations, secondly they do not correspond with external reality, and thirdly they are not in harmony with the criterion of the Quran which is the limit of Ihtilam (wet dream/sexual discharge).

References

Shariati, Elham and Sayyideh Leila Mousavi, Fiqh-e Puya (Dynamic Fiqh); Collection of votes and theories of Ayatollah Sayyid Muhammad Hassan Marashi, Tehran, Khorsandi Publishing, First Edition, 1393 SH.

Marashi Shushtari, Sayyid Muhammad Hassan, Didgah-haye No dar Hoquq-e Keyfari-e Eslam (New Perspectives in Islamic Criminal Law), Tehran, Mizan Publishing, 1376 SH.

Marashi Shushtari, Sayyid Muhammad Hassan and Hormoz Asadi Kuhbad, "Investigation of the role of theorists of the Baghdad School in institutionalizing reason in the evolution and development of Imami Fiqh research", Biannual Journal of Islamic Jurisprudence and Law Research, No. 1, 1387 SH.