Grand Ayatollah Yousef Saanei

Author: Mahdi Shajarian

File:Yousef Saanei.jpg
Name	Yousef Saanei
Age	1316 SH
Position	Shia Marja' al-Taqlid
Nationality	Iran
Website	https://saanei.xyz

• Abstract

Yousef Saanei (1316–1399 SH), was a Shia Faqih who held fatwas differing from the consensus of jurists, particularly in areas such as Fiqh of Women and the Rights of Non-Muslim Minorities in Islamic society. These views faced numerous reactions from traditional jurists, and examining them can contribute to a better understanding of the developments in Contemporary Jurisprudence. It has been said that his approach represents an effort toward the dynamism of Shia Fiqh and responding to new issues while maintaining inferential frameworks.

Relying on five key principles—the Principle of Justice (Qa'idat al-Adl), the priority of the Quran over narrations, the revision of evidence based on contemporary needs, the Principle of No-Hardship (Nafi al-Haraj), and non-commitment to consensus (Ijma') and popularity (Shuhrat)—Sa'anei proceeded to derive rulings that differed from popular jurisprudential fatwas in cases such as the equality of Diya (blood money) and Qisas (retribution) between men and women, the permissibility of judgeship and religious authority (Marja'iyyah) for women, the attainment of puberty for girls at age 13, the equality of testimony between men and women, and the Mahramiyyah of adopted children.

According to Sa'anei's fatwas, the permissibility of polygyny is conditional upon the acceptance and consent of the first wife; he even considers marriage without consent that involves the harassment of the first wife as impermissible and void (batil). He also considers the legitimacy of temporary marriage to be limited only to emergency and exceptional cases, such as long wars. Sa'anei considered "conventional justice" (al-adl al-urfi) to be the basis for many rulings and believed that the Legislator (Shari') has delegated the identification of instances of justice to convention (Urf).

Academic and Political Biography

Yousef Saanei was an Iranian Shia Mujtahid known for fatwas that differed from the consensus of the Shia jurists of his era. He was born in 1316 SH in Isfahan and passed away in 1399 SH in the city of Qom. He began his studies at the Isfahan Seminary (1325 SH) and completed them at the Qom Seminary (from 1330 SH). In Qom, he benefited from masters such as Sayyid Husayn Borujerdi, Sayyid Muhammad Muhaqqiq Damad, and Imam Khomeini, and he began teaching Kharij al-Fiqh in 1354 SH. Some of his jurisprudential works include: Resalah Tawdih al-Masa'il, Manasik al-Hajj, Majma' al-Masa'il, Muntakhab al-Ahkam, Medical Istifta'at, Misbah al-Muqallidin, Ahkam al-Banuan (Rulings for Women), and Kitab al-Talaq.

Sa'anei's revolutionary activities prior to the 1979 Islamic Revolution involved efforts in cultural and promotional dimensions, such as issuing political declarations and statements. Following the Islamic Revolution, his record includes membership in the Guardian Council, the Prosecutor General's office, membership in the Society of Seminary Teachers of Qom, membership in the Assembly of Experts, and the Expediency Discernment Council.

Specific Jurisprudential Fatwas

Certain jurisprudential foundations and specific opinions of Yousef Saanei have always been subjects of discussion and controversy; including the puberty of girls at age 13, the permissibility of a woman leaving the house without the husband's permission, the equality of Qisas and Diya between men and women, the possibility of women's judgeship, the lack of the male-gender requirement in Marja'iyyah and Wilayah, the natural guardianship of the mother over the child after the father, the restriction of the prohibition of music and singing (Ghina) to its content-based prohibition, the ritual purity (taharah) of non-belligerent kafirs, the restriction of the prohibition of Riba (usury) to consumptive Riba rather than productive Riba, Qisas of a Muslim for a Kafir, the possibility of inheritance of a non-Muslim from a Muslim, and the Mahramiyyah of adopted children.

Sa'anei prioritized conventional justice over many Islamic rulings and believed in the inherent dignity of every human being, regardless of their beliefs. A series of booklets by Sa'anei has been published under the title Fiqh and Life, in each of which he explains the reasons for his fatwas.

In Sa'anei's view, the permissibility of polygyny is conditional upon the requirement that the second marriage does not cause harm to the first wife and is not conventionally considered reprehensible or offensive, but rather meets her acceptance and consent. Relying on the verse “And live with them honorably” (Nisa, 19), Sa'anei argues that a second marriage without the consent of the first wife and which causes her distress is not permissible (taklifan) and is void (wadh'an/batil). Also, in his view, the legitimacy of temporary marriage is limited only to emergency and exceptional cases such as long wars, and promoting it as a solution alongside permanent marriage not only does not prevent corruption but, by endangering the family unit and promoting licentiousness, leads society toward collapse. Sa'anei's primary solution for addressing the challenges of the youth is the removal of economic and cultural barriers and the facilitation of permanent marriage, rather than resorting to temporary marriage.

Jurisprudential Principles and Rules

The principles and rules by which Sa'anei's jurisprudential fatwas were derived consist of five influential principles: the Principle of Justice (Qa'idat al-Adl), special attention to the Quran, revision of evidence based on contemporary requirements, the Principle of No-Hardship (Qa'idat al-La Haraj), and opposition to consensus (Ijma') and popularity (Shuhrat). Sa'anei's fatwas, although innovative, do not fall outside the framework of jurisprudential inferences, even if they present some relatively new principles.

Principle of Justice (Qa'idat al-Adl)

The Principle of Justice is one of the important and influential rules in Sa'anei's practice of Fiqh. According to this rule, a ruling that contradicts justice is not issued by the Sacred Legislator, and religious sources such as the Quran and Sunnah serve to express the general criteria and standards of justice and oppression, while delegating the determination of instances and details to convention (Urf) and social reason (Aql). The Legislator places convention in the position of judgment and is itself committed to the judgment of convention, except in cases where there is an explicit religious text (Nass) to the contrary. The jurist and Mujtahid, in the position of inference, must adapt religious criteria to the convention of their time and, in issuing a fatwa, take the judgment of convention as the criterion. If the rational convention of society considers something to be oppression, the jurist cannot present it as justice, and vice versa; unless a definitive religious text exists.

Citing verses such as “Indeed, Allah orders justice” (Nahl, 90) and other verses (An'am, 115, Fussilat, 46, and Nisa, 40, Ghafir, 31), Sa'anei believes that the system of God's commands is organized within the framework of justice and that the standard of every religious command is justice. Therefore, if the conventional understanding of justice is incompatible with the generalities or absolutes of narrations or with the text of a narration of non-definitive origin (Zanni al-Sudur), then according to the aforementioned verses and the priority of the Quran over narrations and the command to discard narrations contrary to the Quran, the conventional understanding takes precedence, and narrations containing an unjust ruling (from the perspective of Urf) are discarded or interpreted (Ta'wil).

Sa'anei utilized this rule in his fatwas; for example, he does not accept the absolute nature of evidence regarding the man's right to divorce and considers cases such as divorce without reason by the man or the man's refusal to divorce in Khul' divorce (when the woman is averse and has gifted or returned the dowry) as oppressive from the conventional perspective. This is because, conventionally, depriving the woman of choice and granting absolute choice to the man based solely on gender is unjust; therefore, one must abandon the absolute application of the narration "Divorce is in the hand of the one who takes the leg," noting that some early scholars such as Ibn Zuhrah al-Halabi and Shaykh al-Tusi also considered divorce in Khul' to be obligatory for the man.

Another example is the rejection of the blood money (Diya) of a woman being half; Sa'anei considers this ruling unjust from a conventional perspective given the equality of men and women in human identity and social and economic rights (confirmed by reason, the Book, and the Sunnah), and believes that narrations indicating the halving of a woman's Diya are discarded due to their contradiction with justice (the Quranic standard for rulings).

Special Attention to the Holy Quran

One of Sa'anei's primary foundations is the prioritization of the Quran. He utilizes the foundational rule of the precedence of the Quranic texts of definitive origin (Qat'i al-Sudur) over the narrations of non-definitive origin (Zanni al-Sudur) in the issue of Qisas. He cites two verses: “And We ordained for them therein a life for a life...” (Ma'idah, 45) and “Prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female” (Baqarah, 178) and considers their indication of equal Qisas for men and women to be clear and explicit (Nass). Therefore, he considers acting upon narrations that make the Qisas of a woman for a man conditional on the payment of half the man's Diya to be problematic due to their explicit contradiction with the Quran.

Regarding Women's Testimony, Sa'anei focuses on the verse “And if there are not two men [available], then a man and two women... so that if one of them errs, the other can remind her” (Baqarah: 282). Drawing an inference from the verse, he concludes that the ruling of two women's testimony being equivalent to one man's is, firstly, restricted to financial matters (debt) and, secondly, is not permanent and inclusive of all women. This is because, according to scholars of Usul, if a cause (Illah) is mentioned alongside a ruling and a matter appears as the cause, the ruling revolves around that cause. In his view, the cause in this verse is "the forgetfulness of one woman and the need for the other to remind her," which related to the social conditions of women at the time of revelation (lack of social presence and weakness in financial calculations). Since women today have a prominent presence in social fields and are precise in financial calculations, their testimony in court is equal to that of men because the problem of forgetfulness has been negated.

Revision of Evidence Based on Modern Conditions

According to Sa'anei, the dynamism of Fiqh is tied to the "revision of evidence"; this revision does not mean changing or discarding evidence or imposing external beliefs upon it, but rather presenting new questions to the texts and interrogating them for answers suited to these questions. This process is committed to the standard rules of Usul al-Fiqh and does not necessarily lead to Ijtihad in Usul; rather, using the same common methodology, it places the branches (Furu') into a new inferential process and arrives at different fatwas. For example, in the issue of the Puberty of Girls, the revision of evidence led him to maintain 13 years of age as an independent criterion for puberty.

Sa'anei divides the narrations indicating the puberty of girls at 9 years into three categories: 1. Absolute narrations referring to 9 years, 2. Narrations paired with other signs such as menstruation, and 3. Narrations explicitly specifying 9 years due to menstruation: "Because when a girl reaches nine years, she menstruates." Sa'anei infers from this set that 9 years is a "pointing title" (unwan mushir) and lacks inherent subject-matter significance; because the first category of narrations is restricted by the second and third categories, and based on the third category, menstruation is the cause and subject of puberty. Therefore, if a 9-year-old girl does not menstruate, she is not considered mature (baligh). Relying on a reliable (muwaththaq) narration, he considers 13 years as another independent criterion for puberty.

In support of this view, some contemporary writers also believe that the narrations of puberty (with different ages of 9, 10, and 13) were issued from the Infallible's capacity of branch-derivation (tafri')—explaining specific instances of a general rule—rather than the capacity of legislation (tashri'); since the main criterion is menstruation and the specific age (like 9 years) was an instance suited to the conditions of the time of issuance and is not absolutely binding in Fiqh.

Opposition to Consensus and Popularity

Yousef Saanei is among the jurists who, relying on evidence, issue fatwas without fear of contradicting consensus (Ijma') or popular opinion (Shuhrat). His specific fatwas, including the permissibility of Women's Marja'iyyah and Judgeship, Equality of Diya, and Equality of Qisas, are examples of this approach. In the issue of women's religious authority, he relies on the Conduct of the Rational (Sirat al-Uqala) and the judgment of reason (the referral of the ignorant to the scholar without difference between man and woman) and, by ignoring the claimed consensus, does not consider being male a condition for Marja'iyyah, judgeship, or Wilayah.

Sa'anei often considers consensuses to be "evidence-based" (madraki, i.e., based on existing proofs) and, by critiquing those proofs, considers consensus to lack independent validity. For example, regarding the Guardianship of the Mother, after disputing the transmitted consensus, he states: "If we accept the consensus, it is most likely based on narrations and is an evidence-based consensus; thus it is not a proof (hujjah)." This method removes the boundary between the inference of a ruling and the issuance of a fatwa; unlike jurists who consider consensus invalid in the position of inference but act with precaution (ihtiyat) in the position of fatwa (presenting their view to followers) and do not issue fatwas contrary to popular views.

Principle of No-Hardship (Nafi al-Haraj)

Another frequently used rule in Yousef Saanei's Fiqh is the Principle of No-Hardship (Nafi al-Haraj). From his perspective, this rule is a definitive ruling, but its breadth or narrowness is decisive. The basis of Sharia is established on the negation of difficulty and hardship (usr wa haraj), and "hardship" (haraj) is a conventional concept that lacks an independent religious definition, with convention being the criterion for identifying its instances. The principle of ease and facilitation in religion is a governing criterion and can even be used as a preference (murajjih) in the conflict of narrations.

His fatwa on the Mahramiyyah of the Adopted Child is a clear example of this approach. In response to a question about making a child mahram who was taken from welfare services and whose age has passed the nursing (radha') period, he states: the customary religious ways (nursing or marriage contract) are not possible in these cases; however, given that caring for helpless children is a recommended and desirable act (birr and ihsan) leading to "otherworldly reward and happiness in both worlds," the hardship and difficulty resulting from being non-mahram after the child's puberty (such as the problem of informing the child about the real parents, the spiritual suffering from childlessness, and the disruption of normal life) removes the prohibition of looking (nazar). Citing the principle that "Islam is a religion of ease and facility," he considers such hardship a justification for removing the prohibitory ruling (hukm taklifi). Prior to him, no jurist had so explicitly removed the prohibition of looking based on hardship.

Critics and Opponents

The specific jurisprudential fatwas of Yousef Saanei have drawn widespread criticism. The Society of Seminary Teachers of Qom, following a question regarding his Marja'iyyah, wrote: "The Society of Seminary Teachers of Qom, based on investigations conducted over the past year and after numerous meetings, has reached the conclusion that he lacks the necessary criteria for occupying the position of Marja'iyyah." At the same time, the Farda website claimed it had inquired about the opinions of other Maraja' offices regarding Yousef Saanei's Marja'iyyah; in this regard, the office of the Supreme Leader reminded of the need to refer to one of the Maraja' without an explicit answer, while other Maraja' offices did not consider the issuance of this statement sufficient to disqualify him from Marja'iyyah. The Assembly of Teachers and Researchers of the Qom Seminary also issued a statement expressing regret over this action.

Books and articles have been written in criticism of Yousef Saanei's jurisprudential views, including:

"Guarding Jurisprudence; A Critique of Ayatollah Sa'anei's Jurisprudential Views," by Husayn Hashemian, Ali-Asghar Hematian Sadrollahi Damghani, and Mahmoud Moqaddami, Tehran, Vosough, 1387 SH. "Rereading the Jurisprudential and Political Views of Ayatollah Sa'anei," by Omid Hosseini, Tehran, Center for Islamic Revolution Document Center, 1392 SH. "Defense of Islamic Fiqh and Politics," by Sayyid Muhammad Baqir Hasheminia, Tehran, Vosough, 1386 SH. "Examination and Critique of the Evidence for Ayatollah Sa'anei's Theory on the Equality of Diya for Muslim Men and Women," Contemporary Comparative Law Studies, by Muhammad Ibrahim-Nezhad, No. 7, 1395 SH. "Critique and Review: Contemporary Jurisprudential Innovations according to Jurisprudential and Ijtihadi Standards," by Mahdi Nikouei, Tehran, Athar-e Amin, 1385 SH. "Critique of Productive Riba," Ahl al-Bayt (AS) Fiqh Journal, by Reza Mohammadi Karaji, No. 58-59, 1388 SH.

Some of the criticisms of Sa'anei focus on his jurisprudential foundations and, in fact, reject them in terms of the major premise (kubra); such as the critiques aimed at the Principle of Justice. Other criticisms relate to the application of jurisprudential subjects to the aforementioned principles and are raised in terms of the minor premise (sughra); such as the criticism regarding the Mahramiyyah of adopted children, where the existence of hardship in this issue was not accepted.

Despite the critiques and opposition to Sa'anei's jurisprudential opinions, some of his critics maintain that his jurisprudential views cannot be called heresy (bid'ah); because not every innovation is bid'ah, and the condition for calling a view bid'ah is that, firstly, it must be presented as a part of religion, and secondly, no specific or general proof can be established for it from valid religious sources.