The philosophy of jurisprudence

Written by: Mohammad-Ali Sulṭān-Murādī, Muhammad-Kāẓim Ḥaqqānī-Faḍl

The philosophy of jurisprudence is a science that takes a second-order look at the foundations and presuppositions influential in the jurisprudential understanding of religious texts in order to define the coordinates and boundaries of jurisprudence. It is said that this knowledge enhances the ability to make jurisprudence practical and correct the process of understanding the Quran and Sunnah. One of the foundations that is influential in the practice of jurisprudence by jurists and is examined in the philosophy of jurisprudence comprises of theological bases: Is the domain of religion minimal or maximal? Are Islamic rules fixed or do they change according to time and place? Does jurisprudence have a goal? The foundations about the study of methods and resources of jurisprudence discussed in the philosophy of jurisprudence include: What is the place of reason in jurisprudence, and whether reason can play an independent role in inferences or not? Among the other factors, discussed in the philosophy of jurisprudence, that affect inferences are: distortion or non-distortion of the Quran, authenticity or non-authenticity of ancient hadith resources including the Four Books , as well as the opinions of jurists about the position of Ijmā‘ (consensus). Another question is whether issuing fatwas should be based only on religious texts, or the goals of Sharia can also be taken as bases? The philosophy of jurisprudence also deals with the epistemological foundations considered by jurists and explains their role in deriving the rulings: Is it possible to attain certainty about the rulings of Sharia? If not, is it possible to infer the rules of Sharia with assumption and supposition? Also, can the intellect find the criteria underlying religious rulings? Another part of the philosophy of jurisprudence consists of the foundations considered by jurists in the study of texts. These foundations include: what characteristics a religious text should have so that religious rulings can be extracted from it? Or is the religious literature customary or accurate? Also, should the understanding of a religious text rely only on the signification of the words, or should we seek to understand the intention of the writer, following the hermeneutic point of view? Discussions, dialogues and writings about the philosophy of jurisprudence in the Persian language have started since early 1370s SH (starting about 1991 AD). researchers such as Mahdī Mihrīzī, Mostafa Malikīyān, Ali ‘Ābidī-Shāhrūdī, Sayyid Mostafa Muḥaqiq-Dāmād, Ṣādiq Lārījānī and Abulqāsim Alidūst have written about it and the book Falsafi-yi Fiqh (philosophy of jurisprudence), containing a collection of articles on this subject, has been published by Hossein-Ali Bāy.

Position, importance and definition

Jurisprudence and the basics of jurisprudence

Jurisprudential ijtihad (analytical effort) arises from thoughts that form the conceptual (taṣavvurī) and acknowledging (taṣdīqī) foundations of jurisprudence. These foundations are sometimes discussed in sciences that are prerequisites of ijtihad, such as literature, the science of Rijāl (biographical evaluation of the transmitters of hadith) and fundamentals of jurisprudence, and sometimes they become accommodated in the jurist’s mind as fixed principles without being discussed . Thus, the jurist’s attitude greatly influences the way he makes inferences . These topics are sometimes discussed under various sciences and sometimes under the eight principles of jurisprudence (ru’ūs thamānīyyah), but still a coherent and codified knowledge has not been designed for it and it has not found its special position . The aforementioned presumptions can be traced mainly in the principles of making jurisprudential inferences based on the Quran, Sunnah, reason and ijmā‘ (consensus):

1. The Quran: The foundations set by jurists for making inferences based on the Quran, which are divided into the foundations of issuance (for example: the Quran has been revealed by God and is immune from distortion) and foundations of implication (for example: God intends to convey special notions by the words of the Quran) .
2. The Sunnah: When making inferences based on the Sunnah, the theological (Kalām) foundations of the authenticity of the single (vāḥid) and the frequently narrated (mutavātir) news are involved, and the authenticity of the rulings of reason depend on the rule of concomitance (mulāzimah) in Shia jurisprudence .
3. Reason and ijmā‘: That Shia jurisprudence –contrary to Sunni jurisprudence- does not recognize the authenticity of ijmā‘ as the “collective reason,” or the authenticity of ra’y (opinion) and qīyās (analogy) as the “individual reasons,” is itself based on an epistemological foundation that considers reason to be valid only in case of a certain and definite discovery .

What is the philosophy of jurisprudence?

The philosophy of jurisprudence is a science that arises from a second-order view about jurisprudence. This science aims at presenting fundamental topics that act as a science overseeing jurisprudence and investigates the theoretical and analytical foundations of jurisprudence, subject matter, predicates, issues, foundations, preliminaries, goals and methodology of jurisprudence, as well as its relationship with other sciences and phenomena . Some consider the philosophy of jurisprudence as a science that, in addition to focusing on the presumptions, goals, scope, etc. of jurisprudence, pays attention to issues related to jurisprudential ijtihad, the relationship between jurisprudence and jurist, and the way ijtihad works; such as the factors effective in ijtihad and epistemology of ijtihad . Philosophy of jurisprudence must not be mistaken with the “philosophy of rulings.” Philosophy of rulings oversees the quiddity (reason or goal) of religious rulings and can itself be part of the philosophy of jurisprudence .

Position and importance

According to some researchers, although issues of the philosophy of jurisprudence are intellectual topics and are not part of the science of jurisprudence , they must be proved with reason before introduction into jurisprudence . Therefore, awareness of the issues of the philosophy of jurisprudence has been considered as one of the conditions of ijtihad . The reasons mentioned for the necessity of the philosophy of jurisprudence include: greater ability to make jurisprudence practical, finding the true capacities of the resources of inference and correcting the process of understanding the Quran and the Sunnah .

Topics of the issues of the philosophy of jurisprudence

Topics of issues of the philosophy of jurisprudence have been listed as follows:

• Definition of jurisprudence
• Position and importance of jurisprudence
• Goal of jurisprudence
• The relationship between jurisprudence and other sciences
• Philosophical foundations of the historical evolution of jurisprudence
• The realm of jurisprudence
• Structure of the jurisprudential system
• Methodology of jurisprudence
• Nature of the jurisprudential ruling
• Stability or change of the jurisprudential ruling
• Various types of jurisprudential reasoning
• Definition of ijtihad (analytical effort)
• Fundamentals of ijtihad
• Relationship of interests and harms with the jurisprudential ruling
• Authenticity of sources of legislation
• Reliability of texts
• Methods of interpreting texts

The relationship between philosophy of jurisprudence and other homogeneous sciences

The philosophy of jurisprudence has topics in common with many other Islamic sciences; for example, the reliability of texts and the sanctity of religious texts are common with the science of theology (Kalām), and the nature of the jurisprudential ruling and its change or stability are of the issues that are common with fundamentals of jurisprudence (uṣūl-i Fiqh). Therefore, some believe that all the issues claimed by the philosophy of jurisprudence have been investigated within the fundamentals of jurisprudence . However, others believe that no other Islamic science examines some of the questions about jurisprudence and its issues; for example, whether it is possible to have non-obligatory laws (aḥkām-i Vaḍ‘ī) that are independent from laws entailing religious obligation (aḥkām-i taklīfī) is not an issue to be discussed in the fundamentals of jurisprudence . Since many of the presuppositions of jurisprudence are descriptive and some are derived from the science of theology, the issues of the philosophy of jurisprudence are also related to the science of theology. However, because jurisprudence has prescriptive presuppositions as well, and the philosophy of jurisprudence deals with them too, it has a wider range than just the theological presuppositions of jurisprudence .

Theological foundations

The jurist's perception of the definition and characteristics of religion affects his view of jurisprudence. Theological foundations such as the comprehensiveness and completeness of religion, whether religion is bound by its historical context or not, the relationship of man’s happiness in this world and the hereafter with the institution of religion, the relationship between religion and the inherent rights of man, accepting or not accepting God as the head of the wise (ra’īs al-‘uqalā’) and the possibility of verbal communication between God and man, form the foundations of a jurist’s basic stances. These foundations determine the jurist’s answer to each of the following questions: Are religious texts jurisprudential or customary and moral? Are jurisprudential rulings pre-eternal and eternal or not? Does jurisprudence aim at otherworldly good or total happiness in this world and the hereafter? Is morality the essence of jurisprudential rules? What is the nature of right? Do the rules of Islam address the mukallaf person (person responsible for his religious duties) or the rightful person? Does jurisprudence address a Muslim individual or the Muslim community? Jurists’ different answers to these theological questions of jurisprudence form the basic foundations of their jurisprudential opinions and are the reason for the difference between their fatwas and the fatwas of other jurists.

The realm of jurisprudence

Main article: Manṭiqat al-Firāgh and Maṣāliḥ al-Mursalah

The jurist’s understanding of issues such as the realm of religion and the scope of Sharia, minimal or maximal religion, and manṭiqat al-firāgh can transform his final fatwa. Does jurisprudence and Sharia in general address only the minimums necessary for life or do they deal with the maximum individual and social matters of man’s life? Is it possible to have no religious rule or text for part of the issues of life? Does the Sharia have a ruling on inward actions and beliefs? Does the realm of jurisprudence also include the manner of implementing the rulings? Does the mission of jurisprudence also include the thematics of rulings? Based on minimal jurisprudence, the Lawmaker has expressed religious contents in a minimal way and has left it to man’s intellect to make it as inclusive as possible. In this regard, in the theory of manṭiqat al-firāgh, Sayyid Muhammad-Bāqir al-Ṣadr relies on the اولوالامر verse to expand the scope of the obligation of obeying the command to a range beyond the scope of religious commands. According to the generally accepted premises of Shia jurisprudence, the expansion of the scope of jurisprudence to the recognition of non-external (internal) rulings results in the existence of rulings about non-volitional actions, and as a result causes a “belief cycle”. On the other hand, one group believes that the departure of internal rulings from jurisprudence happened in a historical process and has no rational jurisprudential basis , and in addition, although beliefs are not optional, they are formed on the basis of certain preliminaries and actions, and those preliminaries can be the subject of jurisprudential rulings. The general atmosphere of jurisprudence did not traditionally consider presentation of methods as part of the scope of jurisprudence. However, not offering an implementation method could lead to the abandonment of the rulings. Also, there were issues such as enjoining the good and the Ḥisbīyyah matters which were stated along with the method of execution. Therefore, presentation of methods was also introduced into the scope of jurisprudence.

Being bound by the historical context and the fixed and variable in jurisprudence

Main article: Historical context-bound rulings

The prerequisite of examining stability and change in religious rulings (which is of the theological foundations of jurisprudence) is to answer these questions: Are all the rulings of Islam fixed? What is the criterion for distinguishing variable rulings from fixed ones? Do the two elements of time and place have an effect on inferring the rules of Sharia? On the other hand, was the audience of jurisprudential texts only the society of those days? Are the conditions of the society and the prevailing situations influential in the interpretation of religious texts? One group believes that rulings are bound by historical context, but traditional viewpoints that deny the modern foundations of being bound by historical context consider the clear implication of some verses and hadiths, the emergence of jurisprudential rulings from factual propositions, and the positional absoluteness of rulings as the reason for their immortality. Nonetheless, supporters of such traditional viewpoints have tried to explain some of the necessary changes in jurisprudential rulings under the topic of fixed and variable rulings. In fact, they have accepted that not everything in jurisprudential works is transhistorical, but some rulings refer to a certain time and place. In this regard, jurists of the jurisprudential school of Qom try to revise the historical factors of discovering the true intention of the Lawmaker according to topics that have been customary in jurisprudence, such as the circumstantial and verbal evidence. Discussions such as the division of religious teachings into essential and accidental, or the essence and shell of religion are in line with believing that rulings are bound by the historical context, and accepting each of these explanations will lead to the division of jurisprudential rulings into fixed and variable ones.

Systematicity and purposefulness of jurisprudence

Like debates about the “principles of jurisprudence” , the philosophy of jurisprudence asks whether jurisprudence is a science or a technique. The non-systematic (technical) approach to jurisprudence considers it a set of religious issues and reduces ijtihad (analytical effort) to the jurists’ ijtihadi (analytical) activities (collection of their discussions, dialogues, arguments, refutations and affirmations). But the systematic view of jurisprudence considers it as not just a collection of issues, but a knowledge in a scientific form. Assuming this scientific form for jurisprudence will be the basis for deciding whether jurisprudence is a coherent and systematic knowledge for determining social rulings and therefore is part of the social sciences or, considering its many and inherent similarities with sciences such as “legal theory”, it can be regarded as a human science. But what is generally called “systematicity of jurisprudence” is comprehensiveness and coverage of all aspects of the life of the mukallaf person (individual, social, political and etc. jurisprudence). This perception is covertly based on a positive answer to the questions of whether jurisprudential rulings are systematically related and is it possible to reach a criterion to determine the sphere of influence of jurisprudential rulings and also to prioritize them or not? Systematicity and purposefulness are connected in some way. Therefore, when questioning about the systematicity of jurisprudence, there is the question of whether jurisprudence has a goal and, if so, what is that goal? The theological basis considered by all jurists is that the goal of Islam as an intellectual system is to determine human happiness. Based on this attitude, jurisprudential ijtihad is a methodical effort to understand religion and the rules of sharia governing man’s life. Thus, jurisprudence, as one of the branches of religious ijtihad, is in serious connection with theological and ethical ijtihad in Islam.

Methodological foundations

The methodological issues of jurisprudence are all formed under the questions as to what are the characteristics of each of the four sources of jurisprudence, i.e. the Quran, Sunnah, ijmā‘, and reason? What is their degree of validity? What is the relationship between these sources, and does one take precedence over the other? What is the method of understanding religious and jurisprudential texts? And what is the relationship between the results of referring to custom, or research based on scientific methods (including linguistics), to discover the intention of the Lawmaker and the method of inferring the rulings, which has led the science of jurisprudence to accept or reject it?

Authority of the rational reason

The basic discussion on the position of reason in jurisprudence is about determining independent rulings of practical reason (Mustaqillāt al-‘Aqlīyyah) as the affirmative principles of jurisprudence (the major premise of jurisprudential propositions) and the compliance of the rulings of Sharia with real benefits and harms. This discussion was raised under a debate titled “connection or non-connection of the rule of reason and the Sharia” (the rule of connection) and also the possibility of discovering the criteria of the rulings.

Authority of textual sources

Difference of attitudes about the issue of distortion or non-distortion of the Quran, the authenticity or lack of authenticity of ancient hadith sources including the Four Books, as well as the view about ijmā‘ (consensus) and the scope of man’s rational cognition, result in difference of fatwas and the formation of numerous jurisprudential approaches. Formation of the two traditionalist (Ikhbārī) and fundamentalist (uṣūlī) approaches, the jurisprudential schools of Qom and Najaf, or the movement known as enlightenment or new religious thinking, is caused by the difference in answers to the aforementioned questions. Fundamentalists base their method of understanding on intellectual foundations. Traditionalists consider the main source of rulings to be exclusive to hadiths, and apart from considering intellectual reasons to be invalid, they even consider the manifest meanings of the Quran to be valid only with the special confirmation of hadiths.

Exoteric jurisprudence (fiqh-i ẓāhirī) and objective oriented jurisprudence (fiqh-i Maqāṣidī)

Main article: purposeful jurisprudence

The question raised by a group of contemporary jurists is whether the methods of non-formalist jurisprudence such as the spirit of Sharia, the taste of Sharia and the goals of Sharia, can be used to reach a ruling of the Sharia or not. The function of these methods is to pass through the superficial layer of jurisprudential sources and reach the real intention of the Lawmaker. The basic doubt about the “taste of Sharia” is that leaving out literal inference from the sources is an invalid method in Shia jurisprudence; including invalid unconscious thoughts and juristic preference (istiḥsān). Determining the nature of these methods and evaluating their validity and compliance with reality is the responsibility of the philosophy of jurisprudence.

Epistemological foundations

In the epistemological foundations of jurisprudence, the philosopher of jurisprudence seeks to clarify the point as to whether it is possible to find certainty about the rules of Sharia. If it is not possible, is it possible to find out the rulings with uncertainty? Where is the limit of either certainty or uncertainty and guess in jurisprudence? The theories of closure and opening up of the door to knowledge of the Imam and knowledge of religious scholars in the books of principles of jurisprudence indicate the answers given by jurists to these questions. On this basis, the philosophy of jurisprudence asks whether the closure of the door to knowledge of the Imam is considered a form of limited skepticism or not. Additionally, many topics in classical hermeneutics, such as the impact of the circumstances surrounding the issuance of hadiths or the influence of the jurist’s lifestyle on his understanding of evidence, can be considered as part of the epistemology of jurisprudence. Similarly, the influence of jurisprudence from other human sciences, which was raised following the theory of the theoretical contraction and expansion of the Sharia, can be regarded among the foundations of the epistemology of jurisprudence. One of the most significant discussions in the epistemological foundations of jurisprudence is the examination of the possibility of recognizing the criteria of rulings, which has a clear connection to the purposive and criterion-based jurisprudence. Altogether, these inquiries can serve as a basis for conceptualizing debates such as “authoritativeness,” “realism,” “purposivism,” or “criterionism.”

The possibility of recognizing the criteria of rulings

In discussing the possibility of uncovering the criteria of rulings, each jurist’s perspective is closely linked to his theological and epistemological foundations. Opponents of rationalism do not accept the mind as a source. Some have argued that God’s actions being guided by purposes contradict certain verses and hadiths that explicitly state that the intellect cannot grasp the criteria of the rules of Sharia. They claim that considering the intellect as a source is contrary to the beliefs of Muslim scholars and implies that the highest good is superior to God. In contrast, rejecting the arguments of those who rely on texts, rationalist jurists have accepted that a ruling of the Sharia, as an optional action of God, necessarily follows a righteous purpose, and there is no preference without a preferable in God’s voluntary actions. On the other hand, some view the intellect as a means of discovering the rulings of Sharia and believe that without considering the purposes behind these rulings, it is not possible to discover the laws about new issues.

Foundations of textual analysis in jurisprudence

A jurist’s view about what a text is and his definition of the specific characteristics of the two main religious texts (the Quran and hadiths) form the foundations of textual analysis in ijtihad. The path of jurisprudence, from religious text to the fatwa, clarifies what features turn the texts that reflect the sayings and actions of the Infallible people into jurisprudential documents. The features mentioned in traditional jurisprudence include: being explanatory, voluntary and not based on taqīyyah (dissimulation of one’s belief to protect oneself). The questions raised in this regard include: What transforms these characteristics into criteria for distinguishing statements and actions that determine religious laws from ordinary statements and actions? Is the literature of religious texts conventional or precise? Viewing religious texts as conventional may raise doubts about the validity of fundamental principles such as Iṭlāq (generality) and ‘Umūm (inclusiveness).

The historical nature of the text

Another question relates to the historical context of rulings and the jurisprudential foundations of textual analysis: Should the conditions of the society receiving the rulings be considered in the understanding and interpretation of religious texts? Is it possible for a statement to be meaningful outside the linguistic context of its intended audience? Those who have a historical standpoint argue that the implications of the words of texts, even though they originate from a divine source, necessarily depend on the linguistic context of their direct audience. Thus, denying the historical context-bound nature of religious concepts eliminates the specific connotations of texts. Conversely, proponents of the eternality of texts, drawing on the longstanding belief among Muslims about the divine origin and eternal nature of the words of the Quran, argue that reflection of the false elements of the culture of pre-Islamic ignorance in the Quran contradicts the divine wisdom.

Hermeneutics and Jurisprudence

Main Article: Hermeneutics and Jurisprudence

Based on hermeneutical teachings, each reader interacts with a text influenced by their specific temporal and spatial characteristics, as well as their preconceptions. Consequently, different audiences have varied interpretations of the same text, and none of these interpretations is compatible with what the speaker intended in every respect. Therefore, the central question of hermeneutics, or the science of interpreting texts, is: given the “gap between the speaker and the audience,” what criteria govern explaining and mutual understanding in interpretable texts, especially in religious texts that are ancient resources? Therefore, depending on the level of the disparity of conditions and the impact of preconceptions, this question becomes more significant, and accordingly, the responses become varied. The mainstream of Shia jurisprudence considers itself to have a “non-interpretive” approach, focusing on uncovering the literal meanings of texts and seeking “the meanings of words,” rather than the “intent of the speaker.” In contrast, “interpretivists” aim to discover the speaker’s intended meaning. According to interpretivists, jurists require interpretation of the vocabulary, propositions, and issues raised in religious texts to derive religious rulings. Classical hermeneutics has several similarities with the principles of jurisprudence, including author-centered interpretative approaches, objectivism, the fundamentality of literal meaning, and the adherence of text interpretation to general comprehension rules, such as the fundamentality of truth.

The relationship between jurisprudence and other sciences

Jurisprudence and law

Main article: Jurisprudence and law, and jurisprudence and human rights

One of the issues in the philosophy of jurisprudence is determining the relationship between jurisprudence and law, whether it is one of equality and distinction, or generality and specificity. The questions raised in this regard include: the relationship between the rules of Sharia and the law, the relationship between the subject matter of the science of jurisprudence and legal sciences, and the relationship between the scope of jurisprudential rulings and legal subjects. Additionally, if these two fields have fundamentally different natures, can religious rulings be considered the basis for laws? The relationship between jurisprudence and human rights has also posed new questions for jurists, which could be a topic for philosophical research.

Ethics and jurisprudence

Main article: jurisprudence and ethics.

The philosophy of jurisprudence examines the relationship between jurisprudence and ethics from two perspectives: first, it looks at the relationship between moral judgments of reason and the rules of Sharia, and second, it explores jurisprudence as a normative system in contrast to ethics (as another normative system). In this regard, rationalists (the ‘Adlīyyah) and theorists of the divine command theory (the Ashā‘irah) face off against each other, with the former believing that the Sharia follows ethics, while the latter seeks to deny this.

Background, sources, and experts of the philosophy of jurisprudence Philosophy of jurisprudence

“Philosophy of jurisprudence” is a relatively modern term, emerging in the second half of the 14th Solar Hijri century. It appears that Mahdi Mihrīzī’s article titled Falsafi-yi Fiqh published in 1997 in Yādnāmi-yi Khātamī, along with the interview, published in the Naqd va Naẓar quarterly journal, with Mustafa Malikīyān, Ali ‘Ābidī Shāhrūdī, Sayyid Mustafa Muḥaqiq Dāmād, and Ṣādiq Āmulī Lārījānī titled Falsafi-yi Fiqh dar Naẓarkhāhī az Dānishvarān, are among the earliest written efforts in this regard. The meaning of the “philosophy of jurisprudence” has been somewhat ambiguous, and much of the research under this heading has merely questioned what the philosophy of jurisprudence actually is. As a result, this field of study has been considered undeveloped and lacking a distinct identity. In recent decades, many researchers in the field of jurisprudence have addressed issues related to this area, including: Abulqāsim Ali-Dūst, Sa‘īd Ḍīyā’īfar, Sayyid Mohammad-Ali Ayāzī, Abulqāsim Fanā’ī, Mohammad-Ibrahim Jannātī, Sayyid Mohsen Mūsavī Gurgānī, Mohammad Mujtahid Shabistarī, and Ahmad ‘Ābidī.

Main references

The most significant study resources of the philosophy of jurisprudence, published under this title in Persian, include: Falsafi-yi Fiqh: A two-volume collection of selected articles by Hossein-Ali Bāy. Guftārī dar Falsafi-yi Fiqh: Compiled by Ali Mohammadī Jurkūyih, this work includes several statements of researchers in the field of Islamic philosophy and jurisprudence. Pīrāmūn-i Falsafi-yi UṢūl-i Fiqh: Bā Nigāhī bar Ārā-yi Ayatollah al-‘Uẓmā Sheikh Muhammad Hossein Gharavī Isfahanī; a work by Mas‘ūd Fayyāḍī. * Falsafi-yi ‘Ilm-i Fiqh: A work authored by Sa‘īd Ḍīyā’īfar, which examines jurisprudence from the three aspects of subject matter and scope, objectives, and theological foundations. The Qabasāt quarterly journal published its issue number 32 (1383 SH/2004 AD) as a special edition on the philosophy of jurisprudence. Guftugūhā-yi Falsafi-yi Fiqh, is the name of a work featuring discussions with Ali ‘Abidī Shāhrūdī, Nāṣir Kātūzīyān, Ṣādiq Āmulī Lārījānī, Mohammad Mujtahid Shabistarī, and Mostafa Malikīyān. Some of these dialogues were previously published in the Naqd va Naẓar quarterly journal.

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