Reflection on Islamic jurisprudence, transformation in law (Book)

Author: MohammadQasim Mobarez

• abstract

Reflection on Islamic jurisprudence, transformation in law (Book), (in persian: تأمل در فقه، تحول در حقوق (کتاب)) authored by Nasser Ghorban-Nia, is a legal - jurisprudential book in Persian that addresses various legal challenges related to women and criminal law. It seeks to resolve issues such as women's testimony, their right to judge, retribution, and compensation, as well as the crime of killing a woman in the context of marriage. The primary aim of this publication is to align the civil rights and laws of the Islamic Republic of Iran with contemporary conditions while highlighting the potential of Imamiya jurisprudence. The strategies employed in the book include reliance on non-conventional fatwas, careful consideration of the evidence and documents used for inference, awareness of the variations in temporal and spatial conditions, customs, traditions, ethics, and social consequences, as well as the application of reason, justice, public interest, the objectives of Sharia, and guiding principles.

The author claims that while gender does not inherently lead to differences or discrimination in Islam, certain laws in the Islamic Republic are indeed formulated based on gender. Nevertheless, the Imamiya jurisprudence possesses the necessary capacity to address these legal challenges.

General overview

"Reflection on Islamic jurisprudence, transformation in law" was initially published as a series of scholarly articles in various journals and compilations between 1999 and 2009. In 2013, it was released in book form by the Mizan Legal Foundation, in 384 pages. The author aims to align the civil laws of the Islamic Republic of Iran with contemporary circumstances and to elucidate the potentials of Imamiya jurisprudence. Dr. Naser Ghorban-Nia (1964-2015), a former assistant professor at the Faculty of Jurisprudence and Law at Mofid University in Qom, authored over fifty books and articles. His books, "Ethics and International Law" and "Legal Justice," received first and second place at the Book of the Year Festival in 1999 and 2002, respectively.

Book structure

This book is organized into an introduction and four distinct chapters, with each chapter comprising several sections. The introduction of the book focuses on defining Islamic jurisprudence, law, their interrelationship, and the necessity of revisiting legal frameworks in light of the potential offered by Islamic jurisprudence. The author argues that law, as a set of rules that govern a specific society, only partially address the four fundamental human relationships—namely, the relationship of individuals with society, and the natural world—aiming to foster order and justice. In a religious society such as the Islamic Republic of Iran, the effectiveness and enforceability of laws depend on their alignment with Islamic jurisprudence, which serves as the cultural and ethical heritage of the community. Consequently, Islamic jurisprudence requires reflection and reevaluation in response to the evolving conditions of time, place, and social ethics. In the first chapter of the book, "Discussions on Women's Rights," the author addresses legal challenges related to women that have contributed to the perception of gender inequality between men and women. The author critically examines the evidence surrounding these issues, including the credibility of women's testimony in matters of personal rights, punishments, retribution, blood money, women's right to judge, and gender-based disparities in legal penalties. The second chapter of the book addresses three key issues: imprisonment due to the application of retribution, murder in the marriage bed, and punishment in public. The arguments supporting each of these issues are thoroughly examined. In the third chapter, "Two Philosophical and Criminological Issues," the author explores the purpose and rationale behind punishment (p. 253). Ghorban-Nia identifies four theories: social defense, absolute justice, deterrence and prevention, and the rehabilitation and education of offenders, as the reasons for punishment. He argues that Islamic punishment encompasses these theories and asserts that it is insufficient to prevent crime solely through punishment without addressing the underlying causes of poverty and implementing measures to alleviate it in society. Chapter four of the book features a dialogue and a series of questions and answers that explore the connection between Islamic jurisprudence and Law. through this dialogue, Ghorban-Nia characterizes the relationship as encompassing both general and specific aspects.

Principles Against Gender Discrimination

According to Ghorban-Nia, while some laws in the Islamic Republic of Iran are formulated based on gender and gender biases, gender does not inherently result in discrimination or disparities in rulings. He contends that differences in rulings arise from other factors. The author's key principles are:

Women in the Quran: Standing Alongside Men

The author believes that despite the historical violation of women's rights, the Quran and religious texts present women as equal to men in essence and nature. Women possess the same spiritual and psychological potential for growth and decline as men. According to the author, the Quran regards both genders as equal in their pursuit of perfection, obedience, guidance, choosing between right and wrong, and actions. It recognizes the genuine creation of both and emphasizes that all humans, regardless of gender, are considered God's vicegerents, worshipped by angels, and addressed by the Quran. Therefore, women, like men, are entitled to economic and political independence, and the right to social participation (pp. 26-31).

The potential of Islamic jurisprudence in addressing challenges

In the context of two contrasting views on Islamic jurisprudence, where one perspective considers legal rules to be ineffective and calls for their exclusion from civil law, while the other regards these rules as synonymous with religion, insisting on their unchanging and binding nature, Dr. Ghorbani-Nia contends that a thoughtful analysis of Imamiya jurisprudence demonstrates its capability to bring about change in the legal framework of the Islamic system (p. 24).

Quranic verses and narratives that reflect the esteemed position of women

According to Ghorban-Nia, gender does not lead to discrimination within religion. He cites numerous verses of the Quran and narratives that highlight the virtues of women in Islam, along with examples of exemplary women found in the Quran and Hadith, which demonstrate the significance of women and their equal status to men (pp. 27-31).

Justice as the basis of the Quran and Sharia law

According to Ghorbani-Nia, justice is the fundamental principle and basis of the Quran and Islamic law, and it should be the primary objective of legal systems and lawmakers. He argues that laws based solely on order and security, without ensuring justice, will not endure. Thus, he believes that in Islamic jurisprudence, justice is not subordinate to legal rulings but rather governs them and serves as a measure of Islam. According to the author, many of the legal and jurisprudential regulations concerning women, which raise concerns of injustice, are not quite certain. Consequently, justice serves as the primary theoretical foundation for Ghorbani-Nia's advocacy for women's rights and the reform of laws (pp. 34-38).

Societal transformations and the requirements of the time

Another criterion that the author believes makes the transformation and reevaluation of jurisprudence and law essential, which in turn helps to resolve the previously mentioned challenges, is the recognition of the changing nature of concepts, values, social customs, and the requirements of the time in the context of elicitation and legislation. Accordingly, when the Quran instructs to enjoin good, the notion of what is considered good today differs significantly from that of a thousand years ago. This includes the transformation of the concept of male guardianship from one of dominance to one of duty, a shift in the perception that men have ownership over women, changes in attitudes towards the punishment of stoning, modifications in the roles of judges, and variations in the definitions of alimony, as well as differences in women's education and their capacity to contribute to the economy and administrative matters (pp. 43-48 and 82). The writer believes that when a clear directive is present, it should undoubtedly be followed. Nonetheless, there is a vast area where either a conclusive ruling is absent or it involves a novel situation that has no established ruling. In such cases, Islamic jurists and legislators can exercise independent reasoning (ijtihad) and establish appropriate laws based on the needs of the time, including matters such as the travel of unmarried women for educational purposes and pilgrimage abroad, as well as running for presidency.

Fatwas that are at odds with the generally- accepted rulings

The author distinguishes between Islamic law and the rulings of Islamic jurists, asserting that the legislator in the Islamic Republic of Iran has adopted the generally-accepted fatwas as a standard. However, the author contends that if a generally-accepted fatwa is not considered a necessity or widely agreed upon, it is permissible to utilize alternative fatwas that align more closely with justice in the legislative process (p. 51). Consequently, the author has identified certain rulings among the Islamic jurists' interpretations that support his perspectives in addressing the aforementioned challenges.

Ghorban-Nia has identified several challenging rules that are formulated based on generally-accepted fatwas. He argues that fatwas that deviate from the mainstream are more aligned with justice and contemporary circumstances, making them suitable for legislative purposes. This includes matters such as the age of maturity for girls at nine, disparities in inheritance rights between husbands and wives, and the mother's right to custody (pp. 52-57).

Reason and the principles of rational thought

According to the author, in cases of disagreement, one should prioritize evidence that aligns with reason and rational principles (pp. 100-101).

Challenges Facing Women's Rights

In his book, Ghorban-Nia addresses various challenges related to women in Islamic jurisprudence and seeks to resolve the existing discrimination in rulings by utilizing jurisprudential tools. These issues include:

The testimony of women

In general, the disparity in the value of testimony between men and women in criminal matters is reflected in two ways within the laws of the Islamic Republic of Iran and Islamic jurisprudence. First, there are instances where a woman's testimony is accepted in principle, but it does not hold the same weight as that of a man; for example, according to Articles 74 and 75 of the Penal Code regarding adultery, the testimony of two women is equivalent to that of one man. Second, there are cases where only men's testimony is considered valid, and women's testimony is entirely disregarded; this includes offenses such as adultery, sodomy, lesbianism, pimping, false accusation of fornication, drinking alcohol, corruption on earth, theft punishable by a fixed penalty, and premeditated murder as outlined in Islamic penal law.

a. Testimony of women regarding the right of God (Haqq Allah) and the right of people (Haqq al-Nas)

The author founds one of his classifications on distinguishing between the right of God and the right of people: 1. In cases related to the right of God, such as punishments, the general rule is that the testimony of women is not accepted unless there is specific evidence or narrative to support it. 2. Regarding the right of people, such as in cases of agency or wills, there is a divergence of opinion among Islamic jurists, which stems from differing interpretations of the narrations. 3. In certain situations, such as financial matters and the proof of adultery, the acceptance of a woman's testimony requires corroboration from a man's testimony.

b. The testimony of women in matters of retribution and blood money

Ghorban-Nia has presented four jurisprudential perspectives regarding the significance of women's testimony in the context of retribution and blood money:

1. The testimony of women is not considered valid in cases of retribution and blood money in an absolute sense.
2. The testimony of women is regarded as valid in cases of retribution and blood money without any limitations.
3. The testimony of women is accepted in matters of blood money but not in cases of retribution (according to Islamic penal law).
4. The testimony of women is acknowledged in both retribution and blood money when accompanied by male testimony, but it is not deemed valid on its own.

By examining the documentary evidence of four perspectives, the author asserts that the first and second viewpoints are based on differing and conflicting narratives. In contrast, the third and fourth perspectives are based on resolving these narrative conflicts. After analyzing the documentation of all four viewpoints, the author favors the second perspective, which advocates for the absolute validity of women's testimony in cases of retribution and blood money. The rationale for this preference lies in the strength of the supporting evidence for the second viewpoint and its alignment with rational principles and thoughts taken root in the minds of rational people.

c. Establishment of the principle

Considering the differing narratives and perspectives regarding the testimony of women, Nasir Qurban-Nia asserts that in situations where it is uncertain whether women's testimony can substantiate a claim, one should revert to fundamental principles. He identifies the third principle among three options: 1. the outright rejection of women's testimony, 2. the rejection of testimony in matters concerning the right of God while accepting it in matters concerning the right of people, and 3. the acceptance of women's testimony. He favors the third principle, which he believes aligns with the overall approach of the Quran, the majority of narratives, and certain fatwas (pp. 102-105).

d. Conclusion

Ghorban-Nia has examined the reasons behind the disparity in the value of testimony between men and women by analyzing various Quranic verses and narratives. Among the verses related to testimony, only the verse concerning "debt" explicitly states that the testimony of one man is equivalent to that of two women. According to Ghorban-Nia, this verse does not serve to establish the validity or nature of testimony in court; rather, it functions as a guiding principle regarding the acceptance of testimony, as the verse does not address disputes or conflicts. He also explores alternative interpretations, such as the possibility that this ruling is specific to situations where women's memory may be compromised or in financial matters, thereby arguing against the notion of a higher value placed on men's testimony over women's in this context. Although there are numerous narrations indicating the unequal weight of testimony of men and women, the author believes that some of these narrations are weakly documented, and others contradict established religious teachings. In his view, ultimately, the narrations do not provide more evidence than the Quranic verses. The author ultimately concludes that testimony is primarily a duty rather than a right or privilege. Furthermore, the restrictions on women's testimony are specifically related to the limits set by God (Haqq al-Allah) and are not indicative of a broader inequality between men and women. Instead, these limitations stem from the nature of these boundaries, as their primary purpose is to rehabilitate the offender, encourage repentance, and maintain the confidentiality of crimes. Consequently, the significance of the offender's honor necessitates a degree of leniency in the establishment of guilt, which in turn restricts the acceptance of women's testimony. However, the author does not clarify that if this limitation is characteristically related to divine rights, why it is exclusively applied to women's testimony and not to men's.

Women's right to judge

According to Ghorban-Nia, the entitlement of women to exercise judgment under the legal statutes of the Islamic Republic of Iran is grounded in widely recognized fatwas. Although there have been several reforms and advancements, women remain without the right to participate in judicial functions or to deliver rulings (pp. 116-117). In his work, Qorban-Nia explores the widely recognized views of both Shia and Sunni jurists, delving into the evidence and rationale behind this opinion. According to the author, the arguments and evidence do not validate the widely held belief that women should not be allowed to judge. The justifications for this widely recognized view are outlined as follows:

1. The verses of the Quran, including verse 34 of Surah An-Nisa (الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ), verse 228 of Surah Al-Baqarah (وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ), verse 33 of Surah Al-Ahzab (وَقَرْنَ فِي بُيُوتِکُنَّ), and verse 18 of Surah Az-Zukhruf, have been interpreted to suggest that due to men's superior capacity for reasoning and endurance in the face of challenges, their guardianship extends beyond the marital relationship. It is argued that in social interactions and public roles, such as governance and judicial matters, men are deemed the guardians of women. Women, being more emotional, are considered to lack the decisiveness and firmness required for judgment, thus leading to the recommendation for them to remain at home.

However, the author argues that the role of a judge is unrelated to guardianship, citing the opinions of certain contemporary jurists and evidence from the Quran. He interprets the first two verses as specifically pertaining to the marital relationship between husband and wife. Furthermore, the author considers the widely recognized interpretation of the second and third verses as a form of personal preference that does not align with the current societal context, where many women possess intellectual and decision-making capabilities (pp. 122-128).

1. Narrations: The second reason for the widely recognized fatwas against the judicial authority of women is based on narrations; however, the author claims that he has not found even a single credible narration that provides clear and explicit evidence (p. 154).
2. The consensus: the perceived inherent deficiency in women's intellect, traditional practices, the expectation for women to remain at home, and the principle of the non-acceptance of women's judgments are among the reasons for the widely held fatwa on this matter. However, according to Ghorban-Nia, these reasons are unsubstantiated, insufficient, and largely based on personal preference. Ultimately, the author argues that even if the prevailing opinion were to be validated, the nature of judgment today differs significantly from that discussed in Islamic jurisprudence, as contemporary judges primarily act as enforcers of the law rather than as jurists.

Retribution and blood money

According to Ghorbani-Nia, there are four notable differences between men and women in the context of retribution and blood money under Islamic Penal Law: 1. Retribution for murder: In this case, the male perpetrator can only be avenged by the victim's female relatives if they pay the additional blood money, whereas this condition does not apply to the retribution for a female victim. 2. The blood money for a woman is half that of a man. 3. A father cannot be avenged for the murder of his child, while a mother can be. 4. The act of murder in the marriage bed is specifically the husband's domain, and a woman does not have the right to kill if she finds her husband with another woman, even in an illicit context. In these matters, Ghorban-Nia asserts that:

1. In the matter of retribution, the verses of the Quran, along with reason and justice, do not indicate any distinction between men and women. The claimed consensus lacks validity as it is based on narratives. Therefore, the only widely accepted justification stems from clear and abundant traditions. Ghorban-Nia, referencing the views of a contemporary jurist, characterizes the narratives on this subject as contradictory to the Quran, sunnah, reason, rational customs, and established principles of Islam (pp. 160-161).
2. While there is a consensus among both Shia and Sunni scholars regarding the blood money for men being double that of women, this disparity is not attributed to gender or the inherent value of men. Instead, it stems from the economic status of men within the family. However, if the economic positions of men and women are equal, should the blood money for both be the same? Ghorbani-Nia argues that the principle of blood money is a fixed aspect of religious law, while its amount is subject to change. Consequently, insurance companies are obligated to pay equal blood money (pp. 166-168).
3. Ghorban-Nia points out that, according to the widely recognized fatwa and civil laws of the Islamic Republic of Iran, which are formulated based on the widely recognized, a father is not subject to qisas (retribution) for the murder of his child, whereas the mother is. However, he favors a contrary opinion, which asserts that the mother should also not face qisas for the murder of her child. He believes this perspective aligns better with the wisdom behind the principle of non-retribution and the rule of precaution (p. 170).

Murder in the marriage bed

The issue of murder in the marriage bed, as recorded in Article 630 of the Islamic Penal Code according to a widely-recognized fatwa, has faced significant criticism from Ghorban-Nia. He argues that the rationale for permitting such killings, as cited by certain Imamiya and Sunni jurists, is based on three factors: the provocation and emotional distress of the husband, the defense of honor and dignity, and the enforcement of divinely sanctioned punishment. However, he contends that the criteria and conditions for justifying such a killing are not met in any of these foundations. In his view, this act is contrary to the fundamental principle and is considered an exception, with Islamic jurists relying on weak evidence and narratives to justify it. He notes that unreliable sources have led figures like Seyyed Abolqasem Khoe'i and Hossein Ali Montazeri to refrain from issuing a fatwa permitting killing in the marriage bed (pp. 171-174).

Criminal Laws and Rights

The author not only addresses issues and challenges related to women but also explores various topics in criminal law and legal matters, including:

1. Imprisonment: Nasser Ghorban-Nia, while examining the reasons and factors associated with imprisonment and its various aspects, argues that although Islamic jurisprudence recognizes imprisonment as permissible in certain situations, the inherent dignity and freedom of individuals, along with the ineffectiveness of imprisonment in reforming and educating offenders, and preventing crime, suggest that since most imprisonments are punitive in nature, lawmakers should minimize the use of imprisonment and seek more effective alternative solutions.
2. Public Punishment: The author critiques the rationale behind this form of punishment, arguing that, according to various narratives, the act of punishment itself is not desirable. Instead, the primary objective of the lawgiver is to deter and rehabilitate the offender. This goal, the author contends, cannot be achieved through public punishment today; in fact, it may have the opposite effect. Consequently, the implementation of public punishment for offenses other than adultery—which has a basis in the Quran—lacks any legal justification (p. 244).
3. Conclusion: Regarding Islamic punishment, the author emphasizes the fundamental principles governing penal measures. These principles include the alignment of punishment with its intended purpose, the proportionality between the crime and the punishment, deterrence and rehabilitation of the offender, and consideration of the individual, societal context, and the character of the offender. The author believes that the forgiveness of punishment for a remorseful individual (repentant), a mentally ill person, a suspect, and in cases of qasamah (joint oath) aligns with these principles.

Book evaluation

1. Despite his meticulousness and adherence to the principles and nuances of reasoning in supporting his claims, the author has not established a clear criterion for providing evidence. Consequently, at times, he favors his assertions over opposing opinions, while at other times, he relies on verses of the Quran and narrations, foundations and philosophy of principles, or the social implications and consequences of a particular law.
2. Since the book is a compilation of various articles, the organization of the content and the chapter divisions are not particularly satisfactory. For instance, it would have been more appropriate to place the discussion on the philosophy of punishment and crime analysis at the beginning of the book, allowing readers to grasp the foundational concepts of crime and punishment from the outset. However, this discussion is found in the third chapter. Additionally, certain topics, such as "murder in the marriage bed," are mentioned in both the first chapter (p. 171) and the second chapter (p. 212).

References

• Holy Quran
• "Who was Dr. Naser Ghorban-Nia?", Hawzah Official News Agency, January 19, 2014.
• "Naser Ghorban-Nia", Mofid University website. Department of Law (2001-2015).