Expediency-Based Rulings in Islamic Jurisprudence (Book)
Expediency-Based Rulings in Islamic Jurisprudence (احکام مصلحتی در فقه اسلامی) is a book in the field of political jurisprudence (*Fiqh al-Siyasi*) authored by Seyed Mahmoud Madani. This book consists of four chapters, and its most important chapter examines the types of expediency-based rulings (*Ahkam Maslahati*) and their evidence. The author considers an expediency-based ruling a form of legislation and believes that these rulings must be made within the framework of the fixed principles of religion and independent reasoning (*Ijtihad*).
| Expediency-Based Rulings in Islamic Jurisprudence | |
|---|---|
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| Book Information | |
| Author | Seyed Mahmoud Madani |
| Subject | Political Jurisprudence |
| Style | Analytical |
| Language | Persian |
| Publication Information | |
| Publisher | Islamic Research Foundation |
- Abstract
Madani divides expediency-based rulings into six categories and believes that these rulings should not lead to reasoning against the text (*Ijtihad fi Muqabil al-Nass*). He considers some expediency-based rulings, such as juristic preference (*Istihsan*) and unrestricted interests (*Masalih Mursalah*), to be invalid due to their speculative nature (*Dhanni*), accepting only those interests that are supported by the text (*Nass*), definitive reason (*'Aql Qat'i*), or established custom (*'Urf Musallam*). He presents four main viewpoints regarding political guardianship (*Wilayah Siyasiyyah*) and endorses Imam Khomeini's viewpoint regarding the expansion of the guardianship of the jurist (*Wilayah al-Faqih*) to the entire scope of the guardianship of the Infallibles (a), even in primary rulings (*Ahkam Awwaliyyah*), secondary rulings (*Ahkam Thanawiyyah*), and expediency-based rulings in the sphere of the permissible (*Mintaqah al-Faragh*).
In the author's belief, discerning expediency (*Tashkhis-e Maslahat*) in governmental and jurisprudential domains must be done by experts, and the Expediency Discernment Council and the Islamic Consultative Assembly (Parliament) are important in this process.
Brief Overview
Expediency-Based Rulings in Islamic Jurisprudence is a Persian book in the field of political jurisprudence, written by Seyed Mahmoud Madani Bajestani, a member of the academic and research department of the Hadith Research Institute at Imam Mohammad Baqir (a) University. This book, which was originally the author's doctoral dissertation, was published for the first time in 2014 (1393 SH) in 258 pages by the Islamic Research Foundation of Astan Quds Razavi.
Structure of the Book
The discussions of the book are compiled into four chapters. The table of contents and the book's introduction are at the beginning, and the bibliography and indexes are at the end. The first chapter of the book is dedicated to generalities and concepts related to the meanings of ruling (*Hukm*) and expediency (*Maslahat*), as well as the pillars of an expediency-based ruling (pp. 15-26). In the second chapter, the fundamental bases and foundations of an expediency-based ruling are examined, including the subordination of rulings to expediencies and corruptions (*Taba'iyyah al-Ahkam li al-Masalih wa al-Mafasid*), rational good and evil (*Husn wa Qubh 'Aqli*), humans and the right to legislate, and reasoning against the text (pp. 30-61).
In the third chapter, which is the most important chapter of the book, the author critiques and examines the types of expediency-based rulings (such as governmental expediency-based rulings, expediency-based rulings based on secondary titles, juristic preference (*Istihsan*), seeking the better interest (*Istislah*), custom (*'Urf*), and the objectives of Sharia (*Maqasid al-Shari'ah*)) and their evidence (pp. 62-232). In the fourth chapter of the book, he also addresses the position of the Expediency Discernment Council in expediency-based rulings (pp. 233-247).
The Challenge of Reasoning Against the Text Regarding Expediency-Based Rulings
The author, who considers an expediency-based ruling a form of legislation (p. 43), has examined the scope of jurists' independent reasoning (*Ijtihad*) to determine the limits of expediency-based rulings (p. 48). One of the cases where, according to the consensus of jurists, independent reasoning is not permissible is reasoning against the text (opposition to religious texts based on the speculative perceptions of the jurist) (pp. 51-56). Dividing expediency-based rulings into four categories, the author believes that the fourth category of expediency-based rulings is one of the forms of reasoning against the text that must be avoided; the fourth form is the case where a person, through his own intellect, sees expediency contrary to a textually stipulated ruling (*Hukm Mansus*) and issues a ruling according to that expediency (pp. 59-60).
In another division, the author classifies expediency-based rulings into six types, examining the ruling of each type separately: 1. Expediency-based ruling based on a governmental ruling, 2. Expediency-based ruling based on secondary titles, 3. Expediency-based ruling based on juristic preference (*Istihsan*), 4. Expediency-based ruling based on unrestricted interests (*Masalih Mursalah*), 5. Expediency-based ruling based on custom (*'Urf*), 6. Expediency-based ruling based on the objectives of Sharia (*Maqasid al-Shari'ah*).
Expediency-Based Ruling Based on a Governmental Ruling
After explaining the governmental ruling (*Hukm Hakumati*) (pp. 63-72) and mentioning instances of it (pp. 73-78), the author states the scope of the authorities of the Prophet (PBUH) and the Imams (a) in a governmental ruling (pp. 79-86), and examines the establishment of these authorities for the Guardian Jurist (*Wali al-Faqih*).
Restriction of Legislative Guardianship to the Imams (a)
Madani, following the view agreed upon by all jurists, considers legislative guardianship (*Wilayah Tashri'iyyah*) exclusive to the Imams (a); because the three characteristics of infallibility (*'Ismah*), divine knowledge (*'Ilm Ladunni*), and connection with the unseen (*Ghayb*) belong exclusively to the infallible Imams, and the non-infallible lack such characteristics (pp. 87-88).
Inclusion of Guardianship in Issuing Fatwas and Judging for Jurists
The author considers the best way for humans to utilize religious sources to be the referral of uninformed individuals (non-jurists) to informed individuals (jurists). Jurists, using their knowledge and expertise, extract divine rulings from the primary sources and convey them to others; as this issue is also explicitly stated in verses and narrations, and this right has been given to the jurists (pp. 88-91).
Since society cannot continue its social life without a judicial system, three theories have been proposed for the execution of judgment (*Qadhawah*) during the era of occultation (*Ghaybah*): 1. Judgment by an arbitrator (*Qadhi Tahkim*), 2. Judgment by the general public based on truth and justice, 3. The delegation of the position of judgment to the jurists. The author considers the third theory to be the well-known theory of jurists, which some also call the consensus view of the Shia (pp. 91-93).
Various Viewpoints Regarding Political and Administrative Guardianship
According to Madani, there are four major theories regarding the political system during the era of occultation (pp. 93-95):
- Restriction of guardianship to Hisbah affairs (matters that the Lawgiver does not consent to be neglected), such as guardianship over orphans and guardianship over property of unknown ownership (*Majhul al-Malik*); some jurists like Sayyid Abu al-Qasim al-Khoei hold this theory.
- Inclusion of guardianship over all political aspects of society, but limited to primary and secondary rulings; Naser Makarem Shirazi has accepted this viewpoint. The author considers the first and second viewpoints to be merely applying the ruling to the subject, excluding them from the subject of discussion (expediency-based ruling based on a governmental ruling) (p. 95).
- Application of guardianship and expediency-based rulings in the sphere of the permissible (*Mintaqah al-Faragh*); this viewpoint is accepted by Sayyid Mohammad Baqir al-Sadr. Martyr Sadr considers some Islamic rulings to be determined by the Lawgiver and unchangeable, and in contrast to this section, he introduces the *Mintaqah al-Faragh* as a domain where its legislation is delegated to the Guardian (*Wali al-Amr*) according to the needs and requirements of the time (p. 97). According to the author, legislation in the *Mintaqah al-Faragh* is not solely based on discerning expediency; rather, legislation must be carried out within the framework of the fixed elements stated in the Book (Quran) and the Sunnah (p. 103). Of course, Yusuf al-Qaradawi, a Sunni scholar, believes that for legislation in the *Mintaqah al-Faragh*, one can also use juristic preference (*Istihsan*), analogy (*Qiyas*), custom (*'Urf*), and the like (p. 100).
- Expansion of the guardianship of the jurist to the entire scope of the guardianship of the Infallibles (a), even in primary and secondary rulings and expediency-based rulings in the *Mintaqah al-Faragh*, even if it leads to the suspension of some religious obligations (*Fara'idh*); in explaining this viewpoint, the author quotes various statements from Imam Khomeini, who advocates this theory (pp. 107-109). According to Madani, the right of guardianship is established for the ruler if the expediency of Islam and Muslims demands it (p. 111). Relying on reason, he considers the formation of a government a necessary matter and deems only the jurist worthy of this position; because the jurist can derive secondary principles from the primary principles and discern general and specific rulings. According to him, by proving the right of guardianship and government for jurists, the extensive authority (*Bast al-Yad*) of jurists in policy-making and determining methods for implementing laws is also proven; because the prerequisite of proving the right for jurists is the establishment of governmental authorities for them (pp. 113-116). In addition to the rational argument, he has also relied on six textual (*Naqli*) arguments; narrations such as the accepted narration (*Maqbullah*) of Umar ibn Hanzala and the Tawqi' of the Imam of the Time (pp. 117-121).
Non-Alignment of Expediency-Based Rulings with Secondary Rulings
In explaining an expediency-based ruling based on secondary titles, the author first defines primary and secondary rulings, then introduces fifteen instances of secondary titles (such as dissimulation (*Taqiyyah*), necessity (*Idhtirar*), coercion (*Ikrah*), hardship and difficulty (*'Usr wa Haraj*), harm (*Darar*), and the more important and the important (*Ahamm wa Muhimm*)) and examines their evidence (pp. 122-136). Following Imam Khomeini, he does not consider governmental rulings to be among the secondary rulings and believes the authorities delegated to the jurist transcend secondary rulings (pp. 137-139).
Invalidity of Expediency-Based Rulings Based on Juristic Preference and Speculative Unrestricted Interests
After examining the definitions and statements of Sunni jurists regarding juristic preference (*Istihsan*) and unrestricted interests (*Masalih Mursalah* or *Istislah*), the author critiques and examines their evidence. He considers the results of the discussion of *Istihsan* and *Istislah* to be subordinate to whether they are customary (*'Urfi*), definitive (*Qat'i*), or speculative (*Dhanni*), concluding thus:
- If *Istihsan* and *Istislah* have a customary appearance and are derived from texts, indicators (*Amarat*), contextual clues (*Qara'in*), and general religious principles (*'Umumat Shar'i*), they are valid (*Hujjah*).
- If unrestricted interests and *Istihsan* are formed based on reason and entail a definitive ruling of reason, they possess validity.
- *Istislah* and *Istihsan* resulting from speculative perception, even if they are not contrary to a religious text, are not valid (pp. 139-173).
Invalidity of a Custom Contrary to the Text
After defining custom (*'Urf*), the author divides it into three categories: 1. Invalidated custom, 2. Accepted custom, and 3. Silent custom (instances of conventional methods among people where religious evidence has not explicitly endorsed or rejected them), considering only the third category as his subject of discussion. He proceeds to examine the jurisprudential applications of custom in three areas: determining the meaning of words, restricting contracts, and its being a source for rulings, and by quoting statements from Shia and Sunni jurists, he has explained them. In Madani's view, custom is an accepted evidence in determining the meaning of words and specifying the instance of religious texts, as well as in restricting contracts. As if it had been acted upon according to custom during the time of the Lawgiver and the Lawgiver did not forbid it, or endorsed (*Taqrir*) it, such a custom can be considered a source for issuing rulings. Likewise, in cases where custom is not in explicit opposition to the text of the Lawgiver (for example, custom, by possessing acceptable titles such as secondary titles, opposes the generality (*'Umum*) or absoluteness (*Itlaq*) of the evidence), its validity is accepted.
However, according to the author, Shia jurists agree on the invalidity of custom in cases where there is a text to the contrary. In contrast to Shia jurists, some Sunni jurists, relying on the following evidence, consider such a custom valid and give it precedence over religious texts:
- Verse 199 of Surah al-A'raf ("Take what is given freely, enjoin what is good" / Khudh al-'Afwa wa'mur bi al-'Urf); To argue from this verse, it is said that the intention behind *'Urf* is customary actions. But the author, stating that this verse is to guide towards moral virtues and has no apparent meaning (*Zuhur*) otherwise, rejects this argument.
- The sentence attributed to the Prophet ("What the Muslims see as good is good in the sight of God"); According to the author, in many sources, it is emphasized that this sentence is not a Hadith.
- Tacit approval Sunnah (*Sunnah Taqririyyah*); According to Madani, the validity of endorsed customs during the time of the Infallible is not a reason for considering newly established customs (*'Urf Mustahdathah*) valid.
- Consensus (*Ijma'*); The author enumerates numerous types for custom and considers only some of them endorsed by jurists, not all of them.
- Hardship and constraint (*Haraj wa Dhiq*); In the author's opinion, this argument is debatable both in terms of its minor premise (*Sughrawi*) and its major premise (*Kubrawi*).
- Expediency in acting according to custom; The author does not consider expediencies and corruptions as the main factor in the emergence of custom and believes that sometimes customs arise based on other factors such as emotions and imitation (pp. 173-204).
Invalidity of Speculative Objectives of Sharia
The author introduces the objectives of Sharia (*Maqasid al-Shari'ah*) as one of the important discussions among Sunnis, explaining their viewpoints from absolute agreement to absolute opposition (pp. 204-211). Proceeding to mention examples of extremes and negligence (*Ifrat wa Tafrit*) in this theory (pp. 211-221), he concludes that the most important point of discussion in objective-based jurisprudence (*Fiqh Maqasidi*) is the quality of attaining the objectives of the Lawgiver (p. 225). For this purpose, he examines the ways to attain the objectives of the Lawgiver. In the author's view, expediencies and Sharia objectives that are attained through an explicit text (*Nass Musarrah*), definitive reason (*'Aql Qat'i*), and customary knowledge (*'Ilm 'Urfi*) are valid, but in the case of being speculative (*Dhanni*), they lack validity (p. 232).
Validity of the Discernment of Experts for Subjects
Madani, who has accepted expediency-based rulings in the two domains of governance and jurisprudence (*Ijtihad*), in the fourth chapter of the book, examines the authority that discerns it in both domains (p. 233). Every ruling has two pillars: 1. Deriving the ruling from religious evidence, 2. Discerning the subjects (*Mawdhu'at*). According to the author, in the domain of governmental rulings, in cases where one of the two pillars is unclear, the Guardian Jurist must refer to an expert (the Islamic Consultative Assembly, the Guardian Council, and the Expediency Discernment Council) to discern both pillars. In the Parliament, the strategies for managing the Islamic society are examined, and in the Guardian Council, their compliance with religious laws and the Constitution is assessed. In the event that the Parliament's strategies do not comply with primary rulings, the Expediency Discernment Council deliberates on the existence of its binding expediency. Ultimately, the Islamic ruler issues the ruling after consulting these three institutions (pp. 233-241). In the domain of Fatwa, the author restricts the derivation of binding expediency or corruption to jurists, believing that sometimes it is necessary to refer to experts to discern the subjects (pp. 241-247).