Research in Contemporary Jurisprudence (Book)

abstract

Research in Contemporary Jurisprudence (in arabic: بحوث فی الفقه المعاصر) is a scholarly and ijtihād-based jurisprudential work in Arabic, presented with a comparative approach. It explores a number of contemporary jurisprudential issues that have rarely been subjected to in-depth scholarly analysis by jurists.

The author, Ḥasan Jawaheri, is a distinguished professor of jurisprudence and legal theory in the seminary of Najaf. He frames some of his discussions in dialogue with jurists from other Islamic schools, reflecting a spirit of rapprochement (taqrīb) in the work. Nonetheless, throughout these discussions, the author makes a concerted effort to demonstrate the superiority of Imāmī (Shīʿī) jurisprudence.

A prominent feature of the book is its emphasis on subject-matter analysis (mawḍūʿ-shināsī). The author views the jurist’s mastery of the subject behind a legal ruling as essential, and this is evident in his detailed efforts to delineate the scope and definition of such subjects. As a result, the discussions in the book are sometimes accompanied by scientific, social, or historical elaborations.

This scholarly approach reflects the author’s belief in the adaptability of Islamic jurisprudence to the transformations of the modern world. Al-Jawāhirī considers this adaptability to be contingent on efforts to reconcile modern subjects with traditional fiqh structures, and on introducing flexibility into these classical frameworks to accommodate emerging issues, all within an open-minded and reform-oriented legal methodology.

The seven volumes of Buḥūth fī al-Fiqh al-Muʿāṣir cover a wide array of jurisprudential topics, including:

Instalment Sales
Jurisprudence of Commercial Papers
Fiqh of Credit Cards
Bayʿ al-Salam and Its Contemporary Applications
Tendering (Manāqasa)
Jurisprudential Boundaries of ʿArafāt, Muzdalifah, and Minā
Sale Before Possession
Novel Financial Contracts
Modern Methods of Ḥalāl Slaughter
Ethical and Legal Issues in Medical Jurisprudence
Bayʿ al-Tawrīd (Supply Contracts)
Human Cloning and Organ Cloning
Guardianship in Marriage
ʿAqd al-Ṣiyānah (Maintenance Contracts)
Endowment (Waqf)
Pregnancy Through Modern Medical Techniques
Penalty Clauses in Contracts
Adhesion Contracts (ʿUqūd al-Idhʿān)
Liability of Physicians
Futures Contracts
Usury (Ribā)
Securities
Intellectual Property Rights

Overview of the Book and the Author

The book Research in Contemporary Jurisprudence is a reasoned and analytical work addressing newly emerging topics in Islamic jurisprudence—topics that, due to their novelty, have not been the subject of thorough examination by classical jurists (Vol. 1, p. 5). The work was published in seven volumes between the years 1419 AH and 1429 AH. The first and second volumes were published by Dār al-Dhakhāʾir in Beirut, while the remaining volumes were published by Majmaʿ al-Dhakhāʾir al-Islāmiyyah in Qom.

The author’s extensive discussion of non-jurisprudential subjects has significantly increased the size of the work and, at times, has overshadowed the core legal discussions.

The author presents some of his topics in the form of dialogues with jurists from other Islamic schools of thought. For this reason, Buḥūth fī al-Fiqh al-Muʿāṣir reflects a comparative approach and embodies a spirit of rapprochement (taqrīb). Nevertheless, the author consistently seeks to demonstrate the superiority of Imāmī (Shīʿī) jurisprudence.

The Author

The author, Ḥasan al-Jawāhirī (born 1368 AH in Najaf), descends from the illustrious Jawāhirī family, known for their scholarly legacy. He pursued his advanced studies in jurisprudence (fiqh) and legal theory (uṣūl) under the guidance of eminent scholars such as: Seyyed Abulqasem Khuei, Seyyed Muḥammad Baqir Ṣadr,Jawad Tabrizi,Ḥussein Waḥid Khurasani He has authored several works in jurisprudence and uṣūl, and has been actively involved in teaching these sciences in the seminaries of Qom and Najaf. Among his notable scholarly engagements is his participation in academic conferences organized by the Islamic Fiqh Academy of the Organization of Islamic Cooperation, where he has presented papers in various cities across the Islamic world. Here is the professionally translated English version of the next section, with formatting preserved and diacritics included where appropriate:

Emphasis on Subject-Matter Analysis

The most salient feature of Research in Contemporary Jurisprudence appears to be its strong emphasis on fiqh-based subject-matter analysis. The author regards a jurist’s mastery over the subject of a ruling as a matter of serious importance. This is evident in his detailed discussions aimed at clarifying the scope and boundaries of jurisprudential topics.

This rigorous focus on defining subjects has, at times, led the book’s discussions to incorporate scientific, social, and historical details, occasionally drawing on modern academic disciplines.

Jawaheri believes that for Islamic jurisprudence to be adaptable to modern transformations, it is necessary to bridge new issues with the frameworks of traditional fiqh, while also introducing flexibility within those frameworks. By an “open-minded approach”, the author refers to a perspective on modern issues that emphasizes tolerance and facilitation, especially in matters that are widespread and inescapable in contemporary life. The aim is to make life under Islamic legal norms both feasible and relevant for the modern individual.

Shortcomings

Among the shortcomings of the work is the lack of thematic organization in presenting the topics, as well as the absence of detailed indexes for the subjects and proper names discussed throughout the book.

Another drawback is the excessive elaboration in certain subject-matter discussions, which, in some instances, stems from insufficient expertise on the part of the author. This occasionally weakens the rigor and coherence of the argumentation.

Additionally, in some topics, although the author attempts to offer practical solutions, he is at times unable to present a decisive resolution, primarily due to his difficulty in moving beyond the traditional legal frameworks.

Foundations and Philosophy of Fiqh

Besides addressing jurisprudential issues, the book also contains several discussions related to the foundations and philosophy of Islamic law. Some of these discussions include:

The role of the Shīʿī Imāms in preserving the Prophetic Sunnah (Vol. 1)

Modernity and secularism in contrast with Islam (Vol. 3)

A reassessment of analogical reasoning (qiyās) (Vol. 3)

The impact of fasting on human health (Vol. 3)

A discussion on the plurality of interpretations of religion and globalization (Vol. 4)

Islamophobia (Vol. 6)

An examination of the term Ahl al-Bayt and the field of jurisprudence of disagreement (fiqh al-ikhtilāf / fiqh muqāran) (Vol. 7)

A study on the status of Muslim women (Vol. 6)

The Shīʿī Imāms and Islamic Legislation

In the first volume, there is an introductory chapter titled “The Role of the Shīʿī Imāms in Preserving the Prophetic Sunnah”, which the author does not classify as a jurisprudential discussion in the technical sense (Vol. 1, p. 8).

In this introduction, after affirming the Qurʾān and Sunnah as the primary sources of Islamic legislation, the author cites fifteen narrations from the Shīʿī Imāms (Vol. 1, pp. 15–21). In his view, these narrations convey an undeniable message: everything the Imāms say is, in one way or another, transmitted from the Messenger of Allah (ṣallá Allāhu ʿalayhi wa-ālih) (Vol. 1, p. 21).

According to al-Jawāhirī, the Imāms (ʿalayhim al-salām) serve as infallible intermediaries between the Prophet (ṣ) and the people in transmitting divine legislation. He argues that this infallibility (ʿiṣmah) bestows upon them a kind of “declarative authority” (wilāyah tablīghiyyah)—an authority through which they convey the rulings of the Sharīʿah by the decree of the Messenger of Allah (ṣ). He attributes certain narrations—those that appear to imply the Imāms were given authority to initiate legislation (tafwīḍ)—to this declarative role, and confines the scope of such narrations to conveyance, not origination, of law (Vol. 1, pp. 35–37).

Fiqh of Acts of Worship

A portion of the discussions in the book Baḥūth fī al-Fiqh al-Muʿāṣir is dedicated to the jurisprudence of acts of worship (fiqh al-ʿibādāt). These include topics such as the boundaries of ʿArafāt, Muzdalifah, Minā, and Adnā al-Ḥill (Vol. 2); the causes that invalidate fasting in the case of illness and the duration of treatment (Vol. 2); the methods for establishing the sighting of the new crescent moon, determining the age of puberty, and its effect on religious obligation (Vol. 6).

The Boundaries of Minā

The author addresses the boundaries of Minā as a contemporary issue. The reason lies in the Saudi government’s prevention of slaughtering within the bounds of Minā due to certain logistical restrictions, thereby relocating the slaughterhouses outside of Minā. This contravenes the consensus view of the Imāmīyah (Twelver Shīʿah), which holds that slaughtering must take place within the boundaries of Minā. According to the author, this situation does not qualify as an instance of taqiyyah (dissimulation), for unlike legitimate cases of taqiyyah, the religious identity of the obligated individual is not concealed in this case. His proposed solution relies on a narration that allows a pilgrim, in the case of overcrowding in Minā, to perform the sacrifice in the Valley of Muḥassir. The author believes that if this narration can be relied upon, it would resolve the newly arising issue for Shīʿah pilgrims (Vol. 2, pp. 28–29).

Puberty in Medicine and Its Proximity to the Definition of Puberty in Imāmī Jurisprudence

According to Jawāhirī, puberty in medical science refers to the gradual physical changes in the human body as its organs and sexual functions mature, caused by hormonal shifts in both males and females. He adds that, in the case of girls, this change is typically accompanied by the onset of menstruation before the age of fifteen—usually between the ages of eight and thirteen (Vol. 6, p. 104). In Jawāhirī’s view, this medical definition of puberty is closer to the Islamic legal definition than to that found in the civil laws of some Muslim countries (Vol. 6, p. 107), where puberty is equated with physical maturity, leading to legislation that may in some instances violate a person’s human rights and result in injustice (Vol. 6, pp. 101–103). Furthermore, he considers the medical definition of puberty to be more compatible with Imāmī jurisprudence than with Sunnī jurisprudence (Vol. 6, p. 107). This is because in Imāmī law, puberty for girls is determined not only by physical signs but also by a fixed age (commonly held to be nine years). In contrast, among Sunnī jurists, some do not consider age a condition for puberty, while others set the age at more than thirteen years (Vol. 6, pp. 91–92).

Fiqh of Medical Treatment and Advances in Medicine

Jawaheri addresses various issues related to the jurisprudence of medical treatment and modern medical advancements in Research in Contemporary Jurisprudence. These include topics such as medical ethics (Vol. 2), the legal rulings on treatment (Vol. 2), the AIDS epidemic and its legal rulings (Vol. 2), genetic engineering (Vol. 3), physician liability (Vol. 4), and the cloning of human organs (Vol. 7). He also discusses human cloning and the creation of a human double in both Volume 2 and Volume 3.

AIDS and Its Related Jurisprudential Rulings

In a section of Volume 2, the author investigates AIDS—a disease regarded as emblematic of modern humanity—from a legal perspective. He begins by posing eleven jurisprudential questions about the disease, such as: the ruling on quarantining someone with AIDS, the deliberate transmission of AIDS to others, marriage and sexual relations between AIDS patients, the right of either spouse to request divorce, and the permissibility of abortion for a woman with AIDS (Vol. 2, pp. 465–466).

Jawāhirī holds that applying the legal classification of maradh al-mawt (death-illness) to AIDS depends on the stage of the disease. From the time of infection until the appearance of specific symptoms—which may take years—the patient cannot be considered to be in a state of maradh al-mawt. However, in the advanced stages of the disease, when accompanied by mental decline and the inability to perform daily tasks, the patient may indeed be considered to be in a terminal state (maradh al-mawt) (Vol. 2, pp. 418–419).

Human Cloning

Regarding human cloning, Jawāhirī holds that cloning itself, if successful, is not intrinsically prohibited. However, if the procedure involves another forbidden element, then the act will no longer remain permissible. He further argues that secondary prohibition (ḥurmah thānawiyyah) may apply if cloning disrupts divine wisdom by eliminating the natural diversity in individual and social human creation or if it causes disruption in the human social system by interfering with matters on which individual identity depends. Nonetheless, the author maintains that as long as the aforementioned dangers do not result from the widespread application of cloning and no other secondary prohibitions are present, it would be unjustified to pronounce a general prohibition on human cloning, for no decisive proof exists for such a ruling (Vol. 3, pp. 128–129).

Fiqh of Family and Women

Jawāhirī’s discussions in Research in Contemporary Jurisprudence on the jurisprudence of family and women appear under various topics, some of which may also be categorized under medical jurisprudence. These include issues related to twinning, human cloning (Vols. 2 & 3), and the cloning of embryonic stem cells (Vol. 7). In addition to these, other topics include guardianship (wilāyah) in marriage (Vol. 3), the status and social role of Muslim women (Vol. 6), and assisted reproduction (Vol. 4).

The Status and Social Role of Muslim Women

In this section, Jawāhirī explores various issues regarding women’s rights in Islam, including: Islam’s view on the inherent nature of women, the role of women within the family according to Islam, women’s employment, and the ethical, jurisprudential, and legal status of women as daughters, wives, and mothers. He also addresses topics such as the prohibition on a woman leaving the house without her husband's permission, injustices and violations of women’s rights, polygyny, female leadership, women serving as judges, women’s blood money (diyah), and the right to divorce.

For instance, on the topic of a woman leaving the house without her husband’s permission, Jawāhirī’s view aligns with that of other jurists. However, he attempts to limit the husband’s authority in this regard by incorporating ethical (not legal or jurisprudential) boundaries based on certain narrations (Vol. 6, pp. 291–296).

Artificial Insemination

From the perspective of Jawāhirī, there is no reason to prohibit artificial insemination in most of its cases (such as embryo donation to be implanted in the womb of a foreign woman, sperm donation to be implanted in the womb of a foreign woman, and egg donation to be implanted in a non-relative’s womb), because, according to him, the prohibition in this regard is specifically related to the placement of a man’s sperm into the womb of a foreign woman during sexual intercourse. He argues that reasons such as the pregnancy of a woman by someone other than her husband, or outside the framework of marriage, which some cite to prohibit artificial insemination, are merely legal fears that do not imply a genuine legal prohibition (Vol. 4, pp. 181-182).

Islamic Economics Jurisprudence

Jawaheri’s discussions on Islamic economics jurisprudence in the book Research in Contemporary Jurisprudence (Studies in Contemporary Fiqh) represent the most extensive and diverse section of this work. These discussions cover topics such as financial contracts, banking, and usury (ribā). Some of the topics include: installment sales, the jurisprudence of commercial papers, credit cards, Salam sales and their modern applications, insolvency leading to delay, auctions (Vol. 1), sales prior to possession, new financial contracts (Vol. 2), Murābaha contracts, ‘Aqd al-Siyāna (safeguard contracts) (Vol. 3), penalty clauses in contracts, acknowledgment contracts, forward contracts (Vol. 4), and securities (Vol. 7). The central theme of the fifth volume is ribā from different perspectives, such as loan-based usury, transaction-based usury, and the relationship between savings and ribā, all of which are addressed in this volume of the book.

Installment Sales

Jawaheri believes that although this type of sale has been discussed by earlier jurists, its expansion in modern transactions, due to its benefits for both seller and buyer, requires renewed attention. This attention should begin with research on two main axes: first, what is the legal basis for the permissibility of installment sales, and second, how can the added price for selling goods in installments be explained (Vol. 1, p. 42). Regarding the second point, the author suggests that the added price could be explained by reasons other than the installment nature, and even if it corresponds to it, there can be a flexible interpretation. In a deferred sale, the entire price is given for the goods, and the time period merely acts as a factor for price increase (Vol. 1, pp. 48-49).

Credit Cards

According to the author, credit cards are documents that allow individuals or legal entities, based on a contract with the issuer, to purchase goods or services and later repay the amount to the issuer (Vol. 1, p. 244). In Jawāhirī’s legal analysis, two contracts are formed when credit cards are issued: First, a contract between the card issuer and the customer to borrow money, with the issuer acting as an intermediary, providing finance and ensuring the customer repays within a certain period. This contract is valid according to Jawahiri, as it falls within the general scope of the Quranic verse on fulfilling contracts, which is not restricted to the contracts prevalent at the time of revelation, but also includes subsequent rational contracts made in later human societies. Second, a contract between the card issuer and the institutions that assume the responsibility of payment to the customer. According to the Shia Islamic jurisprudence definition of Dhaman (guarantee), which is the transfer of one’s debt responsibility to another, this second contract cuts the relationship between the seller and the customer, positioning the customer in a direct relationship with the issuer. However, according to Sunni jurisprudence, where Dhaman is seen as the attachment of one responsibility to another, the seller can still claim payment from the customer. This appears to indicate that, in the author’s view, Shia jurisprudence aligns more closely with the practical functioning of credit cards (Vol. 1, pp. 244-246).

Acknowledgment Contracts

The emergence of acknowledgment contracts is described by the author as a consequence of economic advancement, where certain goods are monopolized by governments or large corporations. This monopoly over vital, scarce, and strategic goods puts the contracting customer in a vulnerable position, forcing them to accept the seller’s conditions. The author views these contracts as a result of economic development in the modern world, and their importance in civilizational progress has legitimized their entry into the realm of legislation. According to Jawahiri, some Islamic jurists regard acknowledgment contracts as a significant shift in the traditional theory of contracts (Vol. 4, p. 239). Jawahiri raises several questions regarding acknowledgment contracts, such as whether coercion in these transactions invalidates them, whether the urgency involved compromises their validity, and whether such contracts amount to hoarding and exploitation, requiring state intervention to ban them (Vol. 4, pp. 239-240). He points out that traditional contract theory asserts that contracts should be based on mutual consent between the parties without any coercion or pressure, even in economic matters (Vol. 4, p. 239). This is why most Islamic schools of thought consider sales made under coercion to be invalid (Vol. 4, pp. 251-252). From Jawahiri’s perspective, there is no coercion in acknowledgment contracts, as no one is forced to act, and no harm is caused to the party in the weaker position of the transaction. He suggests that not engaging in the acknowledgment contract actually results in harm to the person who does not accept it (Vol. 4, p. 255).

Islamic Alternatives to Consumer Loans

In this volume, Jawahiri offers solutions for replacing usurious practices in Islamic banking. Concerning long-term and medium-term loans, he proposes that Islamic banks transform them into Mudarabah contracts, where the bank acts as an intermediary or participates in the investment. However, for short-term loans, which are consumer loans and cannot be structured as Mudarabah, he suggests two solutions:

The bank could offer consumer loans under specific conditions, such as ensuring the borrower has a good credit record, with a loan term no longer than three months. Additionally, the bank should require collateral, like a mortgage on the debt, to ensure repayment (Vol. 5, pp. 506-507).
Banks could refrain from offering consumer loans altogether and only provide loans for productive purposes that promote economic development. Jawahiri suggests that the provision of small consumer loans should be the responsibility of state institutions that manage Zakat collections. These institutions could offer funds without interest and with guarantees for repayment within a specified time (Vol. 5, p. 507).

Endowment (Waqf)

The author discusses various topics related to Waqf (endowment) in his book, including the exploitation of waqf properties and their rulings (Vol. 4), legal disputes regarding waqf (Vol. 6), waqf of securities, waqf of cash for loans or Mudarabah, waqf of shares, waqf of intellectual property rights, and the rulings on waqf in various Islamic schools of thought (Vol. 7).

Intellectual Property Waqf

Regarding the endowment of intellectual property rights, Jawahiri distinguishes between two types of intellectual rights: first, intellectual rights that can be transferred through transactions and are thus considered financial rights, such as rights to benefit from scientific and artistic works or inventions. Second, intellectual rights that cannot be transferred through transactions, and therefore are not considered financial rights, such as the moral right of authorship or invention, which is registered in the name of the author or inventor and transferring it to another person would be deceitful. According to Jawahiri, waqf of intellectual property rights is possible for the first type, as these rights are analogous to immovable property that can be sold or transferred (Vol. 7, pp. 153-154).

refrences

Jawahiri, Hasan, Bahuth fi al-Fiqh al-Mu‘asir (Vols. 1 & 2), Beirut, Dar al-Zakha’ir, n.d.
Jawahiri, Hasan, Bahuth fi al-Fiqh al-Mu‘asir (Vols. 3-6), Qom, Majma’ al-Zakha’ir al-Islamiyya, 1422-1429 AH.
“Al-Shaykh Hasan al-Jawahiri,” in Sahifat Sadi al-Mahdi, Published: 2 Rajab 1430 AH, accessed: 23 Mehr 1403 SH.