Sayyid Mostafa Mohaghegh Damad

Author: Mahdi Khosravi Sereshki

Sayyid Mostafa Mohaghegh Damad (born 1324 SH) is a Faqih, jurist, and professor of Hawza and university. After completing the stages of Ijtihad in the Qom Seminary, he continued his academic studies in Philosophy and Islamic Law at the University of Tehran and subsequently received his PhD in Public International Law from the Université catholique de Louvain. He has published numerous works, including books, articles, and interviews in the field of Applied Fiqh and Islamic Law, striving to bridge the gap between Fiqh and legal, medical, environmental, and social issues. Among his prominent works are the books Qawa'id al-Fiqh, Medical Fiqh, Theology of the Environment, and Fiqhi Rereading of Enjoining Good, Forbidding Evil, and Implementation of Hudud.

Dr. Mohaghegh Damad
File:Sayyid Mostafa Mohaghegh Damad.jpg
Name	Sayyid Mostafa Mohaghegh Damad
Age	1324 SH
Position	Mujtahid, Jurist, and Professor of Hawza and University
Nationality	Iran

• Abstract

In these works, while analyzing the traditional views of jurists on public and criminal issues, Mohaghegh Damad has also presented his innovative and personal opinions, which include:

Revision of Ijtihad with emphasis on the role of time and space

Suspension of Hudud in the Age of Occultation based on the absence of Infallible governance

The theory of separation between political caliphate and religious imamate in the Islamic system

Fiqhi study of the subject of dowry (Mahriyyeh) based on the current rate and the possibility of its installment

Revision of the requirement of religious and denominational compatibility in the marriage contract

Rational and humanistic study of severe punishments with a focus on the ruling of stoning (Rajm)

Fiqhi investigation into the possibility of Qisas (retaliation) of a man for a woman in criminal Fiqh

Analysis of the governmental and judicial nature of a woman's Diyyah (blood money) in the Fiqhi system

Evaluation of the customary (Urfi) nature of pyramid schemes, chess, hoarding, Riba (usury), and bribery

Emphasis on the pre-Fiqhi principles of justice and human dignity in the rereading of Fiqh

Rereading the Fiqh of international relations with a focus on war, peace, and human rights

Scientific Biography

Sayyid Mostafa Mohaghegh Damad (born 1324 SH, Qom) is a Faqih, jurist, and professor of Hawza and university. He is the son of Sayyid Mohammad Mohaghegh Damad and the maternal grandson of Sheikh Abdul-Karim Ha'eri Yazdi, the founder of the Qom Seminary. He completed his seminary studies under teachers such as Morteza Motahhari, Sayyid Mohammad Hosseini Beheshti, Hossein-Ali Montazeri, Sayyid Mohammad-Reza Golpayegani, and Mirza Hashem Amoli, attaining the level of Ijtihad in 1348 SH.

Simultaneously with his seminary studies, he studied Philosophy and Islamic Law at the University of Tehran, obtaining a Master's degree in both fields. He then moved to the Université catholique de Louvain in Belgium to continue his studies in Public International Law, receiving his PhD in 1995 with a dissertation on the protection of individuals during war from the perspective of International Law and Islamic Fiqh.

Mohaghegh Damad served for many years as the head of the Law Department at Shahid Beheshti University and the Department of Islamic Studies at the Academy of Sciences of Iran. He has authored numerous works in the field of Fiqh and Islamic Law and has played an effective role in drafting academic legal texts. He has also held scientific and executive responsibilities in the General Inspection Office, the Scientific Council of the Center for the Great Islamic Encyclopedia, and the Dr. Mahmoud Afshar Foundation.

Fiqhi and Legal Works and Publications

Template:Other books In addition to various speeches and articles, Mohaghegh Damad has several books in the field of Fiqh and Islamic Law, including: 1. Medical Fiqh 2. Theology of the Environment 3. Fiqhi Study of Family Law 4. The Methodological School of Akhund Khorasani 5. Argumentative Comparative Criminal Fiqh 6. General Theory of the Negation of Hardship in Islamic Law 7. Illicit Acquisition of Wealth in Islamic Law 8. International Humanitarian Law; An Islamic Approach 9. Fiqhi Rereading of Enjoining Good, Forbidding Evil, and Implementation of Hudud

In these works, Mohaghegh Damad has presented novel views in the fields of Fiqh, Usul, and their application to law.

The Necessity of Rereading Fiqh and Usul and Reconsidering Ijtihad

According to Mohaghegh Damad, Ijtihad, as a rational process of deducing rulings, is inherently fallible; because it is based on human understanding of religious sources, and human understanding, however precise and systematic, is not immune to error. This fallibility in Ijtihad is not a defect, but rather a sign of dynamism and the capability for reform within Fiqh.

Emphasizing the necessity of rethinking Fiqh foundations, Mohaghegh Damad presents a rationalist and transformative perspective on Ijtihad. He considers the Philosophy of Fiqh as a tool for a deeper understanding of the epistemological structures of Fiqh and emphasizes the role of time and space in the transformation of rulings and the necessity of attending to the Maqasid al-Shari'ah (Objectives of Shari'ah). In his view, Ijtihad must transcend traditional frameworks and respond to the modern needs of society by utilizing philosophical and rational methods.

According to Mohaghegh Damad, the finality of prophethood (Khatamiyyah), meaning the end of the line of prophets, is accepted from a religious and rational perspective; however, the endurance of Shari'ah, meaning the continued validity of Islamic laws and rulings until the Day of Judgment, is a different subject requiring independent reasoning and a separate foundation. This endurance cannot be considered merely a direct result of the finality of prophethood, as these two institutions have independent natures. According to him, if the endurance of Shari'ah is understood as the absolute stability of laws, it seems inconsistent with historical changes and social transformation; the solution to this conflict lies in the institution of Ijtihad—an Ijtihad that is a scientific effort to deduce Shari'ah rulings based on religious sources while considering the conditions of time and space.

Suspension of Hudud in the Age of Occultation

Mohaghegh Damad considers the implementation of Hudud to be among the most important Fiqhi issues, which has a direct link to Enjoining Good and Forbidding Evil. Based on narrations and the consensus of jurists, in the era of the presence of the Infallible Imam, it is to be implemented only by the Imam himself or his appointed deputy. In examining the issue of the specific appointment of those authorized by the Imam to implement Shari'ah Hudud, he points to the high sensitivity of these rulings—rulings that include punishments such as striking, wounding, and even killing; for this reason, some Shi'ite jurists consider the implementation of these Hudud permissible only through direct appointment by the Imam. This is with the clarification that the principle of implementing Hudud by the Imam is permissible, but its realization in practice is contingent upon the Imam possessing executive and governmental power.

In examining the status of implemented Hudud in the Age of Occultation, Mohaghegh Damad presents two main states from a Fiqhi perspective:

Implementation of Hudud by the command of an unjust ruler (Wali al-Ja'ir): In this situation, the implementer of Hudud acts according to the order of a ruler who lacks religious legitimacy.

Implementation of Hudud by a Faqih: Mohaghegh Damad presents three main views regarding this:

Cessation (Tawaqquf) in the implementation of Hudud, due to the absence of a specific appointment in the Age of Occultation. Agreement with the implementation of Hudud by a fully qualified Faqih (Faqih Jami' al-Sharayit), citing the principle of the sufficiency of Wilayat al-Faqih. Opposition to the implementation of Hudud by a Faqih, along with mentioning arguments of critique and refutation.

Finally, while examining the arguments of supporters and opponents of the implementation of Hudud by jurists in the Age of Occultation, he ultimately chooses the theory of the suspension of Hudud during the era of Occultation and presents his Fiqhi documentation in defense of this view.

Theory of the Separation of Caliphate and Imamate

Mohaghegh Damad believes in the separation between caliphate and imamate. From his perspective, the caliphate, as a form and structure of government, is an earthly, executive, and non-sacred matter, while the imamate holds a religious, spiritual, and sacred position; therefore, the caliphate pertains to the political and executive management of society and can be administered by a non-infallible individual, but the imamate is a divine and spiritual status restricted to the Infallible Imams. In his view, the separation of these two concepts helps in a more precise understanding of Islamic history and the role of the Infallible Imams in the political developments of that era. Mohaghegh Damad explains this distinction by citing the peace treaty of Imam Hasan (AS) with Mu'awiyah. Based on his analysis, Imam Hasan (AS), by relinquishing the caliphate—meaning the political management of society—to Mu'awiyah, showed that the caliphate is separate from the imamate, and submission to the political conditions of that time did not mean relinquishing the religious and sacred position, but rather relinquishing the government. Therefore, the Infallible Imams can, according to the interests of the Islamic society, entrust the reins of executive affairs to a non-infallible person.

The Jurisprudential (Fiqhi) and Principles (Usuli) School of Akhund Khorasani

Mohaghegh Damad considers Sheikh Ansari's inclination toward rational and philosophical discussions to be one of his outstanding merits and believes that this inclination was transmitted to his students, including Akhund Khorasani, and reflected in the works of Akhund's students such as Muhaqqiq Isfahani, Mirza Na'ini, and Aqa Zia Iraqi. According to him, Akhund Khorasani's Ijtihad was a "Methodological (Industry-oriented) Ijtihad" characterized by the following features:

Establishing a principle or rule before examining primary sources

Adapting the content of evidence with the established principle

Utilizing the rules of Usul al-Fiqh as the axis of deduction

Using philosophical discussions to clarify the point of contention and reach a conclusion

Technical, concise writing that requires commentaries for deeper understanding

Expanding the domain of Shari'ah and generalizing it to individual and social dimensions (maximalist religion).

The Principle of Justice and Human Dignity in the School of Akhund Khorasani

In Mohaghegh Damad's analysis, the two principles of the Rule of Justice and Human Dignity, which are rooted in Quranic teachings and human reason, are introduced as "pre-Fiqhi principles"; principles prior to Fiqhi evidence, and not co-equal or in conflict with them. To explain Akhund Khorasani's view on the principle of dignity, he explains the hypothesis of the "permissibility of a Muslim's endowment (Waqf) for a Kafir" from Akhund's perspective, who considers such an endowment correct by citing Quranic verses related to benevolence and kindness. From Akhund Khorasani's point of view, only the friendly relationship with combatant Kafirs is prohibited, and other groups, from the perspective of Shari'ah, possess dignity.

Limitation of the Authority (Wilayah) of the Prophet, Imam, and Faqih from the Perspective of Akhund Khorasani

Mohaghegh Damad, citing the theories of Akhund Khorasani, limits the Wilayah of the Prophet and the Imams only to general and important matters related to politics, and in minor issues such as deprivation of ownership, marriage, or matters outside the public interests of society, they have no Wilayah; consequently, the Wilayah of the Faqih is also limited in terms of the scope of authority to major Shari'ah and political issues and cannot be extended to the private and individual affairs of the people.

The Fiqhi Nature of Therapeutic and Medical Contracts

Mohaghegh Damad examines the nature of therapeutic contracts considering the characteristics of being binding (lazim), compensatory (mu'awwadi), and consensual (radayi), within the framework of three types of Fiqhi contracts:

Hiring of persons (Ijarah al-Ashkhas): Mohaghegh Damad points to seven flaws in applying therapeutic contracts to the contract of hire; including that the physician (employee) is not subject to the orders of the patient (employer), whereas in a contract of hire, such subordination is a prerequisite.

Reward (Ju'alah): In this type of contract, the patient is committed to paying a fee and the physician is obligated to take medical action. However, one of the problems with this format is that the payment of the fee is contingent upon the realization of the result, whereas in treatment, the realization of the result is not certain.

Independent or unspecified contract: These types of contracts, which had no precedent during the time of the Legislator (Shari'), are acceptable if they do not conflict with Fiqhi principles. Citing the principle of freedom of contract (Article 10 of the Civil Code of Iran), Mohaghegh Damad considers the medical contract to be an independent, special contract with its own mechanism that has Fiqhi and legal legitimacy.

Fiqh of the Environment

Mohaghegh Damad classifies environmental resources into three categories: personal ownership, state ownership, and national ownership. "Anfal," as public property, is at the disposal of the legitimate government and includes forests, seas, mountains, pastures, space, air, and other natural resources. These properties are neither subject to personal ownership nor transferable, but must remain in the service of public interests; because Anfal, according to the explicit text of the Quran, belongs to God and the Messenger (PBUH), and according to Islamic jurists, it is in the possession of the Infallible during his presence, and in the possession of the legitimate government during the era of Occultation.

In explaining the Rule of Mastery (Qa'idat al-Tasallut), he considers the absolute discretion of the owner to be conditioned by other Fiqhi rules such as the "Rule of No-Harm" (La Darar). In his view, any disposition that causes harm to others or damage to public resources is prohibited and results in Shari'ah liability (Daman). Within this framework, rules such as "No-Harm," "Destruction" (Itlaf), and "Causation" (Tasbib) can serve as the basis for civil liability regarding environmental damages.

Family Fiqh

Dowry (Mahriyyeh) at the Current Rate and Its Installment

From Mohaghegh Damad's perspective, "Mahriyyeh at the current rate" is formed based on the theory of the decrease in the value of money; a theory that is not exclusive to Mahriyyeh and includes all Fiqhi and legal debts. Since money lacks intrinsic value and its credit depends on purchasing power, the decrease in value must be considered in the calculation of the debt. In law, damages for delay in payment and the decrease in money value are two distinct categories. Paying Mahriyyeh based on the rate of the day of performance is considered the fulfillment of the debt, although some like Ayatollah Golpayegani consider only the initial amount valid. The law of Mahriyyeh at the current rate was also approved to compensate for the economic decrease in the value of the dowry.

Regarding the issue of installments for Mahriyyeh, Mohaghegh Damad emphasizes the principle of "conditions within the contract"; according to Article 1083 of the Civil Code, the couple can arrange the payment of Mahriyyeh gradually within the framework of an agreement. In this framework, the wife, with her consent, limits her right to immediate demand of Mahriyyeh, and the husband becomes obligated to pay it at the specified times. However, if the husband intends to pay the Mahriyyeh before the appointed time, the wife cannot refuse to receive it.

Requirement of Religious and Denominational Compatibility in Marriage

In his Fiqhi works, Mohaghegh Damad considers marriage in Imami Fiqh not merely a legal contract, but a devotional and ethics-oriented institution that pursues goals beyond fulfilling individual needs. According to him, Quranic concepts such as affection (Mawaddah), mercy (Rahmah), and tranquility (Sakinah) must be included in the legal definition of marriage in the Civil Code of Iran so that this institution may regain its true place. He calls for a revision of the legal definition of marriage based on Quranic teachings. Citing the Rule of No-Hardship (La Haraj) and the principles of Maslahah (interest) and the Rule of Justice, he suggests that the requirement of religious and denominational compatibility in marriage be reread in light of social developments and the changing status of women.

Rational and Humanistic Examination of the Punishment of Stoning (Rajm)

Mohaghegh Damad believes that the punishment of stoning as a definitive Shari'ah ruling has not been proven by the Quran and is mostly based on narrations. Analyzing Fiqhi and Quranic sources precisely, he emphasizes that severe criminal rulings like stoning should not be implemented without rational examination and adaptation to the principles of justice and humanity. Mohaghegh Damad believes that in interpreting rulings, one must attend to the spirit of the Quran and the goals of Shari'ah, rather than merely the appearance of narrations.

Criminal Fiqh

Equality in Qisas between Woman and Man

Among the important controversial issues is the subject of Equality in Qisas between Woman and Man. Shi'ite Fiqh considers the payment of the difference in Diyyah necessary for the realization of Qisas; whereas the Sunnis consider direct Qisas permissible without the need to pay more Diyyah. Mohaghegh Damad believes that the principle of non-equality of Diyyah between man and woman can be inferred from Quranic verses, but this interpretation does not conflict with the possibility of finding a way to equalize the Diyyah. Therefore, it cannot be concluded that a man is absolutely not subject to Qisas for a woman.

Qisas, a Limited Right, Not a Binding Obligation

Regarding the word "Life" (Hayat) in the Verse of Qisas, Mohaghegh Damad believes that "Life" in this verse refers not to physical life, but to social life, and it has a goal beyond the mere permissibility of revenge; goals such as controlling violence, promoting order and justice, and strengthening piety in the community of believers. From his perspective, Qisas is introduced in the Quran as an "executable right," not a "binding duty." Considering the circumstances of the revelation of the verses and the cultural backgrounds of the Age of Ignorance (Jahiliyyah), the Quran, by legislating the ruling of Qisas, sought to restrain tribal blood-feuds and revenge outside the framework of the law. His conclusion is that Qisas is not an obligation to kill, but a conditional right that, in its positive aspect, provides the legal power for retaliation in kind, and in its negative aspect, prevents transgression and excess.

Judicial and Governmental Nature of Woman's Diyyah

In the discussion of Equality of Diyyah between Woman and Man in Islam, Mohaghegh Damad points to the "signatory" (Imda'i) nature of the Diyyah ruling and its transformability in the Islamic legal system. In his view, Surah An-Nisa, Verse 92 merely presents the principle of paying blood money and has not stated a ruling regarding the amount of Diyyah or the difference between man and woman. Examination of narrations also shows that the Prophet of Islam (PBUH) determined the Diyyah for murder based on criteria such as camels, cows, sheep, Dinars, and Dirhams; regulations that are considered signatory (Imda'i) rather than "foundational" (Ta'sisi). This means that if they were prevalent in the custom (Urf) of the Prophet's time, they were confirmed by Shari'ah and are capable of change with the transformation of custom; just as today, payment of Diyyah in Rial is common. Mohaghegh Damad argues that justifying the half-Diyyah of a woman by citing the economic status of the man is devoid of merit and acceptability in current conditions where women have active social, political, and economic roles. Considering the absolute nature of the Diyyah verse, the variety of narrations, the diversity of Diyyah criteria among different peoples, and the signatory nature of the Diyyah ruling, he concludes that the principle of compensation for damages is definitive and permanent; but the amount and method of Diyyah payment depend on social developments and its ruling is judicial and governmental, not a fixed Shari'ah one.

Customary Nature of Pyramid Schemes, Chess, Hoarding, Riba, and Bribery

In analyzing the Fiqhi rule of "Eating wealth in vanity" (Akl al-mal bi-al-batil), Mohaghegh Damad considers it dependent on custom (Urf) and the customary nature of transactions; in such a way that any transaction considered unfair by custom, such as Pyramid Schemes, will be subject to this rule.

The prohibition of hoarding also, from his perspective, is rooted in the ruling of reason; utilizing religious texts as corroboration, he considers this prohibition to extend beyond the limited four or six items and includes any commodity that causes loss to the people and disruption in social order.

Regarding playing with gambling instruments such as chess and backgammon, Mohaghegh Damad states that if, due to social changes, the description of gambling is removed from them, the ruling of their prohibition can be lifted and innocence (Bara'ah) becomes possible.

In the discussion of Riba, the author considers the main goal of its prohibition to be the prevention of oppression, economic abuse, and steering people toward productive and useful activities, rather than merely the unregulated increase of capital. Distinguishing between the "cause" ('Illah) and the "wisdom" (Hikmah) of the prohibition of Riba, he argues that if oppression is the real cause of the prohibition, the practical principle of innocence can justify the legitimacy of some types of Riba, such as Production-oriented Riba. Also, by changing the subject or the object of the ruling, the possibility of legitimizing some ribawi transactions is provided.

Regarding bribery, Mohaghegh Damad introduces the scope of this prohibition to be beyond the domain of judgment and includes government officials as well.

Fiqh of Human Rights

Rereading Islamic Fiqh in the Light of Human Dignity and Rationality

Mohaghegh Damad emphasizes that in the case of a humanistic and rational interpretation of religious texts, the Islamic society can move in the direction of convergence with the global civil society. Accordingly, he suggests that instead of confrontation with modern concepts of human rights, one should choose a synthetic and comparative approach emphasizing existing capacities in Islamic Fiqh.

In the field of minority rights, he utilizes rules such as the Rule of Justice, Rule of Benevolence (Ihsan), Human Dignity, and fulfillment of covenants to show that preserving the Rights of Religious Minorities is not only possible but necessary. He considers respect for minorities as a sign of intellectual and moral maturity in the Islamic society and believes that Imami Fiqh also possesses the capacity to support this view.

Relations of Muslims with Others in War and Peace

From Mohaghegh Damad's perspective, the principle in the relations of Muslims with non-Muslims is peaceful coexistence; the state of war is considered exceptional, and the sanctity of human blood arises from being human. Killing is permissible only in two cases: committing murder or corruption on earth (Ifsad fi-al-Ard). Even in Islamic wars, the permissibility of killing must fall under the heading of defense or confronting corruption and sedition. He clarifies that non-Muslims living in a state of peace or neutrality are not subject to this ruling. Furthermore, narrations that conflict with Quranic verses in this regard, because they are of the "solitary report" (Khabar al-Wahid) type, lack the authority to specify or restrict the verses.

Regarding the demarcation of Dar al-Islam and Dar al-Kufr in the present age, his presented view is based on the definition of nationality based on faith. The world is divided into two parts: Dar al-Islam and Dar al-Harb. Dar al-Islam is a land where Muslims enjoy religious freedom, security of life and property, and social presence. Despite the complexity of geographical borders in today's world, Islam recognizes conventional borders as far as necessary and assigns specific legal effects to them. Until the realization of the global ideal of Islam, these two systems of demarcation (Islamic and conventional) will exist simultaneously.