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The unlegislated zone

From Encyclopedia of Contemporary Jurisprudence

Mintaqat al-Faragh (the unlegislated zone) is a theory by Sayyid Muhammad Baqir al-Sadr according to which the Lawgiver permits the ruler of an Islamic society to enact binding laws within the sphere devoid of obligatory religious rulings (the domain of permissible acts), in order to secure the interests of the state. This theory seeks to harmonize Islamic Sharia with structural changes in human social life. According to jurisprudential researchers, this theory is the result of a systemic and governmental perspective on jurisprudence. The importance of this theory is attributed to its attention to the objectives of the Sharia (*maqasid al-shari'ah*) and the universality of Islamic rulings, as well as its function as a basis and support for the legislative system in the contemporary era.

To prove the theory of Mintaqat al-Faragh, Shahid al-Sadr has cited the Verse of Ulu al-Amr regarding the necessity of obeying the guardian-ruler, and several narrations about the governmental rulings of the Prophet of Islam (s) and Imam Ali (a). According to this theory, the Lawgiver has delegated legislation in these "vacuum" areas to the guardian of the people or the ruler of the Islamic society and the legislative power, on the condition that it does not conflict with other Islamic rulings.

Although the presentation of the Mintaqat al-Faragh theory is considered an innovation of Muhammad Baqir al-Sadr, its roots can be found in other works such as Tanbih al-Ummah by Mirza Na'ini, and also under the title *Mintaqat al-'Afw* (the zone of pardon) in the works of some Sunni thinkers.

The Mintaqat al-Faragh theory has been criticized by some jurists. Contradiction with the comprehensiveness of the Sharia, the exclusivity of legislation to the Lawgiver, the impossibility of legislation by a non-Lawgiver, and the incompatibility of this theory with the philosophy behind the existence of the domain of permissible acts are among the criticisms leveled against this theory.

Explanation and Introduction of the Theory

Mintaqat al-Faragh is a theory by Sayyid Muhammad Baqir al-Sadr in Shia jurisprudence that grants the ruler of an Islamic society the authority to enact binding laws in cases where there is no obligatory religious ruling, with the aim of securing the interests of the state.[1] This theory is aimed at explaining a mechanism for harmonizing Sharia with temporal and spatial changes. According to Muhammad Baqir al-Sadr, the primary rule and practical principle regarding actions is permissibility (*ibahah*), which also includes the subjects of Mintaqat al-Faragh. He believes that for any activity or action for which there is no legislative text indicating its prohibition or obligation, the guardian-ruler (*wali al-amr*) can prohibit it or command it.[2] Although in Shahid al-Sadr's view, God's intrinsic authority includes potential duties as well, he nevertheless practically accepts the ruling of exoneration (*bara'ah*) based on religious evidence such as "Allah does not charge a soul except [with that] which He has given it."[3]

From Shahid al-Sadr's perspective, the Prophet of God had two positions: the position of delivering the message and propagating God's rulings, and the position of guardianship and leadership over the people. Based on this, the Prophet's commands and prohibitions in his capacity as a messenger are unchangeable legislative texts, while his commands and prohibitions in his capacity as a ruler are considered changeable rulings. Therefore, the Prophet, from his first position, i.e., messenger, explained and propagated the fixed divine rulings, and from his position as the ruler of the Islamic society, he issued rulings in the Mintaqat al-Faragh by considering the interests and benefits of the society.[4]

Background

The theorist of Mintaqat al-Faragh, Sayyid Muhammad Baqir al-Sadr,Template:Note was a Shia mujtahid and thinker residing in Iraq.[5] Nevertheless, the groundwork for this theory also existed in the views of other scholars, such as in *Tanbih al-Ummah* by Mirza Na'ini.[6] According to Sayyid Ali-Akbar al-Ha'iri, although this title is an innovation of Shahid al-Sadr, its content has been discussed among both Sunnis and Shias in the past.[7]

Among Sunnis, the theory of *Mintaqat al-'Afw* (the zone of pardon), which Sunni scholars sometimes also refer to as Mintaqat al-Faragh,[8] refers to a domain in which no text has been issued by the Lawgiver. This theory is very close to the discussions raised by Na'ini and Sadr in contemporary Shia jurisprudence; for example, Nur al-Din ibn Mukhtar al-Khadimi (born 1963) in his book *Al-Ijtihad al-Maqasidi*.[9] Abd al-Karim Hamdawi has also discussed Mintaqat al-Faragh and made it the focus of a significant part of his book.[10]

Difference from Secondary Rulings

The difference between rulings issued in the Mintaqat al-Faragh and secondary rulings is that secondary rulings have a stipulated reference in the Sharia, such as the Rule of No-Harm, necessity (*idtirar*), and hardship (*'usr wa haraj*). However, a governmental ruling in the Mintaqat al-Faragh does not trace back to a stipulated case in the Sharia, and what plays a role in its determination is a concept that Sadr calls "the authority of ijtihadi legislation"; meaning the ruler's authority to enact binding laws in the domain of permissible acts. According to the Mintaqat al-Faragh theory, the legislator enacts laws for the essence of subjects with their primary titles, rather than applying secondary rules to subjects in this zone.[11]

Legislation in Mintaqat al-Faragh

According to Muhammad Baqir al-Sadr in the treatise A Preliminary Jurisprudential Glimpse, for matters that are not subject to a decisive ruling of obligation or prohibition, the legislative power, as the representative of the nation, approves a law that is in the interest of the people and does not conflict with the fundamentals of Islamic law. In his view, the scope of this legislation includes cases that the Sharia has left to the discretion of the people themselves and has given the legally responsible person freedom of action to the extent that it does not conflict with other Islamic rulings.[12] Shahid al-Sadr also believes in his book *Iqtisaduna* that the Islamic economic system has two main parts; one part, which constitutes the objectives of Islam, is its fixed and unchangeable part, and the other part is the flexible part of this system, in which Islam has delegated legislation to the guardian-ruler.[13] Sadr claims that God, in the Book, by virtue of "Obey Allah and obey the Messenger and those in authority among you," has given a special authority to the guardian-ruler and has made his commands binding. In his view, the zone in which the guardian-ruler can exercise authority has various domains, one of which is the arena of legislation.

Mirza Mohammad-Hossein Na'ini also, in his treatise Tanbih al-Ummah wa Tanzih al-Millah, in the discussion of the method of legislation, has referred to stipulated and non-stipulated rulings. According to him, in the domain of stipulated matters, the duty of the legally responsible is specified in the Sharia and one must adhere to it; but in the domain of non-stipulated matters, due to not being included under any specific rule of the Sharia, this domain is delegated to the guardian of the people, and the laws related to this domain are subject to change by the legislative body according to the exigencies of interests and harms.[14]

Importance

The importance of the Mintaqat al-Faragh theory is attributed to its attention to the universality of Islamic rulings and structural changes in human social life, a governmental view of jurisprudence, adherence to the objectives of the Sharia, and alignment with the systematization of jurisprudence. According to jurisprudential researchers, the most important reason for the significance of this theory is its function as a basis and support for the legislative system in the contemporary era.[15]

Universality of Islamic Rulings

According to researchers like Sayyid Salam Zayn al-'Abidin, the change in structures and the speed of developments in human social life have made the need for theorization in the domain of jurisprudential variables more necessary than ever; for this reason, Shahid al-Sadr proposed the Mintaqat al-Faragh theory with this approach. According to him, Shahid al-Sadr's emphasis on extracting theory from texts and filling the vacuum areas is to such an extent that some have called his jurisprudence "the jurisprudence of theory" (*fiqh al-nazariyyah*).[16] Sayyid Kadhim al-Haeri, one of Sadr's students, has also considered economic developments in different times and places and the universality of Islamic rulings as Shahid al-Sadr's reason for defending the Mintaqat al-Faragh theory. Haeri has written that over time, due to technological progress, the relationship between man and nature changes, and Islam must provide solutions commensurate with them.[17]

Governmental View of Fiqh

A governmental view of jurisprudence and moving beyond individual jurisprudence is another dimension of the importance of the Mintaqat al-Faragh theory in contemporary jurisprudence. The Mintaqat al-Faragh theory, with a governmental view of jurisprudence, seeks to secure the general interests of the system. Traditional jurisprudence mostly considers the subject of jurisprudence to be the act of the individual legally responsible person; but contemporary jurisprudence and the Mintaqat al-Faragh theory go beyond the perspective of individual jurisprudence and enter the discussion of social jurisprudence and the foundations of managing society and its politics.

Alignment with the Systematization of Fiqh

The relationship between the Mintaqat al-Faragh theory and the system-building power of jurisprudence is another aspect of this theory's importance. From Shahid al-Sadr's perspective, the school of Islam, in addition to stating individual rulings, claims to build structures and systems in line with the general objectives of religion. Objectives that take the country's legislative status out of the model of pure individualism and move it towards systematization. Sadr says in his book *Iqtisaduna* that the view of Islam should be a systemic one, and one should avoid a piecemeal approach in examining its rulings. For example, to understand the Islamic rulings in the field of economics in any era, the entire Islamic economic system must first be examined and the main objectives governing this system extracted; then, according to these objectives, detailed rulings should be implemented considering the requirements of each era.[18]

Adherence to the Objectives of the Sharia

The Mintaqat al-Faragh theory, while preserving the religious texts, considers the supervision of the objectives and goals of the Sharia over these texts to be necessary. Mohammad Mahdi Shamseddine, a religious scholar and political theorist, in stating the importance of the Mintaqat al-Faragh theory, while listing evidences with the name "higher evidences of legislation," such as the verses of subjugation, the command to justice and benevolence, the prohibition of indecency and extravagance, and the prohibition of arrogance and corruption, emphasizes the foundational nature of this evidence in legislation in the vacuum areas.[19]

Sayyid Ali al-Sistani, a contemporary Marja', has also spoken of the concept of higher objectives, both in the Mintaqat al-Faragh and in the theory of spiritual harmony, and believes: The conformity of evidence with the Book and the Sunnah does not mean conformity with its generalities and universal statements; rather, conformity is in terms of the objectives and spirit of the Sharia, meaning the high objectives of the Sharia, such as justice, equality, benevolence, negation of hardship, which are mentioned in the Quran, act as an indicator and a planner.[20]

In Shahid al-Sadr's view, the objectives of the religion govern the vacuum domain, and the ruling issued in this domain must be compatible with the objectives of the Sharia and the goals governing all legislations.[21] He refers to these objectives as general indicators (*mu'ashshirat 'ammah*).[22]

Reasons for the Theory

To prove his theory, Sayyid Muhammad Baqir al-Sadr has cited verse 59 of Surah al-Nisa regarding obedience to the guardian-ruler, and several narrations about the governmental rulings of the Prophet of Islam (s) and Imam Ali (a).

The Verse of Ulu al-Amr

To prove the authority of the guardian-ruler to enact binding rulings in areas devoid of religious law, Muhammad Baqir al-Sadr has cited the Verse of Ulu al-Amr (verse 59 of Surah al-Nisa) regarding obedience to the command of those in authority in line with obedience to the command of God and the Prophet. In his view, this verse clearly indicates the obligation to obey the guardians of authority. Shahid al-Sadr believes that Muslims have no disagreement that the guardians of authority in an Islamic society possess legitimate authority and power, and the disagreement is only about their conditions and attributes. Sadr does not comment on the specific referent of the guardian-ruler during the era of occultation and only fundamentally believes that the guardian and ruler of the society has the authority to enact laws in areas devoid of religious ruling in accordance with his governmental capacity.[23] In Sadr's interpretation of the said verse, the Sharia has granted such a right to the guardian-ruler that, based on it, in cases where there is no obligation from the Sharia, he can issue rulings in the Mintaqat al-Faragh according to the exigencies of time and place and in accordance with the fundamental objectives of the Islamic Sharia.[24]

Governmental Rulings of the Prophet (s) and Imam Ali (a)

In addition to verse 59 of Surah al-Nisa, Sadr cites several narrations that lead to a better understanding of the Mintaqat al-Faragh and explain its importance. In this regard, he refers to the Prophet's (s) prohibition of withholding surplus water and pasture,[25] the prohibition of buying fruits that have not yet ripened,[26] the prohibition of leasing land under specific conditions,[27] and the orders of Imam Ali (a) regarding price fixing and recommendations concerning merchants.[28] He believes that none of these orders were among the original obligations and prohibitions in the Sharia, but rather stemmed from the authority of the Islamic ruler in this domain.[29]

Jurists' Criticisms of the Mintaqat al-Faragh Theory

The Mintaqat al-Faragh theory has been criticized by some jurists. Contradiction with the comprehensiveness of the Sharia, the exclusivity of legislation to the Lawgiver, and conflict with the evidence for legislative permissibility are among the criticisms leveled against this theory.

Contradiction with the Comprehensiveness of the Sharia

Among the criticisms raised against the Mintaqat al-Faragh theory is its contradiction with the comprehensiveness of the religion of Islam. Naser Makarem Shirazi, a contemporary Marja' al-Taqlid, says in the book Buhuth Fiqhiyyah Hammah: Imami Shia scholars believe that no matter is devoid of a religious ruling, and the divine ruling for every matter has been stated in the Sharia, whether this has reached us through a text (*nass*) or through general rules and principles; therefore, there is no room left for legislation by a jurist or a non-jurist, and there is no vacuum or deficiency in the Sharia.[30] While discussing the legislative powers of the Islamic ruler, he believes that the Wali al-Faqih has the right to legislate in specific cases that are of an executive nature and are akin to applying general principles to specific instances. For example, preserving the lives of Muslims is a general law in the Sharia, and traffic laws are accepted in line with this general law.[31]

Sayyid Muhammad Baqir al-Sadr himself addressed this criticism and responded: The existence of a zone lacking a ruling is not considered a deficiency or negligence in legislation; because the Sharia has not left this zone to its own devices; rather, it has allowed the Islamic ruler to enact rulings for it according to the circumstances. In this respect, the Mintaqat al-Faragh theory leads to the dynamism of ijtihad and empowers the Sharia to respond to contemporary needs.[32]

Impossibility of Legislation by a Non-Lawgiver

The exclusivity of the authority to legislate to God and the belief in the impossibility of legislation by a non-Lawgiver is another criticism leveled against the Mintaqat al-Faragh theory.[33] Hossein-Ali Montazeri, a contemporary Marja' al-Taqlid, in explaining this exclusivity, has said: Legislation belongs only to God, and besides Him, there is no legislator or lawgiver; therefore, no individual, except the prophets and imams, has the right to legislate. In other words, a ruling has three stages: first, legislation by God; second, deduction and extraction by jurists; third, planning and execution. Therefore, there is no other basis for justifying legislation by someone other than God.[34]

In response to this criticism, Sayyid Ali-Akbar al-Ha'iri believes that the command to obey the guardian-ruler in the Mintaqat al-Faragh domain is valid as long as he legislates within the framework determined by the Sharia. He provides three types of regulations for filling the Mintaqat al-Faragh: 1. Regulations for determining the guardian-ruler, 2. Regulations for delineating the Mintaqat al-Faragh domain, 3. Regulations for law-making and legislation. With these three regulations, the jurist's legislation is placed in tandem with God's legislation, and there will be no conflict.[35]

Conflict with the Evidence of Legislative Permissibility

According to some researchers, accepting the enactment of law in the Mintaqat al-Faragh for the ruler of an Islamic society may conflict with some verses and narrations (such as verse 87 of Surah al-Ma'idah) that have established the domain of permissible acts.[36] Because when the Lawgiver has left His servants free in a ruling and saw no interest in its obligation or prohibition, or did not consider their object to have an interest at the level of obligation or prohibition, for what reason can the ruler or anyone else declare the same thing obligatory or forbidden for the people? Therefore, accepting the ruler's authority to enact a ruling in the Mintaqat al-Faragh will lead to opposition to the divine ruling.[37]

Study Resources

Template:Main The issue of Mintaqat al-Faragh, besides being discussed in the works of Sayyid Muhammad Baqir al-Sadr and Mirza Na'ini, is also addressed in parts of books related to issues of governance and the legislative system in Islam. Books and articles have also been written independently on this theory in contemporary Shia jurisprudence. Among these books are *Mintaqat al-Faragh dar Qanunguzari-ye Islami* (Mintaqat al-Faragh in Islamic Legislation) by Abd al-Majid Qa'edi Lamerdi in Persian, and the book *Mintaqat al-Faragh al-Tashri'i: Dirasah Muqaranah li-Ahamm al-'Anasir al-Marinah fi al-Shari'ah al-Islamiyyah* by Falah Abd al-Hasan al-Dukhi in Arabic. Articles such as "The Theory of Mintaqat al-Faragh and Human Authority" by Haydar Hubballah, "The Nature and Evidences of Mintaqat al-Faragh in Islamic Legislation" by Ali Rahmani-Fard and Abd al-Majid Qa'edi Lamerdi, and "Mintaqat al-Faragh as a Theory of Legislation" by Hasan Amini-Pazhuh and Mohsen Esmaeili, have also examined this issue from the perspective of Shia jurisprudence.

footnotes

  1. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 41.
  2. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 43.
  3. ↑ Sadr, *Durus fi 'Ilm al-Usul*, vol. 2, p. 37.
  4. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 414.
  5. ↑ Husseini Ha'eri, *The Life and Thoughts of Shahid Sadr*, p. 35.
  6. ↑ Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory," p. 91.
  7. ↑ Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami," p. 111.
  8. ↑ Al-Qaradawi, *'Awamil al-Si'ah wa al-Murunah*, p. 11.
  9. ↑ Al-Khadimi, *Al-Ijtihad al-Maqasidi: Hujjatuhu, Dawabituhu, Majalatuhu*, p. 173.
  10. ↑ Al-Hamdawi, Abd al-Karim Muhammad Muti', *Thulathiyyat Fiqh al-Ahkam al-Sultaniyyah; Ru'yah Naqdiyyah lil-Ta'sil wa al-Tatwir*, pp. 473–487.
  11. ↑ Hekmatnia, "An Explanation of the Mintaqat al-Faragh Theory," pp. 114-115.
  12. ↑ Sadr, *Lamhah Fiqhiyyah Tamhidiyyah 'an Mashru' Dustur al-Jumhuriyyah al-Islamiyyah fi Iran*, pp. 15, 13.
  13. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, pp. 41, 42.
  14. ↑ Na'ini, *Tanbih al-Ummah wa Tanzih al-Millah*, pp. 134-137.
  15. ↑ Al-Dukhi, *Mintaqat al-Faragh al-Tashri'i*, 2015, p. 29; Ayati, "Legislation of Governmental Rulings in the Mintaqat al-Faragh Domain by the Wali al-Faqih," p. 104.
  16. ↑ Zayn al-'Abidin, "Imam Shahid Sadr, from the Jurisprudence of the Text to the Jurisprudence of Theory," pp. 67–116.
  17. ↑ Husseini Ha'eri, "Islamic Economics and the Method of Its Discovery from the Perspective of Shahid Sadr," p. 29.
  18. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 380.
  19. ↑ Shams al-Din, *Majal al-Ijtihad wa Manatiq al-Faragh al-Tashri'i*, p. 42.
  20. ↑ Rabbani, *Mabahith al-Hujaj*, (A Report of the Lectures on Usul by Sayyid Ali al-Sistani), p. 36.
  21. ↑ Sa'di and Tamaddon, "A New Investigation into the Role of Sharia Objectives in the Mintaqat al-Faragh (Relying on the Views of Shahid Sadr, Ayatollah Shams al-Din, and Ayatollah Sistani)," p. 223.
  22. ↑ Sadr, *Al-Islam Yaqud al-Hayat*, p. 61.
  23. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 43.
  24. ↑ Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami," pp. 113–114.
  25. ↑ Kulayni, *Al-Kafi*, vol. 10, p. 483.
  26. ↑ Kulayni, *Al-Kafi*, vol. 10, p. 89.
  27. ↑ Tirmidhi, *Sunan al-Tirmidhi*, 1403 AH, vol. 2, p. 421.
  28. ↑ Majlisi, *Bihar al-Anwar*, vol. 33, p. 607.
  29. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 420.
  30. ↑ Makarem Shirazi, *Buhuth Fiqhiyyah Hammah*, p. 515.
  31. ↑ Esmaeili, "A Reflection on the Mintaqat al-Faragh Theory from the Perspective of Shahid Sadr and its Criticisms and Shortcomings," p. 52.
  32. ↑ Sadr, *Eqtesad-e Ma*, vol. 2, p. 417.
  33. ↑ Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory," p. 91.
  34. ↑ Montazeri, *Mabani-ye Fiqhi-ye Hukumat-e Islami*, p. 120.
  35. ↑ Al-Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami," pp. 117–124.
  36. ↑ Hekmatnia, "An Explanation of the Mintaqat al-Faragh Theory," p. 111.
  37. ↑ Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory," p. 94.

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