Yousef Saanei

Author: Mahdi Shajarian

Yousef Saanei (in Persian: یوسف صانعی), was a Shia Faqih who held fatwas differing from the consensus of jurists, particularly in areas such as Fiqh of Women and the Rights of Non-Muslim Minorities in Islamic society. These views faced numerous reactions from traditionalist jurists. By investigating them we can better understand the developments of Contemporary Jurisprudence. It is said that his approach represents an effort toward the dynamism of Shia Fiqh and responding to new issues while maintaining inferential frameworks.

Name	Yousef Saanei
Age	1316 SH
Position	Shia Marja' al-Taqlid
Nationality	Iran
Website	https://saanei.xyz

• Abstract

Relying on five key principles —the Principle of Justice (Qa'idat al-Adl), taking priority of the Quran over Hadiths, the revision of evidence based on contemporary needs, the Principle of No-Hardship (Nafi al-Haraj), and non-commitment to consensus (Ijma') and popularity (Shuhrat)— Sa'anei proceeded to derive rulings that differed from popular fatwas in cases such as the equality of Diya (blood money) and Qisas (retaliation) between men and women, the permissibility of judgeship and religious authority (Marja'iyyah) for women, the attainment of puberty for girls at age 13, the equality of testimony between men and women, and the Mahramiyyah of adopted children.

According to Sa'anei's fatwas, the permissibility of polygyny is conditional upon acceptance and consent of the first wife; he even considers polygyny as impermissible and void (batil) in case of first wife's discontent that involves harassing her. He also considers the legitimacy of temporary marriage to be limited only to emergency and exceptional cases, such as long wars. Sa'anei considered "customary justice" (al-adl al-urfi) to be the basis for many rulings and believed that the Legislator (Shari') has delegated the identification of instances of justice to custom (Urf).

Academic and Political Biography

Yousef Saanei was an Iranian Shia Mujtahid known for fatwas that differed from the common ones in the Shia jurists of his era. He was born in 1316 SH (1937 AD) in Isfahan and passed away in 1399 SH (2020) in Qom. He began his studies at the Isfahan Seminary (1325 SH/1946 AD) and completed them at the Qom Seminary (from 1330 SH/1951). He studied in Qom with some scholars such as Sayyid Husayn Borujerdi, Sayyid Muhammad Muhaqqiq Damad, and Imam Khomeini, and he began advanced teaching of jurisprudence (Kharij al-Fiqh) in 1354 SH/1975. Some of his jurisprudential works include: Resalah Tawdih al-Masa'il (a treatise of practical jurisprudence), Manasik al-Hajj (the rituals of the pilgrimage to Mecca), Majma' al-Masa'il, Muntakhab al-Ahkam, Medical Istifta'at (inquiries of the followers), Misbah al-Muqallidin, Ahkam Banuwan (Rulings for Women), and Kitab al-Talaq (a book on divorce).

Sa'anei's revolutionary activities prior to the 1979 Islamic Revolution involved efforts in cultural and promotional dimensions, such as issuing political declarations and statements. After the Islamic Revolution in Iran, he was Prosecutor-General of Iran for a time, and was an appointed Faqih of the Guardian Council, a member of the Society of Seminary Teachers of Qom, an elected member in the Assembly of Experts, and an appointed member of the Expediency Discernment Council.

Specific Jurisprudential Fatwas

Certain jurisprudential foundations and specific opinions of Yousef Saanei have always been debatable and controversial; including the puberty of girls at age 13, the permissibility of a woman leaving the house without the husband's permission, the equality of Qisas and blood-money between men and women, the possibility of women's judgeship, the lack of the male-gender requirement in Marja'iyyah and Wilayah, the natural guardianship of the mother over the child after the father, the restriction of the prohibition of music and singing (Ghina) to its content-based prohibition, the ritual purity (taharah) of non-belligerent kafirs, the restriction of the prohibition of Riba (usury) to consumptive Riba rather than productive Riba, Qisas of a Muslim for a Kafir, the possibility of inheritance of a non-Muslim from a Muslim, and the Mahramiyyah of adopted children.

Sa'anei prioritized customary justice over many Islamic rulings and believed in the inherent dignity of every human being, regardless of their beliefs. he wrote a series of booklets, published under the title Fiqh and Life, and explained the reasons for his fatwas.

In Sa'anei's view, the permissibility of polygyny is conditional upon the requirement that the second marriage does not cause harm to the first wife and is not customarily considered reprehensible or offensive, but rather meets her acceptance and consent. Relying on the verse “And live with them honorably” (Nisa, 19), Sa'anei argues that a second marriage is statutorily impermissible and has a void (batil) status in case of first wife's discontent that involves harassing her. And in his opinion, the legitimacy of temporary marriage is limited only to emergency and exceptional cases such as long wars, and promoting it as a solution alongside permanent marriage not only does not prevent corruption but leads society toward collapse by endangering the family unit and promoting licentiousness. Sa'anei's primary solution for addressing the challenges of the youth is the removal of economic and cultural barriers and the facilitation of permanent marriage, rather than resorting to temporary marriage.

Jurisprudential Principles and Rules

The principles and rules on which Sa'anei's jurisprudential fatwas were based consist of five influential principles: the Principle of Justice (Qa'idat al-Adl), special attention to the Quran, revision of evidence based on contemporary requirements, the Principle of No-Hardship (Qa'idat al-La Haraj), and opposition to consensus (Ijma') and popularity (Shuhrat). Sa'anei's fatwas do not fall outside the framework of jurisprudential inferences, even if they are innovative and present some relatively new principles.

Principle of Justice (Qa'idat al-Adl)

The Principle of Justice is one of the important and influential rules in Sa'anei's jurisprudence. According to this rule, a ruling that contradicts justice could not be issued by the Sacred Legislator, and religious sources such as the Quran and Sunnah serve to express the general criteria and standards of justice and oppression, while delegating the determination of instances and details to custom (Urf) and common sense (Aql). The Legislator considers custom as a criterion and binds himself to the judgment of custom, except in cases where the custom is facing an explicit religious text (Nass). Inferring religious rulings, as well as issuing a fatwa, jurist and Mujtahid must apply customary criteria of his era and conform religious standards to that. If the rational custom of society considers something to be oppression, the jurist cannot present it as justice, and vice versa; unless a definitive explicit religious text refuses it.

Citing verses such as “Indeed, Allah orders justice” (Nahl, 90) and other verses (An'am, 115, Fussilat, 46, and Nisa, 40, Ghafir, 31), Sa'anei believes that the system of God's commands is organized in terms of justice and that the standard of every religious command is justice. Therefore, according to the aforementioned verses and the priority of the Quran over hadiths and the command to discard hadiths contrary to the Quran, if the customary conception of justice is incompatible with the general or absolute edicts in hadiths or the explicit text of an uncertainly-said hadith (Zanni al-Sudur), the customary conception of justice must be taken priority over hadiths and the ones containing an unjust ruling (on customary conception) must be discarded or interpreted (Ta'wil).

Sa'anei utilizes this rule in issuing fatwa; for example, he does not regarded the reasons for men's right to divorce their wives as absolute rules and considers cases such as man's divorcing his wife without reason or man's refusal to divorce his wife in Khul' (when the woman is averse and has gifted or returned the dowry) as oppressive from the customary perspective, because it is customarily unjust to give the men full authority and take away women's authority solely on the basis of their gender. So he is of the opinion that the hadith "The man to whom the woman is married has the authority to divorce her" is not the absolute rule. And he pointed out some early scholars such as Ibn Zuhrah al-Halabi and Shaykh al-Tusi also considered divorcing the wife in Khul' to be obligatory for the man.

He is also opposed to the idea of ​​a woman's blood money (Diya) being half that of a man's. Saanei considers that customarily unjust because men and women are equal in human identity and social and economic rights (the rights confirmed by reason, Quran, and the Sunnah), and believes that hadiths indicating the halving of a woman's blood money must be discarded due to their contradiction with justice (this is a Quranic criterion for rulings).

Special Attention to the Holy Quran

One of Saanei's primary foundations is the prioritization of the Quran. He, on Qisas issue, appeals to the usuli rule to the effect that the certainly-said Quranic texts (Qat'i al-Sudur) has precedence over the uncertainly-said hadith (Zanni al-Sudur). He cites two verses: “And We ordained for them therein a life for a life...” (Ma'idah, 45) and “Prescribed for you is legal retribution for those murdered - the free for the free, the slave for the slave, and the female for the female” (Baqarah, 178) and considers their indication of equal Qisas for men and women to be clear and explicit (Nass). Therefore, in his opinion it is wrong to act upon hadiths indicate that taking a woman's revenge against a man as Qisas depends on payment of half the man's Diya, because they are explicitly contradict with the Quran.

Regarding testimony of women, Saanei's focus is on the verse “And if there are not two men [available], then a man and two women... so that if one of them errs, the other can remind her” (Baqarah: 282). Based on the verse, he concludes that the ruling of two women's testimony being equivalent to one man's is restricted to financial matters (debt) in the first place as well as it is neither permanent nor does it include all women. This is because scholars of Usul say if an edict is stated with a reason (Illah), and something seems to be a reason for an edict, that edict depends on that reason. Saanei believes that in this verse "the forgetfulness of one woman and the need for the other to remind her" is the reason for inequality in testimony and this is related to the social conditions of women at the Age of Revelation (women had not social activities and they were weak in financial calculations). Since women today have a active presence in social fields and are precise in financial calculations, their testimony in court is equal to that of men because the problem of forgetfulness is no longer relevant.

Revision of Evidence Based on contemporary circumstances

According to Saanei, the dynamism of Fiqh is tied to the "revision of evidence"; this revision does not mean changing or discarding evidence or imposing external beliefs upon it, but rather asking new questions about the texts and analyzing them for properly answers. This process is dealt with the common rules of Usul al-Fiqh and does not necessarily lead to innovation (Ijtihad) in Usul; rather, it could be inferred different fatwas from the branches (Furu') in a new inferential process, relied on the same common methodology. For example, in the issue of the Puberty of Girls, the revision of evidence led him to maintain 13 years of age as an independent criterion for puberty.

Saanei divides hadiths indicating the puberty of girls at the age of 9 into three categories: 1. Hadiths referring to age 9 without any condition, 2. Hadiths paired with other things such as menstruation, and 3. Hadiths explicitly specify the age of 9 because that's when they start menstruating: "Because when a girl reaches nine years, she menstruates." Saanei infers from this set that the age of 9 is a "pointing title" (unwan mushir) and lacks inherent subject-matter significance; because the first category of hadiths is restricted by the second and third categories; so based on the third category, the relevant matter and the cause of puberty is menstruation. Therefore, if a 9-year-old girl does not menstruate, she is not considered mature (baligh). Relying on a reliable (muwaththaq) hadith, he considers 13 years as another independent indicator for puberty.

In support of this view, some contemporary writers also believe that the hadiths related to puberty (indicating different ages of 9, 10, and 13) were issued from the Infallible's statue for subdivision of rules (tafri')—exemplification of a general rule— rather than the statue for legislation (tashri'); since the main criterion is menstruation and the specific age (like 9) was an instance suited to the conditions of the time of issuance and in Fiqh it can not be cited to unconditionally.

Opposition to Consensus and Popularity

Relying on evidence, Yousef Saanei issues fatwas and does not care about going against consensus (Ijma') or popular opinion (Shuhrat). His specific fatwas, including the permissibility of Women's Marja'iyyah and Judgeship, Equality of Diya, and Equality of Qisas, are examples of this approach. In the issue of women's religious authority, he relies on the Wise Fashion (Sirat al-Uqala) and the judgment of reason (an uninformed refers to a scholar without difference between man and woman) and, by ignoring the claimed consensus, does not consider being male a condition for Marja'iyyah, judgeship, or Wilayah.

Saanei regarded most of consensuses as "evidence-based" (madraki, i.e., based on other reasons) and, by critiquing those proofs, considers consensus to lack independent validity. For example, regarding the Guardianship of the Mother, he disputes the reported consensus and say: "If we accept that this consensus has been occurred, it will be strongly based on hadiths and be an evidence-based consensus; thus it is not a proof (hujjah)." This method removes the boundary between the inference of a ruling and the issuance of a fatwa. he is opposed to jurists who consider consensus invalid for inferring edicts but act upon precaution (ihtiyat) and do not stand up to popular views when they issue fatwas (i.e. present their view to followers).

Principle of No-Hardship (Nafi al-Haraj)

Another frequently used rule in Yousef Saanei's jurisprudence is the Principle of No-Hardship (Nafi al-Haraj). From his perspective, this rule is a definitive ruling, but the crucial matter is its extent. Sharia is based on the negation of difficulty and hardship (usr wa haraj). "Hardship" (haraj) is a customary concept without a seperate religious definition and its instances is identified customarily. The principle of ease and facilitation in religion is a governing criterion (a general principle) and can even be cited as a preference-criterion (murajjih) in the conflict of hadiths.

His fatwa on the Mahramiyyah of the Adopted Child is a prominent instance of this approach. He states on a question of mahramiyyah of a child whom someone adopted from the State Welfare Organization and whose age has passed the breastfeeding (ridha') period: we can not rely on the common religious ways (breastfeeding or marriage contract) in these cases, but there is no prohibition for looking given that caring for helpless children is a recommended and desirable act (birr and ihsan) leading to otherworldly reward and happiness in both worlds, and hardships and difficulties results from being non-mahram after the child's puberty (such as the problem of informing the child about his/her real parents, the spiritual suffering from childlessness, and the disruption of normal life). Citing the principle that "Islam is a religion of ease and facility," Saanei says these hardships allow us to lift the mandatory ruling (al-hukm al-taklifi). He is the first jurist who explicitly cited to the hardship to lift the prohibition of looking.

Critics and Opponents

There has been widespread criticism of the specific fatwas of Yousef Saanei. The Society of Seminary Teachers of Qom stated in response to a question regarding his religious authority: "based on investigations conducted over the past year and numerous sessions, The Society of Seminary Teachers of Qom has concluded that he lacks the necessary criteria to be a religious authority." At the same time, the Farda website claimed that they had inquired about the opinions of other Maraji' offices about Marja'iyyah of Yousef Saanei, and none of them considered this statement sufficient to disqualify him from Marja'iyyah, and the office of the Supreme Leader had not answered explicitly and had refered to one of the other Maraji'. The Assembly of Teachers and Researchers of the Qom Seminary also issued a statement expressing regret over this action.

Some books and articles have been written in criticism of Yousef Saanei's jurisprudential views, including:

• "Guarding Jurisprudence; A Critique of Ayatollah Saanei's Jurisprudential Views," by Husayn Hashemian, Ali-Asghar Hematian Sadrollahi Damghani, and Mahmoud Moqaddami, Tehran, Vosough, 1387 SH.
• "Reviewing the Jurisprudential and Political Views of Ayatollah Saanei," by Omid Hosseini, Tehran, Islamic Revolution Document Center, 1392 SH.
• "Defense of Islamic Fiqh and Politics," by Sayyid Muhammad Baqir Hasheminia, Tehran, Vosough, 1386 SH.
• "The Review of Ayatollah Sanei's Opinion on the Blood Money of Moslem man and Woman," Contemporary Comparative Legal Studies, by Muhammad Ibrahimnezhad, Vo. 7, No. 12, 1395 SH.
• "Critique and Review: Contemporary Jurisprudential Innovations according to Jurisprudential and Ijtihadi Standards," by Mahdi Nikouei, Tehran, Athar-e Amin, 1385 SH.
• "Criticism of Usury for Production," Ahl al-Bayt (AS) Fiqh Journal, by Reza Mohammadi Karaji, No. 58-59, 1388 SH.

Some of the criticisms of Saanei focus on his jurisprudential foundations and, in fact, reject the major premise of his arguments; such as the critiques directed at the Principle of Justice. Other criticisms relate to the application of the aforementioned principles to jurisprudential subjects and are about the minor premise of the arguments; such as the criticism regarding the Mahramiyyah of adopted children, where it is not accepted to cause a hardship.

Despite the critiques and opposition to Saanei's jurisprudential opinions, some of his critics maintain that his jurisprudential views cannot be called heresy (bid'ah); because not every innovation is bid'ah, and a view is considered heresy if, firstly, it is presented as a part of religion, and secondly, no specific or general proof, based on valid religious sources, can be provided for it.