“Jurisprudential Methodologies and Contemporary Challenges“

[This is the fifth in a series of my notes on the International Institute of Islamic Thought conference on Islamic Law and Ethics held in Herndon, VA in June  2014. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of participants (other than mine) in the general discussion have been omitted by request of the conference director.]

“Two Shi`i Jurisprudential Methodologies to Address Contemporary Challenges: Traditional Ijtihad and Foundational Ijtihad “

Presentation by Hamid Mavani, Ph.D., McGill University.

I will speak about the overtaxed and overused term ijtihad from the view of the Jafari school. The doctrine of imâma (leadership) is essential. You know that at the beginning there was no Sunni and no Shia. The two points of view emerged gradually over whether the ummah was to select Muhammad’s successor as community leader or whether he had selected his successor. In reality, Ali lived peacefully and compassionately with the other companions, but the dispute over whether Ali’s authority was usurped continues to fester. There is a story that Umar went to the house of Ali and demanded Ali’s bay`a (allegiance) coercively, even causing his wife to miscarry. This story fuels hostility. For the Twelvers the imamate goes through Hassan to Hussein, etc. to the twelfth imam, although there were many splinter groups as to who will be the Mahdi who will inaugurate the era of peace and justice. The 12th imam was born in the year 869 C.E. and went into a period of occultation under which he was not available directly to the public but indirectly through his intermediaries. For Shia jurists the hadith of the Imams have equal authority with those of the Prophet, both with regard to exoteric and esoteric knowledge. There is dispute as to whether they equal or are superior to the distinguished prophets. Prof. Mahmoud Ayoub has suggested that Shiism began radical and moderated beginning with the sixth imam. Later he went into occultation when he is unavailable directly or indirectly. This begins the process of indirect delegation, in which the jurists have the knowledge and piety to interpret even in the absence of texts. The jurists do not claim infallibility. Their enterprise is ijtihad. There is no more yaqîn (certainty) and we are now in the realm of (likelihood).

Shariah is the body of universal norms and principles and is static while fiqh is a human enterprise to try to understand the Shariah. Some use the term differently, but I use ijtihad to refer to deductive reasoning, clear cut analogy and other sources as well. Zamân (time), makân (place), darûrah (necessity), hâja (need), mashakka (hardship) are among the devices invoked, but these devices are removed from the usûl (fundamentals) and deal with contingencies that do not represent the norm. It is a band-aid that does not resolve the ethical dilemmas. We try to excavate the sources to support our position regardless with how distant they are from our situation. Some have argued that if you take a grain of rice in ribâ’ (usury) you have committed a sin equivalent to committing adultery on top of the ka`ba. To get around this, loopholes and stratagems and tricks are used under the rubric ijtihâd ad-darûr (original critical thought born of necessity) which may fool other people but not Allah. This is hîla shari`a, playing games with the law. Ayatollah Kadivar is on the cutting edge of structural ijtihad dealing with the furûd (mandates) and not just trimming the edges. Shabashtari also has some interesting ideas, and bookstores won’t even carry his books. Damad, Jannnati, etc., are to some extent dabbling in ijtihad at the structural level. Both would agree that essentials, ritual, and eschatology are exempt from review. We don’t know the `illa (purpose) of the number of raka in prayer, but if we can rationalize mu`alamât in the Qur’an we can do it with regard to prayer as well. This is a slippery slope. We need some structure from allowing this to turn into a completely open field. Those of us who favor ijtihâd al-usûl need to bring in the other sciences. Thus, the need for collegial ijtihâd. The term ayatollah al-`uzma (the grand jurists) raises the question of who is the grandest of all. We know mahr (bridal gift) changes with time and place. Ayatollah Khomeini, who was very sharp, realized that hands were tied in issues of governance, and he said the state has authority to transcend even the injunctions of prayer and fasting. Perhaps there is a better solution by including other sciences like hermeneutics and cosmology.

“Adapting Religious Tradition to the Modern Western Nation-State [Law and Ethics in the Wake of the Arab Revolutions]”

Second Presentation  by Usaama al-Azami, Princeton University

My dissertation deals with Islamist political thought. Jasser Auda would be considered an example, although atypical because of his Western education. Substantive ethics are inspired in part by extra-scriptural sources. Do human beings have the ability to assess good and evil? Auda represents a new trend that seeks accommodation with the West rather than rejection in the style of Sayyid Qutb, who holds Western values have no normative authority whatsoever.

One question that comes up is the question of justice. The Shariah is overall concerned with upholding justice. The Shariah is about wisdom that in every case aims at justice, and any ruling that leads to injustice or subverts mercy is not part of the Shariah even if it has been introduced into the Shariah. But what is justice? In the West, especially since Rawls, the definition of justice has merited much discussion, but Auda is satisfied to simply adopt justice as a standard. Is the Islamist concept of justice influenced by hard naturalism like the Mutazilite conception, as opposed to voluntarist conceptions like Asharite (although I am open to the argument that Asharism actually occupies a middle position)? Is x good because God commands it or does God command it because it is good?

The view of soft naturalism, the maslahah discourse of usûl al-fiqh, is that God made the world accessible to human understanding and therefore knowledge of the good is accessible outside the religious sources. Shatabi as well as many modern scholars embrace this discourse. Auda prefers mabâdi (principles) over ahkâm (provisions). Is it the principles of Shariah or the specific interpretations of the Shariah that should govern the constitutions of Muslim states? By using the term mabâdi he is opening new terrain and allowing a shift outside the juristic tradition, but as we saw yesterday, he will still seek precedence within the tradition because we must have continuity with the tradition in order to succeed practically. Auda is hardly new in this regard, but he has a fairly rigorously articulated usûl. I think he is taking into account pluralistic concerns brought about by modernity. One could argue that Auda is capitulating to Western pressure, but ironically his adoption of the term “human rights” frees him from a hegemonic definition of those rights to pursue a truly universal understanding of human rights that may go against certain interpretations of human rights but at the same time allows him to oppose the imposition of Western definitions of human rights on other cultures.

When we look at how the Prophet organized his armies we cannot consider them binding on us because circumstances are different, but Auda wants the same freedom to contextualize Qur’anic verses on the spoils of war. In the same way he says jizya is a maqasid-based consideration that need not be applied any longer. He treats hudûd in the same way. In some ways this is uncontestable. Even the most literalist reader of the Qur’an would agree that the command to prepare one’s horses for war must be understood contextually. In deciding what questions are decided by maqasid and what are to be decided by the tradition, Auda will defer to the ulama to decide.


Abdulaziz Sachedina, George Mason University. What is the purpose of taking up methodology in a discussion of imâma? We need a clearer picture of what ijtihad is. Ijtihâd ash-shar`i is deductive with only the limit that it should not contradict the clear text. The Hausa are probing sociology and psychology. They no longer wish to ignore modern knowledge. Rather than dwelling on the imâma you need to consider the historic period between the pre-modern and the modern and explain why you take up the distinction between tradition and modern ijtihad. The classical jurisprudence worked in the context of empire whereas the moderns operate in the context of the nation-state. Their judicial authority has been constitutionally enacted. This is the question raised during the Rushdi crisis. Mabâdi are based on precedents.

David Vishanoff, University of Oklahoma. We cannot know the Prophet’s intention from what he did. Zakat has a strong social, even political, dimension, yet it is considered a matter of ibâdat. We want to say that whether we are bound to imitate a certain action is based on the category in which it falls. Often times in Islamic legal theory our categorization (ibidât vs. mu`amalât) becomes a rhetorical strategy for promoting our end as to whether a rule should be permanent or contextual. You note that one can do almost anything with the traditional methodology and find that unsatisfying. You list other things, like egalitarian justice, that we need even more. Can the notion of justice evolve, or is egalitarian justice the universal principle? Are we to be guided by methodology or by Muslim popular opinion? We need to consider the role of culture, and not just Islamic culture, in determining what is Islamic.


Imad-ad-Dean Ahmad: Paradigm shifts are implemented by new generations. I understand that Auda is addressing Yusuf Qaradawi, but Tajdîd will come from young people when they accede to positions of authority. I do not see that it is necessary for ijtihad to operate within the nation-state. That paradigm is also eroding.

[Name Omitted]: The first Muslim community was, like the early Christian church, an eschatological movement. The Prophet deputized certain services. The Shia, in placing the imam out of history, have placed him into eschatology. While eschatology did not disappear in the Islamic view of the world, it plays a different role now than it did in early Islam.

[Name Omitted]: It seems to me that Jasser is seen as an outsider. David’s point on categorization is interesting and I would like to hear more about the matter in Jasser’s work.

[Name Omitted]: The imâma is foundational in the Twelver worldview. It shows the transmission of authority from the Imam to his disciples and this becomes more expansive in occultation and then is expanded even further by when Khomeini as head of the nation state gives himself authority equal to that of the Imam. Montatal-farâgh is the vacuum in which the state may operate. When the scholars changed their minds on organ donations on grounds of muslaha they said you can take an organ from non-Muslims but not give one to them. When it was pointed out this would give Muslims a bad name, they allowed leaving organs to non-Muslims in one’s will. When one jurist was asked about taqiyya (dissimulation) by the infallible imams, he said, we jurists do it because we fear the repercussions of our rulings on the masses that they may rebel against us. Many scholars are waiting for the proper time to reveal their actual opinions.

[Name Omitted]: I agree with Abdul-Aziz more on the importance of the nation-state. Conceiving of the Shariah bound within the nation-state is a radical departure. I deal with Jasser Auda’s ideas and approach, not with the question of how to implement tajdîd.

[Name Omitted]: What is it about Auda’s methodology that you seek to articulate that he has not articulated himself?

[Name Omitted]: I think we still operate within the boundary of the nation-state. I was intrigued that Auda is categorized as an Islamist when from the Indonesian point of view we see him as a moderate. Indonesians are tolerant of Christians and Hindus but not of Ahmadis. Auda wants to legitimize the maqasid in the precedent of fiqh.

[Name Omitted]: I want to address people’s rights to limit themselves. In Dubai you cannot have organ donations from living human beings. If we cannot take things from outside, we can’t take Al-Ghazali’s ideas of qiyas that come from Greek philosophy.

[Name Omitted]: Some people will idealize some scholars or demonize others. Muhammad Abdu, for example, was both idealized and denounced as a non-Musim. We know Sayyid Qutb’s views were affected by his imprisonment, but I see no discussion of this from the people contemporary with him.

[Name Omitted]: Jewish rituals were changed a long time ago from being public to being limited to the private sphere. German Muslims have changed their prayer time. Lived Islam is going on.

[Name Omitted]: I want to question the notion that our methods are not addressing our problems. Will we accept the outcome of our methodology even if we dislike the results? We must not lose the tradition as a source of critique of modernity.

[Name Omitted]: In Shiism the door of ijtihad is still open. Thus we see Shaikh Fadlullah as more liberal and modern. Is this not the case in Iran? I hear of the tyranny of tradition, but I thought that the individual scholars had more flexibility. You are saying that people are fearful of popular backlash.

[Name Omitted]: I agree there is more flexibility in the Shia approach, a more Mu`tazili approach. But tradition has its own inertia. Ayatollah Fadlallah has been reprimanded often for his scholarly opinions. Even Ayatollah Borujerdi had to restrain himself. We all censor ourselves. Is justice something that evolves?

[Name Omitted]: Jeffrey Stark says people who strongly believe in the truth of their faith tradition may approach their tradition with pre-commitments that make them uncomfortable within their own tradition. We need dialectic rather than a one-way street. I acknowledge Umar made changes in the spoils of war, but he had unusual leadership abilities.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute






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