Expediency is one of the titles which have important statuses in the Islamic jurisprudence and its association with religious decrees is clarified while determining its concept and it specifies the authorities of the prudent leader.
What follows is an interview with Hujjar al-Islam Dr. Yahya Jahangiri, a seminary scholar, religious lecturer and professor of Hawza Ilmiyya and university of Qom, Iran:
- 1.What is the definition of Maslaha (expediency) according to the Islamic doctrines?
Actually the definition of “maslaha” or its synonym in English “expediency” based on the Shiite understanding is different from the understanding of the Sunnism. These both understandings of maslaha is also different from what is meant by the interest or public interest in the Western culture. So there is a concept of public interest and some have translated maslaha to public interest, this is the understanding of Western thought. Based on their understanding what is in the favour of people or the nation that would be the maslaha. But in Islamic understanding that is different. In Islamic understanding, from juridical perspective it dates back To Ghazali. Ghazali as a very prominent scholar produced maqasid al-shari’a al-khamsaor the 5 purposes of the shari’a and it is different from ilal al-shara’i’ which is used in Shiite understanding. Based on Ghazali’s understanding, the very purpose of producing Islamic laws is to protect the nafs(life), din(religion), ‘aql (reason) ‘irz (honour) and mal (properties) of the believers. So each hukm or fatwa issued by the jurists should be in the favour of these 5 purposes. But in Shiite understanding, that is different. Actually in Shiite understanding, due to many historical and social reasons, maslaha is not limited to worldly purposes. That is a very important point. Also maslaha in Shiite understanding differs from the Western culture. The 2nd point is that Shiite understanding is not limited to the 5 purposes. Thisis also very important. But in Sunnism it is limited to 5 purposes. Yes, recently some Sunni scholars like Sa’id al-Buti tried to say that we have to increase the 5 purposes. 5 purposes are not divine purposes in a way that we have to be restricted to. We can increase or decrease the purposes. In Imam Khomeini’s view or Shiite view or Shiite understanding of maslaha, the purposes are not limited to those 5 purposes. It is the main difference. For example,Imam Khomeini in his explanation of maslaha, says that in some cases the protection of the Islamic system or the nation is the purpose of maslaha but you cannot find protecting Islamic system as a purpose in Sunni understanding. You see how they are different. Maslaha in Sunni’s understanding plays its role within the realm of fiqh but in Imam Khomeini’s understanding of maslaha as one the very producers and very prominent scholars in this field, maslaha is not limited only to the domain of fiqh but rather maslaha is dominant to the jurisprudence. It means that in some cases we can suspend some of the shr’i rules due to its contradiction to the maslaha. So according to Imam Khomeini, maslaha is more active and even in some cases it has priority to the other rules of fiqh. You see these differences. From historical perspective also they have many differences.So there are difference in the definition and purpose.
- What is the Shi’a viewpoint with regard to acting upon Maslaha in laws?
Actually we have 2 different viewpoints. We can say one is the text-based viewpoint or text-based approach. The advocators of this view believe that we have to be restricted to the text, we have to be very loyal to the text. We have some different minor views also but I’m talking on the two major views. The second major view belongs to the advocators of purpose-based jurisprudence. They say that fiqh actually is a science and a law; it is a kind of understanding and in the law the very purpose of establishing the law and the very purpose of legislation is to find the purpose not to be restricted to the content of the law. When one law is working well in some eras and areas but it is not working in other areas or eras we have to change it and we have to look at the maslaha because shari’a came to establish the maslaha and Allah is looking at amalsalih (good deed). If fiqh is looking at amal (deed) when it can be amal salih? When there is a maslaha. So we are not allowed to talk about the form of the religion without any maslaha in. So amal salih is done when there is maslaha in that. From this view they are called the followers of the maslaha-based or purpose-based view. Today we have these 2 different ideas. So the first group payrare attention to maslaha and they take care of the text but the second group look for the purposes. That is why it seems that their understanding is more modern than the first one which is classic and traditional. For example, in the case of the increasing the population, the first group said that we have to work based on the text. We have to obey whatever the text says but the second group say we have to look at the purpose; in some cases, we have to decrease the population and in some cases we have to increase, we are not allowed to increase the population while we have many problems and it leads Islamic society into crisis. Or for example, regarding women studies, the first group are every loyal to the text but the second group say that some of these texts date back to the era of early Islamic period and today the roles of women have been actually changed and they have been developed. So we have to look at the purpose of these laws not to the content.
- Then, how Maslaha in the Shi’a viewpoint is different from concepts such as Istihsan and Masalih Mursalah in Sunnis’ jurisprudence?
Maslaha in Sunnis’ understanding is used in the area of maslaha mursala which refers to the time when Allah has not said any thing about it. In some cases, we have maslaha mu’tabara in a way that that Allah has mentioned the order and hukm and fatwa of that issue and in some cases shari’ has removed maslaha in that case in a way that he has banned doing that, for example drinking wine. Allah has said that there is no maslaha there. It is maslaha mulghat. No maslaha there. In some cases, it is maslaha mursalah; it has been left without any order; so in Sunnis’ understanding maslaha is used only in these areas but in Shiite understanding, maslaha not only is used in the case which has no an order but also used when there is an order. So there is an order there but based on having maslaha in Shia viewpoint we can suspend the previous order. For example,Allah has ordered us to do hajj; so there is maslaha there but in Shia understanding if going to hajj makes some problems or it is not secure for the people to go to hajj we can suspend going to hajj while it is not maslaha mursala. It is maslaha mu’tabara because already there is a maslaha based on the order but due to maslaha we can suspend it. So it is the difference between maslaha mursala in Sunni understanding and Shiite understanding. In Shiite understanding maslaha is very wide. The second difference is that in Shiite understanding maslaha is to suspend the order not to make itvoid completely. So as long as maslaha exists we suspend the order but when there is no maslaha the order would be revived and the next point which is important is that maslaha in Shiite understanding (mostly in the Shiite political jurisprudence) is used in the political jurisprudence. In another word, it is in the hand of the Hakim(ruler) not in the hand of the Mufti (the one who issues fatwa). In Shiite jurisprudence there is a difference between Hakim or Waliyyal-Faqih and Mufti. Mostly maslaha is used by the Hakim.
- How Maslaha in the Shi’a viewpoint is different from Maslaha in Secular way of understanding?
In the Western or secular understanding of the maslaha, they only take care of the benefits of the worldly life. As long as there is a worldly benefit and interest they neglect the shar’i order but in Shiite understanding we have to pay attention to the maslaha of both worldly life and the divine or hereafter life. Secondly in the secular understanding of maslahaor public interest they only think of their own community, country and society but in Shiite understanding we have to expand the domain of maslaha as much as it is going to keep and protect the benefit of all Umma, communities and humans.
- Is there any example for acting upon Maslaha in the Sirah (way of life) of the Prophet (PBUH) and his Progeny (AS)? If yes, please mention some cases.
Maslaha has played a role in the life of the Prophet. Actually the whole messages and orders of the Prophet were full of the maslaha. However, we can’t find the maslaha we are talking about and which is based on our definition it in the life of the Prophet because here it has a specific definition and this definition is the contradiction of maslaha with the text but at the time of the Prophet actually if he was changing any text it was not due to maslaha; rather it was called Nasikh and Mansukh (abrogater and abrogated) which is different. Yes, if we expand the definition of maslaha in a way that it can include Nasikh and Mansukh we can say that at the time of the Prophet Nasikh and Mansukh is a Kind of the maslahain a way that the Prophet was changing the order based on the maslaha but it is not based on the very specific definition of the maslaha I gave.
- How Maslaha in Shi’a fiqh is connected to the theory of governmental verdict (Hukm-i Hukumati)? What are the features of Hukm-i Hukumati?
As I mentioned in Shiite jurisprudence the very era of maslaha is governmental maslaha but it is not limited to it. Maslaha plays an important role in many other areas but the very area of maslaha is the one related to Waliyyal-Faqih who is issuing the governmental order. In Shiite jurisprudence we have fatwas and verdicts which are issued based on the text or hukm awwali(the primary order) or hukm thanawi (the secondary order). Secondary orders are based on zarura or need. For example,when there is a need they can change the primary order. You should fast but if you are in need or there is a problematic issue you can change the order. It is still the verdict and order. But governmental verdict is different from zarura as well. What makes the Hakim different from his role as the Muftiis that while he is Muftihe issues fatwa based on the primary or secondary orders. He says you should fast based on the hukm awwali or should not fast because you are in dire need of water. So you don’t fast. Still it is the secondary order. But governmental order as Imam Khomeini mentioned is not the secondary order or the third order. It is prior to the first order. It is not in the hand of the Mufti. It is in the hand of Hakim or Islamic ruler. When he sees that there is an expediency in doing something his order is above the primary and secondary orders. That is why even the maraji’ (religious authorities) should follow it.
This interview was conducted by Sayyid Mostafa Daryabari and Dr. Morteza Karimi.