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PhD Thesis: Expediency in Shiite Jurisprudence by Yahya Jahangiri

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.

This concept can be discussed and reviewed from various aspects and dimensions and jurisprudent meditations have a long history in Islamic religions especially Shiite jurisprudence in terms of some of its theoretical dimensions.

The Sunni Jurists, due to historical and ideological reasons, compared to the Shiite jurisprudence and statute book has had more tendency to design and review of expediency as a way of fulfilling the decrees of religion.

Abstract

Maslahat is an Arabic word which is used in Islamic Jurisprudence or fiqh, Maslahat is a rule in Islamic Jurisprudence which is used in many cases. Maslahat means profit and its meaning in Islamic Jurisprudence is similar to the meaning of this word. In Islamic Jurisprudence Maslahat means doing a work in the way that cause expediency and makes profit. The council of expediency in the system of the government of Islamic republic of Iran represents a unique institute. The mentioned institute has many works. I want to say that council of expediency has an important role for the government of is Islamic republic of Iran. Because the rule of Maslahat is an important role in Islamic jurisprudence and as we all know Islamic rules have an important impact on the law of Islamic republic of Iran and the Iranian government apply the mentioned rules. In this study we wanted to analyze the rule of Maslahat and its impact.

The fact is that the discussion of jurisprudence and expediency is a comparable, interreligious discussion and a jurisprudent philosophy. The decree of the necessity of paying attention to expediency in jurisprudence has not denied any of the religions; also, none of the Sunni religions, even Malekieh, absolutely accepts expediency.

What is intended by expediency in the technical terms of jurisprudence is not only attracting advantage and avoiding worldly disadvantages, but it also means maintaining the objectives of Sharia such as religion, self, rationality and generation.

 Expediency is divided into two groups in terms of durability and continuity: constant expediency and variable expediency.

Istihsan as a concept is close to equity in western law. However equity in western law is based on natural law, whereas Istihsan is essentially based on divine law.

Regarding questions related to God, ‘ibadat, humans should look to the Quran or theSunnahh for answers, but regarding the relationship between humans, mu’amalat, humans should look for the best public solution. Since societies change, al- Shatibi thought that the mu’amalat part of the Islamic Law also needed to change.

On the basis of Maslaha, the companions decided to issue currency, to establish prisons and impose Kharaj (agricultural land tax). The Ulama of Usul are in agreement that Istislah is not a proof in respect of devotional matters (Ibadah) and in respect of specific Sharia injunctions like shares of inheritance. The majority of Ulama maintain that Istislah is a proper ground for legislation.

Istiṣlāḥ may not be used when the material advantage to an individual or community directly conflicts with explicit teachings of Islām.

The time when the effect of both interest and harm appears is not limited in this world
but takes the hereafter with that time. The Sharia interest value is not just in the temporary pleasure, but it springs from the need of both body and soul.

Giving priority to protect religion over other things and the Muslim must sacrifice any
other interest to keep the interest of religion. Goodness and badness in human acts are considered as an impact and result of the Judgments of thing is be accepted or detested in Sharia.

Need to Discuss

In Muslim countries where Islam is the official religion, Sharia is declared to be a source, or the source, of the law; where the governments derive their legitimacy from Islam. In Pakistan, Iran, and Iraq, among others, it is also forbidden to enact legislation that is antithetical to Islam.

Accordingly, the serious challenge of Sharia in the new era consists of the fact that rules which could have been appropriate and efficient in the ancient society could not be necessary appropriate and efficient in the new conditions. This observation raises the question of efficiency and appropriateness of the Sharia in the modern world. Many critics against application of Sharia concern this observation. Furthermore; other challenge for Sharia consists of absence of rules of Sharia about new social and economic phenomenon in modern world and necessity of regulations in these respects. In fact, many new economic, social and political phenomenon and questions (like Banking, Corporation, Competition, Finance, Internet, Transport, Labor, Transsexual operation, Insurance, etc.) have been raised for the first time in the history and many of them need to be regulated by law. However, naturally there are not any specific rules in these matters in Sharia and Islamic law. (Babaei, June 2009, p. 2)

The Islamic legal system is fully equipped to deal with the first category of social changes. Even though the historical advent of Islam occurred during a specific time and in a specific place, it is quite reasonable to extrapolate a universal, ahistorical and timeless legal framework for different aspects of social relationships. Many legal aspects of social alterations can, in fact, remain stable in spite of their formal changes. This enables Islamic law (Sharia) to form a general juridical framework for the various categories of social associations. In reference to different sections of Islamic law, there exist a selection of unchanging, absolute and general rules that, at any time and place, all Muslims are obliged to respect; they are required to harmonize their public and private relationships with these rules (Vaezi, 2004, p. 30).

Are the mentioned observation and critics decisive? How Sharia could afford these challenges? Two absolutely different reactions and measures have been provided in Islamic societies to afford these challenges:

  1. avoiding the entrance of modernity to the society and so keeping away from modernity and the changes which it provokes in the social and human relations and so insisting on traditional life and relations; or
  2. Adapting new interpretation of Sharia by taking on consideration the new nature and exigencies of the modern social, economic and human relations and finding proper Islamic rules which satisfy the purposes and sprit of Sharia.

In this respect, the fundamental question is to know, how Sharia that is based on the words of God and Prophet in fifteen centuries ago could be adapted to the modern world. and how it could rest faithful to the purposes considered by Islamic rules and at the same time regulate efficiently and properly modern society, in despite of serious divergence of the nature and realities of modern social relations?

This is the way that many Islamic intellectuals have tried to draw and to traverse through since early 19th century. This is the way that many Islamic scholar’s particularly Iranian Islamic intellectuals have tried to traverse practically since Islamic revolution on 1979. (Babaei, June 2009, p. 3)

These examples of obligations, prohibitions and conditions concerning one aspect of social life, even though they do not embrace all the Islamic edicts in this field, help us to confront developing models of contracts. New forms of contracts, whether they are altered versions of familiar and prevailing models or entirely original ideas without previous record, can be categorized as either lawful or unlawful according to these three principals and so on. For instance, “insurance” is an example of an entirely new contract, while purchasing books via an online bookstore is merely a new method of trading which, although formally different, is a continuation of a particular category of business. When all these new forms of contracts adopt and fulfill the framework that has been drawn by Sharia, they are considered lawful (Vaezi, 2004, pp. 32-33).

Since, many Muslim-majority countries have now embarked upon conscious efforts to inject more religion into government. (Elbayar)

“An increasing number of Muslim-majority countries are inserting ‘Sharia supremacy’ clauses into their constitutions, making any legislation which contradicts the provisions of Islamic law unconstitutional. This trend is a continuation of one that began in 1979 in Pakistan with the passage of the Hudood Ordinance, and in Egypt with a 1980 amendment to the constitution stating that “the principles of the Islamic Sharia are the chief source of legislation.” More recently, the newly adopted Iraqi constitution included a clause stating that “no law can be passed that contradicts the undisputed laws of Islam.”” (Elbayar)

In fact, Western policymakers, ‘Islamic’ regimes, and indeed large numbers of individual Muslims have all grossly misinterpreted Islamic law. Sharia is not a rigid and immutable ‘law of God’ based on unchanging texts written in the middle Ages. Understood and applied correctly, Sharia is an imminently flexible, dynamic jurisprudence that is fully compatible with the modern human rights framework. (Elbayar)

Some believe that religious orders provide God’s favor, but public expediency provides human desires. The slogans: “either God or people”, “either religion or the masses” and “either Divine Law or mankind” show how disagreement exists between them.

Undoubtedly, harm cannot be converted into something that is benefit and vice versa. Therefore, it is important to note that the consequences of this benefit should be with Sharia objectives. It has also been an accepted principle in Islamic jurisprudence to give priority to public interest over individual interest. (Mashal, 2010)

Imam Khomeini as an expert on religion and one, whose entire efforts are directed towards implementing the Divine laws, forcefully defends the society’s rights and demands.  This reveals that laying emphasis on theo-centrism does not necessarily lead to repudiation of people and their demands or the other way round, laying emphasis on people’s rights does not lead to repudiation of theo-centrism. This point was emphasized for the reason that at one time in the west’s brief history, they spoke of the sovereignty of religion of the Middle Ages and public expediency was neglected; and at one time they spoke of public general expediency / interest and religion was treated unfairly. Thus, the aforesaid emphasis reveals Islam’s ability to coordinate and synchronize these two fields. (Mansour-nejad, p. 6)

Imam Khomeini announced that:

“These men shall consider that expediency is one of the important affairs neglecting which sometimes causes the failure of the dear Islam. Nowadays, the Islamic world considers the Islamic republic of Iran as the display of all of the resolutions of his problems. The expediency and people are important affairs resisting which might question the Islam of the barefoot on the earth in the short and long time…”

According to the Shiite political narration, expediency is considered a part of the rules of Solution of “Opposition of interests”, so it is evaluated as an Essential. According to this interpretation, Ayatollah Khomeinis (P.B.U.H) emphasis on the necessity of considering Islams expediency and Muslims interests in controlling society and also his opinion about the establishment of Expediency Council can be considered as the climax of a process that has existed from the first steps of establishment of Islamic Government.

The revival and application of this process has been one of the main enterprises that Shiite thought has experienced after its success in gaining the leadership of society in 20th century.

A more liberal strain of utilizing Expediency Rule has been important in the 20th century in Shia and Sunni era. Rashid Rida was one the prominent scholar paid more attention on it. He considered that the “no harm no retribution” which is one of the basic hadith in Islamic jurisprudence, the supreme principle of legal liberalism, trumping all other principles of Sharia. (Vikør, 2005, pp. 234-235)

by putting forward the idea of general (public) expediency (common
good) the slogans “either God or people,” “either religion or the masses,” and
“either Divine Law or mankind” become baseless as well because as an expert
on religion and one whose entire efforts are directed towards implementing the Divine laws, Imam Khomeini forcefully defends the society’s rights and
demands. This reveals that laying emphasis on theocentrism does not
necessarily lead to repudiation of people and their demands or the other way
round, laying emphasis on people’s rights does not lead to repudiation of
theocentrism. This point was emphasized for the reason that at one time in the west’s brief history, they spoke of the sovereignty of religion of the Middle
Ages and public expediency (good) was neglected; and at one time they spoke
of public (general) expediency (interest) and religion was treated unfairly. Thus, the aforesaid emphasis reveals Islam’s ability to coordinate and synchronize these two fields.

This research is significant from theoretical and practical perspectives. It aims to
contribute to the body of knowledge on Islamic Fiqh, particularly on theoretical issues of Maslaha. Accordingly, it offers insights on the dynamic Fiqh.

Background Literature

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. This concept can be discussed and reviewed from various aspects and dimensions and jurisprudent meditations have a long history in Islamic religions especially Shiite jurisprudence in terms of some of its theoretical dimensions.

The Sunni Jurists, due to historical and ideological reasons, compared to the Shiite jurisprudence and statute book has had more tendency to design and review of expediency as a way of fulfilling the decrees of religion. (Jahangiri, 1393 A.h., p. 21)

The foundations for philosophical discussion of Maslaha were laid down by classical jurists such as Al-Ghazali (1058 -1111) and Al-Shatibi (n.d.- 1388).

Newer interpretations of this concept and its applications in the domain of policy and governance are relatively new and don’t have a long history and have been discussed and reviewed widely in the period of Islamic Republic of Iran and mainly by Imam Khomeini. This is only due to the lack of experience of formation of governance by Shiite jurist in a long period throughout the history; whereas the application of expediency has been around longer in the jurisprudence of Sunnis given their special theoretical decrees. (Jahangiri, 1393 A.h., p. 28)

For example a special sitting was organized on 22nd February, 2015 on the topic of “status of expediency in Shiite jurisprudence” in the faculty of political rights and sciences of Tehran University. According to the received report, teachers of religious seminary and university have dissected this topic that what is the role of expediency in political jurisprudence of Shiite, its history in Shiite memoirs has been discussed. (A sitting organized on the topic of “status of expediency in Shiite jurisprudence” in Tehran, 2015)

The book “Islamic Jurisprudence and Expediency” written by AbulQasem Alidoust in Persian was selected Iran’s book of the year. (The book “Islamic Jurisprudence and Expediency” selected Irans book of the year, 2011).

Research Main Questions

What is the function of Maslaha in Shiite Fiqh?

Research Secondary Questions

  1. What are the status of expediency and its application in the jurisprudence?
  2. How is the status of validity of this rule in jurisprudence?
  3. In what way the political and governmental jurisprudence is based on expediency?
  4. Is the discussion of the rule of expediency in Shiite jurisprudence has been tended towards formation of political system only because of our need or is this rule deep and old?
  5. At the time of the conflict of general expediency with a jurisprudent offshoot, what solution shall be selected?
  6. What is the role of experts, the council and so on in discovering the expediency?

Research Hypothesis’s

Main Hypothesis:

The Maslaha possesses significant function on Shiite Fiqh to be flexible and dynamic.

Sub Hypothesis’s

  1. The status and application expediency has long history in the jurisprudence.
  2. There is no confliction between expediency of the people and Religious orders.
  3. Expediency rule can play significant role in dynamic fiqh and Huk al-Hukumati.
  4. Relying on expediency rule does not require necessarily secularization.

Research Methodology

In order to gather the basic information and the theoretical decrees, in terms of purpose, the library method was used for which purpose the reference libraries, associated articles, databases and the available documents associated with the purpose of reviewing the status of expedience and its effects on the laws of Shiite and its jurisprudence and statute book were used and notes were taken.

The theory was searched and studied by using descriptive methods of argument, interpretation, deduction and comparison.

Research Objectives

This study will comprehensively inspect the concept of Maslaha as a rich element for enrichment of Islamic jurisprudence. It aims to provide deep insights for Islamic political systems based on Fiqh to match their products more accurately to the demands of Islam. Specifically, this thesis will consider the link between Maslaha and Dynamic Fiqh structures.

Based on the research questions, this study aims to develop a decision framework that incorporates the concept of Maslaha in religious and social-political issues. Furthermore to explore the current system of legislation particularly in post-revolution Iran, and describe how Shiite scholars can
standardise and apply Maslaha in their process of Ijtihad.

Thesis Structure 

This thesis is presented in seven chapters:

First chapter called generalities presents the need to discuss, the background literature, research main and secondary questions, research hypothesis, research methodology, research objectives and the abstract of the thesis.

Second chapter reviews the conceptual survey on the concept of “Maslaha”, “manfaa”, “Fiqh”, and “Sharia”. Through this chapter we gain very clear understanding of “Maslaha” in Shiite jurisprudence.

Chapter three covers History of expediency throughout both Shia and Sunnis jurisprudence. Regarding the history of Shunni fiqh, it reports who upon Maslaha has been relied in the Companions era as well as in the period of Juridical Imams.

With respect to Shia jurisprudence, very logically it divides into the era of presence of Infallibles and the Major Occultation era. The research tries to give fair report on how Holy Prophet SAW and then 12 infallibles resorted to the Maslaha.

As Shia Jurists have been resorted to the Maslaha after the Islamic Revolution in Iran in comparison to pre- Islamic Revolution in Iran, the thesis explores deep and wide report.

In this chapter we gain the Similarities and differences between Shia and Sunni with regard expediency.

The forth chapter tries to find proofs on validity and authenticity of Maslaha within the holy Quran, Sunnah and the reason.

The chapter five talks on types of  Maslaha. Afterward reviews on the criteria and measures for expediency discernment. This chapter contains the proofs for validity of expediency including holy Quran, traditions (hadiths), rational reason, etc.

The chapter six talks on expediency and governmental command by giving précised definition on governmental command and its relation with expediency.

The last chapter defines the concept of secularization and magnifies its differences with secularism. In this chapter we discuss on expediency and secularization. It shows that how restoring to Maslaha would not lead to secularization

Ending part of the work draws together the results of the data analysis and Conclusion of the research, then discusses the limitations of this study and provides directions for further research. The dissertation ends by bibliography.

Table of Contents

The thesis is dedicated to:

Acknowledgements

Preface

Generalities      

Need to discuss

Background literature

Research main questions

Research secondary questions

Research hypothesis’s  

Main hypothesis:

Sub hypothesis’s

Research methodology

Research objectives      

Thesis structure               

Abstract              

The Concepts    

Concept of “maslaha” (i.e. Expedience)

  1. Etymological analysis of the word “maslaha”

Ii. Lexical meaning of “maslaha”

Iii. The usage of “maslaha” in the holy quran

Iv. A comparison between the definitions of maslaha and “manfa’a” (i.e. Interest and benefit)

The concept of “manfa’a” (i.e. Benefit) opposes to “dharar” (i.e. Harm)

Analysis of relation between maslaha and “manfa’a” (i.e. Benefit and interest) on the basis of the chapter of four-fold relations in the traditional logic

Possibility of assigning “dharar” (e.g. Harm), to allah the almighty differs from“mafsada” (e.g. Corruption)

  1. Summary and conclusions

Concept of “fiqh” (i.e. Jurisprudence)   

Usage of the word “fiqh” in the quran

The meaning of the term “fiqh” as a science

The difference between “fiqh” and “sharia”

Lexical meaning of “sharia”

Summary and conclusion

The relationship between “fiqh” and “maslaha”

History of expediency throughout          

In the companions era

In the period of juridical imams

Shia jurisprudence         

In the presence of infallibles’ era

In the major occultation era

Chapter 2: the expediency among shia jurisprudence

Section 1: similarities and differences between shia and sunni with regard expediency  

Part 1: similarities

Part 2: differences

Proofs for validity of expediency             

Holy Quran         

Rational reason

Traditions (hadiths)        

Part 4: consensus (the jurists view)

The types and paradigm of the expediency        

Types of maslaha            

The essentials (daruriyyat)

The necessities (hajiyyat)

The embellishment (tahsiniyyat)

Maslahah mu’tabarah (accredited maslahah)

Maslahah mulghah (discredited maslahah)

Maslaha mursala

The paradigm and indicatores of expediency     

First indicator: compliance with quran, sunnahh and ijma

Second indicator: compliance with the tradition

Third indicator: in line with religious objectives

Fourth indicator: compliance with the most important principle

Fifth indicator: protecting islam and the islamic system

Sixth indicator: concern for public interests and inclusiveness of expediency

Seventh indicator: decisiveness and certainty of the expediency

Eighth indicator: fairness

Expediency and governmental command            

The definition of governmental commands        

Governmental commands;  first order or second order?               

Definition of “first order” (al-ahkam al-awaly)

Definition of “second order” (al-akham as-sanavy)

Scope of governmental commands        

Contrast between the governmental commands and fatwas

Governmental commands; sacred or not?           

First approach:

Second approach:

Summary of the two approaches

Summary and conclusion             

Sacralization or secularization    

Definition of secularization         

Secularization or secularism       

Review of secularization of jurisprudence through expediency 

Conclusion         

Further research             

Limitations of this research         

Bibliography

This Thesis was written by Dr. Yahya Jahangiri a seminary scholar, religious lecturer and professor of Hawza Ilmiyya and university who is graduated from International Institute for Islamic Studies, Qom, Iran.

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