Revisiting Traditional Fiqh in Respect to New Daily Occurrences

Location: Madreseh Fiqhi Imam Baqir (institute of Ayatollah Shubayri Zanjāni)

Date: 7th March 2018

Speaker: Ayatollah Dr. Muhaqqiq Damad

Transcribed by Sadiq Meghjee.

The subject being discussed today is the continuation of Shī’ī ijtihād in daily issues. Ijtihād itself is a sacred institution which explains the ending of Prophethood from a theological perspective. If we don’t accept ijtihād in its full spectrum then we will have a problem in theology explaining the end of Prophethood. What I intend by the term continual ijtihād (ijtihād e mustamirr) is the opposite of what the Sunnis did in the 2nd century by which they closed the doors to ijtihād and considered it no longer possible. We the Shī’ī pride ourselves that this door has always remained open for us.

One of the most pressing issues which we are facing is the need to understand the global situation we are living in. Keeping in mind that we are living in the city of Ijtihād, the city of Qom, the pivotal question is what are we doing to solve the problems brought about in this contemporary era and what responsibilities do we have? If you look back 50 years, you’ll immediately notice a number of things have changed. Firstly, we now live in a country in which the foundation of its government, its rulings, its systems and organisations were given to a faqīh, a mujtahid. Not only was this government formed by the edicts of a mujtahid but all the sensitive and critical governmental posts and positions across the country are in the hands of mujtahids. This has a message and a wisdom behind it, that our fiqh can solve the problems this country faces, otherwise, why would these positions be given to mujtahids?

Secondly, we are living at a time where there has been an explosion of means of communication. We truly live in a global village. To give an example, right now as I am speaking, it’s highly possible someone at the other side of the world can hear exactly what I am saying, every sentence and every word. It’s no longer possible to live in a secluded manner cut off from everyone else where our sayings, views, opinions can be kept hidden. For example, if you go back dozens of years, if a follower of Ayatollah Zanjāni wanted to find out a ruling, he would have to send a letter, or perhaps come himself to his office and wait and speak to someone about it, and this would take a long time and a lot of effort. But now it isn’t like that, everything is available online and whatever you want is at the tips of your fingers.

Now looking at this situation where we have fuqahā in key positions and living in an era of transparency and information, how do we live and conduct ourselves in such a way that we hold on to the Sharī’a but at the same time we do not become a source of scorn and embarrassment for the Ahlulbayt and put our religion under question. To give you an example, if your followers ask you, or an Islamic country which is part of the international community, what is our responsibility towards the disbelievers, will you say that you always need to be armed and kill everyone you see? Of course, you wouldn’t! In today’s age what repercussions and consequences will these rulings have? How can Muslims even live in other countries if rulings like these are given? This is while we have had many fuqahā that have argued the responsibility of jihād remains similar to the responsibility of salāh, and regardless of time and place the disbelievers need to be fought.[1]

It’s within this context that I put forward the question, how do we do ijtihād? It’s after many years that I have come to this conclusion that we have been blessed with a legacy of ijtihād that has allowed us to stand independently in the international arena. Under no circumstances listen to those who say that this is not feasible, or that reaching the levels of ijtihād require this or require that. We need to be firm on this idea that we do not intend to remain as imitators (muqallid) but we want ourselves to reach ijtihād.

How many issues do we have that were considered finished by some scholars only to be reopened and revisited from the beginning by others? How many examples shall I give of this? I can give examples all the way till Fajr time! Did Shaykh Ansāri not revisit the works of Sāhib Jawāhir? Sāhib Jawāhir even insulted people who didn’t agree with himself,[2] like in the case of Wilāyat ul-Faqīh, whereas Shaykh re-looked at this issue and disagreed with him even though this was considered a closed chapter.[3]

The first thing we need to do is to look at every ruling that is considered to have been finished and no longer requiring any more work or research. We hold all of our scholars in complete respect and high esteem, the likes of Sāhib al-Jawāhir, Muhaqiq Karakī, Kāshif al-Ghitā, etc. but we want to become mujtahids ourselves and in order to do so we need to start from the beginning and not merely repeat everything ad verbatim and by extension close the doors of ijtihād. The first thing we should accept is the continuation of ijtihād, that we are no longer merely imitators and that there is no such thing as a ruling which has finished. My teacher would say that if we only had 1% of the new opinions that Allāmah Hillī had during his time, all our problems would be solved overnight. This is why we need new thinking fuqahā during this time.

[A discussion on the meaning of tafaqquh and the need to do tadabbur takes place after which a discussion on khabar wāhid begins]

When you look at the verse of the Qur’an (49:6) you can see the wisdom behind it. Don’t do something in ignorance that you will later regret. This is why we need to do research so that we do not issue rulings based on ignorance and later regret what we have done. In the discussion of solitary transmissions too much focus has been placed simply on the corruption (fisq) or reliability (‘adl) of the narrator. Even if someone is considered reliable, does that then necessitate he will not make a mistake and everything he narrates will be accurate? Or is the mentioning of corruption in this verse merely an example (rather than the only yardstick to judge the narrator)? My suggestion is that we look into this further and consider external factors in deciding whether a tradition was issued from the Infallibles or not.

Today psychologists have all accepted the role of conflicts of interest in the understanding and comprehension of events. Something we should begin to look and consider within these discussions is to see if there was a conflict of interest between the narrator and the event he was narrating, and to what extent such a conflict of interest is visible. This is not something strange, it is even present within our works of fiqh, for example when it comes to a judge (qādhi) there are certain times he is not recommended to pass rulings, like when he is hungry, or when he is tired.[4] Why? Because all of these instances make him act differently and they will cloud his judgement and lead to him issuing a verdict which he would later regret. A mujtahid needs to put all these conditions of the narrator under the microscope and not satisfy himself simply with ‘adl.

Ayatollah Khoi’i was a mountain of a scholar who needs no introduction, yet despite all of this I am left without words on his ruling where he allows slaves to be taken outside of war. In his Minhāj he discusses slavery and asks whether or not slaves can only be taken in instances of war or if they can also be taken in other circumstances.[5] Khoi’i bases his edict on a tradition by Rufā’a al-Nakhās who narrates from the 7th Imam:

“The Romans have raided the Slavs and are abducting their children – both girls and boys – they then castrate them, christen them then send them to Baghdad (as slaves) to be traded. What is your view on its permissibility while knowing they were abducted outside of any war (taking place) between them. The Imam replied: There is no issue, they have been taken from polytheism to dār al-islām.” [6]

First of all where did this ruling come from?! What’s the consequence of this? Where did Khoi’ī’s followers live? And how is this not explicit support for human trafficking? Any disbeliever, lady, child, doesn’t matter, you can abduct them, take them out of polytheism and send them to dār al-Islām! If the world knew about this ruling they wouldn’t dare give us visas! We mentioned at the beginning we are living in a time of global communication, global advancement, we can’t take slaves, period! Even if we accept the idea of spoils of war, they are to be treated as prisoners of war and not to be taken as slaves – there’s a big difference between these two notions. What’s even more interesting is when I discussed this with Ayatullah Shubayr Zanjāni, he mentioned to me that almost everything this narrator talks about is slavery! It seems like he was a slave-seller himself and understood what the Imām said in a way that benefited him, or what we would say in today’s terminology, it seems like there was a conflict of interest at play. This is just one of the conclusions we are facing due to the acceptance of solitary transmitted traditions on the mere basis of fisq and ‘adl.

[The discussion continued on Shahīd Thāni’s rulings on how enjoining good and forbidding evil fail to apply when a person fears harm for himself even to the extent of his reputation. After this a heated exchange took place between Muhaqiq Dāmād and members of the audience on slavery, whether it is an essential property of Islam or an accidental one, and whether slavery in itself is inherently immoral (qubh e zāti)]


1 – Reference is being made to the various rulings given by fuqahā on the obligation of jihād al-Ibtidā’i (offensive war). Refer to Mabsῡt of Shaykh Tῡsi, v. 2, p. 10, Qawā’id ul-Ahkām of Allāmah Hillī, v. 1, p. 477 and Jawāhir al-Kalām of Shaykh Najafī, v. 21, p. 49.

2 – Jawāhir al-Kalām of Shaykh Najafī v. 21, p. 397

3 – Makāsib of Shaykh Ansāri, p. 155

4 – For example, refer to Risala ‘amaliyya of Ayatollah Bayāt Zanjāni, ruling 3495.

5 – Minhāj al-Sālihīn of Ayatollah Khoi’i, v. 1, p. 374

6 – Tahdhīb al-Ahkām of Shaykh Tῡsi, v. 6, p. 162

Leave a Comment

This site uses Akismet to reduce spam. Learn how your comment data is processed.