In the expansive domain of jurisprudential knowledge (Fiqh), we encounter three distinct currents:
The First Current: Traditional Jurisprudence
Generally referred to in colloquial discussions as “Traditional Jurisprudence” (Fiqh-e Sonnati), this current examines jurisprudential issues by typically analyzing those addressed in the past based on established norms it validates, presenting them with the exact same content and form as before.
This current maintains that issues must be inferred strictly in this manner. It harbors a sensitivity—predominantly negative—towards certain innovations and theorizations. It is less concerned with whether the derived ruling (Mustanbat) and outcome is effective or not, whether it provides pragmatic answers, whether it has incorporated the exigencies of time and place, or whether the derived ruling can be practically implemented in today’s complex world. In essence, this current believes that it is the people who must adapt themselves to the inferred rulings and outcomes, rather than the institution of jurisprudence seeking to accommodate the desires of the populace. Nevertheless, at first glance, this current remains highly observant in safeguarding the recognized norms, criteria, and established principles of jurisprudence.
The Second Current: Predetermined Outcomes and Rationalization
Described by some as the antithesis and polar opposite of the traditional current, this approach initially predetermines an outcome and result, which generally must be populist or widely appealing. It seeks alignment with contemporary ratifications, secular laws, bills, legislative commissions, and other domestic and international matters. In their own terminology, it must be “palatable”; meaning, it should be easily presentable and defensible on the global stage.
Subsequently, the proponents of this current attempt to find textual evidence for this predetermined outcome. If they find supporting evidence in Quranic verses and narrations (Ahadith), they rely upon it. If they do not, they subject the issue to rationalization, framing it as customary and reasonable (Uqala’i), and conclude the matter with the justification that jurisprudence and the Shari’ah ultimately cannot contradict the intellect, established rational conventions, or common custom. Along this trajectory, if they encounter a verse, narration, or jurisprudential necessity that contradicts their predetermined view, they easily rationalize it away, claiming, “This pertained only to times past.” In other words, they confine and restrict divine texts to a specific time and place.
For example, if they observe that retribution (Qisas) is deemed unacceptable today and a contrary global consensus has emerged, they argue, “Retribution was for that specific era.” Even though the Quran explicitly states, “And there is for you in retribution [a saving of] life, O you of understanding, that you may become righteous” [Quran 2:179], they argue, “This applies to an era where if one person was killed, ten people would be killed in retaliation. The Quran commands not to kill ten, but rather one; however, it does not mandate that one must necessarily be killed. Rather, retribution was, at a certain historical juncture, an instance of justice, and justice is time-bound. Today, it is no longer an instance of justice; hence, retribution should not be executed.” This is an existing paradigm subscribed to by a broad spectrum of individuals, even if they do not operate at the jurisprudential level of the jurists (Fuqaha). Nonetheless, it is a line of thought that can by no means be ignored.
The Third Current: The Path of Moderation and Comprehensive Ijtihad
A current that I term the current of moderation—the middle path, which is highly demanding, yet correct and indispensable. This refers to a current within the jurisprudential system that, on the one hand, is deeply concerned with efficacy and modernization. It ensures that the derived ruling aligns with scriptural evidence and the objectives of the Lawgiver (Maqasid al-Shari’ah), is consistent with the corpus of religious texts (Nauss), functions coherently within a system where its components interlock to form a clear puzzle, and can assert itself among other legal systems. It should be capable of state-building and society-building, easily acceptable to the public, and logically justifiable even from a secondary perspective. In short, it holds all these concerns simultaneously.
To avoid deviating from the correct boundary and true meaning of moderation, this third group must adhere to the recognized criteria of Ijtihad. It must not derive rulings outside the established frameworks of Ijtihad and the four authoritative sources of inference. In reality, it must discern what God intends and infer exactly that, rather than imposing a preconceived conclusion onto the scriptural texts. If a current or a jurist wishes to address both aspects concurrently, this current becomes the current of justice, correctness, and comprehensiveness—and naturally, it is an arduous path.
The Methodology of Understanding Contextual Exigencies
We believe this endeavor is feasible, but it requires a specific methodology. The path is that the jurist must first thoroughly comprehend the established norms of Ijtihad, master the principles of jurisprudence (Usul al-Fiqh), and have complete command over religious traditions, texts, Quranic verses, consensuses (Ijma’at), and jurisprudential necessities, while according them profound respect. In the terminology of the late Imam Khomeini (ra), they must “think in the manner of Jawahir” [referencing the rigorous methodology of Jawahir al-Kalam]; in his words, this means being methodical and technically rigorous.
On the other hand, in accordance with the famous directive of the Absolute Authority of the Age (may Allah hasten his reappearance), they must be thoroughly acquainted with “newly occurring events” (Hawadith al-Waqi’ah). When the Imam (aj) instructs, “In newly occurring events, refer to the jurists,” it signifies that if it is the duty of the people to refer to the jurists in emerging circumstances, it is correspondingly the duty of the jurists to master these emerging events, understand the subject matter, comprehend the ruling, and recognize the contextual exigencies. Otherwise, it is illogical for the people to be obligated to refer to them while the jurists are not obligated to study, examine, and research.
Thus, this approach requires a vast breadth of information, which cannot be acquired through one, two, five, or ten years of study. Rather, one must meticulously study and master all of these over thirty to forty years, while simultaneously considering the exigencies of time and place. Perhaps, in many instances, when someone truly understands these exigencies—we are not asserting that they produce a new text—their understanding of the existing text fundamentally transforms.
Of course, it must be noted that there are certain instances in jurisprudence where, although the content is immutable, the form of articulation, discussion, and presentation requires a contemporary re-examination. That is, an individual might re-examine the same traditional content through the lens of contemporary literature and existing doubts, presenting them to the academic community in accordance with modern exigencies.
It is possible for a ruling and its content, while being fundamentally Islamic, to encounter practical conflicts (Tazahumat) in its execution, which the jurist must take into account. As the Commander of the Faithful (a) states in a famous narration, “Do not execute the penal codes (Hudud) of a Muslim in the lands of disbelief, for his pride may drive him to join the disbelievers; wait, if he returns to the abode of Islam, execute the penalty, and if he does not, let him not be penalized.” Therefore, if the execution of a penal code would cause one person to distance himself from religion, its execution might be suspended. If masses of people were to leave the faith due to a ruling they cannot comprehend, can we logically proceed with its execution?
We must evaluate the domains of legislation and religious legitimacy alongside the domains of execution, weighing the overarching interests and detriments (Masalih and Mafasid) involved in implementation. A jurist who simultaneously considers the recognized criteria of Ijtihad and the exigencies of time and place; a jurist who accounts for contemporary literature and modern doubts; and a jurist who meticulously distinguishes the domain of legislation from the domain of execution—such a jurist will possess authentic and correct jurisprudence. This is a general principle, and it is with this very perspective that we have entered various domains of jurisprudence.
Notes
[1] Reference to Imam Khomeini’s directive to “think in the manner of Jawahir” pertains to the rigorous jurisprudential methodology of Jawahir al-Kalam.
[2] Contains a direct reference to Quran 2:179 regarding Qisas.
