Transcribed and translated by Syed Ali Imran (Canada)
These are transcriptions of lessons 63 to 68 held between December 31st, 2019 to January 8th 2020 in Qom, given by Shaykh Haider Hobollah. These are from the khārij of Uṣūl al-Fiqh on the topic of Maqāṣid al-Sharī‘ah. For a more detailed elaboration of this discussion, please refer to the published book al-Ijtihād al-Maqāṣidī wa al-Manāṭī, vol. 1, pgs. 375 – 415.
The phrase madhāq al-sharī‘ah does not exist in any classical Shī‘ī works on legal theory or jurisprudence, and the earliest work mentioning such a phrase is the book al-Jawāhir. In fact, this term does not even seem to exist amongst the Ahl al-Sunnah. The teacher of Ṣāḥib al-Jawāhir in his Miftāḥ al-Kirāmah uses the term madhāq al-aṣḥāb (taste of the companions), but this is not the same as the taste of the Sharī‘ah. Another contemporary of Ṣāḥib al-Jawāhir, Shaykh ‘Alī Kāshif al-Ghiṭā’ seems to use similar words to madhāq al-Sharī‘ah and perhaps he was influenced by Ṣāḥib al-Jawāhir. As for Ṣāḥib al-Jawāhir, there are too many examples in his work where he uses this term and its derivative. Below are a few of those cases:
يستفاد مطلوبيته ورجحانه من ممارسته مذاق الشرع وإن لم يرد به دليل بالخصوص
لا التزام البطلان مع القول بالطهارة الذي هو في غاية البعد عن مذاق قواعد الشريعة
بل الأخذ بإطلاق النصوص المزبورة يقتضي إثبات أحكام غريبة يقطع الفقيه بخروجها عن مذاق الفقه وبعد التزام الأصحاب به
بل ادعى أولهما الإجماع عليه ولكن هو كما ترى بعيد عن مذاق الشرع ضرورة منافاته لمصلحة الزوج والزوجة بلا أمد ينتظر.
ولا ينبغي لمن رزقه الله معرفة مذاق الشرع أن يحتمل ذلك فضلا عن أن يكون فتوى وخصوصا بعد معلومية عقد المتعة بالموت
ومصرفه الصدقة به عنه كغيره من المال المتعذر وصوله إلى صاحبه. مضافا إلى استغنائه عليهالسلام وشدة حاجة شيعته الذين قد تحملوا ما تحملوا في جنبه وإلى ما في حفظه له من التعريض بتلفه واستيلاء الجائرين عليه بل كان ذلك من الخرافات نحو ما قيل في باب الخمس من طرح حقه في البحر ونحو ذلك مما لا يقبله مذاق فقه ولو أعرضنا عن أخبار التحليل لكان الفحوى القطعية كافية في صرفه في أمثال ذلك
The question is, what did Ṣāḥib al-Jawāhir intend by this phrase? Was he referring to induction, al-qiyās al-awlawīyyah (a fortiori), or something else? After Ṣāḥib al-Jawāhir we have many cases where scholars used this term. Just to mention a few:
- Shaykh Ḥusayn al-Ḥillī in his Dalīl al-‘Urwah al-Wuthqasays: There is no evidence for saying it is prohibited to give impure food to someone who is ignorant to eat, as it is not an instance of ta’āwun ‘ala al-ithm(aiding someone in sinning), but you are not allowed to do this for alcohol. The reason he gives for this exception is the madhāq al-shāri’ which considers alcohol to be something meant to be avoided and refrained from at all costs, such that there should be no contact with it at all. This idea of madhāq is clearly coming from the severity against alcohol in the Islamic textual tradition.
- Interestingly, Sayyid Khū‘ī says the exact opposite of Shaykh Ḥusayn, claiming it is prohibited to give someone impure food who is ignorant of it, citing madhāq as evidence:
لما كان بيع الدهن المتنجس من المسلم قد يوجب إلقاءا له في الحرام الواقعي حكم بحرمته في الشريعة المقدسة فانه يستفاد من مذاق الشارع حرمة إلقاء الغير في الحرام الواقعي
Sayyid Khū’ī also famously argues women cannot become a Marja‘ by citing madhāq as evidence.
- Shaykh Faḍlullah Nūrī in his discussion on ḍamān al-yaddsays in the case that a trust (amānah) is something shar’ī and not a personal matter, if the trust is ruined, the person safeguarding the trust is not responsible for the damage. This is because:
فإن المسالة في كمال الغموض والاشكال فإني لم أجد ما يدل على أن استيمان الشارع كاستيمان المالك إلا أن مذاق الشرع يقضي بذلك
- Muḥāqqiq Arākī in his discussion on zakāt al-fiṭrah says the Zakāt should be given to the jurist because he is most deserving of it than one’s family and he cites madhāq as evidence for it.
- Imam Khumaynī mentions madhāq in a number of places. For example in his discussion on dissimulation, he says if someone asks a person to destroy the Ka‘ba or else they will be killed, the principles of Lā Ḍarar cannot apply and nor the principle of dissimulation, because the madhāq al-shar‘ suggests these matters are far more sacred and important than one’s life.
فإنّ القول بحكومة نفي الحرج أو الضرر و غيرهما على أدلّتها- بمجرّد تحقّق عنوان الحرج و الاضطرار و الإكراه و الضرر و التقيّة بعيدٌ عن مذاق الشرع غايته.
He also says1:
لا شبهة في حرمة تصوير الأصنام للعبادة بها و بقاء آثار السلف الفاجر من غير فرق بين المجسمة وغيرها ولا بين الايجاد التسبيبي والمباشري ولا بين صور الروحانيين وغيرها ولا الحيوان وغيره فلو عمل صورة بعض أرباب الأنواع المتوهمة التي كانت مورد تعبدهم أو صورة شجرة كذائية : كان حراما مطلقا ولا يجوز ابقائها واقتنائها وذلك لما نعلم من مذاق الشارع الأقدس أنه لا يرضى ببقاء آثار الكفر والشرك للتعظيم أو لحب بقاء آثارهما والفخر بها كما ترى من بعض أولاد الفرس من الحرص على ابقاء الآثار القديمة المربوطة بالمجوس وعبدة النيران
In this ruling, Imam Khumaynī argues for the destruction and demolishing of statues, idols, paintings, or anything that was seen as an object of veneration and worship, based on the madhāq al-shar‘, which is not content with the remnants of disbelief and polytheism, whether one wants to keep these objects out of respect, or due to one feeling proud of their heritage (the example he cites is of some Persians who are adamant in preserving and keeping old remnants of the Zoroastrians, or their fire temples).
- Shaykh Kāshif al-Ghiṭā’ says:
لعلّ في إعطائهم [من الزكاة] تعطيل للأيدي العاملة وترويج للبطالة ولعلّه من أعظم المحرّمات لمن يعرف ذوق الشارع الحكيم وحكمة الأحكام
- Shahīd Ṣadr also has examples and says Iḥtiyāṭ cannot be the recourse principle due to madhāq; in fact, this is how he nullifies one of the possibilities in Insidād as well. Though in his al-Ḥalaqāṭ he defines Qiyās in a way where he says one of the sources of it is madhāq.
- Shaykh Bāqir Īrwānī says there is no evidence for ḥurmah of looking at a picture of a woman in a lustful way that leads to ejaculating, however, he considers it prohibited based on the madhāq al-sḥāri‘.
As for the terms rūḥ al-Qurān or rūḥ al-Sharī‘ah, these terms are used even less frequently by the jurists in their discussions. All in all, we need to see what exactly madhāq is and what is its role in ijtihād? As per our analysis, we find the term being used in two meanings:
1) A foundation (mabnā’) and presumptions regarding anything. For example, the scholars may say that a certain ruling fits within the madhāq of the Ahl al-Sunnah, or the popular view, or the author, or the Uṣūlīs, the Akhbārīs, the ‘Urafā, the Ashā‘ira, the philosophers etc. This meaning does not concern us in our discussion related to ijtihād.
2) Propositions that are obvious, clear, and certain, but are not proven with a piece of evidence towards which a jurist can point his finger on and show us. This is the meaning that concerns us.
As per this second meaning and the way it is used, we realize that if there is no explicit evidence for something, then before resorting to the principle of barā’ah or iḥtiyāt or any other procedural principle, one should refer to the madhāq, as it is being used as an al-adillah al-muḥrizah.
Role of Madhāq in Ijtihād
1) Deriving an independent law or negating an independent law. In other words, a jurist can prove or disprove a law through madhāq. We gave many examples for this, but consider one more by Sayyid Sabzwārī. He says there is no textual evidence for stating that the limbs need to be ṭāhir before wuḍū, but that they still need to be ṭāhir – the evidence for which is madhāq al-sharī‘ah and irtikāz of jurists.
In another example, many jurists say that in the case of finding the most learned jurist (a‘lam), we may know five jurists are equally learned, or are unable to determine who is the most learned out of these five, in which case a person must follow the one who is more precautious. Sayyid al-Ḥakīm says this will result in too much precaution and that is going to cause extreme difficulty (ḥaraj) and all of this is against madhāq al-sharī‘ which wants ease (tashīl). A layman went to taqlīd so they did not have to do iḥtiyāt, and in this case, this taqlīd is resulting in the same situation. Hence, Sayyid al-Ḥakīm says one must resort to takhyīr.
Shaykh Ṭabrīzī uses madhāq to nullify a ḥukm. Consider Zayd is accused of theft and everything is proven for the judge, and he needs to give the ḥukm of theft, but Zayd is not present in court. The police need to go and bring Zayd in order to apply the ḥadd. However, Shaykh Ṭabrīzī says Zayd needs to be present in the court if ḥadd is the verdict, but not in other cases like if the verdict is just to pay compensation. His evidence is madhāq which exists in the ḥadd of zinā, through which we know Zayd needs to be in court so he can at least defend himself. This is the criterion because there is a lot of caution in applying the ḥadd.
Someone can say this is all qiyās, or someone can say it is munāsabāt al-ḥukm wa al-mawḍū‘.
2) Madhāq can be used to apply a ḥukm shar‘ī at another place. For example, we find a body part of a dead person. Muḥāqqiq Hamadānī says it is known that the Shāri‘ does not require us to pray on someone who is ghayr muḥtaram and it is also not obligatory to bury them. In the case that we find a random body piece of a person, it is also not necessary to pray on it. Someone can say this is pure qiyās, but Muḥāqqiq Hamadānī is saying this is known with certainty, because of madhāq al-shar‘.
3) Establishing a subject matter (mawḍū‘) of a ḥukm. We have an issue in al-‘Urwah which says if two sisters or one of them is born out of wedlock (zinā), can you marry them both or not (given it is not allowed for a man to marry two sisters)? Based on certain principles this marriage should be allowed because zinā was known to break all genealogical family relationships (nasab). This is particularly true for jurists before Sayyid Khū’ī, as Sayyid Khū’ī severely attacked this understanding. In other words, if two girls are born to the same mother and father, but one of them was born out of wedlock (or even both of them), the one born out of wedlock is not the “sister” of the other girl, as per Islamic law. If that is the case, then a man should be allowed to marry both these girls. However, the author of al-‘Urwah says as an obligatory precaution it is not allowed to marry them.
Sayyid Muḥsin al-Ḥakīm says in his comments on al-‘Urwah under this obligatory precaution that the precaution is not consistent with what these jurists believe regarding there being no nasab between these two sisters. However, both him and Sayyid Khū’ī will use madhāq al-shar‘ to argue that the relationship of sisters being intended in this ruling is based on custom (‘urf).
4) Restriction (taqyīd) of Iṭlāq: Some narrations may be apparent in a certain absolute meaning, but jurists may use madhāq to restrict their generic and absolute meanings. As mentioned earlier, Imam Khumaynī in his discussion on taqīyyah and ḥāraj excludes certain actions based on madhāq. In the discussions concerning the application of punishment with whips, the rulings say that the person should be stripped. However, jurists do not apply this ruling if the person being whipped is a woman, because the madhāq of the religion tells us that she is to be covered.
5) Certain scholars who believe one or two solitary reports are not enough to overpower sīrah al-‘uqalā, they do believe in overpowering and dismissing this sīrah with madhāq.
6) Madhāq can be used in discussions where there is a conflict of two important justified criteria (tazāhum al-milākī). For example, most jurists believed it is not allowed to give or sell the Quran to non-Muslims, but Imam Khumaynī rejected this opinion citing madhāq al-sharī‘ah. He says this is against the criterion of propagating (tablīgh) the religion and that this is why the Prophet (p) sent letters to leaders of the world at the time, that included verses of the Quran.2
Likewise, Muḥaqqiq ‘Arākī in his discussion on ijtimā‘ al-amr wa al-nahī says that the harm (mafasada) of usurping is more severe than the benefits of the obligation of prayers because human rights (ḥuqūq al-nās) are more important than rights of Allah (ḥuqūq allah), as per madhāq al-shar‘ itself.
HOW IS MADHĀQ AL-SHARĪ’AH ACQUIRED?
In order to establish the probativity (ḥujjīyyah) of madhāq, we first need to see how one even acquires madhāq. Only then can we determine whether it is ḥujjah or not:
1) Induction (istiqrā’) is the most important way to attain madhāq. You spend years with books, words, statements, and so on, and you get a “feel” of an individual. This is similar to if you study any intellectual today and go through their books, you get a “feel” of their ideas and positions.
An example of this is when Sayyid Khū’ī says, look at the traditions and laws of Islam and you will understand the expected role of a woman. Based on this we can prove that the sharī‘ah does not want her to be a marja‘.
Or for example, procurers (colloquially: pimps) are to be punished by having their hair shaved, made to walk around town, and then they are exiled. However, what if the procurer is a female? Sayyid Gulpaygānī says none of these punishments are applied on women because of madhāq al-shāri‘ which says her remaining covered and concealed is more important.
There are other phrases also found in the books of jurists, which are just another way to referring to induction:
- a) Habit of the Sharī‘ah (‘ādah, aghlab, akthar) – this is a type of induction. Some say the Sharī‘ah accepts two women testimonies, but what about cases where only women can testify and no men. ‘Allāmah Ḥillī says, since the idea that one man equals two womenis from the habit of the shari‘ah, in cases where only women can testify, you need four women. Its habit is one equals two, so in cases where two men are required, you need four women to testify in equivalent cases.
- b) Practice of the Shar’ (daydan al-shar‘)– Muḥaqqiq Lārī in his comments on al-Makāṣibsays the fundamental premise (aṣl) is not that one has to compensate for something with its like (mithl) rather in the value (qīmah) of a product (ḍaman bil-qīmah, not ḍaman bil-mithl). He says the value is closer to having a criterion (ḍābiṭ) than bringing a mithl (since it is difficult to give an exact identical product to someone, even in terms of coins). He says it is from the daydan al-shāri‘ to make the criterion of things that are more structured, more precise, and more consistent – aḍbaṭ.
- c) The Way of the Shar‘ (ṭarīq al-shar‘) – this is also similar to daydan al-shar‘.
One of the biggest shortcomings in using induction is that, many great scholars believe the Sharī‘ah has no coherency. In fact, that was one of the main arguments against the use of qiyas. There are many places in Islamic law that are similar, yet the law is totally different, and if that is the case, how can you apply madhāq in these cases?
2) Awlawīyyah – a jurist looks at some instances and sees that the Sharī‘ah is very concerned with it, then in a place where there is no naṣṣ, you apply the extent of that concern and say the Sharī‘ah is concerned with these issues, and in this case, the concern is even greater so it would have the same ḥukm. For example in the conditions of a Marja‘, Sayyid Khū’ī says from the madhāq al-shāri‘ we know that a woman cannot lead men in prayers, or lead them; he is essentially saying that if women cannot even do that, how can they be in a position of irjā‘?
Another example where Sayyid Khū’ī uses madhāq and awlawīyyah is in Kitāb al-Ṣiyām. There is an issue that if someone breaks fast with something ḥarām, there are two penalties (kaffārah) together. What do you do in a case where one kaffārah cannot be applied, like emancipation (‘itq), does that mean both the kaffārah are dropped? Some may say yes, but Sayyid Khū’ī says based on madhāq al-shar‘ we cannot say the kaffārah is dropped in this case, because that would necessitate that ifṭār with ḥarām is easier than ifṭār with ḥalal since the latter has one kaffārah and the former would mean there is no kaffārah.
3) Nafī al-Lawāzim – this is similar to those who fear the problem of “new fiqh”, as it says if this ḥukm is not established, it will have certain consequences which we cannot agree with. Sayyid Muḥsin al-Ḥakim in his comments on al-‘Urwah says Zakāt is applied on Dirham and Dinar if it is pure gold and silver. If I have 50 Dinar but I do not know which one of these is pure gold and which have gold mixed with other materials. What do we do in this doubt when we do not know the niṣāb (the minimum amount before being obliged to pay Zakāt)? Is it necessary to test (ikhtibār) them, for example, by melting it all and seeing what percentage is not pure? Sayyid Yazdī says there is iḥtiyāṭ mustaḥabb to do ikhtibār, but Sayyid al-Ḥakīm says if ikhtibār is not obligatory, that will result in a lot of negative consequences because people will keep saying we do not know how much of it is pure gold, and people will stop paying any Zakāṭ. From the necessary consequence (lāzim) we uncover the ḥukm.
Ṣāḥib al-Jawāhir has a similar discussion where he argues whether it is necessary for a person to determine whether something is obligatory upon them or not. He says if it was not obligatory on a person to determine their duty, that would mean a lot of people would not fulfill their obligatory acts.
In the discussions on khiyār al-ghaban (option of price, when a commodity is sold extremely overpriced), the question is whether every difference in price results in granting the consumer an option to nullify the transaction or is it only when the price difference is severe? Sayyid Khumaynī says a small amount of difference cannot give a consumer khiyār al-ghaban, rather it has to be severe as per local customs. He says if the difference is small, such differences are very common in any transaction, where the market price may be slightly different to what the seller prices it at and people do not consider it to be a deceptive transaction where a person was cheated. If these small differences were also included in khiyār al-ghaban, almost all transactions would become khiyārī, as many transactions have some small extent of differences. However, this alternative is invalidated due to customs and also madhāq al-shār‘.
MASLAK AL-MADHĀQ & RŪḤ AND OTHER SIMILAR TERMS
What is the difference between madhāq, maqāṣid or istiḥsān? There is no doubt that there is some relationship between madhāq and maqāṣid; for example, they both rely on istiqrā’, both try to look at criteria (milākāt) in certain cases, etc. but there are some differences as well:
Madhāq is not mentioned – historically speaking – in any work of legal theory, whereas Maqāṣid has existed historically as a systemized theory. When talking about decorating the mosque with gold, Muḥaqqiq Hamadānī says some jurists believe it is ḥarām due to extravagance (isrāf), or it is an innovation (bid‘ah) etc. He comments on this and says, if people see a purpose in these decorations, such as them being out of respect for these sacred places (ta‘ẓīm al-sha‘ā’ir) then there is no problem with it.
Then, he wonders why jurists tried to outlaw decorations with such weak arguments? Perhaps it is because that the ḥukm was simply taken for granted by these jurists due to madhāq al-shāri‘ regarding the function of a mosque, which is meant to be very simple, or because the ruling existed at the beginning of Islam and was inherited down. However, these jurists did not want to simply mention the ruling on this without offering some sort of argument for it, and while doing that, they offered whatever they could, hence why some of the arguments are really weak. In other words, jurists did not just want to say madhāq al-shar‘ as their evidence, they had to offer some clear criteria for other jurists to understand.
This is perhaps why Shaykh Īrwānī in his work al-Tajdīr does not like to use the word madhāq and says one should not use this jargon, because it will lead to severe negative consequences.
Furthermore, in Maqāṣid you have a general category (‘unwān), such as ‘protection of lives’, and they then result in aḥkām which can be altered as long as they fulfill the respective category of the objective of the Shari‘ah. However, in madhāq, a jurist tries to understand general shar‘ī universals and these do not change since they are ultimately aḥkām kullī.
Another question we can ask is, what is the difference between madhāq and irtikāz al-mutasharri‘? When Sayyid Khū’ī discusses conditions of marja‘, he uses the word madhāq and irtikāz, but did he mean two different things or was this a case of ‘aṭf bayān? Someone can say irtikāz is nothing but one’s personal dhawq al-sharī‘ah. Or someone can say madhāq is ijtihādī, whereas irtikāz is an emotional perception. Or irtikāz must be connected to the time of an infallible, whereas madhāq does not have to be like that.
Regardless of how one decides to define and differentiate between these two concepts, some – not all – irtikāz definitely originate from madhāq and istiqrā’.
A final thing that has to be differentiated is madhāq and istiḥsān as understood by the Sunnis. We discussed last year that some Sunni jurists accept istiḥsān, but many others do not – in fact, they themselves have differences of opinion on its definition. One of the definitions of istiḥsān has the same meaning of madhāq. Ghazālī says one of the definitions is:
dalīlun yanqadih fi nafs al-mujtahid, la tusā‘iduhu al-‘ibārah minhu
If this definition is not madhāq, then at the very least it is inclusive of madhāq.
The first person to see a similarity between these two was Sayyid Muḥammad Taqī al-Ḥakīm. Ghazālī and the Shāfi’īs, in general, say all of this is hawas, because if one cannot convey something in words, there is no way to tell if it is correct or not, if it is ḥāqq or hawas or khiyāl or wahm. This is very strange, because this is generally the same critique made against the mutaṣawwifah, and Ghazālī is one of them.
In response, Maliki scholars like al-Qurtubī critiqued Ghazalī, and said, you expect us to find you an exact statement from the religious texts that is in accordance with a ḥukm, but I have a series of contextual indicators (qarā’in), put together, whose conclusion is not necessarily going to be in accordance with one specific narration or verse. The istiqrā’ results in a conclusion whose statement will differ from what is present in the sources.
In conclusion, we say madhāq at the very least is the same as one of the definitions of istiḥsān – and the Imamis can say we only accept it if it is qaṭ‘ī, not ẓannī. However, we can say this definition of istiḥsān can be beneficial even if it is ẓannī as per Imamis, not in proving a ḥukm shar‘ī, but it can negate the iṭlāq and ‘umūm as ḥujjīyyah al-ẓuhūr is based on ṭarīqīyyah. If there is a text that has iṭlāq, but one attains ẓann that says the Shāri‘ could not have intended this instance, then it negates the iṭlāq of that text.
ḤUJJĪYYAH OF MADHĀQ AL-SHARĪ’AH
A jurist can say madhāq al-shar’ is not ḥujjah since it is ẓannī, but an Insidādī can say madhāq is ḥujjah, unless they say consider it to be a qiyās. Furthermore, it is important to note we are not talking about conclusions and final religious verdicts, rather we are talking about the actual process and procedure.
We have to answer the following 5 questions to understand the process before we can determine whether it is ḥujjah or not:
1) Is madhāq al-shar‘ an istidlālī process that differs from all other istidlālī processes (like Kitab, sunnah, al-maṣāliḥ al-mursalah, ijmā‘ etc.)?
2) If it is the same and originates in one of the processes, then how does it originate in that process? For example, if it is Kitab, then how is it so? If it does not originate in anything, and it is an independent source, then how so?
3) Is madhāq al-shar’ really a source (maṣdar) for ijtihād, or is it just a certain type of understanding of the religious texts, just like how language is a tool that helps you understand the text, madhāq is also the same. If it is a hermeneutical tool, then explain the answer.
4) What guarantees that madhāq results in certainty and that it has a process that can be evaluated and judged? What guarantees that not everyone can claim madhāq for their opinions and that it is not something personal or based on delusion and so on?
5) Is it permissible that jurists have relied on madhāq for over 2 centuries all over their works, without it ever having one Uṣūlī discussion on it? This is a rhetorical question, and its answer is that the scholars should have definitely discussed this concept, before using it to this extent in their books of Fiqh.
We believe madhāq al-shar‘ is nothing but an exegetical process of understanding texts and not an independent source of deriving law, alongside the Kitab and Sunnah. This hermeneutical process is a combination of both a colloquial and customary understanding of the texts, with induction, and one’s understanding will depend on how exhaustive their induction is and how equipped they are with understanding the religious texts in its appropriate way. Their probativity goes back to ḥujjīyyah al-yaqīn or ḥujjiyyah of fahm ‘urfī, and it can be placed under Kitab, Sunnah or al-‘aql al-naẓarī.
For example, Shaykh Ansari says when we look at all the narrations, we see that they tell us not to engage in vain acts, to not be alone with a strange woman, to not sit on the seat where a woman had sat until the seat has cooled down, for Muslim women to be covered in front of female ahl al-dhimma as they may describe these women to their husbands, and many other similar traditions. All of these narrations put together tell us that a known respected Muslim woman – especially a married woman – should not be described in a way to others by which they may be seduced. This is what the madhāq of the sharī‘ah tells us.3
However, this derivation has several conditions:
- a) Madhāq has to occur with a lot of contextual indicators put together, not just a few traditions.
- b) This number of contextual indicators should have the capacity to result in a universal principle. For example, the ruling of not sitting on a warm seat does not have the same probability of resulting in a universal principle as – for example – narrations on satr al-‘awrah for a woman.
- c) There should not be contrary religious texts, irtikāz ‘urfi, ‘uqalāyī, or ‘aqlīthat can prevent us from reaching that principle. For example, Sayyid Khū’ī says only men can be a marja‘ because madhāq al-shar’ tells us that a woman has to be at home. However, the issue is that the expectations that Islam has from women are all not obligatory (ghayr ilzāmī). Sayyid Khū’ī himself says she does not have to work, or remain at home, or breastfeed for free, or clean the house, he himself allows mixed gathering if it is not haram, etc. So how can he arrive at an ilzāmī (necessary) madhāq from ghayr ilzāmīindicators and laws?
Secondly, even if Khū’ī is correct then we should go all the way and prohibit women from participating in other matters too where they are in a position that others look up to them or refer to them, such as political positions, societal positions or becoming a journalist, etc. Why were these roles not out-lawed by Sayyid Khū’ī as per madhāq of the shar’, but restricted just to the role of a marja‘?
- d) The contextual clues and indicators put together should give us wuthūq al-ṣuḍūr.
- e) The conclusion derived from the madhāq should not result in consequences (lawāzim) that we know are false and invalid with certainty.
Some have rejected the concept of madhāq al-shar‘, like Shaykh ‘Alī Dūst in his book Fiqh wa ‘Urf. However, we say this is not valid, as per what we have explained in our discussions.
Kitāb al-Bay‘ v. 2, pg. 750
Al-Makāsib, vol. 1, pg. 178-180.