By Haider Hobbollah
Transcribed and translated by Syed Ali Imran (Canada)
One of the classes I’m attending this year are lessons on legal theory focusing on Expediency (al-maṣlaḥa) and Purposes of Islamic Law (al-maqāṣid al-sharʿīyyah). These lessons are being delivered in Qom, by Shaykh Ḥaider Ḥobbollah. Over the first 50-odd lessons, a general outline of the discussion was covered, followed by an extensive discussion on the principle of laws being subordinate to benefits and harms, the principle of al-maṣāliḥ al-mursala and principle of al-sadd al-dharā’īʿ. As is the norm in adv
One of the classes I’m attending this year are lessons on legal theory focusing on Expediency (al-maṣlaḥa) and Purposes of Islamic Law (al-maqāṣid al-sharʿīyyah). These lessons are being delivered in Qom, by Shaykh Ḥaider Ḥobbollah. Over the first 50-odd lessons, a general outline of the discussion was covered, followed by an extensive discussion on the principle of laws being subordinate to benefits and harms, the principle of al-maṣāliḥ al-mursala and principle of al-sadd al-dharā’īʿ. As is the norm in advance classes, the teacher presents the issue, goes through the evidence put forth by proponents, analyzes them one by one, and presents critiques offered by other scholars, offers his own observations where necessary and concludes with his own opinion.
ance classes, the teacher presents the issue, goes through the evidence put forth by proponents, analyzes them one by one, and presents critiques offered by other scholars, offers his own observations where necessary and concludes with his own opinion.
The discussion that followed is the notion of prioritizing expediency over religious text (nuṣūṣ). From lesson 50 (December 10th, 2018) to 55 (December 17th, 2018) the view of Imām Najm al-Dīn al-Ṭūfī (673-716 AH/1276-1316 CE) was analyzed and 12 arguments against him by Sunnī scholars were discussed and critiqued. From lesson 56 (December 18th, 2018) onwards, a supplementary discussion was held on whether Imām Khomeinī’s views on expediency are the same as Imām Ṭūfī’s or are there any differences between the two.
Before addressing the question, a brief introduction regarding Imām Ṭūfī and his view may benefit the unfamiliar reader.
Imām Ṭūfī is famous for putting forth a unique theory regarding expediency where he chooses to prioritize it over all legal sources, including the Qurān, Ḥadīth and Ijmāʿ.[note]His complete discussion is found in his al-Taʿyīn fī Sharḥ al-Arbaʿīn, commentary on ḥadīth #32: Lā Ḍarar wa Lā Ḍirār.[/note] Due to the controversial nature of his theory, he was severely attacked and critiqued by later Sunnī jurists. Many accused him of belonging to different schools of thought, such as Ḥanbalī, Ashʿarī, Muʿtazalī, and even Shīʿī and Rāfiḍī – although popular opinion considers him to have been a Ḥanbalī.
It appears none of these labels are valid and one cannot attempt to read and understand Ṭūfī through the lens of any of these groups. Rather, Ṭūfī is to be seen as an independent scholar and personality, who had his own thoughts and ideas unique to him. Different ideas and implications of his views could have possibly been reconciled with views held by different schools of thought, yet this does not imply Ṭūfī himself claimed to belong to a specific school.
For further reading on Ṭūfī in English, consider reading al-Ṭūfī’s Concept of Maṣlaḥah: A Study in Islamic Legal Theory, written by Nazly Hanum Lubis. I want to point out something the author says on page 6:
There is also a great deal of evidence suggesting that al-Ṭūfī was a Ḥanbalī, not a Shīʿī. First of all, neither al-Ṭūfī’s name nor any titles of his works are to be found either in Aʿyān al- Shīʿah, the encyclopedia of the Imāms and ʿUlamā’ of the Shīʿīs, or in the book al-Dharīʿah ilā Taṣānīf al-Shīʿah. Had he been a Shīʿī, some mention of him would have been expected in these two sources.
While evidence suggesting he was a Ḥanbalī may or may not exist, I do want to point out that his name his mentioned in both Aʿyān al-Shīʿah and as well as al-Dharīʿah. In Aʿyān al-Shīʿah he appears as Najm al-Dīn Sulaymān b. ʿAbd al-Qawī b. Saʿīd b. al-Ṣafī – popularly known as Ibn Abī al-Ḥanbalī al-Ṭūfī.[note]Vol. 7, pg. 301.[/note] His work, al-ʿadhāb al-wāṣib ʿala arwāh al-nawāṣib is mentioned in al-Dharīʿah.[note]Entry #1560, vol. 15, pg. 240[/note]. It is not clear whether these authors mentioned them in their works because they believed he was an Imāmī Shī’ī or simply because he was accused of it, there is a possibility he could have been.
Imām Ṭūfī and Shī’ī Jurists
Yaḥya Muḥammad in his Fahm al-dīn wa al-wāqiʿ argues[note]Pgs. 109-113[/note] that Ṭufī’s understanding and his subsequent theory derived from the tradition of Lā Ḍarar[note]This is a famous Prophetic (p) tradition and has been used as a maxim in jurisprudence which states: harm may not be inflicted nor reciprocated.[/note] is unlike what Shīʿī jurists have interpreted it as. While Ṭufī establishes the basis of all jurisprudence on this tradition, hence allowing him to prefer expediency over other rulings at all times, according to Shīʿī scholars, if this were the case it would practically result in a completely new jurisprudence.[note]See Farāid al-Uṣūl, by Sh. Anṣārī, vol. 3, pg. 465 where he is citing a possible critique one could do if this narration were to be understood in this manner: بل لو بني على العمل بعموم هذه القاعدة حصل منه فقه جديد[/note]. The notion of ḍarar in Shīʿi thought generally indicates physical harm and has nothing to do with inexpediency necessarily. The opposite of ḍarar is manfaʿah, not maṣlaḥa. Therefore, the very foundation upon which Ṭufī builds his theory is not accepted by Imāmi jurists. In other words, there can be ḍarar in things that have maṣlaḥa, and as well as mafsada in things that have manfaʿah.[note]These terms are very difficult to translate correctly into English, especially today when the scope of benefits and harms are not limited to the material and physical, but includes psychological conditions. Otherwise, generally, ḍarar and manfaʿah are understood to be material benefits and harms, whereas maṣlaḥa and mafsada were more general. As an example, paying khumus can have financial ḍarar for a person, but there is maṣlaḥa in its obligation. On the contrary, there can be financial manfaʿah in charging interest, but there is enough mafsada in it for it to be considered prohibited.[note]
Since Ṭufī was raised in a Ḥanbalī environment, he attempts to bring the idea of expediency within the derivation process as a principle, whereas Shīʿī jurisprudence traditionally has not accepted such a principle. As a matter of fact, when there is no evidence for something, they will still not resort to what expediency dictates, rather Shīʿī jurists will resort to a procedural principle. In addition, Shīʿī jurists are adamant that religious texts can only be restricted with intellectual propositions that are known with certainty and these propositions are a handful discussed in legal theory under the topic of ghayr mustaqillāt ʿaqlīyyah.
In conclusion, Yaḥya argues that Ṭufī’s theory of expediency is very different than anything found in Shīʿī legal theory. There has been a very explicit rejection of expediency-based Ijtihād in Imāmī Shīʿī legal theory traditionally, let alone in the way Ṭufī explains it.
All of Yaḥya’s points are correct, and as a matter of fact an additional difference can also be added to the aforementioned details. Ṭufī believes in the probative force of speculation in determining expediency and applying it on a specific jurisprudential matter. On the contrary, if a Shīʿī jurist happens to be an Akhbārī, then they do not believe any speculation is ever probative, whereas the Uṣūlī jurists only allow a very specific set of speculation to be acted upon.
Yes, amongst the Uṣūlī jurists if someone is a proponent of al-insidād al-kabīr (the notion that the path to certainty with respects to Islamic law is closed), then they will accept the probative force of speculation in such a scenario. However, proponents of insidād were never really able to influence Shīʿī legal theory to the extent the Akhbārīs were able to. Most significant and influential proponents of insidād lived between 18th and 19th century.
Imām Ṭūfī and Imām Khomeinī
Yaḥya Muḥammad in his work then goes on to say that in the 20th century, Shīʿī legal theory and jurisprudence changed with the personality and scholarship of Imām Khomeinī.[note]Pgs. 113-116[/note] Imām Khomeinī, unlike any other Shīʿī jurist, accepted the idea of prioritizing expediency over religious texts, just like Ṭūfī. In fact, not only did Imām Khomeinī establish the idea of expediency in Imāmī ijtihād, but he even went on to put his theory to the test when he established an Islamic government in Iran. Ṭūfī on the other hand was not able to do anything practical with his theory, especially on a large governmental level. In the words of Muḥammad Ibrāhīm al-Jannātī, Imām Khomeinī was a proponent of a view within the very ijtihād process itself, that no previous Shīʿī jurist had ever held.
However, that being the case, is it correct to say Imām Ṭūfī and Imām Khomeinī held the exact same view?
As will be seen, Imām Khomeinī’s theory of expediency revolves strictly around the notion of governance and the Walī Amr.[note]In our context, this is a reference to a jurist who has legal authority to rule over a state.[/note] He believed that a Walī Amr can restrict and alter laws established through religious sources – be they obligatory, prohibited, or otherwise – through the concept of expediency. These restrictions or alterations to religious law become primary rulings themselves, and they are not defined as secondary rulings.[note]Secondary rulings are those where the law changes due to some secondary reason such as necessity, expediency, fear, harm etc. As an example, eating pork is prohibited as a primary ruling in Islam, however when one’s life is dependent on it, it will become obligatory as a secondary ruling.[/note]
For Imām Khomeinī, if the role of a Walī Amr was conditioned to first and secondary rulings, there would be no meaning to his authority and governance. Hence, he believed expediency with respects to the state had priority over everything, including acts of worship. This is something which even Imām Ṭūfī did not argue for, given his theory did not allow a jurist to use expediency to alter rulings dealing with acts of worship.
More interestingly, given Shīʿī ijtihād was not accustomed to such an idea, it is clear through some of Imām Khomeinī’s writings that he was trying to change the mind-set of the jurists, particularly near the end of his life. This can be seen in how he introduces and emphasizes the concept of expediency in jurisprudence and its close relationship with the notion of time & place.[note]In a recent debate between Muḥammad Hidāyatī and Muḥammad ʿĀlim-Zādeh, which took place on the 16th of December 2018, in Khāneh Akhlāq located in Qom, Hidāyatī while stressing on a similar point, suggests that had Imām Khomeinī seen the current state of jurisprudence today, he may had wished he had never brought a revolution. This is because after the death of Imām Khomeinī, the notion of time & place was never fully allowed to become a part and parcel of mainstream Shīʿī ijtihād. The audio file of the debate can be accessed here (see 1:36:00 mark).[/note]
Just a few examples where expediency was preferred over what can be derived through religious sources within Shīʿī jurisprudence are as follows:
– Allowing a non-jurist who is simply aware of the law to be a judge in a court
– Prohibiting and regulating the use and access of public resources (anfāl) to citizens[note]This topic would require a lengthy article of its own. As per Shīʿī theology, the anfāl are things that belongs to the Prophet (p) or the infallible Imams (a). In this context, this includes all land and its natural resources as well. However, during the occultation, as per a number of very clear traditions, these resources have been made permissible for all Shīʿa. Therefore, the dilemma here is that if a jurist were to come and restrict or regulate these resources, such as natural parks, jungles, mountains, rivers etc. then they would be going against what the infallible Imāms had made permissible for their followers.[/note]
– Permitting the sale of weapons to the enemies of religion if it helps the economy and results in an overall benefit for the Muslims
– The prohibition of buying & selling drugs, carrying firearms and smuggling prohibited goods
– The legislation of certain mandatory conditions within a marriage contract
– The right to demolish homes and mosques that obstruct the construction of roads and pathways
Given all this, there are three propositions to be aware of.
1) Logical Relationship Between the Overall Views of Both Scholars
The logical relationship between the views of both scholars is that they partially overlap (ʿumūm wa khuṣūṣ min wajh). Meaning they are not completely equal, nor are they completely different. Reason for their difference is that Ṭūfī believes his principle is the basis of deriving all religious laws and that this principle can be used by any jurist to derive a ruling. Khomeinī on the other hand is strictly speaking about a jurist who has authority as a ruler of a state. Nowhere does Ṭūfī talk about expediency in relation to the state, whereas Khomeinī speaks about prioritizing it over both first and secondary rulings in a political context.
The second difference is that Imām Ṭūfī believes a jurist cannot apply this principle to alter acts of worship, even though he admits laws of worship are also based on the same principle. However, since acts of worship are the rights of Allah (swt), Ṭufī believes a jurist has no right to apply the prioritize expediency over here. Imām Khomeinī on the other hand believes a Walī Amr can even alter the rulings of acts of worship when it is for the well-being of the state.
2) Logical Relationship Between the Core View of Both Scholars
At the core, both their views overlap completely. Both scholars believe that expediency can be prioritized over religious texts (nuṣūṣ). While Imām Khomeinī used terms like taqdīm al-maṣlaḥa or ḥukūmah al-maṣlaḥa to make his point, Ṭufī used terms such as takhṣīṣ or taqyīd.
3) Perspective of Both Scholars in Arriving At their Conclusions
Imām Ṭūfī uses the tradition of Lā Ḍarar and the principle of laws being subordinate to benefits and harm to arrive at his conclusion. This approach is unseen in the works of Imām Khomeinī. In his work on the principle of Lā Ḍarar one can see that it has absolutely nothing to do with how Ṭūfī ends up using this tradition.If that is the case, then how did Imām Khomeinī arrive at his conclusion? What perspective was he taking? Unfortunately, Imām Khomeinī was not able to express or write down academic arguments for his conclusions and all of what we have specifically on this topic is from the near the of his life and in the form of formal letters or talks. These limited resources are all we have to essentially understand his perspective, and all of these can be found in his Ṣaḥifa.
In an official letter where he first requests the formation of an Expediency Council, he concludes:Dear addressees, please note that the expediency of the system is from those important matters where heedlessness towards it can result in the defeat of Islam. Today, the world views the Islam of the Islamic Republic as a stand-alone solution to their problems. The expediency of the system and people are from those crucial matters where resisting it can cause the Islam of the barefoot people[note]In Farsi, this is a general reference to lower-class people.[/note] of earth in the distant and near future to come into jeopardy, and the arrogant American Islam with the backing of billions of dollars through internal and external sources to be victorious. I ask God Almighty to help the men at this critical stage.[note]Tashkīl Majma’ Tashkhīṣ Maṣliḥat-i Niẓām – a letter to government officials regarding the formation of an expediency council. Written on 17th Jamādi al-Ūlā, 1408 AH / Saturday 6th February, 1988.[/note]
In another letter issued just a couple of months before his own demise, he writes:
I want to give a fatherly reminder to the members of the Guardian Council that before these decisions, they should take the expediency of the system into consideration, because one of the most important issues in the current turbulent world is the role of time and place in ijtihād and in the decision-making process. A government determines the practical philosophy of dealing with polytheism, disbelief, internal and external problems. Not only are these seminary-like discussions, which are within the framework of theories, resolvable, but rather bring us to an impasse that results in an apparent violation of the constitution. While you should exert all your efforts in ensuring that nothing should take place against the Sharʿ – and may God not bring that day – you should put in all your efforts to ensure that – God forbid – Islam is not accused of being ineffective in managing the world in relation to economics, military, social and political spheres.[note]Tadhakkur Muhim Imām Beh Shūrāye Nighibān wa Ikhtiyārāt Majmaʿ Tashkhīṣ Maṣliḥat-i Niẓām – written on Thursday, 29th December 1988.[/note]
One of the major problems certain jurists at the time had with the idea of preferring expediency over everything is that they would consider these decisions to be against divine law (Sharʿ). One instance of this can be seen in his response to Āgha Qadīrī in a letter, which was previously translated and published here. This is very much similar to some of the critiques that were laid against Ṭūfī. In the excerpt translated above, Khomeinī emphasizes again that these decisions are not and should not be considered as being against divine law. In a letter written a month earlier, while clarifying that these juristic opinions cannot be considered to be against God’s law, he expands on how many issues it is that a jurist, particularly the Walī Amr, needs to concern himself with when ruling over a state:
The books of the great jurists of Islam are filled with differences of opinions, methodologies and interpretations on the various matters of governance, culture, politics, economics and acts of worship. [These differences] are to such an extent that in matters where a consensus has been claimed, one or many opposing opinions exist. Even in matters where there is a consensus, it is possible an opposing opinion is found – this is ignoring the differences that exist between Akhbārī and Uṣūlī scholars. In the past, since these differences were restricted to seminary lessons and discussions, and were written down in academic works, that too in Arabic, the masses were unaware of them, and if they did become aware of them, these issues had no attraction for them. Now, is it possible to think that just because jurists had differences of opinions – we seek refuge in Allah – that they acted against the truth and against religion? Never.
But today, with great happiness and on the occasion of Islamic Revolution, the words of the jurists and scholars have been extended to the radio, television and newspapers. This is because there is a practical need for these discussions and issues. For example, issue of ownership and its limitations, issue of land and its division, the anfāl and public wealth, complicated matters of money and banking, tax, in domestic and foreign trade concerning agricultural partnership, partnership of capital and labour, renting and mortgage, capital punishment and financial recompense, civil law, cultural issues and its relationship with fine arts such as photography, painting, sculpturing, music, theatre, cinema, calligraphy etc.
Issues related to preserving the environment, the well-being of nature and preventing deforestation even on personal properties, issues related to food and drinks, preventing births in cases of necessity or determining birth intervals, dealing with medical issues such as transplantation of human or non-human organs to other humans, underground minerals and national minerals, changes in the subject-matter of ḥarām and ḥalāl, the expansion and restriction of some laws in different times and places, issues of legal rights and international law and their application with Islamic law, the constructive role of women in an Islamic society and their destructive role in corrupt non-Islamic societies, the limits of personal and societal freedom, issues of dealing with disbelief, polytheism, and parties that are followers of disbelief and polytheism, how to carry out obligations in air and space travel, and when travelling contrary or in the same direction as the movement of the earth, but at a much faster speed than earth itself, or during direct ascent and neutralizing earth’s gravity.
And more important than all of these matters, outlining and determining the authority of the Wilāyat-i Faqīh in a government and society, where all of these are a small portion of thousands of problems faced by people and the government, which have been discussed by the great jurists and their opinions are different from one another. Even if some of these issues were not discussed in the past, or they did not exist, the jurists today must contemplate about them.[note]Nāmeh Beh Āqā-ye Muḥammad ʿAlī Anṣārī – written on Tuesday 1st November, 1988.[/note]
In the same letter he mentions if the most-learned jurist from the seminary does not possess political and societal foresight, specifically the notion of identifying expediency, then they are incapable of leading a state:
And it is here that the technical ijtihād of the seminary is not sufficient. In fact if an individual who is the most-learned in all the known sciences of the seminary, but is unable to identify the expediency of a society, or differentiate pious and beneficial people from impious, and generally does not possess correct foresight and decision making capabilities in societal and political matters, then said individual is not a jurist in societal and political matters, and is unable to lead the society.[note]Ibid.[/note]
Through these letters and some other works, one can deduce the following three recourse principles in the thought of Imām Khomeinī:
- The absolute authority (wilāyah muṭlaqah) of a jurist.
- Necessity of looking at the conclusion and outcome of the legislative process conducted by the Walī Amr. In other words, conclusions and results are important in this scenario, not just a fulfilment of a responsibility.
- The concept of expediency in ijtihād is closely connected to the well-being of the system and has priority over individual and personal well-being. Individual responsibilities are connected and revolve around the system.
Only the Walī Amr’s intellectual perceptions, understanding and conclusions are probative in these matters. Hence, the concept of absolute authority was necessary, since a Walī Amr needs to have complete authority in implementing derived law after having determined and identified expediency.
As shown above, the approach of Ṭufī and Khomeinī was different, even though both reach a similar conclusion as far as prioritizing expediency over religious law is concerned. This also helps us understand why the former uses jargon such as takhṣīṣ or taqyīd, but the latter does not. The latter only allowed his notion of deriving law based on expediency in context of the political legislative system and within the authority of the Walī Amr. Since Ṭufī was applying his allowing his theory to be used by absolutely all jurists, his idea that the maxim of Lā Ḍarar restricts all other religious evidence is suitable. On the contrary, since Imam Khomeinī did not have such an interpretation of the maxim, he had no need to use such terms. For him, a Walī Amr is not restricting or conditioning the primary rulings of religion when he legislates a law based on expediency, rather, the law itself becomes an instance of a primary ruling. Imam Khomeinī’s conclusion is a al-ḥukm al-wilā’ī, whereas Imām Ṭūfī’s conclusion is a al-ḥukm al-fiqhī.[note]Many articles and books have been written on these terms, in Arabic and Farsi, explaining the difference between al-ḥukm al-wilā’ī, al-ḥukm al-fiqhī, al-ḥukm al-awwalī, al-ḥukm al-thānawī etc. To explain any of these terms in any reasonable detail would require an independent article.[/note]
Although this explanation is valid, nevertheless, Imām Khomeinī could have not possibly arrived at this conclusion unless he restricted and conditioned the absolute nature (iṭlaqāt) of the religious law beforehand. As mentioned earlier, we have no detailed academic work of his where he explains how he arrives at these conclusions, but a possible justification for it could be as follows.
Imām Khomeinī would have had to believe that the absolute nature of all jurisprudential verses and traditions have been restricted with the evidence that grants probative force to the legislation of a ḥākim (judge). He could have done this, perhaps, using the well-accepted (maqbūlah) tradition of ʿUmar b. Ḥanẓalah.
In other words, for Khomeinī, if a tradition were to say, ‘it is obligatory to provide financial support to your wife,’ then the absolute nature of this tradition is to be considered restricted with the condition, ‘as long as the Walī Amr does not have another opinion on the matter.’ This is similar to the absolute evidence for the obligation of fulfilling a vow, which some jurists believe is restricted to the authority a father has over his children. For example, if a son were to make a vow, a father could use his authority to invalidate it.
If Imām Khomeinī did not make this presumption before arriving at his conclusion, it would be a clear instance of Ijtihād in opposition of religious evidence (al-ijtihād fī muqābil al-naṣṣ) – something no scholar, be it Sunnī or Shīʿī accepts. His view cannot be justified through the notion of conflict (tazāhum) either, as discussed in legal theory either, since if that were to be the case, the final verdict of a Walī Amr would remain within the boundaries of the discussion concerning first and secondary rulings.