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                                                921 of 1018 DOCUMENTS

                                            Copyright (c) 2002 UC Regents
                                      UCLA Journal of Islamic and Near Eastern Law

                                                   Spring / Summer, 2002

                                            1 UCLA J. Islamic & Near E.L. 239

LENGTH: 13153 words

ARTICLE: FIQH AND FIQAHAT*


* Translated by Kambiz GhaneaBassiri. For a brief biography of the author, as well as a useful introduction to this text
(particularly for readers not familiar with Islamic law), see GhaneaBassiri's introduction, supra Part II. Editor's Note:
Many of the footnotes in the original text are incomplete. Whenever possible, we have provided a complete, or more
complete, citation. However, several footnotes remain as they appear in the original text.

Sayyid Mohsen Saidzadeh

SUMMARY:
                                                              -
 ... For at least twenty full years, our people -- in general - have been hearing the words fiqh, fiqahat, mujtahid, and ijtihad.
... From the point of view of this humblest of authors, dynamic fiqh is a school of thought that, along with human
civilization, responds to the needs of humanity. ... A faqih (and therefore fiqh), from the point of view of Imam Ali (may
peace be upon him), has this characteristic. ... Second, the school of thought associated with dynamic fiqh, which stands at
a point directly opposite the fundamentalist school of thought, believes: ... Those who say that Islamic fiqh has presented
a correct picture must clarify what they mean and specify exactly which school of thought and which opinion they have
chosen. ... One does not accept the creation of new concepts at all and is content with existing concepts within the sphere
of religion. ... Therefore, Islamic fiqh considers the presence of women as a social matter subject to the opinion and beliefs
of people. ... This point of view, with a scientific and philosophical facade, has become the foundation of inequality
in Islamic fiqh. ... Therefore, Islamic fiqh has selected two positions: (1) A position that agrees with the mentioned
explanation [above]; (2) An opposing position which prohibits the presence of women on account of their womanhood. ...


TEXT:
[*239]
                                                                  -
     For at least twenty full years, our people -- in general n1 - have been hearing the words fiqh, fiqahat, mujtahid, and
ijtihad. It was at the height of the Islamic revolution that these words entered popular culture. We must be aware that there
are as many varying interpretations and definitions of these terms as the number of times they are heard.
    All Iranians know that laws ratified by the Parliament ni are legal only when the jurists of the Council of Guardians
(shura--yi nigahbanan) declare that the ratification does not contradict the standards of the religion of Islam (mavazin--i
     -i
shar- islam). People, however, pay no attention to what constitutes the standards of Islam. Who is a faqih? How far does
the faqih's nii realm of control and choice extend? Few among our compatriots are familiar with the essence of fiqh and
fiqahat. In fact, our people have overlooked the religio--political terminology that is most influential in the formation of
their destiny.

                                                                                           -i     -yi
          ni. Literally the Islamic Consultative Parliament of Islamic Consultation, majlis- shura- islami.
         nii. Sa'idzadeh, rather than the word faqih, uses the third person, single pronoun here, which does not connote
      gener in Persian. Given that this work is a demonstration of the equality of men and women in Islam, wherever he
      uses a pronoun that is not intended to specify genderd, I try to maintain this gender neurtality by using the noun for
      which he substitutes a pronoun.
                                                                                                                         Page 2
                                         1 UCLA J. Islamic & Near E.L. 239, *239


    In this article, the author intends (within the limitations of this writing) to introduce fiqh and fiqahat. n2 The topics that
I have chosen are the most [*240] important subjects related to these two words. For now, my hope is that the esteemed
readers gain an adequate understanding of what is intended.
    I am not incognizant of the fact that the material in this article is not fully organized and complete. I had no other
choice, because this occasion for introducing fiqh and fiqahat is a very limited one. Therefore, I emphasize that this
article does not present a complete and systematic discussion. The author has to admit that despite the fact that he has for
ten full years studied fiqh, the history of fiqh, the schools of fiqh, the theories and sources of fiqh, etc., and has in his
possession five thousand microfiche, he has still not reached the intended conclusion that would satisfy him. (Of course,
this admission is not intended as an indication of the incorrectness of the material in this article!) Although it could
be deduced from the text of this article itself, I will present the relationship between this article and the subject of our
discussion [i.e., the presence of women in civil society] clearly. In contemporary Iran, the religious and political legality
of any event will eventually derive from fiqh and fiqahat, and if something is not confirmed by fiqh and the faqih, it is not
accepted. Considering this, in this article, a picture of fiqh and fiqahat is drawn so that people will know that fiqh is a
human science. Anyone can be a faqih. The understanding of religion pertains to all Muslims. The methodology and the
logic used to understand religion are subject to reason. They are not limited by a group or a special guild. Anyone who
can interpret the Qur'an and the hadith based on the principle sources of deduction (usul--i istinbat) is a faqih.
     The science of fiqh, like the rest of the sciences, has a limited and specific subject--matter and jurisdiction. Fiqh does
not enter into all aspects of people's lives. Therefore, fiqh, as we know it today, has not engaged all necessary subjects for
people. The participation (hudur) of women in all of the subjects [treated in fiqh] has not been considered. Islamic fiqh
still does not have an inclusive and complete picture of the rights of women. In particular, women of the contemporary
period do not know their religious, social, and political obligations. As such, the legalization of [women's] participation
in every aspect [of life] is not problematic, for there has not been any discussion regarding this matter in fiqh so that we
could, either by way of affirmation or negation, deduce rulings regarding the presence and participation of women [in
society]. niii

          niii Meaning, there is no precedence on this issue, and the field is wide open for interpretation.
                                                       -
    People had no role -- from the Shi'i point of view - in political administration at the time of the advent of Islam. There
was no separation between the three powers [executive, legislative, and judicial]. There was also no discussion of civil
society (jami'ah--yi madani). These issues all entered the [*241] culture of Imami Shi'ism during the Islamic revolution.
Moreover, women's share in presence and participation [in society] has not yet been clarified and specified. Iranian women
seriously desire a clarification of their situation from the interpreters of religious law (shari'at, also Shari'ah). This article
explains to the reader that fiqh and fiqahat has the flexibility needed [to address the issue of women's presence in society],
and it does not prevent the progress and the participation of women. Faqihs can issue declarations permitting [women's]
presence [in society]!
    What is right (haqq) is for Islamic fiqh not to meddle in the realm of societal issues. Meaning, Islamic fiqh does
not generate societal situations. The people are the ones who establish and generate them. As for the participation and
presence of women, since it is completely a societal issue, its attainment is their own responsibility. If women themselves,
with their own inclination and desire, step forward (and if male society also welcomes them), fiqh cannot prevent their
presence, because fiqh applies to people's lives. Most of the issues in fiqh are formulated by the people and not by fiqh!
Whenever people initiate a new issue, fiqh, according to its sources, offers an opinion. Of course, fiqh cannot offer an
opinion that leads to sin or causes harm, hardship, or despair.
   I. What is Fiqh? Who is a Faqih? Who is a Marja niv?

          niv Marja is short for marja--i taqlid (the source of emulation).

 Some say that fiqh cannot be a guide and source of leadership for our contemporary world. They are of the opinion that
one should not approach fiqh to resolve society's problems. In opposition to them, some have said, "No act, be it of the
body or of the mind, natural or conventional, receives any value or anything else from humanity unless it includes the
comprehensive divine law (qanun--i faragir--i ilahi), meaning fiqh." n3 Alongside these two views, it is possible to sketch
a third way, a view that states that fiqh, within the limits of its virtue, can respond to the needs of today's society.
   We regard fiqh as virile, but, in using this word fiqh, we have specific definitions of it in mind. These definitions are
                                                                                                                       Page 3
                                         1 UCLA J. Islamic & Near E.L. 239, *241


the following: nv

          nv The author, here, firsts offers both of these statements in Arabic and then renders them into Persian.
    (1) Fiqh, in the specialized idiom of the faqihs, is the knowledge of the subsidiary rulings of religion (shar), or the
ascertainment of practical [*242] duties through detailed proofs (al--adala al--tafsilia/dalayil--i tafsili). n4
                                                                               -text (dalil). n5
   (2) Fiqh is knowledge of the subsidiary rulings of religion based on a proof-
   Hence, those who in defining fiqh have said, "Fiqh consists of the knowledge of the rulings regarding all human
deeds and their renunciation and abstinence from [certain] acts in both the material and the spiritual realms by relying on
                                                              -
God through the medium of the principle [sources] of proof - the Scripture, the sunnah, the consensus of the scholarly
community, and the intellect -- " n6 have not explained fiqh in accordance with [its] theoretical underpinnings (usul). nvi

          nvi While the above two definitions define fiqh as knowledge of rulings derived by humans through proof--texts
      from religious sources, this definition tries to define fiqh as what religion itself, and thus God, demands from human
      beings. Thus, in Sa'idzadeh's view, they omit the interpretive role of humans in the deduction of fiqh rulings and
      make fiqh appear as though it is equivalent to God's will.
    In order to better familiarize the readers, we will also briefly explain the terms, faqih, mujtahid, fatwa, and marja--i
taqlid.
   A. Faqih and Mujtahid

 Faqih and mujtahid have particular meanings within the tradition of fiqh. Faqih is a person who knows the sources and
proofs of fiqh. A mujtahid is a person who strives to ascertain the subsidiary rulings of religion (ahkam--i far'i--i shar)
based on the sources of fiqh. Therefore, some specialists believe that mujtahid and faqih are in an ordinal relationship
to one another. n7. From the point of view of these specialists, ijtihad and fiqahat are successive. First, there is ijtihad
then fiqahat. Hence, a religious scholar who no longer exercises ijtihad and has abandoned his work, is only a faqih.
Some specialists have said, a mujtahid is a person who could derive rulings based on clear and direct textual or non-     -
textual evidence (ahkam--i vaqi'i) without the interjection of the intellect, while a faqih is a person who could [*243]
ascertain rulings by using the intellect to make legal presumptions about what is externally manifest about the issue at
              -i
hand (ahkam- zahiri) nvii .n8

          nvii An example of such a presumption is the assumption of one's innocence before the law until proven guilty. I
      am indebted to Dr. Hossein Modarressi for this example and for clarifying the meaning of ahkam--i vaqi'i and zahiri
      for me.
   B. Fatwa

 A response that is formulated after a question is posed is called a fatwa. Raghib nviii says, "Fatwa is a response to difficult
questions posed regarding religious rulings." nix Fatwa does not necessitate a duty for everyone; rather, it is only valid for
the religious follower (muqallid) who sought the fatwa. No one knows its actual validity, for it is a rational speculation
(zann). The method for giving and seeking a fatwa is human, not divine. It is not meant for the general community. When
a fatwa becomes applicable to the general public, it changes names and transforms into a ruling (hukm). A ruling from
                                                                       -i
the understandings of a most knowing religious scholar (an--i faqih- a'lam) is acceptable to faqihs, and what sanctions its
fulfillment is its acceptance by the followers.

          nviii Abu al--Qasim al--Husayn b. Muhammad b. al-    -Mufaddal al-           -Isfahani (d. first half of the 5th
                                                                             -Raghib al-
      A.H./11th C.E. century) was a literary and religious scholar, who is best known for his works on ethics and Qur'anic
      lexicography.
          nix The author first gives the Arabic of this sentence and then its Persian translation.
   C. Marja

Marja means a source to which individuals refer or return. Hence, anyone who seeks and asks, the marja will answer.
Meaning, it is not permissible for the marja, without having been asked, to distribute an opinion with the intention that
                                                                                                                         Page 4
                                         1 UCLA J. Islamic & Near E.L. 239, *243


people would act upon it, or for the marja to ask one to act according to the opinion. The marja is chosen by individuals
themselves just as they choose other experts. Just as a general expert cannot go in search of individuals to give opinions
to, neither can the faqih.
    The institution of the marja under the current model does not go back far. It has existed for less than a hundred years.
Before it, all faqihs were marjas, and the institution of the marja was not an independent legal entity. This discussion is
lengthy and the present occasion does not allow for its explanation.
    We have to see in regard to what issues we refer to a marja. If the issue is political, is our marja the religious marja? No.
This is because fatwas are intended for individuals' acts of worship and not for their social and political [*244] dealings.
Problems regarding societal matters are resolved by other experts. Fatwas are not a source of guidance for political and
societal dealings. One cannot turn fatwas into laws, for they are given with respect to personal acts of individuals. Only
matters that are indisputable and not subject to interpretation (musallamat va muhkamat) in fiqh can be taken as the basis
of laws, not the opinions of the marja--i taqlid. Giving a fatwa for a particular individual is not the same as giving a fatwa
for the Parliment. For this reason, some scholars of the Islamic world have divided ijtihad into two parts.
   D. Religious (Shar'i) and Customary (Urfi) Ijtihad

 Muhammad b. Muhammad Qarshi (648--729 A.H./1250--1329 C.E.), who was one of the mujtahids and politicians of the
Islamic world in the 7th century of the Muslim lunar calendar, wrote: "The difference between the two ijtihads is that
in the religious ijtihad a principle, the ruling of which is established by means of religion, is observed. In common law
ijtihad a principle, the ruling of which is established by means of custom, is observed." n9
     With this division we realize that ijtihad for attainment of the needs of the government is not a purely religious
ijtihad; rather it is a customary ijtihad (or customary--religious/urfi--shar'i). Most types of governmental issues related to
legislation are related to matters of custom. Therefore, the ijtihad applied to them is also customary ijtihad. A faqih, just
as all other experts and professionals, can have an opinion regarding customary matters. In the definition of previous
faqihs we find that the grounds attributed to ijtihad were so broad as to include research and study in matters (which today
would be deemed) unrelated to fiqh.
     Currently, from the point of view of the growth of the sciences, many divisions have formed within fiqh, the most
important of which is the various specializations in law (huquq). This has also occurred in philosophy, and philosophers
have accepted the current conditions. The faqih also has no other choice; the faqih has to accept that the fiqh of a thousand
years ago has been divided into different branches and that people other than him are also engaged in the exercise of
ijtihad. Lawyers (huquq danan) are also mujtahids. Their ijtihad is with respect to customs and society, and in today's
world their word is the governing word. The practical ordering of the world revolves around the axis of law (customary
fiqh).
    [*245]
   II. The Difficulty of Ijtihad

 Ijtihad is very difficult and enervating work. With respect to the importance of this task, it suffices that we know
that fourteen centuries have passed from the revelation of the faith (tashri) and that during this time many aspects and
peripheral parts of ijtihad have died out. We do not know this history exactly. We cannot grasp Arab culture (as it had
been). During the lifetime of Prophet Muhammad (may God bless him and grant him peace), all those to whom the
religion was addressed (mukhatiban--i din) were not equal. The cultures of the varying tribes were not the same. During
that time, Imam Ali (may peace be upon him) cautions people against ijtihad. He calls [people's] attention to some
important points. He states:



O people, be God weary and do not give fatwas on matters which you do not know, for how often did the Messenger of
God (may God bless him and grant him peace) state something only later to revoke it in order to install another opinion.
How often did he say something that is not placed in its relevant context? How many a lie have they attributed to him! n10
                                                                                                                      Page 5
                                        1 UCLA J. Islamic & Near E.L. 239, *245


 When in the time of Ali (may peace be upon him) the conditions of ijtihad were this dim, with fourteen hundred years
having passed from his time, things are [even] dimmer. Consequently, in contemporary Iran, we encounter ijtihads from
young mujtahids that without a doubt cannot be regarded as God's rulings or the judgments of the religion of Islam!
   III. The Jurisdiction of Fiqh

 The determination of the domain of the intellectual efforts of faqihs is the most fundamental matter of discussion in
Islamic fiqh. Human sciences each have a determined realm and each cover a specific subject--matter and have a specified
focus. In this regard, fiqh is of no exception. It must have a determined subject--matter and a defined boundary.
    Since faqihs are commentators and expositors/sharihs (not legislators/ sharis), their expositions and commentaries
are only valid to the extent that they do not infringe upon the definition of divinely revealed laws (tashri). From another
                                                                                    -
perspective, the reasoning faculty of the religiously obligated person (mukallaf) - their ijtihad and efforts expended to
                                                                                        -
recognize the proofs (misdaq) for rulings and the issues on which fatwas are based - is another limit which faqihs do
not approach. The third limitation on exegetical efforts of faqihs is a matter that is completely humanistic, customary,
and conventional. Faqihs do not intervene in the method of transactions, the organization [*246] of official documents,
the mores and conventions of marital engagement, and other such things. The theoretical and practical sciences and
the knowledge [derived from them] comprise the fourth limit of Islamic fiqh. Fiqh is not concerned with industry and
technology. Even the fields of law, management, and political science are not related to fiqh. A faqih, within the boundaries
of religious fiqh, does not have the right to intervene in such matters.
   Consequently, Islamic fiqh does not interfere in seven areas. These are:
   (1) Customary (urfi) matters
   (2) Conventional (imda'i) matters nx

         nx A more literal meaning of umur--i imda'i is "contractual matters." I have, however, chosen to translate this
      phrase as "conventional matters" (meaning, "matters agreed upon by two or more parties") because I believe it is
      more in line with Sa'idzadeh's broad use of the adjective imda'i.
   (3) Matters that are completely theoretical (nazari) or academic (aqli)
   (4) The sciences (ulum), arts (funun), and other fields of knowledge (danish'ha--yi digar)
   (5) The subject--matter of rulings (ahkam) (and fatwas)
   (6) Fundamental rights (huquq--i asasi), including the right to choose one's fate
   (7) Experiential matters (umur--i tajrubi).
    What is intended by "customary matters" is the mainstream behavior and mode of discourse of people in any given
time and place. For example, it has been revealed in the Qur'an: For the third time [when the formula for divorce is
uttered by a man], either let women go or maintain them in the manner that is customary. nxi The faqih cannot determine
the custom intended by the Qur'an. It is the people who decide what accepted customs are. The maintenance of women
in accordance to custom means adherence to the way of life of the people in a time and place in the milieu of which that
woman and man live. Meaning that he should do as other individuals in society do in being married to a woman (zan'dari).

          nxi See Qur'an at 2:229.
    Conventional matters [are] social dealings that could be accepted by religion [as normative in a particular time and
space]. For example, the Arabs, before the advent of Islam, had particular conventions for their civil relations. Likewise,
they had penal laws and manners of worship. From among these rules and conventions of that society, the religion of
Islam accepted a portion of the laws and conventions as they were. Blood-  -money (diyya) and its amount (one hundred
camels), the amputation of hands [as punishment], marriage, and a fragment of the rituals of hajj are some of what [*247]
belongs to this category among the decrees of the religion of Islam. People were familiar with these and acted upon them.
They were not things instituted by religion.
    Therefore, the faqih cannot color or fashion such affairs as divine and establish branches and details for them in
religious law. Since ijtihad is meant as an expansive effort to ascertain religious rulings and since religion has no ruling
                                                                                                                       Page 6
                                         1 UCLA J. Islamic & Near E.L. 239, *247


regarding such issues, a faqih cannot engage in religious ijtihad. This is the place where customary (legal) fiqh comes into
play, for its basis is humanistic. With respect to such matters, a faqih engages in ijtihad based on custom.
    Another point to consider is that since the mentioned traditions were in regard to the Arabs who lived at the time of the
revelation of the Qur'an and since at that same time the traditions of other tribes and the laws of other communities were
not exactly the same as the mores and traditions of the Arabs, does religion's sanctioning of these customs necessitate
them for other peoples (millal)? If such were the case, the above-   -mentioned examples cannot be imposed upon other
nations (kishvar) and peoples as a matter of convention (imda'i); rather, it would have to be [considered a newly] founded
[regulation] (ta'sisi). In fact, a command that is essentially humanistic would be transformed into a divine command! A
faqih would have to opine whether marriage is a humanistic command in which the people's will has a part, or a divine
command in which the people's will has absolutely no part, and the people must devoutly and without question accept the
models set by religion.
    Matters that are completely theoretical and academic are not included within fiqh rulings and its basis for deduction,
because fiqh treads on the path of transmitted knowledge (naql). The principle sources of fiqh are the Qur'an and the
sunnah, and both of these are forms of transmitted knowledge. Since the human intellect ventures beyond authoritative
texts (mutun), it cannot be circumscribed to texts. This statement does not deny the rational rules and principles of
authoritative texts. It is because they are rational that they remain static and unchanged and subject to people's acceptance
in every age and society.
    The meddling of the science of fiqh in the sciences and humanistic disciplines and also in disciplines related to
religion, such as scholastic theology, is not permissible. This issue is so clear and evident that it needs no explanation or
proof.
    There are three parts to the subject--matters of rulings: the subject--matter of a religious ruling found in the revelation
(hukm--i shar) and the subject-- [*248] matters of rulings and fatwas of faqihs. n11 The part that is of interest to us is the
subject--matter of the fatwa of a faqih, not that of religious rulings (hukm--i din), for the responsibility of identifying the
subject of rulings falls on the shoulder of the faqih. What is not within the jurisdiction of the faqih is the identification
of the subject of the fatwa. For example, a faqih says that alcohol is ritually impure (najis). Insofar as ritual impurity
                                                                                         -
(alcohol) is sensibly or visibly apparent, the religiously obligated person (mukallaf) - the follower of the faqih (muqallid--
          -
i faqih) - must himself have knowledge of alcohol. The faqih is not responsible for explaining alcohol or clearly pointing
it out to his followers.
   Fundamental rights do not fall within the realm of fiqh on two grounds:
   (1) Because they are essential (zati) and are not subject to debate or explanation. Whether or not a faqih gives a fatwa,
whether he agrees or disagrees, humanity has the right to life. Human beings possess an essential dignity (kiramat--i zati).
Human beings are free (azad). They have the right to determine their own destiny (sarnivisht).
    (2) Based on this ground, any decision regarding them depends on the consent of the people, particularly with respect
to methods of governance and the administration of the country. Based on this, whatever involves the first point is subject
to the opinion of individual human beings. n12
    Experiential matters, just as purely academic matters, are subject--matters that do not fall within the jurisdiction of
fiqh, n13 or a transmitted text (matn--i manqul) cannot determine a religious duty (taklif) in issues subject to experience.
For example, if within religious fiqh, there is a fatwa that necessitates the circumcision of women, this fatwa enters the
realm of human experience. Today, the harms of circumcising women have been proven through experience. Therefore,
religious fiqh must not enter the picture. This issue does not fit within the framework of the interpretation of religion
(tafsir--i shari'at).
    [*249]
   A. Differences between Conventional and Customary Matters

 All conventional matters are [clearly] identified, determined and laid out, but customary matters are established through
the passage of time and are not evident or [clearly] determined. Conventionality has acquired a secondary identity and
found a place within Islamic fiqh. Fatwas are issued regarding conventional matters. However, Islamic fiqh still does not
accept customary matters; fatwas are not issued regarding it. Meaning, Islamic fiqh still does not accept custom (urf)
as one of its parts or sources, n14 despite the fact that the blessed legislator (shari--i muqaddas) considered custom as a
                                                                                                                        Page 7
                                         1 UCLA J. Islamic & Near E.L. 239, *249


source and attained many of his laws and rulings from custom.
   B. Differences between Law (Huquq) and Fiqh

 Law deals with sources and rules which legislative assemblies take into consideration in order to ratify laws. Fatwa and
fiqh, on the other hand, favor speculative (nazari) problems and deal with issues in the Qur'an and the sunnah. Also,
legislations take into consideration customary law as a source while fiqh does not accept custom as a source.
    Fiqh offers opinions for an individual rather than a group, but law offers opinions for a group and not an individual.
Fiqh speaks generally; the faqih has the duty to explain a problem generally, not to explain its details. Law and rules,
however, tend to view the details and practical implications. Fiqh deals with speculative matters and does not deal with
the necessity or the lack of necessity of acts, or with the premeditation of the follower's act (israr bar amal--i muqallid).
Meaning, it does not meddle with executive matters (umur--i ijra'i), but law and rules are concerned with [the execution
of] the acts of individuals[, presumably for the sake of the group as a whole].
     A fatwa cannot be valid or necessitated for a group of people unless all of the people or the majority of them consent
to it. If a fatwa is to serve as a necessary proof (hujjat) for all, lawmakers must turn it into a law. Therefore, a fatwa could
be the basis of a law, but not the law itself.
    Based on the above, one encounters this problem: If followers of other faqihs want to act religiously and legally
(shar'an) in accordance with the fatwa of their own marja, but their mufti[, based on whose fatwa the laws are made,]
holds a different opinion, can this be done?
    [*250] Since the act of every follower that is based on the ijtihad of his or her marja is not subject to blame, could one
view such a fatwa (which has acquired a legal dimension) in terms of religious obligation? Or, are the paths of religion
(shar) and law still separate?!
   IV. Dynamic Fiqh (Fiqh--i Puya)

 Descriptions n15 that have circulated in the past two decades regarding Twelver Shi'i fiqh have gradually received
serious attention. Open--minded Iranian authors in particular and thinkers interested in issues dealing with Iran and
Islam in general have turned their attention toward the newly formulated descriptions. Each with their individual level
of understanding and information has formulated an interpretation of them in their own mind. The present author is not
in a position to correct the understandings that have been mentioned in this regard or to judge between them. Rather, he
presents to the reader his own understanding and interpretation of the descriptions as a Twelver Shi'i scholar who has 25
years of experience with the fiqh of this school and has conducted research in this field for many years.
    The most important descriptive word that has been attached to the term fiqh in the past ten years is "dynamic." This
description has gone beyond the geographical and religious boundaries of Iran and has been a subject of discussion for
scholarly communities. With the propagation of dynamic fiqh, two different views have emerged. One considers dynamic
fiqh as the answer to the worldly needs of today (at least in Muslim societies). The other believes that dynamic fiqh, like
traditionist/sunnati fiqh, is not capable of the administration of society and government.
   V. Explanation of Dynamic Fiqh

 To relate dynamism to fiqh is to take a stance against stagnation and inflexibility. None of the architects of dynamic fiqh
have undertaken the explanation of the dynamic nature of fiqh. As indicated earlier, my explanation of dynamic fiqh
results from a personal understanding. I have arranged the present writing according to my own explanations. I hope that
researchers who are in search of the meaning of dynamic fiqh and seek knowledge of this school of thought would not
consider this article to be sufficient [for understanding dynamic fiqh]. From the point of view of this humblest of authors,
dynamic fiqh is a school of thought that, along with human civilization, [*251] responds to the needs of humanity. The
dynamism of fiqh means the harmonization of fiqh with the contemporaneous lives of people in a manner that does not
disillusion people of the mercy (rahmat) of God and does not found a faith upon God's punishment.
   A faqih who seeks what is true and real is a person who does not cause people to become hopeless of obtaining the
mercy of God and who does not deprive them of His grace (lutf). He also does not insure one against God's punishment
and requital. He does not go to extremes. He is not so obdurate that people would turn away from the religion of God, nor
does he leave them so free that they become subject to God's wrath and anger. n16 A faqih (and therefore fiqh), from
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the point of view of Imam Ali (may peace be upon him), has this characteristic. He is for the people, and he works for
the people. Fiqh presents to people a program for living in accordance to people's understandings and in step with their
progress. Just as religion was revealed gradually with the passage of time and with consideration of the situations, states,
                                                        -                 -
and receptive capabilities of people, fiqh also speaks - in every respect - in a manner suited for the people. When it is
said that time is the best interpreter of the Qur'an and the sunnah, what is meant is that the Qur'an and the sunnah are
reinterpreted anew with the passage of time, or that old exegeses that were acceptable during the lifetime of their exegetes
must not be used as a grounds for action. Exegetes in the present age, throughout their lives, must renew the exegeses.
                                                                               -
    Dynamic fiqh is a school of thought with this distinguishing characteristic - yet only on the condition that there exist
exegetes and faqihs who are active, dynamic, and explorative. Otherwise, fiqh, which has the capacity to be dynamic,
loses its capacity to be dynamic in practice. The fact that some have ignored this point has led them to error. Since they
do not see faqihs being dynamic, they think that fiqh does not have the capacity to be dynamic. [They are] ignorant of the
fact that the difference between dynamic fiqh and fiqh as it is presented through faqihs is great. Their fiqh is not dynamic,
because faqihs have not been dynamic!
   VI. Fundamentalist Fiqh (Fiqh--i Bunyadgara)

 This term could stand in opposition to that of dynamic fiqh, and it refers to a segment of religious fundamentalism
                 -yi
(bunyadgara- dini). (The other part of fundamentalism is associated to the principle roots (usul) of fiqh and religious
knowledge (ma'arif--i dini)). Where we have cause to identify fiqh [*252] as non--dynamic, we would describe it as
fundamentalist. Fundamentalism in terms of fiqh means reliance on the subsidiary matters (furu'at) in fiqh that have been
around for a thousand years, as well as resistance to renewal, even to the changing of the examples (masadiq) [used to
establish rulings]. Fundamentalism means relying on transmitted knowledge (manqulat), the suspension of the intellect
(ta'til--i aql), and steering clear of knowledge gained through the intellect (ma'qulat).
   VII. Contemporary Thought Regarding Fiqh

 In the seminaries of Qum, there are three different schools of thought. First, the traditionist school of thought in fiqh
whose apparent ideology (numud--i fikri) opposes proof--seeking (malakgarayi). In their point of view, seeking proofs is
absolutely forbidden and rejected. Let us note three exemplary statements from this group:



 The path of discovering absolute causes and proofs for rulings is closed to us and is far from the realm within which
our intellect comprehends. There is no way other than through unequivocal texts (nusus) for us to seek to discover the
absolute proof for a ruling. n17
    From the perspective of the great faqihs, the rejection of the thesis regarding the expansion and contraction [of
religious rulings] and the attempt to discover rulings in accordance to causes that are not in unequivocal texts is an obvious
matter. They do not undertake it in any matter related to the subsidiary matters in fiqh. n18
   The opening of the gate to proof--seeking and identifying causes in relation to revealed rulings in fiqh is the biggest
                                                                                 -i
blow to the majesty (kiyan) of fiqh and the methodology of essentialist fiqh (fiqh- javahiri). n19



 This way of thinking is a clear example of fundamentalist fiqh. Meaning, it only looks at texts (transmitted knowledge)
and rejects knowledge gained through intellection. It accepts intellection only when it agrees with what is in transmitted
texts. Rejection of the intellect is a salient indicator of this point of view.
   Second, the school of thought associated with dynamic fiqh, which stands at a point directly opposite the fundamentalist
school of thought, believes:



 With respect to issues concerning human transactions (mu'amilat), mere religious obedience (ta'abbud) does not result
in a ruling. Rather, causes and the underlying wisdoms of rulings (hikam--i ahkam) are to some extent tangible for open--
minded faqihs. Therefore, faqihs can, by discovering the categorical grounds [for a ruling], ascertain the basis and the
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[*253] standards of religious rulings, and, based on this, they can expand or contract within the radius of the issue. At
times, they can transmit a ruling on one issue to another issue. Such activities are not considered an invalid form of
analogical reasoning (qiyas--i batil) from the point of view of the earlier (salaf) faqihs and the great scholars of the world
of Shi'ism. Rather it is within the discussion of the categorical discovery of the principle issue on which the ruling is
based. n20



 This school of thought accepts dynamism only in regard to human transactions and is fundamentalist with respect to civil,
social and political matters. For this reason, the author, in order to separate his view from dynamic fiqh (as explained) and
                                                                                                 -i
make his own point of view known, chose, for the time being, the phrase "modern fiqh" (fiqh- mudirn). In actuality, this
point of view should be considered a fourth school of thought that has originated in the seminaries of Qum.
    In our point of view, the human intellect is capable, with respect to civil, social, and political issues, to derive grounds
for rulings or to arrive at correct and good deeds without the guidance of religion. With respect to the principle determined
through knowledge (i.e., theories of jurisprudence (usul al-  -fiqh)) wherever humans themselves have the capacity, they
could create a path for their own lives. This is the realm in which the intellect functions, and religion enters it only as a
means of guidance.
    Faqihs who in their fatwas rely on the likes and dislikes of a determiner of religious law (shari) are actually among
those who seek grounds for rulings. Therefore, the students of Ayatullah al- -Uzma nxii Khu'i nxiii cannot deny that their
teacher sought grounds for rulings. Hence, their views in regard to political and societal matters are not to be considered
religiously obligatory. For example, the fatwa indicating that women are not fit to be judges n21 does not conform to the
logic of Ayatullah Khu'i.

          nxii Honorific title for highly esteemed religious scholars, meaning "the greatest sign of God."
         nxiii Ayatullah Abu al--Qasim b. Ali Akbar al--Musawi al-            -1992) lived and taught in Najaf, Iraq.
                                                                  -Khu'i (1899-
      He was one of the most popular majas of the 20th century, who had followers among Twelver Shi'is throughout the
      world.
    Third, there is another school of thought that considers both fiqhs (traditionist and dynamic) to be against Islam. Some
of the religious scholars in the seminaries of Qum have said: "Traditionist fiqh and dynamic fiqh are an amalgamation of
apotheosis and self--opining in regard to ascertaining the divine will." n22
    [*254] With the above descriptions, who can claim that the conclusions of each of these schools of thought represent
the point of view of the holy religion of Islam? From which of these should contemporary Iran derive its way toward
development? According to which school of thought do our women not attain authorization to participate in civil society?
According to which school of thought do our women find their participation limited or conditional?
   VIII. Obedience to the Foundations of Induction (Istinbat) is Not a Matter of Religious Obedience (Ta'abbudi)!

 First, we must know that the sources (the active wellsprings) of Islamic fiqh consist of the Scripture (kitab), the Tradition
(sunnah), consensus, and the intellect. n23 These sources are different from the foundations (mabani) of fiqh. The pillars
and principles which the faqih uses to benefit from the sources are called foundations. Only obedience to the Scripture
and the Tradition is categorically obligatory in religion. Consensus and the intellect are two humanistic and rational
sources and are outside of the realm of religious obligations (ta'abbudiyat). Consensus (defined as the agreement between
opinions) and the intellect, even though they affix their legality to religiously obligatory matters, have a non--obligatory
color.
    The foundations of induction are completely rational. Nonetheless, they have been the subject of strong criticism and
opposition from the Akhbaris. nxiv Islamic faqihs, in order to derive subsidiary rulings in fiqh from the Scripture and the
Tradition (the Qur'an and the hadith), went to work, and they themselves decided upon the tools and the methods of their
task. The religion of Islam has not handed the faqih the tools. Therefore, our fiqh can develop new tools. Faqihs are not
bound to use the method and tools of their predecessors. The fundamental nature (ma'ni) of ijtihad entails that one arrive
at even the method of induction and its foundations through ijtihad.

          nxiv A school of thought in Twelver Shi'ism that advocates adherence only to the Qur'an and the sunnah in fiqh.
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                                                                                      -18
      For further discussion see E. Kohlberg, Akbariya, in 1 ENCYCLOPAEDIA IRANICA 716- (Ehsan Yarshater
      ed., 1985).
    The aforementioned conclusions of fiqh are all the results of tools that are at least two centuries old. These tools have
been and continue to be used. It is evident that if one brings together foundations from two centuries ago alongside issues
and needs of the current age, they will not accord. Dynamic fiqh will reach fruition when its tools and foundations are
also dynamic and when it is renewed along with the times. Otherwise, administering the country [*255] [based on fiqh]
and awaiting reformation of [current] conditions would appear absurd.
    Today's faqih will not be able to surmount difficulties or resolve people's problems so long as the faqih's thoughts are
imprisoned in the framework of tradition and so long as the faqih cannot or will not build a new frame for his thoughts.
I am certain divergence from the traditional framework and the creation of a new blueprint is not against religion (shar),
for religion does not meddle with foundations (mabani). Foundations do not emerge from uncritical obedience to faith;
rather, they result from intellection.
    In the present state, one cannot turn actual issues external to us into hypothetical issues that would exist only in
the mind. Today, we cannot close our eyes to the conditions of time and place, and other conditions, and avoid getting
involved intimately, saying it is not a matter earmarked [for the faqih]. If it is not a matter earmarked [for the faqih],
then what is the purpose of taking time and place into consideration in ijtihad? In the present age, we cannot solve or
discuss important national issues with istinad--i khabar--i vahid [a prophetic report that has been reported through a chain
of transmitters that goes back to a single person]. The reliability of a single narrator report (supposing its acceptability as
a proof) is not the same with respect to all issues; its applicability to the issue [at hand], just as the reliability of the way
in which a report was disseminated, has to be gauged.
    The path to extrapolating grounds and discovering categorical causes with respect to all rulings is not closed to
humanity. At the very least, with respect to social, political, cultural, civil, and other such matters in people's mundane
lives, one can discern the grounds for rulings and interpret them based on contemporary times, because this genre of
decisions is essentially conventional (imda'i). Humanity itself has laid out the rules and prescriptions for the organization
of families. How could it then not understand the grounds for it? Economic and political theories are creations of the
human mind. Humans can, in any period of time, change them.
    The principle based on which a government is populace, a governor elected, and a customary ruling established, is a
principle (asl) founded by the intellect, but it has origins in religion. n24
    [*256]
   IX. Particularities of Fiqh
   A. Flexibility (In'itaf)

 Religious fiqh, since it does not have neat and standardized foundations, tolerates every opinion and fatwa. It allows
for so much that we find completely opposing views with respect to the same issue. The undertaking of the Friday
congregational prayer in the absence of the twelfth Imam nxv is one of these issues. Some consider the undertaking of the
prayer to be forbidden. Some consider it obligatory. These opposing rulings both have proofs, for they result from distinct
foundations. The foundations and principles that are considered relevant by one mujtahid are not accepted by another.
With respect to the rights of women, I give you the example of child custody, which, based on the sources of fiqh, could be
assigned to the mother for an unspecified amount of time or could be taken away from her. The primacy of the mother for
maintaining an embryo (nutfih) and a fetus could be established and proven based on narrations that consider the abortion
of a child by a free woman forbidden. A father has no right in this matter. We even have a particular narration n25 from
the sayings of the Messenger (may God bless him and grant him peace), saying: when an embryo is placed inside the
mother, it is the mother who has the right of custody. Does a mother, who from the beginning has the right to maintain
and take in her husband's embryo--producing semen, not have the right to maintain its offspring?

         nxv According to Twelver Shi'is, the son of the eleventh Imam, al-                              -Mahdi, was the
                                                                              -Hasan b. Ali al--Askari al-
      twelfth and last of the Imams. He is believed to have gone into occultation (in the year 329 A.H./940 C.E.) until the
      advent of eschatological time.
   Here, based on the analogical ground of primacy, the custodianship of the mother for an unspecified period of time
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could be proven. Against this principle, there is a ground which argues that a ruling changes based on changes in the issue
at hand. Mothers have been able to claim custody of [*257] their children for themselves during the period of suckling,
because they had to give the child milk. Currently, when mothers do not have milk, babies drink formula; the issue of
suckling is no longer relevant. Based on this, mothers do not have a right to the custody of their children.
   B. Acceptance of Influences

 Religious fiqh can be influenced by a number of actual and nominal factors. We will mention some of the influencing
factors below:
   (1) Time. Fiqh is temporal. Since fiqh provides instructions for planning and improving life. It attains its subject--
matter from customs (people). Since customs are always changing, fiqh subsequently also changes.
    (2) Place. Again based on the same principle previously mentioned, people in all places do not think in a similar
fashion, or live similar lives. All peoples and tribes (in the past) and every city and country (in the present) have their own
culture, rules of etiquette and manners. Factors related to conditions of life and geography also effect people's lives. This
also influences fiqh.
   (3) Politics is another source of influence that causes transformations in fiqh.
    (4) Economic factors also influence fiqh. During a year of famine, they do not cut a thief's hand. Clothing and gold
attain a different judgment.
    (5) Science and rational and transmitted knowledge influence fiqh. In this regard, the field of speculative theology
(kalam) perhaps is most influential.
   C. The People's Share in Fatwas

 In every age and in every society, human beings have the most important part in altering, strengthening, lightening,
and changing faqihs' fatwas. This is so because most rulings of Islam are conventional (imda'i). One chooses one's own
methods and asks the faqih about the permissibility of its implementation. Also, since the religiously obligated person
                                                                      -i
(mukallaf), customs, and experts chosen by the people (khubrigan- mardum) identify the subject--matter of rulings,
people themselves could decide upon the rules of conduct. A faqih is an interpreter and an explainer and has a passive
role. Unlike either a religious or a secular legislator (shari and qanunguzar), a faqih does not have an active role. If a
faqih is asked a question, the faqih answers. A faqih waits for an event to occur and for someone to ask a question before
providing an answer. The response has to be appropriate for the [*258] question and also has to be considerate of the
situation of the questioner and his or her time and place. Consequently, people in our time can decline to perform a
                                                                                                   -i
marriage ceremony/contract (aqd) for young girls until the canonically established fatwa (fatwa- mashhur) [permitting
their marriage] is voided as a subject--matter. They could give equal inheritance to women until equality is achieved.
People are not told that a faqih does not determine the duties of individuals and does not give them their path in life. They
are not told that they themselves determine their own duties and undertake their own path in life. Therefore, in order to
make sure that they are on religious paths, they turn to faqihs so that they could opine based on the standards of the faith.
     Our religious society has been a weak, docile, and imitative n26 society. Our people have left all choices to be made
in life to faqihs while religion leaves all of people's mundane affairs to themselves. n27 It seems that one of the reasons
for the decline (inhitat) of the Muslim civilization is this exact issue. And, of course, the intent of the author is not to
insult fiqh or faqihs. His grievance is with a people who consider themselves to be stilted and immature. His complaint is
with a traditionalism which does not tell people that faqihs and muftis are not guardians of their collective or individual
lives. Also, [the author] does not have political matters or the administration of the country in mind. A faqih possesses
command (vali--i amr) nxvi as a governor (not as a mufti). This possession of command (vilayat) has a firm rational and
religious foundation.

          nxiv This is a reference to the concet of vilayat--i faquh (governance by the faqih), which is the founding
      principle of the Islamic Republic of Iran. For a brief discussion of this concept see Roy Mottahedeh, Wilayat al--
      Faqih, in THE OXFORD ENCYCLOPEDIA OF THE ISLAMIC WORLD 320--22 (John L. Esposito ed., 1995).
   X. The Stance of Fiqh
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 In the present state, if we would like to attain a clear picture of the rights of women and do so through Islamic fiqh, fiqh
will not provide an answer, for it has not prepared itself. The opinions are so varied and disbursed that, up until now, no
faqih has had success with this task. Those who say that [*259] Islamic fiqh has presented a correct picture must clarify
what they mean and specify exactly which school of thought and which opinion they have chosen. Fiqh is a collection of
opinions. Every opinion that you choose, against it already stands another opinion!
    Some among the young, distinguished scholars of the seminaries in Qum (following in the footsteps of the late
Mutahhari nxvii) have turned to discussions of scholastic theology. They claim that Islam has a plan for the family! It has
a plan for women! These youths, when they want to substantiate their claims, return to fiqh. They recognize fatwas as the
foundation for the determination of women's rights. They have to be asked, to which school of thought in fiqh do these
theological explanations turn? On what point of view are they based? What happens to the opposing point of view? n28

          nxvii Ayatullah Murtaza Mutahhari (1920--1979) was one of the leading reform--minded Iranian clerics who
      participated in the Iranian revolution.
   XI. The Presence of Women and the Stances Taken by Faqihs

 We indicated that civil society is a completely human--made label. It had not appeared before in Iranian politics or in the
religion of Imami Shi'ism. We wrote that the stance taken by religious leaders with respect to this new concept takes two
different forms. In the first, civil society is subject to the approval of religious law. In the second, religious law does not
accept it. We added that these two reactions are based on two different theories of the principles [of faith]. One does not
accept the creation of new concepts at all and is content with existing concepts within the sphere of religion. The other
accepts the creation of new concepts and approves of them based on the general rules and principles of faith. Now, we
have to know if the presence of women is one of these issues. Can faqihs situate the presence and participation of women
within religion (as a topic of religious law) or is presence (hudur) also a human--made topic, outside of [the realm of]
religion?
    We have no doubt that the presence of women in civil society, like civil society itself, is completely new and a topic
entirely within the realm of customs (urf). Therefore, it does not fit within the jurisdiction of faqihs. The presence of
women received its legitimacy and approval from society. Since civil society does not recognize any differences between
men and women, [*260] when speaking of civil society, the participation and presence of women is necessary and
integral.
    Consequently, since the presence of women is a matter of custom, its acceptance or non--acceptance is with the people.
Our people, in contemporary Iran, have accepted the presence of women. The modern world has not only accepted the
presence of women but considers it a necessity and has taken it seriously. The customs of rational beings (uqala) in the
world has confirmed the presence and participation of women in all arenas.
    At the time of the revelation of the Qur'an the issue of the presence of women was also not considered a religious
matter. One cannot find a verse or narration (with a valid chain of transmission) that discusses only and exclusively the
presence of women. The Qur'an considers presence to be a societal matter and speaks based on the customs of varying
communities. The story of the Queen of Sheba brings news of the customs of the Arab people during the time of Solomon
(may peace be upon him), when women had a high position and status. The society of Moses' (may peace be upon him)
time had also accepted the serious and influential presence of women. During these two eras women engaged in political
and social activities. As such, one could only accept from among the views expressed by faqihs and religious scholars
those views that consider the presence and participation of women as a matter legitimized by the people.
    From the point of view of the author, the differences in the opinion of faqihs result from [the differences in] their
views of society and are an outcome of the times in which they lived. In other words, most faqihs agreed on this issue
and all knew that the presence or absence of women is a matter completely related to customs. Whenever the customs of
a society permitted the presence of women, faqihs also confirmed their presence. Whenever society did not tolerate the
presence of women, faqihs and religious scholars spoke to women about hadiths and narrations that compensated for the
wrongness of the absence of women. For example, they recognized a greater value for praying in a closet than praying in
congregation or in the Friday congregational prayer. The division of female communities into those who veiled or kept
out of sight (mutasattara) and those who are unveiled or seen (mutabarraza) in the works of the masters of Imami fiqh,
such as Shaykh Tusi, nxviii is the best support for the view of the author. Of course, in communities in which the copious
presence of women is not accepted, a few women [*261] have still been present. Religious texts and Islamic fiqh, with
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their discussions of "unveiling" (tabarruz) and "displaying one's beauties to a stranger" (tabbaruj), and other such topics,
attest to this truth.

          nxviii Abu Jafar Muhammad b. al--Hasan al-     -Tusi (385--460 A.H./995--1067 C.E.) was an eminent Twelver Shii
      theologian, jurist, traditionist, bibliographer, and exegete of the Qur'an. He was influential in the structuring of Shi'i
      jurisprudence during the critical period following the Great Occultation of the twelfthImam (329 A.H./940 C.E.).
    In accordance with such divisions and on the basis of [this being] a matter that is completely societal, the rulings of
faqihs have differed. An unveiled women herself appears in the court, but in order to hear the testimony of a woman kept
out of sight, a judge or his representative go to her house. n29
    Another point attained from the fatwas of religious scholars is that whenever women themselves, through their own
strength or inclination, have appeared in society, Islamic fiqh has accepted their presence. This was the case even during
the Islamic revolution [in Iran]. Whenever women have left the stage themselves or have been pushed to the side, Islamic
fiqh has arranged its presumptions on the basis of women being out of sight.
    Therefore, Islamic fiqh considers the presence of women as a social matter subject to the opinion and beliefs of
people. Faqihs of distinction and profound thought have been aware of the jurisdiction of fiqh. Consequently, figures
such as Ayatullah Khu'i -- who with respect to the discussion of female judges and marjas considers proofs taken from
sources of transmitted knowledge (adillah--i naqli) to be objectionable in terms of customary rules of decency, and who
only emphasizes issues related to a pious woman's take [in inheritance], her veiling (tasattur), and her concealing herself
            -
(tahajjub) - have been aware of this truth. He spoke so precisely that instead of using the terms covering (sitr) and
concealing (hijab) and chastity (ifaf), he used expressions such as keeping oneself out of sight (tasattur) and concealing
one's self (tahajjub). These two words are from the tafa'ul pattern in Arabic morphology, signifying the acceptance of
                                                                                                                 -i
covering (sitr) and of concealing (hijab) n30 in a general sense and synonymous with complete veiling (astar- kamil).
What he means is that judgeship and marja'iyat of women requires complete presence, and since our women themselves
decided to sit at home, we cannot compel them to become judges or marjas or to ask or urge them to [*262] accept
these positions and to leave their customs and way of life. Whenever they themselves reach the conclusion that they must
undertake the task of judgeship and marja'iyat and whenever they themselves change their customs, they will not face any
obstacles in religious law!
    Gender has absolutely no place in fiqh opinions, for a faqih sees the existing situation of his own time and interprets
religion with respect to the existing conditions or the conditions which he supposes. When a faqih sees that in his society
there are few capable and deserving women, or at least they are not capable of being present or participating in sensitive
and essential positions while there are many capable men, the faqih opines for the absence of women in judgeship and
marja'iyat. As a result of this, the prohibition of the judgeship of women has been influenced by the social environment
and has become prevalent based on the following presupposition: women (meaning the women of the mufti's lifetime)
are not capable of judgeship. From this point of view, the subject--matter of the faqih's fatwa is an external, personal issue
that is wholly temporal. Faqihs have placed the presence of women under the guardianship and supervision of men. This
fact shows that the presence of women had no prohibitions. Rather, the tools and the means of their presence were not
provided, to the extent that according to some narrations, a deserving and pious woman is as rare as a crow with a white
leg!
    No faqih has excluded women from society on the basis of her being a women or on the basis of gender. The decree for
women to remain at home and the prohibition of their presence has been on the basis of their being considered weak. n31
Islamic fiqh seeks actual capabilities while it does not deny the capability and aptitude (power accompanied by capacity -  -
qudrat bi 'l--quwah) of women. What is at issue is that fiqh opines based on the existing situation, and its discourse takes
into consideration the women of the faqih's lifetime! Even in the politics of Iran today, if women themselves did not step
on stage and demonstrate their power, their presence would have been prohibited.
    Of course, we do not deny a rare and little--followed point of view which absolutely prohibits the presence and
participation of women due to their womanhood. Such a school of thought is not embraced as a pure and unadulterated
fiqh (religious) opinion. This view is a result of corrupted human opinions and one--sided exegeses of religious texts. The
opinion that women are defective and weak is a corrupt point of view that has no basis. This [*263] point of view, with
a scientific and philosophical facade, has become the foundation of inequality in Islamic fiqh. Unfortunately, it also has
followers.
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    Therefore, Islamic fiqh has selected two positions: (1) A position that agrees with the mentioned explanation [above];
(2) An opposing position which prohibits the presence of women on account of their womanhood. n32
   XII. Precedents and Proofs for the Presence of Women

 Those who agree and those who disagree with the participation of women have enumerated precedents and proofs in
order to substantiate their point of view. The mention of every single one of these is not only beyond the capabilities of
the author, but would also require more time and space. Here, we will mention three of the proofs offered by opponents
of participation and refer briefly to the response of the proponents.
     Opponents of women's presence note the negative proofs and say: The presence of women necessitates, first, the
mixing of men and women, their interaction with one another socially, their talking and listening to one another, and this
is forbidden. Second, the right of the husband is lost. The husband cannot benefit from his spouse! Because, according to
the content of narrations, a woman must always make herself pretty and be ready for men's physical enjoyment so that
whenever the husband. . .. Third, the right of children is abolished, and a mother cannot nurse her children and care for
them.
    Proponents, however, think beyond the limits of the house and conceive of the presence of women at a greater and
more extensive level. They believe that the presence of women necessitates, first, the capacity and the position of men
in the administration of the household to become evident and the wife to discover her rights. n33 Second, women's
going to work will result in population control. n34 Working outside of the house will also show women that the role of
motherhood is not a natural role and that there is a great deal of difference between them and other living beings. Third,
the presence and participation of women will destroy traditional molds and cliches and make it [*264] necessary for men
to change their views and consequently not consider women weak.
    Proponents of the presence of women, when they look at religious law, do not accept any of the three proofs and
precedents that the opponents mention because the coming and going of men and women in walkways and their presence
in public and office spaces is not considered proof of forbidden mixing and social interaction. Talking and listening to
one another is also not forbidden. The right of the husband is not so expansive and great as to turn the wife into a slave.
Therefore, the presence of women does not oppose the right of the husband in any way. The right of physical enjoyment is
not one--sided and is not associated [only] with the husband. Rather, it is two--sided and is associated with both individuals.
This right is actualized in accordance with both of their free wills. Caring for and raising children does not oppose work
outside of the home. Women are not always occupied by the work of giving birth and child--rearing. The law (qanun) has
created a situation for pregnant women and women with children that will not preclude the fulfillment of the right of the
child.
    Aside from all of this, the proofs offered by opponents are not as great as their claims. All the proofs that they bring
forth are all for women with husbands. They do not take into consideration single women or widows. They also do not
apply to married women who have permission from their husbands.
   (Those interested in these issues could refer to the articles and books of the author to perfect their knowledge [of these
matters].)
   XIII. Muslim Woman in Search of Certain Exegeses

 Now that you have become familiar with fiqh and its varying points of view, you can grasp why it is that Muslim women,
in all Islamic countries, are still bewildered and confounded. They do not really know how religion (shari'at) views them.
Muslim women need intellectual and spiritual quiescence. They want to know how religion (din) has actually passed
judgment on them. This uncertainty has caused many of our female intellectuals and thinkers to become inclined toward
humanistic schools of thought (makatib--i bashari). Notable spokespersons for Islam in our time have an immense duty.
They have to give peace and support to women. They have to illustrate the straighter and sounder path of faith (rah-   -i
aqvam--i din) and to refrain from divergences in opinion.
    [*265]
   XIV. The Role of the Faqihs in the Council of Guardians

The Council of Guardians is the official point of reference for the interpretation of the [Iranian] Constitution and the
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                                        1 UCLA J. Islamic & Near E.L. 239, *265


approval of the general laws ratified by the Parliament. Some seem to think that only the faqihs in the Council of Guardians
can resolve and clarify the current problems of the country in accordance with fiqh. In order to remove any such doubt
[regarding the falsity of this assumption], we will mention two points.
    First, the Council of Guardians has the right only to make ratified laws conform to the standards of Islam (mavazin-     -i
islam). These faqihs, however, do not determine or interpret the standards of Islam (religion). n35 Rather, the faqihs that
determine and interpret are those who are referred to in the second principle of the Constitution, meaning those who have
the status of marja--i taqlid, the guardian of fiqh (vali--yi fiqh), scholars of fiqh, and thinkers outside of the system. These
people, by perpetuating fiqh and ijtihad, both progress alongside the passage of time and set forth their points of view.
These points of view must be taken into consideration during legislation, and the Parliament legislates based on them.
    Parliamentary laws are sent to the Council of Guardians so that this council, relying on the opinions of these faqihs,
identifies whether or not the ratified laws are in agreement or opposition to their opinions (the standards of religion).
In actuality, the Council of Guardians corrects or affirms the discernment of the members of the Parliament ([who are]
not necessarily faqihs). Hence, the Council of Guardians in general, and its faqihs in particular, are overseers; and since
overseeing n36 connotes approving, they have the role of an arbitrator, by which they referee between the marja--i taqlid
and the Parliament. To put it a better way, the fatwas of faqihs are adapted to situations dealt with in the Parliament. This
council decides whether or not they conform. Thus, they themselves do not have the intrinsic right to interfere. This task
is performed by the marjas.
     [*266] Second, the Council of Guardians does not make decisions without a standard or a method. Rather, they have
a distinct framework within which they act. The faqihs in the Council of Guardians enact legal interpretations by relying
on a certain explanation. From their point of view, the standards of religion are fixed.
   According to Letter 76/21/583, dated 10/3/1376 [12/24/1997 C.E.], the Council of Guardians [states]:



 (1) What is intended by interpretation is the expression of the intent of the legislator. Therefore, interpretation is not
applicable to the contraction and expansion of law with respect to cases that do not require a clarification of ambiguities
found in the law.
   (2) An interpretation, from the time of the expression of the intent of the legislator, must be applied in all cases.
Therefore, with respect to cases related to the past, when the executors had a different take on the case and had begun the
process of its execution, the interpretation of the law does not apply. [It does not apply] to cases that are said and done
with.



 Based on this opinion, the Council of Guardians' interpretation of the Constitution is acceptable and applicable from the
time of the interpretation onward, not from the time of the ratification of the law! It does not automatically apply to past
laws. Therefore, the issuance of the Council of Guardians' opinion regarding the Family Protection Act [of 1967], lacks
the features of law (vajhi'i huquqi), for at the time of the ratification of the Family Protection Act the Islamic Republic
was not in power!
    The Council of Guardians, in Letter 4872, [dated] 4/20/1372 [7/11/1993 C.E.] announced, "What is meant by
opposition to the standards of religion is that it does not conform to the primary and secondary rulings of religion."
According to this, the basis of agreement and disagreement with the divinely revealed law and Islam are the primary and
secondary rulings of religious fiqh! A primary ruling according to some contemporary faqihs consists of a ruling that is
established with respect to its subject--matter (in an ordinary state), when factors such as necessity and compulsion are not
                                                                                                                 -matter only
taken into consideration. A secondary ruling consists of a ruling that is established with respect to its subject-
in a state of necessity or compulsion (meaning, rulings that change with respect to two factors, necessity and compulsion).
n37
                                                                                                                -i
    This division was formed only for rulings that are based on direct textual or non--textual evidence (hukm- vaqi'i), a
ruling the opposite of which is described as a ruling that takes into consideration assumptions made about the external
manifestation of the issue at hand (zahiri). However, according [*267] to the opinion of some other faqihs, the explanation
of primary and secondary rulings is different. Sayyid Hasan Qa'ini, who is among the first--rate scholars of jurisprudential
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                                         1 UCLA J. Islamic & Near E.L. 239, *267


theory and mujtahids, in the 13th lunar century wrote:



 [A] ruling based on direct evidence (hukm--i vaqi'i) is the first real ruling and is based on the good and the bad of the thing
itself. It could sometimes be related to essential matters such as the ritual prayer and it could also be related to substitutive
matters such as tayammum nxix. A ruling based on assumptions made about what is externally manifest is that same
secondary ruling which arises from the religiously obligated person's lack of unequivocal knowledge and of access to
direct evidence, which based on the doubt involved in the ruling, is named real in a secondary sense (vaqi'i sanavi) nxx
n38


         nxix Tayammum is a dry ablution performed with fine earth in place of the ritual ablutions (vuzu/wudu and
      ghusl), which require water. Its performance is allowed when clean water is not available for ablution or when
      physical contact with water may be harmful to one's health.
          nxx What is interesting in Sa'idzadeh's rather brief and confusing explanation of the council of Guardian's use
      of the terms "primary and secondary rulings" is that the application of their decisions, in his view, are subject to
      different interpretations. That is, their word is not necessarily the decisive statement on the matter.
   XV. Conclusion

 This article offers a concise explanation of fiqh and the manner of thinking in fiqh. It defines fiqh's jurisdiction and
illustrates the sources of induction. First of all, fiqh is a human science. Faqihs' opposing views and inharmonious ways of
thinking are the best proofs for the fact that fiqh is a human science. The sources of induction are demonstrated through
reason, not through uncritical obedience to religion. Fiqh, despite the resolute and impenetrable image it portrays, has
been shown to be pliable and adaptable. The share of the people [in it] has also been demonstrated. This article concludes
that fiqh has not specified its stance with respect to women. Faqihs have still not developed a system for determining the
rights of women. Concurrently, women are in search of a reliable explanation from faqihs.



FOOTNOTES:

         n1. Before this, only students of religious sciences, clerics (ruhaniyun), and few mosque--attending persons had
      heard these words.



          n2. Fiqh is used to mean the understanding of religion and fiqahat is used to mean the use of one's understanding
      of religion and the act of understanding religion. It is exactly like tibb, "medicine," and tibabat, "the practice of
      medicine." (About three hundred years ago, fiqahat was not similar to tibabat!)



        n3. Ayatullah Muhammad Taqi Ja'fari, Falsafah--i Din (n.d.) (cited in Kayhan--i Havayi, Murdad 8, 1376 and
      Murdad 15, 1376).



          n4. Ayatullah Ali Mishkini, Istilhat al--Usul (n.d.) (the author is the president of the Council of Experts).



          n5. Sayyid Husayn Qa'ini, Absar al--Afkar 3 (n.d.) (manuscript in the library of the Ja'fariah--yi Qa'in School).
                                                                                                                  Page 17
                                   1 UCLA J. Islamic & Near E.L. 239, *267


    n6. Ja'fari, supra note 3, Murdad 8, 1376, at 9.



    n7. Ayatullah Mishkini, President of the Council of Experts.



    n8. Ayatullah Muzaffar, founder of the Faculty of Fiqh at the Seminary of Najaf.



                                                                   -Hisba 51 (al-
      n9. Muhammad b. Muhammad Qarshi, Ma'alim al--Qurba fi Ahkam al-                     -Misriya al--Ama
                                                                                -Hay'a al-
     -Kitab, 1976).
li 'l-



    n10. Wasa'il al--shi'ah, Tehran, v. 18, p. 13.



   n11. The ruling of a faqih is different from the fatwa of a faqih. Read about the conceptual differences of these
two terms from other sources.



    n12. Imam Khomeini (God have mercy on him), during the time of his residence in France, repeatedly elucidated
this matter. See, e.g., 3 Nur 42 (n.d.).



    n13. A type of fiqh that derives its legitimacy from its association with religion [interprets] sacred texts. On
the other hand, customary fiqh -- meaning laws that derive their legitimacy from association with legislative bodies
and the customs of the people -- interprets human texts. Even though both fiqhs (religious and customary) opine on
matters outside of authoritative texts, this realm about which they offer opinions is limited.



    n14. Knowledge (danish) considers customary laws (huquq) as its source. Since the current customs are
completely different from the customs which prevailed at the time of the advent of Islam, the paths of fiqh and law
have diverged, even though they should not have been separated. This separation has caused the isolated fiqh and
the faqih. Conversely, it has granted prominence to law and lawyers.



     n15. Among these descriptions are dynamic fiqh, traditionist (sunnati) fiqh, essentialist (javahiri) fiqh, deductive
(istidlali) fiqh, governmental (hukumati) fiqh, literalist fiqh (guya; literally, "self--evident," "it itself speaks to you"),
and the fiqh of the house of Prophet Muhammad (ahl al-     -bayt).



    n16. "A faqih does not drive people away from the mercy of God and does not cause them to despair the spirit
                                                                               -Balagha, Hikmat 90 (Cited in
(ruh) of God and does not insure them from the trickery (makr) of God." Nahj al-
Arabic).



    n17. 3 Subh, Shahrivar/Sept. 1376, at 55.
                                                                                                                Page 18
                                  1 UCLA J. Islamic & Near E.L. 239, *267


     n18. Id.



     n19. Id.



     n20. 1 Dadrisi, Shahrivar/Sept. 1376, at 7.



     n21. See Ayatullah Muhammad Hadi Ma'rifat, Faslnamah--i Hukumat--i Islami, Summer 1376.



     n22. Fiqh--i Guya 27 (n.d.) (a pamphlet).



   n23. Analogical reasoning (qiyas), application of discretion (istihsan), consideration of the public's interest
                                                                                                          -
(masalih mursalah), obstructing ways that lead to evil (sadd--i zara'i), etc., are all part of the source - intellect.



    n24. Among the proofs for this point of view from the sources of transmitted knowledge are the following:
Qur'an at 13:11 ("God does not change a people until they change themselves"); 4:65 ("But no, by your Lord! They
will not believe until they have made you the judge regarding what has caused separation among them"). See also
Qur'an at 48:8, 48:10, 60:11, 9:111, and the hadith that states, "You are governed according to the way you are."
See also the narrations from Nahj al--Balagha and tens of other hadiths. Those in possession of the command (ulu
  -amr) (Qur'an 4:58) [the original incorrectly cites Qur'an 4:85] are not just the Messenger (may God bless him
al-
and grant him peace) and the Imams. The Qur'an, when it commands obedience during the time of the Messenger
(may God bless him and grant him peace), mentions those in possession of the command. It means that those in
                                                                                 -
possession of the command are present, and they are other than the Prophet - meaning commanders, governors,
and other individuals who are responsible for different aspects of the administration of government. Also, from the
mentioned verse, one deduces that the people themselves have placed this command (government) on their [i.e., the
commanders' and governors'] shoulders. Therefore, they must be obedient. One cannot derive uncritical obedience
to religion (ta'abbud) from this noble verse. This verse is subject to reason. Meaning, since people themselves install
governors and those responsible and in possession of the command, they must obey them.



     n25. See Sayyid Mohsen Saidzadeh, Hizanat--i Kudak dar Bun'bast--i Ikhtilaf--i Nazar'ha, Zanan, Aban 1376, at
7.



     n26. There are two kinds of imitation: (a) praiseworthy and (b) blameworthy.



    n27. The aim of the Qur'an and the aim of the Messenger (may God bless him and grant him peace) has been
the growth and progress of the people. Islam calls people to think, reason, and reflect. Religion seeks to diminish
the civilizational petrifaction of Muslim society and to expand the realm of its rational modes of comprehension.
It constantly tries to decrease the sphere of government's authority and increase the burden of responsibility on
people. This is all that is meant by arriving at perfection. The goal is to perfect humanity not to make it obedient.
                                                                                                                Page 19
                                  1 UCLA J. Islamic & Near E.L. 239, *267


    n28. See Sayyid Mohsen Saidzadeh, Bazkhvani--i Ravish--i Shinakht--i Huquq--i Zan dar Islam: Darurat--i Inqilab
dar Ravish, Iran--i Farda, no. 41, at 26--30 (n.d.). The author, in two other works, describes the methodology for
ascertaining the rights of women and contemporary points of view in scholastic theology: (a) Tatbiq Kunvansiun--i
                                             -i                   -i
Rafi Tab'id Aliyah--i Zanan and (b) Ravish- Shinakht--i Huquq- Zanan.



                                                 -i
    n29. See Sayyid Mohsen Saidzadeh, Tatbiq- Fiminism ba Masa'il--i Dini--i Islami, Address at the sixth seminar
                                                               -Mabsut 4 (n.d.)).
in Toronto, in Zan va Jinsiyat va Islam 76 (n.d.) (also in 6 al-



    n30. What is intended here is not concealing (hijab) in terms of religion, meaning the covering of the head.
Covering (sitr) in fiqh is mentioned with respect to the ritual prayer and concealing (hijab) is mentioned with respect
to [encounters with] males whom a woman could marry according to religious law (namahram). Each has a specific
meaning. Chastity (ifaf) is generally mentioned in punitive rulings (ahkam--i jaza'yi). These three terms differ from
the words tasattur and tahajjub. These two words refer in a general sense to the presence of women in society.



    n31. What is meant is that men in Iranian and Arab societies of the past weakened women. They prevented them
from obtaining an education. They adopted measures by which women were not able to actualize their power over
their own capacity.



    n32. About ten years ago, when I wrote a piece about the presence of women in society from the perspective
of Islamic fiqh, I divided the existing points of views into three groups: completely agreeable to the presence of
women alongside men, opposed to the complete presence of women, and conditionally agreeable [to the presence
of women alongside men]. Today, with the analysis that has been presented, I have concluded that there are only
two views: in agreement with presence and opposed to presence. (The conditional view is actually the same as the
agreeable view that does not want to mix human conceptions with Islamic teachings).



   n33. Ibrar, Azar 11, 1376/Dec. 2, 1997 at 5 (in column 5).



   n34. Id.



    n35. Here, I spoke carelessly and in accordance with the [idioms] of current culture. From the point of view of
the author, religion (shar) and the standards of Islam have different meanings.



     n36. This overseeing (nazarat) should not be confused with the overseeing of elections, which is only an act
of inquiry (istitla'i) -- not an act of approving (istisvab). For Articles 4, 94--96 of the Constitution, clearly convey
this meaning, even though the word "overseeing" is not mentioned. But, Article 99, despite the clear presence of
"overseeing" does not mean approving. The fact that "overseeing" is mentioned in a general and abstract way is
indicative of the limits of irrefutable knowledge of how to judge an event [before it actually occurs]. Meaning,
it refers to overseeing as in observing (itila'i). To interpret this word as overseeing in the sense of approving is
opposed to the spirit of the Constitution and the general right of the people. It is also against the principle of the
separation of powers and election.
                                                                                                      Page 20
                                  1 UCLA J. Islamic & Near E.L. 239, *267


   n37. Mishkini, supra note 4.



   n38. See Qa'ini, supra note 5, at 92. There are other opinions that could be explained and discussed. As
previously mentioned, the author is building on summaries.

				
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