Hujjat al-lslam Ali Muhammadi Jorkuyeh in an exclusive interview with the Center for Contemporary Jurisprudence Studies:

We will wait until a crime occurs and punish the criminal

That we are not successful in solving societal problems, resolving disputes, and crime, and we constantly change laws and organizations and manipulate punishments, and yet the scope of disputes and the extent of crime increases day by day; the reason is that we want to solve problems with the term jurisprudence, and this is not possible.

Although jurisprudence has been around for a long time and many writings have been written about it, its foundations and assumptions have been discussed less. We discussed this issue with Hujjat al-lslam Ali Muhammadi Jurkuyeh, a member of the Scientific Council of the Judiciary and Penalty Department of the Center for Contemporary Jurisprudence Studies. He, who, in addition to his seminary education, has completed his university studies in criminal law, believes that judicial issues cannot be resolved with the term jurisprudence. In his opinion, without accepting a few basic assumptions in judicial jurisprudence, one cannot rely on its effectiveness. The details of the exclusive conversation on contemporary jurisprudence with the former deputy research director of the Judiciary Research Center, are given below:

Contemporary Jurisprudence: What is the Jurisprudence of Judgment and What Are Its Requirements?

Muhammadi-Jurkuyeh: It seems that we should define the Jurisprudence of Judgment a little differently than what is commonly used in our jurisprudential texts. In our jurisprudential texts, when we pay attention to the Jurisprudence of Judgment, it is usually considered the resolution of hostilities between individuals; while the Jurisprudence includes the resolution of hostilities. Perhaps this definition is sufficient for civil matters, but in the case of criminal matters, this definition and view have never met the purpose and are not sufficient.

Based on this, we can define it as follows: “The Jurisprudence of Judgment is the Jurisprudence of Judgment and Proceedings, the manner of handling claims and complaints, the prosecution of criminals, investigations and the manner of investigations, the issuance of judgments and the execution of judgments.”All of these matters that I mentioned in the definition are part of the Jurisprudence of Judgment. We should pay attention to them in the definition so that it covers both civil and criminal matters.

But regarding the requirements of judicial jurisprudence; I think that the requirements should be divided into two categories. One group of requirements refers to the software requirements of judicial jurisprudence, and the second group deals with the hardware requirements of judicial jurisprudence. Hardware requirements include:

Structure of the judicial system; In this discussion, I am more interested in examining the structure of the judicial system and the quality of its administrative organization. Is the court sufficient or not, but should we also have an organization called the prosecution alongside the court?

What should the process of approving judicial laws be like?

In relation to the software part, we should discuss the laws themselves; that is, the content of the laws; and also about judges in terms of knowledge and justice and other capabilities and characteristics.

In my opinion, in order to solve the problems of society and fight crime, we need something beyond these two dimensions that does not fit within the scope of current judicial jurisprudence and even our current jurisprudence. That we are not successful in solving the problems of society, resolving disputes and crime, and we constantly change laws and organizations and manipulate punishments, and yet the scope of disputes and the scope of crime increases day by day; the reason is that we want to solve problems with the term jurisprudence, and this is not possible. To get out of this situation, we must think beyond the term jurisprudence. We must address prior and more important matters. We must address the provision of conditions in which fewer people commit crimes, or fewer people think about crimes. We must do something so that if people have criminal thoughts in their minds, they reject those thoughts themselves and do not take practical action to commit crimes. We have never proposed these in our jurisprudence. We must expand the scope of jurisprudence. We must not only think about after the act, but we must do something so that criminal acts occur less often. In the current situation, we wait for people to fight so that we can come and solve it; whereas we should do something so that people fight less. For instance, if we carefully examine and follow up on property documents, many lawsuits will not occur. When unemployment is solved, many robberies will not occur. When the issue of youth marriage is solved, many sexual crimes will not occur. We wait for a crime to occur and then intervene to punish the perpetrator; therefore, our jurisprudence has neglected a fundamental aspect, which is the prevention of crime and misdemeanors. With the current trend, we cannot have significant successes, even if we advance the hardware and software issues very well. In other words, no matter how correct our judicial system is, our laws are comprehensive, and our judges are literate, just, pious, and capable, the problem will still remain in place; because there are many fights and conflicts in society. This is while in the Shari’ah, the principle is that society should achieve criminal deterrence.

Of course, there is another problem that anyone with any level of legal and jurisprudential knowledge and awareness interferes in the process of passing laws. For example, in the same hijab bill, people who have neither legal nor jurisprudential literacy interfered. Then do we expect a good law to be passed with these unnecessary and unprofessional interventions? Of course not. Experts come and give expert opinions, but when the law is passed, we suddenly see a trend that turns everyone upside down. This has happened in many cases.

Contemporary Jurisprudence: In general, what are the foundations and assumptions of the jurisprudence of qadha?

Mr. Muhammadi-Jorkuyeh: If we want to raise the foundations and assumptions; we can discuss jurisprudence of qadha in relation to issues of governance when we have accepted the following three foundations:

1.The social nature of jurisprudence; We must accept the assumption that jurisprudence is a social science and, in addition to individual issues, it also addresses social issues.

2.Belief in the universality of jurisprudence; We must have come to believe that our jurisprudence can be universal in such a way that it encompasses all aspects of human life so that we can raise the issue of jurisprudence of qadha.

3.The third foundation and assumption is to believe that our jurisprudence is a knowledge that transcends time and space. Just as religion itself is not limited to a specific time and place and belongs to all times and places, the science of jurisprudence is also a supratemporal and supraspatial science and can solve the issues and problems of different societies at different times. If we do not accept this basis, we cannot deal with the jurisprudence of judgment.

Contemporary Jurisprudence: Is judgment a customary matter in which the Shari’ah has minimal intervention or is it an invented matter in which the legislator must invent or sign all its issues?

Mr. Muhammadi Jurkouyeh: If we do not look at zero and one hundred, we can say that the intervention of religion in it is maximal; but at the same time, in many issues, there is no problem in paying attention to the customs of time and place and not interfering itself. In other words, we should not consider being maximalist and equal to denying the intervention of custom; rather, we both consider the intervention of religion to be maximal and do not deny the intervention of custom. We somehow combine the two. To meet some needs, in certain times and places, we can say that it is left to the custom of the community to determine. There is no contradiction in saying that the Shari’ah has well expressed many formal and substantive rules.

Contemporary Jurisprudence: Can we reconsider some of the Shari’ah rulings related to the jurisprudence of qadha’ considering the important purpose of judgment, which is to observe justice?

Mohammadi-Jorkuyeh: It is not just about the issue of qadha’; it is much more. The issue of justice can be accepted as a basis that can help us interpret documents, but justice itself is a document. I find it unlikely that such a thing is defensible. We have a basis and a reason and document, evidence. Documents are always explained and based on the basis; therefore, we cannot place justice, which is a basis, among the documents. But the justice that is the basis of the document can also be the interpreter of the document; that is, the understanding we have of the document is based on the basis of justice and should not be in a way that conflicts with justice. But there is a point here, and that is, who should recognize this justice? This is our main problem today; that is, we have encountered a challenge in recognizing and explaining the standards of justice? For instance, today they call something justice that the previous ones did not call it, or this society calls something justice that another society considers to be contrary to justice. We must pay attention to the fact that justice in the Shari’ah is a matter that transcends time and place; but what is presented as justice today is moving away from the standard. For instance, we are discussing blood money between men and women, retaliation between men and women, and the like, influenced by the global trend that is accompanied by extremes; While if we want to see whether a jurisprudential doctrine is compatible with justice, we must examine it without considering these global influences. We do not pay attention to the social structure and system that Islam has designed and we take a part of it and say “this does not make sense because it is not compatible with justice”; while we do not pay attention to the fact that we do not consider the overall structure and separate the puzzle from its context. Well, it is natural that in such a case, inconsistency arises. We must consider the social system of Islam in its entirety to see that the condition of the man’s blood money in the case of the woman’s retaliation becomes meaningful in this social system; therefore, the problem is minor and not major. The problem is in recognizing justice. Everyone accepts justice, but which justice and in which social structure and system? For instance, in the discussion of inheritance between men and women, the verse of the Qur’an is clear that “The male shall have the same portion as two females”. That is, it is not a hadith or khabar wahid. What are you doing with this? They say: No, we are not saying similarity, but rather we are saying that there should be equality. So, what should equality be? When we say equality, it should be equality in general, not in one part and not in another. When it is equal, it should be equal everywhere, and in the matter of maintenance, it should also be equal. There is no longer any reason for a man to pay maintenance to a woman.