If the meaning of government jurisprudence is that tolerances are made without a valid and Shariah reason so that government rulings are closer to the people’s opinion, it is not acceptable; But if it means that in addition to the rights of the individual, which previously prevailed in the inferential aspect, we also consider the governmental and social aspects of the fatwa, it is correct, provided that we do not deviate from the rules and principles of ijtihad.

Hint: In recent years, Hojjatul Islam Mohammad Ali Ghasemi has focused more on medical jurisprudence and has organized his scientific efforts in this jurisprudence. Of course, in addition to teaching and researching medical jurisprudence, he is also considered among the high-level professors of Qom’s field of practice. We talked with him about the secularization of jurisprudence, which is the challenge of today’s research in contemporary jurisprudence. The director of the Medical Jurisprudence Department of the Jurisprudence Center of the Athar Imams (‘a) believes that becoming secular has two meanings, right and wrong. According to him, if the standards and principles of derivation of the Shari’a ruling are observed, it will not become customary jurisprudence; But if these rules and regulations are not followed, fiqh will become customary, which is reprehensible. The details of the conversation with this professor and researcher of the seminary of Qom will pass through your eyes.

The problem we have with the custom, regardless of the challenges that exist regarding its validity and non-authenticity, is the nature of the custom itself. Custom is one of our sources to discover examples or topics. On the other hand, a caveat called the secularization of jurisprudence has been mentioned. Now the question is, what is the secularization of religion and can it be considered as a problem and a limitation?

Qasemi: Custom has two meanings: custom that is used in evidence and is proof, and custom that means customary tolerances and popularization. When we say that something should not become conventional, it means that conventional tolerances should not remove it from being scientific. This is what is meant by the fact that religion should not become customary; That is, it should not destroy the customary tolerances of religion. On the other hand, it is custom that is presented in ijtihad, jurisprudence, and principles in evidence that are referred to them, and custom is the standard in them, and their understanding is dependent on custom. These two customs should not be confused.

What is meant by custom is the lowering of the level of reasoning or the welcome and displeasure of custom?

Qasemi: Araf does not have enough expertise to make inferences in jurisprudence and does not follow the rules and styles of ijtihad and concludes whatever he likes. This does not belong to the custom of the society either; Rather, an expert and researcher, after careful jurisprudential arguments, may draw a conclusion that custom says and even specify that custom likes this; Therefore, these two are in the same direction.

Of course, it should be noted that making religion difficult is different from becoming secularized, and the convenience of people does not mean becoming secularized. The two should not be confused. Let me give an example. In terms of quantities, weights and distances, custom may tolerate some and consider 50 meters less as 8 Farsakh. Shariah does not accept this custom tolerance. In these cases, if we say that custom says so, it is definitely not accepted; But the Shariah may accept it.

For example, in the realization of the issue that is mentioned in the reason of Sharia, the Holy Sharia says that it is forbidden to eat soil. If a religious person eats less than one gram, he has committed haram, custom also says that it is haram; But this man is eating bread with intellectual and microscopic precision and knows how many grams of soil he is eating; Rather, he eats dirt more than before, but custom says that he is eating bread, and Sharia also says that this custom is accepted. In fulfilling the prohibitions mentioned in the evidence, the common law has been accepted and used as a criterion; But in terms of quantities and weights, the Shariah did not accept customary tolerance and did not accept customary tolerance. So, it should be seen what the rule and law of Sharia is for custom.

It cannot be said that custom is accepted everywhere and it cannot be said that custom is not accepted anywhere.

For example, in medical jurisprudence, some believe that people’s problems should be solved, such as having children, embryo implantation, brain death, etc. Doesn’t this mean becoming customary?

Qasemi: It is not accepted if you do not have a solid reason and a legitimate solution to facilitate the affairs of the people; But if you have a reason and according to it, you do something to ease and comfort people, there is no problem.

If the fatwa of a jurist is that sperm cannot be implanted in the uterus of a foreign woman from a foreign man, but there is a solution that first turns the sperm into an embryo and then transfers it to the uterus, there is no problem, and the same result was obtained in a legitimate way. Here, your solution is based on the reason, not on the basis of normalization and just to make people comfortable; Because maybe the Shariah has considered it expedient that people in some cases are tested for slightly difficult tasks.

Are the requirements of time and place that the late Imam raised for various issues such as playing chess considered as examples of the common law of jurisprudence?

Qasemi: If we understand the interpretation of the interference of time and space in Afta correctly, there is no problem in it; But if we interpret it in such a way that because people think like this, the fatwa should also be changed according to their thoughts, this is a departure from the rules of ijtihad.

However, if time and place affect evidence and ijtihad, in the sense that time and place can see the issues and their fulfillment outside, and rulings outside its crystallization, there is no problem.

In old jurisprudence, it is said that if there was a coupon wheat or a kilo egg at a time or place, sell it as it is. If the same statistics in another place and time become numerical sales, you do not have the right to sell kilos. Here, Shariah himself has allowed you to place the criterion in customs and places, and if they are moved, Shariah will not accept it.

The discussion of governmental jurisprudence is also the same. If the meaning of government jurisprudence is that tolerances are made without a valid and Shariah reason so that government rulings are closer to the people’s opinion, it is not acceptable; But if it means that in addition to the rights of the individual, which previously prevailed in the inferential aspect, we also consider the governmental and social aspects of the fatwa, it is correct, provided that we do not deviate from the rules and principles of ijtihad.

Doesn’t the theory of the authenticity of the established traditions lead to the secularization of jurisprudence?

Qasemi: Before paying attention to established custom, we must prove whether custom is independent and valid without Shariah confirmation or not? In the opinion of most of the jurists, the answer to this question is negative, in the sense that Sirah, because it is a presumptive proof and has an incomplete discovery, requires the interpretation and discovery of the Shari’s consent, either in the form of the Shari’s specification of his consent or simply his non-rejection.

Therefore, the reason of custom is completely different from the likes of independent rationality, which do not need to be confirmed by the Shari’ah for their validity. According to this article, the contemporary custom is not possible to be authentic; Because there is no contemporary with Masoum that we can discover the validity of the custom and his satisfaction towards that custom from his lack of deterrence.

What should we do if we doubt somewhere that we have become common or not?

Qasemi: If a person issues a fatwa and doubts whether or not it became customary, he should refer to this rule. The rule is that if he had proceeded according to the correct principles of ijtihad and the method of ijtihad, there is no objection; But if the rules of ijtihad and the inference of the Shari’i ruling were messed up, this is the same as customizing in the wrong sense. Even in cases where he doubts whether the correct method of deriving the jurisprudence has been followed or not, he should not issue a fatwa.

This article is part of the file “New Evidence in Contemporary Jurisprudence” and will be prepared and published in collaboration with Ijtihad Network.