Minimalist Fiqh, Instead of Jurisprudential Patchwork, Seeks Maximal Use of Contemporary Rationality!

Note: Hujjat al-Islam wal-Muslimin Dr. Ali Shafi’i has, for several decades, pursued second-order perspectives on the science of fiqh with a reformist approach. The former director of the Applied Fiqh Group at the Research Institute of Civilizational Islam, he is one of the serious proponents of the minimalist approach to fiqh—and indeed to religion. We spoke with him regarding the challenges of the minimalist approach to fiqh. In his view, many of these challenges are shared between the minimalist and maximalist approaches to fiqh. By setting forth three formulations of the minimalist approach to the science of fiqh, he sought to offer a precise view of this issue. The full text of Feqh-e Moaser’s exclusive interview with this professor and researcher of the Mashhad Seminary follows below:

Contemporary Jurisprudence: What is meant by the minimalist approach to fiqh with respect to which domains of human life fiqh intervenes in?

Shafi’i: The minimalist approach can be formulated in three ways:

The minimalist approach in its first formulation means a minimal, proportional/case-by-case intervention across all domains of human life: In this formulation, fiqh enters into all domains of human life—namely acts of worship (ibadat), transactions (muamalat), matters of marriage (munakahat), the settling of disputes (fasl-e khusumat), and so forth—but this entry can differ from one domain to another. For example, in acts of worship, fiqh has maximal involvement both in objectives and principles and in particular instances and subsidiary matters; whereas in transactions, marriage matters, dispute settlement, and so on, its involvement pertains to general principles, foundational rules, and objectives, while its involvement in the details is minimal, leaving the rest to reason (‘aql) and custom (‘urf).

The minimalist approach meaning the delegation of certain domains to contemporary rationality and customs: In this formulation, fiqh has jurisdiction over individual and devotional matters and personal status affairs, while the public and social sphere—referred to as the public sphere, the political sphere, and so on—is delegated to contemporary rationality and customs, of course while safeguarding the objectives and purposes (maqasid) of the Shari’ah; examples include the form of government, the organization of state administrative structures, banking, social and political security, international relations, and so on.

The minimalist approach in its third formulation means a most specific domain (qalamrow-e khass al-khass), in which the proper and original domain of fiqh has always been acts of worship, while its intervention in non-devotional matters has been incidental; and in the modern world, where human custom and rationality are capable of supporting non-devotional domains, there is no longer room for fiqh’s intervention—or, at most, fiqh may enter in an advisory (irshadi) capacity.

Each of these three formulations carries its own implications and consequences. I believe that the minimalist approach in its third sense contributes more effectively to sustaining the jurisprudential life of believers and to the continued vitality of fiqh as a religious science.

Contemporary Jurisprudence: Does the minimalist approach to fiqh mean maximal recourse to reason (‘aql) and the practice of rational people (sirat al-‘uqala), and a reduction in recourse to the texts? If so, given that ordinary, non-jurist people are also capable of understanding the ruling of reason and the practice of rational people, does any justification remain for people to refer to jurists (fuqaha) in order to understand the Shari’ah?

Shafi’i: Yes, the minimalist approach to fiqh means maximal recourse to contemporary rationality[1] and general customs, but it does not mean a reduction in recourse to the texts; for even in the current state of affairs, our recourse is to probable opinions (zunun), not to the texts themselves. Moreover, existing fiqh is not disconnected from past eras and has itself drawn nourishment from the rationality of those past eras.

The central question posed to opponents of the minimalist outlook and the contemporizing of jurisprudential rationality is this: what true and acceptable reasoning or justification exists for granting authoritativeness (hujjiyyah) to past eras while denying authoritativeness to the rationality of the present age? Can one speak of the contemporary rationality of Imam al-Sadiq (peace be upon him), or of Shaykh al-Tusi, and so forth, while refusing to accept the rationality of the present age?

Of course, it falls upon the advocates of maximalist fiqh to prove that their fiqh bears no relation whatsoever to past eras and is a science formed in a vacuum, in complete abstraction—a costly claim whose proof is neither possible nor reasonable.

But regarding the justification for referring to jurists: First, in Islam we have no principle called “the necessity of referring to jurists” such that we would now need to worry about a lack of such referral. This is precisely why jurists themselves, at the beginning of their treatises (rasa’il), write that every obligated person (mukallaf) must be either a mujtahid, a follower (muqallid), or must exercise caution (ihtiyat); and on the assumption that one is a mujtahid or exercises caution, referring to a class of persons called “mujtahids” has no meaning. Let me add to this the existence of an intellectual current known as the Akhbaris, who do not consider any recourse to non-infallible authorities to be legitimate—though this is not meant as a defense of Akhbarism, whose critique has been addressed elsewhere in its proper place.

Second, as stated, in the minimalist approach according to its third formulation, the domain of acts of worship remains a sphere outside contemporary rationality and customs, and recourse to mujtahids remains valid on the assumption that the obligated person is incapable of ijtihad or exercising caution. Moreover, fiqh can continue to function in other domains as a set of proposals offered to custom and rational people.

Third, recourse to a specialist in every domain persists despite the possibility of understanding the ruling of reason and the practice of rational people in that domain—meaning that, notwithstanding general public understanding, people still turn to specialists.

Contemporary Jurisprudence: Given that proponents of the minimalist approach to fiqh interpret nearly all matters of the Shari’ah in light of the practice and judgment of rational people, and that the general public also has the capacity to refer to this judgment and practice, what fundamentally was the philosophy behind the sending of the prophets?

Shafi’i: First: The question rests on unrefined presuppositions. The first presupposition is that the prophets came solely for the Shari’ah in the sense of fiqh; whereas, by the testimony of Quranic and prophetic teachings and the history of believers’ lives, the prophets brought messages for three dimensions of human life: the dimension of thought and belief, the dimension of ethics and meaning, and the dimension of fiqh and Shari’ah. The second presupposition is that the minimalist approach does not mean that all matters of the Shari’ah are rational or based on the judgment of rational people; rather, as explained at the outset, the minimalist approach has three formulations, and even the third, maximalist-leaning formulation does not claim this general totality.

Second: Recourse based on ijtihad and specialization will never become a general and universal possibility [for all people].

Third: Even assuming this point were to occur [i.e., that everyone could reach such judgments], the philosophy of the prophetic mission would have become generalized, not undermined or compromised—for the very principle is that the human being should make use of reason and, through this path, attain growth and elevation.

Contemporary Jurisprudence: Does the minimalist approach to religion not lead to the secularization of religion?

Shafi’i: In response to this question, one can offer both a refutational answer (pasokh-e naqzi) and a substantive/resolving answer (pasokh-e halli).

The refutational answer: Has religion not already become secularized? The moment religion is understood by a human being, it becomes secularized [in this sense]. When figures such as the late Motahhari speak of the “village jurist” versus the “city jurist,” or when the late Shams al-Din speaks of “jurisprudential self-evident truths” as opposed to “religious self-evident truths,” or when Abdolmajid Charfi speaks of the “Islam of jurists,” the “Islam of Black people,” the “Islam of Arabs,” and so on—is this not precisely what is meant? Who can deny the role that gender, temperament, and disposition play in understanding, in the modern world? Are these not instances of secularization?

Has the utilization of the element of expediency (maslahah) over these past few decades—contrary to its precedent in Shi’i fiqh—not led to secularization? Will the expansion of secular and contemporary legislative institutions, as experienced in the Islamic Republic, not lead to the secularization of fiqh? All of these developments possess the capacity to secularize fiqh, and indeed they are not merely inoffensive but praiseworthy, for they diminish the challenges and crises facing fiqh.

In light of these developments, it seems that the minimalist formulation of fiqh according to the third reading represents a movement away from jurisprudential patchwork and toward maximal utilization of contemporary rationality—a movement that, in its own way, can respond to critiques directed at the inefficacy of fiqh.

The substantive/resolving answer: If we understand secularization to mean the absence of God from the epistemic framework, then no—such a thing does not occur in viewing fiqh minimally. But if we understand secularization to mean that God has made human understanding of His teachings contingent upon the methodological soundness of the proof (hujjah), and therefore what we are confronted with is human understanding of religious teachings—then there is no problem with this.

Allow me to quote a portion of an unpublished essay of mine titled “Faith in the City”:

Harvey Cox, the American theologian, writes in the latest introduction to his bestselling and controversial book The Secular City—having previously addressed Ms. Armstrong’s formulation of “the death of God”—that: “Throughout the world, instead of ‘the death of God,’ what we see is the rebirth of gods and goddesses.”[2]

…Has “God become very distant from new life and no longer plays a role,”[3] or has He not only failed to become distant, but rather “come very close to worldly affairs and is present in all aspects of secular life”?[4] One expert rightly writes: “The views held by some classical sociologists, who claimed that the more modern a society becomes, the more religion diminishes or disappears… did not come to pass. For this reason, some authors have revisited the theories of classical sociologists… one should not speak with certainty of the elimination of religion and religiosity in the new world.”[5]

The world that we imagine is becoming secularized through the use of maximal rationality has, in fact, prompted others to recognize that it is actually becoming more divine—although, of course, the god of this world and the human being of this world are not necessarily identical to the god and human being of the pre-modern era.

Contemporary Jurisprudence: Proponents of the minimalist approach to religion, while considering the answering of many issues to fall outside the duty of fiqh, nevertheless take on positions such as religious authority (marja’iyyat), which require maximal responsiveness to people’s questions. How can this contradiction be resolved?

Shafi’i: First, assuming that such a person enters into a practical domain that is not actually consistent with their theoretical position, the problem is one of a mismatch between the domain of theory and the domain of practice—which does not necessarily invalidate their theoretical position. In other words, one must distinguish between the domain of practice and the domain of theory. Although the reasonable and logical expectation is that a person’s practice should follow from their theoretical position, this reasonable expectation is sometimes subject to necessities beyond one’s control. For example, in a society that is undergoing transformation and has not yet grown accustomed to minimalist fiqh, there is no way forward except to accept a religious authority operating within the traditional maximalist approach; yet in practice, an effort is made, in responding to followers (muqallidun), to refer them to non-fiqh domains, so that minimalist fiqh may gradually be reached.

Second, even minimalist fiqh itself requires an institution appropriate to it. In minimalist fiqh, it is not intended that religion be removed from its institutional form and that all epistemic domains become entirely personalized/individualized—for this is neither possible nor desirable. It is not possible, because it requires the allotment of time and the attainment of specialization, which is not achievable by everyone; and it is not desirable, because if we regard minimalist fiqh as fiqh reduced to matters of worship, this domain requires a certain degree of commonality or homogeneity in order for devotional cohesion to be established through it.

Contemporary Jurisprudence: What has been the experience of the minimalist approach to fiqh in Islamic and Christian countries?

Shafi’i: Of course, one should not, and cannot, draw a comparison between Islam and Christianity; for Islamic Shari’ah—unlike Christianity, which, if we do not say it lacks entirely what we refer to as Shari’ah, is at least in its traditional approach a voluminous and substantial body of law. In the Islamic world as well, although this notion of minimizing the entry of fiqh into the domain of human life and delegating customary and rational domains to rational people and customs has not yet been realized to the degree it should be, in certain countries where we witness a separation between fiqh and politics, or between religion and politics, this has not only produced no negative consequences for religion but, one might say, has actually earned it a measure of respectability.

Turkey may perhaps be regarded as such a country, where the government, by effecting this separation, has enabled the manifestations and expressions of religiosity within that society to display themselves quite well, thereby helping to attract and draw individuals toward religious observance.

[1] For a more extensive and precise discussion, refer to the book Akhlaq-e Ijtihad [The Ethics of Ijtihad] by Abolqasem Fanaei.

[2] Introduction to the new edition of the book: Cox, Harvey (2013). The Secular City: Secularization and Urbanization in Theological Perspective. Princeton University [Press].

[3] Karl Barth held this view. See: Nikpey, Amir (2019/1398 SH). Jame’eh-shenasi-ye Dindari [Sociology of Religiosity]. Tehran: Negah-e Mo’aser, p. 202.

[4] Sociology of Religiosity, p. 203.

[5] Nikpey, Amir (2019/1398 SH). Jame’eh-shenasi-ye Dindari [Sociology of Religiosity]. Tehran: Negah-e Mo’aser, p. 242.