Professor Sayyid Muhammad Ali Ayazi

The fiqh requires knowledge of psychology

We say from the words of the Qur’an; But we don’t talk about what is not said.

Why do most jurists use evidence such as the way of thinking, the discoveries of other sciences, the ruling of reason, and the purposes of the Shari’ah in jurisprudence arguments?

Prof. Ayazi: In this regard, we have a historical, cultural and methodological problem. In the field of history, it must be said that the Akhbarians covered the wide space that they raised in their criticism of ijtihad and rationalism in such a detailed and deep way that this issue still remains in the thinking of the fields. This thinking has caused jurists to pay less attention to the verses of the Qur’an. The late Tabataba’i writes in Volume 5 of Al-Mizan fi Tafsir al-Qur’an: If you look at the sayings of the jurists from the beginning to the end of jurisprudence, you will see that they make inferences without referring to the Qur’an. This is despite the fact that before the Akhbarites, the jurists’ encounter with the Qur’an was not like this.

It sounds that the problem of arguing with the Qur’an is the verification of its expression and implication, and not the problem of the reporting approach?

Prof. Ayazi: Not at all, these are news reports. We have many cases where the jurists turn the narrative upside down in terms of documents and brokers; But they do not pay attention to the verses of the Qur’an in relation to it; For instance, they did not pay attention to the fact that this narration is in conflict with the Qur’an or that it is not possible to assign the Qur’anic generality to this narration. These cases lead us to the point that historically we have had this problem.

The next problem: it is in terms of method. Here we have two matters: one is that jurisprudence has generalities that do not match the objectivity of the issue. When l went to Ayatullah Muntazeri to start the discussion of the principles, he did not accept and considered the inflation of the science of the principles and the gap between its content and the authority of inference as the reason.

As an instance, one of the issues of knowledge of principles is that the subject of ruling must be taken from custom. When the subject has changed, the verdict is no longer the same as before. For instance, one must ask the jurist what is the definition of marriage today and what was it in the opinion of the old jurists? In the past, dowry was considered as dowry, and processing dowry meant possessing dowry. Now the question is, must a woman obey whenever a man wants? In existing jurisprudence, the answer is yes; But this is not the case in today’s society, but today’s custom sees marriage as a shared life, not just buying and selling a couple. For this reason, issues like leaving home and education have also been changed. Nowadays, if a Marja’ marries his daughter to someone and that person prevents her from going to her father’s house, does he not say that he is wronging her? The same issue exists regarding compliance; Thus, in the science of principles, it is said that the matter must be taken from custom, but when we refer to jurisprudence, we realize that this is not the case.

It is true that the subject does not change; Rather, it is the conditions and complications that have changed. Obedience is the same; But it is the limits and gaps that have changed.

Prof. Ayazi: No, at that time, marriage meant buying and selling commodity; But today, marriage is a covenant to commit to a joint life, so the issue has fundamentally changed.

Another instance is in the title of Saghira (little girl), where all jurists consider the age of consent to be 9 years old, although they also consider marriage before that age to be permissible. But is marja’ now ready to marry his 13-year-old daughter to someone? In the common understanding, such a girl is a child; But in jurisprudence, they do not consider her as minor; Thus, our jurisprudence has moved away from its social realities. Of course, these are not the only bases that you have raised that need to be tested in contemporary jurisprudence; Rather, things like the absence of injustice must also be considered in the fatwa, or according to the late martyr prof. Mutahhari, justice, or according to Ayatullah Muntazeri, the principle of human dignity, or according to Fazlullah, the principle of human free will. These principles precede all arguments. Of course, in my opinion, these points exist in the mentality of jurists; But in practice, they do not interfere.

The third problem is that, unfortunately, our jurisprudence today is imitative and does not go out of its framework to investigate issues.This is while the late Ayatullah lsfahani brings up inherent beauty and ugliness in the margins of al-Kefayeh book and considers it valid; It means that something may be ugly one day and not another day. The late Ayatullah Tabataba’i also has the same issue. This is very obvious and it is clearly seen in the issue of slavery.

The late Ayatullah Sadr criticizes this theory that it is possible for Shari’ah, who is the head of the wise, to understand something that the wise do not understand; Thus, it is not necessarily the case that the Shari’ah thinks and gives an opinion in line with the intellect.

Prof. Ayazi: This article of his is not true, because first of all, if the leader is rational, then he cannot bring an act of devotion; Rather, he must bring a point that can be understood rationally. Of course, in devotional matters, he can bring irrational content, but in rational matters, he cannot say anything against the opinion of rational people.

Your statement that Allah must think like us in rational and non-devotional matters and He certainly thinks and acts like us, in fact, is limiting Allah, which does not seem right.

Prof. Ayazi: The divine essence is not limited to our understanding and is the head of reason, but it must not say something that we do not understand; Rather, He must speak in such a way that we understand.

It is in the position of speaking that the Shari’ah must speak in a language that people understand and be emanated, while talking is not in the position of proof; Rather, it is the basis of proof discussion, which means, does the Shari’ah think like a rational person in the position of falsification and legislation or not?

Prof. Ayazi: No, it is the same in the legislation. When the Shari’ah wants to make a law, it must speak in such a way that they understand rationally; thus, if because of an unseen point, he gives a verdict contrary to the rational opinion, the rational people are not obliged to act on it, if when he talks in the verses of attributes and beliefs, we base our actions on what we understand and we are not obliged to do more than that. It must be like this in Shari’ah rulings as well, therefore, it is not in Allah’s dignity to do something that is beyond our understanding.

Is it possible to consider one of the few reasons why jurists use non-verbal evidence in inference operations to be the rare jurisprudential results that are obtained by acting on this verbal evidence?

Mr. Ayazi: Basically, the problem is in two things: either these topics have not been given their due and they have not been discussed in a proper and appropriate manner, or their limits and weaknesses have not been determined. For instance, they have basically eliminated the discussion of analogy, while the analogy of priority and analogy of Mansoos al-Ala or induction and frequency are all part-to-part and knowledge-bearing. In the last 100 years, the topics of causes and intentions have been discussed among jurists, while it has not been discussed in the knowledge of principles and has no limits.

Another point that exists is the application of the Qur’an’s statements that are being discussed; But there is no discussion of what the Qur’an did not say. For instnce, this question is raised, why the rulings that now is in dispute, such as the equality of dowry between Muslims and non-believers, or the specific rulings of women regarding inheritance or other matters, have not been mentioned in the Quran? It is not necessarily the case that the Qur’an would have been 100 volumes, because instead of telling the story of Prophet Moses 52 times, Allah could have reduced it once and stated the verdict of these cases. By not saying it, it is clear that what he didn’t say was basically not what he meant and it wasn’t fake, so he didn’t say it. Today, rational people argue that if something is not said, then it is not meant.

The reason for some non-processing of new topics and evidence is that it is not regulated, while it is the opposite. In the instance of 4 Farsakhs, which is accurate, for instance, how much difference is there, while the route of the day or the narrations of the day and the night are 4 Farsakhs at that time. A cubit is this much, and with this calculation, is it another amount?

Also, one of the reasons for not paying attention to new evidence, such as intentions, is that jurisprudence becomes new, but what is the problem if jurisprudence becomes new? They don’t want to take the trouble of giving rules, and since only the same rules have been proposed before, they repeat them back and forth. These misplaced fears and terrors have caused them not to address new evidence and new issues, or even not to mention the Qur’an.

There is also the problem of the conflict between tradition and holiness, which has caused problems.

Thus, today’s jurisprudence has a psychological problem and it does not have the courage it must have, and it does not enter in the face of these issues as it must. Then we create a problem for the people and we don’t see whether this fatwa solves the problem or increases the problem. For instance, after a month of fasting and worship, we take away the sweetness of Eid al-Fitr from people with these different fatwas, so that in the same house, fasting is obligatory for one person and forbidden for another.

Today’s jurisprudence is not an ultimatum, that is, sometimes the fatwa leads to the cancellation of the ruling, which results in the non-implementation of the ruling, and sometimes it becomes meaningless. The late Mutahhari writes about the commandment of the famous and the prohibition of the negation, that if his logic is not followed, it will have the opposite effect. Its logic is the realization of the legal goal, so they have proposed the effect for this reason. They give an instance that they saw that gambling among women has increased in America. In numerous meetings, sociologists and pastors came and set meetings that this must not be done; But it had no effect. Then a group came and checked and saw that they were unemployed, so jobs were created and they came out of unemployment and saw that after two years, this issue was basically solved. It is well-known that it has logic and must be effective. In the case of fatwa, there must be logic. It is the same issue regarding veiling, the fatwa on the obligation to wear the hijab, if its logic is not followed, it will work in the opposite way and the fatwa will become meaningless; Thus, if our jurisprudence cannot solve these problems, jurisprudence will become impersonal and isolated.

Can it be considered one of the few reasons why jurists use the results of other sciences in jurisprudential inferences is the idea of superiority of jurisprudence over other sciences from their point of view?

Prof. Ayazi: Here are three points:

The first point is the personal psychology of the jurist. According to Martyr Mutahhari, a rural jurist and an urban jurist, their fatwas are different. In terms of psychology, the personality of the jurist is influential in his fatwa.

The second point: social characteristics are in Qum and Najaf, which are not included in this area. If we consider these conditions to be influential, the issue is different. For instance, the author of the book al-jawaher was a great Arab jurist, and he was very sensitive to non-Arabs. In the case of Shaykh Tusi, he elaborates that this is the jurisprudence of non-Arabs. This foresight that he sees in himself is influential in the type of reasoning and its result.

Third point: Jurisprudence also needs psychology just as it needs to refer to words, principles, logic, board and astronomy. For instance, we have about Zayd Shaham, who, because he was a tallow seller, presented the rulings in a special way. In issues such as ruling on transgenders and bisexuals, the jurist’s referral to psychologists will change his fatwa.

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