Note: The right to human equality, contrary to its appearance, which seems a newly emerged challenge in the knowledge of fiqh, is an ancient challenge of this knowledge. Every time someone speaks of the reason for the difference in rights between infidels and Muslims or highlights the duality of various rulings for women and men, in truth, they have expressed the reason for the non-acceptance of the right to human equality in the knowledge of fiqh. Is this non-acceptance truly a kind of challenge? And if so, is its resolution dependent on changing jurisprudential propositions or changing the foundations and presuppositions and approaches to this knowledge? Hujjat al-Islam wal-Muslimeen Mohammad Kazem Haqani-Fazl, who has both taught and researched fiqh for years and has studied kalam academically, seeks to answer this question in this exclusive note. The full text of the note by the director of the Encyclopedia of Contemporary Jurisprudence is presented to you:
Perhaps one can trace in the contemporary history of Iran and in the constitutional affair the main turning point that caused the separation of the two lines of constitutionalists from the day when the “principle of equality of all individuals before the law” was raised. Sheikh Fazlollah Nuri, who was considered the foremost scholar of Tehran, separated his path from the two Sayyids and demanded constitutionalism with the attribute of being conditioned by sharia. The sheikh said that for the constitutionalists this principle is the most important principle of constitutionalism, in such a way that if this principle does not exist, there will be no constitutionalism, even if they accept all other principles; and if they accept this principle, constitutionalism will be realized even if they do not accept the other principles. The sheikh had no compatibility with this principle. In the view of the sheikh and many other jurists, this principle was incompatible with the entirety of Shiite fiqh.
With an interval of approximately one hundred years, another fiqh-researching sheikh in the Qom seminary, which is only a short distance from Tehran, published a book with the aim of studying the position of human rights in Shiite fiqh under the title of Haq al-Nas, and once again repeated the words of Sheikh Fazlollah Nuri. He, like Sheikh Nuri, viewed the “principle of equality of all individuals” as in conflict with the sharia, but considered the sharia intended by the sheikh to be a historical sharia, and for this very reason stood exactly at the opposite point of Sheikh Nuri and defended the right to equality and in fact took the side of constitutionalism; whereas the followers of Sheikh Nuri’s thought still persist on the other side of the field in the same understanding of sharia that Sheikh Nuri presented.
From the perspective of these two sheikhs, both of whom claim ijtihad, absolute equality and the equal legal right of individuals cannot be reconciled with the existing fiqh by any justification; from the first rulings in acts of worship to the most important political rulings, rights and obligations vary among different individuals.
In Islamic fiqh, women do not have the right to divorce but men do, a woman cannot be the imam of congregation for a man, a woman cannot be a marja’ taqlid or a high-ranking official in a political system, the blood money of religious minorities is different, the blood money of a woman is less than that of a man, slaves and maidservants have much fewer rights than free citizens, the testimony of women in court is less valuable than the testimony of men in the same court, inheritance also differs among them, a woman has little right over her children and all authority over children who are the joint product of a marriage is in the hands of fathers, and even if the father is not alive, the paternal grandfather has rights from which the mother is deprived. If someone is not a follower of one of the religions endorsed in Islam, they enjoy almost no rights, but rather in some cases it can be said that their property and life are not respected. Someone who changes their religion and leaves Islam has a different ruling from someone who changes their religion and enters Islam, girls need their father’s permission for marriage but boys are completely autonomous. Until recently, many jurists were even opposed to women voting in an ordinary election, and it is not far-fetched if someone claims that such jurists still exist in the corners of the seminaries. From the perspective of a group of jurists, governance is the exclusive right of jurists and others have no right in it, judgment in sharia is only in the hands of mujtahids and scholars of law at any rank have no right to judge, and so on.
Some of these fatwas go beyond the famous ones, accompanied by the consensus of Shiites and even the consensus of Muslims, and some are explicitly mentioned in the text of Quranic verses. The difference in inheritance between women and men is not an issue that can be referred to the basis of this or that jurist, but rather an explicit Quranic verse is the evidence for this fatwa. The rulings on slaves are considered among the obvious rulings in Islam that were clearly practiced in the conduct of the Prophet, the Imams, and the companions of the Prophet. How can one, relying on the same religious text, change the rulings on slaves and extract equal rights with free citizens for slaves from the religious text?
The differences mentioned and the greater differences not mentioned are only the tip of the iceberg of the challenge of accepting the right to human equality in Islamic fiqh. In fact, if a jurist dreams of reconciling human equality with fiqh, they will have a very difficult task ahead and it is not such that they can achieve anything by changing the interpretation or a few jurisprudential rules.
Every fiqh researcher clearly knows that a fatwa always feeds from two sources: the source and the jurist’s intellectual principles. The difference in fatwa roots in the difference in source, difference in view of the source, and difference in methods of referring to the source. Therefore, if someone seeks a fiqh compatible with the right to human equality, they must seek a rereading of the sources of fiqh and the intellectual principles of jurists, the same as what Mohsen Kadivar calls ijtihad in principles.
Mohsen Kadivar is the same sheikh who, one hundred years after the sheikh advocating conditioned constitutionalism, once again emphasized the incompatibility of human equality with Islamic fiqh and, like the advocates of conditioned constitutionalism of that day, announces that accepting human rights means setting aside significant parts of the prevailing fiqh. With this difference that Kadivar seeks a rereading of fiqh to make constitutionalism conditioned by sharia like Sheikh Nuri but with a sharia that is newly read and fatwas that, relying on the religious text, are also compatible with the right to human equality.
This path, as he himself has asserted and emphasized, is a path based on change in principles. These principles go beyond the principles of prevailing fiqh and lead to the premises of fiqh.
For rereading fiqh in line with harmony with the right to human equality, more than relying on interpretative fiqh, one must take refuge in fiqh of rationales and maqasid-based fiqh, and this is just the beginning of the story! Because in Shiite fiqh, both of these fiqhs have almost no defenders, and whoever wants to raise the banner of these two fiqhs will be described by the majority of jurists as heretical and at least ignorant and unaware of the principles of jurisprudence.
The irony is that the story does not end here; because accepting fiqh of rationales or maqasid-based fiqh is a kind of change in the foundations of the existing fiqh. Such a fiqh is a new fiqh that can no longer be called Jawahiri. The necessity of being rationale-centered and goal-oriented is to view the religious text as historical.
To reach such a fiqh, the jurist must first settle their account with the source of ijtihad and the religious text; is the source of ijtihad limited to these existing sources with the same prevailing ratio? Can one create expansion in the scope of argumentation to reason and reliance on rational foundations? Does one recognize the main texts of religion (Quran and Sunna) with the same apparent meanings for all times or interpret the text in interaction with the context’s ecosystem and consider the text colored by the environment? And can one extract the rationale and purpose of the ruling from this historical text? If not, how can one open a path to “legal equality of all humans” in the face of ignorance of the rationales and purposes of rulings, while the entire religious text is filled with legal and obligatory differences among various individuals?
More important than the historicity of the religious text is that historical viewing of the Quran and hadith also challenges the discussion of the scope of the knowledge of the Prophet and Imam; because the jurist must answer why the legislator, knowing that for many centuries Muslims must refer to the same text, has not tried to speak a bit more clearly and light a lamp for the future generations?
Another challenging foundation in this discussion is our expectation from sharia. The question to the equality-advocating jurist is why sharia should accompany the right to human equality? Should the obligated ones determine which way sharia should go, or is it the legislator who lays the tracks based on the purpose they have?
The general characteristics of sharia as part of the theological premises of fiqh is another challenge that must be considered in this issue. In fact, if we consider sharia to be just and rational and then measure justice with the criterion of rational understanding, the view we will have of sharia will be very different from the view of past jurists. And if we try to issue a jurisprudential fatwa with rational justice, we must clarify why what has come in the religious text, whether Quran or hadith, is not compatible with this rational justice. And again, in a cycle of thought, the historicity of religious propositions returns to the foundations of fiqh. Jurists and fiqh researchers need resolve to untie this knot that has been closed for a hundred years.