Note: For a long time, religious intellectuals and modernists have supported a minimalist approach to jurisprudence and its non-intervention in all spheres of human life. However, the minimalist approach to jurisprudence is not exclusive to intellectuals and modernists and has a history among jurists as well. The question now is whether the viewpoint of intellectuals and minimalist-thinking jurists is the same, or whether there are differences in their methodology and type of perspective on the minimalism of the science of jurisprudence. Hujjat al-Islam wal-Muslimin Mohsen Mohajernia, a faculty member of the Islamic Culture and Thought Research Institute, answers this question in this oral note for Contemporary Jurisprudence.
Conceptualizing Minimalist and Maximalist Jurisprudence
When we speak of maximalist jurisprudence, its opposite is minimalist jurisprudence. This is a foundational principle that has existed since old times and is not specific to the present era. This discussion existed in traditional jurisprudence, and these two theories were present, with some jurists considering jurisprudence to be minimalist and others considering it maximalist. Now the question is, what do minimalist and maximalist jurisprudence mean? Minimalist jurisprudence does not consider jurisprudence to be in charge of designing the human lifeworld (lebenswelt), nor does it believe that jurisprudence is the law of Islam and the law of God covering all dimensions; rather, it says jurisprudence is merely a law; but this law operates within a specific scope and in specific domains. From the beginning, jurisprudence was not founded to encompass all domains; for example, to be responsive to the domain of politics with all its components, or the domains of culture, economics, and social affairs; even when interpreting the verse “a clarification of all things” (Tibyānan li-kulli shay’), it says it is not the case that “a clarification of all things” includes all spheres of human life; rather, it includes only matters related to the guidance of humans. For instance, it is not responsible for explaining what elements a rock is composed of, as this has no connection to the science of jurisprudence at all. Therefore, minimalist jurisprudence in this sense means that jurisprudence is not in charge of administering and managing human political, social, and economic life; rather, it intervenes only in a specific domain traditionally referred to as hisbah. Hisbah refers to matters that the Lawgiver (Shari’) or God is not pleased to see abandoned; they are considered among the essential affairs of society, and therefore someone must be responsible for carrying them out.
In contrast to the minimalist approach to jurisprudence, maximalist jurisprudence believes that jurisprudence has come to administer all aspects of human life. In other words, jurisprudence has come to establish governance in human societies. What is presented as governmental jurisprudence (fiqh-e hokumati) or sovereign jurisprudence (fiqh-e hakemiyati) also pursues this purpose; meaning, jurisprudence has come to undertake the administration of society in political affairs. Sovereign jurisprudence is, of course, higher than governmental jurisprudence. The sovereignty of jurisprudence means that jurisprudence seeks to administer all aspects of human life; a sovereignty above which there is no higher power, and which ultimately connects to divine power.
The Minimalist Approach is Not Exclusive to Intellectuals
The minimalist approach to jurisprudence is not exclusive to intellectuals, nor is it even exclusive to the post-Islamic Revolution period; rather, these two approaches to jurisprudence existed even before the Islamic Revolution. This discussion is an intra-jurisprudential and intra-religious one. Even before the Revolution, those who believed that jurisprudence lacked the capability to administer society and could ultimately only supervise governmental affairs to prevent potential violations of religious law (shar’) held this same minimalist view.
Of course, it cannot be denied that the minimalist view of jurisprudence has many proponents among intellectuals. They have repeatedly and explicitly stated that jurisprudence has not come to administer society, legislate, and manage human social life; rather, it can only organize the individual aspects of his life.
We, of course, do not agree with this approach and believe that the science of jurisprudence articulates the religious rulings (ahkam-e shar’i) for all spheres of human life; whether these spheres pertain to his individual life or his social and political life; jurisprudence has rulings for all these spheres.
The Difference in Perspective Between Intellectuals and Jurists in the Minimalist Approach to Religion
In addition to intellectuals, some of our jurists have also advocated a minimalist approach to jurisprudence; however, their perspective differs from that of the intellectuals. Intellectuals, with an extra-religious view of the science of jurisprudence, consider it minimalist, whereas jurists, with an intra-religious and intra-jurisprudential view and by considering the proofs (adillah), sometimes arrive at the belief that jurisprudence is not responsible for matters of governance and politics. Therefore, although these two may at times reach the same conclusion, the angle of their view and the type of their approach to the science of jurisprudence differ from one another.
A Third Approach Between Minimalism and Maximalism
The approach to the science of jurisprudence is not limited solely to minimalism and maximalism; rather, there also exists a middle approach in between, which neither fundamentally denies the intervention of jurisprudence in political and social affairs, nor advocates for the presence of jurisprudence in all spheres of human life.