Note: Hujjat al-Islam wal-Muslimeen Gholam-Ali Masoumi-Nia, in addition to teaching and researching in the field of Islamic economics for several decades, has also seriously entered the field of research on the subject of “Economic Democratization” (Mardomi-sazi-ye Eqtesad) for several years. We discussed the jurisprudential challenges of economic democratization with him. He considers many of these challenges to be, in reality, “pseudo-challenges” rather than real ones. For example, he does not regard the rejection of intellectual rights in some jurisprudential opinions as necessarily an obstacle to economic democratization; rather, on the contrary, according to some economic theories, he considers it a cause for the growth of the popular economy. The detailed exclusive interview of Contemporary Jurisprudence with this prominent professor and researcher of Islamic economics is as follows:
Contemporary Jurisprudence: Is economic democratization fundamentally possible with a “Minimal Jurisprudence” (Fiqh-e Hadaqalli) approach?
Masoumi-Nia: It is necessary first to clarify the meaning of “Minimal Jurisprudence.” If the intent is that jurisprudential rulings have no relationship with each other, its falsity is clear. When the pressure of governments on the Shiite community increased, the inevitable result was that jurisprudence became more confined to individual rulings, but the relationship of these very rulings with each other is very clear. For example, the rulings stated at the very beginning of the compilation of jurisprudential books regarding usury (Riba) and related issues form a connected and coherent set.
If the intent of being “minimal” is that jurisprudence has nothing to do with the administration of life, it is contrary to self-evidence; because there are numerous undeniable rulings in various chapters of jurisprudence that express different relationships of life in various fields.
Some critics hold that “The science of jurisprudence is a minimal science; meaning it states the minimum of rulings. Rulings that are necessary for resolving hostility and nothing else; not that it teaches the maximum of what is necessary for administering life” (Soroush). The answer to this view is also clear. The goal of jurisprudence is stating divine limits in all individual and social fields of life, considering the worldly and otherworldly interests (Masalih) of humans, and this matter is completely evident with a passing glance at jurisprudential chapters. The objector has equated jurisprudence with law (Huquq), while they have many differences. It is clear that many jurisprudential rulings are also applicable for resolving hostility, but this is only one of its fruits.
Some claimants of “minimal religion” in the arena of jurisprudence say that the science of jurisprudence is not “rights-oriented” (Haqq-madar) but “duty-oriented” (Taklif-madar). This matter causes me to say that jurisprudence cannot provide solutions in fields such as economics.
The truth of the matter is that the objector has seen one side of the issue. Right and duty are inseparable from each other. When a person’s duty towards another person is stated, it means that the other party has a right. In logical terms, duty and right are two correlative concepts (Mutazayif). All of us have both rights and duties towards others; for example, in jurisprudence, numerous duties have been stated for an individual regarding another’s property. This means stating the rights of the property owner.
Contemporary Jurisprudence: Can the science of jurisprudence, which considers its mission to be an otherworldly matter (finalization and excusing – Tanjiz and Ta’zir), offer a theory and approach such as “Economic Democratization” for improving people’s economy in this world?
Masoumi-Nia: A) The question is problematic. Finalization and excusing are from the aspect of the inferred ruling’s conformity or non-conformity with reality. If the inferred ruling is in accordance with reality, it is finalizing (Munjiz); and in case of opposition to the matter-in-itself (Nafs al-Amr) and the Preserved Tablet (Lawh Mahfuz), it will be excusing (Mu’azzir).
B) Based on this, finalization and excusing are not synonymous with jurisprudence being otherworldly. Inferred worldly rulings are also either finalizing or excusing, in the same sense mentioned; meaning they are either in accordance with the real ruling enacted by the Lord, in which case they will be finalizing, or they are not in accordance, in which case they are excusing. At this stage of the discussion, the statement of the Holy Quran: “And there is for you in legal retribution [saving of] life” can be considered a worldly ruling (although its being merely worldly is debatable) that is finalizing, because it is both definitive in chain of transmission (Qat’i al-Sanad) and its indication is clear. Evidences indicating the number of Tasbihat in prayer express an otherworldly ruling, some of which are finalizing and some excusing. Some conjectural rulings of transactions which have both worldly and otherworldly aspects are also either finalizing or excusing.
C) Interestingly, some, contrary to the aforementioned doubt, consider the science of jurisprudence a worldly science. Ghazali says, “Jurisprudence guarantees the preservation of essential worldly interests, namely the preservation of life and lineage,” and places all Verses of Rulings (Ayat al-Ahkam) within this framework. He places verses of sale, usury, debt, inheritance rulings, causes of maintenance, division of spoils and Zakat, manumission, writing (Kitabat), enslavement, and captivity in the section of preservation of life; and in the section of preservation of lineage, he brings verses of marriage, divorce, return (Ruju’), waiting period (Iddah), Khul’, dowry (Mahr), Ila’, Zihar, Li’an, and prohibitions due to lineage, affinity, and nursing. He also places rulings of fixed punishments (Hudud), fighting (Qital), expiations (Kaffarat), blood monies (Diyat), and retribution (Qisas) in the section of repelling corruptions; because they deter the repetition and promotion of related corruptions.
D) The truth is that both notions are incorrect. Based on the undeniable texts of the Book and Sunnah, Islam seeks happiness in this world and the hereafter, and has stated all doctrinal teachings, moral instructions, and rulings based on this. With a passing reference to the texts, this matter becomes very clear. For example, regarding the prohibition of usury, both severe otherworldly punishments have been mentioned and its destructive effects on social life have been emphasized.
In a popular economy, people are producers, entrepreneurs, investors, consumers, and decision-makers. The democratization of the economy has many dimensions. In jurisprudence, many issues are raised in this regard that prove the aforementioned claim. Some of these issues are:
Many narrations have been transmitted that consider hiring oneself out as a worker to be reprehensible (Makruh); such as the narration:
From Abu Ja’far (PBUH) who said: “Whoever hires himself out has indeed prohibited sustenance for himself. And how does he not prohibit sustenance for himself when what he obtains belongs to the master of his hire?”
In this narration, it is clear that the Imam (PBUH) pointed to a worldly effect, which is that one who hires himself out has transferred the result of his work, which is his right, to his employer. On the other hand, in no narration has hiring oneself out been recommended. We examined this issue in detail in an article.
The existence of three types of ownership in jurisprudence, namely private ownership, public ownership, and state ownership regarding Anfal and the like, also paves the way for the maximum presence of people in the economy.
Contemporary Jurisprudence: One of the requirements for encouraging people to invest in the economy and production is recognizing “Intellectual Rights” in the science of jurisprudence. Is economic democratization fundamentally possible with the popular view of jurists regarding the non-acceptance of intellectual rights such as copyright, etc.?
Masoumi-Nia: Investing in research is one of the requirements for investment development. New research leads to the improvement of production methods and increased labor productivity, and consequently leads to increased investment returns. It seems that protecting intellectual rights and property such as copyright, trade secrets, patents, industrial design rights, etc., is one of the important facilitating factors for such a matter. The reason is that intellectual property rights both enable innovators to increase the level of investment and increase their motivation to help economic growth and make new innovations. The mentioned question is designed based on this analysis, but it is necessary to know that this is merely one opinion. In contrast, there is a view that considers the recognition of intellectual rights as a decelerator of investment growth and the economy. The reason for this is that recognizing intellectual property prevents the dissemination of knowledge and deprives many entrepreneurs and countries of new innovations. The result of this is an ever-increasing gap between them. In truth, excessive protection of intellectual property leads to the intensification of monopolies. Numerous empirical works have also been conducted in this regard. Based on this, it cannot be said that the non-acceptance of intellectual rights hinders the democratization of the economy. In other words, excessive emphasis on recognizing intellectual property becomes one of the important elements strengthening the capitalist structure of the economy and the aggrandizement of capitalists.
In practice, the right of innovators is usually given quite incompletely. The major part of innovations is registered in the name of companies and organizations, not the innovating researcher; therefore, a type of exploitation takes place. Opposition to intellectual property has appeared in many studies and numerous arguments have been mentioned for it. [1]
Another important point is that the innovator has the possibility of using their innovation in any case, and naturally, before others use it, they derive sufficient benefit from their innovation themselves. Based on this, according to the popular fatwa of jurists, economic activists have the motivation for innovation, and economic democratization is not threatened from this area. Finally, it is reminded that it seems necessary to distinguish between types of intellectual property: cases where we face researchers’ innovations, a researcher has written and published a book or article or invented a method for their own individual economic activity, and cases where we face institutions’ innovations through hiring researchers.
Contemporary Jurisprudence: One of the requirements for encouraging people to invest in the economy is seriously combating corruption and rent-seeking (Rant). Considering the popular fatwa of jurists regarding the non-prohibition of bribery (Irtisha) in non-judicial matters, is economic democratization fundamentally possible?
Masoumi-Nia: Regarding the generalization of the prohibition of bribery to non-judicial matters, two views are raised in jurisprudence:
First View: Shahid Awwal in Durus (Vol. 3, 172), Muhaqqiq Karaki in Jami’ al-Maqasid (Vol. 4, p. 36), and others have defined bribe (Rishwah) as money given to a judge to rule falsely. Shahid Thani in Masalik (Vol. 13, p. 422) and Sahib Urwah in Takmilah consider a bribe to be money given to a judge to rule unjustly in favor of the giver.
Second View: Some jurists consider bribery to include giving money to both a judge and a non-judge. The late Naraqi in Mustamad (Vol. 17, p. 70), Muhaqqiq Khoei in Misbah al-Fiqahah (Vol. 1, p. 263), and the late Golpaygani in Kitab al-Qada (Vol. 1, p. 240) consider a bribe to be money given to a judge or government officials to perform a task for him. Ayatollah Sobhani has stated: When the meaning of a bribe is that which the briber resorts to for invalidating a right and reviving a falsehood, there is no reason for us to restrict bribery to the chapter of judgment; rather, it includes the judge, the ruler, and other government officials as well. As became clear from the expressions of Ibn Idris and Sheikh Tusi, these noble figures have conjoined the ruler and officials to the judge. Nothing is understood from this conjunction except the generalization of the prohibition of bribery; rather, it encompasses all those who, by taking bribes, intend to revive falsehood and invalidate the truth. The primary criterion in the prohibition of bribery in non-judicial matters is the oppression of individuals and the violation of others’ rights:
“…And you have known in the words of Sheikh and Ibn Idris the conjunction of the ruler and the worker to the judge; rather, it encompasses what is paid to an employee or a powerful oppressor, to use it to erase a right or revive a falsehood or rule by the truth in such a way that without it, he would not have ruled.”
The late Ayatollah Fazel Lankarani also states: “In addition to what is obtained from some narrations, it can be said that customarily as well, the generality of the meaning of bribe is associated in the mind from the meaning of bribe, and its inclusion even in the non-judicial chapter can be used from the narrations.” (Tafsil al-Shari’ah, Kitab al-Qada wa al-Shahadat, Vol. 15, p. 32)
The result is that those who argue for generalization are not few, and based on the first view, “bribe” does not apply, but any case where money is given to violate others’ rights is an instance of the “prohibition of consuming property falsely” (Hormat-e Akl-e Mal be Batil), and based on this very principle, a ruling of prohibition is issued. The common understanding of “falsehood” (Batil) is customary falsehood, and such cases are instances of customary falsehood.
Contemporary Jurisprudence: One of the requirements for encouraging people to invest in the economy is seriously combating law evasion and violation of the law. Considering the popular fatwa of jurists regarding the absence of absolute prohibition of opposing the law and restricting it to various conditions such as prohibition of opposition in case of causing harm to the violator or prohibition of opposition in case of the law’s agreement with the fatwa of one of the jurists, is economic democratization fundamentally possible?
Masoumi-Nia: Generally, contemporary jurists consider acting according to the law as obligatory; based on this, there is no problem from this area facing economic democratization. For example:
Ayatollah Khamenei: Violating the laws and regulations of the Islamic system is not permissible.
Ayatollah Safi Golpaygani: Following laws and regulations, if they are not contrary to the holy Shari’a, is necessary.
Ayatollah Nouri Hamedani: Violating the regulations of the Islamic system is not permissible.
Ayatollah Makarem: Following the governmental decree (Hukm-e Hikumati) of the Guardian Jurist (Wali-e Faqih) is obligatory for everyone.
Ayatollah Sistani: Opposing the law per se is not haram, but Ayatollah Sistani does not permit it, except within limits where the government and relevant officials practically show negligence.
Interestingly, one of his followers asked: “I live in Finland. Since my spouse is a student, our income is low and does not suffice for living, and I do not have permission to work legally; therefore, can I work without informing the government?” He replied: “If it is contrary to the laws of that country, it is not permissible.”
Contemporary Jurisprudence: Do we need Governmental Jurisprudence (Fiqh-e Hikumati) or Social Jurisprudence for economic democratization?
Masoumi-Nia: We define Governmental Jurisprudence versus Individual and micro-view jurisprudence as macro-view, systematic, and governmental jurisprudence. It is clear that to achieve the complete result, we need systematic jurisprudence, but in the case of the dominance of the individual jurisprudence view, popular models can also be implemented at a limited level. Throughout the history of Islam, in many cases, Islamic scholars have been the axis of popular activities, and people, trusting religious elders, have done great works whose fruits are still tangible in many lands.
Contemporary Jurisprudence: One of the requirements for encouraging people to invest in the economy is seriously combating corruption and rent-seeking. Considering the popular fatwa of jurists regarding the non-prohibition of information rent (Rant-e Ettela’ati), is economic democratization fundamentally possible?
Masoumi-Nia: Initially, two of the definitions presented for information rent are recounted:
Information rent means: “Accessing a set of exclusive information obtained without competition with others, leading to earning windfall and non-productive income” (Kazemi, 2004, 55).
Information rent means access to information possessing economic or political value at a specific time and abusing it for personal, group, or partisan purposes. Those who access this information sooner than others enjoy a rent based on which they will be able to enjoy huge benefits; such as holders of information related to government currency decisions, decisions related to import and export control, information related to the stock market and company shares, information related to contracts, projects, tenders, auctions, government decisions in specific cases such as closing economic units for environmental reasons, information related to municipal decisions regarding changing urban land use, etc.
It is unlikely that a jurist has given a general ruling for non-prohibition. Even if, assuming the impossible, such a thing had been realized, it would be a subject of reflection; because the subject of economic rent and information rent itself has numerous facets and branches, each having its own ruling, and a single ruling cannot be issued for all. For example, can cases where economic activity based on information rent causes harm to others be considered religiously permissible? In the story of Samrah, harming the Ansari man was only the annoyance of him and his family; now, in cases where using a rent causes billions in harm to the economy and people, is it permissible? Of course, in cases where the rent itself is natural and has no negative consequence, it is different.
[1]. For example, refer to the article: Martin, Brian, translated by Mahmoud Hekmatnia and Ali Taghikhani, “Against Intellectual Property,” Journal of Economic Law, No. 10, December 2006, pp. 161-190.