Note: “Minimalist Jurisprudence” and “Maximalist Jurisprudence” (Fiqh-e Hadaqsari) are two terms used so frequently that even non-experts in jurisprudence use them. The maximalist approach to jurisprudence seeks to discover all rulings for the day’s issues of society from the science of jurisprudence, as opposed to the minimalist approach to jurisprudence, which considers the scope of jurisprudence’s intervention to be small and leaves the expression of the method of administering other human affairs to rational agents (Oqala) and other sciences. Dr. Abdolvahab Forati is among the proponents of the second approach; with the difference that he considers the minimalist approach to jurisprudence a feature of this discipline, not its weakness. In his belief, the maximalist approach to jurisprudence has no lineage or antiquity among past scholars. Having engaged for years in the genealogy of various knowledge groups in the field of political thought, he has this time turned to the science of jurisprudence and seeks to introduce the two approaches of minimalism and maximalism to this discipline. The exclusive note of this member of the Council of the Politics and International Relations Jurisprudence Group at the Research Institute for Contemporary Jurisprudence Studies follows below:
Undoubtedly, the term “Minimalist Jurisprudence” is not a scientific term; rather, it is an approach to jurisprudence that has emerged in the literature following the Islamic Revolution and mostly carries a pejorative aspect. In fact, proponents of Governmental Jurisprudence (Fiqh-e Hikumati) describe other jurisprudential tendencies with this description to distinguish themselves from them; otherwise, it has no lineage among the righteous predecessors (Salaf-e Saleh). Nevertheless, one must ask what is meant by this term and what implications it indicates. In answer to this question, I mention three approaches and definitions so that the context of this term becomes clear.
Distinction between Customary and Shari’a Matters
Minimalist Jurisprudence is a jurisprudence that addresses the primary duty of the science of jurisprudence, i.e., Acts of Worship (Ibadat). Until now, no one has doubted that acts of worship are the domain of jurisprudence and should not be entrusted to another discipline; however, the important question that arises is: what becomes of the fate of non-worship issues, and who is responsible for them? In the past, this same question was raised, and the jurists of that period gave an answer to it that must be noted. From the Safavid era to the Constitutional Constitution, our jurists distinguished between Shari’a affairs (Umur-e Shar’i) and Customary affairs (Umur-e Urfi) and implemented this distinction in Shari’a and Customary courts. By Customary affairs, they meant delegating executive Shari’a affairs such as Retribution (Qisas), Fixed Punishments (Hudud), and Discretionary Punishments (Ta’zirat) to the Sultan, and by Shari’a affairs, they meant non-executive Shari’a affairs. Although these affairs were intrinsically Shari’a-based, based on the division of duties that had taken place, they had entrusted them to the Sultan. Therefore, affairs beyond acts of worship, which were considered Customary, were delegated to the Sultan, and no one called the jurisprudence of worship “Minimalist Jurisprudence,” and consequently, no one considered it secular either. This shows that being “Customary” in the current terminology is different from what the ancients said, and in other words, current secularization has no lineage in the past.
Being “Minimalist” in Jurisprudence; A Feature or a Flaw?
Minimalist Jurisprudence is a jurisprudence that has not entered new fields such as banking, insurance, commercial documents, commercial companies, and intellectual property, and because we compare this jurisprudence with modern legal systems, we call it minimalist and then pose this question to jurisprudence: why has jurisprudence not entered these affairs? The answer we easily give is that this jurisprudence is minimalist and has nothing to do with these affairs. But what is neglected is that these non-jurisprudential and Customary affairs are matters that rational agents (Oqala) have raised to organize their lives and have nothing to do with jurisprudence.
If in past times our jurists responded to the affairs of their own time, they spoke not as jurists but as scholars of their city. For this reason, if jurists were asked what this sale and lease is and they gave an opinion, they did not want to state the opinion of the Shari’a, but rather commented on Customary affairs as scholars of the city. It was the same in the time of the Imams (Peace be upon them), and the Infallibles (PBUH) answered the people’s Customary questions as scholars of Medina and Kufa, which was not necessarily the Shari’a’s opinion. Therefore, subjects outside of worship exist in our jurisprudential sources, but they have been judged not as jurisprudence and Shari’a, but as expert opinions regarding them. If the meaning of Minimalist Jurisprudence is this, undoubtedly this meaning is not a disparagement of Minimalist Jurisprudence, and this jurisprudence has considered affairs outside of worship from the perspective of jurists and has not attributed them to itself. For example, the Imam (PBUH), in response to the question “Can water used in Ghusl be used again?”, said: “No.” The late Seyyed Mostafa Khomeini, in analyzing this narration—the number of which reaches eleven narrations—said that the Imam’s (PBUH) answer is not jurisprudence but a hygienic answer given by the scholar of the city to the narrator.
Conflation between Jurisprudential and Customary Answers
Minimalist Jurisprudence—in the sense intended today—means that this jurisprudence addresses devotional and individual affairs and is incapable of addressing matters such as governance, planning, and administering the state and society. In the view of proponents of Minimalist Jurisprudence, such matters are outside the capacity of jurisprudence and are not considered part of jurisprudential operations. In fact, this is exactly opposite to the definition given for Maximalist Jurisprudence (Fiqh-e Hadaqsari) after the Revolution. From the perspective of Maximalist Jurisprudence, the scope of jurisprudence becomes broader, but reflection on its import reveals that this breadth lies not in jurisprudence but in the jurist’s opinions. What Imam Khomeini stated after the Revolution cannot be called the output of jurisprudence, but rather the product of his reflections. In other words, Imam Khomeini’s jurisprudence broadens the jurist’s authorities (Ikhtiyarat), but this does not mean the broadening of jurisprudence. It is true that whatever the jurist says is valid, but being valid does not mean it is jurisprudence. The Governmental Decree (Hukm-e Hikumati) is binding, but it is not the product of jurisprudence; rather, it is among the Sultan’s commands. One of the things that critics of Minimalist Jurisprudence have conflated is not distinguishing between the scope of jurisprudence and the jurist’s authorities; where the boundaries of jurisprudence are and where the authorities of the jurist as the Islamic ruler extend to is an important question that must be answered.
Undoubtedly, what is attended to in jurisprudence is the limits of jurisprudence and not the jurist’s authorities. That the jurist’s authorities increase has nothing to do with jurisprudence, and one cannot consider authorities and limits to be the same; because the jurist’s authorities have expanded as a ruler, which does not necessarily relate to jurisprudence.
Minimalist Jurisprudence and Secularism
Considering the points above, generally, one cannot attribute secularism to Minimalist Jurisprudence. It is true that Minimalist Jurisprudence, based on the third definition, has not addressed subjects such as the state and politicking, but one must see where it fills this surplus and to where it refers it?
To fill this surplus, there are several paths: One is that it adopts its solution from outside Islamic civilization; in this case, attributing secularism to the remaining part is correct. But if it uses the religious constellation for the rest and brings in ethics and theology (Kalam) and benefits from their capacity; then one cannot say that exiting jurisprudence means secularism; because its borrowed system is still Islamic.
The third solution is that to resolve the surplus, we refer to the Islamic experience of states like Malaysia and Saudi Arabia and traverse their path. In this assumption, attributing secularism to Minimalist Jurisprudence is not correct; because we have not exited the religious constellation. Therefore, the fact that some pound on Minimalist Jurisprudence to justify Maximalist Jurisprudence and consider its end to be secularism is not a correct statement; because one must see what the borrowed system of this jurisprudence is for resolving the surplus and what nature it possesses.