1 Introduction¹

In Islamic Jurisprudence, ijtihād is often seen as a means to achieve a viable methodology for legal reforms in the Muslim world and to adapt Sharī‘a to contemporary life conditions.² If for Sunni scholars this is manifested in the actualization of studies related to the ‘opening of the gates of ijtihād’ and maqasid al-sharī‘a, then, given that in ShÄ«Ê¿Ä«sm the ‘closing of the gates of ijtihād’ never happened, most relevant in the derivation of legal rulings from the Qurʾān and Sunna and in their adaption to the needs of contemporary society, are studies on the opinions of representatives of the clerical hierarchy, that is, those who adapt the Sharī‘a, and on the basics of the science of uṣūl al-fiqh. In this field, both ShÄ«Ê¿Ä« and Sunni scholars agree on the supremacy of the Qurʾān and Sunna among the sources of law and on the need to match all other sources of law with them. Thus, the Grand Āyatullāh Ali Montazeri, prominent Islamic democracy advocate, has stated that there can be no laws in the Islamic state that contradict the principles of the Islamic religion. To prevent the emergence of a globally isolated system, cooperation with international organizations is required, and this is possible except for some cases in which the pertaining laws contradict a clear text of the Qurʾān.³ That is, those aspects of Islamic law that are based on ‘the letter’ of the Qurʾān itself cannot be changed, while everything else can be subject to change.

At the same time, Qurʾān and Sunna contain certain ‘discriminatory’ decrees regarding gender inequality or religious freedom, such as decrees on the testimony of men and women, inheritance of men and women, the legal status of non-believers/non-Muslims, etc. Mostly, these decrees are subject to criticism by international and/or human rights organizations. Modern mujtahids (jurists eligible to do ijtihād) and Muslim thinkers try to justify the need for these discriminatory provisions in different ways, either through reasonings e.g. regarding the benefits for certain groups and/or differences in duties, or through the interpretation of these rulings in a different way to adapt them to modern conditions, using various hermeneutic methods.

This paper studies how two prominent ShÄ«Ê¿Ä« theologians, Grand Āyatullāhs Yousef Saanei (1937–2020) and Mohammad Ebrahim Jannaati (b. 1933), attempt to resolve contemporary issues and respond to challenges arising in the present-day world by rethinking the dogmatic laws of the Qurʾān and Sunna. ‘Dogmatic’ decrees here are defined as the rules of the primary sources of the Qurʾān and Sunna, and the views of the most authoritative ShÄ«Ê¿Ä« theologians (which sometimes have a strong dogmatic nature), including the possibility of mujtahids to revise their own views. One could argue that there have already been jurists supporting the reformulation of Islamic laws and the need to interpret Islamic revelation according to the time and place of its application. However, most of those scholars were unable to go beyond the clear texts of the Qurʿān and Sunna. In contrast, the scholars studied here refer to principles such as justice, human dignity, freedom and equality, and their rulings are heavily affected by concepts from contemporary sciences. Related statements can be identified, for example, in Āyatullāh Shabistari’s views, who believed that Muslim thinkers needed to construct a comprehensive theory of human nature and social change, and that their ijtihad should go beyond fiqh and uṣūl, embracing subjects such as society, history, economics, politics, and psychology.⁴

Considering that they have almost always been a minority, Shīʿītes do realize the importance of not being isolated, and therefore Montazeri’s justification for reform as cited above, ‘in order not to be isolated/to avoid isolation’, is quite common. Therefore, I argue that Shīʿī Islamic thought is flexible and that developments of the past (especially the Uṣūli-Akhbārī debate from the 17th to the 19th century) showed the importance of the modernization of religious thought. Consequently, nowadays Shīʿī Islamic scholars attempt to develop and improve religious laws (or at least their understanding) through the revision of certain dogmatic decrees to render them more comprehensive for their followers and to attract newcomers.

This article starts with a brief overview of the reformation of Shīʿī Islamic thought and of clerics’ attempts to respond to new challenges. The following sections concentrate on the views of the studied scholars, Yousef Saanei and Mohammad Ebrahim Jannaati. It should be noted that the research was carried out within the framework of the Uṣūli school of thought within the Jaʿfarī madhhab, since this school is the most common among contemporary Shīʿītes.

2 Marjaʿ and Reforms in Shīʿī Islam

Before proceeding directly to the study of the above-mentioned aspects, it is necessary to clarify what is meant by ijtihād and mujtahid in ShÄ«Ê¿Ä« Islam. In the JaÊ¿farÄ« madhhab, there are three main actors – marjaÊ¿, mujtahid and muqallid (one who follows/who does taqlÄ«d). In general, it is assumed that any mujtahid who wishes to be recognized as a marjaÊ¿ at-taqlÄ«d must prepare a legal (from the point of view of Islamic law) treatise called risālat (‘resāle’). This is a short manual for use by muqallids, which deals with ritual matters and some social and economic transactions (issues of trade, financial services, etc.). Each of these compilations most often begins with general decrees on the types of deeds in Islam and the need for taqlÄ«d.⁵ Thus, in accordance with the fatwās of Grand Āyatullāh Yousef Saanei, a Muslim can practice religious laws through ‘ijtihād’ or ‘taqlÄ«d’. Ijtihād refers to attempts to derive religious laws from relevant sources and evidence, and accordingly, a person capable of this is called a ‘mujtahid’. ‘TaqlÄ«d’ means following and imitating a mujtahid, that is, practicing the religion based on religious decrees (fatwās) issued by a mujtahid. A mujtahid who is imitated and followed by others is called a marjaÊ¿ at-taqlÄ«d, and one who imitates a mujtahid is called a muqallid (imitator). A person who is not a mujtahid and therefore cannot deduce the divine laws and regulations from the relevant sources should imitate a mujtahid. Most people must practice religion by imitation as only a few are capable of ijtihād, which requires years of religious education. The imitation of religious laws is carried out through the fulfilment of the fatwās of a marjaÊ¿, for the purpose of which one should follow a mujtahid with the following characteristics: reasonable, mature, Twelver ShÄ«Ê¿Ä«, legitimately born, just and alive (that is, not dead). The mujtahid should also be the most learned and knowledgeable among others, and as a necessary precaution, he should not be attached to the material goods of this life (almost the same list of requirements can be found in the rulings of other marājiÊ¿). The wording ‘most learned’ mujtahid indicates the one capable of understanding the divine laws better than other mujtahids of the time.⁶

In the framework of this study, of particular interest is the proscription to follow the fatwās of a deceased mujtahid and the need for a living mujtahid. In fact, there is an exception to this rule – imitating a deceased mujtahid is usually allowed in case the muqallid had been following the fatwās of this mujtahid already during his lifetime.⁷ But the main interest is the argumentation of the justification for this rule. Analysing Murtadha Mutahhari’s position on this issue, the following reasons for the prohibition of the imitation of a deceased mujtahid can be determined:

• The first purpose of this principle is to guarantee the survival of the traditional centres of the study of Islamic sciences, ensuring their continuity, preservation as well as improvement, in order to enable engagement in previously unsolved issues. Therefore, taqlÄ«d to living mujtahids is a means for the continuation and development of the Islamic sciences.⁸ Similarly, Gleave writes that the majority of ShÄ«Ê¿Ä« scholars has a strong sense of the continuity between their present-day activities in teaching, writing and debating and those of their predecessors from past generations. Accordingly, they perceive an ongoing need to maintain the longstanding intellectual structures of ShÄ«Ê¿Ä«sm.⁹

• Muslims face new challenges every day in their lives, often being unclear about their duties in these matters. Thus, living jurists aware of the current situation are needed in order to respond to these challenges. According to Mutahhari, the ‘secret’ of ijtihād lies in the application of general principles to new problems and changing circumstances. Therefore, the real mujtahid is the one who has mastered this ‘secret’, observing how things change, and subsequently, how the rulings about them change.¹⁰

Liyakat Takim also quotes Mutahhari, asking what the difference between following living or dead marjaÊ¿ is, if a living mujtahid is not responsive to contemporary issues. Takim goes on to cite the opinions of other reformers in ShÄ«Ê¿Ä« legal thought. Āyatullāh Khomeini reproached jurists for their concentration on abstract principles to the detriment of tangible changes in real-life situations. He said that in addition to protecting the holiness and integrity of Islam, their responsibility is to ensure that the teachings of Islam do not become out of place in the management of the world’s economy, political and social relations. Āyatullāh Saanei is also of the opinion that there is a tendency on the part of jurists to take extreme positions that prevent them from using the institution of ijtihād to address the problems faced by Muslims living in the 21st century. There are some jurists who have clarified fiqh and its principles to such an extent that there is little room for creative rethinking. They do not pay attention to the fact that the purpose of Islamic law is to provide ease to people at all times along with spiritual guidance, and not to impose hardships or rules that are incompatible with the present age.¹¹ Another polarized position is held by those who are inattentive to Islamic legal principles and seek to please all groups without assessing whether their positions are in accordance with Islamic principles or not. Instead of these two positions, the Āyatullāh proposes a middle ground that honours and respects Islamic legal principles, while at the same time realizing that the law must be relevant and applicable in the modern context with its special circumstances.¹² Takim further notes that the main feature of reformist thinkers such as Āyatullāh Saanei, Mohammad Ebrahim Jannaati and Fadlallah is the positioning of the Qurʾān as the main and foundational textual source in the formulation of new legal decrees, allowing reason to reveal the rationale and wisdom behind the divine prescription and taking into account the context of the time and place associated with specific regulations that were issued on a special basis. This need can be seen in the existing body of law, especially the decrees relating to issues such as apostasy, the status of non-Muslims and gender justice, many of which are contrary to the spirit of the Qurʾān but are given legal force primarily on the basis of ḥadÄ«th, consensus and the science of jurisprudence (uṣūl al-fiqh).¹³

3 Solving Pressing Problems in a Changing Society

In the previous section, the words of Āyatullāh Mutahhari about the necessity of a living mujtahid, able to solve pressing problems of society, were quoted. Fatwās often deal with contemporary issues and the need to address new problems. This section reflects on some recent debates and the related decisions. On the Grand Āyatullāh Sayyid Ali Khamenei’s website, one can find, for instance, his fatwā regarding vaccination against the coronavirus during fasting:

Question: Does the coronavirus vaccine break fasting?

Answer: Coronavirus vaccination does not break the fast.¹⁴

On the Grand Āyatullāh Sayyid Ali Sistani’s website, there are also relevant fatwās on the specifics of the burial of people who died from the effects of the coronavirus:

Question: If a Muslim dies as a result of the coronavirus infection, is it important to perform a full ablution of his body, like other bodies, or is tayammum sufficient? What if the responsible persons do not even give permission for tayammum, put the body in special protective bags and do not allow anyone to open it before burial?

Answer: In cases where it is not possible to perform the ghusl of a corpse due to the danger of spreading the virus, but it is possible for a healthy person to perform tayammum over him (even while wearing gloves), then this should be done. If it is impossible to perform tayammum or if responsible persons prevent it, the body must be buried without ghusl and tayammum.¹⁵

The JaÊ¿farÄ« legal thought provides a mujtahid the possibility to review certain of his views. Āyatullāh Yosef Saanei writes that a jurist may issue different fatwās on a particular issue at different times. This can be traced back both to the example of classical ShÄ«Ê¿Ä« scholars such as Shaykh ṬūsÄ«, and contemporary examples of Saanei himself. Saanei writes that each jurist meets the needs of his society, and one jurist’s point of view can be accepted by the people, while another’s point of view is not.¹⁶ Thus, society decides what to choose and what to follow. Many other modern marājÄ«Ê¿ share this view.

On the Grand Āyatullāh Makarem Shirazi’s website, we can find the following fatwā:

According to Āyatullāh Makarem Shirazi’s first fatwā, issued decades ago, smoking was prohibited only if it was harmful to health. However, after some time, Āyatullāh Makarem Shirazi reconsidered this issue and changed his mind. After that, he issued a new fatwā, in which he imposed a strict ban on smoking.

When issuing the last fatwā, Āyatullāh Makarem Shirazi relied on the following: […] [further follows the argumentation of the decision]

For these reasons, Āyatullāh Makarem Shirazi issued a fatwā in which he forbade Muslims to smoke cigarettes and hookah forever.¹⁷

The ability of a mujtahid to revise his own decisions is also a sign of their development and stands in contrast to a possible stagnation. That is what allow jurists revise the opinions of their predecessors, contemporaries and even their own to adapt them to changing conditions.

4 Views of Āyatullāh Yousef Saanei

The doctrine of the Grand Āyatullāh Yousef Saanei differs significantly from the views of his contemporary colleagues. His most famous fatwās concern the following issues: raising the age of maturity for girls to 13 years (according to other ShÄ«Ê¿Ä« mujtahids, it is nine years); the opportunity for women to hold leading government positions, to be judges and marjaÊ¿ at-taqlÄ«d; equal ‘blood feud’ and ‘blood money’ for the murder of men and women, and Muslims and non-Muslims; equality of the testimonies of men and women, and many others. To legitimate his views, he refers to the term ‘dynamic ijtihād’/‘dynamic jurisprudence’, pointing out that the rulings of fiqh require changes depending on the conditions of the modern period and noting that the conditions prevailing in the modern period and new events taking place in specific societies require a form of ijtihād that takes into account factors of time (zamān) and place (makān). Accordingly, there is a need for the jurist to be familiar with changing circumstances and to consider the impact of his opinion and fatwā on society. That is, when making a ruling, a jurist must always keep in mind the situation in a particular society. The jurist must be aware that if he/she approves a decision or issues a fatwā, this implies certain consequences: the fatwā must be executed at the time and place where it is issued. According to Saanei’s views, as socio-political conditions change, legal decisions issued by jurists must reflect the new circumstances; otherwise, fiqh becomes ossified and loses the ability to adapt to new circumstances. More importantly, if the precepts of a religion do not fit well with existing conditions, Islam may find itself isolated in the modern world. This means that jurists must continue to revise traditional laws according to changing circumstances, and through this process can achieve the development of Islamic laws, making dynamic ijtihād possible.¹⁸ A similar train of thought can be traced in the fatwās of the Āyatullāh himself. Answering the question of a muqallid from the USA, who lives in a small town and has no halal butchers there, the Āyatullāh argues that, in general, Muslims should avoid eating meat from animals during the slaughter of which the name of God was not pronounced. But all the relevant Qurʾānic verses and traditions refer to cases where both halal and haram meat are available, not to cases where there is only one choice – haram. This is because expecting the fulfilment of this obligation everywhere and in every case would be to impose an undue hardship on people in similar situations as the mentioned muqallid. Considering all this and the fact that Islam is an “easy religion”, the Āyatullāh concludes that this specific meat available to a given muqallid is halal and permissible to eat, while the same meat is haram and unacceptable for those who have access to halal meat.¹⁹

Saanei also emphasizes the importance of justice and human dignity in religious decrees. What constitutes the spirit of the Sharī‘a is justice. According to Saanei, when it is said that fiqh rulings are fixed and unchanging, the referent is the spirit of the rulings, i.e. their emphasis on the concept of justice. Therefore, when a jurist attempts to issue a religious ruling, he/she should always regard justice as the fundamental principle based on which all law-making processes must be conducted. Based on the Qurʾānic verse that states that ‘Your Lord is never unjust to His creation’ (Q. Fuṣṣilat: 46), Saanei argues that all the rulings of Islam must be just and free from oppression or injustice, as well as seriously considering that people have been given dignity. In doing so, Saanei refers to a Qurʾānic verse: ‘O humanity! Indeed, We created you from a male and a female’ (Q. Al-Ḥujurāt: 13). He concludes that the Qurʾān puts human dignity above religion or gender. Piety and good behaviour are the only things that distinguish people from each other. For him, the emphasis on the concept of human dignity and its primacy over attributes such as race and religion is an important tool that jurists should use in their legal decisions.²⁰

Analysing the foregoing, it can be noted that in some issues the decisions of Āyatullāh Saanei contradict the ‘letter’ of the Qurʾān and/or ḥadÄ«th. He believes that the principles enshrined in the Qurʾān and Sunna are fixed and unchangeable, but our understanding of them can change. Depending on the methods of interpretation of the original sources, he defines traditional and dynamic jurisprudence. In his opinion, Jawāhiri Jurisprudence (based on ‘Jawāhir al-kalām fÄ« sharḥ sharāʾiÊ¿ al-islām’, a 19th century book concerning demonstrative fiqh by Muḥammad Ḥasan al-Najafi) forms the basis for dynamic jurisprudence. The latter is built on the principles of rationality and justice. It is through this doctrine that he formulates his above-mentioned rulings, especially those concerning the different statuses of men and women, and Muslims and non-Muslims respectively, stating that in the Qurʾān, Allah speaks about all people equally and without any discrimination. For example, in the phrase ‘and blow in him of My spirit’ (Q. Al-Hijr: 29), there is no differentiation between different groups being filled with His Spirit. Accordingly, all people have a divine spirit in them. Now, when encountering a ḥadÄ«th or fatwā that deprives women or any other community of their human and civil rights, we must conclude that the ḥadÄ«th or fatwā in question does not correspond to the essence of these Qurʾānic verses, because people are all equal, and therefore cannot be unequal when it comes to their human rights. This is the dynamism with which jurisprudence can develop.²¹

Āyatullāh Saanei believes that ShÄ«Ê¿Ä« jurisprudence has in fact always been dynamic, beginning from the times of the Prophet. Dynamism is the quality of moving forward. ShÄ«Ê¿Ä« jurisprudence explicates divine law while focusing on the daily problems of individuals. To support his views, Saanei cites several aḥadÄ«th, such as the one transmitted by Imam Riḍā: ‘We are to introduce the principles and you are to express the derivatives and secondary matters’ (Wasāʾil al-shÄ«Ê¿a: 27:62. Abwā b SÄ«fat al-Qadi, Bab 6, ḥadÄ«th 52). One principle can be the source of hundreds of minor questions, and this is the foundation on which jurisprudence is based. The infallible imams advised Muslims to address their questions on everyday matters to reliable people. However, these people did not have access to all the secondary rules through ḥadÄ«th, but rather to a set of principles. The fact that specific people are pointed out as fulfilling this role is a testament to dynamic jurisprudence and to the necessity for the implementation of daily religious obligations to turn to those who are reliable both in matters of religion and in life. Saanei points out that even Khomeini cited a lot of evidence for the proposition that legal deduction existed already in the time of the Infallibles (i. e. the Prophet and Imams). However, at that time, it was not given a lot of influence, as there were not many unprecedented day-to-day situations to deal with, life’s issues and communication being very limited. In contrast, nowadays, we are faced with more and more new cases on a daily basis, making it necessary to respond to these challenges.²²

Saanei points out that if seminary schools do not pay attention to dynamic jurisprudence, they will no longer fulfil their duties, and people will no longer consult them in their religious questions. People expect a jurist to answer their daily religious questions, and if he/she incapable of this, then he/she is either not a jurist or does not adhere to dynamic jurisprudence. Saanei believes that ShÄ«Ê¿Ä«sm strongly disagrees with a closed and limited version of jurisprudence and demands to open it to further development.²³ In addition, he argues that dynamic and traditional schools of jurisprudence do not contradict each other. He identifies a difference between the past and the present, lying in the ability of society to accept new fatwās and views. Sometimes the jurist’s understanding of religious texts and sources meets the circumstances of society and solves problems, but society is not able to accept this. In the past, people were not as open to new challenges as they are today. It depends on the understanding of the jurists themselves to decide whether society will be persuaded to accept the new fatwās or not. Thus, legal dynamism was always present, but the jurists may have refrained from presenting their new views due to the lack of community capacity. Dynamic jurisprudence and traditional jurisprudence are identical in nature and develop in parallel to each other. It is the same jurisprudence with the same methods, but with different conclusions. For example, there is a ḥadÄ«th that says that when a woman leaves the marital home without the consent of her husband, the angels curse her until she returns home. Regarding the question whether women are allowed to leave the marital home without the consent of their husband, the jurists of the traditional school use the ḥadÄ«th as evidence of its inadmissibility and issue a fatwā stating that it is forbidden. Another jurist, however, may use the same ḥadÄ«th to issue a fatwā going beyond the literal meaning of the ḥadÄ«th, and arguing that leaving the marital home in fact meant leaving because of some disagreement or quarrel. In this sense, women leaving the home will be more acceptable to society, and their human dignity will be preserved since women are not considered slaves and are equal to men in all human and social rights. This is not to say that traditional jurisprudence is not dynamic. It is dynamic, but not able to answer all the needs and questions of today. The main feature of dynamic jurisprudence is that it responds to present-day needs of people by using the same methods.²⁴

Āyatullāh Saanei believes that the topic of religious jurisprudence is always open in ShÄ«Ê¿Ä«sm, and this dynamism is perceived as the richness of Islamic culture. Qurʾān, ḥadÄ«th, and other sources were interpreted by ShÄ«Ê¿Ä« religious figures in a varied and free manner, and legal deduction never repeated its own steps, displaying the progressiveness and dynamism of ShÄ«Ê¿Ä« jurisprudence. The foundations of ShÄ«Ê¿Ä«sm insist on the preservation and revival of the rights of men and women, as well as on the perception and understanding of time and space.²⁵ In many matters, Saanei follows his above-mentioned rules about the significance of the role of time and space, and principles of human dignity, justice and equality of all people, especially considering that his fatwās about the equality of the testimony of men and women, and about equal ‘blood feud’ and ‘blood money’ for the murder of men and women, and Muslims and non-Muslims, contradict the clear text of the Qurʾān and Sunna and fatwās of other scholars. Quite interestingly, regarding the issue of inheritance, he still agrees with other scholars and the Qurʾānic verse stating that sons inherit twice as much as daughters. So in this case, according to him, the classical law of inheritance is not subject to change in the contemporary period.²⁶ Usually, Islamic scholars explain the wisdom behind this rule by arguing that the expenses of women are to be paid by men, and women’s share of their children’s expenses are also to be paid by men, while the children belong to both. In this regard, Āyatullāh Montazeri marked that “if we were to be fair, then half the expenses of children ought to be paid by women, whereas Islam has demanded that men pay for it. So altogether, justice is observed.”²⁷ Universal moral values and the inherent nature of the rights that accrue to a human as a human in reality are diverse and consist of different interpretations of values like justice, freedom, and equality, which continue to play a critical role in both secular and Islamic human rights discourse for their universal applicability.²⁸ The lack of a clear definition of what equality or justice is leads to a diversity of opinions and provides more space for personal interpretations, which leads to an even bigger pluralism of opinions among scholars. But if previously this pluralism was limited by the clear text of the Qurʾān and Sunna, then now it is limited only by the ‘spirit’ of the Qurʾān and Sunna, while these Qurʾānic principles are not yet specifically defined.

5 Āyatullāh Jannaati’s Views on ijtihād

Grand Āyatullāh Mohammad Ebrahim Jannaati (b. 1933) considers the concept of ijtihād in similar ways. His method of ijtihād uses an innovative form of deduction from religious sources. This method is called ‘Tafrī’y’ and ‘Muqāran’ (sorting and comparison). It aims to search, recognize and evaluate the main and subordinate laws with general rules associated with them. This method involves consulting religious sources regarding the current time and circumstances, as well as a careful study of the issue in question. The criteria of laws and regulations, which in their essence and over time have become the subject of laws, are studied and evaluated along with their internal and external features. Subsequently, if there is a change in the subject or any of its conditions, the precepts change, or else they remain as they are. The religious rule remains unchanged as long as the subject does so. Whatever was permitted in the time of the Prophet Muhammad will remain permitted until the Day of Judgment, and whatever was forbidden in the time of the Prophet will remain prohibited until the Day of Judgment. In this method, where the internal and external attributes and characteristics of the subject, as well as the criteria and names of the precepts, are carefully studied, the change of time and place plays a major role in transforming them. This is because the change of time and place, although it does not always cause the change of religious decrees, still has considerable influence on the subject, its conditions and signs.²⁹

Jannaati believes that the legal principles of religious matters should be reviewed and revised according to the conditions of the time, recognizing that the evolution of time as well as place and its conditions, alongside the conditions of the specific human being in relation to the internal characteristics and external issues of the respective rulings, play a role in the evolution of ijtihād. Every ruling in Islamic law on any subject is based on a fixed criterion, and as long as that subject exists without change in its origin or its internal and external characteristics (due to the change of time), this ruling is fixed and unchanging. But if there are changes in one of these features, then the latter must be changed. As an example, he points out that blood previously had no financial value and deriving a permissible benefit from it was impossible, therefore, it was forbidden to buy and sell it. However, nowadays, due to the development of medicine and technologies, blood has many benefits, and the new characteristics lead to a change in the initial ruling. This change in time and place is what led to the ruling changing from forbidden to permissible, and it entered into another circle, and so on with the ruling on buying and selling human body parts (meaning organ and body donations).³⁰ Thus, taking into account the development of sciences (such as medicine, physics, chemistry, mathematics, etc.), Āyatullāh noted the need for a jurist to have knowledge on these fields as a requirement for theology. If a jurist does not have such knowledge, he/she must have access to specialists in these sciences to determine what is necessary for him/her, enabling him/her to give a verdict based on the basic elements of knowledge.³¹

6 Conclusions

In the works of the contemporary reformists Khomeini, Fadlallah and Saanei, we can identify a major epistemological shift in Twelver ShÄ«Ê¿Ä« legal theory, favouring the Qurʾān and endowing reason with legitimacy as a source for discovering that legal rulings were issued based on a specific context of time (zamān) and space (makān) and, as such, without universal applicability for all times and places. These jurists are also interested in the purpose of the fatwā and in the question of what contributes to the well-being and needs of society and state. The reforms discussed above are important in conveying the message that the legal tradition is far from being static, that there had historically been a lot of discussions in the Muslim community, and that the community is trying to distance itself from extremist and archaic articulations of Islam today. Through this kind of self-criticism and acknowledgment of past mistakes, the reformation can generate a new understanding of Islamic revelation and prophetic practices.³²

The adaptation of Shīʿī jurisprudence to the conditions of the contemporary world is also a guarantee for the preservation and development of this legal school. Looking historically at the events of the 17th to 19th centuries – the era of the Uṣūlī-Akhbārī debate – one can see that precisely due to ijtihād and its ability to respond to the challenges of modernity, the Uṣūlī not only emerged victorious from this discussion, but were also able to build a strong clerical hierarchy inherent in modern Shīʿīsm (with āyatullāh and marjaʿ at-taqlīd). Thus, the dynamic ijtihād at that time allowed the Uṣūlīs not only to survive within the conditions connected to the emergence of groups such as Akhbārīs, Babists, Baha’is, and others, but also to develop and become stronger, which in many respects provided them with the largest number of followers in the modern Shīʿī world. In the contemporary world, especially with the approval of world standards of human rights (accepted by the UN), and after the establishment of the Islamic Republic of Iran, Shīʿī Islam, as well as Islam in general, began to be subjected to constant criticism. A rethinking of religious primary sources may provide answers to this criticism or adapt the rules of Shīʿī Islamic law in accordance with modern conditions, but based on the principles and ‘spirit’ of those primary sources.

Takim notes that Muslims must formulate a comprehensive legal system that will include the concepts of dignity, freedom of conscience, minority rights and gender equality, based on the idea of universal moral values. One of the obstacles to this is the traditionalists’ view that Islamic law, formulated by the jurists of the first three centuries of Islamic history, was in strict accordance with the divine will as expressed in the Qurʾān and Sunna. Normative textual sources are seen as timeless and sacred rather than tied to a specific historical context, and the possibility of changes in the interpretive applications of the Qurʾān according to the changing realities of history are neglected.³³ Saanei’s views and approach could be a solution to this issue since they propose a comparable legal system based on universal principles such as justice or humanity, and on the interpretation of Islamic laws according to time and place, although his propositions lack a clear methodology. One might argue that contemporary ShÄ«Ê¿Ä« jurists already have an established methodology commonly referred to as al-uṣūl al-Ê¿amaliyya (‘procedural principles’), which are hermeneutic tools allowing the mujtahid to provide the wider Twelver ShÄ«Ê¿Ä« community with practical guidance for its religious life.³⁴ But these principles are very specific since they constitute a methodology of law-making and usually do not go beyond clear text of the Qurʾān and Sunna. Also, although justice follows from the dictates of natural law, which are open to universal human nature and considered as independent from specific religious beliefs, and the Qur’an introduces the prescription to establish justice as an objective moral value, as well,³⁵ the core principles of justice, equality and freedom remain too vague, leaving a lot of space for personal interpretations. This becomes more obvious if we look at the diversity of existing theories on justice, equality, human rights, and legal decisions everywhere including the Muslim World. Scholars’ legal decrees differ even on quite similar issues, which can be seen from Saanei’s fatwās on the equal role of male and female testimonies, compared to his views on different male and female shares of inheritance. While Saanei makes references to modern concepts of human rights and other doctrines from the social sciences and humanities, Jannaati appeals to the need to take into account achievements from the ‘exact sciences’ such as math, medicine, chemistry, etc. So, an advantage emerging from their views is the consideration of non-Islamic sciences; while this, at the same time, makes Islam dependent on the level of development of these sciences, as well as the diversity of interpretations and concepts within them.

Also, Saanei writes that each jurist meets the needs of society, and the point of view of one jurist can be accepted by his/her people, while the point of view of another might not. Based on these words and the fact that society itself decides what to choose and what to follow, another side of dynamic ijtihād arises. This time, its component will not be the mujtahid creating new laws, but the muqallid. That is, the question emerges as to how ready Muslim societies are for the changes that new mujtahids can offer. The question of the acceptance of new ideas in the centres of their creation, namely, religious seminaries, is relevant as well. Āyatullāh Feyz had issued a fatwā stating that music is not intrinsically haram (forbidden); rather, declaring it potentially haram in content. Therefore, according to him, music which does not contain content that could mislead people, for example, music encouraging to join the fight against the enemy or teaching health, is not haram. For this fatwā, Āyatullāh Feyz was excommunicated from the seminary.³⁶

Rethinking the ‘letter’ of the Qurʾān and Sunna allows the Shīʿī legal doctrine to develop and adapt to new challenges emerging in societies. Several requirements are put forward for new legal rulings: the reliance on the principles of the Qurʾān and Sunna (the so-called ‘spirit’ of the law), taking into account principles such as justice and human dignity, and consideration of the place and time of a given ruling. In turn, the existence of different interpretations of values like justice, freedom, and equality, in addition to conservatism, both among other mujtahids and muqallids as followers and addressees of these fatwās, are main obstacles to this rethinking.