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IJTIHAD in TWELVER Sffl'ism Esmat Al-Sadat TABATABAEI LOTFI

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IJTIHAD in TWELVER Sffl'ism Esmat Al-Sadat TABATABAEI LOTFI IJTIHAD IN TWELVER Sffl'ISM The Interpretation and Application of Islamic Law in the Context of Changing Muslim Society Esmat al-Sadat TABATABAEI LOTFI Submitted for the Degree of Doctor of Philosophy Department of Theology and Religious Studies The University of Leeds September 1999 The candidate confinns that the work submitted is her own and that appropriate credit has been given where reference has been made to the work of others. Dedicated to The Memory of Founder of the Islamic Republic of Iran Imam Khomeini and to my parents Acknowledgments In the Name of God, the Beneficent, the Merciful; and thanks to be him "Who taught man what he knew not" (Qur'an. Surah XCVI, Verse 4) This doctoral thesis is the product of my post-graduate studies at the Department of Theology and Religious Studies, University of Leeds, during the period 1995 to 1999. I wish to express deep gratitude for the invaluable guidance provided by Professor Neal Robinson during the research and writing of the thesis. I would like to thank the Ministry of Culture and Higher Education of the Islamic Republic of fran, for their encouragement and assistance. My thanks are also due to the academic and secretarial staff of the Department of Theology and Religious Studies and to the staff of the Brotherton, Edward Boyle, Medical and Law Libraries of the University of Leeds for their assistance. I am also indebted to the following libraries and centres and their staff: Islamic Centre of London; Library of al-Khoei Foundation, London; SOAS Library, London; Dar All al-Bayt, Leeds. I wish to express my gratitude to my brother Majid Tabatabaei, who kindly sent books, articles and other materials from Iran. Special thanks are also due to Mr. Peter Coleman for his invaluable assistance in editing the final draft of the thesis. Finally I am greatly indebted to my husband, Abmad Tabatabaei, without whose help and encouragement the completion of this study would not have been possible, and also to my daughters Zeinab and Zakiyeh, and to my son Au for their patient acceptance of living far away from their beloved homeland. 111 Abstract The purpose of the thesis is to investigate whether Islamic laws, without relaxing the nature of the Shari 'a, could be expanded and adapted to meet the changing needs of modem Muslim societies. The focus is on the Shi'ites' approach to the law with special reference to the debates in Iran following Imam Khomeini's emphasis on the "role of the time and place in Utihad". The thesis suggests that scientific knowledge in different areas should play a role in jtihad beside the judgements of those possessing the accomplishments necessary to be a qualified mu] tahid. The first three of the seven chapters are designed to provide a general overview of Shi 'i law, the concept of tihad and its development and also the sources and the methodology of tihad (usul al-fiqh) among the Shi'ite 'ulama. The fourth chapter discusses the relation between Utihad and the comprehensiveness of the Shari 'a, and examines the different theories introduced by both traditional 'ulama and Muslim modernists in adapting Islamic law to the requirements of the modern age. The fifth chapter focuses on the "role of the time and place" in tihad, and the ways and principles through which changes in the law may be justified. In investigating the stages through which a mujtahid may find out the rulings of the Shari 'a on a particular subject, some new and controversial issues including insurance policies, Islamic banking, human dissection, organ donation, and woman's right to judge and to be followed are discussed briefly in the sixth chapter. By studying and examining in detail the rulings of the Shari 'a, as extracted by some leading fuqaha, on the new reproductive technologies, artificial insemination, in vitro fertilisation and human cloning, it is shown how scientific knowledge can affect the procedure of jjtihad. Overall it is concluded that participation of thefisqaha in regulating the law and giving practical instruction regarding different problems requires the authorisation of division in Utihad and cooperation between mujtahidun and scientific authorities on various subjects. It is by recognising these necessities and considering the conditions of the time that they may be able to bring Islamic law successfully into harmony with the requirements of modern life. iv Table of Contents Dedication ii Acknowledgements........................................................................................................iii Abstract.........................................................................................................................iv Listof Contents ............................................................................................................. V Listof Abbreviations ......................................................................................................xi Tableof Transliteration ............................................................................................xii Noteon Arabic Transliteration ..................................................................xvii Introduction ................................................................................................................1 1. Hypothesis ........................................................................................................... 5 2. The Major Question .............................................................................................6 3. Minor Questions .................................................................................................6 4. Assumptions ........................................................................................................6 5. Scope of Study ....................................................................................................7 6. Methodology .......................................................................................................7 7. Sources ................................................................................................................8 8. Structure of the Thesis .........................................................................................8 Chapter One: The Fundamental Belief in the Imamate and its Role in Producing the Shi'i Law 1.1 Introduction ...................................................................................................10 1.2 The Imam and the Imamate ..........................................................................10 1.3 The Twelve Imams .........................................................................................12 1.4 The Mujtahidun, the Deputies of the Imam in the Greater Occultation 18 V Chapter Two: The Meanings of the Iftihad and its Historical Development among the Shi'ites 2.1 Introduction .................................................................................................... 25 2.2 Literal Meaning of the Word Ijtihad ............................................................. 25 2.3 Technical Meaning of the Term Iftihad ........................................................ 26 2.3.1 Ijtihad in the Sense of Ra y .................................................................... 27 2.3.2 Ijtihad in the Sense of Qiyas ................................................................... 32 2.3.3 The Wider Conception of the Term If tihad ............................................. 42 2.4 Commencement of Ijtihad among the Shi'ites and its Development ........... 43 2.4.1 Shi 'i School of Law in the Early Period of Occultation until the Fourth Centuryof Hijra ....................................................................................... 44 2.4.2 The School of Rationalism (Usuli) from the Fourth/Fifth Century up to theEnd of the Safavid Period .................................................................. 46 2.4.3 New School of Akhbarism ...................................................................... 54 2.4.4 The Renewal of the Usuli School ........................................................... 56 2.4.4.1 The School of al-Wahid al-Bihbahani .............................................. 56 2.4.4.2 The School of al-Shaykh al-Ansari .................................................. 57 2.5 The School of Imam Khomeini ......................................................................57 Chapter Three: Usul al-Fiqh or the Principles of Islamic Jurisprudence 3.1 Introduction ..................................................................................................... 59 3.2 An Overview of the Issues of Usul al-Fiqlz .................................................... 61 3.3 The Four Sources of the Shari 'a or Adilla al-A rbi 'a ..................................... 63 3. 3.1 The First Source of the Shari 'a: The Holy Qur'an .................................... 64 3.3.1.1 al-Muhkam wa al-Mutashabih (the Perspicuous and the Ambiguous) ....................................................................................... 67 3.3.1.2 a!- 'Amm wa al-Khass (the General and the Specific) ......................... 70 3.3.1.3 al-Mutlaq wa al-Mu qayyad (the Absolute and the Qualified) ............ 72 vi 3.3.1.4 al-Nasikh wa al-il'Iansukh (the Abrogator and the Abrogated) ...........73 3.3.1.5 al-Muj ma! wa al-Mubayyan (the Ambivalent and the Manifested) 74 3.3.1.6 al-Nass wa al-Zahir (the Explicit and the Manifest) ..........................74 3.3.1.7 Makki and Madani Verses .................................................................75
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