Space for Reformation

As shown in chapter 3, the most pivotal underpinning of modern Shi'ite legal theory is that of the authoritativeness of certainty. For Usulrs, certainty, or any evidence that generates definitive Sharia knowledge, is authoritative by virtue of its very existential nature.

of certainty, particularly in instances when they realise (with hindsight) that their perceived sense of certainty does not, in fact, always accurately disclose or correspond to objective reality. To avoid delving deeper into philosophy, the likes of Khumayni and Khh'i simply opine that the discussion surround­ing the existential nature of certainty falls outside the remit of legal theory and instead is debated in another discipline and merely assumed within legal theory.

A thorough study of orthodox legal theory emphatically reveals that the method of argumentation Ushlis use to establish the framework they propound is rational. They make use of rational and logical methods of demonstration to present novel opinions or to refute pre-existing notions of their predecessors. This is something that is clearly witnessed in the way Ushlis generally argue for and justify their fundamental epistemological underpinnings. My study high­lights several rational arguments they employ to demonstrate and justify the non-authoritativeness of conjecture or the authoritativeness of certainty and substantiated conjecture.

A facet of modern Ushli legal theory that becomes very apparent from my study concerns its relationship with the discourse of philosophy. The juxta­position between legal theory and philosophy within the Shi'ite tradition has been prevalent since the medieval period. For several centuries, Ushlis have attempted to integrate their legal theory with Aristotelian and Sadrian philo­sophical systems and the comparable epistemological and ontological argu­ments they propound.20 As alluded to in chapter 3, Sadras holistic approach to philosophy found in Safavid Iran has a distinct Shi'ite flavour to it and has had a significant impact in shaping the current orthodox Ushli discourse of legal theory, together with the legal epistemology it propounds. There are numerous instances where Ushlis make reference to philosophical jargon used by Sadra and his contemporaries to explain complicated concepts within legal theory.21 Considering this, when Khumayni and Khh'i assert that discussions surrounding the existential nature of certainty are borrowed from another discipline, they are most likely referring to Sadras discourse of theosophy.

The precedence of reassessing epistemological assumptions is not entirely novel within Shi'ite orthodoxy. For instance, John Walbridge in The Most Learned of the Shi^ra explains that after engaging with western philosophi­cal ideas of Marxists and Imperialists, Muhammad Baqir al-Sadr explored how some of them could be incorporated within his religious system. This

20 For instance, see also Paya, Islam, Modernity and the New Millennium, 169-84; Walbridge, “Muhammad Baqir al-Sadr,” 132 & 134.

21 For example, this is clearly highlighted in chapter 3 in the way Kamal Haydari defends the UsQli understanding of the existential nature of certainty. By taking recourse to several philosophical categorisations and typologies he shows that certainty, at the level of con­ception, always accurately discloses and corresponds to objective reality. exploration led him to publish cUsus afmantiqiyya ii-1 stiqra' (The Logical Bases for Induction) wherein, contrary to popular Ushli-Aristotelian belief, Sadr proposes that induction or inductive reasoning (٠Istiqra^c) can lead to the attainment of certainty.22 In this work Sadr subtly demonstrates that he has no problem moving away from an epistemology that asserts knowledge can only be attained by certainty in favour of an epistemology that asserts knowledge can be attained by assurance or high probability.23 It is important to note that indications of Sadr breaking away from traditional orthodox legal epistemol­ogy are also found in his discourse on legal theory. As discussed in chapter 2, he argues that in theory (or in maqam al-thubut), any evidence that generates any possibility (intimal), even if it is conjectural, is authoritative and must be utilised in the discovery of Sharia knowledge.

Apart from Sadr, the precedence of reassessing epistemological assump­tions within Shi'ite orthodoxy is also expounded by the advocators of the tafklkl movement (also known as maktab-i tafklk). The movement was found over fifty years ago by scholars belonging to the seminary of Najaf and has since continued to attract many seminarians. Its central premise is that tra­ditional Ushli methodology and understanding of Sharia is distorted because of it being closely intertwined with foreign philosophical and mystical ideas. Its advocators reject the utility of Aristotelian and Hellenic logic and are par­ticularly critical of the immensity of Sadrian influence in Ushli legal theory. Instead, they assert that authentic knowledge of Sharia, and the methodol­ogy by which it can be deduced, can be directly retrieved from the Quran and sunna of the Prophet and infallible Imams without the need for foreign philo­sophical inquiry. 25

As opposed to rejecting philosophical inquiry altogether, or the entirety of Sadrian theosophy, some insider Shi'ite academics have proposed that for Shi'ite orthodoxy to provide adequate solutions to modern challenges it must

22 Ibld,., ⅛5,-⅛.

23 Sadr's aspiration of moving away from traditional Ushli epistemology is also alluded to by AHPaya.SeePaya, Islam, Modernity and the Niew Millennium, ι‰-⅛

24 Walbridge, “Muhammad Baqir al-Sadr,” 138.

25 For a more detailed study of maktab-i tafklk in English see Gleave, “Continuity and Originality in Shi'i Thought”; Rizvi, “Only the Imam Knows Best,” 487-503.

Likewise, Abolqasem Fanaei, a seminarian instructor, and the Head of Department of Philosophy at Mofid University in Qum, is another Shi'ite aca­demic who stresses that orthodoxy's requirement for certainty in obtaining knowledge is a major epistemological impediment that hinders their progress. In his Akhldq din Shindsl, Fanaei, like the critical rationalists, argues that it is not epistemologically possible to attain certainty or certain knowledge of the external world. Instead, he claims that ordinary people in everyday life

26 Paya, Islami, Mod^E^raWyandtheNewMllli^nnlumi, 176-8.

27 1.,18¾!,1Iran, the precedence of sharing intellectual domin­ion is also presented in the lectures and writings of Muhammad Baqir al-Sadr, who advances the notion of consultative ijtihad. For instance, Talib Aziz in The Most Learned of the Shi^ra explains that Sadr's main contention with Shi'ite juristic orthodoxy was that it lacked adequate institutional foundations even though it was a thousand years old.34 In his analysis of some of Sadr's lectures, Aziz expresses that:

the maraji^r [jurists] have traditionally conducted their policies and made their decisions on the basis of their own individual styles, depending on an inner circle of close associates and family members who gather information, make political statements, and commonly make important decisions. Thus, there was no fundamental pattern either for the process of making decisions or for the content of those decisions. The resulting inconsistencies have caused, according to al-Sadr, social confusion that has weakened the relationship between the marja^riya [or Shi'ite author­ity structures] and the people. Furthermore, there is little or no carry­over of trained ulama who could remain “in office” from one marja^riya to another. Each marja^r has his own entourage; i.e., his own hand-picked

32 1.,125-12.¢,.

33 Ibid., 127, 131: also see Hamid Dabashi's introduction in Motahhari, “The Fundamental Problem in the Clerical Establishment”, 161-63.

34 Aziz, “Baqir al-Sadr's Quest for the Marja'iya”, 145.

representatives and advisors, some of whom are close relatives. In other words, each marja^r starts from “square one" to conduct the course of his business. Therefore, each marja^r differs from all others in his leadership capacity, crisis-management ability, and experience in political affairs.

In order to enhance the power of the marja^riya in society and to heighten their effectiveness, al-Sadr wanted to transform what he called the “individualistic marja’iya” into an “institutional marja^riya." The maraji^r, according to Sadr, must preside over a well-defined organized institution. It is only through transformation of the marja^riya into a complex institu­tion that it can influence events and guide people effectively. 35

Sadr's model of consultative ijtihad is arguably the model that is most condu­cive to adequately responding to modern challenges. This is because it pro­pounds that to deduce accurate knowledge of Sharia, traditional jurists must be informed by subject matter experts (or specialists from other fields of knowl­edge). According to Aziz, Sadr was waiting to become a grand marja^c al-taqlld before he could inaugurate an institutional structure of religious authority (or marja^ciya), as at that point he would have had the necessary financial and reli­gious power to carry out the changes required.36 However, due to his prema­ture death, he never got an opportunity to become a grand marja^ral-taqlτd, and hence his theory of consultative ijtihad never came to fruition. At this junc­ture, it may be correct to assume that it was Sadr's novel epistemology, and his theoretical acceptance of evidence that generates any possibility (ihtimal) of Sharia, that drove him to conceive a consultative model of jtihad.37

Nevertheless, a cynical reading of the Usulr discourse suggests that ortho­dox clerics are generally resentful towards reassessing their epistemological assumption regarding the existential nature of certainty, as they are aware that doing so can have adverse repercussions for current authority struc­tures. They acknowledge that by accepting an epistemology that downplays

36 See Az⅛ The Role of MahammadBaqh al-⅛^t^cb hl Shta PoittcaiActivlsm hl Iaqfrom,958to,980.

37 It is important to note that although Sadr never got a chance to set up a consultative model of ijtihad, attempts to form such models continues by Shi'ite seminarians. For instance, Shi'ite seminarian and academics have recently formed a consultative model known as the International Centre for Collective Ijtihad (icci). The centre brings together a body of jurists (or mujtahids) who in consultation with subject-matter experts (such as doctors, scientists, economists etc.) claim to provide “a more accurate understanding of Sharia than the endeavours of an individual mujtahid’ see ICCI, Most Frequently Asked Questions, retrieved 9th September 2021, from https://www.collectiveijtihad.org/faq. the centrality of certainty, and instead propounds that knowledge (or Sharia knowledge) can be obtained through conjecture, would naturally entail them in sharing their intellectual dominion with scholars and specialists from other, non-seminarian, fields of knowledge. This affects the stronghold orthodox clerics enjoy over the Shi'ite community worldwide and their overall status as the sole representatives of the Twelfth Hidden Imam.

In contrast, a more sympathetic reading of the Usulr discourse may suggest that orthodox clerics (including Ansari, his contemporaries, and successors) constructed a legal epistemology with the primary objective of solidifying their stronghold over Shi'ite intellectual circles against rival Akhbaris. Accordingly, their immediate concern was never to deal with modern challenges or to approach Sharia in a manner that is compatible with modern, albeit largely western, values and institutions. In fact, it can be said that due to decades of Shi'ite-majority countries being immersed within Middle Eastern sociopolit ical turmoil, orthodox Shi'ite scholars generally maintain an anti-western out­look and are suspicious of philosophical and intellectual innovations found and promoted by western scholars. As such, western works in the areas of epis­temology and natural and social sciences, together with numerous issues that affect Shi'ite Muslims living outside Middle East, are not made easily acces­sible to scholars and students to learn or critique within traditional seminar­ian structures. It can be suspected that, as relations between Shi'ite majority countries and western countries become more affable, orthodox scholars may obtain greater access to the intellectual heritage of the West. Access to a larger pool of philosophical ideas can indeed compel rationalist Usulis to reassess their current epistemological assumptions in favour of assumptions that are more defendable or justifiable.

In essence, it can be concluded that, for Shi'ite orthodoxy to continue its dominance over Shi'ite intellectual circles, and for orthodox clerics to con­tinue being authoritative representatives of the Hidden Imam, their opinions (or their ijtihad) must remain relevant to their followers amidst an array of reformist, albeit non-orthodox, opinions that are increasingly easily avail­able due to advancing technology. Instead of advocating a legal epistemology that leads orthodox clerics to give preference to a literalistic approach that is criticised for creating fundamentalist tendencies, the rationalist discourse of legal theory has space to be reinvented so that it adopts an alternative justifi­able legal epistemology that effectively allows orthodoxy to approach Sharia knowledge in a dynamic manner and equips it to provide adequate solutions to modern challenges.

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