On Friday 12 January 2024, Shaykh Haidar Hobbollah came to Mahfil Ali, continuing the conversation on his methodology in deriving Islamic law and its applications in contemporary law.
This session covered Shaykh Hobollah’s methodology in
deriving fiqh rulings with practical examples
to tease out how the methodology works in practice.
I have outlined his methodology in previous blogs based on his previous session at Mahfil Ali (see here),
but to briefly summarise: Shaykh Hobbollah believes that one can only determine
an Islamic (fiqhi) ruling (e.g. Haram / Wajib / a right) if one attains “strong
confidence / almost certainty” regarding the available body of evidence (nothing
can be 100% certain, but this is referring to being as confident as is
reasonably possible, with evidence). This involves looking at all the evidence
in totality (the Qur’an, the narrations, the history), putting them altogether
and determining how confident one can be that this is Allah’s intention.
This approach significantly decreases the scope of Shari’a,
makes the value of the hadith collection significantly weaker (as a single
narration, even if it is sahih (authenticated) would not on its own lead to “strong
confidence / almost certainty”) and creates a number of questions.
It is these questions that we explored at the session, and
which I have summarised below (with some edits based on my own understanding):
Question 1: This methodology must mean that
many rules accepted by most scholars, are not accepted by you. Can you talk
through some examples. For example, let’s talk about a man shaking the hand of
a woman where there is no lust / expectation of lust.
Answer: To reach the conclusion that shaking
hands between genders without lust is haram (prohibited) according to Shaykh
Hobbollah’s methodology, we need to reach “strong confidence / almost
certainty” that this is not allowed – otherwise it would be allowed. The
evidence available includes:
·
A few narrations indicating
that it is not allowed, one of which is sahih (authenticated), and
·
A narration that says that
the Prophet did shake the hand of a woman, although this narration is weak.
This level of evidence is insufficient to give “strong
confidence / almost certainty” so Shaykh Hobbollah cannot reach the conclusion
that it is haram.
There are many similar examples where Shaykh Hobbollah
cannot reach the conclusion of prohibition as the evidence does not reach
“strong confidence / almost certainty”:
·
The prohibition of a woman
being a marja’ or leaders in society (noting the narrations on this
topic are not authenticated by many traditional scholars)
·
The prohibition of a wife
leaving the house e.g. to work, without permission from the husband (noting
Shaykh Hobbollah believes that the violation of the rights of the husband or
wife is a separate point and is the same for both genders)
·
The prohibition of relying
upon women’s testimony on sighting the moon for the first of a month
Let’s look at another example – that of Qasr prayers. In
order to justify the shortening of prayers, we need “strong confidence / almost
certainty”. There are a range of narrations on the topic, which has led to
scholars falling into three groups:
·
Some saying that you need
to travel a specific distance from the hadd al-tarakhkhuss
·
Some saying that you should
not be tired as a result of the travel
·
Some specifying a time
period i.e. 24 hours of travel
What you can have “strong confidence / almost certainty” in
from the number of texts, is that there is a provision for praying less in
certain circumstances when you are travelling. However, you cannot reach
“strong confidence / almost certainty” that if you travel for a couple of hours
(even over a long distance) and you’re not tired, that this would apply. Shaykh Hobollah then highlighted that one
needs to then refer to the Qur’an, where the verse on breaking one’s fast is
clear
Ramaḍan is the month in which the Quran was revealed as a
guide for humanity with clear proofs of guidance and the decisive authority. So
whoever is present this month, let them fast. But whoever is ill or on a
journey, then ˹let them fast˺ an equal number of days ˹after Ramaḍân˺. Allah
intends ease for you, not hardship” (Qur’an, 2:185)
The verse is clear in that the intention of breaking fast
due to travel or illness is that Allah does not intend hardship for you, and
therefore, one can reach “strong confidence / almost certainty” that Qasr
prayers are relevant when the extent of the travel is so much that it leads to tiredness
and hardship.
[one of the audience questions afterwards, challenged this
and asked whether this creates undue subjectivity in the law that impedes the
overall united Muslim community. Shaykh replied that actually there are
multiple rules where subjectivity is part and parcel of the rules e.g. the
rules on ghina’ (singing / music), where it is the incitement to lust
that is often seen as the determinant of prohibition; and similarly, when it
comes to breaking one’s fast due to illness, this is also a subjective
measure. It is you and you alone that
can ultimately decide on your ability to fast during illness (even if a doctor
may provide some advice) and there is no objective measurement of how ill you
have to be to break your fast]
[At the dinner beforehand, we discussed the concept of
slavery. He noted how actually to enslave an individual, required a religiously
mandated war, and that the only option in those cases (which aligned with the
“international law” of the time) was to barter that individual you had taken as
a slave for money, or for Muslim prisoners etc. Despite so many texts, there
aren’t other ways of enslaving individuals mentioned and as such, this is not
an issue anymore].
[another example worthy of note is Shaykh Hobbollah’s view
on women’s unilateral right to divorce. He believes that there is not
sufficient evidence to reach “strong confidence / almost certainty” that women
have this right. He highlighted how in the 300 years between the Prophet
(SAW)’s time and that of the Imams (AS), there are no such narrations despite
there being the potential for this issue to be raised.]
Question 2: Can you reach any conclusions on
Islamic legal laws (fiqh) if the bar for acceptance is so high?
Answer: Yes, there are lots of examples where
the evidence is overwhelming. For example, praying, fasting, following the
Prophet and those in authority amongst you (ulul `amr min kum) etc.
There are many such examples.
Let us consider an example that is explicit in the Quran and
ahadith: the prohibition of pork. This is explicit many times in the Qur’an
(2:173, 16:115), in narrations and in the practice of Muslims. We can reach
“strong confidence / almost certainty” that this is prohibited Islamically.
Question 3: Can any rules – even ones that we
can establish by your methodology – change with context and through time?
Answer: Yes, but we have to be careful. Let’s
lay out a few important points:
·
Context (time/place)
clearly can matter: We have many cases where rules at one time were
different later or in another context. This is the concept of a “change of
subject”. [I’ve added this point: The example of the obligation of doing Tawaf
inside the Maqam Ibrahim at the time of the Prophet, was loosened at the time
of the 6th Imam (AS)].
· We cannot assume every rule may change with context
(time/place): If every rule is subject to change – then how can we reach
any conclusion on any ruling? There has to be some meaning for the “completion
of our religion”.
· There need to be some rules to determine whether a ruling
would be different in a different circumstance:
o If you can reach “strong confidence / almost certainty” on the
rationale for a rule (either explicitly in a text, where the term in usul
al-fiqh is qiyas mansus al-illa) or by another mechanism (where the term
in usul al-fiqh is tanqih al-manat), then you can conclude that if the
rationale is different, the ruling is different.
o Where we cannot have “strong confidence / almost certainty” of
the rationale, we have to be careful about implying that the ruling should be
different in a different circumstance. How can you know? For example, can we be
“strongly confident / almost certain” that Allah wants us to do something
different in a new context because the system has changed; or perhaps he wanted
us to do the same in that new context, to help change the system back.
o Whilst you can reach “strong confidence / almost certainty”
about specific principles (e.g. justice, fairness etc.), we have to be careful
in how we justify the use of these principles. For example, we may consider
something to be unjust, but can we be “strongly confident / almost certain”
that it is actually unjust, and doesn’t have another just rationale?
[Note: if you reach the conclusion that a
rule is, for example, actively harmful, then a secondary principle such as la
darar can be used to change the ruling in that new instance – however, that
is not a change in the rule in and of itself]
Question 4: So how does this approach on
context work in reality? Can you share some examples?
Answer: Let us consider a series of examples:
·
Example of qiyas mansus
al-illa: consider the ruling of intoxicants. The rule is very clear
that the reason for wine being prohibited, is that it is an intoxicant.
Therefore, wine that is not intoxicating, is not prohibited. And other
intoxicants are also prohibited.
·
Example of women witnesses
in general – the traditional rule is that the value of a woman’s testimony is
half that of a man. Shaykh Hobbollah noted that the reason is provided in the
text: “so that one may remind the other” (Qur’an, 2:282), implicitly based on
the differentiated education levels between men and women, and in order to
ensure that the testimony is valid. In today’s society, where education levels
are similar between the genders, a differentiated value of testimony based on
gender is not justified to retain this goal of achieving testimony that is
reliable.
·
Example of hudud punishments
(e.g. cutting the hand of a thief). In Shaykh Hobbollah’s view, he is “strongly
confident / almost certain” that the reason for the rule is to deter theft. In
a context where we can be “strongly confident / almost certain” that theft is
not deterred by cutting of the hand, the rule is no longer valid.
Question 5: Can you provide some examples
where context does not result in a change in the law?
Answer: Let us look at the example of
inheritance, where women are mandated half the inheritance of men. Some might
try and argue that in today’s society, where women have significantly greater
financial responsibility, the context is different – and as such, inheritance
should not be differentiated by gender, or it should be based on need rather
than gender. Shaykh Hobbollah’s view is that the threshold for a change in the
law due to a change in the context is not met:
·
We can be “strongly
confident / almost certain” that this differentiation by gender is what Allah
had wanted at that time: as the underlying rule is explicit and in the
Qur’an (Qur’an, 4:11-14)
· We cannot be “strongly confident / almost certain” that the
rule on differentiated inheritance by gender should change:
o
He notes that throughout
the 300 years from the time of the Prophet (SAW) and the times of the Imams
(AS), there was not a single narration where one of the Ma’sumeen suggested
that the rule should change, even though there were also cases of financially
independent women. If there would be a different ruling for a different
context, this would have been raised during this time.
o
He notes that deriving the
rationale for the rules on inheritance is very difficult to determine (and
definitely not enough at the level of being “strongly confident / almost
certain”). For example, why should a wife inherit a quarter if the husband who passes
away is childless; and an eighth if the husband has children. These figures and
differentiating figures be easily explained or understood. Therefore, one is
not able to discern the rationale.
·
As a result, we should
assume that the original ruling is still applicable i.e. differentiation by
gender is the Islamic rule on inheritance.
[Note: Shaykh Hobbollah’s view is
that equality (as it is understood today) is not an Islamic principle – this
ruling is an example of this position]
Question 6: What are the implications of your
view on the scope of Shari’a being so limited? Does it mean that Islam has
nothing to say on ethics? What about other issues, such as the environment or
the system of government?
Answer: Islam has a lot to say on ethical
issues and morality. In fact, there is much more evidence on the Islamic
position on ethical issues such as lying, backbiting etc., than on most fiqh
issues. These are clear and the evidence easily crosses the threshold of being
“strongly confident / almost certain”.
However, on other broader issues, such as the environment or
the system of government, there is “strong confidence / almost certainty” on
principles or goals of Islam e.g. “being a steward on the Earth”, “justice”,
“fairness” etc., but no “strong confidence / almost certainty” on the
implications of these principles. These should be left up to society and the
government of the day to determine.
As such, it is difficult to reach the conclusion that there
is a specific type of economic system that is the Islamic way [in fact, for
example, we see that when communism and socialism was popular in the 1950s and
1960s, many muslim scholar propagated the idea that Islam was of a socialist
hue, and now that capitalism and free market economics is popular, Muslim
scholars are putting forward ideas that Islam supports liberalism and free
markets. Shaykh Hobbollah is cautious of being swayed by the prevailing
sentiments in society. Shaykh Hobbollah therefore is not a supporter of calling
very specific positions on the environment or system of government as
“Islamic”.
[In the Q&A, he noted how the wilayat al-faqih method of
government, is primarily based on narrations that do not reach the level of
being “strongly confident / almost certain”. He therefore considers these to be
options that communities can choose – but is not necessarily or inherently
Islamic].
Question 7: What does this approach mean for
theological issues or questions of belief (Aqidah)?
Answer: If you need “strong confidence /
almost certainty” for fiqh, you definitely need it for belief. In fact, this is
a well-agreed position amongst all scholars.
