Visions of Sharīʿa: Contemporary Discussions in Shī ͑ī Legal Theory

240 Pages·2020·1.042 MB·English

by  Ali-reza Bhojani, Laurens de Rooij, Michael Bohlander

Visions of Sharīʿa
Studies in Islamic Law
and Society
Founding Editor
Bernard Weiss
Editorial Board
Ruud Peters
A. Kevin Reinhart
Nadjma Yassari
volume 50
The titles published in this series are listed at brill.com/sils
Visions of Sharīʿa
Contemporary Discussions in Shī ī͑ Legal Theory
Edited by
Ali-Reza Bhojani
Laurens de Rooij
Michael Bohlander
LEIDEN | BOSTON
Library of Congress Cataloging-in-Publication Data
Names: Bhojani, Ali Reza, editor. | De Rooij, Laurens, editor. | Bohlander,
Michael, 1962– | Al-Mahdi Institute, organizer. | University of Durham,
host institution, organizer.
Title: Visions of shariʻ̄a : contemporary discussions in Shi’i legal theory
 / edited by Ali-reza Bhojani, Laurens de Rooij, Michael Bohlander.
Description: Leiden ; Boston : Brill, 2020. | Series: Studies in Islamic
 law and society, 1384-1130 ; vol.50 | Includes index.
Identifiers: LCCN 2019032181 (print) | LCCN 2019032182 (ebook) | ISBN
 9789004378384 (hardback) | ISBN 9789004413948 (ebook)
Subjects: LCSH: Islamic law—Congresses. | Shiʻ̄ah—Doctrines—Congresses.
Classification: LCC KBP350 .V57 2019 (print) | LCC KBP350 (ebook) | DDC
 340.5/90182—dc23
LC record available at https://lccn.loc.gov/2019032181
LC ebook record available at https://lccn.loc.gov/2019032182
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface.
ISSN 1384-1130
ISBN 978-90-04-37838-4 (hardback)
ISBN 978-90-04-41394-8 (e-book)
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Contents
Preface vii
Notes on Contributors ix
Visions of Sharīʿa: An Introduction 1
Ali-Reza Bhojani
1 The Reception of Factuality (taṣwīb) Theories of Ijtihād in Modern Uṣūlī
Shīʿī Thought 10
Seyyed Mostafa Mohaghegh Damad
2 Reassessing the Pivotal Role of Certainty in Modern Shīʿī Uṣūlī Legal
Method: A Case for Accepting a Wider Range of Evidence in the Inference
of Sharīʿa Precepts 26
Hashim Bata
3 The Role of the Quran in Legal Reasoning (Ijtihād): A Shīʿī Perspective 57
Rahim Nobahar
4 From Theory to Practice: The Role of the Subject in the Derivation of
Rulings and Its Potential in Creating a System of Case Law for the
Operation of Shīʿī Law 83
Imranali Panjwani
5 Strategic Juristic Omission and the Non-Muslim Blood Price:
An Examination of Shīʿī Fiqh and Practice 129
Haider Ala Hamoudi
6 Towards the Hermeneutics of a Justice-Oriented Reading of Sharīʿa 149
Ali-Reza Bhojani
7 Maqāṣid al-Sharīʿa Discourse in Contemporary Shīʿī Jurisprudence 174
Hassan Beloushi
vi Contents
Epilogue 194
Robert Gleave
Appendix: al-Sayyid ʿAlī al-Ḥusaynī al-Sīstānī on Uṣūl al-fiqh in Twelver
Shīʿī Thought: Its Importance and Historical Phases 205
Ali-Reza Bhojani
Index 214
Preface
This collection of papers is the result of a two-day conference held in
August 2015 in St Aidan’s College at Durham University, organised jointly by
the Al-Mahdi Institute in Birmingham and Durham’s research group Islam,
Law and Modernity (ILM). It was an attempt to give a voice to the Shī ī͑ side of
Islamic jurisprudence, since most of the discussions about Sharī a͑ that is in the
public domain these days, and has been for some time, are centered on the rich
material provided over the centuries by Sunnī jurisprudence.
The majority of modern political Islamist teaching and rhetoric is in fact
based on an often corrupt understanding of Sunnī scholars who mainly lived
and taught centuries ago. Sunnī jurisprudence has been concerned to a large
degree with the right balance between adhering to tradition and consensus on
the one hand (taqlīd and ijmā⁠ʾ), and the need for adapting to modern times
(ijtihād) on the other. This is frequently highlighted by the debate surrounding
the closure of the “gate to ijtihād” in the 10th century. Adaptation to modern
circumstances is seen by the more conservative section of the Sunnī u͑ lamā as
bid a͑ , or unlawful innovation.
Shī ī͑ jurisprudence has a similarly long pedigree and is, of course, subject to
similar conditions and struggles between the demands of modernisation and
the reluctance of the traditional conservative spectrum. However, and this is
something which becomes clear when discussing legal philosophy with Shī ī͑
scholars from the renowned schools of Iran in particular, there is an avid desire
even among religiously traditional scholars to engage with ideas and concepts
from foreign backgrounds. As one of the editors experienced personally when
first attending a conference of Shī ī͑ scholars at Durham University, and later
on a seminar at the Al-Mahdi Institute, the frequency, ease and mastery with
which these scholars engaged with European thinkers such as Hegel, Kant,
Schleiermacher, or Kierkegaard in order to make a comparative point, was
breath-taking, and something he had not encountered to the same degree in
similar venues with Sunnī colleagues.
Thus, it seems that a wider and better dissemination of Shī ī͑ thought has the
potential of adding a new and exciting aspect to the intercultural and interre-
ligious conversation about the Sharī ā͑ . The chapters in this volume are meant
to be a contribution to the discussion about legal theory approaches that we
hope will prove fruitful for the comparative field as well as those with a specific
interest in Islamic legal thought.
We would like to express our deep gratitude to Dr Susan Frenk, Principal
of St Aidan’s College, for the generous additional support from the College.
viii Preface
Thanks are also due to Shaykh Arif Abdul Hussain and the Al-Mahdi Institute
for their support throughout, and in particular during the somewhat ardu-
ous process of collecting and converting the conference papers in to the form
presented here. We are also grateful for the assistance of Nazmina Dhanji and
Mohsin Najafi.
Ali-Reza Bhojani
Laurens de Rooij
Michael Bohlander
Oxford, Chester, and Durham
August 2019
Notes on Contributors
Hashim Bata
is a lecturer and one of the directors at the Al-Mahdi Institute. He is also an
associate lecturer in Islamic studies at the University of Birmingham. He
completed seminary (ḥawza) studies at the Al-Mahdi Institute, attained a BA
from the Islamic College, and an MA in Islamic Studies from the University
of Warwick. His Ph.D. (University of Warwick, 2014) focused on legal epis-
temology in Modern Shīʿī uṣūl al-fiqh and forms the basis of a forthcoming
monograph.
Hassan Beloushi
is a teacher at the Hawzat al-Muntadhar in Karbala, Iraq. He studied in the
Hawzat al-Qa’im in Syria and received his Ph.D. in Islamic studies at Exeter
University. His research focuses on ethics, secularism and Islamic law. He has
published a number of books and articles, including the Arabic monograph
The History of Imāmī Legal Theory (Dār al-Rafidayn, 2017).
Ali-Reza Bhojani
is Senior Lecturer in Islamic Studies at the Markfield Institute of Higher
Education, Lecturer at the Al-Mahdi Institute, and Research Associate at the
University of Oxford. His research focuses on theological and ethical issues in
the Islamic intellectual traditions, with a particular interest in Uṣūl al-fiqh. He
is author of Moral Rationalism and Sharīʿa: A Study of Independent Rationality
in Modern Shī ī͑ Uṣūl al-fiqh (Routledge, 2015).
Michael Bohlander
is a Professor of Law at Durham University and was the International
Co-Investigating Judge in the Extraordinary Chambers in the Courts of
Cambodia from July 2015 to July 2019. His candidature was submitted to the
United Nations by the German Government; he was subsequently nominated
for the post by United Nations Secretary-General Ban Ki-moon. After the ap-
proval of the Cambodian Supreme Council of the Magistracy, King Norodom
Sihamoni of Cambodia appointed him to the ECCC bench by Royal Decree of
31 July 2015. He continues to serve as a judge of the Kosovo Specialist Chambers
in The Hague to which he was appointed in 2017. He had been a civil and criminal
pre-trial, trial and appellate judge in the courts of the East German Free State of
Thuringia prior to starting his academic career. He pursued his legal studies at
the Faculty of Law of the University of the Saarland. From 2010–2014, Professor
x Notes on Contributors
Bohlander was the Visiting Chair in Criminal Law at the Rijksuniversiteit
Groningen in the Netherlands. In 2012, he was the first non-Muslim visiting
scholar ever to teach at the Faculty of Law of Al-Azhar University in Cairo. His
interests lie in comparative and international criminal law.
Seyyed Mostafa Mohaghegh Damad
is a member of the Academy of Sciences of Iran and a professor in the Faculty
of Law at Shahid Beheshti University. He studied at the Fayzieh School in
Qom, and achieved the degree of Ijtihād (Ayatollah) in 1970. He received his
Ph.D. in Law (Doctorat en Droit) at the Catholic University of Louvain-la-Neuve
in 1996. He is the author of 27 published books and more than 50 academic
journal articles.
Robert Gleave
is Professor of Arabic Studies at the University of Exeter, UK. He is principal
investigator of the European Research Council advanced award “Law, Learning
and Authority in Imami Shiʾite Islam”. His publications include Inevitable
Doubt: Two Shiʿ̄i ̄Theories of Jurisprudence (Brill, 2001), Scripturalist Islam: The
Thought and Doctrines of the Akhbari School of Imāmi ̄Shiʿism (Brill, 2007) and
Islam and Literalism: Literal Meaning and Interpretation in Islamic Legal Theory
(Edinburgh University Press, 2012).
Haider Ala Hamoudi
is the Vice Dean of the University of Pittsburgh School of Law. His scholar-
ship focuses on Middle Eastern and Islamic Law. In addition to his numerous
articles and book chapters in a wide variety of law school journals, university
presses and other scholarly venues, he has coauthored a casebook on Islamic
Law published by Aspen, and is under contract with West to author a nutshell
on Islamic Law.
Rahim Nobahar
is Associate Professor at Shahid Beheshti University Law School, Tehran. He
achieved the degree of Ijtihād from the seminaries (Hawza) in Qom and ob-
tained his Ph.D. in Criminal Law and Criminology from Shahid Beheshti
University. He has taught courses including Islamic Law, Qurʾanic Exegesis,
and Philosophy of Law in Mofid University and Shahid Beheshti University.
His publications include more than 12 books and 60 academic articles across a
range of subjects in Islamic studies.