Here the Pen Broke and Shattered: The Contraction, Expansion, and Impasse of Jurisprudential Reformation

 Here the Pen Broke and Shattered

(The Contraction, Expansion, and Impasse of Jurisprudential Reformation)

 Ayoub Afzali

December 1, 2024

The debate between Soroush and Alidoust concerning the relationship between jurisprudence and reason ultimately reached a whirlpool that revealed the point of contention, which had seemingly been originally formulated as a genuine, scholarly/jurisprudential inquiry, is entirely a subsidiary discussion and a non-independent issue. My main claim is that pursuing this issue will lead to the dissolution of the problem of the "relations between jurisprudence and reason," as well as the failure of the "remedial jurisprudence project," at least for seminary neo-thinkers and religious intellectuals. Therefore, the two aforementioned currents are faced with a question that, on the one hand, negates the continuity and coherence of jurisprudence as a discipline, and on the other hand, will remove jurists from scholastic jurisprudence and traditional authority (just as Kant, until further notice/until the answers to the questions of his critical philosophy became clear, removed all metaphysicians from their work). It should be noted that the author in this piece does not claim to offer a specific proposal or solution, but is in the position of describing a situation and its consequences.

In my opinion, the two currents of Iranian religious modernists (seminary neo-thinkers and the majority of religious intellectuals), insofar as they are concerned with reforming jurisprudence, are both practitioners of a single project. Some, from a first-order perspective and from the position of juristic authority, speak for a new jurisprudence, and some, from a second-order position and with academic literature, are a kind of assistant, critic, or ideator of new paths to free jurisprudence from its challenges.

The situation of jurisprudence as an indigenous science is, from various aspects, a critical one that many seek to remedy. However, what generally occurs does not fall outside these two states: either it is of the "jurisprudential reformism" type, which seeks to resolve the conflict between jurisprudence and modern rational criteria (custom, ethics, law, philosophy, democracy, etc.)—this reformism has various levels (intra-jurisprudential, jurisprudential-principles, and philosophy of jurisprudence)—or it leads to an obstructionist approach that cedes at least half of jurisprudence (transactions in the broad sense) to modern human sciences. Soroush, who once, from a contraction and expansion perspective, hoped for the reconstruction of jurisprudence, today, in his summation and addressing those who have followed his path of contraction and expansion, warns that this path is a dead end and that, except in limited areas and even then only to preserve the outward appearance of acts of worship, one cannot hold out hope for jurisprudence (of course, this change of position stems not from deficiency but from Soroush's moral and intellectual courage in not remaining trapped by his previous findings).

The rational encounter with jurisprudence is such that at an elementary and intermediate level, and in its simplified form (such as defining reason within the bounds of commonly accepted conventions and moral intuitions), it is promising, unties knotted complexities, and demonstrates a robust science that is both jurisprudence and functional, both ethical and possessed of legal positions, and so on... "so that you may know it is adorned with many arts." But as soon as we reach the issue of jurisprudence and reason at the level of fundamental theories, especially in defining reason, the door to philosophy also opens. On the one hand, moral reason with a religious perspective (philosophical theology) finds itself as an alternative to jurisprudence (at least for all chapters of transactions in the broader sense) and renders it obsolete, and on the other hand, it raises fatal questions about the degree of validity of jurisprudential rationality. Suddenly it becomes clear that, in Kant's phrase, the dove of reason takes flight in an infinite space, and no specific, agreed-upon path or destination is in sight (of course, I mean not the abstractness of concepts but the collapse of the problem). What is the definition of reason? What are its functions? How much does it understand? To what logical implications do the paradigmatic shifts of philosophy in confronting reason bind us? What consequences do the changes of paradigms from the ontological approaches of Plato, Aristotle, and Avicenna to Kantian epistemology, Hegelian idealism, the approach of analytic philosophy of language, pragmatism, and the new views of contemporary analytic and continental philosophers have for the reconstruction of the definition of rationality? Must we content ourselves with the limited and worn-out scholastic reserves, where incidentally, amidst thousands of pages of jurisprudence and legal theory, only a few lines speak of reason? How can the opinions of the great jurists (from Shaykh Tusi to Khoei and Montazeri and others... on rationality, philosophy of law, philosophy of ethics, and so on)—which are usually limited to a few paragraphs and outside any paradigm that generates dialogue with modern reason—be compared with professional philosophers who, for about five hundred years outside the scholastic mentality, have written thousands of philosophical treatises? Truly, in the position of assaying, can such works be considered original research, or are they more a kind of self-deception and deception of others, or, more optimistically, a game to strengthen the mind (a futile effort is better than slumber)?

I suspect that the users of the "Restorative Jurisprudence Project," who are seminary and university jurisprudential thinkers / the general religious intellectuals, also attribute a traditional authenticity to jurisprudence; that is, firstly, they consider jurisprudence the primary institution for defining religious norms and accept the authority of jurisprudence; secondly, they recognize it as a dynamic discipline. Consequently, jurisprudence, like a scientific field, has specific principles, problems, and methods, and they still wish to redefine it in a new form and present new texts for teaching it in seminaries/university classes—all of which, of course, are among the traditional missions of jurists, and the jurisprudential modernists (seminary-university) are in agreement with the predecessor jurists on this. In other words, when new-thinking jurists and religious intellectuals bring reason into their jurisprudential studies, they pursue at least three main goals: (1) guiding jurisprudence through the crisis/theoretical challenges of jurisprudence (restorative approach); (2) preserving the credibility and coherence of jurisprudence as a seminary field/discipline (preserving a scholarly tradition in the seminary); (3) preserving the authority and referentiality of jurisprudence/jurists within the religious community.

Given the proliferation that has occurred in the concept of rationality in the modern era, and that even in philosophy, rather than having dominant discourses or intellectual giants, we are faced with a democratized situation with a limited sphere of influence for thinkers, it seems that the “project of jurisprudential reformation,” if it does not wish to content itself with the opinions of the ancients in re-reading the concept of rationality, will inevitably step onto the path of epistemological pluralism. And this path, however much it may please someone who has concocted something called contemporary jurisprudence or modern foundations of jurisprudence that lacks the previous problems, will face the same objection raised by Soroush: that this event is the expansion of reason and the contraction of jurisprudence, heralding the end of jurisprudence. Moreover, the more unfortunate consequence is that this path will ultimately yield no consensus-building discourse like the old principles of jurisprudence or the inferential method of traditional jurists (because, as we pointed out, opening the door to the study of reason in its broad sense and dialogue with diverse philosophies will lead to the adoption of divergent positions, especially since it is essential to realize that each particular conception of rationality presents a different research program). Thus, various types of definitions of rationality will become the focus of discussions, and their proliferation will lead to the further weakening of the discipline of jurisprudence, and the diversity and deep rift among approaches will leave no coherent body of knowledge called jurisprudence. Therefore, the “project of jurisprudential reformation” will prove sterile and unsuccessful in at least two respects: (1) in preserving jurisprudence as a discipline and continuing its scholastic or academic tradition (thus, with the multiplicity of rational approaches and research programs, ultimately no agreed-upon and consensus-building discipline for teaching jurisprudence based on the views of new-thinking seminarians and religious intellectuals will take shape).

(2) in preserving the authority of jurisprudence/jurists as the reference for moral-legal norms; the legal modernists will also fail in this regard. The collapse of the formal framework of jurisprudence and the emergence of multiple rational reconstructions of it is practically a paradigm shift that, firstly, transforms transmission-based jurisprudence into reason-based jurisprudence, gradually blurring and erasing the boundary between rational jurisprudence and the modern humanities, and secondly, replaces a single traditional narrative of transmission (traditional jurisprudence) that held undisputed authority with “multiple and manifold narratives of reason,” and the representative of each of these micro jurisprudential-rational narratives will be minorities with different and sometimes contradictory tendencies, who, of course, in those very rational discussions, also lack the ability to contend with scholars of the humanities and philosophy.