Javad Sharifi's essay “Islamic Jurisprudence: A Relic of the Premodern World”

Just as the progress and development of human societies are impossible without a specialized division of labor, its absence indicates the simplicity and primitiveness of a society. Social institutions with multiple and all-encompassing functions are generally observed in less developed societies. A tangible example of this is the institution of the clergy in Qajar Iran. During this period, the clergy assumed various and extensive functions such as educating children, resolving legal and judicial disputes, attending to the disadvantaged strata, running religious institutions like endowments and mosques, magical treatments such as writing prayers and breaking spells, representing the people in their demands before rulers, and the like. The modernization of the Pahlavi era stripped the clergy of many of their functions and entrusted them to specialized and newly emerging institutions such as education, the judiciary, the Ministry of Endowments, etc., and this was one of the most important causes of enmity between the clergy and the Pahlavi regime.

In premodern societies, religion is one of the multifunctional social institutions that extends its reach over most aspects of human life and has very little inclination to divide labor with other institutions. And perhaps secularism, in the sense of religion being confined to specific domains, can be related to economic contexts and the specialized division of labor, even before epistemological contexts.

Islamic jurisprudence is also a relic of the premodern world, for which the best conditions for its continued existence are only provided in societies without a division of labor. In the era of the emergence of Islamic jurisprudence, the sciences had not advanced and become specialized as they have today. A jurist was asked about a wide variety of subjects, and he would answer these questions by relying on his knowledge of the sacred texts and, of course, some other sources. The range of these subjects is observable in the chapters and headings of jurisprudential books. Apart from matters of worship and rituals, the jurist was asked about health issues, nutritional issues, legal and judicial issues, economic issues, political and military issues, educational and behavioral issues, family and sexual issues, and the like. But in modern societies, from nutrition and health specialists to lawyers and judges, economists and political scientists, to sociologists, psychologists, and family counselors, all are in a way the modern rivals of jurisprudence and a source of concern for jurists. Evidence of this concern is before our eyes: the effort of the institution of jurisprudence to reclaim its lost territories by constructing compound jurisprudences such as medical jurisprudence, family jurisprudence, economic jurisprudence, nutritional jurisprudence, virtual space jurisprudence, cinema jurisprudence, urban planning jurisprudence, cultural products jurisprudence, and other such constructs.

Sacred Law

But what is the relationship between jurisprudence and the Quran—as the source of legislation for jurists? It seems that in ancient societies, nothing but attribution to the heavens and the cosmic order could serve as a reliable backing and guarantee for the observance of a norm. Even strict laws and severe punishments could not guarantee the complete observance of norms. The vast apparatus of jurisprudence, on a superstructural level, pretended to discover sacred rulings based on the Quran and descended from heaven, while on an infrastructural level, it was a mechanism for presenting as sacred and eternal the systems that had been devised by human reason and intellect for administering society. The sanctification of law, in addition to providing an internal guarantee of enforcement, also met the identity needs of the Islamic community. The Islamic community needed to have its own independent legal apparatus to feel a sense of identity against other civilizations that had far more advanced legal systems, which it, of course, made appear sacred through attribution to its holy book.

A Similar Experience in Iran and the Commodification of Jurisprudence

The Western-centric progress and development during the Pahlavi era, which had threatened the interests and functions of the clergy, was one of the most significant factors in the identity-based confrontation between the Islamic Republic of Iran and the West (America), preventing the new government from utilizing Western models—at least directly—for administering the country and society. Thus, this heavy burden was placed upon the frail shoulders of jurisprudence, and the entry of jurisprudence into an arena that was not its domain led to its commodification. A market based on supply and demand emerged between the government and the institution of juristic learning. The Islamic Republic became a customer demanding the production of specialized jurisprudences for statecraft according to an Islamic model, and the institution of juristic learning, in its struggle to meet this governmental demand, recklessly and hastily loaded this burden ever more onto the camel; a burden that, before many steps had been taken, its crookedness became clear and evident to all.

But regarding the question of what can be done with jurisprudence in the modern era, I know of at least two relatively effective models.

The first model is the "Egyptian model." I say "Egyptian" because this model has a longer history in Egypt than in other Islamic countries. In this model, assuming the possibility of extracting an Islamic legal system, jurisprudence and Sharia are considered as part of the history of legal science and also as one of the possible sources for devising legal systems, and the student, after learning jurisprudence, also learns modern law and works as a jurist. In this model, the word "faqih" is essentially synonymous with the word "jurist."

The other model is the "Hassan Hanafi model," from one of the prominent figures of the Islamic Left in the Arab world. He believes that the existing Islamic sciences are incompatible with the needs and exigencies of the new world, and for religion to answer modern questions, he proposes that all Islamic sciences, especially jurisprudence, must be transformed into one of the modern human sciences. He specifically suggests that the science of Usul al-Fiqh be transformed into the science of methodology, and the science of Fiqh into the three sciences of economics, law, and politics.

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Islamic Jurisprudence: A Relic of the Premodern World

Author: Javad Sharifi; Seminary of Mashhad

Footnote: In completing this piece, I benefited from an idea from my esteemed teacher, Dr. Seyed Mahmoud Nejati Hosseini (sociologist). Mentioning his name was a matter of fairness and trust.

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