Modern Rationality and the Crisis of Fiqh: An Article by Hossein Valeh

Today, with the transformations of the modern world, a number of jurisprudential rulings in the contemporary era (or in certain geographical regions) — not because their subject matter has ceased to exist, but due to the undesirable consequences that their implementation entails — are no longer enforceable. This issue is sometimes referred to as the "crisis of fiqh." Among the proposed solutions for this apparent crisis is the reconstruction of jurisprudential rationality on the basis of modern rationality. This solution, due to its heavy epistemological commitments, revision of established principles of jurisprudence (uṣūl), and improper use of certain theological rules, holds little appeal for traditionalists. Moreover, rather than solving the problem, it merely pushes it one step back. This solution shares one common point with the core problem: an atomistic approach to the derivation of legal rulings.

Various solutions have been proposed for the crisis of fiqh. The debate on this matter continues. What we mean by the crisis of fiqh is that a number of jurisprudential rulings in the contemporary era (or in certain geographical regions) — not because their subject matter has ceased to exist, but due to the undesirable consequences that their implementation entails — are no longer enforceable. For example, the prohibition of usury (ribā) is among the established rulings of fiqh and perhaps one of the necessities of Islamic jurisprudence, yet few doubt that the modern economic system would collapse entirely with the elimination of usury from banking transactions, economic competition and the productivity resulting from competition would be disrupted, monetary and economic management and control systems would be lost, and national and global production growth would be harmed. There are numerous other rulings in various chapters of fiqh that are subjects of similar disputes, such as the inheritance of men and women and of the dhimmī unbeliever, the right to divorce, certain rulings on apostasy, retribution (qiṣāṣ), and prescribed punishments (ḥudūd).

Many efforts have been made to solve this problem, which are classified into two main categories. One category, in defense of these rulings, focuses on the necessity of changing objective conditions and making them favorable for the implementation of jurisprudential rulings. The other category proposes changes in the jurisprudential rulings themselves. The second category has pursued different paths. In this article, we will introduce and critique a solution presented by contemporary religious intellectualism in Iran and developed by Mr. Abolqasem Fanaei in his scholarly book Ethics of Religious Studies. This approach proposes replacing traditional rationality with modern rationality.

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Article Title [English]:

Modern Rationalityand the Crisis of Feqh (Islamic Jurisprudence)

Abstract [English]:

Among the solutions proposed for the current crisis in Islamic traditional Jurisprudence (Feqh) stands out the suggestion to reconstruct jurisprudential rationality on the basis modern rationality. This solution involves too heavy epistemological commitments, a revisionist approach to some of the received theorems in the science of Osul and misuse of some the theological principles accepted almost unanimously by Muslims. Therefore it fails to attract the attention of traditionalists. It fails also because it merely shifts the kernel of the problem rather than solve it. This solution shares the traditional approach it criticizes in one principal failure that is responsible for the crisis; failing to adopt a contextualized approach to jurisprudence rather than the atomistic.

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