“Tolerance with the Pebble in the Debate on Jurisprudence and Reason” by Farhad Shafti

Tolerance with the Pebble in the Debate on Jurisprudence and Reason[1]

Farhad Shafti

My generation probably remembers the short but sweet and instructive text about the pebble and the shoe in (if I am not mistaken) the old second-year middle school Persian textbook. The author uses the analogy of a pebble in the shoe to make a point about facing life's difficulties. By referring to the habit of shifting the pebble this way and that, trapping it between the toes, and enduring its pricks, he concludes that if we had taken the pebble out of the shoe from the very beginning, our trouble would have been less.

I benefited from the debate between Abdolkarim Soroush and Abolqasem Alidoust on the program Azad, yet at the same time, this debate reminded me of the text about the pebble in the shoe. Let there be no misunderstanding: I neither mean that the discipline of jurisprudence is like a pebble in a shoe, nor do I mean that the debate was as fruitless and futile as playing with a pebble in a shoe. In my view, very important topics were raised in the debate, and even for a listener or viewer familiar with these topics, this debate can be very enriching.

So why did this debate remind me of the text about the pebble in the shoe? Because, as I see it, whether deliberately, out of expediency, or in accordance with the routine of such debates, far more fundamental questions that could, in agreement or disagreement, bring the two sides to their destination sooner were either not entered into the discussion or were touched upon only in passing. The text about the pebble in the shoe became, in my mind, an allegory for merely alluding to certain foundational premises and prior discussions instead of reflecting upon them, and in contrast, relying on functions and posterior discussions in this debate.

The two sides of this debate had perhaps agreed to take up the thread of the discussion from a midpoint so that the discussion would fall within the framework of the presuppositions of a larger segment of the audience. Discussing functions and posterior matters is, of course, beneficial and engaging. Nevertheless, raising prior and foundational questions, although it would have made the discussion more tumultuous than it was, might have been more effective in terms of logical order and in clarifying the point of disagreement and revealing the crux of the various parts of the discussion. After that, or concurrently with it, posterior discussions could also have been raised so that, on the whole, a comprehensive and complete discussion would take shape.

In this short piece, I raise eight foundational questions that are of great importance in the discussion of jurisprudence, the scope of jurisprudence, and its relationship with reason. I believe that this discussion, from whatever point it begins, if it follows a logical course and if at least one party to the debate is not bound by the conventional (common) understanding of religion, will inevitably, sooner or later, arrive at such foundational questions, or at least, like this three-part debate, will be steered toward such questions. These foundational questions are, of course, interconnected, and the answer to one will influence the answer to the rest:

• Question One, Definitions:

Perhaps all or many of the questions I raise below fall outside the framework agreed upon for this debate, but what I write in this paragraph was, in my view, essential to this debate and its absence was sorely felt. It would have been very useful and illuminating if, in this debate, an agreement had been reached on key terms and expressions before any discussion. For example, what is meant by jurisprudence and what is its difference from Sharia? What is meant by the expansion of jurisprudence and the contraction of jurisprudence? In the course of the discussion, the two sides became aware of each other's different understanding of these terms and expressions, but very late.

• Question Two, the Dynamism and Stasis of Sharia:

Regarding jurisprudence and the scope of jurisprudence, another dimension worth discussing is the question of the stasis or dynamism of Sharia and, following it, jurisprudence. Have the rulings of religion come to stay, or have they come, in the words of Khaled Abou El Fadl, author of the book Reasoning with God, to be the beginning of a movement?[2] The question of the contraction and expansion of jurisprudence is related to the question of the dynamism and stasis of jurisprudence. In fact, the question of stasis or dynamism can be a prerequisite or at least a prelude to the question of the contraction and expansion of jurisprudence.

• Question Three, Jurisprudence and Ethics:

A portion of the debate touched on the relationship between jurisprudence and ethics. Soroush maintains that jurisprudence is devoid of ethics and deals only with the outward form of ethics. Alidoust considers a part of jurisprudence to be concerned with ethics. In my view, the discussion in this section could have been somewhat more focused, detailed, and profound, addressing the relationship between jurisprudence and ethics, particularly the fundamental question of whether ethics takes precedence and superiority over the rulings of Sharia and, consequently, jurisprudence, or not, and in any case, what is their relationship?[3]

• Fourth Question, the Purpose of Religion:

One of the most important and decisive topics raised at the beginning of this debate, which remained unresolved, was the question of the purpose of religion. What, in truth, is the purpose of religion? This question can be answered with two approaches: a text-centered approach (which seemed to be Alidoust's preference) and a reason-centered approach (which seemed to be Soroush's preference). How can the dispute over the scope of jurisprudence reach a conclusion (even an agreement to disagree) if the disputing parties' views on the purpose of religion, which is the source of jurisprudence, are not first clarified? If we hold that religion came for spirituality (in whatever sense), then unless a worldly matter is clearly seen as obstructing spirituality, there will be no need to extend jurisprudence to that matter. Conversely, if we hold that religion is a blueprint for life, then all matters of life can be subjects of jurisprudence.

• Fifth Question, the Nature of Religion:

Fundamentally, and considering that many religious rulings are of a confirmatory (imḍāʾī) nature and some of them were only uttered through the tongue of revelation after a question or problem arose, are the non-devotional and non-individual rulings of religion entirely part of the essence of religion,[4] or are they, so to speak, of the category of accidents? Following the previous question, if we hold that religion came to improve all aspects of life, then one can argue with greater fervor in favor of the non-accidental nature of religious rulings. However, if we see the function of religion as more limited than this, then the path for arguing the accidental nature of many rulings will become smoother.

• Sixth Question, the Basis for the Need for Rulings:

Regarding the relationship between reason and jurisprudence, discussions were raised, particularly in the third part of the debate. This discussion could be addressed in a more focused and fundamental manner. Is the revelation of specific Qur'anic rulings due to humanity's inability to know the right path, or can it be claimed that because the direct addressees of the revelation did not possess, as people do today, the accumulated global experience, the application of reason, and expertise in certain subjects, the role of Sharia was to correct certain unethical and irrational methods (within that temporal context and cultural framework)? This is what Ahmad Qabel proposed in the form of the theory of rational Sharia and the discretionary sphere of reason (manṭiqat al-farāgh), and in my view, it is a foundational subject worthy of attention.[5] Indeed, references to the views of Ahmad Qabel, even with a critical eye, were absent from the discussion of jurisprudence and reason in this debate.

• Seventh Question, the Addressee of Religious Propositions:

The Qur'an certainly has universal propositions and a universal addressee, but is the predominant concern and general discourse of the Qur'an also universal and worldwide, or, based on the content of the verses and also as testified by verses that consider the primary intended audience of the Qur'an to be the inhabitants of the place of revelation's descent (Umm al-Qurā wa man ḥawlahā), are the main addressees of the Qur'an local? As Allameh Tabatabai states in Al-Mizan (under the commentary of verse 6 of Al-Baqarah), "unless a contextual indicator establishes otherwise."[6] If we hold that the predominant concern and general discourse of the Qur'an was local, then the principle that the rulings of the Qur'an and, consequently, jurisprudence also apply to Muslims of a time and place other than the time and place of revelation requires argumentation, independent legal reasoning (ijtihad), and elaboration (especially for non-devotional and non-individual rulings).[7] Conversely, if we hold that the Qur'an's address is fundamentally directed at all the world's people, then the endeavor to gain understanding of jurisprudence (tafaqquh) in the rulings for any other time and place finds a Qur'anic basis.

• Eighth Question, the Reality of Rulings:

From an intra-religious perspective, one can accept that human actions possess a reality beyond the material world. Particularly regarding religious acts, the obligated believer hopes that the act will yield a result for them in the realm of meaning. It is also mentioned in narrations that, for example, a specific prayer will be resurrected with the person in the afterlife as a luminous companion. Now the question is whether the attainment of such realities in the realm of meaning depends on the precise performance of the correct understanding of the religious ruling, or whether the connection between the realm of meaning and religious rulings is not so linear, precise, and exclusive? Do religious rulings, with all their details, originate from realities in the realm of meaning and then reach the obligated believer in the form of legal and jurisprudential propositions, or do these rulings take shape in accordance with the obligated believer and then find a reality in the realm of meaning? To use a metaphorical expression, are religious rulings bound to the earthly world or suspended from the celestial realm?

The truth is that I myself do not see these words as fully illuminating what I have in mind! I will try to reduce the ambiguity of the speech with an example. We know that in jurisprudence it is stated that during circumambulation (tawaf), the left shoulder must be facing (parallel to) the Kaaba. The question is whether the purpose of this jurisprudential ruling is to specify the direction of rotation around the Kaaba so that all pilgrims move in one direction (counter-clockwise) and disorder and chaos are avoided? Or is this ruling more celestial than this, and the intention is a reality in the realm of meaning that will only and exclusively be attained by keeping the left shoulder towards the Kaaba? According to the first view, one can conclude that "it is not necessary for the left shoulder to be parallel to the Kaaba in all states; rather, it is sufficient to circumambulate the Kaaba in the usual and customary manner of Muslims, even if one occasionally turns their face towards the Kaaba and continues on their way, there is no problem,"[8] but according to the second view, the jurist arrives at a different ruling: "If during circumambulation one turns towards the Kaaba to kiss the corners or for another reason, or if due to the large crowd one's back or face turns towards the Kaaba, that portion is not considered part of the circumambulation."[9] My claim is not that the authors of these two fatwas had different answers to this question, but the answer to this question could entirely favor one of these two fatwas.

Let us imagine someone has a definitive answer to many of these questions. Purely a posteriori discussions about jurisprudence and its efficacy will be less likely to yield results in inviting such a person to reconsider their view, and will instead more likely reinforce their previous positions. For example, someone who considers the goal of religion (question four) to be organizing all affairs of life, upon hearing arguments that present jurisprudence as ineffective, might incidentally conclude that jurisprudence must therefore be expanded further to become effective. In comparison, someone who fundamentally does not see the goal of religion as encompassing all affairs of life, even if convinced that jurisprudence has great capabilities in various domains, will still think that jurisprudence should not have entered many of these cases in the first place.

Let me return to the writing about the pebble in the shoe. At the end of that writing, it states:

"Wouldn't it have been better if, from the very beginning when the pebble entered your shoe, you had stopped and taken it out, and not endured all this suffering?"

Inspired by this very sentence, and with a modification to it while of course maintaining courtesy, I conclude this note as follows:

Wouldn't it have been better if, from the very beginning when the parties noticed the difference in foundations, they had first directed the discussion towards those very foundations, so that during the discourse they would less often fall into repeating themselves and disputing over details?

Nevertheless, in the likes of this there is no dispute, and I repeat that this very a posteriori discussion about jurisprudence and its efficacy was also very useful and engaging. I wish continuity and success for the organizers of such "free" discussions.

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[1] This text is a rewrite and expansion of a short note titled “The Scope of Jurisprudence or the Scope of the Debate on Jurisprudence” which was published on DinOnline after the first part of the debate between Soroush and Alidoust. I removed the material specific to the first part of the debate, added some points, and made changes to the explanation of other points.

[2] Khaled Abou El Fadl writes: “As a text, the Qur’an demands a conscientious and moral reader. A reader who does not stop where the text ends, but strives to grasp the ethical trajectory the text has established and then continues along that same path.” (Translated from the English text: K. Abou El Fadl, Reasoning with God, 2017, RLPG/Galleys, p. 386).

[3] For a detailed and precise discussion on this subject, see “Religion in the Scales of Ethics,” Abolqasem Fanaei, Serat Publications.

[4] My emphasis here on separating devotional and individual rulings from rulings with social dimensions involves a level of detail beyond the scope of this writing.

[5] Ahmad Qabel writes: “In the realm of non-devotional matters, religious approaches were in harmony with the criteria considered by the rational people of the time of revelation or the time of the presence of God’s saints, and were based on ‘tolerance with human rationality in every age,’ which is a fundamental principle in the domain of legislation. ... But if (a religious solution) is not compatible with the common rationality of today’s humanity and is assessed as contrary to their approach, and lacks sufficient reasoning power to convince rational people, it must necessarily change.”, Rational Sharia, Bahman 1391, Cyberspace, p. 18.

[6] Tabatabai writes (translation): “Wherever in the Quran the expression ‘those who disbelieve’ (al-ladhīna kafarū) appears, it refers to the disbelievers of Mecca, who opposed the religious call in the early days of the Prophetic mission, unless there is an indication in the discourse that conveys otherwise, similar to the expression ‘those who believe’ (al-ladhīna āmanū), about which we will soon say: wherever it appears in the Quran absolutely and without an indication, it refers to the Muslims of Mecca, meaning the first group of Muslims, who were honored with such an address, unless an indication in the discourse proves otherwise,” Translation of Al-Mizan fi Tafsir al-Qur’an, Vol. 1, p. 83.

[7] See footnote four.

[8] Fatwa of Naser Makarem Shirazi, as cited from the website “Marjaema”

[9] Fatwa of Lotfollah Safi Golpaygani, as cited from the website “Marjaema”

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