Ayatullah Sayyid Mujtaba Nur Mufidi in an Exclusive Interview with Fiqh-e Mo’aser: The Authority Determining Jurisprudential Subjects Is Different from the Authority Determining Instances

In conventional subjects, we cannot issue a single uniform ruling stating that in all cases the determining authority is the general public or expert custom; rather, cases differ from one another. In many instances, the criterion is indeed the custom of the general masses. Of course, the standing of custom (‘urf) itself must be precisely clarified, as well as what is fundamentally meant by custom. Sometimes in terminology and usage, these are transposed, using custom in place of the practice/conduct of rational people (sirah-ye ‘uqala’) or vice versa, whereas each must be expressed in its proper place.

Editor’s Note: It is widely famous that subjects (mawdu’at) should be relegated to the people, with the jurist merely stating the religious ruling (hukm). However, Ayatullah Sayyid Mujtaba Nur Mufidi believes this proposition is imprecise. The President of the Research Institute for Contemporary Jurisprudence maintains that one must both distinguish between subject (mawdu’) and instance (misdaq), and refrain from viewing all types of subjects identically. The Professor of Advanced Jurisprudence and Principles at the Islamic Seminary of Qom delivered a detailed preface outlining the determining authority for jurisprudential subjects, the primary foundation of which rested upon the crucial distinction between subject and instance. The full text of Fiqh-e Mo’aser‘s exclusive interview with the President of the Research Institute for Contemporary Jurisprudence follows below:

Fiqh-e Mo’aser: Who is the authority determining jurisprudential subjects (mawdu’at-e fiqhiyyah)? Does a single determining authority exist for all subjects, or not?

Ayatullah Sayyid Mujtaba Nur Mufidi: Naturally, jurisprudential subjects are not uniform. To enter the discussion, we must first explain the meaning of jurisprudential subjects: What is meant by jurisprudential subjects? If the intent is that which occupies the place of subject in jurisprudential propositions, it must be said that the subject of jurisprudential propositions has several categories.

In jurisprudential issues and propositions, sometimes the subject is a purely conventional matter (amr-e ‘urfi-ye mahdh)—meaning no intervention was made by the Lawgiver regarding that subject: neither its origin was invented by the Lawgiver, nor were its boundaries articulated by the Lawgiver.

The second category comprises subjects that are conventional, yet the Lawgiver intervened in them in the sense of specifying qualifications and boundaries for them.

The third category consists of subjects fundamentally invented by the Lawgiver, referred to as sacred invented subjects (mawdu’at-e mukhtara’ah-ye shar’iyyah). Of course, we also have a technical term known as deduced religious subjects (mawdu’at-e mustanbatah-ye shar’iyyah), which is debated as to whether deduced religious subjects stand opposite invented subjects or fall within them.

Therefore, we have several categories of subjects; naturally, one cannot rule uniformly regarding them. This is one issue that must be considered in answering this question.

The second point to consider to provide an accurate answer is that sometimes “subject” (mawdu’) is applied in a broad sense (bi al-ma’na al-a’amm) that includes the instance (misdaq) and even at times the related object (muta’allaq); thus we have subject in the broader sense and subject in the narrower sense (bi al-ma’na al-akhass). This is another point.

The third point is that we posit three functions for the jurist (faqih): the function of juristship (faqahat), the function of adjudication (qadhavat), and the function of guardianship (wilayah). Each function carries specific requirements. To define the scope of the question accurately, we must note whether the mujtahid and jurist is viewed from the dimension of juristship or from the dimension of guardianship and adjudication, as the discussion differs in each case.

The dimensions of guardianship (wilayah) and adjudication (qadhavat) are logically excluded from the scope of this question; for in these capacities, the jurist is not only the authority determining subjects, but also the authority determining instances (misdaq). An example is Mirza Shirazi’s fatwa prohibiting tobacco use, where the jurist specified a concrete instance for his ruling. In such cases, the ruling jurist (hakim) or guardian (wali), considering specific social conditions and weighing all aspects, specifies even the instance—especially if we hold that a ruling (hukm) means a specific legislative decree (insha’) in a specific event, distinct from ifta’. Adjudication is similar: a sitting judge confronting a specific event naturally determines the concrete instance.

Given the exclusion of these two dimensions from the locus of dispute, the discussion lies within this boundary: Does determination of the subject rest upon the mujtahid in his capacity as jurist, or upon others such as custom (‘urf)?

It appears that in sacred invented subjects (mawdu’at-e mukhtara’ah-ye shar’iyyah), determination unequivocally belongs to the jurist, because the jurist must refer to religious proofs to state the subject invented and originated by the Lawgiver along with its qualifications and conditions. Naturally, no one other than the jurist can perform this task.

However, regarding deduced religious subjects (mawdu’at-e mustanbatah-ye shar’iyyah), it differs from invented subjects. In deduced subjects, the Lawgiver made no invention, yet the intent behind the subject must be clarified by considering religious proofs. For instance, blood is not a sacred invention, yet whether blood absolutely is impure (najis) or only gushing blood requires consulting religious proofs. Given this explanation, determining these subjects also belongs to the jurist, as it necessitates consulting religious proofs.

The third category consists of conventional subjects that the Lawgiver did not invent, yet specified boundaries and qualifications for them—such as the concepts of travel (safar), financial capability for pilgrimage (istitā’ah), or puberty (bulugh), which are conventional subjects whereto the Lawgiver annexed qualifications and limits. This category shares similarities with the second category while maintaining distinct points.

The fourth category consists of purely conventional subjects (mawdu’at-e ‘urfi-ye mahdh). Determining such subjects unequivocally belongs to custom (‘urf). The subjects of many transactional rulings are of this nature—for example, the subject of the obligation of fulfilling contracts (wafa’ bi al-‘aqd) is conventional contract, or the subject of “Allah has permitted trade” (Ahalla Allahu al-bay’) is conventional trade (bay’-e ‘urfi).

Based on the above points, one cannot state that all subjects share a single determining authority; rather, the determining authority for each differs from the other.

Fiqh-e Mo’aser: What custom (‘urf) is intended in determining subjects? The general public custom or expert custom? In the second case, when disagreement arises among experts, who is correct?

Ayatullah Sayyid Mujtaba Nur Mufidi: In conventional subjects, we cannot issue a single uniform ruling stating that in all cases the determining authority is the general public or expert custom; rather, cases differ. In many instances, the criterion is indeed the custom of the general masses (sawat al-nas). Of course, the standing of custom (‘urf) itself must be precisely clarified, as well as what is fundamentally meant by custom. Sometimes in terminology and usage, these are transposed, using custom in place of the practice/conduct of rational people (sirah-ye ‘uqala’) or vice versa, whereas each must be expressed in its proper place.

However, in certain places, expert custom is the criterion. For example, if someone’s foundation holds that currency depreciation creates liability (dhaman), a major subject in currency depreciation is inflation. Now, who determines the rate of this inflation? Naturally, here we cannot refer to general public custom to determine the rate of inflation, because what general custom understands of inflation and price increases differs from expert principles. Hence, here we cannot state that general custom must be the criterion; rather, we must turn to expert custom.

Therefore, depending on the subjects and the proposition in which the subject is examined, the authority determining subjects varies: in certain places reference must be made to the general masses (sawat al-nas), and in other places reference must be made to experts.

But what if disagreement arises among experts? Here, the dominant majority opinion (janib-e ghalabah) should be considered and preferred. Of course, this matter requires a more detailed discussion.

Fiqh-e Mo’aser: Is assurance (itminan) resulting merely from passing acquaintance and brief study regarding a subject authoritative (hujjah), or is the assurance of someone who is an expert in that subject and actively engaged with it for a long period authoritative?

Ayatullah Sayyid Mujtaba Nur Mufidi: In a sense, this traces back to the previous question: Do we mean assurance of the general public or assurance of experts? To answer this question, we must see whether our authority for determining the subject is the general public or experts. If the authority is the general public, assurance resulting from passing acquaintance and brief study is insufficient; because regarding custom (‘urf), elements must exist for the title of custom to materialize, and through passing acquaintance, that prevalence and consistency (itirad) among people necessary for realizing the concept of custom does not emerge.

Furthermore, regarding the first part of the question, I think the discussion of personal assurance (itminan) is not the core issue, because the matter revolves around existence vs. non-existence—whether custom has materialized or not. If custom is realized, it is authoritative (hujjah), and whether this consistency stems from superficial acquaintance or permanent engagement carries no interference in the subject. However, regarding experts, this question is validly posed, and the answer is that the expert opinion serving as authority is one backed by deep, permanent engagement with the subject and thorough familiarity.

Fiqh-e Mo’aser: What is the difference between subject (mawdu’) and instance (misdaq)? Is the authority determining jurisprudential subjects different from the authority determining instances of subjects, or not?

Ayatullah Sayyid Mujtaba Nur Mufidi: Given the explanation provided in response to the first question, the answer to this question becomes relatively clear. To explain: sometimes subject (mawdu’) and instance (misdaq) are conflated, one being used in place of the other. For instance, often the intent behind the famous phrase “the jurist’s duty is not determining the subject” is that the jurist is not tasked with stating concrete instances (misdaq); however, determining the subject itself cannot fall outside the domain of the jurist’s intervention. The subject is that upon which the ruling (hukm) is predicated, whereas the instance refers to external determinations and cases of the subject in the external world.

Sometimes a subject is simple, and the jurist’s perception coincides with custom; however, in subjects where a divergent perception exists between the jurist and custom, one must act according to the jurist’s view. Regarding instances, however, the determining authority is custom.

This matter is not unanimous: for example, the author of Jawahir states that the jurist’s duty is strictly stating the fatwa and jurisprudential ruling, and anything outside this carries no relation to the jurist. On the other hand, someone like Sheikh Ansari, when explaining confined doubt (shubhah mahsurah), states that we cannot leave this to custom, because leaving it to custom yields no benefit other than increasing perplexity; hence, he himself as a jurist undertakes defining the criterion for confined vs. unconfined doubt.

In any case, our point is that the authority determining a jurisprudential subject differs from the authority determining its instances. Determining instances rests upon emulators (muqallidin) and the people themselves, but determining subjects is not so, possessing the details outlined above.