Ayatollah Sayyid Mojtaba Nourmofidi in an Exclusive Interview with Contemporary Jurisprudence Magazine: Contemporary Branches of Jurisprudence Have New Issues, but No Newly Emergent Evidence!
Ayatollah Sayyid Mojtaba Nourmofidi: I do not agree with the notion of newly emergent evidence. This term suffers from ambiguity and deficiency. The examples you mentioned, such as established practices and objectives, ultimately return to the three or four traditional sources of evidence. The discussion concerning the authority of newly developed practices is the same discussion that has long existed regarding established practice. In a sense, disagreement over the scope of evidence has existed since the past. I therefore do not agree with the expression “newly emergent evidence.” The purposes or objectives of the Sharia, or the spirit of the Sharia and the religious community, also return to the Qur’an and the Sunnah. The judgment of reason has likewise existed since the past.
Introduction: Contemporary jurisprudence undoubtedly has new issues, but the question is whether the same evidence employed in traditional Jawahiri jurisprudence is sufficient to resolve them, or whether new forms of evidence must be added to the inferential apparatus of Shi‘a jurisprudence, or greater use must be made of certain existing forms of evidence. Some maintain that certain presuppositions held by jurists prevent them from relying on evidence such as newly developed rational practices, the judgment of reason, and the objectives of the Sharia. Ayatollah Sayyid Mojtaba Nourmofidi, however, fundamentally denies the existence of new forms of evidence in contemporary branches of jurisprudence. He also does not accept that the jurists’ failure to make maximum use of the aforementioned evidence arises from inappropriate presuppositions. The Head of the Contemporary Jurisprudence Research Institute believes that the same evidence generally used by jurists to resolve jurisprudential issues also possesses considerable capacity to resolve newly arising jurisprudential issues. The full text of the interview with this teacher of advanced jurisprudence and principles of jurisprudence at the Qom Seminary follows:
Why do most jurists make less use in their jurisprudential arguments of supposedly newly emergent evidence such as rational practice, findings from other sciences, the judgment of reason, and the objectives of the Sharia?
Professor Nourmofidi: I do not agree with the notion of newly emergent evidence. This term suffers from ambiguity and deficiency. The examples you mentioned, such as established practices and objectives, ultimately return to the three or four traditional sources of evidence. The discussion concerning the authority of newly developed practices is the same discussion that has long existed regarding established practice. In a sense, disagreement over the scope of evidence has existed since the past. I therefore do not agree with the expression “newly emergent evidence.” The purposes or objectives of the Sharia, or the spirit of the Sharia and the religious community, also return to the Qur’an and the Sunnah. The judgment of reason has likewise existed since the past.
Therefore, the term “newly emergent evidence” is incorrect. Yes, we have newly arising issues, but the evidence is the same evidence that existed before. Some statements even introduce the ruler and Islamic government as a new source of jurisprudence, whereas they do not stand alongside these sources.
When we examine how jurists approach issues such as the metaverse, legal persons, and notional transactions such as financing or cryptocurrencies, we see that instead of addressing evidence such as rational practices, the objectives of the Sharia, or evidence of this kind, they turn to textual evidence such as “God has permitted trade” and perhaps refer to established practice only at the very end.
Professor Nourmofidi: There are two separate discussions. Paying greater attention to certain forms of evidence is one matter, while creating new evidence is another. These two must not be confused. I accept that the principal efforts of jurists are directed toward generalities and textual evidence. It must be noted, however, that recourse to unrestricted and general statements occurs in two ways: sometimes it is accompanied by rigidity, while at other times appropriate and proper conclusions are drawn from them.
For example, the late Imam Khomeini relied on unrestricted and general statements, such as the inclusive scope of “God has permitted trade” and “Fulfill your contracts,” and drew conclusions from them. Some who do not do so fail to establish that the unrestricted statement was made in a context intended to explain the ruling. Thus, reliance on unrestricted and general statements itself offers considerable capacity for resolving newly arising issues. Even considerations of expediency, secondary titles, and such methods as identifying the effective criterion and disregarding particularity are, in many cases, among the functions of textual evidence.
There is also disagreement concerning the breadth of the authority of reason and rational practice. However, figures such as the author of Jawahir al-Kalam rely on rational practices in numerous instances. Therefore, the allegation that jurists make little use of rational practices is entirely dispelled by even a cursory examination of Jawahir al-Kalam as a representative work of the seminary’s traditional literature.
Of course, the final result of the inference may not have been of this kind and may have been accompanied by certain precautions. Nevertheless, this dynamism and precise inferential system can be observed within the process of inference, and rulings have been inferred through this evidence.
Can the jurists’ extensive use of scriptural texts, as opposed to nonverbal evidence, be attributed to the lingering influence of Akhbari thought and rigidity regarding the texts? What should be done to resolve this challenge?
Professor Nourmofidi: No. The emergence and expansion of the Akhbaris naturally affected jurisprudence, legal rulings, and other related disciplines, and this cannot be denied. It is not correct, however, to connect this issue to that phenomenon. We must look at reality. These residual influences exist and should be recognized to the extent that they do, but if they exist, their role is minimal. For example, Qur’anic verses are used less frequently in jurisprudential arguments, which may result from the lingering influence of this thought. My point is that various factors account for this limited reliance on Qur’anic verses. One of them is the existence of a rich source known as the narrations, which reduces the motivation to turn to the Qur’an. Furthermore, we derive many rules from narrations and scriptural texts that are highly instructive in the process of inferring religious rulings.
The use of reason is also present in the jurists’ works. Its limited appearance, however, may result from their recognition of only the definitive judgments of reason as authoritative. Apparently, apart from the issue of intrinsic goodness and evil, there is no definitive instance of the judgment of reason.
Therefore, the reason certain forms of evidence have not been consulted is their inherent limitations. On the other hand, the richness of the scriptural texts has produced this result. The fear among some jurists of falling into rationalism and ultimately causing the erosion and destruction of religion is also worthy of consideration. Another issue is that our jurisprudence has been individualistic and distant from governance; hence, there have been fewer requirements necessitating recourse to other forms of evidence. In sum, Akhbari thought has played a limited role in rigidity regarding the texts, but it is not the complete cause.
The jurist’s psychological states, fears, and lack of courage have produced consequences, including the fear of religion’s erosion or of becoming rationalistic. Are these not residual influences of Akhbari thought?
Professor Nourmofidi: This does exist, but it is unrelated to Akhbari thought. It arises from the jurist’s sense of sanctity and piety, which prevents him from issuing a fatwa contrary to God’s ruling or considering an issue according to his own inclinations. This leads to caution. In any event, the general public acts upon this fatwa, and it cannot be treated lightly. Some, of course, exercise so much caution that if these precautions were to be implemented, the social order would be disrupted. This point must also be considered. Imam Khomeini also addressed this point in his letter to Mr. Qadiri.
The influence of Akhbari thought on jurisprudence and even the principles of jurisprudence is slightly more than minimal. When we examine the eight objectives of Kifayah, we see that most of them concern discussions of language and are directed toward the narrations. In discussions of authoritative proofs and indicants, only a small portion is devoted to reason and established practice, while the greater part concerns the authority of solitary reports. In the practical principles as well, the focus is on the textual evidence expressing these principles. Most discussions of reconciliation and preference also concern conflicts among textual forms of evidence. Can the limited scope of discussions concerning nonverbal evidence in the discipline of principles of jurisprudence not be attributed to Akhbari thought?
Professor Nourmofidi: In my view, the cause and reason are unimportant. What matters is the harm caused by the existing situation and what must be done about it. What effect does this discussion have?
When you view the influence of Akhbari thought as minimal, you portray the matter in a way suggesting that it no longer needs to be resolved, and you will therefore make no effort to resolve it.
Professor Nourmofidi: If we accept that it exists to some extent—whether it arises from the residual influence of that thought, personal precautions, sanctity and piety, or other worldviews and perspectives—then in any event, it must be addressed. Insisting upon identifying its origin, however, does not seem useful.
You are not clarifying the matter. Does this problem ultimately exist or not? If it does, what should be done? Please clarify this.
Professor Nourmofidi: Your questions are partial and based on presuppositions, whereas some of these presuppositions, such as the existence of newly emergent evidence in the apparatus of jurisprudence, are incorrect. In general, however, our inferential apparatus must be reviewed, and certain aspects of it must be strengthened. Suppose we encounter issues in the sphere of acts of worship; we must then turn to the scriptural texts. Ultimately, disregarding particularity or identifying the effective criterion can also be added. In the sphere of transactions, too, we must rely on scriptural texts, whether narrational or Qur’anic. Consider how extensively the late Shaykh introduces narrational discussions and texts in al-Makasib. Of course, Qur’anic verses must be placed at the center of the inferential process. Our jurists have also addressed the verses concerning legal rulings. Yes, we must strengthen arguments based on Qur’anic verses. However, it is incorrect to suggest that jurists have confined themselves exclusively to the scriptural texts; rather, they have also considered other forms of evidence.
Can one reason for the jurists’ limited use of findings from other sciences in jurisprudential inference be their belief in the loftiness and superiority of jurisprudence over other disciplines?
Professor Nourmofidi: The nobility of a discipline derives either from its subject or its objective. Disciplines concerned with eternal objectives naturally possess a certain nobility over other disciplines. If their subject is the human being, if they are directed toward human reality and fundamental human needs, and if they claim to accompany human beings and show them how to reach the highest destination, they certainly possess nobility. I am speaking in general terms and do not intend to establish the superiority of one discipline over another. Given that the divine sciences concern human perfection and address dimensions of the human being that are fundamental, they naturally possess nobility. This applies to all divine sciences.
Certain other sciences are also useful to jurisprudence. For example, the late Sayyid Muhammad Sadr identifies numerous disciplines, such as chemistry and physics, as preliminary sciences of ijtihad. Sciences such as medicine are also instructive in identifying the subjects of jurisprudential rulings, particularly in medical jurisprudence.
Regarding disciplines other than the natural sciences—those concerning human insight and behavior—it must be discussed how these human sciences can relate to jurisprudence. This is no longer a matter of identifying the subject and requires further work. Discovering a subject differs from identifying it. Disciplines such as economics, sociology, and politics in their modern forms generate numerous newly arising subjects that must be examined in jurisprudence and whose status under the Sharia must be clarified. The philosophy of science, for example, is a modern discipline that may have been addressed in jurisprudence and principles of jurisprudence, though not under this title. Methodology and research methods are likewise useful in all disciplines, including jurisprudence. These are disciplines that are used in jurisprudence.