Islamic Law, Epistemology and Modernity

Legal Philosophy in Contemporary Iran

Ashk Dahlen

• Publisher: Routledge
• Year: 2004
• Topic: Social Sciences
• eBook ISBN:
  9781135943547
• Subtopic: Social Science Research & Methodology
• Index: Social Sciences

This study analyses the major intellectual positions in the philosophical debate on Islamic law that is occurring in contemporary Iran. As the characteristic features of traditional epistemic considerations have a direct bearing on the modern development of Islamic legal thought, the contemporary positions are initially set against the established normative repertory of Islamic tradition. It is within this broad examination of a living legacy of interpretation that the context for the concretizations of traditional as well as modern Islamic learning, are enclosed.

CHAPTER I

Introduction

A. The Purpose of the study

Like all great religions, Islam has experienced the impact of the manifold potencies of modern life and responded to this challenge in diverse forms and manners. In the sense that the exploratory elaboration of law for centuries has been the dominant mode of self-expression in Islam, one of the key themes of contemporary Islamic thought is the search for a legal identity. The aim of the present thesis is to analyse the major intellectual positions in the philosophical debate on the meaning of sharīʿat (the revealed law of Islam) that is occuring in contemporary Iran, and which involves subjects such as epistemology, methodology and hermeneutics. My study consists of two parts, framed by an Introduction and Conclusions. The first part (chapters 2, 3, 4) is made up of a purely descriptive account of the general aspects of Shi’i law and its methodological and hermeneutical sources and principles.¹ Since the characteristic features of the formative period of Islamic law have a direct bearing on the modern development of legal thought, the contemporary positions have to be set against the established background and normative repertory of Islamic tradition. It is within this broad examination of a living legacy of interpretation, par excellence the genres of ʿilm al-tafsīr (Qur’anic exegesis) and uṣūl al-fiqh, that the theological and juristic context for the concretisations of traditional as well as modern Islamic learning are enclosed.

The second part of my study (chapters 5, 6, 7) involves an explorative and comprehensive investigation of contemporary Islamic positions where in the main the legal-theological discourse of ʿAbd al-Karīm Surūsh is highlighted. This part is structured according to the main themes of the thesis and necessitates a semantic analysis of the key legal terms, featured in the authors’ works, which in the Islamic context always have a religious meaning. Hence, so as to account for language variations and change, the tenacity of the established historical tradition as well as synchronic ‘innovative’ reinterpretations and explanation will be taken into consideration. From a theoretical point of view, the thesis is thus a study of the history of ideas and can be seen as an attempt to present some diverse ways of interpreting religion, located in the arena between the revealed text and the reading subject, within the contemporary world.

The modern debate on the nature, function and aim of Islamic law came to prominence within Shi’i Islam at the beginning of the constitutional revolution, in the early twentieth century, which represented the first direct encounter between traditional Islam and the modern West in Iran. Under the ideological challenge of secular forces, Iranian theologians and jurists were then compelled to explain the relation between the Islamic religion and the driving principles of European modernism. During the twentieth century, certain more or less genuine undertakings attempted to develop an Islamic modernism as opposed to rejecting the demand for radical change. After the 1979 revolution, the problem of the reform and renewal of the traditional Islamic law has again acquired great urgency, as the new theocratic order confronts a political reality that is not addressed by definite formulations in the traditional fiqh corpus. Since there is no clear or hard position under sharīʿat in many areas of law, such as substantive laws, the Shi’i fuqahā (jurists) are divided among themselves as to the best legal solutions to many problems facing contemporary society. This situation and the ensuing controversy have forced traditional as well as modern educated scholars into two different intellectual camps: one adheres to the methodology of fiqh-i sunnatī (traditional jurisprudence), also called fiqh-i jawāhirī while the other advocates a new and more radical approach, which while being far from uniform, is generally designated as fiqh-i pūyā (dynamic jurisprudence) or fiqh-i maṣlaḥatī (expedient jurisprudence).

As some observers have noticed, the intellectual debates and paradoxes that are taking place in contemporary Iran defy any monolithic characterisation of Shi’i Islam. Partly due to the attempts to apply traditional Islamic jurisprudence in the political sphere of the modern state, Islam, being an a priori source of religious normativity, is increasingly ‘crystallised’ into a contested myriad or body of competing intellectual discourses, where the access to interpretation of the revealed legal texts has become more plural and the Shi’i authority of marjāʿ al-taqlīd (source of emulation) no longer possesses a natural monopoly in spiritual matters. In contemporary Iran, a number of lay Muslim intellectuals participate in developing various discourses on religious epistemology and hermeneutics side by side with the ʿulamā and the key figure in the criticism against traditional jurisprudence is a lay intellectual: ʿAbd al-Karīm Surūsh. He published his first philosophical articles on legal epistemology and hermeneutics in 1988, in which he connects to Kantian notions of second-order cognitive theory. Surūsh’s thought has developed partly as a refutation of Marxist concepts of science and society and partly as a critique of the ‘ideologicalised’ interpretation of religion as commonly presented by Islamic modernists.

Due to the relationship between global modernity and the religion of Islam, the question of sharīʿat has indisputably come to occupy a wider perspective than its traditional formulations and this raises the question as to whether modernity is still categorically conceptualised as an external phenomenon among Iranian religious intellectuals, or if there is instead an effort on their part to develop indigenous forms and expressions of modernity. Whereas the early Islamic modernists discussed the adaptability of Islam to modernity, and from the middle of the twentieth century made attempts to ‘islamise’ modernity, I’ll later argue that a new formation of Islamic intellectuals emerged after the 1979 revolution; Islamic postmodernism, which problematises modernity, but not in a conscious attempt to islamise it. In contemporary Iran, Islamic intellectuals are concerned with issues such as the existence of Muslim varieties of modernity, possible beneficial aspects of the postmodernist review of enlightenment modernism, whether modernity at all may be transcended, etc. In this respect, the Iranian intellectual panorama has undoubtedly witnessed a prospering not restricted to traditional Islamic theology, jurisprudence, mysticism, and art, but which also includes modern political philosophy, hermeneutics, gender studies and philosophy of law. As Mehrzad Boroujerdi (1996:157) elucidates, “Far from engaging in esoteric and trivial polemics, the discussions now taking place in Iran are philosophically sophisticated, intellectually sound, socially relevant and politically modern”.

Hence, the objective of the present thesis is precisely to examine if it is possible or even correct to speak of internal Shi’i expressions of modernity as indicated by my very use of terms such as ‘Islamic modernism’ and ‘Islamic postmodernism’. I shall indicate the extent to which this is so but also the very serious limit to which such an expectation must necessarily be confined. In the realm of epistemology, the growth of epistemological ‘subjectivism’ is considered to be the underlying ontological foundation of modernity, which has prioritised a moment of self-awareness in the adjunction of knowledge. The present thesis considers the turning away from things, the object of thinking, to the subject, having thoughts, to be the mark of modern Western philosophy (Kant is the one credited with articulating the problem of subjectivity as a problem in itself), which evolved originally because of the residue of theoretical doubt in cases which other religions and cultures, Islam included, were inclined to call certain knowledge. In contrast to Descartes, who interpreted truth as certainty, premodern philosophers in different religions were, for instance, inclined to interpret truth in terms of beauty and goodness (Judovitz 1988).²

As far as the primary cognitive and interpretative questions for contemporary Islamic intellectuals are essentially similar to those of the Western hermeneutical tradition, the concern of the present thesis is to what extent primarily ʿAbd al-Karīm Surūsh’s understanding of Islamic epistemology and hermeneutics as well as conflicting interpretations, is engendered by the cognitive structures of modernity. I presuppose that a connection only may be assumed when explicit and clearly identical Western themes and terminology is present in the Persian texts. In this respect, it can further be questioned whether the hermeneutical approach of Islamic postmodernism should instead be considered as an attempt to ‘postmodernise’ Islam in order to disintegrate the Islamic tradition.

Besides Islamic postmodernism, the present thesis, focusing on paradigms rather than on actors, considers two different philosophical positions with regard to the contemporary theoretical discussion on sharīʿat; Islamic traditionalism and Islamic modernism, and their main representatives. These positions, which are delineated in the first chapter of the second part of my study in order to determine the central patterns and elements in the respective positions, are subsequently and consistently highlighted in comparison to Surūsh in the concluding analysis in order to substantiate my thesis that Surūsh’s position constitutes a paradigm-shift in Shi’i speculation on divine law. Among the pivotal figures who are considered in this respect are primarily ʿAbdullāh Jawādī-Āmulī and Muḥammad Mujtahid-Shabistarī, but also included are other individuals who belong to the Islamic intellectual elite of Iran, and whose ideas exercise a deep influence on the Persian-speaking intelligentsia. These positions are in many ways intertwined, and often the arguments of one participant are articulated in response to the writings or views of another position. My intention is to highlight the variety of stances found in the debate, and hence establish some form of taxonomy and typology, as it from this reasoning it is clear why no position remains fixed but is rather constantly redefined in new contexts.

My choice of individual thinkers is directed by the fact that their ideas are widespread among intellectuals in Iran and have an ideological relevance as well as the fact that they, in consonance with my hypothesis, represent different positions. The focus on Surūsh is motivated by the fact that his post-1988 writings on the nature of Islamic law, legal epistemology and hermeneutics accommodate fiqh to modernity to an extent unsurpassed by other Shi’i positions, at least in the Iranian context.³ In this respect, I shall argue that Islamic postmodernism has paradigmatic relevance and reflects a thoroughly transitional phenomenon within contemporary Shi’i Islam. My choice of the specific texts from each of the authors is further based on the common problematique of the thesis. In the concluding part of the thesis, the characteristics of the various positions are analysed with specific reference to the phenomenon of modernity, in order to arrive at intrinsic similarities and differences in the positions. As far as the positions are participants in the modern age and that the choice of Islamic traditionalists to reject modernity is also something ‘modern’ in terms of being a response to the latter, my attempt is to define some of the contents of a supposed Islamic modernity.

B. Theory and methodology

No method is cognitively and morally neutral and, hence, ideologically innocent but to not discuss the methodology of one’s choosing may leave the logic of the adopted procedure to chance. Methods are inevitably normative, and they will not on their own explain, for example, the nature or origin of religion. My intent is not so much to theorise about religion as to understand certain religious positions. For the determination of the religious and philosophical positions of the authors, I follow a philological and analytical method and base it on a textual analysis of Persian sources. By adopting a parochially Western point of departure, the thesis makes use of a methodological scheme that is the product of centuries of European hermeneutical thinking. This specific historical tradition has developed out of certain religious and philosophical conditions characteristic of later Western Christianity. Due to its significant relevance for the contemporary philosophical discussion on Shi’i law, I find the hermeneutical method as such useful, particularly in bridging existing cultural and intellectual gaps in the precluding of Orientalism, which constructs Islam as the ultimate other.

The study of religious tradition was until relatively recently exclusively the work of the bearers of that tradition. Only with the emergence of the modern West has the situation has been altered radically by the perspective of Orientalism. Scholarly attempts to explain religious expressions in alien, cultural traditions generally pale in comparison to the spiritual reality of what appears. In responding to the presence of the other, the academician must come forward himself. We are no longer attuned to the traditional forms of expressions, but immersed in a world that grants very little reality to the religious dimensions of existence. Thus, the modern sphere clearly challenges us with the task of renewed understanding. This amounts to saying that the hermeneutic dilemma of recovering the meaning of a text has surfaced in an exemplary way in theology and religious thought.⁴ I further believe that the study of traditional as well as contemporary legal-theological trends in Islam is not simply necessary from a comparative cross-cultural point of view, or from the view of understanding the ‘Islamic intellect’, but that it is most urgently needed for increasing creativity and comprehensiveness in the philosophic endeavours of contemporary law and philosophy in general.

As the aim of the thesis is to examine the logical connections that exist between different philosophical positions among Shi’i intellectuals in Iran and their relationship to the Islamic revealed sources and the legal tradition in general, I shall elucidate the theoretical content and the logical structures of these texts. The problem of texts cannot be solved without considering the problem of interpretation, which is basically a hermeneutic art that tries to clarify the concept of verstehen, that is, deciphering the meaning of texts.⁵ Whereas hermeneutics in earlier times was comprehended as the art of theological-exegetical understanding, after Hans-Georg Gadamer, the focus is on the hermeneutic phenomenon in ontological terms (hermeneutics of being) while still being concerned a priori with language. Gadamer argues that since understanding is not automatic, whenever it occurs it involves interpretation. Although I do not share Gadamer’s notion that modern hermeneutics is concerned with gaining universal truth and insight in human experience, since it is not teleological, it may be applied to the examination and constructing of Persian texts that I am proposing here.

Hermeneutics, as a theory of interpretation or ‘art of reading’ (as distinct from practical philosophy or speculative ontology) and structural analysis may have a complementary function. Even if there is no meeting point between the two, there may be a superimposition of levels. Whereas the depth of a text belongs to hermeneutics, the surface belongs to structural analysis. Hermeneutics addresses itself to the intention in the pattern that the structure displays and works beyond the horizon of structural linguistics. This is very similar to what Paul Ricoeur, the best-known French representative of phenomenological hermeneutics, means by appropriation, namely second-order dialectic of structural explanation and her...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• List of transliteration
• CHAPTER I: Introduction
• CHAPTER II: The Nature of Islamic law
• CHAPTER III: Categories of traditional Islamic epistemology
• CHAPTER IV: Shi’i legal dogmatics
• CHAPTER V: Islamic traditionalism and Islamic modernism
• CHAPTER VI: Surūsh on the nature of Islamic law
• CHAPTER VII: Surūsh’s theory of the contraction and expansion of religious knowledge
• Conclusions
• Bibliography
• Index
• Tables: