Shī‘ī Scholars on Legal Change, Iran's Guardian Council and Expediency Discernment Council (Majma‘ Tashkhīṣ Maṣlahat Niẓām)

Abstract

This dissertation studies theories of legal change among Shī‘ī jurists and legal scholars as well as institutional legal change in post-1979 Iran. I demonstrate how Shī‘ī legal theorists formulated the theories of Variable Rules (al-mutaghayyirāt), Secondary Rulings (al-aḥkām al-thānawiyyah) and Public Welfare (maṣlaḥa) among others as vehicles of change to facilitate the adaptation of fiqh in different contexts. By examining twenty-one cases of shift in consensus (ijmā‘) and mainstream opinion (mashhūr), this study reveals that Islamic law as interpreted by these Shī‘ī jurists is transitioning into an individual rather than a communal matter. This turn shows that the subjects of the rulings (mawḍū‘āt al-aḥkām) in Islamic law are transforming to be mostly discernable by the actor (mukallaf) as personal, intention-based and subjective instead of discernable by other people and the community. Comparing the shifts in ijmā‘ and mashhūr also reveals a move to leniency (taysīr) whereby fatwas are becoming easier to practice compared to the fatwas of previous centuries. Observing these cases of change also demonstrates that in the movement from the classical to the contemporary period, there is a trend in which fatwas shift in favor of the purpose of the law vs. the letter of the law. Three factors have been particularly influential in causing these shifts. First, there is the hermeneutic influence of context on the apparent meaning of words, and second, there is the establishment of the uṣūlī methodology, which enhanced the use of intellect as an independent source in issuing fatwas among the jurists of the 18th century onwards. Third, there is the gradual decline in the significance of ijmā‘. This takes place through the legitimation of solitary reports (khabar al-wāḥid) starting in the 14th century, and the general availability of ḥadīth among contemporary scholars. Consequently, the need for issuing fatwas based on peer-reviewed legitimacy i.e., ijmā‘ was reduced. The reduced reputation of ijmā‘ unsealed the gate for basing fatwas on less accepted ḥadīths which in turn was a factor in the emergence of the new fatwas and a new mainstream. This study also shows that while legal change has always been a part of the Shīʿī legal tradition well before modernity and even within classical scholarship, the new phenomenon in the modern period is the addition of new agents of change. Prior to the 1905 constitutional revolution of Iran, muftis and judges were the only agents of change. During the constitutional revolution (1905-1911), however, the idea of having muftis involved in drafting the constitution began to evolve in Iran. The creation of the Mujtahid’s Council was the first step in the application of this theory. Seventy years later, the Mujtahid’s Council was replaced by the Guardian Council (GC) in the first constitutional draft of the 1979 revolution; this council would be the first institutional agent for changing laws based on necessity (ḍarūrah). However, the inability of the GC to approve Islamic bills compatible with the new context of Iran led to the establishment of the Expediency Discernment Council (EDC) in 1998, which would be the only constitutional agent of change capable of conditionally changing, pausing, and adapting Islamic law based on maṣlaḥa.