The Static and Dynamic Jurisprudence: the Shi’i Jurisprudence in the Age of Velayat-e Faqih

Abstract

The theory of Velayat-e Faqih along with its practical model finds its way into the academic discussions: detailed and technical debates on its roots in the religious sources and jurisprudential principles, and its scope and limit of power are in progress among the proponents and opponents both. There were two extreme views: (i) those of the traditionalists, who do not care about today’s conditions, offing changes and developments in political, social, economic and cultural matters; (ii) those in their idea of a secular and liberal Islam believe the Islamic law is not enforceable in the present circumstances. So, basically treat religion as an individual matter. Between these two extreme views, the theory of Velayat-e Faqih has chosen a middle approach. All through his academic and political life, Imam Khomeini continued to challenge these two groups. The discussion above on both, the Traditional and Moderate Schools of Jurisprudence, is with reference to general classification: in practice, there is often an overlap. It means that a non-political and traditional jurist may maintain the same views on some subjects as the moderates do have, or the vice versa. Another important issue is the specialization of Fiqh and the jurists. Further, the subject has been under debate during the past decades, and scholars discussed and emphasized their view points. They argued that information and knowledge, available to man in the past, was limited; and that a knowledgeable faqih may command knowledge in different specialties and could, therefore, issue fatwa on many issues. But now the number of scientific subjects have increased and their range happened to be much wider and deeper. Therefore, it is almost impossible for a jurist to issue fatwa on every subject (Motahari 1375/1996, l06). Based on this view, the Guardian Council of the Constitution that supervises the laws in the Iranian system should have jurist/scholars, who are experts in different fields (Rafsanjani 2012a). In this current phase of globalization, the current and future generations of jurist scholars should discuss the various treaties, conventions and protocols on many and varied issues, and security etc. Situations are changing fast, demanding effective responses from individuals, organizations, countries world organizations at the theoretical and practical levels as well. Thus, it is now that the responsibilities of the Vali-ye Faqih, the jurists and leaders in all fields have increased many folds.