Contextualism in Ayatollāh Borūjerdī’s Jurisprudential Methodology

Abstract

This article sheds light on the fiqhī methodology of Ayatollāh S. Hosain Tabātabāī Borūjerdī (1875-1961). According to the author, one of the most prominent features of his methodology is a broad contextualism. Bringing evidence from Ayatollāh Borūjerdī’s major writings, the article explains different aspects and dimensions of his contextualist approach. It explains how he has moved away from a pure textualist approach while keeping his fidelity to the text at the same time. The article also shows how this idea has been reflected in the works of Ayatollāh Borūjerdī’s followers. It suggests the ways in which this methodological approach can be developed and applied across all Islamic textual sources, including the narrations of the Prophet and the Qur’ān.

Introduction

Although there are similarities in the jurisprudential methodologies of Shiʿite seminarians, there are also some major differences that may be found with regard to important aspects. Amongst these is the differing level of importance applied to the text in jurisprudential discussions. This has led to the existence of a variety of approaches which differ on the question as to whether priority should be given to the text, or to rationality (aql) as the other source for jurisprudential reasoning. In practice, however, in almost all jurisprudential schools the text takes priority over all other sources.

Another reason for the emergence of different approaches of jurisprudence is the manner in which the text is treated. Texts are a very important source of Islamic jurisprudence. It is generally believed that the main task of a legal scholar (mojtahīd) is to infer the divine legislator’s intentions from the texts available. A Muslim jurist is supposed simply to reveal the divine lawmaker’s intention. Therefore, the most prominent feature of hermeneutics in Islamic seminaries is intentionalism. In order to infer the divine legislator’s intention, the main methodology concentrates predominantly on some kind of textual and literal approach. At the same time, there is another tendency which considers the different contexts in which the texts have emerged. These contrasting methods can result in jurisprudential disagreements, scholarly disputes, and even in the emergence of different schools of jurisprudence.

This article is concerned with jurisprudential methodology of Ayatollāh S. Hosain Tabātabāī Borūjerdī (henceforth Borūjerdī), a paradigmatic representative of the modern Seminary of Qom and the sole marjaʿ-e taqlīd of the Shiʿite world for fifteen years. ¹ Through studying his major jurisprudential writings, I explain how a specific approach to the text, which I name contextualism, became a dominant feature of his methodology in the Qom Seminary, distinguishing it from the Najaf School of jurisprudence.

To this end, I will first explain contextualism and related concepts as they are understood here. Secondly, I explain the traces of contextualism in Islamic hermeneutics. Thirdly, I mention the origins and different dimensions of Borūjerdī's methodology. And finally, I elaborate on a continuation of this methodology and its capacity for further and novel development.

Textualism and contextualism

There is no single understanding and definition of textualism. Jurists and scholars talk about historical developments of textualism and its modern and classic versions. According to Cross (2009, 25), “the classical textualist approach to statutory interpretation takes the words of the text and attempts to discern their plain meaning.” The main task of a textualist interpreter is to discern a reasonable and objective measure of the meaning of statutory language. There is no need to attempt to discern any underlying intent of the adopting legislature. In Western linguistics , this distinction has been titled as intentional versus extensional meaning. While the former concentrates on the meaning of the speaker, the focus of the latter is on the meaning of the words themselves. In a textual approach, the interpretation is "guided by the text and not by intentions or ideals external to it, and by the original meaning of the text, not by its evolving meaning over time" (Scalia 1997, viii).

Within textualism, the plain meaning of the word should be considered and then be construed in the light of the entire document. ² In this approach, the main concern of the interpreter is to infer the author’s likely intention from the text itself. For a textualist, an interpreter’s task is not to determine what seems to be good decision at the time of reading, but to ascertain the meaning of the text (Gerhard 1994, 30).

In a textual approach, the extended and broader meaning of a word and/or a phrase, based on observation of the whole text, might be considered. As linguists say:

The term textual meaning is sometimes used in semantics as a part of a classification of types of meaning, referring to those factors affecting the interpretation of a sentence which derive from the rest of the text in which the sentence occurs—as when, at a particular point in a play or novel, a sentence or word appears whose significance can only be appreciated in the light of what has gone before. (Crystal 2008, 481-82)

In the legal field, some textual approaches might also be closer to the contextual approach than others. Some of them do not deny all types of reliance upon the surrounding evidence, if any. Justice Black, for example, who is known as a textualist has emphasized that the meaning and promise of a constitution cannot be understood separately from the unique historical circumstances in which the constitution was formed (Gerhard 1994, 30). Some defenders of textualism in legal theory argue that, without fidelity to textualism, there would be a grave danger to written laws such as the constitutional law. According to some textualists, when the text is ambiguous, resort to extrinsic evidence of meaning is permitted and may sometimes even be required. The purpose of a statute and its legislative history may shed light on the meaning of ambiguous language by revealing the context in which it was enacted (Somin 2010, 235).

The mainstream position in Islamic legal hermeneutics advocates textualism in this sense. Most jurists hold that the text is carrying an objective and concrete sense of the author’s intention and the main task of a jurist is to uncover this intention. Therefore, the dominant approach in almost all Islamic hermeneutical studies is a type of intentionalism, namely a theory that presupposes that a literary work should be judged in terms of the author’s intentions.

From the beginning of Islamic legal hermeneutics Muslim scholars gave a great value to the intention behind the text. Sayyed Mortazā (965-1044), for instance, distinguishes between kalām (statement) and khītāb (explanation) and insists that in Islamic legal theory (Usūl al-fiqh) we should refer only to khītāb because it is something uttered intentionally. If there is no intention beyond a statement, as in the utterance of one who is asleep, it is not worth discussing since no command or prohibition is imaginable in such a case (Moōsavī Alam al-Hodā 1997, 1:1, 8; al-Tōusī 1997, 1:8). Explaining the words of Avicenna regarding the nature of denotation, Nasīr al-Dīn al-Tōusī insists that, when there is no particular intention behind the word, there is no denotation at all (Avicenna 1982, 1:31-3).

Similarly, if a change occurs in the meaning of a word, the previous intended sense at the time of its utterance or writing must be taken into account (al-Tōusī 1997, 1:8). The denotation (dīlāla) according to the majority is limited to the sense intended to be delivered to the addressees. The concepts that may come to the mind of the reader of a text or the addressee of an utterance are not counted among the implications of text until it is meant by the author (Mozaffar 1996, 1:20). Moḥammad-Kāẓem Ḵorāsānī (1830-1910), a very distinguished professor of Borūjerdī, insists that the mere telepathy between a word/phrase and a primary concept is not an implication as long as the concept is not really intended (Khorāsānī 1999, 32).

In western linguistics there are a lot of debates about the relationship between classical textualism and intentionalism (Siegel 2009, 117). In Islamic hermeneutics, in contrast, almost all who concentrate on the text insist on the significance of the author’s intention. Regardless of some approaches in exegeses and mystical trends, almost all juristic approaches are in favor of a textual approach which requires the interpreter to seek the author’s intention through the text. For understanding the Holy Legislator’s intention, a jurist should try to infer it from the available texts, and this is almost all a jurist has to do when interpreting the text. It is not common to go beyond the text.

Seminarians are, however, extremely far removed from another version of textualism, known as strong textualism in modern linguistics. According to a theory of textuality defended by Jacques Derrida and Michel Foucault, and termed “strong textualism” by Richard Rorty, there is nothing outside of text. Derrida writes: “I found it necessary to recast the concept of text by generalizing it almost without limit… that’s why there is nothing beyond the text” (Cornel 1995, 57). Derrida claims that the meaning of a text cannot be anchored in authorial intent or context; he believes that the meaning of texts proliferates endlessly (58). For strong textualists, context is not a fixed background against which texts are read. Foreground and background are each textualized and the connection between them must be read inter-textually (57). Strong textualism also claims the death of the author, an idea which seems to be too extreme for many, including historians who still may have interest in discerning an author’s intent (74).

Textualism in this sense is rarely accepted in most schools of Islamic hermeneutical studies. The only approach in Islamic hermeneutics which might sympathize with this kind of textualism is the school of ta’wīl; this is an esoteric method of interpretation mainly implemented in the exegesis of the Qur’an created by such scholars as Ibn Arabī (1165-1240) and then followed by some other scholars of mysticism (ʿIrfan).

In contextualism, on the contrary, the role of the situation in which a text is shaped is often highlighted. These “situations” are typically called contexts of utterance, or just contexts, while expressions whose reference depends on the context are called indexical or context-dependent expressions (Crystal 2008, 118). Different versions of contextualism are unequal in their emphasis on the relevancy of the context. While radical contextualism claims that every expression of a natural language is context-sensitive (Speaks 2021), moderate contextualists claim that only some expressions of natural language are context-sensitive (Cappelen 2005, 5).

Contextualism also has its own specific meaning in the works of the Cultural Studies Movement and scholars like Richard Rorty who defend a broad and dynamic version of contextualism (Cornel 1995, 66-67).

In summary, by contextualism we mean an approach in which the greatest value is given to the inference of the author’s intention through the text, but with full consideration given to all possible external facts and surrounding circumstances within which the text emerged.

The traces of contextualism in Islamic hermeneutics

Contextualism in the aforementioned sense has been more or less on the minds of Muslim scholars from the beginning of their interpretive efforts. Scholars of Qur’ānic studies wrote on Asbāb al-Nozūl or the causes of revelations (See, al-Wāhedī, 2008). They believed that the context in which every single Qur’ānic verse was revealed plays a role in understanding the core of the divine message. The causes of revelations are not reasons to confine the content of the related Qur’ānic verses to these specific events but essentially they help in reaching a better understanding of the content of the verse through providing some information regarding the conditions of revelation.

In many hermeneutical discussions in Usūl al-fiqh, one can see the signs of a contextual approach. For example, there is a debate between Muslim scholars on those Qur’ānic verses addressing the present Muslim community in a conversational form such as, “O, Mankind!” and “O, you who believe!” One concern in this regard is that such Qur’ānic verses are in the format of a verbal conversation and non-existent people cannot be as a part of a live conversation. Another point is that there have usually been several situational sources of evidence surrounding verses of this type. These sources of evidence were evident to the persons directly addressed by the Qur’ān but not for subsequent generations who were not present in those live conversations. This may make the intended meaning of the text ambiguous for later generations. Hassan ibn Zain al-Dīn (1552-1602-3) claims that all Shiʿite scholars and most Sunnis believe that the content of Qur’ānic verses of this type is limited to those who were the immediate addressees of the verses. The coming generation, according to this view, can share this with the immediate addressees on the basis of other evidence or maxims as, for example, the principle of commonality of all Muslims in their obligations and responsibilities (asālat al-eshterāk) or the consensus of scholars (Ibin Zain al-Dīn 1983, 123). This means that the generations subsequent to the period of revelation should rely upon what the first Muslims understood as the meaning of Qur’ānic verses and they themselves cannot simply rely upon the currently plain meaning of the text (see: Qomī 2009, 517; Kāshīf al-Ghītā 2007, 1:190). In the Sunni tradition, this idea can be traced back to scholars like al-Ghazālī (1993, 242) and even al-Shāfeʿī (150-204 h) who believes that the minimum concept of clarity of a text is for those who are the addressees of the text and the text is in their language (al-Shāfeʿī 1938, 21).

It is accepted that one necessary condition to construe a word and/or phrase as absolute and categorical is the lack of any evidence suggesting conditionality. The evidence of conditionality is not limited to literary ones within the text itself; external sources of evidence must also be carefully considered due to their possible influence upon the final meaning of the text. This kind of evidence is sometimes called (al-gharīina al- maghāmīya) or situational evidence (Ansārī 1998, 1:162).

Among the critics who reject the credibility of single reports (al-khabar al-wāhīd) is that the texts have already been surrounded by many types of clarifying evidence which have become weakened or disappeared entirely with the passage of time (al-Āmelī 2011, 534).

Beyond these examples it is believed that all texts should be interpreted in the light of all external evidence. The importance given to the role of external evidence, however, is not the same in all schools of jurisprudence.

Origins of Borujerdī’s methodology

When interpreting a text, Borūjerdī tries to consider different subjective and objective elements of contexts surrounding the text. Considering a spectrum of historical facts relating to the content of the text is also a part of his contextualism.

One major subject regarding the method of interpretation of a text is how a jurist can realize whether a word or a phrase is absolute or conditional. According to the majority of scholars, three premises are required in order to judge that a word or phrase is categorical. First, the word must be potentially capable of denoting both non-conditionality and conditionality. Secondly, there must be no evidence, neither joined to the text nor separated from it, indicating qualification. And, thirdly, the speaker or author must be in the mode of depicting the entirety of his intention regarding that particular subject. These requirements have been generally accepted as “rational pre-requisites” of assuming non-conditionality and are referred to as Moqaddamāt al-hīkma. According to some, “the absence of a certain limit within the context of the conversation” is one further premise (Ḵorāsānī 1999, 287).

Borūjerdī seems less stringent when outlining these rational pre-requisites of wisdom since he reduces those three requirements to only the last one (Borūjerdī 2000, 396, Borūjerdī 1999, 1:100). Admitting the role of the possible surrounding sources of evidence in making the decree conditional, Borūjerdī goes far from an extreme version of contextualism, believing that when the decree literally belongs to a general concept this would be sufficient to acknowledge that the decree is unconditional (Borūjerdī 1994, 383). For instance, in discussing the rule of khoms (a religious alms of 1/5 of pure income) at the time of the absence of the infallible Imam he argues that, although verbal conversations are limited to their immediate addressees, their core is not limited to them and therefore can be generalized (Borūjerdī 1960, 138). This approach, among many others, would bring Borūjerdī close to the traditional textualist approach despite his orientation towards contextualism.

Despite this, in his practical legal reasoning within Fiqhī discussions, he is extremely sensitive to accounting for any type of evidence which may restrict the scope of the denotation of the text. He takes possible missing evidence of the texts very seriously. Therefore, one may indeed argue that the content of the only premise required by Borūjerdī as the “rational prerequisites” of assuming non-conditionality will cover all the three premises required by most jurists. Indeed, in many cases the text is not in the position of stating a general concept or making an unconditional law; this is due to the evidence surrounding the text.

Historically, it is not straightforward to trace the source of Borūjerdī’s methodology. According to his biography, he began studying jurisprudence in the Isfahān Seminary (al-Asadī 1999, 1:8). Amongst his foremost teachers in Isfahan was S. Mohammad Bāgher Dorcheʾī (died in 1924). Borūjerdī repeatedly showed respect for this learned scholar, mentioning him favorably until the end of his life. It is said that he was the author of many unpublished books. ³ Dorcheī was among the students of the great faqīh, Mirzā Habīb-Allah Rashtī in Najaf (1234/1819-1312/1894) and the author of many of his taghrīrāt (dictations) (Ṭehrānī 2009, 1:224). One can assume that Borūjerdī had been under the influence of this distinguished scholar in his jurisprudential approach.

His other professor of jurisprudence in the Isfahan Seminary was Abū al-Qāsem Dehkordī (died in 1934), who gave Borūjerdī the permission (ijāzah) for independent legal reasoning (ijtihād). There was a general tendency toward comparative jurisprudence in the Isfahan Seminary at that time, supporting the notion that Borūjerdī’s contextualism developed through his time there (Wāʿeẓzādeh 1961, 231).

There is not enough evidence to suggest that Borūjerdī borrowed his methodology from the Najaf seminary, where he moved later after years of study in Isfahan. Borūjerdī was in Najaf later for many years, but it seems that he moved to Najaf when his jurisprudential mentality had already been shaped in the Isfahan Seminary. He left Isfahan while he was recognized as a distinguished young legal practitioner (mojtahīd). Moreover, the Najaf Seminary was, and still is, more interested in literalism and textualism. Furthermore, whilst in Najaf he studied for a while under Sheikh al-Shariīaʿ Isfahānī (1850-1921), an Isfahan Seminary graduate who more likely belongs methodologically to Isfahan’s seminary.

His first available jurisprudential writings come from his teachings in Qom and demonstrate that he applied his methodology during the courses he taught. It is also unlikely that he followed any other methodology during his earlier teaching in Borūjerd prior to coming to Qom.

The old Qom Seminary was, to a large degree, a hadith-based school. The new Qom Seminary which was founded by Abd al-kaīm Ḥāʾerī Yazdī (1859-1937) in 1922 was in the same vein and Borūjerdī applied his contextualism more upon the narrations of the infallible Imams.

Due to historical traces of contextualism in different schools of fiqh, one may claim that contextualism is not specific to Borūjerdī. This is to some extent right, but what makes him a distinguished contextualist is his practical insistence on a wide spectrum of contexts including mental, external, the narrator’s personality, situations of speech, and so on. Moreover, he insists that understanding the words of the Shiʿah Imams is only possible by considering the common opinions of Sunni imams and jurists.

Some dimensions of Borūjerdī’s contextualism

To elaborate on Borūjerdī’s methodology I will point out to some examples and applications of contextualism and historicism.

Rījāli principles compatible with contextualism

Borūjerdī had his own school of Īlm al- Rījāl, a discipline in Islamic studies dedicated to the biographies of the transmitters of the narrations. He used to benefit from Īlm al- Rījāl more than Usūl al-fiqh (Wāʿeẓzādeh 2000, 226). His vast knowledge in the field of hadith and Rījāl included a deep insight into the other major schools of jurisprudence, as well as minor sects within the Shiʿite tradition such as the Zaydīya (Wāʿeẓzādeh 1961, 66). In many cases he used to resolve apparent contradictions between hadiths based on analytical Rījāli issues rather than by applying Usūli principles, particularly the secondary principles (al-Usūl al-amalīya). It is said he has acquired this valuable heritage from Isfahan’s seminary (66). Some of his Rījāli principles and assumptions made his approach far from pure textualism.

He believed in the continuity of the history of Shiʿite fiqh and that it has four basic periods:

a. Before Sheikh al-Tōusī.

b. From Sheikh al-Tōusī to Shahīd Thānī (1506-1559).

c. From Shahīd Thānī to one century after him.

d. Since then to the current century (Borūjerdī 1995, 42).

For him based on this historical fact, jurisprudential issues should be divided into two different categories. The first are those delivered by the former generation of jurists to the next one as something received from the infallible Imams without any change and development. He named this sort of question received rules (al-usūl al-motalaghāt). The second type are those that jurists themselves have inferred from available texts and other sources deeming them to be a matter of ijtihād and jurisprudential argumentations. He also classifies juristic books according to this demarcation (Borūjerdī 2009, 392, 399, 431, 437; 1960, 37; 1992, 92, 201). Based on this assumption he cares about the genealogy of each particular case. For example, he maintains that Shiʿite jurists were unanimous that Friday prayer was mandatory in the presence of the infallible Imam or his specific deputy, namely someone who has been appointed by the Imam for this role. It was from the time of Shahīd Thānī that jurists started discussing this qualification and some of them removed it from among the qualifications of Friday prayer (Borūjerdī 1995, 26). This genealogical study would imply that the early jurists close to the age of the Imams did not believe that Friday prayer is mandatory.

This view, of course, gives a flexibility and openness to many jurisprudential questions, while assigning a rigidity and inflexibility to some of them, thus ensuring both continuity and change. Although the idea is more related to historicism rather than to contextualism, it is a key component of Borūjerdī’s methodology. This is a ground for looking to the past and the historical background and development of any particular question.

In the same way, his insistence upon the idea of the continuity of the generations of narrators of hadiths has led to a specific school in Rījāl, namely biographical studies of transmitters. Developing the classification of all narrators from Prophet Mohammad and the infallible Imams into thirty-three generations since the time of the Prophet until now and counting his professors as the last of these (Borūjerdī 2009, 565-579) is one of the impacts of this view. He gives different values to the scholars of a different generation. For example, when talking about Ībn Jonaid Eskāfī (died around 991) he says: “he’s among the 10^th generation and we don’t know how much exactly he has been aware of the narrations; because we received no book from him to be able to evaluate the depth of his knowledge of hadith” (248). He also considers different jurists’ methodologies, even in their different books. For example, he maintains that Allāmah Hellī (1250-1325) argues on behalf of others in his book Al-mokhtalaf, even though they themselves have not argued in that way (565-579). Indeed, there is a sort of compatibility between his ideas regarding the narrators’ biographies and the history of jurisprudential questions. To him, both have had an uninterrupted history.

Another cause which led Borūjerdī to avoid an overly literal interpretation of hadiths was that he believed that it was common for transmitters to quote the content and general concepts of the utterances of the Imams and not their exact words (Borūjerdī 1960, 105, 127). Borūjerdī is not, of course, unique in having this idea. Many other scholars like Sheikh al-Tōusī were of the same opinion (al-Tōusī 1997, 95). Even in the hadiths themselves, there is evidence suggesting that it is permissible to quote the content of the narrations particularly when the transmitter cannot remember the exact wording of the Imam (Majlesī 1983, 2:161). Borūjerdī, however, seems to apply this principle in a broader scope. According to this view, a literal interpretation of hadith is hardly a proper way to realize the intended meaning of the text. He believes that, in many cases, what are collected as narrations are not the exact utterance of the Prophet and Imams, but the content of their sayings (Borūjerdī 1960, 105, 127). Therefore, in several cases he reduces different narrations, which are literally different, to a single narration concerning a single event (Borūjerdī 2008, 356, 370, 386; 1992, 48, 50). Sometimes he applies this approach in controversial cases after analyzing the wording and the content of the narrations carefully (Borūjerdī 1998, 276). This method is very far removed from those who basically assume these narrations to be different or contradictory simply because their wordings are slightly different.

Interpretative dimensions of Borūjerdī’s contextualism

Interpretation of hadiths based on historical facts

As mentioned above, history has a significant place in Borūjerdī’s methodology. He often refers to a historical fact to prove something and reject something else. For instance, considering the fact that the veil (hījāb) in Saudi Arabia was not common before Islam or at the beginning of Islam, and then was promoted by the Qur’ān, he criticized those who try to belittle the significance of the veil based on the practical convention of women before the revelation of Qur’anic verses concerning hījāb (Borūjerdī 2009, 277). Therefore, the historical fact that a practical convention is related to a specific era can help the jurist understand the significance of an issue. Similarly, when discussing narrations regarding the time of prayer, he interprets them by considering what was common among the early Muslim community regarding the time of prayers (65).

Borūjerdī did not limit the implementation of such hermeneutical techniques to the narrations, but also utilized them with reference to some verses of the Qur’ān. For example, he has his own understanding of the verse of Friday (Jumuʿa) prayer through referring to historical facts related to that verse (317). He insists that historical points can be considered as connected to contextual evidence. He insisted that, historically, Friday prayers were only held by the Prophet, the Caliphs, or one of their designated deputies (Borūjerdī 1995, 17). This should be a central point in interpreting all texts related to Friday prayer. Finally, based on this historical fact, he concludes that Friday prayer can be held only by those who hold governance. Again, historical facts serve as a means of understanding the text.

Even when talking about the ninth verse in surah al-Jumuʿa, he argues that because Friday prayer was being held by the Prophet before the descent of the verse, the content of the verse should be construed in the light of this historical fact and it cannot therefore be simply generalized without taking this context into consideration. In other words, although the wording of the verse stating, “O, you who have believed, when [the adhān] is called for the prayer on the day of Friday, then proceed to the remembrance of Allah and leave trade” is unconditional regarding the qualifications of those who can call people to the Friday prayers; but in the context of the verse, it was the Prophet who used to invite people to the Friday prayer and, therefore, one cannot argue that every Muslim is eligible to hold Friday prayers (Borūjerdī 2005 1:37, 45).

In the same way, if the wording of a hadith indicates that something is mandatory but, in reality, the great companions of the Imam and/or the body of the Shiʿite community were not aware of such a ruling, Borūjerdī takes this external fact as undermining the hadith; because his assumption is that the leading figures of the Shiʿite community and its body must normally be aware of such common issues if they exist in reality (Borūjerdī 2008, 406). It is as if the external reality is interacting with the text in suggesting its final meaning.

Similarly, if the common opinion, as it has been inferred from the conversation, is that a last will (wasīya) made by an ill person would be proper only when it is related to less than one-third of the whole of the testator’s wealth, then the plain meaning of hadiths suggesting that a will can go beyond that and is not limited to such a portion would not be reliable (Borūjerdī 1993, 54). Again, he uses an external fact as evidence for the interpretation of the hadith.

Indeed, not only objective facts but also subjective issues like the mentality of the Shiʿite community or transmitters are a part of the context which enables the jurist to realize the core of the hadiths.

Borūjerdī and contextual analysis of the text

Borūjerdī accords great value to contextual analysis of the text. This is partly because, in seminaries, it is almost always believed that the jurist must adhere to the meaning of the text as understood at the time it was written or uttered—an idea that makes seminarians close to a kind of originalism. ⁴ A part of this contextualism is to interpret words and/or expressions in the texts according to the meaning they had at the time when the term was employed (Borūjerdī 2009, 169). For example, according to a hadith a man told Imam Sādiq “I am on a journey and not able to find the direction of the Qibla at night.” The Imam then asked him: “Do you know the pole star?” He replied, “Yes” and the Imam said, “Put it in your right hand and, when you are on the path of pilgrimage towards Mecca (haj), place it between your shoulders” (Borūjerdī 2009, 193). Borūjerdī then tries to recreate the pilgrimage routes to Mecca at that time to understand the core of the hadith. He notes that it seems that, in the age of transmitter, there were two roads to Mecca; one was from Basra which was fixed and levelled during the time of Hārūn al-Rashīd, ʿAbbāsid caliph, and the other was the road of Kufa (194).

Similarly, according to some hadiths, it is prohibited or not recommended to pray recommended prayers at the time of an obligatory prayer until the obligatory prayer has been performed. The subject of this law is the time of the prayer (waght al-salāt). According to Borūjerdī, it would be simplistic to interpret this title as the whole time determined for a particular prayer; for example, regarding from noon to sunset as that specified for the noon prayer. Analyzing all the related texts on this issue and even some of the hadith narrated in Sunni resources, Borūjerdī concludes that our understanding of the time of prayer is different from what the addressees of these hadiths understood. He also raises the probability of intending the time of communal prayers which used to be held everywhere (158-170).

Accordingly, Borūjerdī’s fidelity to a textual approach is far from the narrow version of textualism that is labelled in modern linguistics as textual formalism and which is claimed to have been rejected by the whole movement of modern literary theory (Kaiser 2009, 96).

One aspect of his contextual methodology is that jurist must be fully aware of the whole single text or all related texts, if any, to be able to infer a ruling (hokm) from the text or texts. One of the most important hadith sources in the Shiʿa tradition is the book Wasā'il al-Shīʿa written by Sheikh Hor al-Āmelīi. Despite the importance of this book, Borūjerdī believed that it has some problems, and a new hadith collection should be compiled. One of the concerns in planning and pursuing this issue has been the fact that al-Āmelīi had interrupted the narrations in many cases and the jurist cannot have the entire text in front of him when studying the narration. In the same way, he sometimes did not mention all the hadiths that are related to a topic and could have helped the understanding of the existing hadiths more precisely. This emphasis by Borūjerdī stems from his contextual approach because a part of a text can help the reader understand it more precisely. ⁵

Consideration of the characteristics of the transmitters

Borūjerdī repeatedly observes biographical details related to the narrators in order to help interpret the text in a specific way. For example, in previous times the farsakh, a unit of length equal to roughly six kilometers, was a standard unit for measuring distance but its length was different in different regions. An Iraqi farsakh, for example, was twice as long as a Khorāsānī one. Hence, the jurist must be aware of the sense in which the term is used. One way for realizing this is to understand those to whom the narration is addressed. In a narration narrated by a Khorāsānī man, Borūjerdī argues that since the narrator is from Khorāsān, the term “farsakh” in the narration should be construed as a Khorāsāni farsakh (Borūjerdī 1995, 64). Similarly, there are two hadiths indicating expressly that, when the pole star is behind someone, he would certainly be facing the direction of Qibla (Mecca). Borūjerdī understood these narrations to have been issued for a specific people who live in a particular region (Borūjerdī 2009, 193).

A similar approach is taken to understand a hadith from Imam Sādiq reported by a person called Abd al-Malek, who is the brother of Zorāra, a great figure among the companions of Imam Sādiq. As the narration states, Imam Sādiq strongly condemns Abd al-Malek for not attending Friday prayer. Due to linguistic implications of the strong condemnation delivered in the narration for not taking part in Friday prayer, it can be understood as strong evidence that the Friday prayer is wājib (mandatory). But Borūjerdī argues that Abd al-Malek’s situation, and even his being a Shiʿite, have not been proved to us even though he is the brother of Zorāra. Therefore, it is possible that the Imam encouraged him to take part based on his own Sunni belief that Friday prayer is obligatory. He also adds that we don’t know too much about the rest of the conversation between the Imam and Abd al-malek, and there were probably people in the session which led the Imam to talk about the importance of Friday prayer in that way. The jurisprudential consequence of this analysis is that the strong disapproval of the Imam on leaving Friday prayer cannot be evaluated as general or as evidence of necessity of Friday prayer for every Muslim (Borūjerdī 1995, 64).

As we know, the concept of displaced speech is often highlighted nowadays in modern linguistics. The concept basically increases the interpreter’s concern over the fact that language can be used to refer to contexts that are removed from the immediate situation of the speaker (in other words, it can be displaced). For example, if someone says I was afraid, it is not necessary that the speaker is still afraid (Crystal 2008, 177).

Following such an approach, in some cases Borūjerdī considers the personality of the transmitters and the level of their knowledge as a means of interpretating the conversation between the Imam and the transmitter. For instance, Ibn Abī Nasr Al-bazantī asks Imam Rizā about the religious dues levied on the wealth one gains through mining. Imam Rizā says that nothing is mandatory unless it reaches the amount in which zakāt (a specific religious tax) is mandatory. It is not yet clear whether the Imam meant the payment as zakāt or khoms; these are two different religious alms with certain different rules. Indeed, one possibility is that a portion equal to one-fifth of the profit should be paid as zakāt. Another probability is that the Imam is talking about khoms as another specific religious tax. Considering the great personality of al-Bazantī, and that he was counted among the knowledgeable companions of Imams, Borūjerdī argues that it is unlikely that he was asking the Imam about such a simple matter. He was a feature of the Shiʿite community and must have been fully aware that such a case was a subject of zakāt not khoms and, indeed, he only asked the Imam about the conventional limit (nisāb) by which the khoms is obligatory (Borūjerdī 2008, 363).

In his discussion on wasīya (testament), when speaking about a narration from the Prophet quoted in a Sunni collection of hadith by Imrān bin Hosain, he criticizes the hadith on the grounds that we are not assured how well Imrān was acquainted with the law of last will and the details of the event he has talked about (Borūjerdī 1993, 37).

Similarly, there is a great disagreement between Shiʿites and Sunnis over the time of prayers. In Sunni jurisprudence, it is believed that the noon and afternoon prayer must be held separately. The same is said regarding the dusk and night (Īshā) prayers. Referring to a hadith reporting that Anas bin Mālik held the afternoon prayer immediately after the noon prayer, Borūjerdī argues that since Anas was the servant and doorkeeper of the Prophet, he would normally have been well acquainted with the details of the Prophet’s habits and acts of worships. Therefore, his understanding of the Prophet’s habit is contrary to those who believe that these two prayers must be held separately (Borūjerdī 2009, 66; 1992, 1:88).

When evaluating the transmitters in the chain of the hadith he sometimes mentions their professions and jobs (Borūjerdī, 2009, 161) which might seem irrelevant for the interpretation of the hadith, but this is not the case. In some cases, the business and profession of the transmitter might play a role in understanding the hadith. For example, a hadith transmitted by a slave-merchant might be rejected when it promotes slavery or contains a law against slaves, due to the conflict of interest.

Based on this way of utilizing biographical details in jurisprudential argumentation, one can claim that he adduces different historical points to infer the sense of the text. It means that, in his methodology, biographical details are not used only in terms of evaluating the authenticity of narrations as is common in seminaries, but to aid a better understanding of the content of the text as well.

Borūjerdī and the mentality of the addressees

In many cases Borūjerdī assumes that the mentality of narrators and addressees is a key element for understanding the narrations of the infallible Imams. He does not interpret the text regardless of the live conversation between the transmitter and Imam. Rather, he tries to discover the mentality of the transmitters first, and then interpret the Imam’s response based on this given mentality (Borūjerdī 1993, 54). This means that he often tries to be a part of the conversation between the transmitters and Imams.

For example, there are some narrations insisting that it is allowed to hold the dusk (maghrib) and night (Īshā) prayers together. Addressing the fact that many people were not aware of this point, Borūjerdī insists that the focus of these narrations is simply on the permissibility of holding the dusk and night prayers together (Borūjerdī 2009, 113). He often put the question of the narrator from the Imam and the Imam’s response as a whole text and interprets the response with close regard to the question (227).

For him, the type of question from the Imam is also a source for finding the final meaning of the hadiths. When talking about the necessity of recitation of a whole surah in the first and second units of each daily prayer he argues, among other things, that all the companions of the Imams believed that a complete surah is necessary; hence no one asked our Imams about that. Rather, they only asked about the qualifications of the Surah (448).

The dominant Sunni opinions as a context for interpretation of hadiths

It is believed that many narrators and, in particular, the learned amongst them, had been aware of the rulings of the Sunni school of fiqh. This is true even about many ordinary narrators and Shiʿites who spoke to the infallible Imams about juristic questions. Such a mentality and atmosphere gave a specific color to any dialogue between the Imams and their followers. This mentality is an important contextual element that should be considered when attempting to infer the intention of the texts.

Considering this fact in almost all jurisprudential questions, Borūjerdī first explains the opinions of the four major Sunni juristic schools regarding the case he is dealing with before commencing any interpretation of the Shiʿite narrations which could then be firmly rooted in any discovered context. Close attention was paid to the opinions of Imam Mālik who, according to Borūjerdī, had some academic connection to Imam Sādeq (Borūjerdī 2009, 53). He is unique in this regard. He believes that even the companions of the Imams, when transmitting a hadith, sometimes used to focus simply on the specific part of the hadith which was concerned with a particular dominant Sunni opinion and leave out its other part (Borūjerdī 1998, 276).

Despite some similarities between such a contextualism and comparative studies, they are not identical. Borūjerdī pays great attention to comparative jurisprudence and, in many instances, he explains the interactions between Shiʿa and Sunni jurisprudence not only in specific jurisprudential questions, but also in shaping the body, discipline, and the structure of the fiqh (Borūjerdī 1993, 205). Yet, his reference to Sunni opinions here is a very clear aspect of his contextualism since his main purpose was to achieve a better understanding of the Imams’ narrations. He repeatedly insists that we are in a dire need of understanding the idea of those schools in order to fully realize the meaning of our infallible Imams’ narrations. Hence, when discussing a fiqh subject he first clarifies Sunni opinions on it (Borūjerdī 1993, 60). For instance, he considers narrations indicating that Friday prayer can be held in small villages as a rejection of Abu-hanīfa’s opinion (Borūjerdī 1995, 54).

Implementing the same approach, he prefers the idea that the narrations insisting that bismillāh must be recited loudly are confined to those prayers in which recitation must be loud, and not the noon and afternoon prayers during which the hamd (the opening chapter) and another chapter that follows it must be recited in a whisper because the point was that the majority of Sunni scholars believed that bismillāh in such a prayer must be or permitted to be recited in a whisper and the Imams rejected this (Borūjerdī 1999, 2:207).

Borrowing from Borūjerdī’s methodology one may argue that the great value given by Shiʿite Imams to the bismillāh and that is an essential part of each surah (al-Āmelī 1977, 4:747) is a kind of reaction to a dominant Sunni opinion that bismillāh is neither an independent verse (āyah) nor a part of every chapter of the Qur’ān. Similarly, Borūjerdī believes that hadiths suggesting that the payment of one-fifth of the treasure trove (kanz) is not limited to gold and silver are rejecting the Abū-hanīfa’s fatwa that such a religious tax is mandatory only when the treasure trove comprises gold or silver (Borūjerdī 2008, 345).

Needless to say, Borūjerdī’s concentration on contextualism does not mean that he ignored the textual approach altogether. In many cases, he treats the case in hand with complete loyalty to textualism and, in many fiqhi questions, he interprets the text based on a literal interpretation. Also, methodologically, Borūjerdī is far from using juristic analogy (qīyās). For example, he assumes that the language of a narration justifies some restrictions on the wife’s inheritance from her husband’s bequest as being too far from the tone and the style of the Imam’s utterance simply because it contains some analogical arguments (Borūjerdī 1993, 111). This means that he is absolutely against using conjecturable estimations and juristic analogy in legal reasoning.

Borūjerdī was often involved with teaching and researching non-political parts of Islamic jurisprudence such as prayer, khums, last will, and inheritance. Therefore, the traces of his contextual approach should be searched for in the topics that he left behind. However, application of his context-oriented approach in socio-political subjects such as freedom of speech, apostasy, human rights, punishments including the death penalty and women’s rights has its own reflections and consequences.

The continuation of contextualism in Borūjerdī’s followers

The contextualism of Broujardi has been adopted by his students to a lesser or greater degree. In particular, it is strongly defended by his distinguished successor Ayatollāh Hosainalī Montazerī (1922-2009). In the preamble of Al-Badr al-Zāhir which is a dictation of the courses of Borūjerdī on the Friday prayer, Montazerī insists on the importance of historical points and developments in jurisprudential argumentations (Borūjerdī 1995, 8). In the preamble of another book entitled Ketāb al-Salāt, which is the dictation of almost ten years of disquisitions pertaining to the rulings of prayer taught by Borūjerdī, Montazerī again insists the importance of this methodology and that his main purpose of publishing this book was to introduce the unique and authentic methodology of his professor. According to him it is the most reliable way of reaching the Holy Legislators’ intentions (Borūjerdī 2009, 14).

Moreover, Montazerī himself at the beginning of almost all jurisprudential questions tries to outline the history of the question and mention the opinions of all four other Sunni schools concerning that case. He repeatedly insisted on the importance, validity, and reliability of this method. He was worried that this repetitive point might make his students fed up and tired but, at the same time, he believed that it was worth repeating. In particular, he insisted that a correct understanding of the narrations is possible only through an understanding of those Sunni opinions which have been dominant at the time that the Shiʿite narrations were issued.

Borrowing from his teacher Borūjerdī, he believed that the infallible Imam’s narrations were in fact like commentaries on the dominant Sunni opinions on those questions. One misunderstanding of this point is that Shiʿite jurisprudence and its narrations are like some margins and commentaries on Sunni jurisprudence in the sense that the former is thin and the latter is rich and well-developed, while he did not mean this at all. He was just insisting on his professor’s methodology which values the whole context in which the texts and utterances are issued. According to him, the infallible Imams were fully aware of the dominant opinions in different Islamic regions and therefore considered them when raising their own views.

Certainly, some different and innovative opinions of Montazerī over vital questions like peace and human rights issues spring from his contextualist approach. However, talking about these opinions and fatawā in detail would require another separate article. To give an example, most of the scholars of different schools of fiqh take for granted that diya, the traditional compensation due for the shedding of blood and other serious injuries, are fixed and there is no way to change them. Montazerī, however, looks at the context in which these laws have been established. He considers the historical fact that these laws were laid down by Abd al-Muttalib, the grandfather of the Prophet, and were then ratified by the Prophet. He concludes that determination of the quality and quantity of diya is a matter of custom and rationality. In other words, Abd al-Muttaleb intervened on the issue as the wise leader of the society and this implies that the leaders and experts of each society can determine such issues (Montazerī 2008a, 48). This kind of fatwa in itself would substantially change the whole chapter on diya. Indeed, based on this fatwa, which is the result of a historical and contextual approach towards the evidence of the case, the whole chapter should be reread and rewritten.

A further example can be seen in his approach to the punishment for blasphemy. Looking to the historical facts about the hadiths related to blasphemy, Montazerī interprets them in a different way mentioning that such a severe punishment, namely the death penalty, must not be determined for those who have simply changed their mind on ideological issues. Rather, it must be due more to some practical and harsh measures taken by those who left the Muslim community and became involved in a war against Muslims (Montazerī 2008b, 50). He was quite keen to develop this methodology and apply it in more socio-political jurisprudential questions. ⁶

Certainly, other students of Borūjerdī have also been under the influence of his methodology. Mortazā Motaharī (1919-1979) is certainly among them. Mentioning the fact that he participated in Borūjerdī’s teaching for eight years, Motaharī (1988, 191) expressed admiration for and explained different aspects of the contextualist approach of his professor and insisted on the need for its development. He wished for this method to be followed and even complemented (203). His book on the question of the veil (hijāb) is full of historical discussions such as the hijāb before Islam, the hijāb in Saudi Arabia before the descent of the related Qur’ānic verses, and so forth. In order to prove that the niqab or face covering is not mandatory he relied upon historical facts (Motaharī 2000, 176).

It seems that S. Mohammad Hosainī Beheshtī (1929-1981) was also under the influence of his professor when he wrote “The Environment of the Emergence of Islam” and insisted that, in order to understand Islam, it is necessary to know about the society in which Islam emerged (Beheshtī 2008). This idea, he insists, is coming from a more general methodological point that the best way for understanding a religion is to rely upon historical research (16). In his work on exegesis of Holy Qur’an, he repeatedly refers to historical facts to interpret the core of the verses (Beheshtī 2021, 1:17, 102; 6:13, 250-2). Describing the Qur’an as a live conversation, he insists that the Qur’an cannot be uninfluenced by the situations in which it has been revealed (Beheshtī 2011, 17). Insisting on the role of the causes of revelations, (39) he goes beyond traditional views and believes that, for a better understanding of Qur’ān’s social attitude, a vast knowledge of different social contexts is needed. Without such knowledge, it would be hard to find out the subtleties and precisions of the Qur’ānic verses (49). A consideration of their fiqhī writings shows that both Motaharī and Beheshtī have applied Borūjerdī’s methodology to a variety of fiqhī questions.

The capacity of contextualism for further development

Contextualism can be developed in several ways. First, it should be applied to all Islamic texts including the Qur’ān and Prophetic narrations.

Certainly, Islamic jurisprudential teachings have considered the dominant customs and culture of those people who have been the first addressees of the divine legislator. Sharia was not constituted regardless of the realities of the society and people’s mentalities, customs, traditions, and beliefs. So, the Prophet’s narrations and even the Qur’ān cannot be understood without understanding the surrounding circumstances in which they are revealed and emerged.

Second, the contexts that should be considered are not limited to those expressed by Borūjerdī and others. One important point in developing the idea of contextualism is that the addressees of the Qur’ān and the Prophet Mohammad were not at a high level of culture and civilization. The Qur’ān repeatedly describes that region as in a period of jāhiliya or ignorance (al-fath 48:26; al-ahzāb 33:33). A remarkable number of beliefs, customs, and behaviors of the Qur’ān’s addressees have been condemned in the Qur’ān itself. The prophets followed social rules in their reformist mission. Their efforts do not work instant miracles, because social changes follow their own rules.

Trying to make major changes in people’s attitudes rapidly may make people disgusted by Islam and it’s whole mission. Thus, the Prophet repeatedly requested his companions and representatives to consider this significant point. The prohibition of making people disgusted by Islam can be evaluated as a legal maxim applicable in both understanding Sharia and its implementation. Accordingly, Islamic teachings should be applied through a reasonable interaction with the society.

The Prophet’s manner and method and even some Qur’ānic verses, such as those relating to the prohibition of alcohol, show that Sharia was shaped and enacted gradually. This means that the principle of graduation and moderation in the implementation of Sharia should be taken into account.

The Prophet died while he still had a lot of ideals not yet performed. A part of this was in the field of women’s rights and those of slaves. It was due to the prevailing cultural circumstances which did not allow the prophet to perform all his ideas. The Prophet was objected to by some companions simply for certain reforms he made in women’s rights. These realities show that there were a lot of obstacles in front of the performance of Sharia.

Facts concerning an underdeveloped and hegemonic culture that were fighting the Prophet and his project should be considered as the contexts through which the Islamic Sharia has been shaped. Therefore, his narrations and other teachings should be understood in the light of his unrealized aims and purposes. Texts, in this approach, are not belittled. Rather, they are understood in greater depth and with a kind of purposivism.

A further dimension of contextualism is to understand Islamic texts in the light of paradigmatic shifts. Paying attention to various shifts of paradigms may change our understanding of a specific text or even of a collection of texts relating to a subject. For example, there are a few texts that permit ordinary people to undertake the implementation of legal punishments. There are even some hadiths that seemingly permit a husband to punish his wife or other members of his own family on certain occasions, such as committing adultery. Certainly, such texts can only be acceptable when a private concept of criminal justice is accepted. But, when the prominent feature of criminal justice becomes public, all those texts should be reconsidered in the light of this paradigmatic shift. Nowadays, a public concept of justice considers the performance of criminal justice to be a matter left to governmental institutions. This view prohibits ordinary citizens from engaging in the implementation of punishments. If such a concept of justice is not rejected by Islamic teachings, a jurist can and even should reread all the related texts in the light of this paradigmatic shift. The list of paradigmatic shifts is, of course, open and long; and the shift from obligation to right, the shift from accepting differential discrimination to equality, the shift from religious intolerance to tolerance, and the shift from war and conflict to peace and social solidarity are but a few examples of these.

Similarly, there are narrations considering girls of nine (lunar) years old as fully responsible. This does not seem to be consistent with the real facts in all societies. So, it cannot be referred to as the basis of a universal law. The same can be said regarding hadiths encouraging a girl of nine lunar years to get married. Since nowadays, such a girl is not capable of motherhood and undertaking its responsibilities. For a similar reason we can raise serious doubts about the permissibility of the death penalty for particular crimes as it is prescribed in some Islamic texts because they basically correspond to a society in which the means of social control were very limited.

Conclusion

A narrow textualism which is the prominent aspect of the methodology of Islamic seminaries has often resulted in a limited and inflexible understanding of Sharia. Sometimes, it leads to disastrous results. Conversely, its rival contextualism can play a major role in achieving a better understanding of Islamic texts. In Borūjerdī’s methodology, this idea was applied mostly to analyzing the infallible Imam’s narrations in the context of other schools of jurisprudence, but it is not limited to this case. The idea was followed assiduously and somehow developed and insisted upon by Montazerī. Due to the authenticity of the idea, all the surrounding circumstances and influential conditions, whether they are related to opinions and mentalities or to external facts and realities, may help the reader realize the main aim of the text in question. So, to reach the intended sense of a text requires a lot of information about the circumstances in which the text emerged. It is wrong to believe that the divine decrees can be arrived at by simply turning to the available hadiths collected in the related collections. Many external, subjective, and objective sources of evidence have already accompanied Islamic texts and the jurist has to strive to find them among the historical facts. This will render the jurist’s task more complicated but is more likely to help them to reach the reality of the divine lawmaker’s intention.

To follow up and in order for the idea of contextualism to blossom particularly in its historical sense, seminaries are in a great need of the study of history in general as an integral part of their educational programs. For this to be achieved, the scope of historical studies should not be limited to biographies of the narrators as is currently the case nowadays in the discipline of Īlm al-Rījāl. The study of the era of jāhilia in which many Islamic texts are revealed and issued becomes a necessary part of the process of ijtihād. Studying the attitudes, culture, and language of the first generation of the Muslim community about different social affairs would certainly help us to understand how Islamic teachings interacted with people in the processes of lawmaking.

Today, the seminary educational curriculum does not accord due importance to historical studies. Even the teaching of Īlm al-Rījāl is often marginalized in their educational programs. The same can be said about the history of fiqh, its different periods, and its developments through history. At the very least, a strong comparative jurisprudence would be the fruit of contextualism.