العقل الفقهي المعاصر في العراق أشكلة العملية الاجتهادية في تراث محمد باقر الصدر

This study examines the crisis of contemporary jurisprudential reasoning in Iraq as one of the structural challenges obstructing the formation of a modern state. The roots of this crisis lie in the inability of certain religious actors to grasp the methodological transformations that Islamic thought underwent during the second half of the twentieth century—particularly those related to analyzing the epistemic structure of inherited legal rulings, the historical limits of their validity, and the relationship between the scriptural text and social reality. One of the clearest manifestations of this crisis is the growing trend toward the sectarianization of the Personal Status Law, which transforms religious freedom from the right to choose a jurisprudential opinion within a unified national legal framework into a compulsory commitment to an entire sectarian code that cannot be revised. The study argues that the inclusion of Article (41) in the Iraqi Constitution theoretically allowed for reconciling a unified civil legislation with a multiplicity
of jurisprudential opinions within a single legal framework. Yet subsequent developments—especially the enactment of Law No. 1 of 2025—shifted this freedom toward full sectarianization of the legal system by allowing citizens to adopt an entire madhhab definitively. Thus, the law became a mechanism for reproducing identity fragmentation and reinforcing a quasi-clerical tendency within legislation, rather than serving as a means to strengthen citizenship and the civil state. The study proposes that one of the most effective pathways for addressing this crisis lies in recovering the jurisprudential contributions of the eminent scholar Imam Muhammad Baqir al-Sadr, who advanced a sophisticated model for understanding the scriptural text, grounded in interpretive caution, attentiveness to social context, and a firm belief in the state’s legislative authority within what he termed the “zone of legislative vacancy.” Al-Sadr’s importance stems from his role as the intellectual father of Iraqi political Islam, and from the fact that all major contemporary religious actors claim him as a foundational reference, both intellectually and politically. Analyzing his jurisprudential vision, therefore, offers a gateway to uncovering the contradictions between his premises and the current sectarian codification projects pursued in his name.The analysis begins
with three methodological assumptions that constitute the basis for critiquing
the sectarianization project: (1) the validity of religious legislation is historically conditioned, (2) closed, totalizing sectarian affiliation is untenable, and (3) Islam is not a priestly religion and possesses no ecclesiastical institution comparable to the Church. These assumptions, the study argues, provide a shared foundation for engaging with advocates of sectarian codification and for exposing the contradictions between their legal choices and the very premises they claim to uphold.The study then offers a focused and rigorous analysis of al-Sadr’s understanding of the process of ijtihad. For
al-Sadr, religion possesses a normative character expressed in its being “a method of understanding reality.” The human being is capable of discerning his own interests, yet his legislative problem is primarily ethical, not epistemic—a conflict between self-interest and the demands of the public good. Al-Sadr maintains that the role of the jurist is to discover the Islamic system, not construct it, and that the foundational scriptural texts are neither explicit nor unequivocal in their meaning; indeed, they often “obscure their own content” because they were not written in formal legal language. As a result, the process of ijtihad is, in his view, a probabilistic and complex enterprise in which
the jurist confronts the possibility of error in the text, the possibility of error in interpretation, and the possibility that relevant texts may be missing altogether. Al-Sadr further notes that a substantial portion of the Prophet’s legislative practice reflects time-bound applications tied to the specific conditions of his community rather than eternal legal norms. Thus, not every aspect of the Prophet’s sīra constitutes an exemplary model to be permanently emulated. He also stresses the necessity of a social understanding of scriptural texts, arguing that most legal rulings arose as answers to specific questions rather than as independently formulated legal statements. Hence, they cannot be properly understood without knowledge of their social context. From this, al-Sadr reaches a decisive conclusion: categorical rulings in Islam do not exceed five percent
of all rulings, while the remaining ninety-five percent are presumptive, open to interpretation, and even subject to change. Based on this framework, al-Sadr redefines the role of the state—beyond the rare categorical obligations and the presumptive interpretive rulings—as the legitimate authority responsible for regulating the vast domain of “publicly permissible matters” (al-mubāḥāt al-ʿāmma) according to social welfare, through the mechanism of the “zone of legislative vacancy.” The study argues that the Iraqi state, under the constitution approved by the people, possesses full legitimacy to exercise these powers, a position entirely consistent with al-Sadr’s writings and his final public appeals shortly before his assassination. Thus, introducing sectarian jurisprudence into civil legislation lacks theoretical grounding and contradicts al-Sadr’s jurisprudential vision, which grants the state broad legislative authority.
The study concludes with several central findings:
1) al-Sadr’s jurisprudential framework presupposes the historical character of a large portion of Islamic rulings;
2) ijtihad is an inherently probabilistic human activity, the outcomes of which cannot be transformed into a rigid sectarian identity;
3) the project of sectarianizing the Personal Status Law contradicts al-Sadr’s principles and belongs to a jurisprudential logic that reproduces stagnation and identity fragmentation; and
4) the modern state—according to al-Sadr’s thought—is capable of managing legislation in accordance with the public interest without converting jurisprudence into a clerical authority.
The study concludes that resolving the present crisis requires moving beyond scholastic jurisprudence toward a living, dynamic ijtihad capable of redefining the relationship between text and reality, and reaffirming that the sharīʿa, as a divine dispensation, can only be understood through awareness of the limits of human understanding and its social embeddedness. The paper thus opens a new research horizon calling for a reconsideration of the philosophy of rabbāniyya and the prophetic experience within a historical-hermeneutical framework—one that can enable Iraqi legal thought to transcend sectarian rigidity and develop a more coherent legal structure capable of supporting a modern national state.