Two Shi‘i Jurisprudential Methodologies to Address Medical and Bioethical Challenges: TraditionalIjtihādand FoundationalIjtihād

Journal of Religious Ethics 42 (2):263-284 (2014)

The legal-ethical dynamism in Islamic law which allows it to respond to the challenges of modernity is said to reside in the institution of ijtihād (independent legal thinking and hermeneutics). However, jurists like Mohsen Kadivar and Ayatollah Faḍlalla have argued that the “traditional ijtihād” paradigm has reached its limits of flexibility as it allows for only minor adaptations and lacks a rigorous methodology because of its reliance on vague and highly subjective juridical devices such as public welfare (maṣlaḥa), imperative necessity (ḍarūra), emergency (iḍtirār), need (ḥāja), averting difficulty (‘usr) and distress (ḥaraj), hardship (mashaqqa), and harm (ḍarar) without interrogating the fundamentals (uṣūl) of ijtihād. In contrast, in the “foundational ijtihād” model theology, ethics, intellect, epistemology, linguistics, hermeneutics, modern sciences, history, cosmology, anthropology, and the sources of Islamic legal theory (uṣūl al-fiqh) interact with one another to obtain resolutions that are just and non-discriminatory
Keywords applied jurisprudence in Islam  Islam and bioethics  Shi‘i law and legal theory  Islamic legal reform  ijtihād  Mohsen Kadivar
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DOI 10.1111/jore.12056
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Before Revelation: The Boundaries of Muslim Moral Thought.Bernard Weiss & Kevin A. Reinhart - 1999 - Journal of the American Oriental Society 119 (2):317.
Brain Death and Islamic Traditions.Birgit Krawietz - 2003 - In Jonathan E. Brockopp (ed.), Islamic Ethics of Life: Abortion, War, and Euthanasia. University of South Carolina Press. pp. 194--213.

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