تاثیر مبنای معرفت شناختی عملگرایی بر مبنای الزام فقه حکومتی اهل سنت در کشورهای مسلمان

This study examines the encounter between traditional Islamic jurisprudence (fiqh) and modern law. In its historical development, traditional fiqh has been foundationalist and systematic, and has enjoyed scholarly authority. Traditional fiqh can be classified within the category of religious natural law and possesses a paradigm of its own. Within this paradigm, the basis of the binding force of legal principles and rules is articulated within the epistemic system of theocracy. Its legal methodology is grounded in the discipline of *uṣūl al-fiqh* (principles of Islamic jurisprudence), while the end or telos of legal rules, in accordance with the classical theory of Islamic philosophy, is the establishment of an Islamic utopian state (*al-Madīna al-Fāḍila*, the Virtuous City).



The problem is that, in the process of modernization in Muslim countries, particularly with the acceleration associated with the implementation of development programs, the epistemic foundation of modern pragmatism has brought about a significant transformation in the basis of the binding force of legal rules in Muslim countries. This transformation can be explained in terms of a paradigm shift in traditional fiqh, from traditional natural law to modern natural law. Although the pragmatic approach draws upon the idea of theocracy as a useful component, it does not, in reality, regard divine will as the basis of the binding force of a legal rule. Rather, it makes use of law as an instrument for establishing legal rules and conceives of law as the embodiment of the will of the state. In the modern approach, the source of legal obligation lies in a human-like rationality.



Although the influence of pragmatism on the basis of legal obligation in Muslim countries was reflected more extensively in private law until the middle of the twentieth century, today it has also extended into constitutional law and citizenship rights, and has even generated prescriptions concerning the rights of religious minorities and relations with states deemed belligerent toward Islam, such as Israel. Pragmatism has challenged the methodology of traditional fiqh and, through non-foundationalism, has transformed the method of deriving legal rulings from the Qur’an and the Sunnah.



Although the modern pragmatic approach to law initially affected positive law in matters such as property rights and, among other things, land reforms, endowed properties (*waqf* properties), and inheritance, its sphere of influence has extended beyond the domain of private law and has now permeated the entire range of traditional fiqh. There is a concern that unwarranted expansions may lead to the proliferation of pragmatic approaches within Islamic law and ultimately result in the complete dissolution of traditional fiqh.



The manner in which Islamic law has been influenced by pragmatism has led to the reduction of the epistemic source of Islamic fiqh and law to instrumental reason, thereby introducing a form of unconstrained *ʿurf*-orientation—an unrestricted reliance on custom—into the system of deriving religious rulings.



The growing influence of modern pragmatic approaches within the traditional fiqh of Muslim countries initially began in the Ottoman Empire and subsequently spread to Egypt; it has now taken root in Saudi Arabia. The inclination of the religious-intellectualist movement in Iran toward this approach indicates that modern legal pragmatism enjoys a significant position among intellectuals in Muslim countries. The absence of an epistemological analysis of modern legal pragmatism, on the one hand, and the neglect of the realist capacities of traditional fiqh, on the other, have caused pragmatism to move toward the dissolution of traditional fiqh.



By providing an analysis of the epistemological dimensions of modern pragmatism and focusing on the social needs of Muslim countries, this article seeks to demonstrate which factors have caused modern legal pragmatism to be imposed upon traditional fiqh. Since this study is conducted at the level of the philosophy of law, it also seeks to demonstrate the realist capacities of traditional fiqh and to defend the possibility of an interaction between traditional fiqh and modern legal pragmatism.



In fact, the research agenda of this study is to investigate, first, the domains in which pragmatism exerts influence; then, through diagnosing the existing situation and philosophically analyzing it, and by engaging with the realist dimensions of fiqh, to delineate the desirable state. In other words, this study seeks to formulate an appropriate model of interaction with legal pragmatism within Iranian fiqh and law, so that, while preserving the social values embodied in fiqh at the methodological level, it may address the social needs of an Islamic society.



This study initially, through descriptive analyses, demonstrated the manner in which pragmatic thought entered the fiqh and legal systems of Muslim countries and examined the socio-political contexts in which this approach emerged. According to this study, the pragmatic approach to law created a context in which empirical approaches to law—including law and economics, sociology of law, psychology of law, attention to the will of the judge in statutory interpretation, and similar approaches—could develop. In this respect, it enabled law to become more practically applicable and to provide practical prescriptive solutions to problems rooted in the external realities of society and in matters that are observable and amenable to empirical investigation. Yet, alongside these features, which law in fact deeply needs, the shortcoming of pragmatism is that it has become immersed in secularism and has disregarded theoretical questions. This disregard for theoretical foundations and principles poses considerable risks to Islamic fiqh and law and leads to the complete dissolution of fiqh.



Fiqh, however, although it is a foundationalist discipline and follows its own specific theoretical principles, also incorporates a practical dimension. In other words, fiqh is classified among the practical sciences (*al-ḥikma al-ʿamaliyya*), and many of the propositions it issues—such as those concerning transactions (*muʿāmalāt*)—refer to reality and to observable matters. From this perspective, empirical studies of law can assist fiqh in this dimension. Contrary to the position of contemporary religious intellectuals in Iran, who seek to sever the juridic