Document Type : Research Paper
Authors
1
Associate Professor, Department of Private Law, Faculty of Law, University of Tehran (Farabi College), Qom, Iran,
2
PhD Student (Private Law), Faculty of Law, University of Tehran (Farabi College), Qom, Iran,
Abstract
In modern societies, although in most legal systems of the countries there is a legislative power, the mechanism of drafting and reforming laws in each of them is based on the principles and intellectual and historical foundations and social and cultural conditions of the country. Therefore, examining the relationship of Islamic Sharia with laws and legislation in Islamic societies is a crucial legal issue; In Iran, scholars of Shi’i jurisprudence have extensively explored and investigated this issue since the Constitutional Revolution (the Mashrutiyat 1906-1911), and tried to theorize the possibility (javaaz) and mechanism of legislation within the Islamic societies. Notably, the theory proposed by Mirza Mohammad Hussein Naini, which categorizes rules as fixed or variable, significantly influences the legislative process in the Islamic Republic of Iran. In this descriptive-analytical essay, we are dealing with the views of two most important designers of the theories in the field of variable rules and we are comparing what Naini calls "ma la nass fieh" and possibility and mechanism of human legislation in this area, with what Al-Sadr calls "mantaqato Al-faragh" and the authorized scope for human legislation in this area.
According to the Naini's theory, most of the cases related to governmental administration, ranging from micro-levels matters such as traffic laws, to macro-levels issues such as development plans, fall into the variable category of rules; And in this way, we can justify transtemporal and extraspatial rules and cossistant with social and economic developments in the Islamic legal system. While these variable rules are considered part of Shariah, their content is entirely customary and expert-driven, described by Naini as “orfiyah mahzah” (purely customary). Consequently, the duty of the legislative power is not merely to derive God’s commandments or applying these commandments to the issue (ie. compliance in the application stage); instead, the duty of the parliament is enacting laws based on expert assessments of societal benefits.
But according to Al- Sadr, the rules of Islam, whether are superstructural and substructural, should be deduced in the form of a theoretical compound and all of these rules should be implemented. When mandatory superstructure rules exist, they must be followed. In other cases, adherence to basic rules provides the foundation, and variable rules are enacted accordingly. As a result, the Islamic Ruler, in the area where there are no mandatory rules, formulates and enacts laws based on general implications of existing rules and taking into account the non-opposition to mandatory laws.
Therefore, even though Al-Sadr's theory in relation to dividing rules into fixed and variable, is similar to Naini's theory, but it differs from it in many ways. One of the most important differences in these two theoris is the permissible scope of human legislation and mechanism of it. Mirza Naini calls this scope "ma la nass fieh" and in the way of attributing variable laws to religion, in his opinion, it is enough that variable laws are not "definitively contrary to" fixed rules of Sharia. But Sadr calls it "mantaqato Al-faragh" and considers it "free from mandatory rules" (no ‘ma la nass fieh’); And he believes that in this area, although there is no specific text about a specific issue and there is no a direct mandatory rules regarding a specific issue, but the evidence and texts here also have hints and implications and there are general rules that legislation should be based on. Therfore, unlike Mirza Naini, who believes that there is no implications for Islamic evidences in this area, Al-Sadr believes in the general principles and general implications of the evidence in this area, and in this way he have given a role to Islamic jurisprudence in enacting of variable rules, and he believes that the system of jurists should applying two methods of inference and performing ijtihad for Islamic legislation in mantaqato Al-faragh: firstly, they deduce the principles from the religion, and secondly, they legislate according to these principles. But in the view of Mirza Naini, the Islamic jurists should only control customary legislation that is not against the Sharia and then validate its implementation.
Of course, Al-Sadr also believes in the role of the people and the customary expert in the legislative process, and he states that in addition to the role of Islamic jurists, the benefits of the society according to situations and circumstances should also be considered in the legislation. But it is clear that the legislation in theory of Al-Sadr (the combination of expertise and religion) is different from that in Naini’s theory (legislation based on custom and does not contradict Sharia rules): In Al-Sadr’s opinion, the legislation must be consistent with Islam; That is, the involvement of religion in legislation must be a procedural interference, and to achieve consistency with religion, simply creating a council and guarding after the legislative process is insufficient to ensure consistency with religious principles. Also, our article critiques this perspective.
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