Encyclopedia of Contemporary Jurisprudence - User contributions [en]

Category:Articles by Mehdi Khosravi Sereshki

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Category:Articles by Seyyed Mahdi Musavi Gorgani

2025-09-09T05:52:51Z

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Artificial Insemination from the Perspective of Jurisprudence (book)

2025-09-09T05:52:10Z

Salehi:

{{Author
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* '''abstract'''
'''Artificial Insemination from the Perspective of Jurisprudence''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%AA%D9%84%D9%82%DB%8C%D8%AD_%D9%85%D8%B5%D9%86%D9%88%D8%B9%DB%8C_%D8%AF%D8%B1_%D8%A2%DB%8C%D9%86%D9%87_%D9%81%D9%82%D9%87_(%DA%A9%D8%AA%D8%A7%D8%A8) تلقیح مصنوعی در آینه فقه])by Seyyed Mohsen Mortazavi explores the evidence and religious aspects of artificial insemination. The author acknowledges that this method is one of the common treatments for infertility.
The book aims to present the jurisprudential opinions on artificial insemination based on evidence and narrations. After explaining the subject, the book presents selected conclusions and also refers to inquiries from religious authorities. Some of the jurisprudential topics covered in artificial insemination include various types of insemination in terms of relation to religion, in-vitro fertilization, kinship rulings in artificial insemination, the issue of Iddah (waiting period), pregnant spouse’s maintenance, abortion and the establishment of blood money, transactions related to artificial insemination and the man’s right to demand offspring.
The book is divided into a preface, two sections, and a conclusion. In the conclusion, the book addresses topics not directly related to artificial insemination.
==Introduction and Structure==
Artificial Insemination from the Perspective of Jurisprudence by [[Seyyed Mohsen Mortazavi]] discusses the issue of a modern and common method of pregnancy. In this book, the author attempts to examine the evidence for the permissibility of this issue. The author claims to have presented the discussions in detail in an argumentative and jurisprudential manner using primary narrative and jurisprudential sources.
This work is organized into two sections and a conclusion. The first section presents general discussions and thematic analysis, examining the definitive ruling on different forms of [[Intrauterine|intrauterine]] and [[Alternative womb insemination|alternative womb insemination]]. In the second section, the book begins with the rulings related to [[Artificial insemination|artificial insemination]], such as lineage, proof of the Iddah, the ruling on the pregnant spouse’s maintenance, the ruling on abortion, and transactions related to insemination.
In the conclusion, the author attempts to address topics such as [[Reproductive organ transplantation|reproductive organ transplantation]], permission for medical examination in matters involving prohibited acts, and the right of husbands to demand an offspring through unconventional means.
==Issues==
The book "Artificial Insemination" aims to reflect the opinions of jurists. Therefore, each section examines and presents conclusions based on rational and traditional evidence and the fatwas of religious authorities in this regard.
===Types of Insemination===
The author considers several scenarios regarding the religious ruling on [[Artificial insemination|artificial insemination]]:
# Permission for inseminating husband's sperm with the wife's egg, provided that prohibited acts such as masturbation, touching, and seeing the private parts of a non-mahram are avoided, which become permissible in cases of necessity and urgency (p. 37-38).
# Inseminating husband's sperm and the wife's egg after the husband's death:
* If the marital bond is dissolved: The wife is not permitted to perform the ritual bath (ghusl) for the deceased husband, and vice versa (p. 39). The wife cannot be impregnated by the deceased husband (p. 42)
* If the marital bond continues until the end of the Iddah (waiting period) after death, insemination is permissible.
# Prohibition of injecting or donating a stranger's sperm into another woman's womb.
# Donating ovum in three scenarios:
* Absolute permission.
* Detailed discussion on cases where the ovum donor is the other wife of the man or a stranger.
* Absolute prohibition based on three
reasons:
* a. Based on the prohibition of having relations with an unrelated person (p.117).
* b. Contradiction with the interpretation of verses 5 to 7 of Surah Al-Mu'minun concerning the preservation of chastity (p. 118).
* c. Reliance on the declaratory rulings and the issue of attribution, which considers the ovum donor as the child's mother, not the womb owner. In this case, the child resulting from artificial insemination would have two strangers as parents who are not connected by marital relations, which is considered reprehensible and condemned in Islamic law, and is unacceptable in religious principles (p. 119).
#Prohibition of sperm insemination into an animal's womb in four scenarios:
* Annulment of the exclusivity of the prohibition regarding ejaculation into an unrelated woman's womb. The evidence for this includes the prohibition of sperm insemination into an animal's womb because it is commonly understood that what is permissible for a man regarding demanding an offspring is placing his sperm into a womb with which intimacy and intercourse is permissible (p. 120).
* The narration of Ishaq ibn 'Ammar stating the necessity of placing sperm in the designated place according to Islamic law, and the womb of an animal is not the designated place.
* Adherence to the Quranic verses regarding preserving chastity and the prohibition for a Muslim man to engage in intercourse with someone other than his wife, which also includes an animal's womb.
* It is considered reprehensible and condemned in Islamic law for a Muslim man to impregnate an animal (p. 121).
# Obtaining the egg from animals and placing it in the wife's womb is permissible based on the same premise that allows obtaining eggs from a foreign woman (p. 122).
# Obtaining Sperm from Animals and to Inseminate a Woman: Initially, the author suggests permitting this practice due to the absence of specific evidence and practical necessity. Although the narration refers to the ejaculation of a man, it is used concerning the ruling and the subject matter of its use is the Muslim woman, whose pregnancy must result from someone with whom it is permissible to have marital relations. Therefore, pregnancy resulting from animal sperm is impermissible. Furthermore, the verses from Surah Al-Mu'minun regarding preserving chastity implies that a Muslim woman must refrain from acts that harm her chastity with anyone other than her husband. Moreover, a woman's pregnancy from animal sperm is considered reprehensible and condemned in Islamic law (pp. 122-123).
#Placing a Woman’s Ovum in an Animal's Womb: There is no evidence prohibiting this action, as none of the forbidden titles apply to it. Therefore, by referring to the principles of abandoned issues permission is established (p. 124).
Placing a Plant’s Egg Cells or Sperm Cells in a Woman's Womb:
* From one perspective, it is prohibited due to conflicting with the principle of preserving chastity.
* From another perspective it is not prohibited because what harms chastity is the sperm of another man instead of the husband or an animal, whereas a plant does not possess such characteristics.
* Injecting sperm cells from a plant, which has the same functionality as sperm, into a woman's womb follows the same reasoning for preserving chastity, unless it is argued that this reasoning does not apply to plant sperm (p. 126).
# If the owner of the sperm or ovum is not identifiable, then the issue of mistaken lineage arises, which independently serves as a reason for prohibiting insemination. This is because evidence and texts in jurisprudential matters emphasize that mistaken lineage is condemned by Islamic law (p. 127). Religious principles also regard the preservation of lineage as essential and desirable in Sharia. Therefore, anything that poses a risk to lineage is prohibited by Sharia, let alone matters that invariably lead to the loss of lineage (p. 130).
===In-Vitro Fertilization (IVF)===
In this section, Mortazavi initially explains the process of fertilization and the combination of sperm and ovum outside the uterus and the transfer of the resulting embryo to the uterus (p. 142). He then discusses various aspects of this issue:
* Permission for IVF for both the wife and husband.
* In cases where the sperm of a deceased husband is used for fertilization in a laboratory and transferred to the wife's uterus, the permissibility depends on whether the marital bond remains after the husband's death. If so, it is permissible; otherwise, it is not due to the absence of marital ties. (p. 143).

# Permission for IVF and transferring the embryo into a surrogate’s uterus after the husband's sperm fertilizes with the wife’s ovum (p. 144-145).
# Permission for IVF using the husband's sperm and an ovum from a foreign woman outside the uterus and transferring it to the wife's uterus unless the criterion for motherhood is based on the ovum provider, in which case attribution becomes problematic.
# Permission for fertilization of human sperm with an animal egg outside the uterus and transferring it to the wife's uterus (p. 149).
# Prohibition of IVF using human sperm with an animal ovum and transferring it to an unrelated woman's uterus due to conflict with evidence on preserving the chastity of Muslim women.
# Prohibition of IVF using human sperm with an animal ovum and placing it in an animal's uterus due to reprehensibility.
# Prohibition of IVF using animal sperm in a human ovum and placing it in a woman's uterus who is the egg donor due to conflict with the principle of preserving the chastity of Muslim women (p. 150).
# Prohibition of fertilizing and placing a fertilized egg into the uterus of another woman who is not the owner of the egg.
# Permission to place a fertilized egg into an animal's uterus which is subject to restrictions.
# Prohibition of fertilizing an animal egg with human sperm and placing it into the uterus of a Muslim woman due to contradiction with the principle of preserving chastity (p. 151).
# Permission for the combination of human sperm with a plant egg and placing it into the wife's uterus.
# Prohibition of placing a plant egg fertilized with human sperm, into an unrelated woman's uterus.
# Prohibition of fertilizing a human egg with animal sperm and placing it into an animal's uterus due to the necessity for men to obtain their offspring in the correct way and the contradiction with preserving a Muslim man's chastity (p.152).
# Prohibition of placing a fertilized egg resulting from the combination of sperm and a plant egg into a woman's uterus due to contradiction with the basis of preserving chastity, although the verse on preserving chastity might exempt this case, encompassing only human or animal sperm.
# Prohibition of placing fertilized ovum resulting from animal sperm and a plant egg into a woman's uterus due to it not being her husband’s sperm and due to the failure to preserve chastity.
# Permission to place sperm resulting from fertilizing a plant egg with animal sperm into a woman's uterus (pp. 153-154).
===Fertilization in Artificial Womb===
The book "Artificial Insemination from the Perspective of Jurisprudence " also considers various aspects of this issue:
# Permission for fertilization of the husband's sperm with the wife's egg in an artificial uterus without considering the prohibitions and prerequisites of its haram (forbidden) aspects.
# Permission for fertilization of a man's sperm with an unrelated woman's egg in an artificial uterus (p. 159).
The author then examines the evidence presented by proponents of the prohibition of this practice, stating that the prohibition of placing a foreign man's semen in a woman's uterus is not materialized here, as growth and development occur in the artificial uterus. The author mentions another aspect of prohibition in this matter, which is acting against the preservation of the chastity of the believing man and woman. However, since no action against the preservation of chastity occurs, the author does not consider this aspect to be correct (p. 160).
In the final argument, the author attributes the prohibition of the birth of a child from the fertilization of sperm and ovum of two strangers outside the uterus to the societal abhorrence of it, which is the basis for its non-acceptance by the religious principles. However, he claims that this aspect does not apply universally and according to all-inclusive criteria. This lack of universality is contingent upon whether the criterion for motherhood is the egg owner; in which case, it may be subject to the prohibition arguments, but if the criterion for motherhood is the owner of the uterus, the child born in the artificial uterus has no mother. Furthermore, religious abhorrence is not applicable in all cases; it is only in cases where, based on the criterion of motherhood, the woman providing the egg is considered the mother and is a blood-relative of the man and causes multiple relative titles, otherwise, the abhorrence is not established (p. 161).
===Examination of Kinship Rulings and Its Appendices===
The author has addressed the issue of paternal attribution in artificial uterus insemination in several scenarios while explaining the rulings of kinship relations in artificial insemination:
# Attribution from paternal lineage is a matter of customary understanding, where the development [of the embryo] is considered from the man's semen and sperm, but whether this development occurs through sexual intercourse is not a criterion in the concept of fatherhood (p.184).
# A scenario in which a child conceived from the semen of an unrelated man or through insemination into an artificial uterus and then transferred to a woman's uterus may be permissible in terms of the defining law, such as cases of mistake or uncertainty, or may be prohibited. However, in both cases, the child is considered to be attributed to the man to whom the sperm belongs according to custom, and there is no religious barrier to attribution. In the case of permissible insemination, religious barriers are removed, and the child is attributed to the sperm owner, while in the case of prohibited insemination, it is not considered adultery and does not result in the denial of inheritance (p. 192).
# Artificial insemination with non-human sperm, whether animal or plant, whether inside or outside the uterus, results in a child whose paternity is not identifiable because there is no father.
# If a non-sexual human cell is extracted and combined with a woman's egg through simulation processes and a child is born, attribution is negated because the concept of fatherhood, both customarily and legally, is derived from the formation from sexual cells and sperm (p. 193).
#
'''Adoption''' is another aspect that the author has examined assuming the negation of the legal attribution of the father and mother in the context of artificial insemination. He considers three scenarios:
* A married woman becomes pregnant through the injection of sperm belonging to someone other than her husband.
* A child is born from the sperm of the husband and in the uterus of his wife, but the method of fertilization was artificial insemination and not intimacy.
* Choosing a child for adoption where there is no legal or customary attribution to a father, such as a child born through simulation or extraction of non-sexual cells, in an artificial uterus in a laboratory, or born from animal or plant sperm. In all three cases, legal and customary attribution of the child to a father is not possible; however, is adoption possible in all three cases, or not? Although adoption is generally prohibited in Islam, regarding the three mentioned situations (p.213), in the first case, where the sperm belongs to another person, adoption is forbidden, and it is a definite prohibition against adoption. In the second and third cases, since the verse refers to a child who has a real father and legal lineage, and in these two cases, there is no real and legal father at all, therefore, the evidence of the prohibition of adoption and attribution to someone other than the father does not apply (p. 216).
'''Inheritance of a child born through artificial insemination''' is another issue that the author has addressed under the topics related to kinship laws. He argues that even if the legal attribution of the father and mother is accepted, and the legal effects and consequences thereof apply, in cases of artificial insemination that are done through illegitimate methods, inheritance is negated (page 217).
In the case of using frozen sperm from a deceased husband for insemination of the wife, the child born from this process is not entitled to the inheritance because one of the conditions for inheritance is that the heir must be born before the death of the deceased (p. 219).
===Examination of Iddah (Waiting Period)===
The author initially emphasizes that the ruling for each case should be examined separately, considering various scenarios such as unmarried women, married women, those in the waiting period, etc.
In the first scenario, artificial insemination implies a waiting period in the case of a married woman, where various possibilities can be considered: if she becomes pregnant through artificial insemination with her husband's sperm and then seeks divorce from him, in this case, according to the evidence, a waiting period is established for the pregnant woman (p 222).
In the second scenario, if the husband's sperm is placed in the wife's womb through artificial insemination but conception does not occur, two possibilities are assumed: first, a waiting period is not necessary since the evidence for it in divorce is conditional on penetration and intimacy, which have not been realized in this case (p. 222). In the second possibility, a waiting period is necessary for the woman because other narrations emphasize that the presence of semen leads to a waiting period, regardless of whether it occurs through penetration or otherwise (p. 224). After presenting these two possibilities, the author concludes by stating that the reconciliation of these two narrations represents the duality of the multiplicity of conditions and unity of punishment, and each of these conditions is a non-exclusive cause, meaning that whether through intimacy or discharge of semen, the waiting period is established (p. 225).
The third scenario concerns the insemination of a woman's womb with sperm from a man other than her husband through artificial insemination. In this case, it is questioned whether the waiting period with respect to her husband is required or not (p. 226). After examining the opinions of jurists, the author concludes that this case could be considered as falling under the category of having intercourse with someone other than one’s spouse accidentally or unknowingly, as the discharge of semen itself is considered independently to establish the waiting period. Hence, whether the insemination of a woman with a foreign man's sperm occurs mistakenly and is permissible, or it is done unlawfully and intentionally, it does not revoke the waiting period of the woman towards her husband (p. 231).
The fourth scenario presented by the author involves placing a man's sperm in the womb of his sister-in-law, mother-in-law, or stepdaughter. In this case, it is questioned whether the wife should maintain a waiting period towards her husband after artificial insemination. After examining the opinions of jurists, it is concluded that according to the requirement of the narration that states that the waiting period is due to ejaculation, the sister-in-law and mother-in-law, who have been inseminated, should maintain the waiting period, and consequently, the wife should also maintain a waiting period (p 236).

In the fifth scenario, the author discusses artificial insemination with a foreign man's sperm into a married woman who has been divorced by her husband (p. 237). In this regard, he argues that the waiting period for a divorced woman is established upon her state of pregnancy, therefore, the application of the rules regarding the waiting period for the divorced woman extends to three menstruation cycles or three months, which includes this case as well (p. 238).

Mortazavi further discusses other instances of artificial insemination, specifically addressing the performance of this procedure in the womb of an unmarried woman. He argues that the waiting period is obligatory for her, and the regulations of marriage apply to her during this period (p. 239).
Another scenario that the author mentions is artificial insemination of a woman who is in the waiting period. In this case, two assumptions are made: first, if the husband's sperm is inseminated during the waiting period, and second, if insemination with sperm from a man other than the husband occurs. In the first assumption, the waiting period is established (p. 240). However, t whether a new waiting period should be observed if the woman does not become pregnant during her initial waiting period is a subject of debate. if the woman becomes pregnant, her waiting period will be the duration of her pregnancy. If she does not become pregnant, the waiting period is calculated from the beginning of the insemination process (p. 241).
===Pregnant Woman's Maintenance===
Mortazavi also examines the ruling regarding the maintenance of a pregnant woman, addressing various scenarios related to artificial insemination:

Cases Where Payment of Maintenance is Obligatory:
* If the wife is inseminated with the husband's sperm, maintenance must be provided until the end of the marriage and the birth of the child (p.244).
* During the waiting period after a revocable divorce until the end of the pregnancy (p.245).
* The husband must provide maintenance to a pregnant woman inseminated from the sperm of another man if she is to not maintain the waiting period towards him, and he has the right to enjoy marital relations (p.253).
* If the pregnancy and the child are attributed to him, the man who provided the sperm is obligated to provide maintenance (p.254).
* The sperm owner must provide maintenance to a single pregnant woman (p.255).
*
* Cases Not Requiring Maintenance:
* If the husband passes away during the pregnancy (p.251).
* A pregnant woman who undergoes artificial insemination due to the annulment or dissolution of her marriage from her husband, it is not obligatory to provide maintenance according to the principles and rules of maintenance (p.254).
* In cases where the waiting period is proven from the husband, and there is no right to enjoy marital relations, as it is similar to a disobedient wife, and the woman has knowingly and voluntarily consented to the insemination with the sperm of another man (p.255).
===Abortion of Embryo and Fetus and Establishment of Diyah===
The ruling regarding the abortion and of embryos and fetuses resulting from artificial insemination is considered prohibited in all cases, whether concerning artificial insemination of a wife with the husband’s sperm (p.256), or in the case of attribution to the man who provided the sperm (p.263), or in the case of a woman who has a fetus attributed to her through an egg but not attributed to her husband. This ruling also applies to a woman and a man who have no relationship (p.264).
===Transactions Related to Artificial Insemination===
The author then refers to three pillars of artificial insemination, which are sperm from a man, egg from a woman, and the uterus of a woman, in terms of transactions in these cases:
Permission for buying and selling of male sperm (p.265 and 266).
Buying and selling of eggs, which depends on the basis of the definitive ruling:
* If the usage of a foreign woman's egg is considered forbidden, its benefit is canceled by the religious prohibition.
* If one believes in the permission to use a foreign woman's egg and considers the owner of the uterus as the mother, then the benefit of childbearing exists, and the transaction is permissible (p.270).
* If the criterion for motherhood is the owner of the egg, buying it does not benefit the woman because the child is not attributed to her, and the egg has no ownership. However, for obtaining money, it is better for the transaction to be in exchange for relinquishing the right to ownership (p.270).
The uterus is considered as leased, and formal contracts for it are now used (p.271).
===Transplantation of Reproductive Organs===
Although the author acknowledges that it is not yet widespread, he believes that the dynamic jurisprudence of Shia Islam should define its position on this matter. After presenting four issues and their answers, he concludes that the reason for the permission of transplantation is the same general evidence that allows the absolute permission of organ transplantation (p.318).
[[fa:تلقیح مصنوعی در آینه فقه (کتاب)]]
[[category: book review]]
[[category: books by Seyyed Mohsen Mortazavi]]

Category:Articles by Hassan Ali-Abadi

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Basic Rights and the Foundations of the Constitution of the Islamic Republic of Iran (Book)

2025-09-09T05:46:24Z

Salehi:

{{Author
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* '''abstract'''
'''Basic Rights and the Foundations of the Constitution of the Islamic Republic of Iran''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%AD%D9%82%D9%88%D9%82_%D8%A7%D8%B3%D8%A7%D8%B3%D9%89_%D9%88_%D9%85%D8%A8%D8%A7%D9%86%D9%89_%D9%82%D8%A7%D9%86%D9%88%D9%86_%D8%A7%D8%B3%D8%A7%D8%B3%D9%89_%D8%AC%D9%85%D9%87%D9%88%D8%B1%D9%89_%D8%A7%D8%B3%D9%84%D8%A7% حقوق اساسى و مبانى قانون اساسى جمهورى اسلامى ایران]), is the title of the first volume in the [[Ten-volume series "Political Jurisprudence,"|ten-volume series "Political Jurisprudence,"]] authored by [[Abbasali Amid Zanjani]], a mujtihid, legal scholar, and political science researcher. In this work, he initially clarifies the foundations of basic rights from both legal and occasionally jurisprudential perspectives, and subsequently elaborates on these foundations in the context of the Constitution of the Islamic Republic and Shia political jurisprudence. He asserts that the establishment of government and state is permissible without the presence of an infallible Imam and considers [[Vilayet-e faqih|vilayet-e faqih]] as the ultimate expression of the Islamic jurisprudence. According to him, in the Islamic Republic system, which is composed of the [[Principles of republicanism and Islamism|principles of republicanism and Islamism]], the sovereignty of God and the people converge, and vilayet-e faqih can coexist with democracy and reliance on public votes.

In his view, vali-ye faqih possesses not only the authority to issue fatwas, adjudicate legal and non-litigious matters, and oversee Muslim community affairs, but also holds additional religious powers such as enforcing legal penalties and executing religious rulings (related to marriage, property ownership, sighting of the lunar crescent, and management of assets and individuals). According to him, Allāmeh Narāghī, grand Mirzā Shīrāzī, Mirzā Muḥammad Taqī Shīrāzī, Kāshif al-Ghitā, Allāmeh Nā'īnī, and Imam Khomeini are among the later Islamic jurists who affirm that all aspects of the Prophet Muhammad's authority apply to a fully qualified faqih.
==Significance of the book==
"Basic Rights and the Foundations of the Constitution of the Islamic Republic of Iran", is the title of the first volume in the ten-volume series "Political Jurisprudence," authored by Abāsalī ʿAmīd Zanjānī. The significance of this volume lies in the fact that over the past one hundred and fifty years, the involvement of Islamic jurists in Iran's political scene and their subsequent rise to power in the Islamic Republic of Iran has made the topic of [[Political jurisprudence|political jurisprudence]] within Shia thought as well as the sovereignty of God and people ([[Islamic jurisprudence and Law]]) , particularly the theory of the Guardianship of the Jurist (velayet-e faqih) as manifested in the Islamic Republic of Iran and its constitution, a subject of ongoing discussion and critique. Scholars who support and are interested in this political domain continue to contribute their writings. The third edition of the first volume of the book was published in 1992 after a review of the Constitution of the Islamic Republic (1989) and includes a new introduction and revisions by the author.
===The author ===
Amid Zanjani (1937 - 2011) the author of the book, was a mujtihid, university professor, and political science researcher. He studied in the religious seminaries of Qom and Najaf under prominent scholars such as [[Seyyed Ḥossein Burujerdi]], [[Seyyed Ruhullah Khumeini]], [[Seyyed Abul-Qasem Khuei]], and [[Seyyed Mohsen hakim]]. The ten-volume series on political jurisprudence, is his well-known work in political jurisprudence, which has been reprinted multiple times. He also had experience in the political arena, having served as a representative in the Islamic Consultative Assembly and the Assembly of Experts.
==Book Structure==
The first volume of the book on political jurisprudence consists of an introduction and two main parts. In the introduction of the third edition (from the compilation of political jurisprudence to the establishment of the Islamic political system), the author briefly explores the history of political jurisprudence within Islamic thought and examines several specific proposals made a century prior to the Islamic Revolution. The author begins the text by addressing the general principles of the basic rights (the first part contains seven chapters) and subsequently discusses the foundations of the Constitution of the Islamic Republic of Iran (the second part comprises ten chapters).

In the first chapter of the first part, the position, definition, and perspectives on basic rights are discussed. The subsequent two chapters focus on the government, its components, and classifications. The final four chapters examine the foundational structure of the government, institutions, and governing powers, particularly the legislative, executive, and judicial branches. In the first chapter of the second part,ʿAmīd Zanjānī references the Tobacco Movement, the assassination of Naser al-Din Shah, and the Constitutional Revolution, providing a historical account of the drafting of the constitution in Iran along with an analysis of the contents of the constitutional law. He then addresses the victory of the Islamic Revolution, the referendum for the Islamic Republic, the drafting of the first constitution of the Islamic Republic, and its revision (in which he was a member of the revision council).
The subsequent chapter, examines the characteristics and general principles of the Islamic Republic of Iran's system, followed by a discussion in the third chapter on the sovereignty as outlined in Iran's constitution. Chapters four through eight elaborate on the governing powers and institutions (including the legislative, executive, and judicial branches, as well as political and judicial bodies). The ninth chapter focuses on the economic foundations of the Islamic Republic of Iran, and the concluding chapter addresses fundamental rights and freedoms as defined in Islam and the constitution of the Islamic Republic of Iran.
==The significance of velayet-e faqih in the political system==
In the first volume of his "political jurisprudence", ʿAmīd Zanjānī examines the significance and function of velayet-e faqih, the relationship between the people and the system based on velayet-e faqih, and the responsibilities of vali-ye faqih. His objective in presenting these discussions appears to be a defense of the theory of velayet-e faqih and the related system.
===The implementation of an Islamic government under the system of Velayat-e faqih (guardianship of the Islamic jurist)===
In the introduction to the third edition, the author briefly discusses several theories and specific proposals from both supporters and opponents of Islamic governance within Shia and Sunni perspectives. He begins with the ideas of ‘Alī ‘Abd al-Razzāq Misrī and his book 'Al-Islām wa uṣūl al-ḥikmah', which advocates for the political secularism. He then presents the thoughts of Muḥammad ibn ʿAbd al-Wahhāb, which were transformed into a political theory by the House of Saud. Finally, he addresses the Constitutional Revolution and highlights the efforts of scholars such as Ayatollah Nā'īnī in his work 'Tanbīh al-Ummah wa Tanzīh al-Millah.' In conclusion, the author, who is an admirer of Imam Khomeini and the theory of Velayat-e Faqih, refers to his book "Velayat-e Faqih" and the implementation of this theory within the Islamic Republic of Iran. He emphasizes that 'without a doubt, the line of Velayat-e Faqih and the Islamic Republic is the pinnacle of the application of political jurisprudence and the peak of authentic Islamic movements, representing the success of all political Islamic thoughts to date.' (p. 23)
===The authorities of the guardian jurist (vali-ye faqih)===
ʿAmīd Zanjānī asserts that few Islamic scholars have questioned the legitimacy of the four authorities granted to a just Islamic jurist, namely, the authority in issuing fatwas, judicial authority, oversight of Muslim affairs, and authority in adjudicating non-litigious matters (p. 259). However, there is no consensus among Islamic jurists regarding broader powers such as the enforcement of legal penalties, executing religious rulings (including marriage, property ownership, sighting of the lunar crescent, and management of assets and individuals). According to Amid, among contemporary jurists, Allāmeh Narāghī, Grand Mirzā Shīrāzī, and Mirzā Muḥammad Taqī Shīrāzī, as well as Kāshif al-Ghitā and Allameh Nā'īnī, all affirm that the Prophet's responsibilities are applicable to Islamic jurists, a point also referenced by Imam Khomeini (p. 262).

According to the author of the book, one of the reasons for the potential revision of the constitution is the ongoing and active interpretation by Islamic jurists (p. 214). He defines the role of the Islamic jurist's authority in the constitution as a direct and practical intervention, asserting that this authority is a continuation of the emergency and representative authority of the infallible during the period of occultation. To safeguard the sovereignty of the people, the constitution includes various mechanisms of control to prevent abuse within the Islamic Republic system (p. 217).
=== The Islamic nature of a non-infallible government (vali-ye faqih)===
The writer dismisses the idea that an Islamic government must be led by an infallible and divinely appointed figure, asserting that such a belief is contrary to the teachings of the Quran, Islam, and rational thought (p. 197). To support this claim, he presents rational and Islamic arguments for the establishment of government, emphasizing that a republic can indeed be Islamic. Consequently, after monotheism, revelation and prophetic missions, divine justice, the dignity and high value of individuals, the most significant principle is the leadership (Imamate), which is further sustained through ijtihad and the guardianship of a fully qualified Islamic jurist, forming the foundation of the Islamic Republic system.
In the chapter on governance within the Constitution (Chapter Three, part Two), the discussion of God's absolute sovereignty, national sovereignty, and velayat-e faqih is revisited. It emphasizes obedience to the just vali-ye faqih during the occultation, acting on behalf of the rightful leader, alongside obedience to the Prophet and the infallible Imam, as one of the three means of obeying God (p. 252).
According toʿAmīd Zanjānī, when the people accept the Islamic government, they also accept the authority and oversight of the Islamic jurist, and this reflects the democratic nature of the system (p. 221).
==Basic rights in the Islamic thought==
According toʿAmīd Zanjānī, unlike the evolutionary and Darwinian perspectives of Western philosophers and legal scholars, basic rights should be founded on a comprehensive and philosophical understanding of man and society, ensuring it does not hinder individual growth while encompassing social evolution and collective progress (p. 45).

He believes that basic Islamic rights are based on the Islamic view of humanity and are extracted from the legal rules of Islamic jurisprudence regarding governance and the people. Therefore, unlike the Western perspective, neither the government nor the individual holds intrinsic value; however, the government, despite its extensive powers and authority, must ensure the maximum rights and freedoms for individuals (p. 45).
The author asserts that, in the Islamic Republic system, the end may never justify the means, and all methods, tools, and approaches must align with the principles of the ideology and be consistent with its objectives (p. 210). Furthermore, ensuring that laws conform to Islamic standards is a significant responsibility of the Islamic Republic government.ʿAmīd Zanjānī believes that the application and generality of the terms and concepts presented in the constitutional principles (such as: the people, all members of the nation, access to social security, press, political parties, and freedom) should be defined in line with Islamic standards (p. 214).
===The origin and basis of the legitimacy of basic rights===
As described by the author, in a monotheistic system, God is the sole source of basic rights and the origin of legitimacy and obedience to the law, exercising His sovereignty through legislative means and human will (p. 50-51). In his view, there is no effective and direct enforcing guarantees for each of the four sources of basic rights as perceived by legal scholars (1. the constitution, 2. ordinary laws, 3. traditions and social customs, 4. decrees and orders of the head of state), particularly against military coups or popular revolutions (p. 61).
==The coexistence of republicanism and Islamism in the Islamic Republic==
Among the theories of political legitimacy, the author considers the theory of divine sovereignty through the free will of the people to be valid (p. 68) and believes that in Western law, the subject of sovereignty and even the theory of democracy remains a topic of debate and criticism, having proven to be unsuccessful, reducing to mere a slogan and a facade (p. 77). From his perspective, in monotheistic thought, the source of sovereignty is longitudinally delegated from God to humanity, and the sovereignty of God, along with that of the Prophet, Imam, and Guardian Jurist, is exercised through public opinion (pp. 79 and 254).

Seeking to propose a theory on the possibility of reconciling republicanism with Islamism,ʿAmīd Zanjānī outlines the history of constitutional development in Iran from the Constitutional Revolution to the first and second (revised) constitutions of the Islamic Republic of Iran, and distinguishes the type of republic government in Iran from other similar governments. According to him, the term 'republic' signifies a democratic form of government in which the populace has the right to determine their own destiny (p. 193), while the term 'Islamic' reflects the content of that system (p. 196).

ʿAmīd Zanjānī considers reliance on public opinion to be a characteristic of the Islamic Republic, grounded in Article 8 of the Constitution (the call to goodness and the promotion of virtue while discouraging vice) in order to distinguish it from deviated and irrational public sentiments (p. 218). In this discussion, he addresses the issue of the authenticity of votes versus divine revelation, responding to the concern regarding the potential idolatry in aligning the legitimacy of the Islamic jurist's authority and reliance on public opinion, citing the Prophet's two instances of pledging allegiance from the people as evidence (p. 220).

In his view, the role of the people and reliance on public opinion is reflected in the electoral and council system; however, this council system does not imply that all issues should be confined within its framework, nor should it serve as a means to undermine other principles and foundations of the Islamic government. Furthermore, the council system should not be confused with resorting to the public opinion and adherence to the majority (p. 226). ʿAmīd Zanjānī considers the final stage of public oversight to be enjoining good and forbidding wrong (p. 229).
==Islamic interpretation of freedom==
The writer claims that absolute freedom results in disorder and the infringement of social commitments, making social constraints essential (p. 574). ʿAmīd believes that the Quran describes freedom within the framework of monotheism, emphasizing human's commitment to God's commands and the outright rejection of obedience to anyone other than God (p. 576). He believes that in the Islamic concept of freedom, rationality plays a crucial role, and individuals are not free to engage in irrational actions or thoughts (p. 577). Furthermore, the principle of presumption of innocence is a fundamental aspect of Islamic jurisprudence, which states that any person charged with an offence has the right to be presumed innocent until proven guilty, and a competent court ruling is required to declare someone guilty (p. 580).

Referencing open-mindedness and the breadth of Islamic thought,ʿAmīd Zanjānī addresses the issue of freedom for religious minorities and non-religious groups in the Islamic Republic, while avoiding prejudice and concern regarding this matter (p. 237).
===Political and territorial independence===
The author of the book discusses human political independence in the context of freedom. He believes that, from an Islamic perspective, freedom signifies liberation from domination and the rejection of dependence on falsehood, malevolent forces, and obstacles to human development, which is also the philosophy behind the prophets' mission (p. 234). Therefore, political independence is achieved when an individual is freed from the control of evil forces and is not reliant on them (p. 235).

From the author's perspective, territorial integrity does not imply the division of nations or the categorization of individuals based on shared ideals and beliefs. Instead, the Islamic homeland (referred to by jurists as 'Dar al-Islam'), encompasses all lands inhabited by Muslims that seek the governance of Islam. Therefore, territorial integrity comprises two distinct aspects: the political aspect (which includes the sovereignty of the Islamic state and the independence and freedom of the Muslim community), and the legal aspect (which pertains to the territorial domain and ownership of the Islamic state) (P. 245).

ʿAmīd Zanjānī discusses the formal characteristics of the system (language, script, history, flag), stating that Islam not only does not hinder the preservation of valuable and unifying cultural heritages of nations, but also prohibits the destruction of such legacies (p. 245).
[[fa:حقوق اساسى و مبانى قانون اساسى جمهورى اسلامى ایران (کتاب)]]
[[category: book review]]
[[category: books by abbasali amid zanjani]]

Category:Articles by Mahdi Khosravi Sereshki

2025-09-09T05:43:53Z

Salehi:

[[category: Articles by authors]]
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Category:Articles by Mahdi Khosravi Sereshki

2025-09-09T05:43:09Z

Salehi: Created blank page

Turning Jurisprudential Rules into Law

2025-08-28T09:17:10Z

Salehi:

{{Author
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* '''abstract'''
'''Turning jurisprudential rules into law''' or '''legislating [based on] the Sharia''' is considered of the necessities of governance in the contemporary era in Islamic societies. In this process, jurisprudential rules take the form of law, and governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined for them. Shia and Sunni scholars are more inclined to permit turning jurisprudential rules into law with certain conditions, and in some cases, they even consider it necessary in the current era. Conversely, some jurists believe that it is not permissible to turn jurisprudential rules into law; because, according to them the laws of Islam are clear and enforceable and there is no need to re-legislate them. In addition, some do not allow the turning of non-controversial rulings of Sharia into law; but in the area of conflicting rulings, they have left it to legislative institutions to choose one opinion.
Converting jurisprudential rules into binding laws based on the theory of permissibility has certain conditions and requirements, the non-observance of which undermines the effectiveness of jurisprudence for the administration of society. Among these conditions are the adoptions of fatwas in accordance with the principle of justice, paying attention to fatwas that create efficient laws, explicitness of the words of the law that is derived from jurisprudence, giving authenticity to the law against the fatwa, and avoiding uncommon statements and fatwas. Jurisprudence researchers have also listed obstacles for turning the Sharia into law, which include lack of a governmental perspective on jurisprudence, differences between fatwas and the plurality of authorities, and the uncertainty of the standard fatwa.
==Explanation of the issue, its status and importance==
Turning the Sharia or jurisprudence into an enforceable law and the reflection of jurisprudence in approved laws is one of the areas of legislation in Islam that attracted the attention of religious thinkers, jurists and lawyers with the introduction of the concept of law into the Islamic world.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, p. 173.</ref> According to researchers of law, Islamic jurisprudence was turned into law in the face of the new world for the purpose of continuation of jurisprudential rules in the contemporary society.<ref> Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, p. 158.</ref> They believe that turning jurisprudential rules into legally binding laws is of the necessities of governance in the contemporary era in Islamic societies <ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 100; Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 31.</ref>, and that the rule of law requires that all the affairs of the society be based on general and public laws and rules, based on which people can enjoy their rights and duties. Also, governmental affairs should be implemented through the law, and arbitrariness and aggression should be prevented.<ref>Hāshimī, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 3, p. 133.</ref>
Before the Constitutional Revolution of Iran, conversion of the rules of Sharia into law first began in the territory of the Ottoman Empire with the compilation of collections such as the Basic Law (Constitution of the Ottoman Empire) and the Mecelle-i Ahkām-ı Adliye (the Mecelle)<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, pp. 36 and 38.</ref> and was followed in other countries such as India, and Iran during the Constitutional era and the Islamic Republic through compiling laws such as the Civil Law.<ref>Amīn, Tārīkh-i Ḥuqūq-i Iran, p. 542; Kāẓimī, Qānūn-i Madanī yā Fiqh-i Farsī: Jastārī dar Manābi‘ va Sākhtār-i Qānūn-i Madanī-yi Iran, pp. 256-259.</ref> <ref>Kātūzīyān, Ḥuqūq-i Madanī: Qavā‘id va Qarārdādhā, p. 232.</ref> In the Islamic Republic of Iran, jurisprudential rules have turned into law in various constitutional, civil, criminal and commercial areas.<ref>‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 726.</ref>
Jurisprudential rules are turned into legally binding laws with the aim of creating a guarantee of implementation for them.<ref>Mamḥaṣānī, Falsafi-yi Tashrī‘ dar Islām, p. 343.</ref> According to religious researchers, mere compliance with Sharia does not guarantee the implementation of Sharia rulings. Therefore, it is necessary for Sharia rulings to find a legal form so that the government, in addition to the existing Sharia requirements, would introduce them as its wishes and take on the responsibility to comply with them.<ref>Kāfī, Ta‘yīnāt-i Ijtimā‘ī-yi Fiqh va Qānūn, p. 70.</ref> Also, about the necessity of turning the rules into law, it has been said that since jurisprudence lacks subjectology and suffices with stating the rules, in order to adapt jurisprudential rulings to social realities, we need to turn these rulings into law.<ref>Abulḥasanī and Fattāḥī, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, p. 31.</ref>
===Challenges===
Converting the rules of Sharia into enforceable governmental laws faces questions and challenges. These questions include: What is the nature of this type of legislation? Does the Sharia allow such legislation despite the existence of jurisprudential books and practical treatises? Do legislative institutions such as the parliament have the authority to convert the rules of Sharia into law? In case of permission, can every rule of the Sharia be turned into a law, and is the government responsible for the implementation of all obligations and prohibitions? Can private relationships between individuals, such as employee-employer relationships and giving the right to divorce to women, be converted to public laws? In the transition from jurisprudence to law, what is the role of public interests and the goals of the Islamic government? What are the requirements and conditions of converting the Sharia into law? What obstacles are there in the way of this type of legislation? Some of these questions and challenges have been addressed in the interaction between jurists and lawyers and in jurisprudential researches.
==Conceptology==
The conversion of Sharia into law, which is also referred to as legislating [based on] the Sharia, is the process through which the orders of Islamic Sharia and jurisprudence take the form of law, for which governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined.<ref>Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 159-160.</ref> Converting Islamic jurisprudence into law has been considered as a process by which jurisprudence leaves its traditional form and becomes classified into topics and sections and exhibits itself in the form of articles, clauses and notes, and the result will be the use of jurisprudence by the entire society, not only by jurists.<ref>Qarḍāvī, Madkhal lil-Dirāsat al-Sharī‘ah al-Islāmīyyah, p. 297.</ref> Qarḍāvī, a Sunni jurist, has also defined converting jurisprudence into law as codifying jurisprudential rules in the form of legal articles hierarchically, with a certain order, and in the style of new laws<ref> Qāsim, Al-Islām va Taqnīn al-Aḥkām, p. 73.</ref>. In this regard, it has also been said that conversion of Sharia into law means that the rules of Sharia should be codified into orderly and legal phrases and articles, so that the ruler can issue mandatory orders based on them.<ref>Ismā‘īlī and Mīrluḥī, Āthār-i Pazīrish-i Qā‘idi-yi Nafy-i Khulv dar Niẓām-i Qānūnguḏārī-yi Iran, p. 78.</ref>
===Methods of converting the Sharia into law===
Converting the Sharia into law has been depicted in three methods:
Considering practical treatises as law and obliging people to comply with them: This method presupposes that the rules of Sharia are comprehensive and that the rules of Islam respond to all human needs.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 175-176.</ref>
Converting the issues mentioned in jurisprudence books into modern laws: This method is more commonly used today, and in cases where the Sharia is silent, the parliament has made legislations.<ref>Ka‘bī, Mabānī-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, p. 122.</ref>
Legislation based on ijtihad: Those who support systematization and government jurisprudence consider this method to be suitable for converting the Sharia into law and believe that laws should be formulated based on systematic ijtihad, its results, and the needs of the Islamic government.<ref>18. Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 46; Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 185 and 191.</ref>
==Points of view==
Shia jurists have presented several opinions about the permissibility or impermissibility of converting the rules of Sharia into law.
* Most Shia and Sunni scholars tend to permit converting the rules of Sharia into law, and in some cases, they have even considered it necessary and beneficial in the current era; because, in this way, the power of the government is used to implement the regulations of Islam.<ref>Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, p. 345; Ibid, vol. 2, p. 84.</ref> They believe that man does not have the right to invent laws due to lack of complete awareness of his interests and harms. However, the necessities of life require him to codify Islamic rules in the form of common human laws. They call the conversion of jurisprudential rules into law as a form of informing all the people about the rules of Islam and they believe that such work will make the rules of Sharia more efficient and effective.<ref>Ṣadr, Lamḥah Fiqhīyyah Tamhīdīyyah ‘an Mashrū‘-i Dastūr al-Jumhūrīyyah al-Islāmīyyah fī Iran, pp. 22-23.</ref> According to Sayyid Mohammad Bāqir al-Ṣadr, a contemporary jurist, religious rules are either definitive, about which there is no jurisprudential difference of opinion and which are included within the text of law, or are part of the jurisprudential rules about which there is some controversy, and the legislative power is in charge of choosing one opinion.<ref>Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 188-189 and 191.</ref>
* On the other hand, some jurists did not consider converting the Sharia into law to be permissible; because in their opinion, the laws of Islam are clear and enforceable and there is no need to re-legislate them. Also, since the members of parliament are non-jurists, they are not allowed to do so.<ref>Idāri-yi Kull-i Umūr-i Farhangī-yi Majlis-i Shūrā-yi Islāmī, Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 1, p. 409.</ref> In the final assembly of the review of the Constitution of the Islamic Republic of Iran, some jurists such as Luṭfullāh Ṣāfī Gulpāygānī pointed out that the conditions of religious rules, such as enjoining what is good and forbidding what is evil, are specified in the Sharia. Therefore, they believe that it is no longer necessary to require the law to determine conditions and limits for their implementation.<ref>Nā’īnī, Tanbīh al-Umma va Tanzīh al-Millah, pp. 135-138.</ref>
*Amid the above two views, there are jurists such as Mīrzā Nā’īnī who consider the competence of the legislative body to be limited to variable rules that are subject to the interests and requirements of the time. They believe that the parliament does not have the authority to confer on legislation about the fixed rules of the Sharia.<ref>Muhammadī Karajī, Ilzām Āvarī-yi Sharī‘at Qabl az Taqnīn yā Tadvīn va Rābiṭi-yi ān bā Aṣl-i Ḥākimīyyat-i Qānūn, p. 177.</ref> In this regard, it is said that the explicit and definite rules of the Sharia, about which there is no considerable disagreement among jurists, are enforceable and there is no need for legislations about them.<ref>Ka‘bīnasab and Muhammadī Karajī, Barrisī-yi Ṣalāḥīyyat-i Majlis-i Shurā-yi Islāmī dar Taqnīn-i Aḥkām-i Shar‘ī, pp. 72 and 86.</ref> However, there are no limitations or prohibitions on making laws about indeterminate and controversial rules, in order to determine the duties of people and the government.<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, pp. 103-105.</ref>
==Obstacles==
Religious researchers believe that the conversion of jurisprudential rules into law faces certain obstacles, the most important of which are the absence of a governmental view on jurisprudence, the difference of fatwas and the plurality of authorities, the change of fatwas based on the conditions of time and place, and the uncertainty of the standard fatwa.
An individual view on jurisprudence: The predominance of an individual view in explaining jurisprudential rules and determining the duties of individuals without considering their collective identity by the jurist have been mentioned among the obstacles to converting the rules [of Sharia] into law. According to Ahmad Hājī Dihābādī, a researcher in Islamic law, due to the creation of some ambiguities when issuing a rule and implementing it, it is necessary to avoid to reflect, in the law, those rules that are written with an individualistic jurisprudential attitude. Moreover, a governmental approach to jurisprudence is required to convert jurisprudential rules into law.<ref>Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 92-93; Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 105.</ref>
The difference of jurisprudential fatwas: Adapting the approved laws to Islamic standards and regulations is one of the conditions for the correctness of legislation in the Islamic government. However, if there are different fatwas on one issue, which of them becomes the criterion for legislation? This is considered an important challenge and of the obstacles to converting jurisprudential rules into law.<ref>Samāvātī and Mūsavī Bujnūrdī, Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī …, pp. 43-58; Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 95-101.</ref> The fatwa of the ruling jurist, the fatwa of the most knowledgeable Mujtahid (expert in islamic jurisprudence), the fatwa of jurists of the Guardian Council, the efficient fatwa, the fatwa according to caution and the well-known fatwa are among the solutions to this challenge that have been presented by researchers.<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.</ref>
==Conditions and requirements==
Based on the theory of permissibility, the conversion of jurisprudential rules into binding law has certain conditions and requirements, the non-observance of which will cause disruptions in the legislative process and damage to jurisprudence and law. It will also undermine the effectiveness of jurisprudence for the administration of society.<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.</ref> Systematic ijtihad;<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.</ref> adopting fatwas in accordance with the principle of justice; paying attention to fatwas that create effective laws;<ref>Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 112.</ref> complete familiarity with jurisprudence, law<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.</ref> and legal relations;<ref>Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.</ref> explicitness of the wording of the law derived from jurisprudence; preventing the approval of laws that give rise to crime,<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.</ref> giving authenticity to the law against the fatwa,<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.</ref> avoiding uncommon statements and fatwas, avoiding reprehensible legal eclecticism<ref>Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/ .</ref> and the existence of intermediary institutions between the legislator and the institution of jurisprudential ijtihad<ref>Ibid</ref> are among the requirements and conditions of legislation based on jurisprudence that have been pointed out by religious researchers.
*Systematic ijtihad: According to Ahmad Muballighī, a researcher in jurisprudence, in order to legalize jurisprudence, beside the ijtihad that exists in the seminary, we require a systematic ijtihad that is directed toward the collection and the laws surrounding a subject. He believes that law is not formed by one single fatwa; rather, we need a jurisprudential theory.<ref>Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute</ref>
*Adoption of fatwas that are based on the principle of justice: According to Nāṣir Qurbān-nīyā, a researcher in jurisprudence and law, the legislator must set the principle of justice as the standard of lawmaking and, for this purpose, choose the fatwa that best covers justice, even if it is not the famous fatwa of the jurists. He believes that there are various jurisprudential theories, some of which can better ensure the efficiency and freedom of citizens and justice for them.<ref>‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.</ref>
*Explicitness of the wording of the law that is derived from jurisprudence: Despite differences of opinion in jurisprudential fatwas, the legislator must use words that cannot be interpreted differently and controversially. Also, jurisprudential jargon must be avoided when converting jurisprudential rules into law
*to avoid confusing the law enforcer.<ref>Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.</ref>
*Recognizing the law as the final word: According to Sayyid Javād Vara‘ī, when Jurisprudential rules turn into law after approval by the Parliament, they must be the final word in social matters and no jurist’s idea should be above them, even if citizens follow various marjas and their marjas’ fatwas differ with the law.<ref>Husseinī, Farhang-i Lughāt va Iṣṭilāḥāt-i Fiqh-i, p. 139.</ref>
*Avoiding reprehensible legal eclecticism: Reprehensible legal eclecticism means performing an act or presenting a ruling or statement that has been derived and combined from several denominations, such that that action or ruling belongs to none of those denominations and none of them considers it as right.<ref>Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.</ref> On this basis, a law that is made through combining the ideas of a number of jurisprudential denominations about a religious issue is, in fact, an ineffective law.<ref>Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 163-166.</ref>
==Further reading==
Converting Islamic jurisprudence into law first took place in the Majallat al-Aḥkām al-‘Adlīyyah by a group, consisting of seven Islamic scholars, based on Hanafi jurisprudence, in sixteen books and a total of 1851 legal articles. In later modifications to update it, however, the opinions of other denominations were also referred to, and a section on comparative jurisprudence was added.<ref>Ibid, pp. 166-167.</ref> After publication of the Majallat al-Aḥkām al-‘Adlīyyah, it was critiqued and evaluated by scholars of other denominations. One such critique is the book Taḥrīr al-Majallat by Muhammad Hussein Kāshif al-Ghiṭā who was a Shia scholar living in Najaf.<ref>Kāshif al-Ghiṭā, Taḥrīr al-Majallat, vol. 1, pp. 39-40 and 110.</ref> In this book, he explained, criticized and sought to comprehend the al-Majallat and presented the opinions of Shia jurists alongside the opinions of other Islamic denominations in a comparative manner in the framework of new laws. He also added twenty-three jurisprudential rules to the al-Majallat.
==Bibliography==
* Abulḥasanī, Mohsen, and Fattāḥī Zafarqandī, Ali, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, Tehran, Pijvāk-i ‘Idālat, 2024
* Idāri-yi Kull-i Umūr-i Farhangī va Ravābit-i ‘Umūmī-yi Majlis-i Shūrā-yi Islāmī, Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, Tehran, Islamic Consultative Assembly publication, 1985
* Ismā‘īlī, Mohsen, and Mīrluḥī, Sayyid Muhammad Hussein, [https://ilr.isu.ac.ir/article%201958.html Āthār-i Pazīrish-i Qā‘idi-yi Nafy-i Khulv dar Niẓām-i Qānūnguḏārī-yi Iran], Ḥuqūq-i Islāmī journal, No. 44, 2017
* Amīn, Sayyid Hasan, Tārīkh-i Ḥuqūq-i Iran, Tehran, Dā’irat al-Ma‘ārif-i Iran Shināsī, 2013
* Bādpā, ‘Ubaydullāh, [https://fiqhemoqaran.mazaheb.ac.ir/article%207304%201e62f8e6aed31b0ed76b56a92d7a2001.pdf Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va Ta’thīr-i ān dar Taqrīb-i Dīdgāhhāyi Maḏāhib-i Islāmī], Fiqh-i Muqārin quarterly, No. 2, 2014
* Jahāngīrī, Mohsen, and Banāyī Khiyrābādī, Muhammad Ali, [https://cjd.razavi.ac.ir/article%201263%2042e834b123c81eec20e35dd62afb387f.pdf Fatwāyī Mi‘yār dar Qānūnguḏārī; Inṭibāq bā Maṣāliḥ-i Ilzāmī], Āmūzihāyi Madanī quarterly, No. 23, 2021
* Ḥājī Dihābādī, Ahmad, [https://qabasat.iict.ac.ir/article%2017081%2084e867390bf5a027523355773053c98b.pdf Fiqh va Qānūn-nigārī], Qabasāt quarterly, No. 15-16
* Husseinī, Muhammad, Farhang-i Lughāt va Iṣṭilāḥāt-i Fiqh-i, Tehran, Surūsh, 2007
* Samāvātī, ‘Abbās, and Mūsavī Bujnūrdī, Sayyid Mustafa, [https://matin.ri-khomeini.ac.ir/article%20128732%2007ff346eed64b69e0fa2efbd01561528.pdf Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī bā Tavajjuh bi Ārā-yi Imam Khomeini], Matīn quarterly, No. 87, 2020
* Ṣadr, Muhammad Bāqir, Lamḥah Fiqhīyyah Tamhīdīyyah ‘an Mashrū‘-i Dastūr al-Jumhūrīyyah al-Islāmīyyah fī Iran, Qom, Maṭba‘ah al-Khīyām, 1990
* ‘Azīzullāhī, Muhammadriḍā, [https://www.sid.ir/fa/seminar/ViewPaper.aspx?ID=80499 Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī va Mavāni‘ va Rāhkārhā-yi Ān, collection of papers of the national conference of the new Islamic civilization], Shāhid university, 2015
* Ghamāmī, Sayyid Muhammad Mahdi, and Mīrluḥī, Sayyid Muhammad Hussein, and Javādīyyih, Ali, [http://qjrl.cmirq.ir/article-1-236-fa.pdf Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn], Dīn va Qānūn quarterly, No. 19, 2021

==refrences==
[[fa:قانون‌گذاری احکام فقهی]]