View source for Jurisprudence and Law (book)

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* '''abstract'''
'''Jurisprudence and Law: Ideas, proposals and methodological solutions (Book)''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D9%81%D9%82%D9%87_%D9%88_%D9%82%D8%A7%D9%86%D9%88%D9%86_(%DA%A9%D8%AA%D8%A7%D8%A8) فقه و قانون (کتاب)]) is a Persian book containing 24 articles by different authors about [[legislation]] based on [[Islamic jurisprudence]]. This work contains articles presented at the first international [[jurisprudence]] and law conference and was published by the [[Islamic Research Center of the Islamic Council]]. According to the head of this center, [[Ahmad Moballeghi]], modernity in different attitudes and paying attention to the needs of the day is one of the features of the articles in this volume. The collection of articles in this volume is organized in four chapters, and it covers the following topics: the capacities and limitations of [[jurisprudence]] in the field of [[legislation]], issues related to the relationship between [[jurisprudence]] and law, the types of relationship between [[jurisprudence]] and law, the enactment of [[Sharia]] law, the effect of [[Maslaha|social expediency]] in the formulation of law, the role of variable interests in [[Political laws]], the relationship between [[jurisprudence]] and law in Iran's legislative areas, the relationship between [[governmental ruling|government decree]] and law, how to legislate in permissible area and the characteristics of law in the religious system. Some of the authors of the mentioned articles are: [[Mohammad Abd al-Rahman Seddiq]], Professor of Law Faculty of [[International Islamic University Malaysia|Islamic University of Malaysia]], [[Abolqasem Alidoust]], Foreign Professor of [[Qom Seminary]], [[Abd al-Qayyum Sajjadi|Abd Al- Qayyum Sajjadi]], University Professor and former member of the Afghan National Assembly, [[Ahmad Moballeghi]], Head of Islamic Research Center, [[Sayyid Javad Varai|Seyyed Javad Varaei]], a member of the academic board of the University and Seminary Research Institute, [[Seyfullah Sorami|Seyfollah Sarami]], a member of the academic board of the [[Islamic Science and Culture Research Institute]].

==General information==
The book of jurisprudence and law: Ideas, proposals and methodological solutions include a collection of articles by a group of thinkers and researchers from Islamic countries which examines the relationship between [[jurisprudence]] and law. The articles of this book presented at the first international [[jurisprudence]] and law conference and they were compiled and published by the [[Islamic Research Center of the Islamic Council]]. According to [[Ahmad Moballeghi]], the head of the [[Islamic Research Center]], examining the multifaceted relationship between [[jurisprudence]] and law, modernity in different attitudes, looking at jurisprudence and law from different perspectives, and paying attention to the surprises and needs of the legislative process are among the features of the articles in this collection (p. 24).
Twenty-four articles in this collection are organized in four chapters. In the first chapter, it deals with the methodological, descriptive and analytical issues needed to enter into the discussion of the relationship between [[jurisprudence]] and law. The viewpoints about the forms of relationship between law and jurisprudence as well as the solutions of [[jurisprudence]] have been examined in the second chapter. In the third chapter, the relationship between [[jurisprudence]] and specific areas of law, such as the field of [[fundamental rights]], [[humanitarian law|humanitarian rights]], variable interest and [[Maslaha|social expediency]], is discussed. Finally, in the fourth chapter, methodical solutions in organizing the relationship between [[jurisprudence]] and law are discussed.
This book has been translated into Arabic with the title "Al-Fiqh and Al-Qanoun (Concepts, Proposals, and Methodological Treatments)".

==Topics==
The articles presented in the jurisprudence and Law book cover various topics related to [[jurisprudence]] and Law. The following topics are discussed: the role of basic theories in the organization of various topics, the capacities and limitations of [[jurisprudence]] in the field of [[legislation]], the types of issues that can be raised in the relationship between [[jurisprudence]] and law, forms of the relationship between [[jurisprudence]] and law, [[Sharia]] [[legislation]], the effect of [[Maslaha|social expediency]] in the formulation of law, the role of variable interests in [[political law|Political laws]], the relationship [[Jurisprudence]] and law in Iran's legislative fields, the relationship between the [[governmental ruling|government decree]] and the law, how to legislate in the permissible area and the characteristics of law in the religious system.

===The role of jurisprudence in issuing and improving economic rulings===
[[Mohammad Abd al-Rahman Seddiq]], a professor of law at the [[International Islamic University Malaysia|Islamic University of Malaysia]], in an article entitled "Fundamental concepts of [[jurisprudence]] and how they affect the formation of relevant rulings: A comparative study with special reference to partnership" believes that the theoretical and practical foundations of [[jurisprudence]] provide the general framework of [[jurisprudence]] (p. 30). It is used as a basis for issuing a [[fatwa]] (p. 31). According to him, if these fundamental concepts are not properly considered in the issuance of rulings, it can lead to the disconnection of those rulings with the body of [[jurisprudence]] (p. 30). According to him, knowledge of the fundamental theories in issuing fatwas on new issues is of vital importance in order to preserve the integrity and coherence of [[Sharia]] law (p. 31).
By examining the rulings of business partnership in the four [[Sunni]] jurisprudential religions, the author has come to the conclusion that the rulings of business partnership in each of the four religions are dependent on a different understanding of the concept and the main basis of partnership in that religion (p. 52). He has also suggested that a group of researchers undertake research on the theoretical foundations of issues related to [[Islamic economics]]. Another group examines the set of rulings issued in terms of compatibility or non-conformity with the theoretical foundations and propose new rulings if necessary which is more consistent with the basics (p. 53).

===Jurisprudence capacities in the field of legislation===
The possibility of [[legislation]] based on the capacities of common [[jurisprudence]] is a question that two articles from this series are responsible for answering. According to [[Abd al-Qayyum Sajjadi|Seyyed Abd Al- Qayyum Sajjadi]], a university professor and former member of the Afghan Council, [[jurisprudence]] should be revised and transformed in a quantitative and qualitative manner. Accordingly, he considers popularity to be a serious obstacle on the path of evolution in [[jurisprudence]]. According to him, quantitative transformation is balancing the fields of individual [[jurisprudence]] and social [[jurisprudence]]. So, the jurisprudential system should focus more on social issues in order to be in the field of [[legislation]] (p. 82). He believed that the qualitative transformation is systematization and theorizing in [[jurisprudence]]. According to him in the article titled "Jurisprudence and Legislation: Capacities and limitations", [[jurisprudence]] can eventually become an influential device for [[legislation]] that deals with theorizing with an appropriate method (p. 82-83). Emphasizing the [[Maqasid al-Shari'a|purposes of the Shari'ah]] and reviewing the method are two of Sajjadi's suggestions for transformation in [[jurisprudence]] in order to be present in the field of [[legislation]] (p. 83-84).
[[Abolqasem Alidoust]], one of the professors of [[Kharij Fiqh]] and [[Usul al-fiqh|Osoul]], in his article seeks to examine the capacities and harms of converting [[fiqh]] into law. He acknowledges the necessity of deriving the law from the divine law and [[Islamic jurisprudence]] as one of the definitive Islamic beliefs (p. 95). According to him, the existing [[jurisprudence]] has actual and potential capacities including the richness of the source. Although it is not incorporated in [[jurisprudence]] with the intention of [[legislation]], one of its functions is in the field of [[legislation]]. According to him, the richness of sources and documents, the method of inference, the experience of being presented in scientific debates for a thousand years, diverse branches of [[jurisprudence]] and practical principles are some of the strengths of [[jurisprudence]] in the field of [[legislation]] (pp. 101-98). Alidoust also points out in the pathology of existing [[jurisprudence]], such as insufficient use of the [[Qur'an]], [[Sunnah]] and reason. According to him, for example, the current and narrated tradition of the [[Prophet Muhammad (PBUH)|Prophet (PBUH)]] can be the basis of [[jurisprudence]] and [[legislation]] in [[international law]], [[constitutional law]] and [[political jurisprudence]] (pp. 101-103). Abandoning [[Urf|custom]] and [[Maslaha|expediency]] from the sources of [[jurisprudence]], as well as neglecting the texts showing the [[Maqasid al-Shari'a|purposes of the Sharia]], and neglecting scholarly research on new issues, are some of the criticisms that Alidoust has made on [[Shia jurisprudence]] (pp. 101-108).

===The functions of jurisprudence in the legislative process===
Eliciting all kinds of jurisprudential issues in the field of [[legislation]] is something that [[Hasan Vahdati Shubayri|Hassan Vahdati Shobeyri]], a member of [[University of Qom|Qom University]]'s faculty, deals with in the article titled "Interaction of Law and [[Jurisprudence]] in the [[Islamic Republic of Iran]]". According to him, we are facing three categories of jurisprudential issues in the field of [[legislation]]: (a) Traditional issues such as personal matters such as [[Inheritance in Islam|inheritance]], [[Marriage in Islam|marriage]], [[Divorce in Islam|divorce]] and [[Will in Islam|will]]; (b) Emerging issues such as [[citizenship]] regulations and (c) Changed topics such as remittances which are in the form of commercial documents such as [[Cheque|checks]], demand notes, and [[Promissory note|promissory notes]] (p. 153-157).
In the following, he draws four roles and functions for [[jurisprudence]] in the field of [[legislation]] and implementation of [[Sharia]] according to the extracted issues: (a) The basic role in areas where the legislator directly takes the ruling from [[jurisprudence]] and provides it to the executors in the form of an approved law, such as a major part of personal affairs (p. 157); (b) The role of the standard that the legislator deals with in new issues based on the general principles of [[jurisprudence]] to legislate according to the requirements of the day; (c) The role of interpretation in the sense that if a law is subject to different interpretations, only the interpretation that conforms to jurisprudential standards is acceptable and valid; and (d) The supplementary role that in cases of lack of law, the judge is obliged to issue a verdict by referring to [[Primary sources of Islamic law|authentic Islamic sources]] or authentic [[Fatwa|fatwas]] (p. 158).

===Types of relationship between jurisprudence and law===
The examination of different forms of the relationship between [[jurisprudence]] and [[law]] was done by [[Khaled al-Ghafouri]], a member of the academic staff of [[Al-Mustafa International University|Al-Mustafa University]] and the editor-in-chief of the [[Ahl al-Bayt Jurisprudence Quarterly]], and by [[Ahmad Moballeghi]], a lecturer of [[Kharij Fiqh|Karej Feqh]] and [[Usul al-fiqh|Osoul]]. In the article "Is it necessary for the law to be in accordance with [[jurisprudence]] or is it sufficient not to disagree with it?", [[Khaled al-Ghafouri]] refers to three forms of complete compliance (p. 168), non-conflict (p. 170) and harmony between [[jurisprudence]] and law (p. 173). After examining the problems and answering them in all three forms, he accepts the relationship of coordination (p. 185).
By extracting the concepts found in [[jurisprudence]] books, [[Ahmad Moballeghi]] achieves six types of relationship between [[jurisprudence]] and [[law]], which extends from the originality of jurisprudence to the originality of law. Law being a vessel for [[jurisprudence]], the union and annihilation of [[jurisprudence]] and law in each other, determination of limits and boundaries by [[jurisprudence]], [[jurisprudence]] as the spirit of law, [[jurisprudence]] as a source of law, and the guarantee of [[jurisprudence]] in law are among these relationships (pp. 197-192).

===Converting jurisprudence into law===
[[Hassanali Aliakbarian]], a member of the scientific board of the [[Research Institute of Islamic Sciences and Culture]], has first asked two questions to explain how to convert [[Sharia]] rules into law: (a) Which area of Sharia rulings has the ability to become a law? (b) By what criteria is the [[Islamic government]] allowed to approve a law that is known to be against the principles of Islam? (p. 200) In response to the first question, he believes that all fixed rules of Islam, both obligatory and non-obligatory, and imperative and conditional, when they are somehow related to the administration of society, have the possibility of becoming law. In response to the second question, he hypothesizes that the criterion that allows the [[Islamic government]] to enact laws contrary to the established rules of Islam is to comply with the steps of "preservative interference in implementation". In his opinion, this type of conflict occurs only for the Islamic ruler in the position of implementing Islamic rules in the society (p. 200).
Mohammad Tahami Dekir, an Islamic researcher, in his article entitled "Legislation of Sharia Laws: ...", firstly discusses the arguments of the proponents and opponents and the reasons for the superiority of the arguments of the proponents and its effects (pp. 256-242). He believes that the implementation of [[Shariah]] requires a review of the structure of Shariah in order to transform it into legal articles and texts, in the form of statutory laws, to make it easier to use (p. 238). According to him, the jurisprudential heritage of all [[Islamic schools and branches|Islamic religions]] should be used in this process to lead to the legal unity of the [[Ummah|Islamic Ummah]] and rapprochement between religions (p. 259).

===The role of social interest in law===
According to [[Abdullah bin Hamoud al-Azzi]], [[Maslaha|jurisprudence of social expediency]] is effective in the two areas of [[legislation]] of jurisprudence and executive and formal [[legislation]] (p. 373-380). According to him, [[Maslaha|social expediency]] affects the formulation of law through general jurisprudential rules such as "[[Rule of no hardship|negation of hardship]]", "non-observance of [[Sharia]] rulings from real benefits and corruptions", and "observance of servants' duties from their interests" and... (p.359).
Also, according to [[Ahmad Hendi]], a professor at [[Alexandria University|Alexandria University in Egypt]], [[Maslaha|expediency]] is the basis and criterion of everything, and the legislator must act on the basis of securing the interests of the people of the society in all laws. Therefore, it is expedient to approve or not to approve the circular law (p. 403-404). In the article "Social Interest in Executive Laws", he believes that all judicial actions must be beneficial in order to be accepted, and there is no difference between requesting these actions from a civil, criminal or administrative court (p. 404).

===Variable materials, the axis of political laws===
Political rulings cannot have a fixed and unchangeable ruling due to their flexible nature in different time and place conditions, for this reason they left it to [[The Fourteen Infallibles|innocent Imam]] to issue rulings based on [[Maslaha|public interest]] (p. 399). This sentence is the main contention of [[Sayyid Javad Varai|Seyyed Javad Warei]], a member of the academic staff of the Seminary and University Research Institute, in the article "Variable Materials, the Axis of Political Laws". According to him, these matters do not have a fixed ruling, and when the [[Maslaha|public interests]] change, the rulings also change. He also points out to the several distinctions between the criterion [[Maslaha|expediency]] in [[Sharia]] rulings and the criterion [[Maslaha|expediency]] in [[Governmental ruling|government rulings]] including: (a) The [[Maslaha|expediency]] of [[Sharia]] rulings is recognized by God, and the [[Maslaha|expediency]] of [[Governmental ruling|government rulings]] is recognized by the ruler of society; and (b)The [[Maslaha|expediency]] of the first type is fixed and the [[Maslaha|expediency]] of the second type is subject to different time conditions (p. 386).

===Solving the problem of law and jurisprudence===
[[Seyfullah Sorami|Saifullah Sarami]], a faculty member of the scientific [[Research Institute of Islamic Sciences and Culture]], believes that in the [[Islamic government]] and in the legislative process, the issue of [[jurisprudence]] and law has a fundamental problem. Because jurisprudential rulings have characteristics such as devotion and stability, and it is in contrast to law, it is temporary and can be revoked according to the conditions and requirements of time and place (p. 607). Accordingly, in order to solve this problem, we should go back to before the law was approved, explaining that we are faced with interests and interests at the legislative stage. On the other hand, securing the hereafter and worldly happiness of mankind depends on the compliance with the demands of [[Sharia]]. Now, if we can create a logical and valid combination between the purposes of [[legislation]] and the demands of [[Sharia]] law before approving the law, the approved law will also be the sum of them. In addition, the problem of the relationship between [[jurisprudence]] and the law will be solved before it arises so the approved law will be the answer. It is according to the demands of Islam and also responds to the needs of time and place (p. 623-624).

===Legislation in the Permissible Zone===
In two of the articles in this book, the issue of the relationship between [[legislation]] and the theory of permissible zone has been discussed. [[Mahmoud Hekmatnia]], a member of the academic staff of the [[Islamic Culture and Thought Research Institute]], believes that on the assumption of accepting such a changing area in the field of [[Islamic legislation]], the only way to legislate in this area is to leave it to the [[Wali al-Faqih|guardian]] (p. 687). While explaining the term "permissible area", [[Awad Mohammad Awad]], a professor at the [[Alexandria University]], Egypt, in an article titled "Jurisprudence and Law and the Permissible area believes that the [[Islamic law|Islamic legal system]] is due to the superhuman resources of its laws and the flexibility of these resources in facing changes and Emerging events never face the challenge of the permissible (p. 691).

===The relationship between the government order and the law===
[[Mohammad Javad Arasta]], the faculty member of [[University of Tehran]], first determines the nature of the approvals of the [[Parliament of Iran|Islamic Council]] in order to explain the relationship between the [[governmental ruling|government decree]] and the approved law. According to him, the approvals of the parliament can be divided into three main categories: clarification of [[Sharia]] ruling, recognition of the issue of [[Sharia]] ruling, and planning for the appropriate implementation of divine rulings (p. 666-668). He contends that the third activity of the parliament, i.e., planning for the implementation of divine decrees, will be an example of the [[governmental ruling|ruling of the government]]. The obligation of people to use a particular method (such as punishing different drivers with financial fines) to fulfill some duties and leaving some taboos and not to use other methods will be a result of the [[governmental ruling|government decree]] (p. 668-669). He also believes that the type of approvals of the [[Expediency Discernment Council]] to resolve the dispute between the parliament and the [[Guardian Council]] will be an example of a [[governmental ruling|government order]] (p. 670-660).


[[fa:فقه و قانون (کتاب)]]
[[category: book review]]