Customary legislation

Author: Alireza Salehi

• abstract

From the point of view of some jurists, whether during Iran’s constitutional era such as Mohammad Hussein Tabrīzī and Faḍlullāh Nūrī, or in the era of the Islamic Republic of Iran such as Sayyid Mohammad Hussein Husseinī Tehranī, Customary legislation or the writing of constitutional and ordinary laws by legislative bodies is considered to be against the Sharia. To prove their claim, they have cited reasons such that Muslims do not need new legislation, particularly a Constitution, with the existence of the divine comprehensive law; that legislation contradicts the Prophethood and finality of the Prophet of Islam (PBUH); that non-Muslims have domination over Muslims; and that the majority vote is considered a false belief. On the other hand, jurists such as Mīrzā Nā’īnī, Muhammad Bāqir Ṣadr and Sayyid Muhammad Husseinī Bihishtī divided the duties of the obligees into the two areas of those about which there is a text and about which there is none. They acknowledge the existence of comprehensive and complete divine rules in the area about which there are texts and believe that the society requires some legislative body; because, in a wide range of permissible matters and in explaining secondary rules about which there is no text, the responsibility of decision-making has been entrusted to human beings. According to them, there is a need for legislation in the areas about which there is no text as well as in those areas of Sharia rulings over which jurists differ. They consider the enactment of laws to be of the rational ways that have been approved by the Lawmaker and that is obligatory as the prelude to obligation. After the victory of the Islamic Revolution of Iran, the jurists that were influential in Iran’s Islamic victory, including Imam Khomeini and Hussein Ali Muntaẓirī, considered lawmaking in Islam to include the three stages of legislation, recognition and planning. According to them, in Islam, the right to legislate belongs to God, and after its transmission by the Prophet (PBUH), divine decrees are extracted from the sources of religion by the Imams (AS) and the ijtihad of jurists. According to them, the parliament in the Islamic government does not have the right to legislate. Rather, its special task is to discover the issue, advise and plan on how to implement the Sharia and adapt new events to its standards. Also, jurists such as Mohammad Mu’min and Mohammad Taqī Miṣbāḥ Yazdī consider legislation in public affairs to be a matter under the guardian's control and a form of guardianship by him. According to them, legislative institutions are bodies under the guardian's control, and their enactments become law only with the guardian's approval.

Explaining the issue

The writing of laws by legislative bodies about matters about which no particular text has been issued by the Lawmaker and that relate to the daily and general affairs of the society has raised various reactions by jurists. Based on their theoretical foundations, they have presented some opinions about writing a Constitution or legislation in the Islamic government in the area of those matters about which there is no text. Some jurists who believe the right to legislate to belong to the Lawmaker alone, consider the formation of legislative bodies, including the parliament, and their legislations to be contrary to religious teachings. On the other hand, some jurists, while acknowledging the exclusiveness of the right to legislate in the matters of Sharia to the Lawmaker, believe that it is necessary to form lawmaking institutions to make decisions about public matters and about matters that have no texts (منطقه الفراغ) and also about controversial Sharia rulings. Some other jurists, particularly after the victory of the Islamic Republic of Iran, while believing in the exclusiveness of the right to legislate to the Lawmaker, reject independence in lawmaking. However, because of the government’s need for laws, they accept the existence of lawmaking institutions such as a parliament under titles such as planning and advising parliament. Also, some jurists consider lawmaking in this area to be exclusive to the guardian that he implements via the organs under his supervision.

Non-legality of lawmaking in the Islamic government and the reasons for it

The jurists who believe in the non-legality of legislation in the Islamic government have cited two types of reasons to prove their claim. Their arguments, on the one hand, relate to the issue of legislation such as introduction of false beliefs into religion and contradiction with the finality of the Prophet of Islam, and on the other hand, point to legislative institutions, such as the Parliament, including the non-legality of the parliamentarians' interference in public affairs and the possibility of domination of non-Muslims over Muslims through the election mechanism.

Heresy of lawmaking and the majority vote

According to Sheikh Faḍlullāh Nūrī, the first problem with the lawmaking process is with making laws in the area of originally permissible matters, when doing and not doing them are equal and people cannot be coerced to do or avoid them. Accordingly, when a law is passed in this area and its implementation is made compulsory and when citizens are punished for failing to fulfill it, it will be equal to legislation in religion and heretical. Also, according to the author of the Taḏkirat al-Ghāfil (unknown author) treatise, the majority vote as the legislative bodies’ tool for the enactment of laws opens the path for illegal laws to enter the lawmaking field. Therefore, the parliament is basically a heretical entity.

Muslims do not need new laws

According to Mohammad Hussein Tabrīzī, an Iranian jurist during Iran’s constitutional era, the existence of the divine comprehensive law is enough to organize the lives of people, and it leaves no need for a new law. In upcoming issues, people should refer to religious scholars based on the provisions of Imam al-Mahdī’s (AS) decree. Marandī Najafī, another jurist in the constitutional era, believed that considering the abolition of past religions by Islam, and based on the اکمال دین verse (verse 3 of surah al-Mā’idah about the completion of religion), there will be no need for the enactment of new laws and anyone who believes otherwise, in fact, denies God and the Prophet (PBUH). Also, Sayyid Javād Vara‘ī has said that after the victory of the Islamic Revolution of Iran, some jurists considered lawmaking as deception and standing against the Qur'an. They believed that the Qur'an and the Prophet’s conduct make our Constitution and that there is no need for new laws.

Contradiction of legislation with the Prophet’s (PBUH) prophethood and finality

According to the author of the Taḏkirat al-Ghāfil treatise, the rational reason for sending prophets has been the need for laws and man’s ignorance and inability to make them. If we consider ourselves capable of formulating laws, there will be no rational reason for the mission of prophets and this will be equal to denying the Prophet of Islam (PBUH). Also, in his opinion, if someone believes that the requirements of every era change some articles of the divine law, such a person is outside the circle of Muslims; because, he has questioned the finality of the Prophet of Islam (PBUH).

Illegality of the parliamentarians’ interference with public affairs

According to the opponents, making decisions about public affairs is a matter of guardianship, not of attorneyship, and the exercise of guardianship during the Occultation is the responsibility of jurists; Therefore, decision-making by the lawyers of the parliament will lead to the usurpation of the position of the Prophet (PBUH), Imams (AS) and their general deputies. By distinguishing between public and religious affairs, they consider intervention in religious affairs to be exclusive to jurists and decision-making in public affairs to rest upon the ruler and his agents, who will carry it out by setting guidelines. Therefore, there will be no need for legislation and the creation of legislative bodies. This reason can be eliminated if the legislative body is placed in the hands of competent people such as jurists, and therefore the illegitimacy of parliament members’ taking over of the seats and also of the establishment of legislative bodies can be removed in this way.

Domination of non-Muslims over Muslims

Another problem with legislative institutions is the possibility that non-Muslims may enter the parliament through the election mechanism and, thus, that the affairs of Muslims may fall into their hands. While, according to Najafī Marandī, based on the Nafy-i Sabīl (نفی سَبیل) rule, there should be no way for infidels to dominate Muslims. This reason, too, can be rejected by creating a mechanism to prevent non-Muslims from entering the parliament and cannot be cited by the opponents to conclude the illegitimacy of establishing legislative institutions.

Legitimacy of lawmaking in the Islamic government and its evidence

The jurists who believe in the permissibility of legislation in the Islamic government, whether during the constitutional era or during the Islamic Republic of Iran, maintain that despite the existence of comprehensive and perfect divine laws regarding religious affairs, some kind of legislative institution is necessary in the society; because, in a wide range of permissible matters and in explaining secondary rulings, the responsibility of decision-making has been entrusted to human beings. They consider legislation in the Islamic government to be of the type of adapting general rules to small issues and supervising the processes of implementing the rules of Sharia and the quality of implementing the rules. They believe in the permissibility, and even the necessity, of lawmaking by legislative bodies in the area of customary and public matters and also in the area of religious rules that are controversial among jurists. In the book Al-Islām Yaqūd al-Ḥayāt, Muhammad Bāqir al-Ṣadr has written that people directly establish the legislative body. Also, Sayyid Muhammad Husseinī Bihishtī, of the founders of the Islamic Republic of Iran and of the figures who were influential in the enactment of its Constitution, believed that administering the affairs of the state must be based on public votes. That is why legislative processes are required. The evidence provided by those who believe in the permissibility of legislation in the Islamic government sometimes relate to legitimizing legislative processes according to religious teachings and, sometimes, are presented in response to the evidence provided by the opponents.

Referring the area of matters not mentioned in the texts to the general people by the Lawmaker

Through dividing laws into constant and changing laws and the affairs of the Mukallaf people into those mentioned in texts and those not mentioned in texts, those people who believe in the legitimacy of lawmaking in the Islamic government maintain that if in some matters the Lawmaker’s ruling was extracted, there can be no option or vote therein and it has to be abided by. In the area of matters not mentioned in texts and controversial religious rules, however (Manṭaqat al-Firāgh), based on the verse و امرهم شورا بینهم, the Lawmaker has made public consultation responsible for these matters. Therefore, the rules will change based on the requirements of every time and place and the difference of interests. In response to the opponents who interpreted legislations by the parliament as replacing the laws of Sharia with customary law, Muhammad Ismā‘īl Maḥallātī, a jurist during the constitutional era, believed in the separation between the two areas of Sharia and custom. He believed that the Parliament members’ duty is to make decisions about customary affairs which fall outside the scope of juridical matters and, so, do not interfere with the duties of jurists. It has also been said that non-contradiction of the laws approved by the legislative body with Islamic standards and regulations will be confirmed by the participation of some mujtahids in the legislative process (supervisory board) or superior institutions such as the high authority institution.

The obligation of enacting laws as the prelude to obligation

Mīrzā Nā’īnī considers the preservation of the Islamic state from the evil of dictatorship as one of the obligations agreed upon by the Shiites and Sunnis, which will not be possible without supervisory organs. As he puts it, during the Occultation, supervision depends upon the existence of a Constitution and legislative bodies such as a parliament. Therefore, legislation is obligatory as the prelude to implementing obligations.

The difference between innovated false beliefs and innovative matters

Also, in order to legitimize the formulation of laws and the necessity of following them, in response to the doubt raised by the opposers’ who believe that legislation in the area of permissible matters is heretical and an innovated false belief, Nā’īnī compares law to non-obligatory matters, which become obligatory by a Naḏr, vow, oath, or as making a condition beside a binding contract. By differentiating between innovated false beliefs and innovative matters, he considers innovated false beliefs to occur when a non-forged religious matter is presented as a forged religious matter and made necessary. He believes that without this title, there can be no innovative false belief.

Approving the conduct of the wise in legislations by the Lawmaker

According to Muhammad Javād Fāḍil Lankarānī, legislation is basically a wise conduct to satisfy the needs of the society and this has not been rejected by the Lawmaker. Therefore, legislation is originally permissible in Islam. He believed that the absence of laws may lead to chaos and disruption of the system, and the Lawmaker does not allow disruption.

The lawfulness of non-independent legislation

After the victory of the Islamic Revolution of Iran, those jurists who were influential in this victory acknowledged the need of the Islamic society and government for laws and believed that the obligation of legislative processes is at utmost clarity because of the expansion of governments and the multiplicity of novel events and the necessity of drawing the main lines for administering the society. They considered it necessary to obey the approved law, even if it is against a person's opinion. According to them, the nature of legislation in the Islamic government is different from legislation in other governments and they believed that it includes the three stages of legislation, recognition and planning. This group of jurists, particularly Imam Khomeini, believed that the right of lawmaking belongs exclusively to God, and even the Prophet of Islam (PBUH) does not share this right with Him. After the enactment of laws by God and enouncing them through the Prophet (PBUH), it is time to recognize the divine laws and extract them from the sources of religion. This is done by the Imams (AS) through citing the Prophet (PBUH) and the ijtihad of jurists. According to this opinion, customary legislation in the Islamic government will basically be the adaptation of new events to Islamic standards and regulations. This group of jurists, citing some theological propositions such as the exclusiveness of legislation to God, finality, comprehensiveness and universality of Islamic Sharia, believe that Islam has left no issue without a ruling so that there would be a need to make a decision about it. For this reason, in the Islamic government, the parliament does not have the right to legislate and its special task is only to recognize the issue, advise and plan on how to implement the Sharia. By applying the opinions of these jurists in drafting the Constitution, according to Article 72 of this law, the Islamic Consultative Assembly must enact regulations that are in line with Islamic standards. For this reason, in principle 91, an institution was foreseen next to the Assembly to verify the non-contradiction of the Assembly's enactments with the standards of Sharia and the Constitution. According to Imam Khomeini, the Assembly, upon recognizing the issue, leaves it to the Guardian Council to determine the verdict. However, when dispute occurred between the Assembly and the Guardian Council regarding laws such as urban land law and labor law, Imam Khomeini gave some freedom to the Assembly in legislation by citing titles such as necessity and expediency, and also limited the authenticity of the Guardian Council’s recognition by forming the Expediency Discernment Council.

Lawfulness of legislation under the supervision of the guardian

Giving legislative authority to the guardian is another opinion that some contemporary jurists hold. According to this opinion, legislation is a kind of enforcement of guardianship, and the enactments of legislative bodies become law only with the approval of the guardian. Muhammad Mu’min, a contemporary jurist, believes that the administration of the society requires legislation about matters that have no verdict in the Sharia. According to him, in the administration of the Islamic society, the guardian realizes certain interests and harms, based on which he establishes necessary rulings and laws, which have no trace in the rules of religion, and it is necessary for all members of the Islamic society to obey those laws. He believes that since God the Exalted has appointed the guardian as the leader of the Islamic nation, based on the divine guardianship, legislation about matters related to the administration of the affairs of the nation rests with him and the guardian can establish institutions and entities such as the Parliament to make laws. ‘Abbās Khātam Yazdī, as well, considers legislation in the country’s organs and entities along the guardianship of the guardian, not parallel to it and believes that the guardian can remove or cancel the law in any scope he wants. Mu’min holds that the general rules of Sharia are constant and permanent laws that do not change (except with new secondary titles which require a temporary secondary ruling) and the duty of the Islamic government is only to implement these constant laws and does not have the right to legislate even in that area. However, implementing the rules of Sharia and supervising their proper implementation in all areas requires the establishment of regulations that are referred to as variable laws that change with the change of conditions. According to him, the guardian establishes regulations based on what he deems expedient so that both the people can better find their way and the authorities may know what they are responsible for. In another explanation for this theory, Muhammad Taqī Miṣbāḥ Yazdī, believes that legislation in the Islamic government is valid under the supervision of the guardian Islamic jurist which goes back to God in the form of a hierarchy. According to him, anyone whom God credits, such as the Prophet, has valid words, and also the words of anyone whom the Prophet appoints, such as the Amīr al-Mu’minīn, are valid for us, and so are the words of anyone who is, specifically or in general statement, appointed by the Infallible people. Therefore, the regulations and laws issued by the above hierarchy are divine and Islamic. According to Miṣbāḥ Yazdī, in the Islamic government, this approval may arrive through several intermediaries. For instance, the validity of the guardian Islamic jurist’s approval depends on the approval of the Infallible Imam, and the validity of the decisions and approvals of the Infallible Imam depend on approval by the Prophet (PBUH), and finally, it is the validity of the Prophet’s approval that has been proved by the text of the Qur'an.

Dependent queries

• Legislation
• Legislation of jurisprudential rules
• Legislation study resources
• Standard fatwa
• Guardian Council
• The relationship between law and Sharia

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