Customary legislation: Difference between revisions

[[Mirza Naini|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<ref name="ref25">Khomeini, Vilāyat-i Faqīh, pp. 43-45</ref>. As he puts it, during the [[The Occultation|Occultation]], supervision depends upon the existence of a [[Constitution]]<ref group="note" name="note1">Nā’īnī considers the lawfulness of legislation to depend on three conditions: a) Assigning the constitution to all kinds of interests; b) basing it on the rules and requirements that arise from the contract of trust and c) ensuring non-contradiction of its chapters and articles with the rules of Sharia. (Fayarḥī, Āstāni-yi Tajaddud, p. 335)</ref> and legislative bodies such as a [[parliament]]<ref group="note" name="note2">Nā’īnī believes that limiting tyranny is not possible without the realization of the main cause of that limitation, which is establishment of the Parliament. (Fayarḥī, Āstāni-yi Tajaddud, p. 335)</ref>. Therefore, [[legislation]] is obligatory as the prelude to implementing obligations<ref name="ref26">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59</ref>.  

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<ref name="ref30">Khomeini, Ṣaḥīfi-yi Imam, vol. 15, p. 312</ref> 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<ref name="ref31">Khomeini, Vilāyat-i Faqīh, pp. 43-44; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 60; Javādī Āmulī, Vilāyat dar Qur’ān, p. 144; Subḥānī, Ilāhīyyāt ‘Alā Hudā al-Kitāb va al-Sunnah va al-‘Aql, vol. 2, p. 81</ref>. They considered it necessary to obey the approved law, even if it is against a person's opinion<ref name="ref32">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-60</ref>.  

According to them, the nature of [[legislation]] in the [[Islamic government]] is different from [[legislation]] in other governments<ref name="ref33">Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, pp. 59-60</ref> and they believed that it includes the three stages of [[legislation]], recognition and planning<ref name="ref34">Amīnīpajūh and Ka‘bī, Mabānī-yi Kalāmī-yi Qānūn Guḏārī va Āthār-i Fiqhī va Ḥuqūqī-yi Ān dar Ḥukūmat-i Islāmī, pp. 9-23</ref>. This group of [[jurists]], particularly [[Imam Khomeini]], believed that the right of lawmaking belongs exclusively to God, and even the [[Prophet Muhammad (PBUH)|Prophet of Islam (PBUH)]] does not share this right with Him<ref name="ref35">Khomeini, Ṣaḥīfi-yi Imam, vol. 15, p. 312</ref>. After the enactment of laws by God and enouncing them through the [[Prophet Muhammad (PBUH)|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 Muhammad (PBUH)|Prophet (PBUH)]] and the [[ijtihad]] of [[jurists]]<ref name="ref36">Khomeini, Vilāyat-i Faqīh, pp. 43-44; Muntaẓirī, Dirāsāt fī Vilāyat al-Faqīh, vol. 2, p. 59; Subḥānī, Al-Taqnīn fī al-Ḥukūmat al-Islāmīyyah, pp. 238-258</ref>. According to this opinion, customary [[legislation]] in the [[Islamic government]] will basically be the adaptation of new events to Islamic standards and regulations<ref name="ref37">Ahvāzī, Imam Khomeini bi Ravāyat-i Ayatollah Hāshimī Rafsanjānī, p. 155</ref>. 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<ref name="ref38">Hāshimī, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 2, p. 734</ref>. 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<ref name="ref39">Mihrpūr, Didgāh-hāyi Jadīd dar Masā’il-i Ḥuqūqī, p. 48</ref>, advise and plan on how to implement the [[Sharia]]<ref name="ref40">Khātam Yazdī, Ab‘ād-i Fiqhī-yi Imam Khomeini, p. 114</ref>.

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<ref name="ref41">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, p. 80</ref>. However, when dispute occurred between the Assembly and the [[Guardian Council]]<ref name="ref42">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, p. 81</ref> 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 [[Maslaha|expediency]], and also limited the authenticity of the [[Guardian Council]]’s recognition by forming the [[Expediency Discernment Council]]<ref name="ref43">Mu’min, Ikhtīyār-i Valī-yi Amr dar Qānūn Guḏārī, pp. 81-82</ref>.  

==Bibliography==