Customary legislation: Difference between revisions

From the point of view of some [[jurists]], whether during [[Iranian Constitutional Era|Iran’s constitutional era]] such as [[Mohammad Hossein Tabrizi|Mohammad Hussein Tabrīzī]] and [[Fazlullah Nuri|Faḍlullāh Nūrī]], or in the era of the [[Islamic Republic of Iran]] such as [[Sayyid Mohammad Hossein Hosseini Tehrani|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 Muhammad (PBUH)|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 [[Mirza Naini|Mīrzā Nā’īnī]], [[Mohammad Baqir al-Sadr|Muhammad Bāqir Ṣadr]] and [[Mohammad Beheshti|Sayyid Muhammad Husseinī Bihishtī]] divided the duties of the [[Mukallaf|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 [[Hossein-Ali Montazeri|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 Muhammad (PBUH)|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.

According to [[Mohammad Hossein Tabrizi|Mohammad Hussein Tabrīzī]], an Iranian [[jurist]] during [[Iranian Constitutional Era|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-Mahdi (AS)|Imam al-Mahdī’s (AS)]] decree<ref name="ref9">Tabrīzī, Kashf al-Murād, p. 131</ref>. 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 ([[Surah Al-Ma'idah|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 Muhammad (PBUH)|Prophet (PBUH)]]<ref name="ref10">Najafī Marandī, Dalā’il Barāhīn al-Furqān, pp. 197-200</ref>. Also, [[Sayyid Javad Varai|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 Muhammad (PBUH)|Prophet’s]] conduct make our [[Constitution]] and that there is no need for new laws<ref name="ref11">Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Alimān-i Dīn, pp. 57-59</ref>.  

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<ref name="ref15">‘Amīd Zanjānī, Fiqh-i Sīāsī, vol. 1, pp. 121-122</ref>. They consider [[legislation]] in the [[Islamic government]] to be of the type of adapting general rules to small issues<ref name="ref16">Makārim Shīrāzī, Anvār al-Uṣūl, vol. 3, p. 253; Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, pp. 335-337</ref> and supervising the processes of implementing the rules of [[Sharia]] and the quality of implementing the rules<ref name="ref17">Najafī Iṣfahānī, Mukālimāt-i Muqīm va Musāfir, p. 429; Ṣadr, Al-Islam Yaqūd al-Ḥayāt, p. 12</ref>. They believe in the permissibility, and even the necessity, of lawmaking by legislative bodies in the area of [[customary lawmaking|customary and public matters]] and also in the area of religious rules that are controversial among [[jurists]]<ref name="ref18">Maḥallātī, Rasālah al-Li’ālī Marbūṭah fī Vujūb al-Mashrūṭah, p. 539</ref>. In the book Al-Islām Yaqūd al-Ḥayāt, [[Mohammad Baqir al-Sadr|Muhammad Bāqir al-Ṣadr]] has written that people directly establish the legislative body<ref name="ref19">Najafī Iṣfahānī, Mukālimāt-i Muqīm va Musāfir, p. 427; Nā’īnī, Tanbīh al-Ummah, p. 123; Ṣadr, Al-Islam Yaqūd al-Ḥayāt, pp. 12-13</ref>. Also, [[Mohammad Beheshti|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<ref name="ref20">Nā’īnī, Tanbīh al-Ummah, pp. 88-90</ref>.  

[[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==