Customary legislation

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* '''abstract'''

'''Customary legislation''' (in Persian: [[:fa:قانون‌گذاری_عرفی|قانون‌گذاری عرفی]]) is subject of this Article. 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.

On the other hand, [[jurists]] such as [[Mirza Naini|Mīrzā Nā’īnī]], [[Sayyid Muhammad Baqir Sadr]] 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.

Also, [[jurists]] such as [[Mohammad Momen|Mohammad Mu’min]] and [[Mohammad-Taqi Mesbah-Yazdi|Mohammad Taqī Miṣbāḥ Yazdī]] consider [[legislation]] in public affairs to be a matter under the [[Wali al-Faqih|guardian]]'s control and a form of [[guardianship of the jurist|guardianship]] by him. According to them, legislative institutions are bodies under the [[Wali al-Faqih|guardian]]'s control, and their enactments become law only with the [[Wali al-Faqih|guardian]]'s approval.

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==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<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>.

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, [[Sayyid Muhammad Baqir Sadr]] 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>.

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.

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 * '''abstract'''
 '''Customary legislation''' (in Persian: [[:fa:قانون‌گذاری_عرفی|قانون‌گذاری عرفی]]) is subject of this Article. 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.
+On the other hand, [[jurists]] such as [[Mirza Naini|Mīrzā Nā’īnī]], [[Sayyid Muhammad Baqir Sadr]] 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.
 Also, [[jurists]] such as [[Mohammad Momen|Mohammad Mu’min]] and [[Mohammad-Taqi Mesbah-Yazdi|Mohammad Taqī Miṣbāḥ Yazdī]] consider [[legislation]] in public affairs to be a matter under the [[Wali al-Faqih|guardian]]'s control and a form of [[guardianship of the jurist|guardianship]] by him. According to them, legislative institutions are bodies under the [[Wali al-Faqih|guardian]]'s control, and their enactments become law only with the [[Wali al-Faqih|guardian]]'s approval.
@@ Line 36: / Line 36: @@
 ==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<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>.
+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, [[Sayyid Muhammad Baqir Sadr]] 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>.
 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.

Customary legislation: Difference between revisions