Jurisprudence and Law (book)

abstract

Jurisprudence and Law: Ideas, proposals and methodological solutions (Book) (in persian: 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 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 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 Islamic University of Malaysia, Abolqasem Alidoust, Foreign Professor of Qom Seminary, Abd Al- Qayyum Sajjadi, University Professor and former member of the Afghan National Assembly, Ahmad Moballeghi, Head of Islamic Research Center, Seyyed Javad Varaei, a member of the academic board of the University and Seminary Research Institute, 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 rights, variable interest and 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 social expediency in the formulation of law, the role of variable interests in Political laws, the relationship Jurisprudence and law in Iran's legislative fields, the relationship between the 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 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 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 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 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 (PBUH) can be the basis of jurisprudence and legislation in international law, constitutional law and political jurisprudence (pp. 101-103). Abandoning custom and expediency from the sources of jurisprudence, as well as neglecting the texts showing the 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 Hassan Vahdati Shobeyri, a member of 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, marriage, divorce and 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 checks, demand notes, and 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 authentic Islamic sources or authentic 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 University and the editor-in-chief of the Ahl al-Bayt Jurisprudence Quarterly, and by Ahmad Moballeghi, a lecturer of Karej Feqh and 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 religions should be used in this process to lead to the legal unity of the Islamic Ummah and rapprochement between religions (p. 259).

The role of social interest in law

According to Abdullah bin Hamoud al-Azzi, 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, social expediency affects the formulation of law through general jurisprudential rules such as "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 in Egypt, 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 innocent Imam to issue rulings based on public interest (p. 399). This sentence is the main contention of 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 public interests change, the rulings also change. He also points out to the several distinctions between the criterion expediency in Sharia rulings and the criterion expediency in government rulings including: (a) The expediency of Sharia rulings is recognized by God, and the expediency of government rulings is recognized by the ruler of society; and (b)The expediency of the first type is fixed and the expediency of the second type is subject to different time conditions (p. 386).

Solving the problem of law and jurisprudence

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 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 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 Islamic Council in order to explain the relationship between the 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 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 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 government order (p. 670-660).