Encyclopedia of Contemporary Jurisprudence

The Relationship Between Law and Sharia

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  • Abstract

The Relationship Between Law and Sharia(in persian: نسبت قانون با شریعت) is an issue related to the processes of legislation that seeks to understand the type of connection between the two concepts of fiqh (jurisprudence) and law, and the ways to resolve inconsistencies between them. For more than a century, since the introduction of the modern concept of law into the geography of the Islamic world, the minds of jurists (fuqaha) have never been free from considering the relationship between the two concepts of Sharia and law. They have constantly been examining topics such as the points of difference and commonality between law and Sharia, the capacities of current fiqh in the legislative arena, how to ensure enacted laws conform to religious standards and regulations, solutions for resolving conflicts between fiqh and law, and the place of Sharia in contemporary society.

In assessing the relationship between fiqh and law, jurisprudential researchers, by extracting existing ideas, have identified several forms of connection between the two, ranging from the primacy of fiqh to the primacy of law. These include law as a vessel for fiqh, the relationship of union and the annihilation of fiqh and law into each other, a limiting relationship, the authority of fiqh, and the primacy of law. In this assessment, what jurists generally agree on is that enacted laws should not contradict the definitive teachings of Sharia. For this reason, mechanisms were established to determine this non-contradiction, both during the Constitutional Revolution and in the era of the Islamic Republic.

In confronting the challenge of incompatibility between Sharia and law, or between a fatwa and the law, solutions have been proposed by jurists, jurisprudential researchers, and the drafters of the Constitution of the Islamic Republic of Iran to resolve this problem. These include observing the expediency of the system, separating the domain of law from that of fatwa, establishing the law as the final arbiter over fatwas, and referring to a standard fatwa. These solutions can be categorized into two groups: resolving the incompatibility of law with Sharia and law with fatwa.

Explanation of the Issue

Law, as the most fundamental concept in the modern legal system,[1] upon entering the geography of the Islamic world, created challenges such as the relationship between law and Sharia, or the issue of the connection between fiqh and law, in the intellectual space of the Islamic world.[2] In assessing the relationship between the two concepts of fiqh and law, Islamic thinkers first try to understand the nature of these two concepts.[3] In defining these two terms, they usually arrive at a common point: that both fiqh and law are a set of rules for organizing human life in society.[4] This conceptual overlap between the two words, law and fiqh,[5] has meant that for over a century, the minds of jurists have never been free from considering the relationship between law and Sharia. They are constantly seeking answers to questions such as: What is the relationship between law in its modern sense and Sharia as a collection of religious rulings? What are their points of difference and commonality? What is the source of the law's legitimacy alongside fiqh? Is it necessary for the law to originate from divine Sharia? And does existing fiqh have the necessary capacity to formulate laws for contemporary society?[6] Should enacted laws be in accordance with religious standards and regulations, or is mere non-opposition sufficient? In a conflict between a law passed by legislative bodies in an Islamic government and Sharia, which takes precedence, or what are the solutions to resolve the conflict? Do laws enacted by a non-religious government have legitimacy if they do not conflict with religious rulings? Who is responsible for ensuring that enacted laws comply with religious standards?[7] And finally, after a law is passed, what place will fiqh and Sharia have in society and people's lives?[8]

In response to the questions raised about the relationship between Sharia and law, as well as the prominent presence of legislative bodies and the drafting of ordinary and constitutional laws in Islamic countries, two major approaches have emerged among jurists and Islamic thinkers. For example, in contemporary Iran, a number of jurists, both during the Constitutional era and the Islamic Republic period, did not accept law in a society governed by Sharia. Even those who accepted it did not see it as a rule that is the final arbiter, but rather as subordinate to Sharia.[9]

Importance and Status

Reflection on the relationship between law and Sharia has been examined within discussions related to Islamic government, especially in the issue of legislation. It has been said that the process of legislation in an Islamic government cannot be completed without conceptualizing and explaining the relationship between fiqh (Sharia) and law, and subsequently providing the necessary facilities and tools.[10] Regarding the importance of this issue, it has also been noted that more than a century after the introduction of the modern concept of law into Islamic society, the relationship of law with Sharia, fiqh, and fatwa remains a pressing issue, and thinkers are still seeking a way to organize this relationship and resolve the inconsistencies between them.[11]

Forms of Relationship Between Law and Sharia

Most jurisprudential researchers, in assessing the relationship between law and Sharia and focusing on Sharia, have spoken of several types of law.[12] According to them, sometimes an enacted law is in complete conformity with Sharia, and sometimes it is completely opposed. There are also times when it is neither in conformity nor in opposition; in other words, a relationship of non-conflict exists between them. This is regardless of whether the law was enacted by a legitimate government or an illegitimate one.[13] The centrality of Sharia in relation to law can be seen, for example, in the treatise Tanbih al-Ummah by Mirza Na'ini, a jurist from the Constitutional era.[14] He uses the relationship of general and specific absolute from the four logical relations to determine the relationship between law and Sharia. He explains that a statute law does not necessarily have to be contrary to Sharia, but there is no requirement that Sharia must conform to the law.[15]

Ahmad Muballighi, a jurisprudential researcher, has extracted the existing ideas among jurists about the nature of the relationship between law and Sharia (fiqh) and has arrived at a six-fold classification that extends from the primacy of fiqh to the primacy of law:[16]

  • Container Relationship:** In this view, law is pictured as a container or mold into which fiqh is poured. According to this view, the role of law is considered null, and primacy is given to fiqh.[17]
  • Relationship of Union and Annihilation:** Proponents of this idea believe in the unity and annihilation of fiqh and law into each other, seeing them as one thing. According to Muballighi, since in an Islamic society primacy is with fiqh, according to this view, law must still be annihilated in fiqh and will have no primacy.[18]
  • Limiting Relationship:** According to this idea, fiqh is responsible for setting the limits and boundaries, and the law can be implemented within the circle of these limits. In this relationship, the law does not need to be in complete conformity with fiqh; rather, non-opposition is sufficient. Therefore, the law will have more freedom of action.[19]
  • Soul and Body Relationship:** In this view, the law plays the role of the body or physique, and fiqh is like the soul that flows through its veins. In light of this idea, the law has an independent identity and will work with freedom. However, accepting this idea requires that the methods, objectives, and jurisprudential criteria are first identified.[20]
  • Authority of Fiqh:** In the fifth idea, fiqh is recognized as one of the sources and references for the law, alongside other sources such as legal science. In this idea, just as the law refers to fiqh, it will also be based on other human sciences and will have a high degree of primacy.[21]
  • Primacy of Law:** This view considers law as a principle among principles and attributes an independent identity and existence to it, and it seeks to guarantee the rulings of fiqh within the law.[22]

The Necessity of Aligning Law with Sharia

In assessing the relationship between law and Sharia, what jurists generally agree on is that laws passed by parliament should not contradict the definitive teachings of Sharia. For this reason, mechanisms were established to determine this non-contradiction, both during the Constitutional Revolution and in the era of the Islamic Republic. In the Constitutional era, based on the second article of the supplement to the Constitutional Law, known as the "Taraz-e Avval" law, five selected jurists had to confirm the compatibility of laws passed by the parliament with religious standards and regulations.[23] During the Islamic Republic of Iran, this important task was assigned to the judgment of the majority of the jurists of the Guardian Council of the Constitution.[24] Accordingly, when a law is deemed contrary to Sharia, it is sent back to the floor of the parliament for amendment.[25]

Types of Issues in the Interaction of Law and Sharia

Three categories of issues have been mentioned in the interaction between fiqh and Sharia with law:[26]

  • Issues Discussed in Traditional Fiqh: A portion of issues, such as regulations related to personal status (marriage, divorce, inheritance, etc.), have traditionally been discussed in fiqh, and over many years, jurists have extracted all the rulings that a legislator would need. In these cases, it is said that fiqh plays a foundational role, and the legislator incorporates the religious rulings derived from fiqh into legal articles and presents them in a codified form.[27]
  • Emergent Issues: Some issues, such as rulings related to nationality and domicile, have no precedent in traditional fiqh due to their novelty. In such matters, jurisprudential researchers believe that fiqh plays a normative role, and the legislator enacts laws merely by considering the general principles related to the teachings of Sharia.[28]
  • Transformed Issues: The third category of issues that can be raised in the interaction between fiqh and law are those that have a precedent in traditional fiqh but have taken a different form in the complex relationships of contemporary society. Examples include the issue of "hawala" (transfer of debt), which is now presented in the form of checks, promissory notes, bills of exchange, etc., or labor relations, as well as discussions related to commercial companies. In such matters, it is said that applying jurisprudential regulations without considering the exigencies of the time will cause difficulties in lawmaking and governance and will lead to fiqh being accused of inefficiency. Therefore, the interaction between fiqh and law in these cases requires particular subtlety. According to religious researchers, fiqh will have an interpretive and supplementary role in such issues.[29]

Incompatibility Between Sharia and Law

The incompatibility between Sharia and law and the creation of practical challenges for governance are consequences of the ratification of constitutional and ordinary laws by parliamentary assemblies in the contemporary era. With the victory of the Islamic Revolution in Iran, the incompatibility between Sharia and law, which had been a problem for jurists since the Constitutional Revolution, reappeared. Examples include the disagreements between the Parliament and the Guardian Council during the Islamic Republic of Iran regarding some laws, such as the Urban Lands Law,[30] and the Labor Law. In these cases, the Parliament insisted on passing those laws due to the exigencies of the time and the expediency of the system, while the Guardian Council deemed them contrary to Sharia.[31] The incompatibility between individual jurisprudential rulings and the law is another challenge in this area. For example, the non-inheritance of a wife from real estate (the physical land of a man's property) has been a well-known principle in Shia jurisprudence;[32] however, the Civil Code states that a wife inherits from all of her husband's property, both movable and immovable.[33] Another example is that in Shia jurisprudence, the blood money (diyah) for a Muslim and a non-Muslim are not considered equal;[34] but the law has deemed them equal.[35]

Jurisprudential researchers have attributed part of the incompatibility between law and Sharia to conflicts between the law and definitive Sharia and the consensus of jurists,[36] and another part to the conflict of the law with some jurisprudential fatwas.[37]

In confronting the challenge of incompatibility between Sharia and law or fatwa and law, solutions have been proposed by jurists, jurisprudential researchers, and the drafters of the Constitution of the Islamic Republic of Iran to resolve this problem.[38] These include observing the expediency of the system,[39] separating the domain of law from fatwa,[40] making the law the final arbiter over fatwa,[41] issuing a governmental ruling,[42] and referring to a standard fatwa.[43]

These solutions can be categorized into two groups: resolving the incompatibility of law with Sharia and law with fatwa:

Observing the Expediency of the System to Resolve the Incompatibility of Sharia and Law

Observing the expediency of the system, or prioritizing public interest over religious rulings, is a solution proposed to resolve the incompatibility between Sharia and law. According to this solution, if social interests necessitate the implementation of a law that is incompatible with Sharia, the Islamic government can act beyond the secondary religious rulings to advance the interests of the system.[44] When the challenge between the Guardian Council and the Parliament regarding the Labor Law remained unresolved, Imam Khomeini, by prioritizing the expediency of the system over everything else, argued for the precedence of law over secondary religious rulings. He believed that as long as such expediency requires it, the government can temporarily prevent the performance of Islamic obligations.[45] For this reason, Imam Khomeini established the Expediency Discernment Council to resolve disputes between the Parliament and the Guardian Council and to address problems that could not be solved through ordinary means.[46]

This action by Imam Khomeini falls under the broader title of a governmental ruling. A governmental ruling is one of the institutions established in the Islamic Republic of Iran to resolve the conflict between law and Sharia. Accordingly, the Islamic ruler and the Supreme Jurist (Wali al-Faqih), to ensure the interest and conditions of the Islamic society, can issue case-specific orders and even temporarily suspend some religious rulings to regulate social relations in a way that responds to the needs of time and place. Of course, these rulings are not based on the personal taste of the Wali al-Faqih but are based on jurisprudential foundations, and there must be a basis in the body of Sharia rulings to justify them.[47]

Ways to Resolve the Incompatibility of Fatwa and Law

  • Separating the Domain of Law from Fatwa: Mohammad Hosseini Beheshti, an influential jurist in the drafting of the Constitution of the Islamic Republic of Iran, believed that with the establishment of the Islamic Republic and the existence of the leadership institution in the system's structure, the recognized authority (marja'iyyat) in Shia history is dedicated to individual and devotional matters. In social and political affairs, people should follow the leadership and the laws of the country. If their source of emulation (marja' al-taqlid) has a fatwa on social and political issues that contradicts the leader's fatwa, people cannot follow their marja's fatwa and must only follow the fatwa of the society's leader. This way, the conflict between fatwa and law will be resolved.[48]
  • Establishing a Council of Ifta or a Council of Maraji: After the establishment of the Islamic Republic of Iran, some jurists, such as Ali Akbar Meshkini, Naser Makarem Shirazi, and Jafar Sobhani, were of the opinion that to prevent conflict between fatwa and law, a Council of Ifta (fatwa-issuing council) should be at the head of the political system. Instead of the institution of marja'iyyat, it should be responsible for all social and individual affairs of the people.[49] Some also believed that determining the structure of the system, drafting laws, and administering society should be the responsibility of a Council of Maraji' (sources of emulation), which would collectively hold the leadership of the society.[50]
  • The Finality of the Law: Sayyid Jawad Varaei, a researcher in political jurisprudence, believes that to overcome the problem of the conflict between fatwa and law, the law must be recognized as the final arbiter. Of course, in his view, in the Islamic Republic, a law is recognized that is not contrary to Islamic standards and, after undergoing the legislative process, including approval by the Guardian Council or the Expediency Discernment Council, no jurist's opinion should be above that law. He believes, firstly, that in the realm of social affairs, the law is the criterion, even if citizens follow multiple maraji'. Secondly, everyone is equal before the law. And finally, a change in a fatwa will not cause a change in the law.[51]
  • Referring to a Standard Fatwa: Formulating laws based on a standard fatwa is another solution to resolve the conflict between jurisprudential fatwas and the law. Accordingly, legislative bodies are obliged to measure all laws against a fatwa that has been introduced as the standard. Various opinions have been presented regarding the standard fatwa, such as referring to an efficient fatwa, referring to the well-known (mashhur) fatwa and the fatwa of the most learned (a'lam), the fatwa of the Wali al-Faqih, and the like.[52]

Study Resources

Several books and articles have been written by jurisprudential researchers to explain the relationship between fiqh and law. Among them is the book "Fiqh and Law: Ideas, Proposals, and Methodological Solutions". This book is a collection of articles compiled by Ahmad Muballighi at the Islamic Research Center of the Majlis. Also, articles such as "The Relationship Between Fiqh and Law in the View of Religious Scholars" by Sayyid Jawad Varaei, "The Challenge Between Sharia and Law, An Analysis of the Nature of the Structure of the Islamic Republic" by Nafiseh al-Sadat Qaderi, Alireza Golshani, and Masoud Hemmat, "The Relationship of Sharia and Law in the Political Jurisprudence of the Constitutional Era" by Reza Khorasani, and the article "Fiqh and Law-writing" by Ahmad Haji Dehabadi are among these works.

See Also

Footnotes

  1. ↑ Ehsani and Tahan Nazif, *The Concept of Law from the Perspective of Imami Jurisprudence and the School of Legal Positivism*, p. 225.
  2. ↑ Fadel Lankarani, "The Relationship Between Fiqh and Law," Meftahe Keramat website.
  3. ↑ Al-Ghafuri, "Is it necessary for the law to be in accordance with fiqh, or is non-opposition sufficient?", p. 166; Sajjadi, "Fiqh and Legislation: Capacities and Limitations," pp. 56-57.
  4. ↑ Beigi Habib Abadi and Abedi, "The Relationship Between Fiqh and Law in Iranian Judicial Practice," pp. 482-483.
  5. ↑ Beigi Habib Abadi and Abedi, "The Relationship Between Fiqh and Law in Iranian Judicial Practice," p. 475.
  6. ↑ Alidoust, "From Fiqh to Law," pp. 95, 98.
  7. ↑ Fadel Lankarani, "The Relationship Between Fiqh and Law," Meftahe Keramat website.
  8. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," p. 52.
  9. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," p. 51.
  10. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," p. 190.
  11. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," p. 52.
  12. ↑ Khorasani, "The Relationship of Sharia and Law in the Political Jurisprudence of the Constitutional Era," p. 77.
  13. ↑ Al-Ghafuri, "Is it necessary for the law to be in accordance with fiqh, or is non-opposition sufficient?", pp. 168-173; Karimi, "A Study on the Juristic Ruling of Adherence to Governmental Law," p. 99.
  14. ↑ Na'ini, *Tanbih al-Ummah*, p. 105.
  15. ↑ Firahi, *Astaneh-ye Tajaddod*, pp. 318-319.
  16. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," pp. 192-196.
  17. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," p. 192.
  18. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," p. 193.
  19. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," pp. 193-194.
  20. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," pp. 194-195.
  21. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," p. 195.
  22. ↑ Muballighi, "The Relationship Between Fiqh and Law from Two Perspectives: Minimalist and Maximalist," pp. 195-196.
  23. ↑ "Supplement to the Constitutional Law," Article 2.
  24. ↑ "Constitution of the Islamic Republic of Iran," Articles 72, 91, and 96.
  25. ↑ "Constitution of the Islamic Republic of Iran," Articles 94 and 95.
  26. ↑ Vahdati Shabiri, "The Interaction of Law and Fiqh in the Islamic Republic of Iran," pp. 153-158.
  27. ↑ Vahdati Shabiri, "The Interaction of Law and Fiqh in the Islamic Republic of Iran," pp. 153, 157.
  28. ↑ Vahdati Shabiri, "The Interaction of Law and Fiqh in the Islamic Republic of Iran," pp. 153-154, 158.
  29. ↑ Vahdati Shabiri, "The Interaction of Law and Fiqh in the Islamic Republic of Iran," pp. 154-158.
  30. ↑ "Hashemi Rafsanjani's account of the disagreement between the Parliament and the Guardian Council in 1981," Entekhab website.
  31. ↑ "Labor Law," Majlis Research Center website.
  32. ↑ Fadel Lankarani, "The Relationship Between Fiqh and Law," Meftahe Keramat website.
  33. ↑ "Law Amending Articles of the Civil Code," Majlis Research Center website.
  34. ↑ Fadel Lankarani, "The Relationship Between Fiqh and Law," Meftahe Keramat website.
  35. ↑ "Article 554 of the Islamic Penal Code," Majlis Research Center website.
  36. ↑ Qaderi, "The Challenge Between Sharia and Law: An Analysis of the Nature of the Structure of the Islamic Republic," p. 69.
  37. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," p. 51.
  38. ↑ Qaderi et al., "Theoretical Mechanisms for Overcoming the Challenge Between Sharia and Law in the Political Thought of Imam Khomeini," pp. 29-31.
  39. ↑ Imam Khomeini, *Sahifa-ye Nur*, vol. 20, pp. 451-452.
  40. ↑ Mohajeri, *Javdaneh-ye Tarikh*, pp. 73-74.
  41. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," p. 64.
  42. ↑ Malek Afzali Ardakani, "Governmental Ruling in the Constitution and Its Place in the Constitutional Law of the Islamic Republic of Iran," p. 51.
  43. ↑ Arasta, "Standard Fatwa in Legislation," pp. 73-74.
  44. ↑ Qaderi, "The Challenge Between Sharia and Law: An Analysis of the Nature of the Structure of the Islamic Republic of Iran," p. 59.
  45. ↑ Imam Khomeini, *Sahifa-ye Nur*, vol. 20, pp. 451-452; vol. 21, p. 112.
  46. ↑ Hashemi, *Constitutional Law of the Islamic Republic of Iran*, vol. 2, pp. 537-538; Malek Afzali Ardakani, *A Summary of Constitutional Law and Introduction to the Constitution*, p. 252.
  47. ↑ Esmaeili, "What is a Governmental Ruling?", pp. 28-29.
  48. ↑ Mohajeri, *Javdaneh-ye Tarikh*, pp. 73-74.
  49. ↑ Varaei, *Collection of Documents and Records of the Drafting of the Constitution*, vol. 1, pp. 199, 109, 410-411.
  50. ↑ Shirazi, *al-As'ilah wa al-Ajwibah*, vol. 12, pp. 37-39; Shirazi, *al-Fiqh wa al-Qanun*, p. 270.
  51. ↑ Varaei, "The Relationship Between Fiqh and Law in the View of Religious Scholars," pp. 64-65.
  52. ↑ Arasta, "Standard Fatwa in Legislation," pp. 73-74.

References

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