Encyclopedia of Contemporary Jurisprudence

Turning Jurisprudential Rules into Law

Author: Ali-Riḍā Ṣāliḥī

  • abstract

Turning jurisprudential rules into law or legislating [based on] the Sharia is considered of the necessities of governance in the contemporary era in Islamic societies. In this process, jurisprudential rules take the form of law, and governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined for them. Shia and Sunni scholars are more inclined to permit turning jurisprudential rules into law with certain conditions, and in some cases, they even consider it necessary in the current era. Conversely, some jurists believe that it is not permissible to turn jurisprudential rules into law; because, according to them the laws of Islam are clear and enforceable and there is no need to re-legislate them. In addition, some do not allow the turning of non-controversial rulings of Sharia into law; but in the area of conflicting rulings, they have left it to legislative institutions to choose one opinion. Converting jurisprudential rules into binding laws based on the theory of permissibility has certain conditions and requirements, the non-observance of which undermines the effectiveness of jurisprudence for the administration of society. Among these conditions are the adoptions of fatwas in accordance with the principle of justice, paying attention to fatwas that create efficient laws, explicitness of the words of the law that is derived from jurisprudence, giving authenticity to the law against the fatwa, and avoiding uncommon statements and fatwas. Jurisprudence researchers have also listed obstacles for turning the Sharia into law, which include lack of a governmental perspective on jurisprudence, differences between fatwas and the plurality of authorities, and the uncertainty of the standard fatwa.

Explanation of the issue, its status and importance

Turning the Sharia or jurisprudence into an enforceable law and the reflection of jurisprudence in approved laws is one of the areas of legislation in Islam that attracted the attention of religious thinkers, jurists and lawyers with the introduction of the concept of law into the Islamic world.[1] According to researchers of law, Islamic jurisprudence was turned into law in the face of the new world for the purpose of continuation of jurisprudential rules in the contemporary society.[2] They believe that turning jurisprudential rules into legally binding laws is of the necessities of governance in the contemporary era in Islamic societies [3], and that the rule of law requires that all the affairs of the society be based on general and public laws and rules, based on which people can enjoy their rights and duties. Also, governmental affairs should be implemented through the law, and arbitrariness and aggression should be prevented.[4] Before the Constitutional Revolution of Iran, conversion of the rules of Sharia into law first began in the territory of the Ottoman Empire with the compilation of collections such as the Basic Law (Constitution of the Ottoman Empire) and the Mecelle-i Ahkām-ı Adliye (the Mecelle)[5] and was followed in other countries such as India, and Iran during the Constitutional era and the Islamic Republic through compiling laws such as the Civil Law.[6] [7] In the Islamic Republic of Iran, jurisprudential rules have turned into law in various constitutional, civil, criminal and commercial areas.[8] Jurisprudential rules are turned into legally binding laws with the aim of creating a guarantee of implementation for them.[9] According to religious researchers, mere compliance with Sharia does not guarantee the implementation of Sharia rulings. Therefore, it is necessary for Sharia rulings to find a legal form so that the government, in addition to the existing Sharia requirements, would introduce them as its wishes and take on the responsibility to comply with them.[10] Also, about the necessity of turning the rules into law, it has been said that since jurisprudence lacks subjectology and suffices with stating the rules, in order to adapt jurisprudential rulings to social realities, we need to turn these rulings into law.[11]

Challenges

Converting the rules of Sharia into enforceable governmental laws faces questions and challenges. These questions include: What is the nature of this type of legislation? Does the Sharia allow such legislation despite the existence of jurisprudential books and practical treatises? Do legislative institutions such as the parliament have the authority to convert the rules of Sharia into law? In case of permission, can every rule of the Sharia be turned into a law, and is the government responsible for the implementation of all obligations and prohibitions? Can private relationships between individuals, such as employee-employer relationships and giving the right to divorce to women, be converted to public laws? In the transition from jurisprudence to law, what is the role of public interests and the goals of the Islamic government? What are the requirements and conditions of converting the Sharia into law? What obstacles are there in the way of this type of legislation? Some of these questions and challenges have been addressed in the interaction between jurists and lawyers and in jurisprudential researches.

Conceptology

The conversion of Sharia into law, which is also referred to as legislating [based on] the Sharia, is the process through which the orders of Islamic Sharia and jurisprudence take the form of law, for which governmental requirements and guarantees of implementation (civil, administrative and criminal) are determined.[12] Converting Islamic jurisprudence into law has been considered as a process by which jurisprudence leaves its traditional form and becomes classified into topics and sections and exhibits itself in the form of articles, clauses and notes, and the result will be the use of jurisprudence by the entire society, not only by jurists.[13] Qarḍāvī, a Sunni jurist, has also defined converting jurisprudence into law as codifying jurisprudential rules in the form of legal articles hierarchically, with a certain order, and in the style of new laws[14]. In this regard, it has also been said that conversion of Sharia into law means that the rules of Sharia should be codified into orderly and legal phrases and articles, so that the ruler can issue mandatory orders based on them.[15]

Methods of converting the Sharia into law

Converting the Sharia into law has been depicted in three methods: Considering practical treatises as law and obliging people to comply with them: This method presupposes that the rules of Sharia are comprehensive and that the rules of Islam respond to all human needs.[16] Converting the issues mentioned in jurisprudence books into modern laws: This method is more commonly used today, and in cases where the Sharia is silent, the parliament has made legislations.[17] Legislation based on ijtihad: Those who support systematization and government jurisprudence consider this method to be suitable for converting the Sharia into law and believe that laws should be formulated based on systematic ijtihad, its results, and the needs of the Islamic government.[18]

Points of view

Shia jurists have presented several opinions about the permissibility or impermissibility of converting the rules of Sharia into law.

  • Most Shia and Sunni scholars tend to permit converting the rules of Sharia into law, and in some cases, they have even considered it necessary and beneficial in the current era; because, in this way, the power of the government is used to implement the regulations of Islam.[19] They believe that man does not have the right to invent laws due to lack of complete awareness of his interests and harms. However, the necessities of life require him to codify Islamic rules in the form of common human laws. They call the conversion of jurisprudential rules into law as a form of informing all the people about the rules of Islam and they believe that such work will make the rules of Sharia more efficient and effective.[20] According to Sayyid Mohammad Bāqir al-Ṣadr, a contemporary jurist, religious rules are either definitive, about which there is no jurisprudential difference of opinion and which are included within the text of law, or are part of the jurisprudential rules about which there is some controversy, and the legislative power is in charge of choosing one opinion.[21]
  • On the other hand, some jurists did not consider converting the Sharia into law to be permissible; because in their opinion, the laws of Islam are clear and enforceable and there is no need to re-legislate them. Also, since the members of parliament are non-jurists, they are not allowed to do so.[22] In the final assembly of the review of the Constitution of the Islamic Republic of Iran, some jurists such as Luṭfullāh Ṣāfī Gulpāygānī pointed out that the conditions of religious rules, such as enjoining what is good and forbidding what is evil, are specified in the Sharia. Therefore, they believe that it is no longer necessary to require the law to determine conditions and limits for their implementation.[23]
  • Amid the above two views, there are jurists such as Mīrzā Nā’īnī who consider the competence of the legislative body to be limited to variable rules that are subject to the interests and requirements of the time. They believe that the parliament does not have the authority to confer on legislation about the fixed rules of the Sharia.[24] In this regard, it is said that the explicit and definite rules of the Sharia, about which there is no considerable disagreement among jurists, are enforceable and there is no need for legislations about them.[25] However, there are no limitations or prohibitions on making laws about indeterminate and controversial rules, in order to determine the duties of people and the government.[26]

Obstacles

Religious researchers believe that the conversion of jurisprudential rules into law faces certain obstacles, the most important of which are the absence of a governmental view on jurisprudence, the difference of fatwas and the plurality of authorities, the change of fatwas based on the conditions of time and place, and the uncertainty of the standard fatwa. An individual view on jurisprudence: The predominance of an individual view in explaining jurisprudential rules and determining the duties of individuals without considering their collective identity by the jurist have been mentioned among the obstacles to converting the rules [of Sharia] into law. According to Ahmad Hājī Dihābādī, a researcher in Islamic law, due to the creation of some ambiguities when issuing a rule and implementing it, it is necessary to avoid to reflect, in the law, those rules that are written with an individualistic jurisprudential attitude. Moreover, a governmental approach to jurisprudence is required to convert jurisprudential rules into law.[27] The difference of jurisprudential fatwas: Adapting the approved laws to Islamic standards and regulations is one of the conditions for the correctness of legislation in the Islamic government. However, if there are different fatwas on one issue, which of them becomes the criterion for legislation? This is considered an important challenge and of the obstacles to converting jurisprudential rules into law.[28] The fatwa of the ruling jurist, the fatwa of the most knowledgeable Mujtahid (expert in islamic jurisprudence), the fatwa of jurists of the Guardian Council, the efficient fatwa, the fatwa according to caution and the well-known fatwa are among the solutions to this challenge that have been presented by researchers.[29]

Conditions and requirements

Based on the theory of permissibility, the conversion of jurisprudential rules into binding law has certain conditions and requirements, the non-observance of which will cause disruptions in the legislative process and damage to jurisprudence and law. It will also undermine the effectiveness of jurisprudence for the administration of society.[30] Systematic ijtihad;[31] adopting fatwas in accordance with the principle of justice; paying attention to fatwas that create effective laws;[32] complete familiarity with jurisprudence, law[33] and legal relations;[34] explicitness of the wording of the law derived from jurisprudence; preventing the approval of laws that give rise to crime,[35] giving authenticity to the law against the fatwa,[36] avoiding uncommon statements and fatwas, avoiding reprehensible legal eclecticism[37] and the existence of intermediary institutions between the legislator and the institution of jurisprudential ijtihad[38] are among the requirements and conditions of legislation based on jurisprudence that have been pointed out by religious researchers.

  • Systematic ijtihad: According to Ahmad Muballighī, a researcher in jurisprudence, in order to legalize jurisprudence, beside the ijtihad that exists in the seminary, we require a systematic ijtihad that is directed toward the collection and the laws surrounding a subject. He believes that law is not formed by one single fatwa; rather, we need a jurisprudential theory.[39]
  • Adoption of fatwas that are based on the principle of justice: According to Nāṣir Qurbān-nīyā, a researcher in jurisprudence and law, the legislator must set the principle of justice as the standard of lawmaking and, for this purpose, choose the fatwa that best covers justice, even if it is not the famous fatwa of the jurists. He believes that there are various jurisprudential theories, some of which can better ensure the efficiency and freedom of citizens and justice for them.[40]
  • Explicitness of the wording of the law that is derived from jurisprudence: Despite differences of opinion in jurisprudential fatwas, the legislator must use words that cannot be interpreted differently and controversially. Also, jurisprudential jargon must be avoided when converting jurisprudential rules into law
  • to avoid confusing the law enforcer.[41]
  • Recognizing the law as the final word: According to Sayyid Javād Vara‘ī, when Jurisprudential rules turn into law after approval by the Parliament, they must be the final word in social matters and no jurist’s idea should be above them, even if citizens follow various marjas and their marjas’ fatwas differ with the law.[42]
  • Avoiding reprehensible legal eclecticism: Reprehensible legal eclecticism means performing an act or presenting a ruling or statement that has been derived and combined from several denominations, such that that action or ruling belongs to none of those denominations and none of them considers it as right.[43] On this basis, a law that is made through combining the ideas of a number of jurisprudential denominations about a religious issue is, in fact, an ineffective law.[44]

Further reading

Converting Islamic jurisprudence into law first took place in the Majallat al-Aḥkām al-‘Adlīyyah by a group, consisting of seven Islamic scholars, based on Hanafi jurisprudence, in sixteen books and a total of 1851 legal articles. In later modifications to update it, however, the opinions of other denominations were also referred to, and a section on comparative jurisprudence was added.[45] After publication of the Majallat al-Aḥkām al-‘Adlīyyah, it was critiqued and evaluated by scholars of other denominations. One such critique is the book Taḥrīr al-Majallat by Muhammad Hussein Kāshif al-Ghiṭā who was a Shia scholar living in Najaf.[46] In this book, he explained, criticized and sought to comprehend the al-Majallat and presented the opinions of Shia jurists alongside the opinions of other Islamic denominations in a comparative manner in the framework of new laws. He also added twenty-three jurisprudential rules to the al-Majallat.

Bibliography

refrences

  1. ↑ Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, p. 173.
  2. ↑ Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, p. 158.
  3. ↑ Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 100; Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 31.
  4. ↑ Hāshimī, Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 3, p. 133.
  5. ↑ Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, pp. 36 and 38.
  6. ↑ Amīn, Tārīkh-i Ḥuqūq-i Iran, p. 542; Kāẓimī, Qānūn-i Madanī yā Fiqh-i Farsī: Jastārī dar Manābi‘ va Sākhtār-i Qānūn-i Madanī-yi Iran, pp. 256-259.
  7. ↑ Kātūzīyān, Ḥuqūq-i Madanī: Qavā‘id va Qarārdādhā, p. 232.
  8. ↑ ‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 726.
  9. ↑ Mamḥaṣānī, Falsafi-yi Tashrī‘ dar Islām, p. 343.
  10. ↑ Kāfī, Ta‘yīnāt-i Ijtimā‘ī-yi Fiqh va Qānūn, p. 70.
  11. ↑ Abulḥasanī and Fattāḥī, Taqnīn-i Sharī‘at dar Manẓūmi-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran: Mabānī va Rāhkārhā, p. 31.
  12. ↑ Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 159-160.
  13. ↑ Qarḍāvī, Madkhal lil-Dirāsat al-Sharī‘ah al-Islāmīyyah, p. 297.
  14. ↑ Qāsim, Al-Islām va Taqnīn al-Aḥkām, p. 73.
  15. ↑ Ismā‘īlī and Mīrluḥī, Āthār-i Pazīrish-i Qā‘idi-yi Nafy-i Khulv dar Niẓām-i Qānūnguḏārī-yi Iran, p. 78.
  16. ↑ Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 175-176.
  17. ↑ Ka‘bī, Mabānī-yi Ḥuqūq-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, p. 122.
  18. ↑ 18. Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 46; Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 185 and 191.
  19. ↑ Fayarḥī, Fiqh va Sīyāsat dar Iran-i Mu‘āṣir, vol. 1, p. 345; Ibid, vol. 2, p. 84.
  20. ↑ Ṣadr, Lamḥah Fiqhīyyah Tamhīdīyyah ‘an Mashrū‘-i Dastūr al-Jumhūrīyyah al-Islāmīyyah fī Iran, pp. 22-23.
  21. ↑ Ghamāmī et al., Imkānsanjī-yi Tabdīl-i Sharī‘at bi Qānūn, pp. 188-189 and 191.
  22. ↑ Idāri-yi Kull-i Umūr-i Farhangī-yi Majlis-i Shūrā-yi Islāmī, Ṣūrat-i Mashrūḥ-i Muḏākirāt-i Majlis-i Barrisī-yi Nahā’ī-yi Qānūn-i Asāsī-yi Jumhūrī-yi Islāmī-yi Iran, vol. 1, p. 409.
  23. ↑ Nā’īnī, Tanbīh al-Umma va Tanzīh al-Millah, pp. 135-138.
  24. ↑ Muhammadī Karajī, Ilzām Āvarī-yi Sharī‘at Qabl az Taqnīn yā Tadvīn va Rābiṭi-yi ān bā Aṣl-i Ḥākimīyyat-i Qānūn, p. 177.
  25. ↑ Ka‘bīnasab and Muhammadī Karajī, Barrisī-yi Ṣalāḥīyyat-i Majlis-i Shurā-yi Islāmī dar Taqnīn-i Aḥkām-i Shar‘ī, pp. 72 and 86.
  26. ↑ Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, pp. 103-105.
  27. ↑ Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 92-93; Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 105.
  28. ↑ Samāvātī and Mūsavī Bujnūrdī, Chālishhā-yi Ta‘yīn-i Fatvā-yi Mi‘yār dar Qānūnguḏārī …, pp. 43-58; Jahāngīrī and Banāyī, Fatvā-yi Mi‘yār dar Qānūnguḏārī: Inṭibāq bā Maṣāliḥ-i Ilzāmī, pp. 95-101.
  29. ↑ Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.
  30. ↑ Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.
  31. ↑ Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute.
  32. ↑ Ḥājī Dihābādī, Fiqh va Qānūn-nigārī, p. 112.
  33. ↑ Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/.
  34. ↑ Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.
  35. ↑ Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.
  36. ↑ Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.
  37. ↑ Muballighī, Bāyad Libās-i Ḥuqūq bar Tan-i Fiqh Pūshānd, http://ijtihadnet.ir/ .
  38. ↑ Ibid
  39. ↑ Qurbān-nīyā, Lavāzim-i Qānūnguḏārī bar Asās-i Fiqh, a scholarly conference at the Fahīm Institute
  40. ↑ ‘Azīzullāhī, Ta’thīr-i Qānūn-i Bargirifti az Fiqh dar Taḥaqquq-i Farhang-i Nuvīn-i Islāmī …, p. 734.
  41. ↑ Vara‘ī, Nisbat-i Fiqh va Qānūn dar Nigāh-i ‘Ālimān-i Dīn, pp. 66-67.
  42. ↑ Husseinī, Farhang-i Lughāt va Iṣṭilāḥāt-i Fiqh-i, p. 139.
  43. ↑ Bādpā, Ḍarūrat-i Qānūnguḏārī-yi Aḥkām-i Fiqhī va …, p. 43.
  44. ↑ Maḥmūdī, Rūyārūyī-i Guftimān-i Sunnatgirāyī va Tajaddud-Khāhī dar Sāḥat-i Fiqh-i Islāmī, pp. 163-166.
  45. ↑ Ibid, pp. 166-167.
  46. ↑ Kāshif al-Ghiṭā, Taḥrīr al-Majallat, vol. 1, pp. 39-40 and 110.
Retrieved from "https://ency.feqhemoaser.com/en/index.php?title=Turning_Jurisprudential_Rules_into_Law&oldid=161"