A member of the Research Council of the Institute of Contemporary Jurisprudence states: The Islamic jurisprudence must adapt itself to the issues of the day because all legal systems have a historical evolution and take into account the issues of the day.
The meeting “Method of Converting Jurisprudential Propositions into Legal Materials” was held on Sunday, Bahman 15, 1402 /Feb. 4,2024 by the Research Institute of Contemporary Jurisprudence.
Mahmud Hekmatnia is a member of the Research Council of the Contemporary Jurisprudence Research Institute gave a speech in this meeting. The dear reader can read an excerpt of his speech below:
In Iran’s legal system, we have adopted a structure after the revolution that we have a subject law. There is no mention in the constitution that we should turn jurisprudence into a legal statement, rather the government exercises sovereignty in line with the rights of the people and within the framework of the political system. Therefore, in the constitution, the legitimacy of the laws is important, not that the government is obliged to convert jurisprudence into legal propositions.
Two aspects of converting jurisprudential propositions into legal ones
To convert jurisprudential propositions into legal articles, there are two procedural and theoretical aspects. We have to discuss the aspect of the process that is approved by the Guardian Council and the theoretical aspect. To facilitate the legislative process, we can turn our own civilizational achievements in the legal field into law. This is a simple task and it also makes the way easier because inferences have been made throughout history that are logical and, for example, there are many arguments in the field of sales and transactions that can be used.
In legal systems, in order for the legal system to be understandable and reasoned, both the epistemological aspect and the political governance of the legal system should be considered. What is meant by political sovereignty is that, for example, it is said that a law is supposed to be written for the framework of Iran’s political and territorial system. Of course, the sovereignty should not be confused with the political group, because in the group, only the interests of the group are considered, but in the political governance of a country, there are variations and differences of opinion and different denominations. Therefore, this system needs rules that should consider the ratio of people, land, nationality and moral values.
Does Islam have a legal system?
There are some propositions and fundamental rules in law that are also available in jurisprudence, but there are also some propositions such as freedom of speech and freedom of the press that do not exist in jurisprudence under this exact title. Therefore, we have to put a question in front of the jurisprudence, whether the institution accepts freedom of speech or freedom of the press or not? In this context, we need rational answers. We should also state the characteristics of jurisprudential propositions and the characteristics of legal propositions, and then say what are the requirements for their conversion?
For instance, the jurists in many cases, due to not having enough evidence for a fatwa, rule with caution. So the question is, how can these cautions be turned into legal propositions? Therefore, in my opinion, we should always keep in mind the method of converting jurisprudential propositions into legal ones. But there is also the issue of how to prove the necessity of these jurisprudential propositions. For example, in the field of hijab, although there is no debate about whether it is good, the question is whether if a woman does not wear hijab, does it cause legal harm or not? That is, can we turn this into a legal rule that if someone does not wear hijab, she should be punished? Therefore, there are some deep philosophical issues that must be taken into account in order to determine the essence of legal rules and to be able to solve them.
Another issue is whether Islam has a legal system or not. I believe that Islam has a legal system called jurisprudence. Also, this jurisprudence should adapt itself to the issues of the day, because all legal systems have a historical evolution and consider the issues of the day.
The need to pay attention to guaranteeing the implementation of the legal system
Hujjat al-Islam wal-Muslimin Alireza Piruzmand is a member of the faculty of the Higher National Defense University criticized the presented materials, which you can read below:
I believe that first, the issue should be made more specific and focused, and the guarantee of the implementation of the legal system should be considered at the heart of this system. Another thing is that the legal system is relevant where the government intends to intervene and implement legal laws. But to make the situation more specific, we must keep in mind that somewhere, a jurisprudential rule may have become a legal rule, but the government has no involvement in it. For instance, in Islamic jurisprudence, it is said that the dowry is the responsibility of the wise person, but today, with the spread of insurance, this law is not very relevant, and the government itself has guaranteed the payment of the dowry by creating insurance.
But in some Islamic countries, such as Iraq, it is still practiced according to this traditional ruling, and insurance and governance are not involved. Therefore, it is not necessary to bind the legal system to the fact that the government should intervene in it. Another point is that when we talk about the conversion of propositions, we must first raise the question of what ratio between jurisprudence and law is our presupposition to talk about conversion. Do we believe that law is fundamentally a matter of custom unless jurisprudence has entered it, or that law is a matter of jurisprudence unless jurisprudence has given authority to custom somewhere? Such views completely change the situation.
If it is said that jurisprudence should be used in the legal system, we must determine whether it is meant that jurisprudence is a guide or something more than that. Therefore, the relationship between jurisprudence and law should be well defined. Our problem in converting jurisprudential propositions into legal ones comes from the fact that, on the one hand, we have some rulings in our jurisprudence books, and on the other hand, in world experience, the principle is that the legal system is based on customs. Before the Islamic revolution, our legal system has also progressed on this basis.
The concept of legal system
The legal system is raised in a place where we define a boundary for people and say that if you cross this boundary, you have lost the rights of others. For instance, it is said that a businessman can import foreign cars as many as he wants, but he must pay a certain amount of taxes to the legislator, otherwise he will be punished. In such situation, both the importer, the consumer and the government have a right, but the question is, what is the relationship between jurisprudence and these types of laws, which are very diverse? This is a fundamental question that should be considered. I think there are two hypotheses here. One hypothesis is to say that jurisprudence is not supposed to express all legal relations, but we should give authority to jurisprudence within the framework of Shari’ah law.
The second assumption is that custom should play a role under jurisprudence so that jurisprudence can be extended in various times and places and changing conditions, but this custom that we are talking about is not a free custom that acts solely on the basis of expediency, but it is a legitimate custom which says that in order to extend jurisprudence and to build a civilization based on jurisprudence, we need a series of lower-level laws that are not necessarily stated in jurisprudence. In my opinion, the second case is more favorable, even though it is far from the mentality of our lawyers. In this assumption, the transformation of jurisprudence into legal propositions finds its own meaning and jurisprudence is no longer a capacity to produce legal rules, but because jurisprudence, or the great jurisprudence, stands at the head of the society, it must naturally have a comprehensiveness that it can cover the set of legal relations and nothing is left under its cover.