Note: The sixty-sixth session of “Method on Sundays,” with a focus on “evaluating the conformity of law with primary rulings,” was devoted to examining various views on the relationship between legislation and sharia. Hujjat al-Islam wal-Muslimeen Vara’i, in this session, by explaining the two approaches of “complete conformity” and “non-opposition,” based his own view on the sufficiency of laws not conflicting with established sharia rulings. In contrast, Hujjat al-Islam wal-Muslimeen Sarami considered this approach to cause the weakening of sharia supervision and emphasized the necessity of laws being sharia-based and the presence of jurists in the legislative process. Axes such as the role of supervisory institutions, the position of the standard fatwa, and the relationship between public interests and the purposes of sharia were also discussed in the question and answer section.
According to the information base of the Research Institute for Studies in Contemporary Jurisprudence, the sixty-sixth session of this institute’s “Method on Sundays,” with the topic “Process and Methods of Evaluating the Conformity of Law with Primary Rulings,” was held with the support of the “Development and Empowerment of Islamic Sciences” desk of the Islamic Propagation Office and in cooperation with the “Fiqh and Law Group of the Islamic Research Center of the Parliament.”
This session, as the seventh meeting of the series of sessions “Methodology of Legislative Governance Based on Sharia Standards,” was held on Sunday, 25 Aban, with the presentation of Hujjat al-Islam wal-Muslimeen Seyyed Javad Vara’i, professor of the Fiqh and Law Group of the Research Institute of Hawza and University, and the critique of Hujjat al-Islam wal-Muslimeen Seifollah Sarami, director of the Fiqh and Law Research Institute. The scientific secretariat of the session was undertaken by Hujjat al-Islam wal-Muslimeen Mohammad Kazem Haqani-Fazl, director of the Encyclopedia of Contemporary Jurisprudence.
Hujjat al-Islam wal-Muslimeen Haqani-Fazl, at the beginning, while offering condolences for the days of the martyrdom of Hazrat Zahra (s), referred to the process of the series of sessions “Methodology of Legislative Governance” and said: In previous sessions, various dimensions of the relationship between legislation and sharia were examined, and in the present session, the focus is on “how to measure and evaluate the conformity of law with primary rulings.”
The director of the Encyclopedia of Contemporary Jurisprudence, by posing questions including the criterion of sharia in legislation, the difference in methods of assessing primary and secondary rulings, and the structure and institutions responsible for this evaluation, provided the ground for entering the main discussion.
Subsequently, Hujjat al-Islam wal-Muslimeen Vara’i, while appreciating the Research Institute for Studies in Contemporary Jurisprudence and the session organizers, explained the foundations of his discussion and, by raising points as an introduction, added: Since legislation in an Islamic society must be based on sharia, there are two views regarding the relationship between law and sharia: first, those who consider the conformity of laws with sharia necessary, and second, those who consider the non-opposition of law with sharia sufficient.
He, referring to the main axis of the discussion, namely the position of primary rulings in legislation, divided primary rulings into two categories: “established sharia rulings” and “theoretical or disputed rulings.”
The professor of the Fiqh and Law Group of the Research Institute of Hawza and University then, referring to historical experiences and the practices of the first few decades of the Islamic Republic, enumerated the various methods of determining the standard fatwa—such as the famous fatwa, the fatwa of the most learned, the fatwa of the Vali Amr or the council of jurists—and explained the criticisms leveled against each.
He, by stating that “the mere execution of primary rulings is not the guarantor of realizing the goals of Islamic governance,” said: Legislation must be carried out based on public interests and with attention to goals such as justice, order, security, and prevention of oppression.
Hujjat al-Islam wal-Muslimeen Vara’i explained that in the system of the Islamic Republic, legislation is carried out by representatives elected by the people and with the cooperation of specialists, and the duty of this institution is supplying social needs within the framework of sharia.
According to him, it is sufficient that laws do not oppose established sharia rulings, and in non-established cases, the legislator can decide based on public interests. Vara’i emphasized that for the legitimacy of laws, the ratification by a valid jurist is sufficient, and there is no need for the fatwa to be considered as the criterion for enacting law in all cases.
In the continuation of the session, Hujjat al-Islam wal-Muslimeen Seifollah Sarami proceeded to critique the presented contents. He, while offering condolences for the Fatimiyyah days and appreciating the efforts of the organizers and the presenter, raised his critiques in several axes.
He considered the mixing of discussions such as sources of legislation and its relationship with sharia rulings, the issue of the standard fatwa, the structure and procedure of legislation, and the position of the governance ruling and its connection with experts as causing confusion in the presentation.
The director of the Fiqh and Law Research Institute, by emphasizing the necessity of “laws being sharia-based,” added: “If legislation is merely based on public interests and conformity with sharia rulings is disregarded, the nature of Islamic governance comes under question.”
Hujjat al-Islam wal-Muslimeen Sarami, referring to the absence of a guarantee for the presence of jurists in the legislative institution, said: “Given the criterion of public election by the people, it is possible for the parliament or the legislative institution to lack a jurist, and this issue weakens sharia supervision.”
He considered the separation of primary and secondary rulings “illogical and unenforceable” and explained that these two are intertwined, and in legislation, they cannot be examined independently of each other.
The director of the Fiqh and Law Research Institute ultimately considered the presented idea similar to the method of legislation in Western secular systems that are based on justice, order, and security but lack sharia obligation in them.
In the question and answer section, the attendees referred to important points: One of the attendees asked about the difference in views between legislative institutions and experts and how jurisprudential and expert disagreements can be resolved.
Also, a question was raised about the role of councils and higher institutions and whether the presented idea relates to the “law approval stage” or “its confirmation stage.”
One of the other attendees asked: “Is the interest considered in legislation a jurisprudential interest or a public one? And is non-opposition with sharia texts sufficient, or must the purposes of sharia also be observed?”
Hujjat al-Islam wal-Muslimeen Vara’i, in summarizing the answers, stated: “An effective fatwa must have sharia validity, and mere effectiveness does not suffice.”
He emphasized that law in topics such as family must be compatible with primary rulings so that the sharia goal is achieved; and executive interest should not be confused with the preparatory interest—that is, the cause of sharia rulings.
The professor of the Fiqh and Law Group of the Research Institute of Hawza and University considered the appropriate relationship among economic, political, and jurisprudential experts in the Islamic Consultative Assembly as requiring independent researches and added:
Islamic governance is obligated to supply justice, order, and resolve the needs of society within the framework of primary rulings, and legislator experts can enact laws based on the goals of sharia, without a specific fatwa being extracted for each law.
Hujjat al-Islam wal-Muslimeen Vara’i asserted: “In disputed cases, the ratification by one jurist can guarantee the legitimacy of the law” and considered the existence of an institution supervising the coordination of laws with the purposes of sharia as necessary.