Alhassanain(p) Network for Heritage and Islamic Thought

Session 18: Requisites of Legislation and Its Station in Islam

In Islamic legislation the goal of law is to protect the material and spiritual interests of human beings. Subsequently, a question is raised: Who should be the legislator? There are different views regarding this. Generally, the credibility of two conditions among political and legal philosophers is common: One is that the legislator must be one who knows the purpose of law. The second is that he should not sacrifice the interests of society before the altar of personal interests.

Legislator’s qualifications as exclusive to God

Here, apart from taking into account the above two qualifications, Islam holds that the legislator must definitely be aware of all the material and spiritual interests of man and not favor personal and group interests at the expense of the interests of society. Islam also highlights the point that legislation is basically the right of the one who can bid and forbid human beings. Even if certain individuals have great knowledge of the interests of society and consider the interests of society as more important than individual and group interests, still the right of legislation does not essentially belong to them because every law consciously or unconsciously contains command and prohibition.

In the session in which we talked about the relationship between right and duty, we explained that every law explicitly, implicitly, or suggestively commands and prohibits. Sometimes it says, “Don’t encroach upon the property of people,” which is an explicit prohibition, or “Honor the property of others,” which is an explicit command. At times, the language of law is bidding and forbidding. For example, it says that the right of so-and-so is established so others should observe this right. This is a command which is embedded in law. Similarly, others are not supposed to transgress this right, and this is a prohibition which is embedded in law.

Thus, the legislator must have the right to bid and forbid others and this right essentially belongs to God. The first condition is that the legislator must have the most knowledge and awareness of the interests of men and the highest form of such a condition is present in God because He is the most knowledgeable of what is good for His servants. Also, the second condition is that the legislator should not consider the individual interests as more important than the social interests and the highest form of such a condition is present in God because He acquires no benefit from the actions of His servants.

For all people to be faithful does not benefit Him whatsoever. Also, for all people to become infidels does not harm Him whatsoever. Observing or violating laws does not affect Him at all. Meanwhile, the third condition is something which none except God intrinsically possesses, which is the right over others to bid and forbid. What right do some people have to rule over others? All are equal before God and it is He who is the Owner of all human beings. The entire human race solely belongs to Him and it is only He who has the right over people to bid and forbid.

In other words, human beings should recognize God’s Lordship and give His right of Lordship. Thus, Lordship manifests itself in two senses: one in the ontological sense; that is, man has to regard the management of the universe as intrinsically belonging to God. He should believe that God has set innate laws in the universe. The sun and moon move by His leave and command, and the transformations in the universe take place according to His will. Thus, He is the cosmic Lord and Cherisher of the universe, Master of the Command, and the Regulator and Maintainer of the universe. Similarly, he has to believe that God also has the legislative Lordship. During the previous session we discussed the point that legislative Lordship belongs to God and monotheism in the legislative Lordship requires that man should acquire ranks from God alone, obtain the law from Him, while the implementer implements it in society by God’s permission.

Objection on the necessity of legal authorities’ plurality

This gives rise to skepticism thus expressed: You say that the law must be enacted by God for this is what monotheism in the legislative Lordship demands, but we see that in society we need laws which God has not enacted. The people enact these laws and were they not to do so, society would be left in abeyance. For example, so many laws in our Islamic society are enacted by the Islamic Consultative Assembly. These laws, needed by society, have not been enacted by God and the Prophet (s ) and an illustrious example of these laws which everybody is familiar with are traffic laws. Without the existence of these rules, there would be so many accidents in the world endangering the lives and assets of people.

On the one hand, society is in need of such laws, and on the other hand, God has not enacted these relevant laws. Any driving and traffic rule is present neither in the Qur’an nor in the words of the Prophet (s ) and the Imams (‘a ). So, how can all laws be divine and godly and enacted by God? If common laws enacted by human legislators are also binding, it follows that we have two sources of legislative authority; one is God and the other, the people-which according to you is tantamount to polytheism in religious legislation. This skepticism is expressed in various forms, and already been addressed, but unfortunately, it is not understood the way it should be.

Reply to the first objection

In replying to the legitimate question raised, we need to pay attention to two points. One is that the law has numerous terminologies. Sometimes, law is referred to as general rules and does not include specific laws, executive orders and instructions. At times, the term “law” is so broadly understood that it includes even an administrative instruction issued by the head of an office to his subordinates. In other words, law is a term with general and specific meanings and both are correct.

The second point is that in Islam there is a set of fixed laws which under no circumstances can be amended. They are fixed for all people and at all times. There is also a set of alterable laws which follow the circumstances of time and place. While keeping in view the general principles elucidated in Islam, themujtahidin , religious scholars andfuqaha have to legislate and enact these alterable laws.

What needs emphasis is that fixed laws are promulgated by God, and general frameworks are to be determined for alterable laws. It is impossible for all fixed and alterable laws to be enacted by a legislator uniformly and evenly all over the world. The alterable laws needed at all times and places are not limited and confined. The mental and intellectual capacity of man cannot contain all alterable laws needed from the beginning to the end of the world. As such, every part of these laws must be enacted at a particular time.

Assuming that during the early period of Islam when there was no trace of automobiles and vehicles, if it was said that drivers must keep to the right, the people would never understand and comprehend it. These laws must be enacted in every period according to specific requirements and circumstances, but they have a framework already determined by God. Those who enact these laws should follow that framework. There is a set of values which should not be neglected. This important task should be shouldered by those who know the fixed laws and the framework for alterable affairs better than everyone else.

Thus we mean that laws, which are divine and from God, are fixed and eternal laws. Secondly, God has already determined the framework for alterable laws which are the criterion for identifying the merit of alterable laws. In this regard, the Qur’an has an emphatic expression:

﴿وَوَضَعَ الْمِيزَانَ ٭ أَلَّا تَطْغَوْا فِي الْمِيزَانِ﴾

“And set up the balance, declaring, ‘Do not infringe the balance!’ ” 1

What the divine and monotheistic outlook emphasizes and demands is that since law includes both command and prohibition, the one who has the right to enact law is he who has the right to bid and forbid the people and that is no one but God. Human beings have essentially no right to bid and forbid one another, let alone enact and implement laws. If alterable laws suitable to the requirements of time and place are supposed to be enacted, the authority to enact laws must come from God because it is He who has the intrinsic right to command and forbid. He has to grant others that right so that laws they enact become binding.

Second objection: absence of God’s will in legislation

Another objection being raised is that considering the authority of God as a requisite in legislation is nothing but empty rhetoric. It is not that given this requisite, changes are really taking place in the legislative process. Mere playing with words is taking place. For example, in the Islamic Consultative Assembly a certain number of people gather and deliberate what law they will enact about a particular alterable social affair at a given period.

Finally, they enact a certain law. What difference will it make whether God has granted authority or not? This is mere rhetoric. The criterion of the law’s credibility is that a number of experts examine the pros and cons and enact a law after identifying its merits. Is there any difference whether this law is enacted by individuals who have so-called legislative authority, or by other experts? The objection is noteworthy.

Reply to the second objection

The objection asserts that for a person to authorize another to do a certain work does not change the reality of the work. I ask, can social life be established without these authorizations? Assume that a person has parked his vehicle and you need it due to an emergency. Can you drive his vehicle without his permission, go, attend to the emergency, and return? Prior to his permission, do you have the right to use his vehicle? If you used it without his permission, then you did something against the law, giving him the right to sue you in court and ask for your conviction because he had not given you permission.

Consider as another example a man and a woman who want to marry each other. They have known each other for years. They have been working together in an office and are familiar with each other’s character. They are well- acquainted with each other’s families. Yet, as long as the wedding contract is not signed or a ceremony acceptable in their custom not held, their intimate relationship will be illegitimate. It is true that the marriage contract is mere verbal pronouncement that is observed through the consent of both parties, but it is an utterance that renders thousands of unlawful things lawful and also thousands of lawful things unlawful.

The social life of man depends on the same authorization. In principle, social life exists through the same authorization, permission, signing, and rejecting. Another example; assume that somebody is supposed to be appointed as your city mayor, but his letter of appointment is yet to be issued and the meeting for his appointment is awaited, does he have the right to go to the mayor’s office, occupy the mayor’s seat and start working? He has no such right and the employees will kick him out and say, “This is the table of the mayor!”

If he says, “This table belongs to me, and a month from now I’m supposed to be your new mayor,” they will reply, “As soon as we receive your appointment, you will be our mayor.” If he says, “It’s only a matter of a signature and authority to be issued by the minister.” They will say, “Yes, it’s the same signature that will give you authority.” All social transactions acquire official status through a signature; so with legislation. When legislation is a prerogative of God, as it really is, only through His authority can rules enacted by others become binding; otherwise, those rules will never acquire legitimacy and credibility:

﴿قُلْ ءَاَللّهُ أَذِنَ لَكُمْ أَمْ عَلَى اللّهِ تَفْتَرُونَ﴾

“Say, ‘Did Allah give you the sanction [to do so], or do you fabricate a lie against Allah?’ ” 2

In the absence of God’s authority, what right do you have in saying that a certain act is permissible or not,halal orharam ? This is the meaning of enactment of law-that is, this act is permissible while that act is not permissible. In simple terms, this ishalal and that isharam . In the absence of authorization from God, can you issue such decrees? The difference between the Islamic Consultative Assembly and the National Assembly of the ex-regime lies in this-this assembly is formed through the one who is designated by God.

That is, thewali al-faqih gives it the permission to enact alterable laws and his authorization gives credit to the bills of the Islamic Consultative Assembly. Once thewali al-faqih is granted this right by the Imam of the Time (may Allah expedite his glorious advent), others do not have such a right. Also, once the Imam of the Time (may Allah expedite his glorious advent) is granted this right by God, others do not have such a right. The one who has been authorized by God directly or indirectly can exercise authority with respect to the affairs of others and command them to do or not to do a thing. But the one who has no authority has no right to bid and forbid, and his command and prohibition are not binding.

(In my theoretical discussions, I do not want to cite quotations from individuals, but Imam Khomeini cannot be placed in the rank of other individuals. His statements were derived from the Book and theSunnah . As such, I shall quote his statements.) In one of his speeches, he explicitly said: “If the President is not designated by thewali al-faqih , he istaghut and it is not permissible to obey him.”3

The President is elected by the people through a general suffrage, but if he is not granted authority by thewali al-faqih , he istaghut as said by the Imam. His command and prohibition are not binding and it is not permissible to obey him. In all his decrees of confirmation [tanfidh ] of the President, the Imam said: “I do hereby designate [nasb ] you.” (In some instances, he stipulated: “By virtue of the divine guardianship [wilayat-e ilahi ] I have, I do hereby designate you to the Presidency.”) This was in spite of the people’s vote, and their vote was confirmed to be valid

Of course, the people are supposed to participate in social activities. It is their religious duty to get involved in elections. As such, during elections, the Imam would say: “It is a religious duty to participate in the elections. In the end, however, the religious credibility of the act of every legislator or designated authority must be traced back to God for it is He who is the Authority in the world. God has granted the Prophet (s ) and the Imams (‘a ) the authority to rule and legislate. The other person would be one designated by the Prophet (s ) and the infallible Imam (‘a ) through a general designation such as in the case of thewali al-faqih, or through a specific designation as in the case of the governors and deputies during their time. Such a person acquires legitimacy through the authority of any of the infallible personages. Once he is given authority, he acquires credibility.

So, having or not having authorization, having approval or not is the difference which exists in all social issues. What is the difference between a “mayor” whose appointment is not yet announced and the others? What is the difference between the “Minister” of Training and Education whose appointment is not yet announced and the others? It is true that the appointment is soon to be released but today he has no right to engage in any kind of official transaction. When he receives his letter of appointment, he will be officially commissioned and by means of a single signature, exercise authority over the public treasury.

A person may turn over his millions worth of property to you, and grant you the authority to spend it in whatever way you like. He may also give it as a public endowment. In any case, by uttering a single sentence, “I do

hereby give my wealth,” everything is finished, and to exercise authority over his wealth becomeshalal and permissible. But in the absence of his authority and grant, it isharam to exercise authority over his wealth. Anyone who exercises authority over his wealth shall be deemed criminal. In general, all social affairs follow this sort of authorization. In the absence of this permission and authority, nothing in social affairs can be deemed official. Given this, how can it be said that anyone who under the name of God wants to rule over the people and bid and forbid them is needless of any authority?

Is it possible to rule over the servants of God without His permission? As the people are not our servants, we have no right to rule over them. They are servants of God. The ruler and the ruled are equal before God. In the absence of God’s authorization, the president and the presided, the leader and the led are equal. When God authorizes a person, his command and prohibition become binding on others.

Man’s mastery over his destiny

Another issue is the concept of man’s mastery [hakimiyyah ] over his destiny raised in newspapers and even in some speeches of the intellectuals and roundtables organized by the Islamic Republic of Iran Broadcasting (IRIB) saying that “human liberties are honorable because according to the Constitution, people are masters over their destiny,” It is thus, necessary to explain the various dimensions of this subject.

The word “hakimiyyah ” (mastery or sovereignty) is discussed in two fields of law. (Of course, since the two terms are synonymous, those who do not have enough information tend to use them interchangeably.) One is in public international law in which it is said that every nation has mastery over its destiny (sovereignty). As a principle in public international law, this term governs the relations between countries, their position in relation to one another and against imperialist countries.

During the 18th and 19th centuries, especially in the Western world, the sphere of colonialism was extended. Any state that possessed power and force occupied a land at the point of the bayonet or through trick and ruse, or placed a satellite state there, or sent its envoy to rule over there. That is, the destiny of a nation was controlled by others, or it became the protectorate of another country. In essence, the term “mandate” [qaymumiyyah ] is a term used in international law. After the people became aware of this global oppression and rose up to claim their rights, the principle of sovereignty of nations was raised.

Gradually, it was established in international law that every nation had mastery over its own destiny. That is, others have no mandate or colonial right over any nation. “National sovereignty” means that every nation is independent in relation to another and has mastery over its own destiny. No nation has the right to regard itself guardian of other nations and no state has the right to consider itself mandatory of other states .This is the terminology used in international relations.

The second term is sovereignty of individuals within a society. This principle is related to basic rights. A society is comprised of factions and groups, but no faction or group has the right of dominance over another

faction or group. This is opposed to the class-oriented views that existed in many countries throughout the world in which the ruling class was already specified and defined. For example, a family with one thousand members had the right to rule and anyone who wished to rule had to belong to that class. The rulers belonged to the noble class, landowners, or a specific race. This principle of mastery of every person over his own destiny negates the dominance of a particular class or person. So, within society no person can automatically say, “I have dominance over other people.” No group, class or race has the right to regard itself dominant over other groups, classes, or races. This is the principle of human rights.

All these rights and principles apply to the relationship between human beings, and not the relationship between man and God. Those dealing with these principles-whether they profess any religion or not-have never considered the relationship between man and God, let alone saying that God also has no right to exercise sovereignty over man. They were not interested in it. Instead, their interest was determining relations between people-i.e., did a country have the right to exercise sovereignty over another country? Did a certain group, faction, class or individual have the right to dominate others and shoulder the burden of determining their destiny?

That every person is master over his or her own destiny does not mean that God also does not have that right. Now, let us assume that all those who drafted these laws and stipulated these principles professed no religion and did not believe in God. But it is enshrined in the Constitution of the Islamic Republic that the people have mastery over their own destiny, provided God is the absolute Sovereign. The evidence is the tens of provisions in the Constitution which stipulate that divine laws must be implemented. Given the existence of these provisions, how can a person imagine that this right of sovereignty stipulated for individuals negates the sovereignty of God?! Can any intelligent person have such an understanding of the Constitution of the Islamic Republic?

Lack of contradiction between mastery of man and sovereignty of God

For clarity sake, I shall cite an example from psychology on the issue of “self-confidence”. It is said that man should have self-confidence. This sentence can be heard and read in books more than often. One of the outstanding pivots and dimensions of many discussions conducted daily in radio and television, especially in discussions on child-rearing and family discourses, is relevant to the issue of self-confidence. For example, it is said that a child must be brought up in such a manner that he or she acquires self-confidence.

Dealing with the youth must be such that they acquire self-confidence. Similarly, when raising moral issues it is much emphasized that individuals must have self-confidence and must not depend on others. Meanwhile, in Islam we have another concept called “trust and reliance in God” [tawakkul ]. That is, man should not expect anything from himself vis-à-vis God. He has to seek everything from Him and to regard Him as the Omniscient and Omnipotent:

﴿وَإِنْ يَمْسَسْكَ اللّهُ بِضُرٍّ فَلاَ كَاشِفَ لَهُ إِلاَّ هُوَ وَإِن يُرِدْكَ بِخَيْرٍ فَلاَ رَآدَّ لِفَضْلِهِ يُصِيبُ بِهِ مَن يَشَاءُ مِنْ عِبَادِهِ وَهُوَ الْغَفُورُ الرَّحِيمُ﴾

“Should Allah visit you with some distress, there is no one to remove it except Him; and should He desire any good for you, none can stand in the way of His grace: He grants it to whomever He wishes of His servants, and He is the All-forgiving, the All-merciful. ” 4

Benefit and loss comes from Him and the will of man vis-à-vis the will of God is nothing. Compared to the majesty of God’s other creatures, he is utterly insignificant. In the teachings of Islam and the Qur’an, there has been an endeavor for man to be trained in such a manner that he always regards himself insignificant, humble and abject before God. The foundation of Islamic training rests upon the Lordship of Allah and the servitude of man.

They might ask: How is it possible for man to have self-confidence and at the same time regard himself insignificant before God? Is belittling oneself before God consistent with self-confidence, self-esteem, personality development, and similar concepts tackled in psychology especially in educational psychology?

This is similar to the objection they raised about sovereignty [hakimiyyah ] which belongs to political issues and is related to the question of dominance over a person while this objection is raised in relation to psychological, moral and educational issues. Concerning the psychological question, the emphasis is on self-confidence vis-à-vis reliance on other people-the child must be trained in such a manner that he or she does not need to rely on his or her parents, friends, neighbors or relatives and can stand on his or her own feet. That means not to rely on other people and be dependent on them; but it does not mean to regard oneself independent of God.

Essentially, the discussion is related to a person’s relationship with other people. The concept of “self-confidence” means that you should behave and train yourself in such a way that you do not rely on others, and this is also emphasized in Islam. In the conduct of the Prophet (s ) and the pure Imams(‘a ) it is highlighted and emphasized, but unfortunately, we pay little attention to them, thinking they have been newly arrived at by the West.

During the time of the Holy Prophet (s ) his companions were trained in such a manner that if someone was riding a horse and the whip in his hand fell on the ground, he would not ask his comrade who was moving beside his horse to pick it up for him. He would dismount, pick up the whip and ride again! This is the Islamic training which urges us to stand on our own feet, to carry our own load, not to be dependent on others, and not to covet others. But this does not mean that we should also regard ourselves independent of God:

﴿يَا أَيُّهَا النَّاسُ أَنتُمُ الْفُقَرَاءُ إِلَى اللَّهِ وَاللَّهُ هُوَ الْغَنِيُّ الْحَمِيدُ﴾

“O mankind! You are the ones who stand in need of Allah, and Allah-He is the All-sufficient, the All-laudable. ” 5

Is it possible for man who is in a state of total poverty and need to regard himself needless of God? This is also a form of polytheism. Not to rely on

God is diametrically opposed to the spirit of Islam and the entire message of the Qur’an. There are hundreds of Qur’anic verses and traditions in this regard which enjoin man to regard himself as nothing before God and to ask Him for everything. Self-confidence is meant to determine the relationship between human beings, and teach them not to rely on other people because no one is more capable than another.

This is the reply to the question on self-confidence and reliance on God Similarly, in the realm of political issues such as that of individual sovereignty and national sovereignty, the case is the same. National sovereignty means that every nation should stand on its own feet and others should not exercise a mandate over it. Individual sovereignty means that a person has no spontaneous right to rule and dominate others. It means the individual and national right of sovereignty is subservient to the sovereignty of God. In essence, sovereignty belongs to God, and by extension, anyone who has been given authority to rule has the right to rule to the extent that God has granted him. In the absence of God’s permission, no person has the right to dominate another person.

References

1. Surah ar-Rahman 55:7-8.

2. Surah Yunus 10:59.

3. Ṣahifeh-ye Nur, vol. 9, p. 251.

4. Surah Yunus 10:107.

5. Surah Fatir (or al-Mala’ikah) 35:15.

Session 8: An Elucidation of the Structure and Form of Government

Status of elemental and evidential definition

In this session our discussion is about the structure and form of the Islamic government. Along this line, I deem it proper to narrate a recollection from the Great Leader of the Islamic Revolution in Iran, Hadhrat Imam Khomeini (q ). During the beginning of the Revolution foreign reporters asked the Imam, “After overthrowing the monarchical government, what government and regime will you establish?” He replied, “A government like that of the Commander of the Faithful (‘a )”.

Defining and describing the Islamic government to reporters with a particular culture and social fabric and no mental preparation to grasp Islamic concepts in view of their fundamental differences with us in this context, required many hours. Yet, the Imam gave them a complete and convincing answer in one sentence, because by knowing the distinctive features of the government of the Commander of the Faithful (‘a )-which is known to both friends and foes, and to know which does not require much extensive study and examination-the model of our government could also be known.

This type of explanation and definition, i.e. evidential definition, is the simplest way of describing the nature of a thing to the masses because understanding intricate concepts is difficult for them, so by indicating external manifestations and samples, they understand better. For example, in order to explain electricity, we show them an electric light or an electric device. In this type of definition, the characteristics, properties and salient features of a thing are not mentioned. In the academic and scientific circles, however, the definition must be derived from the principal or secondary features which describe the genus and quality mentioned in logic. In this kind of definition, initially the general and broad meaning is mentioned and then the specific meaning that excludes other types.

Another way of identifying the nature of a thing is to consider the elements. That is, the essentials and features of a thing are examined and their totality serves as the definition of that thing. In view of the number and scope of the essentials and features, any person will conclude that any thing having those features has the nature under consideration.

Islam and theory of separation of powers

The macrostructure of the Islamic government and its basic features, or the Islamic theory on politics can be defined in one sentence. The Islamic theory on politics is: all aspects of politics and government are divine, and inspired by the Source of revelation. This point determines the Islamic nature of the system and government.

In describing comprehensively the Islamic government it is necessary to consider the theory of separation of powers mentioned in the philosophy of law. During the last centuries there were intense disputes and conflicts among legal philosophers over concentration or separation of powers. These were on whether all powers should be in the hands of an individual or

group, or powers should be separated from one another and every person or group should be concerned with only one power.

Finally, after the Renaissance, particularly after Montesquieu-who wrote a major treatise entitled “The Spirit of the Laws” (1748) in which he emphasized separation of powers-legal philosophers arrived at a consensus on separation of powers and their three divisions, viz. the legislative, the judicial and the executive. These were considered as the main branches of democratic and popular governments.1 For each of the powers a distinct realm and area was taken into account so that none of the powers was authorized to interfere and meddle in another’s domain and their independence officially recognized. After the separation of powers, a definition was presented for each of them. We shall briefly mention their functions below:

Legislative power

One of the important pillars of government is the legislative. In view of the continuous change in social life and the need to formulate appropriate laws for every change, a group of individuals sit together, and, after discussion and deliberation, enact laws and regulations for the management of society, which are official and binding.

2. Judicial power

After the codification of laws and their official recognition and accreditation, there is a need to consider a branch of government and apparatus to adapt general laws to particular cases, to identify rights and duties, and to remove differences and disputes. In case of a dispute among citizens, or among organs, or between the citizens and the government, as well as in relation to the violation of the rights of people, the only authorized agency to adjudicate, attend to and adapt laws to those cases is the judicial power. Mere ratification of laws in parliament cannot solve any problem, because in times of dispute and discord, everyone deems himself rightful and interprets the law in his favor.

3. Executive power

Undoubtedly, In order to achieve its objectives, society is in need of law, but all people do not observe the laws. In fact, there are various motives to violate them. The law needs an executive power which possesses sufficient clout to implement the rules and regulations. The executive power is expected to implement laws, deter violations and implement judicial decrees passed in judicial courts. Along this line, if naked force is needed to implement laws and punish violators and criminals, disciplinary forces can be employed.

We briefly stated the theory of separation of powers in democratic and popular systems. We do not intend to explain the Islamic viewpoint on the theory of separation of powers but we deem it necessary to note that in the Constitution of the Islamic Republic of Iran, the principle of separation of powers has been accepted, while the principle ofwilayah al-faqih , which emanates from the Islamic nature of the system, serves as the point of connection between the powers. Legitimacy of powers in the Islamic system lies in the Islamic and divine structure, and in a sense in their connection to

the Origin of creation, butwilayah al-faqih is the system’s link to God and its basis of legitimacy.

Once we talk about the enactment and implementation of laws in the realm of Islamic political system and claim that the aggregate of approved laws and rules should be Islamic and religious, we make it clear that Islam is concerned not only with issues pertaining to prayer and fasting, worship and supplication, but it is a comprehensive code of life that embraces social law, corporate law, civil law, commercial law, international law and other laws needed by society.

Thus, as principle and rule, we have accepted that Islam has social laws that bind the government to regard them as credible and strive to implement them. According to Islam if a government neither regards the laws of Islam as credible, nor strives to implement them, it is an illegitimate government.

Skepticism on alleged impotence of Islam in social administration

Here the expressed skepticism is that man is increasingly in need of ample new laws. Indisputably, in the text of the Qur’an, theSunnah of the Prophet (s ) and the sayings of the pure Imams (‘a ) not all the laws addressing the needs of the day can be found. Nowadays, man needs a set of laws whose subjects did not exist during the early period of Islam, for which specific rulings need to be issued.

For example, let us consider the laws pertaining to airspace and the air jurisdiction of countries. Does an airplane have the right to enter the air jurisdiction of another country with the permission of its authorities or not? Such laws basically do not exist in the Qur’an, the Prophet’sSunnah and sayings of theAhl al-Bayt (‘a ) because at the time, there was no airplane to be discussed.

The same applies to traffic and driving rules as there was no car at the time as well as laws on seas and outer space and other subjects and there is a need for legal experts and legislators to enact appropriate laws for them after thorough examination and contemplation.

Given the fact that the said laws that address all needs of society do not exist in the Qur’an and theSunnah , how can it be claimed that Islamic and divine laws must be implemented in society when in fact Islam has no law in so many areas?!

Society is in dire need of such laws, which we cannot find in Islamic sources. What options do we have? How can we consider ourselves as bound by Islamic laws?

What has been mentioned made those who have no faith in Islam express skepticism in religious laws as impractical and insufficient to administer society, and suggest more efforts be exerted on enacting and implementing man-made laws. In order to portray the subject as confusing and complicated, they expressed the above skepticism in various forms, and people also exacerbated it for different motives.

Undoubtedly, their goal is to undermine the Islamic government and to inculcate the notion that Islam cannot administer society. Therefore, the plant if the Islamic Revolution and Islamic government and emphasis on it

is futile and the idea of “Islamization” of the government should be forgotten, because it is not feasible. Unfortunately, some sympathizers of the Islamic Revolution and followers of Islam have also been influenced by this skepticism. It is necessary to present an appropriate reply so that, they remain faithful to Islamic laws, and find solutions to cases in which society needs a law which has no precedence in Islamic sources.

Types of laws and necessity of enacting variable laws

In reply to the above skepticism, it is necessary to explain at the outset that law has a general and broad meaning which also includesnatural laws such as laws on physics, Lavoisier’s2 law on chemistry, Newton’s law of gravity and Einstein’s law of relativity. This group of laws that exist in nature and can be empirically proved are discovered by scientists and are not enacted. These fixed and actual laws are related to natural phenomena, and have nothing to do with legal, political and social laws.

Similarly, we are not referring torational laws such as laws on logic, philosophy and mathematics. We are referring toenacted laws which are technically called “conventional laws” [qawanin-e i‘tibari ]. Of these laws those that are credible and can be implemented, provided they are enacted by a credible authority, can be divided into three types:

The constitution

Constitution means a set of relatively permanent laws codified by competent authorities for a country in accordance with its culture and traditions. These relatively permanent laws are binding for a long period and considered as the basis and foundation of managing society. In view of their relative permanence and immunity from regular changes, these laws are general and limited; thus, the constitution of every country consists of some basic and important articles.

As such, in the constitution there is no room for detailed and specific laws which cover extensive and diverse needs, and are subject to amendment with the emergence of new circumstances. The Constitution is general and permanent in nature and detailed laws are not included in it except those detailed and limited laws which, on account of their importance and special status, give stability to it.

2. Laws ratified by parliament

The second type refers to the laws ratified in the Majlis or parliament. Since some countries have another house of legislation called senate or any other term, in addition to parliament, the laws ratified by the said house of legislation are also included in this type of laws. In our country, apart from the Islamic Consultative Assembly (Majlis) which passes bills needed to administer the country, the Council of Guardians, which is similar more or less to the Senate in other countries and to a constitutional court and consists of a group of jurists and legal experts, conforms the bills ratified by the Islamic Consultative Assembly with the Constitution and religious law. In case of inconsistency with the Constitution and the religious law, it refers these ratified bills back to the Majlis for review.

3. Laws ratified by cabinet

In addition to the laws ratified by parliament, in every country there are binding rules and regulations ratified by other organs, for example, the executive orders issued by the cabinet (executive branch). The constitution has rested authority to the cabinet to ratify laws in specific cases. Similarly, in certain cases the president can also personally take decisions. These executive orders and presidential decrees need not be submitted to parliament for ratification as they are automatically deemed legally binding. Also, bylaws and circulars approved by concerned authorities and officially communicated to offices and executive offices are also called laws and the government is bound to implement them.

Thus, in our country as in some other countries there are three types of laws: (1) constitutional, (2) legislative; laws ratified by the Islamic Consultative Assembly (Majlis) or parliament, and (3) executive orders, presidential decrees, bylaws and circulars approved by authorities legally authorized to do so.

At no time and nowhere in the world are these laws and bylaws ratified all at once; in view of changing circumstances, statutory laws and executive orders are amended and reviewed. Today, circumstances may require the Islamic Consultative Assembly to enact a law, and tomorrow circumstances may change and the said law might be amended and reviewed. In this manner, executive orders have to be amended and reviewed with change of circumstances. Also, when a new president assumes office, it is his prerogative to amend or annul previous executive orders.

Of course, those whose primary concern is the interest of society try their best to codify orders with utmost care to ensure that they are devoid of all possible errors. Naturally, when we say that the laws must be Islamic, it does not mean that all laws ranging from the Constitution to the statutory laws and executive orders must be explicitly derived from the Qur’an.

Meaning of Islamic nature of laws

In explaining the meaning of the Islamic nature of laws and orders, it is important to pay attention to the process of enacting common laws. For example, in codifying and approving bylaws and orders the cabinet or executive power must act within the perimeter determined for it by the Islamic Consultative Assembly and not go beyond it. In other words, the extent of the executive power’s prerogatives has been stipulated by the Constitution and the Majlis’s statutory laws, and the executive orders should be within this framework.

These orders should manifest the generalities reflected in the Constitution and the laws ratified by the Majlis. Thus, initially, generalities are described in the Constitution and statutory laws whose meanings the cabinet or the concerned authority in certain cases has to interpret within the framework of executive orders. The cabinet cannot act unconditionally on its own without any frame of reference. In fact, its executive orders must be within the framework of the Constitution and laws ratified by the Majlis.

The laws ratified by the Majlis, in turn, must be approved and endorsed by the Council of Guardians. That is, the Majlis must also act within the framework of the Constitution and in this way, its ratified laws will be considered credible, enjoying executive guarantee. Therefore, the credibility

of executive orders and their being binding depend on their conformity with the Majlis’s statutory laws and the credibility of statutory laws means that they are within the framework of the conditional law of the country.

The credibility of the Constitution of the Islamic system is based on its consistency with the legislative will of God the Exalted. As such, the entire laws and decrees have a linear relationship and they are credible, provided that this hierarchy is observed in such a manner that it ends up in Islam and the legislative will of God. It is not in the sense that all the executive orders, circulars and statutory laws can be explicitly found in the Qur’an and theSunnah .

Since God delegated certain prerogatives to the Holy Prophet (s ) to promulgate specific laws and decrees in certain cases, these laws and decrees are credible and binding because they are based on the permission and will of God. It is obligatory to obey and act upon them on account of the decree of God on the necessity of obeying and following him. Under the aegis of this decree of God, the laws and orders promulgated by the Messenger of Allah (s ) are credible and, at the same time, it is obligatory on others to obey and act upon them; otherwise, merely to obey the orders of the Messenger of Allah (s ) without divine sanction is not obligatory.

So, the laws which God, the Exalted, has directly enacted and explicitly mentioned in the Qur’an occupy the foremost degree and are intrinsically credible. The laws enacted by the Holy Prophet (s ) in certain cases by God’s leave occupy the next degree and their credibility is equal to that of God’s command. Similarly, the credibility of the laws which the infallible Imam (‘a ) enacts and the orders he gives emanate from the decree of God because God and the Prophet (s ) consider it obligatory to obey the Imam.

Now, assuming that we were living in an Islamic territory under the reign of the Commander of the Faithful (‘a ), we would have considered it incumbent upon us to obey him. If the Imam (‘a ) appointed a person like Malik al-Ashtar as the governor in our region saying, “Act upon his orders and do not defy them, for whoever obeys him actually obeys me,” the mere orders of Malik al-Ashtar would not be binding for the people because he was like other people, but obedience to him would have been obligatory and his orders binding because he was designated as governor by the infallible Imam (‘a ) who, in turn, had been designated by God through the Prophet (s ), and to obey him would bewajib .

However, laws and orders issued by a governor, designated by an infallible Imam, are considered laws of a third degree. As an analogy, the governor is like an appointed official whom the Islamic Consultative Assembly has granted powers on the basis of which he has authority to issue circulars and instructions, and on account of those delegated powers, his orders are binding. Similarly, the Majlis has acquired its credibility from the Constitution and its statutory laws acquire credibility under the auspices of the Constitution.

The credibility of the constitution in other countries emanates from the will of the people. But we believe in a higher station and reference with respect to the Constitution. We believe that the credibility of the constitution should emanate from the will of God, and the Prophet (s ), an infallible

Imam (‘a ) or any person like Malik al-Ashtar, designated by one of the infallible Imams (‘a ), has to endorse it. Therefore, the credibility of law should emanate from the words of God, the Prophet (s ), an infallible Imam (‘a ), and then any person designated by an infallible Imam. This is the logic and theory of Islam.

In the time of occultation [ghaybah ] of the infallible Imam, since thewali al-faqih has been chosen through a general designation by the infallible Imam, hiswilayah is endorsed by the Imam and acquired credibility, thus, his approval is the source of credibility of the constitution; otherwise, the constitution by itself is questionable. It is debatable as to where its credibility emanates from and who has the right to amend it. On what basis does a minority that has not voted for a certain law abide by it? And there are many other questions. However, when we say that this law has been declared credible by one formally designated by the infallible Imam, there is no room for any more questions.

Process of legislation in the Islamic government

It is clear in the theory of Islamic government that the original credibility of law comes from God, and the words of anyone, like the Prophet (s ), who is credited by God, become binding. In turn, the words of anyone who is designated by the Prophet (s ), or the Commander of the Faithful (‘a ), are equally binding. Similarly, the laws and decrees issued by anyone who is designated by the infallible Imam (‘a ) through a general or specific appointment shall be Islamic and sacred because they have been approved by God.

Of course, as we have said, in the Islamic government this approval may take different intervals. The credibility of approval of thewali al-faqih emanates from the approval of and endorsement by the infallible Imam (‘a ) and the credibility of decrees and approval of the infallible Imam, in turn, emanates from the approval of and endorsement by the Prophet (s ). Finally, credibility of the Prophet’s approval is confirmed through an explicit text [nass ] of the Qur’an where God says:

﴿يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللّهَ وَأَطِيعُوا الرَّسُولَ وَأُوْلِي الأَمْرِ مِنكُمْ﴾

“O you who have faith! Obey Allah and obey the Apostle and those vested with authority among you...” 3

and in another verse:

﴿النَّبِيُّ أَوْلَى بِالْمُؤْمِنِينَ مِنْ أَنفُسِهِمْ﴾

“The Prophet is closer to the faithful than their own souls….” 4

Thus, the aforementioned link has a perfectly logical foundation for the members of an Islamic society and those who believe in the truthfulness of God, the Prophet(s) and the infallible Imams (‘a ). As we have expounded earlier, we have to talk on the basis of our audience’s convictions and beliefs and through their language. For this reason, if a person does not believe in God and in the truthfulness of the Messenger of Allah(s) , or is doubtful of the infallible Imam (‘a ), we need to discuss this issue in a different way.

Initially, we have to deal with the fundamental and essential principles of Islam, and then after proving them, tackle other subjects, including political and administrative issues, on the basis of those principles. Of course, this form of legislation, or the other usual forms can also be examined on the basis of their value for the benefit of society.

Legal status delegated in the Islamic government

In the Islamic political theory, besides the fact that all principles of law must be enacted by God, all laws and orders be approved by Him, the Messenger of Allah (s ), an infallible Imam, or his general or specific successor, the implementer of the law also has to be designated by God to acquire credibility through this system of guardianship. (The judicial organ also has an executive function; it must be regarded a righteous reference authority in cases of disputes and differences and check the law prior to its implementation. Therefore, an independent and special status has been given to it.)

At the time when the Prophet (s) or an infallible Imam was present, he had to personally hold the reigns of government or designate someone to implement the law; for example, Hadrat ‘Ali (‘a ) appointed Malik al-Ashtar as the governor of Egypt in order to implement the law there. However, in this period ofghaybah when the people have no access to the infallible Imam (‘a ), the responsibility of implementing the law lies on the shoulders of the one who has been appointed by the infallible Imam through a general designation, and this will lead us to the theory ofwilayah al-faqih about which we will discuss later, God willing.

It should now be clear that in Islamic political theory and administrative structure, just as the law should be linked to God, the implementer of the law should also be linked to God and be appointed by God either through a general or specific designation.

The judicial organ should be equally linked to God and the judge should be appointed by God either through direct, or indirect and general designation. In either case, if the judge has no link whatsoever to God, his decree shall have no credit at all. The Holy Qur’an has pointed out God’s direct designation of Hadrat Dawud (David) (‘a ) to judge among men:

﴿يَا دَاوُودُ إِنَّا جَعَلْنَاكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُم بَيْنَ النَّاسِ بِالْحَقِّ﴾

“O David! Indeed We have made you a vicegerent on the earth. So judge between the people with justice….” 5

And regarding the Prophet of Islam (s ), it says:

﴿إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللّهُ﴾

“Indeed We have sent down to you the Book with the truth, so that you may judge between the people by what Allah has shown you.” 6

It also states:

﴿فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ...﴾

“But no, by your Lord! They will not believe until they make you a judge in their disputes.” 7

In sum, in the Islamic political theory, sovereignty, legislation and the administration of society in all its dimensions and aspects must emanate from the legislative will of God.

References

1. Sometimes, in contrast to the common term “government” applied to the three powers, “government” is only applied to the executive power. Of course, this is a specific term which is used in limited cases. Usually, “government” is used in its common and broad meaning.

2. Antoine Laurent Lavoisier (1743-1794): French chemist, who is considered the founder of modern chemistry. [Trans.]

3. Surah an-Nisa’ 4:59.

4. Surah al-Ahzab 33:6.

5. Surah Ṣad 38:26.

6. Surah an-Nisa’ 4:105.

7. Surah an-Nisa’ 4:65.