Do We Need a Philosophy of Law?

Dr. Hekmatnia:

In the seventeenth century, under the influence of certain events, two simple presuppositions were accepted, which led to the emergence of modern societies: 1- There is no God, or He exists and has issued no command, or He has issued a command and we were not its addressees, etc.—that is, He has withdrawn Himself from the realm of law; 2- Fundamentally, the state holds no sovereignty over us.

As a result of these two presuppositions, numerous fundamental questions were raised: Why are there rules that are imposed upon us? Why, and on what basis, does the state compel us to accept and observe rules? And so on. Humanity had no answers to these questions. Its intellectual foundations had suddenly collapsed, and it had no answer even for the simplest questions; the philosophy of law emerged in a context where humanity had set aside its previous presuppositions and felt its hands were empty; hence, it posed fundamental questions: What is law? What is obligation? From where are these binding provisions derived? And so on. Everyone is stuck at that "historical zero point"; because they have set aside the presuppositions and everything has changed. Therefore, they could not answer these questions, and instead, they had no convincing, affirmative answers for the things they had come to doubt. They set aside certain assumptions and built a new life, a life founded upon several fundamental questions. For example, John Locke, in his book Two Treatises of Government, in the First Treatise, argues that monarchical rule is invalid (negation), and in the Second Treatise, he argues what kind of government should replace that invalid rule (affirmation). The introduction of all these discussions is based on a transition. So, when they say the philosophy of law begins where you question the presuppositions of law, this is what they mean. That is, set aside what you had previously thought to be correct; once you set it aside, you see your hands are empty; and now that your hands are empty, you are compelled to engage in discussion. Why do we not have a philosophy of law? Because we have not set aside any presupposition. Why does our jurisprudence not progress? Because since the time of Shaykh Tusi, no presupposition has been displaced. It was after the Islamic Republic that some presuppositions became subject to doubt, and as a result of these few doubts, new questions were raised; for instance, it was asked whether Islamic law pertains only to early Islam or is also relevant to the present?; due to this doubt, a movement was created and new questions were raised.

Do We Need a Philosophy of Law? | March 2016 | By the efforts of the Software Movement Club

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