The Article “Legal-Jurisprudential Pluralism, the Immutable Elements of Sharia, and Iran’s Legislative System” by Mohsen Borhani and Elaheh Lotfalizadeh

Legal-Jurisprudential Pluralism, the Immutable Elements of Sharia, and Iran’s Legislative System

Article Type: Research Article

Authors:

Mohsen Borhani (University of Tehran)

Elaheh Lotfalizadeh (Faculty of Law and Political Science, University of Tehran)

The existence of influential components within a legal system is the point of departure for legal pluralism; a theory centered on the examination of multiplicity within a legal system. Given the presence of a kind of plurality and multiplicity in most legal systems, such as pluralism in foundations and sources, the necessity of attending to this theory becomes apparent; a matter that can also be examined in Iran’s legal system. Since the Constitutional era, Iran’s legal system has been situated within the duality of Sharia/law, and the status of these two as sources remains one of the principal issues of the Iranian legal system. With the ratification of Article 4 of the Constitution and the Guardian Council’s responsibility to ensure the compatibility of parliamentary enactments with Islamic standards, this issue became more complex, because jurisprudential inference is a pluralistic matter, and finding a single opinion and reconciling it with the public will requires deliberation. By conceptually explaining legal and jurisprudential pluralism and attending to the capacities of Islamic jurisprudence, this article addresses the crucial point that in the event of a plurality of fatwas, the Parliament has the discretion to choose any of the opinions as the jurisprudential basis, and the Guardian Council cannot, citing the incompatibility of the enactment with another jurisprudential opinion, deem that enactment contrary to Sharia.

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