Challenges of Sharia in the Modern World - Iranian Experience

Iraj BabaeiLaw & Economic Institute of Erasmus

University RotterdamJune 2009

Introduction

• Movements in Islamic societies toward application of Sharia

• Applying Sharia in some countries• Critics against application of Sharia• Why speak of Iranian experience?

What is Sharia?• Sharia, Islamic law and Feqh are expressions used for the

same concept : rules assigned by Islam to different domains of personal and social life

• Sharia or Islamic law is not a rigid, static and predetermined body of strict rules

• Nature of Sharia : Rules explored by Islamic scientists (Mojtahed or Mofti) from the Islam’s sources by the means of interpreting the texts and reasoning accordingly

• Sources of Sharia: holy Quran and prophet Mohammad’s speeches and practice (Sonnat)

• Divergence between Moslems about rules of Sharia : schools of Sharia (Islamic law)

• Evolution of ideas about the rules of Sharia during the time period

Challenges of Sharia in modern world

• Inefficiency & inappropriateness of Rules of Sharia because of changes in social, economic and human conditions in comparison with era of emergence of Islam

• Incompleteness of Sharia as a legal system because of emergence of new social and economic phenomenon

Affording the Challenges

• Keeping away from modernity and insisting on traditional life and relations

• Adapting new interpretation of Sharia and taking on consideration of the new nature and exigencies of modern life

• Evolution of rules to realize purposes of the rules of Sharia in new contexts

• Creating new rules of law by respecting principle rules and guide of Sharia

Iranian Experience

• Introduction of Iranian legal system• Iranian law is a civil law system and written law is

the most important source of law• Legal movement after Islamic revolution of 1979

to adapt law to Sharia rules• Article 4 of IR Iran Constitution (Islamic Principle)• Ratification of new rules of Criminal law, Banking,

Civil and Penal procedure according to traditional Sharia rules

Rise of problem of efficiency and conformity of new rules

• Rise of social and economic problems by ratification of rules based on traditional Sharia in Iranian society

• Efficiency problem and objection against conformity of these rules and interpretation of Sharia

• Consideration of nature of modern social context in some new laws and ratification of new rules by respecting general principal of Sharia (some time different from traditional interpretation of Sharia)

• Process of lawmaking : Parliament and Guardian council

• Blockage of lawmaking because of confrontation between Iranian parliament and Guardian Council

Intellectual movement to find appropriate Islamic solution

• Doubt about conformity of the method of interpretation of Sharia

• Interpreting Sharia in function of purposes of rules and investing new rules which realize the purposes of Sharia in the case

• Emergence of new rules according to new method of reasoning by Ayatollah Khomeini

Legal measures to enact efficient rules despite of traditional rules of Sharia

• Modification of Iranian constitution on 1989 and the creation of Nation's Exigency Assembly

• Intellectual basis of this institution: Saving the expedient of Islamic society and respect of principles of Sharia