The Theory of Conflict of Conditional Obligations in Legislation (A Theory in Legislation Based on Secondary Topics)

Document Type : Original Article

Author

Associate professor, Islamic Sciences and Culture Academy, Qom, Iran.

Abstract

The theory of conflict of conditional obligations in legislation is a theory on the scope and criteria of legislation based on the secondary topics (in jurisprudence). According to this theory, it is obligatory to observe the rulings of Islam (including permissible, obligatory, and status rulings) and the goals of religion and the purposes of Sharia in legislation, i.e., the condition for the correctness of legislation and the conditional obligation in legislation. If the obligation to observe one religious ruling in the legislation contradicts the obligation to comply with another religious ruling, or the obligation to observe a purpose of religion or a purpose of Sharia in the legislation, and the legislator considers the other party important, then, the law must be enacted according to the important party. The focus of discussion of this theory is in the position of the legislator against the unimportant ruling. According to this theory, he should ignore the law that is related to the unimportant ruling or enact the law in contradiction with it and appropriate to the important ruling. Since the permissible, obligatory and status rulings, as well as the aims of the religion and the purposes of the Sharia, are the subjects of this conditional obligation, it can be considered as the party to be conflicted. The criterion for permissibility of the law to be ignored, as well as legislation that is contrary to the religious ruling, is to observe the preferred principles of this conflict. In the present paper, the pillars of this theory are explained and proved in a jurisprudential way, to the extent of the capacity of a paper. This theory is related to the discourse of absolute Wilayat Faqih (Guardianship of the Islamic Jurist) and is based on it. The findings of this study are related to the duties of the Expediency Discernment Council (of Iran) in deciding on resolutions of the Islamic Consultative Assembly, which are introduced by the Guardian Council as illegal.

Keywords

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History

  • Receive Date: 20 September 2020
  • Revise Date: 14 October 2020
  • Accept Date: 15 November 2020

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