پژوهشنامه حقوق اسلامی (Aug 2023)
The preferences of adopting the Fatwa of the Leader as a standard Fatwa in legislation, with emphasis on the opinions of the Iranian Guardian Council
Abstract
In Islamic government, legislation is one of the most important examples of application of guardianship [Velayat] to people, their honors and properties. Therefore, recognizing the standard Fatwa in this area is extremely important, since it will be the legitimacy test of the legislative’s actions. Considering that in the Age of Absence [of the Twelfth Imam] the right to apply guardianship has been assigned to a completely qualified jurist and assuming that a government has been formed, the making decision in social and governmental affairs (rulings of the Sultaniyeh [governance]) is the responsibility of the ruling jurist, the present article assumes that the standard Fatwa in legislation, which is the area of interference in social and governmental affairs, is the ruling jurist's Fatwa. With this assumption, this research, by re-investigating this basis in the opinions of constitutional judge, with a descriptive-analytical method and by examining the interpretive, consultative and comparative opinions of the Guardian Council, has come to this conclusion that several opinions from the constitutional judge support and strengthen the said assumption. On the other hand, this view that the Fatwa of Guardian Council’s jurist is the test for measuring the legitimacy of the Parliament’s enactments, can be interpreted as the confirmation of Constitutional Act by the ruling jurist and the assignment of supervision by him. Accepting this view will not only deprive the Guardian Council of the important task of supervising legislation, but also it will be a doubled emphasis on the necessity of satisfying some characteristics such as "justice", "awareness of the requirements of the time", "being a Muslim" and finally "expertise in various legal fields" which are mentioned in Principle 91 of the Constitutional Act in selecting jurists and lawyers of the Guardian Council.
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