The Comparison of the Legislation Process in the Islamic Republic of Iran with the Theory of Legislation as Planning for the Implementation of Divine Laws

The theory of legislation as planning for the implementation of divine laws is founded on this basis that among the competences of the Holy Legislator is legislation and the function of the parliament is to plan in the form of statutes so as to implement the divine rules. This conception is originated from the Islamic foundation which is obvious in the viewpoint of the founder of the Islamic Republic of Iran and some Islamic jurists of the constituent assembly of the Constitution. “The assignment of legislation to God” and “the fundamental role of revelation in the expression of the law” are explicitly stipulated in the Constitution. This research through a descriptive-analytic method seeks to examine the compatibility of the legislation process with the aforesaid theory. This ambiguity arises from the fact that the legislative initiative of the parliament is in a way which has turned the competence of legislation of the Holy Legislator into an ineffective issue; as Ijtehad is prior to legislation in an ideal system whereas it is subsequent in the existing legal system of Iran. No mechanism is predicted on this basis which the parliament legislates based on the results of the Ijtehad and in the implementation of the Islamic laws, rather the parliament generally legislates according to the needs of society. In this way, Figh is subsequent of legislation and solely the non-contradiction of the enactments with the Islamic criteria is examined. This distinction may cause some deficiencies in the legislation system based on the holy Sharia.