A Feasibility Study of Conventional Legislation Institution in Shia Jurisprudential Literature with an Emphasis on Imam Khomeini’s School of Thought

Transition from jurisprudence to law is impossible without clarification of the “manner” of shift from one to the other. However, before such transition, the “possibility” of turning jurisprudence into law, or in other words, establishment of a conventional legislation institution, must be first approved in the Sharia law. It is significant, knowing that in the political system of the Islamic Republic of Iran, Majlis or Iranian Parliament is responsible for legislation but in view of jurisprudence, legislation by the Majlis should receive jurisprudential endorsement. The principal question of this paper is about the possibility of conventional legislation institution in Shia jurisprudential literature. The most important theoretical obstacle to legislation is the theory of “comprehensiveness of jurisprudence”. However, if the hypothesis is interpreted through the eyes of ijtihad, we will find out that not only jurisprudence has no inconsistency with conventional legislation, but also it emphatically endorses such legislation. Thus, comprehensiveness of jurisprudence is no obstacle to translation of jurisprudence into law and establishment of a legislation institution. In this paper, we have tried to review this issue with an analytical method and library studies with an emphasis on Imam Khomeini’s views to open a window toward placement of the concept of modern law in Shia jurisprudential literature in terms of specific interests and meeting the rights of the nation. Since, discernment of specific interests is an ultra-jurisprudential issue, it falls beyond the power of religious decrees and state orders.