چکیده:
Governing is in need of various regulations which can be of different property from the primary decree due to the necessities, expediencies and interventional conditions. Considering the factor of “the entity of rule”, “the function of rule” and “the process of changing legal decree to the rule”, it can be understood that the entity of rule and legal decision particularly in view of criterion and expediency is considered to be different and the relationship between these two generality and specificity can be deemed to be common. In terms of function, rule is much more extended than legal decree and the legislator cares for the social values and objectives of religion besides putting emphasis on the Islamic decree and he does his duty on account of them. Nonetheless, due to the necessity of Islamic legislation, it is needed a paradigm in order to change the legal decree to the rule in a way that the issued rules are based on the “religious principles” and the religion and needs of government are comprehensively considered in it.
خلاصه ماشینی:
Nature and Function of Law in Comparison with Fatwa Date of Receipt: 94/2/30 Date of Approval: 94/5/12 Fariba Alasvand Member of the Scientific Board of the Women and Family Research Center - Abstract The administration of government requires diverse laws that may be enacted based on necessities, interests, and conflicting circumstances, and may differ from primary rulings.
At the same time, due to the necessity of Islamic legislation, we need a model for converting fatwa into law that both satisfies the title of "Sharia standards" regarding the issued laws and incorporates a comprehensive view of religion and the needs of the government.
These laws are enacted based on the needs of the Islamic society and on the basis of public interest, have a temporary nature, and in terms of validity and authority, refer back to the same primary laws and rulings (Montazeri 1409 AH, 2: 60).
As previously mentioned, the origin of issuing a law that may not be in complete harmony with a Sharia ruling (such as making a permissible matter obligatory or unauthorized) is the existence of necessity—not اضطرار (extreme necessity)—and social interests with the condition of generality; however, interest in this discussion does not mean the criterion of a Sharia ruling or the source of issuing the primary ruling, but rather it is a temporary matter that the ruler and the Islamic society cannot ignore during a specific period of time.
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