Challenges of Sharia in the Modern World - Iranian Experience

1. Challenges of Sharia in the Modern World - Iranian Experience Iraj Babaei Law & Economic Institute of Erasmus University Rotterdam June 2009

2. Introduction • Movements in Islamic societies toward application of Sharia • Applying Sharia in some countries • Critics against application of Sharia • Why speak of Iranian experience?

3. What is Sharia? • Sharia, Islamic law and Feqh are expressions used for the same concept : rules assigned by Islam to different domains of personal and social life • Sharia or Islamic law is not a rigid, static and predetermined body of strict rules • Nature of Sharia : Rules explored by Islamic scientists (Mojtahed or Mofti) from the Islam’s sources by the means of interpreting the texts and reasoning accordingly • Sources of Sharia: holy Quran and prophet Mohammad’s speeches and practice (Sonnat) • Divergence between Moslems about rules of Sharia : schools of Sharia (Islamic law) • Evolution of ideas about the rules of Sharia during the time period

4. Challenges of Sharia in modern world • Inefficiency & inappropriateness of Rules of Sharia because of changes in social, economic and human conditions in comparison with era of emergence of Islam • Incompleteness of Sharia as a legal system because of emergence of new social and economic phenomenon

5. Affording the Challenges • Keeping away from modernity and insisting on traditional life and relations • Adapting new interpretation of Sharia and taking on consideration of the new nature and exigencies of modern life • Evolution of rules to realize purposes of the rules of Sharia in new contexts • Creating new rules of law by respecting principle rules and guide of Sharia

6. Iranian Experience • Introduction of Iranian legal system • Iranian law is a civil law system and written law is the most important source of law • Legal movement after Islamic revolution of 1979 to adapt law to Sharia rules • Article 4 of IR Iran Constitution (Islamic Principle) • Ratification of new rules of Criminal law, Banking, Civil and Penal procedure according to traditional Sharia rules

7. Rise of problem of efficiency and conformity of new rules • Rise of social and economic problems by ratification of rules based on traditional Sharia in Iranian society • Efficiency problem and objection against conformity of these rules and interpretation of Sharia • Consideration of nature of modern social context in some new laws and ratification of new rules by respecting general principal of Sharia (some time different from traditional interpretation of Sharia) • Process of lawmaking : Parliament and Guardian council • Blockage of lawmaking because of confrontation between Iranian parliament and Guardian Council

8. Intellectual movement to find appropriate Islamic solution • Doubt about conformity of the method of interpretation of Sharia • Interpreting Sharia in function of purposes of rules and investing new rules which realize the purposes of Sharia in the case • Emergence of new rules according to new method of reasoning by Ayatollah Khomeini

9. Legal measures to enact efficient rules despite of traditional rules of Sharia • Modification of Iranian constitution on 1989 and the creation of Nation's Exigency Assembly • Intellectual basis of this institution: Saving the expedient of Islamic society and respect of principles of Sharia