Associate Professor, Islamic Science and Culture Academy
Abstract
The present article studies the intentional silence of law in cases of religious rulings from five perspectives: first, the factors that cause the legislator to remain silent about a religious ruling, despite the fact that it has the potential to become law; second, the goals that the legislator pursues through this silence; third, the jurisprudential requirements of these goals; fourth, an examination of the current state of legislation in relation to these requirements; and finally, suggestions for improving the existing situation. Therefore, the research question of the article is to examine, from a jurisprudential perspective, the factors, objectives, and requirements of the intentional silence of law in cases of religious rulings, and to compare it with the legislative system of the Islamic Republic of Iran. The findings of the article, having been obtained through a jurisprudential method, show that these factors include: 1. The existence of the idea of what we call a “more important harm” in enacting a law resulting from the inability to enforce the law, pressure from public opinion, international pressures, the expediency of gradualism, and conflict[1]; 2. The existence of the expediency of freedom for the people or the people and judges to act according to the different judicial decrees (fatwÁs) of jurists. The legislator’s objectives for such silence are: 1. Non-implementation of that religious ruling; 2. Implementation of it without being bound by legal requirements for the people, but with uniformityin practice for judges; and 3. Implementation of it without legal requirements, even for judges. The requirements of the silence of law in all objectives require legal supervision, and in the first two objectives require the exercise of guardianship.
