Fundamental Rights Volume I

Fundamental Rights Volume I

Explanation of the Nature, Process, and Origins of Rights, and the Process of Derivation of Rights, Boundaries, Requirements, Consequences, and Ultimate Goals, Based on a Philosophy Rooted in “The Truth of Existence”

By: Ayatollah Mohammad-Reza Nekounam (may his soul rest in peace)

Bibliographic Information:

• Author: Mohammad-Reza Nekounam, 1327 AH –
• Title: Fundamental Rights
• Publisher: Sobhe Farda Publishing, Islamshahr, 1393 AH (2014 CE)
• Publication Details: Two volumes
• ISBN (Volume 1): 978-600-7347-11-9
• ISBN (Full Set): 978-600-7347-10-2
• National Bibliographic Number: 3443487

Foreword:

“Right” is an emergent phenomenon that arises from existence. It is because of this that one can study it rationally and philosophically. This implies that rights follow a system that originates from an absolute truth, affecting the relations of all phenomena.

In this book, we discuss both the philosophy of law and certain issues of fundamental rights in a rational manner.

The philosophy of law is a foundational discipline, and its specialist must possess knowledge not only of pure philosophy and law but also of the philosophy of science. A scholar without expertise in pure philosophy cannot uncover the philosophy of law; for we consider law and its system to be derived from “existence,” specifically from the “truth of existence,” and not from a philosophy based on “the primacy of existence and the subordination of essence.” Law is derived from the phenomena of existence, not from social reality (customs) or social agreements (treaties), which have a posterior relationship to law, not a prior one.

The discussions of this science are generally divided into two parts: one is “Theoretical Philosophy of Law,” which explains the nature and rationale of law, its foundations, goals, and comparative philosophy; the other is “Practical Philosophy of Law,” which addresses the practical aspects of law, such as its sources, the role of law, and legal methodology.

In this book, we discuss both the theoretical and practical philosophy of law. However, we do not cover every aspect of the philosophy of law but focus only on the essential topics where we have specific views. These issues often contain intellectual and philosophical complexities that are overlooked by most legal scholars and philosophers. In particular, the philosophy of law requires expertise in pure philosophy as well as psychology and sociology. Some topics in this book go beyond the philosophy of law and enter the realm of legal epistemology, which is a broader field than the philosophy of law.

This book examines both the internal foundations of law and its external relations. Internal issues include questions such as “What is a legal system and how does it form?”, “What is the origin of legal rules?”, and topics such as the organization of order, the criterion of freedom, the nature of justice, the implementation of justice, and the legitimacy of state intervention in society. External issues explored include the relationship between law and ethics, sociology, and other sciences.

The current work goes into detail on the following topics:

• The preceding concepts of law, which are known as “foundations of law” and the rules and values from which law is derived.
• “Legal sources,” which are the rules with enforceable guarantees.
• The connection between foundations and sources, known as “principles,” and some of the “rules” that arise from these principles.

Additionally, the book provides a nuanced theory regarding the source of “custom” (customary law). We critique some of the major legal schools of thought, regardless of whether they belong to the pure (descriptive-analytical) schools of law or the value-based (normative-prescriptive) schools. Among the ideas critiqued are those of Descartes, Kant, the Social Contract theorists, secularism, and the rejection of independent human reason and collective wisdom.

The concept of “justice” is addressed in a separate chapter, where we discuss the distribution of resources such as ownership, wealth, and power. This book critiques and rejects the interpretation of justice as equality and proposes a new, middle-ground theory.

A significant discussion in this chapter is the analysis of the theory of “justice as fairness,” where new critiques are presented.

One of the key propositions in this book is the rejection of the intermingling of ethics and law, emphasizing the necessity of maintaining distinct boundaries between the two disciplines. In situations where ethical considerations are sufficient, law need not intervene. However, if legal recourse becomes necessary, judgment should be based on legal, not ethical, principles.

Two chapters also address the philosophy of “pragmatism” and its boundaries, as well as the principles of implementing a penal system, bringing fresh perspectives to these long-standing issues.

The second volume of this book will address fundamental rights issues such as “freedom,” “the right to self-determination,” “immunity,” and “government,” offering philosophical discussions and free debates on the current structure of the “Islamic Republic” government, along with suggestions for its rational structure.

This two-volume work contains the following ten chapters:

1. The nature and rationale of the philosophy of law;
2. Legal schools of thought;
3. The sources of legal science;
4. The relationship of law with other sciences;
5. Justice;
6. Social justice;
7. Pragmatism;
8. The philosophy of the penal system;
9. The right to freedom, self-determination, and immunity;
10. The government of the Islamic Republic.

Praise is for God alone.

Chapter 1: The Nature and Rationale of the Philosophy of Law

What is the Right?

The definition of “right” and its semantical analysis is a philosophical task that must be addressed within the study of the philosophy of law to establish the basis for legal scholarship.

“Right” originally comes from a Hebrew word meaning “stable” or “fixed,” and in Arabic, it is referred to as “Haq.” In modern languages, the term “right” is often used interchangeably with “law” or as a condensed essence. We will explore the original meaning of the term in detail.

Definitions of “right” are typically related to its practical applications and often emphasize its characteristics, which may not be the essential qualities of the concept itself. For example, defining the right as “justice” is a definition based on the subject, since justice is only a part of the right, and not synonymous with it. Similarly, defining the right in terms of “duty” or moral obligations is a limited understanding, focusing on the qualities of right rather than its essence.

If someone defines right as “the opposite of falsehood,” this philosophical definition would be incorrect, as it implies an inherent contradiction that does not exist in reality. Right and wrong are relative concepts, which differ from outright opposition.

Similarly, defining the right based on “emergence” is a subjective view, whereas right exists independently of this perspective.

Defining the right as “profit” or “gain” is also incomplete, as it focuses only on secondary aspects of the right.

When we define the right in terms of “Islam” or “God,” it refers to a specific example rather than the broader truth for which it was defined.

In the philosophy of law, we propose the following definition of the right:

“A process that shapes and establishes a relationship between two or more perspectives or dimensions, emerging from existence and the manner in which a phenomenon is created, facilitating a connection with itself or others. This process determines the limits and boundaries of relationships or ownership, indicating an obligatory priority or a non-obligatory preference, and it prevents unlawful encroachment or transgression.”

This definition highlights that the right is interpreted based on human understanding of existence and phenomena, and the philosophy of law is rooted in pure philosophy. If a legal philosopher lacks a proper and rational view of pure philosophy, they may misinterpret what is truly right.

An example of this can be seen in a photo chosen in an international photography contest, showing a woman from Afghanistan whose nose, ears, and other body parts were cut off by her family members for committing an immoral act. Feminists described this as a violation of her rights, while the only right her husband recognized was referring the case to the courts.

This illustrates how different interpretations of right depend on one’s worldview, and why the philosophy of law is necessary to explain these variations.

We stated that the definitions of “right” are more commonly used and applied—often in one or more directions. An example of this is the definition which says: “Right is that which requires the attachment and ownership of an object to a specific value or price, which the law prescribes.” This definition considers two components: “attachment and ownership” and “control and possession” within the meaning of right. In critiquing this definition, it must be stated that control and possession are consequences and subcategories of ownership, and their mention is unnecessary when the term “attachment” is introduced. Moreover, control and possession have no intrinsic connection to the essence of right and are considered as its attributes. A right may be a spiritual or real matter, in which the concepts of control or dominance hold no relevance.

“Right” is contrasted with “falsehood.” Right refers to the true and correct manifestation of an object, the form it ought to take, while falsehood entails the destruction of this form. “Right” always has truth, whereas “falsehood” exists within the realm of reality. By reality, we mean the state of affirmation, which can undergo change and alteration from its original structure.

It must be noted that everything has two realms: the realm of existence (the truth) and the realm of affirmation (reality). The realm of existence refers to the essence of an object—what makes something what it is. It is a state of knowledge and awareness, not involving external influence, while the realm of affirmation concerns how something actually exists in the world, subject to transformations. The realm of affirmation is subsequent to the realm of existence. The realm of existence is the domain of being and non-being, while the realm of affirmation is about what ought to be and what should not be.

The subject of right is “justice,” and the subject of falsehood is “dominion.” It is true that right carries dominion in the sense that it is in harmony with its creation or being, but the dominion associated with falsehood can be tyrannical and exceed natural boundaries. Right exists in truth, while falsehood exists in reality. Both are real and external phenomena, but falsehood lacks truth, while right contains both truth and, when the realm of affirmation is aligned with the realm of existence, reality. Therefore, no right is false because right and falsehood are categories of division, unlike existence and non-existence, which are not. Non-existence, in this sense, means a mental existence, but this mental existence has no external counterpart. The concept of non-existence is derived from the concept of existence, meaning it is a secondary philosophical abstraction. The relationship between right and falsehood is not analogous to the relationship between existence and non-existence; rather, it is a matter of truth and reality. Right is harmonious and balanced truth, while falsehood is a disordered and structural breakdown.

The philosophy of law seeks to discover the principles of rights and their criteria, presenting right in an inferable descriptive manner, analyzing, examining, and critiquing it, thus preparing the ground for its realization and, consequently, the achievement of a portion of justice.

We have stated that the philosophy of law, in its perspective of constantly dealing with particular issues and inherently considering the attributes of phenomena, is a form of knowledge, not a science. Furthermore, it is neither an art nor a skill. Knowledge that is an art or craft involves the practical application of its theoretical strength through material tools, based on established rules. Art concerns itself with the subtleties of an object without aiming to prove or disprove something via rational operations.

The philosophy of law, being based on reasoning, is an educational and acquireable discipline, its ultimate goal being the defence of right.

When the philosophy of law is seen as a form of knowledge, it means that it has the power of revelation, clarity, and the manifestation of truth. It is an act of creation, not merely a factual report; unlike law itself, which is fact-based and does not have the capacity to innovate. Laws draw their propositions from the philosophy of law. It is the philosophy of law that investigates the rights and relations that underpin it and systematically structures them, while the jurist is the one who engineers and enforces these laws in practice. This is why we consider the jurist a practitioner, not a scientist.

Since the philosophy of law is considered a form of knowledge, it is held in high regard and carries a sense of dignity, unlike the skill, which is a craft and lacks this sanctity. The philosophy of law is akin to the study of theology, as it is an entirely theoretical field and has no practical or technical component. However, when this philosophy is applied to the jurist, it becomes a practical operation through their expertise. In other words, if we consider the jurist to be a legislator, their engineering of legislation must have both an academic and a practical foundation. It is the philosophy of law that supports this engineering, legitimising it. Without it, such actions would lack logical and genuine legitimacy. Moreover, the jurist’s authority lies in the execution phase, where they can properly and correctly implement right and law.

With this clarification, we can define the science of law as:

“Science of law is the conscious ability to follow binding or preferential rules derived from the relationships between several things, empowering an individual to implement them.”

Some legal scholars have proposed the following definition of law:

“The science of law is a set of binding rules in society that guide an individual to establish order and justice.”

This definition sees law purely as knowledge and considers it a science, not a craft.

We regard knowledge as a form of creation, not as a fact. Knowledge is a simple, singular ability, while the definition mentioned above views law through a composite lens. This perspective places the jurist as an observer, which is why the components of this definition do not harmonise with one another. If we interpret law as the knowledge of rules, then we have made it a passive truth, positioning the jurist as someone affected by others’ knowledge. Such a passive truth should not be regarded as science; it would be more appropriate to call it a craft.

In Islamic jurisprudence, we say that jurisprudence is a science, and a sacred, spiritual, and intellectual power is involved in it, which enables a scholar to systematically deduce rulings. This definition regards jurisprudence as a science, capable of producing and innovating knowledge. Reliance on memorised knowledge—characteristic of factual reporting—is absent in this definition. We consider the philosophy of law as a science and as a form of knowledge, but we view law itself as merely a craft, providing the jurist with the capacity to execute known knowledge. Hence, we do not consider a judge’s jurisprudential expertise as a prerequisite, and we deem a judge’s personal reasoning incompatible with adjudication, as it undermines the consistency of legal practice.

The philosopher of law, in contrast to the jurist, possesses the intellectual power and ability to discover the right and systematise it. The jurist, however, relies on previously learned knowledge and, in this craft, is a follower, not a creator. Science is a singular and simple entity; it does not deal with multiplicity, and it is an active capability within the soul. Craft, on the other hand, relies on mastery of rules that can be executed skillfully, with its capacity being passive and influenced by prior knowledge. Unless creativity and innovation are introduced at the level of knowledge, no new production will emerge in a craft.

At this point, it is useful to mention some definitions of law, some of which are notably crude, such as:

a) “Law is the art of living rationally in society.”

This definition views law as an art, but we have classified it as a craft.

b) “Law is a tool for exercising power in the hands of rulers.”

This definition views law as an instrument, reflecting a negative outlook. It seems the person offering this definition was repelled by the falsehood of law and, thus, defined it from a mindset of disdain.

c) “Law is the historical residue of social ethics.”

The term “residue” refers to something akin to waste, whereas law, despite being a craft, has a foundation rooted in science, revelation, and clarity, and is not grounded in the historical residue of social ethics.

In reality, the definitions presented above reflect the mental tendencies of thinkers with a literary or descriptive approach rather than a genuine philosophy backed by truth.

What is the Philosophy of Law?

Previously, we provided definitions for “right” and the science of law, and here we aim to offer a definition of the philosophy of law. In order to avoid ambiguity, we present this definition after considering its full scope. It is a bit lengthy, and thus, it should not be criticised for its detail. Below is the concise version of this definition:

We define the philosophy of law as:

“The philosophy of law is an interdisciplinary field that systematically discusses the essence, the process of deriving rights, the boundaries and consequences of those rights, and their ultimate goals and objectives, in interaction with other branches of knowledge. It aims to render the propositions of law rational, justifiable, and comprehensible.”

To make this definition more coherent and philosophical, it is essential to note that phenomena have both existential and affirmative aspects. Previously, we stated that the realm of affirmation is the domain of reality, and the manifestation of phenomena outside this reality is secondary to its essence. The philosophy of law addresses the realm of the essence of rights, not what happens in the realm of reality, which may be falsified or have no basis in nature or the structure of creation.

The questions of the philosophy of law are similar to the three fundamental questions concerning any phenomenon, which are as follows: is the phenomenon real? (the question of existence); what is the essence or identity of the phenomenon? (the question of nature); and what is the underlying reason or

The Origin of Rights

There is a difference of opinion among legal scholars regarding the origin and foundation of rights. Ancient Greek philosophers, such as Plato, considered natural law to be a part of social ethics, akin to domestic management and political affairs, and believed that rights stemmed from social ethics, with social morality creating the rules of natural law.

Some Christian theologians believe that the origin of rights is God. Thinkers like Kant, Descartes, and other rationalist philosophers argued that rights are derived from human reason. Philosophers such as Russell, on the other hand, considered the source of rights to be human senses, conscience, or intuition, meaning that every individual feels these rights within themselves.

We believe that the origin of rights is “a reality that exists externally.” Rights are secondary intelligibles in philosophy that are conceived in the mind, but their actualization is in the external world, relating to their external instances, not to their mental existence. Rights are truths, similar to knowledge, life, and death, which have no external instances of their own, yet have an external origin from which they are abstracted.

Rights do not have an independent or separate existence in the external world and cannot be pointed to physically. However, the human mind derives rights from being and the phenomena in the external world, from life and its manifestations, including the ways in which these entities interact.

It should be noted that all phenomena and their manifestations in existence are inherently alive. It is impossible for a phenomenon in the external world to exist without life. “Life” is the first and primary right that is abstracted from being and its phenomena.

From the “right to life,” many other rights are derived. These are rights that exist in the external world in a form similar to secondary intelligibles, meaning the concept of the right exists in the mind, but its actualization occurs in the external world. The primary source of rights abstraction must be the living existence and its manifestations. Moreover, nothing in the external world exists without life; every particle of manifestation, as explained in philosophy, possesses life and existence. This theory goes beyond the idea that the source of rights is nature, human nature, or inherent tendencies because rights are not exclusive to humans but apply to existence and each of its phenomena, attributing rights to them. The source of rights abstraction is “existence” and its “manifestation,” and nature or inherent tendencies are secondary to existence and its manifestation. Speaking of “inherent rights” is not based on philosophy and truth; the truth of everything must be viewed in its roots, moving in line with that. The root of every phenomenon and right is “existence.” Rights are the effects of “existence.” Therefore, all phenomena of existence have rights. For example, the rights of plants or animals include the right to life.

The “natural or inherent right” is also part of the “right to existence.” Based on this, if someone becomes a sophist, they cannot affirm a right for anything and must adhere to the consequence of their position, which negates rights altogether. This contrasts with the Greek philosophers who believed in geocentrism and naturalism, defining everything through the world and nature. These philosophers even sought their God within the world and believed in many gods, discussing human rights as part of nature, from which they were derived.

The religious view tends to centre around God, beginning with God and moving to nature and then to humans. Every right, including natural law and human law, is understood within the framework of divine rights and the law of God.

The Renaissance, which valued empirical rationalism, initially turned to atheism, and anthropocentrism replaced God. Later, they sought God for humanity’s sake, leading to the establishment of the “human rights” philosophy based on human needs, especially supported by powerful and imperial states.

Modern human rights are a historical process shaped by the dominance of states across different periods, influenced by social conditions and grounded in human reality rather than external truths. The current concept of human rights lacks a foundation in philosophy or external truths. Rights, including human rights, are secondary intelligibles in philosophy, and their subject is “existence” and its manifestations. Anything that has existence or manifestation has rights, whether it be God, humans, or the world and nature. Human rights and laws made by them require an external origin to be real, and that origin is external existence. Therefore, anything whose existence and manifestation can be established has rights, which are structured in the external world and are not merely abstract or nominal.

In essence, rights provide the framework for the life and existence of beings and their phenomena. This framework is derived from the way their existence manifests in the external world, not from religion, human desires, or social traditions, nor from the power of states and rulers. As such, rights cannot be divided into divine or atheistic, religious or non-religious categories. Rights are shared between believers and non-believers, except where the specific manifestations of rights differ. For example, a non-believer may lose the right to life in certain circumstances due to their manifestation, while a believer retains the right to life and respect due to their faith. Similarly, rights extend to a bird exposed to cold that cannot endure it, with humans advised to take care of it, whereas a dog, which can withstand the cold, does not need such care. Rights are discovered, and the process of discovering them must be carried out with utmost care to ensure that rights are properly and justly uncovered, without causing harm or injustice to others.

In summary: The different schools of thought regarding the origin of rights are reactive theories that have emerged in response to varying societal conditions, without paying heed to the external truth of rights. For example, some claim that rights are natural and inherent, derived from human nature, while others consider social history as the origin of rights.

Some view rights as empirical and researched, arising from economic and environmental factors. Others consider rights to be the product of social customs and traditions. Yet, some assert that rights are derived from divine law. This theory too cannot be wholly accurate unless we consider a religion that is complete and claims finality, meaning its religious propositions cover the entirety of existence and its phenomena. In such a case, rights are considered specific and independent in relation to religion, and some religious propositions concerning rights align with rights. However, even in this case, religion has the role of guiding rather than creating rights.

As explained above, it is clear that the theories proposed about the origin of rights are passive, emotional, and motivational theories that have influenced proper perspectives and led to errors. In scientific discourse, one can claim freedom of thought and universality only if they can detach themselves from “the self” and avoid bringing their personal biases into the discussion. A modern and free thinker is someone who refrains from involving their personal self in the discussion and, free from motivations, presents their insights.

Natural Law School

In general, two main legal schools of thought exist in legal philosophy: one is the natural law school, and the other is the positivist school.

Historically, the natural law school precedes the positivist school and has three branches: divine (inherent), cosmic (natural), and human-based natural law.

Naturalists root legal principles in prior values and see rights as products of these values, while positivists argue that rights create values. The main critique we have of these two schools of thought is their passivity, their reactive and defensive nature, and the involvement of motivations that have influenced their perspectives, making their propositions weak and detached from the truth.

These schools, rather than discussing rights as derived from “existence,” focus only on the “perfections of existence,” which have been influenced by social environments and have engaged their minds. The theory of natural or inherent rights and other related theories refer to the consequences of existence and its perfections, while the true origin of rights is the essence of existence itself. These theories are philosophically negligent and shallow in their perspectives. Instead of adopting a philosophical approach to rights, their social outlook has led them into reactive thinking. Their affected minds, instead of reaching the core of existence, have become fixated on its initial layers, leaving behind the true nature of rights and substituting it with secondary attributes and branches. In logical terms, they have fallen into the fallacy of taking accidental properties instead of essence and into transformation-based thinking, which is a common error in scientific debates.

We consider rights to be secondary intelligibles in philosophy that first have a relation in the external world, then are conceived in the mind. In fact, the external existence of rights precedes its mental conception. Without external existence, it cannot be presented in a mental proposition, as this would lead to a false or imaginary statement. In valid propositions, “the subject” is a primary intelligible, and “the predicate” is a secondary intelligible, both of which reflect external existence. In the external world, they both come together as a single entity, and the mind abstracts two different mental aspects from the same external entity. The mental existence of rights is also unified, as the mind cannot bear multiplicity. However, the process of abstraction is separate.

“Existence” is primary in rights, and after that, we speak of “the perfection of existence,” which in turn gives rise to rights.

As mentioned earlier, rights are abstracted from external existence, but in the process of discovering and abstracting rights, factors such as religion, reason, history, experience, and other sources of knowledge can influence the process. The discoverer of rights is human reason, and it is not the case that humans can create or bestow rights onto nature. Rather, the tools for discovery are varied, and humans, with different scientific tools and inclinations, can discover some rights. However, it is a mistake to consider the tools of discovery as the source and origin of rights. It is essential to distinguish between the real, external rights and the process by which humans uncover them with the scientific tools they have.

Since right is an existential and external matter, even early humans discovered some of the rights — for instance, the Code of Hammurabi, one of the oldest records in this field. However, the belief that right is a historical, religious, or natural matter is a mistake, as it conflates the notion of the status of truth with its manifestation and discovery.

Conflict Between Divine Rights and Philosophical Rights

If we accept that the source of rights is existence and its manifestations, then the issue of conflict between divine rights and human rights is, in its essence, negated. This conflict, from a technical perspective, is excluded from discussion; in other words, such a dispute does not exist. For instance, “the right to freedom” is a fundamental right of every phenomenon, and everything that manifests itself engages in actions and reactions that grant it relative freedom and autonomy — not absolute, but relative freedom. This freedom, in divine law, has specific standards, and limits have been placed upon it, with certain things being forbidden for humans. Human rights, when appropriately based on rational and logical thought about existence and phenomena, lead to the discovery of these prohibitions, their criteria, and standards. Therefore, if something is not forbidden in the “true and unadulterated religion,” yet is promoted as forbidden in the “distorted religion,” a flourishing intellect, illuminated by the light of divine authority, is able to recognise this distortion and understand that the prohibition in question is not rooted in truth.

Rights are the practical consequences of existence or its manifestations, and no conflict can arise between the laws and decrees instituted by God and those understood through an intellect that is nurtured by the light of divine authority. Of course, the intellect, in its initial form — when it is engaged with the desires of the soul — may err in discerning the matter and its related judgement or in adhering to it. However, when the intellect transcends the level of the soul and becomes illuminated by the light of the spirit, which serves as the foundation of divine authority, it reaches the true understanding of reality and is able to perceive rights as they exist in the world and phenomena.

It is important to highlight the significance of “honesty” in understanding and explaining rights. For example, one who believes that Islam is the true religion and sees the freedom to choose this unadulterated and pure faith as a fundamental right for every human being, should honour the “right to honesty” and consider it the primary right. This implies being honest with oneself and with God — the one who has chosen this religion for them — by adhering to its commandments and truly becoming a Muslim, just as one must comply with the laws of a country when accepting its citizenship. This is the “right to fairness” which necessitates respecting the “right of citizenship”. Similarly, the acceptance of a religion implies a commitment to all its tenets, including the judgement that, in certain circumstances, an apostate may be sentenced to death. This is a judgment that an individual commits to upon embracing the faith, and if they disregard this tenet, their ignorance is a result of their own actions and not of the religion itself, as discussed in jurisprudential principles: “Coercion arising from bad choice is not incompatible with choice.”

In any case, when we accept that the origin of rights is existence and its manifestations, nothing — not even religion or faith — can strip an individual of these rights, and no conflict can arise between religion and humanity, unless the religion is not the true one or if human understanding has mistakenly erred in discovering the truth.

We, both in philosophy and law, are “existence-oriented,” and divine rights are analysed and interpreted in this context. For example, the “right to freedom” is a right derived from existence and manifestation, but this right has boundaries. Absolute freedom, or more accurately, “liberation,” is not a right that can be abstracted from existence or manifestation. Rather, freedom and the “right to choice” are inherent in both humans and other beings, as they are jointly established and may lead to adverse outcomes for individuals due to the multitude of causes affecting them. This, however, does not negate the compatibility of free will with freedom, as jurists discuss this as the principle “the impossibility of avoiding choice does not contradict choice.”

Religious Creation

We consider religion, like rights, a real phenomenon that pertains to the nature of its existence and manifestation, and has been revealed to us through divine guidance. Religion is not a social phenomenon like language or culture, which is influenced by the environment, family, and society. It is not the case that if an individual lives in Iran, they must, by necessity, speak Persian, practice Persian culture, and follow Islam, while in England they would speak English and follow Christianity. Just as one can change their language and culture, so too can an individual change their religion, as the freedom of will initially grants a person the ability to adopt a different faith, since the acceptance of religion depends on the individual’s understanding of existence and phenomena. An individual, based on their rational and spiritual faculties, can only accept one religion that aligns with the truth, not the one followed by their ancestors or the society in which they were raised.

A religion that is based on truth and the original text of the divine law has genuine decrees that arise from the manifestations and rights of phenomena in reality. Just as every phenomenon has its own rank in truth, these decrees also assign a rank to every phenomenon and limit it accordingly. One who accepts the religion’s essence also accepts the responsibility of observing all of its decrees, without intentionally violating even one. Otherwise, in some cases, their misconduct might lead to apostasy.

Apostasy, in religion, is similar to defection from intelligence agencies, which may result in pursuit or even death, as the person is putting confidential information at risk of exposure. The death penalty for apostasy is a “religious right,” and it is through this right that religion protects itself from cultural conspiracies, much like how the Jews in the early days of Islam, who would embrace Islam in the morning and deny it in the evening, used to destabilise the faith and confuse young Muslims.

Every religion and every nation asserts this right for itself, just as intelligence agencies and governments impose restrictions on the movement or residence of foreigners to protect their citizens and nationals.

It must be noted that we consider a religion truthful if it is based on revelation, not a phenomenon or method influenced by social circumstances. The religion we consider to be true is one that is divine and heavenly, untainted by corruption or distortion. Such a religion aligns with collective rationality.

While it is true that confronting conspiracies and desecration of sacred matters is a right, how followers of religion interpret and enforce this right is another matter. For example, it is possible that Muslims who come to power may not apply the essence of their religion in their governance, and their practical and specific actions may not conform to the legal principles revealed by truth.

The Layers of Religion

In the previous discussion, we encountered the example of “apostasy,” and in order to clarify this issue further, we must examine certain aspects of it.

Firstly, the philosophy of rights asserts a right called the “God-centric right,” meaning that God proves His own existence and manifestation to all human beings. In contrast, there is another right — the “right to be a servant of God” — meaning that all human beings, in relation to God, who has proven His divine right to Himself, have the right to servitude and obedience. This right has also been confirmed for them. Of course, it is not necessary for the proof of God’s existence to be through empirical investigation; it can also be through imitation. The notion that imitation in matters of religious principles is not permissible is inaccurate; we say that servants have the right to accept religious principles through imitation, as long as this imitation brings them certainty, which is sufficient for them.

The preservation of the believer’s life is of great importance in the Shi’a school of thought, and Taqiyyah (dissimulation) is legislated precisely for this purpose. A believer who is on the right path and whom God has guided to the truth should not involve themselves in conflicts arising during the period of Occultation (Ghaybah), even if such conflicts have a religious facade. Instead, during the period of Ghaybah, retreat from the worldly people is encouraged. However, there are occasions when some men of God, like Imam Hussain (AS), must rise up and expose the hypocrisy of those who falsely cloak themselves in the guise of religion. This duty is a specific mission given by God to certain of His chosen servants. In contrast, the general duty during the period of Ghaybah is to avoid the storms and trials of the worldly people, as joining them leads to nothing but worldly loss and spiritual ruin.

It is essential to note that religion has multiple layers. The version of religion institutionalized within society by ordinary scholars who are not infallible may differ significantly from the divine and revealed religion. It may evolve into a purely social phenomenon that lacks harmony with the divine revelation and the teachings of the Prophets. In this case, the religion held by society may be more of a social construct rather than the true, revealed guidance.

Attention to Rational Understanding

The philosophy of rights must address all aspects of a right to avoid misunderstanding. In this context, we must consider another dimension of legal epistemology related to the source of understanding of rights. This involves recognizing the importance of the collective rational understanding from different schools, nations, and scholars. Rational rights shared among them can help uncover rational legal principles because collective rationality is less prone to error, unless an individual holds an autocratic or imperialistic nature, denying the inherent dignity and respect of human understanding. Such individuals may also disrespect the fundamental rights to think and to know.

In healthy societies, it is impossible for all nations and religions to recognize a right that has no roots in the reality of those societies or does not correspond to a true, inherent right. Just as we accept the Quran as having rational validity, it is impossible for the Quran to contradict collective rational understanding. We cannot declare something universally acknowledged by all rational people as being irrational. Rational beings, by their nature, are inclined toward goodness and seek to avoid harm, provided they are not entangled in selfish motives.

Difference between Freedom and Liberation

There is a fundamental difference between “freedom” and “liberation.” We speak of the “right to freedom” and not the “right to liberation.” Freedom requires a framework to exist; it cannot exist without boundaries. Unlike liberation, which accepts no boundary or structure, freedom is a right that thrives within specific constraints. For example, a door is only a door when it exists within a frame and is attached by hinges. If it is not within its frame, it is not a door; it is merely a piece of wood.

In contrast, liberation lacks structure and rules. Freedom, however, is based on rules and frameworks. For freedom to be meaningful, it must adhere to established rules; neglecting even the smallest rule results in “trespass” or “violation,” granting others the “right to intervene” in defense of their own rights. Hence, freedom exists within certain bounds, much like the freedom of wild animals in nature. They follow their natural laws, just as humans have a “right to hunt” for sustenance, not for entertainment.

Political Systems and the Right to Freedom

Modern governments, representing the collective rationality of their people, are expected to act in the best interests of their citizens. Therefore, restrictions such as limiting the “right to freedom” are justified when they stem from real truths and are not imposed arbitrarily. Such limits should reflect the nature of freedom itself. For instance, the freedom of an army officer or a religious figure is not the same as the freedom of an ordinary person due to their societal roles and responsibilities.

In this regard, it is necessary to understand that “freedom” is distinct from “liberation.” Freedom is defined by rules and structures, while liberation is the absence of these constraints. The true form of freedom exists within the boundaries of societal agreements and laws, and when these boundaries are ignored, it leads to a breakdown of social order.

In conclusion, the distinction between freedom and liberation is essential to understanding both individual and collective rights. Social and political structures should always preserve the essence of freedom, which requires respect for rules, order, and balance.

As is clearly visible among the animals of the forest, there is also difference among human societies. However, such differences should not lead to the formation of classes; otherwise, the society would be governed by tyrants and plunderers, and it would remain under their control. Just as animals can be trained—such as dogs, which sometimes perform physical searches better than trained human officers—human societies too can be educated, and with misleading teachings, their nature can be deviated.

In the realm of nature (Nasut), there is a law that “everything is convertible.” The conditions for conversion must simply be met. Nasut provides humans with the potential to draw closer to the Divine and attain unity with the principle of “being.” This unity is realised through the annihilation of the actions, attributes, and essence of the servant, at which point God replaces the servant. If God descends, it becomes Nasut, and if the servant ascends, it becomes God. Furthermore, even those who penetrate into the unseen and encounter the metaphysical—since they emerge from backgrounds, talents, and powers different from those of the Earth—each acquires a distinct capacity and becomes different from others. Therefore, it is not possible to establish a classless monotheistic system, even among the prophets, let alone among ordinary individuals. Such a theory is the result of misguidance and ignorance of the truths of existence.

In creation, there is no concept of “equality” or “sameness.” Equality does not even exist between two identical entities, let alone between heterogeneous ones, such as men and women. Equality and sameness do not even exist in mathematics, and we cannot say “two plus two equals four” in an absolute sense. “Two plus two” is equal to “two times two,” which in turn equals “one four,” but it is not the same; just as two poor people cannot be equated with a rich one.

We consider “class” to be akin to “liberation,” discussing it as a crime to mention it. However, human nature is such that in prison, a person develops a certain character, and in sitting upon a throne of power, a different one emerges. This difference is well illustrated in the composition of “the Sultan and the Shepherd.” The environment always influences the thoughts and ethics of individuals, and there are few powerful thinkers who can speak without being influenced by the environment around them. Deceptive tricksters and the powerful, through cunning, have created the class system for the masses, allowing cartels to exploit and colonise the people, and subtly realise their criminal tendencies. Those who proclaim equality and deny all differences are often those who have suffered under the colonial class system of the affluent and have become disillusioned. The class system was created by those who held scientific, military, or political power. Today, the monopolisation of science and technology by a single institution, company, or government has become the prevailing policy, with knowledge and experience only being imparted to those with mutual interests, creating the illusion that those born into this field are inherently more successful. As they say, “A child of a scholar is half a scholar.” They monopolised the transmission of knowledge and learning, preventing the less privileged from accessing it, thereby keeping the weak and subjugated in their place, preserving their superior power.

Class is a consequence of arrogance, monopolism, and exploitation, but differences in status are the result of individual talents and voluntary efforts. Therefore, if someone exercises poor judgment, their status is diminished, and if they exercise sound judgment, their status is elevated. Thus, status is not like class, where moving from one level to another is forbidden. On the contrary, both descent and ascent are possible. Moreover, class differences are based on arbitrary values and have no objective basis, whereas the values of status are real. The essence and manifestation of existence do not possess class, as the Holy Qur’an states: “You will not see any inconsistency in the creation of the Merciful; look again, do you see any flaws?” (Quran 67:3). In creation, there are infinite differences, differences that create status, not class. This principle should be clearly understood: “Every class has its differences, but not every difference leads to a class.” The relationship between the two is that of a “universal and specific relation.”

The Origin of the Philosophy of Rights

The first philosophers and thinkers who spoke about rights and their philosophy were from ancient Greece, with Socrates, Plato, and Aristotle being among the most prominent. The philosophical school of ancient Greece focused on all sciences, and its philosophers were expected to have knowledge of every field, including political science. Greek thinkers had a profound influence on later Abrahamic religions, including Judaism, Christianity, and Islam. However, they placed divine law above human or natural law, prioritising divine rights in the event of any conflict between the two. Ancient Greece, being the cradle of civilisation and knowledge, especially influenced the rationalists such as Aristotle, whose works were later promoted by the Abbasid Caliphs, especially Ma’mun, to counter the scholarly dominance of the Ahl al-Bayt, the Prophet’s family.

The influence of these thinkers—despite their non-infallibility—continues to be evident in Islamic philosophy. Some attribute this to the rational nature of their ideas, although we have argued that many of their propositions conflict with reason, and we have established a new philosophy that is entirely distinct from the philosophy of Mulla Sadra and the post-Sadra school.

Indeed, philosophers such as Plato, Socrates, and Aristotle were prominent figures whose intellectual greatness was acknowledged even by figures like Imam Ja’far al-Sadiq. Islamic philosophers, particularly after the Islamic Revolution, gained more support, and the thoughts of ancient Greek philosophers have even entered textbooks for students in modern times. In this regard, Martyr Ayatollah Motahhari played a central role in promoting their philosophy and gaining widespread acceptance of it. However, whether scientific propositions belong to ancient Greece or to religious cities, the important aspect is whether these propositions are true and correspond to reality.

All miracles have a natural analysis, and their formula for execution can be discovered, not the manner of disruption or breaking of custom, which is a superficial approach to the miracle. In a miracle, what dissolves is the substance of nature—something that, under normal circumstances, would take many years to change—but in a few moments, it is transformed, and the natural process is accelerated. In the past, the primary mode of transportation for societies was the bicycle, but today, we have access to jets, and a system for generating speed in movement has been scientifically developed. Since the societies during the time of the divine prophets did not possess high levels of scientific knowledge, they were not in a position to ask their prophets to explain the miracles. If there had been a scholar during the time of the prophets who understood the laws of nature, he could have asked for an explanation or formula for the miracle that had occurred. Among these, only the Samaritan, in his magic, provides a brief explanation: (I saw what they did not see, so I took a handful from the trace of the messenger and cast it, and thus my soul made it seem good to me).

Humanity will reach a level of scientific and rational development where the system behind all miracles will be discovered, and a scientific justification and formula will be provided for them, just as today glass is given a heat treatment to make it harder than steel. This is not extraordinary; rather, it is the discovery of a law of nature. Just as religion guides towards nature, instinct, and rationality, the miracle expresses the same, and not something beyond that. This is why the divine prophets were accused of sorcery, being magicians, or being possessed by jinn, as they were naturally familiar with magic and sorcery. The method of the prophets in performing miracles is not the breaking and healing of nature, but rather moving within its natural course, except that they expedite the natural process.

In any case, reason governs the law. Of course, law can inform reason and polish it to grasp meaning. It is not the case that reason does not have a developmental trajectory or is unaffected by the knowledge of the time; however, the perfection of the Islamic religion lies in its timeless nature, and humanity today—even the scholarly institutions that are responsible for religious affairs in the present age—has not gained any benefit from the religion and its scientific book, the Qur’an. It is future generations who will realize the scientific greatness of this book. Today, is there any use of religion besides the call to prayer spoken at birth and the prayers said in the cemetery? The perfection of religion lies in the 260 years of the lives of the Fourteen Infallibles (A.S.) and in the Holy Qur’an, not in what superficial theologians, some reactionaries, or eclectic modernists promote under the name of religion—this religion that has become corrupted by various adornments and wounded by ancient injuries. Until these adornments are removed, its renewal and relevance will not be understood.

The Process of Rational Thought

We said that reason is the only divine gift that God has abundantly granted to humans. Reason is associated with analogy and proof. A proof cannot be negated, and its negation is invalid. For this reason, its theoretical premises must return to axioms. Axioms and necessities are formed by the primary principles, observations, experiences, instincts, and sensory experiences, and reason derives its initial assumptions from them, thereby ensuring its soundness and protecting it from denial and doubt; otherwise, negligence and the introduction of any proposition based on common knowledge, dogmas, conjectures, or misconceptions will lead to the loss of the value of analogy and proof, as it is not necessarily valid to negate such propositions. The rule of contradiction grants value to proof by affirming its truth.

In any case, reason plays a discerning and confirming role in all propositions. In the case of observations, it is reason that, by analyzing and negating contradictions and returning them to something necessary, confirms and validates them. All other sources of knowledge return to it, and none stand independently.

Reason is an innate power that enables humans to distinguish general matters. While animals have partial reason, they do not possess universal reason and rely on instinctual (natural) discernment. This means that every animal, according to its nature, perceives certain things, whereas humans have the capacity for general recognition and, scientifically speaking, possess discernment power. Angels also have a form of discernment, but they perceive only certain matters.

Reason is a form of inner sight, psychological, and general ability, which, with the forces it employs—such as observations, sensory experiences, and other types of propositions—and by organizing them and producing a result, leads to judgment and the creation of thought.

Reason is an internal power with the ability to discern and recognize both self and others, and it can issue judgments and decisions on everything. However, describing it as an inner sense is somewhat of a misstatement. Reason is a power, not an act. It is a power that, upon taking the necessary premises from its subordinate forces, passes judgment and renders a decision.

Reason is not knowledge. Knowledge can be taught with effort, but reason is an innate and complete gift that cannot be acquired through education and is not an acquired matter.

Reason, in the sense of being an “anchor” or “holder,” is an institutionalized power of discernment, and in society, it is known as the “wise” (ʿuqalāʾ). In the framework of reasoning, wisdom manifests itself in populations, traditions, and customs. The soul, too, is a form of reason, but when mentioned alongside it, it may refer to a different level of understanding. If mentioned separately, it might carry a broader meaning, encompassing both. The soul is called the “rational soul” (nafs nāṭiqah), and it is the innate capacity for discernment. If we speak of the “luminous reason,” we refer to the level of reason given to saints and prophets, a higher form of reason. This reason is a special gift bestowed on those with sacred qualities or those with a higher form of guardianship (wilāyah takwīnīyah).

Reason, in its full form, exists in all human beings and is not limited by universal definition. It tolerates degree and relativity. Sometimes, reason is used to refer to the world of intellects and abstract entities, which should not be confused with the faculty of discernment present in humans, though this is its lower form. Some narrations from the Usūl al-Kāfī refer to this abstract realm of intellect.

We mentioned that reason can employ various forces. One of these forces is knowledge and scientific propositions. Thus, reason can enhance its data by utilizing knowledge or inner vision, and without it, it cannot issue a judgment or decision. These forces are known as the “armies” or “soldiers” of reason. Reason is a discernment power that, through the forces it commands, issues judgments and leads. Human cognition and perceptions can serve reason, helping it reach decisions. In reality, reason derives its sustenance, which enables its power, from the forces under its command.

We stated that reason is not an acquired trait but an innate gift. Therefore, the statement by Martyr Mutahhari, that “a child, at the beginning of birth, has neither mind nor reason and gradually develops reason,” is incorrect. Reason is ingrained in humans from the moment of conception, but it is so latent that it is not immediately apparent, and it gradually becomes evident. Just as the fetus at two months of gestation is not visible to the naked eye, it is later that the embryo’s features emerge. The innate awareness a newborn has is rooted in their reason. A newborn cries, smiles, feels discomfort, senses heat and cold, enjoys softness, recognizes its mother, and knows how to nurse. The infant possesses the power of discernment and reason, but this reason reveals itself through its subordinates, and as these subordinates increase, reason also develops and is capable of making correct decisions.

However, the difference between reason and the wise is that ordinary reason, when considered as a collective whole, is the wisdom of the masses. The development of the wise is also related to the circumstances of time, place, and other factors. For example, the collective reason of disbelievers differs from that of believers. Tradition, common sense, or the wisdom of society is a collective result of discernment, which is not distinct from reason. Even religion addresses the standards of reason and helps guide its foundations; however, reason has a general nature and perceives universal matters, while revelation can address specific details.

Reason does not comprehend details unless it enlists its forces, but revelation can independently understand both specific and general matters and thus can serve as a guiding light for reason, preventing it from straying.

Reason does not consider usury in quantitative terms but evaluates its quality. Quality is not a matter of common sense to say that the tradition does not regard it as a trade. Quality does not fit within common convention. Philosophy is where careful thought and understanding of quality are needed. For instance, in an exchange involving usury—where a higher quality item is exchanged for an inferior quality item—the rational mind considers the quality of the exchange. However, the law prohibits it, emphasizing that, even in the absence of a vehicle in the intersection at midnight, the red light still must be observed because of its societal weight. The law treats it as universal, applicable at all times and places.

In jurisprudence and social matters, there are general, conventional, and tangible weights, and specialized perspectives are not tolerated. For instance, in sighting the crescent, merely seeing it with the eye is required, and predictions based on astronomical knowledge are not deemed valid. Or in the case of “fornication,” mere intercourse is sufficient to establish it, and covering the genitalia does not change

Today, discussions such as those about the “rigid particles” once proposed by Greek philosophers, who considered atoms unbreakable and solid for thousands of years, are being revisited. However, today atoms are considered breakable.

Order exists in the essence of being and its phenomena, and we speak of the “system” of existence. However, humans, in the realm of the mundane (nasut), possess free will and choice, which allows them to disturb the natural order of creation and nature. Nature is like the solar system, which must move in specific orbits; yet, humans are free and can disregard the order of anything. This is why we can observe disorder. Of course, by disorder, we mean a deviation from the natural order, because even disorder is governed by a specific and defined system. Anyone who follows that system can realise this breakdown of natural order.

Since humans possess a collective status and will, and their will can be directed toward their lower self (nafs ammara), they are capable of causing the greatest disturbances, which are organised and systematic, within the creation’s order. For example, one might hold a lighter flame in front of a woman’s face to quiet her screams, deliberately distorting the natural disorder and deviation with a psychological order. Another example is the swerving of several vehicles due to one individual driving recklessly, while the perpetrator remains unharmed.

Existence and its external manifestation are orderly. If someone claims disorder in nature, it means they have failed to recognise its order, and their understanding of the phenomenon is weak. The inability to comprehend does not mean that something does not exist.

Western philosophers tend to focus more on liberty than on order because they have experienced long periods of oppressive regimes where liberty was denied. Therefore, they have developed an allergy to liberty. However, no one opposes the idea of order, at least not to the extent of denying its standard. Tyranny and the deprivation of liberty lead to explosions, much like a water tank that explodes when it exceeds its boiling point. This is the inherent characteristic of despotism. Limiting freedom creates a false thirst for it, leading to liberation and the neglect of the framework of liberty. The Western philosophers’ allergy to liberty stems from their oppressive historical experience.

Another example is the period when white Westerners enslaved Black people. Nowadays, the reflection of this is that white women now willingly subject themselves to black men, and white men have an inclination towards black women, buying their flirtations. In essence, Black people today are reclaiming the lost rights of the past from the Westerners. This is a form of intelligent natural retribution, which has befallen the West, a form of retribution that we discuss in detail in the book The Knowledge of Life.

The Historical School of Law

We consider it necessary to understand religions, various philosophical schools of law, and the history and background of this science because we stated that all societies consist of rational beings, and since rights are existential and are discovered by reason, each religion, school, or doctrine has discovered some aspect of it. By having the history of law, reason can be aided in discovering and abstracting rights from existence and its phenomena. Some Western philosophers have excessively proposed the idea of a “historical school of law,” which attempts to examine and analyse law using the tool of history.

The origin of this school dates back to 18th-century Germany. This school views law as a product of the customs, language, and culture of nations, and considers it a product of the collective conscience shaped through historical processes. It asserts that only the customs and practices of nations, based on the connection between generations at a specific time and place, influence law. In this school, the will of the individual and the state has no role, and the jurist is not a creator of law but rather a discoverer of the customs and the collective conscience embedded within them.

The historical school identifies four sources of law: “custom, law, doctrine, and judicial practice.” Among these, the most important source of discovering law is “custom,” which reflects the practices and norms. Law, therefore, is simply written custom. Since understanding law requires understanding the customs and practices of nations, the history of law becomes essential. This is why this school regards the foundation of legal science as its history because discovering any law or legal principle necessitates referring to the culture, society, and the historical development of customs and traditions in that culture.

We view the history of religions, schools, nations, and in one word, custom, as a “tool” for discovering rights, not as the “source” of discovering them. This school confuses the tool for discovering rights with the source of their origin.

Studying the customs, traditions, and practices of nations and schools helps legal philosophers discover rights because these nations have been rational beings, and they have made philosophical efforts to uncover their rights. However, whether what they consider to be their customs and traditions represents true rights is a different matter, since customs and traditions are not necessarily in harmony with unerring reason. Mistakes in interpretation, cultural preferences, and ethical practices have all contributed to the shaping of customs and traditions. There are many traditions that are not only contrary to human rights or existential rights but are also clear instances of oppression and injustice. Some rights also arise from incomplete discoveries and have not been placed in their correct positions.

Furthermore, some rights are geographically or regionally bound, and it is incorrect to consider them valid for other peoples or regions. Custom and tradition can be seen as the type of humanity that has recognised certain rights, though this recognition might be correct, flawed, or incomplete. For example, certain masters and feudal lords may institutionalise a “right,” like the right to enslave, which has no scientific basis and is nothing but oppression.

Customary and traditional rights may be the result of political games, feudal exploitation, economic cartels, or the rulers’ manipulation of the population, without possessing any truth. Many harsh, inflexible laws originate from custom and tradition, such as the “honour killings” carried out by some Afghan communities, where it is viewed as a “right” to defend familial honour, despite its clear injustice.

History, in essence, represents the reality of social structures, which itself is an effort to understand the external truth or to distort and manipulate it. These realities are influenced by the environment, geography, climate, and the temperament of the people in each society. Although the creators of customs and traditions may be scholars, thinkers, rulers, or ordinary people without philosophical insight, their constructions are not always based on scientific or philosophical foundations.

The law that is discussed today lacks the necessary engineering and is more experiential than scientific and philosophical, rooted in a philosophy of law. In fact, it represents the restoration of a dilapidated legal structure built by empirical builders, rather than the construction of a modern and scientific edifice of law. What is referred to as historical law is actually the history of law, a product of past customs, traditions, and realities that have been passed down to us through experience, not scientific design. This structure has expanded, become more complex, and has now grown into the current human rights framework. However, because its foundation lacks proper engineering, numerous problems have seeped into it, even affecting minor regulations like traffic laws, which are merely legal constructs.

It must be noted that the concept of the union of the state and law refers to the notion that law is something constituted and created by the state. Hegel views law as something instituted and arbitrary, and the creators of law are the states. This school of thought is part of the schools of actual law, which, according to its philosophy, does not align with truth. Law is a product of existence, and it is a constitutive matter, not a conventional or arbitrary one. Primitive humans, before establishing city-states, were aware of their fundamental rights. Therefore, law existed before the state. States have neither created law nor even guaranteed it. States have often perpetrated numerous invalid acts and injustices against the people. While states can play a role in discovering and implementing rights, historical experience demonstrates that they have often been imperialistic, colonial, and deceptive in nature.

Moreover, the state is an arbitrary entity, whereas law has an objective existence. The state plays the role of a guardian, but one that can betray. On the other hand, law is constitutive and gradually manifests in the external world, transforming into ethics, custom, or culture. The state’s role in recording and counting is a consequence of civil society, and the equality of rights and the state is one of the incorrect assertions of this school of actual law.

Although Hegel believed in the existence of God, he is recognized as the origin of nationalism and socialism. The dictatorial and despotic governments of fascism and Nazism in Italy and Germany, as well as the materialist dialectic in the social sphere, which gave rise to the socialist and communist ideologies in the former Soviet Union, emerged after Hegel.

These two doctrines clashed during World War II, which led to fifty-two million casualties. Of course, this is the nature of the political class that suffers from hubris, and not a war derived from Hegel’s teachings.

Fascist Government

Fascism derives from the word “fasces,” which means a “group of people who are interconnected and share a common goal.” The common goal of fascism in Mussolini’s view was the state. He required everyone to be subordinate to the state. In his perspective, the state is the measure of values, and whatever the state deems good is good, and whatever it deems bad is bad. Thought, love, art, and religion all manifest within the state. For instance, art is art only if it is part of the state, otherwise it is not considered art. Based on this, the separation of powers is meaningless, and whatever the leader of the state decides is law, and the state itself is immune from any accountability.

Mussolini sought a dictatorial government; otherwise, the state is a system and a title that is never attributed to a person. The governing state is not referred to as the leader or ministers, and they are not immune. Instead, it is the state that has immunity, meaning the laws that are enacted. The state is not a real person, but a legal entity. Therefore, state officials are the discoverers and executors of the law and rights, not the law itself, and they are not immune in terms of their real personalities. Naturally, there should be a distinction between a person’s real personality and their legal personality.

Nazi Government

The Nazi regime emerged in Hegel’s environment, namely Germany. Hegel believed that the result of human contradiction was the movement toward a superior race and the elite. He called the Germans the superior race and strengthened their sense of nationalism. When the Nazi Party seized power in Germany, they appointed a leader, the Führer, and considered race to be the foundation of the state. The Nazis viewed social rights as stemming from racial desires and said: “Rights should be enacted for the superior race, and whatever the owners of the superior race desire must be provided. Something is good if it aligns with the spirit of the superior race, otherwise it is bad.” Hitler, who was the Führer of the Germans, considered himself the judge of the nation and claimed a mission to spread the voices of the Germans and Germans (the superior race) across the world. He viewed the entire state as the will of the Führer and believed everyone should obey him.

The main critique of Nazism and fascism is that they claim ownership of the state, while in practice they are dictatorial and tyrannical regimes that do not have a true state. In such a government, it is the individual who holds sovereignty, not the state. There is a contradiction between the Führer and the state, and the Führer cannot possess the state; although this despotic individual, through personal tyranny rather than through law and philosophy, took control of a large portion of Europe. After rising to power, he crafted a philosophy, at great cost and through the acquisition of intellectuals, to justify that rights were enacted for the state, not by the state for rights.

Socialist School

This school places contradiction within society, not nature and phenomena, as Hegel suggested. In society, there have always been two opposing classes: one is the working class of laborers and peasants, the “proletariat,” and the other is the class of capitalists, landowners, remnants of the aristocracy, petty capitalists, and feudal lords, the “bourgeoisie.” The combination of these two classes forms “society.”

This school considers the economy to be the foundation of all social transformations and believes that all revolutions have economic goals and that human philosophy and thought are designed based on their livelihood. Thus, a wealthy person has a different outlook compared to a poor philosopher. In reality, it is these social classes that shape societies. Social classes also vary based on ownership. Marx, focusing on the production process and demand, says: “Production is carried out by the lower class, and purchase is carried out by capitalists. More production leads to more purchase and the monopoly of the product in the hands of capitalists, without increasing wages, causing wealth to grow among the capitalists and poverty to rise among the working class.” Therefore, justice without an intermediary government — which has the purchasing power of the lower class’s production — is not achievable. Thus, individuals in society, whether working-class or capitalists, become tools of the state, and the gap between classes decreases. Since religion or philosophy justifies capitalism and weakens the working class, it must be regarded as the opium of the masses, and through workers’ revolutions and the establishment of a government supported by them, all these exploitative factors must be eradicated, and a classless society must be established.

Marx’s statement, though detailed, serves as a justification for the necessity of a “state” and legitimizing it. However, the fundamental flaw of this school is that its denial of class — which is a primary goal in this philosophy — leads to the negation of differences. We may not have classes in society, but we cannot eliminate differences and hierarchies. As mentioned earlier, we must distinguish between “class” and “rank.” Denying differences in a society leads to stagnation and removes motivation from individuals with superior talents and skills. While it is true that religion and philosophy can be tools for exploiting the lower classes in the hands of capitalists, such a phenomenon has no connection to the socialist school, which cannot negate it simply because religion, science, and philosophy have become instrumental tools; this school itself became an instrument in the hands of the former Soviet state to exploit the masses.

Possessing capital is not inherently negative, and having capital is consistent with human nature, provided that each person earns their capital through honest work. Everyone should acquire their capital through their own labor, otherwise simply buying others’ work in exchange for securing their basic needs through a fabricated entity called the state is servitude to the state and does not preserve the dignity of the working class. Work and effort are for the individual, not for the state. The capital earned through honest labor cannot be taken away from someone. The principle of having capital is a social truth and a product of one’s effort and work. Each person’s capital is the result of their own labor and is theirs. This is a natural rule, and the socialist school, by nationalizing labor, violates this natural rule and takes away the right to own capital. The disruption of the natural right to own capital is a major flaw of the socialist, communist, Marxist, and Leninist schools.

As stated earlier, a person’s capital is the result of their work and belongs to them, and each individual possesses capital according to their ability. The result of each phenomenon is different from others, and there is no such thing as equality or likeness in the actual world. Differences exist everywhere, including in the ownership of capital, but class is a result of exploitation and tyranny. We must be careful that differences should not lead to the creation of classes, and this can be achieved not by taking away capital from individuals but by respecting human dignity and the truth of humanity. Human dignity is tied to one’s humanity, not to the capital they possess. Capital does not have intrinsic value in a person’s character, but it serves as a tool to achieve human dignity.

The essentialist view of capital, as expressed by socialists, leads to the denial of human dignity and confuses “means” with “ends.” Thus, we must focus on four principles: the right to own capital, the right to differences in capital, the right not to let differences lead to class creation, and the right to preserve human dignity.

To prevent differences from becoming class-based, taxes must be imposed. Religion also plays a role in this regard by establishing a system of contributions in society; however, these laws have not been implemented properly, and this has led to the dysfunctional division of society into two classes: the poor majority and the wealthy minority. The failure to implement religious programs or to design a proper system for managing society is akin to neglecting a garden, leading

Religion and the Need for Righteous Administrators

Religion requires righteous administrators, and without this, it retains both its perfection and completeness, such that it has been finalised and transcends time. The Shi’a perspective for governing the society is based on the Qur’anic text and the traditions of the infallible Imams. The worldview and ideology of this perspective are complete and superior to human knowledge. However, the implementation of this system must be carried out by an infallible person, or at the very least, a just mujtahid who possesses, to some degree, a divine grace or virtuous disposition. The Shi’a were unable to benefit from the governance of their infallible leaders. The practice of isolating the infallible and persecuting them became common among the oppressive caliphs. During the period of occultation, this plan has not been realised until today. However, through the blessing of the martyrdoms of the Shi’a and the struggles that Imam Khomeini, the Imam of the Martyrs, undertook, Shi’a scholars began to cooperate and, initially, documented religious teachings, purified them of any distortions, and, in the next step, condemned extremism and eliminated it both from within and from the fabric of society. They also removed secrecy, hypocrisy, and deceit from the rulers and religious authorities. Additionally, a system was established for the monitoring of all state revenues and religious dues, making both their inflows and outflows transparent. Subsequently, the expenditure of such revenues was gradually legalised and implemented. Of course, traversing the path of confronting the honourable thieves and those whose interests are at risk, as well as those who remain like the priests of temples (whom we refer to as the impediments in our writings), is very difficult. However, this path is progressing, and gradually, all will adhere to regulation without the need for radicalisation or revolution!

The School of Social Rights

One of the legal schools that emerged in Europe with academic prominence and general acceptance, following the recognition of sociology as a science, was the “Social School.” The prominent figure of this school believed that “legal rules are created by the public conscience and society, not by ethics or religion.” He viewed the three historical periods—religious systems where religious rule prevailed, the “post-Renaissance” period where philosophy dominated, and the “scientific era” which pertains to sociology—as the three human stages. These stages are particularly relevant to European humanity. He considers law a social phenomenon akin to language, culture, religion, and ethnicity, which can be understood through the sociological tools of statistical and historical research. In this process, the mind must be emptied of rational, philosophical, and religious criteria and examined solely through social phenomena.

A prominent follower of this school argues that crime exists inherently in society and cannot be imagined in a society where crime does not exist. Therefore, crime should not be viewed as contrary to social nature but rather as a necessary element for the growth of society and should not be seen as an illness or abnormality. He uses the example of the trial of Socrates to suggest that crimes or transgressions led to the formation of ethics.

In this school’s view, law is a social construct and is analysable through social tools. For instance, if one wishes to determine whether the interaction between boys and girls in secondary schools is a right or not, one must resort to empirical data by studying mixed and non-mixed schools and analysing the criminal effects of each, and from there, discover the right.

Against Comte’s division of human history into the periods of religion, philosophy, and science, we, considering the structure of society, argue that there are three types of society: authoritarian, divine, and democratic.

The example of an authoritarian society is societies that follow capitalism. A divine society, on the other hand, refers to the community of Prophet Muhammad (PBUH) in Medina or the kingdom of Prophet Solomon (PBUH), where the management and governance of society were based on revelation and divine guidance. However, in Islam, after the prophetic governance and the four-year reign of Imam Ali (PBUH), we have not had a truly divine society, except for the Islamic Revolution, which, in principle, claims to embody it. In practice, due to numerous internal and external obstacles, the realisation of such a society remains distant.

Divine communities, in principle, are ideal societies for humankind because their laws are divinely inspired, knowing well the needs of humanity. On the other hand, the democratic systems that emerged from human progress, based on trial and error, are built on experiences and are still in the early stages of development. Sociology, as a discipline, has not yet produced tools free from errors for uncovering and studying social phenomena. Unlike divine societies, where scientific studies easily yield conclusive results.

Social or People-Centred Government

The merit of people-centred societies lies in their relative liberation from authoritarianism, where no single individual holds authority over society. Instead, authority is based on the collective opinion of the people, and thus, at least to the extent of fifty-one percent, such a society is governed by democratic principles, with some degree of freedom. While such societies are not free from the potential for authoritarian rule by a majority, the democratic system, if managed wisely and with the advancement of knowledge, can naturally lead to societal improvement and general consent.

The divine governance in theory offers knowledge, law, and divine rules, yet in practice, due to the absence of an infallible administrator, it is difficult to find a well-versed and capable executor of this divine system. The so-called divine governments have, in practice, often been authoritarian. These governments, hiding behind the name of religion, have, in reality, indulged in various forms of corruption, from oppression and exploitation to the misappropriation of public resources.

Conclusion: The Nature of Society

The question of whether the individual or society is of primary importance has been debated by sociologists. Those who favour the individual argue that society is merely a construct arising from an unspoken social contract meant to address human needs. This school of thought places emphasis on the individual, highlighting their economic interests and focusing on personal welfare and rights.

To determine whether the individual or society holds primary importance, we must first arrive at a clear definition of what society is. Based on this understanding, we can then ascertain the primacy of either the individual or society.

We propose the following definition of society:

“Society is a collective, productive unit formed from the interaction of individuals, possessing a harmonious essence founded on unity of thought and shared purpose.”

In this definition, “individuals” and “people” are included because society, from a scientific perspective, cannot exist without people.

Society, as a unit, is a true synthesis; it is the coming together of individuals to produce a new entity. Unlike the materials of a building, which can be separated and examined, the combination of individuals in society forms a new reality, which cannot be broken down into individual parts. The unity of society is a true, albeit more subtle, unity than that of the physical body, yet still meaningful.

As we have argued, society is not an abstract construct but a real phenomenon created by the interaction of people. It is not a mere collection of individuals but a unity in which the whole is greater than the sum of its parts. The unity of society, like that of the human body, manifests in its collective actions and decisions, influencing and being influenced by all its members.

Critique of the Opinion:

It must be stated in criticism of this view: The subject of society is human beings, and humans do not possess any mechanical or automatic essence; rather, they live with and in society through their thoughts, and through a collective purpose and ideology, they come to agree and share a common creed. However, in an artificial system, the consciousness of the individual, society, and its constituent members is not taken into account, and the system operates in a deterministic way, resembling a machine-driven assembly process, rather than a collective thought or unified culture (of course, the intention here is to reference a collective thought and culture that does not lead to coercion).

Thus far, we have provided a definition of society and explained it with its related qualifications. In the definition of society, there must be conditions that, in addition to encompassing all individuals and societies, whether small, large, regional, or transnational, prevent the entry of external elements. In this definition, nothing should be allowed that does not belong to society. To achieve this purpose, we state the definition as follows:

“Society is a living reality, resulting from the shared life of human individuals who are aligned in their needs, interests, and common desires (particularly their appetites). Their goal is to ensure each other’s rights—especially the right to life—and to fulfill their needs for better survival, a process which is carried out in accordance with established laws. These laws are adhered to through awareness, and they encompass the respect for, defense of, and development of rights and needs.”

If we want to state this definition in slightly different, shorter terms, it can be said as:

“Society is the result of collective and systematic power, derived from the conscious and accepted relationships of like-minded human individuals, who share common needs (especially the need to respond to their appetites) in order to address their mutual desires.”

We have elaborated on the qualifications of this definition in the book Sociology of Religious Scholars.

Morteza Motahhari’s Perspective on the Definition of Society:

The late martyr Morteza Motahhari was an influential thinker in the Iranian cultural and intellectual landscape following the Islamic Revolution. His works bear the responsibility of cultivating the culture of revolution. While his sociological views are sparse, they remain the focus of attention for academics in the field. In our country, there is a noticeable lack of social philosophy, which requires special attention. Motahhari, in discussing whether the individual or society holds primary importance, offers a distinctive theory on the definition of society, which he claims aligns with the Islamic view. He states:

“Society is a real compound, and of the natural compounds; however, its composition is the union of spirits, emotions, thoughts, desires, wills, and, in one word, culture—not the combination of bodies and limbs.”

To illustrate his view, he offers the following example:

“Just as material elements, through mutual interaction, create the conditions for the emergence of a new phenomenon, and a new compound is created where its components continue to exist with a new identity, human individuals—each with their innate and acquired capacities—enter social life and spiritually blend together, creating a new spiritual identity known as ‘the collective.'”

A point that is not properly addressed in this view is the integration of the individual into society. Although society has a true composition, it does not dissolve the individual within it. It is true that individuals influence one another, but each person’s individuality remains intact. Society is not like water and soil, where its mixture results in mud. What makes society a society, and what constitutes its essence, is the unity of purpose and specific dignity, not the absorption of the individual in such a way that they lose their personal identity. Society is nothing more than a gathering of individuals, and this collective identity is inherently a result of mutual influence and interaction.

Motahhari argues: “This composition itself is a special kind of natural composition, which has no counterpart. This composition—because the components influence one another and cause changes within each other, thus gaining new identities—is natural and objective. However, since the whole and the compound do not exist as a single, real unit, it differs from other natural compounds. In other natural compounds, the composition is true, as the components undergo real influence and their identities change, and the compound becomes a true unit.”

The critique in this passage lies in the fact that Motahhari asserts that “the identities of the individuals change.” While it is true that society impacts the individual and vice versa, and that unity of goal and dignity exists among all members of society, this unity is not so profound that individuals lose their original identity. On the contrary, their individual characteristics remain intact. Motahhari considers society to be a real compound of the natural type. While it is true that what is composed in society are spirits, thoughts, desires, emotions, and wills—and ultimately the composition is cultural—drawing an analogy with material elements is not appropriate. Just as it is incorrect to say, “The components of matter, after mutual interaction, lose their form and acquire a new form,” it is also inaccurate to suggest that in a natural composition, the elements lose their individuality. In society, while individuals are influenced by one another, their personal identity does not dissolve into the collective. The collective identity of society exists, but the individuals retain their independent identities. The composition of society is indeed real, but not material; rather, it is a true, non-material (cultural and spiritual) composition. The result is a new form, without the dissolution of its individual components. This kind of composition, which Motahhari seems to overlook, is not a physical, material transformation, but rather a cultural and spiritual one.

A Marxist View:

Another perspective on the individual and society, often associated with Marxist thought, posits that society is a true compound, but its composition is superior to that of natural compounds. According to this view, in a natural compound, the components, prior to their combination, retain their own identity and produce a new phenomenon through mutual interaction. However, human individuals, before entering social existence, have no human identity. They are like an empty vessel, only possessing the capacity to receive the collective spirit.

We disagree with this view, which entirely negates the identity of the individual. We believe that even an individual living alone can reach a level of development where they themselves form a society. For example, the Holy Quran refers to the personality of Prophet Ibrahim as “a community in himself” (Quran, 16:120).

Based on the above, an individual can indeed be a society without having their identity absorbed into society, and without the dissolution of their selfhood. However, it cannot be denied that an individual is influenced by the culture of their society. Just as an individual who constitutes a community influences the public culture with their thoughts and ideas, the presence in society does not negate the individual’s existence or thoughts. For instance, in Iranian society, religious minorities, while maintaining their own religious independence, participate in the general Iranian culture. This example demonstrates that the definition of society should speak of a true composition, the interaction of which is cultural, without leading to the dissolution of the individual’s identity and thought.

Difference between Ummah, Nation, and Society:

Motahhari, in his writings, equates the term Ummah with society. He interprets the Quranic verse (Quran, 7:34) where “Ummah” is used in the context of society.

We argue that the term Ummah incorporates religious, doctrinal, and spiritual dimensions, while the concept of Nation refers to a common geographical and territorial bond. Both terms share similarities but differ in their underlying connotations.

In the concept of Nation, the term implies constraint, pressure, and the collective force that unites people under the influence of law. When individuals come together under such pressure, they become a “nation.” A nation, in addition to being rooted in a common foundation, is inherently tied to geography, whereas Ummah refers to a unity formed through shared religious principles.

Some dictionaries derive Nation from “amal” (to will or decree), associating it with religious commandments and divine will. In modern usage, however, Nation refers more to geographical borders and territories, rather than a religious or spiritual doctrine.

Our view, however, is that the concept of “nation” pertains to the land, which, in the past, was primarily associated with religion in terms of usage—not its fundamental meaning. This is because land and geographical borders did not hold inherent significance and were not officially recognized. However, over time, as governments formed, borders gained legitimacy, and the term “nation” regained its expanded meaning.

With this explanation, it becomes clear that the term “nation” cannot in any way be equated with “religion”—as suggested by Martyr Motahhari. “Religion,” in this context, refers to a way of life that is not influenced by either Islam or disbelief, as the Holy Quran addresses the disbelievers, saying, “For you is your religion, and for me is my religion” (Quran 109:6). Religion, in its essence, is a way of life, and land or homeland does not interfere with it. Although today “religion” is commonly understood to refer to divine, heavenly, and immutable guidance, it still does not have any bearing on land or homeland.

In summary, it is not possible to translate “nation” as “religion,” nor can we derive the term “community” from “Ummah.”

The Primacy of Society or Individual

As previously mentioned, possessing the identifier of society allows us to address the question: Is the primacy of existence attributed to society or the individual, and does society precede the individual or vice versa?

We argued that society is the product of the real combination of individuals—not merely their mere aggregation—and it is akin to a child, which is the product of a father and mother, but with the distinction that in this case, there is no singular parental entity, and a new, independent entity emerges. Society possesses a unified identity, to the extent that one can no longer regard the individuals within it as discrete entities, except in certain instances, such as when society faces external threats, and it is the individual who can assist their society, much like how bone tissue may sometimes require skin from other parts of the body.

In society, an individual may refuse to bear their responsibility in crises, monopolize the resources that should be shared with all members, indulge in their personal desires, neglect societal concerns, and even consent to the downfall of society, which would ultimately result in their own ruin. However, it is neither entirely correct to assert that society always takes precedence over the individual, nor is it true to claim that the individual takes priority over society. Each of these propositions holds truth in certain contexts, and one must consider the specificities of each case. One should not simply give precedence to societal or individual desires; rather, it is essential to seek the true benefit. There are occasions when an individual must sacrifice for society, and at other times, the opposite may be required. If selfish desires are set aside, there is no fundamental conflict between the individual and society.

Ultimately, ensuring the wellbeing of society ensures the wellbeing of individuals, and vice versa. Society and individuals are not in inherent conflict; instead, they reflect each other. For example, reproduction should be subject to societal needs, and just as capital and budgets are managed, reproduction should also be planned to ensure the improvement of future generations and prevent those who are inherently defective from reproducing. Similarly, those who are mentally impaired, physically disabled, or of a lower intelligence should not be allowed to reproduce, while those with high intellectual capacity and health should be supported. This should be applied not only to individuals but also to families and groups, ensuring that those with inherently corrupt or flawed children do not have the opportunity to reproduce.

By implementing such a program, the societal resources spent on the care of the disabled, diseased, or criminal would be minimized, leading to a greater benefit for the healthy individuals within society. Of course, in limiting the propagation of defects, these should be scientifically proven and not based on uncertainty; that is, it must be predictably evident, not just a legal assumption lacking scientific validation. This concept requires a structured approach, and its execution must be systematic, accounting for the nature of individuals while also promoting public acceptance through cultural transformation, so that individuals avoid producing defective offspring, thus leading to gradual societal progress.

This concept is rational. If society does not manage the disabilities and defects of its members, the resulting costs will harm healthy individuals. Society should implement preventive measures regarding natural defects and crimes based on scientifically justifiable reasoning to reduce the costs of supporting prisoners and physically disabled individuals.

The point here is that there is no conflict between the individual and society; they are always aligned, and only when personal desires interfere does one neglect their responsibility toward society or the individual, causing harm to both. For instance, if a project like nuclear energy has collective benefits, particularly for future generations, but external pressures cause many individuals to sacrifice their interests, a careful comparison must be made to determine what is of greater importance and appropriate legislation must be established.

The Prioritisation of Collective versus Individual Interests

Individual benefits should only be sacrificed for the collective good when it is absolutely necessary. For example, we could consider the ban on alcohol in our country and the rising rates of addiction in a scientific evaluation. Science suggests that alcohol has fewer harmful effects than addiction, but religiously, alcohol is prohibited while addiction is considered permissible, creating a contradiction. Nonetheless, we maintain that all forms of intoxicants—whether mental or physical—are forbidden, and we advocate for both prevention and prohibition. However, in a society where prevention has not been adequately implemented and where many individuals have become ill, we raise these concerns.

Similarly, individuals who fall into a vegetative state and are kept alive at great expense by life support machines, yet show no meaningful improvement, impose significant financial burdens on their families and the healthcare system. We do not consider these individuals to possess “life” in the usual sense, and removing life support in such cases cannot be classified as “killing.” However, the ongoing expense for patients with no prospect of recovery continues to burden the system and society.

If the philosophy of law and jurisprudence were an advanced science in our country, each of these cases should be individually examined, weighing the pros and cons based on religious texts and reliable scientific research. Similarly, if the electricity department wishes to install power lines through private property, it must compensate for any damage caused, and compare whether the harm to the farmers—which might lead to famine—outweighs the public benefit of the power lines. In such cases, the greater good must take precedence.

Therefore, in situations where the interests of the individual and society conflict, one must determine the more significant priority and evaluate the lesser harm. It is not possible to establish a general rule that one always takes precedence over the other. Both society and the individual should strive for continual progress, and this sometimes involves imposing limitations on one in order to prevent greater harm to both. This is similar to medical procedures where, although the treatment may involve some painful or harmful elements, it is justified by the larger benefit to the patient or society.

In the realm of societal governance, beyond the exemplary leadership of Imam Khomeini, which was a unique and non-recurring instance of mobilising the masses, the administration of Islam’s ideals in practice requires both expert theorists and executors. This has proven difficult in the absence of such individuals, especially during the occultation of the Imam of the Age, where practical implementation of religious ideals has been hindered.

Islam, which originated in the tribal society of the Arabian Peninsula, is not merely for that era, but offers a comprehensive, timeless model for governing any society, whether ancient or modern. The law of Islam is not restricted to the social structure of its time; rather, it is universal and applicable to all societies across time and space. It is a living, dynamic system, adaptable to the needs of every era, providing guidance and structure to society in every age.

Chapter Three: Sources of Legal Science

Sources of Legal Knowledge

The sources of legal science consist of: law, custom, judicial precedent, and legal doctrine.

Previously, we discussed these topics and identified the most fundamental source of discovering law as “reason” (intellect). Here, we shall examine each of the claimed sources in turn, presenting only those points that require reconsideration.

Law

Law is a deductive and enacted process deriving from primary sources; thus, it cannot itself be considered a primary source of law. When discussing the sources of law, we must identify the original foundations. Law is a direct source of rights; this means that prior to rights, principles and premises combine to form legislation, which is then upheld as a right and a boundary of relations.

Law requires enactment, agreement, and ratification, involving human volition; therefore, laws have varied over different periods. The law that is enacted is the direct source of rights, setting legal boundaries, from which rights derive benefit and application.

However, the formation of law follows a process. Legislation is created with reference to primary sources — such as individual or collective reason, traditions, or customs.

Law is a contingent phenomenon, a result of the content and accepted premises within society. These premises may stem from the religion recognised by the society, traditions, cultural content, or the collective reason. Once this primary source is legally enacted and transformed into statutory law, no one can legitimately oppose it; rather, it must be complied with — unless one contests the law’s validity by influencing the legislative domain. Law is always a substantive principle, an inherent principle that must be accepted and is not open to question.

Law is limitless and, like numbers, without fixed boundaries or stasis. Using primary sources, laws can be created to the extent of capacity and according to the needs arising in societal development and growth, rendering them binding and legal. Accordingly, no ordinary individual can claim the authority to derive all laws within individual and social domains, nor can an organisation be established to predict laws needed until the end of time — unless, by temporal proximity and possessing a progressive or emerging subject insight, they seek to derive laws for the near future. The law of the future is a task for tomorrow and should be entrusted to the people of tomorrow.

In governing society, it is crucial to note that many affairs should not be advanced by legal tools and legal obligations alone, since law is the last resort. Prior to this, members of society and officials must be motivated through understanding, affection, devotion, love, and spiritual connection with a sense of responsibility.

The Process of Enacting Laws

Today, in response to emerging needs and necessities, a bill is submitted by parliamentary representatives or a draft is presented by the government to the Parliament. Specialist committees then review and endorse the draft, after which it is presented to the general assembly of Parliament. If the representatives agree, the bill is passed and finally becomes law upon the approval of the Guardian Council. This process, in formal terms, is unimpeachable, but its substantive content has shortcomings.

For instance, the Constitution itself has the inherent defect of having been hastily drafted amid the turbulent early days of the Islamic Revolution, under conditions of intense pressure from adversaries, as Imam Khomeini noted. It was written by individuals lacking experience in state management and legal expertise. Consequently, a constitutional amendment was foreseen, which itself failed to manifest professional competence and suffers from limitations.

Another legal deficiency is the recognition of expertise based solely on academic degrees, while many competent individuals lack formal certificates. Society must prioritise knowledge and expertise rather than mere credentials. This legal flaw must be addressed so that skilled individuals without formal degrees can advance based on their expertise.

A further major deficiency of the Constitution is the absence of a think tank or theoretical body at the stage before a bill or draft is submitted to Parliament. The Expediency Discernment Council — the Supreme Leader’s advisory body — lacks the content and capability to perform this function. Their approach often involves force-fitting decisions to reconcile conflicting interests rather than designing laws consistent with their nature, which would obviate the need for resorting to expediency. Expediency involves deviation from the essential nature of the ruling and is a secondary adjustment countering primary rulings.

The Iranian political system requires visionary thinkers who can identify the societal open and closed contexts and lead with foresight, anticipating social problems before they arise, rather than reacting to crises with expediency-based solutions that may depart from wisdom and foundational principles.

Our argument is that a lawmaker must first and foremost be a jurist — this is the primary law of legislation.

Expertise is crucial in legislation. We must adopt a maximally inclusive approach toward qualified specialists.

Among the criteria for specialists is practical experience. They should be familiar with laws of advanced and modern countries and diverse societies, not merely brandish degrees without practical engagement. The Parliament does not require doctors, engineers, or clerics per se, but individuals experienced in law. Subsequently, the people select the most competent experts from among them. This necessitates transparent and unrestricted information dissemination, permitting rival groups to compete fairly. Representatives should have only a handful of counterparts in Iran’s population of seventy million; otherwise, the presence of a representative with tens of millions of equivalents indicates insufficient capacity for comprehensive legal design and theory-making.

Besides legal knowledge, lawmakers must embody the second law of legislation: lawmakers must uphold justice to the highest degree commensurate with their office. They should be societal saints, endowed with a sacred virtue, not ordinary individuals susceptible to personal biases, threats, or bribes that could distort lawmaking. Hence, lawmakers must have clean records, especially free from financial corruption, and display good conduct.

One might argue that justice is subjective and difficult to verify, and appearances cannot be legally enforced. Moreover, biased supervisors might exclude the few truly virtuous and expert lawmakers.

However, in our legislative system, this issue does not arise because the saintly specialists possess a positive reputation within society and professional circles, their good conduct affirming their justice. Such individuals must maintain continuous engagement with the public, specialists, and academia for at least forty years. Their reputation for good conduct substantiates their justice. Good conduct differs from merely lacking a bad record, as it reflects practical life experience and commitment. These individuals are well-known in academic and specialist circles, not anonymous, especially in an age of advanced information systems capable of identifying tomorrow’s intellectual leaders today.

Although the current system has many flaws — barring many just specialists and dominated by partisan preferences — if legislation adopts a scientific approach and establishes universities and academic fields for this purpose, recognising just experts with exemplary conduct is not difficult, and their justice can be verified.

Another important issue is that the system must select lawmakers and require them to pass written examinations covering the constitutions and ordinary laws of at least fifty modern countries before candidacy. This selection is valid only if higher education provides specific universities and disciplines for this training, incorporating internships and practical experience, not just awarding degrees after legal texts and exams. Experience must be a fundamental part of the educational system.

The selection of lawmakers should resemble the medical licensing process, where no doctor is granted immediate permission to practice without training, internship, consultation, and examination. While a doctor is responsible for one life, a legislator, by enacting ill-conceived laws, can cause psychological, financial harm, disorder, and chaos throughout society.

What has been said here is more modern than the system of direct public law approval every Sunday in Swiss cantons and more systematic than law approval by committees requiring members to have at least forty years of legal and judicial experience and apprenticeship to prevent lawmakers from being mere opportunists, with Parliament serving only an advisory role — as in the UK system. Our proposed system, grounded in scientific principles, can cover all gaps because legislation is society’s most important function, and the resulting law is not easily refuted or rejected, and all are bound by it, recognising limits of interference.

Therefore, rather than eliminating the course “Legislative Methods” from law curricula, its content should be restructured.

Compatibility of Law with Islamic Principles

Article 4 of the Constitution states:

“All laws and regulations of the Islamic Republic of Iran must be based on Islamic criteria.”

The law also stipulates:

“The Parliament cannot enact any law contrary to Islamic criteria. The determination of this is the responsibility of the Guardian Council’s jurists.”

In some legal provisions, terms such as “principles” or “reliable jurisprudential sources” are used instead of “criteria.” The critical question here is whether the integration of Islamic law into national legislation must be affirmative, by enacting laws derived from jurisprudential sources, or merely prohibitive, ensuring that laws are not contrary to Islam without requiring full conformity.

The 1928 Civil Code, regarded as the foundational law, did not include the phrase “contrary to Islamic principles,” which was added after the Islamic Revolution; for example, the Islamic Penal Code derives from Imam Khomeini’s Tahrir al-Wasilah.

Currently, laws concerning religious minorities are minimal and insufficient to guarantee their rights as Iranian citizens and members of the nation. In our legal system, religious minorities, as ahl al-dhimma, possess citizenship rights. Each Iranian ethnic group has traditions that the governance system must respect and organise to protect the unity of Iran for all its people. All Iranians must be recognised as first-class citizens, without rulers and subjects. The system must focus on the humanity of this nation and not differentiate based on religion, belief, or ethnicity; akin to inheritance, where the property left by a father is divided equally among all children, even if some are offenders — except in cases of apostasy or murder — not just among those who are religious scholars.

During the tyrannical Pahlavi era, the second Shah stated regarding the Rastakhiz Party: “Opponents are fewer than the fingers on one hand. If these individuals do not want our country, they should leave it. No one can challenge my government.” The people endured deprivation, injustice, and poverty.

The goal is to move towards a just system in which all Iranians feel they belong to the land and can use their civil rights, regardless of religion or ethnicity, with the government fully upholding these rights. This is not impossible but requires comprehensive planning.

In conclusion, to develop the legal system, the Iranian Parliament must have expertise in law and justice and operate independently, adhering strictly to constitutional provisions and principles. Only then can Iran have a coherent, just, and effective legal system.

To followers of other religions, these intra-Shia differences, if each were to gain dominance over time, would lead to the negation of the Shia school and creed.

To address this deficiency, we must adopt a minimalist approach to the rulings. It suffices for legislation to not contradict the Shia school; there is no need for a maximalist approach requiring full conformity with Islamic rulings.

Naturally, disputed matters should be critically examined, and the outcomes of such deliberations made accessible to the public. Reference to Tahrir al-Wasilah is a reference to the opinion of a single Shia jurist. For instance, in the three-volume work Tahrir al-Tahrir we have undertaken a jurisprudential reassessment of this book, and in the nine-volume Balandā-ye Fiqh-e Shia we have similarly reviewed Masā’il-e Mostahdatha, authored by Grand Ayatollah Golpayegani.

In any case, the aforementioned problem—namely, the enforcement of rulings without categorisation—is the most fundamental flaw in the Constitution. This problem stems from the underlying intellectual framework upon which the Constitution was drafted. Furthermore, the Constitution is based on the separation of the three branches of government, whereas there is also a need to introduce another branch, namely a “theoretical or intellectual authority,” which would serve as the government’s think tank and intellectual brain. The most significant critique of the Constitution is: “We intended what did not happen, and what happened was not intended.”

Although the principles enshrined in the Constitution are not the universally agreed creed of all Shia scholars and jurists and thus do not represent the entire Imami Shia school and culture, they do carry the distinction of incorporating the thought of one of the greatest Shia jurists. The Constitution has been drafted solely on the maximalist interpretation of Shia Islam and has not fully considered the diversity within society to represent all groups—regardless of their differing thoughts, ethnicities, and religions. It solely reflects a Shia system based on the thinking of a single jurist.

This foundation is intellectually, legally, and socially acceptable. From a religious jurisprudential perspective, a minimalist approach is required, meaning that legislation should not contradict Islam. Otherwise, a maximalist view that rejects the relativity of Islamic governance leads to the negation of Islam itself, as explained previously. There is consensus that every religious obligation or duty is contingent upon awareness and capability. We neither possess the knowledge nor the executive power to enforce maximalist Shia rulings fully. The diversity among Shia jurists complicates understanding the Shia creed to the extent that Shia Islam still lacks a codified and widely recognised manifesto. Therefore, the ruling jurist’s opinion cannot be equated with the Shia school but is only the view of an individual Shia jurist.

Islamic rulings must be categorised, and those capable of implementation should be codified into law and promulgated. It is inappropriate to neglect enforceable rulings simply because some are impractical to implement; such a policy leads to neglect of the obligations themselves. Priority should be given to rulings that foster peaceful coexistence and religious convergence. Once acceptance is secured, rulings of the second order may gradually be implemented, facilitating cultural reconstruction and propagation of the Shia school. This will ultimately guarantee the flourishing of Islam and Shia thought.

Thus, this approach is religiously legitimate and not contradictory to Islamic rulings. As the Holy Qur’an states:
“And We have sent you only as a bringer of good tidings and a warner.” (Al-Baqarah 2:119)
Prophets are tasked only with conveying the divine message, not governance:
“And the Messenger is not but a clear warner.” (Al-Ahzab 33:45)

Societies comprise diverse individuals, and the modern world is one of citizenship. These factors marginalise authoritarian ideologies. It is erroneous to claim that the early Islamic community, particularly the governance of Madinah under the Prophet, was authoritarian. That nascent government primarily faced defensive wars rather than initiating hostilities. When initial wars occurred, they were to suppress armed and revolutionary movements that posed imminent and explosive threats, serving more as preventive measures than endorsements of power or force. Moreover, that society was tribal, and tribal governance often relies on authority. However, today authority must manifest through civil governance, reflecting a popular, citizen-based, and social system. Past rulers’ symbols of power were swords, armour, and helmets; today, colonial regimes attempt to portray leaders as polished, charismatic figures to captivate the populace. Now, power is primarily demonstrated through rhetoric and discourse.

The structural and substantive defects of the Constitution present a significant challenge: the lack of specialised intellectuals and theorists capable of drafting legislation. Specialists must possess profound knowledge of Islamic rulings—not merely general scholars, akin to general practitioners, but experts with mastery in deriving rulings and possessing a sanctified faculty. Employing general scholars for such a critical undertaking risks the demise of the law or social unrest and widespread dissatisfaction, as any misstep endangers the very fabric of society.

Currently, Muslims in Afghanistan, Iraq, Egypt, Libya, Tunisia, Yemen, Syria, Bahrain, and Saudi Arabia are embroiled in conflict. Syrian Alawites clash with Sunnis; Sunni Bahrainis attack and kill Shiites. This turmoil stems from a lack of thinkers and theorists familiar with Islam who can foster convergence and peaceful coexistence. Any defect lies with the unawareness of Muslims, not Islam itself:
“Islam in itself has no fault; every fault is from our own Muslims.”

Although scholars and jurists were historically saints and ascetics, the power of colonial and tyrannical regimes forced them into seclusion, impeding their scientific growth. They isolated themselves, thought individually, and lacked a social perspective. Consequently, Islam lacked social thinkers capable of diagnosing societal ailments and remedies. Scholars were neither free nor socially engaged, compelled instead to conceal their true views.

The shortage of specialists is the greatest challenge confronting our society today. Shia Islam is renowned for ijtihad (independent reasoning), as Imam al-Sadiq instructed Aban ibn Taghlib: “Sit in the mosque of Medina and issue fatwas”—meaning to exercise personal reasoning rather than merely transmitting traditions.

Ijtihad represents individual juristic opinion. Shia Islam harbours the potential for ijtihad and specialised expertise but must harness this to address social problems through scholarly struggle; otherwise, unresolved issues will consign the school to stagnation.

Selected specialists and experts assigned to theory development and lawmaking should be relieved of other duties, barred from executive roles, and focused solely on thinking, knowledge production, and theory based on understanding Islam, sociology, and the psychology of the people for whom they legislate.

Experts must be chosen from prodigies possessing high intuition who can derive solutions rapidly without compiling all data step-by-step. These prodigies are selected by special criteria and examinations, not merely academic qualifications or grades, as these reflect memorisation rather than scientific mastery. A genius is a spontaneous source of innovation and creativity and does not rely solely on memorised knowledge for theorising.

Our emphasis on nurturing such experts does not imply abandoning Islamic rulings or legislating from sources outside Sharia. Experts must centre their theorising on pure Islam and jurisprudence. They must adopt a comprehensive approach, categorising laws according to societal capacity for implementation, prioritising universally accepted rulings so that diverse ethnic and religious groups feel that Shia Islam benefits them and commands popular support, leading them to view Shia governance as preferable even to self-rule.

Experts must make policies of peaceful coexistence tangible for the people. Laws causing anxiety, stress, or threatening psychological security should be deprioritised. Society’s architects must regard all Iranians as equal citizens, respect diverse cultures, ethnicities, and regions, and adapt educational and media standards regionally.

Subsequently, enacted laws and constitutional articles should be prioritised according to their implementation feasibility. Laws must be implemented considering the sociology and psychology of local populations to foster convergence and assure people that legislation serves their interests.

On Custom (Urf):
Custom is the practical consensus of people, rooted in their innate nature. The foundational principle among scholars is that prior to practical consensus, custom carries a presumption of practical rationality. Custom, reason, and revelation form a shared source for deriving rulings and rights. Custom, like self-evident propositions, has internal logic but legal scholars assign a specialised meaning to it, which is not without errors. Custom, as legally defined, cannot be a definitive source for establishing rulings and rights unless corroborated by reason and revelation. Purified custom comes after reason and revelation in authority and should not be invoked if contrary evidence exists.

Custom, in all sciences including jurisprudence, principles, sociology, psychology, history, and ethics, has a singular meaning. However, legal scholars define custom as conventions among rational agents that are non-natural and binding.

The scope of custom is limited in jurisprudence but expansive in law, where it is treated as binding like written law. Judges may rule based on custom if it meets three conditions: it must be stable and respected over time; widespread across the nation, not just a region; and have binding force (e.g., it is improper to appear in public underwear). These conditions, however, are mistaken when applied to conventional understandings of custom, which are more natural.

Legal scholars consider custom an inspiration for legislation. Historically, many laws, especially before codified statutes, were derived from custom. International law today heavily relies on custom.

There is no real difference between custom and the rational consensus of the people. In jurisprudence, custom is consulted when reason and revelation do not suffice. The reference to custom is a reference to the collective practical reason of society, distinct from individual theoretical reason.

Reason is not an independent source but subordinate to revelation. Custom ranks lowest among the three and cannot override reason and revelation. Custom is valid only if it is compatible with reason and revelation.

In conclusion, a minimalist and categorised approach to legislation rooted in jurisprudence, supported by expert intellectuals and respecting societal diversity and custom, is essential to foster unity, peace, and progress within Shia communities and beyond.

It is almost self-evident.

Custom, the validity of denying or affirming continuously, as well as the authority of solitary reports, are all based on the principle of bana-ye ‘uqlā (the rational presumption). When someone utters a statement, the fundamental assumption is that they intend meaning and truthfulness. Similarly, the rational presumption dictates that humans ought to maintain decorum in society and that any form of indiscretion—such as wearing undergarments in public—is reprehensible. Such matters fall under the general rational presumption of decorum. The rational presumption sometimes assumes a general category which manifests in specific instances and contexts. Linguistic communication is also based on this rational presumption and common convention, whereby when a person speaks, they intend their words and the apparent meaning is what they mean; the default assumption is that the speaker is truthful.

Newly Established Rights / Volume One

However, as previously noted, the rational presumption is authoritative only insofar as there is no prior proof from revelation or intellect; although it cannot be negated by reason or revelation since customary practice invariably involves matters naturally established and practically fixed. Therefore, it is a supplementary condition that custom or rational presumption be considered from the viewpoint of Sharia, for custom is something inherent in human nature and cannot be alien to the Sharia perspective. Moreover, Sharia never intervenes in matters universally understood by reason. Sharia’s intervention applies to matters such as prohibiting usury within customs and traditions, rather than in natural custom.

The principle of ownership and the principle of possession—both legal maxims from which rights are inferred—are entirely grounded in the rational presumption and the practical mutual understanding of custom; their scope is limited to practical affairs, not theoretical issues supported by revelation or logical proof.

The collective practical intellect—which underpins custom—is the ordinary reasoning of notable leaders, supplemented by the general public’s reasoning, rather than educated scholars. The foundation is a complete, popular, and ordinary consensus. Neither the intellect of leaders nor that of the masses holds independent weight; rather, it is subsumed within custom. This contrasts with intellectual rulings, which consider the reason of distinguished intellects and are not subsumed in custom.

Recourse to custom applies to matters where Sharia has not intervened and where no religious prohibition exists; a religious prohibition indicates the subject belongs to customs, traditions, or usages rather than natural custom. Likewise, reference to custom occurs where there is no basis for rational proof, since the reason invoked is practical, not theoretical. Theoretical reason cannot have a mutual understanding among intellects; hence, there is no conflict between custom and reason because they arise from distinct grounds. The requirement for custom to be continuous and general is to strike a balance between reason and revelation, reflecting the nature of ordinary people with well-known, moderate, and usual practices among them, free from divergent interpretations. Custom, therefore, refers to the rational, natural, ordinary, and general nature of common people, excluding distinguished intellects.

Previously, legal scholars differentiated custom from the rational presumption, defining it thus:

“A rule that gradually and spontaneously becomes customary and binding among all or a specific group of people.”

One scholar emphasises that, in this definition, written status or practical application of the customary rule plays no role, and any rule derived from social phenomena and evolving independently of legislator intervention is termed “custom.” The material element of custom is complete only if it is universal, stable, and manifest—that is, observed so widely that, except in rare exceptions, it is respected by all.

This definition confuses the specific legal notion of custom with natural custom and mutual understanding, conflating custom with tradition, habit, and many other categories, requiring careful and patient analysis.

Custom, in the sense of “worthy,” is a practical reality arising from human nature and originally fixed by practice. Nature is a convention established through action. The rational presumption is a theory whose judgment is confirmed and fixed in practice. Both custom and rational presumption share the same institution and collective intellect; however, custom is enacted and continuously confirmed through practice, whereas rational presumption issues judgment prior to practical confirmation. Both are fixed by elites and leaders and passed to ordinary people, akin to the concept of customary practice. Custom and rational presumption are not distinct institutions; their relationship resembles that of narration and legislation, which are aspects of a single institution.

Legal scholars refer to custom as binding, but this applies only to legal custom, not natural custom. Custom is a natural institution and cannot be binding or penal (in a legislative sense). Its continuity depends on human nature; changes in circumstances may transform it. For example, people customarily bear certain wedding expenses, but poverty does not compel someone to incur those costs. The obligation arising from custom is no more than a habitual following rather than a strict binding duty. Similarly, the rational presumption may be revoked with the slightest doubt, for example, the authority of solitary reports may be questioned upon any suspicion, requiring investigation instead. Hence, if falsehood spreads in society, trust in reports cannot be maintained.

Legal custom is binding and enforceable; natural custom neither is binding nor subject to legal sanction, but merely subject to praise or blame. For instance, a person who requests something without greeting contravenes natural custom; one may refuse to respond but cannot legally complain about the person’s lack of permission to enter. Violations of natural custom have no legal penalty in jurisprudence.

To clarify the distinction between custom and rational presumption: custom is a practical and tangible structure arising from human nature, while rational presumption is a practical and tangible structure of what is reasonable and has the status of practical reason. Both share natural and exceptional non-binding status and a single source, where ‘intellects’ refers to community leaders, regardless of their education.

Custom differs from habit because it must be a well-known and approved natural norm; habit may be undesirable and unhealthy. Habit forms mainly through repetition and is individual, whereas custom has no personal agent or specific subject and is a generic collective concept. Habit may not diffuse from leaders to ordinary people and can originate from lower social strata; its agent is considered, unlike custom which is not encompassed by intellects. Habit spreads without necessarily following a specific path, unlike custom which follows reasoned acceptance.

Habit can damage custom by spreading undesirable practices that contradict custom.

Custom and habit differ from manners and traditions as well; manners relate to a people’s ethical nature, rooted in individual disposition, while custom arises from collective nature. Manners are individual, custom is collective and general. Custom has no singular agent and cannot be attributed to individuals, unlike manners and habits which have clear agents. Traditions can be good or bad and lack rule-based transmission; they have identifiable agents, often collective. These categories overlap but detailed analysis is not necessary here.

This shows the cited scholar’s definition of custom is riddled with fundamental confusions, mixing common practices with custom, legal obligation with natural habitual following, and habit with custom. For example, there is no legal recourse for a child’s rudeness to a parent, though socially condemned.

That scholar also states:

“Some have interpreted custom as temporal imitation, and prevalence or habit as spatial imitation, to signify the historical rooting of custom.”

Yet habit is not synonymous with prevalence, habit may be personal and not widespread like manners, which can be temporal; custom may occur regionally or historically. This temporal-spatial distinction does not concern substantive differences in terms, and is based on preference rather than linguistic accuracy. Legal science adopts terms rather than creates them, as it is an abstract discipline rooted in external phenomena and relationships.

Article 3 of the Civil Procedure Code states:

“Courts must issue judgments based on codified laws, and in their absence, on custom and proven habit.”

Custom here means popular acceptance, while the qualifier “proven” describes habit, not custom; habit may be good or bad, but custom only covers approved matters. The scholar’s conflation of “proven” applying to both custom and habit is mistaken. A habit is proven if approved; otherwise it is neither accepted nor durable. Habit-based obligations are natural.

Custom cannot be considered an independent source in legal science; as long as scripture and reason apply, custom and rational presumption are not resorted to, which only occurs in their absence. In international law, Article 38 of the International Court’s statute identifies custom as a principal source:

“International custom is the general or widespread practice of states accepted as law.”

Example: the right of free navigation in international waters.

We stated custom has no legal obligation and cannot legally bind, whereas legal systems treat custom as a valid source from which enforceable rules derive, and courts reference it.

The right of passage in international waterways exists because no state claims ownership and cannot produce title deeds; thus, the right is based on mutual ownership, not on custom which only reflects general human nature and practice. Mutual ownership is neither provable by reason nor documents, and is not grounded in custom; it should be regarded as “legal custom,” not natural custom. Legal custom comprises general laws without independent documentation, accepted without opposition; those opposing it cannot produce contrary proof.

Some define custom as:

“Repeated similar actions by states and international organizations gradually acquiring a binding character with legal force equal to written law.”

This defines custom in legal terms as unwritten law without opposition, legally binding, a specific notion that differs from the mutual understanding custom, which may arise among limited groups without requiring continuity or repetition, and is immediately binding. Mutual understanding custom resembles the right of sanctity or boundary, inherently protecting something from inception based on scientific consensus without written law, but marked by the label ‘custom’ for identification. Such customs have clear agents, unlike natural custom which has none.

In summary, legal science should not use the term “custom” indiscriminately to include mutual agreements or unwritten rules lacking natural customary origins, nor conflate these with habits, traditions, or manners. Natural custom represents permanent human nature and general practice, while legal custom is a derivative concept based on agreement and acceptance within legal frameworks.

Since custom (‘urf) is a well-known human phenomenon, it holds a form of sanctity; on this basis, Islamic law has cited numerous examples of it. However, given that these examples have been extensively mentioned in the Qur’an and Sunnah, custom has not been established as an independent source for deducing legal rulings. A review of the many Qur’anic verses referencing custom shows that the value of custom in its infallibility and application to specific cases even surpasses rational proof—which is often difficult to attain—because custom is akin to propositions whose evidence lies within themselves, and referring to the collective practical intellect is a natural approach in concrete matters.

Given the detailed and precise explanation of custom above—which is fitting for this book—the criticisms and objections raised in the Encyclopaedia of Shi’ism regarding the definition of custom become clearer. It is stated there:

“In the principles of jurisprudence, custom (‘urf) is a term applied to the habits of most people in a particular region concerning speech or action. In the definition by jurists, two elements are present:

First, a type of habit, which entails repeated behaviour without a necessary logical connection;

Second, the habit of the majority. In effect, this qualification does not distinguish custom from habit, as it excludes only individual or small-group habits, those with fewer than half the population adhering to them.”

Thirdly, custom does not include natural habits and relates only to speech or conduct.”

This definition conflates custom with habit, and limiting habit to the majority does not create a real distinction between custom and habit.

Moreover, the jurists’ statement that “custom among the faithful is not authoritative except where no contradiction or opposition exists” is correct. This is because the faithful are not infallible, and the intended meaning of ‘custom among the faithful’ is not the specialised concept of custom described here, but rather a general term encompassing the habits, customs, traditions, and rituals of the faithful. Within such religious custom, many embellishments exist that have become habits, rituals, or traditions and should not be confused with natural custom, which possesses intrinsic authority.

Inner Morality Cannot Be Trained: A Distinction Between Morality and Law

Inner morality is not subject to training; hence, it cannot be transformed. Rather, it constitutes an innate disposition, temperament, or intrinsic trait, although in practice it is influenced by human will and choice. Law, akin to transactions, is shaped entirely by imperatives and obligatory matters; morality, however, is akin to charity and altruism, whereby its possessor may or may not manifest it in action, and there exists no fixed rule compelling such manifestation.

Nevertheless, the conflation of these two disciplines by past scholars is an unforgivable error. Boundaries between sciences must always be respected. For instance, legal science should not discuss peace as a right, since peace is not a right but a moral virtue, and one may dedicate their entire life to peaceful reconciliation. Peace is a moral matter, and morality ascribes value to it, whereas law regards it as an unknown and unregulated domain. The subjects of law and morality differ fundamentally. Morality encompasses various inclinations and motivations, whereas law concerns binding obligations enforceable by sanctions.

Law and morality share a historically intertwined past, and it is incumbent upon us to endeavour to distinguish law from morality so that each individual may benefit from either law or morality in their proper domain. Such distinction would close the door to fallacies that confuse obligatory matters with those of sentiment.

Law involves coercion and pertains to others, constituting an external, objective science; morality, on the other hand, is an internal, subjective, and personal science devoid of coercion. Law always adds to something external; it cannot function without being relational, always existing between two entities to establish differentiation. Morality is individual and describes a quality attributed to the person. Morality is natural and intrinsic; one nature is self-restraint, and another is generosity.

Differences in Sources, Foundations, and Principles

Some have differentiated morality and law based on their distinct sources. They attribute the sources of morality to reason, conscience, religion, and social customs, whereas the sources of law are law itself, custom, judicial precedent, and legal doctrine. Indeed, morality and law share custom if understood as social conventions. The principal source of morality is reason, and the principal source of law is the consensus of rational agents, which is not independent of individual reason and is embodied in legislation.

Another distinction lies in their foundations. Most moral foundations rest on individual conscience, and morals are emotional matters, whereas law contains no place for sentiment or conscience.

The above reflects the prevailing view among moralists, cited by a legal scholar who, contrary to our perspective, denies a fundamental difference between moral science and legal science, accepting the aforementioned differences. He states:

“Some have considered the sole difference between these two as the enforceability of law and the absence thereof in morality, which is incorrect; their differences pertain to the following: first, the foundation and source. The foundation and source of morality are taken to be one of four: religion, reason, conscience, and customs or social conscience.

Undoubtedly, many moral teachings originate from divine revelation and absolute goodness. It can also be said that morality is a set of rules reason deems good and just because reason, by its nature, can grasp the rules necessary for life. Furthermore, human feelings and emotions also serve as bases for good and bad behaviour. From a sociological perspective, morality is the science of social habits and customs, with moral rules deriving from social conscience.

Conversely, the sources of law are: first, legislation; second, custom; third, judicial precedent; fourth, doctrine; and fifth, equity.

Legislation is the will of the legislator; judicial precedent is the practical aspect of law, and doctrine its theoretical aspect, both products of the legislator’s will. Custom primarily refers to judicial or legal custom. Therefore, the will of the ruler and legislator — whether God, monarch, nation, or state — is the will governing others. Ultimately, only custom in law and social customs in morality bear similarity; the rest differ.”

We do not concur with these differences, considering these statements simplistic and lacking philosophical depth. To properly examine how to distinguish law from morality, two points must be noted: first, the difference between sources and foundations in terms of hierarchy and temporal sequence. Sources are raw materials and references, while foundations are the resultant synthesis whose arrangement produces differing foundations. Foundations involve an active agent and depend on how sources are interpreted and combined. Thus, from common sources, differing foundations can arise because foundations relate to method, and it is impossible for different sources to produce identical foundations.

After sources, which are primary and do not involve active agency, and foundations, which involve the agent, come the principles (mabadi), which are the passive attributes related to rules and serve as tools for rule derivation; foundations act as premises for legal rulings, termed as principles of judgment.

This distinction between active and passive considerations differentiates foundations from principles; something initially a source may become a foundation in systematic rule extraction and a principle in application. The use of “source” in this broader sense encompasses sources, foundations, and principles, but strictly speaking, they differ.

Following foundations come structures (bana), referring to how foundations and principles are combined. Since sources are the primary reference for deriving rules, shared sources may exist between the two sciences, but differing foundations result in their divergence. Hence, the difference between moral and legal sciences cannot be attributed to differing sources, because the principal and central source of both is reason; other claimed sources ultimately derive from it.

The second point pertains to psychology and epistemology: the primary source of cognition is reason, which also judges the credibility of miracles. Reason requires premises and assumptions, ultimately resting on self-evident truths—axioms that reason cannot deny. Although law and morality may draw on various sources, all but reason are not independent and involve reason’s intervention. However, reason cannot command simply; it relies on assumptions introduced as major and minor premises.

The author in question categorises sources as apparent and real:

“Law and custom are apparent sources; the real sources of law are morality’s sources — reason, social will, and conscience.”

This division is imprecise and overly broad, as noted earlier.

The subject of law is obligation; equity cannot be considered its source or principle since law is grounded in justice, without requiring equity to be considered. Other sources and principles should be regarded as rational forces serving law, distinct from reason itself.

Further criticism of this text includes treating law, an artificial construct, on equal footing with reason and conscience as an independent source or foundation. Law results from reason and rational agents’ efforts and feeds off these sources. It is a mediated, consumable entity, not a primary source or foundation, thus confusing tools with foundations.

Moreover, the text misconceives the notion of the “ruler.” In law, the ruler is the accepted foundation, because the one who applies rules to laws is merely an executor without injecting personal opinion, allowing them to be termed a ruler.

Maintaining the Boundaries Between Morality and Law

Some legal scholars have endeavoured to blur the boundaries between law and morality, seeking to integrate morality’s foundations into law, aiming for ethical rules to become binding. They argue this would yield a more advanced, modern law, expanding current minimal law into maximal law.

This scholar considers law and legislation as last resorts for desperate individuals, meaning that moral deterrents should prevent recourse to law whenever possible. For example, family matters should be governed by morality, not law. Family and law should interact lovingly, not based on legalistic lines and duty.

Opponents argue that introducing morality into law imposes obligation and duty on morality itself, converting it into compulsory law. Thus, families would be governed by mandatory moral laws, not by morality itself, resulting in a legalistic rather than moral life.

We assert that, although a loving, moral life is sweeter and warmer than one based on legal obligation, with family members cooperating in love, patience, and sacrifice, legal life is structured on predefined duties and legal lines. Love-based life is superior to law-based life. We elaborate this in our book Life: Love or Law. There, we state that loving life brings pleasure and peace, yet this does not justify erasing the boundaries between law and morality or merging morality into law. The boundaries of each discipline must be preserved. Morality should be culturally embedded as superior to law, and recourse to law should be a last resort after morality fails—not the other way around. Morality suits altruistic individuals; law suits criminals and offenders. Society attains balance through promoting morality and, more so, mysticism and love, as altruists repair the harm caused by offenders. Boundaries must be maintained, yet societal encouragement should discourage reliance on law by designing cultural, intellectual, and practical deterrents, so life is governed by love, kindness, sacrifice, tolerance, understanding, ethics, and magnanimity, not legal obligations. Moral and compassionate life precedes legal life. People should be recommended dignity and honor, reserving law only for inevitable cases where moral options fail. The superiority of moral life over legal life does not imply turning law into morality or vice versa.

Law and Sociology

Sociology’s involvement in law stems from societal structural changes from primitive to civilised modern forms, resulting in varying legal systems. Studying diverse social structures—from rural to urban—leads to the formulation of different laws. Thus, law must be aligned with the society it governs. However, sociology, being descriptive, contrasts with law, which is prescriptive, normative, and obligatory. Despite this, law cannot be detached from society and must derive from sociology.

Law—be it individual, social, or international—is obligatory, resorted to when peaceful, harmonious coexistence, cooperation, and understanding fail, bearing both normative and practical enforcement. International law, however, lacks enforcement mechanisms and must compensate practically.

Sociology aids legislators and legal experts by analysing society and highlighting the necessity of legal reforms or new laws.

The writer indicates that considering law as a part of sociology results in both being equal sciences, with law’s rules derived from sociology, making law descriptive rather than normative. This view is refuted as erroneous.

Law and morality are normative sciences guiding behaviour; sociology is a descriptive science examining social facts without prescribing behaviour, merely describing and explaining.

Equality, Class, and Difference in the Concept of Justice

When discussing the instances of justice, three important points must be considered:

Firstly, justice does not mean equality or uniformity. Rather, justice emphasises that all individuals differ from one another. Justice is about maintaining the proper measure of each thing, not about giving everyone the same share. Although at times justice may take the form of equality in some cases, it is not necessarily synonymous with equality. For example, justice in the context of taking a life is understood as the retribution of a life for a life. The life of the murderer is to be taken regardless of whether they were a scholar, a political figure, an ordinary person, or even one who has caused great harm. The fundamental essence of the soul is the criterion for establishing justice and fulfilling rights, not the attributes of the person.

Secondly, ordinary humans and the material world lack the capacity to fully calculate and implement these differences. This limitation—that the physical realm cannot perfectly realise justice or address all injustices—is the strongest evidence for the existence of the hereafter. The perfection of the divine order is realised through the hereafter, underpinned by God’s knowledge, power, wisdom, and justice, rather than by relying solely on the worldly life. Without reference to the hereafter, not only would creation fail to be the best possible system, but it would appear profoundly unjust.

Those who advocate for complete justice solely in this world harbour naive thinking, since the world is limited and incapable of achieving absolute, perfect justice. Thus, in the implementation of justice, minimal standards should be the goal and these should be realised in practice. Distribution based on per capita equality pertains to the worldly life, whereas distinctions due to virtue and attributes will be addressed in the realm of the hereafter.

In defining justice, we described it as placing each thing in its rightful place and maintaining proportionality. To determine what place or position each thing holds, one must identify the appropriate criterion. This is a matter requiring research. Certainly, divinely guided leaders, endowed with wisdom and authority, know the rightful place of things through their God-given insight and base their decisions on justice, wisdom, and often mercy—though mercy which never contradicts justice and wisdom. Ordinary humans understand many positions but fall short in discerning many matters, not due to incapacity but due to incomplete knowledge. Therefore, discovering the criterion and standard for many matters remains incomplete.

The concept of justice is clear and unambiguous; however, since the criterion for each thing has not been fully researched, humans remain confused and uncertain about the actual instances of justice. This confusion stems from a lack of knowledge about the standards, not from the meaning of justice itself. For example, it is unclear to many whether the distribution of public funds should be equal among all citizens—as practiced by Imam Ali (peace be upon him)—or whether the capable and elite should receive more—as was done by Caliph Umar—or whether they should be deprived altogether, as some modern thinkers suggest. The actions of the infallible Imams (peace be upon them) serve as definitive evidence, and any opposing views without substantiated criteria amount to juristic reasoning against divine text.

Identifying the criterion for recognising the instances of justice is fundamental and requires careful attention. For instance, the rule that all vehicles must adhere to the same speed limit disregards the capacities of different cars; the criterion here is the vehicle as a unit, not its individual capability. Discrepancies in the application of justice can be resolved by accurately determining such criteria.

It should be noted that simply identifying a criterion does not necessarily warrant legal ruling. Beyond this, explicit evidence must permit or at least not contradict adherence to this criterion. Sometimes a criterion for a ruling is discovered, but authoritative religious texts preclude its implementation to avoid hardship or harm. In such cases, insisting on applying the criterion is misguided, much like the proverb “Khānqoli gives but Qoli does not.”

Therefore, disagreements about instances of justice stem from insufficient discovery or disregard of criteria and evidence, not from ambiguity in the concept of justice. For example, the difference in compensation (diyah) between a slave and a free person, or between a woman and a man, is related to such criteria. Discussions on these topics require separate treatment. It should be noted that the initial acceptance of slavery, similar to the gradual prohibition of alcohol, was a political measure to accommodate the context of revelation and the attitudes of those in power, later followed by legislation designed to eradicate slavery.

In summary, justice is often realised through differentiation, not equality. The disputes surrounding justice arise from incomplete understanding of the criteria or failure to consider evidence, not from the concept of justice itself. Some argue for a classless system as just, others for a system recognising difference, and yet others for an egalitarian system. Justice in society is like the distribution of nutrients to different parts of the body, where varying amounts are delivered to different organs. Justice lies in proportional distribution, not in equal shares.

The third point to consider is the distinction between “rank” and “class.” A class system is exploitative, while a system without differences is unjust. The difference between class and rank is that rank stems from proportional differences, while class arises from neglecting these proportions and criteria.

Some differences originate from natural and ontological structures, such as those between men and women; these affect rights due to biological distinctions rather than humanity. Other differences arise from temporal structures, such as between slaves and free individuals; Islam initially accepted slavery but then legislated to abolish it.

A Minimalist Approach to Justice

As stated, in the material world, complete justice cannot be realised due to its inherent limitations. Justice is perfected with the hereafter. In the worldly life, justice must be implemented minimally, not as an idealistic or maximalist slogan, because maximalist demands ultimately negate justice. It suffices that people receive their rights, even if minimal and not perfect, without neglect. Utopian ideals are impossible to realise. Today, the wealthy and powerful often claim maximalist justice for themselves while denying even minimal justice to the weak.

In this world, peaceful coexistence should be the goal, not unrealistic expectations. Neither the material world nor any leader during the occultation period of the infallible Imams has the capacity to establish full justice. The slogan of “comprehensive justice” often leads to massive injustice. If resources were distributed equally per capita, most ordinary people would avoid poverty and maintain a modest life. If the powerful can be prevented from abusing resources, society would greatly advance, as the so-called respectable thieves would no longer squander public wealth.

Those who speak of justice beyond minimal standards ignore the societal challenges of implementation. Justice differs for individuals and for religious scholars. A religious scholar’s justice entails self-restraint from worldly desires, while ordinary people are tasked simply with professing faith, as Islam prescribes.

Scholarly discourse on justice often comes from those who might themselves exploit others, using eloquence to mask selfishness. True justice requires knowledge akin to infallibility, which ordinary humans lack. Hence, ordinary people should seek justice broadly but settle for minimal achievements, as maximalist demands may prevent them from attaining even minimal justice and can lead to chaos and waste.

It is sufficient that an individual, even if worldly, does not stand against the hereafter. Very few can overcome their desires and avoid tyranny. Idealistic and emotional views of justice are merely poetic sentiments. The minimalist approach to justice is accepted by all groups, while maximalist demands breed hypocrisy. Societies progress in justice only by abandoning utopian ideals and considering the realities of the era of occultation and the non-infallibility of its leaders, just as Islam demands minimal justice from its followers.

Some religious rulings are legislated with reference to customary standards rather than logical ones, necessitating leniency even when one can assess the criterion precisely. Justice in such cases follows customary assessments, and the Shariah demands minimal, not maximal, justice. Thus, juristic reasoning cannot contradict explicit texts, for “Islam is exalted and nothing is exalted above it.” A maximalist view imposes hardship, contrary to the ease Islam prescribes.

Even intellect recognises the futility of aiming too high, as the proverb “he who aims at a big stone will miss” suggests—unless driven by passion and loss of reason.

Justice and Fairness (Insaf)

Western thinkers often equate justice with entitlement and merit. One American equates justice with fairness (insaf), stating:

“Justice has both a social and an individual dimension. Individual justice is what a person desires and considers fair. Social justice is the foremost virtue of all social institutions. An institution is just if it acts fairly; for example, to catch a criminal, innocent individuals should not be harmed. It is better for a criminal to go free than for many innocents to suffer.”

This view dilutes the sharpness of justice by equating it with fairness. According to this perspective, justice is about acting fairly, while fairness is a higher level involving goodwill and kindness, making it gentler than justice.

He divides justice into individual and social forms. Individual justice, he says, aligns with personal desires. However, according to our philosophical understanding, justice is an ontological attribute of reality, not dependent on individual whims. Addictive behaviours or immoral acts may please individuals but are certainly unjust. Moreover, individual harm translates to social harm; justice cannot be separated between individual and society in such cases.

Our position is that justice is an ontological reality existing independently and is not subjective. Justice is fulfilling rights, and the closer something aligns with its true nature, the more just it is. However, the measure of truth is not the individual but the appropriate criterion. Justice is a philosophical and external attribute, unaffected by personal desire.

There is a difference between justice and fairness: justice is a general attribute, whereas fairness is a specific one. Justice considers the standard generally, with the judge impartial; fairness involves one party judging another, aiming to treat others as they would wish to be treated.

Justice is a transcendent universal value, whereas fairness belongs to ethics and manners. Some countries employ a jury system in their judiciary to incorporate emotions into the verdict, preventing judgment from being solely based on rigid and impersonal laws, thus infusing a spirit of benevolence into justice. Such fairness should not be regarded as a subtler layer of justice; similarly, emotions and compassion should not hinder expert and specialised pursuit of truth. It must be noted that damages caused by a benevolent and kind individual are also subject to justice and are not held against them, for goodness should not be punished by evil.

The procedural law also contains an article concerning arbitration which states: “The ruling of the arbitrator and judge must follow the principles of fairness.” Here, fairness is equated with benevolence. It is worth noting that this provision suffers from a lack of literary and scientific precision, as legal leniency and clemency are mistakenly understood as fairness and benevolence. This misunderstanding is also present in the English judicial system, which has courts of equity operating alongside legal courts. For example, public opinion and popular sentiment may prevent a landlord from evicting a tenant unable to pay rent to avoid homelessness. Such a ruling arises from pity and emotion rather than fairness, as it disregards the landlord’s rights.

Another principle of fairness is the allowance of instalment payments to a debtor unable to pay their debt in full, which courts here have empowered judges to order, even without the consent of both parties. Article 288 of the Iranian Civil Code enshrines this principle.

In some jurisdictions, appellate courts and supreme courts function similarly to juries, providing a check on the fairness of judgments.

A criminal must be prosecuted in a manner that does not harm the innocent; however, the principle of presumption of innocence holds that it is preferable for a guilty person to escape than for an innocent person to suffer. Disregarding this principle results in hardship and distress. Individuals are often meticulous when judging themselves, seeking to protect their interests—for instance, accusing and investigating anyone suspected of misplacing property. In contrast, people tend to be negligent when judging others. Likewise, governments, if suspicious of a person, may subject them to various tortures to extract information, which reflects the selfishness of individuals or rulers. This issue is widely acknowledged and is not unique to any one nationality.

It is said that adherence to fairness in cases where justice does not favour the disadvantaged stems from Aristotle’s teachings. This American approach to justice embraces it only insofar as it aligns with fairness. Fairness promotes the best empathy and gentlest friendship and affection necessary for social harmony, reducing reliance on coercive forces. In Anglo-Saxon law, with roots extending over three centuries and derived from Germanic tribal laws forming the English nation, courts of equity exist alongside common law courts.

To fundamentally elucidate the difference between “justice” and “fairness,” we turn to etymology.

Fairness derives from the root meaning “half,” implying dividing something into two equal parts.

In political and social relations, fairness means splitting gains and losses evenly. A tradition states: “Justice is fairness.”

Justice is the middle ground, the ‘just measure’ between excess and deficiency. The concept of halving in fairness involves the individual himself acting as judge, dividing one thing into two equal parts without a third party’s involvement. In contrast, justice involves distributing fairness among several strangers, with no subjective consideration and often concerning multiple entities. Justice is about placing things in their proper place, without subjective bias or personal interest. Therefore, some instances of fairness are subsets of justice, but not all fairness equates to justice. The relationship between justice and fairness is one of general and absolute specificity: every justice contains fairness, but not every fairness entails justice, as the domain of fairness is broader.

However, the saying “Justice is fairness” expresses the general meaning of justice—placing each thing in its rightful place without harm or personal gain—in the narrower sense of fairness, which involves an individual dividing one thing equally between himself and another. This use serves as a metaphor to make justice more accessible, but philosophically, the terms cannot be strictly synonymous.

Philosophical analysis reveals that justice is more precise and superior to fairness, as fairness is centred on the self, while justice is centred on truth. It is said that one cannot understand injustice without experiencing personal harm, but justice can be comprehended without self-interest; unlike fairness, which requires the self’s involvement and is therefore softened and perceptible.

Justice is founded on truth, and only those who transcend their desires can bear the burden of harsh truth. Fairness, however, is accompanied by gentleness since it is based on the individual’s self, not on truth. Anyone can embrace fairness, which carries a lighter burden and often includes leniency and mercy. A jury, comprised of diverse individuals, may sympathise with the accused and mitigate the rights and rulings given by justice; thus, a jury does not seek to establish the truth strictly. In justice, a single judge is necessary to discover and affirm the truth, while a panel cannot perform this function effectively. Nonetheless, some instances of fairness may be wholly unjust, but no ruling can be truly just without fairness.

The Challenge of Advocacy Compared to Judging

It is important to recognise that lawyers and legal professionals, in defending their clients, often resort to subjective arguments and falsehoods disguised as truth in court. The infiltration of selfish motives and evil into advocacy undermines justice. We regard integrity and moral purity as prerequisites for lawyers, even more critical than justice is for judges. Advocacy inherently tolerates trickery and self-interest, unlike logicians who seek intellectual honesty or judges who have no personal stake in verdicts. Lawyers aim primarily to justify their fees and only secondarily to address the substance of cases.

We deem purity of soul and integrity essential for lawyers because legal work is slippery and prone to demonic temptations, with benefits often outweighing ethical concerns. Advocacy demands skilfulness in proving a client’s righteousness and undermining opponents, whether legitimately or deceitfully, to secure payment.

If external factors influence a judge, they distort the verdict; if lawyers inject selfish and demonic motives, they alter the very essence of truth, turning falsehood into truth and vice versa, which is far worse than judicial distortion.

Thus, while justice is a fundamental requirement for judges, lawyers must exhibit moral purity and integrity beyond mere justice, along with fairness and honesty. Failure to uphold these principles in court undermines legal legitimacy and turns courts into arenas of injustice and public dissatisfaction, ultimately threatening governance.

Legal professionals must maintain honesty, avoiding self-interest in legislation and litigation, and rejecting deceit. An honest lawyer accepts cases of the oppressed, not defending wealthy oppressors and respectable thieves. Those serving the powerful and unjust lose their justice and credibility and cannot practise law legitimately; their work becomes mere mercenary betrayal.

In sum, law is a science demanding justice as a fundamental criterion for its practitioners—legislators, judges, advocates, and executors. In Islamic governance, justice is an indispensable condition for all senior officials; any injustice voids their authority and reduces their duties to mere jobs without sanctity, serving only personal gain or prestige. Justice must be the cornerstone of legal professional selection, such that the titles “lawyer” or “legal scholar” immediately evoke justice, much like the titles of religious leaders do.

Legal Justice and Unjust Law

Regarding courts with juries, it is crucial to note that justice has been exploited rhetorically and executed poorly by the wealthy and insensitive, who often lack compassion. Juries serve to protect the vulnerable from these harsh, unjust authorities, who enact cruel laws under the guise of justice. Juries, through empathy and emotion, restore balance in oppressive contexts.

Modern humanity cannot attain perfect justice and thus resorts to fairness—not out of disdain for justice, but necessity. Like logic, justice itself is flawless, but imperfect humans fail in its implementation. The “just” individuals who enforce laws often lack empathy, acting coldly and cruelly like temple priests imposing tyrannical rules, turning justice bitter. Juries offer a refuge of mercy, not escape from justice; true justice provides comfort and protection. Juries bring the accused closer to justice through fairness, but regrettably, terms like justice, fairness, altruism, and benevolence have lost their true meanings due to misuse by their proponents.

It must be noted that conventions and covenants, unlike the Universal Declaration of Human Rights, have enforceable guarantees, and therefore, a culpable state can be legally prosecuted in accordance with these charters and protocols.

Among humans, there is no law obliging a financially incapable and insolvent debtor to repay their debt; the existing law at that time pertained to debtors who intended to commit injustice or fraud.

This law underwent a lengthy process after the Islamic Revolution because, according to Islamic jurisprudence, “the creditor may request the imprisonment of the debtor.” This legislation provoked disputes in the Islamic Consultative Assembly. Mr Yazdi (then head of the judiciary) passed it summarily; however, in the subsequent period, it was enacted under Article 2 of the Procedures for the Execution of Financial Judgments in 1998, stating: “If a debtor is unable to repay their debt, the creditor may request their imprisonment.” This law paved the way for enforcing women’s dowries and imprisoning husbands who had initially accepted substantial dowries out of affection for their wives, as well as imprisoning contractual debtors such as those with bounced cheques — even if the debt was minimal, particularly during severe market fluctuations — which greatly increased the volume of court cases and undermined the psychological security of families and the financial stability of the market.

This harmful consequence led to the addition of a clause to this legal article, stating: “The debtor, after imprisonment, may request insolvency (e‘sar) status, and if proven, may be released from prison by instalment repayment of the debt.”

This law stipulates that those unable to repay their debts may be imprisoned by the court at the creditor’s request. The debtor may request a one-month grace period, and if the creditor consents, the judge may grant this extension. However, if the debtor remains unable to pay within this period, imprisonment will follow.

Clause 3 of this article states:

“Those who are imprisoned may request insolvency from the court during their incarceration, and if accepted, may be released.”

The problem with this legal provision is that insolvency (e‘sar) is itself a legal concept, and even during the process of investigation and proof, no one should be imprisoned. This law permitting the imprisonment of an insolvent debtor, and refusing to accept claims of insolvency during the statutory one-month grace period, is itself unjust and unlawful. To prove insolvency, incarceration is unnecessary; imprisonment does not affect the process of proving or disproving insolvency. Moreover, proving insolvency is not restricted to any time or condition such as “after imprisonment.” Enacting such laws, especially in matters of debt and indebtedness, which inherently involve a bilateral relationship between creditor and debtor, undermines financial security. Laws should be formulated such that neither the creditor’s rights are violated, nor the debtor subjected to hardship or injustice, nor anyone able to abuse or exploit the system.

The esteemed author has metaphorically described fairness as a crutch or cane of justice, aiming to reduce its missteps and increase the speed and steadiness of its steps. However, fairness cannot be likened to a crutch or cane of justice. Justice itself does not err, and fairness — which embodies mercy and leniency — cannot possess grandeur. Fairness approximates justice without substituting for it. Fairness seeks to compensate for unjust laws and human errors, and if infallibility were attainable, fairness would be redundant, as neither law nor its execution would suffer defect or deficiency.

It is preferable to examine this issue from authoritative jurisprudential perspectives. The revered jurist, the Second Martyr (Shahid Thani), states:

“It is permissible to imprison a debtor who claims insolvency until they prove it either by the creditor’s admission or by evidence familiar with the debtor’s circumstances, such as testimony regarding absolute insolvency or loss of property not limited to specific assets — knowledge of such loss suffices. In the former case, familiarity with the debtor’s circumstances through frequent contact and endurance of what others unable to bear would constitute evidence implying, not outright negating, insolvency — for example, stating ‘he is insolvent, possessing only daily sustenance and clothes.’

Whether proof with evidence absolutely depends on an oath is disputed.

Imprisonment before proving insolvency applies if the debt is monetary, such as a loan or price of goods. If cases like theft or destruction are excluded before taking the oath, the original absence of money stands. The author’s general statement relies on the nature of debt in the text. Once insolvency is proven, the debtor is released, and it is not obligatory for them to earn to pay, as the Quran states: ‘And if he is in hardship, then [let there be] postponement until ease’ [Quran 2:280].

Concerning Ali (may peace be upon him), according to al-Sukuni: ‘He used to imprison for debt, then consider if the debtor had money, which was given to creditors, and if not, he would entrust the debt to creditors saying: do with it as you wish — if you wish, reward him, if you wish, use him.’ This indicates the obligation to earn to repay debt.

Ibn Hamza and the ‘Alama in ‘Al-Mukhtalif’ concur with this, while Shaykh and Ibn Idris reject it based on the verse and the principle of presumption of innocence.

The former view is closer, since the capable must discharge debts upon demand and by earning, hence exempt from zakat, placing them outside the verse’s scope. Earning in accordance with one’s condition, even through self-hire, is obligatory, and the narration applies.”[31]

The Second Martyr explicitly permits imprisonment of the debtor — citing a narration — and employing or hiring them, but does not detail rulings nor account for debtor diversity, rendering his judgment broad and somewhat vague.

We interpret this narration as indicating the logical progression: the creditor claims debt non-payment, proven by strong evidence in court, thus the debtor is culpable for delay and liable to provisional imprisonment. After proof and initial conditional imprisonment, the debtor may respond either by refusing to pay — activating imprisonment — or proving insolvency, an excuse preventing enforcement of imprisonment. Mere claim of insolvency by the debtor suffices to prevent imprisonment.

The narration illustrates the reasoning sequence, not the enacted ruling. The Second Martyr does not distinguish these stages as it concerns a present, insolvent debtor subject to civil rights, who is not criminally liable like a willful defaulter.

Imprisonment is a punishment for deliberate injustice by the debtor. If insolvency is claimed, the judge may require a guarantor to prevent absconding, imprisoning the debtor if none is provided. This imprisonment is temporary and not due to the debt itself but to ensure the debtor’s availability and prevent loss to the creditor. This determination is at the judge’s discretion. We interpret the narration as applying to temporary imprisonment of a debtor without a guarantor. Otherwise, the debtor would be entrusted to the creditor as an agent to prevent flight. This imprisonment concerns securing the debt, not the debt itself. A claim of insolvency may block the initial conditional imprisonment, but inability to provide a guarantor can still result in incarceration.

In any case, imprisonment related to debt does not arise from the debt itself, but from the debtor’s malintent or from preventing loss to the creditor. Thus, Article 11 of the International Covenant, which states “No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation,” is correct, as it refers to insolvent debtors, not those capable of fulfilling obligations.

Chapter Six: Social Justice

The History of Social Justice

This chapter aims to discuss social justice. Although individual justice is a significant topic in legal philosophy, it will not be discussed here as it has been addressed in our jurisprudential discussions. There we have argued that justice must be defined appropriately according to each subject, and superficial appearances are insufficient to establish individual justice.

Social justice is a crucial subject within the philosophy of law and political philosophy.

Its roots lie in the naturalistic justice of ancient times. Philosophers of that era were naturalists, even conceiving God as the god of nature. Consequently, they spoke of natural justice and based social justice upon it. They defined natural justice as “the nature of each person determines their place, rank, and class.” For instance, Aristotle said: “The nature of a slave determines that he must be a slave, and he cannot be outside this class; similarly, the nature of a free person is to be free.”

During religious eras, everything, including justice, was interpreted through God. In contrast, during the humanist period, thinkers asserted that it is we who interpret our place in the world and reform and change it; the world does not interpret itself. The world is what we make, and justice is a construct of our thinking. Generally, humans create the world; accordingly, justice in general and social justice in particular, are human constructs. This fact, together with the nature of human knowledge, has generated several epistemological domains in the study of social justice, which will be addressed below.

Kant and His Followers

One of these domains is that of Kant. Kant, the founder of critical philosophy, introduced doubt into all philosophies because humans are fallible and require a method to correct reason and promote proper thinking, namely, recourse to collective reasoning and majority intellect. Thus, it is essential to understand methodology and believe that error protection depends on respecting collective thought and utilising group intelligence.

Kant believed that changing human thought methodology transforms their view of society and justice, altering definitions accordingly.

The proponent of the ‘justice as fairness’ theory is a Kantian follower. He maintains that social justice is realised only by establishing a social structure, upon which justice is founded. Therefore, justice is justice only if it aligns with a society’s structure. The necessity of this harmony implies that social justice does not exist independently, but only through the social and political context.

Social justice in this approach is a concept emerging from political philosophy and belongs to legal philosophy, aiming to shape human societies fairly by establishing political and legal institutions.

Rawls, as the founder of this approach, says that the beginning point for establishing a society based on justice is the “original position,” an initial phase where individuals operate behind a “veil of ignorance,” unaware of their status or position in society. Thus, everyone is treated equally, and social justice principles are derived from this state.

Rawls asserts that social justice includes two principles: first, the principle of equal basic liberties; second, the principle of social and economic inequalities arranged so they benefit the least advantaged.

Therefore, social justice depends on the society’s structure and institutions, differing among societies.

This approach is influenced by Kantian thought, especially regarding the importance of impartiality and reason.

Population, regardless of its long historical background, does not guarantee knowledge or understanding unless it reaches consensus based on expertise, awareness of the subject, and agreed-upon criteria. It is for this reason that we consider the jury system a deviation from the path towards justice.

Confusion Between Truth and Justice

One writer, influenced by Kant’s critical philosophy, asserts that: “Human beings have systematic cognitive errors,” in contrast to Descartes, who regarded error as random.

Kant explicitly states: “The human mind is always fallible.” We do not agree with this assertion. It is not that the human mind is necessarily and invariably fallible; rather, it has a probability of error and may err either randomly or systematically. Therefore, it is neither true that the human mind always errs nor that it never errs.

When we say the human mind has a probability of error, this probability is existential rather than logical, implying that such errors do not occur as a matter of necessity but rather contingently. Hence, caution is required during our reasoning process to avoid mistakes in form, structure, content, or assumptions—whether due to negligence, insufficient precision, undue haste, misunderstanding of the subject, or lack of appropriate criteria. Notably, until a correct conception is formed, sound assent cannot be achieved. However, the fact that humans err in certain scientific propositions does not imply that all such propositions are erroneous and must be doubted unless the principles of logical understanding and methodical research have not been observed. Humans err contingently, not necessarily; they are fallible but not necessarily mistaken. The possibility of error for humans is existential, not essential; something may be essentially possible but never actualised. To avoid error in any discipline, one must adhere to the relevant criteria and logic of understanding and proceed methodically to facilitate access to truth and reduce the likelihood of error—much like using a ruler to draw a straight line and prevent deviation.

In this discourse, those who maintain a persistent scepticism about scientific propositions should note the distinction between the status of facts in the empirical world and truth. The prevalence of errors in the realm of empirical facts does not signify an impasse to reaching truth, nor does it render truth inaccessible, though the possibility of error remains for everyone—pertaining to ordinary humans, not the infallible.

Some individuals, having failed to thoroughly investigate, lack diligence and precision in scientific inquiry, and thus err. This, however, does not mean that humans are inherently and perpetually mistaken, as humans possess the capacity to attain truth but often fail to apply their abilities due to insufficient commitment to truth-seeking rather than lack of ability.

Kant’s claim that “truth is in nobody’s hands” contrasts with the human capacity to grasp truth. Humans discover numerous truths daily—those relevant to them, at least—not truths beyond their concern.

Scientific errors arise when the natural method of scientific inquiry—which can take years—is neglected, and conclusions are hastily drawn without due care, lacking appropriate tools or employing inadequate methods. Such shortcomings cause fallibility and foster scepticism and cynicism, but these errors are attributable to human failings, not the nature of humanity itself.

Kant’s assertion that “human reason does not always lead correctly to truth, and history shows that anyone who claimed to speak the truth either erred or had only a partial grasp of it,” concluding that “all propositions must be doubted,” is untenable. His theory results in sophistry and the denial of all truths—including his self-contradictory proposition—and reveals Kant’s fatigue and disengagement from scientific investigation. Humans, while prone to error, have produced numerous accurate and truthful propositions; their errors stem from insufficient research and lack of endeavour to avoid potential mistakes.

Just as the pursuit of truth is philosophy’s primary goal, in legal discourse, justice is the ultimate objective. Nevertheless, a clear distinction exists between truth—a theoretical matter—and justice—an applied matter—and they should not be considered equivalent. Furthermore, truth and justice share the feature that the reality of both must not be confused with their truth status. The failure of justice to manifest in reality or to be scientifically verified should not breed despair or render either unattainable. As an American once said:

“Just as philosophers sought truth and either found some of it or erred, many jurists seeking justice have either scarcely achieved it or later realised their path was mistaken.”

As noted, truth is theoretical while justice is practical, so one cannot equate the status of justice with that of truth. The scholar who defines justice as equivalent to fairness errs in equating these two. While he acknowledges that “justice is practical and truth is theoretical,” he overlooks that theoretical knowledge does not necessarily translate into practical power, and the measure of practical wisdom differs from theoretical wisdom. Individuals can operationalise only a fraction of their knowledge.

Justice and truth relate in that every truth is just, but not every just act is a truth, since justice is practical wisdom encompassing practical truths only, excluding theoretical ones. Justice concerns practical rights, not theoretical rights, though it is erroneous to compare two items from different categories. Justice and truth are not distinct entities, as both mean placing things in their proper place; truth is theoretical wisdom concerning things—often involuntary—whereas justice is practical wisdom concerning individuals and functions, in which volition plays a role. Correctness derives from these two aspects, resulting in labels of truth or justice.

Previously, we noted that ordinary humans cannot fully realise justice and that only a relative minimum of justice can be sought; otherwise, pursuit of maximal justice negates justice itself.

The writer mentioned here, influenced by Kant’s critical philosophy that deems truth unattainable, suggests—as Kant did in philosophy—to refer to collective reason, and similarly in jurisprudence and justice discourse, urges legal scholars to avoid individualism and advocate collective deliberation on rights and justice. We have already explained the incorrectness, inefficiency, and deviation of this proposal.

This author regards justice as the greatest virtue and identifies the following principles as constituting justice: (1) objectivity, (2) universality accepted by collective reason and pluralism, and (3) absoluteness.

Our expectation of justice is minimal, while the principles he posits represent maximal expectations. Absolute justice is unattainable in the temporal world, making the principle of absoluteness inappropriate. This American scholar evidently lacked the ability to philosophise on complex global matters and failed to see the interconnectedness of the world he inhabits, leading to confusion. The temporal world is gradual, structured, and material, with sequential rather than abrupt occurrences, precluding absolute manifestation.

These views are articulated in the book A Theory of Justice, which made its author globally renowned.

We said that his theory led him to regard justice as humanity’s paramount virtue, stating:

“Just as truth is the criterion of all human thought and knowledge—philosophy and law alike—and everyone seeks truth, all social organisations, institutions, phenomena, and laws must be founded on justice; a system that is effective and beneficial but unjust has no value, and justice takes precedence even over goodness. Furthermore, justice is realised through fair behaviour of individuals in society.”

He ultimately advocates a procedural or systemic justice, asserting:

“We should not seek a just individual nor require a just judge for a just government; rather, the system must be designed and arranged justly, since a just social structure inevitably produces just outcomes. Therefore, in political systems, democracy and liberalism, and in economic systems, laissez-faire liberalism with state supervision, are the best designs, as they provide freedom for individuals most effectively.”

Critique of Preferring Justice over Goodness

Firstly, in critiquing this American scholar’s view that justice supersedes goodness, we argue that justice is neither beyond nor superior to goodness; it cannot be good while unjust, nor can justice be said to be the greatest virtue that surpasses goodness and happiness. Justice is an attribute, not a substance, and cannot be preferred over goodness, which is always qualified by justice; accordingly, justice itself is goodness, and injustice is badness.

The difference between justice and goodness is unlike that between virtue and justice; one can have a virtuous act that benefits another yet results in misery, but justice, wherever it exists, does not result in misery, always placing things in their rightful place and thus always being good. Therefore, justice is always obligatory, never merely recommended or discretionary. Justice itself serves as the standard and measure, not just just individuals, since justice is understood through justice itself, not through its bearers.

Tendency Toward Systemic Justice

The author rejects individual justice in favour of social or systemic justice, stating:

“One should not regard individuals as just per se; rather, a system must be designed whose output is nothing but justice.”

This approach resembles genetic manipulation of fruit to achieve a specific shape. The justice system he proposes acts as a lever compelling everyone towards justice.

Our discussion here focuses on the system’s designers and executors—ordinary individuals who are inherently self-interested and unable to judge impartially. Hence, he replaces this system with collective fairness. A just system is designed by those who understand and can execute justice. Ordinary people lack the capacity to design a just system. The system is a collective, not an individual; the collective requires just individuals to cultivate it, otherwise it cannot be just.

While we accept that our notion of justice is minimal, experience shows even this minimum is unattainable through democracy and capitalist societies—where capital, not democracy, rules—nor through so-called religious governments ruled by tyrants or clerics, which only bring hypocrisy and pretense. Neither religious nor democratic states have achieved justice, ruling instead through oppression and capitalism or communism at the expense of the populace.

If real power were truly given to the people, respecting every individual’s vote equally, minimal justice might be pursued. However, historically, both religious and democratic regimes have been rife with violence and exploitation. Wealth is concentrated in the hands of

Population, regardless of its long historical background, does not guarantee knowledge or understanding unless it reaches consensus based on expertise, awareness of the subject, and agreed-upon criteria. It is for this reason that we consider the jury system a deviation from the path towards justice.

Confusion Between Truth and Justice

One writer, influenced by Kant’s critical philosophy, asserts that: “Human beings have systematic cognitive errors,” in contrast to Descartes, who regarded error as random.

Kant explicitly states: “The human mind is always fallible.” We do not agree with this assertion. It is not that the human mind is necessarily and invariably fallible; rather, it has a probability of error and may err either randomly or systematically. Therefore, it is neither true that the human mind always errs nor that it never errs.

When we say the human mind has a probability of error, this probability is existential rather than logical, implying that such errors do not occur as a matter of necessity but rather contingently. Hence, caution is required during our reasoning process to avoid mistakes in form, structure, content, or assumptions—whether due to negligence, insufficient precision, undue haste, misunderstanding of the subject, or lack of appropriate criteria. Notably, until a correct conception is formed, sound assent cannot be achieved. However, the fact that humans err in certain scientific propositions does not imply that all such propositions are erroneous and must be doubted unless the principles of logical understanding and methodical research have not been observed. Humans err contingently, not necessarily; they are fallible but not necessarily mistaken. The possibility of error for humans is existential, not essential; something may be essentially possible but never actualised. To avoid error in any discipline, one must adhere to the relevant criteria and logic of understanding and proceed methodically to facilitate access to truth and reduce the likelihood of error—much like using a ruler to draw a straight line and prevent deviation.

In this discourse, those who maintain a persistent scepticism about scientific propositions should note the distinction between the status of facts in the empirical world and truth. The prevalence of errors in the realm of empirical facts does not signify an impasse to reaching truth, nor does it render truth inaccessible, though the possibility of error remains for everyone—pertaining to ordinary humans, not the infallible.

Some individuals, having failed to thoroughly investigate, lack diligence and precision in scientific inquiry, and thus err. This, however, does not mean that humans are inherently and perpetually mistaken, as humans possess the capacity to attain truth but often fail to apply their abilities due to insufficient commitment to truth-seeking rather than lack of ability.

Kant’s claim that “truth is in nobody’s hands” contrasts with the human capacity to grasp truth. Humans discover numerous truths daily—those relevant to them, at least—not truths beyond their concern.

Scientific errors arise when the natural method of scientific inquiry—which can take years—is neglected, and conclusions are hastily drawn without due care, lacking appropriate tools or employing inadequate methods. Such shortcomings cause fallibility and foster scepticism and cynicism, but these errors are attributable to human failings, not the nature of humanity itself.

Kant’s assertion that “human reason does not always lead correctly to truth, and history shows that anyone who claimed to speak the truth either erred or had only a partial grasp of it,” concluding that “all propositions must be doubted,” is untenable. His theory results in sophistry and the denial of all truths—including his self-contradictory proposition—and reveals Kant’s fatigue and disengagement from scientific investigation. Humans, while prone to error, have produced numerous accurate and truthful propositions; their errors stem from insufficient research and lack of endeavour to avoid potential mistakes.

Just as the pursuit of truth is philosophy’s primary goal, in legal discourse, justice is the ultimate objective. Nevertheless, a clear distinction exists between truth—a theoretical matter—and justice—an applied matter—and they should not be considered equivalent. Furthermore, truth and justice share the feature that the reality of both must not be confused with their truth status. The failure of justice to manifest in reality or to be scientifically verified should not breed despair or render either unattainable. As an American once said:

“Just as philosophers sought truth and either found some of it or erred, many jurists seeking justice have either scarcely achieved it or later realised their path was mistaken.”

As noted, truth is theoretical while justice is practical, so one cannot equate the status of justice with that of truth. The scholar who defines justice as equivalent to fairness errs in equating these two. While he acknowledges that “justice is practical and truth is theoretical,” he overlooks that theoretical knowledge does not necessarily translate into practical power, and the measure of practical wisdom differs from theoretical wisdom. Individuals can operationalise only a fraction of their knowledge.

Justice and truth relate in that every truth is just, but not every just act is a truth, since justice is practical wisdom encompassing practical truths only, excluding theoretical ones. Justice concerns practical rights, not theoretical rights, though it is erroneous to compare two items from different categories. Justice and truth are not distinct entities, as both mean placing things in their proper place; truth is theoretical wisdom concerning things—often involuntary—whereas justice is practical wisdom concerning individuals and functions, in which volition plays a role. Correctness derives from these two aspects, resulting in labels of truth or justice.

Previously, we noted that ordinary humans cannot fully realise justice and that only a relative minimum of justice can be sought; otherwise, pursuit of maximal justice negates justice itself.

The writer mentioned here, influenced by Kant’s critical philosophy that deems truth unattainable, suggests—as Kant did in philosophy—to refer to collective reason, and similarly in jurisprudence and justice discourse, urges legal scholars to avoid individualism and advocate collective deliberation on rights and justice. We have already explained the incorrectness, inefficiency, and deviation of this proposal.

This author regards justice as the greatest virtue and identifies the following principles as constituting justice: (1) objectivity, (2) universality accepted by collective reason and pluralism, and (3) absoluteness.

Our expectation of justice is minimal, while the principles he posits represent maximal expectations. Absolute justice is unattainable in the temporal world, making the principle of absoluteness inappropriate. This American scholar evidently lacked the ability to philosophise on complex global matters and failed to see the interconnectedness of the world he inhabits, leading to confusion. The temporal world is gradual, structured, and material, with sequential rather than abrupt occurrences, precluding absolute manifestation.

These views are articulated in the book A Theory of Justice, which made its author globally renowned.

We said that his theory led him to regard justice as humanity’s paramount virtue, stating:

“Just as truth is the criterion of all human thought and knowledge—philosophy and law alike—and everyone seeks truth, all social organisations, institutions, phenomena, and laws must be founded on justice; a system that is effective and beneficial but unjust has no value, and justice takes precedence even over goodness. Furthermore, justice is realised through fair behaviour of individuals in society.”

He ultimately advocates a procedural or systemic justice, asserting:

“We should not seek a just individual nor require a just judge for a just government; rather, the system must be designed and arranged justly, since a just social structure inevitably produces just outcomes. Therefore, in political systems, democracy and liberalism, and in economic systems, laissez-faire liberalism with state supervision, are the best designs, as they provide freedom for individuals most effectively.”

Critique of Preferring Justice over Goodness

Firstly, in critiquing this American scholar’s view that justice supersedes goodness, we argue that justice is neither beyond nor superior to goodness; it cannot be good while unjust, nor can justice be said to be the greatest virtue that surpasses goodness and happiness. Justice is an attribute, not a substance, and cannot be preferred over goodness, which is always qualified by justice; accordingly, justice itself is goodness, and injustice is badness.

The difference between justice and goodness is unlike that between virtue and justice; one can have a virtuous act that benefits another yet results in misery, but justice, wherever it exists, does not result in misery, always placing things in their rightful place and thus always being good. Therefore, justice is always obligatory, never merely recommended or discretionary. Justice itself serves as the standard and measure, not just just individuals, since justice is understood through justice itself, not through its bearers.

Tendency Toward Systemic Justice

The author rejects individual justice in favour of social or systemic justice, stating:

“One should not regard individuals as just per se; rather, a system must be designed whose output is nothing but justice.”

This approach resembles genetic manipulation of fruit to achieve a specific shape. The justice system he proposes acts as a lever compelling everyone towards justice.

Our discussion here focuses on the system’s designers and executors—ordinary individuals who are inherently self-interested and unable to judge impartially. Hence, he replaces this system with collective fairness. A just system is designed by those who understand and can execute justice. Ordinary people lack the capacity to design a just system. The system is a collective, not an individual; the collective requires just individuals to cultivate it, otherwise it cannot be just.

While we accept that our notion of justice is minimal, experience shows even this minimum is unattainable through democracy and capitalist societies—where capital, not democracy, rules—nor through so-called religious governments ruled by tyrants or clerics, which only bring hypocrisy and pretense. Neither religious nor democratic states have achieved justice, ruling instead through oppression and capitalism or communism at the expense of the populace.

If real power were truly given to the people, respecting every individual’s vote equally, minimal justice might be pursued. However, historically, both religious and democratic regimes have been rife with violence and exploitation. Wealth is concentrated in the hands of the few, and the people remain enslaved despite democratic structures. The social and economic conditions preclude justice as envisaged by systemic theories.

Hence, this American scholar’s theory fails to appreciate the complexity of societal power dynamics and overestimates systemic justice’s potential. The general public is not capable of impartially judging justice, nor can systemic design alone ensure justice without just individuals and moral commitment.

On the Oppression of the Weak and Deprived Masses and Its Harmful Consequences

In peaceful coexistence, hearts become pure with one another, and no one harbours ill will. In such a life, Iran belongs to all Iranians. Several million Iranians—many of whom yearn to see, smell, or kiss the soil of Iran even once, and who lament the absence of seeing their parents—have a rightful share in this land. Among them are elites who have achieved positions in scientific Olympiads; yet, regrettably, there is no programme or plan to attract and utilise their talents.

The Theory of Just and Deserved Action

The proponent of this theory considers social justice to be a mirage and a conflation of philosophical categories. He asserts:

“The claim that a society can be just or unjust is a misunderstanding, as justice is a characteristic of action and a quality attributed to the actor. Those who act justly are just. The state (especially a minimal one) and its agents should not pursue social justice; for in doing so, they infringe upon freedoms and arbitrarily interfere under the guise of justice.”

He further elaborates his view:

“Certain things exist inherently or do not exist, and if absent, cannot be artificially created; as everything either has a natural birth or dies by caesarean means. Therefore, the best approach is to observe and refrain from interference. Social justice is a spontaneous order emerging naturally from the merit and capability of individuals in society, akin to language, culture, and ethics, which arise independently of anyone’s will or control. When social justice is systematised and imposed on society through design, it inevitably leads to injustice. Accordingly, centralism and a unified authority governing affairs turn into the antithesis of justice. Liberalism is the natural state of society and economy, and any state intervention to establish justice is illegitimate, as the government lacks comprehensive knowledge about society and economy.”

This theory confuses the commonly conflated concepts of “truth” and “reality.” Justice is not a mirage, nor has humanity failed in its pursuit of justice. Just as humanity has advanced in science and industry, progress has likewise been made in justice. In the past, monarchs committed many atrocities under the guise of divine right without accountability; today, heads of governments must align their conduct with laws and justify it.

The view that entirely dismisses government intervention in achieving justice is incorrect; governments must manage executive affairs without transforming governance into monarchy. Governments should not seek power for its own sake but must exercise management and control, which is a two-way process: the state oversees society, and society monitors the state.

Meritocracy is a worthy ideal, but it does not spontaneously arise from freedom alone and must be systematised and institutionalised.

Liberalism is not the primordial nature of society; rather, it is a designed and systematised doctrine for governance. Similarly, religious governments—whose origins are divine—have sometimes sought justice and alleviated the oppressive rule of many tyrants, although some religious authorities, especially in the Middle Ages, inflicted considerable suffering, an issue attributable to misinterpretations and conduct rather than religion itself.

Governments founded on capitalism and democracy have acted unjustly, committing massacres and oppressions, yet they have provided minimum facilities to citizens. Neither type of government should be deemed the original nature of humanity. The primary nature of humans is to accept no sovereignty except that of God and His infallible messenger, who conveys divine commands perfectly and without error. Otherwise, all others are equal in subjugation, unless a majority consents to avoid anarchy, especially during the occultation era when non-infallible governance should be avoided except to preserve the essence of Sharia.

He also posits:

“If the government is minimal and small, it has no right to intervene in social relations; drafting development plans is outside its remit, and such plans must be presented by professionals and specialists.”

We assert that society comprises five components: the people, the executive, legislative, and judiciary branches, and the thinking brain of society. This thinking brain, composed of top intellectuals and experts, must propose plans for legislation. Thus, the government—large or small—must always act as the executor; otherwise, it risks stagnation.

Development plans must be proposed by elites and ideologues, then debated and approved or rejected by the parliament, and finally implemented by the government.

Governance: System-Based versus Regulator-Based

Governments can be categorised as either system-based, where governance is carried out by an established system, or regulator-based, where an individual acts as the ruling regulator. In a system-based government, the highest executive official, such as the president, must operate according to the law and does not inherently possess immunity or authority. In such governments, the law and system are fundamental, not the regulator.

In theocratic governments, where an infallible figure presides, the regulator is sovereign rather than the system. In such a government, whatever the infallible wills and decrees—necessarily guided by love, honesty, the nature of individuals and society, and their welfare—must be implemented. The system derives its legitimacy and authority from the regulator. In this framework, the infallible stands above the law; the law exists because of him, gains validity through him, and he is the source of legislation. We have provided a philosophical analysis of the infallible regulator-based governance in our book The Science of Life.

In systems where an infallible does not hold authority, no leader is immune from personal desires, ignorance, or error. Hence, the system must be fundamental to prevent leadership from descending into authoritarianism, monarchy, or despotism and from gaining historical or temporal immunity. Therefore, the law must govern non-infallible individuals, and leadership must operate within the framework of the law to prevent dictatorship. Should a non-infallible regulator gain power, even if they lose their sense of justice, they will deny others the right to question or oppose them. The authority of a non-infallible ruler is granted by law, not directly from God. Divine authority conferred by God cannot be identified in its origin nor in its potential cessation. For a non-infallible ruler, the law must never be subordinate, lest it transforms into personal tyranny or despotism. Such a ruler exercises power based on personal desires and selfishness (often with narcissism), not on specialised competence. Non-infallibles cannot fully protect themselves from self-interests and biases and are liable to error, except for leaders who act according to ijtihad and a bestowed sacred disposition, as long as their sacred justice is preserved. This sacred justice is infinitely distinct from fallible justice. The likelihood of error—particularly significant regarding ordinary leaders—requires caution, mandating adherence to law and comprehensive supervision over leadership actions.

Reciprocal Justice and Distributive Justice

Justice sometimes relates to the exchange of two goods, where the price and object must be equitable and hold equal value. Historically, states did not interfere in such transactions unless deception or fraud occurred.

Distributive justice concerns the equitable allocation of wealth, possessions, positions, and appointments. This is a governmental function carried out justly, either on a per capita basis or according to merit and virtue.

State Intervention in Exchanges

There is ongoing debate among jurists regarding whether states should intervene in reciprocal justice and private contracts, such as employment contracts. For example, in Iran, there was significant controversy over whether the government could intervene in labour contracts to prevent employer exploitation. Eventually, the Expediency Discernment Council resolved this issue.

It is important to note that past societies, where states did not intervene in citizen exchanges, were primitive. In modern civic societies dominated by systematic governance, every individual plays a role in this mechanism and cannot operate independently. The state has the right to oversee, record, register, and intervene in significant and widespread matters affecting societal functioning—such as real estate transactions—and to assign tracking and economic codes. However, state oversight should be executed via professional guilds or associations, which possess the relevant expertise, with the government acting primarily as administrator, intervening directly only to address violations. The state itself lacks specialised knowledge in every field. Through guilds, economic mafias can be prevented, ensuring order in imports and exports and preventing economic terrorists, reputable thieves often linked to governments, or political debtors from controlling market dynamics.

Consequently, contemporary societies should not be compared to traditional or primitive societies, nor should ancient customs be imposed upon modern ones. The context and governance mechanisms have evolved; modern systems operate through specialists managing various fields.

The government must act as an overarching supervisory manager, primarily executing and administering laws established by professionals—the guilds. Workers’ unions, composed of employees and employers, should develop labour laws’ content, since the government lacks the expertise to draft such regulations but provides the platform for enforcement and addresses offenders.

Our conception of government pertains to the rule of law and should not be limited solely to the executive branch, which is constrained in this respect. The rule of law attracts thinkers and theorists, whereas executive forces intervene only to prevent negligence and violations and to facilitate the implementation of expert-designed laws.

In modern convergent societies, the government may intervene proportionally in exchanges based on expert opinions from guilds and tradespeople, whose views are grounded in their knowledge and commitment to national interests. The greatest leadership role in a convergent society belongs to informed specialists who govern exchanges—namely, guilds and experienced representatives of various professions. Analogous to sports, where convergence and coordination prevail, the referee—an expert and aware individual—plays the crucial role, but executive power resides with the federation, which organises all sporting matters, including security and spectator facilities.

A society achieves convergence and alignment when specialists and experts manage it. Regrettably, today, there is confusion between “executive management” and “law-making and scientific, conscious progress.” Instead of allowing secretaries and managers to oversee cultural supervision, a single minister controls all cultural affairs. Consequently, society’s culture suffers from uninformed management; one minister makes decisions instead of many specialists, leading to authoritarianism and undermining societal convergence, potentially causing its collapse. In a convergent society, only expertise and qualifications command leadership positions, with others following.

Criteria for Distributive Justice

Distributive justice may be based on per capita entitlement or on merit and qualifications. Marxist systems view distribution through entitlement, equating worker and doctor rights. Liberal systems prioritise merit. We argue that social justice is neither purely per capita distribution nor solely merit-based; rather, criteria must be applied contextually and appropriately. Rejecting merit leads to societal decline and stagnation. In some cases, entitlement applies—for instance, in public works contracts, whether a believer or non-believer undertakes the work, their right is based on entitlement; additional payment for acts of worship is inappropriate. This is akin to a buffet where guests may eat according to need, but if food is rationed per capita, no one may consume extra. Each subject requires tailored criteria for achieving social justice. Social justice transcends simplistic or singular qualifications, instead depending on the context.

Chapter Seven: Philosophy of the Penal System

Objectives of Punishments

There is consensus that every judicial system requires a penal system, recognised by all nations throughout history to maintain social control. No one denies the principle of punishment, except those akin to sophists who reject all truths and refuse to acknowledge the sovereignty of any regime, opting for a lawless life. No one disputes that crime is wrong and criminals deserve punishment; the debate lies in defining crime, the extent, and the manner of punishment. These views vary considerably across religions and secular schools of thought.

Crime inevitably occurs in society, just as errors arise in thought. Hence, logic was developed to safeguard against error. Except for divine revelation holders, no one is immune to error. However, opinions differ on how to address offenders and what factors prevent crime. Three principal perspectives are noted here: the Principle of Justice, Utilitarianism, and Rehabilitation coupled with Victim Satisfaction.

Principle of Justice

Emerging in the late 18th century with historical roots in Judaic religious thought, supported by Aristotle, Plato, Kant, and Hegel, the Principle of Justice holds that since the offender has violated laws and harmed society, justice demands compensation through suffering. Punishment is the pain borne due to the disruption caused, legitimising the penalty by the crime committed. The punishment must be proportional to the crime, though determining proportionality is challenging and prone to errors inconsistent with justice. This view excludes pardon and mitigation.

According to this principle:
“The punishment of the offender establishes penal justice within society, restoring disrupted order.”

This perspective focuses on past crime, neglecting future outcomes or offenders’ characteristics like rehabilitation. It does not ground the right to punish in social utility but in moral and ethical necessity.

The principle asserts:
“Punishment, as compensation for societal harm, must match the gravity of the offence.”
Severity corresponds with the crime’s seriousness. It disregards whether punishment deters future crimes.

Utilitarianism (Principle of Utility)

This view legitimises punishment by its consequences, chiefly deterrence of future crimes. Its focus is prospective, not retrospective.

Punishment severity depends on its effectiveness in reducing crime. Widespread crimes warrant harsh penalties, while rare or minor offences merit minimal sanctions, complemented by rehabilitative measures to prevent recidivism.

Rehabilitation and Victim Satisfaction

This stance advocates punishment aimed at reforming the offender, incorporating psychological considerations. If punishment fails to rehabilitate, it is unjustified and counterproductive. Another variant permits punishment to satisfy victims’ need for retribution.

Critique of These Schools

Each perspective offers a partial, somewhat superficial account of penal philosophy, which is complex and multifaceted.

Effective punishment sometimes deters, sometimes reforms individuals or society, or satisfies victims. For instance, in severe economic crises causing widespread unemployment and homelessness, even law-abiding citizens might commit crimes for survival; imprisoning such individuals, especially in harsh seasons, rewards crime. Similarly, stoning as a punishment, if ineffective and damaging religious reputation, becomes counterproductive—often due to unqualified, rigid enforcers ignoring context, criteria, and consequences.

The Principle of Justice, applied without nuance, may institutionalise injustice and barbarism.

On the Prevention of Crime and the Philosophy of Punishment

To prevent delinquency and crime, it is essential to expand social knowledge and the culture of justice within a framework that emphasises encouragement and the sanctity of prohibited matters, particularly those with divine obligations. Individuals should be regulated through this positive environment rather than through punitive measures that inherently have a restrictive and negative effect. Although a penal system is necessary and inevitable, it must function with consideration of both the negative acts and the positive virtues of individuals, so as to adopt a comprehensive educational approach.

When dealing with a child, their positive behaviours should be taken into account, and any wrongdoing should be met with leniency relative to those virtues. For example, a child who excels academically and diligently observes religious duties should have their positive qualities weighed when addressing any mistakes, so they remain attentive and committed to improvement rather than indifferent to goodness. Neglecting a child’s virtues and focusing solely on faults creates a punitive environment of coercion, in which the individual neither willingly abandons bad behaviours nor embraces good ones.

Up to this point, several principles concerning the types of punishments have been outlined. Attention to these principles can serve to refine and complete existing schools of thought on the matter:

1. Punishment serves to prevent wrongdoing, guide, and educate both individuals and society.
2. A trustworthy and knowledgeable authority must always determine the manner and extent of punishment to avoid transgressions and ensure proportional responses.
3. The judicial and penal system must also incorporate encouragement and reward; indeed, the implementation of punishment is conditional upon this balance, otherwise, punishment may have a counterproductive effect, potentially turning into a societal harm.
4. When adjudicating offences committed by public servants and scholars, their good record must be considered, allowing for mitigation rather than unconditional pardon. The latter leads to injustice and disorder, contradicting the very rationale of punishment.
5. Offences should be categorised, with the judiciary prioritising serious crimes, while avoiding harsh punishment for minor infractions—especially those committed by disadvantaged groups. Failure to do so, particularly when influential or privileged offenders go unpunished, undermines public confidence in the judicial system.

If the judiciary addresses only minor crimes while ignoring major offences or crimes by the powerful and elites, such punitive actions harm society and effectively become criminal acts themselves.

A judicial system must be both just and publicly accepted. Ignoring crimes of influential figures while punishing the weak severely damages the credibility of justice. In such a system lacking public approval, the very notion of justice becomes a mockery.

Criteria for Measuring Punishment

Determining the type and extent of punishment for any crime derives solely from divine revelation. Ordinary humans lack full knowledge of all relevant criteria, the nature of existence, and the exact proportionality of crime and retribution, and thus cannot offer definitive judgments in this realm; only God possesses such authority.

It is also critical to distinguish between the original divine law and the humanly transmitted religious texts, which have undergone alterations and interpolations. Hence, prudence dictates applying the minimum penalties prescribed for fixed punishments (hudud and diyat), as these certain and unequivocal measures align more closely with justice and prevent judicial overreach that may lead to oppression.

Only a divinely authorised human can legitimately govern others; ordinary people lack such authority over life, dignity, and freedom, hence the necessity of caution in the domain of punishment to avoid indebting one human to another.

Therefore, a fundamental principle in punishment systems is to enforce the minimal definitive sanctions, considering the psychological and social impact of their implementation to maintain public trust in justice.

International legal systems, which do not derive from religion, also accept that exact equivalence between punishment and crime is unattainable, endorsing minimal sanctions based on experience and reasoned consensus.

Moreover, any judicial authority must have a collective rational mandate, such as democracy, to legitimately govern.

It is essential that the penal system be accompanied by reward mechanisms to reduce accusations of injustice. For example, eligibility for social benefits can be tied to a clean record without descending into religious despotism or suppressing free thought.

On the Application of Islamic Punishments

Islamic penal codes (hudud, qisas, and diyat) are precisely designed by experts. Claims that Islam prescribes excessively harsh punishments, such as amputating the hand for minor thefts, are baseless. Such punishments are contingent on numerous stringent conditions and are rarely executed; they serve primarily as deterrent symbols to prevent widespread immorality.

Prison, corporal punishment, and retribution should be applied sparingly, serving more as warnings than common practices.

Hudud punishments represent legal thresholds that are not easily proven or sought, with the severity intended as a societal taboo to discourage vice. For example, the minimum value for theft to incur hadd punishment is set to prevent trivial thefts from overwhelming the system and to deter thefts in impoverished groups who are more vulnerable and more likely to be deterred by such measures.

Furthermore, the implementation of punishments should only occur in societies where basic necessities are met; otherwise, it would amount to inflicting undue hardship on those suffering poverty and deprivation, which defeats the purpose of justice.

The responsible ruler must act like a physician for society, regularly assessing economic and social conditions to determine the appropriateness of applying such penalties.

Islamic punishments are thus conditional, subject to temporal, spatial, and societal circumstances. When individuals, after having their minimum needs fulfilled, nevertheless transgress, punishment serves as a necessary corrective to protect societal health.

Pragmatism and Rule of Law

“Maslahat” (public interest or expediency) is a concept that often prevents the enforcement or results in the modification of many laws. Courts, invoking maslahat, sometimes issue rulings that contradict established legal provisions. The question arises: can maslahat legitimately take precedence over law? This issue is particularly significant because many abuses of the law occur under the guise of pragmatism, where governments portray conflicts between national interests and the law in such a way that they prioritise their own interests over legal obligations.

Immanuel Kant defines maslahat in his book Social Inspection through Law as follows:

“Maslahat refers to the desires, needs, and claims expressed by human beings, for which the law must establish regulations in order to preserve and advance civilisation.”

In this work, he enumerates twelve categories of maslahat:

1. Individual interests concerning the physical and spiritual existence of the person, such as security and health;
2. Interests relating to family relations;
3. Financial interests, including property rights and claims related to the fulfilment of obligations or contracts;
4. State or public interests;
5. Social interests, encompassing the desires, needs, and claims related to social life in a civilised society;
6. Freedom of expression;
7. Public morality;
8. Preservation of social resources;
9. Public progress;
10. Individual life;
11. Public security;
12. Security of individual freedom and social institutions, such as religious bodies.

Pragmatism (or maslahat-thinking) should be understood as an alternative expression of rationality and the application of prudent analysis, foresight, and avoidance of problems or solutions to specific issues. It entails self-preservation through cautious, deliberate choices aimed at avoiding potential harm and ensuring continued wellbeing and survival. For instance, a person wears warm clothes to prevent the intrusion of cold air. Maslahat-thinking represents a rational preventative and corrective approach that can apply in any circumstance and may challenge or align with religion, law, reason, and other sources of normative guidance. The criterion of pragmatism is the preservation and continuation of life and order.

What is crucial in maslahat is recognising that sometimes maslahat is derived from rational judgement and represents truth, while at other times it is mere manipulation. An example of a rational pragmatic judgement is found in Islam: all Muslims are obliged to observe all Islamic injunctions; however, if at a certain time it is impossible to implement all rulings without jeopardising the essence of Islam, maslahat dictates that rulings should be prioritised and graded according to feasibility, and the most important, practicable injunctions should be enforced. This was the approach of Imam Khomeini, who strategically deferred certain rulings to preserve Islam’s core.

This is analogous to treasure hunters who, after years of searching and filling their ship with gold, encounter a storm and must throw some gold overboard to lighten the ship, or risk losing both the treasure and the crew.

By contrast, manipulation in maslahat-thinking occurs when one influential treasure hunter secretly conceals his share, endangering the lives of the crew, particularly ordinary sailors.

Maslahat is a fundamental principle of human reason, encompassing all matters and aspects of life, extending even to animals. For example, a hungry animal that has seized its prey will abandon it upon sensing a serious threat, or the maslahat of pruning a tree.

Maslahat represents a rational judgement not opposed by divine law. It is akin to honour and dignity — universally understood, even by animals. However, the danger to pragmatic reasoning arises from the many manipulations committed under its banner. For instance, ambulances, fire engines, and emergency vehicles have the right to use sirens and proceed quickly through traffic, even disregarding red lights; this is legitimate maslahat. Yet, if a driver uses a government vehicle with sirens for personal matters, this constitutes manipulation, not maslahat.

Often, manipulations disguise themselves as maslahat. For example, some elites and their relatives are shielded from criminal prosecution under the pretext of maslahat, which undermines public trust, weakens government legitimacy, diminishes officials’ popularity, and fosters secularism in religious governments. Such deceit leads society to disbelieve in maslahat, associating it with falsehoods, slanders, and oppression — thus, endangering the religion itself.

Another example of pragmatism is the separation of powers and the delegation of legislation to the Islamic Consultative Assembly, although legislation is traditionally the domain of jurists. Since jurists may lack the capacity or expertise to determine the people’s interests, this responsibility is entrusted to representatives. The formation of such pragmatic institutions is itself a matter of maslahat, comparable to consulting a medical commission when a precise diagnosis is unavailable.

However, confusing individual interests with the interests of religion and the system is a form of manipulation.

The quintessential example of maslahat in Shia Islam is taqiyya (dissimulation), which serves to protect the religion and its followers in the interest of preserving the faith—not to safeguard oneself at the expense of religion, which would be manipulation, not taqiyya. Saadi opposes such a view, stating:

“Better to speak truth and remain imprisoned than to gain freedom through falsehood.”

Maslahat generates secondary rulings within religion. For example, drug addiction and repeated use of narcotics are forbidden due to their harmful consequences; however, the one-time use of opium does not cause addiction or severe harm, so its original ruling is not prohibited. Nonetheless, the system may ban the sale and use of opium entirely for the sake of public interest, thereby assigning a secondary prohibition to maintain societal health.

The domain of maslahat-thinking is so broad that it can obstruct the enforcement of any ruling harmful to religion or society, or, based on changing circumstances, it can confirm, restrict, or extend the original ruling. This is always contingent on the derivation of rulings from new factual circumstances, rather than altering the ruling itself. Maslahat may limit or suspend religious rulings provided it serves the religion’s and society’s collective interest, not that of an individual or political group — which would amount to manipulation rather than true maslahat.

Maslahat is absolute and unrestricted, with its recognition depending on the specific case and knowledge of the circumstances. Thus, it is impossible to categorically assert Kant’s statement:

“One who possesses a legitimate or prior right has preference in maslahat.”

For instance, the maslahat of religion or society may override individual interests, but it cannot be asserted that the maslahat of religion or society is never the individual’s maslahat. Maslahat is measured according to worldly wellbeing and ultimate salvation, determined by good rather than mere benefit or harm. Kant’s assertion is therefore aligned with utilitarian thought.

The public and societal maslahat always takes precedence over religious maslahat, since religion without its people is meaningless. The religious life is actualised through its followers, and law is intended for the people; losing them undermines its primary purpose of guidance and its foundation. Prioritising religious maslahat over public interest is characteristic of self-serving politics. Like a shepherd who protects his flock rather than sacrificing them, religion serves people, not vice versa. Religion commands leadership and authority over people to guide and serve them—not to enslave them. Imam Khomeini highly valued the people, calling them the “patrons of the Islamic Republic’s officials.”

Maslahat is relative, depending on time, place, and other conditions, and may vary accordingly. All divine rulings are subject to maslahat and its criteria. As explained in detailed jurisprudential studies, moral values such as good and evil (ḥusn and qubh) are rational constructs reflecting external realities. Maslahat and harm are mental concepts derived from external facts, representing rational philosophical secondary concepts. All rulings have an external and objective standard based on which their maslahat or harm is judged. Maslahat may even influence primary rulings based on changing circumstances, such that the original ruling may be suspended or altered due to new facts, provided the topic is accurately identified, preventing instability in the religion’s essence and immutable primary rulings. For example, certain hudud punishments might be suspended when social conditions are unsuitable for their enforcement, as enforcing them would contradict religious values and demean the faith. Thus, the ruling remains valid, but its enforcement is suspended due to changed circumstances.

Conversely, breaking a red traffic light at night when no other vehicle is approaching remains prohibited; urgent personal matters cannot justify violating the law, as it would undermine legal stability.

Some rulings apply broadly to prevent general harm—for example, the prohibition of wine or consuming stones. Although consuming a small amount may not cause obvious harm, the general ruling prohibits them to prevent wider use. The universal ruling thus precludes even minor usage to avoid facilitating general consumption.

However, judges cannot unilaterally base their rulings on maslahat they personally discern, unless the law explicitly permits it. For example, if someone demolishes a neighbour’s wall to save a trapped person, the neighbour is entitled to compensation; the judge cannot dismiss the damage claim solely on the grounds that a life was saved.