Unity in legislation (1)

Introduction

One of theological issues that Imam Khomeini has mentioned as the basis of religious rule’s infer and knows theocracy based on it, is Tawhid in legislation and law making. Talk of unity in legislation and regulation and the role of religion in government legislation must be examined. This means that in the religious state who can make the laws and who is a legislative?
There are different ideas and views in the discussion of who can be legislators: some believe that the law executor and the state must make the laws as well. They say that individuals, who have a series of natural evolution, are naturally surpassed to others in community and begin to have social affairs in their hands little by little and ask people to obey them. People obey by their commands either willingly or out of fear of punishment... all of these people that have intelligence and other mental faculties and own a lot of talents, are the drafters of the law.
According to this view, elites and leaders of the community may have the right to legislate to impose law and ask other people to adhere to the provisions of law and punish them for violations. In fact, the basis of commitment and adherence to this law is based on this matter that due to the talent and ability that they have others are obliged to follow them.
Others believe that legislation is the right of all people. All can apply legislation, but it may not be possible to have everyone's opinion on an issue. Some on behalf of the people execute legislation and then it can be put to a plebiscite. In summary, legislator is from mankind. This theory is based on humanism and human-centric which puts human and his desire as axis of value and judged and believe that human being has reached a level of rationality to see his needed materials and has this understanding of making law by himself.
But in fact, in Islam God is the real lawmaker. Monopoly of legislation in God is the result of the expansion of monotheistic idea in the social life. Based on monotheism and God-centered view of Islam, the adoption of any law except the law of God, is idolatry.
To clarify the status of legislation in Islam and Imam Khomeini's viewpoint and proving monopoly of legislation in God, it is necessary to clarify the meaning of the law that what is the purpose of law? And how law is necessary in society and how the need of divine law is justified?

First Speech: Conceptualization

Literal meaning of the law: There is much controversy in the roots of the word "law”. A group of people believe that the word is of Greek, a group believes it is from Roman, a group assumes it is of Persian and a group considers its root as Arabic. Dehkhoda writes "they say the word is Arabic form of “focus” and is not Arabic, but is used among Arabs". In Lisan al-Arab it is said: "Law: principles of the law. The word is not Arabic." In Taj al-Arus the law has been defined in such way: "scale and the measure of all things, a general issue that matches with all its details and the details of its provisions will be known, like the words of syntactic experts that say: every subject is nominative and every object is subjunctive".
The word in Dehkhoda is in such meaning: "it is an overall thing that coincides with all its details and the provisions are to be known by that, as syntactic experts say: each subject is nominative and the object is subjunctive and possessive is genitive”. In another part it has been said: the term of Law, although has been titled as Medicine book of Avicenna, and in the music is of inventions of the second teacher (Farabi), but the word is derived from the Greek word «Kanon» that provides multiple meanings, including: procedure, rule, order, tradition and command, and the principle of everything.
However, terminological meaning of the law in scientists’ society is a general topic that is coincided with a group of people and status of all those people is known from that criteria and usually law refers to a series of rights and duties.
One of the contemporary jurists wrote: the law: the origin goes back to «Kanon» that means the regulations by church officials and the word is a Latin word. However, there is no doubt that this word is not Arabic in the origin. In Arab word, it is used in the sense of size and scale of objects and in all cases following terms are used:
A) the general rule (and sometimes partial rule) that was composed by the competent authority and approved by legislatures and are then signed by the competent authority.
B) Includes a set of legal norms that is assigned by legislative.
C) There are many examples of law and does not have a particular case.
Sometimes a law is used in the following meanings: A: The general or particular legal rule which is legislated by legislative branch. The real meaning of law is the above sentence, and in this meaning, it does not include ministerial decree or code which is legislated by the executive branch.
Elsewhere, in the special and general interpretation of law they write: When in the legal sources, they talk about law and this resource is used in the face of common sense, it means all the provisions which is legislated by one of the competent federals of government, whether the organization is the legislative branch or a member of the executive branch or the head of government. So, in this general sense, the law applies to all legislations of assembly and administrative decrees or codes.
Law in Islamic rights in the constitutional law is said to the rule which is imposed by the Islamic Consultative Assembly by prescribed formalities in the constitution, or is directly imposed by means of referenda. Principles (58 and 59); that the law has special significance which differs from the decisions of the executive branch and they should not be used interchangeably.
Arab lawyers, when argue about the meaning of the law, state special and general meaning for law: "The law in general meaning (Drok) is the set of binding rules that governs their behavior and communication in the community, and this meaning is close to the literal meaning, because the law in this term specifies a system that would connect people and their behavior based on that flow. This is a general sense of it that is applied when the word is used in an absolute way. However, the intention of the law in specific sense is a certain rule or set of determined rules that the legislative branch lays it out to set a certain issue...
One of the leading thinkers in the contemporary age writes about the concept of law: "The word" law "is used at least in two senses:
One in nominal and contractual and conditional affairs and the other in real and actual affairs. “Credit Act or legislative" portends on dictation. "Of course, every driver should drive his vehicle on the right path", is one of the traffic regulations, expressly indicates "a dictation" or a "should", but "the uncultivated lands is permissible and anyone can capture them" explicitly does not indicate any "dictation”.
Although, it implicitly shows that "no one should bother anyone or become a barrier for them who are capturing the wastelands" anyway: Both of these laws are legislative or validation rules, and the basis of all laws, such as laws that legislative assembly makes them, and the government is responsible for implementing them, and the judiciary punish violators of them, and executing laws of ministries and two governmental and internal regulations works of each organization and institution are validation rules.
"The formative and real law" talks about the story of a numen relationship, which has nothing to do with validation and status and contract. laws such as the "sum of the two", "two is four" and "Water boils by heat "," the combination of oxygen and hydrogen is water "... orderly are from the laws of mathematics and physics that speak of numen communications and do not depend on the situation, so are real laws."

Second speech: Legislation

Legislation means legislation by the parliament of "Dar al-Shura», and the reference that states the law is called the legislator. The author of law’s text is "legislator" other than being approval of the law. Author of civil law (A.T. Fatemi) was «Redacteur». Arabs call the legislator as Moshare (on the weight of Moalem (teacher)).
Now the world's oldest legislator that scientific history (archeology) introduces is in the East, the land of Sumer and he is "Or-Nemo," the founder of the kings of «Ur» that lived three hundred years before Hammurabi (reigned since 175 BC.) it means that he lived 3747 years before the present year is 1998. His law was removed from the soil that more than half of it has been destroyed. In that law, instead of blood money, "paying cash" was decreed. To discover the truth about the person, they threw him into the river, if he was drowned, it was false!
Dehkhoda dictionary in definition of legislator writes: " legislator: those who legislate, legislator ...”
We used the statements of lawyers and philologists that legislator is the competent authority who is responsible for establishing law according to the common good, and legislation is enacting the law that in contemporary times is passed by the House and the parliament and other government’s institutions are required to implement it. After explaining the literal meaning of the law and legislation, the next question is what the law is necessity for in society.
The need for legislation: basically, what need is for the existence of law in society? Cannot human society organize their affairs in various aspects without law and do not require the law? To explain the necessity of the, law we can use its introduction and conclusion.
The necessity of collective life: the human being lives in society and public life is essential for human life. It does not matter whether the origin of this necessity is of nature and human nature - that brings humans into the community - or emergency. Requirements for life and non- ability of human to solve problems individually, forces man to take refuge in community and solve the life’s problems by social cooperation.
Or living in community is a rational matter and makes human’s brain to avoid isolation and have tendency towards society. However, whatever is the cause of human sociability, human is a social creature, and social life is inevitable.
Social life: in the social life connection and gathering occurs, because the nature demands of human are insatiable, and everyone wants all the blessings of nature to be his and wants others to be like a slave in service of him. These carnal demands of human led to conflict and friction in interests, and everyone wants to get more interest, so they try to omit the competitor, and this clash and conflict causes the disintegration of public order.
Therefore, in order to maintain public order and safety and social justice there should be limits so that obeying them is necessary for everyone, and violation to these limits is a violation of the rights of others, and these limits are called the law. To maintain public order and prevent the invasion and destruction of the right, the law must exist in community so that in the shadow of law, the rights be respected and the offenders be punished.
After accepting social life as an unavoidable necessity, we need to have law in order to maintain public order and security and social justice and avoiding oppression. The existence of a law is an inevitable necessity for social life. By noting these premises that humans have social life, we cannot imagine human without the community, because the necessities of life force human to have freedom and will or desperation and gouge to rely on society.
When the man turns to the community, no matter how complex the society is, conflict and friction in interests will be high and for solving the conflict and restoring order and security, there should be a law to stand in front of conflict and oppression under the supervision of this law.
Schools of law and legislation criteria: after prove of the necessity of law in society, now the question is that who is the legislator? And what is the criterion of validity of this law? In the case of criterion of legal validity of the law "Some believe that natural laws or intellectual laws narrate about a number of numen facts. Thus, it is not a correct interpretation to call anyone as improper or legislators, because the legal facts can be discovered and that such person who does that is "the lawyer" or discoverer of the law, nor the drafter of legislation.
Others say: "legal laws have natural differences with the laws of nature or intellectual laws. The consistency of legal laws is related to credibility and composition and dictation. Legal laws do not warn about a fact and legislator does not discover anything, but he credits and composes some issues. Therefore, legal rules are really levied, so it is revocable and transformable, unlike the natural and formative laws that could be neither falsified nor resolved and prescribed".
There are different views about the origin of the validity of the law, and legal schools each look at the value and validity of the legal concepts from varied perspectives that are explained in follow.
1. The school of natural rights: those who see a reality for rights and know the legislator as discoverer of a series of real laws. Proponents of natural or rational law state that: credibility of law is its inherent and is not capable of forgery from anyone, so that geometric rules have inherent credibility and does not have reputation from a person or people...Anybody else that discovered geometry rules other than Euclid’s had credits as well. Basically, the validity of any provision, incipient and legal, is dependent to the same provision. If it shows facts clearly, it will be valid and correct, and if it is not corresponding with objective outer matters, it will be invalid and incorrect. Legal provisions are also of the legal and incipient laws. Thus, if they are true in reality, they will be considered valid otherwise they have no credit, but since majority of people are unaware of the authenticity of legal rulings, inevitably choose anybody as legal expert who is more aware and knowledgeable and elect him to discover real corruption and benefits to regulate their social issues and enact the appropriate legislation, and this is nothing but returning to expert - that flows in all life's problems, whether social or individual.
Theory of natural rights which believes that the legal rules exist in nature, faces with the question: What is the meaning of nature? If the meaning is the universe and the cosmos, it is not hidden in conceptions of legal laws that are from issue of canonization. If they say nature is a requirement of legal law, as life is necessity of human’s nature, this necessity of life has a specific territory. It must have a specific range and that range is formed on the basis of what criteria? Therefore, we cannot achieve legal rules based on the theory of natural rights.
2. Divine Law School: In contrast, proponents of the divine rights devest any inherent validity of the legal laws and say: the validity of the legal Laws are from God; God has passed these laws and he is the source of their credits. So the prevailing legal system in a society is valid if that lead to God.
3. Positive laws School: this group is made of those who know the origin of validity of the law as the acceptance of people. A law is influence and credible that people have accepted it. If the legislator in the legislation position take into account all the corruptions and benefits of people and set rules on the basis of it, but the legislation is not accepted by the people, is not credit.
In the value system of Islam, the legal laws such as the laws of physics and geometry do not have inherent credit and people cannot give credit to legal rights as well and standards of value and credit of law be the public’s demand. But in the authority and influence of law, the basic requirement for it is to return to God and the source of credit of law is legislative lordship of God. According to the monotheistic worldview, acceptance of any law that is not rooted in God's legislative lordship is Shrek (dualism). Imam Khomeini writes to prove that legal law in the Islamic value system should be derived from legislative will of Allah:
From here you should know that the legislator must be someone who is aside from benefit and lust and passions and transgressions, and we do not assume these things about him, and it is no one but God. So legislator should not be any one but God and as the wisdom commands that legislation is duty of God ... we shall judge taht righteous God has done its duty, or else we should recognize fair God as a responsible and traitor existence… it is here that religious scientists say: religion is the big law of God which has come to govern the world and whirl the wheels of life and everyone acts upon it, achieves the happiness of the two worlds.

Rational arguments of Unity in legislation

A) The legislator must have unlimited science of all personal and social, physical and mental, physical and spiritual matters to be able to set the law that applies to all aspects of human existence.
This feature is only in God. Then he should legislate for human life.
B) The legislator must be away from selfishness and collectivism and impose the law in a manner that is in accordance with justice. We should explain that: only being aware of corruptions and benefits of the world is not enough to enact legislation. One might consider legal materials well, but personal, family, or group tendencies stop him from imposing the law in a way that he recognizes. Such individual supply such thing as the law which would provide his own or his group’s interests. So in addition to knowledge of benefits and corruptions, he must be someone who's selfishness and collectivism does not trample truth and justice.
mentioned criteria makes it clear that normal people do not have such immunity; it means that everyone is inevitably influenced by the biases and ensuring that someone is completely immune to the whims, is highly unlikely and impossible, but the high God is completely aware of benefits and corruption, and he does not look for any loss or gain. He is an absolute needless existence and is not influenced by any intend.
So this is another reason the law should be imposed by God, because he is pure and innocent of carnal desires and individual and group interests.
Therefore, man has no legislative competence, because firstly, human does not understand all dimensions of human existence and his material and spiritual needs. Human’s knowledge however is high, is still related to nature and the human body and cannot have a full understanding of the human psychological traits. Moreover, humans will be affected by emotions and feelings and loses realism that is necessary for legislation. So the law should be derived from legislative will of God. A legislator who has endless knowledge and considers the corruptions and benefits of people and is not under the influence of personal desires, and his self-interest do not interfere in legislation.
Islam also adds that basically legislation is the right to anyone that can dictate humans. If some individuals are aware of society's interests and can truly precede society’s interests over individual and groups’ interests, still legislation is not the right for these people, because each law contains a dictation whether it is aware of it or not…each law has a clear dictation or necessarily they say do not invade people’s properties, which is explicitly prohibition or they might say to respect property of others that is explicitly a command.
Sometimes the language of law is not dictation, for example it says a right is constant for such a person. This means that others must regard this right, and that is what the law implies. Moreover, this right should not be violated by others. This prohibition is implied by the law. So lawmakers should have the right to command and forbid others, and this right is originally for God, as the first condition - that was the legislators should have highest knowledge about the mankind benefits - is perfectly in God, because more than anyone, he knows his creatures’ benefits.
Also, the second condition which is the legislator should not precede individual benefits over social interests, exists only in God in a perfect way. because God has no interest in his creatures; if all people become believers, no interest will be for God, and if all people become infidels, no harm would be for God...