The relationship between the jurisprudence and the law

The close affinity of jurisprudence and the law in legal system of Iran, is so large that some believe the law is the same jurisprudence and substantially these two have no difference to each other.
In Iran before the revolution, jurisprudence was one of the main sources of law. The second principle of the constitutional amendment is about the duty of the National Assembly:
“In any era of all ages, rules should not be against the Islamic laws. Although gradually various factors made a distance between the law and religion- and in some cases, the laws were totally inconsistent with Islam and appointed by the parliament- but after the revolution, once again the jurisprudence found a close relationship with law and was adjusted with it. In a constitution that was appointed after the Islamic revolution by the Constitutional Assembly of Experts, the conformity of jurisprudence and law has been approved. In the fourth principle of constitutional law it has been said that:"
All criminal, civil, economic, financial, cultural, political and military rules and regulations should be based on the Islamic laws. This principle refers to the public or all of the principles of the constitutional laws and regulations, and this will be recognized by the Guardian Council." also seventy two principle is this:
"The Islamic Consultative Assembly cannot appoint the laws and decrees that are against the religious principles of the constitution or the official religion of the country. This will be recognized by the Guardian Council and according to the ninety sixth principle."
The concept of these two principles is that the laws that have been appointed by the Islamic Consultative Assembly and then the Guardian Council, should not be opposed to the official religion of the country and also the constitution; however, it cannot be supposed that the law is totally adjusted to jurisprudence and has lost his origins, because despite the communication and excessive dependence of law to jurisprudence, each one is a separate knowledge, and has a target , resources and a different structure.
the principles also do not show that basically the legislative institutes should be based on sharia ruling - ranging from individual and social task- and its implementation should be guaranteed because the content of these two principles is that the imperative decrees that emerges by the government must be in accordance with the requirement that is in the Sharia law, but any mandatory that exists in Sharia should be ruled under the guarantee of the government and its requirement is another question.
So basically we should pay attention to the relationship between law and jurisprudence and the differences between juridical and legal elements and the point that where the difference origins, and also this question that whether all jurisprudential views of the Islamic society are binding? Otherwise what criterion exists in the legislative process that some of the Sharia verdicts are considered as legal requirement and the executive power and others do not?
Briefly we can say that the joint point of the divine and human rules is that both sciences speak about rules and laws: rules and laws that have been issued from the position of authority and it is signified by permission or restriction.
Their aim is also close to each other but their difference is that the aim of science of jurisprudence is obedience of God's sentences; the decrees that are issued by God to train the competent people, and to provide the happiness of the world and the hereafter and creating the discipline in the affairs of people and community – based on justice and legislation , but the goal of law remains is either implementing the justice or the creating the social order and its aims do not necessarily conform to the goals of jurisprudence. The lawyer’s approach is for this world at providing mechanism by social order, but the divine laws aim to meet the happiness of hereafter and on the basis of common theory that is based on a series of real benefits and hurts, so that even if the aim of order is not known, it is accepted yet.
Since Iran's legal system has a near relation with Islamic jurisprudence, we should consider their relationship in terms of rational cases.
The answer to the above mentioned question is based on knowing the answers of the following questions:
1. Whether all laws and regulations should be based on Shari decrees?
2. Whether all Shari decrees should be lawful to guarantee their implementation? If the response to these both questions is positive, their relationship is equality and in the case that both answers are negative, their relationship is public and in the event that one answer is positive and the other one is negative, their relationship is absolute.
Lawyers often know the relationship between divine laws and human laws as the public relationship, on this basis, their community cases are many detailed laws and they will be distinguished by cases of the science of jurisprudence, worship verdicts and some other tasks , such as ban of lies and backbiting, decrees of vow , promise, paying the damages, the use of gold ornament for men , rights of parents, taboo of eating the dead’s meat, and from the perspective of the science of law and human rights laws, it includes the differentiation, such as the laws of exports and imports, customs, transportation, work, registration, regulations relating to the mines, universities, and development of roads.
Answering the first question, which also includes many discussions, is considered a sub argument to the subject of this paper; therefore only in the context of the conventional rules, it should be noted that: whether the legislation is the exclusive right of God and others don't have any right to appoint a law and there are two viewpoints in cases that human has the right to establish a law just when there is no clear statement of God, some of scholars believe some kind of legality in the Sharia that only God has the right to appoint a law, and Almighty God has done the legislation at a range of human behaviors and actions and with the appointment of laws has guided the personal and social movement, but beyond this series, which is called Sharia, has granted freedom to human and he has the right to establish some requirements without attribution to Sharia. Martyr Ayatollah Sadr by giving a theory is one of the fans of this theory. Ayatollah Nayini is another fan of this theory too. Against this theory, there is a view that according to the Islamic religion and due to some traditions is so complete, which includes all the laws and decrees required by humans in individual and social life. It is possibly said that in addition to all legitimate powers of leadership to issue laws, the jurisprudence also has the capacity to respond the needs of people in different social spheres and through rich natural resources we can largely issue the necessary legislations; though so far jurists for various reasons, as they should, have not followed these decrees.
But in response to the second question, as it seemed, some Sharia elements, have never become legal requirement. We must see that primarily what the reason is that some of the sharia decrees are the base of law, and others do not? It should be taken into consideration that law has the social approach and human laws, except few cases, are the viewer of social relations, so some of the lawyers, has defined law in this way:
“Laws are regulations that rule on the people who are members of society.”
Law has the same property aimed at regulating the social relations; so the moral and religious duties that have an individual and personal aspect are often is outside the territory of law but jurisprudence includes a wide array of the individual and social tasks, some like the verdicts of worship are considered individual verdicts, and others are considered social decrees like ordering to good deeds and preventing the evil deeds, Jihad and judgment. Can the sociability be considered as the criterion for entry of rulings to the arena of law?
First, there are some laws that have individual aspect, such as the necessity of seat belt and a ban of abortion and drug use that create a hesitation on the totality of such measures, and secondly we may cannot draw a clear and precise border between individual and social rulings; whether many individual verdicts have some of the social dimensions, and it is also true about social rulings.
sometimes legislator due to some necessity and benefits, establishes some regulations that are necessary in the individual and private lives of people of the society and if the legal system is religious, he attempts to the possible extent to co - ordinate the conventional rules with canon laws and decrees, and so a range of sharia law are placed in the orbit of laws, but some of the Sharia laws may not be necessary from the legal perspective, so whether from the perspective of Sharia, there is a reason to oblige the establishment of their requirement?
Response to this question, is based on the study of a very important and essential point namely determining the circle of human responsibility towards the divine tasks. As we know, Shari decrees follow some benefits and damages. Basically we must see to what extent we have a duty to execute Shari rulings, criteria and passions?
Without any doubt, human have to fulfil his obliged duties but what is his duties towards others? Is he responsible to follow the goals and passions of the legislator and for the implementation of these goals impose them to others?
In response to this question we require a separate and independent research, we can only mention this point:
It is used that the goals of legislator are two kinds: 1. purposes dependent on the human, it means that people have duties to achieve the goals of the legislator; 2. the legislator on his own should cause a motivation in people to achieve its purpose.
Accordingly, it can be concluded that: if there is no order towards urging others to do their duties and passions of legislator, human has no responsibility, not see the great purposes , according to evidence it shows extraordinary contribution towards the achievement of legislator’s goals, and people cannot leave or neglect them, one of them is bound to education, though it appears that no rule has issued a task ; yet , for all purposes, we cannot say that the wisdom has obliged a task for human, though some scholars are used to pursue all necessary legislator purposes.
Then we follow the reasons, which may be used as the rule and reason of wisdom; and finally we will narrate and discuss some other related issues.