Legislation, Custom and Expediency from the Perspective of Constitutional Scholars

Legislation has always been one of the major functions of the politico- legal system of the society. This issue was investigated first among different scholarly, religious, legal, and socio-political classes about a century ago. Since the Iranian society is one possessing a religious culture and literature, the points of view as well as the theory makings of Muslim jurisprudents concerning legislation are considered among the most fundamental and influential causes. On the other hand, the relation between jurisprudence and law has been one of the most controversial legal issues since ancient times. In other words, while religious rules are available in the Muslim society and jurisprudents are ready to respond to any religious question and need, what makes modern legislation necessary? Thus the present article relies on three principal hypotheses respectively. a. Establishment of an organized structure for legislation i.e. Parliament next to the jurisprudential institution is one of the expediency- based requirements in contemporary time and place. b. Alongside religious rules and regulations stated by jurisprudents a large number of customary and administrative newly arisen issues can be settled through legislation. c. Conventional laws according to expediencies are legislated by the parliament and supervised by a body of jurisprudents satisfying religious interests. Considering the thoughts of the scholars of the constitutionalism era, the article seeks to clarify the point that elements such as custom and expediency are quite essential in legislation. The present article is in three parts dealing with the nature, the causes and the qualities of legislation towards a good explanation of the relation between religion and law.