The Theory of the Choice of Fatwa for Legislation

The constitution of many Islamic countries, including Iran, requires that all laws be based on Islamic rules. To comply with Islamic rules, religious sources and fatwa [religious decree] of religious scholars should be followed. The question, therefore, is which fatwa is the criterion by which legislative compliance with Sharia [Islamic law] can be achieved? Several theories have been expressed, such as the most knowledgeable scholar’s fatwa, the most famous fatwa, valiye amr [supreme leader]’s fatwa, and the most effective fatwa. This paper presents an alternative view, namely the theory of choice of fatwa for legislation. According to this theory, compliance with Sharia can be achieved by using any fatwa so long as it is issued by Shi'a jurists. Thus, enacting laws according to the fatwas of the mujtahids [Islamic jurists] will secure compliance with the Sharia. Based on this thesis, it is not necessary to enact laws according to the fatwa of the most knowledgeable scholar, or the most efficient or famous fatwa. Supporters of this theory are such prominent figures as Muhaqiq Naraqi and Sahib Javahir. In this research, the arguments for this theory have been stated and its problems have been resolved as much as possible. The adoption of this theory will offer a choice of fatwa in the legislative process, as well as a choice of fatwa by the judge in cases of non liquet. A law or judicial decision is considered to be contrary to Sharia when it is inconsistent with the consensus opinion of Shia scholars. The research method in this study is descriptive-analytical.