The Jurisprudential Criteria of the Guardian Council in the Conformity and Declaration of Non-Contradiction of Laws with Islamic Principles

Abstract

The jurisprudential criteria of the Guardian Council in conforming and declaring the non-contradiction of laws with Islamic principles, as outlined in Articles 4 and 94 of the Constitution of Iran, is the subject of this article. This research is applied in nature and conducted using a descriptive-analytical method. Following the hierarchical order in the Iranian legal system, the primacy of the Constitution and Sharia over ordinary laws has been accepted. However, there is no specific jurisprudential criterion established for the conformity and declaration of non-contradiction of ordinary laws with Sharia, leading to numerous disputes and disagreements in this field. The prevailing theory is that the relationship between sources and foundations has often been disregarded, and the Guardian Council has referred to issues in rejecting parliamentary laws that either lack religious foundations or are not related to Sharia at all. Beyond the differing views on the oversight role of the Guardian Council under Article 4 of the Constitution over previous laws and regulations, it appears that this oversight cannot be fully carried out without the intervention of the Parliament. However, the Constitution has not provided any formal procedures for this process. The adoption of legal opinions and the formulation of legal provisions in this regard is deemed necessary and essential. This is while, in many cases, when the Guardian Council’s jurists have ruled laws to be inconsistent with Islamic principles, at different points in time, those same laws have been approved by the Council in a different form or context.