The Influence of Religion on Law in the Iranian Legal System

Chapter 14
The Influence of Religion on Law in the Iranian Legal System

Naser Ghorbannia

The relationship between religion and law is complex, and the influence of religious ideas on legal traditions is undeniable. This chapter aims to explain the influence of Islam as a religion, and especially Islamic jurisprudence, as an important part of the Iranian legal system. It is important to point out at the outset the philosophical foundations for this phenomenon. Religious beliefs constitute central elements of the values that shape the rules, principles, rights, obligations, and institutions governing societies. Religious morals and law are indistinguishably mixed together. Many consider religion and law to be inseparable concepts and deem them to be one and the same. Conversely, according to most legal philosophers, any legislation should be based on social values. Religions provide an ethical system that is widely viewed as benefiting us all.

The law and social norms of societies have deep ties to the various religions of the world. Without their religious foundations, it would be difficult to claim that we could still view legal systems—especially criminal law systems—in the same light, except in the sphere of lex naturalis, or natural law.

The laws against murder are legislated to protect human beings. Even if there were no religions, murder would still be prohibited under the law, because it is a part of our human nature to abhor murder. This prohibition is rational, eternal, and universal. All human beings can understand it by the nature of their very reason, which has been considered intrinsic to the Prophet Mohammed in the Islamic tradition. But this proscription against murder is also the most fundamental part of divine books. For example, we read in the Bible, “You shall not murder,” and the Holy Qur’an emphasizes that killing one person is the same as killing all human beings: it destroys all of humanity.

Likewise, we are all socialized to know that it is wrong to steal, to commit fraud, and to commit perjury. Also, Almighty God commanded that we should not steal, commit fraud, or tell lies under oath.

In addition, one can understand by reason that it is obligatory to honor one’s contract. God commanded us to observe the natural rule pacta sunt servanda (all agreements must be kept), but it is evident that all legal rules are not natural. Emile Durkheim (1961: 475) credits religion with maintaining social order. According to Durkheim, religion plays an important role in legitimizing and reinforcing society’s values and norms.

In his book Law and Religion, Gad Barzilai (2007: 650) writes that different Muslim cultures have interpreted religious rituals in a variety of ways. He has demonstrated that contemporary legal systems derive nourishment from the religions and religious values of their respective societies.

It is not difficult to show how discrete religious traditions contribute to evolving legal traditions. Religious ideas have influenced criminal law and family law not only in Islamic societies but in non-Islamic societies as well. The French legal philosopher Georges Ripert has shown that many fundamental principles and rules of the French Civil Code, even those in the Law of Obligations, have been derived from Christian ethics. In his book La Règle Morale dans les Obligations Civiles (Moral Rules in Civil Obligations), he criticized René Demogue, a French law professor, because he interpreted the French Civil Code without paying attention to Christian morals (Ripert 1949). Even according to Hans Kelsen ([1967] 2005), who strongly defends “pure theory of law,” legal provisions cannot totally be separated from ideological considerations.

It is important to point out that even in the sphere of international law and relations, a large and uncontested body of ethical rules would provide an ideal guarantee for the respect of international law (Tomuschat 1995: 129).

An important and interesting question is currently being discussed by philosophers of public and criminal law: whether the states have the right or obligation to protect morals and religious values. Although two theories—perfectionism and moral neutrality—oppose each other on this issue, both perfectionists and moral neutralists believe that some moral and religious values should be protected by states, and some of these scholars insist that even criminal protection is permitted.

Now I will provide an overview of the Islamic character of the Iranian legal system. In Iran, not only after the Islamic Revolution of 1979, but also in the era before the Islamic Republic was founded, Islamic values had a strong influence on all aspects of Iranian life. The majority of Muslims consider Islam to be a comprehensive way of life, whose teachings directly or indirectly cover every possible human relationship.