Legal Framework in a Religious Republic

Document Type : Research Paper

Authors

1 Assistant Professor, Department of Public and International Law, Faculty of Law and Political Science, University of Shiraz, Shiraz, Iran

2 Assistant Prof, Islamic Azad University, Damavand Branch, Damavand, Iran

10.22099/jls.2024.49195.5083

Abstract

This article seeks to answer the central question of whether legislation is possible in a religious republic and what role law occupies in such a system. In other words, the main question is how, considering the knowledge of hermeneutics, a rational synthesis can be achieved between republicanism and religion within the framework of a religious republic, thereby enabling the possibility of legislation in such a system. The article adopts a normative approach in addressing this question, considering the current political reality of Iran.
The conceptual possibility of a religious republic is only achievable through a specific interpretation of both republicanism and religion. Republicanism, in this context, incorporates elements both in form and content, and is not reducible merely to its formal aspects. This is because republicanism entails substantive values, such as the primacy of social contracts and public consent. Thus, any limitation that undermines these values is unacceptable. For instance, certain substantive constraints on constitutional amendments or the existence of lifelong and unaccountable institutions violate the principle of republicanism.
Religiosity, in turn, requires a particular interpretation of religion, and only within this specific understanding can it be reconciled with republicanism. In this sense, religiosity is interpretative in nature, as understood through hermeneutics, and is confined to universal human values in a minimal interpretation. In this minimalistic view of religion, human rights are respected, ethics is distinguished from law, and religion is acknowledged as a source of universal values such as justice, freedom, and equality. By adhering to these principles, it becomes possible to reconcile republicanism and religiosity.
In this interpretation of religion, it is considered a subject of interpretation, and no interpretation is deemed sacred. Therefore, the possibility of critique, dialogue, and the clash of ideas regarding interpretations of religion is always present, and no individual can sanctify their interpretation. Additionally, following the philosophical shift in hermeneutics initiated by Heidegger, which extended hermeneutics from mere textual interpretation to human existence—suggesting that our being is inherently interpretive—existential hermeneutics emerged. As a result, human beings are inherently interpretive and constantly engaged in the act of interpretation. Thus, the role of the interpreter cannot be ignored, and this facilitates tolerance among diverse interpretations.
In this unique perspective on religion, expectations of religion are minimal. Religiosity is reduced to adherence to universal values shared among all religions and scholars, such as freedom, equality, and justice. However, the methods for achieving these values are entrusted to modern sciences and expertise, and rigidity in methods under the guise of religiosity is unacceptable. Therefore, a religious republic does not mean a government ruled by religious authorities. Since religiosity is merely about emphasizing universal human values, it does not violate public rights and freedoms and recognizes “having rights.” The excuse of “truth” cannot justify the violation of rights belonging to different moral perspectives.
More precisely, a religious republic places rights in a domain “outside of morality,” since morality is confined to universal human values championed by religions.
In the third section of this article, considering the concept of a religious republic based on the aforementioned interpretation of religion, the law undergoes transformation in four dimensions: “the basis of the law,” “the purpose of the law,” “the authority of the law,” and “the interpretation of the law.” This transformation highlights the distinction between a religious republic and both sacred and secular political systems.
The basis of the law is established through reliance on reason as the foundation of legislation, emphasizing rational principles. The purpose of the law is defined, in a non-jurisprudential sense of religion, as creating a free environment to achieve justice. Similar to modern legal systems, the purpose of legislation in a religious republic is to regulate human relations in order to ensure freedom, equality, human rights, human dignity, and, most notably, justice. These values, which transcend religion, are realized through methods that are not fixed or sacred. Methods in a religious republic are contextual and temporal, meaning they may be effective at one time and ineffective at another.
The authority of the law, under a minimal interpretation of religion, is entrusted not to God but to humans, as human life is constantly changing and evolving. Managing the complexities of daily life requires continuous engagement with the realities of individual and collective human existence. Therefore, this responsibility must be undertaken by a conscious entity capable of maintaining a two-way relationship with these realities. As such, the entire society, through its representatives, is deemed the legitimate authority for legislation. In this framework, religiosity is not a condition for representatives, as the domain of legislation pertains to mutable matters, and the religiosity or irreligiosity of society does not influence the functional content of governance.
The interpretation of the law is not limited to specific individuals but is achieved as a convergent interpretation. This involves merging the horizon of the interpreter—who must inevitably consider realities—with all of their mental assumptions and the text from which they strive to uncover meaning. In other words, human legislation becomes possible through the introduction of the “idea of ijtihad” (independent reasoning) and a minimal interpretation of religion.
Thus, the role of reason in the legislative process is recognized. In this system, the law has a rational nature, with the aim of establishing justice, and it is enacted and interpreted by the people’s representatives. Consequently, the holders of power in a religious republic are not confined to religious authorities.
If the law evolves along these four dimensions in a religious republic, it becomes possible to achieve modern legislation within such a framework. A religious republic will not become an ideological system, will not violate the rights and freedoms of minorities, will recognize the “right to have rights,” and will not condition the enjoyment of rights on adherence to a specific moral system. This transformation enables peaceful coexistence among different moral currents in society. Undoubtedly, in this transformation, the meaning of religion will differ from its traditional interpretation, as previously explained.

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Journal of Legal Studies
Volume 16, Issue 4 - Serial Number 54
January 2025
Pages 315-346

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