The Feasibility of Delegating the Guardian Council’s Jurisprudential Determination in the Sharia Review of Regulations

This study examines the jurisprudential permissibility of delegating the jurisprudential opinions of the jurist members of the Guardian Council in the exercise of Sharia supervision over legislation. The central question is whether the Council’s Sharia supervisory function is intrinsically vested in the person of its jurist members or whether certain stages of the process of formulating and drafting their opinions may be entrusted to a specialized institution.
The study first elucidates the nature of the Sharia supervisory function exercised by the Council’s jurists within three distinct domains: iftāʾ (jurisprudential verdicts), qaḍāʾ (adjudication), and governance. It then evaluates the scope of permissible delegation within each domain, distinguishing among the identification and analysis of legal subject matters (mawḍūʿ-shināsī), the preparation and formulation of a proposed opinion, and its final approval.
The findings indicate that, in the domain of iftāʾ, the opinion of another mujtahid cannot substitute for the personal exercise of ijtihād and independent verification by a jurist member of the Guardian Council. Nevertheless, the delegation of subject-matter identification and analysis (mawḍūʿ-shināsī), the collection and examination of legal proofs and evidence, and the preparation of a reasoned proposed jurisprudential opinion are defensible, provided that the review and explicit approval of the majority of the Council’s jurist members are retained.
In the domain of qaḍāʾ (adjudication), the discussion by the author of Manāhil concerning the authorization of a non-mujtahid to adjudicate on the basis of the fatwa of a living mujtahid addresses a specific situation in which no qualified mujtahid judge is available and the prevention of the suspension of rights and the emergence of social disorder is necessary. This discussion should not, therefore, be construed as evidence for the permissibility of a mujtahid’s reliance on another jurist’s opinion in the exercise of iftāʾ.
In the domain of governance, the establishment of a “Specialized Jurisprudential Court for the Sharia Review of Legislation” constitutes a form of institutional organization for the fulfillment of the duty prescribed under Article 4 of the Constitution, rather than a transfer of the final authority vested in the Guardian Council under Articles 4 and 96.
To operationalize this conclusion, the study proposes draft provisions for incorporation into the Internal Regulations of the Guardian Council. Under these proposed provisions, the specialized court may formulate and prepare a proposed jurisprudential opinion; however, such an opinion acquires legal effect and is legally attributable to the jurist members of the Guardian Council only upon its explicit approval by a majority of them.