زمينه هاي پذيرش رويكردي جامعه شناختي در حقوق اسلامي

THE ORIGINS OF ACCEPTANCE OF A SOCIOLOGICAL APPROACH IN ISLAMIC JURISPRUDENCE

The main question of this essay is that: can we recognize a significant and specified place for sociological jurisprudence? With presenting the sociological debates in Iran, a question has become seriously considerable that to what extent the will of people (society) can dffect on the creation and development of legal rules and institutions, and can it be legally valid? The answer can specify the future developments of Iranian legal system and it can explain many previous events. Of course, we should achieve the goal through a long and difficult scientific effort, not with an ambiguos normative command, but with analysis of legal theoretical foundations step by step, to obtaining an obvious, understandable and enforceable paradigm in Iranian legal sysytem. This essay has taking steps in this bumpy, compulsory and non-returnable path and seeking to achieve the answer to the question that: can we have a sociological approach to law (that is to say: socio-legal approach) in Iranian legal ʹsystem, and in praticular, in Islamic jurisprudence? After an overview of Islamic theology (ʹilm-al-kalam), Islamic legal methodology (ʹilm-al-osul), philosophy of Islamic law and Islamic law (ʹilm-al-fiqh), we concluded that the acceptance of a sociological approach to law, with a special legal epistemology, is theoretically possible. This approach generally recognizes the relationship between law and society, the developmental transformation of law and society, the place of extra-legal factors, regarding law as a pragmatic instrument used to guide, manage and order social interactions, the social structure or the both; even though this approach has not ignored the realm of absolute values that control and direct the main orientations of legal system to the justice.