فهرست مطالب mohammad javad arasta

One of the country's most pressing problems is the inattention of state institutions - especially the executive and legislative branches – to the “sound implementation of the general policies of the system" as promulgated by the Grand Leader. This issue can, in the long run, disrupt the stability of the system and the ability of the Leader to discharge his functions and to ‘ensure that institutions do not deviate from their original Islamic duties’. The present research, based on a descriptive-analytical approach, seeks to find out how the legal sanctions of the “general policies of the system” can be strengthened through constitutional-law capacities. Since it is imperative for the general policies of the system to be implemented by the three branches and the public institutions, the most important factor for their realization is to use a variety of efficient and effective sanctions. In this context, some legal and political sanctions that can be proposed in the face of the neglect of the ability to properly implement policies will be stated.

One of the important issues in religious governance is the issue of obliging citizens to observe religious law by the Islamic State. As a result, there are many different perspectives on this issue. Among them is a view that considers the obligation of citizens to religious law to be the duty of the Islamic State. This view, just as it considers the Islamic government responsible for the welfare of the citizens, and its duty to ensure the welfare of the citizens, also considers the Islamic government responsible for the religious law of the citizens, and considers its efforts to implement the religious law in society in the best possible way. In order to prove that the Islamic government is responsible for the religious law of the citizens, many arguments have been presented, among which, citing the arguments of the necessity of enjoining what is good and forbidding what is evil. In this article, based on Shiite epistemological sources, this citation, and the drawbacks proposed about it, have been examined, and according to the evidence of the command to the good and the prohibition of the bad, the scope of the Islamic government's intervention in obliging citizens to religious law has been explained. Is.

The constitution of many Islamic countries, including Iran, requires that all laws be based on Islamic rules. To comply with Islamic rules, religious sources and fatwa [religious decree] of religious scholars should be followed. The question, therefore, is which fatwa is the criterion by which legislative compliance with Sharia [Islamic law] can be achieved? Several theories have been expressed, such as the most knowledgeable scholar’s fatwa, the most famous fatwa, valiye amr [supreme leader]’s fatwa, and the most effective fatwa. This paper presents an alternative view, namely the theory of choice of fatwa for legislation. According to this theory, compliance with Sharia can be achieved by using any fatwa so long as it is issued by Shi'a jurists. Thus, enacting laws according to the fatwas of the mujtahids [Islamic jurists] will secure compliance with the Sharia. Based on this thesis, it is not necessary to enact laws according to the fatwa of the most knowledgeable scholar, or the most efficient or famous fatwa. Supporters of this theory are such prominent figures as Muhaqiq Naraqi and Sahib Javahir. In this research, the arguments for this theory have been stated and its problems have been resolved as much as possible. The adoption of this theory will offer a choice of fatwa in the legislative process, as well as a choice of fatwa by the judge in cases of non liquet. A law or judicial decision is considered to be contrary to Sharia when it is inconsistent with the consensus opinion of Shia scholars. The research method in this study is descriptive-analytical.

In recent years, Iran’s political system has faced different challenges, such as conflicts between the government and the parliament, disagreements between the supreme leader and the president, etc. Some experts believe that most of these problems will be solved if the political regime changes to the parliamentary model. This research, which is done in a Descriptive-Analytical method, seeks to answer the question that what is the supreme leader’s role in a parliamentary regime, considering this regime’s requirements in Iran’s constitutional law. The parliamentary regime seems to have benefits, such as the optimal system for more complete implementation of authorities of the Vali e Faqih. But parliamentary regime’s implementation will also face challenges such as weakening the sense of public participation in government administration. Although the parliamentary regime may seem more coordinated by Velayat e Faqih’s position theoretically, but to implement it in the country, its necessary requirements must be provided first. Otherwise, the regime’s change into a parliamentary system will not only be worthless, but it may also cause more disadvantages.

Every government is based on the law, and the law in the Islamic government is based on the rules of Sharia. The necessity of non-contradiction of the resolutions of the Legislative Assembly with the Sharia rules has been mentioned in the constitution since the time of the Persian Constitutional Revolution and various principles of the constitution of the Islamic Republic have emphasized this issue. Now we have to examine which fatwa is the criterion for measuring laws and resolutions according to Islamic rules? Which fatwa has the Guardian Council set as a criterion in the current situation? The Guardian Council is responsible for assessing laws in accordance with Islamic law and rules. What is the desired situation in determining the standard fatwa and how can this situation be achieved? Basically, what are the characteristics of a standard fatwa? In this article, the author has tried to answer these questions, by examining the possibilities that can be raised about the standard fatwa, to explain the efficient fatwa as a superior theory.

One of the foundations of the Islamic government is the legitimacy of its laws and legal system. The governing laws in society are legitimate as long as they have no least inconsistency or contradiction with the religious prescripts (laws) and the Muslim jurists are those who deduce the religious prescripts from legal evidence and issue them in the form of jurisprudential fatwas. Therefore, a law is legal when it does not contradict with the judicial decrees(fatwas). However, the judicial decrees of the Muslim jurists as regards to a single subject-matter can be different. Now the question arises as to which of these judicial decrees can be a standard or criterion in legislation. Drawing upon the descriptive-analytic method, this article holds the view that many possibilities in the realm of the standard judicial decrees may fall into the state of confusion in such a way that scholars have put the individualistic jurisprudence the subject of their discussion while according to the thesis raised in this essay, the society-based jurisprudence should constitute the basis for the recognition of a standard judicial decree. In this connection, this article seeks to introduce the society-based jurisprudence as the main context for deducing standard judicial decree. It also makes mention of this issue that no judicial decree can be set as a criterion for legislation and that the judicial decree can be a standard one when it is derived from the society-based jurisprudence and can thus be characterized as being consistent with other judicial decrees, being able to resolve the problems and being in correspondence with the objectives of the Law (shariÝah).

In the view of Islam, human being - Muslim or non-Muslim- has a dignity that entitles him/her some rights. It has been bestowed by God to all human beings. Although every human may make erroneous choices that bring him/ her out of the limits of humanity and the merits of the dignity that God has bestowed him, only God can decide on the decline of the dignity. Even deserving the most sever punishments does not denote the decline of human dignity and the elimination of the rights thereto. The present article explains several traditional evidences that prove the non-Muslim human dignity in Islam. If human dignity can be proved as a jurisprudential rule, the contradiction of some jurisprudential rules or Quranic exegeses to that can serve to solve this problem. The assumption that human dignity in Islam is more limited than that in the modern human right, drives from the comparison between this kind of dignity and the ideals of the modern human rights - but not its realities. It seems that Islam introduces a more stable basis for identifying human dignity and supporting human rights.

The structure of the government of different societies, while existing differences, have the same functional but different qualities, and in order to resolve the problems, the relations between the institutions of the state must have a good mechanism. Since the Viable Systems Model provide a tool for designing and diagnosis the structure of systems, this study aimed to identify the structure of the government and then diagnosis this structure.The goal is to investigate the current Government structure from a systemic view, and using a scientific method followed by the application of the Viable Systems Model framework and the Jackson's three-stage method. The structural elements , the duties and relationships between them are identified and diagnosed.After reviewing and comparing the structure of the structure, this structure detected partially Viable.

The issue of the human rights is considered as a means of assessing and valuing man in the 21st century to the extend that due to the expansion of its legal dimensions towards politics, security and sovereignty is about to become a norm and standard in governing an unjust standard that isolates all types of criterion and understanding, even religious and civilized understandings. The most basic concept behind the contemporary human rights is the human dignity. Conceptual analysis of th human rights based on dignity leads to hidden challenges that have so far not been discussed. While analyzing the identity of human dignity, its status, and the implications of the human rights, this paper examines the critical human rights studies that historically criticize the theoretical foundations, methodology, value creation, legal normalization, functions and the human rights in the current world. The function of the conceptual analysis, is recognizing the network of knowledge and making a functional alignment between the common human rights literature of Islam and Christianity.

Meaning the disclosure and availability of information for investigation and monitoring, transparency is one of the key issues in macro governance discussions and reform of public administration. From the viewpoint of Islamic political thought, religious democracy is not based on the raw and unconscious ideas of the people, but on the essence of the people’s consciousness, and as a trustee of the people, the task of the Islamic governor is to share the issues of society with the people transparently and clearly. The authors try to answer the question of how is Islam’s approach to the issue of transparency. This paper is based on the assumption that the transparency of the Islamic government is one of the topics of interest in religious teachings, so that the tradition and living way of the innocents (holy persons) also affirm it and its many principles have been emphasized effects throughout Islam.

Generally, regulating institutions' civil responsibility theory is a completely new idea and until the first half of 19th century, different countries' regulations had inhibited government officials from compensating those damages cause by government to individuals. They considered this lack of accountability as the rational result of government's governing principle. In fact, their belief was that absolute governing principle contradicts with compensating damages by him; however, with evolution of legal thoughts, the lawyers considered lack of civil accountability to be inconsistent with justice and fairness. Nowadays, nearly all countries have accepted public and regular bodies' civil responsibility.
In our country, we may see that hastily-written and unprofessional laws will lead to some social and economic anomalies. Even, sometimes it may lead in attenuation of social crises such as pessimism and dissatisfaction toward the maxim of system and government's rationality, weakening and reduction of the spirit for gaining reasonable profits and a feeling of hopelessness among some group of people.
This study is an attempt to investigate government's civil responsibility with regard to legislation from a jurisprudence perspective and based on the accepted standards by Ahl-Al-Bayt's jurisprudence, considering issues such as rule, reason, and its documents and the possible conflicts with other rules and the possibility of matching rules with other topics similar to Fatwa. Accordingly, we should respond that whether the legislative body can be considered as unaccountable because of the guardianship that they possess. Or whether can we consider him as unaccountable considering the rules of goodness. Can we consider the legislative authority to be accountable for the damages based on the rules existing with regard to accountability rules? Is it possible to adapt this rule upon jurisconsult's fatwas and the regulations enacted in parliament within Islamic governance system as well as The Guardian Council and leader's government decrees.

Parliamentary immunity of MPs has been accepted in laws of most countries. This immunity is manifested in two ways: One way is “lack of responsibility”, meaning that parliament member can freely express his idea as he fulfils his duty of representation and he is not prosecuted and seized because of it. Another way is “nonoffensiveness”, meaning that if an MP commits a crime, he may be sued by permission and approval of parliament. In the post-revolution Iran, majority of members of Assembly of Elites of the Constitution opposed the principle of “non-offensiveness”, calling it against principle of “all are equal in the eyes of law” and inconsistent with “Rules of Islam”. Thus, “lack of responsibility” of MPs was only reflected in the principle 86 of the Constitution. Jurists disagree over limits of “lack of responsibility”. Some hold that lack of responsibility excludes crimes. Council of Guardians has approved the recent idea in its interpretative idea. Some others believe that “lack of responsibility” includes crimes that are committed in line with fulfilling representational duties. This article has accepted the latter idea as regards to rule of subject-order proportion.

Civil disobedience is an issue that attention has seriously been paid to and its scope has been discussed in recent years. In Iran, it is regarded as a new concern as well. Correspondingly, there have not been any significant studies in this respect. The theoretical weakness in this area resulted in conducting a more precise and comprehensive study aimed at developing the public law literature in this regard. Accordingly, the present article seeks to answer this question: What position does civil disobedience maintain in the Shiite political jurisprudence, and the domestic and international legal system? In order to elucidate these viewpoints, we have employed a descriptive-analytic method. Investigating the international legal order, it was indicated that these sources have provided some requirements for the states in codification of law and decision-making. That is to say, they oblige the states to respect the recognized rights of citizens and hold citizens obliged to obey the government which has fulfilled its duties. Furthermore, through providing various reasons, it was proved that according to Shiite political jurisprudence, criticizing and pointing out the mistakes committed by the government are regarded as not only a right but also a duty for the citizens and, under certain circumstances, this criticism can take place in form of civil disobedience. In the system of Islamic Republic of Iran, as well, by way of observing certain standards, civil disobedience can be considered as one of the aspects of the Article 8 of the Constitution.

Consultation in management of affairs which is recommended by rational people, means enjoying the viewpoints of others in taking a decision that is closer to an appropriate one. There is no doubt that consultation is useful, but whether consultation is obligatory for the Islamic ruler who has religious and legal prerogatives is under investigation.
The advocates and opponents of the necessity of consultation have relied on textual (the Book and Tradition) and non-textual reasons to support their arguments. The present paper is an attempt to study the rational reasons for the necessity of consultation in governmental decision-making. The findings of this paper indicate that the ruler is bound to follow the viewpoints of the advisors after consultation when their viewpoints qualitatively and quantitatively override his own viewpoints. This is a different understanding of the Holy Quran’s verse on consultation. Consultation in the government system is in contrast with religious dictatorship, referred to by Allamah Naini.

Transparency is a topic to reinforce the relations between the governorship and people, a fundamental motion to improve the politics and is one of the main component of good governance. From the different principles of good governance, transparency is the main element to reach to this theory that is planning and strengthening the rest of principles by itself. transparency and awareness of people from what happens at the government is not a topic just belongs to the modern communities , but also at the religious reflection have been pointed to the sense and concept of transparency and the Islamic leaderships traditions assisted to the element and lack of curtain at their relations with the society. The principle of transparency has the deep theoretical cover and basis and different schools, it has different basis. At the same time that Islam emphasis on the principles of transparency, it has the specific view about the elements that have concordance with the theory of good governance at the different cases and rarely has contradiction.

Any theory about sovereignty is based on rules and principles which determine the foundations of that theory in different areas. Amongst them, the theory of Islam about sovereignty is based on revealed foundations which can be derived from the Book, Sunnah, and the reason. One of the most important basics of Islamic view on sovereignty is the principle of mercy which has been less considered as a principle and rule and its social aspects as well as its effects on political jurisprudence and public law has been rarely considered. Explaining the contents of the principle of mercy and its arguments, the present article tries to use the Holy Quran to discuss the central position of this principle on the interaction between God and His creatures and to draws out the necessity of observing the principle by the Muslim rulers in different areas of legislation, administration, and judgment. Next, referring to the principle which is running inside the different layers of religious government and even the relationship of the different classes of people with each other, it reviews its jurisprudential and legal effects.

Security and especially political security in all modern societies, is considered as one of the main factors of the fundamental rights of individuals and has taken the essence of the human rights. Taking this importance into account, this paper seeks to reconsider political security and its most important element as the referent of security in teachings of Shiite political Fiqh. First, standards and criteria for identifying the referent of security after briefly explaining the status of the issue in security studies. Political security has three standards of "the right to adopt and express any political opinion", "the right to be elected to a political office" and "the right to elect officials and political authorities". Then we study the "referent of political security" by considering the most important issue in political Fiqh. "The right to adopt and express political opinions" is the most important proposition in political security of individuals in Imami Fiqh in that it encompasses other political rights and freedoms.

In any political system, recognition of constitutional keywords is an important pathway for understanding constitutional system desirably. The recognition matters increasingly, when a keyword is rooted in constitutional system's ideological bases and its underlying political theory. Ummah, a term with religious and Islamic theme, has come from religious literature into the constitution of Islamic Republic of Iran.Studying dimensions of constitutional system of Islamic Republic implies/indicates that this term, while keeping its religious originality, has come into literature of the constitution with some evolutions in concept and scope of inclusiveness in some uses. In this paper through a descriptive and analytical method, we have considered the question that how Ummah is understood in religious thought and the constitutional system of Islamic Republic and what range it has, and have concluded that this keyword in its different applications in the constitution, despite some similarities, has not been applied in the same meaning, but endures various meanings and subsequently includes different demographic groups.

The necessity of raising the matter of political supervision on power being of fundamental function in the control of government’s power is the issue which can not be ignored. This matter particularly in Islam and political-social thoughts of Imam Ali PBUH has been profoundly focused and it is of high importance. Relying on the instructions of Imam Ali PBUH in regard with the political thought, this writing claims that the clarification of strategies, the doctrine of government, the design of the information system as well as the evaluation of the agents’ act are deemed to be the obvious phases of political supervision in Alawit thought.