نشریه حکومت اسلامی
سال هجدهم شماره 1 (پیاپی 67، بهار 1392)

Abiding by positive laws and making a legal analysis of them is among the basic issues of the philosophy of law. Legalism has for long been the special concern of scholars of law. In Islamic fiqh, the necessity of abiding by religious laws is among the duties which can be realized in the context of perceptions of practical mind. Nevertheless, there are no cleardiscussions about the changing and positive laws of a g0vernment and this is justified by the non-existence of a legitimate Islamic government throughout history. Referring to the different views about the guardianship of Muslim jurist, the present article discusses the effects of each of them on the necessity of obeying the laws laid by government in the sacred Islamic government. Taking into account the belief in the absolute guardianship of Muslim jurist, it can be concluded that the obedience is a religious obligation, but if another view is adopted, the necessity of obedience cannot be established in all cases. The article points to the role of allegiance in recognizing the necessity.

In order to evaluate political theories, one of the contributing factor that has to be taken into account is the way in which a theory is confronted with common interests. The concept of common interests is one of the components thatcan be taken into consideration in assessing the capacity of political theories in terms of political efficiency.The emphasis and views of the political philosophers on this issue are a case in point. Common interest is a question in political philosophy that has been for long a major concern of scholars and researchers and nowadays is considered as one of the chief questions in political philosophy. This concept is also used within the context of political activity as a very important index in evaluating the functions of various groups that are in one way or other concerned with politics. How common interests as one of the middle aims of Islamic government are safeguarded is a major concern of those who theorize on the concept of the guardianship of Muslim jurist and those who makes research on the political thought of Islam. Referring to the works of Imam Khomeini, AllamehTabatabai, Shahid Sadr and Ayatollah Mesbah Yazdi and of the other theorists on the issue in question bear evidence to this fact this issue is of utmost importance. However, in spite of all these emphases and rigorous viewpoints on this important question, much has to be done to show that there are mechanisms whereby these emphases can come to fruition. To alleviate these concerns, it seems necessary to look at the existing mechanisms in the theory of the guardianship of Muslim jurist.

In addition to government’s responsibility of running the general and ordinary governmental affairs in the economic, political, and administrative fields, it is responsible for supervising to what extent moral values are dominant in society and the use of the influential tools which contribute to preserve and raise the degree of individuals’ royalty to moral norms. Being attached to religion, which consist of moral standards as one of the most important elements of the divine teachings, religious government has a more fundamental duty in this concern. The three-decade experience of the Islamic Republic of Iran has contributed to examining the problems and injuries of a religious government while it is concerned with the moral guidance of a society. The present article deals with the theoretical and practical aspect of this basic issue.

Political obligation implying that citizens are morally obliged to comply with laws in general and obey the laws of the government under which they live in particular,for they are considered as members of a political society,is justified, explained, and analyzed on distinctive theoretical foundations. The theories of political obligation can be classified under two categories: theories that reject or negate political obligation and those that affirm political obligation. Anarchic theories and analytical philosophy maintain that there is no political obligation whatsoever and those who advocate the theories based on voluntarism, deontology, and teleology are the three mainstream theories that affirm political obligation. The latter groups have taken different approaches to the issue in question. This article seeks to take into account the criticisms and observations levelled against each of the theories on political obligation.

Articles 4, 72, 91, 94, and 96 of the Constitution make explicit the sources of the rules and regulations which are governing the Islamic Republic of Iran with regard to the necessity of their being based on Islamic law. In these articles, however, different terms and expressions are used. According to the article 4 of the Constitution, all the ‘laws and regulations have to be based on Islamic criteria’, whereas according to the article 96 of the Constitution, the idea that Islamic law supervises the rules and regulations is expressed by using the expression“compatibility of the legislation [passed by the Islamic Consultative Assembly] with the laws of Islam”. Some jurists think that the aforementioned expressions used in the Constitution do not correspond to one another. Other jurists see that the expressions‘Islamic criteria’ and ‘laws of Islam’ are general concepts and hence inaccurate. Therefore, a probing look at the meaning of the already mentioned expressions shows that the application of these two expressions‘Islamic criteria’ and ‘laws of Islam’ which seem to be different, convey the same idea and come to the same result and so no trace of incongruityor inconsistency can be detected in the articles of the Constitution.

Having adopted an approach based on human rights, one can say that there is no minority in a Islam in a strict sense, for all human beings are equal from human perspective and enjoy the same right to have fundamental human rights. Thus, the issue of religious minorities as the only minorities observed in the Islamic law is taken into account under the questions related to the rights of citizens rather than human rights. It is noteworthy, of course, that this study does not deal with the issue of minorities only in view of Islamic law. Rather, in all legal discussions raised in the modern world, there lies an issue of rights of minorities under the rights of citizens. Basing the abovementioned statements as its assumption, the present article, while putting emphasis on the freedom and rights of minorities in Islam, maintains that there is essentially positive discrimination of some kind in Islam and Iran as far as religious minorities are concerned.

Over the last decades, especially after the Islamic Revolution of Iran gained victory, westerners have taken anti-Islam attitude seeking to suggest the idea that Islam is inconsistent with the rules and norms of the contemporary modern society and there seems to be no common ground for Muslims and the followers of the other living religions of the world to have a peaceful coexistence. The coexistence of Muslims with the followers of the other religions within a particular society and internationally is worth studying, but the most controversial case is when a community of non-Muslims is living in an Islamic society under an Islamic government. Under such circumstances, does Islam act in Muslims’ interests and against the interests of the followers of other religions or recognize their presence and grant them rights to have a social life? To answer the above question, the present article, adopting a descriptive and analytical approach and drawing upon Islamic sources, i.e. the Qur’an and the traditions of the infallible Imams (may peace be upon them), tries to deal with the subject in question. To do this, it first to give a definition for the concept of ‘non-Muslim citizens’ and then enumerates the rights and duties that they have under an Islamic government. The rights of non- Muslims falling under such titles as ‘human dignity’, all-out immunity’, ‘religious freedom’, legislative rights’, and ‘freedom of socio-political activities’ have been explained and their duties have been studied under such rubrics as ‘respecting to the laws of Islamic society’, ‘fulfilling the contracts with the Islamic government’, ‘refusing to interact with the enemies of an Islamic state’ and ‘paying tax’. In case the conditions of being a citizen are met, there would be no difference between Muslim citizens and n0n-Muslim citizens in having their own social rights and they are all considered one and the same nation and subjects of the same country who can live together peacefully.