نشریه حکومت اسلامی
سال نوزدهم شماره 4 (پیاپی 74، زمستان 1393)

Legislation is taken to be one of the important issues in public rights. It is of greater importance in an Islamic government due to the role religion plays in it. Thus, it seems necessary to look at this issue from the perspectives of Islamic teachings. ShiÝi kalÁm teachings is a fundamental source in various legal and jurisprudential levels that can be used to study the issue in question. The present research work deals with the ShiÝi kalÁm foundations in relation to the issue of legislation. This research is a product of a study on the works of some contemporary Muslim jurists (faqihs) and mutakallimun (scholars in the field of the Islamic kalÁm) who have dealt with the issues concerning Islamic government. In this connection, some subjects in the Islamic kalÁm such as “God, the Almighty, as the only legislator or law-giver”, “finality of the Divine Law”, “universality of the Divine Law”, “eternity of the Divine Law”, and “comprehensibility of the Divine Law” as the foundations for legislation have been identified and explicated in detail. Finally, to establish the claim that these foundations have their impacts on the jurisprudential and legal discussions on legislation, mentions have been made to some works in this regard.

According to the fiqhi arguments, the guardianship of and the rule over the Muslim community at the time of occultation is entrusted to a qualified Muslim guardian jurist. On the one hand, the legal guardianship is something general and covers all aspects of governmental affairs. On the other hand, given the fact that there are a variety and wide range of governmental affairs, the Muslim guardian jurist alone is not able to directly play his role in taking care of the affairs in the Muslim community and in running the governmental affairs personally. Therefore, as anticipated in the constitutional law of the Islamic Republic of Iran, the Muslim guardian jurist has to entrust part of his duties and authority to some other individuals and groups. Now, the question is that, from the jurisprudential perspective and according to the constitutional law, what is the role and status of the Muslim guardian jurist in selecting and appointing the agents of the Muslim community? Are the agents of the Islamic system necessarily appointed by the Muslim guardian jurist or there is no need for the agents to be appointed by the Muslim guardian jurist? Drawing upon an analytical and descriptive method, this article aims at providing answers to the questions above by making reference to the role infallible Imams play in appointing governmental agents. Then a discussion is raised as to the opinions and views and practical life-style of the faqihs during the history of ShiÝism. This article also seeks to establish the fact that, from the perspective of the constitutional law of the Islamic Republic of Iran, the selection and appointment of the agents in the Islamic system is entrusted to the Muslim guardian jurist and the legal guardianship of the Muslim jurist is extended to include the other governmental structures and executive authorities, and, in this light, their measures and decisions are made legitimate.

Guardianship or authority (wilÁyah) is the most important concept which exerts its greatest impacts on various aspects of our individual, social, ritual, political, legal, juridical, worldly and other-worldly lives. Guardianship is something correlative and can be realized only in the light of the relationships among members of a society. Meanwhile, it is a matter of gradation which can appear in either side in a specific manner in terms of the power and position it has and thus it may bear special and different consequences. Guardianship in religious culture and sources lays the first and sound foundation stone for a political society and because of its depth and wide scope, it covers up all the citizens of a political society in its widest demographical level. Guardianship is a complex reality of various literal and conventional as well as psychological and social aspects which can be a clear manifestation of love and compassion on the one hand, and the great manifestation of social power and integrity on the other. It may also be the most significant mark of expediency and good will for a society and, last but not least, the noblest and most obvious manifestation of act of worship and theism and/or the most outstanding form of arrogance, selfishness and will to power. The article aims at explicating various aspect of this term.

People in the state of being rulers are prone to errors and when they rise to power, they will become corrupt politicians. External supervision over the ruling system can minimize rulers’ erroneous and corrupt acts. This rational strategy – which is also consistent with the appointed and absolute authority of the Muslim qualified jurists (faqihs) – has been ratified by the law-giver and recognized by Imam Ali (may peace be upon him) and taken to be a good example of taking care of the Muslims’ affairs. In addition to this, people are recognized by the law-giver to have rights whose enforcement requires people to have rights to supervise their own government. This supervision includes 1) maintaining justice, 2) reprimanding rulers, 3) self-defending, 4) giving advice to the leaders of Muslim communities and order them to enjoin what is right and forbid what is wrong, 5) praising the just rulers and reprimanding the wicked ones, 6) inviting people to disobey orders of rulers in case they order people to commit sins and 7) dismissing rulers from office. Having a truthful look at fiqh, it must be said that all these matters are among the legal rights of people and they are recognized to have the right to supervise their own ruling system.

Given the Islamic teachings, the formation of a government as a constant need of human societies, has been qualified in two respects: first, referring to non-Islamic governments in all respects is subject to prohibition and, second, the formation of a government as one of the divine commands is itself relevant. Therefore, it is incumbent upon all Muslims to pave the ground for the formation of an Islamic government by toppling non-Islamic governments. To fulfill this, it seems necessary to study the strategies facing the Muslim community. Accordingly, the main question of this research is devoted to the study of duties Muslims have to undertake toward the non-Islamic governments. It seems that the major priority in confronting non-Islamic governments is determined in terms of the various stages of enjoining what is right and forbidding what is wrong. In case there is no possibility of toppling non-Islamic governments, interactions among members of the Muslim community for the further implementation of Islamic prescripts in the social arena take on an added importance.

Saudi Arabia, with the centrality of Mecca and Medina as two major loci of divine revelation, constitutes an important part of the world of Islam. However, the fact that to what extent the most important part of the ruling system of this country, i.e., its system of legislation, is based on Islamic doctrines and what role the Divine Law plays in its legislation system is a matter of controversy and has to be fully scrutinized.Constitutional law, as a document with the highest authenticity, in which the power structure of a governmental system is depicted, can be a good criterion for making value judgments. Saudi Arabia introduces its constitution as based on the QurÞÁn and the Sunnah of the Prophet Muhammad. However, the political system of Saudi Arabia is ruled by one person with absolute power (autocracy of some kind) whose legislative authority is granted through appointment and the laws made by the legislative body are enacted after they have been decided on in the last resort by the king in power. Thus, the legislative structure of this country, as it is not fully based on the Islamic Law, except for certain minor personal status or penal code, and, most importantly, due to the lack of an authority as a refining source, is more influenced by legislative systems in western countries than by Islam and the Islamic Law, so that its legislative structure has no deep root in the QurÞÁn and the Islamic Law as expected.

In the political life of the Commander of the Faithful, Imam Ali,(may God’s peace be upon him), one can find certain cases where he has shown flexibility toward observing penal laws in order to preserve and safeguard the Islamic state and its authority. For example, his judges being granted permission to judge in the manner the judges did at the time of the caliphs prior to him, his preservation of some innovations such as nightly prayers in RamaÃÁn (tarÁwih), a twenty-five year co-operation of convenience with the tyranny, etc. That is why some have raised doubts that in such cases Imam Ali (may God’s peace be upon him) has chosen to sacrifice canonic rules for preserving his power and rule. An attempt has been made in this article to explain the legal regulations governing the conduct of the Commander of the Faithful so that his realistic conduct can be analyzed accordingly. In doing so, at first, a jurisprudential framework is given in accordance with the known principles and regulations in fiqh and the Principles (OsÙl) and then an attempt is made to check individual instances of realism in the life-style of the Commander of the Faithful against that framework based on documentary sources. In case we succeed to do this, we have achieved an acceptable standard which can be taken as an appropriate model to follow in our political and governmental procedures and to apply it in governmental policy-making.