نشریه کتاب نقد
پیاپی 61-62 (زمستان 1390 و بهار 1391)

Siite's jurisprudence, the lasting heritage of the previous jurists, is organized based on some principles and basis which are always responsive for the needs of different societies. Although the jurists have answered the religious matters of the pious during many periods, considering the necessities of the time, but this does not mean religion is restricted to personal matters; rather, as considered by some jurists, the proven principles of jurisprudence lead to its governmental position in order to properly govern the society and reach the material and spiritual felicity. After the victory of the Islamic revolution of Iran and the formation of a political system based on Shiite's jurisprudence, many potential and actual capacities of jurisprudence has been developed; such as the governmental jurisprudence which is based on the jurisprudential school of Imam Khomeini. Having a comprehensive view of the jurisprudence, considering government as the practical philosophy of jurisprudence, presenting the theory of 'Jurist's gurandianship' and emphasizing on the factors of expediency, time and physical location, and the governmental orders, Imam Khomeini proves a range of authority for the jurist during the period of absence. This authority helps the jurist to properly govern the society, based on religious commands and the worldly needs, and have a competent religious system to properly govern the society. Imam Khomeini has in fact expanded and strengthened the position of the governmental jurisprudence in Shiite's jurisprudence.

The theory of 'jurisconsult's absolute guardianship' has been inserted in the constitution of the Islamic Republic of Iran after the victory of the Islamic revolution of Iran and has become a juristic law. Imam Khomeini has explained the concepts of this theory and its rational and narrational bases. An important question posed regarding the concept of 'the absolute guardianship' is its relation with 'lawfulness'. Are they consistent with each other? Is it possible to create a democratic legal order with the theory of jurisconsult's absolute guardianship? This article will research for an answer to this important question.

All jurisconsults believe that the jurisconsult has guardianship to some extent. The main question disagreed among the jurisconsults is the restrictions and authorities of the 'jurisconsult's guardianship' during the absence [of infallible Imams]. The theories of two contemporary broadminded and revolutionary jurisconsults in this regard, i.e. Imam Khomeini and the Martyred Sadr, and studied and compared in this article. Observing Imam Khomeini's writings and his practical manner, it is deduced that he has always believed in 'jurisconsult's absolute guardianship' during his scientific and social life; he believes that the jurisconsult is the successor of the Prophet and the Imams (PBUT) in all governmental fields and that there is no difference in the necessity of obeying them and their guardianship and government. On the other hand, it is deduced from the writings of the Martyred Sadr that he believes the jurisconsult per se is the righteous mature authority and the scientific authority in the period of absence and supervises the correct fulfillment of the Divine law and the Islamic rules. It is clear that these two perspectives present two different methods of government. The main difference is that according to Imam Khomeini's view, jurisconsult is the guardian and the ruler and has the highest executive position in the country, while according to the Martyred Sadr's view, jurisconsult has no executive role; the public is responsible of governing and the jurisconsult is responsible of supervising the complete fulfillment of rules and their correspondence with religious rules.

One of the main questions regarding religious government and jurisconsult's guardianship is of its functions, consequences and advantages compared with other political patterns. Despite its importance, this point is unfortunately less noticed. Considering the characteristics of religious government and the conditions and parameters of jurisconsult's guardianship, some of its consequences and functions regarding the management of religious society are researched in this article; and its priority over secular patterns which are separated from religion and spirituality will be clarified.

Along with the theoretical discussions of jurisconsult's guardianship, it is necessary to research the actual effects and consequences of the establishment of the Islamic Republic of Iran and more specifically, the important roles of the guardian –as a leader – in the full-scale development of the country. Mentioning the deep philosophy of this wise Divine command, i.e. the jurisconsult's guardianship, this article will present a comprehensive frame, in twelve parts, which will explain the functions of the guardian. The main topic of this article is focused on the functions of the jurisconsult's guardianship for religion and religious foundations and institutions. This article will examine the actual effects of having a guardian – as a leader – on the structure of the real Islam, preventing from misuse of religion, preventing from a nationalized religion, revival of religious slogans and symbols, settlement of Hawzah and the institutions of the clergymen, preserving the independence of Hawzah, reinforcing the relationship between the different sections of society with the clergymen, establishment and reinforcement of religious constitutions and extension of religious constructions. Then some of the existing challenges and faults are studied and some solutions are presented to increase the system's efficiency and reinforce the religious bases of the society.

Although the theory of jurisconsult's guardianship is revived by the establisher of the Islamic Republic of Iran, Imam Khomeini, but is rooted in the sayings and practical deeds of the infallible Prophet and Imams (PBUT). Although the bases and functions of jurisconsult's guardianship are mostly investigated by the pros and cons, but due to the new questions and doubts posed, it is still necessary to research this theory. Thus Ketab Naqd quarterly has provided a session on this subject at the anniversary of Imam Khomeini's decease. One of the characteristics of this session was the variety of discussions mentioned; such as: Quranic, theological and juristic bases of jurisconsult's guardianship: the discussion of jurisconsult's guardianship is more theological rather than juristic. Similar to the Prophet and Imam's guardianship (PBUT), jurisconsult's guardianship is also connected to God's guardianship and is the requirement of God's wisdom. Government is legitimized for others only by God's permission. The validity of this theory is based on accepting the maximal domain of religion of Islam. The functions and efficiency of jurisconsult's guardianship may be investigated from various perspectives; from the political-sociological perspective the specific functions of jurisconsult's guardianship are: the sociological coherence of the religious society, preventing arbitrary processes in the Shiite society, passing great crisis with low expenses, protecting the borders of the Islamic country, and a factor to remove the obstacles of the country's development; from the juristic perspective the functions are: legitimizing the political system, affirmation and performanceof legal social and political commands, maintaining the great goals of religion in politics, and practicing the major strategies of religion.