مجله فقه حکومتی
پیاپی 4 (پاییز و زمستان 1396)

Allameh Sheikh Muhammad Hossein Kashef al-Ghata, a prominent scholar of his time, was unique in sociopolitical dimension. The subject of this article is recognition of his personality and political thought. One of the ways of recognizing Kashef al-Ghata’s personality and thoughts is studying his position in the opinion of his contemporary scholars, and another way is reviewing his works. The two mentioned ways, briefly described in this article, will show only some part of his political personality and thoughts. His different outlook and approach to politics as compared with the current attitude of the time is focused on in the present study. In Kashef al-Ghata’s viewpoint, religion and politics are inextricably linked, and power and government, as the most important issue in political sciences, have different philosophies with this category in the world of politics. According to his view “justice” is the philosophy of government and it enjoys a “transreligional” and “transnational” value through which the oppressed people reach their rights and security in society is guaranteed. He believes that nothing is there to promote a government but the justice, and nothing is there to overthrow a government but the injustice.

The formation of an Islamic government is not possible but with the presence and preparation of the requirements for it by the people. The first step in providing the groundwork is to identify Islamic from non-Islamic governments, so that a Muslim recognize appropriately his or her duty in confrontation or interaction with each of the two types of governments. Therefore, in the first place, it is necessary to identify the distinguishing feature or index of Islamic and non-Islamic governments. In the next step, non-Islamic governments should be examined in the context of the fiqhi literature and also hokm-e taklifi3 of the people in relation to and engagement with non-Islamic governments should be discussed. It seems that the legitimacy factor in the exercising political power by the government is the main indicator of recognizing Islamic governments from non-Islamic governments. After distinguishing between these two types of governments, fuqaha4 have ordered Muslims not to accept the sovereignty of non-Islamic governments, and since the existence of government is necessary at all times, it will be obligatory for Muslim ummah to confront the non-Islamic government in order to form an Islamic state, undeniably, if conditions are right. Yet, such an approach must be seen and analyzed in different ways. Obviously, toil and hardship, damage, or other secondary issues may, in the field of operation and enforcement, make this initial judgment subject to change.

The precise clarification of the basis of the legitimacy of the Islamic state has a significant role in showing the rational, human and natural face of Islam. In theological investigation, the issue of legitimacy of the state, which bears determinative juridical (fiqhi) and legal effects, two actions from among the God’s actions are dealt with. On the one hand, God has created a wise, free and civil-by-nature human who will be responsible for his own actions in the hereafter. On the other hand, through guiding him with the help of His prophets and religions, God has obligated human to obey the messengers and owliya3 appointed by Him. This paper, utilizing descriptive-analytic method, seeks to answer the question that how the two above mentioned factors (human creation with the above mentioned attributes, along with the appointment of the wali) as two divine actions impact on explaining the theoretical foundations of legitimacy in Shiite political thought. From the viewpoint of this paper, through proper analysis of the acts of God in the field of takwin1 and tashri’2 the realization of popular acceptance for the establishment of a religious government is a necessary issue whose denial is equal to the attainment of a violation of the will of the Lord. With this argument, the infallible ruler (AS) does not force people to accept religious government if such acceptance is contrary to the people’s consent.

The present research mainly focuses on and explains the nature of the madhaq of share’6. For the term madhaq of share’ different meanings are presented, but it is evident that the correct meaning of a term or concept must be traced back in its context of discovery and its origin place, which is here an attribute of the type of “religious school” and “sharia law”. Now, if we consider the Shar’ as a device designed by the Share’ to provide the happiness of mankind in this world and the world after, due to our inability to truly understanding of the events, a faqih or Islamic jurisprudent after doing abundant research and reaching the power of ijtihad, with the help of religious reasoning will come to a system of Shari’a in his mind. The law comes. This mental structure is the very madhaq and system of shari’a which, after being conceived in the mind of the faqih, directs him in all his arguments, and as a yard scale, it gives him the power to assess and evaluate different reasons and consequently the power to find a ruling especially where there is a nonexistence or scarcity of the related text or literature.

One of the most important events in the political history of the early Islam is the issue of caliphate and succession of the Prophet of Islam (SAAS), for despite the clear emphasis of the Prophet (SAAS) on Imamate and the succession of Imam Ali (AS) to the Prophet, unfortunately, this did not happen. The council formed in Saqifa grabbed the right [of being successor to the Prophet] from Imam Ali (AS) and deprived the newly-established religion of Islam and also the Islamic community of Imam Ali’s guidance and leadership. But the noticing point in this event is the way Imam Ali (AS) behaved towards this dangerous schematization and abjuration, which indicates the great patience and religiopolitical expediency of Imam Ali (AS). The type of confrontation that Imam Ali (AS) selects against the mentioned conspiracy wherein his right was violated is based on the attention paid to the interests of Islam and Muslims and the emphasis on Islamic convergence. Avoiding armed conflict and other provocative methods, Imam Ali (AS) laid the foundation for relative cooperation and even on many occasions gave strategic advice to the three caliphs, but at the same time refused to accept any position, or leadership within their governments. It should be however noted that Imam Ali (AS) has always emphasized his right and acted toward the enlightenment of people in this matter. Eventually, he accepted the caliphate of Muslims when he faced the people’s real request and insistence on his caliphate.

The status of the novel category of “the general policies of the system” and its impact on the field of legislation in general, and in the realm of family in particular, in the system of the legal system of our country has many underresearched dimensions and implications. In this paper, based on the legal methodology, first, the general lines and the central issues of “the general policies of the system” have been monitored as an emerging subject in the constitutional law system of the country. Then, based on an unbiased approach, in relation to the aforementioned axes, the latest general policy announcement introduced in Shahrivar 1395 (September 2016) until the writing of the present text (July 1397), which refers to the “family” is discussed, and the effect of “the general family policies”, especially on the process of legislation in the Islamic Consultative Assembly in the category of the family has been reviewed since the date of the mentioned announcement. Additionally, with reference to several laws passed by the Islamic Consultative Assembly, the degree of conformity of the Assembly approvals to the general family policies has been discussed through taking advantages of two approaches: “adaptation” and noncontradiction. In order to clarify the guarantee of the implementation of the policies mentioned, It was concluded that the implementation of these policies, with a fairly specific mechanism, is monitored and reported by The Expediency Discernment Council of the System and is enforced by the Guardian Council in pursuance of the Council’s innate supervision of the Assembly’s approvals. This is while, so far, this important issue, i.e. the topic of family has been done with an inactive approach and within the framework of the recognition of “noncontradiction” rather than that of “conformity”.