Constitutionalism and Different Viewpoints of the Religious Jurists on the Concept of Representation

To establish its foundations, the Iranian constitutionalism of 1906 had to create new concepts in the system of legal thought in Iran. These concepts had to clarify their relations with their similar and relative concepts. The relativeness of the concept of “representation” with such concepts as Vekalat and Velayat in the heritage of the religious jurisprudence was one of the issues for which the constitutionalism’s thought had to produce a response. With the introduction of the concept of representation, different views were presented with respect to its relation with other legal concepts and concepts of religious jurisprudence and a conflict of views was emerged among religious jurists concerning the concept of representation. In this paper, the viewpoints of the Najaf Seminary’s religious jurists concerning the concept of representation are explained. It will be demonstrated that the concepts of the religious jurisprudence have played an essential role in the creation of the constitutionalism’s thought. Also this paper explains what was the understanding of Akhond-e Khorasani and Naini about this concept in comparison with Fazlollah Nouri’s understanding of this concept. It also shows how representatives were considered among Muslim wise people and trustees of true believers in the thought of the Najaf Seminary’s religious jurists in order to delegate powers related to customary matters and probate affairs to them. Khorasani and his domain of thought in understanding the concept of representation has gone beyond the understanding of this concept by other religious jurists. This is because he considers that the responsibility of managing all affairs of the country belongs independently and originally to the nation itself. He, in fact, considers the nation as the sole responsible body concerning these affairs (or in other words the owner of these affairs). In his view, it is the nation which can delegate this right and responsibility (or this ownership) to their representatives in the period defined.