نشریه حکومت اسلامی
سال بیست و پنجم شماره 1 (پیاپی 95، بهار 1399)

Governmental fiqh (jurisprudence) is defined as an approach in deducing rulings for the ideal administration of the government. This term is distinguished from the term 'political fiqh' which is applied as a particular course of study in jurisprudence in matters related to political issues and 'governmental jurisprudence'. The latter is a particular part of political science concerned with the issues such as the institution of 'government'. Concerning the question of government, the effective and ideal administration in line with the Islamic jurisprudential doctrines has been taken into consideration and the Muslim jurist, faqih, too, makes inferences from religious laws in order to provide the authorities with the means to administrate the affairs of the society in the best manner. This jurisprudential approach, as distinct from the individualistic jurisprudential approach, in terms of making jurisprudential inferences, is characterized as having certain characteristics which do not allow for speaking of governmental jurisprudence, though some of which can be applied in individualistic jurisprudence. Among these characteristics, one can refer to such issues as the 'belief in the comprehensiveness or universality of Islamic religion and its capability to meet the governmental requirements", "its scope extending to cover not only individualistic jurisprudence but also the jurisprudential issues concerned with all citizens in a society, all areas of a country, and those which are needed to run the social affairs ideally, "its possibility of making systematic inferences, considerations of the constants and variables in making inferences, the possibility of transforming jurisprudence into laws and regulations, and the possibility of imposing obligation on legal entity", " having an efficient approach to the administration of people's social affairs and making personal judgements on the basis of the requirements in running a society ideally".

This research aims to find the jurisprudential arguments for the rulings in favor of the necessity of ensuring security in cyberspace in all its aspects by the Islamic government. This research has been conducted on the basis of governmental jurisprudence. Apart from the data gathered from the library sources, this research has been conducted by making use of documentary evidence and the descriptive-exploratory method. Having studied the concepts used in this research and the methodology based on the jurisprudential approach, the numerous jurisprudential statements and laws were taken to be the evidence for rulings in favor of the necessity of ensuring security in cyberspace in all aspects of it by the Islamic government including discretionary penalty determined by the Muslim judge', the unlawfulness of keeping heretical books, penalty for waging war against Allah, intimidation, unlawfulness of misrepresentations (fraud) in buying, selling, etc., the unlawfulness of 'najsh' ( which, in Islamic terminology, refers to a situation in which a person, a mediator, pretending to buy an article, increases its price, not because he wants to purchase it but because he wants to encourage someone else by deception to purchase it; surcharge; unjust dealing; ) unlawfulness of violating people's privacy, extinguishment of liability due to the harm inflicted on someone who intrudes on a person's privacy and the rule of the rejection of infidels' dominance over Muslims. Consequently, the necessity of ensuring religious and doctrinal security, moral security, psychological security, security of saving one's reputation, financial and economic security, security against intruding one's privacy, life security, security of national classified information in cyberspace have been established and according to the governmental jurisprudence approach which is epoch-making, in addition to anegative behaviors of the government, the positive behaviors have been rendered necessary.

In spite of its outstanding wide applications, the concept (کیان اسلام), kiÁn-e IslÁm, has not had a clear historical background and there have been hardly any researches and investigations into its historical development, its main origin and the way it has been used by the ImÁmite (Twelver) jurists. Our recent studies on the concept in question show that the use of the concept in the ImÁmite jurists' oral and written literature has found its expression in these three major concepts: the basis or foundation of Islam, Islamic territory, and, in a combination, the foundation of Islam and Islamic territory. With a glance at the theories, issued decrees (fatwas) and the writings of ImÁmite jurists and the way in which this jurisprudential-political concept has been used by them, it can be said that the majority of the Muslim jurists have taken the concept to mean the foundation of Islam in its absolute sense. However, upon further reflection, and a careful study of the sound arguments, the research results in the conclusion that the general concept of کیان اسلام from the viewpoint of the ImÁmite jurists and by relying on their sound arguments deduced from authentic sources, the concept is in fact a concept comprised of the concepts 'foundation of Islam' and 'Islamic territory' which can have a single or double application as far as its historical background is concerned. The research draws upon a descriptive and library research method.

The analysis of the arguments and principles of each jurisprudential or juridical school of thought, while explaining the strong and weak points of that school of thought, may bring about the development and continuation of the doctrines of that school of thought. Jurisprudential schools of thought and the political systems which are originated in them are not exceptions to the rule. In the meantime, the jurisprudential school of thought of Qum which lays the cornerstone of the political system based on the institution of the guardianship of the Muslim jurist, is of particular importance. This article seeks to explain the question of the primary principle in the field of political authority (guardianship) in the light of arguments and principles. By principle in this context we mean a criterion which the wise men rely on in shaping social association. By reference to the jurisprudential doctrines of the school of thought of Qum, it follows that although the result of the studies on the sources and principles is that human beings have no guardianship and authority over their fellow human beings. However, the primary principle in governmental relations is political guardianship which has been exception to the general rule due to certain reasons such as having the attribute of infallibility or justice in the light of infallibility as the one which finds its expression in the theory of the guardianship of the Muslim jurist. Taking the present condition into account, the jurisprudential schools of thought of Qum have succeeded to follow the course of the pure Alawid school of thought.

Fiqh is a systematic discipline which is used as a means of deducing canonic rules from religious sources for a social life of a person who is subject to legal obligation (mukallaf ). The idea that the discipline of fiqh is of some effects on the social life of people can be studied under two views based on Islamic jurisprudence and principles of Islamic jurisprudence. The first view is widely accepted by the scholars of the Principles of Jurisprudence and is known among them as the dissolutionist theory of legal addresses of the legislator. According to this theory, the particular or singular as well as the general or universal addresses of the legislator can be dissolved or disintegrated into addresses equal to the number of legally obliged people. It seems that this idea is led to individual jurisprudence in terms of its subject and judgement (ruling). In contrast, Imam Khomeini's theory of legal addresses cannot be dissolved or disintegrated into individual or singular addresses in proportion to the number of people subject to legal obligation, but the addresses have remained as general or universal. However, what can be counted as having the real multiplicity or numerous instances is the object of legal addresses. This theory is of many consequences, including the disappearance of the relation between the servant (Ýabd ) and Master (MawlÁ ) in social matters, serving the interests of the human beings in line with requirements of time and place, the legislator's mawlavi's will in relation to the issues of addresses is directed to the will to lay down laws and not to the will to motivate somebody to act on the laws (baÝth), the idea that deducing "power" in fulfilling an obligation is not a stipulation and that all the parties of indefinite knowledge(Ýilm-e ijmÁli ) of obligation are to be involved in thinking whether an obligation is a categorical imperative or not. The writers of the article hold that the theory of legal addresses provides a capacity in the field of governmental and social fiqh which allows for speaking of obligation and the social obligated people.

The Constitution of the Islamic Republic of Iran, being aware of the harms from the political paradigms governing the West; has strongly rejected the modernist left and right wings born out of the illegitimate sovereign, and has assigned the Islamic state to do one of its duties which is to form both a 'proper administrative system' and an 'Islamic system'. Despite this stipulation in the Constitution, except in rare cases, no special mention has been made to the constituent elements and principles governing Islamic systematization. Now, having passed through four decades of experience, our revolution has come to what is called the “Second Phase of the Revolution” for which a Statement was issued by Ayatollah Khamenei. This statement is based on the achievements of the said four decades of great experience. The major question is raised," What principles and constituent elements does the Second Phase of the Revolution Statement offer for a systematization? Considering the foundations, scheme and clear orientation of the Constitution as to the rule of Islamic principles over other laws and regulations, there is no doubt that from the viewpoint of those who draw up the Constitution and of the Second Phase of the Revolution Statement, Islamic systematization is of certain constituent elements and axiological principles arisen from religion so that this system is taken to be based on such values as freedom, justice, opposition to arrogance, spirituality, rationality, and democracy. The harms, strategies, and the principles governing these values have been explained as the road map in the Islamic systematization. Drawing upon a descriptive-analytic method, the article studies the nature of these constituent elements, principles and the strategies for the fulfilment of Islamic systematization while taking into consideration certain perspectives as the ends of the Second Phase of the Revolution Statement.

Islamization of the legislative policy of the Islamic Republic of Iran is dependent upon the answer to two main questions as the following: First, what is the logic of the understanding of religion, which means the method of understanding, interpreting and deducing from the sources of religion? Second, given the fact the Muslim faqihs have different fatwas (decrees), what is the strategy of resolving the conflicts and coming to a conclusion? Drawing upon a descriptive-analytic method, and in answering the first question with regard to the falsity of the traditionalist (textual) view and its inability to meet the requirements of time, this writing is subject to the rationalist view which is of a logic of understanding based on theoretical jurisprudence. In explaining the answer to the second question, the writers, while holding the theory of the universality of legislation as the selected theory, under the view of the objectivity of politics and religiosity, think of the fulfilment of the Islamization of legislative policy as dependent on the belief in the absolute guardianship of the ruling faqih on the one hand, and its corresponding powers and authorities on the other, and takes the assignment of the standard fatwa, whether of the ruling faqih or of another one, to be in the hand of the guardian jurist or his chosen institution which is now the Guardian Council in the Islamic Republic of Iran.