نشریه حکومت اسلامی
سال هفدهم شماره 2 (پیاپی 64، تابستان 1391)

Dr. Mahdi Hāeri Yazdi, among others, is a thinker who has made a critique of the thesis of “the Authority of Muslim Juristconsult” in his book entitled “Wisdom and Government”. The present writer understands his critique of the thesis in question as a non-confessional critique, though it might be conceived differently at first sight, since he has not made an attempt to make use of religious doctrines in constructing the theory of “representation” or Wikālah and that of “joint private ownership”. Regarding the fact that his critique of the thesis of “the authority of jurist consult” has raised some doubts, the present article tries to provide an appropriate answer to the critique.

“Fiqh council or Counciliary legal decision in deducing legal prescripts” is an issue which has been open to discussion in certain scientific circles. The council, which consists of a group of jurisprudents, is intended to deduce fiqhi or legal prescripts. In this article an attempt has been made to take the “fiqh council” as an “evidence” and explores all arguments which can support it. The council in question will be analyzed and scrutinized in this article in terms of varying views on the correction of evidence making offered by the scholars who are expert in the principles of fiqh.

Shiʿi fiqh as a long-lasting heritage of the past jurists(foqahā) is formulated and developed on the basis of certain fundamentals and principles which have been capable of meeting the needs of the Islamic society. Although Muslim jurists in various periods and due to some expediencies have paid special attention to the responsibility of answering and resolving religious questions of Muslim believers, this does not imply that fiqh is devouted to the personal affairs of responsible persons(mukallafun), but that the unchanging principles and fundamentals of fiqh are appropriate for the govermental fiqh to be applied by some Muslim jurists in running the affairs of the Muslim society in an efficient way and pushing it towards material and spiritual happiness. With the victory of the Islamic Revolution and the establishment of an Islamic political system based on Shiʿi fiqh, the ground was prepared for the potential and actual emergence and growth of such things as governmental fiqh in the light of priciples and fundamentals of Imam Khomeini's school of fiqh. Imam Khomeini's all-embracing view of fiqh, considering Islamic government as the practical philosophy of fiqh, introducing the thesis of the absolute authority of the Muslim jurist and putting emphasis on such constituents as expediency, time and place, governmental decree gave the Muslim jurists in times of occultation more scope for power and authority to run the desired religious and mundane affairs of the Islamic society in an efficient way which, in turn, will improve the efficiency of the religious system and will further strengthen the position of governmental fiqh in the realm of Shi’i fiqh.

Government as the most important political institution in the human realm and the fundamental element of the state, is laid on two foundations, one of which constitutes the form and the other represents the truth and content of it. Each of these two foundations has its own several constituents. Knowledge of the formal and content constituents can lead us to the understanding of the nature of government as viewed by Muslim scholars, making clear the advantages and the disadvantages or shortcomings of any governmental theory, its relation to the political behavior and function in practical realm. The great scholar and the Forth Martyr, Seyyed Muhammad Bāqir al-Sadr, embarked on theorizing on Islamic government in the periods of Imam of the Time’s occultation within the philosophical and theological discourse, making efforts to offer a distinguished and important theory in this regard basing his arguments on the concept of the “Divine Vicegerent” in times of occultation. Accordingly, the present research seeks to provide the reader with much deeper recognition and more precise explanation of Martyr Sadr’s political thought about Islamic government.

According to article 113 of the constitution of the Islamic Republic of Iran the President is considered responsible for implementing the Constitution and acting as the head of the executive. The scope of this responsibility can not be taken as including “the three wings of the Armed Forces”. Otherwise, the principle of the independence of the three wings of the Armed Forces is violated. Likewise, regarding certain circumstances which led to the rejection of the President’s qualification in “regulating the relations between the wings” in the process of revising the Constitution in 1368 and the relation between this qualification and the issue of “supervision over the proper execution of the Constitution”, one cannot say that “after the office of Leadership, the President is the highest official in the country” who is invested with the qualification to regulate relations between the three wings. Rather, this can be done only by the highest official of the country due to the fact that one of the “main tools” of the office of the Leadership in holding the qualification to resolve differences between the three wings of the Armed Forces and regulation of their relations (stipulated in the article 110, item 7) is the possibility of “supervision over the execution of the Constitution”. Thus, any conception contrary to the above mentioned one is also in contradiction with the Aricle 110. Therefore, according to the articles 113 and 121 of the Constitution, the President is made responsible to safeguard and supervise the executive aspects of the Constitution only in matters directly concerned with the office of the President.

Political fiqh has enormous impact on the Islamic Republic of Iran in various ways and has paved the ground for the formation of a new political system based on the principles of Shi‘ī political fiqh as well as the introduction of the theory of administration of political society. Furthermore, as temporal and spatial exigencies require, it suggests the constitution necessary for the society, trying to establish the structures of the new system and to form the institutions of the political system in accordance with religious concepts and Islamic values. The institutions include certain institutions, whether selective or non-selective, whose significant functions are to maintain general interests. Muslim’s jurists’ reflections in this historical juncture, especially those on the thesis of the authority of Muslim juristconsult and Imam Khomeini’s statements of the constituent elements of Islamic government paved the ground for the exchanges of ideas and opinions in this regard. Therefore, the impacts of political fiqh on the Islamic Republic of Iran from the establishment of the Islamic government to the fulfilment of the structures of the Islamic political system and the interweave of political fiqh and new political order constitute a very important subject with which this article will deal.

In this article, a comparison is made between the political views of Ayatollah Shah Abdi and those of Imam Khomeini, casting light on similar and different aspects of the views of these two pillars of fiqh (jurisprudence), mysticism and politics.The article presupposes that a great deal of Imam Khomeini’s political views agrees and is consistent with, and, in certain cases, complementary version of the views of his Master Ayatollah Shah Abadi. There is ample evidence that, many years before his death, Ayatollah Shah Abadi showed the Path to his hard-working pupil, Imam Khomeini, and the latter restated “what his Eternal Master had told him.”