نشریه حکومت اسلامی
سال هجدهم شماره 4 (پیاپی 70، زمستان 1392)

The present article reveals a scientific research on the great Sheikh An›āri thought on the absolute guardianship or authority of a Muslim jurist in his well-known book Makasib.In his Makāsib, Sheikh An›āri believes that one cannot deduce the absolute authority of a Muslim jurist from the transmitted sets of narrations, hadiths or traditions. In this essay, an attempt has been made to make a critical analysis of the hadiths regarding the authority of a Muslim jurist or faqih trying to consider the circumstance occasioned the issue of these hadiths and make a scientific criticism of Sheikh An›āri’s arguments in this regard.

In order to implement ordinances of the Law, a ruler, in a Muslim society, directly or indirectly, proceeds to issue governmental decrees in terms of interests in the area of social issues, including issuing governmental decrees in the realm of jurisdiction. In facing governmental decrees, the judiciary’s reactions are rested on the way they treat thefoundation of governmental and judiciary decrees or decisions. The authority of a ‘competent Muslim jurist’ and Islamic rule are among the principal rules of Islam, so laying dawn governmental decrees and taking into account what is expedient is supported and sought by the lawgiver. In a Muslim society, a Muslim jurist (faqih) is of legislative and executive authority and this sort of authority requires that a Muslimjurist can make a decision or decisions on either side of a judiciary case even when the governmental decisions seem to be in conflict with other decrees. When governmental decisions come into conflict with judiciary decrees, governmental decisions takes precedence over judiciary decrees in practice.

To gain access to governmental high positions as a specific ‘civil right’ is considered to be among the major constituents of democratic governments and one may claim that, with the neglect of this civic right, the supposition of having a democratic state seems to be unrealistic. The question is that “Does religion, in political system of Islam in general andin the Islamic Republic of Iran in particular, have any effect on granting people their civil rights?” The present article, while analyzing the nature and scope of civil rights and giving its definition as “the rights which have been established with regard to what is implied by legal and juristic principles in a given society indicating indexes of people’s fundamentalrights to have an active personal and social life in that society,” deals with rights in two planes: ‘general civil rights’ and ‘particular civil right’, seeking to show that religion in the former plane constitutes no cause for a distinction between citizens in having their own rights. Rather, religion, particularly Islam, persuades governments to grant people their rights in an equal manner. The article 20 of the Constitution of the Islamic Republic of Iran supports this claim. However, for certain reasons, including the rule of “rejection of the dominion of disbelievers over the believers” or the rule of ‘nafyi sabil’ as well as certain requirements for ruling people such as principles of coherent aim, respect to the opinions of the majority, commitment and faithfulness, religion is regarded to beessential and effective in granting people particular civil rights (having rights to take charge of higher governmental positions).

The establishment of an Islamic government and the enforcement of related rules and regulations is one of the most challenging issues in the periods of occultation. It has been of great concern for Shi‘a scholars since the end of Minor Occultation so that they have made attempts to provide an appropriate solution for this problem according to theQur’anic verses and narrations. The answers Shi‘a scholars given to such questions as whether or not the establishment of an Islamic government in the period of occultation is essentially permitted, and if permitted, who has the right to establish the government, and if not permitted, what the Shi‘a people have to do to run their own affairs, whether they are permitted to take a tyrant as their ruler, what is the duty of Muslim scholars in this regard, and the like vary. Since the Muslim scholars in Safavid period had the opportunity to enforce Islamic rules and regulations and, in many cases, their Islamic decrees on the necessity of obedience were identical with the Safavid king’s orders and in some cases the Safavid king was not also able to defy Islamic decrees, careful attention to the above questions has become so important that the present article attempts to find an answer for the questions raised by the Muslim scholars in the Safavid times.

In the contemporary world, election represents and manifests people’s highest degree of participation in political and governmental affairs and as such it is regarded as one the constituent elements of democratic political system of government. It has gained importance in such a way that it makes no sense to have a conception of a democratic system without the possibility of people’s active participation in political and governmental affairs. In the political system of Islam, which is based on religious democracy, people’s political participation has received special attention and even taken to be a religious duty and legal obligation. The findings of this research show that, given the fact that there is adifference between ‘right’ and ‘judgment’ or ‘decision’ in the words of Muslim jurists on the one hand and that ‘rights have the property of being waived’ as well as considering the nature of citizens’ political participation in elections on the other, today one cannot take these as instances of rights. Rather, they have to be regarded as instances of decisions or judgments.

The ‘Discretionary Sphere of the Law’ or Mantiqat al-Farāgh is an innovative compound term coined by Shahid Seyyed Muhammad Bāqir ‹adr, though as a thought has its roots in the Islamic state established by the Prophet Muhammad. Mantiqat al-farāgh, literally, means a sphere in jurisdiction devoid of any juridical decision. However, the adoption ofthis thesis is not supported by the narrations and thus its falsity is quite clear and as such one can say: the discretionary sphere of the Law does mean a sphere devoid of obligatory decisions. Nevertheless, in a judiciary sphere where there is no obligatory decision, under certain conditions, a Muslim ruler can interfere and change the non-obligatory decision into obligatory decision. This idea may bring about some problems because this idea recognize a Muslim ruler’s special prerogatives (rights) concerning issuing governmental decisions as something legal, which contradicts either the idea that how somebody other than God can make law or have the right to legislate law, while this authority is peculiar to God, the Lord of the Worlds, or the idea that Islamic injunctions are eternal and unchangeable, so how a Muslim ruler can change these divine injunctions into some other governmental decisions. The present article seeks to refer to five serious objections raised by Muslim scholars as well as the appropriate answers which meet them.

The legitimacy of uprising against a tyrant or despotic ruler has enormous impact on socio-political changes in Muslim communities. For the adoption or rejection of this thesis can have different consequences for the process of changes in every society. In Shi‘i political fiqh, unlike Sunni political fiqh, it is considered essential to disobey and launch campaign against a despotic ruler, and this has been emphasized by numerous Shi‘i jurists (faqihs). This line of thought has contributed to the formation of revolutionary movements (Islamic revolution in Shi‘a communities) or uprisings against despotic rulers who rule over Muslim communities in the contemporary world. Nowadays, as the Islamic Awakening Movement has increasingly gained strength, it seems necessary to explain fiqhi foundations of revolting against despotic rulers as they appear in fiqhi literature. This move is a positive, though small, step in achieving the objectives in this regard. The present article seeks to explore the arguments for the legitimacy of launching campaign and uprising against a despotic ruler and to cast light on doubts raised on it by some scholars in Shi‘i political fiqh by reference to existing documents.