نشریه حکومت اسلامی
سال بیستم شماره 1 (پیاپی 75، بهار 1394)

The issue of the political authority of ‘ Muslim Guardian Jurist’ in the formation of Islamic government has traditionally been a topic for discussion among Imamiyyah (Twelver) jurists. They have explained the legitimacy of the rule and authority of the Muslim jurist on the basis of ‘appointment by the Infallible Imams’ (May God’s peace be upon them). After the Islamic Revolution of Iran gained victory, many new ideas and opinions have been put forward with the aim of analyzing the foundations of the legitimacy of the authority of Muslim guardian jurist. These views and ideas seek to bring public opinions into more effect in legitimizing the formation of a government by a Muslim guardian jurist. One of these views is the ‘composite view’ which claims that people’s role serves as a legitimizing condition in Islamic government. In other words, though Muslim jurists have been appointed by God to enforce rules and to establish government in the context of existence, the condition for putting these into effect in the context of confirmation rests upon public opinion. To establish its claim, this view has recourse to such things as superior syllogism from the absolute legal power of the owner (QÁÝdah al-TasliÔ), people’s pessimism about Islamic government and its inability to meet its aims in case there would be no public opinions and even seeks the support of some traditions in this regard. These arguments fail to stand up with the arguments for the ‘appointment thesis. In case of taking an ‘attitude of tolerance’ towards this and casting doubts as to the condition of public opinion poll for the unconditionality of the Muslim jurist’s obligation to form a government, jurisprudential arguments in the Science of Principles (Ýlm al-OsÙl), puts the principle of aquittance into practice for those who undertake (religious) obligation.

The discussion on expediency in the ShiÝÐ political jurisprudence (fiqh) has gained tremendous importance after the Islamic government was established and the scholarly discussions entitled ‘the authority of the Muslim guardian jurist’ was raised by Imam Khomeini (may God sanctify his soul). This article is intended to explain what position expediency occupies in Imam Khomeini’s jurisprudential-political thought as a strategy for resolving the conflicts of rules (antinomy). The main question is whether, in the period of Major Occultation, the Muslim ruler can lay down rules with the element of expediency in mind or not.Rules and laws in Islam are meant the canonic or revealed rules and laws or the collection of rules and laws which have been laid down, in accordance with the general divine laws, by the legitimate leader to run the affairs of Muslim community and to ensure people’s interests in the society. In the political thought of Islam, expediency is taken into consideration in the framework of legal rules and regulations. What makes a link between expediency and government is not the position of expediency in terms of its authenticity or authority but in terms of the practice of obeying the law which is mainly expressed itself in two forms: conflicts of rules (antinomy) in the jurisprudential principles and governmental law. According to Imam Khomeini, therefore, in the period of Major Occultation, the Muslim guardian jurist can terminate primary or secondary rules on the basis of expediency or out of necessity, and put them into practice again in case the crisis situation is overcome. This form of expediency is possible only in the realm of governmental rules. From Imam Khomeini’s point of view, jurisprudence of acts of worship and that of transactions as well as primary and secondary rules come under the umbrella of expediency.

Various states have always found solutions to the questions faced by taking policies which determine the confident ways in which the political system encounter the perceived problems. The attribution of a state to a school of thought expresses itself in the two elements of ‘political structure’ and ‘decision-making system’. Accordingly, Islamic states, claiming to attribute themselves to the foundation of primordial religion of Islam, have to organize their political structure, decision-making system as well as their policies according to the wills of the divine Legislator. The present research work, focusing its attention on the concept of the authority of the Islamic state’s policies, seek to find an answer to the question that what constituents an Islamic government should have in order to be considered as authority in view of the Islamic Law and the Twelver (Imamiyyah) jurisprudential foundations and principles. To arrive at the answer, Shahid Sayyed Muhammad BÁqir al-Ñadr’s views and opinions have been explored, drawing upon the library research method in collecting data and offering jurisprudential arguments for their analysis. The findings of the research provide us with the three constituents: citing documentary evidence in support of religious doctrines based on independent reasoning (judgements), internal cohesion of general policies, and efficiency of general policies, to ensure the authority of the policies of the state in question.

In the early era of Islamic governments, an establishment called DiwÁn-e MaÛalim was responsible for taking care of people’s complaints about the oppressions and injustice exercised by the governmental men of position and the people in power. Taking into account such characteristics as relationship with the highest governmental official and employing powerful and righteous administrators and judges as well as a group of competent consultants have left us an effective and powerful image of an instance of reclaiming the rights of the oppressed people and of putting an end to oppressions. In this article, in addition to casting light on the nature of this social institution, special mention has been made of the aims of establishing this institution. These aims can be recounted as observing people’s rights and making people satisfied with the government and the system of supervising administrators and ranking officials. It has also sought to provide evidence for the fact that the establishment of this institution has been out of urgent necessity in an Islamic government.

Islam as a comprehensive religion, while stating fixed rules, has expressed changing rules as well, taking into consideration the material and spiritual advantages and disadvantages of changing rules and seeking common good in line with religious aims and destinations. Thus, expediency has gained special status in ShiÝÐ jurisprudence in that it has had impacts on people’s personal behavior and has given shape to political, social and family systems. Having established a political system based on ShiÝÐ jurisprudence, Imam Khomeini has, for the first time, launched a discourse on expediency which, in turn, has led to certain misgivings about it among religious scholars. The main question here is that what the concept of expediency is and that what is the difference between expediency and necessity as the most distinctive subject of discussion regarding secondary rules. “What status does ‘expediency’ occupy in family rights?” “Are the concept and conditions of expediency with regard to governmental affairs delegated to a Muslim ruler similar to the concept and conditions which have to be considered in relation to family rights, particularly in relation to the expediency which has been thought of in case a father or an ancestor is awarded to have custody of children? The present research work seeks to find answers to the questions mentioned above.

The Article 4 of the constitution of the Islamic Republic of Iran is an overriding article of utmost importance which governs all laws and regulations in the Islamic Republic of Iran. Considering the governing approaches to the interpretation of the articles of the constitution and the wording of the article 4, one can arrive at this important conclusion that the term ‘ruler’ (hÁkim) used in this article signifies ‘rule’ (or hukÙmah) as it is commonly used in the principles of jurisprudence, meaning that either of the two arguments can manipulate, whether by way of extension or intension, in the subject of the other argument or in its predicate. Taking this sense into account, all the articles of the constitution and other laws and regulation can be interpreted via this article. In other words, the article in question serves as a control over the other articles of the constitution as well as the laws and regulations. Hence, wherever there is an ambiguity as to the extension of one article among the other articles or of one law or regulation there is no need to look for a condition or qualification for it. Rather. One can extend its scope or narrow it down by having recourse to the article 4 of the constitution.

The relation between the state and culture has always been the subject of hot disputes in cultural policy-making. In proportion to their principles, various views have sought to provide answers to the problem. These answers range from maximal approaches, claiming that they have right to take charge of the affairs, to the minimal approaches, taking the supportive position. However, before providing an answer to the problem, it is plausible to make clear what state and culture are. In this article, on the basis of a three-phase policy-making (formulation, enforcement, assessment), as well as the library research method, and interviews with the authorities and experts in the field of culture and cultural policy-making, an attempt has been made to touch on the first item of the phases, i.e. formulation and the question which has to be answered. In answering to the question raised, the metaphor ‘social slope’ as the state strategy in policy-making is introduced.