نشریه حکومت اسلامی
سال بیست و دوم شماره 1 (پیاپی 83، بهار 1396)

In line with the ever-increasing regularity of Muslim lives on the basis of religious doctrines, it has been, and it is still, customary among Muslim scholars to write certain principles in Islamic fiqh. The juristic principle of “All Kinds of Rulership Are a Trust.” which has been formulated in this article is an attempt to arrive at a juristic-political discourse in the matter of government in Islam. This has resulted in the necessity of creating a system in governmental fiqh which has expressed itself greatly in the Islamic government established by Imam Khomeini after the Islamic Revolution gained victory. The research method used in this article is an analytic-descriptive one with reference to the Qur’anic verses ‘denoting trust’, along with the study of the opinions of the interpreters of the Qur’an intended to show the extent to which they can imply or apply to the issues related to government. Numerous references to different Qur’anic interpretations as well as the Muslim scholars’ consensus of opinions make it possible to take the final implication as evidence for the principle at hand and then apply it to the questions related to the fiqh al-amÁnat, jurisprudence of trust. The article concludes with some points about the characteristics and qualifications of a ruler and those of people, the extent to which a ruler and people should have responsibilities towards the government which is a divine trust, conditions laid down for defending it, etc.

In addition to having an individualistic nature, the Islamic fiqh has a social nature as regards to rulership and managing a society. Contracts of smuggled goods which shatter the Muslim market are, in fact, a damage to the Muslim community and its economic system. This article seeks to cast light on the positive and imperative rules regarding the transaction of smuggled goods. Beginning with an introducti0n, the article goes on to make clear the concept of ‘smuggling’ and expounding the positive and imperative rules of transactions of smuggled goods and finally comes to explain the reasons given for the two kinds of mentioned rules. Imperative rules of buying and selling the smuggled goods, the unlawfulness and the good reasons such as disordering the ruling economic system, violations of governmental agreements and contracts, the principle of ‘causing loss and damage is prohibited in Islam’, the principle of ‘the legal rejection of any dominion or rule by the faithless over the faithful [Muslims], and the [denial of] contributing sin and transgression are clear instances of the imperative rules. Regarding the instances of positive rules, the article makes mention of cases of unlawful transactions, fiction of veracity (correctness), the principle of contractual freedom and the lawgiver’s permission to intervene transactions.

Given the efforts made by the Law-giver in legislating punishment laws and the comparison between Islam and other schools which have laid down penal laws, one can say that the issues such as ‘preventing commission of a crime’, ‘correctional programs’, ‘administering justice’ and ‘satisfaction of a victim or injured party’ are based on the appropriate penal policies and in line with the religious teachings of Islam. These can be said to be the most important objectives of the penal system governing punishment laws. Islamic penal policies and the relevant rulings are based on and determined by the interests and corruptions which they may have. ‘Interest’ or ‘common good’ is a widely-used concept in the Islamic jurisprudence and the ‘Principles’ signifying any act which bring about material or spiritual benefits for individuals and society as a whole. No doubt, divine punishments have been laid down according to the common interests of the Muslim community. The aim of implementing the rulings is to arrive at publicinterests, including self-interest and the interests of religion, reason, female family members and property. These interests are not restrictive. It seems that nowadays a Muslim ruler is entitled not to implement certain punishment laws with recourse to secondary rules and the principle of expediency and even he can replace them with some new ones. For, if a law is laid down for a criminal act and is not implemented for some reason, it will lose its declarative property. In case the implementation of an Islamic law brings about a corruption (mafsadah), in reality, it has lost its consideration of public interest – even within a short time – and thus one has to consider public interests with respect to the punishment laws and requirements of time and place.

The legitimacy of pecuniary punishment in an Islamic government has been one of the serious challenges faced by Shi’i jurisprudents. The Sunni jurisprudents are also not unanimous about the issue in question. In general, in both ShiÝi and Sunni jurisprudence, there have been two differing views of the financial offences. Since the early ShiÝi jurisprudents have not been faced with the juristic (fiqhi) questions in the field of Islamic government, they have had less considerations of the governmental fiqh and taken the legal discretionary punishments [awarded by the judge] to be restricted to what the legal texts prescribe. In other words, they hold the view that the prescribed punishment can be reduced to and replaced by imprisonment and reprimand of certain kind and do not consider pecuniary punishments and deprivation of political and civic rights as illegal. However, after the establishment of the Islamic Republic of Iran, some contemporary faqihs, having made some considerations of and speculations about governmental fiqh, believe that an Islamic government can lay down laws for pecuniary punishments. In this connection, they argue for the necessity of the preservation, reorganization and consideration of the common good of the Islamic community and offer historical evidence based on the reports of the Infallible Imams to substantiate their own views. In the Sunni fiqh, there have been two theories concerning pecuniary punishments. Some say that pecuniary punishments are permissible and some believe that they are illegal and thus forbidden. Both groups have offered their own reasons, but the legitimacy of pecuniary punishments as discretionary punishment in the discipline of fiqh enjoys a stronger ground which leaves no room to doubt about it.

After the Holy Prophet’s passing away, the question of his successorship has become one of the controversial issues among Islamic denominations. The answer to the question about who and which source one has to rely on for the legitimacy of the person who is entitled to succeed the Prophet Muhammad after his demise has become even more challenging. The present article studies the textual proofs in ShiÝi KalÁm for the divine legitimacy of the Infallible Imam. The proofs are all based on the widely transmitted hadiths about the Ghadir Event. Drawing upon a descriptive- analytic method as well as an approach based on fiqh al-hadith, the article has dealt with the issue in question within the textual KalÁm. Methodologically, on the basis of the implication of the Hadith of the Pond of Khumm, the term mowlÁ signifies the following facts that mawlÁ in the very context in which it is used in this occasion refers to the one who, prior to everybody else, is entitled to take possession [of something], that on the basis of the revealed verse in Ma’idah, 5:671 and its imperative content God ordains the Prophet to communicate the Divine message to the people and immediately warns the Prophet that if he does not, he will not have communicated His message and thus His message will have been left incomplete unless Amir al-MuÞmenin Ali (peace be upon him) is appointed as his successor on God’s command. Upon communicating the Divine message, the verse al-MaÞidah 5: 3 has been revealed signifying that God has perfected his (the Prophet’s) religion for him, and He has completed His blessing upon him, and He has approved Islam as his religion. From the first-person pronouns whose antecedent is God along with all the verbs used in the mentioned verses one can easily recognize that the legitimacy and the appointment of Ali ibn AbitÁlib as the rightful successor to the Prophet (peace be on him and his progeny) is done by God. The Prophet was also ordained by God to communicate this Divine message to the people.

Islamic fiqh has a wide scope and domination in all aspects of human life, especially in keeping the social order. In legislating and laying down juristic rules and their ramifications, God, the Almighty, has taken notice of individual aspects of human life as well as the socioal interests and corruptions and the healthy state of the society as a whole. A healthy society needs, first and foremost, a mental security prior to welfare. Among the principle influencing mental security is the principle of veracity in the discipline of fiqh. The Divine Legislator has commanded that all human acts, even speech acts and beliefs are to be felt as something veracious. This feeling is inherent in human consciousness, thought and mind being in harmony with human innate disposition (fiÔrah). This principle is studied in most books of juristic (fiqhi) rules and are most known to mean “fiction or principle of veracity (correctness)” and “fiction of permissibility.” Drawing upon the Quranic verses, this article has studied the traditions and jurisprudential sources in terms of these two meanings, coming to the realization that mental security takes precedence over all other instances of security. Given that there are good reasons for the principle of veracity which refer to mental security of certain kind, acting on this principle brings about mental peace and security in both individuals and society.

Making judgement about the women’s rights in all aspects, including appointing them to social and political positions, is based on a true understanding of many constituent elements such as jurisprudential and legal foundations, principles, evidence, and reasons, whether of confirming or prohibiting nature, as well as their examination. There have appeared many books and articles in the field of jurisprudential reasons and evidence but the foundations and the principles have not yet been taken into serious consideration. The findings of this research work show that with regard to the ontological and anthropological foundations of rights and obligations as well as the relevant pivotal defining principles, though the reality of legal distinctions in the field of family rights between man and woman is undeniable, extending these distinctions to cover social and political positions need particular evidence and thus due to the established (accepted) foundations and principles one cannot consider the limitations of appointing women to different positions as applicable to all women in case legal considerations are taken into account.