نشریه حکومت اسلامی
سال بیست و دوم شماره 4 (پیاپی 86، زمستان 1396)

Having issued the legal pronouncement of the Grand leader of the Islamic Republic of Iran, Ayatollah Khamenei, on the prohibition of the application of nuclear weapon, the reason why the application of this sort of weapon is prohibited from the perspective of Islamic jurisprudence and Law was studied beyond the political and security aspects. The mentioned legal pronouncement in the western policymaking circles was faced with doubts about its practical efficiency. In contrast, in certain jurisprudential circles of our country it was subject to some doubts as far as its legal foundations are concerned. Accordingly, western circles have taken the legal pronouncement as precautionary concealment and compulsory and as such it was thought to lack necessary sanction. Some local circles have considered it inconsistent with legal arguments and thus rejecting its legal principality. The assessment of the two ideas mentioned above is based on the recognition of the fundamental theory of the legal system of Islam about regulations concerning the application of weapons and military operations. The mentioned theory is introduced as the theory of nationality, and its relevant legal arguments and jurisprudential foundations are explored in the present article. The fact that there is a complete consistency between the legal pronouncement of the Grand leader and jurisprudential bases and thought system of Islam and that the two ideas are deficient in a way or other is made clear by explaining the theory in question.

‘Grace’ meaning a Divine Act which serves as a factor which makes the obligatee (mukallaf) approach the obedience of God and turn him or her away from His disobedience or rebellion against Him is one of the important rules in the ImÁmmiyyah KalÁm. It serves to establish the truth of many religious convictions such as the necessity of sending prophets by God, the necessity of infallibility of divine prophets and Imams and the necessity of ImÁmate. The maxim can be used in discussions about how Imams can be recognized and determined. Mutakallimun, making no mention of the use of this maxim in the recognition of Imams, have studied it in the context of determination. The present research paper seeks to make a distinction between these two areas and at the same time studies how this maxim can have both the function of distinguishing a guardian jurist and of appointing him at the time of Occultation. The obtained results show that the same argument which involves the Devine Grace in determining the Imam, that is, prevention of taking religious practices as something bad and of violating the ends and purposes, can be applied in the context of the discovery of the Guardian jurist at the time of Occultation.

Political jurisprudence as an interdisciplinary approach in relation to jurisprudence and politics as two branches of knowledge serve different functions proportionate to the time when the jurists(faqihs) exert their authority over society and when there is maximal possibility to enforce the Law (shariÝah). Accordingly, political jurisprudence takes into account numerous functions and strategies in line with what guides the society towards happiness and prosperity and the ideal way in which a society is governed. Such things as the ‘establishment of an Islamic system of government and enforcement of Islamic laws and regulations in all aspects of human life’, ‘taking governmental approach to fiqh and leading independent judgments in religious affairs (ijtihÁd) toward the way in which a country is governed ideally’ and ‘how nations’ lives are run’, ‘meeting the needs of societies’, ‘making developments in human worldly affairs’, and, last but not least, ‘establishing human societies’ are good cases in point. In line with understanding the basic components of political fiqh such things as ends and functions as well as consideration of the up-to-date implications of political fiqh, this research work has taken into consideration the review and reappraisal of the Grand Leader, Ayatollah Khamenei’s views in this regard, assumes pollical figh to have new functions and numerous responsibilities drawing upon a data-based method.

One of the emergent topics which has no trace in the words of the early scholars in old ages is referred to as the ‘discretionary sphere of the law’ coined by Martyr Sayyed Muhammad Baqir alÑadr. Though the term has its roots in the time when the government established by the Prophet Muhammad (peace be upon him), its literal meaning as well as the collocation of the two words which bring to mind the idea of the sphere without any laws cannot be accepted and thus it is refuted by religious scholars and even by traditions. Therefore, it is said that by the discretionary sphere of the law it is meant that the sphere lacks the obligatory judgement (obligation, prohibition). Given the conditions and the interests of the Muslims, this non-obligatory judgement (in the forms of permission (IbÁhat), recommendable (istihbÁb) and aversion (karÁhat)) which exists in this sphere can be changed into an obligatory judgement. Now, considering the fact that this research is an applied one in this present condition of society, the article seeks to show who undertakes the responsibility of legislating and making judgements and decisions in this sphere. In other words, who is made responsible to act in this sphere? And How? What rules and regulations should the one who acts in this sphere follow? What is the relation between the governmental decisions and legal injunctions issued in this sphere? An attempt is made to provide answers to these four questions.

Since man naturally seek happiness and given the fact that one of the contributory factor to the attainment of happiness is to follow role models, God has sent the Prophets as role models and as those who conduct the society among whom the Prophet Muhammad is the crown. Influenced by the strong and honest angel of revelation, he started to move and, due to his good conduct which was originated in his God-given infallibility, managed, in a short period of time, to change the future of the nations of the world and to overcome all ideologies as well as western and eastern governments of the time in all political, social and cultural spheres. This article seeks to cast light on the distinguishing features of the systematic government established by the Prophet by means of describing the concepts and analyzing the subject in question. This research work is a move toward extracting the holy Prophet’s policies from the available sources. His great achievement and the secret of his triumph over the culture of ignorance was in fact the systematic government he established. During his presence in Mecca for thirteen years, the holy Prophet’s major concern was to take care of the cultural affairs and to train individuals qualified for conducting the newly established society. However, his ten-year residence in Medina which led to the establishment of a system of government based on guardianship (wilÁyat), his politico-social activities were directed to society-making as he held a holistic view to all aspects of society. According to the management experts, management as a scientific discipline is of some constituents such as equilibrium, progressivism, innovation, systematism, order, and efficiency, all of which can be found in the lifestyle of the Prophet Muhammad. This research seeks to cast light on certain distinguishing features of the prophetic management which can serve as models for us to follow.

The study of the way in which people exercise dominion or control over their own property and rights and the cases of conflicts in it is of significant importance in all legal systems due to its wide scope and great effect and the relations it has with the other parts of the law. Since the Constitution forms the basis of all laws in every country, this article seeks to answer this question that whether or not the legislator pays any attention to the possible conflicts between the articles of law and works out a solution for it. Furthermore, it seeks to see if there is a consistency and relevance among the solutions and views of the Muslim scholars in this regard. This research work has been conducted analytically and on the basis of jurisprudential and legal resources drawing upon library-analytic method. The findings of the research show that the legislator has taken into serious consideration the possible conflicts among various articles of law in formulation and enforcement and has said the last word based on the jurisprudential and legal views of the ShiÝī jurisprudents.

One of the fundamental and important theories in the discussions of administrative law is the theory of public services. This theory is among the ones that has social roots in contrast with individualistic theories. According to this theory, the state is obliged to provide people with certain services and promote their welfare. Taking the articles of the Constitution of the Islamic Republic of Iran, including the articles 3, 29, 30, 43, …, this theory is considered as the most important basis for the existence of the state administrative system and is subject to principles governing it. The governing principles are equity, priority, correspondence, continuity and public services without charge. This research, drawing upon descriptive-analytic method, makes a comparative study of the theory of public services and the principles governing it in the French administrative law and the administrative law of Iran according to the Islamic teachings. Researches into the Islamic authentic sources make it possible to gain access to the meaning of public services and the principles governing it. Public law which has its roots in French administrative law and which is based on the liberal democratic system differs to some extent from what is proposed in Islam and ideological systems including the legal system of Iran. In the western system, the theory of public services is based on what people desire. However, in the Islamic system the aim of providing public services is to pave the ground for human growth and perfection, for man has been created to attain true perfection which is the station of divine proximity. Therefore, social laws must provide the context in which this perfection is achieved. The principles governing public services can also be traced in Islamic sources and found to be important. The Islamic view of concept of certain governing principles on public services is different from that of the West. For example, in the Islamic view, the principle of justice rather that the principle of equity has been accepted.