نشریه حکومت اسلامی
سال بیست و سوم شماره 3 (پیاپی 89، پاییز 1397)

Acc0rding to the Shii political fiqh, the right to rule over human beings belong to God, His Messenger, and the Infallible Imams. However, in the period of Occultation, this rule can still be applied by highly qulified religious jurisprudent (mujtahid-e jÁmiÝ al-sharÁyiÔ). This sort of rule is the just rule and is contrated with the rule of a man who sits on a throne illegally without being appointed as a ruler by God. This sort of ruler is what is called a 'despot' who exercises his rule in a cruel and oppressive way. Taking positions in the government ruled by a despot is taken to be not only a sort of lending support to an oppressive and cruel rule but also a means which paves the ground for a despot to realize his oppressive goals, put an end to the Islamic rulings, weaken the people who are on the Right Front and finally move away from administering justice in society. This article seeks to establish the jurisprudential maxim 'prohibition of the rule of a despot'. In this connection, after analysing the concept of the guardinship of a despot, an attempt is made to establish the total prohibition of such a rule drawing upon the legal arguments and the views raised by the Muslim jurists. The maxim is also supported by reason. In this way, the maxim can be formulated as 'the guardianship of a despot is prihibited unless there is a sound argument on which his rule is permitted.' According to this maxim, interaction with a despot is definitely illegal and thus forbidden in Islam. However, the difficulties and hardships faced by the Shii people when a despot is in power, there are certain permissions are given by Infallible Imams to the qualified people to cooperate with a despot with the intention of paving the way for meeting people's needs, enjoining the right and forbidding the wrong; and in a certain circumstance, as being under duress or constraint, they issue a permit of necessity or enforced concealment. These permits are the exceptions to the 'maxim of the prohibithion of the gurdianship of a despot'.

As the world communications develop, the interprsonal legal relations also increase at a global level. This gives rise to the emergence of certain issues which can take on not only a domestic and legal form but also international aspects.  The question raised here is whether or not, from the perspective of Imamite fiqh, there is a possibility of accepting the legal decisions which are made in the courts of different countries of the world, especially in the Isalmic countries. In this article, there is a prevailing view that in Imamite (twelver's) fiqh regarding civil rights, it is possible to accept the rulings and judicial decisions of other Islamic countries.  However, in relation to the rest of non-Islamic countries, the maxims such as the maxim of 'obligation' can pave the ground to accept the judgemrnts or decisions of the the courts in the Islamic and non-Islamic countries. It is evident that this acceptance is in terms of 'primary rule' and the use of such rules as "Muslims are bound to their obligations" as well as the 'expediency' which is discerned by the religious authority (judge) provide a bigger opportunity in terms of the secondary rules in this regard.

One of the main questions for which any political theory is bound to provide an answer is the legitimacy and justification of a government. the question is "Where does the legitimacy of government come from?" For any government needs to be legitimate to form and survive. If the legitimacy of any system of government is strong and reasonable, this will contribute to its efficiency in a significant way. Now, regarding the importance and role of legitimacy and its relation to the idea of allegiance or acceptabiity in view of political behaviour of the people under the rule of the Commander of the Faithful, Imam Ali (may peace be upon him), it is necessary to explore the issue and analyse the relation between the two. Drawing upon the descriptive-analytic method, this research which is at once based on the studies on the political structure in the area of legitimacy, came to a conclusion that, from the viewpoint of Imam Ali, the Commander of the Faithful, the legitimacy of government is dependent on the will of God, the Almighty, on the one hand and the people's choice or acceptance of a government as a sign of their allegiance to a Muslim ruler can be effective in realizing a government. Thus, allegiance had nothing to do with legitimacy and was based on the political structure of society in the Arab world at that juncture in history. In Alawid government, allegiance, though it seems something necessary, but, in reality, supports people's capability and right to back up a religious government but in no way legitimizes and justifies it.

Expediency can be defined as doing any task which is to the material and spiritual interests of individuls and groups in society. Religious denominations hold the belif that expedincy plays a significant role in law making. However, there are disagreements on the scope of it and the divine judgements have been established on the basis of common interests and harms. Since the Muslim guardian jurist cannot solve all governmental problems only by means of primary rules, hence giving him more power and authority and taking him in position and status as identical with the Prophet and Infallible Imams, he can be granted actually an authority and rule as well as the right to benefit from the primary and secondary rules in such a way that he can find solutions to many new matters (masÁÝil mustahditha) in the modern word by making claims regarding the eternal and all-embracing aspects of religion. This research work seeks to provide an answer to the question 'what role expediency plays in realizing the absolute guardinship (of the Muslim jurist)'. Since so many researches have been made on the idea of the guardinship of the Muslim jurist and expediency separately, there has been no mention of the studies about the relation between these two concepts. Thus, it seems necessary to conduct a research on this issue.

In the context of a political society, as soon as a political system is established, the constitutional law will be formed. Thus the constitution aims to regulate the political society in line with legal principles. Therefore, one needs to have a good understanding of "political society" in order to discern and evaluate its corresponding constitutional law. A political society itself is affected by environmental, cultural, political, economical and historical conditions. That is why the elements of a political society in different societies are different. This article seeks to recognize and redefine the demographic context in which the political system of the Islamic Republic of Iran is formed. The findings of this research show that the political society of the Islamic Republic of Iran (Iranian community, not Iranian nation, nor Islamic community) subsists on two elements: ' vast majority of Muslims' and 'religious leadership'(imamate). It is these two elements, not the national interests, internanational geographical borderlines, or common language and history, that not only constitute the fundemental and genuine axis of unity in this well-organized political society but also make it distiguishable from other societies. The Islamic Republic reflecs the aspirations and wishes of a unified and organized community of believers on the same land, not a community of nationalists of common interests.

The main question of this essay is what role or effect the Ñadrian ontological principles has in making analysis of a religious government as one of the important issues in the Islamic political philosophy. To answer the question, an attempt has been made at the outset to make use of a descriptive method to deal with four important issues among the Ñadrian ontological principles and then, drawing upon a descriptive-analytic method, to study the role the aforementioned principles may have in explaining and elaborating on religious government from MullÁ Ñadra's point of view. The findings of the present research show that the principles like taking being (existence) as having degrees, purposefulness of existence, opposition and contradiction in the world of matter, as well as transubstantial motion and gradual change in the world of matter do have direct effect on discussions on the Ñadrian political philosophy, including the issue of religious government. On the basis of these principles, one can have a gradational and hierarchical image of a religious government ranging from the prophets' governments to the govrnments of scholars and religious jurists.

In the modern era, due to the demanding requirements of the modern states, all Islamic countries have come into existence and gained independence on the basis of nation-state structure and the modern state paradigm. However, the heritage of statemanship in the Islamic thought has been described as being based on the big theory of "ummah" or "community", opening up new horizons for Islamic sovereignty in Islamic societies. In fact, the two important elements required for understanding the constitutional law system and offering good prospects of sovereignty in contemporary Islamic society are: the concept of modernity and its related legal and political structure on the one hand and the legal and political structures of the Ummah or Muslim Community originating in Islamic thought on the other. The idea of Ummah and its formation process has received particular attention in the Constitution of the Islamic Republic of Iran. Given the fact that there is no possibility of ignoring these two concepts and their implications, the way in which the modern state interacts with the new structures of the Islamic Community constitutes the future state of the Islamic world in terms of law and politics. This is the issue which is the focus of attention in this article. The question raised in this article is this," Considering the requirements for forming a modern state, how can one obtain the Islamic Community?" To answer this question, the writers of the article make a careful analysis of the two concepts of "modern state" and "Islamic Community", as well as of the supposition that the modern state is incongruent with the requirements for establishing the Islamic Community, seeking to offer strategies for transition to the Islamic Community in view of the constitutional law system in the Islamic countries around the world.