نشریه حکومت اسلامی
سال بیست و چهارم شماره 3 (پیاپی 93، پاییز 1398)

The concept of Legal Addresses (khitabÁt-e qÁnÙniyah) is one of Imam Khomeini's scientific innovations in the field of Usul-e Fiqh or principles of Islamic jurisprudence. He has presented this concept as a part of the discussion concerning the methodology of legislation and issuance of legal rulings, maintaining that those instructions or messages which are not directed to a particular person and are general or universal have been issued with the intention of establishing a law not taking into consideration the power and knowledge as qualifiers for different situations of those people who are subject to legal obligation (mukallaf ) In fact, the ordinance is directed to the general titles postulated in the addresses. Since this theory enjoys tremendous importance and has far-reaching implications in legal studies, the article seeks to examine its important effects and implications in the principles of jurisprudence. Drawing upon descriptive-analytic method and referring to library data, this research has been conducted. The result of this study is the clarification of the implications of this theory in a number of important issues and topics of discussions in political jurisprudence such as ‘the necessity of taking measures to form Islamic government even when there is no power or authority to do so’ and ‘the priority of societal approach to security over the individual approach to security’.

Jamming, often referred to as satellite jamming, is used as one of the methods of blocking reception of transmitted signals of satellite televisions. This article seeks to make a legal study of this issue in order to find an answer to the question, “What are the legal reasons for the use of satellite jamming?” What are the conditions for allowing the use of satellite jamming? Regarding the possible health hazards of satellite jamming of harmful kind, what decision can be made? What would be the role of the Muslim ruler in this connection? Having studied the various statements and reasons for the use of satellite jamming and the collected necessary data from various written sources, computer networks and websites, and scientific soft wares, this research work, drawing upon the descriptive-analytic method in data processing, has come to this conclusion that the reason for the necessity of the use of satellite jamming is to fight corruption and to put into practice the principle of “forbidding the evil” on condition that the principle of ‘no harm’ is applied. Therefore, in case there is possible health hazard of satellite jamming, due to the Quranic rule of “no harm”, the necessity of practicing the principle of forbidding the evil is removed. The same principle is even considered illegal (ÎarÁm) by Imam Khomeini on the grounds he put his arguments. Of course, it must be noted that the necessity and importance of practicing the principle of “forbidding the evil” is only possible by Infallible Imams’ or their deputies’ recognition and consent.

ShiÝi jurisprudence, as an epistemological system supported by divine revelation which governs all aspects of human life, and which seeks to provide real happiness at individual and social levels, is of strategic views concerning the way to ensure security. The ShiÝi political jurisprudence, inspired by the illuminating divine revelation and hadith texts to internalize diplomacy for the provision of the substructures intended for ensuring security, have developed certain appropriate strategies and approaches to the relevant issues. Accordingly, drawing upon descriptive-analytic method, the present essay has dealt with the aforementioned principles. First, the verse no. 6 in Chapter 9 (al-Tawbah: 6) “Then convey him to his place of safety…”, as a rule of safety, is based on the idea that the aim of drawing up safety or security treaty is to provide opportunity to engage in dialogue with the other side, and, second, the verse “… and those whose hearts are to be reconciled, (9:60) as a rule of ‘ reconciliation between hearts’ aims at paving the ground for improving public diplomacy and, third, the verse “ if they come to you, judge between them,…”(5:42) as “the rule of obligation) aims to make the other side accept and practice his own religious laws and regulations. This article seeks to make an analysis and assessment of the bases of the relationship between security and diplomacy in ShiÝi jurisprudence.

Certitude, authority and authenticity in citing a document in support of legal matters can be obtained by referring to the sources in Islamic jurisprudence as the main source for starting deliberation on jurisprudential issues. The Qur’Án and the Sunnah (of the Prophet Muhammad) are believed to be the two main sources for Islamic jurisprudence and political jurisprudence. The authority of the Sunnah in political jurisprudence, though it is based on the authority of the Qur’Án, has to be considered as the richest source for deducing judgements in political jurisprudence as it serves to explain and expound the QurÞÁnic doctrines. Consensus (ijmÁÝ ) in ShiÝi political jurisprudence can be taken as both a source for issuing judgments and political obligation only when it serves as an instrument to discover the Sunnah. The self-evident and definite perceptions of the intellect in the ShiÝi political jurisprudence are the authority and other rational deliberations have attracted the attention of the ShiÝi jurisprudents as they correspond with the definite revealed teachings which are themselves a criterion. Custom (Ýurf ) is more used in recognizing the subjects of political jurisprudence, and expedience is applied as an instrument to diagnose the referents of the political subjects. However, it is not taken as an independent source. Social contracts, if deduced from the genuine religious sources, is, in fact, a return to the Holy Qur’Án and the Sunnah and the theory of Western social contract is of no resemblance or relevance to the ShiÝi political jurisprudence.

The idea of the necessity of setting a time limit for the election of certain people as representatives for different political positions has been recognized as one self-evident principle in systems of government based on democracy. Being influenced by the same idea, and extending the requirements of setting a time limit for political positions or offices to include a Muslim jurisprudent, some scholars maintain that it is necessary to set a time limit for the authority of a Muslim jurisprudent. The main arguments for the establishment and necessity of setting time limit for the authority of legal guardian come from the fear that any government, if continues to rule for a long period of time, may eventually lead to corruption. However, this accusation is denied of the Muslim jurisprudent altogether because the Constitution of the Islamic Republic of Iran, by laying down certain conditions such as ‘justice’ and ‘piety’ as stipulated in the articles 5 and 109 of the Constitution, in addition t0 the external supervision exerted by the Assembly of Experts of the Leadership, has set certain internal indexes for the appointment of a Muslim jurisprudent. These indexes are found to have no trace in other governmental systems of the world when the head of the state is going to be elected. On the other hand, leadership in the systems ruled by a Muslim jurisprudent is never a lifetime position and subject to the conditions and qualifications and bound with time, and as long as the conditions and qualifications set for the leadership persist, the Muslim jurisprudent will remain in his position. Furthermore, if the leader does not meet the conditions for leadership, or is known to have lost his necessary qualifications or competence as stipulated in the Constitution, the Assembly of the Experts is empowered to dismiss him and decide whom to be appointed as his immediate successor. Therefore, the arguments for the necessity of setting a time limit for the rule of the Muslim jurisprudent or a legal guardian can be taken as ‘negative proposition because of its subject being non-existing ab initio.’

The study of such concepts as freedom, justice, security and the rule of law in the constitutional law has always received considerable attention of thinkers in the fields of politics, law and political jurisprudence. Given the apparent resemblance between the theory of absolute guardianship and absolute state, the comparison between Imam Khomeini’s view and Thomas Hobbes is an important subject that has not been given considerable attention. Drawing upon a descriptive-analytic method, the present article has studied the views and opinions of these two theoreticians concerning the aforementioned concepts. The findings of the research show that, despite the literal relationship between absolute state and absolute guardianship, there lies sharp distinction between these two theories in terms of both their principles and concepts (meanings) and their conceptions of the key elements of the constitutional law. Authoritarianism, non-commitment to the rule of law and securization of the social atmosphere are the implications of the Hobbesian theory of absolute state while these disapproved implications have no place in the idea of the absolute guardianship.

The present research aims to explore the theory of the guardianship of the jurisprudent in the political thought of AyatollÁh Sayyed ÝAli ÓabÁÔabÁī. The research method is descriptive-analytic and is chiefly based on the documentation of the two books “RiÁḍ al-MasÁÞil ” and “SharÎ MukhtaÒar al-NÁfiÝ”. The theory of the guardianship of the jurisprudent, the rule of the jurisprudent, jurisdiction of the jurisprudent, ideal and non-ideal forms of government in the political thought of the SÁhib RiÁÃ, are the key subjects of discussion in this research work. The findings show that the idea of government is essential in the political thought of Sayyed ÝAli ÓabÁÔabÁī. He takes government to be of two forms: government by tyranny and government by just ruler. The government by just ruler is the ideal form of government headed by the Prophet Muhammad (peace be upon him) and the Infallible Imams (peace be upon them). By contrast, there is government of tyranny with which people are strongly prohibited to interact. According to Seyyed ÝAli ÓabÁÔabÁī, in periods of Occultation, a competent jurisprudent is vested with authority and the relationship between religion and government is essential. The enforcement of the precepts or injunctions rests with the rule of a Muslim jurisprudent. Accordingly, Sayyed ÝAli ÓabÁÔabÁī does not admit to confer the affairs of society to a government of tyranny. On the other hand, he maintains that the duties and responsibilities to the Islamic community in periods of Occultation should not be abdicated. Therefore, from the viewpoint of Seyyed ÝAli ÓabÁÔabÁī, the jurisdiction of the jurisprudent guardian is not only extensive but also as identical with the jurisdiction of the Infallible Imams (peace be upon them).