نشریه حکومت اسلامی
سال بیست و پنجم شماره 4 (پیاپی 98، زمستان 1399)

The thesis of the guardianship of the Muslim jurist in the realm of Islamic knowledge can be explained from various perspectives. However, regarding the fact that the issue of the guardianship of the Muslim jurisconsult is not peculiar to one special area and it covers some such disciplines as theology, philosophy, jurisprudence, ethics, and mysticism, it can be also taken to be an interdisciplinary subject. This view of the guardianship of the Muslim jurisconsult as merely a theological, philosophical, juridical, ethical or mystical issue cannot lead us to a comprehensive explanation of the thesis in question. In this present research, in answering the question about the explanation of the thesis of the guardianship of the Muslim jurisconsult, an attempt has been made to evaluate the thesis in respect of three important considerations: the necessity of the Islamic government, the characteristics of the Islamic ruler, and the legitimacy of the Islamic government as some central questions in relation to the mentioned thesis drawing upon inductive-deductive method, and to illustrate its potentialities as well as shortcomings. In doing so, the necessity of giving a comprehensive explanation of the thesis of the guardianship of the Muslim jurisconsult in the system of Islamic knowledge can be made clear. In the light of such explanation, the proper status of this fundamental issue is known, the differences of opinion are reduced and the ground is paved for the viewpoints to become more and more consistent with each other.

The issue of cooperation between Muslim jurisconsults and despotic rulers and that of taking up governmental offices have been the subject of controversial discussions among the Muslim jurisconsults. Drawing upon the descriptive-analytic method, the present research seeks to find an answer to the basic question that ‘given the critical position of jurisdiction and exceptional status of a Muslim jurisconsult, who, from the Imamite (Imamiyyah) perspective, is regarded as the representative of the Divine Law in the period of Occultation, what decision can be made about the juridical cooperation between a Muslim jurisconsult with secular governments?’ The first thesis or answer to this question is that, on the basis of the preliminary legal decision, any sort of cooperation with the despotic ruler in a secular government is unlawful or forbidden. This decision can be established with recourse to some legal arguments. However, in cases of the appearance of secondary titles and consequently on the ground of secondary decision (rule), cooperation with such governments, including one’s taking up judicial office may become necessary. It is evident that this legal permit is bound to certain regulations of the secondary ruling as well as certain stipulations.

To settle arguments or conflicts of the parties, two judges may be involved, a judge who is appointed in the Islamic Law, and a judge who makes judgements on the basis of arbitration institution. The study of the legitimacy of this highly helpful institution to the judiciary constitutes the basic question of this article. There have been little disputes over the legitimacy of this institution among the Muslim jurisconsults, and finally its legitimacy has been generally accepted at the time of the Infallible Imams (peace be upon them). Regarding the possibility of personal judgement on the basis of arbitration institution when the Infallible Imams are not present, the well-known religious scholars, basing their arguments on certain traditions (transmitted reports), believe that if the judge is a mujtahid (a jurisprudent who can infer Islamic rulings from resources and is an authority on Divine Law), his decision is legally binding (operative) whether he is an appointed judge or he is a judge by arbitration; and if the he is not a mujtahid, his decision, even if there is a mutual agreement between parties on his decision, is not legally binding or operative. They have made the conclusion that the judge by arbitration can be attributed to someone who, despite of being qualified to occupy the office of a judge, is not appointed as a judge by the Infallibles (peace be upon them) when they are present. This article tries to cast light on the arguments for the legitimacy of judgement on the basis of arbitration institution. However, due to the fact that the traditions concerning the judge by arbitration are said to have general application, that no attention is paid to the distinction between presence and nonpresence of the Infallibles (peace be upon them) as an important factor as regards traditions, and that the assumption of the wise is to be taken into consideration, the commonly accepted view regarding the issue in question has been scrutinized. To sum up, taking into consideration the traditions quoted by Abikhadijah, the ability to make judgements (being a mujtahid) is considered not to be the necessary and special qualification of a judge by arbitration. In addition, in the Islamic government, when the Infallibles (peace be upon them) are not present, the legitimacy of this institution as the one which can settle the disputes has been established.

Maximizing the power which enables the Islamic state to exist, cooperate and interact with other nations at the international level is considered a critical issue by the Islamic state. The present research, having presented the question that ‘what capacity is there for the political jurisprudence to develop and strengthen the strategic frontiers of the Islamic state’, seeks to extend and establish the concept of frontier and territory of the Islamic state to include not only its own frontiers but also its strategic frontiers. In addition, it explores in jurisprudential resources the legal possibility of extending and strengthening these frontiers in order to guarantee the interests of this state. Frontier, as an abstraction, can help to bring into existence different sorts of the state’s spheres of influence which, in turn, enables the state to achieve its ideological and strategic ends. Drawing upon descriptive-analytic method, the findings of the research show that the strategic frontier is formed and determined in line with the states’ overall strategy in meeting their transnational interests. Conflict of interests necessitates the Islamic state to have and extend its strategic depth. Rulings in the Islamic political jurisprudence are of various capacities to extend and strengthen strategic frontiers. Such things as ‘ta’lif-e qulÙb’, i.e. uniting the hearts (for attracting people to Islam), and the governing conditions and the treaties of the Islamic state are considered to be the most important of these capacities.

The idea of ‘the necessity of preserving illegitimate political systems’ is based on the assertion that there is no concomitance between the necessity of preserving the political system and the legitimacy of a political system. In other words, the necessity of a political system is imperative and this does not depend on the legitimacy of the political system. Acceptance of this idea may have some implications, one of which may be that it not only justifies existing secular governments but also invalidates -- though unwillingly -- the legitimacy of rising against such governments. In addition to this, it overshadows the Islamic awakening or the Islamic revival movements of the countries in the region. Now, it is necessary to assess the relation between this idea and the proofs and principles of political jurisprudence. Accordingly, this question is raised that “from the viewpoint of political jurisprudence, what decision can be made about the idea of preserving the illegitimate political systems?” To answer this question, the emphasis should be put on both legal documents and the principles formulated by Imam Khomeini and Supreme Leader ÀyatullÁh KhÁmenei. The findings of the research show that the generalizations of legal documents and general statements and views of the jurisprudents who have great expertise in political jurisprudence not only do not justify the preservation of the illegitimate political systems but they all insist on the necessity of rising against such illegitimate political systems.

Cyberspace as a real space consists in the extension of human community in the context of information and communications technology. Taking optimal advantage of available investment opportunities of cyberspace for the revival of some foundations of the Islamic political system such as the Imamate-Ummah system is worthy of considerable attention. The chief question of this research is whether or not this new realm of human life can have the capacity of establishing a Imamate-Ummah system. Drawing upon the descriptive-analytic and library research methods, as well as the Internet in collecting data, this research, having explained the position of the Imamate-Ummah system in Islam by comparing it with the nation state originated from The Peace (treaty) of Westphalia and by making in-depth analysis of the features of cyberspace, considers it possible to establish the aforementioned system in cyberspace. Having illustrated the new study space, the research seeks to explain the most important implications of the establishment of Imamate-Ummah in cyberspace with emphasis on the pivotal role which the Organization of Islamic Cooperation can play in this regard.

Forming a government and its dependence on general and political authorities and agents is open to various rulings, from which one can refer to the fact that the necessity of implementing the Islamic rulings depends on the existence of a government. Given the conditions and qualifications, rulers and agents’ taking up the suggested office is open to dispute. However, this article seeks to examine the question of the resignation of the agents from the perspective of comparative jurisprudence and law. The importance and necessity of dealing with the issue in question lies in the fact that, due to assuming an absolutist approach and paying no considerable attention to the rights of people, and in some cases because of some intrinsic and institutional restrictions, the laws of the Islamic Republic of Iran regarding the resignation of different authorities such as leader, members of the parliament, president and ministers may cause disruptions in political system of the country. Taking a descriptive-analytic approach and a library research method, the present article seeks to criticize the absolutist approach to the resignation of authorities, and to offer some stipulations based on the findings from the comparative studies carried on jurisprudential and legal resources. These stipulations covers such ideas as keeping the Muslim community from harms and damages, taking actions according to the agreement reached by some leading party or institution, infringement of others’ rights and coming short of the full performance of a duty.