نشریه حکومت اسلامی
سال بیست و ششم شماره 1 (پیاپی 99، بهار 1400)

In the fourth article of the Constitution of the Islamic Republic of Iran, the most important function of a judge which is safeguarding Islamic laws and regulations has been stipulated as the highest norm as well as the most fundamental framework governing legal norms, and the jurisconsults (faqihs) of the Council of Guardians are obliged to safeguard and preserve the norms in legislation. In view of the fact that the religious supervision of all juridical rules is exercised irrespective of the source from which rules and laws are enforced, the analysis of the question what conclusion can be made of religious supervision of laws and regulations in terms of these opinions and views serves as the main question of the present research aiming to study the way in which the Shari‘ah criteria govern legal rules in the legal procedure of the jurisconsults working in the Council of Guardians. On this basis, the legal effects of each of religious opinions including the enactments of the laws before and after the Islamic Revolution have been explored drawing upon a library as well as analytical-critical methods in studying views and opinions. The findings of the research indicate that this sort of supervision has certain consequences which can be formulated in such statements as “religious opinions are applicable to similar cases”, “legal or religious opinions are binding”, “laws and regulations in contradiction with the Law or Shar‘ are refuted”, “legal opinions are certain and conclusive (decisive)”, “ legal opinions can be referred to as the authentic source when the law is silent.”

To survive and have a peaceful life with no turbulence in society, human beings have to make attempts to promote mutual cooperation. In the Holy Quran, Surat al-MÁidah, verse 2, God the Almighty says, “Cooperate in piety and Godwariness…”. This verse clearly states the issue of cooperation in society both from the positive aspect (performing good deeds) which finds its expression in the word ‘piety’ and from negative aspect (avoid doing evil deeds) which is expressed by the word ‘Godwariness’. Islamic government is considered as the typical example of ‘piety’, and legalism, democracy, public participation, etc., are good examples of ‘Godwariness’ all of which necessitate cooperation. The abovementioned verse can be reformulated as the ‘maxim of cooperation in piety and righteousness’ which is widely applicable to all strata of Islamic society. To serve this purpose, great jurisconsults have made use of the maxim in question in all jurisprudential matters such as ‘loan (lending), donation, enjoining the good, authority of just Muslim believers, found articles, and the like. Drawing upon a descriptive-analytic method, the present article has dealt with the explanation of the maxim of cooperation and its position in Islamic governance and government and has found out that the principle in question extends to include various problems of society and social, economic, political and cultural systems ranging from the formation of government, its preservation, survival, administration, to keeping order and legalism.

There is a current maxim in books of jurisprudence labeled as the ‘prohibition of cooperation in sin and aggression’ which has its root in the second verse of the Surat al-MÁidah. However, the maxim is, in fact, part of a universal (general) maxim designated as ‘cooperation’ which has not been fully taken into consideration as a result of a false conception of the whole content or implication of the verse, or rather, because of partial view of its content. In other words, only part of the verse has been brought into focus, which does not give a full view of the whole content of the verse. This problem, which is caused by a personal view of the jurisprudential arguments and rules, has brought about a misconception or a narrow conception of the arguments so that some of these arguments have been the subject of refutation. In this article, an attempt has been made to explore the functions and capabilities of the maxim of cooperation by studying it from the perspective of governmental jurisprudence. Furthermore, functions of the maxim are studied at four levels: formation of religious government, establishment of revolutionary institutions and organizations and lending support to them, legislation and personal obligations.

A society can take a course of development and perfection when the choice and appointment of its agents is made according to their qualifications and merits. For one of the most important factors in leading societies to happiness is to have competent rulers. In the history of human beings there are nations which have fallen into decline and destruction under incompetent rulers and kings and which have experienced happiness and welfare under competent rulers. One of the huge gaps in the world’s political systems is the lack of attention to the scientific qualification of the people who undertake to rule a nation or administrate governmental organizations. Drawing upon a descriptive-analytic method and on the basis of the principles in the Islamic Law, the present research has sought to explore the condition for the scientific competency and expertise of the administration in Islamic government. Having put forward the scientific capability and expertise as the necessary condition for choosing and appointing the administration of the Islamic government, it also has made a critical analysis of the present condition of the choice and appointment of the agents and administration of the Islamic Republic of Iran. The article comes to its end by pointing out the necessity of making revision of laws and regulations and of formulating comprehensive bylaws to regulate the management of the governmental organizations and institutions of the Islamic Republic of Iran.

The present research seeks to find certain paradigms or models of desired governance as a selected style of governance in Islamic governments. In fact, it seeks to recognize a sublime governance and its constituents for the promotion of national authority in different forms of Islamic governance. Finding paradigms of governance and choosing an efficient method in alignment with the nature of human beings which helps to meet the human beings’ essential material and spiritual needs seems to be inevitable when technological advancements and current requirements as well as the question of human beings’ guidance and happiness in the direction of perfection and evolution are taken into consideration. In this connection, to choose from methods and styles of governance which is at once of divine legitimacy and popular acceptance is what all nations desire. In this research work, the researchers have made a qualitative analysis of the content of earlier studies, their findings and results. These have made contributions to the existing knowledge of the issue in question, and offered a more comprehensive view of it. Having deduced the constituents of a sublime governance, the researchers have studied their role and their effects on its acceptance, efficiency, and common consent and political stability of society. If the sort of sublime governance with definite specifications mentioned above is enforced in any Islamic country, the national authority of that governance both at international and intranational levels will be guaranteed.

The concept of ‘contest’ is considered to be one of the most attractive one in the area of political action. With the supposition that democracy is accepted in the political thought of Islam, political contest, which is one of its characteristics, is also accepted. In order for a political contest to serve its expected functions, it should be set within the framework of rational rules and principles. According to human existential faculties, one can conceive various patterns of political contest from which the rational sublime political contest is acceptable. The principles governing political contest in the Islamic Republic of Iran should be derived from the high level documents. Preserving the respect for the dominant values in society, and religious doctrines, the priority of spiritual matters, not taking power and authority as the ultimate goal, meeting national interests, commitment to the norms of the Constitution and other laws and regulations, observing the independence of the country, preserving national security, preserving national unity, observing civil morality, and Zero-sum Game, are the principles resulted from the high-level documents in this fundamental research. The present research seeks to explain the legal, moral, and behavioral principles of rational political contest on the basis of high level documents and its correspondence with the draft of the Islamic-Persian progress aiming to complete the draft. The research method in this research work is a descriptive-analytic one.

The Constitution of the Islamic Republic of Iran in various cases (for example, Article no, 4 and Article no. 96) emphasizes the necessity of correspondence between laws and regulations and Islamic criteria (standards) on the one hand and their non-contradiction with the prescriptions and principles of the formal religion of the country on the other. Accordingly, there is no doubt that the legal system of the Islamic Republic of Iran should be based on the Islamic sources. However, in order to Islamize legislation in a proper way, it is natural that the mere acceptance of Islamic sources cannot be sufficient and it is necessary to pay close and constant attention to the way they can be applied. For in the process of secularization, too, the authority of religious sources is not obviously refuted and changes or modifications are made only in the case of the logic of understanding religious texts and their implications. Advocates of secularization approach, having accepted the interventions of religious texts in political affairs, have adopted a quite different approach from that of those who support the Islamization approach by making certain modifications in the divine or transcendental implications of traditional (textual) sources, presenting irregular modern interpretations, making use of instrumental rationality, deduction, and expediency which is not based on independent juridical opinion. Drawing upon a descriptive-analytic research method, the research seeks to explain how the application of the legislation sources from two viewpoints, Islamic and secular, has established the fact that the mere acceptance of the authority of religious sources in regulating a legal system is not sufficient and it seems necessary to take into account religious sources on the basis of independent juridical opinion, especially with regard to the most important ends of the Islamic Law in ratifying laws and selecting standard judicial decrees (fatwÁs).