نشریه حکومت اسلامی
سال بیست و ششم شماره 2 (پیاپی 100، تابستان 1400)

Natural calamities and certain epidemic diseases are as old as the human history. Nobody alone can cope with natural events such as floods, earthquakes, and epidemic diseases like Coronavirus disease. To cope with them, firm decisions must be made and all governmental facilities should be made use of. The question arises whether the Islamic government undertake responsibilities and perform its duties in these conditions or not. Or the case may be that fiqh does not place any responsibility for these things on the government. According to a set of traditions (riwÁyÁt), it is incumbent upon everybody, including members of the government, to make all their efforts to take care of Muslims’ affairs and resolve their problems. As some Muslim jurists (fuqahÁ) have explicitly stated, taking care of the general affairs of the Muslims are intended by the traditions, and in view of the fact that in the case of social or natural events, Muslims are in more need of help than any other time, they cannot be helped but by their government. Furthermore, regarding the fact that the measures taken by the state are definitely part of the public interests, according to the principle of expediency in Islamic fiqh, the government should assume responsibilities for ensuring public interests.

One of the foundations of the Islamic government is the legitimacy of its laws and legal system. The governing laws in society are legitimate as long as they have no least inconsistency or contradiction with the religious prescripts (laws) and the Muslim jurists are those who deduce the religious prescripts from legal evidence and issue them in the form of jurisprudential fatwas. Therefore, a law is legal when it does not contradict with the judicial decrees(fatwas). However, the judicial decrees of the Muslim jurists as regards to a single subject-matter can be different. Now the question arises as to which of these judicial decrees can be a standard or criterion in legislation. Drawing upon the descriptive-analytic method, this article holds the view that many possibilities in the realm of the standard judicial decrees may fall into the state of confusion in such a way that scholars have put the individualistic jurisprudence the subject of their discussion while according to the thesis raised in this essay, the society-based jurisprudence should constitute the basis for the recognition of a standard judicial decree. In this connection, this article seeks to introduce the society-based jurisprudence as the main context for deducing standard judicial decree. It also makes mention of this issue that no judicial decree can be set as a criterion for legislation and that the judicial decree can be a standard one when it is derived from the society-based jurisprudence and can thus be characterized as being consistent with other judicial decrees, being able to resolve the problems and being in correspondence with the objectives of the Law (shariÝah).

Political science studies indicate that the development of a society depends upon the following factor: ensuring security, whether of land, water or air borders. Preserving borders in the Islamic political system is of great significance. There exist Qur’anic verses and traditions in Islamic doctrines that directly ask Muslims to preserve borders (frontiers) of Muslim countries. ImÁmiyyah or Twelvers’ figh attaches great importance to border guards and maintenance of Muslim territories. However, despite the eminent position of border guards in the political system of Islam, the issue in question has remained a jurisprudential rule at the level of a recommended one. However, in view of the wide-ranging and important discussion of border guards in Islam, the issue can be discussed as a jurisprudential rule. From among the cases where a qualified competent Muslim jurist can exercise his authority in enacting laws is the use of ‘jurisprudential rule’. The important feature of this jurisprudential rule lies in its wide application. With this jurisprudential rule in hand, various issues can be tested against this rule which, in turn, helps to discover the desired legal prescript (judgement) in the least possible time. Drawing upon the descriptive-analytic method and based on the Qur’anic, traditional, rational sources as well as jurisprudential discourses, in this article an attempt has been made to stablish the fact that protecting borders (border guards) is considered obligatory in the ImÁmiyyah jurisprudential system and to cast light on the discussions raised on the rule of border guards of Islamic countries.

The most important issue underlying other subjects of discussions in the field of security is the source of security. Each of the security schools lays emphasis on a subject as the source of security as far as their cultural and value system are concerned. In the meantime, political security is one of the most important aspect of security into which researches have been conducted by Muslim scholars to explore the sources of security on the basis of the individualistic and state-oriented approaches. To further the aforementioned researches, this article seeks to explain the Qur’anic and traditional foundations of the source of security in the security system of Islam on the basis of the two approaches mentioned above. Drawing upon analytical-inferential method and with regard to the theory of Barry Buzan’s political security, the Qur’anic and traditional statements concerning the three elements (representations) of political security have been deduced. The findings of this article, which are based on the constituents of the state-oriented approach to political theory, show that in the Holy Qur’Án and in Islamic traditions there are statements which propose positive and negative rules that provide evidence of the consolidation of three representations of the Islamic state as the source of political security which can be summarized as Islamic ideology, Islamic governmental institutions, Dar al-Islam, and countering or eliminating any threat to them.

To preserve the religious culture and the identity of the Islamic society, Islam had developed two approaches: positive and negative, i.e. association (friendship; tawallÁ)) and disassociation (tabarrÁ). The first approach aims to establish social correlation and to consolidate Islamic culture from within and the aim of the second one is to preserve Islamic culture and its independence against any external threatening factors. The negative approach becomes operative through varying positive and negative strategies and almost all negative strategies are based on passive resistance. The aim of this research work is to cast light on the passive resistance strategies and to apply this kind of resistance in the process of policy-making in the Islamic society. The method upon which this research is based is descriptive- analytic. Passive resistance strategies take different cultural, political, social, economic, and military forms. From among the most important forms of passive resistance, one can refer to boycotting media and anti-religious and immoral cultural products, boycotting cultural resemblance, refusing to adopt models from foreigners, rejecting their cultural symbols, cultural migration, building up resistance at any price, issuing judgement on the impurity of the idolators (atheists), forbidding to marry the atheists, showing social disrespect, imposing social restriction, rejecting foreigners’ social dominance, forbidding dependence on foreigners and spying for them, imposing sanctions against trade or military relations with the enemies if these relations may strengthen them.

Regarding the fact that the Islamic Government in Iran has not enjoyed longstanding executive experience, it seems to be necessary to study the structural requirements of the Assembly of Experts for the Leadership. The articles 107 and 109 of the Constitution of the Islamic Republic of Iran make clear that, on the whole, the functions of the Experts are important as far as the Islamic system is concerned. Identifying the functions of the Experts in the field of electing and declaring the Supreme Leader, the mentioned articles in the Costitution show how significant and extensive the concept of expertise is in the Constitution. “Supervising”, which, in fact, finds its real, or rather, legal and jurisprudential expression in monitoring the current leader to make sure he continues to meet all the criteria listed in the Constitution, has a close relationship with the functional nature of the Experts and with the explanation of the position of the Experts, as they have been authorized by the laws to vet candidates for ijtihÁd proficiency, as well as the Muslim Guardian Jurist (wali-e faqih) in the Islamic system. The authority of the Assembly of Experts for the leadership is that of a suspensive (taÞliqÐ) kind. Likewise, the establishment of the think tank as suggested to the Assembly of Experts by the Grand Leader, AyatullÁh Khamenei, and the explanation of the major and significant approaches, including approaches to the fundamental issues of the government and the nation as well as the encouragements to this institution to play a more active and strategic role, are among the cases which help to explain the adopted approach to the issues in this article. In this connection, the writer tries to cast light on some points which make clear the objectives the Assembly of Experts follows to come closer to its Islamic foundations as much as possible.

According to the article 167 of the Constitution, “the judge is bound to endeavor to judge each case on the bases of the codified law. In case of absence of any such law, he has to deliver his judgement on the basis of authoritative Islamic sources and authentic judicial decrees (fatwas).” To this article certain fundamental objections have been levelled which are said to come from a legal formalism. Legal formalism based on the positivistic school of law (legal positivism) and mechanical legal philosophy considers formalist juridical reasoning as the only method of juridical reasoning irrespective of any external factors and takes the rule of law as dependent on the fulfilment of this method of reasoning. However, professor Herbert Hart, as one of the leading political philosophers of the modern law, while rejecting the theory of the mechanical law, and admitting the defects of the law, holds the view that judges should have innovations in their legal decisions and that judges have certain kind of jurisdiction over the cases. Therefore, this article provides the reader an interpretation of the rule of law on the basis of Hart’s theory of law, which meet the objections levelled at the formalistic nature of the article 167 of the Constitution on the one hand, and it can be regarded as a progressivist approach in facing defects of the rules and laws on the other.