نشریه حکومت اسلامی
سال بیست و ششم شماره 4 (پیاپی 102، زمستان 1400)

Comparing the jurisprudents’ theoretical and practical approaches to the political system in the two eras, i.e. the Constitutional Revolution and the Islamic Revolution has led some authors to this conclusion that in the Islamic Revolution Era, jurisprudential speculations have chiefly adopted authoritarian approach to the existing political system. In this article, the validity of the above claim concerning authoritarianism, as attributed to AyatullÁh MuÞmin Qumi, has been studied drawing upon the descriptive-analytical method. On the basis of authoritarian reading of political system, it is shown that AyatullÁh MuÞmin has made use of the fundamental concept of legal guardian, Wali-e Amr, to establish, on the basis of five arguments, the wide scope of authority a legal guardian has in establishing his political sovereignty. In this article, the arguments for the authoritarian reading of Ayatullah Mu’min’s jurisprudential political theory is evaluated and the conclusion is drawn in the end that the guardianship of the legal guardian resembles what is called in political science the mixed government which consists of the reciprocal process of top-down and button-up authority.

Concerning the guardianship of the wealth liable for zakat, the generally accepted doctrine among Muslim jurists is that people can spend these collected properties for charitable and religious purposes determined in Islam. On the other hand, there is a relatively less widely accepted doctrine that holds the view that paying of the said wealth to the Islamic judge is an obligation. Grand Ayatollah Imam Khomeini’s statements in Tahrir al-Wasilah, while being congruent with the dominant doctrine, his words in his Al-BayÝ – which was later published – is in correspondence with the rather less commonly accepted doctrine. Drawing upon the descriptive-analytic method, and by means of data collection based on the library method and ducumentations, this article seeks to make study of the arguments for both sides, and to find an area of common ground between the two doctrines. The findings of the study show that there is some evidence for each of the doctrines. However, these arguments typically cannot take side with one of these doctrines and seem to be consistent with both in some way or other. The present research, having put forward two suggestions for removing the apparent contradictions between the arguments, looks at the possible soluion as well as the common ground between the two doctrines.

“Jurisprudence of the system” is taken to mean the discovery of main doctrines of Islam concerning various social subjects, though there have been controversies over its possibility or rejection. These controversies have their roots in two approaches to Islamic jurisprudence and Law, ShariÝah. Drawing upon the revisional-analytical method, this article seeks to show not only the strong theoretical foundation of Islamic jurisprudence but also the classification of the objections levelled at this sort of jurisprudence trying to meet the objections against the Jurisprudence of the system and to dispel the misconceptions in this connection. The major objections against the jurisprudence of the system arise from the fact that the existence of such a jurisprudence is difficult to find and that the possibility to arrive at this sort of jurisprudence is in doubt. This article, while exploring the arguments raised for and against this from of jurisprudence, tries to find answers to the objections and to recognize the possibility of the existence of jurisprudence of the system. The results of the studies show that differences of opinions and views in giving a definition for this new realm of jurisprudence result from varying mentalities which have found their ways into discussions on this subject. However, the above mentioned problem seems to be plausible in terms of the correlations and coherence as seen in rulings and the legal validity which is given by the Law-giver to the major religious doctrines.

Taking into account the differences among theoreticians over the problem of increase in population or decrease in population, this article explores to find an answer to this question that “what can be decided on the problem of human reproduction and population growth if this may result in undermining Islam and in threatening national security?” Drawing upon documentations and with reference to the Quranic verses and traditions, this article has been organized to explain the problem of childbearing and reproduction of generations based on the jurisprudential principles and various Shi’i jurisprudential systems in line with the dissemination of religious values in this modern age. Findings of the research indicate that upon careful deliberation on the collection of the Quranic verses and traditions, it can be claimed that the intellectual and strategic system of Islamic Law in the field of population in the from of a factual proposition and of a permanent policy, is nothing but the quantitative and qualitative multiplication of population which is intended to increas the power and authority of the Islamic community and to establish the Divine religion. Likewise, as reason dictates, one can detect the desirability of proliferation of population, and comes to the conclusion that birth control or population control, when resulting in undermining Islam and threatening the national security, is not permissible. On the contrary, it is necessary to proliferate population.

Muslim jurisprudents have taken Imamate as well as prophethood to be a divine grace and the philosophy of the existence of Imams as the ones who lead human beings to their utmost perfection, preserve religion and guide people to the right path. The Qur’Ánic verses bear evidence for the aforementioned unceasing divine grace. Without doubt, this divine grace operates with the formation of a monotheistic society cleansed of any atheism, hypocrisy and wickedness in which only Imam Mahdi (may God hasten his reappearance), the Promised one, reappears. The question arises whether or not the formation of an Islamic government in the Periods of Occultation is restricted to the presence of the Infallible Imam or that the Muslim community (Ummah) in the period of Major Occultation is bound to form it. The content of the Qur’Ánic verses indicates that forming an Islamic government for the fulfillment of divine precepts and administration of justice cannot be stopped and this is not dependent on the presence of Infallible Imams. What is more, an Islamic government, when formed in the period of Major Occultation, in its evolutionary movement, helps to fulfil the Divine Promise and the reappearance of Imam Mahdi (may God hasten his happy reapperance). Drawing upon analytic method based on the Holy Qur’Án, and with emphasis on the statements of the Supreme Leader, this article seeks to establish the fact that the establishment of Islamic government in the period of Occultation, in addition to be in correspondence with the divine nature and grace, helps to lead the Muslim community in the direction of ideal perfection and happiness, and paves the ground for the reappearance of the Saviour of humanity.

Immunity of lives and property and protecting diplomats’ residencies in the host countries, is among the accepted, and longstanding, principles in the international laws. Islam not only confirms but also puts emphasis on diplomatic immunities, including immunities of dignitaries and their residencies. In addition to studying cited jurisprudential evidence to prove the principle of diplomatic immunity, mentions will be made of the domain and limits of the immunities. Drawing upon the analysis of Islamic sources and data gathered from individual reasoning (ijtihÁd), it is shown that the importance of ambassade and those who act as representatives in foreign countries  as well as its inherent interests, is itself an independent evidence of the necessity of preserving the immunity of visiting foreign officials and foreign diplomats and their diplomatic residential areas and there is no need to cite certain pacts made between countries to establish such immunities, specially when such diplomatic immunities, as stipulated in the pacts, are subject to different laws and regulations. In spite of admitting immunities of such kind in Islam, they are not absolute ones. Rather, in some cases when the activities of diplomats, unlike their inherent responsibilities, are oriented towards preserving their own offices and interests, these immunities are lifted.

This article seeks to provide an answer to the question whether the obligation of enjoining the good and forbidding the evil merely concerns a behavior which is overt and identified without any need to keep it under constant surveillance or in some cases the aforementioned obligation is not bound to any overt behavior or activity. Having mentioned different areas of protecting privacy as in creeds, physical body, residence, communication, information, the present research examines the articles 3 and 5 of the law of protection of those who enjoin the good and forbidding the evil against the Islamic Law and the Constitution. The findings of the research, while emphasizing the fact that the illegitimacy of surveillance and intrusions into people’s privacy include those measures taken to enjoin the good and forbid the evil, show that taking into account the general application of the verses and traditions concerning the question of enjoining the good and forbidding the evil, the necessity of these two obligations is not limited overtly to the abandoning of religious obligations and commiting inviolable things and no elaboration is found in the words of the Musliim jurisprudents between the abandoning religious obligations or committing inviolable things overtly or covertly. Hence, it seems that the legislator has made a confusion between the impermissibity of surveillance and universalizability of enjoining the good.