نشریه مطالعات فقه سیاست
پیاپی 5 (بهار و تابستان 1402)

One of the most important issues that the Sharīʿa-based legal system must have an analysis and solution for is the "relationship between jurisprudence and law". This issue has been raised in Iranian society since the beginning of the constitutional period, and it is still being raised with more complexity and ambiguity during the Islamic Republic of Iran. There are several questions around the relationship between law and jurisprudence. Questions that need to be answered from the point of view of jurisprudence using the inferential method. What makes the analysis of the relationship between jurisprudence and law difficult are the fundamental differences that exist between these two fields. The differences that caused some jurists to vote against the illegitimacy of legislation (taqnīn) during the constitutional era. The rightness of the said vote is the issue of the present study.In this article, the author has attempted to first outline the "relationship between jurisprudence and law" considering the differences between these two. Then he has proved the legitimacy of legislation by using solutions, explaining the extent of the presence of jurisprudence in the law according to the requirements and atmosphere of society. Since in the legislative position, conflicts do happen between the fatwa to be followed and the approved law, three possibilities are expressed in order to resolve the conflict cases based on the jurisprudential foundations and the method of ijtihad.

One of the challenges facing the legislative system concerning lawmaking is that the law is in conflict with some fatwas of Shiite jurists. Under this issue, another issue called "standard fatwa" is raised, which has been discussed from the point of view of jurisprudence since the introduction of modern law to the Islamic world. Just as this topic was the place of discussion among jurists during the constitutional period, it has also been taken into consideration in this current era and in the legislative process of the Islamic Republic of Iran, with many opinions and theories having been invented around it. Presenting a legitimate and efficient theory about "standard fatwa" can solve some of the existing challenges of the legislative system and help facilitate the legislative system. In this article, which relies on library resources and analytical-ijtihad method, four points of view are presented. Two views are extracted from the words of Sayyid Muḥammad Kāẓim Yazdi, and the third view is the theory offered by Martyr al-Sayyīd Muḥammad Bāqir al-Ṣadr, a theory which has been criticized by the succeeding generation of scholars. Finally, the preferred point of view is explained based on the accepted narration transmitted on the authority of ʿUmar b. Ḥanẓala and marfūʿa tradition of Zurāra. In this theory, "famous contemporary fatwa" aims to provide a solution for the legitimate analysis of "standard fatwa".

The jurisprudence of legislation, as one of the added jurisprudences in the contemporary era, like other jurisprudence, has its own system of issues and problems, a system of subjects that integrates the jurisprudential knowledge of the jurist into the matter of "legislation". One of the questions raised by the supervisor of this field of knowledge is the question concerning its "methodology"; does this field of knowledge have a different methodology from conventional jurisprudence? Since Imami jurisprudence has a long history and is characterized by scientific discipline, is it possible to use the same approach and method in the jurisprudence of legislation?In this article, with the conceptualization of jurisprudence, legislation and the relationship between the jurisprudence of legislation and political jurisprudence and paying attention to the theological foundations of the jurisprudence of legislation, the author tries to highlight some methodological considerations that the researcher in the field of jurisprudence must pay attention to while using the "Ijtihad method". Based on the considerations made, the method of ijtihad in legislative jurisprudence cannot be the method of ijtihād that is used in conventional jurisprudence, but in this field, two very important points should be taken into account: One, forming a signification network; second, paying attention to the texts that show the intentions.

Governments in the international arena are bound to face their adversaries, and throughout history, war with the adversary has been one of their most important concerns. The Islamic State has no escape from this confrontation, and to limit this confrontation, it needs measures that are determined by political jurisprudence. The current research has taken the question of the legitimacy or illegitimacy of the cooperation of the Muslim state with the hostile non-Muslim state into consideration.  It has tried to find the answer to each of the two perspectives about the principality of war or peace using the analytical-ijtihad method. The findings of this research show that the Qur'anic evidence of the principality of war cannot prevent the cooperation of the Islamic state with the hostile state. As per this point of view, cooperation with non-Muslim adversaries is an "emergency situation" based on which the ruler of the Islamic State can allow the legitimacy of interaction with this group of adversaries in order to secure the interests and benefits of the Islamic State in such a situation. However, when it comes to principality of peace, war as an emergency that is conducted to curb the evil of the enemy or the obstacles to the awareness and guidance of non-Muslim nations. Therefore, in the event that the obstacle is removed, cooperation is legitimate.

Governments in the international arena are bound to face their adversaries, and throughout history, war with the adversary has been one of their most important concerns. The Islamic State has no escape from this confrontation, and to limit this confrontation, it needs measures that are determined by political jurisprudence. The current research has taken the question of the legitimacy or illegitimacy of the cooperation of the Muslim state with the hostile non-Muslim state into consideration.  It has tried to find the answer to each of the two perspectives about the principality of war or peace using the analytical-ijtihad method. The findings of this research show that the Qur'anic evidence of the principality of war cannot prevent the cooperation of the Islamic state with the hostile state. As per this point of view, cooperation with non-Muslim adversaries is an "emergency situation" based on which the ruler of the Islamic State can allow the legitimacy of interaction with this group of adversaries in order to secure the interests and benefits of the Islamic State in such a situation. However, when it comes to principality of peace, war as an emergency that is conducted to curb the evil of the enemy or the obstacles to the awareness and guidance of non-Muslim nations. Therefore, in the event that the obstacle is removed, cooperation is legitimate.

Security governance is one of the chapters of governance jurisprudence and governance jurisprudence is one of the chapters of political jurisprudence. In the philosophical realism approach to security and in the three sides of security, threat and power, security is a reality that indicates possibility and durability in social relationships and structures, and political security is one of its cases. The main question of the research is: What does the punishment of apostasy signify for the rules of security governance?? On the one hand, the lack of a specific background in this regard and on the other hand, the need to analyze this issue in the field of governance indicates the necessity of answering this question. The research has been conducted based on library resources in terms of collection, and in terms of jurisprudence, it is based on the rule of declarative ruling, one of the rules of the methodology of the jurisprudence of the system.   Based on the conclusion drawn from the evidence, the jurisprudence of security governance is organized with seven defining rules and general defining criteria. These criteria are power, honor, unity, justice and fairness, mutual communication, resistance and participation. The defining types include rightful security, disciplinary security, and treaty security. The general issues of obligation include, religion, property, diseases, souls, family honor and the system. The political implication of the punishment of apostasy in relation to rebellion is the obligation to protect the public interest and the security of treaties. Its cultural implication is the obligation to preserve religious cultural identity as an example of rightful security, and its social implication is the obligation to maintain the system, an example of which is police security. These indications are based on the relationship between apostasy, security and jurisprudence of the political system, which is discovered in the middle of the relationship between the system and the problem.