نشریه حکومت اسلامی
سال هفدهم شماره 4 (پیاپی 66، زمستان 1391)

Different views about how to administer human societies were presented throughout the history. One of them is the theory which has taken the form of guardianship of religious jurist. Some doubts have, for some reasons, been raised on this theory, the most important of which is related to the guardian jurist’s discretion and lack of defined limits for it. Furthermore, it is assumed that this theory makes the society move towards despotism. This study seeks to dispel such doubts by expounding the anti-despotism elements in the theory of guardianship of religious jurist. The theory of guardianship of religious jurist makes known the aims of government and the qualifications which the guardian religious jurist enjoys, and each of these two can play a major role in blocking any possibility of despotism. Also, this theory has prescribed some limits for the guardian religious jurist’s conduct as distinct from the features governing the despotic rule. Such limits as divine laws, positive laws, justice, expediency and public supervision are a good case in point. In addition to the framework established by these conditions, the guardian religious jurist is responsible for supervising the performance of the officials of all ranks in the political system to refrain from leaning towards the features of a despotic system. It is worth noting that a descriptive-analytical method is used in this research.

Among the new fiqhi questions which receives much attention is the idea of ‘the discretionary sphere of the law’. There are some spheres in the Islamic law which are termed as the discretionary sphere of the law. The importance of the existence of such spheres is not known but the question which has been a subject of speculation and inquiry is whether or not the Islamic law has dealt with it and whether it represents one of the subjects about which God has said nothing or about which no obligatory judgment has been pronounced and a judgment of which is determined by a Muslim Jurist. Martyr Sadr fiqhi thoughts can contribute to the understanding of this question. Therefore, the author attempts to give a clear picture of the discretionary sphere of the law in the light of Martyr Sadr’s thoughts.The claim rests upon the fact that there is a sphere wherein there is no obligatory judgment and this will enable a Muslim ruler to deliver governmental judgments by which the need and interests of Muslims and Muslim nations will be met, thus delivering governmental judgments can make up for obligatory judgments. Of course, any obligation or prohibition resulting from a judgment delivered by the Muslim guardian jurist is not regarded as part of the primary judgments of religion which are ascribed to the faqih. Rather, it is considered as a governmental judgment given by faqih to achieve certain purposes, even though there is no doubt about the legality of these judgments and necessity of abiding by them.

The measures taken in the domain of enjoining good and forbidding evil in the past three decades bear witness to the fact that this legal and Islamic issue has not acquired the status which it ought to have in the Islamic Republic of Iran. The implementation of this important article depends on the extent to which it is institutionalized and plentiful evidence can be offered in this concern. Article 8 is also considered a legal basis for setting up a policy-making institution in this field. Setting up on institution or organization of this kind requires a number of things which are as follows: comprehensiveness of each of the three pivotal issues stipulated in the article 8: direct relation with the Supreme Leader, independence from the three powers of the government and having a suitable executive guarantee. This paper seeks to confirm the necessity of setting up an organization for enjoining good and forbidding evil and explains its duties and discretion. It also stresses that such an organization should have a legal status and become a suitable popular base. This organization should have certain policy making, planning and coordinating strategy in the realm of enjoining good and forbidding evil and should not interfere with affairs of other organizations, institutions and associations. Such an organization can guarantee the implementation of the article 8 and, of course, the legal actions taken by the Assembly of Experts, the three powers (the legislative, the executive and the judiciary) can play a key role in this respect.

One of the basic legal political institutions is the institution of ‘election’. Today, this institution is mainly concerned with choosing governors and evaluating people’s acceptance of the political system in different ways. In political literature, the number of elections, the elected high-ranking authorities and the extent to which people can take part in voting indicate both people’s acceptance of the political system and its soft power in the eye of other states.This paper deals with a number of issues relating to election from the viewpoint of political Islamic fiqh, such as the nature of and fiqhi injunction on participation in election and its fiqhi principles. Theoretically, this paper argues that, according to fiqhi viewpoint, the nature of election represents as ‘injunction’, and it is incumbent – by way of imperative or individual duty – on everyone to take part in the elections if certain conditions are fulfilled. This obligatory injunction can take the form of either imperative (individual) duty or collective (sufficient) duty. The basic principles of this Islamic injunction are: necessity of safeguarding the Islamic government, enjoining good and forbidding in certain general instances, necessity of contributing benefaction and piety, necessity of attending to Muslims’ needs and, last but not least, rational proof.

According to the fourth article of the Constitution, all the rules and regulations which govern the system of the Islamic Republic of Iran have to be consistent with the Islamic standards. In fact, this article indicates the necessity that all governing laws be based on the standards of the system of the Islamic Republic of Iran. The words ‘generality and applicability’ are among the terms used in the science of principles (Ilm al-Osul) which the faqihs (Muslim Jurisprudents) of the Assembly of the Experts have intelligently included into the fourth article when drawing up the Constitution. The generality and applicability stipulated in the mentioned article are used to explain the extent to which the rules and regulations of the legal system of the Islamic Republic of Iran are Islamic and show that the governance of Islamic standards embraces not only rules and regulations but the articles of the Constitution as well. In other words, besides the necessity of consistency of the articles of the constitution with Islamic standards, all the items, notes and clauses of any law or decision governing Islamic republic government have to be consistent with the Islamic Law.The consistency of rules and regulations with Islamic standards is applicable to the rules and regulations which were approved before and after the Islamic Revolution of Iran. It also includes any rule which has an executive guarantee that comes under the title of rule and regulation.

There has been heated disputes among thinkers and commentators over the scope of the doctrine ‘Ummat’ which has its roots in the Qur’an. The main concern of this study is to expound the scope of the concept of this term with regard to multi-cultural societies.The term ‘multi-cultural’ societies is a relative concept and the discussion can be based on two genera assumptions. The first is that the community is made up of a variety of ethnic groups having different cultures and speaking different languages and all of them are Muslims. The second is that the community is made up of Muslims and non-Muslims. Consequently, the area of meaning of ‘ummat’ varies in relation to each of the mentioned assumptions. If the word ‘ummat’ is to be associated with certain faith, it includes only Muslims and thus this will be consistent with the first assumption. In this case, the community in the second sense cannot come under the word ummat, as a result of which it will be difficult to create what may be called “a single nation” within these societies. But when the idea ‘ummat’ is taken to have a wider sense than associating it with faith, then the ideological gap between Muslims and non-Muslims living within a multi-cultural society will not be an obstacle for changing them into, or considering them as, a single community

Regarding the most important duty of the Islamic Consultative Assembly defined by the article 71 of the Constitution, this Assembly has a general eligibility to enact laws on different issues. There are certain restrictions defined in different articles of the Constitution which are placed on the law-making duty of the Consultative Assembly. For instance, it is stated in the article 71 that the Islamic Consultative Assembly is not allowed to enact laws which are inconsistent with the official religion of the country or the Constitution. This paper seeks to point out to these restrictions and show how this general eligibility is limited by legal principles. It is clear that explaining this issue through defining the relations of the Assembly with the other powers, especially executive power, and solving the legal problems of the political system are of great significance. Though this assembly has general eligibility in law-making, it – like the other powers – is subject to restrictions due to the governance of law. These restrictions have their roots in essential restrictions of the jurisdiction of the Assembly in law-making, the principle of superior position of the Constitution, the structural restrictions of the Assembly and eligibility of other authorities to make laws.