نشریه حکومت اسلامی
سال نوزدهم شماره 1 (پیاپی 71، بهار 1393)

The principle of ‘preserving the existing Islamic system’ or ‘disorganizing the existing Islamic system’ has been extensively referred to by Muslim jurists in their jurisprudential (fiqhi) discussions. This suggests the fact that this principle, as a jurisprudential principle, has gained wide applications. The principle under discussion is validated as it is thought to be “rationally necessary” or “backed up by the wise legislator’s rational ratification.” The principle expresses itself in a social system with its various aspects, though sometimes it has been applied in the sense of ‘political system’ or ‘Islamic territories’. This article seeks to cast light on the applications of this principle in Islamic jurisprudence (fiqh) and its wide scope in this discipline. The ‘principle of disorganization of the existing system’ in its current sense, though it seems to assume a secondary designation which governs in the realm of primary prescripts, nevertheless, if it is looked at carefully, it shows that it can be used as a basis for some other jurisprudential principle or judgment such as ‘IsÁlat al- Ñihhah fi FiÝl al-Ghayr, the principle of ‘Yadd’[adversus extranoes vitiosa possession], the ‘principle of QurÝah’, the principle of ‘ Sowq al-Muslimin’ or ‘Muslim Market’, etc. and finally, in some other cases, it is rendered as a basis for people’s social tights and obligations as well as for determining its scope.

‘Representation’ is an institution which has come into existence and developed in the cultural and social context of the West and then has found its way into other societies. Regarding the nature of representation in political fiqh three theories have been developed thus far: some believe that the relation between people and a representative is like the relationship between people and a magisterial (naqib) or a deputy (Ýarif). Others consider representation as a concept that can be applied to someone who acts as an agent on behalf of the qualified Muslim jurist (faqih) who has the authority over Muslim community. Still others, who constitute the majority, have taken representation to correspond with ‘contract of mandate.’ Though it seems that, in the Constitution, representation corresponds more with the thesis of agency on behalf of the Muslim qualified jurist in authority and that the term ‘representation’, as included in the article 67 of the Constitution, has been carelessly used, nevertheless the fact that all characteristics and requirements of representation are not fully applicable to thesis of agency on behalf of the Muslim qualified jurist in authority, on can take the concept of representation as having a conventional ratified nature or as an independent legal innominate contract between people and the one who is elected by them. This contract has its own rulings, terms and conditions and consequences which are binding due to the determined laws, and as long as it does not have any contradiction with the Divine Law. In an Islamic government, the legitimacy of acting as a representative is dependent on the Muslim qualified jurist’s delegation and confirmation which is enforced by the Council of Guardians.

The basic principles of human rights such as ‘human dignity’, ‘human equality’, ‘human life’ and ‘human freedom’ are the major concerns in the Islamic judicial system. Through suggesting common discourse for all human beings as well as rejecting any form of sovereignty, Islam has offered certain universal human rights which can pave the ground for peaceful coexistence. Human rights are characterized as having the following qualities: they are demonstrable, revealed and divine; on the basis of a real anthropology, they are purposeful, truth-oriented and duty-bound; based on human creation and nature, they are realistic, all-embracing, coherent, consistent, having internal and external sanction, being ethical, universal, perfectionist rather than individualistic and socialistic, proportional in term of sexual rights and attentive to human rights in emergencies.

The issue of social solidarity and unity is regarded as one of the current and most serious issues and one of the major concerns of sociology in the field of sociology of consensus. An investigation into this issue takes on an added importance especially in regard to societies of ethnic and cultural disintegration. Since the experience of establishing an Islamic government in Iran on the basis of the principle of the ‘Guardianship of the Muslim Jurist’ is a first-hand experience only over the three last decades, it is necessary to make a study of the structure and function of the institution of Guardianship of the Muslim Jurist as well as the important role the Supreme Juristconsult plays as a leader in fostering social solidarity either in theory or in practice or as a matter of experience. The religious status and background, along with the political management, of the institution of the Guardianship of the Muslim Jurist, as stipulated in the Constitution of the Islamic Republic of Iran, has caused this institution to be of pivotal role in fostering social solidarity among the people of Iran and in making the Iranian society promote their national union and solidarity around the strategic management of the Supreme Leader. Having taken a functionalist approach toward the issue in question, this article seeks to show that the Guardianship of the Muslim Jurist, as a religious and social institution, is capable of making the best of its potential and actual capabilities, stipulated in the Sacred Law as well as in the Constitution of the Islamic Republic of Iran, in promoting and preserving social solidarity and unity. In addition, the article studies the aforementioned function of the institution in question from the legal, doctrinal, and historical point of view.

The present essay seeks to make a comparative study of the political thoughts of the two distinguished ShiÝi faqihs (jurists), AyatollÁh NÁÞÐnÐ and AyatollÁh Shahid Sayyid Muhammad BÁqir al-Ñadr. An attempt has been made in this research work to cast light on the points of similarity and difference between their views and opinions. The chief points of similarity between their political views lie in their interpretation of the origin of political power, defense of the existence and identity of Islam and the belief in the role the Muslim community in the attainment of political system and in the national will in the fulfilment of divine aspirations. Their differences of opinion are perceptible in such issues as the basis of legitimacy, nature of the Islamic government, the extent to which a Muslim jurist can exert his influence and the rule of Muslim jurists and the kind of approach and view a Muslim ruler can take in running social affairs. The important conclusion one can draw in making a comparison between the views of the two great Muslim jurists is that, despite their basic similarities between the views and opinions of these two jurists, their differences of opinion cannot be overlooked. However, their views, when compared, show that the existing differences between their views and ideas are due to the crises they were faced with during their lifetime. Being influenced by the changing circumstances and special crises of their time, each of these two scholars have sought to propose a good, though different, solution for the problems they faced. This has brought about differences of opinion in regard to their political theories.

The principle of ‘NafyÐ SabÐl’ signifies the legal rejection of any dominion or rule by the faithless over the faithful [Muslims]. In this sense, all Muslims have to be honored and dignified, thus not being subjected to the dominion of the faithless and their abasement. This does not mean that one is not allowed to establish relations with them, but that one should avoid having any relation that may result in the acceptance of their rule and dominion over the Muslims. The principle in question implies two objective assumptions: the first one is that if the mentioned principle is applied, the honor and dignity of Muslims can be preserved, thus paving the ground for the progress and development of the Muslim societies. The second assumption is that any relations with the faithless and accepting their rule and sovereignty will surely result in an ever-increasing scientific and technological dependence of Muslim countries on the developed countries which, in the end, avails nothing but backwardness and retardation, thus subjecting the Muslim community to the cultural invasion.This article, aiming at showing the capability of fiqhi principles and rules in creating various systems in the Islamic government and civilization, establishes the fact that the principle in question lays the foundation of two essential elements in Muslim communities: the first is that it paves the way for Muslims to promote and maintain their unity which, in turn, is one immediate and contributory factor in stimulating ongoing development. And the second is ‘autonomy’ that is applicable in establishing international relations between Islamic countries. These two are considered to be the essential and fundamental constituent elements of development without which it is impossible for the Islamic countries to witness that any significant developments taking place in their social affairs in this modern time.

Societies owes their development and prosperity to the policies applied in various ways. A government’s adoption of grand plans requires it to embark on exploring religion and the divine Law as the most genuine source for the purpose of running Muslim communities. Hence the emphasis laid by the ordinances of the Law (canonic laws) of Islam for preventing reductions in population growth has to be given priority among the plans an Islamic government has to implement. In the present article the reason why the Islamic government interferes in the issues and problems relevant to the population growth rate has been studied in terms of its correspondence to the principle of ‘Rejection of the Faithless’ Dominion over the Faithful’ and that of ‘Preserving Islamic Government’. This has provoked some discussions as to the encouragement to marriage at the legal (full) age, polygamy (custom of having more than one wife at the same time) out of necessity, reduction of irresponsibility, rejection of celibacy, paving the ground for women employment opportunities and laying emphasis on the maternal role of women for the sake of improving situation for the population growth rate and attainment of desired population growth rate in line with the Islamic legal precepts.