نوع مقاله : مقاله پژوهشی
نویسنده
گروه حقوق و فقه اجتماعی، پژوهشگاه حوزه و دانشگاه، قم، ایران
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسنده [English]
This article, titled "Examining the Capacities of Shiite Jurisprudence in the Field of Legislation," addresses one of the most fundamental questions in the domain of political jurisprudence and public law in Islamic societies. Given the established principle of the exclusive legislative sovereignty of God in Islamic thought, and the belief that the Sharia provides rulings for all events (“There is no even unless there is a ruling on it”), a
key question arises: Is the government in an Islamic system authorized to engage in "legislation" in its modern sense, that is, the establishment of general and binding regulations by competent authorities (such as the legislative branch)? In other words, does a "vacuum" exist, a space free of Sharia rulings (minṭaqat al-farāgh), which the government can fill with positive laws, or is the government's duty solely to implement the fixed rulings of Sharia? This study, conducted using a descriptive-analytical approach and based on reliable jurisprudential sources (up to the Constitutional Revolution), aims to identify and clarify the historical background and latent capacities of Shiite jurisprudence in this area. The results of the research revealed that, in this area, there are at least two major and opposing views among Shiite jurists. The first view, rooted in a form of jurisprudential caution, denies any legislative right for the government. Supporters of this view, who became prominent during the Constitutional Revolution, argue that with the comprehensive and complete Sharia of Islam, there is no need for a legislative body, and such an action would be considered an innovation (bidʿa) and an opening of a door to challenges against religion. From the perspective of this group, the ruler's duty is solely to discover, announce, and implement the divine rulings, and they cannot impose a ruling that the Sharia has not established or make changes to existing rulings. The argument of al-Muḥaqqiq al-Ḥillī in Sharāʾiʿ al-Islām, where he states that "the current Imam does not obligate what is not obligatory" is a clear example of this approach, which limits the ruler's powers to alter the nature of Sharia rulings (such as converting a communal obligation into an individual one).
In contrast, the second view, which has a broader and deeper foundation in jurisprudence, recognizes certain guardian-ship (wilāʾī) governance powers for the ruler or government within the public sphere of society, grounding these powers in reliable religious sources. This article, focusing on this perspective, identifies and analyzes the jurisprudential capacities for legislation in several key areas:
- In discussions such as judiciary and jihad, jurists have extensively debated whether the Imam or ruler can, by issuing a decree, convert a duty that is inherently recommended or of communal obligation into an "individual obligatory" duty for a person or group. While there is disagreement regarding the judiciary, on the matter of jihad, jurists almost unanimously agree that, by the Imam's order, jihad becomes an individual obligation for specific individuals. This indicates that the ruler, based on public interests, has the authority to alter the status of a ruling in its implementation. This capacity can also be extended to other cases, such as assuming positions within a just government or even an unjust one (to preserve the interests of Muslims).
- In criminal jurisprudence, especially regarding crimes with optional punishments (such as muḥāraba or waging war against God), or in the domain of taʿzīrāt (discretionary punishments), the authority to make decisions is entrusted to the ruler. The ruler’s discretion in choosing from among punishments like execution, crucifixion, amputating hands and feet, or exile for a muḥārib (one who wages war against God), or determining the type and extent of punishment (flogging, imprisonment, or financial fines) in discretionary crimes, based on the nature of the crime, the criminal, and the interests of society, is a clear example of the right to legislate and establish a unified judicial procedure. This authority allows the government to create codified laws in the realm of punishments, preventing the dispersion of judicial opinions and the arbitrary preferences of judges.
- Throughout jurisprudence, issues such as anfāl (public property), public assets, umūr ḥisbiyya (matters necessary for society that the Sharia does not allow to be neglected), peace with the enemy, and the treatment of prisoners of war, are all considered within the powers of the ruler/government. Decision-making in these areas, which directly involve the administration of society and public interests, inherently requires the establishment of regulations and laws.
Ultimately, this research concludes that while some jurists, with a minimalistic view, consider the government merely as the executor of Sharia, a review of all the powers traditionally granted to the ruler (whether infallible or non-infallible) in classical jurisprudence leads to the general principle that Shiite jurisprudence possesses sufficient capacity to recognize the right of the government to legislate, albeit within a defined domain (the public sphere) and based on a specific framework (public interests). These powers provide a rich historical foundation for accepting the institution of modern legislation within an Islamic system, even though there may be differing opinions regarding the scope of this domain and the competent authority for enacting laws.
کلیدواژهها [English]
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