نوع مقاله : مقاله پژوهشی
نویسندگان
1 استادیار، گروه فقه و حقوق اسلامی، دانشکده الهیات، دانشکدگان فارابی (دانشگاه تهران)، قم، ایران
2 دانشجوی کارشناسی ارشد، گروه فقه و حقوق اسلامی، دانشکده الهیات، دانشکدگان فارابی (دانشگاه تهران)، قم، ایران.
چکیده
کلیدواژهها
عنوان مقاله [English]
نویسندگان [English]
The present research aims to explain the possibility of realizing "dual legitimacy" in
the peace diplomacy mechanisms of the United Nations — meaning the simultaneous legitimacy of peace diplomacy mechanisms from the perspective of both Islamic jurisprudence (fiqh) and international law, which enhances the effectiveness of these mechanisms in Islamic countries. The research analyzes peace diplomacy mechanisms within both the jurisprudential and international legal systems. By redefining the concept of legitimacy and offering a more comprehensive understanding than traditional legitimacy — through applying the principles and frameworks of the jurisprudential system and comparing them with the international legal system — it leads to the presentation of a
new legitimacy model titled the "Theory of Dual Legitimacy." This research adopts a "comparative-inferential content analysis" method to examine the relationship between the jurisprudential rules of peace and the principles and mechanisms of peace diplomacy
from the perspective of international law. First, using content analysis, foundational jurisprudential texts (including the Qur'an, Sunnah, consensus, and reason) and key international legal documents (such as the UN Charter, major treaties, and international judicial practice) are carefully examined to extract and explain the rules and principles related to the concept of peace separately. Subsequently, applying an inferential approach, the foundations, objectives, conditions, and obstacles of these rules in both legal systems are deeply inferred and analyzed. Finally, through comparative analysis, these rules and principles are compared within the framework of the "Theory of Dual Legitimacy," and their points of convergence and divergence are identified.
In seeking answers to its research questions, this study, through examining the theory of dual legitimacy in UN peace diplomacy, has reached the following important results:
- The theoretical framework of the concept of "dual legitimacy" emphasizes the acceptance and validity of peace diplomacy mechanisms in two completely distinct domains — jurisprudential and international legal — and consists of two essential components: first, international legal legitimacy based on the UN Charter, international treaties, and fundamental principles of human rights; and second, jurisprudential legitimacy based on religious principles, fatwas of jurists, and the objectives of Sharia (Maqāṣid al-Sharīʿa). It also requires adherence to conditions such as conceptual clarity, content compatibility, and the acceptance process.
- The points of intersection and convergence between the general principles and rules of Islamic jurisprudence and international law in the field of peace — which strengthen the theory of dual legitimacy — include: both systems emphasize the protection of life and human dignity, justice and fairness, and respect for religious beliefs and rights as core principles.
The principles and rules governing peace diplomacy mechanisms from the perspective of the jurisprudential system were explained, and the corresponding principles for each from the perspective of international law were subsequently explained and compared. While achieving the following results, which are briefly presented, the "Theory of Dual Legitimacy" was proven:
a) The objectives of Sharia in the three areas of "necessities" (ḍarūriyyāt), "needs" (ḥujjiyya), and "embellishments" (taḥsīniyyāt) are fully consistent with the objectives
of the main peace diplomacy mechanisms, namely "ending violence," "justice and accountability," and "protection of human rights."
b) The Qur'anic verses indicating peace provide a basis for the legitimacy of diplomatic relations, peace treaties, and international cooperation with non-belligerent non-Muslim states, which corresponds with the "principle of non-aggression" in Article 2(4) of the UN Charter.
c) The principle "al-ṣulḥ khayr" (peace is good), derived from the Qur'anic phrase "wa-l-ṣulḥu khayr" (and peace is better), through its conceptual generality and from a principles-of-jurisprudence (uṣūlī) perspective in interpreting "khayr" (good) as applying to "ṣulḥ" (peace), indicates its intrinsic desirability and demonstrates the preference of peace over conflict and hostility in any context that secures the interests of both parties. This also serves as a basis for inferring the preference of peace in political and international interactions. It has a very high degree of content compatibility with preventive diplomacy — which involves using diplomatic tools to prevent the formation of a dispute or its transformation into armed conflict — rooted in Chapter VI, Article 33 of the UN Charter.
d) The jurisprudential rules of "la ḍarar" (no harm) and "iḍṭirār" (necessity) align with coercive diplomacy under Articles 41 and 42 of the UN Charter and the acceptance of certain unusual conditions to avert corruption/mischief (mafsada).
e) The principle of "maṣlaḥa" (public interest), which in practice allows for the replacement of one Sharia ruling with another based on social circumstances and the protection of Islamic interests, has a high degree of compatibility with the principle of consent and will, derived from Article 4 of the UN Charter.
f) The principle of "luzūm" (obligatoriness/ necessity of fulfilling contracts) in jurisprudence corresponds with the principle of equality and sovereignty of states in Article 2(1) of the UN Charter.
کلیدواژهها [English]
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