Jurisprudence and Government (book)

Author: Hasan Ejraie

• abstract

Jurisprudence and government (Book) (in persian: فقه و دولت (کتاب)) is a book that is consisted of lectures on contemporary jurisprudence issues, most of which are about political jurisprudence. It considers issues such as expediency, limiting power, the place of the people in the Islamic government, and the relationship between the media and the government. The theorists whose lectures are mentioned here are mostly professors of Qom seminary such as Seyfullah Sorami, Mohammad Javad Arasta, Kazem Qazizadeh, Mohammad Soroush Mahallati, Seyyed Javad Varaei and Mohsen Ghoravyan. According to what is stated in this book, Seyfullah Sorami called the arrangement of interests in the life of Imam Ali (PBUH) as follows: Islam, Muslim unity, maintaining Muslim government, justice, security, and finally special jurisprudence. In addition, according to Kazem Qazizadeh, based on the life of the Prophet and Imam Ali (PBUH), the six rights of the people in relation to the government are: selecting the ruler, participatiing in decision-making, having a commanding view over the rulers, giving advice advice, enjoining the right and forbidding the wrong, and, finally, having practical objection. According to Seyyed Javad Varaei said, people have the right to disobey the government in three situations during occultation: (a) Laws and decisions against Sharia, (b) Wrong rulings and regulations and decisions, and (c) Failure of the government to fulfil its duties towards the people. The mentioned lectures were held at Fahim Institute. The topics and sections of the book are arranged without specific categories and order. Some of its contents are not closely related to the issues raised in jurisprudence. This book was published in 2016.

General information

The book Jurisprudence and Government was composed of books of Fahim Institute on the subject of political jurisprudence, which includes 19 lectures on expediency, limiting power, the place of the people in Islamic government, as well as media and government. These subjects are based on jurisprudence, and the following scholars’views have been discussed: Seyfullah Sorami, Mohammad Javad Arasta, Mohsen Ghorayan, Mohammad Soroush Mahallati, Seyed Javad Varaei, Mehdipourhossein, Mohammad Hadi Mofatteh and Kazem Qazizadeh. Although the title of the book is "Jurisprudence and Government" and it follows that all its contents and lectures are from a jurisprudential point of view, some theories are independent from the jurisprudential point of view which is why they are not mentioned in this article: including Religion and media rights; media propaganda of religion; Principles and challenges. Each section of the book is consisted of lectures given by seminary thinkers in the weekly meetings of the Fahim Cultural Research Institute, some of which were held in the form of debates, and at the end of each section, the questions of the audience and the theorist's answers were also given. The date of each meeting is not mentioned in the book. The book is not thematic based on the main topics of the lectures and each lecture is arranged independently. In addition, the theorizations with a single subject have not been placed consecutively and it is not clear on what basis they are arranged. This book was published in Qom in 2016 by Noor-Ala- Noor Publishing House.

Theoreticians

The book Jurisprudence and Government represents the opinions and views of 13 theoreticians and seminarian scholars. Of these, the views of of Kazem Qazizadeh are mentioned in four sections, the views of Mohammad Soroush Mahallati in three sections, and the views of Seyyed Javad Varaei, Ahmad Abedi and Mohammad Javad Fakhkhar Tousi in two sections. Some of the mentioned theoreticians along with their works are:

• Kazem Qazizadeh (born in 1961) is a lecturer of Karij Fiqh and an assistant professor at the Department of Quranic and Hadith Sciences of Tarbiat Modarres University, the author of books such as Imam Khomeini's jurisprudential-political thoughts, the position of the Shura in the Islamic government, and also articles such as the validity of the majority vote.
• Mohammad Soroush Mahallati (born in 1961) is a lecturer of foreign jurisprudence and principles in Qom seminary, and the author of books and articles about political jurisprudence, including religion and government in Islamic thought, government and the implementation of Sharia.
• Seyyed Javad Warai (born 1964) is a lecturer in foreign jurisprudence at the Qom seminary and the author of books and articles on political jurisprudence, including jurisprudential examination of obedience and civil disobedience, and citizenship rights in Islamic thought.
• Mohammad Javad Fakhkhar Tousi, a lecturer of Karij Fiqh and principles at Qom Seminary and the author of the book The rights of the accused: A Jurisprudential-Legal Review as well as Jurisprudential Research in News Agency.
• Seyfullah Sorami (born 1963) is a lecturer of Kharij Fiqh and principles at Qom Seminary, the associate professor at the Research Institute of Islamic Sciences and Culture, and the author of books on political jurisprudence, including people's rights in government, and non-litigious matters: a governmental institution and apostate rulings from the perspective of Islam.
• Mohammad Javad Arasta (born 1964) is a lecturer in foreign jurisprudence at Qom Seminary, associate professor at Tehran University and the author of works on political jurisprudence, including the Islamic human rights system and supervision of institutions under the leadership category.

Expediency

Two of the lectures mentioned in the book are about expediency presented by Seyfullah Sorami and Seyyed Javad Varaei.

Expediency in the Alavi government

Seyfullah Sorami, relying on the lives of the Caliphs and Imam Ali (PBUH), first pointed out with a critical look at cases of decisions based on expediency during the caliphate of Abu Bakr and Omar (pp. 21-24). Then the issue of arbitration as an example of paying attention to expediency during the caliphate period of Imam Ali (PBUH) has been discussed. At the same time, by stating the criticisms of Ali Ibn Abi Talib on the expediency thinking of the previous periods, it has been said that Imam Ali (PBUH) considers expediency against religion as polytheism. (pp. 26-24) Accordingly, the purpose of Imam Ali's expediency thoughts is to implement the rulings and justice, as well as to reform the nation and restore the religion. Also, the order of interests in the biography of Ali bin Abi Talib is stated as follows: Islam, the unity of Muslims, maintaining the rule of Muslims, justice, security, and finally special jurisprudential rulings. (p. 27)

The Expediency Rule , the Basis of Foreign Affairs of the Islamic Government

Seyyed Javad Varaei's speech is a jurisprudential answer to the question that in the relations between the Islamic government and non-Islamic government, war or peace is the principle? (p. 153) Varaei, stating that this question has been raised among the Sunnis, but Shia scholars have not addressed it, stated the reasons for the authenticity of war or peace in Shia books and explained the third theory called the rule of expediency. He contends that authenticity is not with Jihad or peace, but with expediency. Thus, the recognition of expediency is also with the Islamic government (p. 157). However, rules and regulations must be observed in this regard, including the way of thinking, respecting the honour of Islam and Muslims, as well as the need to observe preparation and defence power, and not having a relationship with infidels (pp. 160-159).

Restricting Power

Five of the lectures mentioned in the book are about restricting power and civil disobedience, which were presented by Kazem Qazizadeh, Mohammad Soroush Mahallati, Seyyed Javad Varaei and Mehdipourhossein.

The Position of enjoining the Right and forbidding the Wrong in Islamic government

With a Qur'anic and narrative approach, Kazem Qazizadeh has described three areas for enjoining the right and forbidding the wrong:

1. Enjoining and forbidding the government to the people;
2. Enjoining and forbidding the general public to each other; and
3. Enjoining and forbidding the people to the rulers.

Among them, Qazizadeh is of the opinion that the third case, i.e. enjoining and forbidding the people to the rulers. It is not specified in the verses of the Qur'an although it can be deduced from many traditions (p. 240). He further mentioned the cases of protest against the Prophet of Islam and Imam Ali (PBUH) and in this regard, he stated the six rights of the people: selecting the ruler, participatiing in decision-making, having a commanding view over the rulers, giving advice advice, enjoining the right and forbidding the wrong, and, finally, having practical objection (p. 242).

Reflection on the Legitimacy of enjoining the Right and Forbidding the Wrong

With a jurisprudential view of enjoining the right and forbidding the wrong, Mohammad Soroush Mahallati has examined the rational and narrative reasons of the jurists to prove the practical command and prohibition. In this way, Sheikh Tousi in the book of Economics, Fakhr al-Mohaqqeqin in the book of Izah and Shahid Sani in the book of Lomah have proved the necessity of enjoiningg and forbidding in a rational way and arising from the rule of kindness (p. 260). Soroush Mahallati believes that by enjoining the right and forbidding the wrong the negation arising from the rule of kindness cannot be used to enjoin or forbid because the necessity of the rule of kindness is to avoid coercion and reluctance (p. 261). In the following, he has examined some of the opinions of the jurists who disagree or agree with the practical command and prohibition by using the verses and traditions. Opponents including Sahib Jawahar and Mohaghegh Sabzevari, and supporters including Seyyed Musa Shobeyri Zanjani and Seyyed Mohammad Hosseini Beheshti, who, by using methods such as the abolition of customary character and Tanqih Mana’at, extended the meaning of enjoining and forbidding in hadiths to its practical aspect as well (pp. 264-265).

Examining the Scope of Privacy based on Political Jurisprudence

Referring to the theological foundations of Shia, including the opposition to al-ja'a and its incompatibility with duty, Mohammad Soroush Mahallati talked about the conflict of rulings such as elementary jihad and apostasy with the theological perspective of Shia. At the same time, it was clarified that the jurists pay attention to the theological foundations in issuing fatwas and they do not oppose the al-ja'a (p. 122-124). He has also pointed out the contradiction of the mentioned principle with the third stage of commanding good and forbidding evil, that is, practical enjoining and forbidding. (p. 125) Soroush Mahallati then expressed the opinions of Imam Khomeini and Ali Ahmadi Mianeji, and arued the possibility that enjoining the right and forbidding the wrong language may be a form of violation of the dignity of individuals and therefore an invasion of privacy. (p. 128). Thus, he believes that if enjoining the right and forbidding the wrong requires harm, there is no obstacle to doing it, but if we doubt about this, we cannot enjoin or forbid (p. 143).

Civil Obedience in Shia Jurisprudence

Seyyed Javad Varaei first presented the definition of civil disobedience and its difference with civil resistance, which disobedience has a positive aspect and resistance has a negative aspect; Thus, civil disobedience has three conditions:

1. Objection and defiance should be obvious;
2. Before the obvious opposition, it has been pursued through legal means and no result has been achieved; and
3. Maintaining social order (pp. 171-172).

After that, the difference between civil disobedience and subversion or insurrection is stated, based on which, the goal in subversion or insurrection is to overthrow the political system. While in civil disobedience, social order is maintained and disobedience must be accompanied by the acceptance of the political system. Therefore, disobedience is different from war because in Moharebeh, social security is threatened in armed form. (pp. 172-173) Varaei has clarified that disobedience, protest, resistance and civil disobedience against the law, decision and policy adopted and implemented by the Prophet or the infallible Imam is illegitimate and prohibited (p. 174). Relying on the verses of the Qur'an and the hadiths of the infallible Imams it can be said that during the time of occultation, people have the right to disobey in three cases:

1. Laws and decisions of the government that are against Sharia;
2. The rulings and regulations and decisions are wrong and incorrect; and
3. The government does not fulfil its duties towards the people (pp. 182-177).

Jurisprudential Investigation of Baghi (rebels) and its Relationship with Civil Disobedience

In this article, Mahdi Pourhossein has first stated two meanings of Baghi (rebels) in the words of jurists. According to jurists including Sheikh Tousi, Ibn Idris and Allameh Helli, a rebel is someone who revolts against the government. According to Allameh Helli, the Shahid Sani and the writer of Jawaher Al-Kalam, "departing from obedience to the Imam" means a rebel, and thus civil disobedience to the view of these three jurists is a rebellion, because civil disobedience is the same as leaving the Imam's obedience. (p. 193). However, Pourhossein has clarified that even the jurists who consider civil disobedience as rebellion have set three conditions for it:

1. Rebels must have a numerical plurality (according to this, Abd al-Rahman bin Muljam is not a rebel).
2. The rebels must have left the government's authority and the government should not have control over them.
3. They should have political justification.

Pourhossein finally concluded that civil disobedience, non-violent acts and even rebellion, if not with the intention of overthrowing the government, are not considered rebellion (p. 196-194). Against the rebels, peaceful ways should be used at first, and in case of failure, the Muslim ruler does not have the right to start the war and the rebels must start the war (p. 204) and, in addition, the rule of the Baghi (rebels) is to fight not to kill (p. 201).

The Place of the People in the Islamic Government

Three of the lectures mentioned in the book are about the place of the people, the majority and their votes in the Islamic government, which were presented by Kazem Qazizadeh, Abdullah Hajisadeqi and Mohsen Ghoravyan.

Discussing the Position of the Majority in the Legitimacy of the Islamic Government

Abdullah Hajisadeqi believes that although the people do not have a role in the legitimacy of the Islamic government, they do have a role in accepting, participating and monitoring it (p. 35). Additionally, if the society does not have a desire for a provincial system, it will not be possible to realize the velayat-e-faqih (p. 41). Also, according to Hajisadeqi, a non-faqih cannot be a ruler. (p. 42) Mohammad Javad Arasta emphasized that if the people do not accept the jurist Jame al-Sharaiti, whose accepted example is Umar bin Hanzala: “For I have made him a ruler over you ", however, he called the people guilty of sin in this regard (p. 43). He has also expressed a question about the methods of securing acceptance, based on which, what percentage of people's acceptance is necessary for the validity of the Islamic government? Half plus one? two-thirds? Or is there another criterion? (p. 44) Aristotle is of the opinion that if the general acceptance is lost during the government, the continuation of the acts of guardianship will not be allowed. (p. 46).

Discussing the Place of People's Vote in Islamic Government

Mohsen Ghoravyan, proposing the Ifteraz Theory, is based on the fact that if we assume that the Prophet is between two jurists with favorable conditions, one with 80% and one with 20% of the people's votes, he will definitely choose the first one, and this means the influence of the majority vote on the legitimacy of the Islamic ruler (p. 66-67). Ghoravyan also believes that the theory of religious authority should be expressed in such a way that people are not offended and people are not upset, at the same time, it is not against jurisprudence and the rules and principles of religion. (p. 76) Hashem Niazi, however, relying on " كَم مِّن فِئَةٍ قَليلَةٍ غَلَبَت فِئَةً كَثيرَةً بِإِذنِ اللّهِ There are many small groups who, by God's command, won over huge groups " believes that the devoted minority, which is less than 51%, is definitely ahead of the 51% who only talk. (p. 80).

The Place of People's Vote in Islamic Government

Kazem Qazizadeh has stated with a historical perspective that the Shiites first considered all jurists to be authorized to act as guardians. Then, in order to solve the problem of conflict between jurists, Imam Khomeini believed in the velayat of the faqih, which according to Qazizadeh, is the first stage of the beginning of the theory of the guardianship of the jurist. After the formation of the Islamic government and the need to manage the society and the government, it led to the formation of the next stage in the theory of velayat-e-faqih, which is the velayat-e-faqih of the most learned. He considered the next stages to be the appropriate jurisprudence, and after that, the elected jurisprudence, which is both correct and elected by the people. (pp. 90-91). Qazizadeh then expressed three views about the position of people's vote:

1. Absolute Republic, meaning the total validity of the people's vote in the legitimacy of the government, which he called an extreme theory.
2. Pure divine legitimacy means the negation of any credit of the people in the legitimacy of the government, which according to Qazizadeh is also extreme because the only effect of the people's vote is to be Shari'i in the process of discovering the rightful judge. He also referred to a proposal by Mohammad Taqi Mesbahe Yazdi, based on which the members of the Experts Council should be elected not by the people's vote but by the jurists' vote (p. 93).
3. People's involvement in legitimacy, in the sense that the people's vote is part of the factors that give legitimacy to the legal guardian, and thus, the people's vote cannot be ignored in any matter (p. 94).

Media and Government

Some of the lectures mentioned in the book are about the concept of religious media and the relationship between media and the government, none of which have a jurisprudential perspective, and one of them is related to jurisprudence, which was presented by Mohammad Javad Fakhkhar Tousi.

The Relationship between the Media and Government

Mohammad Javad Fakhkhar Tousi first proposed different theories about the relationship between the media and government

1. The media under the supervision of the Muslim Leader: This theory was proposed in the book of Hossein-Ali Montazeri's studies based on two reasons: First, the Governor is responsible for managing the society and , second, all institutions are tools of the Governor for managing the society. (pp. 315-316)
2. The media is independent from the government: Fakhkhar Tousi first states the reasons for the theory and then criticizes each of them. Reasons include the necessity of enjoining the right and forbidding the wrong before the government and the ruler, the necessity of undertaking social duties by special institutions and the impossibility of entrusting it to government institutions, as well as the necessity of the independence of the institution of command and prohibition against the government. (pp. 318-320)
3. The combination of the first and second theories is as follows the national media should be in the hands of the ruler and the governor and allow a media independent of the government to be able to enjoin the right and forbid the wrong against the government. (p. 324)
4. National media and private media should be monitored, as well (p. 325). According to Fakhkhar Tousi, there is no fulfilment of the conditions of the prohibition of evil against the Muslim commander because the occurrence of negativity must be evident. Therefore, when we assume that someone has an excuse based on ijtihad or taqlid, it is not permissible to prohibit negativity, and the Imam of Muslims has these conditions, and such a possibility is always given. Even if we are sure of the occurrence of negativity such a supposition leads to the fall of the Imam from the condition of command, it is not an example of enjoining the right and forbidding the wrong. (pp. 336-334)

Accordingly, he believes that the narrations indicating the permissibility of criticism refer to private criticism and the narrations regarding the sanctity of criticism refer to its public and public design. (p. 341) Fakhkhar Tousi also stated in response to a documented question about the life of Imam Ali (PBUH) in dealing with critics that we cannot necessarily follow the example of imams since maybe the Imam was in the position of teaching or had another direction. (p. 346)

References

• Research School of Jurisprudence and Law, the website of the Research Institute of Islamic Sciences and Culture, visit date: 26 January 2021.
• Hojjatul Islam Seyyed Javad Varaei, Ijtihad Network, visit date: 26 January 2021.
• "Seyri in the Life of Talabagi", website of Mohammad Soroush Mahallati, visit date: 26 January 2021.
• Kazem Qazizadeh, Kalam Imamieh site, visit date: January 7, 2021.
• Fahim Cultural Research Institute, jurisprudence and government: political jurisprudence 1, Qom, Noor Ali Noor, 2016.
• Mohammed Javad Arasta, University of Tehran website, visit date: January 26, 2021.