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'''The unlegislated zone''' (in Arabic: [https://ency.feqhemoaser.com/fa/view/%D9%85%D9%86%D8%B7%D9%82%D8%A9_%D8%A7%D9%84%D9%81%D8%B1%D8%A7%D8%BA منطقة الفراغ]) is a jurisprudential theory proposed by [[Muhammad Baqir | '''The unlegislated zone''' (in Arabic: [https://ency.feqhemoaser.com/fa/view/%D9%85%D9%86%D8%B7%D9%82%D8%A9_%D8%A7%D9%84%D9%81%D8%B1%D8%A7%D8%BA منطقة الفراغ]) is a jurisprudential theory proposed by [[Sayyid Muhammad Baqir Sadr]] in contemporary Shiʿi Islamic law. According to this theory, the Lawgiver grants the ruler of an Islamic society the authority to enact binding regulations in areas that are devoid of obligatory religious rulings, namely within the sphere of legally permissible acts, in order to secure the public interests of governance. The theory aims to provide a framework for harmonizing Islamic law with structural transformations in social life. | ||
Scholars of Islamic jurisprudence describe Mintaqat al-Farāgh as the outcome of a systemic and governmental approach to fiqh. Its significance is commonly attributed to its emphasis on the objectives of the Sharia ( | Scholars of Islamic jurisprudence describe Mintaqat al-Farāgh as the outcome of a systemic and governmental approach to fiqh. Its significance is commonly attributed to its emphasis on the objectives of the Sharia (maqāṣid al-sharīʿa), the universality of Islamic rulings, and its role as a conceptual foundation for legislation in the contemporary era. | ||
In support of this theory, al-Sadr refers to the [[Verse of Ulu al-Amr|Qurʾanic verse on obedience to those in authority (Qurʾan 4:59)]] as well as several narrations concerning the governmental rulings of the Prophet Muhammad and Imam ʿAli. On this basis, legislation in areas lacking obligatory religious rulings is understood to be delegated to the | In support of this theory, al-Sadr refers to the [[Verse of Ulu al-Amr|Qurʾanic verse on obedience to those in authority (Qurʾan 4:59)]] as well as several narrations concerning the governmental rulings of the Prophet Muhammad and Imam ʿAli. On this basis, legislation in areas lacking obligatory religious rulings is understood to be delegated to the Wali al-Amr (the legitimate authority of the community) or, in modern contexts, to legislative institutions, provided that such legislation does not conflict with other established Islamic rulings. | ||
Although the formulation of the Mintaqat al-Farāgh theory is considered an innovation of Muhammad Baqir al-Sadr, its intellectual roots can be traced to earlier works, such as ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'' by [[Mirza Mohammad-Hossein Gharavi Na'ini]], as well as to discussions found in Sunni jurisprudence under the title | Although the formulation of the Mintaqat al-Farāgh theory is considered an innovation of Muhammad Baqir al-Sadr, its intellectual roots can be traced to earlier works, such as ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'' by [[Mirza Mohammad-Hossein Gharavi Na'ini]], as well as to discussions found in Sunni jurisprudence under the title Mintaqat al-ʿAfw (the zone of pardon). The theory has also been subject to criticism by some jurists, who have raised objections concerning its compatibility with the comprehensiveness of the Sharia, the exclusivity of legislation to the Lawgiver, and the scope of authority granted to non-legislators. | ||
== Explanation and Introduction of the Theory == | == Explanation and Introduction of the Theory == | ||
Mintaqat al-Faragh is a theory by [[Muhammad Baqir | Mintaqat al-Faragh is a theory by [[Sayyid Muhammad Baqir Sadr]] in Shia jurisprudence that grants the ruler of an Islamic society the authority to enact binding laws in cases where there is no obligatory religious ruling, with the aim of securing the interests of the state.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 41.</ref> This theory is aimed at explaining a mechanism for harmonizing Sharia with temporal and spatial changes. According to Sadr, the primary rule and practical principle regarding actions is permissibility (Ibahah), which also includes the subjects of Mintaqat al-Faragh. He believes that for any activity or action for which there is no legislative text indicating its prohibition or obligation, the Wali al-Amr can prohibit it or command it.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 43.</ref> Although in Sadr's view, God's intrinsic authority includes potential duties as well, he nevertheless practically accepts the ruling of exoneration (Bara'ah) based on religious evidence such as "Allah does not charge a soul except [with that] which He has given it."<ref>Sadr, ''Durus fi 'Ilm al-Usul'', vol. 2, p. 37.</ref> | ||
From Sadr's perspective, the Prophet of God had two positions: the position of delivering the message and propagating God's rulings, and the position of guardianship and leadership over the people. Based on this, the Prophet's commands and prohibitions in his capacity as a messenger are unchangeable legislative texts, while his commands and prohibitions in his capacity as a ruler are considered changeable rulings. Therefore, the Prophet, from his first position, i.e., messenger, explained and propagated the fixed divine rulings, and from his position as the ruler of the Islamic society, he issued rulings in the Mintaqat al-Faragh by considering the interests and benefits of the society.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 414.</ref> | From Sadr's perspective, the Prophet of God had two positions: the position of delivering the message and propagating God's rulings, and the position of guardianship and leadership over the people. Based on this, the Prophet's commands and prohibitions in his capacity as a messenger are unchangeable legislative texts, while his commands and prohibitions in his capacity as a ruler are considered changeable rulings. Therefore, the Prophet, from his first position, i.e., messenger, explained and propagated the fixed divine rulings, and from his position as the ruler of the Islamic society, he issued rulings in the Mintaqat al-Faragh by considering the interests and benefits of the society.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 414.</ref> | ||
=== Background === | === Background === | ||
The theorist of Mintaqat al-Faragh, [[Muhammad Baqir | The theorist of Mintaqat al-Faragh, [[Sayyid Muhammad Baqir Sadr]], was a Shia mujtahid and thinker residing in Iraq.<ref>Ha'iri, ''The Life and Thoughts of Shahid Sadr'', p. 35.</ref> Nevertheless, the groundwork for this theory also existed in the views of other scholars, such as in ''Tanbih al-Ummah'' by [[Mirza Mohammad-Hossein Gharavi Na'ini]].<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 91.</ref> According to [[Ali Akbar Ha'iri]], although this title is an innovation of Sadr, its content has been discussed among both Sunnis and Shias in the past.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", p. 111.</ref> | ||
Among Sunnis, the theory of | Among Sunnis, the theory of Mintaqat al-'Afw (the zone of pardon), which Sunni scholars sometimes also refer to as Mintaqat al-Faragh,<ref>Al-Qaradawi, ''Awamil al-Si'ah wa al-Murunah'', p. 11.</ref> refers to a domain in which no text has been issued by the Lawgiver. This theory is very close to the discussions raised by Na'ini and Sadr in contemporary Shia jurisprudence; for example, Nur al-Din ibn Mukhtar al-Khadimi (born 1963) in his book ''Al-Ijtihad al-Maqasidi''.<ref>Al-Khadimi, ''Al-Ijtihad al-Maqasidi: Hujjatuhu, Dawabituhu, Majalatuhu'', p. 173.</ref> Abd al-Karim Hamdawi has also discussed Mintaqat al-Faragh and made it the focus of a significant part of his book.<ref>Al-Hamdawi, ''Thulathiyyat Fiqh al-Ahkam al-Sultaniyyah'', pp. 473–487.</ref> | ||
=== Difference from Secondary Rulings === | === Difference from Secondary Rulings === | ||
The difference between rulings issued in the Mintaqat al-Faragh and secondary rulings is that secondary rulings have a stipulated reference in the Sharia, such as the [[Rule of No-Harm]], necessity ( | The difference between rulings issued in the Mintaqat al-Faragh and secondary rulings is that secondary rulings have a stipulated reference in the Sharia, such as the [[Rule of No-Harm]], necessity (Idtirar), and hardship ('Usr wa Haraj). However, a governmental ruling in the Mintaqat al-Faragh does not trace back to a stipulated case in the Sharia, and what plays a role in its determination is a concept that Sadr calls "the authority of ijtihadi legislation"; meaning the ruler's authority to enact binding laws in the domain of permissible acts. According to the Mintaqat al-Faragh theory, the legislator enacts laws for the essence of subjects with their primary titles, rather than applying secondary rules to subjects in this zone.<ref>Hekmatnia, "An Explanation of the Mintaqat al-Faragh Theory", pp. 114–115.</ref> | ||
== Legislation in Mintaqat al-Faragh == | == Legislation in Mintaqat al-Faragh == | ||
According to Muhammad Baqir al-Sadr in the treatise ''[[A Preliminary Jurisprudential Glimpse into the Draft Constitution of the Islamic Republic of Iran|A Preliminary Jurisprudential Glimpse]]'', for matters that are not subject to a decisive ruling of obligation or prohibition, the legislative power, as the representative of the nation, approves a law that is in the interest of the people and does not conflict with the fundamentals of Islamic law. In his view, the scope of this legislation includes cases that the Sharia has left to the discretion of the people themselves and has given the legally responsible person freedom of action to the extent that it does not conflict with other Islamic rulings.<ref>Sadr, ''Lamhah Fiqhiyyah Tamhidiyyah'', pp. 15, 13.</ref> Sadr also believes in his book ''Iqtisaduna'' that the Islamic economic system has two main parts; one part, which constitutes the objectives of Islam, is its fixed and unchangeable part, and the other part is the flexible part of this system, in which Islam has delegated legislation to the | According to Muhammad Baqir al-Sadr in the treatise ''[[A Preliminary Jurisprudential Glimpse into the Draft Constitution of the Islamic Republic of Iran|A Preliminary Jurisprudential Glimpse]]'', for matters that are not subject to a decisive ruling of obligation or prohibition, the legislative power, as the representative of the nation, approves a law that is in the interest of the people and does not conflict with the fundamentals of Islamic law. In his view, the scope of this legislation includes cases that the Sharia has left to the discretion of the people themselves and has given the legally responsible person freedom of action to the extent that it does not conflict with other Islamic rulings.<ref>Sadr, ''Lamhah Fiqhiyyah Tamhidiyyah'', pp. 15, 13.</ref> Sadr also believes in his book ''Iqtisaduna'' that the Islamic economic system has two main parts; one part, which constitutes the objectives of Islam, is its fixed and unchangeable part, and the other part is the flexible part of this system, in which Islam has delegated legislation to the Wali al-Amr.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, pp. 41, 42.</ref> Sadr claims that God, in the Book, by virtue of "Obey Allah and obey the Messenger and those in authority among you," has given a special authority to the Wali al-Amr and has made his commands binding. In his view, the zone in which the Wali al-Amr can exercise authority has various domains, one of which is the arena of legislation. | ||
[[Mirza Mohammad-Hossein Gharavi Na'ini]] also, in his treatise ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'', in the discussion of the method of legislation, has referred to stipulated and non-stipulated rulings. According to him, in the domain of stipulated matters, the duty of the legally responsible is specified in the Sharia and one must adhere to it; but in the domain of non-stipulated matters, due to not being included under any specific rule of the Sharia, this domain is delegated to the | [[Mirza Mohammad-Hossein Gharavi Na'ini]] also, in his treatise ''[[Tanbih al-Ummah wa Tanzih al-Millah]]'', in the discussion of the method of legislation, has referred to stipulated and non-stipulated rulings. According to him, in the domain of stipulated matters, the duty of the legally responsible is specified in the Sharia and one must adhere to it; but in the domain of non-stipulated matters, due to not being included under any specific rule of the Sharia, this domain is delegated to the Wali al-Naw'i (general guardian), and the laws related to this domain are subject to change by the legislative body according to the exigencies of interests and harms.<ref>Na'ini, ''Tanbih al-Ummah wa Tanzih al-Millah'', pp. 134–137.</ref> | ||
== Importance == | == Importance == | ||
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=== Universality of Islamic Rulings === | === Universality of Islamic Rulings === | ||
According to researchers like Sayyid Salam Zayn al-'Abidin, the change in structures and the speed of developments in human social life have made the need for theorization in the domain of jurisprudential variables more necessary than ever; for this reason, Sadr proposed the Mintaqat al-Faragh theory with this approach. According to him, Sadr's emphasis on extracting theory from texts and filling the vacuum areas is to such an extent that some have called his jurisprudence "the jurisprudence of theory" ( | According to researchers like Sayyid Salam Zayn al-'Abidin, the change in structures and the speed of developments in human social life have made the need for theorization in the domain of jurisprudential variables more necessary than ever; for this reason, Sadr proposed the Mintaqat al-Faragh theory with this approach. According to him, Sadr's emphasis on extracting theory from texts and filling the vacuum areas is to such an extent that some have called his jurisprudence "the jurisprudence of theory" (Fiqh al-Nazariyyah).<ref>Zayn al-'Abidin, "Imam Shahid Sadr, from the Jurisprudence of the Text to the Jurisprudence of Theory", pp. 67–116.</ref> [[Kazim al-Haeri]], one of Sadr's students, has also considered economic developments in different times and places and the universality of Islamic rulings as Sadr's reason for defending the Mintaqat al-Faragh theory. Haeri has written that over time, due to technological progress, the relationship between man and nature changes, and Islam must provide solutions commensurate with them.<ref>Ha'iri, "Islamic Economics and the Method of Its Discovery from the Perspective of Shahid Sadr", p. 29.</ref> | ||
=== Governmental View of Fiqh === | === Governmental View of Fiqh === | ||
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[[Ali al-Sistani]], a contemporary Marja', has also spoken of the concept of higher objectives, both in the Mintaqat al-Faragh and in the theory of spiritual harmony, and believes: The conformity of evidence with the Book and the Sunnah does not mean conformity with its generalities and universal statements; rather, conformity is in terms of the objectives and spirit of the Sharia, meaning the high objectives of the Sharia, such as justice, equality, benevolence, negation of hardship, which are mentioned in the Quran, act as an indicator and a planner.<ref>Rabbani, ''Mabahith al-Hujaj'', p. 36.</ref> | [[Ali al-Sistani]], a contemporary Marja', has also spoken of the concept of higher objectives, both in the Mintaqat al-Faragh and in the theory of spiritual harmony, and believes: The conformity of evidence with the Book and the Sunnah does not mean conformity with its generalities and universal statements; rather, conformity is in terms of the objectives and spirit of the Sharia, meaning the high objectives of the Sharia, such as justice, equality, benevolence, negation of hardship, which are mentioned in the Quran, act as an indicator and a planner.<ref>Rabbani, ''Mabahith al-Hujaj'', p. 36.</ref> | ||
In Sadr's view, the objectives of the religion govern the vacuum domain, and the ruling issued in this domain must be compatible with the objectives of the Sharia and the goals governing all legislations.<ref>Sa'di and Tamaddon, "A New Investigation into the Role of Sharia Objectives in the Mintaqat al-Faragh", p. 223.</ref> He refers to these objectives as general indicators ( | In Sadr's view, the objectives of the religion govern the vacuum domain, and the ruling issued in this domain must be compatible with the objectives of the Sharia and the goals governing all legislations.<ref>Sa'di and Tamaddon, "A New Investigation into the Role of Sharia Objectives in the Mintaqat al-Faragh", p. 223.</ref> He refers to these objectives as general indicators (Mu'ashshirat 'Ammah).<ref>Sadr, ''Al-Islam Yaqud al-Hayat'', p. 61.</ref> | ||
== Reasons for the Theory == | == Reasons for the Theory == | ||
To prove his theory, Muhammad Baqir al-Sadr has cited verse 59 of Surah al-Nisa regarding obedience to the | To prove his theory, Muhammad Baqir al-Sadr has cited verse 59 of Surah al-Nisa regarding obedience to the Wali al-Amr, and several narrations about the governmental rulings of the Prophet of Islam (s) and Imam Ali (a). | ||
=== The Verse of Ulu al-Amr === | === The Verse of Ulu al-Amr === | ||
To prove the authority of the | To prove the authority of the Wali al-Amr to enact binding rulings in areas devoid of religious law, Muhammad Baqir al-Sadr has cited the [[Verse of Ulu al-Amr|'''Qurʾan 4:59''']] regarding obedience to the command of those in authority in line with obedience to the command of God and the Prophet. In his view, this verse clearly indicates the obligation to obey the guardians of authority. Sadr believes that Muslims have no disagreement that the guardians of authority in an Islamic society possess legitimate authority and power, and the disagreement is only about their conditions and attributes. Sadr does not comment on the specific referent of the Wali al-Amr during the era of occultation and only fundamentally believes that the guardian and ruler of the society has the authority to enact laws in areas devoid of religious ruling in accordance with his governmental capacity.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 43.</ref> In Sadr's interpretation of the said verse, the Sharia has granted such a right to the Wali al-Amr that, based on it, in cases where there is no obligation from the Sharia, he can issue rulings in the Mintaqat al-Faragh according to the exigencies of time and place and in accordance with the fundamental objectives of the Islamic Sharia.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", pp. 113–114.</ref> | ||
=== Governmental Rulings of the Prophet (s) and Imam Ali (a) === | === Governmental Rulings of the Prophet (s) and Imam Ali (a) === | ||
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=== Contradiction with the Comprehensiveness of the Sharia === | === Contradiction with the Comprehensiveness of the Sharia === | ||
Among the criticisms raised against the Mintaqat al-Faragh theory is its contradiction with the comprehensiveness of the religion of Islam. [[Naser Makarem Shirazi]], a contemporary Marja' al-Taqlid, says in the book ''Buhuth Fiqhiyyah Hammah'': Imami Shia scholars believe that no matter is devoid of a religious ruling, and the divine ruling for every matter has been stated in the Sharia, whether this has reached us through a text ( | Among the criticisms raised against the Mintaqat al-Faragh theory is its contradiction with the comprehensiveness of the religion of Islam. [[Naser Makarem Shirazi]], a contemporary Marja' al-Taqlid, says in the book ''Buhuth Fiqhiyyah Hammah'': Imami Shia scholars believe that no matter is devoid of a religious ruling, and the divine ruling for every matter has been stated in the Sharia, whether this has reached us through a text (Nass) or through general rules and principles; therefore, there is no room left for legislation by a jurist or a non-jurist, and there is no vacuum or deficiency in the Sharia.<ref>Makarem Shirazi, ''Buhuth Fiqhiyyah Hammah'', p. 515.</ref> While discussing the legislative powers of the Islamic ruler, he believes that the Wali al-Faqih has the right to legislate in specific cases that are of an executive nature and are akin to applying general principles to specific instances. For example, preserving the lives of Muslims is a general law in the Sharia, and traffic laws are accepted in line with this general law.<ref>Esmaeili, "A Reflection on the Mintaqat al-Faragh Theory", p. 52.</ref> | ||
Muhammad Baqir al-Sadr himself addressed this criticism and responded: The existence of a zone lacking a ruling is not considered a deficiency or negligence in legislation; because the Sharia has not left this zone to its own devices; rather, it has allowed the Islamic ruler to enact rulings for it according to the circumstances. In this respect, the Mintaqat al-Faragh theory leads to the dynamism of ijtihad and empowers the Sharia to respond to contemporary needs.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 417.</ref> | Muhammad Baqir al-Sadr himself addressed this criticism and responded: The existence of a zone lacking a ruling is not considered a deficiency or negligence in legislation; because the Sharia has not left this zone to its own devices; rather, it has allowed the Islamic ruler to enact rulings for it according to the circumstances. In this respect, the Mintaqat al-Faragh theory leads to the dynamism of ijtihad and empowers the Sharia to respond to contemporary needs.<ref>Sadr, ''Eqtesad-e Ma'', vol. 2, p. 417.</ref> | ||
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The exclusivity of the authority to legislate to God and the belief in the impossibility of legislation by a non-Lawgiver is another criticism leveled against the Mintaqat al-Faragh theory.<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 91.</ref> [[Husayn Ali Montazeri]], a contemporary Marja' al-Taqlid, in explaining this exclusivity, has said: Legislation belongs only to God, and besides Him, there is no legislator or lawgiver; therefore, no individual, except the prophets and imams, has the right to legislate. In other words, a ruling has three stages: first, legislation by God; second, deduction and extraction by jurists; third, planning and execution. Therefore, there is no other basis for justifying legislation by someone other than God.<ref>Montazeri, ''Mabani-ye Fiqhi-ye Hukumat-e Islami'', p. 120.</ref> | The exclusivity of the authority to legislate to God and the belief in the impossibility of legislation by a non-Lawgiver is another criticism leveled against the Mintaqat al-Faragh theory.<ref>Husseini, "Re-examination, Analysis, and Critique of the Mintaqat al-Faragh Theory", p. 91.</ref> [[Husayn Ali Montazeri]], a contemporary Marja' al-Taqlid, in explaining this exclusivity, has said: Legislation belongs only to God, and besides Him, there is no legislator or lawgiver; therefore, no individual, except the prophets and imams, has the right to legislate. In other words, a ruling has three stages: first, legislation by God; second, deduction and extraction by jurists; third, planning and execution. Therefore, there is no other basis for justifying legislation by someone other than God.<ref>Montazeri, ''Mabani-ye Fiqhi-ye Hukumat-e Islami'', p. 120.</ref> | ||
In response to this criticism, [[Ali Akbar Ha'iri]] believes that the command to obey the | In response to this criticism, [[Ali Akbar Ha'iri]] believes that the command to obey the Wali al-Amr in the Mintaqat al-Faragh domain is valid as long as he legislates within the framework determined by the Sharia. He provides three types of regulations for filling the Mintaqat al-Faragh: 1. Regulations for determining the Wali al-Amr, 2. Regulations for delineating the Mintaqat al-Faragh domain, 3. Regulations for law-making and legislation. With these three regulations, the jurist's legislation is placed in tandem with God's legislation, and there will be no conflict.<ref>Ha'iri, "Mintaqat al-Faragh fi al-Tashri' al-Islami", pp. 117–124.</ref> | ||
=== Conflict with the Evidence of Legislative Permissibility === | === Conflict with the Evidence of Legislative Permissibility === | ||
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== Study Resources == | == Study Resources == | ||
{{Main|Mintaqat al-Faragh (Study Resources)}} | {{Main|Mintaqat al-Faragh (Study Resources)}} | ||
The issue of Mintaqat al-Faragh, besides being discussed in the works of | The issue of Mintaqat al-Faragh, besides being discussed in the works of Sayyid Muhammad Baqir Sadr and [[Mirza Mohammad-Hossein Gharavi Na'ini]], is also addressed in parts of books related to issues of governance and the legislative system in Islam. Books and articles have also been written independently on this theory in contemporary Shia jurisprudence. Among these books are ''Mintaqat al-Faragh dar Qanunguzari-ye Islami'' (Mintaqat al-Faragh in Islamic Legislation) by Abd al-Majid Qa'edi Lamerdi in Persian, and the book ''Mintaqat al-Faragh al-Tashri'i: Dirasah Muqaranah li-Ahamm al-'Anasir al-Marinah fi al-Shari'ah al-Islamiyyah'' by Falah Abd al-Hasan al-Dukhi in Arabic. Articles such as "The Theory of Mintaqat al-Faragh and Human Authority" by [[Haydar Hubballah]], "The Nature and Evidences of Mintaqat al-Faragh in Islamic Legislation" by Ali Rahmani-Fard and Abd al-Majid Qa'edi Lamerdi, and "Mintaqat al-Faragh as a Theory of Legislation" by Hasan Amini-Pazhuh and [[Mohsen Esmaeili]], have also examined this issue from the perspective of Shia jurisprudence. | ||
== footnotes == | == footnotes == | ||