The unlegislated zone: Difference between revisions
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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 (maqāṣid al-sharīʿa), the universality of Islamic rulings, and its role as a conceptual foundation for legislation in the contemporary era. | 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. | ||
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== 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 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> | 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> | ||
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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 == | ||