State theories in Shiite jurisprudence (book)

Theories of Government in Shi'a Jurisprudence
Book Information
Main Title	Theories of Government in Shi'a Jurisprudence
Other Names	Nazariyeh-ha-ye Dowlat dar Fiqh-e Shi'eh
Author	Mohsen Kadivar
Date of Writing	1997
Subject	Political theory, Shi'a Islam, Jurisprudence
Style	Analytical, Critical
Language	Persian
Main Language	Persian
Editor	Alireza Salehi
Textual Editing	Alireza Salehi
Volumes	1
Pages	220
Collection	Political Thought in Islam (Vol. 1)
Translations	Arabic translation by Mohammad Shoqeir
Publication Information
Publisher	Nashr-e Ney
Publication Place	Tehran, Iran
Publication Date	1997
ISBN	964-312-370-7
Media Type	Print
English Translation
English Name	Theories of Government in Shi'a Jurisprudence
Translator	Mohammad Shoqeir (Arabic translation)
Publication Details	Tehran, Nashr-e Ney, 1376 SH (1997)
Other Volumes
Political Thought in Islam (Vol. 1)

Author: Alireza Salehi

• abstract

The State Theories in Shiite Jurisprudence (in Persian: نظریه‌های دولت در فقه شیعه) by Mohsen Kadivar is a study that seeks to collect the theories of Shiite jurisprudents about politics and state and classify them based on the foundations of divine or divine-popular legitimacy. In this book, nine theories under the two general titles of appointment and selection theories have been extracted from Shiite jurisprudence texts. Furthermore, the foundations, principles and interpretations of each of them have been explained. The author has also discussed the differences and commonalities of these theories.

According to him, the development of Shiite political theory began with the recognition of Shiism in the Safavid era and the relative empowerment of jurists in the Qajar era, with the works of jurists such as Mohaqqeq Karaki and Mulla Ahmad Naraqi. He asserted that during this period we witnessed the formation of the theory of appointment, and then, the theory of selection also grew in the Constitutional era (Mashruteh) and the Islamic Republic.

The book of State Theories in Shiite jurisprudence was reviewed and criticized by critics after its publication. The lack of comprehensiveness, lack of analysis, and lack of attention to the common positions of jurists regarding the guardianship of the Islamic jurist are among the criticisms that have been made to this book. In contrast to proper collection, documentation and fluent prose are among its advantages.

Introduction

The book of theories of state in Shiite jurisprudence seeks to report the opinions of Shiite jurists about politics and state and their classification. In this book, nine extracted theories are divided into two categories: appointment theories and selection theories. According to Mohsen Kadivar, the author of the book, Shiite jurisprudence in the field of individual rights is one of the richest sets of laws; However, in the field of social issues and public law rulings, a coherent collection has not been written down and the political opinions of jurists have been spread in various chapters such as enjoining what is right and forbidding what is wrong (al-amr bi al-maʿrūf wa al-nahy ʿan al-munkar), punishments (Hudud (fixed punishments under Islamic law)), holy war (Jihad), khums (One fifth), sale and Friday prayer. For this reason, there is a need to collect these viewpoints in a coherent way, and this book is in pursuit of such objectives. It was placed in the field of Shiite political jurisprudence .

The structure of the book and its Content

Before dealing with the nine theories, the author has reviewed four articles as an introduction. In the first introduction, he has discussed the four stages of the development of Shiite political jurisprudence, that is to say, the flourishing era of private jurisprudence, the era of monarchy and Guardianship (Wilayah), the era of constitutionalism and supervision, and the era of the Islamic Republic of Iran. The theory and purpose of writing the book has been justified (pp. 29-33).

In the third introduction, the author points to two categories of negative and positive theories about the state during the time of occultation in Shiite jurisprudence. The first group of jurists who do not derive a specific form of governance from jurisprudential evidence considers the presence of jurists in public affairs to be limited to non-litigious matters (al-omour al-hesbiah) (pp. 33-39) whereas, there are jurists who recommend the comprehensive plan for governing the society according to Sharia (pp.39-40). In the fourth introduction, he also deals with the classification of state theories based on the foundations of political legitimacy. In this introduction, by posing the question whether the consent of the Islamic Ummah is involved in the legitimacy of the state or not, two bases of direct divine legitimacy and divine-popular legitimacy have been given. According to him, based on direct divine legitimacy, four theories and based on divine-popular legitimacy, five theories have been presented about the state in Shiite jurisprudence, and the main questions and common principles of both theories have been extracted (pp. 41-56).

After presenting the preliminary discussions, the author briefly introduces the principles of the nine state theories in Shiite jurisprudence. These theories include the legitimate monarchy, the public appointment of jurists, the public appointment of jurists, the absolute appointment of jurists, the constitutional state with the permission and supervision of jurists, the caliphate of the people with the supervision of the jurist (wali al-faqih), the elective jurists, the Islamic elective state, and the representation of common personal owners.

Formation of political theory in Shiite jurisprudence

The author believes that from the 4th century to the 10th century, apart from brief references to state issues, no political theory was provided by Shiite jurists. The jurists in the Safavid and Qajar eras, with the works of jurists such as Mohaqqeq Karaki and Mulla Ahmad Naraqi, the signs of the formation of political theories in Shiite jurisprudence were gradually revealed (pp. 14-18). According to him, in this period, we are witnessing the development of the appointment theory of guardianship of the Islamic Jurist alongside the elective guardianship of the Islamic Jurist in non-litigious matters (al-omour al-hesbiah) and the jurist (wali al-faqih) of the Muslims of having splendor in conversion customs (19). The encounter of Shiite jurists with concepts_ such as people's rights, freedom, justice, separation of powers, law, equality and tyranny in the constitutional era, and from the author's point of view _revealed two different jurisprudential approaches. One approach emphasized on the previous course and the dual theory of the appointment of jurists and the jurist (wali al-faqih) of Muslims with the title of legitimate state, and on the other hand, the reformist approach presented the theory of the constitutional state, seeking compatibility between tradition and modernity (pp. 19-21). The phase of Shiite political thought during the period of the Islamic Republic moved towards the formation of the state with the thoughts of Imam Khomeini and the founders of the Islamic Republic. This course has been introduced by the author as the most fruitful stages of political jurisprudence in terms of theory and practice. (pp. 21-28)

Appointment theories

After the introduction, the author introduced nine derived opinions. He has included four theories of legitimate monarchy, the public appointment of jurists, the public appointment of the Council of religious authorities and the absolute appointment of jurists under the theories of appointment. Under each theory, he examines the principles, foundations and interpretations of each of these issues.

The Principles of appointment theories

According to the author, appointment theories, apart from the theory of legitimate monarchy, have several principles in common:

• Guardianship (Wilayah): This principle explains the type of state relationship between the people and the ruler,(p. 80) the position given to the jurists by the infallible, (p. 81-82) its domain in the public affairs of the society, the king’s affairs and political issues (p. 82) . Therefore, people have no involvement in the dismissal and installation of the jurist. (p. 84 and 100)

• Appointment: According to this principle of the relationship between the ruler and the legislator, the appointment to the Guardianship (Wilayah) is for all qualified people (p. 87) and in this appointment, it is not possible to rely on the people's choice. (p. 90 and 99-100)
• Jurisprudence: In these theories, conditions are set for the ruler, among them jurisprudence and jurisdiction.
• The scope of the Guardianship (Wilayah): In these theories, the scope of the Guardianship (Wilayah) is considered to be related to the interests of the society and is never limited to the matters of discretion.

The difference of appointment theories

According to the author, theories of appointive Guardianship (Wilayah al-Intisab), despite sharing commonalities in their foundations and essential elements, each possess certain distinctive features of their own. Among these, in the theory of general appointive guardianship of the jurists (al-wilayah al-intisabiyyah al-amma li-l-fuqaha), the ruler (al-hakim) has no discretionary authority beyond the Sharia rulings themselves. (p. 95)

By contrast, in the theory of Absolute Guardianship (al-Wilayah al-Mutlaqah), both the scope of Guardianship (Wilayah) and the conception of jurisprudence (fiqh and faqahah) are expanded. On this basis, the ruler is not confined to non-litigious matters (al-omour al-hesbiah), nor limited by primary and secondary divine subsidiary rulings (al-ahkam al-far’iyyah al-awwaliyya wa al-thanawiyya), nor by man-made statutory laws. At the same time, this guardianship is restricted by the interests (maslahah / Istislah) of Islamic society, as well as by public affairs, governance, and politics. (pp. 107-108)

This theory presents a new understanding of faqahah (juristic authority), some of whose salient features include: close attention to the interests of government and society within fiqh, careful consideration of the role of time and place in ijtihad, and the capacity to resolve the political, economic, and cultural problems of society. (p. 109)

The difference between the theory of public appointing jurist (wali al-faqih) of the Council of religious jurist (wali al-faqih) and the two theories of public appointing jurist (wali al-faqih) of the jurists and absolute jurist (wali al-faqih) is that instead of one person at the top of the pyramid of power, a council of authorities takes over the affairs of the nation (p. 97). Meanwhile, according to the previous two theories, if a righteous jurist exercises guardianship, no more jurists are allowed to exercise guardianship (p. 88. So, the guardian of the matter is determined from among the righteous jurists who have the current guardianship (p. 89).

Functional duality in the theory of legitimate monarchy

Legitimate monarchy is one of the other theories of appointment, according to the author, it is one of the few theories in Shiite political jurisprudence that has been experienced in practice and has been governing the political practice of Shiites for a long time. (p. 58) This theory has two principles: one; The appointment of jurisprudents in non-litigious matters (al-omour al-hesbiah), such as adjudication and propagation of religious rules, enforcement of Hudud (fixed punishments under Islamic law), administration of endowments, etc., which is also interpreted as Sharia. The king has power in this area with conditions such as Islam, Shiism, and having jurist (wali al-faqih). Of course, according to him, this separation was due to due to the imposing of the conditions of the time, and the jurists were forced to be satisfied with this amount of jurist (wali al-faqih) (pp. 59-60). Five interpretations of this theory are presented by Mohammad Baqer Majlesi, Mirza Abolqassem Gilani, Sayyid Ja'far Kashfi, Fazlollah Nouri, and Abdolkarim Haeri Yazdi and Mohammad Ali Araki (p. 61-79).

Selection theories

The constitutional-legitimate state, the caliphate of the people under the supervision of the jurist (wali al-faqih), the elected Guardianship (Wilayah) of the jurist, the Islamic elected state and the representation of the common private owners are the five theories that Mohsen Kadivar examined under the tile of selection theories. According to him, the theories of choice have several common features, the most important of which is increasing the role of the people in the state and reducing the powers of the jurists. Of course, each of the five theories has a special feature that is referred to.

Limitation of power under the theory of constitutional state

Kadivar considers the theory of constitutional state with the permission and supervision of jurists with its two readings (legitimate and constitutional) to be the fruit of the constitutional revolution and in response to the questions and demands raised at that time (pp. 112-115). The most prominent feature is restricting the power by the constitution and the separation of powers (p. 112). According to him, These two interpretations according to the constitutional state have the commonalities and differences. Both of them acknowledge the maintaining the principles of religion, Islamic splendor, observance of justice, consultation and performing the state in the occultation era. However, they differ in the way of managing public affairs during absence, the relationship between law and legislation and the perception of equality and freedom. (p. 118-117)

The author summarizes the principles of this theory based on the opinions of Mirza Naeeni as follows: (a) taking the foundations of the constitutional state from the book of God and Sunnah; (b) maintaining internal systems and protection from foreign interference by the constitutional state; (c) managing accounting affairs by competent authorities with the permission of jurists; (d) drafting a constitution; (e) monitoring the performance of the state by the parliament; (f) taking charge of unwritten affairs in consultation with the people's intellectuals; and (g) observing equality and freedom (p. 119-121).

People's guardianship over each other in the theory of people's caliphate with the supervision of jurist (wali al-faqih)

The theory of people's guardianship under the supervision of jurist (wali al-faqih) has been introduced as the final opinion of Sayyid Muhammad Baqir Sadr, which is explained in Al-Islam Yaqoud al-Hayyat (p. 129). In this theory, man is free from the sovereignty and dominion of other than God and has ruled over his own destination (pp. 129-130). Accordingly, based on the rule of consultation and guardianship, people will exercise sovereignty over each other equally (pp. 129-130), and they will monitor these acts of guardianship and sovereignty in terms of compliance with Islamic regulations. (pp. 129-134). In this theory, apart from the role of the people, jurist (wali al-faqih) plays an essential role in political life (p. 136) and that women, like men, share in the actions of guardianship. jurist (wali al-faqih) is more supervisory than executive. (p. 139)

The possibility of benefiting from human experiences in the theory of the selective guardianship of constrained jurist

The author of the book considers the theory of the selective guardianship of the jurist as the first attempt of the jurists of the Qom seminary regarding the state based on divine-popular legitimacy and is a combination of the traditional theory of the jurist (wali al-faqih) of the jurist and national sovereignty. (p. 141). In Derasat fi Guardianship (Wilayah) al-Faqih by Hossein Ali Montazeri the following issues have been discussed: (a) the jurisprudence of the Islamic ruler; (b) electing the ruler by the people; and (c) restricting the powers of the ruler to the constitution. (pp. 148-149)

According to Kadivar, in this theory, the unelected jurist does not have actual guardianship, and more rights have been predicted for the people than in the theory of Naeeni and Sayyid Muhammad Baqir Sadr. Human experience can be used to manage the society in different time and place conditions, and finally the Islam of the state will be ensured by observing the conditions of the Islamic ruler. (p. 158)

Restricting the jurist (wali al-faqih) of jurists in the theory of Islamic elected state

The theory of Islamic elected state was presented by three Iraqi and Lebanese jurists, Seyyed Mohammad Baqer Sayyid Muhammad Baqir Sadr, Mohammad Javad Mughniyeh and Mohammad Mahdi Shams Al-din. (p. 159). According to Mohsen Kadivar, this theory does not give any special political privileges to the jurists and their duties are limited to judging and calling to good. Also, this theory of the Islamic state based on direct divine legitimacy is specific to the time of the infallible. According to him, in this theory, the management of political affairs during occultation is left to the people themselves. To be sure, the fixed rules of Sharia must be observed and the changing rules must not be inconsistent with the fixed rules. Finally, this theory considers the form of the Islamic state to be a council, and its being Islamic is due to the Islamic laws. (p.173-174)

The impact of jurisprudential rules of ownership and representation on the political life of society

The theory of the representation of common private owners regarding the state in Shiite jurisprudence was presented by Mahdi Haeri Yazdi in his book Wisdom and Government (p. 175). The establishing political legitimacy on the jurisprudential rule of ownership and the issue of choice based on the jurisprudential rule of representation, and finally specifying the place of religion and jurisprudence in the politics and planning of society have been reviewed. (p. 175)

Criticism and evaluation of the book

After its publication, the book Theories of State in Shiite Jurisprudence was criticized and evaluated by some political jurisprudence researchers, including Seyyed Sadeq Haqiqat. According to him, the prominent feature of the book is that for the first time, it has comprehensively classified the theories of Shiite political jurisprudence. Moreover, by distinguishing between the principles, foundations, and interpretations, it has made possible a precise understanding of the theories, and it has shown well that there is only one reading in Shiite jurisprudence. . Of course, according to him, this book collects the theories of sovereignty or the foundations of legitimacy, not the state theories. . Another point is that the book is neither analytical nor critical in the strict sense, but the level of this writing is description and classification. The other point is that the theories presented are in the field of political thought, not only in political jurisprudence.. The lack of comprehensiveness in collecting theories related to the state is another criticism that has been made to the book..

Hamze Ali Vahidimanesh, in his review of the book Theories of State in Shiite Jurisprudence, believes that this book ignored the common positions of the jurists on the issue of guardianship of the Islamic Jurist and tried to highlight the differences.. He did not take into account the works of theoreticians and studied only a part of the works that would satisfy his goals..