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== Jurisprudence and Reason (book) ==
Author: Alireza Dehqani
Author: Alireza Dehqani
 
* '''digest'''
The book Jurisprudence and Reason written by [[Abulqasem Alidoust]], in Persian language, has tried to develop the use of reason in deriving Sharia rulings by presenting the features of reason in understanding Islamic rulings. Unlike some contemporary Usulians, Alidoust has accepted the rule of interdependence between the rule of reason and the rule of Sharia.
The state theories in Shiite jurisprudence 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 Alidoust, a professor of Kharij Fiqh and Usul Fiqh in Qom seminary, the reason can recognize the meaning of Sharia rulings by observing the frameworks and rules of conventional seminary ijtihad and also discover the purposes of Sharia by using the Quran and Narration. As a result, it is possible to understand the rulings in a system and body whose components are coordinated with each other. The book seeks to expand the accountability of the Sharia to more diverse issues by promoting the independent position of reason in deriving rulings and rereading it in a coherent system.
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 Mohaqeq Karaki and Mullah 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 era of the Constitution and the Islamic Republic.
According to the book of jurisprudence and reason, although the purposes of the Sharia have a strong role in deriving rulings, in this respect one should use reason in a systematic manner and do such a thing according to the texts expressing the purposes in the book and the Sunnah. In this regard, Alidoust believes that neglecting the purposes of the Sharia in deriving rulings causes fatwas to become illegal.
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 theIslamic jurist are among the criticisms that have been made to this book. In contrast to proper collection, documentation and fluent literature are among its advantages.
In the current book, Alidoust emphasizes the necessity of simultaneously paying attention to both independent and non-independent applications of reason in deriving rulings. He also disagrees with following all rulings based on real interests and corruptions, and states that sometimes the enactment of a ruling may not be due to expediency or expediency, and that legislation itself causes the creation of posterior expediency. He also explains in detail the rule reason and the rule of Sharia and points out the opposition of jurists such as Seyyyed [[Abulqasem Khoei]] and [[Sheikh Morteza Ansari]] to this principle. Furthermore, he points to cases of the use of reason in discovering the meaning of rulings by them to show that the mentioned jurists relied on it in practice while theoretically opposed to the inherent rule.
== Introduction ==
== The Author ==
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 extraction 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 the good and forbidding the evil, hodoud, holy war (Jihad), khums, 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 <ref>Haqiqat, "Criticism and review of state theories in Shiite jurisprudence", p. 182.</ref>..
Abulqasem Alidoust is one of the professors of the Kharij Fiqh (since 2003) and the Usul Fiqh (since 1375) in Qom seminary. Some of his books are as follows: [[Jurisprudence and common sense|jurisprudence and common sense]], [[Jurisprudence and custom|jurisprudence and custom]], [[Jurisprudence and expediency|jurisprudence and expediency]], [[Jurisprudence and contract law|jurisprudence and contract law]], [[General Qur'anic evidence|general Qur'anic evidence]], [[Jurisprudence and contract law: general evidence of narration|jurisprudence and contract law: general evidence of narration]] and Salsabil fi Usul al-Tajzyyah wa Irab.
=== The structure of the book and its Content ===
The book of Jurisprudence and Expediency was recognized as the selected work of the Book of the Year Award of the Islamic Republic in 2009. Currently, he is a member of the faculty of the jurisprudence and Law Research Institute of the Islamic Culture and Thought Research Institute, the president of the Qom Seminary Islamic Jurisprudence and Law Scientific Association, a member of the Qom Seminary Teachers' Society and the head of the Transfer Sciences Chair of the Secretariat for theorizing, criticizing and debating chairs.
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 governorship, 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).
Besides authoring works that show he pays attention to contemporary jurisprudence issues, Alidoust has been teaching political jurisprudence and judicial jurisprudence for about four years, which, despite the importance of both of them in contemporary jurisprudence, are rarely taught in the fields <ref>Biography of Ayatollah Alidoust", Abolqasem Alidoust website.</ref>.
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 probate matters (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).
== The Importance of the Book ==
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 authority, the elective jurists, the Islamic elective state, and the representation of common personal owners.
Contrary to the common view among the jurists who practically leave aside the reason in jurisprudence and consider the Qur'an and the Sunnah to be sufficient, the book Jurisprudence and Reason has tried to revive the place of the reason in the contemporary jurisprudence of the Imamiyyah. The author of Jurisprudence and Reason states in his other works that reason, is the most important element in discovering the laws governing human sciences, in addition to being important in jurisprudential inference.
== Formation of political theory in Shiite jurisprudence ==
According to him, recognizing the concept and function of reason can help both in the understanding of religious texts and the production of Islamic humanities which is one of the concerns of today's researchers supported by the Islamic Republic <ref>Alidoust, "An approach for the production of Islamic humanities...".</ref>. Accordingly, Alidoust believes that due to we can talk about nuclear jurisprudence, art jurisprudence, security jurisprudence and the like to develop the tools of reason in inference. The current book was taught by one of Alidoust's students named Seyyed Mehdi Mousavi in 43 sessions <ref>Channel of reflections on jurisprudence methodology.</ref>.
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 Mohaqeq Karaki and Mullah 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|theory of guardianship of the Islamic Jurist]] alongside the elective guardianship of the Islamic Jurist in probate matters and the authority of the Muslims of having splendor in conversion customs (19).
== The Framework of the Book ==
The encounter of Shiite jurists with concepts_ such as [[People's rights|people's rights]], [[Freedom|freedom]], justice, separation of powers, [[Law|law]], [[Equality|equality]] and [[Tyranny|tyranny]] in the constitutional era, and from the author's point of view _made us aware of two different jurisprudential approaches. One approach emphasized on the previous course and the dual theory of the appointment of jurists and the authority of Muslims with the title of legitimate state, and on the other hand, the reformist approach presented the theory of the constitutional state, following the compatibility of the two categories of tradition and modernity (pp. 19-21). The code 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)
In addition to the preface and the introduction, the book of jurisprudence and reason has four chapters and a conclusion, which are as follows:
== Appointment theories ==
After the introduction, the author introduced nine extractive opinions. He has included four theories of [[Legitimate monarchy|legitimate monarchy]], [[The public appointment of jurists|the public appointment of jurists]], [[The public appointment of the Council of religious authorities|the public appointment of the Council of religious authorities]] and [[The absolute appointment of jurists|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.
1. The generalities of reason: In this chapter, the application of the concept of reason in religious sources (Qur'an and narrations) as well as its use in Islamic sciences (words, ethics, logic, philosophy and jurisprudence) are explained. Then the various divisions of reason, including theoretical and practical reason, have been explained. Then, the influence of reason in the understanding of goodness and ugliness have been examined.
=== The Principles of appointment theories ===
2. The independent [[Use of reason in deriving the rulings of Sharia|use of reason in deriving the rulings of Sharia]]: In this chapter, the rule of connection between the ruling of reason and the ruling of Sharia is described in two chapters; In the first chapter, the generality and magnitude of the principle of the rule of law have been proven and the intended meaning of Alidoust has been clarified. On the other hand, in the second chapter, the smallness of the rule has been proposed from two perspectives: one from the perspective of the role of reason in the criteria of Sharia rules, and the second from the perspective of the role of reason in the rules of law and rules of Sharia.
According to the author, appointment theories, apart from the theory of legitimate monarchy, have several principles in common:
3. Non-independent use of reason: In this chapter, the focus is on the instrumental and non-independent use of reason in three sections: 1. The instrumental use of reason in proving fundamental arguments, interpreting religious evidence, understanding the evidence, forming valid analogies, and examining the documents of narrations, 2. Explaining the application of the clearance and security of reason, and the explanation of the ruling of reason in events without a ruling and unknown events, while discussing the two theories of "Qubhe Iqabe Bela Bayan" and "Haq Al-Ta'a". 3. The uses of reasoning in inference and ijtihad.
   
4.  Pathology and answers to doubts and questions: In this chapter, firstly, the harms of using reason in inference are investigated and then the ways to deal with these harms are stated. Then doubts have been expressed in order to question the validity of the perceptions of reason and rational judgments. After this, the relationship between the rule of reason and the building of reason has been discussed.
* Velayat: 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)
   
5. Conclusion: The mission of the trustees Inference: In this chapter, some points about the necessity of technical and comprehensive ijtihad in the age of absenteeism and avoiding harm have been stated.
* Appointment: According to this principle of the relationship between the ruler and the legislator, the appointment to the velayat 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)
== Principles and Assumptions ==
* Jurisprudence: In these theories, conditions are set for the ruler, among them jurisprudence and jurisdiction. 
* The scope of the velayat: In these theories, the scope of the velayat is considered to be related to the interests of the society and is never limited to the matters of discretion.
=== The need to pay attention to the red lines of conventional ijtihad ===
=== The difference of appointment theories ===
According to Alidoust, what is meant by the application of reason or the purposes of the Sharia is not that anyone puts his illusions in the name of the purposes of the Sharia next to the appearances of the book and the Sunnah and puts what he thinks is the spirit of the law and the purposes of the Sharia in the place of the text. Accordingly, the jurist should respect the Qur'anic and narrative texts, use the set of religion and Sharia in their understanding, and after considering the intellectual understanding, turn to infer the verdict (pp. 147-148).
According to the author, in addition to having commonalities in the foundations and principles, the theories of appointment also have some specific features for themselves. Among other things, in the theory of the appointment of public jurists, the ruler has no authority beyond the Sharia rulings. Accordingly, the ruler is not bound by the probate affairs and the primary and secondary recommendations of God and the laws of human affairs. On the other hand, this velayat is bound by the interest of the Islamic society, public affairs, state and politics. (pp. 107-108). This is a new theory which represents jurisprudence, some of its features include paying attention to the expedients of the state and society in jurisprudence, paying attention to the role of time and place in ijtihad and the ability to solve the political, and, finally, economic and cultural problems of society. (p. 109)
=== Characteristics of appropriate inference ===
The difference between the theory of public appointing authority of the Council of religious authority and the two theories of public appointing authority of the jurists and absolute authority 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).
Based on the current book, as mentioned in the introduction of it, the appropriate and correct inference is an inference that is adorned with the originality of the sources, comprehensive and disciplined research while being free from harms such as mixing with praise and the material of the message. Also, paying attention to sources of jurisprudence and having consistent principles of ijtihad is a necessary condition for ijtihad (p. 18). Based on this fact, in deriving rulings, the collection of Sharia and its general goals should be considered (p. 158).
=== Functional duality in the theory of legitimate monarchy ===
=== Application of Sharia collection and its purposes in inference ===
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 probate matters, such as decree and propagation of religious rules, enforcement of limits, 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 authority. Of course, according to him, this separation was due to the imposing the conditions of the time, and the jurists were forced to be satisfied with this amount of authority (pp. 59-60). Five interpretations of this theory are presented by Allameh Majlesi, Mirzaye Qomi, Seyyed Jafar Kashafi, Fazolollah Nouri, and Abd Al-Karim Haeri Yazdi and Mohammad Ali Araki (p. 61-79).
The Jurisprudence and Reason book deals with the application of reason in two separate parts which occupies more than half of the work, in order to specify the independent and non-independent uses of reason in order to develop the use of reason in inference and the ability to solve newly emerging jurisprudential issues.
== Selection theories ==
In another article, Abulqasem Alidoust also valued the possible uses of reason and said that the best use of reason is to discover the meaning of rulings, and the other use is unruly and distasteful expedients, which are called Istislah in Sunnis. According him, although the importance of the purposes of the Sharia in deriving rulings is undeniable, in discovering the purposes of the Sharia and the meaning of the rulings, reason must be used systematically. That is, according to the texts showing the purposes in the books and the Sunnah, he achieved the purposes and evidence <ref>Alidoust, "Capacities of jurisprudence in facing the problems of the contemporary world".</ref>.
[[The constitutional-legitimate state]], [[The caliphate of the people under the supervision of the authority|the caliphate of the people under the supervision of the authority]], [[The elected governorship of the jurist|the elected governorship of the jurist]], [[The Islamic elected state|the Islamic elected state]] and [[The representation of the common private owners|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.
=== The Necessity to know the Purposes of Sharia ===
=== Limitation of power under the theory of constitutional state ===
According to the book, it is necessary for the jurist to be familiar with the purposes of the Sharia. Furthermore, the jurist should not ignore the purposes and goals of the Sharia in deriving rulings from the evidence, and examine the evidence by neglecting it. Therefore, ijtihad requires, in addition to prerequisites such as familiarity with Arabic literature, Rijal and Usul, theological prerequisites such as recognizing the truth of man from the perspective of religion, expecting religion from mankind, knowledge of the essence and complex of religion, and awareness of the purpose of the Sharia, and neglecting these matters causes illegalization becomes a fatwa (p. 17).
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 Results of Paying Attention to the Goals of Sharia ===
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).
In the chapter on the independent use of reason in deriving the rulings of Sharia, the book has provided evidence from Quranic texts and narrations to make it clear how important it is to pay attention to the goals and purposes of Sharia. It includes the following issues.Orphans' property: Abulqasem Alidoust, referring to the revelation of verses 10 of Surah Nisa and 152 of Surah An'am in the prohibition of losing the property of orphans, pointed out the behavior of some Muslims who, after the revelation of these verses, were motivated to escape from the responsibility of taking care of orphans, their food separated from their lives. This caused the revelation of verse 220 of Surah Al-Baqarah, according to which God's will is placed on it to take care of orphans and their property in the best way. Based on this, although God deems it necessary to respect the interests of orphans, this caution should never lead to the weakening of the guardians' motivation. Therefore, the mentioned verses indicate that the Holy Quran has paid attention to both the spirit and the truth of the ruling, that is, the duty of guardianship of orphans, and the collection of Sharia and rulings. According to Alidoust, neglecting the simultaneous observance of the two mentioned aspects can lead to the issuance of strict and burdensome rulings.
=== People's guardianship over each other in the theory of people's caliphate with the supervision of authority ===
=== Classification of Religious Texts ===
The theory of people's guardianship under the supervision of authority has been introduced as the final opinion of Seyyed 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, authority plays an essential role in political life (p. 136) and that women, like men, share in the actions of guardianship. Authority is more supervisory than executive. (p. 139)
In the book, Alidoust has divided religious texts, i.e. the verses of the Qur'an and the traditions of the infallible, into two parts: Shari'a rulings, as well as purposes and wisdom.
=== The possibility of benefiting from human experiences in the theory of the selective guardianship of constrained jurist ===
Rulings: Texts that express the Shari'a and state the status or obligations.
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 authority of the jurist and national sovereignty. (p. 141). In Derasat fi Velayat 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)
The general purposes of the Sharia and the wisdom of rulings: texts that do not express the ruling and the law, but rather express the general purposes of the Sharia or the wisdom of rulings. <ref>Alidoust, "Jurisprudence and objectives of Sharia law".</ref>
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 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)
==  Claims and Evidence ==
=== Restricting the authority of jurists in the theory of Islamic elected state ===
=== The need to simultaneously pay attention to both applications of reason in inference ===
The theory of Islamic elected state was presented by three Iraqi and Lebanese jurists, Seyyed Mohammad Baqer 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 ===
Based on what is stated in the book of Jurisprudence and Reason, in a general division, the use of reason in deriving the ruling can be divided into two independent and non-independent categories:
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 ==
* Independent: In this application, reason is an independent source of the Quran and Narration. When reason finds it definitely expedient, it can be considered obligatory by religion, and on the other hand, by recognizing the definite corruption of reason, it can be declared unlawful by religion.
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. <ref>Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 181.</ref>. Of course, according to him, this book collects the theories of sovereignty or the foundations of legitimacy, not the state theories. <ref>Haqiqat, "Examination and criticism of the state theories in Shiite jurisprudence", p. 182.</ref>. 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.<ref>Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 182.</ref>. The lack of comprehensiveness in collecting theories related to the state is another criticism that has been made to the book.<ref>Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 183.</ref>.
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.<ref>Vahidimanesh, "Criticism on the book on state  theories in Shiite jurisprudence", p. 180.</ref>. He did not take into account the works of theoreticians and studied only a part of the works that would satisfy his goals.<ref>Vahidimanesh, "Criticism on the book of State theories in Shiite jurisprudence", p. 210.</ref>.
* Non-independent: In this application, the reason is at the service of other sources and is a tool that can be used to deduce the religious ruling from sources such as the Qur'an and Narration. For example, the jurist takes help from his reason when faced with the "leader of prayer" and obtains the sharia obligation of prayer from the appearance of the command form in the obligation and the evidence of appearances (p. 24-25).
== References ==
*
   
=== Opposing the obedience of all the rulings of real interests and corruptions ===
* Haqiqat, Seyyed Sadeq, "Examination and Criticism of State Theories in Shiite Jurisprudence", Political Science Quarterly, No. 48, 2008.
According to him, examining the issue of following rulings from the real benefits and corruptions is not so difficult from the point of view of reason. Because the certain reason knows that religion and Sharia have sacred and real goals that can be seen in the form of expediency and corruption. However, before the judgment is assigned to a matter, it is not necessary that there be expediency or corruption in it, because it is possible only There should be an expedient ruling in the legislation (p. 106-107).
*      Vahidimanesh, Hamze Ali, "Criticism of the book State theoriesin Shiite Jurisprudence", Islamic State Quarterly, Year 11, Number 3, 2005.
=== Reasons and evidence of the rule of compliance with real interests and corruptions ===
== Footnote ==
In his book Jurisprudence and Reason, Alidoust has stated some of the Qur'anic verses and the traditions of the innocents in the direction of following the rulings from the real interests and corruptions. He has also stated evidence against it. Among these, according to the Holy Qur'an, the law of prayer is based on a real expediency and in the direction of preventing them from doing ugly and obscene things, on the one hand. In the Holy Qur'an, the reason for banning certain foods on the Jews was to punish them for their obscene deeds, not because there has been corruption in eating those foods, on the other hand. He also referred to a tradition of Imam Sadiq (PBUH), according to which whatever God has forbidden or commanded has a divine test (p. 108-111).
[[fa:نظریه‌های دولت در فقه شیعه (کتاب)]]
=== Explaining the meaning of obeying the rules of benefits and corruptions ===
[[category:Books on Political Fiqh in Persian]]
After mentioning some problems with the famous theory of justice about expediency and expediency, Abulqasem Alidoust states that the rule of following rulings from expediency and expediency is not a well-known and accepted rule among late Shia fundamentalists. According to what is stated in the book of jurisprudence and reason, it is difficult to accept the following of rulings from the interests and corruptions of the past, and as a result, it should be said that rulings are sometimes due to expediency and corruption existing in the ruling, and sometimes due to the expediency hidden in the legislation and its implementation and it is obligatory (p. 118).
[[category:Books by Mohsen Kadivar]]
=== The concept and arguments rule of correlation between reason and law ===
The present book considers the rule of correlation between reason and law to be provable by rational and narrative reasons. In the chapter related to the rule of correlation between reason and law, first of all, it defines the concept of this rule by explaining each of the terms, including ruling, rule of reason, and correlation between reason and law. Then, he examines the reasons that prove this rule. According to Alidoust, regarding the rule "All of us are ruled by the Sharia, the rule is by the reason" (whenever the Sharia rules on a subject, the reason also rules on it), it should be said that the reason is general, according to the understanding of the Sharia. He acknowledges the Shari’a rulings and issues judgments about them, but it is not the case that reason understands all the Shari’a rulings without paying attention to his words and rules accordingly (p. 119).
In order to strengthen his opinion, the book of jurisprudence and reason also states and answers the problems of the rule of correlation between reason and law. Among other things, by referring to the verse " And We will not punish until We send a messenger " (Isra', 15), he clarifies that contrary to the opinion of the claimants, this verse does not imply the negation of the rule. The claimants believe that the negation of punishment in the verse was stated after the sending of the prophets, and thus there is no room left for the understanding of reason. Alidoust believes that if a messenger was sent and used reason as a proof, and then someone opposed the verdict of reason, this the chastisement is after the sending of the messenger and therefore does not contradict the verse (p. 81).
=== Reasons and evidence ===
According to Alidoust, if we don't accept the rule of correlation between reason and law, the shari'a obligation of justice and the shari'a sanctity of injustice are not proven by understanding the goodness of justice and the ugliness of injustice by reason (p. 70). He also relies on the fact that "Alaf and Lam" in "Al-Aql" are "Alaf and Lam" of the genus, he believes that this rule includes the reason of everyone and it cannot be considered specific to the reason of some reasons or properties such as prophets and saints. (p. 71).
Abulqasem Alidoust then proved the rule of correlation between reason and law by relying on rational and narrative reasons. In the chapter on rational reason, he has stated that when the theoretical reason finds the connection between two matters such as the necessity of the preamble and the preamble to be correct and real, and finds an end to it, he considers the connection to be inevitable and believes that every wise legislator should distinguish between these two. (pp. 94-95)
In addition, according to the book, it is possible to use the reason of narration for the benefit of the rule of correlation between reason and law. Referring to religious texts and its incomplete induction leaves no doubt that the understanding of reason is proof. It is also proved by the implication of obligation, the connection between its understanding and the ruling of Shari’a. To strengthen his opinion, the book mentions three narrations as examples. Alidoust has also presented three narrations, based on which, the connection between the rule of reason and Sharia is proved by means of conformity and commitment (pp. 96-97).
=== Confusion in the words of opposing jurists ===
After explaining the major premise of the rule of correlation between reason and law, the book goes to the minor premise of rule of correlation between reason and law to clarify to what extent the reason can discover the meaning and reason of the rulings of Sharia. Alidoust mentions some examples of the fundamentalists who deny the principle of rule of correlation between reason and law to show that the opponents of the rule of rule of correlation between reason and law who believe that reason is absolutely unable to understand the meaning of rulings, have not fully adhered to this opinion. Finally, he concluded that the practice of jurists shows that, in short, reason is the source that they have made an inference. This means that the jurist has reached the criteria of the religious ruling with his reason and then derives the ruling (pp. 125-127); Some of these jurists are:
# In some cases, Seyyed Abulqasem Khoei considers it probable that the reason reaches the rulings and sometimes gives fatwas with trust in the reason. For example, regarding the permissibility or impermissibility of delaying the expiation of fasting, the delay is not permissible, unless he is sure that he will be able to perform it in the future. Then he considers reason as the only source of this ruling.
# Sheikh Ansari sometimes relied solely on reason in deriving the religious ruling. For example, when he wants to prove the permissibility of dealing with property that the owner did not allow, he considers small possessions of property belonging to others to be permissible as a definite ruling of reason.
== Pathology of inference using reason ==
In the fourth and last part of the book, together with the conclusion, it mentions the source of the harms in inference and then the harms of referring to reason and its application in the inference of Sharia rulings. It has been clarified that this process may cause abuse by the enemies of Sharia in the contemporary world and this illusion It showed that the Shari’a was limited to a certain time and place, and as a result, in the present era, the thoughts that fit the conditions of the new age should be replaced with the Sharia. In this regard, while paying attention to the origin of the harms related to the use of reason in inference, Alidoust has also listed examples of these harms.
=== The origin of harms in inference ===
The origin of the harm related to the use of reason in inference is divided into two categories; 1. unnecessary stagnation on words, and 2. Intellectualism and lack of devotion (pp. 226-227).
=== Harms of using reason in deriving rulings ===
In this context, the book mentions three harms that jurists should avoid:
Unreliable suspicion and Istihsan: The book of Jurisprudence and Reason considers approval to be the imposition of personal tastes in the name of reason and on the enemies of reason which should be avoided. For example, some researchers have been criticized for considering that the child is directly related to the mother and indirectly to the grandfather, and that the guardianship of the child after the death of the father is with the mother (p. 189).
Improper use of reason: To distinguish the subjects of rulings such as water and blood or instances of subjects such as absolute and added water, one must refer to custom, not reason (p. 190). Because there is a strong possibility that reason will make mistakes in recognizing things that are common in nature.
The mistake of the wisdom of the ruling with the subject of the ruling: According to Alidoust, every ruling has a subject on which the ruling is made, and it has a wisdom that is assigned to that subject because of that ruling. For example, prayer is the subject of the ruling on the obligation of prayer, and its wisdom is to prevent fornication and malevolence. Therefore, it is not possible to cancel the nature of the obligation of prayer and consider any act that prohibits fornication and malevolence as obligatory (pp. 191-192).
== refrences ==
# Alidoust, Abulqasem, "Jurisprudence capacities in a dream with contemporary world issues", Abolqasem Alidoust website, date of entry: August 7, 2016, visited date: December 2, 2021.
#  Alidoust, Abulqasem, "An approach for the production of Islamic humanities in the context of the interaction of jurisprudence with customs, reason and expediency", Abolqasem Alidoust website, November 12, 2018, December 2, 2021.
# Alidoust, Abolqasem, juriprudence and reason, 9th edition, Tehran, Islamic Culture and Thought Research Organization, 2016
== footnotes ==

Revision as of 13:12, 22 April 2025

Author: Alireza Dehqani

  • digest

The state theories in Shiite jurisprudence 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 Mohaqeq Karaki and Mullah 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 era of the Constitution 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 theIslamic jurist are among the criticisms that have been made to this book. In contrast to proper collection, documentation and fluent literature 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 extraction 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 the good and forbidding the evil, hodoud, holy war (Jihad), khums, 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 [1]..

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 governorship, 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 probate matters (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 authority, 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 Mohaqeq Karaki and Mullah 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 probate matters and the authority 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 _made us aware of two different jurisprudential approaches. One approach emphasized on the previous course and the dual theory of the appointment of jurists and the authority of Muslims with the title of legitimate state, and on the other hand, the reformist approach presented the theory of the constitutional state, following the compatibility of the two categories of tradition and modernity (pp. 19-21). The code 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 extractive 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:

  • Velayat: 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 velayat 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 velayat: In these theories, the scope of the velayat 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, in addition to having commonalities in the foundations and principles, the theories of appointment also have some specific features for themselves. Among other things, in the theory of the appointment of public jurists, the ruler has no authority beyond the Sharia rulings. Accordingly, the ruler is not bound by the probate affairs and the primary and secondary recommendations of God and the laws of human affairs. On the other hand, this velayat is bound by the interest of the Islamic society, public affairs, state and politics. (pp. 107-108). This is a new theory which represents jurisprudence, some of its features include paying attention to the expedients of the state and society in jurisprudence, paying attention to the role of time and place in ijtihad and the ability to solve the political, and, finally, economic and cultural problems of society. (p. 109) The difference between the theory of public appointing authority of the Council of religious authority and the two theories of public appointing authority of the jurists and absolute authority 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 probate matters, such as decree and propagation of religious rules, enforcement of limits, 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 authority. Of course, according to him, this separation was due to the imposing the conditions of the time, and the jurists were forced to be satisfied with this amount of authority (pp. 59-60). Five interpretations of this theory are presented by Allameh Majlesi, Mirzaye Qomi, Seyyed Jafar Kashafi, Fazolollah Nouri, and Abd Al-Karim 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 authority, the elected governorship 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 authority

The theory of people's guardianship under the supervision of authority has been introduced as the final opinion of Seyyed 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, authority plays an essential role in political life (p. 136) and that women, like men, share in the actions of guardianship. Authority 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 authority of the jurist and national sovereignty. (p. 141). In Derasat fi Velayat 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 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 authority 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 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. [2]. Of course, according to him, this book collects the theories of sovereignty or the foundations of legitimacy, not the state theories. [3]. 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.[4]. The lack of comprehensiveness in collecting theories related to the state is another criticism that has been made to the book.[5]. 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.[6]. He did not take into account the works of theoreticians and studied only a part of the works that would satisfy his goals.[7].

References

  • Haqiqat, Seyyed Sadeq, "Examination and Criticism of State Theories in Shiite Jurisprudence", Political Science Quarterly, No. 48, 2008.
  • Vahidimanesh, Hamze Ali, "Criticism of the book State theoriesin Shiite Jurisprudence", Islamic State Quarterly, Year 11, Number 3, 2005.

Footnote

  1. ↑ Haqiqat, "Criticism and review of state theories in Shiite jurisprudence", p. 182.
  2. ↑ Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 181.
  3. ↑ Haqiqat, "Examination and criticism of the state theories in Shiite jurisprudence", p. 182.
  4. ↑ Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 182.
  5. ↑ Haqiqat, "Examination and criticism of state theories in Shiite jurisprudence", p. 183.
  6. ↑ Vahidimanesh, "Criticism on the book on state theories in Shiite jurisprudence", p. 180.
  7. ↑ Vahidimanesh, "Criticism on the book of State theories in Shiite jurisprudence", p. 210.
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