Jurisprudential and Legal Foundations of Qualifying Officials (book)
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| Book Information | |
|---|---|
| Author | Esrafil Sobhani |
| Style | Argumentative Fiqh |
| Language | Persian |
| Pages | 234 |
| Publication Information | |
| Publisher | Maks-e Andisheh |
- Abstract
Jurisprudential and Legal Foundations of Qualifying Officials is a Persian-language book in the field of Political Fiqh that examines the issue of qualifying individuals for governmental positions in an Islamic government from jurisprudential and legal perspectives. The book's author, Esrafil Sobhani, argues that for an Islamic government to maintain its effectiveness, it must seriously address the issue of qualifying government officials, and he refers to the Quran, Sunnah, and reason to prove his claim.
The author considers the possession of justice (*'adalah*) to be one of the components emphasized by the Quran for officeholders and believes that based on the consensus of the wise (*bana' al-'uqala'*), preserving the Islamic system and social interest lies in avoiding the delegation of positions to unworthy individuals. The author also proves the necessity of qualification based on the principle of *istishab* (presumption of continuity), the principle of precaution, the rule of presumption of absence, and the rule of expediency (*maslahah*).
He believes that the right of the righteous to govern society, the right to social self-determination, and the pursuit of justice are among the most important legal foundations for examining the qualifications of those holding governmental positions. On the issue of the authority for determining qualifications, he believes that according to the Islamic perspective, qualification is both the right of the people and the right of the government.
Finally, the author addresses the challenge that the qualification process poses to the prohibition against violating privacy. In his view, violating the privacy of individuals, while acknowledging the necessity of qualifying candidates for government positions, is permissible only under a secondary ruling (such as preserving the Islamic system) and by the decree of the legislator (for discovering conspiracies, espionage, etc.).
Brief Introduction and Structure
The book *Jurisprudential and Legal Foundations of Qualifying Officials* is a work in the field of Political Fiqh by Esrafil Sobhani, published in Persian by Maks-e Andisheh publications in 1401 SH. Esrafil Sobhani holds a Ph.D. in Fiqh and Islamic Law and is a faculty member at the Science and Research Branch of Islamic Azad University in Tehran. He completed this book based on the study and description of existing materials, interviews with experts, and by consulting centers such as the Guardian Council Research Institute, the Islamic Parliament Research Center, and the Judiciary's Research Center. The author claims that this book is the first research of its kind in the country on the subject of qualification.
Structure
- Jurisprudential and Legal Foundations of Qualifying Officials* is organized into five chapters. The first chapter, under the general title of "Generalities," addresses topics such as the statement of the problem, research objectives, hypotheses, and research methodology, and explains concepts required for the research, such as qualification and non-qualification (pp. 11-38). The second chapter explains the jurisprudential foundations of qualification, including valid evidence and indicators such as the Quran, Sunnah, and the consensus of the wise, as well as practical principles and jurisprudential rules like the principle of *istishab*, the principle of precaution, the rule of validity, and the rule of expediency (pp. 39-100). The third chapter discusses the legal foundations of qualification, such as the principle of the rule of law, the principle of being documented and reasoned, the principle of the right of defense for candidates, and the principle of lacking the required conditions (pp. 101-124). The fourth chapter explains the authority for determining and confirming qualifications, the various opinions and views on it, and the challenges of qualification with general rules and issues related to privacy (pp. 125-202). Finally, the fifth chapter provides a summary and conclusion of the discussions and offers suggestions to decision-making bodies and researchers in this field (pp. 203-219).
The Position of Qualification and Explanation of its Concept
According to the author, every system of governance, whether it arises from human thought or divine beliefs, pursues certain goals and ideals, and achieving these goals depends on multiple components, of which the selection of government officials is one of the most effective (p. 13). He states that according to evidence from the prophetic and Alid *sirah* (conduct), the appointment of officials by them was accompanied by definite requirements and verifications, blocking any path for permissiveness and negligence. For this reason, the author, in the present research, attempts to analyze the jurisprudential and legal foundations for verifying and determining the qualifications and criteria based on the merit of individuals under consideration for selection or appointment (pp. 14-17).
Conceptualization
The author defines qualification as a state that arises after conducting investigations within the frameworks determined by Imami jurisprudence and positive law, wherein the competence and worthiness of the individual are confirmed. Regarding the difference between "confirmation of disqualification" (*ihraz 'adam salahiyyat*) and "non-confirmation of qualification" (*'adam ihraz salahiyyat*), he points out that the former is a state where, according to the mentioned frameworks, the individual's qualification is not confirmed. However, non-confirmation of qualification is a state where the individual's qualification is neither confirmed nor rejected; rather, the qualifying authority does not attain knowledge of the individual's worthiness (p. 31). In the author's belief, mere non-confirmation of qualification lacks a rational and scientific basis; conditions must be confirmed, and if an individual has the necessary qualifications for a position, they should be approved, and otherwise, rejected (pp. 163-170).
The author's meaning of the concept "official" (*kargozar*), whose qualifications must be confirmed, refers to those political authorities who have governmental powers and receive salaries from the public treasury, such as representatives, governors, district governors, etc. (p. 32).
Jurisprudential Foundations of Qualification
The author considers one of the most important duties of an Islamic government to be the qualification of individuals for governmental responsibilities, because employing incompetent managers and officials leads to the inefficiency of the Islamic government. Therefore, individuals who hold administrative and governmental positions must be practitioners of Islamic rulings and standards in their speech and behavior (p. 41). He believes that in the discussion of qualification, if an individual claims to have the conditions and characteristics for a governmental position, it is necessary for them not only to possess those characteristics in reality (*maqam al-thubut*) but also to be able to prove them in the realm of evidence (*maqam al-ithbat*) (p. 45).
To prove his claim regarding the necessity of qualifying individuals for governmental positions, the author refers to several jurisprudential foundations, which include evidence, principles, and rules. The evidence he cites is the Quran, the Sunnah, and reason (p. 46). According to him, if no direct evidence is found, one can refer to practical principles such as *istishab*, *bara'ah*, and *ihtiyat*, and finally, he resorts to jurisprudential rules such as the rule of validity and the rule of expediency (p. 74).
The Holy Quran
According to the author, based on Quran 4:58, positions and responsibilities are considered divine trusts with individuals and must be placed in the hands of those whom the Quran refers to as "qualified" (*ahl*). One of the conditions for being qualified is having justice and piety (*taqwa*) (pp. 51-52). Also, "patience" and "certainty" are criteria according to Quran 32:24 by which the leader and guide of the community is chosen. According to Quran 24:55, "faith" and "righteous deeds" are two essential conditions for those to whom God has promised to grant governance (pp. 56-57).
One of the most important attributes required for the managers of an Islamic government according to the teachings of the Holy Quran is "justice." In the author's belief, when justice is a condition for individuals like witnesses and the prayer leader (Quran 5:8), reason dictates that this attribute is necessary *a fortiori* for key positions, such as management and governmental posts (pp. 58-59).
The Sunnah
By referring to the theoretical and practical Sunnah in the conduct of the Ahl al-Bayt (a), the author has extracted conditions based on which every government should select its officials (p. 61). According to him, based on Letter 53 of Nahj al-Balagha, state officials should be chosen from experienced and modest people, from pious families with a distinguished history in Islam, and from those whose greed is less and whose foresight is greater (p. 62). In the same letter, when specifying some conditions for commanders, Imam Ali (a) points to qualities such as benevolence, chastity, forbearance, patience, and being forgiving, and that they should show mercy to the weak and deal forcefully with the powerful. In other sentences, the Imam asks Malik al-Ashtar to select his employees from pious and God-fearing individuals and to try to choose them from righteous families with a history in Islam (pp. 63-67).
In the author's belief, the documented practical conduct of the Ahl al-Bayt (a) regarding the selection of officials and managers is another source that methodically outlines the direction for qualifying managers. For example, the Prophet (s) sent Mus'ab ibn 'Umayr to Medina for a missionary task while Mus'ab was a teenager, but the Prophet (s) chose him solely based on his merit (pp. 68-69). Another case is the appointment of 'Attab ibn Asid as the governor of Mecca by the Prophet (s) while he was young, but due to his merit and despite the presence of older and more experienced individuals, he was appointed for this important task (pp. 69-71). Another famous case is the selection of Usama, son of Zayd, as the commander of the army against the Romans, while prominent figures of the Muhajirun and Ansar were present and Usama was less than twenty years old (p. 71).
Reason and the Consensus of the Wise
The author states that based on the importance of preserving the Islamic system and the general social interest, and the need to avoid delegating positions to unworthy individuals, human reason dictates the examination of an individual's conditions and qualifications. One tries to make the best choice even in ordinary life matters. Given the importance of public interest and the Islamic system, reason supports the examination and qualification of individuals (p. 73).
Principle of Istishab
The principle of *istishab* (presumption of continuity), given its stated conditions, can be applied in the matter of qualification where, for example, an individual has held a position, their conditions were confirmed before appointment, and after the end of the term, they wish to be reappointed to the same position; the continuity of the previous conditions can be presumed. Or, in a case where a person was previously disqualified and we now doubt their qualification, we can confirm their disqualification by resorting to the presumption of absence (*istishab 'adami*) (pp. 78-79).
Principle of Bara'ah
The principle of *bara'ah* (exoneration), according to the author, is a negative principle, not a positive one. Therefore, this principle cannot prove the conditions, qualities, and characteristics of an individual for appointment—for instance, whether they are a believer, have management skills, or are committed to the principles of Islam. It can only state the non-commission of a sin or crime for which there is no certain or presumptive evidence, not prove whether the individual is righteous or not (p. 82).
Principle of Precaution
The principle of precaution (*ihtiyat*), in both its rational and religious forms, can be applied in the issue of qualification. In matters such as guardianship, sovereignty, governance, and the lives and honor of people, the presumption of validity does not apply, and precaution must be taken, because no evidence has been presented to confirm the individual's qualification. Qualification must be confirmed before approval due to the importance of delegating governmental positions. On the other hand, based on the principle of precaution (warding off potential harm, etc.), examining the qualifications of officials and officeholders is necessary and supported by reason, as it is necessary to prevent the entry of incompetent individuals into the administration of the Islamic government, which would lead to the destruction of the lofty goals of the Islamic government (pp. 90-91).
Jurisprudential Rules
The author then refers to three jurisprudential rules related to the topic of qualification: validity, presumption of absence, and expediency (pp. 91-92).
According to him, the rule of validity applies to the action of another person where there is doubt about the validity or invalidity of that person's action. Therefore, in the matter of qualification, which relates to conditions and has no connection to the individual's action, one cannot resort to the principle of validity, because qualification and eligibility are ranked before a person's action (pp. 92-94).
Regarding the rule of presumption of absence, he says that it implies the absence of qualification or right for officials who claim competence and worthiness for a position. Since the default assumption is the absence of the legal conditions or qualifications for individuals to be selected, it is necessary that their qualifications be confirmed (p. 96).
In his belief, based on the rule of expediency, the qualification of the officials of the Islamic government can be framed as preserving the government or, in other words, "preserving the core of Islam" (*hifz baydat al-islam*), and preventing the appointment of unworthy individuals, so that qualified individuals can be appointed to prevent potential harms and secure the interests of the government (p. 100).
Legal Foundations of Qualification
The most important legal foundations in the Iranian legal system for qualifying and examining the competence of holders of governmental positions, in the author's belief, are the "right of the righteous to govern society," the "right to social self-determination," and "justice-seeking" (p. 103).
The right of the righteous to govern society requires that only those who can be considered righteous become officials of the Islamic government, and the criterion for an individual's righteousness is the conditions specified in Iranian positive law. As can be inferred from Article 67 of the Constitution, which pertains to the oath of the members of parliament, the individual must be qualified to protect the sanctity of Islam and safeguard the achievements of the Islamic Revolution (p. 106). The right to social self-determination, in accordance with Islamic principles and the divine right to rule, which is noted in Article 65 of the Constitution, requires that this right be analyzed in light of the ultimate goal of the government, which is the movement towards God (p. 107). Also, based on the criterion of justice-seeking, it is necessary to qualify those who understand the meaning of justice, seek to establish fairness and equity in society, and constantly strive to achieve the goals for which the Islamic government was formed (pp. 112-113).
Governing Legal Principles in Qualification
The author states that according to the "principle of the rule of law" and what is stated in Article 62 of the Constitution, the law will determine the conditions for voters and candidates. Therefore, all actions must be within the framework of the law, and any arbitrariness and application of personal taste should be prevented (p. 114). Also, according to the "principle of being documented and reasoned," the qualification or disqualification of candidates for governmental positions must be based on law so that, if necessary, a thorough review of the complaints of disqualified candidates can be carried out. The note to Article 50 of the Parliamentary Elections Law refers to this context (pp. 116-119). According to the author, based on the "principle of the absence of conditions," in the review of qualifications, qualification must be confirmed, not the confirmation of disqualification. This is because, in the latter case, individuals whose disqualification is not proven and whose qualification is not confirmed would be considered qualified, whereas this would entail allowing unqualified individuals into governmental positions and would be contrary to Article 67 of the Constitution (p. 122).
Right, Duty, and Their Relation to Qualification
The author says that in the correlation of right and duty and its relation to the topic of qualification, whenever a right is established for an individual or individuals, others are obligated not to infringe upon their right and not to prevent them from exercising it. Therefore, the mere theoretical establishment of a right for a rights-based life is not sufficient; the government must provide the necessary arrangements for the realization of people's rights. In fact, when it is said that people have a right over the government, it means the government is obliged to fulfill that right. In this discussion, in cases where the people have delegated their right (the right to qualification) to the government through a referendum or other common political methods, the government is obligated to fulfill this duty in appointing worthy individuals to governmental positions (pp. 148-153).
The Authority for Determining and Qualifying Officials
One of the important discussions in the topic of qualifying officials is the authority for qualification. In this discussion, the author seeks to answer the questions: What is the role of the people in qualification? Is this right delegable by the people? And to what extent is the government involved in qualification? (p. 158).
According to him, the relationship between the government and the people in the matter of qualification can be conceived in three ways: 1) Qualification is solely the right of the government, and the people have no role; in fact, the government is considered the ruler and the people the ruled (p. 159); 2) Qualification is solely the right of the people, and the government has no role; in this assumption, it is the people who dictate their demands to the government, and the government is, in a way, the people's agent, who can be dismissed at any time (p. 160); and 3) Qualification is considered both the right of the people and the right of the government, and therefore the relationship between the people and the government is not merely one of ruler and ruled, but in fact, there is a kind of division of labor, where some tasks are performed by the government and some by the people. In this case, the true commander is God, and before His command, all people are equal, whether they are prophets, Imams, or the guardian jurist, or ordinary citizens (p. 161). The author himself accepts the third form.
Challenges of Qualification with General Rules
In the author's belief, one of the fundamental challenges of the topic of qualification is the conflict between the investigation and research for qualifying individuals and the prohibition of entering one's private sphere as a general rule (p. 170). According to him, privacy has various types, such as informational privacy, communicational privacy, physical privacy, spatial privacy, and personal privacy (pp. 170-174). Regarding the jurisprudential reasons for the prohibition of entering the private sphere, the author refers to verses of the Quran that specify instances of privacy (spying, backbiting, entering homes without permission) and indicate the prohibition of entering the private sphere, such as Quran 49:11 (pp. 187-190). He also refers to reason and the consensus of the wise, which consider trespassing on individuals' privacy and revealing their information and faults to be reprehensible and rule for its prohibition, and consequently, the Sharia also forbids trespassing on privacy (p. 193). Finally, regarding the legal reasons for the prohibition of entering individuals' privacy, he refers to Articles 22 and 25 of the Constitution (p. 194).
The author believes that the initial entry into individuals' privacy, in addition to being religiously forbidden, is legally prohibited, and the perpetrator deserves punishment. However, violating privacy, while acknowledging the necessity of qualifying candidates for governmental positions, will be permissible under a secondary ruling (preserving the Islamic system, etc.) and by the decree of the legislator (discovering conspiracy, espionage, etc.) (p. 175).