Elections from the Perspective of Jurisprudence (Book)
Elections from the Perspective of Jurisprudence (انتخابات از نگاه فقه), written by Ruhollah Shariati, is a book in the field of political jurisprudence. In this work, the author examines the jurisprudential foundations for the election of officials and the political system by the people. This book is organized into four sections: generalities, the jurisprudential foundations of elections, the domains of elections (referendum, election of legislators, and ruler), and issues of elections.
| Elections from the Perspective of Jurisprudence | |
|---|---|
 | |
| Book Information | |
| Author | Ruhollah Shariati |
| Subject | Political jurisprudence |
| Language | Persian |
| Pages | 392 |
| Publication Information | |
| Publisher | Islamic Sciences and Culture Academy |
- Abstract
By citing the Quran, Sunnah, intellect, and the conduct (sirah) of the Infallibles (a), Shariati examines the legitimacy of the majority vote, consultation (shura), and allegiance (bay'ah), considering elections as an instance of allegiance. He emphasizes the non-imposition of the ruler's view and the necessity of consulting with the people, and deems a referendum legitimate provided it does not contradict divine rulings. Furthermore, he prefers the election of legislators and rulers with the participation of both the public and the elites, and analyzes the qualifications of voters and candidates based on jurisprudence.
Overview and Structure of the Book
Elections from the Perspective of Jurisprudence is a book in the field of political jurisprudence that examines the jurisprudential foundations and documentary evidence for the election of officials by the people. The jurisprudential examination of the election of the country's ruler, legislators, administrators, and officials, and ultimately the form of the country's political system, are among the secondary issues of this book. The author of this work, Ruhollah Shariati, is a faculty member of the Political Jurisprudence Department of the Institute of Islamic Sciences and Thought, and Rules of Political Jurisprudence and Rights and Duties of Non-Muslims in Islamic Society are among his other works in the field of contemporary jurisprudence. The book Elections from the Perspective of Jurisprudence was published by the Islamic Sciences and Culture Academy in 2015 (1394 SH) in 392 pages.
The main discussions of the book are organized into four sections. The table of contents and the book's introduction are at the beginning, and the bibliography and indices are at the end. In the first section, the author addresses concepts such as political jurisprudence, elections, referendums, consultation, and democracy, as well as general topics like the history of elections, types of participation, and electoral systems (pp. 29-69). He considers the holding of elections permissible only for matters that do not oppose Sharia, intellect, custom ('urf), and the supreme interests of the country (p. 60). He dedicates the second section of the book to the jurisprudential foundations of elections and examines the validity of the majority vote, council (shura), and allegiance (bay'ah) (pp. 75-125). The most extensive section of the book is the third section, which studies the important domains of elections—namely referendums, the election of legislators, and the election of the ruler—in three chapters (pp. 129-295). Various issues of elections, including the qualifications of voters and candidates, are examined in the final section of the book (pp. 299-358).
In this book, after stating the topics, Shariati engages in identifying their jurisprudential evidence. In each section, he examines the positive and negative aspects of each topic by citing proofs and evidence related to each side, and ultimately proves his own viewpoint.
Jurisprudential Foundations of Elections
In the second section of the book, the important jurisprudential foundations of elections—namely the validity of the majority vote, consultation, and allegiance—are examined.
Legitimacy of the Majority Vote
To validate the majority vote, Shariati cites the Quran, Sunnah, the practical conduct (sirah 'amaliyyah) of the Prophet (s) and the Imams (a), the judgment of intellect, and secondary titles ('anawin thanawiyyah) (such as preservation of the system). He believes that Quranic verses insisting on not following the majority pertain to unseen matters (umurt ghaybiyyah) (such as the attributes and actions of God, the characteristics of the Resurrection, and divine decree and destiny) and do not encompass political and social issues (pp. 77-87).
Validity of Consultation
According to the author, elections are an updated and organized form of public consultation, which is emphasized in religious teachings, and its legitimacy is certain. Nevertheless, the author argues for its legitimacy using numerous proofs such as verses, narrations, conduct (sirah), and the practice of the rational people (bana' al-'uqala). According to the author's account, some jurists do not consider it obligatory for the ruler to act upon the consultation, but the author, who considers the probability of the consultation's outcome being correct to be higher than the ruler's individual view, deems it obligatory for the ruler to act upon the consultation (pp. 88-103).
Elections as an Instance of Allegiance (Bay'ah)
Shariati argues for the legitimacy of elections by purifying the rationale (tanqih al-manat) of the legitimacy of allegiance (which was prevalent during the time of the Infallibles) (p. 126). He considers allegiance to be a binding contract ('aqd lazim al-wafa) wherein the people pledge to follow and obey, and the ruler pledges to manage their affairs (p. 120). In the author's view, although Imam Ali (a) was chosen directly by the Prophet (s) and God for the caliphate, his governance was only established after the people pledged allegiance to him (p. 116).
Methods of Decision-Making in Important Matters
In the second section of the book, the author examines methods for decision-making in important political matters.
Non-Imposition of Individual View in Sharia
In the author's view, the principle in Sharia is the non-imposition of an individual's view, and imposing a view is only legitimate in exceptional cases and considering the conditions of society. By examining the reasons for the legitimacy or illegitimacy of imposing the ruler's view, the author has concluded that religion generally is incompatible with imposing the ruler's view (whether infallible or non-infallible); rather, it aligns with not imposing his view. This is because, in the governance of the Infallibles, various individuals were constantly consulted, and in their method, imposing views and ignoring the opinions of individuals, especially the elites of society, is not observed. He also believes that the philosophy behind many matters, such as consultation, is applying a collective view and utilizing the opinions of others in governance, and this is incompatible with imposing the ruler's view (pp. 134-139).
Referendum
According to the author, since a referendum does not contradict divine rulings and is compatible with the political structure of Islamic societies, it has been accepted by Islamic societies. He enumerates the reasons for the legitimacy of a referendum as follows: the emphasis of the Book (Quran) and Sunnah on consultation, the resemblance of a referendum to a type of legislation, the rule of the necessity of fulfilling contracts (awfu bi al-'uqud), the conduct of the Infallibles (a), the maxim of dominion (al-nasu musallatuna 'ala amwalihim), and the principle of non-guardianship over others (asl 'adam al-wilayah 'ala al-ghayr). Furthermore, even assuming the impermissibility of a referendum as a primary ruling (hukm awwali), by utilizing various secondary titles such as expediency (maslahah) and the preservation of the system, the legitimacy of a referendum can be deemed permissible, or rather, obligatory. Also, in some cases, one can utilize referendums and custom ('urf), which are sources for identifying the subject matter of rulings (pp. 140-155).
Referendum in the Form of the Political System
After the author deems a referendum legitimate, he states Islam's viewpoint regarding determining the form of the political system. For this purpose, he examines two assumptions: the "existence of a specific structure" and the "non-existence of a specific structure," by mentioning the proofs related to them. By citing the following reasons, he concludes that the second assumption is more compatible with Islam's viewpoint:
- There is no explicit textual evidence (nass) indicating that the Prophet's (s) form of government was exclusive;
- The form of government is among customary and rational matters that differ with the change of time and place;
- The form of government changed even in the early days of Islam;
- The texts and principles that somewhat guide us to the form of government are compatible with various forms of governments and do not specify a single form of government (pp. 156-170).
Indirect Elections (Delegating Elections to Elites)
One of the methods of decision-making in important matters is delegating it to elite individuals. Of course, the author has examined this decision-making method not in the third section of the book, but in the first section (generalities section). By citing the verse So ask the people of the message (fa-s'alu ahl al-dhikr), and relying on narrations, intellect, and the conduct of the rational people, the author believes that the election of government officials can be delegated to the elites of society (pp. 43-47).
Election of Legislators
After stating the benefits of legislation and mentioning various classifications for laws, Ruhollah Shariati considers the right of legislation to belong solely to God. He proceeds to mention two viewpoints of jurists regarding the need for human laws (in addition to divine legislation) and examines their reasons (pp. 171-181).
Reasons for Not Needing Human Law and the Responses to Them
According to the author, some jurists believe that with the existence of God's legislation, there is no need for human law. Their reasons are as follows:
- According to Quranic verses such as "Legislation is not but for Allah" (in al-hukmu illa lillah), legislation belongs exclusively to God (pp. 182-183). In the author's view, this reason is only correct if human laws are considered parallel (fi 'ard) to God's laws. But if they are longitudinal to (fi tul) divine laws, no problem arises (p. 198).
- According to verses such as "And not a moist or dry [thing] but that it is in a clear record" (wa la ratbin wa la yabisin illa fi kitabin mubin) and narrations from the Infallibles (a), the Sharia is complete, and the ruling for everything a human needs exists in the religion (pp. 183-184). In the author's view, religious laws pertain to Sharia matters, and in that domain, it is comprehensive and complete, but human laws are for customary laws (p. 198).
- Human legislation contradicts the Sharia (pp. 186-188). In the author's view, such a contradiction is not proven (p. 199).
Reasons for the Need for Human Law
The author, who believes in the legitimacy and necessity of legislation, mentions the following reasons in support of the legitimacy and necessity of legislation: the practice of the rational people (bana' al-'uqala), Islam's emphasis on council and consultation, the non-entry of Sharia into certain domains, planning and management toward executing divine law, preventing the disruption of the system and chaos, the necessity of applying subjects to rules, actualizing the enjoining of good and forbidding of evil (amr bi al-ma'ruf wa nahy 'an al-munkar), and cooperating in righteousness and piety (pp. 188-206).
Methods for Appointing Legislators
Although a legislator can be appointed by the ruler, and the conduct of the Prophet (s) and the Imams (a) indicates its validity, in the author's view, the election of legislators by the people yields better outcomes and benefits. These include: elevating the level of law-abidingness among the people, enhancing public satisfaction, national unity and support for the government, the society benefiting from diverse views and thoughts, and elevating the political growth of the society. Shariati has articulated the following reasons for this viewpoint:
- Verses and narrations that emphasize the importance of council and consulting with the people;
- Narrations indicating the responsibility of the general public, such as "Every one of you is a shepherd and is responsible for his flock" (kullukum ra'in wa kullukum mas'ulun 'an ra'iyyatih);
- The maxim of dominion "People have dominion over their properties" (al-nasu musallatuna 'ala amwalihim);
- The principle of non-guardianship over others;
- The maxim "Gain is accompanied by liability for loss" (man lahu al-ghunm fa-'alayhi al-ghurm);
- Expediency (maslahah) and preservation of the system (pp. 207-228).
In Shariati's view, even in the government of an Infallible, the election of a legislator by the people is preferred over their appointment by the Infallible; therefore, in the government of the Imam's deputy or the government of a just non-jurist ('adil-i ghayr-i faqih), the election of legislators by the people will also be permissible. He believes that in an oppressive government that lacks legitimacy, if the election of legislators by the people leads to a reduction in the ruler's oppression, this action is obligatory (pp. 241-243).
Election of the Ruler
After stating the methods for determining the ruler among Muslims (Shia and Sunni) and pointing to the topic of "using force in government" and "the necessity of public satisfaction in government," the author addresses the jurisprudential theories of governance during the era of Occultation (Ghaybah) (pp. 244-268).
The Method of Determining the Ruler (Based on the General Guardianship of Jurists)
To determine the ruler based on the theory of the Guardianship of the Jurist (Wilayat al-Faqih), the author presents the two theories of "appointment" (intisab) and "election" (intikhab), along with the documentation for each. Among the proofs for the appointment theory, he enumerates the Maqbula of Umar b. Hanzala, the Mashhura of Abu Khadija, the signed letter (tawqiw') of the Imam of the Time ("And as for the newly occurring circumstances, refer them to the narrators of our hadith"), and rational evidence. Furthermore, his reasons for the "election" theory include: the judgment of intellect, the maxim of dominion, respect for social contracts, delegation (istinabah), evidences for the legitimacy of council, allegiance (bay'ah), the practice of the rational people, the social addresses of the Quran, and the divine vicegerency (khilafah) of the human being (pp. 269-287).
Ruhollah Shariati has preferred the election theory over the appointment theory; because he believes that, according to the election theory, for the exercise of guardianship, there is no separation between the stage of establishing (ja'l) and determining the ruler. Also, in this viewpoint, the opinion of the people, who directly or indirectly vote for the ruler, is valued and considered to have Sharia effect. Of course, adherents of this theory also prefer that the election of the ruler be carried out by a group of experts and scholars accepted by the people, so that both the opinion of experts is observed, and propaganda has less effect on the voters. Nevertheless, in his belief, no specific method for electing a ruler is prescribed in jurisprudence, and according to the rule, one must utilize rational and customary methods chosen by rational people based on time and place (p. 293).
Issues of Elections
The final section of the book is dedicated to examining some issues related to elections. Whether voting should be secret or public, electoral campaigns, electoral districts, supervision over elections, the presence of political parties in elections, and elucidating the Sharia ruling of voting as an action of an accountable person (mukallaf) are among the secondary issues related to elections that the author examines from a jurisprudential perspective (pp. 336-356).
Qualifications of Voters
In the author's view, puberty, sanity, and capability are among the general qualifications of voters. The proofs he cites for his claim are: intellect, the practice of the rational people, the concomitance of right and duty, and the maxim "gain is accompanied by liability for loss." He subsequently examines other conditions such as age, maturity (rushd), citizenship, maleness, and Islam regarding this subject. By relying on certain proofs, he believes that women, as well as non-Muslims residing in an Islamic country, have the right to vote (pp. 300-323).
Qualifications of the Candidate
According to Shariati, the individual elected by the people, in addition to possessing the necessary qualifications of voters, must be capable, knowledgeable, and the most qualified (aslah). They must also possess the attributes mentioned in narrations for a counselor; positive attributes of a counselor such as: intellect, religiosity, giving good counsel (nasihah), and keeping secrets, and the absence of negative attributes such as miserliness, cowardice, greed, and a servile nature.
In the author's belief, regarding the condition of Islam for the candidate, one must consider the principles of relations between Muslims and non-Muslims. For example, if the election of a non-Muslim leads to their domination (sultah) over an Islamic country (such as electing them as the head of the branches of government, as a minister, or to important and sensitive posts in an Islamic country), such a matter is forbidden; because in Sharia, the domination of disbelievers over Muslims is decisively negated (pp. 324-335).