Political Fiqh: Foundations of Public Law in Islam (book)
Foundations of Public Law in Islam is the seventh volume of the ten-volume series "Political Fiqh", authored by Abbasali Amid Zanjani. In this volume, the author, across seven sections, addresses topics related to public law as a part of political fiqh, under the general system of Islamic jurisprudence. The book examines the position of public law in the Islamic legal system, theories of the state in Shia fiqh, the duties of the Guardian Jurist (*Wali al-Faqih*), the role of expediency (*maslahah*) and governmental rulings in the Islamic system, the foundations of Islamic economics, and the Islamic administrative and management system.
 | |
| Book Information | |
|---|---|
| Author | Abbasali Amid Zanjani |
| Style | Analytical |
| Language | Persian |
| Volumes | 1 |
| Pages | 761 |
| Publication Information | |
| Publisher | Amirkabir |
- Abstract
The author emphasizes the idea of creating a new classification in the science of fiqh, namely private fiqh and public fiqh, to organize his discussion, noting the lack of separation between public and private law in traditional fiqh. In addition to the fourfold evidence (Quran, Sunnah, consensus, and reason), he cites other sources such as the constitution and international treaties as sources of public law in Islam.
Amid Zanjani classifies legal rules, especially in political fiqh, into three categories: primary and fixed legal rulings and rules, secondary and variable rulings and rules, and governmental rulings. He notes that governmental rulings are a form of temporary legislation based on public interest, but there is disagreement among jurists about the extent of their scope. The author considers that words such as *ummah* (community), *imamah* (leadership), *khilafah* (caliphate), *imarah* (emirate), *ra'iyyah* (subjects), *wilayah* (guardianship), *saltanah* (sultanate), and the like, in some way, contain the concept and definition of the state in Islamic literature.
The author of the book considers the formation of an Islamic government to be an instance of engaging in *hisbah* affairs (matters of public good), which is initially entrusted to the jurists and, in their absence, to others. He sees the duty of the Guardian Jurist as the administration of the country's affairs, not merely their supervision, and believes that the rule of the jurist will not endure without relying on public opinion and acceptance.
The author believes that expediency (*maslahah*) is not a source for primary rulings in Shia fiqh but is acceptable for governmental rulings that are passed temporarily. Regarding the Islamic economic system, Amid Zanjani considers it a state-run system in which the legitimacy of economic activities, including tax collection, requires the permission of the Guardian Jurist.
Structure of the Book
- Foundations of Public Law in Islam* is the seventh volume of the ten-volume series "Political Fiqh" by Abbasali Amid Zanjani, first published in 1384 SH in 761 pages. This volume is organized into seven sections: 1. The Position of Public Law in the Islamic Legal System (3 chapters), 2. Public Law in the Domain of Individual Constitutional Rights (2 chapters), 3. Theories of the State in Juristic Thought (6 chapters), 4. *Hisbah* and *Hisbah* Affairs (5 chapters), 5. The Islamic Administrative and Management System (5 chapters), 6. Foundations of Public Finance (4 chapters), 7. Juridical-Legal Rules of Public Law (5 chapters).
The Author
Abbasali Amid Zanjani (1316-1390 SH / 1937-2011 CE) was a mujtahid, legal scholar, university professor, and political science researcher. He studied in the seminaries of Qom and Najaf under masters such as Sayyid Hossein Borujerdi, Ruhollah Khomeini, Sayyid Abu al-Qasim al-Khoei, and Sayyid Muhsin al-Hakim. The ten-volume series *Political Fiqh* is one of his famous works in political jurisprudence and has been reprinted many times. He also had experience in the political arena as a member of the Islamic Consultative Assembly and the Assembly of Experts.
Classification of Fiqh based on Public and Private Law
According to Amid Zanjani, the terms private fiqh and public fiqh do not exist in the science of fiqh, and the most common classification of jurisprudential issues has been into acts of worship, transactions, rulings, and politics. In the first section of the book (Chapter 1), the author notes that the classification of fiqh topics is not divinely prescribed or immutable, and if the boundaries and instances of public and private law are properly clarified, a new categorization called public fiqh and private fiqh can be established (pp. 23-24).
For further clarification, Amid Zanjani defines and distinguishes between public and private law (pp. 24-27) and then lists fifteen jurisprudential topics and issues that fall within the domain of public law, such as: enjoining good and forbidding evil, jihad, inviting to Islam, inviting to good, advising leaders, education and upbringing, health and treatment, religious guardianships (father, ruler, and judge), topics related to the Imamate (conditions, attributes, and duties of the Imam and the ummah), financial obligations (khums, zakat, anfal, charities, etc.), judiciary, mines, and natural resources (pp. 28-29).
He then, based on jurisprudential issues, refers to the duties of the state in the field of public law in three branches: legislative, executive, and judicial. In "Contexts and Factors for the Development of Public Law," he asserts that in the Islamic system, due to the people's belief in Islam and the political system, this very ideological nature of governance is the factor that guarantees and develops public law (pp. 29-36).
Proposed Sevenfold Classification of Fiqh
At the end of this chapter, Amid Zanjani presents his proposed sevenfold classification under the titles: general fiqh, judicial fiqh, civil fiqh, family fiqh, economic fiqh, devotional fiqh, and public law fiqh (pp. 36-39). He then addresses the "Developments of Public Law in Fiqh" and introduces a list of public law books by Sunni (ten books) and Shia (forty works) jurists. He also separately refers to the discussion of the Guardianship of the Jurist and names eight books from the modern era, from Kashif al-Ghita to Imam Khomeini (pp. 39-43).
"Authorities" of Public Law Fiqh, Not "Sources"
Amid Zanjani believes that public law is a part of Political Fiqh, and political fiqh itself is a part of Islamic fiqh. Therefore, to derive public law, one must use the general sources of fiqh, namely the fourfold evidence: the Quran, Sunnah, consensus, and reason. The author of the book explains these four jurisprudential sources in detail from a jurisprudential and legal perspective, then discusses "customary rules and rational methods" in public law, and then moves on to "other sources of public law in Islam," such as the Constitution and "contractualizing public law," such as international treaties.
At the beginning of the second chapter, Amid Zanjani insists on using the term "jurisprudential authorities" (*ma'akhidh*) for public law instead of "sources" (*manabi'*). He explains that in positive law, sources include things like custom, legal documents, and records, but in Islamic law, there is only one source, which is revelation. For this reason, jurists have also used the term "evidence" (*adillah*) instead of sources, because the fourfold evidence is proof of revelation and an indicator and guide to it, signifying that a ruling is from revelation (pp. 47-88).
Governmental Rulings: Temporary and Based on Expediency
In Amid Zanjani's belief, the Islamic legal system is built on the real interests of the individual and society, as well as on the principle of making life easy and simple for humanity. Revelation has delegated authorities to the Prophet and then the Imam in line with these two principles. Based on this, legal rules, especially in political fiqh, are divided into three categories: primary and fixed legal rulings and rules, secondary and variable rulings and rules, and governmental rulings. He notes that governmental rulings are a type of temporary legislation, but there is disagreement among jurists about the extent of their scope.
According to the author, a governmental ruling is issued based on expediency (*maslahah*) and the responsibility of leadership. He defines *maslahah* in two ways and presents the juristic opinions: 1. the interest of preserving the Islamic system, and 2. the general interest of the people. Amid Zanjani also refers to the words of Imam Khomeini regarding the limits and authorities of the Imam and the qualified jurist, who mentioned the interest of the people alongside the interest of the system.
The author then explains the "commonalities of public law in Islam": 1. sovereignty, 2. law, 3. freedom, 4. collective participation, 5. consultative decision-making, 6. accountability and the demand for accountability, 7. legal organization, 8. representation in public affairs and rights, which includes the representation of jurists on behalf of the absent Imam (pp. 89-101).
The third and final chapter of the general section is a historical report on the "evolution of public law in Islam and Iran" from the ancient Iranian era, Iran after Islam, constitutional Iran, and then the era of the Islamic Republic (pp. 103-114).
The Precedence of Duty over Right in Fiqh
In fiqh, more importance is given to duty and public duties than to right and public rights, whereas in the science of law, the focus is on right and public rights. However, in fiqh, alongside the fulfillment of a right, the exercise of that right is also considered a duty. Amid Zanjani, by recalling this point, enters the discussion of the precedence of right or duty over the other. He first examines the "source of social rights" and says that in fiqh, authenticity lies with the texts, and in them, duties are more prominent and they become the source of rights; for example, the right of ownership arises from the duty to respect the property of others. For this reason, jurists have also divided religious rulings into two types: prescriptive (*taklifi*) and declarative (*wad'i*), meaning that prescriptive rulings are the content of religious evidence and texts, and declarative rulings are derived from prescriptive rulings.
Another important point mentioned by the author is that by proving a duty, a right is also established, but the reverse is not true; if a right is established, a duty may not necessarily follow from it. Therefore, in fiqh, both duty and right arise from a religious ruling, with the difference that the primary content of the ruling is the duty, and its secondary content is the right. After explaining the relationship between right and duty, he addresses "private rights and state duties," considering private rights as second-degree public rights, and believes that the state has a duty to guarantee them, and the people have the right to demand them. According to him, according to the "general principle of responsibility," public rights are also conditional and limited and do not mean ignoring the principle of duty (pp. 117-123).
The Political System in Shia and Sunni Thought
In Amid Zanjani's view, the word "state" (*dawla*) is not used in Islamic texts, but Islamic terms like *ummah*, *imamah*, *khilafah*, *imarah*, *hukumah*, *ra'iyyah*, *wilayah*, *saltanah*, and their like, which are seen in the Quran and other Islamic texts, in some way contain the concept and definition of the state. Denying the existence of the state in Islamic thought due to the absence of this word is not a well-considered statement. Also, in addition to words equivalent to "state," in Islamic thought, we deal with political concepts (such as equality, freedom, justice, collective duties, and the duties and conditions of the ruler), each of which can prove the necessity of forming a state in Islam in political philosophy.
The author then discusses "caliphate and the imamate of the ummah" among the Shias (the appointed or elected guardianship of the jurist) and Sunnis (caliphate from the Prophet by the election of the ummah) and tries to explain the differences concerning the "basis of legitimacy" and the "required characteristics of the caliph" by relying on the evidence and texts of the Sunnis, dedicating a large portion of this discussion to examining the thoughts of Ibn Taymiyyah. In two sections, he discusses the crisis of legitimacy in obedience to the ruler and the legitimacy of the principle of the supreme caliphate.
While reporting the views of Sunni scholars on obedience or disobedience to the ruler, opposing the ruler or rebelling against him, and explaining why rebellion against the ruler is not permissible from the Sunni perspective, Amid Zanjani considers this teaching to be incomparable to *taqiyyah* (dissimulation) in Shiism and clarifies that *taqiyyah* does not grant legitimacy to an unjust ruler, whereas the lack of rebellion in Sunnism is legitimacy-granting (pp. 153-177).
Seven Foundations for State Legitimacy and Emphasis on Public Consent
The author discusses the state in Shia thought in the third and fourth chapters of the third section of the book, first presenting the "foundations of the state in Shia thought" and then the "jurisprudential theories on the sovereignty of qualified jurists." In explaining the foundations of the legitimacy of the Islamic state from both Sunni and Shia perspectives, he addresses seven foundations and political philosophies: 1. Justice, 2. Enjoining good and forbidding evil, 3. Expediency (*maslahah*) (in two ways), 4. Consultation and allegiance, 5. The state's agency on behalf of the people, 6. The limited guardianship of jurists, 7. The popular (non-jurist) state.
Amid Zanjani then turns to the two theories of appointment and election in the sovereignty of qualified jurists. At the beginning of the discussion on the theory of appointment, without referring to the source and books of the jurists he mentions, he claims: "This theory, under the title of the absolute guardianship of the jurist, was proposed at the beginning of the era of occultation by a jurist like Shaykh al-Mufid and in the era of the flourishing of fiqh in the last two centuries by jurists like Kashif al-Ghita, Naraqi, Bahr al-'Ulum, and Maraghi." Also, at the beginning of the discussion on the theory of election, he emphasizes that this view was first proposed by Imam Khomeini, who said that "the legitimacy of the absolute guardianship of jurists, even by way of text and appointment, is not sufficient for establishing a desirable and stable government. Until such a government is accompanied by public acceptance and consent and the people's votes, it can neither be formed nor, if established, be sustainable and durable" (pp. 179-198).
At the end of the third section and to complete the discussion of the Islamic state, the author, in the fifth and sixth chapters, recounts the fundamental rights of the nation (with reference to human rights and political freedoms) and the civil and social rights of the people (such as public order, environmental health, education, and social security) (pp. 199-323).
Hisbah and the Formation of Government
Amid Zanjani dedicates the fourth section of the book to *hisbah* (public good enforcement) and in the first chapter, after mentioning the history of the discussion of *hisbah*, he explains the lexical and "jurisprudential term of *hisbah*" and then the "legal term of *hisbah*." He then pursues "views on *hisbah*, the scope of *hisbah* affairs, the classification of *hisbah* affairs, the historical evolution of the *hisbah* system, the Islamic *hisbah* system and its similar system in the Byzantine Empire." In the following chapters of this section (second to fifth), "rulings and etiquettes of *hisbah*, the role of expediency in *hisbah* affairs, responsibility in *hisbah* affairs, and *hisbah* and the state" are examined (pp. 327-445).
In Amid Zanjani's belief, the formation of an Islamic government in the era of occultation is an instance of addressing *hisbah* affairs because forming a government secures the two main pillars of *hisbah*, namely preserving public interests and maintaining the social order. He also tries to show that even with the theory of the limited authority of the jurist to *hisbah* affairs, one must be committed to establishing a type of government based on those same *hisbah* affairs (p. 440).
The Duty of the Wali al-Faqih: Administration or Supervision?
In the author's belief, the administrative system is an inseparable part of the state, and the Prophet's system of governance, despite its centralized system and the presence of the Prophet himself in the government of Medina, still shows a kind of separation of powers. The executive apparatus in the prophetic era consisted of three institutions: the military institution, the legislative institution (propagating rulings), and the executive institution (the governor). In this context, he refers to the "provincial divisions in the prophetic era" and the "policy of decentralization in the prophetic era." Regarding the government of Imam Ali (a), Amid Zanjani also explains the "administrative system in the Alid era." In this regard, he refers to the "officials of Imam Ali (a)" whose correspondences are recorded in "Nahj al-Balagha" (fifteen cases) and also the hierarchy and administrative positions and titles of the Alid era.
The author then addresses topics such as the section on the Islamic administrative and management system, reviewing the administrative structure, the civil liability of the state, administrative supervision and monitoring, administrative justice, and dealing with administrative violations.
Minimal or Maximal State Intervention
The explanation of "two views in Islamic management" is one of the most important discussions in the fifth section of the book (the ninth topic of the first chapter). In this discussion, Amid Zanjani considers *asalat al-ibahah* (the principle of permissibility) and *asalat al-hadhar* (the principle of caution) as two important principles in the issue of the extent of state intervention in the affairs of the country and the people, which need to be studied and examined. Also, the two political views on the issue of the Guardianship of the Jurist (elective and appointed guardianship) also manifest themselves in the administrative system and the extent of the Islamic state's intervention: should the Islamic state supervise while the people administer the country, or should the state administer and the people obey? (pp. 449-560).
The State-Controlled Nature of the Economy in the Islamic System
In Amid Zanjani's belief, the economy is not the goal in Islamic thought, but for the preservation of the political and administrative system of the country, there is no choice but to make optimal use of the economic factor within the framework of a monotheistic and just orientation. The author reminds us that by economy, he means the state economy and the types of revenues and expenditures of the Islamic state, which are discussable in the field of public law.
In his view, the term *Bayt al-Mal* (public treasury) in Islamic political-economic culture represents the state economy and public property, and the term *Diwan al-Muhasabat* (audit bureau) represents revenues and expenditures. In "The Importance of the Financial System in Islam," he talks about the financial activities of the state of Medina, the revelation of verses on zakat, khums, and war spoils, and the establishment of the *Bayt al-Mal* (public treasury). He reviews the "history of the sources of Islamic states" at some historical junctures and looks at the public finance system before the Islamic Revolution of Iran, during the Pahlavi era, and then the Islamic Republic of Iran, especially the principles of the constitution.
Taxation and Other State Financial Resources
The topic of the subsequent chapters of this section (second to fourth) is the examination of the financial resources of the Islamic state (zakat, khums, property of unknown owner, anfal, kharaj and muqasamah, taxes and commissions, jizyah, restitution of illicit property, taxes, and public revenues), the public expenditures of the Islamic state, and the public audit bureau. For the legitimacy of taxation, which he believes is the most important part of the state's revenue sources today, Amid Zanjani suggests several ways, including: 1. Collecting taxes in exchange for the cost of collective obligations (*wajib kifai*) that are the responsibility of the people but are performed by the state. 2. Collecting taxes with the permission of the Guardian Jurist and based on the needs of society and public interests (pp. 563-640).
Acceptance of Maslahah in Governmental Rulings
In the seventh and final section of the book, the author, in five chapters, explains the jurisprudential rules of public law. In the discussion of "public benefits and national interests," he addresses the rule of expediency (*maslahah*) in fiqh and public law. He proposes two meanings for the rule of expediency in foreign policy and international affairs: 1. observing public interests, and 2. the legitimacy of expedient actions despite their conflict with the primary rulings of Islam. Amid Zanjani clarifies that although the rule of expediency is not a source of primary rulings in Shia fiqh, its application in the first sense is certain. However, its application in the second sense is based on the "juristic theory of governmental rulings," which many jurists have accepted in the implementation of the representative imamate during the time of occultation.
A summary list of the jurisprudential topics in the last section of the book is as follows:
- General Rules: shared duty and equality before the law, public culture, exemption from harmful duties, the nature of arduous responsibilities, the excusability of one ignorant of the ruling.
- Rules of Public Commons: public right in unowned lands, mines, and waters.
- Permissive Rules: the rule of the feasible (*al-maysur la yasqut bi-l-ma'sur*), the principle of validity in one's own and others' actions, rules for lifting obligation (the principle of permissibility, the principle of exoneration, the ability to perform the duty, the negation of coercion).
- Rules for Conflict Resolution: arbitration (in private, public, and international law), drawing lots.
- Rules of International Relations: negation of domination and submission, public benefits and public interests (the rule of expediency), the principle of peace not war, national and public security (pp. 641-751).