Alhassanain(p) Network for Heritage and Islamic Thought

The Church’s Sovereignty

Question No. 9

What is the difference between religious State in church’s view in Mediaeval Ages and in Islamic Republic of Iran and Shiite thought in the modern age?

There are major differences between “Theocracy” - called erroneously the church’s sovereignty - and Islamic government or Islamic Republic. To clarify this point, the following points are mentioned:

First: In the prevailing Christian thought, religion is essentially separated from government and politics, because:

a. Christianity lacks a religious law and coherent and comprehensive instructions on human’s political and social life, and the Christian teachings on social relations go no more than some moral instructions.

b. Some of the Bible’s teachings throughout history have propagandized the idea of separation of religion and politics. It is stated in the Bible that Jesus Christ said to Pilatus: “My kingdom is not of this world…”1 He also said to Herodians: “Give Caesar's property back to Caesar; give God what belongs to God.”2

Accordingly, the seed of the secularist idea of separation of religion and politics can be said to have its roots in the popular Christian thought. By Christianity, of course, we mean the Church religion, not the true teachings of the prophet Jesus (PBUH). The Church thus has essentially no claims - as it did not in the past - with regard to government and administration of social affairs on the basis of revelation and religious law. The Church’s authority and jurisdiction in some of the social affairs (such as education, judgment, and the like) does neither mean church’s sovereignty in all political and social elements, nor religious interference in such affairs. Government has always been in the hands of the kings. Here, the king’s sovereignty was called the God’s sovereignty over people (“Theocracy”), since they believed that the king obtains his legitimacy from God and is held accountable just to Him.

Therefore, God’s sovereignty over people (theocracy) in western thought has never meant the sovereignty of religion and divine laws, while the Islamic government is a completely religious government whose origin, goals, laws and the qualifications of its rulers and agents as well as the social relations therein are deeply rooted in religion. Here, religion is the founder of a special civilization and society, unlike Christian society which was the inheritor of the Roman civilization, having no choice other than accepting that civilization and accommodating itself to it.3

Second: In the mediaeval theocracy, the dominant motto was: “the ruler is accountable only to God, not to people”. This God has neither assigned any requirements for the king nor issued any agenda for his government. James I, the king of the Britain - one of the theorists of this idea - has been quoted to say that the kings are the aspirating images of God on the earth. Just as it is profane and atheistic to argue what God can do and what He should not do, it is also profane and atheistic for the subjects to argue what the king can say or do and what he can not do. Why? For not only the kings are the vicegerents of God on the earth and sit on the God’s throne, but also they have even been called gods by God Himself”.4

Such a mentality would cause the “power” not to be controlled by religious institutions nor by social and civil ones. Consequently, it would lead to the corruption of the government and abuse of power.

As Luther points out, “no Christian can oppose a ruler - whether good or bad - rather he should submit to any unjust ruler. Anyone who resists, will be cursed”.5 Altogether, the principles governing this doctrine are as follows:

1. The monarchy has been established by God, and the monarch gets his sovereignty from God;

2. Monarchy is hereditary and this ancestral right is bequeathed to the son by his father;

3. The monarch is only accountable to God, not to his own subjects;

4. Resisting the monarch and his ordinances is considered to be a sin.6

In Islam, however, the situation is quite different. In Islamic government, the ruler is accountable to God and the society as well. Besides, the Holy Quran does not regard criticizing the corrupt powers as a cause for heresy; rather, it regards this as a religious obligation and says: “Do not obey the commands of the unjust leader, who spreads corruption in the earth and does not reform [the people’s affairs]”.7 The relation of State-nation in Islam is based on mutual rights; but in western theocracy, the king has the “right” over the people, and people have “duties” before the king.

Third: In the period of the mediaeval feudalism, the Church was one of the most important feudalist centers and owned many estates.8 Secularity and luxury had dominated the Church and living in palaces actually culminated in abolishment of the spiritual teachings of the church. This grave phenomenon led the church to accompany those who owned wealth and power, justify the corrupt governments, distancing itself from “justice and fighting oppression” - which is the dominant spirit of divine religions.

In Islamic society, one of the most important qualifications of the religious and state leaders is their liberality and freedom from worldly desires. The Infallible religious leaders’ way of life - such as Imam Ali (as) - is one of the most prominent examples of this quality throughout history. Similarly, Imam Khomeini’s simple and unworldly way of life, while he was at the apogee of the power, is also one salient example of this.

Ernest Cardinale, the Christian priest and the minister of education in revolutionary government of Nicaragua (Sandenists) writes [in his memories]:

After the Nicaragua’s revolution, we were severely under economic siege, and sugar cane - the most important income source for our country - was not bought from us. We were in a very difficult and vague situation. In a journey to Iran, I went to Iranian leader. I passed through circuitous lanes of Jamaran. The leader’s house was in quite simplicity and austerity. The person who had shaken the east and the west was an old man with simple clothes in a humble room. He simply said: “we are beside the combatants against oppressors”. This was a morale support to which nothing is comparable.

Continuing my journey, I went to Pope’s abode in Vatican. That was a galleried palace and magnificent abode, with Pope having expensive and dressy clothes who said with a scathing and bitter tone: “If you want to have the Church’s support, you mustn’t have anything to do with politics, and mustn’t struggle with US”.

I replied: “You must be my leader, but you are not! My leader is Imam Khomeini who lives in quite simplicity and really follows Jesus Christ; he is the enemy of US. If Jesus was here, he would behave like Imam Khomeini”.9

Islam and the State

What was stated shows that there is essentially nothing in Christianity called “theocratical state”, and the western and Christian “theocracy” never means “theocratical state”; in Islam, however, the case is quite different, because:

a. “Religion” and “politics” are deeply and closely linked to one another;

b. Islam has special agenda in all domains related to the State. The following are the most important ones:

1. Defining the ruler’s qualifications;

2. Regulating the domestic and foreign policy;

3. Defining the mutual rights and obligations of the society and the State;

4. Regulating the mechanism of power control and preventing corruption;

5. Enforcing and increasing public participation;

6. Stating the basis for [the State’s] legitimacy;

7. Expressing the ways of creating, preserving and exercising the power.10

Notes

1. Gospel of John 19:36.

2. Gospel of Luke 20:25.

3. For further information, see Sayyid Ahmad Rahnamaie, Gharb shinasi, Imam Khomeini Educational and Research Institute, 1st ed. 1379; H.A.R. Gibb, Religion, Politics and Islam, tr. Mahdi Qayeni.

4. Muhammad Ismail Khodadadi, Mabani ilm-e siyasat, p.54, Qom: Yaqut publication, 1st ed. 1380.

5. Ali Abdul-razzaq, al-islam va usul al-hukm, p.103 quoted from Muhammad Soroush, Din va dolat dar andishiy-e Islami, p.139, The Office for Islamic Propagation of Qom Seminary, 1st ed., 1378.

6. See: Abd al-Rahman Alim, Bunya hay-e ilm-e siyasat, p.168, Tehran, Ney Publications, 2nd ed. 1375.

7. The Qur’an, Shu’ara (26), 151-2.

8. Safar b. Abd al-Rahman al-havali, al-Ilmaniya; Will Durant, The Story of Civilization, iv, The Age of Faith, ch. 27; Dr. Ali Reza Rahimi Boroujerdi, Seyr-e tahavul-e tafakkur-e jadid dar urupa.

9. Payam-e zan Periodical, 5th year, no. 1 (Farvardin 75).

10. For further information, see Muhammad Hassan Qadrdan Qaramaleki, Secularism dar masihiyat va Islam; Falsafay-e siyasat, Imam Khomeini Educational and Research Institute; Imam Khomeini, Wilayat-e Faqih, Institution for Compilation and Publication of Imam Khomeini’s works.

The Muslim Scholar’s Authority (Wilayat-e Faqih)

Question No. 10

Is Islamic State possible just through the sovereignty of a grand Muslim scholar (Faqih) or the clerics?

Islamic State is principally exercised through leadership by the Impeccable; the starting point for this government has been the great Prophet’s “Imamate and Leadership” and then that of Imams from the Prophet’s Household. In the Occultation period, the Authoritative Muslim scholar (“Waliy-e Faqih”), i.e. the person with all necessary qualifications for issuing legal decrees (fatwa or the religious decrees pronounced by a Muslim scholar) and the leadership of the society, is appointed as the leader of the Islamic community by Impeccable Imams, and when he enjoys necessary qualifications, it is incumbent upon him to take on the “leadership” of the community as the vicegerent of Impeccable Imams.

Therefore, in the Occultation period, Islamic State is nonsense without “The Muslim scholar’s Authority”. The philosophy of this principle is clarified by exploring the features of the Islamic State and the necessary qualifications of the rulers in Islam. In other words, all affairs in the Islamic State are to be regulated based on the divine laws and decrees. The presence of a knowledgeable and competent leader, capable of discerning divine decrees, accommodating them with the needs of the time, and committing himself to the religious norms, is thus self-evident. Therefore, it is stated in a tradition by Imam Ali (as): “Among people, one who is more potent and more knowledgeable about divine decrees is more qualified for leadership”1

Note

1. “inna ahaqqa al-nas bi haza al-amr aqvahum a’layhi va alamuhum bi amr Allah fih”, Nahj al-Balagha. Sermon no.173. For further information, see Muhammad Hadi ma’rifat, Wilayat-e Faqihi, p.165.

The evidence for Muslim Scholar’s Authority

Question No. 11

What evidences are there for Muslim scholar’s Authority? Was this idea posed also in the past?

The idea of “Muslim scholar’s Authority” - whether theoretically or practically - has the same long history as shi’ism. Malik Ashtar’s appointment to governorship of Egypt by Imam Ali (as) is a salient example of this. In Shiite jurisprudence, prominent Muslim scholars have posed this idea in different ways. Among these brilliant figures in Shiite jurisprudence are Sheikh Mufid, Muhaqqiq Karaki, Allama Naraqi, Sahib Jawahir (the author of Jawahir al-Kalam); among the contemporary figures, Imam Khomeini was the greatest revival of this idea both in theory and in practice.

Imam Khomeni believed that the idea of “Wilayat-e Faqih” is so axiomatic and self-evident that correct understanding of which will immediately lead to affirming it. Sorrily, because of a centuries-long gap between clerics and politics, due to the dominance of usurping rulers and propagandas against religion by enemies, we need now to present arguments in favor of this idea. Nevertheless, religious scholars have always argued for it, fortifying its bases; Naraqi, for instance, presented nineteen transmitted evidences for it in his ‘Awa’id al-ayyam. Altogether, the evidences which may be adduced for Wilayat-e Faqih are divided into three categories:

First. The merely rational evidences: the evidences therein all minor and major premises are rational;

Second. The merely transmitted evidences: the evidences all inferred from Islamic texts, i.e. Quran and the Sunna.

Third. The combined evidences: a combination of rational and transmitted evidences.

Each of these categories has numerous statements and documents of its own. Here, some of the combined evidences are mentioned:

1. The nature of Islam. Islam is a comprehensive religion encompassing all dimensions of human life - including personal, social, worldly and otherworldly affairs.1

2. The eternality of Islam. Islam is an eternal religion, whose decrees remain in force up to the Judgment Day; “…halalu Muhammad halaun ila yawmi-l-qiyama wa…”2

3. The necessity of Islamic State. The enforcement of political, social and legal rules of Islam is impossible without establishing an Islamic State.

4. The necessity of continuation of Islamic State. The eternality of religious decrees and the need for an Islamic political system for enforcing them results in the necessity of its existence forever.

5. The nature of Islamic State. Islamic State is, by nature, a government wherein religious laws and norms are the criteria for action.

6. The requirements for the ruler. In view of the legal nature of the Islamic State, the ruler therein must necessarily enjoy three elements of [jurisprudential] knowledge (Fiqahat), justice (Idalat), and competence (Kifayat). This is not only inferred from the nature of Islamic State, but also has been stressed in many religious texts.

7. The principle of non-negligence of the Legislator (Qa’idi-ye Lutf meaning “the rule of [divine] grace”). It is impossible for the Devine Legislator to be indifferent toward an essential and most important issue of the qualified leadership and government of the Islamic society, leaving the destiny of the Muslim community indeterminate.

8. Result. God has necessarily chosen the “just Muslim scholar” - competent of and qualified for leadership - as the leader of the community.

Notes

1. For further information, see Abdullah Nasri, Intizar-e basher az din; Ali Rabbani Golpayigani, Jami’iyyat va kamal-e din.

2. Usul-e Kafi, 1, p.58.

The Absolute Authority of the Muslim scholar

Question No. 12

What does the “absolute authority of the Muslim scholar” (“Wilayat-e Mutlaqi-ye Faqih) mean and how does it differ from the Muslim scholar’s Authority? How is the absolute authority of the Muslim scholar justified? Does it not culminate in autocracy and dictatorship?

“The Muslim scholar’s Authority” is a general terminology dividable into “absolute” and “conditioned”. Thus, “Wilayat-e Mutlaqi-ye Faqih” is conceptually one of the subcategories of “Wilayat-e Faqih”. Of course, what is nowadays meant by “Wilayat-e Faqih” is the very notion of “the absolute authority of the Muslim scholar”; the former not differing from the latter. The philosophy of this is clarified by explaining its meaning. Wilayat-e Mutlaqi-ye Faqih is used in two senses in Shiite jurisprudence:

1. Wilayat-e Faqih is not confined to the authority over judgment, the legally incompetent persons, etc. Rather it includes political and social leadership as well.

2. The jurisdiction of the “Waliy-e Amr” (the Authoritative Guardian) is not restricted to the enforcement of the primary and secondary decrees; in other words, his duty is the leadership of the society in a way that the common good of the society is well realized in the light of divine guidance so that the variety of society’s needs are fulfilled in different conditions, and the society is not prevented from growth and prosperity.

So, in case of special conditions wherein the common good and the needs of the society are in conflict with one of the primary decrees, the Authoritative Muslim scholar should weigh them against one another. If the issue in conflict with the primary decree is of greater benefit for the society, he can declare a temporary recess for that primary decree, giving priority to the issue in hand.

Surely, the absolute authority is itself conditioned by some restrictions, and is not absolute from all aspects. These restrictions are as follows:

1. He must be the enforcer of divine decrees and has no right to act arbitrarily. This is the main philosophy of the Muslim scholar’s Authority.

2. He must consider the expediency of the community.

3. He can declare a temporary recess for the primary decrees just when they are in conflict with a more important issue; he can not do this arbitrarily or for personal expediency or an issue lower in rank than the primary decrees.

Now if we look realistically, we will find that the “absolute authority of Muslim scholar” - in the aforementioned sense - is one of the most important solutions predicted by Islam as a way out of dead-ends in case of emergence of conflicts in social interests, without which the government would face many problems. The scholar Murteza Mutahhari held these prerogatives to be a means of empowering the Islamic society, knowing this as one of the mysteries of eternality of Islam.1 On the other hand, that much jurisdiction is available in any government and even the rulers in other states enjoy much more prerogatives than the Authoritative Muslim scholar.2

Considering what has been stated so far, it is quite clear that “being absolute” in the sense mentioned has nothing to do with “dictatorship and autocracy”. What has caused ambiguity here is the literal similarity between the “absolute” authority of Muslim scholar and “absolutist” governments wherein the ruler is quite wayward. The term “absolute” in the above-mentioned sense is basically different. Accordingly, Imam Khomeini has insisted that “Wilayat-e Faqih is opposed to dictatorship”.3

Notes

1. For further information, see Murteza Mutahhri, Khatm-e Nubuwwat, p.64-5, Qom, Sadra Pulications, 9th ed. 1374.

2. For further information, see Hussein Javan Araste, Mabaniiy-e hukumat-e dinii, p.35-8.

3. Sahifiy-e nur, 10, 306.

The role of the Muslim scholars

Question No. 13

How far is the scope of the Muslim scholars’ function in Islamic State? In case of conflicts between Muslim scholars’ views with that of the rulers, which one has priority over the other one?

A) The Muslim scholars play the prime role in some parts of the government - which are the places for accommodating the political and social behaviors of the state with religious standards. Besides, the leadership of the Islamic government in the Occultation period is the responsibility of a just, qualified and knowledgeable Muslim scholar who is competent of social management in the macro-level.

B) In case of conflict between the Muslim scholars’ view and that of the rulers, some points should be taken into consideration:

1. Who are meant by the rulers?

2. What is the subject of the conflict?

If by “rulers” we mean all those involved in the government, then we cannot give all of these views priority over the Muslim scholar’s view1 , especially if all Muslim scholars are unanimous in holding those views to be against divine law. But if it is something in the personal jurisdiction of that agent and it is not held as a view against law by all Muslim scholars, then the opposing Muslim scholar’s view is not necessarily preferred.

3. If by “rulers” we mean the “Authoritative Muslim scholar”, his verdict is certainly prior to that of all other Muslim scholars. All Muslim scholars are unanimous in holding that opposing the “Authoritative Muslim scholar” in governmental issues is not permissible.

Of course, it must be noted that the priority of Waliy-e Amr’s view is in effect just in governmental verdicts. As for other issues, any Muslim scholar acts according to his own inference, and his imitators (“muqallids”) follow his expert opinion (“fatwa”).

4. In some cases, the Muslim scholars’ views are legally valid; such as cases where the Guardian Council2 should verify the legitimacy of something. In this case, if the Council - within the realm of its legal duties - declares something as illegitimate, its view must be accepted; unless the Expediency Discernment Council of the System verifies it, in which case it would be preponderant according to the authoritative rule.3

Notes

1. Here we mean the jurist without any legal and formal position in the Islamic State.

2. The council within IRI government, consisting of 6 Muslim scholars and 6 jurists, whose responsibility - inter alia - is to investigate the conformity of any enacted law to the Islamic principles.

3. For further information, see Muhammad Hadi Ma’rifat, Jami’iy-e madani, p.163; Muhammad Hussein Mahuri, Marja’iyyat va rahbari (the article on Islamic government), 5th year, issue no. 2; Kazim Qazizade, andishihay-e fiqhi va siyasi-e Imam Khomeini, p.222.

Governmental prerogatives

Question No. 14

What is the difference between the divine rulers’ prerogatives in Islamic State and those of the Prophet and Infallible Imams?

Considering governmental prerogatives, there is no difference between the Prophet, Imams, and the Authoritative Muslim scholar; for by the governmental prerogatives, we mean the essential social issues without which the government would not enjoy the necessary power to further its goal, i.e. providing the prosperity and the common good of the society. By “absolute authority”, we mean no more than this. Of course, the Prophet and Imams had other states and prerogatives as well, reserved for them. These, however, had nothing to do with governmental issues. The Prophet, for instance, had the right to interfere in the personal affairs of the individuals; but the Authoritative Muslim scholar has no such a right, for this is an issue outside the scope of social and governmental issues.

The governmental prerogatives of the Impeccable

Imam Khomeini says on this subject:

These are wrong illusions to think the Prophet’s governmental prerogatives were more than Amir al-Muminin, or whether the latter’s prerogatives are more than a Muslim scholar. Of course, the Holy Prophet’s virtues and eminences are more than the whole universe, as is Amir al-Muminin’s virtues after the Prophet; but having more spiritual eminences does not mean to have more governmental prerogatives. The same authority and prerogatives enjoyed by the Prophet and other Imams in summoning and mobilizing the army, appointing the governors, collecting taxes and expending it for Muslims’ common good, have been accorded to the Authoritative Muslim scholar by God. Nonetheless, no specific person is determined. The general title of a “just religious scholar” has been stated.1

In explaining the abovementioned issue, Imam Khomeini stresses the difference between “the genitive positions” and “the trusted positions”. “Wilayat”, as far as it means leadership and governance, is a trusted position conferred by the Legislator to the qualified persons. Here, there is no difference between the Prophet, Imams and the Authoritative Muslim scholar. The difference is in the realm of genitive authority and the true spiritual positions. Thus, Imam Khomeini says:

For Imam, there is spiritual positions as well, separated from governmental duties; that is the status of divine vicegerency sometimes referred to by Imams themselves; this is a genitive vicegerency thereby all worldly elements are humble to the “Authoritative Guardian”.

Elsewhere, he says:

[The Muslim scholar’s Authority] is of trusted logical affairs and there is no reality for it except nomination…. In these affairs, it is not logical to think of a difference between the Prophet and Imams and the Muslim scholar.2

Notes

1. Imam Khomeini, Wilayat-e Faqih, p.40, 7th ed. 1377.

2. Imam Khomeini, Wilayat-e Faqih, p.41.

Legislation

Question No. 15: Jurisprudence and Legislation

Is jurisprudence enough for legislation in Islamic State? Or does it need the results of empirical and political sciences and other experiences of human societies?

The sufficiency of jurisprudence in legislation never means that we do not require the results obtained from empirical and political sciences. Thus, in many cases we may consider various findings and experiences and pick out the most appropriate one, which is consistent with the jurisprudential norms. Jurisprudence is, therefore, sufficient on one hand; for the main function of jurisprudence is setting norms and it has enough resources in this realm. On the other hand, setting norms by jurisprudence is taken place on external subjects and, as we will see, recognizing existing subjects, creating new subjects, transforming subjects, and finding new ways in applying jurisprudential norms are all done through human sciences and experiences.1

Question No. 16: Praxis and Legislation

What is the role of praxis, culture, and customs in legislation in Islamic State?

To know the role of “praxis” in Islamic jurisprudence and law and in legislation of Islamic State, we need to have a definition of “praxis” and its various types, the criterion for its validity, its limits and conditions.

Definition of praxis

Different definitions have been presented for “praxis” (“Urf”). One of them is as follows: “Praxis is what people have conventionalized it and behaved according to it; whether it is speech or action, doing something or refraining from doing it, and it is also called “habit” (‘adat’)”.2

There are, however, some differences between “habit” and “praxis”;3 it would be getting off the subject to discuss them here. The following parameters and elements have basic roles in emergence of “praxis”:

1. certainty of the practice (including speech, action, doing and refraining);

2. repetition of the practice;

3. generality;

4. intentionality, and not being innate.

Types of praxis

“Praxis” is of various types, including general and particular praxis; sound and unsound praxis; the praxis based on needs and free from needs; imperative praxis; literal praxis and practical praxis, and so on. Elaborating investigation of all these types is not within the scope of this book, and the reader should refer to the related sources.4

The status of “praxis” in the Islamic jurisprudence and law

The sources for finding out and inferring religious decrees and laws in Islam are divided into two types:

1. Primary sources: By primary sources, it is meant the sources which are either intrinsically valid such as “reason”, or the Legislator has directly made them valid such as “the Book” (i.e Quran) and “Sunna” (i.e. the Prophet’s sayings and actions, or those of his Companions).

2. Secondary sources: These are the sources whose validity is consequential, relying on one of the primary sources; such as Ijma’ (unanimity of the Muslim scholars), Shuhrat (relative agreement), the Muslims’ way of life, the intellectuals’ practice (praxis). On the authority of praxis or the criterion for its validity, all Muslim scholars agree that it is not valid on its own; rather, its validity is dependant on something else. As to the basis of this validity, there are again two different views:

First. Some believe that praxis is dependant on Sunna; in that case, what is authentic is the Legislator’s view. Therefore, praxis is “valid” when it is endorsed by the Legislator. As to the general praxis - which has been beheld by the Legislator - His silence and lack of opposition is enough. Praxis or the intellectuals’ practice is thus valid and adducible only if it is not opposed - directly or indirectly - by the Legislator.5

Second. Some believe that praxis is dependant on reason. Thus, based on the principle of concomitance between the precepts of “reason” and those of “divine law”, praxis enjoys validity and authority as well.

Now we are not seeking to judge on the values of the two abovementioned concepts or to state the differences between them. Besides, we cannot enumerate - based on any of the two aforementioned approaches - all the conditions of the validity of praxis here. The common points of these two views are as follows:

1. Praxis or the intellectuals’ practice altogether enjoys validity and authority;

2. The validity of praxis is not intrinsic; rather it depends on the other sources. Thus, the rules and scope of its validity and importance is subject to its primary source;

3. If some praxis is opposed to the decrees of reason or divine law, it would be quite invalid, and cannot be adduced.

Therefore, in legislation of the Islamic society we may adduce the praxis; this, however, is under some rules and limitations discussed in detailed jurisprudential and legal sources. Some of the cases where we can apply praxis as a criterion follow:

First. Denotations of words, phrases and conceptions. In other words, to find out the notions intended by the Legislator, the words and statements containing legal and jurisprudential decrees are the main source for understanding the praxis.

Some principles and rules in the religious language have been resulted from this reality, called literal principles and rules. The most important ones are Isalat al-zuhur (the principle of appearance), Isalat al-umum (the principle of generality), Isalat al-itlaq (the principle of application), Isalat al-haqiqa (the principle of truth).

Second. In judicial laws and procedures, praxis is used as an adducible source and it is - along with the principle of absence - one of the methods for distinguishing between complainant and denier.6

Third. As for the provisions of contracts, praxis is used as an adducible legal source. The Muslim scholars hold that the provisions stipulated usually in contracts are valid as the basic provisions of the contracts.

Fourth. Recognizing the instances of the secondary topics (such as necessity, the degree of importance, loss, impediment, etc.) provides a wide chance for the role of praxis in legislation.

Fifth. Some of the jurisprudential decrees are based on praxis. The ratified decrees of Islam - including many legal, social and economic relations - form a wide arena of acceptance and ratification of praxis in jurisprudence and legislation of the Islamic society; for instance, the validity of the mutual granting contract, unauthorized contract, a passerby’s use of the perishable fruits under the trees without the consent of the owner, and so on.

Sixth. Praxis is considered as the source for interpreting the instances of the decrees, and in some cases, appurtenances and the subject of the decree and its elements and requirements. The professor Amid Zanjani writes:

“Praxis affects thus the decree itself indirectly through the interpretation it provides for the subject or appurtenance of the precept, and sometimes it changes the decrees; such as the impermissibility of the assimilation to infidels which was true some day by putting on special western clothes. But since those clothes are no longer specific to westerners, becoming popular common clothes in according to praxis, the related decree is no longer true in that case”.

Such an influence does not imply any change in the decree, but it denotes a change in the subject or the instance, whose source is the praxis.

Seventh. In the level of international relations and laws, customs and praxes formed gradually in human societies and felt to be necessary - if there are no religious prohibitions for them - are valid.

Eighth. In all political and governmental issues, praxis is valid as a legal source. Of course, as we said before, conventional validity is under some conditions. These conditions are divided into two groups:

1. Thematic condition; that is the conditions thereby the praxis is proved. Here, some believe in two essential conditions: “continuous repetition” and “being obligatory”.7

2. Perceptive condition; that is lack of any prohibitions or oppositions by the Legislator. These two conditions are agreed upon by all Muslim scholars. Some scholars have stated, according to their own personal views, some other conditions for validity of praxis, which cannot be dealt with here.

Secular Praxis

Another point which is worth mentioning here is the existence of two views on “praxis”: one is “religious praxis” and the other is “secular or laic praxis”. In the former, the “praxis” is considered along with religion and used as one of the sources related to religious law. What was stated before is generally related to this kind of “praxis”.

In the latter view, “praxis” is primarily considered independently; that is the major questions are the followings:

1. Can we use “praxis” as an independent source for legislation along with the Book and Sunna?

2. Here, by “praxis” the merely mean rational aspect of it is not meant; in other words, we do not intend to say since intellectuals are the individuals who enjoy reason, intelligence and insight, they should be used as a source for legislation. Rather, as said before, intellectuals enjoy two aspects; one is the rational-cognitive aspect, and the other is the aspect of feelings and desires. Now the following question is raised: “Can we consider the desires and wishes pertaining to the ‘praxis’ in the process of legislation?” In other words, if in some cases the “praxis” wishes something according to the wishes of the carnal soul, can it be legally validated? In view of the two points mentioned here, the question can be paraphrased as “Can we consider the people’s desires as an independent source for legislation in Islamic State along with the Book and Sunna?”

To answer this question, it should be noted that the ritual decrees of religion can be divided into five groups: Obligatory (Vajib), Recommended (Mustahab), Permitted (Mubah), Disapproved (Makruh), and Prohibited (Haram).

A. The obligatory and the prohibited things are the essential religious decrees whose violation is regarded as sin. Imam Ali (as) says: “No creature deserves obedience when God is to be disobeyed”8 ; whether that creature is a sovereign or it is a public wish. So, nobody has the right to change these affairs arbitrarily and act against them or to want someone else to act against them. Accordingly, the mere public desire - without the existence of a secondary emergency case or a more important social interest - cannot be the source of legislation against essential religious decrees; rather, the public interference in such affairs is contrary to the essential philosophy of Islamic State and leads to its secularization, because the Islamic State is a system based on divine laws and the divine laws, in turn, are based on real expediencies of human society, not merely on whims and desires. If the public wish is to be considered along with divine laws or precede them, there are no difference between Islamic State and the laic or non-religious ones.

B. The recommended, permitted and disapproved things are in the scope of unessential decrees. In this sphere, the Legislator has authorized the believers to decide according to their own will, choosing a favorite item among various options available. The difference is that for “recommended” things it is preferable to do them, while for “disapproved” things it is preferable to avoid them. As for the “permitted” things, the Legislator has preferred none of them. Thus, preferring each of them is accredited to the individuals. Here, the individual’s desires and favorites can be effective in decision-makings in major social issues and be used as a source for legislation.

Notes

1. For further information, see Ahmad Va’izi, Hukumat-e dini, p.91-101; also Mahdi Hadavi Tehrani, wilayat va diyanat, p.46-7; idem, Bavarha va porseshha, p.103-11; ibid, questions no. 22-24.

2. Khalil Reza Mansouri, dirasat al-mozu’iyya hawl nazariyyat al-urf va dawriha fi amaliyyat al-istinbat, p.51.

3. Ibid, p.52-4; Abul Hassan Muhammadi, mabani istinbat-e huquq-e islami ya usul-e fiqh, p.251.

4. For further information, see Sayyid Ali Jabbar Golbaghi Masule, Dar amadi bar urf.

5. In this regard, some provisions have been stated and there are disagreements on some qualities whose elaborate investigation is impossible here.

6. For further information, see Abbas Ali Amid Zanjani, Fiqh-e siyasi-e Islam, 2, p.219; also Sharh al-lum’at al-damishqiyya, 5, p.376.

7. ibid, p.223.

8. Nahj al-Balagha, Wisdom no. 165.

Jurisprudential and Scientific Management

Question No. 17

What is the role of management in Islamic State? What is the role of jurisprudential and scientific managements in Islamic State? Which one plays a greater role?

Needles to say, no government and system can be originated without management. Management plays an essential and very crucial role in any government. Most importantly, all managers and planners in various spheres - while using the best and the most efficient methods - must always protect religious values and apply religious norms along with scientific innovations.

To clarify this point, it should be noted that every society has its own ideals, goals and values. These ideals and values are not defined in the sphere of science; they are beyond the scope of science. On the other hand, science can teach men the methods of achieving goals and ideals. So, none of the following questions may be answered by science: “what ideals should be picked out?” “Should we consider human felicity in this world and in the hereafter as our ideal, or just in this world?” “Should we set as our goal the man’s perfection and uplift, or his pleasures and material enjoyment?” “Should we seek to establish justice in the society or just individual freedom?” None of these questions are scientific ones; however, the solution in each case can be learnt through human knowledge.

On the other hand, if we choose “the good of the two worlds” and set human’s “perfection and elevation” as our goal, it is quite natural that we need meta-scientific sources - such as revelational knowledge - to achieve them and more values to regulate relations in this and the other world. Nevertheless, science also shows us some methods in this regard; but choosing the methods offered by science should be consistent with the values and principles accepted in religion. Both religious and secular governments, thus, receive their ideals from outside the realm of science, and both can benefit from human knowledge in selecting the methods; however, the selection of methods would be consistent with the ideals and goals of the “value system”.

Altogether, we can conclude that there is no contradiction between scientific and religious management; rather, the contradiction is found between the secular and religious systems of management. The reason for this contradiction is that secular management accepts no superhuman source, but religious management relies on revelation and divine instructions.1

Note

1. For further information, see Hamid Reza Shakerin, Secularism (Discussion on jurisprudential and scientific managements).

The Role of Achievement & Science

Question No. 18

What is the role of human achievements, scientific and social laws in Islamic State?

Human’s scientific achievements are of different types:

First. Recognizing the subject: the subjects of religious laws and decrees are of various types: some are simple and clear and others are complicated and need accurate expertise. Human sciences are highly efficient in recognizing the subjects of such decrees. On the other hand, “recognizing the subjects” is an essential stage in recognizing the instances of secondary and governmental decrees, and human sciences are highly needed in this respect.

Second. Converting the subject: human sciences sometimes convert the subject of a religious decree, and thereby change the decreee itself. Human’s access to the science of “blood transfusion” causes the blood to come out of the classification of ritually impure things which lack any permissible benefits, falling into the category of the items with permissible benefits. With this change, a new item for economic exchanges is generated and its exchange is made legal.

Third. Creating the subject: the development of human knowledge always creates new subjects for Islamic jurisprudence. Human ability in artificial conception, for instance, creates a new subject in the system of family law, calling for inferring and enacting related laws.

Fourth. Recognizing the method: many of the social laws and decrees of religion are executable in different ways. Human knowledge is much beneficial for discovering better methods which are consistent with needs and demands of the time. The role of the human knowledge in legislation is, thus, one of the appropriate methods in this regard.

Islam and Economics

Question No. 19

How much is the role of economics and new economic relations and laws acceptable in Islamic State? Are economic laws and relations effective in administrative methods of Islamic State?

To clarify this point, it is worth mentioning that “economics” states the general rules and principles governing the economic behavior of human beings, having in fact a “descriptive” nature not a “normative” one. It teaches us, for instance, that extra value is subject to the system of supply and demand. According to this rule, if supply exceeds demand, it leads to a reduction in prices; and if demand exceeds supply, it results in a rise in prices. This idea is stated as a reality in setting prices in economic terms. But the economics can not answer the question of whether we can refrain from supplying the goods needed by people or hoard them to increase the prices. It is the economic school that offers the answer.

Economic liberalism, based on commercialistic ideals and the doctrine of “laissez fair”, permits hoarding, while another economic school may reject it according to the ideal of justice. Therefore, Islamic State - like any other government - can make use of economics in economic planning, but accommodates the selected methods with religious norms, prescribing methods which are consistent with religious values.1

Note

1. For further information, see Sayyid Muhammad Baqir Sadr, Iqtisad-e ma, 1 and 2.