Governmental Judgments and the  Discretionary Sphere of the Law According to Martyr Sadr's Fiqhi Thoughts

Among the new fiqhi questions which receives much attention is the idea of ‘the discretionary sphere of the law’. There are some spheres in the Islamic law which are termed as the discretionary sphere of the law. The importance of the existence of such spheres is not known but the question which has been a subject of speculation and inquiry is whether or not the Islamic law has dealt with it and whether it represents one of the subjects about which God has said nothing or about which no obligatory judgment has been pronounced and a judgment of which is determined by a Muslim Jurist. Martyr Sadr fiqhi thoughts can contribute to the understanding of this question. Therefore, the author attempts to give a clear picture of the discretionary sphere of the law in the light of Martyr Sadr’s thoughts.The claim rests upon the fact that there is a sphere wherein there is no obligatory judgment and this will enable a Muslim ruler to deliver governmental judgments by which the need and interests of Muslims and Muslim nations will be met, thus delivering governmental judgments can make up for obligatory judgments. Of course, any obligation or prohibition resulting from a judgment delivered by the Muslim guardian jurist is not regarded as part of the primary judgments of religion which are ascribed to the faqih. Rather, it is considered as a governmental judgment given by faqih to achieve certain purposes, even though there is no doubt about the legality of these judgments and necessity of abiding by them.