A Study on the Jurisprudential Precepts Contradicting the Public Order

Execution of religious precepts and managing the important and public affairs is among the duties of the sharia ruler or the highly qualified religious jurist and the arbitrary action as to these affairs by members of society without the authorization of sharia ruler is not acceptable. There are precepts in the Islamic jurisprudence including prescribed punishments whose execution by ordinary people, at first sight, appears to be permitted while if they fall within the competence of the public, this leads to chaos in the society and is, apparently, against public order. The present paper, through case studies on a number of such precepts, seeks to answer the question whether assigning them to the public contradicts the public order or not. The conclusion is that such precepts were issued at a time when the Islamic state was not established and the individual jurisprudence prevailed and private interests were preferred over public interests. However, in situations the righteous Islamic state is established and the social and political jurisprudence prevails, the precepts of the governmental jurisprudence are given priority over the above said precepts. Some precepts which contradict the public order and have been issued due to necessity are restricted to exigent circumstances.  Proving the point that whenever the great jurists have mentioned order they have intended public order is also an achievement of this research which has been performed using library tools and through descriptive-analytical method.