مجله مطالعات فقه معاصر
سال پنجم شماره 8 (پاییز و زمستان 1398 و بهار و تابستان 1399)

"Human dignity" in the sense of honor and greatness is divided into two types of acquired and innate. Intrinsic dignity in the sense of "the natural dignity that is entrusted to the human being as human being, will include all human beings of all races and colors and with all beliefs and cultures. And one of the most important questions in this regard is whether, from a religious point of view, such dignity can be the basis of human rights or not. The Constitution of the Islamic Republic of Iran, in its second principle, has made human dignity one of the faith foundations of this system and many of its principles are absolutely based on "man", "Iran" and "nation", which show the acceptance of the principle of inherent dignity in the field of legislation. The basis of such an approach is that human beings, by virtue of humanity and according to God-given creation and nature, have natural commonalities, and these natural commonalities will lead to common human rights. Therefore, what the merit and talent that the hand of creation has created and entrusted to each individual and distributed equally among them, requires that the rights of life be equal among its individuals and that everyone enjoys it on the same level.

The most important question about the constitution of the Islamic Republic of Iran, which plays a decisive role in the structure of the system, is the type of relationship and its relation with the leadership of the Islamic government. Based on some jurisprudential (Islamic Fiqh) evidences in proving the Velayat (the guardianship/ governance of the Islamic jurist) for a fully qualified jurist (faqīh), and consequently based on Article 4, which emphasizes the Islamic nature of all laws and regulations and this principle is taken for granted to govern other generalities and absolutes of the constitution, and also according to Article 57, which was added to the issue of Velayat in the revision of the term "absolute", some individuals consider the leadership of the Islamic government to be absolute and this position is deliberated beyond the law and even the legitimacy of the constitution depends on it. But we do not think this is a correct assumption, because it is not compatible with the "authorized and structural" constraints of the constitution, or with the specification of legislative experts in the Assembly of Experts, nor with Imam Khomeini's theory in explaining the fact and evidence of the Velayat for the Islamic jurist (faqīh). Constitutional experts have distributed power and authority in designing the structure of the Islamic government among several institutions and the scope of authority of the leadership of the government has also been considered within the framework and under the supervision of the law. This view of experts is in line with several arguments; the abolition of the feature of certitude as to subject and Judge's knowledge, the need for a balance between ability and responsibility as a rational principle and Imam Khomeini's elaboration between the principle of the fact of the Velayat and to undertake responsibility and formation of the government. In addition to examining the reasons in question, this article provides a report from the ruling view of the Assembly of Experts, which was crystallized in the words of Ayatollah Beheshti.

In political thought, various theories have been proposed by philosophers about the right of sovereignty and the characteristics of rulers. During the presence of the Infallible Imams (PBUH), the Shiites did not face any theoretical problems regarding the leadership of the society. Unlike the period of occultation, which did not provide access to the Infallible Imam, the necessary conditions of the ruler or leader of the Islamic society and how he was elected have become of special importance. The discussion of Velayat-e-Faqih/ Wilayat al-faqih and Velayat-e-Fuqaha (the Guardianship of the Islamic Jurist/s) is based on narrations in this regard, which seems to refer more to minor Velayat or guardianship such as the guardianship of Ghoy'yab (absentees: is the plural of the word absentee and refers to a person who is absent and cannot be reached), and Ghos'sar (the plural of the word Ghaaser or a person in default and it refers to people like crazy, idiot and child who are legally prohibited from seizing their property) and adjudication, not Velayat or guardianship, which means governing society. In the discussion of the guardianship of fully qualified jurists, the issue of being chosen or accepted by the people has not played an important role and basically, the debate has been about the dignity of the jurists, one of which is the Velayat or guardianship. Disagreement about the meanings and implications of these narrations and their extension to Velayat-e-Faqih as the ruler of society creates many problems and the first problem is the method of choosing a jurist from among the fully qualified jurists and his legitimacy. There are two views on the legitimacy of the Vali-ye faqih in the Islamic government: a) a view that sees Velayat-e-Faqih in government in a broad sense; based on arguments other than narrative arguments or it carries those narrations on a set of conditions, not on a divine appointment. In this view, the choice by the people is a definite and serious matter for legitimacy; b) the second view believes in the general appointment of jurists in the realm of the scope of government. Proponents of this view have to make various justifications for preferring one of these jurists over the other. These justifications also have many problems, some of which are mentioned in the article.

Shiite jurists have articulated two types of orders and expediency: fixed and variable. Fixed orders have a permanent expediency that does not belong to a specific time and place. Variable orders have a mutable expediency and appear at any time and place in a manner commensurate with it. These orders are also called "Velaee" or governmental orders. Most Shiite jurists have not accepted the position of expediency in deriving the Shari'a law. On the other hand, the same jurists have expressed various views on expediency in the position of implementation and obedience. The expediency that is dealt with in the legislation and legislative system is the same expediency in implementation or obedience. The subject of expediency requires a wide-ranging discussion and is beyond this short text. In this article, we have only mentioned the necessity of expediency in legislation, the authority for determining expediency, the criteria of expediency, proving expediency (whether expediency in the legislative position should be definite or doubtful) and its practical process in society

From the time of the Persian Constitutional Revolution until now, the main concern of religious scholars in the matter of legislation has been the compliance / non-compliance of laws with the rules of Sharia and Sharia laws. At that era, at the insistence of Sheikh Fazlullah Nouri, the second principle of the amendment, that a body of first-rate mujtahids (Islamic jurists) should oversee the legislative process, was incorporated into the constitution. Although this principle was never implemented, after the Islamic Revolution, the drafters of the constitution, anticipating the institution of the Guardian Council, tried to find an appropriate answer to this concern. This time, although this institution was formed and gained power in practice, but due to some ambiguities in the law and subsequent weaknesses in the interpretation or implementation of the law, it went in a direction other than what the legislator intended; (especially people like Shahid Beheshti in the Assembly of Constitutional Experts). In this article, we try to briefly recount some of these ambiguities and executive weaknesses.

Every government is based on the law, and the law in the Islamic government is based on the rules of Sharia. The necessity of non-contradiction of the resolutions of the Legislative Assembly with the Sharia rules has been mentioned in the constitution since the time of the Persian Constitutional Revolution and various principles of the constitution of the Islamic Republic have emphasized this issue. Now we have to examine which fatwa is the criterion for measuring laws and resolutions according to Islamic rules? Which fatwa has the Guardian Council set as a criterion in the current situation? The Guardian Council is responsible for assessing laws in accordance with Islamic law and rules. What is the desired situation in determining the standard fatwa and how can this situation be achieved? Basically, what are the characteristics of a standard fatwa? In this article, the author has tried to answer these questions, by examining the possibilities that can be raised about the standard fatwa, to explain the efficient fatwa as a superior theory.

According to Article 57 of the Constitution, power in the Islamic Republic of Iran is exercised through the legislature, the executive and the judiciary. These branches/forces of the Iranian Islamic system are independent of each other. The Fifty-seventh Principle, first, distributes political power and, second, considers them independent. At the same time, since absolute independence is not possible, other principles regulate how the forces interact with each other. On the other hand, constitutional experts, with their bitter historical experience of abusing government power, have created a clear imbalance in regulating the relationship between the executive and the legislature. So the government is absolutely accountable to the parliament, while the parliament is absolutely accountable to the government. In the present dialogue[1], we claim that this inequality - whatever the motive - has created great challenges and problems for the optimal management of the country and good governance. To prove this claim, while stating the methods of government control by the parliament, the problems of each of these methods are explained and then some solutions and suggestions are suggested to get out of the existing problems. However, we know the final solution is to amend the constitution.

This paper examines the issue of power supervision in the Islamic thought and the constitution of the Islamic Republic of Iran. In Islamic thought, by accepting the possibility of human revolt due to enjoying abundant power and wealth, the need for supervision is emphasized and to control those in power, internal and external measures have been devised. Infallibility in the Imam of the society in the age of appearance and justice of the ruler in the age of occultation are among the internal strategies to protect the nature of the government as a trust and prevent it from becoming a property. External supervision has been projected with measures such as "enacting the law based on public interests and obliging statesmen to the law", "public right and duty to enjoin what is good and forbid what is evil", "right to criticize" and "right to object" and "right to impeach and dismiss". In the constitution of the Islamic Republic of Iran, in order to prevent the deviation of the government and ensure its trustworthiness, these measures are included in various arrangements and numerous principles. A review of the 40-year performance of the Islamic Republic of Iran shows that the existing preparations are not enough and strengthening the supervision over government agents at various levels is considered as a necessity.

One of the preconditions for the pursuit of right and justice in society is the relationship between law and justice. The flow of justice in legislation is recognized as the manifestation of this relationship. But in Islamic society, this relation is reduced to the relationship of Fiqh and justice and for a just law in such a system, it is necessary to determine the relationship between Islamic jurisprudence and justice. Based on the premise of the positive role of justice in Islamic jurisprudence, the present article seeks to investigate the reflection of this relationship in the theory and system of Islamic legislation. The research data show that, in accordance with the two-stage structure of the legislative system, consisting of Majlis (the national legislative body) and the supervisory board of jurists, the scientific and executive exploration of each of these two stages differs depending on whether the Islamic jurisprudence is full of fair fatwas or it is empty-handed. In general, the work of Majlis (the national legislative body) is to study the subject matter and to prove it to be a case accurately and reliably, and the work of the Board of Jurists is to trust the expertise done by the Majlis and to study jurisprudence on the extent of justice. This is something that occasionally occurs in the form of Iftā (the act of issuing fatwas is called iftā) in the history of jurisprudence in the absence of a just fatwa and because of this, not only the position of representative and the position of Fiqahah (jurisprudence) has found its place in the Islamic legislative system, and neither of them will interfere with the work of another. Rather, both together provide the hope for legislative and legal justice as a product of the living Islamic legislative system, and consequently the realization of a just Islamic system.