آمار
| تعداد نشریات | 54 |
| تعداد شمارهها | 2,598 |
| تعداد مقالات | 36,984 |
| تعداد مشاهده مقاله | 17,446,233 |
| تعداد دریافت فایل اصل مقاله | 7,919,099 |
The Relationship Between the Role of General Will in Modern Law and Islamic State Law in Imam Khomeini’s Jurisprudential-Political Thought | ||
| Islamic Political Studies | ||
| دوره 7، شماره 1 - شماره پیاپی 12، فروردین 2025، صفحه 167-188 اصل مقاله (1.07 M) | ||
| نوع مقاله: Original Article | ||
| شناسه دیجیتال (DOI): 10.22081/jips.2025.72396.1085 | ||
| نویسندگان | ||
| Seyed Ehsan Rafiei Alavi1؛ Hamid Maddahzadeh* 2 | ||
| 1Associate Professor, Department of Law, Baqir al-Olum University, Qom, Iran | ||
| 2PhD. Student, Department of Jurisprudence, Fundamentals of Law, and Imam Khomeini's Thought, Baqir al-Olum University, Qom, Iran | ||
| تاریخ دریافت: 29 تیر 1404، تاریخ بازنگری: 12 شهریور 1404، تاریخ پذیرش: 06 شهریور 1404 | ||
| چکیده | ||
| One of the theoretical and practical challenges between the modern legal system and the legal system of the Islamic state is the relationship between fiqh (Islamic jurisprudence; henceforth, simply as “jurisprudence”) and law. In the Islamic state, jurisprudence is considered the primary source of legislation, whereas in modern legal systems, law is primarily derived from the element of the "general will." This fundamental difference has led to questions regarding the compatibility or incompatibility of these two legislative models. The main issue of this research is to examine the position of "general will" in modern law and compare it with the position of this concept in the law of the Islamic state as conceived by Imam Khomeini. This research pursues two main objectives: 1) To explain the position of "general will" in the modern legal system and analyze its relation to law based on jurisprudence. 2) To examine the views of Imam Khomeini, the architect of the Islamic Republic of Iran, in order to clarify how jurisprudence and law interact within the framework of the Islamic state. This research was conducted using an analytical-descriptive method and based on library resources. In this regard, the theoretical foundations of the "general will" in modern law were first examined, and then, through the analysis of Imam Khomeini's views, the position of this concept in the law of the Islamic state was explained. The findings of the research can be summarized as follows: 1) In the modern legal system, law is defined as the manifestation of the general will, and its legitimacy is dependent on the will of the majority of society. This perspective is rooted in the ideas of the social contract, which sees law as a human-made and changeable construct. 2) In Imam Khomeini's jurisprudential-legal system, although law must align with the principles of Islamic sharia, the role of the people in legislation is not overlooked. He emphasized the theory of "Wilāyat al-Faqīh" (Guardianship of the Jurisprudent), asserting that the legitimacy of government requires popular acceptance, but the content of laws must be within the framework of Islamic rulings. In other words, the "general will" is understood within the framework of divine law, not independently of it. According to Article 56 of the Constitution of the Islamic Republic of Iran, the sovereignty of the people exists within the sovereignty of God, and, conversely, it can be said that Islam sets the limits for the republican aspect of the system. 3) The interaction between jurisprudence and law in Imam Khomeini’s thought demonstrates that jurisprudence can respond to the evolving needs of society by utilizing ijtihad (juridical reasoning) while maintaining the fixed principles of Islam. This is particularly evident in Imam Khomeini's ijtihad-based model and his special attention to the role of time and place in ijtihad. According to Imam Khomeini, the form of government depends on the temporal and spatial requirements determined by the people, but its content must be based on Islamic laws and rulings. This perspective offers a way to reduce the apparent conflicts between jurisprudence and modern law. This research shows that, although the foundations of the legitimacy of law differ in the modern system and the Islamic state, Imam Khomeini’s thought does not entirely dismiss the role of the people in the Islamic government. Rather, it is defined within the framework of Sharia. This finding can help reduce the theoretical challenges between the two legal systems and prevent potential misinterpretations of the relationship between religion and law in the Islamic Republic. | ||
| کلیدواژهها | ||
| General will؛ jurisprudence (fiqh) and law؛ Islamic state؛ modern law؛ Imam Khomeini | ||
| مراجع | ||
|
Adamiyat, F. (2015). The idea of freedom and the introduction to the Constitutional movement. Tehran: Sokhan. [In Persian]
Ajedani, L. (2020). Iranian intellectuals during the Constitutional era (5th ed.). Tehran: Akhtaran. [In Persian]
Akbari Moallem, A. (2015). The indices of Imam Khomeini's political thought (in three parts: political philosophy, political jurisprudence, and political ethics). Scientific-Research Quarterly of Islamic Revolution Studies, 12(42). [In Persian]
Amiri, M., Rahmatifar, S., & Gorji Azandaryani, A. A. (2023). An analysis of the role of public will in the Constitutional Law of the Constitutional Revolution and the Islamic Republic of Iran. Studies in Economic Jurisprudence, 5(5), pp.773-790. [In Persian] Cassirer, E. (2014). The myth of the state (Y. Moughgen, Trans.). Tehran: Hermes. [In Persian]
Islamic Political Research Group. (2000). The components of Imam Khomeini's political thought. Tehran: Institute for Humanities and Cultural Studies. [In Persian]
Javadzadeh, A. R. (2011). The legitimacy of government during the occultation era according to Akhūnd Khurāsānī. Hawza, 28(161), pp. 206-268. [In Persian]
Javidi, M. (2021). The manifestation of subjectivity in Jean-Jacques Rousseau's theory of the general will. Quarterly Journal of Public Law Studies, 51(1), pp. 355-374. [In Persian] Kant, I. (1990). The groundwork of the metaphysics of morals: A discourse on the philosophy of action (H. Enayat & A. Gheysari, Trans.). Tehran: Kharazmi. [In Persian]
Kazemeini, S. M. H. (2019). The constituent elements of law and the approach to it in the Islamic legal system. Studies in Public Law, 49(1), pp. 271-290. [In Persian]
Khomeini, S. R. A. (2010). Ṣaḥīfa-yi Imam: The collection of Imam Khomeini's works (5th ed.; Vols. 20-21, 4, 11, 15). Tehran: Institute for the Compilation and Publication of Imam Khomeini's Works. [In Persian]
Khomeini, S. R. A. (2013). Guardianship of the jurist: Islamic government (28th ed.). Tehran: Institute for the Compilation and Publication of Imam Khomeini's Works. [In Persian]
Madadpour, M. (2006). The evolution of contemporary thought. Tehran: Soore Mehr. [In Persian]
Modir Shanechi, K. (2013). The history of Islamic jurisprudential schools. Qom: Boostan-e-Kitab. [In Persian]
Mousavi, S. F. A. (2006). The rationale for the enactment of a law and its appropriate timing. In Proceedings of the Centennial of Legislation Conference. Tehran: Research Center of the Islamic Consultative Assembly. [In Persian]
Nāʾīnī, M. H. (2013). Tanbīh al-Umma wa-Tanzīh al-Milla. Qom: Boostan-e-Kitab Institute, Publications of the Islamic Propagation Office. [In Arabic]
Rahmani, Q., Kadkhodamoradi, K., & Saeidi Aboueshaghi, M. (2021). A critical analysis of the intellectuals’ approach to the concept of law during the Constitutional era based on the philosophical foundations of modern law. Studies in Public Law, 51(2), pp. 929-950. [In Persian]
Ranjbar, M. (2005). Legitimacy from the perspective of Imam Khomeini and the role of the people. Pigāh-i Ḥawza, no.178. [In Persian]
Rasekh, M., & Bakhshizadeh, F. (2013). The prelude to the concept of law during the Constitutional era: From the owner of the property to regulations. Legal Journal of the Judiciary, 83, pp. 35-58. [In Persian]
Rousseau, J. J. (2000). The social contract: The text and its context (M. Kalantarian, Trans.). Tehran: Agah. [In Persian]
Rousseau, J. J. (2016). The social contract (2nd ed.; G. H. Zirakzadeh, Trans.). Tehran: Ghasedak Saba. [In Persian]
Shahabi, M. (2022). Philosophy of law: The theoretical foundations of the transformation of the legal system from traditional law to modern law (4th ed.). Tehran: Research Institute for Islamic Culture and Thought. [In Persian]
Sobhani Tabrizi, J. (1988). Tahdhīb al-uṣūl (3rd ed.; Vol. 1). Qom: Dar al-Fikr. [In Arabic]
Tahan Nazif, H., & Ehsani, R. (2017). A new reading of the analytical views on the concept of law during the Constitutional era. Journal of Islamic Legal Studies, 18(45), pp. 57-80. [In Persian] | ||
|
آمار تعداد مشاهده مقاله: 253 تعداد دریافت فایل اصل مقاله: 111 |
||