The Nature of the Prophetic State

Firouz Aslani / Associate Professor, Tehran University                                      faslani@kayhannews.ir

Zabihullah Moradi / PhD Student in Public Law

Received: 2019/1/1 - Accepted: 2019/5/9

Abstract

Most Islamic scholars, both Shiite and Sunni, have no doubt about the necessity of forming a government in Islam and believe that Islam is not separable from politics. In their view, the Prophetic conduct shows that the execution of the Islamic law is not possible, except with the formation of the government. However, referring to some verses and narrations, some Muslim intellectuals, influenced by the slogan "separation of religion from politics", considered the leadership of the Prophet to be spiritual, and have separated the realm of the mission from the government. Using a descriptive-analytical method and discovering the relationship between religion and politics in the prophetic government, this paper seeks to answer this important question as to whether the Prophet's leadership and authority on people were based on religious teachings or had a civil and customary basis, and the people themselves have left the government to the Prophet. The findings indicate that, based on the Quranic teachings and prophetic teachings, government and politics were part of the teachings of the Prophet, the universality of the religion of Islam, presence of specific sentences and general principles of religion, all seek a religious government. Therefore, the nature of the prophetic government is religious, and the politic is its integral part.

Keywords: propheticgovernment,civilgovernment, religion, politics, appointedgovernment.

Variable Elements of the Basic Rights of the I.RI. in Terms of Jurisprudence and Law

Mohammad Reza Bagherzadeh Aval / Assistant Professor, IKI             bagherzadehfirst@yahoo.com

Mohammad Baqer Fahimi / M.A in Law, IKI

Received: 2019/1/18 - Accepted: 2019/5/15

Abstract

The basic rights of the Islamic Republic of Iran, by templating from the teachings of jurisprudence and the Islamic law, has considered some elements to be fixed, and others to be variable. Fixed elements are based on fixed needs and variable elements are based on variable needs. The identification and separation of these two types of elements can meet the variable needs, and regulate of the complex political and social relations of the present age. Based on the logical and rational criterion, five variables are identified, three of which are related to the governmental rules, the executive mode of government and formal rules of internal affairs, and the other two elements are related to foreign and international affairs. Identifying and analyzing these elements from a jurisprudential and legal point of view is an explanation and interpretation of the Article 177 of the Constitution of the I.R.I, in which some of the fixed elements of the political system of I.R.I are noted, but there are no references to the changing elements in the political system of the I.R.I., while the variable elements of the basic rights represent the efficiency and effectiveness of the political system, which is adaptable to the changing circumstances of society, and with the advancement of science and human experience, it is possible to offer them new and effective components to have lower cost and to be more efficient.

Keywords: constant, variable, basic rights, governmental Commandments, jurisprudence, law.

A Survey into the Shahid Beheshti's Thought of Basic Rights

Seyyed Mohammad Hadi Hasani / PhD Student in Public Law                             sh.hasani@chmail.ir

Received: 2018/8/3 - Accepted: 2019/2/11

Abstract

Analyzing the views of the practitioners and founders of the formulation and institutionalization of a revolution is always effective in understanding the principles of that revolution.

Meanwhile, analyzing the views of Shahid Beheshti, as the main director of the meetings of the Assembly of Experts for Constitution, is of great importance considering his special role in drafting this law so that this approach can be used to interpret the constitution based on discovering the purpose of the writers. Using a descriptive-analytical and desk-research method, this paper analyzes Shahid Beheshti's thought of basic rights. Among the findings of this research, one can refer to the particular intellectual system of Shahid Beheshti in the field of basic rights including the specific characteristics in terms of constitution, deep insights on the Guardian Council, special attention to the condition of the President in terms of being male, special status of the Judiciary, freedom of speech for Members of the Parliament, a special approach to the leadership-nation system "Imamate-Ummah" and, of course, legitimate freedoms in the constitution, which distinguishes his view of the constitution than the others.

Keywords: thought, basic law, Shahid Beheshti, public freedoms, Guardianship of the Islamic Jurist, the leadership-nation system.

Pondering over the Concept of the "Legal Personality of the State"

Nourbakhsh Reyahi / PhD Student in Public Law                                             N_RIAHY@yahoo.com

Received: 2018/9/26 - Accepted: 2019/3/16

Abstract

A legal theory should be created to meet the needs of the target community. Therefore, in terms of definitions, standards, criteria, concepts, principles and theoretical terms, it must have integrity, certainty and comprehensivity, and be able to answer questions and ambiguities. The "legal personality of the state" is a popular theory in law and the basis of all government activities. The government has rights and responsibilities as an indispensable necessity at the head of legal entities and has a wide range in today's life. Here, the question arises whether there is a logical order and internal cohesion between the concepts, elements, principles, responsibilities of the legal personality of the state and its components? Using a documentary research, this paper is based on the hypothesis that, the theory of the "legal personality of the state", in its fundamental assumptions and foundations, is defective in various dimensions, and these internal and conceptual contradictions have led to many theoretical differences in the field of legal personality of legal entities, especially the state. While explaining and highlighting these concepts and foundations, this paper, concludes and suggests a revision of the notion of "legal personality of the state".

Keywords: rights, the state, person, personality.

The Principles of Administrative Law in the Tradition
and Conduct of the Infallibles (P.B.U.T)

Jafar Zarei / PhD Student in Public Law                                                             zaree.jafar@yahoo.com

Received: 2018/9/30 - Accepted: 2019/4/10

Abstract

Administrative rights as an executive arm of basic rights are of particular importance. Due to the evolution and development of administrative law, it is necessary to extract the principles and rules of this law from the science of law to be recognized in the course of the evolution of rules, instances, and minor affairs in an easy and fast way. In connection with the principles of administrative law in the West, research has been conducted in English and Persian. The main question of the paper is what are the principles of administrative law in the governmental conduct of the infallibles (P.B.U.T)? And what status do they have? Using a descriptive-analytical and desk-research method, this paper studies the principles of administrative law in the conduct of the infallibles (P.B.U.T). The findings indicate that some of the governing principles of administrative law are: rule of law, justice, choosing the best and supervision. These principles are explained with a Divine look and have a legal guarantee in the conduct of the infallibles (P.B.U.T).

Keywords: principles of administrative law, administrative law, conduct, administrative principles, legal rules.

A Comparative Study of the Theory of State from
the Viewpoint of Aquinas and Imam Khomeini

Reza Mohammadi Karaji / Assistant Professor IKI                                   Rmohamadi235@gmail.com

Received: 2018/10/1 - Accepted: 2019/4/14

Abstract

The political thought of Imam Khomeini, a philosopher, thinker and mystic, who promoted the theory of the state based on the principles of Islam, in comparison with thinkers and philosophers, especially the ancient philosophers, has proved the supremacy, comprehensiveness and effectiveness of the political thought of Islam and has added to the richness of the discussions. Using a desk-research and written and spoken works, this paper has studied the theory of the state from Imam's point of view with Thomas Aquinas' viewpoint with the general rights approach with a comparative approach and has extracted its similarities and differences. Supernatural and Divine purpose of the state, divine legitimacy, the needs of government to revelation, religious institution leadership, the condition of knowledge and justice for the ruler, the basis of the law on the Divine law and popular monitoring of the state are among the main similarities of these two viewpoints. These two ideas have the finest differences in terms of the type of government, the reason for the necessity of the state, the relationship between the government and the religious institution, the status of the people and the necessity of forming a government on the fittest individual.

Keywords: government, religious government, Aquinas, imam Khomeini, legitimacy of government.