Document Type : Original Article
Authors
1 PhD student, Theology and Islamic Studies, Department of Fiqh and Fundamentals of Islamic Law, Semnan Branch, Islamic Azad University, Semnan, Iran
2 Assistant Professor, Department of Jurisprudence and Law, Islamshahr Branch, Islamic Azad University, Islamshahr, Iran and Director of Sisteran Seminary, Islamshahr, Iran
3 Assistant Professor, Department of Jurisprudence and Law, Faculty of Literature and Humanities, Central Tehran Branch, Islamic Azad University, Tehran, Iran
Abstract
Highlights
The scope of government decree in administrative law based on the theory of al-Faragh region
The meaning of Faragh region in Islamic Sharia is the collection of matters and cases in which Islamic Sharia has assigned the right to legislate and legislate to the guardian or the legislative body under his command or approved by him, so that he can issue the appropriate ruling for the changing conditions. This legislation should be such that it guarantees the general goals of Islamic Sharia
With a brief glance at the chapters of Islamic jurisprudence, the widespread presence of ruling rulings can be found in it; The ruling on sighting of the crescent moon, the necessity of paying zakat in case of the governor's demand, the exchange of hoarded goods, the compulsion of the governor to perform Hajj, judicial rulings and the enforcement of limits, diat and retribution are examples of it.
One of the requirements of the new age is the emergence of issues whose verdict is entrusted to the ruler of the government in Sharia law.
Unfortunately, the importance of this work has remained far from the eyes of many domestic researchers and writers, and most of the books on constitutional law that are taught in universities do not even mention the name of Martyr Sadr. In the field of administrative law in Iran, due to the newness of this field of law, there are still legal gaps and the theory of al-Faragh region can be used in the field of administrative law.
The theory of al-Faragh region considers the right to legislate and legislate for the Shari'a ruler in non-mandatory rulings, that is, the scope of authority, but in the al-Faragh region, it is matters that do not contain the text of the legislation indicating the obligation, while the imposition of any ruling and law on It is forbidden to go against God's rules and laws, and all the five commandments are important and are considered as God's commandments, and there are many reasons that we do not have the right to change and transform the divine commands, even in non-mandatory commands.
Considering that the history of modern legislation in Islamic countries does not reach more than two centuries, what needs to be considered the most is the method of confronting legal scholars in Islamic countries with Western legal systems in this era. The extensive transformations of societies and the prevalence of modernity, including the acceptance of Western legal institutions and rules, made Islamic societies indifferent to the legal tradition based on Islamic Sharia, and of course, significant experiences in this unequal encounter add to the stock of Islamic jurists.
Therefore, it can be said that if we consider the theory of al-Faragh region to be current and current in cases that Sharia does not deal with, it has the ability to firstly use the original capacities of the legal system based on Islamic Sharia and secondly, in facing Western legal systems. leave the position of passivity and provide a suitable methodology model to benefit from the experiences of other legal systems and the legal system based on Sharia in an active position and based on the system, theory, goals and policies to establish rules and produce Pay legal entities
Martyr Sadr, like the Leader of the Islamic Revolution, considers the rules of Islam to be the basis of legislation in the Islamic Republic of Iran, and all programs are established in the light of Islamic Sharia. The fourth principle of the Iranian constitution clearly states that civil, criminal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic standards.
Since the Prophet of Islam was the preacher of the Sharia law and communicated and implemented the word of God Almighty, at the same time, he was also an order, and in this area of al-Faragh, he established rules and regulations that could be changed by the elders. It will have the following matters, as an important result of which the guardian in dealing with these rulings and the traditions that indicate them can not prove them and start legislation by observing the rules. This work has been done with the care of wisdom and Islam has thus made its legislative system eternal and suitable for all times and places. The Islamic government should fill this area based on the interests and requirements of the time and the objectives of Sharia law
Some topics are considered innovative and new for the progress in different dimensions and branches of human life. Some topics are considered new and innovative in order to progress in different dimensions and branches of human life and therefore have not been discussed in detail in the opinions of jurists.
In this environment, administrative law in Iran has many problems. Administrative law in Iran has a lot of issues, problems and issues in front of it, which leads to the spread of administrative law topics and the inability to organize the issues, which of course, the main reason lies in the essence of administrative law.
One of the dimensions of the concept of administrative justice is the public interest, which is two-faceted: the first facet is the supervision of the actions and decisions of a type of government and public authorities, which is often done through regulations and the establishment of regulations, and the second facet is the judicial supervision of These are the actions, in fact, it is the administrative courts that supervise the expediency of the government. These two aspects of public interest can be seen as a combination of determining expediency through regulation and its verification by administrative courts, the latter of which is ad hoc in the field of administrative justice.
In administrative law, public interest includes the concept of public interest. Establishing public interest and providing public services is one of the foundations of administrative law in Iran. Therefore, in administrative law, expediency is the main rule for legislation and rulemaking
The existence of "Al-Faragh Zone" in the Sharia system is not a defect on it, but the Holy Sharia has drawn such an area to meet the needs of the day to include the flexible area of the Sharia in facing the developments of time. The basis of legislation in this field is the general laws of Sharia and the constitution. On the other hand, the theory of al-Faragh region is one of the earlier theories in the Islamic legal system, which can be used as a legislative theory in the Iranian legal system. The main components of this theory, which was expressed from the origin of Imami jurisprudence and with the motive of showing the legal system based on Sharia, are:
The area of al-Faragh Shariah does not mean that there is an area free of rulings in Islamic Sharia, but it means that this area is free of mandatory rulings; Al-Faragh area includes a wide area in such a way that it includes all the matters in which jurisprudential reasons have not provided a specific prohibition or obligation, and it is possible to establish legal rules by relying on rationality or reliable human experiences.
Legislators in the position of establishing the legal rule or the courts in the position of implementing these rules may face conflict, in which case it is necessary to have criteria based on which to choose the best interest and establish or implement the appropriate legal rule. It seems that one of the preferences for legislation in Al-Faragh region is to pay attention to the real interests and the type of human being in different dimensions of individual, family and society.
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