Document Type : Original Article
Highlights
The political jurisprudence of constitutionalism and republicanism appears to have incorporated modern concepts of constitutionalism and republicanism into the contemporary legal-political governance of Iran. This research conceptually compares the principles of sovereignty in political jurisprudence and modern public law, focusing specifically on sovereignty and generally on concepts such as justice, the rule of law, the separation of powers, parliament, freedom, and equality as foundations of modern public law.Theories of political jurisprudence and modern public law regarding sovereignty are based on different principles and elements. The mechanism and framework of the first theory are grounded in theological and metaphysical theories based on clerical representation, while the second theory is based on the governance of mechanical and artificial human theories, rooted in popular representation and founding power.
The main question of the article is the conceptual feasibility or impossibility of constitutionalism and republicanism in modern political jurisprudence and public law. One group, by reducing the meanings of these concepts and distinguishing between form and meaning, believes in their convergence, while another group fundamentally sees an inherent contradiction between them. Using library resources and an analytical and descriptive method with a critical approach, this research analyzes and compares these two concepts. The hypothesis is that the discussed concepts in contemporary political and legal literature are merely nominal and populist, with a semantic disconnect from their meanings. The aim is to elucidate and apply these concepts in the political and legal literature of sovereignty to give meaning to human nature.
To achieve these goals and explain the characteristics and components of constitutionalism and republicanism in governance and political-legal literature, constitutional sovereignty is based on the consensus of free and equal citizens. The foundation of this theory is public consent and will. Constitutionalism is founded on human rationality and autonomous will, forming the principles and system of modern public law. As Martin Loughlin interprets, the emergence of constitutionalism is part of a process of secularization, rationalization, and positivization, where the founding power power creators are seen as sovereigns.
However, the tradition of republicanism in the West has ancient historical roots. Modern republican ideas began with Machiavelli, who equated the praise of republicanism with the establishment of religion and monarchy. The essence of republicanism is the democratic selection of leaders. In legal and political logic, republicanism means a governance structure based on representation. Thus, a republic is characterized by fundamental qualities: the election of the head of state by the people, term limits, accountability, separation of powers, human legislation, freedom, equality, and pluralism, aligning with the basic rights of society's individuals. Therefore, modern republicanism is founded on establishing autonomous legal structures and norms. Although republicanism has various forms, it fundamentally is not just about the form of governance; its content and substance are crucial, without which republicanism loses its meaning. The effectiveness of these concepts lies in their meaningful interpretation.
In contrast, theories of political jurisprudence in constitutionalism and republicanism take a different approach. Political jurisprudence has a long history, but theorizing about the political guardianship of the jurist “-velayat -e- Faqih” in the context of governance belongs to the constitutional and republican era in contemporary Iran during the Qajar period. Prior to this, in the Safavid era, Mohaghegh Karaki attributed political powers to the guardianship of the jurist. Leading political jurists of the Qajar period, such as Sheikh Jafar Kashif al-Ghita, Mulla Ahmad Naraqi, and Sheikh Mohammad Hassan Najafi, were among the early theorists of the political guardianship of the jurist. Naraqi established the theory with broad powers, and the author of "Javaher" also considered jurists as examples of "Oli al-Amr." However, political jurists of the constitutional era did not have a governance discourse; instead, their inclination was towards the dual theory of clerical oversight and monarchy with a divine sovereignty perspective.
In the analysis of constitutional political jurisprudence and sovereignty from the perspectives of prominent representatives and theorists such as Mirza Mohammad Hossein Naeini, sovereignty is a divine right. A constitutional monarchy is still considered usurped governance, justified only to avoid greater harm, and sovereignty is seen as belonging to the infallible Imam. Thus, sovereignty in constitutional political jurisprudence has never been based on human principles and the consensus of free and equal citizens. Therefore, Islamic constitutionalism and constitutional political jurisprudence differ significantly from political constitutionalism in their meaning of sovereignty and related rights.
The political jurisprudence of republicanism can also be analyzed and compared in this context. Imam Khomeini, a prominent representative of republican political jurisprudence, in his theory of the political guardianship of the jurist, like Mulla Ahmad Naraqi, extensively cites religious texts and considers sovereignty, after the Prophet and Imams, exclusive to the qualified jurist, appointed by God. Khomeini's main issue in governance is an Islamic government based on the guardianship of the jurist, viewing it as absolute and integral to Islam. He believes in the unity of Islam and politics, stating that governance is an essential Islamic commandment, with its preservation being one of the most critical Islamic duties. His political and governance theory regarding constitutionalism and republicanism does not have a humanistic concept and denies it as a human right.
In "Al-Bay'ah," Khomeini dismisses human governance based on constitutional and republican principles, explicitly stating that Islamic governance is neither based on human constitutionalism nor human republicanism but on divine laws. In "Sahifeh Noor," he asserts that any other form of republicanism besides the Islamic Republic is anti-Islamic, valuing neither referendum nor national approval against Islam.
The research concludes that the conceptual descriptive and analytical characteristics of political constitutionalism and republicanism contrast and conflict with political jurisprudence in terms of mechanistic and metaphysical perspectives. The relationship between power and rights in public law theories, in divine and human epistemology, places sovereignty and related rights within the realm of humanistic and divine readings. Thus, governance systems in divine and popular sovereignty are inherently in a conceptual deadlock, based on the theory of the impossibility of reconciling these concepts and sovereignties.
