Document Type : Research Paper
Author
PhD, Department of Criminal Law and Criminology, University of Tehran, Tehran, Iran
Abstract
In recent Iranian intellectual space, some thinkers of political thought and jurisprudence (in particular the late Dr. Davood Feirahi) have believed that Iran’s situation in Islamic world is similar to and comparable with England in Europe and Christian world. That's because Iran is a Muslim country yet at the same time a Shi'ite one and England in Europe is a Christian yet at the time an Anglican one. On the other hand, they have believed that the situation and the political project of John Locke in England is similar to and comparable with the situation and the political project of Allameh Mohammad Hossein Naeini in contemporary Iran. That's also because both of them tried to defend freedom and democracy on the basis of a religious ground, that means the holy text. And both of them had religious opponents (Sheiq Fazlollah Nuri and Robert Filmer). Therefore, the quarrel for democracy and freedom at the time of John Locke and Allameh Mohammad Hossein Naeini was a religious one. That means it was religion against religion, both authoritarianism and democracy was based on different accounts and interpretation of the hole text. Hence, in Iran Feirahi believed that secularism isn't our real problem but the problem is religious accounts of authoritarianism and democracy. He believed that the path of democracy passes through a democratic account of religion. Here, what he called as modern theology can make sense.
The main concern of the present article is to evaluate this claim. Is Shi'ite Islam is comparable with Christianity and Anglicanism in particular? What are the differences? At least we know the Constitutionalism movement in Iran came to a different conclusion than the Constitutionalism movement. In Iran, only after two decades after the Constitutionalism revolution an authoritarianist government came to power and it can be said that Rezakhan destroyed democracy. The main subject of my essay is Law but not any kind of Law (Natural Law, Religious Law, etc.). It is only governmental law or human Law. What is created by man and in particular by a government. In order to evaluate the aforementioned claim and what people like Feirahi said I chose the concept of law and on the other hand I tried to study the concept in the context of the two important treatises of these two thinkers; the second treatise of John Locke on Government and Mohammad Hossein Naeini’s Tanbih o lommah va Tanzih o lmellah. It should be added that Law is very important for these two. Locke defines political power on the basis of Law. For Locke, that's Law which draws a distinction between a state of war and a political state. For Naeini, Law is an alternative for ismah (innocence) of imam at the time of qeibah (absence of imam).
It should be noticed that Law in Iran was a goal that so many people had tried the achieve. One the main aims of the Constitutionalism revolution was to create Law and to limit and control the behavior of the governors on the basis of Law. So, the essay studied different aspects of the question of law in the project of those two thinkers (Naeini and Locke) and what the said in their most important treatises (Tanbih o lommah va Tanzih o lmellah of Mohammad Hossein Naeini and John Locke’s Second Treatise on Government). This study is a part of a wider research, which tried to find the basis of such comparison. My methodological approach in present essay is an interpretive-comparative one. That means that I tried to interpret both texts from the viewpoint of Law and after that and the same time I tried to compare the two texts.
The present essay is divided in different parts. First, I studied the foundation of Law in the two treatises (a metaphorical one and a normative one). Then I wrote about the limitations of Law for Locke and Naeini. For Locke and Naeine there two different kinds of limitations. Locke limits Law by Natural Law or Natural Rights and the contents of the very basic contract between people and the governors. On the other side. Naeini limits Law by Shari'ah and the contents of the very basic contract between people and the governors. Then I talked about the Legislative Power (Parliament of Majlis). Here I studied the position of the the Legislative Power and its conditions. And in the end, I wrote about the goal or aim law, what Law tries to achieve. Here I pointed to the relations between public good and its relation with consent.
In the final analysis, the present research shows that in spite of some similarities, there are fundamental differences between John Locke and Naeini, which cannot and should not be overlooked. I believed that the proponents of the claim are ignorant of the differences. Such ignorance twists our system of thinking more and creates more problems.
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