Contemporary Jurisprudence

Prof. S. Muh. Ali Ayazi

Note: Prof. S. Muh. Ali Ayazi, although he is mostly known for his Quranic researches, his researches are also numerous in the field of emerging jurisprudence, so that one of his most important concerns is organizing them into contemporary jurisprudence chapters. In these years, he has focused a lot on human rights and the necessity of observing these rights in jurisprudential fatwas. In this special oral note, this innovative jurist tries to briefly express the jurisprudence of citizenship rights. This caused him to name this note as "Introduction to the jurisprudence of rights and duties of citizenship".

Clue: In the past, there were cities and urbanization, but this process has not been completed. Naturally, rights become meaningful when a person pays attention to them. The fact that in Islamic jurisprudence the issue of rights in general and citizenship rights was not raised and the jurists did not have an idea about these rights is because they had not gone through this stage of recognizing mutual behavior and the obligation to observe rights. Jurists always take their issues from the society and until there was no issue or question, the jurist did not look for it either. Today, when the issue of citizenship is brought up, unprecedented issues are mentioned in the record, and therefore the jurist is required to examine them.

Jurisprudence requirements of citizenship rights

To understand the jurisprudence of citizenship rights, we will first explain the concept of citizen and his conceptual dimensions.

1) Definition of citizenship

A citizen is someone who is accepted as a member of society and has social and political rights and can benefit from its concessions. Thus, citizenship is an idea that recognizes both the right of individuals to enjoy rights and their collective responsibility, which is based on the stable management of affairs.

2) Definition of citizenship jurisprudence

Citizenship jurisprudence is the dos and don’ts that can be examined and commented on in three areas: 1) requirements, 2) assignments and 3) rights, which it is necessary for an contemporary mujtahid to raise its issues.

1) Requirements in citizenship jurisprudence: Requirements are those that a society interacts with each other to provide the basis for paying attention to rights.

2) Duties: In citizenship jurisprudence, there is a category of Shari’ah, moral and legal dos and don’ts. These assignments, like other chapters of social jurisprudence, give instructions to the obligee; Like it is necessary to respect people’s privacy and it is forbidden to violate it.

3) Citizen’s rights: it means those things that every citizen can demand and if someone does something in line with that right, it cannot be impeached; Like freedom of speech and having newspapers and magazines. Citizenship rights refer to the set of rights that people should have due to their citizenship status. It is also called the set of rules that governs their position in society; Therefore, “citizenship rights” is a relatively broad concept that includes civil and political, economic, social and individual rights.

Therefore, this ijtihad is in the structure of social jurisprudence and issues are raised in it, many of which are not mentioned in individual jurisprudence, or do not fit into that format, or are changed due to the social structure, such as the protection of privacy, which in the past, such a title has not been mentioned; Also, topics such as the position of women in society, unanimity in judgment, the need to have a lawyer for the accused, etc.

Citizenship rights are one of the inherent rights of human beings. Also, these rights are non-transferable and indivisible, so that their elements are necessary and binding on each other.

3) The requirements of examining the problem

Citizenship jurisprudence was not mentioned in the previous books. In the books written as utopia, a model of a society in which citizens walk the path of excellence is drawn. Some of the citizenship issues have also been raised in Al-Hasbah rulings, which are mostly the needs of a citizen in the urban system; But now it is mentioned sporadically in various chapters of contemporary jurisprudence.

In the meantime, there are issues that are out of jurisprudence and are included in theological discussions, such as human dignity, right to life, health and quality of life. He also extracted some topics from general evidence; Because it has no history in jurisprudence, such as the right to participate in self-determination, the right to access information, and the right to access cyberspace. For this reason, it is necessary for a jurist to pay attention to these rights, the foundations and philosophy of jurisprudence, as well as some rules of social jurisprudence.

In such an environment of urban life, scientific and jurisprudential needs are met through dialogue and mutual interactions of people with each other; Therefore, what seems necessary in the process of this type of life is regularizing the relationships of people in the urban society in the form of duties and rights with a jurisprudential approach. This helps to prevent chaos and instability in the society. Also, respecting these rights makes the society moral.

4) Citizenship process:

According to some experts, when the issue of their legal do’s and don’ts is raised and they reach a stage of understanding mutual behavior where they consider themselves obliged to respect each other’s rights and fulfill their responsibility towards the society, they are promoted to “citizen”. For this reason, becoming a citizen is a process of civilization and transformation from individualism to collectivism and collective self-awareness.

In the past, there were cities and urbanization, but this process has not been completed. Naturally, rights become meaningful when a person pays attention to them. The fact that in Islamic jurisprudence the issue of rights in general and citizenship rights was not raised and the jurists did not have an idea about these rights is because they had not gone through this stage of recognizing mutual behavior and the obligation to observe rights. Jurists always take their issues from the society and until there was no issue or question, the jurist did not look for it either. Today, when the issue of citizenship is brought up, unprecedented issues are mentioned in the record, and therefore the jurist is required to examine them.

5) The rules of citizenship jurisprudence

It means those principles and rules that are the governing principles of jurisprudence.These principles are sometimes used from the text of verses (dignity, justice, right to life) and hadiths (principle of acquittal from a crime except with proof, importance of honor) and sometimes from accepted principles cited by jurists (such as the principle of human authority over property and life: people have the right over their properties), is extracted and expresses the principles governing the relations of citizens.

Of course, these principles and rules are ranked, such as 1) the principle of dignity, 2) the principle of justice, 3) the principle of compatibility, 4) the principle of recognizing dissenters, 4) the principle of avoiding violence. 5) The principle of mutual responsibility. 6) The principle of prohibition of discrimination. 7) Right to life.

For example, human dignity has a very broad concept in citizenship rights, which has a significant place both in human rights documents and in our religious foundations. One of the important examples of this issue in citizenship rights is respect for human humanity, regardless of belief, language, race, or occupation, which finds many manifestations in duties and rights.

6) Divisions in citizenship jurisprudence

Citizenship jurisprudence can be divided into three parts: 1. Requirements. 2. rulings 3. Rights.

7) An example of citizenship jurisprudence

One of the requirements of citizenship rights is to pay attention to the point that the acceptance of this system has a relationship with duty-oriented jurisprudence and what accessories do its acceptance bring? For example, do citizens of different religions have the same rights? Can a Zoroastrian become president? Can a Jew become president? Does a Kurd have the same right in Tehran as a Tehrani? Does a Sunni have the same rights as a Shiite in Iranian cities? Another requirement of this jurisprudence is the acceptance of religious freedom, even though the majority of the country is Muslim. As a result, in our country, being a Muslim is not a condition for having citizenship rights, so a Muslim will have the same rights as a Baha’i or a Jew.

There are also discussions in the area of citizenship assignments. For example, is the observance of veil one of the religious duties of Islam? Does this Shari’ah duty create a special requirement? (It means a task inside the city, not in an organization and office, which according to the contract between the employees, it is necessary to use uniforms, such as soldiers, doctors in hospitals, workers in some factories and companies, etc.) Also, tasks related to individual responsibilities, such as voting, serving in the army, respecting the law and the rights of others, paying taxes, etc. Of course, what is meant by duties, both obligatory duties and recommended duties, which the jurists have interpreted as moral affairs, and there are many cases of such, such as good behavior of neighbors, forgiveness of citizens’ transgressions, assistance and cooperation with those in need, assistance to the survivors and the injured.

Challenges of citizenship jurisprudence

The jurisprudence of citizenship rights is facing many and various challenges. Some of these challenges are as follows:

1.The unprecedentedness of the discussion in the books of the predecessors; For example, in the field of citizenship rights, which has a very wide scope in the civil, political, economic and social fields, no title can be found in the books of the predecessors.

Gender; Another challenge is the issue of gender. Can a woman, like a man, take advantage of urban opportunities, such as going to the gym? Can she have a music concert master like a man? Can it have solo singing? Can she be appointed in sensitive management jobs? For example, can she become a judge or a minister or a lawyer?

These are examples of the challenges of citizenship jurisprudence with traditional jurisprudence.

The difference between citizenship rights and human rights

Although the foundation of citizenship rights is the Declaration of Human Rights and the principles contained in the Declaration of Human Rights are foreseen in the place of citizenship rights and as a result of these two, they have a common basis; But they also have differences with each other.

First: domestic and international

Human rights is an international treaty that was approved by the United Nations General Assembly and contains 30 articles that describe the United Nations’ view on human rights. This declaration has specified the basic civil, cultural, economic, political, and social rights that all human beings, in any country, should enjoy. Naturally, this declaration has a wide scope beyond citizenship rights; Because citizenship rights are rights that are defined and specified among the people of a country, while human rights are an international covenant.

Second: audience difference

Since citizenship rights deal with the rights of the citizens of a country, therefore, these rights have taken on a national color. Meanwhile, the addressee of the declaration of human rights is the international system and the world community. For example, when Darbandi of this declaration says that no distinction should be made based on the political, judicial or international status of the country or territory to which a person belongs, whether it is independent or under the guardianship of another country or non-autonomous, or in terms of national integrity, be subject to any restrictions. Also, when it says in Article 14: Anyone who is under persecution has the right to seek asylum from other countries in order to be granted asylum, the addressee of this article is the global system, not the country where a person lives.

Third: The difference in the legal system

Citizenship rights are rights in the legal and civil system of the country; But human rights are rights that have been approved by the United Nations; Therefore, there may be differences and gaps between the two; For example, in Article 13, paragraph 1, it is stated: Everyone has the right to move and reside freely within the borders of any country. This is despite the fact that a country may not want citizens of other countries to travel to its country. Of course, it is always recommended to establish harmony between the declaration of human rights and domestic laws.

The difference between citizenship rights and urbanization rights

Citizenship rights are reciprocal rights that create responsibilities and rights for every citizen in relation to others; But the right to live in a city has two aspects: one, the city against the non-city and one, the city against the government.

Jurisprudence topics of citizenship rights

Citizenship and its rights in political jurisprudence can be defined and tracked in the following three chapters:

1) Civil rights of citizens

Civil rights mean rights such as the right to security, the protection of dignity, life, property and housing of individuals, or rights related to the preservation of human nature and breadth. Among the citizenship rights, perhaps the most important rights that everyone, especially those who are referred to as “guaranteed” in jurisprudence: (tourists) and religious and racial minorities should enjoy, rights such as the right to security, inviolability of dignity, the life, property and housing of individuals and the conduct of personal affairs; From every religion and creed, gender, race.

2) Political rights of citizens

Such as the right to freedom of expression and opinion, political participation, press and speech.

3) Social rights of citizens

Such as the right to work and secure a job and choose a legal means of livelihood, holding social gatherings, public and helping activities, (NGO), concerts, celebrations, leisure programs.

The most important issues of civil rights jurisprudence

We said that citizenship rights in its general sense include a wide field of civil, political, cultural-social and judicial rights of humans. In other words, it is a set of mutual rights between individuals and citizens, which is considered as the mutual rights of community members and managers of governance and management affairs (disciplinary, administrative, etc.), which is one of the important demands of governments and citizens towards each other.

In another category, citizenship rights include the individual and social responsibilities of citizens as well as the government’s responsibilities towards citizens;

Therefore, citizenship rights, in fact, express both some rights and some duties and responsibilities.

The most important jurisprudence issues of citizenship rights are as follows:

The right to life, health and quality of life;

The right to dignity and human equality;

The right to freedom and security of citizenship;

The right to participate in self-determination;

The right to competent administration and good planning;

The right to freedom of thought and expression;

Right to access information;

The right to access cyber space;

The right to privacy;

The right to organize, gather and march;

The right to citizenship, residence and freedom of movement;

The right to form and enjoy a family;

The right to a fair trial;

The right to enjoy a transparent and competitive economy;

The right to housing;

Right of ownership;

The right to employment and decent work;

The right to welfare and social security;

The right of access and cultural participation;

Right to education and research;

The right to a healthy environment and sustainable development;

The right to peace, security and national authority.

These are some of the most important issues in this jurisprudence.

Basics of citizenship jurisprudence

As mentioned, citizenship jurisprudence is a combination of jurisprudence, the science of principles, theology and law, and sociology. For this reason, in addition to the fact that it is related to jurisprudence, it requires different knowledge to revise its subject. The jurist of this knowledge should know how the principle of acquittal, which is used in the science of principles for doubting the obligation, can be cited for the principle of acquittal of a citizen from any crime except in the case of proof of crime.

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Theology is also used in this science. For example, should we consider the issue of justice before religion and in the chain of causes of rulings, or should we consider justice as a matter subject to Shari’ah? Also, the principle of justice that is mentioned in the word, how can it be used in social justice to negate any discrimination among citizens of any opinion? In law, many issues are highlighted, such as the right to life, which is used in citizenship jurisprudence to not exclude returning to religion in all cases.

Social sciences are important because the jurist sometimes needs to use them to solve the problems of the citizens and understand their challenges. For example, in traditional jurisprudence, prostitution is a crime; But in sociology, this is arranged on the basis of causes and contexts, and it is considered a disease that needs treatment. For this reason, citizen jurisprudence should deal with this problem in a practical and fundamental way and consider rulings that help treat such patients and decriminalize them, rather than issuing fatwas without paying attention to whether this fatwa solves the problem and the crime is removed or not?

According to Martyr Motahhari’s interpretation, there is logic in enjoining what is known and forbidding what is negated, and it is with scientific logic that this order can be implemented. This position of Prof. Motahhari has paid attention to the function and result of this duty. Contrary to the well-known position of jurists who consider obedience to this obligation in speaking, the teacher pays attention to the result of the ruling and considers the fulfillment of this obligation in ways that ultimately lead to the fight against corruption.

These foundations are different from the rules and principles of citizenship jurisprudence, and in fact, they are the presuppositions of the inferential examination that must be determined in another knowledge, and naturally, the majority of the scholars of that knowledge rule in it.

This note is a part of the electronic magazine “Fundamentals of Civil Rights Jurisprudence” which was produced in collaboration with the Ijtihad Network website.