A member of the academic faculty of the Research Institute of Islamic Culture and Thought said: There is no institution in jurisprudence to design the relationship between the government and the people, and it is inferred from the set of rules. Now, if you look for freedom of speech in jurisprudence, it does not exist with this interpretation, so we do not have a coherent theory about freedom in jurisprudence.
Dr. Mahmoud Hekmatnia, a member of the scientific board of the Research Institute of Islamic Culture and Thought, on the 3rd of May, at the scientific meeting “The Scope and Legal Limits of Citizens’ Freedoms” held by the Institute of Contemporary Jurisprudence Studies, stated that when we talk about freedom, it should be clear what Nothing is freedom, he said: What kind of relationship does man have with God in the discussion of freedom from a theological and philosophical point of view? Our speech is independent of the relationship between the creator and the creature, and the meaning of freedom in our discussion is freedom as a killer of rights and how the government can regulate people’s behavior legally.
He added: There are several levels of discussion here; First, is the discussion of the legal philosophy of freedom, and second, the theory of freedom in law? So, one of the levels of discussion is philosophical, and philosophy is discussed by those who believe that we should have a rational analysis before the government wants to restrict behaviors, and rational analysis is the work of philosophy.
He stated that the other issue is the theories of rights, that is, he says that the rules of rights are constructed and not distinguished from rational rules, he added: We must get the evolution and change and perception of a human civilization from the category of freedom of rights, like what the fundamentalists said. have told the sources. That is, the jurist creates a term and with that concept, he adapts its examples in the Shari’ah.
Hekmatnia stated that in the legal titles we have behaviors that are called rights, sometimes social freedom and sometimes the same name has not been chosen for it. how does he analyze freedom; Some theories are similar to the opinion of our fundamentalists about rights, that is, they identify rights with works, and some say that we consider rights as elements that are made of a series of atoms, and these atoms together create a right, so we must first Know the legal atoms and analyze it.
Non-interference of the government for some interests
This Islamic law researcher stated: A detailed research has been done on this since 1920 and it has shown that 4 elements can be obtained from the analysis of these elements; Ability, immunity, freedom and demand. Demand means that I have a right and I demand it; Immunity means where the law can impose restrictions on a person, but immunity is granted, the reason for this can be the existence of expediency in intervention, not that the government has no right to intervene.
A member of the academic faculty of the Research Institute of Islamic Culture and Thought, stating that in legal systems, when we talk about freedom, it is not clear to talk about these atoms, and added: For example, people say that we have freedom of contract; This freedom means ability, but you named it the right to freedom. Therefore, in the analysis of rights, we must identify it. Therefore, necessarily, all the things that are expressed as freedom in the laws do not have the same meaning, for example, in the third chapter of the constitution, the rights of the nation are mentioned, but some people say why it did not say freedoms? Because the legal system does not necessarily interpret every right as freedom, and we lawyers have a duty to interpret it in the legal system.
Dr. Hekmatnia stated that some jurists consider Ta’zir as an expedient in the hands of the ruler and said: In the discussion of freedom of speech, we also say that freedom of expression is where there is expediency in freedom, even if it is expedient and corrupt; The discussion of the philosophy of freedom of expression is which expedient exists that neutralizes the corrupt. I have stated 17 philosophical theories here; For example, those who consider themselves realists believe that truth is formed in speech conflicts.
Freedom of speech prevents the rulers from slipping
Dr. Hekmatnia stated that some political theories believe that if there is no freedom of expression, the rulers are always on a slippery slope, adding: Freedom of expression, according to their interpretation, prevents this slippery slope and is a tool for the implementation of justice; In contrast to that, the theory of discouragement is raised, which means that when I see that I am being attacked by saying anything, I prefer not to say anything; Just like today’s situation of commanding good and forbidding evil, because we all think that if we give a warning, it will affect others; If the society moves in such a direction that some people know that the other is going wrong and they say to leave it and let the error go, that is because they dislike that person or group, it is a defect.
A member of the academic faculty of the Research Institute of Islamic Culture and Thought, stating that the purpose of enjoining good and forbidding evil is to bring the other party to perfection, said: If the other party does not have the necessary capacity, it is his weakness, so cultural work should develop the capacity of people. . Therefore, what we mean by freedom is the legal freedom of the legal system.
This university professor emphasized: In jurisprudence, there is no institution for designing the relationship between the government and the people, and it is inferred from the set of rules; Now, if you look for freedom of speech in jurisprudence, it does not exist with this interpretation, and it can be said that there is a government, and there are a series of preferred interests and a series of preferred corruptions. Let’s be reasonable. Therefore, we do not have a coherent theory about freedom in jurisprudence.
Can God’s decree limit freedom?
In the following, Ayatollah Mohammad Andalib Hamdani, the teacher of the external course of the seminary, criticized the material in a speech and stated that you have tried to explain the material in a fair, clear and concise manner, which is one of the advantages of this research, he said: What about Limiting limits such as aggression, harm, disruption of order, conflict with the moral values accepted by the society, you said, correct, but can God’s decree limit social freedoms and rights or not? We raise this debate in our own religious society, but sometimes this debate is outside the scope of the religious society. Basically, if God’s decree has a limit, what is your analysis?
He added: How God’s decree can limit a right and freedom must be interpreted; For example, regarding apostasy, you sometimes interpret it narrowly, as some jurists like Mr. Montazeri interpreted it narrowly, but sometimes it is interpreted broadly. Also, you said correctly about guidance and preaching. Hazrat Imam Hussain (a.s.) said on the day of Ashura when the enemies were cheering: listen to my words and do not cheer and let me fulfill your right, that is, the enemy also has the right to preach against Imam (a.s.). If we have a correct explanation of the discussion of enjoining good and forbidding evil and preaching and advice, we will be able to better explain the legal position of the discussion.
The teacher of the course outside the seminary stated that the narrations that rejected the tyranny of voting and called for consultation are not in your writing and stated: Also, the discussion of moral freedom, which is used a lot in the sayings of the Amir of the Faithful (PBUH), is freedom Of the shackles and chains mentioned in the Qur’an, can they not limit social freedom? In the article, you mentioned the works of the late Mohaghegh Esfahani, but the place of his treatise Haq and Haqm was empty at the beginning of Makasab. He believes that the truth is fixed and he has arranged his spiritual commonality and all his discussions around this issue.
Ayatollah Andalib Hamdani clarified: It is clear that what you mean in your words is the freedom of the opposition, otherwise it is the freedom of the supporters, which has no room for debate and exists naturally. In my opinion, arguing against the Prophetic and Alavi ways in this discussion is empty and you did not explain how they dealt with the opposition. You rightly spoke about restricting freedom, but if they ask you, all the arguments are about the fact that the government says that I stopped this freedom because it disrupts the order of freedom, but the opponents say that we are not looking for disruption, but we want to convey our message; In this case, who is the authority of diagnosis here? To be the promise of the season, is the government itself a criterion? It means the executive and judiciary or an institution whose duty is to defend the rights of the people and is not dependent on the government.
The professor of the seminary said: You said that one of the atoms of truth is the realization of truth; How can we expect the government to fulfill rights and at the same time put the criteria of recognition on the government? Does the constitution have a say in this field or should a reference be defined?