اعتبارسنجی اعمال قضایی حاکم اسلامی؛ مطالعه تطبیقی «کتابت حاکم بر قاضی» در فقه امامیه و عامه

 ∴ Introduction ∴ ‌
The legal landscape of Islamic jurisprudence (Fiqh) presents a nuanced and multifaceted approach to governance, particularly concerning the authority and actions of Islamic rulers. Among these, the concept of the "writing [Ketabat] of the Islamic ruler over the judge" holds a distinctive place. Rooted in both Shia and Sunni jurisprudence, this concept pertains to the Islamic ruler's capacity to influence judicial decisions, including acts such as pardoning or mitigating the punishments of those convicted by the courts. Despite its foundational presence in classical jurisprudential texts, contemporary legal systems in Islamic countries often lack explicit integration of these principles, resulting in a research gap that this study seeks to address. By utilizing a doctrinal approach and examining a broad spectrum of works by both Shia and Sunni jurists, this study aims to elucidate the nature of these judicial acts and explore their potential applications and validations within modern legal frameworks.
     The concept of the "writing of the ruler over the judge" has been sporadically discussed in jurisprudential literature, yet its application in contemporary legal systems remains ambiguous. This ambiguity is particularly evident in the legislative frameworks of Islamic countries, where the practice has not been clearly codified. However, practical instances, such as the practice in Iran where the leader exercises the power to pardon or reduce sentences, demonstrate an ongoing relevance and application of these principles. By systematically analyzing the historical and jurisprudential foundations of this practice, alongside the documented actions of key Islamic figures such as the Holy Prophet (peace be upon him) and Imam Ali (peace be upon him), this study aims to offer new insights and guidelines that could enhance judicial practices in Islamic countries.
‌ ∴ Research Question ∴ ‌
The primary research question guiding this study is: How can the concept of the "writing of the Islamic ruler over the judge," as understood in Shia and Sunni jurisprudence, be validated and integrated into contemporary legal systems of Islamic countries? This question addresses the core issue of aligning historical jurisprudential practices with modern judicial frameworks, aiming to bridge the gap between classical Islamic legal theory and current legal practices.
     Secondary questions include:
     What are the specific jurisprudential foundations and historical precedents for the "writing of the ruler over the judge" in Shia and Sunni traditions?
     How do current practices in Islamic countries, such as the issuance of pardons by the leader of Iran, align with or diverge from these jurisprudential foundations?
     What are the potential legal and procedural frameworks that could be developed to incorporate these practices into contemporary judicial systems?
‌ ∴ Research Hypothesis ∴ ‌
The hypothesis of this study is that the principles underlying the "writing of the Islamic ruler over the judge" in both Shia and Sunni jurisprudence can be systematically validated and adapted to fit within the legislative and judicial frameworks of contemporary Islamic countries. This adaptation could not only preserve the historical and religious integrity of these practices but also enhance the quality and fairness of judicial processes.
‌ ∴ Methodology & Framework, if Applicable ∴ ‌
This study adopts a doctrinal research methodology, primarily focusing on the analysis of primary and secondary legal sources within Islamic jurisprudence. The methodological framework encompasses several key components:
     Literature Review: An extensive review of classical and contemporary works by Shia and Sunni jurists will be conducted. This review will identify the foundational texts and key juristic opinions regarding the "writing of the ruler over the judge."
     Comparative Analysis: The study will employ a comparative approach to analyze the differences and similarities in how Shia and Sunni traditions address this concept. This will include examining historical practices, documented cases, and theoretical discussions.
     The combination of these methodological components aims to create a comprehensive understanding of the "writing of the Islamic ruler over the judge," bridging the historical jurisprudential theories with contemporary legal practices. The ultimate goal is to provide a detailed and actionable framework that Islamic countries can adopt to enhance their judicial systems in alignment with their religious and legal traditions.
‌ ∴ Results & Discussion ∴ ‌
This study meticulously explored the validation of judicial acts by the Islamic ruler, specifically the "writing [Ketabat] of the Islamic ruler over the judge," within the frameworks of Shia and Sunni jurisprudence. Through an extensive comparative analysis, several key findings emerged, shedding light on the theoretical underpinnings and practical implications of this jurisprudential concept.
     Firstly, the study revealed that both Shia and Sunni traditions recognize the hierarchical structure of judicial authority, where a higher authority, such as a city judge, can influence the decisions of a lower authority, such as a village judge. This concept extends to the Islamic ruler's ability to issue pardons or mitigate punishments, reflecting a broader principle of higher authority's dominance over lower authority in judicial matters. However, the explicit integration of this principle into contemporary legal systems of Islamic countries remains notably absent.
     In Shia jurisprudence, particularly within the legal system of Iran, the continuity of judicial guardianship is emphasized. The guardianship of the judge over the plaintiff and defendant continues under the overarching guardianship of the Islamic ruler. This continuity is crucial in validating the ruler's judicial acts, such as issuing pardons or authorizing Qisas (retributive justice). The necessity of the ruler's permission for executing certain judicial acts and the obligatory adherence to the ruler's directives underscore the significance of maintaining judicial independence while recognizing the ruler's authority. The validation model proposed here implies that judicial orders issued by the ruler retain their validity even after the ruler's death or dismissal, akin to the permanence of a judge's order over another judge.
     Contrastingly, the study highlighted that in matters of governmental authority, the cessation of the ruler's power could lead to the nullification of such orders, raising concerns about the implications for affected individuals. According to the theory of governmental jurisprudence, compensation for damages incurred due to judicial rulings is not accommodated, reflecting a limitation in addressing governance and public order issues.
     In Sunni jurisprudence, different schools of thought provide varied approaches to validating the ruler's writing over the judge. Maliki and Hanafi jurists generally accept the ruler's writing within the context of local authority, emphasizing mandatory adherence if the writing falls within the receiving judge's jurisdiction. Justice is not a prerequisite for the validity of such writings, as they do not consider the ruler's lack of justice (unjust behavior) as a cause for nullification. Shafi'i jurists also accept this concept, provided it is from a higher to a lower authority, while Hanbali jurists mandate adherence if the directive comes from a higher to a lower authority.
     The discussion highlighted that the judicial authority of the Islamic ruler, as accepted in both Shia and Sunni jurisprudence, revolves around the dominance of higher over lower authority and the obligation of appointed judges to follow the appointing authority or the Imam. This distinction between judicial and governmental authority is pivotal, emphasizing the need for separate clarifications regarding the rulings issued by the ruler in judicial contexts.
‌ ∴ Conclusion ∴ ‌
The comparative analysis of Shia and Sunni jurisprudence on the "writing of the Islamic ruler over the judge" underscores the nuanced understanding and application of judicial authority within Islamic legal traditions. The study elucidates the theoretical foundations and practical implications of this concept, emphasizing the importance of higher authority in judicial matters.
     In Shia jurisprudence, particularly within Iran's legal system, the continuity of judicial guardianship under the Islamic ruler's authority is crucial. This model ensures the validity of judicial acts, such as pardons and authorizations for Qisas, while maintaining the independence of judicial powers. The permanence of judicial orders, even after the ruler's death or dismissal, reflects the enduring nature of judicial authority.
     In Sunni jurisprudence, the acceptance of the ruler's writing varies across different schools. Maliki and Hanafi jurists emphasize local authority and mandatory adherence within the jurisdiction, while Shafi'i and Hanbali jurists recognize the hierarchical structure from higher to lower authority.
     The study concludes that the integration of the "writing of the ruler over the judge" into contemporary legal systems of Islamic countries requires careful consideration of the distinctions between judicial and governmental authority. Clear guidelines and frameworks are essential to validate and implement these judicial acts effectively, ensuring the alignment of historical jurisprudential principles with modern legal practices.
     By addressing these issues, the study provides a comprehensive understanding of the judicial authority of the Islamic ruler and offers practical insights for enhancing the quality and fairness of judicial processes in Islamic countries. This distinction between judicial and governmental authority is crucial for maintaining the integrity of legal systems and ensuring justice for all individuals within these frameworks.