نظريه منطقه الفراغ؛ به مثابه خاستگاه تشريعي احكام حكومتي

• The Theory of "the Discretionary Sphere of the Law"; a Legislative Origin of Governmental Decisions

Martyre Seyyed Muhammad Baqir al-Sadrʹs has used the so-called idea of "the discretionary sphere of the Law" or "manatiq al-faragh" in such a way that it has brought about misunderstandings, misinterpretations, and sometimes misuses in the area of the prerogatives of the guardianjurist. The central question of this paper is: what is the relationship between the mentioned theory and governmental decisions — which represent a true image of the guardian juristʹs prerogatives? In Martyre Sadrʹs account about this theory, the special prerogatives of the guardian jurist and Islamic government concerning non-obligatory decisions have been of special interest. But this idea does not necessarily mean that the divine injunctions, in as far as the contexts of legislation and affirmation are concerned, contradict legislation. Therefore, the guardianʹs prerogatives which are given special attention when discussing the idea of the discretionary sphere of the Law, cannot be considered as of a turning away from Islamic thought and acquisition of divine injunctions about everything, because the prerogatives of a Muslim ruler concerning issuing governmental decisions are not limited to no non- obligatory legal (sharʹi) injunctions; rather the guardian jurist can, according to a certain framework, issue governmental decisions in this domain