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The Governance of the Jurist in Shi’ite Jurisprudence

THE LEVANT EXCLUSIVE — By Professor Abdulaziz A. Sachedina — The publication of the book on the “Evolution of the Institute of the Shi’ite Jurisitic Authority” by Dr. Haytham Mouzahem comes at a time when the question of marja’iya is under closer scrutiny for both its overdue reform and relevance for modern Shi’ite men and women. Whereas the juristic authority of a Shi’ite mujtahid is a rationally derived necessity for the continuation of the spiritual-moral guidance sought by the community, its classical form and management has raised serious questions about its ability to provide the critical guidance in the areas of practical ethics and applied jurisprudence in the day to day needs of the Shi’ites. Dr. Mouzahem’s study underscores the importance of this subject for average people who are searching to understand the importance attached to the office of marja’iya in the 21st century. The following pages capture the outline of the history of the marja’iya which Dr. Mouzahem has endeavored to cover admirably in this book. His style is straightforward and precise in giving his readers an authentic and reliable discussion of how the Twelver Shi’ite tradition has survived the vicissitudes of being a minority within the larger Umma, and the ability of its religious leadership to guide the community through different ages with a variety of challenges facing it. The timing of the publication of this study in the aftermath of the untimely death of the great leader Sayyid Muhammad Husayn Fadlallah for many modernly educated Shi’ites all over the world is perfect. The most original contribution of this volume is the discussion of the Lebanese Shi’ite scholarly views on the constitutional authority of the wilayat al-faqih, about which little has been written thus far. It is an opportune time for the Lebanese readers in particular to contemplate on the significance of having able leadership in the Shi’ite communities around the world to guide people in achieving their legitimate goals in peace and harmony with other communities.


INNOVATION OR CONTINUTAITON?

The idea that the Shiite jurist-theologian (faqih) can assume the all comprehensive authority, including the constitutional and juridical powers, that accrues to the theological Imam in a Twelver Shiite state pending the return of the twelfth and the last messianic leader, the Imam of the Age (sahib al-zaman), at the End of Time has appeared to many a scholar, both Muslim and Western, an innovation of a sort which deviates from the fundamental aspects of the theological-political doctrine of Imamate. The innovation, according to these scholars, appears to be in the extension of the Imam’s authority (wilaya) to a Shiite jurist-theologian in spite of the absence of any such provision in the theological doctrine of Imamate. The reason for this opinion, I believe, lies in the postulate that such an authority of a Shiite jurist-theologian can be derived only through an explicit designation (al-nass) by a divinely ordained leader, — the process which is acknowledged as the sole method by which the Imam’s authority in Shi`ism is established.

The theory of Imamate, it is important to bear in mind, once formulated during the eighth century did not go through any revisions that could have been prompted by certain developments in the political history of Twelver Shiite community in the subsequent periods. Thus, even when the temporal authority of the Shiite dynasties like the Buyids (10th-11th centuries) or the Safavids (16th century) were established, the theological doctrine of the Imamate of the twelve Imams remained in tact.

However, in the absence of the political authority of most of the Shiite Imams following the first Imam,Ali b. Abi Talib (d.40/661), the religious and social needs of the Shiite community very early on gave rise to the institution of the deputyship (niyaba, wikala) of the Imams. The proper place for the discussion of this institution was not in the realm of theology which dealt with usul al-din (fundamentals of the faith, such as the affirmation of the Unity of God, belief in the Justice of God, Prophecy, the Imamate and the Day of Judgement); rather, since delegation of the Imam’s authority in the form of deputyship was necessary in the performance of a number of religious duties covered under the rubric of al-takalif al-shariyya (religious-moral obligations derived on the authority of the revelation), it was discussed in the works dealing with jurisprudence.

The principle of wilayat al-faqih (the Authority of the Jurist), being the logical outcome of the Imam’s deputyship in the realm of religious practice, as a consequence, belongs to jurisprudence (fiqh), and not to ilm al-kalam (dialectical theology) where usul al-din are expounded. Although the underpinnings of the idea about the religious leadership (whether the divinely ordained prophecy and the Imamate, or the legally determined position of the juridical authority) were related to the general question of the theological doctrines of divine justice and divine purposes for human society, evidently the delegated authority of the jurist in the Shiite community was treated strictly in works of jurisprudence.

Historical Roots of the Wilayat al-faqih:

Shiism offers the modern world with a rare glimpse of the dynamics of religious ideology that embodies postulates about active divine intervention in human history to enable humanity to build an ideal public order. Shiite jurist-theologians, at different times in history, have undertaken to interpret the parameters of the divine intervention for the construction of a new society and polity. One of the major questions that has arisen in the minds of piety oriented Muslims has had to do with the existence of injustice in the society, and the obligation of the community in the face of that situation. The response to the question of community reaction to the perceived injustice has depended upon the current socio-political circumstances and has been conditioned by the precedents set by the Imams whose answers to similar situations are treated as binding precedents for their followers.

Historically the guidance of Shiite scholars, whether leading to radical political action or otherwise, turned on their interpretation of the two basic doctrines intrinsic to an authoritative perspective or world view that organizes the mundane existence of Shiite community. These two doctrines are the justice (al-`adl) of God and the leadership (al-imama) of righteous individuals to uphold and promulgate the rule of justice and equity. In the highly politicized world of early Islam there were numerous ideas and conceptions about God’s purpose on earth and leadership of human society. The swift conquest of vast territories and the ongoing process of supervising the conquests and administering the affairs of the conquered peoples not only demanded strong and astute leadership; it also required the creation of a system that would provide stability and prosperity. Central to this social, political, and economic activity was the promise of Islamic revelation that only through obedience to God will believers accomplish the creation of a just and equitable public order embodying the will of God.

The promise was based on the belief that God is just and truthful. The proof of divine justice was provided by His creating the rational faculty in human beings and sending revelation through the prophets to guide them toward the creation of the ethical world order. The indispensable connection between the divine guidance, and the creation of an ethical world order provided an ideological mandate for the interdependency between the religious and the political in Islam. It also pointed to some sort of divine intervention necessary in the creation of a just society. Consequently, the orientation of the Islamic belief system was towards envisioning the Prophet and his rightfully designated successors as representing God on earth – the God who deputized them to exercise divine authority to rule over humankind aright. In this way, the linkage between the divine deputization and the creation of the ideal public order became a salient feature of Islamic ideological discourse almost from the beginning. Accordingly, the basic religious focal point on the creation of just order and leadership, which can create and maintain it, dominates the world view of the Muslims, in general, and of the Shi`ite Muslims, in particular.

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The dispute over the question of rightful successor to the Prophet marked the permanent rupture in the unity of the community that would give rise to two distinct schools of thought in Islam, namely, Sunnism, the majority, and Shi`ism, the minority faction. The period that followed this first crisis and tension between the ideal and the real gradually accentuated the growth of discontent among all Muslims. Some were moved by profound religious conviction and deep moral purpose to seek solutions to the injustices which led to revolutions and rebellions as well as discussions and deliberations. This is reflected in the early Islamic fiqh (theology cum jurisprudence) literature that emerged toward the end of second/eighth century. This literature wove together the various threads of Islamic belief and practice.

The most important question that determined the political-religious direction followed by the community dealt with the limitations over the power of a Muslim authority in the state that ideally existed as a divinely approved necessity to promote justice and equity. In addition, the question determined the justifiable courses of action that the community of the faithful could take if the authority in power became unjust, thereby making the state evil. Responses to the above question were greatly influenced by the religious and ethical ideas prevalent among various Muslim factions in connection with the duty of obedience to an unjust ruler that caused disobedience to God. The activist solution to seek redress for wrongs committed by those in authority was by no means limited to the Shi`ites only; rather, dissatisfaction and dissension were widespread among all people.

By the time of the second crisis, the end of the manifest leadership of the Imams through the occultation of the twelfth and last Imam Muhammad al-Mahdi (A.D. 941), which affected the political jurisprudence of the Shiites, the notion of an armed struggle to oppose any nominally Muslim authority regarded as corrupt and degenerate was postponed indefinitely to the End of Time: the revolution would come in a future time of fulfillment. This belief in the messianic revolution to be launched by a divinely guided leader known as the Mahdi to establish the ideal order on earth is shared by all Muslims, although the term “Mahdi” has become associated more with the function of the last Imam of the Twelver Shiites. Furthermore, in Shiism, belief in the future coming of the messianic Imam has served a complex, seemingly paradoxical function. It has been the guiding doctrine behind both radical political posture, calling upon the Shiites to remain alert and prepared at all times to launch the revolution with the Mahdi who might appear at any time; and behind a quietist waiting for God’s decree, in almost fatalistic resignation, in the matter of the return of this Imam before the Day of Judgement. In both cases, the main problem was to determine the right course of action at a given time in social and political setting. The adoption of the radical or quietist posture depended upon the interpretation of conflicting traditions attributed to the Shi`ite leaders about the circumstances that justified revolutionary operation. Resolution about the prudent course of action, in turn, was contingent upon the agreement about and acknowledgement of the existence of an authority who could undertake to make the Imam’s will known to his followers.

The most important issue during this period for the Shiite community was the right guidance that was available to the believers even though the Imams were not invested with political authority and were living under the political power exercised by the de facto governments. With the termination of the theological Imamate in the tenth century when the last Imam went into occultation, the Shiites were faced with the issue of the continuation of this guidance. In the absence of the Imam’s political power (although he still had the right to demand obedience from his followers) his authority had been located in his ability to interpret divine revelation, both the Qur’an and the Prophet’s paradigmatic behavior, infallibly. The Imam’s elaboration of the revelation formed, in fact, part of the religious obligations binding on believers. Moreover, this interpretation was regarded as the right guidance needed by the people at all times. Consequently, during the prolonged absence of the last Imam, the Shi`ites sought that guidance in the authority that could assume the decisive responsibility of guiding the community to Imam’s will under critical situation.

However, delegation of the Imam’s authority to guide his followers to an individual who could assume both the religious authority and the political power of the Imam when there was no Imam to monitor the exercise of that authority was dangerous. This danger was perceived by the jurists, who took upon themselves to produce a coherent response to this situation in their works of jurisprudence in which the Imamite doctrine that the Imam is the only qualified leader was asserted. Pending the return of the Hidden Imam, the possibility of absolute claim to political power and religious authority resembling that of the Imam himself was ruled out. Nevertheless, the rational need to exercise authority in order to manage the affairs of the community was recognized and authoritatively legalized. Consequently, the duty of guiding the community was undertaken by the qualified Shiite jurists who, according to the Shiite belief, became the leaders of the community through a general designation of the Hidden Imam.

This development consolidated the authority of the Shiite jurists by initiating an unprecedented relationship between the believers and their religious scholars. It also generated a strong sense of devotion to the religious leaders in their position as the general deputies of the Imam after 941 A.D. Gradually, this sense of loyalty made it possible for the emergence of powerfully influential religious leadership of other than the theological Imams in the Shiite community.

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Legitimation of the Authority of the Jurist in Shi`ite Jurisprudence:

From its inception Shiite thought has given a central position to the question of religious leadership in its ideology. The question has assumed critical importance during the absence of the theological Imamate. This is reflected in the debate among the Shiites regarding the theological propriety of the religious scholars to assume the leadership of the Shiite community as the specifically designated deputies of the Hidden Imam. Regardless of the importance attached to the continuation of religious-moral guidance the Shiites needed to survive under the de facto governments of their times, it was not just for anyone to assume the function of guiding the community.

As in the case of the theological Imamate, which was established through a clear designation by the divinely ordained authority of the Prophet or the previous Imam, the Shi`ites expected some kind of authorization from the Imam himself to institute the deputyship of a jurist to guarantee the availability of authoritative Islamic guidance. But in the absence of special designation during the Complete Occultation no realization of this prerequisite was possible. This issue of the proper designation of leadership was discussed, and exegetically resolved, in the works of jurisprudence where assuming deputyship on behalf of the Imam became a prerequisite in the performance of certain public functions, like, for instance, administration of justice. The concrete historical circumstances required that jurists make a distinction between “power” and “authority,” and acknowledge that both the investiture of authority and the assumption of political power were necessary for the administration of justice.

However, the assumption of both the authority and the power of the Imam without specific deputization to guarantee the Imam’s confidence in that individual, as pointed out earlier, was deemed as dangerous by the jurists themselves. The exercise of absolute authority without divine protection in the form of infallibility that the Shiite Imam enjoyed as a successor of the Prophet rendered government by anyone beside the Imam inevitably corrupt. This attitude towards contemporary governments can be discerned in the Shiite jurisprudence in which these jurists responded to the critical question related to the nature of the Imam’s deputyship while asserting the theological Imamate of the infallible Imam and ruling out the possibility of absolute claim to political power and authority resembling that of the Imam himself. Nevertheless, the rational need to manage the affairs of the community in its total existence was recognized and judicial decisions were made to legitimate exercise of Hidden Imam’s authority, excluding his political power. The establishment of the Twelver Shiite dynasties like those of the Buyids (A.D. 945-1055), the Safavids (A.D. 1501-1786) who converted Iran to Shiism, the Zands (1750-1794), the Qajars (1794-1925) and the Pahlavis (1925-1979) during the occultation did not change the basic doctrine of the Imamate. According to this doctrine the twelfth Imam was the only legitimate ruler of the Muslim community and that he would return at the End of Time to establish the Islamic public order. Nonetheless, the jurists, living under the contemporary “unjust” governments, had conceived a profile of a just Shi`ite ruler, however temporary and fallible, who could, in the interim, follow the Qur’anic mandate of creating a public order that would “enjoin the good and forbid the evil.”

With the establishment of the Shiite temporal power the Shiite jurists individually responded to specific political situation created by this new situation in the political history of the community. There was a lack of any definite organization or a strict uniformity in their implicit opinions about the emerging Shiite political power. The Shiite jurists during this formative period of Twelver Shiite thought (ninth-twelfth centuries), although often living under some sort of court protection (especially under the Shiite dynasty of the Buyids) continued to be private individuals as they are today. Although less willing than their Sunnite counterparts to relax the limits of Islamic authority or to encourage obedience to the unjust and tyrannical governments, Shiite jurists were themselves engaged in rationalization of and accommodation to their historical circumstances. These responses to the existing political order reflect the tensions within the Shiite political jurisprudence created not only by the Complete Occultation of the Imam, but also by intellectual interaction between the Shiite and Sunnite scholars. The occultation of the Imam and the minority status of the Shiites made it possible, and in some instances imperative, for them to be quite pragmatic and realistic in their contacts with contemporary de facto governments and in the formulation of their judicial opinions about them, more so if the de facto rulers happened to be professing Shi`ites.

It is for this reason that each work of jurisprudence is abundantly documented by quotations from the Qur’an and the Prophetic practice as well as the critical evaluation of the opinions of precedent-setting jurists. The judicial decisions and the supporting rational and traditional evidence reveal that these decisions were made in intimate dialogue with specific situations in the Muslim polity at the time.

As the functional imams the Shiite jurists became the interpreters and the custodians of the Shiite creed, including the theory of the spiritual and temporal authority of the Imams. The Buyid rise to political power, although an event without a precedent in the post-occultation political history of Shiism, had absolutely no impact on the central doctrine of the Imamate, and, accordingly, no attempts were made in theological writings to explain this political development in the context of the constitutional authority of the infallible Imam. The Shiite jurisprudence proceeded to extrapolate judicial decisions with twofold attitude: first, the continuation of the socio-religious structure of the community was not dependent upon the temporal authority of the Shiite dynasty like the Buyid; second, the consolidation of the deputyship of the theologian-jurist was essential for the survival of the Shiite ideology during the occultation. This twofold attitude allowed the jurists to regard it permissible for a qualified member of their class to substitute for the Imam or his specifically designated deputy in almost all cases in which religious obligations with public ramifications were required to be performed. In other words, the jurists of the classical age regarded deputyship as a sort of trust on behalf of the Hidden Imam, making it legally permissible for any of them to act as a trustee of the Imam among his followers to undertake all those functions that the Imam as the head of the community was entitled to undertake himself, or would have delegated to someone qualified to represent him. The underlying juridical principle in this legitimation process was the rationally derived rule about the general interest of the community that authorized the jurists to undertake functions of political nature as functional imams.

However, to generate the loyalty of the Shiites the marja al-taqlid had to demonstrate objectively, through the combination of sound belief, knowledge, and character that he could function as the guardian of the community. Moreover, his reputation as the most learned was established through his publications on the religious subjects, and the training of disciples. His character was established by his piety which qualified him, among other things, to receive the religiously ordained taxes for distribution among the needy.

With the introduction of modernization, that is a modern system of administration, modern education, and modern values, the reforms introduced in the legal and governmental systems through constitutionalism represented the attempts at modernization of the traditional Islamic social and political institutions in the Iranian domains, which generated an intense debate between different factions belonging to a spectrum of ideologies. The constitutionalist idea confronted the relative cultural harmony in the traditional order under the last Qajar monarchs. Consequently, modernization in Iran, however gradual and at times mismanaged, created tensions in the socio-political life of the Shiite community. In addition, the uneasy and at times hostile encounter between the traditional Islamic culture and the modern Western values led to the undermining of the effectiveness of the traditional Shiite leadership in dealing with complex socio-political developments of the time. The Shiites, seeking the guidance from their functional imams in the area of socio-political relations in the modern situation exerted enormous pressure on their marja al-taqlid to demonstrate the feasibility of traditional Islamic responses under changed expectations.

In the early part of the twentieth century the position of the most prominent among the Shiite jurists became increasingly confined to strictly religious matters, a development which forced their withdrawal from the socio-political setting. The consequence of this thinking was that both the leadership and the general body of the Shiites had been conditioned to accept that, doctrinally as well as functionally, Shiite jurists could not assume any political leadership, especially in a modern nation state. The religious response to this attitude of political resignation among the Shiite leadership was the reassertion of the reinterpreted and developed principle of the “Authority of the Jurist” (wilayat al-faqih) in the celebrated Najaf lectures of Ayatullah Khumayni delivered between January 21 and February 8, 1970.

The principle of wilayat al-faqih offered the theological sanction by which to legally consolidate the position of a Shiite jurist as the “executor of the affairs of the Shiites” in a Shiite state in modern times. This consolidation of a qualified jurist’s position was substantiated by comparing the authority exercised by a de facto ruler like a Qajar or Pahlavi shah assuming and exercising the discretionary authority of the twelfth Imam in a Shiite political order, and that exercised by a well-qualified jurist as a de facto functional imam during the occultation. Such comparison, however restrained and subtle, can be discerned in the Ayatullah Khumayni’s exposition of the principle of wilayat al-faqih.

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Wilayat al-faqih since the Islamic Revolution in Iran:

The elaboration of the doctrine of wilayat al-faqih has frequently been determined in the history of Shi`ism by the political context and even by the changing outlook and application of the jurists themselves. Ayatullah Khumayni’s own treatment of the principle of wilayat al-faqih corroborates this changing perspective and there is a noticeable and significant difference between his pre-revolution and post-revolution position on the controversial aspect of the political authority of the jurist, namely, whether it is all-comprehensive and thus absolute like that of the infallible Imam or not.

Khumayni’s earliest public statement regarding the “Authority of the Jurist” appeared in the work entitled: Kashf-i asrar. The book is a detailed response to the anti-religious tract which includes critical statements about the claim to the political power by a mujtahid. The presentation of the concept of wilayat al-faqih in Kashf-i asrar is on cautious, traditional lines found in the works of prominent jurists of the Qajar and post-Qajar era and is enunciated with an observation that the doctrine has been from the very beginning a controversial matter among the jurists who have disagreed among themselves on the “fundamental question whether [a jurist] possesses the wilayat, and the extent of wilayat, the scope of its jurisdiction which happens to be a matter related to the juristic derivatives.” Furthermore, he makes it clear that the fact that the jurists possess the hukumat (the authority to administer justice) and the wilayat at this time does not mean that they are at the same time “the king, the vizier, the military personnel,” and so on. Rather, Khumayni proposes the establishment of an assembly made up of the qualified, god-fearing jurists in the place of the corrupt assembly (majlis) under the Shah. Such a body should, in turn, proceed to elect a just ruler (sultan `adil) who would not be averse to the divine laws and would not rule with injustice and tyranny. Similarly, if the Consultative Assembly (majlis-i shura) is composed of the pious jurists or is kept under their supervision, as required by the Constitution, then the state would achieve its goal of preserving justice and welfare. In other words, Khumayni’s proposition does not rule out the possibility of the existence of a just ruler as the executive arm of legitimately established Majlis of the jurists. His concluding observation in this connection deals with the peaceful role played by the mujtahids in the Islamic world. They, Khumayni affirms, did not oppose the independent status of their countries even when they encountered the unjust conduct of the rulers and recognized the unjust system they perpetrated. In view of this peaceful mission pursued by the mujtahids, when they speak about the extent of their right to administer justice (hukumat) or to exercise their wilayat, they do not go beyond a few items properly specified in the jurisprudence, including “[the wilayat] to issue judicial decisions, to adjudicate, and to intervene in protecting the wealth of a minor, or legally incapable person. They never bring the matter of exercising political authority (hukumat) among these items, nor do they speak about political power (saltanat), in spite of their being fully aware that except for the law of God all other legal systems [obtained from Europe] are invalid and ill-suited [for the Muslim peoples]. However, they respect these very ill-suited laws and do not reject them, and believe that they should be tolerated so long as the system does not improve.”

This hesitant posture in Kashf-i asrar changed to the more activist stance in the celebrated Najaf lectures of 1970 regarding the authority of the jurist in the Shi`ite nation that culminated in the present doctrine of wilayat al-faqih. The title given to these lectures, namely, al-Hukumat al-islamiyya, suggests the transformation of the principle of wilayat al-faqih to a form of government necessitating the subordination of political power (saltana) to the divine norms elaborated in the Islamic jurisprudence. In other words, the Islamic government is the one in which the religious-moral authority of the jurists prevails in all the branches of a modern government, namely, legislative, executive, and judicial. The lectures, accordingly, outline the urgency on the part of the jurists to assume positions of responsibility in actualizing the goals of the divine governance for the humanity.

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However, since the broad interpretation of the principle had implications for the doctrine of the theological Imamate, and in some ways, as argued by those who were suspicious of such an arrogation of the infallible Imam’s authority on the part of the jurist, the ideological confusion over the power of the jurist have beset Iran since the revolution. The ideological problem stems from the constitutional principle of sovereignty of the people as exercised through their elective representatives in the modern state and the principle of religiously invested sovereignty which if implemented absolutely through the office of the wali al-faqih can render the constitution invalid. In other words, some kind of tension or even contradiction exists in an imperfect compromise worked out between the principle of religiously ordained absolute sovereignty of the person holding the wilaya and the constitutionally founded sovereignty by the people.

The confusion and the problems that existed in the post-revolution Iran in the matter of exercise of relative powers of different branches of government, especially the legislative and the executive, can be traced back to new political system under the wilayat al-faqih. It is, however, paradoxical that there was no attempt made in Iran to undertake serious substantial and theoretical treatment of this central principle until the issuance of the January 7, 1988 fatwa of Ayatullah Khumayni. Even in the centers of Shi`ite learning, the religious establishment, where there existed misgivings about the claim to all-comprehensive wilaya of the jurist in the light of their perceived role as the protectors of the people’s sovereignty and independence, there was an understandable silence on the issue because, according to the official position on the subject defined by Khumayni in the most explicit terms: “Opposition to wilayat-i faqih is denying (attempting to refute) Imams and Islam.” Unquestionably, the triumph of the revolution under the religious leadership was assumed, at least by those in the government, as the government of the deputy of the Hidden Imam, the functional imam, Ayatullah Khumayni.

This clarification of the scope and meaning of wilayat al-faqih in 1988 had to await the crisis created by the failure of the government since the revolution to resolve important problems of society and economy in accordance with Islamic laws and criteria. Furthermore, unresolved questions about a number of legislative measures caused the reappearance of the ever present debate between those religious scholars who take the prohibition of human prerogative to legislate in the narrow and literal sense, and those who, on the contrary, permit further legislation on the grounds that the traditional jurisprudence as the series of guidelines is insufficiently exhaustive in its content for the solution of complex problems faced by modern society. The question centered on the Islamic propriety, that is, the legal validity, of measures passed by the parliament and the important figures in the government. Indirectly, the question cast doubt on the assertion of the religious class in the modern age that Islam as a way of life has its own distinctive solution for the main problems of humanity, and it challenged the ability of the jurists to provide coherent responses to concrete questions like redistribution of land for public benefit, or intervention in the relations between the employer and the employee to attain some measure of justice for which the traditional jurisprudence had no solutions.

The dichotomy between human legislation in the modern parliament and the Islamic propriety to undertake such an activity was apparently the origin for the existence of the Council of Guardians which is formally appointed to approve the legislation as being in conformity with the Shari`a. On several occasions the parliament has encountered opposition from the Council of the Guardians for passing measures contrary to the traditional jurisprudence. Consequently, a number of matters dealing with urban land, ecological protection bill, nationalization of foreign trade, and so on were held in suspense because of the unresolved differences of opinion between the Majlis and the Council of the Guardians. This persistent deadlock in determining the scope of the power of the state to intervene in matters that assured some measure of justice in the society served as the background to Khumayni’s fatwa asserting the supremacy of the Islamic state under the wilayat al-faqih in preserving the welfare of its citizens.

The fatwa was issued in the form of a letter to the President `Ali Khamnei whose Friday sermon had touched upon a sensitive matter in the Prophet Muhammad’s mission on earth. Apparently, Khamnei had concluded that the Prophet’s function was to deliver the religious message and creation of a state was not within the scope of his primary mission. In response to this conclusion, Khumayni took up to publish his response whose key part after the introductory formalities was as follows:

It appears from your excellency’s statements at the Friday prayer that you do not regard government to be equivalent to the absolute guardianship (wilayat-i mutlaqa) which was bestowed on the most noble Prophet (peace be upon him and his progeny) by God, and which is the most important part of the divine ordinances, having precedence over all secondary ordinances (ahkam-i fariyya). Your interpretation of what I have said that the government is empowered to act only within the framework of the existing [secondary] divine ordinances [preserved in the Sharia] runs entirely counter to what I have in fact said. Were the powers of government to lie only within the framework of secondary divine decrees, the designation of the divine government and of absolute deputed guardianship (wilayat-i mutlaqa-yi mufawwada) to the Prophet of Islam (peace be upon him and his progeny) would have been in occurrence entirely without meaning and content. Let me refer to some of the consequences of such a view — consequences which no one could accept. For example, the laying of roads that necessitates the confiscation of houses or of the land on which they stand is not provided for within the framework of the secondary divine ordinances. Military conscription, and the compulsory dispatch of soldiers to the front, forbidding the import or export of foreign currency, or of various kinds of goods, the prohibition of hoarding, customs duties, taxation, the prohibition of exorbitant pricing, price regulation, the prohibition of narcotics and addiction, with the exception of alcoholic drinks, prohibiting the bearing of all kinds of arms, and hundreds of similar measures, none of these, according to your interpretation, are among the powers of the state. I must point out, the government which is a branch of the absolute guardianship of the Prophet of God, is among the primary ordinances of Islam, and has precedence over all secondary ordinances such as prayer, fasting, and pilgrimage.”

The last statement (italicized) in the above-quoted text is the key part of the fatwa which was open to whole variety of interpretations, both in Iran and in the West among the scholars of Middle Eastern studies. Apparent sense of Khumayni’s declaration suggests that political considerations could override tenets of the Sharia. This is the sense in which most Western scholars have taken the statement to purport and it has support in the political history of Islam when those in power, whether the Sunnite caliphs or the de facto sultans, did in fact overrule the dictates of the Sharia norms for political expediencies.

However, when examined in the context of the Shiite rational theology, the statement is the reassertion of a fundamental belief among the Shiites and the Mutazilites, namely, the essential interrelationship between the divinely ordained absolute, infallible religious leadership (the Prophethood or the Imamate) and the creation of the divinely sanctioned order. The existence of the government under the Prophet or the Imams is regarded as fundamental prerequisite for the performance of the secondary divine ordinances elaborated in theibadat (God-human relationship) and muamalat (human-human relationship) sections of the Sharia. Accordingly, the existence and consolidation of the government is rendered among the primary divinely mandated institutions that has priority over the secondary ordinances such as prayers, fasting, and so on in the Sharia. In other words, the primary expression of Islamic belief system is not the conventionally seen as fundamental pillars of Islamic faith; but, rather the comprehensive relationship of the Muslim community to legitimately constituted authority in Islamic public order. This is the meaning of the cardinal doctrine of wilaya, and it is the sole criterion for judging true faith in Shiism.

Thus, there is no evidence of doctrinal breach in the fatwa when the Islamic government is declared as all-comprehensive to decide all matters pertaining to the welfare of the people, even overriding the secondary ordinances, if necessary. However, investing this deputed absolute wilaya of the Prophet and the Imams (protected by infallibility [isma] against committing acts of injustices) to the government headed by the jurist (regarded as being in possession of sound belief, knowledge, and character [adala]) raises the ever present suspicion in the Shi`ite juridical writings about the legitimacy of anyone claiming the absolute, all-powerful authority of the infallible leader during the occultation.

More indicative of this transformation to all-powerful wilayat al-faqih was Khumayni’s statement (in the same fatwa, following the key declaration) that the Islamic “government can unilaterally abrogate legal (shari) contracts it has concluded with its own people whenever the contract is contrary to the interest of the country and of Islam.” According to this, the government under the “Guardian Jurist” could exercise unrestricted power to abolish matters that have been traditionally part of the muamalat (inter-personal, human-human relationship) section of the jurisprudence in the undefined “interest of the country and Islam.” In other words, the constitution that served as the protector of people’s sovereignty was virtually brought under the absolute power of the Islamic leadership under the aegis of wilayat al-faqih,– the only entity qualified to define the parameters of the “interest of the country and Islam.” The Islamic government, hence, was empowered to:

“prevent any act performed as part of one’s relationship to God (`ibadi) or otherwise in nature, the fulfillment of which runs counter to the interests of Islam, as long as it continues to be harmful to Islam. For example, it can temporarily forbid the performance of annual pilgrimage (hajj), one of the most important duties decreed by God, whenever a pilgrimage is contrary to the welfare of Islam. What is previously being said or is now being said on the subject [of the wilayat al-faqih] derives from an inadequate knowledge of the wilayat-i mutlaqa (absolute guardianship).”

What was in fact said at that time was that the entire jurisprudence in its classical formulations would be rendered null and void because of the powers that the Islamic government could claim in the interest of the country and Islam.

Khumayni’s innovative exposition of wilayat al-faqih in this fatwa was intended to provide solutions to the practical socio-economic problems at the legal-theoretical level by empowering the Majlis which, since the establishment of the Islamic republic, had faced with the fundamental question about the propriety of the Majlis in enactment of the laws for a modern nation state. Furthermore, it was meant to confer on the Majlis the religious legitimacy to enable the execution of its decisions as being in conformity with the “interests of Islam and society.” This was predictably reflected in Khamnei’s interpretation of Khumayni’s fatwa when in its support he declared that the jurist who holds the wilayat al-faqih should be obeyed because his command is “the command of God. and, it is, therefore, religiously incumbent to obey (wajibu’l-itaat) him.” In addition, Khamnei asserted that the wali-yi faqih was the only source of religious authorization not only for the Majlis but also for all branches of government, and even the constitution of the Islamic Republic “which provides the criteria and framework for all legislation derives its consideration (itibar) from being accepted and confirmed by the wali-yi faqih…..The validity of all organs of government depends on the wali-yi faqih. To oppose it [government] is haram (prohibited) and a major sin, because it is being instituted by the wali-yi faqih, with the permission of God.”

Such absolute interpretation of the fatwa by the then President of Iran connoted the elevation of the marjaal-taqlid (the most learned juridical authority in the Shiite community) to the absolute ruler of the Shiites whose unrestricted authority and pleasure allowed the governmental institutions to function. However, it also marked the permanent breach between the office of the marja, which also included the limited wilaya (“guardianship”) traditionally conceived in the jurisprudence, and the virtually unrestricted wilaya expounded by Khumayni in his position as one of the marja` and promulgated in the modern constitution of Iran.

Such implications became explicit when Khumayni died in 1989, leaving his position as marjato be filled by other leading jurists in the country. But his position as the wali-yi faqih, in theory at least, could not be assumed except by another marja of similar status in learning and piety. To accommodate this vacuum in the constitutionally ratified leadership of the Shiite polity the Council of Guardians were forced to abandon a well-established tradition in Shiite Islam, namely, the recognition of the juridical excellences of the mujtahid before declaring one’s allegiance to that authority as the marjaal-taqlid and wali al-faqih. There was no provision in the traditionally expounded principle of wilayat al-faqih, even in its limited form, for a non-mujtahid to assume the position of the “Guardian Jurist.” It was only through a modern constitutional provision that Hujjatu’l-islamAli Khamnei could be elevated to the position of ayatullah. However, the assumption of the position of wali-yi faqih, similar to the Ayatullah Khumayni without the qualifications required in a mujtahid, was not possible without circumventing the well-stated prerequisites. This was probably achieved by using the more political, and even Sunnite in connotation, title of wali-yi amr-i muslimin (the person in whom authority to manage the affairs of the Muslims has been invested) for Ayatullah Khamnei, as the successor to the religious leadership in the Islamic Republic of Iran. Accordingly, whereas traditionally loyalty and devotion to the religious leaders in Shi`ism was always the consequence of one’s personal consent, now loyalty to the Ayatullah Khamnei, as the holder of the office of the wali al-faqih is prescribed by the constitution of Iran.

In conclusion, it is probably correct to maintain that the constitutionalization of wilayat al-faqih, in its broader interpretation, was made possible because of the leadership of the Ayatullah Khumayni, which combined the authority of the marjaal-taqlid and the wali al-faqih. However, after his death, the wilayat al-faqih has been assumed by the Council of Guardians, who, for political reasons, have restricted it to the political dimension of this position, similar to that assumed by the wali al-‘amr of the Muslims, while retaining the juridical dimension of it within the jurisdiction of the Council, until further progression in the political history of the Shiite community could accommodate another wali al-mutlaq (the absolute guardian) in Iran. Moreover, the present status of the principle of the wilayat al-faqih underscores the culmination of its gradual particularization in the Iranian Shiite context, because it has ceased to be of relevance beyond its geographical boundaries. In all probability, its relevance in Iran has been overshadowed by the complex practical problems faced by the nation confronted by more immediate concerns of reinstating itself as a credible member of the modern international order than being regarded as the hope of “the downtrodden” for the creation of an international Muslim order under the wilayat al-faqih (Authority of the Jurist). Nevertheless, the religious experience of the Shiites has nurtured uneasiness in the event of injustices inflicted by those in power. As such, it will be hardly surprising to witness another revolution of “the downtrodden” under their religious leaders in the context of messianic aspiration of the Shi`ites for the rule of justice and equity on earth.

sachedina
Professor Abdulaziz Sachedina is the Frances Myers Ball (Chair) Professor of Religious Studies at the University of Virginia. He is the author of many books and studies, the most prominent are:

“The Just Ruler in Shi’ite Islam: The Comprehensive Authority of the Jurist in Imamite Jurisprudence Oxford University Press Inc (USA), 1998.

“The Islamic Roots of Democratic Pluralism Oxford University Press Inc (USA), 2000”; “Islamic Biomedical Ethics Oxford University Press (USA), 2009’.

“Islamic messianism: the idea of Mahdī in twelver Shīʻism, State University of New York, 1981”.

Human Rights and the Conflict of Cultures co-authored with David Little and John Kelsay: South Carolina Press (USA), 1988”.

“Prolegomena to the Qur’an” being trans of Abu al-Qasim al-Khui’s Al-Bayan Oxford University Press (USA), 1988”

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