Guardianship of the Islamic Jurist

The Guardianship of the Islamic Jurist, also called the Governance of the Jurist (Persian: ولایت فقیه‎, romanized: Velâyat-e Faqih; Arabic: ولاية الفقيه‎, romanized: Wilāyat al-Faqīh), is a post-Occultation theory in Shia Islam which holds that Islam gives a faqīh (Islamic jurist) custodianship over people. Ulama supporting the theory disagree over how encompassing custodianship should be. One interpretation – Limited Guardianship of the Islamic Jurist – holds that guardianship should be limited to non-litigious matters (al-omour al-hesbiah)[1] including religious endowments (Waqf)[2] judicial matters[3] and the property for which no specific person is responsible. Another – Absolute Guardianship of the Islamic Jurist – maintains that Guardianship should include all issues for which ruler in the absence of Imams have responsibility, including governance of the country. The idea of guardianship as rule was advanced by the Ayatollah Ruhollah Khomeini in a series of lectures in 1970 and now forms the basis of the Constitution of the Islamic Republic of Iran. The constitution of Iran calls for a faqih, or Vali-ye faqih (Guardian Jurist), to serve as the Supreme Leader of the government.[4][5] In the context of Iran, Guardianship of the Islamic Jurist is often referred to as "rule by the jurisprudent", or "rule of the Islamic jurist".

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Theory

Wilayat conveys several intricate meanings which are deeply tied to Twelver history. Morphologically, it is derived from the Arabic wilayah, the verbal noun of waliyan: to be near and to have power over something. Technically, wilayat means rule, supremacy or sovereignty. In another sense, wilayat means friendship, loyalty, or guardianship (see Wali).[6]

The doctrinal basis of the Guardianship of the Islamic Jurist comes at least in part from the hadith where Islamic Prophet Muhammad is reputed to have said "The ulama are the inheritors of the prophets" (Arabic: العلماء ورثة الأنبياء‎).[7] The issue was mentioned by the earliest Shi'i mujtahids such as al-Shaykh Al-Mufid (948–1022), and enforced for a while by Muhaqqiq Karaki during the era of Tahmasp I (1524–1576). However, according to John Esposito in The Oxford Dictionary of Islam, Morteza Ansari (~1781–1864) was the first Islamic scholar to advance the theory of the Guardianship of the Islamic Jurist.[8]

There is a wide spectrum of ideas about Wilayat-Faqih among Ja'fari scholars and it is not limited to two ideas mentioned above. The spectrum starts from restricting the scope of the doctrine to guardian-less matters (الامور الحسبیه) in Islamic society, such as unattended children, and ends in the idea of absolute authority (الولایه المطلقه) over all public matters.

Two kinds of Wilayah can be understood. The first kind mentioned in various chapters of Shia fiqh discusses Wilayah over the dead and Wilayah over those who resemble the dead, such as insane (سفيه), absentee (غائب), poor (فقير), etc. For example, verse 33 of Sura 17[9][10] refers to an inheritor of oppressed slain. This type of Wilayah cannot be applied to a society because none of mentioned conditions hold for the majority of a society. The second kind of Wilayah which appears in principles of faith and kalam discusses Wilayah over sane people. The verse 55 of Sura 5[11][12] implies the second type of Wilayah in Quran. The Guardianship of the Islamic Jurist can only be argued in terms of this second notion of Wilayah. Recognition of Wilayat-e Faqih is not similar to emulation of a marja but it should be acknowledged by intellectual reason.

Limited Guardianship of the Islamic Jurist

Traditionally Shi'i jurists have tended to this interpretation, leaving secular power for Shi'i kings called "Sultans." They should defend the territory against the non-Shi'a.

For example, according to Iranian scholar Ervand Abrahamian, in centuries of debate among Shi'i scholars, none have "ever explicitly contended that monarchies per se were illegitimate or that the senior clergy had the authority to control the state."[13] Most scholars viewed the 'ulama's main responsibilities (i.e. their guardianship) as being:

  • to study the law based on the Qur'an, Sunnah and the teachings of the Twelve Imams.
  • to use reason
  • to update these laws;
  • issue pronouncements on new problems;
  • adjudicate in legal disputes; and
  • distribute the Khums contributions to worthy widows, orphans, seminary students, and indigent male descendants of the Prophet.[14]

According to one of the leading Ayatollahs, Sayyid Sistani, Guardianship of the Islamic Jurist

means every jurisprudent (Faqih) has wilayah (guardianship) over non-litigious affairs. Non-litigious affairs are technically called "al-omour al-hesbiah". As for general affairs with which social order is linked, wilayah of a Faqih and enforcement of wilayah depend on certain conditions one of which is popularity of acceptability of Faqih among majority of momeneen.[1]

Notwithstanding his indirect but decisive role in most major Iraqi political decisions, Grand Ayatollah Ali Sistani has often been identified with the quietist school of thought, which seeks to keep religion out of the political sphere until the return of the Imam of the Age.[15][16]

Similarly, Sistani's mentor the Late Grand Ayatollah Sayyid Abul Qasim al-Musawi al-Khoei is deemed to be one of the most vocal modern day jurists against the innate nature of Wilayat al-Faqih. Al-Khoei restricted the scope of Wilayat al-Faqih to the jurist's authority in terms of wakalah alone while dismissing the notion of the jurist inheriting the intrinsic authority of the Infallibles.

In Al Tanqih fi Sharh al `Urwatil Wuthqa, Kitab al Ijtihad wa al Taqlid, Pg #360 he states:

إن الولاية لم تثبت للفقيه في عصر الغيبة بدليل، وإنما هي مختصة بالنبي والأئمة المعصومين (عليهم السلام)، بل الثابت حسبما يستفاد من الروايات أمران: نفوذ قضائه، وحجّية فتواه. وليس له التصرف في أموال القصّر أو غير ذلك مما هو من شؤون الولاية، إلاّ في الأمر الحسبي، فإن الفقيه له الولاية في ذلك لا بالمعنى المدعى

“Wilayah for the faqih in the age of ghaybah is not approved by any evidence whatsoever - and it's only the prerogative of the Messenger and the Imams peace be upon them all, rather the established fact according to the narrations lies in two affairs: Him exercising the role of a judge and his fatwa being a proof - and he holds no authority over the property of a child or others which is from the affairs of wilayah except in the hisbi sense (wakalah), ie. the faqih holds wilayah in this sense not in the sense of being the claimant (al mudda`ee).”

Absolute Guardianship of the Islamic Jurist

Supporters of absolute guardianship cite verse 62 of sura 24[17] and believe that collective affairs (امر جامع) are under the Guardianship of the Islamic Jurist at most. Those scholars who believe in the necessity of establishing an Islamic state say that within the boundary of public affairs the guardianship must be absolute, otherwise the state can not govern the country.

The idea of the Absolute Guardianship of the Islamic Jurist gained influence with the success of Ayatollah Khomeini's leadership of the Iranian Revolution. Earlier, Khomeini had expanded on it in his book Islamic Government: Governance of the Jurist. He presented the concept as necessary to protect and preserve Islam during the Occultation of the Imam. According to Khomeini, society should be governed by those who are the most knowledgeable about Islamic law (Shari'ah).

Velayat-e Faqih in the Iranian constitution

According to the constitution of Iran, Islamic republic is defined as a state ruled by Islamic jurists (Fuqaha). In accordance with verse 21/105 of the Koran and on the basis of two principles of the trusteeship and the permanent Imamate, it is counted as a function of jurists. Also it is explained that only those jurists are entitled to rule who are upright, pious and committed experts on Islam. Also those who are informed of the demands of the times and known as God-fearing, brave and qualified for leadership. Also they must hold the religious office of source of imitation and be permitted to deliver independent judgments on general principles (fatwas). Chapter one of the constitution, where fundamental principles are expressed, states that continual ejtehad by qualified jurists is a principle in Islamic government. Likewise Article 5 expresses that an individual jurist who is endowed with all necessary qualities, or a council of jurists, has the right to rule in the Islamic republic as long as the Twelfth Imam remains in occultation. Also article 57 and 110 show the exact meaning of the ruling jurist's power. According to article 57, the jurist has supervision over three other branches. According to article 110 these supervisory powers are as follow:

  • Jurist appoints the jurists to the guardian council
  • He appoints the highest judicial authority in the country
  • He holds supreme command over the armed forces by exercising some functions
  • He signs the certificate of appointment of the president
  • In the national interest, he can dismiss the president
  • On the recommendation of the supreme courts, he grants amnesty

These powers belong to the Supreme Leader as a Vali-e-faqih.[18]

Religious and political positions

According to the Constitution of the Islamic Republic of Iran, during the occultation of the Wali al-'Asr, the Guardianship and the Leadership of the Ummah (Persian: ولایت امر و امامت امت‎) devolve upon the just and pious jurist, who is fully aware of the circumstances of his age, courageous, resourceful, and possessed of administrative ability. Also, in another article states that the powers of government in the Islamic Republic of Iran are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the Absolute Guardianship and the Leadership of the Ummah (Persian: ولایت مطلقه امر و امامت امت‎) that refers to the Supreme Leader of Iran.[19]

History

"Limited Guardianship of the Islamic Jurist" has been known since Sheikh Mofid, When Ijtihad among the Shi'a emerged in 10th century CE (4th century AH). On the basis of this jurists have judged and take Khoms.

Absolute Velayat-e faqih was probably first introduced in the Fiqh of Ja'far al-Sadiq in the famous text book Javaher-ol-Kalaam (جواهر الکلام). Later, Ayatollah Molla Mohammad Mahdee Naraqi[20] of Iran published a paper advocating a modest level of political actions for Islamic leaders – limited velayat-e-faqih.

By the time of Iranian Constitutional Revolution (انقلاب مشروطه), Ayatollah Sheikh Fazlollah Nouri customized this theory to match with Iranian Majles of National Council, which was removed when he was executed by those opposed to his idea of Islamic government. Nevertheless, an extensive "guardianship" was given to clerics. (see: Iranian Constitution of 1906)

Ayatullah Khomeini in 1970 gave a series of lectures that became a book Hokumat-e Islami: Valiyat-e faqih (Islamic Government) arguing that monarchy was "un-Islamic". In a true Islamic state those holding government posts should have knowledge of Sharia, as well as having intelligence and administrative ability.

The theory is also a key ideology of the Lebanon-based Hezbollah.

Velayat-e faqih in practice
See also: Setad

Clerics in politics of Iran

Iran has become the first nation-state in history to apply absolute velayat-e faqih in government. Guardianship of the Islamic Jurist in the Islamic Republic of Iran is represented not only in the Supreme Leader, who must be a cleric, but in other leading bodies, particularly the Assembly of Experts whose members must be clerics, the Council of Guardians, half of whom must be clerics, and the courts. Friday prayer leaders are appointed by the Supreme Leader as well.[21]

Criticism

Opposition among scholars

Quietist scholars of Qom and Najaf hawzas criticise Iranian system of governance, while the Big Four, among them Grand Ayatollah Ali al-Sistani, oppose the concept actively.[22][23] In fact, a large segment of the clerical Shia population does not believe in the theory of velayat-e-faqih and thinks the clergy should stay away from politics.[24] The majority of Shi'a accepted the late Grand Ayatollah Seyyed Hossein Borujerdi (1875–1961) as the most prominent scholar. It was only after his death that Ayatollah Ruhollah Khomeini published his first political and social treatise in which he explicitly called for active participation in political matters. Throughout his life, Ayatollah Hosain Borujerdi, who was a quietist and therefore refrained from taking political stances, forbid his student Khomeini from engaging in non-religious matters.

Persecuted scholars in Iran

Twelver Shia Muslims have to follow one of several different marjas in the matters of fiqh. However, Ayatollahs hold different opinions in some of the matters, especially those considering the system of rule during the absence of Imams. Some disapproved of the concept to establish an Islamic rule on Earth before the arrival of Imam Mahdi. Others disagree with the policies implemented by Ayatollah Khomeini, and/or his successor, Ali Khamenei. Impartial list of Ayatollahs that were and are being persecuted in post-1979 Iran for their opposition to the ruling regime:[25]

  • Ayatollah Sadeq Rouhani who denounced Ayatollah Montazeri, and the appointment of Montazeri by the Assembly of Experts to succeed Khomeini. Rouhani later wrote an open-letter denouncing former president Rafsanjani for the government policies that went against Shia historical and his (Sadeq Rouhani's) fatwas. These include: permitting chess as halal and permissible music, which historical Shia fatwas and Rouhani's forbid but are allowed in modern-day Iran, and Tatbir (sword self-flagellation) or Zanjeerzani (self flagellation with chains) during Day of Ashura, which Rouhani (and other Ayatollahs) approve of but are banned in modern-day Iran, put under house arrest.
  • Ayatollah Hassan Tabatabaei Qomi, put under house arrest for voicing his opposition to the Iran–Iraq War and denouncing the Supreme Leader Ali Khamenei, killed.
  • Ayatollah Taqi Tabatabaei Qomi, driven into exile for denouncing Ali Khamenei.
  • Ayatollah Kazem Shariatmadari, for his alleged role in a coup to topple the government in 1982 and denouncing the Supreme Leader Ruhollah Khomeini, put under house arrest, tortured and killed.
  • Ayatollah Reza al-Sadr, privately the brother of Musa al-Sadr, put under house arrest for praying over the body of Ayatollah Kazem Shariatmadari, killed.
  • Ayatollah Mohammad Taher Shubayr Khaghani, for denouncing Ruhollah Khomeini, killed. His family was driven into exile.
  • Ayatollah Hossein Ali Montazeri, for denouncing Ruhollah Khomeini and then Ali Khamenei, under house arrest.
  • Ayatollah Ya'sub al-Din Rastgari, for his book criticizing Sunni Islam and Shia-Sunni "unity". Work resulted in riots in Iran's Sunni areas in 1994. He also denounced Ali Khamenei, imprisoned on-and-off since 1996, tortured and put under house arrest.
  • Ayatollah Mohammad al-Husayni al-Shirazi, for his opposition to the Iran–Iraq War and denouncing Ruhollah Khomeini and then Ali Khamenei, put under house arrest, later killed.
  • Ayatollah Sadiq Hussaini Shirazi, for denouncing Ali Khamenei, under house arrest.
  • Ayatollah Mujtaba Hussaini Shirazi, for denouncing Ali Khamenei, driven into exile.
  • Ayatollah Mohammed Reza Shirazi, for denouncing Ali Khamenei, killed.
  • Ayatollah Hossein Kazemeyni Boroujerdi, for denouncing Ali Khamenei, imprisoned on-and-off since 1994.
  • Ayatollah Yousef Saanei, for denouncing Ali Khamenei, under house arrest.
  • Ayatollah Mousa Shubairi Zanjani, opposes the concept of the GotIJ, under house arrest.
  • Ayatollah Ahmad Khonsari, for denouncing Ruhollah Khomeini, his student, put under house arrest.
  • Ayatollah Mahmoud Sistani, privately the brother of Ayatollah Ali al-Sistani, killed for his opposition to the GotIJ.
  • Ayatollah Mohammad Sadeqi Tehrani, for denouncing Ali Khamenei, under house arrest.
  • Ayatollah Yasubedin Rastegar Jooybari, for denouncing Ali Khamenei, under house arrest.
  • Hojatoleslam Ahmad Khomeini, privately the son of Ruhollah Khomeini, killed for denouncing Ali Khamenei.[26][27]

Response to criticism
  • There is a wide spectrum of ideas about Wilayat-Faqih among Jafari scholars and it is not limited to two ideas mentioned above. The spectrum starts from restricting the scope of the doctrine to guardian-less matters (الامور الحسبیه) in Islamic society, such as unattended children, and ends in the idea of absolute authority (الولایه المطلقه) over all public matters.
  • Two kinds of Wilayah can be understood. The first kind mentioned in various chapters of Fiqh of Shia discusses Wilayah over the dead and Wilayah over whom resembles dead, such as insane (سفيه), absentee (غائب), poor (فقير), etc. For example, verse 33 of Sura 17[9] refers to an inheritor of oppressed slain. This type of Wilayah can not be applied to a society because none of mentioned conditions hold for the majority of a society. The second kind of Wilayah which appears in principles of faith and kalam discusses Wilayah over sane people. The verse 55 of Sura 5[11] implies the second type of Wilayah in Quran. The Guardianship of the Islamic Jurist can only be argued in terms of this second notion of Wilayah. Recognition of Wilayat-Faqih is not similar to emulation of a marja but it should be acknowledged by one's reason.
  • Owqaf (اوقاف) is better to be translated as endowments.[2]
  • None of the Jafari scholars believe in unlimited guardianship but some of them believe in absolute (مطلقه) one. They refer to the verse 62 of sura 24[17] and believe that "common matters" (امر جامع) are subject to Wilayah of Faqih. Those scholars who believe in the necessity of establishing an Islamic state say that within the boundary of public affairs the Wilayah must be absolute, otherwise the state can not govern the country. See religious democracy.

Books
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See also

References
  1. "Archived copy". Archived from the original on 13 September 2006. Retrieved 23 August 2006.CS1 maint: archived copy as title (link)
  2. "Archived copy". Archived from the original on 22 July 2011. Retrieved 8 December 2006.CS1 maint: archived copy as title (link)
  3. Interview: Hamid al-Bayati (May 2003) Archived 9 December 2006 at the Wayback Machine
  4. Taking Stock of a Quarter Century of the Islamic Republic of Iran Archived 27 February 2008 at the Wayback Machine, Wilfried Buchta, Harvard Law School, June 2005, p.5–6
  5. Constitution of the Islamic Republic of Iran, section 8 Archived 23 November 2010 at the Wayback Machine Article 109 states an essential qualification of "the Leader" is "scholarship, as required for performing the functions of mufti in different fields of fiqh"
  6. Ahmad Moussavi, The Theory of Wilayat-i Faqih
  7. Chapter 14 Archived 29 September 2007 at the Wayback Machine
  8. Esposito, John, "Ansari, Murtada." Archived 7 April 2014 at the Wayback Machine The Oxford Dictionary of Islam, (2003). Found in Oxford Islamic Studies Online
  9. "Surat Al-'Isra' [17:33] – The Noble Qur'an – القرآن الكريم". Archived from the original on 2 April 2015. Retrieved 31 March 2015.
  10. "Quran Surah Al-Israa ( Verse 33 )". Archived from the original on 27 January 2018. Retrieved 26 January 2018.
  11. "Surat Al-Ma'idah [5:55] – The Noble Qur'an – القرآن الكريم". Archived from the original on 28 March 2015. Retrieved 31 March 2015.
  12. "Quran Surah Al-Maaida ( Verse 55 )". Archived from the original on 27 January 2018. Retrieved 26 January 2018.
  13. Khomeinism : Essays on the Islamic Republic by Ervand Abrahamian c1993. (Professor of History at Baruch College, in the City University of New York, p. 19
  14. Khomeinism : Essays on the Islamic Republic by Ervand Abrahamian c1993. (Professor of History at Baruch College, in the City University of New York
  15. "The New York Times > International > Middle East > Politics: Shiites in Iraq Say Government Will Be Secular". Archived from the original on 6 October 2014. Retrieved 19 February 2017.
  16. "Iraqi Sheik Struggles for Votes, And Against Religious Tradition". Archived from the original on 17 January 2016. Retrieved 31 March 2015.
  17. "Cmje". Archived from the original on 28 November 2008. Retrieved 31 March 2015.
  18. Asghar schirazi et al., pp. 12–13
  19. Constitution of Iran Archived 21 August 2018 at the Wayback Machine Unofficial English translation hosted at University of Bern, Switzerland (with good summaries)
  20. "Biography". Archived from the original on 21 September 2006. Retrieved 18 October 2006.
  21. Wright, The Last Revolution, 2000, p.15–16
  22. Dueling Ayatollahs Sistani Khamenei Shiite Iran Iraq Archived 2 February 2019 at the Wayback Machine al-monitor.com
  23. Shia split: Sistani and Khamenei clash over Iraq's future Archived 2 February 2019 at the Wayback Machine alaraby.co.uk
  24. The Widening Rift Among Iran's Clerics Archived 2 February 2019 at the Wayback Machine nytimes.com
  25. New Vision Foundation. Ali Daroogar. Ayatollahs against tyranny: Men who stood against injustice & religious exploitation. 5 March 2015. Wayback Machine.
  26. Robert Tait (21 July 2009). "Grandson of Ayatollah Khomeini 'leaves Iran to avoid presidential inauguration'". TheGuardian. Archived from the original on 9 January 2019. Retrieved 9 January 2019.
  27. "Archived copy". Archived from the original on 9 January 2019. Retrieved 9 January 2019.CS1 maint: archived copy as title (link)

Further reading
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