Guardianship of the Islamic Jurists

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For other uses, see Vilayat-e Faqih.

Guardianship of the Jurist or Providence of the Jurist (Arabic: ولاية الفقيه, Wilayat al Faqih) is a post-Age-of-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 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 Jurist" - maintains that Guardianship should include all issues for which Prophet of Islam and Shi'a Imam 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 jurist is often referred to as "rule by the jurisprudent," or "rule of the Islamic jurist".

Theory[edit]

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 Guardianship of the Jurists comes at least in part from the hadith where Muhammad is reputed to have said "The ulama are the inheritors of the prophets" (Arabic: العلماء ورثة الأنبياء‎).[7] Although 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)[citation needed], according to John Esposito in The Oxford Dictionary of Islam, Morteza Ansari (~1781-1864) was the first Islamic scholar to advance the theory of Guardianship of the Jurists.[8]

There is a wide spectrum of ideas about Guardianship of the Jurists among Ja'fari scholars ranging from guardian-less activities (الأمور الحسبية) in Islamic society, such as unattended children, to absolute authority (الولاية المطلقة) in all public matters.

Two types of guardianship can be understood. The first type of is mentioned in various chapters of Shi'i fiqh. It discusses guardianship over the dead and over others in need of guardianship, such as the insane (سفيه), absentee (غائب), poor (فقير), etc. For example verse 33 of Surah 17 [9] refers to authority of heir of oppressed slain. This type of guardianship can not be applied to a society because none of the mentioned characteristics apply to human society.

The second type of guardianship which appears in principles of faith and kalam discusses guardianship over sagacious and wise people. The verse 55 of Surah 5[10] implies the second type in Quran. The Guardianship of the Jurists can be understood from this second type only. Believing Guardianship of the Jurists is not the matter of following a marja but should be understood by reason and needs intellectual reason.

Limited guardianship of the Islamic Jurists[edit]

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."[11] 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.[12]

According to one of the leading Ayatollahs, Sayyid Ali Husaini al-Sistani, Guardianship of the Jurists

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.[13][14]

Ayatullah Khu`i [rah] in his book 'rejects' Wilayat al-Faqih by saying:

أن الولاية لم تثبت للفقيه في عصر الغيبة بدليل وانما هي مختصة بالنبي والائمة عليهم السلام، بل الثابت حسبما تستفاد من الروايات أمران: نفوذ قضائه وحجية فتواه، وليس له التصرف في مال القصر أو غيره مما هو من شئون الولاية إلا في الامر الحسبي

"ولایت در زمان غیبت با هیچ دلیلی برای فقیهان اثبات نمی‌شود. ولایت تنها اختصاص به پیامبر وائمه دارد. فقها نه تنها در امور عامه ولایت ندارند، بلکه در امور حسبیه هم ولایت شرعی ندارند."

In the time of Ghayba there is absolutely no evidence that proves the Wilayah of the Fuqahah. Wilayah is only the prerogative of the Prophet and Imams. The Fuqahah not only don't have Wilayah in general affairs, but they also do not have any legal Wilayah in non-litigious affairs.
—Al-Tanqeeh fi Sharha urwatul wusqa of Al-Khoei by Mirza Ali Gharvi Tabraizi, Page#424[15]

Absolute guardianship of Islamic Jurists[edit]

Supporters of absolute guardianship cite verse 62 of sura 24[16] and believe that collective affairs (امر جامع) are under Guardianship of the Jurists 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.[citation needed]

The idea of the absolute guardianship of the 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 Imam. According to Khomeini, society should be governed by those who are the most knowledgeable about Islamic law (Shari'ah).

History[edit]

"Limited Guardianship of the Islamic Jurist" has been known since Sheikh Mofid, When Ijtihad among 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 Jafari in the famous text book Javaher-ol-Kalaam (جواهر الکلام). Later, Ayatollah Molla Mohammad Mahdee Naraqi[17] 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 "unIslamic". In a true Islamic state those holding government posts should have knowledge of Sharia, and the country's ruler should be a faqih who "surpasses all others in knowledge" of Islamic law and justice[18] - known as a marja` - as well as having intelligence and administrative ability.

This theory was put into action as part of Iran's Islamic Revolution. But generally before then, by the time of Ayatollah Naraqi it was first produced and introduced into Iran's royal law allowing Iranian ayatollahs to make sure that Islamic laws impacted the general laws of Iran.[citation needed]

Welayat Faqih in practice[edit]

Clerics in politics of Iran[edit]

Iran has become the first nation-state in history to apply absolute Welayat Faqih in government. "Guardianship" of the faqih 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.[19]

Opposition[edit]

Shia Muslims may follow, or emulate, one of several different marjas. in the personal matters. But they are required to follow the orders of Wali e Faqih in social matters or the matters that are concerned with the general well being of the Muslims. Other marjas are also required to follow this order. However some of the Ayatollahs who had a difference of opinion registered their opposition in some of the matters.

These include:

  • 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 his (Sadeq Rouhani's) fatwas. These include permitting chess and halal and permissible music, which Rouhani forbids but are allowed in Iran, and extreme mortification practices or the so-called Qamazani (sword self flaggelation) or Zanjeerzani (self flagellation with chains) during ashura, which Rouhani approves of but are banned in Iran.

Other controversies that lead to an ayatollah being put under house arrest for their alleged role in anti Islamic Republic activities.

Criticism[edit]

The term "mullahcracy" is sometimes used by detractors to describe the Guardian Council, or the Islamic Republican system in general.[20] The word is "mullah," a title given to all scholars of Islam,[21] suffixed with "-cracy," denoting a form a government.[22]

The level of control of Islamic scholars has even been challenged by some Islamic scholars themselves like Grand Ayatollah Hossein Montazeri and Ayatollah Mohamed Hossein Kazemini Borujerdi though the recent criticisms seem to be toward the military and secret police.[citation needed]

Response to criticism[edit]

  • 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 guardian-less activities (الامور الحسبیه) in Islamic society, such as unattended children, and ends to absolute authority (الولایه المطلقه) in all public matters.
  • Two types of Wilayah can be understood. The first type of Wilayah which is 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 Sora 17[9] refers to authority of heir of oppressed slain. This type of Wilayah can not be applied to a society because none of mentioned characteristics apply to human society. The second type of Wilayah which appears in principles of faith and kalam discusses Wilayah over sagacious and wise people. The verse 55 of Sora 5[10] implies the second type of Wilayah in Quran. The guardianship of jurisprudence can be understood from this second type of Wilayah only. Believing Wilayat-Faqih is not the matter of following a marja but it should be understood by reason and needs intellectual reason. This will guide us toward the concept of Wilayah of Fiqh or guardianship of jurisprudence which is essence of Wilayah of Faqih and should be discussed elsewhere.
  • Owqaf (اوقاف) is better to be translated as endowments.[2]
  • None of the Jafari scholars believe in unlimited guardianship but some of them believe absolute (مطلقه) one. They refer to the verse 62 of sora 24[16] and believe that collective affairs (امر جامع) are under Wilayah of Faqih at most. Those scholars who believe in necessity of establishing 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
  • The majority of Shi'a accepted the late grand Ayatollah Hosain Borujerdi (1875–1961) as Marja'-e-Taqlid. It was only after his death that Ayatollah Ruhollah Khomeini published his first political and social notice in which he invited all people to rise for Allah. This was due to the fact of his believing on Wilayah of Ayatollah Hosain Borujerdi.
  • Nobody believes that the Constitution of Islamic Republic of Iran is the best implementation in the framework of Wilayat-Faqih. In fact its chapter XIV has been entitled "The Revision of the Constitution" and it revised one time yet.[23] Also it is a good idea to separate the theory and practice and then discuss around them.

Books[edit]

See also[edit]

References[edit]

  1. ^ a b [1]
  2. ^ a b http://english.awqaf.ir/
  3. ^ Interview: Hamid al-Bayati (May 2003)
  4. ^ Taking Stock of a Quarter Century of the Islamic Republic of Iran, Wilfried Buchta, Harvard Law School, June 2005, p.5-6
  5. ^ Constitution of the Islamic Republic of Iran, section 8 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
  8. ^ Esposito, John, "Ansari, Murtada." The Oxford Dictionary of Islam, (2003). Found in Oxford Islamic Studies Online
  9. ^ a b Quran.com Al 'Isra 17:33
  10. ^ a b Quran.com Al Maa'idah 5:55
  11. ^ 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
  12. ^ Khomeinism : Essays on the Islamic Republic by Ervand Abrahamian c1993. (Professor of History at Baruch College, in the City University of New York
  13. ^ The New York Times > International > Middle East > Politics: Shiites in Iraq Say Government Will Be Secular
  14. ^ Iraqi Sheik Struggles for Votes, And Against Religious Tradition (washingtonpost.com)
  15. ^ Al-Tanqeeh fi Sharha urwatul wusqa of Al-Khoei by Mirza Ali Gharvi Tabraizi - Page number 424التنقیح فی شرح العروه الوثقی، الاجتهاد والتقلید، آیت‌الله خویی، تقریرات از میرزا علی غروی تبریزی؛ قم، ص424
  16. ^ a b USC-MSA Compendium of Muslim Texts
  17. ^ Biography
  18. ^ Islam and Revolution, p. 59.
  19. ^ Wright, The Last Revolution, c2000 p.15-6
  20. ^ Pooya Dayanim on Iran on National Review Online
  21. ^ WordNet - Search for "mullah."[dead link]
  22. ^ Australian National Dictionary Center - -cracy.
  23. ^ http://mellat.majlis.ir/archive/CONSTITUTION/ENGLISH.HTM

Further reading[edit]

External links[edit]