Guardianship of the Islamic Jurist
Principlist groups Monarchist groups Monarchists Defunct The Guardianship of the Islamic Jurist (Persian: ولایت فقیه, romanized: Velâyat-e Faqih, also Velayat-e Faghih; Arabic: وِلاَيَةُ ٱلْفَقِيهِ, romanized: Wilāyat al-Faqīh) is a concept in Twelver Shia Islamic law which holds that until the reappearance of the "infallible Imam" (sometime before Judgement Day), the religious and social affairs of the Muslim world should be administered by righteous Shi'i jurists (Faqīh).
This version of guardianship now forms the basis of the Constitution of the Islamic Republic of Iran, which calls for a Guardian Jurist (Vali-ye Faqih, Arabic: وَلِيُّةُ فَقِيهٌ, romanized: Waliy Faqīh), to serve as the Supreme Leader of that country.
[9] There is disagreement over how widely supported Khomeini's doctrine is; that is, whether "the absolute authority and guardianship" of a high-ranking Islamic jurist is "universally accepted amongst all Shi’a theories of governance" and forms "a central pillar of Imami [Shi'i] political thought" (Ahmed Vaezi and Taqi Yazdi),[10] or whether there is no consensus in favor of the model of the Islamic Republic of Iran, neither among the public in Iran (Alireza Nader, David E Thaler, and S. R. Bohandy),[11] nor among most religious leaders in the leading centers of Shia thought,[12] such as Qom and Najaf (Ali Mamouri).
Historians believe that Shi'i jurists "responded by developing the idea" of the "occultation",[37] whereby the 12th Imam was still alive but had "been withdrawn by God from the eyes of people" to protect his life until conditions were ripe for his reappearance.
[17] For many centuries, according to at least two historians (Moojan Momen, Ervand Abrahamian), Shia jurists have tended to stick to one of three approaches to the state: cooperated with it, trying to influence policies by becoming active in politics, or most commonly, remaining aloof from it.
According to Hamid Algar, (a convert to Islam and supporter of Ruhollah Khomeini), under the Safavids, the general deputyship "occasionally was interpreted to include all the prerogatives of rule that in principle had belonged to the imams, but no special emphasis was placed on this."
[57]: 127 [note 9] But along with this doctrinal power came political, economic and social power -- control by the ulama over activities left to the government in modern states — the clergy "directly collected and dispersed" the zakat and khums taxes, had "huge" waqf mortmains (religious foundations) as well as personal properties, "controlled most of the dispensing of justice", were "the primary educators, oversaw social welfare, and were frequently courted and even paid by rulers"[59][60] — but meant that as the nineteenth century progressed "important ulama" and their allies in the bazaar (the traditional commercial and banking sector) came into conflict with the secular authorities, specifically the shah.
[66] But in his 1970 book he argued that Faqih should get involved in politics not just in special situations, but that they must rule the state and society, and that monarchy or any other sort of non-Faqih government are "systems of unbelief ... all traces" of which it is the duty of Muslims to "destroy".
[85] [note 14] As his supporters finalized a new post-revolutionary constitution and it became clear religious dignitaries (and specifically Khomeini) very much were going to rule, it came as shock to moderate and secular Muslims who had been within the fold of his broad movement, but by then he had solidified his hold on power.
[80][3] Following the overthrow of the Shah by the Iranian Revolution, a modified form of Khomeini's doctrine was incorporated into the Constitution of Islamic Republic of Iran,[87] adopted by referendum on 2 and 3 December 1979.
[111] In 1988 and 89, shortly before and after Khomeini's death, significant changes were made to the constitution and the concept of Wilāyat al-Faqīh,[90] increasing the power of the Supreme Leader but reducing the scholarly qualifications needed for any new one.
[90] Consequently, after Khomeini died, the Assembly of Experts amended the constitution to remove scholarly seniority from the qualifications of the leader, accommodating the appointment of a "mid-ranking" but loyal cleric (Ali Khamenei), to be the new Faqih/Leader.
The current Supreme Leader, Ali Khamenei (age 85),[127] is thought to have taken some pain "to ensure that after his death Iran maintains an anti-American line and regime clerics continues to have "control of important state institutions".
To this end, he has initiated a "massive purge" of "all but the most reliable and obedient members" of the political class, and worked to eliminate the government's generous consumer subsidies that while very popular drain the treasury.
At the minimal end, scholars At the other extreme of the jurisprudence spectrum, is As of 2011, (at least according to authors Alireza Nader, David E. Thaler and S. R. Bohandy), those in Iran who believe in velayat-e faqih tend to fall into one of three categories listed below (the first and last roughly matching the two categories above, plus a middle view between the other two): Traditionally Shi'i jurists have tended to this interpretation, and for most Muslims wilayat al-faqih "meant no more than legal guardianship of senior clerics over those deemed incapable of looking after their own interests — minors, widows, and the insane"[139] (known as ‘mawla alayh’, one who is need of a guardian).
For example, according to Iranian historian 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.
In an early work, Kashf al-Asrar, (Secrets Revealed, published in the 1940s), Khomeini had made ambiguous statements, arguing that “the state must be administered with the divine law, which defines the interests of the country and the people, and this cannot be achieved without clerical supervision (nezarat-e rouhanı)”,[145] but had not called for Jurists to rule or for them to replace monarchs -- "we do not say that government must be in the hands of the faqih".
[146][66] He had also asserted that the practical "power of the mujtaheds" (i.e. faqih who have sufficient learning to conduct independent reasoning, known as Ijtihad), excludes the government and includes only simple matters such as legal rulings, religious judgments, and intervention to protect the property of minors and the weak.
[172] Despite providing hadith and intellectual proofs for absolute wilayat al-faqih, Mesbah Yazdi also argues that the idea of rule of the jurist is a principle of religion that believers must accept on faith [taqlid] -- because of its "special character", it is, "in a sense", an issue "among the subjects pertaining to prophethood and Imamate",[173] (and so outside the bounds of understanding from individual study).
[note 27] The idea that rule by religious dignitaries is a mistake because government should be kept separate from religion, (according to Mesbah Yazdi), comes from medieval Europe where "monarchs had to submit to and obey" the Catholic Pope.
The one who had the most developed network of disciples and former students was the very old Ayatollah Abu al-Qasim al-Khoei (born in 1899), an Iranian Azeri whose great influence reached from Lebanon (the spiritual leader of the Hizbullah, Sheikh Fadallah) ... to Afghanistan .... Al-Khoei did not leave Najaf during the war between Iran and Iraq and always rejected the concept of velayat-e faqih ....[111]According to Ali Mamouri, writing in 2013, the Islamic Republic of Iran, "has never been able to establish a stable and harmonious relationship between the Shiite seminaries of Qom and Najaf".
"Most" of the "spiritual references", aka marjaʿ, in Qom (at least in 2013) do not supporting the regime's position on velayat-e faqih, even though it has led to a number of them being placed under house arrest and barred "from expressing their views and ideas or continuing their teaching and religious duties".
It has been suggested (by scholar Mirjam Künkler) that the courts existence, size and scope can be explained by the unique problem that dissident clerics pose for the principle of velāyat-e faqih — that opposition forces lacking religious cachet and knowledge of the intricacies Islamic law would not.
In the words of Al-Shaykh Al-Mufid: سلطان الإسلام المنصوب من قبل الله تعالى، وهم أئمة الهدى من آل محمد عليهم السلام “The Islamic Ruler is he who is appointed divinely by the Almighty Allah and they are the Imams of Guidance from the Progeny of Muhammad, peace be upon them all.”[211]One of the most senior scholars in Shia Islam, reportedly the leading Marja' in Najaf and a former student of Ayatollah Abu al-Qasim al-Khoei[212] is Ali al-Husayni al-Sistani.
al-Sistani in his own advanced lectures of dars al-kharij (i.e. the highest level of theological education related to jurisprudence in the form of lectures, beyond the limited boundaries of textbooks) in the Shi'i seminary of Najaf summing up his opinion regarding Wilayat al-Faqih stated:فليس الطاغوت عبارة عن السلاطين و الأمراء كما قيل, إذ لم يكن في زمن النبي (ص) في جزيرة العرب سلطان و أمير حتى يقال بأنه القدر المتيقن منه من يحكم بالجور او ما ينسب إليه الحكم كالأصنام, مضافا إلى انه لم يكن للطاغوط قوة تنفيذية "al-Taghut (a term that is specifically used to denounce everything that is worshiped instead or besides Allah) is not an expression concerning kings or governors as stated by some (i.e. Khomeini[219]), since kings and governors did not exist during the times of the Apostle until it can be said to the extent of certainty that they are addressed as Taghut, in fact certainly Taghut is who is unjust in passing judgement or to whom the judgement is attributed like the idols, moreover Taghut back in time did not have the power of enforcement."
[220]He further added:ان مستفاد من بعض الروايات هو دخالة الإنتخاب في المسألة, فلا بد أن يكون القاضي منتخباً من المسلمين, و ذلك لقوله (ع): <فاجعلوا بينكم> في مقبولة عمر بن حنظلة, و على هذا الاحتمال لا بد ا أن يكون المتصدي لهذه الأمور ممثلا للمسلمين "It is deduced from some narrations, the involvement of election in this issue; so the Qadhi (i.e. well-qualified jurist exercising authority as a Judge) must be elected by muslims and this is in accordance to the saying of the Imam "appoint among yourselves" in the acceptable report of Omar bin Hanzalah, based on this prospect he must be addressing the affairs representing muslims (as a judge).
[fiihe tazalzalun 'aziim] - May blessings of Allah be upon our master Muhammad and his pure Progeny"[222]According to Sistani's official website, unlike Khamenei [223][224] he is skeptical of inflicting physical harm for the purpose of enjoining good and forbidding evil[225] with certain established legal exceptions and subscribes to the traditional view on declaring Jihad being only the prerogative of the Infallible Imam or his direct representative (naib al-khaas).
Al-Khoei wrote: 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 [occultation, i.e. from 939 CE until the coming of the Mahdi] 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: 1. him exercising the role of a judge and 2. 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), i.e. the faqih holds wilayah in this sense not in the sense of being the claimant (al mudda'ee).”[229]Furthermore, al-Khoei elaborates on the role of a well-qualified Islamic Jurist in the age of occultation of the Infallible Imam which has been traditionally endorsed by the Shia scholarship as follows: أما الولاية على الأمور الحسبية كحفظ أموال الغائب واليتيم إذا لم يكن من يتصدى لحفظها كالولي أو نحوه، فهي ثابتة للفقيه الجامع للشرائط وكذا الموقوفات التي ليس لها متولي من قبل الواقف والمرافعات، فإن فصل الخصومة فيها بيد الفقيه وأمثال ذلك، وأما الزائد على ذلك فالمشهور بين الفقهاء على عدم الثبوت، والله العال “As for wilayah (guardianship) of omour al-hesbiah (non-litigious affairs) such as the maintenance of properties of the missing and the orphans, if they are not addressed to preservation by a wali (guardian) or so, it is proven for the faqih jame'a li-sharaet and likewise waqf properties that do not have a mutawalli (trustee) on behalf of waqif (donor of waqf) and continuance pleadings, the judgement regarding litigation is in his hand and similar authorities, but with regards to the excess of that (guardianship) the most popular (opinion) among the jurists is on absence of its evidence, Allah knows best.”[230]Muhammad Kazim Khurasani (1839-1911), commonly known as Akhund Khurasani, was a Shi'i Marja'.
Khurasani made a set of prudent observations in his famous Nawishta about the inevitable hazards that will arise owing to the hypothesis proposing clergymen employ religion to legitimize their rule.
