Wilayah al-Faqih in the Islamic Republic

During the first year of the victory of the Revolution, i.e. in 1979 when a referendum for the Islamic Republic was to be held, different options were suggested as to the forms of government from which the people could choose. Some of the selections were “republic,” “democratic republic,” “Islamic democratic republic,” and “Islamic republic”. But the Imam said: “‘Islamic republic’, no more, no less.” Ninety-eight percent of the people of Iran also voted for the Islamic republic.
That is, the Islamic description of the government cannot be removed and be replaced by the word “democratic”. Now, if democracy is something above Islam, why did the Imam not allow this word to be inserted in the name of the Islamic government? And if republicanism is the same as democracy, there is no more need for the label “democratic”. Why did they insist on the label “democratic republic” and why did the Imam and the people in obedience to him oppose it? It is obvious that democracy could have different meanings, and certain things beyond its meanings could be applied to republicanism which would be negated and reliance on public opinion would outdo Islam.
Our system is an Islamic republic whose pillar is supported by the people. It was these people who staged the Revolution and who will keep it going with its Islamic substance and framework. The late martyred professor Mutahhari (may Allah the Exalted, be pleased with him) has an explanation which serves as a guidance for us in this context. He used to say: “Republicanism speaks of the form of government while ‘being Islamic’ speaks of the substance of government.”
The substance of government is the implementation of the commandments of Islam, but its form is republicanism in contrast to monarchy. So, our regime will not be a monarchy. Rather, its form is republic while its substance is Islamic. Authenticity is with the Islamic concepts, laws and values, and we do not have anything below or beyond Islam.
The Imam used to say time and again that the legitimacy of every system and every government position in the Islamic Republic depends on the authority of the wali al-faqih, upon which the theory of wilayah al-faqih is based. We have learned from the fuqaha, especially from the Imam, who also confirms its rational and textual proofs. Since the wali al-faqih is the authorised successor of the infallible Imam (‘a) who, in turn, is authorized by God, the legitimacy of the system comes with the wilayah al-faqih. Of course, this theory is not compatible with those who have been accustomed to Western culture.
We insist on this theory because this theory is consistent with the intellectual basis derived from monotheism and rooted in the Islamic viewpoint and not from the inclination of the clerical establishment. As I have explained before, the legislative Lordship of God demands that divine authority must be observed both in legislation and execution of laws; otherwise, a kind of polytheism is committed. This does not mean, however, that the people in this society do not have any role. The people have a total role in this system within the framework determined by Islam, and in this domain nothing else can replace the role and impact of the people. But one should make a difference between the legitimacy [mashru‘iyyah] and acceptability [maqbuliyyah] of a system.
The explanation for this is that since the Renaissance, there is no place in Western legal, philosophical and social discussions for God and religion. When, for example, they stipulate human rights in the Universal Declaration of Human Rights, the relationship between man and God is not mentioned there. If freedom of religion is also mentioned there, it is because as a choice, human beings have the right to choose any religion. There is no mention of truth and falsehood, or whether God exists or not.
Whenever social rights, including fundamental rights, civil rights and criminal rights, are stipulated for individuals, there is no association of those rights with God. It is never discussed whether God has rights over man or not; whether man has duties toward God or not. They do not like to consider God in issues pertaining to their rights, but if in accordance with our own beliefs, we want to base the legal system of our country upon the teachings of Islam and divine rights, they do not have any authority to deprive us of this right. As believers in God, monotheistic people and followers of Islam, we believe that in all legal issues—social, civil, criminal, and political—God must be taken into account. Above all rights is the right of Allah. With respect to Him, we have duties and responsibilities that we must discharge.
On the other hand, the rights of men are not the only discussed issue. In fact, rights and duties must be discussed together, the most important being the duty of man toward God. The right of legislative Lordship of God over human beings is for them to accept His laws in sociopolitical affairs. If a person does not believe in God, we will not compel him to accept Islam, but as Muslims we have the right to apply our beliefs in politics and the means of administering our country. In the constitution of our country, this has been accepted and as such it is significant to the highest degree for us. Our respect to the Constitution is the same as giving value to Islam.

Author: Muhammad Taqi Misbah Yazdi
Source: Imam reza network

Islam and Different Forms of Government

During the last session we dealt with a question related to the form of government—Has Islam specified a form of government or delegated it to the people? If it has specified the form, is it confined to a specific period or can be applied at all times to all places? Or, does it constantly change with the change in social circumstances? Some say: “It is true that during the time of the Holy Prophet (s) there was a specific form of Islamic government, but it was related to that period only.
The sacred religion specified that form of government only for the time of the Prophet, and thereafter new forms had to be chosen. It is even possible that at a given period, social conditions will demand the establishment of an Islamic government within the framework of a liberal democratic government, since these two forms do not contradict each other. Just as we have applied some Western modes of implementation—for example, the parliamentary system, constitutionalism[35] and now republicanism and believe both are not against Islam—it is possible that a time will come when we will accept the liberal democratic model and come to believe that it is not repugnant to Islam!?”
In reply to the above, it is necessary to point out the ambiguity and erroneous thinking surrounding it. As we all know, the Islamic Republic was established in our country by the great architect of the Islamic Revolution, His Eminence Imam Khomeini (q) and at its very inception, the Constitution was drafted and ratified by the people and approved by the Imam. Similarly, with his approval the foundation of the government was laid down and in the course of time some changes were also made in some of its parts. It is clear that neither the structure of our system is rooted in the time of the Holy Prophet (s) nor a system with the Islamic characteristics established during the period of the Commander of the Faithful (‘a).
The separation of powers existed neither during the time of the Prophet (s) nor that of the Commander of the Faithful (‘a) but the principle of the separation of powers has been accepted in our constitution, and the governments has three branches—executive, legislative and judiciary. Under this system the person who occupies the highest government post and formulates the general policies is the Supreme Leader. Next to him is the President. The chief justice heads the judiciary and the Speaker of the Islamic Consultative Assembly heads the legislature.
They are recognized as the highest officials after the Supreme Leader and the President. Twenty years after the Revolution, the Constitution has undergone some amendments related to the structure of some branches of government. In the beginning, the prime minister used to be the chief executive and form the cabinet subject for approval by the President and Islamic Consultative Assembly. After an amendment of the Constitution, premiership was omitted and the President became the chief executive. This structure has no precedence in Islam and Islam has no specific decree or program in this regard. So, one cannot claim that Islam explicitly ordered people to vote and elect their president and also play their role in choosing the heads of other powers.
Some people think that the reason behind what we have said is that Islam has not specified any form of government. So, we should acknowledge that Islam has delegated this affair to the people who have the right to choose the form of their government as well as their legal code. Similarly, other affairs of the government are relegated to the people. Therefore, the contention that the government must be determined by God is in conflict with people’s political self-determination, and there is contradiction between what is being practiced and the claim that the government must be determined by God.
Even the notion of “Islamic republic” is self-contradictory, because “republicanism” means that people take control of government and determine its form. On the other hand, once we add the modifier “Islamic” to the “republic” and say that the wali al-faqih must head the government especially if we believe that wilayah al-faqih acquires legitimacy from God and the Imam of the Time (may Allah expedite his glorious advent), we regard the system as divine and not popular.
That is, the legitimacy of this system is acquired from above. Initially, God gives legitimacy to the government and then the Prophet (s) and the infallible Imams (‘a) are designated and granted legitimacy by God and then the wali al-faqih by the living infallible Imam (‘a) and the political organs under his authority are granted legitimacy. If the government is a republic, these issues should no longer be raised, and whatever the people have chosen should be granted official status.
Refuting the abovementioned skepticism and stating the Islamic viewpoint on the form of government
Unfortunately, this skepticism is reflected in our own newspapers and magazines and presents the Islamic government in Iran as self-contradictory and religious despotism. As such, we need to tackle these issues lucidly and examine their bases from the Islamic viewpoint.
Once we say that our system is an “Islamic republic”, does ‘Islamic’ mean that the form and structure of government have been determined by God and introduced in the Qur’an, traditions, and at least, in the conduct of the Holy Prophet (s) and the pure Imams (‘a)? If the Islamic nature of the system does not imply that its structure has been introduced by God—just as pieces of evidence show—then what is the criterion for the Islamic nature of the system?
No one claims that Islam has mentioned the specified form and structure of government. It is not claimed in the Qur’an and traditions, the conduct of the Infallibles, the words of the late Imam (q), the Supreme Leader and other leaders of the system that the Islamic government is a government whose structure and hierarchy of power have been determined by God and the leaders of religion, and that Islam, for example, has ordered that the wali al-faqih must be the highest authority and then the president, and that the three powers must be separated from one another. So, if its organizational structure and the separation of powers are not Islamic, the Islamic nature must be sought somewhere else.
The impossibility of presenting a fixed government structure
At this point the skeptics say: Is the non-specification of the structure and form of government not an indication of Islam’s shortcoming? Is Islam not a complete religion and has it not indicated all the individual and social needs of man? Then, why has it not specified the form of government?
In reply, we have to say that Islam, which administered a small society within a short period during the time of the Prophet of Islam (s) also wants to administer the most complex and extensive human societies and even a global government, so, it cannot present a specific and fixed structure of government. The government founded by the Prophet (s) controlled a population of about ten thousand people whose way of life and culture were simple and most of whom were nomads and villagers along the suburbs of Medina.
Naturally, the government had a simple and restricted structure consistent with the social fabric and demographic density of that time. Gradually, the domain of Muslim countries and territories expanded and during the periods of the caliphs including the time of the Commander of the Faithful (‘a) only half a century after the advent of Islam, the Islamic government encompassed countries like Iran, Egypt, Iraq, Syria, Hijaz, and Yemen. In view of the expansion of the territories under the control of Islam, it was not feasible to adopt the same form of government of the Holy Prophet (s) in Medina.
If the structure and form of government suitable for vast Islamic territories and large populations had been introduced by the Messenger of Allah (s), it would have been treated by the people during his time as unnecessary and overambitious. Besides, since there was no practical ground for its realization, it would have been considered an exercise in futility.
If the Prophet (s) tried to determine in advance a specific form of government for every period, it would have required the writing of an encyclopedia of hypothetical forms of government in various periods and an explanation of their organizational structure. However, at that time since literate people were very few, let alone scholars who could discern these points and distinguish one from another, there was neither opportunity to deal with the subject nor the capability to preserve, publish and propagate it.
Government structures constantly change and evolve according to the circumstance of time and place as well as socio-cultural developments. One cannot determine a single form of government applicable for all times, places and conditions. The structure of government is part of the alterable and secondary laws of Islam that change according to the circumstances of time and place.[36] To identify and present them has been part of the duties of the Master of Affairs of Muslims [wali al-amr al-muslimin]. During the presence of an infallible Imam, he is the wali al-amr al-muslimin. During this period of occultation [ghaybah], his deputies shall be regarded as the wali al-amr al-muslimin.
Therefore, it was unfeasible for Islam to have specified beforehand the form of government suitable for every period and place. It is not an indication of Islam’s shortcoming. Yes, if Islam had not introduced a general framework for determining the forms of government under different conditions, we might have admitted that Islam is defective in this respect. Fortunately, Islam has set a way to determine the structure of government, in particular, and the alterable laws, in general.
As stated in the “legislation” part of the discussions, to determine and present alterable laws suitable to changing circumstances of time and place is part of the duties of the wali al-amr al-muslimin who presents those laws including the structure of government by basing them on the general principles and values of Islam, considering changing interests in every period and consulting experts and authorities. Thereafter, people are bound to act upon them. Given this solution offered by Islam, the people are saved from destruction and confusion, and differences and discord removed.
Skepticism on alleged temporal and worldly nature of government and obsoleteness of Islamic laws
Nowadays, those who are under the influence of Western culture, liberalism in particular, believe that administrative issues are temporal and worldly and have nothing to do with Islam, staunchly supporting and advocating it in their articles, speeches and discussions. They argue that Islam talks neither about a republican government, nor about a monarchical government, nor about other forms of government. So, it is clear that administrative issues are not among the issues that we expect religion to have dealt with and that God and the Prophet (s) might have talked about. Rather, these issues are related to the world and people themselves have to decide about them.
They also say: “People must determine not only the form and structure of government but even enact laws, except those laws that are against Islamic standards!” We ask them: "If administrative issues are part of the temporal and worldly affairs and relegated to people, why have many laws and decrees about administrative issues like those related to judiciary, taxation and penal laws been mentioned in the Qur’an and mutawatir[37] traditions?" This poses an impasse for them.
In a bid to bypass and evade this impasse, they assert that the administrative ordinances, judicial and penal laws mentioned in the traditions and Qur’anic verses have been related to the early period of Islam to meet the needs of the time. Islam had to get involved in administrative issues and introduce relevant laws only during the early period of Islam and the time of the Holy Prophet (s) because the people at that time did not have sufficient knowledge and capability to codify the laws they needed, and Islam had to address their needs.
Hence, laws and ordinances about the government, politics and judgment applicable only to that period have been mentioned in the Qur’an and traditions. Today, mankind has sufficient knowledge and capability to administer society and codify the laws they need, so those laws and ordinances are of no use anymore and must be discarded!
This is a contention of many of those feigning Islam. Sometimes, they categorically say: “The laws of Islam—including its social laws—have been confined to the early period of Islam. They are not applicable to our period and have not been revealed for this period at all.” At times, they make the abovementioned claim implicitly. Since they cannot dare to explicitly question all the social laws of Islam, they raise objection to some penal laws of Islam such as the amputation of the hand of a thief.
They say: “The law of amputation of the hand of a thief is meant to prevent theft which is a violation of the property of others and to maintain the financial security of society. If we have a better law and method of maintaining security in society, we have to apply them and not amputate the hand of a thief in every period or age. The purpose or goal of every law promulgated in Islam is the maintenance of order in society, and during that time there was no way of maintaining order in society but to amputate the hand of a thief. But nowadays we have better ways and methods of achieving this goal that are devoid of violence and do not trample upon human dignity.
Apart from being violent and harsh, amputating the hand of a thief is repugnant to human dignity and must be discarded. We live at a time when the phenomenon called “modernity” has emerged and social conditions have changed. Since modern life and society have new conditions totally different from the social conditions at the time of the Prophet (s) and the Imams (‘a), there is no more room for the implementation of Islamic laws.
Initially, they argued that Islam had not specified the form of government but delegated it to people.
Then, assuming that the determination of the form of government has been delegated to people, they concluded that in cases where Islam does not have a specific law, codification of law has been delegated to people. Thereafter, they went even further and said, “Even in cases where Islam has a pertinent law, it can be abrogated and changed!” Undoubtedly, in this case one must bid farewell to Islam.
Refutation of the above and the connection between Islam’s immutable and alterable laws
We have stated concisely that apart from immutable laws, Islam also has alterable laws because the laws of Islam are generally consistent with real good and evil and the life of man in the world depends on changing circumstances. The government also has secondary and alterable laws. To determine their form and framework in every period, to codify administrative laws and identify their suitability to the exigencies of time has been delegated to the wali al-faqih, who acts upon his duty within the framework and general principles of Islam.
It must be noted that to know the immutable and alterable laws of Islam and distinguish them from one another can only be done by a religious scholar who is technically called faqih or mujtahid. Since he is familiar with the spirit and sources of Islam, viz. the Book, Sunnah and conduct of the Prophet (s) and the infallible Imams (‘a), he can distinguish the immutable laws from the alterable laws and identify the characteristic features of each.
The mere fact that there are alterable laws in Islam does not necessarily mean that one can claim that all laws of Islam are alterable. If all the laws, ordinances and decrees of Islam were alterable, nothing specified in Islam would have remained. If all laws and decrees of Islam were mutable and Islam did not have any inalterable law at all, why did we stage a revolution, demand the implementation of Islamic laws and offer hundreds of thousands of martyrs along this way?
During the time of the Shah, by launching a reform and some changes the demands of the people could have been addressed and the ground for people’s enactment of laws be opened. If that is Islam and its changing laws are enacted according to the views and opinions of people, then we had no point in staging a revolution. We should have followed the nationalists and secured the interests of society according to their views. In that case, we would not have incurred all these losses! By following the nationalists liberal democracy, we could have conducted peaceful and fair elections. Through general suffrage, we could have sent our deputies to the taghuti Majlis and they could have changed unpopular laws according to the demand of people and their constituents! This is the gist of contentions inspired by alien ideas expressed today in some of those periodicals which are funded by our public treasury!
Some use allegory to influence the youth who do not have sufficient knowledge. For example, they say: “The Islamic government is a mere claim and has no objective reality because Islam deals with neither republicanism nor the separation of powers. Since Islam does not say anything about them, it is clear that Islam has no political program at all and everything is delegated to the people.”
Here we are dealing with those who believe in Islam, God, revelation, and the Qur’an, and not to those who play with the Islamic government, regarding it as an illusion. Addressing those who believe that there is God who has sent the Prophet (s) and revealed the Qur’an for our guidance, we would like to say that the Qur’an has explicitly mentioned laws, ordinances and decrees that are fixed, inalterable and immutable. Moreover, Islam and the Qur’an have repeatedly emphasized that they must not be changed and modified. Among them are the judicial laws of Islam.
Some issues are necessary and obligatory but they are mentioned in the Qur’an and traditions in plain and simple manner. Other issues, however, including judgment according to the laws and decrees of Islam, are emphasized and mentioned in such a manner that would make a person tremble should he intend to disobey or violate them. Somewhere in the Qur’an, God commands the Prophet (s) to judge according to the divine decree:
إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللّهُ...
“Indeed We have sent down to you the Book with the truth, so that you may judge between the people by what Allah has shown you...” [38]
Elsewhere, He mentions the duty of Muslims vis-à-vis the decree and verdict of the Messenger of Allah (s) and the need to obey him, saying:
فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ ثُمَّ لاَ يَجِدُوا فِي أَنفُسِهِمْ حَرَجًا مِّمَّا قَضَيْتَ وَيُسَلِّمُوا َسْلِيمًا
“But no, by your Lord! They will not believe until they make you a judge in their disputes, then do not find within their hearts any dissent to your verdict and submit in full submission.”[39]
As you can observe, God the Exalted, by using the phrase “but no, by your Lord” [fala wa rabbuka] which is an oath, considers as faithful [mu’min] only those who consult no one but the Prophet (s) in their disputes, differences and conflicts. But if they do not refer to the Prophet (s) to resolve their disputes and conflicts nor ask him to judge over them, or, if the Prophet (s) issues a fair judgment concerning their conflict, they regret asking him and are not pleased with his verdict, they are not faithful.
So, the faithful have to choose the Prophet (s) to judge and adjudicate and if he issues a decree against their interests they should not have an iota of displeasure in their hearts. They are supposed to totally submit to the Messenger of Allah (s). Those who acknowledge Muhammad (s) as a messenger of Allah but do not accept his decree and judgment, according to the statement of God, have no faith in the laws of God and the apostleship of the Prophet (s). They are indeed liars and hypocrites. How can a person believe in the apostleship of the Prophet (s) without accepting his decree and judgment?
Elsewhere in the Qur’an, in consecutive verses God introduces a person who judges contrary to the divine decree as transgressor, unbeliever and wrongdoer:
...وَ مَنْ لَمْ يَحْكُمْ بِما أَنْزَلَ اللّهُ فَأُولئِكَ هُمُ الْكافِرُونَ
“Those who do not judge by what Allah has sent down—it is they who are the faithless.”[40]
...وَ مَنْ لَمْ يَحْكُمْ بِما أَنْزَلَ اللّهُ فَأُولئِكَ هُمُ الظّالِمُونَ
“Those who do not judge by what Allah has sent down—it is they who are the wrongdoers.”[41]
...وَ مَنْ لَمْ يَحْكُمْ بِما أَنْزَلَ اللّهُ فَأُولئِكَ هُمُ الْفاسِقُونَ
“Those who do not judge by what Allah has sent down—it is they who are the transgressors.”[42]
Will anyone who reads these verses of the Qur’an with such a tone ever think that the judicial laws of Islam are only related to the time of the Prophet (s) and a maximum of twenty years thereafter, and after the expansion of Muslim territories and the annexation of Iran, Egypt and other countries, those laws were no longer applicable and were entrusted to the people? Will anyone who reads these and other verses of the Qur’an arrive at this conclusion? Or, will he conclude that those verses mean that under no circumstances of time and place should the divine decree be trampled upon?
By noticing the tone of the verses any rational and fair-minded person who has faith in God and believes in those verses as truly God’s words will definitely realize that it must be acted upon till the Day of Resurrection and that the laws of God must be the focus of attention and action and not be violated:
...وَمَن يَتَعَدَّ حُدُودَ اللّهِ فَأُوْلَـئِكَ هُمُ الظَّالِمُونَ
“…And whoever transgresses the bounds of Allah—it is they who are the wrongdoers.”[43]
Moreover, if some verses are ambiguous, it is the task of the religious scholar to determine whether their purport is confined to a particular time or meant for all times; whether it is limited to a particular community like the Arabs of the Arab Peninsula or encompasses all communities.
With the purpose of avoiding submission to the laws and decrees of Islam, satisfy their carnal desires and satanic demands and misguide the young generation, the transgressors allege that the sociopolitical laws of Islam are related to the early period of Islam and thereafter they are no longer applicable. It is true that we have chosen the label “Islamic Republic” but the Islam in it is only ceremonial. It is the people who choose and abide by what law they like, unless it is absolutely against divine decree! Unfortunately, some people have also unexpectedly expressed the same notion in their articles and speeches.
Divine laws’ jurisdiction encompasses all spheres of human activities
Thus, it is clear that the non-specification of the exact form of government in Islam does not mean that government, laws and ordinances are generally related to the judicial, legislative and executive powers and that other powers, to be possibly discussed in political philosophy theories in future, are all delegated to the people and God has no view about them. Rather, in all spheres of personal and social actions, including the realm of politics and governance, God has laws and ordinances.
We cannot find a case about which Islam does not have a general decree. To elucidate, some of the laws we know of are obligatory or mandatory, that must be acted upon. On the contrary, there are laws, prohibiting certain actions and items we know of, that must be abandoned. The rest are permissible, and laws pertaining to them are not mandatory. These non-mandatory laws are recommendatory [mustahabb], abominable [makruh] and permissible [mubah]. So, explicit actions and items are considered obligatory [wajib], prohibited [haram], mustahabb, makruh, or mubah. In any case, all of them are parts of the decree of God.
Therefore, if an action is neither mandatory nor forbidden, neither recommended nor abominable, the action of man is free. In the parlance of traditions it is absolute and free. In the jargon of the fuqaha, it is mubah, and mubah is also part of religious laws and divine decree. So, in the individual and social issues one cannot find a case which is excluded from the decree of God for every action or thing belongs to one of the five laws (wajib, haram, mustahabb, makruh, and mubah). Of course, in the legal and political usage, mustahabb and makruh have moral dimension and are not tackled as legal issues which are either wajib that must be observed, or haram that must be avoided, or mubah.
A concluding question: If we accept that Islam has a view about the essence of government, for example, stating the specific qualifications of the person heading the Islamic government, has Islam delegated to the people those affairs and issues about which it has no opinion, and that the decision about them is not related to the sacred religion, and the general understanding and perception of the people concerning them must be upheld?
At this juncture, even those who are acquainted with the juristic subjects of Islam to some extent sometimes use dubious expressions that can be exploited by others. For example, they say: “We learn from religion some of the issues in our lives and concerning them we refer to the Book, traditions and even the conduct of the Holy Prophet (s) and pure Imams (‘a). But regarding other issues we use our reason. In reality, we have two reference sources in knowing the proper way of living, viz. revelation and reason.” This nonchalant interpretation is sometimes adopted by those who are authorities and really religious people. Since it is not devoid of problems and causes others to err, I deem it fitting to assess it.
It is necessary to note that we have two terms for religious or divine decree:
1.The first term, religious decree—or devotional and divine decree—refers to the decree inferred from the Book and the Sunnah and is mentioned in the Qur’an and traditions as binding. According to this term, any decree deduced through another way, say, by means of reason, is not referred to as “religious decree” but it is called “dictate of reason” [hukm-e ‘aql]. If reason directly discerns a decree or ruling [hukm] and is convinced of it, and at the same time, religion says something about it, this religious view is an instructive [irshadi] statement and does not entail a religious or devotional decree. To elaborate, without external help our reason directly discerns certain things. For example, every person can understand and perceive that justice is good and injustice is bad. No one doubts this dictate of reason. Then, once justice is enjoined in a Qur’anic verse, according to the fuqaha this verse is considered “instructive” in nature. That is, it only guides and directs us to a decree which our reason can understand and discern.
The fuqaha’s use of this term for religious decree misguides others and makes them think that we are not in need of a religious decree for all the aspects and issues of our lives. In some issues the discernment and dictate of reason is sufficient. They think that if God does not say anything about a thing, He has not exercised His authority over it and delegated it to reason [to discern]. So, the domain of our lives is divided into two: The first section is where God exercises His authority and the second section is where our reason is the authority. This implies that God does not exercise authority in all places, and in everyplace we should not be concerned with what God has decreed. In fact, wherever God does not say anything, it is up to us to know His decree by using our reason.
As can be observed, some have exploited and misinterpreted the first term for religious decree and the nonchalant expression of the fuqaha on the basis of which religious decree is regarded as any devotional decree mentioned in the Book and Sunnah in contradistinction to the definite dictate of reason about which religion does not say anything, and in determining its ruling our reason is not dependent on religion which only offers an instructive decree. They have assumed that some aspects of our lives are beyond the authority of God and the reference authority in codifying pertinent laws is human reason.
2. The second term ‘instructive’ concerns the legislative will of God; that is, whatever God wants from us is in the obligatory or permissible form. So, whatever God definitely wants us to do is a decree of God. Sometimes, it is expressed in the Book, the Sunnah and other religious sources. At times, it is realized through reason. Accordingly, reason itself is one of the means of knowing and discovering the decree of God.
As such, we submit and follow the dictate of reason. By means of reason’s discovery of the divine legislative will, we realize that this decree is the very thing that God wants from us. If it is mentioned in fiqh that apart from the Book and Sunnah, we have another means of knowing religious decrees, i.e. reason, it is absolutely true that reason is also a means of discerning the decree of God.
In view of this interpretation and term for religious decree, all the actions and activities of man in individual, social, legal, judicial, internal and external, and international domains are included in the decree of God. Sometimes, the decree of God is established by the Book and Sunnah, and at times, through reason. Of course, the proof of reason must be so clear and definite that we can be certain that whatever is established by reason is the decree and legislative will of God.
Notes:
[35] It refers to the Constitutional Movement, Constitutional Revolution or simply Constitutionalism (1905-11) in Iran during the twilight of the Qajar dynasty. [Trans.]
[36] Contrary to the alterable laws of Islam are the inalterable laws that are fixed for all times and applicable everywhere.
[37] A mutawatir hadith is one which has been reported by so many different chains of transmission and such a number of narrators in every generation normally could not agree to fabricate a tradition without the fact of its fabrication becoming known. [Trans.]
[38] Surah an-Nisa’ 4:105.
[39] Surah an-Nisa’ 4:65.
[40] Surah al-Ma’idah 5:44.
[41] Surah al-Ma’idah 5:45.
[42] Surah al-Ma’idah 5:47.
[43] Surah al-Baqarah 2:229.
Author: Muhammad Taqi Misbah Yazdi
Source: Imam reza network

Presenting Some Questions Regarding Islamic Government

There are other questions regarding Islamic government which must also be addressed. Has Islam, only laid down the conditions and qualifications of the person who heads the government and not specified the form of government? That is, does Islam only recommend who must head the government and leave other things including the form of government to the whims of people and change according to the changes in social circumstances?
A more technical question which is comprehendible and understandable to those who are acquainted with juristic and legal discourses is this: Is the government a foundational [ta’sisi] or conventional [imdha’i] matter? A set of Islamic laws or juristic rulings is foundational. Before their actual forms are shown to the people, the sacred religion mentions these laws as well as describes their actual manifestations. For example, the ritual prayer [salah] is a foundational form of worship.
The religion of Islam has mentioned it and the manner of performing it has also been demonstrated to the people by God through the Prophet (s). Besides, before this obligatory act and the manner of its performance were conveyed to the people, no one had been aware of it. In general, the forms and manners of all ritual acts of worship are foundational as the people learned them from the Prophet (s).
For example, obligatory acts like fasting, Hajj pilgrimage and other devotional laws are all foundational.
In contrast to these foundational laws of Islam, there is a set of Islamic laws which in the parlance of jurisprudence [fiqh] is called ‘conventional’. That is, in their social interactions and intercourses, people have formulated a series of rules, regulations, contracts, and agreements, some of which are unwritten but people are bound to them; for example, trade and barter.
At the beginning the sacred religion had not ordered the people to engage in trade or barter whenever they needed a commodity. The people of wisdom knew of the necessity of this affair and they formulated the ways and manners of engaging in them. Then, religion approved this wise practice and gave it a religious credence, stating, for example:
وَأَحَلَّ اللّهُ الْبَيْعَ...
“Allah has allowed trade.”[34]
God allowed and made permissible [halal] the same trading and transactions practiced by people. This approval and permission of trade is a conventional [imdha’i] and not a foundational [ta’sisi] religious ruling. It is like the acceptance of a system formulated by people of wisdom on how to conduct their mutual transactions.
Now, this question is raised concerning government: Before God ordered people through the prophets (‘a) to abide by the divine government, had the people themselves founded a particular form of government which was later endorsed by religion? Or, did people also acquire knowledge of the form of government from God, and that if the prophets (‘a) had not ruled over people by God’s leave and permission and people were not obliged to follow and obey them, they would not have known the form of government?
In sum, once we say that the Islamic government is a well defined system with a religious legal standing and God has made it incumbent upon people to submit to it, the question asked is whether this government has been ordained and founded by God? Or, did the people themselves choose this form of government and found it on the basis of a social contract and God only endorsed and approved it, and therefore, this government has been considered Islamic as it has been endorsed, approved and sanctioned by God?
Author: Muhammad Taqi Misbah Yazdi
Source: Imam reza network

Obligations of the Rulers in Islam

All over history, rulers, according to their qualifications, have played influential roles in the development and retardation of nations. The ideal, sincere ruler is he who governs his subjects on bases of leniency, justice, and equality.
The absolute ruler, on the other hand, is he who enslaves, humiliates, and exploits the subjects for his own interests:
The Prophet (s) said: "On the Day of Resurrection, a caller will cry out: where are the unjust rulers and their supporters, including those who provided them an inkpot, those who untied one of their bags, and those who sharpened a pencil for them. Join all these individuals to those rulers."
The unjust rulers will sooner or later suffer punishments that befit their acts of oppression. History is full of stories showing the bad results of the absolute rulers.
Al-Hajjaj ibn Yousuf ath-Thaqafi is the most hideous example of the unjust rulers. He ruled for twenty years during which he killed 120,000 individuals besides those whom were killed during his campaigns. In his cells, there were fifty thousand men and thirty thousand women…etc. Finally, this dictator was affected by canker and severe frost until he perished.
Rights of Subjects against Rulers
(A) Justice:
The absolute authority of the unjust rulers, in most cases, is the result of people's rebellion against and disobedience to the Lord:
The Prophet (s) said: "Allah says: I am Allah. There is no god but I. I have created the kings whose hearts are in My hand. I will make the hearts of the kings full of mercy towards the people who obey Me, but I will make them full of rancor towards the people who disobey Me. Do not engage yourselves in reviling at the kings. You must repent to Me so that I will make their hearts full of compassion towards you."
(B) Righteousness
Because most people try to imitate them, it is obligatory upon rulers to be characterized by righteousness and well behavior so as to act as good examples for their subjects. Likewise, the rulers' deviation and misconduct push most people towards deviation.
(C) Lenience
Rulers are required to govern people with means of lenience and avoid persecution because despotism is the most disreputable manner of the rulers and the most injurious act towards the subjects.
The Prophet (s) said: "Lenience will beautify anything it accompanies and will disfigure anything it leaves." (al-wafi; part 3 page 86 (as quoted from al-kafi).
Amir ul-Mu'minin (a) said: "Habituate your heart to mercy for the subjects and to affection and kindness for them. Do not stand over them like greedy beasts who feel it is enough to devour them, since they are of two kinds, either your brother in religion or one like you in creation. They will commit slips and encounter mistakes. They may act wrongly, willfully, or by neglect. So, extend to them your forgiveness and pardon, in the same way as you would like Allah to extend His forgiveness and pardon to you, because you are over them and your responsible Commander (Imam) is over you while Allah is over him who has appointed you through what He has given to you of the knowledge of His Book and the practices of His Prophet (s)."
Imam as-Sadiq (a) said: "The lenient can win anything he wants from people." (al-wafi; part 3 page 87 (as quoted from al-kafi).
Lenience is of no value unless it is done to the virtuous people. The evildoers who disturb the social peace do not deserve any sort of lenient treatment.
Aspects of Lenience
Aspects of lenience can be shown through the words and deeds of the rulers. Hence, the ruler must use good wording and avoid obscenity. He must treat the subjects with kindness through sympathizing with their pains and tragedies and hurrying for helping them in misfortunes and crises. Finally, the ruler must try his best to save the subjects from heavy taxes.
Results of Lenience
Lenience creates the subjects' love for their rulers and save them from the need for flattering and hypocrisy.
God praised His Messenger Mohammed (s) for his lenience:
"Only through the Divine Mercy have you (Muhammad) been able to deal with your followers so gently. If you had been stern and hardhearted, they would all have deserted you a long time ago. (3:159)"
(D) Selection of the Retinue
A ruler, no matter how well-qualified he is, cannot dispense with supporters who help him do his duties properly. Such supporters, in fact, have a great effect in guiding and conditioning the ruler's morals and opinions. From this cause, it is important for the ruler to select well-qualified and decent retinue so that they will positively help him and contribute in achieving the subjects' pleasure.
(E) Settlement with the Officials
Because most of them take pride in their authorities, officials usually challenge and treat people arrogantly and neglect their duties. Such behaviors will surely dissatisfy people with the ruling authorities. From this cause, it is necessary for rulers to supervise and call the officials to accounts so as to reward the dutiful and punish the negligent. By doing so, each individual will perform his duty towards the society properly, tragedies and varieties of flattering to the official will be eradicated, and all the social affairs will he prevailed by justice.
(F) Achievement of Social Happiness
The ruler is responsible for the moral and material development of the subjects. This happiness can be achieved when the ruler supervises the subjects, pays attention to their interests, secures their rights of security, justice, and luxury, raises their scientific, physical, social, moral, and structural levels, cares for the industrial, agricultural, and commercial development, and encourages the talents and abilities.
Rulers' Rights against Subjects
The ruler, in his capacity as the pioneer or the national development and civilization, enjoys definite rights imposed upon the subjects.
In the following words, Amir ul-Mu'minin (a) refers to the rights of the rulers:
"The ruled cannot prosper unless the rulers are sound, while the rulers cannot be sound unless the ruled are steadfast. If the ruled fulfill the rights of the ruler and the ruler fulfils their rights, then right attains the position of honor among them, the ways of religion become established, signs of justice become fixed and the Sunna gains currency. In this way time will improve, the continuance of government will be expected, and the aims of the enemies will be frustrated. But if the ruled gain sway over the ruler, or the ruler oppresses the ruled, then difference crops up in every word, signs of oppression appear, mischief enters religion and the ways of the Sunna are forsaken. Then desires are acted upon, the commands (of religion) are discarded, diseases of the spirit become numerous and there is no hesitation in disregarding even great rights, nor in committing big wrongs. In such circumstances, the virtuous are humiliated while the vicious are honored, and there are serious chastisements from Allah onto the people."
(1) Obedience:
Rulers enjoy the right of obedience against their subjects in the fields that achieve satisfaction of God. Obedience encourages rulers to treat their subjects sincerely while rebellion and disappointment are detestable manners that excite the rulers' rage and punishment.
Imam al-Kadhim said: "O Shia, do not humiliate yourselves by acting disobediently to the rulers. You should pray to Allah to perpetuate the just rulers and rectify the unjust. Your rectification will be achieved when your rulers are rectified. The just ruler is as same as the compassionate father. Hence, you should love for him that which you love for yourselves and reject for him that which you reject for yourselves." (Bihar ul-Anwar; Kitab ul-Ashara page 218 (as quoted from al-Amali).
(2) Support
A ruler cannot dispense with the support of his subjects who help him do his duties properly by means of intellectual and mental efforts.
(3) Advice
People of reason are encompassed by the duty of providing advices to the rulers when they tend to despotism enthralling the subjects. If such advices prove futility, then the intellectuals are not blamed. The Prophet (s) said: "The ruler is Allah's shadow on this earth and the shelter of the wronged. If the ruler governs with justice, he will be rewarded and the subjects must thank. If the ruler governs unjustly, he will be punished and the subjects must show tolerance until they are relieved." (Bihar ul-Anwar; Kitab ul-Ashara page 214 (as quoted from al-Amali).
Nowadays, the rulers have no longer accepted advices; therefore, the civilized governments have permitted criticizing the rulers by way of parliaments, press media, and memoranda.
PHYSICAL AND MENTAL NECESSITIES
Human being is the composition of two elements: body and spirit. These two elements are correlated and interacting. Man's happiness depends totally on the soundness of these two elements each of which has its own desires and necessities.
The physical necessities are the material factors that achieve growth, health, and vitality, such as food, drink, clothing, and other life necessities.
The mental necessities are the intellectual and spiritual desires, such as knowledge, freedom, justice, peace of mind, and the like.
For gaining sound body and soul, it is essential to respond to these necessities. For instance, weakness and ailment are the results of depriving the body of its necessities, while puzzlement, worry, and misery are the results of depriving the soul of its necessities.
Physical Rights
Briefly, the physical right is to attend to the health regulations, such as moderation in food and drink, evasion of alcoholic drinks and drugs, abstinence from sinful carnal desires, habituating to cleanness, practicing physical activities, treating of the ailments, following the physicians' advices, and the like matters.
Mental Rights
Many people ignore the mental health because they are far away from the spiritual values. Few groups of people, however, can realize the mental complications that appear in the form of recalcitrance, rebellion, inclinations to the commitment of sins, excessive fondness of materiality, and desertion of the mental values. In view of that, the treatment for the spiritual defects has been more difficult and more laborious. In the same way, scholars and intellectuals have paid a greater attention to self-discipline and mental education; therefore, it is necessary for people of reason to care for such affairs.
(1) Self-education
Self-education can be achieved by enlightening with the divine recognition and the true belief and supplying with the beneficial knowledges that lead to the right guidance. Naturally, human souls incline to the belief in God, tend to knowledge, and yearn for discovering mysteries of the cosmos and secrets of life.
(2) Well Intention
Man enjoys two forms: one is external and represented by his body, and the other is internal and represented by his mental and moral traits. Man's external form is the target of praise and dispraise, according to its beauty or ugliness. In the same way, the internal form is the target of praise or criticism, according to its goodness or evil.
Like beautifying the external forms, rational people are accustomed to beautify their internal forms by means of clinging to well intention and well behavior, and avoiding showing off, hypocrisy, envy, and the like vicious manners.
Amir ul-Mu'minin (a) said: "Scholars and wise people used to correspond to each other three statements only: As for those whose main concern is the (preparations for the) life to come, Allah will satisfy their worldly concerns. As for those who maintain their hidden intentions, Allah will maintain their public affairs. As for those who establish good relations between Allah and them, Allah will establish good relations between people and them." (Bihar ul-Anwar; 1/62 (as quoted from al-khissal, al-Amali, and Thawab ul-A'mal).
Imam as-Sadiq (a) said: "As for anyone who keeps secret a good deed, Allah will, sooner or later, reveal a good reputation for him. As for him who keeps secret an evil, Allah will, sooner or later, reveal an ill reputation for him." (al-wafi; 3/147 (as quoted from al-kafi).
(3) Self-control
Due to the charming instincts and desires, mentalities tend to deviation to take to the depths of corruption. Hence, it is essential to control and immunize oneself against sins:
"… And (I swear) by the soul and that (Power) which designed it and inspired it with knowledge of evil and piety, those who purify their souls will certainly have everlasting happiness and those who corrupt their souls will certainly be deprived of happiness. (91:7-10)"
"However, those who had feared their Lord and restrained their souls from acting according to their desires, Paradise will be their dwelling. (79:41)"
The Prophet (s): "The faith of those who enjoy three traits is perfect: those whose rage does not take them out of the right, whose satisfaction does not take to the wrong, and who pardon when they are powerful." (safinat ul-Bihar; vol. 2 page 550 (as quoted from al-khissal).
4. Self-Judgment
Self-judgment is to call oneself to account every day regarding the good-deeds as well as the wrongdoings. If the scale of acts of obedience overweighs the scale of acts of disobedience, we must thank God for such success. But if the scale of acts of disobedience overweighs the scale of acts of obedience, we must discipline ourselves by reproach and criticism for the irregularity and going astray from the courses of the obedience to God.
Source: Imam reza network

The Role of the Islamic State

As indicated in the theory of distribution, the Islamic State possesses the sole right of ownership of natural resources. Consequently, it has absolute control over all aspects of economic activities. The owner of natural resources or, primary commodities, according to Sadr, is the sole owner of the secondary commodities. Basically, the govern­ment of the Islamic State can determine the flow of wealth in society and define the economic process. The major objective of the Islamic State is to set up policies to develop the natural resources to the fullest extent to benefit the entire society.
To achieve such an economic objective, the State has the right to distribute social economic resources to attain the maximum amount of production that brings prosperity to all people. The State has the responsibility to provide for the minimum essential needs of society and ensure the economic welfare of the people. It is unlike the capital­ist State, which leaves that function to the fluctuations of the market. Nor it is like the Marxist‑Leninist theory that advocates State control of all aspects of economic activities. The Islamic State sets the direction of economic activities, while giving individuals the right of private ownership to achieve the social goal. The government's role is to over­see and regulate economic activities. Accordingly, Islam has left the government with a high degree of flexibility in developing new regula­tions to meet any emergent economic circumstances. Sadr called the absence of restrictions in the Shari'ah as manatiq al-faragh (the dis­cretionary sphere of the law), where the jurist; has the authority to make judgements and rulings according to the principles of jurispru­dence. [33] He considers this area of legislation on the part of the lawgiver as a realistic approach to ensure the development of economic activities and the means of production. The leadership of the Islamic State then could initiate any new legislation and regulations that it sees as appro­priate to the new emergent circumstances in order to meet the eco­nomic needs of the people and secure maximum utilization of eco­nomic resources. In other words, the Islamic government is free to adopt a wide range of economic policies from full control of the economy to free‑enterprise in order to achieve its social goals. In this case, the government must depend on the economists and experts to watch for tile best possible alternative policies to set the direction of the State economy (provided that it will not overrule tile theory of distribution.)
Such an unlimited role of government in the economy of the Islamic State is justified because of its substantial social involvement. The State is responsible for the social welfare of all people. [34] The economic resources in the Islamic State are distributed not only accord­ing to work and ability to produce, but also according to needs. Not all people in society are able to work, and some of those who do are not able to satisfy their needs. Sadr identifies three economic classes in society: (1) those who have the mental and/or the physical power to produce more titan their needs; (2) those who are able to work, but only to the extent of meeting their essential needs; and (3) those who do not have the mental or physical power to work productively. The government's responsibility is to provide for the needs of the latter two classes, which are not limited to essential human needs. The people in the Islamic State must live in dignity, i.e., their economic status must be raised to an acceptable general level. Therefore, the State must have the economic resources to be able to finance the social welfare programme.
Whatsoever spoils of war God has given to His Messenger from the people of the cities belong to God, and His Messenger, and the near kinsman, orphans the needy and the traveller, so that it be not a thing taken in turns among the rich of you. (59:7)
The verse, according to Sadr, indicates two things: first, the allocation of economic resources between the government and the needy people; second, die distribution of wealth in such a way as to prevent the rich from controlling the economy. Based on the above interpretation, Sadr argues that the main principles of Islamic economics are: (1) public (i.e., State) ownership of the means of production and dis­tribution, and (2) centralized economic planning. It is only through the control of all the community's resources by society that the common need of social security is guaranteed and the essential economic rights of the individual are insured. Accordingly, the legitimate Islamic government has the responsibility to make longterm plans for serving the common good and overcoming instabilities of the market.
Islam recognizes differences of income between people, but strives to create an equitable standard of living. To realize such a socio‑economic condition, Islam, although it specifies fixed taxes to be collected from prosperous people, establishes a social and moral mechanism. A lavish and extravagant style of living is totally dis­couraged in Islam. Islam also forbids waste in production and consump­tion in order to direct the resources of the economy to produce com­modities that satisfy the needs of all people and bring about social equity. The State also has the authority to regulate wages and prices so as to overcome the selfishness and greed of those who possess economic wealth and insure an equitable standard of living for all people. In sum, the major goal of the Islamic State is the prosperity of all citizens.
Notes:
[33]. The jurist, according to Sadr, shall not change any of the primary princi­ples of Islam, i.e., the sphere of halal and haram, that which is obligatory and prohibited, respectively; but he may act within the realm of “secondaryâ€‌ matters, i.e the mandub and makruh, that which is â€کdesirable’ and â€کreprehensible’, respectively. The jurst may forbid any mandub action, or encourage any makruh ones.
[34]. Iqtisaduna, 607
Author: T.M Aziz
Source: erfan.ir

The Meaning of Wilayat al-Faqih

The words “Wali” and “Wilayat” have the same root (w-l-y). From it’s primary meaning of “to be near or close to someone or something”, is derived the general meanings “to be in charge”, “to govern” and “to exercise authority”. In Islamic juristic (fiqh) terminology, the term “Wilayat” has several usages. Some of these are as follow:
1. Wilayat al-Qaraba
This type of authority (Wilayat) is given to a father or paternal grandfather over minors and those who are insane (even after the age of adolescence). This authority to act as a guardian is based on relationship.
2. Wilayat al-qada’
According to Imami Jurisprudence, the infallible Imam originally possessed the sole authority to judge amongst the people based upon God’s law and revelation. At this time, however, a just and capable faqih may undertake this responsibility with the Imam’s permission.
3. Wilayat al-Hakim
In this case, authority is given to a regular administrator of justice (hakim), to supervise the interests of a person who is unable to take care of his own affairs; such as a fool or an insane person. Whoever does not have a guardian (Wali), jurists say: al-hakim is the guardian of those who have no guardian.
4. Wilayat al-Mutlaqa (The Absolute Authority)
According to textual evidences, such as verse 6 of Chapter 33 of the Qur’an, Imami scholars believe that the Prophet and Imams have divine authority over the people. The verse states that the Prophet has more rights over the believers than they have over themselves; thus his discretionary authority is effective amongst the people. This same authority, according to Shi’a beliefs, is also bestowed upon the Imams.
5. Wilayat al-Usuba
According to Sunni jurists, this authority is connected to inheritance; it encompasses a class of inheritors. This category of Wilayat is not accepted by Imami scholars.
According to Imami doctrine, absolute authority (Wilayat al- Mutlaqa al-Elahiya) remains with the Absent Imam, even during his greater occultation. Therefore, in order to exercise authority, every just and capable faqih requires the sanction of the Imam, who is in turn designated by God as the possessor of absolute authority and guardianship.
Although all Imami scholars generally agree upon the doctrine of Vicegerency (Niyabat) that emphasizes the role of capable jurists as deputies of the Absent Imam, who are entrusted with a degree of his authority. However, the crucial issue is the scope and extent of this vicegerency and in which affairs the jurists have authority.
In order to clarify the dimensions of this discussion, it is necessary to examine the traditional roles and functions that qualified jurists undertake as deputies of the Imam.
Author: Ahmed Vaezy
Source: al-islam.org

What is Wilayat al-Faqih?

The doctrine of Wilayat al-Faqih forms the central axis of contemporary Shi’a political thought. It advocates a guardianship-based political system, which relies upon a just and capable jurist (faqih) to assume the leadership of the government in the absence of an infallible Imam. However, although the guardianship of a high-ranking religious scholar is universally accepted amongst all Shi’a theories of governance, any disagreement is focused on the details such as the role of the jurist and the scope of his authority.
Because the theory of Wilayat al-Faqih has emerged from Imamate - which constitutes a cornerstone of Shi’ism – it is necessary to understand this political doctrine within the context of this concept of leadership. By comparing it to the tradition political theory of Sunni jurists – the doctrine of caliphate – and characterizing it’s major features, we will be able to better understand and appreciate the doctrine of Wilayat al-Faqih.
In order to overcome the ambiguities surrounding the relationship between Wilayat al-Faqih and the position of an Islamic jurist as a source of guidance and imitation (Marja’a e-taqleed), it is necessary to discuss the various dimensions of guardianship in the absence of the infallible Imam. Also in order to respond to those who suppose that this doctrine is an entirely new thesis, which has only recently appeared in Shi’a jurisprudence, and argue that it opposes the traditional position of scholars and jurists, it is vital to briefly explain the historical background of Wilayat al-Faqih amongst the Imami Shi’a School of Islamic thought.
The Concept of Imamate
The political status of the Imams is an essential component of Imami Shi’ism. They are considered to be the true successors of the most noble Prophet Muhammad (pbuh), and those who subscribe to this Islamic perspective believe that any successor must be appointed by Allah, through his Prophet. However, there are those who attempt to reduce Imamism to a merely political attitude, a party that supports Imam Ali (pbuh) and his family as the sole legitimate successor to the Holy Prophet. Hence many Sunni scholars define Shi’ism as follows:
Shi’a are those who especially follow Ali and maintain his leadership and succession of the Prophet by his appointment (nass) and testament openly (publicly) or privately, and also believe that Ali’s authority (awla) never goes out of his descendants[18].
But the political authority of the Imams does not imply that their role and status are restricted to governance or leadership. For their followers, the Imams represent the highest level of piety and they embody the same qualities as exemplified by the most noble Messenger of God. As Anthony Black describes them:
The twelve Imams themselves, and above all the present twelfth or hidden Imam, were held to be necessary to the constitution of the Universe and of true religion. The Imam is God’s proof (Hujjah: guarantee), he is the pillar of the Universe, the ‘gate’ through whom God is approached. Knowledge of revelation depends upon him[19].
Some of the qualities attributed to the Imams, such as “proof of God” (Hujjah) and “the guardian” (Wali), which are discussed later, refer to their great authority and are essential to understanding Shi’a political thought. Ayatollah Khomeini described “proof of God” as follows:
A ‘proof of God’ is one whom God has designated to conduct affairs, all his deeds, actions, and sayings constitute a proof for the Muslims. If someone commits an offence, will be made to the ‘proof’ for adducing evidence and formulating the charge. If the ‘proof’ commands you to perform a certain act, to implement the penal provisions of the law in a certain way, or to spend the income derived from booty, zakat, and sadaqa in a certain manner and if you fail to obey him in any of these respects, then God Almighty will advance a ‘proof’ against you on the day of Judgment[20].
The Imams are considered to be the successors of the Prophet (pbuh) and the rightful recipients of his authority. This is not because they are from his family; rather, it is because they are pious, obedient to Allah and embody characteristics that are pre-required for this level of religious-political leadership. Equally so, they are not appointed by any popular consensus; Imamate is instituted by divine installation (nasb); only Allah truly knows who possesses the qualities required to fulfil this duty, therefore only He is capable of appointing them. Shi’a considers Imamate, like Prophethood, to be a fundamental belief, and obedience to the authority of their Imam a religious obligation. Other than receiving divine revelation, which is specifically for the prophets, the Imams have all the qualities, duties and authority of the Prophet (pbuh). Political and religious guidance emanate from them and they are guardians over the believers. This is a manifestation of Allah’s guardianship over human beings.
In addition to this, the concept of guardianship is another crucial element of Shi’a political doctrine.
Imam as “Wali”
In many verses of the Qur’an, God introduces himself as “Guardian of the Believers” (Wali ul-Mumineen):
Allah is the Guardian of the believers. [Chapter 3, Verse 68]
Allah is the Guardian of those who believe. [Charter 2, Verse 257]
Allah suffices as a Guardian. [Chapter 4, Verse 45]
And according to several verses of the Qur’an, this guardianship has been delegated to the Prophet, so his authority is rooted in the aforementioned Divine authority:
Only Allah is your Guardian (Wali) and His Apostle. [Chapter 5, Verse 55]
The Prophet has a greater claim on the faithful than they have on themselves. [Chapter 33, Verse 6]
Verses such as these illustrate that the authority and guardianship of the Prophet was originally established and legitimized by Allah’s appointment. Following this interpretation, the followers of the Imams provide a large number of traditions and historical evidence that confirm the delegation of the Imams, by Allah, through the Prophet (the doctrine of appointment) as “guardians of the believers” (Wali ul-Mumineen).
Although the consequences of this doctrine will be considered over the following pages, at this point it would be helpful to discuss the meaning of the terms “Wali” and “Wilayat” and their usage, especially with regards to jurisprudence (fiqh).
Arabic lexicographers have mentioned several meanings for the word “Wali”, such as:
(1) Friend
(2) Supporter
(3) Devoted
(4) Protector.
There are a series of words derived from the root of “Wali”, for instance “Wilayat”, “Mawla” and “Mawala Alayh”. By considering the context to which these are applied, it becomes apparent that they apply to the situation that someone’s affairs have been taken charge of by someone else. Therefore, whoever takes charge of these affairs is the latter’s Wali, and consequently it is often applied to governance as well[21].
When the term “Wilayat” is attributed to the Imams, it carries the implications of “mastership”, “sovereignty” and“lordship”. This is to indicate the authority of the Imam over the believers, who are subject to his guardianship. Imami theologians refer to the Qur’an (especially Chapter 5, Verse 55) and prophetic traditions to support the exclusive authority (Wilayat) of the Imams.
The absolute authority and guardianship of Allah (Wilayat al-mutlaqih) forms a central pillar of Imami political thought, which maintains that whoever wishes to exercise this authority must be appointed by Him. It is this idea that distinguishes Imamism from all other political theories and even other sects of Shi’ism; because although all schools of Shi’a thought agree that the Imam is subject to divine appointment through the Prophet, only Imamism tries to sustain this approach under circumstances when the infallible Imam is absent. In this doctrine, it is Allah alone who holds the absolute authority and He has explicitly appointed the Prophet and a number of believers (his family, i.e. the Ahlul-Bayt) as guardians (Wali), who are entrusted with authority over the Muslims.
Only God is your Wali and His Apostle and those who believe. Who perform prayer and pay alms while they bow. [Al-Qur’an, Chapter 5, Verse 55]
The last phrase, “those who believe”, according to Shi’a commentators refers to the Imams, whose Wilayat was instituted through their appointment by the Prophet[22].
However, what truly distinguishes the Imami political doctrine from all other forms of Shi’a political thought emerges from the Imami concept of leadership during the period of greater occultation; in which the Twelfth Imam is absent. The Imami creed adopts a system of vicegerency, whereby the authority (Wilayat) is entrusted to the just and capable scholar (faqih e-adil), who acts as a deputy to the absent Imam. Thus, the guardianship of a jurist is legitimized and his authority is related to the original and absolute authority of Allah. A clear distinction must be drawn, however, between the authority of Imamate and the guardianship of the scholars. The Imams, whose authority is established upon their explicit designation by the Prophet, delegate and entrust a degree of their authority to those who possess specific qualities (such as justice and jurisprudence in the case of the fuqaha). So whereas the Imams were specifically appointed as guardians of legitimate authority, the jurists (fuqaha) are not explicitly selected by name, but rather implicitly chosen as those who possess the correct qualities for leadership.
The scope of a jurist ‘s authority and the realm of his vicegerency constitute the most essential, while simultaneously controversial element of Imami political thought. However, before entering this crucial debate, it is important to distinguish Imami political doctrine from the political system advocated by the traditional Sunni Jurists, which is the doctrine of Caliphate.
The Theory of Caliphate
Despite the common disagreement amongst their schools of jurisprudence, Sunni jurists have traditionally advocated a specific theory of state known as Caliphate; a doctrine that, both as a political theory and significant historic reality, dominated the Islamic community for a considerable amount of time. In the interests of the present discussion, it is necessary to differentiate between the theory of Caliphate and the doctrine of Imamism.
Caliph essentially means successor, or one who assumes a position previously held by another. However, this word is not confined to the context of political authority, so a caliph may not simply be the successor of a previous governor, but also someone who is definitely appointed as a deputy and entrusted with authority by the person who appoints him, somewhat synonymous with ‘deputy’ or ‘vicegerent’[23].
Historically, the early Muslims are said to have applied the title of Khalifa to the first four rulers after the Prophet (Pbuh). In it’s most basic meaning, the Khalifa is one who exercises governance in place of the Prophet. Abu-Bakr was once approached by a man, who asked him “Are you the deputy of the messenger of Allah?” to which Abu-Bakr replied, “No.” The man asked, “So who are you”? Abu- Bakr answered, “I am the successor of the Prophet”[24].
Montgomery Watt writes:
Since Abu-Bakr was not appointed by the Prophet except to deputize for him in leading the public prayers, the phrase “Khalifa of the messenger of God” cannot have meant ‘deputy’. The primary meaning must have been merely ‘successor’[25].
Although many rulers of the Ummayid dynasty attempted to attach a divine status to the title of successor (Caliph), Sunni Jurists generally consider the Caliph to be a legitimate ruler who governs and directs the state and it’s society. His appointment is dependant upon specific qualities that the ruler must possess, however there is no universal agreement as to what these characteristics must be.
This source of disagreement initiated the first political divergence amongst the Muslims, which precipitated, sustained and continues to sustain a theological debate with focuses on legitimate leadership following the death of the Prophet (pbuh). However, the theory of Caliphate was not enshrined until the reign of the Abbasids, when it was devised and formulated by Sunni Jurists. Black writes:
An articulate community, traditionalist political theory was finally formulated in the first half of the eleventh century. Its doctrine of the vicegerency met the requirements of the emerging religious community by radically scaling down expectations placed on the deputy, while retaining the legitimacy of the ‘Abbasids as leaders of the Muslims. The first four rightly guided (Rashidun) deputies were now placed in a special category. The immediate motive was to safeguard the ‘Abbasids Caliphate against alternatives, Shi’a Imamism or Isma’ilism[26].
The first, and most significant Sunni Jurist who attempted to systemize the doctrine of Caliphate within an Islamic juridical framework was Abu’l Hasan Al-Mawardi (Basra 979 – Baghdad 1058). He was a Shafi’i judge in Nishapur, and later became the chief Justice of Baghdad. In his famous book “al-ahkam as-sultaniyya” (the laws of governance), al- Mawardi attempts to legitimize the authority of the Abbasid government, while striving to justify the use of coercion as an implement of governance. He argued that a caliph is divinely entrusted with authority in political, as well as religious affairs[27].
He writes:
God …ordained for the people a leader through whom he provided for the vicegerency of the Prophet and through whom he protected the religious association; and he entrusted government to him, so that the management of affairs should proceed (on the basis of) right religion…The leadership became the principle upon which the bases of the religious association were established, by which the well-being of the people was regulated[28].
When examining this perspective, it is important to realize that the traditional advocates of Caliphate are often inspired and influenced by the Ash’ari School of Islamic thought. This particular doctrine emphasizes divine predestination (taqdir) and the will of God as a unique agent in the world. Naturally, the fundamental principle of this doctrine brings them to the conclusion that one person, solely by the will of Allah, will succeed to gain political authority.
Abu’l-Fadl Bayhaqi (995-1077) writes:
Know that the Lord most high has given one power to the Prophets and another power to Kings, and he has made it incumbent upon the people of the earth that they should submit themselves to the two powers and should acknowledge the true way laid down by God[29].
Al-Ghazzali in his Advice to kings says:
God has singled out two groups of men and given them preference over others: one group is the Prophets and the other is kings. Prophets he sends to His servants to lead them to Him and Kings to restrain them from (aggression against) each other[30].
This outlook, which assumes that the authority of a Caliph includes everything and that they are naturally predestined according to the eternal will of God, is naturally compatible with the opinion currently adopted by contemporary Sunni Jurists, who argue that Allah and the Prophet did not appoint a particular person or persons as rulers over the Muslims. After all, the logical consequence of this concept of predestination and unique divine agency is that it doesn’t matter who governs or how he obtains authority, for in any case and circumstance it would be subject to the will of God. This is the first distinction between Shi’a political thought and the doctrine of Caliphate. For Imamites the legitimate authority must be designated - directly or indirectly - by God.
The second distinction that must be made, however, concerns the method of appointing a Caliph. Imami political theory maintains that there is only one legitimate means to designate authority; divine installation. Even the guardianship of just and capable jurists (faqih adil) is established upon this basis; they are the vicegerents of the absent Imam, whose divine leadership is established by explicit designation, and who implicitly entrusted them with the guardianship of his followers. All of this authority, of course, is bestowed by Almighty God who has absolute authority and guardianship over all of creation.
In rejecting the explicit appointment of a successor to the Prophet, Sunni Jurists maintain that there are several means by which a caliph may be elected, which means there is no unique way to legitimize political power. Instead, they accept the appointment of the first four caliphs following the Prophet’s death as a religious source to sanction political authority. Consequently, according to Sunni interpretations, a caliph may be elected either by a few of the elites (e.g. some outstanding companions of the Prophet), by the explicit designation of his predecessor, or by an appointed council (shura).
The fact that many of the contemporary political positions of that time had been secured by coercion and military power, created a serious obstacle for the theory of caliphate and many Sunni scholars attempted to find a means to justify these authorities. For example, Al-Mawardi attempted to legitimize the authority of de facto rulers by designating them as government ministers (wazir) and commanders (amir), whom the caliph had to recognize[31].
Finally, the third distinction arises, which is concerned with the qualities that a leader must possess. According to the doctrine of Shi’ism, an Imam is not merely a political leader; rather he is also a religious leader who undertakes the exposition of divine sciences. Like the Prophet, he must embody the highest moral and intellectual qualities, such as immunity from sin and infallible knowledge. However, there is a wide-ranging disagreement amongst Sunni scholars regarding the characteristics of a caliph. Commonly, they do not believe that a candidate must be sinless, or enjoy infallible knowledge. In some cases, justice and fairness are not considered necessary, and obedience is required of even an unjust or oppressive tyrant. Al-Ghazzali says:
An evil doing and barbarous Sultan, so long as he is supported by military force (shawka) so that he can only be deposed with difficulty, and that the attempt to depose him would create unendurable civil strife, must necessarily be left in possession, and obedience must be rendered to him[32].
A general and significant feature of Sunni political thinking is that there is no procedure for the people to depose an unjust ruler. Rather, the grounds on which he may be removed are considerably reduced. For instance, Al- Baghdadi (d. 1037) said that allegiance (Bay’a) might only be revoked on grounds of heresy, incapacitation, imprisonment or serious injustice; although the latter is not accepted as a cause for disobedience by most Sunni scholars[33].
Although Imami political theory does not require a Wali al- faqih to be sinless or infallible, it does mention characteristics such as justice, fairness and expertise in jurisprudence as necessary qualities. This is because the jurists (fuqaha) are not only moral and legal experts they are also representatives of the hidden Imam.
The Meaning of Wilayat al-Faqih
The words “Wali” and “Wilayat” have the same root (w-l-y). From it’s primary meaning of “to be near or close to someone or something”, is derived the general meanings “to be in charge”, “to govern” and “to exercise authority”. In Islamic juristic (fiqh) terminology, the term “Wilayat” has several usages. Some of these are as follow:
1. Wilayat al-Qaraba
This type of authority (Wilayat) is given to a father or paternal grandfather over minors and those who are insane (even after the age of adolescence). This authority to act as a guardian is based on relationship.
2. Wilayat al-qada’
According to Imami Jurisprudence, the infallible Imam originally possessed the sole authority to judge amongst the people based upon God’s law and revelation. At this time, however, a just and capable faqih may undertake this responsibility with the Imam’s permission.
3. Wilayat al-Hakim
In this case, authority is given to a regular administrator of justice (hakim), to supervise the interests of a person who is unable to take care of his own affairs; such as a fool or an insane person. Whoever does not have a guardian (Wali), jurists say: al-hakim is the guardian of those who have no guardian.
4. Wilayat al-Mutlaqa (The Absolute Authority)
According to textual evidences, such as verse 6 of Chapter 33 of the Qur’an, Imami scholars believe that the Prophet and Imams have divine authority over the people. The verse states that the Prophet has more rights over the believers than they have over themselves; thus his discretionary authority is effective amongst the people. This same authority, according to Shi’a beliefs, is also bestowed upon the Imams.
5. Wilayat al-Usuba
According to Sunni jurists, this authority is connected to inheritance; it encompasses a class of inheritors. This category of Wilayat is not accepted by Imami scholars.
According to Imami doctrine, absolute authority (Wilayat al- Mutlaqa al-Elahiya) remains with the Absent Imam, even during his greater occultation. Therefore, in order to exercise authority, every just and capable faqih requires the sanction of the Imam, who is in turn designated by God as the possessor of absolute authority and guardianship.
Although all Imami scholars generally agree upon the doctrine of Vicegerency (Niyabat) that emphasizes the role of capable jurists as deputies of the Absent Imam, who are entrusted with a degree of his authority. However, the crucial issue is the scope and extent of this vicegerency and in which affairs the jurists have authority.
In order to clarify the dimensions of this discussion, it is necessary to examine the traditional roles and functions that qualified jurists undertake as deputies of the Imam.
Making a Decree (Al-Ifta)
With regards to guidance in rulings and religious duties, it is necessary for those who lack sufficient knowledge of Islamic law and the legal system (Shari’ah) to refer to the opinions of a jurist (faqih). The jurist who issues legal and juridical decrees is known as a “Marja’a taqleed”, and the term meaning to follow or imitate their opinion is “taqleed”.
There is no disagreement amongst scholars regarding the application of this function by a well-qualified jurist. After all when a person has questions on a particular topic, it is only natural for them to refer these to an expert in this field, not only in the sphere of religion, but in all aspects of life. For this reason, although the jurist must possess certain qualities to assume this role, there is no need for the express permission of an Imam. In other words this function should not be mentioned as an example of the Imam ‘s authority and a type of Wilayat.
ii) To Judge (Al-Qada)
It is legally established that a just faqih is able to mediate disputes and judge in legal cases. Imamis believe that this function (Wilayat al-qada or al-hukuma) is encompassed within the Imam’s divine authority. Hence, only those who have his permission may assume this role. Imam as-Sadiq (pbuh) referred to the administration of justice (hukuma) as a constitutional right and duty of the Imam:
Beware of the Hukuma (administration of justice). Indeed, al-Hukuma belongs to the Imam who is knowledgeable in matters of judicial decisions (qada) and who is the just one (al-adil) among the Muslims, like the Prophet or his legatee[34].
Imami jurists commonly agree that this responsibility
(Wilayat al-qada) is entrusted to the just faqih as a deputy of the Imam.
Hisbiya Affairs (Al-Umur al-Hisbiya)
The Prophet (pbuh) said:
The sultan is the Wali of the one who does not have a Wali[35].
According to this hadith, the sultan is the guardian (Wali) of those who need a guardian to for a particular reason. For example, when the father of a minor or an insane person dies. Imami jurists extend this role to a set of affairs that require an authorized guardian to oversee them; these are known as al-umur al-hisbiya, and include religious endowments, inheritance and funerals (as well as those mentioned above). Although all Imami jurists accept the legality and necessity of this role, they disagree as to whether or not he is appointed by the Shari’ah or because he is naturally the best suited for the role. Some maintain that there is no expressed permission stemming from Islamic traditions to justify the authority of a jurist in such cases (hisbah). However, though the Shari’ah is silent, this does not mean that issues of hisbah do not need to be attended to. And a faqih who has knowledge of the Shari’ah and is just and pious, logically has priority over all others in these cases.
These three functions only form a fraction of the Imam’s authority; in the history of Imami Shi’ism, marja’aiyya (authorative reference) has largely been restricted to these central roles (especially the first). However, the religious authority and duties of an Imam as a guardian (Wali) extend far beyond the three functions mentioned above. Those who believe in universal vicegerency (Wilayat al-amma) maintain that the role of the faqih is not restricted to merely a few religious duties, but rather he has the same authority as the Imam. He has the right and duty to lead the Shi’a community and undertake the full function and responsibilities of an infallible Imam.
In addition to the administration of justice (Wilayat al-qada) and ‘hisbah’, the Imam also has the right to exercise governmental, juridical and economic duties. The political nature of these duties consequently implies that the Imam is the leader and ruler of Muslim society (Wilayat al-siyasiyya). Those who advocate Wilayat al-amma extend the scope of the faqih’s authority to the following duties:
1- Political- Devotional (Ibady) Orders and Prayers
Imami fuqaha emphasize that performing certain religious ceremonies, such as leading the prayers of Eid al-Adha and Eid al-Fitr, in addition to the prayer of Jum’ah (Friday), can only be lead by an Imam or one who has been designated by Him. This view presupposes that leading the prayers is a political-religious position and a function of the true Imam. For instance, Shaykh al-Mufid[36] says:
It is well established that every imperfect being needs someone who can discipline him so that he will refrain from evil acts…He should also be the one who will protect Islamic territory and will assemble the people in order to convene the Jum'ah and the Eid prayers[37].
In addition, the formal affirmation of the new moon for religiously important occasions (e.g. Shawal for Eid al-Fitr), requires the endorsement of a just and capable Imam (Imam adil).
2-Legal Punishment (Hudud)
It is established in Islamic traditions that the application of legal punishment (hudud) requires the sanction of an Imam. Considering that some categories of legal punishment involve pain, injury or death, whoever is entrusted with this duty, must have the legitimate authority to deal with these issues. The administration of justice and application of legal punishment obviously require political authority, otherwise they are impossible to enforce both legitimately and consistently. Functions that involve the administration of justice, such as determining compensation (diyat), dividing inheritance and affairs such as retaliation (qisas), also belong to the Imam.
3 - Islamic Taxes
The collection and distribution of taxes is one of the most important functions of any government, therefore those who have the right to fulfil this duty also have political authority (Wilayat al-siyasiyya). Sunni jurists generally maintain that a sultan (deputy), who has political power, can receive taxes such as zakat. Imami fuqaha, on the other hand, believe that the Imam has the sole entitlement to receive Islamic taxes (zakat, sadaqa, kharaj) and decide how they should be spent.
4 - Jihad (Holy War) and Defense
Unlike a number of Sunni jurists, who consider fighting unbelievers for the expansion of the Islamic state as a form of “Jihad”. The scope of Jihad is not so broad amongst Imami jurists who, in order to prevent the abuse of this concept by corrupt political authorities, insist that the permission of the Imam is a necessary condition for Jihad. Shaykh Tusi says:
It is imperative that the Imam should be the one to commence Jihad against unbelievers (kuffar)[38].
Sachedina explains why there is no justification for Jihad without permission of the Imam in the Imami point of view:
The original purpose of Jihad, then according to the Imami, was not preserved under the Caliphate. What had caused the Jihad to drift away from the Qur’anic purpose was the coming to power of unjust and unrighteous authority claiming to undertake Jihad in the name of God. Of the two main purposes of Jihad, namely to call upon the people to respond to God’s guidance, and to protect the basic welfare of the community, the first purpose, according to all the Imami Jurists, required the presence of the just Imam or the person deputized by such an authority. This was to guarantee that Jihad against unbelievers was undertaken strictly for the cause of God[39].
These four categories of authority and function introduce an essential issue in determining the scope of a vicegerent’s authority. If an Imam has delegated his authority and duties entirely to a just and capable jurist (faqih) as his deputy during the period of greater occultation, the guardianship (Wilayat) of fuqaha would be universal (amma). Universal guardianship implies that the Islamic society is in need of a Wali to lead and organize it’s affairs, regardless of whether an infallible Imam is present or not.
Wilayat al-Faqih can be defined as an authority entrusted to learned fuqaha so that they may direct and advise the Muslim ummah in the absence of an infallible Imam. This authority is derived from the Imam, who is al-Hujjah (the proof of God), therefore it is incumbent to obey their commands as the only legitimate authority. However, there remains some ambiguity surrounding the scope of the authority (Wilayat) that has been delegated to the fuqaha.
The concept of Wilayat encompasses many degrees of authority. The highest form of authority (Wilayat) bestowed upon the faqih is the universal type (Wilayat al-amma), whereas the most basic form is embodied in the authority to undertake ‘hisbah’ and ‘qada’ (the administration of justice). Some people make the mistake of assuming that Wilayat al-faqih refers only to the universal authority, when in fact it refers to the total scope of the scholar’s vicegerency in the absence of an infallible Imam.
Some Misconceptions
At this point, it is necessary to address two common misconceptions surrounding Wilayat al-Faqih. Many people erroneously assume that it is something new and in essence distinguishable from the traditional status of marja’aiyya. This misunderstanding is caused by a lack of attention to the definitions of and the relationship between ‘Wilayat’ and ‘marja’aiyya’ and the distinction between ‘fatwa’ and ‘hukm’ (the commands of faqih as Wali).
The role of a marja’a taqleed is widely considered to be solely a juridical authority to whom the Muslim community may refer to in the case of religious questions and commandments concerning the practical side of Islam (fiqhi questions). However, this definition is not comprehensive; it concentrates exclusively on one of the legitimized functions of a jurist, while overlooking the others. As we mentioned previously, the faqih has at least three significant functions; as an expert in Islamic law and jurisprudence, he is entitled to undertake ‘ifta’. However, as an appointed deputy of the Imam, he has the authority (Wilayat) to exercise ‘hisbah’ and ‘qada’. Accordingly, every faqih is entitled to issue a decree (fatwa) and, at the same time, to be appointed as ‘Wali’ to undertake specific functions. When the jurist administers justice or acts as a legal guardian to a ‘mawla alayh’ (someone who is without a legal guardian) he is known as a ‘Wali’ or ‘hakim al-shar’ and when he is referred to in religious (fiqh) issues, he is usually called ‘marja’a taqleed’. A necessary distinction must be made between a ‘fatwa’ (decree) issued by a faqih in his capacity as a religious authority (marja’a) and a ‘hukm’ (order) issued by him as a Wali and ‘hakim’ (guardian or ruler).
A ‘fatwa’ is classified as a decree issued by the jurist based on his deductions from Islamic sources. He attempts to determine the position of the Shari’ah and divine commandments with regards to a specific issue, in which his opinion will be adopted by those who submit to his religious authority (muqalid). On the other hand, a ‘hukm’ is an order issued by a Wali regarding a particular set of circumstances, the Islamic legal system and interests of the Muslims. Therefore, it is not merely due to his deduction from a religious source, though he must respect the Shari’ah when issuing a hukm. The hukm is intended to effectively organize and resolve difficulties within Muslim society.
Another key issue concerns the relationship between the first function of the faqih, which is ifta, and the other duties that are subject to his Wilayat (guardianship). Theoretically, these two elements seem independent and entirely separable from one another, but can they really be disassociated?
Suppose that there were one hundred just and capable scholars, who fulfiled the qualities required to assume the role of Wali and marja’a. It is not obligatory upon all of them as an ‘individual duty’ (wajib al-ainy) to assume responsibility for all three functions of a faqih? The answer is negative. Performing these functions is a ‘sufficient necessary’ (wajib al-kefai), which means that if a number of them were to undertake these three duties, then the others would no longer be obliged to issue a ‘fatwa’, to judge or to act as a guardian (if the others are meeting the requirements of the community). In conclusion, although ever faqih potentially could become marja’a and Wali, only a few of them will effectively assume these functions.
At its highest degree, the universal vicegerency of the jurist (Wilayat al-amma) also encompasses political authority (Wilayat al-siyasiyya). Some adversaries of the doctrine maintain that the meaning of ‘Wilayat’ (guardianship) in Imami jurisprudence is essentially incompatible with political authority. They argue that, according to the Islamic legal system, ‘guardianship’ requires the existence of a ‘mawla alayh’ (one who is need of a guardian), which in definition refers to those who are impotent in their affairs, whereas political authority cannot presuppose that the subjects of a government fall into this category. Therefore the guardianship of a faqih is limited in scope and has no connection to political authority[40].
The term ‘Wilayat’ is used in two cases in the Qur’an and Islamic traditions; firstly there are circumstances when a ‘mawla alayh’ is unable to discharge his or her own affairs (in cases of insanity, incapacity or immaturity) – this is umur al-hisbah. The second involves the authority of the Imam to administer justice (Wilayat al-qada) and collect taxes. However this case does not presume any disability on behalf of the ‘mawla alayh’. Although people are generally able to manage their own private affairs, there remain matters in every society that require the existence of a reliable, credible and just authority to undertake and supervise them. The Qur’an introduces Allah, the Prophet and (according to the Shi’a perspective) the Imams as guardians (Wali) over the believers. Clearly these verses consider the believers (mawla alayh) in need of divine guidance and leadership, and not as impotents who need supervision in all of their personal affairs.
The authority and guardianship of the faqih is a social duty, which is delegated to them. Consequently it neither gives them an increased status in humanity, nor decreases the status of people who admit the guardianship of a just and capable faqih. Imam Khomeini says:
By authority we mean governance, the administration of the country and the implementation of the sacred laws of the Shari’ah. This constitutes a serious and difficult duty but does not earn anyone an extraordinary status or raise him above the level of common humanity. In other words, authority here has the meaning of a government, administration and execution of law, contrary to what many people believe, it is not a privilege but a grave responsibility[41].
The Historical Background
Universal guardianship (Wilayat al-amma) is undoubtedly the most fundamental element of Imami political doctrine in the era of occultation (ghaibat). Therefore, it is essential to understand what position the most learned Imami jurists have historically adopted regarding this concept. Moreover, it is often speciously conceived that Wilayat al-amma is a new development in Islamic thought, which has no origins amongst the early Imami jurists. However, a brief survey of its historical background in Imami jurisprudence reveals not only the weakness of this supposition, but it also illustrates that Wilayat al-amma is a concept widely endorsed by many outstanding jurists.
When examining a historical account of scientific studies, it is easy to overlook two important points. Firstly, we often assume that our predecessors approached a problem from the same perspective and with the same clarity as we do. However, this expectation is rarely validated with regards to debates on subjects such as politics, which encompass various dimensions that each constitutes an area of specialized research (such as philosophy and ideology).
Therefore it is hardly correct to suppose that political thinkers in the past necessarily followed the same problem or methodology as contemporary intellectuals. Secondly, although scholars today are freely able to write and express their own ideas, this often leads us to mistakenly expect that the social and political climate was the same for previous scholars, who in fact lived under illegitimate and often oppressive governments. They were thus often forced to practice precautionary dissimulation (taqiyyah) and were unable to explicitly state their opinions.
There are two strands of thought amongst the supporters of Wilayat al-amma. There are those who explicitly and directly insist that the vicegerency of a faqih is universal. While on the other hand, some scholars maintain that a learned jurist may be entrusted to undertake a number of duties in addition to the primary three of ifta, qada and hisbah.
The latter of these two opinions usually occurs in the early period of Shi’a jurisprudence. Until the emergence of the Safawid dynasty in Iran, the Shi’a community existed as a minority, without political power. Hence, the universal authority of a faqih, ruling and political jurisprudence had very little bearing on the circumstances of the Shi’a, which is why the fuqaha devoted less attention to discussing matters of political theory and the duties of a ruler.
When taking into account the opinions of these learned scholars, it is important to recognize that they not only state their personal opinion (ijtihad) concerning the scope a jurist‘s guardianship, but also maintain that this opinion is in accordance with the general consensus (ijmaa) of the Imami fuqaha. This reinforces the assumption that jurists who were historically silent regarding political issues, such as governance and universal authority, remained so due to the social and political circumstances of the time (taqiyyah).
Regarding the first school of thought regarding Wilayat al- amma, one of the most important Imami jurists, al- Muhaqqiq al-Karaki[42]says:
Imami fuqaha have consensus on the point that the fully qualified faqih, known as a mujtahid, is the deputy (nayib) of the infallible ones (peace be upon them) in all the affairs attendant upon the deputyship. Hence, it is obligatory to refer to him in litigation and accept his verdict. If necessary, he can sell the property of the party who refuses to pay what he is due...rather, if it were not for the Wilayat al-amma many of the Shi’a community’s affairs and needs would remain undone[43].
Shaykh Muhammad Hassan[44], The author of an encyclopedic work in Imami fiqh, ‘Jawahir al-Kalam’ writes:
…carrying out Islamic sentences and implementing religious injunctions is obligatory at the era of occultation. Being the deputy of the Imam (Pbuh) in many cases rests with the fuqaha. The faqih’s social status is the same as the Imam. There is no difference between him and the Imam (Pbuh) in this respect.
[The verdict of] Our fuqaha on this issue [is] unanimous; in their works they frequently underscore the idea of referring to a guardian/governor (hukm) who is the agent and representative of the Absent Imam. If the fuqaha are not to have the general vicegerency, all the affairs of the Shi’a will remain unattended. Those who surprisingly raise objections about the Wilayat al-amma of the faqih, then seem to be ignorant of jurisprudence and the words of the infallible ones; they have not pondered these words and their meanings[45].
Hajj Aqa Reza Hamedani[46] also maintains that Wilayat al- amma is a unanimous concept amongst Shi’a jurists:
In any case, there is no doubt that the fuqaha of integrity (Jame al-Sharayeti), who have all the perfect, necessary qualities to undertake the vicegerency are the deputy of the Imam of the time in such matters. Our fuqaha have testified to this in their works. Their statements indicate that they regard the vicegerency of faqih in all matters as indisputable so much so that some of them have taken consensus (Ijmaa) to be the pivotal proof of the faqih’s general guardianship (neyabat al-amma)[47].
As we discussed earlier, many jurists attribute duties to the faqih that require him to be entrusted with universal authority. The evidences regarding the appointment of a faqih as a deputy of them Imam cover many chapters of fiqh, the explanation of which would require many pages. However, in the interests of our discussion, we will examine only a few of them here. Shaykh al-Mufid (334-413 A.H) asserts that the application of legal punishment (hudud) is one of the key functions of a faqih:
It is the duty of the ruler of Islam (Sultan al-Islam) who is appointed by Almighty God to implement hudud. Sultan al-Islam is the infallible Imams from Muhammad’s (Pbuh) family or the rulers and governors (Hukm) who are designated by them. They have entrusted this duty to the fuqaha where possible.
Early Imami jurists applied titles such as ‘sultan al-Islam’, ‘hukm’ and ‘Wali’ to the Imams. Many of these, such as sultan al-Islam, originally belong to the infallibles (Prophet and Imams) and so seldom apply to others. However, the majority of them also refer to those who are the appointed deputies of the Imam as well. For instance, Fakhr al- Muhaqqiqeen[48] says:
The meaning of ‘hakim’ here is the just ruler (al- Sultan al-adil) or his deputy. When there is no access to the Sultan or his particular deputy, it is the role of a well-qualified faqih…so when the author (Allamah Hilli) says “when there is no hakim” he means by ‘hakim’ all these three [above][49].
Muhaqqiq al-Karaki also endorses the above interpretations of ‘hakim’. He writes:
In the era of occultation, the Imam’s general deputy (al-nayb al-amm) is the well qualified jurist…It should be noted that when the fuqaha use the term (hakim) unconditionally, it exclusively refers to a well qualified faqih[50].
It is important to remember that ‘judge’ is not synonymous with ‘hakim’. This is because the application and enforcement of legal punishments, in the view of Imami scholars, is delegated to the governor (hakim) and not the judge (qada). Hafs ibn Qiyas asked Imam as-Sadiq (pbuh): “Who is in charge of punishment, the ruler or a judge?” To which the Imam replied:
“The application of hudud is due to he whom has hukm (who governs)”[51].
This distinction clearly indicates that the application of legal punishments (hudud) requires full political authority; which in turn necessitates universal guardianship (Wilayat al- amma). A view that is supported by many Imami jurists, such as al-Karaki:
The reliable well qualified Jurist who can issue legal decisions is designated by the Imam. Accordingly his rulings are effective and it is obligatory to assist him in the administration of al-Hudud and al-qada, among the people. It is not proper to say that the Jurist is designated for administration of Justice and for giving legal decisions only, and that the Jum’ah prayer is a matter outside the scope of these two responsibilities. Such an opinion is extremely weak because the jurist has been appointed as al-hakim, by the Imams, which is well documented in the traditions[52].
As we discussed, the Jum’ah prayer is a political function, which, in the view of the Imami jurists, belongs to the Imam. Therefore, every Imami jurist who believes that the fuqaha are able to fulfil this function during the period of occultation (ghaibat), would also have admit to the validity of Wilayat al-amma.
Moreover, if the authority of the faqih is not confined to the role of legal arbitration and guardianship, then the Imami mujtahid may say that the fuqaha have the authority to collect Islamic taxes, which is an obvious indication of universal authority. The first shaheed (martyr)[53] says:
It is said that it is obligatory to give ‘zakat’ to the jurist during the occultation if he asks for it himself or through his agents because he is the deputy of the Imam, just as the collector of the taxes is. Rather, however, it is more appropriate to state that his vicegerency on behalf of the Imam is applicable in all those matters in which the Imam himself has authority; whereas the collector is the agent of the Imam only in a particular function[54].
The second shaheed[55] also believes that the Islamic taxes (zakat) should be delivered to the Imam, or to the trusted Jurist during occultation. He later explains why the zakat should be given to the faqih:
One must bear in mind that he (the faqih) is appointed in the interest of the public, and if he were to be dishonest there would occur harm to those who were entitled to receive the zakat[56].
In concluding the historical background of Wilayat al-amma, it is necessary to re-emphasize that this doctrine is widely supported by later Imami jurists. Who, explicitly and more clearly than their predecessors, support the universal authority of a faqih. A number of these jurists, and their works, are as follows:
(1) Mullah Ahmad al-Naraqi, in his work Awaid al- Ayyam, chapter ‘Wilayat al-fuqaha’, Page 529.
(2) Sayyid Mirfattah al-Maraqi in al-Anavin Page.355. Al-Bahr al-Ulum in Bolqatol al-Faqih, Volume 3, Page.231.
(3) Shaykh Abd al-Allah Mamaqani in Risala al-Anam fi hukm e-amwal al-Imam, Page 14.
(4) Mirza al-Nayyini in ‘Al-Makaseb wa al-Bai’, edited by Shaykh Muhammad Amali, Volume 1, Page 336.
(5) Sayyid Muhammad Hussain Borujerdi in al-Badr al-Zahir fi salat al-Jum’a, Page 71.
(6) Sayyid Muhammad Reza Gulpaayigani in ‘al- Hedaya ela man Lahu al-Wilayat, Page 46.
Multiplicity in Wilayat
Although according to Imami political doctrine, authority (Wilayat) is bestowed upon a deputy (Wali) by the infallible Imam, there is an important distinction between the specific designation of a deputy and the ‘general’ designation of a number of deputies.
While there was an explicit nomination for each of the Imams to undertake leadership, and for the vicegerency of the four deputies during the minor absence, the guardianship of the jurists during the greater absence is a ‘general’ designation. This means that no faqih is exclusively appointed as ‘Wali’ and deputy; all Imami jurists who are just and qualified in fiqh (ijtihad) have the right to exercise the Imam’s authority as his deputies. Accordingly, universal authority has been entrusted to many jurists in every age and generation. Inevitably, this multiplicity means that the Imami theory of leadership could be confronted by the problem of disturbances and conflict, as polarization between various sources of decision-making naturally results in differences and chaos. In the context of the present discussion, it is important to assess how the universal theory of guardianship might address such issues.
In most cases, multiplicity does not present any serious problem regarding the functions of the fuqaha. It is unrealistic to insist that all cases of ‘hisbah’ need to be undertaken by a single jurist. Likewise, there is no reason to expect uniformity in ‘Marja’aiyya’ and the administration of justice. The fundamental difficulty arising from multiplicity, however, is that of political authority and leadership (Wilayat al-siyasiyya).
The best way to approach this concern is to consider the status of the fuqaha who are entitled to political authority. Wilayat al-Faqih defines the criteria required of a ruler, and maintains that anyone who fulfils these qualities has the right to govern. In principal, authority (Wilayat) does not demand any extra conditions. However, to be practically applied such authority requires suitable political circumstances and the recognition of the people. According to Imami doctrine, if Muslims appoint a just and capable jurist as their leader, then other fuqaha are obliged to support him and obey his orders, so long as he fulfils the qualities of Wilayat. This situation is comparable to the relationship between judges; when one is responsible for a specific case, though other judges are entitled in principal to perform the same role, they have no right to interfere in his judgment. Shi’a traditions discuss the appointment of the fuqaha as deputies of the Imam, but they do not endorse or design a particular method to acknowledge or elect one or more jurists who possess the Wilayat. Article 107 of the constitution of the Islamic Republic of Iran, suggests the following process:
The task of appointing the leader shall be vested with the experts elected by the people. The experts will review and consult among themselves concerning all the religious men possessing the qualifications specified in Article 5 and 109. In the event they find one of them better versed in Islamic regulations or in political and social issues or possessing general popularity…they shall elect him as the leader.
The Dominion of the Wali al-Faqih
When considering that Wilayat al-Faqih represents the keystone of Imami political doctrine in the Era of Greater Occultation, it is essential that we assess the scope and domain of its authority. For our present subject, we must take into account the power of other religious authorities amongst the Imamis; the marja’ai. Does the Wali al-Faqih have authority (Wilayat) only over those who accept him as their marja’a, or those who imitate marja’ai that support the idea of Wilayat al-amma?
Aside from the relationship between the Wali al-Faqih as a political leader and other fuqaha as marja’ai, it is also important to gauge the authority of the Wali al-Faqih regarding the Shari’ah. Is he only able to issue orders within the framework of the Islamic legal system, or is he fully authorized to make decisions even if they contradict the Shari’ah? In other words, is his license as a ruler defined by the Shari’ah, or is his authority above the Shari’ah and therefore absolute?
We can structure our analysis around two significant aspects; the people’s respect for his orders, and his respect for the Islamic legal system (Shari’ah). However, before proceeding with this discussion, we should review two important points.
Firstly, unlike Imamate, which is considered as a fundamental aspect of belief (aqueeda) in Shi’ism, Wilayat al-Faqih is a juridical (fiqh) subject matter. What distinguishes a fiqhi discussion from a theological (kalam) one, is that while the latter concerns issues of belief (disagreement upon which would render an individuals belief imperfect), the former is legal and thus subject to divergence of opinion even amongst the scholars of a particular Islamic sect (as disagreement in these issues does not invalidate belief). Hence, there can be disagreement on the universal authority of the jurist, as a juridical (fiqh) discussion and such disputes are not concerned with faith (iman).
Secondly, a necessary distinction must be made between a fatwa (religious decree) and hukm (order). As previously stated, a decree, deduced from Islamic sources and issued by a qualified faqih – fatwa – is valid and reliable for those who refer to him as their marja’a taqleed (religious authority), thus it is binding upon them to obey his fatwa. However, those who refer to other scholars as religious authorities are not obliged to observe this ruling. But an order (hukm) issued by the Wali al-Faqih is binding upon all Muslims, not merely his followers, regardless of how far his political authority might reach. Therefore, a command issued by a jurist as Wali al-qada in the administration of justice is obligatory for everyone, even other fuqaha, because the just and capable jurist is appointed as hakim (Wali). This opinion is supported by a tradition from Imam as-Sadiq (pbuh), in which Umar ibn Hanzala transmits that the Imam prohibited his followers (Shi’a) to recourse to a tyrannical or illegitimate authority (taghut) to resolve their affairs. Instead they are obliged to refer to one who relates the traditions of the Ahlul-Bayt and knows what is lawful and prohibited (i.e. a faqih). Imam as-Sadiq (pbuh) said:
I have appointed him a hakim over you. If such a person orders (judges) according to our ruling and the person concerned does not accept it, then he has shown contempt for the ruling of God and rejects us; and he who rejects us, actually rejects Allah and such a person is close to association [Shirk] with Allah[57].
In this tradition, Imam as-Sadiq (pbuh) addresses the role of a just faqih (hakim) who has been entrusted with authority by the infallible Imam. According to this hadith, the people are not allowed to recourse to an illegitimate or oppressive authority for the resolution of their problems. Instead they are required to refer to the Wali (hakim) and obey his decisions, regardless of whether or not he is their marja’a taqleed.
Such as solution, however, hardly seems convincing for those who do not accept Wilayat al-amma. One might argue that the Wali al-Faqih issues commands (hukm) based upon his own opinion (fatwa) that the authority of the jurist is universal (Wilayat al-amma), while according to the view of another marja’a the scope of a jurists authority is limited and he is not designated to undertake political affairs. According to this view, the tradition of Umar ibn Hanzala and others do not include these kinds of orders.
However, this reasoning presents obvious problems that extend far beyond the governmental orders (hukm) of a jurist. For instance, when administering justice (Wilayat al- qada) a faqih issues an order according to his own religious decree (fatwa), however there is no excuse for people to disregard or disobey his command on the grounds that he is not their marja’a. This is because the authority to judge (al- qada) and the authority to issue decrees (al-ifta) are independent of one another, thus the role of the judge cannot be infringed by the edict of a marja’a (as the marja’a is not the judge of that legal case). Furthermore, although the opponents of Wilayat al-amma maintain that the designation of the faqih as the Imam’s deputy does not extend to political authority (Wilayat al-siyasiyya), this surely cannot imply that if the people elect a just and capable faqih as their leader, instead of an unjust person, that his leadership is some how illegitimate and people are free to disobey. We will return to this point in the next chapter when examining the authority of a faqih endorsed by ‘hisbah’.
We noted earlier that the debate surrounding the authority of the Wali al-Faqih has two significant aspects. The second of these – the relationship between the faqih’s commands and Shari’ah – is a very new discussion in Imami political jurisprudence, whereas the first aspect has been discussed by many fuqaha. Imam Khomeini was perhaps the first Imami faqih who explicitly and publicly discussed the connection between governmental orders (ahkam al-hukmati) and Islamic laws (ahkam al-shari’). He firmly advocated the absolute authority of the faqih (Wilayat al-mutlaqa) and it is essential that we briefly clarify the definition of this term to avoid any misconceptions.
Al-Wilayat al-Mutlaqa
When one first encounters the idea that a jurist has an unlimited and absolute scope of authority (Wilayat al- mutlaqa) in issuing governmental orders, it is easy to dismiss the model of political regime as “absolutism”, which is defined in the Oxford political dictionary as follows:
Originally (1733) a theological concept referring to God's total power to decide about salvation. Extended to politics indicating a regime in which the ruler might legitimately decide anything. Usually applied to monarchical regimes of the early modern period[58].
This misinterpretation often leads to the false assumption that there are no controls, restrictions or limitations upon the powers of the faqih; his authority is unquestionable and he can exert himself without regard to the demands of the Shari’ah or the interests of his people. He has no duty to respect the various kinds criteria and standards for his governance.
This is similar to a dictatorial model of government, which is an absolute rule unrestricted by law, constitution or other political, religious or moral factors within the society and state. Clearly this interpretation of absolute authority is not correct even when considering the Prophet (pbuh) and the Infallible Imams. A faqih as Wali must meet certain criteria, one of which is justice.
The above conception of Wilayat al-mutlaqa obviously contradicts the idea of justice and such a person has no legitimate authority (Wilayat) over believers. The precise and correct understanding of ‘Wilayat al-mutlaqa’ has a close relationship to discussion about the nature and various kinds of ‘command’ (hukm) in Imami Jurisprudence, especially the faqih’s injunction as Wali (al-hukm al-hukmati) and its position among commands of Shari’ah.
i) Divine Laws (Al-Hukm as-Shari’)
This refers to a set of rules and commands legislated by God and expressed to people through the Prophet Muhammad and his successors. Hukm al-Shari’ is usually divided by Muslim Jurists into two divisions. The first part is called ‘al- ahkam al-taklifi’ which is the laws of duty and in turn divides into five divisions (obligation, prohibition, desirability, undesirability and permissibility or ‘mubah’). The second part is called ‘al-ahkam al-waz'i’ which establishes specific relationships and situations (waz') that are subject to particular divine laws. For instance, marriage, ownership, purity and uncleanness are all situations that the Islamic legal system endorses and defines in particular matters and circumstances - usually al-hukm al-waz'i is subject to particular laws of duty. Divine laws also are called the first order laws (al-ahkam al-aWaliya) because deeds and things by themselves - with no regard to temporal and unexpected accidents - are subjects to these laws and legislation of Islam.
ii) The Judge's Command (Al-Hukm al-Qadi)
Even though the legal decision of Judge (faqih) is issued with consideration of the Shari’ah and decrees of Islam, it is not a component of the Shari’ah. The judge’s role is merely the execution (tanfidh) and application of Islamic law to juridical cases. In administration of justice, the faqih as Judge does not deduce Islamic laws rather he attempts to apply the most appropriate laws to the situation.
iii) Governmental Orders (Al-Hukm al-Wilai)
Supporters of universal authority (Wilayat al-amma) do not restrict the orders (hukm) of the faqih to merely the administration of justice. As a hakim, the jurist may issue orders and it is incumbent upon all Muslims, even other fuqaha, to obey them. These include his edicts concerning the beginning of Ramadhan or the application of legal penalties (hudud). The best examples of orders that fall into this category are the governmental commands that the faqih may issue as the political leader of a society. The Wali al- faqih may issue orders regarding situations that he recognizes as affecting the interests of Islam, Muslims and Islamic laws and values. A situation may arise in which the Wali al-Faqih can issue an order based on the interest (maslahat) of the people, even though in principal the action would not otherwise be compulsory in Shari’ah.
Two crucial questions arise regarding these orders. The first concerns the nature of the order; whether the governmental command is categorized as the ‘first order’ of the Shari’ah, or as the ‘second order’ (al-akham as-sanavy). The second question concerns the scope of such orders. A faqih may issue an obligatory or prohibitive order regarding matters that are considered permissible (mubah) and for which there is no prior obligation (for doing or not doing it) in Islamic law. However, a dispute arises about whether or not the faqih may issue orders that disregard the commands of the Shari’ah. Since the answer to the latter of these questions emerges from the former, it is necessary to explain what we mean by ‘second order’ commands (akham as-sanavy).
iv) Al-Hukm al-Awaly and al-Hukm al-Sanavy
The actions that we commit according to our free will are subject to one of the following categories in Shari’ah, namely obligation (wajib), prohibition (haraam), desirability (mustahab), undesirability (makruh) and simple permissibility (mubah). These ‘first order’ laws (al-ahkam al-awaly) are determined by the law giver (hakim) upon considering the essence and natural status of deeds and things. However, in exceptional situations and under circumstances in which people should not or cannot respect previous legislations, new rulings must be issued. These temporal laws are legislated according to the demands made by exceptional situations, and are called laws of 'the second order'(al-ahkam al sanavy).
They are secondary and temporal because people must revert to obeying the first order laws as soon as the exceptional circumstances return to normal. For instance, according to Shari’ah it is not permissible for Muslims to eat “carrion” (dead animals) or the meat of animals not ritually slaughtered. It is a first order command, but in a dire situation when a person has nothing to eat at all, God permits him or her to eat such meat, this permission is a second order law. The Qur’an says:
He has only forbidden you what dies of itself, and blood, and flesh of swine, and that over which any other (name) other than (that of) Allah has been invoked, but whoever is driven to necessity, not desiring, nor exceeding the limit, no sin shall be upon him. [Chapter 2, Verse 173]
Fuqaha usually cite ‘necessity’ (ezterar), damage (zarar), distress and constriction (usr wa haraj), disorder of the Muslim's system (ekhtelal al-nidham) and compulsion (ekrah) as the major exceptional topics that demand and require second order laws, as reasons for reverting to laws of ‘the second order’. The prevailing conception amongst Imami Jurists emphasizes that the governmental orders should be issued by the faqih only in one of the aforementioned exceptional situations because al-hukm al- hukmati is but a second order command.
When we consider this opinion, the answer to the second question – which is the relationship between governmental order and Shari’ah - is very clear. In a normal situation, the faqih has no right to issue orders in opposition to obligatory (either haraam or wajib) first order laws, even if the interests (maslahat) of the Muslims demands thus. In other words, interest as such cannot justify governmental orders when they are on the contrary with Islamic obligatory laws.
However, situations in which the interest (maslahat) becomes so serious that ignorance of it could cause significant damage, distress and constriction or disorder, would allow the Wali al-Faqih to issue these orders.
Ayatollah Khomeini, in a revolutionary view, stated that although the implementation of Shari’ah is very important, it is not the ultimate goal. Islamic laws (Shari’ah) serve as a means to achieve the primary aim embodied in the protection of Islam and the extension of Justice. For him the Islamic State is not merely one part of Islam amongst others, but it is Islam itself. Consequently the significance of Islamic laws is overshadowed by the significance of protecting the Islamic system and the interest (maslahat) of Islam. He expressed the view during his lectures in Iraq - the seminary of Najaf - years before the Islamic Revolution in Iran.
After the Islamic Revolution in Iran he explored this view more explicitly. In his famous letter to Ayatollah Khamenei (the current Wali al-Faqih), he insists that the authority of the Prophet and Imams to govern is not only a first order divine law but also it has priority over others such as praying, fasting, Hajj and so on. He writes:
The government or the absolute guardianship (al- Wilayat al-mutlaqa) that is delegated to the noblest messenger of Allah is the most important divine laws and has priority over all other ordinances of the law. If the powers of the government restricted to the framework of ordinances of the law then the delegation of the authority to the Prophet would be a senseless phenomenon. I have to say that government is a branch of the Prophet's absolute Wilayat and one of the primary (first order) rules of Islam that has priority over all ordinances of the law even praying, fasting and Hajj...The Islamic State could prevent implementation of everything - devotional and non- devotional - that so long as it seems against Islam's interests[59].
Unlike conditional authority (Wilayat al-muqayada) that restricts the right of the faqih for issuing governmental orders solely in permissibility cases (mubahat), Wilayat al- mutlaqa, by definition, is a juridical view concerning the dominion of the just faqih to issue governmental orders even if it is in opposition with some obligatory Islamic laws.
As has become clear from the current discussion, the meaning of Wilayat al-mutlaqa is totally different from ‘absolutism’ and the establishment of a totalitarian and dictatorial government. Some qualifications and conditions are essential for the Wali al-Faqih such as justice, piety and the necessary socio-political perspicacity. So, if he fails to meet one of them, he will be dismissed. In the constitution of Islamic Republic of Iran a group of experts elected by people supervise and control the leader. This constitution in article 111 says:
Whenever the leader becomes incapable of fulfiling his constitutional duties, or loses one of the qualifications mentioned in Article 5 and 109, or it becomes known that he did not possess some of the qualifications initially, he will be dismissed. The authority of determination in this matter with the experts specified in Article 108.
As I indicated before, in Imami Political Jurisprudence ‘Wilayat al-mutlaqa’ is a new term. Imami fuqaha usually use other terms such as ‘Wilayat al-amma’ and ‘neyabat al- Amma’ to refer to the authority of faqih. Imam Khomeini applied the term publicly, then in 1990 it was enshrined in the constitution of Islamic Iran. Article 57 says:
The power of government in the Islamic Republic are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the absolute religious leader and the leadership of the ummah.
Wilayat al-Faqih and other Ideas of Guardianship
Perhaps Plato was the first political theorist who presented a comprehensive guardianship model of government. In the ‘Republic’, he states that political knowledge is a supreme art that aims to realize the good of the community. Attaining that knowledge requires serious training. Thus, men and women must be carefully selected and rigorously trained in order to achieve excellence in the art and science of politics. This serious training renders a few of them a class of ‘true philosophers’[60], who deserve to rule the society.
Therefore, the ideal Republic will come into existence if a class of guardians (Philosopher Kings) rules over it.
In the history of political thought, various interpretations of the guardianship model of the State have been suggested, Marxist-Leninism and all the political ideologies which believe in an organized group of revolutionaries, a vanguard, who possess the sufficient knowledge and commitment to overcome capitalism and to lead the working class to establish a socialist and non-class society are samples of the guardianship political theory.
Obviously, Shi’a political doctrine should be categorized as a guardianship model of government because it believes that only those who have specific qualifications (infallible ones or their deputies) have a right to govern the community. For Imamism the problem of leadership is not the question of people’s elections. People have to accept and believe in divinely designated leadership just like the Prophecy in order for it to be practical. Since the fuqaha are generally designated as guardians, the role of the people within the period of occultation increases. They have a duty to acknowledge their governor among the fuqaha directly or through a selected group of fuqaha. Nevertheless, this participation of people does not render Wilayat al-Faqih a purely democratic and non-guardianship theory of State. Robert Dahl is quite right when he states that:
No single interpretation can do justice to the variations among the many different visions of guardianship[61].
However, what he mentions at the beginning of his discussion could be recognized as the central point of the vision of guardianship:
The assumption by democrats that ordinary people are qualified, they, (advocates of guardianship) say ought to be replaced by the opposing proposition that rulership should be entrusted to a minority of persons who are specially qualified to govern by reason of their superior knowledge and virtue[62].
Indeed, the theory of ‘Wilayat al-Faqih’, which is in embodied in the Islamic Republic of Iran, as the first actual experience of Shi’a political ideology, is mixed between guardianship and democracy. While the authority of the faqih and the supervision of Islamic laws and values over all political and social functions of the government emphasise the guardianship dimension of this political system, the approval of representative democracy and the participation of people in electing members of the Assembly of Experts (who choose and can remove the Wilayat al-Faqih’), parliament, president and many parts and local
councils, show the democratic aspect of this political ideology. Article56 of the constitution emphasizes people’s sovereignty:
Absolute sovereignty over the word and man belongs to God, and it is He who has made man master of his own social destiny. No one can deprive man of this Divine right, nor subordinate it to the vested interests of a particular individual or group. The people are to exercise this Divine right in the manner specified in the following Article.
This chapter aimed to clarify the conception of Wilayat al-faqih and its historical background amongst Imami jurists. The next chapter will concentrate on the problem of justification and examine how the advocates of this political theory legitimize it.
Notes:
[18] Abdul-Karim Shahrestany, Al-Melal wal-Nehal, Cairo, 1956, volume 1, p. 131.
[19] Antony Black, The History of Islamic Political Thought, p. 41.
[20] Ruhollah Khomeini, Islam and Revolution, Hamid Algar (tr), Berkeley: Mizan Press, 1981, p. 86.
[21]Lewis writes: ‘vali and vilayat are the Turkish pronunciation of the active participle and verbal noun of the Arabic root w-l-y, ‘to be near’ and hence ‘to take charge of’; they mean respectively, governor, and governorship or province’. Bernard Lewis, The Political Language of Islam, The University of Chicago Press, 1988, no. 22, p. 123.
[22]For more information about the verse and some debates that have arisen by the verse among Shi’a and Sunni scholars refer to: Abdul Husayn Sharafud-Din, Al-Muraja’at, Yasin T. al-Jibouri (tr), World Ahlul Bayt Islamic League (WABIL), pp. 173-180.
[23] Montgomery Watt, Islamic Political Thought, pp. 32-33.
[24] Ibn Assir, Al-Nehaya, Volume 1, p. 315
[25] Montgomery Watt, Islamic Political Thought, p. 33.
[26] Antony Black, The History of Islamic Political Thought, p. 84.
[27] Antony Black, The History of Islamic Political Thought, p. 87.
[28] The paragraph is translated in: Ann K. S Lambton, State and Government in Medieval Islam, Oxford University Press, 1981, p. 85.
[29] Bernard Lewis, The Political Language of Islam, p.134.
[30] Antony Black, The History of Islamic Political Thought, p. 94.
[31] Antony Black, The History of Islamic Political Thought, p.88.
[32] Antony Black, The History of Islamic Political Thought, p.104.
[33] Antony Black, The History of Islamic Political Thought, p.85.
[34] Abdulaziz Sachedina, The Just Ruler, Oxford University Press, 1988, p. 129.
[35] Muhammad Baqer Majlesi, Behar al-Anwar (110 volumes), Tehran, 1985, Kitab al-Elm, Chapter 1, Hadith 29.
[36] Muhammad ibn Muhammad ibn al-Nu’man, known as Mufid is one of the greatest Imami faqih and theologian. He was born in Dujal, some sixty miles from Baghdad, in the year 949 or 950AD. His basic and elementary training and studies was under his father. He went to Baghdad at the age of twelve. Among his books in fiqh is al-Muqni’a, on which Tusi wrote a commentary-Tahdhib al-Ahkam (one of the four major books of Imami Shi°ism).
[37] Shaykh Al-Mufid, Al-Ershad, Tehran, 1972, p. 674.
[38] Muhammad ibn Hassan Tusi, Al-Mabsut fi Fiqh al Imamiya, Tehran, 1958, Volume 2, p. 9.
[39] Abdulaziz Sachedina, The Just Ruler, p. 110.
[40] Mehdi Haery Yazdi, Hekmat wa Hokumat, p. 177.
[41] Islam and Revolution, pp. 62-63.
[42] Ali ibn Abd al-A’l who is better known as Muhaqqiq al-Karaki or even the second Muhaqqiq-researcher- (after Helli who is famous as the first Muhaqqiq in fiqh) died in 937/1530. He was originally from Jabal Amel, south Lebanon. He like the first and the second shahid (martyr) completed his studies in Sham and Iraq and different centers of Sunni learning before coming to Iran during the reign of the Safavid denasty (Shah Tahmasb). In this period of Iran‘s history the authority of Imami scholars had been increased and Karaki had a great status in administration of justice. He established a great seminary (Hawza) in Qazvin and Isfahan consequently Iran once again became center of Imami jurisprudence. One of his famous books in fiqh is ‘Jame ul-Maqasid’ which is a commentary on the book of Allama al Helli-Qawaid.
[43] The articles (al-Rasayel) of Mhaqqiq al-Karaki, edited by Muhammad al-Hassun, the first collection (Al Ressala fi al-Salat ul-Jom’a), Qom, 1409AH, pp, 142, 143.
[44] He was of Arab descent and died in 1849. Shaikh Muhammad spent thirty years to complete his great work (al-Jawahir) which the last print of the book in Iran includes forty three volumes. It is a commentary on the book of Muhaqqiq al-Helli (al-Sharay‘).
[45] Muhammad Hassan, Jawahir al-Kalam, Tehran: Dar al-Kotob al- Islamiya, 1398AH, Volume 21, pp. 396-397.
[46] Died in 1904 the author of some significant books in Imami jurisprudence such as ‘Mesbah al-Faqih.
[47] Hajj Aqa Reza Hamedani, Mesbah al-Faqih, The Chapter of Khums, Volume 14, p. 291.
[48] He is Muhammad the son of Allama Helli. His famous book on fiqh is ‘Eidhah al-Fawaid’ which is a commentary of his father ‘s book (al- Qawaid). He died in 771AH.
[49] Fakhr al-Muhaqqiqeen, Eidhah al-Fawaid, Volume 2, p.624.
[50] Al-Jami ul-Maqasid, Volume 11, Kitab ul-wasaya, pp. 266-267.
[51] Shaikh Hur al-A’meli, Muhammad ibn Hassan, Wasael al-Shi°a, Qom: Ahl ul-Bait Institution, 1412 AH, Volume18, p. 220
[52] The Just Ruler, p. 196.
[53] He is Muhammad ibn Makki who was born in south Lebanon-Jabal Amil- in 734AH. Fakhr ul-Mohaqqeqin was one of his teachers. He was martyred as a result of a fatwa issued by a Maliki jurist, supported by Shafei, in the year 786.He has written some significant books in fiqh such as ‘Luma’h’, ‘Durrus’, ‘Dhikra’ and ‘Bayan’.
[54] Translated in ‘The Just Ruler’ from Jawaher al- Kalam, Volume 15, p. 422.
[55] Shaikh Zain ul-Din is one of greatest Shi°a jurists. He was born in 911 AH and was expert in Sunni jurisprudence as well. One of his important works is a commentary on the first Shaheed’s work (Luma’h) and it is a strange coincidence that the author and the commentator both were executed and martyred.
[56] Translated in ‘The Just Ruler’ from Jawaher al- Kalam, Volume 15, p. 422.
[57] Muhammad ibn Hassan al-Tusi, Tahzib al-Ahkam, Kitab ul-Qad’a, Volume 6, p. 218, Hadith 514
[58] Iain McLean, The Concise Oxford Dictionary of Politics, Oxford University Press, 1996, p. 1.
[59] Sahife’ Noor (letters and lectures of Ayatollah Khomeini), Volume 20, p. 170.
[60] Grube maintains that Plato does not mean by ‘philosopher king’ the professional sense that at present the word ‘philosopher’ purport, he says: ‘Plato does not mean that the world should be ruled by pale metaphysicians from the remoteness of their studies, he is maintaining that a statesman needs to be a thinker, a lover of truth, beauty and the Good, with a highly developed sense of values’. Plato, Plato’s Republic, G.M.A. Grube (tr), Indianapolis, 1974, n 13, p.133.
[61] Robert Dahl, Democracy and its Critics, Yale University Press, 1989, p 55.
[62] Robert Dahl, Democracy and its Critics, Yale University Press, 1989, p. 52.

Author: Ahmed Vaezy
Source: al-islam.org

Islam’s capability of meeting all human needs

After proving that Islam has social laws and decrees, certain skeptical questions are raised: Is it rationally possible for all human needs in different eras to be contained in a single set? Can Islam whose sources are the Qur’an and authentic traditions, encompass all the elements needed by mankind throughout the different epochs and periods? The above questions have both theoretical and practical aspects and can be examined in both ways. Of course, it must be acknowledged that these questions are worthy of consideration. At the outset, it seems that answering them is not easy. However, in view of the explanations we have presented before, replying is not that difficult.
1. Examining the theoretical dimension of questions
The reply to the theoretical dimension of the question, “How can a set of laws be responsive to all human needs in all aspects of life?” is this: Certainly, human beings cannot enact a set of perfect laws for mankind in different epochs and periods because on account of their defective knowledge and intellectual limitation, they cannot examine all the facets and dimensions of human life and take into account an appropriate law for every case.
However, the One who has created human beings, knows “what was” [ma kana] and “what will be” [ma yakun], to whom yesterday, today and tomorrow are the same, is Omniscient of thousands of years before and after, it is possible to enact such a code of laws. Thus, it cannot be said that it is impossible to enact a code of perfect laws for all humanity throughout history that encompasses all aspects of human life, because the One who has full knowledge of the past and future and is well informed of all dimensions of man’s existence throughout history can do so.
2. Examining the practical dimension of questions
The practical dimension of the questions is this: “How can the essential elements attributed to God as mentioned in the Qur’an and authentic traditions—given their limited magnitude—meet all human needs throughout these epochs and periods?” The reply is this: It is impossible for us to present a specific law for every case in which all particular conditions of time and space are perfectly observed. This is because legal cases do not need limited laws. They favor laws of a general nature.
We cannot determine all legal cases as special and definite cases. It can thus be said: “Innumerable cases do not have innumerable categories.” Every set of these cases can have a general heading and the said heading can have a specific decree. So, “The general decree is fixed and limited but its cases are innumerable and varied.”
A case at a particular time may consist of a decree and assume a different form in a different time and condition and the ruling for it may change. So, issues and changes that take place in them are diverse and numerous, but the limited general headings are fixed. It is true that the aspects of human life are vast and regularly increasing on a daily basis. With the advancement and progress of human civilization and social living, new issues and concerns emerge all of which are in need of specific laws which address all needs. Yet, all these variable laws can have specific criteria. With the permission of the One who has sent down the general laws and taught their general criteria, those who recognize these criteria in fixed expressions can enact specific laws on specific cases.
By saying that the laws of Islam must be implemented in society, we do not only mean laws directly revealed by God in the Qur’an because these laws in the Qur’an are mentioned in general and absolute terms. What we mean is that the Prophet (s), the infallible Imams (‘a) and those who are acquainted with the spirit of these laws, are well-informed of the criteria and can distinguish the general laws from particular cases and determine the manifestations, ways of application and rulings of these general divine laws.
Author: Muhammad Taqi Misbah Yazdi
Source: Imam reza network

Islam and Theory of Separation of Powers

In this session our discussion is about the structure and form of the Islamic government. Along this line, I deem it proper to narrate a recollection from the Great Leader of the Islamic Revolution in Iran, Hadhrat Imam Khomeini (q). During the beginning of the Revolution foreign reporters asked the Imam, “After overthrowing the monarchical government, what government and regime will you establish?” He replied, “A government like that of the Commander of the Faithful (‘a)”.
Defining and describing the Islamic government to reporters with a particular culture and social fabric and no mental preparation to grasp Islamic concepts in view of their fundamental differences with us in this context, required many hours. Yet, the Imam gave them a complete and convincing answer in one sentence, because by knowing the distinctive features of the government of the Commander of the Faithful (‘a)—which is known to both friends and foes, and to know which does not require much extensive study and examination—the model of our government could also be known.
This type of explanation and definition, i.e. evidential definition, is the simplest way of describing the nature of a thing to the masses because understanding intricate concepts is difficult for them, so by indicating external manifestations and samples, they understand better. For example, in order to explain electricity, we show them an electric light or an electric device. In this type of definition, the characteristics, properties and salient features of a thing are not mentioned. In the academic and scientific circles, however, the definition must be derived from the principal or secondary features which describe the genus and quality mentioned in logic. In this kind of definition, initially the general and broad meaning is mentioned and then the specific meaning that excludes other types.
Another way of identifying the nature of a thing is to consider the elements. That is, the essentials and features of a thing are examined and their totality serves as the definition of that thing. In view of the number and scope of the essentials and features, any person will conclude that any thing having those features has the nature under consideration.
The macrostructure of the Islamic government and its basic features, or the Islamic theory on politics can be defined in one sentence. The Islamic theory on politics is: all aspects of politics and government are divine, and inspired by the Source of revelation. This point determines the Islamic nature of the system and government.
In describing comprehensively the Islamic government it is necessary to consider the theory of separation of powers mentioned in the philosophy of law. During the last centuries there were intense disputes and conflicts among legal philosophers over concentration or separation of powers. These were on whether all powers should be in the hands of an individual or group, or powers should be separated from one another and every person or group should be concerned with only one power.
Finally, after the Renaissance, particularly after Montesquieu—who wrote a major treatise entitled “The Spirit of the Laws” (1748) in which he emphasized separation of powers—legal philosophers arrived at a consensus on separation of powers and their three divisions, viz. the legislative, the judicial and the executive. These were considered as the main branches of democratic and popular governments.[53][81] For each of the powers a distinct realm and area was taken into account so that none of the powers was authorized to interfere and meddle in another’s domain and their independence officially recognized. After the separation of powers, a definition was presented for each of them. We shall briefly mention their functions below:
1. Legislative power
One of the important pillars of government is the legislative. In view of the continuous change in social life and the need to formulate appropriate laws for every change, a group of individuals sit together, and, after discussion and deliberation, enact laws and regulations for the management of society, which are official and binding.
2. Judicial power
After the codification of laws and their official recognition and accreditation, there is a need to consider a branch of government and apparatus to adapt general laws to particular cases, to identify rights and duties, and to remove differences and disputes. In case of a dispute among citizens, or among organs, or between the citizens and the government, as well as in relation to the violation of the rights of people, the only authorized agency to adjudicate, attend to and adapt laws to those cases is the judicial power. Mere ratification of laws in parliament cannot solve any problem, because in times of dispute and discord, everyone deems himself rightful and interprets the law in his favor.
3. Executive power
Undoubtedly, In order to achieve its objectives, society is in need of law, but all people do not observe the laws. In fact, there are various motives to violate them. The law needs an executive power which possesses sufficient clout to implement the rules and regulations. The executive power is expected to implement laws, deter violations and implement judicial decrees passed in judicial courts. Along this line, if naked force is needed to implement laws and punish violators and criminals, disciplinary forces can be employed.
We briefly stated the theory of separation of powers in democratic and popular systems. We do not intend to explain the Islamic viewpoint on the theory of separation of powers but we deem it necessary to note that in the Constitution of the Islamic Republic of Iran, the principle of separation of powers has been accepted, while the principle of wilayah al-faqih, which emanates from the Islamic nature of the system, serves as the point of connection between the powers. Legitimacy of powers in the Islamic system lies in the Islamic and divine structure, and in a sense in their connection to the Origin of creation, but wilayah al-faqih is the system’s link to God and its basis of legitimacy.
Once we talk about the enactment and implementation of laws in the realm of Islamic political system and claim that the aggregate of approved laws and rules should be Islamic and religious, we make it clear that Islam is concerned not only with issues pertaining to prayer and fasting, worship and supplication, but it is a comprehensive code of life that embraces social law, corporate law, civil law, commercial law, international law and other laws needed by society.
Thus, as principle and rule, we have accepted that Islam has social laws that bind the government to regard them as credible and strive to implement them. According to Islam if a government neither regards the laws of Islam as credible, nor strives to implement them, it is an illegitimate government.
Skepticism on alleged impotence of Islam in social administration
Here the expressed skepticism is that man is increasingly in need of ample new laws. Indisputably, in the text of the Qur’an, the Sunnah of the Prophet (s) and the sayings of the pure Imams (‘a) not all the laws addressing the needs of the day can be found. Nowadays, man needs a set of laws whose subjects did not exist during the early period of Islam, for which specific rulings need to be issued.
For example, let us consider the laws pertaining to airspace and the air jurisdiction of countries. Does an airplane have the right to enter the air jurisdiction of another country with the permission of its authorities or not? Such laws basically do not exist in the Qur’an, the Prophet’s Sunnah and sayings of the Ahl al-Bayt (‘a) because at the time, there was no airplane to be discussed.
The same applies to traffic and driving rules as there was no car at the time as well as laws on seas and outer space and other subjects and there is a need for legal experts and legislators to enact appropriate laws for them after thorough examination and contemplation.
Given the fact that the said laws that address all needs of society do not exist in the Qur’an and the Sunnah, how can it be claimed that Islamic and divine laws must be implemented in society when in fact Islam has no law in so many areas?!
Society is in dire need of such laws, which we cannot find in Islamic sources. What options do we have? How can we consider ourselves as bound by Islamic laws?
What has been mentioned made those who have no faith in Islam express skepticism in religious laws as impractical and insufficient to administer society, and suggest more efforts be exerted on enacting and implementing man-made laws. In order to portray the subject as confusing and complicated, they expressed the above skepticism in various forms, and people also exacerbated it for different motives.
Undoubtedly, their goal is to undermine the Islamic government and to inculcate the notion that Islam cannot administer society. Therefore, the plant if the Islamic Revolution and Islamic government and emphasis on it is futile and the idea of “Islamization” of the government should be forgotten, because it is not feasible. Unfortunately, some sympathizers of the Islamic Revolution and followers of Islam have also been influenced by this skepticism. It is necessary to present an appropriate reply so that, they remain faithful to Islamic laws, and find solutions to cases in which society needs a law which has no precedence in Islamic sources.
Types of laws and necessity of enacting variable laws
In reply to the above skepticism, it is necessary to explain at the outset that law has a general and broad meaning which also includes natural laws such as laws on physics, Lavoisier’s[54][82] law on chemistry, Newton’s law of gravity and Einstein’s law of relativity. This group of laws that exist in nature and can be empirically proved are discovered by scientists and are not enacted. These fixed and actual laws are related to natural phenomena, and have nothing to do with legal, political and social laws.
Similarly, we are not referring to rational laws such as laws on logic, philosophy and mathematics. We are referring to enacted laws which are technically called “conventional laws” [qawanin-e i‘tibari]. Of these laws those that are credible and can be implemented, provided they are enacted by a credible authority, can be divided into three types:
1. The constitution
Constitution means a set of relatively permanent laws codified by competent authorities for a country in accordance with its culture and traditions. These relatively permanent laws are binding for a long period and considered as the basis and foundation of managing society. In view of their relative permanence and immunity from regular changes, these laws are general and limited; thus, the constitution of every country consists of some basic and important articles.
As such, in the constitution there is no room for detailed and specific laws which cover extensive and diverse needs, and are subject to amendment with the emergence of new circumstances. The Constitution is general and permanent in nature and detailed laws are not included in it except those detailed and limited laws which, on account of their importance and special status, give stability to it.
2. Laws ratified by parliament
The second type refers to the laws ratified in the Majlis or parliament. Since some countries have another house of legislation called senate or any other term, in addition to parliament, the laws ratified by the said house of legislation are also included in this type of laws. In our country, apart from the Islamic Consultative Assembly (Majlis) which passes bills needed to administer the country, the Council of Guardians, which is similar more or less to the Senate in other countries and to a constitutional court and consists of a group of jurists and legal experts, conforms the bills ratified by the Islamic Consultative Assembly with the Constitution and religious law. In case of inconsistency with the Constitution and the religious law, it refers these ratified bills back to the Majlis for review.
3. Laws ratified by cabinet
In addition to the laws ratified by parliament, in every country there are binding rules and regulations ratified by other organs, for example, the executive orders issued by the cabinet (executive branch). The constitution has rested authority to the cabinet to ratify laws in specific cases. Similarly, in certain cases the president can also personally take decisions. These executive orders and presidential decrees need not be submitted to parliament for ratification as they are automatically deemed legally binding. Also, bylaws and circulars approved by concerned authorities and officially communicated to offices and executive offices are also called laws and the government is bound to implement them.
Thus, in our country as in some other countries there are three types of laws: (1) constitutional, (2) legislative; laws ratified by the Islamic Consultative Assembly (Majlis) or parliament, and (3) executive orders, presidential decrees, bylaws and circulars approved by authorities legally authorized to do so.
At no time and nowhere in the world are these laws and bylaws ratified all at once; in view of changing circumstances, statutory laws and executive orders are amended and reviewed. Today, circumstances may require the Islamic Consultative Assembly to enact a law, and tomorrow circumstances may change and the said law might be amended and reviewed. In this manner, executive orders have to be amended and reviewed with change of circumstances. Also, when a new president assumes office, it is his prerogative to amend or annul previous executive orders.
Of course, those whose primary concern is the interest of society try their best to codify orders with utmost care to ensure that they are devoid of all possible errors. Naturally, when we say that the laws must be Islamic, it does not mean that all laws ranging from the Constitution to the statutory laws and executive orders must be explicitly derived from the Qur’an.
Meaning of Islamic nature of laws
In explaining the meaning of the Islamic nature of laws and orders, it is important to pay attention to the process of enacting common laws. For example, in codifying and approving bylaws and orders the cabinet or executive power must act within the perimeter determined for it by the Islamic Consultative Assembly and not go beyond it. In other words, the extent of the executive power’s prerogatives has been stipulated by the Constitution and the Majlis’s statutory laws, and the executive orders should be within this framework.
These orders should manifest the generalities reflected in the Constitution and the laws ratified by the Majlis. Thus, initially, generalities are described in the Constitution and statutory laws whose meanings the cabinet or the concerned authority in certain cases has to interpret within the framework of executive orders. The cabinet cannot act unconditionally on its own without any frame of reference. In fact, its executive orders must be within the framework of the Constitution and laws ratified by the Majlis.
The laws ratified by the Majlis, in turn, must be approved and endorsed by the Council of Guardians. That is, the Majlis must also act within the framework of the Constitution and in this way, its ratified laws will be considered credible, enjoying executive guarantee. Therefore, the credibility of executive orders and their being binding depend on their conformity with the Majlis’s statutory laws and the credibility of statutory laws means that they are within the framework of the conditional law of the country.
The credibility of the Constitution of the Islamic system is based on its consistency with the legislative will of God the Exalted. As such, the entire laws and decrees have a linear relationship and they are credible, provided that this hierarchy is observed in such a manner that it ends up in Islam and the legislative will of God. It is not in the sense that all the executive orders, circulars and statutory laws can be explicitly found in the Qur’an and the Sunnah.
Since God delegated certain prerogatives to the Holy Prophet (s) to promulgate specific laws and decrees in certain cases, these laws and decrees are credible and binding because they are based on the permission and will of God. It is obligatory to obey and act upon them on account of the decree of God on the necessity of obeying and following him. Under the aegis of this decree of God, the laws and orders promulgated by the Messenger of Allah (s) are credible and, at the same time, it is obligatory on others to obey and act upon them; otherwise, merely to obey the orders of the Messenger of Allah (s) without divine sanction is not obligatory.
So, the laws which God, the Exalted, has directly enacted and explicitly mentioned in the Qur’an occupy the foremost degree and are intrinsically credible. The laws enacted by the Holy Prophet (s) in certain cases by God’s leave occupy the next degree and their credibility is equal to that of God’s command. Similarly, the credibility of the laws which the infallible Imam (‘a) enacts and the orders he gives emanate from the decree of God because God and the Prophet (s) consider it obligatory to obey the Imam.
Now, assuming that we were living in an Islamic territory under the reign of the Commander of the Faithful (‘a), we would have considered it incumbent upon us to obey him. If the Imam (‘a) appointed a person like Malik al-Ashtar as the governor in our region saying, “Act upon his orders and do not defy them, for whoever obeys him actually obeys me,” the mere orders of Malik al-Ashtar would not be binding for the people because he was like other people, but obedience to him would have been obligatory and his orders binding because he was designated as governor by the infallible Imam (‘a) who, in turn, had been designated by God through the Prophet (s), and to obey him would be wajib.
However, laws and orders issued by a governor, designated by an infallible Imam, are considered laws of a third degree. As an analogy, the governor is like an appointed official whom the Islamic Consultative Assembly has granted powers on the basis of which he has authority to issue circulars and instructions, and on account of those delegated powers, his orders are binding. Similarly, the Majlis has acquired its credibility from the Constitution and its statutory laws acquire credibility under the auspices of the Constitution.
The credibility of the constitution in other countries emanates from the will of the people. But we believe in a higher station and reference with respect to the Constitution. We believe that the credibility of the constitution should emanate from the will of God, and the Prophet (s), an infallible Imam (‘a) or any person like Malik al-Ashtar, designated by one of the infallible Imams (‘a), has to endorse it. Therefore, the credibility of law should emanate from the words of God, the Prophet (s), an infallible Imam (‘a), and then any person designated by an infallible Imam. This is the logic and theory of Islam.
In the time of occultation [ghaybah] of the infallible Imam, since the wali al-faqih has been chosen through a general designation by the infallible Imam, his wilayah is endorsed by the Imam and acquired credibility, thus, his approval is the source of credibility of the constitution; otherwise, the constitution by itself is questionable. It is debatable as to where its credibility emanates from and who has the right to amend it. On what basis does a minority that has not voted for a certain law abide by it? And there are many other questions. However, when we say that this law has been declared credible by one formally designated by the infallible Imam, there is no room for any more questions.
Process of legislation in the Islamic government
It is clear in the theory of Islamic government that the original credibility of law comes from God, and the words of anyone, like the Prophet (s), who is credited by God, become binding. In turn, the words of anyone who is designated by the Prophet (s), or the Commander of the Faithful (‘a), are equally binding. Similarly, the laws and decrees issued by anyone who is designated by the infallible Imam (‘a) through a general or specific appointment shall be Islamic and sacred because they have been approved by God.
Of course, as we have said, in the Islamic government this approval may take different intervals. The credibility of approval of the wali al-faqih emanates from the approval of and endorsement by the infallible Imam (‘a) and the credibility of decrees and approval of the infallible Imam, in turn, emanates from the approval of and endorsement by the Prophet (s). Finally, credibility of the Prophet’s approval is confirmed through an explicit text [nass] of the Qur’an where God says:
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللّهَ وَأَطِيعُوا الرَّسُولَ وَأُوْلِي الأَمْرِ مِنكُمْ...
“O you who have faith! Obey Allah and obey the Apostle and those vested with authority among you...”[55][83]
and in another verse:
النَّبِيُّ أَوْلَى بِالْمُؤْمِنِينَ مِنْ أَنفُسِهِمْ...
“The Prophet is closer to the faithful than their own souls….”[56][84]
Thus, the aforementioned link has a perfectly logical foundation for the members of an Islamic society and those who believe in the truthfulness of God, the Prophet (s) and the infallible Imams (‘a). As we have expounded earlier, we have to talk on the basis of our audience’s convictions and beliefs and through their language. For this reason, if a person does not believe in God and in the truthfulness of the Messenger of Allah (s), or is doubtful of the infallible Imam (‘a), we need to discuss this issue in a different way.
Initially, we have to deal with the fundamental and essential principles of Islam, and then after proving them, tackle other subjects, including political and administrative issues, on the basis of those principles. Of course, this form of legislation, or the other usual forms can also be examined on the basis of their value for the benefit of society.
Legal status delegated in the Islamic government
In the Islamic political theory, besides the fact that all principles of law must be enacted by God, all laws and orders be approved by Him, the Messenger of Allah (s), an infallible Imam, or his general or specific successor, the implementer of the law also has to be designated by God to acquire credibility through this system of guardianship. (The judicial organ also has an executive function; it must be regarded a righteous reference authority in cases of disputes and differences and check the law prior to its implementation. Therefore, an independent and special status has been given to it.)
At the time when the Prophet (s) or an infallible Imam was present, he had to personally hold the reigns of government or designate someone to implement the law; for example, Hadrat ‘Ali (‘a) appointed Malik al-Ashtar as the governor of Egypt in order to implement the law there. However, in this period of ghaybah when the people have no access to the infallible Imam (‘a), the responsibility of implementing the law lies on the shoulders of the one who has been appointed by the infallible Imam through a general designation, and this will lead us to the theory of wilayah al-faqih about which we will discuss later, God willing.
It should now be clear that in Islamic political theory and administrative structure, just as the law should be linked to God, the implementer of the law should also be linked to God and be appointed by God either through a general or specific designation.
The judicial organ should be equally linked to God and the judge should be appointed by God either through direct, or indirect and general designation. In either case, if the judge has no link whatsoever to God, his decree shall have no credit at all. The Holy Qur’an has pointed out God’s direct designation of Hadrat Dawud (David) (‘a) to judge among men:
يَا دَاوُودُ إِنَّا جَعَلْنَاكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُم بَيْنَ النَّاسِ بِالْحَقِّ...
“O David! Indeed We have made you a vicegerent on the earth. So judge between the people with justice….”[57][85]
And regarding the Prophet of Islam (s), it says:
إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللّهُ
“Indeed We have sent down to you the Book with the truth, so that you may judge between the people by what Allah has shown you.” [58][86]
It also states:
فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ...
“But no, by your Lord! They will not believe until they make you a judge in their disputes.”[59][87]
In sum, in the Islamic political theory, sovereignty, legislation and the administration of society in all its dimensions and aspects must emanate from the legislative will of God.
Notes:
[60][81] Sometimes, in contrast to the common term “government” applied to the three powers, “government” is only applied to the executive power. Of course, this is a specific term which is used in limited cases. Usually, “government” is used in its common and broad meaning.

Author: Muhammad Taqi Misbah Yazdi
Source: al-islam.org

Station of Politics in Islam

In order to make clear whether or not the Qur’an talks about politics, we present an unequivocal definition of politics. Politics means the method of administering or organizing the society in such a manner that its interests and desires are realized. In simpler terms, politics means the rule of statecraft. What we mean by politics is not ‘real politic’, the concept with negative connotations, which is linked with chicanery, trickery, scam, and deception.
In the sphere of politics and statecraft, since the time of Montesquieu[4][13] the administrative body has been seen to be composed of three powers, viz. the legislative, executive and judicial. The function of the legislative body is the enactment of laws and decrees for the administration of society and formulation of rules of behavior for the people under different circumstances, in such a manner that justice is implemented, order prevails in society, and the rights of individual is not trampled upon. In general, society moves toward reform. The function of the executive body, the cabinet, is the implementation of laws and regulations enacted by the legislative body. The function of the judicial body is to adapt general laws and cases to particular and special cases and adjudicate and pass judgment on the disputes and differences among people.
Considering the above classification and functions mentioned for each of the powers, the opinion of Islam and the Qur’an about the station and legitimacy of the three powers must be examined. Do the Qur’an and Islam have specific orders and laws in these domains? It must, however, be noted that by “laws” we mean social laws and decrees, (not personal laws) whose existence in religion no one doubts.
The social laws include civil, penal, commercial, political and international laws. Once we take a glance at the Qur’an, we discover that all kinds of laws in the world for the administration of society, and the management of international relations can be found therein. Apart from the fact that civil laws; decrees on marriage and divorce; laws on trade, transactions, mortgage, loan and the like can be found in the Qur’an (which proves that issues on statecraft, like enactment and presentation of laws for the administration of society are taken into account in Islam), a special right for the Prophet (s) has been stipulated in the Qur’an to enact laws and decrees on particular cases based on circumstances of time and space, and the faithful are duty-bound to act upon the laws issued by the Messenger of Allah (s): “A faithful man or woman may not, when Allah and His Apostle have decided on a matter, have any option in their matter.”[5][14]
In this noble verse, the faithful have been deprived of the option to violate the decision of God and His Prophet (s).
Thus, apart from the orders of God and fixed divine laws, laws enacted by the Prophet (s) are also binding on all those living within the jurisdiction of the Islamic government. No one has the right to question these laws because whoever opposes them does not regard the Prophet as an emissary of God. We have no business with such a person. He who believes in the Prophet’s (s) right of legislation being delegated to him by God, but disputes about a truth, we will argue with him according to verses of the Qur’an.
Therefore, the Qur’an does not say, “An unbelieving man or woman may not…” but rather “A faithful man or woman may not…”As such, just as every ‘faithful’ living under the Islamic government acknowledges the apostleship of the Prophet (s) and regards the laws of God as necessary to follow, he should equally regard the orders of the Prophet (s) as necessary to follow. The necessity to follow God and His wilayah over all the faithful is established by such noble verses as: “The Prophet is closer to the faithful than their own souls...”[6][15]
According to the Qur’an, therefore, both the highest level of implementation of law and the right of legislation have been delegated to the Messenger of Allah (s). Whether or not such a right and station is also established for anyone other than the Messenger of Allah must be dealt with elsewhere. Presently, our concern is whether Islam has an opinion about politics or not.
Judicial laws in the Qur’an
Meanwhile, concerning the issue of judging after adapting general divine laws to cases where there is a dispute and discord among people, God says: “But no, by your Lord! They will not believe until they make you a judge in their disputes, then do not find within their hearts any dissent to your verdict and submit in full submission.”[7][16]
In the above verse, not only is the right of adjudication confirmed for the Messenger of Allah (s), but the acceptance of and acting upon his adjudication and verdict has been regarded as a requisite of faith. This point is accompanied by a very emphatic oath—“In their disputes the people must definitely make you the judge and arbiter, and after you pass a judgment they should not nurse any dissent and dissatisfaction in their hearts but should accept the judgment with full submission and obedience. Otherwise, they will not be truly faithful.
The true faithful is one who, if the Islamic court issues a decree against him, accepts it with open arms, realizing the possibility that his right is violated because the judge passes the verdict on the basis of external means of rendering justice, which the Messenger of Allah (s) explained thus: “Verily, I judge among you on the basis of proof and testimony.”[8][17] The testimony of a witness who is outwardly just is accepted although he might have lied in his testimony or committed an error therein. If everyone does not act upon the verdict of the judge, no progress can be made and the system will collapse.
What can be deduced from the Qur’an on penal matters, such as blood-money [diyah], qisas,[9][18] ta‘zirat,[10][19] and the like, testify that Islam is highly involved in politics, administrative affairs and society. Islam has gone to the extent of taking into account hudud[11][20] for criminals and corruptors in certain cases and of authorizing the judge to implement them even if there is no specific complainant. In such cases divine limits and rights have been violated and sometimes punishments are difficult to endure and accept. For example, the Qur’an says that in an Islamic society if an illegitimate relationship between a man and a woman is proved before the judge through the statements of four witnesses, both of them must receive a hundred lashes, and the Qur’an particularly admonishes the judge not to be influenced by emotion and have pity on them: “As for the fornicatress and the fornicator, strike each of them a hundred lashes, and let not pity for them overcome you in Allah’s law...”[12][21]
Undoubtedly, by implementing such a punishment the person will be disgraced, but society will acquire immunity. Regarding theft the Qur’an says: “As for the thief, man and woman, cut off their hands as a requital for what they have earned. [That is] an exemplary punishment from Allah and Allah is All-mighty, All-wise.”[13][22]
We conclude that the Noble Qur’an mentions adjudication, enactment of rules and regulations to preserve social order and secure the interests of society, and implement the hudud and ta‘zirat[14][23] rights of the Messenger of Allah (s). For a fair-minded person there will remain no doubt about Islam’s involvement in sociopolitical issues if he refers to the Qur’an as well as the authentic traditions of the Prophet (s) and the infallible Imams (‘a). Those who stubbornly deny these truths have chosen to do so no matter what the proof.
Universality of Islam and station of Islamic ruler
Apart from clearly explaining major political issues, the rule of statecraft, enactment of laws, their adaptation to particular cases, and their implementation, the Qur’an also clearly explains secondary and minor issues such as mentioning the months of the year, for example: “Indeed the number of the months with Allah is twelve months in Allah’s Book, the day when He created the heavens and the earth. Of these, four are sacred. That is the upright religion…”[15][24]
In the above verse, the division of the year into twelve months has been mentioned as an intrinsic and fixed affair in harmony with the system of creation. Mentioning such affairs in religion has been regarded as a symbol of its firmness, correctness and reliability. Regarding the sighting of the crescent moon, the Qur’an also says: “They question you concerning the new moons. Say, ‘They are timekeeping signs for the people and [for the sake of] Hajj’...”[16][25]
Social and devotional laws are in harmony with the system of creation. In addition, many legal laws have connected the beginning of the lunar month of Ramadhan, commencement of the Hajj season and other devotional laws with the sighting of the new moon. These are because the Qur’an basically presents religion as concordant with the nature [fitrah] and system of creation: “So set your heart on the religion as a people of pure faith, the origination of Allah according to which He originated mankind. There is no altering Allah’s creation...”[17][26]
Once the divine and religious laws are divinely codified, they are unchangeable. There are also changeable laws that depend on particular circumstances of time and space. To identify and deal with these laws has been delegated to the duly competent jurist who has acquired his legitimacy and authority from God. In the Qur’an this privilege and designation has been considered for the Messenger of Allah (s).
According to the Shi‘ah creed, the pure Imams (‘a) who have also been indicated in the Qur’an, have the same designation, which has been passed on to the wali al-faqih, which issue will be tackled at its appropriate time. Of course, a religion may exist in the world which is concordant with the above notion and outlook, but it is not within the scope of our discussion. We are talking about a religion which is even expected to state and determine the months of the year. In the area of transactions and financial relations among people, it clearly states that if a person gives a loan to another, he must ask for a receipt from him and give the loan in the presence of two witnesses.
If it is not possible to get a receipt and find witnesses, he has to take a retained pledge or mortgage a valuable thing in lieu of the loan.[18][27] We believe that such a religion has a program concerning politics and statecraft besides meeting the material and spiritual needs of people.
During the previous session, while rejecting that religion is only concerned with organizing the relationship between man and God, we said that religion, in its true sense, means the divine manifestation of human life. Such religion encompasses not only a portion of human life and behavior such as worship and the performance of devotional rites, but it embraces the totality of human life and the entire aspect of his existence.
He is created to organize his life in such a way that he attains eternal felicity by conforming all aspects of his life to the Divine will and commands. Thus, direct worship of God and conventional devotion are only a part of our religious duties. Our other mental and behavioral aspects of life must be in line with the will of God and they must somehow assume a form of worship [‘ibadah] so that the sublime and lofty goal of human creation can be realized: “I did not create the jinn and humans except that they may worship Me.”[19][28]
The purport of the verse is that the perfection of man is only possible under the aegis of worship and devotion to God. Therefore, all his movements and pauses must be within this framework. Even his breathing must be according to this program. If the life of a person acquires this divine baptism and color, and is attuned with this program, it means that he is truly religious. On the contrary, if he totally refuses to worship God, he is certainly irreligious and an infidel. Between these two frontiers, viz. the frontier of true religiosity and the frontier of infidelity, there are those, a portion of whose lives is not in conformity with the will of God and are, therefore, not truly worshipping God.
The religion of this group is surely defective. In view of the variety of religious deficiencies, it must be acknowledged that those who are truly religious and observe the divine laws in all facets of their lives, and those who observe only a portion of the laws are not on equal footing. Also, religiosity and faith has basically different levels and can grow and be perfect. As the Qur’an says: “As for those who are [rightly] guided, He enhances their guidance, and invests them with their God-wariness.”[20][29]
Elsewhere, it says: “The faithful are only those whose hearts tremble [with awe] when Allah is mentioned, and when His signs are recited to them, they (Allah’s signs) increase their faith.”[21][30]
Yes, there are those, whose faith is constantly moving toward perfection and they reach the highest level of faith and come closer to the station of the awliya’ [saints] of Allah, and even be included among the awliya’ of Allah. On the contrary, there are those who are moving backward from the station of religiosity. By listening and paying attention to the doubts spread by the foreigners and their admirers in the cultural domain of society, many abandon the religion they learned from their father, mother and teacher. This is because paying attention to the doubts will lead willy-nilly to misguidance of those who do not possess the ability to assess and study matters. In this regard, the Qur’an says: “Certainly He has sent down to you in the Book that when you hear Allah’s signs being disbelieved and derided, do not sit with them until they engage in some other discourse, or else you [too] will be like them.”[22][31]
Man has to first increase his learning as well as intellectual and rational foundation and empower himself with experience, analysis and response. He may then listen to doubt and skepticism. But the person who does not have the power to deal with the doubts should not place himself in the danger of misguidance by listening to doubts. Islam does not say that you should not enter the arena of wrestling. It says that you should wrestle with an opponent of equal weight and if you want to wrestle with a heavyweight opponent, you should first increase your weight and extend your training. Islam does not say that you should not listen to others’ words and misgivings.
It rather says that the attention paid to them should commensurate with the extent of your experience, analysis and discernment. First of all, one has to acquire divine gnosis [ma‘rifah] and learn the art of responding to doubts. Thereafter, one should discuss religion with others and listen to their statements so that they do not disarm you and impose their opinion on you.
Separation of religion and politics an extra-religious outlook
In propounding the separation of religion and politics, they say that they have consulted the Qur’an and are examining it through extra-religious lens. Before examining the sources of Islam and considering what the Qur’an says about politics, they pose this question: In essence, what is man’s need for religion? In what issues does he need religion to guide him? Regarding this matter, they have considered two hypotheses. The first hypothesis is that in everything and in all aspects of life man is in need of religion. Things such as the way of preparing and consuming food, the way of acquiring and building a house, the way of contracting marriage, and forming a society and government are all the same.
They ask: Should religion solve all these problems and man no longer engage in scientific research? Should we have maximum expectation from religion and consult it for all information? Whenever we want to buy clothes, we need to see what Islam says about it. Whenever we want to eat food, we have to check which food Islam suggests. Whenever we want to consult a doctor, we need to know what Islam advises. Also, we have to find out what religion says about forming a government. Their other hypothesis is that religion has limited jurisdiction and we should have minimum expectation from it. Obviously, religion has an opinion in all matters needed by man, but no religion ever claims that it provides for all the needs of man.
After finding out that religion does not teach us the methods of cooking, curing diseases, engineering, and building airplanes and ships, the distinction between the issues dealt by and not dealt by religion must be examined, and in which areas and spheres religion has been involved. They arrive at the conclusion that religion is concerned only with affairs related to the hereafter and has nothing to do with worldly affairs, and that we should have the least expectation from religion. From religion we should only search for the path of eternal salvation and the means and ways that will make us enter paradise and save us from hell. We should learn from religion how to pray, how to fast, how to perform the Hajj pilgrimage, and other matters related to the hereafter.
They assume that they have solved the issue concerning the relationship between religion and politics by demarcating them and separating the jurisdiction of religion from that of politics. It has been stated that politics belongs to mundane affairs while religion is only related to the hereafter. Neither should religion interfere in the domain of politics nor should politics interfere in the domain of religion. Only knowledge and human accomplishments should interfere in politics which deals with the jurisdiction of this world and science. Fields such as physics, chemistry, biology, medicine, psychology, and sociology belong to the domain of science. Religion has nothing to do with them. Religion is only involved in matters pertaining to the hereafter.
The origin of this issue can be traced back to many centuries in the West. When there was conflict and dispute between the ecclesiastical authorities and the men of science and politics it led to wars and clashes between them, and finally to an unwritten peace. They agreed amongst themselves that religion should deal solely with otherworldly affairs and the relationship between man and God; the sole jurisdiction of mundane affairs i.e. political, social and academic, should be left to statesmen and scientists.
This happened in the West. Those who are impressed with the West suggest that such a division of labor also be done in our Islamic country. Religion should only be in the hands of religious scholars and interfere in otherworldly affairs only. Religion and the religious scholars should not meddle in worldly affairs. Politics should, therefore, be entrusted to the political scientists and statesmen, and not to the fuqaha and ‘ulama’. In this regard, many speeches are being delivered and lots of articles being written. In proving their theory, they leave no stone unturned in inculcating this notion in the minds of our youth, that the religion and politics are apart.
Unfortunately, some of those who are engaged in cultural affairs are unconsciously influenced by this notion and other cultural waves of the West. It is gradually being accepted that religion is the opposite of politics. Religion solves a part of human problems but worldly problems have nothing to do with religion. Erroneous and deviant ideas of our writers, orators and cultural figures pose serious threats to our religious culture.
Close-knit connection between this world and the hereafter
The fact of the matter is that our life is divided into this world and the hereafter. That is, we have a period of life which commences at our birth and ends at our death. Then, the second part of our life begins on entering purgatory [‘alam al-barzakh] and facing resurrection.[23][32] This division of life does not necessarily mean that our actions and behavior in this world shall be divided into two and viewed from two perspectives. At any rate, we are in the world of action. Religion is revealed to guide our actions in the world, through a series of commandments and ordinances.
Thus, the religious commandments are not only for after death. It is not correct to say that a portion of our fifty or sixty year-long lives is related to the hereafter while another portion is related to this world. Rather, we have nothing in this world which is not related to the hereafter. All our actions in this world automatically assume an otherworldly form. That is, our actions here may be beneficial or harmful for us in the hereafter. Since our actions affect our otherworldly lives, the religious and Islamic view is that life in the hereafter is settled in this very world: “Today is the time for action and not for reckoning while tomorrow is the time for reckoning and not for action,”[24][33] and “This world is the sowing ground for the hereafter.”[25][34]
So, we will reap in the hereafter the fruit and product of whatever we sow in this world. It is not correct to say that our worldly life is alien to our otherworldly life; that a part of our actions are related to the life in this world while another part is related to the hereafter; and that we have two distinct spheres of life for this world and the hereafter. Instead, all our actions in this world such as breathing, blinking, walking, sitting, rising, looking, social intercourse, speaking, listening, eating, marital relationship, and government-people relationship can be such that ensure our felicity in the hereafter, or bring harm to us. It is true that the style of cooking and consumption of food are related to this world but the same act of eating can send us to paradise, or throw us into hellfire: “Indeed those who consume the property of orphans wrongfully only ingest fire into their bellies, and soon they will enter the Blaze.”[26][35]
Anyone who fills his stomach with the property of orphans eats food and enjoys doing so, but the food he eats will become chastisement of the hell for him. Similarly, if a person eats food for the sake of worshipping God, the same act of eating will have a spiritual reward. The same word that a person utters for the sake of pleasing God will be a tree growing in paradise for him. The Holy Prophet (s) said to his companions: “For anyone who recites tasbihat al-arba‘ah[27][36] God gives him a tree that grows in paradise.” Some said: “So, we shall have many trees in paradise because we recite this dhikr [remembrance of God] frequently.” He said, “Yes, provided that you do not kindle fire to consume them.”
Thus, once our actions are done for the sake of pleasing God, they will bring about eternal felicity and rewards, and if they are done against the order of God, they will be the cause of perdition and chastisement in hell. It is not correct to say that our lives have two distinct divisions; one of which is related to the hereafter and is spent in the mosque, church, synagogue, and temple, while another part is related to this world and to ourselves and has nothing to do with the hereafter.
As we have said, this erroneous thinking was prevalent for the past centuries in the West among the followers of certain religions and occupied the minds of many in spite of the fact that neither Islam nor any other revealed religion ever endorsed such a notion. The contention of true religion is that man is created in order to secure his own felicity or perdition, and that his eternal felicity or perdition, as the case may be, lies in his behavior in this world. If his behavior is consistent with the command of God, he will attain eternal bliss, and, if otherwise, he will incur everlasting damnation.
The “minimalist” view on the question of expectation from religion is the result of a fallacy they committed. They imagined that expecting the maximum from religion meant they would have to seek all the information about everything from religion, including the style of cooking food and building a house, which information religion could not provide, so they said that they should not expect the maximum from religion. This is fallacious because the above issue does not have only two options. It has a third option which is the correct one, and that is, we do not expect that religion to say something about everything, including the manner of eating food, wearing clothes and building a house. No one has such a claim. However, since religion has left many issues to the realm of non-religious sciences, the same issues actually belong to the jurisdiction of religion. In this way, they acquire ideological value.
Ideological baptism of actions in this world
Once we consider the life in this world as linked to the life in the hereafter and believe that the totality of man’s actions and behavior plays a role in his perfection or downfall, it will acquire ideological value and we will give religion the right to judge each action. In simpler terms, religion informs us about the lawfulness or unlawfulness of our actions and not the manner of performing them.
Religion says that eating certain foods is unlawful [haram] and sinful. For example, eating pork and drinking wine are haram, but to say something about the manner of making wine and breeding pig is none of the business of religion. The reason behind religious permissions and prohibitions is their positive or negative effects in the otherworldly life of man, and it states the moral value of every action.
In other words, the path of man toward perfection begins from a point toward infinity. That which is useful for our perfection and provides the ground for the spiritual advancement of man is proportionate to the degree of wajib, mustahabb [recommended] or at least mubah [permissible] acts performed. The performance of haram and, to a lower degree, makruh [abominable] acts will keep him away from his true perfection and God. So, religion does not say what food to eat or how to cook it and how to build a house.
However, it says that you should not build a house on usurped land or you should not build a house in such a way that it overlooks the house of another and invades his privacy. It also says that you should build your house with halal income and not out of money earned through usury [riba’]. In reality, religion mentions the ideological manner of building a house. It also invites us to consume foods that are effective in our human and spiritual growth and avoid unlawful foods, alcoholic beverages, and narcotic drugs, which are unhealthy for us: “O you who have faith! Indeed wine, gambling, idols and the divining arrows are abominations of Satan’s doing, so avoid them, so that you may be felicitous. Indeed Satan seeks to cast enmity and hatred among you through wine and gambling, and to hinder you from the remembrance of Allah.”[28][37]
Hence, the permission and prohibition of religion is meant to expound the ideological value of all actions. To sum up apart from the worldly outcome of actions, religion also speaks about every action’s contribution to the doer’s admission to paradise or entrance to hell.
Radiant capability of intellect in discerning value of actions
The ideological value of action from the perspective of permissibility or prohibition is sometimes so clear and unambiguous that the human intellect can discern it well and there is no longer need for religion to state its ruling about it. In fact, the intellect alone can identify the decree of God. As such, concerning “rational independence” [mustaqillat al-‘aqliyyah], the fuqaha have said that in some cases the intellect can independently give a judgment and know the goodness [husn] or badness [qubh] of actions. Through the use of the intellect, we discern that the will of God is in the performance or abandonment of an act; we discern that God is pleased or displeased with a certain act.
Our intellect understands that taking out a slice of bread from the mouth of an orphan is an abhorrent act. In this regard, there is no need to state the religious ruling of law, though sometimes, in addition to the discernment of the intellect, the Qur’an and ahadith have also mentioned the religious rulings which actually confirm the judgment of the intellect. In most cases, nonetheless, the intellect does not possess the capability to understand that a certain action (depending on its being positive or negative, and how valuable) is obligatory [wajib], prohibited [haram], recommended [mustahabb], abominable [makruh], or permissible [mubah]. It is at this point that religion has to state the type and degree of impact of a certain act on our ultimate perfection.
Jurisdiction of Religion
Once we observe the commandments of religion, we will realize that the jurisdiction of religion is not restricted to personal matters. It rather deals with social issues such as those related to family, marriage, divorce, and commerce, and states the scope of halal and haram and their ideological values. By stating the ideological value of those things, religion actually explains their orientation—which form will lead toward God and which will incline toward Satan. This is something which science is incapable of dealing with.
Science mentions the amount and kind of elements needed to form different things and enumerates the physical and chemical properties, but it does not state how to use things in order to secure the real success of man. In this case, religion has to judge. Therefore, just as our personal action affects our felicity or wretchedness, our action in sociopolitical affairs has greater effect.
Meanwhile, in connection with the main axis of our discussion, which is social administration, can it be said that the mode of managing society has no relation with the ultimate success or failure of man and that the people in society are free to choose whatever form and method of administering their society, and religion has nothing to do with it? Who does not know that observance of justice in society gives success to man and that justice has a very strong positive value?
In this context, even if there is no pertinent Qur’anic verse or hadith, our intellect will discern that the observance of justice contributes toward the perfection, advancement and exaltation of man. When people do not regard their intellect as sufficient to discern ideological issues in these contexts, they have to resort to the Qur’an and the Sunnah. Of course, we believe that the intellect can understand many of the ideological issues in sociopolitical affairs. This does not mean, however, that whatever the intellect understands is outside the realm of religion.
We have mentioned earlier the “discoverer” of the will of God, which expresses the divine will and wisdom and conveys to us what is pleasing to God. It makes no difference how we discover this thing. What matters is that we discovered the divine legislative will.
Sometimes, this discovery is through the agency of the Qur’an and the Sunnah while, at other times, through the intellect, for these three are the proofs and discoverers of divine decrees and religious laws. As such, the intellect [‘aql] is considered as a source of divine law. The fuqaha regard the intellect as among the proofs in proving religious decrees and settling religious issues.
So, there is no demarcation between the intellect and religious law [shar‘]—some matters belong to the intellect while some others belong to religious law. Rather, the intellect is a light which, owing to its luminosity, can also discover the will and pleasure of God, and whatever can be discovered by the intellect in this regard is a religious matter.
Relationship between Religion and Government
In view of the different forms of government existing in the world, especially the so-called Islamic governments formed during the Islamic period, it cannot be said that Islam has neither a positive nor negative view on the forms of government. If we try to compare the corrupt and oppressive government of Mu‘awiyah[29][38] and Yazid[30][39] with the just government of the Commander of the Faithful (‘a), can we claim that the religion of Islam treats the two equally and does not make any distinction between the government of ‘Ali (‘a) and that of Mu‘awiyah?!
Can it be said that everybody is free to choose any form and system of government he likes, and religion cannot interfere; that the performance of neither the government of ‘Ali (‘a) nor that of Mu‘awiyah has any effect on the ultimate fate of man because the form of government is related to politics and this world and has nothing to do with religion?! Could any reasonable person accept such a contention? Can it be said that the two types of government are equal in the sight of religion and that religion neither recommends nor discourages any of them?
The fact of the matter is that involvement in sociopolitical affairs is among the most evident areas in which religion must get involved. Religion has to explain the appropriate structure of government. Religion has to explain that the ruler has to think about the deprived and the downtrodden as well as about the consolidation of the pillars of his rule from the very beginning of his assumption of office.
Thus, the station of sociopolitical issues in religion, especially in Islam, is clear and eminent. One cannot consider them outside the jurisdiction of religion and believe that they have no effect in the felicity and wretchedness of people. Assuming that the hereafter, the Reckoning, the book of account, reward and punishment really exist, can it be said that the behavior of Mu‘awiyah, Yazid and the like has no effect on them?! Of course, even if some of our Sunni brothers have not yet resolved the issue of Mu‘awiyah’s uprightness, there are many tyrants and oppressors who have blackened the pages of history.
Can it be said that these tyrannical rulers are ideologically on the same footing as the just rulers? Today, are those who are butchering and bombing innocent women and children equal to those who are totally in the service of the deprived and the oppressed, and will live together in paradise? Which religion or nation supports this view? How then can sociopolitical issues be considered as outside the realm of religion? If religion were supposed to give its opinion about reward and punishment, halal and haram, positive and negative values, then sociopolitical issues are the most important issues about which religion must give its opinion.
Based on what has been stated, the scheme on the basis of which religious issues are separate from that of the world and religious issues are just related to God and the hereafter and are outside the realm of worldly affairs, is totally erroneous and inadmissible, and in no way consistent with Islam. The worldview presented by Islam and the life to which it invites us are repugnant to this way of thinking. This is not to mention the fact that those who are uttering such words essentially believe in neither God nor the Day of Resurrection. They are doing so with the aim of expelling religion from the scene. But we have nothing to do with their personal conviction.
Our only point is that separating mundane affairs and temporal issues from the jurisdiction of religion will lead to the denial of Islam and has no other outcome. As we have said, every action contributes to our felicity or wretchedness, as the case may be. So, we have to acknowledge that religion can give its opinion on all matters in our lives and state their ideological value. As the Prophet (s) said: “There is nothing that would draw you toward paradise and keep you away from hell except that I commanded you and there is nothing that would draw you toward hell and keep you away from paradise except that I prohibited you.”[31][40]
In the Islamic perspective, felicity without paradise has no meaning and wretchedness without being thrown into hellfire simply does not exist: “As for the wretched, they shall be in the Fire… And as for the happy, they shall be in Paradise.”[32][41]
Universality of Religion
In view of the statement of the Prophet (s), the other assumption is refuted, and to say that it is true that religion can state the value of actions and say what is halal and haram but it was the Prophet (s) himself who stated the values of some actions while some were delegated to the people, i.e., he stated whatever was related to his own time, delegating the rest to the people to identify what is halal and what is haram according to the circumstances of their time.
This statement means that the Prophet (s) did not state all that would give us felicity. This is what he said: “There is nothing that will ensure your felicity except that I have stated it.” Of course, this statement does not mean that he has stated all the minute details. He has rather stated the general rulings, so that, in all times after him, those who have authority can deduce from them specific laws; what is halal and haram according to the evidence, and present them as primary and secondary rulings or government decrees.
Undoubtedly, to identify the specific laws and evidence, which is called religious edict [fatwa’], is in accordance with the general principles mentioned in the Qur’an, the Sunnah of the Messenger of Allah (s) and sayings of the infallible Imams (‘a).
Notes:
[33][13] Charles Louis de Secondat Baron de la Brede et de Montesquieu (1689-1755): French writer and jurist, who explored in depth in his The Spirit of the Laws (1748; trans. 1750) the modern idea of the separation of powers as well as the checks and balances to guarantee individual rights and freedoms. Albeit not using the term “separation”, Montesquieu outlined a three-way division of powers in England among the Parliament, the king, and the courts, though such a division did not in fact exist at the time. [Trans.]
[34][32] Of course, another part of life prior to the life in this world can also be considered and that is the life in the womb.
Author: Muhammad Taqi Misbah Yazdi
Source: al-islam.org