Guardianship Of The Jurist- Its reality, extent & evidences (Part 1)

The office of his eminence Ayatullah Seyyed Kamal Al Haydari have started uploading Kharej fiqh lectures from 5 years ago on two previously unreleased topics, namely wilayat-ul-faqih (guardianship of the jurist), and al insaan al kaamil (the perfect human). Considering this topic is still fiercely debated, and still confuses a lot of people (muslim and non-muslim alike), I hope that posting the videos and associated english summaries will benefit all. (Note: this is not just a translation of the most important parts of the lecture(s), but I will contribute as well with my own comments, so if you’ve got questions or issues with what’s written, please refer to the precise wording so I can differentiate between the two):

He starts the discussion by posing the two main questions that are the basis of this topic:

1) whether guardianship of all religious matters is valid for the religious jurisprudent during the greater occultation of Imam Mahdi (ajf), and whether it is not

2) If he is granted such authority and responsibility (in effect, the same responsibility -not status- of the Prophet and Imam), what is the extent of this guardianship/custodianship

He then asks: What are the known views on the permissibility of establishing an Islamic State during the greater occultation?

Answer to that, is that there are 2 distinct opinions:

a) that is it not permissible and forbidden

b) that it is permissible – and within this group, there are 2 sub-groups –

one that says it is obligatory to establish islamic rule, by all means necessary;

and the other, that it is permissible, if the right conditions and circumstances are present.

The first group had used the following narrations as evidence:

في (وسائل الشيعة, طبعة مؤسسة آل البيت, المجلد الخامس عشر, ص50, هناك بابٌ تحت عنوان: باب حكم الخروج بالسيف قبل قيام القائم×) مجموعة من الروايات, الروايات بعضها صحيحة السند, الآن لسنا بصدد بحثها

الرواية الأولى: >عن علي ابن الحسين× قال: والله لا يخرج أحدٌ منّا قبل خروجه (عليه أفضل الصلاة والسلام) إلاّ كان مثله كمثل فرخٍ طار من وكره قبل أن يستوي جناحاه فأخذه الصبيان فعبثوا به<. هذا تمثيل كل حكومة قبل قيامه (عليه أفضل الصلاة والسلام)

رواية ثانية: >قال أبو عبد الله الصادق×: يا سدير إلزم بيتك وكن حلساً من أحلاسه واسكن ما سكن الليل والنهار فإذا بلغك أن السفياني قد خرج فارحل إلينا ولو على رجلك< إذن هذه المدّة لابد أن تكون حلسة بيوتكم. >قال: يا ابن رسول الله أين نجد العافية أو الراحلة؟ قال: تسعة في اعتزال الناس وواحدة في الصمت< أولاً: أصلاً لا تختلط معهم, وإذا اضطررت للاختلاط اسكت, هذه روايات موجودة في تراثنا الفقهي

روايةٌ أخرى: قال في خطبةٍ له أمير المؤمنين >ألزموا الأرض واصبروا على البلاء ولا تحركوا بأيديكم

قال: >ألزموا الأرض واصبروا على البلاء ولا تحركوا بأيديكم وبسيوفكم في هوا ألسنتكم ولا تستعجلوا بما لم يعجل الله لكم, فإنه من مات منكم على فراشه وهو على معرفة حق ربه .. هذا أفضل…< إلى آخر ذلك

رواية أخرى: -ولعلها صحيحة السند- قال: >كل راية ترفع قبل رايته (عليه أفضل الصلاة والسلام) فصاحبها طاغوتٌ يعبد من دون الله عز وجل

The jist of these narrations is that it is a bad idea, and not advisable, and one should remain at home and in seclusion and not speak up. The last narration states that any banner that is raised before the appearance of the Imam, is a banner of taghuut that is worshipped beside Allah (swt).. so quite harsh words.

So the first group has a very easy and relaxed life, where they don’t involve themselves in any socio-political activity to lay the groundworks of an islamic state, or even if an islamic state was established by pure coincidence, or on the back of tanks, they would not involve themselves (at least they claim not to….).

As for the second group:

sub-group 1 is of the view that the laying the groundworks for the right conditions of establishing an islamic state is obligatory on all muslims by any means necessary (even by the use of force), just as ablution is obligatory before prayer. This is the view of Mirza Jawadi Tabrizi.

sub-group 2 is of the view that laying the groundworks for establishing the islamic state is obligatory subject to the right conditions to arise, as in the ruling with respect to hajj, which is only obligatory on those who are able to perform this religious duty.

So what’s our duty? The answer to this partially lies in the life of the Imams, to see how they reacted when faced with such a choice.

Seyyed Kamal considers this topic more important than any personal religious duty, including salah, and I hope you too appreciate why.

He then continues to pose the question on WHO should take charge of this hypothetical islamic state, assuming one is established by some means, and what is the extent of his authority/responsibility?

He makes it a point to clarify that the Jurist / Faqih in question here, is not the commonly known scholar of fiqh that gives religious rulings on personal religious matters, but the wholistic jurist combining all necessary qualitiies of a leader of the islamic state, which includes bravery and awareness of all socia-political, economic and other current affairs of the era he’s living in. CLearly these are not conditions to become a mujtahid of basic fiqh matters.

On the extent of the jurist’s authority there are 4 views:

1) One held by Seyyed Al Khoei (ra), where he claims that there is no evidence whatsoever that the jurist has any sort of authority over muslims, and that ‘his guardianship should be limited to non-litigious matters (al-omour al-hesbiah)[1] including religious endowments (Waqf)[2] judicial matters[3] and the property for which no specific person is responsible.’ (see wikipedia entry as reference to this sentence). If you require references, please let me know.

2) One held by Shaheed Al Sadr, where he suggests that his guardianship is limited to the ‘void’ left between the halal and haram matters (where he has No say in the matter), and the matters which are mustahab and makruh (where he does have a say in the matter, if the need arose).

First the Seyyed re-emphasizes Seyyed Al Khoei’s view, which is that he does not believe that the religious jurist has been given any guardianship whatsoever (even juristic), but he is duty-bound to deal with certain non-litigious matters out of necessity. So, the religious faqih does have a responsibility to deal with social matters in the islamic society, unlike the first group which rejected this responsibility. He shouldn’t just state what the religious ruling is, but make sure the judgement is executed in accordance with islamic law. (references available if required)

The 3rd theory, is a contemporary theory unheard of before the islamic revolution in Iran, and states that: the religious jurist (faqih), who encompasses all required qualities, has been given all responsibilities of the infallible Imam in order to manage the affairs of the islamic ummah, but on condition that the islamic nation elects him first.

To clarify more:

– the islamic nation has a religious obligation to elect a guardian (waliy), who has certain characteristics, these characteristics have been made clear by the infallible Imam

– the guardianship of the faqih has been given to the religious jurist by the Imam

– but in order for this guardianship to take effect, the islamic ummah has to elect the faqih, who has those all-encompassing characteristics.

As an example, we can say there is amongst us in the community someone who has all necessary qualities to lead the community in prayer, however the community decides against selecting him to be the Imam of the mosque. Therefore, all those qualities that he has are of no use to the community unless they select him to be Imam.

Again I re-emphasise, the Muslims DO NOT have a choice whether to elect a guardian or not, this is a religious duty, just as ablution is a religious duty before prayer. It is the duty of the Muslims to identify and elect the right leader to guide them to prosperity and progress.

Also, it is the religious duty of the religious establishment to educate the Muslim ummah in such a way in order for it to make the right choice! Otherwise, they would end up with the likes of those who followed after the death of the Prophet (s).

Evidence from narrations:

There are many, I will just list a few,

 

  >عن الإمام أمير المؤمنين× قال: دعوني والتمسوا غيري واعلموا إن أجبتكم< إذن الدعوة ممن؟ من الأمة >إن أجبتكم ركبت بكم ما أعلم ولم أصغ إلى قول القائل وعتب العاتب وإن تركتموني فأنا كأحدكم 

 ولعلّي أسمعكم وأطوعكم لمن وليتموه أمركم

 >وقد كان رسول الله’ عهد إليّ عهداً فقال يا ابن أبي طالب لك ولاءُ أمتي,  >فإن ولوك في عافيةٍ وأجمعوا عليك بالرضا فقم بأمرهم وإن اختلفوا عليك فدعهم وما هم فيه

قال رسول الله’ يقول لأمته >إن تولوها عليّاً تجدوه هادياً مهدياً

 

 >حتى إذا قبض الله رسوله<رجع قومٌ على الأعقاب وغالتهم السبل واتكلوا على الولائج ووصلوا غير الرحم وهجروا السبب الذي امروا بمودته

In short, this guardianship can be called ‘Guardianship by Election’.

One last point on this, is the verse in Surah Hadid:25

لَقَدْ أَرْسَلْنَا رُسُلَنَا بِالْبَيِّنَاتِ وَأَنزَلْنَا مَعَهُمُ الْكِتَابَ وَالْمِيزَانَ لِيَقُومَ النَّاسُ بِالْقِسْطِ ۖ وَأَنزَلْنَا الْحَدِيدَ فِيهِ بَأْسٌ شَدِيدٌ وَمَنَافِعُ لِلنَّاسِ وَلِيَعْلَمَ اللَّـهُ مَن يَنصُرُهُ وَرُسُلَهُ بِالْغَيْبِ ۚ إِنَّ اللَّـهَ قَوِيٌّ عَزِيزٌ﴿٢٥

Certainly We sent Our apostles with clear arguments, and sent down with them the Book and the balance that men may conduct themselves with equity; and We have made the iron, wherein is great violence and advantages to men, and that Allah may know who helps Him and His apostles in the secret; surely Allah is Strong, Mighty. (25)

First point: the apostles of GOd have been sent to make clear the religious teachings (fatwa), and then with the help of the people, to establish justice on earth. It is interesting that the emphasis is on the PEOPLE, who are duty-bound to establish justice, and not the apostle. And how can we establish this justice? With Iron. It’s no use to merely give speeches and to set up conventions and seminars, justice can only be established with a powerful security system in place.

The 4th theory: just a summary today, tomorrow will come the details, which is the absolute wilayah of the jurist, as defined by Imam Khomeini (ra).

All responsibilities of the infallible Imam have been given, by appointment of the Imam, over to the most capable individual -and not just the religious jurist- to guide the islamic ummah. Not just any individual, but he who has satisfied the characteristics defined by the infallible Imam.

So the 3rd theory was by election, this guardianship is by anointment, or by appointment of the infallible Imam, and the muslims have no say in this whatsoever.

Seyyed Kamal clarifies a point regarding the third theory (elected wilayah): that the consent of the people to elect such a leader has to have a form of external manifestation, which according to scripture is the bay’ah, or pledge of allegiance. These sources (Quran & Sunnah) are too numerous to list, and most are well known so no need to repeat here.

What he tries to emphasise here though is this point: that all Prophets & Imams did not take guardianship or leadership by force, but through consent of their followers. None of them said, if you don’t elect me so and so will happen. None of them used the sword or force or terror to subjugate people into submission.  So one aspect of accepting Islam and the Prophet and the Imam relies on the shahadatayn (bearing witness), and the other to the pledge of allegiance, so that the guardian and his followers are TOGETHER able to establish justice and prosperity on Earth (while defending their religion), examples in history are many, one of which is Ghadeer Khumm, and the Prophet’s command to pledge allegiance to Imam Ali (as). The need for this pledge was the manifestation of the people’s consent to have him as their ruler and guardian, where verbal or visual consent is not enough.

He then continues to show why Bani Ummayah have tried since the times of Mu’awiyah to prove that the pledge of allegiance and the khilafah of Imam Ali is null and void, but I won’t go into that here.

Continuing with the 4th theory: 

we said that this guardianship is like that of the father over his son, where the son has no say in the matter. we also said that whatever authority and power given to the Prophet and Imam (by God), is given to the jurist/faqih during the greater occultation.

This theory has been attributed to Imam Khomeini (qs), and recently there have been accusations from here and there, that this theory is has no roots in the Najafi school (the neo-Najafi school post Sh Al Ansari), and is unique to the Qomi school… They claim that it is widely accepted by the scholars that this theory of absolute guardianship has no proponent, apart from Imam Khomeini. Is that true though? Let’s see what the following scholars (from Najaf), have to say*:

1) Sh Naraqi, student of Sh Ja’afar Kashif al Qhita’: in his book ‘Awaid al Ayam, pg 529: summary of what he says there is that the wilayah belongs to God essentially, and He has given it to the Prophets and Imams, and to the religious jurists who are the representatives of the Imam during the greater occultation and his wilayah entails a) all wilayah authority given to the Prophet and Imam, and b) every matter to do with the people’s worldly and religious affairs that have to be dealt with to resolve problems, disputes, protecting the countries’ borders, etc (as in S al Khoei’s theory).

2) Sh Muhammad Hussein al Najafi, in his famous book Jawahir al Kalam, vol40, pg15: there is evidence that during the greater occultation the religious jurist has guardianship over the judicial affairs (whereas S al Khoei said there is NO evidence for ANY kind of guardianship, even judicial), and that this evidence helps to conclude that absolute guardianship, as per the Imam, is given to the jurist.

Seyyed Kamal then pleads with his students not to belittle or ridicule others who do not accept this theory, or vice versa. These are opinions which should be respected, whether they agree or not. He also noted that these two scholars lived before the IRI even existed, so nobody can accuse them that the IRI had any influence on their judgement.

The exact phrase of Sh al Najafi is this:

 ويمكن بناء ذلك بل لعله الظاهر على إرادة النصب العام في كل شيء

على وجه يكون له ما للإمام عليه السلام

i.e every responsibility given to the Imam during his presence, is given to the jurist during the greater occultation.

His argument is based on the following proof:

– the famous narration of Imam Mahdi (ajf): فأما الحوادث الواقعة فارجعوا فيها إلى رواة حديثنا فأنهم حجتي عليكم وأنا حجة الله

Sh al Najafi comments on this narration, that ‘this necessitates that the jurists (the narrators of their hadith), are the Imam’s hujja on the muslims on EVERY matter that he is a hujja over them, except that which is proven otherwise.

Seyyed Kamal then shows that Seyyed Sabzawari is of the same view, in his book ‘Mahthab al ahkam, fi bayani al halal wal haram, vol 16 pg364-365. He’s even more explicit and states that the jurist has guardianship as if he IS the Imam.

Just goes to show that Imam Khomeini is not the only one who viewed guardianship to be absolute during the greater occultation, as we saw by these scholars who lived before the revolution in Iran.

Seyyed Kamal then briefly mentions the view of Sh al Ansari, who states that it is IMPOSSIBLE to prove that the jurist (who satisfies the necessary requirements) has the same guardianship as that of the Imam during the greater occultation. (see al Makasib vol3 pg 553)

It is of the Seyyed’s view, that the scholars did not resolve the main point of dispute, therefore he continues from now onwards to do so before arriving at some conclusion. This is the Seyyed’s approach with all religious concepts, and has done so most methodically, like no one before him, on the concept of Imamah (see his publications on the subject).

(Please note that these lectures came as a request from his students during the course of the regular sessions on khums, and therefore he doesn’t go into extreme detail)

From the following lectures it should become apparent what the true views of each scholar is, and whether they agree or disagree with each other.

First step is to define what the wilayah/guardianship that is given to the Imam actually is, so that we understand what we’re saying when we claim that ‘everything given to the Imam is valid for the religious jurist’.

There is no doubt in anybody’s mind, that wilayah belongs essentially and only to Allah swt, even the wilayah of a person over his own self and all his possessions, belongs to Him alone. The quranic and rational proofs divide the wilayah of Allah swt into two:

1) wilayah takweeniyah (existential guardianship)

2) wilayah tashree’iyah (legislative guardianship)

(for details see Tafsir al Mizan, vol6, ref the verse 5:55). Also see english translation on almizan.org, short extract here:

al-Wilayatu ‘t-Takwimiyyah (The Authority Over Creation): Through this authority He manages everything and disposes the creatures’ affairs as He pleases and in whatever way He pleases. He says: Or have they taken guardians besides Him? But Allah is the Guardian…. (42:9);… you have not besides Him any guardian or any intercessor; will you not then mind? (32:4);… Thou art my guardian in this world and the hereafter;… (12: 10 1);… he has no guardian after Him;_ . (42:44). The same is the implication of the verses: …and We are nearer to Him than his life vein. (50:16);… and know that Allah intervenes between man and his heart, …(8:24).

al-Wilayatu ‘t-Tashri’iyyah (The Authority Over Legislation): Allah has ascribed to Himself this wilayah which concerns the believers’ religious affairs: Legislation of the laws, guidance, advice, help and so on. He says: Allah is the Guardian of those who believe; He brings them out of the darkness into light, …(2:257);… and Allah is the Guardian of the believers (3:68); and Allah is the Guardian of the pious… (45:19) The same is the theme of the verse: And it is not for a believing man nor for a believing woman to have any choice in their affairs when Allah and His Messenger have decided a matter; and whoever disobeys Allah and His Messenger, he surely strays off a manifest straying (3 3:3 6).

Question: have both of these types of guardianships been given to the Prophet and Imams of Ahlul Bayt, or one and not the other?

This matter is disputed in the school of Ahlul Bayt:

1) The first view claims that the Prophet and Imams have not been given any guardianship. Their duty is to inform us of our religious duties and to explain the details. The miracles and supernatural favours are Gods’ acts and they have no role in those either except to pray to Him to fulfil those favours and requests.

2) The second group is of the view that the Prophet and Imams have authority over creation. The problem is, people seem to think this guardianship/wilayah means they are able to raise the dead for example, i.e. have the ability to influence the existential world, which is not what the scholars mean when they say wilayah takweeniyah. This wilayah is in reference to the role the Prophet and Imams play as intermediaries of Divine Grace (wasatah al faydh), which means they fall within the series of causes that brought this universe and everything within it into existence, everything that descends to this world has to pass through them, and everything that rises up to the Divine has to pass through them.

That’s very different to the ability to influence the existential world, the Quran even mentions some Jinn’s ability to do that.

Now does this view fall within the matter under dispute? No it does not, since these matters are existential and not subjective things that can be transferred from one individual to another.

So the question arises, has the religious jurist been given authority to issue religious decrees? Some have rejected this, like the akhbaris, while those who accept it, the usoolis, have to provide proof for this authority when they issue their book of decrees (risalah). Why is this an issue? It’s an issue because the jurist could be right or wrong, and the Akhbaris use the narration of Imam Ali (as), that any path that leads to disputes over fatwas is forbidden by God, which is what essentially ijtihad is.

This is not to be mixed with wilayah tashree’iyah, which is the authority to create religious law, which is specific to God, the Prophet and Imams, and is not transferred to the jurist.

The third wilayah is judicial authority, over which the same dispute as the second type of wilayah (religious decrees) arose, since the religious jurist overlooking a judicial matter could make a mistake, so how can it be given to him?

Seyyed Kamal initially reiterates the point regarding God’s essential wilayah/authority over everything.

Then he brings up 3 views on whether this wilayah (existential/takweeniyah) has been transmitted to the Prophet and Imams, and the extent of this wilayah (whether it’s just a matter of raising the dead or whether they are intermediaries to God’s Grace), again I won’t go over that since it’s outside of the remit of this study. If anyone is interested, please let me know I can elaborate.

On the subject of legislative authority (in its general sense, which includes authority over religious legislation, judicial matters and executive orders), we mentioned that the religious legislation have been given to the Prophet and Imams, however the jurist has only authority over the issuance of fatwas, which is different to the authority over religious legislation in the sense that he cannot come up with a new sharia, since he is not infallible and therefore can make mistakes. He is limited to ijtihad, whether usooli or akhbari, and nobody disagrees on this point.

For judicial matters, we know this has been given to the Prophet and Imams, but is it valid for the jurist as well? The answer is that all Shia scholars, usoolis and akhbaris are in agreement that this authority has been given to the jurist during the grater occultation. (Note: we have not touched on who this jurist is or what his qualities should be, and insha’Allah I’ll dedicate a separate thread for it, or point you to my posts on my blog on the matter). Scholars only disagree on HOW this authority has been deduced from the available evidence. Is it an explicit statement in a narration, or a rational deduction from the obvious need to resolve social disputes.

Sh al Ansari says we have an explicit statement from the Imam, whereas Seyyed al Khoei, as we mentioned earlier, disagrees and even goes so far that there is no evidence whatsoever for ANY authority of any kind. (see previous mentioned sources). S al Khoei also states that WHO should take on this authority is not specified, and that the priority should be given to the religious jurist, however, if one were not available, any other individual could take on that role.

The akhbaris put a condition that the (non usooli) jurist – or the narrator of hadith, as they call him – should find the appropriate hadith in order to resolve any dispute, since they consider ijtihad in such matters forbidden.

For the executive authority, the Prophet and Imams no doubt have the authority to issue the judgement then to order the execution of the ruling. This is where we have quite a substantial disagreement between scholars on whether this authority has been given to the religious jurist. There are 3 views:

1) First view claims that this authority belongs to the Prophet and Imam only. This group defends their ommitance of the chapter on huduud (executive rulings) in their risalah/book of fatwas.

2) The second view claims that this is such a problematic issue that we can neither accept or refute it…!

3) The last view states that this authority has been given to the religious jurist, with conditions. Seyyed al Khoei says again that this is necessary, but not due to any explicit hadith statement (see Mabani takmilat al minhaj,vol1, pg224). Again, WHO should take on this role in his view? Ideally the religious jurist, but can be anybody else.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s