Guardianship of the Jurist – It’s reality, extent & evidences (Part 2)

So far we’ve covered authority over the issuance of religious edicts (fatwas) and adjudication and huduud/executing the law. On these two subjects we have so far not seen any major differences between the scholars, who one way or another, see that the religious jurist is duty bound to ensure these responsibilities are taken care of.

Obviously, this can’t happen without a state and institutions. Someone must have the authority in order to enforce these adjudications and establish justice amongst the people. And if this person cannot, for whatever reason, do this from a position of leadership, he should at least demand authority over the judicial institutions. (this view is held by the majority of Shia scholars)

The fourth level of authority under question is what is known as authority over the ‘permission to act’ (couldn’t come up with a better translation), which is related to any social matter requiring consent of the guardian/ruler/person in authority, when an individual wants to do something that could affect his community and/or the environment, things to do with property, finance, security etc (See Sh al-Ansari in ‘al Makasib, vol3 pg553: He sees that this authority is extremely important and covers ALL social aspects when an action of one affects the lives of others. And this authority, he says, is the same authority given to the Prophet and Imam, and violating the ruling of the religious jurist in this instance is like violating the ruling of the Prophet and Imam). Again, this authority requires the jurist to be in a position of leadership for him to be able to manage the affairs of the people and ensure a stable and just society is established. He uses the following narration as evidence:

وأما الحوادث الواقعة فارجعوا فيها إلى رواة حديثنافأنهم حجتي عليكم وأنا حجة الله

‘.. for the occurring incidents turn to the narrators of our hadith, since they are my hujja on you, and I am God’s hujja..’

Therefore, all these authorities that have been given to the Imam, are passed down to the religious jurist, since they are his representatives, and he is the representative of God, who has been given guardianship over such matters.

Important to note that the Imam says go to the religious jurist and obtain his view/ruling on ‘the occurring incidents..’, and not: ‘go to the jurist to obtain God’s ruling on the matters’. And Sh al-Ansari considers this to be the main argument for the absolute guardianship of the religious jurist during the greater occultation.

So if this is the view of Sh al-Ansari, who helped put Najaf on the Shia hawza map, and he explicitly states in his book that there is no dispute over this concept amongst Shia scholars (of his time), how is it such a taboo subject nowadays? And more importantly, how can Seyyed Al Khoei claim that there is no explicit statement from the Imam giving such absolute authority to the religious jurists during the greater occultation?

Up to here, we can safely say that there is consensus over these four levels of guardianship and authority. However due to the scholars distancing themselves from positions of government (because of various reasons), this has affected the cultural mindset of people in to thinking that the extent of guardianship given to the religious jurist is limited to issuing religious edicts/fatwas and resolving disputes. Here’s Sh. Al Najafi with the clearest of statements on this matter (his book al Jawahir, vol21, pg 396-7):

الجواهر، ج21، ص396 و 397:  قال الكركي في المحكي من رسالته التي ألفها في صلاة الجمعة اتفق أصحابنا على أن الفقيه العادل الأمين الجامح لشرائط الفتوى المعبر عنه بالمجتهد في الأحكام الشرعية نائب من قبل أئمة الهدى في حال الغيبة في جميع ما للنيابة فيه مدخل بل القطع بأولوية الفقيه في ذلك بعد أن جعله الإمام عليه السلام حاكماً وخليفة وبأن الضرورة قاضية بذلك في قبض الحقوق العامة والولايات ونحوها بعد تشديدهم في النهي عن الرجوع إلى قضاة الجور وعلمائهم وحكامهم بعد علمهم بكثرة شيعتهم في جميع الأطراف طول الزمان وبغير ذلك مما يظهر بأدنى تأمل في النصوص وملاحظتهم حال الشيعة وخصوصاً علمائهم في زمن الغيبة وكفى بالتوقيع الذي جاء للمفيد من الناحية المقدسة وما اشتمل عليه من التبجيل والتعظيم، بل لولا عموم الولاية لبقي كثير من الأمور المتعلقة بشيعتهم معطلة. فمن الغريب وسوسة بعض الناس في ذلك أنه ما ذاق من طعم الفقه شيئاً

‘..our associates are in agreement that the just trustworthy religious jurist who encompasses the necessary conditions to issue religious edicts, otherwise known as mujtahid in the religious laws, is a deputy of the Imams of Guidance during the occultation in ALL that which this deputation is associated with. In fact, they are certain of this matter, since the Imam has made him (the jurist), a ruler and khalifah, and due to the necessity of obtaining the public rights themselves, since the people have been prohibited from resorting to the unjust judges and their scholars and rulers. This matter becomes evident after a little contemplation over the available narrations, and understanding the state of their Shia and their scholars during the occultation, especially from the letter that was given to Sh. al Mufid reverencing and venerating such scholars. In fact, if it wasn’t for this general guardianship, a lot of problems of the Shia would remain unresolved. I find it strange that some still doubt this, it can only be due to his lack of knowledge in religious jurisprudence…’

The fifth level of authority is where the main dispute becomes evident.  Our starting point for this type of guardianship is the quranic verse:

النَّبِيُّ أَوْلَىٰ بِالْمُؤْمِنِينَ مِنْ أَنفُسِهِمْ

‘The Prophet has a greater claim on the faithful than they have on themselves..’ [33:6]

What does ‘a greater claim‘ mean in this verse? Is it absolute or constrained? There is consensus amongst the specialists of quranic exegesis (of all sects) that this claim is absolute (see Al Tabari, Tabataba’i). So if a muslim wanted something, and the Prophet wanted something else, related to a worldly or afterlife matter, then the Prophet’s view has priority.

Question arises on whether this ‘greater claim’  or priority is related to social matters as well. Sh. Al Ansari’s view is that it is absolute and does include matters that affect society, and in this regard Seyyed al Khoei agrees. Also, in short, it is proven that this status is also valid for Imam Ali and his holy household. What we need to establish is whether this authority stands for the religious jurist, or not.

This is where Sh Al Ansari’s earlier comment (in Part 1 of this discussion) becomes clear, in that he considers all previous four aspects to be part of the guardianship of the jurist, except this particular authority of ‘priority’, for which he has not found evidence for its inclusion.

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