The Imams and politics
The prevailing opinion among the Shi'i scholars has always been that political leadership is within the Imams’ inherent rights to complete their wilaya. The bifurcated nature of leadership, however, should scale more towards the spiritual-legal component than the temporal (political) component.
With the uniquely specific case of the 12th Imam in mind, Shi'i scholars collectively believe in a version of millenarianism, according to which Mahdi will certainly be very active in establishing justice, pursuing political power and retaking the reign from illegitimate oppressive sovereigns. Ali took the reign in one of the most turbulent periods of early history of Islam when the masses approached him to succeed a slain Caliph. Ali cited two reasons for his acceptance of political leadership: the people’s demandcommitment and the pledge from Allah with the learned to oppose the injustices of the rich and powerful imposed on the poor and weak.26 Ali’s invocation of popular demand and consent has clearly advanced it to a precept of legal and moral value that practically effectuated his right to political rule.Ali believed that power can be a predilection for despotism.27 Upholding the Prophetic rule, he adhered to a contractarian model of governance where political rule is viewed as an agreement entered in to by the ruler and the governed in order to strike balance between the individual rights of the governed and the ruler’s right to be obeyed.28 Ali refused to make financial concessions, to the detriment of his rule, and adopted egalitarian policies by which everyone would get an equal monthly stipend from the treasury as long as they would not resort to armed opposition and violence.29 He instructed his appointed governor of Egypt:
Infuse your heart with mercy, love and kindness for your subjects.
Be not in face of them a voracious animal. Counting them as easy prey, for they are of two kinds: either they are your brothers in religion or your equals in creation.30These are the main vectors of an Imamite rule.
3.1 Juristic interpretations of the Imam's rule
Theoretically, only the Imam’s rule can establish justice and fully represent the Divine sovereignty. Full-scale legitimacy of the political leadership is reserved only for the Imam. Illegitimacy of a non-Imam rule may only be partially remedied by as far as justice can be obtained. Jurists have usually viewed a just non-Muslim’s rule more favourably than an unjust Muslim’s one. These premises, however, did not create an articulated theory of public law, which remained an obscure part offiqh well until the constitutionalist revolution of 1905.
Beside the regular tasks, the prevailing traditional theory was that Mahdi had exclusive wilaya over those major areas of law that Mufid had described as ‘putting in operation the huddd Allah or divine rights’, such as the call for jihad (offensive war), anfal (booty gained without war), khums (a religious tax), zakat (alms-giving), Friday Prayer and the execution of hudud punishments. In the context of Divine sovereignty, Divine rights can be defined as those Divine commands, ordained in the Qur’an and supported by the Prophetic Sunnah, that are immune from transgression, to be upheld and regarded as a public duty that bind both ruler and the ruled. The traditionalist jurisprudence takes a mainly positivist approach to the concept of Divine rights and, thus, enumerates only those actions that are called for in the Book confirmatively. There is, however, another set of commands, expressed often in a rather apophatic-prohibitive form, that also deserves proper juristic treatment such as condemnation of oppression, usurpation of God’s omnipotent domination, arrogant assumption of self-sufficiency and denying obedience to God, acting in substitution of God, etc.
That positivist approach was attuned with the Usdild jurists’ theories, developed as legal maxims, which prohibited assisting an oppressor ruler. Those maxims included man al-wildya min qibal al-jd'ir (general prohibition of seeking or obtaining agency from an oppressive ruler) and hurmat al-I 'ana 'ala al-Ithm wa-hurmat I 'dnat 'ala al-zalim ft zulmihi (prohibition of abetting an oppressive ruler and his oppression),31 and most recently, qa ' idat al-' adala wa-nafy al-zulm (principle ofjustice and negation of oppression). All such theories and legal maxims apparently revolve around the kind of authority that deals with the implementation of fundamental rules that govern the relationship between state and society where the state uses its coercive power to induce obedience. Shi'i jurists, therefore, drew two conclusions: 1) in addition to personal conduct matters, Mahdi’s wildya extends to all those areas of public law that state regulates and administrates its subjects’ rights and duties as a community; and 2) the office of a non-Imam ruler, technically called jd 'ir (lit. oppressor), is unjust and suffers from a legitimacy deficit as it usurps the exclusive authority of the Imam in delineating borders of the divine rights. Therefore, legitimacy is completely established only when the Imam holds the political power. In keeping with satisfying the Shi'ite communities’ need to social order and lawful obedience to the rules of Shari 'ah, the pre-modern jurists derived from the Imams’ general rulings a form of general deputyship (niydbat 'dmm) that would provide the jurists agency in determining rules of personal conduct. In the absence of the Imam, private law remained the exclusive jurisdiction ofjurists in Shi'ite societies.
Attempts were made, in the early stages of the Safavid dynasty (1502—1722), to resolve the ensuing conflicts of the absence of the Imam by assigning his religious authority to the most learned jurists and his political authority to monarchs.
The main objective of this scheme, known as the just sultanate model, was to enforce the long-standing concept of rule of law by providing the leading jurist with a mainly legislative power that would bind and limit the monarchs’ administration of executive power. This model, however, was unable to resolve two major self-generated dilemmas: 1) Division of authorities would logically assume an extensive degree of distinction of religious and political questions. Where would the line of separation be drawn? What was religious or political? 2) With general deputyship from the Imams, there was little doubt as to the legitimacy of such high ranking jurists. Questions remained as to where the king obtained his legitimacy from. Would it be possible to arrive at anything remotely close to the idea of the Divine appointment of monarchs?32 Unsurprisingly, the just sultanate model was plagued with the despot kings’ overreach of power and the acquiescence of compromising jurists. At the later stages of the Qajar dynasty (1785—1925), it further proved dysfunctional when despot, corrupt and extremely incompetent kings failed to confront the expansionist policies of the Russian Empire that imposed two major wars against Iran, and the colonialist interventionism of the British Empire that never stopped impoverishing its economy deeper. The continued inefficiency, lack of competence and illegitimacy of kings practically created the potential for a wider scope of authority for jurists. Insofar as those deficiencies could be remedied with the complacency of jurists, both the borders of such wider authority and a stable balance of the relation of state and society would be less clear and achievable. The 1905—1911 constitutionalist revolution in Iran put an end to the actual life of this model.The just sultanate model was heavily challenged by the Muslim societies’ national movements against the tyranny of despotic rule of monarchs, colonialism, neocolonialism and the puppet regimes, with popular demands for political independence, rule of law and democracy.
In the first decades of the 20th century, Usult jurists strongly supported, and at times took leadership of, the national movements in Iran and Iraq. While condemning all forms of authoritarianism, including religious despotism, and advocating individual rights, these jurists engaged in polemical disputes with the traditional supporters of the just sultanate model and strongly argued that in the absence of the Imam, the authority to attend to all the issues that would disatisfy God if left ignored and neglected, or hisba matters, belongs to the people. The concept of hisba originally relates to the laws of charitable protection of legal interests of those who are mentally or physically disallowed to decide on their ownership or financial rights, such as the insane or absentees. The scope of hisba emanated from the duties and rights attendant to the broader concept of enjoining good and prohibiting evil and became even more complicated with further sophistication of the Islamic state in the pre-modern era to the extent that it included administrative law. Therefore, a hisba matter, interplaying between right and duty, is intertwined with the concept of public duties in Islamic law. In a modern rendition of this concept, it is fair to claim that hisba matters are what we generally view as secular (temporal) affairs. The traditional juristic view holds jurists to be most qualified to take charge of hisba duties, followed by trustworthy non-jurist individuals. To the constitutionalist Usuli jurists: 1) the authority to discharge many of these public duties belongs to the public, not jurists; 2) governance is a hisba matter and, therefore, the right to govern originates from and belongs to the people; and 3) the people have an inherent right to rebel and should be able to employ it against despotism and corruption of state, social and economic inequality, and resistance against aggressors to their homeland. 33 They also held that the scope ofjurists’ authority is restricted to issuing fatwa and adjudication, and the rationale for prioritizing jurists in hisba matters, except for passing judgments, can only be justified if the juridical logic of qadr al-mutayaqqan (the least amount of certainty) is applied.34While maintaining the legitimacy deficit of a non-Imam’s rule, the Usuli constitutionalists’ sophisticated arguments found constitutionalism to be the closest model to Imamate and established the following theoretical precepts for any Shi'i political model:
1) in the absence of Imam, hakimiyya (sovereignty) bi-l-'asala wa bi al-Istiqlal (in principle and independently) belongs to the people;
2) thus, constituent power originates from the people and constitution is a contract that binds the ruler;
3) elected members of parliament represent the public’s role in the realm of practical reason; and
4) every piece of legislation which is not in apparent incompliance with the prohibitive rules of Shari‘ah can be considered Islamic and should enjoy the status of legality.
The last of these was the task of a supervisory committee ofjurists, whose jurisdiction would be exclusively limited to the judicial enactments of parliament. The progressive results of the 1905—1911 constitutionalist revolution reverted to authoritarianism chiefly because of the external interventions of the two dominating Russian and British empires. The constitutionalist revolution was extremely successful and influential in unifying major parts of the Shi'i jurisprudence, especially in muamalat (contracts, torts, personal status) and adillat al- ithbat (litigation and evidence), with the Iranian Civil Code, a major outcome which remains mostly intact to present.
The disappointing impact of the constitutionalist revolution’s defeat was exacerbated by the decimation of the 1921 Iraqi resistance against the British Empire’s occupation. Furthermore, the devastating consequences of the Second World War in the Middle East met with little to no independent reactions from the Pahlavi kings (1925—1979) in Iran. Constant encroachment of the legislative power and co-opting its members by manipulated elections, dismantling the jurists’ supervisory committee and gradually but completely removing them from judicial positions, and a CIA—MI6-led coup against the constitutionalist Prime Minister in 1953 that reinstalled the fugitive king Muhammad Reza as practically a puppet were not only undeniable facts but also moving factors for the new generation of UsUli jurists, led by Ayatullah Khomeini, to offer wiliyat al-faqih (comprehensive authority of the jurist), which was primarily a minority view.
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