Wilayat al-faqTh and the issue of jurists' expanded authority in the absence of the Imam

4.1 Wilayat al-faqih

Ayatullah Khomeini’s original views on wilayat al-faqih were mostly in tune with the con­stitutionalist model. A highly educated UsUli himself, Khomeini deeply shared the UsUli constitutionalists’ frustration of the sudden devaluation and, later, the complete dismantling ofjurists from their constitutional supervisory duties.

4.2 The issue of jurists' expanded authority in the absence of the Imam

4.2.1 Ijtihad and issuing fatwas

Ayatullah Khomeini originally agreed with the constitutionalist jurists, holding that in de­ciding on the scope of a jurist’s authority, in the traditional custodial scope of hisba matters, the logic of qadr al-mutayaqqan (the least amount of certainty) should be applied. The premises of the expanded authority of jurists in Khomeini’s theory are to be found in his relatively variegated reliance on the UsUli doctrine’s designation of jurists as the exclusive holders of authority in issuing fatwa and adjudication. UsUlis by consensus hold that as a rationally established rule, mUkallafUn depending on their religious knowledge are either individually capable of arriving at valid Shari 'ah rulings for questions arising from discharge of duty or should mandatorily do taqlid — commit to follow their chosen mUjtahid’s opinions. Since an overwhelming majority of them needs to perform taqlid, this rationale has become an indispensable part of the ordinary people’s religious and social life. In order to reach this general conclusion, however, Khomeini in his al-Ijtihad wa-l-taqlid, set the following thresh­old foundations:

1) Islam is a comprehensive religion and the Divine text contains all the instructions and guidelines a man may need.

2) The Qur’an is clear on the omnipotence of Divine sovereignty and every Muslim is charged with a mandatory duty to safeguard it. This means that political governance should be based on implementation of the rules of Islamic law.

3) It is impossible to believe that the text has failed to clarify the Muslim umma’s duties in the important matters of governance or to designate who should rule or pass judgment. Belief in such failures would be tantamount to a deviant declaration of the Divine text’s deficiency.

4) By being appointed as Messenger, Muhammad was given the authority to legislate and adjudicate. However, in order to complement his Divine mission, Muhammad was also appointed by God as a political leader charged with setting in operation the principles of a model of political rule that would best safeguard the Divine sovereignty.

Therefore, a mujtahid who is qualified to issue fatwa should be cognizant of all these points and take them into serious consideration when rendering his opinions. Although the con­stitutionalist jurists, in their writings on Ijtihad, did not make the exact political arguments that Khomeini put forth, it is hardly possible to imagine that they would disagree with him.

4.2.2 Qada (adjudication)

Khomeini was a staunch believer of the proposition that ‘law and adjudication are political’.³⁶ Theoretically, the legitimacy and validity of an issued fatwa does not necessarily depend on the Imam’s idhn (licence) and can be obtained from the Book and Sunnah as well as from reason and i ‘tibar aw bina ' al- 'uqala (the credit that should be assigned to the course of action that rational people adopt). According to al-asl 'adam wilayat ahadin 'ala ahad (the principle of absence of authority of someone over the other),³⁷ classic jurists held that only a hukm (ver­dict) issued by either of the following two types ofjudges would legitimately lay restrictions on the disputants’ rights: qadi mansub (a judge whose office has been approved by the Imam);³⁸ or qadi tahkim (a judge chosen and authorized by parties, who has obtained their consent to his verdict prior to proceedings).³⁹

Both types ofjudges must be mujtahid and their competence as a just, reliable scholar of law who is qualified to perform Ijtihad must be verified by either of two ways: bayyina (the testi­mony of other just and reliable people); or shiya' (obtaining a reputation as such in society).⁴⁰ The source of people’s recognition of such qualifications, except for the highly specialized matter of Ijtihad, is the collective social and cultural methods that have been developed by their practical reason, which as mentioned before can be originally based on their religion or any other ways that the concept ofjustice would be comprehended.

4.2.3 Who is hakim?

In the Shi'i legal jargon, the word hakim is used for both a presiding judge and a ruler. Khomeini opined that both applications refer to the Imam’s unified status. Furthermore, he opined that a certain class of jurists, by extension and because of their general deputyship from the Imam, is also qualified to act on behalf of the Imam in both capacities. The word not only derives from the same lexicographical roots as the word hukm, but also has legal and practical implications. A judge’s hukm (ruling) is definitive of the parties’ dispute and shares similarity with the finality of the Imam’s hukm in any Shari 'ah issue. A ruler’s decision, at least in its typical sense, also enjoys legitimacy in resolving the conflicts arising from power politics. The Imam’s rule, in the Shi'i perception, is endowed with equal authority in his exclusive jurisdiction of political power.

Although Khomeini is much more confident in the judicial aspect of the concept, it is his employment of the political aspect, and the consequent equalization of the jurists’ agency with substitution of the Imam on its basis, that subjects Khomeini’s theory to other UsulTs’ critique. There are four UsulT jurists upon whose ideas Khomeini structured his theory.

The first is Ahmad al-Naraqi (d. 1281/1864), who is the progenitor of wilayat al-faqlh in its first rendition as a theory for the expanded authority ofjurists. In the mid-1800s, when the signs of incompetency of corrupt government officials became more prevalent than before and adversely affected the laity’s lives in larger proportion, al-Naraqi, by invoking several tradi­tions attributed to the Prophet and the Imams, argued that jurists are indisputably authorized to act on behalf of the Imam.

Second, Al-Ansari (d. 1281/1864), on the issue of the impermissibility of working for an unjust ruler, held that the nature of prohibition was directed against the acts of oppression committed by an unjust ruler, yet it was permissible if and as long as agency on behalf of such ruler provided an opportunity ‘al-qiydm bi masdlih al-'ibdd’ (to accomplish the best interests of Muslims) and ‘restitute an individual’s violated right’.⁴² Therefore, it became possible to ar­gue that the oppressive characteristic of an unjust rule would be mitigated extensively when these objectives were achieved. This served as the foundation of the Shi'i UsulTs’ view on the essence of governance.

Third, Akhund (d. 1329/1911), the most prominent constitutionalist UsulT leader, in his famous fatwas categorized the hisba matters with more clarity and sophistication in their much broader context as ‘the duty of recommending good and enjoining evil’, and expanded them to include political matters. Moreover, he held that all attendant duties fall in the juris­diction of the constitutionalist parliament.

Fourth, Na'ini (d. 1355/1936), a prominent constitutionalist UsulT, also characterized just rule by amana (trusteeship and assigning executive offices to trustworthy individuals) and resembled a just ruler to the executor of an endowed property, charged with utmost loyalty to its beneficiaries (the people) in safeguarding their rights and subject to their supervision.⁴³

Al-Ansari and Akhund completely disagreed with al-Naraqi on the validity of many of the traditions that the latter had invoked, and strongly rejected any expansion of the jurists’ authority beyond issuing fatwa and adjudication.

Khomeini did not deeply engage in the technicalities of validity of the traditions cited by al-Naraqi. Instead, he argued for the all-comprehensiveness of Shari 'ah and found it imper­ative to deny similitude of any other possibility. He held that the Divine legislation should be pure from any doubt of failure in providing the faithful with sufficient clarity in their duty to live by the laws of Islam, and in the absence of the Imam jurists are the only class of people who are capable of determining what those laws are. Apparently, restitution of vio­lated rights, common interests, rules of trust and deciding on who is authorized to perform the public duty of commanding right and preventing evil are all legal questions that a jurist has to answer. Therefore, by utilizing terms of art in logic, Khomeini claimed that wildyat al-faqdh is a concept whose tasddq (proof) can be established by its tasawwur (imagination). It goes without saying that Khomeini reserved all those matters that were within the exclusive jurisdiction of the Imam.

One last issue would be what kind of jurist under which circumstances is bestowed with such vast authority and holds the centre of the legal, political and judicial universe of the Shi'ite society. Khomeini held that any just mujtahid is potentially an agent of the Imam. However, he argued that the designation of that jurist as a qualified candidate to hold political authority is similar to the designation of a jurist as a judge, with all its attendant verification processes.⁴⁵ This verification is required, Khomeini argued, because a judgment should be capable of effectuation and practical implementation. Such execution cannot be accomplished unless the parties have submitted to the judge’s authority either because of the Imam’s permission or by their prior consent to a non-licensed judge’s decision. A judge can maintain his office as long as his qual­ifications remain intact. In other words, he will be disqualified when people find his conducts or rulings to be incompatible with piety, justness and sufficient knowledge ofjurisprudence. All these limitations, in Khomeini’s view, applied to a jurist who holds the political power.

Khomeini did not elaborate and is ambivalent on the specific issue of the Imam’s licence. It is possible to argue that in his early writings this question was resolved by the candidate’s sta­tus as a lam (the most learned) among all other qualified jurists and to present the proposition that, in Khomeini’s view, being the most learned is similar to having obtained the Imam’s licence. Verification of such learned jurists had roots in the concept of marji'iyya (being a source of emulation), which was well developed and practised in the Shi'i religious culture. At later stages of life, after major Grand Ayatullahs refused to actively engage in politics, Khomeini held Ijtihdd sufficient.

The Imam’s licence, among other important but yet-to-be juristically clarified issues, has become a dividing factor between two competing theories in Iran. Proponents of the first theory, known as nasb (appointment) — mostly active members of the political establishment — overstretch the textual indicators and hold that Ijtihdd meets the standard of licence and appointment by the Imam. Whereas the nakhb (election) theory, supported mostly by non-partisan jurists, maintains that the appointment theory:

1) is ill-devised;

2) invokes weak traditions; and

3) fails to remain loyal to the very same rationale that Khomeini offered, which finds the people’s continued verification, consent and acceptance a key factor in not only the scope ofjurists’ authorities, but also for the establishment of a just legitimate rule in the absence of the Imam.

Simply, the election theory adheres to the constitutionalist UsulT model. Muntaziri and al-Sistani are among the unsurpassable prominent figureheads of the nakhb theory.

Obviously, Khomeini’s position as the Leader of the 1979 Islamic Revolution and later the Supreme Leader of the Islamic Republic was largely established and remained authoritative by both his alamTyya (being the most learned) and immense popular support. Khomeini concurred with the constitutionalist UsulTs’ application of the least amount of certainty rationale in the sense that only a jurist whose qualifications have been verified by the people and has received their consent qualifies to hold both offices of political and judicial authorities. The most con­troversial opinion of Khomeini, which stands in complete opposition to the constitutionalists’ views, is the unlimited scope of a thusly designated jurist’s authority — excepting the exclusive authority of the Imam — which makes his theory subject to the critics’ vociferous objections.

Al-Ansari remained a scholar only and was uninterested in anything political throughout his entire life, whereas the juridical reactions of Akhund, Na'ini and Khomeini were heav­ily informed by the tumultuous social and political conditions in which they lived. These dynamics remain vital in order to see which model will finally prevail: the constitutionalist UsulT model or wilayat al-faqTh. There is an important caveat: Khomeini’s theory has to pass the additional test of the socio-political impacts of his leadership during the first ten years of the Islamic Republic of Iran.

Notes

1 Paul Bremer was the head of the US-led transitional government in Iraq after the US occupation, 2003-2004.

2 Stefan Talmon, The Occupation of Iraq, Volume Two: The Official Documents of the Coalition Provisional Authority and the Iraqi Governing Council (London: Hart Publishing, 2013), 1421, Document 582. Fatwa was issued on 26 June 2003.

3 I do not intend to discuss these two international law theories at length here. It is suffice to say that the United States and the United Kingdom, according to UNSC Res. 1483, paras 4-5, had already placed themselves under the law of belligerent occupation. For further arguments and references, see, in general, Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolu­tion in Iraq (New York: Columbia University Press, 2009), especially pages 25-8.

4 Arato, a Columbia university professor and prominent authority in constitutional theory, was ap­parently perplexed by Sistani’s influence. He wrote: ‘It is a great paradox of the recent constitutional history of Iraq that it was autonomous political and social action on behalf of popular (or populist) democratic constitution making that was to put an end to the open constitutional usurpation of the CPA, putting the process in a channel where it was arguably compatible with creatively interpreted international regulation’. See Arato, Constitution Making, 28.

5 See Talmon, Occupation of Iraq, 1422-3, Documents 584-6.

6 See, e.g., Qur'an, 16:90, 17:26, 2:177, 2:215, 2:83, 4:36, 4:7-8, 9:23-4, 9:113-14, 4:135, 6:152, 33:6, and several other verses. For a reliable analysis, see Wilfred Madelung, The Succession to Muhammad: A Study of Early Caliphate (New York: Cambridge University Press, 1997), 1-27.

7 Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 27; Hossein Modarressi, Kharaj in Islamic Law (London: Anchor Press Ltd, 1983), 155; Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shiite Islam (Princeton, NJ: The Darwin Press, 1993), 6. Hereafter, internal citations in English sources are omitted.

8 Muhammad Husayn Tabataba'i, Shi'ite Islam, trans. and ed. Seyyed Hossein Nasr (Albany, NY: SUNY, 1977), 184.

9 Qur'an 57:25 reads: ‘We have surely sent apostles with clear signs, and sent with them the Book and the Balance, so that men may stand justice’.

10 Hasan ibn Yusuf al-Mutahhar Al-Hilli (d. 726/1325), Kashf al-Murad fi Sharh Tajrid al-Ttiqad, com­ment by Jafar Subhani (Beirut: Al-Amirat, 1427/2006), 109.

11 Ibid., 106 (al-lutfu huwa ma yakunu al-mukallaf maahu aqrabu ila fidl al-ffi "at wa badihi min fid al­ma sTya, wa-lam yakun lahu hazzan fT al-tamkTn, wa-lam yablughu hadd al-Ilja ’).

According to Shi'i theologians, creation of water is not a Divine grace. True, it makes ablution possible, and by ablution one gets closer to perform an act of obedience (prayer). But water by and of itself does not induce ablution unless one decides to use it for ablution.

Mahdi Ha’iri Yazdi, Hikmat wa-Hukumat (London: Shadi Publishing, 1995), 136.

This is a brief description of what Shi'i theologians-jurists have discussed on the concept of lutf and formulated it as: ‘ann al-takalif al-sam‘iyyat alfafu fi al-takalif al- ‘aqliyyat’ (revelatory duties are graces provided for [the intellect to discern] rational duties), Al-Hilli, Kashf al-Murad, 155. For more sources, see Amirhassan Boozari, Shi ‘i Jurisprudence and Constitution: Revolution in Iran (New York: Palgrave Macmillan, 2011), 158 fn. 41.

Boozari, Shi i Jurisprudence, 36.

Ibid.

Ansari, ‘Imamat,’ in Da‘irat al-Ma‘arif-i Buzurg-i Islami, ed. Kazem Musavi Bojnurdi, vol. 10 (Tehran: Markaz Daerat ol-ma'aref-e Bozorg-e Eslami, 2001), 139.

Boozari, Shi i Jurisprudence, 14.

Muhammad Riza Al-Muzaffar (d. 1384/1964), Aqa'id al-Imamiyya (Qum: Mu’assisat al-Imam Ali, 1417/1996), 309-12.

The phrase literally means ‘discovery of the truth in something’. For more, see Boozari, Shi i Juris­prudence, 10, 131-4.

Hossein Modarressi, An Introduction to Shi ‘i Law: A Bibliographical Study (London: Ithaca Press, 1984), 24.

Mahdi Ha’iri Yazdi, Hikmat wa-Hukumat, 141.

Qur’an, 57:25.

It is the prevailing opinion of the Imami Shi'ite jurists that a society without an Imam is on the brink of sedition, mischief and contention. For citations, see Boozari, Shi i Jurisprudence, 172, fn. 46 and 47. Al-Hilli, Kashf al-Murad, 182.

Imam 'Ali, Nahj al-Balagha (Peak of Eloquence), trans. Sayed Ali Reza (New York: Tahrike Tarsile Qur’an Inc., 2002), Sermon 3, 106.

‘One who adopts despotism in opinion, gets ruined and he who seeks other individuals’ opinions, shares in their wisdom’. ‘One who attains power, becomes self-absorbed and ignores others’. Nahj al-Balagha, Short Remarks 160-1 (translations are mine).

Boozari, Shi ‘i Jurisprudence, 53-62, especially 53-5.

Madelung, Succession to Muhammad, 275-7, 310.

‘‘Ali’s Instructions to Malik al-Ashtar’, in A Shi’ite Anthology, ed. and trans. William Chittick (New York: SUNY, 1981), 69.

Boozari, Shi ‘i Jurisprudence, 66-71.

For more on the just sultanate theory, see ibid., 37-43.

For a complete jurisprudential analysis of the constitutionalist Usuli theory, and infra citations for it, see ibid., 45-152.

Major Usuli figures such as Grand Ayatullahs Khu’i and al-Sistani hold this view. Ayatullah Khu’i also excludes adjudication from the jurists’ exclusive scope of authority and limits it to issuing fatwa only.

Ayatullah Khomeini, Al-Ijtihad wa-l-Taqlid (Tehran: Matba'at Mu’assisat al-'Uruj, 1376/1997), 18-20. Leslie Green in H. L. A. Hart, The Concept of Law, 3rd edn, intro. Leslie Green (Oxford: OUP, 2012), xv.

Boozari, Shi i Jurisprudence, 87.

Al-Allamah Al-Hilli, Irshad al-Adh-han ila Ahkam al-Iman, vol. II (Qum, Iran: Qum Seminary, 1410/1989), 138.

Abu Ja'far Muhammad b. Hasan al-Tusi (d. 460/1067), Al-Khilaf vol. VI (Qum, Iran: Qum Seminary, 1407/1986), 241-2.

Ayatullah Khomeini, Tahrir al-Wasila (Tehran: Mu’assisat Tanzim va Nashr Athar al-Imam Khomeini, 1412/2000), 825.

For a complete analysis of al-Naraqi’s arguments, see Boozari, Shi i Jurisprudence, 90-4.

Ibid., 66-70.

Ibid., 106.

Boozari, Shi i Jurisprudence, 104.

Ayatullah Khomeini, Tahdhib al-Usuil, reported by Ja'far Subhani, vol. III (Qum, Iran: Isma'iliyan, 1382/1962), 575.

Selected bibliography and further reading

Ayatullah Khomeini. Tahdhib al-Usul, reported by Ja'far Subhani, vol. III (Qum, Iran: Isma'iliyan, 1382/1962).

Hilli, Hasan b. Yusuf al-Mutahhar al- (d. 726/1325). Kashf al-Murad fi Sharh Tajrid al-I‘tiqad, comm. Ja'far Subhani (Beirut: Al-Amirat, 1427/2006).

Madelung, Wilfred. The Succession to Muhammad: A Study of Early Caliphate (New York: Cambridge University Press, 1997).

Muzaffar, Muhammad Riza al- (d. 1384/1964). Aqaid al-Imamiyya (Qum, Iran: Mu’assasat al-Imam Ali, 1417/1996).

Tabataba’i, Muhammad Husayn. Shi'ite Islam, trans. Seyyed Hossein Nasr (Albany, NY: SUNY, 1977). Yazdi, Mahdi Ha’iri. Hikmat wa-Hukumat (London: Shadi Publishing, 1995).