Guardianship of the Islamic Jurist


The Guardianship of the Islamic Jurist, also called the Governance of the Jurist, is a post-Occultation theory in Shia Islam which holds that Islam gives a faqīh custodianship over people. Ulama supporting the theory disagree over how encompassing custodianship should be. One interpretation – Limited Guardianship of the Islamic Jurist – holds that guardianship should be limited to non-litigious matters including religious endowments judicial matters and the property for which no specific person is responsible. Another – Absolute Guardianship of the Islamic Jurist – maintains that Guardianship should include all issues for which ruler in the absence of Imams have responsibility, including governance of the country.
The idea of guardianship as rule was advanced by the Ayatollah Ruhollah Khomeini in a and now forms the basis of the Constitution of the Islamic Republic of Iran. The constitution of Iran calls for a faqih, or Vali-ye faqih, to serve as the Supreme Leader of the government. In the context of Iran, Guardianship of the Islamic Jurist is often referred to as "rule by the jurisprudent", or "rule of the Islamic jurist".

Theory

Wilayat conveys several intricate meanings which are deeply tied to Twelver history. Morphologically, it is derived from the Arabic wilayah, the verbal noun of waliyan: to be near and to have power over something. Technically, wilayat means rule, supremacy or sovereignty. In another sense, wilayat means friendship, loyalty, or guardianship.
The doctrinal basis of the Guardianship of the Islamic Jurist comes at least in part from the hadith where Islamic Prophet Muhammad is reputed to have said "The ulama are the inheritors of the prophets". The issue was mentioned by the earliest Shi'i mujtahids such as al-Shaykh Al-Mufid, and enforced for a while by Muhaqqiq Karaki during the era of Tahmasp I. However, according to John Esposito in The Oxford Dictionary of Islam, Morteza Ansari was the first Islamic scholar to advance the theory of the Guardianship of the Islamic Jurist.
There is a wide spectrum of ideas about Wilayat-Faqih among Ja'fari scholars and it is not limited to two ideas mentioned above. The spectrum starts from restricting the scope of the doctrine to guardian-less matters in Islamic society, such as unattended children, and ends in the idea of absolute authority over all public matters.
Two kinds of Wilayah can be understood. The first kind mentioned in various chapters of Shia fiqh discusses Wilayah over the dead and Wilayah over those who resemble the dead, such as insane, absentee, poor, etc. For example, verse 33 of Sura 17 refers to an inheritor of oppressed slain. This type of Wilayah cannot be applied to a society because none of mentioned conditions hold for the majority of a society. The second kind of Wilayah which appears in principles of faith and kalam discusses Wilayah over sane people. The verse 55 of Sura 5 implies the second type of Wilayah in Quran. The Guardianship of the Islamic Jurist can only be argued in terms of this second notion of Wilayah. Recognition of Wilayat-e Faqih is not similar to emulation of a marja but it should be acknowledged by intellectual reason.

Limited Guardianship of the Islamic Jurist

Traditionally Shi'i jurists have tended to this interpretation, leaving secular power for Shi'i kings called "Sultans." They should defend the territory against the non-Shi'a.
For example, according to Iranian scholar Ervand Abrahamian, in centuries of debate among Shi'i scholars, none have "ever explicitly contended that monarchies per se were illegitimate or that the senior clergy had the authority to control the state." Most scholars viewed the 'ulama's main responsibilities as being:
According to one of the leading Ayatollahs, Sayyid Sistani, Guardianship of the Islamic Jurist
means every jurisprudent has wilayah over non-litigious affairs. Non-litigious affairs are technically called "al-omour al-hesbiah". As for general affairs with which social order is linked, wilayah of a Faqih and enforcement of wilayah depend on certain conditions one of which is popularity of acceptability of Faqih among majority of momeneen.
Notwithstanding his indirect but decisive role in most major Iraqi political decisions, Grand Ayatollah Ali Sistani has often been identified with the quietist school of thought, which seeks to keep religion out of the political sphere until the return of the Imam of the Age.
Similarly, Sistani's mentor the Late Grand Ayatollah Sayyid Abul Qasim al-Musawi al-Khoei is deemed to be one of the most vocal modern day jurists against the innate nature of Wilayat al-Faqih. Al-Khoei restricted the scope of Wilayat al-Faqih to the jurist's authority in terms of wakalah alone while dismissing the notion of the jurist inheriting the intrinsic authority of the Infallibles.
In Al Tanqih fi Sharh al `Urwatil Wuthqa, Kitab al Ijtihad wa al Taqlid, Pg #360 he states:
إن الولاية لم تثبت للفقيه في عصر الغيبة بدليل، وإنما هي مختصة بالنبي والأئمة المعصومين ، بل الثابت حسبما يستفاد من الروايات أمران: نفوذ قضائه، وحجّية فتواه. وليس له التصرف في أموال القصّر أو غير ذلك مما هو من شؤون الولاية، إلاّ في الأمر الحسبي، فإن الفقيه له الولاية في ذلك لا بالمعنى المدعى
“Wilayah for the faqih in the age of ghaybah is not approved by any evidence whatsoever - and it's only the prerogative of the Messenger and the Imams peace be upon them all, rather the established fact according to the narrations lies in two affairs: Him exercising the role of a judge and his fatwa being a proof - and he holds no authority over the property of a child or others which is from the affairs of wilayah except in the hisbi sense, ie. the faqih holds wilayah in this sense not in the sense of being the claimant.”

Absolute Guardianship of the Islamic Jurist

Supporters of absolute guardianship cite verse 62 of sura 24 and believe that collective affairs are under the Guardianship of the Islamic Jurist at most. Those scholars who believe in the necessity of establishing an Islamic state say that within the boundary of public affairs the guardianship must be absolute, otherwise the state can not govern the country.
The idea of the Absolute Guardianship of the Islamic Jurist gained influence with the success of Ayatollah Khomeini's leadership of the Iranian Revolution. Earlier, Khomeini had expanded on it in his book . He presented the concept as necessary to protect and preserve Islam during the Occultation of the Imam. According to Khomeini, society should be governed by those who are the most knowledgeable about Islamic law.

Velayat-e Faqih in the Iranian constitution

According to the constitution of Iran, Islamic republic is defined as a state ruled by Islamic jurists. In accordance with verse 21/105 of the Koran and on the basis of two principles of the trusteeship and the permanent Imamate, it is counted as a function of jurists. Also it is explained that only those jurists are entitled to rule who are upright, pious and committed experts on Islam.
Also those who are informed of the demands of the times and known as God-fearing, brave and qualified for leadership. Also they must hold the religious office of source of imitation and be permitted to deliver independent judgments on general principles. Chapter one of the constitution, where fundamental principles are expressed, states that continual ejtehad by qualified jurists is a principle in Islamic government. Likewise Article 5 expresses that an individual jurist who is endowed with all necessary qualities, or a council of jurists, has the right to rule in the Islamic republic as long as the Twelfth Imam remains in occultation. Also article 57 and 110 show the exact meaning of the ruling jurist's power. According to article 57, the jurist has supervision over three other branches. According to article 110 these supervisory powers are as follow:
These powers belong to the Supreme Leader as a Vali-e-faqih.

Religious and political positions

According to the Constitution of the Islamic Republic of Iran, during the occultation of the Wali al-'Asr, the Guardianship and the Leadership of the Ummah devolve upon the just and pious jurist, who is fully aware of the circumstances of his age, courageous, resourceful, and possessed of administrative ability. Also, in another article states that the powers of government in the Islamic Republic of Iran are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the Absolute Guardianship and the Leadership of the Ummah that refers to the Supreme Leader of Iran.

History

"Limited Guardianship of the Islamic Jurist" has been known since Sheikh Mofid, When Ijtihad among the Shi'a emerged in 10th century CE. On the basis of this jurists have judged and take Khoms.
Absolute Velayat-e faqih was probably first introduced in the Fiqh of Ja'far al-Sadiq in the famous text book Javaher-ol-Kalaam. Later, Ayatollah Molla Mohammad Mahdee Naraqi of Iran published a paper advocating a modest level of political actions for Islamic leaderslimited velayat-e-faqih.
By the time of Iranian Constitutional Revolution, Ayatollah Sheikh Fazlollah Nouri customized this theory to match with Iranian Majles of National Council, which was removed when he was executed by those opposed to his idea of Islamic government. Nevertheless, an extensive "guardianship" was given to clerics.
Ayatullah Khomeini in 1970 gave a series of lectures that became a book Hokumat-e Islami: Valiyat-e faqih arguing that monarchy was "un-Islamic". In a true Islamic state those holding government posts should have knowledge of Sharia, as well as having intelligence and administrative ability.
The theory is also a key ideology of the Lebanon-based Hezbollah.

''Velayat-e faqih'' in practice

Clerics in politics of Iran

Iran has become the first nation-state in history to apply absolute velayat-e faqih in government. Guardianship of the Islamic Jurist in the Islamic Republic of Iran is represented not only in the Supreme Leader, who must be a cleric, but in other leading bodies, particularly the Assembly of Experts whose members must be clerics, the Council of Guardians, half of whom must be clerics, and the courts. Friday prayer leaders are appointed by the Supreme Leader as well.

Criticism

Opposition among scholars

scholars of Qom and Najaf hawzas criticise Iranian system of governance, while the Big Four, among them Grand Ayatollah Ali al-Sistani, oppose the concept actively. In fact, a large segment of the clerical Shia population does not believe in the theory of velayat-e-faqih and thinks the clergy should stay away from politics. The majority of Shi'a accepted the late Grand Ayatollah Seyyed Hossein Borujerdi as the most prominent scholar. It was only after his death that Ayatollah Ruhollah Khomeini published his first political and social treatise in which he explicitly called for active participation in political matters. Throughout his life, Ayatollah Hosain Borujerdi, who was a quietist and therefore refrained from taking political stances, forbid his student Khomeini from engaging in non-religious matters.

Persecuted scholars in Iran

Twelver Shia Muslims have to follow one of several different marjas in the matters of fiqh. However, Ayatollahs hold different opinions in some of the matters, especially those considering the system of rule during the absence of Imams. Some disapproved of the concept to establish an Islamic rule on Earth before the arrival of Imam Mahdi. Others disagree with the policies implemented by Ayatollah Khomeini, and/or his successor, Ali Khamenei. Impartial list of Ayatollahs that were and are being persecuted in post-1979 Iran for their opposition to the ruling regime: