Priority: b, Quality: b
Without references

Sharia ruler

From WikiShia
Jump to: navigation, search

Ḥākim al-Sharʿ (Arabic: حاکِم الشَرْع) or shariʿa ruler is a person in charge of the laws of sharia or jurisprudential rulings. The main sharia rulers are the Prophet Muhammad (s) and the Imams (a) who were given the position by God. General examples of sharia rulers are certain people who represented the Imams (a). During the Major Occultation, Shiite authorities are in charge of jurisprudential rulings as general deputies of the Imams (a). There is a disagreement among jurists with respect to the scope of the power of a sharia ruler during the occultation. Some people believe in a wide-ranging general guardianship for a sharia ruler, while others restrict it to domains mentioned in jurisprudential texts.

Sharia Ruler: In Charge of Jurisprudential Rulings

In Shiite jurisprudence and principles of jurisprudence, "hakim al-shar'" or "sharia ruler" refers to a person who is in charge of jurisprudential rulings, that is, a person who is qualified for issuing fatwas and adjudicating disputes between people.[1] Some people believe that the notion of sharia ruler prevailed in texts of the Imami jurisprudence since the period of al-'Allama al-Hilli as opposed to an unjust ruler.[2] The majority of Imami jurists believe that a qualified jurist counts as the sharia ruler in the period of occultation.[3] Shahid Sadr held that it is obligatory to follow the rulings of a sharia ruler.[4] Thus, many jurists believe that a qualified jurist can, in addition to issuing fatwas, issue rulings on all relevant cases.[5] There are two differences between a "ruling" and a "fatwa": First, only the followers of a marja' are under the obligation to follow his fatwas, but all people — including the followers of other marja's — are under the obligation to follow his rulings. Second, a fatwa is merely a statement of a jurisprudential ruling, while a ruling is concerned with particular cases and has an imperative executive aspect, such as adjudication, ruling for the ban of a bankrupted person from manipulating his or her possessions, and the like. [6]

Types of Sharia Rulers

According to Qur'anic verses, "hakim" (ruler) is a Divine Attribute, and God as a legislator has assigned His rule to certain people. This occurs in two ways:[7]

  1. Direct: the Prophet (s) and the pure Imams (a) are directly assigned the task of legislation by God through the revelation.[8] Some prophets have been mentioned in the Qur'an as having wilaya or rule on behalf of God; for example, Abraham (a) (Qur'an 26:83), Lot (a) (Qur'an 22:74), Moses (a) (Qur'an 26:21), and Solomon (a) (Qur'an 22:79).[9]
  2. Indirect: sharia rulers who have been appointed by the Prophet (s) and the Imams (a). The appointment is done in two ways:[10]
  • The special deputies: the people who were appointed by the Prophet (s) or Imams (a) in person during the period of their presence, such as the Four Deputies who were appointed by Imam al-Mahdi (a).
  • The general deputies: jurists who have been generally introduced in hadiths transmitted from the Infallibles (a) as having the task of taking care of people's affairs after the Major Occultation.[11] Such deputies, who are referred to in jurisprudence as sharia ruler or marja', is a collective obligation.[12] Some jurists have set certain general conditions in order for a person to be qualified as a deputy; conditions such as maturity, sanity, being a man, being a believer, righteousness, being a scholar, as well as being a legitimate child and enjoying strong memory and power of speech.[13] Specific conditions include the power of ijtihad and the power to deduce jurisprudential rulings from the Four Sources by drawing upon the mastery of the principles of jurisprudence, Arabic literature, theology, and logics.[14] However, such conditions are not introduced in Sunni sources. A sharia ruler for them is said to be the same as a sharia judge who adjudicates disputes on the basis of sharia.[15]

Arguments for the Wilaya of a Sharia Ruler

Jurists have suggested a variety of arguments for the wilaya or rule of indirect sharia rulers as general deputies or marja's (authorities):[16]

1. Rational argument: the same rationale for the necessity of there being an Imam appointed by God to protect the lands and organize religious and mundane affairs of people shows that it is necessary for there to be a deputy for the Imam when he is absent or not available.[17]

2. Hadiths: below are some hadiths that are held to imply the ruler of general deputies:[18]

  • Religious scholars are heirs of prophets.[19]
  • Religious scholars are trustees of prophets.[20]
  • Religious scholars are successors of the Messenger of Allah.[21]
  • Religious scholars are the best people after Imams (a).[22]
  • Religious scholars are rulers of kings.[23]
  • Religious scholars are guardians of people who have no guardians.[24]
  • And the maqbula (accepted) hadith of 'Umar b. Hanzala as well as the hadith of Abu Khadija that imply that a person who knows the rulings of the Imams (a) is the ruler and judge of people, and the rejection of such a person is equal to the rejection of the Imam.[25]

3. Acquired and transmitted consensus.[26]

The Scope of a Sharia Ruler's Rule

There are two views about the scope of the rule or government of an indirect sharia ruler or marja':[27]

  1. Special or hisbiyya (administrative) wilaya: the rule of a marja' is only effective in cases which are explicitly mentioned in the Qur'an or hadiths, such as the settlement of disputes. Thus, by default the sharia ruler has no wilaya unless there is evidence for it. Thus, if there is a doubt in a specific case whether the sharia ruler has wilaya or not, that case should not be treated as one in which the sharia ruler has wilaya.[28]
  2. General wilaya: the wilaya that a marja' has as a sharia ruler is the same as the wilaya that the Infallible Imam (a) has. Thus, the scope of a marja's wilaya includes all the affairs of Muslims except in cases where there is a specific reason to exclude. Thus, in doubtful cases, the sharia ruler has wilaya.[29]

The majority of jurists have discussed the scopes of the rule or government of a sharia ruler in the section of transactions or business in jurisprudence.[30] According to some of them, the general wilaya includes all mundane and religious affairs of Muslim communities. Thus, the wilaya that the Infallibles (a) had in virtue of their infallibility and other respects, such as the wilaya over people's lives and properties, do not hold for the sharia ruler.[31]

Sharia Ruler in the Islamic Republic of Iran

Main article: Wilayat al-Faqih

Some people believe that in the Islamic Republic where the wilayat al-faqih has general wilaya over people's religious and mundane affairs as the Supreme Leader, he has a higher-ranking place than other jurists, and it is only his rulings in social, political, and other governmental affairs that are effective.[32] These people appeal to the theory of the wilayat al-faqih to show that a jurisprudent-guardian is an Islamic ruler. When there is conflict between the rulings of the Islamic ruler and other marja's, these people believe that the ruling of the Islamic ruler or the wilayat al-faqih should be enforced and followed.[33] They believe that marja's can issue rulings only in cases where there is no conflict with social and governmental affairs, such as the appointment of a supervisor or guardian for an orphan, and the like.[34]

with regard to the conflict between two sharia rulers, 'Ali b. Muhammad Rida b. Hadi al-Najafi (d. 1411/1990) says in his book, al-Nur al-sati' fi l-fiqh al-nafi', that although all qualified jurists can have the position of a sharia ruler, when one of them became the ruler, the others are not allowed to conflict or oppose him; it is even forbidden for them to do so. This is because, firstly, it is a collective obligation to serve as the sharia ruler, so when one jurist undertakes the tasks of a sharia ruler in a sufficient way, it is not permitted to conflict him, just like other collective obligations. Secondly, conflicts or oppositions in this case may lead to chaos and disputes that are certainly disliked by God.[35]

Notes

  1. Qummī, Al-Dalāʾil, vol. 4, p. 356.
  2. Labānī Muṭlaq, "Ḥākim-i Sharʿ", vol. 20, p. 33.
  3. See: Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 341; Rūḥānī, Fiqh al-Ṣādiq, vol. 16, p. 169; Qummī, Al-Dalāʾil, vol. 4, p. 256.
  4. Ṣadr, Al-Fatāwā al-wāḍiḥa, p. 632.
  5. See: Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 389-395.
  6. Miṣbaḥ Yazdī, Pursishhā wa pāsukhhā, vol. 2, p. 36.
  7. Ḥaydarī, Wilāyat al-faqīh, p. 191-195.
  8. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 370-372; Ḥaydarī, Wilāyat al-faqīh, p. 192.
  9. Labānī Muṭlaq, "Ḥākim-i Sharʿ", vol. 20, p. 33.
  10. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 375-377; Ḥaydarī, Wilāyat al-faqīh, p. 193.
  11. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 341; Ḥaydarī, Wilāyat al-faqīh, p. 192.
  12. Shahīd al-Thānī, Al-Rawḍat al-bahīyya, vol. 1, p. 236; Rūḥānī, Fiqh al-Ṣādiq, vol. 16, p. 169.
  13. Shahīd al-Thānī, Al-Rawḍat al-bahīyya, vol. 1, p. 236; Rūḥānī, Fiqh al-Ṣādiq, vol. 16, p. 169.
  14. Shahīd al-Thānī, Al-Rawḍat al-bahīyya, vol. 1, p. 236.
  15. Labānī Muṭlaq, "Ḥākim-i Sharʿ", vol. 20, p. 33.
  16. See: Ḥakīm, Nahj al-fiqāha, p. 299-303.
  17. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 343; Ḥaydarī, Wilāyat al-faqīh, p. 221.
  18. Ḥaydarī, Wilāyat al-faqīh, p. 204-220.
  19. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 350; Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 564.
  20. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 354; Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 566.
  21. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 355; Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 566.
  22. Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 568; Raḥmān Sitāyish, Rasāʾil wilāyat al-faqīh, p. 119.
  23. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 360; Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 569.
  24. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 358; Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 570.
  25. Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 570; Raḥmān Sitāyish Rasāʾil wilāyat al-faqīh, p. 121.
  26. Baḥrānī, Al-Ḥadāʾiq al-Nāẓira, vol. 13, p. 563; Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 348; Ḥaydarī, Wilāyat al-faqīh, p. 220.
  27. See: Ḥakīm, Nahj al-fiqāha , p. 299-303.
  28. Ḥaydarī, Wilāyat al-faqīh, p. 191-195; Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 341.
  29. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 341, 379.
  30. Hāshimī Shāhrūdī, Farhang-i fiqh, vol. 3, p. 199.
  31. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 370-372.
  32. Jawādī Āmulī, Wilāyat-i faqīh, p. 468.
  33. Jawādī Āmulī, Wilāyat-i faqīh, p. 468-469.
  34. Jawādī Āmulī, Wilāyat-i faqīh, p. 469.
  35. Kāshif al-Ghiṭāʾ Najafī, Al-Nūr al-sāṭiʿ, vol. 1, p. 389-390.

References

  • ʿAmilī al-Shahīd al-Thānī, Zayn al-Dīn b. Nūr al-Dīn ʿAlī b. ʾAḥmad al-. Al-Rawḍat al-bahīyya fī sharḥ al-Lumʿa al-Dimashqīyya. Edited by Sultān al-ʿUlamāʾ Ḥasan b, Muḥammad. Qom: Intishārāt-i Daftar-i Tablīghāt-i Islāmī, 1412 AH.
  • Baḥrānī, Yūsuf b. Aḥmad. Al-Ḥadāʾiq al-Nāẓira fī aḥkām al-ʿitra al-ṭāhira. Edited by: Muḥammad Taqī Īrawānī & ʿAbd ah-Razzāq Muqarram. Qom: Daftar-i Intishārāt-i Islāmī-yi Jāmiʿat al-Mudarrisīn, 1405 AH.
  • Ḥakīm, Sayyid Muḥsin Ṭabāṭabāyī. Nahj al-fiqāha . Qom: Intishārāt-i 22 Bahman, n.d.
  • Hāshimī Shāhrūdī, Sayyid Maḥmūd. Farhang-i Fiqh muṭābiq-i madhhab-i Ahl al-Bayt. Qom: Muʾassisa-yi Dāʾirat al-Maʿārif-i Fiqh-i Islāmī, 1382 Sh.
  • Ḥaydarī, Muḥsin. Wilāyat al-faqīh Tārīkhhā wa Mabānīhā. Beirut: Dār al-Walāʾ li-l-Ṭibāʿa wa al-Nashr wa al-Tawḍīʿ, 1426.
  • Jawādī Āmulī, ʿAbd Allah. Wilāyat-i faqīh wilāyat-i fiqāhat wa ʿidālat. Qom: Markaz-i Nashr-i Asrāʾ, 1379 Sh.
  • Kāshif al-Ghiṭāʾ Najafī, ʿAlī b. Muḥammad Riḍā b. Hādī. Al-Nūr al-sāṭiʿ fī al-fiqh al-nāfiʿ. Najaf: Maṭbaʿat al-Ādāb, 1381 AH.
  • Labānī Muṭlaq, Muḥammad Ṣādiq. 1391 Sh. "Ḥākim-i Sharʿ", Dāʾirat al-Maʿārif-i Buzurg-i Islāmī 20, p. 33.
  • Miṣbaḥ Yazdī, Muḥammad Taqī. Pursishhā wa pāsukhhā. Qom: Muʾassisa-yi Āmūzishī wa Pazhūhishī-yi Imām khomini, 1380 Sh.
  • Qummī, Sayyid Taqī Ṭabāṭabāyī. Al-Dalāʾil fī sharḥ-i muntakhab al-masāʾil. Qom: Maḥallātī, 1423 AH..
  • Raḥmān Sitāyish, Muḥammad Kāẓim. Rasāʾil wilāyat al-faqīh. Qom: Intishārāt-i Daftar-i Tablīghāt-i Islāmī, 1425 AH.
  • Rūḥānī, Sayyid Ṣādiq. Fiqh al-Ṣādiq. Qom: Dār al-Kitāb, 1412 AH.
  • Ṣadr, Sayyid Muḥammad Bāqir. Al-Fatāwā al-wāḍiḥa wifq li-madhhab Ahl al-Bayt. Beirut: Dār al-Taʿāruf li-l-Maṭbūʿāt, 1403 AH.