Guardianship of the Jurist

The Guardianship of the Jurist (Arabic:ولاية الفقيه; Wilāyat al-Faqīh) is a theory in Shia jurisprudence according to which, during the occultation of Imam al-Mahdi (a), governance rests with a fully qualified jurist. Jurists such as al-Shaykh al-Mufid and al-Muhaqqiq al-Karaki discussed the governmental authority of jurists, but Mulla Ahmad al-Naraqi is regarded as the first jurist to comprehensively gather all the authorities and duties of the jurist under the title of the Guardianship of the Jurist.

According to the theory of the Guardianship of the Jurist, authority over all affairs of the Islamic society rests with the Guardian Jurist (al-Wali al-Faqih). Kashif al-Ghita', Muhammad Hasan al-Najafi, and Imam Khomeini are among the proponents of this view, while al-Shaykh Murtada al-Ansari, Akhund al-Khurasani, and Sayyid Abu l-Qasim al-Khoei are regarded as opponents.

The accepted hadith narrated by Umar b. Hanzala is among the textual evidence cited by proponents of the theory of the Guardianship of the Jurist. According to this hadith, in disputes, one should only select as an arbitrator or judge (hakam) someone who narrates hadiths from the Ahl al-Bayt (a) and is knowledgeable in Islamic rulings. The necessity of the existence of a knowledgeable and just ruler for the implementation of divine laws in society is also among the rational arguments adduced by supporters of the Guardianship of the Jurist.

Numerous books and articles have been written on the topic of the Guardianship of the Jurist. Among them are Wilayat-i faqih (known in English as Islamic Government: Governance of the Jurist), authored by Imam Khomeini, and Wilayat-i faqih: wilayat-i fiqahat wa 'adalat (Guardianship of the Jurist: Guardianship of Jurisprudence and Justice), authored by Ayatollah Jawadi Amuli.

Notion

The Guardianship of the Jurist, according to the definitions provided by jurists, means the authority, dominion, and discretionary power of a fully qualified mujtahid over the affairs of others—in other words, the administration of the Islamic society to implement Islamic laws and realizing religious values.

The Guardianship of the Jurist is a theory in Shia political jurisprudence according to which, during the occultation of Imam al-Mahdi (a), the governance of the Muslim society rests with a fully qualified jurist.

History

Some writers consider Mulla Ahmad al-Naraqi (d. 1245/1829) the first jurist who expounded the Guardianship of the Jurist as a distinct jurisprudential issue and employed both textual and rational pieces of evidence to prove it. He was also the first to gather in one place, in his book Awa'id al-ayyam, all the duties and authorities of the Islamic ruler and the Guardianship of the Jurist. Of course, before Mulla Ahmad al-Naraqi, some Shia scholars had spoken of the jurists assuming certain authorities of the Imams. For example, al-Shaykh al-Mufid, a scholar of the fourth/tenth and fifth/eleventh centuries, wrote in his book al-Muqni'a that the Imams of the Shia had delegated the implementation of hudud punishments to Shia jurists. Furthermore, according to the historian Rasul Jafarian, al-Muhaqqiq al-Karaki, a scholar of the tenth/sixteenth century, believed that jurists assume the governmental authorities of the infallible Imams.

After Mulla Ahmad al-Naraqi, Jafar Kashif al-Ghita' and his student Muhammad Hasan al-Najafi (author of al-Jawahir) further elaborated the theory of the appointment of jurists and their guardianship and authorities. They considered a royal or sultanic government that lacked permission from the jurists to be illegitimate, and held that if the necessary conditions are met for a jurist, it is obligatory for him to establish a government.

The development of discussions on the guardianship and authorities of jurists came to a halt with the doubts expressed by al-Shaykh Murtada al-Ansari (d. 1281/1864) regarding the political guardianship of jurists; until in 1969, during his advanced jurisprudence (fiqh) lectures in the Najaf seminary, Imam Khomeini presented the theory of the Guardianship of the Jurist and emphasized the necessity of establishing an Islamic government. His discussions on this subject were published in 1970 in a book entitled Wilayat-i faqih (Islamic Government: Governance of the Jurist).

Arguments by Proponents

Proponents of the theory of the Guardianship of the Jurist have drawn upon numerous rational and textual pieces of evidence to prove it. The accepted narration of 'Umar b. Hanzala and the Tawqi' (signed letter) of Imam al-Mahdi (a) are among the textual pieces of evidence. Based on the accepted hadith of 'Umar b. Hanzala, which is a hadith from Imam al-Sadiq (a), one should select as judge or arbiter (hakam) someone who narrates the hadiths of the Ahl al-Bayt (a) and knows the religious rulings. From this hadith, Imam Khomeini inferred that Imam al-Sadiq (a) appointed the jurist as ruler in both governmental affairs and adjudication. He argues that implementing rulings in society requires power and government. According to his view, the government must be in the hands of the jurist so that he can adjudicate and enforce rulings. He further considers the appointment by Imam al-Sadiq (a) of the position of guardianship for Shia jurists to contain a political secret: by encouraging and motivating jurists to enter the position of judgeship, they would plan and prepare the groundwork for establishing a divine just government, so that if they ever succeed in forming a government, they would not encounter problems and would have prepared the preliminaries in advance.

In the Tawqi' of Imam al-Mahdi (a), mention is made of "al-hawadith al-waqi'a" (occurring incidents), and it is stated that in the face of such events, one should refer to the transmitters of the hadiths of the Ahl al-Bayt (a). Imam Khomeini draws on this Tawqi' to conclude that all affairs of the Islamic society should be entrusted to the jurists.

Muhammad Hasan al-Najafi is among the jurists who supported the Guardianship of the Jurist, to the point that he stated: Whoever does not understand the Guardianship of the Jurist from the various expressions used by the Imams regarding the authorities granted to jurists—such as "hakim" (ruler), "qadi" (judge), "hujja" (proof/authority), and "khalifa" (vicegerent)—has apparently never tasted the flavor of jurisprudence and remains unaware of the secrets and mysteries contained in the words of the Imams. These expressions clearly indicate that during the occultation, the affairs of the Shia must be organized and regulated. He regarded the issue of the Guardianship of the Jurist as so evident and obvious that it does not even require argumentation, and he considered those who oppose it to be afflicted with excessive doubt.

Among the rational arguments is the following: human social life, as well as individual and spiritual perfection, requires not only a divine law that is free from error and deficiency, but also a knowledgeable and just ruler. Without these two pillars, social life would face chaos, corruption, and ruin. This objective is realized in the era of the prophets and Imams through themselves, and during the occultation, it is realized through the Guardian Jurist.

Guardianship of the Jurist: Appointed or Elected?

Proponents of the theory of the Guardianship of the Jurist hold differing views regarding the manner of its legitimacy. Some of them consider the guardianship of the jurist to be an appointed position, while others defend its elective nature.

Guardianship of the Jurist as an Appointed Position

According to this view, the basis for the legitimacy of the Guardianship of the Jurist in political affairs is that the Imams have delegated the management of religious and social affairs, as well as the political administration of society, to just jurists, and the vote or will of the people does not affect the legitimacy of the jurists' guardianship. Imam Khomeini, Abd Allah Jawadi Amuli, Muhammad Mu'min, and Muhammad Taqi Misbah Yazdi are among the advocates of this theory.

Absolute Guardianship of the Jurist

Some proponents of the view that the Guardianship of the Jurist is appointive support the absolute (mutlaqa, or unconstrained) Guardianship of the Jurist; that is, they believe the jurist possesses all the authorities of the Prophet (s) and the infallible Imams in matters of governance and politics, because the goal is the implementation of Shari'a rulings, and in this regard, no rational distinction exists between rulers. Furthermore, the legitimacy of human-made laws is conditional upon the endorsement (tanfidh) of the Guardian Jurist, and law cannot limit or bind the Guardian Jurist; the commands of the Guardian Jurist are equivalent to law.

It is said that this view was first propounded by Imam Khomeini.

Guardianship of the Jurist as Elective

This view considers the vote of the people to be a necessary part of the cause of the legitimacy of the Guardianship of the Jurist; that is, it regards a legitimate ruler as one who is a jurist, just, aware of the times, with the ability to manage and administrate, and whom all or most of the people have also chosen as leader. In this view, the absoluteness of the Guardianship of the Jurist is challenged. Bihishti, Motahhari, Hussein-Ali Montazeri, and Nimatollah Salihi Najafabadi are among the proponents of this theory.

Opponents

Al-Shaykh al-Ansari, Akhund al-Khurasani, Muhammad Husayn Na'ini, and Sayyid Abu l-Qasim al-Khoei are counted among the opponents of the Guardianship of the Jurist. According to the fatwa of al-Shaykh al-Ansari, during the occultation, matters such as issuing fatwas and adjudication fall upon the jurists, but authority over the property and lives of people is exclusive to the Prophet (s) and the Imams (a).

He considers the evidence presented to establish the Guardianship of the Jurist, including reliance on the accepted hadith transmitted by Umar b. Hanzala and the Tawqi' of Imam al-Mahdi (a), to be incorrect. In his view, these hadiths merely express the duty of the jurist in explaining religious rulings to the people and do not indicate their guardianship even in matters such as khums and zakat.

A Theological or Jurisprudential Problem?

Some believe that the Guardianship of the Jurist is a theological issue, while others emphasize its jurisprudential nature. Jawadi Amuli considers the Guardianship of the Jurist to pertain to the field of theology. He argues that the subject of theology is the acts of God, and the Guardianship of the Jurist is also related to the act of God, as God has ordained that during the era of occultation, the jurist should have guardianship in society. In contrast, Hossein-Ali Montazeri has regarded the discussion of the Guardianship of the Jurist as falling within the framework of Islamic jurisprudence, citing as evidence that many jurists have examined this issue in their jurisprudential books.

Guardianship of the Jurist in the Islamic Republic of Iran

After the Islamic Revolution in Iran in 1979, the Guardianship of the Jurist was incorporated into the Constitution of the Islamic Republic of Iran. In Article 57 of this Constitution, it is stated: "The powers of government in the Islamic Republic are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the absolute wilayat al-'amr and the Leadership of the Ummah, in accordance with the forthcoming articles of this Constitution. These powers are independent of each other."

In the Islamic Republic of Iran, Imam Khomeini, and after him Ayatollah Khamene'i, have held the leadership as the Guardian Jurist.

Bibliography

Cover image of the book "Wilāyat al‑Faqīh: Guardianship of Jurisprudence and Justice" by Abd Allah Jawadi Amuli.

Kazem Ostadi, in his book Kitabshinasi-yi hukumat wa wilayat-i faqih (Bibliography of Islamic Government and the Guardianship of the Jurist), has introduced more than seven hundred books on the subject of Islamic government and the Guardianship of the Jurist, most of which were written after the Islamic Revolution. Some of the most important works on the topic of the Guardianship of the Jurist include:

• Wilayat-i faqih: A collection of thirteen lectures delivered by Imam Khomeini in the Najaf seminary on the subject of the guardianship of the jurist, which were given in February 1970. This book was first printed in Beirut in 1971.

• Dirasat fi wilayat al-faqih wa fiqh al-dawlat al-Islamiyya (Studies in the Guardianship of the Jurist and the jurisprudence of the Islamic governance): The lectures and research of Hossein-Ali Montazeri, and one of the most important books in theorizing about the Guardianship of the Jurist. This book has been summarized in the book Nizam al-hukm fi al-Islam (System of governance in Islam). The book Dirasat fi wilayat al-faqih has been translated into Persian by Mahmud Salawati and Abu l-fadl Shakuri under the title Mabani-yi fiqh-i hukumat-i Islami (Foundations of the jurisprudence of Islamic government).

• Wilayat-i faqih; wilayat-i fiqahat wa 'adalat (Guardianship of the Jurist: guardianship of jurisprudence and justice), authored by Abd Allah Jawadi Amuli.

• Wilayat-i faqih: hukumat-i salihan (Guardianship of the jurist: the rule of the righteous), by Nimatullah Salihi Najafabadi.

• Al-Wilayat al-ilahiyyat al-Islamiyya aw al-hukumat al-Islamiyya fi zaman hudur al-Ma'sum wa-zaman al-ghaybah (Divine Islamic guardianship or Islamic governance during the presence and occultation of the Infallible), written by Muhammad Mu'min Qommi in three volumes.

• Wilayat-i faqih dar hukumat-i Islam (Guardianship of the jurist in Islamic governance), a collection of lectures by Allama Tihrani compiled by some of his students in four volumes.