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Contending Discourses in Shiᶜi Law on the Doctrine of Wilāyat al-Faqīh

Published online by Cambridge University Press:  01 January 2022

Shahrough Akhavi
Shahrough Akhavi*
Affiliation:
Department of Government and International Studies, University of South Carolina
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Extract

The concept known in Shiᶜite jurisprudence as wilāYat al-faqīh has been interpreted in various and contending ways over the course of time. In order for us to examine these differences, we need to establish a few points. First, although the Qurᵓanic revelation bears principally on issues of morality and piety, early Muslims deemed it essential to relate these issues to practical matters in the exercise of authority. Second, rulership in the Islamic community (ummah) was a prerogative of the Prophet, whose mode of governance was to blend the approximately six hundred verses of the scripture that dealt with social affairs with the customary law (ᶜurf) of Western Arabia. After the Prophet's death, it was necessary to add to this mix a third ingredient, namely, the interpretation, by those knowledgable in the law, of how the Prophet would have met unanticipated contingencies.

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Articles
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Iranian Studies , Volume 29 , Issue 3-4 , Summer Fall 1996 , pp. 229 - 268
Copyright
Copyright © Association For Iranian Studies, Inc 1996

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References

1. Khomeini, of course, accepts the argument that imāmah is one of the uṣūl al-dīn. The interesting point is whether he regards wilāyat al-faqīh to be part of the uṣul or not. In his 1941 publication, Kashf al-asrār, he wrote as follows: “The wilāyah of the mujtahid … has been the subject of discussion among mujtahids, since the first day— both in regard to whether it is a foundational issue [aāl; pi. uṣūl] or not and in regard to the limits of the wilāyah and its sphere. This [matter] is one of the branches of jurisprudence \furūᶜ fiqhīyah] for which the disputing parties bring forward arguments, most of which are ḥadīths attributed to the Prophet and the Imams” (cited in Tafṣīl va taḥlīl-i vilāyat-i muṭlaqah-yi faqīh [Tehran: Nahzat-i Azadi-yi Iran, 1367 Sh./1988], 30). However, as will be seen below, in 1988 he was to refer to wilāyat al-faqīh as one of the uṣūl after all.

2. Calder, Norman, “Accommodation and Revolution in Imami Shiᶜi Jurisprudence: Khomeini and the Classical Tradition,” Middle Eastern Studies 18, no. 1 (January 1982): 4CrossRefGoogle Scholar.

3. Even Calder, cited above as supporting the view that all the functions of the Imam save jihād were seen to have devolved upon the jurists, notes that “the question that presented itself [in the Qajar period] was how to mold or influence an illegitimate government, not how to achieve an ideal sharᶜī state ruled by & faqīh” (“Accommodation and Revolution,” 7).

4. Ibid., 4. Calder maintains that by the mid-16th century the jurist, or faqīh, was acknowledged as the general deputy (nāᵓib ᶜāmm) of the Hidden Imam. He places this development as occurring sometime before the death of Zayn al-Din b. ᶜAli al-ᶜAmili (known as al-Shahid al-Thani, d. 1559). Sachedina claims that the principle that the jurists were the general deputies of the Imam was established already in the period of the Lesser Occultation (873/4–940/1). Here is how he puts it:

It is important to bear in mind that, according to the Imamite understanding of the Qurᵓan, the question of divinely guided leadership—possessing the wilāya (the faculty that enables a person to assume authority and exact obedience)—is of utmost significance in attaining the goal of [a] just social order, because it is only through divinely guided leadership that the creation of an ideal society could be actualized. However, during the occultation of the Imam, when the ṣāḥib al-wilāya (the wielder of authority) is in concealment, there arises the question of the exercise of the wilāya, which as I have shown, is concerned with the entirety of the life of the Muslim community. This is because believers in Islamic revelation have never relinquished their belief in the identity of religion and government as they saw them embodied in the Prophet. It was this belief in the goal of Islamic revelation that necessitated belief in the continuation of the divine wilāya in the individual who afforded the necessary guidance for the good estate of the community.

The institution of niyābat al-imām (the deputyship of the Imam) during the occultation, from its inception during the Short Occultation (A.D. 874–941), came to be viewed as metaphysically connected with the source of divine authority (al-wilāyat al-ilāhiyya), the Imam, whom these individuals represented among his followers. As such, the deputyship of the Imam was always viewed as not only the logical extension of the religious authority of the Hidden Imam, but also as the authority that possessed the necessary legitimacy through fully accredited documentation.

Earlier, Sachedina had referred to the jurists in the period of the lesser occultation as “assuming] the role of functional imams.” See Sachedina, Abdul Aziz Abdulhussein, The Just Ruler in Shiᶜte Islam: The Comprehensive Authority of the Jurist in Imamite Jurisprudence (New York: Oxford University Press, 1988), 48–49Google Scholar, 119–20.

5. Among those who reject the idea that the ahl al-ḥall wa al-ᶜaqd (i.e., the clergy), had inherited the substantial wilāyah of the Imams was the late Muhammad Husayn (ᶜAllamah) Tabatabaᵓi, whose monumental al-Mīzān fī tafsīr al-Qurᵓān is perhaps the most authoritative 20th-century Shiᶜi commentary on the Qurᵓan. The authority verse of the Qurᵓan is as follows: “O you who believe, obey Allah, obey the Prophet, and those in authority among you …” (4:59). In his commentary on this verse, Tabatabaᵓi categorically rejected the notion that “those in authority among you” could refer to the ulama. On this point see Arjomand, Said Amir, The Turban for the Crown (New York: Oxford University Press, 1988), 177–78Google Scholar. And, as Arjomand elsewhere puts it:

The vested interests of the Shiᶜite jurists of the sectarian period [i.e., pre-16-thcentury Shiᶜism] in the continued suppression of all mahdistic claims forced them to consider some of the specific functions of the Imam in abeyance (sāqiṭ) during the occultation. This was in part necessary to curb mahdism, as the possibility of direct representation of the Hidden Imam through a bāb or safīr was not categorically ruled out. It is therefore not surprising that very little attention was paid to the notion of niyābah (vicegerency) of the Hidden Imam. In the great legal compendiums of the late twelfth/early thirteenth century … we find references to “gerency [on behalf] of imamate [walāᵓ al-imāma]” or to the authority of him “for whom there is a commandment [ḥukm] regarding the right to vicegerency” only in highly specific contexts such as the rules for the collection of alms and their distribution, the disposal of the property of the heirless after their death, and the like. But there is no general discussion of “vicegerency” as the foundation of clerical authority.

See Arjotnand, The Shadow of God and the Hidden Imam (Chicago: University of Chicago Press, 1984), 141CrossRefGoogle Scholar (bracketed and parenthetical material in the original). See also the conclusion by Hossein Modarressi that those maintaining that the transmitters (jurists) of Shiᶜite ḥadīth during the 8th century were considered vice-gerents of the Imams “totally ignore much better documented and explicitly expressed Shicite views for those periods in which ‘nobody stands in the position of the Imam except an Imam.'” See Modarressi, Hossein, “The Just Ruler or the Guardian Jurist: An Attempt to Link Two Different Shiᶜite Concepts,” Journal of the American Oriental Society 111, no. 3 (July-September 1991): 552CrossRefGoogle Scholar.

6. Enayat, Hamid, “Iran: Khumayni's Concept of the ‘Guardianship of the Jurisconsult',” in Piscatori, James P., ed., Islam in the Political Process (New York: Cambridge University Press, 1983), 160Google Scholar.

7. This is the majority view among scholars writing in the West. Among its proponents, see Arjomand, Turban for the Crown, 177–88; Bayat, Mangol, “The Iranian Revolution of 1978–1979: Fundamentalist or Modern?” Middle East Journal 37', no. 1 (Winter 1983): 34–42Google Scholar; Hossein Modarressi, “The Just Ruler or the Guardian Jurist,” 549–62; Dabashi, Hamid, “Early Propagation of Wilāyat al-faqīh and Mulla Ahmad Naraqi,” in Nasr, Seyyed Hossein et al., eds., Expectations of the Millennium (Albany: State University of New York Press, 1989), 287–300Google Scholar.

8. In this sense, it goes back at least as far as Abu al-Qasim Najm al-Din “al-Muhaqqiq” al-Hilli (d. 1277), whose al-Mukhtaṣar al-nāfiᶜ contained a discussion of “walāᵓ al-imāmah,” containing a listing of the functions of the Imams that, in their strictly limited legal meanings, were said to devolve upon the jurists. Later, this view was promoted by ᶜAli b. ᶜAbd al-ᶜAli al-Karaki (“al-Muhaqqiq al-Thani,” d. 1533), who served in the position of Shaykh al-Islam in the Safavid period.

9. However, for the view that “Khomeini's assertion of the right of the faqīh to act as a full-fledged political ruler cannot be strictly regarded as an innovation in the history of Shiᶜi political theory,” see Enayat, “Iran,” 163. This cautious statement may be compared to the much bolder assertion by Sachedina that wilāyat al-faqīh “has its genesis in the early history of Imamite jurisprudence.” See Sachedina, Just Ruler, 6. This view has been criticized on grounds of insufficient evidence and unwarranted inference. See Modarressi, “Just Ruler or Guardian Jurist,” 552.

10. Sachedina, Just Ruler, 21–22.

11. Tafṣīl va taḥlīl, 31.

12. Bayat, Mangol, Iran's First Revolution: Shiᶜism and the Constitutional Revolution of 1905–1909 (New York: Oxford University Press, 1991), 257Google Scholar.

13. Arjomand, Said A., “The State and Khomeini's Islamic Order,” Iranian Studies 13, nos. 1–4 (1980): 150–51Google Scholar.

14. Some faint resonances of wilāyat al-faqīh are said to have been heard in Iraq “when a dispute over Parliament and the new State of Iraq broke out in 1922–3.” And, in the wake of the Shiᶜi clergy's leadership of the great Iraqi 1920 anti-British uprising, the program of the Union of Ulama, which was publicly declared on 13 November 1926 in Kazimayn, “called for the establishment … of control … by the mujtahids in their capacity as religious leaders of the people.” See Mallat, Chibli, The Renewal of Islamic Law: Muhammad Baqer as-Sadr, Najaf and the Shiᶜi International (New York: Cambridge University Press, 1993), 59CrossRefGoogle Scholar. However, these developments did not lead anywhere in terms of actual control of the Iraqi government by the Iraqi clerics.

15. Tafṣīl va taḥlīl, 31.

16. Moussavi, Ahmad Kazemi, “The Establishment of the Position of Marjaᶜiyyat-i Taqlīd in the Twelver Shiᶜi Community,” Iranian Studies 18, no. 1 (Winter 1985): 35–51CrossRefGoogle Scholar. See also Amanat, Abbas, “In Between the Madrasa and the Marketplace: The Designation of Clerical Leadership in Modern Shiᶜism,” in Said Arjomand, A., ed., Authority and Political Culture in Shiᶜism (Albany: State University of New York Press, 1988), 98–132Google Scholar.

17. The Oxford Encyclopaedia of the Modern Islamic World (New York: Oxford University Press, 1995), s.v. “Wilayat al-Faqih” (Roy Mottahedeh).

18. Arjomand, Shadow of God, 232.

19. Moussavi, “Establishment,” 40.

20. “Generally speaking, from the seventh to the twelfth century Hijri the concept of the ulama's wilāyah appeared as an occasional deputyship. In fact, it was a provisional formula for solving specific juristic problems” (Moussavi, “Establishment,” 41). Sachedina takes the maximalist view of the nature of the Imam's authority that was devolved upon the jurists and elaborates on the various subject areas of such authority (Just Ruler, 7).

21. Enayat, “Iran,” 161.

22. Ibid., 162. Enayat notes that Ansari viewed as absurd any attempt to make a one-to-one correspondance between the Imams’ entitlement to obedience in spiritual and religious matters and the entitlement of the fuqahāᵓ to the same.

23. Mallat believes that Khomeini does not unambiguously define wilāyah, so that one may take it that for him it lies somewhere between the notion of guidance (exercising oversight, supervision) and actual rule. “The weight of the argument tends toward some combination between the guidance concept of 1906 and a more decided attitude towards governmental matters as they are understood in the executivelegislative mold of contemporary democracies” ﹛Renewal, 61). In my view, Mallat is putting it this way because of Khomeini's awareness of the exigencies of the autonomy of the mujtahid in the Usuli tradition. However, Khomeini's praxis between 1979 and 1989 suggested a preference for outright rule over guidance/oversight/supervision. Mallat, however, cites Khomeini as follows: “If the sulṭāns [secular rulers] have some faith, they just need to issue their actions and decisions by way of the fuqahāᵓ, and in this case the true rulers are the fuqahāᵓ, and the sulṭāns become mere agents for them.” He then goes on to comment on this statement, maintaining that it is true that it gives “the final word” to the fuqahāᵓ, but this right “does not alter the reality of an effective separation of powers” (p. 61). Finally, he claims: “The final word, certainly, is the ulama's, but the substantial content of their sway remains undefined.” Since Mallat does not elaborate on this, it is not clear how separation of powers retains its integrity in the face of sultans issuing actions and decisions through the jurists. Does this not imply, after all, that the sultans are bending to the will of these jurists? And if the details about the sway of the jurists remain undefined, that still does not suggest anything less than that Khomeini had a very robust notion of the “guidance” function.

24. For example, see Eliash, Joseph, “Misconceptions Concerning the Juridical Status of the Iranian Ulama,” International Journal of Middle East Studies 10, no. 1 (February 1979): 9–25CrossRefGoogle Scholar.

25. Khomeini, Ruhullah, Ḥukūmat-i Islāmī, 3rd ed. (Najaf: n.p., 1971), 121Google Scholar.

26. Ibid., 112.

27. Ibid., 121 (emphasis added). In his Kitāb al-bayᵓ, published in 1970, Khomeini reverts to this theme and notes that the Imam warned against going to the salātīn or their judges for a ruling. Khomeini stressed that the caliphs in those days studiously refrained from interfering in cases that were the jurisdiction of judges, and the judges refrained from interfering in cases that were the jurisdiction of the rulers. Thus, the Imam is clearly making a distinction between jurisdictions of rulers and those of judges, and in his operative phrase, “laqad jaᶜaltuhū ᶜalaykum ḥākiman,” he is referring to a person whom he has appointed to be both ruler (walī) and judge (qāḌī), as the need may arise. After all, Khomeini notes, the Imam is not saying “laqad jaᶜaltuhū ᶜalaykum qāḍīyan,” which he would have done if he meant to restrict the incumbent's duties to purely judicial and legal authority. Khomeini also stresses that the Imam was not appointing a specific person to a particular assignment at a particular time and a particular place. Rather, he was making a general appointment that was meant to transcend his own Imamate and apply as well in the period of the ghaybah, or occultation (Khomeini, Kitāb al-bayᶜ [1970], vol. 2 [Qumm: Matbaᶜah-yi Ismaᶜiliyan, 1409/1988], 478–82Google Scholar).

28. This remarkable statement—agar bā ham ijtimāᶜ kunand, mītavānand ḥukūmat-i ᶜadl-i ᶜumūmī dar ᶜālam tashkīl dahand—flies in the face of the classical view that universal justice in the world can only be established by the Imam. For Khomeini's position see Ḥukūmat-i Islāmī, 63.

29. Ibid. Apparently, in the fascicle version Khomeini did not mandate that all would have to obey a single faqīh, presumably because the Usuli position was that each mujtahid was entitled to reach his own conclusions on the basis of his own independent judgment. See Mottahedeh, “Wilayat al-Faqih,” 321. Strangely enough, in his work Taḥrīr al-wasīlah, 2nd ed., vol. 2 (Beirut, 1985), 366–68, he describes the qualifications of the marjiᶜ al-taqlīd in a way that suggests that he should be divorced from social affairs. In a section on ijtihād he says that the candidate for marjiᶜ al-taqlīd must be a scholar (ᶜālim), a mujtahid, just, pious, and “uninvolved in worldly affairs” (ghayr mukibb ᶜalā al-dunyā) (cited in Mallat, Renewal, 214). If, indeed, the marjiᶜ al-taqlīd is to be aloof from secular issues, then how can he command the political authority that Khomeini deemed necessary for him to wield so that, as he said in 1970, “everyone would have to obey him“?

30. Khomeini, Ḥukūmat-i Islāmī, 64–65.

31. Among such classic texts are ᶜAllamah al-Hilli's Tadhkirat al-fuqahāᵓ the section called Kitāb al-nikāḤ, where he clearly specifies that the wilāyah of jurists is not to be considered ᶜāmmah. See Sachedina, Just Ruler, 175; Ansari, Kitāb al-makāsib.

32. Khomeini, Ḥukūmat-i Islāmī, 65.

33. See his al-Khumaynī wa wilāyat al-faqīh (Beirut: Dar al-ᶜIlm li al-Malayin, 1979).

34. Khomeini, Ḥukūmat-i Islāmī, 66.

35. Calder, “Accommodation and Revolution,” 9–10, 14. If no jurists could be found to establish such a government, Khomeini maintains, the task would have to wait until the time that such individuals could be identified.

36. Muhammad Jawad al-Maghniyah, al-Khumaynī wa al-dawlah al-Islāmīyah (Beirut: Dar al-ᶜIlm li al-Malayin, 1979), 6–7. Indeed, for Maghniyah politics is the “nerve” of life. He who tries to separate politics from Islam is trying to separate it from its nature. He thereupon cites Qurᵓan 8:24: “O believers, respond to the call of Allah and His Prophet when He calls you to what will give you life. Remember that Allah intervenes between man and his heart and that you will be gathered before Him.”

37. Ibid., 8. Presumably, by “state expenditures” Maghniyah has in mind the running of the bureaucracy, paying salaries to state employees, capital expenditures on offices and buildings, and so on—in short, matters not directly connected to the welfare of the people. However, by not clarifying his intention, he leaves himself open to the rebuttal that “state expenditures” can in fact advance the well-being of the poor and needy.

38. Ibid., 60. Maghniyah boldly asserts that once an Islamic state is established, it will be the Muslim people, not the faqīh, who will have the power to [s]elect its officials. The reason for this is that the faqīh' & wilāyah is more narrowly circumscribed than the Imam's (p. 65).

39. Khomeini puts it this way: “It is certain that ‘the fuqahāᵓ rule over the sultans.’ If the sultans submit to Islam, they must yield to the fuqahāᵓ and ask the fuqahāᵓ about the laws and ordinances of Islam and the implementation of those laws and ordinances. In that case, the real rulers are the fuqahāᵓ themselves. Therefore, the rule must officially accrue to the fuqahāᵓ, and not to those who, by virtue of their ignorance of the law, have to obey the fuqahāᵓ. … The distinctive qualities of knowledge of the law and justice may be found among a countless number of the fuqahāᵓ of our age. If they unite, they can establish a government of universal justice on earth… . Once this is affirmed, the fuqahāᵓ collectively or individually must establish an Islamic government in order to implement the Ḥudūd punishments and preserve the territory and Islamic system… . I have read a tradition in relation to Imam Rida that holds that if there is no honest, protective, and reliable Imam, the community would be extinguished … and in this tradition the Imam says that the fuqahāᵓ are the trustees of the prophets. One concludes from this that the fuqahāᵓ must be the leaders of the community in order to prevent the suspension of the ordinances and the extinction of Islam” (Khomeini, Ḥukūmat-i Islāmī, 60, 63, 67, 95). After seizing power, however, Khomeini routinely referred to the role of the people in determining the affairs of the Muslims.

40. Maghniyah, al-Khumaynī, 60.

41. Ibid., 70.

42. Ibid., 61–62. On the all-important matter of levying taxes, Maghniyah dissents from Khomeini's notion that in Islamic law taxes are not earmarked to meet the needs of the poor. According to Khomeini, the law indicates that taxes were legislated to meet the expenses of a large, sovereign state. In attacking this view, Maghniyah notes that the words, “state” and “government” (al-dawlah, al-Ḥukūmah) have not appeared in the texts on khums and zakāt. Nor are they to be found in the books of jurisprudence more generally speaking. Had they been so, says Maghniyah, then Khomeini, with his penchant for a close reading of the texts, would have invoked them. On the contrary, says Maghniyah, the zakāt chapter in Wasāᵓil al-shīᵓah, a seminal work on Shiᶜi law by al-Hurr al-ᶜAmili (d. 1693), says of the Imam: “As for the ṣadaqāt payments, they are for the people [aqwām]. No share of them is for those who are ruling [fī al-imārah].” Indeed, to Maghniyah's way of thinking, Qurᵓanic verses (70:25, 9:60) clearly show that taxes are to be spent on the poor. In interpreting those verses, Imam Jaᶜfar al-Sadiq (d. 765) is said to have commented: “Allah has made the surplus wealth of the rich incumbent for the poor” (ibid., 99–100).

43. Ibid., 64 (that is, there is evidence to confirm the Imam's precedence over the people).

44. Cited in ibid., 62–63.

45. Ibid., 63–64.

46. Moussavi, Ahmad K., “A New Interpretation of the Theory of Vilāyat-i Faqīh,” Middle Eastern Studies 28, no. 1 (January 1992): 100–107CrossRefGoogle Scholar.

47. ᶜIzzatallah Salihi Najafabadi, Vilāyat-i faqīh: Ḥukūmat-i ṣāliḤān (Tehran: Muᵓassasah-yi Khadamat-i Farhang-i Rasa, 1363 Sh./1984), 45–46Google Scholar.

48. Normally, in the science of rhetoric these terms are used to refer to types of sentences. Thus, inshāᵓī refers to imperative, interrogative, and exclamatory sentences, whereas khabarī refers to declarative sentences only. In this discussion, however, Najafabadi uses the terms in the sense of “originative/creative” and “notificatory/indicative” aspects. Thus, he concedes that wilāyat al-faqīh, as classically understood, has had a restrictive meaning; this implies that the classical understanding has erred by ignoring the original, inherent meaning by which one may construe wilāyat al-faqīh in the robust way Khomeini wants to do.

49. Ibid., 22–23. It is revealing that the word he uses for “principles” in the cited passage is uāūl, a term fraught with significance in Islamic discourse, as in uṣūl al-dīn (“the foundations of the faith“). The implication is that wilāyat al-faqīh is one of the linchpin concepts of Islam akin to the unity of God, belief in the prophecy of Muhammad and the Day of Judgment, and—for Shiᶜites—the doctrine of the Imamate.

50. This is a clear response to the politics of the modern age and has virtually nothing to do with the historical understanding of the functions of the faqīh by jurists over the centuries. That understanding, of course, is that ordinary Muslims cannot be expected to know the law and therefore require the expertise of those who do. Najafabadi's revisionist interpretation is precisely what Zubaida has in mind when he insists that the discourse of Islamists in the late 20th century is heavily influenced by non-Islamic, and, ironically, specifically Western traditions. See Zubaida, Sami, Islam, the People, and the State: Essays on Political Ideas and Movements in the Middle East, 2nd ed. (London: I. B. Tauris, 1993), esp. 1–63.Google Scholar

51. Najafabadi, Vilāyat-i faqīh, 31–32.

52. Ibid., 32.

53. Ibid., 34–35.

54. Ibid., 36.

55. Ibid., 38. He bases this assertion not on the Qurᵓan, in which he could not find any warrant for such a view, but on the hagiography of Imam ᶜAli entitled Nahj al-balāghah.

56. Ibid., 36–37.

57. Ibid., 46–47. To be sure, he does cite Khomeini's ceaseless statements about how the regime of the Islamic Republic of Iran is based on the people's desires. However, this central role for the people is missing in Khomeini's analysis in Ḥukūmat-i Islāmī.

58. Ibid., 50

59. Ibid., 51. He puts it as follows: “Whatever power there is emanates from the people” (har chah nīrū hast az mardum ast).

60. He uses the expressions ᶜaqd va qarārdād-i ijtimāᶜī and mīthāq-i ijtimāᵓī and offers “Islamic” grounds for the social contract. For example, he cites Qurᵓan 5:1 (“O ye who believe, fulfill your contracts“), blithely ignoring the fact that this verse is devoid of the connotation of members of a community making a contract with “society” and ceding their rights to that entity, which then becomes the trustee of those in the classic 17th- and 18th-century theories of social contract. See Ibid., 106–107, 123— 25.

61. Ibid., 52.

62. Ibid., 55–56.

63. Ibid., 58.

64. Ibid., 61–64.

65. Ibid., 107–108.

66. Ibid., 68. He cites Imam ᶜAli from Nahj al-balāghah as follows: “By virtue of the rule [wilāyat al-amr], Allah has given me rights over you and reciprocally given you rights over me; and among social rights, the greatest is that which the ruler has over the people, and which the people have over the ruler” (p. 70).

67. Ibid., 72.

68. The term raᵓy-i mardum appears repeatedly throughout this book, such as pp. 72–77.

69. Ibid., 77.

70. Ibid., 109–112.

71. Ibid., 115. No clearer example could be found of a jurist living in the late 20th century and reading into the Qurᵓan political practices that have their provenance in the West. As though aware of the stretch he is asking his readers to make here, Najafabadi tells us that we must juxtapose 39:18 and 2:255 (i.e., 2:256): “There is no compulsion in matters of religion” (lā ikrāh fī al-dīn). It is then that 39:18 becomes a warrant for arguing that the principle of popular election of the leader is a Qurᵓanic principle. Why should this be so? Because if we read the two verses together, we will see that Allah is not imposing His divinity, His prophet, or the Imams upon the people. Rather, He is calling upon the people to think correctly about their God, the Prophet, and the Imams, and to choose them. If this be so, Najafabadi boldly maintains, then Article 5 of the 1979 constitution, “which is about the people's election of the leader and faqīh, and which has made the majority vote of the people its foundation, is from this very spirit of the Qurᵓan and Islam” (see p. 116).

72. Ibid., 137–38. Here is how Najafabadi puts it: The Prophet's Ḥukūmah was popular (mardumī). The movement led by the Prophet was a revolutionary one that began with one individual and attracted others, growing until a government was formed, and the people “on their own” ﹛bah ṭawr-i khud bah khudī) happily and willingly accepted his leadership. Najafabadi conveniently ignores the fact that, rather than being a process of post-facto ratification of a candidate presenting himself, elections normally entail campaigning, nominations and then active choice from among successful candidates.

73. Ibid., 140.

74. Ibid., 150–52, 153–54, 154–73.

75. Ibid., 173–75.

76. Najafabadi focuses upon the fact that Ansari, in his Makāsib, cited 10 Ḥadīths, including the famous “maqbūlah ᶜUmar ibn Ḥanzalah,” and concluded that these ḥadīths do not prove that the jurists have been empowered by the Prophet or Imams with full governmental authority. Ansari had written that if the faqīh asks for khums and zakāt from the people, they do not have to give it to him. Najafabadi is not deterred by these words. He maintains that Ansari could say such a thing only because the ulama in that period lived at a time when government was in the hands of despots, the clergy restricted themselves to studies of fiqh, and they held no governmental duties nor felt they needed to have any. He says Ansari never posed the question of wilāyat al-faqīh in its inshāᵓī—or originative—form. If he had, he would certainly have accepted that interpretation, because it is so clear that a single faqīh would be chosen from among all jurists as the most capable leader. Ansari, we are assured, would have endorsed the inshāᵓī version because he would have opposed any line of argument that suggested equivalency among all jurists as a sure recipe for conflicting opinions and, ultimately, chaos (ibid., 198–99, 214).

77. Ibid., 180.

78. Ibid., 199–201. It is interesting in this connection that Najafabadi takes to task Shaykh Fadlullah Nuri (d. 1909)—one of the favorite jurists of the Islamic Republic— for having condemned the idea of popular sovereignty, since only the Imam was entitled to represent the people in Nuri's opinion (ibid., 202–203). The example of Nuri's opposition is troublesome because advocates of Khomeini's doctrine of wilāyat al-faqīh routinely describe any mujtahids who hold views that contravene their own as “simple-minded,” “naive,” or in thrall to imperialism. However, they could hardly depict their beloved Nuri in these terms.

79. Ibid., 141, 269–73.

80. Ibid., 228–29.

81. Najafabadi is correctly citing Ansari here. For Ansari, ūlū al-amr in its “ordinary language sense” does refer to those regarded to have discretionary control over the property and lives of the Muslims. But this is not a warrant for jurists being entitled to executive rule of a state in the period when the Imam is in occultation. In fact, “Ansari continued in Majlisi's tradition insofar as his attitude to rulers was concerned. His political quiescence is reflected in his treatment of the functions of Imamite jurists in the Imamite state, which concedes no political authority to them in their position as the deputies of the Imam.” See Sachedina, Just Ruler, 23.

82. “Reason is the mother of all proofs,” says Muntaziri. See Husayn ᶜAli Muntaziri, Dirāsat fī wilāyat al-faqīh wa fiqh al-dawlah al-Islāmīyah, vol. 1 (Qumm: Dar al-Fikr, 1408/1988), 493Google Scholar.

83. Included are the tradition of ᶜUmar b. Hanzalah, the tradition of Abu Khadijah, Qurᵓan 4:58–60, the Prophet's tradition of “Bless My Successors,” the tradition of the Sixth Imam (“The Ulama Are the Legatees of the Prophets“), the tradition of the Seventh Imam (“The Jurists Are the Fortresses of Islam“), the tradition of the Sixth Imam (“The Jurists Are the Trustees of the Prophets“), the tradition of the Hidden Imam (“In Matters That May Transpire Have Recourse to the Relators of Our Tradi tions“), the tradition of Imam ᶜAli (“The Ulama Are the Rulers Over the People“). Non-traditional sources that Muntaziri cites include Khomeini's Kitāb al-bayᶜ, published originally in 1970, and Burujirdi's lectures on the Friday prayer, originally published in 1952.

84. Ibid., 437. Despite chiding Ansari for this “limited” view of wilāyat al-faqīh, Muntaziri echoes Najafabadi's claim that by ūlū al-amr Ansari meant those in charge of governmental matters—a very broad view indeed (ibid., 66).

85. Ibid., 493–511.

86. Ibid., 77.

87. Ibid.

88. Ibid., 78.

89. Among these are ᶜAllamah al-Mutahhar al-Hilli (d. 1325), Muhaqqiq al-Thani al-Karaki (d. 1533), and Mulla Ahmad al-Naraqi (d. 1829). Citing Hilli: “It is our right to require that the Imam's appointment of us is general for all times.” And al-Karaki: “Our adherents have agreed that the just, trustworthy jurist … is a deputy of the Imams … in the period of the occultation in all matters of deputyship, with the possible exception of capital and exemplary punishments.” And Naraqi: “In totality that which the just faqīh has is his taking over of administration, and he has the wilāyah.” One unusual source that Muntaziri cites is Muhammad Husayn Burujirdi (d. 1962). Burujirdi was known for his political quietism, but Muntaziri manages to find the following citation from a compilation of Burujurdi's lectures: “Muslim specialists and the masses have agreed that there must be in Islam a political leader to arrange their affairs. Indeed, this is one of the necessities of Islam, even if disagreement on his qualification and attributes exists. He has his appointment from the Prophet or by general election” (see ibid., 85–86). Note that in the Burujirdi citation, the “political leader” is referred to as a “raᵓīs wa zaᶜīm“; that is, Burujirdi does not specify he must be a faqīh. Also, the Karaki terminology, “all matters of deputyship,” did not mean executive governmental power, but what the jurists had long considered to be the prerogatives of the general agents (i.e., the fuqahāᵓ), namely, to clarify the holy law and to superintend the affairs of those incapable of taking their affairs into their own hands.

90. Ibid., 205–206.

91. Ibid., 206–207.

92. Ibid., 208.

93. Ibid., 222.

94. Ibid., 222–23.

95. This is another way of saying that if the jurists had lived under different circumstances, they would have interpreted the traditions differently—an obviously specious argument.

96. Ibid., 493–94.

97. Ibid., 494. Muntaziri does not explore exactly how these verses show that Allah wished for human beings to elect their leaders.

98. Ibid., 496–97.

99. Ibid., 497.

100. Ibid., 497–99. Earlier, Muntaziri explicitly says that any walī al-faqīh who is shown to have lost the qualifications on the basis of which he had been elected may be dismissed by the people who elected him (p. 416).

101. Ibid., 408.

102. Ibid., 409.

103. Ibid., 410–14.

104. Ibid., 415.

105. Shari'atmadari held that articles 5 and 110, pertaining to the power of the faqīh, and articles 6 and 56, relating to national sovereignty, were contradictory. More worrisome to the supporters of Khomeini was Sharicatmadari's assessment that the principle of wilāyat al-faqīh was “doubtful” (mardūd). It may be that, extraordinarily, if the very existence of the Muslims is in danger, a need might arise for a walī al-faqīh to lead a revolution. But as soon as a parliament, executive, judiciary and bureaucracy are established, any role for a walī al-faqīh lapses. See Sharicatmadari's remarks in the newspaper Khalq-i Musalmān, 22 Mihr 1358/14 October 1979. For criticisms by other mujtahids, see Akhavi, Shahrough, “The Ideology and Praxis of Shicism in the Iranian Revolution,” Comparative Studies in Society and History 25, no. 1 (April 1983): 211–17CrossRefGoogle Scholar.

106. The Council of Guardians is a judicial body, half of its members appointed by the faqīh, that is tasked with ensuring that enactments of the parliament conform to the constitution. This powerful body has routinely declared unconstitutional parliamentary laws permitting the government to seize property that had been acquired legitimately.

107. Tafṣīl va taḤlīl, 9.

108. Mallat, Renewal, 90.

109. Jumhūrī-yi Islāmī, 21 Azar 1366/12 December 1987.

110. Tafṣīl va taḤlīl, 20.

111. Ibid., 21.

112. Ibid.

113. The text of the fatwā has been printed in various places, including Tafṣīl va taḥlīl, 7, 14, 22; Mallat, Renewal, 105.

114. Tafṣīl va taḥlīl, 24. The objective of this Council was to break a recurring deadlock between the Guardian Council and the parliament. The membership of this 14-person body included six representatives of the Guardian Council, who were outnumbered by the other eight: the president, the speaker of Parliament, the chief justice of the Supreme Court, a special representative of Khomeini's office, the prime minister, the prosecutor-general, Khomeini's son, and the relevant cabinet minister representing the policy area under dispute. If the members agreed, outside experts might, on an ad hoc basis, be seconded to the Council to lend their expertise to the discussions. Mallat contends that Khomeini was very reluctant to create this new body, basing his conclusions on the following: Khomeini's fatwā did not refer to this body by any particular name; he referred to the members of this Council by name, rather than by position, indicating that he believed it might be a temporary phenomenon; in appointing his own son to be the Council's rapporteur (but presumably with voting powers), Khomeini again emphasized the personalization, as opposed to the institutionalization, of this new organ (Mallat, Renewal, 105).

115. Ibid., 89–90.

116. Jurists in Iran could not openly express the view that Khomeini had gone too far in his statement of 8 January 1988. However, on the basis of sentiments expressed during the 1979 debates in the Council of Experts over the powers of the faqīh, one might assume that “sidelined” mujtahids like Nasir Makarim Shirazi might hold to this view. On the other hand, though also marginalized, Muntaziri could probably endorse the maximalist position in view of his insistence on the electoral basis for the faqīh's authority. Mujtahids abroad, such as Maghniyah, would likely not support it, however, given his insistence that no taxes beyond the traditional ones of khums, zakāt, jizyah and kharāj could be levied on populations in the period of the occultation.

117. Khomeini himself intervened to recommend the abolition of the requirement that the faqīh be a marjiᶜ al-taqlīd with his letter dated 9 May 1989, presumably sent to the special commission for amending the constitution. See Encyclopaedia Iranica (Costa Mesa, Calif.: Mazda, 1992- ), s.v. “Constitution of the Islamic Republic of Iran” (Said Amir Arjomand).