The Dominion of the Wali al-Faqih

By: Dr. Ahmed Vaezi
Cambridge University, UK
When considering that Wilayat al-Faqih represents the keystone of Imami political doctrine in the Era of Greater Occultation, it is essential that we assess the scope and domain of its authority. For our present subject, we must take into account the power of other religious authorities amongst the Imamis; the marja’ai. Does the Wali al-Faqih have authority (Wilayat) only over those who accept him as their marja’a, or those who imitate marja’ai that support the idea of Wilayat al-amma?
Aside from the relationship between the Wali al-Faqih as a political leader and other fuqaha as marja’ai, it is also important to gauge the authority of the Wali al-Faqih regarding the Shari’ah. Is he only able to issue orders within the framework of the Islamic legal system, or is he fully authorized to make decisions even if they contradict the Shari’ah? In other words, is his license as a ruler defined by the Shari’ah, or is his authority above the Shari’ah and therefore absolute?
We can structure our analysis around two significant aspects; the people’s respect for his orders, and his respect for the Islamic legal system (Shari’ah). However, before proceeding with this discussion, we should review two important points.
Firstly, unlike Imamate, which is considered as a fundamental aspect of belief (aqueeda) in Shi’ism, Wilayat al-Faqih is a juridical (fiqh) subject matter. What distinguishes a fiqhi discussion from a theological (kalam) one, is that while the latter concerns issues of belief (disagreement upon which would render an individuals belief imperfect), the former is legal and thus subject to divergence of opinion even amongst the scholars of a particular Islamic sect (as disagreement in these issues does not invalidate belief). Hence, there can be disagreement on the universal authority of the jurist, as a juridical (fiqh) discussion and such disputes are not concerned with faith (iman).
Secondly, a necessary distinction must be made between a fatwa (religious decree) and hukm (order). As previously stated, a decree, deduced from Islamic sources and issued by a qualified faqih – fatwa – is valid and reliable for those who refer to him as their marja’a taqleed (religious authority), thus it is binding upon them to obey his fatwa. However, those who refer to other scholars as religious authorities are not obliged to observe this ruling. But an order (hukm) issued by the Wali al-Faqih is binding upon all Muslims, not merely his followers, regardless of how far his political authority might reach. Therefore, a command issued by a jurist as Wali al-qada in the administration of justice is obligatory for everyone, even other fuqaha, because the just and capable jurist is appointed as hakim (Wali). This opinion is supported by a tradition from Imam as-Sadiq (pbuh), in which Umar ibn Hanzala transmits that the Imam prohibited his followers (Shi’a) to recourse to a tyrannical or illegitimate authority (taghut) to resolve their affairs. Instead they are obliged to refer to one who relates the traditions of the Ahlul-Bayt and knows what is lawful and prohibited (i.e. a faqih). Imam as-Sadiq (pbuh) said:
I have appointed him a hakim over you. If such a person orders (judges) according to our ruling and the person concerned does not accept it, then he has shown contempt for the ruling of God and rejects us; and he who rejects us, actually rejects Allah and such a person is close to association [Shirk] with Allah[57].
In this tradition, Imam as-Sadiq (pbuh) addresses the role of a just faqih (hakim) who has been entrusted with authority by the infallible Imam. According to this hadith, the people are not allowed to recourse to an illegitimate or oppressive authority for the resolution of their problems. Instead they are required to refer to the Wali (hakim) and obey his decisions, regardless of whether or not he is their marja’a taqleed.
Such as solution, however, hardly seems convincing for those who do not accept Wilayat al-amma. One might argue that the Wali al-Faqih issues commands (hukm) based upon his own opinion (fatwa) that the authority of the jurist is universal (Wilayat al-amma), while according to the view of another marja’a the scope of a jurists authority is limited and he is not designated to undertake political affairs. According to this view, the tradition of Umar ibn Hanzala and others do not include these kinds of orders.
However, this reasoning presents obvious problems that extend far beyond the governmental orders (hukm) of a jurist. For instance, when administering justice (Wilayat al- qada) a faqih issues an order according to his own religious decree (fatwa), however there is no excuse for people to disregard or disobey his command on the grounds that he is not their marja’a. This is because the authority to judge (al- qada) and the authority to issue decrees (al-ifta) are independent of one another, thus the role of the judge cannot be infringed by the edict of a marja’a (as the marja’a is not the judge of that legal case). Furthermore, although the opponents of Wilayat al-amma maintain that the designation of the faqih as the Imam’s deputy does not extend to political authority (Wilayat al-siyasiyya), this surely cannot imply that if the people elect a just and capable faqih as their leader, instead of an unjust person, that his leadership is some how illegitimate and people are free to disobey. We will return to this point in the next chapter when examining the authority of a faqih endorsed by ‘hisbah’.
We noted earlier that the debate surrounding the authority of the Wali al-Faqih has two significant aspects. The second of these – the relationship between the faqih’s commands and Shari’ah – is a very new discussion in Imami political jurisprudence, whereas the first aspect has been discussed by many fuqaha. Imam Khomeini was perhaps the first Imami faqih who explicitly and publicly discussed the connection between governmental orders (ahkam al-hukmati) and Islamic laws (ahkam al-shari’). He firmly advocated the absolute authority of the faqih (Wilayat al-mutlaqa) and it is essential that we briefly clarify the definition of this term to avoid any misconceptions.

Al-Wilayat al-Mutlaqa
When one first encounters the idea that a jurist has an unlimited and absolute scope of authority (Wilayat al- mutlaqa) in issuing governmental orders, it is easy to dismiss the model of political regime as “absolutism”, which is defined in the Oxford political dictionary as follows:
Originally (1733) a theological concept referring to God's total power to decide about salvation. Extended to politics indicating a regime in which the ruler might legitimately decide anything. Usually applied to monarchical regimes of the early modern period[58].
This misinterpretation often leads to the false assumption that there are no controls, restrictions or limitations upon the powers of the faqih; his authority is unquestionable and he can exert himself without regard to the demands of the Shari’ah or the interests of his people. He has no duty to respect the various kinds criteria and standards for his governance.
This is similar to a dictatorial model of government, which is an absolute rule unrestricted by law, constitution or other political, religious or moral factors within the society and state. Clearly this interpretation of absolute authority is not correct even when considering the Prophet (pbuh) and the Infallible Imams. A faqih as Wali must meet certain criteria, one of which is justice.
The above conception of Wilayat al-mutlaqa obviously contradicts the idea of justice and such a person has no legitimate authority (Wilayat) over believers. The precise and correct understanding of ‘Wilayat al-mutlaqa’ has a close relationship to discussion about the nature and various kinds of ‘command’ (hukm) in Imami Jurisprudence, especially the faqih’s injunction as Wali (al-hukm al-hukmati) and its position among commands of Shari’ah.

i) Divine Laws (Al-Hukm as-Shari’)
This refers to a set of rules and commands legislated by God and expressed to people through the Prophet Muhammad and his successors. Hukm al-Shari’ is usually divided by Muslim Jurists into two divisions. The first part is called ‘al- ahkam al-taklifi’ which is the laws of duty and in turn divides into five divisions (obligation, prohibition, desirability, undesirability and permissibility or ‘mubah’). The second part is called ‘al-ahkam al-waz'i’ which establishes specific relationships and situations (waz') that are subject to particular divine laws. For instance, marriage, ownership, purity and uncleanness are all situations that the Islamic legal system endorses and defines in particular matters and circumstances - usually al-hukm al-waz'i is subject to particular laws of duty. Divine laws also are called the first order laws (al-ahkam al-aWaliya) because deeds and things by themselves - with no regard to temporal and unexpected accidents - are subjects to these laws and legislation of Islam.

ii) The Judge's Command (Al-Hukm al-Qadi)
Even though the legal decision of Judge (faqih) is issued with consideration of the Shari’ah and decrees of Islam, it is not a component of the Shari’ah. The judge’s role is merely the execution (tanfidh) and application of Islamic law to juridical cases. In administration of justice, the faqih as Judge does not deduce Islamic laws rather he attempts to apply the most appropriate laws to the situation.

iii) Governmental Orders (Al-Hukm al-Wilai)
Supporters of universal authority (Wilayat al-amma) do not restrict the orders (hukm) of the faqih to merely the administration of justice. As a hakim, the jurist may issue orders and it is incumbent upon all Muslims, even other fuqaha, to obey them. These include his edicts concerning the beginning of Ramadhan or the application of legal penalties (hudud). The best examples of orders that fall into this category are the governmental commands that the faqih may issue as the political leader of a society. The Wali al- faqih may issue orders regarding situations that he recognizes as affecting the interests of Islam, Muslims and Islamic laws and values. A situation may arise in which the Wali al-Faqih can issue an order based on the interest (maslahat) of the people, even though in principal the action would not otherwise be compulsory in Shari’ah.
Two crucial questions arise regarding these orders. The first concerns the nature of the order; whether the governmental command is categorized as the ‘first order’ of the Shari’ah, or as the ‘second order’ (al-akham as-sanavy). The second question concerns the scope of such orders. A faqih may issue an obligatory or prohibitive order regarding matters that are considered permissible (mubah) and for which there is no prior obligation (for doing or not doing it) in Islamic law. However, a dispute arises about whether or not the faqih may issue orders that disregard the commands of the Shari’ah. Since the answer to the latter of these questions emerges from the former, it is necessary to explain what we mean by ‘second order’ commands (akham as-sanavy).

iv) Al-Hukm al-Awaly and al-Hukm al-Sanavy
The actions that we commit according to our free will are subject to one of the following categories in Shari’ah, namely obligation (wajib), prohibition (haraam), desirability (mustahab), undesirability (makruh) and simple permissibility (mubah). These ‘first order’ laws (al-ahkam al-awaly) are determined by the law giver (hakim) upon considering the essence and natural status of deeds and things. However, in exceptional situations and under circumstances in which people should not or cannot respect previous legislations, new rulings must be issued. These temporal laws are legislated according to the demands made by exceptional situations, and are called laws of 'the second order'(al-ahkam al sanavy).
They are secondary and temporal because people must revert to obeying the first order laws as soon as the exceptional circumstances return to normal. For instance, according to Shari’ah it is not permissible for Muslims to eat “carrion” (dead animals) or the meat of animals not ritually slaughtered. It is a first order command, but in a dire situation when a person has nothing to eat at all, God permits him or her to eat such meat, this permission is a second order law. The Qur’an says:
He has only forbidden you what dies of itself, and blood, and flesh of swine, and that over which any other (name) other than (that of) Allah has been invoked, but whoever is driven to necessity, not desiring, nor exceeding the limit, no sin shall be upon him. [Chapter 2, Verse 173]
Fuqaha usually cite ‘necessity’ (ezterar), damage (zarar), distress and constriction (usr wa haraj), disorder of the Muslim's system (ekhtelal al-nidham) and compulsion (ekrah) as the major exceptional topics that demand and require second order laws, as reasons for reverting to laws of ‘the second order’. The prevailing conception amongst Imami Jurists emphasizes that the governmental orders should be issued by the faqih only in one of the aforementioned exceptional situations because al-hukm al- hukmati is but a second order command.
When we consider this opinion, the answer to the second question – which is the relationship between governmental order and Shari’ah - is very clear. In a normal situation, the faqih has no right to issue orders in opposition to obligatory (either haraam or wajib) first order laws, even if the interests (maslahat) of the Muslims demands thus. In other words, interest as such cannot justify governmental orders when they are on the contrary with Islamic obligatory laws.
However, situations in which the interest (maslahat) becomes so serious that ignorance of it could cause significant damage, distress and constriction or disorder, would allow the Wali al-Faqih to issue these orders.
Ayatollah Khomeini, in a revolutionary view, stated that although the implementation of Shari’ah is very important, it is not the ultimate goal. Islamic laws (Shari’ah) serve as a means to achieve the primary aim embodied in the protection of Islam and the extension of Justice. For him the Islamic State is not merely one part of Islam amongst others, but it is Islam itself. Consequently the significance of Islamic laws is overshadowed by the significance of protecting the Islamic system and the interest (maslahat) of Islam. He expressed the view during his lectures in Iraq - the seminary of Najaf - years before the Islamic Revolution in Iran.
After the Islamic Revolution in Iran he explored this view more explicitly. In his famous letter to Ayatollah Khamenei (the current Wali al-Faqih), he insists that the authority of the Prophet and Imams to govern is not only a first order divine law but also it has priority over others such as praying, fasting, Hajj and so on. He writes:
The government or the absolute guardianship (al- Wilayat al-mutlaqa) that is delegated to the noblest messenger of Allah is the most important divine laws and has priority over all other ordinances of the law. If the powers of the government restricted to the framework of ordinances of the law then the delegation of the authority to the Prophet would be a senseless phenomenon. I have to say that government is a branch of the Prophet's absolute Wilayat and one of the primary (first order) rules of Islam that has priority over all ordinances of the law even praying, fasting and Hajj...The Islamic State could prevent implementation of everything - devotional and non- devotional - that so long as it seems against Islam's interests[59].
Unlike conditional authority (Wilayat al-muqayada) that restricts the right of the faqih for issuing governmental orders solely in permissibility cases (mubahat), Wilayat al- mutlaqa, by definition, is a juridical view concerning the dominion of the just faqih to issue governmental orders even if it is in opposition with some obligatory Islamic laws.
As has become clear from the current discussion, the meaning of Wilayat al-mutlaqa is totally different from ‘absolutism’ and the establishment of a totalitarian and dictatorial government. Some qualifications and conditions are essential for the Wali al-Faqih such as justice, piety and the necessary socio-political perspicacity. So, if he fails to meet one of them, he will be dismissed. In the constitution of Islamic Republic of Iran a group of experts elected by people supervise and control the leader. This constitution in article 111 says:
Whenever the leader becomes incapable of fulfiling his constitutional duties, or loses one of the qualifications mentioned in Article 5 and 109, or it becomes known that he did not possess some of the qualifications initially, he will be dismissed. The authority of determination in this matter with the experts specified in Article 108.
As I indicated before, in Imami Political Jurisprudence ‘Wilayat al-mutlaqa’ is a new term. Imami fuqaha usually use other terms such as ‘Wilayat al-amma’ and ‘neyabat al- Amma’ to refer to the authority of faqih. Imam Khomeini applied the term publicly, then in 1990 it was enshrined in the constitution of Islamic Iran. Article 57 says:
The power of government in the Islamic Republic are vested in the legislature, the judiciary, and the executive powers, functioning under the supervision of the absolute religious leader and the leadership of the ummah.

Wilayat al-Faqih and other Ideas of Guardianship
Perhaps Plato was the first political theorist who presented a comprehensive guardianship model of government. In the ‘Republic’, he states that political knowledge is a supreme art that aims to realize the good of the community. Attaining that knowledge requires serious training. Thus, men and women must be carefully selected and rigorously trained in order to achieve excellence in the art and science of politics. This serious training renders a few of them a class of ‘true philosophers’[60], who deserve to rule the society.
Therefore, the ideal Republic will come into existence if a class of guardians (Philosopher Kings) rules over it.
In the history of political thought, various interpretations of the guardianship model of the State have been suggested, Marxist-Leninism and all the political ideologies which believe in an organized group of revolutionaries, a vanguard, who possess the sufficient knowledge and commitment to overcome capitalism and to lead the working class to establish a socialist and non-class society are samples of the guardianship political theory.
Obviously, Shi’a political doctrine should be categorized as a guardianship model of government because it believes that only those who have specific qualifications (infallible ones or their deputies) have a right to govern the community. For Imamism the problem of leadership is not the question of people’s elections. People have to accept and believe in divinely designated leadership just like the Prophecy in order for it to be practical. Since the fuqaha are generally designated as guardians, the role of the people within the period of occultation increases. They have a duty to acknowledge their governor among the fuqaha directly or through a selected group of fuqaha. Nevertheless, this participation of people does not render Wilayat al-Faqih a purely democratic and non-guardianship theory of State. Robert Dahl is quite right when he states that:
No single interpretation can do justice to the variations among the many different visions of guardianship[61].
However, what he mentions at the beginning of his discussion could be recognized as the central point of the vision of guardianship:
The assumption by democrats that ordinary people are qualified, they, (advocates of guardianship) say ought to be replaced by the opposing proposition that rulership should be entrusted to a minority of persons who are specially qualified to govern by reason of their superior knowledge and virtue[62].
Indeed, the theory of ‘Wilayat al-Faqih’, which is in embodied in the Islamic Republic of Iran, as the first actual experience of Shi’a political ideology, is mixed between guardianship and democracy. While the authority of the faqih and the supervision of Islamic laws and values over all political and social functions of the government emphasise the guardianship dimension of this political system, the approval of representative democracy and the participation of people in electing members of the Assembly of Experts (who choose and can remove the Wilayat al-Faqih’), parliament, president and many parts and local 
councils, show the democratic aspect of this political ideology. Article56 of the constitution emphasizes people’s sovereignty:
Absolute sovereignty over the word and man belongs to God, and it is He who has made man master of his own social destiny. No one can deprive man of this Divine right, nor subordinate it to the vested interests of a particular individual or group. The people are to exercise this Divine right in the manner specified in the following Article.
This chapter aimed to clarify the conception of Wilayat al-faqih and its historical background amongst Imami jurists. The next chapter will concentrate on the problem of justification and examine how the advocates of this political theory legitimize it.
Notes:
[57] Muhammad ibn Hassan al-Tusi, Tahzib al-Ahkam, Kitab ul-Qad’a, Volume 6, p. 218, Hadith 514
[58] Iain McLean, The Concise Oxford Dictionary of Politics, Oxford University Press, 1996, p. 1.
[59] Sahife’ Noor (letters and lectures of Ayatollah Khomeini), Volume 20, p. 170.
[60] Grube maintains that Plato does not mean by ‘philosopher king’ the professional sense that at present the word ‘philosopher’ purport, he says: ‘Plato does not mean that the world should be ruled by pale metaphysicians from the remoteness of their studies, he is maintaining that a statesman needs to be a thinker, a lover of truth, beauty and the Good, with a highly developed sense of values’. Plato, Plato’s Republic, G.M.A. Grube (tr), Indianapolis, 1974, n 13, p.133.
[61] Robert Dahl, Democracy and its Critics, Yale University Press, 1989, p 55.
[62] Robert Dahl, Democracy and its Critics, Yale University Press, 1989, p. 52.