Some Misconceptions Surrounding Wilayat al-Faqih

By: Dr. Ahmed Vaezi
Cambridge University, UK
At this point, it is necessary to address two common misconceptions surrounding Wilayat al-Faqih. Many people erroneously assume that it is something new and in essence distinguishable from the traditional status of marja’aiyya. This misunderstanding is caused by a lack of attention to the definitions of and the relationship between ‘Wilayat’ and ‘marja’aiyya’ and the distinction between ‘fatwa’ and ‘hukm’ (the commands of faqih as Wali).
The role of a marja’a taqleed is widely considered to be solely a juridical authority to whom the Muslim community may refer to in the case of religious questions and commandments concerning the practical side of Islam (fiqhi questions). However, this definition is not comprehensive; it concentrates exclusively on one of the legitimized functions of a jurist, while overlooking the others. As we mentioned previously, the faqih has at least three significant functions; as an expert in Islamic law and jurisprudence, he is entitled to undertake ‘ifta’. However, as an appointed deputy of the Imam, he has the authority (Wilayat) to exercise ‘hisbah’ and ‘qada’. Accordingly, every faqih is entitled to issue a decree (fatwa) and, at the same time, to be appointed as ‘Wali’ to undertake specific functions. When the jurist administers justice or acts as a legal guardian to a ‘mawla alayh’ (someone who is without a legal guardian) he is known as a ‘Wali’ or ‘hakim al-shar’ and when he is referred to in religious (fiqh) issues, he is usually called ‘marja’a taqleed’. A necessary distinction must be made between a ‘fatwa’ (decree) issued by a faqih in his capacity as a religious authority (marja’a) and a ‘hukm’ (order) issued by him as a Wali and ‘hakim’ (guardian or ruler).
A ‘fatwa’ is classified as a decree issued by the jurist based on his deductions from Islamic sources. He attempts to determine the position of the Shari’ah and divine commandments with regards to a specific issue, in which his opinion will be adopted by those who submit to his religious authority (muqalid). On the other hand, a ‘hukm’ is an order issued by a Wali regarding a particular set of circumstances, the Islamic legal system and interests of the Muslims. Therefore, it is not merely due to his deduction from a religious source, though he must respect the Shari’ah when issuing a hukm. The hukm is intended to effectively organize and resolve difficulties within Muslim society.
Another key issue concerns the relationship between the first function of the faqih, which is ifta, and the other duties that are subject to his Wilayat (guardianship). Theoretically, these two elements seem independent and entirely separable from one another, but can they really be disassociated?
Suppose that there were one hundred just and capable scholars, who fulfiled the qualities required to assume the role of Wali and marja’a. It is not obligatory upon all of them as an ‘individual duty’ (wajib al-ainy) to assume responsibility for all three functions of a faqih? The answer is negative. Performing these functions is a ‘sufficient necessary’ (wajib al-kefai), which means that if a number of them were to undertake these three duties, then the others would no longer be obliged to issue a ‘fatwa’, to judge or to act as a guardian (if the others are meeting the requirements of the community). In conclusion, although ever faqih potentially could become marja’a and Wali, only a few of them will effectively assume these functions.
At its highest degree, the universal vicegerency of the jurist (Wilayat al-amma) also encompasses political authority (Wilayat al-siyasiyya). Some adversaries of the doctrine maintain that the meaning of ‘Wilayat’ (guardianship) in Imami jurisprudence is essentially incompatible with political authority. They argue that, according to the Islamic legal system, ‘guardianship’ requires the existence of a ‘mawla alayh’ (one who is need of a guardian), which in definition refers to those who are impotent in their affairs, whereas political authority cannot presuppose that the subjects of a government fall into this category. Therefore the guardianship of a faqih is limited in scope and has no connection to political authority[40].
The term ‘Wilayat’ is used in two cases in the Qur’an and Islamic traditions; firstly there are circumstances when a ‘mawla alayh’ is unable to discharge his or her own affairs (in cases of insanity, incapacity or immaturity) – this is umur al-hisbah. The second involves the authority of the Imam to administer justice (Wilayat al-qada) and collect taxes. However this case does not presume any disability on behalf of the ‘mawla alayh’. Although people are generally able to manage their own private affairs, there remain matters in every society that require the existence of a reliable, credible and just authority to undertake and supervise them. The Qur’an introduces Allah, the Prophet and (according to the Shi’a perspective) the Imams as guardians (Wali) over the believers. Clearly these verses consider the believers (mawla alayh) in need of divine guidance and leadership, and not as impotents who need supervision in all of their personal affairs.
The authority and guardianship of the faqih is a social duty, which is delegated to them. Consequently it neither gives them an increased status in humanity, nor decreases the status of people who admit the guardianship of a just and capable faqih. Imam Khomeini says:
By authority we mean governance, the administration of the country and the implementation of the sacred laws of the Shari’ah. This constitutes a serious and difficult duty but does not earn anyone an extraordinary status or raise him above the level of common humanity. In other words, authority here has the meaning of a government, administration and execution of law, contrary to what many people believe, it is not a privilege but a grave responsibility[41].

The Historical Background
Universal guardianship (Wilayat al-amma) is undoubtedly the most fundamental element of Imami political doctrine in the era of occultation (ghaibat). Therefore, it is essential to understand what position the most learned Imami jurists have historically adopted regarding this concept. Moreover, it is often speciously conceived that Wilayat al-amma is a new development in Islamic thought, which has no origins amongst the early Imami jurists. However, a brief survey of its historical background in Imami jurisprudence reveals not only the weakness of this supposition, but it also illustrates that Wilayat al-amma is a concept widely endorsed by many outstanding jurists.
When examining a historical account of scientific studies, it is easy to overlook two important points. Firstly, we often assume that our predecessors approached a problem from the same perspective and with the same clarity as we do. However, this expectation is rarely validated with regards to debates on subjects such as politics, which encompass various dimensions that each constitutes an area of specialized research (such as philosophy and ideology).
Therefore it is hardly correct to suppose that political thinkers in the past necessarily followed the same problem or methodology as contemporary intellectuals. Secondly, although scholars today are freely able to write and express their own ideas, this often leads us to mistakenly expect that the social and political climate was the same for previous scholars, who in fact lived under illegitimate and often oppressive governments. They were thus often forced to practice precautionary dissimulation (taqiyyah) and were unable to explicitly state their opinions.
There are two strands of thought amongst the supporters of Wilayat al-amma. There are those who explicitly and directly insist that the vicegerency of a faqih is universal. While on the other hand, some scholars maintain that a learned jurist may be entrusted to undertake a number of duties in addition to the primary three of ifta, qada and hisbah.
The latter of these two opinions usually occurs in the early period of Shi’a jurisprudence. Until the emergence of the Safawid dynasty in Iran, the Shi’a community existed as a minority, without political power. Hence, the universal authority of a faqih, ruling and political jurisprudence had very little bearing on the circumstances of the Shi’a, which is why the fuqaha devoted less attention to discussing matters of political theory and the duties of a ruler.
When taking into account the opinions of these learned scholars, it is important to recognize that they not only state their personal opinion (ijtihad) concerning the scope a jurist‘s guardianship, but also maintain that this opinion is in accordance with the general consensus (ijmaa) of the Imami fuqaha. This reinforces the assumption that jurists who were historically silent regarding political issues, such as governance and universal authority, remained so due to the social and political circumstances of the time (taqiyyah).
Regarding the first school of thought regarding Wilayat al- amma, one of the most important Imami jurists, al- Muhaqqiq al-Karaki[42]says:
Imami fuqaha have consensus on the point that the fully qualified faqih, known as a mujtahid, is the deputy (nayib) of the infallible ones (peace be upon them) in all the affairs attendant upon the deputyship. Hence, it is obligatory to refer to him in litigation and accept his verdict. If necessary, he can sell the property of the party who refuses to pay what he is due...rather, if it were not for the Wilayat al-amma many of the Shi’a community’s affairs and needs would remain undone[43].
Shaykh Muhammad Hassan[44], The author of an encyclopedic work in Imami fiqh, ‘Jawahir al-Kalam’ writes:
…carrying out Islamic sentences and implementing religious injunctions is obligatory at the era of occultation. Being the deputy of the Imam (Pbuh) in many cases rests with the fuqaha. The faqih’s social status is the same as the Imam. There is no difference between him and the Imam (Pbuh) in this respect.
[The verdict of] Our fuqaha on this issue [is] unanimous; in their works they frequently underscore the idea of referring to a guardian/governor (hukm) who is the agent and representative of the Absent Imam. If the fuqaha are not to have the general vicegerency, all the affairs of the Shi’a will remain unattended. Those who surprisingly raise objections about the Wilayat al-amma of the faqih, then seem to be ignorant of jurisprudence and the words of the infallible ones; they have not pondered these words and their meanings[45].
Hajj Aqa Reza Hamedani[46] also maintains that Wilayat al- amma is a unanimous concept amongst Shi’a jurists:
In any case, there is no doubt that the fuqaha of integrity (Jame al-Sharayeti), who have all the perfect, necessary qualities to undertake the vicegerency are the deputy of the Imam of the time in such matters. Our fuqaha have testified to this in their works. Their statements indicate that they regard the vicegerency of faqih in all matters as indisputable so much so that some of them have taken consensus (Ijmaa) to be the pivotal proof of the faqih’s general guardianship (neyabat al-amma)[47].
As we discussed earlier, many jurists attribute duties to the faqih that require him to be entrusted with universal authority. The evidences regarding the appointment of a faqih as a deputy of them Imam cover many chapters of fiqh, the explanation of which would require many pages. However, in the interests of our discussion, we will examine only a few of them here. Shaykh al-Mufid (334-413 A.H) asserts that the application of legal punishment (hudud) is one of the key functions of a faqih:
It is the duty of the ruler of Islam (Sultan al-Islam) who is appointed by Almighty God to implement hudud. Sultan al-Islam is the infallible Imams from Muhammad’s (Pbuh) family or the rulers and governors (Hukm) who are designated by them. They have entrusted this duty to the fuqaha where possible.
Early Imami jurists applied titles such as ‘sultan al-Islam’, ‘hukm’ and ‘Wali’ to the Imams. Many of these, such as sultan al-Islam, originally belong to the infallibles (Prophet and Imams) and so seldom apply to others. However, the majority of them also refer to those who are the appointed deputies of the Imam as well. For instance, Fakhr al- Muhaqqiqeen[48] says:
The meaning of ‘hakim’ here is the just ruler (al- Sultan al-adil) or his deputy. When there is no access to the Sultan or his particular deputy, it is the role of a well-qualified faqih…so when the author (Allamah Hilli) says “when there is no hakim” he means by ‘hakim’ all these three [above][49].
Muhaqqiq al-Karaki also endorses the above interpretations of ‘hakim’. He writes:
In the era of occultation, the Imam’s general deputy (al-nayb al-amm) is the well qualified jurist…It should be noted that when the fuqaha use the term (hakim) unconditionally, it exclusively refers to a well qualified faqih[50].
It is important to remember that ‘judge’ is not synonymous with ‘hakim’. This is because the application and enforcement of legal punishments, in the view of Imami scholars, is delegated to the governor (hakim) and not the judge (qada). Hafs ibn Qiyas asked Imam as-Sadiq (pbuh): “Who is in charge of punishment, the ruler or a judge?” To which the Imam replied:
“The application of hudud is due to he whom has hukm (who governs)”[51].
This distinction clearly indicates that the application of legal punishments (hudud) requires full political authority; which in turn necessitates universal guardianship (Wilayat al- amma). A view that is supported by many Imami jurists, such as al-Karaki:
The reliable well qualified Jurist who can issue legal decisions is designated by the Imam. Accordingly his rulings are effective and it is obligatory to assist him in the administration of al-Hudud and al-qada, among the people. It is not proper to say that the Jurist is designated for administration of Justice and for giving legal decisions only, and that the Jum’ah prayer is a matter outside the scope of these two responsibilities. Such an opinion is extremely weak because the jurist has been appointed as al-hakim, by the Imams, which is well documented in the traditions[52].
As we discussed, the Jum’ah prayer is a political function, which, in the view of the Imami jurists, belongs to the Imam. Therefore, every Imami jurist who believes that the fuqaha are able to fulfil this function during the period of occultation (ghaibat), would also have admit to the validity of Wilayat al-amma.
Moreover, if the authority of the faqih is not confined to the role of legal arbitration and guardianship, then the Imami mujtahid may say that the fuqaha have the authority to collect Islamic taxes, which is an obvious indication of universal authority. The first shaheed (martyr)[53] says:
It is said that it is obligatory to give ‘zakat’ to the jurist during the occultation if he asks for it himself or through his agents because he is the deputy of the Imam, just as the collector of the taxes is. Rather, however, it is more appropriate to state that his vicegerency on behalf of the Imam is applicable in all those matters in which the Imam himself has authority; whereas the collector is the agent of the Imam only in a particular function[54].
The second shaheed[55] also believes that the Islamic taxes (zakat) should be delivered to the Imam, or to the trusted Jurist during occultation. He later explains why the zakat should be given to the faqih:
One must bear in mind that he (the faqih) is appointed in the interest of the public, and if he were to be dishonest there would occur harm to those who were entitled to receive the zakat[56].
In concluding the historical background of Wilayat al-amma, it is necessary to re-emphasize that this doctrine is widely supported by later Imami jurists. Who, explicitly and more clearly than their predecessors, support the universal authority of a faqih. A number of these jurists, and their works, are as follows:
(1) Mullah Ahmad al-Naraqi, in his work Awaid al- Ayyam, chapter ‘Wilayat al-fuqaha’, Page 529.
(2) Sayyid Mirfattah al-Maraqi in al-Anavin Page.355. Al-Bahr al-Ulum in Bolqatol al-Faqih, Volume 3, Page.231.
(3) Shaykh Abd al-Allah Mamaqani in Risala al-Anam fi hukm e-amwal al-Imam, Page 14.
(4) Mirza al-Nayyini in ‘Al-Makaseb wa al-Bai’, edited by Shaykh Muhammad Amali, Volume 1, Page 336.
(5) Sayyid Muhammad Hussain Borujerdi in al-Badr al-Zahir fi salat al-Jum’a, Page 71.
(6) Sayyid Muhammad Reza Gulpaayigani in ‘al- Hedaya ela man Lahu al-Wilayat, Page 46.

Multiplicity in Wilayat
Although according to Imami political doctrine, authority (Wilayat) is bestowed upon a deputy (Wali) by the infallible Imam, there is an important distinction between the specific designation of a deputy and the ‘general’ designation of a number of deputies.
While there was an explicit nomination for each of the Imams to undertake leadership, and for the vicegerency of the four deputies during the minor absence, the guardianship of the jurists during the greater absence is a ‘general’ designation. This means that no faqih is exclusively appointed as ‘Wali’ and deputy; all Imami jurists who are just and qualified in fiqh (ijtihad) have the right to exercise the Imam’s authority as his deputies. Accordingly, universal authority has been entrusted to many jurists in every age and generation. Inevitably, this multiplicity means that the Imami theory of leadership could be confronted by the problem of disturbances and conflict, as polarization between various sources of decision-making naturally results in differences and chaos. In the context of the present discussion, it is important to assess how the universal theory of guardianship might address such issues.
In most cases, multiplicity does not present any serious problem regarding the functions of the fuqaha. It is unrealistic to insist that all cases of ‘hisbah’ need to be undertaken by a single jurist. Likewise, there is no reason to expect uniformity in ‘Marja’aiyya’ and the administration of justice. The fundamental difficulty arising from multiplicity, however, is that of political authority and leadership (Wilayat al-siyasiyya).
The best way to approach this concern is to consider the status of the fuqaha who are entitled to political authority. Wilayat al-Faqih defines the criteria required of a ruler, and maintains that anyone who fulfils these qualities has the right to govern. In principal, authority (Wilayat) does not demand any extra conditions. However, to be practically applied such authority requires suitable political circumstances and the recognition of the people. According to Imami doctrine, if Muslims appoint a just and capable jurist as their leader, then other fuqaha are obliged to support him and obey his orders, so long as he fulfils the qualities of Wilayat. This situation is comparable to the relationship between judges; when one is responsible for a specific case, though other judges are entitled in principal to perform the same role, they have no right to interfere in his judgment. Shi’a traditions discuss the appointment of the fuqaha as deputies of the Imam, but they do not endorse or design a particular method to acknowledge or elect one or more jurists who possess the Wilayat. Article 107 of the constitution of the Islamic Republic of Iran, suggests the following process:
The task of appointing the leader shall be vested with the experts elected by the people. The experts will review and consult among themselves concerning all the religious men possessing the qualifications specified in Article 5 and 109. In the event they find one of them better versed in Islamic regulations or in political and social issues or possessing general popularity…they shall elect him as the leader.
Notes:
[40] Mehdi Haery Yazdi, Hekmat wa Hokumat, p. 177.
[41] Islam and Revolution, pp. 62-63.
[42] Ali ibn Abd al-A’l who is better known as Muhaqqiq al-Karaki or even the second Muhaqqiq-researcher- (after Helli who is famous as the first Muhaqqiq in fiqh) died in 937/1530. He was originally from Jabal Amel, south Lebanon. He like the first and the second shahid (martyr) completed his studies in Sham and Iraq and different centers of Sunni learning before coming to Iran during the reign of the Safavid denasty (Shah Tahmasb). In this period of Iran‘s history the authority of Imami scholars had been increased and Karaki had a great status in administration of justice. He established a great seminary (Hawza) in Qazvin and Isfahan consequently Iran once again became center of Imami jurisprudence. One of his famous books in fiqh is ‘Jame ul-Maqasid’ which is a commentary on the book of Allama al Helli-Qawaid.
[43] The articles (al-Rasayel) of Mhaqqiq al-Karaki, edited by Muhammad al-Hassun, the first collection (Al Ressala fi al-Salat ul-Jom’a), Qom, 1409AH, pp, 142, 143.
[44] He was of Arab descent and died in 1849. Shaikh Muhammad spent thirty years to complete his great work (al-Jawahir) which the last print of the book in Iran includes forty three volumes. It is a commentary on the book of Muhaqqiq al-Helli (al-Sharay‘).
[45] Muhammad Hassan, Jawahir al-Kalam, Tehran: Dar al-Kotob al- Islamiya, 1398AH, Volume 21, pp. 396-397.
[46] Died in 1904 the author of some significant books in Imami jurisprudence such as ‘Mesbah al-Faqih.
[47] Hajj Aqa Reza Hamedani, Mesbah al-Faqih, The Chapter of Khums, Volume 14, p. 291.
[48] He is Muhammad the son of Allama Helli. His famous book on fiqh is ‘Eidhah al-Fawaid’ which is a commentary of his father ‘s book (al- Qawaid). He died in 771AH.
[49] Fakhr al-Muhaqqiqeen, Eidhah al-Fawaid, Volume 2, p.624.
[50] Al-Jami ul-Maqasid, Volume 11, Kitab ul-wasaya, pp. 266-267.
[51] Shaikh Hur al-A’meli, Muhammad ibn Hassan, Wasael al-Shi°a, Qom: Ahl ul-Bait Institution, 1412 AH, Volume18, p. 220
[52] The Just Ruler, p. 196.
[53] He is Muhammad ibn Makki who was born in south Lebanon-Jabal Amil- in 734AH. Fakhr ul-Mohaqqeqin was one of his teachers. He was martyred as a result of a fatwa issued by a Maliki jurist, supported by Shafei, in the year 786.He has written some significant books in fiqh such as ‘Luma’h’, ‘Durrus’, ‘Dhikra’ and ‘Bayan’.
[54] Translated in ‘The Just Ruler’ from Jawaher al- Kalam, Volume 15, p. 422.
[55] Shaikh Zain ul-Din is one of greatest Shi°a jurists. He was born in 911 AH and was expert in Sunni jurisprudence as well. One of his important works is a commentary on the first Shaheed’s work (Luma’h) and it is a strange coincidence that the author and the commentator both were executed and martyred.
[56] Translated in ‘The Just Ruler’ from Jawaher al- Kalam, Volume 15, p. 422.