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Is the Jurist Chosen for the position of guardianship by Appointment or by Election?
By: Sheikh Mansour Leghaei
It is obvious that the supportive textual evidence mentioned in the previous chapter regarding the guardianship of the jurist indicates only that the jurist is appointed by the infallible Imam (as), and this goes back to his being appointed by Allah, the Exalted. The Qur’anic ayah regarding the story of Talut: “surely Allah has chosen him and given him an increase in knowledge and physiqueâ€
and the Imam’s words in the narration: “I have made him a ruler over you†and the Imam’s words in the second narration: “I have made him a judgeâ€, as well as the expression of the Commander of the Faithful at the end of the fifth narration: “the implementation of the laws and affairs by the knowledgeable about Allah, the trustees over his halal and haraam†all indicate that this position is affirmed for the jurist without the need for election by the people or their allegiance or similar things.
The position of the guardian jurist is similar to the position of issuing edicts or the position of judgment. Just as these positions are not affirmed through election, neither is the position of guardianship. The jurist is an issuer of edicts, a judge and a guardian whether the people elect him or not. Since the jurists are general representatives of the Awaited Imam (atfs), he is the only one who can appoint them, as was the case with his specific representatives. Guardianship, then, is from Allah and for those whom He made it for.
One can say: there is no dispute between our scholars about the fact that the guardianship of the jurist on limited Hisbi issues- about which they are unanimous- is by appointment only, and there is not even a hint of election in that. Otherwise, it would be a right of attorney (wekala) and not guardianship (wilaya).
The case then is similar when it comes to the general guardianship for those who believe in it. In fact, if a jurist fulfils his substitutive obligation by taking up the role of guardianship, it becomes obligatory upon the Muslims to accept his guardianship, to support him and to be loyal to him, just as it is obligatory for the layman to refer to the expert in jurisprudence when it comes to the rules of the legislation, because of the words of the Awaited Imam (atfs) in his holy letter: “then refer regarding those matters to..â€, and the words of Imam al-Sadiq (as): “they should be pleased with him as a judgeâ€.
There is no difference in this between the layman and other jurists: all must follow him and help him just as is the case in Hisbi issues. Yes, the obligation of the jurist to take up this role depends on whether the Muslims would support or forsake him. It becomes obligatory for him to take up this role if the community would help him. If you wish to call this election then there is no problem with the terminology.
The Commander of the Faithful (as) said in explanation of the reason why he accepted the Caliphate: “…if people had not come to me and supporters had not exhausted the argument…I would have unleashed the rope of Caliphate.â€.
Also, in the letter of Imam Husain (as) to the noblemen of Kufa before his departure to that city he said: “I am sending to you my brother and my cousin, the one in whom I trust from among my household, Muslim ibn Aqeel. If he writes to me that the intelligent and honoured among you agree on the same thing that your messengers have brought, and which I have read in your letters, then I will come to you immediatelyâ€
If there is more than one jurist, or there is doubt about the qualifications of a claimant to the guardianship, then one must refer to the eight conditions and the factors that would prefer one over the other, as is the case in other jurisprudential issues. The ones who should look into this matter are the experts and not all people through an election. This in reality is a case of specifying the example existing in the external world, as is the case with finding the most learned jurist (when it comes to issuing edicts).
Is the System of General or Unconditional Guardianship of the Jurist Compatible with Autocracy or Democracy?
One of the claims against the guardianship of the jurist is that in reality it is nothing but an autocratic government which submits to the ruling of one person who has absolute power, and whose goal is to annihilate democracy. They call this ‘religious dictatorship’. In reply, we say that the system of the guardianship of the jurist is essentially different to the system of autocracy despite the fact that is also different in some ways to democracy.
1- The validity of the guardianship of the jurist is conditional upon his adherence to Islamic laws. This is the meaning of the Qur’anic expression: “the rule belongs solely to Allahâ€. Therefore, the real ruler in the system of the guardianship of the jurist is Allah, the Glorious, the Wise. As for the qualified jurist, he is the one who implements the laws of Allah and submit to them. In contrast to this, the ruler in an autocratic system rules unconditionally without being limited by any law or constitution. Rather, he sees himself as above the law.
2- One of the conditions of the guardianship of the jurist is justice, as was discussed earlier, whereas the ruler in an autocracy rules according to what he wishes and desires.
3- In the system of the guardianship of the jurist, the rights of the ruler over the subjects and the rights of the subjects over the ruler are considered to be complementary. The Commander of the Faithful (as) said: “…Allah, the Glorified, has placed for me a right over you, and that is to take charge of your affairs. You have rights over me similar to those I have over you…and the greatest of the rights that He, the Glorified, made obligatory was the right of the ruler over the citizens, and the rights of the citizens over the ruler. This is an obligation which Allah, the Glorified, made obligatory upon each over eachâ€.
This is why the Commander of the Faithful uses the word ‘rai’ya’ (those to be cared about) when refers to his citizens, because this word implies that the ruler must observe and take care of the rights of the society and its benefits. In contrast to this, the ruler in an autocratic system sees people as a personal possession, and does to them as he wishes.
4- In the system of the guardianship of the jurist all people, including the ruler, are equal before the Divine Law. In contrast to this, the ruler in an autocratic system sees himself as above the law and the maker of the law.
5- The guardianship of the jurist is based on the benefits of Muslims and not the personal or nepotistic benefits of the ruler.
6- In the system of the guardianship of the jurist, all Muslims, especially the scholars and jurists, are able to supervise the system, whereas in an autocracy there is no supervision over the ruler. The ruler in an autocracy is not questioned about what he does, while others are questioned.
In contrast to this, in the system of the guardianship of the jurist, in the words of Imam al-Askari (as): “If the general members of our community see the following characteristics in a jurist and still follow him, then they are like the Jews whom Allah has criticized for following the sinful amongst their jurists:
- sinning openly
- showing severe prejudice
- chasing after the world and its forbidden things
- being oppressive against those they are prejudiced against
- being good and kind to those they are prejudiced towards, even if they in fact deserve to be degraded and demeaned.â€
Yes, the system of the guardianship of the jurist is different in its identity from some of the aspects of democracy. Here, we mention some of the most important differences:
1- the law in the system of the guardianship of the jurist is the rule of Allah, whereas in the system of democracy it is the view of the majority (50+ 1). Therefore, legitimacy in the system of democracy stems from the opinion of the majority, whereas in the system of the guardianship of the jurist it is the rule of Allah which is the basis for legitimacy. For example, in the system of democracy homosexuality is allowed if the majority think that it is allowed, whereas this is not the case in the system of the guardianship of the jurist.
2- The ruler in the democratic system is chosen by an election from the majority, whereas in the system of the guardianship the ruler is appointed by Allah (according to the view that this is done by appointment not election).
According to this, if the majority choose a sinful person who is ignorant of the laws of Allah, and who is a puppet in the hands of the disbelievers- as is the case in some Islamic countries today - this person would be considered a valid ruler. In contrast to this, in the guardianship of the jurist, the ruler must attain the eight conditions mentioned earlier even according to the view of election. For, leading the community in the system of the guardianship of the jurist is only legitimate under conditions set by Islam.
3- The position of governance for the ruler in the system of democracy is limited by a certain number of years, based on agreement, whereas in the system of the guardianship the governance of the ruler continues as long as he is alive and he meets the conditions.
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