Dimensions of the theory of Wilayah al-Faqih

By: Ali Reza Amini Mohsen Javadi
It is said that during the period of occultation of the infallible Imām (‘a), just as the fuqahā are in charge of interpreting the religion and expounding the laws, they also assume the post of leadership and implementation of the religion. The different dimensions of the theory of wilāyah al-faqīh will become clear through attention to the following points:
1. According to the theory of wilāyah al-faqīh, in terms of leadership the Islamic scholar is the successor of the infallible Imām (‘atfs). This succession does not mean that the true station of the faqīh is exactly the same as that of the infallible Imām (‘atfs). Obviously, the true position and station of the infallible Imām (‘a) can never be assumed or occupied by anyone else. The succession of the faqīh encompasses only certain aspects mentioned earlier. However, the superiority of the station of the infallible Imāms (‘a) compared with that of the fuqahā and religious scholars does not invalidate the fact that both the Imāms (‘a) and the fuqahā must be obeyed as the leaders of society.
2. A state based on wilāyah al-faqīh has the necessary authority to decide on matters of public interest. Therefore, when taking public welfare, the principle of consultation and Islamic laws into consideration, the state may decide to restrict individual liberties. These prerogatives are likewise known as “absolute guardianship” [wilāyat-e muṭlaqeh]. Acceptance of absolute guardianship does not mean acceptance of unlimited power. In other words, “absoluteness” is not incompatible with “constitutionalism”. That is, on the one hand, the Islamic government is bound to implement Islamic laws and observe Islamic standards. Even in the government of the Infallibles (‘a), no decision which will incur the displeasure of God can ever be made. ( Al-Bay‘, vol. 2, p. 461) On the other hand, since God has made the Imāms (‘a) the guardians of the people and the society of the faithful and they, in turn, have delegated this position to the fuqahā, the latter have the right to exercise wilāyah within the framework of public interests and the Islamic government has the necessary prerogatives as far as this framework is concerned. Therefore, the following conclusions can be drawn: Firstly, absoluteness can never signify disregarding religious laws. In other words, wilāyah is not absolute to such an extent that the religious laws can be ignored, for basically wilāyah is in fact intended to make the religion prevalent.
Secondly, absoluteness does not mean that the holder of wilāyah can make any decision he likes. In addition to being compatible with religious laws, decisions must be consistent with the interests of people. Without taking into account the public welfare, individual interests cannot be sacrificed. In principle, in the framework of religious laws, none except the Islamic government has the right to ignore individual interests unless there is a higher set of interests at stake, i.e. the interests of society.
Thirdly, the jurist-guardian [walī al-faqīh] is obliged to consult with experts. Thus, absoluteness does not mean disregarding the views of other specialists. As provided for in the Constitution of the Islamic Republic of Iran, the Expediency Council serves as the advisory body of the walī al-faqīh in identifying what is expedient.[ Article 112 of the Constitution of the Islamic Republic of Iran thus stipulates: “(1) Upon the order of the Leader, the Nation’s Exigency Council shall meet at any time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be against the principles of sharī‘ah or the Constitution, and the Assembly is unable to meet the expectations of the Guardian Council. Also, the Council shall meet for consideration on any issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in this Constitution. (2) The permanent and changeable members of the Council shall be appointed by the Leader. (3) The rule for the Council shall be formulated and approved by the Council members subject to the confirmation by the Leader.”]
3. The theory of wilāyah al-faqīh is in no way incompatible with republicanism. Of course, Wilāyah al-faqīh signifies the rule of religion and naturally, with respect to the rule of divine laws, the people have no authority of their own and based on their religion, they are obliged to implement the laws of Islam. The legitimacy [mashrū‘iyyah] of Islamic laws does not emanate from the will of the people. In the same vein, the rightfulness of the Islamic government does not depend on the inclinations of the people.
It is undeniable, though, that an Islamic government is established through the determination of the people and if the people do not desire its establishment, the Islamic government can never be put into practice. Therefore, the legitimacy of a government must be distinguished from its materialization.
Since the Islamic government is a means to materialize some elements of divine sovereignty, its rightfulness stems from the religion. However, in many societies a religious government is not established because the people are incapable of materializing their wish. As such, the religious government has two pillars: a divine aspect—its rightfulness and legitimacy [mashrū‘iyyah], and its people-related element which is the source of the government’s acceptability [maqbūliyyah]. Wilāyah represents the first pillar of the Islamic government while republicanism is the basis of the second.
It is significant to note that the Islamic government cannot afford to disregard its acceptability, for without legitimacy it has no means to exert influence and implement its will and without influence it has no basis for the materialization of its religious aspirations. Thus, the Islamic government must be acceptable to the people both during its establishment and its perpetuity.
Given this explanation it becomes clear that wilāyah, as a matter of appointment [intiṣābī], does not signify disregard for the people’s role in government; rather, it only expresses emphasis on the first element.
4. It is clear that apart from intellectual competence to identify religious views, the government is also in need of other sources of expertise. The theory of wilāyah al-faqīh does not mean that in the Islamic government only fiqh and sharī‘ah are held in honor while other types of expertise and specializations are not shown importance. The decisions of the government are legitimate provided that they are endorsed and approved by the religious leader. It is natural, however, that these decisions must have undergone the required process and reached the stage of final approval. Certainly, in case that they require non-juristic expertise, they must undergo a specific process.
5. In the wilāyah al-faqīh system, the walī al-faqīh is both a real and legal entity. As a real entity, he is equal to all other citizens of the Islamic state in the eyes of the law. As a legal entity, he gives legitimacy to government decisions. After obtaining the approval of the wali al-faqīh, administrative decrees become binding to all including the walī al-faqīh himself and other fuqahā, and no one is excused.
Naturally, whenever a stated law tends to go against the interests of the people, it shall be changed through a well-defined legal mechanism except in cases where it is not possible to do so. In case of the latter, using his legal prerogative and after consultation with the concerned experts, the walī al-faqīh can suspend a law that tends to go against the public interest.
Therefore, “absolute guardianship” does not efface the rule of law and welfare-orientation of the society. Like all other citizens, the walī al-faqīh is obliged to abide by every law enacted for all. In the juristic parlance, to violate the ruler’s decree is unlawful even to the ruler himself. After undergoing the entire legal process, a law is considered a ruler’s decree.
6. Wilāyah al-faqīh does not deprive the people of any of their legitimate and legal liberties. In the system based on wilāyah al-faqīh, the people enjoy civil liberties and have the right to decide on their choice of occupation, place of residence, spouse, and other civil liberties related to their personal lives. Similarly, they enjoy freedom of belief and the government does not impose any particular belief upon them. Naturally, any freedom the exercise of which adversely affects collective life and public welfare lacks any legitimacy.
In the Islamic system, the people are free in their political activities and they are able to criticize government policies. As required by the rule of enjoining what is right and forbidding what is wrong, the people in the Islamic society abide by government orders but at the same time monitor government policies and even criticize them whenever necessary.
They are religiously obligated to keep their criticism constructive and relay their views to officials and leaders of the Islamic society even up to the highest echelon. On the other hand, the Islamic state is obliged to encourage the participation and supervision of the people. In other words, it must strive to promote the people’s political liberties.
Meanwhile, it must be noted with emphasis that the Islamic approach to freedom is much different from that of the atheistic and secular schools of thought. From the Islamic perspective, freedom does not signify empowerment of the people to commit sins and promiscuities—this is unacceptable. Any promotion of ‘freedom’ which carries the people away from divine sovereignty is unethical and unprincipled and in conflict with virtue.
7. In the Islamic system, many mujtahidīn have been recognized by the people as sources of emulation [marāji‘ at-taqlīd]. Meanwhile, the walī al-faqīh is also a mujtahid who has a particular understanding of Islamic laws and this understanding may be different from that of other mujtahidīn at a particular time. In such a situation, this question is raised: Which view should the people follow in discharging their religious duties?
This conundrum has also been expressed in a different way: In a religious government, on the one hand, the door of ijtihād is open and different interpretations are advanced by marāji‘ at-taqlīd and mujtahidīn through the institution of ijtihād. On the other hand, all the many views cannot practically be converted into administrative decrees. In such a situation, how can administrative decisions be based upon religious views? What is the duty of those people who follow marāji‘ at-taqlīd whose views are not reflected in the administrative decrees and laws?
In reply to these questions, it must be said that obviously, no law can accommodate and reflect all views. It must be borne in mind that once a requirement of the law and government is approved, only one ijtihād can be the basis of a law or administrative decision. Similarly, we have implicitly accepted that in any realm where the government has to make decisions, naturally the organs constituting the government must act based on those decisions. In such a situation, in cases where acting upon the law is not considered against the verdicts of a marja‘ at-taqlīd, practically no problem will arise. However, in cases where a conflict exists, assuming that the issue in question is within the jurisdiction of the religious government, the government’s decree or decision shall prevail.
Therefore, by delineating the jurisdiction of government decisions and those of personal affairs which are beyond the jurisdiction of the government, the faithful citizen can abide by government policies and at the same time follow his marja‘ at-taqlīd. This is also applicable to the marāji‘ at-taqlīd in the sense that, although they have their own particular juristic views, they must also abide by government policies. In the same vein, experts in fields other than religion must abide by administrative decrees and government decisions even where their expert opinions are inconsistent with those decrees and decisions.
8. The theory of wilāyah al-faqīh is the understanding of the Shī‘ah ‘ulamā’ and mujtahidūn from the religious sources. Among the mujtahidīn, there may possibly be different views on the Islamic political system during the period of occultation which are distinct from the theory of wilāyah al-faqīh. In such a situation, there is no doubt that only one view must be considered official on which the religious government should be based.
Formalization of a political system has its own process. One conventional method is to transform a theory on the Islamic system into a public covenant. When based on public consensus, a theory acquires a legal status, and it is natural that others who possess a different view must accept the theory as the foundation of the government. It is true that the door for discussion and exchange of opinions regarding the theoretical foundation of the government is always open and the right of concerned experts and scholars to express views is reserved.
However, the subject must not be discussed in such way that it would lead to public distrust in the foundation of government and indifference to the legal body, especially the constitution. Obviously, even those who believe that the law must be changed acknowledge a specified way or mechanism of legal amendment.
9. Every political system is explainable within the framework of a particular worldview. When accepting a particular worldview, not every political system can then be accepted. Naturally, depending on a person’s perspective on the world and humanity, there are certain limitations in his choice of the type of political system.
Given this explanation, it must be noted that the religious government must not necessarily be consistent with other prevailing political systems. It should not be expected that every political system could be reconciled with the Islamic worldview in every aspect. As such, in dealing with political systems which have been formed on the basis of non-Islamic viewpoints, one must be very careful and meticulous and reserve the right to criticize and deliberate. If there are positive or acceptable points in these systems, these points must be taken and used while observing the limits set by the Islamic worldview or ideology.
This point is applicable with respect to all political concepts. For this reason, in dealing with such concepts, first of all their association with religious views must be examined. Of course, without sufficient knowledge of both the concepts and religious ideology, this examination will be defective. It is possible that in certain political systems, there are certain elements that can be accepted as positive points.
On this basis, it cannot be asserted that democracy, as it is implemented in the West, is totally compatible with the Islamic system. Nevertheless, some of its features as a positive product of human experience can be considered compatible with religious concepts. In other words, a democratic model can be accommodated within the framework of an Islamic system. That is, while the legitimacy of the Islamic system is anchored in religious views, the substance of democratic decisions is also compatible with Islamic law. So long as it does not contradict Islamic rules, democracy as a method or means can be taken.
Public participation in different levels of decision-making, implementation of a parliamentary system, devising systems to monitor the performance of executive organs, selection of officeholders through general suffrage, and similar elements can also be adopted in an Islamic system.