A Short Treatise on The Guardianship of the Jurist

In this book, the author discusses in detail the concept of the Guardianship of the Jurist from an historical perspective, analysing the textual authority for its implementation while clarifying its underlying principles. This text also addresses some of the commonly asked questions regarding this concept.

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Preliminary Discussions

1)The Definition of ‘Authority’ (walaya)

Al-Raghib; the famous Arabic philologist says in his al-Mufradat: “ ‘wala’ and ‘tawalli’ is when two or more things occur side by side without anything external to them being between them. This is used metaphorically to indicate spatial, familial, religious, personal, political or ideological proximity. ‘Wilaya’ is aiding or backing, while ‘walaya’ is when one takes charge of an affair.

It has been said that ‘wilaya’ and ‘walaya’ are like ‘dilala’ and ‘dalala’ (i.e. there is no difference between their meanings), but the correct opinion is that ‘walaya’ indicates taking charge of an affair. ‘Wali’ and ‘mawla’ therefore are used in relation to this meaning”1

According to this, the guardian (wali) of an orphan is the one who has charge of his affair, and a king may be described as: ‘the guardian of the affairs’. Thus, the permission to act is part of the meaning of the word. Therefore the claim of some who interpret ‘wilaya’ to mean only ‘love’ is not something that can be supported linguistically.

This is because if the intention was to speak of mere love, which is a matter of the heart, the expressions ‘love’ or ‘affection’- the antonyms of ‘hatred’ and ‘dislike’- would have been used. However, guardianship gives the meaning of taking up another’s affairs, and its antonym is ‘enmity’, which is transgressing against and infringing upon others’ affairs.

Therefore, acting for the benefit of another is guardianship whilst acting to harm another is enmity, and both are related to physical actions (not a mere affection). Allah, the Exalted, has said in the Holy Qur’an:

“And (as for) the believing men and the believing women, they are guardians of each other; they enjoin good and forbid evil” (9:71).

Here, Allah, the Blessed and Exalted, mentioned the mentioning of good and the forbidding of evil as examples of the guardianship of the believers over one another. Obviously, enjoining good and forbidding evil is in most instances physical action. Similarly, in the narration of Ghadeer: “whoever I am his guardian, then Ali is his guardian”, the Prophet (pbuh) meant to affirm for Ali (as) the same authority to act and the same precedence that belonged to the Prophet (pbuh) himself.

This precedence is mentioned in the Holy Qur’an:

“The Prophet has precedence over the believers with regards to themselves…”.(33:6).

The meaning of guardianship here is the authority to act and manage the affairs for the benefit of the Muslim community.

2) The Difference between Guardianship and Representation (or power of attorney)  (al-Wilaya versus al Wikala)

a-      Guardianship is a right bestowed by Allah while representation is a right given by the one who is being represented.
b-      Unlike guardianship, representation can be widened or narrowed according to the desire of the one giving representation.
c-      Representation becomes void at the death of the one being represented, whereas guardianship becomes void in the absence of the conditions (of a guardian).

3)The Meaning of Jurist

What is meant by ‘jurist’ here is one who is a ‘Mujtahid’ (one with the power of deducing Islamic laws) and who possesses the eight conditions which will be mentioned in the fifth chapter of this treatise.

4)The Points of Dispute about the Guardianship of the Jurist

Firstly: does the jurist have any guardianship?

Secondly: is the guardianship of the jurist general or limited?

In order to clarify the meaning of general or limited guardianship of the jurist, one must first explain the possible positions a qualified jurist (i.e. one who meets the conditions) may take, and which may be his task and which he would have authority over. These are many, and here we discuss the most important ones among them:

1) The authority to give legislative rulings (fatawa) in non-fundamental issues and deductive issues, which the ordinary person must follow.

2) The authority to judge in litigation.

3) The authority over orphans, the insane and the foolish in the absence of a father, grandfather or trustee.

4) The authority over the wealth of those who are absent, such as the one who is absent due to travel, imprisonment or unknown whereabouts. In this situation, it is permissible for the jurist to rule regarding him in the presence of sufficient evidence and to sell his wealth and pay off his debts while he is absent.

5) The authority to use the wealth of the Imam (as) – which is made up of half of the Khums- as well as a wealth whose owner is unknown and a wealth which has no heir. Because it is necessary to rule regarding this wealth and to use it in its correct usage, someone must perform this task and there is no one more appropriate to do this than the qualified jurist. In fact, he is the one whose authority in this field is certain, whilst the authority of others is doubtful.

6) The authority to solemnize or dissolute marriages in general, as agreed on unanimously by the scholars. An example is his authority to solemnize a marriage for someone who is not fit to make decisions due to insanity or similar things and who does not have a guardian. Another example is his authority to dissolute a marriage in favour of a woman whose husband is missing despite investigation.

7) The authority of the qualified jurist in these six areas is unanimously agreed upon. In fact, his authority in these situations is considered a necessary part of the Shi’a jurisprudence.

The authority to implement punishments and reprimands: there is dispute about his authority in these matters in the period of occultation. Sheikh a-Mufeed (al-Muqni’a:810), Sheikh al-Tusi (al-Nihaya: 732), Shahidul Awwal, Shahidul Thani (al-Lum’a and Sharhul Lum’a), al-Hurr al-Amili (Wasailul Shia, the chapters on the preliminaries to punishments, chapter 28) and most of the later scholars such as al-Fadhil al-Hindi in Kashful Litham (2:149) and al-Fadhil a-Miqdad in Tanqeehul Rai’ (1:579) are of the opinion that the qualified jurist does have authority here.

In fact, it is related that this is the famous opinion. Yes, there is apparent hesitancy in the words of al-Muhaqqiq al-Hilli in al-Sharai because he says: ‘it has been said that it is permissible for the jurists who are knowledgeable- of the legislative rules- to implement the punishments in the period of the occultation of the Imam (atfs)’ (Sharai’ul Islam).

However, the author of al-Jawahir found this hesitancy strange and said: ‘the doubt of some scholars regarding this issue is strange. It is as if he has not tasted anything of the taste of jurisprudence, nor understood anything from their words or symbols’ (Jawahirul Kalam, 21:397). This statement gives the impression that the authority of the jurist in these matters is a self evident fact in our jurisprudence.

8) Authority in all matters established directly for the infallible Imam (as), including running the Muslim community and its assets. The most important of these matters are the political affairs of the Muslims and the leadership of the Islamic government.

According to this, it is the obligation of the jurist to work out every task that belonged to the infallible Imam (as) as the leader of the Muslim community, and then to give whatever task was found to be so to the qualified jurist. Thus, the qualified jurist would be the one with the authority to rule with regards to the wealth and lives of the people according to what he sees to be the general benefit.

Therefore, general guardianship of the jurist is that which includes the last type of authority, considering that the other seven are unanimously agreed upon. Thus if one says that the jurist does not have general guardianship, they mean that his authority does not apply in the last category- or the last two categories at most.

It has become clear from this that what is meant by the general or unconditional guardianship is that which is different to the guardianship limited to the individual non-fundamental issues. General or unconditional guardianship does not mean that his authority is above the divine law or that he has authority without any limitation or condition.

Perhaps the expression of ‘general guardianship’ (al walaya al a’mma) used in the past is better than the term ‘unconditional guardianship’ (al walaya al mutlaqa) which has become famous recently. This is because the latter expression leaves room for misunderstanding for the one who does not have sufficient knowledge of the subject.

The Types of the Power of Authority (i.e. the eighth type of authority listed above)

a-      Independence of the guardian jurist in his own actions, without taking into consideration whether the actions of others need his permission or not.
b-      The lack of dependence of others in acting and their actions needing his permission.

The Types of Permission of the Guardian Jurist for the Action of Others

a-      in the form of representation: such as the representative of the guardian jurist.

b-      in the form of delegation and appointment such as appointment for bequest on behalf of the guardian jurist.

c-      in the form of agreement such as the permission of the guardian jurist for another person to pray on a deceased person who has no guardian.

Thirdly: is the designation of the guardian jurist by appointment or election?

We shall discuss all the above matters in the coming chapters.

- 1. In this translation, ‘wilayat’ will be translated as guardianship and ‘wali’ will be translated as ‘guardian’

‘The Guardianship of the Jurist’ in the words of the Shi’a Jurists throughout history

1. Sheikh al-Mufeed, (d. 413 AH)

Who says in al-Muqni’a, while explaining the obligation of the Friday prayer and the Eid prayers: ‘the jurists of the Shi’a of the Progeny of Muhammad (pbuh) must gather their brethren for Friday prayer and the Eid prayers, as well the prayer of invoking rain, and the prayer of the lunar and solar eclipse if they are able to do this...because the Imams have left this authority for them in the case that they are able to do this. This is indicated by as many narrations as you want me to quote, including narrations which are authentic according to those who have knowledge of narrations.’1

He also said in his chapter on enjoining good and forbidding evil: ‘one who is performing this obligation cannot kill or wound anyone except by the permission of the ruler (i.e. qualified jurist) of the time who is in charge of running the affairs of the nation’.

He also said in his chapter on wills: ‘...if there is no ruler (i.e. an infallible Imam) to do what we mentioned in these chapters, it is for the just, intelligent, virtuous jurists of the Shi’a to take the authority over that which the ruler took authority over, but if they are unable to do this then they are not liable’.2

He also said in his book on judicial punishment: ‘as for carrying out the judicial punishment, it is the authority of the ruler of Islam, who is appointed by Allah. These rulers are the Imams of guidance from among the Progeny of Muhammad (pbuh), and those rulers and judges whom they have appointed for this purpose. The Imams left the authority of judgment to the jurists of their Shi’a if they are able to do this and are not afraid that the tyrant ruler of the time may harm their children or slaves etc...and the jurists of the Shia of the Imams (pbut) should gather their brethren for the five daily prayers, the Eid prayers, the prayer of invoking rain, the prayer of lunar and solar eclipse...and they must judge between them by truth and bring resolutions in disputes between them in the claims in the absence of any evidence...’3

2. al-Sayyid al-Murtadha (d. 436 AH)

He took charge of the affairs of Hajj and the two Sacred Mosques (in Mecca and Medina), as well as the leadership of the assembly of the Noble Descendents of the Prophet (P), and the position of supreme judge for a period of thirty years during the reign of Buveydis dynasty4. The fact that Sayyid al-Muratdha and other scholars like him accepted these posts indicates that they believed in the guardianship of the jurist and that these posts were a way of gaining some of the rights from the tyrant rulers of their time.

3. Abul Salah al-Halabi (d. 447 AH)

He was the student of Sayyid al-Murtadha. He said in his chapter on implementation of the rulings: ‘Implementing the rulings is the task of the brave, insightful, just jurist who is able to implement the rulings.’5

4. al-Muhaqqiq al-Hilli (d. 676 AH)

He says at the end of his chapter on Khums: ‘the one who has the power to rule by the right of representation should take charge of using the portion of the Imam for the existing groups (who are eligible recipients of the Khums).’ 6.

Also, al-Shahidul Thani says in his book ‘al-Masalik’, in explanation of the above words of al-Hilli: ‘what is meant by this is that the just, Imami jurist who meets all the conditions has the authority to issue rulings (fatawa) because he is the representative of the Imam (as) and the one appointed by him’ 7. Muhaqqiq al-Hilli also said in the chapter on ‘Wills’ in the above-mentioned book: ‘if one has no trustee, then the ruler (i.e. the jurist ruler) is the guardian over what he leaves behind’.

5. Ibn Fahd al-Hilli (d. 841 AH)

He was the student of al-Shahidul Awwal (Muhammad Ibn Makki, martyred in 786 AH). He was one of the most famous believers in the general guardianship of the jurist among the ancient scholars. He said in his book ‘al-Lum’a al-Jaliyya fi Ma’rifatil Niyya’ in the chapter on enjoining good and forbidding evil:

“(Enjoining good and forbidding evil have stages) the lowest of which is believing that obligatory acts are obligatory, and forbidden acts are forbidden. The next stage is to express dislike (when a sin is committed), then to dissociate and turn away from the person committing the detestable act…one should not move from one stage to the next unless the lower stage does not have an effect.
If one needs to move to the stage of legislative punishment and execution, this will be subject to the permission of the Imam (peace be upon him)…and the jurist as his representative. It is also an obligation on people to assist the jurist (in execution of the law).’

He also said regarding the intention of the jurist in paying the Khums to those who deserve it that the jurist must intend the following:

‘I intend to pay this amount to this deserving person because of my power of attorney on behalf of so-and-so and my representation of the Owner of the Affair (as)’ or ‘I extract this amount in representation of the Owner of the Affair (as)…’ 8

This indicates that the jurists take charge of these affairs in representation of the Present Imam (as), even if apparently they are appointed by certain rulers such as in the case of al-Sayyid al-Murtadha.

Ibn Fahd further said: ‘Chapter 8 : On Jihad: Jihad is obligatory upon a male, mature, free person who is free from blindness or chronic illness, who has not been forbidden by his parents from participating and not so poor that he cannot afford to pay for his own weaponry and expenses- these latter conditions apply in the case where there are already sufficient soldiers- if the Imam or his general representative; who is the trustworthy jurist, or his specific representative call for a war against: a Harbi 9, or those who have broken the conditions of a treaty, or the rebels, or in self-defense, whether in the presence of the Imam or during his occultation.’ 10

6. Al-Muhaqqiq al-Thani (Nurul Deen al-Karaki, d. 940 AH)

This scholar had a great role in the adoption of the general authority of the jurist. It seems that the establishment of the Safavid dynasty in Iran- which is considered the first Shiite government to control all of Iran- helped Sheikh al-Muhaqqiq to make his political rulings public. He said in his treatise on Friday Prayer: ‘Our scholars, may Allah be pleased with them, are in agreement that the just, Imami, jurist who meets all the conditions of issuing rulings, and who is called a Mujtahid in the legislative rulings, is a representative on behalf of the Guiding Imams (as) in anything in which such representation may be involved…therefore it is obligatory to refer to such a jurist in legal disputes and to abide by his rulings…including any authority that may be proven for the appointee from the Imam (as)’. 11

This treatise can be found at the following web address:
http://www.aqaed.com/shialib/books/all/09-ras-karaki/09-ras-karaki-01.ht... [10]

He also said in another treatise, named ‘Qatiatul Lijaaj fi Tahqiq Hallil Kharaj’: ‘if you say: is it permissible for the one who has the power of representation during the state of occultation to take charge of this (i.e. various types of tax)? I mean: can the qualified jurist take charge of this affair?

We would say: we do not know of any clear expression of this from the scholars. However, whoever considers it permissible for the jurists to take charge of implementing legislative punishments and other tasks of the post of leadership, must also consider this permissible by precedence because this is less dangerous than that. This is especially because the ones deserving (to be paid from these taxes) are present in every age, and this is not a right that is limited to those fighting in military battles only, as will come in future discussions.

If one reflectively and fairly analyses the situation of our great scholars of the past, such as al-Sayyid al-Sharif al-Murtadha, the guided scholar, and the most knowledgeable of scholars from among the earlier and latter ones; the supporter of the truth and religion, Sheikh a-Tusi, as well as the ocean of knowledge, the Mofti of all Muslim sects, who is the adornment of the religion and community, al-Hassan ibn al-Mutahhar (al-Hilli), and others, may Allah be pleased with them, he will have no doubt that they had this view, and made this permissible, and they would not fill their books except with that which they thought was true’.12

This treatise can be found at the following web address:
http://www.aqaed.com/shialib/books/all/18-ras-karaki/18-ras-karaki-03.html [11]

Muhaqqiq al-Karaki has also said: ‘our scholars have said regarding the way that tax should be spent: the Imam should allocate it for the sustenance of soldiers, governors, judges, as well as for other aspects of governance’.13

7. al-Muhaddith Faydh al-Kashani (d.1090AH)

He divided governments into legitimate and illegitimate and said that a legitimate government has three examples:
-the first being the guardianship of the Prophet (pbuh)
-the second the guardianship of the infallible Imam (as)
-the third the guardianship of the jurist
He then proved the guardianship of the jurist using intellectual and textual evidence. Refer to his book: ‘Mafatihul Sharai’14

8. al-Wahid al-Bahbahani (d.1206AH)

He is the first jurist of those we know that dedicated an independent chapter to a discussion about the guardianship of the jurist. He specified the thirty third section of his book ‘al-Fawa’id al-Hairiya’ for a discussion on the guardianship of the jurist and said that the jurist is called a ‘mufti’ because he gives ‘fatwa’ (rulings) and is called a ‘qadhi’ (judge) because he settles disputes, and is called ‘hakimul shari’ (the legislative ruler) because he has authority over the political affairs of people.15

9. Mulla Ahmad al-Naraqi (d.1245 AH)

The teacher of Sheikh Murtadha al-Ansari and the author of ‘al-Jawahir’. He is perhaps the first who dedicated a chapter to specifically discuss the general guardianship of the jurist in his book ‘Awaidul Ayyam’16

This can be found at the following web address.
http://www.naraqi.com/ara/g/g03/g03.htm [12]

In this section, he says: ‘whatever the Prophet (pbuh) and the Imam (as)-who were the rulers over the people and the fortresses of Islam- had authority over and whatever right belong to them also belongs to the jurist, except that which specific evidence- be it textual, consensual or otherwise- has excluded’.

10. al-Sheikh Murtadha al-Ansari (d.1281)

In his book ‘al-Makasib’, he limited the guardianship of the jurist to the functions of giving rulings and settling legal disputes. He objected to the authority to take charge of the affairs of people and said that ‘it would be easier to prove that pigs fly than to prove the general guardianship of the jurist!’

11. Akhund Muhammad Kadhim al-Khurasani (d. 1329, after being poisoned).

He was the author of ‘Kifayatul Usool’. He commented on the ‘Makasib’ of Sheikh al-Ansari and agreed with him about the insufficiency of the textual evidence in proving the general guardianship of the jurist. However, he proved it through intellectual evidence.17

12. Mirza Muhammad Husayn al-Na’ini (d.1355)

He authored a book in the Farsi language regarding Islamic government and called it ‘Tanbeehul Umma and Tanzeehul Milla’. He completed it in 1327 AH, that is, 28 years before his death. He authored this book at the time of the ‘uprising of Mashroota’ in Iran and proved in it that the general guardianship of the jurist is one of the clearest examples of ‘hisbi’18 issues.

13. Sayyid Abul Qasim al-Khu’i (d. 1413)

His theory on the guardianship of the jurist is similar to Sheikh al-Ansari’s one. He limited it to the authority to give rulings and to judge in legal disputes. (Refer to ‘al-Tanqeeh fi Sharhil Makasib, 2:156-176)

This book can be found at the following web address:
http://www.al-khoei.us/books/index.php?id=5096 [13]

14. Imam al-Khomeini (d. 1409)

He clarified the theory of the general guardianship of the jurist in twenty lectures of his ‘Bahthul Kharij’ (higher Islamic studies) lectures in Najaf in 1348 AH. He said that the general guardianship of the jurist is among the propositions whose proof lies within themselves.

- 1. al-Muqni’a: 81

- 2. al-Muqni’a: 675

- 3. Ibid. p. 811

- 4. The Buveyhids (Āle Booye) reigned between 320 to 440 AH. The time of their rule is known as ‘the Renaissance of Islam

- 5. al-Kafi fil Fiqh, p.442

- 6. Sharaiul Islam, 1:213

- 7. Masalikul Afham, 1:476

- 8. Ibid.

- 9. Harbi; is the one who has waged a war on Muslims.

- 10. Ibid

- 11. Rasailul Muhaqqi al-Karaki, p.142

- 12. Qatiatul Lijaj, p.60-61

- 13. Ibid

- 14. Mafatihul Sharai vol.2, p.50

- 15. Refer to ‘al-Fawa’id al-Hairiya, p.501-502

- 16. Awaidul Ayyam section 54

- 17. Commentary on al-Makasib, p.93

- 18. Any affair in the Muslim community for which there is no specific guardian. On all such issues a just jurist is the guardian

The Role of the Jurist in Different Areas of Jurisprudence

In this chapter we will conduct a quick survey in different areas of jurisprudence. As you will see, the survey shows:

1) The necessity of the existence of a legislative ruler (al-Hakim al-Shar’) in order to implement the divine laws, and that:
2)    Governance is part of the system of Islamic jurisprudence.

1) Prayer

a-   Congregational prayers: Islam has emphasised on congregational prayers even in the battle lines, in which case it is called the prayer of fear or prayer of pursuit. 1

b-   Prayer for the deceased: it is narrated from Abu Abdullah (as): “if the Imam is present at the burial of the corpse then he is the most worthy to pray over it”2. It is also narrated from the Commander of the Faithful (as):  “if a ruler from among the rulers of Allah is present at the burial of the corpse then he is more worthy of praying over it” 3. The meaning of ‘ruler’ and ‘Imam’ in these and similar narrations is more general than the infallible Imam (as) and the just jurist, as will come later. This is why Sheikh al-Tusi says in ‘al-Mabsoot’: ‘if the just Imam attends he would be more worthy of leading and it would be obligatory upon the guardian (of the deceased) to ask him to go forward to lead’4. Therefore, the specification of the word ‘Imam’ to the infallible Imam by the author of al-Jawahir is out of place.

c-   Burying the deceased Muslim who has no guardian, trustee or heir is the obligation of the legislative ruler.

d-   Friday prayer: the one who should take up its establishment is the leader of the community or his representative. Al-Fadhl ibn Shathan narrated from al-Ridha (as): “if it is said: ‘why was the sermon put in place?’ It would be said: ‘the congregational prayer is a general gathering and so He wanted to make a way for the leader to advise the people and to encourage them towards obedience and frighten them from disobedience, and to help them towards that which is beneficial for their worldly and religious affairs, and to inform of all the harmful or beneficial events that are taking place across the globe.” 5

e-  The Eid Prayers: it is narrated in the authenticated narration of Suma’a from Abu Abdullah (as): “there is no prayer on the day of Eid except with the Imam”6.. This narration is relevant based on the possibility that ‘Imam’ in this narration is not referring to the leader of the congregational prayers but to the leader of the community.

2) Fasting and Ritual Self-Isolation (i’tikaf)

It is narrated in the authentic narration of Muhammad ibn Qays from Abu Ja’far (as): “if two witnesses witness in the presence of the Imam that they saw the crescent moon thirty nights ago the Imam would command the people to break their fast (the next day)” (Wasailul Shia) our jurists are in agreement that the term ‘Imam’ in this context means the (just) ruler.

3) Zakat

It can be understood from the Glorious Book and numerous narrations that Zakat is among the taxes of the Islamic government and that the one who is in charge of collecting and distributing the Zakat is the Legislative Ruler, through his workers. The following two narrations will be sufficient to prove the point:

a-   The authentic narration of Zurarah and Muhammad ibn Muslim, in which they narrate from Abu Abdullah (as) regarding the interpretation of the Qur’anic ayah: “surely, charity is for the poor and the indigent...” that he (as) said: “the Imam shall give all of these people”7

b-   It is narrated from al-Ridha (as): “if a person who is overwhelmed with debt borrows money or seeks to borrow money rightfully, he would be given one year respite. After this year, if his situation does not improve, the Imam shall fulfil his debt from the public treasury.”8

4) Khums, Anfal and Kharaj

There is no disagreement about the fact that Khums and Anfal belong to the Imam due to his leadership, and this is why they are passed on from the Imam to the next Imam and not to the heirs of the Imam. Abi Ali ibn Rashid narrated from Imam al-Hadi (as): “whatever belonged to my father because of his position of Imamat belongs to me, and whatever belonged to him for other reasons is inheritance.”9

It is narrated from Imam al-Kadhim (as) that he said: “Khums applies to five things: war booty, treasures found while diving, treasures under the earth, the mines, and Salina. From each of these five things Khums should be extracted and allocated to those whom Allah (swt) allocated it to...

It should be divided among them according to the Holy Book and the Sunna such that it will suffice them for that year...and the earth which was taken by force with men and horses, it is given to those who work on that land, cultivate and maintain it, according to what the Ruler agrees with them as per their share; being a half, or a third, or two thirds, and according to what will be beneficial for them and will not harm them...

The rest of the Khums will go towards the sustenance of the assistants of the Ruler in establishing the religion of Allah, as well as what he sees fit to strengthen Islam and strengthen the religion, such as Jihad and other things which have a general benefit. None of it, whether a large or small amount, is for himself. Besides Khums, the Anfal belongs to him.

Anfal is any ruined land whose inhabitants have abandoned it, as well as any land that was not attacked by horses and horsemen but whose inhabitants reached an agreement and surrendered without fighting. To him also belongs the peaks of the mountains and the insides of the valleys, as well as the woods and any barren land with no caretaker...and he is the heir of the one with no heir” 10

5) Hajj

In the narration of Abdullah ibn Sinan from Abu Abdullah (as): “if people stopped making the pilgrimage of Hajj, it would be obligatory upon the Imam to force them to perform Hajj”11 (Wasailul Shia)

In another narration from Abu Abdullah (as): “if people did not perform Hajj, it would be obligatory upon the ruler to force them to do this, and to stay there. Also, if they stopped visiting the Prophet (pbuh), it would be for the ruler to force them to do this and to stay there. If they did not have the financial means, he would have to spend on them from the public treasury of the Muslims”.

6) Jihad

The obligation of Jihad in general is one of the necessities of the religion of Islam. The ayat regarding this obligation are numerous. Is it possible to imagine Jihad- whether it be defensive or pre-emptive- without a ruler or governor or army? Sheikh al-Tusi said regarding fighting those who oppose the Imam: ‘whoever rebels against a just Imam and breaks his allegiance to him and opposes him in his rulings, then he is a rebel and it is permissible for the Imam to fight him and battle against him’.12

7) al-Hijr (to limit someone’s legal competence)

The necessity of a government in dealing with the affair of a Mahjour (the one who is restricted in accessing his wealth) is clear. In the narration of Safwan it is narrated: “I asked Abul Hassan (as) about a man who owed another man some money. The one to whom the money was owed died and left two trustees. Is it permissible to pay that debt back to one of the two trustees and not the other trustee? He (as) said: ‘this is not proper, unless the ruler had divided the wealth between them and placed half of it in the possession of one and half in the possession of the other, or they reached an agreement under the auspices of the ruler.’”13

8) Marriage and Divorce

In the authentic narration of Abu Basir it is narrated: “I heard Abu Ja’far (as) saying: ‘if one had a wife and did not clothe her with that which would cover her ‘awra (the parts of the body which should be covered) and did not feed her with that which would give her strength, the Imam has the authority to separate them.’”14

In another narration from Abu Ja’far (as) by Abu Basir: “if I had authority over people, I would teach them how to divorce, then I would not come across a man who went against this except that I would strike him painfully on his back.”15

9) Judgment and Sentencing

There is no doubt that the task of judgment and implementation of punishments is one of the tasks of the government. In the narration of Hafs ibn Ghiyath it is narrated: “I asked Abu Abdullah (as): ‘who implements the punishments, the ruler or the judge?’ He (as) said: ‘the implementation of punishments is the task of the one who rules”16

10) Judicial Punishment and Blood-Money

Jurists have defined judgment to be a legislative authority on behalf of the Imam (as) to look after the laws and benefits of the general public. The author of al-Jawahir says: ‘perhaps what is meant by their mentioning guardianship- since we know that the judges are not an example of it- is clarification that the role of making true judgments is a status and a role just like that of leadership and that it is one of the branches of the tree of general leadership of the Prophet (pbuh) and his successors (as)’.17

Therefore, there is no doubt that implementing the judicial punishment and the rules of blood-money needs an Islamic government and a legislative ruler. One option is to say that these laws should be suspended during the period of occultation.

This is both impermissible legislatively and would mean that the greater part has been excluded, because the time of occultation is far longer than the time when the Infallibles (as) were present.

It is narrated from Abu Ja’far (as): “a legislative punishment implemented on earth purifies it more than it would be purified by forty days and nights of rain”18

In another narration from the Commander of the Faithful (as): “O Allah, You have said to your Prophet, may Your blessings be upon Him and His Progeny, in among that which he informed about: ‘whoever suspends a punishment from among My punishments then he has become stubborn against Me and asked through this My enmity.’”19

Therefore, the rules of judicial punishment and blood-money in Islamic jurisprudence indicate the necessity of an Islamic government more clearly than the sun in the middle of the day.

- 1. Refer to ayah 4:102.

- 2. al-Kafi, 3:177

- 3. al-Tahtheeb, 3:206

- 4. Jawahirul Kalam, 12:22

- 5. Wasailul Shia

- 6. Wasailul Shia

- 7. Wasailul Shia

- 8. al-Kafi, 1:407

- 9. Wasailul Shia

- 10. al-Kafi, 1:539

- 11. Wasailul Shia

- 12. al-Nihaya: 296

- 13. Wasailul Shia

- 14. Wasailul Shia

- 15. Wasailul Shia

- 16. Wasailul Shia

- 17. Jawahirul Kalam, 40:9

- 18. Wasailul Shia 28:12.

- 19. Wasailul Shia

The Principles Underlying the General Guardianship of the Jurist

The First Principle: Man is Gregarious by Nature

Man is gregarious by nature and he cannot meet his needs except though socialization and mutual help. However, often with socialization comes a clash of desires and a conflict of ideas, and there comes about a definite need for laws and a power to implement these laws in a just manner, so as to prevent transgression and conflict. This power (to implement laws) is what we mean by government.

This is why we see that the life of mankind, in all its stages- even in the stone age- was never free of a government no matter how small and simple, be it just or unjust. A system, even if it is oppressive, is better than the absence of any system and thus anarchy. The Commander of the Faithful (as) said: “people must have a leader, whether he is righteous or a transgressor” 1

There is no doubt that the Imam (as) does not mean to justify the leadership of a transgressor. Rather, he wants to show that it is, according to the intellect, more preferable than anarchy if the choice was only between the two.

The Second Principle: The Rule Belongs Solely to Allah

There is no doubt that Allah, the Exalted, is our Creator and that creation, nurturing and guidance are all in His hands. He is Omniscient of what would benefit His creation and slaves in their worldly and religious affairs. Similarly, the Almighty does not rule except that which would be beneficial for us as well as the system of existence.

No matter what level of knowledge mankind reaches, he will be unable to and will always fall short of fully knowing what would benefit him in both this world and the Hereafter.

Therefore, mankind must submit to Allah, His divine legislation and His just wise laws in all stages of his life. Allah, the Exalted says:

“the rule is only for Allah, He declares the truth, and He is the Best Judge.” (6:57).

He also says:

“He who does not rule by what Allah has revealed, they are the disbelievers…He who does not rule by what Allah has revealed, they are the oppressors…He who does not rule by what Allah has revealed, they are the transgressors’”2

The Third Principle: Islamic Jurisprudence is the Constitution of Life, including Government

We discussed in the last chapter the necessity of the Imam and the ruler in most of the fields of jurisprudence, and that Islamic jurisprudence is not a set of individual rules of worship only. Rather, it includes the constitution of life including Islamic government.

It encompasses financial laws- such as in Khums, Zakat and Kharaaj- civil laws- such as in marriage and divorce- military laws- such as in Jihad, border security and rules of war captives- and punitive laws- such as in judgment, sentencing and blood-money.

Thus Islamic jurisprudence is the constitution of the Islamic government in its entirety. Because of this, al-Kashani called one of the chapters in his book ‘al-Wafi’: ‘there is nothing that people need except that there is a reference in the Book or the Sunna for it’3.

The Fourth Principle: Islamic Government is a Necessary Part of an Islamic Society

The endurance of Islamic jurisprudence necessarily requires there to be an Islamic government which ensures that Islamic jurisprudence is put into practice and which takes up the role of implementing it. Otherwise, the divine laws will be overlooked, as is the current situation in many countries which are ‘Islamic’ by name.

The Fifth Principle: It is Necessary to Appoint a Leader who will take up the role of implementing the Islamic Laws in Order to achieve that Aim

The necessity of governments means the necessity of a trusted ruler who is well versed in the divine laws. Al-Fadhl ibn Shaathan narrated from Ali ibn Musa al-Ridha (as): “a person said: ‘why did He appoint guardians and command that they should be obeyed?’

He (as) said: ‘for many reasons. Among them: if He did not place for them an upright, trustworthy, protective Imam the community would have been overwhelmed and religion would have perished. The practices and laws would have been changed; the innovators would have added to the religion and the disbelievers would have subtracted from the religion, and they would have made things ambiguous for the Muslims’”4

Since the Islamic Ruler must be the most knowledgeable of people about the laws of Allah and the most just amongst them, there is no doubt that in the presence of an infallible (as), there would be no room for the guardianship of anyone but him. This is why the truthful sect believed in the guardianship of the Commander of the Faithful (as) after the demise of the Prophet (pbuh), and that the Prophet (pbuh) and his infallible successors (as) have the right of general guardianship and the right of complete divine representation. Al-Muhaqqiq al-Tusi says: ‘the Imam is a blessing, his appointment is obligatory upon Allah the Exalted in order to achieve the desired aim’5. This is all in relation to the time of their presence (as).

The Sixth Principle: it is not Permissible to Suspend Divine Laws in the Era of Occultation

There is no doubt that the laws of Islam do not become abrogated, and there is no doubt that they last till the Resurrection Day. Otherwise, it would mean that the greater period of time was excluded from these laws. It would also lead to the performance of prohibited acts as well as the spread of corruption during the period of occultation, and this is definitely something to be avoided in the view of the Legislator.

The author of al-Jawahir says: ‘…among the strange things is the doubt that people have about this, it is as if they have not tasted anything from the taste of jurisprudence…and in general the issue is one of the self evident facts that does not need any evidence.’6

Therefore, in the period of occultation, and the time when the community is deprived of an infallible ruler, we have two choices. Either we ignore governance- and this goes against the fourth principle because it is ignoring something important which people need in order to organize their current and next life, as was discussed earlier- or we say that the Holy Legislator left it to the community to run their own affairs as they see fit, according to the doctrine of democracy or dictatorship or other political ideologies that may be common in any place or time.

The latter is invalid like the former, because in both cases an important need of the Muslim community is ignored. Which need is greater than the need for one who would manage the affairs of the community and maintain the order of the Muslim lands during the time of occultation, while maintaining the Islamic laws which cannot be implemented except at the hands of the guardian of the Muslims?

Therefore, no option remains except to specify a legislative ruler: the qualified jurist who is the closest person to the infallible. Because of this, Imam al-Khomeini (may Allah have mercy on him) says: ‘that which is a proof for Imamat is in itself a proof for the necessity of governance after the occultation of the Guardian of the Affair, may Allah the Exalted hasten his holy return’7.

It is perhaps because of this that it is often said that the science which is responsible for proving the guardianship of the jurist is theology not jurisprudence.

If one argues: why is it not permissible that the ruler be one of the people with the jurist taking an advisory role only?

The answer would be: the evidence that proves in theology that it is not permissible to give precedence to one with a lower status to one with a higher status applies here also. Umar ibn al-Khattab used to take the advice of the Commander of the Faithful (as) at times, for otherwise there would be no meaning to his words: ‘Had it not been for Ali, Umar would have perished’. Despite this, he was a usurper of the right of the Commander of the Faithful (as). Allah, the Exalted, says: “is He then Who guides to the truth more worthy to be followed, or he who himself does not go aright unless he is guided? What then is the matter with you; how do you judge?” 8

Moreover, the task of protecting the Islamic government is not carried out by mere advice, because the ruler who is not a jurist may not adhere to the advice of his advisors, as is the habit of rulers.

The Seventh Principle: The Consecutive Indications for the Necessity of the General Guardianship of the Jurist

The Seventh Principle: The Consecutive Indications 9 for the Necessity of the General Guardianship of the Jurist

1-The guardianship of the jurist in the roles which are agreed upon among the scholars- such as giving jurisprudential edicts and judging- necessitates the guardianship of the jurist in politics and in running the affairs of the community as well. This is because acting with regards to Khums, judgment and the implementation of judicial sentences is the role of a government.

Thus the qualified jurist during the period of occultation either has general guardianship in representation of the infallible Imam (as) or has no right of representation at all. This is because the wisdom for representation exists for whatever is confirmed to have been the role of the Imam in running the affairs of the community and is not limited to issuing edicts and the authority over Khums.

2-The strong prohibition against referring to the unjust judges and their scholars indicates indirectly that there is strong encouragement towards referring to the just judges and scholars. During the period of occultation, this means nothing except referring to the legislative ruler, who is the qualified jurist.

In other words, there is no guardian for the Muslim community during the period of occultation because the original guardian (atfs) is in occultation, while the one who claims specific representation of the Imam during the major occultation is a liar, and the one who has no right of representation from him (atfs) is a tyrant without any authority of guardianship over the community at all. Therefore, the guardianship of the general representative of the Imam (atfs) is established (as the only remaining sound option).

This general representative is the jurist, because of the definite principle: ‘the ruler (i.e. the just ruler) is the guardian of the one who has no guardian’, which is understood from some narrations 10.

This principle means that the jurist takes up the role of the guardian because there is no guardian other than him. Analogous to this is the consensus of the jurists without any disagreement that the legislative ruler is the guardian over the one who is not intellectually mature- due to insanity or similar things- and who has no family member who may be a guardian.

The ruler would, for example, have the authority to enter him into a marriage if this was beneficial for him. They have all agreed that the legislative ruler takes the role of the guardian because such a person has no guardian, and they based this on the above-mentioned principle. 11

3-The guardianship of the jurist on minor Hisbi affairs indicates, by precedence, his guardianship over government. 12

The Holy Legislator guides towards the performance of beneficial actions and the avoidance of harmful actions in one of the three following ways:

a-   He requests that beneficial actions should be performed  and that corrupt actions should be avoided from the Muslim individuals in a general, encompassing form, just as He commanded them to pray, give charity and perform other specific obligations.

b-   He requests that beneficial actions should be performed and that corrupt actions should be avoided as a substitutive general obligation, just as He commanded to perform the prayer for the deceased as well as other substitutive obligations.

c-    He requests that beneficial actions should be performed and that corrupt actions should be avoided without specifying a particular doer for these actions. These are what our jurists call the Hisbi (literally: reward or control) affairs, such as appointing a guardian for an orphan who has no guardian, or performing the funeral rites of a deceased person who has no guardian, etc.

Allamah Bahr ’ul-‘Uloom said: ‘Hisba means proximity, indicating any action with which one intends to gain proximity towards Allah (swt). It refers to any good action which one knows should be performed in the external world according to legislation, but which has no specific person to perform it’ 13 The proof for this is the unconditional nature of the Qur’anic ayah: “and help one another towards goodness and piety” 14

Our scholars have agreed that the one who takes up these Hisbi affairs is the infallible (as) if he is able and present. In the narration of Hobaba al-Walibiya, she narrates: “I saw the Commander of the Faithful (as) among the enforcers of the law. With him was a whip with two tongues. He would strike with it the ones selling the impermissible types of fish (catfish, eel, zammar)”15.

The scholars have also agreed that the one who should take up these responsibilities during the period of occultation is the jurist or his representative and that this is not permissible for anyone else.

There is also no doubt that one of the most important things which we know the Legislator wants to occur in the external world is the Islamic government. If we then assume that He had not appointed anyone to take up this affair specifically during the period of occultation, then surely it would be one of the Hisbi affairs which is one of the tasks of the jurist, and in fact the most important one.

Imam al-Khomeini said: ‘maintaining the order, defending the borders of the Muslims, protecting their youth from deviating from Islam, and stopping the spread of anti-Islamic propaganda and similar tasks are among the most clear of the Hisbi issues, and these goals cannot be achieved except by the formation of a just Islamic state. Thus even if we do not consider the evidence for Guardianship 16, there is no doubt that the ones that we are certain have the authority to perform this duty are the just jurists’. 17

- 1. Nahjul Balagha, Sermon 40

- 2. Refer to ayah 5:44-45-47

- 3. al-Wâfi,1: 205-265

- 4. Ilalul Sharai’, 1:253

- 5. Kashful Murad: 490

- 6. (Jawahirul Kalam, 21:397)

- 7. Al Bay’, 2:619

- 8. Refer to ayah 10: 35

- 9. A consecutive indication is an indirect necessary indication. For example, when you say this room has a ceiling, its consecutive indication is that it necessarily has walls too

- 10. Wasailul Shia, 22:158, The evidence indicating that the general representative of the Imam (as) is the qualified jurist will come in the next section.

- 11. Jawahirul Kalam, 29:19

- 12. This proof is based on the assumption that the evidence indicating that the guardianship of the jurist is a substitutive obligation is not complete. Otherwise, and this is what is correct, there is no need for it.

- 13. Bolghatul Faqeeh, 3:290

- 14. Refer to Ayah 5:2

- 15. Wasailul Shia

- 16. The evidence for this will come in the next chapter.

- 17. al Bay’, 2:665

Textual Evidence which supports the General Guardianship of the Jurist

Proving the general guardianship of the jurist does not need any textual evidence once the previous seven principles are established. Therefore, the textual evidence that we will discuss in this chapter is really nothing but supportive evidence for what we have already established. Therefore, if some of the chains of the coming narrations are not authentic, or if the indication of some of the narrations is arguable, it does not harm the concept we are trying to prove.

Some scholars have denied the general guardianship of the jurist- including al-Muhaqqiq al-Khurasani 1 and al-Sayyid al-Khui 2, as well Sheikh al-Ansari who said that it would be easier to prove that pigs could fly- because of the deficiency of the textual evidence. This is out of place, because the textual evidence is nothing more than supportive evidence for the general guardianship of the jurist. As for the concept itself, it is one of the self-evident propositions, which need to specific evidence to be proven.

A.   Evidence from the Holy Qur’an

1-Allah, the Exalted, has said:

“ And hold fast all of you together, to the Rope of Allah and be not disunited …” 3

It is obligatory for the believers to hold on to the rope of Allah in all their affairs, the most important of these affairs being governance. The rope of Allah during the era of occultation is the qualified jurist, who is the general representative of the Awaited Imam (atfs).

2- “And from among you there should be a group of people inviting to all that is good and enjoining what is right and forbidding what is wrong, and these it is that shall be successful”4

3-“O you who believe, obey Allah and obey the Messenger and those in charge of the affairs from among you” 5

Using this Ayah as supportive evidence depends on a few points:

-firstly: that the apparent meaning of ‘affair’ (‘al-amr’ in ‘ulil amr’) is leadership, governance and running the affairs of the community. The use of ‘affair’ (amr) in this way is very common. The Commander of the Faithful (as) said: “when I took up the affair (amr), a group broke its allegiance…”6. He (as) also said: “the most worthy among people for this affair (amr) is the strongest of them for it, and the most knowledgeable of the Command of Allah in its regard.”7. Also, in the sermon of the Master of the Martyrs to the companions of Hurr: “We, the household of Muhammad have precedence over those claimants in taking charge of this affair (amr) over you.” 8

-secondly: the apparent meaning of the ayah being that the obedience to those in charge of the affair is the same as the obedience to the Messenger. This is supported by the two titles (those in charge of the affairs, and the Messenger) being coupled with one another without any separator between them. Obeying them can have two meanings.

The first is obeying them when they are clarifying the rules of Allah, the Exalted. This cannot be, because it is not a command different to the obedience to Allah which has already mentioned in the ayah. The other meaning is obeying the commands that emanate from them, meaning that they are in charge of running the social, political and judicial affairs of the community, and this must be the correct meaning.

-thirdly: the meaning of ‘those in charge of the affair’: numerous narrations have been narrated by our scholars with the meaning that those in charge of the affair mentioned in this ayah are specifically the twelve Imams (as) from the progeny of the Prophet (pbuh). Among them is the narration in al-Kafi, through his chain to Burayd al-Ijli from Abu Ja’far (Imam Baqir a.s): “it is specifically referring only to us. He commanded all of the believers until the Resurrection Day to obey us” 9

Because these narrations clearly express that the ayah is referring to the twelve infallible Imams (as), the late Imam al-Khomeini did not use this ayah to prove the guardianship of the jurist. However, it can be said that there is no doubt that the expression ‘in charge of the affair’ is different to expressions such as ‘the close of kin (qurba)’ 10 or ‘the Household (ahlul bayt)’ 11. The latter expressions mean the twelve Imams specifically (as), whereas the former is a general expression that includes anyone who has the authority to take charge of the affair according to the legislation. In the era of the presence of the Imams (as), they are the most complete example of the ones in charge of the affair, and the community was obligated to pay allegiance to them and obey them, without any doubt.

However, during the era of occultation, when the community is deprived of the most perfect example, then the authority to take charge of the affairs goes to he who is closest to the perfect example and that is the qualified jurist, so that he may stop anarchy.

Therefore, the limitation in the narrations is not real. Rather, it is relative 12, meaning that it was only meant to distinguish between the true Imams and the tyrant rulers who were claiming rights that did not belong to them. This does not hinder us from adhering to the ayah in order to establish the right of authority for the one who has this right according to legislation. Al-Kulayni narrated through his chain to the Commander of the Faithful (as): “Know Allah by Allah, the Messenger by the Message and those in charge of the affair by the enjoining good, justice and good actions” 13

In other words, there are three possibilities for the meaning of ‘those in charge of the affair’ in the ayah:

-the first: any ruler or leader unconditionally, as is the opinion of most of the Sunnis

-the second: the infallible Imams (as) specifically, as is indicated by the apparent meaning of some of the narrations, as is the opinion of the majority of the Shia scholars

-the third: those who have the authority to take charge of the affair- both in terms of the ruling and the specific example- according to the legislation. Therefore, it is not permissible to obey one who does not have a legislative right to take charge of the affair, and the right of obedience is specific to the infallible (as) in his presence, whereas in his absence this right goes to the one who has been appointed by the infallible, either specifically- such as the people appointed by the Commander of the Faithful (as), e.g. Malik al-Ashtar and Muhammad ibn abi Bakr and others- or generally such as the qualified jurist.

4- “Surely Allah commands you to fulfil the trusts to their owners and that when you judge between people you judge with justice; surely Allah admonishes you with what is excellent; surely Allah is All-Hearing All-Seeing.” 14

The apparent meaning of ‘trust’ in the ayah is a general concept that includes the trusts of wealth and so on between people, as well as the trusts Allah has left with his slaves such as His Holy Book and His commands and prohibitions, and the trusts He has left with His vicegerents, which is leadership. They are the ones ordered to take care of the rights of their people and to be just between them, and to rule by what Allah has revealed. A part of the letter of the Commander of the Faithful to al-Ash’ath ibn Qays, his appointee at Azerbaijan reads: “your work is not a source of sustenance for you, rather, it is a trust around your neck” 15

There is no doubt that guardianship is one of the greatest examples of a trust, and perhaps the fact that it is coupled with ruling by justice in the ayah is evidence that it is the example of trust intended here. This is because ruling by justice is one of the affairs of guardianship and one of its branches, and one of the examples of fulfilling the trust to its owners.

B.   Evidence from the Narrations

The narrations that affirm the guardianship of the jurist in general are very many in number. Al-Naraqi has mentioned nineteen narrations in ‘al-Awa’id’, of which we will mention the most important ones:

1-the accepted narration of Umar ibn Handhala

Al-Kulayni has narrated from Muhammad ibn Yahya, from Muhammad ibn al-Husayn, from Muhammad ibn Isa (al-Yaqtini) from Safwan ibn Yahya, from Dawud ibn al-Husayn, from Umar ibn Handhala: “I asked Abu Abdullah (Imam Sadiq a.s) about two men from among our companions who were involved in a dispute with one another about a debt or inheritance. They sought the judgment of the ruler or the judges, is this permissible?

He (as) said: ‘anyone who seeks their judgment, in truth or falsehood, then he has sought the judgment of a tyrant. Whatever that ruler rules for him will be considered illegitimate, even if it was right in reality, because he acted according to the rule of a tyrant, while Allah has commanded that the rule of a tyrant should be rejected. He, the Exalted, has said: ‘they wish to seek the judgment of the tyrant, while they had been ordered to reject his ruling’’.

I said: ‘so what should they do?’ He (as) said: ‘they should look for he among you who has narrated our narrations and looked into what we have made permissible or impermissible and who knows our rulings. They should seek his judgment and be content with this, for I have made such a person a ruler over you. If he rules by our rules and that person does not accept that from him, then he has taken the rule of Allah lightly, and has rejected us, and whoever rejects us has rejected Allah, and this is the edge of associating partners to Allah’”. 16

2-the famous (or ‘accepted’ according to al-Jawahir, 21:394) narration of Abu Khadija

Sheikh al-Tusi narrated with his chain from Muhammad ibn Ali ibn Mahbub, from Ahmad ibn Muhammad, from al-Husayn ibn Sa’id, from Abul Jahm, from Abu Khadija: “Abu Abdullah (Imam Sadiq a.s) sent me to our companions and told me to tell them: ‘if a dispute arises between you, or a disagreement about an issue of giving and taking comes about between you, be wary of seeking the judgment of any of those sinful people. Appoint between yourselves a man from among those who know what we say is permissible and impermissible, for I have made such a person a judge. Beware of raising your disputes to the tyrant ruler.’”17

There is no problem with the chains of the two narrations because the scholars have categorised both of them as ‘accepted’ narrations. As for their indication for our discussion we say:

The narrations speak specifically about judgment. However, there is no doubt that judgment is part of government and that its external power usually comes through the ruler and his police force. Otherwise, the judge himself has no power to implement or prevent. So judgment in itself is not alternate to guardianship, but is one of the tasks and roles included within guardianship.

This is why often the guardian (leader, ruler) himself takes up this task, or the judges take up this task by appointment from him. Therefore, using these two narrations to prove the authority of judgment for the jurists, but then saying they do not apply to them to rule- as is the opinion of most jurists- is not a valid distinction. A number of things indicate this point:

-the first: analysing the Holy Qur’an and honourable sunna shows us that rule (hukm), governance (hukuma), ruler (hakim) and expressions derived from those words are used to described a judge.

An example of the first is the following Qur’anic ayah in which the expression ‘hukm’ is used to indicate judgment:

“and if you judge between people, judge between them by justice” (4:58) .

Similarly, the narration of Imam al-Sadiq (as) through Sulayman ibn Khalid in which the word ‘hukuma’ is used to indicate judgment: “be conscious of ruling for the ruling belongs to the Imam who is knowledgeable in judgment and who is just between the Muslims, similar to a prophet or a trustee of a prophet.” 18

An example of the second is the narration of the Commander of the Faithful (as) in which the expression ‘hokkam’ (plural of Hakim: governor) is used to indicate governor: “He substituted for them instead of degradation, honour, and instead of fear, security, so they became governing (Hokkam) kings and knowledgeable leaders...they are the governors over people and kings in the extremities of the earth.” 19 Similarly the narration from Imam al-Sadiq (as): “Our Shia will be the rulers and the heads (highest authorities) of the Earth in the government of the Qa’im”20.

Therefore the word ‘hakim’ (ruler) is used to mean both a judge (qadhi) and a ruler (Wali). In fact, the two posts have one general meaning, and this is because there is no implementation for the ruling of the judge unless he is appointed on behalf of the ruler. Because of this, the opinion that ‘hakim’ is synonymous with ‘qadhi’ but different to ‘wali’-as is the opinion of Sayyid al-Khui 21 -is not supported by the usage of these words in the textual evidences.

-the second: the use of the expression ‘over you’ by the Imam in the accepted narration indicates superior status and this is the characteristic of the ruler who is in power. If it was supposed to mean judgment only then it would have been more appropriate to say: ‘between you’.

-the third: in the first narration, the Imam (as) first uses the expression ‘qadhi’ and then ‘hakim’ and ‘hakam’. This hints that the meaning is the judgment emanating from the ruler, and not the partial judgment like that between a husband and wife mentioned in the following ayah of the Qur’an:

“a judge from her family and a judge from his family” 22

-the fourth: the Imam (as) says: ‘be wary of raising your disputes to the tyrant ruler’. This hints that the obligation is to resort to the just ruler who knows the legislative laws, and is it possible to imagine obligating the people to resort to the just ruler when he has no authority over the affairs of people?!

-the fifth: the fact that ‘qadhi’ is opposed to ‘sultan’ (king or ruler) indicates that the ‘hakim’ and ‘qadhi’ are different.

The context of the narrations is with regards to judgment and the raising of legal disputes. However, the end of the accepted narration, which says: ‘I have made him a ruler (hakim) over you’ is a universal principle which is mentioned in order to show the cause for the ruling. Therefore, it is the generality of the evidence, not the specificity of the situation that has authority in this case.

3-The Narrations indicating that the Scholars are the Heirs of the Prophets

a-   Al-Kulayni narrated through an authentic chain from Ali ibn Ibrahim from his father from Hammad ibn Isa from al-Qaddah from Abu Abdullah (Imam Sadiq a.s): “the Messenger of Allah (pbuh) said: ‘whoever takes a path seeking knowledge on it, Allah will set him on a path to paradise. The angels lower their wings for the seeker of knowledge out of pleasure with him, and the inhabitants of the earth and the skies seek forgiveness for the seeker of knowledge, including even the whale in the sea...and surely the scholars are the heirs of the Prophets...the Prophets do not pass on dinars and dirhams as inheritance, but they pass on knowledge as inheritance. Whoever takes from this knowledge, he has attained abundant fortune.’” 23

b-   The Commander of the faithful (as) said: “the people closest to the Prophets are the most knowledgeable about what the Prophets taught.” 24

c-    It is narrated from the Prophet (pbuh): “the scholars of my nations are like the prophets of Bani Israil”. 25

These narrations are relevant because the scholars being the heirs of the Prophets or those closest to them or like them means that whatever role belonged to the Prophets belongs to them, except those roles about which it has been proven that they cannot be passed on, such as Prophecy, natural guardianship and essential virtues. If you want, I would say: what is meant is that the general roles are transferred to the scholars, including teaching people, guiding them, judging between them and managing their affairs.

The prophets, especially the Messengers (as) from among them, had the right of general guardianship. Allah, the Exalted, says:

“ Certainly We sent Our messengers with clear arguments, and sent down with them the Book and the balance that men may conduct themselves with equity; and We have made the iron, wherein is great violence and advantages to men, and that Allah may know who helps Him and His messengers in the secret; surely Allah is Strong, Mighty .” 26

The unconditional nature of the narrations means that the general guardianship that belongs to the Prophets transfers to the scholars of Islam.

The claim that what is meant by ‘the scholars’ is the twelve Imams specifically- as Sayyid al-Khui argues in al-Tanqeeh- is refuted by the fact that there is no evidence for such a specification. In fact, the beginning of the first narration, which says: ‘whoever takes a path, seeking knowledge on it’ indicates that there is no such specificity. Yes, there is no doubt that the infallible Imams (as) were the scholars who were perfect in knowledge.

Yes, the problem with using the first narration as evidence is that there is a clear expression in that narration that what is passed on as inheritance is knowledge and not general guardianship, and because of the presence of this connected contextual evidence, attributing the ‘inheritance’ to be for all the roles of the prophets is problematic.

4-The Jurists are the Fortresses of Islam

Al-Kulayni narrates from Muhammad ibn Yahya from Ahmad ibn Muhammad from Ibn Mahbub from Ali ibn abi Hamza, who said: “I heard Abul Hassan, Musa ibn Ja’far (as) saying: ‘When a believer dies, the angels, the parts of the earth on which he used to worship Allah on and the gates of heaven from which his actions elevate will weep for him. Similarly a crack appears in Islam that will not repaired by anything, because the learned believers are the fortresses of Islam, just as the walls of a city are its fortresses’”27.

The chain of narration: there is no problem with the chain of narration except with regards to Ali ibn abi Hamza al-Bata’ini because he was one of the major figures of the Waqifiya. However, it is possible to trust his narration, either because the one narrating from him is Hassan ibn Mahbub, about whose trustworthiness the scholars agree, or because of the testimony of Sheikh al-Tusi: ‘the scholars have acted according to his narrations’ 28.

Because of this, many of the great narrators such as Safwan, ibn abi Umayr, al-Bazanti, ibn Mahbub and others narrated from him. We ought to also keep in mind that his conversion to the belief of Waqifiya occurred only after the martyrdom of Imam al-Kadhim (as).

Its content and relevance: Imam al-Khomeini said regarding the relevance of this narration to the ruling under discussion:

‘It is an obvious fact, as discussed earlier that within Islam there is a system and a government for all affairs. Thus, there remains no doubt that the jurist is not a fortress for Islam- just as a wall is for a township- except by being the maintainer of all the roles, including implementing justice and the judicial punishments, defending the country’s borders, collecting taxes and dues, and spending them for the benefit of the Muslims and appointing premiers in the territories.

Otherwise, mere statutes would not be ‘Islam’. In fact, it may be said: Islam is the government in all its roles, and the rules are the laws of Islam, and the rules are among its affairs. In fact, the rules are sought not for themselves but as instruments for implementing the laws of Islam and bringing about justice. Therefore, for a jurist to be a fortress for Islam, just as the walls of a city are a fortress for it, has no meaning unless it means that the jurist should be the guardian, having the same role as the Messenger of Allah and the Imams, may the blessing of Allah be upon all of them, when it comes to the affairs of ruling.’ 29

The following quote from Imam Ali (as) from the sermon of Shiqshiqiya, in which he tells of the reason for accepting Khilafa, supports what Imam al-Khomeini says: “if people had not come to me and supporters had not exhausted the argument and if there had been no pledge of Allah with the learned to the effect that they should not acquiesce in the gluttony of the oppressor and the hunger of the oppressed I would have untied the rope of Caliphate”. 30

One may argue that what springs to mind from the expression ‘protecting Islam’ is educational activities, calling to Islam, refuting the objections against Islam and similar things, and that implementation and the execution (of the laws) is a different issue altogether. Otherwise, one would have to say that the infallible Imams- except perhaps the Commander of the Faithful (as)- and many of the jurists throughout the history of the Shi’a were not protectors or fortresses of Islam because none of them had guardianship over the matters of governance or rule.

The answer to this argument is that: the discussion is in the realm of reality, meaning that the real guardianship belongs to the infallible Imam (as) in his presence, while in his occultation it becomes the right of the closest of people to him, and that is the qualified jurist. I

n the practical realm, however, this guardianship depends on the presence of an opportunity for them. Al-Kulayni narrated from Sadeer al-Sayrafi: “I entered upon Abu Abdullah (Imam Sadiq a.s) and said to him: ‘by Allah, remaining seated (i.e. not rising up) is not appropriate for you’. He (as) said: ‘and why, O Sadeer?’ I said: ‘because of the multitude of your followers, Shi’a and helpers.

By Allah , had the Commander of the Faithful (as) had as many supporters as you have, the tribes of Taym and Uday would not have coveted against him. He (as) said: ‘O Sadeer, how many would they be?’ I said: ‘a hundred thousand’. He said: ‘one hundred thousand?!’ I said: ‘yes, and two hundred thousand’.

He (as) said: ‘two hundred thousand’?! I said: ‘yes, and half of the world’. He (as) went quiet then said: ‘would it be easy for you to come with us to the pasture?’  I said: ‘yes’. He ordered for a donkey and a mule to be prepared.  I went ahead and mounted the donkey. He (as) said: ‘O Sadeer, would you mind leaving the donkey for me?’ I said: ‘the mule is better looking and nobler (for you)’.

He (as) said: ‘the donkey is friendlier towards me’. 31 So I came down and he mounted the donkey and I mounted the mule. We kept riding until the time for prayer set in and he (as) said: ‘O Sadeer, let us stop here and pray’. Then he (as) said: ‘this is a salty land; it is better not to pray here’. So we continued to ride until we reached a red land and he saw a boy looking after a flock of sheep, and he (as) said: ‘By Allah, O Sadeer, if our Shi’a were to the number of these sheep, it would not have been appropriate for us to remain seated.’ We stopped there and prayed, and when we had finished prayer I went to the sheep and counted them. They were seventeen in number” 32

5-The Narration ‘the jurists are the trustees of the Messengers’

Al-Kulayni has narrated from Ali ibn Ibrahim from his father from al-Nawfali from al-Sakuni from Abu Abdullah (Imam Sadi a.s) who said: “the Messenger of Allah (pbuh) said: ‘the jurists are the trustees of the Messengers as long as they do not enter into the world (dunya).’ It was said: ‘O Messenger of Allah, what do you mean by their entering into the world?’ He (pbuh) said: ‘following the (tyrant) ruler; if they do this, then be wary of them when it comes to your religion’”. 33

The narration is authenticated in terms of its chain. It is relevant because one can argue that the unconditional expression of the narration indicates that the jurists are the trustees of the Messengers in all matters related to the message, the most clear of which is leadership of the community and the implementation of social justice. What we discussed earlier about the interpretation of the ayah: “Allah commands you to fulfill the trusts to their owners” supports this.

Earlier, we have also discussed the narration from the Commander of the Faithful (as) about the government being the clearest example of a trust. The sermon of the master of the martyrs (as), which he narrates from the Commander of the Faithful (as) also supports this.

In that sermon, the Imam urges towards enjoining good and prohibiting evil: “the running of the affairs and the laws are in the hands of the scholars of God, who are the trustees over his halaal and haraam…O Allah, you know that what occurred was not a competition for power or seeking the vanities of this world, but so that we could return the truths of your religion and bring about good in your land and so that the oppressed among your servants may feel secure…”34.

Yes, one may argue that the expression of the narration is not unconditional because of the end of the narration: ‘be wary of them when it comes to your religion’ which hinders the establishment of any unconditionality. The apparent meaning of the narration, when one considers its end, is that the jurist who adheres to religion and who is independent in his ability to clarify the laws and who is not following the (tyrant) rulers of the time is the trustee of the Messengers.

6-The Holy Letter

Al-Saduq has narrated in Kamalul Din: “Muhammad ibn Muhammad ibn Isam al-Kulayni narrated to us from Muhammad ibn Ya’qub al-Kulayni from Ishaq ibn Ya’qub: ‘I asked Muhammad ibn Uthman al-Amri to take a letter of mine in which I had asked about issues which were problematic for me. An answer came to me in the handwriting of our master, the Present Imam (May Allah hasten his reappearance): ‘as for the upcoming affairs, refer to the narrators of our narrations, for they (i.e. the narrators) are my proof against you and I am God’s proof against them’’’35.

The authenticity of the chain of narration depends on the principle of the authenticity of the ‘teachers of license’, because Muhammad ibn Muhammad ibn Isam has not been praised in any books of biography and so cannot be authenticated except by the fact that he was one of the teachers of al-Saduq. Similarly, Ishaq ibn Ya’qub is unknown and his authentication depends on his being a teacher of al-Kulanyi.

The narration is relevant in two ways. The first is from the aspect of the Imam’s words ‘as for the upcoming affairs…’ while the second is from the aspect of the causality in the Imam’s words ‘they are my proof against you and I am God’s proof against them’.

In order to make the indication of the narration clearer, we say the following:

1-What is meant by upcoming affairs is not the ruling regarding the events, but the affairs themselves. Sheikh al-Al-Ansari, while explaining this narration’s indication of the guardianship of the jurist, said in his book ‘al-Makaseb’: ‘the apparent meaning of ‘upcoming affairs’ is all affairs about which one- according to custom, intellect or legislation- must refer to the leader about, such as ruling with regards to the wealth of those who are unable to do so themselves because of absence, death, young age or foolishness.

Specifying it to the jurisprudential issues is far-fetched for a number of reasons…’ He then mentions three reasons and says: ‘the result is that the apparent meaning is that the expression ‘upcoming affairs’ is not specific to that whose ruling is doubtful nor is it specific to the legal disputes’ 36

Therefore, the unconditional command to resort to the narrators necessitates resorting to them when it comes to narrations, rulings, solving of conflicts and legal disputes, just as it necessitates resorting to them when it comes to the implementation of jurisprudential rulings as well executing them and operating the guardianship depending on the needs and situations.

2-Obviously, what is meant by ‘the narrators of our narrations’ is not mere narrators of the expressions of their narrations without any understanding or expertise. The Imam (atfs) did not order his companions to resort to the narrations but to the narrators and said ‘they are my proof’ and did not say ‘their narrations are my proof’. It is certain then that what is meant by this is the jurists whose knowledge is based on the narrations of the holy progeny (as).

3-The Imam (atfs) compared the narrators being a proof to himself being a proof. This comparison apparently indicates that the two expressions are identical in terms of concept and application.  Indisputably we believe that the infallible Imam is a proof against us in that he has guardianship over the community in all its forms, including issuing edicts (if the expression is correct), passing judgment, and putting into practice the authority of guardianship and it is not permissible to go against him, and so the same would apply to the qualified jurist.

One may argue that the unconditional expression is arguable because it seems, when one looks at the holy letter, that the original letter of Ishaq ibn Ya’qub had in it a number of questions which were known to the asker, and in each of the Imam’s answers he refers to these questions in the answer. Therefore, perhaps what is meant by ‘the’ in ‘the upcoming affairs’ is a reference to the events mentioned in the question asked by Ishaq ibn Ya’qub in his original letter.

The answer to this argument would be: the generality of the causality at the end of the Imam’s answer necessitates that the narrators are a proof in all affairs.

- 1. Refer to the commentary on al-Makaseb by al-Muhaqqiq al-Khurasani, p. 93

- 2. Refer to ‘al-Tanqeeh’, which is Sayyed Khui’s commentary on al-Makaseb, v.2 p. 156-176

- 3. Refer to ayah 3:103

- 4. Refer to ayah 3: 104

- 5. Refer to ayah 4:59

- 6. Nahjul Balagha, sermon 3.

- 7. Nahjul Balagha, sermon 173.

- 8. Biharul Anwar, 44:377.

- 9. al-Kafi, 1:276.

- 10. Shura: 23.

- 11. Ahzab:33.

- 12. A real limitation is when the examples are exclusively limited to specific people as an ‘external proposition’, i.e. that concept has no any other examples such as the Word of the Exalted: “Zakaat is only for the poor,...” (9:60). In this Ayah the eligible recipients of Zakaat are exclusively eight groups of people. Whereas a relative limitation is a concept that in a specific time has specific examples as a ‘real proposition’ such as when you say: ‘Zaid is the most learned person’ by which you mean in his time and place not at all times and places.

- 13. al-Kafi, 1:85

- 14. Refer to ayah 4:58

- 15. Nahjul Balagha, Letter no. 5

- 16. al-Kafi, 1:67

- 17. al-Tahtheeb, 6:303

- 18. Wasailul Shi’a, 27:17

- 19. Nahjul Balagha, sermon 192

- 20. Bihraul Anwar, 52:372

- 21. al-Tanqeeh, 2:169

- 22. Refer to ayah 4:35

- 23. al-Kafi, 1:34

- 24. Nahjul Balagha, wisdom no. 96

- 25. Biharul Anwar, 2:22

- 26. Refer to ayah 57:25

- 27. al-Kafi, 1:38

- 28. Uddatul Usool: 61

- 29. al-Bay’ 2:632-633

- 30. Nahjul Balagha, Sermon 3

- 31. Note the humbleness of the Imam (as) in preferring a cheaper transport for himself.

- 32. al-Kafi, 2:242-243

- 33. al-Kafi, 1:46

- 34. Tuhaful Uqool: 172, sermon 131 in Nahjul Balagah is similar to this

- 35. Kamalul Deen, 2:483

- 36. al-Makaseb

Frequently Asked Questions and their Answers

1) What is meant by the Qualified Jurist?

The jurist who has general guardianship must meet all of the eight following conditions:

a) Islam (being a Muslim) and Imaan (Faith)

Allah, the Exalted, has said:

“and Allah will by no means give the unbelievers a way (to triumph) against the believers” 1 .

b) Intelligence and wisdom

Allah, the Exalted, has said:

“ And do not give away your property which Allah has made for you a (means of) support to the weak of understanding ” 2 ,

and it is narrated in Nahjul Balagha: “however, I fear that the affairs of this nation will be taken up by the foolish and sinful from among it. They would establish a monopoly over the wealth of Allah and will degrade the slaves of Allah. They will fight the righteous and take the sinful as allies”3. Therefore, the guardian jurist must be wise- the antonym of foolish- as well as intelligent.

c) Justice

Allah, the Exalted, has said:

“And when his Lord tried Ibrahim with certain words, he fulfilled them. He said: Surely I will make you an Imam of men. Ibrahim said: And of my offspring? My covenant does not include the unjust, said He.” 4

He, the Exalted, also says:

“and do not obey the bidding of the extravagant, Who make mischief in the land and do not act aright” 5 .

Al-Kulayni narrated with his chain from Hanan from his father from Abu Ja’far (Imam al-Baqir as): “the Messenger of Allah (pbuh) said: ‘leadership only befits a man who has the following three qualities: strong piety (wara’) which hinders him from disobedience of Allah, forbearance which control his anger, and good treatment of those who he has authority over so that he may be like a merciful father to them’”, and in another narration: “so that he may be for the flock like a merciful father” 6

d) Knowledge and Expertise in the laws of Islam to the Level of Ijtihad (the ability to deduce Islamic laws from the legislative evidence)

Allah, the Exalted, has said:

“Is He then Who guides to the truth more worthy to be followed, or he who himself does not go aright unless he is guided? What then is the matter with you; how do you judge?” 7

He, the Exalted, also says:

“ He said: Surely Allah has chosen him in preference to you, and He has increased him abundantly in knowledge and physique… ” 8 .

It is also narrated in Nahjul Balagha: “…and not the ignorant who would misguide them by his ignorance” 9

e) Strength and Good Leadership

What is meant by this is the political sense and knowledge of the art of politics and awareness of the conditions of the time, as well as bravery, strength of will, absence of disability, and the ability to rule. In general, any quality which is needed for the proper management of the community is part of this condition. The intellect indicates this, as does the following Qur’anic ayah speaking in the tongue of Prophet Yusuf (as):

“He said: Place me (in authority) over the treasures of the land, surely I am a good keeper, knowing well” 10 .

Al-Kulayni has also narrated from Imam al-Ridha (as): “and the Imam is a scholar who is not ignorant, and a shepherd who does not shrink from his task or become cowardly…mature in his knowledge, complete in his forbearance, strong in his leadership, knowledgeable of governance, one whom it is obligatory to obey, appointed by the command of Allah, an advisor to the slaves of Allah, a protector of the religion of Allah”11.

It is also narrated from Mufaddhal ibn Umar from Abu Abdullah (Imam al-Sadiq as): “O Mufadhdhal…and knowledge of his era, not overwhelmed by doubts.” 12

It is also narrated in Amali of al-Tusi, through his chain of narration from Abu Tharr that the Prophet (pbuh) said: “O Abu Tharr, I love for you what I love for myself, I see you are weak so you should not be made a leader over two nor should you be given authority over the wealth of an orphan”13. This indicates that weakness in management does not mean any slander of his other virtues.

f) Turning away from the Love of this World

The Commander of the Faithful (as) said: “You certainly know that he who is in charge of honour, life, war booty, (enforcement of) legal commandments and the leadership of the Muslims should not be a miser as his greed would aim at their wealth...nor should he accept a bribe while taking decisions, as he would forfeit (others’) rights...”14.

He (as) also said: “No one can establish the rule of Allah, the Glorified, except he who does not relent, who does not behave like wrong-doers and who does not chase after objects of greed”15.

The real guardian is he who does not relent to anyone by taking bribes or because of friendship or because that person is strong or for other reasons, nor does he become a captive or false imitations nor feels greed for what people possess.

In the exegesis related to Imam al-Askari (as): “whoever from among the jurists protects himself, maintains his religion, goes against his desires and obeys the command of his Master, then the general public must obey him. These are only some of the Shi’a jurists not all of them.” 16 If the one who follows desires and who chases after this world cannot be followed when it comes to his rulings, then by precedence he cannot have authority over the lives and wealth of people.

g) Masculinity

Based on the fact that judgment is one of the roles included within guardianship as was discussed, then saying that masculinity is a condition for judgment makes it a condition for guardianship by precedence.

h) Legitimate birth

It is unanimously agreed upon among our scholars that this is a condition for the judge and the issuer of edicts. The following authentic narration of Ibn Muslim from Abu Abdullah (as) indicates that it is a condition for the judge, the issuer of edicts and the guardian jurist: “the testimony of an illegitimately born person is invalid”17, as well as the narrations that indicate that this is a condition for the leader of the congregational prayer, such as the authentic narration of Abu Baseer from Abu Abdullah (as): “Five types of people should not lead the prayer in any situation and among them he counted the insane and the illegitimately born person”18

2) Is the Jurist Chosen for the position of guardianship by Appointment or by Election?

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 physique ” 19

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 judge”, 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..”, and the words of Imam al-Sadiq (as): “they should be pleased with him as a judge”.

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.”20 .

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 immediately” 21

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).

3) 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 Allah”. 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 each”22 .

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.” 23

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.

4) if the ruling of a Mujtahid goes against the ruling of the jurist guardian, which one must be followed?

The ruling of the guardian jurist is the one that should be followed in issues that relate to the management of the Muslim nation and the general affairs of the Muslims. As for issues which are purely individual, it is possible for every person to follow their own Marja’.

To be more precise, it is obligatory upon all, whether they be a lay person or a Mujtahid, to follow the rules of governance that emanate from the jurist guardian. An example of this from the narrations is the ruling of the Imam or the ruler about the visibility of the crescent moon.

In the authentic narration of Muhammad ibn Qays from Abu Ja’far (Imam al-Baqir a.s): “if two people witness in the presence of the Imam that they saw the crescent thirty days ago then the Imam should order people to break their fast” (Wasailul Shi’a) Note, that the term ‘Imam’ in these narrations means ‘ruler’ (whether an infallible one or not), as discussed in the second chapter.

5) if there are Multiple Islamic Countries, should there be one guardian jurist for all, or is it permissible for each country to have its own guardian jurist?

The textual and intellectual principles indicate by necessity that the entire Muslim community must have one leader who unites them and links them together and rules over them in issues which require general rulings. It should be such that these countries should be considered one powerful government, with one country able to help another. The presence of multiple rulers who are independent in their opinion and will in all affairs, without having one leader to unite them and judge with certainty in their disputes is a sure way to disunity and failure.

Sheikh al-Saduq has narrated from Imam al-Ridha (as): “If he says: ‘why is it not possible for there to be more than one Imam on earth simultaneously?’ It would be said: ‘for a number of reasons, among which are the following. The actions and plans of one person cannot conflict, whereas the actions and plans of two people never agree.

We never find any two people except that they have different intentions and wishes. If they were two and their intentions, wishes and plans were different, and it was obligatory to obey both, then neither would be more worthy of being obeyed than the other. This would lead to disagreement, conflict and transgression among people. No one would be in obedience of one leader without being disobedient to the other, and thus all the inhabitants of the land would be sinners…”24

This is with the assumption that this is possible. If however we assume that it is impossible to establish one Muslim nation which encompasses all Muslims, then there is no problem with establishing small countries based on the laws of Islam. This is better than ignoring the affairs of governance until the foreigners and tyrants become rulers over the Muslims and overpower them. This (i.e. the establishment of different Islamic countries) would become valid because of the principle ‘that which is possible should not be ignored because of that which is impossible’.

- 1. Refer to ayah 4:141

- 2. Refer to ayah 4:5

- 3. Nahjul Balagah, Letter 62

- 4. Refer to ayah 2:124

- 5. Refer to ayah 26:151-152

- 6. al-Kafi, 1:407

- 7. Refer to ayah 10:35

- 8. Refer to ayah 2:247

- 9. Nahjul Balagah ,Sermon 131

- 10. Refer to ayah 12:55

- 11. al-Kafi, 1:202

- 12. al-Kafi, 1:202

- 13. Behârul-Anwâr 22:406

- 14. Nahjul Balagha, sermon 131

- 15. Nahjul Balagha, wisdom no. 110.

- 16. al-Ihtijaj, 2:511.

- 17. Wasailul Shia.

- 18. Wasailul Shia.

- 19. Refer to ayah 2:247.

- 20. Nahjul Balagha, Sermon 3

- 21. al-Mofid in al-Irshad: 185

- 22. Nahjul Balagha, sermon 216

- 23. al-Ihtijaj, 2:511

- 24. Ilalul Shara’I 1:254 and Uyun Akhbaril Redha, 2:101

Removing the Confusion about some Narrations that may seem to indicate the Obligation of remaining Silent during the Era of Occultation

Al-Hurr Al-Amili narrates seventeen narrations in the thirteenth chapter of the section on Jihad in Wasailul Shi’a (the chapter dedicated to rising up militarily before the reappearance of the Awaited Imam).

These narrations may seem to indicate the obligation of remaining silent in the face of atrocities and the oppression of the enemies during the era of occultation and the impermissibility of rising up to establish a just government.

Because these narrations, in their apparent meaning, are considered to be in opposition to what we have discussed earlier, let us end the discussion on the guardianship of the jurist by discussing the most important of these narrations to remove the confusion about their meanings.

The First Narration: the Authentic Narration of Ees ibn al-Qasim

Al-Kulayni narrated with an authentic chain of narration from Ees ibn al-Qasim, who said: “I heard Abu Abdullah (as) saying: ‘Be dutiful to Allah, Who has no Partner, and look after yourselves. For by Allah, a man may have a shepherd for his sheep, but if he finds another man who is more knowledgeable of his sheep than the current shepherd he would oust the first and bring in the second who is more knowledgeable of his sheep than the first.

By Allah, if one of you had two souls, one to fight with and try, while having another soul which would remain and act according to what had become clear to it (then you could fight with the first soul). However, a person has one soul only. If it perishes then, by Allah, repentance has gone. You have more right to choose for yourselves. If one comes to you from us, then look carefully at what it is that you are coming out (to fight) for.

Do not say: ‘Zayd rose up’, for Zayd was a scholar and a truthful person and he did not call you to himself. Rather he called you to the pleasure of the progeny of the Prophet (pbuh). If he had been victorious, he would have remained loyal to that cause for which he called you to. He rose up against a united (tyrant) ruler in order to overcome him. The one from among us who rises up today, to what does he call you? To the pleasure of the Progeny of the Prophet (pbuh)?!

We make you witnesses that we will not be pleased with him. He disobeys us when there is no one with him, so he would be more likely to disobey us when the flags and banners are gathered around him. The only exception is the one around whom the descendants of Fatima unite, for by Allah, your leader is none except that person around whom they unite.

When Rajab comes, come back (to us) by the Name of Allah, and if you wish to delay (coming back to us) until Sha’ban then there would be no harm in this, and if you wish to fast (the month of Ramadhan) with your families this may be better for you. 1 Al-Sufayni will be sufficient as a sign for you.’”

The tenth narration of the same chapter is similar to this one. The eleventh and fourteenth narrations are also similar in meaning.

It is apparent from the above authentic narration that at the time of Imam al-Sadiq (as) there were a number of uprisings by the descendants of the Prophet (pbuh) which were not supported by the Imam. They made false claims and disobeyed the Imam of truth.

It is probable that the authentic narration is concerned with the uprising of Muhammad ibn Abdullah al-Mahdh, the son of Hassan al-Muthanna, who is known as ‘the Pure Soul’.

He rose up claiming to be the Mahdi. Al-Kulayni has narrated with an authentic chain from Abdul Kareem al-Hashimi: “I was sitting in the presence of Abu Abdullah (Imam al-Sadiq as) in Mecca when a number of the leaders of the Mu’tazila entered upon him. This was around the time of the killing of al-Walid...until he said: they left their affair to Amr ibn Abeed who spoke eloquently and at length.

Among that which he said was: ‘the people of Sham have killed their leader and Allah has made them fight one another and disunited them. We looked and saw a man of intellect, religion, honour and a man worthy of leadership, and that man was Muhammad ibn Abdullah ibn al-Hassan. We wished to unite around him and pay allegiance to him. We would then become victorious with him.

Anyone who follows us will be from us and we will be from him. Whoever stays away from us, we will leave him alone. Whoever stands against us, we will stand against him and fight him because of his transgression and in order to return him to truth and to those who deserve it. We wished to put this before you so that you may join us because we are not needless of the likes of you because of your status and the great number of your followers.’

When he finished, Abu Abdullah (Imam Sadiq as) said: ‘Are you all of the same opinion as Amr?’ They said: ‘yes’. He then praised Allah and sent blessings upon the Prophet (pbuh)...then he addressed Amr Ibn Abeed: ‘O Amr, fear Allah, and you all, also fear Allah. My father told me, and he was the best of the people of the earth and the most knowledgeable of the book of Allah and the Sunna of His Prophet (pbuh), that the Messenger of Allah (pbuh) said: ‘whoever strikes people with his sword and calls them to himself, while there is someone amongst the Muslims more knowledgeable than him, then he is lost and fake” 2

Therefore, the authentic narration does not indicate the lack of obligation to defend or the impermissibility of rising up in general. Rather, it indicates that the one leading the uprising may be making false claims, such as the one who falsely claims to be the Mahdi. It does not speak against an uprising where the invitation is to truth, such as in the uprising of Zayd ibn Ali ibn al-Husain. In short, the authentic narration condemns false claims, while endorsing the true claims.

The Second Narration: the (Marfu’) Narration of Hammad ibn Isa

Al-Kulayni narrated through his chain from Hammad ibn Isa from Reb’i, who related it (without a chain of intermediaries) to Ali ibn al-Husain (Zainul Abidin as): “by Allah, none of us will rise before the rising of the Qa’im (atfs) except that he would be like a young bird who flies from his nest before his wings have matured. Young boys will take such a young bird and play with him”.

A similar narration is narrated with a weak chain from Imam al-Sadiq (as) at the beginning of al-Sahifa al-Sajjadiyah.

As you can see, the chain of narration is incomplete, and this narration would not be considered authoritative except based on the principle of the ‘men of consensus’. In addition to this, the narration is not concerned with setting a legislative ruling and is not saying whether rising against falsehood is permissible or not. If it was saying that rising against tyranny was impermissible, then the Imam (as) would be faulting the uprising of his father Imam al-Husain (as)! Rather, the narration is predicting the future.

What may be meant by the Imam’s words ‘from us’- assuming that the narration was in fact narrated from him- is specifically the twelve Imams (as), meaning that whichever of the Imams rises before the Qa’im would not be victorious because the circumstances would not be suitable.

We also say that knowing that one will not be victorious does not remove the apparent responsibility to rise up if the conditions for an uprising apparently exist. Al-Majlisi has narrated from al-Khara’ij wal Jara’ih of al-Rawandi (a 6th century scholar) who narrated from Mina: “Ali (as) heard a clamour amongst his army, so he asked: ‘what is this?’ They said:’ Mu’awiyah died’.

He (as) said: ‘no he has not, by the one in whose Hands is my soul, he will not die until this community all supports him.’ They said: ‘so why are you fighting him?’ He (as) said: ‘I want an excuse between myself and Allah, the Exalted’3 . The uprising of the Master of the Martyrs (Imam Husain a.s) was for a similar reason.

The Third Narration: The Narration of Sadeer

Al-Kulanyi narrated with an authentic chain from Sadeer: “Abu Abdullah (Imam al-Sadiq as) said: ‘O Sadeer, remain at home, and be like a cushion therein, and stay there as long as there is day and night. If you hear news that al-Sufyani has risen up, then come to us even if it is on foot’”.
The sixteenth narration of the chapter is similar to this one, in which Imam al-Baqir (as) says to Jabir: “stay on the land and do not move a hand or a foot until you see the signs which I will mention to you. But I see that you will not be present for these signs: ‘disagreement among the sons of so-and-so, and a caller who calls out from the heavens...”

As for the chain of the narration, there is no way of authenticating Sadeer except based on the principle that all of the narrators of Kamilul Ziyarat are trustworthy. As for its indicating the claim, this is disputable because what is apparent from these narrations is that they are giving specific advice to individuals.

If one studies the biography of Sadeer, it becomes apparent that he was one whose emotions would overcome his better judgment. This is why he was taken prisoner for a period of time. He was waiting for the Imam (as) to rise and was insisting on this 4. The Imam (as) wanted to clarify to him that he was not the one who would be successful in taking over the apparent Caliphate.

The evidence that Sadeer was among those would not judge the situation well is the eighth narration of the chapter which is narrated by the author of al-Wasail from al-Kulayni with his chain to al-Mu’alla ibn Khunays: “I took the letter of Abdul Salam ibn Nu’aym and Sadeer and the letters of many others to Abu Abdullah (as) when the Black Army 5 were victorious and before the Abbasids were victorious. The letters said that ‘we are able to transfer this affair to you, what do you think of this?’ He (as) threw the letters to the floor and said: ‘Uf! Uf! I am not an Imam for these people. Do they not know that it is when al-Sufyani is killed?’” Similar to this narration is the fifth narration of the chapter.

The Fifth Narration: the authentic narration of Abu Baseer

This is the sixth narration of the chapter in Wasailul Shi’a.

Al-Hurr al-Amili narrated from al-Kulayni through his authentic chain of narration from Abu Baseer from Abu Abdullah (Imam al-Sadiq as): “any banner which is raised before the uprising of the Qa’im, its owner is a tyrant who is worshipped besides Allah, the Glorious, the Exalted.”

This authentic narration is among the most important narrations which are used as evidence for the claim that it is obligatory to remain silent during the era of occultation. The proponents of this view claim that the apparent meaning of the narration is that the criterion for an uprising being invalid is not its goal, but the time in which it occurs.

Thus they claim that any uprising that occurs before the uprising of the Qa’im (atfs) is invalid and that its leader is a tyrant. The evidence for this rule being general is the Imam’s expression: ‘any banner’ which indicates a totally inclusive generality.

In answer to this claim we say the following: it is a strong probability that this proposition is external and that what is meant by banner in the narration is the banner of falsehood which is raised in a path different to that of the Qa’im (atfs), and that it does not include those banners which are raised in his way and path. This probability is supported by the following:

1-the Imam’s (as) expression in the narration: ‘its owner is a tyrant, who is worshipped besides Allah...’

2-the words of Imam al-Baqir (as) in another narration: “Until al-Dajjal appears, no one will call to people unless he will find those who pay allegiance to him. Whoever raises a banner of misguidance, then is owner is a tyrant” 6

3-The apparent meaning of this narration seems to oppose the authentic narration of Ees (the first narration mentioned in this chapter) and other narrations which praise the uprising of Zayd and similar people whose claim was to truth, among which was perhaps the uprising of al-Husain ibn Ali, the martyr of Fakh. It also seems to oppose other narrations which honour those who prepare the way for the Mahdi. (atfs) 7

4-In fact, if the narration is understood in its apparent meaning, it must be rejected because it goes against the definite evidence we have about both Jihad and the obligation of enjoining good and forbidding evil. How can remaining silent be obligatory, when rising to defend Islam and Muslims is among the most important obligations which the Holy Book, the honourable Sunna and the sound intellect all indicate.

Conclusions

From all that we have said, we can reach a number of conclusions:

-the first: these narrations, in addition to the weakness of some of their chains of narration, and the fact that they do not indicate the claim in question, cannot stand against the definite evidence which rules that both Jihad and the enjoining of good and forbidding of evil are obligatory, as well as the definite evidence that indicates that establishing the laws of Islam and defending the Muslim lands and affairs as much as is possible is also obligatory.

Allah, the Exalted, has said:

“ And what reason have you that you should not fight in the way of Allah and of the weak among the men and the women and the children, (of) those who say: Our Lord! cause us to go forth from this town, whose people are oppressors, and give us from Thee a guardian and give us from Thee a helper.” 8 .

He, the Glorified, has also said:

“And had there not been Allah's repelling some people by others, certainly there would have been pulled down cloisters and churches and synagogues and mosques in which Allah's name is much remembered; and surely Allah will help him who helps His cause; most surely Allah is Strong, Mighty.” 9

Yes, it is obligatory to prepare the appropriate power and means for an uprising. Otherwise, would an intelligent person be satisfied with leaving the enemies to take control of his people, invade their lands, spill their blood and destroy their countries while he remains in his house and does nothing but remain silent and submissive before all this?

The only one who may do this is an advisor to the tyrant rulers and the scholars of evil who have bought misguidance in exchange for guidance, and the American dollar in exchange for the benefits of the Muslim community.

-the second: these narrations are external propositions and not real propositions. This is supported by the fact that the vast majority are narrated from Imam al-Sadiq (as) during the time of the fall of the Umayyads and the great number of uprisings.

-the third: it is probable that some of these narrations are a fabrication by the tyrant rulers in order to turn the Shi’a away from the idea of an uprising against their oppressors, similar to what is happening in our time about the distortion of the meaning of ‘Jihad’ and its false interpretation as meaning only the struggle against one’s self.

-the fourth: some of the narrations are specific to those who raise banners of falsehood, who were calling people to themselves. This was leading to an unnecessary loss in Muslim lives.

-the fifth: some are concerned with a specific person or specific situation, where the conditions and prerequisites for an uprising were not present.

-the sixth: some were said out of dissimulation before tyrant rulers. Perhaps the narration of al-Mu’alla ibn al-Khunays, which is mentioned after the fifth narration, is among these.

-the seventh: some were not concerned with setting a legislative rule but were making a prediction about the future only.

Our last call is Praise to Allah, the Lord of the Worlds.

Mansour Leghaei
sheikh@ihic.org.au [14]
Imam Husain Islamic Centre
Sydney, Australia
8th Rabiul Thani 1430 AH

- 1. It is obvious that the holy Imam (as) is trying to buy time and keep his followers out of trouble

- 2. al-Kafi, 5:23

- 3. Biharul Anwar, 41: 298

- 4. In the fourth chapter, at the end of the fourth narration, we have mentioned the conversation between him and Imam al-Sadiq (as), so refer to this

- 5. The black army were the followers of Abu Muslim al-Khurasani. They were called this because their attire and banners were black. At the beginning, Abu Muslim was sent to Khurasan by Ibrahim al-Abbasi. When he died, Abu Muslim began to call to his brother, al-Saffah. In the end, al-Mansur al-Abbasi became jealous of him and killed him.

- 6. al-Kafi, 8:29

- 7. al-Kafi, 8:296

- 8. Refer to ayah 4:75

- 9. Refer to ayah 22:40

Topic Tags:

- Guardianship [6]

- Jurist [7]

- Wilayah [8]

Author(s):

- Mansour Leghaei [2]

Person Tags:

- Sayyid Ruhullah Musawi Khomeini [9]

Source URL: https://al-islam.org/short-treatise-guardianship-jurist-mansour-leghaei

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