A New Interpretation of the Theory of Vilayat-i FaqihAuthor(s): Ahmad Kazemi MoussaviReviewed work(s):Source: Middle Eastern Studies, Vol. 28, No. 1 (Jan., 1992), pp. 101-107Published by: Taylor & Francis, Ltd.Stable URL: http://www.jstor.org/stable/4283479 .Accessed: 16/11/2011 02:03

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A New Interpretation of the Theory of Vilayat-i Faqih

AHMAD KAZEMI MOUSSAVI

The political theory that serves as the basis of legitimacy for the Islamic government of Iran was adumbrated in its modern form by the late Ayatollah Khomeini in his now famous lectures of 1970, and was passed into law with the ratification of the new Islamic Constitution of December 1979. There have been many attempts made since to develop or rationalize this theory along or beyond the lines laid down by the late leader of the Islamic Republic. The standard approach emphasizes the absolute authority of the just jurisprudent who holds the reins of governance as the deputy of the Hidden Imam, the chosen of God.

What is more interesting, if not surprising, is the recent appearance of a new mode of interpretation for this doctrine which lays the primary emphasis on the role of the people in conferring what amounts to a second layer of legitimacy on the incumbent of the office of governance, in addition to the authority of divine appointment. The originator of this new interpretive mode is Ni'matullah Salihi-Najafabadi, the same controversial cleric who raised a storm in Ithna'ashari academic circles with his celebrated book The Eternal Martyr. In this book, Ayatollah Salihi denies the predestined character of the Imam Husayn's martyrdom. He also raises doubts about the infallibity of the Imams. In a new book, The Trusteeship of the Jurisprudent: The Governance of the Worthy, Ayatollah Salihi presents a new context for the doctrine of vilayat-i faqih in which he regards the process of the people's acknowledgement of the supreme faqih as the main element in con- firming and validating his authority. By proposing what he calls a 'concrete' (insha'i) context for the application and implementation of the doctrine of vilayat-i faqih, Ayatollah Salihi implies that the prevailing mode of interpretation has been based on 'abstract' (khabari) or theoretical premises. In his view, that mode or approach ignores the necessary and vital role of the people in validating the faqih's authority.

A comparison of these two approaches or modes of interpretation for the doctrine of vilayat-ifaqih reveals several theoretical problems which its expositors have faced.

Middle Eastern Studies, Vol.28, No.1, January 1992, pp. 101-107 PUBLISHED BY FRANK CASS. LONDON

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JURIDICAL JUSTIFICATION

The juridical nature of the supreme faqih's authority is a matter of disagreement between the two above-mentioned modes of interpre- tation. The standard approach considers the authority of the supreme jurisprudent to be the result of divine appointment based on the reported utterances of the Imams; according to the new approach this authority derives from the fact that it is based on a contract ('aqd) between him and the majority of the population in the Muslim community.

Ayatollah Khomeini considered vilayat to be a relative concept whose juridical nature is simply 'an appointment' made by the Imams.1 One of the best-known expositors of Ayatollah Khomeini's juridical thought is Muhammad Mahdi Musavi Khalkhali, who has provided a detailed justification of the doctrine of vilayat-i faqih in his book Sovereignty in Islam. According to him the juridical vilayat is a divine appointment established by the reported utterances of the Prophet and the Imams.2 The only channel through which people can express their opinion, in his view, is the right of man to interpret and to extract rules from religious law. The notion of shura ('consultation') also covers the right of man to apply the general rules of the Shari'a in their proper contexts.3

The juridical nature of vilayat was interpreted differently by a new current amongst the Shi'i ulama who felt obliged to take into consideration popular notions circulated before and during the Islamic Revolution. This trend began some years ago with Ayatollah Salihi's sharp criticism of the traditional ulama who only took account of the abstract premises of vilayat-i faqih, while neglecting the process of the people's acknowledgement and approval of the supreme faqih as the main element confirming and validating his authority.

According to Ayatollah Salihi, the juridical nature of vilayat consists of a social contract between the people and the designated faqih. In this contract it is the people who offer him the position, and the faqih who accepts the obligation of the incumbent.4 Ayatollah Salihi's thesis on the nature of vilayat has been accepted by some prominent figures in the Shi'i clerical hierarchy. It was cited by Ayatollah Muntaziri in his lectures in Qum during the academic year 1984-85. The publication of these lectures in 1987 indicates that Ayatollah Muntaziri too considers vilayat as a contract based on the public's bay'at (oath of allegiance).5 But he does not provide a systematic and detailed discussion of Ayatollah Salihi's thesis.

In order to harmonise the role and interests of the populace with the institution of judicial authority, Ayatollah Salihi tries to bring the

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modern concepts of 'majority rule', 'social contract' and 'representation' into conformity with Islamic principles.

Majority Rule

This notion was not accepted by standard Muslim jurisprudence. In Shi'ism the only channel for adopting the principle of majority rule was the context of shuhrat, or the circulation of a tradition-report, which was applicable only in the process of reporting hadith.6

Many Muslim jurists repudiated the notion of majority rule because of several Qur'anic verses which they believed did not recognize the opinion (al-zann) of the majority of the people. It would seem that Ayatollah Salihi is the first Shi'ite jurisprudent to adopt and justify this notion by a careful interpretation of the relevant Qur'anic verses. He divides the verses into two categories. First, those which contain the phrase 'Most of the people have no knowledge' (aktharuhum la ya'lamun); these verses, according to Ayatollah Salihi, refer to transmaterial affairs and signify only that people generally do not understand and are not informed about arcane matters. Second, those with the phrase 'Most of the people lack wisdom' (aktha- ruhum la ya'qilun); these verses he claims refer to people who commit immoral and reprehensible acts. It is Ayatollah Salihi's view that neither of these two categories of Qur'anic expression suggest that the majority of people cannot understand their own problems and devise solutions.7

In addition to the above re-interpretation of Qur'anic texts, Ayatollah Salihi establishes the notion of majority rule according to the following Islamic proofs:

(1) The Qur'anic verse, which occurs at the beginning of Chapter 5 (5/1) and elsewhere, awfu bi'l-'uqud ('fulfil your obligations'). The general application of this divine ordinance includes the contract of vilayat, which must be respected. One of the parties to this contract is 'the people', which obviously cannot mean all the people numerically speaking; rather, it refers to the majority of people. The concept of the majority therefore acquires its validity from being a party to a valid contract, the vilayat.

(2) Endorsing rational practice. Islam traditionally approves of rational practice, and majority rule is a clear case in point. Ayatollah Salihi refers to a tradition of the Prophet, cited by the historian al-Ya'qubi, in which he recommends to the soldiers fighting under the leadership of Mu'ta that if he should be killed in combat, then they should choose a new leader

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from amongst themselves. This prophetic tradition endorses the principle of majority rule and is based clearly on rational practice.

Ayatollah Salihi's juridical justification of the principle of majority rule was accepted at least in part by Ayatollah Muntaziri, who endorses its legality in the absence of divine appointment (nasb).8 But again Ayatollah Muntaziri does not analyse the validity of the principle in detail, and contrary to Ayatollah Salihi, does not investigate the juristic roots of the electoral process (intikhab al-umma).

Social contract

If the juridical nature of vilayat is that of a contract, it is also by definition a social agreement, because it is society at large that offers vilayat to its chosen or designated leader. But how can this notion be squared with Islamic principles? Ayatollah Salihi holds that bay'at, especially a public bay'at, is the legal channel through which this contract is concluded. Ayatollah Salihi does not redefine bay'at, but his approach to this Islamic concept is, again, unorthodox, and especially different from the conventional Shi'ite conception of bay'at. Ayatollah Salihi considers bay'at as having the effect of investing the ruler with authority, in contradistinction to the orthodox view which restricts this effect to a purely confirmatory function.

Moreover, according to Ayatollah Salihi, bay'at brings about mutual obligations, for both leader and people.9 In the orthodox view, bay'at refers only to the obligation of people to remain loyal to their oath of allegiance.10 In this approach, the position of leader is considered to be a divine appointment which people should acknowledge and give their allegiance to. The leader, therefore, is responsible to God, not to the people. To justify his emphasis on mutual rights and bilateral obligations deriving from the bay'at, Ayatollah Salihi bases his argument again on the Qur'anic text of 'fulfill your obligations', and on a number of tradition-reports.11 He leaves no room for doubt that the authority of the leader is not established before the social contract is concluded; the elected leader must, however, possess the usual qualities required for the office, of justice, piety, sanity etc.

Representation

As a result of the recognition of the people's right to invest the leader with authority, the ruler should represent these same people. Like many

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other aspects of public administration and institutions, this elementary principle received scant attention in Islamic law. In trying to redefine the legal nature of vilayat, Ayatollah Salihi borrows the concept of delegation or 'power of attorney' (vikalat) from Muslim private law, and introduces it as a political agency from the people. According to his argument, the leader of an Islamic community is the deputy of the people, not the Imam. His textual basis for this idea is a letter from Imam Ali, recorded in Nahj al-Balagha to his agents, as follows: 'You are the treasurers of the people and the deputies of the community' (innakum khuzzan al-ra'iyya wa wukala' al-umma).

From a juridical point of view, power of attorney is revocable in Islam. Since the social contract of vilayat acquires the character of a public institution, it is not revocable in the same way as is the case in private law. Nevertheless the elected leader, according to Ayatollah Salihi, can be dismissed by the same people if he loses the qualities prescribed for an Imam in Islam.12

It is noteworthy that the dismissal of an Imam was barely discussed in Islamic law. Most Muslim jurists preferred to analyse the presumed annulment (in'izal) or automatic cancellation by God of the Imam's position because he has surrendered or lost the required qualifications.13 In Shi'ite jurisprudence the dismissal of an Imam or faqih was not discussed since both of them acquired their positions through divine dispensation (nasb), according to the standard view. The nullification of their positions, or more exactly, the cancellation of their incumbencies, was brought up in Shi'ite jurisprudence, and is reflected in the Consti- tution of the Islamic Republic (Article 111). Ayatollah Salihi interprets this article as confirming that the people - through the vehicle of the' Assembly of Experts - may dismiss the leader; and yet for others the wording of this article seems to support the more conventional view of the automatic annulment or cancellation of the tenure of a delinquent leader.

INTELLECTUAL JUSTIFICATION

The role of human intellect as a justification for the doctrine of vilayat-i faqih is also a subject on which the two modes of interpretation differ. The standard approach mentions the role of human intellect ('aql) as an additional proof for the recognition of this doctrine, but only after it has already been established by Islamic proofs (especially the tradition- reports). This approach can be found in Ahmad Naraqi's work where he quotes nineteen separate tradition-reports to support the doctrine and then adds that it is in any case self-evidently logical and rational.14

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At the very beginning of his celebrated book on Islamic government Ayatollah Khomeini also makes reference to the self-evident nature of this doctrine, but the tradition-reports remain the primary source of justification and legitimacy for it.15

Ayatollah Salihi on the other hand relies only on the human intellect and the concept of self-evidency to justify vilayat. In his view none of the reported traditions bears enough weight by itself to establish vilayat for the jurisprudent. Only the innate human intellect and conscience can demonstrate the value of vilayat for the just jurist as the worthiest elected leader. According to Ayatollah Salihi this vilayat can be acceptable for all citizens of a country, regardless of their own religious and ideological tendencies. In his view vilayat in its concrete sense is a universal principle which does not rely solely on religious tenets, even though religion, as a corroboration of 'aql, helps us to understand its nature. Ayatollah Salihi claims moreover that the problem of vilayat-i faqih is beyond the jurisdiction of religious allegiance (ta'abbud) since it is based totally on the human intellect.16

By holding reason to be the only authority in determining the validity of vilayat, Ayatollah Salihi comes very close to the principle of rationalism in its Islamic sense. In fact, he devotes an introductory chapter, under the heading of 'Rationalism' (asalat-i 'aql), to the task of smoothing the way for an understanding of his new interpretation of this doctrine. To harmonize this rationalism with Islamic principles, Ayatollah Salihi refers to Qur'anic verses (10/6 and 12/2) and to a tradition-report from Kulayni's al-Kafi in the chapter on 'aql. Never- theless, he feels obliged to add that the validity of this same rationalism is based on and derives from reason, and can only be confirmed by reported traditions.17

In a sense Ayatollah Salihi's conception of rationalism resembles that of Muslim philosophers such as Ibn Sina (d. 428 AH) who used a rational form of language in which the human intellect provides the context for religious traditions. It is hardly an accident that Ayatollah Salihi includes Ibn Sina's philosophical formulations in his juristic explanation of vilayat-i faqih. Ibn Sina has said:

The precedent-setter (or, tradition-maker, i.e. the Prophet) must introduce his successor and must oblige people to obey him. No one can succeed the Prophet without his appointment, or a consensus of experts who publicly confirm that he is brave, honest, evidently independent in decision making, an original thinker and problem solver, and the most learned in religious law. However, the people must publicly agree with this consensus.18

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This new interpretation of the doctrine of vilayat-i faqih reflects the impact and effect of the role of the people and the politics of popular mobilization during the Islamic Revolution in Iran on the juridical thought of Muslims. The analysis by which the role of the people was incorporated into the interpretation of a strictly sacred doctrine resembles the efforts of the medieval Muslim thinkers to accommodate Hellenic philosophy within the framework of Islamic faith. The human intellect and the practice of the people play a central role in validating and implementing the doctrine of vilayat-i faqih. Nonetheless, the doctrine maintains its Islamic character in spite of the fact that the new mode of interpretation ultimately involves totally different consequences. Harmonising a sacred doctrine with rationalism and the principle of 'majority rule' demands great effort from Muslim thinkers but shows that they can produce an appropriate synthesis no matter how apparently contradictory the components they work with may be.

NOTES

1. Khomeini, Ruhullah, Vilayat-i Faqih (Tehran: Amir Kabir, 1979), p.65. 2. Musavi Khalkhali, Muhammad Mahdi, Hakimiyyat dar Islam (Tehran: Afaq, 1983),

p.58. 3. Ibid., pp.455-7. 4. Salihi-Najafabadi, Ni'matullah, Vilayat-i Faqih: Hukumat-i Salihan, (Tehran: Rasa,

1984), pp.123-31. 5. Muntaziri, Husayn Ali, Dirasatfi Wilayat al-Faqih, Tehran, vol.1, pp.498, 522-32. 6. For a fair account of the conventional view on the relation of shuhrat and majority

rule, see Musavi Khalkhali, Hakimiyyat dar Islam, pp.36-44. 7. Salihi-Najafabadi, op. cit., pp.109-112. 8. Muntaziri, op. cit., pp.404-6. 9. Salihi-Najafabadi, op. cit., p.125.

10. Musavi Khalkhali, op. cit., p.546. 11. Ibid., 126-8. 12. Ibid., 134. 13. See, for example, 'Abd al-Malik al-Juwayni (Imam al-Haramayn), Giyath al-Umam,

(Qatar 1981), pp.122-7. 14. Naraqi, Ahmad, 'Awa'id al-Ayyam, (Qum, lithograph 1903), p.188. 15. Khomeini, op. cit., p.6. 16. Salihi-Najafabadi, op. cit., p.36. 17. Ibid., pp.36-8. 18. Ibid., p.58. cf., also see Ibn Sina, al-Shifa: al-llahiyyat, edited by I. Madkur, (Cairo:

1960), p.2: 451.

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