Role of the people for electing a wali-e faqih
It is occasionally said that wilayat al-faqih is one of the insolvable problems of the Islamic Republic since its existence necessitates its non-existence! In the other words, if wilayat al-faqih exists, then wilayat al-faqih does not exist, and vice-versa. Because from one hand in the Islamic Republic, the people have elected, directly or indirectly, a person as their leader, therefore, the people have vote, and subsequently they are not interdicted and do not need a guardian (wali). From the other hand if the jurisprudent (faqih) is the guardian/ trustee (wali) of the people, so the people do not have vote. That is why no one noticed this insolvable problem that is reconciling the wilayat al-faqih with people's vote and acceptance. Because the people have voted not to have vote!This doubt originates from the point that they have restricted the wilayah
in that of the part "interdiction", while if wilayah is defined as the supervision/trusteeship upon the elite, the wise and the men possessed of minds like what is dealt with in the verse "Verily, your guardian is (none else but) Allah and His Apostle (Muhammad) and those who believe, - those who establish prayer and pay the poor-rate, while they be (even) bowing down (in prayer)." (Quran: V, 57) and also the Event of Ghadir and the holy verse "The Prophet (Muhammad) hath a greater claim on the believers that they have on their own selves " (Quran: XXXIII, 6), then the above doubt will be solved. Was the wilayah of Imam Ali (the Commander of the Faithful) in the Event of Ghadir as the guardianship upon the interdicted or it was as trusteeship upon the men of understanding (ulul albab)?
Waali does not mean the guardian of the interdicted; rather it means the trustee (supervisor/ administrator) concerning the affairs of the elite of the society.
Such a wali or ruler/governor is either completely well known for the people, or not in case he is not well known the people refer to the experts and ask them for information in this regard.
Like when the Holy Prophet asked first for the approval (and acknowledgement) of the audience (in Ghadir Event) saying: "Have I communicated you what (the mission) I was responsible for and I should communicate you or not?" -"Yes", the audience replied. Then the Holy Prophet asked: "Do you approve that I have a greater claim on you than you have on yourselves?" (See: Al-Kafi, the Book of the Divine Proof [Kitab al-Hujjah]) "Yes", they replied. Then the Holy Prophet said: " For whomever I am the authority and guide Ali is also his guide and authority." And the people accepted.
Can we declare that this is a fact that the existence of which necessitates its non-existence and vice-versa?
(It is true that) if the meaning of wilayah is restricted in the guardianship upon the mad persons (for instance), then the wilayah may not be compatible with the people's vote, because the wilayah of the wali is proved by the vote of the interdicted, while the interdicted person has not vote!
The Prophet himself propounded the Islamic republic and holding a referendum and said that the regime should be Islamic, it is based on the revelation. It must be democratic. It is based on the acceptance of the people. He said that he has been living for forty years among the community and has taken his (social) examinations successfully.
"I lived among you an edge before it; What! Then (yet) ye understand not?" (Quran: X, 16)
After taking a lifetime examination, aren't you wise enough to understand? If not, then accept my demonstration since I am your trustee.
This statement of the Holy Prophet that is "I lived among you an edge before it;" is the republic aspect of the Islamic regime; it means that you accept the fact that all the affairs have been provided from Allah's side: The revelation has sent down, my position has been determined, the prophetic mission, the prophethood, the wilayah and the trusteeship have been provided all, what remained is your acceptance and act accordingly. Then added: "Demonstrate, this is my miracle." ...
Such a thing contains no paradox within itself. In the other words, what is relevant to the law and the commentators of it - that is the Ahl al-Bayt themselves- and what is defined as the explainer and teacher of the Book and Wisdom and the purifier of the souls and what is as the executer of the punishment laws, all have been provided within this religion. Only the acceptance of the people has remained. This acceptance is related to as to be the wali of the people and not the client/lawyer of them. Never there will be contradiction/contradiction with the acceptance of the people. All the posts are approved for the Infallible but to take affect such posts needs the people's vote. Such a commentary on the wilayah is free from the injury of dreaming the contradiction.
Alteration of the posts and the necessity to the experts
Since the true posts are perfection, therefore, the false posts are countless contrary to it. The range of it oscillates from the Lordship to the faith. Some instances are presented below so that it clears that opposite a truth there is a falsehood that claims being truth. Concerning the lordship that means that Allah is the Lord of the worlds and there is no lords but He, some attempted first to struggle/fight against the notion of lordship from its basis, but when they found out that the man is in need of the Lord at last, then they declared that yes, the man is in need of the lord, and the lord exists but it is not Allah, rather we are the lords! " And (Pharaoh) said: 'I am your Lord, the most High!'" (Quran: LXXIX: 24), " And said Pharaoh: 'O' Chiefs! I know not any Allah for you other than me,'" (Quran: XXVIII, 38). Pharaoh did not say this at first, but after refusing the notion of Lordship and not taking a good result of it declared: "I agree that the society is in need of a Lord, but the Lord is me and not whoever you claim."After the lordship, the prophethood may be dealt with. While the prophets were sent from Allah, the Exalted, the heads of oppression and blasphemy fought against the notion of prophecy and prophetic mission, but since they did not get a good result, reacted that the prophethood is true. It is true that certain individuals (prophets) are appointed by God and are sent from Him to guide the people, but "A" is the prophet and not "B".
In case of advent of a true prophet, many false prophets appeared in contrary.
When certain heads of the Ignorance were asked: "Why didn't you believe in the Prophet in spite of all his miracles, but you have approved the statements of Musaylimah, the liar instead?"
"Because he is a member of our tribe", they replied.
Caliphate and Imamate were the same as this. At first they said that the Prophet has not appointed anybody as his successor, a guardian and a leader for the community. Then they concluded that it was impossible that the Prophet has declared everything (of lesser importance) but has neglected the most important part of the religion that is, the leadership. Then they claimed and quoted plenty of the virtues for the others and announced (publicized) false and faked hadiths concerning the caliphate of some of them.
At the next step the clergymen and the scholars were dealt with. The oppressor countries struggled with the scholars and the religious intellects, but when they realized their popularity in the society and that the clergy is a genuine and popular institution, then they established court clergymen to issue verdict to satisfy their wills.
In the fifth phase we confront the populace and observe the process of faith among them. The hypocrites fought the faith as far as possible at the first step, but when they realized that the faith is a welcomed fact among the community, pretended to be faithful.
"And when they meet with those who believe, they say, "we believe" but when they go apart to their devils, they say, " surely we are with you, verily, we did but mock." (Quran, II, 14)
It has been clear so far that (in a range) from the "Lordship" to the "Faith" and from the faith to the "divinity" there always has been a false and fake process contrary to the true and genuine one.
In case the offices are being altered, and the truth and untruth are being mistaken how the people can distinguish between the truth and the falsehood (that is the true person and the false one)?
People's vote is for the very same reason that they think and select the truth, therefore, it necessitates to refer to the experts and it becomes compulsory to establish the Assembly of Experts.
The Paradox Between Wilayat al faqih and People's Election
It is said that wilayat al-faqih contradicts the ruling, democracy, liberty of the individuals, elections, and establishing the Assembly of Experts, etc. Therefore, a regime that is based on wilayat al-faqih is false, and consequently all contracts whether national or international signed with such a regime is invalid and void according to the religious rites, and thus the latter party of the contract can vindicate his/her own rights.They propound two evidences:
1. Since the term 'wilayah' means guardianship upon the interdicted, so it contradicts the people's vote, election for the Assembly of Experts and the like.
That is whether the people directly elect the jurisprudent (faqih) or empower someone to elect the guardian (wali) for them, indicates in the both cases that from the one hand the people are wise and sagacious, and have the vote, and consequently do not need a guardian, from the other hand if the jurisprudent is a guardian (wali) upon the people, then the people do not have vote.
Considering the contradiction available in the regime based on wilayat al-faqih indicates that such a regime is a paradoxical one!
2. Considering the general sense of the contracts, any kind of conditions that opposes and contradicts the text and purport of the contract, will cause the contract to be invalid and void.
The examples below may make the matter clearer:
The content of the contract is divided in four categories:
- Ownership of the essence/substance (ayn)
- Ownership of the benefit/profit (manfaah)
- Ownership of the exploitation (intifa')
- The right of receiving enjoyment (istimta)
Instances
1. Such as the (act of) purchase and sale2. Such as the contract of renting /leasing
3. Such as the contract of borrowing
4. Such as the matrimonial contract
The instance of the first kind is dealing (purchase and sale) and the compromise that has the ordinances/ injunctions of the purchase and sale. The content of such a contract is that the vendor becomes the possessor of the price, while the buyer becomes the owner of the commodity. The content of purchasing contract is the possession of the substance (ayn), while in renting; the content of the lease is the possession of the profit (manfaah) (for the lessor/landlord) and not the substance.
He, who takes a commercial unit or a residential one on lease, it denotes that the property itself is for the lessor, however, in exchange for the lease, the leaseholder becomes the owner of the profit of it.
The third kind that is the ownership of the exploitation is that when, for instance, the borrowing contract was signed, the borrower that, for instance has borrowed a vessel that is the loaner has given the borrower the loan of it.
And this contract/agreement was done either verbally or practically (muaataat) the borrower can exploit that vessel but is not the owner of its profit.
This case is different from hiring a vessel from the stores that let out vessels and kitchen utensils. For, in these cases one owns the profits of the vessels while he who borrows a vessel from his/her neighbor is the owner of the exploitation of it and not the profit of it.
In the contract of matrimony the husband possesses the right of receiving enjoyment by the marriage formula (contract) and becomes the mahram (ritually intimate) with his spouse.
The question that is raised now is that in case a forbidden condition that does not contradict the necessity of the contract whether or not invalidates the contact.
Some jurisprudents hold that the forbidden condition does not invalidate a contract, although it contradicts the Book of God, and also is invalid (fasid); but in the event that a condition contradicts the explicit text of the contract (neither opposing the general application of the contract nor its requisite) there is not controversy that such a condition is both invalid and invalidating the contract.
For instance, the two parties stipulate within the deal contact that a party sells a house to the latter party provided that the buyer does not become the owner of the house! Or on the condition that the vendor does not own the price of it!
Such a condition that contradicts the necessity of the contact is both invalid and invalidating the contract.
Another instance is that, one leases a trade or a residential unit provided that the lessee does not own its profit, and that at the same time the landlord does not possess the rent!
The third instance is that one lends a vessel on the condition that the borrower does not have the authority of exploitation.
The fourth instance is that the contract of matrimony is arranged is such a way that it is conditioned within it that the spouses do not become ritually intimate (mahram) with one another.
All of the above conditions contradict the necessity of the contract and consequently are invalid and they invalidate the contract.
Some (of the jurisprudents say that) the issue of wilayat al-Faqih is same as these cases, that is, the people sign a contract (election) with the fully qualified jurisprudent and undertake mutually and vote that they do not possess the vote and will not interfere the contracts. For, the meaning of the wilayah is that all the authority is in the hands of the wali-e faqih, and the people are under the guardianship, are interdicted, and have not the authority to comment.
And they conclude that these kinds of referendums and elections are invalid and necessarily invalidating, for, they contradict the content of the contract and the mutual undertaking, and consequently, the referendums held so far are invalid and invalidating, and the government in which they resulted in are invalid. And also, all kinds of the deals whether local or international are invalid.
The Answer
It is true that a condition that contradicts the necessity of the contract/pact is invalid (fasid) and corrupter (mufsid), but two points should not be neglected: First, the term wilayah having the meaning of supervision and being a wali is separated from the wilayah discussed under the topic of interdiction (hajr) in the Islamic jurisprudence.If one speaks about the issues of the Islamic government, the Islamic policy, and the trusteeship of the jurisprudent (wilayat al-faqih), he should totally dispense with the wilayah (guardianship) upon the immature, the dead, and so on and should just think of the verse (Quran: V, 57).
Whatever this holy verse carries as a message, it is true first for the prophets, then the Infallible Imams, and then their special deputies, such as Muslim ibn Aqil and Malik Ashtar, and then for those who are appointed generally by them, like the late Imam Khomeini.
Secondly, both the opponents and pro-wilayat al-faqih have accepted two instances of wilayah of the fully qualified jurisconslut.
The first instance is that when the people accept an authority (that is a leading jurisprudent), do they select him as their attorney (wakil) or as wali in fatwa?
Indeed, the religion has appointed the fully qualified jurisprudent for this position, whether the people refer to him or not, but to put this appointment in practice depends upon the acceptance of the people.
Many a time a fully qualified jurisprudent that can be a leading faqih (jurisprudent), but since he has not made himself known, or the people do not know him by one reason or another, therefore, his authorization will not be put into practice, at the same time another faqih having the same scientific conditions my be welcomed and accepted by the people.
Now the question is that such a person that is recognized as the authority, whether is the attorney of the people, or he has been appointed this position by God, but since the people have found such a merit and quality in him so, they have referred to him. Therefore, such a person cannot be their attorney at all, for the attorney does not posses any authority, unless the people entitle it to him by establishing the contract of empowering. The approval of the power of attorney is conditioned to the establishment of empowering by the people, while concerning the approval of being an authority it is not like that the people and the followers submit him the office of being an authority.
Another instance is the judgment of the fully qualified jurisprudent during the period of occultation. It has been acclaimed by all, that the fully qualified jurisprudent has the right of judging. Is the fully qualified jurisprudent in the position of judgment the attorney of the people? Has the religion of Islam appointed him judge? [The true answer is that] he is the judge, and the people give no positions to him. If the people refer to him and accept him, then his judgment will be put into practice.
These two instances are not of the kind of the power of attorney, rather are a part of trusteeship (wilayah), that is the fully qualified jurisprudent being an authority, is the wali of decree (fatwa) and not the people's attorney (wakil) in issuing a decree (ifta) for his followers. Such an authority should be submitted obligatorily. The same is true for the fully qualified jurisprudent that is a judge, the difference is that one of them informs/advises (ikhbar) while the latter establishes (insha'); like a fully qualified jurisprudent that has occupied the position of judgment and issues decrees.
So the people refer to positions that the religion has granted/allocated to the fully qualified jurisprudent and realized them and then recognized them. If the fully qualified jurisprudent has a worldly reputation like Shaykh Ansari then there will be no need to testimony/certification of two just witnesses.
The followers can refer to him directly. In case several scholars equal from the aspect of justice, or one was more knowledgeable than the others but was not as famous as the rest, then the people consult the experts to know who is the most knowledgeable or who equal with one another. So in these cases when one refers to a scholar in fact he has recognized his authority position. It is not true that he has given that scholar the authority, therefore, that attorney of the people in giving decree or in judgment.
This acclamation of the people is not power of attorney; rather it is the acceptance of wialyah.
If, for instance, the people accept/recognize the authority of a person provided that to be silent and submissive in lieu of his jurisprudential decrees, is this condition opposing the exigency/necessity of this pact?
If some people accept the position of judgment of a fully qualified jurisprudent and declared within their acceptance that they trust (in) the judgment and the sovereignty of his juridical system, provided that they be silent and submissive against the decrees given by him, then is this condition opposing /contradicting the exigency/necessity of such a pact?
If the people selected a group as experts to introduce to them the competent leading authority, are these selections and voting contradicting the recognition /acceptance of the authority and being silent and submissive before the decrees (fatwas) of the authority?
So those who oppose the wilayat al-faqih, accept two samples of the fully qualified jurisprudent, but dispute in the third sample, that is the trusteeship (wilayah) upon the community and the policy declaring that this kind of voting to a jurisprudent is equal to lack of voting, and that this condition contradicts the necessity of the pact.
(As the answer) we say that when the fully qualified jurisprudent became (was elected/designated as) the waali of the community, and the elite wise and intellectual people acclaimed his wilayah, and declared that the (Divine) command (Quran: V, 57) is originally for the Infallible Imam, and then for his special deputy, and in the event that the special deputy was not available, then it will be for the common deputy in the third rank. The also state that they have accepted the wilayah of them (the Imam or his deputies) to act according the Book of God and the Sunnah of his Apostle. Does this indicate that whatever business/deals that jurisconslult has made, or the contracts and pacts he has established are of the interfering types and consequently invalid?!
The fact is that, the people have accepted the religion and believe that they have no votes opposite it, and since they are elite they say that they have not another statement in front of God, and they do not practice independent reasoning (ijtihad) against the clear terms (nass).
When a person accepts the religion, this acceptance is the truth. When he verified the religion and realized that it is the truth, and then accepted it, therefore, admits that the fatwas of the religion are the truth and his will does not contradict the truth, and that he does not possess any ijtihad in front of the nass.
The believers that acclaimed the wilayah of Imam Ali, the Commander of the Faithful, did they accept him as their attorney? Or they recognized him as their wali?
God, the Exalted, said to the Prophet: (O' Our Apostle Muhammad!) Deliver them what hath been sent down unto thee from thy Lord (Quran: V, 70)
He communicated the message of God to the people saying: " For whomever I am the authority and guide, Ali is also his guide and authority."
The people accepted saying: "May this position be pleasing to you O' the Commander of the Faithful!"
And gave him their allegiance. Did they designate him as their attorney, indicating that the Imam had no positions without the vote of the people?! Or did they recognize him as their wali? If one holds that Imam Ali was the attorney of the people, it means that so long as the people have not voted to him and have not recognized, he will have no rights, while, if we hold that he was appointed by God, then he has the right and authority of guardianship (and supervision), and (consequently) the people recognized this fact and accepted it.
Therefore, (it is concluded that) any kind of the contracts the Islamic waali signs or it is signed on his behalf, is in accordance with a good will of the people, for the people recognized that this school of thought is true, and voted in its favor, and appointed one who knows this school of thought well, believes in it, and is the executer of it, as the responsible of this task; indeed, they have accepted his responsibility, so, it is not the case of empowering him. Such a condition never contradicts the necessity of the contract.
It is concluded that, firstly, the power of attorney (wikalah) differs from trusteeship (wilayah); secondly, the wilayah is divided into several kinds, thirdly, the wilayah that is propounded in the issue of governing and ruling is not of the kind of wilayah discussed in the chapter of "the interdiction", rather it is of the kind discussed in the holy verse "Verily, your guardian is (none else but) Allah and " (Quran: V, 57), fourthly, both positions are true for the jurisprudent , but one is (given) originally while the other one is subordinately and as a deputy.
Therefore, if one states that the fully qualified jurisprudent is the Imam's attorney (wakil), it is true, and if he states that he (the jurisprudent) is the attorney, or the deputy of or appointed by Imam Mahdi, it is also true; but if he states that the fully qualified jurisprudent is an attorney on behalf of the people or is appointed by them, this would be a false statement.
The difference among these four matters is that, the Infallible Imam and (particularly) Imam Mahdi- may our lives be scarified for him - can do two tasks:
One option is that he appoints a person to represent him (the Imam) and to act as his attorney to do certain tasks; it means that he becomes the Imam's attorney and deputy; this is true. Another option is that he establishes the trusteeship (wilayah) for a person. For instance, in the event that there are endowed properties that are lacking of a custodian (due to his death or because a custodian has not been appointed for it so far), the Imam appoints a custodian for it. This is the establishment of trusteeship (wilayah) for him.
In case, an authority (a leading mujtahid) empowered a person or persons, once this authority dies, the power of attorney of his attorney will be nullified, for, the validity of the power of attorney is dependent upon the life of the client (i.e. the authority); while if that authority appoints a person as the custodian of a certain endowed property, the custodianship of him will endure continuously even after the death of that authority. So, to empower is different from the establishment of trusteeship.
These are two instances in which the Infallible Imam can both empower a person (i.e. as his attorney) and establish the trusteeship for a person. But the people have not the authority in neither of these tasks concerning the religious issues. It is not true that the people empower the leading authority, or establish the office of trusteeship (wilayah) for him. The people neither establish the power of attorney in the judgment for the fully qualified jurisprudent, so that he becomes their attorney to be a judge, nor they establish the office of trusteeship for judging so that he becomes the custodian of judgment, and to have the trusteeship upon judgment on behalf of the people.
Rather the offices that the religion has granted to the fully qualified jurisprudents, whether the people accept or not, that jurisprudent possesses this authority in a demonstrating manner (thuboutan), but the intellectual pious people identify the individuals that deserve such offices, then recognize and accept the office of one who is fully qualified. As it is the recognition and acceptance in the discussion of the position of an authority (marjiiyyah) and not the empowering, concerning the jurisprudent that has trusteeship upon the people, the discussion is also the recognition and acceptance and not the empowering.
In some cases the people accept the trusteeship of the Special Deputy (of the Imam), like those who accepted the wilayah of Muslim ibn Aqil and Malik ibn Ashtar. As they accept the trusteeship of the General Deputy in the other cases.
So, it is not true that trusteeship of the jurisprudent is an invalid condition and invalidates the contract so that the local and international treaties of the Islamic System to be unauthorized.
So, it has been (clearly) concluded in brief that the wilayah discussed in the Holy Quran and in the traditions in some cases denote undertaking the affairs of a dead (deceased) or he who is tantamount to him/her; and in the other cases it means the tenure of the affairs of the community.
The following contain two series of some Quranic verses for instance, concerning the two different meanings: The verses indicating the wilayah upon a dead (deceased) or he who is tantamount to him/her:
1.A. The wilayah upon a dead (deceased)
And whoever is slain unjustly, then indeed have We given his heir the authority by God that surely we will suddenly attack by night, him and his family, and then surely we would say unto his heir we witnessed not the murder of his family, (Quran: XXVII, 49)
1.B. the wilayah upon the interdicted who are tantamount to a dead
But if he who oweth be witless or infirm, or if he be not able to dictate himself then let his guardian dictate justly (Quran: II, 282)
They said: "Swear ye to one another by God that surely we will suddenly attack by bight, him and his family, and then surely we would say unto his heir we witnessed not the murder of his family, " (Quran: XXVII, 49)
The verses denoting the trusteeship (wilayah) upon the Islamic Community:
"Verily, your guardian is (none else but) Allah and His Apostle (Muhammad) and those who believe, - those who establish prayer and pay the poor-rate, while they be (even) bowing down (in prayer)." (Quran: V, 57)
"The Prophet (Muhammad) hath a greater claim on the believers that they have on their own selves " (Quran: XXXIII, 6)
Either kinds of wilayah has its respective terms and conditions (ordinances) that were discussed in this article in brief. Wilayat al-Faqih is of the second kind. Therefore, it is not at all the question of being the Islamic Community an interdicted one; and none of the ordinances of the wilayah upon the interdicted discussed in the Islamic jurisprudence including the chapters of the funerals, taking reprisals, reduction (of the punishment), pardon, blood-money, wali of the blood of the slayed (maqtoul), or the chapter of the interdiction - are applicable in this case.
