A Shift in Shia Political Fiqh?

 

A Comparison between Individual-centered and Institution-centered Theories

 

First Draft, Due to Revision and Change

 

Seyed Sadegh Haghighat[1]

 

Is there any (paradigm) shift from individual-centered to institution-centered theories in Shiite political fiqh (jurisprudence)? Modern politics, according to Karl R. Popper, answer the question of "how can we govern?", while the classic one was to respond to "who governs?" Political Shiite fiqh, including Imam Khomeini in his early theory of velayat-e-faqih and early Montazeri,[2] tries to demonstrate that the Islamic government should be ruled by a great Ayatollah, named velayat-e-faqih. However, It seems that Imam Khomeini in his late theory on “the expediency of government”, M. Motahhari in his theory on “the supervision of velayat-e-faqih” and later Montazeri in his recent book, HDHE (The Religious Government and Human Rights),[3] have tried to substitute institution instead of Individual.

 

 

Individual-centered Theories

Most theories in Islamic political fiqh are individual-centered and answer the question of “who governs?” It is because they are based on the pre-modern principles, whether they are proposed in the modern or pre-modern era.

There are many ideas about the extent of velayat in faqihs’ ideas during the Islamic history. While most faqihs believe in confined and narrow velayat, i.e. fatwa and jurisdiction, some others accept Islamic government or absolute velayat as true. According to Sheikh Mofid (333-413 H), implementation of Hodood (fixed penalties) is to Imam (p.b.u.h) or to faqihs in the absence of the hidden Imam.[4] Mohaqeq Karaki (death 940 H) views faqihs velayat like Imams in issues that succession plays a role in it.[5] Ahmad Naraqi (death 1245 H) is in the group that trust in velayat in what Imam (p.b.u.h) has velayat unquestionably with some exceptions.[6] They refer to hadiths (traditions) which denotes that faqihs are appointed by the innocent Imam(s) for special extent of velayat. Regardless the extent of velayat, all faqihs’ theories before Imam Khomeini’s velayat-e-faqih are considered as individual-centered, since all of them answer the question of “who”.

 

 

Expediency of Government

According to Imam Khomeini, “what is said that the authority of Government is confined by divine injunctions is against what I have meant. Government is a branch of the prophet’s velayat, and it is prior to other primary and secondary injunctions like prayers, fasting and hajj”.[7] It is for the first time that a Shiite faqih is talking of the expediency of government. According to Imam Khomeini, it seems, the Islamic government as an institution has the authority to act according to expediency. Not speaking of the power of an individual, he considers an independent existence for government. Then he can talk about the expediency of government. It can be a turning point in Shiite political fiqh in which government, as an institution, is regarded autonomously. In fact, Imam Khomeini’s point of view was a criticism on traditional jurists who consider the authority of faqih (not the government) within the divine injunctions. Considering the role of time and space, he himself viewed “government” as a key term to solve the internal and external problems. 

Absolute velayat of faqih elaborated for the first time by Imam Khomeini does not imply absolutism or despotism as in political science. Rather, it means the authority of government beyond the primary and secondary injunctions. Indeed, there is a deep tie between the two concepts of “absolute velayat” and “expediency of government”. “Absolute” power, here, denotes vast authority of the Islamic government based on expediency and beyond the primary and secondary injunctions.

Speaking of the expediency of government in political fiqh, Imam Khomeini crossed the threshold of political philosophy. In reality, he needed a philosophical theory about the nature and the authority of government to support his innovative idea. This is what I call “the confluence” of political fiqh and political philosophy.

 

 

Theory of Nezarat (Supervision)

The difference between velayat and nezarat is that “velayat” entails authority and right to power, while “supervision” means overseeing and watching. In other words, velayat implies that every power and execution should be legitimized by faqih’s authority, while according to nezarat (theory), people has the authority to act, and faqihs oversee what they do. It goes without saying that supervision may be with somehow guarantee.

According to some scholars, like M. Kadivar, Mortaza Motahhari believed in the theory of elective velayat vs. the theory of appointive one.[8] Based on the latter theory, as in Imam Khomeini’s, all faqihs are appointed to govern, however, one of them can get the power and others have to follow him. Those who believe in the theory of elective velayat, including the early Montazeri, Allah has specified the characteristics of the ruler, and it is the duty of people who elect a qualified person. In my point of view, few texts of Motahhari which we have in hand indicates the theory of nezarat (supervision), not the theory of elective velayat. In his book, On the Islamic Revolution, there are a couple of evidences to prove this claim: first, he says “velayat-e-faqih does not mean he is the head of state, rather his role is like an ideologist, not a ruler”.[9] Secondly, he refers his audience to the Constitutional Revolution of 1905. He says no one at that time considered faqih as a ruler.[10] It goes without saying that, according to that constitution, the five faqihs were do to supervise. Imam Khomeini himself refers to the constitution of 1905 in Kash al-asrar too. And lastly, he himself stipulated and emphasized on the very term of “nezarat”: “The ideologist task is to supervise and to watch the executive strategy. He examines and reviews the competency of the Islamic ruler”.[11] So he is not the ruler himself, rather he considers his merits.

While the theory of velayat, whether the elective or the appointive one, is individual-centered, the theory of supervision is institution-centered. Facing the question of “who governs?”, the first theory answers faqih, while the second theory concentrates on how the institutions work out rather than who governs. Nevertheless, there is no rigid border between the two approaches.

 

 

From Velayat to Nezarat (Supervision)

Criticizing the theory of appointive velayat, Hossein Ali Montazeri innovated the theory of elective velayat in DVAFA. According to him, no one is appointed to rule in the absence of the hidden Imam. Rather, people are to elect a qualified individual. Accordingly, faqih will have the authority of velayat to govern.

In his new book, HDHE, has revised his first theory in DVAFA (i.e. elective velayat). According to his new book, faqih has no authority in the executive, however, the Islamic laws should be under his supervision. If we call the first idea as "The Theory of Velayat", we can call the second one as "The Theory of Nezarat (supervision)". While the first theory (like the classic politics) answers the question of "who", the second theory (like the modern politics) responds the question of "how". The difference between Motahhari and Montazeri is that Motahhari believed in supervision theory, while Montazeri has passed a long way from velayat to nezarat. There are at least six differences between the two books which show his revision:

 

1- Velayat vs. Nezarat: definition and nature: As mentioned before, the definition and the nature of velayat differs from nezarat, since the first implies legitimacy and authority to rule, while the second connotes overseeing and watching. The nature of velayat of faqih is like velayat of the prophet (p.b.u.h.), however, they differs in the degree.[12] Based on the theory of elective velayat, “Biat” (allegiance to the ruler) can confine the time of ruling (e.g. for ten years), but faqih is the one who legitimizes the power in every sphere, and he is the one who controls the executive, the judiciary, and the legislature. On the contrary, in his new book, he stipulates that faqih has no authority in the executive,[13] and the unique parameter is to act according Sharia.[14]

 

2- Limitations of Velayat: The theory of elective velayat considers more limited sovereignty for faqih, since it can be confined by the conditions regarded in “Biat” (allegiance to the ruler), nonetheless, faqih’s velayat according to later Montazeri (in HDHE) is narrower than the early one (in DVAFA). He elaborates faqih’s duty in his first theory (in DVAFA) as “protecting of religion and management of this day”,[15] and emphasizes that it is not like the U.K. Queen’s supervision and overseeing.[16] Conversely, according to his new book (HDHE), it is not proved that faqih has any authority in the executive.[17] Rather, he oversees the execution of Sharia.

 

3-Conditions of the Islamic ruler: Conditions of the Islamic ruler differs in the early and the later Montazeri. The conditions in the first theory (DVAFA) are: reason, Islam and Shiism, justice, management, man, of noble birth, generosity, and finally fiqh (and ijtihad).[18] It should be noted that mere ijtihad is not enough, the condition is to be the most learned person in fiqh (A’lam).[19] However, the latter condition in HDHE is just for fatwa, not for in ruling.[20]

 

4- Number of ruler(s): Based on the theory of elective velayat, just one faqih has the authority to rule,[21] and the Islamic state could not be governed by the council of faqihs.[22] Comparatively, in the theory of supervision, one faqih or a group of faqihs oversees the implementation of Sharia.[23]

 

5- Legitimacy of Velayat-e-faqih: Legitimacy in the elective theory is divine-democratic, since Allah specifies the characteristics of ruler and people elect him.[24] However, legitimacy in theory of supervision, as mentioned before, originates from people only.

 

6- Structure of the Islamic Government: In the theory of velayat, the executive, the judiciary and the legislature work under the control of the Islamic ruler, as in the constitution of the Islamic Republic of Iran. Faqih, as the Islamic ruler, is at the top of the pyramid of power.[25] But in the theory of Nezara, supervision, they are independent, and there is no unique model for the structure of government.[26] Faqih has no authority in the executive.[27]

 

 

Conclusion

In sum, although the (paradigm) shift has not happened in Shiite political fiqh comprehensively yet, there are a lot of signs to show somehow shift from individual-centered to institution-centered theories:

- expediency of government, according to Imam Khomeini, concentrates on the institution of government,

- Motahari’s theory of supervision could be another evidence for somehow tendency to institution-centered theories in Shiite fiqh,

- differences between the early Montazeri (in DVAFA) and later Montazeri (in HDHE) demonstrate a clear shift from velayat to nezarat (supervision). Those differences include: the limitation of velayat, the conditions of the Islamic ruler, the number of ruler(s), the legitimacy of velayat-e-faqih, the structure of the Islamic government.