Islam, the State and Political Authority,Medieval Issues and Modern Concerns; Edited by Asma Afsaruddin, Dec, 2011

Wilayat al-faqih and Democracy

Islam, the State, and Political Authority - Edited by Asma Afsaruddin

Abstract
The concept of wilayat al-faqih as a type of Shi`ite Islamic government gained currency after the Islamic revolution in Iran, and it has now been experienced for more than a quarter of a century. A key question in contemporary Iranian politics is the compatibility of the wilayat al-faqih with democracy. This question can be answered from the perspective of political thought, or from that of political sociology in view of what has happened inIran. This essay adopts the first perspective, distinguishing three theoretical answers based on different interpretations of the concept:

The first can be considered the official view of the Islamic Republic of Iran. It is based on the opinion that the “absolute, appointive wiayat al-faqih” is the only form of Islamic government during the occultation of the infallible authorities in religion (i.e., the Imams), and is binding on the people as a religious duty. Such a government would be popular in the sense that the government is approved by the people. But the legitimacy of all decisions and acts in the public domain depends on the approval and authorization of the supreme jurist as the vali-ye amr. According to this interpretation, the wilayat al-faqih is not compatible with democracy. Limited resort to the popular vote under emergency conditions would be permissible under “necessity” (al-darurat), but democracy is per se neither desirable nor beneficial.

The second can be considered the view of the traditional Iranian reformists. It is based on the opinion that neither the absolute appointive wilayat al-faqih nor democracy is entirely acceptable, but by altering and combining the two one can arrive at a type of Islamic democracy that can be labeled “elective, conditional wilayat al-faqih.” According to this interpretation, the people of their representatives elect a jurist as the waliy al-‘amr for a limited period to take over the management of society according to the law approved by the jurists and the people. The elected jurist would be responsible to the people.

The third and last answered can be considered the view of the Iranian modern Muslims. It rests on the opinion that the wilayat al-faqih in the political sphere, be it appointive or elective, absolute or conditional, is not supported by valid religious proof. Islam has basically not offered a fixed and specific model for the political management of society, even though it is not compatible with every kind of politics. The wilayat al-faqih, being an autocratic rule of God based on the divine rights of the jurists, is incompatible with democracy. Democracy, being based on principles such as popular sovereignty and participation, the rule of law and human rights, is evidently incompatible with clerical rule and the velayat-e faqih, which is a type of religious dictatorship. The illusion of compatibility of the wilayat al-faqih with democracy is due to the lack of familiarity with the jurisprudential terminology, on the one hand, and the theory of democracy, on the other. The fundamental incompatibility between democracy and the wilayat al-faqih is not an obstacle to the democratic management of an Islamic society. The majority of its Muslim citizens can have a democratic government while remaining committed to their Islamic faith and ethical values. Islam as a religion can be integrated with democracy as the method of modern political life.
The paper describes and criticizes the first two views and analyzes the third with approval.

 

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Wilayat al-faqihand Democracy
Mohsen Kadivar

Are the Shi‘i theory of wilayat al-faqih[guardianship of the jurist) and democracy compatible with one another? If they are not compatible, could the modification of one or both bring them into agreement with one another? If these two concepts are irreconcilably at odds, which should we reject in the interest of preserving the other?

These three questions are of utmost importance to contemporary political thought in Iran. This chapter discusses the relationship between wilayat al-faqihand democracy. Before debating the matter, however, a number of points are discussed below:

One:Although the term wilayat al-faqihis immediately reminiscent of the Islamic Republic of Iran and its founder, Ayatollah Ruhollah Khomeini (d. 1989), the incongruity between wilayat al-faqihand democracy is not necessarily of the same kind as that between Islamic republicanism and democracy. Wilayat al-faqihis altogether distinct from Islamic republicanism.(1) Proponents of wilayat al-faqihbelieve that Islamic republicanism is a method of governance that would give rise to wilayat al-faqih—the two are not the same. Similarly, the critics of wilayat al-faqihdo not believe that a relationship necessarily exists between the two—they not only perceive an Islamic republic to be capable of existing irrespective of wilayatal-faqih, but they additionally believe that an Islamic republicanism minus the wilayat al-faqihprinciple is the Islamic republic that was offered to the Iranian public via the Preamble to the Constitution, which gained widespread acceptance through the April 1979 referendum. What ended up being ratified as the Constitution subsequently in late 1979, and was then modified in 1989, and has been implemented by the two supreme leaders in the past quarter of a century is an amalgamation of wilayat al-faqihand Islamic republicanism—an amalgamation that could be perceived as being a wilayat-based republicanism (jomhouri-ye wila’i)(2)—the sort of republic within which government organs perform their duties under the supervision of the supreme leader (the waliy al-amr). In this study we set out to examine the convergences—or lack thereof—between the principles of democracy and wilayat al-faqih—i.e. the ideal order within which the concept of wilayat al-faqihhas been fully realized. Wilayat-based republicanism or the traditional Islamic republicanism is an incomplete realization, and a subset of wilayat al-faqih. In other words, in this paper we set out to contrast a democratic government with a form of governance that is based on “appointed and absolute wilayat al-faqih.”

Two: The incongruity that may exist between wilayat al-faqihand democracy must also be differentiated from any divergence between religion and democracy, or Islam and democracy, and also from any divergence between religious governance and democracy, or Islamic governance and democracy.(3) Of course if someone already believes that religion and democracy are totally incompatible, there would be no need to address the questions that are being raised here—since it is a foregone conclusion for them.  Similarly, for those who believe that religion is a private matter – that is, restricted to an individual’s relationship with God whose influence must not extend into the public sphere(essentially those who subscribe to radical secularism and believe that it is the foundation for democracy)— any kind of religious governance would be basically undemocratic. The relationship between wilayat al-faqihand democracy is subject to debate for someone who first of all, does not believe that there is only dissonance between Islam and democracy and believes instead that democratic perspectives may be gleaned from the Islamic tradition. Second, such a person does not find an Islamic government to be necessarily incapable of being democratic—more pertinently; this is someone who would allow for democracy to flourish in a religious society. Accepting the above two premises, we now take on the discussion of compatibility between wilayat al-faqih—representing a specific case of religious governance—and democracy.

Three: The questions being discussed here are less than thirty -two years old. They became relevant in or about 1979, when the wilayat al-faqihconcept was applied to public domain. Debating these issues first took place exclusively among elites, and prior to the practical experiences that ensued. The analysis and explanations that they have offered in answering these questions are mostly general and often ambiguous. At this early stage, the proponents of wilayat al-faqihtried to portray this principle in a popular and democratic vein.(4) Starting with the second decade, having experienced wilayat al-faqihin practice for ten years, inquiries into the matter began to spread among the general publicrather than being exclusive to elites, among whom these concepts had been traditionally applied. Furthermore, the responses to these questions gradually became more specific, more exact, and much better clarified. The proponents of wilayat al-faqihwho have responded to the aforementioned questions fall into two camps: in the first, these proponents have candidly proclaimed the principle of wilayat al-faqihto be entirely contradictory to democracy.  The second camp constitutes of those who, while dismissing democracy as a “Western notion,” have defended a sort of “religious democracy” anchored upon the core principle of wilayat al-faqih. Those who are critical of implementing wilayat al-faqih in the public sphere are equally devout Muslims and also fall into two groups according to their kind of concern regarding democracy. One group, believing that the “appointive” and “absolute” attributes of wilayat al-faqihare the cause of the principle’s disagreement with democracy, has attempted to bring the two together by stressing the elective and conditional stipulations of the Constitution concerning wilayat al-faqih. A second group has determined that the implementation of wilayat al-faqihin the public sphere lacks any basis in Islamic jurisprudence—they find the discord between wilayat al-faqihand democracy to be inherent in the two concepts. The depth of analysis and pervasiveness of the views that have been offered, in reply to the questions we raised at the outset, indicate the importance of this debate.

Four: The remainder of this chapter will now go on to define “democracy,” followed by three sections. The first section examines the relationship between the appointive and absolute nature of wilayat al-faqihand democracy. In the second section we explore the relationship between elective and conditional wilayat al-faqih—and also that of the guardianship of the faqih—and democracy. In the third section we discuss the means of governing an Islamic society according to democratic standards. The hypotheses that we are about to subject to scrutiny in this paper is threefold: first, wilayat al-faqihand democracy are not compatible; second, the incompatibility between wilayat al-faqihand democracy is essential—reforming one or both of them would not bring them into harmony.. From this perspective, Islamic democracy would be a contradiction in terms, if it were to be based on wilayat al-faqih. Third, Islamic society can be governed via democratic means.Five: It may seem that democracy would be a well-known concept, but the effort that has been exerted to approve or reject it in Iran indicates that many of those who have commented on the subject did not have a clear understanding of it. Democracy has been mistaken often for popularity or for populism. To prevent probable misconceptions in our discussion ahead, it is best to put forth an outline of democracy. In doing so, we should try to emphasize those aspects of democracy that would stand out, in comparison to the corresponding conditions under wilayat al-faqih. Democracy is an answer to a question in politics: who or what political system is empowered to decide for the public? Three types of answers have been offered for this question: autocracy, aristocracy and democracy. In an autocracy, the assessment of public interest and decision-making in the public domain rest with one individual—all legitimate power to govern stem from that individual. No worldly authority can oversee his actions—he is above the law, unaccountable, invested with absolute authority, and can exert unchecked power to manage the affairs of society. In an aristocracy, the ultimate power resides with an elite class—this group of people is also not accountable to the public. In a democracy, determination of public interest and decisions on behalf of the public are based on the approval of the public at large—not on the approval of a specific individual or a group of elites. In a democratic regime, those executing authority in the public domain are the people’s elected representatives, whose charter is to serve in their clients’ (i.e. the public’s) interest. In a democracy, the government is responsible to the public.  It comes to power through the will of the people, and at a certain time, peacefully transfers its power to govern to the succeeding democratically elected representatives. The laws of democratic societies are established through a process ensuring public consent, and are liable to change according to public will.

To state it more exactly, democracy is the politics of the modern world. It is an approach to instituting government—the purpose of which is to minimize the likelihood of making erroneous decisions in the public domain, through maximizing public participation in the decision making process, and diminishing the role of the individual in making political decisions and shaping public policy. Proper distribution of political power throughout the society is one of the requirements of democracy. A democratic government is elected through freely expressed majority vote, to govern for a limited term. The equal rights to choose—and to be chosen—are among the bases giving rise to democracy. In a democracy, decisions that affect the society must gather consensus for support. Therefore, public oversight of decisions affecting public domain and distribution of equal rights amongst the citizenry, in order to impose oversight over the decisions regarding public domain, are two of the pillars of democracy.

The main attributes of a democratic regime are as follows:

a.       Holding free and all-inclusive elections.

b.      Establishing transparent and accountable government.

c.       Respecting civil and political rights.

d.      Giving rise to a civil, or a democratic society.

To complete our framework of democracy, now we should ask: what are the characteristics of an undemocratic regime?

a.       Sanctioning special privileges in the public domain for an individual or a class of elites (such a distinction is contrary to the fundamental principle of equal rights).

b.      Permanency in holding on to an office, or lacking peaceful transfer of power, following a predetermined term.

c.       Holding an office or an authority in that office above the law.

d.      Lacking oversight of the leadership—lack of accountability to the public.

e.       Having absolute or unchecked power vested in an individual or a group (even if it is sanctioned by the Constitution).

f.        Lack of regard for public demand in changing the law.

 

Section I.        Appointive, Absolute Wilayat al-faqihand Democracy

 

The theory of appointive, absolute wilayat al-faqihis based on four principles.(5)

The first principle is wilayat.(6) It means having responsibility for, acting on behalf of and having jurisdiction over the affairs of others. There is inequality in the sphere of wilayat (hawzat al-wilayat), encompassing the public sphere. The general public is considered to be incapable of making pious decisions, and unable to exert control over public domain. They need religious oversight, since they lack religious jurisdiction over the public domain. Legitimacy of all decisions and actions in public domain depend on the approval and authorization of the supreme leader, as the waliyal-amr. Another meaning of welayat over people is their guardianship, which is fundamentally different from representing them. The citizenry—having been placed in care of the supreme leader—has no say in the appointment or dismissal of the waliy al-amr, and no authority to oversee his conduct of wilayat, or his personal conduct (that of the waliy al-amr, or supreme leader). Opinion of the supreme leader constitutes the measure of proper decisions regarding public domain. It is expected of the public to conform to, and coordinate with the views of the supreme leader—not the other way around. All public domain functions derive their legitimacy through their attribution to the supreme leader. The most important religious duty of the people toward the supreme leader is to accept his verdicts, obey his edicts and help him succeed. Wilayat is obligatory—not elective. It is permanent, and life-long—not transitory. And it is binding on all human beings, without any exception or condition.

The second principle appointment(7) stands here for an appointment by the divine ruler, as opposed to election by the people; above and beyond comprising the legitimacy to govern, it implies selection and appointment of the qualified person to reign over the people on behalf of the last Shi‘i Imam. Identifying the individual who possesses the proper qualifications, is a function of the Shi‘i juridical elite. In selecting the supreme leader from among the Shi‘i juridical elite, the public cannot be consulted since they lack the knowledge to properly assess the merits of the supreme leader. It is generally held that the installment and dismissal of the supreme leader is a divine act. In case the leader is found to have forfeited his qualifications as a jurist, or is found to have become unjust, other elite jurists would consider the leader’s supreme statusto have lapsed. The ruler (or the supreme leader) is responsible only to God—no human being has the authority to oversee his actions. Other elite jurists can only inquire into his qualifications in order to declare him to be fit for the supreme office. In other words, beyond the supreme leader (waliy al-faqih) is only God.

The third principle is absoluteness.(8) Jurisdiction of the leader (waliy al-faqih) encompasses matters of sovereignty in the public domain—all matters fall under this jurisdiction. The leader manages the society based on his determination, or that of his appointees. His authority is akin to that of the Prophet and Imams. His authority is not confined to the religious rule—the waliy al-faqih can rule on matters beyond religious concerns, based on what he deems to be in the interest of the state. His decrees are binding on everyone, just as all other religious decrees must be obeyed and acted on. In case of any conflict between decrees issued by the waliy al-faqih and other subsidiary Islamic standards, the former prevails. While the Constitution draws its legitimacy from the leader’s sanction of it, it is clear that thewaliy al-faqih is not  bound by the laws of mankind, including the Constitution. The decrees of waliy al-faqih carry the force of law, and in case if they seem to be contrary to the law, his decrees take precedence. The judiciary, legislative and executive branches of government, armed forces and media are all his organs, which function independent of each other, but are under the control of one leader—the waliy al-amr.

The fourth principle, jurisdiction (al-faqahat) is the most important requisite for leading an Islamic society. Islamic jurisprudence plays an essential role in the planning and management of an Islamic society. All political decisions must be in accord with the religious fundamentals. Islamic jurisprudence is capable of providing solutions to all political, economical, cultural, military and social problems of the world, and therefore, capable of guiding the greater Islamic world, and the non-Islamic constituency. Politics is a branch of the Islamic jurisprudence, and a part of the religious experience.  Islamic jurisprudence provides a pertinent and complete theory for managing the human race, and guiding the human experience from cradle to grave. Therefore, wilayat or administration of public domain is held to be the exclusive right of Muslim jurists.

The theory of appointive, absolute wilayat al-faqih—in all four of its principles—is contradictory to democracy. In fact, this theory provides for a religious autocracy, or at the very best, it may be viewed as a clerical aristocracy. In fact it has been claimed that the waliy al-faqih, as the operative of the divine on earth, is akin to God—“He cannot be questioned for his acts, but they will be questioned for theirs”(9)—a permanent, arbitrary sacred and absolute authority in the temporal world. In other words, this theory sustains a religious aristocracy, which is fundamentally distinct from democracy.

The following are contradictions, arising out of each of the four appointive, absolute wilayat al-faqihprinciples:

  1.  Guardianship (wilayat)

i.    A requisite of religious guardianship is that the general public—in their capacity to make pious decisions, and capability to influence matters of public domain—is not equal to the jurists. In contrast, in a democratic system, everyone is believed to have firstly, the same rights as anyone else and secondly, the right to influence the public domain.

ii.    In order to administer the public domain, the citizenry is empowered to elect a representative government—rather than being rendered unable or incompetent to make proper decisions, and requiring paternal oversight.

iii.   The standards of proper conduct in the public domain are the views and opinions of the waliy al-faqih—the public is bound to obey his directives. Whereas in a democracy, the public officials must coordinate themselves with the will and sentiment of the public they represent.

iv.   According to the theory of wilayat al-faqih, everyone must seek the permission of waliy al-faqih for any decision or action in the public domain. The situation is completely reversed in a democracy—all public officials are supposed to seek the people’s consent in order to serve in the public domain.

  1.  Appointment (Intiisab)

i.Democracy is a bottom up approach to government. The appointive wilayat based state is a top down regime—election stands in opposition to appointment.

ii.People elect or dismiss their government officials in a democratic regime. Whereas in an appointive regime, members of the general public have no say in the installment or removal of the ruler.

iii.            Without exception, all political assignments in a democratic regime are limited to a specified term. In the appointive wilayat al-faqih, however, the leader is practically appointed for life, and terms-in-office for other public officials are determined by him.

iv.The elected representatives of the people are charged with oversight over the government of a democratic regime, and government is accountable to the people it governs. In an appointive rule, the ruler is only responsible to God; he is not responsible to any human being for his conduct.

  1.  Absolutism (Itlaq)

i.All government officials are assigned limited powers in a democratic regime—there are checks and balances. In appointive, absolute Wilayat al-faqih, the leader possesses absolute and unchecked power.

ii.In a democratic regime, none stands above the law. In appointive, absolute wilayat al-faqih, the leader is not only above the law, he sanctions the law—he can repeal the Constitution.

iii. Separation of powers is fundamental to democracy. In a wilayetI-based state, the judicial, executive and legislative branches of government, next to the armed forces and the media, are the instruments of the leader (waliy al-faqih)—they all function under his orders. Heads of the three branches and key institutions of the government are, in effect, his deputies.

  1. Jurisdiction (fiqahat)

i.There is no special public privilege  that is set aside for any particular group in a democratic regime, whereas, governance in wilayat al-faqihis the exclusive prerogative of Shi‘i Muslim jurists.

ii.In a democracy, society is managed based on secularrational principles; religious jurisprudence is not expected to provide directives for political, economical, cultural, and other matters.  In contrast,  in the wilayat al-faqihsystem, Shi‘i jurisprudence provides an entire theory of governancein all fields, from the cradle to the grave.

The principal incompatibilities between appointive, absolute wilayat al-faqihand democracy are so clear that they need no further proof—it is readily obvious that these principles are not compatible.

The question should be raised here: is referring to public opinion not warranted under any circumstances, according to the concept of wilayat al-faqih? The answer is a conditional affirmative. Referring to public opinion may be warranted in minor cases, and only where the leader’s position is not undermined as a result. In any case, he is the final authority—he can overrule the public’s opinion at any time. Another case may be that if he does not resort to public opinion, he may come across as being dictatorial. In the second case, referring to public opinion is only warranted in a do-or-die situation—to get past the circumstantial necessities.(10) It is evident that once the need is overcome,  public opinion would again become irrelevant, and that referring to public opinion under such circumstances is not the same as free elections held in democratic regimes.

Among the proponents of appointive, absolute wilayat al-faqihtheory, the few who have called it democratic are clearly wrong. Their position can only be adopted either due to a lack of understanding democracy, or for future deniability or cover-up. Among the proponents of this theory, Messrs. JavadiAmoli and MesbahYazdi have stated candidly that this theory is incompatible with democracy.(11) But others among them, while completely rejecting “western democracies,” are promoting a “religious democracy.”(12) In effect, they are only playing with words—subscribing to appointive, absolute wilayat al-faqihideology is to deny democracy in all its forms. Apparently, the only aspect of democracy that may have been appealing to this group is its popularity. Otherwise, touting “religious democracy” is a popularity ploy—the sort of playing with words, which this group has resorted to, is the same as deceiving the public.

Proponents of appointive, absolute wilayat al-faqihfind democracy neither desirable nor beneficial. In their view, the citizenry must be so trained as to allow for none other than blindly following and absolutely obeying the edicts of religious leaders—for the fear of people conceiving opinions to the contrary.

 

 

Section II.       Elective, Conditional Wilayat al-faqihor faqih oversight and Democracy

Considering the great difficulties that appointive, absolute wilayat al-faqihtheory faces, both conceptually and factually, an alternative view has become more prominent among those subscribing towilayat al-faqih.. In their approach, care has been extended to strike a balance between wilayat al-faqihand democracy.

The first attempt at merging wilayat al-faqihin the public sphere with democracy has been made in the past century by Mirza Muhammad HusaynNa’ini (1860-1936) While keeping the general appointive wilayat al-faqihprinciples intact, and taking into account lack of public confidence in the clergy, as the political reality of the time, he allowed the representatives of the people to constitute a government, which remained subject to religious oversight—hence, the conditional government.(13) It was made clear that if for any reason (e.g. regaining popularity) the clergy were to revoke their permission, that government would thenceforth become illegitimate.

In the second step toward legitimizing political rights of the public independent of the jurists, the concept of public rule with juridical oversight, offered by Muhammad Baqir Sadr,(14) has been validated. In this theory, the clergy have more of an oversight function and right of approvalrather than an administrative role, although the supreme overseer is found, and appointed among them through traditional procedure rather than by means of democratic elections.

In the third step, the jurists in Qom advance the theory of elective, conditional wilayat al-faqih, the evolved form of which wasassembled by Ayatollah Hossein-Ali Montazeri Najaf-Abadi(15). In his approach, three of the principles contained in the appointive, absolute wilayat al-faqihtheory have been modified—as described below.

Firstly, by expanding on the selection process for choosing a leader amidst multiple qualified jurists, prior to the eventuality of him being appointed by the divine ruler, selecting a ruler from the slate of qualified candidates ends up being based on public volition. Considering the traditional Shiite doctrine, the public opinion influencing who may rule supreme is a significant step toward democratization of the political process.

Secondly, although the term “guardianship” (wilayat) has been retained in this theory, the legal ramifications of it are different. In the first theory, wilayat was a religious edict, issued by the divine ruler to compensate for the laity’s inadequacies in public domain, whereas in the new theory wilayat is a binding contract and a form of a general power of attorney establishing independent jurisdiction over someone with his consent. On this basis, the government would be a form of religious treaty between the people and the sovereign.

Thirdly, as a consequence of the government having its bases in a contract, the terms and conditions of this agreement  — such as the imposition of a time limit forholding office and the like,, the collectivity of which is called the Constitution — would be legitimate. On this basis, the resulting government would not have absolute power, since it would be limited by the Constitution, as the terms and conditions of the agreement. All the elements of a healthy relationship between the general public and those entrusted with power to rule can be achieved by this approach.

The jurisdiction requirement remains intact as a principle requisite in the new theory, and not only jurisdiction, but also the supremacy in jurisdiction is considered to be the primary requisite for leadership.

Analysis of the recent thirty-some years of wilayat al-faqihin action has inclined the author of the new theory to emphasize the advisory and oversight dimensions and reduce the administrative aspects of leadership.(16) But it is clear that for prevailing religious motives this oversight is none other than wilayat, and that it occurs on account of the religious obligation felt by the overseeing jurist.

Democratic aspects of this theory are as follows:

A.     All public officials—without exception, even the leader—are elected through general elections, and the public participates in electing the government.

B.      As a consequence of recognizing the public as being a party to an agreement or contract, the public’s right to self-determination in public domain is established—accepting this fact is seminal to democracy.

C.      The public right to take part in the law making process being a condition of the constitutional agreement provides the grounds upon which the society would democratize.

Based on the preceding points this theory could be called “religious democracy” or “Islamic republicanism.” Its conformity to Islamic principles is protected through the supreme leader’s guardianship and oversight. Concurrently, the society is managed democratically. However, for the reasons listed below, the resulting religious democracy would be limited, and in a few respects it would be different from democracy:

First.  Accepting an exclusive right for jurists to hold the highest office in society, under the auspices of supreme guardianship, causes the first discrepancy between this theory and democratic principles. Accepting such a right is contingent upon jurisprudence being effective in addressing the challenges of political and social administration. Proving Islamic jurisprudence to be capable of producing effective solutions in such secularmatters is extremely unlikely.

Second. The requirement of jurisdictive supremacy for assuming the leadership takes away from the elective qualities of this approach. On one hand, if the qualifying merits are concentrated in one person, then election becomes irrelevant. On the other hand, the ability to recognize and qualify supremacy, considering the broad spectrum of Islamic jurisprudence and the variety of opinions held by jurists, effectively shields the selection process from the public. The practical difficulties associated with this approach are above and beyond the theoretical criticisms that may be directed this principle requirement.

Third.What would it be like if there were widespread public discontent with the supreme leader’s stance? If there was a circumstance where the majority of the people moved toward a direction and the leader (waliy al-amr) found that direction inappropriate or undesirable—stated his ruling on the matter as such, and the majority still refused to follow his advice. Would he resort to force, in order to establish the validity of his views, albeit against the public will? Or would he acknowledge the will of the people and his lack of support among them on account of their opposition to him, and consequently resign, resort to cultural and educational activities to convince the public of the merits of his view, win the majority over and regain his rightful position as the supreme leader again?  The response is not so clear.

Section III.     Democracy in a Religious Society

 

It became evident through the discussion in the previous sections that two possible conclusions may be reached: first, the “appointive, absolute wilayat al-faqih” and democracy are completely incompatible; these two concepts are complete opposites, just as the Platonic Philosopher-King, the Iranian theory of kingdom, or the mystic’s theory of the perfect human reign would stand in contradiction to democracy. Second, the “elective, conditional wilayat al-faqih” or the concept of the elected supreme leader’s guardianship is a form of limited democracy, which differs from democracy in three respects. Although according to the leader’s capacity the religious order may extend far into the democratic terrain, in cases of narrow-minded jurists the reverse would also be true.

Up to this point, we obtained the two comparisons above, regardless of our evaluation of democracy or either of the two religious theories as positive or negative. In this section we are about to answer two important questions: First; based on religious principles, how credible are the two wilayat al-faqihtheories? Second, considering the definite discord between the first theory and democracy and the relative incompatibility between the second theory and democracy—between wilayat al-faqihand democracy—which is more suitable for managing the affairs of a religious society?

  1.        I.            Criticizing the First and the Second Theories

Regarding the first question the concept of wilayat al-faqihis a subject of dispute in Shi‘i Islamic jurisprudence (17). Most but not all jurists have accepted this principle  when it falls under the category of obligations that must not be left unattended, such as the guardianship of orphan children.  When the legal scope of this principle was extended, fewer people subscribed to it. The extension of wilayat al-faqihinto the public domain is viewed as clerical governance (i.e. in the political arena), and is not recognized by most jurists (18)—meaning that in their view, there is not sufficient basis in  Islamic law to support this claim. The absolute wilayat al-faqihin the public sphere, specifically emanating from Ayatollah Khomeini, has been assumed by some (not all) of his students as being valid. In any case, the author believes that the theory of appointive-absolute wilayat al-faqihlacks any basis in reason, or in  Islamic law.

The theory of elective, conditional wilayat al-faqihand the elected supreme leader’s guardianship is a young one which has not been adopted with much enthusiasm by the jurists in traditional Shi‘i realms. Its supporters are often found amongst intellectuals and political activists. From an Islamic jurisprudential perspective, two of the principles of this theory are subject to debate: one, the requisite of jurisprudential supremacy of the overseer, and two, the assumption of Islamic jurisprudential capability in such spheres as management, politics and social planning. The second point has not been subjected to much scientific analysis and debate among the jurists and religious scholars. The fact that every act, be it individual or social, must be according—or at least, not be contradictory—to Islam, can be assured through consultation with an advisory panel such as the council in charge of Supervising Committee of Senior Clergy (hay’atnazarat al-mujtahidin) in the first Iranian Constitution (Mashrutah) or the Guardianship Council (Shura-ye Negahban) in the Preamble to the Constitution of the Islamic Republic, and does not necessarily require supreme guardianship or wilayat al-faqih. In any event, a number of contemporary jurists, including my great teacher Ayatollah Montazeri have stated positions concerning this theory. The author believes that both issues rest on a more basic understanding of the purview of religion, or, more precisely, of Islamic jurisprudence. Neither is jurisprudential supremacy a requirement for social management, nor can one expect Islamic jurisprudence to supply the required insight for managing society. Therefore, the jurisdiction principle in the aforementioned theory is insufficient.

The conclusion arrived at above suggests that wilayat al-faqih, be it of a religious or civil type, appointive or elective, absolute or conditional, lacks any credible religious basis for its deployment in the political sphere. The jurists who have accepted certain types of wilayat al-faqihhave in fact investigated the matter with a preconceived notion of religion, prior to either reasoning through or testing their specific hypothesis. They have assumed that a. a complete religion must have provided a specific and constant model for managing public policy; b. additionally, without assuming political power, it is not possible to establish such a religion; and c. the purpose for establishing religion is to execute the edicts of  Islamic law (shari’a). For this last purpose, only jurists are qualified to apply the religious law; hence, establishing religious governance in accordance with the principles of wilayat al-faqihis necessary, or even inevitable from this perspective.

Referring to the historical context of Islam, the Qur’an, the conduct of the Prophet and the Shi‘i Imams show that:(19)

A.      Islam is not limited to the individual’s relation with God; it also includes the social realm. The social directives of Islam are furthermore not limited to providing ethical guidance and generating behavioral precepts; they also include injunctions to be carried out.

B.       Islamic society is not compatible with all political systems. It has clearly declared certain political settings to be illegitimate, and has forbidden Muslims to establish such political systems.

C.      In the collective teachings of Islam, its general concepts and social protocols, one can extract a specific or tens of other general political models, none of which would be illegitimate and none of which alone would suffice for a complete political system with all of its necessities and specifics. In other words, Islam does not offer a specific and constant model for managing the politics of all societies, and far be one for all times (i.e. Islam does not provide an unchanging blueprint for a universal government).

D.      The lack of such details in Islamic thought is due to the fact that they are variables. The religion, which claims to be constant—beyond place and time—would be subjected to change, if it were to take on transitional matters. Additionally, Islam acknowledges that human faculties are capable of finding appropriate solutions in these fields. In other words, politics is a matter of intellect, and the ability to reason is a human trait. It is true that a pious individual must satisfy the requirements of his religion in all of his interactions, but acting in accord with the general principles and common protocols of religion does not negate the fact that politics is a human endeavor requiring political wisdom.

E.      One cannot expect to find knowledge of politics, economy, management and sociology in Islamic jurisprudence. At the same time, one cannot do away with the body of constitutional, commercial, criminal and other laws.  Islamic jurisprudence provides a legal framework in such branches of law as  political law, commercial law, civil law, criminal law and the like. Branches of law cannot be expected to provide specific political and economic policies. Although legal council is indispensable in a variety of fields, entrusting management, economy, commerce, politics and a whole host of other specialized activities to lawyers would not produce an optimum result. Wilayat al-faqihhas risen out of a sort of false expectation of the purview of  Islamic jurisprudence.

F.      Obligatory Islamic decrees affecting the public domain do not necessarily warrant religious governance. The necessity for carrying out such edicts may as effectively be accomplished through other means—the pious conscience and the collective will of the public in a civil Islamic society could see to it that all its obligations are fulfilled. There is a difference between the law and religious obligation. The law must pass through a formal process—designed for close scrutiny and consensus gathering—including scrutiny and adoption by the people’s representatives. Religious obligation is not the same as legal obligation. Similarly, committing a sin has a different consequence than breaking the law. An individual is not necessarily punished during his lifetime for having committed a sin or for having failed to fulfill a religious obligation. Religious leadership aims to convince its followers to voluntarily take on a course of action, or relies on the individual to abstain from what may be harmful, based on the individual’s recognizance and free will. If a religious decree is to carry the force of the law—such that it may carry with it worldly punishment—it must put on a legal suit, go through the law making process and become the law.

G.      More so than being a religious obligation, wilayat al-faqihis a reflection of the Iranian theory of kingdom and Eastern despotism in the mind and essence of Shi‘i jurists, which has also been corroborated by the Platonic theory of the Philosopher-King. Its absolutism can be traced in the absolute wilayat of the perfect human being in  Ibn ‘Arabi’s Sufism. It seems that traditional Islamic jurisprudence—with such notions as the principle of non-wilayat(20), principle of sovereignty (All people are the masters of their properties) (21) and the principle of consensus (Rulership  over the people is not legitimate without their consent) (22)—cannot be compatible in the public sphere with such views as wilayat al-faqih.

II. How to solve the contradiction of wilayat al-faqih and democracy?

Regarding the second question—the choice between wilayat al-faqihand democracy, in the event of unresolved incompatibility between the two, is democracy. Through the discourse in answering the first question, we provided that the difference between wilayat al-faqihand democracy is void of any religious requirement, and a matter of rational evaluation. In which case, the alternative that stands to yield the most benefit is the preferred choice. Wilayat al-faqihhas no credible foundation in Islamic jurisprudence. It is a notion that is formed in the minds of a group of honorable jurists through a specific reading of a handful of Islamic passages. Refuting wilayat al-faqihdoes not in any way undermine any of the Islamic teachings, requirements or obligations. I believe democracy is the least erroneous approach to the politics of the world. (Please note that least erroneous does not mean perfect or even error free.) Democracy is a product of reason, and the fact that it has first been put to use in the West does not preclude its utility in other cultures—reason extends beyond the geographical boundaries. One must adopt a correct approach, regardless of who came up with the idea; “look into what is being said, not at who says it.”(23)

Adopting a democratic approach for political management is as valid in a religious society as it is in a non-religious one. A non-religious society, as well as one consisted of a mix of various religious beliefs and ideological subscriptions can be effectively managed democratically—so can a religious and pious society. The claim that radical secularism is indispensable to democracy is only an opinion. In any case, contemplating the relationships between Islam and democracy, or the feasibility of a religious democracy is outside the scope of this paper. The author believes that it is possible to manage an Islamic society using a democratic approach. If a society consisted of a Moslem majority decides to observe Islamic values and considerations, it can incorporate the Islamic values through democratic means—meaning that Islam as a religion can coexist with democracy being a modern approach to managing its politics.(24) In this paper, I have assumed the advantages of democracy to be self-evident. No doubt that this stance would be debatable to those believing otherwise. In any event, the author’s subscription is to a democratic approach in the Islamic society.

The first draft of this paper was presented in 36th Annual Conference of Middle East Studies Association of North America (MESA), Washington DC, November 2002. This article is a chapter of this book: Islam, the State, and Authority: Medieval Concerns and Modern Issues, Asma Afsaruddin (editor), Palgrave Macmillan, Dec. 2011

 

  Notes

(1)   The relationship between wilayat al-faqihand Islamic republicanism (jumhuri-ye islami) has been discussed previously in my Wilayat-Based State (Hukumat-e wila’i) , (Tehran: Ney Publishing House, 2008, 5th printing), chapters 11, 12; 160-219.

(2)   The term “wilayat based republicanism” (jumhuri-ye wila’i) has been described in the article: “From Constitutional Monarchy to wilayat based Republicanism” (Azmashrutah-ye saltanati ta Jumhuri-ye wila’i), August 2002, speech at Columbia University, New York, is online at www.kadivar.com.

(3)   A number of points have been addressed about the relationship between religion and democracy in the article “Religious Democracy” (Mardumsalari-ye dini), accessible online (www.kadivar.com).

(4)   As an example, one could point out Ayatollah Khomeini’s usage of the term “democracy” during the Paris interviews (Fall 1978), and also MortezaMotahari’s similar usage in his speeches on Islamic Revolution and Islamic Republic in 1978 and Spring 1979.

(5)   Theoretical basis is laid out by the author in The Theories of State in The Shi’ite Figh (Nazari-yeh-ha-ye dawlatdarfiqh-e shi‘i) (Tehran: Ney Publishing House, 2008), seventh printing, second and fourth theories

(6)   The subject of wilayat (guardianship) has been expanded at length in my Wilayati-Based State, 160-219.

(7)   The subject of intisab (appointment) has been expanded in the series of articles “Hukumat-e intisabi.” (Appointive State). Nine articles in this series have been published in the Aftab monthly (Tehran, 1379-1381), accessible online at www.kadivar.com.

(8)   The subject of itlaq (absoluteness) has been expanded in the article “Ghalamru-e Hukumat-e DiniazDidgah-e Imam Khomeini” (Imam Khomeini’s Perspective on the Scope of the Religious State), in Dagh-dagheh ha-ye hukumat-e dini(Anxieties of Religious Governance, pp. 111-134.

(9)   Qur’an 21:23.

(10)  Ayatollah Sheikh Nasser MakaremShirazi in his book “Anwar al-faqaha,” in Al Bai’(Qom, 1991),Vol.1:516.

(11)  The book: Pursish-ha wapasukh-ha (Questions and Answers) by Sheikh Mohammad TaghiMesbahYazdi (Qom: Imam Khomeini Institute, 2001), and the book: Wilayat al-faqih; WilayatFiqhwaadalat (Wilayat al-faqih; Guardianship of Jurisprudence and Justice) by Sheikh AbdollahJavadiAmoli (Qom: Usara’ Institute, 2000).

(12)  In this midst, usage of the term “MardumSalari-ye Dini” (religious democracy) by the second Iranian waliy al-faqihAyatullah Ali Khamene’i is worth mentioning.

(13)  Mirza Muhammad HussaynNa’ini, Tanbih al-ummawatanzih al-milla(Exhortation of the Faithful and Purification of the Nation) first published 1909, Tehran 1960. For an analysis of Naeeni’s point of view see my Theories of State in the Shi’ite Figh, the fifth theory.

(14)  Sayyid Mohammad Baqir Sadr. Al Islam yaqudal-hayat (Beirut,1979). For further analysis see The Theories of State in the Shi’ite Figh, the sixth theory. [

(15) Sheikh Hossein-Ali Montazeri Najaf-Abadi; Dirasatun fi wilayat al-faqihwafiqh al-dDawlat-e islami-yeh (Qom, 1988-1991), 4 vols. For an analysis of this work, see my Theories of State in the Shi’ite Figh, the seventh theory

(16)  Political theory of Ayatollah Montazeri that I criticized could be called Montazeri I. Montazeri II is the subject of another chapter. Some of the recent point of views expressed by Ayatollah Montazeri in his book Didgah-ha (Points of View, or Perspectives), 4 vols., particularly in the excerpt “Wilayat al-faqihand the Constitution” is worth studying, available at (www.montazeri.com).

(17)  See Ayatollah Khomeini, Kashf al Asrar(Revealing the Secrets), Tehran, Islamiyeh [1979], P. 185.

(18)  Ayatollah SayyidAbulqasimKhu’I in his Al Masa’ilwarudud,(Qom, 1411 AH), premarked: “the greatest Shiite scholars do not agree with it.”

(19)  These points have been discussed sporadically throughout my Dagh-dagheh ha-ye hukumat-e dini(Anxieties of Religious Governance) (Tehran, Ney 2000). Now they are clustered in one place.

(20)  Much has been discussed in my  Hukumat-e wila’i, chap. 16,  242-245, about the principles supporting lack of velayat.

(21)  See Montazeri’sDirasat, 1:495, the Third Principle, for the framework in monarchy.

(22)  See Ibn-e Fahd-e Hilli; Al Rasa’il al Ash’ar (The Ten Theses)(Qom, 2000); thesis 9, case 9

(23)  Imam Ali. Nahj al-balagha. (Edited by SobhiSaleh, Beirut, 1387 AH)

(24)  I explained the issue in this article: “Islam and Democracy, compatibility or Incompatibility?” accessible online at kadivar.com.