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Wilayat al-Faqih: its Meaning and Scope By, Ayatullah 'Ali Mishkini
http://www.theislamicseminary.org/articles/wilayat_al-faqih/wilayat.htm Translated from Persian by Shahryar Sa'adat & Edit Muhammad Sarwar
The Word ‘Wilayat’ in the terminology of the Shari’ah when referring to the authority of the Faqih involves the following terms:
(4) The functions of Wilayat
(5) And conditions of Wilayat
The term Muwla 'alayh refers to the individuals, groups, or society when Wali’s Wilayat is applied.
'Wilayat' is the office, power and authority of the Faqih established on legal grounds.
The functions of Wilayat are authoritative rules on the basis of religious evidence or from reason.
This discussion and the related issues will be dealt with in a number of sections.
1. Wali, The Qualified Faqih
In Arabic, the word "Faqih" literally means someone who understands well". There is a difference between the two following forms of derivatives as 'Fiqh', 'fahm', "’ilm' and the like and the derivatives as 'Faqih', 'fahim' ' "’alim' and the like. Since in addition to expressing the characteristics of a noun the later group of words denotes experience, specialty and perpetuity of the related quality and trait, thus, Faqih is one who is an expert in the science of Fiqh. The same is true of Hakim, a philosopher or physician, that refers to someone who is well versed in Hikmah, philosophy, and Tibb, medicine. In the present study, therefore, the term 'Faqih' does not refer to any knowledgeable man or expert, it only refers to a particular class of experts who specialize in the science of Fiqh. Thus 'Faqih' is one who specializes in Islamic law, Fiqh and jurisprudence and is a Mujtahid, qualified to give expert opinion (Fatwa) in the matters of Shari’ah, the Islamic laws. The purpose of this article is to establish, on the basis of theology and Shari’ah the right and the limits of the authority and the Wilayat of such an individual.
2. The Islamic teachings, and, in fact, the teachings of all heavenly religions consist of three parts. There is the theoretical, the theology and the practical aspect that form the laws and the ethical theories. It is harmonious with human nature, for whose instruction and development prophets and scriptures have been sent. Man from another point of view can also be considered of three aspects: such as body, soul and spirit. Each section of such teachings is meant to purify, guide, and bring about perfection to the related dimensions of human nature. The section related to man's intellectual dimensions is the section consisting of the basic doctrines of the faith. The section concerned with man's emotional and moral qualities and attitudes is ethics, while the section dealing with man's physical actions consists of the practical laws and commandments of religion. An expert in the first aspect of the teachings is called Mutakallim (theologian); an expert in the second aspect is called akhlaqi (moralist); and one who specializes in the third aspect is called a Faqih, a scholar of Fiqh. This discussion is about the third kind of expert, the individual who specializes in the subject of the practical laws and commandments of Islam.
3. To understand the term ‘Faqih’ and the requirements thereby (faqahah) properly one must first see what its definition is? One must also consider what qualifications a student of religious studies must acquire to become a recognized Faqih? Secondly, what are the preliminary stages, which a student must go through before qualifying for this designation?
A Faqih may be defined as "an individual who possesses the ability to find most or all of the general rules and legal commandments of Shari’ah from the original sources." In other words, he should have sufficient training in the preliminary requisites to establish proper inference and reasoning. Given all the necessary means, he should be able to establish proper inference and deduce any one of the rules of the Shari’ah through investigating and examining the sources, should he be required to do so. In this aspect, the position of the Faqih is exactly like that of the physician, who can diagnose a disease if he is in possession of the necessary means, or that of the surgeon, who can perform surgery if he has access to the necessary instruments and means. The qualification, which forms the basis of the aforementioned definition of ‘Faqih’, is indicative of potential abilities to form logical inference and deduce the rules of Shari’ah from the proper sources. It also does not say that one should have actually found all the relevant rules from the original sources and hold them ready in his memory for instant presentation. The expertise of a Faqih is comparable to the kind of expertise required of a physician or an engineer in his own field; the difference being that the tools used by the Faqih are different, just as the job performed and the results obtained are also of a different class.
The Prerequisites to Become a Faqih
1. Linguistic skills
It is necessary to have good command over the Arabic language to correctly understand the meaning of the material constituting the Holy Quran and the traditions of the Ma'sumin (a.s).
2. Some logical rules and philosophy of language:
It is necessary to have sufficient understanding of the various usage of Arabic words and the structure of sentences to have a clear idea of the meaning of the texts of the holy Quran and other original sources.
3. ’Usul al-Fiqh
To know this discipline is the most important requirement to become a Faqih. It consists of a number of general principles, which guide the Mujtahid in the formation of logical inference and deductions of proper results from the original sources of law. This discipline, therefore, has a direct bearing on the process of deduction of the rules (‘Ahkam) of the Shari'ah on grounds of the principles of reason, the holy Quran and the Sunnah.
4. ‘Ilm al-Hadith (The Science of Hadith)
From this discipline one learns to investigate Hadith, to distinguish the weak (da'if), the unreliable from the authentic (Sahih) and reliable Hadith. The authentic and reliable ones are accepted and what is otherwise is rejected.
5. ‘Ilm al-Rijal
This discipline investigates the reporters of Hadith and all those who form a link in the chain of transmission from the time of publication of the four main texts of Hadith (al-kutub al-'arba’ah) and other books dealing with textual evidence to find through a scholarly manner the rules, ‘Ahkam. The reporters and narrators of Hadith are investigated all the way up to the Ma'sumin, the holy Prophet or the Imam (a.s) from whom a particular Hadith has been reported. What is investigated is the character of the reporters, their veracity, honesty, justice (‘adalah), and reliability. The aim, of course, is to determine the degree of authenticity of the reported Hadith. However, since there is no ambiguity about the authorship of the popularly known collections of Hadith, there is no need to investigate the transmitters who lived after their compilation.
6. Full Knowledge of the Relevant Quranic Verses:
It is necessary for a student to have thorough knowledge of the meaning of the verses of the holy Quran that contain ‘Ahkam of the Shari’ah, as original sources of the practical laws of Islam. The number of such verses is about five hundred.
It takes from twenty to forty years to gain full knowledge of these disciplines, depending on ones natural aptitude and degree of diligence. Moreover, there is the supreme condition, though not mentioned independently, the heart of all the other prerequisites. That no one may become a Mujtahid without the blessing and approval of God Almighty.
2. Muwla ‘Alayh
'Muwala 'alayh' literally means something, which needs to be looked after, or someone under guardianship and is incapable of continuing or managing his life by himself. Thus 'Muwala 'alayh' may refer to:
(1) Assets, such as land or property; or
(2) People, such as the minor, people with mental conditions, or the society as a whole.
Assets and Property
The assets in need of a Wali's protection are of five kinds:
1. Private property, the Wali of which is its owner.
2. Semi-public property; such as charities and endowments (Mawqufat), the property gifted by the owner to be used for the benefit of the general public and the property of unknown owner such as lost-found objects, etc. The guardianship of such assets and properties rest either with designated trustees, or with the Muslim judge (Hakim al-Shar'i).
3. The properties of the Imam (a.s) include the following properties:
Of such properties are Khums, the twenty per cent tax that is levied on seven categories of properties, and Anfal that consists of all lands, forests, mines and surface water resources either have never been utilized or have been used in violation of the law. Detailed accounts of this can be found in the relevant works of Fiqh.
4. National property; such as conquered lands, Zakat (the tax due for nine categories of properties) The guardianship of these two items rests with the qualified Faqih and sometimes may be delegated to private persons. All the above-mentioned assets need protection, be they funds, minerals, plants or animal resources except for the animals living in the wild that are capable of taking care of themselves without any outside assistance.
5. Public property; which does not belong to any particular individual and stands in need of guardianship, such as: mosques, shrines, holy places, streets, highways, roads, and bridges.
In the following the five categories of properties will be explained more elaborately.
Such properties are of many kinds. They primarily fall into four categories:
(b) An endowment for the benefit of a general category of individuals; such as students, the needy, and the veterans
(c) Endowments for particular purposes; such as for commemorating the martyrs, for marriages arrangements and writing religious books etc
(d) Endowments for public use such as building a mosque schools, inns, bridge and roads etc.
The purpose for detailing the above four types of (Mawqufat) endowments is to point out that the last three categories, with only minor differences, are of a public nature, while the first category is of a private nature.
2. Wasiyah, or property bequeathed by its owner through a will for the benefit of the general public, can also be divided in the same way as endowments (awqaf) with only minor differences. Some examples of Wasiyah are property bequeathed for the benefit of religious students, providing housing for the needy, providing subsistence for the poor, etc.
3. The Property of Unknown Owner and Lost-found Property
The property of unknown owner must be used to benefit the poor and the needy with the permission of the Islamic authorities. The same applies to lost found property, when there is no hope of finding its owner, or after one has performed the duty of announcing its finding publicly for a period of one year. Thus, both of these two kinds of properties are considered public property.
4. Government and National Property
From the Islamic point of view there are numerous forms of ownership of property and assets, each subject to different kinds of regulations. For example, Khums and Anfal are considered as government property in the sense that the head of State and the Imam (a.s) of the Muslim Ummah controls them. The head of State is the Imam (a.s) himself when he is present, and his deputy in his absence. This property must be used, first of all, to provide for the expenditure and needs of the officials and employees of the State, and secondly, if anything left over, for the welfare of society, according to the discretion of the Imam (a.s).
However, the income from conquered lands and the Zakat belongs to the people and giving of the Zakat to the poor is therefore left to the discretion of the payer of Zakat himself or herself. In spite of the private nature of these two categories, however, the Wilayat of the head of the Muslim Ummah (nation) applies to them also, and, if necessary, he may put them to some other use, as stated in the holy Quran,
"And know that whatever Ghanimah (gain) you acquire, a fifth thereof is for Allah, and for the Messenger and for the relatives, the orphans, the needy and the wayfarer.". (8:41)
The above verse clearly indicates that the Khums of Ghanimah belongs to the head of the Islamic State. It also states the uses to which it must be put. According numerous Ahadith of the Ahlul Bayt (a.s) it is clear that whatever belongs to God belongs also to His Prophet (s.a) and, after him, to the Imams (a.s). And the three groups mentioned in the verse: the orphans, the needy and the wayfarer, receive their subsistence from the Imam (a.s). Thus, all kinds of Khums are the property of the head of the State, for the purpose of managing the affairs of the country. In the verse: "They ask thee (O Muhammad) of the Anfal. Say: 'The Anfal belongs to Allah and His Messenger'.... (8: 1)
All the nine categories of Anfal are considered the property of God and His Messenger, and God has entrusted His property to the head of the Islamic State. Thus, we can conclude that all the above mentioned forms of income and assets belong to the State.
In the verse: "The alms (Sadaqat) are only for the poor and the needy, and those who collect them, and those whose hearts inclined to the faith and to free the captives and the debtors and for the cause of Allah, and [for] the wayfarers."... (9:60)
Zakat is considered as belonging to the people and particularly the poor, to be used for their needs; it is therefore to be considered as national property.
2. Persons
The persons who are Muwla ‘alayh are of four categories
All the four categories are of Muwla 'alayh, and incapable of managing their affairs properly and living in accordance with the real purpose of creation and guidance of God for man. To leave them without guardian would cause confusion and chaos in the society. It is quite obvious in the case of minors and people with mental conditions. In the case of slaves with a view to the fact that most of them are actually prisoners of war, it becomes clear that to let them roam in the society that has captured them it would lead to all kinds of corruption and irregularity. It is therefore necessary that the slaves must have a guardian who supervises them and manages their affairs. Slavery is only one example of Muwala 'alayh, and it is not related here with Islamic attitude towards slaves and slavery, or the ways and means by which Islamic system has struggled to abolish this undesirable element from the society.
The fourth kind of Mawla ‘alayh, that is, society as a whole, requires some careful study to see whether it, indeed, is in need of guardianship or not. It is a step, which must be taken, however, if we are to understand the nature of the Wilayat al-Faqih. This is so because most people have the notion that only those who are incapable of managing their own affairs are in need of a guardian. They do not see society as a whole as being such, and so deny that society is a Mawla ‘alayh. Although one must agree that there is some truth in this popular notion of society in certain aspects, it should be brought to the attention of the general public that in certain other aspects society cannot be left to itself in the management of its affairs. In fact, the society is even in greater need of guardianship and protection than minors, people with mental conditions and slaves. A more chaotic society is in a greater need for guardianship. The case of society is similar to that of minors and people with mental conditions who are, in general, considered incapable, by the Shari’ah, of handling their own affairs. None the less, there are legal verdicts and Hadith to the effect that minors and people with mental conditions may make wills and set their slaves free. It means that they are considered competent as far as these matters are concerned, and the guardianship of the Wali either does not apply at all to them in these two matters, or if it does, the grounds for its doing so are weak.
This shows that society must also be viewed as an individual entity, and a judgement must be made as to in what aspects it is capable of self-management and in what aspects it lacks such competence and is in need of a Wali. Members of society are left free to conduct their affairs in various walks of life and to manage their own finances, because their competence is evident in their affairs; therefore, there is no need for a Wali for these matters are concerned. There are certain aspects of social life, however, to which Wilayat does apply. Some of the most important of these concern the social, political, legal, and economy of the society.
To determine exactly what aspects and parts of society do or do not need a Wali should carefully be considered. A fuller account of this can be found in the Islamic teachings. An examination of the laws the holy Prophet (s.a) and the Imams (a.s) preached would clearly reveal the nature and limits of Wilayat. It also would reveal the obligations and rights of the Wali and Imam (a.s) and the cases in which the Wali has authority to exercise control over the people's property or their persons. As it will be explained more elaborately, it would also prove that every society needs a sovereign state, properly organized with solidly grounded comprehensive programs and sufficient financial means to carry them out. It is in this context that the necessity of the existence of the Wali and Imam is clearly realized. Society needs an Imam with authority to exercise control over public property and at certain times, if needed, levy taxes to meet the dire needs of the society and protect it against present or potential threats to its existence and sovereignty. It may even be necessary at times for the people to be mobilized for certain tasks against their will. Long-term interests of the community may demand it. Is it not the case that the guardian of a minor sometimes needs to let him undergo surgery, be amputated, an organ removed, or a portion of the minor's property be disposed to save the rest? Some of the scholars who do not acknowledge the validity of the Wilayat al-Faqih, is the Wilayat in the matters in which they consider the people to be competent and capable of proper management such as normal individual’s decisions about his own person and property.
The Evidence
The evidence proving Wilayat al-Faqih, the Authority of Faqih may come from three distinct sources:
A. The Judgement of Reason
The judgement of reason is based on the following considerations:
1. Man by nature is a social creature, driven to cooperation and social life.
2. Great differences and disputes may emerge among individuals due to different ideas, psychological characteristics, physical conditions and capabilities.
3. A great deal of conflicts take place among people because of differences of views, interests, aims, and ambitions, which may lead at times to violent confrontation.
In the light of the above, it is obvious that if people were to be left to themselves, the outcome would lead to corruption, discord, violence, chaos, and destruction of life and property. The only way, therefore, is to save the society through an authority, which can exercise effective control over the people's ambitions and runaway-uncontrolled desires. The Holy Quran relates the story how the angels expressed their doubts about the wisdom of the creation of Adam:
"And when thy Lord said unto the angels: ' I am about to appoint a deputy on earth,' they said: Wilt Thou place therein one who will cause corruption therein and bloodshed?". . (2:30)
Such reaction of the angels was, of course, justified in the light of what they knew about human nature. However, what they were ignorant of was God's plan to appoint spiritual leaders and guides to save human society from corruption and chaos and to establish justice. God answered them: " . . . I certainly know that which you do not know not." (2:30)
B. The Practice and Traditions of the People of Wisdom (Sirat al-'uqala'):
Since the dawn of civilization there has never been any human society without rulers and administrators. Whether voluntary or imposed, subjecting the society to the authority of a guardian or ruler has continued until the present age and will do so as long as civilized society continues to exist. All this we owe to precedents established by the people of wisdom, based on long and hard to achieve experience. In other words, experience, as well as reason; have taught us that every society needs a government and a governor. And having been convinced of its necessity the people of wisdom have practically confirmed the necessity of the existence of State. It is solid evidence the 'practice of the people of wisdom' (Sirat al-'uqald') has provided, which distinguishes it from purely rational evidence (dalil al-'aqli).
C. The Textual Evidence (Adillah al-Naqliyyah)
Textual or canonical evidence to the effect that society stands in need of a Wali, guide and leader, are found in abundance. What follows is just a small sample of the verses and Ahadith that provide such evidence.
1. Consider the following verse of the holy Quran:
"Mankind were one community, and Allah sent (unto them) prophets as bearers of good tidings and as Warner and revealed therewith the Scripture with the truth that it might judge between mankind concerning that wherein they differed".... (2:213)
It is indicative of the fact that there was a time when human beings had not yet formed complex communities. At that time, they had not yet been given any divine law (Shari’ah), and were left to conduct their affairs on their own judgement and commonsense. This state of affairs continued until men formed small communities. Then conflict between communities developed due to conflicting aims and objectives. There was the need for guardianship to remove these conflicts. Allah appointed His messengers and gave man the Scriptures, which contained comprehensive programs and laws for social life to solve their differences and to resolve their conflicts. There is no contradiction between what has just been said and the belief that man has never been without religion since his creation, because Shari’ah is part of religion not all of it. Religion consists of beliefs and certain forms of worship, and has been much the same since the time of Adam (a.s). Shari’ah is a collection of all the rules and regulations governing man's personal, social, economic, political and other affairs. According to the holy Quran and the traditions of the Ahlul Bayt (a.s) religion or Din has remained the same during all phases of human history. Islam, submission to God has always been the religion. "Indeed the (only) religion with God is al-Islam." ... (3:19). There are, on the other hand, five different Shari'ah's, beginning with that of Noah (a.s) and ending with that of the Prophet of Islam (s.a.w).
2. Consider another verse, which is similar to the one quoted above:
"We certainly sent Our messengers with clear proofs and revealed with them the Scripture and the Balance that mankind may uphold justice".... (57:25)
3. Also consider the following verse: "There were... Messengers with good tidings and warning, in order that mankind might have no argument against Allah after the messengers."... (4:165)
4. Al-Imam al-Sadiq (a.s) has said: "God is greater in majesty than that He should leave the world and its inhabitants without a leader and guide to uphold justice."
5. Al-Imam al-Sadiq (a.s) was asked, "Is it possible for God to leave a society without a guardian?" He answered: "He never did so."
6. Al-Imam al-Rida (a.s) has said, "The leader, the guardian, and the Wali of the Ummah is the means for protection of the faith and the guarantee for the integrity of the social structure, the development of the economy and the implementation of the Divine Laws. His existence ensures the security of the frontiers and enforcement of the laws of God; it procures the Divine rights, maintains the integrity of the faith, and safeguards the honor of Muslims. He may, however, cause sorrow and anger for the hypocrites and disappointments for the unbelievers. The Imam of the Ummah is the untiring shepherd of the people, a capable statesman and administrator of their affairs, whose will and determination are impervious to exhaustion and weakness."
7. Of the verses of the holy Quran dealing with the prophets and their authority over human society, there is the following verse dealing with God's appointment of Abraham al-Khalil (a.s) as the Imam and leader of mankind:
"He said: ' I have appointed thee a leader for mankind.".... (2:124)
And God, we are told, made David (a.s) His Khalifah, steward and bestowed upon him the authority over society: "David, We have set thee as a deputy on earth; therefore judge aright among people".... (38:26)
Solomon (a.s) asked God to grant him authority and dominion unsurpassed by any other man: ... "Bestow on me authority such as will not belong to any after me." 38:35)
He gave Moses the mission of forming a State extending over the eastern and the western parts of Palestine: "We made the nation who was oppressed to inherit the eastern parts of the land and the western parts thereof which We had blessed." ... (7:137)
The Meaning of Wilayat and Its Corollaries
In Arabic the word Wilayat means authority, dominion, guardianship and supervision. Wilayat is of two kinds: Takwiniyyah (natural), and Tashri’iyyah (legal).
The first kind of Wilayat is usually discussed in Kalam (theology), philosophy and occasionally in 'ilm ’usul al-Fiqh (the principles of Islamic jurisprudence) with reference to the authority of God and, sometimes, that of the holy Prophet (s.w.a) and the infallible Imams (a.s). A discussion of this concept is relevant to clarify the subject at hand. However, the following points should be considered first.
Divinely appointed prophets were given various titles and names each of which signified a different meaning and content to emphasize a certain aspect of their mission. Some of these titles were Rasul (messenger), Nabi (prophet), Imam (leader), Hakim (ruler) and Wali, (guardian). They were given the title of "Rusul" (plural for Rasul) because they were the messengers of the Creator to His creatures and the word Rasul, means "one who carries a message." They are called "Anbiya’ (plural for Nabi) because they were informed about Divine decrees and religious programs and informed others about them. The word Nabi means one who communicates and informs. And they are called ’a’immah (plural for Imam) because their primary duty was to provide ideological and intellectual leadership and guidance to the community in word and deeds and to be a model for the faithful to follow in their spiritual life and moral conduct. This is the sense in which we find it used most often in the Holy Quran. For example, regarding Abraham (a.s) and his sons it says:
This is the second and concluding part of the article on Wilayat al-Faqih. The main topics discussed are: Wilayat and its corollaries; the Wilayat of prophets and the Imams; Wilayat al-faqih, its scope and limits according to the constitution of the Islamic Republic of Iran and in the light of Imam Ali's epistle to Malik al-Ashtar.
"And We made them leaders (’a’immah) who guide by Our command and We inspired them the doing of good deeds, establishment of prayers and the giving of alms and they were Our worshippers." (21:73)
Concerning Moses and the Children of Israel it says: "And when they became steadfast believing firmly in Our revelations, We appointed from among them leaders who guided by Our command. (32:24). I have appointed thee a leader (Imam) for mankind." (2:124)
It is about the Wilayat of Abraham. Some times after he had been appointed as a prophet, God established him as Imam and leader of the people. Before God bestowed this position on him, his duty, both when he was in Mesopotamia and later, when he had moved to Syria, was confined to inviting the people to monotheism and fighting polytheism, kufr, and idolatry. In Mesopotamia, the environment was not suitable for any role of leadership. All he could do was to put up a one-man resistance against idolatry, which was also not very fruitful. Having survived Nebuchadnezzar's fire, he was forced to take the Syrian journey, and from there moved on to the deserts around Mecca.
Imam Ali (a.s), speaking about the role of leadership, says:
"Be aware that the followers of every school of thought and sect, throughout all human societies have had a leader and Imam whom they followed and from the light of whose knowledge they enlightened their minds.
The ideological and intellectual leadership is inseparable from prophethood, messengership, judgeship and dispensation of justice. It is necessary for sovereignty, leadership and legal guardianship. It is, moreover, one of the pillars of the Wilayat of the Faqih.
So much for 'legal Wilayat and guardianship'. As for 'natural guardianship' (al-Walayat al-Takwiniyyah), it refers to the sovereign will and power of One Supreme Being over the world of creation. In other words, it means sovereignty over the natural order. To elaborate, firstly, the universe extending from all that is on earth to the farthest corners of the universe and the whole world of existence was created by the sovereign all pervasive Will and design of the Almighty God. Secondly, the continuity of its existence is also dependent on the sacred Will of God: "His throne encompasses the heavens and the earth and the task of preserving them all is not a burden on Him. He is the Sublime, the Great." (2:255)
Thirdly, all the affairs of the universe are managed according to His Will. All events, movements, pauses, and changes, from the movements of galaxies and planets to the invisible growth of seeds underground, the crawling of insects and the revolving of the electrons around the protons all take place according to His Will and design. He is the absolute and ultimate cause of all things, effecting some of the things through His angels and invisible agents and other things through direct exercise of His own Will. Clear and unambiguous verses of the Holy Quran dealing with this subject are many, some of which are the following:
"Your Lord is Allah Who created the heavens and the earth in six days, then established His Throne. He directs the affairs. There is no intercessor (with Him) except by His permission" (10:3) Then He established His Throne. You do not have, besides Him, any protecting friend or mediator. He directs the ordinance from the heaven unto the earth; then it ascends unto Him in a day long as a thousand years that you enumerate (32:4-5) . . . And those who distribute blessings by His command. (51:4) . . .And those who govern the affair." (79:5)
These verses indicate the following points:
1. The universe was created by His Power.
2. He is the Maintainer and Guardian of the whole world.
3. He is responsible for governing His dominion and managing the affairs of the universe.
4. The angels have the duty of carrying out the Will of God and serving as His agents in the creation.
5. The activities of His angels and agents are also in accordance with His Will and take place because He so wills.
6. He determines the division of tasks amongst the different angels and their power of discretion in the process of carrying out their duties.
Accordingly, all phenomena taking place in the world do so either through the agency of the angels working under the direction of God and in accordance with His Will, or are direct manifestations of God's Will without the mediation of anyone else. The only exception to this general order is the voluntary activities of the human beings and other creatures possessing an independent will. They act and carry out certain tasks in relation to their vital needs and their environment.
We may compare the control God exercises over the entirety of existence with that exercised by the human soul over the body and its members. Just as the parts of the body are normally subservient to the will of man that obey him and move to accomplish defined purposes, so is the universe subservient to the Will of God. The will in relation to the body motivates the muscles, there being a necessary connection between the will and the movement of the muscles. In regard to the relation between God's Will and the world of being, the Holy Quran says: "Indeed His command, when He intends [to create] a thing, is that He says to it, "Be", and it comes into existence." (36:82)
If God were to bestow this kind of power and authority on someone, which empowers him to bring about changes of a miraculous and extraordinary nature in the world, such changes are either brought about by the angels, or are caused directly by the Divine Will. This would be what is called "al-Wilayat al-takwiniyyah", a sovereignty of a miraculous nature which is different from the sovereignty by legislative decree or "al-Wilayat al-Tashri’iyyah." This power existed, in various degrees. In most of the prophets, its extent and scope depending on the rank of each prophet or Ma'sum who is in contact with the supernatural world.
"Al-Wilayat al-Takwiniyyah
Examples of this kind of Wilayat
The following are some examples of this kind of Wilayat.
1. When Abraham (a.s) asked God to show him how He brings people to life, God said to him.... "Take four of the birds and cut them into pieces, then place a part of them on every hill, then call them, they (the dismembered birds) will come to thee in haste." ... (2:260)
Here God has given Abraham (a.s) the same power that He has bestowed on the life-giving angels. By this means, Abraham (a.s) commands the dismembered body of a bird to come to life and to fly towards him. This incident illustrates the meaning of al-Walayat al-Takwiniyyah over the creatures.
2. God gave Moses (a.s) the power to turn a staff into a serpent, seawater into solid walls and a dry rock into a fountain and water source.
3. God gave Jesus (a.s) the power to give sight to the blind, life to a corpse or a figure made of clay.
4. And finally, He gave the Prophet of Islam (s.w.a) the power to ascend to heavens, and thus defy the Earth's power of gravitation.
There are also numerous other examples of such powers both the Prophet (s.w.a) and the Imams (a.s) demonstrated to which Mutawatir (unanimously narrated) reports testify. The four examples mentioned above are examples of al-Wilayat al-takwiniyyah. The presentation of a fuller picture of this form of Wilayat would require an entire book to explain and discuss the Imamat of the prophets (a.s) and the Imams (a.s).
Al-Wilayat al-Tashri’iyyah
Examples of this kind of Wilayat
The following are examples of this kind of Wilayat (also called al-Wilayat al-'insha’iyyah)
To understand it one must first consider the following points.
The reason for calling such authority Tashri’iyyah or insha’'iyyah is that it is granted by issuing a simple decree or order and does not require acts bringing about changes in the natural world. For example, it is not acquired in the same way as a man attains the physical ability to become a wrestler. It is not possible to become a wrestler by being appointed as one. Nevertheless, the recipient of such an office must meet certain conditions.
2. The important factor in al-Walayat al-Tashri'iyyah is the scope or limits of its jurisdiction. Actually, there is a general limit for all forms of al-Walayat al-Tashri’iyyah in that such authority is applicable to either persons or assets, or both. Its applicability does not lie outside these three categories. Within this general limitation the limits must be exactly specified. For instance, in the armed forces or the police, the domain of authority of every officer is specified. The same is true of other government officials: the jurisdiction of a minister, mayor, or governor of a city or province is clearly defined. In each of these cases, the scope and range of their jurisdiction define the meaning and scope of the Wilayat of each of such officials. The various forms of al-Walayat al-Tashri'iyyah, as recognized in Islamic system for some or all members of society can be understood by looking into the limits of each ones jurisdiction.
3. With this in mind one may look at some particular forms of al-Walayat al-Tashri'iyyah recognized in the Islamic system. Some forms of it, in different degrees and in various forms proper to their particular environment, beliefs and customs, have been recognized in all societies. The Islamic system has approved most of such widely accepted forms of Wilayat and has independently legislated other forms. We shall briefly discuss some of these forms here as follows.
(a) Wilayat of the Father
The father has Wilayat over his children under the age of maturity and the paternal grandfather has Wilayat over his grandchildren, individually or collectively (except in cases of disagreement). It is a kind of Wilayat al-Tashri'iyyah.
Since the explanation of this kind of Wilayat has a direct bearing on the discussion which is to follow, it must be understood properly. In the Islamic Law, a father has full authority over the person and property of his underage children. He may compel them to do certain things appropriate and good for them and restrain them from doing other things otherwise. He may ask them to attend school or to enter into apprenticeship, select spouses for them, conclude for them marriage contracts, ask them to change their jobs, call them to task for their behavior or discipline them. As to their belongings, he may, sometimes, withhold them from his minor children, or dispose them according to his own discretion. He may sell them off and purchase something else instead or exchange them in commercial or non-commercial transactions. He may accept gifts on their behalf; he may, when necessary, lend their property to himself or others and, finally, may use it to meet the expenses of his household. All these powers are part of the Wilayat of the father or the paternal grandfather over the property and persons of his minor children or grandchildren. It is an authority God has decreed, as if He has said: "I have made fathers and grandfathers the awliya' ('guardians) of their children).
Under discuss here is the meaning and limits of al-Walayat al-Tashri'iyyah, not the conditions and provisions thereof, such as the condition that the handling of the children's assets under the father's Wilayat must be for the benefit of their underage owner or owners.
(b) The Master’s Wilayat
The master enjoys Wilayat over his slave. In case of exigency, the Shari’ah sanctions slavery subject to limitations of place and time. In other words, when Muslims take enemy soldiers captive during war with infidels, the system under certain specific conditions, subjects them to the authority of Muslim soldier as slaves. The Muslims who own the slaves are obliged to pay for all their expenses and endeavor to educate them. In this connection the Shari’ah has legislated certain rules which result in the ultimate freedom of the slaves under reasonable conditions. Such laws were set down in an environment in which the Muslims found no better way of dealing with the problem of prisoners of war. The other alternatives-killing those prisoners, handing them back to the enemy, or setting them free to do as they please in the Islamic society were not only against the interests of Islam but it was also against reason. Neither was it within the means of the Islamic government of the time to confine them within a prison. Therefore, there was no other option than to distribute these captives and put them under the guardianship of individual Muslims, so that they could gradually become acquainted with Islamic system of ethics and customs and finally attain their liberty. When we note the Islamic instructions concerning their treatment and the various ways legislated for their freedom, the issue of sanction of slavery in Islam and the baseless accusations made in this regard become clear. What is relevant here is that the Wilayat of the master over his slave is similar to that of a father over his underage children and we are not concerned here with the reason and justification for the legislation of such a Wilayat or with criticism raised in this regard
(c) The Wilayat of the Executor of a Will
The Wilayat of the executor of a will (wasi) or the non-parental guardian (qayyim), who is appointed, to supervise over the persons and property of the minors, by either the father or paternal grandfather, is a form of al-Walayat al-Tashri’iyyah. It is derived from the Wilayat of the father and the paternal grandfather and is sanctioned subject to specific conditions and limitations.
(d) The Wilayat of 'adil believers
The Wilayat of 'adil, one who maintains justice in his dealings all the time, believers is a limited form of Wilayat. It pertains to the property and assets of those who due to immaturity, mental conditions or absence are incapable of managing their own property when the property is in danger of being ruined or wasted. In such cases, when the father or the paternal grandfather or the religious judge (Hakim al-Shar’) are absent or inaccessible, every believer has the authority to handle such property and to protect it through sale, transport, exchange, etc., until it can be placed at the disposal of its owner. This kind of Wilayat is subject to specific conditions and, as can be observed, its limits are very restricted.
(e) The Wilayat of Every Muslim
The Wilayat of every Muslim believer in regard to other Muslims in relation to his duty to the principle of al-arm bil-ma'ruf wa al-Nahy 'an al-Munkar (enjoining good and forbidding evil) is yet another form of Wilayat. This means that God has given every Muslim the authority and made it his/her duty to stop his fellow Muslim brother or sister from committing a sin, be it negligence of an obligatory (wajib) act or committing an act forbidden by the Law. This is similar to the duty of a kind father to guide his children to perform their obligatory duties and stop them from committing forbidden acts. And just as a father has the right to resort to more forceful means if his kindly advice is not heeded, the Muslim believer also has the duty to resort to gradually more severe methods if his sincere and kind advice is not listened to. The means used, in the order of severity, are:
The person advised or censured has no right to question the authority of his Muslim brother or consider his behavior as interference in his private affairs. This is true regardless of who the two parties may be, whether they are men or women, older or younger, black or white. The Holy Quran states: "And the believers, men and women, are awliya' (plural of Wali) of one another; they enjoin the right and forbid the wrong". (9:71)
This form of Wilayat is both general and specific. It is general and universal in the sense that it includes all Muslims, men and women, who are duty bound to stop unlawful conducts. It is specific in that it applies only to the matters of al-Amr bi al-ma’ruf wa al-nahy 'an al-munkar. 'Aside from it, no one has any right to interfere in the affairs of other people and tell them what to do and what not to do. It is only with regard to the obligatory duties of a Muslim (wajibat) and acts considered unlawful by the Shari’ah (Muharramat) that such an authority has been licensed. This is evident from the above-mentioned Quranic verse.
(f) The Wilayat of the Trustees
The Wilayat of the trustees of public and personal endowments (awqaf) is also another form of Wilayat. Their authority is bestowed upon them by the donors, and in cases where the donor has not nominated any trustee it is the duty of the judge (Hakim al-Shar'i) to appoint a trustee if needed. In this kind of Wilayat, the authority applies to property alone and the legal custodian is called a "Mutawalli." He has the responsibility of seeing to it that the endowed property (waqf) is used in the way intended by the donor (waqif), and is empowered to take whatever measures are necessary to protect the property or to ensure that it is used for its intended purpose. This kind of Wilayat is confined to assets and is obviously quite limited in scope.
(g) The Wilayat of the Heirs
The heirs have Wilayat over a deceased person in regard to his funeral arrangements and burial ceremonies (such as Ghusl, Takfin, Sala and burial, etc.) This duty falls on the heirs according to the legal order of priority and no one has the right to interfere in this matter without their permission, unless the deceased has left no heir, or the heirs are absent. This is also one kind of Wilayat enacted in the Islamic Shari'ah.
Summary
The above-mentioned examples were presented here to clarifying the meaning of al-Walayat al-Tashri’iyyah. These allow us to draw the four following conclusions:
(1) Al-Walayat al-Tashri'iyyah must be authorized by a legitimate authority and bestowed on an individual to fulfil certain conditions.
(2) This form of Wilayat sometimes applies to the person or individual subject to the authority of the Wali such as the Wilayat over minors, people with mental conditions or slaves, when they possess no property. At other times it may apply to property alone- such as the Wilayat of the trustees of endowments and executors of wills. And finally, it may apply to both such cases as the Wilayat of parents over their underage or mentally disabled children when they possess property as well.
(3) All the above-mentioned forms of Wilayat are inherently limited, although the nature of the limits varies from one to another.
(4) Since the Wilayat of the Faqih is derived from the Wilayat of the Ma'suimin (i.e. the Prophet (s.a.w) and the Imams (a.s) and is directly based upon it, it is necessary to explain, albeit briefly, al-Walayat al-Tashri'iyyah of the Ma’sumin (a.s).
Al-Walayat al-Tashri’iyyah of the Prophets and the Imams (a.s)
Even a superficial study of the basic teachings of Islam will reveal that its teachings are not limited to the system of beliefs and acts of worship. It has a complete moral, government, and political, social, judicial and economical system. In other words, it provides comprehensive instructions for all the affairs of man's worldly existence as well as about the matters relating to the Hereafter. The Islamic system has requires the establishment of a State and provided the fundamental principles necessary for its establishment, for the protection and security of all of its followers and to organize and manage a society in harmony with man's nature. Such a vast system, vital for the needs of man both spiritual and material, was in fact established by the Prophet (s.a.w) and worked for years under the leadership of his successors.
The Wilayat of the Ma'sumim, refers to his authority in such a system as mentioned above. God, the Absolute Sovereign through His Providence has granted this Wilayat to the prophets and the Imams, so that they may govern the human society according to the needs and requirements of the times. This form of government, the 'Islamic government,' consists of three elements:
This form of government is unique in all the three aspects mentioned above; it differs from other forms of governments, past or present, in each of these aspects. However, our discussion here is confined to the first aspect, that is, the role of the al-Walayat al-Tashri’iyyah of the Wali in the context of the Islamic government. We leave the discussion of the other two aspects to some future occasion.
In the original Islamic Law, the guardianship of society during the lifetime of a Ma'sum, whether a prophet or an Imam, belongs to him. The following Quranic verse and Hadith indicate this fact:
"The Prophet has a greater right over the believers than themselves and his wives are their mothers. And some of the relatives have priority over the others in the Book of Allah than (other) believers and the Emigrants".... (33:6)
Three issues are stated in this verse:
Now consider this statement of the Prophet (s.a.w): "Whoever is under my Wilayat and authority is also under the Wilayat and authority of Ali Ibn abi-Talib."
The evidence in this Hadith about the Wilayat of the Prophet (s.a.w) and of Ali Ibn abi-Tali