In the name of God and peace be upon our master & prophet Muhammad. This discussion was about appointing the judge , in the second and the last part of this discussion we are dealing with the case of Wilayat al-Faqih (leadership of a jurist over society) .In last session we discussed on three narrations concerning Wilayat al-Faqih which called Ibn Issac correspondence , Abi Khadijah narration and Maqboulah narration . From the above narrations it was inferred that they refer the Muslims to the jurists not only for judgment but also in all affairs and happenings . The narration of Issaq Ibn-Jaqub which has been narrated from Imam Al-Mahdi (may God hasten his uprising) the twelfth Imam , is one of the most reliable reasons for proving Wilayat al-Faqih which is one of the greatest findings in Fiqh of Shia . Recently some spiteful remarks have been revealed by some unaware friends and other spiteful people against Wilayat al-Faqih. This remarks are really silly and have got many negative points. It is really unfair to attack this important and fundamental principle of our state and our nation by making doubts about Wilayat al-Faqih .I am positive If Imam Khomeini was alive he couldn't tolerate this matters, as far as I remember in his period, there were less important remarks against Wilayat al-Faqih which were reacted by Imam very severely and were blamed all of them by him and called them as the ones who didn’t understand the real concept of Wilayat al-Faqih .To clarify that, these spiteful remarks really aren’t based on a good will , I point out to this fact why their attacks are against Wilayat al-Faqih ? I think the answer is really easier to think of it , because they know this Wilayat al-Faqih is the base of our state and the secret of our succession

First , I would like a word with yon as an introduction of Wilayat al-Faqih and secondly , a detailed discussion on Wilayat al-Faqih and Marjiyyat. I think no one doubts that the best person to accept the responsibility of Wilayat al-Faqih is Ayatollah Khamenei . Maybe at first there were some doubtful ideas . After these year Ayatollah Khamenei's manner was so brilliant that made no question for friend and enemy .Praise be to God that he has got the necessary qualifications as a leader perfectly, some characters like the good understanding of social circumstances and also the spirit of Islam. In addition to what mentioned above he has a lot of experiences in the Islamic state of Iran that has made him as a deserved person for leadership so that these characters can’t be found so perfectly in any other one in our society .I forget to say about Ayatollah Khamenei's power and dominance on Ijtihad (the authority of decision making on Islamic laws by a jurist) . In some new cases the other Mujtahids (leading jurists) haven't revealed any solution or legal decisions but he has . I dare consider this matter as a distinctive point for him comparing other great jurists .It is not very hard work to expose the topic which had existed in great books such as Orwah and Javahir(two famous book of the Shia Jurisprudence). I believe Ijtihad can’t be shown by trying on former discussed topics but by working on matters that other Jurists didn’t try on them or didn't pay enough attention.

Some of our friends and I have been witness that Ayatollah Khamenei starts and analyzes a matter very perfectly finding the causes and caused very accurately so that the relations are quite clear. I think it is unfair to neglect of having such leader and following our selfish wills .Consequently I believe there is no doubt in the high rank of Ayatollah Khamenei . Some of his researches and essays have been published in the Quarterly of Fiqh-E-AhlulBait (the quarterly of the Institute of Islamic Jurisprudence (Fiqh) Encyclopedia.

In additions to general qualifications of any Mujtahid which were mentioned some , Ayatollah Khamenei has gained some other special scientific and Fiqhi (Jurisprudential) characters as follows:

First , he has gained a good Knowledge on Rijal (The science of studying Hadith narrators’ biography and their reliability) . Ayatollah Khamenei considers a lot of importance for this matter in his researches so that has presented some new topics and also settled some old problems. His another distinction is , having a good understanding of Quran and Hadith (narrations and traditions) . He can infere and clarify the matters by clear and nice reasons . This kind of understanding is the basis of Fiqh .

One of the most important critiques toward Foqaha (relgious jurists) is related to the way of reasoning which is caused by weakness on understanding Quran and Hadith , but as it was said , Ayatollah Khamenei is very powerful in this case. He also analyzes the literal point of Quran and narrations very beautifully and sometimes gets to new points.

Another distinction of Ayatollah Khamenei is his logical and accurate discipline of thinking which can help in analyzing the complicated cases .Finally I deeply believe there is no doubt in the competence of Ayatollah Khamenei for Leadership although there are always some priceless and spiteful ideas .

After this introduction , I come to the main point which includes Wilayat al-Faqih (The authority of a leading jurist as the Leader of society) and Marjaiyyat (the authority of a leading jurist as the people's reference on Islmic practical laws), the latter “Marjaiyyat” was functioing before Islamic revolution but the second (Wilayat al-Faqih )didn’t function because Maraji (famous leading jurists) weren't authorized and also weren't on power for ruling and leadership , therefore the principle of Wilayat al-Faqih couldn't function and just Marjaiyyat which was a part of Wilayat al-Faqih worked.

This authorization as Wilayat al-Faqih started by Imam Khomeini's great endeavor who made the governing of Foqaha (leading Jurists) practical and possible. So nowadays we can see Wilayat al-Faqih which is the most perfect form of Marjaiyyat is functioning . Wilayat al-Faqih not only includes referring to a leading jurist by people for the Islamic practical laws (Marjaiyyat) but also involves the leadership of the society by that leading jurist. This change in our society aims starting the realization of religion in whole society .

Now a Faqih (leading jurist) shouldn't act just in very detailed cases such as managing the orphan's properties and the matters like this .It is really unreasonable that a Faqih engages himself with very detailed matters and doesn't feel any responsibility in society for important social problems . What does this belief mean saying a Faqih should just function for the detailed and practical laws such as orphan's affairs , and a Faqih isn't deserved to come to power as Wilayat al-Faqih . This is my question, why isn't it possible for a Faqih to have power to execute all Islamic laws in society as a ruler or authorized responsible?

The author of Javahir Al-Kalam says ," whoever doesn’t accept the principle of Wilayat al-Faqih won't taste the sweet taste of Fiqh" .So it is clear that Wilayt al-Faqih is one of the most fundamental principles of Fiqh .The only disagreement comes back to the mentioned thought that a Faqih can't govern . I think the root of this thought comes back to the periods and eras in which , the governing of a Faqih looked quite impossible, the thought which was formed gradually .

However this principle “ Wilayat al-Faqih is a clarified and a settled point which can be inferred from Quran and narrations and also by rational causes and understanding the spirit of Fiqh .

The author of Javahir profist from his Fiqhi (Jurisprudential) talent and makes some interesting decision about important cases like Judgment .Some jurists doubts the important documents which indicate Wilayat al-Faqih such as Maqboulah or Abi_khadija narrations , even if we put this important document aside , we can infer by a rational method which says that a legislator surely wouldn't be satisfied with not being a Judge , Shiite in a Shia society. So we can infer that there is a kind of appointment for a Shiite Judge who is a well qualified jurist .

Here is a fundamental question, If we are not left in a simple point like appointing of a judge , in the case of appointing a deserved person as the Leader (Wali-E-Amr) this fact is very clear and this appointment and its conditions should be practiced in a society .

Another point which I want to have a word on it includes this fact that `Wilayat al-Faqih is the continuation of Imamate (Leadership of Tweleve Shia Imams) . Todays we see some spiteful ones who are instilling some doubts into people’s mind that the legitimacy of Wilayat al-Faqih is given by people , these ideas are perfectly against the Quranic verses and famous narrations which explicitly express that Wilayat (Leadership) firstly belongs to God then his prophet next the Imams and finally the ones who are appointed by Imams so in this case there is no chance for the people to choose .In the narration which indicated the appointing the judge it's been told that "we choose for you a judge , not you ".

In here , maybe someone rely on the theory of Al-Showra (Counsil) or the modern ideas such as direct election which has come from the West . The point is, Shiism hasn't any background or any record about it .The best reason for not existing this point in Shia culture is that , there isn't any narration of our Imams (peace be upon them) about Al-Showra or clarifying the condition of voters. This point “Al-Showra”can be applied nowadays for choosing the responsible of a state but for the case of Wilayat al-Faqih we see all the Quranic verses are against it and there is no way. Some Quran verses like “ The ruling is for no one except God " or " There is no authority for them " or " Obey God and his prophet and those among you who have been authorized by the prophet to rule over you ". If we care ,we’ll see there is no expression indicating the election of a ruler by people .

Among narrations we also see some such as “ They are my deputies to you and I am God's deputy “ which was told by the prophet Muhammad (p.b.h). As we see in the Islam history Imam Ali Ibn Abi Talib (p.b.h) when he was the head of the Islamic State chose all of his governors himself and didn't say to people which one you like to choose.

I believe the matter of election has come completely from the West and there is nothing about it in Islamic documents .In Sunni culture even the concept of Al-Showra (council) is quite different from its today's concept because the appearance of Showra for Sunni was based on political reasons .As we see in the period of Omayyads and Abbasids there isn't any institution called Al-Showra and just is defined in the period of four caliphs .

There is another meaning for election and electing in the Fiqh of Shia in which the act of electing means knowing and introducing someone by people . This concept is highly different from its western concept , nevertheless in this concept there is a special role for the people to supervise the governors.

Nowadays we see some people who wants to make the principle of Wilayat al-Faqih dependent on electing by people so that people can authorize or depose whenever they want .I believe the purpose of such an idea is sweeping Wilayat al-Faqih away and they want to deviate this important principle .

Hereby , I deeply request the young and learned scholars to study on this case carefully and try not to be influenced by the deviating matters which are exposed here and there .

The next point which I want to discuss about, is" A'lamiyyat" (to be the most learned among the famous jurists). In old books on Fiqh this expression hasn't been mentioned and recently has been used in contemporary texts especially in the case of “Ijtihad” which includes referring to the jurist by people for their practical laws. The root for forming this idea comes back more to a rational cause. It means when there is a disagreement between two Faqihs (Jurist) in their opinion for a practical law, the people can refer to the more learned one (A'lam) .

Some contemporary jurists believe in following the A'lam (the most learned jurist) as a obligatory precaution , meanwhile I have to mention some points about definition of A'lamiyyat. I believe the kind and the degree for A'lamiyyat which can be considered as the base of preference between two learned jurist is the difference which is really highly deep and clear between them .

If the difference of two" Learned Jurist is" little but there is a lot of common points , in here we can't say which one is A'lam (more learned) because they have attended in the same seminary , the same school of thinking and also education and the methods are the same. When this differences is really deep so that they belong to two different periods , school or method ,in here we can say the one who is more qualified and has attended more famous teachers and more advanced period can be considered as A'lam (more learned) .

The other point concerning the concept of A'lamiyyat is that , the theory of A'lamiyyat doesn't consist of being dominant just on Usul-al-Fiqh (principles of Fiqh) or Rijal (the science of studying narrators' biography and their reliability) . We consider these factors effective on A'lamiyyat when they've got a practical and applied use in Fiqh whereas we know these factors haven't merely so much effective use in Fiqh by themselves .

So what are the other effective factors except above and also important aspects which are functioning in Fiqhi (Jurisprudential) inference that can make a jurist as the most Learned Jurist (A'lam).

In my opinion these factors can be as follows :

First, having a deep understanding of the spirit of Islam which can be very important for an inference. This kind of understanding not only needs having a good knowledge of Quran, traditions and narrations (Hadith) , Fiqh and principles of Fiqh but also is in a great need of being familiar to the practice and manner of the prophet (p.b.h) and the Imams (p.b.t). It means a Faqih (leading jurist) should accurately know how the prophet and the Imams who had the control of society behaved facing different problems . How did they executed the Islamic laws in the society ? I think for having a good knowledge on the prophet and the Imams practice and behavior , first we should care that what kind of priorities they considered for the good of society paying attention to the circumstances of the society .

In here I should fire to this point that one of the reasons which made Imam Khomeini as the most learned jurist was this character , I mean understanding the priorities. The time he presented the theory of Wilayat al-Faqih really shows his genius of understanding the situations and priorities. He felt a kind of suitability for exposing this theory and finally succeeded .Before Imam Khomeini this theory “Wilayat al-Faqih” just consisted of supervision of a jurist on the matters like appointing the judge , caring orphan's affairs and the subjects like these . If Imam Khomeini hadn't gained such a deep understanding of the reality of Islam , the prophet's and the Imams' practice and especially a good understanding of social situations, he couldn't infer the theory of Wilayat al-Fiqh through the Islamic laws and Fiqh .

Paying attention to this point shows the character of A'lamiyyat in Imam Khomeini made a practical and applied benefit for the society, not just trying fruitlessly doing some theatrical work without any effects .

There is a narration which Wilayat al-Faqih can be inferred from it which is called “Ibn Issac Correspondence” . Imam Khomeini with well justified and persuading reasons inferred the theory of Wilayat al-Faqih from it . The mentioned reasons were literal and verbal or nonverbal .

Another factor which is effective on A'lamiyyat is having a good understanding of cultural , intellectual and legal matters which is very influential on inferring the new and old matters , some new subjects like banking and banking systems , economy and Islamic economy , Judgment and etc …. ,although such matters like prayer and cleanness are basically important but aren't very effective on governing a country as a leader .

The other point which is really necessary for a Leading Faqih is being dominant on Ahlulbait`s (the Shia Imams) knowledge , theological matters , moral and historical points . If we suppose two Leading Faqih and the first one has limited himself just in a special Hadith book like Wasil al-Shia (one of the biggest hadith book of Shia) and the second Faqih has got a perfect knowledge of Shia Imams' narrations , surely I consider the second one as a dominant person on public culture and Islamic knowledge . The mentioned skill can be very useful for understanding the Quran verses and narrations more deeply . In above example the first Faqih who lacks this knowledge is unable to infer perfectly and his reasoning are incomplete . We can conclude of what I told above ,that it is not enough for a scholar to study just some years in a Islamic seminary studying only Fiqh or Usul al-Fiqh very well and then say now I am a Learned Faqih or the most Learned (A'lam). This is Just a small point of A'lamiyyat as I enumerated some factors already .

The characteristics which I told for being A'lam are really existed in Ayatollah Khamenei .He believes that Fiqh should be gotten from the Fiqh itself and it shouldn't be influenced by outer factors. This advantage is one of his high characters . In the case of inferring and making jurisprudential (Fiqhi) decisions, his decisions are really close to the famous decisions . He respects the great scholars' ideas very much and tries to get all of the good point of them and then expose his own opinion . This character is also one of the brilliant character of Ayatullah Khamenei for being A'lam.

To summarize what I told about the case of A'lamiyyat, I believe ,for this case we should consider a full dimensional definition as I explained in details .

Now as the final subject I pay a little attention to Marjaiyyat (the state of being as a Leading Jurist as people's reference for their practical Laws and needs) . Here is a questions which expresses that A'lamiyyat isn't the only condition for Marjaiyyat .If we care, we'll see Marjaiyyat is a kind of leadership of the people for their religious and practical laws needs , in other words, it is a kind of religious and legal legislation . For this reason there are some other conditions for Marjaiyyat such as justice , righteousness and legitimate birth . For some of these conditions we can't find an important reason but we can just say because it is an important position in the society therefore, the owner of this responsibilities should qualify these conditions .

Ayatollah Sadr in his epistle of the practical laws called " Al-Fatawa Al-Waziha" enumerates another conditions as well as the other conditions mentioned by other jurists for the case of Marjaiyyat. Theses conditions are efficiency and adequacy of a jurist . I haven't seen this point in other jurists epistles and books.

I think it is a good topic to be discussed and analyzed in Islamic studies centers and seminaries .Now the point is that , the justice and righteousness which are necessary for Marjaiyyat, how should be their degree ? I believe it should have a high degree ,even higher than the righteousness and justice which were mentioned through narrations and former jutists' tales .But on the whole, I believe among the conditions enumerated for Marjaiyyat the most important is efficiency and the merit, because lots of people follow a Jurist who has the title of "Marjayyat" and they practice his decisions .

It is nice to say that this institution I mean Marjaiyyat didn't exist in Shia culture until Muhammad Ibn-Makki Al-Amili (13 - 14 th century) known as Shahid-E-Awwal founded it, expressing that in a Shia society should exist a Leading Jurist for referring people to him for their religious needs and Islamic practical laws .

As I already mentioned the qualifications of A'lamiyyat , Muhammad Ibn-Makki as a brilliant Jurist and A'lam (the most learned) who had understood the spirit of Islam and Fiqh ,founded one of the most important and fundamental principles of Fiqh which is Marjaiyyat and in our era the late Imam Khomeini as a unique jurist could expand the limits of Marjaiyyat having a perfect understanding of the spirit of Fiqh and Islam he presented the theory of "Wilayat al-Faqih" giving the persuading reasons and well justified causes and discussions so that, Marjaiyyat with all it's importance is considered only as a part of Wilayat al-Faqih.

At the end, I thank God that our present leader Ayatollah Khamenei possesses the necessary qualifications for Marjaiyyat and Wilayat al-Faqih .

I pray the Almighty God for you all to be succeeded .
 

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Notice:This important discussion was presented by Aaytollah Hashemi Shahroodi in his course of Khariji Fiqh (post advanced jurisprudence)in the holy city of Qom in the autumn ,1997. He is the head of the institute of Islamic Jurisprudence (Fiqh)Encyclopedia and the professor of Islamic sciences in the chief Islamic seminary in Qom and the appointed head of Iranian Judiciary. The material for this page are from Fiqh -E- Ahlulbayt Site.