A Tale of Two Theories: Government by Judiciary Theory Versus Guardianship of the Jurist Theory

• Citation: Vol. 33 No. 4
• Publication year: 2019
• topic: Constitutional Law

A Tale of Two Theories: Government by Judiciary Theory versus Guardianship of the Jurist Theory

Shams Al Din Al Hajjaji

A TALE OF TWO THEORIES: GOVERNMENT BY JUDICIARY THEORY VERSUS GUARDIANSHIP OF THE JURIST THEORY

Shams Al Din Al Hajjaji^*

Abstract

This research argues that Muslim scholars developed two theories of government over time. Even tough Islamic scholars—Shia and Sunni—agree on mandating the highest level of legal knowledge in any member of the Islamic government, they disagree on the legal nature of these members, whether they are judges, or jurists. Shia Islamic scholars adopted the theory of the guardianship of the jurist (Wilayat al-Faqih in Arabic, or Vilayat e-Faqih in Farsi). Unlike Sunni scholars, the Shia has developed a practical approach to apply their theory of government in practice. A prominent example of this theory is the Iranian practice of the Guardianship of the Jurist Theory. Sunni Islamic scholars adopt the theory of government by judiciary (Wilayat Al-Qadi). The assumption of this theory is that member of the government are judges. This is based on the assumption that Prophet Mohamed was a judge with enumerated executive authorities, namely the collection of Sadaqat (state financial revenue), military power, and foreign affairs' representation. This theory has never been in practice since the assassination of the first four successors of the Prophet. This research is divided into three major sections. The first deals with the theory of Sunni-Muslim scholars, which is government by judiciary. The second section presents the theory of Shia-Muslim scholars, which is guardianship of the jurist. The last section deals with the major five distinctions between the two theories.

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Introduction: Common Theoretical Features...................................505

I. First Theory: The Government by Judiciary
(Wilayat Al-Qadi)............................................................................509

A. Executive Authorities of the Senior Judge: Enumerated Authorities ................................................................................ 509
B. Judicial Appointment: Authority and Qualifications................ 514

1. Judicial Appointment Authority of the Senior Judge: Special Status of the Prophet.............................................. 514
2. Judicial Appointment Authority of any Supreme/Senior Judge (Council) .................................................................. 515
3. Judicial Appointment Authority of Junior Judges .............. 517
4. The Appointment Qualification in Islam ............................ 518

II. Second Theory: The Guardianship of the Jurist Theory (Wilayat Al-Faqih)..........................................................................521

A. The Historical Foundation of the Guardianship of The Jurist Theory: the Imamah Principle.................................................. 522
B. The Iranian Form of Imamah: Imam's legitimacy and the Role of the People ............................................................................. 525
C. The Authorities of the Imam: Judicial and Executive Authorities of the Faqih............................................................................... 527

IV. Distinction Between both Theories...........................................529

A. The Legal Nature of the Leader................................................ 529
B. The Role of God in the Appointment of the Jurist, or the Judge ........................................................................................ 530
C. The Role of the People in Choosing the Faqih, or the Judge .... 530
D. The Judicial Authority of the Faqih and the Judge................... 531
E. The Executive Authority of the Faqih and the Judge ................ 531

Conclusion.................................................................................................532

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Introduction: Common Theoretical Features

This research argues that Muslim scholars developed two theories of government over time. Even tough Islamic scholars—Shia and Sunni—agree on mandating the highest level of legal knowledge in any member of the Islamic government,¹ they disagree on the legal nature of these members: whether they are judges or jurists.² On one hand, Shia scholars adopted the theory of the guardianship of the jurist (Wilayat al-Faqih in Arabic, or Vilayat e-Faqih in Farsi).³ Unlike Sunni scholars, the Shia has developed a practical approach to apply their theory of government in practice.⁴ A prominent example of this theory is the Iranian practice of the Guardianship of the Jurist Theory.⁵

On the other hand, Sunni scholars adopt the theory of government by judiciary (Wilayat Al-Qadi).⁶ Major Sunni scholars like Hasan Al-Basri and Abu Bakr al-Razi adopted such a theory.⁷ This theory assumes that members of the government are judges.⁸ This is based on the assumption that Prophet Mohamed was a judge with enumerated executive authorities, "namely the collection of Sadaqat (state financial revenue),⁹ military power,¹⁰ and foreign affairs' representation."¹¹ This theory has never been in practice since the assassination of the first four successors of the Prophet.¹²

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The common Islamic assumption is that the difference between Sunni and Shia is a mere political difference on who is the competent body to hold the position of the Prophet's successor.¹³ The comparison between Sunni and Shia theories of government is a valid Islamic comparison. From the prominent Sunni scholars' perspective, there is no prohibition to use Shia jurisprudence, especially Twelver Imami- - Ja'fari jurisprudence.¹⁴ Shiekh Mahmud Shaltut (1893-1963), who was the Grand Imam/President of the University of Al-Azhar, issued a famous fatwa on Shia jurisprudence.¹⁵ His fatwa argued that Twelver Imami- - Ja'fari jurisprudence is reliable.¹⁶ Khamenei, Shia Islamic scholar and Supreme Leader of Iran,¹⁷ permits the Shias to pray behind a Sunni Imam.¹⁸ He also issued a famous fatwa to end a long debate between the Sunni and Shia about the Shia's position from the Prophet's friends and his wife Aisha.¹⁹ Khamenei, as well as the Iranian constitution, banned insult of any Sunni scholars.²⁰ As a result, there is no religious obstacle to comparing the two theories.

The two theories share three common features. First, the Prophet's main role is the Muslims' supreme judge. The Prophet was not a king with unlimited authorities over Muslims.²¹ However, the main role of the Prophet is to resolve disagreements among the Muslims,²² making him the supreme judge of

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Muslims.²³ The Quran gives several descriptions of the Prophet.²⁴ Some are exclusive to him,²⁵ and others are of general characteristics.²⁶ The former characteristic is the Prophet's divine nature, being the last Prophet, and God's messenger.²⁷ The later characteristic is his earthly nature.²⁸ The Prophet, as a supreme judge, enjoyed enumerated executive authorities.²⁹ They are collection of Sadaqat (state financial revenue),³⁰ military power,³¹ and foreign affairs' representation.³² Hence, the Quran establishes that believing in God is conditional upon the acceptance of the Prophet as a judge, whose judgments are drawn from God's commands.³³

Second, Islam has a negative view of judicial profession.³⁴ The Prophet discourages Muslims from being judges,³⁵ since judges will regret madding certain decisions in the Day of Resurrection.³⁶ The Prophet distinguishes between three types of judges.³⁷ Only one among the three will survive the Day of Resurrection.³⁸ The judge who will eventually go to heaven is the one who is

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sure of the right thing, and makes his judgment accordingly;³⁹ but the judge who knows what is right, and acts tyrannically in his judgment is doomed to Hell;⁴⁰ and a person who gives judgment for people when he/she is ignorant, will also be doomed to Hell.⁴¹ As a result, Muslims should avoid the judicial profession as a career.

Third, Islam distinguishes between two levels of judicial legitimacy.⁴² The first level is the Prophet's legitimacy, and any other senior/supreme judge.⁴³ God chose the Prophet as be the supreme judge to Muslims.⁴⁴ If a certain person wants to believe in Islam, such person has to recognize the Prophet as the supreme judge.⁴⁵ Otherwise, the person is free to choose his/her judge.⁴⁶ The second level is legitimacy of the senior, and junior judges.⁴⁷ According to the Quran, people are the source of legitimacy.⁴⁸ If Muslims agree on a certain person, then it is consensus Ijma on such person.⁴⁹ However, Muslims' consensus is limited to the senior judge.⁵⁰ In Sunna, God chose the Prophet, and the Muslims agreed to the God's choice.⁵¹ Yet, the Prophet used to appoint junior judges, like Mo'az ibn Jabal, and Ali ibn Abi Talib, without the people's consent or consensus.⁵² The aim of the distinction between the two ranks of judges is twofold. First, it aims to protect junior judges from the risk of engaging in the political process.⁵³ Second, it aims to choose the best-qualified junior judge irrespective of political factors that may affect the appointment process.⁵⁴

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Hence, the legitimacy of judges in Islam is different, based on the rank of the judge.

This Article is divided into three major sections. Section II deals with the theory of Sunni-Muslim scholars, which is government by judiciary. This section tackles the power (executive and judicial) of the senior judge, and the appointment methods of the senior/junior judge. Section III presents the theory of Shia-Muslim scholars, which is guardianship of the jurist. It shows the distinguishing features of the theory. Moreover, Section III highlights on the Iranian practice of the principle of Imamah (Leadership) and the Imam (Leader). Lastly, Section IV deals with the major five distinctions between the two theories.

I. First Theory: The Government by Judiciary (Wilayat Al-Qadi)

Government by judiciary does not have any...