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The Nation Must Enable the Scholar (Al-Faqih) to Establish the Right and Eradicate the Wrong

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The Nation Must Enable the Scholar (Al-Faqih) to Establish the Right and Eradicate the Wrong

The issue as a title was not part of the books of the companions. It is rather understood from the induction of various resources relevant to the authorities of the scholar in the era of the absence (Ghaybah). This is in addition to the extent of his headship to practice the functions of the Imam, such as implementing punishments, praying Friday prayer, judging between people, giving the permission to invade, and capital punishment if the command of the right and the prohibition of the wrong depends on such. Further, this includes the collection of the outstanding funds for the Imam (P), etc.

Scholars in locations throughout jurisprudence books address such authorities. However, we need to collect the dispersed material to compile an integrated project. Here is not the suitable place for presentation. We will discuss the headship of the scholar (Wilayat Al-Faqih). It is not accurate to say the scholars have not talked about the headship of the scholar in their research and that it was established by the late scholars. This is equal to saying that the previous scholars had no dynamic and social jurisprudence, which is not accurate. However, the deficiency is in failing to compile the dispersed material and to write integrated theories on the issues of the society, the state and the human.

Whatever the case might be, Sheikh Mufid said in “Al Muqni’ah” and Sheikh Tousi said in “Al Nihaya”, “The scholars who are knowledgeable may implement punishments when the Imam is absent. They can judge between people if they would be secure from the damage of the ruler at that time. People must help them in that. Sheikh [Tousi] had narrated citing Hafs Bin Ghayath who cited Abi Abdullah (P). He said, “I asked him who holds punishments, is it the ruler or the judge? He said, “Implementing the punishments is by the ruler.””([1]) It is doubtless that the jurists may judge among people. Thus, they can implement punishments, too. Restricting the punishments in case the Imam were absent, while being able to fulfill them, would lead to corruption. Therefore, it is justified.([2])

Sheikh Tousi says, “If an unjust ruler grants someone rule over people, and commissions that person to implement punishments, he may do so to the full extent. He would believe that he was doing that by the permission of the true ruler instead of the unjust ruler. The believers must help him and enable him to do that, under the condition that he does not violate justice in his ruling, in addition to the legal provisions of the Sharia (law) of Islam. If he violates the righteous rule, he may not perform the functions, and no one may support him, unless he fears for himself. Then, he may do it in the case of fearing (taqiyah), provided that it does not include killing people where even in the case of fearing, he may not do it for any reason.([3])

Some companions interpreted the establishment [of the rule] as being necessary. It would be right for the necessity to establish the rule of religion. Allah said, {Establish religion}(Shura:13). The problem would be with the confusion that this function is only for the Imam. If there were license for scholars to hold the authority, then, there would be no obstacle, and it would be surely necessary. This goes under the proposition of whatever might be possible is imperative.

A group claimed that the establishment [of such rule] is crucial for the nation. Indeed, this includes all the instances where the scholar who has the conditions met in him assumes the duties of implementing sharia (law) in commanding the right and eradicating the wrong. In that case, there would be a need for conditional wounding and killing with the permission of the Imam, or there might be a necessity to implement the punishments or to rule among people. Salar said, “As for killing and injuring in cases of wrongdoing that is to the authority of the ruler and of whom he orders. If it were not possible for a certain restriction, the Imams delegated the scholars to implement punishments and rules among people. In such, they must not violate a duty or abuse any punishments. The Shia followers were asked to cooperate with scholars if they were right.”([4])

Some of the grand religious figures discussed the permissibility of scholars assuming these functions when the Imam is absent such as Mohaqeq in “Sharai’” and Al Allama in a number of his books. Mohaqeq Hollicited the words of Al-Shaikhain mentioned earlier to be just a word of mouth.

Shaheed Thani commented saying, “This is what Al-Shaikhain([5]) and some companions([6]) say. There is a narration citing Al-Sadek (P) on this – referring to the previously mentioned narration of Hafs – where the series of narration is weak. However, the narration of Omar Bin Handhala([7]) supports this. Implementing punishments is a kind of ruling.

There is a comprehensive benefit in it. It is a grace to leave what is forbidden and a decisive ending of the spread of evil. This is when the scholar is strong. It is needless to say that he must be safe from damage cast upon him and other believers.”([8])

I say, “Ibn Idriss ordered not to take by it. He has narrated the words of Sheikh Tousi mentioned earlier. He said, “The priority in religion is to leave the implementation of this narration, instead, it is rather a must. The narration was mentioned by our Sheikh Abu Jaafar in his “Nihaya.” In several locations, we gave a justification for what is included in this book, I mean Al-Nihaya.” We said, “He mentions it so as to tell about it but not as a belief for fatwa and consideration. This is because there is a consensus by our companions and Muslims unanimously that it is not permissible to implement punishments. Only the Imams and the rulers obtaining their permission to rule are addressed by this. As for others, they might not do that in any case. The only case in which the unanimity can be refuted is by a similar unanimity, Qoran, or a proven and renowned Sunnah rather than the narrations of individuals.

If a man fears for himself when he does not implement them, he may do that for fearing “Taqiyah” if that does not reach killing people. That is when Taqiyah is no longer permissible according to our companions without disagreement.”([9])

In my opinion, when he says, “Only the Imams and the rulers obtaining their permission to rule are addressed by this,” this should be understood counter intuitively to what he wanted to say or the prohibition and disapproval he was said to have. It is commonly known through the numerous mentioned narrations that they have the permission by the Imam. He, expressed unanimity contrary to what he had wanted. Therefore, the words of the writer of Al-Jawaher will be mentioned to rectify the narration.

Allama discussed the point in “Montaha”. He said, “No one may establish punishments except for the Imam (P) or whomever he appoints. None other than them may establish the punishments in any case. In the time of absence of the Imam, however, a person is licensed to establish the punishments to whom he owns if this does not entail damage to himself, to his money and to other believers, that is, if he is secure from the injustice of the oppressors.”

Al-Sheikh also said, “In the time of the absence, it is permissible for one to establish punishments to his siblings and wife, if he is secure from damage.”

Ibn Idris forbade that unless it were for the owned. Al-Sheikh narrated from Hafs Ibn Ghayath, saying “I asked Abu Abdullah (P), “Who establishes punishments? The ruler or the judge?” He answered, “Establishing punishments is for the one who rules.””






([1]) Wasail al Shia: 18/220, Book of Judiciary, Chapters on Judgment Methods; Chapter 31; Rule 1

([2])Muqni’ah: 129; AlNihaya: 301-302.

([3]) AlNihaya: 301.

([4]) Marasem: 260-261.

([5]) Refer to Muqni’ah and Nihaya as mentioned earlier.

([6]) Refer to Kafi by Halabi: 423 and Tanqih Ra’e :1/596. The writer of Jawaher said, “Iskafi, Two Sheikhs (Shaikhain), Dailami, Fadhel, Shahidain (Two Martyrs), Miqdad, Ibn Fahd, Karaki, Sabzawari, Kashani and others as was narrated of some.” Jawaher Al-Kalam: 21/393.

([7]) He says in it, “They look who among you narrated our tradition, looked into what we allow and forbid, knows our rules, and they should accept him as judge. I have made him your ruler. If he rules with our rule, and it was not accepted, then it is the rule of Allah that they underestimate, and they reject us. Who rejects us is like the one who rejects Allah. This is like paganism.” Wasail Shia, Book of Jurisdiction. Chapters of Qualities of a Judge. Chapter 11, Section 1.

([8]) Masalik al-Afham: 3/107

([9]) Sarair: 2/25.