Alternative Readings for the Theory of Jurist Leadership

The Shiite Jurist Ahmed Alnuragi highlighted the theory features of Jurist Leadership in (1829). Alnuragi transferred the Shiite political thought into a new stage in terms of nature of the jurist relationship with the authorities and developed the Public Leadership theory from “the Reign of Kings «into the “Reign of scholars». Thus, Alnuragi went beyond the «Waiting Theory» to reform the Public Leadership theory and change it from Jurist Leadership of the Occult Imam governed by «Absence and Waiting» theory to the «Absolute Jurist Leadership». This theory was nothing but a phase of subsequent phases of the Shiite political thought and the Jurist relationship with the authorities. When Khomeini took over, he shifted it from a political thought into a real ruling system where he boosted it to the peak of absolute power of the Jurist Leadership at the top of all authorities.
Despite of what the supporters of the Jurist Leadership claim of evidence of its absolute power, many figures inside the domain of the Shiite political thought consider the Jurist Leadership as just a sort of juristic deduction of fundamentalists that resembles other theories in this ideology.
In this study, we will review some different readings of the relationship of the Shiite Jurist with the political authority, and the relevant theories that tackle this concern.

 

» Theories of Shiite Political Thought
Those who oppose the absolute Jurist Leadership see that the variety of scholars’ views on the nature of Islamic government and the diversity of its sources provoke the argument that any of those points of view can’t be considered a religious, sectarian, or Jurisprudential necessity. It is possible for anyone to believe in any theory and fight for it because of multiplicity and diversity of the religious readings, which is rejected by the supporters of absolute Jurist Leadership since they consider this as damage to the essence of religion and commitment to the absolute Jurist Leadership theory.
Since the Islamic government represents a kind of «religious knowledge», there must be a number of theories that handle this issue. The essence of religion comes in a form of “unchangeable divine phenomena». However, religious knowledge is subject to interpretation as well as multiplicity of readings, because of the human phenomenon impact on that knowledge. Consequently, opponents of absolute Jurist Leadership and considering it the essence of religion see the necessity to not mix-up between religious knowledge and the core of religion. Knowledge and understanding occurs due to the efforts of jurists in the study and explanation of Quran, Prophet‘s Hadeeth, and Imams’ teachings of Shiite sect using syntactic, morphological, philosophical and concluding approaches along with their knowledge of the human nature. Therefore, it clearly appears that the explanation of religion has always faced special circumstances, which cause diligent jurists to add their own understanding of the world and human nature. This process leads to the so-called flexibility or «Kabz and Bast» theory that has become one of the important theories in Iran, especially for the enlightened religious members.[1]

Based on that, this trend of Jurist Leadership theory can be labeled as a political theory that did not occur as a product of jurisprudence science; but a theory based on «Kalam or speculative theology» and the history of prophecy and imamate. Hence, since prophecy and the Imamate are parts of “Kalam”, the theory of Jurist Leadership, which represents a ruling theory as well, must be addressed within the framework of «Kalam».[2]
Scholars and enlighteners of this trend began to present theories about the shape and identity of the Islamic government. In this section, we will address the most important theories of concern, which confirm peoples’ supremacy and democracy.

 

» The Alternative Ruling System Theories for the Absolute Jurist Leadership
A. Democratization with Supervision of Religious References
Mohsen Qadivar, one of the most prominent open-minded figures of this trend, makes use of Baqir al-Sadr’s theory he presented before his death just before the success of the Islamic revolution in Iran. The theory emerged as a primary theory of to the two preceding theories that had been presented by Al Sadr, which were “Shura-elected-Government” And the “Jurist Leadership of Scholars”, leading to the theory of the “Islamic State” which is, according to him, based on two elements:
1. Divine Rights and Caliphate Rights of Man.
2. Religious Supervision.[3]
The foundations of the people›s sovereignty with supervision of references theory as follows:
• Allah the almighty is the source of all authorities and the true state comes from Allah Almighty.
• Managing the human community and running its affairs are the concerns of divine caliphate that has been granted to man. It is a divine trusteeship as described by the holy Quran, which takes into account the implementation of the commands and provisions of Allah, and the application of his laws.
• Prophets, peace be upon them, and the impeccable Imams are the proof of Allah to people to maintain the man caliphate, guide humanity and keep it away from deviation. Thus, they are the intellectual and legislative authority for a safe and consistent human community.[4]

During the time of the Major Absence, Baqir al-Sadr believes that the task of maintaining the divine caliphate of man should be delegated to religious authorities and scholars who enjoy a kind of qualitative designation. In other words, the general conditions jurists enjoy are determined by Allah, the Legislator. Due to their lack of impeccability, jurists can compensate that by justice and count on conscientiousness in relation to the caliphate rights. The difference between the impeccable Imams and scholars is that the Imams are able to be both proofs and caliphs, in addition to practicing caliphate and supervision at the same time. As for the Absence time, the traditional references are in charge of the regulatory process, while people take over the caliphate.[5]
According to Baqir al-Sadr, the Jurist can combine two issues, supervision and caliphate. When the society lies under a dictator, the caliphate, supervision, and control is handed over to a religious authority, so that the nation can overthrow the tyrant ruler under the leadership of the religious references. Hence, the nation can take back its divine caliphate right, enabling the religious authority to return back to its usual job of control and supervision.

Mohammad Baqir al-Sadr moves to another point concerning framing an Islamic system in accordance with a holistic political view. He began with the constitution, which is believed to be taken from the source of Islamic law “sharee’a”, which states that the constitution should be based on the following principles:
•  Legal legislations that are everlasting foundations, agreed upon by scholars and concerned with social affairs, represent a permanent part of the constitution, and are unchangeable.
•  Legislations that are subject to diligence are the responsibility of the legislative authority to study them and issue those that serve the people’s interests.
• The legislative authority takes into account the people’s interests when passing laws and regulations which are not ruled by the religious legislator, weather halal or haram (allowed or prohibited by the laws of religion) on the condition that they don’t contradict with the constitution.[6]
• People play a major role in the theory of Mohammad Baqir al-Sadr. To him, they are the alternative of the absolute Jurist Leadership theory. That is, after the overthrow of the reign of unjust ruler, the divine caliphate moves from him to the nation. Al-Sadr based his points of view on two impeccable rules quoted from Quran:

• Shura source including the following issues:
• Both men and women believers are equal. That is, the caliphate of the nation comes about in the Shura and the opinion of the majority in case of disputes. To activate that role, the legislative and executive powers hold the responsibility of applying those rules within the framework of the constitution. In brief, the nation is responsible for the application of its caliphate before Allah through those two powers.
• The mechanism of activating the divine caliphate of the nation can be achieved through the following:
1) Electing the state president after approving his powers by the religious reference
2) Electing the Parliament members who shall be entitled to the following:
• Adopting the most appropriate rules (Fatwa) when there are different diligences, taking into consideration the people’s interests
• Pass laws for the issues that the religious legislator does not specify a rule for
• Supervise the implementation of the constitution rules and laws and oversee the executive branch actions.[7]
• The Jurist Leader is the head of this regime since he is the Imam Deputy and forms an inseparable part of the Islamic nation; thus, the Jurist Leader is just one of people and the caliph of Allah on earth. Being a religious reference, he shall have the following tasks:
• President of the Islamic government and the commander in chief of the armed forces
• Ratify the election of the state president. This ratification is a confirmation of the implementation of the constitution where the head of the executive authority works as a representative of the religious reference in the government. The same authority is also given to the head of the legislature authority.
•The Establishment of a Higher Council Supervision
• The Establishment of the Injustice Board[8]
According to al-Sadr›s theory, in order for the Jurist Leader to accomplish his duties to his best, he has to form an advisory senate that includes a number of one hundred members of scientists and thinkers while the number of diligent people in the council should not be less than 10 people.
Al-Sadr named his theory as the” Islamic Republic” through which he can accomplish what he seeks for «the people’s sovereignty with the supervision of the religious references». That is, the Islamic republic is governed by the constitution where all its organizations are established by a legal religious text, public elections, or a combination of both. Mohsen Qadivar, sees the uniqueness of this theory is in its consideration of the political rights of people away from the mandate of scholars in a clear and official way. In this context, people are considered the caliph of Allah on earth who handles the social and political affairs. The concept of people here refers to the human race away from color, ethnicity and nationalism. Women also share the divine caliphate side by side with men. The mandate of faith considers both genders are equal with no difference in rights and duties. The judicial power, according to this theory, shall be under the supervision and control of the righteous religious reference represented by an organization rather than an individual with a knowledgeable Jurist at the top of this organization.[9]
As noted in this theory, Jurist Leader must not be given the status of holiness, but he is only an individual like any other person in the society. This order allows for his impeachment and removal from office if necessary. In addition, the religious referential is a supervisory and control organization but not an executive power.» Therefore, people take over the mission of implementing the divine caliphate under the supervision of that reference. This theory increases the effectiveness of the community in practicing power. The existence of ninety-members with various disciplines side by side with the ten members of the hardworking of the Advisory Board of the Supreme Leader confirms the different spectrums of people›s roles in the political life.

 

B. The Democratic and Religious Government
A number of enlightened supporters of this trend, led by Abdul Karim Soroush, call for a «religious democratic government», which, according to his point of view, bases on faith rather than on the so-called «Government of Jurisprudence.» In this sense, Soroush believes that the religious government lends itself to different dimensions and not limited to the «Jurisprudential Dimensions». In addition, this form of government is not based on the views of scholars and religious Hawza; it is the only authority that can handle the subject of government. The issue of religious government goes beyond the Juristic aspects. The proper way to handle it is through speculative theology as well as the theory of Jurist Leadership. Even those who believe in this theory, think that the Jurist Leadership is part of the Imamate and has same authorities as the Messenger of Allah peace be upon him, which means that it is out of the scope of Jurisprudent since prophecy and Imamate are issues of the speculative theology and have nothing to do with the Islamic Jurisdiction.[10] In this regard, Mohsen Qadivar says, “there is no basis for the Jurist Leadership in the Islamic jurisprudence. This theory was established by respectful scholars through their own readings and understanding of some Islamic sources. Therefore, the rejection of the Jurist Leadership is not considered a violation to the Islamic teachings and duties.[11]

 

» Soroush’s views about the Difference between the jurisprudence and Religious Governments
In his analysis of the Democratic Religious Government, Soroush takes into account the assumption that true Religion is based on faith and work. Faith lies in one’s heart. Meanwhile, there is much resemblance between the doings of believers and non-believers. In other words, the doings of both believers and non-believers seem to be similar, but believers’ deeds are associated with faith and belief, meanwhile, non-believers’ deeds are associated with other concerns. Therefore, it can be recognized that faith and belief shape one’s state of religion. Therefore, the Religious Government depends essentially on faith and belief, and the deeds of the believers. Based on this assumption, the Religious Government is concerned with people’s faith more than their deeds. Therefore, faith represents the core platform of this government rather than jurisprudence, which means that both kinds of governments are way too far from each other.[12] On the other hand, Soroush believes that the supporters of the Jurisprudent Government see it as a ruling body that maintains and preserves the jurisprudence teachings and laws in the community. Therefore, since religion came up with those laws, the government and people should abide by them and act within their scope. This kind of government, according to Soroush, is commissioned by the believers; however, this does not mean that this government is possessed by them, which means that it is a government on bodies rather than on hearts. Thus, this type of government contradicts with the Quran verse “There is no compulsion to convert into Islam”; where conversion into Islam can’t be imposed on people. The true religious government is one that considers the rights and freedom of people, and takes into account the principle of “the freedom of religion in Islam”, thus, allowing people to understand religion and take up faith in a free and knowledgeable way.[13] To sum up, according to Soroush the difference between the Religious and Jurisprudence Governments is that the Jurisprudent is commissioned to oversee people, enforce their religious obligations and forbid them from conducting any prohibited deeds, either believers or non. In this case, the society shall be headed by a group of Jurists that enforce the Juristic laws, leading to a society that abides by rules and regulations away from unethical and disgraceful deeds, even out of faith or by force. The Juristic view of the Religious Government considers” Deeds” more than “Intentions”. It works to enforce laws and ban all prohibited deeds; in essence, Jurisprudent is the essence of Islam. In that case, only jurists will take over this government. Social issues like freedom, justice, and human rights will be minor and insignificant, and people will only act upon the religious rules and regulations. The concept “religious rights and justice” in such types of governments is limited and restricted to religious concerns only, which leads to neglecting other concerns of human rights that are considered sacred rig in any democratic society.[14]
On the Other hand, if the society is based on faith, that is, religious government based on faith, people will have the right to take up their own ideology. Faith, ethics, and deeds will be priority. Hypocrisy and show off will be amongst the acts that contradicts religion, same as drinking and gambling. [15] Soroush believes that the responsibilities of this government differ from those of the Jurisprudent government that performs its responsibilities based on the path of wisdom and good advice that is, talking to hearts until it reflects on bodies. The essence of a faithful community is based on the» Inner Faith”. The religious government is the one that grants people the freedom of faith and belief, hence, this religious community allows people to elect their rulers who bear the responsibility of creating a free environment of faith in the community. [16] Soroush cites Murtady Motahari’s saying “Islam is a religion of freedom for all people of the society. We can make people say something, but we can’t make them believe in it. Faith comes through evidence and logic. The matter of preaching of Virtues and Prevention of sins is a duty, but it must come in the form of guidance rather than compulsion”. [17]
The perfect guidelines for creating a rational government according to Soroush, is recognizing the civil rights and independence of people who enjoy those rights in terms of humanity rather than a religious community.[18] The non-governmental duties are the ones people enjoy willingly, as religious individuals, rather than being imposed on them by government. If people count on those rights and duties, they can build a regulatory organization without the need to the legitimacy of the ruler, which will accomplish what is so-called the “External Regulatory Power”. On the contrary, if considering self-control and justice of the ruler sufficient to prevent him from committing mistakes, it leads, according to Soroush, to the lack of need of the external regulatory power and won’t enjoy any legal status because of the absence of religious obligations, which means the absence of a true regulatory power.[19]

 

» The Theory of Jurist Leadership and the role of People in the shade of this theory
In his proposal, Soroush aimed at promoting democracy and increasing the role of people in the society after he had found out that the absolute power of the Jurist Leadership is a theory that restricts the role of people in the power. The enlightened people of this trend confirm that the existence of democratic institutions such as political parties and political organizations and freedom of press are incompatible with the existing absolute Jurist Leadership theory, because it doesn’t pay attention to the urgent demands and desires of the community. Moreover, the Jurist Leader encompasses rights and powers that are not guaranteed by the constitution. Therefore, this trend calls for the principle of “Balances between rights and responsibilities”.[20] In this perspective, Soroush points out that the theory of Jurist Leadership goes in two directions that detract from the rights of people as follows:
First of all, the Jurist enjoys sovereign rights and gains powers by only being a Jurist and ignores the role of people. This theory is known as the theory of «Divine Inauguration», which means that the Jurist Leader is enthroned to rule by the Prophet, peace be upon him, and the Imams.
Secondly, the norm is authorization, but not inauguration. The Jurist Leader gains power only when chosen by people. This means that they elect the one who is qualified and capable of taking power. Based on those circumstances, it is clear that the legitimacy of the Jurist Leader does not come from people. People have never inaugurated or set up the requirements and standards of the Jurist Leader. On the contrary, those requirements and standards have already been identified. In sum, people have two choices, either recognizing the Jurist who achieves those conditions or inaugurating him for Leadership. Considering people’s right to elect their ruler as a religious and divine right is actually a detraction of those rights. It is; therefore, necessary to take into account the civil rights and duties of people. The principle of Jurist Leader, who receives the legitimacy of power from Allah, leaves no power to people. The role of people should be more than just explorers of the person who owns such a divine right.[21]
Therefore, it clear, as Hashim Aqajery believes that people and the political authority are related to each other and form one political body. To confirm that the political mandate is not as claimed by some people who describe it as a traditional state, Aqajery cites the refrain of Ali bin Abi Talib from caliphate after the death of Uthman ibn Affan , the third caliph in the Islamic state. In that occasion he delivered a speech saying: “I swear by Allah, I have never had the ambition of the caliphate nor of authority, but you Muslims invited me and placed me in charge of that burden”. In light of this background, Abdullah Nuri wonders, “If the Jurist Leader is unveiled, and that the Imam of the time is the one who appoints him, how can we interpret what the caliph Ali Bin Abi Taleb said, “I›m not free of mistakes”. Moreover, how can we interpret the Quran verses that mean: “consult them in affairs”, and “their affair is established through consultation”.[22]

Hussein Montazeri, in his book “Studies of the Jurist Leader «states that all evidences point out to the lack of proof of the public inauguration of the scholars in relation to jurisdiction. Moreover, the most important recognized stories such as Magbolat Ibn Hanzala and Mashoorat Ibn Khadija recognize the assignment of scholars the right of inauguration only in the judicial authority. In light of that, Montazeri believes that the only available method for the Islamic government during the time of Absence is the election of the righteous Jurist by people. Therefore, the government derives its legitimacy from the people within the religious framework, which symbolizes a pact between two parties, the Leader and people under the supervision of the legitimate body. The Islamic government according to Montazeri, is a legal contract between the nation and the elected Leader, which lies under what is known as «The recognition of granting and accepting the independent authority and power”.[23]
In his view about role of people, Khatami says, “Rulers think they represent a special case, as if Allah created them and chose them rulers since the beginning of life and that people are obliged to obey them and submit to their authority. This kind of relationship has never suited the status of man. That is, the status of all officials is granted by people. It is the votes of citizens that make governmental officials important and take the position they are in charge of. That status and position enjoyed by those officials pledge to the realization of that person that he is only an employee and is there to serve up people. He has also to realize that he is accountable before Allah in the first place and secondly, before people.[24]
True democracy according to this trend, is the one at which people play a major role as a controller on the ruling class and elector of those in authority. Mohammad Khatami believes that the government that does not abide by the people’s interests cannot be accepted in any way. The world has unanimously agreed upon the assumption that taking authority comes about only through the will of people, and is subject to their supervision and control. The idea of modern democracy, according to Khatami doesn’t contradict with Islam; it is the way to get rid of tyrant governments.[25]
As mentioned hereinbefore, it appears clearly that the Jurist Leadership that is adopted in Iran and represents the foundation of the ruling authority, according to those who belong to the same Shiite political thought, is nothing but a theory emerged by the speculative theology. Thus, it is subject to criticism and preference with other theories of the Shiite political thought.
In the end, we leave the respectful reader with a statement by Abdullah Nuri, Minister of the Interior Affairs during the first term of Rafsanjani’s presidency and during the first term of Khatami’s presidency when he says, “The dispute over the interpretation of Jurist Leadership theory was just for gaining power but nothing else”.

Dr. Sultan Mohammed Al-Nuaymi

Iranian Affairs Academic Researcher and Specialist