The Wilayat, authority, of the Faqih

Some of the above-mentioned duties are based on the category of mawdu’at, matters to which al-‘ahkam al-wad’iyyah relate). Such rules and or entities come into existence as a result of a contract or decree, like the authorities and duties of the officials of government.
In other words, they are of the same category as ownership, which is created by acts of buying, selling, or donating and marriage, which owes its existence to the conclusion of a marriage contract between two parties, which comes under ‘ahkam al-Wad’iyyah but are subject to a series of ‘ahkam al-Taklifiyyah.
The duties such as in (i) and (v) set forth for the Faqih are fulfilled as he considers to be in the best interest of the people. Other duties of the Wali, al-Faqih come under al-‘ahkam al-Shar’iyyah of a particular kind calledinsha’iyyah; i.e., compliance with the, decrees of al-Wali al-Faqih in the course of fulfilling these duties is obligatory and binding. The items in (ii) and (x) fall within this category, because the appointment of judges and pardoning of convicts are among the specific duties of the wali al-‘amr.
“… When he (i.e. the qualified Faqih) rules according to our ruling and is not accepted, then he (who rejects such judgments) has scorned the judgement of God and he who refutes our authority resists the purposes of God. (Wasa’il al-Shiah, vol. 11, Sifat al-qadi).
There is yet a third category of duties. Of such duties are appointments and dismissals of officials, which may give rise to ‘ahkam al-Shar’iyyah of binding nature, such as when the wali al-‘amr, on the basis of his judgement for the best interests of Islamic system would issue an order or hukm.
Such cases are similar to decrees dealing with the sighting of the new moon or dealing with and cessation of hostilities, etc. They may also be indicative of a priority but not of a binding nature. An example of this category is the appointment of suitable individuals to posts other than those already mentioned.
The duties of al-wali al-Faqih mentioned in the Constitution are only a part of his duties; there are others, which have not been mentioned for example:
• The appointment of Friday-prayer leaders
• Implementation of Hudud and Tazirat
• Exercising control over the persons and properties of the disabled, the minors, people with mental conditions and the absent
• Performing the higher degrees of al-‘amr bil-Maruf wa al-Nahy ‘an al-Munkar
• Exercising control over the Anfal
• Control over Khums (20 percent tax)
• Control over conquered lands
• The collection of taxes in addition to those established by the Shari’ah
• The collection of the Jizyah from those to who it applies
• Appointing trustees for endowments and donated properties
• Appointing trustees for properties left by their owners for public use (wasaya )
• The collection of Zakat and appointment of personnel for its collection
• Making arrangements for the funeral of individuals who die without a heir
• Prevention of hoarding and setting prices for commodities
• The utilization of found properties (Iuqatah)
• Issuing the verdict of bankruptcy for the bankrupt which suspends his authority over his own assets
• Divorcing the wife of a lost or one with mental conditions
• Hearing the pronouncement of li’an in cases of Mula’anah
• Issuing a decree about sighting of the new moon and the beginning of a-month, in cases of doubts.
Although the Wali al-‘amr may delegate some of the above duties to others, he can also carry them out personally or appoint an individual or a group to see that they are carried out properly. He may also establish separate ministries to fulfil some of his duties, such as forming ministries for awqaf, for al-‘amr bil-Ma’ruf wa al-Nahy ‘an al-Munkar, for overseeing Friday prayers, for controlling the Anfal and for Zakat collection, etc. The important point is that the duties of the Wali al-’amr are not limited to those mentioned in the constitution of the Islamic Republic of Iran.
The duties of Wali al-‘amr mentioned may, according to the opinions of some of the‘ulama,’ fall within the range of the duties of other fuqaha’ who are not Wali al-‘arnr. It would therefore be appropriate to briefly mention the various religious functions fulfilled by the Wali al-‘amr and the characteristics peculiar to each of them.
A Mujtahid, one who is capable of finding ‘ahkam, rules of Shari’ah from the three valid sources (the Holy Quran, the Sunnah, and reason), may fulfil three distinct religious duties.
(a) The function of a mufti, he has the right to issue a fatwa in the matters of law; (b) the function of Wilayat; and (c) the function of a judge. All of these posts are independently established for the Mujtahid on the basis of distinct and specific Ahadith, and each is subject to specific regulations and covers specific functions and responsibilities which may occasionally be common to the three. Are the conditions and qualifications for filling the three posts the same?’
When one has the capability of Ijtihad and has come to possess all the qualifications usually discussed in legal texts in the section dealing with Taqlid, can he occupy all the three of these Positions? Some are of the view that the requirements for a judge are less than those for the other two and most of the conditions necessary for the other two offices – even existence of Ijtihad and ‘adalah (justice) are not considered necessary for a judge. It is said that if one has a reasonable degree of knowledge and capability to handle judicial cases, even if he is a muqallid, following a Mujtahid, he may sit as a judge, even though ideally he should be a fully qualified Mujtahid.
The qualifications necessary for a judge are discussed in most of the books on fiqh, in the sections “the requirements for a judge.” For a fuller discussion of this topic one may refer to such books like al-Masalik, Jami’almaqasid, al-Tadhkirah, al-Jawahir and al-Riyaz and so on. In addition, Ahadith dealing with this topic can be found in the four books: kutub al-‘arba’ah) and in Wasa’il al-Shi’ah (in kitab al-qada).
The requirements for a Mufti can also be considered as less than those required for the office of Wilayat. All that it requires is Ijtihad and‘adalah. The office that requires the existence of all the relevant conditions is that of Wilayat and leadership. In other words the requirements for a judge (qadi) are less stringent than those for a Mufti and the requirements for a Mufti are less stringent than those necessary for the Wilayat.
Therefore,Wali al-‘amr can act as a Mufti and a qadi (judge), but all Mufti and judges do not qualify for the office of Wali al-‘amr. A Mufti can be a judge (qadi) but not every judge can be aMufti. What distinguishes the Wali al-‘amr from the Faqih or Mujtahid and give him superiority over the latter are administrative capabilities, courage, political and social insight and any other quality which is required of him depending on particular conditions of time and place.
This was for clarification of the requirements for Ijtihad and Wilayat; as far as the difference in their duties is concerned it is clear that the qualified Faqih can perform most of the duties and functions of Wilayat. The controversy is mainly about such functions as formation of the government, supervision over and the implementation of Hudud andTa’zirat, selection of governors and judges, Friday prayer leaders, and so on. The concept of the Wilayat of the Faqih is accepted in essence by all the Shi’i ‘ulama‘. The difference of opinion concerns its scope and limits.
The discourse above concerns the qualifications and duties of the Wali al-‘amr, the Faqihand the qadi. However, as far as the duties and obligations of the people towards those who hold these offices are concerned, those relating to the faqih are dealt with in detail in those sections of the law, which deal with Taqlid, following in matters of the a scholar ofFiqh. Those dealing with the Wali al- amr can be found in various chapters of the law and those dealing with the qadi in those sections of the law dealing with qadi. I have stated most of the other issues relating to these three offices in my works on wajib and haram, at the beginning of the second part but without going into elaborate arguments.
1. The evidence that establish the Wilayat, authority, of the Faqih
2. The Qualifications Required for the Wilayat
3. The Scope and Limits of Wilayat, authority of al-Faqih