لطفا منتظر باشید ...
2. Such as the contract of renting /leasing
3. Such as the contract of borrowing
4. Such as the matrimonial contract
The instance of the first kind is dealing (purchase and sale)
and the compromise that has the ordinances/ injunctions of the purchase and
sale. The content of such a contract is that the vendor becomes the possessor
of the price, while the buyer becomes the owner of the commodity. The content
of purchasing contract is the possession of the substance (ayn), while in renting; the content of the lease is the
possession of the profit (manfaah) (for the
lessor/landlord) and not the substance.
He, who takes a commercial unit or a residential one on lease,
it denotes that the property itself is for the lessor, however, in exchange for
the lease, the leaseholder becomes the owner of the profit of it.
The third kind that is the ownership of the exploitation is that
when, for instance, the borrowing contract was signed, the borrower that, for
instance has borrowed a vessel that is the loaner has given the borrower the
loan of it.
And this contract/agreement was done either verbally or
practically (muaataat) the borrower can
exploit that vessel but is not the owner of its profit.
This case is different from hiring a vessel from the stores that
let out vessels and kitchen utensils. For, in these cases one owns the profits
of the vessels while he who borrows a vessel from his/her neighbor is the owner
of the exploitation of it and not the profit of it.
In the contract of matrimony the husband possesses the right of
receiving enjoyment by the marriage formula (contract) and becomes the mahram (ritually intimate) with his spouse.
The question that is raised now is that in case a forbidden
condition that does not contradict the necessity of the contract whether or not
invalidates the contact.
Some jurisprudents hold that the forbidden condition does not
invalidate a contract, although it contradicts the Book of God, and also is
invalid (fasid); but in the event that a condition
contradicts the explicit text of the contract (neither opposing the general
application of the contract nor its requisite) there is not controversy that
such a condition is both invalid and invalidating the contract.
For instance, the two parties stipulate within the deal
contact that a party sells a house to the latter party provided that the buyer
does not become the owner of the house! Or on the condition that the vendor
does not own the price of it!
Such a condition that contradicts the necessity of the contact
is both invalid and invalidating the contract.
Another instance is that, one leases a trade or
a residential unit provided that the lessee does not own its profit, and that
at the same time the landlord does not possess the rent!
The third instance is that one lends a vessel on the
condition that the borrower does not have the authority of exploitation.
The fourth instance is that the contract of matrimony
is arranged is such a way that it is conditioned within it that the spouses do
not become ritually intimate (mahram) with one
another.
All of the above conditions contradict the necessity of the
contract and consequently are invalid and they invalidate the contract.
Some (of the jurisprudents say that) the issue of wilayat al-Faqih is same as these
cases, that is, the people sign a contract (election) with the fully qualified
jurisprudent and undertake mutually and vote that they do not possess the vote
and will not interfere the contracts. For, the meaning of the wilayah is that all the authority is in the hands of
the wali-e faqih,
and the people are under the guardianship, are interdicted, and have not the
authority to comment.
And they conclude that these kinds of referendums and elections
are invalid and necessarily invalidating, for, they contradict the content of
the contract and the mutual undertaking, and consequently, the referendums held
so far are invalid and invalidating, and the government in which they resulted
in are invalid. And also, all kinds
of the deals whether local or international are invalid.
The Answer
It is true that a condition that contradicts the
necessity of the contract/pact is invalid (fasid) and
corrupter (mufsid), but two points should not
be neglected: First, the term wilayah having
the meaning of supervision and being a wali is
separated from the wilayah discussed under the
topic of interdiction (hajr) in the Islamic
jurisprudence.
If one speaks about the issues of the Islamic
government, the Islamic policy, and the trusteeship of the jurisprudent (wilayat al-faqih), he should
totally dispense with the wilayah
(guardianship) upon the immature, the dead, and so on and should just think of
the verse (Quran: V, 57).
Whatever this holy verse carries as a message,
it is true first for the prophets, then the Infallible Imams, and then their
special deputies, such as Muslim ibn Aqil and Malik Ashtar, and then for those who are appointed generally by
them, like the late Imam Khomeini.
Secondly, both the opponents and pro-wilayat al-faqih have accepted
two instances of wilayah of the fully
qualified jurisconslut.
The first instance is that when the people
accept an authority (that is a leading jurisprudent), do they select him as
their attorney (wakil) or as wali
in fatwa?
Indeed, the religion has appointed the fully
qualified jurisprudent for this position, whether the people refer to him or
not, but to put this appointment in practice depends upon the acceptance of the
people.
Many a time a fully qualified jurisprudent that
can be a leading faqih (jurisprudent), but since he
has not made himself known, or the people do not know him by one reason or
another, therefore, his authorization will not be put into practice, at the
same time another faqih having the same scientific
conditions my be welcomed and accepted by the people.
Now the question is that such a person that is
recognized as the authority, whether is the attorney
of the people, or he has been appointed this position by God, but since the
people have found such a merit and quality in him so, they have referred to
him. Therefore, such a person cannot be their attorney at all, for the attorney
does not posses any authority, unless the people entitle it to him by
establishing the contract of empowering. The approval of the power of attorney
is conditioned to the establishment of empowering by the people, while
concerning the approval of being an authority it is not like that the people
and the followers submit him the office of being an authority.
Another instance is the judgment of the fully
qualified jurisprudent during the period of occultation. It has been acclaimed
by all, that the fully qualified jurisprudent has the right of judging. Is the
fully qualified jurisprudent in the position of judgment the attorney of the
people? Has the religion of Islam appointed him judge? [The true answer is
that] he is the judge, and the people give no positions to him. If the people
refer to him and accept him, then his judgment will be put into practice.
These two instances are not of the kind of the
power of attorney, rather are a part of trusteeship (wilayah),
that is the fully qualified jurisprudent being an authority, is the wali of decree (fatwa) and not the people's
attorney (wakil) in issuing a decree (ifta) for his followers. Such an authority
should be submitted obligatorily. The same is true for the fully qualified
jurisprudent that is a judge, the difference is that one of them
informs/advises (ikhbar) while the latter
establishes (insha'); like a fully
qualified jurisprudent that has occupied the position of judgment and issues
decrees.
So the people refer to positions that the
religion has granted/allocated to the fully qualified jurisprudent and realized
them and then recognized them. If the fully qualified jurisprudent has a
worldly reputation like Shaykh Ansari
then there will be no need to testimony/certification of two just witnesses.
The followers can refer to him directly. In case
several scholars equal from the aspect of justice, or one was more
knowledgeable than the others but was not as famous as the rest, then the
people consult the experts to know who is the most knowledgeable or who equal
with one another. So in these cases when one refers to a scholar in fact he has
recognized his authority position. It is not true that he has given that
scholar the authority, therefore, that attorney of the people in giving decree
or in judgment.
This acclamation of the people is not power of
attorney; rather it is the acceptance of wialyah.
If, for instance, the people accept/recognize
the authority of a person provided that to be silent and submissive in lieu of
his jurisprudential decrees, is this condition opposing the exigency/necessity
of this pact?
If some people accept the position of judgment
of a fully qualified jurisprudent and declared within their acceptance that
they trust (in) the judgment and the sovereignty of his juridical system,
provided that they be silent and submissive against
the decrees given by him, then is this condition opposing /contradicting the
exigency/necessity of such a pact?
If the people selected a group as experts to
introduce to them the competent leading authority, are these selections and
voting contradicting the recognition /acceptance of the authority and being
silent and submissive before the decrees (fatwas)
of the authority?
So those who oppose the wilayat
al-faqih, accept two samples of the fully qualified
jurisprudent, but dispute in the third sample, that is the trusteeship (wilayah) upon the community and the policy declaring
that this kind of voting to a jurisprudent is equal to lack of voting, and that
this condition contradicts the necessity of the pact.
(As the answer) we say that when the fully
qualified jurisprudent became (was elected/designated as) the waali of the community, and the elite wise and intellectual
people acclaimed his wilayah, and declared
that the (Divine) command (Quran: V, 57) is
originally for the Infallible Imam, and then for his special deputy, and in the
event that the special deputy was not available, then it will be for the common
deputy in the third rank. The also state that they have accepted the wilayah of them (the Imam or his deputies) to act
according the Book of God and the Sunnah of his
Apostle. Does this indicate that whatever business/deals that jurisconslult has made, or the contracts and pacts he has
established are of the interfering types and consequently invalid?!
The fact is that, the people have accepted the
religion and believe that they have no votes opposite it, and since they are
elite they say that they have not another statement in front of God, and they
do not practice independent reasoning (ijtihad)
against the clear terms (nass).
When a person accepts the religion, this
acceptance is the truth. When he verified the religion and realized that it is
the truth, and then accepted it, therefore, admits that the fatwas
of the religion are the truth and his will does not contradict the truth, and
that he does not possess any ijtihad in
front of the nass.
The believers that acclaimed the wilayah of Imam Ali, the Commander of the Faithful,
did they accept him as their attorney? Or they recognized him as their wali?
God, the
Exalted, said to the Prophet: (O' Our Apostle Muhammad!)
Deliver them what hath been sent down unto thee from thy Lord
(Quran: V, 70)
He communicated the message of God to the people
saying: " For whomever I am the authority and
guide, Ali is also his guide and authority."
The people accepted saying: "May this
position be pleasing to you O' the Commander of the Faithful!"
And gave him their allegiance.
Did they designate him as their attorney, indicating that the Imam had no
positions without the vote of the people?! Or did they recognize him as their wali? If one holds that Imam Ali was the attorney of
the people, it means that so long as the people have not voted to him and have
not recognized, he will have no rights, while, if we hold that he was appointed
by God, then he has the right and authority of guardianship (and supervision),
and (consequently) the people recognized this fact and accepted it.
Therefore, (it is concluded that) any kind of
the contracts the Islamic waali signs or it is
signed on his behalf, is in accordance with a good will of the people, for the
people recognized that this school of thought is true, and voted in its favor,
and appointed one who knows this school of thought well, believes in it, and is
the executer of it, as the responsible of this task; indeed, they have accepted
his responsibility, so, it is not the case of empowering him. Such a condition
never contradicts the necessity of the contract.
It is concluded that, firstly, the power of
attorney (wikalah) differs from trusteeship (wilayah); secondly, the wilayah
is divided into several kinds, thirdly, the wilayah
that is propounded in the issue of governing and ruling is not of the kind of wilayah discussed in the chapter of "the
interdiction", rather it is of the kind discussed in the holy verse
fourthly,
both positions are true for the jurisprudent , but one is (given) originally
while the other one is subordinately and as a deputy.
Therefore, if one states that the fully
qualified jurisprudent is the Imam's attorney (wakil),
it is true, and if he states that he (the jurisprudent) is the attorney, or the
deputy of or appointed by Imam Mahdi, it is also
true; but if he states that the fully qualified jurisprudent is an attorney on
behalf of the people or is appointed by them, this would be a false statement.
The difference among these four matters is that,
the Infallible Imam and (particularly) Imam Mahdi-
may our lives be scarified for him - can do two tasks:
One option is that he appoints a person to
represent him (the Imam) and to act as his attorney to do certain tasks; it
means that he becomes the Imam's attorney and deputy; this is true. Another
option is that he establishes the trusteeship (wilayah)
for a person. For instance, in the event that there are endowed properties that
are lacking of a custodian (due to his death or because a custodian has not
been appointed for it so far), the Imam appoints a custodian for it. This is
the establishment of trusteeship (wilayah) for
him.
In case, an authority (a leading mujtahid) empowered a person or persons, once this
authority dies, the power of attorney of his attorney will be nullified, for,
the validity of the power of attorney is dependent upon the life of the client
(i.e. the authority); while if that authority appoints a person as the
custodian of a certain endowed property, the custodianship of him will endure
continuously even after the death of that authority. So,
to empower is different from the establishment of trusteeship.
