Questions on Jurisprudence (Masa'il Fiqhiyya)

CHAPTER FIVE: THE WIPING OR WASHING OF THE FEET IN THE WUDU:

The scholars of Islam have differed on the type of purification of the feet [required] for the parts of the wudu. The jurists of the masses have stated (and amongst them are the four Imams), that it is obligatory to specifically wash [the feet]. Dawud b. `Ali and al-Nasir li'l-Haqq, who are amongst the Imams of the Zaydiyya, have stated it is obligatory to combine between the washing and the wiping, whereas some of them have said one can choose between the two. The Imamis (in following the Imams of the pure family) have said it is obligatory to wipe.

The proof of the Imamis

[The proof] is the saying of the Most High: "And wipe your heads and your feet up to the anklebones."(5:6)For us, the reasoning as explained by Imam al-Razi is sufficient. When arguing based on this verse he stated in detail saying: "The proof of those who say it is obligatory to wipe is based on two famous readings in the [Qur'anic] statement `and your feet' (verse 5:6). Ibn Kathir, Hamza, Abu `Amr and `Asim - based on the reports of Abu Bakr narrated from him - have recited it in the genitive case; Nafi', Ibn `Amir and `Asim have recited it, according to the tradition reported by Hafs from him, in the accusative case." He (al-Razi) said: "So we say, as for the recitation in the genitive, it would necessitate the feet [in the verse] to being a conjunction with the head. Therefore, just as it is obligatory to wipe on the head, similarly [it is so] on the feet." (Al-Razi said): "If it is said why is it not permissible to claim that the [word feet] ends in the genitive case due to the rule [stating] that the genitive case is inserted based on what closest to it as it is in the saying `the hole of a lizard is destroyed' and `the leaders of the people are wrapped up in a garment?'

We say: This is invalid for several reasons: 1) The [rule of the] genitive case being inserted based on the word closest to it is considered to be a mistake which is tolerated due to the needs of a poem, whereas the speech of God is necessarily above that. 2) The above rule is only applied where the possibility of confusion is safeguarded against like the saying "the hole of a lizard is destroyed" for it is necessarily known that that destruction is not attributed to a lizard, rather, it is to a hole, whereas there are no safeguards against confusion in this verse. 3) The [rule of the] genitive case being inserted based on the word closest to it is applicable [only] when there is no conjunction; as for when there is a conjunction the Arabs do not use it." And al-Razi [further] said: "As for the reading [of the feet in the verse] being in the accusative case, they have said that this also requires the wiping and that is because of His saying `and wipe your heads,' the [word] head [in the sentence] is in an accusative position, due to the command `wipe' - as it (the head) is the object [in the sentence], but it is [written] in the genitive case due to the preposition ba. So if `the feet' are conjoined to `the head' [in the sentence] then we are allowed to read `the feet' in the accusative case, as it is conjoined to the position of the head [which is in the accusative case in the sentence]. We are [also] allowed to read it in the genitive case as a conjunction (to the apparent preposition)." He said: "If this is clear, then we say it is clear for us that it is permissible that the `amil (a word governing another in syntactical regimen) of the accusative in His saying `...and your feet....'be His saying `wipe.' [However] it is permissible that [the 'amil] be His saying `wash' but if the two `amils are combined on one word, then the closest one is the best [to use]." He said: "It is obligatory that the 'amil of the accusative in His saying `and your feet' be His command `wipe.'" (Al-Razi said): "So it is clear that the recitation of `and your feet' in the accusative also leads to the wiping [of the feet].

Then they [objected] saying it is not permissible to defend it (the wiping) by traditions because all of them are in the form of singular traditions and the abrogation of the Qur'an by a singular tradition is not allowed." This is his speech word to word, nothing is left out, but he (al-Razi) further said: "There are many traditions reported on the obligation of washing. Washing [the feet] includes the wiping whereas the opposite is not the case. Therefore washing is closer to observing caution. So it is necessary to opt for it (washing).On this basis, it is necessary to be sure that the washing of the feet takes the place of the wiping" etc. I say, as for the traditions on washing, you will know the view of the Imams of the ahl al-bayt and their friends about it soon, God willing.

As for his saying that the washing includes the wiping, this is a clear mistake, rather, they are two [separate] entities linguistically, according to custom and theshari` a. It is necessary to note that washing the feet cannot take the place of wiping them. Imam al-Razi stood between two opposites; the contradictions between the fixed Qur'anic verse and, in his view, the authentic traditions; he therefore confused himself by saying that the washing includes the wiping and that it is closer to the most cautious [course] and that it takes the place of the wiping. [In doing this] he thought thereby that he combined the verse and the traditions. One who examines this defence of his will find him in confusion. Had there not been a clear verse indicating the obligation of wiping on the feet, he would not have needed to make the washing take the place [of the wiping] so examine and contemplate carefully.

A group of the intelligent scholars of fiqh and Arabic trod thispath, amongst them was the jurist and researcher Shaykh Ibrahim al-Halabi who studied the verse on the wudu in his book called "Ghaniyah al-Mutamla fi sharh maniyya al-musalli 'ala madhhab al-Hanafi." He said: "It (the feet in the aforementioned verse) has been recited by the seven [reciters] in the accusative and the genitive cases; the famous opinion is [to recite] it in the accusative case, conjoined to `on your faces' and the genitive case is inserted on that word which is closest to it". He (al-Halabi) said: "And the correct view is that the feet are conjoined to the head in the two recitations, [it can be recited in] the accusative due to the position in the sentence (as it is the object in the sentence) and they (the feet in the statement) can be recited in the genitive case due to the preposition." He continued: "That is because of the prohibition of the conjunction [of the feet] to `on your faces' because of the separation between the conjunction (`atf) and that which it is conjoined to (ma`tuf alayh) due to a foreign sentence (which is `wipe your heads')." He said: "And the rule is that there should be no separation between the two (the conjunction and what it is conjoined to) by a word let alone by a sentence. We did not hear in pure Arabic that I hit Zayd and I passed by Bakr and `Amr with a conjunction of `Amr on Zayd. As for the genitive case being inserted based on the word which is closest to it, it can occur rarely in adjectives like the saying of some of them: "This hole of the lizard is destroyed."

And amongst those who travelled this clear path is Abu'l-Hasan al-Imam Muhammad b. `Abd al-Hadi known as al-Sanadi in his commentary on the Sunan of Ibn Maja. He says (after being sure that the apparent meaning of the Qur'an requires wiping): "The wiping is the apparent meaning from the book because reciting it in the genitive case is apparent in it; however, imposing the recitation in the accusative case by making it a conjunction to the position [in the sentence] is better than preferring the recitation in the genitive case over the accusative case as stated by the grammarians." (He said): "Also, by doing this, we are free from the separation by a foreign (sentence) between the conjunction and what it is conjoined to. So the apparent meaning in the Qur'an is the wiping." These are his words but, like others, he deemed it necessary to interpret the Qur'an [according] to the traditions which explicitly talk of the washing."

Concerning this verse, Imam al-Zamakhshari has philosophized it in his al-Kashshaf [saying]: "The feet are amongst the three parts which are to be washed by pouring water on them; they (the feet) are the place one expects the prohibited extravagance of water [to be practised], hence it was conjoined to the third part of the wudu [which is] to be wiped; it was conjoined to it (the head) not for the sake of wiping but to indicate the necessity of moderation when pouring water on the feet." He said: "And the verse states `to the anklebones' as the final point [in washing] to remove any thoughts of those who might think that they (the feet) are to be wiped since no limits have been imposed on the wiping in theshari` a."

This is the reasoning offered for the conjunction of the feet on the head and for mentioning the limits [of wiping] on the feet. As you can see, nothing in it is derived from theshari` a rulings from the fixed verse. Neither is there anything concerning it in the exegesis, nor is there any verse which proves it (his view). He is merely trying to interpret the verse according to his views rather than deriving his views from the proofs. He has exceeded the limits in hisspeculations, nobody pays heed to him except one who is convinced of washing the feet based on primary juristic rulings. As for it being a point of contention, it is not to be paid heed to especially after their admission that the apparent meaning of the book indicates the obligation to wipe. Sufficient for us is the Arabic [grammatical] rule that the feet are conjoined to the wiped head, this is according to the agreement of the sources and juridical rulings.

A view on the traditions of washing the feet

The traditions on washing [the feet] are of two types, there are those which do not indicate it, like the tradition of `Abd Allah Ibn `Amr b. `As. He says - as reported in the two Sahihs that: "We lagged behind the Prophet on a journey we travelled with him. We caught up when the time for the `asr prayer had set in. So we started wiping on our feet and he said: "Woe to the heels from the fire of hell"."

If this [tradition] is correct it would lead to the wiping since he (P) did not forbid it (the wiping) rather, he emphasized it for them as you see. He merely rebuked them for the filthiness of their heels, no wonder, amongst themwere Arabs who were completely ignorant; they were urinating on their heels especially when travelling. He threatened them with the fire so that they would not pray with their impure heels.

Amongst these traditions are those which indicate the [obligation of] washing like the tradition of Humran, the client of `Uthman b. `Affan. He said: "I saw `Uthman pouring out [the water] on his hands from his vessel and he washed them three times. Then he put his right hand for the wudu then he rinsed, inhaled then he went away." It has been reported in it that he then washed every foot three times and he said: "I saw the Prophet performing the ablution just like my ablution." Similar to this is the tradition of `Abd Allah b. Zayd b. `Asim al-Ansari and it was said to him: "Perform the wudu for us like the wudu of the Prophet of God." So he asked for a vessel and he turned it over his hand and, at the end of the tradition, it states: "then he washed his two feet up to the anklebones." Then he said: "This was the wudu of the Prophet of God" and other traditions reported along these lines. There are objections for many reasons: 1)They are contrary to the book of God, the Almighty and Glorious, and [contrary] to what the Imams from the pure family have agreed on. The book and the family are the two weighty things of the Prophet of God which will never ever separate and the community will not go astray if they stick to the two, so whatever contradicts them should be discarded.

What is reported from the savant of the umma and the receptacle of the book and thesunna , `Abd Allah b. `Abbas is sufficient to refute the [act of] washing and the weak traditions [on washing]. He was arguing for the wiping and would say "Allah has imposed two washings and two wipings, don't you see that when He mentioned the tayammum, He imposed two wipings instead of the two washings and he left the two wipings of the wudu [as they were]?"

He used to say that the wudu consists of two washings and two wipings and when he learnt that al-Rabi`, the daughter of Ma'udh b. `Afra al-Ansariyya, claims that the Prophet used to do the wudu at her place and he would wash his feet, he came to her and asked her about it. When she related it to him he said - not verifying but repudiating and arguing - "the people refused [everything] but the washing whereas I do not find in the book of God anything but the wiping."

Secondly, if this (obligation of washing in the ablution) was true, it would have been successively transmitted because the need to know about the purification of the feet in the wudu is a general need for the men and women of the community, for those who are free and those who are slaves. It is a basic need for them every day and night. If [the command] "do not wipe" was understood by the ruling of the verse those who follow the shari'a (mukallafun) would have known it at the time of the Prophecy and after it. It would have been a certain thing between them; these traditions would have been successively transmitted from the Prophet (P) at all times and in all cities and there would have been no opportunity to refute or doubt them. Since this is not so, the weakness of those invalid and baseless traditions becomes clear to us.

Thirdly, the traditions on the type of purification of the two feet are contradictory. Some of them require the washing like the traditions of Humran and Ibn `Asim, and, as you have read, some of them indicate the wiping like the hadith which al-Bukhari reported in his Sahih. All of this has been reported by Ahmad, Ibn Abi Shayba, Ibn Abi `Umar, al-Baghawi, al-Tabrani and al-Mawardi, all of them with a chain of reliable transmitters. From Abu`l-Aswad and `Ibad b. Tamim on the authority of his father who said: "I saw the Prophet of God performing the ablution and wiping on his feet."

Similarly, Shaykh (Tusi) has reported an authenticated tradition from Zurara and Bukayr, the two sons ofA` yan, from al-Baqir (A.S.) that he narrated the wudu' of the Prophet of God. He wiped his head and his feet to the anklebones with his palm and he did not take fresh water. It is reported from Ibn `Abbas that he narrated the wudu of the Prophet of God (P) and he wiped - as reported in Majma' al-Bayan - on his feet. When the traditions contradict each other, the source of reference is the book of God, the Almighty and Glorious, we cannot deviate from it.

The view on their argument here based on Istihsan

Sometimes the masses argue for the washing of the feet, they see it as most suitable for the feet rather than wiping [the feet], just as wiping is more suitable for the head rather than the washing because mostly, the filth on the feet cannot be cleaned except by washing them as opposed to the head, it can be cleaned mainly by wiping.

They said that there is nothing to prevent the benefits, as understood by the intellect, to be causes for the prescribed worship. Thus the law looks at [an act] in two meanings: the general benefit and the benefits derived from that [act of] worship. By the general benefit they mean the benefits that can be sensed [by the intellect] and by [the benefits] of worship they mean what refers to the purification of the soul.

I say: We believe that the lawgiver was lenient to His slaves in everything that He prohibited them from, unless where there was corruption for them. Despite that, He did not impose a single shari'a ruling on them nor did He command them to do anything unless it was to their benefit. He did not make these rulings dependent on the slaves' views of the benefits andcorruption, rather, He imposed the rulings on them with strong proofs which He prescribed for them. He (Allah) has not given any alternative to them nor has He prescribed anything equivalent. The first source of those rulings is the book of God, the most Mighty and Glorious, in which He has commanded the wiping of the head and the feet in the wudu, so it is essential to abide by His ruling. As for the cleanliness of the foot from filth, it is necessary to guard against it before wiping on it acting in accordance to special proofs, which show that it is a prerequisite that the parts where wudu is done must be pure before starting it.

Perhaps the washing of his feet by the Prophet of God (P), as reported in the traditions, was due to this reason. Maybe he did it to cool his feet or because he was intense in observing cleanliness after completing the wudu and God knows best.

Notice

Ibn Maja has reported concerning the washing of the feet in his Sunan from Abu Ishaq on the authority of Abu Hayya, he said: "I saw `Ali doing the wudu and he washed his feet to the anklebones and then he said: `I wanted to show you the purification of your Prophet (P)'" When he completed this citing tradition, al-Sanadi said in his comments on the Sunan: "Since the washing has been narrated from `Ali, this is a major refutation against the Shi`a who believe in the wiping of the feet." He further said: "Therefore the author has mentioned it on the authority of `Ali, and has started the chapter with it. The author has done well and he excelled in reporting the hadith of `Ali in this chapter, may God reward him for that." He said: "The apparent meaning from the Qur'an necessitates the wiping as has been reported from Ibn `Abbas but it is obligatory to interpret it as referring to washing." These are his words, may God forgive him, Imam Ibn Maja and all the scholars of the masses. They know that this tradition is invalid because its chain of transmission is invalid due to several reasons.

Firstly, Abu Hayya, the reporter of this tradition, is completely unknown. Al-Dhahabi mentioned him in the section of the patronymics (al-kuna) in his Mizan and has stated that he is not known. Then he cited Ibn Madini and Abu Walid al-Fardi saying that he (Abu Hayya) was an unknown person. Then he said: "Abu Zar`a said he is not mentioned." I say I have investigated Abu Hayya extensively and I have not found a discussion except that it mentioned him as an unknown person; perhaps some fabricators of traditions have fabricated him, and God, the Almighty, knows best.

Secondly, this tradition is only reported by Abu Ishaq. He grew old and he used to forget and confuse traditions so people abandoned him. Nobody except Abu al-Ahwas and Zuhayr b. Mu`awiya al-Ju`fi narrated from him, and so people found fault with him because of that. No wonder, if a traditionalist mixes up [traditions], all his traditions which are not known to have been transmitted before his becoming confused become invalid; [this is applicable] whether it is known that it has been reported after his confusion (like this tradition) or the date of the tradition being reported is not known. [This is] because general knowledge in doubtful specific circumstances necessitates keeping away from all the peripheral matters as has been established in usul al-fiqh (the science of deriving juridical principles).

Thirdly, this tradition contradicts established traditions from the Commander of the Faithful and from his sons, the ahl al-bayt of the Prophecy and the place where Prophecy was revealed and the frequenting place of the angels and where revelation was revealed; it also contradicts the book of God, the Almighty and Majestic; so let us discard it.

To the two anklebones

The two anklebones are mentioned in the verse of the wudu, they are the joints between the legs and the feet, according to the ruling of an authentic tradition reported by Zurara and Bukayr, the two children of A`yan. They asked Imam al-Baqir about it. This is clear from al-Saduq, he has also reported from them. The Imams of the languages have also stated that every joint of the bones is an anklebone.

The masses have stated that the anklebones here are the two bones which grow on the side of every leg. They have argued that if the anklebone is the joint between the foot and the leg, this would mean every leg has one anklebone so it would have been necessary for God to have said "and [wipe] your foot to the anklebones." Just as it is clear that for every hand there is an elbow, He said "and your hands with the elbows."

I say if He had stated with the two elbows then it would have been correct without any doubt and the meaning becomes "and wash your faces and your hands with the two elbows of all of you and wipe your heads and feet to the two anklebones of all of you." Thus [using] the dual and plural of the two words in the verse are equivalently correct. Similar is the case if one is mentioned in the plural and the other in the dual. Perhaps that would be required for artistic expression.

This only applies if we talk of one anklebone in the foot, but if there are two anklebones in every foot then there is no point for them to dispute. Anatomists have agreed that there is a bone which is circular like the anklebone in the cattle and the sheep under the bone of the leg where the joint of the foot and the leg [is located], this is also called the anklebone. Based on this, the wiping of every foot ends at the two anklebones and they are the joint itself, with a round anklebone under it. In [using] the dual for the anklebone in the verse and not using dual for the elbow is a subtle point and an indication; something which only anatomists knew, so Glory be to the one who Created, the One who is most Knowledgeable, and the most Wise.

The wiping on the slippers and socks

The jurists of Islam have differed greatly on the [question of] wiping on slippers and socks, [differences] which can not be covered in this haste. In short, the discussion on it is connected with the question of its permissibility and non-permissibility and on limiting and defining its position. It [also] pertains to its characteristics, its timing,its prerequisites and [on what] destroys it.

As for it being permissible, there are three views:

1) Always allowed whether one is travelling or at home.

2) Permissible when travelling, not when at home.

3) Not allowed at all as it has not been regulated in religion. The three views are narrated from the first generation and from Malik.

As for defining its position, they have also differed on it. There are those who say that it is obligatory to wipe the upper part [of the slipper] and that the wiping on the lower part is recommended. [Others] state that it is obligatory to wipe the outer and the inner parts. The third view is that it is obligatory to wipe the outer rather than the inner part, for the wiping of the inner part is neither obligatory nor recommended. There are those who say that one can choose between wiping the inner and the upper part, whichever you wipe becomes obligatory.

As for the type of position, those who say [it is necessary] to wipe on the slippers have differed on the wiping on the socks, some have allowed it others have disallowed it.

As for the description of the slipper, they have differed on the [permissibility] of wiping on torn slippers. Some have allowed wiping on it as long as it can [still] be called a slipper even ifit's tear is excessive. Amongst them are those who have not allowed the front part of the slipper to be torn whereby the foot, however little, may be visible. Some of them have allowed wiping on it provided the tear is little.

As for it's timing, they have disagreed on it [too]. Some have said there is no time [fixed] for it and that the wearer of the slippers can wipe on them as long as he has not removed them or he has not become ritually impure. Some have stated that there is a special time for that (the mash) for those at home, those travelling have a different time, they have also differed on the description of a journey and [definition] of the distance.

As for the conditions of wiping on the slippers, it is that when wearing the slippers the feet must be pure by performing the ritual ablution (wudu). This is a condition which most of them have imposed. However, it has been narrated from Malik that this is not a condition. They have disagreed on the question of one who has washed his feet, worn his slippers and then completed his wudu; is his washing of the feet sufficient for him before he wears them or must he wipe them? They have two views on this.

As for different [things] breaking the [act of] wiping, one of them is the removal of the slippers. A group has stated that the purity remains if he removes the slippers until something which breaks the ablutionoccurs, he does not have to wash his feet. Others have said that his purity is broken by his mere removal of the slippers. Others still have said that his purity remains if he washes his feet after removing his slippers. If he prays without washing them then he has to repeat the prayer after washing them. [They have] other differing views and contradictory verdicts on that which pertain to the wiping on the slippers, it is not our intention to discuss the details now.

As for the Imamis, following their predecessors - following the Imams of the pure family - [their view] is that they do not allow the wiping on the slippers, whether that be at home or on a journey. For our proof, the saying of the Almighty is sufficient. He said: "And wipe your heads and feet to the anklebones." This [verse] imposes the obligation of wiping on the feet themselves. Where did the wiping on the slippers come from? Has this verse been abrogated? Or is it ambiguous? Never, on the contrary - and this is unanimously agreed upon - it is amongst the unambiguous verses which are [part of] the mother of the book. The exegetes are agreed that there is no abrogation in the chapter of Ma'ida (chapter 5) which includes the verse on the wudu except for one verse "Oyou who believe, do not violate the sanctity of the symbols of God (5:2)." Some of them have claimed that it, not other verses of the blessed chapter,have been abrogated.

As for the traditions which indicate the permissibility of wiping on the slippers, they do not prove anything according to our conditions. We have shown their weaknesses. Additionally there are [other] considerations:

1) They are opposed to the book of God, the Almighty and Glorious. It has been reported from the Prophet of God (P) that he said: "If a hadith is reported to you from me then compare it with the book of God. If it agrees to it then accept it, otherwise reject it."

2) They (the traditions) contradict themselves, therefore many differences have arisen amongst those authenticating them, acting on what they require, as you have noted. What we have indicated recently is that they have differed on their verdicts as they (the traditions) contradict themselves since they are the sources for their (the jurists') rulings.

3) The consensus of the Imams of the pure family (`Ali and his sons, the legatees) on the ruling of not permitting the mash (wiping) on any obstacle whether it be [in the form of] slippers, socks and shoes or other types [of materials], their traditions clearly contradict the traditions of the masses which indicate the permissibility of doing so. The ruling that is established concerning contradictory traditions is to prefer what agrees with the book of God, the Almighty,Glorious . This applies if they are equal as regards to their isnad and proofs. How can the weighty [thing] from the Prophet of God (P), the other half of the book of God, the most High, the ships of salvation of the umma and the door of [reducing the] burden ofit's sins and its [the umma's] safety from differences be equal [to these traditions]?

4) If this [wiping on the slippers] was true, then it would have been successively transmitted at all times and places. This is because the need to know the purity of the feet in the wudu is a general one - as we have said before - for the men and women of the umma. It is a basic need for them every day and night whether they are at home or on a journey. If the verse meant "not wiping" then those abiding by the shari'a would have known it at the time of Prophecy and after it. It would have been an established thing amongst them in all generations especially as it is coming in devotional worship whose meaning is not rationally derived. [The fact that] it is alien to the act of worship would necessitate it being well-known due to its strangeness. Since the matter is not so, the weakness of these invalid and baseless traditions becomes clear to us.

5) Assuming that this [wiping on the slippers] is correct, there should have been an abrogating [verse] to the verse of al-Ma`ida , since this is the last chapter that was revealed. By it, Allah perfected His religion and completed His blessings and He was pleased with Islam as His religion. Its obligations are obligatory to the day of resurrection; its prohibitions are forbidden to the day of resurrection. Just as the mother of the faithful, `A'isha, said to Jubayr b. Nafir - when he performed the pilgrimage and visited her - "O Jubayr, do you recite the Ma'ida?" He said: "Yes." She said: "It is the last chapter which has been revealed, what you find permitted in it then consider it as halal, what you find forbidden in it then prohibit it."

The masses stubbornly cling to the ruling of mash on the slippers [even] after its revelation due to the hadith of Jarir: He urinated, then he performed the ablution and wiped on his slippers. It was said to him: "Do you do this?" He said: "Yes, I saw the Prophet of God (P) urinating and then performing the ablution and wiping on his slippers." Muslim reported it and he also reported that this hadith surprised them because the conversion of Jarir was after the revelation of the Ma'ida.

I say: On the contrary, his conversion was before the revelation of the Ma'ida. The proof of this is his presence at the farewell pilgrimage with the Prophet of God. He (P) asked him on that day - as is in the biographical profiles of al-Isaba, reporting from the two Sahihs - that he should ask the people to hear [the sermon]. So his conversion must have occurred before that pilgrimage, and the revelation of the Ma'ida certainly did not occur before that.

Furthermore, al-Tabrani reported from Jarir - as reported in the profile of al-Isaba - he said: "The Prophet of God (P) said: `Your brother al-Najashi has died.'" The death of al-Najashi occurred before the revelation of al-Ma'ida for there is no doubt that he died before 10 A.H.

Al-Qastalani has another strange stubbornness: He says - about wiping on the slippers - the mash is not abrogated by the hadith of al-Mughira. The Prophet's (P) wiping on his slippers is clear in the battle of Tabuk and it was his last battle and the Ma'ida was revealed before it during the expedition of al-Marisi'.

I say: The expedition of al-Marisi' was also the expedition of the Banu Mustaliq, they occurred on the second night of Sha'ban in the fifth year, some say in the fourth year as is [reported] by al-Bukhari from Ibn `Uqba. Al-Nawawi also followed this in his al-Rawda. It has been said that it occurred in 6 A.H. After it, sura al-Ma'ida and many other chapters were revealed. The verse on tayammum was revealed during it (the expedition). This is the saying of the most High in sura al-Nisa' (chapter 4): "If you are sick or on a journey or if you go for a call of nature or if you have gone into your women and you do not find any water then perform the tayammum on pure earth and wipe on your faces and hands, God is most forgiving, kind (4:43)."

The report on this is established from `A'isha, it is reported by al-Wahidi in his book [entitled] Asbab al-Nuzul (occasions of revelations), so refer to it so that you are sure that al-Qastalani mistook the verse on ablution with the verse on tayammum. Moreover, we do not depend on al-Mughira andJarir, soon you will know what we have discovered about al-Mughira. Jarir had behaved with the legatees (of the Prophet of God) in a manner which makes us doubt about him too.

6) The mother of the faithful `A'isha - despite her status with the sunna and her astuteness and despite her location where revelation descended and was legislated - would strictly forbid the wiping on the slippers. Ibn `Abbas - he was the scribe of the umma and the receptacle of the book andsunna , this cannot be denied - was also amongst those who severely refuted it. Both of them refuted it to the utmost possible degree. Why don't you examine her statements with me? [She said] "Because cutting my feet is more beloved to me than wiping on the slippers." He (Ibn `Abbas) said: "Wiping on the skin of a donkey is more beloved to me than wiping on the slippers."

Can you reconcile this form of rejection with those traditions?Never, given her status, they can never be reconciled. If these are the statements reported orally from her, by those who know the lean and fat [of traditions], how is it possible for us to rely on them given our remote distance from them (the traditions) over centuries and generations?

One who examines, without prejudices, the repudiation [of mash] by those close to the Prophet of God (S.A.W.) like his wife and his cousin and all the guided leaders from hisfamily, he would be compelled to doubt those traditions.

From this, you will know that the claim that they (the traditions on wiping on the slippers) have been successively transmitted is extravagant and [mere] speculation. Can they reach the level of tawatur (i.e. successively transmitted by many chains of authority) whilst these pious notables be ignorant? Or are they ignorant of the traditions? Glorybe to you, this is a great accusation.

If they were successively transmitted, then `Abd Allah b. `Umar would not have refuted them nor would Imam Malik in one of the two traditions reported from him, nor would any other upright, upright believing predecessor refute it.

Those who have done complete injustice have said: "I fear unbelief for one who does not wipe on his slippers." It has been seen that the mash on the slippers is not a part of religion, nor is it amongst the essentials ofit's derivatives nor is it something which the book has imposed nor is it - by the consensus of the umma - what the sunna has made obligatory. Rather, it is merely a dispensation for a part of the Muslim community. Is there any blame for one who does not practise it [acting instead] in accordance with what the verse on wudu has imposed? The people of the qibla have agreed on the correctness of the acts which it (the verse) dictates and have agreed on the permissibility of the prayer by that. On the other hand, the correctness of the wudu, the removal of uncleanness and the permissibility of prayer by it (i.e. by wiping on the slippers) is a point of dispute between the Muslims. Can disbelief be feared from one who observes caution? What is your view of `A'isha, `Ali, Ibn `Abbas and all the ahl al-bayt since they did not observe the wiping on the slippers, O Muslims?

The mash on the turban (`imama)

Our scholars have stated that wiping on the turban is not allowed. This is the view of al-Shafi`i, Abu Hanifa and Malik. Imam Ahmad b. Hanbal, Abu Thawr, al-Qasim b. Salam, al-Awzai and al-Thawri opposed this. The difference is reported from others too. They have stated that it is allowed by drawing an analogy with the [mash on] slippers and acting according to the hadith of al-Mughira b. Shu`ba that the Prophet of God (P) wiped on his forelock and on his turban. Other chains of transmission [state] that he had wiped on his turban, the forelock is not mentioned.

The book of God, the Almighty and Glorious, "and wipe on your heads" and the practice of His Prophet of wiping on his (P) forelock are sufficient for us. This is certain, it does not require elucidation. The consensus on it has been formed both by it being narrated and through direct investigation (muhassal), thanks be to God, the Lord of the Universe.

There is no proof for them in drawing an analogy with the slippers for the religion of God cannot be known by analogy. Moreover, the mash on the slippers is forbidden, as you know.

As for the hadith of al-Mughira, it is invalid, Muslim has reported it.Concerning the hadith, Abu `Umar Ibn `Abd al-Barr has stated that it is a weak tradition. I say: Perhaps Abu Hanifa, al-Shafi`i and Malik did not attach importance to it as they deemed it to be weak too.

Al-Mughira had a habit of deception, misleading people, inconsistency and trickery. He was immersed in diseases, submersed in lust and [indulged in] outbursts of treachery and transgression of the limits [imposed] whenever he liked and disliked especially with those enemies of the family of Muhammad (P) who follow them and those friends of God and His Prophet who had enmity towards them.

He became a Muslim to spare his life from the Banu Malik and that was because he came with a group of their notables to Ceaser when he was in Alexandria. The Malikis succeeded in getting a gift from the king whereas he did not. He was overcome with greed and jealousy towards them so he invited them for drinks and they agreed to accompany him. He made them drink until it affected their senses. He turned against them and killed all of them, and he appropriated their wealth. Since he did not feel safe from [the vengeance of] their families he joined Islam. He came to the Prophet of God (S.A.W.) when he was in Medina. He entered to see him and testified that there was no god but Allah and that Muhammad was the Prophet of God. As was his practise with the believers and hypocrites, the Prophet accepted his Islam. When the property of the Banu Malik was presented to him, he refused it. It was proper for him to accept it since it was from those who had waged war and they had seized it unlawfully, [property] which Allah, the most High, did not forbid [him to take]. However, since that was taken by deceit, his sanctity did not allow him to accept it, so he made his (al-Mughira's) property copious for him.

This was hisIslam, it gives you a picture of his principles and shrewdness. In a famous story of the events of the year 17 A.H., Abu Bakra - he was amongst the prominent companions - and his companions testified against him for acts which would require punishment. How can we compare the wise Qur'an with his traditions, O people of understanding?

Is there a limit to the wiping on the head?

Our scholars have ruled that there is no limit to the mash on the head, not for what one is wiping with (extent of fingers) nor what is being wiped, rather, what is normally called a wiping is sufficient even if that means the minimum of touching according to the 'urf (conventional usage of the term "wipe"). This is also the school of thought of the Shafi`is. The two Imams, Malik and Ahmad, and a group of others have maintained that it is obligatory to wipe on the whole head, whereas Imam Abu Hanifa has said it is obligatory to wipe a quarter of it with three fingers, if he wipes with less than that it is not sufficient for him.

Our proof is the saying of the most High: "And wipe on your heads," the meaning is [any form of] touching of the head. Just as this can be attained by embracing [the whole head] and by a quarter of it, it can [also] be attained by a minimum of what is [normally] called wipe even if it be by a part of the finger passing on a part of the head. There is absolutely no proof for what they have specified (a specific portion of the head). If He intended embracing [the whole head], the most Glorious would have said: "and wipe on your whole heads" just as He said "wash your faces." If His intention was a specific amount of wiping, He would have clarified it as He did with the washing of the hands when he said "with the elbows" and concerning the wiping of the feet He said "to the anklebones."

Session 8: An Elucidation of the Structure and Form of Government

Status of elemental and evidential definition

In this session our discussion is about the structure and form of the Islamic government. Along this line, I deem it proper to narrate a recollection from the Great Leader of the Islamic Revolution in Iran, Hadhrat Imam Khomeini (q ). During the beginning of the Revolution foreign reporters asked the Imam, “After overthrowing the monarchical government, what government and regime will you establish?” He replied, “A government like that of the Commander of the Faithful (‘a )”.

Defining and describing the Islamic government to reporters with a particular culture and social fabric and no mental preparation to grasp Islamic concepts in view of their fundamental differences with us in this context, required many hours. Yet, the Imam gave them a complete and convincing answer in one sentence, because by knowing the distinctive features of the government of the Commander of the Faithful (‘a )-which is known to both friends and foes, and to know which does not require much extensive study and examination-the model of our government could also be known.

This type of explanation and definition, i.e. evidential definition, is the simplest way of describing the nature of a thing to the masses because understanding intricate concepts is difficult for them, so by indicating external manifestations and samples, they understand better. For example, in order to explain electricity, we show them an electric light or an electric device. In this type of definition, the characteristics, properties and salient features of a thing are not mentioned. In the academic and scientific circles, however, the definition must be derived from the principal or secondary features which describe the genus and quality mentioned in logic. In this kind of definition, initially the general and broad meaning is mentioned and then the specific meaning that excludes other types.

Another way of identifying the nature of a thing is to consider the elements. That is, the essentials and features of a thing are examined and their totality serves as the definition of that thing. In view of the number and scope of the essentials and features, any person will conclude that any thing having those features has the nature under consideration.

Islam and theory of separation of powers

The macrostructure of the Islamic government and its basic features, or the Islamic theory on politics can be defined in one sentence. The Islamic theory on politics is: all aspects of politics and government are divine, and inspired by the Source of revelation. This point determines the Islamic nature of the system and government.

In describing comprehensively the Islamic government it is necessary to consider the theory of separation of powers mentioned in the philosophy of law. During the last centuries there were intense disputes and conflicts among legal philosophers over concentration or separation of powers. These were on whether all powers should be in the hands of an individual or

group, or powers should be separated from one another and every person or group should be concerned with only one power.

Finally, after the Renaissance, particularly after Montesquieu-who wrote a major treatise entitled “The Spirit of the Laws” (1748) in which he emphasized separation of powers-legal philosophers arrived at a consensus on separation of powers and their three divisions, viz. the legislative, the judicial and the executive. These were considered as the main branches of democratic and popular governments.1 For each of the powers a distinct realm and area was taken into account so that none of the powers was authorized to interfere and meddle in another’s domain and their independence officially recognized. After the separation of powers, a definition was presented for each of them. We shall briefly mention their functions below:

Legislative power

One of the important pillars of government is the legislative. In view of the continuous change in social life and the need to formulate appropriate laws for every change, a group of individuals sit together, and, after discussion and deliberation, enact laws and regulations for the management of society, which are official and binding.

2. Judicial power

After the codification of laws and their official recognition and accreditation, there is a need to consider a branch of government and apparatus to adapt general laws to particular cases, to identify rights and duties, and to remove differences and disputes. In case of a dispute among citizens, or among organs, or between the citizens and the government, as well as in relation to the violation of the rights of people, the only authorized agency to adjudicate, attend to and adapt laws to those cases is the judicial power. Mere ratification of laws in parliament cannot solve any problem, because in times of dispute and discord, everyone deems himself rightful and interprets the law in his favor.

3. Executive power

Undoubtedly, In order to achieve its objectives, society is in need of law, but all people do not observe the laws. In fact, there are various motives to violate them. The law needs an executive power which possesses sufficient clout to implement the rules and regulations. The executive power is expected to implement laws, deter violations and implement judicial decrees passed in judicial courts. Along this line, if naked force is needed to implement laws and punish violators and criminals, disciplinary forces can be employed.

We briefly stated the theory of separation of powers in democratic and popular systems. We do not intend to explain the Islamic viewpoint on the theory of separation of powers but we deem it necessary to note that in the Constitution of the Islamic Republic of Iran, the principle of separation of powers has been accepted, while the principle ofwilayah al-faqih , which emanates from the Islamic nature of the system, serves as the point of connection between the powers. Legitimacy of powers in the Islamic system lies in the Islamic and divine structure, and in a sense in their connection to

the Origin of creation, butwilayah al-faqih is the system’s link to God and its basis of legitimacy.

Once we talk about the enactment and implementation of laws in the realm of Islamic political system and claim that the aggregate of approved laws and rules should be Islamic and religious, we make it clear that Islam is concerned not only with issues pertaining to prayer and fasting, worship and supplication, but it is a comprehensive code of life that embraces social law, corporate law, civil law, commercial law, international law and other laws needed by society.

Thus, as principle and rule, we have accepted that Islam has social laws that bind the government to regard them as credible and strive to implement them. According to Islam if a government neither regards the laws of Islam as credible, nor strives to implement them, it is an illegitimate government.

Skepticism on alleged impotence of Islam in social administration

Here the expressed skepticism is that man is increasingly in need of ample new laws. Indisputably, in the text of the Qur’an, theSunnah of the Prophet (s ) and the sayings of the pure Imams (‘a ) not all the laws addressing the needs of the day can be found. Nowadays, man needs a set of laws whose subjects did not exist during the early period of Islam, for which specific rulings need to be issued.

For example, let us consider the laws pertaining to airspace and the air jurisdiction of countries. Does an airplane have the right to enter the air jurisdiction of another country with the permission of its authorities or not? Such laws basically do not exist in the Qur’an, the Prophet’sSunnah and sayings of theAhl al-Bayt (‘a ) because at the time, there was no airplane to be discussed.

The same applies to traffic and driving rules as there was no car at the time as well as laws on seas and outer space and other subjects and there is a need for legal experts and legislators to enact appropriate laws for them after thorough examination and contemplation.

Given the fact that the said laws that address all needs of society do not exist in the Qur’an and theSunnah , how can it be claimed that Islamic and divine laws must be implemented in society when in fact Islam has no law in so many areas?!

Society is in dire need of such laws, which we cannot find in Islamic sources. What options do we have? How can we consider ourselves as bound by Islamic laws?

What has been mentioned made those who have no faith in Islam express skepticism in religious laws as impractical and insufficient to administer society, and suggest more efforts be exerted on enacting and implementing man-made laws. In order to portray the subject as confusing and complicated, they expressed the above skepticism in various forms, and people also exacerbated it for different motives.

Undoubtedly, their goal is to undermine the Islamic government and to inculcate the notion that Islam cannot administer society. Therefore, the plant if the Islamic Revolution and Islamic government and emphasis on it

is futile and the idea of “Islamization” of the government should be forgotten, because it is not feasible. Unfortunately, some sympathizers of the Islamic Revolution and followers of Islam have also been influenced by this skepticism. It is necessary to present an appropriate reply so that, they remain faithful to Islamic laws, and find solutions to cases in which society needs a law which has no precedence in Islamic sources.

Types of laws and necessity of enacting variable laws

In reply to the above skepticism, it is necessary to explain at the outset that law has a general and broad meaning which also includesnatural laws such as laws on physics, Lavoisier’s2 law on chemistry, Newton’s law of gravity and Einstein’s law of relativity. This group of laws that exist in nature and can be empirically proved are discovered by scientists and are not enacted. These fixed and actual laws are related to natural phenomena, and have nothing to do with legal, political and social laws.

Similarly, we are not referring torational laws such as laws on logic, philosophy and mathematics. We are referring toenacted laws which are technically called “conventional laws” [qawanin-e i‘tibari ]. Of these laws those that are credible and can be implemented, provided they are enacted by a credible authority, can be divided into three types:

The constitution

Constitution means a set of relatively permanent laws codified by competent authorities for a country in accordance with its culture and traditions. These relatively permanent laws are binding for a long period and considered as the basis and foundation of managing society. In view of their relative permanence and immunity from regular changes, these laws are general and limited; thus, the constitution of every country consists of some basic and important articles.

As such, in the constitution there is no room for detailed and specific laws which cover extensive and diverse needs, and are subject to amendment with the emergence of new circumstances. The Constitution is general and permanent in nature and detailed laws are not included in it except those detailed and limited laws which, on account of their importance and special status, give stability to it.

2. Laws ratified by parliament

The second type refers to the laws ratified in the Majlis or parliament. Since some countries have another house of legislation called senate or any other term, in addition to parliament, the laws ratified by the said house of legislation are also included in this type of laws. In our country, apart from the Islamic Consultative Assembly (Majlis) which passes bills needed to administer the country, the Council of Guardians, which is similar more or less to the Senate in other countries and to a constitutional court and consists of a group of jurists and legal experts, conforms the bills ratified by the Islamic Consultative Assembly with the Constitution and religious law. In case of inconsistency with the Constitution and the religious law, it refers these ratified bills back to the Majlis for review.

3. Laws ratified by cabinet

In addition to the laws ratified by parliament, in every country there are binding rules and regulations ratified by other organs, for example, the executive orders issued by the cabinet (executive branch). The constitution has rested authority to the cabinet to ratify laws in specific cases. Similarly, in certain cases the president can also personally take decisions. These executive orders and presidential decrees need not be submitted to parliament for ratification as they are automatically deemed legally binding. Also, bylaws and circulars approved by concerned authorities and officially communicated to offices and executive offices are also called laws and the government is bound to implement them.

Thus, in our country as in some other countries there are three types of laws: (1) constitutional, (2) legislative; laws ratified by the Islamic Consultative Assembly (Majlis) or parliament, and (3) executive orders, presidential decrees, bylaws and circulars approved by authorities legally authorized to do so.

At no time and nowhere in the world are these laws and bylaws ratified all at once; in view of changing circumstances, statutory laws and executive orders are amended and reviewed. Today, circumstances may require the Islamic Consultative Assembly to enact a law, and tomorrow circumstances may change and the said law might be amended and reviewed. In this manner, executive orders have to be amended and reviewed with change of circumstances. Also, when a new president assumes office, it is his prerogative to amend or annul previous executive orders.

Of course, those whose primary concern is the interest of society try their best to codify orders with utmost care to ensure that they are devoid of all possible errors. Naturally, when we say that the laws must be Islamic, it does not mean that all laws ranging from the Constitution to the statutory laws and executive orders must be explicitly derived from the Qur’an.

Meaning of Islamic nature of laws

In explaining the meaning of the Islamic nature of laws and orders, it is important to pay attention to the process of enacting common laws. For example, in codifying and approving bylaws and orders the cabinet or executive power must act within the perimeter determined for it by the Islamic Consultative Assembly and not go beyond it. In other words, the extent of the executive power’s prerogatives has been stipulated by the Constitution and the Majlis’s statutory laws, and the executive orders should be within this framework.

These orders should manifest the generalities reflected in the Constitution and the laws ratified by the Majlis. Thus, initially, generalities are described in the Constitution and statutory laws whose meanings the cabinet or the concerned authority in certain cases has to interpret within the framework of executive orders. The cabinet cannot act unconditionally on its own without any frame of reference. In fact, its executive orders must be within the framework of the Constitution and laws ratified by the Majlis.

The laws ratified by the Majlis, in turn, must be approved and endorsed by the Council of Guardians. That is, the Majlis must also act within the framework of the Constitution and in this way, its ratified laws will be considered credible, enjoying executive guarantee. Therefore, the credibility

of executive orders and their being binding depend on their conformity with the Majlis’s statutory laws and the credibility of statutory laws means that they are within the framework of the conditional law of the country.

The credibility of the Constitution of the Islamic system is based on its consistency with the legislative will of God the Exalted. As such, the entire laws and decrees have a linear relationship and they are credible, provided that this hierarchy is observed in such a manner that it ends up in Islam and the legislative will of God. It is not in the sense that all the executive orders, circulars and statutory laws can be explicitly found in the Qur’an and theSunnah .

Since God delegated certain prerogatives to the Holy Prophet (s ) to promulgate specific laws and decrees in certain cases, these laws and decrees are credible and binding because they are based on the permission and will of God. It is obligatory to obey and act upon them on account of the decree of God on the necessity of obeying and following him. Under the aegis of this decree of God, the laws and orders promulgated by the Messenger of Allah (s ) are credible and, at the same time, it is obligatory on others to obey and act upon them; otherwise, merely to obey the orders of the Messenger of Allah (s ) without divine sanction is not obligatory.

So, the laws which God, the Exalted, has directly enacted and explicitly mentioned in the Qur’an occupy the foremost degree and are intrinsically credible. The laws enacted by the Holy Prophet (s ) in certain cases by God’s leave occupy the next degree and their credibility is equal to that of God’s command. Similarly, the credibility of the laws which the infallible Imam (‘a ) enacts and the orders he gives emanate from the decree of God because God and the Prophet (s ) consider it obligatory to obey the Imam.

Now, assuming that we were living in an Islamic territory under the reign of the Commander of the Faithful (‘a ), we would have considered it incumbent upon us to obey him. If the Imam (‘a ) appointed a person like Malik al-Ashtar as the governor in our region saying, “Act upon his orders and do not defy them, for whoever obeys him actually obeys me,” the mere orders of Malik al-Ashtar would not be binding for the people because he was like other people, but obedience to him would have been obligatory and his orders binding because he was designated as governor by the infallible Imam (‘a ) who, in turn, had been designated by God through the Prophet (s ), and to obey him would bewajib .

However, laws and orders issued by a governor, designated by an infallible Imam, are considered laws of a third degree. As an analogy, the governor is like an appointed official whom the Islamic Consultative Assembly has granted powers on the basis of which he has authority to issue circulars and instructions, and on account of those delegated powers, his orders are binding. Similarly, the Majlis has acquired its credibility from the Constitution and its statutory laws acquire credibility under the auspices of the Constitution.

The credibility of the constitution in other countries emanates from the will of the people. But we believe in a higher station and reference with respect to the Constitution. We believe that the credibility of the constitution should emanate from the will of God, and the Prophet (s ), an infallible

Imam (‘a ) or any person like Malik al-Ashtar, designated by one of the infallible Imams (‘a ), has to endorse it. Therefore, the credibility of law should emanate from the words of God, the Prophet (s ), an infallible Imam (‘a ), and then any person designated by an infallible Imam. This is the logic and theory of Islam.

In the time of occultation [ghaybah ] of the infallible Imam, since thewali al-faqih has been chosen through a general designation by the infallible Imam, hiswilayah is endorsed by the Imam and acquired credibility, thus, his approval is the source of credibility of the constitution; otherwise, the constitution by itself is questionable. It is debatable as to where its credibility emanates from and who has the right to amend it. On what basis does a minority that has not voted for a certain law abide by it? And there are many other questions. However, when we say that this law has been declared credible by one formally designated by the infallible Imam, there is no room for any more questions.

Process of legislation in the Islamic government

It is clear in the theory of Islamic government that the original credibility of law comes from God, and the words of anyone, like the Prophet (s ), who is credited by God, become binding. In turn, the words of anyone who is designated by the Prophet (s ), or the Commander of the Faithful (‘a ), are equally binding. Similarly, the laws and decrees issued by anyone who is designated by the infallible Imam (‘a ) through a general or specific appointment shall be Islamic and sacred because they have been approved by God.

Of course, as we have said, in the Islamic government this approval may take different intervals. The credibility of approval of thewali al-faqih emanates from the approval of and endorsement by the infallible Imam (‘a ) and the credibility of decrees and approval of the infallible Imam, in turn, emanates from the approval of and endorsement by the Prophet (s ). Finally, credibility of the Prophet’s approval is confirmed through an explicit text [nass ] of the Qur’an where God says:

﴿يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللّهَ وَأَطِيعُوا الرَّسُولَ وَأُوْلِي الأَمْرِ مِنكُمْ﴾

“O you who have faith! Obey Allah and obey the Apostle and those vested with authority among you...” 3

and in another verse:

﴿النَّبِيُّ أَوْلَى بِالْمُؤْمِنِينَ مِنْ أَنفُسِهِمْ﴾

“The Prophet is closer to the faithful than their own souls….” 4

Thus, the aforementioned link has a perfectly logical foundation for the members of an Islamic society and those who believe in the truthfulness of God, the Prophet(s) and the infallible Imams (‘a ). As we have expounded earlier, we have to talk on the basis of our audience’s convictions and beliefs and through their language. For this reason, if a person does not believe in God and in the truthfulness of the Messenger of Allah(s) , or is doubtful of the infallible Imam (‘a ), we need to discuss this issue in a different way.

Initially, we have to deal with the fundamental and essential principles of Islam, and then after proving them, tackle other subjects, including political and administrative issues, on the basis of those principles. Of course, this form of legislation, or the other usual forms can also be examined on the basis of their value for the benefit of society.

Legal status delegated in the Islamic government

In the Islamic political theory, besides the fact that all principles of law must be enacted by God, all laws and orders be approved by Him, the Messenger of Allah (s ), an infallible Imam, or his general or specific successor, the implementer of the law also has to be designated by God to acquire credibility through this system of guardianship. (The judicial organ also has an executive function; it must be regarded a righteous reference authority in cases of disputes and differences and check the law prior to its implementation. Therefore, an independent and special status has been given to it.)

At the time when the Prophet (s) or an infallible Imam was present, he had to personally hold the reigns of government or designate someone to implement the law; for example, Hadrat ‘Ali (‘a ) appointed Malik al-Ashtar as the governor of Egypt in order to implement the law there. However, in this period ofghaybah when the people have no access to the infallible Imam (‘a ), the responsibility of implementing the law lies on the shoulders of the one who has been appointed by the infallible Imam through a general designation, and this will lead us to the theory ofwilayah al-faqih about which we will discuss later, God willing.

It should now be clear that in Islamic political theory and administrative structure, just as the law should be linked to God, the implementer of the law should also be linked to God and be appointed by God either through a general or specific designation.

The judicial organ should be equally linked to God and the judge should be appointed by God either through direct, or indirect and general designation. In either case, if the judge has no link whatsoever to God, his decree shall have no credit at all. The Holy Qur’an has pointed out God’s direct designation of Hadrat Dawud (David) (‘a ) to judge among men:

﴿يَا دَاوُودُ إِنَّا جَعَلْنَاكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُم بَيْنَ النَّاسِ بِالْحَقِّ﴾

“O David! Indeed We have made you a vicegerent on the earth. So judge between the people with justice….” 5

And regarding the Prophet of Islam (s ), it says:

﴿إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللّهُ﴾

“Indeed We have sent down to you the Book with the truth, so that you may judge between the people by what Allah has shown you.” 6

It also states:

﴿فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ...﴾

“But no, by your Lord! They will not believe until they make you a judge in their disputes.” 7

In sum, in the Islamic political theory, sovereignty, legislation and the administration of society in all its dimensions and aspects must emanate from the legislative will of God.

References

1. Sometimes, in contrast to the common term “government” applied to the three powers, “government” is only applied to the executive power. Of course, this is a specific term which is used in limited cases. Usually, “government” is used in its common and broad meaning.

2. Antoine Laurent Lavoisier (1743-1794): French chemist, who is considered the founder of modern chemistry. [Trans.]

3. Surah an-Nisa’ 4:59.

4. Surah al-Ahzab 33:6.

5. Surah Ṣad 38:26.

6. Surah an-Nisa’ 4:105.

7. Surah an-Nisa’ 4:65.