This is a translation of an article published by Ijtihad Network, which can be found here, translation by HESC
Shaykh Moḥammad Soroush Maḥallātī
Ijtihad Network: Following discussions that have been raised online in recent days about the perspective of Āyatullāh Sayyid ʿAlī Sīstānī regarding wilāyat al-faqīh, Ḥujjat al-Islām wa al-Muslimīn Moḥammad Soroush Maḥallātī, professor of khārij (advanced seminars) fiqh (jurisprudence) and uṣūl (principles of jurisprudence) in the Islamic Seminary of Qom, has presented some explanations that can be read below:
It has been said that Āyatullāh Sīstānī believes that all fuqahāʾ in general have wilāyah, but that he considers leadership of government [acceptable] for a faqīh that enjoys popular acceptance/approval. This subject matter was also seen a few years ago in an istiftāʾ (question & answer). But when I, together with some of the learned scholars of Qom such as Agha Mukhtārī, visited Āyatullāh Sīstānī a few years ago and I raised this very question, mentioning that istiftāʾ, he said “I do not comment on these issues” and he added that “I have also told my office to not respond to these questions” and in this way, he negated that istiftāʾ.
But in his treatise on Lā Ḍarar wa Lā Ḍirār, he has mentioned this topic and considers it as established in the domain/scope of “that which is necessary for the preservation of social order (hifẓ al-niẓām)”, not in the domain/scope of “wilayāt muṭlaqa” (absolute guardianship). Of course, he [only] accepts this extent, too, for the faqīh who is chosen by the fuqahāʾ: “the wilāyah in that which the preservation of the social order depends – this is called wilāyah in general affairs established for the faqīh who is confronted with general issues, and is chosen by the fuqahāʾ.” (p. 205)
Of course, his detailed discussion of demonstrative jurisprudence (baḥth istidlālī) on this topic, is contained in the book of Makāsib which unfortunately has not been published yet and is not at our disposal. But he has included a condensed version of it in his discussions of ijtihād and taqlīd which has been published through the notes of Mr Sayyid Muḥammad ʿAlī Rabbānī (pp. 89-131)
This discussion begins by mentioning the historical development of wilāyat al-faqīh: “In the words of the qudamāʾ, there is no sign or trace of wilāyat al-faqīh. This issue has been raised in the expressions of the mutaʾakhirīn (contemporary), some of whom have accepted it and some others who have rejected it or expressed uncertainty.”
Following that, he has scrutinised and debated the evidences for wilāyat al-faqīh and, by quoting the legal reasoning of Imām Khumaynī, has presented objections to it. And in the end, he concludes that the evidences are insufficient, that the ijmāʿ and rational evidences are refuted and that the one who seeks to prove it must respond to all the doubts and objections, and how is this possible?! And that perhaps it is because of this precision of the discussion that Muḥaqqiq Nāʾīnī and Muḥaqqiq Iṣfahānī have said: “There is a great earthquake in it” (p. 131) [meaning, great uncertainty and difficulty]
One of the innovative points in Āyatullāh Sīstānī’s discussions is the consideration of the role of the people in establishing government. He argues that “establishing justice (qisṭ wa al-ʿadl) is the responsibility of all Muslims in general, and since [such a responsibility of] general justice cannot be achieved directly by all the Muslims in general, they must choose/elect someone or a group of people to do so. Therefore, not every faqīh has wilāyah. Rather, the faqīh chosen/elected by the people has wilāya.”
Of course, he raises this theory in the measure of possibility (iḥtimāl) and not in the measure of a fatwa. The roots of this possibility can be seen in Tafsīr al-Mīzān and in the book Dirāsāt fī wilāyat al-faqīh.
A detailed and precise study of Āyatullāh Sīstānī’s theory requires further time.