Excerpts from Abbas Amanat's
"Apocalyptic Islam and Iranian Shiism"
Chapter 8
From Ijtihad to Wilayah el Faqih: The Evolving of Shi'i Legal Authority into Political Power
"Apocalyptic Islam and Iranian Shiism"
Chapter 8
From Ijtihad to Wilayah el Faqih: The Evolving of Shi'i Legal Authority into Political Power
Introduction
Hashim Aghajari was sentenced to death by the Islamic Revolutionary Court in November 2002 for questioning the practice of blind 'emulation' or Taqlid of the mujtahids. The Iranian court accused him of blasphemy, because he was denying the authority of the jurist or Welayat el Faqih - the very founding of the Islamic Republic.
The threat of Aghajari went beyond the practice of tabloid but the legitimacy of the concept itself. For the ruling elite of Iran, the welayat al faqih is the prime source of their political legitimacy, which can be traced back to Ayatollah Khomeini who first published on this subject in the 1960's.
Aghajari's speech commemorated Ali Shariati, the renowned revolutionary reformist,, invoking his nation of Islamic Protestantism as a way to 'liberate' Islam from the whimpers of traditionalism. Like Shariati, Aghajari tried to come up with a historical understanding of Shi'i heritage that was grounded in the Quran and hadith that also dealt with modern topics from human rights to economic democracy. He also criticized the Shi'i establishment for its culture of condescension, especially the ijtihad.
Such critique of the abiding authority of ijtihad and the maria''-i tabloid inevitably brings to light the much debated issue of legal authority in Shi'i Islam and the institutionalization of ijtihad.
The Usuli Interpretation of Judicial Authority
As early as the 10th century the Twelver Shia jurists recognized that in the occultation (ghayba) of the 12th imam, the state is by default inherently unjust and therefore illegitimate. Only the return of the Imam could legislate a justice and legitimate rule. The same rationale also barred in theory any legitimate collaboration between the jurist and the state. Every government was in theory seen as inherently oppressive. This allowed the flourishing of Shi'i study of hadith and the early development of jurisprudence (fiqh) focusing gone civil and contractual law as well as devotional acts and obligation.
The quietest tendency among Shi'i jurists encouraged compliance and even collaboration with the 'unjust' rulers especially if and when the state was accommodating the Shi'is. This de facto acceptance of the temporal power was in full agreement with the ancient Persian notion of the 'sisterhood' or religious and state institutions, an interdependency perceived to be essential for the endurance of both sets of institutions and the stability the social order.
By the 14th century, Shi'i jurists developed an elaborate legal system of private law based on ijtihad, the exercise of logical reasoning by utilizing the sources of the law to form qualified legal opinions within a specific timeframe. The exercise of ijtihad led to the development of an elaborate methodology of jurisprudence, the science of the usual al fiqh. Some of the best legal minds articulated complex linguistic debates on legal semantics and phenomenological discussion the authority of text. However, they failed to discuss mujtahids qualifications, hierarchy and madrasa curriculum.
The establishment of the Safavid State in 1501 to 1736 which declared Shiism as the official state religion did not substantially alter the mujtahids resistance to institution development - and this in spite of the state's active sponsorship of the clerical establishment and heavy-handed patronage of teaching circles. Immigrant jurists from the Arab Shi'i communities of Jabal 'Amil, Qatif and Bahrain in northern Arabian and Najaf in southern Iraq were incorporated into the judiciary of the Safavid empire. These mujtahids and their Persian counterparts considered the Safavid shahs as legitimate definers of the faith and the empire as the guarded Shi'i domain. For the ulama community, it was therefore permissible to assume judicial office, as the majority did, collect alms and the share of the Imam. Interestingly, the jurists failed to solidify a system of independence from the state. Their reluctance to better define the boundaries of ijtihad was in part because the Safavid rulers successfully recruit the mujtahids as state functionaries. The Office of Shaykh al Islam was held by a high ranking jurist, but was not understood to be a legal supervision over the entire judicial community. In the 17th century, the Safavids patronized the Akhbair school, which rejected ijtihad.
The debate between the Usuli and Akhbari schools in the late 17th century and 18th centuries weakened the development of usual al fiqh as a discretionary methodology in favor of the wholesale validity of all the hadith. The Akhbari school held that all reports from diverse Shi'i hadith sources are valid with little respect for their historical authenticity. Akhbari resistance to independent reasoning was congruent with the Safavid state's aversion to allow the emergence of an independent mujtahid-dominated judiciary.
After the collapse of the Safavid empire in 1722 and the ensuing political instability, the Usuli school re-emerged as the predominant legal school, a position it retained during later 18th and throughout the nineteenth century. In contrast to most scholars of rival Akhbari camp, Usuli jurists practiced ijtihad by employing analogical deduction (qiyas) in order to infer opinions form the text of the Quran and the hadith. The analogical method was no doubt a far more effective strategy than Akhbarism in dealing with the judicial issues of Shi'i society at a time when the mujtahids often found themselves as leaders of their communities. In the early decades of the 19th century, they made progress in laying the foundations of a clerical establishment that has continued up to the present with little interruption. They monopolized the madrasas and the pulpit of the mosques and collected endowments (Awqaf) and religious taxes. The latter included the portion for the Imam (shame i imam), paid by the pious followers to the mujtahids who received it as legitimate deputies of the Hidden Imam.
They developed amicable relations with the early rulers of the Qajar Dynasty (1785-1925), an arrangement that was mutually beneficial to both sides and which therefore led to the apogee of Usuli ijtihad.
The growth of religious circles first in Najaf, where the Akhbari school was soundly defeated, and later in Iranian cities, was supported by a large student body with a closely knit network of teacher-pupil patronage. Impressive numbers of legal works were produced both on the specifics of the law and on the methodology of the usual el fish, with implicit emphasis on the role of the mujtahids not only as legal scholars but as judges and social mediators. The growth of congregations in mosques also strengthened jurists ties with other social groups in search of legal support, most noticeably the merchants of the bazaar who backed the mujtahids and financed their teaching activities.
Despite their growing strength and success in developing a semi-indepdenent legal network, the jurists of the Qajar period did not seek to reconstruct ijtihad and its application to public law. Even during instances of turfs with the state over Westernizing policies, they continued to honor the dichotomy of the religious law (sharia) as it concerned jurists, verses the customary penal law such as punishing criminals, etc. Most laws varied from region to region and town to town. They ran parallel to with Sharia law but operated in a more fluid environment and were seldom documented.
Neither side under the Qajar period, jurists or state courts, defined the boundaries of sharia and surf through codification. The usul il fiqh remained essentially concerned with its theoretical debates on the fine points of legal methodology. Voluminous works, commentaries, and glosses on commentaries were reproduced by Usuli scholars on intricate details of semantics. Yet the jurists simply did not see the need for a centralized corporate identity or for disturbing the delicate balance with the state upon which they continuously negotiated their power. The state, in turn, preferred ambiguity, whereby through consent and coercion it hoped to persuade the jurists to comply with its otherwise waning power and prestige. By the end of the century, while the mujtahids were more than ever present in the public space, they were intellectually stagnant within the world of the madrasa. Even such traditional fields as math and philosophy were no longer part of the jurists' general education.
The messianic Babi movement in the middle decades of the century questioned the very legitimacy of the clerical community, its theoretical premises, educational methods and legal practices. The Babi religion, later Baha'i Faith, denied the long held position of the jurists that they collectively represent the Imam of the Age in Occultation. As the Babi movement grew in popularity not only to seek leadership in the new 'Imam of the Age' but declared the end of the historical cycle of Islamic shari'a by ushering in a new cycle of prophetic manifestation.
In response to the Babi challenge, the jurist community closed ranks and came closer to full collaboration with the state. in no other area did the jurists need the Babi call for fundamental reform, though in the longer term the clerical community did produce a new form of communal leadership. The status of the marja' was first recognized in Shaykh Murtaza Ansari (1799-1864) in the late 1850's, and coincided with the growth of clandestine Babi anticlerical subversion. Ansari's emergence as the 'supreme exemplar' no doubt mirrored the public desire for a clerical leadership committed to higher standards of morality and social justice. Ansari came to represent these values for a growing constituency of seminarians in the madrasas and among the lay followers.
The idea of Marja'iyat continued into the second half of the century and through the Constitutional Revolution (1906-1911)
The quietest tendency among Shi'i jurists encouraged compliance and even collaboration with the 'unjust' rulers especially if and when the state was accommodating the Shi'is. This de facto acceptance of the temporal power was in full agreement with the ancient Persian notion of the 'sisterhood' or religious and state institutions, an interdependency perceived to be essential for the endurance of both sets of institutions and the stability the social order.
By the 14th century, Shi'i jurists developed an elaborate legal system of private law based on ijtihad, the exercise of logical reasoning by utilizing the sources of the law to form qualified legal opinions within a specific timeframe. The exercise of ijtihad led to the development of an elaborate methodology of jurisprudence, the science of the usual al fiqh. Some of the best legal minds articulated complex linguistic debates on legal semantics and phenomenological discussion the authority of text. However, they failed to discuss mujtahids qualifications, hierarchy and madrasa curriculum.
The establishment of the Safavid State in 1501 to 1736 which declared Shiism as the official state religion did not substantially alter the mujtahids resistance to institution development - and this in spite of the state's active sponsorship of the clerical establishment and heavy-handed patronage of teaching circles. Immigrant jurists from the Arab Shi'i communities of Jabal 'Amil, Qatif and Bahrain in northern Arabian and Najaf in southern Iraq were incorporated into the judiciary of the Safavid empire. These mujtahids and their Persian counterparts considered the Safavid shahs as legitimate definers of the faith and the empire as the guarded Shi'i domain. For the ulama community, it was therefore permissible to assume judicial office, as the majority did, collect alms and the share of the Imam. Interestingly, the jurists failed to solidify a system of independence from the state. Their reluctance to better define the boundaries of ijtihad was in part because the Safavid rulers successfully recruit the mujtahids as state functionaries. The Office of Shaykh al Islam was held by a high ranking jurist, but was not understood to be a legal supervision over the entire judicial community. In the 17th century, the Safavids patronized the Akhbair school, which rejected ijtihad.
The debate between the Usuli and Akhbari schools in the late 17th century and 18th centuries weakened the development of usual al fiqh as a discretionary methodology in favor of the wholesale validity of all the hadith. The Akhbari school held that all reports from diverse Shi'i hadith sources are valid with little respect for their historical authenticity. Akhbari resistance to independent reasoning was congruent with the Safavid state's aversion to allow the emergence of an independent mujtahid-dominated judiciary.
After the collapse of the Safavid empire in 1722 and the ensuing political instability, the Usuli school re-emerged as the predominant legal school, a position it retained during later 18th and throughout the nineteenth century. In contrast to most scholars of rival Akhbari camp, Usuli jurists practiced ijtihad by employing analogical deduction (qiyas) in order to infer opinions form the text of the Quran and the hadith. The analogical method was no doubt a far more effective strategy than Akhbarism in dealing with the judicial issues of Shi'i society at a time when the mujtahids often found themselves as leaders of their communities. In the early decades of the 19th century, they made progress in laying the foundations of a clerical establishment that has continued up to the present with little interruption. They monopolized the madrasas and the pulpit of the mosques and collected endowments (Awqaf) and religious taxes. The latter included the portion for the Imam (shame i imam), paid by the pious followers to the mujtahids who received it as legitimate deputies of the Hidden Imam.
They developed amicable relations with the early rulers of the Qajar Dynasty (1785-1925), an arrangement that was mutually beneficial to both sides and which therefore led to the apogee of Usuli ijtihad.
The growth of religious circles first in Najaf, where the Akhbari school was soundly defeated, and later in Iranian cities, was supported by a large student body with a closely knit network of teacher-pupil patronage. Impressive numbers of legal works were produced both on the specifics of the law and on the methodology of the usual el fish, with implicit emphasis on the role of the mujtahids not only as legal scholars but as judges and social mediators. The growth of congregations in mosques also strengthened jurists ties with other social groups in search of legal support, most noticeably the merchants of the bazaar who backed the mujtahids and financed their teaching activities.
Despite their growing strength and success in developing a semi-indepdenent legal network, the jurists of the Qajar period did not seek to reconstruct ijtihad and its application to public law. Even during instances of turfs with the state over Westernizing policies, they continued to honor the dichotomy of the religious law (sharia) as it concerned jurists, verses the customary penal law such as punishing criminals, etc. Most laws varied from region to region and town to town. They ran parallel to with Sharia law but operated in a more fluid environment and were seldom documented.
Neither side under the Qajar period, jurists or state courts, defined the boundaries of sharia and surf through codification. The usul il fiqh remained essentially concerned with its theoretical debates on the fine points of legal methodology. Voluminous works, commentaries, and glosses on commentaries were reproduced by Usuli scholars on intricate details of semantics. Yet the jurists simply did not see the need for a centralized corporate identity or for disturbing the delicate balance with the state upon which they continuously negotiated their power. The state, in turn, preferred ambiguity, whereby through consent and coercion it hoped to persuade the jurists to comply with its otherwise waning power and prestige. By the end of the century, while the mujtahids were more than ever present in the public space, they were intellectually stagnant within the world of the madrasa. Even such traditional fields as math and philosophy were no longer part of the jurists' general education.
The messianic Babi movement in the middle decades of the century questioned the very legitimacy of the clerical community, its theoretical premises, educational methods and legal practices. The Babi religion, later Baha'i Faith, denied the long held position of the jurists that they collectively represent the Imam of the Age in Occultation. As the Babi movement grew in popularity not only to seek leadership in the new 'Imam of the Age' but declared the end of the historical cycle of Islamic shari'a by ushering in a new cycle of prophetic manifestation.
In response to the Babi challenge, the jurist community closed ranks and came closer to full collaboration with the state. in no other area did the jurists need the Babi call for fundamental reform, though in the longer term the clerical community did produce a new form of communal leadership. The status of the marja' was first recognized in Shaykh Murtaza Ansari (1799-1864) in the late 1850's, and coincided with the growth of clandestine Babi anticlerical subversion. Ansari's emergence as the 'supreme exemplar' no doubt mirrored the public desire for a clerical leadership committed to higher standards of morality and social justice. Ansari came to represent these values for a growing constituency of seminarians in the madrasas and among the lay followers.
The idea of Marja'iyat continued into the second half of the century and through the Constitutional Revolution (1906-1911)
From Marja'iyat to Wilayat el Faqih
Only the latter part of the 20th century witnessed the gradual shift back to a centralized marjaiyat under Ayatollah Husayn Burjurdi (1875-1962). He should be viewed as the first to hold united leadership not only in the management of the Qom seminaries, the collection of religious taxes and distribution, and orchestrating a rigorous anti-Bahai' campaign but a certain degree of legal authority over the clerical community that resulted from these measures. It goes without saying that the 'emergence' of this from f centralized marja'iyat was a belated response to the state's intrusion into the judiciary - the rise of Pahlavi secular autocracy from the mid-1920's and the growth of modern educational institutions; the abolition of the mujtahids' civil courts and their replacement with a state-controlled judiciary, state regulation of the use of charitable endowments; and other measures meant to undermine the ulama's social status.
The growth of secularized middle classes and the popularity of a variety of religious and ideological challenges, from Bahai's, Marxists, secularizes, religious modernists and Islamic radicals of various sorts persuaded the demoralized and shrunken clerical community to reorganized the madrassa and solidify their network at the national level. They gradually moved away from the long tradition of state-ulema alliance that was founded on the ancient principle of preserving social equilibrium through guarded collaboration. In due course the new marjaiyat reconstituted its base not only in the bazaar community, where it was traditionally strong, but among a new class of urban poor. They offered a pool for clerical recruitment and an enthusiastic mosque congregation.
Reconsideration of Shi'i legal thought and the study of fiqh did not change and focused on devotional acts (ibadat) and contracts (uqud). The striking persistence of legal 'archaism' among Shi'i jurists can be explained in part by the inherent conservation the legal curriculum and in part by isolation from society's secular discourse. Ship teaching circles in Najaf and Qom made almost no attempt to address new issues of public claw or offer modern reading of old legal texts. The institution of informal teacher-pupil patronage continued in the hawza of Qom.
A number of marjia's that emerged after the death of Bourujerdi in 1962, including Ayatollah Khomeini, were no doubt more organized in their teaching, but no attempt to revisit the nature of marja'iyat surfaced despite the coherent network of an ecclesiastical hierarchy emerged throughout Iran, southern Iraq and Lebanon.
The Marj'a relied heavily on the constituency's financial and moral backing, which Murtaza Mutahhari (1920-1979), a prominent follower of Ayatollah Khomeini, pointed out in the 1960's. A conference as organized by religious modernists on the theme of marja'iya between Mahdi Bazargan and Mutahhari, to urge the maria's touring some order into the notoriously chaotic world of Shi'i clerical leadership.
The greater politicization of the clerical community, and especially the clerical clique around Khomeini from the mid-1960's, responded positively to this call. Among the maria's of Qom and Najaf, Khomeini represented the most radical political position. His open anti-Pahlavi platform caused as much trouble for him as it gained him popularity, especially among the lower and middle rank ulema disillusioned with other maria's and the collaboration with the shah's regime.
For Khomeini and his supporters, modernity came to the clerical establishment via political radicalization rather than revising the Shi'i legal system. Even prominent students of Khomeini like Husayn Ali Muntaziri and Murteza Mutahhari seldom called for a reconsideration of Islamic legal tradition teaching methods. For them, legal reform equalled succumbing to an alien secular modernity. those who did attempt in the Pahlavi period to reinterpret Shi'i theology, like Muhammad Hasan Shariati' Sangilagi and Ali Akbar Hakamizada, were marginalized or soundly defeated by the jurists of Qom.
In the tense environment of confrontation between the Shah and the secret police, this message of political dissent was better transmitted to the layman by recalling the Shi'i narratives of defiance and self-sacrifice, as in the commemoration of the martyrdom of Ali and Husayn. Even Mutahhari, the most promising intellectual product of Qom in the 1970's preferred to delve into Western philosophy or Islamic reformism and revolutionary rhetoric rather than adopt a novel approach in fish and usual.
In a climate of state-driven secular modernity versus the ulemas legal redundancy, Khomeini's gradual shift in the late 1960's towards the doctrine of juridicial sovereignty was a solution the prolonged problem of unregulated leadership. He borrowed from sunni notion of Islamic government long debated by the likes of Mohammad Rashid Rida and Abul Alaa Mawdudi, in order to lay the groundwork for the Welayat el Faqih.
Khomeini said that issues related to society and political affairs inf act occupy the greatest portion of Islamic teachings in the Qur'an compared to a very small section dedicated to ritual acts. This was in direct contrast to the traditional understanding of the role of the jurists as legal experts who were solely concerned with the pragmatic aspects of Sharia and was thus received as such by the conservative jurists of Najaf and Qom.
With the outbreak of the Iranian Revolution, the imam honorific was promoted by Khomeini's students and supporters to denote not only his superior authority over the Pahlavi monarchy but founder of the Islamic Republic, a certain semi-prophetic sanctity was also attached to the title, which was largely the work of propagandists in the revolutionary press and reminiscent of the recurring messianic tradition deeply embedded in Iranian shiism.
The Guardian Jurist only answers to God and is appointed by a Council of the Experts (majlis i khubragan), a select body high-ranking ulama. The authoritarian nature of wilayat el faqih is no doubt indebted to the persistent culture of autocracy which the revolution denounced in theory but perpetuated in practice. It also reflected the Shi'i judicial community's failure to rethink the precepts of Shi'i law and their applicability to pluralist values. The doctrine of the Welayat al Faqih was informed above all by a Shi'i legal mindset and despite the practices of ijtihad and marja'iyat that operated on some form of populism, was essentially alien to modern notions of plurality.
The Shi'i establishment now more than ever appears as an equivalent of a state-sponsered church with its ecclesiastical hierarchy. Many of the younger generation now feel they have been left out by a clerical establishment that resorts to doctrinal repression to preserve its privileges and monopolies.
A whole body of literature has appeared since the revolution on the Welayat al Faqih ranging from Muhsin Kadivar to Muhammad Taqi Misbah-Yazdi who denote the undetermined parameters of the office of the Guardian Jurist in the Islamic Republic. In two of his works, Muhsin Kadivar examines wilayat within its conceptual and historical bounds and offers a framework of inquiry that relies on the Quran and shii hadith to define wilayat i shar'i as a theocratic office irreconcilable with democratic values and essentially against the modern idea of of social contact. Misbah Yazdi, on the other hand, argued that the Guardian Jurist is solely designated by the Mahdi rather than by the people and that his command is obligatory for all and that nobody has the right to participate in decision making for the affairs of the state. The Guardian Jurist consults with other experts but is not obligated to comply with their opinions. Misbah, therefore, is more extreme on his interpretation of wilayat than even Khomeini who recognized a need for parliament as a legislative body and the constitutional right of the people to elect the Guardian Jurist through the Council of Experts. But like Kadivar, Yazdi recognizes the fundamental contradiction of the foundation of the Islamic state.
The younger generation of Iranians like Aghajari's speech are frustrated with the monopoly of power, heavy-handed treatment of dissident voices and the obscurantist legal outlook of the clergy, are implicitly critical of the very existence of the Guardian Jurist. Their disappointment went further following the setbacks by the former President Muhammad Khatami and his supporters.
Reconsideration of Shi'i legal thought and the study of fiqh did not change and focused on devotional acts (ibadat) and contracts (uqud). The striking persistence of legal 'archaism' among Shi'i jurists can be explained in part by the inherent conservation the legal curriculum and in part by isolation from society's secular discourse. Ship teaching circles in Najaf and Qom made almost no attempt to address new issues of public claw or offer modern reading of old legal texts. The institution of informal teacher-pupil patronage continued in the hawza of Qom.
A number of marjia's that emerged after the death of Bourujerdi in 1962, including Ayatollah Khomeini, were no doubt more organized in their teaching, but no attempt to revisit the nature of marja'iyat surfaced despite the coherent network of an ecclesiastical hierarchy emerged throughout Iran, southern Iraq and Lebanon.
The Marj'a relied heavily on the constituency's financial and moral backing, which Murtaza Mutahhari (1920-1979), a prominent follower of Ayatollah Khomeini, pointed out in the 1960's. A conference as organized by religious modernists on the theme of marja'iya between Mahdi Bazargan and Mutahhari, to urge the maria's touring some order into the notoriously chaotic world of Shi'i clerical leadership.
The greater politicization of the clerical community, and especially the clerical clique around Khomeini from the mid-1960's, responded positively to this call. Among the maria's of Qom and Najaf, Khomeini represented the most radical political position. His open anti-Pahlavi platform caused as much trouble for him as it gained him popularity, especially among the lower and middle rank ulema disillusioned with other maria's and the collaboration with the shah's regime.
For Khomeini and his supporters, modernity came to the clerical establishment via political radicalization rather than revising the Shi'i legal system. Even prominent students of Khomeini like Husayn Ali Muntaziri and Murteza Mutahhari seldom called for a reconsideration of Islamic legal tradition teaching methods. For them, legal reform equalled succumbing to an alien secular modernity. those who did attempt in the Pahlavi period to reinterpret Shi'i theology, like Muhammad Hasan Shariati' Sangilagi and Ali Akbar Hakamizada, were marginalized or soundly defeated by the jurists of Qom.
In the tense environment of confrontation between the Shah and the secret police, this message of political dissent was better transmitted to the layman by recalling the Shi'i narratives of defiance and self-sacrifice, as in the commemoration of the martyrdom of Ali and Husayn. Even Mutahhari, the most promising intellectual product of Qom in the 1970's preferred to delve into Western philosophy or Islamic reformism and revolutionary rhetoric rather than adopt a novel approach in fish and usual.
In a climate of state-driven secular modernity versus the ulemas legal redundancy, Khomeini's gradual shift in the late 1960's towards the doctrine of juridicial sovereignty was a solution the prolonged problem of unregulated leadership. He borrowed from sunni notion of Islamic government long debated by the likes of Mohammad Rashid Rida and Abul Alaa Mawdudi, in order to lay the groundwork for the Welayat el Faqih.
Khomeini said that issues related to society and political affairs inf act occupy the greatest portion of Islamic teachings in the Qur'an compared to a very small section dedicated to ritual acts. This was in direct contrast to the traditional understanding of the role of the jurists as legal experts who were solely concerned with the pragmatic aspects of Sharia and was thus received as such by the conservative jurists of Najaf and Qom.
With the outbreak of the Iranian Revolution, the imam honorific was promoted by Khomeini's students and supporters to denote not only his superior authority over the Pahlavi monarchy but founder of the Islamic Republic, a certain semi-prophetic sanctity was also attached to the title, which was largely the work of propagandists in the revolutionary press and reminiscent of the recurring messianic tradition deeply embedded in Iranian shiism.
The Guardian Jurist only answers to God and is appointed by a Council of the Experts (majlis i khubragan), a select body high-ranking ulama. The authoritarian nature of wilayat el faqih is no doubt indebted to the persistent culture of autocracy which the revolution denounced in theory but perpetuated in practice. It also reflected the Shi'i judicial community's failure to rethink the precepts of Shi'i law and their applicability to pluralist values. The doctrine of the Welayat al Faqih was informed above all by a Shi'i legal mindset and despite the practices of ijtihad and marja'iyat that operated on some form of populism, was essentially alien to modern notions of plurality.
The Shi'i establishment now more than ever appears as an equivalent of a state-sponsered church with its ecclesiastical hierarchy. Many of the younger generation now feel they have been left out by a clerical establishment that resorts to doctrinal repression to preserve its privileges and monopolies.
A whole body of literature has appeared since the revolution on the Welayat al Faqih ranging from Muhsin Kadivar to Muhammad Taqi Misbah-Yazdi who denote the undetermined parameters of the office of the Guardian Jurist in the Islamic Republic. In two of his works, Muhsin Kadivar examines wilayat within its conceptual and historical bounds and offers a framework of inquiry that relies on the Quran and shii hadith to define wilayat i shar'i as a theocratic office irreconcilable with democratic values and essentially against the modern idea of of social contact. Misbah Yazdi, on the other hand, argued that the Guardian Jurist is solely designated by the Mahdi rather than by the people and that his command is obligatory for all and that nobody has the right to participate in decision making for the affairs of the state. The Guardian Jurist consults with other experts but is not obligated to comply with their opinions. Misbah, therefore, is more extreme on his interpretation of wilayat than even Khomeini who recognized a need for parliament as a legislative body and the constitutional right of the people to elect the Guardian Jurist through the Council of Experts. But like Kadivar, Yazdi recognizes the fundamental contradiction of the foundation of the Islamic state.
The younger generation of Iranians like Aghajari's speech are frustrated with the monopoly of power, heavy-handed treatment of dissident voices and the obscurantist legal outlook of the clergy, are implicitly critical of the very existence of the Guardian Jurist. Their disappointment went further following the setbacks by the former President Muhammad Khatami and his supporters.
