A Tale of Two Theories: Government by Judiciary Theory versus Guardianship of the Jurist Theory

Authors

Shams Al Din Al Hajjaji

Abstract

This research argues that Muslim scholars developed two theories of government over time. Even tough Islamic scholars'Shia and Sunni'agree on mandating the highest level of legal knowledge in any member of the Islamic government, they disagree on the legal nature of these members, whether they are judges, or jurists. Shia Islamic scholars adopted the theory of the guardianship of the jurist (Wilayat al-Faqih in Arabic, or Vilayat e-Faqih in Farsi). Unlike Sunni scholars, the Shia has developed a practical approach to apply their theory of government in practice. A prominent example of this theory is the Iranian practice of the Guardianship of the Jurist Theory. Sunni Islamic scholars adopt the theory of government by judiciary (Wilayat Al-Qadi). The assumption of this theory is that member of the government are judges. This is based on the assumption that Prophet Mohamed was a judge with enumerated executive authorities, namely the collection of Sadaqat (state financial revenue), military power, and foreign affairs' representation. This theory has never been in practice since the assassination of the first four successors of the Prophet.

Recommended Citation

Shams A. Al Hajjaji, A Tale of Two Theories: Government by Judiciary Theory versus Guardianship of the Jurist Theory, 33 Emory Int'l L. Rev. 503 (2019).
Available at: https://scholarlycommons.law.emory.edu/eilr/vol33/iss4/2