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7/16/2019 Legal Working for the Government is Shia Islam MAS'ALA FI'L 'AMAL MA'a 'LSULTAN

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A Treatise of the Sharīf al-Murtaḍā on the Legality of Working for the Government "(Mas'ala

fī 'l-'amal ma'a 'l-sulṭān)"Author(s): Wilferd Madelung and Sharīf al-MurtaḍāReviewed work(s):Source: Bulletin of the School of Oriental and African Studies, University of London, Vol. 43,No. 1 (1980), pp. 18-31Published by: Cambridge University Press on behalf of School of Oriental and African StudiesStable URL: http://www.jstor.org/stable/616123 .

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A TREATISE OF THE SHARIF AL-MURTADA ON THE

LEGALITYOF WORKING FOR THE GOVERNMENT(MAS'ALAI'L-'AMALA'AL-SULTAN)

By WILFERDMADELUNG

I

The problem of the lawfulness of accepting and holding office under an

illegitimate ruler posed itself in the ImrmI Shi'a from an early date. ImamiShi'ism considered the historical caliphate, with the exception of the reign of'All b. Abi

Talib,as

invariably usurpatoryand

illegitimate.The rule of the

Muslim community in succession to the Prophet was the exclusive right of'All and the Imams from among his descendants. They had been pushedaside from their rightful position, first by the three caliphs preceding 'Aliand later, by the Umayyads and the 'Abbdsids. On the other hand, the Imamsfrom the fourth, 'Ali Zayn al-'Akbidin,had ceased actively to seek to rule

through the overthrow of the usurpatory caliphate. The sixth Imam, Ja'far

al-S•diq, rejected in particular any offer of help to restore him to his rightfulposition by force and strictly forbade his followers to engage in revolutionaryactivity on behalf of the Imams until the rise of the Qa'im Imam who wouldclaim his right to rule with the sword. This quietist policy was consistentlyfollowed by his successorsand came to be reflectedin Imami belief and doctrinewhich did not anticipate a return of the Imams to rule before the coming ofthe eschatological Mahdi.

The followers of the Imams were thus left to accommodate themselves tothe enduring reality of illegitimate government. Their concern over thissituation was reflected in the numerous statements and responses of the Imamswhich they transmitted, dealing with the legal validity of the acts of the

illegitimate and unjust rulers, the permissibility or necessity of obeying their

orders, of paying or withholding taxes demanded by them, of transactingbusiness with them and accepting their gifts etc. The legality of holding office

under an illegitimate rulerwas also the subject of varioustraditions transmittedfrom the Imams which were later gathered in the major collections of Imdmi

legal traditions under the chapter on lawful and illicit means of livelihood and

gain (ma'dyish, makisib).1 The question was evidently not merely academic.

Imami Shi'ites are known to have held office in the caliphal governmentthroughout the formative period of Imami doctrine in the second/eighth and

third/ninth centuries, and several of the statements of the Imams refer to

specific cases. Most prominent in the early period was the case of 'All b.

Yaqtin, a highly trusted official of the caliphs al-Mahdi,al-Hadi and al-Rashidat whose death in 182/798 the crownprinceMuhammadal-Aminled the funeral

prayer and who was also an active supporter of the Imams, gathering andtransmitting traditions of Ja'far al-Sadiq and Miisa al-Kazim and acting asa financial agent for the latter.2

1 In the canonical collections of Imami traditions, see al-Kulayni, al-Kdfi, ed. 'Ali Akbaral-Ghaffdri, Tehran, 1381/1961, v, 105-12; Ibn Bdbiiya, K. man ld

ya1d.uruhu'l-faqih,Tehran,

1367, 358; al-Tilsi, Tahdhib al-a4kdm, ed. Hasan al-Kharsdn, Najaf, 1380/1960, vI, 330-6.The relevant traditions from these and other works are systematically assembled in al-Hurral-'Amili, Wasa'il al-shi'a, ed. 'Abd al-Rahim al-Shirdzi, Beirut, 1391/1971, vI/2, 54 f., 135-55.

2 On 'Ali b. Yaqtin's positions under al-Mahdi and al-Hddi see D. Sourdel, Le Vizirat'Abbaside, Damascus, 1959, I, 112-14, 120 f. On the basis of the ambiguous text of al-Tabari



A TREATISEOF THE SHARIFAL-MURTADA 19

The positions taken in the relevant statements of the Imams vary. Manyof them express categorical condemnation of the acceptance of officeon behalfof an unjust ruler. The motive for this condemnation is

mostlythat it aids

the oppressorin his injustice and strengthens the cause of the usurpers. Ja'far

al-S.diqis quoted as saying: 'If the Umayyads had not found someone who

would write for them, collect the land tax for them, fight on their behalf, andwitness their communalprayer, they would not have deprived us of our right.' 3

Service of the unjust ruler will, on the other hand, force the holder of officeon his behalf to carry out acts of injustice and thus will inevitably lead to hisown perdition. Other dicta make an exception from the general prohibitionfor someone who is forced by the unjust ruler to take office under threat tohis life. A statement by Imam Ja'far eases this condition to include someonewho is unable to provide for his own food and drink unless he works for the

government. He must, the statement adds, send the fifth (khums) to theFamily of the Prophet when he acquires any means.4 Another group oftraditions permits acceptance of officeunder the illegitimate ruler on conditionthat the holder uses it to protect and benefit his Shi'ite co-religionists. Suchbenefits could be in the form of freeing their imprisoned, cancelling or payingtheir tax debts, giving them employment as his assistants and secretaries, or

making gifts to their poor. Most meritorious, obviously, was to protect andaid the Imam himself. Imam Mftis al-Kazim is quoted as having told 'Ali b.

Yaqtln: 'God has with the ruler friends through whom He protects HisFriends (inna ii 'llWhima'a

'l-sult.ni

awliy&'ayadfa'u bihim 'an awliyd'ihi).' 5

'Ali b. Yaqtin, according to the Imami reports, used to make gifts to ImamMflis of as much as 300,000 dirhams at a time. When the Imam arrangedforthe marriageof three or four of his sons, among them his successor 'Ali al-Rida,

III, 549, Sourdel states erroneously that 'Ali b. Yaqtin was executed by al-Hadi as a zindiq.The one executed was, however, Yazdin b. Bddhdn, secretary of 'All b. Yaqtin and of his father

Yaqtin b. Mfisd (see G. Vajda, 'Les zindiqs en pays d'islam au d6but de la periode abbaside',in RSO, xvII, 1938, 186). 'All b. Yaqtin died at the age of 57 in 182/798, while Imam Mfisdwas held in prison in Baghdad under Hdrfin al-Rashid (Ibn al-Nadim, al-Fihrist, ed. G. Fliigel,Leipzig, 1871, 224, copied by al-Tilsi, Fihrist kutub al-shi'a, ed. A. Sprenger, Calcutta, 1853-5,234; al-Najdshi, al-Rijil, Tehran, n.d., 209. Al-Kishshi (al-Kashshi, Ikhtiydr ma'rifat al-rijal,ed. Hasan al-Muqtafawi,Tehran, 1348/1970, 430) probably erroneously gives the year 180.

'Ali b. Yaqtin's father Yaqtin b. Mfisd, a client of the Banfi Asad, was one of the leadingdi'is of the 'Abbdsid revolutionary movement in Kfifa. According to Ibn al-Nadim, he wasforced to flee when the Umayyad caliph MarwinII searched for him and he reappeared afterthe 'Abbisid victory to serve the caliphs from al-Safflh to al-Rashid (Ibn al-Nadim, p. 224;al-Tfisi, Fihrist, p. 234). According to AbRi l-Faraj al-Isfahdni (al-Aghdnl, Bfillq, 1285, xIII, 94),he worked in Khurdsdn as a weaver. Yaqtin was sent by the caliph al-Mangfiras a man of trustto take charge of the booty which Abfi Muslim had gained in his defeat of 'Abd Allah b. 'Ali,the caliph's uncle (Tab. III, 103). In 161/778 the caliph al-Mahdi put him in charge of theextensive improvements of the pilgrimage route from Baghdad to Mecca ordered by him(Tab. III, 486). In 167/783-4 al-Mahdi entrusted him with the task of enlarging the Mosque ofMecca (Tab. III,520). After the suppression of the revolt of the 'Alid al-HIHusayn. 'Ali al-Fakhkhi,Yaqtin presented the head of the rebel to the caliph al-Hddi (Tab. III, 567). In 178/794 Yalhyb. Khilid b. Barmak, vizier of Hdrfin al-Rashid, sent him to Ifriqiya to persuade the rebel'Abdawayh to return to obedience (Tab. III, 630). Yaqtin died after his son 'Ali in 185/801.

In spite of his prominent service to the 'Abbisids, he was, according to Ibn al-Nadim and al-Tfisi,a Shi'ite and used to carry much money to Imam Ja'far. However, according to a report quotedby al-Kulayni and al-Kishshi (p. 435 and n. 3), Imam Ja'far cursed Yaqtin 'and his offspring(wa-md walada)'. This report should not necessarily be seen as in conflict with Ibn al-Nadim'saffirmation that he was a supporter of the Imams. It may rather reflect the ambiguity whichwould almost inevitably attach on occasion to the role of someone trying to maintain such adouble loyalty.

3Al-Kdfi , v, 106.

4A-Tfisi, Tahdhib,vI, 330; al-Hurr, Was&'il,vI/2, 146.

j Al-KCfi, v, 112; al-Hurr, Wasi'il, vI/2, 139. Al-Kishshi (p. 433) quotes a more explicitversion of the statement: ' O0Ali, God has friends among the friends of the oppressors (zalama)in order to protect His Friends through them, and you belong to them, 0 'All.'



20 WILFERD ADELUNG

he wrote to 'Ali b. Yaqtin to provide the dowry for their brides. The latterasked his slave girls for gifts which he sold for 10,000 dindrs. To this sumhe added 3,000 dinars for the

wedding banquetand sent the whole amount to

the Imam.6 WheneverImam M-isadesired to acquire some property, he wouldwrite to 'Ali b. Yaqtin to effect the purchase for him.7 Ibn Yaqtin would,moreover, secretly return to the followers of the Imam the land tax they had

paid.s He paid annually the expenses of the pilgrimagefor as many as 250 to300 followers,9thus enabling them to visit the Imam. When he wrote to theImam asking his permissionto give up his officialposition, the latter refused.10He repeatedly guaranteed his faithful supporterthe rewardof paradise for his

outstanding merits."The disappearanceof the Imam in the ghaybadid not bring about a basic

change in the relationshipbetween the Imami Shi'a and the established govern-ment. The 'Abbasid caliphate persisted, illegitimately claiming the imamatein succession to the Prophet. Shi'ites accepting office under the usurpatoryrulers could no longer protect and aid the Imams directly, but they might stillbenefit their co-religionists and serve the interests of the Imami community.Since the Imam could no longer be asked personally for permission to take

up a post, the need to lay down generally applicable rules on the basis of theearlier dicta of the Imams no doubt came to be felt more pressingly, as also

happened in other areas of the law. The continuance of a lively interest in the

question of the legality of holding office in the government is attested by thefact that in the fourth/tenth century at least two treatises were written on

the subject. Abii 'Abd Allah al-Husayn b. Ahmad b. al-Mughiraal-Bashanji,an Iraqian ' with a confused doctrine ', composed a Kitdb'amal

al-sult.dn,12and

Abfi 'l-Hasan Muhammad b. Ahmad b. Dawfid (d. 378/988-9), 'the shaykhand jurisconsult of the people of Qumm in his time', wrote a Risdlafi 'amalal-sultan.13Both works are lost, and it is not known to what extent the authorssucceeded in elaborating a systematic, consistent treatment of the problem.

II

The present edition of the Mas'ala fi 'l-'amal rma'a'l-sulttn of the Sharif

al-Murtada s based on MS 5187 of the Majlis Libraryin Tehranwhich contains

a collection of Shi'ite works, mostly by al-Murtada.14Another copy of thetreatise is mentioned by

.AghaBuzurg al-Tihrani as being in the possession of

Sayyid Ab-i 'l-Qasimal-Isfahani in Najaf.15 A modern manuscript, written byAgha Buzurg and presumably copied from the manuscript of al-Isfahani, wassent by the learned copyist to 'Abd al-Razzaq Muhyi al-Din, author of a

biography of al-Murtada,and is listed by the latter as in his possession.16No

6A1-Kishshi,p. 434.

7Al-Kishshi, p. 269.8 Al-Kifi, v, 110; al-Kishshi, p. 435.9Al-Kishshi, p. 434.

0oA1-HIurr,Wasd'il, vi/2, 143. 'Ali b. Yaqtin is described here as the vizier of Hirfinal-Rashid.11Al-Kishshi, pp. 430-2.12A1-Najdshi,p. 54. Al-NajSshi received the ijdza for transmitting the book in 400/1009-10

from a scholar transmitting it from the author.13Al-Najishi, pp. 298 f.14The manuscript was completed in 1234/1818-19, and its contents are described by Ahmad

Munzawi, Fihrist-i Kitabkhana-yi Majlis-i Shi?rd-yi Milli, xvi, Tehran, 1348/1970, 5-12. TheMas'ala fi 'l-'amal ma'a

'i-sult.nis found on fol. 187b-189a.

15Agha Buzurg, al-Dhari'a ild tasanif al-shi'a, Najaf (Tehran), 1355- /1936- , xx, 398,under the title Mas'ala fi 'l-waldya min qibal al-sultdn al-ja'ir wa

'l-z.lim.6 'Abd al-Razzdq Muhlyial-Din, Adabal-Murtad. min siratihi wa-athdrih,Baghdad, 1957, 142.



A TREATISEFTHESHARIFL-MURTAPA 21

other copies have so far been discovered. The treatise is listed, apparentlyunderthe title Mas'alacfi 'l-waldya 'an al-ja'ir, in the ijdza which al-Murtad1grantedhis student Ab-i 'I-Hasan Muhammad b. Muhammad

al-Busrawi

in Sha'ban

417/Sept.-Oct. 1026 17and probably by al-Murtadi's student al-Najashi in hisKitib al-rijal under the title Mas'alafl 'amcal l-sultan.18No referencesto thetreatise have been found in the works of later Shi'ite scholars, and its existenceseems to have been largely unknown among them. Internal evidence, however,in addition to its early mention, confirmsthe authenticity of the text.

The Sharifal-Murtada(d. 436/1044), a descendant of Imam Mfisdal-Ka.zim,ecame the leading scholar and undisputed head of the Imami community

after the death of his teacher Shaykh al-Mufid (d. 413/1022). At the same

time, he held the position of chief syndic (naqibal-nuqab&')f the Talibids, with

jurisdiction over the

maz.Slim,

in Baghdad and entertained close social relations

with the 'Abbasid caliphs al-T 'i', al-Qadir, and al-Q&'im,whom he eulogizedin his poetry. The question of the legality of holding office under illegitimaterulers thus must have concernedhim personally and he may have felt the needto explain and justify his own conduct to the Imdmi community. Theimmediate occasion for the composition of the treatise was, however, adiscussion about the question which took place in Jumada II 415/Aug.-Sept.102419in the salon (majlis) of Abil 'l-Qasim

al-.Husaynal-Maghribi,vizier of

the B-iyid Musharrif al-dawla in Baghdad. The latter, a highly cultured manand a Shi'ite,20evidently also had a personalinterest in the matter. Al-Murtadawas on close terms with him and is known to have also dedicated a treatise in

defence of the Imami doctrine of the occultation of the Imam to him.21 Hedictated the Mas'ala fi 'l-'amal ma'a

'l-sult.nlfor him shortly after the dis-

cussion, before the vizier's dismissal later in the year.22

17Muhyl al-Din, Adab al-Murtada, pp. 131, 142. It is not clear whether the title of thetreatise in the MS of al-Igfahini is Mas'ala fi 'l-waldya 'an al-ja'ir (or min qibal al-sultan al-ja'irwa 1-zalimas given by Aghi Buzurg) or whether this name is derived from the ijdza of al-Busrawi.

18Al-Najashi, p. 207: Mas'ala fi qatlal-sult.n.

Qatl is most likely to be read 'amal. Theedition of al-Najashi's book swarms with corruptions, and the subject of killing the ruler was

not traditionally in the purview of Imami jurists. Aghd Buzurg also refers to al-Najdshi asmentioning the title of the treatise (Dhari'a, xx, 398 : kamd i 'l-Najdshi). It is not clear whetherhe had a different copy of al-Najdshi's book at his disposal containing the title Mas'alafi 'l-waliyamin qibal al-sultdn al-j&'irwa

'l-;.Slim

or assumed the Mas'ala fi qatl al-sultdn to refer to thetreatise.

19Aghd Buzurg (Dhari'a, xx, 398) and Muhyi al-Din (Adabal-Murtad.5,

p. 149) both mentionthe date as Jum. I 415 (July-August 1024). It thus appears that the MS of al-Isfahani givesthe latter date, unless it was erroneously copied by Agha Buzurg.

20 On AbTi'l-Qdsim al-Maghribi see especially Sami Dahhan, introduction to his edition of

al-Maghribi'sKitabfi 'l-siydsa, Damascus, 1948, and the texts relevant to his biography assembledthere on pp. 85-118. To these should be added al-Najishi, p. 55. According to al-Najishi,al-Maghribi's mother was Fdtima, daughter of the prominent Imami scholar Muhammad b.Ibrdhim al-Nu'mdni. H. Busse (Chalif und Grosskonig,Beirut, 1969, 235, 290) suggests that hehad Ismd'ili leanings and was ousted by the caliph al-Qddir from Baghdad because of Ismd'ili

activities. There does not, however, seem to be solid evidence for this assumption. Al-Maghribihad fled from Egypt after his father, uncle and two brothers had been killed by the FStimidcaliph

al-.Hkim

and had actively instigated rebellion againstal-H.Ikim

in Syria.21 Ibn Shahrdshlib, Ma'l1im al-'ulam&',ed. 'Abbis Iqbdl, Tehran, 1353/1934, 62: al-Muqni'

f 'l-ghayba san'at al-wazir Ibn al-Maghribi read sannafahu ii 'l-wazir Ibn al-Maghribi. Mulhyial-Din, Adab

al-Murtad.,pp. 142 f.

22That al-Maghribiwas still in office at the time of the composition of the treatise is indicatedby al-Murtadd's use of the formula addma 'llahu sultdnahft after his name. According to Ibnal-Athir (al-Kdmil, ed. C. J. Tornberg, Leiden, 1851-76, Ix, 235), the vizierate of al-Maghribiin Baghdad lasted ten months and five days. Since his predecessor Mu'ayyad al-Mulk al-Rukh-khaji was dismissed in Ramad•n 414/Nov.-Dec. 1023 (Ibn al-Athir, ix, 233), al-Maghribi's falland flight from Baghdad probably occurred in Rajab or Sha'bhn 415/Sept.-Oct. 1024.



22 WILFERDMADELUNG

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A TREATISE OF THE SHARIF AL-MURTA)k 23

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Praise be to God and His peace upon His servants whom He has chosen,

Mu 'ammadndtheVirtuous f hisdescendants.n the salonof the vizier,

year15oncerning the tenure of office on behalf of the oppressors and the

naturef the doctrine about its propriety or impropriety. This has made

necessarythe dictation of a brief treatise through which he may take cognizance

of what is needed regardingthat subject; and God is the bestower of correct

uopinion nd right guidance.o h d I h s

Know that the ruler may be of two kinds: legitimate (muhiqq)and just,

or illegitimate (mubtil),unjust and usurpatory. There is no question in regard

to holding rffice on behalf of the legitimate, just ruler since it is permissible

nure of the docrieuLri .T J it sroprieoy or Thisasmde

of whatis eded h subet; and 1ods towerofTore

Kno thatU6

e rue maybe ofawo1 1in s"le <*mb ( i)an us

and may even be obligatory, if the ruler commands it as a duty and makes its

acceptance incumbent. The discussion thus concerns only the tenure of office



A TREATISE OF THE SHARIF AL-M-URTAA• 25

on behalf of the usurper. This may be of several kinds: obligatory (and it

may exceed obligatoriness toward compulsion), licit, and evil and forbidden.It is

obligatoryif the one

acceptingoffice knows, or considers it

likelyon the

basis of clear indications, that he will through the tenure of the office beenabled to support a right and to reject a false claim or to order what is properand to forbid what is reprehensible,and if it were not for this tenure, nothingof this would be accomplished. In this case, the acceptance of the office is

obligatory for him because of the obligatorinessof that for which it is a meansand an expedient for its accomplishment. It reaches the level of compulsionwhen he is forced with the sword to accept the office or when he considers it

likely that, if he does not accept it, his blood will be shed. In that case, he is

compelled to accept it. It is licit when he fears for some property of his or isafraid of some harm befalling him the like of which can be borne. In this

case, the office is licit and the evil of accepting it is removed, though it doesnot reach the category of the obligatory because, if he prefers to bear the

damage to his property and to endure the harm coming upon him and doesnot accept the office, that is also permissible for him.

If it is said: How can the tenure of office on behalf of the unjust ruler be

good, let alone obligatory, while the aspect of evil, namely its being an officeon behalf of the unjust ruler, is stable ? When the aspect of evil is stable inan act, the act remains evil even if some aspects of goodness come about. Do

you not see that lying does not become good even if there be some religiousbenefits in it because of some incentives 23 in the presence of which faith and

many acts of obedience toward God occur ? We say: It is contestable thatthe aspect of evil in the tenure of office for the unjust ruler is its being an officeon his behalf. How could this be the case while if someone is forced with thesword to accept the officeit is not evil on his part, and likewise if thereby onearrives at the establishment of right and the rejection of falsehood it ceases tobe evil ? This is unlike what occurs in lying which does not remove it from

being evil. For whereas we know by reason the aspect of evil of lying and thatit is its mere being a lie since this is a rational matter to which reason providesa way, the tenure of office on behalf of the unjust ruler is not so, because theaspect of evil of that in the situation in which it is evil is legal (shar'i). There-

fore it is necessary that we affirm it to be evil in the situation in which thereligious law makes it so. Since the law, however, makes the acceptance ofoffice on behalf of the unjust ruler licit under duress and in the situation inwhich we have postulated that it is used as a means to support indispensablerights, we know that the aspect of evil in this tenure of office is not its merebeing an office on behalf of an oppressor, just as we know that the aspect ofevil in the utterance of a word, since it is good under duress, is not its merepronunciation and its utterance. Rather, it is so on the condition of freepreference. Thus the Qur'anstates that Joseph-peace be upon him-acceptedoffice on behalf of al-'Aziz, who was unjust, and even instigated him in respectto this

appointment by bearing witness to his own integrity saying: ' Set meover the stores of the land. I am indeed heedful and knowledgeable' (Qur'dnxIi, 55). There is no other reason for the propriety of that but what I havementioned of his being enabled through the office to support the rights whosesupport was incumbent upon him.

23 Altaf, pl. of lubtf, s used here in the technical meaning in which the kalam theologiansemploy it to refer to incentives through which God aids man to choose freely faith and acts ofobedience toward him rather than infidelity and acts of disobedience.



26 WILFERD MADELUN G

Furthermore,holding officeon behalf of an iniquitous ruler is no more than

ostensibly claiming something on a basis on which it is not rightfully obtainableand

througha means which does not occasion it. The Commander of the

Faithful 'Allib. Abi Tiflib-peace be upon him-did something of that orderas he took part in the electoral council (sh'rad)venturing to attain to theimamate although he knew that the exercise of the functions of the imamate isnot rightfully obtained from such a council. Later he accepted the choice ofthose who chose him for the imamate when the matter came to him and he

pretended that he had become imam by their choice and their agreement. Thiswas on his part exactly of the same order as accepting office on behalf of an

unjust ruler because of the agreementin ostensibly seeking to attain the matter

through something through which it is not legitimately obtainable and whichdoes not necessitate such a matter. Rather we say that the exercise of the

functions of the imamate belonged to him by virtue of the appointment (nass)by the Messengerof God-may God bless him and his Family-on behalf ofGod. Thus, since he was pushed aside from his rightful position and assumedthat he might attain to the imamate by means which were stipulated by somemen and through the likes of which the imamate is not rightfully obtained, hewas obliged (wajaba) o avail himself of them and to seek to attain it. However,when he attained the imamate, his exercise of its functions was by virtue ofthe previous appointment, not by virtue of these accidental means. This is

analogous to someone who has been illegally deprived of a trust and has been

prevented from taking possession of it; and then the usurper of the trust

pretends to give it to its owner as a gift. In this case, it is permissible for theowner of the trust to take possession of it and to pretend that he has taken

possession of it on the basis of the gift. However, his disposal over it will thenbe by virtue of his previous ownership,not by virtue of the gift. The assumptionof the task of flogging al-Walid b. 'Uqba by the Commanderof the Faithful isto be interpreted in the same manner.24

Pious men and scholars have always at various times accepted offices onbehalf of the unjust rulers for some of the reasons which we have mentioned.The tenure of office on behalf of an unjust ruler is, when there is something ofthe aforementioned in it that makes it good, only in appearance on behalf of

the unjust ruler. Intrinsically, it is on behalf of the true Imams-peace beupon them-because they have given permission for the tenure of officeunderthe conditions which we have mentioned. The office holder thus took it ontheir order and is in reality holding office on their behalf and acting inaccordance with their command. In that regard, sound tradition has beentransmitted that it is permissiblefor anyone in this situation to administer the

legal punishments, cut the hands of thieves, and do whatever the law requiresof these matters.25

If it is said: Is it not the case that through his tenure of office he is

24This refers to the well-known reports that 'Ali inflicted the legal punishment (hadd) fordrinking wine on the Umayyad al-Walid b. 'Uqba during the caliphate of 'Uthmdn. The law

generally reserves the authority for the administration of badd punishments to the imam.

Al-Murtad.evidently wants to make the point that 'All in administering this punishment

must have been acting by virtue of his appointment as the rightful imam by the Prophet, not

by virtue of his election to the caliphate which took place only later.25 It is not clear which specific traditions

al-Murtad.

had in mind here. That the Imamshad authorized the Shi'ite scholars of the law to carry out legal punishments if they were in a

position to do so was affirmed by Shaykh al-Mufid, the teacher of

al-Murtad.,

in his al-Muqni'a(al-Hurr, Wasd'il, Ix/1, 338). Shaykh al-Tfisi, too, in his K. al-nihdya (Beirut, 1390/1970, 301)maintained that an official appointed by an unjust ruler to execute legal punishments was

permitted to do so whenever he could apply the correct rules of the shari'a. He should believe



A TREATISE OF THE SHARIF AL-MURTAIA 27

strengthening the unjust ruler and giving the appearance that obedience tohim is a religious duty ? This is inevitably an aspect of evil which is an offenceon his part due to his holding the office. We say: If the unjust ruler has

gained control of the religion, it is inevitable for everyone who is in his countryand belongs in appearanceto his subjects that he extol him, display reverenceto him, and submit to his orders as if obedience to him were a religious duty.If therefore this office holder on his behalf had not accepted any office,he would

necessarily have had to slip away from him while still displaying all the kindsof reverence which we have mentioned out of precaution (taqiyya)26 and fear.His holding officethus does not lead him into anything which would not havebeen necessary for him if he had not accepted the office, while through theofficehe is enabled to order what is properand to prohibit what is reprehensible.Thus it is obligatory that he seek to attain to that through the office.

If it is said: Is it your opinion [that it is licit for him to accept the officeeven] if he considers it likely that just as he would be enabled to order some

good and forbid some evil he would also be obliged in this office to do repre-hensible, evil acts which without holding this office he would not be obligedto do, yet he would not be able to refrain from them ? We say: If he couldfind no way to avoid these evil acts and the tenure of the office were inevitablya cause for that and if he would not accept it he would not be obliged to dothese evil acts, then the acceptance of the office is evil and he is not permittedto take it voluntarily.

If it is said: If he is compelled to kill persons the shedding of whose bloodis

prohibited justas he was

compelledto

acceptthe office,do

youhold that it is

permissible for him to kill those persons ? We say: That is not permissiblebecause compulsion is of no legal consequence in cases involving the sheddingof blood. He is not permitted to ward off harm from himself by inflictingsuffering on others in an improper way. It is not licit as statements of our

Imams-peace be upon them-have been widely transmitted to the effect thatthere is no precautionary dissimulation (taqiyya) in matters of blood, even

though it makes licit everything else in the case of fear for life.27If it is said: What is your opinion concerning this office holder for the

unjust rulers whose intention in taking the office is only to support legitimaterights, if someone of the people hinders him from taking the office or from

exercising his functions in it or if someone seeks to interfere with his purposes ?What do you say about preventing him who interferes by coercion and byfighting and killing him ? We say: If this tenure of officeis properor obligatoryin the presence of the conditions of its obligatoriness and if it is, as we have

shown, in effect on behalf of the rightful imam and legitimate ruler, even though

in this case he is acting with the permission of the true ruler, i.e. the Imam, and the faithful areobliged to aid him in his endeavours. The question remained, however, controversial.

Muh.ammad. Idris al-'Ijli al-Hilli (d. 598/1202) in his K. al-sard'ir (Tehran, 1390/1970, 161) claimed thatal-Tfisi's thesis was based on a single narration which could not invalidate the consensus of allMuslims that the execution of 4uditd was a prerogative of the Imams and their authorized

judges. The Muhaqqiq al-Hilli in his Shard'i' al-Isldm (ed. MuhIammadJawid Maghniyya,Beirut, n.d., i, 160) mentions both theses and indicates his preference for the view that the

hudfid cannot be carried out in the absence of the Imam, describing it as the more circumspect(abwat). Similar is his treatment of the question in his al-Mulhtasar al-ndfi' (Najaf, 1383/1964,146). The 'Allima al-Hiilli,on the other hand, upheld the contrary thesis that the Imami scholarsof the law are permitted to carry out the legal punishments during the ghayba and must beaided in this by the believers (see

S.diqMahdi al-Husayni, Sharh tabsirat al-muta'allimin, I,

Najaf, 1382/1962, 300).26 Traditions of the Imams enjoining obedience to the unjust ruler on the basis of taqiyya

are assembled in al-Hurr, Wasd'il, vI/1, 471 f.27Relevant statements of the Imams are quoted in al-Hurr, Wasd'il, vI/2, 483.

VOL. XLIII. PART 1. 3



28 WILFERD MADELUNG

in inconsequential appearance it seems to be on behalf of someone else, thenthe rule concerning someone hindering and resisting it is the same as the rule

concerningsomeone

hinderingthe tenure of office of the

person appointed bythe just imam with regard to preventing him by killing or fighting or othermeans of coercion.

If it is said: How can it be known that this man who in appearance is

holding office on behalf of the unjust ruler is rightful so that to resist and

oppose him is illicit, while apparently he is holding officeon behalf of an unjustruler against whom fighting the religious war (jihad) is obligatory and whoseorders it is improperto confirm ? If you say the way to that is that when wefind someone who believes the true faith voluntarily holding office on behalfof the unjust rulers and usurpers, we know that he did not seek this exceptfor a sound objective necessitating it, it will be said to you: How can this

be a sound way since it must be admitted that someone believing the truthmay disobey God by accepting an office on behalf of an unjust ruler for some

worldly purposes and benefits so that hindering and preventing him would notbe improper? We say: In this situation, judgment must be based on over-

whelming presumption (ghalabatal-zunin) and the strength of indications. Ifthis office holder is dissolute and iniquitous and has usually been involved inevil matters and committed forbidden acts and we see him accepting officefor the unjust rulers, the presumption will inevitably prevail that he acceptedit in accordancewith his habit of crime and immorality only for worldly aims,so that it is obligatory to prevent and opposehim and desist from enablinghim.

If, however, he habitually acts in accordance with religion and respectabilityand refrains from forbidden matters and we see that he has accepted office

voluntarily, without duress, for an unjust ruler, the presumptionis strong thathe did this by his choice only for one of the previously mentioned religiousmotives. In that case, it is illicit to hinder him and he must be enabledto do so.If in some situations the matter is ambiguous and the indications are con-

tradictory and the presumptions balanced, it is obligatory to desist from

hindering and opposing him in any case, because we have no assurancein this

opposition against its occurring n an evil mannerand it is obligatory to refrainfrom anything in which there is no assurance against an aspect of evil. This

situation occurs in different varieties of conduct and kinds of action moreoften than can be counted. Thus if we were accustomed in some person to

licentiousness, dissolute life, drinking of wine, and frequenting of localities of

disgraceand would see him sometimes enter a tavern without knowing whetherhe was entering for an abomination or in orderto censurethose drinkingwine,it would be obligatory for us, in view of the strength of our presumptions ofevil from him based on his constant habit, to hinderand stop him from enteringif we were capable of it, even though, on the weakest and remotest kind of

presumption, it is conceivable that he would have entered in order to censurethe drinking of wine. But if we were to see someone who usually acted in

accordance with respectability and religion and censure of what is repre-hensible entering a tavern, it would not be properto prevent him from enteringbecause the presumption would spontaneously arise and preponderatethat he

would not enter but for a purpose required by religion, either for censure orfor something else. And if we were to see someone entering of whom we didnot know a good or bad habit, we would also abstain from hindering himbecause it would be possible that he was entering for a good purpose and therewas no apparent evidence of evil intent.

If it is said: How is the judgment concerning someone who takes office



A TREATISE FTHESHARIF L-MURTApA 29

for an unjust rulerwith the aim of accomplishing through this officethe orderingof what is properand prohibiting of what is reprehensibleand he combines thisaim with the attainment of some worldly benefits, either in an improper or

a licit way ? We say: The criterionfor the sincerity of an act for some purposeis that without this purpose he would not have done and undertakenit, thoughit is possible that there were some other purposes involved in it to which thisrule does not apply. If this office holder accepted the office and entered itwhen its tenure satisfied only religious aims and no worldly ones, and wouldnot have ventured upon it if it satisfied only worldly but no religious aims,this would be an indication that his aim in it was founded in religion, even

though it is possible that another aim, not primarily intended, was combinedwith it. If the matter was the reverse of this, then the sincere, primarilyintended aim was based on wordliness, and in this case his tenure of office

is evil.If it is said: What is the correctinterpretation of the statement transmitted

from

al-S.diq28-peace be upon him: The atonement for working for the

government consists in taking care of the needs of the brethren ? 29 Does thisnot necessarily imply that working on behalf of it is an act of disobediencetoward God and a sin, so that an atonement is needed for it ? Yet you havestated that it is good and obligatory in some cases. We say: It is conceivablethat he-peace be upon him-meant by this that taking care of the needs ofthe brethren in faith removes the tenure of office from evil to goodness andeffects its freedom from blameworthiness, just as an atonement abrogates the

blameworthiness from someone committing an act requiring an atonement.In this case, he meant to say that taking care of the needs of the brethrenenters it into the category of goodness, and he said merely metaphorically thatit is an atonement. It is also possible, however, that he meant by this that ifsomeone takes office for an unjust ruler without seeking through this officethe ability to support rights and to reject false claims and later he takes careof the needs of the brethren in a manner deserving gratitude, this tenure ofofficewas originally evil, but it is possible that the punishment for it be droppedand rescindedfrom its agent by his doing a specificallyintended act of obediencetoward God, and this act of obedience consists in taking care of the needs of

the faithful brethren. This interpretation is more evident. Praise be to God,the Lord of the worlds and blessings upon Muhammadand his Pure Family.

III

Al-Murtad;'s discussion is based on systematical rational argument morethan on quotations of the transmitted statements of the Imams. This is

consistent with his general critical view of had7th, ncluding Imdmi tradition,which led him to reject totally the validity of the akhbaral-dhddas a sourcefor the law.30 His kaldm theologian's method is apparent in his citing and

refuting objectionsof an

imaginary opponent,and his

Mu'tazili tendencyis

reflected in his treatment of lying as rationally and inherently evil.31 Yet it is

28 i.e. Imam Ja'far al-S.diq.29Kaffarat al-'amal ma'a 'l-sul.tn qa4d' hawd'ij al-ikhwdn. The statement is quoted in Ibn

Babfiya, K. man 1i yabduruhu'l-faqih, p. 358.30See R. Brunschvig, 'Les Ugfil al-Fiqh Imamites a leur stade ancien', in Le Shiisme

Imdmite, ed. T. Fahd, Paris, 1970, 210; W. Madelung, 'Imamism and Mu'tazilite Theology ',ibid., pp. 25 f.

31See for instance the discussion in 'Abd al-Jabbdr, al-Mughni, xvii, ed. Mugtafd al-Saqq5,Cairo, 1385/1965, 156.



30 WILFEJ{D MADELUNG

also evident that he is fully aware of the traditional Imami doctrine, based onthe statements of the Imams, concerningthe legality of workingfor the unjustruler and that his treatment of the

questionis

largelyconditioned

byit.

After al-Murtada,no independent treatises are known to have been writtenon the subject, but it was commonly treated in the Imdmifiqh works. Of the

greatest influence on the later Imami jurists was evidently the expositionwhich the Shaykh al-Tiasi(d. 460/1067), student of al-Mufid and al-Murtada,presented in his Kitab al-nihayafl mujarradal-fiqhwa 'l-fatdwa.32 Al-Tfisi'smore succinct and juristically formulated discussion takes up only the mostbasic points raised in al-Murtadd's treatise and in general agrees with itssolutions. It introduces, however, somenotable elaborationsand modifications.While al-Murtadaleft his concept of 'the rightful and just ruler' undefined,

al-Tfisi describes him as the one who 'orders what is proper, forbids what is

reprehensible, and places things in their places (al-wJdi' al-ashyd'i mawddi'-ahd) ,.33 It is clear that this definition does not specifically mean the Imamsbut any ruler who acts in accordancewith their commands (i.e. the shar~'aasdefined by them) and who recognizes their rank. This view is consistent, of

course, with the basic argument of al-Murtaddfor the legitimacy of the officeof anyone 'ordering what is proper and prohibiting what is reprehensible',that he is in fact acting on behalf of the Imam, on whoever's behalf he maynominally be holding his office. By extension of this principle, any ruler

recognizingthe Imams, i.e. any Imdmi ruler, who obeys and applies the Imdmi

shar'ia and is preparedto turn over the rule to the Imam should the occasion

arise, is also acting on behalf of the Imam and must be considered a ' rightfuland just ruler '. There is no reason to doubt that this was also the view of

al-Murtada. The question deserves particular notice since Western scholarshave sometimes expressed the opinion that according to Imami belief all

government in the absence of the Imam is necessarily and inescapably illegiti-mate. This is clearly not the case. It is true that primary and inherentlegitimacy belongs only to the rule of the Imam. In the absence of the Imam,however, any ruler or government acting in his name and in accordance withthe Imdmi law acquires a derivative, functional legitimacy and can command

not only the sincereobediencebut also the loyal supportof the faithful. Al-Tfisi,

like al-Murtadd,states that holding office on behalf of the just ruler is lawfuland desirable (muraghghabih) and may reach the degree of obligatoriness.In respect to holding office on behalf of an unjust ruler, al-Tilsi is, however,

more reserved than al-Murtadd. If someone knows or considers it likely thathe will be able to 'order what is proper and forbid what is reprehensible',his taking the office is merely desirable (yustahabb)according to al-Tfisi, not

obligatory (wajib), as al-Murtaddmaintained. If someone is threatened withsome harm or hardshipwhich does not reach the level of loss of life or depriva-tion of property (salb al-amwdl) if he does not accept an office in which he

probably would not be able to avoid neglecting some duties or committing

some evil acts, it is preferable for him, al-Tilsi states, to bear the harm. Hethus implicitly placed acceptance of the office under such circumstances inthe category of reprehensible (makriih) but not forbidden (harim),34while

32 Al-Tilsi, al-Nihdya, 356 f.33For the meaning of the latter phrase compare al-Nihdya, p. 303, where it is qualified with

min al-sadaqdti wa 'l-akhmisi wa-ghayridhdlik, i.e. who delivers the alms taxes and the fifthsto their proper recipients under ImImi law.

34The Muhaqqiq al-Hilli, whose treatment of the matter in his Shard'i' al-Islam (1, 164) isbased on al-Tilsi's, places acceptance under these circumstances in the category of permissiblethough reprehensible (ja'iz 'ala kardhiya).



A TREATISE OF THE SHARIF AL-MURTADA 31

al-Murtadahad regarded acceptance or non-acceptance as equally permissible.And in the case of someone accepting office under threat to life or property,

al-T-isistresses his

dutyto act, as far as

possible,in accordance with the law

and to protect, at least secretly, the brethren in the faith from the unjustexactions of the oppressor,a matter which al-Murtaddhad touched upon onlymarginally.

Al-Tfisi's doctrine on the subject was summarily restated by the MuhaqqiqJa'far b. al-Hasan al-Hilli (d. 676/1277) in his renowned Shard'i' al-Islam3and, even moresuccinctly, in his al-Mukhtasaral-nfi'.36 A1-Hilli hus supported

al-Tiisi's view that accepting officeon behalf of the unjust ruler is, if the holder

can avoid illicit acts and fulfil the duty of ordering what is proper and for-

bidding what is reprehensible, merely desirable, and this remained the

prevalent opinion among Imami scholars of the law. The thesis that it was

obligatory was according to Shaykh MuhammadH.asan

al-Najafi (d. 1266/1850), author of a voluminous commentary on

al-H.illi's

Shard'i'al-Islsm,

upheld by only one scholar, and al-Najafi's referencein this regardseems to beerroneous.37 Only in most recent times has the view of the obligatorinessgained some support again, on the same groundsas were argued by al-Murtada,viz. the obligatoriness of what the office enables its holder to do. This was theconclusion reached by Shaykh Murtada al-Ansari (d. 1281/1864), founder ofa new school of methodology in Imami us~ilandfiqh,38n his Kitab al-makasib,and is supported by the contemporary commentator of this work, Muhammad

S•diq al-H.usaynial-Rhini.n39

35 , p. 164.36p. 146.31 See the quotation of al-Najafi's al-Jawdhir (Jawdhir al-kalim fi shark shard'i' al-Islim)

in MuhammadS.diq

al-Husayni al-Riihni, Fiqhal-S.diq,

second ed., Qumm, 1389/1969, xI, 375,according to which al-HIilliin his al-Sard'ir held acceptance to be obligatory. This must referto Ibn Idris al-Hilli, K. al-sard'ir al-bawifi takrir al-fatdwi. The latter, however, fully supportsthe doctrine of

al-.Tisi(al-sard'ir, p. 203).

38 On Murtaddlal-Annari, see H. Algar, Religion and State in Iran 1785-1906, Berkeley andLos Angeles, 1969, 162 ff.; H. L6schner, Die dogmatischenGrundlagendes si'itischen Rechts,K6ln, 1971, 34.

39 Fiqh al-Sadiq, xI, 377.

legal working for the government is shia islam mas'ala fi'l 'amal ma'a...

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