The re-Islamization of law by the leadership of the Islamic Republic following the 1979 revolution immediately clashed with the realities of contemporary Iranian society. [1] This clash engendered divisions between the parliament and the Guardian Council (a body of faqihs [2]] tasked with safeguarding laws’ conformity to Islam and the constitution). [3] Numerous government projects and decisions adopted by the parliament were rejected by the Guardian Council on the grounds that they did not conform to shari‘a (Islamic law). The Council’s hard-line policy generated continuous conflicts, necessitating the intervention of Ayatollah Khomeini, Supreme Guide of the Islamic Republic.
Initially, the opposing party invoked shari‘a (or a particular interpretation thereof) to justify its “transgressions” of the Guardian Council’s conception of the law. [4] Yet this strategy did not always enable legislators to outmaneuver the Guardian Council. Some enduring conflicts could only be resolved by appeal to a higher authority. Two examples are illustrative: the labor law and the ta’zirat law.
After many debates, the parliament finally adopted labor laws in November 1987. The labor law regulated labor contracts by placing them under government control, thereby ensuring employees’ safety and security. In December 1987, the Guardian Council rejected the law, claiming that labor contracts pertained to the private domain in Islam. Thus, contracting parties could not be compelled to apply labor laws nor could they be penalized for the abrogation of such laws. [5]
More disagreements soon arose between the parliament and the Guardian Council over the Islamic character of the laws. The sharpest dispute concerned an essential part of the Islamic penal code known as the ta’zirat law. [6] According to shari‘a, sentences are not stipulated in advance, but are subject to each judge’s jurisdiction. In 1982, the parliament’s Judicial and Juridical Commission submitted a bill proposing to determine and codify sentences for various misdeeds in advance. Invoking shari‘a, the Surveillance Council rejected the bill, emphasizing that a verdict was the judge’s exclusive prerogative and could not be preempted by legislation. [7] The Assembly quickly deployed legal arguments calling for the uniform application of the law. Conflicting approaches to the ta’zirat law persisted for years. They were only resolved when Ayatollah Khomeini voiced support for the Judicial and Juridical Commission regarding the predetermination of sentences. Ayatollah Khomeini’s decision departed from a strict interpretation of shari‘a, but the Supreme Guide’s intervention did not put an end to the conflict. The Guardian Council continued to demand a strict application of shari‘a, thus paralyzing Iran’s judicial system. [8]
Two Approaches to Shari‘a
Legal disagreement rapidly moved beyond questions of jurisprudence, sparking general dissent among faqihs. Two key trends emerged, one dominated by partisans of traditional shari‘a (feqh-e sonnati), the other calling for a dynamic shari‘a (feqh-e puya). The first group advocated a shari‘a based on the strict application of classical texts. They opposed any form of taxation besides those mentioned by shari‘a: the khoms (a tithe of one fifth of every Muslim’s income) and zakat (alms giving as prescribed by Islam).
Defenders of the traditionalist conception of shari‘a believe that divine laws are immutable and eternal until resurrection day. All legal modes of enforcement have been determined and not even the Prophet Muhammad himself could alter them. The implementation of shari‘a should not be affected by any changes due to time, space, science or technology. So even though black-market dealings in wheat, barley, dates and raisins are condemned, the rule cannot, by extrapolation, be extended to rice, because rice was not used in the Prophet’s day. [9]
The second group, favoring a dynamic interpretation of shari‘a, included faqihs and Muslim jurists who, although striving to keep Iranian laws within shari’a’s framework, found it necessary to introduce modifications into shari‘a itself. They attached great importance to the notion of ijtihad. “If the concept of ijtihad is not alive and dynamic, if the door to ijtihad is to remain shut once and forever, then shari‘a will become a lifeless corpse. We must be dynamic and open new pathways in this respect. The raw material is available: verses from the Qur’an, the hadiths, ijma‘ (consensus of faqihs on specific subjects), logic, ijtihad and the dynamics of shari‘a.” [10]
Ijtihad in shari‘a involves reasoning by a faqih who, basing his judgments on the Qur’an and the hadiths, elicits answers and commandments for issues not clarified in the Qur’an and the sunna (the deeds and sayings of the Prophet and the twelve Imams). The faqih employs logic not in a random or freewheeling fashion, but solely to elicit the truth from the Qur’an and the sunna. Shi‘i faqihs avoid recourse to reasoning by analogy, as well as istihsan (the principle emphasizing public interest), which they attribute to Sunni interpretations of shari‘a.
Proponents of a dynamic shari‘a are currently being accused by their conservative adversaries of restoring to Sunni methods of reasoning. Their verbal denials notwithstanding, they do make recourse to such methods of interpretation. Ayatollah Khomeini himself relief on istislah to impose one of his politico-judicial decisions. Generally speaking, the partisans of dynamic shari‘a reinterpret laws in order to tackle social realities while maintaining the Islamic framework and principles of the laws.
The views of the partisans of a dynamic shari‘a are not new in the Islamic world. Almost a century ago, similar debates raged among Sunni jurists. As early as 1898 the Egyptian jurist Muhammad ‘Abduh called for a reinterpretation of the principles of diving revelation in order to facilitate legal reforms. Other scholars, such as Iqbal, developed this theme and declared that Islam’s adaptation to the modern world implied that Muslims had not only the right, but also the duty, to exercise ijtihad or independent judgment. [11] Before the revolution in 1979, many Iranian faqihs, such as Ayatollah Motahhari, debated the need to adopt a dynamic interpretation of shari‘a to confront modern problems. Currently, these two opposing conceptions of shari‘a have proponents and opponents in Shi‘i theology schools at Qom.
Government Rule
While the debate over the ta’zirat law unfolded, contention over the issue of government commandment (hokm-e hokumati), as opposed to shari‘a rule (hokm-e shar‘i), had reached a climax. This debate marked a turning point for Iranian legislation.
The notion of government commandment (hokm-e hokumati) emanated from Ayatollah Khomeini’s political doctrine of velayat-e faqih, the supreme authority of the most competent religious scholar in his capacity as representative of the Prophet or the Hidden Imam. Ayatollah Khomeini, the founder of the Islamic Republic, distinguished between shari‘a rule and governmental commandment. Shari‘a rules were established by God because such was His verdict. Examples of such rules are prayer, fasting and pilgrimage, which did not emanate from the Prophet; his function was merely to ensure adherence to these rules. Thus, to pray is to obey God. The Prophet, on the other hand, has his own commandments, which are governmental, covering such matters as defense, borders and taxes. Nevertheless, it is God who commands obedience to the Prophet and the Imams.
To justify the institution of velayat-e faqih theologically, Ayatollah Khomeini asserted that the power to govern and administer the country and to enforce shari‘a law is placed in the hands of a just and pious tutor well-versed in divine law. Such a tutor cannot be but a faqih. Power is entrusted to him by God without any intermediaries, reflecting the proper order during the Twelfth Imam’s absence. Consequently, the right of guardianship that existed for the Prophet and the Imams applied also to the faqih: to govern the country in accordance with divine rule, the highest Islamic authority establishes orders to which everyone, including all other faqihs, must obey. [12]
Government Rules: Superior to Shari‘a
Relying on this principle, which initially seemed to be rooted in political theory or public law, Ayatollah Khomeini confronted the challenges of applying shari‘a in legislation. Going further, Ayatollah Khomeini asserted that government commandments could even oppose shari‘a: The vali-e faqih (the Supreme Leader), could, if need be, issue edicts counter to religious commandments. In response to a query from Ayatollah Khamene’i about the extent of the vali-e faqih’s power, Ayatollah Khomeini replied:
[G]overning is one of the derivatives of the omnipotent authority of the Prophet of God. It is a primary principle of Islam, overriding those that are secondary in nature, including even prayer, fasting and pilgrimage. The ruler (hakem) can order the demolition of a mosque or house standing in the way of a road by reimbursing the owner. [13] … The Islamic government can unilaterally rescind any contract with the population, even one formerly approved and conforming to shari‘a, if it is deemed to be against the interests of the country and Islam. The government can forbid any act, religious or non-religious, when it is against the interests of Islam, for as long as necessary. It can temporarily forbid pilgrimage, one of the pillars of Islam, if it happens to be against the interests of the Islamic country. [14]
The principle of government rule is not new in the Muslim world. As early as the eleventh century the concept was familiar to Sunni faqihs as rule of the sultan (ahkam al-sultania). [15] Yet in Shi‘i Islam, the doctrine of velayat-e faqih is relatively recent. It only began to take shape in the nineteenth century in the minds of some faqihs, and was recently articulated as a full-fledged doctrine by Ayatollah Khomeini. [16]
Thus, the term “hokumati” (governmental) now refers to all laws outside the rule of shari‘a. For example, under shari‘a, the black market consists of only six products. All other goods exchanged under the jurisdiction of government commandments in the Islamic Penal Code.
The Regime’s Supreme Interest
Government commandments were invoked to justify the non-religious nature of certain decisions, but Ayatollah Khomeini went further by creating the Chamber for the Safeguarding of the Regime’s Supreme Interest. As noted earlier, the interminable conflicts between the parliament and the Surveillance Council had prevented the adoption of various laws, and not even the personal intervention of the Supreme Guide had broken the deadlock. In response to requests that the vali-e faqih intervene and remove the obstacles to legislation created by the Surveillance Council, Ayatollah Khomeini wrote on February 6, 1988:
[I]n case the Islamic Assembly and the Surveillance Council fail to reach an agreement in matters concerning shari‘a and laws, a chamber… for the safeguarding of the regime’s supreme interest must be created… All honorable members must bear in mind that the safeguarding of the Islamic regime’s supreme interest is a vital necessity, the neglect of which would roll the knell of our dear Islam…Today the Islamic world looks upon the Islamic Republic of Iran as the state on which the answers to all its problems are written. The regime and the population’s supreme interest is of utmost importance; its neglect would endanger the Islam of the disinherited for an indefinite period of time, leaving the victory to the American Islam of the powerful and the arrogant, backed by billions of dollars from domestic and foreign stooges. [17]
Ayatollah Khomeini’s comments heralded the creation of a chamber that arbitrates conflicts between the parliament and the Guardian Council. Henceforth, the concepts of “interests” (maslahat) and “the demands of the times” (moqtaziyat-e zaman) gained support from numerous faqihs. Akbar Hashemi Rafansjani, then-president of the Islamic Assembly, made the following statement regarding Ayatollah Khomeini’s decision: “The framework of ijtihad in Shi‘ism has finally been clarified. The demands of time and place must henceforth be taken into account. There was a gap in our ijtihad which has now been filled.” [18]
Adapting Laws to Reality
All bills previously deemed contrary to Islam by the Surveillance Council were adopted by the Chamber for the Safeguarding of the Regime’s Supreme Interest. With the adoption of the ta’zirat law, the judge’s arbitrary verdict was replaced by legally predetermined sentences. Following the adoption of labor laws, contracts formerly considered private were now regulated government laws.
One of the distinguishing characteristics of lex talionis (“an eye for an eye”) adopted in 1982 was the private nature of homicide and assault and battery cases, which under pre-revolutionary law had belonged to the public sphere. The private party — the victim or his family — alone determined the fate of the accused. The private party could demand reparation identical to the hard suffered by the victim (i.e., a death sentence for voluntary homicide, or identical corporal punishment for assault — in short, an eye for an eye). Or the claimant could ask for financial compensation or even grant forgiveness. One of the intrinsic difficulties in lex talionis emerged in cases where the claimant party was non-existent or inclined to forgiveness. This happened when a family link existed between the murderer and the private claimant party, e.g., when spouse murdered spouse and the children constituted the sole private party. In cases of assault and battery, the victim often settled for financial compensation (diyeh) and the guilty party was released. Such an outcome, however, was unacceptable to society, so legislators strove to modify these laws.
In 1991, the Islamic Penal Code adopted by the Chamber for the Safeguarding of the Regime’s Supreme Interest stipulated prison terms of three to ten years for anyone guilty of manslaughter who had been forgiven or had paid financial compensation. The same applied to those guilty of intentional assault and battery. Punishments for homicide and assault were no longer left up to the two parties; victimizers were now accountable in the public sphere as well.
Cases referred to courts of appeal constituted another cause of contention within legislative and judiciary bodies, since Shi‘i faqihs generally condemn appeals if a verdict has been pronounced by a mojtahed judge. While amending penal procedure in 1982, the legislators canceled the possibility of appeal (except in three cases) that had existed under older laws. [19]
The prohibition of appeal stirred debate among Islamic leaders. The Guardian Council rejected all forms of appeal in the name of shari’a. The Council’s opponents, on the other hand, insisted that their everyday handling of judiciary matters clearly showed the unfeasibility of such a policy. To counter the Guardian Council’s arguments, they emphasized the fact that mojtahed judges were bound to commit mistakes.
In this tense atmosphere, the partisans of appeal increased in number. Appellate courts have now been reestablished. [20] This trend represents a partial reversion to the judicial system which existed before the revolution. [21]
The Will to Islamize vs. Reality
In August 1982 Ayatollah Khomeini stated that “the old judicial apparatus must be transformed into an Islamic justice. Any law which is incompatible with shari’a is not a law… The Guardian Council and the Higher Judiciary Council must…annul old laws which are contrary to shari‘a law. Anyone who applies them is guilty and must be put on trial and receive the punishment he deserves.” [22]
Realities contradicting Ayatollah Khomeini’s wishes were, however, quite compelling and required subsequent revisions of Islamic laws. Each revision was ushered in by fatwas issued by Ayatollah Khomeini himself. Many other leaders of the Islamic Republic had to acknowledge these undeniable social and economic realities.
Significantly, all legal changes were introduced by legislators responding to the practical difficulties of applying shari‘a (in the strict sense of the term), despite the coercive force at the authorities’ disposal and the impossibility of any criticism whatsoever emanating from the public of legislators. Yet the changes did not remedy the shortcomings. Legal revisions are partial and do not address all the aberrations currently affecting the laws, and some questionable laws are willfully maintained as a symbol of Islamic shari‘a. The lex talionis and the preservation of certain sentences, such as flogging or the amputation of limbs in cases of theft, are prime examples. It should be added that such punishments are not meted out rigorously or as often as required in practice. Yet inequalities in law persist regarding women and minorities. To attempt far-reaching and simultaneous reforms or to admit the inapplicability of certain shari‘a precepts would throw Iran’s entire legal system into question. Even proponents of a dynamic shari‘a, wish to safeguard its framework and substance, introducing modifications only when necessary.
Pressure from Civil Society
Thanks to the opening up of the Iranian political scene during the last few years, thinking has evolved among some faqihs and Muslim intellectuals. Some ideas, more radical than the concept of dynamic shari‘a, go so far as to question the validity or necessity of implementing shari’a at all. This emerging post-Islamist trend stands in sharp distinction to the two aforementioned currents: dynamic and traditional shari‘a. [23] Parallel to these intellectual developments, Iran has witnessed increasing theological debates initiated by secular jurists and women lawyers, especially in connection with family rights and women’s rights. Magazines and periodicals addressing women’s issues have proliferated. Consequently, Iranian society is keenly aware of juridical issues and the existing system of laws. In 1998, for the first time in the Islamic Republic, a law was modified due to public pressure. A scandal erupted when a girl, Ariane, died from ill treatment and beatings at the hands of her abusive father. He denied his daughter food and beat her brutally. The mother was aware of the situation and had been desperately trying to gain custody of her daughter by appealing to the courts. Under the laws currently in force, however, no judge could rule in her favor. Ariane’s tragic death horrified public opinion. Serious feminist journals covered the affair in detail. The public expressed its support for the mother and voiced criticism of the law basked on Shi‘i shari‘a that automatically and unconditionally awards custody to he male parents (boys at the age of two and girls after age seven). So great was public indignation that women parliamentarians proposed an amendment denying unworthy fathers custody of their children. Although the new law is not adequate to current realities, it represents a first step towards greater equality between fathers and mothers in custody disputes. [24]
Confusing Judiciary Offices
Once again, after several years of parliamentary skirmishes, the parliament, particularly its most conservative members, has devised another masterpiece of Islamic legislation: a law placing pre-trial as well as trial proceedings at the hands of the judge. The new law practically obviates the prosecutor’s role by assigning his or her tasks to the judge, who will have to become an expert in a great number of fields — civil, familial, penal and others. Since its inception, this bill has elicited strong protests from Iranian jurists. Even judges favoring Islamization have expressed concern. Only two years after its adoption, many legal experts are calling for its revision. Initially, the law’s shortcomings and incompatibility with the needs of contemporary Iranian society alarmed only jurists, but extensive media coverage of the trial of Gholamhossein Karbaschi, mayor of Tehran, incited public opinion against this law. Throughout the televised trial, Iranians witnessed the law’s incoherence and shortcomings firsthand. Karbaschi expressed indignation over the fact that the judge in his trial had also acted as pre-trial persecutor. Karbaschi, a prominent figure in the Islamic Republic and a militant supporter of the Islamization of all facets of Iranian society, was now praising a system, established in 1911, which separated judicial offices! The press revealed, other legal inconsistencies during Karbaschi’s trial, and before the trial’s end the minister of justice announced the government’s readiness to investigate the laws in question. [25]
Special Tribunal
The Special Clergy Court, which sets the clergy apart from the population concerning ordinary crimes, is Iran’s latest legal aberration. The court owes its creation to political, not theological, precedent. Its purpose is to stifle discordant clerical voices and to neutralize opposition to the religious government in power. Insofar as this tribunal can defrock a clergyman, it resembles the Inquisition. The tribunal has caused a public uproar by ordering the arrest of Mohsen Kadivar, a prestigious clergyman who questioned the notion of velayat-e faqih, and by defrocking Mohsen Saidzadeh, a clergyman who criticized current laws. The press has avidly criticized the tribunal, students have openly protested it and some members of the Islamic Assembly have called for its dissolution. Since the rationale for this tribunal has nothing to do with shari‘a, challenging its existence is not tantamount to questioning Islamic laws. Nevertheless, the protest movement against it illustrated the public’s interest in legal matters and people’s growing desire to participate in the legislative process. Prospects for radical change concerning the penal code, civil and penal procedures and family law now seen inevitable.
Endnotes
[1] Iranian laws had been modified after the Constitutional Revolution in 1906 and the advent of the Pahlavi Dynasty. Inspired by European law — notable Belgian, Swiss and French — the penal code and the penal procedure code has been entirely overhauled. The civil code, on the other hand, had remained largely faithful to shari‘a, except for its mode of classification and stance toward family rights.
[2] A faqih is a jurisconsult in Muslim law and a doctor in religion.
[3] The fourth Principle of the Construction of the Islamic Republic of Iran states the following: “All laws and regulations, whether civil, penal, financial, economic, administrative, cultural, military, political or otherwise, must be based on Islamic precepts. This pristine principle governs all principles of the Constitution, as well as other laws and regulations. The faqihs comprising the Guardian Council are tasked with the application of this underlying principle.”
[4] Azadeh Niknam, “Les revers de l’islamisation du droit en Iran” [Setbacks in Islamization of Law in Iran], Les Cahiers de l’Orient 46 (Spring 1998).
Mohammad Hashemi, Negareshi bar Qanun-e Jadid-e Kar-e Jomhuri-e Eslami-e Iran [An Examination of the New Labor Laws of the Islamic Republic of Iran] (Tehran: Shahid Beheshti University Press, 1991).
[6] Shi‘i penal law is divided into four branches. First are the hodud laws, which concern crimes of a sexual nature, certain acts of theft, false accusation of adultery, the consumption of alcohol, apostasy, rebellion against the Islamic state and banditry. Next come the qesas laws (lex talionis) and then the diyat laws, which apply to homicide and voluntary and involuntary assault and battery. Finally, there are the ta’zirat laws, which include all those criminal deeds not mentioned in the previous three branches of law or which, if declared, are considered relatively minor; the punishment of such offenses is not defined. Initially and for a number of centuries, misdeeds coming under the ta’zirat laws were few in number. However, given the “catch-all” nature of this branch of Shi‘i penal laws — which by definition includes all crimes not classified under the other three branches — it has continuously widened as social changes have given rise to new forms of criminal actions. Consequently, the ta’zirat have now become the largest branch of the Islamic penal code.
[7] Hossein Mehrpur, ed., Majmu‘eh-ye Nazariyat-e Shora-ye Negahban [Compendium of the Decisions of the Guardian Council], vol. 1 (Tehran: Keyhan Press, 1992), p. 417.
[8] Azadeh Niknam, “L’islamisation du droit penal à l’épreuve des realities en Iran” [The Islamization of Penal Laws vs. the Realities of Life in Iran], Revue des Mondes Musulmans et de la Méditerranée 85-86 (1999).
[9] Ayatollah Azari Qomi, “Nazari bar Feqh-e Sonnati” [A Glance at Traditional Shari‘a] Resalat 494, September 23, 1987.
[10] Ayatollah Musavi Ardebili, “Feqh va Moqtaziyat-e Zaman, Ejtehad dar Bastar-e Tarikh va Ejtehad-e Mamnu‘ [Shari‘a and the Demands of the Times, Ijtihad Throughout History and Forbidden Ijtihad], Keyhan, June 3 and 4, 1987.
[11] Noël Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1964).
[12] Ayatollah Ruhollah Khomeini, Velayat-e Faqih, Hokumat-e Eslami [Jurisconsult Guardianship, Islamic State] (Tehran: Amir Kabir Press, 1979).
[13] Shi‘i faqihs forbid the destruction of mosques as well as compulsory purchase orders and the purchase of property against the owner’s wishes.
[14] Ayatollah Ruhollah Khomeini, Sahifeh-ye Nur, vol. 20 (Tehran: Ministry of Culture and Islamic Orientation Press), p. 170.
[15] Coulson, op cit.
[16] Mohsen Kadivar, Nazariyehha-ye Dowlat dar Feqh-e Shi‘eh [Theories of Government in Shi‘i Shari‘a] (Tehran: Nashr-e Ney Press, 1997).
[17] Hossein Mehrpur, “Sargozasht-e Ta’zirat,” Majeleh-ye Kanun-e Vokala 148-149 (1989), pp. 62-63.
[18] Keyhan, January 1, 1989.
[19] The following are three exceptions: cases where the judge realizes that his verdict goes against shari‘a laws or precepts; cases where another judge discovers that the first one has committed an error in view of shari‘a laws or precepts and the latter admits his error; and cases where the judge is incompetent.
[20] The law specifying the possibilities of an appeal for review (October 1988), the law pertaining to the constitution of repressive courts (June 1989), the law pertaining to the review of verdicts (August 1993), the law pertaining to the constitution of both general and revolutionary courts (July 1994).
[21] Hossein Mehrpur, “Tahavvolat-e Qanungozari dar Amr-e Tajdid-e Nazar” [Evolution in Legislation in Matters of Appeal], Majaleh-ye Qazayi va Hoquqi-e Dadgostari 12 (Fall 1994), pp. 55-56.
[22] Mehrpur, Majmu‘eh-ye Nazariyat-e Shora-ye Negahban, vol. 3, p. 184.
[23] See, among others, the remarks by Mohammad Mojtahed Shabestari and Abdolkarim Soroush in Kiyan 25 (February-March 1999), a special issue on “Religion, Tolerance and Violence.”
[24] Payam-e Hajar 230 (October-November 1997); Zanan 37 (September-October 1997), 39 (December 1997) and 40 (January-February 1998).
[25] Hamid Ayati, “Eslah-e Qanun-e Dadahha-ye ‘Am, Bazgasht beh Avval-e Khat” [Reform of the Law of General Courts: Back to Square One], Hoquq va Ejtema‘ (August 1998), p. 5.
