By Nema
Milaninia
It is difficult to be Muslim in
our community in main part because they have been blamed for what the Iranian
government is and has done. Because it considers itself an “Islamic”
government, many Iranians in the Diaspora utilize the atrocious acts of the
Iranian government to demonize Iranian Muslims or Islam generally. How
many times have you heard or read an Iranian complaining about how the “Arabs”
brought the “foreign religion” and destroyed our beautiful culture, as if to
reject the contributions and identity of Iranian Muslims. In fact, you
will find more prejudice, ignorance and racism in Iranian chartrooms, like
http://www.activistchat.com,
than anywhere else. And yet it is perfectly permissible to be
anti-Islamic, despite the fact that we all agree that it is absolutely
horrendous to be anti-Semitic, anti-Baha’i, or anti-Christian. One way of
countering this problem is by realizing that the Iranian government is not only
unrepresentative, but cannot be Islamic. Rather, that the Iranian
government uses false precepts in order to justify its monopolistic hold on
power.
The Qur’an does not
endorse any specific form of government. Rather, as noted by Khaled Abou
el Fadl, “it identifies specific social and political values that are central to
the Muslim polity (umma) and urges Muslims to pursue and fulfill these
values.” (Abou-Fadl p. 9) As such, only a system which most
effectively helps Muslims promote the moral values underlying Islam is
permissible. (Abou Fadl p. 10) Therefore, it is insufficient that Iran
calls itself an “Islamic state.” Rather, for Iran to be “Islamic” it has
to establish mechanisms and institutions which achieve values central to
Islam.
The Iranian government
calls itself an “Islamic state” because it empowers the foqaha (Islamic
jurists) to assume direct power over the affairs of the state. (Schirazi
p. 12) Under Article 72 of the Iranian Constitution, the Guardian Council
has the power to veto any law passed by the Majles-e Showra-ye Melli (the
parliament) if they contradict Islamic principles. Moreover, under article
110 of the Constitution, the velayat-e faqih (Supreme Leader) has the
final say in both internal and foreign affairs and acts as both a “political
authority and marja’-e taqlid (source of emulation in
Islam).” (Schirazi p. 15) Iranian jurists have justified these
structures based on the Qur’anic command to “obey God, obey the prophet and obey
those in charge among you.” (Qur’an 4:59) This political structure,
however, has no basis either in Islamic jurisprudence nor does it achieve
central Islamic values.
First, the application of
Shari’ah through the state removes its divine character. A state can never
be “Islamic” because the moment God’s law is interpreted and passed through
state agencies it loses its divine character and becomes the subjective element
of a political process. The Iranian Constitution tries to avoid this problem by
empowering the velayat-e faqih as both the religious and political
authority. Article 5 of the Constitution states that during the period of
Occultation, the velayat-e faqih constitutes the leader of the ‘umma
as well as the political leader. Subsequently, both the religious and
political authority of the ‘umma are centralized in the state, and
particularly the Supreme Leader. This establishment violates central
tenets of Islam which separate the divine will of God from the relationship of
humans.
Although the Qur’an
defines the divine will of God, its implementation is not itself divine.
In fact, Imam Ali, who serves as the primary figure of emulation in Shi’ism
following Prophet Muhammad, explained that the Qur’an “is but ink and paper, and
it does not speak itself.” (Abou Fadl p. 16) Even though human beings are
the agents of God, they are not infallible creatures and are bound to make
mistakes regarding implementation and interpretation of God’s rights. (Abou Fadl
p. 17) As such, even something seemingly obvious and clear can be applied
in various ways and even mistakenly. Because of the problem of “agency,”
the state and its functionaries in classical Islamic discourses had to preserve
the distinction between worldly power and the province of law. (Hallaq p.
1708) This is consistent with the Qur’anic admonition that
there is no other source of Islamic law than the word of God. (Qur’an
6:114) The issue of agency is also why Iranian jurists objected to the
notion of velayat-e faqih. Ayatollah Zanjani correctly noted that
“[a]ccording to the unanimous opinion of the Imami Koranic interpreters and
theologians, velayat-e faqih. . . is exclusively reserved for the
rightly-guided Imams. For it does not stand to reason that God, the
All-wise, would bestow the powers of the infallible Imam upon fallible human
beings.” (Schirazi p. 47) Therefore, by using human agency to
interpret and apply the divine law, Iranian institutions can never truly apply
the Shari’ah and become “Islamic”.
Second, there is no
historical precedence in the classical Islamic discourse which characterizes a
state as “Islamic” simply by giving political authority to the
‘ulama. Traditionally, the ‘ulama insisted that the rulers
consult with the jurists on all matters related to Islam. However, the
jurists never personally demanded the right to rule the Islamic state
directly. (Abou Fadl p. 33) For example, in Islam there is no
concept of a state as a legal entity or possible party to disputes, but only the
right of God. (Weiss p. 181) The State was expected to play the role
of enforcer, not the maker, of divine law. (Abou Fadl p. 31)
In line with tradition, in fact, Iranian jurists initially created the Guardian
Council as a consultative body with only advisory roles Thus, the
empowerment of the ‘ulama has no basis in the classical Islamic
narrative. In fact, until recently, neither Sunni nor Shi’ite jurists ever
assumed direct rule in the political sphere. (Abou Fadl p. 33) It was only
when new legal elites and colonial powers took over Muslim lands that Islamic
law was centralized and codified and hence controlled by the state. (Abou
Fadl p. 63) Thus, the Iranian government is a historical anomaly and has
no foundation in the classical Islamic narrative and
tradition.
Lastly, the principle of
velayat-e faqih is inconsistent with Islamic values. The concept of
velayat-e faqih depends on the divinity of the ruler himself. It
was a position intended to be reserved for the Imams, whom were considered to be
divinely guided by God. In fact, Article 5 of the Iranian Constitution
notes that the position of velayat-e faqih is intended to exist only
until the Mahdi returns and assumes power. However, there’s nothing
in Islam which recognizes anyone’s right to claim divineness in politics and
government. Rather, the classical Islamic discourse indicates that the
ruler was limited by divine law and not its maker. Subsequently, Muslims
were commanded to prevent the government from violating Shari’ah. (Abou
Fadl p. 20) Under the classical discourse the ruler is the people’s
duly delegated agent who is charged with the obligation of implementing God’s
law (Abou Fadl p. 20) and has the authority to intervene in private affairs.
(Weiss p. 176) Assuming that the ruler carried out his obligations, he had
the right to demand absolute obedience from the community in all matters falling
under his authority. (Weiss p. 176)
This classical discourse
is also supported by hadith and the Qur’an. For example, following
the establishment of the first Muslim community, the Prophet Muhammad
established the Constitution of Medina, which essentially created a contract
between the ruler, the ruled, and God. (Abou Fadl p. 25-26) By this
contract, the Prophet ruled by the consent of its citizens and in consultation
(shura) with them. Shura, thus, served as the basis of
Prophet Muhammad legitimacy. The notion of shura is also found in
the Qur’an, which requires the ruler to conduct “their affairs by mutual
consultation” (Qur’an 42:38) and “consult [the people] in affairs [of the
moment].” (Qur’an 3:159) As such, the ruler loses his authority once he
fails in upholding the divine law or by not consulting with the ruled.
Therefore, both the Qur’an and hadith envision that the ruler is not
divine himself, but rather subject and limited to divinity as well as popular
will.
Moreover, an Islamic state
must value the importance of individual rights. Because there is no single
authoritative body which determines the source of rights under Islamic law,
human diversity and differences are considered as a necessary means of
fulfilling justice. (Abou Fadl p. 41) Similarly the Qur’an entitles people
to use their reason, rationale, and intuitions to define the text. (Abou Fadl p.
60) The Qur’an itself makes each individual a vicegerent of God.
(Qur’an 2:30) As such, where a government restricts people’s right to
reason or can never be subject to change or removed, it cannot be “Islamic.” It
is precisely for that reason that popular approval was initially required in
Iran. Following the 1979 Revolution a national referendum was required to
legitimate the Islamic Republic, the Assembly of Experts was elected by the
people, and the members could not approve a principle which would put into
question the sovereignty of the people.
Despite the emphasis on
shura, diversity, and individual rights in Islam, the Iranian government
is structured so that the there is no effective review of its actions.
Rather, the Iranian Constitution creates a vertical relationship between the
ruler and the ruled whereby it is the ruler which determines Islamic law and
assures that the ruled are controlled by them. As such, the government,
particularly the velayat-e faqih, can act arbitrarily without
consultation, without accountability, and can force its own Islamic
interpretations against the polity in violation of the Islamic tenet that “there
is no compulsion in religion.” (Qur’an 2:256) This can primarily be
attributed to Iran’s cyclical power structure which avoids popular
accountability--a hallmark of the classical Islamic discourse as noted
above. The Guardian Council has the authority to vet candidates for the
Presidency, Majles-e Showra-ye Melli, and the Assembly of Experts
pursuant to Article 99 of the Iranian Constitution. The members of
the Guardian Council are themselves directly and indirectly selected by the
velayat-e faqih and the velayat-e faqih is chosen by the Assembly
of Experts. Subsequently, the velayat-e faqih can enforce the
status quo by selecting a Guardian Council of likeminded individuals,
whom in turn assure that only persons in favor of the dominant Islamic
philosophy can run for office as President, parliamentarian, or member of the
Assembly of Experts. Thus, there is no process by which the popular will
could ever remove the ruler for violating tenets of Islamic law.
An “Islamic” state may
never potentially exist since the participation of humans will always “taint”
the divine will of God. The establishment of political institutions which
consolidate power into the hands of the unaccountable few, on the basis of
Islam, is, therefore, less an actual expression of Shari’ah, than its
manipulation for political consolidation.
About the author: Nema
Milaninia is chapter vice-president of the Iranian-American Bar Association
and executive director of the International Studies Journal.
Sources cited:
Asghar Schirazi, The Constitution of Iran: Politics and the State in the
Islamic Republic (1998)
Bernard Weiss, Private
and Public Dimensions of the Law, in The Spirit of Islamic Law
(1998)
Khaled Abou El Fadl, Islam and the Challenge of Democratic
Commitment, 27 Fordham Int’l L. J.
4 (2003)
Wael Hallaq, Muslim Rage and Islamic Law, 54 Hastings L. J. 1705
(2003)
Ziba
Mir-Hosseini, The Construction of Gender in Islamic Legal Thought and Strategies
for Reform (2003
... Payvand News - 5/7/07 ...
... Payvand News - 5/7/07 ... --
