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.
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
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