Trends in the Shī'ī Response to Constitutionalist Ideology in Iran

Trends in the Shī'ī Response to Constitutionalist Ideology in IranAuthor(s): Vanessa MartinSource: Journal of the Royal Asiatic Society, Third Series, Vol. 2, No. 3 (Nov., 1992), pp. 347-361Published by: Cambridge University Press on behalf of the Royal Asiatic Society of Great Britainand IrelandStable URL: http://www.jstor.org/stable/25182571 .

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Trends in the Shi'i Response to Constitutionalist

Ideology in Iran

VANESSA MARTIN

Since the Sh?'? response to constitutionalist notions of government is potentially a very

large subject, for the purposes of this discussion Sh?'? will be taken to mean the members

of the orthodox 'ulam?, those most committed to the sharVa and learned in its precepts.

Whilst even within this group there is a wide diversity of opinion, it is hoped that, by

looking at works written over a longer period, the discussion will show that the response

by a particular 'alim to constitutionalism is to some extent influenced by the political

conditions prevailing at the time of writing. These form a factor together with the

restrictions imposed by the sharVa in shaping the views of particular writers. The ideology

under consideration is constitutionalism, but it will be observed that for a large part the

subject matter treated consists of ideas such as representation, consultation, legislation,

freedom and equality, which are allied to the constitutionalist theory of government,

rather than the complete theory itself. This is mainly because so far only one major work

on constitutionalism as such, the Tanbth al-umma wa tanz?h al-milla written in 1909 by M?rz?

Muhammad Husain N?'?n?,1 has come to light, so the views examined have largely been drawn

from works on other subjects. If the definition of constitutionalism may, for the purposes

here, be taken to be the practice of establishing and working political systems that embody

provisions reflecting the philosophy of limited government, including charters of political and economic liberties, together with structural features designed to protect the rights of

the individual against the state,2 there has, as far as is yet known, been little consideration

among the Sh?'? 'ulam? of constitutionalism in these terms. Implicit in the treatment of

constitutionalist ideas by the majority is a not always clear conception of what a

constitution is, or what function it may perform in the politics of a particular society.

N?'?n? made some effort to come to terms with the nature and purpose of constitutionalism

in his task of legitimising it in shar?'a terms, not because of its inherent value but because

it presented a better alternative than tyranny.3 As will be mentioned below, his treatment

of constitutionalism is coloured by his world view as an orthodox mujtahid, and retains an

appropriately authoritarian quality.

Although it is clear that Western notions of political thought were the subject of

discussion and debate among the Twelver Shi'ite 'ulam? from at least the turn of the

1 For a full discussion on this book, see A. H. Hain, ShVism and Constitutionalism in Iran (Leiden, 1977). 2 G. Marshall, "Constitutionalism", in D. Mills (ed.), The Blackwell Encyclopaedia of Political Thought (Oxford,

1987). 3

Hain, ShV?sm, p. 194.

JRAS, Series 3, 2, 3 (1992), pp. 347~36i



348 Vanessa Martin

century, the first mujtahid to address the subject openly at any length was Sayyid Muhammad Tab?tab?'? in two letters and a

speech during the events leading up to the

Iranian Constitutional Revolution of 1906 when he endeavoured to persuade the Shah to

adopt, if not full constitutional government, then at least a form of government based on

a European model which would be both more just and more efficient than the traditional

system in Iran.4 Tab?tab?'? expressed himself in much the same way as many laymen, who

were, like him, influenced by the reform movement that was underway in Iran during the

nineteenth century. He was sufficiently pragmatic to realise that it was not possible to

introduce full constitutional government in Iran during that period, and adopted a

gradualist approach, which aimed, not at an elected assembly with full powers, but what

he called a majlis-i 'ad?lat, a council of justice. This rather vaguely defined body would

appear to have been the means of allowing some form of check on the executive to render

it accountable, and also to permit a

degree of popular participation in government. In the

council all were to be equal according to the law, but it was not entirely clear what law

Tab?tab?'? meant. He further defined his goal as being equality according to the sharVa,

but at that time it was unwise for reasons both religious and secular to refer to any other

law except the sharVa. It is unlikely that he literally meant the divine law, but rather a code

of laws to be drawn up from the sharVa, or at least not contrary to it, which would regulate

affairs under the government sphere of authority, and coming under the 'urf

administration. Tab?tab?'? also took up the question of saltanat, by which he appears to

have meant sovereignty. He propounded a theory by which the ruler was appointed by

the wisest of the community, and if he failed in his duties, his subjects might withdraw

their allegiance and replace him with someone else, a view notable because of its

perception of the ruler's authority being bestowed by popular consent, that is from

below.5 On the subject of nationality, Tab?tab?'? stated that what was to the advantage

of the country affects all its citizens, but he identified Iran as being the home of Sh?'? Islam,

and conceived of service and struggle for Islam and the homeland as being one and the

same. In this he may be contrasted with contemporary secular reformers, who were

concerned with Iran alone. Tab?tab?'?'s ideas were never fully formulated, and it should

be stressed that he had never experienced living in a European state and did not really

understand some of the full implications of his theories.

The anti-constitutionalist cause in the Revolution was set forth by Shaikh Fadlall?h N?r?

(d. 1909) in a series of leaflets published in 1907-9,6 a work entitled Tadhkirat al-gh?fil wa

irsh?d al-j?hil published 1306/1908-9,7 and an undated fatw? written sometime in 1908/9.8

4 M?rz? Muhammad Nazim al-Isl?m Kirm?n?, Tar?kh-i b?d?ri-yi Iranian (Tehran, 1978?9), pp. 390-1, 403-5,

444-53. For a fuller account of Tab?tab?Ts views, see also V.A.Martin, Islam and Modernism: the Iranian

Revolution of 1906 (London, 1989), pp. 65-85. 5

The origin of this idea is not entirely certain. Tab?tab?'T, like many Iranian reformers, was influenced by ideas emanating from the Ottoman Empire and Egypt. The Ottoman thinker, Namek Kemal, also emphasised

government according to the sharVa, meaning a law that should both protect and govern members of a society. He likewise conceived of a contract between the ruler and the ruled which could be revoked. See S. Mardin, The

Young Ottomans (Princeton, 1962), pp. 209-308. 6 For the text see M. Turkam?n, Shaikh-i Shah?d Fadlall?h N?ri (Tehran, 1362/1983), i, pp. 231-368. 7 Text in Turkam?n, Shaikh, i, pp. 56?75. A fuller account of Shaikh Fadlall?h's views is given in Martin,

Islam, pp. 113-38 and 165-200. 8 Published by M. Malikz?da in his Tarikh-i inqil?b-i mashr?tiyyat-i Iran (Tehran, 1328/1949-50), iv,

pp. 211-21.



Sh?'? Response to Constitutionalist Ideology 349

Having joined the reform movement in July 1906 to avoid being isolated, he tried to

contain constitutionalism by drafting an article in 1907 to be added to the constitution.

This article stated that at all times there should be a council of leading members of the

'ulam? who would ensure that all laws passed by the assembly must be in conformity with

the sharVa. He did not specify how the council would be chosen, and under the influence

of radical modernisers the article was incorporated into the constitution with the proviso

that its members would be selected by the assembly itself. At that time, they would

naturally choose 'ulam? favourable to modernising reforms. Fadlall?h therefore regarded

his article as null and void and did not support it further. The idea of the council

nevertheless gained popularity among the 'ulam?.

Following this debacle Fadlall?h emerged openly against constitutionalism, demanding that there should be an Islamic assembly (majlis-i isl?mt), with an Islamic constitution

(niz?mn?ma-yi isl?mt). It was unwise, indeed useless, to oppose the notion of assembly in

1907, but in 1908, after the Shah destroyed the Majlis, Fadlall?h came out with what was

undoubtedly his real position, that he wanted no assembly at all. Firstly he attacked the

right of the assembly to pass legislation, which he declared to be an innovation and

contrary to Islam. Legislation interfered with the work of the sharVa and meant the

introduction into Iran of the law of European parliaments, without taking into account

that the people of Iran already had the sharVa. Shaikh Fadlall?h's position on the exact

scope of the sharVa was, like Tab?tab?'?'s before him, and many 'ulam? after him,

ambiguous. At one point he stated that, "All matters, including the political or

administrative (siy?sat) fall within the scope of the sharVa" ? At another time he admitted

that "in practice there have always been government affairs and regulations to cover them,

and these stipulations are outside the religion".10 He tended to adopt the more

fundamentalist position in response to the most sustained and radical attacks of the

constitutionalists.

Shaikh Fadlall?h also attacked the parliamentary source of authority, namely

representation of the will of the people. The term used for representative is wak?l and his

function is wikalat, but Shaikh Fadlall?h did not accept this secular use of these words. He

then said it was not necessary to use a practice relating to religious affairs in 'urf or

customary matters. He accused the constitutionalists o? meaning not wik?lat, but

deputyship, wil?yat. In this case, he affirmed, they were usurping the position of the 'ulam?,

for in the absence of the Imam deputyship devolved on the fuqah? and the mujtahids, and not on anyone else. In other words the representation of the majority is not a basis for

authority in Im?m? Shi'ite law. Having disposed of the constitutionalist source of

authority, Shaikh Fadlall?h then pointed to the rightful chain of authority, the Divine Will

made manifest in the holy texts, the prophets, the imams, and those who derive their

authority from them, the 'ulam?. The actual government that Shaikh Fadlall?h supported was the traditional absolutist system. Drawing upon an idea current in nineteenth-century

Iran, he claimed that Islam must be sustained by a

partnership between religion and state,

which controlled the populace by threats and force. Of such notions as equality and

freedom of the press, Fadlall?h made short work. He said freedom of the press permitted

9 Turkam?n, Shaikh, i, p. 57.

10 Malikz?da, Mashr?tiyyat, iv, p. 214.



350 Vanessa Martin

infidels and heretics to propagate their cause. Equality before the law was

absolutely

contrary to the sharVa, which confers special rights upon Muslims.

An attempt was made to refute Shaikh Fadlall?h's ideas by N?'?n? in the Tanbih, which

has been discussed in detail by A. H. Hairi in his work ShV?sm and Constitutionalism, so only a few salient points will be mentioned here. The first is that N?'?n?'s attitude to

constitutionalism is negative in a way which that of a secular theorist would not be. That

is to say that to N?'?n? the ideal government was that of the Imam, and in his absence,

N?'?n? could only conceive of two alternatives, absolutism and constitutionalism, of which

the second was much preferable, but nevertheless, not the ideal. N?'?n? does argue for a

written constitution which sets out the responsibilities of those in charge and clarifies their

being subject to the supervision of other authorities.11 He also upholds the concept that

every individual shares in the public interest, because all are equal in public matters, so

there is no state of subjugation.12 Government is accountable and the ruler's authority

limited to supervision. On the other hand N?'?n? compares the ruler to the administrator

of a religious endowment or to the shepherd in charge of a flock. Having allowed for the

composition of a constitution which establishes rights and duties and the extent of the

ruler's power, he sanctions it like other Muslim thinkers, only if checked by religion,

which, as Hairi points out, is the opposite of what the French Revolution aimed at.13

N?'?n? had to tackle the doubts Shaikh Fadlall?h had cast upon the legitimacy of a

constitutional assembly. Firstly, there was the contention that only the 'ulam?, as deputies

of the Imam could have authority over the affairs of the Muslim community. N?'?n? stated

that the mujtahid could not perform all necessary functions himself, and therefore

responsibility for them devolved on the just faithful.14 They were best represented by a

constitutional assembly. Any aberration in the legislation of this assembly could be

rectified by the council of mujtahids under Article II of the constitution. N?'?n? did not say how the council was to be chosen, indeed, he did not seem to perceive that there was a

problem. N?'?n? also argued that wikalat does not have to be religious representation to be

rightful, thus refuting Shaikh Fadlall?h on this, a specious point in his argument. On the

subject of the will of the people, N?'?n? contended that the payment of taxes by the people in the public interest gave them a

right to a voice -

though in fact this is not a principle

recognised by the sharVa. N?'?n? sought to give greater authority to the notion of

consultation, implying the superiority of the majority of the wise men over the minority.

The most contentious point, however, was the problem of legislation. Shaikh Fadlall?h

had indicated that Islam and constitutionalism were based on different and mutually

incompatible sources of authority, and that parliamentary legislation was bound to

interfere with the sharVa. N?'?n? adopted a

position that, where the sharVa specified

provisions covering existing judicial and political problems, there is no need for

legislation.15 But a number of problems had arisen which were not predicted by the sharVa,

and in these matters it was the duty of the authorised ruler to make appropriate laws, and

the authorised ruler in N?'?n?'s view, should be an elected assembly. N?'?n?, however, did

11 Hairi, ShV?sm, p. 198.

12 Ibid., p. 190.

13 Ibid., p. 195.

14 Ibid., pp. 205-7.

15 Ibid., p. 210. This argument had also been employed by Tab?tab?'? and his followers during the Revolution.

A discussion on the attempts of this period to distinguish between affairs to be covered by the sharVa and those

coming under secular law is given in H. Enayat, Modern Islamic Political Thought (London, 1982), pp. 169?72.




not make clear where the authority of the sharVa ended and that of the assembly began.

On the subject of equality, N?'?n?, who ostensibly supported it, reveals himself as in reality confused. He took the view that all should be summoned equally to court for an offence,

but should be tried respectively according to the precepts which govern Muslims and non

Muslims. In this he was clearly envisaging a society such as the system of communities,

millets, of the Ottoman Empire in which he lived, not a nation state with one law for all.16

The period of the constitutional assembly in Iran, lasting from 1906 to 1911, produced

paralysis in government combined with attacks by militant secularists upon the 'ulam? and

the sharVa. These factors led to disillusionment on the part of many 'ulam? with

constitutionalist government. Nevertheless, constitutionalism had challenged the tra

ditional consensus of religion and state, and the problems it raised demanded new

solutions. From 1919, as a result of the British Mandatory policy in Iraq, many 'ulam?

migrated to Qum, and in 1923 N?'?n? himself came, but he had by now relinquished his

belief in constitutionalism, and he became, at least tacitly, a supporter of the dictatorial rule

of Rida Shah.17 The years 1925-39, however, saw a major reform programme which

included a steady erosion of the rights and interests of the religious body. There was,

nevertheless, relatively little protest by the 'ulam?, and no major tracts on the subject of

religion and state date from this period. Of course, the 'ulam? were confronted by a strong,

increasingly centralised regime of dictatorial powers. Ideologically, however, they were in

disarray. The Constitutional Revolution had shown the disadvantages of western ideology in Iran, and Rida Shah was demonstrating the disadvantages of centralised monarchy. No

alternative ideology or system of government as yet presented itself.

It was not until 1943, after the fall of Rida Shah, that there appeared the first notable

work for some time by a member of the 'ulam? on relations between religion and state,

Kashf al-asr?r, The Revealing of Secrets, by Ayatullah Ruhull?h Khumain?. According to

the author, its purpose was to repudiate attacks upon the 'ulam? by writers in the press

during the Rida Shah period, but in fact it was largely a refutation of one work Asr?r-i

hiz?r s?la by 'Al? Akb?r Hakam?z?da, published 1943 and much influenced by Western

rationalist ideas.18 Here, it is primarily the way in which Khumain? treats Western

constitutionalist ideas that will be considered. Firstly, he is entirely negative towards any

form of government that is not either based on or in accordance with the sharVa. Although

he sees the actual conduct of government as a matter for the laity, he is adamant that all

sovereignty except the sovereignty of God is contrary to the sharVa.19 In order to ensure

that the government rules in accordance with the sharVa, it should ideally be under the

supervision of the fuqah?.20 Khumain? emphasises, however, that by this he does not mean

that they should be shah or ministers. Rather, just as, under constitutionalism, an elected

assembly selects a government and chooses someone to be sovereign (sultan), a majlis of

mujtahids well-versed in the holy laws, wise and free of self-interest should elect as a just

sovereign (sult?n-i '?dil) someone who will not violate the laws of God nor act oppressively.

16 Hairi, ShV?sm, pp. 223-4, 234.

17 S. Akhavi, Religion and Politics in Contemporary Iran (New York, 1980), pp. 29-30.

18 Y. Richard, "Shar?'at Sangalaj?: a reformist theologian of the Rida Shah period", in Authority and Political

Culture in ShV?sm ed. S. A. Arjomand, (New York, 1988), p. 160. 19 R. Khumaim, Kashf al-asr?r (Tehran, n.d.), p. 186. 20

Ibid., pp. 185-6, 233.



352 Vanessa Martin

With such a government, there would be no chance of disorder or of the country

disintegrating. Existing governments are oppressive and do not do their duty because they

are not based on justice

- a predicament which arises because they are not based on the law

of God and are not under the supervision of the fuqah?. Khumain? thus proposes not rule

by the 'ulam? but by someone answerable to them in the form of an assembly and an

elected ruler; but there is no place for representation and no discussion of how the

assembly is chosen. Khumain?'s vision in Kashf al-asr?r of government under the

supervision of the fuqah? and to some extent with their participation may be contrasted

with the more negative role of guarding against encroachments of the sharVa assigned to

them by Article II of the Supplementary Fundamental Law. It may also be contrasted with

his later theory of the 'ulam? actually running the government.

At the time of writing Kashf al-asr?r, however, government under the supervision of the

fuqah? was still evidently something of an ideal. In the meantime Khumaim falls back on

grudging accommodation with existing governments, all viewed as essentially unjust. In

practical terms he is bound to consider the two by now usual alternatives of constitutional

and monarchal government. He comes out quite strongly against constitutional

government saying that parliament, legislation and elections are all contrary to the sharVa,

and for this reason Iran cannot have constitutional government.21 This opposition is based

mainly on antagonism to Westernisation and particularly Western laws. There is, in his

view, only one law, the law of God, and the existing legislation of the Iranian assembly

should be changed into the law of God, and all vestiges of the law of Europe eradicated.22

The customary law of the country must be the divine law, not the law of Europe, and a

law that is contrary to Islam cannot be passed merely because it has been declared in

accordance with reason or the Fundamental Law.23 It would seem that at this point

Khumaim followed the argument of Shaikh Fadlall?h that elections and legislation are

illegal according to the sharVa and so, therefore, is a constitutional assembly. But whilst

Shaikh Fadlall?h conceded at times that there was a need for 'urf, or customary law,

Khumaim makes no such allowances. In his view the law of Islam omits nothing that is

necessary for setting up an administration, it is for all men at all times, and it is the greatest

protection against foreigners, their laws and their customs.24 Khumain?'s rejection of all

things Western, especially Western law, means that by implication he, like Shaikh

Fadlall?h, prefers traditional monarchal or absolutist government in the name of the sharVa

to constitutional government. In Kashf al-asr?r he indeed explicitly states that in the past

even the most authoritative members of the 'ulam? have not opposed the existing

government, and many of them have cooperated with the government in the

administration of the country when they have seen it as furthering the interests and well

being of the Shf? community.25 The period of the Musaddiq government of the early fifties saw a revived interest in

constitutionalism amongst the 'ulam?, particularly on the part of Ayatullah Mahmud

T?liq?n? (d. 1979), who wrote an introduction to a new edition of N?'?n?'s Tanbth.26

21 Ibid., pp. 182, 222. 22

Ibid., p. 189. 23

Ibid., pp. 180-1, 184. 24

Ibid., p. 292. 25

#i?, pp. 186-7, 228. 26

S. M. Taliqan?, Introduction to Natn?'s Tanb?h al-umma wa tanz?h al-milla (Tehran, 1352/1973 edition), p. 8.



ShVt Response to Constitutionalist Ideology 353

T?liq?n? begins by stressing that the roots of a good society are knowledge of God and

unity (tauhfd), which produces freedom and equality and leads to the perfection of

mankind. Such perfection is further achieved by following the Qur'?n, the Prophet and

the Imams.27 The task is additionally in the hands of the just 'ulam? and the most just of

the faithful, who know the basic principles of the religion. Yet the people, too, have a role

to play in securing the religion against oppression, which establishes itself as a kind of false

god motivated by self-love.28 The elimination of the oppression of self love is the true and

ultimate goal of Islam. The problem is to find the best practical means of achieving it, and

T?liq?n? believes this to be constitutionalism, which thus acquires a new kind of ethical

purpose in the service of Islam. There is, however, according to T?liq?n?, a difficulty with

constitutionalism in Iran, in that it has left a memory of weakness and discord. This obliges

T?liq?n? to analyse the constitutionalist period to ascertain whether the discord was

inherent in the system of government, or merely a characteristic of a particular time.29 He

notes that in the beginning the movement against the regime of the time was united by

the broad goal of eliminating oppression and selfish rule. Participants, however, were

unsure of exactly what they wanted. Discord arose after the initial defeat of the despotism,

when discussions began on the law and the constitution, and the religious faction caused

disruption. Here T?liq?n? seems to imply that Shaikh Fadlall?h's arguments were a pretext

for political ends. In addition, T?liq?n? continues, there was little popular understanding of mashr?tiyyat, and people recently come from abroad used the newspapers to denigrate

the 'ulam?. Finally, the talk of freedom and equality antagonised many 'ulam? and

Muslims. But the essential weakness in constitutionalism was the initial lack of unity of

purpose. If this deficiency were overcome, it might be possible for constitutionalism to

succeed.

T?liq?n? then introduces N?'?n? as an '?lim of the highest eminence, whose work

constitutes a guidance for both 'ulam? and ordinary Muslims. It has already been pointed

out that N?'?n? considered constitutionalism the best form of government in default of the

ideal rule by the Imam. The same essentially negative element is evident in T?liq?n?'s view

of constitutionalism. He stresses that it is a means to an end, not an end in itself. He explains

that although N?'?n? wrote the Tanb?h in order to certify that constitutionalism was in

accordance with the sharVa, his real aim was to establish Islamic government.30 True

government belongs to God, the Prophet, the Imams, and after them the mujtahids,

notably, though, in cooperation with the body of Muslims. Constitutionalism, then, is

merely an instrument to an end, but one preferable to oppression, by which term T?liq?n?

presumably means absolutism. It is, he concludes rather uncertainly, still the best available

way to destroy tyranny and establish righteous government. T?liq?n? is generally regarded

as having been a mujtahid of liberal opinions, but the negativism already noted in his view

of constitutionalism shows also in his attitude to nationalism, which he describes as a

doctrine that permits exploitation of one class by another, and one country by another, and

also a doctrine that facilitated the spread of imperialism.31

27 Ibid., p. 8. 28

Ibid., p. io. 29 Ibid., pp. 10-14.

30 Ibid., p. 8.

31 S. M. T?liq?m, Society and Economics in Islam, trans. R. Campbell and H. Algar (Berkeley, 1982), pp. 86, 95.

It may be noted that despite the negativism in his writings, T?liq?m's practice up till the time of his death was



354 Vanessa Martin

Suspicion of nationalism is common to many of the 'ulam? including Sayyid Muhammad Tab?tab?'? and Khumain? in Kashf al-asr?r, and is based on the belief that the

system of nation states has divided the Islamic community introducing differentiations on,

for example, the basis of language and ethnic culture that are alien and irrelevant to Islam.

Nation states have also, of course, been founded on secular law. The case against

nationalism was particularly strongly argued by Ayatullah Murtada Mutahhar? (d. 1979) in

Khadam?t-i mutaq?bil-i Iran wa islam published 1970 where he declares that whereas Islam

unites Muslims, nationalism divides them.32 These divisions have especially been created

by governments and politicians, and by the interference of Europeans for their own

purposes. Islam, by contrast, has been for centuries a force of unity, and represents the

higher ideals of religion and knowledge.33 Islam or Islamic culture can provide

an identity

just as effectively as nationality. Whilst nationalism may, up to a point, be beneficial or of

service to the people of a country, it also has a negative aspect in introducing prejudiced

and faulty judgement. There is a higher level than national sentiment, which is the level

of knowledge, philosophy and religion. Mutahhar? challenges the argument, much

favoured by the Pahlavi Shahs, that Islam was imposed on Iran by force, believing that

instead it developed through the support of the people. Although not interested in the

concept of Iran as a nation state, like many 'ulam? before him Mutahhar? sees Islam and

Iran as mutually dependent and inseparable.

Elsewhere Mutahhar? gives his interpretation of the concept of freedom. Speaking after

the establishment of the Islamic Republic, Mutahhar? explains that its foundations were

based both on Islam and democracy.34 Some, he says, believe that what is related to

freedom and the rights of the individual derives from the democratic not the Islamic basis,

but this is not correct. Freedom, individual rights, and democracy are inherent in Islam,

but freedom has different roots than in the West, where it is based on desires and

inclinations, limited only by the desires of others. It is expressed like the freedom of

animals. Democracy in Islam is also based on freedom, but not freedom that finds its

expression in desire. Rather it exists in the sense of binding the animal and releasing the

human. It is in fact based on that which makes man perfect and develops his talent as a

human being. It is not clear how Mutahhar? arrived at this doctrine that freedom in the

West is somehow a product of the carnal soul, whereas in Islam it is a manifestation of

some higher level of being. On the subject of freedom, Sayyid Muhammad Husain Tab?tab?'? is rather clearer on

what is possible within Islam as compared to the West. In Raw?bat-i ijtima? dar islam he

declares man in general to be subject to desires which can lead to loss of equality and the

abuse of some men by others.35 On the other hand, man is by nature social, and as a

member of society, his desires may conflict with those of other members. So man's nature

to share the responsibility for authority, indicating some faith in the popular will. See S. Akhavi, "Islam, politics and society in the thought of Ayatollah Komeini, Ayatollah Taliqani and 'AH Shariati", Middle Eastern Studies,

XXIV, no. 4 (1988), p. 415. 32 M. Mutahhar?, Khadam?t-i mutaq?bil-i Iran wa islam (Tehran, 1349/1970), pp. 6-7.

33 Ibid., p. 9.

34 M. Mutahhar?, P?r?m?n-i inqil?b-i isl?m? (Tehran, 1361/1982), pp. 78-82. 35

M. H. Tab?tab?T, Raw?bit-i ijtima? dar islam, trans, into Persian by J. H. Kirmani (Tehran, n.d.), pp. 65-0. I am grateful to Mrs Anne Enayat for lending me a copy of this work from the collected papers and books of

the late Professor Hamid Enayat.




has both desires and qualities that limit them. Thus far Tab?tab?'? is in accordance with

ideas going back to Aristotle. He then, however, differentiates between Western societies

and Islam. In the former, he points out, the nation is not necessarily bound in all matters

by religion, and a distinction is made between actions which fall within the scope of law,

and moral issues, which do not.36 In these moral issues the individual has some personal

choice. In Islam, by contrast, the law is based on the concept of unity in all things, and

covers all matters, including the moral and the ethical. It therefore legislates for all actions

of the individual and society, and there cannot be in Islam the same area of freedom that

there is in the West. On the other hand, in those matters which God has declared mub?h

(permissible), the individual has, within limits of decency, complete freedom.37

In a more detailed discussion of the law in Islam, Tab?tab?'? takes up the question of

whether a law devised for a way of life of centuries ago can be considered appropriate for

today.38 He answers by saying that though different ages vary superficially, man has

certain basic needs common to all times. Since the laws of Islam answer these needs, they

are not void merely because they came into being in another time and place. With regard

to non-basic needs, which seems to mean the area outside personal law, Tab?tab?'? takes

a similar stance to that of the pro-constitutionalist mujtahids in 1906-9. He declares that in

any legal system there are parts which relate to the events of the era, and to such matters

as defence, keeping order, administration, communication and so forth.39 These matters

are taken care of by the government, and laws relating to them are subject to change.

These laws are quite separate from the Divine Laws, derived from the Qur'?n and the

Sunna, though they must in no way contradict the latter. Such a distinction echoes that

of the constitutionalist period, which saw an attempted division between the affairs of the

sharVa and the 'wr/law. The problem remains, of course, as to where the dividing line falls.

On the whole, though, Tab?tab?'? attempts to find some practical solution to the problems

of legal jurisdiction, distinguishing between the needs and traditions of Islamic and

Western societies, without necessarily casting aspersions on the latter.

On the role of the 'ulam?, it is clear that Tab?tab?'? considers that they are the true

holders of authority, and government is essentially delegated by them. The exact nature

of the government is unclear, except that it is apparently under the supervision and with

the agreement of the 'ulam?, rather than by them and includes the principle of consultation

amongst Muslims, recalling the theory proposed by N?'?n?.

The relationship between religion and state had deteriorated in the 1960s as a result of

the Shah's foreign policy and his modernising programme known as the White

Revolution. An uprising in Tehran in 1963 led to the deportation of Khumain?, who went

ultimately to Iraq. From the 1960s there was a quest amongst many 'ulam? in Iran for a

political alternative to either constitutionalism or monarchy.40 Some turned their energies

into a re-examination of the political role of Shi'ism and a reconsideration of Sh?'? concepts

in a way that had important implications for the relationship between religion and state

- the movement termed Shi'ite modernism.41 In Iraq, Khumain?, by now the leader of the

36 Tab?tab?'?, Raw?bit, p. 66. 37

Ibid., p. 87. 38

Ibid., p. 75. 39

Ibid., p. 77. 40

For a survey of the different reform movements at this time, see Akhavi, Religion, Chapter 5. 41

Enayat, Political Thought, pp. 175?94 gives an analysis of Sh?'? modernism, especially the reformulation of

religious terms to endow them with revolutionary connotations.



356 Vanessa Martin

more radical 'ulam?, developed the theory of government known as wil?yat-i faqth, The

Government of the Jurist, which he began propounding in about 1970. In the course of this

work, Khumaim touches in various ways upon constitutionalist notions. Having declared

that there must be some form of practical government, he discusses the two previous

alternatives, monarchy and constitutionalism. The former he pronounces to be un-Islamic

and idolatrous.42 It is contrary to both law and reason to allow it to continue, since it

produces a political order that amounts to infidelity (kufr). At this point Khumaim

departs from the hitherto accepted Shi'ite view, and from his own earlier acceptance in

Kashf al-asr?r, of the need for accommodation. He states that it is a duty incumbent on all

Muslims to eradicate monarchy from Muslim society, in which it generates corruption,

and the 'ulam? especially are

enjoined not to adopt a quietist position, but to undertake

leadership of jih?d against oppression.43 On the subject of constitutional government,

Khumain?'s main criticism is that it is un-Islamic because it is of foreign origin.44 The

constitution of Iran was derived from the Belgian constitution, and to laws essentially

alien, some Islamic precepts were added to deceive the people into accepting them, he says.

These laws are designated not only

as contrary to Islam, but also part of a conspiracy by

the British to eliminate Russian influence from the country and to win sole influence

there.45 In his view of constitutionalism as an alien system of foreign origin, Khumaim

follows Shaikh Fadlall?h. The concept of the separation of religion and state is likewise

condemned as foreign in origin, part of imperialist propaganda to prevent the 'ulam? from

participating in politics and Muslim society. Khumain?'s own theory is that Iran should

have Islamic government, which is neither absolutist nor constitutional in the usual sense

of the word - that is based on the approval of laws in accordance with the will of the

majority.46 It is constitutional, however, in the sense that it is limited by a set of regulations

based on the Muslim sources of authority, the Qur'?n and the sharVa. Khumaim goes on

to say that there is a fundamental difference between Islamic government and other types

in that others permit legislation, whereas in Islam this right belongs only to God.

Therefore in Islamic government, a planning body replaces the legislative assembly which

is one of the three branches of government. This body draws up policies and regulations

for the executive in conformity with the precepts of Islam. Khumaim does not, however,

clarify how this council is chosen. It is only clear that he is not in favour of government

in which sovereignty is vested in the people; on the contrary it is vested in the

representatives of the Imams who form a bulwark against Western interpretations of

sovereignty.47

The law is unequivocably the sharVa. In fact Khumaim argues that as the sharVa has

already been accepted by Muslims, this facilitates the task of government. He contrasts the

42 R. Khumain?, Wil?yat-i faq?h, trans, by H. Algar in Islam and Revolution (Berkeley, 1981), pp. 47-8.

43 Khumain?, tr. Algar, pp. 50, 116. 44

Ibid., pp. 30-1. 45

Khumain?'s view in Wil?yat-i faq?h is consistent with his argument for Islamic law in Kashf al-asr?r.

However, in June 1963, after release from arrest following large demonstrations, in a speech attacking the

regime, Khumain? claimed for the 'ulam? the credit of bringing constitutionalism to Iran, thus guaranteeing freedom of expression, and urged that the constitution be put into practice. See M. M. J. Fischer, "Imam

Khumaini: four levels of understanding", in J. L. Esposito (ed.) Voices of Resurgent Islam (Oxford, 1983), p. 156. Khumain? could thus advocate constitutionalism if political expediency required, though the underlying trend

of his thought was against it. 46

Ibid., p. 55. 47

Akhavi, Islam, pp. 414, 420?1.




situation with that under constitutional government where the representatives of the

people impose their will on the majority,48 ignoring the notion that such representatives

are meant to carry out the wishes of the majority, and once again showing a negative

attitude to the idea of constitutional government. In Khumain?'s view the sharVa may be

discovered to include all the provisions necessary for establishing and administering a state

as well as creating a social system that answers all the needs of man.49 In addition, since

the law belongs to God it may not be questioned, which of course means that the legal

authorities, who are necessarily the fuqah?, may not be questioned. As in Kashf al-asr?r, he

again declares that there is no need for man-made laws, and especially not for borrowing

foreign laws, as those infatuated with the West have done.50 In this he is true to the more

fundamentalist arguments of Shaikh Fadlall?h, and his views may be contrasted with the

attempts of 'ulam? of the constitutionalist period to designate

an area of administrative

affairs not covered by the sharVa. Since Islamic government is government by Islamic law,

and since only the fuqah? have knowledge of Islamic law, and therefore justice, it is

preferable that they assume power rather than advise a surely defective government that

must constantly consult them. For this reason it is desirable that most, though not

necessarily all, officers of the government be fuqah?, as they alone have the correct

knowledge of their duties.

At one point in his discourse, Khumain? raises the question of the concept of the nation.

He views the nation state as an artificial entity imposed on Muslims by imperialists and

causing them to live in poverty and deprivation. There is a need to deliver Muslims from

oppression by overthrowing nationalist governments established by imperialists51 (which

was, of course, his view of the Pahlavi regime). To Khumain? Iran as a political entity exists

primarily as the home of Shi'ite Islam, and it is to the latter that Shi'ite loyalty is due.

It has been noted that Khumain? reproduces some of the arguments of Shaikh Fadlall?h

including the illegality of representation and legislation and the eternal validity of the

sharVa for all contingencies, as well as the attack on Western influence in ideology and

customs. Arjomand has drawn a line of development from Shaikh Fadlall?h to Khumain?, which he terms Islamic traditionalism, and defines as a movement for the defence of

Islam.52 It is indeed true that Shaikh Fadlall?h was the first mujtahid to perceive the

implications of Westernisation for Iran, and to formulate arguments against it. His position

was primarily defensive, but by the time of Khumain? the impact of the West had

produced a doctrine not only more rigidly fundamentalist, but also more positively in

favour of an Islamic state controlled by the 'ulam?. Ideologically it had moved from Article

II of the constitution providing for the 'ulam? to guard against the weakening of Islam, to

government by the 'ulam?. There was, however, one major difference between Shaikh

Fadlall?h and Khumain?. Fadlall?h, as we noted, believed in government in the service of

Islam, but authoritative government based on might and imposed from above, whereas

Khumain?, whilst saying little in theory on the involvement of the laity, found a power base among the 'ulam?'s following and such consensus as they could provide, that is he

48 Khumain?, tr. Algar, p. 56.

49 Ibid., pp. 43-4.

50 Ibid., p. 137.

51 Ibid., p. 49.

52 S. A. Arjomand, "Traditionalism in twentieth century Iran", in From Nationalism to Revolutionary Islam, ed.

Arjomand (New York, 1984), pp. 197-208.



358 Vanessa Martin

found it from below in what has been described as paternalistic egalitarianism.53 Shaikh

Fadlall?h had a strong tendancy to eschew what might lead to anarchy and the breakdown

of the state, whilst Khumaim was prepared to take on the risk of that.

One of the most comprehensive discussions of legislation in an Islamic state is given by Muhammad B?qir Sadr (d. 1980), a leading mujtahid of the 'Atab?t, in his work Jumh?r?

yi isl?m?, published i399q./i979-8o. He declares the basis of legislation in the Islamic

republic to be the precepts of Islam, and says all legislative programmes are to be enacted

on the basis of the sharVa within certain guidelines.54 Firstly, a precept which is clearly and

indisputably based on Islamic law will be counted as an inalienable part of the fundamental

law, providing always that it is relevant to the life of society. In the case of a precept on

which the mujtahids give differing opinions, that opinion may be chosen which is most in

accordance with the well-being of the community. It is not clear, however, who makes

this choice, or how the well-being of the community is to be identified. In matters which are not included in the categories obligatory and forbidden, whatever laws considered to

be in the common good may be passed, providing that they are not contrary to Islam. This

category is presumably that of permissible affairs (um?r-i mub?h) used by other writers

among the 'ulam?. Laws may also be passed in that area which the sharVa has left to the

discretion of the people themselves and in which there can thus be freedom of action,

providing always that nothing is done contrary to the precepts of Islam. This idea is not

new, and is here again stated with the old problem that no attempt is made clearly to

distinguish between what the sharVa covers and what it does not, and who has the final

decision when there is no consensus on these points. On the subject of who composes the

legislative and executive, Sadr says they are made up of the people themselves.55 As always

in the writings of the 'ulam? the term "people" is problematic, as it tends to mean the

Islamic community as led by the 'ulam?, rather than the people as individuals in their own

right. According to Sadr "the people" furthermore assume their duties because the rightly

guided succession (khilafat) has devolved upon them. This would appear to be a novel and

radical theory, unless, of course, by "the people" is meant the 'ulam?. In this case the

argument would appear to be in line with Khumain?'s exhortation to the 'ulam? to assume

the executive as well as the judicial functions of the Imam. Sadr further qualifies his

argument by saying that sovereignty remains with God, who is the real ruler.

Turning to the question of how "the people" will carry out their legislative and

executive responsibilities, Sadr says that firstly they must elect a head of government under

the title of President or Prime Minister, and that he will then choose the members of his

government. The people will then elect an assembly of reasonable persons who will pass

and execute laws. From this scheme the concept of parties is notably absent. The questions

of whether "the people" will have any sort of choice, and whether there will be any

restricting qualifications on who will stand for president, become clearer when Sadr raises

the subject of the pious leader (marja').56 This person or persons may be considered the

representative of the sharVa, and in accordance with it, the n?'lb-i '?mm-i im?m (the General

53 Akhavi, Islam, p. 423.

54 S. M. B?qir Sadr, Jumh?ri-yi islam?, Persian trans. (Tehran, 1399q./1979-80), p. 16.1 am grateful for the loan

of this book from the collection of Professor Hamid Enayat. 55

Ibid., p. 17. 56

Ibid., p. 18.




Deputy of the Imam). The marja' is in fact the real ruler and the government derives its

authority from him. On the subject of the marja"s duties B?qir Sadr in effect summarises

the role taken by Khumain? in the Islamic Republic in Iran. He clarifies this point by saying that Khumain? has assumed his present position because he has been the leader for twenty

years, and has brought victory to the people. He states, however, that the real marja' is

society, and that leadership rests with the community of Islam57 (which almost certainly

means the community as led by the 'ulam?). The point is interesting because it would

seem to indicate that Khumain? had become the sole marja' because he was an exceptional

individual, and follwing his departure the marja' would once again be a collective

leadership.

The establishment of an Islamic government in Iran, with the preponderant role it gives

to the fuqah?, has led to an increased emphasis on the role of knowledge in the argument

against Western political ideas. According to Ayatullah Muntazir? in his Maban?-yi fiqh?

yi huk?mat-i islam?published 1367/1988-9, Islamic government excludes the possibility of

democracy because it requires government by the most knowledgeable, just and pious

people. During the ghaibat these are inevitably the fuqah?, who are claimed to be the most

aware of the issues and problems of their time.58 Anyone else, being deficient in the

requisite qualities, may not be raised to the position of Imam or leader. A second point of

conflict between Islamic government and democracy is that in all matters judgement and

execution of the law must be in accordance with the sharVa.59 Like Khumain?, Muntazir?

maintains that in Islam true government is the government of God, and the imam o? the

community (jamVat) executes His commands to the people. But in democratic government

the purpose of most electors is to secure their own interests, and neither electors, nor

elected are concerned about religious affairs (and, by implication, responsive to the sharVa).

Further arguments adduced against Western style democracy, and for government under

the 'ulam?, are that it is a duty incumbent on the 'ulam? to

participate in politics to ensure

that society does not fall under tyranny, and that the sharVa be enforced.60 Secondly

Western style government is claimed to have had a baneful effect in permitting freedom of action to oppressive regimes, and thirdly, it has allowed bad 'ulam? to flourish and sell

their religion for worldly gains.61

In the post-revolutionary period the 'ulam? have faced a problem in that, whilst

Khumain? had established a theory of government by the jurist which derived its

legitimacy from the sharVa precepts and was arguably sufficient in sharVa terms,

government by the jurist, based solely on such justification, is vulnerable to the criticism

of narrowness and exclusivity in an era of greater popular participation in politics. The

'ulam? have therefore had to cast about for the means both of drawing other elements of

the populace into government, and of giving validation to such a measure. The solution

to the problem has been found in the concept of consultation in an assembly. Muntazir?

is at pains to justify consultation, propounding the view that government by the faqih does not mean that he alone conducts affairs, but that he is at their centre as a point of

57 Ibid., p. 19.

58 H. A. Muntazir?, Maban?-yi fiqh?-yi huk?mat-i islam? (Tehran, 1367/1988-9), p. 91. 59

Ibid., p. 92.

' 60

Ibid., p. 94- 61

Ibid., p. 95



3 6o Vanessa Martin

reference.62 Responsibility passes to able and suitable subjects, who are both consulted and

supervised by the fuqah?. Necessity for consultation arises from the fact that the matters

in hand do not concern one individual but the general body of Muslims, whose views are

required. Since the concept of consultation is not part of the intrinsic structure oiwil?yat

i faqth, and since its inclusion without validation might by implication undermine that

theory, justification for it is provided from within the Islamic sources themselves,

particularly by quotations from the had?th verifying that the Prophet enjoined consultation

as a means of regulating the affairs of the community.63

The justification of consultation in Islamic terms is argued even more forcibly by Ab?'l

Fadl Shuk?riin his Fiqh-i siyas?-yi islam! published 1361/1982-3 by the Hauza-yi 'ilmiyya in Qum. He begins by defining the function of consultation as requiring the opinion of

other?, permitting their participation in a matter and abstaining from despotism.64 Since

the experience of individuals, and of the individual and society, are different, their seeking

assistance in difficulties concerning human kind is necessary. It will be noted that Shukur?'s

presentation differs from the Western notion of discussion among equals to establish, justify

or criticise a preferred policy. By implication any decision arrived at is collectively agreed

on as the best without any suggestion that it may be only a majority, not all, who agree.

Shuk?r? goes on to elucidate how the religion of Islam, "since it does not deny rational

judgements and recognizes individual intellects as correct" also acknowledges the need for

consultation.65 Like Muntazir?, he brings examples from the Muslim sources to show that

Muslims are prohibited from despotic opinion and enjoined to seek consultation. He then

asserts that consultation as a procedure of government is not without conditions. Firstly

participants in consultation must have certain qualities and be lacking in others. The

qualities they possess must include being a Muslim, being sound of mind, whether a man

or a woman, being patient, righteous, not immoderate, pious, wise and experienced.66

Undesirable qualities are cowardice, envy, avarice, autocratic ways, inconstancy,

ignorance and obstinacy. Finally, Shuk?r? affirms that the Prophet practised consultation.

Implying that this was not in fact necessary in view of the prophet's own knowledge and

wisdom, he presents consultation as a policy of expediency on the part of the Prophet to

reassure the people that he placed value on their judgement.67 Shukur?'s enumeration of

the reasons for the Prophet's use of consultation includes to educate the people in

developing their opinions, and to draw out dissidents, who become known through

discussion, so the reliable may be separated from the unreliable ; to ensure the cooperation

of all in solving the country's problems ; to obtain the confirmation of the people in an

agreed goal, so that they will more willingly struggle towards its attainment ; to teach the

people to take their leaders as a model and progress by following their example; and to

show the people that there is no fault or disgrace in asking the opinion of others so they

become not arrogant or reliant on their own views. On the whole, Shukur?'s vision of

consultation may be seen to derive its justification from Islamic rather than European

thought.

62 Ibid., p. 93.

63 Ibid., p. 94.

64 A. Shuk?r?, Fiqh-i siyas?-yi islam? (Qum, 1361/1982-3), p. 277.

65 Ibid., pp. 277-8.

66 Ibid., pp. 279ff.

67 Ibid., pp. 290fr.




What then, it may finally be asked, is the sum of the 'ulam?'s treatment of

constitutionalist notions of government ? There is a certain selectivity in the way Western

ideas have been handled. The concept of a constitution limiting in particular secular power

is taken up and developed but the ideas of rights and liberties, especially of the individual,

receive little or no attention. On the subject of nationalism and the nation state, they are

agreed that loyalty to Islam must come first. This is because of the conflict of the

theoretical equality of all citizens according to the law in a nation state and the special

privileges accorded to Muslims by the sharVa. By contrast it will be noted that Shi'ite Islam

is identified with Iran and none argues for a greater Sh?'a polity. On the subject of the

division of religion and state, which would curtail the authority of the 'ulam?, the division

is either firmly rejected, or obliquely permitted on the understanding that the 'ulam?

would retain some authority over what falls within the purlieu of the state. On other

points there is always a wide spectrum of opinion. On the related subjects of the spheres

of authority in law and legislation, we may see in the earlier part of the period two views,

one that the sharVa covers all affairs, and the other that there is in practice an area for

legislation in the state administration in what is permissible. Over the time that has

followed, there has, especially on this significant point, been little in the way of novelty of

ideas, apart from the concept of government by the fuqah?. The spectrum of opinion on

the topic of laws and legislation remains from the argument that the only law is the sharVa

and there will be no legislation, to the view that room for legislation may be found in areas

not covered by the sharVa, in permissible affairs, and in the sphere of matters always

handled by the government administration -

which are to some extent the same. This

unchanging spectrum indicates a lack of room for manoeuvre. The pro-constitutionalist

'ulam? in particular, when arguing for legislation in administrative affairs, are always

vulnerable to attack from the fundamentalists holding the essentially consistent though

practically inapplicable view that the sharVa covers everything. In Khumain?'s writings we

see the extreme fundamentalist position that there can be no legislation in the sharVa. As

however, the possibility emerged of an assembly legislating under the authority of the

'ulam?, or of government by a jurist, even a fundamentalist writer such as Sadr warmed

to the idea of an assembly and legislation. There is, however, no concept of the sovereignty

of the people, the assembly being the house of consultation of the Islamic community. Of

all constitutionalist notions the idea of an assembly has been the most enduring. In the early

days of constitutionalism, 1905-9, the endorsement of the 'ulam? was still needed to

legitimise the assembly at a time when sovereignty of the people and the popular will were

little understood. Conversely, in the contemporary period, government by the jurist -

as

opposed to judicial responsibility -

is not sufficiently widely recognised, even among the

'ulam? themselves, to provide adequate legitimacy. In the age of populism it is vulnerable

to the charge of elitism ; there must be some stamp of popular approval. Therefore an

assembly provides a way of broadening the power base and including the laity in the

political process.

15 JRA2



Trends in the Shī'ī Response to Constitutionalist Ideology in Iran

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