Abstract
This research attempts to put forward an argument against the claim that the current legal/political system of Iran is undergoing a re-secularization process. It is argued, by focusing on concepts of the secular and the sacred/religious, that the system was never de-secularized by the Islamic Revolution of 1979. The reason derives from the facts that the main allegedly religious content of the new system is per se a secular entity, and that the existing constitutional structure is overwhelmingly secular. The content overwhelmingly originates in fiqh which is argued to be a secular entity, i.e., an amoral one, as it accommodates immorality. It is then claimed that what occurred by the Revolution was indeed the triumph of a traditional secularism over an exogenous modern secular establishment. Therefore, since the early months of the new regime a process of re-modernization, an endogenous one, has gradually taken form.
Introduction
It is generally asserted that with the occurrence of the Islamic Revolution of Iran (1979) the secular ancien regime of the country was replaced by a non-secular (religious or theocratic) one (Sālihpūr 1995, 17-23; Matsunaga 2009, 468-482). Then, the post-revolutionary events have been pursued with an eye on those re-secularizing trends encapsulated in newly established or emerging ideas and institutions of the new regime (Sālihpūr 1995). There are no doubt certain presumptions underlying the concepts utilized in the related discussions and also beneath certain disciplines and entities at the heart of recent developments of the Islamic government, in particular fiqh (Muslim jurisprudence).
That is to say, analyses like the one mentioned above usually rely on two major assumptions. Firstly, it is presupposed that the Islamic revolution (1979) in fact de-secularized the political system of the country. Secondly, as the most important ideological source of such a de-secularization (or sanctification) process has been fiqh, the latter is conceived of as a sacred, non-secular, value system. However, thus far, we have taken the secular and the sacred as two antonymous concepts or entities, an assumption which in its turn has to be explored to some extent.
Accordingly, in what follows, we will first dwell on the very concepts of the secular and secularism, in contradistinction with those of the sacred and the sacred system (e.g., theocracy). We shall then turn to the ideological or theocratic source of the alleged de-secularized new system (i.e., fiqh). In this regard, certain parts of fiqh and/or usūl al-fiqh (principles of Muslim jurisprudence) shall be referred to, with the aim of laying the ground for a justifiable claim on the nature of fiqh and the related constitutional/political system. This will enable us to gain a better understanding of the nature of the revolt which took place in the country in 1979, against a so-called secular ancien regime. This forms the next step of the analysis of this article. It will be attempted to show the distinctive part of the new system as compared with the old one. It appears that the main difference between the two systems does not lie in their secularity or sacredness, and is bound to be sought elsewhere. We then conclude by emphasizing the necessity of pursuing an indigenous endeavor for re-modernization as the most significant remedy for the ailments of the Iranian body politic.
It should be noted at the outset that the main claim of this article relates to the very presumption on which all claims on the de-secularity of the Islamic Republic rest. That is, the presumption is that as fiqh is a religious entity, it has made the resulting political system a de-secular one. I argue that fiqh has fallen far from the tree of “the religious” and, accordingly, instead of religionizing the system, it has traditionalized it—a secular traditional one.
The Secular v. the Sacred
The pivotal concepts in this study are the “secular” and “secularism.” What do they signify? Historically speaking, these concepts originate in events that unfolded in modern times, particularly during and after the Age of Enlightenment (mainly in the eighteenth century). The main idea revolved around the separation of governmental and religious officials and institutes. Accordingly, neither having a religious status, such as a priesthood; nor being a religious institution, like a church, provides a solid basis for holding a political position. This separation has been interpreted in various ways. According to one major interpretation, the government is required to keep neutral towards all religions, while, according to another interpretation, it has to be based on a rejection of religious ideas and institutions. That is, the latter should not be allowed to find manifestations in the government activities and agencies (Smith 2008; Audi 2011, chs. 2-3). Therefore, a political system that meets these requirements may be called secular, and the idea that this system ought to be in such a state is referred to as the idea of secularism. Setting aside the difference between these two understandings of the term, it is worth noting that both represent the political level of the secular and secularism.
The secular and secularism may be used at another level, that is, an intellectual, or one may say, a philosophical one. At this level, emphasis is placed on the separation of faith and reason. Indeed, the truth of claims is not sought in the authority of faith or that of the sacred texts. Rather, the human intellect and rational principles are taken as the source and justifying sources of knowledge. 1 It is worth mentioning that in fact, over the history of the Muslim life, there have been groups that have taken a rationalistic approach to metaphysical and axiological issues. This does not, however, turn their metaphysic and axiology into sacred or religious entities. On the contrary, their metaphysical and axiological debates are conceded to be rational, though their compatibility with basic articles of their religion has always remained a controversial matter.
What is significant is that at both levels of secularism an independent function or nature is presupposed for religion, otherwise, the very concept of separation does not make sense. In other words, it is conceivable that the government and the human intellect could stand on their own feet even if no religion had emerged among the people (Naquib al-Attas 1993, 16-20; Berlinerblau 2021, 1-6; Eberle 2015). Their basic functions are also more or less evident. The separation thesis (under secularism) in fact highlights a presupposition concerning the nature, main function, or core element of religion. We will turn to this later in the discussion.
Having introduced the previously mentioned levels of secularism, a question may now arise regarding the nature of binding rules of a land at any given time, say a Muslim society. Could they be designated as sacred or secular? In the case of Muslim lands, such rules have been referred to as Sharī`a or fiqh. These of course refer to the strict sense of the terms. 2 They were not, however, meant and used in the beginning of Muslim history in this sense. Sharī`a or fiqh was at first understood as a profound knowledge of the religion. This knowledge included the three branches of theological, ethical, and social regulatory rules. The terms here had a broad meaning which was called fiqh al-akbar (the greater fiqh) by certain scholars (Abū Hanīfa 1923; Yusuf 2014). Subsequently, a narrower meaning was attributed to the term. It was a strict sense of the term that referred to the science of a legal morality (the lesser fiqh) (On the definition of fiqh in the strict sense, see Subki 2003, 13; Shahīd Al-Awwal 1979, 30). That is to say, Sharī`a or fiqh in the strict sense included those rules and rulings that were devised to implement certain aspects of the new religion all over the lands under Muslims rule. They were meant to spread and indeed enforce the values approved or established by the new religion. Therefore, it was the Muslim government who compelled their (Muslim and non-Muslim) subjects, living in all territories under its political control, in particular in the newly conquered lands, to follow the mentioned “binding moral code” (On the emergence of the legal morality, see Hallaq 2005, chs. 5-6). It is fiqh in the strict sense that provides the basis for allegedly Islamic (i.e., religious or de-secular) governments.
In order to see whether or not “secular” can be attributed to the Muslim binding rules, i.e., fiqh in the strict sense, we need to return to the discussion of the nature or the core element of religion. Having succeeded to do so, we should then examine whether or not this lesser fiqh may develop into a state that becomes different from or opposite to that core element.
It may be claimed that the core element of religion is faith. In the case of Islam, the faith revolves around three main subjects, that is, those of the one god, the other world, and the prophethood (Quran 2: 2-4). The faith—although it is not clear whether or not it is per se a matter of willful choice—is, according to the Islamic teachings, protected or checked, by two parameters.
On the one hand, the faith is not to be forced upon anyone. Verse 256 of Sūra Al-Baqara (No. 2) explicitly states that “there is no coercion in religion.” 3 In other words, the free will of a person, or their agency (For the human agency side of the faith, Bagheri Noaparast 2016, 316-331 as at p. 317 et seq.), ought to be guaranteed so that their faith can be taken as a valuable quality, and that the person may be consequently held responsible for their choices and actions. The responsibility is referred to in Verse 38 of Sūra Al-Muddaththir (No. 74): “every soul is held in pledge for what it has earned.” The non-coercion parameter may be called the negative check on or protection of the faith. On the other hand, there is a positive check on faith which functions as its major indicator and at the same time as its aim. It consists of a fundamental order to the faithful to act morally and to promote it. The main command is issued to the prophet in Verse 199 of Sūra Al-A`rāf (No. 7) to enjoin goodness. It is said that this verse is the most comprehensive Quranic command on morality (Khorramshahi 2005, 176). The prophet himself announced in a well-known saying that he was sent by god to complete the best of moral dispositions (Bayhaqī 1424 H., 323).
On the basis of the above analysis, for any entity—be it a belief, a value, a process, or an institution—to be considered as “religious,” it ought to be in line with the faith (i.e., the core element of the religion), satisfying its two aforementioned parameters. In other words, “the religious” consists of such attributions. Also, deviation or distancing from the core of religion would turn the entity into a non-religious, i.e, a secular, one.
The claim is that fiqh has in fact developed in such a way that it embraced elements different from or opposite to the core element of the religion as described above. This, while consisting of various elements, has turned fiqh into a secular entity since its stage of formation. We will embark on showing this in the next section.
Fiqh vis-à-vis the Religious
The argument of this part of the discussion is that fiqh is per se a secular system. It has been so since its formation in early Muslim history. Although fiqhī reasoning systems (i.e., various usūl al-fiqhs) took form sometime towards the end of the second century A.H. (late eighth century A.D.) or even later (Schacht 1950; Hallaq 1997), fiqh began to develop during the lifetime of the prophet. Formation of the Muslim body politic in Medina and its rapid expansion after the demise of the prophet increasingly required a comprehensive binding system of rules for the governance of the body (Gurjī 2000; Hallaq 2005).
Paying attention to this very fact will help us gain a better understanding of the nature of fiqh. The Muslim umma (community), like any other polity, was in urgent need of regulation. The regulation was, again as in other societies, attainable through force (political authority). Fiqh was the collection of rules which were enforced by Muslim governments to this effect. Therefore, we may say that the first deviation from the core of religion occurred due to the intrinsic association of fiqh with government, since this meant imposition of rules on subjects of the government, be they Muslim or non-Muslim, against their will. The most important of such rules were those related to crimes of all kinds. Even the non-criminal (civil) part of the collection was enforced by the government, as the parties to a civil dispute were able and did resort to the various parts of the government apparatus, such as courts or executive officials, to compel the other party to meet their commitments. Aside from the fact that most of the rules were indeed adopted and approved by Muslim authorities from the old and current traditions, 4 the very imposition and enforcement of rules under the name of religion was profoundly problematic. It flied in the face of inherent traits of “the religious” as described above. To explain, the new religion had emerged so as to “invite” people to a new way of life revolving around a new morality on the basis of the main articles of the faith. The prophet was introduced as a “witness,” a “bearer of glad tidings,” and a “warner” (Quran 33: 45). He was explicitly required to “remind” people and was warned that he did not have imposing authority over them, also adding that this was the God who would reckon and punish those disbelievers and those who turned away (Quran 88: 21-26). Accordingly, one of the main religious duties of Muslims was to “call to the good,” rather than coercing it (Quran 3: 104). Therefore, one may assert that “enforcement” of moral rules of the new faith formed a serious deviation from “the religious” and turned fiqh into a secular system. 5
In addition, there are particular elements embedded in fiqh and usūl al-fiqh that reveal and at the same time bear out the secular nature of a fiqhī system of rules and rulings. Indeed, they point to the “amoral” aspect of the rules. In what follows, we refer to two cases in fiqh, i.e., those of concern for validity and provision of stratagems, and one case in usūl al-fiqh, i.e., the issue of non-correlation between the rulings issued by the human intellect and those ordered by shar`, as a representative handful of the whole.
Validity
There are many cases in fiqh where the concern is with the validity of the act or transaction notwithstanding its content. That is to say, the validity concern has gone as far as finding the upper hand over the spiritual or moral concern. Imām Ghazālī believes that one of the few subjects relating to the other world with which fiqh deals is salāt (the daily Muslim prayer). Even here, Ghazālī continues, fiqh touches upon external aspects of such an important faith-related act. Thus, it can be jurisprudentially valid, although it is devoid of an inner presence on the part of the praying person, which in its turn embodies humility before the God (Ghazālī (No Date), 29-32).
One of the most important rules in this regard is a general one applied to various issues of different chapters of fiqh. This general rule (principle) is commonly stated as follows: “prohibition does not entail invalidity” (Ansārī 2013, 340-342; Zarkashī Shāfi`ī 1913, 631-634; Khu’ī 1923, 4-6, 51-53). Accordingly, an act (such as a sale transaction at the time of Friday prayer (Muhaqqiq Hillī 1987, 88 (Vol. 1)) might have been forbidden by the religion, but, if committed, the resulting transaction is granted to be valid, though by the very act of transacting, a sin is simultaneously committed. There are two concurrent events here: a valid transaction and a sin, indeed, the former due to committing the latter.
On this basis, as another example, buying an asset at a very low price from a person in desperate need for money is ethically forbidden, but the resulting sale transaction is considered valid. Also, even if lending to a person who will certainly use the money in sinful ways, for example towards establishing a wine factory, is morally prohibited, as it is subsumed under the general immoral act of “assisting sinful acts,” it does not make the loan agreement void (Ansārī 2013, 132-133; Mutahharī 2001, 78-80, 110).
Another pair of simultaneous sinful act and valid action relates to conducting divorce by the husband when the wife is in the menstruation period. This is jurisprudentially forbidden. Nonetheless, if he performs it, despite the commission of a sin by the divorcer, the divorce would be considered as valid, and does bear the related effects (Mughnīya 2000, 48).
Combination of immorality and validity has also occurred in other ways in fiqh. For instance, a number of early jurisprudents used to accept the time limit rule for certain claims especially in cases related to property and money (Ibn Babwayh 1994, 368). A time limit or a lapse of time limit is in no doubt one of the regulatory rules under most of legal systems. However, one cannot deny that the claimant has a true and fact-based assertion which has to be morally admitted by the defendant and any other person for whom the truth of the claim is established. Legal denial of such a claim does fly in the face of its moral standing. Here, again, the defendant's standing is considered valid by denying the true claim of his adversary, a claim which ought to be morally conceded.
It is worth adding that the above-mentioned principle of “prohibition-validity compatibility” seems to embody a positivistic approach to a religious value system, which not only is supposed to be in line with morality, it should also contribute to the latter’s completion. The principle is a positivistic one since it distinguishes between validity and soundness of acts of the subjects of fiqh (i.e., mukallafūn). They may commit unsound (immoral) acts while these acts are considered valid, hence, bear the assumed legal consequences.
Stratagems
There are certain jurisprudential arrangements which have been devised with the aim of avoiding or reducing the burden of some religious obligations. Further, in some cases, an explicit permission is given to the subjects of fiqh (mukallafūn) to commit certain immoral acts.
For instance, every Muslim is under a duty to pay the annual alms tax (zakat: one tenth of the value of certain assets) on certain conditions. However, the owner of the assets is jurisprudentially allowed to donate them, e.g., to his/her spouse, at the annual time of the tax calculation and later receive them back as a gift, hence, evading the tax (Ghazālī (No Date), 31).
In another case, in the field of financial instruments and transactions, the financier or mudārib (in mudāraba contract) cannot jurisprudentially hold the agent (`āmil) liable for any loss to the money forwarded to him to work with. Under this kind of contract, they are supposed to share both the profit and the loss resulting from the agent’s transactions, while the agent is only responsible for the losses caused by his gross negligence and abuse. However, jurisprudential stratagems have been offered to the financier in order to impose a strict liability on the agent for any loss under that contract. One such stratagem is that the financier lends the money minus one unit of the currency to the agent and enters into the mudāraba contract with him for the whole amount. In this case the agent, as a borrower, would be strictly held liable for any loss occurred to the borrowed part of the money (Shaybānī 1999, 80).
These arrangements are numerous in fiqhī chapters. One may find them in the discussions on rituals all through to chapters dealing with juridical trials and governance. None the less, all of the aforementioned cases indeed provide for a deviation from the moral nature and ethical mission of the religion.
There are, however, cases in which committing an immoral act is directly approved. For example, subjects of fiqh are allowed to lie in certain cases. Accordingly, they have the jurisprudential permission to lie in the battlefield (as it is claimed that war is nothing but trick), to their wives, or as a means of reconciliation between people (Shaybānī 1999, 12). However, it should be added here that telling a lie is considered by great Muslim moralists as the worst, the paradigmatic case, of all immoral acts (Ibn `Arabī 2001, 296-7 (Vol. 1) & 7 (Vol. 2)). As another example, according to some fuqahā, a subject (mukallaf) is jurisprudentially allowed to pay bribes, that is, bribery is permitted, if by doing so the claimant gains a just judgement/decision on his case (Muhaqqiq Hillī 1987, 70 (Vol. 4); Sāhib Jawāhir 1943; 145-146; `Allāma Hillī 1958, 115). Although the permission is qualified with “justice,” which is taken here as an entirely subjective matter (i.e., justice is always judged from the briber’s perspective), it cannot be denied that it causes the practice of a dangerous vice, i.e., receiving bribes, in the general social system and seriously contributing to the corruption of the judicial and, hence, social system. These are all immoral.
Non-Correlation
Although there is a slim tendency among fuqahā to embrace dicta of the human intellect within the fiqhī discussions and rulings, the prevailing trend among them is to deny a necessary correlation between rulings issued by the human reason and those of shar` (which are derived from the sacred texts, the scripture).
Indeed, proponents of the non-correlation verdict can be divided into two groups. One group believes that there is no such thing as inherent goodness and badness, i.e., independent of the God’s commands comprehensible by the human reason, and hence no correlation can be perceived between the precepts of shar` and the reason in the first place (Ibn Barhān Baghdādī 1983, 56-66; Bahrānī 1984, 131).
Another group believes in such inherent entities, but they do not take them as necessarily correlated with the religious rulings. According to them the human intellect may and can consider an action obligatory while shar` does not order it. It should be noted that many of the scholars among this group explicitly state that the obligatory (wājib) and forbidden (harām) in shar` are categorically different from the good and the bad in morality. Evidently, they embrace the possibility of rational and independent moral commands, but consider them as fundamentally different from the divine ones (Astarābādī 2005, 328-329; Bushrawī Khurāsānī 1994, 171-177; Zarkashī Shāfi`ī 1913, 140-145). However, other scholars among them take a minimalist and negative approach to the rationality of the religious precepts—in order to avoid a direct opposition between the two kinds of commands—and argue that no shar`ī ruling, once issued, runs counter to the reason (Akhund Khurāsānī 1985, 132).
There is indeed an intense controversy, e.g., among shī`ī scholars, on the issue of correlation or non-correlation between shar`ī and rational (`aqlī) precepts. I will not dwell upon the nuanced arguments of the parties to the controversy at this point (Ansārī 2004; Muzaffar 1990; Mahallātī 2015-2016; Rasekh 2021), but I will examine one of its major implications for my discussion on the fiqh-religion relationship.
On this account, those who mean by non-correlation a denial of inherent moral orders, independent of divine commands, leave the room completely open for any kind of jurisprudential ruling. This ruling may run counter to the very basic moral orders, existing before the emergence of a religion or held at any time by non-religious persons. The reason is that proponents of such an interpretation of the non-correlation thesis are bound to, and do, believe that moral precepts are formed by divine commands, no matter what they are. Thus, the result is necessarily that “any” jurisprudential ruling can be expected. Not only is this counterintuitive, it is also devastating for a value system since it leads to a value-anarchism (For an appraisal of such a theory, see Rachels 2003, ch. 4.) In this line, for a critique of the Ash`arite belief in this regard, (see Akmal 1994, 374-377; Gharawī Nā’īnī (No Date), 36-37)).
On the other hand, those who do believe in inherent moral precepts, yet distinct from the religious ones, leave some room for the possibility of incongruence between shar`ī rulings and the moral ones. An explanation in this regard is in order. The discussion on (non)correlation in fact originated in a question as to the possibility of inherent or rational goodness and badness (husn wa qubh dhātī aw `aqlī), independent of what the God commands. Now, if one admits that the traits of goodness and badness are perceivable by the human intellect and at the same time embraces a separate category of commands, one is actually considering the latter as a non-moral (and not immoral) system of rules which may at times coincide with, and at times differ from it. Therefore, proponents of the non-correlation inevitably turn the religious normative rulings into a non-moral system, which may deviate from or run counter to moral precepts, as explained below.
Last but least, the non-correlation thesis, of both kinds, may act as another source of fiqhī positivism, as explained above. This would make the fiqhī system capable of accommodating immoral acts, a fact that in its turn makes the system secular and mundane. Such a system can no longer be considered a sacred and religious one, whose core element, as shown above, is of a faith-based moral nature. This might have been the reason upon which Ghazālī considered fiqh as a knowledge belonging to interests of this world (masālih al-dunyā) and fuqahā as scholars of this world (`ulamā al-dunyā) (Ghazālī (No Date), 29-30; Ibn Barhān Baghdādī 1983, 47 (who refers to fiqh as “`ilm al-ma`āsh” (science of sustenance)).
Now, according to the analysis put forward above—on the concepts of the secular and secularism, core elements of “the religious,” and the nature of fiqh—another serious question arises. How are we going to judge what happened in 1979 as a result of the Islamic Revolution in the country? Was it a de-secularizing process or something else?
Reality of the Revolt
Thus far, it has been argued that fiqh is of a secular nature, as it embraces and accommodates elements that run counter to the core of religiosity. Therefore, there is a need for an explanation of the changes that followed the grave revolutionary upheavals in the country.
The claim here is that the most important change in fact occurred to the content of the constitutional system of the country. The rest, in terms of offices, institutions, and procedures, has reserved its so-called secular form. As the constitutional drafters endeavored to replace the content by that of fiqh, scholars have tended to designate the new constitution and the resulting system as a de-secularised, i.e., a religious, one. At this stage, we focus our attention on the post-revolution constitution of the country.
It is not extravagant to claim that the institutions, offices and most of the powers of the new constitutional system 6 are all secular. There is no particular religious character to them, indeed, and except for one or two, almost none of them existed at the age of the emergence of the religion. Let us start with the main institutions. As specified in chapters 6, 9 and 11, the Constitution includes three main branches of power, i.e. the executive, judicial and legislative institutions. Article 57 of the Constitution has explicitly mentioned the three powers and the principle of their separation. In addition, according to chapter 5, the right of sovereignty is announced to belong to the people, a right granted to them by the God. This is, in its turn, the basis of a very important pillar of the constitutional system, that is, the republican pillar, to which Article 6 directly refers. The republican pillar indeed is the other side of the coin of democracy. The Constitution frequently refers to the people’s rights (the subject of an entire chapter, that of chapter 3), and in particular to their entitlement to the full sovereignty over the polity (e.g., in Article 57).
Apart from the system of separation of powers and democracy, the Constitution embraces the rule of law in a full-fledged manner. The Preamble repeatedly emphasizes the rejection of despotism (i.e., arbitrary rule) and on grounding the whole system on law. Not only does the very existence of the Constitution, which rests upon a popular vote, an official expression of acceptance of the principle of the rule of law, it also embraces, in one form or another, the principle of the rule of law. Articles 36, 37 and 169, for instance, represent the principles of legality and innocence. Principle of equality before the law is also embedded in Article 20.
On the other hand, as mentioned above, most of the citizen rights are legally recognized in the Constitution. In addition to chapter 3 (Articles 19 to 42) on the rights of the people, various provisions of the Constitution provide for different rights. For instance, the Preamble refers to “equal rights” of human forces, “protection of rights of the people” by the judiciary, and “the dignity of human beings” Further, Article 1 make use of “right to vote,” Item 14 of Article 3 sets “provision of comprehensive rights of all” as a goals of the state, Article 9 requires protection of liberties, Article 14 requires the Islamic Republic and Muslims to observe human rights of non-Muslims, Articles 46 and 47 recognizes private property, Article 61 requires the judiciary to protect the public rights, Article 67 includes “protection of rights of the people” as a part of the oath by the Parliament Deputies. Article 121 inserts “protection of liberty, reverence of persons and rights recognized by the Constitution for the people” as an element of the oath to be taken by the President, and Article 156 describes the judiciary, inter alia, as an independent power “in support of individual and social rights.”
Furthermore, a complicated system of various checks and balances is devised in the Constitution. Each part of the three powers exercises various review authorities over the other parts of the whole constitutional system. The judiciary, via the Supreme Court and the Ombudsman Organization, exerts supervisory powers over itself and other parts of the constitutional system (e.g., Articles 142, 161, 162, 173 and 174). The Parliament (the Islamic Majlis) holds several review powers over the other two powers and institutions (e.g., Articles 71 to 90). The Executive has also various supervisory authorities over diverse parts of itself and other offices and institutions of the constitutional system (e.g., Articles 113, 118, 127, 134, and 136). Last but not least, the Supreme Leader exercises various review powers over the three powers and other institutions and offices of the constitutional system (e.g., Articles 58, 110, and 112) (For a detailed discussion of the existing checks and balances within the current Iranian constitutional system, see Rasekh 2016a).
It should be noted that all of the elements and principles mentioned above—i.e., those of the republican system, the rule of law, an order of the separation of powers, rights of the people, and the complicated checks and balances structure, which include both formal and substantive non-religious (that is, conventional/rational/secular) legal and political elements, are all designed and embraced by the Constitution of the Islamic Republic of Iran in accordance with and derived from modern constitutional trends and thoughts (For various constituting elements of modern constitutionalism, see Rasekh 2016b, 259-276). Although debates of the first Constitutive Assembly after the Islamic Revolution of 1979 were highly loaded with Islamic ideological claims, the end result, as just introduced, shows how much of the forms and contents of the constitutional system are of a secular nature (For the debates of the Assembly, see Sūrat n.d., passim).
The Constitution of course contains a fiqhī office (that of the Guardianship of Jusrisconsult (Vilāyat Faqīh) as stipulated in Articles 5 and 109), and a substantive religious principle which is understood as and reduced in practice to a fiqhī precept (Articles 4 and 167). They are companied by three related institutes, i.e., the Guardian Council (Article 91), the Leadership Experts Assembly (Article 108), and the State Expediency Council (Article 112).
In this regard, it should be said, in a reverse order, that the three institutions are in fact secular devices for the functioning of the two previously mentioned office and principle. On the other hand, the substantive or fiqhī principle necessitates a non-violence of Islamic rulings by the laws and regulations, and in case of vagueness or lack of legal rules directs judges to use and apply valid fiqhī sources and rulings. Accordingly, any final analysis as to the nature of fiqh shall logically apply to this principle. It was argued in the previous section that fiqh is of a secular nature; hence, the so-called religious or Islamic principle has aimed at replacing the content of laws and regulations with those of fiqhī rules and rulings. 7
The final component, i.e., Vilāyat Faqīh, is the most important office and institution of the constitutional system that may seem to be a truly religious one (see, e.g., Gjorshoski 2017, 55-56). At least three major points may, however, be made in this regard. Firstly, the very idea of such an authority is a profoundly controversial one in jurisprudence. Indeed, the majority of fuqahā consider it as an ungrounded and indefensible claim (for a fiqhī analysis see Ansārī 2013, 545-555; for a theologio-philosophical one see Hā’irī Yazdī 1994). Secondly, this office has been embedded in a legal document and system in the first place. Therefore, it is supposed to remain within the legal limits; otherwise, it poses a serious challenge to the very idea of the rule of law upon which the whole constitutional system stands. Thirdly, and more importantly, it was soon declared by its founding father that it was in fact intended to function as a supervisory office over the new system in order to make sure that the laws and regulations of the land do not violate Islamic/fiqhī rulings. Such a claim exactly resonated with the old assertion made by constitutionalist jurisprudents, such as Muhammad Hussain Nā`īnī, during the Iranian Constitutional Revolution of 1905 (Nā’īnī 2003). In other words, both the constitutional and Islamic republican fuqahā (jurisprudents) demanded Islamisation/fiqhī-isation of the content of laws and regulation, and also supervision of fuqahā over such a job.
8
Hussain Ali Montazeri, the founding father of the office of Vilāyat Faqīh and the speaker of the Constitution Experts Assembly (1979), some years later, explicitly stated that: The best form of religious rule is that of the theory of the separation of powers, in the sense that the main job of the faqīh or fuqahā, elected by the people, is just to infer shar`ī rulings and review the existing laws to make sure they do not violate Islam. Fuqahā cannot have any expertise other than this, and other affairs of the country are to be assigned to professional individuals who are accepted and elected by the people. (Montazeri (No Date (a)), 485)
He also officially declared that: In general, the main and fundamental aim of Vilāyat Faqīh, in a society where the people wish to implement precepts of Islam, is that of guardianship of fiqh (vilāyat fiqh), that is to say, having Islamic laws in the country and governing the main affairs on the basis of the people’s consent. (Montazeri (No Date (b), 23)
On this basis, we may assert that the new system is in no doubt a secular one. Nothing particularly sacred exists in the system that enables us to designate the new legal and political system as a sacred one, being created out of a de-secularization process. Thus, it can be said that even after the Islamic Revolution the secular nature of the system remained intact. What happened was in fact a replacement of one secular system with another. That is, a so called modern secular legal/political structure was replaced by a traditional secular one. Founders of the new regime in fact did their best to change the content of the old laws and regulations with the help of what they held from the local popular culture. This culture was mainly an Islamic one embodied by fiqh. Carriers of such a legacy were evidently scholars of fiqh, i.e., fuqahā. Therefore, a supreme office was devised for the most senior faqīh so that the fiqhī nature of the system could be safeguarded.
Overall, one may say that the revolt against the ancien regime, finally coming to fruition in 1979, was in fact an uprising against the content of a secular system, rather than its very secularity. As argued and shown above, the secular nature of the system was kept in place even after the Revolution. The real fight had been between a traditional legacy and a modern arrangement. Not only did the revolutionaries set up a secular structure, embracing all modern secular elements, they also provided this structure with such secular content that, due to the vast capacity of the secular fiqhī apparatus, went way beyond the current secular arrangements of the time. The first leader of the Revolution once officially announced that the government was a fundamental rule of Islam that prevailed over all other of its rulings concerning action, even those on daily prayers, fasting, and hajj pilgrimage (Khomeini 1999, 451-452). 9
It should be added that the Islamic Revolution gained momentum and finally materialized due to a growing discontent with the post-constitutional revolutionary system. Although the latter took place in response to certain severe problems in the country, such as widespread injustice and profound underdevelopment, and despite the fact that the post-constitutional revolutionary system managed to make certain progress in establishing modern institutions and laying the ground for national unity, this regime not only did not appropriately remedy those severe problems, it also brought about a sense of social, political, and cultural alienation among the majority of the elite and the population (For an original sociological analysis of the making of the Islamic Revolution, see Naraghi 1994). Initiatives taken by the ensuing governments, in particular during the Pahlavi dynasty, and the resulting developments were seen by many as an “exogenous modernization” (mostly Westernization) of the society (See, for instance, Āle-Ahmad 1993; Sharīatī 1977). Therefore, the popular rebellion against that kind of modernization quite naturally relied on the local Muslim heritage, i.e., the heritage of the vast majority of the society, which has been a Shī`ī jurisprudential culture and society since at least the time of Safavid dynasty. 10 Therefore, it could be inferred that the battle, from the Constitutional Revolution to the Islamic one, was in fact over the content of the same secular structure (i.e., the government): a battle between the traditional and the modern.
Put differently, an exogenous modernization, alien to the prevailing local culture and society, was the main source and triggering point of the revolt. Consequently, we may say that the Islamic Revolution was not against secularization. Rather, it was about a particular kind of secularization, that is, a secular modernization that did not originate in and was not actualized on the basis of the local history and society. Several parts of the society, which were under the influence of intellectuals and religious leaders, rose against a modern secular system, perceived as alien and corrupt, with the aim of replacing it with a traditional secular system congruent with their culture and historical structures. Fiqh, as an old value system (mainly evolving during the Middle Ages) and well versed with governing a society consisting of the faithful and the non-faithful, was the only candidate to provide for the content of the new system. It was indeed a secular social regulatory system, but a traditional anachronistic one at the time of the Revolution of 1979.
Conclusion
We began our discussion with a controversial idea on the de-secularization and re-secularization trends of the Iranian post Islamic Revolutionary politico-legal system. It was argued that, due to the nature of fiqh and also that of post-revolutionary constitutional arrangements, the system was in fact traditionalized, rather than being de-secularized. A traditionalist rebellion came to fruition against an exogenous modernist establishment.
Nevertheless, as reproducing the past is a dream impossible to materialize, 11 right after founding the new, though deeply tradition stricken regime, a constant reformation trend emerged from within its heart. In the early years, the Muslim politicians and intellectuals disputed and divided around two ideas of traditional-fiqh (fiqh sunnatī) and dynamic-fiqh (fiqh pūyā). This did not lead to any substantial result, and even the annexation of a pragmatist board (the Expediency Council) to the constitutional structure of the country could not be of a significant help in solving fundamental problems derived from governing a contemporary society by an outdated fiqhī value system, i.e., the anachronism problem. Thus, the fiqhī endeavor was gradually replaced with a theologio-philosophical re-reading of the religion. In fact, the old rivalry between two Muslim middle classes, namely the traditional and the modern (in this regard, see Abrahamian 1982, chs. 4-5 and part III), emerged as a serious dispute between traditional and modernist interpretations of Islam. The former has remained, to this day, loyal to a fiqhi religion, whereas the latter has been emphasizing a rational humane religiosity (Soroush 1991).
On this basis, there is still a profound theoretical and practical controversy between traditionalism and modernism, though this time an endogenous modernism. From among Muslims there have appeared a substantial group of thinkers and writers in various fields endeavoring to make basic articles of the faith compatible with modern life and thought. The real challenge now is focused on the very concept and limits of religion (see, for example, Rasekh 2016c). In other words, we may say, a “re-modernization” process, relying on synthetic ideas, congruent with local problems and rational principles, is underway. The endogenous modernization seems to be appearing on the horizon, though very slowly, and with grave difficulties at hand.
Last but not least, it should be noted that the so-called secularization of fiqh, which inspires the re-secularization of the current government, is indeed a quasi-project which is being attempted in a desperate effort to rescue the old traditional and anachronistic religious concepts and institutions. Nonetheless, the very jurisprudential approach to religion is under critique, which is in its turn a part of the endogenous modernization (re-modernization) of the ever-secular constitutional system.
Footnotes
Author’s Note
The first version of this paper was read in the International Workshop “Imagining an Alternative ‘Post-Secular’ State: Historicizing and Comparing National Struggles over Re-secularization” and “State and Sharia in the Pre-20th-Century Middle East,” held at Tokyo University of Foreign Studies on February 17-18, 2017. I should express my gratitude and appreciation to the organizers of the workshop, in particular to Prof. Yasuyuki Matsunaga, for inviting me and making all the efforts for the event to happen in the excellent way possible.
