The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran

Saïd Amir Arjomand, Nathan J. Brown, Saïd Amir Arjomand, Nathan J. Brown

• Éditeur: SUNY Press
• Année: 2013
• ISBN:
  9781438445984
• Sujet: Politics & International Relations
• Sous-sujet: Global Politics

In recent years, Egypt and Iran have been beset with demands for fundamental change. The Rule of Law, Islam, and Constitutional Politics in Egypt and Iran draws together leading regional experts to provide a penetrating comparative analysis of the ways Islam is entangled with the process of democratization in authoritarian regimes. By comparing Islam and the rule of law in these two nations, one Sunni and Arab-speaking, the other Shi>ite and Persian-speaking, this volume enriches the current debate on Islam and democracy, making for a more nuanced understanding and appreciation of differences with the Muslim world, and provides an indispensible background for understanding the Green movement in Iran since 2009 and the Egyptian revolution of 2011

1

Shiʿite Jurists and the Iranian Law and Constitutional Order in the Twentieth Century

Saïd AmirArjomand

Egypt and Iran shared a dual legal system of state law (qānun) and religious law (shariʿa) as well as a common pattern of modernization of the state and its judiciary organization. The perception that the shariʿa allowed judges too great a latitude to be suitable for a modern state was widely held in the late nineteenth century both in Iran and in Egypt, giving legal reform a high priority in the project of state modernization. In both countries, the ulema (ʿulamāʾ) who served as judges of the shariʿa courts resisted legal reform because it threatened their vested interests (Brown 1995, 118–19).

In 1918, Max Weber (1948) could still assert that the legal profession as an independent status group existed only in the West (94–96), even though a modern legal profession was in the process of formation in Egypt and Iran by then. “The legal profession is located at the crux of the rule of law,” which, as a recent study concludes, “could not conceivably function without this group committed to the values of legality” (Tamanaha 2004, 59). In Egypt and Iran, this modern legal profession had to contend with the traditional estate of clerical jurists and judges, which had historically constituted an independent status group and carried out very important judiciary functions. The relationship between and the modern legal profession and the religious profession or the old clerical estate, however, varied enormously in the two countries. As compared to Egypt, the legal profession developed much later in Iran and remained weak under the monarchy, to be further weakened and nearly destroyed by the Islamic revolution. The clerical estate as religious jurists, by contrast, played an important role in the construction of Iran's constitutional order and legal system throughout the twentieth century.

There were no legal reforms in Iran comparable to the creation of the national courts (al-mahākim al-ahliyya) in 1883 in Egypt, nor anything like the guidelines provided for these courts by way of semiofficial codification of the Hanafi law in the posthumously published work of Muhammad Qadri Pasha (d. 1886), Murshid al-hayrān. Customary (ʿorfi) law in the first half of the nineteenth century had been administered by the governors, holders of state land (toyul), and village headmen, and the royal court, the Divānkhāna, was the highest court of the realm and also functioned as a court of appeal. (Arjomand 2005). The bulk of judiciary functions, however, was carried out by the courts of the religious jurists, the mojtaheds, known as (mahāzer-e sharʿ). As in the Safavid era, “the four crimes” (ahdāth arbaʿa), namely, murder, theft, injury, and rape, were excluded from the jurisdiction of the sharʿi courts and left to the Shah and the head (amir) of his Divānkhāna, with the consent of the Shiʿite hierocracy.¹ (Rāvandi 1990, 247–49) This left the penal provisions of the shariʿa effectively in abeyance, except in criminal cases found difficult by the customary courts and referred to the sharʿi courts. Nāser al-Din Shah (1848–1896) took a keen interest in all the murder cases in the realm, and on rare occasions early in his reign, as in a case settled by retaliation (qesās) by the family of the victim in Shiraz in 1860/1278, delegated this right to provincial governors.² But in a decree of 1871/1287, he forbad provincial governors to try any murder case, thereby reaffirming his exclusive authority over the lives of his subjects (Nashat 1982, 50–51). The attempts to control the contradictory verdicts of the sharʿi courts in 1855, and to reform the royal court, restyled in 1858 Divānkhāna-ye ʿāliyya,³ were largely ineffective. In 1860/1277, however, Nāser al-Din Shah, set up a parallel traditional court of grievances (mazālem) over which he presided every Sunday, carefully avoiding making it a court of appeals (Lambton 1991, 19–20). Four years later (1864/1281), he devised a system of chests of justice (sanduqhā-ye ʿadālat) for receiving petitions from the subjects in major cities (Schneider 2006, 34–37). Finally, when inaugurating the new judiciary (ʿadliyya) in 1887/1304, he transferred his judicial authority to it. The new judiciary was divided into five courts.⁴ Each court (majles) was functionally designated in imitation of the Ottoman reformed judiciary, but in fact became known as the court of so and so (its chairman) with no regard for jurisdictional differentiation. The personnel of the new central judiciary at one point consisted of thirty-two officials, thirty servants, and an enforcement corps of twenty men (singular, farrāsh), under one officer and two lieutenants (Mohit-TabātabāʾI 1968, 69–73). The enforcement men were in charge of executing the verdicts of the sharʿi courts as well (Lambton 1991, 20).

The dual judiciary system inherited by the constitutional government in 1907 was basically the one sketched above. The ubiquitous outcry was against the complete lack of organization in the state judiciary (ʿadliyya), on the one hand, and on the other, the chaos created by the contradictory verdicts (nāsekh va mansukh) of the sharʿi courts in the absence of any judiciary hierarchy and appeal system.⁵ And there was broad consent, if not unanimity, that the remedy to the deplorable conditions of both state and religious courts was the rationalization of judiciary procedure and the unification of judiciary organization. There was no explicit hint of secularization, and no Persian word for that concept, though the fact that the reform was to be carried out by the constitutional government obviously implied state control over the unified judiciary of the future.

The Emergence of Shiʿite Constitutionalism

Shiʿism was exposed to Western constitutionalism later than Sunni Islam, and for decades made no significant response to it. Prototypically, Islamic constitutionalism appeared in the writings of a group of Islamic modernists among the reformist bureaucrats, notably Khayr al-Din Pasha in Tunisia and Namik Kemal in Turkey, who participated in the drafting of the Tunisian Constitution of 1861 and the Ottoman Constitution of 1876 respectively, and argued that representative, constitutional government captured the spirit of Islam. This argument was also made forcefully, but without any particularly Shiʿite inflection, by the Iranian consul in Tblisi, Yusuf Khan Mostashar al-Dawla, in a short tract published in 1871, Yak kalama (One Word). In this period, Ahmad ibn Abi Diyaf (2005, esp. 75), another Tunisian bureaucrat and drafter of its constitution, based his constitutionalist reading of Islamic history on his remarkable intuition that the shariʿa imposed a limitation upon autocratic monarchy, or in his words, “monarchy limited by law (qānun),” was indeed the normative form of government in Islam after the pristine Caliphate. According to him, it was violated in some historical periods but was restored by the great Ottoman dynasty. Similar assertions were made by the proponents of constitutionalism in Iran three decades later. One pamphleteer asserted that constitutional government had been founded by Prophet Muhammad and was first demanded from the rulers of Europe by the returning crusaders who discovered it as the secret of the Muslims' success; and a leading journalist claimed it as the pristine form of government in Islam that had subsequently been forgotten by Muslims (cited in Ājudāni 2003–04, 367–68, 371–72).

The peculiarity of Iran as the only Muslim country where Shiʿism was the established religion left an indelible mark on the character of Islamic constitutionalism in general as it developed in the twentieth century. By the nineteenth century, what distinguished the Shiʿite from the Sunni branch of Islam was firmly institutionalized clericalism and a powerful Shiʿite hierocracy that was independent of the state. Unlike the Ottoman constitutionalists who needed to persuade the Sultan directly, the Iranian constitutionalists also had the option of turning to the Shiʿite hierocracy. As a result of the conscious strategy of the constitutionalist movement to draw the leaders of the Shiʿite hierocracy into the political arena in order to pressure the Shah to grant Iran a constitution, the aims of the movement were presented as fully consistent with Islam, and implicitly with the interest of the hierocracy to limit the power of the autocratic state. Therefore, from the very beginning in the spring of 1905, the constitutionalist movement's demands were couched in religious terms. An early open letter by one of the main constitutionalist secret societies in May 1905 demanded the limitation of the powers of governmental and religious authorities according to the shariʿat (Lambton 1965, 650); and in January 1906 (Dhi-Qaʿda 1323), Mozaffar al-Din Shah (1896–1907) ordered the prime minister to establish a “governmental house of justice” (ʿadālatkhāna-ye dawlati) in order to “implement the ordinances of the sacred shariʿat … in such a way that all classes of the subjects (raʿiyyat) be equally treated” and to draft a constitutional charter “according to the laws (qawānin) of the incumbent sharʿ” (cited in Rahimi 1978, 60–61). ʿAyn al-Dawla, the reactionary prime minister, procrastinated, and by the time the bylaws of the house of justice had been drafted and endorsed by the king in the summer of 1906, popular demand had escalated into nothing short of a constitution (Zarang 2002, 138). It took a few more months of intense popular pressure and a different prime minister, however, to have a constitution drafted.

It is interesting to note that the term mashruta (literally, conditional) for constitutional government, emanating from the Ottoman Empire, was resisted even after the constitution was signed by Mozaffar al-Din Shah on his deathbed at the end of December 1906. His successor, Mohammad ʿAli Shah, resisted the term and proposed “shariʿa-permissible” (mashruʿa), instead of mashruta, and the Majles representatives almost acquiesced in accepting the term! In February 1907, however, the new monarch was prevailed upon to issued a decree confirming that Iran was now included among the constitutional states (doval-e mashruta-ye sāheb-e konstitusion) (Afshar 1990, 23[fasc.11], 26[fasc. 13]; Arjomand 2009a, 56). This formulation avoided “shariʿa-permissibility” as the defining feature of the new state but instead defined it in universal terms by possession of a constitution. The constitutionalists were nevertheless forced into a defensive position almost immediately, as a result of the emergence of a traditionalist movement in opposition to the Majles, and even two years later, in a pamphlet entitled Lālān (the dumb), the clerical constitutionalist, Thiqat al-Islam of Tabriz,⁶ would feel constrained to affirm, in defense of the new constitutional order, that the “Iranian constitutionalism” (mashrutiyyat) was not to imitate foreign constitutionalism and “does not wish any reprehensible innovation to occur in religion” (cited in Ājudāni 2003–04, 205). Nor was the original coupling of constitutional government and the demand for a reformed judiciary forgotten. In January 1911, the Ruznāma-ye Majles (parliamentary gazette) could reaffirm that “the judiciary (ʿadliyya) is the soul of constitutionalism and the primary cause of the creation of constitutional government and national sovereignty”⁷ (cited by Zarang 2002, 126).

Islamic constitutionalism during the first decade of the twentieth century bore the distinctive mark of Shiʿism. This formative Shiʿite contribution was occasioned by the prominence in the Constitutional Revolution (1906–1911) of the Shiʿite jurists who assumed national leadership against the shah and autocracy, and who consequently generated a deeper and more serious constitutional debate about Islam than any around the time of the Ottoman Constitution. During the process of constitution making and judicial reform in Iran, all the major issues and problems concerning the place of Islam in a modern constitutional order surfaced in this public debate and in the new free press. Foremost among these was the problem of the conformity of legislation with the shariʿa—or what, following the British colonial legal language, was much later to become the “repugnancy clause” in the 1956 Constitution of the Islamic Republic of Pakistan. The problem came to light...