An Introduction to Islamic Law (37 page)

Toward the end of his life, however, Khomeini modified his doctrine for the second time. Now he maintained that the Marja
is not bound by the Shari
a and its laws, and can make his own determination of what the law is. The Marja
can abrogate even the essential pillars of Islam – such as pilgrimage – and demolish mosques, among other things, if “the interests of the Islamic country” are threatened. Very much in the spirit of the
modern state which sees itself – and acts – as a system whose function is to create and impose discipline with a view to correcting any deviation from the self-established norm, Khomeini fully absorbed this modernist perception of the law’s function. He adopted the view, unknown – in its modernist
political connotations
– to pre-modern Islamic jurists of any
strand, that: “Islam regards law as a tool, not as an end in itself. Law is a tool and an instrument for the establishment of justice in society, a means for man’s intellectual and moral reform and his purification
.”
⁴

As one historian has argued, this doctrine grants the Marja
absolute authority over and above the law, and it is precisely for this reason that the
Sunni ulama shied away from it. For “in the guise of upholding Islam the state might make it subservient to its own goals and ultimately absorb it within itself.”
⁵
It is this “guise,” representing no more than a thin veneer, that marks the superficial difference between a self-declared secular state and a self-declared Islamic state. The ulama as well as the Islamists –
Sunni and
Shi
i – have yet to discover that, in the final analysis, a state is a state, no matter what name one gives to it.

Be that as it may, very little in Khomeini’s doctrine was implemented immediately, for even the Marja
himself, the Supreme Leader, could not overhaul the
Pahlavi state with the speed he hoped for, and in fact he died before much of his legal ideology was implemented. Part of the reason may lie in the paradox of his conception that Islamic governance grounded in the Shari
a’s rule of law was gradually fading away in favor of a modernist perception of governance (a change that can be explained by the weight of his experience as a political leader of a modern state which, under the Shah, had cultivated a sophisticated system of surveillance and bureaucracy). Yet Khomeini’s paradox was that of the Islamic Republic as well, for the tension between the Islamic ideal, even in its modernized form, and the reality of the modern state was and remains dominating
.

This tension is exemplified in several features of the Republic. Consider, for instance, the limitations in the
1979 Islamic Constitution. Article 4 requires that “All civil, penal, financial, economic, administrative, cultural, military, political laws and other laws or regulations must be based on Islamic principles . . . absolutely and generally.”
⁶
Yet, the mechanism created to implement Islamization of laws was not programmed in absolute Islamic terms. The Constitution provides for a supervisory council (
COUNCIL OF GUARDIANS
) consisting of six Shari
a jurists and another six Western-trained
lawyer-jurists whose task it is to ensure that all bills presented to the Parliament stand in conformity with Islamic law.
The juristic qualifications of the latter six members might well be questioned, at least on grounds of lack of scholarly expertise in Shari
a’s traditional law and its interpretive system.

Furthermore, according to Article 167, the
court judges are supposed to adjudicate each case on the basis of
codified law, and in the absence of such a law their decisions must conform to a
fatwa
issued by a learned Shari
a jurist. This article effectively preserves much of the
Pahlavi legal system, since it was understood by all parties concerned that the transformation aspired to in the various Articles that require comprehensive Islamization cannot obtain except through a piecemeal process. And this is in fact what happened. As late as 2000, the
Procedure of General and Revolutionary Courts replicated most of these stipulations, stating that if any law is inadequate or unclear or does not exist in regard to a case at issue, the court must make recourse to a
fatwa
based in Islamic legal principles or the judge himself must perform
ijtihad
. However, should the law be found by the judge to contradict the state’s enacted law, the case must be sent to another court for adjudication. The
state, as we shall see further below, must reign supreme, a situation that hardly squares with Khomeini’s own assertion that “[Islamic] law alone . . . rules over society. Even the limited powers given to the Most Noble Messenger and those exercising rule after him have been conferred upon them by God . . . in obedience to divine law.”
⁷