An Introduction to Islamic Law (38 page)

In the first months of the
Revolution, the symbols that touched on the sensitive images of the Shari
a received the first attention, for this was the testing ground. How can an Islamic state, an Islamic revolution, continue to uphold the idolatrous laws of the sacrilegious Shah? So night clubs, alcohol shops, music (including videos and cassettes), dancing and the sale of pork were immediately outlawed. The
Constitution shortly thereafter came to prohibit usury, mentioning it by name (Art. 43). And within four months of the new Republic’s birth, the Islamic penal laws were instated in lieu of the Shah’s criminal code, which was based on the
1816 French Penal Code. However, even this instatement of penal law was tenuous, requiring additional enactments in 1982, 1988, 1989, 1992 and 1996 to give it a concrete and more complete form.

Furthermore, in installing the so-called
discretionary punishments (
ta
zir
), the Republic faced a dilemma. In the Shari
a, offenses ranged from the moral to the monetary and homicidal. Some of these (i.e., adultery/fornication, wrongful accusation of adultery/fornication, drinking alcohol, theft and highway robbery) were known as
HUDUD
, and
happened to be regulated by the Quran and the Sunna. But there were other offenses whose punishments were to be determined by the judge in light of the particular facts and circumstances of each case. In no case can the punishments for these offenses exceed the
hudud
penalties, nor can these punishments be predetermined. Acting in the manner of a modern state, the Islamic Republic, however, fixed the penalties for such offenses, in effect taking away the most characteristic property of what makes
ta
zir
what it is, namely, the
judge’s social, moral and legal evaluation of a particular and unique situation which every case represented. It was the ad hoc balance that the
qadi
struck among these three and other considerations which gave
ta
zir
its features and distinguished it from
hudud
. Failure to recognize that the conceptual foundations of
ta
zir
have always assumed that each case presents unique moral conditions was a reflection not only of the moral community’s undoing but also of the modern state’s inherent role in metamorphosing the otherwise independent Shari
a into a form of state law. The reasoning behind creating this uniformity – i.e., that different penalties were imposed by judges for the same crimes – bespeaks the inevitable discomfort that the modern state displays in the face of heterogeneity: the Subject must always be uniform
.

The
supremacy of the state was not merely a conceptual residue of
modernist influences on Islamic modes of governance, but rather a conscious choice of how the Islamic Iranian experience, or at least the influential Khomeini and other Ayatullahs surrounding him, articulated its own concept of political modernity. In effect,
Khomeini viewed Islamic law not merely as a tool by means of which certain social and moral goals can be accomplished, but one that is derivative of the state, the cardinal ordinance of God. “The state is the most important of God’s ordinances and has precedence over all other derived ordinances of God.” The state does not operate within the framework of the law; rather, it is the law that operates within the state. “If the powers of the state were [only] operational within the framework of God’s ordinances, the extent of God’s sovereignty and the absolute trusteeship given to the Prophet would be a meaningless phenomenon devoid of content.”
⁸

This vision of the state entirely comports with Khomeini’s other pronouncements that, in the name of the state, the
Marja
could suspend with impunity Shari
a rules, major and minor, if the “country’s” interest required doing so. In this vision, institutionalized checks and balances, both Western and Islamic, are absent. In theory and in practice, the Marja
and the
Council of Guardians have arrogated to themselves the “stately”
power to pronounce on what is and what is not Islamic
. But this power of determining the law in the name of the state in no way reflects the tradition of the Shari
a, wherein the conjoined effects of the stability of the law and its supremacy guarantee, as they in fact did, that the “state” always operates under the rule of law.