Alhassanain(p) Network for Heritage and Islamic Thought

Notes

The law in the Islamic Renaissance and the role of Muhammad Baqer as-Sadr

1 In the vast literature on the subject, some telling titles: D. Pipes, In the Path of God: Islam and Political Power, New York, 1983; E. Sivan, Radical Islam, New Haven, Conn., 1985; A. Hyman, Muslim Fundamentalism, London, 1985; J. Esposito ed., Voices of Resurgent Islam, Oxford, 1983; S. Hunter ed., The Politics of Islamic Revivalism, Bloomington, 1987;’Islam and Polities’, Third World Quarterly, (Special Issue) 10:2, April 1988; B. Etienne, Ulslamisme Radical, Paris, 1987; Sou’al ed., L’lslamisme Aujourd’hui, Paris, 1985; M. Ayoob, The Politics of Islamic Reassertion, London, 1981; O. Carre and P. Dumont eds., Radicalismes Islamiques, 2 vols., Paris, 1986; G. H. Jansen, Militant Islam, London, 1979; S. Irfani, Revolutionary Islam in Iran, London, 1983; M.S.’Ashmawi, Al-Islam as-Siyasi (Political Islam), Cairo, 1987; S. Abu Habib, Dirasafi Minhaj al-Islam as-Siyasi (Study in the Method of Political Islam), Cairo, 1985. Among the best introductions remains E. Mortimer, Faith and Power, London, 1982. Ironically, disparaging as the word fundamentalism may sound, it does correspond to the way some of these movements identify themselves.

Among the designations,’Usuli’ Islam can be translated literally as’fundamentalist’, in reference to usul, roots, fundaments. The Arabic word however has more connotations, particularly in Shi’ism. See this volume, chapter one.

More neutral is’political Islam’, al-islam as-siyasi. Another generic designation is haraka islamiyya, Islamic movement. The term salafi (Islam of the forebears), which curried favour at the beginning of the century, especially in Wahhabi Arabia, has fallen into disuse.

2 Interesting works include, from an anthropological perspective, M. Gilsenan, Recognizing Islam, London, 1982; L. Caplan ed., Studies in Religious Fundamentalism, London, 1987; J.P. Digard ed., Le Cuisinier et le Mangeur & Hommes-Etudes d’Ethnographie Historique du Proche-Orient, Paris, 1982; from a sociological perspective, e.g. Saad Eddin Ibrahim,’Anatomy of Egypt’s militant groups: methodological note and preliminary findings’, International Journal of Middle Eastern Studies, 12, 1980, 423-53; from an historical angle, I.Lapidus, Contemporary Islamic Movements in Historical Perspective, Berkeley, 1983; from a broader political-cultural sense, P. Bannermann, Islam in Perspective, London, 1988; J. Berque, Islam au De’fi, Paris, 1980.

3 See the legal thrust of the thesis of the’Islamic engineer’ Muhammad’Abd as-Salam Faraj legitimising Egyptian President Sadat’s killing, in Muhammad’Amara ed., al-Farida al-Gha’iba (The Neglected Duty), Cairo, 1982; J.J.G.Jansen, The Neglected Duty; the Creed of Sadat’s Assassins and Islamic Resurgence in the Middle East, New York, 1986.

4 The word is Louis Althusser’s. See e.g. his’ Avertissement aux lecteurs du Livre I du Capital’, in K. Marx, Le Capital, Paris, 1969, p. 6; Le’nine et la Philosophie-Marx et Le’nine devant Hegel, Paris, 1972.

5 On Ibn Khaldun, see A. al-Azmeh, Ibn Khaldun in Modern Scholarship, Beirut, 1981, esp.’Bibliography’, pp. 229-318; on long waves (longue duree) in history, the masterpiece of F. Braudel, La Mediterranee et le Monde Mediterranean a L’Epoque de Philippe II, 2 vols., Paris, new edn 1966, and his theoretical essay,’Histoire et sciences sociales: la longue duree’, Annales ESC, 4, Oct.-Dec. 1958, 725-53, reprinted in Ecrits sur l’Histoire, Paris, 1969, pp. 41-83. Attempts to look at the contemporary turmoil in Islam have not yet displayed a concern for a longue duree approach, but inspiration can be drawn from the study of’ salvation history’ introduced into the field by John Wansbrough. See his Qur’anic Studies:

Sources and Methods of Interpretation, Oxford, 1977 and The Sectarian Milieu.

Content and Composition of Islamic Salvation History, Oxford, 1978; on Wansbrough, see A. Rippin,’ Literary analysis of Qur’an, Tafsir, and Sira: the methodologies of John Wansbrough’, in R. Martin ed., Approaches to Islam in Religious Studies, Tucson, 1985, pp. 151-63; and my’Contemporary Qur’anic exegesis between London and Najaf; a view from the law’, unpublished communication, SOAS, 21 October 1987. For an approach to classical Shi’i texts inspired by Wansbrough, see Norman Calder, The Structure of Authority in Imami Shi’i Jurisprudence, Ph.D. thesis, London, 1980.

6 On the concept of’breaks’ in scientific disciplines, Thomas Kiihn, The Structure of Scientific Revolutions, Chicago, 1962, new edn, 1970; Gaston Bachelard, Le Rationalisme Applique, Paris, 1975 (1st edn, 1949), pp. 104-5. On the birth and formation of Arab historiography, see A. Duri, Bahthfi Nash’at’Urn at-Tarikh nd al-arab, Beirut, i960, translated by L. Conrad as The Rise of Historical Writing among the Arabs, Princeton, 1983.

7 Relative only, see our use of Ibn Khaldun in chapter 3 on constitutional law.

8 Ibn Manzur, Lisan al-’Arab, Beirut, 1959, vol. 3, pp. I75ff.

9 Az-Zubaydi (d. 1205/1790), Taj al-’Arus, n.d., Benghazi, vol.5, PP-394ff-See also Schacht, s.v. sharfa, in Encyclopaedia of Islam I:’the road to the watering place, the clear path to be followed, the path which the believer has to tread, the religion of Islam, as a technical term, the canon law of Islam.’

10 N. Coulson, Succession in the Muslim Family, Cambridge, 1971, pp. 2-4. This view has been seriously challenged recently by D. Powers and M. Mundy. By way of an exegetical analysis, Powers has suggested that there was an intermediary’ proto-law of succession’ before the crystallisation of the system of succession. See his Studies in Qur’an and Hadith, Berkeley, 1986; and’The historical evolution of Islamic inheritance law’, in C. Mallat and J. Connors eds., Islamic Family Law, London, 1990, pp. 11-29. Mundy has studied the development and changes of succession law in the wider historical and social context,’The family, inheritance, and Islam: a re-examination of the sociology of fara’id law’, in A. Azmeh ed., Islamic Law: Social and Historical Contexts, London, 1988, pp. 1-123.

11 On slaves and slave law, see e.g. Mundy,’The family’, pp. 31-2, 38-40, 107, 109-12; P. Crone, Slaves on Horses: the Evolution of the Islamic Polity, Cambridge, 1980; see also the methodological use of slave law by Y. Linant de Bellefonds, Traite de Droit Musulman Compare, 1, Paris, 1965, p. 9.

12 Martin Kramer,’Tragedy in Mecca’, Orbis (Philadelphia), 32:2, 1988, 231-47.

See recently, the recriminations against Wahhabism in Ayat Allah Ruhullah al-Khumaini’s testament, published in Keyhan Havd’i,’Matn-e kamel-e wasiyyatname-ye ilahi-siayasi Imam Khumaini’ (Complete Text of the Divine-Political Will of Imam Khumaini), 14 June 1989, p. 2.

13 See literature mentioned in the Introduction to Part I.

14 Exceptions can be found in Islamic Iran, Pakistan, Saudi Arabia, and the Sudan.

15 Norman Anderson has closely followed these developments, see e.g. his’Recent developments in shari’a law’ (i-x), published between 1950 and 1952 in The Muslim World;’The Syrian law of personal status’, Bulletin of the School of Oriental and African Studies, 1955,34-49;’A law of personal status for Iraq’ and’Changes in the law of personal status in Iraq’, International and Comparative Law Quarterly, i960, 542-63 and 1963, 1026-31;’Reforms in family law in Morocco’, Journal of African Law, 1958, 146-59. See also my’Introduction’ to Mallat and Connors eds., Islamic Family Law, pp. 1-7.

16 Wahbe az-Zuhaili, Nazariyyat ad-Daman fil-Fiqh al-Islami (Theory of Responsibility in Islamic Law), Damascus, 1970.

17 Muhammad Bahr al-’Ulum,’Uyub al-Irada fish-Shari’a al-Islamiyya (Vices of Consent in Islamic Law), Beirut, 1984.

18 This is the familiar story among specialists of Iran where even as perceptive an analyst as Fred Halliday published just before the Revolution a book which was sceptical on the solidity of the Shah’s system, but failed to mention the Islamic movement which would soon topple him. F. Halliday, Iran: Dictatorship and Development, London, 1979. An exception was Hamid Algar, whose personal interest and friendship with the revolutionaries allowed him to discern the strongest organised element in the tidal wave that shook Iran in 1978-9.

H. Algar,’The oppositional role of the ulama in twentieth-century Iran’, in N. Keddie ed., Scholars, Saints and Sufis, Berkeley, 1972, pp. 231-55 (original communication delivered in 1969).

19 Beyond these, there were naturally further dimensions of’Islamicity’, the most prominent of which was cultural: the referents to Islam in the culture were institutionalised. Such is the case of’martyrdom’ in the Karbala paradigmatic form, most strikingly at work in the war with Iraq. But there were other aspects as well, such as the education and the restructuring of the universities, women’s issues, etc. All these topics, however, fall beyond the strict legal sphere, although the law will say an occasional word in terms of prohibitions and encouragement.

In the area of family law, this probably appears best in the example of the mutla.

The mut’a however had never been forbidden by the Ancien Regime, and its enhancement under the new system has taken a purely cultural form. See the remarkable studies of Shahla Haeri,’ The institution of mut’a marriage in Iran:

a formal and historical perspective’, in G. Nashat ed., Women and Revolution in Iran, Boulder, Co., 1983, pp. 231-51;’Power of ambiguity: cultural improvisation on the theme of temporary marriage’, Iranian Studies, 19:2, 1986, 123-54, and her Law of Desire: Temporary Marriage in Shi’i Iran, London, 1989.

On the idealised prototype of the new’Islamic’ woman, see my’Le feminisme islamique de Bint al-Houda’, Maghreb-Machrek, 116, 1987, 45-58.

20 On Shari’ati, see N. Yavari d’Hellencourt,’Le radicalisme shi’ite de’Ali Shari’ati’, in O. Carre and P. Dumont eds., Radicalismes Islamiques, Paris, 1986, vol. 1; S. Akhavi,’Shari’ati’s social thought’, in N. Keddie ed., Religion and Politics in Iran, New Haven, 1983, pp. 125-43.

21 Two books published in English cover the field of Islamic thought in a comprehensive way. Albert Hourani’s Arabic Thought in the Liberal Age, Cambridge, 1962, and Hamid Enayat’s Modern Islamic Political Thought, Austin, Texas, 1982, span the century with accuracy, comprehensiveness and method.

See also the good study in Arabic of Ahmad Amin, Zu’ama’ al-Islah (Leaders of Reform), Cairo, 1948.

22 E. Rabbath, La Constitution Libanaise, Origines, Textes et Commentaires, Beirut, 1982, p. 3.

23 The classic work on the first Iranian constitution is A. Kasravi, Tarikh-e Mashruta-ye Iran (History of the Constitution of Iran), 5th ed. Tehran, 1961.

Kasravi was assassinated in 1946.

24 Why the Shi’i world had suddenly become the locomotive of Islamic thought will probably remain not completely answered. In a sense, an answer to a negative question must be sought, and such answers are never completely satisfactory.

Perhaps some explanation lay in the absence of an independent Sunni educational machine after the taming of the Azhar at the turn of the century, whereas the Shi’i’ulama had retained the independence which rendered their thought and contributions much more active. The connection between a radical Islamic movement and the state also offers a partial answer: there is no equivalent to Iran as an Islamic revolutionary state in the rest of the Muslim world. The’underdog’ cultural tradition of Shi’ism might have also contributed to fuel the subsequent revolutionary message. In any case, and apart from the radical groups in the Sunni world in Syria, Saudi Arabia, Egypt, etc., which disturbed all these governments in the 1980s, it is not suggested that’new’ thought was limited to Shi’is. On the issue of riba (interest, usury) for example, the debate in Egyptian legal and clerical circles had no match in terms of intensity and quality.

25 On wilayat al-faqih, see this volume, chapter 2.

26’Je suis tombe par terre, c’est lafaute a Voltaire, Le nez dans le ruisseau, c’est lafaute a Rousseau.’ 27 See e.g. Shari’ati, Husayn, Varith-e Adam (Husayn, Heir of Adam), Tehran, n.d.; Tashayyu’-e’Alavi va Tashayyu’-e Safavi (Ahd Shi’ism and Safavid Shi’ism), Tehran, 2nd edn, 1350/1971.

28 On the Shi’i international, see this volume, pp. 15-19 and Part I, and literature cited.

29’Imam Khomeini’s message on hearing of the martyrdom of Ayatollah Sayyid Baqir Sadr at the hands of the American puppet Saddam Husain’, in The Selected Messages of Imam Khomeini Concerning Iraq and the War Iraq Imposed upon Iran, Tehran, 1981, p. 47.

30 H. Batatu,’Iraq’s underground Shi’a movements: characteristics, causes and prospects’, Middle East Journal, 3514, Spring 1981, 577-94; published also with slight alterations as’ Shi’i organizations in Iraq: al-da’wah al-islamiyya and almujahidin’, in J. Cole and N. Keddie eds., Shilism and Social Protest, New Haven, 1986, p. 182.

31 Muhammad Baqer as-Sadr, Unsere Wirtschaft, Eine Gekurzte Kommentierte Ubersetzung des Buches Iqtisaduna, Translation and Comments by Andreas Rieck, Berlin, 1984. See for various translations this volume, chapter 4, p. 142.

32 R. Dekmejian, Islam in Revolution, Syracuse, 1985, pp. 127-36.

33 A. Bar’am,’The shi’ite opposition in Iraq under the Ba’th, 1968-1984’, in Colloquium on Religious Radicalism and Politics in the Middle East, Hebrew University, Jerusalem, 13-15 May 1985.

34 Dossier: Aux sources de l’islamisme chiite-Muhammad Baqer as-Sadr’, Cahiers de I’Orient, issue 8-9, 1987-8, 115-202.

35 The most comprehensive and authoritative biography of Sadr appears in K.

Ha’iri,’ Tarjamat hay at as-sayyid ash-shahid’ (Life of the Martyred Sayyed [Sadr]), in Muhammad Baqer as-Sadr, Mabaheth al-Usul (Studies in usul), Ha’iri ed., Qum, 1407/1987, pp. 11-168. The birthdate is mentioned at p. 33. Other biographies consulted include, in order of importance, Ghaleb Hasan Abu’Ammar, Ash-Shahid as-Sadr Ra’ed ath-Thawra al-hlamiyya fil-’Iraq (Martyr as-Sadr, Leader of the Islamic Revolution in Iraq), Tehran, 1401/1981 (published under the auspices of the Iranian Ministry of Islamic Guidance);’ Al-imam ashshahid as-sayyid Muhammad Baqer as-Sadr’ (The martyred imam Muhammad Baqer as-Sadr), Tariq al-Haqq (London), 2:12, Feb. 1982, pp. 5-20. In European languages, the most comprehensive biography is Rieck’s’ Introduction of the translator’, in Sadr, Unsere Wirtschaft, pp. 39-68. See also the remarks of Batatu,’Underground’, pp. 578-81; P. Martin,’Une grande figure de l’islamisme en Irak’, Cahiers de l’Orient, 8-9, 1987-8, 117-35. The birthdates vary between 1930 and 1934. The late Mahdi al-Hakim told me that Sadr, like his older brother Isma’il, died a year before reaching fifty. If Sadr died at forty-nine, he would have been born in 1931. Conversations with Mahdi al-Hakim, London, Summer-Autumn 1987. (Mahdi al-Hakim was assassinated in the Sudan in February 1988.)

36 Ha’iri,’ Tarjamat’, p. 28.

37 Muhammad Baqer as-Sadr was then three years old according to Ha’iri and Abu’Ammar. His sister Bint al-Huda was his junior, born according to Ha’iri in 1356/1937, the year of their father’s death.

38 The name of his mother is not mentioned in the sources. She was the daughter of Ayat Allah Shaykh’Abd al-Husayn Al Yasin, who is said to have been an important religious figure of Baghdad after the death of Murtada al-Ansari.

Sadr’s mother was the sister of Murtada Al Yasin.

39 Murtada was a well-established scholar when he issued a famous fatwa against the Communists on 3 April i960. The fatwa is reported in H. Batatu, The Old Social Classes and the Revolutionary Movements of Iraq, Princeton, 1978, p. 954.

(This important work, along with Samir al-Khalil’s Republic of Fear, London, 1989, provide the most challenging studies of twentieth-century Iraq. See further this volume, p. 9 and my article on’Obstacles to democratization in Iraq’, which is a critical reading of modern Iraqi history in the light of Batatu and Khalil’s theses, to be published at University of Washington Press, forthcoming, 1993.) Isma’il is said to have written several books, two of which, a commentary on Islamic penal legislation and a first volume of Qur’anic exegesis, were published. Ha’iri,’ Tarjamat’, p. 29.

40 Ha’iri,’Tarjamat’, p. 44, relating a recollection by a classmate of Sadr, Muhammad’Ali al-Khalili.

41 Ha’iri,’ Tarjamat’, p. 42; also Abu’Ali,’A glimpse of the life of the martyred imam Muhammad Baqir al-Sadr’, n.p. n.d., p. 7.

42 Muhammad Baqer as-Sadr, Fadak fit-Tarikh (Fadak in History), 1st edn, Najaf, 1955. A reference to this first edition, which was published care of Muhammad Kazem al-Kubti, is mentioned s.v. in F. Abdulrazak ed., Catalog of the Arabic Collection, Harvard University, Boston, 1983. A second edition was published at al-Haydariyya Press, also in Najaf, in 1970. Several Beirut reprints followed.’Dr Abu’Ali’ states that Sadr wrote Fadak fit-Tarikh when he was seventeen.’A glimpse’, p. 7. This is corroborated in Ha’iri,’ Tarjamaf, p. 64.

43 See on Fadak within the Shi’i-Sunni communitarian background, my’ Religious militancy in contemporary Iraq: Muhammad Baqer as-Sadr and the Sunni-Shi’a paradigm’, Third World Quarterly, 10:2, April 1988, 714-5.

44 There is a large literature on the 1920 Revolt and on the role of the’ulama leadership. See e.g. R. al-Khattab, Al-’Iraq bayna 1921 wa 1927 (Iraq between 1921 and 1929), Najaf, 1976; A. al-Fayyad, Ath-Thawra al-’Iraqiyya al-Kubra (The great Iraqi revolt), Baghdad, 1963. An excellent account is’Ali al-Wardi, Tarikh al-’Iraq al-Hadith (History of Modern Iraq), vol.6, Min’Am 1920 ila’Am 1924 (from 1920 to 1924), Baghdad, 1976, pp. 201-67. See also the telling testimony of Amin ar-Rihani, an eye-witness visitor, Muluk al-’Arab (The Arab Kings), Beirut, 2nd edn, 1929, vol.2.

45 The’Communist threat’ was in the 1950s a common phenomenon in the Middle East, particularly in Iran and Iraq. See generally Batatu, The Old Social Classes, Book II, pp. 365-705. On the impact on Sadr’s writings, see this volume, pp. 11-12.

46 M. H. Kashif al-Ghita’, Muhawarat al-Imam al-Muslih ash-Shaykh Muhammad al-Husayn ma’ as-Safirayn al-Baritani wal-Amriki (Conversations Between the Reformist Imam Shaykh Muhammad Husayn and the British and American Ambassadors), 4th edn, Najaf, 1954, p. 21. The leitmotiv on the Palestine question started early:’There is nothing now but friendship, [Kashif al-Ghita’] said, between us and the English, if it were not for the wrongs of our Arab brothers in Palestine, and while those last, there can be neither peace nor love between us from the Mediterranean to India.’ Freya Stark, Baghdad Sketches, London, 1947 (1st ed. 1937), p. 172. It is to be noted, however, that much as the question of Palestine was central to the’ulama of Iraq and Iran, the issue did not emerge in post-1967 Iraq as it did in Iran. This is due to the fact that the successive governments which were in power in Baghdad after the demise of the King and Nuri as-Sa’id (who were perceived, especially after the Baghdad Pact, to be closely aligned with Western powers and by implication with Israel) in 1958 were consistently opposed, at least in their rhetoric, to the West. This was obviously not the case with the Shah of Iran.

47 Muhammad Baqer as-Sadr, Falsafatuna (Our Philosophy), 10th ed. Beirut, 1980, pp. 11-53.

48 Muhammad Baqer as-Sadr, Al-Ma’alim al-Jadida fil-Usul (The New Configuration ofusul), Beirut, 1385/1964.

49 Usul al-fiqh is the most arcane discipline in Islamic law. For a recent introduction in English, see M. H. Kamali, Principles of Islamic Jurisprudence, Malaysia, 1989, rpt Cambridge, 1991. On classical Sunni usul, see recently W. Hallaq,’The development of logical structure in Sunni legal theory’, Der Islam, 64, 1987, 42-67. On early Shi’i usul, R. Brunschvig,’ Les usul al-fiqh imamites a leur stade ancien’, in Le Shi’isme Imamite, Paris, 1970, pp. 201-14.

50 Muhammad Baqer as-Sadr, Durus fi’Urn al-Usul (Lessons in the Discipline of usul), 3 parts in 4 vols, Beirut, 1978-80. On bahth al-kharej and the Najaf curriculum, see this volume, chapter 1.

51’ Daght fil-’ibara’ Sadr, Durus, I, p. 9.

52 The four Shi’i books mentioned are: the Ma’alim of ash-Shahid ath-Thani (d. 966/1559), Qummi’s (d. 1231/1816) Qawanin, al-Khurasani’s (d. 1328/1910) Kifaya, and Ansari’s (d. 1329/1911) Rasa’el. See also Muhammad Baqer as-Sadr, Durus, Introduction, 1, pp. 19-29; Muhammad Bahr al-’Ulum,’ Ad-dirasa wa tarikhuha fin-Najaf (Teaching and its history in Najaf), in J. Khalili ed., Mausu’at al-Atabat al-Muqaddasa, Qism an-Najaf (Encyclopaedia of the Holy Places: section on Najaf), vol. 2, Beirut, 1964, pp. 95, 96. See further on these jurists and the curriculum, this volume, chapter 1, p. 39.

53 Sadr, Mabaheth al-Usul, quoted above n. 35. According to Ha’iri, this book is only the compilation of Volume 1 of Part 2 in a series of lectures by Sadr.

54 Mahmud al-Hashimi, Ta’arud al-Adilla ash-Shariyyaa Taqriran li-Abhath as-Sayyid Muhammad Baqer as-Sadr (Contradictions of Legal Evidence, a Report on the Research of Muhammad Baqer as-Sadr), Beirut, 2nd edn, 1980. Introduction in Sadr’s hand, dated 1394/1974.

55 Ha’iri,’Tajribat’, p. 67. In his introduction to the translation of Iqtisaduna, p. 67, Rieck mentions ten volumes printed in Najaf since 1955.

56 Ha’iri,’ Tajribat’, p. 44.

57 Muhammad Baqer as-Sadr, Al-Usus al-Mantiqiyya lil-Istiqra’ (The Logical Bases of Induction), Beirut, 1972.

58 Sadr, Al-Usus al-Mantiqiyya, p. 507.

59 Muhammad Baqer as-Sadr,’ Al-yaqin ar-riyadi wal-mantiq al-wad’i (Mathematical Certainty and Positive Logic), in Ikhtarnalak (Choice of Works), Beirut, I975, PP-9-21.

60 Muhammad Baqer as-Sadr, Falsafatuna, 1st edn, Najaf, 1959. Translated by Shams Inati, London, 1987.

61 Ha’iri,’ Tajribat’, p. 63. Conversations with Mahdi al-Hakim, summer 1987.

62 See Sadr’s Introduction to Falsafatuna. Y. Muhammad,’Nazarat falsafiyya fi fikr ash-shahid as-Sadr’ (Philosophical Enquiries into the Thought of Martyr as-Sadr), Dirasat wa Buhuth (Tehran), 2:6, 1983, 173. The debate has persisted to date. See H. Haidar, Madha Ja’a Hawla Kitab Falsafatuna? (What Has been Written about Falsafatuna?), Qum, 1403/1983.

63 The Appendix was prepared by Muhammad Rida al-Ja’fari, Falsafatuna, 1st edition, pp. 348-9. It was omitted in later editions. The list includes classics in Arabic by Marx, Engels, Stalin, Mao Tse-Tung, Plekhanov, a fair number of French communists popular in the 1950s, Henri Lefebvre, Roger Garaudy, Georges Politzer, as well as some’local’ Arab and Iranian Marxists such as Georges Hanna and Taqi Arani.

64 Sadr, Falsafatuna, pp. 227-53.

65 Ibid., p. 229.

66 Ibid., p. 233. See also note p. 233 n. 1.

67 Ibid., p. 236.

68 In contemporary Shi’i law, see e.g. the treatises of Muhsin al-Hakim (d. 1970), Minhaj as-Salihin (The Path of the Righteous), 2 vols., Beirut, 1976, 1980;

Ruhullah al-Khumaini (d.1989), Tahrir al-Wasila (Clearing the way), 2 vols., Beirut, 1985 [Original published in Najaf, 1387/1967]; Abul-Qasem al-Khu’i, Minhaj as-Salihin, 10th edn, Beirut, n.d., 2 vols.; summary in al-Masa’el al-Muntakhaba (Chosen Questions), 22nd edn, Beirut, 1985.

69 Muhammad Baqer as-Sadr’s comments on Muhsin al-Hakim’s Minhaj as-Salihin appear in the edition mentioned in the previous note. They were written in 1974.

70 Muhammad Baqer as-Sadr, Buhuth fi Sharh al-Urwa al-Wuthqa (Studies on al-’Urwa al-Wuthqa), 3 vols., Najaf, 1971 ff. Another fiqh work is Muhammad Baqer as-Sadr, Mujaz Ahkam al-Hajj (Compendium of Pilgrimage Rules), Beirut, n.d. (Introduction dated 1395/1975). Sadr also wrote an Introduction to the Shi’i Imam Zayn al-’Abidin’s book of prayers As-Sahifa as-Sajjadiyya, Beirut, n.d..

71 Muhammad Baqer as-Sadr, al-Fatawa [or Fatawi, plural offatzua] al-Wadiha Wifqan li-Madhhab Ahl al-Bayt (The Clear Decrees According to the Rite of the Household of the Prophet), Beirut, 1976. But see a critique of the risala as genre in al-Fatawa al-Wadiha, pp. 11-12.

72 In the 1976 edition of al-Fatawa al-Wadiha, there is a separately paginated pamphlet, al-Mursil, ar-Rasul, ar-Risala (The Sender, the Messenger, and the Message), which is not very original. It is independent of the proper chapter introducing al-Fatawa al-Wadiha, which, in contrast, includes interesting and novel remarks.

73 Sadr, al-Fatawa al-Wadiha, pp. 46-7. For property law and legal concepts like zakat, khums, etc., see this volume, chapters 4 and 5. See also this passage in the context of the history of Shi’i law, H. M. Tabataba’i, Introduction to Shi’i Law, London, 1984, p. 16.

74 Comments of Muhammad Baqer as-Sadr on Hakim’s Minhaj as-Salihin, quoted above n. 65. Part one,’Ibadat; Part two, Mu’amalat.

75 Muhammad Baqer as-Sadr, al-Bank al-la Ribawi fil-Islam (The Interest-free Bank in Islam), Kuwait, 1969, discussed in this volume, chapter 5.

76 Muhammad Baqer as-Sadr, Lamha Fiqhiyya Tamhidiyya’‘an Mashru1 Dustur al-Jumhuriyya al-Islamiyya fi Iran (A Preliminary Legal Note on the Project of a Constitution for the Islamic Republic of Iran), Beirut, 1979; Khilafat al-Insan wa Shahadat al-Anbiya"1 (Succession of Man and Testimony of the Prophets), Beirut, 1979; Manabi1 al-Qudra fid-Dawla al-Islamiyya (The Sources of Power in the Islamic State), Beirut, 1979. See this volume, chapter 2.

77 Muhammad Baqer as-Sadr, al-Madrasa al-Qur’aniyya (The Qur’anic School), Beirut, 2nd edn, 1981. (Lectures on the Qur’an given in 1979-80.)

78 For a complete list of Sadr’s works see s.v. in the bibliography. An edition of the’ Collected Works’ of Muhammad Baqer as-Sadr, of which fifteen large volumes have now appeared, was started in 1980 by Sadr’s traditional Lebanese publishing house, Ta’aruf. It includes in volume 13 a medium-sized booklet called al-Mihna. Other pamphlets on Shi’ism, Bahth hawlal-Wilaya (Studies on the Wilaya) and Bahth hawlal-Mahdi (Study on the Mahdi), were published separately in Beirut in 1977, but they were written earlier, and perhaps published as prefaces to other authors’ works (see the introduction of Sadr to’Abdallah Fayyad’s Tarikh al-Imamiyya wa Aslafuhum, Beirut, 4th ed., 1973). The contributions on Shi’i history, Dawr al-A’immafil-Hayat al-Islamiyya (The Role of the Imams in Islamic Life), and Ahl al-Bayt, Tanawwu1 Adwar wa Wahdat Hadaf(The Household of the Prophet, Diversity of Roles and Unity of Goal) were lectures given between 1966 and 1969 and posthumously published. Muhammad Baqer as-Sadr wrote also several articles published in various journals. On all these works, see generally my’Religious militancy’. Two other collections can be found in Ikhtarnalak, mentioned above, n. 59, and al-Madrasa al-Islamiyya (The Islamic School), Beirut, 1973. Al-Islam Yaqudal-Hayat (Islam Guides Life) is the title of a series published in 1979, which is a collection of six pamphlets (Beirut, 1980). Three pamphlets deal with the constitution (above, n. 76), and the three others are on economics and banking: Sura’an Iqtisad al-Mujtama1 al-Islami (Picture of the Economics of the Islamic Society); Khutut Tafsiliyya’an Iqtisad al-Mujtama’ al-Islami (Detailed Guidelines to the Economy of the Islamic Society); and Al-Usus al-’Amma lil-Bank fil-Mujtama’ al-Islami (General Bases of a Bank in the Islamic Society), discussed in this volume, chapters 2 and 5.

79 A fuller analysis of the political dimensions and implications of the Najaf Renaissance can be found in various articles which I published in recent years. The following topics related to the Najaf Renaissance are addressed in some detail: the reaction of Najaf to the unification of personal status law by the government of’Abd al-Karim Qasem (‘ Shi’ism and Sunnism in Iraq: revisiting the Codes’, in Mallat and Connors eds., Islamic Family Law, pp. 71-91); the causes of the Iran-Iraq war from the vantage-point of the Najaf-Tehran axis (‘A l’Origine de la Guerre Iran-Irak: l’axe Najaf-Teheran’, Les Cahiers de l’Orient, Paris, Autumn 1986, 119-36); the works of Muhammad Baqer as-Sadr in the mirror of the delicate Sunni-Shi’i controversy in Iraq (‘ Religious militancy in contemporary Iraq’); the general rise of political Islam and the role of Sadr and his companions, as well as the development of the Islamic movement after Sadr’s death (‘Iraq’, in Shireen Hunter ed., The Politics of Islamic Revivalism, pp. 71-87. This is a shortened version of a fuller unpublished study,’Political Islam and the’Ulama in Iraq’, Berkeley, October 1986); the world view of Sadr’s sister (‘Le Feminisme Islamique de Bint al-Houda’); and the role in Lebanese politics of three graduates from Najaf, Muhammad Jawad Mughniyya, Muhammad Mahdi Shamseddin, and Muhammad Husayn Fadlallah (‘Shi’i thought from the South of Lebanon’, Centre for Lebanese Studies Papers, Oxford, April 1988). The reader can also consult a recent study on the larger scene of the Iraqi opposition, of which the Islamic movement is of course part. (The Iraqi Opposition: a Dossier, SOAS, London, 1991. This includes a short article on’Democratic a Bagdad’, Le Monde, 12 February 1991.) For a fuller bibliography on an increasingly well-documented phenomenon, the reader is referred to the works cited in these articles.

80 The fatwa of Muhsin al-Hakim, which was issued in February i960, is reported in O. Spies,’ Urteil des Gross-Mujtahids iiber den Kommunismus’, Die Welt des Islam, 6,1959-1961, pp. 264-5; Murtada Al Yasin’s/ata’a was mentioned above n.39.

81 See this volume, chapter 1.1 worked with Mahdi al-Hakim on the rather unclear picture of the early confrontation between Najaf and Baghdad, but his assassination in February 1988 prevented the completion of fascinating interviews started in the summer of 1987. The present remarks are also the result of close collaboration with Muhammad Bahr al-’Ulum, who has tirelessly given me his time and documentation to lift the veil on modern Iraqi history.

82 Muhammad Baqer as-Sadr, Iqtisaduna, p. 5; Falsafatuna, p. 400.

83 Muhammad Baqer as-Sadr, Risalatuna (Our Message), Tehran, 1982. Original said to have been published fourteen years earlier (1967-8).

84 Bint al-Huda, al-Majmula al-Qasasiyya al-Kamila (The Complete Fiction Collection), 3 vols., Beirut, n.d. (early 1980s). This collection includes also nonfiction works, like her articles in al-Adwa’

85 Al-Majmu’a al-Qasasiyya al-Kamila, vol. 3, p. 181.

86 Ja’far Husayn Nizar,’Adhra’ al-Aqida wal-Madhhab: ash-Shahida Bint al-Huda (The Virgin of Principles: the Martyr Bint al-Huda), Beirut, 1985, p. 33, quoting the article which is published in al-Majmula al-Qasasiyya al-Kamila, vol. 3, pp. 137-9.

87 This information appears in’ as-Sayyed yularrif nafsah (as-Sayyed [Fadlalah] introduces himself)’, al-Alam, London, 13 September 1987, p. 34.

88 See these articles in M. H. Fadlallah, Afaq Islamiyya wa Mawadi’ Ukhra (Islamic Horizons and other Issues), Beirut, 1980.

89 Muhammad Husayn Fadlallah, Adwa’’alal-Adwa’ (Lights on al-Adwa"), in al-Adwa’ 5:2, 1984, p. 168. The new Adwa’ journal, which is printed in Qum, has obviously been named after its illustrious predecessor. Fadlallah’s article was also published as a preface to Sadr’s Risalatuna, pp. 16-17.

90 For details on the collection Min Hadi an-Najaf, see my’Religious militancy’, pp. 719-23; for Hashimi and Hakim,’Political Islam’, pp. 23-40; for Shamseddin,’Shi’i thought’, pp. 25 ff.

91 Conversations with Dr Ahmad Chalabi, a prominent Iraqi businessman, now living in exile in London, winter 1990, and with Dr Muhammad Bahr al-’Ulum.

92 See Nizar az-Zein, Hadith ash-Shahr (Talk of the month), al-Irfan (Sidon), 57:6, October 1969, pp. 888-9; quoted in’Shi’i thought’, p. 14.

93 Muhsin al-Hakim recalled the shouts of the mourners,’ Sayyed Mahdi mujasus, isma’ya rayyes (Sayyed Mahdi is no Spy, Listen O President [Bakr]’, and was still afflicted two decades later for not having been able to attend the funeral of his father. Conversations with Mahdi al-Hakim, London, summer 1987.

Introduction to Part I

1 There were also attempts to carve up smaller or different entities from the existing ones. Israel-Palestine is an example of the brutal coming to existence of a nation-state, and has its own exceptional logic. In the case of some Christian groups in Lebanon vying for a smaller Lebanese’ Marunistan’, the concept was so circumstantially limited that it must be read into the fine print of the declarations of the most extremist leaders. On the concept of Marunistan, see J.Randal, The Tragedy of Lebanon, London, 1983. In the case of the Kurds, the favouring of a Kurdish entity against the fragmentation of the Kurdish people across five nations has been time and again militarily subdued. See a good public law analysis in L. C. Buchheit, Secession: the Legitimacy of Self-Determination, New Haven, 1978, pp. 153-62.

2 On the early forms, M. Kramer, Islam Assembled: the Advent of the Muslim Congresses, New York, 1986; A. Sanhoury [Sanhuri], Le Calif at, Paris, 1926. On the later forms, Saudi style, see R. Schulze, Islamischer Internationalismus in 20.

Jahrhundert; Untersuchungen zur Geschichte der Islamischen Weltliga (Mekka), Leiden, 1990; G. Salame, As-Siyasa al-Kharijiyya as-Sa’udiyya mundhu’‘am 1945 (Saudi Foreign Policy since 1945), Beirut, 1980; (Post-revolutionary) Iranian style, F. Halliday,’Iranian foreign policy since 1979: internationalism and nationalism in the Islamic revolution’, in Cole and Keddie eds., Shi’ism and Social Protest, pp. 88-107. Generally on the modern period, A. Dawisha ed., Islam in Foreign Policy, Cambridge, 1983; J. Piscatori, Islam in a World of Nation-States, Cambridge, 1986.

3 Shaybani (d. 189/804), Sharh Kitab as-Siyar al-Kabir, with comments by Sarakhsi (d. c. 485/1092), S. Munajjid ed., 3 vols., Cairo, 1971. See also S. Mahmassani [Mahmasani],’Les principes de droit international a la lumiere de la doctrine islamique’, Academie de Droit International, Recueil des Cours (The Hague), 117, 1966, 205-328; M. Khadduri, War and Peace in the Law of Islam, Baltimore, 1955.

4 Sadr, Lamha Fiqhiyya, quoted this volume, General introduction, n. 76.

5’ Dossier’, in Cahiers de P Orient, 1988, quoted this volume, General introduction, n. 34-1- Archetypes of Shi’i law

1 In this work, Ja’farism, Twelver or Ithna’ashari Shi’ism, and Imamism are used interchangeably. Technically, the term Ja’farism, after the 6th Imam and most renowned early jurist Ja’far as-Sadeq (d. 148/765), emphasises the legal side of the sect. Imamism is more general, as it may include the Isma’ilis, who believe in the specificity of seven, as opposed to the Twelve Imams of the largest Shi’i sect, and the Zaydis. Ithna’asharism is predominant among Shi’is in Iran, Iraq, Lebanon, Pakistan, India, and parts of East Africa. For all these terms, see q.v. Encyclopaedia of Islam, Leiden, 1st edn, 1913-38, 2nd edn, i960 ff.; also E.

Kohlberg,’From Imamiyya to Ithna’ashariyya’, Bulletin of the School of Oriental and African Studies, 39, 1976, 521-34. See on sects generally, H. Laoust, Les Schismes dans L’Islam, Paris, 1965.

2 A. Newman, The Development and Political Significance of the Rationalist (Usuli) and Traditionalist (Akhbari) School in Imami Shili History from the third / ninth to the tenth/sixteenth Century A. D., Ph.D. thesis, 2 vols., University of California at Los Angeles, 1986.

3 J. Cole,’ Shi’i clerics in Iraq and Iran 1722-1780: the Akhbari-Usuli controversy reconsidered’, Iranian Studies, 18:1, 1985, 3-34.

4 Muhammad Baqir Ibn Muhammad Akmal al-Behbehani, known as al-Wahid al-Behbehani (d. 1205/1791), author of al-Fawa’ed al-Ha’iriyya, MS mentioned in Agha Buzurg at-Tihrani, adh-Dhari’a ila Tasanif ash-Shi’a, 3rd edn, Beirut, n.d., vol. 16, p. 331. See also H. M. Mudarrisi, An Introduction to Shi’i Law, PP-55—7; G. Scarcia,’Intorno alle controversie tra ahbari e usuli presso gli imamiti di Persia’, Rivista degli Studi Orientali, 33, 1958, 211-50.

5 Faraj al-’Umrani, al-Usuliyyun wal-Akhbariyyun Firqa Wahida (Usulis and Akhbaris are One and the Same [Sect]), quoted in Muhammad Bahr al-’Ulum, al-Akhbariyya, Usuluha wa Tatawwuruha, (The Akhbariyya, Principles and Development), MS kindly provided by the author, 1988. [Hereinafter quoted as Bahr al-’Ulum, MS 1988], p. 1 n. 3; see also n. 9, below; Muhammad Baqer as-Sadr, al-Ma’alim al-Jadida, pp. 76-89.

6 The scholarship of the Bahr al-’Ulum family goes back several generations.

Among the most famous’ulama was Muhammad ibn Taqi ibn Rida ibn Mahdi at-Tabataba’i, known as Bahr al-’Ulum, author of Bulghat al-Faqih (Thefaqih’s summum), who died in 1326/1908. Further see references in Agha Buzurg at-Tihrani, adh-Dharila, vol. 3, p. 148.

7 See this volume General introduction, p. 16 and note 79.

8 Muhammad Bahr al-’Ulum, Uyub al-Irada; The thesis was submitted at Cairo University in 1980.

9 Muhammad Bahr al-’Ulum,’ad-dirasa fin-najaf wa tatawwuruha’ (Studies in Najaf and their development), in J. Khalili ed., Mausulat al-Atabat al-Muqaddasa, vol.2, Beirut, 1964 [hereinafter Dirasa 1964]; Bahr al-’Ulum, al-Ijtihad, Beirut, 1977 [hereinafter Ijtihad 1977]; Bahr al-’Ulum, MS 1988, above n.5.

10 According to some reports, Astarabadi died in Mecca in 1026/1617, in 1033/1623 in others. Muhammad Bahr al-’Ulum, Dirasa 1964, p. 64. Yusuf al-Bahrani (d.

11 86/1772), Lu’lu’at al-Bahrayn, Najaf, 1966, p. 119.

11 ’Akhbari salb’ Bahrani, Lu’lu’at, p. 117.

12 See now W. Hallaq,’The development of logical structure’.

13 Bahr al-’Ulum, Dirasa 1964, p. 65.

14 Ibid. This account also suggests that the emergence and early rise of Akhbarism is rooted in the more general debate between Sunnism and Shi’ism. Akhbarism was a reaction to the imitation in Shi’i usul of the earlier and by then established Sunni discipline. The Akhbari school came to reinstitute the distinctiveness of Shi’ism by introducing literalism in the Shi’i legal system through a narrow and exclusive interpretation of the Shi’i hadith.

15’ The four books’ of Shi’i hadith (which are hadith of the Prophet as well as of the Twelve Imams) are Kulayni’s (d. 329/941) Kafi; Ibn Babawayh al-Qummi, known as as-Saduq (d. 381/991), Man la-Yahdaruhu al-Faqih; Muhammad Ibn Hasan at-Tusi, known as Shaykh at-Ta’ifa (the community’s shaykh), d. 460/1067, Tahdhib al-Ahkam; and by Tusi also, al-Istibsar.

16 Kulayni (d. 329/941) presents laql in the following passage of his Kitab al-aql wal-Jahl (Book of Reason and Ignorance):’ [The angel] Gabriel came to Adam and said to him: O Adam, I was ordered to offer you a choice of one of three.

Adam said: what are the three? Gabriel said: reason Caql), circumspection (haya1) and religion (din). Adam said: I choose reason’, al-Usul minal-Jami’ al-Kafi (Rules of the Sufficient Compendium), 1, n.p., n.d., pp. 6-7.

17 The general differences and the more detailed twenty-nine legal differences presented by the Shi’i jurist appear in charts. See details in Bahr al-’Ulum, Dirasa 1964, pp. 64-71; Yusuf al-Bahrani, in al-Hada’eq an-Nadira, 2nd ed. Beirut, 1405/1985,1, p. 167, mentions that’Abdallah ibn Saleh al-Bahrani listed up to forty-three differences in his book Munyat al-Mumarisin. See also charts drawn after Khwansari’s Rawdat al-Jannat, in M. Momen, An Introduction to Shi’i Islam, New Haven, 1985, pp. 222-5.

18 Sunni hadith has been categorised by S. Mahmasani as sahih, hasan, da1 if, (strong, good, weak), as well as sahih, hasan,gharib (strange). See respectively his Al-Awda’ at-Tashriliyya fid-Duwal al-arabiyya Madiha wa Hadiruha (Legal Systems in the Arab States, Past and Present), Beirut, 1957, p. 128; Falsafat at-Tashri1 fil-Islam (Philosophy of Jurisprudence in Islam), Beirut, 1946, p. 123. The late Subhi as-Saleh has adopted a general division between sahih and da’if, although he recognised, following Ibn as-Salah (d. 676/1277), the possibility of’more than sixty-five categories of hadith’.’Ulum al-Hadith wa Mustalahuhu (The Sciences and Terminology of hadith), 2nd edn, Damascus, 1963.

19 Al-Ijtihad, quoted above n.9.

20 Muhammad Bahr al-’Ulum, Ijtihad 1977, pp. 168-83.

21 Ibid., p. 170.

22 On the importance of this distinction see in comparison the present debate in Iran, this volume, chapter 3, as well as the comments related to the discretionary area of the Islamic ruler in Muhammad Baqer as-Sadr, Iqtisaduna, this volume, chapter 4.

23 Astarabadi, al-Fawa’ed al-Madaniyya, pp. 47-8, quoted in Muhammad Bahr al-’Ulum, Ijtihad 1977, p. 172. See on al-Fawa’ed al-Madaniyya Agha Buzurg at-Tihrani, adh-Dhari’a, vol. 16, p. 358.

24 Bahr al-’Ulum, Ijtihad 1977, p. 173.

25 Yusuf al-Bahrani’s moderation is best expressed in the’twelfth introduction’ to his compendium, al-Hada’eq an-Nadira, above n.17, pp. 167-70, in which he admits having first been closer to the Akhbaris: however,’what [the polemists in the two schools] have mentioned in terms of differences is in the most, if not in totality, unfruitful (layuthmir farqan fil-maqam)’, p. 167.

26 Bahr al-’Ulum, Ijtihad 1977, pp. 173-81.

27 Bahr al-’Ulum, MS 1988, quoted above n. 5.

28 Ibid., p. 18; see also Ijtihad 1977, p. 183.

29 Bahr al-’Ulum, MS 1988, p. 17.

30 Muhammad Rida al-Muzaffar, Usul al-Fiqh, rpt al-Qutayf, n.d., vol. 11, p. 105.

31 Bahr al-’Ulum, MS 1988, p. 17.

32 The implications of this reading of ijma1 are far-reaching both for the general approach to Islamic law and for the received idea on the Usuli school. In terms of general Islamic law, it tends to undermine the idea of the’four sources of the law’ by simply subsuming ijma1 under the Sunna. With the imprecision of the concept of Sunna, this means that the whole system generally attributed as a specificity of the shari’a should come under new scrutiny. It is perhaps time to start questioning such received ideas as’the sources of Islamic law’, which reinforce the premises of’stagnation’ as a characteristic of the shari’a.

33 Muhammad Taqi al-Hakim, al-Usul al-’Amma lil-Fiqh al-Muqaran (The General Bases of Comparative Jurisprudence), Beirut, 1963, p. 299.

34 Bahr al-’Ulum, MS 1988, p. 17.

35 Vide especially Bahr al-’Ulum, Ijtihad 1977, p. 177.

36 Bahr al-’Ulum, MS 1988, p. 17.

37’Inna al-faqih al-akhbari mujtahid duna an yusarrih bi-dhalik’, Ijtihad 1977, p. 182.

38 See now the criticism of W. Hallaq,’Was the Gate of Ijtihad ever closed?’, International Journal of Middle Eastern Studies, 1984, 1-33; (originally as Ph.D.

Thesis, University of Washington, Seattle, 1983);’On the origins of the controversy about the existence of mujtahids and the gate of ijtihad’, Studia Islamica, 63, 1986, 129-42.

39 The works of Cole and Newman have unveiled some social dimensions concerning the controversy between Akhbarism and Usulism, but the evidence is understandably elusive. I am not aware of any work that carried the contribution of Hallaq on the myth of the closing of bob al-ijtihad further. There is a telltale absence of such a concept in the masterly works of Goldziher (esp.

Muhammadenische Studien, 2 vols., Halle, 1889-90, and Vorlesungen uber den Islam, Heidelberg, 1910). This absence suggests that the concept took root in the West sometime after the death of the great scholar. It is probable that the myth also started being established in the Muslim world at the same period. More research in the field might cast new light on interesting strands in Islamic law and Orientalism on the one hand: why was it convenient for Western scholarship to insist that the shari’a had been static since the tenth century ?; and, on the other hand, Islamic law and gharbzadegi (the’ Occidentosis’ portrayed by Jalal Al-e Ahmad): why have Muslim jurists found it convenient to accept and repeat the idea?

It is noteworthy that the idea of an ijtihad being barred at some point in history was never invoked in the case of Ja’fari law.

40 The young Sadr was often chosen to deliver sermons and prayers on the occasion of the husayni pageants at the celebrations of Karbala. Ha’iri,’ Tarjamat", p. 41.

41 See this volume, pp. 7-19 and bibliography.

42 The concept of civil society has increasingly been used in the Middle East to depict that part of social organization(s) which is not directly associated with state authorities, and for which some spaces of democratic processes seem to operate by default. The more the state apparatus tends to be authoritarian and generally disrespectful of human rights or proper electoral representation, the more’mechanisms’ of civil society seem to offer a democratic counterpoint.

‘Civil society’ appeared as a developed concept first in the 1830s in Hegel’s Philosophy of Right. The concept is helpful in the Middle East contemporary context to depict’ a new reflection of what resists in society, on the reserves of inertia and opacity which a society in crisis opposes to the actions -and acquired knowledge -of these actors’. This definition appears in the sophisticated Summa of Robert Fossaert, La Societe, (six volumes published in Paris since 1977). In its peculiar independence from state power,’Shi’i civil society’ in twentiethcentury Iraq fits well the characteristics Fossaert gives in volume 5 (Les Etats) on’ Les formes de la Societe Civile’:’ A contrario, will be considered as pertaining to Civil Society all the elements of social organization which are or seem independent from the State, and even those which seem to enjoy sufficient autonomy vis a vis the State ...’ (R. Fossaert, Les Etats, Paris, 1981, p. 137 and pp. 152-3. Emphasis in original.)

43 Ha’iri,’ Tarjamat’, p. 52.

44 On the 1948 revolt (the wathba) and the execution of Fahd, see Batatu, The Old Social Classes, pp. 545-71; the rise of the Communists at the expense of the Shi’i mujtahids was manifest in the last great revolt against the monarchy before the 1958 coup, which took place in Najaf in 1956. On this revolt, Batatu, pp. 749-57, esp. p. 752:’A number of factors contributed to the strength of the Communists at Najaf, the holiest city of the Shi’ah. For one thing, Najaf was still, as it had been for centuries, the seat of oppressive wealth and dire poverty. For another, Najaf was and remains at one and the same time a center for the most stubborn religious traditionalism and a ferment for the most advanced of revolutionary ideas.’ 45 See this volume, General introduction, n. 46 and accompanying text. Al-Muthul al-’Ulya fil-Islam la fi Bhamdun (The Supreme Values are in Islam, not in Bhamdun) was written in answer to an invitation organised by an American proselytiser to a number of religious dignitaries to counter the’materialist’ message disseminated by Communism in the Middle East. The pamphlet, which dates from 1954, was republished in Tehran in 1983.

46 Sadr, Fadak fit-Tarikh (1955). See General introduction, and’Religious militancy’, pp. 712-15.

47 Sadr, Falsafatuna (1959). See General introduction.

48 Details on Sadr’s works in usul in General introduction.

49 See generally E. Honigmann,’ al-Nadjaf’, Encyclopaedia of Islam, 1 st ed., Leiden 1936, in, pp. 815-16; J. Mahbuba, Madi an-Najafwa Hadiruha (Najaf Past and Present), Najaf, 3 vols., 1955-8, especially vol. 1; Khalili ed., Mausu’at, quoted this volume, General introduction n. 52.

50 J. Abu Lughod, Cairo: 1001 Years of the City Victorious, Princeton, 1971.

51 On the history of al-Azhar, see e.g. Al-Azhar, Tarikhuhu wa Tatawwuruhu (The Azhar: its History and Development), Cairo, 1964; B. Dodge, A Millennium of Muslim Learning, Washington, 1961; A. Chris Eccel, Egypt, Islam and Social Change: al-Azhar in Conflict and Accommodation, Berlin, 1984.

52 See the complaints of another Lebanese graduate from Najaf, Muhammad Jawad Mughniyya,’An-najaf fi alf lam’ (Najaf over a Millennium), in Min Huna wa Hunak (From Here and There), Beirut, n.d., pp. 48-50 (originally published in Najaf in 1957).

53 The difference between learning at Najaf and at a Western University will appear more evident in this section. It is interesting however to note that Najaf graduates, like Muhammad Mahdi Shamseddin, presented themselves as part of’the University of Najaf (jami’at an-najaf). See Shamseddin, Nazam al-Hukm wal-Idara fil-Islam (The System of Governance and Administration in Islam), Beirut, 1955, cover page. See also in next footnote the texts of Muzaffar and Faqih.

54 Descriptions of Najaf and its curriculum can be found in F. Jamali,’The theological colleges of Najaf’, The Muslim World, 50, i960, pp. 15-22. (This outsider account was written by an erstwhile Shi’i Prime Minister of Iraq) [hereinafter Jamali]; Muhammad Rida al-Muzaffar (d. 1964),’Jami’at an-najaf al-ashraf wa jami’iat al-qarawiyyin’ (The University of Holy Najaf and the University at Qarawiyyin [Fes, Morocco]), Majallat al-Majmal al-Ilmi (Baghdad), 1964, pp. 293-301 (this report by a scholar versed in usul was read to a Moroccan audience) [hereinafter Muzaffar]; Muhammad Mahdi al-Asifi (one of the leaders of the Islamic opposition), Madrasat an-Najaf wa Tatawwur al-Haraka al-Islamiyya fiha (The School of Najaf and the Development of the Islamic Movement), Najaf, 1964; Mughniyya,’An-najaf fi alf’am’; but the two most detailed analyses are Muhammad Taqi al-Faqih, Jamilat an-Najaf fi Asriha al-Hadir (The University of Najaf in the Present Era), Tyre, Lebanon, n.d.

[hereinafter Faqih. This work is difficult to date with precision, because parts of it were written at different periods. The bulk dates probably from the 1940s];

and Muhammad Bahr al-’Ulum, Dirasa 1964, quoted above n. 9.

Traces of criticism of old-fashioned style and content in the Najaf system can be detected in the description of Jamali, but there is a remarkable instance of such criticism as late as 1970. See’Ali az-Zein,’ Adzva’’‘ alal-madares ad-diniyya finnajaf (Lights on the Religious Schools of Najaf), al-’Irfan (Sidon), 58:3-4, 1970, pp. 307-17. For the curriculum and the colleges in Iran, compare the remarkable study of an apprentice-Mujtahid’s upbringing in R. Mottahedeh, The Mantle of the Prophet: Learning and Power in Modern Iran, London, 1986; M. Fisher, Iran: From Religious Dispute to Revolution, Cambridge, Mass., 1980, pp. 12-104.

55 Muzaffar, p. 296, Bahr al-’Ulum, Dirasa 1964, p. 83; but contrast Jamali, p. 15, who puts the figure at 1954 students, of whom 326 Iraqis only, 896 Iranians, 47 from Lebanon and Syria, 665 from South Asia. In contrast, Batatu notes, there were some 6,000 students at Najaf in 1918. Batatu,’Iraq’s underground Shi’a movements’, p. 582. Since the definition of a’student’ of Najaf is rather mercurial, as will be seen in this section, the precision of any census cannot be ascertained.

56 Muhammad Jawad Mughniyya, Tajarib (Trials), Beirut, 1980, p. 61.

57 Bahr al-’Ulum, Dirasa 1964, p. 83.

58 For revenues of the’ulama in Shi’i law, see this volume, p. 44; the poverty of many mujtahids is related in Jamali, p. 18; at the highest echelons of the Shi’i hierarchy, however, money does not seem to have been a serious problem, especially since the 1960s and the support of many merchants for the’ulama’s role in containing communism. Mahdi al-Hakim told me how ridiculous the charge of his embezzlement with CIA funds had appeared in 1969, in view of the means at the disposal of his father Ayat Allah Muhsin al-Hakim. The charge for embezzlement was for a paltry 50,000 Lebanese pounds (then the equivalent of some 20,000 US dollars)! This remark gives an idea, a contrario, of the scale of cash revenues available to the great mujtahids.

59 A remarkable case history of the turbulences in eighteenth-century Iraq can be found in R. Olson, The Siege of Mosul and Ottoman-Persian Relations 1718-1843, Bloomington, Indiana, 1975.

60 Faqih, above, n. 54.

61 Bahr al-’Ulum, Dirasa 1964, p. 92.

62 See Jamali, p. 16.

63 The following section is based on Bahr al-’Ulum, Dirasa 1964, pp. 92-100;

Muzaffar, pp. 297-300; Faqih, pp. 105-18.

64 Muzaffar, p. 297.

65 Ibid., p. 299.

66 Bahr al-’Ulum, Dirasa 1964, p. 92.

67 Sadr, al-Ma’alem al-Jadida, quoted in General Introduction, n. 48.

68 Bahr al-’Ulum, Dirasa 1964, p. 95.

69 Faqih, p. 107.

70 Muhammad Taqi al-Hakim, al-Usul al-’Amma, quoted above, n. 33.

71 Faqih, p. i n .

72 Ibid.s p. 114.

73 Ibid., p. 115.

74 Bahr al-’Ulum, Dirasa 1964, p. 98.

75 Ibid., p. 99; Faqih, pp. 116-17.

76 See Faqih, section entitled’shahadat jami’at an-najaf (The Diploma of the University of Najaf), pp. 119-30, 146-54.

77 Ibid., p. 120.

78 Ibid., p. 146.

79 Ibid., p. 147.

80 Ibid., p. 148.

81 Ibid., p. 147.

82 Ibid., p. 149.

83 Ibid., p. 150.

84 Ibid., pp. 151-4.

85 Abul-Qasem al-Khu’i, al-Masa’el al-Muntakhaba, p. 2 [hereinafter Masa’el].

This work is an abridged version authorised by Ay at Allah al-Khu’i, who resides in Najaf to date. Khu’i has always steered away from politics, and his testimony shows the degree of consensus on the institutional structure of Shi’i civil society among both activist and quietist mujtahids.

86 Khu’i, Masa’el, pp. 2-3. On a case of ihtyat, see an example in the quotation of Sadr, n. 43 above.

87 On khums, see the treatise of Muhammad Hadi al-Milani, Muhadarat fi-Fiqh al-Imamiyya, Kitab al-Khums (Lectures in Imami Jurisprudence, the Book of khums), F. Milani ed., n.p., 1400/1800; N. Calder,’Khums in Imami Shi’i jurisprudence, from the tenth to the sixteenth century AD’, BSOAS, 45, 1982, PP-39-47-88 H. Algar mentions that in nineteenth-century Iran’ prominent mujtahids did not hesitate to use coercion’ for the collection of taxes, Religion and State in Iran, 1785-1906, Berkeley, 1969, p. 12.

89 With the constraints of Ba’thist rule in Baghdad, the pendulum has shifted again towards Qum and Mashhad, but more perspective is needed to judge the rise and fall of the standards of legal scholarship in Iran and Iraq. Political events will no doubt have a decisive impact on the curriculum and role of the educational institutions in both countries.

90 In his general theory of society, Fossaert writes quite pointedly about this phenomenon in Iran. To’understand the complexities of the relationship between the State and Civil Society it is important to avoid identifying at all times and in all places religious order and established political order. The Shi’i mullahs have once again demonstrated this point, in Iran between 1976 and 1979, even if they would thereafter try to convert their religious order into a new political order.’ R. Fossaert, La Societe, vol.5, P-l 67.

91 See a veiled criticism by Muhammad Baqer as-Sadr of the limits of the risala’amaliyya, in Khutut Tafsilyya’an Iqtisad al-Mujtama’ al-hlami (Detailed Guidelines of the Economy of an Islamic Society), Beirut, 1979, p. 12; see also this volume, General introduction, p. 13.

92 Muhammad Husayn Kashif al-Ghita’, Asl ash-Shi’a wa Usuluha (The Origin and Principles of Shi’ism), original edition in the 1930s, translated in Pakistan in 1982 as Shi1 a: Origin and Faith.

93 All three books of Kashif al-Ghita’ were printed several times in Iraq, Lebanon, Iran and Pakistan.

94 Quoted above, n. 53.

95 Muhammad Husayn Kashif al-Ghita’, Tahrir al-Majalla, (Comment on the Majalla), Najaf, c. 1940, I, p. 3.

96 Ibid., p. 4.

97 Ibid., 11, p. 326.

98 The fact that Tahrir al-Majalla was disregarded by the Iraqi codiners is surprising. No doubt the sojourn of’Abd ar-Razzaq as-Sanhuri as Dean of the Baghdad law school and the dominant pan-Arabist trend at the time made the Egyptian influence prevalent.

99 In the most richly documented biography of Khumaini, there is only one mention of Muhammad Baqer as-Sadr, and the context is one of rivalry over the supreme marja’iyya. This is when Khumaini wrote a particularly disheartening letter to his son Ahmad. The text of the letter appears in H. Ruhani, Nehzat-e Imam Khumaini (The Movement of Imam Khumaini), Tehran, 1364/1985 (earlier ed., Qum, 1977), 11, pp. 568-9. This letter is dated 28 Shawwal 1390 (27 December 1970).

100 A. Taheri, Khomeiny, Paris, 1985, p. 163.

101 For details on this period, see Mallat,’Religious militancy’ and’Political Islam’.

102 O. Bengio,’ Shi’s and politics in Ba’thi Iraq’, Middle Eastern Studies, 1985, p. 2.

Also P. Marr, The Modern History of Iraq, Boulder, Co, 1985, pp. 228-30; P.

Sluglett and M. Farouk-Sluglett, Iraq since 1958’.from Revolution to Dictatorship, London, 1987, pp. 198, 208.

103 Ha’iri,’ Tarjamat’, p. 117. I was not able to find the exact date of the telegram, which was aired on the Arabic program of Radio Tehran. There is also no record of Sadr’s request to seek refuge in Iran. This gap has fuelled several rumours as to the exact sequence of events.

104 Ha’iri,’ Tarjamat’, p. 123.

105’Imam Khomeini’s message’, quoted this volume, General introduction, n. 29.

106 See’Ali al-Wardi, Tarikh al-’Iraq al-Hadith (History of Modern Iraq), vol.6, Min’Am 1920 ila’Am 1924 (from 1920 to 1924), Baghdad, 1976, p. 251. See also P.

Sluglett, Britain in Iraq 1914-1932, London, 1976, pp. 300-16.

107 This is a well-known episode in the Shi’i hierarchy. It was matched recently by the’downgrading’ of Husain Muntazeri from Ay at Allah to Hujjat al-Islam.

108 To this could be added other examples of the’war of the titles’, such as the sudden upgrading of the (relatively) young Hujjat al-hlam Khamene’i to the rank of Ayat Allah by the Iranian Assembly of Experts in June 1989.

109 It is not a wanton speculation to trace part of Khumaini’s obduracy to continue the war beyond the liberation of Iranian territory in 1982 in terms of a posthumous debt to Muhammad Baqer as-Sadr. On the connection in general between the war and the Shi’i International from a Clausewitzian perspective, see my’Aux Origines’.

n o Batatu, The Old Social Classes, p. 49.

i n Compare the superb description of a similar phenomenon in the European Renaissance in Lucien Febvre, Le Probleme de l’Incroyance au Seizieme Siecle, Paris, 1947, pp. 19-104:’Les bons camarades’.

112 Muhammad Jawad Mughniyya, al-Islam wal-’aql (Islam and Reason), Beirut, 1967, p. 230.

113 Khu’i, Masa’el, p. 3.

114 Ibid., p. 2.

115 Ibid., p. 3. In Khumaini’s Tahrir al-Wasila, 1, pp. 3-8, there is no mention of this difference, but a hierarchy is established at the top of the pyramid, with the definition of the marjai as the’most competent mujtahid’.

116 Faqih, pp. 130-40.

117 Ibid., p. 131.

118 The list is traditional. See e.g. Mawardi (d. 450/1058), al-Ahkam as-Sultaniyya (Sultanic Rules), Cairo, 2nd edn, 1966, pp. 5-6, quoted in A. Lambton, State and Government in Medieval Islam, London, 1981, pp. 89-90.

119 Faqih, p. 131.

120 Ibid.3 p. 132.

121 Ibid., p. 133.

122 Ibid.

123 Ibid., p. 136.

2- On the origins of the Iranian constitution: Muhammad Baqer as-Sadr’s 1979 treatises

1 There is now an important literature on these lectures. Among the best studies are G. Rose,’ Velayat-e Faqih and the recovery of Islamic identity in the thought of Ayatollah Khomeini’, in N. Keddie ed., Religion and Politics in Iran, New Haven, 1983, pp. 166-88; H. Enayat,’Iran: Khumayni’s concept of the "Guardianship of the Jurisconsult’", in J. Piscatori ed., Islam and the Political Process, Cambridge, 1982, pp. 160-80; S. Zubaida,’The ideological conditions for Khomeini’s doctrine of government’, Economy and Society, n :2, 1982; see also Zubaida, Islam, the People and the State, London, 1989, and my review in Middle East Reports, 21 3 , May/June 1991,46; K. H. Gobel, Moderne Shiitische Politik und Staatsidee, Leske, 1984. Norman Calder has published a study comparing Khumaini’s thought on the ‘ulama and the state in his jurisprudential work Kitab al-Buyu’ with classical works in Shi’i law, particularly Murtada Ansari’s (d. 1281/1864) Kitab al-Makasib. N. Calder,’Accommodation and revolution in Imami Shi’i jurisprudence: Khumayni and the classical tradition’, Middle East Studies, 18, 1982. Khumaini’s lectures were delivered in Najaf between 21 January and 8 February, 1970 and collected from student notes to be published in Persian in 1971. This collection was translated by H. Algar as’Islam and Government’, and published in Imam Khomeini, Islam and Revolution, Berkeley, 1981, pp. 27-151. There are two Arabic editions, published in Beirut in 1979. According to Rose, mentioning Ahmad Khumaini, the original was in Arabic. We have used here al-Hukuma al-Islamiyya (Islamic Government), published by Dar at-Tali’a in Beirut, Velayat-e Faqih (Persian version), Tehran, I357/I979J as well as Algar’s English version. They are respectively quoted hereafter as Khumaini, Hukuma, Khumaini, Velayat, and Khumaini, Government.

2 On the early Iraqi parliament, see Muhammad Muzaffar al-Adhami, Political Aspects of the Iraqi Parliament and Election Processes 1920-1932, Ph.D. Thesis, London, 1978; see also E. Kedourie,’The Kingdom of Iraq: a retrospect’, in The Chatham House Version, London, 1970, pp. 250, 265.

3 Batatu, Old Social Classes, p. 1146.

4 See Muhammad Rashid Rida on the role of the ‘ulama at the time of the collapse of the Caliphate in the early 1920s, in his al-Khilafa wal-Imama al-Uzma (The Caliphate and the Great Leadership), Cairo, 1923. An early example in Egypt of the opposition of some ‘ulama to Napoleon’s invasion is documented in A. Loutfi el-Sayed,’The role of the’ulama in Egypt during the early nineteenth century’, in P. M. Holt ed., Political and Social Change in Modern Egypt, London, 1968, pp. 270-4. Compare E. Said on the accommodationist’ulama, Orientalism, London, 1978, p. 82.

5 Khumaini, Hukuma, pp. 8-9; Velayat, p. 8; Government, p. 28.

6 Khumaini, Hukuma, p. 20; Velayat, p. 23; Government, p. 37.

7 H. Algar, Religion and State, pp. 205-21; N. Keddie, Religion and Rebellion in Iran: the Tobacco Protest of 1891-1892, London, 1966.

8 See the recent book by Vanessa Martin, Islam and Modernism: the Iranian Revolution of 1906, London, 1989.

9 This volume, books mentioned in the General introduction, n .41; see also’Abd ar-Razzaq al-Hasani, ath-Thawra al-Iraqiyya al-Kubra (The Great Iraqi Revolt), 3rd edn, Saida, 1972; A. Rihani, Muluk al-’Arab (The Kings of the Arabs), Beirut, 2nd edn, 1929, vol. 2, p. 329.

10 There is a vast literature on these constitutional bodies. The best comparative work is Mauro Cappelletti’s. See e.g. his’ Who watches the watchmen’, American Journal of Comparative Law, 31,1983, p. 1. This article, and other studies, were collected recently in M. Cappelletti, The Judicial Process in Comparative Perspective, Oxford, 1989. Compare A. Lambton,’Quis custodiet custodes?

some reflections on the Persian theory of government’, Studia Islamica, 5,1955, 125-48; 6, 1956, 125-46. See further chapter 3, this volume.

11 Khumaini, Hukuma, p. 10; Velayat, p. 11; Government, p. 31.

12 Khumaini, Hukuma, p. 50; Velayat, p. 64; Government, p. 62.

13 Khumaini, Hukuma, p. 46. The Persian and English versions are slightly different. See Khumaini, Velayat, p. 60. Algar’s translation reads:’If the ruler adheres to Islam, he must necessarily submit to the faqih, asking him about the laws and ordinances of Islam in order to implement them. This being the case, the true rulers are the fuqaha themselves, and rulership ought officially to be theirs, to apply to them, not to those who are obliged to follow the guidance of the fuqaha on account of their own ignorance of the law.’ Government, p. 60.

14’ Idha ra’ayta al-fuqaha’ lala abwab as-salatin, fa-bi’sa la-fuqaha’ wa bi’sa assalatin;

wa idha ra’ayta as-salatin’ala abwab al-fuqaha’’ fa-ni’ma al-fuqaha’ wanilma as-salatin’, aphorism attributed to Mirza Muhammad Hasan ash-Shirazi, the leader of the Tobacco Revolt.

15 Ayat Allah Mahmud Taliqani (d. 1979)3 who was second in political prominence only to Khumaini, wrote two significant contributions to the constitutional debate in Iran. The first contribution was in the form of the publication of Ayat Allah Muhammad Husayn Na’ini, Tanbih al-Umma wa Tanzih al-Milla:

Hukumat az Nazar-i Islam, Tehran, 1955 (original 1909). On this work by Na’ini, see the detailed study of A. Hairi, Shi’ism and Constitutionalism in Iran, Leiden, 1977. The second contribution appears in his article in the important collective Bahthi dar Baray-e Marja’iyyat va Ruhaniyyat (Studies on Marjaiyyaa and Spirituality), Tehran, 1963, pp. 199-211. On Bahthi, see A. Lambton,’a reconsideration of the position of the marja1 al-taqlid and the religious institution’, Studia Islamica, 20, 1964, 115-35. On Taliqani in general, see M.

Bayat,’Mahmud Taleqani and the Iranian revolution’, in M. Kramer ed., Shi’ism, Resistance and Revolution, Boulder Co., 1987, pp. 67-94.

16 Muhammad Baqer as-Sadr, Lamha Fiqhiyya, quoted this volume, General introduction, n. 76.

17 Qur’an, 42:38: wa amrukum shura baynakum (your affairs must be decided amongst yourselves by consultation).

18 Khumaini, Hukuma, pp. 103-4. The quote is in Arabic in Velayat, p. 146;

Government, p. 109.

19 See’Kitab al-amr bil-malruf wan-nahi’an al-munkar’ (The Book of Enjoining Good and Forbidding Evil) [in reference to Qur’an, 3:104,114; 7:157; 22:41;

31:17], in Ruhullah al-Khumaini, Tahrir al-Wasila, 2nd ed., Beirut, 1985, 1, pp. 424-44; and the line by line commentary by A. Mutahhari, Mustanad Tahrir al-Wasila, Qum, 1403/1983.

20 There is a gap in our knowledge of the development of Sadr’s constitutional thought. The work on Mujtama’una (Our Society), promised as a sequel to Iqtisaduna and Falsafatuna, was probably never written. Until 1979, the strictly political-constitutional thought of Sadr must be collated from his works on history (Fadak, Ahl al-Bayt, Dawr al-A’imma), and on fiqh (al-Fatawa al-Wadiha). The articles published as editorials in the journal al-Adwa’ and collected in Risalatuna do not give a systematic view on his thought. (All references mentioned this volume, General introduction, pp. 7-19). There is no doubt, however, that Sadr must have devoted considerable reflection to the constitutional structure of the Islamic state, and traces of it can be found in’Izz ad-Din Salim,’ Ash-shahid as-Sadr, ra’ed harakat at-taghyir fil-umma’ (Martyr as-Sadr, leader of the movement for change in the nation), Tawhid, 27, 1407/1987, pp. 25-39. The late Mahdi al-Hakim told me of constitutional blueprints by Sadr in the early 1960s, but his untimely death has prevented any further elaboration on the formation of young Sadr’s constitutional thought.

21 Muhammad Baqer as-Sadr, Manabi1 al-Qudra, quoted in General introduction, n. 76.

22 Muhammad Baqer as-Sadr, Khilafat al-Insan, quoted in General introduction, n. 76. [hereinafter Khilafat]

23 Translation of A. Yusuf Ali, The Holy Qur’an, Lahore, 1934.

24 The cause of revelation of Qur’an 5:44 is related in early tafsirs. See e.g. Tabari (d. 310/923), Tafsir, Cairo, n.d., vol. 10, pp. 338-40. On the’cause of revelation’ genre, see A. Rippin,’The exegetical genre Asbab al-Nuzul: a bibliographical and terminological survey’, BSOAS, 48, 1985, 1-15.

25 The word shahada carries several meanings. It is both testimony and martyrdom (and it means also, as discussed in chapter 1, diploma). For a’revolutionary’ elaboration, see Mahmud Taliqani, Jihad va Shahadat (Jihad and shahada), Tehran, 1963, translated by R. Campbell, and annotated by H. Algar, in Mahmud Taleghani, Society and Economics in Islam, Berkeley, 1982, pp. 75-105, especially at p. 99.

26 Sadr, Khilafat, p. 24.

27 Muhammad Rashid Rida, Tof sir al-Qur’an al-Karim ash-Shahir bi-Tafsir al-Manar (Interpretation of the Qur’an known as the Interpretation of the Manar), Cairo, 3rd edn 1367/1947, vi, pp. 397-8.

28 Sayyid Qutb, Fi Zilal al-Qur’an (In the Shades of the Qur’an), Beirut, new edn, 1973, 11, p. 887. For a recent analysis of the Zilal, and a comparison with the Manar, O. Carre, Mystique et Politique, Lecture Re’volutionnaire du Cor an par Sayyid Qutb, Frere Musulman Radical, Paris, 1984.

29 Qutb, 11, p. 897.

30 On these characters, see the studies of R. Mitchell, The Society of the Muslim Brothers, Oxford, 1969; G. Kepel, Le Prophete et le Pharaon, Paris, 1984.

31 Muhammad Husayn Tabataba’i, al-Mizanfi Tafsir al-Qur’an (The Balance in the Interpretation of the Qur’an), Beirut, 1970.

32 Muhammad al-Husayni ash-Shirazi, Taqrib al-Qur’an ilal-Adhhan (Bringing the Qur’an Closer to the Mind), Beirut, 1980.

33 Shirazi, vi, p. 91.

34 Ibid., p. 92.

35 Tabataba’i, vi, p. 366.

36 Ibid., p. 363.

37 Emphasis supplied.

38 Tabataba’i, vi, p. 362.

39 See also his reference to the Shi’i concept of’ismat, infallibility, id., p. 362.

Muhammad Baqer as-Sadr has an interesting definition of’ismat, which differs from the classical equation of the word with the Twelve Imams’ sanctity from sin and error. It is metaphorically depicted in his Ahl al-Bayt as’the expression of [the Imams’] total permeation by the Message [of Islam], and their embodiment of all the elements of this Message in the spiritual, intellectual, and mental [realms]’, Ahl-al-Bayt, quoted at n. 78 of General introduction, p. 74.

40 Tabataba’i, vi, pp. 356-366.

41 Ibid., pp. 350-6.

42 Tabataba’i’s political concern was generally limited. Until he died in 1983, he had remained aloof from the world of politics, although not antagonistic to the institutions of higher learning sponsored by the Shah. In his writings, as in Henry Corbin’s (who was very close to him), the esoteric and spiritual aspects of Shi’ism receive the strongest emphasis. See Tabataba’i’s’Ijtihad va taqlid dar Islam va shi’a’ (Ijtihad and taqlid in Islam and Shi’ism), and lvilayat va za’amat’ (Wilaya and Leadership), both in Bahthi, above n. 15. On Tabataba’i in the Iranian context and his study of the gnostic aspects of Islam, see S. Akhavi, Religion and Politics in Contemporary Iran, Albany, NY, 1980, p. 138, and the introduction by H. Nasr to Tabataba’i’s Shi’ite Islam, Albany, NY, 1975.

43 There is no trace in early Shi’i tafsir of the distinction made by Sadr. His reference to rabbaniyyun as the Imams and to the ahbar as the ‘ulama is not found in the two classic Shi’i tafsirs: Abu Ja’far at-Tusi (d. 460/1067), at-Tibyan, Najaf, n.d., vol.3, PP-526-9; Abu’Ali at-Tabarsi (sixth/twelfth century), Majma1 al-Bayan fi Tafsir al-Qur’an, Beirut, n.d., vol. 6-7, pp. 101-4. The sabab an-nuzul they mention is similar to Sunni exegesis. Both interpreters wonder about the universality of the verse or its restriction to the’Jewish’ occasion. Compare Tusi, pp. 528-9 and Tabarsi, pp. 103-4 with Tabari, above, n. 24.

44 Sadr, Khilafat, p. 50.

45 There is an overall correlation between the tafsir of verse 44 of sura 5 and the political world views and role of the five interpreters. This correspondence should however not be over-emphasised. Tabataba’i said his word on social and political issues, and occasionally criticised the laws in Iran (Akhavi, Religion and Politics, p. 127). The Karbala scholar Muhammad al-Husayni ash-Shirazi has been directly involved in Caesar’s realm and his brother Hasan was extremely active in the Shi’i international until he was killed in Beirut in 1980; his other son Muhammad has remained involved to date in Iraqi politics, from his basis in Qum. Rida’s political role, of course, notwithstanding his tafsir of the verse, was important. See in particular his theses on the Islamic state in al-Khilafa wallmama al-’Uzma, quoted above, n. 4.

46 Sadr, Iqtisaduna, pp. 359-60.

47 For further details, this volume, chapter 4.

48 Sadr, Iqtisaduna, pp. 331, 656.

49 See General introduction, nn. 73, 75. Manabi1 al-Qudra fid-Dawla al-Islamiyya (The Sources of Power in the Islamic State) will be referred to henceforth as Manabi1.

50 Sadr, Manabi1, p. 9.

51 Ibid.

52 Ibid., pp. 12, 13.

53 Ibid., pp. 14-24.

54 Ibid., p. 17.

55 Ibid.

56 Ibid., p. 32.

57 Ibid., pp. 40, 41.

58 In the 1979 Constitution of Iran, it appears as an important concern of the new’ Bill of Rights’; see especially the preliminary section on’ the economy as means and not end’ and art. 3, para. 12. See generally Hamid Algar,’Social justice in the ideology and legislation of the Islamic revolution of Iran’, in L. Michalak and J. Salacuse eds, Social Legislation in the Contemporary Middle East, Berkeley, 1986, pp. 17-60; S. Bakhash,’Islam and social justice in Iran’, in M. Kramer ed., Shi’ism, Resistance and Revolution, pp. 95-116.

59 This is discussed in more detail in my’Religious militancy’ and’Political Islam’.

60 This message appears often in the literature of the Iraqi Islamic opposition. See e.g. the back cover ofal-Hiwar al-Fikri was-Siyasi (Tehran), 30-1,1985; Ha’iri,’ Tarjamat’, p. 151-2. In English, the message is reproduced as’Baqir al-Sadr’s last message on the unity of the Ummah’, in K. Siddiqui ed., Issues in the Islamic Movement, London, 1981, p. 57.

61 See Yann Richard,’Du nationalisme a l’islamisme: dimensions de l’identite ethnique en Iran’, in Le Fait Ethnique en Iran et en Afghanistan, Paris, 1988, pp. 267-75.

62 The Lamha will be quoted hereinafter as Note. The Note was translated into French by Abbas al-Bostani at Ahl el-Beit Press in 1983. It appeared again with an introduction by Pierre Martin in Les Cahiers de l’Orient, 8-9, 1987-8, pp. 164-78.

63 Sadr, Note, p. 27.

64 For good accounts of these days, see Gary Sick, All Fall Down, London, 1985, pp. 154-6; Dilip Hiro, Iran under the Ayatollahs, London, 1985, pp. 91-3; E.

Abrahamian, Iran Between Two Revolutions, Princeton, 1982, pp. 527-9; F.

Hoveyda, The Fall of the Shah, London, 1980, pp. 149-51.

65 See this volume, Part I, Introduction.

66 Above, n. 15.

67 It was reported in the newspapers that an aide to Khumaini mentioned’ privately’ on 3 February’that’the main outlines’ of the Constitution of the proposed Islamic Republic have been written, but not the entire document’, New York Times, 4 Feb. 1979. But in his press conference on that day, Khumaini only alluded to a council which would eventually be formed to write a new constitution. See Foreign Broadcast Information Service, Daily Report: Middle East and Africa (Washington), 5 Feb. 1979. The Constitution was indeed drafted by the council a few months later.

68 A confusion of significant importance originates in the ambiguity of the Arabic title of the Note. There is a notion of certainty which, if included in the translation as’a preliminary legal note on the project of a constitution for the Islamic Republic of Iran’, might suggest that such a project existed already, and that Sadr was commenting on it in the form of the Note. The thrust of our argument, however, is that this element of certainty did not exist, as there was no document of a constitutional nature at the time of Sadr’s writing of his Note. Sadr was not working on any pre-existing text. His Note was an answer to a query which was’in the air’ at the time, and it is significant, both in terms of Shi’i internationalism, and in terms of his intellectual leadership in the whole community, that the Note has come in answer to a question put to him by the Lebanese mujtahids, most prominent among whom were relatives of Muhammad Mahdi Shamseddin, the present leader of the Lebanese Shi’i council and Ragheb Harb, who would be assassinated by the Israelis in 1984 because of his role in the Resistance in South Lebanon.

Another significant dimension is the role of the Note as a constitutional blueprint for the first Islamic Republic of Iran. Our argument is based on the conviction that the Note was of utmost importance for the Iranian Constitution adopted in 1979, because the similarities -sometimes verbatim -of the institutions adopted in two texts are too significant to be due to chance (see also the following footnotes). In my conversations with Iranian scholars, there has appeared some reluctance to admit that the relevance of the Note is as strong as I am suggesting. More light will come from the work presently undertaken at Oxford by Ahmad Jalali on the genesis of the Iranian Constitution.

69 S. Bakhash, The Reign of the Ayatollahs, New York, 1984, p. 74. This is confirmed by M. Bayat, quoting M. Bazargan, the first Prime Minister of the Islamic Republic :’ Neither in the preliminary working paper on the Constitution written while Khumaini was still in Paris, nor in the draft written in collaboration with the Provisional Government and the Revolutionary Council with Khumaini’s and other’ulama’s approval, was there the slightest reference to it [the rule of the/ags’A]. It was only invented later, in the final draft of the Constitution drawn by the Council of Experts under Khumaini’s direction.’ Bayat,’ Mahmud Taleqani’, pp. 79-80.

70 I am grateful for this piece of information to Professor Hamid Algar.

71 Qur’an, 18 (al-kahf): 109; Sadr, Note, p. 23.

72 Sadr, Note, p. 24.

73 Friedrich Engels, The Origin of the Family, Private Property and the State, London, 1940 (original German 1884).

74 The text of the Constitution is quoted after M. Watani ed., Majmu’e-ye Kamele Qavanin-e Madani-Asasi (Collection of Civil and Constitutional Laws), Tehran, 1364/1985.

75 For instance, relevant to this context is art. 2 of the Iraqi interim Constitution of 1970. Text in the journal al-Haqq, (Cairo), September 1972, pp. 134-49.

76 This is of course true of other Islamic thinkers, such as Khumaini and the Pakistani Mawdudi. See an interesting discussion on the Constitution of Pakistan, in N. Anderson, Law Reform in the Muslim World, London, 1976, pp. 173-83-

77 Sadr, Note, p. 17.

78 Ibid., p. 24.

79 Ibid., p. 21.

80 Ibid., p. 24.

81 Khumaini, Hukuma, p. 49; Velayat, p. 63; Government, p. 62. It must be noted that Khumaini did not advocate the necessity of one faqih to lead the government.

In his 1970 lectures, he insisted on the cooperation in power of several fuqaha:

‘ The government of the faqih over the other fuqaha does not allow him to discharge them or appoint them, because all the fuqaha are equal in terms of capacity (ahliyya)... the fuqaha should work alone or together to establish a legal government’, Hukuma, p. 51.

82 Sadr, Note, p. 25.

83 Khumaini, Hukuma, p. 41; Velayat, pp. 52-3; Government, p. 55.

84’The people, ash-sha’b’, Sadr, Note, p. 15.

85 Ibid., p. 19.

86 This is similar to the separation of powers in the French system.

87 Sadr, Note, p. 20. The discretionary area (or area of vacuum, faragh) is a concept carried forward from Sadr’s Iqtisaduna, see Part II. It refers in his 1979 parlance to the areas of the law which must be addressed without the guidance of precedent. The lack of precision of the concept is, not surprisingly, at the root of most of the difficult parliamentary debates in post-revolutionary Iran. See chapter 4.

88 Sadr, Note, p. 21.

89 Ibid., p. 20.

90 Ibid.

91 See on the Council of Guardians, chapter 3.

92 Sadr, Note, p. 21.

93 Ibid., pp. 20-1.

94 Through his command of the army. See supra n. 89 and accompanying text.

95 Sadr, Note, p. 20.

96 Ibid., p. 21.

97 Ibid., p. 22.

98 Ibid., p. 21.

99 Ibid., p. 21. For further parallels between Sadr’s Note and the Iranian Constitution, see the good analysis of Muhammad’Abdallah,’Dawlat wilayat al-faqih’ (The State in wilayat al-faqih), Dirasat wa Buhuth (Tehran), 2:8, 1403/1983, pp. 97-127.

3- The first decade of the Iranian constitution: problems of the least dangerous branch

1 L. Carroll, Through the Looking Glass, in Complete Works, London, 1939, p. 196.

2’ Bishop Hoadly’s sermon preached before the King, March 31,1717’, quoted in W. Lockhart, Y. Kamisar and J. Choper eds., Constitutional Law, Cases, Comments, Questions, Chicago, 3rd edn, 1970 (1st edn, 1964), p. 1. This collection of cases is widely used in American law schools.

3 Article 61, mod. 1974, of the French Constitution states:’Les lois organiques avant leur promulgation, et les reglements des assemblies parlementaires, avant leur mise en application, doivent etre soumis au Conseil Constitutionnel qui se prononce sur leur conformite a la Constitution. Aux memes fins, les lois peuvent etre deferees au Conseil Constitutionnel, avant leur promulgation, par le President de la Republique, le Premier Ministre, le President de l’Assemblee Nationale, le President du Senat ou soixante deputes ou soixante senateurs. Dans les cas prevus aux deux articles precedents, le Conseil Constitutionnel doit statuer dans le delai d’un mois. Toutefois, a la demande du Gouvernement, s’il y a urgence, ce delai est ramene a huit jours.’ There is a large literature on the Conseil Constitutionnel. Its main decisions are collected and discussed in L.

Philip and L. Favoreu, Les Grandes Decisions du Conseil Constitutionnel, Paris, 4th ed., 1986; see also Francois Luchaire, Le Conseil Constitutionnel, Paris, 1980; L. Hamon, Les Juges de la Loi, Paris, 1987. Recently, an amendment has been proposed by the French President to allow private citizens direct access to the Conseil, but the opposition did not rally around the proposal in a way that would allow its endorsement by the qualified majority needed for a constitutional revision.

4 E.g. the Syrian constitution of 1973, art. 3(1):’The religion of the President of the Republic shall be Islam.’ Text in A. Blaustein and G. Flanz eds., Constitutions of the Countries of the World, Vol.16, New York (issued June 1974).

5 On 29 July 1985, the Council of Guardians accepted the candidacy of only three presidential candidates. Bazargan’s candidacy was rejected. In the presidential elections of July 1989, out of some eighty names, two candidacies were retained by the Council.

6 Art. 71:’Parliament has the power to legislate in all matters, within the boundaries set by the Constitution.’ 7 Discussed in chapter 4, this volume.

8 Marbury v. Madison, 1 Cranch 137 (1803).

9 Khu’i, al-Masa’el al-Muntakhaba, p. 8. Khumaini, Tahrir al-Wasila, I, p. 3.

(Note an interesting detail in Khumaini’s development. In the introductory section on ijtihad, Khumaini writes that’the marja1 at-taqlid must be a scholar (‘alim)3 mujtahid, just (‘adil)’ pious (wari’fi din allah), and uninvolved in worldly affairs (ghayr mukibb lalad-dunia).’ This is different from the thrust of the Najaf lectures on wilayat al-faqih.) Other traditional qualifications are attached to the person of the judge, and included in’ kitab al-qada’’ (chapter on the judiciary), Tahrir al-Wasila, II, pp. 366-8.

10 Khumaini was known to repeat that he was’a Husayni, not a Hasani’.

11 Ibn Khaldun (d. 808/1406), al-Muqaddima, Cairo, n.d. (edition of the Matba’a Tijariyya), chapter 34, p. 542.

12 Ibid.

13 Also Montesquieu, L’Esprit des Lois:’The power (puissance) of judging...

becomes, so to speak, invisible and null’, in Oeuvres Completes, Paris, 1964, P-587.

14 The Federalist Papers (1787-8), New York, 1961, paper 78 (A. Hamilton), p. 469.

15 John Hart Ely, Democracy and Distrust, Cambridge, Mass., 1980, p. 4-5. See also J. Choper, Judicial Review and the National Political Process, Chicago, 1980, p. 10. These two books, especially Ely’s, are much celebrated in the United States for their theories on judicial review in the American system. For this debate, see my’al-mahkama al-lulya al-amirkiyya fin-niqash al-qanuni al-mu’asir’ (The American Supreme Court in the Contemporary Legal Debate), Proche-Orient Etudes Juridiques, 1987, pp. 9-26, and the literature cited.

16 E.g. in France, the President of the Republic, art. 15; in the USA, the President, Article n Section 2.

17 The principle (already quoted in chapter 2) in the opening article of the chapter on the Executive power further establishes the secondary importance of the Presidency, which’ is the highest official position of the country’ only’ after the leadership’.

18 In the United States, impeachment was used only once, against President Andrew Johnson in 1868. In 1974, President Nixon chose to resign after the Judiciary Committee of the House of Representatives voted to recommend three articles of impeachment. See generally J. Labovitz, Presidential Impeachment, New Haven, 1978.

19 Hiro, Iran Under the Ayatollahs, pp. 181-2; S. Bakhash, The Reign, pp. 125-65, especially at pp. 159-62.

20 Sermon reproduced in Keyhan Hava’i, 6 Jan. 1988.

21 Khumaini’s letter was published in Keyhan Hava’i, 13 Jan. 1988. A translation appears in Summary of World Broadcasts: Middle East and Africa [hereinafter SWB), (London), 8 Jan., 1988, p. A/7. See now on the letter, J. Reissner,’Der Imam und die Verfassung; zur politischen und staatsrechtlichen Bedeutung der Direktive Imam Khomeinis vom 7. Januar 1988’, Orient, 29:2,1988, pp. 213-36.

The date of the letter is 6 January, but its public release took place on the 7th.

22 Muntazeri, commenting on Khumaini’s 6 January letter, SWB, n Jan. 1988, p. A/6.

23 This is in reference to Muhammad Baqer an-Najafi, d. 1266/1850, known as Sahib al-Jawahir, and to al-’Allama al-Hilli’s (d. 726/1325) Tahrir al-Ahkam ash-Shar’iyya.

24 On anfal, which is associated in Sadr’s economic theory with’state property’ (Iqtisaduna, p. 421), see chapter 4.

25 Marbury, at 178.

26 Ibid., at 176.

27 Letter from Khamene’i to Khumaini, in Ettela’at (Tehran), 12 Jan. 1988; SWB, 13 Jan. 1988.

28 Letter from Khumaini to Khamene’i, in Ettela’at, 12 Jan. 1988; SWB, 13 Jan.

1988.

29 In June 1989, Khamene’i was appointed second rahbar of the Islamic Republic of Iran, and’upgraded’ with the title of Ay at Allah. Without the reassurance of Khumaini’s support after his initial admonition of Khamene’i’s interpretation of wilayat al-faqih, it would hardly be conceivable for his candidacy to be retained by the Assembly of Experts. The demise of Ay at Allah Muntazeri itself is a significant and yet to be fully documented event in Iran. It is hoped that Professor Mottahedeh’s communication on the subject (SOAS Middle East Forum, 17 May 1991) will be published soon.

30 SWB, 16 Jan. 1988, p. A/6. Emphasis added.

31 SWB, 8 Jan. 1988, p. A/8.

32 Ibid. Even in his letter of 6 Jan., Khumaini was reluctant to intervene:’After greetings and salutations, I did not wish that any controversy should arise at this sensitive juncture, and I believe that in such circumstances, silence is the best attitude.’ Compare constitutional silence in the American context, see L. Tribe,’Towards a syntax of the unsaid: construing the sounds of congressional and constitutional silence’, Indiana Law Journal, 57, 1982, 515, published also as Chapter 4 of his Constitutional Choices, Cambridge, Mass., 1985.

33 SWB, 8 Jan. 1988, p. A/8.

34 Shakespeare, Hamlet, m, i, 66 (G. Hibbard ed., Oxford, 1987).

35 It is again interesting to draw a parallel with the US Supreme Court at the time of the New Deal, when the majority of the judges would not let President Roosevelt’s new laws pass constitutional muster, on ground that intervention in economic matters was against the’commerce’ and’due process’ clauses of the Constitution. See e.g. Schlechter Poultry Corp. v. US, 295 US 495 (1935), invalidating the National Industrial Recovery Act of 1933 because’the attempt through the provisions of he Code to fix the hours and wages of employes [sic] of defendants in their intrastate business was not a valid exercise of federal power’, at 550; Carter v. Carter Coal Co., 298 US 238 (1936), invalidating an act regulating maximum hours and minimum wages in coal mines; and the formulation in Railroad Retirement Board v. Alton Railroad Co., 295 US 330 (1935) at 338:’It is apparent that [the new legal regulations] are really and essentially related solely to the social welfare of the worker and therefore remote from any regulation of commerce as such.’ The issue was ultimately solved to the advantage of the Presidency after several changes in the membership of the Supreme Court. By 1937, National Labor Relations Board v. Jones Steel Corp., 301 US 57, started the reversal trend by upholding the constitutionality of the National Labor Relations Act of 1935.

36 SWB, 18 Jan. 1988, p. A / I .

37 SWB, 12 Jan. 1988, p. A/5.

38 SWB, 16 Jan. 1988, p. A/6.

39 The letter to Khumaini, as well as Khumaini’s message in response, can be found in SWB, 8 Feb. 1988, p. A/6. The message of Khumaini is dated 6 Feb. 1988.

40 Ibid.

41 Ibid.

42 Ibid. This is again reminiscent of the threat introduced by the’Court-packing’ plan of President Roosevelt. Khumaini has in effect undermined the blocking power of the Council of Guardians by increasing the number of constitutional watchdogs to a new majority.

43 Ibid.

44 Article 112 as amended. I am grateful to my colleague Ja’far Delshad for providing me with the original text of the constitutional amendments. The text can now be found in the yearly publication of laws by the Ministry of Justice, Majmu’e-ye Qavanin (Collection of Laws), Year 1368 (1989-90), Tehran, 1369 (1990-1), pp. 455-68.

45 These details were gracefully provided by Chris Rundle, an outstanding scholar of Iran with the British Foreign Office.

46 See details on the substantive details related to agrarian law, this volume, chapter 4.

47 See text of the Bill and its approval into law by the Majma’ in Ministry of Justice, Majmu’e-ye Qavanin, Year 1369 (1990-1), Tehran, 1370 (1991-2), pp. 731-75.

Introduction to Part II

1 In Arabic,’Abd al-Jabbar ar-Rifa’i,’Fihrist al-Iqtisad al-hlami I-VII’ (Index of Islamic Economics), at-Tawhid, issue 20 (1986) to issue 27 (1987); in German and English, V. Nienhaus, Literature on Islamic Economics in English and in German, Cologne, 1982.

2 An overview of the literature can be found in T. Kuran,’ On the notion of economic justice in contemporary Islamic thought’, IJMES, 21, 1989, 171-91;

‘The economic system in contemporary Islamic thought: interpretation and assessment’, IJMES, 18,1980,135-64. Kuran’s criticism is based mainly on the literature produced in English. An interesting analysis can be found in Biancamaria Amoretti,’ Pour une analyse politique de l’economie islamique’, La Pense’e, 229, 1982, 62-70.

3 Muhammad’Abd al-Mun’im al-Jamal, Mausu’at al-Iqtisad al-Islami (Encyclopaedia of Islamic Economics), Cairo, 1980, 2 vols.

4 See e.g. Pedro Chalmeta,’Au sujet des theories economiques d’lbn Khaldun’, Rivista degli Studi Orientali, 1983, 93-120; J. Spengler,’Economic thought in Islam: Ibn Khaldun’, Comparative Studies in Society and History, 1963-4, 268-306.

5 S. Mahmassani, Les Ide’es Economiques d’lbn Khaldoun. Essai Historique, Analytique et Critique, Lyon, 1932. Originally a doctoral thesis at the University of Lyon.

6 Muhammad Baqer as-Sadr, Iqtisaduna (Our economic system), first edition in two volumes, 1961. See this volume chapter 4, n. 21 and passim. For easier reference, Iqtisaduna will be henceforth quoted in the text as / , followed by the page. There have been more than ten reprints of Iqtisaduna. The edition used here is the 1977 one, published in one volume by Dar al-Kitab al-Lubnani (Beirut) and Dar al-Kitab al-Masri (Cairo).

7 Muhammad Baqer as-Sadr, al-Bank al-la Ribawi fil-Islam (The Interest-Free Bank in Islam), first edition, Kuwait, c. 1969. The reference will be henceforth to IFB (Interest-Free Bank), followed by the page number. Reference is to the eighth edition, Beirut, 1983.

8 See for details my’Riba and interest in twentieth century jurisprudence’, in C.

Mallat ed., Islamic Law and Finance, London, 1988, pp. 71-87.

4- Law and the discovery of’Islamic economics’

1 For Sadr, by allowing the existence of various forms of property simultaneously, Islam did not have to provide for exceptions to the social norm, as did Capitalism long ago by tolerating forms of nationalisation and public service; or when Socialism and Communism admitted private property, as in Articles 7 and 9 on kolkhoze private property schemes in the 1936 Constitution of the USSR (I 259-60).

2 Ati’u allah wa ati’u ar-rasul wa uli al-amr minkum (Obey God, the Prophet and those amongst you who are in charge), Q: iv, 58. This verse is often quoted in Sunni literature in support of obedience to the ruler, however unjust he may be.

See Mawardi (d. 450/1058), al-Ahkam as-Sultaniyya, p. 6, quoted in Lambton, State and Government, p. 86. An earlier authority can be found in Abu Yusuf (d.

182/798), Kitab al-Kharaj, ed. Beirut, 1979, pp. 8-10; on the attitude of early Shi’i ‘ulama, see generally Lambton, pp. 242-63.

3 The reference to inheritance must be seen in the Iraqi context. See my’ Sunnism and Shi’ism in Iraqi Islamic family law -Revisiting the codes’, in Mallat and Connors eds., Islamic Family Law; Y. Linant de Bellefonds,’Le code du statut personnel irakien du 30 decembre 1959’, Studia Islamica, 13, i960, 79-135; N.

Anderson,’A law of personal status for Iraq’, and’Changes in the law of personal status in Iraq’, International and Comparative Law Quarterly, 9, i960, 542-63; 12, 1963, 1026-31.

4 As frequently appears in the Islamic theory of government, Sadr refers to the Prophet’s rule in Medina as the ideal period in the history of Islam (I 263-4). In terms of Islamic economics, however, he introduced some qualifications to this depiction, particularly as to the relevance of the capitalist atmosphere prevailing at the time in relation to the present, more complex social relations.

5 This is generally consonant with the tradition. Sadr, however, introduces zakat in a different taxonomic framework in his Fatawa Wadiha (1976). See text quoted this volume, General introduction, n. 73; compare N. Calder,’ Zakat in Imami Shi’i jurisprudence, from the tenth to the sixteenth century’, BSOAS, 64, 1981, 468-80.

6 No explanation is given for this bizarre assertion.

7 The image of the society as a building with a basis and a superstructure often recurs in Iqtisaduna. This idea was current in the Marxism of the 1950s as a metaphor for society. For famous formulations, see K. Marx,’Preface’ to A Contribution to the Critique of Political Economy (translation of the Grundrisse, 1859), reproduced e.g. in T. Bottomore and P. Goode, Readings in Marxist Sociology, Oxford, 1983, pp. 49-50; F. Engels,’Letter to J. Bloch, 21-22 September 1890’, in K. Marx and F. Engels, Selected Works, Moscow, 1951, vol. 2, pp. 443-4. This was one of the editions prepared by the foreign languages department in Moscow, and was also available in Arabic. On the idea of infrastructure in the 1950s, compare L. Febvre, quoted in H. D. Mann, Lucien Febvre: la Pense’e Vivante d’un Historien, Paris, 1971, p. 126:’[Infrastructure], mot que je n’aime guere, on me le pardonnera. Metaphore statique de maitremacon, de cimentier prudent.’ 8 Compare C. Chehata,’La theorie de l’abus des droits chez les jurisconsultes musulmans’, Revue Marocaine de Droit, 1953, 105-13.

9 Mudaraba (contract of commenda) is discussed in detail in Sadr’s works on banking. See this volume, chapter 5.

10 Sadr also addresses’the social problem’ as a central philosophical question in Falsafatuna,pp. 11-53.

11 Nafi ad-darar. This is the torts principle suggested in the hadith, la darar wa la darar, see W. Zuhaili, Nazariyyat ad-Daman, pp. 18-19.

12 Madhhab denotes either an ideological school (as in’socialist madhhab’) or a classical school in Sunni law. On legal madhhabs, see G. Makdisi,’The significance of the Sunni schools of law in Islamic religious history’, IJMES, 11, 1979s 1-8. Sadr uses the word in both senses. See also J. Donohue,’Notre economie’, Cahiers de l’Orient, 8-9, 1987-8, 179-80, 192.

13 Tanaqus al-ghilla. This is probably a reference to Marx’s laws on the fall of production, or of the tendency of the rate of profit to fall.

14 The concept of the topsy-turvy image is current in Marxist language, especially in relation to the reading of Hegel by Marx.

15 See this volume, chapter 3,’Islamic law constrained’.

16 See further my’Religious militancy’, pp. 705-9.

17 Chapter 3 and pp. 146-57.

18 For details on tasq, defined after Tusi as the imposition of land for the benefit of the community, / 504-6; and details on the concept of property in Islam in contrast with Socialism, and on the rules of inheritance and the economy, /499-5I4-

19 For ju’ala (compensation), see this volume, chapter 5.

20 Kay la yakun dulatan minal-aghniya’ minkum, Q: 59,7.

21 I was not able to find a copy of the original edition of Iqtisaduna. There is reference to a first volume, published in Najaf in 1961 (the original was apparently in two volumes) in the catalogue of the British Library Oriental section in London, but the volume is missing from the shelf. The editions of Iqtisaduna since 1970 have been incorporated in one volume, but one can find an edition consisting of two volumes in one, published in Beirut in 1968.

22 See General introduction, n. 60.

23 Iqtisaduna was published in Persian in 1971 (Iqtisadima, vol. 1, tr. by Muhammad Kazim Musavi) and 1978 (Iqtisadima, vol. 2, tr. by Abdol-Ali Ispahbudi). The book was used in the Shi’i colleges in Iran, but the first translation is said to have been poor. See M. Fisher, From Religious Dispute to Revolution, p. 157. A new Persian translation appeared in 1981.

24 For the German translation, see this volume, General introduction, n. 28. The Turkish translation of Iqtisaduna was undertaken by Mehmet Keskin and Sadettin Ergiin, Istanbul, 1978.

25 Iqtisaduna was translated in English in Tehran in 4 vols., 1982-4.

26 Translation, in part, by I. Howard in successive articles which appeared in al-Serat as’The Islamic Economy i-vn’ (March 1981 to Spring 1985).

27 Muhammad Ja’far Shamseddin, Iqtisaduna, Talkhis wa Tawdih (Iqtisaduna, Summary and Clarification), 4 vols., Beirut, 1986-7.

28 General introduction, n. 68.

29 Yusuf Kamal and Abul-Majd Harak, Al-Iqtisad al-Islami bayna Fiqh ash-Shi’a wa Fiqh as-Sunna: Qira’a Naqdiyya fi Kitab Iqtisaduna (Islamic Economics between Shi’i and Sunni Fiqh: a Critical Reading of Iqtisaduna), Cairo, 1987/1408.

The book will be quoted here following each of the two authors’ separate essay, as’Kamal’ and, alternatively,’Harak’, followed by the page number.

30 Introduction by the publisher, p. 5.

31 Ibid. See for similar statements, Harak, p. 91; Kamal, p. 95.

32 Kamal, p. 123.

33 On the note of page 124, Kamal quotes p. 417 of a book which is 200 pages long.

34 See especially Harak, pp. 62-3.

35 Ibid., chapter 2, pp. 40-54.

36 Ibid., pp. 26 ff.

37 Harak, pp. 50-1.

38 Ibid., p. 65.

39 /Wd.

40 Ibid., p. 70.

41 /6u2., pp. 85-90. quote at p. 89.

42 Mahmud Taleqani, Islam va Malekiyyat (Islam and property), Tehran, 10th edn, 1965. On Taleqani, see this volume, chapter 2.

43 Hasan ash-Shirazi, al-Iqtisad (the economy), Beirut, 1980, originally published in i960. Shirazi was the brother of Muhammad al-Husayni ash-Shirazi, the author of the Taqrib quoted in chapter 2.

44 Qutb’s main’economic’ contribution is his al-’Adala al-Ijtima’tyya fil-Islam (Social Justice in Islam), Cairo, 1949; Qutb was executed by Naser in 1966. On Qutb, see also this volume, chapter 2.’Allal al-Fasi, who was a major figure in Moroccan Islamism, wrote a short economic study entitled Fil-Madhahib al-Iqtisadiyya (On Economic Doctrines) in 1971. Muhammad Baqer as-Sadr is quoted in this book several times. See the Rabat edition at Dar ar-Risala, 1978, pp. 146-8, 166-8. To those can be added Mawdudi, who was an important Pakistani activist, but a less interesting intellectual figure.

45 Quduri, Al-Mukhtasar, India edn, 1847, p. 228. For Kasani (d.587/1191), the main division in his book of land (kitab al-aradi) lies between lamer (prosperous) and mawwat (dead) land. Bada’e’ as-Sana’e1 fi Tartib ash-Shara’e1, Cairo, 1910, vi, pp. 192-6.1 am grateful to Dr Norman Calder for having drawn my attention to some of these dimensions.

46 In a decision of the Egyptian Supreme Constitutional Court, the idea of wali alamr as the predecessor of the interventionist modern state was put forward to defend economic measures adopted’in conformity with the shari’a’. (Decision of the Supreme Constitutional Court, 4 May 1991, published in the Egyptian Official Journal, 16 May 1991, at p. 972.) In Tunis, Salahaddin al-Jurayshi has recently published social and economic texts by Sadr, which were collected in Jawanib min al-Mas’ala al-Ijtima’iyya (Aspects of the Social Question), Tunis, n.d. (late 1980s). The commentator went to great lengths in explaining how free from sectarianism Sadr’s work remains despite its general methodological setbacks (see esp. pp. 15, 23, 25, 35, and 88-93). In Algeria, Iqtisaduna’s distinction between state and public property featured in texts which appeared in newspapers close to the Front Islamique du Salut. See the text in M. al-Ahnaf, B. Botiveau and F. Fregosi, L’Algerie par ses Islamistes, Paris, 1991, pp. 175-8.

47 On Muhammad Baqer as-Sadr and Abul-Hasan Bani Sadr, who published in 1978 his Iqtisad-e Tawhidi (The Unitary Economy), see H. Katouzian,’Shi’ism and Islamic Economies’, in N. Keddie ed., Religion and Politics in Iran, pp. 145-65. See also S. Bakhash, The Reign of the Ayatollahs, pp. 166-75.

48 See a case study of Iraq in the early conquest in M. Morony,’ Landholding in seventh-century Iraq: late Sasanian and early Islamic patterns’, in A. Udovitch ed., The Islamic Middle East 700-1900. Studies in Economic and Social History, Princeton, 1981;’Landholding and social change: lower al-’Iraq in the early Islamic period’, in T. Khalidi ed., Land Tenure and Social Transformation in the Middle East, Beirut, 1984. Early patterns of Islamic law and land tenure can be found in Abu Yusuf s Kitab al-Kharaj.

49 The Council of Guardians’ debates preceding its final decision (where no dissent is reported) have not been published, but the present head of the Council, Muhamad Muhammadi Gilani, has expressed his wish to see the minutes eventually in print. Information supplied by Mr M. Ansari-Poor, an official of the Iranian Ministry of Justice, who is currently preparing a Ph.D. at SOAS.

50 See chapter 3, n. 32.

51 On this period, see the well-informed and insightful study of H. Algar,’Social justice in the ideology and legislation of the Islamic Revolution of Iran’, in L.

Michalak and J. Salacuse eds., Social Legislation in the Contemporary Middle East, Berkeley, 1986, pp. 18-60 (and my review in Third World Quarterly, 10:2, 1988, pp. 1095-8), and S. Bakhash, The Reign, pp. 195-216. There is a steadily growing literature on land and agriculture in post-revolutionary Iran. See especially A. Schirazi, The Problem of the Land Reform in the Islamic Republic of Iran, Berlin, 1987; S. Bakhash,’The politics of land, law and social justice in Iran’, Middle East Journal, 43:2, pp. 186-201; J. Koorooshy,’ Agrarverfassung der Islamischen Republik Iran’, Orient, 28, 1987, 229-43; A good overview of land problems within a more comprehensive study of Iranian agriculture is K. MacLachlan, The Neglected Garden, London, 1988. Hooglund’s Land and Revolution in Iran, Austin, Texas, 1982, pp. 138-52, briefly covers the revolutionary period. The classic work on land reform under the Shah is A.

Lambton, The Persian Land Reform 1962-1966, Oxford, 1969.

52 See Algar,’Social justice’, pp. 41, 43.

53 The bill of 28 December 1982 was published in the Tehran dailies of the following day. Excerpts of the law can be found in an important reference book on constitutional law, written by a non-faqih member of the Council of Guardians: Jalaladdin Madani, Huquq-e Asasi dar Jumhuri-ye Islami-ye Iran (Fundamental Law in the Islamic Republic of Iran), Tehran, 1366/1987-8, vol. 4:

Quwwe-ye Muqannene-ye Shura-ye Negahban (Legislative Power -The Council of Guardians). Access to recent legislative texts in Iran is difficult. Laws which are struck down by the Council of Guardians do not necessarily get published in the Official Journal. Newspapers sometimes reproduce the text of the laws, but the decisions of the Council of Guardians are more difficult to find. The appendix to Madani’s book, which reproduces’all [?] the corrective decisions’ of the Council, is unique in this respect. In the case of the bill of 28 December 1982, the main articles of disagreement between the Council of Guardians and Parliament have been appended to the Council’s decision. See Madani, pp. 275-7. But the Council of Guardians has recently undertaken to publish all its decisions in a facsimile edition. Two volumes covering the Council’s decisions over the first decade of the Islamic Republic have appeared in Presidency of the Republic, Majmu’e-ye Nazariyyat-e Shura-ye Negahban, Tehran, 1369/1990-1 (kindly drawn to my attention by Mr Ansari-Poor). See now the text of the 1982 Bill in Majmu’e-ye Nazariyyat-e Shura-ye Negahban, vol. 1, pp. 309-14. A. Schirazi has collected and translated into German several texts on land reform in Texte zur Agrargesetzgebung in der Islamischen Republik Iran, Berlin, 1988. The bill of 28 December 1982 is translated in full at pp. 234-46.

54 The full text of the Council of Guardians’ decision of 18 January 1983 can be found in Madani, pp. 274-5, an<i m Majmu’e-ye Nazariyyat-e Shura-ye Negahban, vol. 1, pp. 307-8.

55 The date of Khumaini’s declaration is mentioned as 19/7/1360 (11 October 1981). This farman was also quoted by the Council of Guardians in its second rejection of the land reform bill of 1985. See this volume, p. 152. In this declaration, Khumaini vests Parliament with the’ right to adopt and implement any measure which guarantees the interests of the Islamic Republic, and the neglect of which would result in a disturbance of order... The majority in Parliament determines the existence of such a case when it is clear that the decision is only temporarily valid and will be automatically annulled when the cause disappears.’ The Council of Guardians made clear that the question of land would not be affected by the decree. See A. Schirazi, The Problem, p. 32.

56 Council of Guardians, decision of 18 January 1983, Madani, p. 274. Majmu’e-ye Nazariyyat-e Shura-ye Negahban, vol. 1, p. 307.

57 The Council of Guardians found other less significant faults in the bill. See details in Madani, p. 275; Majmu’e-ye Nazariyyat-e Shura-ye Negahban, vol. 1, pp. 308; Koorooshy,’ Agrarverfassung’, pp. 237-8.

58 The full text of the bill of 19 May 1985 is reproduced in Madani, pp. 278-85, and is followed by the rejection of the Council of Guardians. I was unable to find this decision in Majmu’e-ye Nazariyyat-e Shura-ye Negahban.

59 Bill of 19 May 1985, chapter 1: definitions. Madani, p. 278.

60 Council of Guardians, decision of 2 June 1985, reproduced in Madani, pp. 285-6.

61 On the whole issue of the bill on’ temporary cultivation land’, see Bakhash,’ The Politics’. For details of the breakdown of structure of land in Iran, Ibid., pp. 186, 189; A. Schirazi, The Problem, pp. 8, 18.

62 The question of the two-thirds majority in the vote of Parliament as a device that would dispense with Council of Guardians scrutiny is an obscure development in Iranian constitutionalism. There is nothing in the Constitution of 1979 which would warrant this mechanism, introduced by Khumaini in 1984 according to Schirazi, The Problem, p. 17 and n. 35. Bakhash however dates this declaration in January 1983,’The polities’, p. 197. This might explain why the Council of Guardians never handed down a rejection of the bill of October 1986, despite the clear rejection it had stated in its 1985 decision. An alternative explanation might be that Parliament never sent up the bill to the Council of Guardians, and so avoided any danger of the Council’s scrutiny. Four important procedural matters are worth mentioning here: (1) The process of the Council of Guardians’ scrutiny is generally activated by the Speaker, who sends a letter to the secretary of the Council of Guardians once a bill is voted. If, as probably was the case in the bill on temporary land, the Speaker does not send the bill up to the Council of Guardians, he might be infringing his constitutional duty, but could have explained it under the item of the two-thirds majority. (2) The second remark is related to the position of the Leader in the controversy on land. The Leader might want to break an impasse between the Council of Guardians and Parliament by deciding on the effective substance of the law, when it is as controversial as the land reform. He is not however technically able to introduce such a radical change as dispensing a bill from the scrutiny of the Council of Guardians. Khumaini might have made a declaration to that effect. This does not preclude the anti-constitutionality of the move. Only Khumaini’s unquestioned authority could have allowed it temporarily. (3) The dubious nature of such a constitutional change appears even more clearly in the fact that the Speaker himself, Hashemi Rafsanjani, declared at the time of the constitutional crisis of 1988 that the whole question of the two-thirds majority was superfluous. See this volume, chapter 3, quotation at n. 33. (4) It is also worth noting that the amendments to the Constitution which came into effect in July 1989 did not mention any two-thirds or otherwise qualified majority in relation to legislation.

The Amended Art. 89 introduces the two-thirds majority of Parliamentarians only in the new impeachment procedure of the President.

63 The description of the voting episode is well documented in Bakhash,’The polities’, pp. 198-9.

64 Ibid., pp. 192-6.

65 Council of Guardians, decision of 2 June 1985, reproduced in Madani, p. 286.

66 Decision of the Majma’-e Tashkhis-e Maslahat, 7/12/1369 (26 February 1991), in Ministry of Justice, Majmule-ye Qavanin, 1369/1990-1, p. 971.

67 Decision of the Majma’-e Tashkhis-e Maslahat’ dar khusus-e hall meshkel-e arazi bayer, for the solving of the problems of abandoned land’, 25/5/1367 (16 August 1988), in Ministry of Justice, Majmule-ye Qavanin, 1367/1988-9, pp. 604-5.

68 Clause 3 of the Note to the Decision of the Majma’-e Tashkhis-e Maslahat of 25/5/i367, mentioned the two-month implementation. The Executive Order was actually published in the Official Journal on 28/12/1369 (18 March 1991) and reproduced in’Executive Order for the Decision of the Majma’-e Tashkhise Maslahat on the solving of the problems of abandoned land’, Majmule-ye Qavanin, 1369/1990-1, pp. 928-31.

69 Contra A. Rieck, for instance, who writes that Sadr’s system includes’ a series of elements which belong to the repertory of the present system of modified Capitalism’.’Introduction’ of the translator, p. 101.

70 Muhammad Baqer as-Sadr, Khutut Tafsiliyya’an Iqtisad al-Mujtama’ al-Islami, quoted in General introduction, n. 75, p. 36.

71 Ibid., p. 46.

72 Muhammad Baqer as-Sadr, al-Madrasa al-hlamiyya (the Islamic school), Beirut, 1973, p. 192. The two texts which constitute the Madrasa were written soon after Sadr completed Iqtisaduna.

5- Muhammad Baqer as-Sadr and Islamic banking

1 On this hadith and variations, see e.g. Tirmidhi’s (d. 279/892) al-Jame’ as-Sahih, ed. by M.’Abd al-Baqi, vol.3, Cairo, 1937, p. 541; Zaruq al-Fasi (d. 899/1493), Shark Sahih al-Bukhari (Comments on the Compilation of Bukhari, d. 256/870), vol. 4, Beirut, 1973, pp. 416-19.

2 Documented precedents in the Ottoman Empire have been discussed in J.Mandaville,’ Usurious piety: the cash zvaqf controversy in the Ottoman Empire’, International Journal of Middle Eastern Studies, 10, 1979, pp. 289-308; O.Turan,’A legal document concerning money-lending for interest in Seljukian Turkey’, Professor Muhammad Shaft Presentation Volume, Lahore, 1955, pp. 255-65; Nesh’et Cagatay,’Riba and interest concept and banking in the Ottoman empire’, Studia Islamica, 32, 1970, pp. 53-68; an early discussion on the negative impact of ribawi practice on the Egyptian countryside can be found in an article written in Egypt in 1895.’Ali’Abdal-Futuh,’ Al-ajnabi wal-Hqarat az-ziraiyyaa wal-bank az-zira’i (Foreigners, Agricultural Land and the Agricultural Bank), in his Ash-Shari(a al-Islamiyya, al-Qazvanin al-Wadiyyaa wal-Qada’ wal-Iqtisad wal-Ijtima1 (Islamic Law, Positive Laws, the Judiciary, Economics, and the Society), Cairo, n.d. (c. 1913), pp. 161-70.

3 Muhammad Rashid Rida, Ribh sunduq at-tawfir’ (The Profit of Sunduq at-Tawfir), Manor, 1917, p. 529.

4 Ibid., p. 528.

5 An important debate over riba and the Egyptian Civil Code took place between’Abd ar-Razzaq as-Sanhuri and Ibrahim al-Badawi. See Sanhuri, Masadir al-Haqq fil-Fiqh al-Islami (The Sources of Law in Islamic Jurisprudence), Cairo 1954-9. Ibrahim Zaki al-Badawi,Nazariyyat ar-Riba al-Muharram (The Theory of Forbidden riba), Cairo, 1964. On Sanhuri, the best work is by Enid Hill, Sanhuri and Islamic Law, Cairo, 1987; see also her’ Islamic law as a source for the development of a comparative jurisprudence: theory and practice in the life and work of Sanhuri’, in A. Azmeh ed., Islamic Law: Social and Historical Contexts, London, 1988, pp. 146-97.

6 Muhammad Qadri Basha undertook in the late nineteenth century to codify privately several areas of Islamic law. This resulted in codes of family law, al-Ahkam ash-Shariyyaa fil-Ahwal ash-Shakhsiyya, Alexandria, 1875; of waqf law, Qanun al-’Adl wal-Insaf lil-Qada’ lala Mushkilat al-Awqaf, Cairo, 1896; and most relevant to the Civil Code, Murshid al-Hayran ila Ma’rifat Ahwal al-Insan fil-Mulamalat ash-Shariyyaa, Cairo, 1891.

7 The Egyptian Civil Code has served as a close model for similar legislation in Syria (1949), Iraq (1953) and Libya (1954). See generally S. Mahmasani, al-Awda’ at-Tashri’iyya, pp. 266-7, 308-10.

8 The text of the Civil Code was published, along with the text of previous relevant legislation and the various debates in the Senate and in Parliament, by the Egyptian Ministry of Justice as al-Qanun al-Madani: Majmu’at al-A’mal at-Tahdiriyya (The Civil Code: The Complete Preparatory Works), in several volumes. The quote here is from Vol. 2, at p. 581.

9 La ta’kulu amwalakum ad’afan muda’afatan (literally, do not eat your monies times over), Qur’an: in, 130.

10 Quoted above, n. 5.

11 Sanhuri, Masadir al-Haqq, p. 236.

12 Ibid., p. 239.

13 More details in Ibid., pp. 237-44.

14 The decision is reported in English as Supreme Constitutional Court of Egypt,’Decision on shari’a and riba’, Arab Law Quarterly, 1 :i, 1985, pp. 100-8.

15 See’Ala’ ad-Din Kharufa, ar-Riba wal-Fa’ida (riba and interest), Baghdad, 1962.

16 See’Abduh, per Rida, note 3 above; Muhammad Abu Zahra, Tahrim ar-Riba Tanzim Iqtisadi (The prohibition of riba as economic organisation), n.p., n.d.

This work was produced originally in the 1950s; it was republished in Cairo in 1986 as Buhuth fir-Riba (studies in riba).

17’Thabat al-milkiyya’, see this volume, chapter 4.

18 Muhammad Baqer as-Sadr, al-Bank al-la Ribawi fil-Islam, Kuwait, first edn, c. 1969 [IFB quoted after the Beirut edition of Dar at-Ta’aruf, 1983]. It is important to note that in Egypt, there were practical attempts at setting’ Islamic’ banks as early as the 1960s. See generally A. Mayer,’ Islamic banking and credit policies in the Sadat era: the social origins of Islamic banking in Egypt’, Arab Law Quarterly, 1:1,1985, 32-50, at 36-40. But there was in Egypt no systematic attempt to go beyond the negative theories of the debate on riba in order to reach the developments attained in Sadr’s work on the mechanisms of an Islamic bank.

But see the efforts of the founder of the Mit Ghamr Savings Bank, Ahmad an-Najjar, Bunuk Bila Fa’ida lit-Tanmiya al-Iqtisadiyya wal-Ijtima’iyya fid-Duwal al-Islamiyya (Banks Without Interest for Economic and Social Development in Muslim Countries), Cairo, 1972.

19 Ujrat al-mithl can be loosely translated as fair or equivalent price.

20 For instances of such activity, see E. Ashtor,’Le taux d’interet dans l’orient medieval’, in The Medieval Near East: Social and Economic History, London, 1978, pp. 197-213; Levant Trade in the Later Middle Ages, Princeton, 1983, esp.

pp. 367-432; M. Khan,’Mohamedan Laws against usury and how they are evaded’, Journal of Comparative Law, 1929, 233-44.

21 For interest disguised under foreign currency schemes, IFB 177-9, for credit instalment sales, IFB 175.

22 Literal translation:’the sayyedmaster, may his shadow persist’. IFB 175. Is that a reference to Ayat Allah Abul-Qasem al-Khu’i or to Ayat Allah Muhsin al-Hakim, who died in 1970?

23 This philosophy resembles, and might be drawn from, Marx’ critique of mercantilist economists. In an Islamic bank, the shari’a also forbids’money which begets money’, in the formula of K. Marx, Capital, vol. 1, section 2, ch. 4, in fine.

24 As in the remark of Muhammad Faisal as-Sa’ud, who has in the past decade been the most active propounder of the Islamic banking system, both as a member of the ruling family in Saudi Arabia, and as the head of a number of Islamic financial houses:’ I didn’t say that the conventional banks are going to disappear. On the contrary, I think they will remain, and I think that the two systems are going to be there in parallel... [T]here is no conflict between the two. The two systems can exist parallel to each other without having problems. As a matter of fact, today our institutions deal, I know that our group deals with 180 riba banks’.

‘Luncheon Address’, in Proceedings of the First International Meeting, Islamic banking conference, New York, 1985, pp. i n , 109.

25 Sadr points up also to the existence of a third, hybrid category of deposits, savings deposits (wada’e1 at-tawfir). Like fixed deposits, savings deposits bear a return for the depositors. But they share with mobile deposits the entitlement to withdrawal by the depositors at any time. The hybrid character of these deposits determines their regime, which is also hybrid. A bank, says Sadr, will calculate approximately how much of the savings deposits might be withdrawn at any one time. If the average is, say, ten per cent, the remaining ninety per cent will be treated as fixed deposits, whereas ten per cent will be used as if they were mobile deposits (IFB 64-5).

26 This definition suggests that there is little difference with the classical definitions of Muslim jurists. On mudaraba, compare Sarakhsi (Hanafi school, d. 1092), Mabsut, 30 vols., Cairo, 1906-12, vol. 22, pp. 18-19; Muhammad Kazim at-Tabataba’i al-Yazdi (Ja’fari school, d. 1919), al-’Urwa al-Wuthqa, chapter on mudaraba, pp. 594-632; Ibn Hazm (Zahiri school, d. 1065), al-Muhalla, vol. 8, pp. 247-50. See also the well-documented works of N. Saleh, Unlawful Gain and Legitimate Profit in Islamic Law, Cambridge, 1986, pp. 101-14; S. D. Goitein, A Mediterranean Society, vol. 1, Economic Foundations, Berkeley, 1967, pp. 170 ff., 250-8; A. Udovitch, Partnership and Profit in Medieval Islam, Princeton, 1970, pp. 170-248.

27 This is further developed in Appendix 2 of the IFB, pp. 184-204.

28 I am indebted to Jad Swidane for helping me to see more clearly in this section.

An explanation can be presented in the following manner: The interest-free bank is competing with a conventional bank for funds. It must therefore offer at the outset a rate of return which is higher than the interest rate offered in a conventional bank. The example Sadr takes is of a conventional deposit of 100,000 dinar, with an interest rate of five per cent, and profit at twenty per cent.

Return for the depositor is therefore 5,000 per annum, and the profits stand at 20,000. The return of the share in the interest-free bank must therefore be more than 5,000.

How would the interest-free bank calculate this share? Sadr suggests it takes into account two elements: the risk of loss entailed generally, as well as the possibility that all the funds deposited will not be invested. This would, in Sadr’s assumptions, be equivalent to some five per cent of the total deposits, i.e. 500 dinars. The return in the interest-free bank would therefore be equivalent to the interest rate in a conventional bank (here 5,000) 4-[interest x risk of non-profit + interest x incomplete use of deposits] (here 500)= 5,500. This amount is then expressed by Sadr in relation to the overall profits of the bank, in this case twenty per cent or 20,000 dinar. This explains the last ratio offered: share of the depositor in the interest-free bank = 5,500/20,000 = 55/1,000 = 27.5% of profit.

29 For details, see the arithmetic example offered given by Sadr, IFB 59-62.

30 Istifa’ is translated by Schacht as’receiving, taking possession’, Introduction to Islamic Law, Oxford, 1964, pp. 138, 298.

31 The term used is hawala, literally transfer. See Schacht, Introduction, pp. 148-9;

Udovitch translates hawala as’bill of exchange’, and as’transfer of credit or debts’. Partnership and Profit, pp. 207-8.

32 This is related to the hadith on riba al-fadl stipulating the simultaneous exchange,’yadan bi-yad’.

33 Literally’innocent’ from obligation, see Schacht on bar a’a in contract of sale, Introduction, p. 153.

34 Schacht translates amana as’ trust, deposit, fiduciary relationship’, Introduction, q.v..; see also the comparison of Udovitch with the contract of mufawada, Partnership and Profit, pp. 104-7.

35 This is further developed in IFB Appendix 8.

36 See this volume, pp. 173-7.

37 The two reports mentioned are taken from the Twelve Imams Muhammad ibn’Ali al-Baqer, and’Ali ibn Musa ar-Rida, IFB 160.

38 Al-Islam Yaqud al-Hayat, see General introduction, nn. 73 and 75.

39 Discussed this volume, chapter 2.

40 Muhammad Baqer as-Sadr, al-Usus al-Amma lil-Bank fil-Mujtama( al-Islami (General Bases of a Bank in the Islamic Society), p. 11. [henceforth Usus]

41 See discussion of Iqtisaduna this volume, chapter 4, p. 131-2. On risk in the economy, there are more details in the section of Iqtisaduna entitled’ the role of risk in the economy’, pp. 572-5.

42 The word appears several times in the pamphlet, signe des temps. Usus, pp. 18,21, 24.

43 See generally C. Mallat ed., Islamic Law and Finance, London, 1988, and the literature cited; on Islamic financial institutions, V. Nienhaus,’The performances of Islamic banks: trends and cases’, in Ibid., pp. 129-70; on Islamic state banking, A. Mirakhor,’The progress of Islamic banking: the case of Iran and Pakistan’, in Ibid., pp. 91-116; J. Connors,’Towards a system of Islamic finance in Malaysia’, in Ibid., pp. 57-68.

44 Two prominent examples are Claude Cahen and’Abd al-Aziz ad-Duri. See in the large bibliography of their contributions: Claude Cahen,’L’histoire economique et sociale de l’Orient musulman medieval’, Studia Islamica, 3,1955, 93-115;’ Reflexions sur l’usage du mot" feodalite "‘ , Journal of the Economic and Social History of the Orient, 3, 1960, 2-20; Introduction a Vhistoire du monde musulman medieval, Paris, 1982; Jean Sauvagefs Introduction to the History of the Muslim East, Berkeley, 1965; Makhzumiyyat. Etudes sur l’Histoire Economique et Financiere de L’Egypte Medievale, Leiden, 1977;’Abd al-Aziz ad-Duri, Tarikh al-Iraq al-Iqtisadi fil-Qarn ar-Rabi’ al-Hijri (Economic History of Iraq in 10th Century Iraq), Baghdad, 1948; Muqaddima fit-Tarikh al-Iqtisadi al-’Arabi (Introduction to Arab Economic History), Beirut, 1969. In this tradition, see recently, B. Johansen, The Islamic Law on Land Tax and Rent, London, 1988.

For the methodological relationship between law and history in Islamic studies, see the remarks of Claude Cahen in’ Considerations sur l’utilisation des ouvrages de droit musulman par l’historien’, in Atti del Terzo Congresso di Studi Arabi e Islamici, Rome, 1967, p. 246.

45 E.g. S. Goitein and A. Udovitch.