Alhassanain(p) Network for Heritage and Islamic Thought

Session 21: Islam and Democracy (Part 1)

Law enforcers’ need for the permission of God

Some may ask, “Once we accept law, identify the channels and grounds for its implementation and are certain that in a certain case, for instance, a given law must be implemented, what is the difference between Zayd and ‘Amru being the law enforcer? We accept that divine law must be implemented in society, but why should God authorize the law enforcer?

If the above objection is expressed in the area of jurisprudence, it must be addressed through a juristic method and approach. But if in public, certain people express skepticism without considering the juristic foundations and research methodology in the subjects of Islamic jurisprudence and want to receive a reply which is for the average man, understandable and discernible by common people, we can reply to such people by citing instances from our social life. For example, in family life and environment, there are rules for family members.

For instance, one should not encroach upon the property of others. This rule should be observed even by children in relation to their toys and stationery. If one member of the family encroaches upon the property of another, he or she shall be reproached. Or, in relation to two families or neighbors, if one of your neighbors enters your house without your permission and uses some of your belongings, even if it does not bring about any harm to you, you will complain against his action. Even if he serves you, you still deem it your right to complain against him.

As another example, let us assume that a law or circular is to be implemented in an office, but the decree of the head or manager of the unit supposed to implement it is not yet issued. If a person comes, says he is a trustworthy and good man who knows the law well, takes a seat in the office, and engages in implementing the law, no one will allow him to do so even if he is the same person whose letter of appointment is on its way. This is because all men of wisdom have accepted the principle that as long as a competent authority does not authorize a person, he has no right to exercise legitimate or legal authority.

We can easily understand why in a society whose people have acknowledged His Lordship, a person who wants to rule without the permission of their Lord, is exactly like the one who wants to head a certain office without obtaining the permission of a competent authority. Even if his work is proper and good, he shall be reproached and even prosecuted. The people are also not obliged to obey him. According to Islam, the people are subjects and creatures of God and without the permission of their Master no one is authorized to interfere in their affairs, so only the person authorized by God has to implement His law.

It is for this reason that in accordance with the knowledge he acquired from Islam and Islamic sources, the eminent Imam (q ), the founder and architect of this Revolution and political system, would always explicitly write: “By virtue of the divine guardianship [wilayat-e ilahi ] I have, I do hereby designate you to this position.” In one case, he even further stipulated: “Do not listen to those who are against the path of Islam, who

regard themselves “intellectuals” and want to reject thewilayah al-faqih . If there were no suchfaqih ; if there were nowilayah al-faqih , there would betaghut . If it were not the command of God; if the president were not designated by thefaqih , then he is not legitimate, it means that he istaghut . To obey him is to obey thetaghut .”1 This is not a personal opinion but rather something deduced from the noble verses of the Qur’an andahadith , and at any rate, it is the opinion of the person who has founded this Islamic system.

Therefore, the law enforcer, even if he implements all the laws according to the Islamic standards must be authorized by God. This authority is sometimes specific in form just as in the case of the Messenger of Allah (s ), the infallible Imams (‘a ), those who have been personally designated by the Holy Prophet (s ), those who were appointed by the Commander of the Faithful (‘a ) during his caliphate as governors and rulers of the Islamic territories, and the designated special deputies of the Imam of the Time (may Allah, the Exalted, expedite his glorious advent) during the period of minor occultation [ghaybah as-sughra ].

In these cases, through specific designation and personal authorization, certain individuals were commissioned to declare and implement divine decrees in the realm of their responsibility. Yet, at other times, the permission or designation is general. That is, during the period of occultation and even at the time of the Imams (‘a ) from whom the helm of government was taken away, through general designation and authorization, competent individuals were introduced to implement the law of God. For example, Imam as-Sadiq (‘a ) authorized the Shi‘ahfuqaha to implement divine commandments and engage in administration in regions where people had no access to the Imam. This fact is necessarily established during the period of occultation because when the Imam of the given time was under surveillance or practicing dissimulation [taqiyyah ],2 he would generally designate individuals to address administrative affairs of people on his behalf. Is this practice not then necessary for the period of occultation when the people have no access to the Imam (‘a ) for centuries?

I do not intend to expound religious proofs and juristic basis for this subject. I only want to justify why in Islam the law enforcer must be designated by God and how God authorizes the law enforcer. We have stated that this authorization is either specific as in the case of certain personalities, or general as in the case of the duly competentfuqaha .

Regarding this theory, whether in the dimension of legislation or implementation of law, objections were expressed, the most important of which was that it is allegedly repugnant to the essence of human freedom. We refuted this argument in previous discussions. Another objection was in relation to implementation as thewilayah al-faqih system was considered inconsistent with democracy. Democracy is a system which has been accepted by all sensible people throughout the world. In practice, even the socialist countries failed to challenge democracy and had no option but to accept it. So, mankind today, at least in our age, has no option but to embrace democracy. The Islamic government project which is known as the

government ofwilayah al-faqih is, however, considered inconsistent with democracy.

Meaning of democracy and its functional shifts

At the outset, I deem it necessary to explain the term “democracy”. The literal translation of “democracy” is “government of the people” or “populism”. It means that the people themselves are involved in administration, legislation, implementation of law and the political affairs of society, and no one else is involved in enacting and implementing law. This is the meaning of the word “democracy”.

Democracy throughout history has been expressed in many forms. In the beginning, as far as history indicates, approximately five centuries before the birth of the Holy Messiah (‘a ), in Athens, the capital of Greece, this theory was advanced and put into action for sometime in such a manner that all people, with the exception of slaves and minors below the age of 20 used to be directly involved in their sociopolitical affairs. Of course, it was not compulsory and the people were free to engage or not in such an important activity.

At that time, the people used to live in big cities and express their opinion about the issues and concerns of their city. Debates and discussions used to take place on the basis of which, decisions would be taken and put into practice. This form of government in which no specific person or group was in charge of the administration but the people themselves was called democracy or government of the people. This form of democracy was implemented for sometime in Athens, the capital of Greece. Apart from the fact that philosophers and thinkers strongly campaigned against this method, describing it disparagingly and branding it as “the government of the ignorant”, it also faced numerous problems in practice. As such, it did not last long.

Such a method is impractical for big countries and populous cities because it is impossible for all the people to constantly get involved in social affairs. This method may temporarily be implemented in small cities, but in cities with a population of millions, all the people cannot decide the daily affairs of their city? This method was rejected until after the Renaissance another form of democracy was presented in which the people would elect their own representatives to take charge of the administrative affairs and the latter would rule on behalf of the former because direct involvement of the people was unfeasible. Since then, this theory earned many advocates and was gradually implemented in some countries until finally, during the 19th century this method of governance was accepted by almost all countries of Europe and other continents, and governments were established on this basis.

In our country also, this form of democracy is implemented. Practically, in all government organs and institutions the people get involved by participating in various elections and selecting of their own representatives, such as participation in presidential elections and elections of the Islamic Consultative Assembly, and selection of deputies by people to enact and approve bills, and also local council elections and the rest provided for in the Constitution. So, according to the second form of democracy which has

distinct features in every political system, the people get involved in their sociopolitical affairs by means of their vote and selection of the legislators and implementers.

Meaning of democracy today

Nowadays, democracy has earned a more specific meaning and a regime in which religion has no role to play is regarded as “democrat”. Of course, this form of democracy does not negate religion but hinders it from getting involved in sociopolitical affairs. It does not allow the law enforcers, while implementing the law, to talk about religion, and no executive order or circular to be issued on the basis of religious decrees and values. In reality, this form of democracy is anchored in the secular system which totally separates religion from sociopolitical issues.

Of course, sometimes, the legislators and executives themselves may be religious individuals, go to church every week and make a vow to the church. They may possibly be members of religious groups and engage in specifically religious activities in a private national or local capacity beyond the official government jurisdiction. But, in government and administrative affairs, legislation or judiciary, in managing the country or implementing laws, nowhere must religion have any role or function.

It can be heard in a country like France-which is known as the bastion of freedom and democracy-that any girl wearing the Islamic modest dress [hijab ] is proscribed from entering a school or university, because alienating religion is regarded as one of the features of democracy.

They say “Our system is secular and no symbol of religion should be seen in public institutions. Wearing a headscarf is a sign professing a religion and it must be disallowed in government institutions such as public schools. If a school is affiliated to the church or is private, there is no problem even if everybody wears a headscarf. However, in public schools and universities under the supervision of the government which give official diplomas, as well as in public offices and ministries, no symbol of religion must be seen.” This is a new interpretation of religion on the basis of which religious symbols and values are deemed in conflict with democracy.

According to the traditional interpretation and second form of democracy which means government of the people, if certain people are religious and want to practice their religious rites in offices, they should not be opposed because this practice is consistent with the desire of the people and based on the law enacted and implemented by the people themselves. Democracy demands that wherever they are, including schools, offices and ministries, the people must be free in their manner of dressing.

If the absolute majority of people are supporters of a religion and based on their religious inclination, want to choose a certain garment or want to perform their religious rituals, no one should hinder them. Once a law is passed by the will and desire of the people which makes performance of prayer in offices, ministries and universities mandatory, this is not in conflict with democracy because the people enact the law and they themselves implement it. According to the new interpretation of democracy, however, religious inclination of the people should not be manifested in sociopolitical matters.

Hegemonic system’s exploitation of new concept of democracy

According to the new interpretation offered and implemented by imperialist states to advance their interests and objectives, democracy is synonymous with a secular regime-a regime which never allows religion to interfere in its sociopolitical affairs. Even if the people themselves say, “We profess this religion and want to practice our religious rites in public institutions,” that will of the people is considered inconsistent with democracy.

It is for this reason that when an election was held in Algeria in which an Islamist party won and on the basis of the principles of democracy and laws of the country, it wanted to form a government and implement Islamic laws, the oppositionists, who felt that the said party was about to rule and establish an Islamic government in future, staged a coup d’état and after declaring the election null and void, apprehended and imprisoned the leaders of the party and abolished the party and declared it illegal. After many years, the party is still not permitted to operate. This is in spite of the fact that this Muslim country obtained independence from a colonial government by sacrificing millions of people for the preservation of its Islamic identity. Nowadays, it is in a miserable state. As we read in newspapers, everyday tens of people are brutally murdered in that country.

The unelected ruling clique is still more acceptable to the arrogant and imperialist countries than the rightfully elected government of the people. This is due to fear that another country would be established in the name of Islam. “If people accept Islam and elect an Islamic government through their vote, that is not ‘democratic’ because the people have an inclination toward religion,” it is argued. So, in the new interpretation of democracy, religion should in no way interfere in the sociopolitical affairs of people even to the extent that schoolgirls must not wear a headscarf. The same democracy can also be observed in Turkey.

The agents of imperialism in Muslim countries are inculcating the notion that all Muslim countries must be administered through this democratic method. That is, no more room would be left for religion in the national administrative affairs including legislation and implementation. Through cultural onslaught and penetration of universities, even in countries with strong and deep-rooted Islamic inclination they are trying to undermine the spirit of religious fervor and propagate democracy in this sense. By doing so, they imagine that after a few decades when the revolutionary generation will be replaced by the youth who do not know the principles of the Revolution, they will make the new concept of democracy prevail.

There are, thus, three interpretations and concepts of democracy:

(1) direct involvement of people in administrative affairs practiced in one of the Greek cities;

(2) involvement of people in government through election of their representatives, existing today in many countries including ours; and

(3) all dimensions of government, including legislation and implementation, separated from religion.

That is, to be democratic means to be secular.

Islam’s ideal form of democracy

As to which of these administrative forms is acceptable to Islam, we have said earlier that if democracy in legislation means that whatever is approved by the majority of people-that is, 50% plus 1-is a credible, official and binding law even if it were against the text of the Qur’an, then Islam does not accept such democracy in legislation. Islam that has its own explicit laws in various administrative affairs, judiciary, economics, management, and related to other organs of the country does not allow a law against the explicit text and fixed decree of the Qur’an to be recognized officially. To officially recognize such a law is tantamount to rejection of Islam.

What needs further explanation and which I promised to discuss is the executive dimension of democracy, the role of the people in electing those who want to enact the laws within the framework of Islamic foundations, viz. the deputies in the Islamic Consultative Assembly. In cases where Islam has not enacted fixed and permanent laws, there is the need to enact new laws for new issues and needs, Islam has authorized the legitimate government apparatus to enact necessary laws for this domain while observing the general principles and standards of Islam and not contradicting the framework of Islamic laws, labeled by the late Shahid (Ayatullah Sayyid Muhammad Baqir) Sadr as “free zone” [mantaqah al-firagh ]. The driving and traffic laws stipulate the side to move-right or left-and the speed of a vehicle. Evidently, the Qur’an and traditions have no text in this regard.

The people’s role in determining the legislators and executives that enact and implement temporary laws can be materialized by observing Islamic standards. In other words, democracy and the vital role and participation of people are practiced in our country observing limits and conditions set by Islam by electing those who qualify. Electoral candidates must be Muslims committed to Islamic laws and observe Islamic standards in enacting laws and rules. In addition to the conditions set for deputies in the Islamic Consultative Assembly, with the exception of a few deputies of religious minority groups, the rest of the representatives must be Muslims committed to observe Islamic laws.

Lest there were negligence and shortcomings and Islamic laws were not observed in enacting laws, a number of experts constituting the so-called Council of Guardians are duty-bound to conform the ratified bills of the Majlis to the Constitution and religious standards and then validate them. In the case of their nonconformity, the said bills are returned to the Majlis for review. This is the type of legislative and executive mechanism accepted in our country and no one opposes it.

Similarly, executives with the President at top must observe Islamic laws and standards. First of all, the President must possess the conditions, qualities and merits mentioned in the Constitution which are taken from Islamic laws, and in taking charge of the government he must be, so to speak, authorized by God, the Exalted in the sense that after garnering the majority vote and endorsement of the people, he must be designated by thewali al-faqih . In this case, his government shall be legitimate and credible. This is something which is implemented in our country.

With the aim of understanding the role of the people and the domain of their involvement in the Islamic system, let me cite an example. Let us assume that we were living during the caliphate of the Commander of the Faithful(‘a ) and in our own city we knew of a righteous person who deserved to be the city ruler and we endorsed him to the Imam (‘a ). After receiving the endorsement, the Imam (‘a ) possibly designated him as the new ruler. Now, if the majority of people had such endorsement, the Imam(‘a ) would highly regard their view and designate the said person as governor of one of the regions under his jurisdiction.

So, the role of the people in the government structure and administrative decision-making, in terms of theory and legitimacy, is that people decide who is the most meritorious in enacting or enforcing the law and then cast their vote in his favor. The vote of the people is equivalent to a recommendation to the leadership. In reality, it is a pact they forge with thewali al-faqih that if he designates the recommended person to the presidency, they will obey him. It is on this basis that during the time of the eminent Imam (‘a ), when the majority of people elected a person to the presidency, he would say, “I do hereby designate him, who is endorsed by the people, to be the President.” That is, “the vote of the people is like an endorsement for me to accept him.”

This is the theory of the Islamic government which has no contradiction whatsoever with the second meaning of democracy. It is functioning in our country since the Revolution and no (theoretical) problem has ever emerged. Yet, if democracy means that religion should have no role in the affairs of society and none of the religious symbols be seen in the government institutions, such a thing is incompatible with Islam!

Democracy in its third sense, as interpreted by the Global Arrogance that wants to impose it on others is absolutely opposed to Islam, for it means the negation of Islam. However, democracy in its second sense has been accepted by observing the conditions set by Islam for rulers, legislators, implementers, and judges. That is why the people should seriously elect individuals who deserve to legislate and implement laws, and thus, prove their cooperation and support for the Islamic state and regard themselves as participating in the affairs of the country. This form of democracy is accepted in Islam and practiced in our country. If there are violations in some cases, they are also committed elsewhere, and one should be vigilant lest they are repeated.

References

1. Ṣahifeh-ye Nur, vol. 9, p. 251.

2. Taqiyyah: prudential dissimulation of one’s true beliefs under conditions of acute danger to one’s life, property, or honor, a practice based on Qur’an, 3:28. As its observance depends on certain terms and conditions, it may be obligatory [wajib], recommended [mustahabb], abominable [makruh], or forbidden [haram]. For a discussion of taqiyyah, see Sayyid Saeed Akhtar Rizvi, Taqiyyah (Dar es Salaam: Bilal Muslim Mission of Tanzania, 1992), http://www.al-islam.org/taqiyyah; Al-Taqiyya/Dissimulation, http://www.al-islam.org/encyclopedia/chapter6b.html; and ‘Allamah Tabataba’i, Shi‘ite Islam (Albany, N.Y., 1975), pp. 223-225, http://www.al-islam.org/anthology. [Trans.]

Session 22: Islam and Democracy (Part 2)

Secular democracy and its philosophical underpinning

The new concept of democracy as being necessarily secular is advanced by statesmen in Western countries in which no trace of religion must be seen in any government institution. Religion can neither interfere in legislation nor law enforcers rule in the name of religion. This is why young women in Islamichijab are banned from entering public schools because the entrance of a person with a religious symbol means that the state supports him or her. Indisputably, this new concept is totally anti-religious. Instead of the label “democracy” used for it, it is appropriate to call it “anti-religion dictatorship” because it does not allow individuals to practice their religious beliefs and affairs in society and prohibits the practice of religious obligations in government institutions.

This method and approach, devoid of any philosophical foundation, has been advanced by the anti-religious politicians with the aim of thwarting the spread of religions, Islam in particular, in Western countries. Under the pretext of advocating democracy in countries affiliated to them including some Muslim countries, they are trying their best to adopt this approach. An example of this can be witnessed in Algeria and Turkey.

In order to prevent this approach from acquiring the image of true dictatorship and be promoted in the frame of a moderate and peaceful democracy, a philosophical underpinning has been considered to mitigate tension with religious elements.

The so-called philosophical justification is as stated in the Universal Declaration of Human Rights that all human beings are one, and so to speak, have no class distinction. Permission to observe religious rites in government institutions would be a kind of privilege accorded to religionists, whereas, all human beings must be treated as equals!

But this question remains unanswered: Why do they allow other social groups to do whatever they want and behave and wear attires in whatever fashion they like but deny the religionists the prerogative to wear special attire or cover their hair (thehijab ). This is actually a denial of freedom and negation of the rights of some citizens.

Fallacy in the philosophical foundation of secular system

This is how they justify what they are doing, but there is a profound fallacy in it for all citizens to be equal in citizenship is not a corollary of the equality of all human beings in humanity. The equality of all human beings in humanity is an issue which Islam has upheld before and more than the rest. As God says,

﴿يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُم مِّن ذَكَرٍ وَأُنثَى وَجَعَلْنَاكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا إِنَّ أَكْرَمَكُمْ عِندَ اللَّهِ أَتْقَاكُمْ﴾

“O mankind! Indeed We created you from a male and a female, and made you nations and tribes that you may identify one another. Indeed the noblest of you in the sight of Allah is the most God-wary among you… ” 1

The Qur’an categorically negates distinction and superiority between human beings, presenting them as children of the same parents, siblings without any distinction and superiority. This issue has never been mentioned in any other heavenly scriptures in such an eloquent manner. As Muslims, we also believe that all human beings are equal in humanity and humanness has no first or second class. As Sa’di say:

بنی آدم اعضای يک ديگرند که در آفرينش زيک گوهرند

The children of Adam who are of one essence in creation are parts of one another.

However, this does not mean that all human beings in all countries equally enjoy the legal rights of a citizen. As a principle in international law, it has been accepted throughout the world that citizenship has its peculiar conditions, rights and merits. A person might migrate from his country of origin and live for many years in another country which might benefit a lot from his services but he would not be granted citizenship in that country because of particular laws and rules.

Even if it is granted it might be a second class citizenship which does not accrue all the privileges of a native. This fact exists everywhere in the world. We do not have first and second class human beings but we may have first and second class citizens, and this is something which is also accepted in Islam.

We must be vigilant and aware that Western states present their dictatorship as “democracy” in order to realize their wicked motives. We should not be deceived by them. Advancing the new theory about democracy is actually a kind of dictatorship that deprives the Muslims of practicing their religious obligations in those countries.

This is while the Universal Declaration of Human Rights has stipulated that religion is free and all people are free in performing their religious obligations. No condition is made in the Declaration that religious symbols and practices should not be observed in government institutions, but whenever they want, the politicians interpret the law in their favor and talk about war in the name of peace and violation of the rights of others as protection of human rights. Everyday we witness their oppressive and deceitful acts on a global level.

Advancing democracy in the sphere of management

Three meanings of democracy have been mentioned, all of which are related to political philosophy, but some writers who portray themselves as “intellectuals” claim that in essence the concept of democracy has nothing to do with political philosophy for it is related to the domain of management. The simple reply to these individuals is that a survey will make it clear that there is no book of political philosophy in which democracy is not touched.

If the concept of democracy is not related to political philosophy, why is it extensively discussed in all political philosophy books? The secret behind this claim is that recently, liberal thinkers and writers of the West have presented a new definition of democracy to keep it out of the political vocabulary and insert it in other realms of social sciences.

They have asserted that democracy is meant to limit the power of the ruler and foster compromise among opposing groups and encourage conciliation among parties and groups, and it is not only related to administration but also applicable to management. For example, if there is a difference of opinion among managers of a company or among their subordinates, they must arrive at a consensus because persistence of this difference of opinion will not be beneficial for the company. So, in order to advance the interest of the company, they have to consult one another and finally arrive at an agreement, or uphold the majority decision. They call this the ‘democratic’ method.

Democracy is now a way of removing differences within an organization. Given this definition, democracy in its general sense is taken out of political philosophy and introduced in the sphere of management. Governance and administration is actually also a managerial task on a grand scale, but it has a specific domain and in order to expand the concept of democracy, they assert that whenever there is conflict between two groups a reconciliation in the above manner will be based on democracy. The explanation for this is that in the conflict between two groups, one group may dominate the other by force and impose its view. Certainly, this approach is undemocratic. But if they agree and finally uphold the majority opinion, that means putting democracy into practice.

We do not oppose the coinage or expansion of a scientific term, but it must not be forgotten that this concept is originally related to the realm of politics and extended to other domains. In social sciences, there are many similar concepts which were initially used in one field and after extending their meanings, applied in various contexts in other fields. For instance, the concept of “strategy” is used commonly in all fields. Basically, this term means “leading an army” [sawq al-jayshi ], used in military science, and “strategist” is the one who is in charge of planning and commanding the war. The area where an army encamps or stays or where an attack will commence is called “strategic area”.

Later on, this concept was gradually adopted by other sciences and is now used, in political discussions as “strategic policies”. Even in training and education and different types of management, “strategic issues” are tackled. For instance, we have provisions of the constitution that are “strategic” in nature such as the article that emphasizes the necessity of adapting laws of the country to Islam. Yet, it is astonishing that sometimes some elements talk about the Constitution as if it is above the Qur’an and divine revelation. At times, they also oppose it as if it is of no value to them at all.

Wherever the Constitution deals with honoring the will of people, they do not allow even the verses of the Qur’an to state anything against it; the Prophet (s ), infallible Imams (‘a ) and the Imam of the Time(‘a ) have also no right to oppose it! But the provision of the Constitution which stipulates that all existing laws in the country must be compatible with Islam is forgotten and to oppose it is declared lawful. They say, “The basis is the people’s vote!”

Is it not enshrined in the same constitution that laws to be enacted in the country must be compatible with Islam? So, if some thing isharam according to Islam, how can you afford to declare it lawful by citing the Constitution? Considering this constitution emphasizes the observance of Islam, how is it that it is free to insult sanctities and essential laws of Islam by invoking freedom of the press? The press is free within the framework of law, and not beyond it. When Islamic law regards it obligatory to honor religious sanctities and not to slight laws of Islam and mock God and the Prophet (s ) as it will be tantamount to apostasy, law on freedom of the press cannot declare such a thing lawful. The Constitution is originally codified to expound the concept of an Islamic Republic.

Paramount station of Islam and wilayah al-faqih in the Islamic Republic

During the first year of the victory of the Revolution, i.e. in 1979 when a referendum for the Islamic Republic was to be held, different options were suggested as to the forms of government from which the people could choose. Some of the selections were “republic,” “democratic republic,” “Islamic democratic republic,” and “Islamic republic”. But the Imam said: “‘Islamic republic’, no more, no less.” Ninety-eight percent of the people of Iran also voted for the Islamic republic.

That is, the Islamic description of the government cannot be removed and be replaced by the word “democratic”. Now, if democracy is something above Islam, why did the Imam not allow this word to be inserted in the name of the Islamic government? And if republicanism is the same as democracy, there is no more need for the label “democratic”. Why did they insist on the label “democratic republic” and why did the Imam and the people in obedience to him oppose it? It is obvious that democracy could have different meanings, and certain things beyond its meanings could be applied to republicanism which would be negated and reliance on public opinion would outdo Islam.

Our system is an Islamic republic whose pillar is supported by the people. It was these people who staged the Revolution and who will keep it going with its Islamic substance and framework. The late martyred professor Mutahhari (may Allah the Exalted, be pleased with him) has an explanation which serves as a guidance for us in this context. He used to say: “Republicanism speaks of the form of government while ‘being Islamic’ speaks of the substance of government.”

The substance of government is the implementation of the commandments of Islam, but its form is republicanism in contrast to monarchy. So, our regime will not be a monarchy. Rather, its form is republic while its substance is Islamic. Authenticity is with the Islamic concepts, laws and values, and we do not have anything below or beyond Islam.

The Imam used to say time and again that the legitimacy of every system and every government position in the Islamic Republic depends on the authority of thewali al-faqih , upon which the theory ofwilayah al-faqih is based. We have learned from thefuqaha , especially from the Imam, who

also confirms its rational and textual proofs. Since thewali al-faqih is the authorised successor of the infallible Imam (‘a ) who, in turn, is authorized by God, the legitimacy of the system comes with thewilayah al-faqih . Of course, this theory is not compatible with those who have been accustomed to Western culture.

We insist on this theory because this theory is consistent with the intellectual basis derived from monotheism and rooted in the Islamic viewpoint and not from the inclination of the clerical establishment. As I have explained before, the legislative Lordship of God demands that divine authority must be observed both in legislation and execution of laws; otherwise, a kind of polytheism is committed. This does not mean, however, that the people in this society do not have any role. The people have a total role in this system within the framework determined by Islam, and in this domain nothing else can replace the role and impact of the people. But one should make a difference between the legitimacy [mashru‘iyyah ] and acceptability [maqbuliyyah ] of a system.

The explanation for this is that since the Renaissance, there is no place in Western legal, philosophical and social discussions for God and religion. When, for example, they stipulate human rights in the Universal Declaration of Human Rights, the relationship between man and God is not mentioned there. If freedom of religion is also mentioned there, it is because as a choice, human beings have the right to choose any religion. There is no mention of truth and falsehood, or whether God exists or not.

Whenever social rights, including fundamental rights, civil rights and criminal rights, are stipulated for individuals, there is no association of those rights with God. It is never discussed whether God has rights over man or not; whether man has duties toward God or not. They do not like to consider God in issues pertaining to their rights, but if in accordance with our own beliefs, we want to base the legal system of our country upon the teachings of Islam and divine rights, they do not have any authority to deprive us of this right. As believers in God, monotheistic people and followers of Islam, we believe that in all legal issues-social, civil, criminal, and political-God must be taken into account. Above all rights is the right of Allah. With respect to Him, we have duties and responsibilities that we must discharge.

On the other hand, the rights of men are not the only discussed issue. In fact, rights and duties must be discussed together, the most important being the duty of man toward God. The right of legislative Lordship of God over human beings is for them to accept His laws in sociopolitical affairs. If a person does not believe in God, we will not compel him to accept Islam, but as Muslims we have the right to apply our beliefs in politics and the means of administering our country. In the constitution of our country, this has been accepted and as such it is significant to the highest degree for us. Our respect to the Constitution is the same as giving value to Islam.

Form of democracy acceptable to Islam

The second meaning of democracy has been accepted with certain conditions and qualifications. No legislative authority has the right to oppose the definite laws of Islam which is how we accept democracy. Meanwhile, concerning democracy as a method of solving differences, it

must be said that as long as Islamic values are sufficient to solve differences, they shall take precedence, but in case of differences where Islamic laws have no specific way of solving them and there is also no competent arbiter, the majority view shall be preferred.

For example, a number of people form a committee within the framework of law to decide an important matter and all believe in Islam and observe Islamic values, but do not arrive at a consensus on the issue as the majority has a certain opinion while the minority has another opinion and there is no basis to prefer one view over the other-the majority view will take precedence, and opposing majority view shall be considered an undue preference.

As such, whenever we have no preferable option, we can obtain a sound opinion from the majority view which will be credible and preferred. If through the majority view of ignoramuses, we can not obtain a sound opinion, preferring that opinion will be rationally reproachable and incorrect. This method is credible to a certain extent, but it is not correct to abuse it by placing the majority of people against a minority of experts. For example, let us assume that for sketching a military plan there are ten military experts and one thousand common people who are unfamiliar with military issues.

If attention is given to the view of common people who are unfamiliar with military issues while the view of experts is rejected, this act is unreasonable. Every intelligent person says that the view of the experts takes precedence over the view of non-experts. Thus, democracy as a means of solving differences with certain limits and conditions is credible, but as the basis of giving preference to every majority over every minority it is not credible

Reference

1. Surah al-Hujurat 49:13.

Session 8: An Elucidation of the Structure and Form of Government

Status of elemental and evidential definition

In this session our discussion is about the structure and form of the Islamic government. Along this line, I deem it proper to narrate a recollection from the Great Leader of the Islamic Revolution in Iran, Hadhrat Imam Khomeini (q ). During the beginning of the Revolution foreign reporters asked the Imam, “After overthrowing the monarchical government, what government and regime will you establish?” He replied, “A government like that of the Commander of the Faithful (‘a )”.

Defining and describing the Islamic government to reporters with a particular culture and social fabric and no mental preparation to grasp Islamic concepts in view of their fundamental differences with us in this context, required many hours. Yet, the Imam gave them a complete and convincing answer in one sentence, because by knowing the distinctive features of the government of the Commander of the Faithful (‘a )-which is known to both friends and foes, and to know which does not require much extensive study and examination-the model of our government could also be known.

This type of explanation and definition, i.e. evidential definition, is the simplest way of describing the nature of a thing to the masses because understanding intricate concepts is difficult for them, so by indicating external manifestations and samples, they understand better. For example, in order to explain electricity, we show them an electric light or an electric device. In this type of definition, the characteristics, properties and salient features of a thing are not mentioned. In the academic and scientific circles, however, the definition must be derived from the principal or secondary features which describe the genus and quality mentioned in logic. In this kind of definition, initially the general and broad meaning is mentioned and then the specific meaning that excludes other types.

Another way of identifying the nature of a thing is to consider the elements. That is, the essentials and features of a thing are examined and their totality serves as the definition of that thing. In view of the number and scope of the essentials and features, any person will conclude that any thing having those features has the nature under consideration.

Islam and theory of separation of powers

The macrostructure of the Islamic government and its basic features, or the Islamic theory on politics can be defined in one sentence. The Islamic theory on politics is: all aspects of politics and government are divine, and inspired by the Source of revelation. This point determines the Islamic nature of the system and government.

In describing comprehensively the Islamic government it is necessary to consider the theory of separation of powers mentioned in the philosophy of law. During the last centuries there were intense disputes and conflicts among legal philosophers over concentration or separation of powers. These were on whether all powers should be in the hands of an individual or

group, or powers should be separated from one another and every person or group should be concerned with only one power.

Finally, after the Renaissance, particularly after Montesquieu-who wrote a major treatise entitled “The Spirit of the Laws” (1748) in which he emphasized separation of powers-legal philosophers arrived at a consensus on separation of powers and their three divisions, viz. the legislative, the judicial and the executive. These were considered as the main branches of democratic and popular governments.1 For each of the powers a distinct realm and area was taken into account so that none of the powers was authorized to interfere and meddle in another’s domain and their independence officially recognized. After the separation of powers, a definition was presented for each of them. We shall briefly mention their functions below:

Legislative power

One of the important pillars of government is the legislative. In view of the continuous change in social life and the need to formulate appropriate laws for every change, a group of individuals sit together, and, after discussion and deliberation, enact laws and regulations for the management of society, which are official and binding.

2. Judicial power

After the codification of laws and their official recognition and accreditation, there is a need to consider a branch of government and apparatus to adapt general laws to particular cases, to identify rights and duties, and to remove differences and disputes. In case of a dispute among citizens, or among organs, or between the citizens and the government, as well as in relation to the violation of the rights of people, the only authorized agency to adjudicate, attend to and adapt laws to those cases is the judicial power. Mere ratification of laws in parliament cannot solve any problem, because in times of dispute and discord, everyone deems himself rightful and interprets the law in his favor.

3. Executive power

Undoubtedly, In order to achieve its objectives, society is in need of law, but all people do not observe the laws. In fact, there are various motives to violate them. The law needs an executive power which possesses sufficient clout to implement the rules and regulations. The executive power is expected to implement laws, deter violations and implement judicial decrees passed in judicial courts. Along this line, if naked force is needed to implement laws and punish violators and criminals, disciplinary forces can be employed.

We briefly stated the theory of separation of powers in democratic and popular systems. We do not intend to explain the Islamic viewpoint on the theory of separation of powers but we deem it necessary to note that in the Constitution of the Islamic Republic of Iran, the principle of separation of powers has been accepted, while the principle ofwilayah al-faqih , which emanates from the Islamic nature of the system, serves as the point of connection between the powers. Legitimacy of powers in the Islamic system lies in the Islamic and divine structure, and in a sense in their connection to

the Origin of creation, butwilayah al-faqih is the system’s link to God and its basis of legitimacy.

Once we talk about the enactment and implementation of laws in the realm of Islamic political system and claim that the aggregate of approved laws and rules should be Islamic and religious, we make it clear that Islam is concerned not only with issues pertaining to prayer and fasting, worship and supplication, but it is a comprehensive code of life that embraces social law, corporate law, civil law, commercial law, international law and other laws needed by society.

Thus, as principle and rule, we have accepted that Islam has social laws that bind the government to regard them as credible and strive to implement them. According to Islam if a government neither regards the laws of Islam as credible, nor strives to implement them, it is an illegitimate government.

Skepticism on alleged impotence of Islam in social administration

Here the expressed skepticism is that man is increasingly in need of ample new laws. Indisputably, in the text of the Qur’an, theSunnah of the Prophet (s ) and the sayings of the pure Imams (‘a ) not all the laws addressing the needs of the day can be found. Nowadays, man needs a set of laws whose subjects did not exist during the early period of Islam, for which specific rulings need to be issued.

For example, let us consider the laws pertaining to airspace and the air jurisdiction of countries. Does an airplane have the right to enter the air jurisdiction of another country with the permission of its authorities or not? Such laws basically do not exist in the Qur’an, the Prophet’sSunnah and sayings of theAhl al-Bayt (‘a ) because at the time, there was no airplane to be discussed.

The same applies to traffic and driving rules as there was no car at the time as well as laws on seas and outer space and other subjects and there is a need for legal experts and legislators to enact appropriate laws for them after thorough examination and contemplation.

Given the fact that the said laws that address all needs of society do not exist in the Qur’an and theSunnah , how can it be claimed that Islamic and divine laws must be implemented in society when in fact Islam has no law in so many areas?!

Society is in dire need of such laws, which we cannot find in Islamic sources. What options do we have? How can we consider ourselves as bound by Islamic laws?

What has been mentioned made those who have no faith in Islam express skepticism in religious laws as impractical and insufficient to administer society, and suggest more efforts be exerted on enacting and implementing man-made laws. In order to portray the subject as confusing and complicated, they expressed the above skepticism in various forms, and people also exacerbated it for different motives.

Undoubtedly, their goal is to undermine the Islamic government and to inculcate the notion that Islam cannot administer society. Therefore, the plant if the Islamic Revolution and Islamic government and emphasis on it

is futile and the idea of “Islamization” of the government should be forgotten, because it is not feasible. Unfortunately, some sympathizers of the Islamic Revolution and followers of Islam have also been influenced by this skepticism. It is necessary to present an appropriate reply so that, they remain faithful to Islamic laws, and find solutions to cases in which society needs a law which has no precedence in Islamic sources.

Types of laws and necessity of enacting variable laws

In reply to the above skepticism, it is necessary to explain at the outset that law has a general and broad meaning which also includesnatural laws such as laws on physics, Lavoisier’s2 law on chemistry, Newton’s law of gravity and Einstein’s law of relativity. This group of laws that exist in nature and can be empirically proved are discovered by scientists and are not enacted. These fixed and actual laws are related to natural phenomena, and have nothing to do with legal, political and social laws.

Similarly, we are not referring torational laws such as laws on logic, philosophy and mathematics. We are referring toenacted laws which are technically called “conventional laws” [qawanin-e i‘tibari ]. Of these laws those that are credible and can be implemented, provided they are enacted by a credible authority, can be divided into three types:

The constitution

Constitution means a set of relatively permanent laws codified by competent authorities for a country in accordance with its culture and traditions. These relatively permanent laws are binding for a long period and considered as the basis and foundation of managing society. In view of their relative permanence and immunity from regular changes, these laws are general and limited; thus, the constitution of every country consists of some basic and important articles.

As such, in the constitution there is no room for detailed and specific laws which cover extensive and diverse needs, and are subject to amendment with the emergence of new circumstances. The Constitution is general and permanent in nature and detailed laws are not included in it except those detailed and limited laws which, on account of their importance and special status, give stability to it.

2. Laws ratified by parliament

The second type refers to the laws ratified in the Majlis or parliament. Since some countries have another house of legislation called senate or any other term, in addition to parliament, the laws ratified by the said house of legislation are also included in this type of laws. In our country, apart from the Islamic Consultative Assembly (Majlis) which passes bills needed to administer the country, the Council of Guardians, which is similar more or less to the Senate in other countries and to a constitutional court and consists of a group of jurists and legal experts, conforms the bills ratified by the Islamic Consultative Assembly with the Constitution and religious law. In case of inconsistency with the Constitution and the religious law, it refers these ratified bills back to the Majlis for review.

3. Laws ratified by cabinet

In addition to the laws ratified by parliament, in every country there are binding rules and regulations ratified by other organs, for example, the executive orders issued by the cabinet (executive branch). The constitution has rested authority to the cabinet to ratify laws in specific cases. Similarly, in certain cases the president can also personally take decisions. These executive orders and presidential decrees need not be submitted to parliament for ratification as they are automatically deemed legally binding. Also, bylaws and circulars approved by concerned authorities and officially communicated to offices and executive offices are also called laws and the government is bound to implement them.

Thus, in our country as in some other countries there are three types of laws: (1) constitutional, (2) legislative; laws ratified by the Islamic Consultative Assembly (Majlis) or parliament, and (3) executive orders, presidential decrees, bylaws and circulars approved by authorities legally authorized to do so.

At no time and nowhere in the world are these laws and bylaws ratified all at once; in view of changing circumstances, statutory laws and executive orders are amended and reviewed. Today, circumstances may require the Islamic Consultative Assembly to enact a law, and tomorrow circumstances may change and the said law might be amended and reviewed. In this manner, executive orders have to be amended and reviewed with change of circumstances. Also, when a new president assumes office, it is his prerogative to amend or annul previous executive orders.

Of course, those whose primary concern is the interest of society try their best to codify orders with utmost care to ensure that they are devoid of all possible errors. Naturally, when we say that the laws must be Islamic, it does not mean that all laws ranging from the Constitution to the statutory laws and executive orders must be explicitly derived from the Qur’an.

Meaning of Islamic nature of laws

In explaining the meaning of the Islamic nature of laws and orders, it is important to pay attention to the process of enacting common laws. For example, in codifying and approving bylaws and orders the cabinet or executive power must act within the perimeter determined for it by the Islamic Consultative Assembly and not go beyond it. In other words, the extent of the executive power’s prerogatives has been stipulated by the Constitution and the Majlis’s statutory laws, and the executive orders should be within this framework.

These orders should manifest the generalities reflected in the Constitution and the laws ratified by the Majlis. Thus, initially, generalities are described in the Constitution and statutory laws whose meanings the cabinet or the concerned authority in certain cases has to interpret within the framework of executive orders. The cabinet cannot act unconditionally on its own without any frame of reference. In fact, its executive orders must be within the framework of the Constitution and laws ratified by the Majlis.

The laws ratified by the Majlis, in turn, must be approved and endorsed by the Council of Guardians. That is, the Majlis must also act within the framework of the Constitution and in this way, its ratified laws will be considered credible, enjoying executive guarantee. Therefore, the credibility

of executive orders and their being binding depend on their conformity with the Majlis’s statutory laws and the credibility of statutory laws means that they are within the framework of the conditional law of the country.

The credibility of the Constitution of the Islamic system is based on its consistency with the legislative will of God the Exalted. As such, the entire laws and decrees have a linear relationship and they are credible, provided that this hierarchy is observed in such a manner that it ends up in Islam and the legislative will of God. It is not in the sense that all the executive orders, circulars and statutory laws can be explicitly found in the Qur’an and theSunnah .

Since God delegated certain prerogatives to the Holy Prophet (s ) to promulgate specific laws and decrees in certain cases, these laws and decrees are credible and binding because they are based on the permission and will of God. It is obligatory to obey and act upon them on account of the decree of God on the necessity of obeying and following him. Under the aegis of this decree of God, the laws and orders promulgated by the Messenger of Allah (s ) are credible and, at the same time, it is obligatory on others to obey and act upon them; otherwise, merely to obey the orders of the Messenger of Allah (s ) without divine sanction is not obligatory.

So, the laws which God, the Exalted, has directly enacted and explicitly mentioned in the Qur’an occupy the foremost degree and are intrinsically credible. The laws enacted by the Holy Prophet (s ) in certain cases by God’s leave occupy the next degree and their credibility is equal to that of God’s command. Similarly, the credibility of the laws which the infallible Imam (‘a ) enacts and the orders he gives emanate from the decree of God because God and the Prophet (s ) consider it obligatory to obey the Imam.

Now, assuming that we were living in an Islamic territory under the reign of the Commander of the Faithful (‘a ), we would have considered it incumbent upon us to obey him. If the Imam (‘a ) appointed a person like Malik al-Ashtar as the governor in our region saying, “Act upon his orders and do not defy them, for whoever obeys him actually obeys me,” the mere orders of Malik al-Ashtar would not be binding for the people because he was like other people, but obedience to him would have been obligatory and his orders binding because he was designated as governor by the infallible Imam (‘a ) who, in turn, had been designated by God through the Prophet (s ), and to obey him would bewajib .

However, laws and orders issued by a governor, designated by an infallible Imam, are considered laws of a third degree. As an analogy, the governor is like an appointed official whom the Islamic Consultative Assembly has granted powers on the basis of which he has authority to issue circulars and instructions, and on account of those delegated powers, his orders are binding. Similarly, the Majlis has acquired its credibility from the Constitution and its statutory laws acquire credibility under the auspices of the Constitution.

The credibility of the constitution in other countries emanates from the will of the people. But we believe in a higher station and reference with respect to the Constitution. We believe that the credibility of the constitution should emanate from the will of God, and the Prophet (s ), an infallible

Imam (‘a ) or any person like Malik al-Ashtar, designated by one of the infallible Imams (‘a ), has to endorse it. Therefore, the credibility of law should emanate from the words of God, the Prophet (s ), an infallible Imam (‘a ), and then any person designated by an infallible Imam. This is the logic and theory of Islam.

In the time of occultation [ghaybah ] of the infallible Imam, since thewali al-faqih has been chosen through a general designation by the infallible Imam, hiswilayah is endorsed by the Imam and acquired credibility, thus, his approval is the source of credibility of the constitution; otherwise, the constitution by itself is questionable. It is debatable as to where its credibility emanates from and who has the right to amend it. On what basis does a minority that has not voted for a certain law abide by it? And there are many other questions. However, when we say that this law has been declared credible by one formally designated by the infallible Imam, there is no room for any more questions.

Process of legislation in the Islamic government

It is clear in the theory of Islamic government that the original credibility of law comes from God, and the words of anyone, like the Prophet (s ), who is credited by God, become binding. In turn, the words of anyone who is designated by the Prophet (s ), or the Commander of the Faithful (‘a ), are equally binding. Similarly, the laws and decrees issued by anyone who is designated by the infallible Imam (‘a ) through a general or specific appointment shall be Islamic and sacred because they have been approved by God.

Of course, as we have said, in the Islamic government this approval may take different intervals. The credibility of approval of thewali al-faqih emanates from the approval of and endorsement by the infallible Imam (‘a ) and the credibility of decrees and approval of the infallible Imam, in turn, emanates from the approval of and endorsement by the Prophet (s ). Finally, credibility of the Prophet’s approval is confirmed through an explicit text [nass ] of the Qur’an where God says:

﴿يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللّهَ وَأَطِيعُوا الرَّسُولَ وَأُوْلِي الأَمْرِ مِنكُمْ﴾

“O you who have faith! Obey Allah and obey the Apostle and those vested with authority among you...” 3

and in another verse:

﴿النَّبِيُّ أَوْلَى بِالْمُؤْمِنِينَ مِنْ أَنفُسِهِمْ﴾

“The Prophet is closer to the faithful than their own souls….” 4

Thus, the aforementioned link has a perfectly logical foundation for the members of an Islamic society and those who believe in the truthfulness of God, the Prophet(s) and the infallible Imams (‘a ). As we have expounded earlier, we have to talk on the basis of our audience’s convictions and beliefs and through their language. For this reason, if a person does not believe in God and in the truthfulness of the Messenger of Allah(s) , or is doubtful of the infallible Imam (‘a ), we need to discuss this issue in a different way.

Initially, we have to deal with the fundamental and essential principles of Islam, and then after proving them, tackle other subjects, including political and administrative issues, on the basis of those principles. Of course, this form of legislation, or the other usual forms can also be examined on the basis of their value for the benefit of society.

Legal status delegated in the Islamic government

In the Islamic political theory, besides the fact that all principles of law must be enacted by God, all laws and orders be approved by Him, the Messenger of Allah (s ), an infallible Imam, or his general or specific successor, the implementer of the law also has to be designated by God to acquire credibility through this system of guardianship. (The judicial organ also has an executive function; it must be regarded a righteous reference authority in cases of disputes and differences and check the law prior to its implementation. Therefore, an independent and special status has been given to it.)

At the time when the Prophet (s) or an infallible Imam was present, he had to personally hold the reigns of government or designate someone to implement the law; for example, Hadrat ‘Ali (‘a ) appointed Malik al-Ashtar as the governor of Egypt in order to implement the law there. However, in this period ofghaybah when the people have no access to the infallible Imam (‘a ), the responsibility of implementing the law lies on the shoulders of the one who has been appointed by the infallible Imam through a general designation, and this will lead us to the theory ofwilayah al-faqih about which we will discuss later, God willing.

It should now be clear that in Islamic political theory and administrative structure, just as the law should be linked to God, the implementer of the law should also be linked to God and be appointed by God either through a general or specific designation.

The judicial organ should be equally linked to God and the judge should be appointed by God either through direct, or indirect and general designation. In either case, if the judge has no link whatsoever to God, his decree shall have no credit at all. The Holy Qur’an has pointed out God’s direct designation of Hadrat Dawud (David) (‘a ) to judge among men:

﴿يَا دَاوُودُ إِنَّا جَعَلْنَاكَ خَلِيفَةً فِي الْأَرْضِ فَاحْكُم بَيْنَ النَّاسِ بِالْحَقِّ﴾

“O David! Indeed We have made you a vicegerent on the earth. So judge between the people with justice….” 5

And regarding the Prophet of Islam (s ), it says:

﴿إِنَّا أَنزَلْنَا إِلَيْكَ الْكِتَابَ بِالْحَقِّ لِتَحْكُمَ بَيْنَ النَّاسِ بِمَا أَرَاكَ اللّهُ﴾

“Indeed We have sent down to you the Book with the truth, so that you may judge between the people by what Allah has shown you.” 6

It also states:

﴿فَلاَ وَرَبِّكَ لاَ يُؤْمِنُونَ حَتَّىَ يُحَكِّمُوكَ فِيمَا شَجَرَ بَيْنَهُمْ...﴾

“But no, by your Lord! They will not believe until they make you a judge in their disputes.” 7

In sum, in the Islamic political theory, sovereignty, legislation and the administration of society in all its dimensions and aspects must emanate from the legislative will of God.

References

1. Sometimes, in contrast to the common term “government” applied to the three powers, “government” is only applied to the executive power. Of course, this is a specific term which is used in limited cases. Usually, “government” is used in its common and broad meaning.

2. Antoine Laurent Lavoisier (1743-1794): French chemist, who is considered the founder of modern chemistry. [Trans.]

3. Surah an-Nisa’ 4:59.

4. Surah al-Ahzab 33:6.

5. Surah Ṣad 38:26.

6. Surah an-Nisa’ 4:105.

7. Surah an-Nisa’ 4:65.