Roozbeh Safshekan, University of Alberta and Farzan Sabet, The Graduate Institute, Geneva
The key subtext of the raucous competition between the moderate and conservative political currents in the 2016 Assembly of Experts (herein Assembly) and 2017 presidential elections in the Islamic Republic of Iran was the question of who will be the next guardian jurist once the 78-year-old Ayatollah Ali Khamenei passes on. Under the Ayatollah Ruhollah Khomeini’s conceptualization of the Guardianship of the Jurist, the political-religious theory at the heart of the Iranian political system, the guardian jurist is the single most important center of power. One debate that has gained increased prominence in the course of these elections is just who, precisely, gives legitimacy to the guardian jurist. One side of the debate, known as the election school, contends that the guardian jurist derives its legitimacy from the popular will, channeled through the Assembly. This body of Shia jurists, which is elected by general ballot for an eight-year term, is in theory empowered to choose, supervise, and remove the guardian jurist. Yet it has only chosen a guardian jurist once (after the passing Ayatollah Khomeini in 1989) and has seldom performed its supervisory and removal functions. This is in part because the Islamic Republic has been dominated since its foundation by the other side of this debate, known as the installation school, which maintains that the guardian jurist’s legitimacy is derived from God, who guides the Assembly.
This theological debate may have very real political implications for Iran today. The empowerment of one school vis-a-vis the other may shape whether the Assembly – and by extension the next guardian jurist – places greater emphasis on the popular will or not. The question of the source of legitimacy of the guardianship of the jurist is discussed in this paper in three parts. Part one explores three key reference points in the historical genealogy of this debate by highlighting its origins in the Shia political jurisprudence of Sheikh Morteza Ansari, the Tobacco Revolt (1891), and Constitutional Revolution (1905-1911). Part two traces how this genealogy found its way into Ayatollah Khomeini’s conceptualization of guardianship of the jurist. There is a degree of contradiction in the latter in terms of the source of legitimacy of the guardian jurist, contradiction which manifests itself in the debate between the election and installation schools today. Part three examines how this debate has reemerged during the 2016 and 2017 election cycles around the broader question of who becomes the next guardian jurist.
I. Shia Political Jurisprudence: From the Sheikh to the Constitutional Revolution
Ayatollah Khomeini’s conceptualization of the guardianship of the jurist and the debate between the election and installation schools are grounded in Shia political jurisprudence, itself a subset of Shia jurisprudence. The latter is a problem solving system, which receives inputs (questions) and creates outputs (answers). The four components of this system are the Qur’an, the Sunnat (Tradition, or the words and deeds of the Prophet Muhammad and the Twelve Imams), Aql (Reason), and Ijma (Consensus). This means that when a jurist is confronted with a question, he uses his reason to interpret the Quran and Sunnat and answer the question. A jurist will compare his answer with past and present jurists to reach a consensus on the best answer if possible. Political jurisprudence, then, is the application of this problem solving system to political questions. Sheikh Morteza Ansari, generally referred to as the “Sheikh,” was among the key figures who paved the way for Shia jurists to enter politics through his novel application of Shia jurisprudence to the question of the proper role of jurists in politics.
The historical role of Shia jurists in Iran until the modern era was twofold: Qaza (judicial) and Ifta (issuing religious commandments or fatwa). This means that the jurist was tasked with acting as a judge in legal disputes using Shari’a (Islamic law) and issuing fatwa based on questions asked of them. They were thus limited to these roles and stayed out of politics. This was for two main reasons. First, there could be no legitimate political system after the Qeybat (occultation), or the miraculous disappearance of the Mahdi, Shia Islam’s messianic savior and the last legitimate political leader of the Shia community. This forced Shia jurists into a position of quietism, because all political systems were illegitimate and participation in them was prohibited. Second, as the Shia often found themselves, with rare exceptions, living as minorities in Sunni polities, it became both religiously necessary and politically prudent to stay aloof from politics.
The Sheikh revisited the question of the role of Shia jurists in society and specifically politics in his seminal work al-Makaseb. Although other jurists throughout history have addressed the issue of the Shia clergy’s social role, the Sheikh is the most important religious figure to have done so and has had a profound influence which continues to this day. He viewed fighting injustice as central to a jurist’s mandate. Up to this point, fatwas had been issued on an ad-hoc basis and generally at a local-level. The Sheikh theorized and systematized the use of fatwas in fighting injustice. Furthermore, he pioneered political jurisprudence through the use of fatwas to fight injustice in politics by placing a religious straightjacket on and pressuring political authorities. Thus, while formally rejecting a political role for Shia jurists, he revolutionized Shia jurisprudence by opening the path for their intervention in politics through fatwas.
The Sheikh’s political jurisprudence was put into practice by his disciples, the first well-known case being the Ayatollah Mirza Hassan Shirazi’s (1814-1896) fatwa banning the use of tobacco in 1891 to undermine a 50-year tobacco concession given to the British by Qajar ruler Naser al-Din Shah in 1890. By issuing a fatwa that declared the use of tobacco haram (prohibited according to Sharia), Shirazi mobilized Iranian Shia against the use of tobacco, exerting pressure on the Shah to withdraw the concession. The path paved by the Sheikh’s formulation of political jurisprudence and Shirazi’s application of it during the Tobacco Revolt began to normalize the notion that jurists had a role to play in politics. In the Constitutional Revolution of 1905-1911, the creation of a parliament to restrain the power of the monarch forced jurists to mobilize on both sides of the revolution, creating one of the earliest incarnations of political Islam.
One group of jurists, led by Ayatollah Mohammad-Hossein Naeni, continued the Sheikh’s analysis, stating that while in the absence of the Mahdi there could be no legitimate political system, Mashrutiat (constitutionality) was the least worst option. In his famous treatise Tanbih al-Umma wa Tanzih al-Milla, Naeni maintained that when choosing between an unaccountable tyrannical system and an accountable constitutional one, the latter was the lesser of two evils. From Naeni’s point of view, a system based on the whims of an individual had the potential to do more harm to the Shia than one based on the popular will. However, should the popular will contradict Islam, Naeni went one step further than the Sheikh by asserting that jurists had to be present in parliament to prevent this through participation in its deliberations. Another group, led by Sheikh Fazlollah Noori, opposed constitutionality because they believed the popular will could be more dangerous to Islam than a despotic government. Constitutionality could only be less harmful to the Shia if its laws and policies adhered to Shari’a as interpreted by jurists. In contrast to Naeini, Noori argued in his infamous treatise Hormat-e Mashruteh that the only way this could be prevented was for jurists to actually lead parliament and have a veto over its decisions. This anti-constitutionality is called Mashrutiat-e Mashrue (Sharia constitutionality).
II. The Ayatollah Ruhollah Khomeini and the Guardianship of the Jurist
The evolution of Shia political jurisprudence from the Sheikh to Naeni and Noori opened the door for jurists to preside over their historical domain of the judiciary, influence politics through fatwas, and take executive and legislative authority through control of parliament. The Ayatollah Ruhollah Khomeini took this process to its logical conclusion. He had entered political life in reaction to Mohammad-Reza Shah Pahlavi’s White Revolution, a series of socio-economic reforms that weakened the power of the Shia clergy. In exile for his leadership of the opposition, Khomeini reflected on the relationship between Shia jurists and the political system by posing a simple but consequential question: Why would God abandon the Shia and leave them without the means of establishing a just and legitimate government during the Mahdi’s occultation?
Khomeini’s answer radically diverged from the juridical consensus that had existed for nearly the entirety of Shia history. He concluded that God would not leave the Shia without the means to establish a just and legitimate government, but that throughout history circumstances had not allowed it. He saw this as in part being the failure of Shia jurists themselves. But if a just and legitimate government was possible, what should it look like? This would be his most radical answer, contradicting the Sheikh and Naeni’s quietism and going beyond even Noori. For Khomieni it was not sufficient for Shia jurists to control the judiciary and oversee the legislative and executive branches. A just and legitimate government was one which adhered to Shari’a in every respect and served as a placeholder for the Mahdi during his occultation. The only group qualified to establish a just and legitimate government based on Shari’a were jurists. He formulated this insight in his 1970 treatise Islamic Government: Guardianship of the Islamic Jurist, in which he envisioned jurists overseeing the entire political system. It should be noted that Khomeini and his followers represented only one faction among the Shia clerical establishment before and during the Iranian Revolution of 1979. As Ali Kadivar points out in his contribution to this series, there were other prominent figures “who either believed in ideas of the Constitutional Revolution, or believed in the clergy’s quietism and lack of any interference in politics.”
Khomeini’s pre-revolution notion of Islamic government, in line with Noori, emphasized the authority of jurists, but did not see a place for the popular will, as Naeni had envisioned. The guardian jurist, who had to be an expert in Shari’a and possess a sterling reputation among jurists, would wield immense power over the political system. Confronted by the realities of leading a revolutionary movement after 1978, however, Khomeini the jurist was forced to become Khomeini the revolutionary. In having to incorporate one of the main demands of the revolution, democracy, Khomeini appealed to the only other source within Shia Islam he could: Naeni’s concept of constitutionality, and declared that: “The goals are those which I have alluded to in my speeches and declarations: a) Destruction of the Pahlavi regime and the evil institution of the monarchy and b) Establishment of an Islamic Republic based on Shari’a law and founded on the nation’s votes.”
After the referendum of April 1979, which created the Islamic Republic, this contradiction within Khomeinism manifested itself in the new state. While the guardian jurist is appointed by the Assembly of Experts, an elected body of jurists who, in theory, can supervise and remove him, the office is supreme over the state. The constitution empowers the guardian jurist with broad authority. He can set the general guidelines for the political system, supervise policy implementation, and exert profound influence over the three branches of government. As commander-in-chief, he can declare war and peace, mobilize the armed forces, and appoint their commanders. Neither the Sheikh, Naeni, or even Noori had ever conceived of jurists wielding such immense power in the manner articulated by Khomeini.
The contradiction in Khomeinism between the immense power of the guardian jurist and the popular will manifests in the Islamic Republic today in the debate between the Grand Ayatollah Hussein-Ali Montazeri (1922-2009) and the concept of mashru’iat-e mardomi or nazariy-e entekhab (popular legitimacy or election school), and Ayatollah Mohammad Taqi Mesbah Yazdi and the concept of mashru’iat-e elahi or nazariy-e nasb (divine legitimacy or installation school).  The election school maintains that the legitimacy of the guardian jurist comes from the popular will through elections. Acting through the jurists of the Assembly, the people can elect, supervise, and remove the guardian jurist. In contrast, the installation school “argues that the Guardian Jurist is solely designated by the Mahdi (the Hidden Imam) rather than by the people and that his command (hukm) is obligatory for all. The people’s only prerogative is to “discover” (kashf) the guardian from among qualified jurists but they have no say in accepting or rejecting his decisions and have no right to participate in decision-making for the affairs of state.”
In attempting to resolve the dispute over the source of the guardian jurist’s legitimacy, Khomieni’s statements serve as a major source of interpretation and can often be taken to support both sides. For example, in appointing Mehdi Bazargan as prime minister of the Islamic Republic, and subsequently with presidents Abol-Hassan Bani-Sadr, Mohammad-Ali Rajai, and Ali Khamenei, Khomeini declared: “I who have appointed him, am a person who on the guardianship that I have derived from the Share-e Moqadas (holy creator of divine law)…The nation must obey him. This is not a normal regime, it is a divine regime and must be obeyed, opposition to this regime is opposition against the divine, is rebellion against the divine.”  This raises the question: Can the guardian jurist reject the popular will? The election and installation schools give diverging answers. The election school argues that he cannot, because the guardian jurist derives his legitimacy from the popular will and is bound to obey it. In this context, the Iranian constitution is said to represent the ceiling of the guardian jurist’s powers. The installation school, in stark contrast, asserts that the guardian jurist can reject the popular will, and that this will is just one possible source of guidance. The source of legitimacy of the guardian jurist comes from God above all else. The constitution, as a contract between the people and state, represents the floor of the guardian jurist’s powers and cannot limit him. He can dismantle all state institutions should he choose, including the Assembly, which can convene to discover and install the guardian jurist, but cannot supervise him and can be dissolved by him.
III. The Assembly of Experts and Guardian Jurist Succession: Election or Installation?
The debate over the source of legitimacy of the guardian jurist has profound implications for the Islamic Republic, which, as a system based on the theory of guardianship of the jurist, places Shia jurists at the center of politics. The anticipated transition to a new guardian jurist following Supreme Leader Ayatollah Ali Khamenei, who is 78 years old, has brought this debate into the spotlight. The triumph of either the election or installation school in the coming transition will determine the degree to which the popular will in Iran can express itself in the supervision of the guardian jurist through the Assembly. Historically, the installation school has held sway, and the Assembly has only exercised its selection function once and has never supervised or removed the guardian jurist. In the coming transition, the composition of the Assembly could shape whether the next guardian jurist is governed and governs according to the election or installation school. The dividing lines in the Assembly are blurry, and it is difficult to determine the precise strength of each school in this body. That said, it appears that in the 2016 Assembly elections, jurists subscribing to the installation school won nearly two-thirds of the seats, while those in the election school won nearly one-third. Given that a guardian jurist candidate requires a two-thirds majority in the Assembly to win office, the election school may be able to form a veto bloc that could force the installation school to select a compromise candidate.
The anticipated transition to a new supreme leader has transposed the debate between the election and installation schools over mainstream Iranian politics, particularly around the 2017 Iranian presidential election. President Hassan Rouhani, representing moderates, has quoted Ali ibn Abi Taleb, the first imam of Shia Islam, as having said that he followed the will of the people, so much so that anyone who the people elected would also become his own leader whom he would obey. Drawing on this precedent, Rouhani declared: “The basis of the guardianship and government from the perspective of Ali is the vote and opinion of the people.” Hamid Rasaee, a conservative cleric, has harshly criticized Rouhani for “illiteracy” and “superficiality,” and on social media highlighted the views of a dozen senior jurists to the effect that president’s views have no basis in Shia political jurisprudence. Looking ahead, there has only been one succession in the history of the Islamic Republic, in 1989, and it is unclear if the Assembly will be the only deciding factor in choosing the next guardian jurist. The balance of power outside of the Assembly, for example, could very well shape the succession. How the succession plays out could determine whether the next guardian jurist is more constrained by the popular will or remains only answerable to God.
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