Iran's Revolutionary Courts: the halfway between secularist justice and religious institutions
Alessia Tortolini
Ph.D student, Department of Political Sciences
University of Pisa
;
via Melara 34,
54035 Fosdinovo (MS)
Italy
Abstract
This research aims to underline the peculiar hierocratical nature of the Islamic Republic of Iran, often considered either a theocracy or an Islamic state. The exam of Revolutionary Courts as the symbol of velayat-e faqih theory is the key aspect of the paper, assuming the centrality of the judiciary into Shi’ite Islamic thought. Using a combined methodology of conceptual law-oriented analysis, etymological analysis and a global comparative procedure the hierocratical features of Iran appear clearly. This process helps understanding the complex working principles of Iran, stating why it cannot be neither a theocracy, nor an Islamic state.
Keywords
Islam, Iran, Judiciary, Revolutionary Courts, Hierocracy
Literature Review
The first studies upon Iranian socio-political history are related to Lord Curzon's reportage about Persia, Persia and the Persian Question, published in 1892. This huge masterpiece led scholars from all over the western world to get close to Iranian traditions, and also to discover the real relationship between Shi'ism and Persian kingship. However, since XX century Iranian studies were re-discovered, and this process happened in three distinct phases: the first one before Khomeini's affirmation, the second one in the aftermath of 1977-1979 revolution, the third one after the death of Khomeini.
In the first phase, scholars used to focus onto Safavid, Qajar and (less) in Pahlavi eras, mostly referring to 'ulama and their role in society or to the connection between Shi'ite Islam and kingship. Keddie, for example, studied the implications of religion during the 'White' revolution of 1905-1907 (or 1905-1911 depending on the interpretations) and how the so-called “officials of Islam” worked in favour of a 'popular' reform movement not only in a Constitutional level, but also in a social and political field (Keddie1969, 1983). Other scholars focused their studies upon the connection between Shi'ism and Iranian nationalism as a key factor to the above mentioned Pahlavi's Constitutional revolution (Sabahi 2006). During this first phase of Iranian studies, there was more attention to Islamic roles and dynamics rather than to the institutional framework of the state. This probably happened because of the lack of territorial control of a real state-appointed bureaucracy which was de facto substituted by the triad 'ulema - mullah - marja-e taqlid. The historical concept of hierocracy as a key feature of Persian history was not taken into consideration.
The second group of scholars referred to the 1977-1979 period, mostly writing throughout the revolutionary years. The main issue of this second phase studies was the newborn velayat-e faqih regime, and Khomeini's role in destroying Pahlavi's secularised state. Understanding the 'Islamic revolution' was definitely a challenge to 1980s and 1990s scholars due to its partlyun-Islamic origin. As a matter of fact, during 1970s in Iran there was a huge debate about the doctrinaire sources of the Usulī law school in reference to the clerical absolutism concept, which has been deeply examined by many scholars (Abedi and Abedi1986; Akhavi 1988; Abrahamian 1982)). Moreover, during 1980s scholars started also to examine the differences between Pahlavi's and Khomeini's Constitutions, underlining the contradictions among the Supreme Leader's Program for the establishment of an Islamic Government (Khomeini 1970) and the actual use of a western-type Constitution (Mayer 1987). This second group of scholars focused mostly onto the Islamization of those law fields which traditionally were reserved to civil power, i.e. penal jurisdiction, or onto the personalisation of power in the figure of Khomeini, wondering about the actual form of government of the Islamic Republic of Iran (IRI) (Omid 1992). Again, there were no references to hierocracy, even if Khomeini often pointed to Persian Shi'ite tradition in order to underline his distance from Pahlavi's west-constructed state.
The so-called “Westoxification” (Omid 1992) and the analysis of Iran either as a theocracy or as a tyranny have been examined in the third and last phase of Iranian studies. Starting from the analysis of 1989 Constitution, scholars have compared IRI to other Muslim-majority states in order to underline its specific features (Kazemipur and Rezaei 2003; Tamandofar 2001; Bayat2005). Primary attention has been given to the issue of the rights of women, which is one of the main problematic aspect of the wider field of human rights. According to the University of Essex survey of 2014 IRI's judiciary system lacks of independence from the theocratical regime, which is the critical feature that is preventing Iran from becoming a democracy in the western sense (Cress, Kent and Nayyeri, 2014). Crucial into this literature framework is Arjomand, who reconstructed the relationship between Shi'ite orthodoxy and Khomeini's revolutionarism (Arjomand 1981). Assuming hierocracy as an historical Persian feature since the Safavids, Arjomand succeed in highlight Persian heritage in constructing the Islamic Republic of Iran, always referring to specific features which recur through all Khomeini's state-building process (Arjomand 1985). Finally, Campanini underlines very well the features of hierocracy in nowadays IRI in order to clarify the difference between theocracy and hierocracy in Iranian affairs (Campanini, 2015).
Introduction
A state can be defined Islamic only if it is founded upon shari'a, and it has to be an entity where people who are skilled enough to rule are the ones who are trained in Islamic law (Tamandofar 2001: 205). Tamandofar's definition seems perfect to describe the form of government of IRI, even if it is not precise enough. As a matter of fact, it is not completely correct to consider Islamic a state ruled by fiq, because nowadays it would definitely be impossible due to the cohabitation of common law and fiq. The most precise way to identify IRI's form of government is hierocracy.
Hierocracy as a government of priests (Arjomand 1981: 43) appeared as soon as Shi'ite orthodoxy was legally recognised by the Safavids. Although Safavid Persia was effectively a kingdom, the maintenance of a tribal-structured society negatively affected the shah's influence, leading clergymen to assume the head of administration. The shah's attempt of overrunning tribal dynamics caused the rise of the so-called 'Clerical Estate' (Arjomand 1981: 41), where Islamic institutions (i.e. madaris, mosques, charitable contribution, qadiships) were controlled by the state-appointed office of the Sadr. Even if its legitimacy was subject to the shah, the Sadr was a de facto religious office because of both the involvement of 'ulema as state-salaried employees. During Qajar era hierocracy saw itself strengthen by Usulī philosophy of Shi'ism, which characterised itself for an in-depth study of jurisprudential rationalism (Arjomand 1981: 58). Finally, the absence of a truly centralised governmental control led the 'ulema to monopolise not only the control of religious affairs, but also anything concerning the civil power (Entessar 1988: 100-101). Only Pahlavis tried to secularise Iran, but their 'White' Constitutional Revolution of 1905-1907 turned into a semi-failure. In fact, on one hand the institutions became more independent from clergymen, but on the other hand corruption raised to very high levels letting Iranian community to disaffect themselves from their shah.
Even if most of the scholars attribute to IRI theocratical features, especially after Khomeini's revolution, theocracy does not fully represent the real form of government of nowadays Iran. Khomeini did not introduce anything new during his reforming movement, excepting the velayat-e faqih theory. The Supreme Leader basically recovered the Persian heritage by affirming a hierocratical form of government, which is definitely more peculiar than theocracy. The definition of theocracy itself appeared to be excessively broad to be precise in defining IRI, because it is not completely correct to refer to theocratic rule as an attribute of Iran. Nowadays Iran is floating between secularist and religious power, and no one is prevailing upon the other. As a demonstration of the hybrid nature of Iranian Republic, the judiciary seems to be the most appropriate example to describe how IRI manages still nowadays the cohabitation of siyāsaand shari'a. Aiming to clarify this concept, this paper will examine the Special Courts and the Revolutionary Courts in order to underline how civil and religious power cohabit in IRI both controlled by a mujtahid, demonstrating why Iran cannot be defined nor as a pure theocracy neither as an Islamic state, but it sets up itself as a hierocracy.
Theoretical framework
In order to proceed with the analysis of Special and Revolutionary Courts as an evidence of the hierocratical nature of IRI, it is needed to clarify the development of Khomeini's thought related to the Shi'ite Twelver Imam doctrine. Even if the concept of velayat-e faqih (i.e. the theory about the Guardianship of the Islamic Jurist) assumes the building-role of a truly Islamic state it is not so proper to consider alike IRI. In fact, there are three main issues which prevent post-1979 Iran to be considered an Islamic state: 1) the republican form of government in a western political science sense; 2) the huge presence of Shi'ite clergymen in the state's workforce, which can be in contrast with Allah's sovereignty (Entessar 1988: 100); 3) the territoriality of law in contrast with the universalistic view of Islam (Mayer, 1987: 155), which led to the supremacy of watan in regard to the Ummah.
The above mentioned doctrinaire configuration deeply influenced the Council of the Islamic Revolution who drafted the first revolutionary Constitution, even if this Constituent Assembly just tried to act an islamization of the law. Therefore, this confirmed the traditional precedence of Islamic jurisprudence over theology, proving the truthfulness of the primacy of orthopraxy towards orthodoxy (Montgomery Watt 1996). This assumption also led to another remark: the unsuitable definition of theocracy in regards of IRI. Originating from ancient Greek, the word 'theocracy' arises from the words θεός (God) and κράτος(power) and consists in a peculiar form of government in which both human and divine affairs must be in compliance with God's will. Even if this concept agrees with the legal basis of IRI's Constitution, Iran's form of government configures itself as a presidential/aristocratic republic led by clergymen. Instead, 'hierocracy' as ιερός (saints) κρατία (power), i.e. the rule of someone locum tenens of deity, seems to be more fitting with velayat-e faqih theory (Tamandofar 2001: 206-207). Also, the re-evaluation of Persian heritage realized by Khomeini in conceiving his revolution deeply recalled to hierocracy as a traditional feature of Persia since the Safavids (Arjomand 1981: 40).
Conceptualization
As Khomeini said, velayat-e faqih theory of government affirmes the primacy of Shi'ite clergy into the workforce of the Islamic Republic. At the same time, the Supreme Leader stated also the primacy of Iranian interests, even if they always had to be in regard of shari'ah's rulings. So, laws have to be compliant to Quran and Sunna while clergymen can make any law they wish as long as they are related to fiqh in order to serve IRI. Also, clergymen can legislate because of their role of human expression of Allah whenever they can be classified as marja-e taqlid, i.e. the higher authority in fiqh interpretation who every believer has to imitate. This last assumption introduces itself the relevance of hierocracy as the describing framework of velayat-e faqih doctrine, highlighting the real meaning of Guardianship of the Islamic Jurist: the rule of clerics.
The leading position of clerics is also determined by their omnipresence in all Ministry's managements, especially in the judiciary one. According to Campanini, Tamandofar and Entessar it is possible to evaluate the real importance of IRI's judiciary system into the framework of velayat-e faqih theory, because of the massive relevance of mujtahid in determining the compliance of laws to fiqh. Moreover, the head of the judiciary must be a mujtahid, and he is the only one who can appoint judges in any king of Court. The head of the judiciary has also the power of establish the Special Courts, which comprehend the Revolutionary ones, that have to judge upon crimes against the national order. These tribunals represent the core of Khomeini's revolution and one of the most interesting examples of the concrete application of velayat-e faqih doctrine in its hierocratical feature.
Methodology
To investigate on how religious power deals with secular duties into the framework of judicial system it has been necessary to proceed with a conceptual law-oriented analysis based upon the study of the two editions of IRI's Constitution. This first step has been the specific examination of Chapter IX of both of the Constitutions and its comparison to the preambles, which led to the affirmation of velayat-e faqih doctrine into the IRI's legal framework. This last assumption is important to underline how the judiciary represents the cornerstone of Khomeini's ideal state, and why its conformity with velayat-e faqih theory involved the judiciary into a hierocratical framework. In this sense Revolutionary Courts represent the most precise example of Guardianship of the Islamic Jurist realization.
The second step of this preliminary analysis has been the operation of a linguistic-etymological examine of the main concepts of this work: theocracy, hierocracy, velayat-e faqih. These keywords are fundamental for highlighting the centrality of the judicial system not only in Khomeini's philosophy, but also in a wider Islamic and non-Islamic perspective. The deep importance of the conformity of human behaviour to God’s will shows itself into the peculiar attention reserved to lawfulness in Shi'ite Islam, where the ones who are able to judge are clerics who personify Allah's intentions. This legal arrangement states the construction of the rule of priests as locum tenens of deity, which finds its equivalent in Hegel's philosophy of hierocracy. At the same time, the employment of laic workforce in the state apparatus may lead to the evaluation of IRI as a theocracy, according to Weber's definition of medieval theocracy. Actually, the governmental hierarchy states the primacy of clergymen, confirming the primary role of divine rule through human priests who have also the ultimate responsibility to monitor laic's behaviour. This very last statement lead to a key consideration: IRI would have been a theocracy only if both clerics and laics had shared the same legal responsibilities, which is not true.
Finally, after having verified why judiciary can be considered as the cornerstone of Khomeini's velayat-e faqih theory, and having established the compliance between Guardianship of the Islamic Jurist and hierocracy, this research focuses its attentions on the case-study of Revolutionary Courts. Using a comparative procedure between the first and the second part of the analysis and the actual operation of IRI Special Courts, this investigation aims to demonstrate why Revolutionary Courts are so relevant into defining Iran as a hierocracy. The chosen case-study is peculiar because of the establishment and the development of Revolutionary Courts, both in Khomeini's thought and in IRI's 1989 Constitution. Lastly, analysing the three-members system of Revolutionary Courts and comparing it to Khomeini's edicts and speeches, the real nature of IRI clearly appears demonstrating why nowadays Iran is neither an Islamic state, nor a pure theocracy.
Case-study: Revolutionary Courts. Analysis and Findings
IRI's Revolutionary Courts (RC - Dādgāh-hā-yi Inghilāb) were initially not included in 1979 Constitution. Their birth was due to Khomeini's will of establishing a peculiar stage of proceedings exclusively related to crimes against national interests. RC were established as temporary jurisdictional organs which foresaw a single shari'atic judge as chief of the Tribunal. Because of their non-existence into state framework, RC needed to be institutionalized with a separate constitutional law, i.e. the 1979 Administrative Regulations Governing the Revolutionary Courts Act. The needing of a such kind of judicial organ was due to the sudden re-foundation of the judiciary system, which was still not completely improved. As a result, the country was afflicted by an extreme diffusion of authority (Entessar, 1988 93-94) which needed to be centralised; this situation was later solved by establishing the Supreme Judicial Council.
Assuming the Supreme Judicial Council as the highest level of jurisdictional power, RC seemed to be not necessary anymore to the juridical framework of post-revolutionary Iran. Indeed, Khomeini established RC to punish quickly all the officials related to Pahlavi's regime; once got rid of all the shah-related establishment, IRI might not need special revolutionary tribunals. Khomeini instead converted the jurisdiction of RC, conforming it to the brand new Islamic asset of the state and integrating RC into Special Courts framework. Etymologically the word 'special' supposes the existence of a peculiar branch of the judiciary, which does not deal with common offences. In fact, this primary distinction is very important to understand the asset of velayat-e faqih theory fulfilment: the higher position of clergymen corresponds to their greater responsibility towards Islamic law.
Moreover, the primacy of mujtahid in IRI's framework is another key aspect for understanding the imperfections of 1979 Constitution and consequently the conservation of RC into the judicial system. Due to the fact that the first IRI's chart was the result of never solved ideological tensions, immediate post-revolutionary Iran configured itself as an halfway between democracy and theocracy. Inside the disorganised first Iranian republic Khomeini became crucial thanks to his role of charismatic leader, which gave him the power to fully realize his Guardianship of the Islamic Jurist. Even if velayat-e faqih principles were already mentioned in 1979 Constitution preamble, they were not actually effective. In other words, Khomeini himself let his philosophy came-into-law by establishing clergymen as guardians of the Islamic law, collocating them into all the higher positions of state framework: head of the judiciary; head of the Supreme Court; general attorney. According to Islamic praxis, Khomeini's behaviour have to be intended as a clear demonstration of the primacy of orthopraxy towards orthodoxy, establishing the judiciary as the essential feature of Islamic law (Montgomery Watt 1996: 87).