Fukuyama: Iran, Islam and the Rule of Law

Iran, Islam and the Rule of Law. By FRANCIS FUKUYAMA
Islamic political movements have been one form of revolt against arbitrary government.
WSJ, Jul 28, 2009

When Columbia University President Lee Bollinger introduced Iranian President Mahmoud Ahmadinejad at his school in September 2007, he denounced him as a “petty tyrant.”
Ahmadinejad is many bad things, including a Holocaust denier and a strong proponent of a nuclear Iran. But as recent events have underlined, Iran is not quite a tyranny, petty or grand, and the office Ahmadinejad occupies does not give him final say in Iranian affairs. That role is more truly occupied by Ayatollah Ali Khamenei, head of the Council of Guardians and Iran’s supreme leader.

A real tyranny would never permit elections in the first place—North Korea never does—nor would it allow demonstrations contesting the election results to spiral out of control. Yet Iran is no liberal democracy. So what kind of beast is it? And in what ways should we want its regime to evolve?

Political scientists categorize the Islamic Republic of Iran as an “electoral authoritarian” regime of a new sort. They put it in the same basket as Hugo Chávez’s Venezuela or Vladimir Putin’s Russia. By this view, Iran is fundamentally an authoritarian regime run by a small circle of clerics and military officials who use elections to legitimate themselves.

Others think of Iran as a medieval theocracy. Its 1979 constitution vests sovereignty not in the people, but in God, and establishes Islam and the Quran as the supreme sources of law.

The Iranian Constitution is a curious hybrid of authoritarian, theocratic and democratic elements. Articles One and Two do vest sovereignty in God, but Article Six mandates popular elections for the presidency and the Majlis, or parliament. Articles 19-42 are a bill of rights, guaranteeing, among other things, freedom of expression, public gatherings and marches, women’s equality, protection of ethnic minorities, due process and private property, as well as some “second generation” social rights like social security and health care.

The truly problematic part of the constitution is Section Eight (Articles 107-112) on the Guardian Council and the “Leader.” All the democratic procedures and rights in the earlier sections of the constitution are qualified by certain powers reserved to a council of senior clerics.

These powers, specified in Article 110, include control over the armed forces, the ability to declare war, and appointment powers over the judiciary, heads of media, army and the Islamic Revolutionary Guard Corps. Another article lays out conditions under which the Supreme Leader can be removed by the Guardian Council. But that procedure is hardly democratic or transparent.

One does not have to go back to the Middle Ages to find historical precedents for this type of constitution. The clearest parallel would be the German Constitution adopted after the country was unified in the 1870s. Pre-World War I Germany had an elected parliament, or Reichstag, but reserved important powers for an unelected Kaiser, particularly in foreign policy and defense. This constitution got Germany into big trouble. The unelected part of the leadership controlled the armed forces. Eventually, though, it came to be controlled by the armed forces. This seems to be what’s unfolding in Iran today.

Compared to Section Eight, the references in the Iranian Constitution to God and religion as the sources of law are much less problematic. They could, under the right circumstances, be the basis for Iran’s eventual evolution into a moderate, law-governed country.

The rule of law was originally rooted in religion in all societies where it came to prevail, including the West. The great economist Friedrich Hayek noted that law should be prior to legislation. That is, the law should reflect a broad social consensus on the rules of justice. In Europe, it was the church that originally defined the law and acted as its custodian. European monarchs respected the rule of law because it was written by an authority higher and more legitimate than themselves.

Something similar happened in the pre-modern Middle East. There was a functional separation of church and state. The ulama were legal scholars and custodians of Shariah law while the sultans exercised political authority. The sultans conceded they were not the ultimate source of law but had to live within rules established by Muslim case law. There was no democracy, but there was something resembling a rule of law.

This traditional, religiously based rule of law was destroyed in the Middle East’s transition to modernity. Replacing it, particularly in the Arab world, was untrammeled executive authority: Presidents and other dictators accepted no constraints, either legislative or judicial, on their power.

The legal scholar Noah Feldman has argued that the widespread demand for a return to Shariah in many Muslim countries does not necessarily reflect a desire to impose harsh, Taliban-style punishments and oppress women. Rather, it reflects a nostalgia for a dimly remembered historical time when Muslim rulers were not all-powerful autocrats, but respected Islamic rules of justice—Islamic rule of law.

So what kind of future should we wish for Iran, in light of the massive demonstrations? My own preference would be for Iran to some day adopt a new, Western-style constitution guaranteeing religious freedom, a secular state, and sovereignty vested firmly in the people, rather than God.

But a considerable amount of anecdotal evidence (we don’t have anything better) suggests this is not necessarily the agenda of the protesters. Many of them, including opposition candidate Mir Hossein Mousavi, say they want Iran to remain an Islamic Republic. They look at the radical regime change that occurred in next door Iraq and don’t want that for themselves. What they seem to wish for is that the democratic features of the constitution be better respected, and that the executive authorities, including the Guardian Council, and the military and paramilitary organizations, stop manipulating elections and respect the law.

Iran could evolve towards a genuine rule-of-law democracy within the broad parameters of the 1979 constitution. It would be necessary to abolish Article 110, which gives the Guardian Council control over the armed forces and the media, and to shift its function to something more like a supreme court that could pass judgment on the consistency of legislation with Shariah. In time, the Council might be subject to some form of democratic control, like the U.S. Supreme Court, even if its members needed religious credentials.

Eliminating religion altogether from the Iranian Constitution is more problematic. The rule of law prevails not because of its formal and procedural qualities, but because it reflects broadly held social norms. If future Iranian rulers are ever to respect the rule of law as traditional Muslim rulers once did, it will have to be a law that comes from the hearts of the Iranian people. Perhaps that will one day be a completely secular law. That is unlikely to be the case today.

Unfortunately, Iranians may never get to make the choice for themselves. The clerical-military clique currently exercising power is likely to drag Iran into conflict with other countries in the region. This could easily consolidate its legitimacy and power. Let us hope that the country’s internal forces push for an evolution of the political system towards genuine rule of law and democracy first.

Mr. Fukuyama, professor of international political economy at the Johns Hopkins School of Advanced International Studies, is author of “America at the Crossroads: Democracy, Power, and the Neoconservative Legacy” (Yale, 2006).