THEOCRATIC CONSTITUTIONALISM SSRN. DOC http://www.scribd.com/doc/24001578/Theocratic-Constitutionalism-An-Introduction-to-a-New-Global-Legal-Ordering

Theocratic Constitutionalism: An Introduction to a New Global Legal Ordering  Larry Catá Backer* * Director, Coalition for Peace and Ethics, Washington, D.C.; Professor of Law, Pennsylvania State University.              Iran presents an example of a well-developed system of theocratic constitutionalism. If for no other reason this system presents the greatest challenge to the values on which its competitor—secular transnational constitutionalism—is based. Iran’s theocratic government is not merely the imposition of a religious state without limits, but instead suggests a principled basis of state organization through law, the object of which is to secure the benefits of a specific (though perhaps odious to non-believers) set of legitimate (to believers) normative values. That political agenda can be simply stated: Islam provides a comprehensive sociopolitical system valid for all time and place. Thus, God is the sole legislator. Government is mandated in order to implement God's plan in this world. Individual believers are not permitted simply to suffer unjust rule in silence. They must actively work to realize God's plan in this world. The only acceptable form of this Islamic government is that directed by the most religiously learned. This is the guardianship of the faqih (velayat-e faqih).

This is meant to be a rule of law ordering. This ordering is well-represented in the Constitution of the Islamic Republic. The government constituted pursuant to the Iranian Constitution is in some great sense democratic. 208. See Qanuni Assassi Jumhuri’i Isla’mai Iran [The Constitution of the Islamic Republic of Iran] [1980] arts. 6-8 [hereinafter Iranian Constitution of 1979]. However, it is subject to the ultimate limitations of the supreme religious leader. See id. art. 5. 

There is a significant element of separation of powers in the construction of the state apparatus.  Second, the substantive elements of modern constitutionalism are also observed. 209 this is in accordance with the limitations of Islam generally as exercised through the religious leader pursuant to Article 5 and Articles 90-99.

Human rights are enshrined in the constitution and protected. 210  see articles.19-55.   The power to petition the government is preserved. 211 see artiles.19-42.  The Iranian Constitution creates a system of government grounded in rules and separation of powers. The legislative power is vested in representatives of the people 212 see articles.26-27

whose actions are constrained within a system of institutionalized and nominally democratic legislation adopted in accordance with constitutional requirements. 214   See id. articles.62-99.The legislative power is then elaborated.

Like modern constitutions it also imposes limits on power that can be exercised by the state. 215  The substantive limitations on state power are elaborated in Chapter III of the Constitution, Articles 19-31. These mimic the standard description of basic rights in Post-War constitutions. But rather than being grounded in transnational constitutionalist principles, these rights are grounded “in conformity with Islamic criteria.” Id. art. 20 (equal protection of the laws); art. 21 (rights of women); art. 24 (press freedom except when “detrimental to the fundamental principles of Islam”); art. 27 (public gatherings, same as art. 24); art. 28 (right to choose occupation if “not contrary to Islam or the public interest”)

But constitutionally granted authority may only be exercised within the limits of the legal framework of Islam. Islam is not only normatively foundational but also constituted as a foundational system of legal organization. 216 . See e.g., id. art. 12 (“The official religion of Iran is Islam and the Twelver Ja'fari school [in usual al-Din and fiqh], and this principle will remain eternally immutable.”). The legalist nature of Islam within Iranian constitutionalism is further refined in Article 12: “Other Islamic schools, including the Hanafi, Shafi'i, Maliki, Hanbali, and Zaydi, are to be accorded full respect, and their followers are free to act in accordance with their own jurisprudence in performing their religious rites.” Id. The authority of these legal schools are legitimized through the constitution as well. 

 It is not a supplement, but a substitute for the constitutionalist values represented by the international system and the values generated by the community of states. Thus, for example [d]uring a meeting of the United Nations Human Rights Committee in 1982 investigating reports of state-sponsored murder and torture, the leader of the Iranian delegation was questioned about Iran's view on the United Nations Universal Declaration of Human Rights. Sayed Hadi Khosrow-Shahi, the leader of the delegation, replied that Iran believed in the “‘supremacy of Islamic laws, which are universal’” Reimer, supra(Supra -Latin for  legal citation signal used when a writer desires to refer a reader to an earlier-cited authority) note 112, at 360

 This constitution is not imposed from above but represents an act of will of the people—a recognition, freely embraced—of the appropriate form of political organization. 218 See Iranian Constitution of 1979 art. 1. (“The form of government of Iran is that of an Islamic Republic, endorsed by the people of Iran on the basis of their long-standing belief in the sovereignty of truth and Qur’anic justice, in the referendum of . . . [March 29-30, 1979] through the affirmative vote of a majority of 98.2% of eligible voters, held after the victorious Islamic Revolution led by the eminent marji’ al-taqlid, Ayatullah al-Uzma Imam Khumayni.”). 

 The Iranian theocratic Constitution resembles modern constitutions, and adheres to the current pattern of modern constitutionalism in its form and objectives—to formulate a system of governance based on legitimating principles and authoritative values. It adheres to thick “rule of law” constitutionalism. The power of the state and its governance organs are strictly limited. In this sense the Iranian constitution follows emerging models of transnational constitutionalism. The difference—and a critical one to be sure—is the source of the norms constituting those boundaries of governance and the mechanisms for engaging with those norms.