The Iranian Constitution and the Islamic Republic: A Conversation with Mohammad-Amir Ghoddousi

On the anniversary of the issuance of the Constitutional Decree on the fourteenth day of Mordad in the year 1402 (August 5, 2023), the analytical news outlet Didarnews, in its Principle 27 program, arranged a conversation with Mohammad-Amir Ghoddousi, jurist, first-class attorney, and university lecturer, about the possibility of reconciling constitutionalist values with a government based on religious rules, as well as the relationship between the Islamic Republic and the ideals of the Constitutional Movement. In this conversation, which was held on the occasion of the publication of the book “Four Theories of Governance” — published in 2020 by Negah-e Moaser Publications — other topics such as the constitution, human rights, minority rights, and democracy were also addressed.

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The Iranian Constitution and the Islamic Republic

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The book “Four Theories of Governance: A Study on the Relationship Between Constitutionalism and Legitimacy” attempts to answer this question: Is it possible for a government to be faithful to the values of the new world and simultaneously be a religious government? What is meant by a constitutional government in this book is a government in which four components are institutionalized: the democratic administration of the public sphere, governance based on the rule of law, the safeguarding of human rights, and the consideration of national traditions. Also, what is meant by a religious government in this book is a government that is administered according to religious laws.

With this explanation, the first question can be formulated in another way as follows:

Can a government that seeks to be administered based on religious rules be a government that truly safeguards human rights, is compatible with the rule of law in the strict sense of the term, is democratic in the strict sense of the term, and duly considers national traditions?

As Ghoddousi has stated in this book, in response to this question, four different theories have been proposed by experts in this field: The first theory, which the author has called “Legitimacy,” is based on the belief that a religious government cannot be a constitutional government. That is, a government established and administered based on religious rules cannot be a government that accepts human rights, the rule of law, democracy, and national traditions, and the duty of Muslims is to set aside these components that are incompatible with Sharia. Because these components are imported and sometimes polytheistic elements that are not suited to Muslim culture.

Ghoddousi believes that we have had many advocates of religious government in the history of Islam and Iran, and in his view, Sheikh Fazlollah Nouri and the founder of the Islamic Republic are among the most famous figures of this group.

The second group, whose theory Ghoddousi has termed “Constitutionalism,” consists of those who, like the first group, say that the components of constitutional government cannot be reconciled with the requirements of a sharia-based government. The difference is that they want a government that is democratic and human-rights-oriented, and that upholds the rule of law and national traditions. This spectrum includes those who are either fundamentally non-religious, or, if they are religious, believe that true religiosity is something other than this historical legalism and adherence to the fatwas of jurists in practical treatises, and that God has not asked us to follow these treatises, which in their view are replete with errors in the process and product of juristic inference.

In the author’s view, Mirza Fath-Ali Akhundzadeh and Dr. Hossein Bashiriyeh are among the prominent thinkers of the second group.

Proponents of the third and fourth theories, who, according to Ghoddousi, believe in two different forms of “reconciling constitutionalism and sharia-based legitimacy,” are those who say that respect for human rights, commitment to democracy, adherence to the rule of law, and consideration of national traditions are all compatible with religious precepts.

In fact, these individuals are religious intellectuals who want, in one way or another, to combine adherence to religious precepts with the safeguarding of constitutional values.

In the author’s view, the idea of the possibility of reconciling constitutionalism and sharia-based legitimacy has manifested in two different forms in the history of our thought: the first form is in the views of those who, like Abolqasem Fanaei, believe that the Sharia must, both in its essence and in its proof, fit within the framework of the ethical and rational standards of constitutionalism, and that a Wise God cannot issue commands contrary to human rights and the reason of the rational people of the age, and that fundamentally we must attune our understanding of God’s word with the unavoidable values of the new world. This perspective belongs to those who consider themselves both legally observant and, at the same time, sympathetic and in agreement with all the values of the new world in the realm of governance. The reason for this compatibility is that this group of thinkers has essentially brought about a paradigm shift in the method of inferring religious rulings. Ghoddousi has named this theory “Sharia-based Legitimacy within the Framework of Constitutionalism.”

The second form of this idea—at least up to the book’s publication date—has emerged in the views of figures like Dr. Soroush and Mohsen Kadivar. The author of the book believes that although this group of thinkers makes great efforts to reconcile constitutionalism and sharia-based legitimacy, due to certain scientific and non-scientific considerations they hold, they sometimes tend toward a kind of neutering of constitutional values under the pretext of safeguarding religious and ethical values. A clear manifestation of this claim, from the author’s perspective, is the theoretical obstructionism of some of these thinkers against the full and complete acceptance of the “right to be wrong” within the framework of liberal discourse and in its profound meaning, depth, and breadth. Ghoddousi has named this theory “Constitutionalism within the Framework of Sharia-based Legitimacy.”

Some remarks by Mohammad-Amir Ghoddousi in this conversation:

* The notion that the problems that have arisen in the Islamic Republic stem from a deviation from traditional jurisprudence is not an acceptable notion.

* Ayatollah Khamenei is the true interpreter of Imam Khomeini’s line.

* Imam Khomeini is a historical Sheikh Fazlollah [Nuri] with a Bakhtiari [fate].

* I do not consider Akhund Khorasani and Mirza Naini to be constitutionalists either.

* Mirza Fath-Ali Akhundzadeh is an unsung genius.

* Seyyed Hassan Taqizadeh is a figure of such significance that he inspires Ehsan Yarshater and Iraj Afshar to research and publish his works.

* Mohammad-Ali Foroughi’s will makes one’s hair stand on end.

* I have no doubt that future generations will bring the “Conquest of Tehran” to cinema screens.

* The activities of Empress Farah Pahlavi in the realm of culture and art are among the very positive actions of the Pahlavi government.

* The Lion and Sun is a national symbol, and denying and hiding it is not a prudent or thoughtful act.

* Changing the names of streets from Takht-e Jamshid and Takht-e Tavous, etc., to other names was a mistake.

* Iran and Iranianness have no custodian in this system of governance.

* The constitution of every nation, like the warp and weft of a hand-woven carpet, is the product of a nation's historical past.

* The Constitutional Constitution was, in some respects, more progressive than our current constitution.

* The monarchical system was, in its time, a rational system of governance in Iran and throughout the world.

* Today, the two systems of constitutional monarchy and republic are two rational systems and instances of constitutional government in the general sense.

* Morteza Motahhari was one of the most rational figures in the Islamic Republic.

* There is no significant difference in the fundamental principles of the political thought of Imam Khomeini, Ayatollah Khamenei, Sheikh Fazlollah Nouri, and Ayatollah Mesbah Yazdi.

* I disagree with Dr. Firahi's views on the political thought of Imam Khomeini.

* Human rights are the honor of constitutionalist thought and are fundamentally not subject to a vote.

* Depriving individuals of natural rights such as education and employment on the pretext of their beliefs is a systematic violation of human rights and a fatal mistake.

* The existential philosophy of the state is neither to make people religious nor to make them moral.

* The limit of freedom in a well-ordered society is solely and exclusively the harm principle.

* The path to progress is the expansion of genuine, non-directive human sciences.