Divine vs. Human Law: The Quarrel between the Anti- and Pro-Constitutionalist Jurists in Iranian Constitutional Revolution of 1906

Mehdi Mirabian Tabar

doi:10.3390/rel12080630

Abstract

This study investigated the quarrel between the pro-and anti-constitutionalist jurists following the establishment of the first National Consultative Assembly (Majlis) in Iran and the drafting of the first constitution in 1906. A group of shi῾ite jurists launched an attack on Majlis, in addition to the ideas of human legislation, freedom, and equality, by considering the Islamic Sharī῾a law to be a set of perfect and impeccable laws. In response to these oppositions, the pro-constitutional jurists argued in favor of the constitutional movement. In this paper, it is argued that the quarrel could be considered as evidence for the perennial tension between the divine and human law in Islam. It appears that examining this conflict may shed light on incidents shaping the history of contemporary Iran.

Highlights

In Iran, the nineteenth century, which coincided with the reign of the Qajar dynasty, was a period of profound changes in the economy, politics, and culture
We attempt to show how the fundamental concepts of law, freedom, and equality provoked a group of Shi\ite jurists to launch an attack on constitutionalism
It is indisputable that every constitution that devotes a section to securing the rights of the nation must take for granted freedom and equality as natural rights

Summary

Introduction

In Iran, the nineteenth century, which coincided with the reign of the Qajar dynasty, was a period of profound changes in the economy, politics, and culture. Most jurists even believed that the ruling power should be limited in order to promote justice and eliminate oppression Their main opposition, was to the ideals of “constitutionalism”, namely, freedom and equality, which they perceived as incompatible with Islamic teachings.. New sets of laws, according to Janet Afary, “were promulgated in the hopes of creating a nationstate with equal rights for all male citizens.” (Afary 2013) Besides, with this transition, the newly formed citizens gained a chance to participate in politics This issue exacerbated the anti-constitutionalist clerics’ opposition. The existing scholarship has provided merely a historical account of the quarrel between the pro- and anti-constitutionalist jurists, rather than examining judicial arguments put forth by both sides These studies can, be classified as either social history or political sociology, which generally pay little attention to conceptual history. The present article aims to examine the main treatises of these two groups, highlights their main arguments according to their jurisprudential principles, and provides an example of the historiography of ideas

The Victory of the Movement

Anti-Constitutional Jurists against the Constitution

The Arguments of the Pro-Constitutionalist ‘Ulamā’ to Legitimize the Movement

Constitutional State as the Lesser Evil

Conclusions