Throughout any number of works on shari’a, whether academic or lay, this odd juxtaposition of “applied law” and “shari’a” persistently appears, overlaid on this equally odd juxtaposition of elites and masses.  The general story goes that shari’a has not been the law in most modern Muslim states, it is not the applied law.  But this is because some foolish, sycophantic, out of touch elite decided to sell its birthright, the shari’a, and ape the West in its legal system.  This could be a product of colonialism, or it could be because someone at some point decided to marginalize the religious scholars, the story is not uniform, but the theme, broadly represented, appears in any number of works on Islamic law and reflects conventional wisdom among those who try desperately to explain the relevance of shari'a to modern legal systems.  It is important because “law” as written is some elitist product in the Muslim world, but the genuine law, the law that captures the hearts and minds of the people, and the applied law, the one actually in force, is some secular humanist elitist foreign overlay without much legitimacy. 

I think my scholarship, and my blog posts, have devoted a great deal of time and effort into debunking these claims.  But rather than repeat that to tiresome effect, I did want to point out a relationship between “law” and “shari’a” as it actually seems to be playing out in Iran that bears no resemblance to these stories of an elitist and distant law and some sort of system that resonates with the people.

Throughout this recent election crisis, it is the Iranian religious leadership that has sought to use as its refuge, the “law”.  Khamene’i makes repeated reference to it.  We have a law, that law controls elections, there is an appeal for election fraud that is set in that law, there are legal mechanisms and legal means by which elections can be challenged, and the opposition must be compelled to use, and I quote him now, “the law, our law” for nobody is above that.  Yes random references are made by others that the Supreme Leader has spoken, that he represents the Vanished Imam, that to challenge him is to challenge the Vanished Imam, and that this is a form of apostasy that deserves death.  But that’s not where most of the comments are by the leadership, I think because they know that sell among very many people. 

By contrast, when the leadership went to Qom to gather up religious support for its position, it had a rough time.  Part of this was sympathy for the opposition among some, especially Montazeri who has taken a remarkably courageous position, but much of it was also the clerical reaction among a broad middle, that this is about law, not religion, and so it has nothing to do with us. 

This does point to a distinction in operation between law and shari’a, but hardly one that is about an applied law of elites and a religious law of the salt of the earth.  Rather, law is what you do in order to elect a president, and what you to do challenge an election, and it is largely transplanted from the West, which is fine.  (It has to be accepted, and I don’t think any reasonable person would challenge, that the manner of the Iranian election, the posts of president and members of parliament, the ballots, the divisions into districts, the photos of the VIP’s dropping their ballots into boxes, is largely Western transplant and not derived rules of fiqh).  It deals with how you go about governing a state.  Religion, by contrast, is what the men of Qom and Najaf do, and it relates to how the believers lives in a manner that pleases the Almighty God.

Yes the theory in Iran certainly is that the law has to be consistent with the Iranian conception of the shari’a.  Yes, the roles of the Supreme Leader and the Guardian Council and whoever else are set to determine that law operates within those limits. Yes the transplanted features of the Western system are altered to fit this vision, in a manner that obviously limits severely democratic choice, but that is an entirely different conception than “applied law” in one place, “shari’a” in another, or elitist conception in one place, and masses system in the other. 

Rather, the law is broadly legitimate, and in fact legitimating, because you use it to justify what you do.  It doesn’t derive from shari’a, it derives far more from Western conceptions than shari’a.  I used the election of a president example, you could also look to the Iranian Civil Code, I’m sure if you asked the fellow from Qom what a “legitimate purpose” was for the formation of a sound contract in the Civil Code, he’d tell you to contact a lawyer, not him, and that lawyer wouldn’t be citing religious authority for the answer.

So whether it is Maliki’s campaign claim to make Iraq into a “nation of law”, repeated by his allies (Ja’fari, Allaq, Bayati) every single time they appear on satellite television, or Khamene’i running to the law to try to legitimate an election that appears to say the least highly suspect, the theme seems clear—this “applied law”, this Western transplanted concoction of elites, is having a hell of a good day in Muslim lands.