The Islamic Threat to Iranian Juristic Theory
In the next week or two I anticipate reducing the number of my posts as I go underground to really finalize some changes on the Iraq constitution manuscript that has been my existence for the past year. Before I did, I did want to comment on one matter that has recently come to my attention, from very interesting and thought provoking scholarship about it by Mirjam Kunkler posted on SSRN. It relates to a separate court structure in Iran that deals with adjudication of offenses committed by the clergy (potentially also against them it seems, the jurisdiction of this court seems baffling, but let's focus on the crimes putatively committed by them).
What is interesting about this to my mind is the extent to which efforts are made to place these courts under the firmer control of the Supreme Leader. The Supreme Leader has greater control of the judicial appointment process, it seems more or less controls the court's jurisdiction by deciding alone what gets sent to it, and the entire structure is separated from Iran's broader judiciary, meaning no appeals from it to the higher Iranian courts, and no possibility of cross jurisdictional dispute. The Leader sends it, that is, to these courts of clergy, and there it stays.
One might well ask why precisely all of this is necessary to suppress dissent, and for the clergy of all people. What's wrong with Iran's normal state mechanisms, which have served the regime quite well. I mean these clerics aren't exactly the Facebook generation, they're pretty much all old men who sit in Qom in study circles where pen and paper is advanced technology and spend a fair amount of their time discussing things that most people would find so esoteric and abstract as to be useless. They can, of course be deeply revered figures, Montazeri was one, Sistani certainly is in Iraq, and none can forget Khomeini himself. They can even be charismatic, anyone who knew Muhammad Baqir al Sadr spoke of his charisma and you know he'd be on Facebook if alive, converting the wavering one poke at a time (I'm serious, and it's not an insult at all.). But then on balance are they as charismatic as other figures who have shown they inspire millions--Khatami, Karroubi, Mir-Hosseini? It does not seem so, and so if the supporters of those figures, if even the figures themselves, can be dispatched with a judiciary that is already deeply sympathetic to the revolution and loyal to the Leader, why not trust it to handle whatever renegade clerics you might think you have in your midst? Why isn't the same law enforcement and law adjudication mechanism used to suppress millions of students and their leaders enough, that is?
The article I cite above references this, but to add further meat to it, or rather to supply the perspective I have gained from my own knowledge of Najaf rather than Qom, the answer is rather simple. The loyal followers of this blog of course remember a conversation I had with one of the four Grand Ayatollahs in Najaf, Bashir al Najafi, in the context of a post on the role of cleric and layperson in the Shi'i tradition. In the shocking possibility that in fact that conversation between him and me was not all over the blogosphere, such that one would have to have been in a cave not to know about it, basically the analogy Najafi gave me, and one I should say I have heard countless times by others (though this time it was a Grand Ayatollah and so the one I cite more often), was that the religious scholar knew the rules of the religion precisely like the doctor knew medicine. He had studied it, and therefore was one that should be relied upon to the derogation of others, indeed to the derogation of the layperson's own faculty of reason.
In other words, the scholar of religion was not "expert" in proving Muhammad received a Message from God through the archangel Gabriel, the mere exercise of reason (not leap of faith, reason, look at the evidence, the theory goes, and it will show you the Truth) and not study is required for that. But what the scholar CAN do is lay out the rules once you have accepted the requisite basic principles of faith. Are the scholars always right? No, in fact none of the ones I met in Najaf are in the slightest bit arrogant or smug when saying this. Are they going to be right more than, say, me, because they have studied more? Their entire authority and the basis of their legitimacy, to their minds, rests on the answer to that being in the affirmative. If I point out how difficult it is to do certain things, he responds it is likewise difficult for him to take the pills his doctor describes, often they make him sick. But he takes them, because the doctor has studied, and knows better, and the Grand Ayatollah doesn't try to challenge the doctor based on his own insignificant knowledge of medicine using "reason" of all things.
There are at least two things wrong with this, the first being that doctors are supposed to operate on the basis of empirical determinations conducted by others. I don't mean to subscribe to scientific othodoxy in its entirety, in fact I find Thomas Kuhn's ideas quite appealing, but surely there is a difference between knowing that cyanide kills people and knowing that Islam forbids the shaking of hands of members of the opposite sex. The former you know because you see people die when they take it. The latter interpretation, derived from text one considers sacred (obviously as noted above the necessary predicate), enjoys no similar empirical privilege--you can't "know" it's right in the same way, study won't "prove" it in the same way.
But more centrally, we hope doctors have no vested interest in which drug they prescribe and when they DO have such an interest, it is a matter of signficant concern. There is. that is, a slight difference between scholars who, in good faith and through intensive interpretive effort, have come to conclude that 20% of one's profits should be given over to them (better stated, given over to their schools or other good works to which they put the money--no suggestion the clerics are engaging in Jim Bakker style profligacy) and a doctor who decides that Drug A is the one to prescribe in a world where it doesn't affect her materially whether or not the patient takes Drug A or Drug B.
Still, as a story, cleric studied and therefore knows best works pretty well to the average lay person. I can point out how certain derivations of text seem more driven by ideological, political, extra Islamic normative commitments and the like than any "pure" interpretation, and of course, it can be pointed out that I didn't study in Najaf for three decades like _____ [insert name of favorite Grand Ayatollah here] and of course I didn't, and that pretty much ends the discussion. Electrical engineer thinks, yes. just like Hamoudi knows the Bill of Rights, Sistani knows the rules of sale under fiqh. It's hard to fight the intuitive appeal despite the problems with it.
So I'm not the threat to the theory. Well obviously I'm not the threat, no revolutions begin in Pittsburgh to my knowledge, but neither is Mir Hosseini is the point. He can be safely dismissed under this theory as one who just doesn't know, doesn't understand as the clerics do. He hasn't studied like they have, doesn't get it like they do. He may have charisma, he may have supporters, but the theory holds strong, and can be used within the mechanisms of the state devoted to the theory to suppress that dissent.
The problem, instead, arises when the challenge comes from within. In Najaf, that is rarer, in that the clerics there make no political claims or at least quite few and certainly do not claim the seat of government. Still, when one claims to be the Hidden Mahdi, or in touch with the Mahdi, as Yamani has claimed to, the reaction can be fierce, as the implication to scholarly authority is significant. Not that fierce, mostly because most folks who make these claims fall flat, and are best ignored, but certainly fierce enough that if the claim had traction, it would certainly quite strong objection. The concern with the rather wacky theories of Fadlallah in Lebanon is another example of potential concern, but he was so out there on his ideas that neither Najaf nor Qom saw enough of a threat to do much toward the end but describe his ideas as, to quote one junior cleric, as, and I quote literally, "queer" (shadh).
By contrast, in Qom, Iran's center of knowledge, the stakes are higher. Because the reality is that the "we've studied" idea might work to get women's hair covered up, the clerics all think alike on that, the idea is deeply institutionalized, but it has a glaring Death Star weakness when concerning political control of the state under the aegis of the Leader-- the clerics in Najaf have also studied, they don't think jurists should control the state. So if the point is rule of the jurist, you can't ignore the problem. You can ignore me, I can talk of political circumstances located in anticolonial vitriol that helped give rise to the theory, but we know the answer to that (I haven't studied). But what if I simply say "but Sistani has also studied decades, and he doesn't seem to agree with you." That is much more dangerous. That there are varying jurists in Qom who have said the same thing since the outset of the revolution has to be of deep and abiding concern to the regime. Such ideas could very well "corrupt" the state's mechanisms and spread virally within it. A judge might well have no problem sentencing a 24 year old Iranian dissenter to punishment, the judge has been vetted by the system, owes his loyalty to it, how could the 24 year old possibly protest on a reasonable basis the conclusions respecting Islamic rule of a virtuous scholar who has studied longer than she the activist has been alive?
Could you really rely on the judge to do the same with a cleric who clearly knows his shari'a, better than the judge we can assume? Is it possible the judge might be tempted to wonder about the true political role of the jurists if the jurists are split? You may in some cases think it's okay to rely on the judge, you may think the judge will dismiss the jurist as having been deluded by something (politics, money, Western corruption), but it might not be worth the risk. Better to bring in even MORE loyal people, ensure even CLOSER control, exercise GREATER oversight, ensure COMPLETE insularity from the balance of the state's mechanisms to prevent the spread of these ideas, ones given by those who have studied and who because of that must be suppressed all the more fiercely.
Because if your entire theory rests on the fact that you know best because you've studied it more, you can withstand many things, but the one that you might not be able to, the one thing that might prove the Achilles Heel of the entire exercise, would be a fellow who has studied just as long, in precisely the same place, and who disagrees with you.