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Reviewed by:
  • Shi'i Jurisprudence and Constitution
  • Vanessa Martin
Shi'i Jurisprudence and Constitution by Amirhassan Boozari, 2011. (Palgrave series in Islamic Theology, Law, and History.) New York: Palgrave Macmillan, xii + 252 pp., £58. ISBN: 9780230110731 (hbk). [JE]

This work approaches the subject of constitution, and in particular the Iranian Constitution of 1906 and the Supplementary Fundamental Law of 1907, through the perspective of Islamic legal tradition. More precisely, it argues that any treatment of this subject should be based on an inter-tradition, analytical, and jurisprudential approach, exemplified by Shi'i usuli rationalism. Boozari seeks to illuminate Shi'i constitutional thought by reference to the juristic foundations of its ideas as exemplified in fatwas, treatises, and constitutional texts, using their inherent theories and their juristic terms. In particular, he addresses the role of popular sovereignty within Islamic constitutional thought. In the course of the discussion, he weighs the rights of people against both the powers of the ruler, and the need for conformity with the shariah. He remarks that in Muslim society, religion is the most important element in constitutional culture, and in religion, law has had a crucial role in providing a system of norms to regulate relations between individuals.

Boozari argues that the constitutional revolution was partially the result of a long-standing legal debate over legitimacy, the theory of the just sultanate, and the doctrine of imamah (leadership), whereby only the Imam can be seen as the rightful ruler. This theory created for the constitutionalist 'ulama in 1905-11 the problem that since the only legitimate ruler could be the twelfth imam, what status could be accorded to a constitutional regime based on popular sovereignty? How could constitutional law become a reliable juristic basis for the regulation of the relationship between the ruler and the people? Leading jurists, especially Akhund Khurasani, whose support played a significant part in the victory of constitutionalism, could not have done so without there being a basis for the engagement in [End Page 340] jurisprudence. The key question, however, was to explain how jurisprudence endorsed popular sovereignty within the context of the literature on the status of who ruled in the absence of the infallible Imam. The theory that developed was based on the authority of the limited guardianship of the general deputies (vilayat-i faqih), which could be used to legitimate popular sovereignty in the sense of endorsing the rights of the people. Thus a new principle was created in the just sultanate debate that the people had the right to rebel against an oppressive ruler. Indeed, Akhund Khurasani even said that rebellion was mandatory, for which he used precedents from the time of the Prophet and Imam 'Ali.

However, a potential source of conflict as between such a shariah based concept of constitutionalism and the version derived from the West was equality. To the constitutionalist 'ulama, equality meant equality of the powerful and the weak, of rich and poor in their rights before the law. Another view they took was that, because of the inclusive and consultative nature of constitutionalism, every citizen had the right to control the government through the political system, and therefore to be treated equally by the law. In this way they in effect avoided the problem that equality of all meant equality regardless of religion in constitutionalism, a point that was raised by the secularists at the time, and an issue that Boozari does not sufficiently address.

One issue of significance which he does raise is the question of the jumhur-i Muslimin, the general community or public of Muslims. In his argument on the restitution of Muslims' reserved rights, Akhund Khurasani argued that 'the sovereignty of political rule belongs to the jumhur-i Muslimin'. Since the term occurs in a Shi'i argument on the consequences of usurpation by oppressors of the Imam's rights in his absence, it does not appear, at least from the discussion here, to have received further elaboration. Nevertheless, it would appear to reflect an apparently innovative introduction of the concept of public opinion and its influence into the discourse on the question of prohibition of oppression, and thus of who rules in the absence of the Imam...

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