Political theology is by far extent an exercise in revelation and its extensions in modern politics and law. As Carl Schmitt (1888-1985), the renowned German political theologian ascertains, “all the significant concepts of the modern theory of the state are secularized theological concepts not only because of their historical developments … but also because of their systematic structure” (Schmitt, vol. 1, 1985, p. 36). For Schmitt, the juridical terms such as ‘exception’ and ‘the omnipotent lawgiver’ are the secularized version of theological concepts of ‘miracle’ and ‘the omnipotent God’, respectively (ibid). Schmitt, whose theory is inspired by historical changes in Christianity as well as the triumph of modern, constitutional state in the West, explains how miracle was removed from the scene when Christianity underwent the Occam's razor of secularization. Therefore, from the perspective of political theology, “submission to the faith” is the raison d’etre, and as Heinrich Meier puts it well, “obedience, submission, revelation, and authority” are the “unchanging certainties” of the cause of any form of political theology (Meier, 2006, p. 206).
Although Schmitt’s political theology is very much a Western scholarship on the genesis of modern state and secular law, but as it usually happens in such cases, he stands beyond his time and his endeavor has lessons for others with a different heritage. Schmitt’s conception of modern jurisprudence enables us to delve into Islamic sacred sources to study the religious background of modern politico-juridical terms including sovereignty, guardianship (wīlāya), public interest (maṣlaḥah) and its opposite mafsadah. In case of the pair of maṣlaḥah and mafsadah, these two originally Quranic terms, are inserted into traditional Shīʿa jurisprudence, and later, in the twentieth century, became incorporated into the secular constitutional law of the post-revolutionary Iran. Considerable corpus of literature produced in Shīʿa jurisprudence on these concepts gives researcher opportunity to read and analyze them from the perspective of political theology.
For example, maṣlaḥah (lit. public interest) as a key concept in Shīʿa jurisprudence was created to adjust the statutory law with the Sharia to find a solution for cases that are not regulated by the four Shite sources (lit. adillay-i arbaʿi) of the Quran, Sunnah, ijmāʿ (lit. consensus of jurists) and ʿaql (lit. reason, intellect) in public interest. As proof of Sharia, in public sphere, maṣlaḥah acts as a nexus between the ideal – Faith – and the reality – good government – and is always defined as in opposition to mafsadah (lit. evil), e.g., what brings harm to society and to the individual. The common objective and ground between the law and maṣlaḥah is to serve the benefit (both material and spiritual) and the interest of the ummah (lit. community of believers) by looking for a solution in domains where the Sharia is silent. Maṣlaḥah also must protect the five essential values: namely religion, life, intellect, lineage and property.
Here maṣlaḥah functions as supplementary to the law and intends to fill the gaps in the judicial manṭaqat al-farāgh (lit. lacuna), adjusting them according to the developments of time. In addition, the Lawgiver (lit. shāriʿ) means the unity and coherency of the law, which is equivalent to the unity of His essence (tawḥīd). Maṣlaḥah is synonymous with istiṣlāḥ (lit. reclamation, cultivation) and is usually paired with istiḥsān (lit. approval, consent), which is a principle that permits exceptions to strict legal reasoning in favor of the public interest to avoid or alleviate hardship according to the Quran and the Sunnah. Maṣlaḥah is not limited to public interest of the ummah and is broad enough to encompass the private sphere as well. For instance, regarding personal status, Shīʿa jurists discussed the application of maṣlaḥah in areas where the Sharia is silent. In such cases, just jurists are regarded as ulu al-amr (lit. the guardian of the cause) and are in charge of administrating the affairs of believers and preserving the community of Muslims from dispersion. The Lawgiver appoints fuqahā to be in charge of the worldly interests (lit. maṣāliḥ) and the daily religious life of believers.
Due to the adoption and prevalence of statutory law by modern nation-states since the beginning of the twentieth century, the gap between Sharia and secular law has become entrenched. Although an old concept, the new doctrine of maṣlaḥah and its application in the public sphere and in modern legislation should be understood in the context of developments in the Īmāmī jurisprudence and its encounter with new problems establishing a Shite government in post-revolutionary Iran. Maṣlaḥah also should be studied regarding its connection to ijtihad (particularly ijtihad-i pūyā, lit. dynamic ijtihad) and the emergence of the new school of fiqh-i jawāhirī in Shite jurisprudence. Hence, maṣlaḥah has become an inseparable part of good governance and public policy in post-revolutionary Iran, culminating in the idea of the Expediency Discernment Council, which is supposed to adapt the statutory law with Sharia.
As a result, a shift in the classic doctrine of maṣlaḥah began with the establishment of the Islamic regime in post-revolutionary Iran; the interest of the new political system is preferable to the interest of the Law and to the primary edicts (aḥkām-i awalīyyah) of Islam. Pertinent to this is the new output of “governmental decree” (lit. ḥukm-i ḥukūmatī), which was intended to be a new solution for domestic political deadlocks of the regime. In principle, whenever conditions require, the walī can issue decrees beyond the framework of the statutory law and/or the Constitution to find a loophole for a legal and/or political problem. Here, ḥukm-i ḥukūmatī albeit goes beyond the boundaries of the objectives and purposes of the classic doctrine of maṣlaḥah and stands beyond the law. The doctrine of maṣlaḥah always necessitates the ruler remain faithful to the framework of the Sharia and adjust the modern laws to it. In Khomeini’s conception of maṣlaḥah, the law (both Sharia and modern secular law of the state) can be breached for a better purpose, which is the interest of the establishment.
Given this, any research on this topic should first start with a discussion on the classical doctrine of maṣlaḥah in uṣūlī jurisprudence (from 15th century forward) and study any doctrine of maṣlaḥah in relation to other features of the uṣūlīs jurisprudence such as ijtihad and the status of mujtahid in issuing fatwa and in finding solutions for issues where the Sharia remained silent. Second, it should investigate how this juridical term was incorporated into the modern constitution in order to find a solution for religious deadlocks. Furthermore, it should show how and when this term and other related concepts were secularized and intersected with politics and particularly with the idea of good governance in contemporary uṣūlī jurisprudence. Therefore, the focus should be on the modern concepts of maṣlaḥah and dharūra (lit. necessity) in the public sphere in the key texts of a number of Shīʿa jurists including, but not limited to, Rūḥollāh Khomeini, Mohammad Bāqir Ṣadr, Hossein Ali Muntaẓirī and Yūsuf Ṣāniʿī.
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