Public Law
Amir Mohajer Milani
Abstract
Introduction
The history of modernity in Iran, regardless of its origins, begins with the Iranian constitutional movement—marking the moment when Iran inevitably entered the realm of European thought. This movement was supported by three influential groups: the clergy, intellectuals, and court ...
Read More
Introduction
The history of modernity in Iran, regardless of its origins, begins with the Iranian constitutional movement—marking the moment when Iran inevitably entered the realm of European thought. This movement was supported by three influential groups: the clergy, intellectuals, and court elites, each with different views and motivations. On one hand, the movement could not transcend the traditional structures of Iranian society and therefore required the support of religious authorities to succeed. On the other hand, the religious thought of the time was not equipped to shoulder the weight of constitutionalism without undergoing reform. Consequently, the idea of religious reform became a central concern of the reformist movement from the outset, leading to the development of more complex theoretical reflections. In this context, Javad Tabatabai, one of the most significant theorists of intellectual movements in Iran, held a distinct view compared to many of his contemporaries. He argued that religious reform within Sharia-based Islam was possible only within the realm of law—through the transformation of Sharia law into a modern, historically-informed legal system. According to him, this transformation provided the conditions for the reinterpretation of the Sharia-based legal text through the lens of modern legal theories originated from the philosophy of modern law. This process of (re)interpretation, in Tabatabai’s view, resulted in the new within the old while eliminating the old within the old, thereby paving the way for modernity in Iranian society. Tabatabai contended that the constitutional movement, whose legal dimension had overshadowed its political nature, exemplified this model of theory in practice by reshaping the logic of religious understanding and legitimizing the transformation of Sharia law into the modern legal system. The present study aimed to offer a critical reading of Tabatabai’s theory on the Iranian modernity and the relevance of legal debates therein.
Literature Review
The discussion on religious reform and its impact on modernity, beyond broad and often inconclusive and futile debates like secularization or laicization, presents a significant challenge—especially when attempting a scholarly analysis that ought to account for the diversity of religions and the singularity of human societies. As Marcel Gauchet (2006) has aptly explained, this complexity makes theorizing in this field particularly difficult. The spectrum of theorizations on religious reform in Iran ranges from relatively simple ideas, such as Akhundzadeh’s notion of Islamic Protestantism or Mirza Malkam Khan’s minimal interpretation of Islam (Tabatabai, 2013), to more intricate perspectives such as Shariati’s sociological analysis (Shariati, 1973), Soroush’s hermeneutic discussions (Soroush, 1991), and Hajjarian’s sociological explanations of the secularization of jurisprudence (fiqh) (Hajjarian, 2010). However, according to Tabatabai, these theories are not only insufficient but also fail to account for the Sharia-oriented nature of Islam and establish a point of relevance with history of Iranian thinking. As a result, they cannot fully explain the evolution of religious thought in contemporary Iran. As a theorist of the historical decline and the impossibility of thought in Iran, Tabatabai dedicated a significant portion of his later and more complex writings to addressing this issue. He raises a crucial question, if the term religious reform can be applied to Islam, what would be the indigenous theory of religious reform within the Sharia-based Islam? Tabatabai (2021) rightly considered this one of the knots and underexplored questions in the history of Iranian thought. For him, addressing the issue is key not only to understanding the history of thought in Iran but also to shedding light on the history of concepts in contemporary Iran. His general response to this question lies in the realm of law. Tabatabai contends that in Sharia-oriented Islam, religious reform is only possible through the transformation of Sharia law into a modern legal system. He argues that Iran’s constitutional movement exemplified this approach, as the constitutional movement introduced two groundbreaking perspectives within the Islamic world—particularly in Shia Islam: first, the permissibility of transforming
Sharia into a set of codified laws, and second, the possibility of interpreting these laws through the modern law. This created an unprecedented transformation in the understanding of Islam. The current research sought to provide a revised and coherent account of Tabatabai’s thought, focusing on two key areas: his theorization of religious reform and its application to the constitutional movement. However, rather than uncritically accepting his assumptions, unspoken premises, or reasoning, the analysis aimed to challenge his single-factor approach in explaining the evolution of religious knowledge and tradition over the past two centuries, calling for adjustments and a more nuanced perspective. Tabatabai’s legal-oriented interpretation of religious reform in Islam is unprecedented. Yet, despite its significance and its high explanatory power in understanding contemporary religious thought, his theory has received little critique or scholarly reassessment. The only existing work on the subject is Javad Miri’s short treatise in Persian: The General Theory of Religious Reform: Rereading Seyyed Javad Tabatabai’s Narrative of Constitutional Political Philosophy (2021). However, despite the title, Miri limited himself to a few general and somewhat hasty criticisms in the opening pages before shifting his focus to critiquing other aspects of Tabatabai’s work.
Materials and Methods
The present study relied on documentary research and content analysis to provide a coherent account of Tabatabai’s complex theory of religious reform.
4. Results and Discussion
Tabatabai argued that modern legal knowledge could play a significant role in reforming Sharia-based Islamic thought. In his view, transforming jurisprudence (fiqh) into legal codes creates a lasting separation between these laws and Islamic jurists (faqihs). This detachment of legal texts from the guardians of the traditional view of Sharia paves the way for legal scholars to take on the role of interpreting and understanding these legal codes. Free from the discursive constraints of the Islamic jurist (faqih) and unbound by ideological influences, modern legal scholars can apply modern legal theories and philosophies to reinterpret fiqh-based legal codes. Tabatabai sees this as the only viable path to religious reform within the Sharia-based Islam. While the idea that pragmatic jurisprudence (fiqh) can facilitate religious reform at the intersection of fiqh and law is significant and valuable, it can be questioned from various perspectives. Perhaps the most fundamental criticism lies in its core assumption: the separation of Islamic jurists (faqihs) from fiqh-based legal codes. At least within the Iranian legal system, such a separation has not yet materialized.
Conclusion
According to the findings, while Tabatabai’s theory of religious reform demonstrates a stronger capacity for indigenous understanding and a more coherent interpretation of this complex issue compared to competing perspectives, it cannot be considered a definitive or comprehensive explanation of the evolution of Shia religious thought in the modern era. The primary criticisms of his theory include its reliance on a linear evolutionary conception of history, its comparison of fundamentally incommensurable categories, its one-dimensional interpretation of the constitution as merely a legal matter, and its misreading of key religious texts.
mahdi shahabi; mohammadreza mohammadi; Mortaza dehghanNejad
Abstract
From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition ...
Read More
From Naseri era until Constitutional Revolution because of lack of Rule of law as a symbol of modern government, voluntarism or king’s volition was one of the most important basis of legal rule validation that had deep roots in traditional and intellectual background of Iranian society. This volition received its legitimation from God’s will and people as peasants, by accepting this issue, considered this power transformation as a kind of charisma. However, because king’s volition came out of king’s characteristics, it was considered to have a variable basis and their derived rule had characteristics such as unpredictability, lack of equality element, uncertainty, lack of continuity and limitation. These features in contrast by modern legal paradigm could not have structure based on natural justice or legal justice and eventually led to the Constitutional Revolution. The major goal of this research is to analyzing the characters of traditional voluntarism frome the perspective of the modern voluntarism. Therfore, it would be possible to clarifing the structural challenges of the pre-revolutionary legal system.
Mehdi Shahabi
Abstract
Legal pluralism can be limited to formal and technical analyses; it could mean the governing of different legal mechanism to identical situations. Meanwhile, this meaning of legal pluralism hinders the judgment of all realities of the legal system and its development. Legal pluralism should not be investigated ...
Read More
Legal pluralism can be limited to formal and technical analyses; it could mean the governing of different legal mechanism to identical situations. Meanwhile, this meaning of legal pluralism hinders the judgment of all realities of the legal system and its development. Legal pluralism should not be investigated on the legal mechanisms level, but rather in the foundations and origins of the legal rules. This meaning of legal pluralism can be vertical or horizontal. Vertical pluralism is accepting several foundations in the same lenght, and lower foundation obtains its validity from higher foundation. It is horizontal when several foundations are in same width and no foundation doesn’t obtain its validity from other foundation and they are independent. In any case, both types of pluralism lead to substantive diversity of legal rules. Legal pluralism also provides for development in the legal system and most importantly justifies the evolution from traditional law to modern law and from modern law to postmodern law.
