Islamic Law and International Law in the Islamic Republic of Iran’s Constitution
Considering the main concept being explored in this volume, that of mixed legal systems, some initial remarks regarding the relationship between Islamic law, the Iranian constitution, and international law are necessary.
Following the Islamic Revolution of 1979, the new Iranian constitution was prepared by a number of lawyers, Islamic scholars, and experts and then approved by the people in a nationwide referendum in the same year with a majority of 98.2 percent of eligible voters. The lawyers who engaged in preparing the draft of the constitution had a background in Western legal systems, such as common law and civil law. A special assembly named the Assembly for the Final Review of the Constitution was elected by the people to finalize the draft. Therefore, the Iranian constitution was approved by the people twice, both directly and indirectly. The 1979 constitution was amended in 1989.
The relationship between Islamic law and modern international law from the perspective of the Iranian constitution is very complex and may be described as a multilayered system of Islamic law, domestic law, and international law. Indeed, the constitution has established a unique legal system. To better understand this system, one may find it useful to differentiate between the endogenous (inside) and exogenous (outside) factors of the constitution (see Falsafi 2000):
• Endogenous factors. Power in the Iranian constitution has been distributed in a special manner. The constitution’s foundation is the consideration of God’s exclusive sovereignty and right to legislate and the necessity of submission to God’s commands. For the achievement of this kind of sovereignty, the constitution has provided for a leadership institution, known as the Guardianship of the Jurist (Velayat-e faqih, or Rahbari), and two additional branches of power, the Guardian Council (Shoraye-Negahban) and the Expediency Council (Majme Tashkise Maslahat). These institutions are under obligation to fulfill the sovereignty of truth and Qur’anic justice.
• Exogenous factors. The outside elements of the Iranian constitution are the fundamental charter of Islam (Qur’an) and the interpretation of leadership (Imamate) by the Jafari school of Islamic law.1 In this regard, article 1 of the constitution stipulates that “the form of government of Iran is that of an Islamic republic, endorsed by the people of Iran on the basis of their long-standing belief in the sovereignty of truth and Qur’anic justice.” The constitution’s stipulation regarding the sovereignty of Islamic criteria is not limited to article 1. Under article 72, the Iranian parliament (Majlis) cannot enact laws that are contrary either to the roots and commandments of the official Islamic school of interpretation of the country or to the constitution. To enforce this limitation, article 91 establishes the Guardian Council, which consists of 12 members: 6 faqhieh (Islamic jurists), who are appointed by the supreme leader, and 6 jurists, who are elected by parliament from a group of Muslim lawyers from several branches of law that were proposed to the parliament by the head of the judiciary.
According to articles 4, 72, and others,2 this council is, among other things, competent and obliged to review all draft laws passed by parliament, regarding their compliance with Islamic law. As an additional safeguard to ensure the superiority of Islamic law, the constitution obliges Iranian judges to refrain from applying any executive decrees and regulations that are at variance with Islamic rules.
The most important article in this regard is article 4, which shows that Islamic law has been integrated into the Iranian legal system. According to this article, all laws and regulations must absolutely and generally be based on Islamic criteria.3 Hence, national policies and domestic laws and regulations (article 4) and foreign policy (article 3, paragraph 16) must be based on Islamic rules and criteria, and so must any interpretation of the constitution itself.
Leadership (sovereignty of the most qualified Islamic jurist) is another outside element that, according to articles 5 and 57, is bestowed on the supreme leader. According to article 110, the delineation of the general policies of the Islamic Republic of Iran and the supervision over the proper execution of the general policies of the system are among the duties and powers of the supreme leader.
Thus, in the Iranian legal system, there are three determinant factors: Islamic rules and criteria based on the Jafari school system of interpretation, the Iranian constitution, and the system of Velayat-e faqih. In light of these particularities, we can now examine the relationship between Islamic law and international law in the Iranian constitution.
International Law in the Constitution
None of the Iranian constitutions, before or after the Islamic Revolution of 1979, took an explicit position toward international law. However, the constitution that is now in effect, in some of its principles and chapters, points to the relationship between international law and the constitution.
The Iranian constitution is divided into 14 chapters and consists of 177 articles. The sections that are relevant to international law are located in several chapters and articles, including chapter 10 (on foreign policy) and articles 3(16) and 11 (on the Islamic community, or Ummah), 77 (on treaties), 81 (on concessions agreements), and 125 (on signing treaties).4
In general, a distinction must be made between international treaty law and customary law. Like every state, Iran is party to most major international treaties, including human rights and humanitarian law conventions. With regard to international treaties, article 9 of the Iranian Civil Code states, “Treaty Provisions which have been, in accordance with the Constitutional Law, concluded between the Iranian Government and other government, shall have the force of law.”
According to article 9, if the respective treaties have been ratified in compliance with the constitutional prerequisites, they share the rank of regular parliamentary laws in the domestic hierarchy of norms. It seems that the Iranian legislator promulgates theories that tend in the direction of strong monism, giving precedence to domestic law and denying any binding force of treaty provisions that are inconsistent with Iranian domestic law or Islamic law (see Moschtaghi 2009: 386–88).