Wasatiyya Discourse in Shi’i Islam: Ayatollah Montazeri and Human Rights Jurisprudence

Abstract

There are significant differences of opinion about the successes and failures of Iran’s clerical government, but it can hardly be disputed that the experience has led to the flourishing of Shīʿī political thought. In the past four decades, aided by government support, extensive literature has been produced endorsing the political theology of “governmental Shīʿism” conceptualized by Khomeini in the early 1970s. Numerous other schools of thought have also emerged in opposition to the militant Shīʿī interpretation of religion by governmental Shīʿism. Using the concept of Wasatiyyah to conceptualize the most important counter-discourse to governmental Shīʿism, this article addresses the life and thought of Ayatollah Montazeri, one of the most prominent Wasatiyyah thinkers. Focusing on the issue of human rights in Montazeri’s thought, the article seeks to demonstrate how Montazeri instigated a fundamental reform of the seminary episteme, and by doing so articulated intra-religious reasoning in favor of the promotion of modern concepts such as human rights.

1. Introduction

Due to the sect’s lack of proximity to governance, the political thought of Twelver Shīʿism remained largely unchanged for more than a millennium. However, in the last decades of the twentieth century, for the first time since the early centuries of Islam,1 a group of Shīʿī clerics gained power in Iran, an experience that led to a flourishing of Shīʿī political thought. The breadth of the influence of Ayatollah Khomeini’s thought, as well as its receipt of government support, led to the emergence of countless thinkers whose intellectual project is to promote governmental Shīʿism.2 For the past four decades, many thinkers have sought to establish supportive foundations for the discourse of governmental Shīʿism by re-reading Shīʿī political history as well as the ideas of the scholars of antiquity and the Middle Ages. The experience of the Shīʿī clerics’ governance in Iran has also provoked a backlash and the emergence of a wide range of thinkers who, while challenging the religious validity of the governmental Shīʿism, speak out about the destructive effects of this experience, both in the religious and political spheres. The breadth and depth of this thought is such that one can speak of the emergence of several schools of thought,3 the most well-known of which is the religious reform movement, which emerged in the mid–1980s and has played a decisive role in the political developments of Iran over the past three decades.

This article proposes that the concept of Wasatiyyah can explain the ideas of the thinkers of the Shīʿī–Iranian reform movement. The life and thought of Ayatollah Hossein Ali Montazeri are examined within the framework of the Wasatiyyah school of thought. This article argues that Montazeri had a unique place among the Shīʿī–Iranian Wasatiyyah thinkers. His special position is partly due to the fact that he played an influential role in Iranian politics. More importantly, Montazeri, as a marjaʿ-i taqlīd, accommodated progressive ideas within the seminary’s episteme. Michel Foucault defines a society’s episteme as the rules within which the thinking and worldview of the people of that society take shape. This episteme shapes the context of the discourses that can be produced in a society (Foucault 1989). The Shīʿī seminary has an independent episteme that has set the rules for its thinkers for centuries. According to the seminary episteme, individuals are duty-bound human beings and a person’s rights are determined based on his or her religious beliefs. For this reason, the accommodation of modern concepts such as human rights and democracy within this episteme faces significant challenges.

In this article, I demonstrate that Montazeri made fundamental changes to this episteme and was able to accommodate concepts such as human rights and democracy in Shīʿī politico-religious thought using the accepted sources and methods of scholarly work in the seminary. Firstly, I address the key elements of Khomeinism in order to demonstrate that this discourse, both in theory and in practice, can be counted among the radical discourses of the Islamic world. In the second part of the article, after explaining Montazeri’s unique position among Wasatiyyah thinkers, I focus specifically on the issue of human rights in his thought. In doing so, I illustrate how Montazeri was able to promote the idea of innate human dignity regardless of religious belief, as well as defend human rights, within the episteme of the seminary.

2. Khomeinism: Militant Shīʿī Discourse

Khomeinism was the first and most significant modern political stream of thought in the Shīʿī world. It emerged in the 1960s and has played a decisive role in the Iranian political mosaic since then. The radicalism of this discourse is evident both in its theoretical framework, i.e., the doctrine of wilāyat-i faqīh, and in the track record of the political system of the Islamic Republic.4 The doctrine of wilāyat-i faqīh exemplifies an authoritarian reading of Shīʿī political theology. According to this doctrine, the source of government legitimacy is the will of God and there is no place for popular sovereignty. The political system proposed in the doctrine of wilāyat-i faqīh is based on discrimination. The position of the head of state is reserved exclusively for a jurist, and the clergy enjoy special advantages over ordinary people in other political institutions as well. Its conceptual approach is based on the duties of believers and religious scholars, an approach in which citizenship rights are immaterial. There is not even a single mention of the concept of human rights in this doctrine, which can in no way be interpreted as consistent with modern concepts such as democracy, freedom, pluralism, and tolerance.

The political structure that emerged after the 1979 revolution was not necessarily the implementation of Khomeini’s doctrine. The drafting of the constitution and the establishment of modern institutions indicated that Iran’s ruling clergy had complied with a number of the rules of politicking in the modern world. Principles relating to citizenship rights, as well as electoral institutions such as the parliament and the presidency, none of which were contained in Khomeini’s doctrine, were incorporated into the new political structure. One may imagine that the Shīʿī ulema in government posts moderated their views to meet the needs of the modern world, but such a claim is inconsistent with the way that the ruling clergy have governed over the more than four decades since 1979. It is correct to say that the ruling clergy of Iran have not been strict in following religious rules: they have demonstrated pragmatism whenever needed (Tamadonfar 2001). Khomeini went so far as to theorize the priority of political considerations over religious principles. According to him, if the interests of government demand it, the ruling faqīh has the right to suspend or even violate the fundamental principles of religion. This jurisprudential innovation of Khomeini has been conceptualized as the expedient jurisprudence (Hajjarian 2001, pp. 91–122; Ghobadzadeh 2014, pp. 78–84). These flexibilities cannot be considered as signs of moderation. In fact, the purpose of these flexibilities is to expand the clergy’s capacity to advance its own authoritarian policies and to more effectively constrain citizenship rights.

The ruling clergy have also formulated a harsh and highly discriminatory interpretation of the sharīʿa, and force all citizens to comply with this reading through the coercive measures of the state apparatus. On the basis of this interpretation, many discriminatory laws have been enacted that grossly violate women’s rights. The ruling clergy have a similarly indefensible record on the rights of religious minorities, including those of Sunnī Muslims. Compared to other religious minorities, the situation of Bahāʾīs is much worse; they are generally disallowed from enjoying basic citizenship rights, such as the right to education and the right to work.

There can be no defense either of the performance of governmental Shīʿism in terms of tolerance and moderation. In the early years after the revolution, the ruling clergy’s rise to power was accompanied by their elimination of all political rivals. It only took them a few years to remove all competing groups from the political arena. This intolerance was not limited to secular groups and ideologies such as communists, liberals or nationalists; Shīʿī religious groups dissenting from governmental Shīʿism were also severely repressed. Over the past four decades, the Islamic Republic has also imposed many social restrictions on all Iranians. The issue of stoning and mass executions, as well as the implementation of sharīʿa punishments without the slightest concession, leaves no room to doubt the claim that Iran’s ruling clergy have a radical and intolerant interpretation of religion. Their monopoly on true Islam has been a central claim of the ruling clergy, and terms such as “American Islam” and “English Shīʿism” have been invented to invalidate other interpretations of the religion. Not surprisingly, tension and rivalry have been key features of the ruling clergy’s foreign policies in relation to both Muslim and non-Muslim nations. A further feature of Khomeinism is its implacable opposition to the West. In Khomeini’s discourse, not only is opposition to the West an integral component of foreign policy, but the elimination of elements of Western culture is a key goal in the cultural and social spheres as well. In sum, governmental Shīʿism’s reading of religion, and the manner in which it is implemented in the political, social, and international relations spheres has no place in the conceptual framework of moderate Islam. This is why concepts such as radical, extremist, violent, and hostile have been widely used to describe the political thought and behavior of Iran’s ruling clergy.

3. Backlash against Governmental Shīʿism: Shīʿī Wasatiyyah Discourse

A new discourse emerged in the Shīʿī–Iranian world in the mid-1980s, widely referred to as religious reformism. The term Wasatiyyah can also be used to describe this discourse, as its English equivalent, moderation, is often used in the relevant literature.5 The use of the term Wasatiyyah highlights the similarities between Shīʿī and Sunnī reformism. At the same time, Wasatiyyah also means middle ground, and one of my key intentions in using this term is to emphasize the moderate position that Shīʿī–Iranian Wasatiyyah thinkers take in relation to the role of religion in the public and political spheres, a position lying between the extremes of Islamic radicalism and militant secularism.

This discourse is a direct and inverse backlash to the discourse of governmental Shīʿism. While the clerical Islamists succeeded in expelling all their rivals from the political arena in just a few years after the 1979 revolution, new ruptures soon formed in the governmental Shīʿī discourse. As will be discussed in the following section, Montazeri was ousted in 1989 from the second most-important (after Khomeini) position in the state. After that, and with the death of Khomeini, right wing Islamists came to dominate the political arena to the extent of removing the left wing from all centers of power. This caused some religious thinkers, who had supported governmental Shīʿism during the revolution and helped to institutionalize it in the early years after the revolution, to become disillusioned. Confronted by the Islamic Republic’s authoritarian and repressive path, they reconsidered their views on the role of religion in the public arena. The most prominent thinkers of this movement were Abdolkarim Soroush, Mohammad Mujtahed Shabestari, Mohsen Kadivar, and Hasan Yousefi Eshkevari—to name but a few. These thinkers had close ties with the leftist political Islamists and therefore played a decisive role in the reformists’ victory in the 1997 presidential election. In turn, the coming to power of the reformists created a conducive environment for this group of scholars, providing them with broader and more effective platforms to promote their ideas. With the support of Khatami’s reformist government, the granting of newspaper and magazine publication licenses increased sharply, and a significant proportion of the content of the resultant publication boom comprised religious reformist ideas. The open political atmosphere also made it possible for reformists to give public lectures and air reformist debates in the classroom. The seminary was not unaffected by this atmosphere. A significant number of religious intellectuals were educated in and retained close ties to the seminary, and spread moderate ideas through this forum as well. Even religious intellectuals without a such a background, in particular Abdolkarim Soroush, gained a strong presence in the seminary and, in addition to presenting numerous lectures in the seminary, held face-to-face debates and exchanged written arguments with many of its thinkers. Montazeri was among the seminarians who instigated a series of live debates and written exchanges of views with Abdolkarim Soroush and other religious intellectuals. A number of religious intellectuals, including Mohsen Kadivar and Emadeddin Baghi, were among Montazeri’s students and maintained close contact with him. The ideas of religious intellectuals and the open political and intellectual environment of the reform period had a profound impact on Montazeri’s thought. Many of the subjects he engaged with theologically in his classes and writings after 1997 reflected the ideas of the religious intellectuals and the issues raised in the reformist atmosphere of the Khatami years.

In addition to the issue of the relationship between religion and government, which is a central concern of the Shīʿī Wasatiyyah discourse, a wide spectrum of important issues has been discussed under the umbrella of this discourse. Various aspects of human rights (women’s rights, the rights of religious and ethnic minorities, children’s rights), and the issues of freedom, religious pluralism, tolerance, and apostasy are among the key matters subject to reevaluation by Shīʿī Wasatiyyah thinkers, who have offered modern readings of each one. In all these cases, it can be said that Shīʿī Wasatiyyah thinkers have denounced the strictness and extremism of governmental Shīʿism. In addition to traditional religious sources such as the Qurʾān, ḥadīths, and Shīʿī history, Wasatiyyah thinkers have also made use of various intellectual and philosophical schools of thought in the Western world in their attempts to challenge governmental Shīʿism. In their work, they have highlighted the commonalities and potential for cooperation and rapprochement between the two civilizations of Islam and the West.

The readings that the Wasatiyyah thinkers have articulated in relation to the aforementioned matters shift from a focus on the apparent meaning of Qurʾānic verses and ḥadīths towards an emphasis on the intent and purpose of religion. According to their interpretation, human dignity, regardless of religious affiliation, is of fundamental importance. Unlike militant secularism, the Shīʿī Wasatiyyah school does not deny the role of religion in the public and political arenas, but sees the purpose of religion in the public and political spheres as promoting social justice and ending discrimination. Tolerance and moderation are among the important elements that have been conceptualized in the debates of the Shīʿī Wasatiyyah thinkers. The discourse provides an interpretation of religion that takes the challenges of contemporary society into account and meets the needs of Muslims in the modern world.

While all Wasatiyyah thinkers share the aforementioned goals and aspire to the same broad outcomes, there is also considerable diversity among them. These Shīʿī thinkers can be categorized in various different ways. In addition to scholars trained in the seminary, a significant number of Shīʿī Wasatiyyah thinkers are lay scholars who have studied in universities and hold specializations in a range of disciplines, often the modern humanities. Another sub-group of these thinkers have both seminary experience and an academic specialization. Their fields of study often have a determining impact on the types of topics they choose and the resources they use in their discussions. The main areas of university scholarship Wasatiyyah thinkers have engaged in are philosophy, political science, theology, law, history, and sociology. The degree of influence and the audience of Wasatiyyah thinkers also varies according to their expertise. The vast majority of the influence wielded by these thinkers is on the educated middle class.

Generally, seminary study produces a sort of religious authority, and the main goals of people who study in the seminary are to don clerical robes and to take on the role of a religious leader. Individuals who have studied in the seminary perform religious rites and can earn a living in this way. However, there have always been some who, after completing their seminary study, have not sought a clerical occupation, and in some cases have become staunch opponents of the clergy and even religion. Ahmad Kasravi and Ali Akbar Hakamizadeh are among the most well-known individuals in this regard; both challenged the authority of the clergy after leaving the seminary.6 This phenomenon was relatively uncommon before the 1979 revolution, but today there are many scholars with a seminary education who have not chosen the clerical profession for various reasons. Disillusionment with governmental Shīʿism and the associated loss of face of the clergy is one of the key reasons for the spread of this phenomenon. Growing criticism of the clergy making money from religion has also been a contributing factor (Soroush 1995a, 1995b). Many contemporary Wasatiyyah thinkers have not chosen the clerical profession, despite their seminary study and qualification to undertake ijtihād independently, with some casting their clerical robes aside as well. Mohammad Mojtahed Shabestari, Mustafa Malkiyan, Hasan Yousefi Eshkevari, Hadi Qabel, and Abolghasem Fanaei can be cited in this regard. In addition to eschewing the clerical robes and profession, the content of the scholarly work these scholars produce also takes a different form from that of traditional jurisprudence. In their works, references to extra-religious sources, especially the philosophical and theoretical debates of Western thinkers, are so numerous that it can be said that they think within a Western and modern episteme rather than within the epistemological framework of the Shīʿī seminary. That is why they have been able to communicate with the educated middle class—for whom jurisprudential and intra-religious arguments are insufficiently convincing. Of course, in enjoying this benefit, such thinkers forfeit their capacity to take on a traditional clerical role, and thus they do not possess the religious authority that a cleric operating within the traditional framework enjoys. Their extra-jurisprudential episteme means the loss of the obedience of habitual believers. Such habitual believers usually comprise the less-literate sections of society, those who still practice their religious beliefs and rites within the framework of emulation,7 i.e., that they consider following the opinions and fatwas of a senior cleric to be a religious duty.

Among the Shīʿī Wasatiyyah thinkers, two individuals possess special status: Ayatollah Hossein Ali Montazeri and Ayatollah Yousef Sanei.8 Both of these Wasatiyyah thinkers constructed their arguments entirely within the episteme of the Shīʿī seminary, played their politico-religious roles within the same framework, and never studied or taught at secular universities. Both reached the highest rank in the seminary hierarchy, that is, marjaʿ-i taqlīd, and for this reason held a high level of religious authority and prestige. The exceptional importance of the ideas of these two thinkers in comparison with other Wasatiyyah thinkers arises from their laying of strong foundations for the promotion of human rights, democracy, freedom, and pluralism while also maintaining unqualified loyalty to the seminary episteme. Both Montazeri and Sanei were students of Khomeini, leaders during the revolutionary struggle, and occupied senior government positions after the revolution. However, both later withdrew from the government system and focused on research and teaching religious sciences in the seminary. Sanei had lesser standing than Montazeri, both in terms of government appointments, scholarly position and degree of influence in the sociopolitical arena. Of course, this is not to deny the significance of Sanei and his thought and influence, and his works as well as the reforms he bequeathed to Shīʿī jurisprudence is worthy of separate analysis.9 Notwithstanding, in the continuation of this article, I will examine the importance and thought of Montazeri.

4. The Significance and Status of Montazeri

Montazeri belonged to a generation of Shīʿī scholars who received their entire education in the traditional jurisprudential context, who never studied at schools or universities—which are modern phenomena in the Shīʿī–Iranian world. He was born in 1922 in Najafabad in central-west Iran, and entered the seminary at the age of 12, which remained the main platform for his scholarly and practical activities until the end of his life. Even when he was the designated successor to the Leader of the Islamic Republic (1985–1989), he was still based at the Qum seminary, and in addition to his political activity, taught at the highest level of seminary classes. In fact, it was during this period that he taught and published his most important jurisprudential–political work, the extensive Jurisprudential Foundations of the Islamic Government.10 Montazeri was one of Khomeini’s oldest allies and played an important role in the promotion of Khomeini’s ideas. He also had a pioneering role in identifying the potential of Khomeini’s personality and ideas. Montazeri, along with Morteza Motahhari,11 persuaded Khomeini to start teaching dars-i khārij12 in the 1940s (Montazeri 2000a, p. 193; Mo’asse-ye Tanzim va Nashr-e A’asar-e Emam 2006, pp. 96–97). Ayatollah Montazeri also played an important role in the designation of Khomeini as a marjaʿ-i taqlid. Due to his political activities and his association with Khomeini, Montazeri was imprisoned and exiled many times during the Pahlavi era.13

Montazeri played a determining role in consolidating the position of the clergy in the political structure of the post-revolutionary state. Khomeini had formulated the idea of wilāyat-i faqīh in Najaf, Iraq, in January 1970, and made no mention of it between then and September 1979, a few days after the principle of wilāyat-i faqīh was approved by the Assembly of Experts for the Constitution (Ghobadzadeh, forthcoming). Therefore, although Khomeini was the architect of the theory of wilāyat-i faqīh, he had no direct role in its incorporation into the constitution of the Islamic Republic. It was Montazeri who recognized even more than Khomeini himself the potential of the idea of wilāyat-i faqīh. Between the publication of the draft constitution and the election of the Assembly of Experts for the Constitution in June and July 1979, Montazeri presented the most coherent proposal of wilāyat-i faqīh and called for its inclusion in the constitution (Montazeri 1979; Randjbar-Daemi 2013, p. 654). He was resoundingly voted onto the Assembly of Experts for the Constitution, and became its Chair. In the Assembly of Experts, Montazeri, alongside Hassan Ayat14 and Ayatollah Beheshti,15 were the main proponents of the idea of including the principle of wilāyat-i faqīh in the constitution. It is not without reason that Montazeri, along with the two aforementioned personalities, are known as the architects of the faqīh-centered constitution (Saffari 1993, pp. 105–12; Schwerin 2015, pp. 42–64; Siavoshi 2017; Abdo 2001, p. 15).

In addition to chairing the Assembly of Experts for the Constitution, Montazeri briefly served as the Friday Prayer Imam of Tehran and later became the Friday Prayer Imam of Qum. After these posts, his most important official position was acting as the authorized representative of Khomeini in appointing members of the Supreme Judicial Council as well as judges throughout the country. Beyond this official post, Montazeri also founded several institutions and instituted many of the important occasions of the Islamic Republic’s calendar.16 The role of Montazeri was not limited to these examples, and through his public statements as well as meetings with the country’s officials, played a decisive role in guiding the policies of the fledgling government of the Islamic Republic. Montazeri’s influential role was not a result of his official judicial position, but rather due to the fact that he was in practice the second most powerful person in the country. It was for this reason that the Assembly of Experts of the Leadership appointed him as the successor to the Leader of the Islamic Republic in July 1985. The ruling of this Assembly of Experts referred to the fact that Montazeri “is currently accepted by the overwhelming majority of the people as the future leader, and the Assembly of Experts of the Leadership recognizes and approves this choice” (Ghasemi 2016, p. 176). As designated successor to the Leader, Montazeri gradually found himself at odds with other elements of the decision-making apparatus of the Islamic Republic. He was particularly critical of the continuation of the Iran–Iraq War (1980–1988), the treatment of political prisoners, censorship of the press, and the overall management of the country. Particularly after 1988, Montazeri made his criticisms public (Siavoshi 2017, p. 134).

In August 1988, the People’s Mujahedin Organization of Iran (PMOI), an armed opposition group to the Islamic Republic, invaded Iran with Saddam Hussein’s support. Although the attack was short-lived, ending quickly in the total defeat of the PMOI, it was followed by a horrific event known as the mass execution of ideological and political prisoners or the 1988 massacre.17 On the direct orders of Khomeini, political prisoners who remained true to their beliefs were executed without trial during August and September 1988 and buried in mass graves. The government of the Islamic Republic has never officially released the number of executions that took place, but various sources have estimated the dead to number up to 6000 (Abrahamian 1999, p. 215).

It was revealed after the fact that as soon as he learned of Khomeini’s decision, Montazeri tried unsuccessfully to prevent the executions. The publication of Montazeri’s letters to Khomeini in relation to this matter led to the removal of his designation as successor to the Leader. Despite not posing a serious challenge to the Islamic Republic at the time, Montazeri’s ousting did play a decisive role in delegitimizing governmental Shīʿism. The challenges that Montazeri mounted against governmental Shīʿism are internal, questioning the theoretical foundations of governmental Shīʿism in the language of religion. Such challenges have greater potential to cause damage than any challenge posed by secularists or even other religious groups because they speak to the part of society that is in fact the most important and influential social base of the Shīʿī government. This is very significant because, as mentioned earlier, other Wasatiyyah thinkers in Iran are not able to connect to this segment of society. In the realm of political action, despite Montazeri’s removal from all official platforms, the continuation of his influence was obvious at critical political junctures. His controversial speech on 14 November 1997 led to his house arrest for more than five years. In that speech, he warned of government interference in the seminary and the loss of its independence, and questioned the legitimacy of the Supreme Leader’s status as a marjaʿ-i taqlīd. Montazeri’s remarks about Khamenei’s lack of legitimacy as a marjaʿ-i taqlīd are widely cited as one of the most important pieces of evidence against the religious legitimacy of the Supreme Leader. Towards the end of Montazeri’s life, which coincided with the beginning of the Green Movement, he played a very active role in the day-to-day politics of the country and for this reason became known as the spiritual father and moral voice of the Green Movement (Dabashi 2017, p. 39; Schwerin 2015, p. 8). Montazeri’s progressive fatwas have also caused great controversy, some attracting extraordinary attention. Among these was a fatwa granting Bahāʾīs equal rights to other citizens of the country.18 Similarly, when the government was cracking down on dissent in the aftermath of the controversial 2009 presidential election, Mohsen Kadivar made a series of requests for the guidance (istiftāʾāt) of Montazeri, as a marjaʿ-i taqlīd, in relation to the legitimacy of the government. Without naming the Leader, the fatwas issued by Montazeri in response to these questions inferred that Khamenei, the Supreme Leader, was an oppressive leader. Susan Siavoshi writes about the importance of these fatwas:

It was in his juridical responses to Kadivar’s questions that Montazeri presented his most forceful case against unjust rulers, the rights of the people to dismiss them, and the process for adjudication in case rulers resist the popular verdict. It was also in these legal rulings that he, prompted by Kadivar, more emphatically than ever emphasized the right to resist an unjust system or ruler.

(Siavoshi 2016, p. 45)

Montazeri’s influence in day-to-day politics naturally diminished after his death in December 2009. However, more important than his role in the politics of the day is his legacy in the form of his scholarly works, which despite being progressive and compatible with the necessities of life in the modern age, are conceptualized and articulated entirely within the framework of the episteme of the Shīʿī seminary. There are few references in his writings to Western thought or philosophy; his thinking reflects and refers to Qurʾānic verses and ḥadīths and all his arguments are presented within the conventional methodology of seminary scholarship. Montazeri’s extensive works cover a range of topics, and cannot all be examined, even summarily, in the space of a single article. What I intend to do in the remainder of this article is to examine the concepts of human rights in Montazeri’s thought. By focusing on this topic, I want to show that Montazeri can be considered a Wasatiyyah thinker because, like Khaled Abou El Fadl (Abou El Fadl 2004, 2013), one of the prominent thinkers of the Wasatiyyah school, he emphasizes existing values in the religious tradition in order to support arguments in favor of human rights. Human rights has also been selected as an example to demonstrate how Montazeri articulated from within the episteme of the seminary a persuasive argument in support of modern concepts.

5. The Founder of Human Rights Jurisprudence

Throughout the lifetime of the Islamic Republic, human rights organizations have repeatedly criticized the human rights situation under Iran’s Shīʿī clerics. There are ample statistics and evidence of discrimination, prosecution, and executions that call into question the claims of the ruling clergy that the reports are produced for political reasons. A significant proportion of these reports detail human rights abuses by the Iranian government. Perhaps the most serious evidence of human rights violations in Iran is government law, which institutionalizes persecution in the country’s legal, judicial, and political systems. The roots and justification of this discriminatory structure can be traced to a key feature of Shīʿī jurisprudence according to which human beings are classified based on their beliefs. The main factors differentiating between individuals are gender, religious belief, and the level of a person’s religious knowledge and piety (Kadivar 2015, p. 225). In Shīʿī jurisprudence, there are significant dissimilarities between men and women. Shīʿī jurisprudence also enshrines substantial differences between Muslims and non-Muslims, and even between Shīʿas and Sunnīs. The laws for non-Muslims include a subsidiary mechanism of discrimination; the jurisprudential rules that apply to the People of the Book are different from those applied to individuals with other or no religious beliefs. The situation of a person who changes his or her religious beliefs and abandons Islam is a controversial issue, but generally jurists19 believe that shedding the blood of such a person is permissible.

Therefore, the root of human rights issues in the Islamic Republic of Iran lies in the way Shīʿī jurisprudence views human beings. In Shīʿī jurisprudence, a human’s rights are not separate from his or her beliefs. However, Montazeri’s thought separated a human’s rights from his or her beliefs, considering human beings bestowed with inherent dignity and rights purely due to their humanity. Needless to say, this statement is not new, neither in the world nor in the Shīʿī–Iranian context. From an extra-religious point of view, one might even criticize Montazeri for his long delay in expressing this simple and self-evident point. Yet it must be taken into account that Montazeri lived and thought in a traditional context that has a history of more than a thousand years. The novelty and boldness of Montazeri’s work, and the value and importance of his conceptualization of human rights, was that he located all his arguments in defense of the dignity and innate rights of humanity within the episteme of the seminary, using the accepted methods of jurisprudential research.

In addition to the Shīʿī sacred texts (the Qurʾān and ḥadīths),20 the seminary’s episteme is dominated by the opinions and writings of precedent Shīʿī scholars, and it can even be said that their writings play a more important and decisive role than the Qurʾān and ḥadīths. Of course, one could argue that the writings of the renowned scholars are also based on the Qurʾān and ḥadīths, and therefore their more prominent role in the episteme of the seminary does not negate the preeminence of the Qurʾān and ḥadīths. This is true, but the problem is that the jurisprudential approach taken by the forefathers of Shīʿism to understanding and interpreting the verses of the Qurʾān and the ḥadīths is still dominant. Referring to the opinions of one’s predecessors is a dominant tradition in the seminary, and casting aside all the literature that has been produced over more than a millennium and referring directly to the Qurʾān and sunna is almost impossible. As mentioned, the views of the renowned Shīʿī jurists are based on human inequality and human rights were irrelevant to them. Throughout the seminary’s several-hundred-year history, no jurist produced a book or pamphlet under the title of human rights. Montazeri was the first Shīʿī jurist to write a book with “human rights” in the title, thus he can be considered the founder of human rights jurisprudence in the episteme of the Shīʿī seminary. Montazeri himself criticized seminary scholars’ submission to their predecessors, writing that:

In the scholarly dimension, one of our most important mistakes was we did not pay attention to the human essence of human rights in our jurisprudential research, and we followed the tradition of our righteous predecessors, and considered some of the discussions about dignity and innate human rights as Western imports, while many of these issues are derived from the sharīʿa, some are emphasized in the [Qurʾānic] verses and ḥadīths, some others need to be carefully researched and studied.

(Montazeri 2009, pp. 164–65)

Referring to many Qurʾānic verses and ḥadīths that speak of human honor and dignity, Montazeri argues that in these sacred texts, the word human is used and not the word believer, Muslim, woman, man, or jurist. Referring to the verse, “Verily we have honored the Children of Adam”,21 Montazeri emphasizes that “human beings are honorable in essence, even if one is a disbeliever, because the essence of human beings is respected by God” (Montazeri quoted in Baghi 2014, p. 160). Montazeri does not consider these rights subject to the conditions of any specific time or place:

The fundamental rights of humans are not the product of a particular necessity or requirement of time and place; because such rights—such as the right to self-determination, the right to life, the right to a livelihood and a healthy life, the right to freedom of thought and expression, and the right to personal and social security—are first and foremost innate rights and therefore fixed, inalienable and inherent to human beings …. These rights are not rooted in legislation or the will of the government; rather, they have innate roots and are considered as axioms of practical reason.

(Montazeri 2015, p. 17)

Verse 13 of chapter 49 of the Qurʾān states, “The noblest of you before Allah is the most righteous of you.” Separating the value of dignity from intrinsic dignity, Montazeri argues that this verse is related to value of dignity, which has no effect on human social rights, and that “all human beings, regardless of their level of faith and piety, enjoy such [social] rights” (Montazeri 2015, p. 39). Like Sunnī Wasatiyyah thinkers, Montazeri also emphasizes the need to consider the maqāsīd al-sharīʿa (higher objectives of Islamic law). In his view, when a sharīʿa ruling comes into conflict with a ruling of theoretical or practical reason ”it becomes clear that the true aim and perspective of the sharīʿa is something different from the apparent content [of the sharīʿa ruling], or that the content was limited to a specific time and place that had other requirements.” (Montazeri 2015, p. 23). Montazeri also analyzes many narrations in which the Prophet and infallible Shīʿī Imāms forbade their followers from insulting or deriding Muslims and non-Muslims. He concludes that if insult and desecration are prohibited, then naturally the more fundamental rights of non-Muslims, such as the right to life and the right to a different opinion, are bestowed with even greater respect.

Many Muslim thinkers have been criticized for having apologetic approaches (Shavit 2017; Hughes 2015; Daneshgar 2020, pp. 15–65). In relation to the issue of human rights, the apologetic approach is even more pronounced since most discussions have focused solely on controversial issues such as the ruling on apostasy, the implementation of sharīʿa punishments, or women’s rights. Many Muslim thinkers have not been involved in human rights issues beyond these controversial issues; in contrast, Montazeri’s engagement in human rights issues was expansive to the extent that he broadened the discussion of human rights to encompass social rights too. In religious sources, for example, Montazeri identified strong legal foundations for the right to a retirement pension, the right to education, the right to employment, and the right to housing. Not only did he address these issues in detail in his Treatise on Rights, but he also discussed various aspects of human rights in most of his writings, as well as in his fatwas and classes. Montazeri systematically classifies rights in five categories: (1) God’s rights over humanity; (2) a human’s rights over him or herself; (3) reciprocal rights of human beings in relation to each other; (4) the rights of nations in relation to each other; and (5) the rights of and between humanity, nature, and animals. The important point in Montazeri’s arguments is that in relation to each of his numerous examples of rights, he refers to evidence from Qurʾānic verses and ḥadīths, and the early history of Islam, especially the words and deeds of the Prophet and Imām ʿAlī, the first Shīʿī Imām. For example, in relation to the right to a retirement pension, he refers to a story from the rule of Imām ʿAlī, writing: “His Excellence came across an old Christian man who was begging among the people, and asked about his situation. The companions said: That man is a Christian! His Excellence said: When he was young and able, you worked for him, and now that he is old and helpless, you have abandoned him in this state? And he ordered that the man be provided for from the treasury” (Montazeri 2015, p. 67). In relation to the requirement to meet the needs of the deprived and orphans, the right to work and choice of housing, and the rights of the sick and elderly, Montazeri uses similar sources, and considers the realization and observance of such rights a religious duty.

In relation to political matters, Montazeri also used religious sources to promote a democratic system. This issue is beyond the scope of this article,22 but it is worth noting that he also used human rights issues to promote elements of democratic polity. This part of his argument addresses human rights issues in detail, especially that which appears in his book Jurisprudential Foundations of the Islamic Government (Montazeri 1988). Referring to the rule of “enjoining good and forbidding evil”, Montazeri argues that this directive is not limited to personal issues and “is also highly obligatory in relation to the social structures of religion and morality.” He also argues that enjoining good and forbidding evil, in addition to being obligatory, is also a “universal right.” He continues that the necessary conditions and facilities must be provided for the carrying out of this important religious duty. In the political arena, the conditions for enjoining good and forbidding evil are realized when citizens can gather together in the form of parties and communities, and through these political organizations, make comments about and strive to reform or change the affairs and programs of the political system. In other words, according to Montazeri, the complete and correct realization of the rule of enjoining good and forbidding evil requires freedom of expression and freedom of association (Montazeri 2000b, pp. 1031–34).

Further examples of political arguments in Montazeri’s discussion of human rights are the issues of temporary detention and political prisoners. Referring to a ḥadīth from Imām Ṣādiq, the sixth Imām,23 he states that according to the Islamic sources and sunna, temporary detention is permitted only in the case of a murder charge, and even in that case can occur only for a very limited period of time (Montazeri 2015, pp. 103–4). Montazeri also cites numerous narrations to demonstrate that torture for the purpose of obtaining a confession is not permitted by sharīʿa, and that any trial based on such a confession would be invalid (Montazeri 2003, pp. 418–20).

As for political prisoners, Montazeri believes on principle that there should be no political prisoners. Montazeri refers to the manner in which the Prophet and Imām ʿAlī dealt with their opponents and writes that until such a time as an opposition figure took up arms against the Prophet or Imām ʿAlī, no action was taken against them. For this reason, Montazeri writes that in the time of the Prophet and Imām ʿAlī, “there was not even a single case of a political prisoner being arrested and tried for expressing an opinion and criticizing the government” (Montazeri 2006b, p. 131). Therefore, from an Islamic perspective, the detention and trial of individuals on political charges is against sharīʿa law.

Montazeri also addressed the issue of freedom of religion and apostasy in detail. In general, he is opposed to the death penalty for a person who has abandoned Islam. Montazeri gives various reasons and cites multiple religious sources in reaching this view, including the fact that the Qurʾān does not prescribe the death penalty for apostates (Akbar 2021b, p. 9). Referring to the verse, “There is no compulsion in religion,”24 he emphasizes that religion cannot be a matter of force. Montazeri does not deny the existence of ḥadīths that prescribe the death sentence for an apostate, nor does he fail to acknowledge that there were cases where apostates were executed in the early days of Islam. However, he draws upon intra-religious arguments to reject the death sentence for a person who converts from Islam. Montazeri argues that “choosing a religion or belief, or changing it, is not apostasy” (Montazeri 2008, p. 130) and that the ruling on apostasy is relevant to a person who “intends to conspire against the Islamic community” (Montazeri 2006a, p. 694). To clarify this discussion, Montazeri presents a definition of faith and disbelief: “Achieving certainty and belief in something is not a human choice; while faith and disbelief are two voluntary actions … Faith means a practical and moral commitment to a belief that is found in the heart, and disbelief means the denial and non-adherence to that [belief]” (Montazeri 2006c, pp. 526–27). Montazeri continues that an apostate is a person who, despite their certainty in the legitimacy of Islam, “denies it out of stubbornness or bigotry, or for political, economic, or other [comparable] motives” (Montazeri 2006c, p. 527). He concludes that it is very difficult to prove apostasy, because it cannot be said with certainty that a person who outwardly denies Islam really believes in its legitimacy in their heart, and denies Islam out of stubbornness or due to other motives. Montazeri sees the use of the death penalty for apostasy in the early days of Islam not as a punishment for a change of belief, but for an intention to make an attack on Islam. In his opinion, at the time when the Muslim population was very small, converting to Islam and subsequently abandoning the religion was one of the enemies’ strategies designed to damage the morale of Muslims. Therefore, in order to prevent this political tactic by his enemies, the Prophet announced that the death sentence would apply to those who left Islam. Montazeri argues that because the core of the issue has now been eliminated, and the Muslim community is so vast that one person leaving the faith cannot harm the religion, no punishment can be imposed for it (Montazeri 2006a, pp. 692–95).

Montazeri’s ideas about the abovementioned issues are very close to today’s human rights standards, but in relation to other human rights issues, Montazeri’s views can be subject to serious criticism. Overall, Montazeri had progressive views on women’s rights and issued several progressive fatwas in this regard. Part of his judicial reasoning included relating of the conditions of time and place to sharīʿa rulings related to women. For example, the hadith of Imam ʿAlī advises, “Do not consult women because their view is weak and their determination is unstable” (Imām ʿAlī b. Abī Tālib and Al-Jibouri [1009] 2009, p. 758). However, Montazeri responds that “the words of His Excellence do not impart a general rule or principle towards all women in all times and all circumstances” (Montazeri 2019, p. 458). According to Montazeri’s reading, this narrative is relevant to a time and society in which women were not permitted to develop intellectually. Montazeri continues that “it has been seen and heard on multiple occasions that some women had, and have, greater reason and intellect than some men” (Montazeri 2019, p. 459). In relation to the possibility of female marājaʿ-i taqlid, Montazeri held that the key requisite of a person referred to for religious guidance is scholarly expertise, and that being a man or a woman is irrelevant to knowledge and scholarly expertise. He concluded as a result that there is no particular reason to prevent people from submitting to a female marjaʿ-i taqlīd for religious direction (Montazeri 2019, p. 467). Montazeri also refers to several verses from the Qurʾān indicating that men and women share the same status, and that the only feature granting superiority to a person is greater piety. Nonetheless, as Katie Manbachi (Manbachi 2013, p. 92) argues, many of Montazeri’s views on key aspects of women’s rights were in parallel with other prominent judicial opinions. Montazeri, for example, explicitly opposed women taking on judicial and political leadership roles. He claimed that judgeship and leadership are difficult tasks not commensurate with the physical and mental characteristics of women. He considered this religious ruling not as diminishing the status of women but recognizing their duties in proportion to their physical and mental capacities. He stated that this ruling “can be considered in fact compassionate towards and supportive of them [women]” (Montazeri 2019, p. 468). Montazeri does not address the question of whether a woman who does not desire such compassion can indeed become a judge or a political leader, or the possibility of there being women endowed with greater physical and mental strength than many men. Regarding inheritance, Montazeri defends the classical jurisprudential rule that a woman inherits half of that of a man. In defense of this view, Montazeri argues that throughout history, men’s financial responsibilities have been greater than women’s and it is for this reason that these rulings have been issued (Montazeri 2008, p. 128). Consideration of the conditions of time and place, and the more fluid financial roles of men and women in the modern world, could also be applied and effect change to these rulings. However, Montazeri did not begin to contemplate such considerations and revisions until the very end of his life.25

Although Montazeri’s views on the rights of minorities are considered progressive within the seminary’s episteme, they are far from the standards accepted today. In general, Montazeri argues that minorities are equal to the majority “in human rights, including public, civil, criminal, and commercial rights” (Montazeri 2008, p. 118), but in relation to senior government posts, he seeks to justify a verse from the Qurʾān prohibiting the domination of Muslims by non-Muslims.26 In Montazeri’s view, in a Muslim-majority society, the minority will never gain the support of the majority to occupy a senior political post. He does not consider, for example, the jurisprudential position that should be taken if the majority voted for a non-Muslim in the presidential election. As Manbachi puts it, it seems that “Montazeri could not imagine a society where the rights of the minority were considered over the majority” (Manbachi 2013, p. 105).

At the same time, the claim that Montazeri addresses a wide range of human rights issues should not be taken to mean that he addressed all human rights issues. He avoided engagement in some controversial issues, such as the rights of homosexuals. It is difficult to imagine that he did not think about this matter at all. Perhaps he knew that there was no way to provide a moderate reading on the subject of homosexuals within the seminary episteme, and that defending these humans’ rights required a complete departure from the religious context. Of course, a more robust speculation could be that Montazeri had a set of strong religious beliefs that did not necessarily conform to accepted human rights norms. This article does not argue that Montazeri’s ideas were fully aligned with human rights standards or other modern concepts such as democracy and pluralism. Rather, its central claim is that Montazeri made fundamental changes to the seminary episteme from within, forging a path that is being continued and expanded by his students today. It is not unreasonable to claim that due to Montazeri’s efforts, moderate readings of religion in relation to several issues have already become part of the Shīʿī seminary episteme. Individuals such as Mohsen Kadivar, Ahmad Qabel, Mohammad Soroush Mahallati, Ayatollah Assadollah Bayat Zanjani (Ridgeon 2020, 2021; Jahanbakhsh 2020), as well as numerous others, present moderate readings of religion in relation to a range of matters.

In sum, Montazeri was not only important in terms of his statements and ideas. His position in the seminary, as well as the context in which he conceptualized his progressive ideas, was even more significant. It can be said that compared to other Shīʿī Wasatiyyah thinkers such as Abdul Karim Soroush, Mohsen Kadivar, and Mohammad Mojtahed Shabestari, Montazeri’s views were not particularly progressive, but as a marjaʿ-i taqlīd, Montazeri enjoyed religious authority and could build relationships with the community of habitual believers. Other Wasatiyyah thinkers cannot easily approach this class. In addition to his access to the class of ordinary believers, Montazeri established a new kind of thinking within the seminary’s episteme. Without the help of modern or Western philosophies, and solely within the accepted frameworks of the Shīʿī seminary, he made it possible to reconcile religiosity with modern ideas.

6. Conclusions

The theological foundations of political Islam, which emerged in the Shīʿī and Sunnī worlds in the second half of the twentieth century, are fundamentally different. Khomeini’s doctrine of wilāyat-i faqīh, for example, has very little in common with the politico-religious theories developed in the Sunnī world by Sayyid Qutb and Abū al-Aʿlā al-Mawdūdī. However, both branches of political Islam emerged in response to common concerns, and both expressed a this-worldly interpretation of religion. Further, both groups of ideologues claimed that religious sources could offer Muslims a better life. Therefore, returning to religious teachings comprised key elements of both discourses. As the imaginings of and depictions presented by these movements’ leaders created a utopia in opposition to the ideologies of modern Western civilization, they rejected the key elements of political thought in the modern world, such as secularism, human rights, freedom, democracy, and pluralism.

A further common denominator between the Sunnī and Shīʿī political movements was that the lived experience of each discourse led to backlashes, the most important of which was the Wasatiyya school of thought. The Wasatiyya school offers an alternative reading to political Islam which stands for the possibility of reconciling religious teachings with modern concepts such as human rights and democracy. In this article, Ayatollah Montazeri’s life and thought, particularly his ideas about human rights, were analyzed as an example illustrating the Wasatiyya school of thought in the Shīʿī world, and it was shown that Montazeri promoted human rights within the framework of the seminary’s own episteme. By challenging governmental Shīʿism’s radical reading of religion, he sought to show that religious teachings are consistent with modern and humane ideas. This article demonstrated that Montazeri was a pioneering marājaʿ-i taqlīd of the Wasatiyya school of thought in the Shīʿī seminary, and forged a path that is being followed and reinforced by others today. Separate research is necessary to examine the extent to which Wasatiyya thinking has developed within the Shīʿī seminary.