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No Facade Constitution: Constitutional Law and Political Change in post-1979 Iran
Abstract
Few remember today that the velayat-e faqih (guardianship of the jurist), the core concept on which the Islamic Republic of Iran is based, was not part of the first constitutional draft in 1979 that had good chances of being adopted. While Khomeini proposed the adoption of the draft, it was the calls for a more inclusive process by liberal constitutionalists that ultimately lead to the establishment of a Constitutional Assembly through which the Shiite clergy was able to write clerical privileges into the final constitutional draft. The Iranian case is thus a thought-provoking example of how constitutional process and outcome can be inversely related: More inclusive processes need not translate into more egalitarian constitutions. Many regarded the ultimate result a contradiction in terms: theocratic constitutionalism (Hirschl) – a constitution that empowers rather than limits executive authority and moreover bases executive power on Islamic rather than civil law. Yet, how has the constitution held up in the past 35 years? Is it right to speak of a “constitution without constitutionalism” (Jacobsohn)? And given the role the new Egyptian constitution accords to Al-Azhar as providing religious interpretation which cannot be ignored in the legislative process, must we expect a similar dynamic as in Iran where the clerical Guardian Council may stifle majoritarian decisions in the legislature? The paper traces constitutional development in the Islamic Republic of Iran since the 1979 revolution in light of Tom Ginsberg’s (2013) typology of constitutional functions (operating manual, blueprint, billboard, and window dressing). While violations of the constitution and the rule of law more generally are almost daily occurrences in the Islamic Republic, the paper argues that the Iranian constitution is anything but a façade constitution. Indeed, what surprises the observer of Iranian post-revolutionary politics is how little the constitution is needed to window-dress and how often, by contrast, it is invoked by regime opponents and defendants alike, as either an operating manual, blueprint, or billboard. The challenges to theocratic hegemony occur precisely in the areas for contestation that the constitution provides: elections, parliament and at times, a vigilant press. The history of constitutionalism in the Islamic Republic shows also, however, that it is nothing less than Rawlsian grand compromises between these institutions that are needed to fight hegemonic preservation back. Such compromises are even harder to achieve in normal politics than in constitutional moments.
Discipline
Political Science
Geographic Area
Iran
Sub Area
Comparative