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Review: [untitled] Author(s): Said Amir Arjomand Reviewed work(s): The Renewal of Islamic Law.

Muhammad Baqer as-Sadr, Najaf and the Shiʿi International by Chibli Mallat Source: Islamic Law and Society, Vol. 2, No. 3, Marriage, Divorce and Succession in the Muslim Family (1995), pp. 348-353 Published by: BRILL Stable URL: Accessed: 26/12/2009 19:47
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pp. and the Shi'i International (Cambridge:CambridgeUniversity Press.Dr. in appropriating the judiciary the power to rule on the conof laws.which had been advocated by feminist groups. Ziadeh Universityof Washington MALLAT.It was unnecessaryfor the authorto cite as possible forerunners of the Majlis al-Dawla either the mazalim courts or attempts by Khedive Isma'il to establish the Government Consultative Council. Politically. ? 30. Mallatoffers us a pictureof the revivalisttrendin . MuhamntadBaqer as-Sadr. in being a part of the to judiciary. Chibli. Najaf 1993). The court nevertheless found that Sadat had no power to issue such a decree while Parliament was not in session because therewas no emergencythat would have empoweredhim to do so (on this law." In this magnificentchapterhe delineatesthe role of that courtin maintainingthe rule of law in Egypt. except for the Tagammu'party.348 BOOK REVIEWS differs from its prototype. The transition from fiqh to positive law was effected by the personalstatus legislation of the 1920's and thereafter. and thereforevoid. in giving advisory opinions to the Executive. However. This book contains some rich fare for both the specialist and the general reader. see IslamicLaw and Society. Chief Justice 'Awad el-Morr writes about "The Supreme Constitutional Courtof Egypt and the Protection of Human and Political Rights. the co-winner of the Middle East Studies Association's 1994 Albert HouraniAward. he shows how the court intervened to uphold the Constitution. in view of the 1979 constitutionalamendmentdeclaring the sharira to be the principalsource of legislation. vol. had improved the status of women and given them more rights in cases of divorce and custody. although one wishes that he had devoted additional effort to correcting quaint grammar. Egyptians are unsure about how to proceed on this issue. which remained loyal to the social and secularpositions of the Nasseriteera. of Finally.00.The editoris to be congratulated his efforts in bringingthe project for to fruition. the various parties and alliancesin the 1987 elections voiced some supportfor the applicationof the sharl'a. xii + 245. The Renewal of Islamic Law. the one which raised an uproarin Egypt was the 1985 decision which declared the decree-law issued in 1979 by President Sadat to be unconstitutional. 1:1. and typing mistakes that work. occasionally marthis important FarhatJ. 116-36). pp. Citingapproximately fifteen cases pertainingto political and civil rights and to propertyrights.Althougheach of those decisions is worthy of men tion.incorrectword usage. in "Contemporary Reinterpretations Islamic Law: The Case of Egypt.the French Conseil d'Etat." BernardBotiveau presents importantinsights about the call for the applicationof sharra and what is meant by it. ISBN 0 521 43319 3. and stitutionality particularly in reviewing draft laws to be submitted by the Executive to Parliament. In this book. because the underlying philosophy of these two bodies was different from that of the Majlis al-Dawla and had no effect on its formation. That decree-law.

MuhammadBaqer al-Sadr. was written in 1959 in reaction to the growing appeal of Communismamong disenfranchisedIraqi Shi'a. is not all of Islamic law. Whereas Islamic historiographicand other intellectualtraditions have been largelyirrelevant the contemporary to revival. for instance on social security. This approachenables Sadr to include a good deal of derivative materials. Although Sadr proposesan interestingLockean-likejustificationof privatepropertyas the fruitof labor. while replacingthe forbiddencategoryof ribdwith modified uses of the permissible principleof muddraba(p. and his modernized Islamic system unsuspectedlywas conditionedby its antithesis. . law is its centralcomponent. No longer is family law the last precinctof the jurists. Islamic law has regainedthe high groundin disciplines which had seemed only a few decades ago beyond the pale: constitution. Sadr's first major work.economics and banking"(p. The main stimulus to the renewal movement in Shi'ism came from the "bitterintellectual confrontationbetween traditionalNajaf and the Communists" ( his writingson Islamic interest-free banking. and was accordingly"obsessedwith Marxistcategories"(p. expoundedin Iqtisadund. land law .Sadr took on Marxism as the most seductive rival ideological system." of thejurist (authoritative of holding this position as "the supremerepresentative the Islamic ideology" (cited on p.This is clear in Sadr'seconomics. it he argues. 184). In Sadr's political theory.Furthermore. break with his early writing by placing a specifically Shi'i institutionat the . In his endeavor to modernizethe Islamic legal tradition. but only two previously underdeveloped areas within it which have become the core of this revival:"the constitutionalpartof public law. and banking"(p..and a sharpdistinctionbetweenworked land and dead land. 4). "a watershedhas occurredin the intellectualrealm of the shari'a. and the large field opened up by moder economics: labor law. position in his economics. the unsuspected conditioning by the Marxist of antithesisis notable in his characterization the traditionalShi'i marja'iyya and sourceof imitation)as "ideologicalleadership.REVIEWS BOOK 349 contemporaryShi'ism throughcareful examinationof the life and works of one of its key figures. This renewal of Islamic law took place in Najaf in the 1960s and 1970s as the centralelement in a broaderand deeperwave that is termed As the "Shi'iinternational. of Sadr's novel characterization the marja'iyya also marks a Furthermore. Falsafatund. while of requiringthe introduction novel categoriesand a few neologisms. 12). 189). publicownershiptends to occupy the predominant and with it goes a dirigiste attitudetowardexploitation of naturalresources and implementationof large-scale economic projects for the benefit of the entire society. .Sadr displays a clearly dirigiste attitude toward state control of banking.where he seeks the principles of the Islamic economic system in point-by-pointcontrast to capitalism and socialism conceived as systems. He thus swallowed the Marxist esprit de systeme and the Marxist notion of ideology. 9). 66)." a consequence. Similarly. Sadr's fascination with ideology was sharedby the lay and clerical advocates of Islamic renewal in Iran and found embodiment in the ideological preamble to the Constitution of the Islamic Republic of Iran.who was executed by the Iraqigovernmentin April 1980.

This original conceptual bundle was taken over by Ayatollah Dr.writtena week before the final collapse of the monarchy. we are left to guess whetherthe wall al-amr is the ruler(sultdn) of the medieval jurists. This bringsus to the core of this study. however. a formulation that was more precise than the vague statementput forwardby Khomeini a decade ealier. The search for the principles of this Islamic politicalsystem promptedSadr to embarkon an endeavor to develop Islamic constitutional law toward the end of his life. an endeavor that assumedhistoricalsignificancewith the Islamicrevolutionin Iran.and is the authorof the articlesthat introduced wildyatal-faqlh into the Constitutionof the Islamic Republic. in a novel division of the rules of the sharra into four categories. Sadr deftly avoids the thornydiscussion of the referrentof the term wall al-amr (the person invested with authority).350 REVIEWS BOOK center of the Islamic political system.The proceedings of the Assembly. The question of influenceis not easy to settle and requirescloser attention to the political process of constitution-makingthan is possible within the frameworkof the presentstudy.or Khomeini'stheocratic faqlh. 119).which covers the conduct of the wall al-amr accordingto the principlesof al-wildya al-'cmma (general mandate)(p. The authoris correctin stressingthat Sadr'sidea thatthe supremejurist should be the commander-in-chiefof the armed forces was carried over to the Iranianconstitution. thoughetymologically unrelated. the Iranian Majlis has nothing to do with Sadr's . 14). On the other hand. a term that easily could be pairedwith the similar. the question of directinfluence over specific articles of the constitutionremainsopen. in fact presided over the Assembly of the Expertswith a heavy hand. as vice-president. 70-71).Sadr had conceived of a discretionaryarea subject to the (legislative) authorityof the ruler. In Iqtisadund. and the supremejurist as marja' in place of the ruler (wall al-amr) of his earlierwritings (pp. In a note proposinga constitution for an Islamic republicin Iran. ila'l-amr to invoke Qur'anicsanctionfor its legitimacy. thus offering a legal formulationof the wildyatal-faqlh as the mandateof the jurist to rule. Muhammad Husayni Beheshti who.he put the generalvicegerency (al-niydbaal-'tmma) that pertains to the supremejurist(al-mujtahidal-mutlaq)in place of the wildya al-'dmma as the mandate to rule. I think the fundamentalcontributionof Sadr may have been the conflation of the traditionalniydba 'dmma (generalvicegerency) of the jurist with the novel category of wildya 'dmma (general mandate)to designate the authorityof the wall al-amr as the shar'i ruler.stating that Islam allowed the wali alamr (an undefined term Mallat reasonablytranslatesas "the ruler")to exercise ijtihddaccordingto the needs and interestsof society (p. which was drawn up by the overwhelmingly clerical Assembly of Constitutional Expertsbetweenmid-Augustand mid-Novemberof thatyear. Beyond this. It is Mallat's contention that Sadr's 1979 constitutional writings were the majorsource of the Constitutionof the Islamic Republic of Iran. Sadr offered as the last of these the category of rules pertainingto public conduct. an analysis of Sadr's writings on public law and their impact on the constitutionallaw of the Islamic Republic of Iran. In 1976. indicate that this provision was the one thatmet with the most determined oppositionin the Assembly. which he does not appearto have used.

the best Islamic orators(khutabh). largely incorporatedinto the draftconstitutionsubmittedby Bazarganto the Assembly of Experts. thanwe realize.of the earlierconstitution the draftsubmittedby Bazargan's government. representsan amalgamationof two distinct bodies proposedby Sadr: a with "theprincipleof constitutional majlisahl al-hall wa'l-'aqd. to conform to "Islamic standards" determined the religiousjurists of the Council of Guardians. pp. 70)."Mallat is persuasive in arguing that the inordinate .. 150-58 at 151-52) is rather that Beheshti's idea of an elected assembly of experts (khubregdn).or partthereof. and it was covered by the familiararticlesof the Constitutionof 1906-07.which was implemented both insteadof the originallypromisedconstituentassembly and as the permanentAssembly of Expertsin charge of the issue of Leadership. Ayatollah Beheshti turnedthe tables in a very significant manner that is missed in Mallat's account. the cabinetand the Revolutionary Council.. 6 [1992]. authors and thinkers. as by could This seems to imply thatthe clericaljuristsof the Council of Guardians suspendthe constitution.REVIEWS BOOK 351 influence. poweris even moreflabbergasting requires all laws. The baffling power the author attributesto the Council of Guardians as a whole belongs only to its clerical members. of the best 'ulam' . 75). My own surmise ("Constitution of the Islamic Republic. consisting of "one hundred .. The Majlis was too firmly established an institution. at which time it was altered to the Islamic Consultative Assembly. 72).especially its provisions for a Conseil This was due to the French-educated membersof Bazargan's Constitutionel. and six additional Muslim lay lawyers (huquqddndn) whose jurisdictionwas restrictedto the determinationof the conformity of laws with the constitution. Mallat correctly perceives the influence of the French whose draftconstitution Council of Guardians(shard-ye negahbdn) was a court for constitutionalreview of legislation that was to consist of six lay jurists and five mujtahids(the same numberas had been provided for by a dead letter of the old constitution). (The LeadershipCouncil for which Mallattakes Sadr's proposalas the source was basically a default provision. Similarly. but is a simple conjunction juristas] the deputyof the Imam"(cited on p. including the constitution itself.. allowing a council of three or five marja's to carryout the functionof Leadershipin case a single jurist could not be agreed of upon. if they find that it does not conform to "Islamic standards.even its name was retaineduntil the First Majlis was convened..both in via wordingand in was eliminatedin the amendedconstitution 1989.. the retention of the principle of "national milll) in a severely restrictedform clearly does not (hdkimiyyat-e sovereignty" derive from Sadr's statement that "legislative and executive powers are exercisedby the umma"(cited on p. [to] includenot less thanten mujtahids" (cited on p. supervisionof [the supreme of and a council to carryout the authority marja'iyya."EncyclopaediaIranica. The Council was to have six clerical jurists (fuqahd') who had automatic veto power over all Majlis legislation not conforming to Islam. Article4 this Furthermore.) Influencesother than Sadr's constitutionalideas were also at work in the making of the Iranianconstitution of 1979. It was very much the National Consultative Assembly (majlis-e shurd-yemilli) of the old constitution.

" to their traditional.whose bases are identified as the institutions of pilgrimage and marja'iyya. MuhammadJavad Mughniya. the ones who could notably afford it proudly preferring the modern. producinga considerable jurisprudence. and duly notes that the prolonged crisis was resolved only with Khomeini's reluctant interventionin the last years of his life.and alludesto some of the contradictions the in discussions of the so-called primaryand secondaryinjunctionsof the sharla that have resulted from this extension. two of the most important lay ideologues of the Islamic revolutionin Iran.however. the power of the Council of Guardians has not been significantlycurtailed. Like Sadr. which is his objective.In the long run. It is true that the immediateresult of Khomeini's interventionwas the passage of a number of laws that had been vetoed by the Council of Guardians. Sayyid MuhammadBahr al-'Ulum. which would put Qum alongside Najaf on the map of the contemporaryShi'i revival. The notionof civil society is suggestive of the links between the 'ulamf' and the mercantileand bazaariclasses in Iraqand Iran. Muntaziridrew on the works of Sunni as well as Shi'i jurists and embarkedon an ex postfacto . His argument. which can arbitrate in cases of betweenthe Majlis and the Council of Guradians. Mahmud al-Hashimi and Muhammad Baqer al-Hakim in Iraq and Lebanon are But properlymentioned. and consistentlyunderplaysthe contradictory aspects of the old and the new notions of authority. MuhammadMahdi Shams al-Din. Nevertheless. the Iranianof the same generation. This makes Mallat's premature pronouncementof the "demise" of the Council of Guardians all the more puzzling. Mallat's approach is appropriatefor the writing of intellectual history. also received a secular education. and Yet their also lopsided. MuhammadBaqer as-Sadr's sister.It is also worthnoting thatthe amendedconstitution of 1989 eliminatesall referencesto marja'iyya. More pertinentto the intellectual developments under discussion is the interaction of the lay and clerical intelligentsiaas the educatedelite of civil society. however.the other SadrImam Musa. Abu'l-HasanBani-Sadrand Hasan Ayat. MuhammadHusayn Fadlallah.which is correctlypresentedas the cornerstone Sadr'sconstitutional of construction. is at times hazy.were sons of clerics-the latterwith some formalreligious most education. The presentationof the Shi'i international.his persistentuse of the undefinedterms "Shi'i civil society" and "Shi'i international" begs for sociological amplification. The author points to some of the difficulties of the extension of the traditional into the realmof politicsand constitutional institution marja'iyya of law underthe rubricof wildya. Bint al-Huda (who was executed with him). clerical titles. and Ayatollahs Muntaziri.yet little is said about the natureand consequences of these links. the body set up by Khomeiniand made a permanentorgan of the Islamic Republic by the constitutional amendments of 1989.352 REVIEWS BOOK power of the Council of Guardians set it on a collision course with the revolutionary Majlis and produced a major constitutional crisis.while quite a few of the Iranianclerical constitution-makers.Its six clericaljuristshave been members of the new and clerically-dominatedmajma'-etashkhis-emaslahat. are worth noting. Beheshti.The Council disagreement has continuedto operatewith vigor. secular "Dr.Mutahhari Beheshti are left out.

xii. Said Amir Arjomand State Universityof New York at Stony Brook and historyin MESSICK.hadith. map. Brinkley. administrative historicalforms of writing as manuscript to print during the century following the (re)establishment of gave way Ottomanrule in North Yemen in the 1870s. down to the most ephemeralof everydaylegal documents. an ethnography of the learned tradition in a time and place (the town of Ibbin Yemen in the early 1970s). This methothe type attempted dological principle.the Qur'anitself. the controlof productiveresources"(p. 1993). In otherwords.which figures in state legitimacy. 6). Comparative Studies on Muslim Societies. the shari'a formed the core of the learned tradition. Berkeley.and as the authoreventuallynotes: "While necessarily concernedto invoke and address family resemblancesfound in other places and times. or as Messick puts it. relations of social and hierarchy. of documentaryinscription. incidentally. 254). the communicationof culturalcapital.surely deserved formal recognition from the outset. which is at one and the same time an anthropologyof the pan-Islamic core of the fiqh tradition (Qur'an. and shar').the projectof TheCalligraphicState is an ambitiousone. are These minorstrictures not intendedto detractfrom the overall value of Mallat's rich study which fully deserves the recognition awarded it by the MiddleEast StudiesAssociation. As its title reveals.TheCalligraphicState: Textualdomination a Muslim society. index. That the tradition underdiscussion is so exclusively that of fiqh. 16 (University of CaliforniaPress. This parallel in intellectual careers. the project is no less than an anthropologyof the discursive orderof texts in "a Muslimsociety"-from primaryauthority. vol. in both the Zaidi North or. a discursive history of heremustalso be resolutelyspecific" (p. reflects thatvery specificity:in Yemen. modes methodof instructional transmission. involving structures of authorship. and a particular and historyof legal. a and institutionsof interpretation. Othergenres. makes the question of the precise influence of Sadr on the constitutionshapeddecisivelyby Beheshtimore difficultto assess.. Shafi'i Lower Yemen. Muslim society" scarcely identifies a recognizablepolity with a historyand location. as here. It aims to analyse what the author terms a "textual polity" entailing "both a conception of an authoritativetext.generallyobservedin practice in this excellent book but in expressedonly as an afterthought the very last paragraph. "a The wording of the subtitlenotwithstanding. "sharla society". Indeed. the latteralso wrote on Islamic economics and interest-freebanking around 1960. such as the artisticand scientific forms of court cultureor the . illus. 331 pp. From it derives the fertile tension (and of often complex structure) Messick's book as a whole.BOOK REVIEWS 353 searchfor the foundationsof the wilayatal-faqih in the courses he offered in Qum in the 1980s.and a patternof textual authority. The similarity between Sadr's intellectual interests and those of Beheshti are even closer..