A Review of Law and Legalism in Society according to Imam Khomeini

Imam Khomeini in adherence to the policy and approach of Imam al-Muttaqin (Imam of the Pious), Hazrat Ali (as) maintained special importance for precise practice of the laws of Islam; he was the first one to exercise law.

 

Human relationships and social order in human societies is the ground for the security, peace, comfort and growth. Social governments and institutions s well as executive powers in society are all instruments whose necessity for realization of social order in human relationships are clear to all. From ideological viewpoint, divinely religions have brought laws and regulations graced by the Creator of the world for happiness and prosperity of individual human beings. The sacred religion of Islam has clearly and vividly spoken of these duties and rights and its noble prophet (s) has acted accordingly in society and communicated them to mankind outright. In some societies, laws are made merely in relation to individuals but laws of God also heed political relations governing society. The saints of our sacred religion have always laid ample stress on fulfillment of duties, observing rights, laws, equality and parity of all classes of people before the law. Practical life of prophets (s) and immaculate Imams (as) and religious leaders testify this matter. Amir al-Mu'menin (as) in a speech during his proud five year long rule observed: "If what my daughter has taken from the Treasury as trust was without warranty, I would exercise punishment on her for committing theft for the first time in the family of Bani Hashem." In another observation, the Imam stated: "If the seven continents are given to me to take away a particle of barely from the mouth of an ant I would never do this anti-law act."

 

The great stress laid by prominent people of religion and expression f worldly and other worldly punishments in violation of law are all evidence to the fact that the sacred religion of Islam has been the religion of law and has outpaced all in all fields particularly in this respect. The history of legalism and support for law and being in keeping with law is traceable to centuries ago. In this respect, divinely religions have absolute superiority to others.

 

By reference to different texts written in this respect we understand that the source of any disorder and chaos and difference lie in violation of law and lawlessness and that the secret of unity, solidarity and integrity of any society hinges on enforcement of law and legalism. In this writing attempt has been made to examine the standing of law particularly the constitutional law in the Islamic Iran with a view to the utterances of the architect of the revolution, Imam Khomeini, the great so as to serve as beacon guiding Islamic societies and free thinkers to attain to transcendent unity of monotheistic religions.

 

Concept of the Law
Law is a set of instructions put into practice by a group of institutes and acts as intermediary in social links among people. Law is diacritic mark of the Greek word "canon" rendered as loi in France and law in English. There is a more common concept of law. In other words, whatever that regulates human behavior is called law. This law can be physical law affecting man or moral laws or a law enacted by a government or superior power of a country in a special manner and standing. (Mark Tobit, Philosophy of Law)

 

Constitutional Law
The concept of "constitutional law" is derived from French equivalent term. In time of the Constitutional Movement it was applied in its foreign literal meaning of the word in the sense of restricting the authorities of the king within specific legal framework. Today, the term constitutional law is applied in Farsi to refer to the constitution of ruling governments (like Iran or France), subset of governments (like Germany, the US or India) or super-governments (like European Union). Regarding other organizations like unions, international organizations and political parties, usually the term constitution is used.
The constitution is the supreme legal document of a country and a guide to regulate other laws. Constitution defines political principles, structure, hierarchy, standing and limit of political power of government of a country and determining and guaranteeing the rights of citizens. No law should run counter to the constitutional law. In other words, constitution determines the ruling system, a law that stipulates where the power should be concentrated, how is the relationship of this ruling power with freedoms and rights of the individual members of the nation and what authorities and responsibilities the ruling powers including the executive, legislative and judiciary have in the face of people.

Furthermore, constitution gives regard to themes such as national flag, national anthem, national emblem, capital of the country, the principles governing the economic policies, cultural programs and foreign relations of the country.

The oldest national constitution still in force has been written in 1600 PD and belongs to the republic of San Marino, South of Europe.

Prophet of Islam after immigration to the city of Yathrib (Medina) ad settlement over there, laid down a set of laws based on the religion of Islam for administration of the city in the first year of Hijra (622 Christian Calendar). These laws for the first time guaranteed the religious rights of citizens and defined specific system of justice department for war, tax and civil differences.

 

The Constitution of Iran
Constitutional law of the constitutional movement was the first constitution of Iran signed by Mozaffareddin Shah in Dey 8, 1285 (14 Zul Qa'deh 1324 lunar Hijra). The constitution had 51 articles that predominantly dealt with procedure of national consultative assembly and the senate. For this reason (there is need for a source) it was known as constitution at the beginning.
This constitution had been prepared after success of the constitutionalists in obtaining the constitutional order hastily. There was no mention of the nation's rights and other arrangements dealing with authorities of government and rights of people in it. Therefore "amendment to the constitution" was provided and passed by the Majlis and Mohammad Ali Shah signed it in 14 Mehr 1287 solar calendar (29 Shaban 1325 lunar Hijra). This constitution and its amendment was Iran's constitution up to 1347 when monarchical government in Iran was ousted. However constitution of Islamic Republic of Iran after victory of revolution in 1358 and after receiving verdict of constitutional expert selected by the nation was recognized. This constitution was revised in 1368 and in Mordad 6 was approved by majority of people of Iran in constitutional referendum of 1368.

 

Sovereignty of Law
Long period of human life has always been subject to changes in inclination towards law. In some political views rulers stood above the law in a way that Plato for instance considered philosophers above law in his Utopia or Johan Beden, not exactly, had such view in a dominant understanding. But a long period of human history rulers and law stood in one line. Law was simply something that the ruler desired (this matter is known as positive school and some philosophers consider its initiator in modern time to be Hobbes) but in the third and more modern tendency the ruler was bound by law. The first step towards distancing from dictatorship of rulers was the view of rulers by way of law consisting of the concept that ruler is lower than law and obligating him to government through legal ways. Democratic governments by creating the rule of law went beyond in this way. Although no society is without problem rule of law supports political, social and economic rights.

 

An important point here is the source of law. Law has different sources in accordance with different inclinations. For example, as pointed out, positivists hold that law is the will of ruler and nothing is superior to it. Whatever ruler desires is law and binding. However, advocates of natural law school hold that there is an inseparable right for man on account of being human being, government over all laws and the main duty of ruler is discovery of the regulations and their implementation. In contemporary age the impact of this view can be found in generation of universal human rights; that is, the least rules today's man enjoys on account of being human being. One case is that citizens be safe from willful arrest and undue inspection of one's dwelling place or confiscation of one's properties. The citizens accused of crime deserve being tried immediately and openly and are entitled to object to their plaintiff or question them. If these individuals are condemned, they are not subjected to merciless and unusual punishment for them. Citizens are forced to bear witness against themselves. This principle supports citizens against exertion of pressure, misuse or torture drastically decreases police action towards such behaviors.

Rule of law has a general and a special meaning. In the general meaning; that is, order in the country. In other words when individuals of a society behave in a corresponding way and by observing common norms, it means that law government is dominant. In narrower meaning it means implementation of positive laws subject and laws enacted by Majlis and competent officials of a country in a correct way and in line with implementation of the goal of that law. In practice, rule of law signifies that no individual is above law. Democratic governments apply power through the law and they are obliged to obey the law.
Laws should be in line with demands of people and not whims of kings, bullies, military officials, regulations leaders and self-appointed parties. People in democratic governments are eager t o follow the law, because they obey their rules and instructions. When law is laid down a people who should obey them it appears that justice is established in the best possible manner. Extent of freedom of a society can be assessed by the percentage of population under the rule of that law. For the rule of law, a powerful and independent judiciary system is required to enjoy authority, power, asset and necessary credit for questioning government officials and even senior leaders in the face of laws and instructions of the country.

Therefore, importance of separation of powers endorsed by our own constitution is delineated here. The laws of democratic government may have different sources such as written constitutional laws, approbations and rules, religious and moral teachings. Laws without considering their sources make the necessary predictions for protection of the rights and freedoms of people.

Imam's Concluding Remarks on the Constitution
Vital and pivotal role of legalism is such that in Islamic government leader considers himself to be obedient to law and one to execute it. He insists on this principle to the point that even in judicial system of Islam and in pursuance of the laws sees no difference as equality is concerned between him and all individual members of a nation and even a Jew under the protection of Islam. We observe this divinely style and approach in tenure of leadership and statesmanship of Hazrat Imam Ali ibn Abi Talib (as) trace.

Imam Khomeini in pursuance of the policy and approach of Imam al-Mutaqin Hazrat Ali (as) maintains special significance for precise practice of the laws of Islam and he was the first person who exercised the law. Victory of Islamic Revolution and in the culmination of struggle against taqot and after that in time of his ten years of proud life on top of the government considered law-abiding as one of important key elements of the sacred Islamic systems reminding all organs of the system and officials of paying serious heed to this matter, regarding all these to be for realization of Islamic right and justice.

He never trampled the laws of the country derived from the thoughts of a group of wise and cultured group. In fact, he considered evasion of law to be a forbidden and anti-Sharia practice. His daughter, Mrs. Zahra Mustafavi states in this respect has the following to say in this respect:
"Imam was greatly obliged to law and highly respected law. He counted respect for law to be a religious duty. That is to say, he considered, for example, non-observance of traffic law to be against Sharia. In his opinion, crossing of a car when the light is red or light speed beyond the limit permitted is forbidden and against Sharia." (Excerpts from the life of Imam Khomeini, vol. 4, p. 290).

One of the students of Imam Khomeini states: "During sojourn of Imam in the holy city of Najaf, I visited Najaf illicitly due to being banned and met Imam Khomeini. It was afternoon. I opened the door of the room and said hello. He replied: Greeting to you." Did you also come illegally? I said: Yes. Then Imam said: "No longer come illicitly. Any time you wanted to come, come with passport." Imam insisted because of compelling me to observe law (Step by step with the sun, vol. 4, p. 157).

Ayatollah martyr Mostafa Khomeini says: "In the city of Hamedan when crossing one of the streets Imam traversed a long distance so as to use the crosswalk. He observed law to this extent."(Excerpts from the Life of Imam Khomeini, vol. 4, p. 291).

The late Haj Sayyid Ahmad Khomeini stated: "Once Hazrat Imam told me: Fetch me the book Kashf-e Asrar from the library near Jamaran. I told him: If you order by all means. I fetch the book. But the rule of the library is that they will not give book to anyone to take out of the library. The book can be studied in the library. Imam said: If this is their law, you need not bring the book from there. As such, I provided the book Kashf-e Asrar from another place and gave it to him." (Ibid, p. 292).

 

Imam and obeying the Law
Look of Imam Khomeini at law and law-abiding and practical obligation to law is his most important aspect of his political thought. In the sight of Imam Khomeini criteria for everything is law and the last word in all affairs is made by law, all are equal before law and happiness of individual and society will not be provided except by realization of law. And Islam is the religion of law and government in Islam is the government of law. As such, law is political thought of Imam Khomeini has the highest standing.
In the constitution of Islamic Republic of Iran that is confirmed by the Imam, law-abiding particularly in articles 4, 6, 22, 24, 25, 32, 33, 34, 36, 37, 38 and 39 has been repeatedly and openly underlined with the constitutional law and the positive laws being the Marjaiyat (institution of religious authorities).
By referring to the words of Imam Khomeini regarding law and need for legalism and concomitances of violating the law, one will realize the key and basic standing of law in the Islamic establishment of Iran and finality and rule of law in this system. For instance, one can allude to the following cases:
"We want it to be a government like that of Islamic government in which nothing would rule except law; nothing, only law should rule." (Sahifeh-ye Imam, vol. 4, p. 407).
In Islam everyone including even the noble prophet (s) is in one line in the face of law without any privilege and the commands of Qoran and Islam apply equally to all. Honor and value of human beings lie in obeying law that is the very taqwa or piety. One who violates the law is criminal and subject to prosecution." (Ibid., vol. 14, p. 221).
"In a country not government by law, particularly a law that is Islamic, and this country cannot be counted as Islamic. Those who oppose to law are in fact opposed to Islam. Those who raise voice against ratifications of Majlis after approved by the Guardian Council, they raise voice against Islam wittingly or unwittingly. If all the persons living in our country and all the groups in our country and all the organizations across the country are submissive to law and respect the law no difference will arise." (Ibid., p. 414).
"Don’t fear the Jurist Guardianship. Faqih does not want to bully the people. If a faqih wants to bully, this faqih will no longer commands velayat. What counts is Islam. In Islam law governs. The holy prophet was also obedient divinely law; he could not violate the law." (Ibid., vol. 10, p. 310).
"If a law counters my view, I should not take to the street and raise Cain shouting that I don't accept this law." This law is not a good law. Law is good; you should adopt yourself to law, not law to you. If law is supposed to adopt itself to you, to one group, to a population, to one person, this is not law. Law stands atop of everything and individual members of a country should adopt themselves to it. If law judges against them, they should submit to law. Then this country will be the land of law." (Ibid., vol. 14, p. 414).

 

Any Type of Law is better than Lawlessness
In the course of struggle launched by Imam Khomeini in time of tyrannical monarchy, one of the problems the Imam ascribed to the regime was that they are not bound to any law; for this reason, he observed: "What law do they act; let them come and deal with us according to the laws of Changiz." (Sahifeh-ye Imam, vol. 3, p. 406).
"History has it that Changiz with his nature of savagery and outdoor had with the bloodshed, he was committed to one law which was called the great Yasa Nameh." Mongol, Changiz and other Mongols refused to violate the law. Even they understood that respect for that law before the Mongols was like the respect Muslims held for Qoran in the early days of Islam. Violation of that law was equal to death (Ibid., vol. 3, p. 404).
And in the end, in comparison of Mongols with the rule of Pahlavi, he addressed: "Do they act according to the constitution? Genghis acted according to "Yasa" and Genghis and Mongols acted. This Genghis of our age, do these Mongols maintain respect for the constitution? Is their selection based on the standards of law? Do their lawyers enjoy legal conditions? Which one of their works can be said smacked of law, whether Sharia laws or customary and constitutional laws?" (Ibid., vol. 3, p. 405).

 

Aim of Law
Hazrat Imam Khomeini who was a mystic and great man considered spirituality and being refined as supreme goals of individual, social and political education; law provides the ground and serves as means for education. The expression he applied in this respect is as follows:
"Islam has a supreme view towards law; that is they consider it as tool and means for realization of justice in society, count it as means for correction of ideology and moral and edification of man. Law is for implementation an establishment of just social order in order for nourishment of edified man." (Velayat-e Faqih, p. 73).
For many of the upright and popular politicians and establishment of order and justice is the goal but for Imam who holds metaphysics and making divinely man, creation of order and justice is prelude to nurture edified man.

 

All Are Equal before Law
One of the remarks of Hazrat Imam regarding Islamic law is inclusiveness of this law here he states: "In Islam law governs. The holy prophet was also obedient to law; divine law. He could not violate. God almighty says that if you (prophet) say infract something against what I say I will call you to account." (Sahifeh-ye Imam, vol. 10, p. 310).
This obedience and unexceptionable attitude to divinely law pushes a Muslim how to be obedient to instructions of God in divinely culture without committing an iota of violation. Imam says elsewhere: "Government if Islam is the rule of law." In this type of government sovereignty vests exclusively in God and law is God's order and command. Law of Islam or command of God governs all individuals and Islamic government.
Historical facts have it that non-divine governments have suffered a foul dictatorship in different forms and entangled individually and collectively while rulers have often exempted themselves from law and considered them to be far beyond law.

Hazrat Imam has shown in practice that how a divinely man on top of a government will be remote from any selfishness and domineering nature and avoids any title and ceremonial movement considering himself to be the servant of people and counting the highest glory to be implementation of divinely law and serving the people refusing t make the least use of economic, social and political resources for himself and his relatives.
When the Imam held that government of Islam is the rule of law if the first person of our country in Islamic government commits an offence Islam ousts him; if he commits oppression or gives a slap to anyone, Islam will oust him; he is no longer entitled to rule … Government is law; law is God; that is, the ruler, the first person of the country if someone has a complaint against him and the judge summons him and he turns up it is his duty. Hazrat Amir did the same. We want such a government. Rule of law. Law signifies that law; that is, the progressive law of Islam (Sahifeh-ye Imam, vol. 4, p. 397). The results obtained are what we observed in 10 years. Due to this law-abiding we observed that borrowing Hojjat ul-Islam wal Muslemin Mr. Falsafi if around five million people welcomed the Imam around 10 million saw off his honorable body.
Imam Khomeini also states: There is no difference we persons/individuals in the law of Islam. There is no difference among groups (Ibid., vol. 9, p. 425). All should be bound to accept law even if it is against your idea (Ibid., vol. 14, p. 377). If you want not to be removed from the scene, accept the law. (Ibid., p. 378).

 

Law is on Top of All Affairs
To express the standing of law, Imam Khomeini observed:
"Law stands on the top and all individual members of a country should adopt them with it. If law judges against them, they should surrender them to law; it is then that the country will become the country of law." (Sahifeh-ye Imam, vol. 14, p. 415).
Imam Khomeini considers the criteria for behavior of all organizations and persons to be the constitution: "Criteria in action of organizations are the constitution, and violation of the constitution is not permissible for anyone whether those in charge of country, the incumbents and officers and civil and ordinary servants." (Ibid., vol. 14, p. 201).
Imam Khomeini states elsewhere: "… The law all should follow and obey without exception is the divinely rule for the chairman and the subordinate is submissive. The sole rule and law that is submissive and binding is the rule and law of God (Velayat-e-Faqih, p. 34).

 

Violation of Law, the Source of Differences
Great leader of Islamic Revolution considers the root of emergence of differences to lie in law-breaking and states; "If all persons who are in our country and all the groups that are is our country and all the organizations are the country are submissive to law and respect law, no differences would emerge differences should emerge due to lawbreaking." (Sahifeh-ye Imam, vol. 14, p. 414).

Elsewhere the Imam says: "Accept the law; all of you act on the border of law and it all acts on the border of law difference would not emerge." (Ibid., vol. 14, p. 378).

Imam in depicting the Law-breakers says:
"Those who want to break law are dictators who have come forward in Islamic guise or in the form of freedom and the like of such terms if all these gentlemen who claim t be advocate of law is together and openly read the law and determine the duty in accordance with law and are then obligated that if law is against my vote I would be humble and if it is in agreement I would be humble, no longer any quarrel would take place." (Sahifeh-ye Imam, vol. 14, p. 415).

 

Defeat, the Result of Lawlessness
Hazrat Imam believes that in any society order and law and the culture to act accordingly is counted as cornerstone of that society. Law is the axis of agreement and sympathy; victory and success of any nation come in light of attention for law or else anyone who refuses to submit to law will suffer from difference and eventually bring about his defeat. As such whether in present or in the past in any Islamic country is any defeat taking place for them one can observe the ominous shadow of discover the lawlessness. In the wars of early days of Islam in any case when Muslims were obedient to the prophet (s) and respected the words of prophet (s) as divinely law victory vested with them as anyone disorder and violation of law came about like the battle of Ohod, the grounds would be provided for defeat. By certifying to this holy verse he says: "And obey Allah and His Apostle and do not quarrel, for then you will be weak in hearts and your power will depart, and be patient; surely Allah is with the patient." (Surat Anfal: 46).

Obeying God and prophet is the most important Islamic law because by refusing to obey God and prophet the way for abjection and defeat would be smooth.
Regarding the place the verse was revealed, he said the verse dealing with the battle of Badr we read the phrase law: Avoid strife and difference so as not to be weak in the face of enemy, because difference and as the result railing to be committed to instructions of prophet (s) would bring about your defeat. The phrase signifies that your grandeur and dignity will be lost. The term "reih" means wind which subtly refers to the fact that if as the result of strife with each other you get feeble, you will become so light that wind will blow you away. This implies that your power will be lost (Tabarsi, vol. 4, p. 842). Hazrat Imam by referring to this verse does not consider difference and defeat in the cause of lawlessness to be restricted to battlefield, applying it to all affairs of life and states: "My dear ones! If you want Islam and the country listen to the command of God almighty and obey that which says: (Sahifeh-ye Imam, vol. 10, p. 83).

Return to Law and Unity Removes Differences
Imam Khomeini considers one of the valuable concomitances of observing law to be unity and friendship which Muslim nations have remained distant in the course of history in most cases. In his sight, return to law and observing law paves the ground for unity of society and Muslim nations and if order and law does not exist in society, that society will not be monotheistic and will not attach to its goals:
If we are supposed to lose order the society will not be a monotheistic one … A monotheistic society is one in which all do their own work. (Sahifeh-ye Imam, vol. 81, p. 493). He considers observing law and order in all aspects as triggering equality, brotherhood and unity to which God has invited all Muslims in the Qoran: "And from among you there should be a party who invite to good and enjoin what is right and forbid the wrong, and these it is that shall be successful." (Surat Al-e Emran: 104).

Hazrat Imam considers the law of Islamic government to be causing unity and brotherhood in which everyone attains to his right based on law, refusing to violate the right of others. In differences, law should be the axis in the same way that in conflict of interests and difference of tastes, law will be the way for salvation. Islamic Republic system will be protected in light of law among officials and people being pivotal.

"One should act in the same way that the Islamic constitution has provided and people has voted for it without causing that every tribe to have a government for it and doing an act in contrast to regulations … the Holy Quran has called you all brothers; Quran has concluded covenant of brotherhood among you." (Sahifeh-ye Imam, vol. 13, p. 135).

In another case he states: "As long as we are integrated and hand in hand reciting unity prayer we will be present. We will be destroyed when these hands are loosened, one speaks ill of the other and the other finds fault with us and vice versa …" (Ibid., vol. 17, p. 382).

To sum up, in view of the special standing of law particularly the constitutional law in the entire world particularly in Islamic Republic of Iran where the source of this law is Islam and shi'ism, the constitution should be the yardstick to evaluate the practice of people and officials.

 

When the criteria and standard of action is the law derived from Islam it is definitely that law which can be final for actions. According to the remarks of the Founder of Islamic Republic of Iran Imam Khomeini, the great, no one has the right to violate the law the way he himself was committed to it.