Connection of the Immutable Laws of Islam with Government Structure and Alterable Laws
By: Ayatullah Professor Muhammad Taqi Misbah Yazdi
As said earlier, people argue that laws and ordinances needed by our society must be enacted and ratified in the legislative assembly. If we only rely on those mentioned in Islamic texts such as the Book and Sunnah, the needs of society can never be met. Considering that in the Islamic republican system laws are ratified by the Majlis deputies—based on the system observed in other democratic countries—why do we insist on calling our system “Islamic government” and introducing the laws ratified in the Majlis as “Islamic laws”?
There is no doubt that in every country the people’s representatives act according to the culture dominant there and respect the values of society while ratifying laws. As a matter of course, in our country whose people are Muslims and dominated by a particular culture and values, the Majlis deputies more or less observe the religious culture and values. But in any case, the process of legislation in our country is the process observed in democratic countries. Therefore, what is the need of saying that our government is Islamic and that Islamic laws are implemented in our country?
As we have said, the reply to this objection is that laws of Islam are divided into two: (1) immutable laws and (2) alterable laws that also change according to the circumstances of time and place. With changes and transformation in human societies and the emergence of diverse conditions in time and place, there is no change in the immutable laws of Islam. Their form and substance remains immutable and fixed. They must be acted upon under all circumstances at all times. Now, if in ratifying the current laws of the country the inalterable laws of Islam are not observed and the ratified laws are against the laws and decrees of Islam, those laws are not Islamic even if they are unanimously ratified by people’s deputies.
Any law that is against Islam has no legitimacy and legal standing. In fact, it cannot be regarded as a law at all. As stipulated in Article 4 of the constitution of our country, all laws and ordinances of the Islamic country must be consistent with Islamic laws and standards. If a ratified bill is against religious principles, it shall have no legal value.
Therefore, the immutable laws of Islam that have been mentioned in the Qur’an, and mutawatir, authentic traditions, must be observed and no sort of change or abrogation can affect them. Meanwhile, we have a set of alterable laws that are determined by the competent authority according to the needs and conditions of time and place.
In today’s culture the alterable laws are known as statutory laws that are enacted and ratified in legislative organs, but in Islamic culture and juristic parlance alterable laws are the same administrative laws whose enactment and ratification are within the discretion of the wali al-faqih who may enact and implement special ordinances consistent with the changing needs of society. At least, the ratified ordinances to be implemented must be endorsed and approved by him.
Of course, sometimes the wali al-faqih directly enacts laws and ordinances and at times these laws are ratified by different experts in the advisory body of the wali al-amr al-muslimin after sufficient study and deliberation. In any case, according to Islam, the credibility of statutory laws and ordinances lies in the permission and approval of the wali al-amr al-muslimin; otherwise, they are not binding at all.
The wali al-amr al-muslimin or any other legislative authority has no right to enact statutory laws and ordinances according to their personal whims by neglecting the general principles, standards and values of Islam. In other words, statutory laws and alterable ordinances must be codified and ratified within the framework of general immutable laws and decrees of Islam by the faqih or expert in religious and juristic questions who has the ability to apply them to particular cases.
Since it is a difficult task, it is stipulated in the Constitution of the Islamic Republic of Iran that the bills ratified by the Islamic Consultative Assembly must finally be approved by the Council of Guardians which is composed of outstanding jurists and legal experts to see to it that those laws and ordinances ratified by the Majlis are not against Islamic standards.
Primary and secondary laws and the secondary laws’ alleged conflict with Islam
Some people imagine that temporary administrative decrees and laws enacted according to certain circumstances of time and place are in some cases against the laws of Islam. It is because people always tend to consider only primary laws as the divine laws of Islam, without knowing that the secondary laws enacted for special conditions are also treated as religious laws. Islam also has a set of other laws that are called “secondary laws” and related to emergency cases and special conditions. Some of these secondary laws are also mentioned in the Book and Sunnah while others are mentioned in other religious sources. To enact them is under the discretion of the wali al-amr al-muslimin.
For example, it is obligatory upon us to perform ablution [wudhu] before saying our prayers. If bathing [ghusl] is wajib for us before prayer, then we have to perform ghusl. The obligatory nature of wudhu and ghusl is part of the primary laws for common situations when our bodies are physically sound and water is not harmful for us and there is available water. But under exceptional situations when, because of ailment, we cannot perform ablution as water is harmful to our health, or we have no access to water, to perform dry ablution [tayammum] shall become wajib in lieu of wudhu and ghusl as a secondary law. For this reason, it is said that if you have no access to water or if water is harmful to your health, tayammum is regarded as the emergency substitute of wudhu and ghusl.
Once the primary laws and also the secondary laws which are likewise called “emergency laws” are mentioned in the Qur’an and traditions, we cannot observe any difference between them because in practice, the subject of the primary law, like wudhu and ghusl, is one who has access to water and to whose health water is not harmful, while the subject of the secondary law, like tayammum, is one who has no access to water and to whose health water is harmful. As such, some people are commanded to perform ablution and others are commanded to perform dry ablution.
In some cases, however, opposite to the primary laws are special laws that are suitable to exceptional and emergency situations and not particularly mentioned by religion. Here, it is said that primary laws must be implemented unless they cause hardship and embarrassment because Islam does not want the servants of God to undergo intolerable hardship and embarrassment in discharging their obligations:
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“and has not placed for you any obstacle in the religion.”
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“Allah desires ease for you, and He does not desire hardship for you.”
The noteworthy point is that in some cases emergency laws and their substitution of primary laws are mentioned in religion and in other cases other emergency or secondary laws are not mentioned. But it is at the discretion of the wali al-amr al-muslimin to determine the obligation of the people if certain primary laws cannot be implemented and their implementation brings about unbearable hardship and embarrassment. So, what the wali al-faqih announces according to Islamic standards are secondary laws of Islam, because Islam has enjoined him to determine the obligation and duty of people in case of hardship and embarrassment because of which the implementation of certain primary laws can be suspended.
Thus, since they are only acquainted with the primary laws of Islam, when the wali al-amr al-muslimin or the legislature of the Islamic government approves a law contrary to primary laws, some people claim that such a law is against Islam. The fact is that the said law is neither against Islam nor religious laws. It is rather contrary to primary laws of Islam as it is part of the secondary laws. Indisputably, the secondary laws are also considered part of Islamic laws.
As stipulated by Islam, a traveler is not supposed to fast but a resident or non-traveler must fast. No one regards the non-fasting of a traveler as against the commandment of Islam because Islam itself has explicitly ordained that a traveler or sick person must not fast. Similarly, regarding social, civil, judicial, and commercial laws, if acting upon pertinent primary laws brings about unbearable hardship and embarrassment for the people, the implementation of those laws shall be suspended. According to special rules and regulations, the wali al-amr al-muslimin will enact a new law or decree consistent with the demands of time and place. Definitely, the said secondary law is not against Islam. It can be contrary to primary laws of Islam but Islam includes both primary and secondary laws.
In view of new needs that consistently emerge in Islamic society as a result of changing social conditions—such as the expansion of roads, or the need to administer a city and keep its cleanliness and beautification, or the need for a water and sewage system, electric supply and others which did not exist before—and because of the complexity of social conditions, population explosion and other socio-environmental factors, those needs can no longer be met by the people alone as they are not like the needs of past societies which could be met by people themselves. So, special ordinances must be enacted by the concerned authorities.
Our point is that these ordinances are not without basis and they are not formulated purposelessly according to personal whims. In fact, these secondary laws and ordinances must be within the framework of the general laws of Islam. It makes no difference whether these secondary laws indicate preference of what is more important over what is important, or their enactment depends on the demands of time and place. In our system this part of secondary laws is usually ratified in the Islamic Consultative Assembly with the endorsement and approval of the wali al-faqih. Hence, such laws are not outside Islamic laws because either they are ratified through a decree of the wali al-amr al-muslimin or they are codified according to special rules and regulations like “hardship and embarrassment” [‘usr wa haraj], “no harm” and other tenets [qawa’id] in jurisprudence.
As such, on the mere pretext that in the Islamic government some temporary ordinances and alterable laws are not mentioned in the Book and Sunnah, one cannot discard the Book and Sunnah and enact laws according to the will and dictates of the people. The immutable laws of Islam must definitely be implemented and alterable laws should also be enacted by the wali al-faqih or those who are granted authority by him within the framework of primary laws and general decrees.
Shortcomings of the democratic systems
As we have said before, the government structure is like a pyramid with three sloping sides, viz. (1) legislative power, (2) executive power (3) and judicial power. This pyramid-like of the government gained currency since the time of Montesquieu who raised the theory of separation of powers.
Up to the present, government has three branches but it does not necessarily mean that the same arrangement has to continue in future. Due to new advancements or the emergence of new social conditions, there may be a change in the structure of government. For example, additional branches of government might be created that will in turn make the government structure quadruple or perhaps pentagonal. Yet, it must be noted that the basic rule and principle in our system is that all powers that constitute government structure meet on top of the pyramid.
That is, once we liken the government structure which is composed of different powers and chains of command to a pyramid, the more we go down in each of its sides, the more we will find the powers decentralized and dispersed. At the base of the pyramid we will observe considerably huge, vast and multiple government departments. But as we gradually go up, the powers and structures of government become more centralized and integrated until finally all these powers meet on top of the pyramid and these dispersed and multiple powers attain unity and clarity.
In the pyramid of power, the three sides of powers gradually meet at the top, and that point is the spot of conjunction and union of all powers. So to speak, the discretion of the powers and branches of government join together and it is from there that they are divided and scattered on different sides—executive, legislative and judiciary—and each power has its own hierarchy of power or chain of command.
Exigency of the powers’ coordinating agency
It is true that a government system is composed of the three powers—executive, legislative and judicial—but they must be linked to each other. Since all of them constitute a single government apparatus, there must be a coordinating agency or unifying factor among them. Because of the absence of this unifying factor in many democratic systems in the world, the lack of coordination can be noticed which sometimes even leads to a national crisis. With the aim of avoiding such crises, certain measures have been conceived in some systems. One of these measures is the granting of veto power to the president.
For example, the legislature has the right to enact and ratify laws, and according to its function, the members of the congress ratify a bill after extensive debate and deliberation. Then, the said bill is approved by the members of the senate. However, as the president has the right to veto and suspend bills ratified by parliament, he may veto a ratified bill and suspend its implementation even if it be for a limited time. If legislation were the right of the legislative and the executive had no right to interfere in the affairs of the legislative, how would the executive veto a bill ratified by the legislative and suspend its implementation? So, a total separation of powers is not practical. There is always a sort of overlapping of functions between the legislative and executive.
Similarly, because of the absence of the coordinating agency and unifying factor, in some countries there are sometimes tensions among the three powers as an outcome of political differences among parties. It sometimes leads to a point where the country is deprived of any government or cabinet and thus practically paralyzed. For example, a government or cabinet is formed and granted authority but after a while it is dissolved by the parliament and thus collapses.
It is also possible that for a certain period, a new government or cabinet cannot be formed because the one who aspires to become the prime minister and form the government cannot garner the majority vote in parliament. In the parliamentary systems, the ruling party that can form a government is that which has absolute majority of seats in the parliament or can garner the majority vote through an alliance with other parties.
Recently one of our neighboring countries had no government or cabinet for sometime because the one nominated for premiership could not garner the majority vote of the MPs. The MP’s also attend to the current affairs of the country but whenever the prime minister and his deputies are temporarily appointed, the natural tendency is that they do not take their work seriously. A country whose officials are tardy and careless for a period of six months, for instance, will obviously incur great losses.
In some political systems, the president has the right to temporarily dissolve the parliament in special circumstances. Thus, executive power openly interferes and even dissolves the legislature. No doubt, such interferences lead to tension, discord and even intense crises. The reason behind it is that either the preeminent and influential factor to prevent such crises has not been premeditated in the laws of those systems, or the premeditated factor is not that effective. For example, in some systems the presidency is regarded as a mere ceremonial position and has not the executive power. At times, when the country is facing a crisis, it is he who gives stability by resolving the crisis. Actually, he demonstrates his role and function only during a crisis.
The coordination of powers in the wilayah al-faqih system
In current systems in the world measures have been taken to save the country from a crisis as a result of interference in one another’s affairs, but none of these measures or solutions is sufficient, and the problem or difficulty remains as before. However, in the wilayah al-faqih system—which is unfortunately presented as reactionary by some biased writers—such situations have been taken into account. Whenever the country faces a crisis, he guides the nation, solves the crisis with prudence and astuteness, and does not allow the country to plunge into perdition.
Like other countries, we also have executive power headed by the president and judicial and legislative powers which are separate from each other. But they are powers of the same system and join together on top of the political pyramid. All these powers converge at one point. The central and main point of the system at the top of the pyramid is the wali al-faqih who unifies all the powers and brings them together.
In contrast to other systems which either do not have the coordinating agency or unifying factor, or if there is any it is very weak and feeble, in the wilayah al-faqih system the three powers are under the leadership and supervision of the focal point of the system, viz. the wali al-faqih. He is also the protector of the Constitution. He sees to it that Islamic laws, values, objectives and ideals of the Revolution are not violated. He also serves as the coordinating agency between the three powers, inviting all to camaraderie, unity, amity, and understanding. If the country happens to face any serious tensions, he eases them and saves the country from the brink of disaster.
In the course of more than twenty years after the victory of the Islamic Revolution, whether during the time of the eminent Imam (q) or that of the Supreme Leader (may Allah prolong his sublime presence), in numerous cases the country experienced intense crises caused by particular disputes and tensions that willy-nilly happened in society. If it were not because of the sagacious management of the Leader, our country would have succumbed to crises that countries like Turkey, Pakistan, Bangladesh, and Afghanistan are experiencing today. Fortunately, by the grace of the presence of this holy personality and position, and the love and affectionate relationship between him and the people, such crises were undermined.
The wilayah al-faqih system’s superiority over other systems
By comparing the Islamic system of our country to the democratic systems in the world that are presently known as the most advanced government systems, it is worth enumerating the distinctions of the Islamic systems:
1. Internal cohesion
The first distinction of our system is its internal cohesion. We have shown a sample of the internal contradictions of those systems, saying that no power is supposed to interfere in another’s affairs but in actuality we do not know of any system in which the three powers are totally independent and do not interfere in one another’s affairs, and in which the law has not sanctioned a certain extent of interference in one another’s affairs, not to mention the illegal interferences, violations and pressures exerted by one power over another.
We can actually observe one branch of the government enjoying authority and exerting pressure on others. Once the military and disciplinary forces, economic and financial means, and the budget of a nation are at the disposal of the executive, in practice all instruments of pressure are at its disposal, and whenever the chief executive wants, he can abuse his power.
So, a sort of internal contradiction can be observed in the democratic systems in the world. In our system, however, that contradiction does not exist in spite of the fact that the three powers are separate from one another and each of them has independent discretions. It is because in our system there is the coordinating and unifying element called the wali al-faqih who, by virtue of his authority over the three branches of government, coordinates and brings them together.
As the pivot of the system, he prevents the emergence of any crisis. We have even witnessed how in many instances the Supreme Leader has prevented the emergence of tension among officials of the three powers. Whenever there was a crisis, the chief executive officially asked him to solve it by exercising the power vested in him, which he did. The wali al-faqih is directly not the head of any of the three powers but he designates the head of each of these powers and in the expression of the constitution, he confirms [tanfidh] the vote of the people. By virtue of his confirmation or designation, the position and function of each of the heads of the three powers acquire legitimacy and official status.
2. Internal and external executive guarantee
The second distinction of our system is the internal and external executive guarantee that exists in the people. This internal executive guarantee arises from the sense of religious responsibility in observing laws and ordinances of this Islamic state. Such an internal guarantee or control does not exist in other systems. In almost all other systems laws are imposed upon the people by force and violence. Whenever people sense more freedom and less control over them, they avoid being subjected to the laws.
It can be heard frequently that some people talk about the observance of law and order in European countries. They claim, for instance, that in Western or European countries the people spontaneously and instinctively act upon laws and ordinances and pay taxes. This outward discipline and order is due to an advanced system of control which compels people to observe laws and pay taxes. Because of it, only a few can violate laws.
The system of tax collection there, because of many centuries of experience especially in the last half century has a complex, yet accurate, mechanism. On this basis, taxes are collected from people in different ways and the masses willingly pay their taxes. However, by collaborating with national officials and establishing connection with power-holders, giant companies are trying to evade paying taxes.
At this point, I deem it necessary to tell those who are infatuated with the West that their talk about order, discipline and high-level culture is nothing but empty rhetoric and far from the truth. For example, it is claimed that in Western countries drivers observe traffic rules faithfully and maintain exemplary order and discipline. This claim is not true. I will mention an instance that refutes this claim.
I was invited to deliver a speech at the University of Philadelphia in the United States. In order to see the cities and towns along the way, I took a car from New York to Philadelphia. Along the way, I noticed that the car driver used to place a devise in front and remove it after a while. He repeated it many times. This incited my sense of curiosity and I asked him about the utility of the devise.
He said that in America the speed limit was 90 miles per hour. In order to detect any violation the police had installed radar along the highways. Since the traffic and speed of vehicles is monitored by radar the devise in question is used to undermine it. This devise can easily be sold and bought in the market. Knowing this, policemen are stationed along the highways to stop and fine drivers who, by using the devise undermine the police radar, and drive beyond the speed limit. As such, by installing the said devise they can drive at whatever speed they like. Whenever they approach a policeman, they hide it, and install it again afterwards!
You can see that in order to circumvent the rules and render futile the law-enforcers’ monitoring devise, they invented a counter-devise which was sold abundantly in the open market. Yet, we imagine that the Americans have such a progressive culture that they willingly and cheerfully obey ordinances and maintain order and discipline. Criminal cases reportedly happening there everyday have a long story. An acquaintance who returned to Iran after many years of residence in America said that there was no high school in America without armed policemen. Yet, every now and then we witness killing in those schools. For example, an armed student recently shot his classmates and teacher, killing them! This is an example of order and discipline in that country!
The main factor that prompts people in the West to abide by law is an external factor—fear of fine, imprisonment or physical punishment. If they were not only afraid of this deterrence and could render ineffective the monitoring devise of law-enforcers, most of them would not hesitate to violate laws. In the Islamic system, however, apart from this external deterring factor which exists, there is a more important factor which if cultivated among people has great potential to solve social problems. It is the internal deterrence which makes people obey ordinances and laws.
This factor stems from faith in the necessity of abiding by laws and ordinances of the Islamic state. In reality, people regard obedience to laws as part of their religious duties. If the Islamic system or state had not established and the Imam as leader and source of emulation [marja‘ at-taqlid] had not declare obedience to laws of the Islamic state as religiously obligatory, people would have obeyed the laws only in order to be immune from physical punishment or fine.
Nowadays, in obedience to the wali al-amr al-muslimin the religious and revolutionary people of Iran act upon the laws and ordinances of the state although, in certain cases, they know that those laws are not in their favor. This internal executive guarantee which stems from the faith of people and is a very important and valuable factor in persuading people to abide by the laws exists in our society and we do not fully comprehend its value.
This factor makes people consider laws of the Islamic state as laws of God and obeying them as pleasing to Him, and thus, having a sense of religious and divine responsibility they follow them and regard their violation a sin. Of course, we do not deny that there are also cases of law violation in our system but compared to the cases of obedience to laws these violations are insignificant. If the percentage of violations was greater than that of obedience, there could no longer be progress and the system would disintegrate.
3. The Leader possessing the highest degree of piety and merit
The third distinction of our system in comparison to other systems is that the Supreme Leader must possess the highest level of piety, moral integrity, and personal standing because he is the deputy of the Prophet (s) and the Imam of the Time (‘a). The people recognize him as the manifestation and embodiment of the personality of the Imam of the Time (‘a). As such, they also extend to him their love and affection for the Prophet (s) and the Imam of the Time (may Allah, the Exalted, expedite his glorious advent).
If the Supreme Leader, who holds the highest post and exercises all political powers, commits a violation or sin that leads to debauchery and injustice, he shall be automatically dismissed from the station of wilayah over the Muslims, and there will be no need for a court hearing or trial to prove the offense, just dismissal. The fact that he commits an offense, God forbid, makes him lose his justice and stand dismissed. The only function of the Assembly of Experts is to declare his incompetence because his dismissal results from his losing his sense of justice!
There is no political system in the world in which the high-ranking officials have the moral integrity that the Leader in our system has. In fact, the leaders of some countries are openly involved in moral corruption and sin. For instance, in the U.S. of America, one of the so-called greatest, civilized and progressive countries of the world, the president was accused of moral and sexual corruption. Certain witnesses bore testimony to his debauchery and offense and he himself made a confession. However, when the issue of his impeachment was brought up in Congress and then moved to the Senate, a majority of Senators acquitted him of the charge.
Thus, he remained in power as president until the end of his term and no problem emerged thereafter. All people of the world knew that he committed adultery and perjury but due to the political collaboration of some Senators the required number of votes to impeach the president was not reached, and that embodiment of moral corruption remained in his position! There are many similar cases about senior officials who openly violated their own laws and were even convicted in a court, but remained in their posts thanks to their political connections. They have also been elected for another term sometimes.
According to Islam if the Leader lacks even a single qualification and commits an offense, he is dismissed from his post because by committing a major sin he falls from justice and becomes a transgressor. Hence, he is not competent to lead the Muslims. There is no more need for any trial or the vote of the Assembly of Experts to prove his offense. No system in the world has shown such severity with respect to national officials, especially the highest official, i.e. the Leader.
4. Observance of the spiritual and real interests of human beings
Finally, one of the most important distinctions of our system is the observance of the real interests of human beings. As Muslims we believe that God knows best the interests of human beings, and we want those interests to be realized in society. This important pursuit cannot succeed except by acting upon religious laws and decrees. On this earth, it is only the Islamic Republic of Iran whose constitution (Article 4) has stipulated that all current laws and ordinances of the country should be ratified and implemented on the basis of Islamic standards. If a law or ratified bill is against the general principles of religion, it is of no legal value. Therefore, the only country whose laws guarantee the real interests of human beings is our country.
Everybody knows that this system achieved and accomplished its goals because of the sacrifices of our people and the blood of martyrs especially that of the Tir 7 martyrs. By sacrificing their lives and offering their valuable blood to the Revolution, they gave us honor, nobility and lofty values. We must be vigilant not to ungratefully lose those values. Today, hands are at work to besmirch the essence of Islam, wilayah al-faqih, the system, and the Islamic principles because these values are like thorns in their flesh. They have been trying their best to destroy them, and render them a blow, using all their ability, skill and artfulness.
Sometimes, they question the essence of Islam and Islamic laws in their speeches and newspapers with wide circulation, saying: “Today, it is no longer the time for us to talk about wajib and haram. We have to set the people free to decide for themselves and elect what they like!” They also dare to insult wilayah al-faqih. Had the high cultural officials not been highly tolerant, they would be legally prosecuted and punished. But these officials are not taking necessary action.
It is here that as revolutionary Muslims and followers of the Imam and the Supreme Leader, we have the duty to identify these impudent and insolent elements and not allow the sacred religion of Islam, Shi‘ism and values that are the means of our felicity in this world and the next to be sold at a meager and miserable price in the trade fair of deceitful politicians and identity-less culture effacers, and this would bring nothing to us but ignominy, disgrace and the curse of God, the Apostle (s), the angels and the future generations. Let it not be.
 Surah al-Hajj 22:78.
 Surah al-Baqarah 2:185.
 Now, it is almost 30 years after victory of the Islamic Revolution. [Trans.]
 It alludes to the sexual scandal involving ex-US president William Jefferson “Bill” Clinton and Monica Lewinsky, a former White House intern. The US House of Representatives approved two articles of impeachment against Bill Clinton on December 19, 1998, making him only the second president in US history to be impeached. Article I accuses him of perjury in his grand jury testimony about his relationship with Lewinsky while Article III accuses him of obstruction of justice and witness tampering. The US Senate began an impeachment trial against him on the two articles approved by the House of Representatives, but on February 12, 1999, the Senate acquitted him of the charges against him. The Associated Press, December 19, 1998. [Trans.]
 It is worthy of note that throughout the controversy, polls showed that a large majority of Americans thought the president was doing a good job and that he should not be impeached or removed from office. [Trans.]
 It refers to the bomb explosion at the Islamic Republican Party Headquarters perpetrated by the hypocrites on Tir 7, 1360 AHS (June 28, 1981) where the first Judiciary Chief Dr. Ayatullah Sayyid Muhammad Husayn Beheshti and 71 other members of the judiciary, thinkers, writers, and revolutionary figures were. [Trans.]