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The Theocratic Agency of the Iranian Legal System at the Legislative and Judicial Levels
Khodadadi, Bahman
Khodadadi, Bahman
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Abstract
The Iranian theocracy is an exceptional form of Islamic polity in terms of the special role that sharīʿa plays within the theocratic legal system. The project of sharīʿatization triggered in the aftermath of the Islamic Revolution of 1979 has shaped the Iranian legal system into the world’s most prominent theocracy, where revolutionary norms are married with Shiite jurisprudence. The legal analysis of the uneasy intersection between sharīʿaand the legal system, as entrenched within the Iranian constitutional framework, indicates that not only has the Islamicity of all laws firmly been guaranteed, any revision of theocratic elements of the Constitution has also been obstructed. The result is the formation of a theocratically frozen constitution. In addition to securing Islamicity at the legislative level, the Constitution safeguards the Islamicity of the legal system at the judicial level. In empowering judges to deliver sentences based on unwritten law (authoritative Islamic sources and authentic fatwa), even in criminal cases, the Constitution preserves the traditional role of Muslim judges and therefore deactivates the mechanism of codification, codification being considered a hallmark of modern Western legal codes. This has given rise to a systematic overlap between the scope of sin and crime and made the application of the last resort principle (ultima ratio) particularly complicated, if not impossible.