Scholarship in “Plain English”: Noah Feldman on The Democratic Fatwa

By Cem Tecimer

Citation: Noah Feldman, The Democratic Fatwa: Islam and Democracy in the Realm of Constitutional Politics 58(1) Okla. L. Rev. 1-9 (2005)


‘Ali Sistani, who was born in Iran but spent most of his life in neighboring Iraq, became a central figure after the overthrow of Saddam Hussein. This was, in part, due to the assassination of Mohammad Baqir al-Hakim, a prominent cleric who was head of the Supreme Council for Islamic Revolution in Iraq (SCIRI or the majlis). His assassination and his replacement by his brother ‘Abdul ‘Aziz, a less charismatic figure, gave Sistani the opportunity to emerge as the most prominent Shīʿī cleric with prestige and authority, despite his formal distance from everyday politics, especially in the days of Saddam. He was thought to be primus inter pares among other scholars – all part of the ḥawza, an educational system and collective that Feldman defines as “a kind of commission of roughly a thousand Shī‘ī clerics who gain their authority over the community’s religious affairs through advanced Islamic legal study and personal piety” (p. 2).

The Coalition Provisional Authority (CPA) of Iraq—which was the transitional government of Iraq, composed of occupying forces—wanted a democratic transition to take place as soon as possible and, partly owing to these considerations, the CPA initially envisioned that a constitution would be drafted by a constitutional drafting body to be selected, and not elected. Sistani issued a fatwā (which Feldman describes roughly as “the equivalent of an opinion letter in contemporary U.S. legal terms,” p. 5) against the idea of a provisional authority not representative of the Iraqi people writing a constitution. The fatwā was an appeal to “pure democratic theory” (p. 6) and urged a democratic constitution making process where the members of any constitutional drafting commission would be elected. As Feldman puts it, “[t]he irony that it was a religious scholar standing up for democratic process … should not be lost on us. But neither should we miss the deeper irony that it was the democracy-exporting United States that was being reminded of the undemocratic character of its plans for the Iraqi constitutional process” (p. 7).

Key terms:

(i) Shīʿī : the hawza, which is hard to describe, lacks the reach and resources of the Holy See, but nevertheless is “a kind of commission of roughly a thousand Shīʿī clerics,” or put in other terms, is “a mix between the Roman curia and a distinguished faculty of arts and sciences in a major research university” (p. 2); Shīʿī politicians and their Islamic Da‘wa Party professing “the compatibility of Islam and democratic rights and values” (p. 2); the Supreme Council for Islamic Revolution in Iraq (SCIRI), also known as the majlis, which is an Iranian creation that acted as “an exiled political organization” (p. 3); Mohammad Baqir al-Hakim, a Shīʿī scholar and politician, acted as the head of SCIRI was surely more charismatic than Sistani but was assassinated, which contributed to the emergence of Sistani as an authoritative figure in Iraqi constitutional politics, because al-Hakim was replaced by his brother ‘Abdul ‘Aziz who was not a scholar himself and had to rely on Sistani for “clerical legitimacy” (p. 4).

(ii) Islamic constitutional law (esp. in Iraq): while the occupying forces, through the Coalition Provisional Authority (CPA), desired a rapid transition of power to Iraqis and therefore envisioned a speedy but undemocratic constitutional drafting process by selections as opposed to elections, Sistani issued a fatwā advocating for democratic legitimacy in constitution making. The fatwa urged that “[a]ll believers must insist on the accomplishment of this crucial matter [drafting of the Iraqi constitution by a democratically elected constituent assembly]…” (p. 6); importantly, this fatwa proved how Islamic law as expressed by Islamic scholars could urge for democracy-promoting means in the field of constitutional law, and ironically, at times, even more democratic solutions than proposed by what are known to be liberal democratic countries that profess to export democracy (the U.S. in this case) (p. 7); Sistani’s fatwā effectively played a role in the authorship of the Transitional Administrative Law which envisioned a democratically elected constituent assembly (p. 8); Sistani’s fatwā, in general terms, is also proof of how Islamic law and institutions can be democracy promoting as equally as or at times greater than other forces (p. 9).

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