Islamic Republic of Iran has designed an elaborate and stringent system of Islamic constitutionalism under its 1979 Constitution. Not only does the Constitution aim at making sharīʿa the main source of legislation, it also establishes a detailed system to ensure the enforcement of its sharīʿa clause. The Constitution has vested the power of judicial review in the Guardian Council, i.e., a quasi-legislative body composed of six Islamic law specialists or Muslim jurists (fuqahāʾ) and six lawyers. The Council’s task is to make sure all laws are compatible with both Constitution and sharīʿa. However, when it comes to the questions of sharīʿa compatibility it is only the six Muslim jurists on the Council that are qualified to rule on the issue.
Despite this structural design and State’s aspiration to be a fully Islamic state, there are times when the dichotomy of state law and sharīʿa becomes manifest and creates tensions between the actors playing within the constitutional system and the traditional religious figures remaining outside.
The possibility of establishing an Islamic state in the modern world of nation-states has been the subject of much scholarly debate. Scholars have argued about the viability of this combination, the possible forms that an Islamic state may take in practice, and the degree to which the two can overlap.
This paper looks at one of the instances of a clash between the Guardian Council and one of the traditional Marājiʿ-e Taqlīd, (the highest ranking religious authority in Shīʽī School) to better analyze the intricate relationship between state law and sharīʿa.
This case first came up before the Court of Administrative Justice. The Court of Administrative Justice Act (as amended in 2013) gives the power of judicial review of regulations and bylaws issued by the Executive branch to this Court. If the Court faces a sharīʿa compatibility challenge in hearing a case, it must send an inquiry to the Guardian Council before adjudicating the case. The Guardian Council’s opinion on this matter would be binding on the Court.
In 2017, a plaintiff filed a case before the Court of Administrative Justice asking the Court to repeal bylaws and regulations about network marketing promulgated by the Ministry of Industries, Mining and Trade. The plaintiff argued that these regulations are against sharīʿa because in this model, the original marketer earns commission by recruiting sub-marketers exponentially. To supplement his claim, he provided two fatāwā from Ayatollah Khorasani and Ayatollah Khamenei declaring this practice harām at that time.
As required by the law, the Court referred the question of possible violation of sharīʿa to the Guardian Council. The Council upon deliberation concluded that the said bylaws were not against sharīʿa. The decision, however, was released without any reasoning or any reference to the contrary fatāwā of Shīʽī’ jurists on network marketing.
What happened next was unprecedented. In response to this decision, Ayatollah Naser Makarem Shirazi, one of the few living Marājiʿ-e Taqlīd in Iran, reiterated his fatwā stating that network marketing is most certainly forbidden under sharīʿa (harām). In one of his lectures in the Qom Seminary, he claimed that network marketing and pyramid schemes (which already is illegal in Iran) are based on the same business model and therefore both of them are forbidden under sharīʿa. He compared the network marketing to gambling in which professional gamblers profit at the expense of majority of other people involved in the process. Emphasizing that his view is shared among the majority of high-ranking Shīʽī’ jurists, he criticized the Guardian Council for reaching beyond its constitutional mandate and accused the Council of, in fact, issuing a fatwā on this matter. Arguing that only a Marjaʿ-e Taqlīd is qualified to issue fatwa, he advised the Guardian Council to remain within the boundaries set by the Constitution and not to encroach on the domain reserved for the Marājiʿ-e Taqlīd. He warned the Council that people would follow the opinion of the Marājiʿ-e Taqlīd and not the Guardian Council and if the Council keeps interfering with them it will imperil the status of Marja’iyat which is a pillar of the Shīʽī’ School.
This standoff raises difficult questions with regard to the design of an Islamic state and the point at which we have to draw the line between state law and sharīʿa and if it is possible at all to have a system of state law that is in total harmony with sharīʿa. What happens when there is disagreement between the official constitutional channels of Islamic law-making and the traditional religious jurists and circles operating outside the constitutional scheme? Article 4 of the Constitution requires all laws to be based on Islamic criteria and makes this principle the supreme principle governing even other articles of the Constitution. In practice، the state and the Guardian Council have used this Article in different occasions to expand their powers under the claim of religious supremacy even in the face of constitutional challenges. But here in this case, it was ironically the Guardian Council, itself, that firmly defended the Council’s status and powers vis a vis Marja’iyat as the sole arbiter of Sharīʿa compatibility questions under the constitution.
 QĀNŪN-I ASĀSI-YI JUMHŪRI-YI ISlĀMĪ-YI IRĀN [The constitution of the Islamic Republic of Iran] of 1358 /1979 as amended in 1989 [hereinafter Iranian Const.], Article 4.
 Iranian Const., Art. 91 and 94.
 Iranian Const., Art. 96.
 See Wael Hallaq, The Impossible State: Islam, Politcs, and Modernity’s Moral Predicament (2013), Noah Feldman, The fall and rise of the Islamic state (2008). For a discussion about the new developments in Islamic constitutionalism, i.e., judicialization of political questions such as the place of Islam in democratic public life see: Intisar Rabb, The Least Religious Branch: Judicial Review and the New Islamic Constitutionalism, 17 UCLA J. Int’l L. & For. Aff. 75 (2013).
 “The term Marja῾ al Taqlīd designates the highest ranking authorities of the Twelver Shī῾ī community. They are usually few in number. In local or national communities (Iraq, Iran) the term can be loosely applied to between four and eight high‐ranking jurists (or ayatollahs)… The position is informally acquired and depends on patterns of loyalty and allegiance, which vary with time, geography, politics (clerical and national), and the perceived conduct of the jurist”. Norman Calder, The Oxford Encyclopedia of the Modern Islamic World.
 The Court of Administrative Justice Act, Amended in 2013, Article 87.
 “Network marketing programs feature a low upfront investment…and the opportunity to sell a product line directly to friend, family and other personal contacts. Most network marketing programs also ask participants to recruit other sales representatives. The recruits constitute a rep’s “downline,” and their sales generate income for those above them in the program”. Network Marketing, https://www.entrepreneur.com/encyclopedia/network-marketing
 Mohammad Boroumand, Expert Report on the Cases before the Administrative Court of Justice (Guardian Council Research Center), 2017. It should be noted that the original fatāwā of these two Marājiʿ-e Taqlīd are not recorded in the online version of the suit available on the Guardian Council’s website.
 Guardian Council’s Decision, No. 96/102/1987, 07/23/2017: http://nazarat.shora-rc.ir/Forms/frmShenasname.aspx?id=vBn1dxOEF3U=&TN=+YmQoBqiDl6cn/yWjaVTxg==&MN=/v/QbAIgrng+zuAu9i3qrNxklmCeop9uxgS4D86LgGAZnLOn2zOtjBUCHV6CB1D1ZO8JCCyyLFI=
 Ayatollah Makarem Shirazi’s Opinion on Network Marketing (Jul. 13, 2018) http://hadana.ir/نظر-آيت-الله-مكارم-درباره-ي-بازار-یابی/
 “Pyramid schemes promise consumers or investors large profits based primarily on recruiting others to join their program, not based on profits from any real investment or real sale of goods to the public”: Pyramid schemes (May. 13, 1998) https://www.ftc.gov/public-statements/1998/05/pyramid-schemes
 Ayatollah Makarem Shirazi’s Statements on Network Marketing, https://makarem.ir/main.aspx?typeinfo=4&mid=401708&lid=0
 As mentioned before Marājiʿ-e Taqlīd are the highest-ranking religious authorities in Shīʽī’ School, therefore, religiously speaking, they outrank the Muslim jurists (fuqahāʾ) of the Guardian Council.
 The Guardian Council’s Spokesperson Respond to Ayatollah Makarem Shirazi’s Criticisms (Feb. 15, 2017) http://www.bbc.com/persian/iran-38981613
 The Response of One of the fuqahā of the Guardian Council to Ayatollah Makarem Shirazi https://www.jamaran.ir/fa/tiny/news-574772