As I noted in my previous essay, with the rise of Shīʿī theocracy in 1979, the newly established Islamic Republic of Iran embarked on a “sharīʿatization” project. However, shortly after the establishment of the theocratic state, the ruling clergy recognized that complex realities of governance posed significant challenges, making the implementation of many religious precepts difficult, if not altogether impossible.[1] Confronted with this reality, a strategic reconciliation became necessary: if religion and politics could not coexist harmoniously, one would have to assume a dominant role to ensure the effective functioning of the theocratic state.
The most straightforward solution to these challenges was the issuance of a state decree (ḥukm-i hukumatī) by the Supreme Leader to resolve the conflict. To that end Ayatollah Ruhollah Khomeini, empowered by his position, used his authority to issue a directive designed to adjust, amend, or temporarily suspend sharīʿa laws.[2] His aim was to align with the changing needs and objectives of the newly formed Shīʿī theocratic state.[3] His view on the nature of such decrees was reinforced by Article 57 of the Iranian Constitution, which grants the Supreme Leader absolute authority (vilāyat-i amr) to guide the state’s affairs.[4] The constitutionally sanctioned absolute authority of his command derives from his religio-political doctrine of the “Absolute Authority of an Appointed Faqih” (vilāyat-i muṭlaqi-yi faqīh),[5] which asserts that the rights once exercised by the Prophet and the Imams in matters of state are now vested in jurists.[6] Consequently, the head of state holds the exclusive prerogative to halt the enforcement of any law he deems detrimental to the state’s interests.
Because the interests of the state form the foundation of governance, the Supreme Leader is to consider maṣlaḥa (the public / state interest) when issuing decrees.[7] In essence, a state decree serves as a tool in the hands of the head of state, whose responsibility is to determine what is advantageous or harmful to the Shīʿī political order. According to Ayatollah Khomeini, only a theocratic government can guarantee the protection and enforcement of Islamic laws and teachings against both internal and external threats.[8] In his view, the sole maṣlaḥa that remains unchanging is the preservation of Shīʿī theocracy itself.[9]
Although the issuance of a state decree offered a clear means of prioritizing religion over all else, it was not always practically feasible to rely on Ayatollah Khomeini for a directive to resolve every government dispute or tension. This limitation became particularly apparent in Revolutionary Iran’s early years, when a major issue emerged in the ongoing power struggle between the Parliament (Majles-i Shurā-yi Eslāmi) and the Guardian Council (Shurā-yi Negahbān). The Guardian Council was responsible for reviewing all legislation passed by the Parliament to ensure its alignment with Islamic principles and the Iranian Constitution; but they delayed the passage of bills.[10] Meanwhile, Parliament consistently pushed for the enactment of its draft laws, even in the face of opposition from the Guardian Council. Over time, repeated deadlock between the two bodies led to a significant confrontation between the legislative body, which represented the will of the people, and the Guardian Council, which acted as the custodian of God’s will.[11]
Recognizing the legislative deadlock as a potential threat to the nascent regime’s stability and survival, Ayatollah Khomeini, while still serving as Supreme Leader, strategically invoked the concept of maṣlaḥa to resolve the crisis. On February 6, 1988, he issued a decree establishing an administrative body initially called the Administrative Assembly,[12] which was later renamed the Expediency Discernment Council (Majma’ Tashkhis-i Maslahat-i Nezām).[13] The primary purpose of this Expediency Council was to mediate conflicts between the Parliament and the Guardian Council and to propose solutions based on maṣlaḥa.[14] Following a constitutional amendment in 1989, the Expediency Council was granted the authority to approve legislation that had been rejected by the Guardian Council, further consolidating its role in resolving legislative deadlocks.[15]
In the view of Said Amir Arjomand, the constitutionalization of the Expediency Council represented the culmination of the incorporation of the Sunnī principle of maṣlaḥa, a concept that had historically been rejected by Shīʿī tradition. Arjomand characterizes this development as the “Sunnitization of Shi’ism.”[16] This observation aligns with the perspective of traditionalists, who regard maṣlaḥa as a central methodological principle and heuristic tool in Sunnī jurisprudence, but as lacking legitimacy within Shīʿī jurisprudence.[17]
Turning from the legislative-governance structure under the Constitution back to Islamic criminal law: the application of maṣlaḥa is clearly exemplified in Article 554 of the 2013 Islamic Penal Code. The 1991 Islamic Penal Code had omitted clear guidelines regarding the amount of blood money owed to non-Muslims in cases of homicide; that gap left to judicial discretion the interpretation of Islamic sources and fatwās.[18] Exercising that discretion, judges typically ordered lower compensations for non-Muslims compared to Muslims.[19] This disparity raised constitutional concerns, especially in light of Article 13, which recognizes Iran’s Zoroastrian, Jewish, and Christian minorities. In 2003, parliamentarians representing religious minorities proposed a bill to standardize blood money rates for both Muslims and non-Muslims. Despite strong parliamentary support, the Guardian Council rejected the bill,[20] citing potential conflicts with Shīʿī jurisprudence and constitutional principles.[21] Undeterred, Parliament persisted, and the bill was referred to the Expediency Council, which eventually sided with the parliamentary push.[22] To justify this deviation from traditional Shīʿī jurisprudence, the Expediency Council invoked a fatwā issued by Supreme Leader Ayatollah Khamenei, which endorsed equal blood money for religious minorities and Muslims.[23]
In this instance, the Expediency Council regarded the Supreme Leader’s fatwā as aligning with maṣlaḥa, even though it diverged from established Shīʿī jurisprudence on the matter of blood money.[24] As a result, the legislature added a specific provision to Article 297 of the Islamic Penal Code, acknowledging that the blood money for religious minorities who are recognized by the Constitution, would be equivalent to that of Muslims. When the revised Islamic Penal Code was enacted in 2013, this provision was rephrased as Article 554, which states: “Based on the governance decree of the Supreme Leader, the blood money for felony against religious minorities recognized under the Constitution of the Islamic Republic of Iran shall be the same as the blood money for Muslims.”
One might reasonably suggest that if, at some future juncture, the Iranian public comes to view the elimination of corporal punishments—such as flagellation, execution, and amputation—as essential to a just polity, then the collective will of the populace could exert significant pressure on the theocratic state to adopt the mechanisms proposed by suspensionist scholars. In such a scenario, public mobilization could influence Parliament to advocate for reform. Should this initiative encounter resistance from the Guardian Council, the Expediency Council—faced with widespread popular support—may ultimately resort to maṣlaḥa and align with Parliament to facilitate the reconsideration or reform of ḥudūd enforcement.
Notes:
[1] See Said Amir Arjomand, “Shiite Jurisprudence and Constitution Making in the Islamic Republic of Iran,” in Fundamentalisms and the State: Remaking Polities, Economies, and Militance, ed. Martin E. Marty and R. Scott Appleby (University of Chicago Press, 1983), 88–109.
[2] Ayatollah Khomeyni emphasized that a state order, issued on the basis of maṣlaḥa, can override even primary rulings: “The government is empowered to unilaterally revoke any Sharia agreements which it has concluded with the people when these agreements are contrary to the interests of the state or religion. The government can also prevent any devotional [‘ibāda] or non-devotional affair if it is opposed to the interests of Islam and for so long as it remains so. The government can prevent the divinely imposed obligatory pilgrimage to Mecca (ḥajj), which is one of the important Divine obligations, on a temporary basis, in cases in which it is contrary to the interests of the Islamic community”. Ruhollāh Khomeini, Sahife–yi Imam, 21 vols. (Tehran: Āsar-e Imām, 1999), 20:451.
[3] Omer Awass, “The Challenge of Religious Governance in the Modern Nation-State: Negotiating Islamic Law in Post-Revolutionary Iran,” Sociology of Islam 9, no.1 (2021): 39.
[4] Article 57 reads: “The governing powers in the Islamic Republic of Iran consist of the legislative, the executive, and the judiciary powers. They operate under the supervision of the absolute authority of the command (Velāyat-e amr) and religious leadership (emamat) of the community of believers and according to the forthcoming articles of this law. These powers are independent of one another.”
[5] See Ruhollah Khomeini, Vilāyat-i faqīh (Asār-e emam Khomeini, 2000).
[6] Bahman Khodadadi, “Iranian Religious-political Development in Light of Three Epochal Transformations,” Political Studies Forum 3, no.1 (2022): 38. On the theory of valī-ye faqih, see Mehdi Hairi Yazdi, A Philosophical Treatise on Muslim Politics: Wisdom and Governance, trans. Daryoush Mohammad Poor (Springer, 2022), 157–85.
[7] On maṣlaḥa in Shīʿī legal thought, see Liyakat Takim, Shi‘ism Revisited: Ijtihad and Reformation in Contemporary Times (Oxford University Press, 2022), 113–26; Abolqasem Alidust, Fiqh va Maslehat (Farhang va Andishe-ye Eslāmi, 2022); Mostafa Mohaqeqdamad, “The Role of Time and Social Welfare in the Modification of Legal Rulings,” in Shi‘ite Heritage: Essays on Classical and Modern Traditions, ed. Lynda Clarke (Global, 2001), 20112.
[8] Ruhollah Khomeini, Sahifey-e Emam, 21 vols. (Asār-e emam Khomeini, 1999), 451. See Naser Ghobadzadeh, Theocratic Secularism: Religion and Government in Shi’i Thought (Oxford University Press, 2023), 155–57; Norman Calder, “Accommodation and Revolution in Imami Shi‘i Jurisprudence: Khumayni and the Classical Tradition,” Middle Eastern Studies 18, no. 1 (1982): 9–12.
[9] Kazem Baqeri, Fiqh-e Siāsi-ye Shiʿi (Farhang va Andishe-ye Eslāmi, 2009), 234.
[10] See Ahmadreza Twohidi, “Jāygāh-i Majma’ Tashkhis-i Maslahat-i Nezām dar system-i hoquqi-yi Iran,” Basirat 12, no. 35 (2001): 10–57.
[11] Awass, “The Challenge of Religious Governance in the Modern Nation-State,” 30.
[12] See https://farsi.rouhollah.ir/library/sahifeh-imam-khomeini/vol/20/title/243.
[13] Article 112 of the amended constitution reads: “Upon the order of the Leader, the Nation’s Exigency Council shall meet at any time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be against the principles of shariʿa or the Constitution, and the Assembly is unable to meet the expectations of the Guardian Council. Also, the Council shall meet for consideration on any issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in this Constitution. The permanent and changeable members of the Council shall be appointed by the Leader. The rules of the Council shall be formulated and approved by the Council members subject to confirmation by the Leader.”
[14] Bahman Khodadadi, On Theocratic Criminal Law: The Rule of Religion and Punishment in Iran (Oxford University Press, 2024), 37–39.
[15] Behrooz Ghamari-Tabrizi, Islam and Dissent in Post- Revolutionary Iran (I.B. Tauris, 2008), 86. Article 112 of the amended Constitution reads: “Upon the order of the Leader, the Nation’s Exigency Council shall meet at any time the Guardian Council judges a proposed bill of the Islamic Consultative Assembly to be against the principles of shariʿa or the Constitution, and the Assembly is unable to meet the expectations of the Guardian Council. Also, the Council shall meet for consideration on any issue forwarded to it by the Leader and shall carry out any other responsibility as mentioned in this Constitution. The permanent and changeable members of the Council shall be appointed by the Leader. The rules of the Council shall be formulated and approved by the Council members subject to confirmation by the Leader.”
[16] Said Amir Arjomand, After Khomeini: Iran Under His Successors (Oxford University Press, 2009), 41.
[17] See Asadullah Tavakkoli, Maslahat dar feqh-i Shiʿi va Sunni (Intisharat-e emam Khomeini, 2005), 246–47.
[18] Article 167 of the Constitution reads: “The judge is bound to endeavour to judge each case on the basis of the codified law. In case of the absence of any such law, he has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatawa. He, on the pretext of the silence of or deficiency of law in the matter, or its brevity or contradictory nature, cannot refrain from admitting and examining cases and delivering his judgment.”
[19] See Abd al-hakim Salimi, “qiṣāṣ dar islam,” The Journal of Fiqh va Usul 1, no. 21 (2006): 193. For contemporary discussion of Islamic differential policy regarding religious minorities, see Mohammad Fadel, “Muslim Theologies of Solidarity and Disavowal and the Challenge of Religious Pluralism,” Political Theology 21, no. 4 (2020): 311–13.
[20] Yonaten Kelia, “Yādi az tasvib-i tarh-i barābari-yi diye-yi peyrovān-i adyān-i elāh-i bā peygiri-yi rahbari va ayatollah Hashemi,” Etemad Newspaper, December 13, 2017, https://www.etemadnewspaper.ir/fa/main/detail/92933.
[21] “Shurā-yi negahbān pardākht-i diye-yi aghaliathā-yi dini rā matuf be nazar-i vali-I amr dānest,” Irna News, April 13, 2003, https://www.irna.ir/news/5499281/ شورای-نگهبان-پرداخت-دیه-اقلیتهای-دینی-را-معطوف-به-نظر-ولی-امر.
[22] Mohsen Rahimi et al., “Ruykard-i huquqi-yi Iran be āzādi-yi aqid-I va mazhab,” Majale-yi Huquqi 87, no. 123 (2023): 232.
[23] See https://khatkesh.net/rule/ نظر-مشورتی-7-390-مورخ-1383-02-07-اداره-کل-حقوقی-قوه-قضائیه/15732?.
[24] For the established position in Shīʿī fiqh, see Alireza Amini and Mohammad-Reza Ayati, Fiqh-i Estedlāli (Taha, 2006), 664.
(Suggested Bluebook citation: Bahman Khodadadi, Navigating Legal Impasses: Maṣlaḥa, State Decrees, and Shīʿī Jurisprudence in Post-Revolutionary Iran, Islamic Law Blog (May 27, 2025), https://islamiclaw.blog/2025/05/27/navigating-legal-impasses-ma%e1%b9%a3la%e1%b8%a5a-state-decrees-and-shi%ca%bfi-jurisprudence-in-post-revolutionary-iran/)
(Suggested Chicago citation: Bahman Khodadadi, “Navigating Legal Impasses: Maṣlaḥa, State Decrees, and Shīʿī Jurisprudence in Post-Revolutionary Iran,” Islamic Law Blog, May 27, 2025, https://islamiclaw.blog/2025/05/27/navigating-legal-impasses-ma%e1%b9%a3la%e1%b8%a5a-state-decrees-and-shi%ca%bfi-jurisprudence-in-post-revolutionary-iran/)