The Islamic Republic of Iran puts the law of the state, represented by the Iranian government, above canonical Islamic law, usually referred to as the Sharia. Khomeini established this system to overcome a particular handicap within Shiism that had created several splits historically and to empower the state.
In Shiism, the principle of authority is hereditary. It descends from Ali—the cousin and son-in-law of the Prophet Muhammad—through a family line of Imams. It could be argued that this family lineage was consolidated as a doctrine in response to the Umayyads consolidating hereditary power, although for Shias, this is a fundamental theological principle.
Shias are divided into several branches, mainly Fivers (Zaydis), Seveners (Ismailis), and Twelvers, the latter being the largest group and the one on which the Iranian Republic is based. There are other, smaller denominations. The main reason for the successive splits was disagreement over the identity of the next Imam or leader.
Shias believe that after the Prophet, God chose members of his family to lead the community, starting with his companion Ali and then his grandsons Hasan and Husayn. But after the death of the fourth Imam, Ali ibn al-Husayn, the first split occurred. Those who are known as Zaydis maintain that his son, Zayd ibn Ali (who was killed in a revolt against the Umayyads), was the fifth Imam and that the line ended there.
The Ismailis and the Twelvers, however, believe that the lineage continued not with him, but with his brother, Muhammad al-Baqir. The next split arose from a disagreement about who was the next Imam after the death of the sixth Imam, Jafar ibn Muhammad. Ismailis believe that the seventh and last living Imam was his son, Ismail ibn Jafar, and originally believed that it was the end of the line (while current Ismailis, mostly related to the Aga Khan, hold a different belief).
The Twelvers, however, maintain the seventh Imam was Musa ibn Jafar and that the line continues until the twelfth Imam, Muhammad al-Mahdi, who was not killed, but went into occultation in the year 874 and is due to return at the end of time to establish justice on earth.
The issue of power inheritance, both spiritual and worldly, was the significant factor splitting the Shia community. And although the major splits ended with the “occultation” of the twelfth Imam, the issue of who would rule in his absence came to dominate the Shia political agenda. For a period known as the “Lesser Occultation” that lasted roughly 70 years, it was believed that the Imam kept in contact with four deputies. But after the death of the fourth deputy without a designated successor, the period of the “Greater Occultation” began, which continues to this day.
From that point until the arrival of Khomeini, Shiism was not a unified political force. Power was divided between the scholars and the kings. The scholars, who came to be known as Ayatollahs, were the legitimate representatives of religion, while the kings, like the Safavids or the Qajars, were seen as divinely illegitimate but necessary to maintain order. This division created a certain quietism, which was justified by the belief that there could be no true justice until the hidden Imam, the Mahdi, returned.
This context is important for understanding the magnitude of the change brought about by Ruhollah Khomeini. The main theological concept with political repercussions that he introduced was the doctrine of the Wilayat al-Faqih. According to this, the leadership of the Ummah (though of course this applied only to Shias) during the occultation of the Imam devolves to a just and pious jurist, or faqih. This is enshrined in Article 5 of the Iranian Constitution.
Practically, what he achieved was the unification of worldly and spiritual power in a religious figure, the Supreme Leader. Western history is not unfamiliar with this dichotomy.
The “Two Swords” doctrine was formalized by Pope Gelasius I in the 5th century as the Duo Sunt (“There are two”): The Sacerdotium and the Regnum. The Church argued that while the King ruled the body and the land, the Church ruled the soul. This created a “checks and balances” system that was often violent, such as the Investiture Controversy, where Popes and Holy Roman Emperors fought over the right to appoint bishops.
The source of auctoritas and legitimacy to rule became one of the main sources of political conflict and political theory, culminating in the emergence of the nation-state. Carl Schmitt famously argued that “all significant concepts of the modern theory of the state are secularized theological concepts.” The absolute monarch took the place of the omnipotent God. When the West moved toward the nation-state, the “state of exception” moved from God/Church to the executive branch (the President or Sovereign), thus making the state absolute. That is, endowed with the auctoritas and legitimacy to legislate and execute legislation according to its own logic.
Khomeini tried to performe a “reverse secularization.” After the Iranian Revolution and in the midst of a wave of rising Arab nationalism, he took the absolute sovereignty that modern nation-states claim and handed it back to the jurist. By doing so, he ended the duality.
However, he also introduced another doctrinal change. He declared that law is a tool of justice and that justice is above law. Traditionally, in both Sunni and Shia traditions, human law is subordinate to the Sharia; any human government is accountable to it. Khomeini’s approach places the Islamic government above the Sharia. There is no law higher than the state’s law.
This is Wael Hallaq’s argument in The Impossible State: an “Islamic nation-state” is impossible because the ultimate authority is inverted. In Khomeini’s formulation, the ultimate authority is the Republic and the state law. The Sharia is an inspiration, to be interpreted by the Supreme Leader in order to guide the state while the last Imam is in “occultation”, but not necessarily the law of the state.
Khomeini effectively created the necessary conditions for the emergence of a Shia nation-state. By giving sovereignty—which, according to Hallaq, is the capacity to legislate—to the state, he subverted the traditional order of “government under Sharia” to “government above Sharia.” In order for this not to become a purely secular state, he placed the just faqih, the Supreme Leader, as guardian of the state.
However, as might be argued during this time of conflict, is the Supreme Leader really governing or is it the machine of the state, as represented in its different factions? In which case, one might question to what extent the state form of the Iranian Republic is more prevalent than the Islamic one? Carl Schmitt would argue that sovereignty lies with whomever can dictate the state of exception.
This same argument could be made, although with different flavors, regarding most nation-states that claim to be Islamic.
