UCLA UCLA Electronic Theses and Dissertations Title Constitutionalism and the Republic: Understanding Iranian Constitutional Development from 1906 to 1989 Permalink https://escholarship.org/uc/item/2q15q2j4 Author Radd, Benjamin Publication Date 2015 Peer reviewed|Thesis/dissertation eScholarship.org Powered by the California Digital Library University of California UNIVERSITY OF CALIFORNIA Los Angeles Constitutionalism and the Republic Understanding Iranian Constitutional Development from 1906 to 1989 A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Political Science by Benjamin Radd 2015 © Copyright by Benjamin Radd 2015 ABSTRACT OF THE DISSERTATION Constitutionalism and the Republic Understanding Iranian Constitutional Development from 1906 to 1989 by Benjamin Radd Doctor of Philosophy in Political Science University of California, Los Angeles, 2015 Professor Leonard Binder, Co-Chair Professor Steven Spiegel, Co-Chair Iranian constitutionalism has been in existence since the early twentieth century, and has taken many forms. Despite these decades of experience, Iranian constitutional development has yet to reach maturity, as reflected by the domestic turmoil of its various form of governance. Nevertheless, the Iranian constitutional experiment serves as a valuable case study of constitutional development, especially with respect to Islamic societies. This dissertation derives three principles from Iran's constitutional history and development that provide a foundation for understanding greater constitutional development in the region: (1) constitutionalism is a process-driven, rather than event-driven, phenomenon; (2) constitutional development performs best in conjunction with a republican form of government; and (3) judicial agency, in the form of an empowered judicial branch, is critical to any lasting constitutional process. !ii The dissertation of Benjamin Radd is approved. Anthony Pagden Asli Bali Steven Spiegel, Committee Co-Chair Leonard Binder, Committee Co-Chair University of California, Los Angeles 2015 !iii VITA vi Introduction 1 Part One · Legal Dimensions of Iranian Constitutionalism 12 Chapter One: Constitutionalism and the Essence of a Republic 16 1. The American Experience 16 2. A Global Consensus? 19 3. Whither the Republic? 23 Chapter Two: The Two Faces of Iranian Constitutionalism 27 1. Constitutional Legalism 29 Episode One: The Architect of Constitutional Legalism: Sheikh Fazlollah Nuri 35 Episode Two: Populist Constitutionalism for an Islamic Republic: 42 Ayatollah Khomeini 42 2. Constitutional Structuralism 56 Episode One: The Mantle of Constitutional Structuralism: 58 Mirza Mohammad Hossein Na’ini 58 Episode Two: The Constitutional Antihero: Ayatollah Shariatmadari 69 Chapter Three: On What Islamic Constitutionalism Means 75 1. A Question of Rights 77 2. ’He Who Issues Orders’ 80 3. Opposing Narratives and the Consequences for 1979 81 4. A New Islamic Republic? 84 Part Two · A Jurists’ Republic 87 Chapter One: Separation of Powers for a Constitutional Republic 91 1. Montesquieu and the Origins of the Modern Separation of Powers Doctrine 91 2. Montesquieu Applied: The American Experiment with Separation of Powers 95 iv 3. A New Constitution for a New Republic 100 Chapter Two: Separation of Powers, Tested 106 1. The Constitutional Crisis of 1981-1983 106 2. The Constitutional Crisis of 1987-1988 113 Chapter Three: Prospects for a Republic: Minority Rights and the Legacy of Shi’a Mythology 121 1. Shi’a Mythology and the Legacy of Majority Rule 122 2. The Islamic Republic’s Counter-Majoritarian Dilemma 127 Chapter Four: ‘A Lion without Head, Tail, and Body’ 132 1. The Mechanics of a Seventy-Year Search for a Constitution 132 2. At What Price an Islamic Republic? 134 Part Three · Discourse on Comparative Constitutionalism and Islam 137 On the Republic of Turkey and Turkish Constitutionalism 153 Part Four · Conclusion 155 Iranian Constitutionalism and the Ayatollah’s Legacy 163 Bibliography 166 v VITA Benjamin Radd attended Santa Monica High School, Santa Monica, California, from 1991 to 1994, and completed his secondary education at Taft High School, Woodland Hills, California, from 1994 to 1995. He entered the University of California, Los Angeles, in September 1995 and received his degree of Bachelor of Arts from the University of California, Los Angeles, in June 1999. In August 2000, he entered Stanford Law School, Stanford, California, and in May 2003 received his degree of Juris Doctor from Stanford Law School. In September 2008, he entered the Graduate School at the University of California, Los Angeles. Email Address: [email protected] Tis thesis was typed by the author. vi Introduction Tere are limits to power, as those who put their hopes in a constitution ultimately discover. … Constitutions become the ultimate tyranny. Tey’re organized power on such a scale as to be overwhelming. Te constitution is social power mobilized and it has no conscience. It can crush the highest and lowest, removing all dignity and individuality. It has an unstable balance point and no limitations. I, however, have limitations. In my desire to provide an ultimate protection for my people, I forbid a constitution. — Paul Atreides in Dune Messiah.1 Early on in Frank Herbert’s Dune science fctions series, the newly-anointed and all-powerful Padishah Emperor Paul Atreides is faced with a challenge by an organization comprised of dissidents who refuse to submit to his rule unless several conditions are met. Te specifc nature of their demands aside, what this rebellious “Ixian Confederacy” really sought were limits on Paul’s imperial authority — in the form of a constitution. Paul’s response, which may be taken as a critique of constitutionalism, is provided above. In this paper, I address the greater quandaries of modern constitutionalism as it has operated in the last two centuries. What can we expect constitutions to do? What should they look like? And how do we measure their progress and failure? Tese are broad questions, indeed, and I do not suggest that I am capable of addressing them in their entirety, on these pages or elsewhere. What I do propose 1 Frank Herbert, Dune Messiah. 1 is a different approach — a re-imaging of how to consider constitutional development and measure its progress. We live in a time where constitutions have become a standard, if not fashionable, accessory to all different types of regimes: democratic, republican, monarchical, oligarchic, and so on. In fact, all but a few states today have an official constitution, and the remaining holdouts are on their way there. However, that most of the world’s governments have something called a “constitution” is, for the most part, the only trait they have in common. In some states, the constitution serves as a shield to protect the governed from their leaders. Tere are also constitutions-as-fags: systems where the constitution is a symbol of national or religious identity, and not much more. In others, the constitution operates as a fence to limit the ruler’s authority, similar to what the Ixian Confederacy desired. And then we have constitutions-as-scepters, which exist in regimes where constitutionalism is used to establish or abet dominion and lordship over a given population. In one cultural and geographical region of the world, the Islamic Middle East, are found examples of each; and in one state in particular — Iran — is a laboratory of constitutional experimentation and development. Tat is where I begin my inquiry. Iran functions under the designation of a constitutional Islamic republic. What do each of these descriptors mean? And are they accurate? Setting aside the issue of Iran’s “Islamic-ness” (about which volumes can be written), to what degree, if any, is it either constitutional or republican in nature? 2 Tese questions matter for several reasons. First, in a broader sense, Iran’s one hundred-plus years of constitutional experimentation provides a unique opportunity to study and understand how constitutionalism evolves in Islamic countries and whether it is efficacious. Second, we can use Iran’s experience to make greater sense of what it means to be a “republic,” constitutional or otherwise. Te majority of the countries in the world call themselves republic without operating as one in the technical sense. And thirdly, with respect to Iran’s condition in particular, examining these questions will shed light on why, after two major constitutional revolutions and decades of time to foster them, Iran’s government remains in a state of constitutional dysfunction. Trough an analysis of Iranian constitutional development — including the pre-Islamic, Islamic, and Western legal-political theories that underlie it — I offer the following: • Constitutionalism, as a Western (European-American) construct, has different meanings and applications in other parts of the world. • Even within the same religious tradition, constitutional government can have starkly contrasting traits. • Te term “constitutional democracy” is often employed when what actually should be used is “constitutional republic.” • It is a mistake to view “constitutional theocracy” — or any other combination of constitutionalism and religion — as a fusion of two distinct political tracts; it is not a merger of equal theories. Rather, a state operates 3 as either a constitutional regime with theocratic attributes, or the inverse. Tis is not always apparent, and typically takes form as a process-driven (rather than event-driven)