Encyclopedia of Contemporary Jurisprudence

Validity of the Majority Vote in Government

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  • abstract

The validity of the majority vote in government(in persian:اعتبار رأی اکثریت در حکومت) is a theory in contemporary jurisprudence that considers the selection of the type of political system or government officials or legislation and decision-making in the field of unwritten rulings as legitimate based on the majority vote. This theory is opposed to theories such as “the theory of the invalidity of the majority vote in government” and “the theory of the conditional validity of the majority vote”. The jurists who believe in this theory have supported their claims by making reference to some jurisprudential principles such as the principle of preferences i.e., giving preference to one contradictory proof over another, the principle of the reprehensibility of preferring an unpreferred proof over a preferred one, as well as Qur’ānic verses referring to the concept of consultation (shūrā) and narrations from Imam ‘Alī (a) that imply that his guardianship over the people was activated based on the satisfaction and acceptance of the people.

Introduction

Managing the society based on the people's vote and considering the opinion of the majority in the management of public and governmental affairs is one of the newly emerging issues in the Islamic world, the history of which, especially in Iran, goes back to the victory of the constitutional revolution.[1] The legitimacy and validity of the majority vote in government issues has been accepted by some jurists as a theory in contemporary jurisprudence. The jurists who believe in the validity of the majority vote consider the acceptability and legitimacy of the government, ruler and government laws, and even the actualization of the ruler's sovereignty to be dependent on the consent and the vote of the majority.[2] Imam Khomeini, one of the contemporary jurists, in response to a jurisprudential question regarding how the jurist who fulfills all of the necessary conditions of being a jurist should take charge of the affairs of the Islamic society, said that the actualization of the appointment of the jurist vis-à-vis managing the affairs of the Muslims and the formation of the government is dependent on the votes of the majority of Muslims, which is mentioned in the constitution and which was referred to as “paying allegiance to the leader of the Muslims” at the advent of Islam.[3] In determining the scope of the validity of the majority vote in political issues, the jurists have consensus that the definite matters of the sharī'ah ranging from beliefs, acts of worship, and transactions, the ruling of which has been determined by the sharī'ah and reached man through revelation, are not included in the realm of legislation or determination by the majority vote.[4] The emphasis on consultation in Islam and asking people's opinion is related to the field of social and executive affairs and matters that are entrusted to the people by the sharī'ah.[5] It is for this reason that Mīrzā Nā’īnī, by diving the laws into “written rules” and “unwritten rules”, believes that the sharī'ah in the field of non-written matters has allowed people to fulfill their duties by passing executive laws and regulations depending on the requirements of time and place.[6] Muhammad Bāqir as-Sadr referred to this domain as the “domain of Firāgh”.[7] According to Masoud Emami, one of the researchers of religious issues, those who say that the majority vote is valid in collective decision-making areas, consider it valid only on the basis of the right to self-determination. However, based on other bases such as discovery of the truth, expediency, religious legitimacy and acceptability, the majority vote is either invalid or its validity can only be proven in a limited area.[8] Based on this perspective, the legitimacy of the majority vote on the basis of the right to determine one’s future has been considered to be on the same footing as man’s ontological freedom (including all optional actions in individual or collective form);[9] in the sense that the ontological freedom of human beings in collective life depends on their implementation to the obligatory tasks dictated by human reason and the sharī'ah. Therefore, the establishment and maintenance of any government, even the government of the infallibles, without the will and consent of the people will lack rational and religious legitimacy, and the consent of the people is considered one of the reasons for the legitimacy of the government.[10] According to this opinion, if the right of free choice of individuals in collective life leads to conflict of desires and the disruption of social order, then there is a need for a solution that preserves the two ideals of human beings, i.e. freedom of choice and order in social life. In times of conflict between these two, the aim is to give up the first principle of ontological freedom for all human beings due to the necessities of social life, and by preferring the vote of the majority to the minority, only this minority is forced to comply with laws or to accept a government that it does not believe in and thus, there is less damage incurred to the freedom of the people.[11]

Alternative theories

Regarding the legitimacy and validity of the majority vote in government issues, in addition to the theory of validity, two other theories have been presented by contemporary jurists known as “the invalidity of the majority vote in government” and “the conditional validity of the majority vote”.

Invalidity of the majority vote in the government

The jurists against the constitutionality of the government in the era of the Constitutional Revolution such as Sheikh Fazlullāh Nourī and Mohammad Husain Tabrīzī, some contemporary jurists such as Sayyid Mohammad Husain Husainī Tehranī, author of the book Wilāyat al-Faqīh in the Islamic Government[12] and Mohammad Taqī Misbāh Yazdī in the book Islamic Political Theory,[13] were opposed to the validity of the majority vote in government issues. According to this group of jurists, the legitimacy of a government or laws can only be granted by the Divine legislator, and the preference of the majority vote over the minority without reason will be contrary to the ruling of reason and considered an innovation (bid’ah).[14] To prove their theory, they referred to some verses from the Holy Qur’ān that condemn the majority and to some narrations as well.[15]

Conditional validity of the majority vote

Contemporary jurists such as Abdullah Javādī Āmolī and Mohammad Sādiq Rouhānī believe in the conditional validity of the majority vote. According to Javādī Āmolī, in the Islamic perspective, the truth comes from God Almighty alone and the Divine word is the source through which it is determined. For this reason, following the majority, which means taking moral beliefs and values from, is reproachable. [16] According to him, the majority can only be used as a decision-making method and to solve social conflicts, and it works in the capacity of recognizing the truth, not establishing the truth. According to Mohammad Sādiq Rouhānī, the majority vote is not a valid way of appointing a ruler,[17] but rather, its validity is exclusive to socio-political matters whose benefits and detriments the ruler is unaware of.[18]

Sayings and reasons

The concept of the majority vote, like other new concepts when entering Islamic societies, was evaluated by Shī’ah jurists in the contemporary period. Mohammad Husain Gharavī Nā’īnī in his book Tanbīh al-Ummah wa Tanzīh Al-Milla (the awakening of the community and refinement of the nations),[19] Hossein Ali Montazeri in his book Dirāsāt fī wilāyah al-faqīh wa fiqh ad-Dawlah al-Islāmiyyah,[20] Mohammad Hādī Ma’rifat in his book Jāme’eh Mudunī,[21] Nematullāh Sālehī Najafābādī in his book “Wilāyat al-Faqīh; The government of the righteous”,[22] Sayyid Kāzim Hosseini Hā’erī in his book Wilāyat al-Amr fī Asr al-Ghaibah, and Mohammad Sanad Bahranī in his book "The Foundations of the Political System in the Imāmī Opinion” are among the jurists who evaluated the concept of the majority vote and believed in its validity in governmental issues. Those who believe in the validity and legitimacy of the majority vote in managing government affairs have presented several reasons to support their theory, which are divided into two categories: rational and textual reasons.

Rational arguments

Referring to the basic “principle of taking preferences in conflict”[23] and , the principle of the reprehensibility of preferring an unpreferred proof over a preferred one (the reprehensibility of preferring the minority opinion over the vote and opinion of the majority),[24] are the most important rational reasons cited by this group of thinkers. Nā’īnī, one of the contemporary jurists in the era of the Constitutional Revolution, introduced the vote of the majority as one of the factors that give preference to one proof over another when two proof conflict.[25] This is a principle that is accepted and has been practiced by the intellectuals of the world [26] whose legitimacy has been confirmed by the verses about referring to a council (shūrā) and the narrations such as the Maqboolah of ‘Umar bin Hanzala.[27]

Those who accept this opinion linking between the majority vote to the concept of shūrā, whose legitimacy has been proven by the explicit text of the Qur'ān[28] and from the life of the Prophet of Islam (s) and Imām ‘Alī (a), believe that in case of a difference of opinion in certain matters and assuming equal legitimacy of the parties, due to the necessity of maintaining the system, one should rely on the majority vote. The reason mentioned in the Divine legislation with regards to the obligation of following the majority vote is the same as the reason for the necessity of maintaining the system.[29] Considering that in times of conflict of opinion and the splitting up of the people into a majority group and minority group, the council rarely reaches a unanimous consensus, recognizing the majority vote is considered the only way to fulfill the council. Sheikh Rezā Dehkhorāqānī is one of the other jurists who links the reason of the validity of the majority vote to its essence being a “pathway in achieving the interests of the people” (as opposed to it having essential virtuousness in and of itself). By saying that the mere participation of the majority and their vote is not the law, but rather, because this method is the only way to reach public interests, he considers it valid.[30]

Textual evidence

Those who believe in the validity of the majority vote have referred to verses from the Qur'ān including verses referring to the concept of conducting affairs by counsel, such as verses 159 of Sūrah Āl-‘Imrān and 38 of Sūrah Shūrā, as well as verses referring to the guardianship of believers over one another.[31] Mohammad Hādī Marifat, one of the researchers of Qur'ānic sciences in the contemporary era, by equating the concept of the council with the validity of the majority vote, believes that the command to consult means respecting the majority vote and applying their opinion.[32] Nematullāh Sālehī Najafābādī also equates the religious government with the council government and believes that the walī al-faqīh (guardian jurist) must consult with experts and representatives of the people and be subject to the opinion of the majority in identifying issues and making decisions. By justifying the verses reprimanding the behaviour and beliefs of the majority, he attributes these verses to transcendental issues and believes that the domain of these verses is a place that human reason cannot understand.[33] Abdul Karīm Mousavī Ardabīlī, one of the contemporary jurists, also links it with the issue of the guardianship of the believers in order to legitimize the majority vote.[34] According to his opinion, the guardianship of the believers is not a continuation of God's guardianship over the servants; Rather, it is the continuation of man's authority over his own soul. He explains this matter by stating that in the absence of a person in social fields, another person will replace him so that a legal vacuum does not form in the field of social affairs. According to this opinion, the community is considered a unit in which all humans are decision-makers, and in social issues, there will be no way other than the majority of votes for the crystallization of the human social vote.[35] The supporters of the validity of the majority vote have also cited narrations, especially from Imām ‘Alī (a), who made the actualization of his authority over the people subject to the consent and acceptance of all.[36] According to these narrations, Imām ‘Alī (a) told Ibn ‘Abbās about his pact with the Prophet (s) that he would not take control of the caliphate drawing his sword but rather, he would only take on the position of caliph if the people swear allegiance to him.[37] Among the other quoted narrations, there is the accepted narration of ‘Umar bin Hanzala[38] from Imām Sādiq (a) and the narration of the necessity of following the grand majority from Imām ‘Alī (a).[39][40]

According to Masoud Emami, the validity of the majority vote is based on the right to determine ones’ future, which is confirmed by several verses of the Qur'ān.[41] In these verses, God considers the Prophet's duty to be only to convey the message. Accordingly, the verses negate any compulsion of people to follow the truth and have left the choice of right or wrong to the will of the people. Also, the narration of the Prophet (s) and the Infallible Imāms (a) are considered a clear proof of the validity of the majority vote; because although they considered themselves chosen and appointed by God, they never imposed this vision on the people and did not consent to rule over the people, unless they were assured of the support of public consent and the majority vote for their rule.[42]

footnotes

  1. ↑ Khān Muhammadī, Jāyegāh Aktharīyyat dar Qur’ān bā Ta’kīd bar Ārāye Āyatullāh Mousavī Ardabīlī, p. 59-60.
  2. ↑ Montazerī, Hukūmat e Dīnī wa Huqūq e Insān, 1429, p. 37-38.
  3. ↑ Imām Khomeini, Sahīfeye Imām (An Anthology of Imām Khomeini’s Speeches, Messages, Interviews, Decrees, Religious Permissions, and Letters), 1385, Vol. 20, p. 459.
  4. ↑ ‘Allāmah Tabātabā’ī, Al-Mīzān, Vol. 4, p. 56-57; Qardhāwī, Fiqh e Siyāsī, p. 183
  5. ↑ Rostamī, Negāhī Tatbīqī bi Kārkard Aktharīyyat dar Democracy va Kitāb o Sunnat, p. 115 -116; Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54.
  6. ↑ Nā’īnī, Tanbīh al-Ummah, p. 134 – 135.
  7. ↑ Sadr, Iqtisādunā (Our Economics), p. 380.
  8. ↑ . Imāmī, I’tibār Ra’y Aktharīyyat dar Mabnāye Kashf Haqīqat o Sāyir Mabānī, p. 73.
  9. ↑ Imāmī, I’tibār Ra’y Aktharīyyat bar Mabnāye Haqqe Ta’yīn Sarnevesht.
  10. ↑ Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54.
  11. ↑ Imāmī, I’tibār Ra’y Aktharīyyat bar Mabnāye Haqqe Ta’yīn Sarnevesht.
  12. ↑ Husainī Tehrānī, Wilāyatul Faqīh fī Hukūmat al-Islāmiyyah, 1418, Vol. 3, p. 183 – 184.
  13. ↑ Misbāh Yazdī, Islamic Political Theory, 1391, p. 282.
  14. ↑ Nourī, Risāleye Hurmat Mashrūteh, Vol. 1, p. 106,; Tabrīzī, Risāleye Kashf al-Murād, pm 132.
  15. ↑ Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 56-57; Morādī & Mūsāzādeh,, Mashrū’īyyat e Jomhūrīyyat dar Islam, p. 103
  16. ↑ . Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 90.
  17. ↑ Javādī Āmolī, Wilāyatul Faqīh, 1379, p. 92.
  18. ↑ Rouhānī, Nizām e Hukūmat dar Islam, 1357, p. 28 – 31.
  19. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 115 – 116
  20. ↑ Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 554 – 564.
  21. ↑ Sālehī Najafābādī, Wilāyat e Faqīh e Hukūmat e Sālihān, 1380, p. 278.
  22. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.
  23. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.
  24. ↑ Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 554; Vol. 1, p. 564.
  25. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 115.
  26. ↑ Rouhānī, Nizām e Hukūmat dar Islam, 1386, p. 57.
  27. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 115 – 116; Rouhānī, Nizām e Hukūmat dar Islam, 1386, Hukūmat.
  28. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 116.
  29. ↑ Nā’īnī, Tanbīh al-Ummah, 1382, p. 116 – 117; Montazerī, Dirāsāt fī Wilāyatul Faqīh, 1409, Vol. 1, p. 553 – 554; Fayrahī, Fiqh va Siyāsat dar Iran e Mo’āsir, 1390.
  30. ↑ Dehkhārkhāni, Risāleye Tawdhīh Marām, p. 667.
  31. ↑ Chapter Tawbah:71.
  32. ↑ Ma’refat, Jāme’yeh Mudunī, 1378, p. 73 – 75.
  33. ↑ Sālehī Najafābādī, Wilāyat e Faqīh e Hukūmat e Sālihān, 1380, p. 278.
  34. ↑ Khān Muhammadī, Jāyegāh Ra’y Aktharīyyat dar Qur’ān bā Ta’kīd bar Ārāye Āyatullāh Mūsavī Ardebīlī, p. 68.
  35. ↑ Ardebīlī, Hampāye Inqilāb, 1385, p. 464 – 465.
  36. ↑ Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 71 – 73.
  37. ↑ Ibn Shahrāshūb, Manāqib, 1379, Vol. 1, p. 225.
  38. ↑ Ibn Shahrāshūb, Manāqib, 1379, Vol. 1, p. 225.
  39. ↑ Nahjul Balāgha, Sermon 127, p. 184.
  40. ↑ Morādī & Mūsāzādeh, Mashrū’īyyat e Jomhūrīyyat dar Islam, p. 108; Shākerī & Rajā’ī, I’tibār o Jāyegāh Ra’y Aktharīyyat dar Nizām e Siyāsī e Islam, p. 400. Chapter Āl ‘Imrān:20; Chapter Mā’idah:92 & 99; Chapter Ra’d:40; Chapter Shūrā:48; Chapter Nahl:35 & 82; Chapter Nūr:54, Chapter ‘Ankabūt:18; Chapter Yāsīn:17; Chapter Taghābun:12.
  41. ↑ Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 54 – 56.
  42. ↑ Imāmī, I’tibār Ra’y Aktharīyyat dar Partov e Kitāb o Sunnat, p. 62.
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