A Jurisprudential Study of Obedience and Civil Disobedience (Book)
- abstract
The book titled "A Jurisprudential Study of Obedience and Civil Disobedience," (in persian: بررسی فقهی فرمانبرداری و نافرمانی مدنی) written by Seyyed Javad Varaʿī, explores the topic of civil disobedience within the context of Islamic society over ten chapters. The author, while defining civil disobedience and resistance, attempts to clarify its distinction from rebellion, combat and corruption on earth. He acknowledges the right to civil disobedience in legitimate religious governments and insists that rulers must respect the rights of disobedient citizens. On the other hand, he establishes certain conditions and limitations for disobedience to clearly delineate it from rebellion, combat and corruption, ensuring that no citizens' rights are violated. He also considers civil disobedience permissible as long as it does not disrupt social order, harm others or weaken the Islamic government. At times, the author interprets religious narratives broadly to support his claims. He also occasionally relies solely on the practices of Prophet Muhammad (PBUH) or Imam Ali (AS) as evidence, which may be insufficient for substantiating his arguments. Nonetheless, this book is seen as a suitable step toward the development of Shia political jurisprudence, emphasizing citizens’ rights.
Overview of the Book
The book "A Jurisprudential Study of Obedience and Civil Disobedience" by Seyyed Javad Varaʿī is categorized under political and social jurisprudence and is published in collaboration with Samt Publications and the Research Institute of Islamic Studies and University. The author's main aim is to clarify the boundaries of citizens' rights and rulers' rights, ensuring that rulers cannot punish critics under the pretexts of "rebellion”, "combat”, or "corruption," while critics also acknowledge their limits and do not disrupt social order with every protest.
Structure of the Book
The book has a research-oriented structure, organized into ten chapters aside from the introduction. In the introduction, the author outlines the main question and sub-questions, along with the methodology and background of the research. The first chapter addresses concepts and general themes, explaining terms such as obedience, civil disobedience, civil resistance, revolution, uprising, rebellion, combat, legitimate government, and illegitimate government. To clarify the research topic further, the author delves into the jurisprudential discussions of "rebellion" and "combat," and specifies the criteria for each. He also clarifies the meanings of legitimate and illegitimate governments at the chapter's conclusion. In the subsequent chapters, the author discusses the foundations of obedience, the philosophy of the right to disobedience, the scope of obedience and disobedience, exceptions to the permissibility of disobedience, the duties of governments regarding civil disobedience, and the criteria for determining the legitimacy and illegitimacy of disobedience.
About the Author
Seyyed Javad Varaʿī, known as Seyyed Javad Varaʿī (born 1963), is a professor at the advanced levels and a researcher at the Qom Seminary. His focus is primarily on political and social jurisprudence. He has published numerous articles, several of which can be found on the Comprehensive Portal of Humanities and the Noor Specialized Journals website. His personal website also showcases his authored books. Varaʿī served as the editor-in-chief of the quarterly journal "Islamic Government" for four years and has long been associated with the Qom Seminary page of the Islamic Republic newspaper. Many of his research works are in collaboration with the Research Institute of Islamic Studies and University, the Assembly of Experts Secretariat, and the Hajj Research Center. Titles of some of his books include "Rights and Duties of Citizens and Officials," "Imam Khomeini and the Revival of Religious Thought," "Research on Naini's Political Thought," and "Citizens' Rights in Islamic Thought."
Published Critiques
A critique and discussion session regarding the book "A Jurisprudential Study of Obedience and Civil Disobedience" was held on December 2, 2016. A detailed report of this session, titled "A Look and Critique of the Jurisprudential Study of Obedience and Civil Disobedience," was published in the third issue of the "Contemporary Jurisprudence Studies" quarterly. You can read the report [here]. Additionally, in March 2017, a debate titled "The Right to Criticism in Islamic Government" took place at the Research Institute of Humanities and Cultural Studies. In this session, Mohammad Hassan Ziaei Far and Ali Mohammadi Jorokouyeh spoke about the issue of criticism in Islamic government, particularly in relation to the book "A Jurisprudential Study of Obedience." Varaʿī responded to questions and criticisms raised. You can read the report of this session [here]. An article titled "Legitimate Rebellion," written by Mohammad Kazem Haqani Fazl, presents a critical perspective on this book and was published in the seventh issue of the "Book Critique on Jurisprudence and Law" quarterly. You can read the article [here].
Content of the Book
The book "A Jurisprudential Study of Obedience and Civil Disobedience" is divided into an introduction and ten chapters. In the introduction, the author discusses background, methodology, sources and topics of discussion. The first chapter is dedicated to general concepts and definitions, while the tenth chapter summarizes and concludes the findings.
Foundations of Obedience and Philosophy of the Right to Disobedience
In the second chapter, titled "Foundations of Obedience," the author presents five views: social contract, public consent, general will, justice, and the will of the Creator of humanity as foundations for obedience. Since his preferred theory is the latter, he explains its rational and textual reasons. Chapter three, titled "Philosophy of the Right to Resist and Civil Disobedience," logically continues from the second chapter, where the author explains the right to disobedience of citizens based on each of the aforementioned foundations.
Scope of Obedience and Civil Disobedience
The scope of obedience and civil disobedience is the title of chapter four. The author defines crime and sin, proposing four hypotheses: the synonymy of crime and sin, the generality of sin over crime, the generality of crime over sin and the relation of generality and specificity between crime and sin, ultimately accepting the last hypothesis. He elaborates on this assumption by offering a comprehensive discussion of six jurisprudential theories regarding the necessity of punishment for the sinner, while presenting and critiquing five theories along with their reasons. He then seeks to answer the question: Is every crime a sin and subject to punishment? In this context, he first discusses three theories regarding the nature of governmental decrees and state laws, and in the following discussion, he critiques and evaluates these theories with supporting evidence. The three theories are drawn from the works of Imam Khomeini (d. 1989), Allameh Tabatabai (d. 1981), and Ayatollah Safi Golpayegani. In this argument, the author refers to four categories of Qur'anic verses and six categories of narrations, including the acceptance of Umar ibn Hanzalah and Imam Ali’s (AS) letter to Malik Ashtar.
Resistance and Disobedience in Legitimate and Illegitimate Governments
In chapters five and six, the author examines resistance and disobedience in both legitimate and illegitimate governments. Varaʿī points out that the legitimacy of governments can be assessed based on both governance methods and the character of the ruler. In this book, the criterion for classification pertains to the ruler's character. Illegitimate governance is further divided into just and unjust. The author questions the permissibility of civil disobedience against the just laws of an illegitimate government (p. 147), although in subsequent lines, he confirms the right to disobedience in efforts to dismantle illegitimate authority (p. 149). He then supports the justification for disobedience against unjust rulers' decisions with five categories of Qur'anic verses and the practices and traditions of the infallibles (AS) during periods of unjust rule. He cites instances of Ali ibn Abi Talib's (AS) opposition to the decisions of the caliphs, particularly the third caliph, as well as the objections from individuals such as Abu Dharr, Miqdad, Ammar, and Malik Ashtar, which were validated by the silence of the infallibles.
The Duties of Governments, the Authority of Determination, and Exceptions to Disobedience
In the seventh chapter of the book, the author discusses the question of what instances of disobedience are considered unjust. In the eighth chapter, the reactions of the government to civil disobedience are examined, outlining the government's responsibilities in the following order: investigating the claims of the disobedient, persuading them, moderation and exposure, referring to the arbitration of legal institutions, and finally, executing social sanctions commensurate with unjust disobediences. Finally, the ninth chapter of the book focuses on determining the authority to identify permissible acts of disobedience. The author explores two possibilities: first, the public, similar to cases of enjoining good and forbidding wrong, and second, independent institutions within the governance.
Claims
Conceptualization and Delimitation with Other Related Concepts
According to Varaʿī, civil disobedience is characterized by three features: non-violence, accountability and limitation (p. 10). It is defined as: "The refusal to comply with unjust laws, regulations, policies, or decisions of a government that contradict Sharia, with the aim of annulment or amendment, without violating the principle of sovereignty; provided that critique, criticism, and legal protests have not yielded results" (p. 10). The distinction between disobedience and civil resistance lies in the fact that civil resistance does not involve active steps, while disobedience involves action (p. 11). The author argues that if the criterion for the realization of rebellion (baghi/ بغی) is solely overthrowing, rather than resorting to arms, then those who aim to overthrow through cultural tools such as media should also be considered "rebellious" (p. 19). However, the means for dealing with them should be confined to those same cultural tools. The author claims that if the number of people intending to overthrow the government is not substantial enough to necessitate war and combat, these individuals are either brigands or equivalent to brigands (p. 19). The writer excludes customary regulations of governments, such as municipal laws, from the discussion of civil disobedience (p. 130). However, it should be noted that many urban laws ultimately lead to the appropriation of people's property and lives, which are all condemned by religious rulings. The author overlooks this premise and merely emphasizes that if these laws lead to injustice, the subject of disobedience is also realized.
The Relationship between Sin and Crime
Varaʿī believes that not every sin qualifies as a crime in legal terms and does not entail punishment; nevertheless, some sins that do not fall under Sharia penalization may still deserve punishment due to their public nature (p. 64). On the other hand, obedience to a non-infallible ruler does not carry a religious ruling; therefore, disobeying their orders, although it may be a crime, is not necessarily a sin and does not incur punishment (p. 91). Thus, civil disobedience within the realm of customary laws is religiously permissible, but it is not allowed under Sharia laws.
Disobedience under the Leadership of the Infallibles
Disobedience in the government of the infallibles is not permitted. However, not all forms of disobedience necessarily carry the ruling of rebellion or armed conflict. Nonetheless, in the government of infallibles, the officials are not infallible and do not have the ruling of the infallible. Therefore, in cases of laws that contradict Sharia, those against public interest and justice, as well as when officials act contrary to the law, disobedience is permissible (p. 109).
The Principle of Permissibility of Disobedience
The principle holds that civil disobedience is permissible unless disobedience leads to one of three categories: disruption of social order, weakening the Islamic government, or causing harm to others. Consequently, in doubtful situations, the permissibility of disobedience remains unchanged (p. 199). However, civil disobedience is allowed only when all legal avenues for the enforcement of the rights of the disobedient and the annulment of laws that contradict Sharia and justice have been exhausted (p. 201). In cases where there might be a dispute about the permissibility or otherwise of a specific act of disobedience, the author first suggests two options: the general public and independent institutions within the governance. However, he ultimately asserts that if legal institutions are unable to resolve the issue, the determination authority still lies with the general or specific customs, and it is up to the people themselves to decide whether the disobedience is permissible (p. 129).
Foundations, Reasons and their Investigation
The Method of Usuli Ijtihad and Use of Rational and Transmitted Evidence
The author's basis for accepting the right to civil disobedience is the will of the Creator of humanity. According to the author's accepted theory, if a government deviates from a specific divine framework, the right to civil disobedience is established for everyone (p. 39). The most significant rational proof for the permissibility of disobedience is the precedence of God's command when there is a conflict between God's command and that of the ruler (p. 111). The most important transmitted evidence consists of a set of verses that consider obedience to beings other than God as secondary to obedience to God, as well as a collection of narrations with the common theme that "there is no obedience to a created being in disobeying the Creator." Additionally, the author refers to two groups of evidence to substantiate his claim: the evidence for the obligation to enjoin good and the evidence for the permissibility of violating the ruler's command (pp. 114-140). The author's primary basis for the non-permissibility of disobedience in the government of the infallible is a collection of verses from the Qur'an and hadiths that explicitly state the necessity of obeying the Prophet (PBUH) and the prohibition of disobedience towards him (pp. 98-108). In sections such as the necessity of convincing the protesters, the author's arguments primarily rely on the practical conduct of the Prophet (PBUH) and the Commander of the Faithful (AS). It seems that given the minimal implications of conduct, it is not possible to derive a binding conclusion for other rulers from the conduct of the Ahlul Bayt (AS). This is because we know that conduct, especially in cases where there is no repeated action, cannot establish a binding ruling. From the behavior of the infallible, at most, one can conclude the permissibility of an act, and proving the obligation or even the preferred nature of an act based solely on the conduct of the infallibles requires additional indicators, which the author does not provide in this section. Proving permissibility is also based on the understanding that this behavior is not exclusive to the Prophet or the Imam. It appears the book's author has taken for granted that there is no difference between the governmental authorities of the infallible and other rulers, but this claim itself requires proof. Although even under this assumption, proving the ruler's obligation to persuade the protesters lacks evidence.
Expansion of the Implications of the Qur'anic Verses
The author's method in this section assumes that the qualities mentioned in the verses have a causal aspect for obedience, and as a result, he extracts a general ruling from them, determining that all mentioned verses include governmental rulings and social laws. On the other hand, he considers a contrary concept for the verses. Consequently, he infers from the expression "Follow the path of whoever turns back to Me" in Surah Luqman that if the ruler establishes a law contrary to Sharia or does not act according to Sharia, there is no obligation to obey (p. 118). The permissibility of disobedience in the first case is clear, but in the second case, where the ruler's behavior is merely contrary to Sharia, this verse cannot be cited as evidence. This is because the ruler's behavior is distinct from his commands and prohibitions. In the section on transmitted evidence for the permissibility of disobedience, one of the verses cited by the author is verses 107-108 of Surah Al-Shu'ara (p. 117), which state: “Indeed, I am a trustworthy messenger for you. So fear Allah and obey me.” The author interprets obedience in this verse as obedience in social and governmental matters, and he considers trustworthiness to be a quality that makes obedience necessary. However, it is not clear that the obedience referred to in this verse is specifically about governmental matters. It can be argued that the Prophet in this verse is emphasizing his trustworthiness in receiving and preserving revelation, essentially stating that what he conveys is not from himself. It remains uncertain whether from trustworthiness in revelation, which is a specific subject, we can conclude that revelation is not essential and that trustworthiness in other matters is also a criterion for obedience. Extending a specific ruling to a general one requires clearer evidence. The author concludes from verse 24 of Surah Al-Insan (“And be patient for the judgment of your Lord and do not obey the disbeliever or the sinner”) that non-obedience to a sinful and ungrateful person is relevant and unlikely to be specific to the Prophet. The question arises: if the opposing individuals were not sinful or ungrateful, could the Prophet have obeyed them? The main point of critique lies in the analytical method employed, which disregards all cues and the context of issuance or revelation, considering only the qualities mentioned in the text as conditions and then deriving implications from those conditions. This approach is not defensible. Furthermore, the interpretation of generality and absoluteness is based on preliminary assumptions that the author has not at least articulated.
Broader Interpretations of Narrations
From Imam Ali's (AS) letter to the people of Basra, it has been concluded that if a ruler issues a command contrary to Islamic law, the people have the right to remove him. The author's reference is that the Imam said to report to him so he could remove that ruler (p. 124). The question here is whether, if the Divine Law granted a right to the ruler, the people also possess that right. Additionally, if that ruler were infallible, would this right still extend to other rulers and, subsequently, to the general populace? In reality, the author has once again extrapolated a specific ruling, which could potentially be understood as particular, to a general case. For instance, he has applied the Sahihah of Safwan, which pertains to social relations among individuals, to relationships between rulers and the public (p. 127). In a footnote, the author cites narrations indicating that some decisions made by infallible rulers are subject to error (pp. 107-108); however, he later reasons that, since there is no potential for error in the rulings of the infallibles, disobedience in these cases is also impermissible. The author does not seem to recognize that the narrated texts explicitly affirm the occurrence of errors; thus, the maximum that can be accepted is the possibility of lacking error in such cases. Under the discussion of enjoining good and forbidding evil, the objective of forbidding evil has been defined as changing the behavior of culpable officials (p. 136). It appears that the goal of forbidding evil is not solely to change individuals but, primarily, to change unlawful laws and, at a higher level, to alter the practices of officials. If an individual is unwilling to change their practices, they should be dismissed.
Lack of Discussion on Authenticity
In referencing narrations, discussions regarding their authenticity are usually absent. While establishing the issuance of narrations is one of the cornerstones of citing them, the author neglects this discussion. For instance, this can be seen in the reference to the words of Amir al-Mu'minin (AS) on page 120. The author has cited a number of Sunni narrations from Allameh Amini's book "Al-Ghadir," which is not defensible for a study of this level (p. 148). Hadith should be referenced from primary sources. The author, at one point, attributes an objection to the third caliph regarding the consumption of game meat while in a state of ihram to Imam Ali (AS) (p. 160), and at another, he attributes it to Zubair (p. 162), citing each to a part of Allameh Amini's book "Al-Ghadir." However, this incident appears once in "Al-Ghadir," and it is narrated from Zubair.[1] Furthermore, in critiquing the Sunni theory of obedience to the ruler, the author solely mentions the issue of fabricated hadiths and, through the citation of two hadiths, declares them fabricated without providing any supporting evidence. Meanwhile, there are also figures in Sunni Islam who advocate for the dismissal or separation from a ruler in the case of their corruption. Moreover, Imam al-Haramayn al-Juwayni believes in rising up and armed conflict against a corrupt ruler.[2] On the other hand, individuals like Nawawi, the commentator of Sahih Muslim, attribute the non-permissibility of revolt to the occurrence of discord within society.[3]
With Viewing Legitimacy and Effectiveness
The unwritten premise of the book is that in a legitimate government, as long as the government fulfills its religious duties, it will be effective and citizens will receive their rights. However, we know that scholars have different interpretations and understandings, and the implementation of each scholar's opinions, as law in society will yield different results. This raises the question: if rulers act according to their understanding of the Sharia, but in practice, the government is ineffective, what is the position regarding citizens' right to disobedience? According to Sayyid Javad Vaei, an illegitimate government cannot have laws, regulations, policies or decisions that align with truth and justice. His reasoning is that such a government overlooks God's rights and the people's rights in determining their fate (p. 148). This argument is incomplete because an illegitimate ruler may have come to power with the support of the people, even if they are not authorized by God. Furthermore, there is no inherent connection between illegitimacy and ineffectiveness. The author connects all applications of divinity in the verses of the Quran to divinity itself and categorizes any obedience to individuals under the title of sovereignty. From here, he relates the concept of divinity to the discussion of civil disobedience (pp. 149-152). Such an analysis of concepts is unconvincing, as it is not the case that every instance of lordship in the verses of the Quran and hadiths refers to political and social sovereignty. The fact that the People of the Book have made their rabbis and monks their lords, as the narration of Imam Sadiq (AS) also indicates (p. 151), does not necessarily align with political obedience and may include personal legal matters of prohibited and permitted.
Ambiguity in Exceptions to the Right of Disobedience
Disruption of the system is one of the cases that negates the right to disobedience. However, on the other hand, justice precedes the preservation of the system. For this reason, the author finds it necessary that sometimes the social order should be disrupted to achieve justice. He cites examples like the uprising of Imam Hussein (AS) to support this claim (p. 186). The ambiguous concept of system disruption complicates the author's assertion. It seems that the author has considered any kind of disorder as system disruption. However, it appears that system disruption is a more complex issue than mere disorder, and the event of Ashura or even the occurrence of war does not equate to system disruption. Perhaps the months of conflict leading to the victory of the Islamic Revolution could be an example of system disruption. The author also fails to address the question of what should be done if protests and disobedience weaken sovereignty while the lack of protest solidifies tyranny. In fact, if maintaining sovereignty is accompanied by ongoing flaws and corruptions, which should take precedence?
Strengthening the State's Position in Controlling Disobedience
In Chapter Eight, the author assigns the responsibility of addressing disobedience claims to the state and overlooks civil institutions as well as international entities. It seems the author believes that either individuals must express their opinions or governmental institutions must do so, with no other assumption possible. The issue that complicates this section is the ambiguity in the concept of the state and the lack of clarity regarding the subject of hypothetical disobedience. It is not clear whether the state refers to the entire ruling system or just the government in the sense of the executive branch. Because if disobedience is against the executive branch, according to the theory of separation of powers, this duty could be assigned to other branches. However, if the intention is the entire sovereignty, it is unclear why the ruler should comment on the disobedient behavior of the people.
refrences
- Amini, Abdol Hossein, Al-Ghadir in Literature, Books, and Tradition, Qom, Al-Ghadir Center for Islamic Studies, 1416 AH.
- Taftazani, Sa'ad al-Din, Sharh al-Maqasid, edited by Abdul Rahman Amira, Beirut, Alim al-Kutub, 1409 AH.
- Nawawi, Yahya ibn Sharaf, Sharh Sahih al-Muslim, Dar al-Qalam, Beirut, n.d.
- Varaei, Sayyid Javad, A Juridical Study of Obedience and Civil Disobedience, Tehran, Samt Publications, 2015 SH