Iran: A case for legal evolution
By Kaveh L Afrasiabi
News that a high court in Iran has upheld the execution by stoning of a woman
in the southern city of Shiraz has added fuel to the ongoing debates and
controversies about this aspect of Islamic law, or sharia, which is integrated
into the legal rampart of the Islamic Republic of Iran.
This is one law that virtually no top official in the Iranian government has
been willing to publicly endorse and, in fact, several of them have been
forthcoming in distancing themselves from it.
Case in point, Justice Minister Gholam Hossein Elham, who is also a member of
the powerful Guardian Council, addressed the
issue during his recent trip to New York and insisted that there has not been
one case of stoning to death under the Mahmud Ahmadinejad administration.
Elham's comments came in response to a complaint by a compatriot who pointed at
a new Hollywood movie focused on the gruesome execution by stoning, saying such
propaganda exploits against Iran do considerable damage to the country's
prestige and in one strike wash out the massive efforts of the government to
present itself to the outside world as modern and rational, rather than
"savage" and "barbaric".
Agreeing with those complaints, Elham went on to say that the reason this
particular law has remained on paper and not implemented is that it does not
conform to the "national character" and the rich "cultural heritage" of Iran,
which is a cradle of civilization.
Thus the important question: if the government is averse toward this penal law
that is aptly exploited by Iran's wealth of enemies to target its legitimacy,
and if there is a systematic effort to ensure that it is not implemented, then
why doesn't the regime get rid of it?
The answer given by Elham to this question was that there is an effort in the
parliament (Majlis) to reconsider and revise the law, but that it would take a
long time to marshal the forces necessary for such a change. Also, Elham hinted
that a lot of what we hear about this matter happens in the provinces, where
the local powers that be implement the law.
True, it would be a mistake to blame the government for everything that happens
in Iranian society and such simplistic and reductionist analyses ignore the
complexities of law and order in today's Iran. Nonetheless, the fact is that
Iran enjoys a central government and is based not on a federal but rather a
centralized system of power that, at least theoretically, does not allow the
arbitrary interpretation of laws by local and provincial hands. That means the
central government and its judicial branch should exert more authority in this
matter and intervene by staying the execution of the condemned woman in Shiraz
and elsewhere in Iran.
Certainly, Elham has it in his power to do so and he would be doing the nation
a great service by intervening and exerting his weight and influence in a
highly controversial matter that simply does not help the internal and external
image of the post-revolutionary order by any standard. A stay of order by Elham
would go a long way in terms of restoring the damage to Iran's international
reputation; otherwise Tehran must be ready to receive the devastating blows of
being portrayed as a government akin to the Taliban.
That would be a pity, because Iran since the revolution of 1979 has come a long
way down the path of political pluralism, multi-party politics, electoral
politics, separation of powers, checks and balances, etc - a clear departure
from the previous ossified one-man dictatorship.
Historically, the pattern of evolution in Iran along republican and democratic
lines has continued in spite of the hardships of external war, internal
post-revolutionary turmoil and the abundance of post September 11, 2001,
national security threats.
This delicate process has had an experimental quality as well, testing the
mixture of contemporary wisdom of law with the old sharia, and cannot be
treated as a static process. Taking it to the next level of evolution without a
serious revision of those aspects of the penal law that seemingly vindicate
Iran's opponents and undermine the regime's efforts in building national
consensus is impossible.
Part of the problem here is the government's self-handicap in a restrictive
discourse that only feebly counters the dogmatists' argument that the penal law
sanctioning the execution by stoning of people accused of being adulterous is
purely Islamic. The problem with the latter argument is that it is bereft of a
dynamic interpretation of Islam and sharia, one that recognizes the importance
of making adjustments based on historical evolution.
After all, this is indeed how the abode of Islam has withstood the test of
time, by showing adaptability and flexibility and adjusting its norms and
values to the changing needs of the present, instead of relying on a
non-dynamic and static interpretation of the Holy Koran and the Prophetic
This is reflected today in progressive, ecological and feminist interpretations
of Islam and Shi'ism in particular, including the messianic Mahdism, as a
well-spring of a peaceful religious movement of thought based on the hopeful
expectation of the resurrection of the missing Imam, seen as a compass for
social justice on a global scale. 
Unfortunately, there are subsidiary forces in Iran who are averse to any
change, as if the Islamic Republic is closed to evolution in a landlocked
horizon. Such voices do more harm than good to the Islamic order that they
nominally support and yet, in the final analysis, undermine by resorting to
ossified, dogmatic and context-insensitive arguments and discourses that
overshadow the evolutionary logic of the mixed, theocratic republic.
However, in light of Iran's youthful majority population, the systemic
challenge of the Islamic Republic is precisely how to remain dynamic by
following its internal logic of evolution. Today, more than ever before, this
means closing the gap between the theory and practice of Iran's penal law, by
discarding the dreadful law on stoning to death, perhaps by a national
referendum if need be.
With sufficient boldness and bravery dictated by the nation's needs in today's
troubled times, when Iran faces mounting national security concerns and when
such an integrative initiative will create new bridges between the regime and
middle-class Iranians without incurring any costs to its legitimacy, Iran's top
officials can and should take the lead on this matter and bear the brunt of any
backlashes. They have history on their side and that is what counts most.
Kaveh L Afrasiabi, PhD, is the author of After Khomeini: New
Directions in Iran's Foreign Policy (Westview Press) . For his Wikipedia entry,
click here. His
Reading In Iran Foreign Policy After September 11 (BookSurge Publishing
, October 23, 2008) is now available.