The Democratic Fatwa: Islam and Democracy in the Realm of Constituti

* Professor of Law, New York University School of Law. A.B., Harvard University,

1992; D. Phil., Oxford University, 1994; J.D., Yale Law School, 1997. This lecture was
delivered on February 20, 2004 as the 2003-2004 Henry Lecture. Subsequently, parts were
incorporated in N

OAH

ELDMAN

HAT

RAQ

AR AND THE

THICS OF

ATION

UILDING

(2004) and are published here with the permission of Princeton University Press.

See

e.g.

, R

OTTAHEDEH

, T

ANTLE OF THE

ROPHET

ELIGION AND

OLITICS

RAN

(2000); Y

ITZHAK

AKASH

, T

‘

IS OF

RAQ

(1995).

Cf.

OAH

ELDMAN

FTER

IHAD

MERICA AND THE

TRUGGLE FOR

SLAMIC

EMOCRACY

(2004).

VOLUME 58

SPRING 2005

NUMBER 1

OKLAHOMA

LAW REVIEW

THE DEMOCRATIC FATWA: ISLAM AND

DEMOCRACY IN THE REALM OF CONSTITUTIONAL

POLITICS

OAH

ELDMAN

The relation between Islam and democracy has become one of the great

political questions of our age. But it is also a

legal

question, legal in the sense

that Muslim scholars have addressed it from the perspective of Islamic law, and
legal, too, in the sense that practical debates about it often take place in the
context of constitutional drafting and negotiation. The purpose of this short
essay is to consider one enormously influential, practically significant legal
document touching on this great question: the constitutional fatwa of Ayatollah
‘Ali Sistani, who is today a household name but was, before the late summer of
2003, almost unknown outside the circle of Shi‘i clerics and those who study
them.

Begin with a remarkable, little-noticed fact. Notwithstanding widespread

skepticism about whether they could accept democratic practices and
institutions, Iraq’s Shi‘i clerics who, in the pre-election period, spoke almost
exclusively for Iraq’s Shi‘i Muslims, were from the fall of Saddam the loudest
voices in the country calling for electoral democracy.

Most disclaimed an

interest in running the country along the lines of what they called the failed
Iranian model; but of course, as leaders of a majority, they called for elections

OKLAHOMA LAW REVIEW

[Vol. 58:000

3. Hamilton’s disclaimers of dominant presidential power in the Federalist papers come

to mind.

See

e.g.

, J

OHN

AMBERTON

ARPER

MERICAN

ACHIAVELLI

LEXANDER

AMILTON AND THE

RIGINS OF

U.S.

OREIGN

OLICY

(2004).

4. The importance of the

hawza

of Qom is far more recent, dating only to the 1920s and

the arrival of Abd al-Karim Ha’eri of Yazd.

See

OTTAHEDEH

supra

note 1, at

228-29.

to ensure that the Shi‘a would not be marginalized as they had been throughout
Iraqi political history. The Shi‘i politicians who seem to have been most
politically successful are Islamic democrats, men like Ibrahim Ja‘fari of the
Islamic Da‘wa Party, who profess the compatibility of Islam and democratic
rights and values. They did not call for theocracy, but for a limited
constitutional government that would protect individual rights and tolerate
religious difference. Whether in office they will make good on these promises
cannot be guaranteed; but as much might be said of any politician in a new
democracy whose institutions are not yet firmly established.

Ayatollah ‘Ali Sistani emerged as the most prominent spokesman for

electoral democracy in Iraq; and a glance at how he went from being a respected
cleric — known mostly for his view that mullahs should not intervene in politics
— to a sophisticated player conducting, in essence, multilateral negotiations
between himself, the Secretary General of the United Nations, and the President
of the United States, should reveal something about the prospects for democracy
in Iraq. His strategy from the outset was one of caution. With just two or three
extremely well-timed, carefully framed public statements in a period of six
months, he created the impression of capturing the allegiance of millions of
Shi‘a, and as a result managed to become a figure whom no one could afford
to ignore, and who played the most significant individual role in Iraqi politics
during the period of occupation.

When Saddam fell, Sistani was first among equals in the leadership of the

hawza

of Najaf, a kind of commission of roughly a thousand Shi‘i clerics who

gain their authority over the community’s religious affairs through advanced
Islamic legal study and personal piety. There is no obvious or easy analogy for
the

hawza

, which lacks the wealth or global reach of the Holy See; but perhaps

it could be said that the

hawza

is a mix between the Roman curia and a

distinguished faculty of arts and sciences in a major research university. Najaf
competes with Qom for influence in the Shi‘a world, and the status of the
thousand-year-old

hawza

of Najaf is closely connected to this competition.

Advancement within the clerical hierarchy is not based on constituencies that

are easily transferable into broader political power. If it were, it would have
been very difficult for Sistani, an Iranian by birth, to reach its apex. Sistani’s
Persian-accented Arabic was not suitable for rousing Iraqi audiences — and let
us recall that Iraq’s Shi‘is fought for Iraq, not Iran, during the bitter war

2005]

THE DEMOCRATIC FATWA

See

Nicholas Blanford,

Iraqi Force Elicits Hope – And Fear

, C

HRISTIAN

ONITOR

, Dec. 9, 2003 (estimating militia membership).

6. It is sometimes said that Bakr al-Hakim was affiliated with the reformist wing of the

between the two countries. Nor was Sistani exceptional in being a foreigner
who rose within the

hawza

: of the four senior members at the time Saddam fell,

there was also an Afghani and a Pakistani. So while the

hawza

certainly has its

own complex internal politics, which exist in some relation to the broader Shi‘a
community, Sistani’s political experience was not of the national or
international variety. The only politics with which he had any experience was
the small-group variety, in which representativeness counted for little, but
intelligence, judgment, and getting things right counted for a lot.

Acting through intermediaries, the United States after toppling Saddam

initially sought a statement from Sistani calling for cooperation with occupation
forces. Sistani declined even to meet with U.S. officials, citing his traditional
practice and widely recognized view that clerics should stay out of politics. He
made it clear, however, that he also would not condemn the occupation. For a
man who had survived Saddam’s régime — more activist Shi‘i clerics had not
— this was simply prudence and a continuation of his previous strategy. It is
possible that Sistani read the American request as a sign that Shi‘a power was
going to grow under U.S. occupation. Certainly Saddam had never demanded
or asked for Sistani’s blessing; doing so would have implicitly acknowledged
some need for legitimation from outside the state structure, a sure sign of
political weakness. But in any case, Sistani cautiously adopted a strategy of
wait-and-see, and the Americans had to be satisfied with that, even though it fell
short of the endorsement they sought.

At the same time he was declining to take a stand on national politics, Sistani

had to fend off challenges to the authority of the

hawza

coming from two

different directions. The more serious threat, from Sistani’s perspective, came
from Ayatollah Muhammad Bakr al-Hakim, who had spent the previous decade
in Iran as the leader of an exiled political organization with the threatening
name of Supreme Council for Islamic Revolution in Iraq (SCIRI), often referred
to by the first word of its Arabic name as “the

majlis

,” meaning council. The

majlis

was an Iranian creation with its own militia, the Badr Brigades, some

10,000 strong.

Muhammad Bakr al-Hakim was a certified scholar, an

ayatollah himself, even if not quite in Sistani’s league. But he was primarily a
professional politician, which Sistani assuredly was not. Bakr al-Hakim was
tempered by the long experience of seeking support in the backrooms of Iranian
politics, an environment of mind-boggling complexity where the mullahs and the
government were profoundly interlocked, and Iraqi affairs were pieces in a
game that would make chess look simple.

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[Vol. 58:000

Iranian clerical hierarchy and with President Mohammed Khatami. Bakr al-Hakim, however,
was skilled enough as a politician to broaden his support beyond this reformist base.

See

Neil MacFarquhar & Richard A. Oppel Jr.,

Attack at Shrine: Car Bomb in Iraq

Kills 95 at Shiite Mosque

, N.Y.

IMES

, Aug. 30, 2003, at A1.

8. Thus even al-Qa‘ida, which considers Shi‘i Muslims as unbelievers, disclaimed

responsibility for the March 2004 bombings of Shi‘a shrines in Kadhimiyya and Karbala on
the holiday of ‘Ashura. Al-Qa‘ida is always attuned to its Arab and Muslim audiences, who
are less prepared to tolerate attacks on praying Muslims of whatever denomination.

In May 2003, Bakr al-Hakim staged a triumphant return to Iraq and

thousands of Shi‘a turned out to escort him from the border to the holy cities of
Najaf and Karbala. The

majlis

had been active in exile politics and in close

contact with the United States. After some hesitation, the

majlis

chose to join

the Governing Council, cementing those relations further and presenting itself
to the Coalition as the true representative of Iraqi Shi‘a. Simply by returning
home, Bakr al-Hakim bid fair to become the major clerical figure in the country.

Sistani avoided direct confrontation. His supporters quietly emphasized the

superiority of his scholarship and his apolitical stance. Then in August 2003
Bakr al-Hakim was assassinated by a car bomb as he left the shrine of Imam
‘Ali in Najaf.

The attack seemed to have come from Sunni quarters — it was

unlikely that Shi‘a would have profaned the holiest spot for their denomination,
killing as many as one hundred bystanders in the process.

Bakr al-Hakim’s

death left his academically undistinguished younger brother, ‘Abdul ‘Aziz, as
the head of the

majlis

, and thereby effectively removed the

majlis

as a threat to

Sistani’s authority. ‘Abdul ‘Aziz, who was not an ayatollah himself, had to
defer to Sistani to maintain clerical legitimacy. Sistani’s political prominence,
then, was in part accidental; he might never have gained the influence that he
did if Ayatollah Muhammad Bakr al-Hakim had remained alive.

That left only the young mullah Muqtada al-Sadr to challenge the

hawza

. To

Western eyes, Muqtada was a revolutionary straight from central casting. Son
of the martyred Grand Ayatollah whom Sistani had succeeded, he called loudly
for clerical rule on the Iranian model, and very quickly became popular in the
poorest Shi‘a slums of Baghdad. Just thirty-two himself, and surrounded by a
group of angry and ambitious young clerics, Muqtada aimed to put the fear of
God into the local population by spreading the warning that women without
head scarves, sellers of alcohol, and cinema operators would be severely
punished by vigilantes. Muqtada denounced the occupation from its outset, and
even went so far at one point as to announce, rather optimistically, the creation
of his own government.

Despite growing concern about Muqtada within the Coalition Provisional

Authority (CPA), Sistani remained unfazed, adopting a strategy of ignoring the

2005]

THE DEMOCRATIC FATWA

9. Muqtada occasionally sought to deepen his institutional position by claiming the

support of Ayatollah Kazem Husayn al-Ha’eri, resident during the occupation and for the years
before it in Qom. Ha’eri had studied with Muqtada’s late father, and himself had pretensions
to clerical authority in Iraq; his relationship to Muqtada was therefore itself complex.

10.

See

Robert Collier,

U.S. Risks Turning Shiite Cleric into Contender: No Good

Alternatives in Dealing with Firebrand al-Sadr or His Army

, S.F.

HRON

., Apr. 12, 2004, at

A11 (discussing Muqtada’s popularity).

upstart while emphasizing to his own community that Shi‘a clerical authority
could be exercised only by permission of the

hawza

. When Muqtada’s

followers tried to set up their own courts in the chaos of the postwar months,
Sistani’s supporters spread the word to the Shi‘a community that these were
unauthorized and illegitimate. This was a classic defense by institutional
authority against incipient charismatic appeal.

Sistani’s strategy worked — and for a time, the CPA played along, declining

to arrest Muqtada despite his provocations. By autumn 2003, Muqtada seemed
to have faded. His resurgence in spring 2004 was largely a product of the
botched CPA attempt to close his newspaper and arrest him, both of which
reestablished his fading credibility.

His small militia enhanced its prestige by

a series of takeovers of police stations and municipal buildings in southern Iraq.
This mini-insurgency required Sistani, working through intermediaries, to
undertake to negotiate their withdrawal, which could only be accomplished at
the cost of giving some recognition to Muqtada; despite this, Sistani remained
the more important power player. In autumn 2004 the entire episode was to be
replayed after Muqtada’s militia, the Mahdi Army, occupied the Shrine of
Imam ‘Ali in Najaf; once again, Sistani’s intervention would be instrumental in
negotiating their withdrawal.

Sistani’s first and critical political move, though, had come earlier in the

summer of 2003. In a one-paragraph fatwa, he reacted to reports, which turned
out to be accurate, that the CPA planned for the Iraqi constitution to be drafted
by a constitutional drafting body, chosen by a selection process and not by
direct elections. The fatwa — the equivalent of an opinion letter in
contemporary U.S. legal terms — deserves quotation in full. The English text
reads, in Sistani’s approved translation:

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[Vol. 58:000

11. The Reply by Grand Ayatullah Sayyid Ali Al-Hussaini Al-Sistani in response to an

inquiry made by a group of Iraqi people regarding the preparation of the next Iraqi constitution,
June 26, 2003,

http://www.sistani.org/messages/eng/ir5.htm.

In the Name of The Almighty
Those forces have no jurisdiction whatsoever to appoint members of
the Constitution preparation assembly. Also there is no guarantee
either that this assembly will prepare a constitution that serves the
best interests of the Iraqi people or express their national identity
whose backbone is sound Islamic religion and noble social values.
The said plan is unacceptable from the outset. First of all there
must be a general election so that every Iraqi citizen — who is
eligible to vote — can choose someone to represent him in a
foundational Constitution preparation assembly. Then the drafted
Constitution can be put to a referendum. All believers must insist
on the accomplishment of this crucial matter and contribute to
achieving it in the best way possible.
May Allah The Blessed Almighty, guide everyone to that which is
good and beneficial.
Wassalamu alaikum warahmatullah wabarakatuh
(Peace and Allah’s love and blessings be upon you)
Signed & Sealed
Ali Al-Hussaini Al-Seestani
25 Rabiul-Akhar 1424
26 June 2003

The fatwa was pure democratic theory, with nary a reference to Islamic legal

texts. Sistani was exercising the distinctive authority of the Shi‘i jurisprude to
formulate a legal argument based on the exercise of his own reason. It said
simply that “those forces” — the Coalition, named by a circumlocution — had
no authority to write a constitution for Iraq. According to the document, there
must be elections for the constitution-drafting body, so that the constitution
would reflect the social values and religious beliefs of the Iraqi people.
Couched thus generally, the fatwa was designed to appeal not only to religiously
observant Shi‘is but to all Iraqis. Its conclusion and its reasoning were
essentially indistinguishable from those of any competent international lawyer.
Indeed, within the CPA, such views had been privately expressed by
international lawyers from a variety of countries, experienced in nation-building
elsewhere, who assumed the Iraqi constitution could only be written by an

2005]

THE DEMOCRATIC FATWA

12. For more information on the plan for Iraq’s constitution, see, for example, Pamela

Hess,

Iraqi Sovereignty on Ambitious Schedule

, U

NITED

RESS

’

, Nov. 17, 2003; Tod

Robberson,

Iraqis Ready for Results: Many Growing Cynical of American Pledge to Usher in

Democracy

, D

ALLAS

ORNING

EWS

, Nov. 30, 2003, at 1A.

elected constituent assembly, and were appalled by any suggestions to the
contrary.

The document represented, then, an epochal event in the annals of the

interaction between Islam and democracy: an unelected cleric laying down the
law to the United States, holding that legitimate constitutional processes
required democratic underpinnings. The irony that it was a religious scholar
standing up for democratic process — and using his religious authority to do
so — should not be lost on us. But neither should we miss the deeper irony that
it was the democracy-exporting United States that was being reminded of the
undemocratic character of its plans for the Iraqi constitutional process. Far
from resisting U.S. pressure to democratize, Sistani was telling the Coalition
how democracy ought to work.

It took some time for the impact of the fatwa to be fully felt by the CPA,

which had charged the unelected Iraqi Governing Council to create a
preparatory committee to investigate the possibilities of forming a constitution-
drafting body. The preparatory committee found itself completely constrained
by the legal logic of the fatwa. Although no state apparatus was prepared to
enforce Sistani’s ruling, that did not prevent it from having the effective force
of law, not only for the committee’s Shi‘is but for all. Twenty-four of its
twenty-five members eventually traveled en masse to Najaf for an audience with
Sistani. They left unanimous in their certainty that his argument could not be
refuted. The preparatory committee then dissolved without reporting back to
the Governing Council. Sistani was now dictating policy.

In part as a reaction to the Governing Council’s inability to recommend a

strategy for constitution-writing without elections, Washington, acting through
the CPA, changed course. In November 2003 it proposed that, to satisfy
Sistani, the constitution would indeed eventually be written by an elected
constituent assembly. In the time it would take for that to happen, the country
would be governed, starting on June 30, 2004, by a transitional national
assembly to be selected by caucuses, rather than direct elections.

This plan

appeared to satisfy the letter of Sistani’s fatwa, but entirely missed the spirit,
which was for electoral democracy, not appointed rulers. In late 2003, a month
after the CPA and the Governing Council had formally agreed to this two-tiered
plan, Sistani made a statement expressing his disapproval of any process other
than elections to choose even the interim government. He left open the
possibility that elections by June 30, 2004, might not be possible — and his

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13. S i s t a n i ’ s o f f i c i a l s t a t e m e n t s a r e a v a i l a b l e a t

http://www.sistani.org/messages/eng/index. php (last visited Apr. 15, 2005).

14.

See

Sonni Efron & Alissa J. Rubin,

U.S. Asks U.N. to Go to Iraq, Assess Feasibility

of Vote; Annan Will Consider It. Tens of Thousands March in Baghdad for Direct Elections

L.A.

IMES

, Jan. 20, 2004, at A1.

staff indicated that the views of the Secretary General on this question would
be appreciated.

That sent Ambassador Bremer back to Washington, and on

to Turtle Bay, accompanied by nine members of the Governing Council to meet
with Kofi Annan. Ayatollah Sistani had done what Tony Blair could not: he
had brought the United States to the U.N., hat in hand, seeking its involvement
in nation-building in Iraq.

How did Sistani do it? He combined a preexistent institutional authority with

a single, simple, and easily defended demand: if this is to be a democracy, where
are the elections? It was almost unnecessary for Sistani’s supporters to stage
a 100,000-person march in Baghdad, as they did in late January 2004,

underscore the point that the overwhelming majority of Iraqi Shi‘a — and not
a few Sunnis — could agree that Iraqis want to choose their own leaders, rather
than have leaders thrust upon them by some indirect process in which the United
States would have disproportionate control.

Sistani also took his time. Almost every other would-be politician in Iraq,

whether returning exile or domestically grown, moved too fast, too aggressively,
trying to gain a foothold in the postwar environment. The politicians’ belief,
plausibly enough, was that it was now or never: almost no new political figure
in Iraq had any name recognition. As a consequence of thrusting themselves
forward, most of the aspiring Iraqi political class succeeded only in revealing
the impossibility of jumping from political unknown to mobilizer of large
constituencies. Political power in Iraq, as anywhere else, must be built one step
at a time, according to the rules of the local game. There are no shortcuts, or
at least none that are obvious. The overambitious attempts of the returnee
politicians seemed particularly ineffective because they were closely connected
to the wavering and unstable policies for the transfer of power proposed by the
CPA.

In Iraq’s extraordinary preconstitutional moment, Sistani was prepared to put

aside his traditional political quiescence — the habit and practice of a lifetime.
But knowing that his influence derived from being above ordinary politics, and
careful not to lower his stature, Sistani tread gingerly when it came to particular
political problems. In the negotiations leading to the Transitional
Administrative Law (TAL), Sistani focused once again on high-level principles
of majoritarianism, challenging the proposal of a minority regional veto of a
final constitution, then grudgingly agreeing to the provision appearing in the

2005]

THE DEMOCRATIC FATWA

15. S.C. Res. 1546, U.N. SCOR, U.N. Doc. S/Res/1546/Supplements (2004),

available

http://daccessdds.un.org/doc/UNDOC/GEN/N04/381/16/PDF/N0438116.pdf?OpenElement.

U.N. Security Council Resolution 1546 makes no mention of the TAL, and indeed, as a result,
the TAL operates only on the basis of a gentlemen’s agreement among the members of the
transitional government.

Id.

16.

Id.

at 3.

TAL subject to subsequent renegotiation. Ultimately, Sistani urged the Security
Council not to endorse the TAL in the resolution legitimating the transitional
government, and his view proved decisive.

By so doing, he vindicated the

legal position of the fatwa. No agreement reached by unelected constitution-
drafters would bind the elected constituent assembly. Apparently Sistani
respected the legal authority of a Security Council resolution sufficiently to be
concerned that if such a resolution were to endorse the TAL, its provisions
might indeed have been binding on a subsequent assembly despite its lack of a
democratic pedigree.

In the final analysis, the Shi‘a will inevitably be a majority in a democratic

Iraq. Although elections may be vulnerable to terrorist attack, they will have
to happen sometime. So Sistani, one can predict with confidence, will get his
way. Eventually there will be national elections for a transitional government
in Iraq.

The really difficult and important question is what will happen once

elections for the transitional government and constituent assembly occur. What
sort of government and institutions will emerge? Do they have a chance of
becoming durable? These problems will be with us for years to come. But we
would do well to recognize that legal reasoning will play its part in their
resolution — and that Islamic law and legal institutions may do as much, or
more, to facilitate democratic thinking and outcomes as any other force.