Iran’S “NEW CONSTITUTIONALISM”: CONSTITUTIONAL POLITICS IN POST-REVOLUTIONARY IRAN

Kambiz Behi, Harvard University

Abstract

This Article argues that the Iranian constitutional system, although distinctive in application and in jurisprudence, is structurally and functionally similar to a set of rapidly globalizing forms of constitutional arrangement. These similarities include legal institutions, forms of legal thought, and methods of jurisprudence. In particular, I argue that the post-1989 constitutional reforms in Iran incorporate a globalizing constitutional mode of legal arrangement marked by proportionality analysis and judicial interventionism at the expense of representative politics. The Article departs from popular, but trite conceptual frameworks of secularization or separation of church and state used in analyzing Islamic legal systems, and instead takes a Critical approach by considering constitutionalism in terms of changing practices of governmentality and exercises of state power. It concludes by illustrating how Islamic legal precepts, formerly organized under the exclusive domain of private law, have been incorporated and redefined within public constitutional law in the post-revolutionary era in Iran. The recalibration of Islamic private law vis-à-vis Iranian public law transformed the formalist tendencies in classical Islamic jurisprudence, at least partially, to a supreme form of legal instrumentalism. Finally, this Article makes a contribution to the methodology of legal analysis by applying a Critical approach to the study of a non-western legal structure and its processes of constitutional change.