Between July 2000 and 2001, sixteen women were tragically murdered in Mashhad, the holiest city in Iran, a series of crimes infamously dubbed the “spider killings” by the media. What connected these killings? With the exception of one victim, all had previously been incarcerated on charges related to prostitution or drug offenses. This fact alone made them very vulnerable to such a predator because prostitution is a crime in Iran, leaving these women without legal recourse against harassment. Saeed Hanaei, a religious zealot, proudly confessed to these crimes upon his arrest in July 2001, justifying his actions as purification in accordance with Islamic teachings. Despite the abhorrence of his deeds, Hanaei's beliefs echo certain aspects of religious law, which lack clear statutory definitions. According to the Iranian Islamic Penal Code, individuals who commit certain gravely serious religious transgressions are designated as wasted blood (mahdur al-dam), subjecting them to the penalty of death, albeit without specific legal delineations. Throughout his trial, Hanaei steadfastly asserted that each victim fell into this category of “wasted blood.”Footnote 1 In other words, he claimed to have acted in the spirit of Islamic law. Hanaei was ultimately convicted; his assertions of religious duty were dismissed by the presiding judge, who stated that “his convictions cannot justify his illegal activities.” Interestingly, the judge turned a blind eye to the potentially exonerative second note of Article 295 of the Islamic Penal Code of 1991, which technically would have spared Hanaei from a death sentence.Footnote 2 It seems likely that the judge was swayed by the public outcry and national unrest. Alternatively, he may have been concerned that an acquittal would attract attention from national or even international media, highlighting the wasted blood law rooted in Shiʿi jurisprudence that permits exoneration. In either scenario, the judge faced a dilemma: balancing shariʿa standards with state interests, ultimately necessitating a compromise.
For many readers, the Hanaei case may present the first exposure to an instance in which the state's interests take precedence over a shariʿa ruling within the Iranian Shiʿi theocracy, illustrating the subordination of shariʿa to the principle of maslahat (variously translated as “public good” or “the interests of the state” as will be illucidated fully further in later sections). This case, however, is not unique; since the establishment of the Shiʿi theocratic state in 1979, Iranian authorities have occasionally prioritized maslahat over shariʿa rulings. Indeed, the growing integration of state interests into legal and political discourse has been a prominent theme in postrevolutionary scholarly literature. This shift is what Shiʿi reformer Mohsen Kadivar identifies as “a transition from a traditional approach to religion to an approach towards end-oriented Islam.”Footnote 3 This evolving perspective stands in stark contrast to the traditional approach, which seeks to preserve the culture, exigencies, and specific circumstances of the age of revelation as fixed and immutable ideals within Islamic thought, reflecting a retrospective utopia.Footnote 4 An oft-quoted hadith of Imam Sadiq, frequently cited by traditionalists to substantiate this approach, is worth mentioning here: “Whatever was made lawful by Muhammad shall remain lawful until the Day of Resurrection, and whatever was made unlawful by him shall remain unlawful until the Day of Resurrection.”Footnote 5
This article investigates the theoretical evolution of the concept of maslahat beginning with the establishment of the Islamic Republic of Iran (IRI), a period that witnessed a profound shift from its traditional, religious interpretation to its integration within the framework of sociolegal realpolitik. This exploration not only traces the conceptual development of maslahat but also lays the theoretical groundwork for the primary contributions this study offers to the underexplored body of scholarship on the topic. These contributions include: (a) a thorough examination of the theological and jurisprudential arguments both supporting and challenging maslahat within the context of contemporary intra-Shiʿi debates; (b) in-depth critical case studies illustrating how state officials operationalize maslahat in practice; (c) a critical reconstruction of the role of maslahat in specific policy areas; and (d) an assessment of how the misapplication of maslahat has led to the implementation of stringent (penal) policies and undesirable outcomes.
It is important to note, however, that the scope of this article does not permit a comprehensive exploration of the broader systemic developments in Iranian maslahat-based legal reform; such an undertaking is neither intended nor feasible within the constraints of this paper. Instead, the article focuses specifically on the most significant and relevant political and legal developments linked to the concept of maslahat.Footnote 6
Reconceiving maslahat: evolving perspectives in the modern context
In Farsi legal-political literature, the term “interests of the state” is often referred to as maslahat-e nezām or simply maslahat, diverging significantly from its historical usage in Sunni substantive law (fiqh), notably expounded by theorists like al-Ghazali and al-Shatibi.Footnote 7 In the context of Shiʿi theocracy, maslahat differs from its narrow, traditional usage in classical juristic treatises. In the framework of theoretical jurisprudence (uṣūl al-fiqh), classical jurists and judges applied maslahat in a technical and structured manner, drawing on scriptures, jurisprudential principles (such as qiyas in Sunni and tarjīḥ, or preponderance in Shiʿi legal traditions), and established canons. This allowed them to use maslahat as a means of addressing issues arising from the rigid application of doctrinal principles enshrined in classical legal texts, as well as resolving conflicts that emerged when competing legal norms came into tension or in cases in which there was no explicit divine text (naṣṣ).Footnote 8 Moreover, the application of maslahat by classical jurists was predominantly confined to issues pertaining to transactions (mu'āmalāt) and discretionary punishments (ta'zir). Its scope was largely restricted to particular cases, often at an individual level, and applied on an ad hoc basis, rather than extending to broader societal or systemic concerns.Footnote 9 In applying maslahat, some jurists took into account several key criteria: its consistency with the Qurʾan; its alignment with the Sunna; its compatibility with the broader objectives of shariʿa (maqāṣid al-sharīʿa); the presence of necessity; and the universality and definitiveness of the benefit it purports to achieve.Footnote 10
One notable example of the application of maslahat is found in Malik B. Anas's approach to a case involving a partnership for extracting oil from seeds, which seemingly violated the prohibition on ribā al-faḍl (unequal exchange). Given that the oil yield from different seeds varied, one partner might receive more oil than their share of seeds, creating an unequal exchange. Although such disparities were generally discouraged, Malik permitted the practice, reasoning that it was essential for the well-being of the community and could not be avoided. This case demonstrates how Malik utilized maslahat to prioritize the public interest over rigid adherence to legal prohibitions.Footnote 11 Another example is Shaykh Tusi's perspective on maslahat in relation to property. He argued that “whenever a person pledges their date palm tree as collateral and wishes to carry out the fertilization process at the appropriate time, the individual who holds the pledge has no right to prevent them, as this action serves the maslahat of their property.”Footnote 12 As these examples demonstrate, both Malik and Tusi applied maslahat at a microlevel, addressing the immediate, practical needs of individuals rather than broader societal concerns.
However, with the emergence of modern nation–state, “many Muslim modernists deploy conceptions of maslahat and maqāṣid, either to call for restricting the scope of historical legal doctrines, suspending their application, or repealing them in their entirety” (macrolevel).Footnote 13 Seen in this light, maslahat in the modern context is no longer applied in the specific manner once employed by premodern jurists. Whereas maslahat once carried a more precise and circumscribed meaning and application in premodern contexts, it is now invoked in a more expansive manner, frequently serving as a tool for utilitarian justification. This is why some modern scholars of Islamic law, such as Wael Hallaq, have been dismissive of modernist appeals to maslahat, suggesting that they have taken an otherwise marginal doctrine in Islamic jurisprudence and given it pride of place, with the result being a kind of religious utilitarianism.Footnote 14
Given this evolution, this article adopts the contemporary interpretation and application of maslahat, particularly within the context of Iranian legal and political discourse. I employ maslahat as a flexible and pragmatic concept designed to address contemporary social and legal challenges. This approach aligns with the broader, utilitarian understanding of maslahat in modern Islamic thought, in which it functions as a guiding principle for reconciling the common good with societal needs, particularly in the context of shifting legal and political landscapes.
In the modern Iranian context, the concept of maslahat, which has evolved significantly from its classical origins, now plays a critical role in the strategic decision-making processes of state authorities. It is increasingly invoked to justify the modification, suspension, or selective application of shariʿa principles, often for pragmatic reasons related to statecraft (raison d'état). This contemporary understanding of maslahat serves as a tool for the preservation and consolidation of Shiʿi theocracy, ensuring that the state remains resilient and unified in the face of internal and external challenges. What is crucial to note in this context is that the invocation of maslahat is intricately linked to the preservation of the theocratic state and its institutions. It functions as a justification for the suspension or modification of certain religious laws and policies that, if strictly enforced, could potentially weaken the authority of Islam or undermine the stability of the theocratic state. In this regard, maslahat is not merely a jurisprudential (fiqhi) tool, but a protective mechanism safeguarding the state's religious and political integrity, ensuring that both Islam and the theocratic order are shielded from internal or external forces that could destabilize their foundational principles.
In the context of Shiʿi theocracy, when laws and policies are reformed in ways that appear to override or contradict traditional shariʿa norms, the concept of maslahat becomes the sole legitimate justification for such deviations. Even when maslahat is not explicitly referenced as the basis for a legal reform or amendment, it remains the underlying rationale. As we shall see, this is particularly evident when long-established shariʿa provisions, whether civil or criminal, are altered or updated. In such cases, maslahat acts as the legitimizing force for these changes, even if there is no direct mention of it in parliamentary debates or official documents. Although international obligations and domestic demands undeniably exert pressure on authorities to pursue reforms, such changes are ultimately channeled through the principle of maslahat within the framework of Shiʿi theocracy. The principle of maslahat is particularly justified by its role in safeguarding the Shiʿi theocratic state (hefz-e nezām) and protecting the religion from defamation, both of which were central tenets emphasized by Ayatollah Khomeini.
Pro-maslahat theocrats argue that maslahat-oriented legislation and policymaking align with broader Shiʿi religiopolitical principles.Footnote 15 Within the jurisdiction and ambit of Shiʿi theocracy, maslahat extends beyond the traditional preservation of the five necessities of human existence as outlined by al-Ghazali—religion, human life, intellectual faculties, progeny, and property—to address pragmatic sociopolitical considerations relevant to urgent national and international concerns. Unlike in the premodern period, maslahat under Shiʿi theocracy no longer serves as a concrete criterion for adjudicating individual cases, but is instead applied within overarching principles that govern an entire polity. As we shall see, the extensive integration of maslahat into the framework of public law is largely attributed to the founder of the Islamic Republic, Ayatollah Khomeini.Footnote 16
Furthermore, in the context of Shiʿi theocracy, maslahat transcends its traditional role as a legal principle, evolving into an ideological framework that shapes both state action and policy. This represents a departure from the premodern era, when the compatibility of rulings or actions with maslahat was primarily determined by individual jurists.Footnote 17 This paradigm shift underscores the modern nation–state's authority in religiolegal affairs and its exclusive role in addressing sociopolitical challenges. Within Shiʿi theocracy, time-sensitive and expansive understanding of maslahat allows for justification of state policies and actions based on perceived public interests, even if such policies and actions may be viewed as anti-Islamic by traditionalists. This pragmatism seeks to adapt shariʿa rulings to contemporary needs, encompassing economic practices (such as interest on loans and insurance policies) and contemporary perspectives on family, women, morality, punishment, and other related issues.Footnote 18
Since the establishment of the IRI, governmental bodies within the Shiʿi theocratic system have consistently invoked maslahat, with its fundamental authority traced back to a pivotal statement by Ayatollah Khomeini: [The Islamic state] “is a branch of the absolute trusteeship of the Prophet … and constitutes one of the primary ordinances of Islam which has precedence over all other derived ordinances such as prayer, fasting and pilgrimage.”Footnote 19 As Sami Zubaida observes, this declaration was widely interpreted as a reinforcement of governmental and parliamentary power, positioning it against the Council of Guardians, which had often obstructed decisions on the grounds of shariʿa law.Footnote 20
This declaration confers upon the ruler the authority to suspend all derived ordinances (ahkām-e farʿyeh) in the interests of the country and Islam. The approach empowers the government to prioritize reason of state and contemporary demands over shariʿa requirements. As explored later, maslahat has been formally institutionalized within the framework of the Islamic Republic through the establishment of the Expediency Council (Majma‘-e Tashkhīs-e Maṣlaḥat-e Nezām), an authoritative body tasked with determining the public interest and resolving legislative impasses.Footnote 21
The concept of maslahat has also ignited significant discourse within intellectual circles, giving rise to three primary domains: political-legal maslahat, philosophical maslahat, and theological maslahat.Footnote 22 Among these, political-legal maslahat has garnered the greatest attention from both scholars and authorities. This focus reflects the imperative to address challenges in applying shariʿa in contemporary Iran, where judicial and political practitioners grapple with complexities in integrating Islamic law with modern legal frameworks. These challenges encompass potential conflicts with universal human rights standards, particularly concerning gender equality, freedom of religion, and sexual autonomy. Moreover, it is recognized that traditional Islamic economic principles may come into conflict with contemporary economic systems, particularly in areas such as banking, finance, and commerce. To tackle these challenges, theocrats have developed a series of maslahat-based strategies, including legislative reforms, judicial measures, and political stratagems aimed at addressing contemporary issues and ensuring the well-being of communities while maintaining the theocratic state's integrity.
This introductory overview of the role of maslahat in contemporary Shiʿi theocracy raises several critical questions: Do all contemporary Iranian Shiʿi jurists universally recognize the religious validity (mashruʿiyat) of maslahat from a doctrinal jurisprudential standpoint? What mechanisms govern the application of maslahat within the legal framework of the IRI? And what are the key examples that demonstrate the use of maslahat in shaping legislative and policy decisions in recent decades? This article seeks to critically examine these questions.
Maslahat in contemporary vibrant intra-shiʿi debates
In English academic literature, various terms such as “public interest,” “social good,” and “common good” have been utilized as equivalents for the Arabic term maslahat. Generally, maslahat involves the consideration of societal welfare and the promotion of community benefit. Although these translations capture aspects of maslahat, its scope extends beyond them.Footnote 23 Therefore, some scholars prefer to retain its Arabic linguistic form, abstaining from translation into English to uphold its conceptual complexity. The conceptual complexity surrounding maslahat may arise from subtle (albeit not profoundly significant) variations in its interpretation. A review of Iranian literature on the term reveals that its application is not uniform, with different users ascribing distinct meanings and intentions to the concept. An essential point to note is that, when employed by Shiʿi theocrats, the elusive concept of maslahat primarily denotes the “interests of the state.” However, it is often conflated, and at times used interchangeably, with the “interests of Islam” and “interests of the community [or country].” Indeed, Ayatollah Khomeini and others have employed these three definitions interchangeably. Given this overlap, I prefer to employ the term maslahat as an inclusive category, capable of encompassing all three notions, of state, religious, and national interests.
An analysis of the available Farsi literature on maslahat indicates that the treatment of maslahat by jurists and legal scholars in Shiʿism reflects pragmatism in addressing contemporary needs. Progressive Shiʿi jurists consider maslahat a practical and “cogent interpretive device in inferring fresh legal rulings based on pragmatic considerations and the sociopolitical needs of a modern Islamic state.”Footnote 24 A thorough examination of Farsi writings on maslahat indicates a dichotomy within the vibrant intra-Shiʿi debate: pro-maslahat and anti-maslahat jurists. Both groups present compelling arguments, which I delve into in the subsequent sections.
Anti-maslahat jurisprudential arguments
As we noted earlier, governmental bodies of the IRI have occasionally invoked maslahat. However, although the de facto recognition of maslahat as a method for legal adaptation and evolution is evident, its de jure acceptance among Shiʿi jurists is not unanimously acknowledged. The ongoing intra-Shiʿi debate reveals a longstanding judicial tradition within Shiʿism that often rejects maslahat.Footnote 25 Even some prominent contemporary Shiʿi jurists exhibit reservations, indicating a lack of full reconciliation with maslahat in Shiʿi jurisprudence. Despite scholarly discourse advocating maslahat-driven legal reforms to address modern social norms and international pressures, the utilization of maslahat has encountered resistance, particularly from conservative and orthodox clerics, who believe that a theocracy that marries the spirit of the age will be a widower in the next.Footnote 26
In theory, the invocation of maslahat has elicited critical attacks from past-idealizing traditionalists such as ayatollahs Khatami, Golpaygani, Emami Kashani, and Yazdi, who perceive it as a form of political expediency compromising shariʿa ideals. These critics argue that decisions concerning the public interest ought to be grounded in perspicuous evidence derived from Shiʿi canonical sources. Maslahat is a hermeneutical principle lacking textual basis as an independent source of law and is only invoked in exceptional circumstances.Footnote 27 As a result, judgments based on maslahat are speculative and potentially arbitrary, influenced by the subjective perspectives and preferences of individual jurists, and may not accurately reflect divine intent.Footnote 28
In Maslahat dar Fiqh-e Shiʿi va Sunni (Maslahat in Shiʿi and Sunni Jurisprudence), Asadullah Tavakkoli, in the section addressing Shiʿi objections to the validity of maslahat, refers to the views of Ayatollah Makarem Shirazi. Makarem Shirazi, in contrast to the way Sunni scholars utilize maslahat, considers it to be an unregulated concept that leads to contradictory interpretations. He argues that this very issue is the reason Sunni scholars have been compelled to close the door to independent reasoning (ijtihād), in an attempt to resolve the conflicts arising from differing opinions. According to Makarem Shirazi, the validity of maslahat grants each individual mujtahid the authority to issue rulings based on it in cases in which there is no explicit divine text. This results in divergent opinions on a single issue, all of which must be accepted as divine commandments, despite inherent contradiction because divine commands, in his view, cannot logically be contradictory.Footnote 29 It is worth noting that Sunni conservative scholars—such as the late Saʿid Ramadan al-Buti—also rejected the idea that maslahat could be used to alter the established rules of shariʿa. He argued that because “it is the rules of the Shariʿa that constitute well-being, it would be absurd to use a free-standing notion of maslahat to change the rules of the Shariʿa, much less to repeal them.”Footnote 30
Shiʿi traditionalists also argue that sacred values and divine laws derive their legitimacy from a transcendental sphere and divine authority, making them self-sufficient and independent of rational foundations subject to maslahat. These values and laws are divine and sourced from supra-rational realms, and their assessment cannot reliably be conducted using temporal metrics such as worldly interests. Unlike customary laws, which are subject to critical assessment and revision based on considerations of public interest, divine laws such as divinely ordained punishments (hudud) are not subject to utilitarian calculus and societal fluctuations.Footnote 31 From this perspective, integrating divine law into the realm of customary law, in which maslahat is applied, is viewed as an epistemological error that may erode sacred values in practice. There is no justification for subordinating divine law to instrumental considerations.Footnote 32 Indeed, the more instrumental rationality influences the policies of the theocratic state, the greater the risk of compromising Islamic ethical values. It is worth noting that the aversion to utilitarianism in maslahat discourse is also evident in Sunni discussions. For instance, Hanbali jurist Najm al-Din al-Tufi's approach was criticized for resembling utilitarian theories advocated by figures such as Jeremy Bentham and John Stuart Mill.Footnote 33 Critics leveled accusations of restricting God's injunctions based on fallible human reason and changing the divine law arbitrarily.Footnote 34
Moreover, traditionalists argue that maslahat, along with juristic discretion (istiḥsān), maqāṣid, and qiyas, is an integral methodological principle and heuristic tool in Sunni jurisprudence but lacks legitimacy in Shiʿi jurisprudence.Footnote 35 They assert that maslahat not only lacks endorsement from revelatory sources but also was deemed invalid and unlawful by Shiʿi imams.Footnote 36 Critics contend that the notion that maslahat can determine what is beneficial ultimately leads to the irrelevance of shariʿa; legislation based on maslahat acts as a catalyst accelerating the secularization, dilution, and weakening of the Shiʿi jurisprudential framework, potentially rendering shariʿa obsolete and inert, and distorting authentic Islam.Footnote 37 The application of maslahat also raises profound questions about identity: what defines an individual as Muslim or a society as Islamic? What role do the Qurʾan and Sunna play in shaping society? Even some accommodationist jurists who adopt a conciliatory approach to maslahat argue that the implementation of maslahat is permissible only in the absence of clear religious texts (i.e., Qurʾanic texts and hadiths). They apply this principle to ijtihād as well, emphasizing that ijtihād is invalid in the presence of explicit declaration in the sacred sources (naṣṣ).Footnote 38 This approach resonates with Islamic law scholar Frank Vogel's characterization of Islamic law, which he describes as a system that “takes its textualism seriously, striving for epistemological rigour in interpretation and seeking to exclude as much human distortion as possible.”Footnote 39
Pro-maslahat jurisprudential arguments
Contemporary Shiʿi jurists who advocate for maslahat begin with the premise that all Islamic precepts are subject to maslahat and its counterpart, corruption (mafsada). This viewpoint suggests what shariʿa mandates (wājib) is rooted in perceived inherent benefit, whereas what it prohibits (harām) is due to identified harm or evil.Footnote 40 The premise echoes sentiments expressed by Sunni scholars such as Ahmad al-Raysuni, who argues that “a rule entailing maslahat (however defined) can be identified as an expression of the divine law,” and ʿAbd al-Wahhab Khallaf, who states that “wherever one finds maslahat, there lies God's legislation.”Footnote 41 Essentially, shariʿa is maslahat and maslahat is shariʿa.Footnote 42
An intriguing aspect of maslahat in Iranian political thought comprises the divergent perspectives on its application by the country's ruling clergy, particularly that between reformists and conservatives. Reformist clerics have generally emphasized the pragmatic and flexible nature of maslahat, advocating for its use as a means to adapt Shiʿi jurisprudence to modern governance and societal needs. They argue that maslahat should serve as a tool for social and political progress, even if it requires revising traditional interpretations of Islamic law. Ayatollah Hashemi Rafsanjani, for example, was a staunch proponent of maslahat, supporting its application when public interest necessitated deviation from established rules, particularly in economic and political policies. His commitment to maslahat is vividly illustrated in his 1981 letter to Ayatollah Khomeini, in which he put forward a substantially broader interpretation of the Shiʿi jurisprudential principles of public expediency and overriding necessity (zarurat).Footnote 43
In contrast, conservative factions, including figures such as Ayatollah Ahmad Khatami, have taken a more cautious approach, viewing maslahat as potentially compromising the foundational principles of shariʿa. As maslahat became increasingly integrated into the legal-political framework of the state, discontent grew within these conservative circles, who remained steadfast in their commitment to the Shiʿi legal tradition of the jurists’ law. This growing unease culminated in the resignation of the secretary of the Guardian Council and its most capable jurist, Ayatollah Lotfollah Safi, who steadfastly opposed the imposition of maslahat or public interest upon the established norms of Shiʿi jurisprudence.Footnote 44 For these conservatives, maslahat should not override divine law, but rather serve to protect and uphold the religious and political order. Although a detailed exploration of these ideological differences is beyond the scope of this article, it is important to note that they reflect broader political and theological debates within Iran, in which political orientation significantly influences the interpretation and application of maslahat.Footnote 45
Advocates of maslahat within the Shiʿi tradition further contend that the inherent moral worth or harm of an action existed prior to God's revelation of directives, rather than being determined by him.Footnote 46 This perspective shares similarities with the Mu'tazili school, which posits that acts are inherently good or bad, thereby suggesting that human intellect is capable of discerning maslahat. From the Mu'tazili perspective, it is an indisputable feature of Islamic shariʿa that its rules are wise. As a general principle—especially with regard to the rules that govern social life (al-ʿawāʾid wa-l-ʿādāt)—the wisdom of these rules is apparent to all reasonable persons (ʿuqalāʾ) by virtue of their reason.Footnote 47 This contrasts with the Ashʿarī school of theology, which maintains that shariʿa rulings cannot be evaluated based on maslahat; an action's goodness is not derived from its conformity with the inherent nature of the action, but rather from God's divine will.Footnote 48 This theological stance resonates with the view of Christian theologian William of Occam (1290–1349) that “Law is Will, pure Will, with no foundation in the nature of things.”Footnote 49
Accordingly, proponents argue that human intellect, through ijtihād, can approximate divine intent by considering maslahat. For instance, Ayatollah Montazeri suggests suspending stoning punishments if they tarnish Islam's image internationally. Similarly, the application of other hudud punishments should cease if they conflict with the greater good (maslahat) of Islam and Muslims. He further clarifies that this does not violate shariʿa's ruling but rather reflects the nonimplementation of shariʿa due to sociopolitical exigencies and the prioritization of more pressing concerns over less significant ones.Footnote 50 Ayatollah Mohaqeq Damad echoes this perspective, opposing the implementation of stoning punishment if it risks defaming Islam. He stresses the importance of recognizing situations and using maslahat to prevent potential harm. It is crucial, he argues, to utilize maslahat to present Islam through Shiʿi interpretations, highlighting its essence of compassion and kindness, in contrast to the portrayal of violent Wahhabi Islam.Footnote 51 Similarly, Ayatollah Ayazi, a member of the Assembly of Qom Seminary Scholars and Researchers, condemned the flogging of a 23-year-old Iranian woman for not adhering to the obligatory hijab in public spaces and sharing a photograph on social media, expressing a comparable sentiment: “If the imposition of an Islamic sentence causes hatred and aversion to Islam, then the exercise of such punishment is haram (forbidden) and should be avoided.”Footnote 52
This statement is indeed in harmony with the concept of maslahat, because it underscores the importance of balancing religious laws with broader societal consequences. Ayatollah Ayazi's position aligns with the core principle of maslahat, as conceptualized at the outset of this article, which is aimed at safeguarding the Shiʿi theocratic state and protecting the religion from defamation. In this case, Ayatollah Ayazi views the flogging of a young woman for nonobservance of the hijab as a measure that could potentially undermine the legitimacy of the state and harm the public's perception of Islam. In the spirit of maslahat, it becomes imperative to refrain from such punitive measures if they threaten the stability of the religious order or incite public disdain.
Contemporary proponents of maslahat also argue that although classical Shiʿi jurists did not explicitly define maslahat as an independent principle or dedicate specific sections to it in their works, they acknowledged its significance.Footnote 53 Prominent jurists such as Shaykh Tusi, Saheb Jawahir, and al-Shahid al-Awwal referenced maslahat in their writings, particularly concerning issues like marriage, qisas (retaliation in criminal law), and the public treasury.
Moreover, it is argued that gradual revelation of the Qurʾan demonstrates its continuous relevance to the evolving needs of the Muslim community, providing a comprehensive framework for addressing societal challenges over time. The gradual revelation of commandments to the early Muslim community was tailored to their specific circumstances, facilitating gradual acceptance and implementation of divine guidance. According to this perspective, maslahat, or the consideration of public interest, underlies the rationale for gradual revelation of the Qurʾan.Footnote 54 In other words, were God “to attempt to compel the entirety of the law's demands on the people at one time, they would likely reject it in its entirety, resulting thereby in great disorder.”Footnote 55 Advocates highlight that the gradual revelation of Qurʾanic verses concerning wine (16:6, 4:43, 2:219, 5:90), which progressively discouraged and ultimately prohibited its consumption, illustrates God's consideration of the maslahat of the Muslim community. This approach was intended to facilitate societal acceptance of the prohibition over time.Footnote 56
The final argument underscores the application of maslahat in guiding regulations concerning certain Islamic penalties. Advocates assert that various provisions related to hudud punishments support their suspension or modification by the judge when maslahat considerations are pertinent. For instance, during periods of widespread famine leading to widespread hunger, the divinely ordained punishment (hadd) for theft may be waived.Footnote 57 Similarly, if a convict faces flagellation but is at medical risk of fatality, the lashes should be consolidated into one using a braided whip (ḍigṭ). Additionally, if an adulteress or fornicator is heavily pregnant at the time of sentencing, the punishment is postponed until after childbirth.Footnote 58 These examples, it is argued, underscore the significant role that maslahat plays in Islamic penal jurisprudence.
Maslahat in the crucible of the modern shiʿi theocracy
The establishment of a Shiʿi theocratic state in Iran posed unprecedented practical challenges to Shiʿi jurists. Traditionally, Shiʿi doctrine asserts that Imam ʿAli was the rightful successor to the Prophet Muhammad, serving as the last legitimate leader of the Muslim community.Footnote 59 Per this belief, all earthly governments, including those claiming Shiʿi authority like the Safavids, are considered illegitimate and inherently usurpatory until the return of the Hidden Imam.Footnote 60 The legitimacy of sovereignty resides exclusively in the appointment by God through the infallible imam. Only the imam, divinely chosen and infallible, holds the authority to govern the Islamic community (umma). As a result, although Shiʿi jurists historically mediated the law and wielded influence, especially during the Safavid era, they never sought to establish an ideal Shiʿi theocracy themselves.Footnote 61 This historical perspective explains why Shiʿi juristic treatises and catechisms traditionally focused on personal aspects of the shariʿa such as prayer and fasting, rather than extensively delving into broader economic, social, and political issues. Historically, Shiʿi jurisprudence had limited influence in shaping political or social jurisprudence, instead emphasizing religious guidance for individual conduct and spirituality.Footnote 62
With the rise of Shiʿi jurists to power in 1979, accompanied by a shift in the modes of legitimization within Shiʿi political tradition, Shiʿi authorities encountered the challenges of adapting classical pronouncements to modern political realities.Footnote 63
The most straightforward solution to these challenges was the issuance of a state order (hokm-e hokoumati), a directive that Ayatollah Khomeini, by virtue of his authority, could adapt, modify, or suspend shariʿa laws in response to the evolving interests of the newly established Shiʿi theocratic state. Ayatollah Khomeini's opinion on the nature of a state order was supported by Article 57 of the Constitution, which acknowledges the absolute authority (velāyat-e amr) of the supreme leader.Footnote 64 In fact, the constitutionally endorsed absolute authority of his command stems from his religiopolitical theory of “absolute authority of an appointed faqih” (velāyat-e motlaqe-ye faqih), according to which all rights exercised by the Prophet and the imams in state affairs may now be exercised by the vali-ye faqih.Footnote 65 There is no distinction between the authority of the Prophet and that of the guardian faqih (vali-ye faqih), and the head of the state has the exclusive right to prevent the implementation of any law that in his judgment will undermine the interests of the state. The concept of absolute guardianship grants the guardian faqih the authority to annul any shariʿa rulings considered irrelevant to the contemporary context or that fail to align with the interests of the political system. This expansive power allows the faqih to adapt Islamic legal principles to the evolving needs of society, prioritizing the maintenance of order and the system's welfare over strict adherence to traditional rulings.Footnote 66
As Kadivar explains, whenever the guardian faqih determines that there is a maslahat for Islam and Muslims that is not stated in the constitution, he has the right to violate even positive law.Footnote 67 However, this is only an apparent violation, because the head of the state has not in fact violated the revealed shariʿ.Footnote 68 The orders of the guardian faqih are tantamount to positive law, and if there is a conflict between a positive law and his order, the latter prevails.Footnote 69 As the interest of the state is the basis of state order, the guardian faqih takes maslahat into account when issuing state orders.Footnote 70 Indeed, the state order is a tool at the disposal of the head of the state, who is tasked with discerning what is beneficial or detrimental to the Shiʿi polity. According to Ayatollah Khomeini, only a theocratic government ensures that Islamic laws and teachings are upheld and protected from both internal and external challenges.Footnote 71 Indeed, in his opinion, the only maslahat that remains constant is the preservation of Shiʿi theocracy.Footnote 72
Although the issuance of a state order provided a straightforward solution, it was not practically feasible to petition Ayatollah Khomeini for such a directive to resolve every governmental conflict or tension. This limitation became particularly evident in the early years, as a key issue arose in the ongoing power struggle between the parliament (Majles-e Shurā-ye Eslāmi) and the Guardian Council (Shurā-ye Negahbān), which was tasked with reviewing all legislation passed by the parliament to ensure compliance with Islamic principles and the constitution of Iran.Footnote 73 The parliament consistently advocated for the passage of proposed bills into law despite facing opposition from the Guardian Council. Over time, this recurrent deadlock resulted in a significant confrontation between the legislative body of the government and the Guardian Council—a clash between the will of the representatives of the people and that of the guardians of God's will.Footnote 74 This legislative impasse marked a pivotal turning point in the institutionalization of maslahat in the Shiʿi theocracy.
Perceiving this legislative impasse as a potential threat to the nascent regime's viability and stability, Ayatollah Khomeini, then supreme leader, strategically invoked the concept of maslahat to navigate the crisis. On February 6, 1988, he issued a decree mandating the establishment of an administrative body. Initially known as the Administrative Assembly and later renamed the Expediency Discernment Council, its primary mandate was to mediate disputes between the parliament and the Guardian Council and propose solutions grounded in maslahat. Empowered by a constitutional amendment in 1989, the council was granted authority to approve legislation rejected by the Guardian Council.Footnote 75 In the view of Said Amir Arjomand, the constitutionalization of the Expediency Council represented the culmination of the incorporation of the Sunni principle of maslahat, a concept that had historically been rejected by Shiʿi tradition. He characterizes this development as the “Sunnitization of Shi'ism.”Footnote 76 This observation aligns with the perspective of traditionalists, who regard maslahat as a central methodological principle and heuristic tool in Sunni jurisprudence, but as lacking legitimacy within Shiʿi jurisprudence, as I discussed in an earlier section.
The establishment of the Expediency Council marked Ayatollah Khomeini's implicit acknowledgment of “the failure of traditional ijtihād to cope with current challenges and its lack of pragmatism in responding to contemporary needs.”Footnote 77 The establishment of the Expediency Council was met with widespread approval among leaders of the regime. Notably, Ayatollah ‘Abdol-Karim Musavi Ardabili, president of the Supreme Judiciary Council and one of the key figures who had urged Ayatollah Khomeini to create the council, hailed its formation as “the most important of all the achievements of the revolution.”Footnote 78
The establishment of the Expediency Discernment Council was consistent with Ayatollah Khomeini's religiopolitical doctrine, which prioritized the preservation of Shiʿi theocracy (hefz-e nezām) as the most pressing obligation.Footnote 79 The concept of guardianship of the Islamic jurist (velāyat-e faqih), who plays a constitutional role as a so-called paterfamilias, compels the supreme leader to safeguard the theocratic state. For Ayatollah Khomeini, the imperative to preserve Shiʿi theocracy surpassed all other religious duties, because the existence of the theocratic state was essential for the preservation of Islam itself. In his view, the only enduring maslahat lay solely in the preservation of Shiʿi theocracy.Footnote 80 He stated:
Protection of the Islamic government is a divine obligation incumbent upon everyone and is the most important obligation that God has given. That is, protecting the Islamic Republic is more important than saving the life of individuals, even if that individual be the Imam of the Time, because the Imam sacrifices his life for Islam. All Prophets, from the creation of the universe up to the present, came for truth; they fought for the religion of God and sacrificed their lives for it.Footnote 81
Ayatollah Khomeini's consideration of maslahat is exemplified by his response upon learning that the implementation of stoning had led to mockery of Islam, portraying it as a barbaric and brutal religion. In addressing this situation, he proposed that “the courts should be instructed to resort to other punitive measures like the death penalty.”Footnote 82 Additionally, he emphasized the significance of secondary rulings (ahkām-e sānavi-ye) in Shiʿi legal theory, recommending to parliament that “in urgent cases, it would be advantageous to involve dedicated and devout experts in parliamentary committees to identify issues for the secondary rulings, thus enabling more effective problem-solving by leveraging their advice.”Footnote 83 He concluded by stating: “The secondary rulings are unrelated to the velāyat-e faqih, and following the decision of Parliament and the approval of the Guardian Council, no official has the authority to reject it. The government must promptly and unquestioningly implement it.”Footnote 84 He also advised the Guardian Council to carefully consider secondary rulings when reviewing bills proposed by parliament.Footnote 85
The creation of the Expediency Discernment Council embodied Ayatollah Khomeini's endorsement of maslahat as a crucial instrument in resolving political challenges. Since its establishment, the council has intervened when conflicts arose between parliament and the Guardian Council over the constitutionality or adherence to Islamic principles of proposed laws. Although specific instances of maslahat guiding their decisions are not publicly detailed due to the confidentiality of their proceedings, their decisions often reflect progressive legal innovations grounded in utilitarian considerations and political realism. The council's decisions prioritize expediency with the aim of safeguarding Islam and ensuring the legitimacy and impartiality of the judicial system, particularly regarding perceptions of inequality inherent in traditional Islamic laws.
It is important to note that the functions of the Expediency Council have extended well beyond its original mandate of arbitration between the parliament and the Guardian Council. In addition to this, the council is tasked with advising the leader on “the determination of the general policies of the regime” (Article 110), as well as on any other matters referred to it. Following the constitutional amendments of 1989, the scope of the Expediency Council has further expanded, effectively positioning it as a new and highly significant legislative body. Unlike the Guardian Council, the Expediency Council is not obligated to return amended legislation to any other body for review. It has engaged in independent lawmaking, often altering items of legislation that were not originally subjects of dispute between the Guardian Council and parliament. In fact, disagreements between these two bodies accounted for less than a third of the council's enactments in the first four years of its existence.Footnote 86 Nevertheless, according to the Guardian Council's constitutional interpretation of October 15, 1993, “no legislative organ has the right to annul or rescind an enactment of the Expediency Council.”Footnote 87 Among the notable legislative actions undertaken by the Expediency Council are the December 1991 law establishing a High Disciplinary Court for judges; the November 1992 introduction of alimony, which paved the way for reforms to the judiciary appointment process to permit the appointment of women as judges in April 1995; the July 1994 law regulating military courts; and the May 1995 law addressing governmental punishments for smuggling and foreign currency violations.Footnote 88
In the following section, I will explore three significant cases in which maslahat influenced decisions amid conflicts between parliament and the Guardian Council, mediated by this council.
The Expediency Council: Navigating the interplay between Maslahat and Shariʿa
The right of religious minorities to run for election
Before delving into the first case, it is essential to note the provisions outlined in Article 13 of the Iranian Constitution. Under this article, “Zoroastrian, Jewish, and Christian Iranians are considered the only recognized religious minorities. They may exercise their religious ceremonies within the limits of the law. They are free to exercise matters of personal status and religious education and they follow their own rituals.” Furthermore, Article 64 stipulates that Zoroastrians and Jews will each elect one representative, whereas Assyrian and Chaldean Christians will jointly elect one representative. Additionally, Armenian Christians from the northern and southern regions of the country will each elect one representative.
In April 2017, Sepanta Niknam, a Zoroastrian member of the city council of Yazd, faced suspension from his position due to the Guardian Council's retroactive nullification of a provision in the Law on the Formation, Duties, and Election of National Islamic Councils of 1996. This provision had implicitly permitted the participation of religious minorities in such elections. Ahmad Jennati, chairman of the Guardian Council, declared that Note 2 of Article 26 of this law contravened shariʿa and was therefore null and void.Footnote 89 The Guardian Council argued that due to its lack of supervisory authority over city council decisions, religious minorities were ineligible to represent Muslims in cities in which Muslims constituted the majority of residents. This statement implicitly invoked the Islamic principle of nafy-e sabil, which denotes the rejection of the domination of non-Muslims over Muslims.Footnote 90A related—though contextually different—position was expressed by Ayatollah Khomeini in a 1962 telegram to Mohammad Reza Shah, in which he objected to a government proposal allowing non-Muslims to hold public office. While the Guardian Council’s argument centered on procedural and supervisory concerns within the post-revolutionary constitutional framework, Ayatollah Khomeini’s objection reflected a broader theological stance rooted in the religious-political order he envisioned. Although expressed in different historical and institutional contexts, both positions reflect a shared underlying concern about the political authority of non-Muslims in a Muslim-majority society. He stated that the ulama had publicly declared that the “renunciation of the conditions whereby only Muslims are entitled to vote and to be elected is contrary to Islam and to the constitution.”Footnote 91
Although the Guardian Council's reasoning seemed to align with Ayatollah Khomeini's stance, the Iranian Parliament swiftly countered by reintroducing the law, explicitly affirming the right of religious minorities to stand for election to city councils. In 2018, parliament passed a comprehensive bill comprising 94 articles detailing the requirements and election procedures for city councils. Article 26 specifically stated: “When participating in elections, recognized minorities as per the Constitution must adhere faithfully and steadfastly to their own faith.” However, the Guardian Council made an exception in Article 26, asserting that “non-Muslims cannot run for candidacy in cities where the majority of residents are Muslims.”Footnote 92 This decision sparked national outrage, prompting parliament to stand firm on its position and refer the case to the Expediency Council. Ultimately, the Expediency Council readopted the original legislation challenged by the Guardian Council, thereby lifting the ban on candidacy for religious minorities.
Ayatollah Bayat Zanjani, a prominent religious authority and a member of the Assembly of Teachers and Researchers of the Qom Seminary, and Ali Motahari, the deputy speaker of the Iranian Parliament, both firmly supported the Expediency Council's decision to affirm Niknam's position on the city council. In their statements, they emphasized that membership in the city council should not be interpreted as granting any form of guardianship (velāyat) or dominion (estilā) over the people. They argued that the role of a city council member was purely administrative and civic in nature, without any implication of exerting authority over the broader population. This distinction was crucial for both Zanjani and Motahari, as they sought to clarify that the duties of an elected councilor—whether Muslim or non-Muslim—did not extend to religious or political governance, but rather focused on serving the public and managing local affairs in accordance with the law.Footnote 93
It is noteworthy that despite the maslahat-oriented mediation initiated by the Expediency Council, which ultimately resolved the case in favor of religious minorities, a discernible constraint on the rights of citizens persists. The decision of the Expediency Council to reinstate the law permitting candidacy for religious minorities is laudable for its adherence to principles of equity and inclusivity within Iran's political framework. However, a significant concern remains regarding the selective recognition of certain religious minorities under the constitution, prompting broader inquiries into religious freedom and legal equality in Iran. Although the constitution acknowledges the rights of certain religious minorities, namely Zoroastrians and adherents of Judeo-Christian religions, other faiths such as Hinduism, Buddhism, and Confucianism face distinct challenges and disadvantages due to their exclusion from this legal framework.
The legal age of marriage
Before the Islamic Revolution, the Iranian Civil Code stipulated a minimum marriage age of 15 for girls and 18 for boys, with exceptions allowing marriages at younger ages with court approval.Footnote 94 Following the enactment of the 1975 Family Protection Law, these ages were raised to 18 for girls and 20 for boys. However, after the Islamic Revolution, Article 1041 was amended in 1981 to permit marriage before puberty with the guardian's consent, eliminating the requirement for court approval. In 1991, the parliament proposed a bill permitting marriage before puberty (9 for girls, 15 for boys) if deemed beneficial by the guardian, reflecting a widely accepted opinion (qowl-e mashhur) among Shiʿi jurists.Footnote 95
However, it is to be noted that there are some Shiʿi mujtahids, including Ayatollah Zanjani, who oppose the prevailing Shiʿi stance on the age of marriage. They present a maslahat-based argument for the abolition of child marriage, emphasizing the significant harm it causes to the child's well-being. They contend that such marriages have detrimental effects not only on the individual's life but also on the broader religious community, ultimately undermining both social stability and moral integrity.Footnote 96 Tayebeh Siawoshi, a member of parliament, notes that the most significant support she received last year came from Ayatollah Makarem Shirazi and his fatwa on the issue at hand. She elaborates, stating, “During our visits to the clerics, some, including Ayatollah Sanei, embraced his perspective—that the legal age of marriage should be determined by mental maturity—while others rejected it. We have been accused of blindly adhering to international documents and neglecting religious principles, but this accusation is unfounded. In reality, we advocate for dynamic jurisprudence (fiqh-e puyā) that takes into account the evolving contingencies of time and place.”Footnote 97
Despite parliament's approval, the Guardian Council rejected the bill on the prevailing opinion among Shiʿi jurists, which permits marriage before puberty. Despite the rejection of the bill, the parliament persisted in its stance, precipitating a conflict with the Guardian Council. At an impasse, the bill was eventually referred to the Expediency Council. Upon review, the council members confronted a dilemma: endorsing the bill would disregard prevailing Shiʿi juristic opinion, whereas upholding the Guardian Council's objection would legitimize child marriage. Permitting child marriage posed significant social challenges and conflicted with international human rights norms and treaties that Iran had already ratified, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.
Faced with conflicting viewpoints—the parliament advocating for increased marriage ages versus the Guardian Council's stance permitting marriage before puberty—the Expediency Council crafted a compromise. In a significant decision conveyed to the parliament, the Expediency Council established the legal age of marriage at 13 for girls and 15 for boys: “Henceforth, the legal age of marriage for girls is 13 and for boys is 15 years old. Such marriages must only occur with the consent of the father and require authorization from the courts.”Footnote 98 This resolution, requiring parental consent and judicial oversight, aimed to harmonize shariʿa norms with international human rights standards and cultural practices. Consequently, Article 1041 of the Civil Code was amended to read as follows: “Marriage of girls before reaching the age of 13 full solar years and boys before reaching the age of 15 full solar years is subject to the permission of the Guardian and on condition of taking the child's best interest into consideration and approval of the relevant court.”Footnote 99
Although the middle-ground decision by the Expediency Council marked a departure from traditional Shiʿi jurisprudence aimed at safeguarding minors’ interests, concerns persist regarding its efficacy in protecting them. Establishing the legal marriage age at 13 for girls and 15 for boys, although a progressive step in reforming Iran's marriage laws, does not fully meet broader societal expectations and global norms concerning child protection and gender equality. The provision allowing for early marriage introduces a potential loophole that may be exploited by abusive guardians seeking personal gain through coerced marriages. This loophole raises serious ethical and practical concerns, as it may enable guardians to manipulate information and misrepresent the child's best interests to secure court approval for early marriages. Continued efforts to harmonize national legislation with international human rights treaties, which advocate for the protection of children's rights and dignity, should remain a priority in advancing legal reforms and ensuring the well-being of minors.
Blood money of constitutionally recognized religious minorities
In Shiʿi jurisprudence, qisas punishment (retaliation in kind) can only be requested by the victim or their heirs under six specific conditions outlined in the Iranian Penal Code: equality of freedom, absence of paternal relationship, adulthood, sanity, equality of religion, and not being of wasted blood. Failure to meet any of these conditions precludes the enforcement of qisas punishment. Shiʿi jurists, both classical and contemporary, emphasize religious equality as a fundamental principle in their legal discourse on qisas. This principle exempts Muslims, regardless of gender, from qisas for crimes committed against non-Muslims including Jews, Christians, and Zoroastrians, as recognized under Article 13 of the Constitution. Instead of qisas, religious minorities are entitled to receive blood money (diyah) as compensation.Footnote 100 Although there are varying opinions among Shiʿi jurists regarding the specific amount of blood money non-Muslims can claim, it is generally acknowledged that this compensation is typically lower than what would be awarded for the killing of a Muslim.Footnote 101
The 1991 Islamic Penal Code omitted specific guidelines for the amount of blood money payable to non-Muslims, leaving judicial discretion to interpret Islamic sources and fatwas, typically resulting in lower compensations than those awarded Muslims. This inequality raised constitutional concerns, particularly regarding Article 13, which acknowledges Zoroastrian, Jewish, and Christian minorities. In 2003, parliamentarians representing religious minorities proposed a bill to standardize blood money rates for Muslims and non-Muslims. Despite strong parliamentary backing, the Guardian Council rejected the bill, citing potential conflicts with Shiʿi jurisprudence and constitutional norms. Some scholars have posited that the rejection was primarily influenced by the council's adherence to Ayatollah Khomeini's fatwa, which stipulated that the blood money for non-Muslims was 800 dirhams, a sum considerably lower than the 10,000 dirhams prescribed for Muslims.Footnote 102 Parliament persisted, leading to the bill's referral to the Expediency Council, which eventually supported parliamentary efforts. To justify this decision, which diverged from traditional Shiʿi jurisprudence, the council cited a fatwa issued by Supreme Leader Ayatollah Khamenei, endorsing equal blood money for religious minorities and for Muslims.
Indeed, the Expediency Council deemed the supreme leader's fatwa to serve maslahat, despite its departure from traditional Shiʿi jurisprudence on blood money. Consequently, a specific provision was appended to Article 297 of the Islamic Penal Code, recognizing the blood money of religious minorities, as stipulated in the constitution, as equivalent to that of Muslims. When the current Islamic Penal Code was enacted in 2013, this provision was rearticulated as Article 554, stating: “Based on the governance decree of the Supreme Leader, the wergild of felony against religious minorities recognized under the Constitution of the Islamic Republic of Iran shall be in the same amount as the wergild of a Muslim.”
It is worth noting that, in response to the question regarding blood money for religious minorities in the Islamic Republic of Iran, Ayatollah Sistani, a leading contemporary Shiʿi authority, stated that “the determination of the blood money for the People of the Book lies within the jurisdiction of the leader of the Islamic government.”Footnote 103 By leaving this decision within the jurisdiction of the vali-ye faqih, Ayatollah Sistani highlights the importance of pragmatic governance in addressing legal matters that impact both religious minorities and the broader society. This delegation of authority underscores the principle of maslahat, allowing the leader to make decisions that balance religious doctrine with the practical needs of a diverse society.
Although this legal reform represents a notable advancement in addressing institutionalized discrimination and ostensibly aligning with international human rights norms, its scope remains contentious. Article 554's limitation to “the people of the book”—specifically Zoroastrians, Jews, and Christians—highlights a selective application of constitutional protections. This exclusion systematically marginalizes adherents of post-Islamic Abrahamic faiths, as well as agnostics and atheists residing in Iran. Consequently, despite perceived strides in safeguarding minority rights within recognized religious frameworks, a broader spectrum of religious and nonreligious identities continues to face legal inequities and exclusion from the right to equality. Although there has been incremental progress, substantial challenges persist to achieving comprehensive inclusivity and equality before the law across all sectors of Iranian society.
Utilizing maslahat in legislative and policy endeavors
As previously noted, the establishment of the Expediency Council was motivated by the imperative to apply the pragmatic principle of maslahat in decision-making. Parliament and the judiciary also assume a pivotal role in Iran's political-legal framework by fostering a rational and accountable legislative process that prioritizes national interests. However, it is crucial to underscore that the Islamicness of legislation holds primacy over all other considerations, as overseen by the Guardian Council and mandated by Article 4 of the Constitution, which stipulates that all laws must conform to Islamic criteria.Footnote 104 Despite this considerable constraint, Iranian lawmakers and the head of the judiciary have exhibited legal and political astuteness by strategically integrating maslahat into legislative and judicial practices. This strategic approach enables them to address contemporary social challenges while upholding shariʿa law, thereby achieving a delicate balance between traditional Islamic principles and pragmatic solutions. Subsequent sections will delve into the application of maslahat by both the parliament and the chief justice of Iran.
A compensation for the disparity between blood money for males and females
According to Shiʿi jurisprudence, intentional murder of a Muslim woman invokes the right of retaliation. However, in the case of a murdered Muslim man, the avengers of blood are required to pay half of the full amount of blood money to the murderer before the imposition of talion, as stipulated in Article 382 of the Islamic Penal Code.Footnote 105 Viewed through a criminological lens, this differential treatment under Article 382 has potential criminogenic implications by inadvertently promoting violence against women. Conditioning qisas punishment for a male who murders a female on paying only half of the blood money could incentivize potential male perpetrators—especially when their intended victims come from disadvantaged backgrounds—to commit crimes against these so-called “half-value” individuals in cold blood.Footnote 106 The controversial imposition of onerous responsibilities on the heirs of female murder victims seeking retaliation against male perpetrators has incited substantial social challenges and discontent. In an effort to address this inequality ingrained in Shiʿi jurisprudence, Iranian legal scholar Ali Jurkuye proposed that, in alignment with the principle of maslahat, varying amounts of blood money should be disbursed from the public treasury. This suggestion, rooted in the principle of maslahat, seeks to adjust the traditional legal framework to reflect the changing socioeconomic realities of modern Iranian society. Jurkuye's argument was that as women's roles in Iranian society have evolved—thanks to increased participation in education, the workforce, and public life—there should be a reevaluation of their legal standing. He argued that his proposed reform would align with the fatwas of prominent religious authorities, such as ayatollahs Fazel Lankarani, Nuri Hamedani, Makarem Shirazi, and Musavi Ardebili.Footnote 107
Ultimately, this dissatisfaction with the differential treatment outlined in Article 382, along with the broader social and legal challenges it generated, prompted parliamentary intervention, culminating in the incorporation of Article 428 into the Islamic Penal Code. Notably absent from prior penal codes and criminal procedural laws, this article was introduced based on considerations of maslahat, with the intention of mitigating the complexities and criticisms associated with this particular legal matter. It states:
In the instances in which commission of the felony has disturbed ordre public and public security or outraged public sentiments, and it is expedient to enforce talion, but the complainant has no financial ability to pay the wergild differential or other wergild shares of the holders of the right to enforce talion, the said amount shall be paid out of the public treasury at the request of the Attorney General and upon confirmation of the Judiciary Chief.
Analytically speaking, this article serves as a sociological mechanism addressing both the societal impacts of felonies and the economic disparities influencing access to justice. It embodies a maslahat-based approach aimed at preserving social order amid the complexities of socioeconomic diversity and public sentiment in contemporary Iranian society. However, although Article 428 partially mitigates the gender discrimination inherent in Article 382, it cannot be hailed as an iconoclastic innovation, because it does not fully achieve gender equality in blood money. Article 428 fails to provide categorical support for gender equality in blood money and operates under conditional circumstances, requiring that the felony disrupt public order or outrage public sentiments for its application. Although it represents a step toward reform, it falls short of establishing a comprehensive legal framework ensuring equal rights for heirs of murder victims in cases in which the victim is female.
Moratorium on the stoning execution
During the revision of the new penal code, which subsequently became the Islamic Penal Code (IPC) 2013, maslahat influenced parliamentary deliberations concerning the punishment of stoning for adultery. This punishment, not explicitly mandated in the Qurʾan but supported by certain hadith reports indicating its historical implementation during the time of the Prophet and Imam Ali, was a focal point of legal and jurisprudential discourse.Footnote 108 These hadith reports led to the inclusion of stoning as a punishment in the Penal Code of 1991 (Article 83), in which it applied under specific circumstances.Footnote 109 Consequently, stoning was practiced in Iran in accordance with this penal code for twenty-two years, although it was carried out rarely. Since the establishment of the IRI, Iranian authorities have faced mounting pressure from both domestic and international organizations regarding the practice of stoning. Despite its rarity, the implementation of stoning has drawn increasing scrutiny and criticism from diverse perspectives, encompassing both committed approaches within shariʿa jurisprudence and detached viewpoints from broader contexts. A key argument of the committed approach is grounded in the principle of maslahat, which posits that the practice of stoning could be suspended if it can be shown that its continued implementation would lead to the weakening of Islam.Footnote 110 However, the inclusion of stoning as a punishment in the penal code has extended beyond academic discourse, drawing widespread condemnation from the United Nations and other international bodies, particularly toward Islamic states that persist in enforcing stoning and other hudud punishments.Footnote 111 Critics argue that such practices undermine human dignity and violate fundamental principles of human rights, further intensifying calls for reform.Footnote 112
Given this situation, in 2013, parliamentarians devised a maslahat-oriented strategy to navigate the intense pressure resulting from the implementation of stoning when amending the new penal code. However, removing stoning from the penal code proved challenging due to its support from a broad spectrum of traditional Shiʿi jurists and its scriptural grounding in Shiʿi jurisprudence. To circumvent this challenge, parliamentarians embraced a strategy to avoid applying stoning while remaining within the doctrinal boundaries of Shiʿism, or so they believed. The strategy involved the enactment of Article 225 of the amended penal code (2013), which implicitly established a moratorium on the application of stoning. This article grants judges the authority to substitute the hadd punishment of stoning with execution when “circumstances”—read this as maslahat—dictate that stoning should not be carried out. This provision seems to reflect the influence of Ayatollah Shahrudi, the chief justice of Iran, who disapproved of stoning for adultery as prescribed by shariʿa.Footnote 113 He believed that judges could, and should, commute the punishment to alternative forms of punishment in the interest of maslahat (public interest).Footnote 114 The article reads:
The hadd punishment for mohsan [married adulterer [and mohsane] married adulteress] is stoning. When the execution of stoning is not possible, the mohsan and the mohsane will be subjected to the death penalty upon suggestion of the final judgment-issuing court and agreement of the Judiciary Chief, if crime is established by evidence. And, otherwise, it will make either subject to one hundred lashes.
Although this article should be regarded as an admirable legal overhaul of Article 83, which explicitly proscribed the stoning punishment, it should not escape our notice that the phrase “when the execution of stoning is not possible” introduces significant ambiguity. This ambiguity regarding when stoning is deemed impractical may lead to inconsistencies in its application, as the criteria for determining “impossibility” are left unclear. Such vagueness opens the door to subjective interpretation, potentially allowing authorities to bypass more humane alternatives, and raises concerns about the fairness and transparency of its enforcement. This lack of clarity may result in arbitrary decisions that undermine the integrity of the legal system.
The criminalization of homicide of wasted blood people (extrajudicial killings)
As outlined in the introduction, the exonerative provision in the second note of Article 295 of the Islamic Penal Code of 1991 grants ordinary individuals the right to engage in the killing of those deemed to have wasted blood. This provision could potentially embolden individuals, much like the Hanaei-like moral crusaders, to wield the sword of self-defined Islamic justice, aiming to cleanse society of perceived moral corruption.Footnote 115 Rooted in Shiʿi jurisprudence, this provision absolves individuals who commit homicide against those considered wasted blood from facing the death penalty (qisas) or being obligated to pay blood money. However, this note has presented both theoretical and practical challenges. Theoretically, it conflicts with modern principles of criminal justice, which emphasize the exclusive jurisdiction of the judiciary over criminal prosecutions and adherence to procedural rules that safeguard fundamental human rights. These include the rights to be informed of charges, to a fair trial, to defend oneself, and to be heard during sentencing.Footnote 116 In practice, the note has sociological repercussions, granting the public the authority to kill individuals presumed to be wasted blood without fear of punishment. This approach fosters a criminogenic environment, potentially encouraging vigilantism and undermining the rule of law.
During the drafting of the new Islamic Penal Code, parliamentarians strategically applied maslahat to address these problematic issues without contravening Shiʿi jurisprudence. This approach allowed them to strike a delicate balance between shariʿa standards and societal interests by criminalizing extrajudicial killings. To achieve this goal, they introduced Note 1 of Article 302 into the Islam Penal Code, which explicitly mandates discretionary punishment for individuals who commit homicide, even if the victim is considered “wasted blood”:
Taking action as regards clauses a, b, and c of this Article, absent an authorization by the court, shall constitute a crime; and the perpetrator shall be sentenced to the discretionary punishment laid down in Book Five: Discretionary Punishments.
Consequently, although the perpetrator of such a homicide may be exempt from facing qisas or being required to pay blood money, they remain subject to the discretion of the court in determining an appropriate penalty. This provision, influenced by the broader maslahat of society, represents a significant step toward mitigating the potential for private vengeance and advancing a more structured approach to justice. By introducing this discretionary framework, lawmakers sought to address the inherent dangers of vigilante justice, ensuring that individuals who act outside the bounds of the legal system are still held accountable in a manner that respects both legal and societal norms.
The ban on the application of public punishment
Since the Islamic Revolution, public punishment in Iran has evolved from traditional methods of capital punishment, such as hanging from cranes, to include sporadic instances of stoning and public flogging. Sociologist of punishment Abdolreza Bojnordi notes that these practices were incorporated into Iran's penal system postrevolution for their perceived deterrent effects and their alignment with religious interpretations of penal justice.Footnote 117 Proponents of public punishment argue that these measures provide closure, deter crime, enhance social security, and reduce recidivism.Footnote 118 Additionally, they justify these practices under shariʿa law, referencing Qurʾanic verses (24:2) that prescribe public witnessing of punishments for offenses such as adultery.Footnote 119 For instance, Iranian jurist Hasan Fallah, an ardent advocate of public implementation of hudud, asserts that the enthusiastic applause from crowds witnessing such spectacles near the scaffold demonstrates widespread popular endorsement of hudud implementation. Fallah contends that public hudud punishments contribute to societal security perceptions and reinforce the authority of the theocratic regime.Footnote 120
Similar to the implementation of stoning, the state's practice of public punishment has elicited significant scholarly opposition, both domestically and internationally. Critics argue that such practices may adversely affect national interests by psychologically impacting Muslim society. Concerns are often raised about the public health implications of witnessing these penalties, with scholars contending that public punishment fails to achieve its intended deterrent effects and instead proves detrimental to broader societal cohesion. Moreover, they assert that these practices contribute to the erosion of the Shiʿi theocracy's global reputation. Some Muslim scholars warn that the public implementation of punishments invites accusations of barbarism and savagery against Islam, potentially tarnishing its image. They believe it is imperative for the Shiʿi theocracy to avoid actions that could undermine the perception of Islam.Footnote 121
The debate over the use of public punishment intensified significantly, driven by internal dissent and external political pressures. In response to this contentious issue, Ayatollah Shahrudi issued a seminal maslahat-oriented decree in February 2008. This decree not only banned public punishment but also prohibited the dissemination of related images through mass media channels.Footnote 122 Shahrudi's decisive action marked an unprecedented intervention in Iran's postrevolutionary judicial system, aimed at averting the potential detrimental effects of public punishment on the state and Islam. Grounded in maslahat, this intervention sought to minimize the societal costs associated with penal practices, marking a strategic shift toward safeguarding national interests and the global reputation of Islam amid ongoing scrutiny.
Alas, the judicial reforms resulting from the intervention of the chief justice remained largely unimplemented, as the decree issued by the chief justice in 2008 was not well liked or binding enough and many judges continued to sentence criminals to public punishments: In May and July 2008 alone, some thirteen criminals were sentenced to public hangings.Footnote 123 To the best of my knowledge, the most recent example occurred on Monday, September 30, 2024, when the death sentence of two armed robbers was carried out in the city of Khomein, situated in the central Markazi province.
The noncriminalization of apostasy in the islamic penal code
A scholar in Islamic studies, Abdulaziz Sachedina claims that there is no full consensus among Muslim scholars apropos of the punishability of apostasy. He asserts that “when religious leaders, clerics, and jurists create and enforce laws that they argue reveal religiosity or apostasy of citizens, they intrude on a domain that belongs to God.”Footnote 124 However, as Abdullah Saeed noted, “the majority of Muslim jurists have maintained that apostasy is a crime that should be punished by death.”Footnote 125 Sachedina also acknowledges that “the majority of jurists in the Muslim world continue to affirm traditional rulings in this matter and, at least theoretically, maintain the validity of the classical formulations regarding apostasy.”Footnote 126 Within the Shiʿi legal tradition, classical juristic treatises are replete with provisions regarding apostasy and its associated punishments. These texts, authored by prominent Shiʿi scholars throughout history, provide detailed discussions on the legal consequences of apostasy, consistently upholding the principle that apostasy is a capital offense.Footnote 127
Even in contemporary times, one can point to fatwas, such as those issued by ayatollahs Morteza Bani Fazl and Mohammad Fazel Lankarani, that condemned Pakistani intellectual, writer, and secular activist Rafiq Taqi to death for apostasy and blasphemy against the Prophet. These fatwas, however, have been rigorously contested, particularly by Kadivar. In Blasphemy and Apostasy in Islam, Kadivar raises several objections to fatwas calling for the execution of apostates and blasphemers. He argues that such rulings lack reliable Qur'anic justification, as the Quran emphasizes the preservation of life. Even if hadiths justifying execution are considered valid, he believes they rely on weak, “isolated reports” that fail to meet the rigorous standards required for such grave rulings. He stresses that the sanctity of life should take precedence and that only definitive, clear evidence can justify the death penalty. He also highlights the dangers of allowing individuals to execute such fatwas, which undermines the judicial process and could lead to lawlessness and public disorder. Additionally, he asserts that issuing such fatwas tarnishes the image of Islam, associating it with violence and terrorism, and ultimately damages the credibility of the faith. He advocates for peaceful, logical engagement and legal recourse, rather than violence, to address offenses or insults against religion.Footnote 128
Despite the strong historical and doctrinal support for the criminalization of apostasy in Islamic jurisprudence, it is surprising to note that the Islamic Penal Code of Iran, which is grounded in both Shiʿi legal principles and modern statutory law, does not explicitly criminalize apostasy as a punishable offense. Although the death penalty for apostasy remains a subject of significant legal and theological debate, it is striking that such a punishment is conspicuously absent from the text of the penal code. This omission is particularly noteworthy given the longstanding doctrinal consensus among many jurists, both historical and contemporary, that apostasy warrants severe penalties, including capital punishment. In Maslahat and Hudud Punishments, Iranian legal scholar Hamed Rostami argues—correctly, in my view—that this omission is due to the international obligations Iran has undertaken, particularly with respect to human rights conventions.Footnote 129 Other Iranian scholars contend that the omission of apostasy as a capital crime in the penal code is due to considerations of maslahat and the fear of opposition from critics of ideological persecution.Footnote 130 It is important to note that Rostami's mention of international obligations is directly relevant to maslahat: Iran's international human rights commitments and maslahat are not mutually exclusive but rather interrelated. Adhering to international human rights norms, particularly concerning sensitive issues such as apostasy, can be seen as a pragmatic application of maslahat, given that the punishment for apostasy is explicitly outlined in the most prominent juristic treatises. This approach allows the state to safeguard its broader interests by mitigating the potential political or economic repercussions of violating international law. One might, of course, argue that this maslahat-driven policy on apostasy is selective, particularly in light of Iran's continued implementation of Islamic corporal punishments that undeniably conflict with international human rights standards. However, in the specific case of the omission of apostasy from the IPC, the Islamic Republic's decision appears not only as an effort to fulfill international obligations but also as a calculated strategy to protect the state's long-term interests, which aligns with the very essence of maslahat.
That being said, the fact that a maslahat-oriented legislature has yet to criminalize apostasy, given the aforementioned considerations, should not obscure two critical provisions that merit careful attention. Article 220 of the IPC stipulates that for hudud punishments not explicitly mentioned in the law, actions shall be taken in accordance with Article 167 of the Constitution. Under Article 167, judges are empowered to issue rulings based on authoritative Islamic sources and authentic fatwas in the absence of a specific legal statute.Footnote 131 Consequently, although apostasy is not explicitly criminalized in the IPC, as I have discussed in detail elsewhere, a judge may still sentence an apostate to death by invoking established Shiʿi jurisprudential sources—such as al-Lumʿa al-Dimashqiyya—as the legal basis for the punishment.Footnote 132
The role of theocracy in shaping maslahat: the influence of subjectivity
In view of what we have canvassed, it is apparent that three pivotal governmental bodies—the Expediency Council, parliament, and the head of the judiciary—have strategically leveraged maslahat to adopt or modify policies, practices, and laws in response to domestic demands, international standards, and societal expectations. The examined examples illustrate a gradual incorporation of maslahat-driven reforms and innovations into the Iranian legal frameworks, notwithstanding theoretical and doctrinal challenges posed by traditional Shiʿi jurists. As observed, although these initiatives are not devoid of limitations, they signify a trend toward relatively progressive approaches to addressing societal realities and demands within the Iranian government. Some Iranian legal scholars view these maslahat-driven initiatives as indicative of a shift toward legal realism and the prioritization of pragmatism over strict adherence to sacred sources (naṣṣ).Footnote 133
As far these maslahat-driven initiatives are concerned, I concur that Shiʿi theocracy has indeed reshaped its legal landscape and institutions by employing maslahat to align certain laws with evolving societal needs and international human rights norms. However, the controversial point remaining is the extent to which maslahat can be discerned through human intellect without clear guidance from revealed texts. This epistemologically fundamental question, raised by critics of maslahat, emphasizes that its application does not always yield positive outcomes, as maslahat itself lacks inherent progressiveness.
Viewing maslahat in this light, Ghobadzadeh warns that although “Khomeini's idiosyncratic form of secularization intends to serve the expediency of the state, the latter may not necessarily comply with the nation's expediency. Any attempt to equate state expediency with the nation's expediency in an authoritarian regime could prove problematic.”Footnote 134 Some religious scholars have also raised alarm over the unchecked use of maslahat, likening it to a potent weapon that could be easily wielded to infringe upon the private sphere. They caution that if maslahat-e nezām (the interest of the state) is deemed to outweigh the mandates of shariʿa, it could imply that the theocratic state is even justified in temporarily suspending shariʿa injunctions when deemed beneficial to its interests. Consequently, should state interests demand it, the scrutiny of personal affairs and private lives would not only be permissible but even obligatory.Footnote 135 As one scholar put it, “Uninhibited claims of public interest—especially if undertaken by a religious state—are the biggest threat to private life and permitted freedoms.”Footnote 136
The remainder of this paper illustrates these concerns through several instances in which the application of maslahat by Iranian authorities has led to controversial outcomes, including the enactment of more stringent penal policies. Indeed, the absence of a definitive and objective criterion for identifying maslahat significantly contributes to these outcomes. This ambiguity may explain why the Expediency Council rarely provides detailed explanations in public statements or on its website regarding the rationale behind its identification of maslahat in their decisions.
Concerned about these controversial outcomes, some scholars have endeavored to establish more precise criteria for discerning maslahat, proposing frameworks to guide its application in particular cases and contexts. Let us briefly explore the essential determinants (ḍawābiṭ) that define the boundaries of maslahat, as articulated by two Sunni scholars, both classical and contemporary: al-Ghazali and Shaykh Ramadan al-Buti. According to al-Ghazali, maslahat must be certain (qaṭʿī), universally applicable (kullī) to all believers, and necessary (ḍarūra) for safeguarding fundamental aspects of human existence such as religion, life, intellect, offspring, and property. Legal principles concerning mere need (ḥāja) or improvement (taḥsīn) in these domains cannot serve as the basis for deriving laws unless explicitly supported by the Qurʾan or hadith. Al-Buti, following closely al-Ghazali's model of maslahat, further asserts that valid maslahat cannot contradict established rulings from the Qurʾan, Sunna, or correct legal analogy. He permits the adaptation of existing laws derived from the Qurʾan or Sunna to new circumstances exclusively through specification (takhīṣīṣ), a method that incorporates principles such as alleviating hardship (mashaqqa), necessity, or facilitation (taysīr). According to al-Buti, any ruling based on specification must be firmly grounded in the texts of the Qurʾan and Sunna.Footnote 137
In establishing guidelines to delineate the boundaries of maslahat, some Shiʿi scholars believe that maslahat should adhere to both primary Islamic rulings (ahkām-e avali) and secondary rulings (ahkām-e sānavi-ye), ensuring its consistency with shariʿa principles.Footnote 138 Furthermore, it is contended that maslahat considerations should be employed in the process (tarjīh) of prioritizing the most urgent need when multiple conflicting legal principles or decisions apply to a situation.Footnote 139 Other scholars have expanded on the criteria for discerning maslahat, asserting that its application should be rational, address pressing needs, yield enduring positive outcomes, and have a broad societal impact. This implies that maslahat should comprehensively benefit various sociopolitical aspects of the polity. Additionally, they emphasize that maslahat must be grounded in expert knowledge and the opinions of specialists across diverse fields of knowledge.Footnote 140 Some scholars further stress the importance of establishing stable legal boundaries that safeguard individual rights, which should not be violated by the state under any circumstances. These boundaries must remain fixed and unalterable. The institutions responsible for determining public interest should be independent from the state to prevent the politicization of religion. Such institutions must also be accountable to other legal bodies and subject to the supervision of civil society.Footnote 141
Some other scholars argued that Muslims should refrain from beginning their assessment of maslahat with a self-centered perspective focused solely on personal opinions, contemporary needs, or the proclivities and contingencies of their time. They should avoid evaluating or categorizing maslahat exclusively on these grounds, divorced from divine textual sources and their inherent values. Such an approach risks significant divergence between textual sources and the interpretation of maslahat.Footnote 142
The endeavor to establish criteria for maslahat as a framework for public policies underscores its inherently abstract, subjective, and interpretive nature.Footnote 143 This abstraction allows maslahat to be molded like wax by authorities, who can shape it to align with their ideological leanings. Influenced by the proclivities and contingencies of contemporary times, alongside the uncertainties and discretion of legal and political authorities, maslahat becomes subject to the whims of instrumental considerations. Metaphorically, it functions like a scalpel capable of either causing harm or fostering healing, depending on the wielder. In this light, the utilization of maslahat by entities such as the Expediency Council, parliament, and the head of the judiciary heavily depends on their diverse and evolving perspectives on religious, political, and societal issues when deliberating upon and implementing it.
Referring to the perspectives of Muslim scholars Adis Duderija and Gamal Edin Attia, Felicitas Opwis effectively illustrates how the abstract and subjective nature of maqāṣid-cum-maṣlaḥa—a conceptual framework combining the maqāṣid al-sharīʿa (the higher objectives or purposes of Islamic law) with maṣlaḥa (considerations of public interest or welfare)— has led them to contrasting conclusions. Opwis observes, “Duderija and Attia, for example, both identify ‘affection’ (mawadda), ‘compassion’ (rahma), and ‘repose’ (sakīna) as divine objectives in the realm of the family. However, Duderija interprets these purposes as evidence for a gender-egalitarian Islamic family law, whereas Attia employs them to assert traditional gender hierarchies.”Footnote 144
A radical misapplication of maslahat can lead to regrettable deviations from deontological ethical principles, crossing acceptable ethical boundaries. For instance, although the Qurʾan (6:151) prohibits the killing of innocent believers, al-Ghazali argues that shooting and killing Muslim prisoners is permissible if they are being used as human shields by non-Muslims against a Muslim army.Footnote 145 Similarly, in scenarios like an aircraft hijacking aimed at crashing into a Muslim neighborhood, some jurists contend that maslahat justifies killing Muslims used as human shields to prevent harm to a larger number of Muslims.Footnote 146
The diversity of scholarly perspectives on maslahat is mirrored in the range of policies enacted by state authorities, which in turn reflect disparate approaches to its application. Although the inherently subjective nature of maslahat can facilitate the enactment of progressive and adaptive legislation, it also opens the door for potential exploitation by Islamic states. In such cases, maslahat may be invoked to justify repressive measures and draconian laws, often framed as necessary for safeguarding national or religious interests, thereby enabling authorities to pursue policies that may not align with democratic principles or the public good. This subjectivity creates an avenue for authoritarian manipulation of maslahat, particularly by theocratic authorities or even vigilante groups.Footnote 147 Although maslahat provides Shiʿi jurists with the flexibility to respond to contemporary challenges, the absence of a unified consensus regarding its precise definition, coupled with its complex relationship to Qurʾanic principles and Sunni jurisprudence, leaves it susceptible to potential misuse. This lack of clarity allows for a broad interpretation that can justify actions contrary to fundamental human rights or democratic ideals, depending on the political or ideological agenda at play.
In a Shiʿi theocratic setting, in which primary governance objectives diverge significantly from those of liberal welfare states—seeking instead to establish a sin-free Islamic utopia or a society adhering strictly to religious ideals—maslahat may be construed by conservative authorities as a legitimizing tool for achieving these overarching objectives. In such scenario, maslahat may justify paternalistic authoritarianism, societal indoctrination with a prescribed moral code, increased state oversight of the populace, suppression of perceived social vices, and the maintenance of a structured civil order aligned with theocratic ideological standards.Footnote 148
Maslahat grants the Expediency Council, parliament, and the judiciary the authority to enact laws and policies ostensibly for the public good, even when these decisions may not align with popular sentiment. One prominent example of such decisions is Iran's anti-Western policies at the international level, which are often justified by a maslahat-oriented ideology. Although these policies may not always align with popular opinion or reflect the preferences of certain segments of society, they are framed as vital for safeguarding national sovereignty, preserving the ideological integrity of the Islamic Republic, and resisting perceived Western hegemony. Under this framework, the leadership argues that prioritizing the state's long-term interests and religious values—sometimes at the expense of broader public approval—is necessary to protect Iran's independence and cultural identity from foreign influence.Footnote 149
Within this paternalistic framework, theocracy may not acknowledge citizens as architects of their own maslahat; instead, maslahat is utilized as a mandate to advance the righteous salvation of adherents, even in cases in which citizens may be indifferent or apathetic regarding their perceived obligatory deliverance to Heaven. Consequently, maslahat may justify punitive measures in law enforcement and criminal justice, such as strategies including “broken windows,” “three strikes,” “zero tolerance,” and “truth in sentencing.” Furthermore, actions violating human rights, such as the torture of political adversaries, suppression of freedom of expression, and quelling of political dissent, may be justified on the grounds of maslahat.Footnote 150
The enforcement of a zero-tolerance penal policy targeting political and social opposition groups from February 11, 1979 (the outset of the revolution) through 1983 stands as a notable example. In this phase of revolutionary justice, maslahat—interpreted here as serving the interests of the theocratic state—dictated the imperative for a repressive approach. As noted by Bojnordi and colleagues, “the Revolutionary Court prosecuted criminals quickly, outwitted standard criminal procedures, and carried out harsh punishment for crimes against the Revolution.”Footnote 151 A zero-tolerance and punitive policy was enforced, particularly concerning areas such as alcohol consumption, drug trafficking, hijab (Islamic head covering), and crimes perceived as threats to the Islamic government. During this period, capital punishment was frequently imposed, and the judicial processes were accelerated. For instance, under Article 8 of the revolutionary court regulations enacted in 1980, defendants were granted a mere fifteen hours to prepare their defense following accusation and prosecution.Footnote 152 Ayatollah Khalkhali, in his capacity as chief justice of the revolutionary courts, handed down some of the harshest sentences. His swift adjudication of cases and severe punishments epitomized what became known as the “Khalkhali method” or “Khalkhalism punitiveness,” symbolizing the rapid and rigorous application of maslahat-driven revolutionary justice.Footnote 153
The implementation of rigorous policies based on maslahat extends well beyond the period of revolutionary criminal justice, as evidenced by the 2013 Islamic Penal Code. A significant departure from prevailing Shiʿi jurisprudence in this code was the introduction of a new hadd crime termed “corruption on earth” (efsād-e fi al-arz).Footnote 154 Previously, distinctions between the punishments for waging war against the Islamic state (mohārebe) and for corruption on earth were absent. The introduction of this newly established ipse dixit hadd allowed for its imposition on individuals involved in crimes such as disrupting economic order, threatening internal or external security, or disseminating false information. This departure created a discrepancy that lacks coherence with either reason or scripture.Footnote 155 The driving force behind this departure was primarily maslahat, as recognized by certain Iranian jurists.Footnote 156 Arguably, the maslahat of the state was deemed so significant that the legislator introduced a hadd punishment, departing from prevailing Shiʿi jurisprudential opinions. As a result, this legislative shift granted judges considerable discretion to impose the death penalty on offenders who, for technical reasons, did not fall within the category of those waging war against the Islamic state.
Article 23 of the Islamic Penal Code provides another compelling example of how maslahat influences the formulation of a more punitive penal policy. This article permits judges to impose supplementary punishments, also known as ancillary or additional penalties, on offenders convicted of crimes punishable by qisas or hudud punishments. These supplementary penalties serve various purposes, including rehabilitation, deterrence, and safeguarding societal protection. Importantly, this allowance diverges from the traditional Islamic law principle governing hudud and qisas punishments, which traditionally do not permit supplementary penalties alongside these prescribed punishments. Many Iranian scholars argue, quite rightly in my view, that this departure was motivated by maslahat.Footnote 157
One of the most significant reforms in Iran's legal system was initiated by Ayatollah Shahrudi, the head of the judiciary, who for the first time defined “political crimes” to prevent political dissidents from being prosecuted under charges such as baghy (rebellion) or moharebe (waging war). The process began in 2005, with discussions on the political crimes bill, which was referred to the Expediency Council for review. By 2006, the bill was nearing completion and set to be presented to the government. In 2008, during the final days of Shahrudi's tenure, the bill was passed, marking a key shift in Iran's legal framework. This led to the formal approval of the political crimes law by the Iranian Parliament in 2016.
In spite of this reform, the criminalization of baghy in the IPC continues to reflect the influence of maslahat. As Naser Ghobadzadeh noted, in Shiʿi political thought, “the subject of revolt has been discussed under the heading of baghy and insurgency, an expression with largely negative connotations used to describe a rebellion against [the] infallible Imam.”Footnote 158 The crime of baghy is jurisprudentially distinguishable from moharabe due to the nature of the offenses. As Kadivar explains, the key difference between a bāghi (rebel) and a mohareb (one who engages in violent resistance) lies in their motivations: a mohāreb disrupts public security through actions driven by personal interests, such as theft or banditry, with no ideological basis. In Qur'anic terms, a thief or armed bandit is considered a mohāreb. In contrast, a bāghi engages in political opposition to the government based on a political theory—whether valid or not. Therefore, baghy involves political dissent driven by ideology, whereas moharabe is primarily an act of violence motivated by personal gain.Footnote 159 He also claims that “we have no penal code (hadd in shariʿa) that calls for the execution of the bāghi outside the battlefield.”Footnote 160
Nevertheless, pursuant to Article 287 of the IPC: “Any group that makes armed rebellion against the foundation of the system of the IRI shall be deemed to be rebel. And, should it use arms, its members will be sentenced to the death penalty.” Additionally, Article 279 of the IPC criminalizes mohārebe as follows: “Armed violation of the public security means drawing weapons with the intent of taking life, property or a female member of the people, or threatening them, in such manner that results in insecurity in the environment. When a person draws a weapon on one or more specific person(s) for personal motive, and his or her act has no public aspect, as well as when a person draws a weapon on the people, but owing to inability does not create insecurity, he or she will not be deemed an armed violator of the public security.”
Legal scholar Jalil Omidi objects to the criminalization of baghy (rebellion), arguing that the death penalty for baghy is not justifiable from a religious perspective, asserting that criminalizing baghy in this way is based on utilitarian considerations aimed at serving political purposes.Footnote 161 Substantiating the claim, Omidi refers to the Qurʾan (49:9) and the modus operandi of Imam Ali dealing with his opponents during his caliphate.Footnote 162 Similarly, Kadivar emphasizes that jurists in Islamic jurisprudence have outlined conditions for the punishment of baghy. According to him, the proper response to rebellion should begin with intellectual engagement: one must first engage in debate, dialogue, and efforts to convince the rebel. Baghy, as he explains, refers to individuals opposing the state based on a particular interpretation or theory, and the first step in addressing rebellion is to engage with these ideas, rather than resorting immediately to punitive measures.Footnote 163
Indeed, as has been argued, in cases of both moharabe and baghy, the very important jurisprudential rule of precaution in matters of bloodshed (ehtiat dār damaʿ) has been subordinated to maslahat.Footnote 164 Some Iranian scholars also contend the Islamic jurisprudential rule of dar'e (the rule of avoiding punishment in cases of ambiguity) has been overlooked or violated in these contexts, prioritizing maslahat over this rule.Footnote 165 According to the rule of dar'e, punishment will not be imposed when there is an aura of ambiguity around the occurrence of the crime, criminal liability, attributability, or whether the offender deserves to be punished—for any given reason. The prioritization of maslahat over established Islamic jurisprudential principles, such as dar'e, serves not only legal but also political objectives. By subordinating these foundational rules to the overarching goals of state stability and the consolidation of power, the IRI effectively criminalizes opposition under the pretext of legal necessity. In this framework, maslahat becomes a political instrument, allowing the state to suppress dissent by reinterpreting it as a threat to national security and the integrity of the Islamic order.Footnote 166
The final example concerns Ayatollah Khomeini's fatwa regarding Salman Rushdie. It is widely recognized among Shiʿi jurists that hudud punishments should not be enforced in enemy territories due to the potential defamation of Islam (vahn-e eslām). This principle finds support in hadith attributed to Imam Ali: “Divine hudud should not be carried out in the territory of the enemy, for it is probable that the criminal on whom the punishment is imposed will join the enemies of Islam.”Footnote 167 Jurists advocating for the enforcement of hudud exclusively within the house of Islam (dār al-Islām) assert that Imam Ali, renowned for his judiciousness, was keenly aware of the potential repercussions of applying hudud outside this domain.Footnote 168 Despite the consensus among Shiʿi jurists on the inadmissibility of implementing hudud outside the house of Islam, Ayatollah Khomeini issued a fatwa urging all zealous Muslims to promptly execute Salman Rushdie, the author of the book Satanic Verses, regardless of their location. Iranian jurist Hamed Rostami notes that Ayatollah Khomeini's fatwa concerning Rushdie was grounded in the maslahat of Islam. In this context, maslahat was interpreted by Ayatollah Khomeini as solely aimed at protecting Islam against Rushdie, whom he deemed a blasphemer, to prevent further insults to Islamic sanctities.Footnote 169
Conclusions
Following the establishment of the Islamic Republic of Iran, Shiʿi jurists found themselves compelled to reassess and adapt certain earlier rulings. They acknowledged the inherent challenges of applying classical jurisprudential decrees within a modern Shiʿi state, recognizing that not all opinions of classical jurists or rulings derived from Qurʾanic and hadith sources remained relevant or applicable in contemporary contexts. For instance, to the best of my knowledge, the punishment of crucifixion prescribed in the Qurʾan (5:33) has never been implemented by Iranian authorities. Theocrats have bitten the bullet and accepted that they have no choice but to reassess and, where necessary, reformulate the Islamic legal tradition if they want to effectively address present-day sociopolitical challenges.
To address these challenges, despite doctrinal controversies among Shiʿi scholars regarding the extent of maslahat's application, it was the concept of maslahat in its legal-political sense that significantly influenced the formulation and enactment of new laws and policies. However, the principle of maslahat has been invoked in an expansive and often utilitarian manner, frequently serving as a tool for pragmatic justification. In the context of Shiʿi theocracy, maslahat has been particularly justified on the grounds of its role in safeguarding the Shiʿi theocratic state and protecting the integrity of the religion from defamation. By invoking maslahat, Shiʿi authorities can justify decisions that may otherwise appear to conflict with traditional interpretations of Islamic law, particularly when they are seen as essential for the preservation of the state and religion. In this way, maslahat becomes a flexible tool, allowing for the balancing of religious principles with the practical demands of governance.
With the establishment of a Shiʿi theocratic state, particularly through the Expediency Discernment Council, maslahat ceased to be a subject of debate regarding methods of interpreting the law; instead, it evolved into an ideology guiding actions and policies beyond the legal jurisdiction of individual jurists. In contrast to the premodern era, when decisions on the conformity of rulings with maslahat were exclusively within the purview of individual jurists, the responsibility for considering maslahat in practice shifted to the theocratic state. This transition was evident in the state's implementation of policies, legislation, and establishment of institutions aimed at protecting the interests of Islam, the state, and its populace. It is no longer individual jurists who determine the alignment of specific rulings or actions with maslahat; rather, it is the state that bears the responsibility for ensuring this alignment is realized.
The shift from traditional maslahat discernment to a constitutional theocratic approach has profoundly shaped how maslahat is applied. In the premodern era, the flexibility of maslahat in extending or adapting the law depended on how jurists integrated it into their process of interpreting the law. The capacity of maslahat to induce legal changes was contingent on a jurist's perspective on the interplay between reason and revelation in law interpretation.Footnote 170 Today, however, the adaptation of maslahat to new situations or evolving circumstances is significantly influenced by a complex of domestic values, international pressures, and authoritarian predilections. This is evident in various instances, including the application of stoning as a punishment, regulations governing the legal age of marriage, the rights of religious minorities to participate in elections, zero-tolerance penal policies, and more stringent legislation. These examples underscore how maslahat is navigated within the framework of Iranian Shiʿi theocracy, marking a departure from purely doctrinal interpretations to considerations that encompass broader governmental, societal, and international contexts.
The integration of maslahat into the modern political-legal framework signifies a notable departure from traditional Shiʿi idealism to Shiʿi theocratic pragmatism. This pragmatism is evidenced in several dimensions: in the case of blood money, it signifies a clear legislative departure from established Shiʿi jurisprudence; in the instances of stoning and the legal age of marriage, it represents a compromise that retains elements of Shiʿi legal principles; and in the Hanaei case, it demonstrates a judicial approach. These examples illustrate a progressive trend toward balancing the implementation of divine law with the demands of popular sovereignty. Nonetheless, certain cases, especially those involving penal policy, underscore that maslahat can also result in the enactment of stringent and authoritarian penal measures.
In addition to the areas in which maslahat has been either positively or negatively applied by the Shiʿi theocracy, there remains a domain in which maslahat has not yet been utilized—specifically in relation to hudud punishments, which include flagellation, amputation of limbs, and hanging. One significant reason for the absence of maslahat in the application of hudud punishments may be their symbolic and expressive significance. Islamic law scholar Mohammad Fadel's observation on this matter is particularly relevant: “Because of the categorical nature of the penalties, and probably because they have come to symbolize Islam, many Islamic political movements have made vocal demands for the application of these penalties as proof that the legal system is Islamic.”Footnote 171 Notwithstanding their symbolic importance and expressive function, if there is a growing social aversion to hudud punishments and increasing domestic or international pressure against punitive measures like flagellation and limb amputation, the theocratic state might find itself compelled to invoke maslahat to halt the implementation of these Islamic punishments. Iran might then transition to becoming a hudud-free country.
As a final remark, I wish to underscore the thesis articulated by the Iranian reformist and philosopher Abdolkarim Sorush regarding the application of maslahat within the Shiʿi theocracy. To Sorush, the only viable solution for removing outdated jurisprudential precepts is the substantial revision of Islamic jurisprudential presuppositions and premises. In his study on Islamic jurisprudence, he opines that “palliative treatment” that fails to address the underlying causes does not ameliorate the situation. Maslahat-driven measures, he argues, prove ineffective because what is improved due to a particular maslahat will be undermined due to some other or more important maslahat. He proposes that the most crucial maslahat must be a fundamental revision of Shiʿi jurisprudential ontology, anthropology, and epistemology. In his opinion, Iranian theocrats should rethink their core convictions and perspectives on human rights and dignity. As long as one neglects rational scholastic theology, the application of maslahat and resort to other stratagems will result in nothing but a “disorderly and messy pragmatism.”Footnote 172
Acknowledgments
I would like to express my sincere gratitude to the distinguished scholars who provided invaluable feedback during the development of this paper. An earlier version was written at Yale Law School, where I benefited from the insightful comments of Professors Owen Fiss and Aslı Bâli. The paper was subsequently refined at Harvard Law School’s Program in Islamic Law, with the exceptional intellectual support of Professor Intisar Rabb. I am also deeply grateful to Professor Nasrin Rahimieh for her thoughtful editorial support throughout the process.
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