Editor-in-Chief Lecture
Author
Professor, Faculty of Law, Shahid Beheshti University, Tehran, Iran
Abstract
The Iranian Constitutional Revolution was a unique phenomenon in the region. The background of this revolution must be sought in the country's long-standing structural problems and the intellectual and political developments of that time. Although certain rules and mechanisms of political and administrative reforms, i.e. those of the "regulatory system", were adopted from the Ottoman Empire, Iranians were attracted by the idea of constitutionalism. At the centre of this idea was the negation of despotism. If despotism represented arbitrary rule, constitutional thought sought to establish a law-based order. On the other hand, constitutionalism sought rights and freedoms for all members of society. A considerable number of intellectuals and clerics became aware of the ideas and discussions contained in the works of modern Europeans and the writings of Muslims such as Abd al-Rahman Kawakibi in "The Nature of Tyranny". They then drew on French and Belgian legal systems; consequently, the Constitutional Decree (24 July 1906) and then the Constitution (the same year) and its Amendment (the following year). Under the Amendment, the people of Iran were referred to as the "nation" for the first time and some "rights" were recognised for them. Also, in that text, the monarchy was defined as a divine trust that was delegated by the nation to the king. The separation of powers, the legislative authority of the National Council and the Senate, and national courts of justice were other after the Constitutional
Revolution, not only did Iran not have a genuine evolving constitutional system, but for about two decades after that event, an absolute monarchical system was formed. New laws and institutions existed in the country, but the power relations and the way of governance had not been formed based on the constitutional system, and the rights of the people were not protected on that basis. Collective interests were also easily sacrificed to foreign powers. As a result, for example, an American-British Coup (18 August 1953) was the reaction to the national cause of oil industry nationalisation, which toppled the government of Dr. Mohammad Mossadegh; a coup that was undoubtedly one of the causes of the formation of the Islamic Revolution (12 February 1978).Nevertheless, despite all the said failures, it can be claimed that (historically speaking) elements of a new public law system were formed in the country and became the basis for subsequent growth and prosperity in this area. The articles in this issue of the journal also seek to demonstrate the role of constitutionalism in the formation of a new public law system and its development in the country in that era and in the following decades.Having said that, an important question arises here: why was a genuine constitutional system not formed in the country? The central point should be sought in the distinction between the philosophy of constitutionalism, on the one hand, and the legal system that provides this philosophy, on the other. The Iranians had correctly understood that the content and nature of governance should be directed away from arbitrariness, discrimination, and (in a word) oppression, towards a direction that would (while being effective) meet the requirements of justice. They had sensed these requirements in the philosophy of constitutionalism. However, in the words of the late Professor Hamid Enayat, the knowledge of those principles and that philosophy remained the missing link of the constitutional revolution in the country. The constitutionalists may have become familiar with some legal arrangements and rules and political and legal institutions consistent with the theory and philosophy of constitutionalism, but the essence of the idea remained neglected.It should be noted that two local issues were also neglected: accurate knowledge of the context of the country; and its public and political culture. Were they compatible with the constitutional beliefs and resulting institutions?Finally, to expand and deepen the role of the Constitutional Revolution in the development of public law in the country, it seems necessary to conduct research on the “constitutional philosophy”,on the one hand, and the “contextual requirements” of the growth of the constitutional legal and political system in Iran, on the other.
