Theocratic Grundnorms and the Rigidity Conundrum
Md. Faraz Ali
The modern legal order has mostly critiqued the Kelsenian approach of the Grundnorm because of its elusiveness, as it posits a singular source in a world filled with diverse origins and explanations of norms. However, the order cannot deny the theory’s inherent applicability.[1] Through his theory, Kelsen argues that in any normative society most of the inherent norms are derived from a superior norm (referred to as the Grundnorm).[2] He argues that all of the major norms of a society derive their origins from said Grundnorm. Thus, for a constitutional democracy like India, the Grundnorm shall be the Indian constitution,[3] as other legal norms are traced from the Constitution. However, the model that applies rather conveniently on Constitutionalist nations with written declarations, struggles in matters of the divine. The question of applicability of this theory on a theocracy is not majorly discussed in the sphere of jurisprudential research. However, the lack of research on the question does not negate the question altogether. This piece initially begins with an attempt at defining a theocracy and determining the factors mandating its manifestation. After which, we attempt to trace the Grundnorm of the middle eastern nation of Iran. The reasoning behind choosing Iran for this attempt is its rising relevance in the global geopolitical landscape. We finally conclude this piece by pointing out the issues with a theocratic Grundnorm which stems from its inherent rigidity.
The Determinants of a Theocracy
A theocracy is a form of governance where authority is directly derived from a deity. It matters not whether the authority is monotheistic or polytheistic; as long as it is divinely derived, the governance model is classified as theocratic.[4]
However, terminological confusion often arises as it is widely, though mistakenly, believed that a nation with a state religion automatically qualifies as theocracy.[5] This is untrue, as merely having a state religion is not a determining characteristic of a theocracy. One universally consistent factor in theocratic systems worldwide is the inseparability of the state and religious institutions. For instance, a nation with Islam as its state religion but operating under a legal framework based on English common law is not a theocracy.[6] Pakistan serves as a pertinent example of this dynamic. While the country prominently asserts its Islamic foundation and identity, a closer examination reveals that its legal and punitive administration largely adheres to English common law principles, a legacy of its colonial past.[7] In a theocratic nation, laws must be derived directly from divine principles. This is an absolute criteria that fundamentally defines a theocracy.
The Rigidity Conundrum
Thus, it is abundantly clear that the only avenue for deriving legal principles in a theocracy are divine revelations. The Middle Eastern nation of Iran is an impressive example of a classic theocracy.[8] It passes the dual test of determination; firstly, it derives its authority directly from the Quran, as is confirmed in Article 1 of the Iranian Constitution:
“The form of government of Iran is that of an Islamic Republic, endorsed by the people of Iran on the basis of their longstanding belief in the sovereignty of truth and Qur'anic justice…”[9]
Secondly, the state and the religion are intrinsically connected and the laws presented in the Constitution are directly derived from the Quran.
Having a divine revelation as a Grundnorm has an inherent issue which derives from the general nature of theocracies. Whenever a legal order gives authority to a divine will or revelation it makes that norm unquestionable. So, if the Grundnorm of a nation is the Holy Quran, then people are incapable of questioning it due to the inherent immobility of the revelation.[10] This also provides the administration with an opportunity to evade responsibility and deny transitions by stating that the Grundnorm does not allow it. The denial of social change such as the protest against the compulsory hijab provisions effectuated by the clergy in Iran[11] is primarily backed by this very immobility,[12] and without a political revolution (the recommended way of changing a Grundnorm according to Kelsen),[13] a holistic transition of the nation with current societal norms is unfortunately an impossibility.[14] To even allow such a holistic transition is certainly unacceptable to the traditionalist viewpoint. The general opposition to societal transition in the Islamic nation of Saudi Arabia by the clergy is based on this very viewpoint.[15] So, how do we ensure that a nation with a theocratic Grundnorm is susceptible to change? The answer is rather complex, as the very first action needs to be a generalist intention to open up and liberalize the interpretation of said revelations.
Transitions within a Grundnorm can also be achieved through amendments and legal interpretations. However, these transitions are only possible if they are accepted by society. This has been observed in the western world which has now transitioned into a more liberalistic society.[16] On the other hand, such changes are unfortunately difficult to achieve in theocracies due to the inherent rigidity within the interpretation of the revelations that form their Grundnorm. A revolutionary transition is considered to be a more suitable form for the transition of a Grundnorm. This change must be abrupt and must not derive from an inherent element of the constitution.[17] This has been the reality of nations like France, Russia or even Iran for that matter. All of the nations have gone through revolutions to effectuate a transition. For example in Iran, before the Islamic revolution led by Ruhollah Khomenei, the nation was a monarchy (the Shah) and had a different Grundnorm altogether i.e. the monarch.[18] However, the revolution ensured a swift transition and turned the nation into an theocracy which now has a divine Grundnorm. This also essentially proves that a revolutionary transition might be the most successful way of ensuring that the rigidity of the nation’s Grundnorm does not act as a deterrent to progress. The current theocratic autocracy in Iran can be transitioned in the same way it was brought in – by the people. This might not work in a transition effectuated by the judiciary or the legislature without the people’s support as inevitably it is the people who are directly affected through the implication of a Grundnorm.
This has been established by various scholars like Hugo Grotius, Hobbes and Samuel Pufendorf who state that the primary pillar to modern political legitimacy is the consent of the people who are affected by it. As stated by Grotius in his celebrated work On the Law of War and Peace:
“But as there are several Ways of Living, some better than others, and every one may choose which he pleases of all those Sorts; so a People may choose what Form of Government they please”[19]
The people’s consent shall always remain the primary tool of the legitimacy of any Grundnorm and the people themselves are the most capable of changing it.
Conclusion
The rigidity inherent in theocratic Grundnorms, such as the Holy Quran in Iran, poses significant challenges to societal evolution and legal reforms. The immobility of divine authority often hinders adaptability, making transitions contingent on either revolutionary societal shifts or a collective willingness to reinterpret foundational principles. However, fostering a culture of open discourse and progressive interpretation within such systems is essential to align with the contemporary societal needs, though achieving this remains a complex and arduous endeavour.
[1] Kristina, ‘How does the Grundnorm fare? : towards a theory less pure’ , 2018, EUI, LAW, PhD Thesis, CUFAR, Florence : European University Institute, < https://hdl.handle.net/1814/59113> accessed 20 December 2024.
[2] ‘The Pure Theory of Law’ (Stanford Encyclopedia of Philosophy) 18 November 2002) <https://plato.stanford.edu/entries/lawphil-theory/#BasNor> accessed 20 December 2024.
[3] Government Of Andhra Pradesh & Ors vs Smt. P. Laxmi Devi, 2008 (4) SCC 720.
[4] ‘Theocracy’ (Britannica) updated 4 January 2025 <https://www.britannica.com/topic/theocracy> accessed 21 December 2024.
[5] Metin M. Coşgel, Richard N. Langlois, Thomas J. Miceli, ‘Identity, religion, and the state: The origin of theocracy’, 2020, Vol 179, Pag 608-622, Journal of Economic Behaviour & Organization, Elseveir, <https://doi.org/10.1016/j.jebo.2020.09.026> accessed 23 December 2024.
[6] ‘Common Law’ (Britannica) updated 15 January 2025 <https://www.britannica.com/topic/common-law> accessed 24 December 2024.
[7] ‘Pakistan can never be a Theocracy’ (Jinnahs Pakistan) <https://www.jinnahspakistan.com/not-a-theocracy> accessed 24 December 2024.
[8] Stanly Johny, ‘Iran: Limited democracy, unlimited theocracy’ (The Hindu) 3 July 2024 <https://www.thehindu.com/news/international/limited-democracy-unlimited-theocracy/article65947879.ece> accessed 24 December 2024.
[9] The Constitution of the Islamic Republic of Iran, Article 1, 1979 (rev. 1989)
[10] Kali Robinson, ‘Understanding Sharia: The Intersection of Islam and the Law’ (Council of Foreign Relations) 17 December 2021<https://www.cfr.org/backgrounder/understanding-sharia-intersection-islam-and-law> accessed 24 December 2024.
[11] ‘Iran: New Hijab Law Adds Restrictions and Punishments’ (Human Rights Watch) 14 October 2024 <https://www.hrw.org/news/2024/10/14/iran-new-hijab-law-adds-restrictions-and-punishments> accessed 24 December 2024.
[12] Hamidreza Azizi , Erwin van Veen, ‘Iran in transition: The Islamic Republic is no more while it lives on’ (Clingendael) 23 March 2023<https://www.clingendael.org/publication/lost-transition-where-might-iran-be-heading> accessed 24 December 2024.
[13] Mridushi Swarup, ‘ Kelsen’s Theory of Grundnorm’ (Manupatra) <https://drive.google.com/file/d/1sPdOmS3PGZiqRLgtoQaG1x0nRWQmQtii/view?usp=sharing> accessed 24 December 2024.
[14] J.W Harris, ‘When and why does the Grundnorm Change?’ 1971, 29(1), pp. 103–133, The Cambridge Law Journal, <https://doi.org/10.1017/S0008197300089340> accessed 20 December 2024
[15] Ben Hubbard, ‘Saudi Prince, Asserting Power, Brings Clerics to Heel’ (New York Times) 5 November 2017 <https://www.nytimes.com/2017/11/05/world/middleeast/saudi-arabia-wahhabism-salafism-mohammed-bin-salman.html> accessed 24 December 2024.
[16] Laurence Whitehead, ‘Introduction: Some insights from Western social theory’, 2020, Vol 21, Iss 8, Pag 1245-1261, World Development, Elseveir, <https://doi.org/10.1016/j.jebo.2020.09.026> accessed 23 December 2024
[17] J.O Rachuonyo, ‘Kelsen’s Grundnorm in Modern Constitution-Making: The Kenya Case.’ 1987, Vol 20, Iss 4, Pag 416-30, Verfassung Und Recht in Übersee / Law and Politics in Africa, Asia and Latin America <http://www.jstor.org/stable/43109704> accessed 13 February 2025.
[18] Janet Afary, ‘Iranian Revolution’, (Britannica), updated 10 February 2025, <https://www.britannica.com/biography/Mohammad-Reza-Shah-Pahlavi> accessed 13 February 2025.
[19] ‘Political Legitimacy’ (Stanford Encyclopedia of Philosophy) 29 April 2010, <https://plato.stanford.edu/entries/lawphil-theory/#BasNor> accessed 13 February 2025.