Jisha Sarkar
Jisha Sarkar is a student of Law at the University of Calcutta. She has a strong foundation and experience in social justice litigation. Her research interests lie in comparative constitutional law and critical normative jurisprudence. She also teaches debate to school children at her alma mater.
What to Wear in the Islamic Republic of Iran: A Debate on Legitimacy, Authority, and Public Morality
Article 5 of the Constitution of the Islamic Republic of Iran upholds the principle of velayat el-faqih (guardianship of the jurist).[1] This principle grants the Supreme Leader the mandate to wield absolute control over all public matters, including matters of religion. The personal observance of religious obligations is, therefore, subordinate to the adherence of the preferences or commands of the Islamic jurist occupying the high offices in the state of Iran.[2] Despite such a broad scope of powers of the government in Iran, the custodial death of Mahsa Amini[3] has brought the extent of moral authority as well as the legitimacy of the morality police or the guidance patrols into question.[4]
There are two reasons to consider this political question from the lens of critical normative jurisprudence. First, laws and morality intersect.[5] Laws that command the government are legitimate, to an extent, so it is problematic when one comes up short of the other. Second, in a society where moral living is highly desirable for historical and cultural reasons,[6] the legitimacy of the laws that purport to make such a life possible, or that tend to establish public morality, is of primary importance. Moreover, given the magnitude of the protests in terms of the sheer number of women in Iran who have seen fit to publicly flout the laws to stand against the status quo,[7] the impugned laws ought to be examined for their moral legitimacy.[8] By looking at arguments on either side of public morals legislation, I explore the issue of whether the Iranian woman has a moral obligation to obey the laws prescribing codes of dress and thus challenge the authority of the Iranian state to legislate on and police public morals for what may seem the common good.[9]
Are the laws legitimate?
Why must a woman follow the law imposing –for argument’s sake, let us say arbitrary – modes of dress? It is because law is authoritative.[10] But is the law also normatively conventional? In general, there are incentives, justifications, and a variety of reasons to do (or not do) a certain thing; similarly, there are exclusionary reasons to refrain from doing any other.[11] A convention, that is, the thing everyone is expected to conform to, is expected to give the law regularity. In theory, everyone is certain of the state’s motives, knowledge, and judgment and they agree to abide by the state’s choice of course of action. In theory, everyone yields personal choice to follow the superior course—one that has been chosen by their government.[12] In a simplistic sense, the coordination problem is solved and the law becomes legitimate. But how then would the state reconcile its heavy reliance on coercive sanctions to ensure obedience? If the law is legitimate and normatively conventional, it would be safe to say that a reasonable person would follow these laws. They are the right course of action demanded of a good citizen, right? But if this system derives legitimacy from the conventionalist thesis and conventions inform and legitimize the law, then the system should have no place for sanctions coercing actions. Thus, convention is an important determinant of the law.[13]
On the one hand, one could argue that Iranian women should adhere to the dress code because the rules of common practice impose a legal obligation on her. On the other hand, several sections of women disagree on what the convention really requires.[14] Evidently, there are contrary preferences for alternate courses of action that are not prescribed by the law.[15] This tension complicates the issue of conformity. When seeking to fit the convention, conformity with the official dictates is no more a necessity for a woman than, say, considerations of fairness.[16] What a conventionalist would call a necessary justification for authority is no more than a mere use of the law to establish as correct and obligatory a certain personal opinion as convention. Though it may be argued that a tyrannical government is illegitimate, the law has the binding force of authority on painfully coercive sanctions.[17] If the convention cannot be impartially established to hold together the moral fabric of the society, it is not morally binding to abide by them. At best, mere compliance is its only due. In short: in the absence of normative reasons to follow it, there is only a legal obligation – and not a moral one – to follow the law.
The Iranian state purports to impose morality laws in order to bring about a cultural revolution through a resurgence of religious customs equated with ethical values.[18] It is obviously very hard to determine whether the need for a cultural revolution or resurgence of custom is the most relevant reason women should consider in deciding to abide by the laws imposing strict codes of dress. Hence, there is a real problem of legitimacy in the laws imposed by the Iranian government. However, imposition of the laws through coercive means would remain a prerogative of the state if there are “weighty moral reasons” for so doing.[19] The enforcement of public morals may be one such reason.
Are the laws making women moral?
Let us begin with the oft-debated question of the authority of the state to enforce public morals through the regulation of private acts of individuals. The liberal arguments against public morals legislation draw legitimacy from the constitutional rights of liberty, personal autonomy, and as Dworkin has argued, equality.[20] Such arguments would hardly hold water in the paradigm of Islamic constitutional values in the state of Iran, where conservative thinkers in the public morals debate argue that the morality of the civil society imposes a burden on every individual to adhere to certain moral standards for the common good.[21] This is the justification that the state may legislate and enforce morality.
If we position the Iranian dress debate in this context, the only reason the state may have to let guidance patrols loose upon the population is if the private decision of a woman to dress a certain way – say, to wear a particularly ill-fitting or well-fitted robe or to leave a certain proportion of her hair uncovered – may have a corrosive effect on the morality of the populace as a whole. There are three possible objections to such autonomy of decision-making. First, one might object by saying that it is wrong to dress except in the state-sanctioned ways. A person saying this may claim the state has an obligation to “command the right and forbid the wrong,” a principle called the hisbah.[22] Second, one might hold that it would encourage other women to adopt similar lack of regard for norms of proper attire. Third, one could say that certain institutions, such as the authorities prescribing such codes of dress, would unjustifiably take a hit from such disregard. All three of these objections are eminently refutable.
On the point of right and wrong, it is safe to say that there is no consensus, even within the Islamic state, on what constitutes the absolutely correct form of dress and the extent to which it is compulsory.[23] As such, the Iranian state clearly seeks to impose a dress code which polices its citizens on obedience despite having no bearing on public good. On the second point, it is true that the tolerance of laxity may allow its widespread adoption. However, even the most orthodox would be hard pressed to demonstrate, without resorting to dogma, that laxity in modes of dress do, in fact, harm the morals of either these women or the rest of the population. What remains is whether the institutions that are devoted to the preservation of the prescribed forms of dress need upholding. My argument here is that such institutions need not be protected to implement a vaunted state goal such as the development of a culture of chastity.[24] The state of Iran ought to explore how adherence to tenets of Islam may be attained without the aid of guidance patrols and indeed, how the process ought to be more organic than coercive.
Moral conflict
The bottom line is that there is, inherent in the society of Iran today, a moral conflict. When people subscribe to different values, each of them may be morally correct in their beliefs. Some believe in their autonomy to choose what to wear and how to conduct themselves; still, others believe this value to be subordinate to the interest of abiding by the conventions.[25] Convention ought to be able to solve this moral conflict; in fact, if the social conduct prescribed by the state were the sum and substance of a widespread belief, the conflict of differing opinions should not have arisen in the first place. Moral conflicts cannot be solved by convention alone,[26] and this conflict is particularly disruptive since large cross sections of people feel wronged when made to abide by these laws.[27] When a multitude of opinions make it difficult to discern a single right course of action – assuming there is one universal “right” answer to moral questions – it becomes the duty of the state to try to solve moral conflicts.[28] In doing so, the state may argue that it only seeks to choose the course of action that it believes will best serve the purposes of distributive justice.[29] In this vein, the state is not ruling on public morals; it is merely trying to achieve the minimum consensus necessary to counter the disruptive effects of the moral conflict. This argument almost allows the actions of the political authority in Iran to be explained away rather persuasively. Almost, but not quite. The flaw lies in the fact that at the same time, the state also seeks to legitimize its laws as conventions – conventions that are purportedly morally binding on its people, conventions which somehow also require coercive sanctions, and conventions that are a subject of a disruptive moral conflict within the society. As demonstrated above, these facts cannot all be true at the same time.
Now what?
To conclude, while enforced through institutional mechanisms, the law as it stands in Iran is morally fallible. Where the laws are not legitimate, they are legally obligatory yet morally indefensible. Where the state has no moral reason to require obedience, it also lacks authority to legislate on public morals. Thus, there is a gap between the laws in question and morality.
On a final and perhaps more practical note, the authority of the state to become enmeshed in matters of morality by making laws that enforce moral standards would ordinarily be beyond question in a theocratic state.[30] The state of Iran, however, is not a full-blown theocratic state. Since there exists some degree of popular sovereignty in government offices, it is a “theo-democratic Islamic state.”[31] Given that the government of Iran must yet at least passingly abide by the preferences of its people, it is only fair that the state reconsider its policies proscribing a woman’s autonomy to choose what she dons.
[1] Constitution of the Islamic Republic of Iran, art. 5, Oct. 24, 1979 (as Amended to Jul. 28, 1989), Oxford Constitutions, https://oxcon.ouplaw.com/display/10.1093/law:ocw/cd749.regGroup.1/law-ocw-cd749?prd=OXCON#law-ocw-cd749-miscMatter-1 (https://perma.cc/3QG6-ZUE4) (“[T]he wilayah and leadership of the Ummah devolve upon the just [‘adil] and pious [muttaqi] faqih, who is fully aware of the circumstances of his age; courageous, resourceful, and possessed of administrative ability.”).
[2] Ervand Abrahamian, Khomeinism: Essays on the Islamic Republic 25 (1993).
[3] See, e.g., Iran protests: Mahsa Amini’s death puts morality police under spotlight, BBC News (Sept. 21, 2022), https://www.bbc.com/news/world-middle-east-62984076 (https://perma.cc/D85U-3C98).
[4] Reports have emerged of certain remarks made by an Iranian official which could be construed to mean that the morality police have been disbanded. However, the official position remains unclear. See, e.g., Siavash Ardalan & Marita Moloney, Uncertainty over Iran’s morality police after official’s “disbanded” remarks, BBC News (Dec. 4, 2022), https://www.bbc.com/news/world-middle-east-63850656 (https://perma.cc/3CYX-9P9F) (last visited Dec 6, 2022).
[5] Tony Honoré, The Dependence of Morality on Law, 13 Oxford Journal of Legal Studies 1 (1993).
[6] Valentina Rita Scotti, Constitutions and Sharia Provisions, in Max Planck Encyclopedia of Comparative Constitutional Law para. 8 (Rainer Grote, Frauke Lachenmann, & Rüdiger Wolfrum eds., 2020).
[7] See, e.g., Agence France-Presse, Women in conservative region of Iran join Mahsa Amini protests, The Guardian (Dec. 2, 2022), https://www.theguardian.com/world/2022/dec/02/women-in-conservative-region-of-iran-join-mahsa-amini-protests (https://perma.cc/76WC-TX3R) (last visited Dec 6, 2022).
[8] Social media, which made these protests possible, has also and amplified their resonance internationally.
[9] See Leslie Green, Law and Obligations, in The Oxford Handbook of Jurisprudence and Philosophy of Law (Jules L. Coleman, Kenneth Einar Himma, & Scott J. Shapiro eds., 2004).
[10] See Scott J. Shapiro, Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law (Jules L. Coleman, Kenneth Einar Himma, & Scott J. Shapiro eds., 2004).
[11] Joseph Raz, Legitimate Authority, in The authority of law: Essays on law and morality (Joseph Raz ed., 1979).
[12] Joseph Raz, Practical Reason and Norms 63 (1999).
[13] Honoré, supra note 5, at 7-8.
[14] Shirin Abdmolaei, (Re)Fashioning Resistance: Women, Dress and Sexuality in Iran, 9 Anthropology of the Middle East 44–46 (2014).
[15] John Finnis, Natural Law and Natural Rights 340-41 (Second Edition ed. 2011).
[16] Leslie Green, Authority and Convention, 35 The Philosophical Quarterly 329, 341 (1985).
[17] Robert Ladenson, In Defense of a Hobbesian Conception of Law, 9 Philosophy & Public Affairs 134, 135 (1980).
[18] Minister: Hijab, chastity based on Iranian Islamic nat’l identity, https://irangov.ir/detail/391083 (https://perma.cc/ER9L-J554) (last visited Dec 6, 2022).
[19] Id.
[20] Ronald Dworkin, Taking Rights Seriously 273 (1978).
[21] Robert P. George, The Concept of Public Morality, 45 The American Journal of Jurisprudence 17 (2000).
[22] Iran Const. art. 8, supra note 1. It speaks of a universal and reciprocal duty that people owe to one another and to the government and that the government owes to its people. This is in accordance with the principle of believers being guardians of one another where they enjoin the good and forbid the evil, or the hisbah.
[23] Afsaneh Najmabadi, Women with Mustaches and Men without Beards 133–36 (2005).
[24] Minister, supra note 18.
[25] Najmabadi, supra note 23, at 133–36. Najmabadi gives a brief historiography of the veil and underlines how the outlook of the ‘modern’ woman towards the veil has not been consistent. See also, Roxanne Varzi, Warring Souls: Youth, Media, and Martyrdom in Post-Revolution Iran (2006). Varzi’s ethnographic study locates the resistance simmering beneath the surface of the images that state chooses to portray as a revival of Islamic values.
[26] Honoré, supra note 5, at 13.
[27] Abdmolaei, supra note 14, at 49–52. Abdmolaei describes how the discourse of “good” and “bad” becomes associated with the certain modes of dress, the resultant indignity some of the women suffer, and the indignation they feel in being labelled and publicly berated for dressing against the regime’s choices.
[28] Honoré, supra note 5, at 12.
[29] Id. at 13.
[30] Nathan J. Brown, Constitutions in a nonconstitutional world: Arab basic laws and the prospects for accountable government 165 (2002).
[31] Valentina Rita Scotti, Islamic Constitutionalism, in Max Planck Encyclopedia of Comparative Constitutional Law (Rainer Grote, Frauke Lachenmann, & Rüdiger Wolfrum eds., 2019).