An "expert" and a real expert on Iran's anti-nuclear fatwa

A couple of days ago I noted that MEMRI stated that there was no written fatwa by Iran's Supreme Leader Khamanei forbidding nuclear weapons, and MEMRI used that as evidence that the entire fatwa was a myth.

Juan Cole, who has been trying his hardest to pretend that Iran has no nuclear weapons program despite all evidence of how they are hiding both the development of nuclear weapons and the development of rockets that could deliver them, responded, saying that

A fatwa is not like an American law that has to be published in the Congressional Record and in official law books. It is just the conclusion to which a cleric’s reasoning leads him, and which he makes known, even in a letter. In Shiite Islam, laypersons who follow a particular ayatollah are bound by his fatwas. When an ayatollah such as Khamenei delivers oral remarks in public, these have the force of a fatwa and are accepted as such by his followers. That is, Khamenei’s recent statement forbidding nuclear weapons in a speech is in fact a fatwa.

I am no expert in Shiite jurisprudence, so although this seemed strange - that a fatwa could be issued without the legal logic behind it - I don't know enough to argue.

And upon further research it looks like Cole is right in his definition. I found a fascinating paper on this very topic of Khamanei's nuclear fatwa, written by Mehdi Khalaji. Khalaji is a true expert in Shiite law, having studied Shiite theology and jurisprudence for fourteen years in the seminaries of Qom and he further studied the topic in Europe. If he and Cole disagree on the topic, there is no question that Khalaji knows infinitely more. In this case, he agrees with Cole that Khamanei's verbal nuclear fatwa is a real fatwa:

[E]ven though Ayatollah Khamenei has produced no written record on the religious prohibitions pertaining to nuclear weapons, his verbal statements on the subject are considered his religious opinions, or fatwas, and therefore binding on believers.

However, there is a lot more to this than meets the eye. Khalaji goes into great detail on how fatwas can and are regularly changed by the person who issued them, as well as about Taqiyya, which Cole downplays. He also talks about the interplay of politics and Islamic law in Iran. He describes how the Ayatollah Khomeini felt that Islamic law was not mature enough to run a modern government, and that the running of the government is actually more important that Islamic law! In Khomeini's own words:

The government can unilaterally abrogate any religious agreement made by it with the people if it believes that the agreement is against the interests of the country and Islam. The government can prevent any Islamic law—whether related to rituals or not— from being implemented if it sees its implementation as harmful to the interests of Islam.

Khalaji concludes:

In sum, since the ruling jurist has absolute authority and exclusive control in defining regime expediency, he can suspend all Islamic and constitutional laws whenever he chooses to do so. This means that laws have no independent authority; they depend entirely on the Supreme Leader’s validation. In such a system, politics never become normalized through the stable functioning of state institutions. Instead, every situation has the potential to be interpreted as extraordinary and manipulated to the liking of the Supreme Leader, possibly against the decisions of parliament, the president, and the judiciary. Thus what might be called the “politics of the extraordinary” concentrates enormous power in the hands of the ruling jurist and defines the essence of the Islamic Republic.

Supreme Leader Khamenei has stated that the production, stockpiling, and use of nuclear weapons are forbidden under Islam. But his recent language on the subject has become more equivocal, emphasizing only the prohibition on their use and not on their production or stockpiling. And should the needs of the Islamic Republic or the Muslim umma change, requiring the use of nuclear weapons, the Supreme Leader could just as well alter his position in response. This means that, ultimately, the Islamic Republic is unconstrained— even by religious doctrine—as it moves toward the possible production and storing of nuclear weapons.

In principle, at least, the emergence of maslaha or raison d’état in the ideology of the Islamic Republic represented a step forward in recognizing the realities of running a modern state. The principle might have been channeled toward allowing the parliament and president to establish a shared understanding of the “national interest” that could strengthen those institutions and foster nascent democratic processes. In practice, however, maslaha has become a means of freeing the political system from the hold of Islamic law, further undermining Iran’s democratic institutions and consolidating the Supreme Leader’s control over state politics, in effect laying the foundation for a clerical/military dictatorship in Iran. Iranian nuclear decisionmaking, therefore, bears the significant imprint of one man’s personality and politics—an imprint that may be unaffected by the will of other men, the decisions of other institutions, or, most ironically, the legal scruples or moral dictates of his own religion.

(Maslaha sounds a little like the Jewish concept of hora'at sha'ah, but the latter is meant to be used in only truly extraordinary and unique circumstances, while Maslaha seems to be much broader and less constricted in how it is used.)

What it boils down to is that Khamanei truly is the Supreme Leader, and he can do whatever he wants - suspend Islamic law, change his mind, lie, bypass all government institutions - if he believes that it is necessary to help run the country.

Which means that his fatwa, while apparently legitimate, is literally meaningless. There is literally nothing that binds him to even his own legal rulings. Actions are the only way that he can be judged, because he has no moral reason to keep his word.