Towards a Theory of Baha’i Jurisprudence By: Cynthia C. Shawamreh

Development of Baha’i Jurisprudence.

The Baha’i Faith, as distinct from the faith of Islam, can be said to have begun in 1844 (C.E.) when Siyyid Ali-Muhammad, known as the Bab, declared that He was the long-awaited fulfillment of the messianic expectations of Shi’i Islam to Mulla Husayn, a young Shaykhi. The followers of the Bab initially understood Him to be the gate to the Hidden Imam, and then in 1848 (C.E.) the Bab openly claimed to be the Hidden Imam Himself. The Bab announced that He was the Herald of a Manifestation of God even greater than Himself, whose appearance was imminent, and whose coming would represent the fulfillment of all the religious prophecies of past ages. In 1863 (C.E.) a leading follower of the Bab, known as Baha’u’llah, announced in a garden outside of Baghdad to a small circle of companions that He was the One promised by the Bab. Most Babis became Baha’is, or followers of Baha’u’llah, and the Baha’i Faith emerged as a distinct world religion. Baha’u’llah announced that He had come to usher humanity into a new age of maturity, based on the principles of the oneness of God, the oneness of religion, and the oneness of humanity. Baha’is believe that all of the world’s religions are guidance to humanity sent from the same God, adapted in non-essential matters for social teachings appropriate for the time and place of each religion’s beginnings, and always renewing the same essential spiritual truths. Baha’i’s believe that the basic pattern of human society is evolving to bring about a united, yet diverse, world community governed by a set of universal laws and principles in which the integration of the whole human race (while safeguarding it’s diverse component parts) is considered both indispensable to the well-being of humanity and ultimately inevitable.

During Baha’u’llah’s lifetime (1817-1892 C.E.) He revealed voluminous Tablets and Epistles which form the core of the Baha’i Writings, including the book known as the Kitab-i-Aqdas, which contains the basis of Baha’i law. After Baha’u’llah passed away in 1892 (C.E.), His son Abdu’l-Baha was the Head of the Baha’i Faith and the sole authorized interpreter of Baha’u’llah’s Writings. Abdu’l-Baha’s interpretations of Baha’u’llah’s Words, including the Kitab-i-Aqdas, are considered binding on Baha’is with the same force of law as Baha’u’llah’s own Writings. One of Abdu’l-Baha’s titles was the “Exemplar” of His Father’s Teachings, and Abdu’l-Baha’s life is considered to model a perfect example and reflection of Baha’i belief.²⁸ After Abdu’l-Baha passed away in 1921 (C.E.), the Baha’i community was guided by His Will and Testament, which clearly established His eldest grandson, Shoghi Effendi, as the undisputed Head of the Baha’i Faith and it’s Guardian.²⁹ The Guardian was designated therein as the sole interpreter of the Writings of Baha’u’llah and Abdu’l-Baha. The Will and Testament also clearly established the role, intimated in Baha’u’llah’s own Writings, of the Universal House of Justice, an elected body to be formed in the future to guide the Baha’i community. Under the leadership of the Guardian, the Baha’i community firmly established it’s distinct nature as a world religion, and spread all over the globe. Today the Baha’i community numbers around six million adherents, and is geographically spread throughout every nation and territory on the planet. The Guardian systematically reared an administrative order based on consultative bodies, known as spiritual assemblies, elected in every local community in which nine or more adult believers reside. At the national level, national spiritual assemblies guide and direct the affairs of the Baha’i community. After the Guardian passed away in 1957 (C.E.) without leaving a will, it became clear that ultimate authority in the Baha’i community would have to be vested in the Universal House of Justice, first elected in 1963 (C.E.). Today, individual believers, as well as the local assemblies, regional councils and national spiritual assemblies all over the world turn for guidance to the Universal House of Justice, which is seated in Haifa, Israel.

The administrative order of the Baha’i Faith is unique among the major religions of the world in that the delegation of authority by which it operates is explicit in the Writings of the Founder of the Faith itself. This delegation of authority is known to Baha’is as the “Covenant” of Baha’u’llah, and extends from Baha’u’llah’s appointment of Abdu’l-Baha, to Abdu’l-Baha’s appointment of Shoghi Effendi, and Shoghi Effendi’s establishment of the assemblies and their crowning achievement, the Universal House of Justice. Turning away from this clear line of authority at any level puts an individual outside of the pale of the Baha’i community. Shoghi Effendi calls this indisputable line of authority the “distinguishing feature of the Baha’i Revelation,”³⁰ and states that “therein lies the strength of the unity of the Faith.”³¹ The Covenant has in fact been subjected to many vicious attacks over the years, and has withstood the schisms afflicting other religious communities. The administrative order of consultative bodies so carefully reared by the Guardian, based on the explicit Writings of Baha’u’llah and Abdu’l-Baha, has thoroughly replaced the role of any living individual as an authoritative figure in the Baha’i community.³² Shoghi Effendi has been metaphorically described as the engineer who built the global system of pipes which pump and carry the flow of life-giving water from the heart of the world center, the Universal House of Justice, to the localities of the Baha’i community all over the world.³³ The role of the local assemblies, regional councils and national assemblies continues to evolve, and it is understood that the assemblies will eventually mature into local and national Houses of Justice. Today, only the Universal House of Justice is considered the recipient of the divinely conferred infallibility which belonged to both Abdu’l-Baha and the Guardian, in their respective roles. Any believer who is unhappy with a decision of his or her local assembly has the right to appeal the decision through the national assemblies all the way up to the Universal House of Justice, whose determination is considered final and binding.

The exact role of Universal House of Justice differs from the role of the Guardian in an important aspect, from the point of view of jurisprudence. Whereas the Guardian was empowered to authoritatively interpret the Writings of Baha’u’llah and Abdu’l-Baha, he was not empowered to legislate. The Universal House of Justice, on the other hand, is not empowered to interpret the Baha’i Writings, but is empowered to legislate on any matter not clearly set forth in the Baha’i Writings. The Universal House of Justice is specifically designed to act as a body which can adapt over time to the needs of the Baha’i community as those needs change, and a future Universal House of Justice is authorized to change a determination made by the House of Justice previously, although it will never be authorized to alter anything explicitly set forth in the Baha’i Writings. Shoghi Effendi clearly describes the benefits this system offers over time:

“Not only has the House of Justice been invested by Baha’u’llah with the authority to legislate whatsoever has not been explicitly and outwardly recorded in His holy Writ, upon it has also been conferred by the Will and Testament of Abdu’l-Baha the right and power to abrogate, according to the changes and requirements of the time, whatever has been already enacted and enforced by a preceding House of Justice. In this connection, He revealed the following in His Will: “And inasmuch as the House of Justice hath power to enact laws that are not expressly recorded in the Book and bear upon daily transactions, so also it hath power to repeal the same. Thus for example, the House of Justice enacteth today a certain law and enforceth it, and a hundred years hence, circumstances having profoundly changed and the conditions having altered, another House of Justice will then have power, according to the exigencies of the time, to alter that law. This it can do because that law formeth no part of the divine explicit text. The House of Justice is both the initiator and the abrogator of its own laws.” Such is the immutability of His revealed Word. Such is the elasticity which characterizes the functions of His appointed ministers. The first preserves the identity of His Faith, and guards the integrity of His law. The second enables it, even as a living organism, to expand and adapt itself to the needs and requirements of an ever-changing society.”³⁴

There are many examples within the Baha’i Writings which clearly anticipate the principle of elasticity in law to which the Guardian refers. Unlike the Islamic idea of an immutably set divine will, which it is the role of the jurist to uncover, the Baha’i Writings have certain clear and established laws which are immutable until the coming of the next Manifestation of God (not to occur prior to a thousand years), and a large body of possible decisions which are explicitly left open to consultation and determination based on the circumstances of the time. How then, are such decisions to be made by the assemblies, courts and Houses of Justice in the future? Fleshing out this process will form the heart of Baha’i jurisprudence, a discipline currently in it’s infancy.

In my personal opinion, it is useful to consider this question in the context of the classical Islamic theories discussed above. The paradigm offered by Shafi’i’s al-Risala (the Treatise) of the four roots of jurisprudence (1) Qur’an, 2) Hadith, 3) consensus (ijma), and 4) analogical reasoning (qiyas)) is nearly identical to the Shi’i paradigm (1) Qur’an, 2) Traditions (akhbar), 3) consensus (ijma), and 4) rational intellect (aql)). If a theory of Baha’i jurisprudence applied a similar paradigm for assemblies to turn to in making decisions, it might look something like this: 1) Writings of Baha’u’llah, including authorized interpretations of Abdu’l-Baha and Shoghi Effendi, 2) consideration of precedent of previous rulings of the Universal House of Justice, 3) consensus based on consultation, and 4) analogical reasoning. The first category alone offers voluminous guidance, but explicitly acknowledges that it will not cover every possible decision. Research departments are essential to thoroughly index and make accessible the guidance available in this category. These Writings alone could fill hundreds of volumes, and only a small percentage of these Writings have been translated from the original Persian and Arabic for the Baha’is of the world who do not read these languages. Scholars attached to the Baha’i World Centre assist the Universal House of Justice in locating guidance in the Baha’i Writings as questions arise, and it is critical at the local level that obvious guidance not be overlooked when an assembly is considering an issue.

There is no precise parallel to the Hadith (Traditions) of Islam in the Baha’i context. Even the life of Abdu’l-Baha, who is the Exemplar of the Baha’i teachings, cannot be used as a parallel to the role of the Sunna (ways, or example) of the Prophet Muhammad in Islamic law. Recalling the example of Ibn Hanbal, who refused to eat watermelon absent a Tradition firmly establishing that the Prophet Muhammad affirmatively ate watermelon, indicates why this cannot be applied in the Baha’i context. Although the precise meaning of Abdu’l-Baha’s role in the Baha’i Faith is unique and mysterious, it is clear that His title as Exemplar does not mean that Baha’is are expected to imitate the small details of His life. It was controversial, for example, when Shoghi Effendi, upon assuming his role as Guardian stopped several of the practices of Abdu’l-Baha, such as regular attendance at the Friday prayers in the Mosque.³⁵ Abdu’l-Baha, acceding to the customs of the times, had the women of His household veil and remain generally separate from the men, but no Baha’i today would ever assert that Baha’i law requires women to veil. His custom in taking His meals was thoroughly Middle Eastern when He began His role as Head of the Baha’i Faith, with the men eating first on the floor around a large shared low table with spoons or hands. This changed over time as the number of pilgrims from the Western world increased, and Abdu’l-Baha began to take meals in a Western style around a formal dining table with individual settings.³⁶ Which custom would the Hanbali approach imitate, the earlier or the later? These details should clearly be seen as secondary in importance, and an indication of Abdu’l-Baha’s flexibility to the customs of the people around Him in such non-essential matters. Hadith (Traditions), then, in the sense of imitating the Sunna (ways) of Baha’u’llah or Abdu’l-Baha can have no bearing in Baha’i law. Hadith in the sense of sayings reported to have been made by the central figures of the Faith may have a rough parallel in the body of “pilgrim’s notes” which are not considered authoritative among Baha’is, but are reports of individuals who state their recollections of what Baha’u’llah, Abdu’l-Baha or Shoghi Effendi said to them. Although these can occasionally be useful guidance, given the voluminousness of the authoritative Writings in the first category of the paradigm described above, I have chosen not to include pilgrim’s notes as a source category for Baha’i law in this theory.

The second category, consideration of precedent of previous rulings of the Universal House of Justice, is completely distinct from the binding nature of the first category (the Writings and interpretations of Baha’u’llah, Abdu’l-Baha and Shoghi Effendi). While the ruling of the Universal House of Justice is authoritative and binding in the immediate context (and clearly binding on all individuals and assemblies of subsidiary rank), it is clear that future Houses of Justice may change a previous decision as they see fit, according to the needs of the times. Because of the high status of the Universal House of Justice, however, despite this flexibility, I believe the precedent would be of value in any consideration of a question. It would make sense to review a precedent, understand clearly the spiritual principles animating the previous decision, and then determine what social changes would be relevant to altering the precedent. The change in the needs of the times would have to be quite clear to warrant altering a precedent of the Universal House of Justice.

The third category, consensus based on consultation, appears similar to the Islamic example, but in reality is very different. In the Islamic context, consensus (ijma) meant the theoretical consensus of the entire Muslim community, which rarely, if ever, actually occurred. The role of consensus based on consultation in the Baha’i context is the animating principle of Baha’i assemblies and of community life. Consultation is the cornerstone of all decision-making in the Baha’i community and it’s importance cannot be overstated. The operation of each unit of the Baha’i administrative order is founded on the principle of consultation. The “spirit of frank and loving consultation” is called the “keynote of the Cause of God”³⁷ by Shoghi Effendi. Universal consensus in decision-making among assembly members is seen as desirable, but not essential. Abdu’l-Baha wrote:

“In this day, Assemblies of consultation are of the greatest importance and a vital necessity. Obedience unto them is essential and obligatory. The members thereof must take counsel together in such wise that no occasion for ill-feeling or discord may arise. This can be attained when every member expresseth with absolute freedom his own opinion and setteth forth his argument. Should any one oppose, he must on no account feel hurt for not until matters are fully discussed can the right way be revealed. The shining spark of truth cometh forth only after the clash of differing opinions. If, after discussion, a decision be carried unanimously, well and good; but if, the Lord forbid, differences of opinion should arise, a majority of the voices must prevail.”³⁸

It is expected of the members of assemblies, as well as the Baha’i community at large to unanimously and whole-heartedly support the decisions of assemblies, even when they do not personally agree with them, since the principle of unity outweighs the concern over the outcome of any particular decision. This is, of course, balanced by the right of appeal of individual believers referred to above. Consensus based on consultation, then, is a bedrock of Baha’i community life and should be considered a key component in the determination of Baha’i law.

The fourth category, reasoning by analogy or use of rational intellect is necessary to the full application of all of the categories which precede it. Without rational intellect it is unlikely that systematic and thorough review of all the guidance contained in the Baha’i Writings (category one) can be properly analyzed. Without the use of rational intellect, thorough analysis of the conditions which may warrant a departure from a precedent of the Universal House of Justice (category two) would fall flat. The use of rational intellect is essential to frank and open consultation (category three) through which a consensus may be derived. Interesting guidance is offered by a publication of the National Spiritual Assembly of the Baha’is of the United States:

“Spiritual Assemblies go through several steps during the process of consultation. Facts are gathered, and the problem is clearly stated. Relevant spiritual principles are identified, and the Assembly considers how these apply to the particular situation. A discussion follows in which every member of the Assembly freely expresses his or her views, and ultimately the spark of truth becomes apparent. A decision is made after all have been heard and a consensus has emerged. All members then obey this decision in unity.”³⁹

This quote is particularly helpful in the practical application of the principles described. In particular the identification of “relevant spiritual principles” (presumably derived from the Baha’i Writings) which are identified and then applied to the context implies a direct use of reasoning by analogy. Stated another way, if a particular spiritual principle is identified as the animating force behind decision A, and no clear guidance exists for decision B, the Assembly members are then expected to extract the spiritual principle from decision A and apply it in the context before them to reach decision B. This is, in fact, the heart of reasoning by analogy in jurisprudence.⁴⁰

A distinction should be clearly made in the application of this theoretical paradigm to the different categories of institutions which may apply and implement Baha’i law. The supreme institution of the Baha’i Faith, the Universal House of Justice, is limited only by the first category of the paradigm - the explicit text of the Baha’i Writings and the authorized interpretations of Abdu’l-Baha and Shoghi Effendi. The Constitution of the Universal House of Justice lists among its powers and duties:

“To enact laws and ordinances not expressly recorded in the Sacred Texts; to abrogate, according to the changes and requirements of the time, its own enactments; to deliberate and decide upon all problems which have caused difference; to elucidate questions that are obscure; to safeguard the personal rights, freedom and initiative of individuals; and to give attention to the preservation of human honour, to the development of countries and the stability of states.”⁴¹

While I am suggesting that even the Universal House of Justice will make use of category two, its own precedent decisions, it is completely clear that the Universal House of Justice has the full and absolute authority to abrogate its own decisions over time.

Category three of the paradigm, consultation based on consensus, should not be misunderstood to imply that the members of the Universal House of Justice derive their authority from the will and consensus of the community (as with leadership in Sunni Islam) despite the fact that they are elected by that community. Neither is the authority of the Universal House of Justice, an elected body, by divine appointment and guidance alone as in the model of the Imamate in Shi’i Islam. The Constitution of the Universal House of Justice quotes Shoghi Effendi as follows:

“In the conduct of the administrative affairs of the Faith, in the enactment of the legislation necessary to supplement the laws of the Kitab i Aqdas, the members of the Universal House of Justice, it should be borne in mind, are not, as Baha’u’llah's utterances clearly imply, responsible to those whom they represent, nor are they allowed to be governed by the feelings, the general opinion, and even the convictions of the mass of the faithful, or of those who directly elect them. They are to follow, in a prayerful attitude, the dictates and promptings of their conscience. They may, indeed they must, acquaint themselves with the conditions prevailing among the community, must weigh dispassionately in their minds the merits of any case presented for their consideration, but must reserve for themselves the right of an unfettered decision. `God will verily inspire them with whatsoever He willeth', is Baha’u’llah's incontrovertible assurance. They, and not the body of those who either directly or indirectly elect them, have thus been made the recipients of the divine guidance which is at once the life blood and ultimate safeguard of this Revelation.”⁴²

Consultation and consensus among the members of the Universal House of Justice is the basis of the decision-making of the Universal House of Justice itself, then, but should not be misconstrued to limit the authority of those decisions when made. Category four, reasoning by analogy, may be said to be implied by the direction to “weigh dispassionately in their minds the merits” of a given case, but clearly the concept of “divine guidance” would immediately silence any assertion that decisions of the Universal House of Justice would be limited by reason (such as the Usuli assertion that the laws of God would always accord with human reason).

The theoretical scope of jurisdiction of the Universal House of Justice is essentially unlimited, much like the classical understanding of Islamic law. This is similar in the context of local and national assemblies, although it is my understanding that each would be circumscribed, even as they develop into local and secondary Houses of Justice, by the layers of authority above them. Clearly, category one, the Writings and authorized interpretations, will always apply to govern decisions of all assemblies. Category two, precedent decisions of the Universal House of Justice, would be similarly considered completely binding on all assemblies. In the case of local assemblies, precedent decisions of that assembly might be considered, although abrogated, but precedent decisions of national assemblies should be considered binding. Similarly, national assemblies might consider their own precedent decisions, while maintaining the right to abrogate them, but be completely bound be any precedent decision on point of the Universal House of Justice. This method seems to me to be a basic feature of maintaining both the centralized unity as well as the local flexibility necessary to address the diverse needs of a global community. Category three, consensus based on consultation, would be applicable to both local and national assemblies as described in detail above, as would category four, reasoning by analogy.

Finally, a word should be said about the role of Baha’i courts. These institutions are not currently established and functioning to my knowledge, although there has been much consideration of their establishment, particularly in the Middle East. Unlike in the western world, where all law is essentially secular and governmental, in the Middle East, most countries currently have separate courts for personal status matters which are determined by the various religious communities, whose jurisdiction is officially recognized by the government. For example, personal status matters of birth, death, marriage, divorce, custody and inheritance would be determined by Islamic law in a Muslim court if the individuals concerned were Muslims, or by Christian law in a Christian court if the individuals concerned were Christians, or by Jewish law in a Jewish court if the individuals concerned were Jewish. The advisability, then, of establishing Baha’i courts which would be officially recognized by their respective governments in that context has been considered. Shoghi Effendi has specifically indicated that assemblies would eventually take on the duties and responsibilities of these officially constituted courts, as the capacity and jurisdiction of assemblies increase.⁴³ This implies that these courts, if and when established, would be subject and subordinate to local or national assemblies, as applicable. I would argue that their scope of jurisdiction, in addition to being limited by the government to personal status matters, should be limited as well to the implementation of matters which are clearly and explicitly covered by the text of the Baha’i Writings and their authorized interpretations (category one), and decisions of the Universal House of Justice (category two) which of course they could never abrogate, but merely implement. All other matters not explicitly covered would have to be referred to the applicable assembly for decision, which the Baha’i court may be able to legally implement, with the permission of the assembly. Categories three and four of the paradigm, then, would not really apply to Baha’i courts, whose sole purpose, until they are subsumed by assemblies, would be implementation of clearly established Baha’i law with governmental recognition.