There have been a few recent reaffirmations from Iranian jurists, including the Supreme Leader Āyatallāh ʿAlī Khāmeneʾī, that the possession and use of nuclear weapons is forbidden.  They contrast with the 2009 fatwa of Egyptian Grand Mufti ʿAlī Jumaʿā, in which he argues that possession of nuclear weapons with the intent to deter is permitted, whilst actual use is highly conditioned (if permitted at all).  Jumaʿā does not lay out the circumstances under which WMDs could be legitimately employed, but he does not rule out their use absolutely.  His focus is rather the legal reasoning of those “other scholars”, who had stated that the legal evidence indicates that WMDs can be used against “un-Islamic nations”.  Their view is fallacious and based on “false analogies” between the different legal situations of wartime and peace: so says Jumaʿā.  Iranian (Shīʿī) jurists, on the other hand, have generally agreed with Āyatallāh ʿAlī Khāmeneʾī’s long announced (but not to my knowledge published) fatwa that the production, purchase, selling, possession and use of nuclear weapons are all forbidden.  The late Āyatallāh Montazerī, a critic of Khāmeneʾī in so many ways, did not give a fundamentally differing position when replying to a letter from Mohsen Kadivār.  Supposedly there was a dissenting opinion traced to the camp of Āyatallāh Misbāh Yazdī.  His disciple, Mohsen Gharaviān, had given a statement implying legitimisation of ownership back in 2006, which inevitably got more coverage than his clarification (in which he realigned himself with the standard Khāmeneʾī position). And just this month (June 2010) commentators had tried to discern a legitimisation of the possession (and perhaps use) of such weapons tucked away in one of Misbāh Yazdī’s many publications.  This seemed like a case of over-interpretation to me, and prompted me to have another look at these various opinions.  Ironically, the Iranians, whom many fear to be developing nuclear weapons, say explicitly that such weapons are immoral, whilst Jumaʿā, the mufti in a traditional Western ally in the region, leaves the door open to their moral permissibility.

The standard Iranian view is that the legal classifications cascade if use of nuclear weapons is forbidden, then so trade, and if trade is forbidden, then so production and possession.  It is this cascading which seems to gain no traction in the legal reasoning of ʿAlī Jumaʿā.  The difference here may be party attributable to divergent conceptions of illegality and immorality.  First, the Shīʿī legal tradition often avoids overt moral pragmatism - perhaps due to an emphasis on the moral purity of the sect – perhaps because in its formative stages when the Shiites were not in power, they did not have to worry too much about the practical implementation of much of the Shīʿī legal system.  This perhaps distinguishes it from the Sunni tradition, and might explain the willingness of Jumaʿā to countenance the weapons’ legitimate use.  Some Hanafīs say that although you cannot yourself drink wine, you can appoint a non-Muslim agent to buy and sell wine, and you can benefit from the profits.  Some Shāfiʿīs say that although the meat of a monkey is forbidden to eat, you can buy and sell monkeys as they have other uses.  The Shiʿites have, generally speaking argued “forbidden to eat means forbidden to sell”.  There are exceptions of course, and I would not want to say the Shiʿites are inflexible – but with these as the presumptions of the intellectual system, the cascading of use to trade to ownership to production is more likely to convince a Shiʿite jurist.  Second, both Sunni and Shīʿī jurisprudence show a similar level of concern for the “killing of innocents” during war.  But the reason for the distinctive approaches could lie in something more fundamental.  For Shiʿites, the weapons designed to kill innocents are objectively evil; any reasonable person can see this, they argue.  This creates an inbuilt reticence towards overruling moral absolutes for temporary expediency.  For the Sunni tradition (even in its modern guise), God decides on moral-legal classifications, and we do not always know what his view is; this creates a space with which to introduce an element of pragmatism into the discussions.

Of course, these are not the only reasons for the different moral and legal statements from Jumaʿā and Khāmeneʾī.  Religious decrees are invariably products of local politics – whilst their authors simultaneously try and present their thinking as uninfluenced by such factors.  Perhaps Khāmeneʾī would drop his moral absolutism if he felt a nuclear deterrent was politically necessary; this ethical certainty may merely be diplomatic posturing.  Certainly the current Iranian interpretation of Āyatallāh Khomeinī’s doctrine of wilāyat al-faqīh gives him the theoretical power to suspend religious duties inimical to the perceived interest of the Islamic state.  Notwithstanding these caveats, hopefully the theological background to the fatwas of Jumaʿā and Khāmeneʾī enables us to better understand why they disagree.

RG (24/6/2010) - contact.