by Jack McLean
2005
I want to thank Arash Abizadeh for his instructive extended article “Democratic Elections Without Campaigns? Normative Foundations of National Bahá’í Elections,” published in volume 36, number 4 of the 2005 issue of World Order. It is to his credit that Dr. Abizadeh is continuing the kind of in-depth analysis of the political (i.e. policy or polity) features of the Bahá’í Administrative Order, analysis that was begun in Udo Schaefer’s 1957 doctoral dissertation, “The Foundations of the Bahá’í Administrative Order.” This orientation has been pursued since that time, especially by Dr. Schaefer in several publications, but also by Ulrich Golmer and Loni Bramson-Lerche, among others. (Schaefer and Bramson-Lerche are referred to in the World Order article).
An interesting feature of the article was Abizadeh’s application of instrumental and noninstrumental values in his analysis of the distinctive features of Bahá’í elections. These distinctive features help to define a model electoral process that offers itself as a viable alternative to the national elections held under the auspices of political parties. Abizadeh’s analysis clearly gives credence to Shoghi Effendi’s cautionary remark to the Bahá’í Faith’s elected officials that the Bahá’í Administrative Order was not designed as an end in itself, but as a channel for the spirit, a fundamental point quoted by Abizadeh in n. 63.
Shoghi Effendi’s caution suggests that a spiritual dynamic, inclusive of the ethical, which aims to establish divine justice as the dominating ethic of the System, must sustain the Bahá’í Faith’s legal and administrative structures, without which it runs the risk of becoming just another bureaucratic, if not novel, organization. Ever since Aristotle began to reflect upon the complex relations that bound together the citizens of the polis in a social ethic that aimed to establish “the sovereign good,” or the common weal, this type of discourse remains fresh and topical.
However, I must question one of the author’s basic assumptions. The point requires further discussion in order to determine the arguably “legislative” role played by Shoghi Effendi in the establishment of Bahá’í electoral procedures. This point is not a purely theoretical or academic concern. As is well-known to all Bahá’ís, Shoghi Effendi played a crucial and determinative role in the development of the Bahá’í Administrative Order, including determining the norms, rules and procedures that govern Bahá’í elections. Dr. Abizadeh has well substantiated this point.
The author, however, makes these categorical assertions: “Though Shoghi Effendi’s writings have no formal legislative authority, they do have authoritative status in the Bahá’í community as interpretations of the writings of Bahá’u’lláh and ‘Abdu’l-Bahá” (10). “While the writings of Shoghi Effendi have tremendous normative purchase on Bahá’í practice, they carry no legislative authority” (11). And further: “As a result, the legal status of any constitutional arrangement or institutional rule that he [Shoghi Effendi] helped institute, and that was not specifically provided for by Bahá’u’lláh and ‘Abdu’l-Bahá, remained provisional and dependent on future legislative enactment by the elected institutions of the Bahá’í community” (11).
As I see it, the developmental history of the Bahá’í Admininstrative Order, including the nature of Shoghi Effendi’s rulings, recommendations, directives and stipulations, some of which clearly have legal status, and certain statements of the Universal House of Justice, suggest a process that is more subtle and complex than the clear-cut exclusion of the Guardian from Bahá’í legislation suggested by Dr. Abizadeh. The putative provisional nature of the large body of Shoghi Effendi’s rulings is also questionable. In coming to a clearer understanding of this question, it is important to bear in mind the historical fact that the Guardian had to exercise his functions without benefit of any legislation that could be enacted by the Universal House of Justice, since it did not exist during his lifetime, just as today the Universal House of Justice has to function without benefit of a living Guardian. Practice sometimes necessitates the adjustment of theory; historical circumstances sometimes intervene to adjust the need to conform to a particular protective doctrine.
Admittedly, good grounds exist for Abizadeh’s assertion that the Guardian’s writings “have no formal legislative authority.” (The semantical qualifier “formal” is an important one; it may suggest some informal legislative authority). That the writings of Shoghi Effendi have no formal legislative authority is based on statements in the Will and Testament of ‘Abdu’l-Bahá that “It [the Universal House of Justice] enacteth all ordinances and regulations that are not to be found in the explicit Holy Text.” and that Shoghi Effendi was the “interpreter” or “expounder” (mubayyin) of the Word of God.” Shoghi Effendi himself clarified these two distinct functions in his world order letter of February 8, 1934, better known as The Dispensation of Bahá’u’lláh. Part Four of that letter, “The Administrative Order,” clarifies the complimentary roles and functions of the Guardianship and the Universal House of Justice, “the twin pillars that support this mighty Administrative Structure” (147), viz. the Guardian interprets; the Universal House of Justice legislates. Each institution functions in its own distinct sphere: “Neither can, nor will ever, infringe upon the sacred and prescribed domain of the other” (150). This separation of powers is theoretically strict. But other statements of Shoghi Effendi and the Universal House of Justice mentioned below suggest a more complementary role. I hasten to add that by the phrase “separation of powers,” I am not implying an American system of “checks and balances” à la John Locke or Montesquieu.
Referring to articles by Loni Bramson-Lerch and Udo Schaefer, Abizadeh correctly points out that the Guardian worked out “institutional rules” and “informal norms” governing annual Bahá’í elections and convention procedures in consultation with the NSA of the Bahá’ís of the United States and Canada and that, while offering initial judicial, procedural or administrative guidance, he sometimes deferred questions to a fuller, future elaboration by the National Spiritual Assembly or the Universal House of Justice. By taking this stance, the Guardian was obviously respecting the legislative role that had been assigned to the Universal House of Justice.
By refraining from giving too many detailed directives, he made room for the National Spiritual Assembly to hone its own consultative skills, and to find solutions to the administrative challenges it faced (Branson-Lerche in Abizadeh 21). Some of the rules and norms, Shoghi Effendi wrote in a letter of May 27, 1927, newly published in the same issue of World Order, had already been adopted by Bahá’í communities in the Middle East “during the last two decades of the life of ‘Abdu’l-Bahá” (p. 59). The author gives, among other examples, the adoption of plurality rather than majority vote for membership on Bahá’í assemblies and the ban on the nomination of candidates, along with their rationale. In these matters, the letters of Shoghi Effendi recommended both procedural norms and considerations of value, an approach which reflected his fundamental conception of the Bahá’í Administrative Order.
However, the question of deferral by Shoghi Effendi to a future Universal House of Justice represents only a partial view of the actual situation. It pales in light of the larger perspective that would take into account that sizeable body of rules, norms, recommendations, directives and procedures authored by the Guardian in the context of the historical and practical necessities of supplying administrative guidance to the fledgling National Spiritual Assemblies who had sought his guidance. Even though Shoghi Effendi, like ‘Abdu’l-Bahá before him, had considered the possibility of electing the Universal House of Justice at the onset of this ministry, he rejected it after consultation with some prominent believers.
As to the putative provisional nature of his rulings, while it is true that the Guardian recommended that the details of certain administrative matters be left to the determination of the future Universal House of Justice, it is also true to say that most of his recommendations and rulings were adopted by the National Spiritual Assemblies holus bolus, and in their pure form, although as the letters annexed in the same issue of World Order indicate, consultations took place as to the most efficient manner of their implementation. One has only to examine Dr. Abizadeh’s instructive “Table of Noninstrumental and Instrumental Values” (48-49) to realize that the determination of essential values relating to the electoral “rules and norms” have been largely determined by Shoghi Effendi alone. It is, consequently, no exaggeration to say that the Bahá’í electoral process would be largely unrecognizable in its present form without the formal legal and administrative determinations made by the Guardian.
In examining this evidence — and Dr. Abizadeh has himself supplied a great deal of it — I must come to a different conclusion, the same one that has been reached by Udo Schaefer in his discussion of this very point. In responding to questions raised over his controversial views on the character of the infallibility of the Universal House of Justice, he wrote to one of the questioners who had disagreed with him:
You aptly remark that the Guardian exercised executive and judicial function in the course of his ministry. This double role was a necessity of circumstance, considering that the Universal House of Justice had not yet come into existence. The Bahá’ís were dependent on the Guardian’s instructions, which were by far not restricted to interpretations of the holy text (Shoghi Effendi himself stressed continuously that certain issues were to be determined by the Universal House of Justice once it had been brought into existence). At a time when the Bahá’í communities needed to assume legal structures, to elaborate by-laws for their assemblies and to develop their electoral procedures, the Guardian had to execute these legal functions, which were not inherent in his office as mubayyin (expounder). This is no “overlapping” authority, but an interim responsibility, destined to lapse with the establishment of the Universal House of Justice. For that reason the Guardian put the establishment of the legal structures under the aegis of the Universal House of Justice.
(“A Response to Some Questions on the Subject of Infallibility” 13)
To argue that the Guardian did not possess this legislative authority, in the absence of the Universal House of Justice, and that any recommendations that he made were merely provisional opinions, subject to the later sanction of the National Spiritual Assemblies or the Universal House of Justice, while it is theoretically true, seems to gainsay the legal and authoritative character of the large body of his rulings and the overwhelming evidence of the history of the development of the Bahá’í Administrative Order itself. As the permanent head of the Universal House of Justice, it was the Guardian’s responsibility “to define the sphere of legislative action,” and, as the Universal House of Justice has made clear, in this act he did participate in the legislative process: “Although in the realm of interpretation the Guardian’s pronouncements are always binding, in the area of the Guardian’s participation in legislation it is always the decision of the House itself which must prevail” (Wellspring of Guidance 82-83). In the absence of the Universal House of Justice, however, the evidence is strong that Shoghi Effendi acted as a legislator. One other statement of the Universal House of Justice should be taken into consideration: “Similarly, although after the Master authoritative interpretation was exclusively vested in the Guardian, and although legislation is exclusively the function of the Universal House of Justice, these two institutions are, in Shoghi Effendi’s words, “complementary in their aims and purpose” (Wellspring, 86).
Semantical considerations no doubt play their part in assessing the role of the Guardian in these matters. If by “legislative” Dr. Abizadeh means only a rule formally enacted by a corporate body, here being the Universal House of Justice, then his narrow definition would be correct. But the word law, and indeed the concept itself, conveys a complex of meanings, and in my view should not be restricted to the legislation enacted by elected, corporate bodies. Before the establishment of parliaments, constitutional monarchies, or republican forms of government, the word of the sovereign was law. Under absolute monarchies, the sovereign acted as sole legislator.
Law also has a specifically religious meaning, as in a body of divine commandments, such as the Law of Moses. The religious nuances of the word “law” clearly apply here. Shoghi Effendi was not, of course, either a sovereign or a prophet, but he was nonetheless the authorised sole head of a world religion, whose affairs he directed during the vitally important developmental stage of the Administrative Order. The inspired nature of his insights and rulings, which are self-evident, would seem to fall into the category of law and legislation, especially during this interim period when the Universal House of Justice did not yet exist. Certainly in practice, if not in theory, they served this purpose. In n. 52 Dr. Abizadeh quotes Shoghi Effendi as follows: “Let them exercise the utmost vigilance so that the elections are carried out freely, universally and by secret ballot. Any form of intrigue, deception, collusion and compulsion must be stopped and is forbidden” (p. 27). This diktat clearly has the coercive effect of law. It would strike me as being semantical hair-splitting to say that it is not formal legislation—unless, of course, the word is being used in the restrictive sense to which I have already alluded.
Finally, I should say that my comments are naturally not meant to invalidate Dr. Abizadeh’s otherwise excellent article, but to raise a point of view that seems to me to bear essentially on the substance of the professor’s argument. If my argument is correct, it would naturally give greater weight to the legislative role played by Shoghi Effendi, inter alia, in the determinations of the rules and norms of Bahá’í elections.
- Jack McLean
Ottawa, Canada