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Hadi Enayat is a political sociologist whose main interests are in the areas of religion and international relations, the sociology of law and secularism studies. He has written Law, State and Society in Modern Iran: Constitutionalism, Autocracy and Legal Reform, 1906-1941 (Palgrave/Macmillan, 2013) and Islam and Secularism in Post-Colonial Thought: A Cartography of Recent Genealogies (Palgrave Macmillan, 2017). He currently teaches at several universities in London and specializes in the political sociology of the Middle East, socio-legal studies, comparative politics and race, ethnicity and multiculturalism.
Interview with Hadi Enayt | London July 07, 2015
I’m Hadi Enayat, I’m a political sociologist and historical sociologist based in London. Mainly, at the Institute for the study of Muslim civilizations at Aga Khan University. And, so I’m interested in the nature of power, primarily. And, you know, issues related to power. In a state formation relationship between state and society, democracy, transitions to democracy, revolutions. Okay, these are my main concerns. And, of course, the rule of law.
At the moment I am working on a book about the Secular in Muslim context which is a kind of book which, you know, is looking at multiple countries, you know, in Muslim majority context. Primarily through the person of the Secular. And, it’s trying – it’s an exploratory book – it’s trying to look at engage critically with this notion that secularism is an alien concept in Muslim, societies. And, try to look at the different paradigms and different manifestations of secularism in this kind of context through, looking at politics, through looking agenda, looking at the rule of law and governance and popular culture as well.
Now, I decided to study legal reform in Iran. I mean, first of all I was very skeptical. Some of my supervisors suggested legal reforms as a subject. And, I was very skeptical about doing that. I thought it was very boring. And irrelevant. You know, why study a now defunct legal system from the early 20th century. And, the more I read about the subject, the more I realized that it was a very, very useful way of looking at some very, very core issues in Iranian, modern Iranian history. Okay. And broadly there’s three.
The first is that the legal reform and judicial reform was a key instrument in state formation, state building. Now, you can say, it always is, the legal system is always the core of any modern state. But, there is a particularly contested process in Iran because of the peculiarities of the power structure. And specifically the relative independence of the Shiite clergy in Iran. Which is something which you didn’t have in the Sunni in a context, whether clergy were more incorporated into the state. And, this Sunni clergy had at least a theoretical, not always actual, but, a theoretical monopoly over the law in the traditional society.
There was a very, very powerful traditional scholastic legalism amongst the Shiite clergy. And, that made legal modernization of very, contested process. So, it’s good word looking at that at state formation. Secondly, legal reform is a very good way of looking at the secular and liberal traditions in modern Iranian history. Because, it was the rallying call in many ways of what I call, the liberal legalists in Iran general constitutional revolution with Qanun Law. Thirdly, legal and judicial reform is part of the biggest story of the 1979 revolution. Because, legal and judicial reform had a very, very profound impact on the social composition and ideological outlook of the Shiite clergy in Iran. And when Khomeini took power, in fact, one of his first targets up to 1979 revolution was the Tabuti [ph], the ungodly, you know, devilish legal system, secular legal system that had been established by the post constitutionalist reformers, so it is part of that big story as well.
And, okay, so, the whole story starts with the 19th century, okay. The problem of the 19th century is it was interpreted by the emerging modern intelligentsia in Iran at that time. Okay. Modern intellectuals in Iran in the 19th century people like Malkam Khan and Mustashar al-Dawle looked at their own society and they believed that the key instrument in the backwardness and chaos of Iranian society was law. What was missing was law, Qanun. And, this was the secret of progress and civilization in the west, in their outlook. So, they argued the legal reforms was central to modernization to creating a kind of a more ordered, a more civilized and ultimately more powerful state in Iran.
And, now, some of these intellectuals have been described later on in the 20th century by intellectuals like Ahmed Fareed, as west toxified, that they had a kind of orientalist view of their own societies. Okay. That they were seen on their own traditional Iranian society through the prism of kind of western orientalists, you know, stereotypes about despotism and arbitrary rule and lawlessness and what have you.
In the course of my research, in my book I’ve argued that actually they were broadly correct in their interpretation of the legal scene, the legal situation in the 19th century.
Of course, they exaggerated the situation much of their writing was rhetorical, you know, this was in the context of whether they were trying to mobilize, you know, movement, constitutional movement. But, broadly speaking, they were I think, correct in their depiction of what was happening in the 19th century. So let me describe that a little bit. The legal institutions of 19th century Iran were particularly backward when you compare them to contemporaneous politics like the Ottoman Empire. Which had a much more robust legal system, but of course, there were all kinds of problems in there, and with that as well. But, still, they had a much more robust centralized legal system in the Ottoman Empire and also in Qing China. You know, quite a work on the legal institutions of Qing China.
And those two politics had a relatively institutionalized and kind of centralized legal system. Qajar Iran not so. Okay. First of all we are talking about, you know, the Qajar Empire itself was a confederation of power which was very, very weak and fragmented. There was no standing army and there was a very rudimentary bureaucracy. And, this weakness and fragmentation was reflected in its legal system.
The legal system is complicated and messy. There were multiple jurisdictions. But, broadly speaking there were two sets of courts and jurisdictions. One was called Shar and one was called Urf. Shar meant religious courts and Urf meant customary courts. Okay. Shar courts took care of, you know, what we call today civil law.
There were broadly two jurisdictions or two, you know, sets of courts in 19th century Iran. The first were called Shar courts, Shar means Sharia, okay. And they were generally run by the clergy of course and they took care of what we today call civil law, mainly. Okay. Marriage, divorce, wills, inheritance, sometimes property disputes, sometimes some commercial disputes and also some aspects of criminal law, mainly murder. Okay, which should be done according to the Sharia principle of Qisas which is retaliation. The second jurisdiction and most legal disputes were actually administered in this jurisdiction were called Urf courts. Urf means custom in Arabic. And in practice these courts took care of most aspects of criminal law and what we today call administrative law.
Now, both of these jurisdictions were largely outside of the control of the Qajar authorities except for in Tehran. Okay, there were some centralization there. But, both of them were largely outside of the control of the Qajar authorities and they were very, very irregular. You know, inside the Sharia courts there was some measure of legality and procedural regularity, okay. Although they were also quite unpredictable, as we said. But, especially in the Urf courts. The Urf courts, you know, Urf law was not codified at all. In fact, law was not codified at all in the 19th century. Sharia courts was written down into multiple books of fact which were kind of sometimes internally inconsistent and sometimes conflicting with each other. But, the Urf law was not codified at all. So, the Urf courts were very unpredictable. And extremely arbitrary.
And, one of the common complaint in the 19th century would be about the arbitrary nature and what we today call the crude and unusual punishments which are often meted out in the Urf courts which could be very, very brutal. They were often run by local governors. And, all kinds of nasty punishments were regularly meted out in these courts. And this is, you know, reflective in the kind of the petitions and bills of complaints which you find in Qajar Iran. Which should be analyzed by a number of different historians. Now, so, one of the problems was the brutality of the irregularity of the Urf courts. On top of that, property rights were very, very weak in 19th century Iran. Land registration was particularly backwards in the 19th century Iran. Ann Lamson, the very eminent historian of land reform in Iran has commented on this. And I tried to show this in my book.
Property disputes could go on for generations sometimes, okay. Without being resolved. And, this was the function of a lack of a proper cadastral survey of the land, approval on the land. And the lack of centralization of land registration which was often carried out by the clergy in their own homes without any control. Again, this contrasted with the Ottoman Empire. Where there was much title land registration and a much clearer structure of property ownership and property rights. So, disputes could be resolved much, much easier in the Ottoman Empire.
And, so these were some of the problems, okay. Arbitrary rule, crude and unusual punishments, weak property rights in the 19th century. These were a feature of the weakness of the Qajar Empire, the Qajar monarchy. But, they also had to do with the peculiarities of Shiism, okay. As I said, the Shiite Ulama, at least some of them. The high Ulama, the clergy had a kind of relative independence from the Qajar authorities which was facilitated by the religious taxes paid by their followers to the clergy which was something which the Sunni Ulama didn’t have in the Ottoman Empire.
And, you also, a common practice in the 19th century was something called “nasekh va mansukh” which means basically contradictory rulings. You could take a legal dispute, say a property dispute, to one court run by one Mujtahid, okay. He would issue a ruling, okay. The party, you know, the losing party could then take that same dispute to another court run by another Mujtahid he would issue a completely opposite ruling. They were both theoretically valid. And this practice caused all kinds of chaos in the judicial scenario in the 19th century, especially in connection with civil disputes and property rights.
Okay, so, there were various attempts to reform the situation in the late 19th century, okay. On the two of the great reformers, Amirkabir and Cephasalar. But they largely failed. In the legal and judicial realm. At least these modernizers largely failed and they failed for a number of reasons. They failed because the Qajar state was too weak to implement these reforms, okay. And, local power, especially clerics and local governors were independent enough to scuttle them. Because these reforms centralized in judicial power, regularizing it, codifying laws that are a threat to their interests.
Now, that meant that by the end of the 19th century, when it began to see the germination of the “mashruteh,” of the constitutional movement, law was the major issue in this revolution. And, if we move on to the constitutional period now, one of the striking things about the constitutional movement was the centrality of law in Persian, Qanun, in that revolution, okay. As Homer Carthusia has mentioned before. You know, it’s difficult to find a modern revolution in which law figures so prominently as a kind of ideological slogan. So, Qanun, what does Qanun mean. It’s a word which comes from the Greek word canon, okay, meaning a rod or measuring stick, okay. It was then adopted in the Ottoman Empire from the 16th century onwards. Ottoman sultans began to issue what were called, “Qanunnamehs.” Basically, codified law.
They began to codify some aspects of their penal law, their tax law, okay, their administrative law and they called them Qanunnamehs. And Qanun basically meant positive law. So, this was any kind of legal enactment. Enactment which was done outside of the Sharia, positive law, basically. The word was then popularized in 19th century. The late 19th century Iran by the reformist intellectual Malkam Khan, who called his journal Qanun Law. And now, Khan, as I mentioned, you know, the way Malkam saw European societies, he said that the key to their success was that they had a very, very efficient administrative machinery. And, this administrative machinery was like a kind of factory which produced, you know, efficient, productive citizens. Productive and just citizens.
And the most important factory was the legal system in Europe. And, that’s what Iranians had to adopt, okay. This kind of machinery in order to modernize their societies. The other main intellectual, one of the main intellectuals in the constitutional movement who put great emphasis on law was Mostashar al-Dawleh. He was another intellectual. He was also a bureaucrat within the Qajar administration. And, he wrote an essay called, “Yek Kalameh,” which means, “one word” in which he argued, along similar lines, to Malkam, the key to solving Iran’s problems was one word and that was, “Qanun,” Law.
So, this became a very, very powerful ideological impulse within the constitutional movement. And, but, of course, there was a great deal of disagreement about exactly what Qanun meant, okay. A great deal of disagreement out there. You know, Qanun meant Sharia Law to some people, Islamic Law. To others it meant, you know, modern positive western style laws, okay. To others it meant justice.
Yes, to the traditionalist Ulama, for example, didn’t embrace the concept of Qanun, they embraced the concept of Adalat, which means justice, okay. Now, so, another slogan emerged during the constitutional revolution alongside Qanun which was, “Adalatkhaneh” which means, “House of Justice.” Now, again the precise meaning of that was contested. But, Adalatkhaneh was like a floating signifier or something. It was vague enough and broad enough to unite the various wings of the constitutional movement against the Qajar monarchy. And eventually successfully extract, you know, a parliament and a written constitution.
Once these victory was won, the differences over the issue of law and justice came out after the revolution. And especially in the drafting of the supplement. The supplement was the, you know, the second main document within the constitution. And the differences really came out over this issue. Especially, over two sets of issues or three sets of issues, I should say. First of all Article 2 of the supplement. Article 2 of the supplement was an article which Sheikh Fazlollah Nuri, who was the leader of the traditionalist wing within the constitutional movement, who then turned against the constitutional movement insisted on being inserted into the constitution. And it gave the clergy the right to veto legislation. It established a clerical council, basically, which could veto legislation which was deemed to be against the Sharia. Now, post the more modernized and secular wings of the movement. So, this is a kind of, you know, an aberration of the kind of principles of the revolution and of modernization.
And, in fact it was institutionalized in the power of the clergy. Most in the traditional society even, okay. But, the other main article was Article 8. Article 8 was one which the modernist wanted to insert and that establish equality before the law, okay. This was very, very important for the liberal and modernized wing of the movement, okay. Who based their kind of ideological outlook on the great. Actually I want to start all over again so that doesn’t, okay. Yeah.
I am going to start because I missed the bit out so I’m going to get back, yeah. There were three competing, they’re not mutually exclusive conceptions of the law in the constitutional movement. The first, I quote in my book, liberal legalism. Yeah. A conception of law as an instrument of rights, basically. Of rights, basic conception of law, okay. Law as a break on despotism, okay. And, as an instrument for achieving equality, yeah. And for some, even democracy, right?
This was a conception of law embraced by Malkam Khan, for example, okay. Especially in his later writings, in his general Qanun by Mustashar al-Dawla in his essay, “Yek Kalameh,” and then by some of the politicians, statesmen and jurists of the later post constitutional period. Most importantly, people like Mohammed Ali Foroughi and of course, Mohammed Mosaddeq.
The second conception, I’ve called, “etatiste” legalism, okay. Statist legalism. This is a conception of law as primarily an instrument of power and centralization. And, this was also embraced by Malkam Khan, as I said, these are mutually exclusive these conceptions. Malkam Khan especially in his earlier writing said that one of the reasons that the Khasha state is so, or the Khasha monarchy is so weak and on its knees before this kind of imperial power, is because it lacks a proper constitutional legal structure. And, in fact, law would make the state stronger and more powerful.
And, here Malkam Khan was echoing an argument which was made by Jean Bodin the French political theorist who argued that the division of powers doesn’t constrain power and in fact makes power more efficient, okay. The, etatiste legalism was also embraced by some of the later politicians who are especially under, who worked under Reza Shah most importantly, Teymourtash and Ali-Akbar Handabar who we’ll talk about later. And, also, by some of the clerics. Sayyed Hassan Modarres. And, that leads us to the third conception which is Islamic legalism, okay. Now, of course, the clergy had different conceptions of constitutional civil law. Some of them were liberal, at least the minority of them. And some of them apparently attaches category, but, of course, a large section of them embrace the traditionalist concept of Adala, justice, okay. And, the main difference in between Sharia law and Sharia in fact, the main difference with the liberal conception for example, was equality.
The third conception of law was the traditionalist Islamic legalism, okay. The Ulama had different positions on constitutionalism and law. They didn’t all fall into this category of course. But, many of them did embrace the traditionalist concept of Adala justice through Islamic jurisprudence, okay.
And this conception of justice was very, very different from the liberal legalism. The Islamic conception of justice was similar to an Aristotelian conception of justice, which is more based on equivalence rather that equality. The liberal conception was very much based on an equal set of civil and political rights for all Iranians. Equal citizenship, okay. The traditionalist conception made based in Sharia made very, very strict distinctions between different categories of people who were given different rights and duties. For example, men and women. For example, Muslims and non-Muslims, okay. The main advocate of this conception of law was the Sheikh Fazllolah Nuri, okay, who is deemed as a kind of hero on the contemporary Islamic republic.
Sheikh Fazllolah Nuri had a very, very deep seated philosophical opposition to the liberal constitutionalists. And they had a very, very good understanding of the implications of constitutionalism. And, especially over the issue of equality amongst other things, okay. Now, these differences, okay, were masked during the campaign against the Qajar monarchy during the constitutionalist campaign. But, they came out into the open after the revolution, especially over the drafting of the supplement. Okay, and over three sets of issues. First of all, Article 2. Article 2 was an Article which just about to start. Article 2 was an article which Sheikh Fazllolah Nuri insisted be inserted into the supplement which basically called for a council of Ulama to vent the legislation produced by the Parliament and to make sure that it conformed to the Sharia. And of course liberals modernists, people like Taqizadeh, you know, very much opposed to this. You know, this was the kind of the institute. They saw this as really robbing, you know, the constitutional movement of its main goals, right? And, it’s institutionalizing the power of the clergy far too much.
One of the other main contest was over Article 8. Article 8 enshrined the equality before the law. An equal citizenship, at least this is what the modernist and the liberals wanted. And, of course, Sheikh Fazllolah Nuri opposes virulently, he said, you know, the Shadek cannot accept the quality. He cannot accept equality between Muslims and non-Muslims for example, okay.
In the end it was fudged and the wording of that Article was equality before state law, okay. Leaving it ambiguous as all constitutions are ambiguous and this ambiguity is built into the power of the way they get the past. And, it didn’t say anything about the Sharia.
Now, one interesting story about that is, while this contest over Article 8 was going on there was a court case which involved a Zoroastrian merchant, Feraydun Zartoushti who had been murdered by a gang of Muslims and the constitutionalists including the Zoroastrian, you know, law basic, you can call him that, were calling for the Muslim murderers to get, you know, maximum punishment, death penalty basically for this.
The traditionalist forces were saying under the Sharia, if a Muslim kills a non-Muslim they shouldn’t be punished so harshly, yes. This was kind of a, you know, it was a very, very dramatic court case. Justice took place in the Majlis I believe, in the Parliament. And in the end it was a kind of victory for the constitutionalists. The murderers, well, they received, you know, 700 lashes, one of them received 800 lashes another one received a thousand lashes, basically, death sentence. Or they’re not in name. But de facto it was, yes.
So these were very, very passionate issues that were being fought out, both politically and legally at that time and this was in the context of a transition, you know, efforts to build a new political legal order. But, there wasn’t still proper codes in place. So, it’s all very confusing and messy.
The other main issue was over, in the supplement, was over the concept of appeals, okay. Two Articles in the supplement instituted the procedure of appeals which again is against the Sharia. The court of the Sharia there can be no appeals to a Sharia ruling. But, and that was some of the Ulama from Iraq the senior Shia Mujtahid complained, you know, about this to the Majlis, you know. How can you have an Islamic system with appeals being institutionalized, in the end those Articles were kept, were retained in the constitution. Moving on to the legal reforms themselves, okay, they are broadly, in my book I identified two phases of reform, okay. The first phase is from 1911 until 1926 and the second phase is on the Reza Shah 1926 to 1941.
Now in the conventional historiography, the first period is often been written off. Not just in legal reforms, in terms of reforms generally but immediate post constitutional period, as being one of completely an effectuate attempt of reform. In the context of a very weak puny and corrupt kind of post constitutionalist monarchy. Stephanie Cronin has described this narrative at the convention of historical narrative as the catastrophe’s narrative, yes? All the constitutional revolution board was chaos, lawlessness and failure, okay. And that, the real state ruling in Iran began on the Reza Shah, okay from 1919 onwards. In my book I’ve tried to challenge that catastrophe’s narrative. And Shah Lakshid, a great, a very, very significant and important body of institutional building took place in the first period. The second period of course under Davar and Reza Shah was very, very important. But what’s been neglected is some of the achievements which were done by the earlier reformist, okay.
So, let me talk about the first period starting in 1911. Broadly three things happened between 1911 and 1926. The first was, the first attempt of codification, okay. These were done in 1911-1912 and they were mainly the work of two people. The first was Mostashar al-Dawleh, Hassan Pirnia okay. And the second who worked with Hassan Pirnia was Sayyed Hassan Modaresh. The cleric and who often today described as an Islamist. Again a great hero of the kind of Islamic Republic today. But, he worked closely with Hassan Pirnia who I would put into the liberal legalist category. And, between them they drafted and managed to pass three codes.
The first was the Qanun-e Tashkilat-eAdlieh which means the, “Code for the Organization of the Judiciary,” which was basically a kind of constitution of the shape of the institutional shape of the judiciary, okay. The second was the Qanun-e osul-e mohake-mat-e hohuqi which is the, “Law of the Principle of Trials” which is essentially a code of civil procedure. And the third was the Qanun-e osul-e mohakemat jaza’i which means the “Code of Criminal Procedure.”
Now, note, all three of these codes in a sense were procedural codes. Yeah. They didn’t deal with the thorny issue of substantial civil and penal laws.
And, this was partly because, every time the issue of reforming civil law or penal law came up, there was vociferous opposition from much of the Ulama. So, the reformers started with the less contested and thorny issue of procedures rather than substance, substantic laws. But, what was also going on quietly – this is something which is also neglected in much of historical writing during this period — was that the civil code began to be drafted quietly in the background. A cleric called, I forgot his name, and it’s really important this, I got it written down, I forgot his name.
That cracking, yeah.
Yeah, that’s true, actually yeah, that’s true.
Another important development during this period which has been neglected in the kind of historiography is the drafting of the civil code. Quietly and secretly in the background, Mohammad Reza Fotami Qumi began to draft the civil code in 1914. This was done secretly, okay. And that was also a very, very important development, okay. And so, what we began to see were the first codes in 1911. That was one very important development.
And, that began to create the shape of a French style civil law system but synthesized with Sharia courts. Sharia courts were also institutionalized and incorporated into the system. So, you had a kind of jury system of the old Sharia off courts but now, incorporated into a centralized state system. The beginnings of that at least. The second main area reform that was important in this period was the establishment of the first secular law school or schools, there was two of them. One in Tehran, one in Tabriz, okay. This was a very, very sensitive area of reform. Broadly for two reasons. First of all legal education was traditionally been carried out in the great bastions of learning in the madrases, okay the seminaries, the religious seminaries. And, this was a kind of a monopoly, you know, of the Ulama. This kind of education. And a secular law school kind of threatened that.
Secondly, the madrasas were also very, very important avenues for patronage for the Ulama, okay. So, reforming this institution was very, very sensitive but kind of symbolic and ideological reasons but also for material reasons. Now, the Ulama had a kind of range of positions on this. Some of them completely opposed any kind of secular legal education, okay. But, others were more pragmatic and understood the need in the context of a modern state, okay, for, you know, some secular judges going to end to the system. And he has said, Hassan Modarres who I mentioned before, a leading cleric and a leading parliamentarian was, his intervention was very, very important, okay.
He managed to persuade some of the traditionalist clerics the conservative clerics that a secular law school was in the interest of the country and was acceptable according to Islamic law, okay. And so, you begin to see, you know, secular judges, a small number of them begin to emerge during this period. And secular lawyers. Yes, it’s the beginning of the Iranian kind of modern Iranian legal profession. And that was very, very important.
The third achievement during this period was the reform of penal law. This was also a very, very sensitive area of reform. Because, for the traditionalist clergy, okay, touching the hudud punishments, okay, which are contained in the Koran. And which are punishments by divine right, according to Islamic Law, was something which can be done. This was sacrosanct, this couldn’t be touched. Even though the hudud punishments weren’t generally applied in the Sharia courts historically. Mutilating them in any way or trying to marginalize them in any way and replacing them with secular penal codes was seen as off limits by some of the clergy. Especially a faction of clergy from Esfahan, who gathered around Aqa Nurollah, a very powerful cleric in Esfahan.
In fact, in Islahhane in 1922 there was a huge demonstration against attempts to secularize the penal code in Iran. Now, but, for other reformers, the secularization of the penal code was absolutely vital. It was vital ideologically and it was vital politically. Ideologically the liberals who I mentioned were inspired by the kind of, you know, enlightenment writings of people like Beccaria who called for humane regimes of incarceration, punishment and correction, not based on cruel, unusual punishments, and the death penalty? Ideologically that was very, very important for the liberals and modernists. But, politically it was also very important to reform the penal law because of the capitulations in Iran. The capitulations were extra territorial agreements imposed on Iran by the various European powers starting, you know, in the 19th century.
And, these gave European merchants preferential tariff rights, for example, in Iran. And, they gave European citizens – what we call today diplomatic immunity if they committed a crime or they were accused of committing a crime – they couldn’t be tried in the local courts. They had to be tried in their own embassies or in mixed courts. Now, part of the reason that the Europeans, I mean, the Europeans justify these is by saying, we can’t possibly allow citizens to be tried in your courts because you have these terrible hudud punishments which are inhumane and go against any kind of conception of you know, modern human rights.
So, it was very, very important to reform the penal law for that reason as well. To abrogate the capitulations which was a major goal of the nationalist movement in Iran across the spectrum. And, here Mohammad Mosaddeq begins to come into the picture, okay. Mohammad Mosaddeq was, you know, of course, one of the leading statesman of the 20th century in Iran. He never served as a judge but, he had, you know, a very, very deep understanding of legal issues.
He did a PhD in Law in Geneva, okay. And then, he wrote a number of textbooks which were used in the secular law school that was set up. And he was a great inspiration to the kind of young jurists, you know, within the new system. He produced a short book on the capitulation, where he argued in Islamic legal terms that the principle of zarurat – zarurat in Islamic law means necessity means that we can put aside Islamic prohibitions in the interest of, pragmatic interest of necessity, okay. And in this case, the necessity is defending Iranian sovereignty, you know, which has been, you know, violated by these capitulations which are essentially a form of colonialism, okay.
And, under these conditions, we can put the Islamic penal law aside and replace it with the secular penal code. Sayyed Hassan Modarres was also instrumental in persuading, you know, some of the more conservative clerics that the secular penal code was acceptable in the country.
After three attempts to institute a modern secular penal code in 1926, a secular penal code was promulgated which in Article 1 paid lip service to the Sharia but, which de facto secularized the Iranian penal law. So, there was some important institutional developments during this earlier period, as I mentioned. The kind of system that emerged is the Shamah which I said it is a kind of hybrid system of civil law existing alongside elements of Sharia law mainly in the seat in the realm of, you know, marriage and wills and inheritance and divorce, okay. Most of the judges were clerics. But, a small number of secular judges and lawyers begin to emerge during this period.
The system was called the Adliya and had a very, very bad name according to the newspaper reports in the period, which I read quite carefully. It had generally a very, very bad name as a public, as being ineffective as being corrupt. Now, that shouldn’t surprise us. I mean, you know, it was constructed with very, very few resources, with very, very few personnel, trained personnel, okay. So corruption and what have you and malpractice is no surprise. I think the significant thing, legacy of those early reforms is the institutional capital which the reforms gave to Ali-Akbar Davar who was the pioneer of reforms in the second period, if I cannot turn to that. So, the second period of reform runs from 1926 to 1941. And, it happens on the ridges of the Pahlavi states, okay, and Reza Shah’s rule.
Reza Shah put a great emphasis on legal reform, okay. Primarily because he wants to abrogate the capitulations on nationalist grounds, okay. And it has a great amount of support amongst the kind of you know, large sections of the kind of political community in Iran. Reza Shah also wants to be seen even though, despite his autocratic impulses, okay. He wants to be seen as a constitutionalist monarch. And, I think, that’s very, very important to bear in mind.
He appointed the dynamic politician Ali-Akbar Davar to be the minister of justice in 1926. And if I can just speak a little bit about Ali-Akbar Davar is an interesting character. He entered the judiciary as a young man in 1911. But, then he was, he went to Geneva, okay, to act as a guardian for the son of a wealthy Tabriz merchant, okay. He then came back to Iran and he became a group of kind of intellectuals and politicians who, you know, greatly supported Reza Shah, Reza Khan’s rise to power.
He’s at a journal called Mard-e Azad, okay, in which his kind of political outlook is very, very clear and very, very etatiste, yes, statist. He frowned upon the politicians of the constitutionalist era who he saw as liberals who done nothing for the country. And what the country needed to drag into the modern era and throw off the shackles of colonialism was a very, very strong state, okay. And even a dictatorship at that time, he seems to go openly for a dictatorship in the pages of Mard-e Azad.
But, it is important to bear in mind what he wanted was a legally constituted dictatorship. What I call etatiste legalism in my book. Rather than an arbitrary rule. This is a very, very important dimension, I think, of his kind of outlook. So, he became Minister of Justice in 1926 and he dissolved the old judiciary in that same year the Adliya. And six months later he set up a new judiciary under the Persian name, “dadgostari.” Now, Davar is often seen as the kind of, you know, hero who single handedly created, you know the Morligo system in judiciary in Iran. But, I’ve argued that even though he clearly achieved a great deal, okay, he didn’t start from scratch. He inherited a great deal from the reformers before him.
The basic thrust of his reforms were centralization, secularization and the establishment of the legal system in, you know, more parts of the country. Beyond Tehran beyond the biggest cities, okay. And he did much of that. You know, under his ministry the legal system became more robust, it became better financed, it began to have oil revenues during this period of course. And, he sets up and becomes more disciplined. He sets up a disciplinary court for judges.
Which is double edged on the one hand, it did institute more, you know, discipline on judges but it also helped to control them, okay. And in the series of reforms between 1928 and 1932 he gradually stripped the Sharia courts of more and more of their powers so that by 1932 they only have powers over marriage, divorce and guardianship, okay. Now, those are very, very important developments. But, in doing them, he actually, you know, much of the time, he really amended legislation and codification that had already existed before. For example, the code of civil procedure. It was basically an amendment of the previous law, the Principle of Trials, okay. And then, the civil code which is sometimes cited as the greatest achievement of the Davar period, as we mentioned earlier. Had been largely drafted by Fatamil Khomeini in the earlier period.
So, what is no doubt, Davar achieved a great deal in terms of centralization secularization institutionalization greater discipline, okay. You know, he inherited a great deal from previous reformers. I think he was very, very shrewd in the way that he expanded the system especially in the way that he dealt with the Ulama. He was pragmatic and shrewd about this. He incorporated many of the Mujtahids the higher clerics, okay into the new system. Those were, they were willing to go into the system. He brought them in as long as they put, shaved off their beards and put aside their turbans and put on a more modern western clothes, my grandfather did that. So, he did this a pragmatism, you know there are more secular judges at this time, okay.
But, there was still a need for clerics. But, he also did it in order to give the clerics a stake in the new order. Those clerics that were willing to go in, not all of them went in, of course and some of them vociferously opposed this modern organization but, not all of them did. You know, a significant number did go in if the higher clerics did go into the new judiciary and they shaved off their beards and adopt the European and don European clothes in that period. And, so, then to sum up what emerges at the end of that period is a much more widespread judicial system which is established in all of the main cities and most of the main towns of Iran, okay. One which is more disciplined, better funded, okay. And, which according to the accounts, existing accounts at that time, eyewitness accounts for an office report, was more efficient, okay. And, at least for a while, more independent.
The previous system did have some independence but, it’s very, very messy and arbitrary as well. And, now, Davar eventually cut this off, this independence by introducing a law which basically took independence of judges away from them. A law to reinterpret the constitution to remove the security of tenure for judges.
So, it became, the judiciary became more and more control, under the control of the executive branch as well under the Davar that also happened, okay. Now, what happened under Mohammad Reza Shah? So, by 1941 by the end of Reza Shah’s rule you have, you know, a largely modernized and largely secularized legal system. You know, the civil code is still based on Shia fiqh. But, the rest of the law codes are secular by its largely western models and the institutions the court have been brought under state control and are largely peopled with secular judges.
So, this process of reform largely finishes in 1941. But, I doubt it if we can really understand this legacy unless we look at it in a long due way. We like to kind of judge, I think, the system, the legacy of the system. Follow here the Mohammad Reza Shah period a little bit, okay. Because many of the judges and the lawyers who worked in the system, you know, survived well into the Mohammad Reza Shah period.
And, you know, the kind of, the features of the system kind of unfolded more during that period as well. In a very, very different kind of political context, okay. So, in 1941, Reza Shah is forced into exile and Mohammad Reza Shah takes over and you have a period of greater pluralism and political openness in Iran. And, that also means that the judiciary can summon some greater independence from the Executive Branch during that period.
And, that’s reflected in a number of court cases, important court cases which took place in the 1940’s and 50’s in which the judiciary was more independent. For example, the, one of the most famous ones was the cold case of Mokhtari, one of Reza Shah’s police chiefs, okay. And 13 of his accomplices and also a man called Pradesh Ahmadi who is the prison doctor. These people were accused of killing prominent politicians. People like Mosaddeq for example. And also communist, you know, torturing communist prisoners and things like that. And they were all found guilty in the Mokhtari trial. Mokhtari was pardoned by the Shah eventually but Pradesh Ahmadi received the death sentence, okay. There were a number of other cold cases small scale cold cases after that as well, which, you know, saw the judiciary acting in a more assertively.
One of them saw the Supreme Court striking down military courts for the first time. You see Military Courts were unconstitutional, okay. So, you begin to see a greater element of this liberal legalism kind of express itself in the system during this period, okay. Now, that period culminates a great openness, culminates with the premiership of Mohammad Mosaddeq in 1951. And as we mentioned Mohammad Mosaddeq was a great liberal legalist. And, he put a great deal of emphasis on reform in the legal system as well.
And, broadly tried to do three things to the legal system. First of all, he tried to, yes, first of all he repealed the legislation that Davar introduced. Removing the security of tenure for the judges. He reestablished the security of tenure of the judges, okay. Secondly, he created a judicial supreme council which was designed to democratize the election of judges. Yes. So, judges will be elected by their kind of rank and file, you know, colleagues, under this new system. Rather than being appointed by the Minister of Justice, which had happened under the previous system. Quite often the Minister of Justice would appoint or would have a heavy hand in deciding who would take up high judicial positions, okay. And this was now to be done by an independent judicial council.
Thirdly and most importantly, he gave the Iranian Bar Association independence for the first time, okay. Now, of course he was ousted in a coup in 1953 and his reforms were not implemented, at least some of them were implemented, but, the third one I mentioned, the independence of the Bar Association remained on the statute books. And that was a very, very important development. Because, the Iranian Bar Association became the backbone of the liberal nationalist opposition to the Shah later on in the national front. And you saw develop within the legal profession. A very, very powerful culture of liberal humanism, of human rights, of you know, campaigns against, you know, torture and things like that.
After Mosaddeq’s demise there were broadly two attempts to institute the rule of law. It did not just all end with Mosaddeq’s demise, there were two, I think, smaller attempts. One was on the Hedayati, the Minister of Justice Hedayati, okay. He tried to establish a conse d’Etat, okay this is a kind of an institution taken from the French system which has the powers to strike down legislation issued by the Executive over the legislature, okay, on constitutional grounds, yes. So, he tried to create a more powerful check on, you know, the Executive Branch, in doing that.
It never came to fruition, the Shah did not let it happen, okay. But, I think, it’s important to kind of register that he tried to do that. His successor Nouraldin al-Amoudi who was actually an ex-communist, he was one of the 53 who was tried in the 1930’s. He became a judge and he embarked on a very, very kind of passionate anti-corruption drive. Which saw him, you know, carry out prosecutions against leading members of the political and military elite in the country. And, he was eventually removed from power as well.
And, I would say that al-Amoudi’s attempts to institute the rule of law, probably the last serious attempt to institute, a kind of more liberal rule of law in the Pahlavi period, okay. After that the Pahlavi state becomes increasingly authoritarian, okay. Increasingly autocratic and the judiciary becomes increasingly subordinated firmly to the executive power. It had some measure of independence before that, okay. But increasingly becomes subordinate to executive power. And, the kind of the pattern that emerges during that period is political dissidence dealt with either through extrajudicial murder, okay, or mainly through military courts, okay. The military courts dealt with political dissidence and the ordinary judiciary, you know, dealt with civil and criminal law. And in that realm of ordinary civil and criminal law having argued, you know, it was relatively liberal and humane. For example, very, very well issue of death penalty, okay. Death penalty happen when people killed and disappeared for the rest of their courts but it happened outside of the jurisdiction of the ordinary courts.
And, so, like I said, I think, to judge the legacy of this whole story of the reforms after the constitutional revolution, we really have to look at the longer period, the longer dure. And look at how the system was operating by the 1960’s and 70’s, okay. And, I just finished by summarizing that. Clearly, you know, the rule of law, a full blown Lockean rule of law wasn’t established in Iran, okay. You had, you know, some kind of mixture between a legalist dictatorship and arbitrary extra judicial killings okay. From most of the, both that’s a part of the first Pahlavi period and certainly the later part the second Pahlavi period.
But, having said that, I think in the realm of ordinary civil and criminal law, by international standards, a relatively well functioning judiciary was created as a legacy to the constitutional revolution. It’s very difficult to, you know, to talk about this, you know, to kind of competently, okay. I didn’t do too much research on this in my book. This is an epilogue.
But, based on the three existing independent reports which were written on the legal system in the 1970’s, through them written by an American and one more extensive one written by two, a Swiss jurist in conjunction with an American. All three of these reports, you know, more or less, you know, confront the same things. They all, three of them, talk about how terrible the human rights situation is in the country. But, they all also talk about how, by international standards, Iran has a relatively advanced legal profession, okay, and judiciary, both of which are characterized, the kind of powerful culture of procedural finesse, okay, and liberal legalism, yes, protection of rights especially in the legal profession, okay, which had this independence from the state.
So, I think, you know, what’s important I think to bear in mind about the judiciary which emerged during this time, is that, it had a certain amount of legitimacy. I would argue it had a certain amount of legitimacy in the eyes of ordinary Iranians. Of course, many Iranians, you know, would poke fun of the judiciary, there were lots of jokes about, you know, how corrupt it is, how inefficient it is.
But, at the same time lots of Iranians use the courts in large numbers, okay. And, it did gain a certain amount of legitimacy in their eyes. And, that contrasts with post-colonial states like, let’s say, India and Pakistan, you know, that’s a very, very stark contrast with that. In which the legal systems in both those countries were created by the British, okay.
The law was always framed in English. And, especially in Pakistan, large sections of the population stay well away from the courts for a number of different reasons, okay. That did not happen in Iran. By the 1960’s and 70’s large numbers of Iranians were using the courts. I would say that was happening as far back as the 30’s and 40’s actually. From the sum of fragmentary evidence and statistics that we have from that period. So, this was important. I think the best way to summarize the judiciary under the late Pahlavi system is using a term used by an Egyptian scholar, Tamir Mustafa, he is describing the judiciary under Mubarak, insulated liberalism. What that means is, that you have a configuration which is unusual but not completely unique. Where you have a relatively liberal and humane judiciary but respond independent legal profession, okay, in which civil and political rights are relatively well realized. Of course, it also is a problem still, but, the relatively well realized death penalty was rarely issued and people largely trusted this kind of system.
But, this existed within the context of a profoundly illiberal and authoritarian and often brutal regime, you know, the Pahlavi regime and the SAVAK abuses which were committed under it. So, the insulated bit is the judiciary and the legal system. Unlike as I found elements of this in at least in the 90’s in Mubarak in Egypt under Mubarak, you can argue this happened in Spain under Franco as well where the judiciary is much more humane and liberal than the regime itself. And in Chile under Pinochet. Okay, finish with that for the time being.
What was that?
How far back was it?
An interesting feature of the constitutional movement was the participation of merchants, large scale merchants in the movement and their support for modern commercial law, okay. One of the attempts, reform in the 19th century, if we can go back to the 19th century was the establishment of a council of merchants, okay. And, this was a, one of the first attempt maybe you could call, for establishing the beginnings of a kind of modern public sphere in a modern civil society in Iran. This was an institution. Didn’t last very long in the 19th century. It lasted about a year or two, I think. Which had independence this formally from state authorities and from the clerical authorities, okay. And was technically in purely the hands of merchants. And, it was designed to kind of promote the interest of merchants as a kind of lobbying group, if you like. But, most importantly, it was also a judicial institution.
Commercial disputes technically had been controlled, you know, taken place in the Sharia courts. Of course that has always been informal merchant courts. But, this had been, this was for the first time that actually been formalized into a kind of council recognized in law. And, this reflected the changing needs of the merchant class in Iran. Who, first of all.
Oh, all right.
Oh, this reflected, yeah. This reflected the, I think, the changing context in which trade was taking place in the 19th century. Iran was becoming gradually incorporated into a global economy. And the kind of small scale, you know, legal techniques and instruments which merchants use which sort of largely based on trust and what have you, were no longer sufficient for dealing with long term trade, long distance trade. Of course, they were instruments in place by the traditional society.
But, in the context of modern companies — western modern companies and what have you – new procedures and laws needed to be put into place. So, the merchants scored on the Shah, Nasr al-Din Shah to establish a council which he did. This council had, like I said, as a judicial independence dealing with merchant disputes. And, one of the reasons they wanted this kind of independence was, like I said, they had a tradition of that.
But, at the same time the Sharia courts were often problematic for merchants because of this practice of nasekh va mansukh which I mentioned earlier, contradictory rulings. You know, this isn’t good for business. You know, if one merchant can get a ruling from a court and then the losing merchant in that dispute can take the same dispute to another Sharia court and get an opposite ruling, okay, it doesn’t do a great deal for, you know, business, you know, regularity and predictability which is of condition for, you know, economic growth and doing business on some kind of rule of law. Predictable rule of law.
So, they established this. And, some of the conservative Ulama were not happy about this. I mean, some of the governors and some of the conservative Ulama basically torpedoed this initiative in the 19th century.
But, the merchants continued to campaign for modern instruments of corporate legal governance. You began to see the first joint stock companies emerge in the late 19th century as well. But, these emerged again without the proper framework of company law, yes? Now, strictly speaking company law, I mean, there isn’t a traditional company law in the Sharia for example. Because, the Sharia, except for very marginal cases, doesn’t recognize corporate legal personality. Sharia is highly individualistic. The legal subject of the Sharia is the individual person. And that happens in, punishment that happens in business as well. And the idea of limited liability is completely alien to Islamic law. Full responsibility of the lender or whatever, you know, is very, very important principle in Islamic law. Full responsibility of the criminal for example.
That’s a very important dimension of it. And, so, commercial law was brought in gradually in phases. The first commercial code was in 1915 and then several other versions were brought in, I think the final version was in 1932, but, eventually this instituted company law. With joint stock companies with limited liability. So, you know, so, socializing at the risk to some extent. Yeah. You know, one of the kind of props of the modern capitalist order was brought in. I have to say this was something which the Ulama didn’t seem to make a big fuss about. Yeah. The ulama would often say, you know, to a particular law or sections of the Ulama this law is against the Sharia. When it came to the hudud for example, reforming the penal law or reforming aspects of the civil law, but, they didn’t make a big fuss about passing this modern company law.
The other dimension of reform is this 43 dimensions. One is the company law, the commercial law, the other dimension was the civil code. That was also a very, very important. Okay. The civil code was based largely on Shiite law but with some modifications brought in from French law. Especially in the area of contract. Freedom of contract was established in the civil code. And, contracts based on future, future commitments was also established and technically speaking, that is not allowed in the Islamic law. Or at least, you know, some of the main schools of Islamic law. Selling something that doesn’t already exist as the Hadif from the prophet say you can’t, you can’t sell something that doesn’t exist. And it’s passed over at that time of the kind of transaction. So, that was also brought in with the civil code. So, the civil code alongside the company law began to build the kind of legal framework for the emergence of a modern capitalist economy in Iran.
The other dimension which was, you know, also something which merchants, which merchants were unhappy about in the 19th century was the weakness of property rights and the backwardness of property registration, institutions in Iran. This, as I mentioned before, meant that, you know, there were all kinds of avenues for fraud. When it came to property ownership and that’s what I meant, property disputes could go on for a long time. And, sometimes this could cause serious social unrest in some parts. Especially land disputes in the countryside. Now, land registration law is reporting again in phases starting in 1911 and ending in the 1930’s and the effects of having more instituted and compulsory land registration were complicated. The emerging bourgeois in Iran and the emerging kind of the ruler elites took advantage of this new land registration laws.
And, what effectively happened was, you had wide scale privatization of previously existing customary land. Which, was used by tribes and the peasants, you know. Who didn’t understand the need to register, or the kind of the procedures to register and that was often done by either businessmen in the cities or by tribal magnates who understood the advantages that came with the registration. So, what those land registration laws did was they increased the proportion of privately owned land very, very dramatically in Iran. At the expense often of peasants and tribesmen. And, there are some interesting anecdotes so there of peasants and tribesmen using the law against those elites. And taking, you know, land disputes of whole villages sometimes which had been taken over by, I don’t know, local tribal magnates or someone from the merchant from the city, okay, and gaining their rights in the courts.
Those who understood the law and understood that they had rights under the law, sometimes use the courts. And, sometimes use these laws which were often, you know, instruments of elite power to establish their own rights. So, there was always this kind of tension and agonistic element within property rights law. I mean, this exists everywhere. I would argue, it’s a dimension of law. Law is very contradictory. On the one hand it can be very, it’s an instrument of elite rule of class rule of the bourgeois, of land owners. But, it can also be used by, you know, ordinary people to defend their rights. You know, it’s also an instrument of citizenship and of democracy. It’s contradictory in that respect. And you saw some of these contradictory dimensions of law come out even in the kind of early period in Iran. In the 1930’s and 40’s when the system was being constructed.
I don’t know, I don’t know about that, I’m afraid.
You mean no western countries.
Like China or yeah. That’s really interesting but I, yeah Russia. Well I mean that the overarching thing there was capitulations. I mean, with Russia. Russia imposes the most infamous capitulation treaty what the Russians wants. The Treaty of Turkmenchay. So, you know the international, well, it wasn’t international trade, it was traders from Russia for example living inside Iran would benefit from, you know, extraterritorial rights. And, this also made the merchants very angry. This fits in with what we were talking about before. Merchants didn’t like that. You know they were existing in this kind of very, very unequal regime where, you know, Russians, British, French, Spanish, I think Dutch, they all had capitulation rights inside of Iran. And this was a huge humiliation to the merchants but also to Iranian nationalist sentiment, generally.
And this was not the reason why merchants wanted this kind of legal reform. Even if it meant marginalizing the Sharia. Most of the time many of the merchants were very devout people. You know, and often they married their daughters and what have you to Ulama members. So those are quite close knit relationship between the Ulama and the merchants historically. Okay. But, at the same time it is the large scale merchants who, you know, pushing for reforms because they wanted, you know, better regimes of corporate governance, but because also they want to get rid of these capitulation as well.
I mean, some of the main, the leading newspapers of the constitutional period were set up by merchants. The most famous was Habl a-Matin. Habl a-Matin was funded by merchants. And, that was a very, very pro constitutionalist paper and it would contain reports about, you know, all these opinion pages of edge, if you want to hold on that, again calling for modern legal reform and this kind of thing. In terms of actual international trade, I don’t know about that I’m afraid.
Oh. I’ve never done anything like this before. I thought it would be nice to try it out. I’ve shied away from the media work and I thought maybe it might be a nice way of building up some experience and confidence for doing that.
I was very, very flattered that someone had read my book and they were interested in it and they wanted to talk to me about it. And, yeah, I guess, it’s always good to talk to different people about the, you know, this subject and to try to reformulate it and exchange ideas about it, you know, in the process of doing that, you know.
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