Law, State, and Society in Modern Iran

Constitutionalism, Autocracy, and Legal Reform, 1906–1941

H. Enayat

• Publisher: Palgrave Macmillan
• Year: 2013
• ISBN:
  9781137282026
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

Using a 'Historical Institutionalist' approach, this book sheds light on a relatively understudied dimension of state-building in early twentieth century Iran, namely the quest for judicial reform and the rule of law from the 1906 Constitutional Revolution to the end of Reza Shah's rule in 1941.

Chapter 1

Law, State, and Society in Nineteenth-Century Iran

One of the laws of this people [the English] is that no person dominates another person. If the king or a prince should wish to punish or dismiss a servant, the latter may complain in court. The justice official will summons both parties and they will face each other and settle the matter. If a superior should issue an instruction whereby an inferior is harmed or defamed, and the inferior complains, the judge’s verdict is implemented. In order to maintain due courtesies, the king’s lawyers are always present in the courts of justice . . . and they scrupulously avoid capital punishment and try to ensure that no verdict of execution is issued by the court.

—From the travelogue of Abdol Latif Shushtari, eighteenth century.1

REMINISCENT OF MONTESQUIEU’S PERSIAN LETTERS, THE PASSAGE from Shushtari’s travelogue reflects the attitude of many nineteenth-century Iranian reformers who saw European states like England, France, and Russia as paragons of legal government in stark contrast to the despotism and arbitrary rule that prevailed in their own country. Indeed, in some modernist discourse from the nineteenth century, Iranian society is sometimes depicted not only as plagued by arbitrary rule but as completely lawless.2 How accurate were these views? Were these modernist reformers “Westoxified” in their attitudes to the institutions of traditional Iranian society and guilty of “legal orientalism” in their depiction of it?3 This chapter will set the scene for the rest of the book by analyzing relations between state and society and discussing the nature of law and legal institutions under the Qajars. It begins by sketching the sociopolitical characteristics of the Qajar state. Since the ulama were the social group most affected by the legal reforms of the twentieth century, particular emphasis will be placed on the relationship between them and the state, and their respective legal institutions. The largely failed attempts at legal reform under Naser al Din Shah are also assessed by comparison with the Ottoman Empire where the Tanzimat reforms of 1839–1871 were relatively successful.

The Qajar Monarchy

Throughout the nineteenth century Iran was ruled by a dynasty that originated in a Turkish tribe of Central Asian descent. The Qajars began to establish their hegemony in 1786 after a century of political instability and social decline that followed the collapse of the Safavid Empire. They co-opted the bureaucrats of the previous Zand dynasty, and around the turn of the nineteenth century, under the second Qajar monarch Fath Ali Shah (1782–1834), a rudimentary central bureaucracy took shape, consisting of a public treasury theoretically divided into a public and privy purse and military and financial ministries.4 Revived central government in this period brought “increased social homogeneity, an expanding economy, and gleams of cultural and religious revival.”5 But persistent financial difficulties, rampant factionalism, and corruption meant that, despite the growth of a central administration over the years and a proliferation of its functions, the Qajars never managed to build a state-wide bureaucracy on the Ottoman scale. Qajar rule thus displayed many of the features of classical patrimonialism identified by Weber. The kingdom was an extension of the shah’s household and subject to his personal authority. There was no distinction between property and office, and offices were often sold as a source of revenue and patronage by the shah and his officials.6 Nor was there a standing army, which meant that the shah had to rely on often unpredictable tribal levies.7 This combination meant that, for more than a century, the Qajars ruled through a “parcellized” system of prince-governors, pursuing a policy of divide and rule both at the heart of government and on its periphery—a strategy that, for several decades, was successful in a country composed of a myriad of tribal, religious, and ethnic groups.

Theoretically, under the Qajars there were no formal checks on the power of the shah, although both the shari‘a and the Iranian-Islamic theory of the “circle of justice” acted as a kind of informal constitution.8 The most important principle regulating the monarch was justice (‘adala), recognized in both the shari‘a and the Iranian-Islamic theories of kingship as the primary duty of the ruler.9 Although the formulation of the circle of justice varied from author to author, Iranian theories of kingship typically identified four social groups: men of the pen, men of the sword, men of trade, and men of agriculture. Just government was defined as one that created a balance between these estates and placed individuals in the appropriate station in life according to their rank and nature.10 Vanessa Martin has argued that this equilibrium was achieved through negotiation on the basis of acknowledged rights and obligations. The shah had the duty to protect Shi‘i Islam and the community of believers. In exchange, it was his right to expect his subjects to observe their duties and recognize his authority.11 More broadly, the shah had to mediate the interests of the various social groups whose relationships with the state were always in a precarious balance: tribal leaders and other local powers; clerics; merchants; and, to a lesser extent, peasants and artisans. Land, hereditary pensions, and grand titles were allotted to officials, notables, and army officers who had to repay him with their services and loyalty. Where necessary, he would punish them through dismissal, banishment, or execution.12 Later in the century, when he was always pressed for funds, the shah attempted to balance the equation through practices such as the sale of offices, including provincial governments, to the highest bidder.13 The shah also sat at the apex of ‘orfi (customary law) jurisdiction, and the doctrine that justice emanates from the crown was carefully maintained throughout the period.

The normative framework provided by the shari‘a and the idea of the circle of justice was a significant factor in regulating the actions of the shah. Deviation from it could lead to a crisis of legitimacy, especially in the eyes of the clerics. If the shah was seen as acting unjustly, protests would often invoke the language of the circle of justice. This normative framework did not, however, generate institutional or formal legal constraints on the shah’s power. As Percy Sykes noted, the shah was an “absolute monarch” in whose person “were fused the threefold functions of government, legislative, executive and judicial, he was the pivot upon which turned the entire machinery of public life.”14 Compared to the Ottoman Empire, where the shaykh al-islam could theoretically remove the sultan for violating the Holy Law, the shah faced no immediate institutional checks to his rule.15 The office of shaykh al-islam did exist in Qajar Iran but had none of the power and authority it possessed in the Ottoman Empire. Thus, although he had to be seen as a “just ruler,” the real basis of the shah’s rule was force. Qajar monarchs used “intimidation, military repression, summary executions and a variety of brutal punishments, the purpose of which was ‘ebrat (example).”16 Ministers and state officials who stepped out of line or were seen as threats were dealt with ruthlessly. The execution of the reforming chief minister Amir Kabir on the orders of Naser al-Din Shah is but one example. Yet despite the lack of formal checks on the shah’s power, the state was weak. Since it lacked a standing army, power was devolved to provincial governors, mostly royal princes who would maintain law and order, often brutally and arbitrarily, with little or no control by the center—a major source of discontent in the late nineteenth century.

The Shi‘i Hierocracy

Unlike in the Ottoman Empire, religion and state in nineteenth-century Iran existed on separate institutional registers with the Qajar monarchy coexisting alongside a Shi‘i hierocracy that theoretically viewed all political authority—except that of the Imams—as illegitimate.17 This outlook has led some historians, notably Hamed Algar, to argue that the Iranian ulama were in perpetual conflict with the state.18 Others, however, have portrayed a more complex, nuanced relationship.19 Under Safavid patronage, the clergy had realized the advantages of cooperating with rulers.20 A quietist tendency became the norm, and there was a de facto acceptance of temporal authorities in conformity with the ancient Persian theory of kingship that perceived the “sisterhood” of religious and state institutions as essential for the endurance of both.21 While the state maintained peace and order, upheld the shari‘a, defended the domain of Islam, and in effect, guarded the ulama’s vested interests, they were, in turn, expected to maintain good relations with the state and generally confirm its legitimacy. Under the Qajars, the predominant view among the ulama continued to be that “religion and state must co-operate to protect Shi‘i Islam and its homeland Iran and many clerics sought “accommodation and partnership with the shah,” even though the dynasty always lacked the religious legitimacy of the Safavids.22

Nonetheless, the emergence in the late eighteenth century of a Shi‘i hierocracy that was structurally independent of the state created a configuration distinct from what prevailed under the Safavids. This development was rooted in a conflict generated by the internal jurisprudential divisions of Twelver Shi‘ism. With the disappearance of the Twelfth Imam in 837 CE, certain Shi‘i scholars had argued that it fell to them to explicate the divine message and the law, causing from as early as the eleventh century, a rift between two schools known respectively as the Akhbaris and Osulis. For the Osulis, during the occultation, the practice of ejtehad—independent interpretation of the shari‘a—was essential. Akhbaris, on the other hand, rejected ejtehad on the grounds that it produced only probable knowledge and regarded the akhbar—the Prophetic sunna (traditions) as transmitted by the infallible Imams—that, by their very nature, produced certain knowledge, as the sole source of legitimate knowledge. Osuli jurists rejected the notion of taqlid al-mayit (the imitation of a dead man) and advocated that, in the absence of the Imam, each generation needed a mojtahed, a scholar qualified to exercise ejtehad, to interpret the law.23

The Akhbari-Osuli dispute reached its peak in the eighteenth century when, among Iranian Shi‘i divines, the Osulis emerged victorious. With their victory, a scholarly hierarchy developed that started with the ordinary mullah and went all the way to the supreme jurist, the marja‘-e taqlid—source of emulation—whose position was institutionalized through the life and work of Shaykh Mortaza Ansari (d. 1864).24 The upper rank of the Shi‘i hierarchy were the mojtaheds, those entitled to engage in independent interpretations of the law. Ranks and promotion within ranks were granted and administered by scholarly faculties in the great Shi‘i centers of learning in Najaf, Karbala, and much later on, Qom. The Shi‘i hierocracy was, however, a loosely organized body. There was no formal hierarchy of authority among the mojtaheds themselves. Status among the lower ranks was determined by that of the particular mojtahed on whose patronage lower clerics depended and on an informal scale of prestige and education. As Said Amir Arjomand points out, this amorphous internal organization hampered the mojtaheds’ ability to act collectively in the face of external threats such as the Babi rebellion, which was largely put down by the Qajar authorities.25 Nonetheless, by the middle of the century the Shi‘i ulama had developed into a formidable social group that had its own resource base. The victory of Osulism had established the right of the mojtaheds to collect religious taxes known as sahm-e imam (share of the Imam), and the income from these—as well as revenues from charities and waqf endowments—turned the clergy into an increasingly independent and powerful estate. Clerics provided legal and educational services and possessed considerable authority over the masses. They also had strong links with the bazaar where they often dealt with legal disputes among merchants and generally lent respectability to bazaari activities. Intermarriage between clerical and merchant families was frequent.26 We should note, however, that the ulama were a very diverse group in socioeconomic terms, and these observations apply mainly to the leading clerics in an urban context.27

Shi‘i Legal and Judicial Theory

Shi‘i legal theory differs from Sunni theory in several respects. Sunni jurists recognize the authoritative legitimacy of the Qur’an, the Hadiths, ejma‘ (consensus), and qiyas (analogical reasoning). Shi‘i jurists recognize the Qur’an and the Hadiths of the Prophet but also the Hadiths of their Imams, especially those of the Sixth Imam, Ja‘far al-Sadeq (d. 765). The four great collections of Shi‘i Hadiths were compiled by Kulayni (d. 940), Ibn Babawayh (d. 991), and Tusi (d. 1068).28 The legitimacy of ejma‘ as a source of law has had an ambiguous and shifting status within Twelver Shi‘ism. Until the disappearance of the Twelfth Imam in the ninth century, it was rejected, since all guidance and authority was in the hands of the Imam. After the occultation, the Shi‘i ulama assumed the functions of guidance and interpretation, and consensus was recognized as a legitimate source, though it never gained the certainty and authority it had for most Sunnis.29 With the victory of the Osuli school of jurisprudence, the authority of living and independent mojtaheds was emphasized. Thus consensus was once again devalued due to the polycentric structure of authority in which different, and even contradictory, rulings by respective mojtaheds carried theoretically equal validity.30 Finally, as noted earlier, Osuli Shi‘is recognized the right of the learned ...

Table of contents

• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction
• 1. Law, State, and Society in Nineteenth-Century Iran
• 2. Law and Justice in the Mashrutiyat, 1891–1911
• 3. The Struggle to Establish New Laws and Institutions, 1911–1926
• 4. The Reforms of Ali Akbar Davar and Beyond, 1926–1941
• 5. The New Legal Institutions in Practice, 1906–1941
• Epilogue: The Judiciary under Mohammad Reza Shah
• Conclusion
• Appendix I: Chronology of Legal Reform (May 1911–June 1940)
• Appendix II: Miscellaneous Court Statistics, March–June 1932 (Farvardin–Khordad 1311)
• Notes
• References