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The History Of Law And Justice In Iran
The history of law and justice in Iran can be divided into at least seven distinctive historical periods:
- Pre-Islamic;
- Islamic Sunnī;
- Islamic Safavid (Shīʿī Iran);
- Qājār;
- Constitutional Revolution;
- Pahlavī; and,
- Islamic Revolution.
This article focuses on developments in the Iranian legal system from the sixteenth to the early twenty-first century, examining the dynamics of its interaction with sociopolitical environments and major political discourses including monarchism, Islamism, constitutionalism, and modernism.
Islamic Safavid Period, Shīʿī Iran
Prior to the Safavid conquest of Iran, Shīʿī Islam was not hegemonic in the region. Under the Safavid dynasty (1501–1722), however, Iran’s rulers imposed a legal and judicial culture based on Imāmī Shīʿī jurisprudence. The Safavid shahs, acting as deputies of the hidden twelfth Imam, made the Shīʿī clergy an official partner in state power.
It was during the Safavid period that Imāmī Shīʿī jurisprudence produced the two distinct and competing sub-schools that have ever since dominated Imāmī Shīʿī thought: the Uṣūlī and Akhbārī schools. Uṣūlīs favored a methodological and rational understanding of sources, whereas Akhbārīs, viewing rationalist treatment of texts as harmful substances imported from the secular Greek, preferred relying exclusively on transmitted texts of the Masum imams. This development shaped the interplay between Shīʿī jurisprudence and the public sphere during the centuries that followed and persists in the early twenty-first.
Alongside the state-appointed clerical judiciary (Ṣadr justice), the Safavids had a central justice administration (dīvān-i ʿadālat) that was a model of maẓālim (state discretionary) justice. The head of the dīvān-i ʿadālat was called the dīvānbegi (equivalent to the Office of Lord High Justice, an institution elaborated under Ilkhanid and Timurid rule). The Dīvānbegi was the chief justice of Iran, who controlled all Sharīʿa courts and worked jointly with the chief Ṣadr to try major crimes as well as civil cases. The office of Ṣadr, modeled on the Sunnī office of the qāḍī (judge), had exclusive jurisdiction over cases of family law (marriage, divorce, custodianship, inheritance, and testament bequest) and the resolution of conflicts in civil disputes over land and water. In this way, although the parallel systems of the Shah’s justice (maẓālim) and Sharīʿa judiciary coexisted, the clerical judges enjoyed greater power. Secular judges, on the other hand, generally took commercial and administrative cases but had to respect the decisions of the ṣadrs as the highest Shīʿī legal position.
In post-Safavid Iran, Nāder Khān Afshār (r. 1736–1747) emerged to establish the Afshārid dynasty (1736–1802). Nāder Shah essentially maintained the legal order of the Safavids, as he was preoccupied with his conquests and battles with Turks, Afghans, and Moghuls. Nādir himself dreamed of an Islamic empire and tried to reconcile Sunnīsm and Shīʿīsm, establishing an inter-religious council of Shīʿī and Sunnī scholars in Najaf. However, as the state was preoccupied with wars and conflicts, it could not supervise judicial affairs sufficiently. The centralized judiciary of the Safavids thus was damaged, and, as a result, informal types of conflict resolution proliferated under the control of military commanders and tribal and religious leaders. After the collapse of the Afshārids, gradually, the remaining functions of state justice and the legacy of the premodern nation-state building efforts of the Safavids faded away. In these circumstances, the role of Shīʿī clerics in judicial affairs expanded, although they remained individual and unorganized. Supported by elders and community leaders, they became the first points of reference for conflict resolution in the land.
The Qājār Period
The Qājārs were a Turkmen tribe that, despite a consistently weak state, was able to sustain a relatively long rule over Iran (r. 1785–1925), a period that coincided with the beginnings of industrialization and the advent of modern legal systems. The weakness of the central state under the Qājār shahs created opportunities for powerful figures to exercise greater authority in society. These included leading Shīʿī jurists (mojtaheds), provincial and local governors, large landlords, and tribal leaders. The growing role of mojtaheds is particularly notable. Unlike the Safavids, sprung from a Sufi order, the Qājār rulers had no credible claims to religious authority of their own. They therefore facilitated the involvement of mojtaheds not only in the judicial domain, where they had traditionally dominated, but also in social, political, and even military affairs.
In the Qājār period, a form of customary law (qavānīn-e ʿorfī) was administered by state courts called dīvān khāneh. The jurisdictional distinction between Sharīʿa courts and the ʿorfī courts was murky. But because the Qājārs left the ʿorfī courts (and most other institutions of the central state) underfunded and underdeveloped, the Sharīʿa courts were the only effective courts in many parts of the country. In many areas, the Shīʿī clerics, with their access to the khums tithe collected from the populace as well as pious endowments, dealt with judicial and criminal policies at their discretion and without real state oversight.
While Shīʿī clerics were establishing themselves in this period, an important development took place within Shīʿī thought: the rationalist Shīʿī jurists movement (Uṣūlīs) triumphed over the Akhbārīs, whose approach to law and dogma was analogous to that of the Salafi movement in Sunnīsm. One significant practical result of the Uṣūlī triumph was the growing intervention of Uṣūlī mojtaheds in public affairs, especially judicial issues.
While these developments were taking place, European governments were beginning to interfere in Iranian politics as well as the Iranian legal system. Europeans claimed that Shīʿī clerics, who were playing an increasingly central role in the legal system, issued inconsistent verdicts in analogous cases. This was particularly troubling because Shīʿī jurisprudence did not recognize a principle of res judicata, and thus the ruling of one mojtahed was subject to review and reversal by another mojtahed. Complaints about arbitrary and inconsistent applications of law in the judicial system led the Russians to demand capitulatory rights after Russia imposed the Turkmenchai Treaty on Iran in 1828. Thereafter, the British, French, Belgian, and other European citizens all also received capitulatory rights.
Meanwhile, in the time of Nāṣer al-Dīn Shah (r. 1848–1896), the Persian court and urban intelligentsia were themselves becoming acquainted with European legal and judicial systems. Over the objections of the Shah, they began to push for reform of the Iranian legal system. Although supported by the great vizier Amīr Kabīr (1848–1851), these reforms progressed slowly. By promoting state control over arbitrary state courts and reducing the power of the clergy, Amīr Kabīr sought to institute structural reforms in the judiciary. But his tenure in office was short lived, and his execution by the Shah brought legal reform to a temporary halt.
In 1870s, a new attempt at reform began. Nāṣer al-Dīn Shah decreed that the old informal dīvān khāneh would become the Ministry of Justice, and a system of “justice boxes” would report injustices to the courts organized in urban centers. He also promoted some primary codifications and the formation of the first modern police force in Tehran, called the Nazmiyeh. In 1879, he appointed Count Antoine de Montfort, an Austrian-Italian police advisor, to the post of chief of police of Tehran. Witnessing the lack of modern laws, Count de Montfort immediately drafted a criminal and police law that is now regarded as the first codified criminal law of Iran.
Also in the second half of the nineteenth century, constitutionalism and the rule of the modern system of law and justice became a pressing public demand in Iran. In 1871, Mirza Yūsof Mostashār al-Dawleh published an influential work on the modern rule of law entitled “One Word” (a call for a unified state law, or qānūn). Later, some senior Shīʿī clerics gradually joined the burgeoning constitutionalist movement and played a significant role in the transition from the arbitrary rule of Qājārs to the Constitutional Revolution of 1905–1911.
The Constitutional Revolution
By 1905, complaints about the arbitrary and degrading rule of the Qājārs led to public calls for the establishment of an ʿAdālatkhāneh (a House of Justice), a vague but powerful ideal of an institution of rule of law. These calls led to the rise of a powerful grassroots social movement known as “the Constitutional Revolution.” The revolution soon resulted in the Proclamation of August 5, 1906, made by Moẓaffar al-Dīn Shah (r. 1896–1907), which granted the right to a constitution and established Iran’s first Majles (Parliament).
The first Iranian constitution was drafted on December 30, 1906. The document was modeled on the 1831 Belgian Constitution but was also influenced by the 1791 French constitution, the 1876 Ottoman constitution, and the 1879 Bulgarian constitution. In its first iteration, the constitution resembled an electoral law more than a classic constitutional text. However, on October 7, 1907, a “Supplement” to the constitution was enacted (again modeled after Belgian and French codes). The Iranian Constitution of 1906–1907, as amended, is regarded as the starting point of a modern history of law and justice in Iran. With only minor revisions, it remained in effect as the Iranian constitution until 1979.
The 1907 Supplement to the Constitution represented a compromise between secular constitutionalists and clerical leaders, who were themselves sharply divided into pro and contra constitution camps. Anti-constitution clerics called for a strictly Sharīʿa system and considered modern legislation to be a bedʿat (heretical innovation). Thus, a two-tier legal system with an ambiguous civil rights structure was constituted: the first and second articles ensured the Shīʿī identity of the nation and state, but they also established preliminary foundations for secular lawmaking and a modern justice system. Article 27 officially legalized the division of courts into both religious and secular courts.
Serious divisions began to appear within the constitutionalist camp by 1910. Most importantly, clerical and secularist supporters of constitutionalism began to divide over the question of whether clerics should be empowered to review legislation for consistency with Islam.
During the constitution-making process, powerful clerical opponents of judicial reforms forced the government to recognize clerical control over legislation by giving veto power to a council of high-ranking Shīʿī clerics (heyʾat-e mojtahedīn). This council of five outstanding mojtahids, as members of Parliament, was established to ensure that the legislation would conform to mavāzīn-e sharʿ (Islamic criteria). However, this type of Islamizing mechanism did not work, and was applied only for a short period from 1909 to 1911. After 1911, secularists marginalized the clergy and began to modernize gradually the legal system along European lines.
During the second constitutional period from 1911 to 1926, and with the assistance of the French legal advisor Adolph Perni, who was based in the new Justice Ministry, the process of drafting modern laws started. Two laws were approved that can be regarded as the foundations of the modern judicial system of Iran. These were the Provisional Code of Judicial Organization (qānūn-e movaqqatī-e tashkīlāt-e ʿadliyeh) and the Provisional Code of Civil Procedure (qānūn-e movaqqatī-e oṣūl-e moḥākamāt-e ḥoqūqī). General and special courts were introduced for the first time in an organized system: general courts included a conflict resolution court, a primary first-instance court, and an appeal court. Special courts included a commercial court, military court, special criminal tribunal, and a disciplinary court of judges. The new institution included the Supreme Court (the Court of Cassation/dīvān-e ʿālī-ye tamīz) as well as the General Public Prosecutor. Sharīʿa courts, including a new set of Appeal Sharīʿa courts, continued to be staffed by a fully qualified religious scholar (mojtahed jāmeʿ al-sharayeṭ). However, these religious courts were placed under the control of the Justice Ministry, which was controlled by non-clerics. The inauguration of the Tehran School of Law as the first modern higher legal education in Iran in 1918 accelerated the process by which the bulk of the legal system was secularized.
The impact of these reforms was felt primarily in a few of Iran’s major cities and appeared at a time of economic hardship and political instability. The First World War devastated the Iranian economy and damaged the state apparatus; many of the ʿadliyeh courts (the “secular” courts in the new system) were suspended or became inactive in the provinces. In 1925, the Qājār dynasty formally ended and was replaced by the secular, autocratic, nationalist, and military rule of the Pahlavī dynasty (1925–1979).
The Pahlavī Period
From 1925 to 1979, Rezā Shāh (1878–1944) and his son Mohammad Rezā Shāh (1919–1980), nostalgic for the pre-Islamic Iranian empire, launched a wave of secular, Westernized legal and judicial reform in Iran.
From 1926 to 1933, the modern state judicial structure (including modern courts, prosecutor’s offices, and a public notary system) supplanted the traditional, tribal, informal, and clergy-based judicial mechanisms. These reforms were led by ʿAlī-Akbar Dāwar (d. 1936), who graduated with a law degree from Switzerland and served as chief prosecutor of Tehran, and Fīrūz Farmānfarmā, a law graduate of the Sorbonne. In February 1926, Dāwar dissolved the corrupt and dysfunctional ʿadliyeh courts. The old mixed ʿorfī /Sharīʿa judiciary hereby was removed and the application of Sharīʿa justice was strongly restricted, particularly in criminal matters. The drastic weakening of the clerical judges in the judiciary led to the total disappearance of the mixed system of Sharīʿa and secular courts. Backed by the Shah and legitimated by their secular modern legal background, these reformers pursued a transformative judicial and legal reform agenda.
In 1926, a modern secular Penal Code (qānūn-e mojāzāt-e ʿomūmī 1304) was enacted. Based on a draft prepared by the French advisor Perni, it presented a real challenge to the Shariʿah-educated judges. In 1927, the Registry of Documents and Properties Act, which established public registry offices under the control of the Ministry of Justice, further reduced the power of the clergy, who previously acted as notaries. In 1928, the Code of Civil Procedure and the new Code of Judicial Organization was adopted. In this same year, a new dress code was enacted for men and women, which marked a symbolic approach to modern western culture. (In 1936, Rezā Shāh also banned the veil in defiance of religious and traditional communities.)
The first book of the Civil Code (qānūn-e madanī) was also enacted in 1928 and was fully completed by the 1935. The Civil Code codified the substance of the Shīʿī Jaʿfarī school of law in the format of the Napoleonic Code, drawing on the substance of thp’pe Napoleonic code as well in several areas. The modern Code of Criminal Procedure (oṣūl-e moḥākamāt-e jazāʿī) and a new commercial code were promulgated in 1932. To give a more secular and nationalist tone to the emerging secular legal culture, a binding Persian vocabulary for the justice system, harking back to Achaemenid times and including words like dādgāh (court), dādras (judge), dādsetān (prosecutor), and dādkhāst (petition) was introduced in 1938.
By the mid-1930s, these new judicial reforms had gradually changed the slow and clergy-dominated judicial system (ʿadliyeh) of the previous century into a centralized and bureaucratic one based on codified state laws. In the process, a new class of judicial personnel schooled in modern legal knowledge replaced clerical staff.
In 1963, the second Pahlavī Shāh organized a series of reforms known as “The White Revolution: The Revolution of the Shah and the People,” the keystone of which was the Law of Land Reform. This law targeted a deep-rooted tradition of Iranian feudalism and deconstructed large landownership. The White Revolution also gave women the right to vote — a development opposed by religious leaders, including Ayatollah Khomeini of that time. The Family Protection Law of 1967 was intended as a major step toward gender justice, restricting Sharīʿa rules regarding the age of marriage, polygamy, and divorce. It also gave more rights to women concerning work and family. To promote the White Revolution agenda, khānehā-ye ensāf (the Houses of Equity), informal mechanisms of conflict resolution were established in rural areas. In 1973, the 1926 penal code was substantially reformed. All references to Sharīʿa criminal laws were removed and an entirely secular criminal law was established. This penal code constituted the main part of the general rules and Taʿzīrāt sections of the penal codes later adopted under the Islamic Republic.
While the Shah carried out his secularization of the legal system, the mainstream of the clerical establishment remained focused on traditional Islamic scholarship. By late 1960s, however, self-consciously Islamic resistance was beginning to appear. Some popular social critics like Jalāl Āl Aḥmad (d. 1969) and ʿAlī Sharīʿatī (d. 1977) accused the social and legal reforms of the Shah of being mechanisms for “Westoxication” (poisoned by the West). This fundamentalist, revolutionary approach to Shīʿīsm was later captured and expanded by Ayatollah Khomeini and his supporters against the Shah in the late 1970s. The Pahlavī secularization, in the language of Ayatollah Khomeini, was designed principally to “undermine Islamic values.”
Islamic Revolutionary Period
After the Iranian Revolution of 1978–1979, Iran underwent a rapid process of “Islamization.” The underlying assumption of the Islamization agenda was that Islam encompasses all aspects of the legal and judicial system much more completely than any worldly system. The goal of the revolutionary Islamizers was thus, in Ayatollah Khomeini’s words, to “establish Islamic justice and create divine government.” The post-revolutionary legal and judicial system has developed rapidly since that time. Focusing on politico-legal strategies, these developments can be categorized into five important phases.
Transitional–Revolutionary 1979–1980
The transition from the former Shah’s system to the new Islamic Republic was marked by a rapid disbandment of the former judicial structure. When Ayatollah Khomeini appointed fundamentalist cleric Ṣādiq Khalkhālī as the chief Sharīʿa judge and head of the Revolutionary Court on 23 February 1979, less than two weeks after the victory of the revolution, a new chapter of what V. S. Naipaul called a “revolution as blood and punishment” began. Khalkhālī was mandated to try so-called “counter-revolutionaries” and former high-ranking officials of the Shah’s regime. He ultimately issued around five hundred death sentences. In this period, many revolutionary clerics entered the judiciary to replace the “pagan” members of previous system. By 14 March 1979, the Supreme Court and General Public Prosecutors’ Office, as well as the Disciplinary Courts for Judges, were disbanded. The Revolutionary Government approved the Reform of the Judiciary and Recruitment of Judges Act, by which a panel consisting of five judges and ten potential substitute members were tasked with judicial cleansing. This Act authorized the panel to dissolve courts and judicial administration institutions, enacting demotions, and transforming and dismissing unsuitable judicial officials. A new Supreme Court with new members opened some months later. Immediately after Khomeini’s statement on August 1979 that all un-Islamic laws and regulations were illegal, the Revolutionary Council suspended the Family Protection Laws of 1967 and 1975. All female judges and prosecutors were dismissed, and a new family court called “the special civil court” was established, causing chaos in family cases. One positive development from this period was the transfer of the Prison Organization from the police (Interior Ministry) to the judiciary.
War-Torn And Fundamentalist 1980–1990
The new Constitution, drafted by a new clergy-dominated council called the Assembly of Experts, was ratified in a referendum that took place on 2 December 1979. The new Constitution offered an unprecedented hybrid of authoritarian, theocratic, and republican elements based on the rule of the supreme Shīʿī jurist (velāyat al-faqīh). The Constitution provided for the maximum Islamization of the legal system: “all civil, penal, financial, economic, administrative, cultural, military, political and other laws and regulations must be based on Islamic criteria,” as stipulated by Article 4. Article 12 of the Constitution established the Shīʿī Jaʿfarī school as the official school of Islamic Law (mazhab) of the Iranian state, and Article 167 further permitted courts to make decisions based on “credible Islamic sources” or fatāwās from leading scholars such as al-Khomeini in the case of an absence of positive law on a matter. This last article has been used frequently by the revolutionary courts to invent new offenses and impose security-oriented procedures.
The judiciary was headed by a mojtahed appointed by the Leader for five years. The role of the Minister of Justice, although still a cabinet position, was limited to coordinating the administrative and financial relationships between the Judiciary and the legislative–executive branches, but without any authority in judicial affairs and the court system. To safeguard clerical control over the political system, the first Council of Guardians (CG) was established in May 1980. In what was actually a powerful restoration of the since-lapsed Article two of the 1906 constitution, this council was placed above the Majles. Article 72 prohibited the Majles from passing any legislation that was at variance with the official school of Islamic law of the country. The authority to determine whether legislation was constitutionally Islamic was vested exclusively in six jurists (fuqahāʾ) whom the Leader appointed to the CG, which was also vested with the authority to offer official interpretations of the provisions of the constitution (by a vote of three-quarters of its members.)
In February 1980, Abol-Ḥasan Banīṣadr, a liberal religious intellectual and critic of clergy rule, was elected the first president of Iran. During 1980–1981, the president and his allies clashed ferociously with clerical leaders over different aspects of the rule of law, over the Islamization project, and over the arbitrary rule of revolutionary institutions such as revolutionary courts, Islamic revolution committees, and the Revolutionary Guard. One dispute centered on the clerical policy of imposing Islām-i faqāhatī (fiqh-based Islam), which fundamentally disrespected international human rights including minorities and women’s rights. In early 1980, clerics imposed a mandatory veil (ḥejāb) on women.
In the wake of Saddam Hussein’s 1980 attack on Iran and the outbreak of the Iran–Iraq War, in June 1981 Ayatollah Khomeini dismissed the president and began a violent crackdown on oppositional groups. The revolutionary Islamic courts and their respective prosecution offices played a major role in this process. The main legal tool for political repression was the definition of a new category of offenses categorized as “rebelling against the Islamic Regime and causing corruption on earth (mohāribeh va ifsād fī al-arḍ).” Working from a novel theory developed by Ayatollah Montaẓerī (d. 2009), those who committed such offenses were characterized as enemies of the Islamic state and deserving of capital punishment.
By the beginning of 1982, Ayatollah Khomeini again publicly declared that all laws and regulations that were at variance with Islamic criteria were null and void. The High Council of the Judiciary immediately issued a directive to the courts to refrain from using laws that were at odds with Islamic criteria. The Council advised that when judges could find no suitably “Islamic” legislation to govern a case, they should pass judgments based on authoritative Islamic sources and valid fatāwās. This council, although abolished by a constitutional amendment of 1989, played a substantial role in the first decade of the Islamization process.
In 1982 and 1983, the High Council of Judiciary introduced three bills that abolished major parts of the pre-revolutionary penal codes of 1925, amended in 1973. It introduced the Bill of Ḥodūd and Qeṣāṣ, a law drawn largely from Ayatollah Khomeini’s major jurisprudential work in Shīʿī fiqh, Taḥrīr al-wasīlah, written in Arabic in 1964. Later, the Bill of Diyāt and the Taʿzīrāt (discretionary punishment below the ḥadd level) Bill were enacted. Most Taʿzīrāt offenses were copied from the Shah’s penal code, and punishments traditionally used in premodern Iran, such as hanging and flogging, became common sanctions in the sentencing system. Furthermore, provisions of the Taʿzīrāt Bill allowed revolutionary prosecutors to justify torture as an Islamic discretionary punishment.
In July and August 1988 Khomeini further developed his theory of governance. During these months, based on a decree from Ayatollah Khomeini, Iranian prisons witnessed the mass execution of political prisoners, most of whom were affiliated with the Mojāhedīn-e Khalq (People’s Warriors). Khomeini’s fatāwā against Salman Rushdie in February 1989, sentencing the author of The Satanic Verses to death because he had insulted sanctities and the integrity of the Prophet Muḥammad, introduced the global implications of the Islamization project to the world.
Preparing for the second decade of the Islamic Republic, Ayatollah Khomeini spoke pragmatically about the flexibilities of the Sharīʿa for modern times. To protect the interests of the neẓām-e islāmī (Islamic system) Ayatollah Khomeini insisted, a dynamic fiqh was needed, which took into account the exigencies of time and locality in lawmaking. By this formulation, he asserted the absolute authority of the Supreme Leader (valī-e moṭlaq-e faqīh) to be able to suspend classical rulings of the Sharīʿa. According to Khomeini in 1989, to protect the Islamic system, even Islamic rituals such as prayer, fasting, and hajj can be temporarily suspended.
To institutionalize his new theory, before his death in June 1989 Ayatollah Khomeini established an ad hoc “Expediency Council” (EC). In that same year, he ordered the Assembly of Experts to modify the 1979 constitution, which had referred to the leadership position as “the rule of the supreme Shīʿī jurisprudent,” which was perceived as a position conditioned and circumscribed by Sharīʿa constraints. After the 1989 amendment, the Constitution instead referred to “the absolute rule of the supreme Shīʿī jurisprudent.” This was understood to signify that the supreme Shīʿī jurisprudent had the power to go beyond the body of the traditional Sharīʿa. This change marked a distinctly modern, highly untraditional, utilitarian approach (aḥkām-e maṣlaḥatī) to Shīʿī jurisprudence.
In an attempt to realize the spirit of Khomeini’s last decree, the Assembly of Experts made several amendments to the Constitution, including some that formally established and constitutionalized the EC (Articles 110, 111, and 112), others that abolished the High Council of the Judiciary, and others that expanded the rule of the Supreme Leader and increased presidential powers. Under the amended constitution, the EC was tasked with resolving conflicts between the Majles and the Council of Guardians regarding the compatibility of legislation with Islamic criteria. In some cases, the EC has also passed new legislation.
Pragmatic-Islamic 1990–1997
In 1988, the Iran–Iraq war ended. In 1989, the year that significant constitutional reforms changed the structure of government, Akbar Hashemi Rafsanjani became President of Iran. Under Rafsanjani, an authoritarian and pragmatic Islamization process developed. Economic reconstruction programs led to widespread corruption. To control growing economic imbalances, the legislative bodies introduced a harsh sentencing system for economic offenses. A new sentencing system was established under the executive power, the Organization for Governmental Taʿzīrāt, and the public prosecutor’s office was abolished in 1994. The stated goal of this policy was to introduce the older institution of qāḍī justice, in which people have direct access to a single judge who is competent for all types of cases.
During this period, Iran signed a number of international conventions. In 1994, for the first time since the revolution, the Islamic Republic ratified a significant international human rights document: the 1990 Convention on the Rights of the Child. It was, however, ratified with reservations over potential clashes with Islamic rulings. In 1996 the Islamic penal laws of 1982–1983 were revised and a single code was promulgated entitled “The Islamic Criminal Code.”
Reformative-Islamic 1997–2005
In 1997, Rafsanjani was succeeded as President by the reformist president Mohammad Khatami, who served until 2005. During the Khatami period, reformists not only dominated the presidency, but they were also powerful in the Majles. Fundamentalists in the office of the Supreme Leader, in the CG, and in the judiciary used various legal and judicial tools to stymie the progressive policies of the new President and his allies.
Conflict between reformists and conservatives erupted over plans to reform the judiciary. The disclosure of systematic killing of political and intellectual dissidents by radical forces in the state intelligence services created furious debate over the rule of law and human rights during this time. In 1999, a reform-minded cleric, Ayatollah Shahrūdī, was named Head of the Judiciary. In an unprecedented move, Shahrūdī called the judiciary a “ruined house” and began reorganizing the court system. He began by reintroducing the prosecutor’s office in 2003. Thereafter, he established a “Centre for Judicial Reform Studies” in Tehran and announced an ambitious legal and judicial reform agenda. The Bar Association took advantage of the reformist moment and organized a new election in 2003 that resulted in gaining a level of independence unknown since the revolution.
The Khatami period also saw conflict between reformists and fundamentalist over the Convention on the Elimination of All Forms of Discrimination against Women. Although reformists pushed for Iran to sign and ratify the Convention, they were blocked by fundamentalist jurists in the CG (supported by the ḥawzah (Islamic seminary) system, and its leading mojtaheds).
In these years, the workload of the EC increased. As a result of impasses between reformist Majles and the conservative CG, many rejected legislation proposals were sent out to the EC. Interestingly, the EC approved some legal reforms that the CG had opposed, including the equalization of blood money (diyah) for non-Muslims, permitting women to become judges, increasing the marriage age of girls from nine to at least thirteen, and accepting the principle of territorial jurisdiction of Islamic laws applied in Iran.
In the paralyzed political environment, the Supreme Leader also used governmental decrees (ahkām hokūmatī) to bypass normal lawmaking. This form of direct lawmaking by the Leader had some precedent. For example, a special court for the clergy had been established in 1987 by a decree of Ayatollah Khomeini. During the Khatami era, the conservative Leader used these powers to prevent reformist legislation and to enact legislation of his own. Thus, in 1998 the Supreme Leader used this mechanism to prevent a reform of the press law that had been proposed by the reformist Majles.
Apocalyptic – Military And Revolutionary
In August 2005, Mohammad Khatami was succeeded as President by Mahmoud Ahmadinejad, who presided over a political regime that became ever more militarized and security oriented. This development was facilitated by a conservative-dominated judiciary that called for the reimposition of radical Islamization policies such as those that had been imposed during the early 1980s. Criminal justice, as the kernel of the post-revolutionary Islamization project, has been excessively politicized in this period. The period has witnessed an increasing number of executions, hangings in public and in prisons, a new trend in the enforcement of a harsh sentencing system against political opposition, and rampant corruption cases. It has also seen further control of Islamic dress and criminalization of IT technologies like Internet and satellite TV.
As a practical matter, political and legal conflict in the Ahmadinejad years has divided the justice system into three conflicting apparatuses: first, an ordinary judiciary for normal cases led by the head of the judiciary; second, a revolutionary and hidden judiciary led by revolutionary judges and prosecutors affiliated with the Revolutionary Guard and intelligence services; third, a hidden strategic judiciary led by the office of the Supreme Leader applying the judicial mandate of the Muslim Ruler (velāyat-e qaḍāʾī).
Assessment And Future Perspectives
Iran entered the early modern period as the only major Islamic Empire whose legal system applied Shīʿī rather than Sunnī law. In the twentieth century, this Iran underwent two revolutions. The first revolution unsuccessfully tried to create effective constitutional checks on the arbitrary rule of the Shah. The second revolution deposed the Shah and established a new type of governmental system dominated by Shīʿī clerics. Ever since, Iranians have struggled to create effective constitutional checks on the power of the ruling clerics. During this period, traditional and modern Sharīʿa understandings have regularly been introduced, changed, amended, and replaced through state legislation. In practice, different models of Islamization have been pursued. Whether Iranians are able to develop a modern, progressive, and human dignity–based legal system in harmony with Islam remains to be seen.
The History Of Law And Justice In Iran
907 – 006
Last Updated: 05/2022
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