IV. Conclusion

Such then was the story of law and judiciary reform in Iran. As an important part of the country's tedious efforts at modernization, it best epitomizes the agonizing gaps, paradoxes and discontinuities which have characterized the process from its very beginning.

It began in the early 19th century. After repeated humiliating defeats from the Russian army, the country, shocked by a sudden realization of the superiority of Western technology, began looking to the West for modernization. But as contact with the West began and expanded, a profound and sweeping sense of inferiority which shook the very foundation of the society gradually set in, and modernity came to be conceived of as contrary to and incompatible with all aspects of traditional ways of life, ranging from religious values and rituals to wearing traditional clothes and even to reading and studying classical Persian literature and poetry. An influential scholar and leader of the constitutional revolution, S. H. Taqizadeh, advocated in a now-famous article that “the only cure for Iran was to become Westernized internally, externally, psychically and spiritually”¹³⁹; this was a clear expression of the same current which was, for the builders of the new Iran, a directive of deed and action, and for the hypnotized uncommitted masses, a perplexing and paralyzing mental dissonance. In such a psycho-political climate, the reform movement began. But among the various fields of reform such as the military, technology, bureaucracy and even education and the political system, the judiciary occupied a unique position. For whereas on the cultural level it was the most shocking point of contrast with the West, its reform also presented the greatest difficulty. It meant not simply “filling a vacuum” but, rather, “supplementation” or “replacement” of a highly rigid, comprehensive and well-established system which had hitherto been regarded as “sacred,” “immutable’¹ and “infallible.” Furthermore, it constituted intrusion into the exclusive domain of the ulama, who symbolized the society's most revered values and wielded tremendous powers.

Attempts at judiciary reform began in the first part of the nineteenth century, but no significant results were achieved until after the constitutional revolution and the establishment of the first legislative assembly, the Majlis, in 1906. From that time to the abrupt closing of its 24th session during the revolution of 1978, the Majlis – notwithstanding the many fluctuations it underwent due to the political vicissitudes of the country – produced a massive body of modern Westernized laws which constituted the backbone of the legal as well as the social and political structures of modern Iran.

From the point of view of legislative history the process of legal reform in Iran was very similar, at least in one important respect, to the promulgation of the Sharia in its formative years: both constitute attempts at “reception” or, put more precisely, at the adaptation of a psycho-politically overwhelming foreign system to native conditions of a different society. But here the similarity ends. For whereas in the case of the Sharia the pre-Islamic practices and customs were cast into the Islamic moulds with so astonishing a perfection, the adoption of the Western models in Iran, as in other Islamic societies, never achieved psychologically and functionally any comparable degree of integration. True, the nature and context of the two “receptions” were totally different. But this fact itself is sociologically problematic rather than given, and it touches the very core of the immense problems and difficulties on the way of modernization of traditional societies.¹⁴⁰

But the modernizing elites of Iran were neither aware of these difficulties and of the complexity of their task, nor were they, in any event, able to meet them properly. In most cases the modernization efforts, sincere and well-meaning as they might have been, boiled down to inarticulate attempts to copy and explant, even by force, alien models and systems in a culturally hostile soil.

At the risk of sounding technical, these problems, in most cases, can be described as structural disequilibrium, or simply, anomie, in the Mertonian sense of the term (Merton 1957: 131 ff.), and the modern judiciary in Iran is a clear case in point. Put in a theoretical term, the new judiciary was a normative subsystem;¹⁴¹ taken almost without modification from the West, it created great incongruities and strains which, along with other factors, led to the total collapse of the political system in the 1978 revolution.

At the highest level, the value component of society, the new judiciary was the source of deep conflicts. It was based, for instance, on the assumptions of legal capacity, individual rights, judicial rationalism, popular sovereignty, populism, and a host of similar Western inspired premises; yet as expressed in the very text of its new constitution, in the behaviour and character of almost 98% of its people and in the make-up of its social and cultural institutions, the society was deeply committed to a set of religiotraditional values which were almost totally alien to and incompatible with those assumptions.

At the normative level there was what could be termed as structural discontinuity which had two distinct aspects. The first was lack of what Harold Lasswell has called “redressing.” As we recall, practically every act of the judiciary reform, from the second Majlis to the 24th, was enacted as “experimental” law, and except for one or two cases in the whole period, none was ever brought before the entire body of the Majlis for scrutiny and due processing. Carried out with such a procedure and in a climate of intense anti-clerical sentiments, especially in the Pahlavi period, the new system as a whole was, and ironically was meant to be, a break with rather than a continuation of the past.

Yet this structural discontinuity had a second aspect which could be called lack of institutionalization. One of the distinct features of the political system in Iran, as perhaps in most of the so-called underdeveloped world, is primary “person-centredness.” In such a society, the “system” as such never gains any degree of primacy as focus of attention and loyalty, and consequently, with the change of incumbents in key positions, everything under that sphere of authority changes; no innovation takes root and the society remains in a constant process of “starting from scratch.” In the modern history of Iran nothing illustrates this characteristic better than its judiciary. From the time of Amir Kabir to the fall of the Shah, as we recall, time and again the Ministry of Justice was dissolved, programmes and codes which were so painstakingly prepared by one man or group were thrown away by the next, and no step taken was sure to last to the next day.

Finally, at the lowest, the operative level of the society, the incongruities of the new judiciary were not less significant. They not only resulted directly from the nature of the system as such, but were also enhanced by the strains at the higher, normative and valuative structural levels which were discussed. As such, they epitomized, most vividly and concretely, the problems and failures of the whole system, and it was at this level that the abovementioned polemics of Ahmad Kasravi and Ayatollah Khomeini were directed. Stated very briefly, these problems included, for example, (a) the failure of the new system to properly co-opt the members of the old system, the ulama, hence alienating a most important power group in society; (b) rampant growth into a bureaucratic labyrinth with increasing inability to keep up with the realities and functional necessities of an ever alienating society – a point repeatedly brought up by the critics and the public at large; and finally (c) failure to preserve a minimum degree of judiciary independence to uphold justice as well as susceptibility to such corrupting tendencies as bribery, nepotism and favouritism, which have perhaps been among the rules of the game in the Persian judiciary throughout the country's history.

Such then was the story of law and modern judiciary in Iran. Assuming, as I do, that the same story is true as well of the other elements in the package of modernization, we get a deep and clear insight into the events which have been unfolding in Iran after the 1978 revolution. For no matter how one might wish to look at it, this bloody aftermath, which is of much greater sociological significance than the revolution itself, seems to make one point clear: notwithstanding the tedious efforts of the past 150 years, however sincere and well-meaning, the things introduced into the country in the package of modernity, never penetrated, in the attitudinal and cultural sense of the term, beneath the surface of society, and the revolution of 1978 was only a gate-opening for the rejection and throwing-out of all foreign elements which had been explanted into the society without gaining any root.