Notes

1 For the discussion of the term in the sense used here, see Rheinstein, 1956: 31–40.

2 These consist of daily prayers, religious taxes, fasting, pilgrimage to the Makkah and the holy war.

3 For example, of the 451-page Resalah (Khomeini, 1963) prepared as a daily manual for his followers (moqallids), 70% (pp. 112–322) is devoted to Ibadat, 20% (pp. 323–412) to Moamalat in the general sense we have used here, and the remaining 10% to such miscellaneous subjects as the conditions of taqlid (the preferential adoption and following of the views and action of a religious authority called mojtahid) (pp. 1–5), hunting, edible animals, religious pledge (nazr), etc. (pp. 413–451).

4 Of the voluminous literature on this subject, see Schacht, 1955a: 34^38; Cahen, 1975: 307; Coulson, 1964: 21–35.

5 The oldest of these schools was the Hanafi school. It was founded in Kufah, Iraq, hitherto a domain of the Sassanid empire, by a man of Persian descent, Abu Hanifa (699–767). He is known as the leader of Ahl or-Raay (advocates of rational reasoning) in the Islamic jurisprudence. The counterpart of this school was the Maliki School. Founded in Madinah and by a native of the city, Malik ibn Anas (711–795), it represented an opposite, conservative approach to jurisprudence, and championed the cause of Ahlol Hadith (Traditionalists). For a thorough discussion of those early schools, see Schacht, 1959: 6–10, 21–35; Coulson, 1964: 36–55.

6 Schacht, 1955a: 54. Shafei's theory is best discussed in his Risalah (1961); for a summary of his theory, see Coulson, 1964: 53–56; Schacht, 1959: 11–20 and passim; Schacht, 1964: 45^8.

7 These included the Hanbali and Zaheri Schools, founded respectively by Ahmed ibn Hanbal (780–855) and Dawud ibn Khalaf (815–883). While both objected to the use of human reasoning in law, the latter went so far as “to rely exclusively on the literal (zaheri) meaning of the Koran and Tradition,” rejecting not only “the free exercise of personal opinion which had been customary before Shafii, but even the use of analogical and systematic reasoning which Shafei had retained.” (Schacht, 1964: 63).

8 As the eighth century was the Golden Age of the development of the Sharia, the ninth century was the century of the Traditions.

9 These were the Syrian school of Al-Awzai (707–77’4), its rival Iraqi school of Sofyan ath-Thowri (715–778), the school which was founded by the Quran commentator at-Tabari (839–923) and also the Zaheri school mentioned in Note 7 above.

10 That Imam Jaafar as-Sadiq was a man of profound erudition and a fully qualified mojtahid has been attested to by practically all of the Sunni writers, and even such a man as Abu Hanifa is said to have studied under him. Similarly, many of the Shii imams are among the “chains of transmitters” of Hadith for the Sunni Traditionalists. What is in dispute, however, is whether these holy men, pious and reclusive as most of them were, especially in the early centuries of Islam, published any work, and if they did, whether any part of it has survived. The painstaking efforts of the Shii scholars, especially after the Safavid period, in this regard have not been taken as conclusive by the Sunni writers and by the Western scholars as well. Cf. e.g. Schacht, 1959: 262–268; on the development of the Shii Fiqh, see also Coulson, 1964: 103–119; Fyzee, 1955: 113–131; 1964: passim.

11 This is seen for example in the law of inheritance, in the ritual of ablution, in the meaning of the term “ olol-amr” (rulers) to whom obedience is ordered by the Quran, and in many other verses in the Quran which concern the disputed issues, or which the Shiis quote to prove their views.

12 Schacht, 1959: 262; Vesey-Fitzgerald, 1955: 109–110. In these formative years, the Shii Fiqh owes much of its success to three most eminent divines: Mohammad ibn Yaaqub al-Koleyni (d. 941); Ibn Babaweyh, Mohammad ibn Ali known as Shikh-e Saduq (932–992); and Mohammad ibn Hasan Tusi, Shikh ot-Tariqah (995–1067).

13 Notwithstanding the long and controversial debate over the influence of the Roman law on the Sharia, there is increasing evidence that the Persian influence on the early Islamic development went far beyond purely administrative matters. It is a well-known fact, for instance, that by order of the second caliph, Omar, a great many Sassanian fiscal and administrative laws, were retained; and furthermore, as we see in the celebrated work of Arthur Christensen, there are interesting similarities between the Islamic and the Zoroastrian jurisprudence of the Sassanid period. Particulary interesting are such common elements as the concept of consensus, the nature and type of law and crime (that which is against God and that which is against people) and others. Cf. Christensen, 1944: 299–313, esp. 303, 305. Ever since William Jones raised the question of the influence of Roman law on the Sharia in his book (1781), the issue has been debated, and today a voluminous literature exists on the matter. In general, it is reckoned that the influence on the Sharia in its formative periods has much more from the Persian than from the Roman law. Cf., e.g., Schacht, 1950: 9–17; 1956; Vesey-Fitzgerald, 1951: 81–102; Hamidullah, 1973; Mazaheri, 1961.

14 On the role of the ulama in Iran in recent times, see, eg., Algar, 1969; Fischer, 1980.

15 Schacht, 1955b. Even the family which has been regarded as one of the most exclusive domains of the Sharia is shown by recent researchers to be dominated by customary law in many parts of the Moslem world. Cf. Anderson, 1976; 10–13; Abu-Zohra, 1955: 132–178; Coulson, 1964: 135–138.

16 The most debated here are the Islamic penal and criminal laws which are basically, to use the famous Durkheimean classification, “repressive,” implying a sort of “innate” criminality.

17 “Ye who believe! Be ye staunch in justice, witnesses for Allah, even though it be against yourselves or (your) parents or (your) kindred, whether (the case be of) a rich man or a poor man, for Allah is nearer unto both (than ye are). So follow not passion lest ye lapse (from truth) and if ye lapse or fall away, then lo! Allah is ever informed of what ye do. (The Quran IV: 135, Italics mine; see also IV: 58, V: 8, XI: 85, XVI: 90) To the same effect, there are also great many Hadiths from the Prophet Mohammad. In one case, for example, he is quoted by al-Bokhari to have said: “The people before you were only lost because they used to apply the law on the weak and poor and leave the strong and the ricrT (quoted in Boisard, 1980: 441).

18 In the letter, Omar writes to the governor: “Understand the depositions that are made before you and decide on the basis of proof.... Treat all litigants equally in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.... Beware of [showing] annoyance, impatience and vexation on account of parties in assemblies of justice for which God rewards and beautifies what is yet to come [hereafter].” For the full text of the letter and of the voluminous literature on it, see Ibn Khaldun, 1958, I: 453–454; Hamidullah, 1971: 1–50; Margoliouth, 1910: 307–326; Tyan, 1938,1: 106–113.

19 Drawing attention to the historical significance of these developments, Marcel A. Boisard has observed (1980: 440): “Until the Crusades, legal procedure in the West consisted of �God's judgements’ by boiling water or by duel or by �ordeal’ during which people were burned with red-hot irons or boiling oil, and, if they survived, declared �not guilty.’ In contrast, we have only to quote the instructions given by Omar in the seventh century to the Moslem judges to show what a chasm separated the two conceptions: “Only decide on the basis of proof, be kind to the weak...”

20 For a brief analysis of this aspect of the Islamic legal system, see Nawaii, 1974: esp.

21 As reported by Ibn Khaldun (1958,1: 453), Omar “appointed Abud-Darda to be judge with him in Madinah, he appointed Shurayh as judge in al-Basrah and Abu Musa al-Ashari as judge in al-Kufah. On appointing (Abu Musa), he wrote him the famous letter...” We do know, however, that even during the lifetime of the Prophet at least 130 of the Companions acted occasionally as judges and of these, seven – Omar, Ali, Abdollah ibn Masud, Ayesha, Zeyd ibn Thabit, Abdollah ibn Abbas and Abdollah ibn Omar – were the most famous. These, however, were not formally appointed to the job and were referred to, with the consent of the Prophet, simply because of their recognized command over the Islamic principles. Cf. Coulson, 1964: 23–26; Nawaii, 1974: 211–212.

22 The title of Qadil-Qodat (literally Judge of the Judges) has, especially in some contemporary writings, been sometimes confused by another similar concept, aqdal-qodat (the most judicious judge). That the former position was higher and entailed a wider responsibility can be seen in such classical writings as, eg., Nakhjavani, 1934; 329. Cf. Baghdadi, 1936: 46–59; Beyhaghi, 1945: 173, 198, 210; Schacht, 1955b: 58–59; Tyan, 1938, I: 176 ff.

23 On the appointment of local judges in Iran, see Zarrinkub, 1975, :81.

24 Very briefly, these functions, as they existed in the post-Safavid Iran, were the offices of (1) the mojtahid, the highest religious authority, called ayatollah in present day Iran; (2) the mo///, who, especially in the Sunni world, issued fatva (legal opinion) on the basis of the code of the school to which he belonged; (3) the sadr ossodur, the Pontifex Maximus of the Safavid court, corresponding to the Abbasid chief qadi and to the Ottoman Grand Mofti; (4) the sheykhol Islam, a top religious official appointed by the ruler sometimes equal to the grand mofti. Besides, there were great many other functionaries of lower rank but nonetheless very important, such as the leaders of weekend prayers (imam jomeh), the preachers (voaaz) and others. Cf. Malcolm, 1815,1: 438 ff.; Sami, 1943: 120 ff; Saleh, 1969: 214–222.

25 On the mazalim courts, see Amedroz, 1911: 635–674; Mawardi, 1966: 77 ff.; Abu-Yaala, 1938: 60 ff. On this practice in the Sassanid courts, see also Christensen, 1944: 299–303.

26 Lambton, 1968: 227 (reference is made by the author to Amedroz, 1911: 655).

27 These names include, for example, divan-e aala (supreme court), divan khaneh (house of judiciary), mahkameh (tribunal), adalat khaneh (house of justice), etc.; and the specific functions which developed in these courts included vakilol-jaraim (criminal prosecutor) later called divan begi, vakil or-reaya (public prosecutor or the attorney of the subjects), shahneh (chief of the police), kalantar (magistrate), darugheh (sheriff), and many others. Cf. Malcolm, 1815, I: 437; Anvari, 1976.

28 Istihsan and istislah were two very similar mechanisms used in the Hanafi and Maliki schools, respectively, in settling a rule of Fiqh in conformity with the requirements of every day life, equity, social conditions and general public interest even though such a rule runs counter to the implications of a qiyas. Cf. Schacht, 1964: 152, 155, 157.

29 For instance, to evade the Sharia ban on “interest” (riba), the creditor, instead of lending the capital with an interest, would buy something from the debtor for the exact amount of the capital payable in cash, and then resell it to him for a price amounting to the capital plus the interest, payable in a future date. In the colloquial Persian today, this is referred to as “ kolah-e sharii” which means, literally, a “Sharia hat.” Cf. Schacht, 1955b: 78; 1964: 78–82; Coulson, 1964: 139–141.

30 Literally, yasa means “decree.” Here, it refers to a code which is said to have originally been compiled in 1205 when Genghiz Khan invaded China. In 1219 after Genghiz Khan's forces invaded Iran the yasa went into effect and subsequently replaced the Quran by the decree of Genghiz Khan. It remained in force in Iran for about three centuries. Cf. Dareste, 1926: 265; Iqbal, 1933, I: 78.

31 In 1295, Ghazan Khan, a grandson of Genghiz, came to power. He embraced Islam, declared independence from the Mongul emperor and issued a host of yerlighs (decrees) which dealt with a variety of issues from procedural law to the rights of peasants. In these decrees there is a notable return to the Sharia, although in several points reference is also made to the Yasa. The Tozuks of Tamerlane are discussed in Tamerlane, 1963, although the authenticity of the book has been doubted. Cf. Browne, 1951, III: 183–184. On these and other codes, see Saleh, 1969: 173–208.

32 Riesman, 1952. Although Riesman's trichotomy – inner-directed, other-directed and traditional-directed – was coined to characterize individuals, I find it useful in characterization of societies at different stages of their development or in comparison to other societies.

33 From a stanza of Abu Talib Kalim Kashani (d. 1650) who apparently, due to religious persecution of the Safavid regime, emigrated to India and became the Malik osh-Shoara (Master Poet) of the Shah Jihan's court. The verse in question reads: “ Kalim az hind delgiri nadarad. Pas az olfat qafas ham ashiyan ast.” It means: “Kalim has no grief in India. After getting used to, a cage is a nest.” Cf. Kashani, 1957: 131.

34 From the speech of Matin-Daftari, as quoted in Saleh, 1969: 234-235. On the history and abuses of capitulary privileges in Iran, see Matin-Daftari 1930; on the history and effects of capitulation in the Islamic world and its bearings for legal reform, see Liebesny, 1955: 309–333.

35 Thus in April 1846, the governments of Russia and England asked the government of Iran to take strict measures to abolish what Lord Curzon (1892, I: 456) called: “savage punishments and abominable tortures.” Following this, Haji Mirza Aqasi, the old and ineffective prime minister of Mohammad Shah, issued an order to the governers and other officials to that effect, but of course nothing changed. In the early days of Amir Kabir's premiership, the same two governments repeated the demand (17 January 1850) which, as we know today, was among the first priorities of Amir Kabir's reform program. Cf. Adamiyat, 1975: 312–313.

36 Thus, in a diplomatic report to Mirza Said Khan, the foreign minister, dated 18 December 1882, the Iranian ambassador to Turkey, Mirza Mohsin Khan Moinol Mamalik (later Moshir od-Dowleh), one of the leading advocates of legal reform, quotes the British ambassador as having said: “If I had a cat, I would not send it to your courts, let alone a British subject or merchant.” When ten years later, in January 1892, the same Moshir od-Dowleh became the Minister of Justice, he wrote a disturbing report to the Shah and called his attention to the disgraceful fact that in the disputes between Iranian and foreign subjects the officials of the Foreign Ministry of Iran “on sheer expectation of reward or for fear of losing their positions, deliberately violate the rights of their fellow citizens in favour of the other party... [and in these] litigations... the judge, in reality, is the representative of the [foreign] embassy [and] not the head of the court.” (Quoted in Adamiyat, 1976: 15n, 17)

37 On the voluminous literature on these developments in Ottoman Turkey, Egypt and other Islamic countries, see Anderson, 1950–51; 1954: 29–40; 1976; 1957: 13–40; Liebesny, 1975: 46 ff.; 1967: 16–34; Onar, 1955: 292–308.

38 He reports with utmost interest that “...no Englishman, unless guilty of a breach of the laws, can be seized or punished at the caprice or from the gust of passion of magistrates: he may sometimes be confined on suspicion, but his life can not be affected, except on positive proof” (1810, I: 262–263). For his detailed account of government and judiciary system in England, see ibid. Chap. 15 and II; Chaps. 17, 20, passim. See also 1973: 231–233, 239 ff., 263 and esp. 278–279.

39 Outraged about the country's system of justice administration he wrote deploringly: “... there is no single textbook of law; neither crime has a definite punishment nor righteousness a discernible reward; neither the Sharia courts have a registry nor the secular tribunals any recording. In short, there is no law, no organization, nor specific authority in this system, and, instead, it is the caprice that reigns supreme.” (quoted in Adamiyat, 1970: 139). On his thought, see also Hairi 1977: 243 ff.

40 This work constitutes pp. 1–52 of Malkom's collected works (1948). On the life and work of Malkom, see Algar, 1973; Nuraei, 1973.

41 These general headings, 24 in all, are numbered from 1 to 74 with many missing in between. Apparently the author had intended the booklet to be a first draft which was to be completed later.

42 For example in 1896, he wrote a long letter to the Shah and told him that “the deficiencies and the conditions of our system of justice are the greatest source of scorn in the eyes of Europeans.... More than anything else, these conditions of justice must be attended to; for the development of the nation, the power of the government and independence of monarchy [all] depend on a single base: the administration of justice” (quoted in Safaei, 1970: 126).

43 A great many of these writings are collected and examined in Adamiyat and Natiq, 1977.

44 It began in the early days of the Fathali Shah (1797–1834) and was followed in 1810–20s by more serious efforts by the able crown prince, Abbas Mirza, in the areas of military, public health, etc. On these, see e.g., Mostowfi, 1945, I: 37–39; Algar, 1969: 75–79; Najmi, 1957.

45 On his life and service, see Adamiyat, 1975; Iqbal, 1962.

46 For instance, traditionally, the Sharia courts gave very favourable treatment to the new converts especially on the matter of inheritance and civil disputes, and this had been a problem for the minorities (Jews, Christians and Zoroastrians) whose opportunistic members often used this device as a means of violating the rights of others. Amir Kabir not only took these matters out of the Sharia courts, but also, to prevent possible local influences, ordered them to be dealt with exclusively at the Tehran Grand Tribunal. He also ordered to be brought before the regular secular courts all disputes between Iranian and foreign subjects which were traditionally “settled” in the Ministry of Foreign Affairs. (Adamiyat, 1975: 309–311. See also p. 20 above.)

47 A molla (a low-ranking member of the ulama) who had accepted bribes and who had given false testimony was severely punished as he was publicly stripped of his religious attiife and his head disgracefully shaved. Similarly after Amir Kabir received a message from a prominent Sharia judge, Shaykh Abd or-Rahim Brujerdi, that on a pending dispute the judge was willing to comply with the wishes of the prime minister, Amir Kabir was extremely angered and immediately replaced him with Shaykh Abdol Hoseyn Tehrani. known as Shaykhol Araqayn. (Adamiyat, 1975: 308. See also Algar, 1969: 129-136.)

48 This took place on 30 August 1858. The Shah not only dismissed the prime minister and his aides but angrily dissolved the post of premier. For the quotations from the decree, see Adamiyat, 1972; 54.

49 The constitution and the procedural rules are reprinted and discussed respectively in Adamiyat, 1972: 57–63; Adamiyat & Natiq, 1977: 189–220 (the text of the rules appears on pp. 191–195).

50 It even initiated a regular bulletin, Ruznameh, on its activities, and there appeared several long and independent reports on its shortcomings and improvement. Cf. Adamiyat & Natiq, 1977: 200–206.

51 For the text of the decree, see Damaghani, 1966: 56–57.

52 Nothing can illustrate this phenomenon more clearly than the argument over the use of official stationery which took place in the assembly: “In the foreign [European] countries, legal documents are automatically considered binding if they are presented on official stationeries... and whoever presents a claim on such official papers need no further legal action [to substantiate his case]. In this Sublime Islamic Government, however, since all disputes are settled in the presence of the ulama and by the means of oral testimonies and proofs... it is immaterial whether the claim is presented on a governmental [official] paper or not... [thus] if [we] require the ulama to write their legal decisions on official papers, it is probable that they would create problems.” Cf. Ruznameh-ye Maslahat Khaneh, Shavval 20, 1276 (Lunar) (13 May, 1860) quoted in Adamiyat & Natiq, 1977: 201.

53 Malkom Khan, 1948: 51. For the suggestions of Malkom Khan, see pp. 99-100 above.

54 For the text of the decree, see Farhad-Moatamad, 1947: 39-43. See also Mostowfi, 1945, I: 136; Bastani-Parizi, 1968: 512.

55 He was Haj AH Khan Maraghe-ie Eatemad os-Saltaneh, an aide to the notorious prime minister, Mirza Aqa Khan Nuri, with whom he had been angrily dismissed by the Shah in August, 1858 (cf. Note 48 above and Adamiyat, 1972: 54, 81–82).

56 From the new manual (dasturol amal) issued by the new minister in December, 1862. Cf. ibid.: 81, n82.

57 On the life of this remarkable man, see Farhad-Moatamad, 1947

58 Like Malkom Khan with whom we have already dealt, Mirza Yusof Khan was also a staunch advocate of judiciary reform in Iran. He had served in diplomatic posts in Russia and France and was thoroughly familiar with developments in Europe. In 1870 he wrote a commentary on the French constitution whose very title, Yek Kalimah (“One Word”) is meant to refer to the term “law” as a one-worded prescription for the ills of Iran. On his life and ideas, cf. Hairi, 1977: 30–36; Adamiyat, 1961: 182–198.

59 Cf. Sani od-Dowleh, 1876–78, III: 133.

60 The text of the first decree appears in English translation in two diplomatic dispatches from Tehran to the British Foreign Office: No. 27, 20 March 1871 and No. 45, 18 April 1871. See (British) Foreign Office Archives (FO) 60/333–334. On the text of the second decree, see Farhad-Moatamad, 1947: 43^44; also Bakhash, 1978: 415; Adamiyat, 1972: 174–187.

61 For an analysis of the letters of complaint written to this tribunal from 1882 to 1883, see Adamiyat & Natiq, 1977: 375–413.

62 Amin od-Dowleh's letter to Malkom Khan (1882), quoted in Adamiyat, 1976: 13. See also Molk Ara's account of the failure (1982: 176).

63 On the conflict between the government and the Majlis on the Constitution, see Adamiyat, 1976: 385–409.

64 There is a visible influence on the Fundamental Law from the writings of the nineteenth century especially the proposals of Mirza Malkom Khan as discussed pp. 99–100 above.

65 On the date and immediate events leading to the establishment of this cabinet, see Kasravi 1940: 163–173; the dispatch No. 205, 1 August, 1906 of the British Embassy in Tehran to the Foreign Office as translated in Hasan Moasir, 1968: 76–77.

66 The committee was established in November 1906 and included Mirza Hoseyn Khan Moatamanol Molk Pirniya, who is said to have written the chart of the Ministry of Justice, and whose brother Mirza Hasan Khan Moshir od-Dowleh later played a very important role in the history of Iranian legal reform. Cf. Adamiyat, 1976: 409n.

67 Though he later joined the reactionary camp, he was an active member of the first Majlis and played a key role in the writing of the Supplement. Cf. Safaei, 1966; Kirmani, 1967, I: 146, 291, 303, II: 20–22, 92, 405, passim.

68 Mirza Hoseyn was sent to Paris for education and was called home at the time of his brother's recall from Russia. From the second to the sixth Majlis, he was elected from Tehran and served as the president of the Majlis with tremendous ability and effectiveness. Cf. Safaei, 1965: 715–733.

69 In 1920 the name of the school was changed to “school of law” and in 1934, when Tehran University was established, it became part of the university and constituted its Faculty of Law. Cf. Bastani-Parizi, 1968: 79–83, 505–524.

70 Though the cabinet began on 19 July 1909, that is, three days after the capture of Tehran, it was not officially instituted till 14 September 1909. It was headed by Mohammed Vali Khan Tonokaboni, Sepahdar, who had been the commander of the Northern revolutionary forces. Cf. Safaei, 1965; 287–313, esp. 301; Navaei, 1976: 137–146, esp. 153–155.

71 Altogether, these consisted of (1) the ill-fated cabinet of Nasirol Molk which began on 20 May 1909 and ended with the dethronement of Mohammad Ali Shah on 16 July 1909; (2) a good portion of cabinets of the above-mentioned Sepahdar. 1 December 1909 – 20 May 1910 and 12 March – 17 July 1911; and (3) the first cabinet of Semsam os-Saltaneh Bakhtyari: 26 July – 29 November 1911. Cf. Navaei, 1976: 131, 153, 228, 253; Bastani-Parizi, 1968: 517.

72 This act was against the terms of that newly-adopted constitution and contrary to the expectations people had of Moshir od-Dowleh. But on this and similar occasions, he, unlike his equally respected brother Mirza Hoseyn Khan Moatamanol Molk Pir-niya, resorted to a legal device saying “I want the country for the constitution and not other way around.” Cf. Bastani-Parizi, 1968: 513, 520–521; Bahar, 1942: 306; Alavi, 1952: 516.

73 One of the most interesting features of the constitutional history of Iran is the decreasing role of the ulama in the Majlis. For instance, in the first five sessions of the Majlis (1906–1925) their number among the “freshmen” deputies, i.e. those who had entered the Majlis for the first time, ranged from 32% to 18% with an average of 23%. In the eight subsequent Majlis which constituted the Reza Shah period (1925–1941) their number, which was 25% in the first (6th Majlis), reached zero in the last (13th Majlis) and averaged less than 11% for the whole period. Fluctuating between 3% and 0%, the trend continued in the post-Reza Shah era, the only exception being the 17th Majlis, the Mossadiq period, when the number of ulama among the freshmen jumped to a high of 20% and thus raised their average for the eight sessions of the period (14–21) to 11%. Cf. Nezami, 1968: 216 ff.

74 In the 1939 revision, this title of the code which is Arabic and ambiguous was changed to a more precise Persian term: “Aein Dadrasi Madani” (civil procedure) which became the title of the book of Matin-Daftari who had introduced the term; cf. 1948,1: 12.

75 The Organization Code was passed on 19 July 1911, and the Civil Procedures on 20 September and 12 November. Cf. Matin-Daftari, ibid.: 9; Forughi, 1936: 973; Bastani-Parizi, 1968: 514; Mokhtari, 1946: 419.

76 Cf. Majmueh-ye Mosavvabat-e Majlis-e Taqniniyyeh (Compilation of the Laws Passed by the Majlis), I (covering the first to the fourth Majlis): 305–383. The subsequent volumes of this series are devoted one to each Majlis: hereinafter they will be referred to as Ml-4 for the first volume; M5, M6, etc. for the other volumes.

77 The permission for this employment was granted by the Majlis on 18 May 1911. Cf. Ml-4: 494-498; Bastani-Parizi, 1968: 514, 517.

78 The other members of the committee were Sayyed Nasr ol-lah Taqavi, Mohammad Ali Forughi and Mirza Reza Naeini.

79 The first draft of this law was passed on 19 May 1910. It was modified on 25 May and in the following year. Cf. Ml-4: 385; Matin-Daftari, 1948, I: 9, 56.

80 Taqizadeh, 1959: 66. For a thorough examination of the Russian and British involvement in Iran, see Kazemzadeh, 1968.

81 For a concise examination of Reza Khan's ascension to power, see Wilber 1975; Makki, 1944–46.

82 In the fourth Majlis, this permission took place on 14 January 1921 and in the fifth, on 1 December 1924. Cf. Ml-4: 568–569; M5: 15–16.

83 Cf. Zanganeh, n.d.: 7. The author's assertion that this was passed by the fourth Majlis is incorrect, as he himself tells in the same passage that it was passed in 1303–04 which correspond to the time of the fifth Majlis: see also Ml-4: 385n.

84 For details, see Salnameh-ye Pars, 1927: 1–12; 1928: 1 ff.

85 For a concise treatment of Reza Shah's reforms, see Banani, 1961; Wilber 1975.

86 M6: 19–20. This authorization was renewed on 18 June 1928.

87 M6: 34–35. This was a four-article bill and was passed on 17 December 1927. It recognized 11 grades. Each grade qualified an incumbent for 50 tumans plus one-fourth of the cumulative amount earned in the preceding grades. This was an obvious improvement over a 1923 law (cf. p. 114 above) which recognized only 9 salary levels and much less favourable conditions.

88 M6: 49–61. This law consisted of 50 articles and was passed on 19 March 1928. It clearly shows the tremendous influence which the ulama still had. For as we read in the Article 3, the applicants for the judiciary functions specified were required to have a high degree of knowledge in such Islamic sciences as logic, Fiqh and jurisprudence, in addition to modern fields such as civil law, constitutional law, international law, penal law and various procedural laws. Cf. also the law concerning the transfer from the executive to the judiciary ranks, which was passed on 21 July 1928, in M7: 157-158.

89 M6: 62–68. This consisted of 17 articles and was ratified on 20 March 1928.

90 M6: 118–119. This was a single article with two supplements.

91 M6: 126–130. This consisted of 15 articles and was passed on 7 July 1928.

92 M6: 159–246. This consisted of 282 articles and was passed on 21 July 1928.

93 Both the Organization Code (118 articles) and Code of Civil Procedure (308 articles) were revisions of the earlier codes which had been prepared by Moshir od-Dowleh on 12 September 1911. They were ratified on 18 July 1928. Cf. M6: 134–157; M8: 196, art. 22; Matin-Daftari, 1948, I: 10–11, passim.

94 M6: 117: “The government,” says the Act, “is permitted, as of Ordibehesht 20, 1307 [10 May 1928] when the capitulation system is to be annulled, to put in practice the Civil Code which it submitted to the Majlis Shura-ye Melli till the Judiciary Committee of the Majlis declares its definite opinion on the matter.”

95 Like the second, the sixth Majlis was very important in the history of legal reform in Iran. Besides the laws mentioned in the text, the sixth Majlis also made important revisions of the existing laws such as the commercial code and a code requiring, for the first time, official registration of real estates. Cf. M6: 39-42, 126.

96 M7: 71–73; M10: 98–100. According to the new law, no one could be employed as a judge without having a degree in law from either the newly established Tehran University or from a foreign university. As for those who had been employed before and lacked such a degree, they were required to take an examination on the Iranian and European laws and, if successful, could continue their work but in any event could not rise above the rank of sixth in the elevengrade promotional scale which was established in 1928. Cf. Note 88 above; Matin-Daftari, 1948, I: 11.

97 Shayegan, 1943: 37–38; Saleh, 1964: 993; Majmueh-ye Qavanin-e Salyaneh (Annual Compilation of Laws), 1934/1313, Section I: 102. The latter is an annual series which began appearing in 1928/1307 and continued until early 1950s (1330s), containing all laws – acts of the Majlis and government regulations – of a given year in a single volume. Notwithstanding the slight variation of the titles in the Persian, these volumes will hereinafter be referred to as Q1307I 1928, etc.

98 For instance, the consent of the litigants which in the 1929 version of the code (arts. 127, 146–147, 165, 203, 291, 297, 311, 383) had been considered as a necessary prerequisite for the convening and repetition of the court hearing was omitted or repealed. Similarly, the rule of 1939 (art. 166) that the turn of a case would be missed with the absence of either of the parties was replaced by another one, requiring the court to pass a judgement in any event. Cf. Matin-Daftari, 1955: II; 3.

99 Cf. Saleh, 1964: 988. For a detailed list of these legislations, most of which were introduced by Hadi Hedayati, see the daily Ettelaat 1960.

100 It was promulgated by the joint judiciary committees of both Houses on 27 April 1960. Cf. Saleh, 1964: 996.

101 Art. 17 of the law on Shura-ye Davari which, with its subsequent revisions (26 articles), is printed in Kamangar, n.d.: 597–621.

102 For the text of the related law with all of its revisions, see Kamangar, n.d.: 610–612.

103 The law on Shura-ye Davari, Kamangar, n.d. arts. 2, 11–15.

104 For the text with latest revisions (27 articles), see Kamangar, n.d.: 287–298. For an analysis, see Bagley, 1971: 47–64; Anderson, 1971: 16^–27.

105 Except for minor amendments in 1925, 1957 and 1964, the Fundamental Law, 1906, and its Supplement (hereinafter referred to as FL and S respectively) remained unchanged until the 1978 revolution. For the English translation of these documents and of the Belgian Constitution (hereinafter referred to as BC), see Peaslee, 1966, II: 449–470 and III: 72–92 respectively. In the following discussion, quotations and references of FL and S will be from the original Persian text as printed in Saleh, 1969: 734–767.

106 This document, called Nezam-nameh-ye Intekhabat (Election Law) was promulgated on 9 September 1906, and was the first act which followed the Constitutional Decree issued by the Shah on 4 August 1906; for the text, see Ml-4: 36–44. Cf. BC, Heading III, Section II: Concerning the House of Representatives.

107 During the revolution, the progressive wing of the ulama attempted to reconcile the Western constitutional theory with the doctrine of imamate. The most famous and successful of these attempts was made by a qualified Ayatollah, Mohammad Hoseyn Naeini, who for years had lived in Ottoman Turkey. In 1909 he wrote his Tanbihol Omma va Tanzihol Milla which won him considerable recognition. For an analysis, see Hairi, 1977; Adamiyat, 1976: 228–275.

108 On the struggle between the constitutionalists and the government over the constitution, see, e.g., Adamiyat, 1976: 383–408.

109 The few divergences from the BC are: arts. 1 and 2 dealing with religion, art. 17 which prevents action against the feudal land lords, art. 35 on the nature of monarchy and art. 63 which forbids granting honorary ministerial titles. For similarities, the following examples would perhaps suffice: S, art. 3 = BC, art. 23; S, arts. 4–5 = BC, arts. 125–126; S, art. 6 = BC, art. 128; S, arts. 7 = BC, art. 130; S, arts. 8–16 = BC, arts. 6–12; S, arts. 18–21 = BC, arts. 17–19; S, arts. 71–85 = BC, arts. 92–103; S, arts. 87–93 = BC, arts. 105–108; S, arts. 94–107 = BC, arts. 110–120.

110 S, art. 2; while the first article of the Supplement met the opposition of many deputies and many groups outside the Majlis, its second article was opposed by the conservative religious groups who found it gave too much. It was on this issue that the prominent Ayatollah Sheykh Fazlollah Nuri defected from the ranks of the pre-constitutionalist ulama headed by his influential rivals, Ayatollah Behbahani and Ayatollah Tabatabaie. Cf. Adamiyat, 1976: 416–417, 429–432.

111 This was one of the arguments used against the Shah in the 1978 revolution.

112 S. art. 35. This issue is missing in BC obviously for the reason that the idea of rule by Divine Right was still alive in the mind of the Persian King.

113 S, arts. 71–72; cf. BC, arts. 92–93. Thus in a diplomatic dispatch to the Foreign Office, No. 242, November 7, 1907, translating the full text of the Supplement, the British envoy in Tehran comments: “Article No. 71 ff., though ambiguous in wording – and this is deliberate – would, if put in operation, constitute a fatal blow to the judiciary powers of the clergy... It remains to be seen whether this drastic change would in fact be accepted by the Mojtahids or not.

“Article 86, which is also ambiguous in wording, makes all court decisions, whether based on the Sharia or on orf, subject to appeal and review in accordance with the provisions of the Ministry of Justice. If this interpretation is correct, it is certain that the power of the mojtahids who rule at will would be curtailed effectively.” Retranslated from the Persian in Moasir, 1968: 471–72. See also Taqizadeh, 1959: 54; Adamiyat, 1976: 418 ff.

114 S, art. 79; cf. BC, art. 98. It is worth noting that in the Belgian Constitution a jury is empanelled for all criminal affairs and for political and press misdemeanour. But in the Persian document, as mentioned in the text, a jury is foreseen only for “political press offences.”

115 From the report of Walter Smart quoted in Adamiyat, 1976: 420–421.

116 Of the Qanun-e Madani there are many editions. The one used in this study, was prepared by Anvar Hamidi (1959). Reference to this code will hereinafter be made as QM.

117 The Shii Fiqh texts used were Sharh-e Lomeh and Sharh-e Makasib. The other sources included Sheykh Abdol Karim Hilli's Al-Ahkamol Jaafariyyah. Cf. Shayegan, 1943: 38.

118 The Majallatol Ahkamil Adliyyah, generally known as the Majallah, was the Ottoman Civil Code which was promulgated in 1876. It was based on the Hanafi Fiqh and was in force in Syria till 1944. Cf. Anderson, 1954: 29; Liebesny 1967: 20–24. See also p. 98 above.

119 The source book: Code Napoleon or the French Civil Code, 1960, literally translated from the original and official edition published in Paris in 1804, by a Barrister of the Inner Temple. This code is hereinafter referred to as CN.

120 In CN, this is Chapter VI of Title III of Book III and consists of articles 1315 to 1369 (56 articles); in QM, it is made up of 79 articles (from 1257 to 1335).

121 For instance, QM, art. 183, on the definition of contracts and agreement, is identical to CN, art. 1101. Identical or very similar are also: QN, art. 190 and CN, art. 1108 “On Conditions of Validity of Agreement”; QM, arts. 191–209 and CN, arts. 1123–1125 on capacity of contracting paVties; QM, arts. 214–216 and CN, arts. 1126–1130; QM, arts. 217–218 and CN, arts. 131–133 on the cause of contract; QM, arts. 219–231 and CN, arts. 1134–1167 on the effect of obligations. The list can go on and on.

122 The text of the law appears in Kamangar, n.d.: 277–300.

123 The first group, jenayat, included homicide, bodily injury and damage of property, and the second category consisted of illicit sexual intercourse, slanderous allegation of unchastity, drinking alcoholic liquor, armed robbery on roads, theft and apostasy.

124 The hodud consisted of the death penalty, cutting off of hand and/or foot, flogging with specified number of lashes which varied for different crimes; and the taazirs varied from verbal reproval to flogging.

125 Published as a part of Majmueh-ye Qavanin-e Jazaei (Compilation of Penal Laws), 1939: 1–100. Hereinafter referred to as QJ.

126 Mueller, 1960: xiii. The French Penal Code is hereinafter referred to as FPC.

127 These subjects are treated in two chapters in QJ and in six in FPC, the latter being much more systematic. Examples of borrowing are non-retroactivism: QJ, art. 6 and FPC, art. 4; types of crime and punishment: QJ, arts. 7–12 and FPC, arts. 6–11; commencement of crime: QJ, arts. 20–23 and FPC, arts. 2–3; recidivism: QJ, arts. 24–25 and FPC, arts. 56–58; multiplicity of offence: QJ, arts. 31–33 and FPC, art. 5; accessories to an offence: QJ, arts. 27–30 and FPC, arts. 59–60.

128 Here, the “Felonies and Misdemeanours Against the Public Good” are discussed in three chapters in FPC and in six chapters in QJ. The first three chapters have identical titles in both: “Felonies and Misdemeanours” (1) “Against the Security of the state,” (2) “Against the Constitutional Order” and finally (3) “Against the Public Order.” In both, though the length of treatment of each subject varies, the subtitles are almost identical. “Breach of Duty... of Civil Servant...” “Resistance, Disobedience and other Defiances of Public Authority” and “Unlawful Associations and Assemblies,” which are treated as Sections 2, 4 and 7 of Chapter 3 of FPC, are topics of Chapters 4, 5 and 6, respectively, of Part Two of QJ. Besides the differential treatment of some subjects such as offences against the constitutional order, there are some topics which do not appear in both. Revealing among these is the “Breach of Peace by the Ministers of Religion...” which has been treated in FPC (see Section 3 of Part III) but not in QJ.

129 Here most of the subjects are identical. They are treated in fifteen chapters in QJ and in two chapters, of different number of sections (7 and 3, respectively), in FPC.

130 Thus according to art. 212 of QJ, a woman who is married and a man who himself or his partner are married shall be jailed, upon conviction to adultery, for a period from six months to three years.

131 The punishment for each partner is imprisonment from three months to two years, plus a fine of 36,000 to 720,000 francs for the male partner (FPC, arts. 337–338). In view of art. 339, those punishments for a man will have to be based on the charge of his partner's husband.

132 In this case the punishment is only a fine of 36,000 to 720,000 francs.

133 Act of Isfand 12, 1314 (2 March 1936), art. 1: 2 which has been printed as art. 13 of QJ.

134 Civil Procedure Code of Iran, translated into English by Musa Sabi (1972), art. 7. Hereinafter the Code is referred to as CPI.

135 Hence the horizontal arrangement of the General vs. Special courts. Examples of the latter were the disciplinary court, the court of commercial disputes and especially the Sharia courts. Cf. Matin-Daftari, 1948, I: 3, 64 ff.; Kamangar, 1974: 240–296; Damaghani, 1973 passim.

136 Hence the summary courts, the courts of first instance and the courts of appeals. Cf. CPI: arts. 8 and 13–21.

137 For example, a comparison of the Iranian and the French codes of criminal procedure (cf. Kamangar, 1974: 33–130 and Kock 1964) reveals clearly that although both have gone through many revisions and changes of their original editions, they are still very similar and in many areas even identical in legislative techniques and legal structure.

138 See his devastating criticism (1944) where he traces the origin and historical development of the creed.

139 From his editorial to the second series Dowreh-ye Jadid of the famous Persian periodical, Kaveh, 1920: 2, which was published in Berlin.

140 While disagreeing on “solutions,” the massive body of literature which has cumulated on the subject – from the pioneering “Communist Manifesto” of Marx and Engels to Harold Lasswell's idea of “redressing” and penetrating analysis of Edward Shils – clearly demonstrates the staggering complexity of the problem of modernization and, by implication, the unbelievable naivete with which such leaders as Kamal Ataturk, Reza Shah and many others approached the problem.

141 I have in mind Neil Smelser's hierarchy of structural components, the valuative, normative and operative elements, which correspond, with a slight variation, to Masaji Chiba's concept of basic, official and unofficial laws. Cf. Smelser 1962; Chiba 1979.