Such was then the nature and condition of the judiciary in Iran before the nineteenth century.
With all its substantive and procedural shortcomings and deficiencies, the traditional judiciary in Iran had one essential characteristic: it had evolved and was rooted in the society; and as long as the society was “innerdirected”, to use David Riesman's term,32 the judiciary was consistent with the rest of its institutions and its shortcomings were not much noticed.
“To the bird which is raised in a cage,” using the imagery of a Persian poet, “the contrast between cage and nest is meaningless.”33But the contrast finally did emerge. In the beginning of the nineteenth century, direct contact with the West began, and Iran, like most of the Moslem world, found itself in an awkward condition militarily, socially and economically. Almost suddenly, the tranquillity and self-confidence of an age-old inner-directedness was gone, and a mesmerized attitude of other-directedness coupled with a shattering sense of inferiority had taken its place. As the contact increased, the contrast became more and more vivid and the urge for reform and Westernization more and more compelling.
On the cultural and institutional level, one of the most conspicuous areas of contrast was the country's system of justice which in the eyes of a Western observer appeared most “abominable” and “shocking” (Curzon, 1892, I: 456). Describing this state of shock, the observer provided an account of the system in the following words: “Not even the most generous estimate of the merits or the most lenient consideration of the failings of the judicial procedure... can blind us to the fact that it is lamentably deficient in the two essentials of an effective legal system, viz. a compact and systematized code of law, and a competent tribunal to administer it. Although the Ecclesiastical Law has been subjected to a rough codification, this is neither scientific, exhaustive, nor suited to modern conditions.
The Common Law has no written existence, and is moulded by the arbitrary idiosyncrasies of individuals. The jurisdiction of the clerical and secular courts overlap; nor is there any intelligible distinction between their prerogatives and functions. Cases are referred to one or the other according to the fancy of the appellant, and frequently pass through the two courts in succession. Even if it be thought hazardous or unwise to interfere with the law based on the Quran, no voice can possibly defend the haphazard condition of the Common Law which is in a state of disgraceful uncertainty and, as an instrument of guidance to civil magistrates, is practically useless” (ibid.: 459).This then was how the state of the judiciary looked in Iran in the beginning of the nineteenth century. With such a background it is not surprising that in the long process of struggle for the rule of law – “the most dominant issue in the country throughout the nineteenth century” (Adamiyat, 1975: 308) – the strictly judicial aspect of the problem was even more tedious than its political side. In any event, after the political struggle was terminated by the constitutional revolution, the judiciary reform emerged as a very important, if not the most important, problem with which the newly established Majlis (the Parliament) was concerned.
In this part we shall briefly review the process of the judiciary reform as it began in the nineteenth century, and in the subsequent sections take up the substantive and other aspects of the new judiciary system thus introduced.