2. THE CIVIL CODE

Unlike the constitutional law, the civil law traditionally received a greater attention from the Sharia. It constituted almost 90% of Moamalat – the second division of Ahkam – which concerned the relationship among God's servants.

The present Civil Code, Qanun-e Madani, consists of three volumes. The first (955 articles) was promulgated in 1928 and the second and third (281 and 79 articles respectively) in 1935.¹¹⁶ It was prepared by a bilingual committee and was based on the classical texts of the Shii Fiqh,¹¹⁷ similar Islamic codes, especially the Majallah,¹¹⁸ the civil codes of France (the Code Napoleon of 1804), Belgium and Switzerland, and the or/(Shayegan, 1943: 38).

As a whole, the Qanun-e Madani is a codified and systematized compendium which is “much more closely based on the Sharia... than was the legislation in the Ottoman Empire or in British India” (Anderson, 1971: 18). Yet the code also reflects a considerable amount of non-Sharia influence. In an apparent attempt to make the new code suitable for modern conditions, the authors have drawn heavily from the European codes especially the Code Napoleon, as well as from the orf. As such, the content of the Qanun-e Madani can be divided into three categories: pure Fiqh, pure secular laws, and mixed laws. The first can be exemplified by laws of inheritance and pious endowments, the second by laws concerning legal capacity, civil rights and civil registrations and the third by laws of property, contracts and obligations.

If not the most systematic, the Qanun-e Madani is regarded as the most successful of the modern codes prepared in Iran.

From the point of view of legislative technique, the Qanun-e Madani, on the whole, is a replica of the Code Napoleon,¹¹⁹ with a minor topical rearrangement due, obviously, to the political circumstances under which it was prepared. After a short preamble “On the Publication, Effect and Application of Laws in General” which is taken verbatim from the French code, the Qanun-e Madani begins with “Property” followed by “Different Modes of Acquiring Property.” These two topics which make the whole of Volume One (Book I and II respectively) of the Quanune Madani were treated in Book II and III of the French code; the reason for beginning from the middle of the French code seems to have been the fact that the two topics of the Volume One constituted the areas with which the capitulatory practices had basically been concerned. Hurrying to meet the deadline for the abolition of capitulation, the authors of the first volume even left out an entire chapter of the French code on “the Proofs of Obligations...,” and, with a more general heading, “On the Proofs of Claim,” treated it later as Volume Three.¹²⁰ This left only one topic, “Persons,” which had been dealt with in Book I of the French code. It was treated as Volume Two of the Iranian code which along with the third volume was promulgated in 1935.

Following these general headings, there are many adoptions of the same nature from the French code; but the more we move to the inner divisions and minor headings of the Qanun-e Madani, the more we see the influence of the well-established typological scheme of the Fiqh; and this is probably one of the reasons for many inconsistencies and organizational incoherencies which characterize the code (Shayegan, 1943: 38–42.)

This mixture is even more apparent in the legal structure of the Qanun-e Madani.

Perhaps the most interesting of the European influences on the legal structure of the Qanun-e Madani is to be found in its Volume Two, on persons. The volume begins with a general introduction to the various aspects of “legal capacity” which it says “begins with birth and ends with death.” (QM. art. 956) This conception of persons, employing both rights and obligations, strikes a delicate contrast with the Sharia which conceives of person primarily in terms of obligation (taklif) and thus treating rights as a residual category in the sense that A's obligation toward B implies the latter's right. With this conception has come many other borrowings: on capacity and citizenship, on civil rights of citizens and foreigners (QM, arts. 958–991; cf. CN, arts. 7–33); on divorce before civil authorities (QM, arts. 992–1001; cf. CN, arts. 34–101); on domicile (QM, arts. 1002–1010; cf. CN, arts. 102–111); on absent persons (QM, arts. 1011–1029; cf.

Important as these Western concepts are in setting the conceptual framework for the legal structure of the Qanun-e Madani they are of course not the only non-Sharia elements in the code. Throughout the Qanun-e Madani we see references to the orf which have helped the code to achieve a greater degree of articulation, flexibility and refinement in comparison to the traditional Fiqh (cf. Salujuqi, 1968: 140–164). For example “ownership” or possession over unclaimed land may be established if a person “settles” the land, but what constitutes “settlement” is a matter which should be determined by or/(QM, art. 141). Similar references to the orf are made in determining the “accessories” which would automatically be considered as part of a solid object (QM, arts. 356–358) or a contract (QM, art. 1312), in determining the shares of different parties in a sharecropping (QM, art. 519), and the right of accession relative to moveable and immoveable properties (QM, art. 54; cf., arts. 107, 225, 286, 521, 542, 549, 664 and 678), and in determining the exact nature of certain legal obligations (QM, arts. 369, 1107).

In the years which followed its first promulgation, a number of articles in the Qanun-e Madani were revised and many new laws which would normally fall under its categories were separately enacted. But while from the point of view of the legal structure, these additions reflected no change, they constituted a significant evolution in the underlying assumptions or philosophy of the code in certain cases and this leads to the third and final area of our discussion.

From this point of view, while the conception of the individual in terms of legal capacity and its variant civil rights in the Qanun-e Madani could be regarded “modern” and Western, the conception of society in the code was definitely traditional and Fiq h-inspirtd.

The only exception to the latter, however, was the Family Protection Law of 1967 which has been acclaimed as “a milestone in the advance of women's rights.” (Bagley, 1971: 47). Leaving aside the struggle for equal rights for women which began in the late nineteenth century, the immediate history of the act could be traced to 26 January 1963 when women were allowed, for the first time, to vote “unofficially” in the referendum held on the Shah's six-point reform programme. Included in the programme was an electoral reform which granted equal voting rights to women and paved the way for subsequent developments.

The Family Protection Law of 1967, as revised in February 1975, constituted a considerable deviation from the Sharia as well as the original Qanun-e Madani. Banning husbands from divorcing their wives “whenever they choose” (QM, art. 1113), the Family Protection Law¹²² required that “all civil disputes which are related to marriage... should be settled in courts...” (art. 1). Without being bound to “observe formal legal procedures” (ibid.), the family courts were authorized to issue certificates of incompatibility after all attempts at reconciliation and only when certain conditions were met (arts. 3–8). Furthermore, according to the act, petitions for divorce could be initiated by either husband or wife and the court were to treat them on equal footing (art. 8); no husband could remarry without the written consent of his wife, and a similar permission of the court (art. 16).