1. THE IMMEDIATE FACTORS OF REFORM
Judiciary reform or, put more aptly, conscious efforts to Westernize the legal system of Iran, were enhanced by at least three immediate factors. One of them was the existence of capitulary (extra-territorial) rights for foreigners.
The last Russo-Iranian war, in which Iran lost the remainder of its possessions in the Caucasus, ended in the humiliating Turkomanchi Treaty of 1828. According to this treaty, the Russian subjects came to be almost totally exempted from Iranian legal jurisdiction. Soon after, other foreign governments followed suit and assumed capitulary privileges for themselves. On the excuse that the Sharia courts did not give equal treatment to Moslem and non-Moslem litigants and that the chaotic secular courts did not dare to oppose them, the European embassies in subsequent years extended their self-proclaimed privileges and established virtually independent judiciaries of their own. The so-called “legal agencies” (kargozariha) which were attached to these embassies and their consulates became sources of such a tremendous degree of abuse that they even exempted Iranian citizens they favoured from paying taxes to their own government.34On occasion these developments served as grounds for the European governments to put pressure on Iran to undertake legal reforms.35 But as a source of humiliation, the capitulary system had a strong impact on the nationalists and reform-minded politicians, and played an important role in the effort to bring about judiciary reform up until its abolition in 1928.36
The second motivating factor for legal reform in Iran came from the similar developments in other Islamic countries, especially the Ottoman Turkey. As early as 1789, the Ottomans started giving serious thought to their growing weakness vis-à-vis the West. In 1837, a committee was established to prepare legal and administrative reforms with special attention to the adoption of European laws.
This marked the beginning of what is known as the era of Tanzimat (a reform programme) and led to the proclamation, on 3 November 1839, of the Khatt-e Sharif-e Golkhaneh (Holy Edict of the Rose Chamber), which officially initiated the legal reform. After ten years of debate and discussion the results finally started appearing: Between 1850 and 1863 various codes, based almost entirely on the French codes, were promulgated. These were followed by the well-known civil code called Majallah, of 1876, which was based on the Sharia of the Hanafi rite, and along these, purely secular and mixed courts developed in conjunction with the traditional Sharia tribunals.37With these developments in Turkey the Iranians were in close touch; the Ottoman capital was a sanctuary for the dissident Iranian intellectuals and politicians; and even if the statement that “... virtually the whole political vocabulary of Persian [in the nineteenth century] may be said to have been derived from the Ottoman Turkish” (Algar, 1973: 27) is not completely true, there can be little doubt that the Ottoman developments had a great impact on the reform movement in Iran, especially in the second half of the nineteenth century.
Perhaps the most significant factor behind the legal reform was the campaign by the Iranian writers. One of the popular themes which from the second half of the eighteenth century received increasing attention in Persian writings was law and its role in human society. Merchants, travellers and diplomats who visited or lived in Europe gave detailed descriptions of law, the judiciary system and civil liberties in Europe and launched, with varying degrees of openness, a massive campaign for reform and rule of law.
These included such writers as Mirza Abutalib (1752–1806) who after six years of travel in Europe, published a diary devoting two chapters to the law and political system of England;38 Mirza Fathali Akhond-Zadeh (1812–1878) who spent years in Petersburg and Tiflis, then one of the centres of progressive thinking in Russia, and wrote devastating criticisms of Iran's reactionary religious groups, despotic rules and social and judiciary conditions;39 and the philosopher-critic, Mirza Aqa Khan-e Kirmani (1853–92) whose uncompromising attacks, from exile in Turkey, on Iran's religious and political leaders for the lawlessness which reigned supreme in the country, led to an international dispute between Iran and the Ottoman Empire, and finally resulted in his deportation and brutal execution (cf. Adamiyat, 1967).
Above all these of course stood Sayyid Jamal od-Din Asadabadi (1838–1897), the well-known pan-Islamist whose strong personality and relentless campaign against the rulers of Iran and other Islamic states was a most powerful voice for reform in the second half of the nineteenth century.These were great intellectual and political figures for whom the question of law was part of a general plan for socio-political change. The man more directly concerned with the question of law and the legal system was Mirza Malkom Khan (1833-1908). Born to an Armenian family, he was sent to France for education. Upon his return to Iran in 1850, he entered the government service in the newly established Bureau of Translation and soon found his way to Nasir od-Din Shah's court. In 1859, on the occasion of the Shah's taking a step towards administrative reform, as we shall discuss shortly, Malkom seized the opportunity and published his famous treatise, the Kitabcheh-ye Gheybi.40 After a long preamble where, among other things, the author gave lip-service to the ulama and assured the Shah that his proposed measures were not designed to undermine his supreme authority, he proposed a set of 180 specific proposals under 24 general headings or qanuns (laws), which as a whole could be regarded as a constitution.41 Especially significant among these laws were those concerned with the establishment of a legislative body. The body was supposed (1) to systematize and codify all existing laws including the Sharia and what he called “the governmental laws,” (2) to write and ratify whatever law it deemed necessary for completing the existing set of laws, and finally, (3) to publish the finalized laws in five volumes as Civil Law, Procedural Law, Penal Law, Constitutional Law, and Administrative Law (1948, Law No. 11, arts. 1–4). In addition, Malkom proposed a new and relatively modern judiciary organization which included a divan-e aala (supreme court) to be established in the capital, a divan adliyyeh (court of justice) to be established in each province and a divan islah (court of first instance) for each district.
These courts, hierarchically organized, were to be manned by a number of judges and officials appointed by the Shah and managed by the Minister of Justice (ibid. Law No. 35). Although – in spite of his initial success – Malkom's attempts, like others before, failed to produce a lasting result, he never ceased championing for law. In private correspondence with the Shah and his high officials and in booklets which he published subsequently, Malkom expanded his original ideas and, after his retirement in 1898, he established a newspaper whose very name Qanun (law) was a reflection of his life-long preoccupation.42In addition to those mentioned above, there were many writings, including diplomatic reports, periodicals published at home and abroad, and critical social analyses, which were involved in the campaign. While disagreeing on the course of action to be taken, they all agreed (1) that the key to Europe's progress and superiority was its system of law, (2) that Iran was in a desperate need of reform and this reform had to begin with its system of law. But as to what the exact nature of this law was and where it was to come from was a matter of disagreement, and this was a conflict which has continued up to the present day.43