5. THE NON-SHARIA JUDICIARY

Given the basic features of the Sharia and the formalism and rigidity of its procedural aspects, it is obvious that no matter how devoted the community and its rulers were to Islam, the increasingly diverse needs of the Islamic world could not be met solely by the Islamic judiciary.

The immediate consequence of this incapacity of the Sharia judiciary was that it provided an added incentive for the sovereigns’ absolutistic sense of competence in having the authority and ability to right all wrongs. Thus from the early days of the Abbasid period there developed what came to be known as the court of mazalim (complaints, acts of injustice). As a common pre-Islamic practice – popular especially among the Sassanid Kings²⁵ – it was usually a periodic Royal open-house to which every one was free to come. As a means of keeping contact with the subjects, it was, at the same time, a tribunal to which complaints against administrative officials and other citizens could be brought. Gradually the type and frequency of cases brought to these tribunals increased, and thus other officials such as ministers, governors and even local administrators were empowered to exercise mazalim jurisdiction.

Soon the mazalim courts became an autonomous institution throughout the Islamic Empire. In Iran, they existed not only during the Abbasid rule, but also after the emergence of independent indigenous dynasties. In describing these early dynasties, Lambton tells us, for example, that “Under the Saljugs [1038-1194] as under earlier rulers the mazalim courts became, not an exceptional appeal to the sultan in person, but an everyday application to his representative to be dealt with according to a settled practice.

Extended indeed they became. In subsequent centuries, while the “hearing of mazalim” continued as an essential function of the kings and their top officials, its strictly judicial duties expanded into a rather vast administrative apparatus with varying names and a host of specific judiciary functions.²⁷

From the substantive point of view, there came two complementary developments. The first was the emergence of orf as an independent basis of litigation. True, customary law “had contributed a great deal to the formation of Islamic law” (Schacht, 1964: 62) and had especially been used as a basis for istihsan in the Hanafi school and istislah in the Maliki school, two mechanisms used in the process of ijtehad in the formative years of the Sharia.²⁸ But with all this, conscious recognition of customary law as an independent source of litigation did not come until about the fourteenth century, since which time it was increasingly used in contracts and obligations and other areas if, theoretically, it did not contradict the Sharia (Saljuqi, 1968: 32, 46–49; Schacht, 1955b: 77–78).

But contradiction, even if it existed, could be reduced to a minimum, thanks to certain legal devices which helped to narrow the gap between the fixed system of Sharia and the more complex and changing society (cf. Vesey-Fitzgerald, 1955: 107-110). One type of mechanism, developed especially in the Hanafi school and subsequently adopted by the others, was hiyal (literally, tricks), a variety of evasive practices or legal stratagems used for achieving, explicitly or implicitly, illegal ends without violating the letter of the Sharia.²⁹

Another such mechanism used was siyasat osh-Shariyyah (religious policy). Developed during the Abbasid rule in the eleventh century, this theory gave to the rulers – assuming their piety and ability to ascertain and comprehend the Divine Laws – the power to make regulations for carrying out the Sharia.

Unfortunately, no attempt has ever been made to record and compile the Iranian customary laws; of the various decree laws which have been issued at different times by different rulers, only a small portion have survived in history books. Well-known among these are the various codes which were imposed by the Mongol invaders. The most famous of these codes are the Yasa of Genghiz Khan,³⁰ the Yerlighs of Ghazan Khan, the Tozuks of Tamerlane and the so-called Law of Ozun Hasan.³¹

In the large-scale administrative reform which took place during the reign of the Safavid King, Shah Abbas the Great (1587–1629), the so-called mahakim-e orf (courts of customary law) were officially established and as a counterpart of the Sharia system they continued up to the twentieth century (Shayegan, 1943: 23).

In sharp contrast to Sharia courts, the mahakim-e orf were not bound by any strict regulations or rules of procedure; the persons who presided over them were not required to have legal training. In many cases they were responsible only to hear the litigants and collect evidence without the power to make a decision, and even if they had such a power, the evidence they used and the procedures they followed were far from acceptable by the original Sharia standards; substantively, they functioned on the basis of decree legislations, government regulations, and of course the orf. The latter in turn was based on oral tradition, on precedent, and on custom. “But there being no written or recognized code, it varied still more in practice according to the character or caprice of the individual who administered it; and so far from any attempt being made to hunt up precedents or to ascertain what was done in parallel cases before, the decision was as a rule promptly given and promptly executed by the civil officer... whose sole guide... was a rough sense of right and wrong” (Curzon, 1892, I: 454).