I. The Traditional Judiciary System of Iran: A Historical Sketch

In the year 640, eight years after the death of the Prophet Mohammed, when the Arabs finally defeated the Sassanid army, the Islamic history of Iran began. True, complete Islamization of the vast Persian Empire took centuries, and in the process Iran provided a fertile soil for the growth of the most heterodox sectarian movement in Islam, the Shiism; but throughout, Iran never entertained doubts in accepting Islam as the most important, if not the only, source of inspiration for shaping its culture and social institutions.

Nowhere has this supreme reign of Islam been so total as in the realm of law, and the observation that “law is the distilled essence of the civilization of a people” (Anderson, 1976:1) is definitely more true of the Sharia in Iran – as well as in other Islamic societies – than of any other religious law anywhere.

This does not of course mean that other types of law did not exist in the country. To be sure, orf (customary law), laws imposed by the conquerors, and above all decree legislation by the rulers were all at times important parts of the country's judiciary system. But leaving aside the exceptional cases, these non-Sharia laws were always used as a supplement to, and at least in theory, in accordance with, the general rules of the Sharia. As has been observed, the Sharia all down the centuries was “... the most effective agent in moulding the social order and community life of Muslim peoples and in holding the social fabric of Islam compact and secure through all the fluctuations of political fortunes” (Hamilton Gibb, quoted in Anderson, ibid.).

But given the dogmatic nature of the Sharia, which prevented any change after its formative years in the eighth century, this domination by the Sharia meant a stagnation in the country's judicial system which lasted more than a millenium. In the nineteenth century when Iran like other Islamic societies came into close contact with the West, this age-old stagnation appeared as a shocking gap and led to a struggle for “reception”¹ of the Western judicial system which itself created more gaps and cultural lags.

In this part we will briefly review the development and basic features of the Sharia and other elements of the traditional judicial system in Iran, and with this as a background will follow the story of the judiciary reform in the country which began in the nineteenth century.