an examination of the development of iranian law through islamic...

AN EXAMINATION OF THE DEVELOPMENT

OF IRANIAN LAW THROUGH ISLAMIC

AND SHIITE LAWS

By: Dr. H. Samavati .;;:

• - Assistant Professor in the Faculty of Judicial Siences and Administrative Services (Iran)

Legal Views - No. eight/ 2

INTRODUCTION

Nowadays Islam as a powerful religion has been known to the

world. Everybody with a different ideology has heard, at least, about

the Holy Book of Islam i.e. The Qur'an and its prophet Muhammad.

However, studying Islam as a system of law is a fascinating subject

that attreacted the attention of the western lawyers and jurists

recently.

Although many books and articles have been written, and some

important researches have been done on Islamic law, shiite law, as

one of the interesting Islamic legal school, has been ignored by such

writers and researchers. Therefore, since most of Iranian law based

on and mixed with shiite law, to make easy to understand the

different aspests of this law, we are obliged to discuss some general

facets of Islamic law and Shiite law.

Accordingly, we divide our study into three chapters. In the first

and second chapters, we shall examine the historical development

and the sources of Islamic law; and then the emergence of shi'ah and

shiite law will be discussed. Finally, in the third chapter, we shall

analise the legal history of Iranian law and the effect of Islamic law

on its sources.

An Examination of ... /3

CHAPTER ONE: GENERAL ASPECTS OF ISLAMIC LAW

(I) The historical development of Islamic law

Sometimes it is claimed that Islamic Jaw has no historical

background like the positive Jaw ( eg. Enlgish Jaw). For Islamic law is

a divine law and a religious Jaw, and muslims believe that God is the

law giver. Coulson says: "Jaw in classical Islamic theory, is the

revealed will of God, a divinely ordained system preceding and not

preceded by the muslim state, controlling and not controlled by

muslim society".(1) Therefore, since the mankind have no role in

making the law, the existence of any development in such a law

unimaginable. According to this view, the history of Islamic law can

be only useful if we want to know i10w the Islamic jurists interpreted

the Qur'an: ''The role of the individual jurist is measured by the

purely subjective standard of its intrinsic worth in the process of

discovery of the divine command".(2)

Schacht has a different view. He beli~s Islamic Jaw has a '"<~·~

historical background which has been created .. by the Islamic jurists:

and such developments in Islamic law not only include the divine Jaw

but a lso the rules invented by this jurists. He explains that the jurists

at first _started to _import their opinions in Islamic law hy

1- Coulson NJ., A History of Islamic law, Edinburgh, the University prc.o;s, 1964, PP. 1-2.

2· lbid, at 2.


interpretation of the Qur'an and the tradition of the prophet. Then,

during the second and third centuries after HijrahC3) (hereinafter

A.H.) they minimized 'their import by interpretation, and embody

their own attitude and doctrines in other a lleged traditions from the

prophet'. C4)

However, the fact is that, firstly, Isla m is a religion based on the

nature of human. It has two basic principles: faith (iman) and

worship of God (ibadat). " Iman" or faith means that a muslim must

believe in God, his messengers, particulary Muhammad. and his

books, Particulary the Qur'an. He must also believe that there is

another world beside this world and there are angels of God. lhadat

means practising Islam by saying prayer and fasting and etc.

Islam a lso is a moral system and, at its prophet said. establishing a

good morals in the Isla mic society was his prophetic mission. Apart

from religious and moral aspects. Isla m contains a system of law

ehich in various ways can regulate the relationships of individuals.

society with individuals. and the government withe the society and

individuals. These three dimiensions of Islam together called

'shari'ah'.

Knowlege of "Shari'ah" can he divided into two kind:

knowledge of basic principles (ilm al-usul) and science of the

3· ·n1e !~Iamie date b ~tarted when the prophet of Islam travelled from Medmah (i.e. 621 AC) ..

This jouml..')' IS called llijra .

.t- Schacht .loseph. An Introduction to blamic law. Oxfortl. at the Clarendon press. I ?64. p. 3)-3{,.


branches of Islam (ilm ai-Furu'). The second Kind also is called "ilm

al-fiqh" which talks about the rules which can be taken from the

principles of Islam by jurists. In fact the moral rules, the rules on

worship of God, and also the rules on social relations and legal rules

are driven from ilm al-Fiqh.

Secondly, the focus of Islam is on the meaning and the aim of

living in this world and the best way which mankind can achieve this

aim. An Iranian poetC5) explains this issue by saying: we do not look

at the outward actions of people or their talk. we only observe their

heart and their interntions.

Accordingly, one of the characteristics of Islamic law is that for

the needs of human which are constant and immutable it provides

immutable rules; and for those needs which are changeable in

different circumstances it provides tlexible rules. However, these

changeable rules must, in a way, stem from the immutable rules. For

example, Islam has an immutable rule that provides muslims are not

allowed to devour men's property wrongfully. It means that selling

and buying a thing must have a reasonable purpose. Earning wealth

without a lawful reason is prohibited in Islam. On the other hand,

there is a rule that selling and buying blood is forbidden. The jurists

reasons that this rule is changeable because there was not any

reasonable benefit and purpose for selling or buying blood of human

5- Maulana .lalal-ud-din Rumi.


or animals, when the law came into existence. Therefore, although

this rule is based on the immutable rule provided by the Qur'an: 'do

not devour men's property wrongfully', if reasonable purpose in

selling and buying the blood of animals, which must be for the

benefit of mankind, can be found today, it 1s possible to change the

law.

Thus, the Islamic jurists not only must try to discover the right

meaning of the Qur'anic verses and divine commands, they must also

attempt, in certain circumstances, to provide specific rules according

to theri understanding of general principles of Islamic law.

As a result, it can be rightly said that Islamic law has a historical

background which mankind is involved in it. From this point of view

these two tasks of the jurists shape the Islamic law in a way that

common law has been made. If we say that common law is made

from the judicial precedent, we can also say Islamic law is lawyer

law. For is unwritten law and this is the task of the jurists to expound

the immutable principles and provide rules for specific cases.

(II) The differences and relations of Islamic law with other

systems of laws

As has been mentioned before, Islamic law is part of the religion

of Islam. In Islam every rule and principle on different aspects of


human life has :.1 close relation to other rules and principles. It is,

therefore, true that understanding Islamic law is not easy for law

students until they obtain a sufficient knowledge on economic,

politicai, social aspects of Islam. In Islam when a society or

individual is progressive and prosperous that their motion and

movement at the same time has two directions: horizontal and

vertical directions. The purpose of all rules and laws in Islam is to

move the society in these two directions. By horizontal direction, we

mean that any rule and order from God regulates the relationships

of the Muslim soc.iety and Muslim individuals; and by vertical

direction, it is meant that such laws establish a close relationship

between the society and individuals with God.

According to Islam, living and dying all belong to God; and he

provides the rules and people must obey him. Certain rules and

principles expressly and clearly have been provided by God in his

holy book or by his prophet, Muhammad. Muslims believe by

complying these rules they will be delivered in this world and in the

other world. However, when some rules need explanations or with

regard to the contermporary issues and problems in the world

require to be changed and the new ideas should be given, here the

Islamic jurists can provide rules on the basis of the general principles

of Islam, if they are unable to find out the right answer for the

problem from the primary sources of Islamic law. They also may

confirm some legal provisions of other systems of law (man made


laws) provided that they are not oppose these general principles.

This characteristic of Islamic law cannot be find in other systems of

law.

Some writers, such as Goldziher: have claimed that as Islamic law

grew at the time that Roman law was in the peak of its development,

Muslim jurists were influenced to a great extent by Roman law.

However, such a allegation is hard to believe. Moursi Badr says:

"these speculations are presented as scholarly opinion and are often

made excathedra, in a matter of-fact way which is all the more

astonishing for the lack of evidence or the very scanty evidence

adduced in support. Indeed, no good case has ever been made for

any of the so-called borrowing from Roman Jaw". (6)

Although there is a resemblance between common law and

Islamic law in this regard that both are unwritten Jaw, Islamic law,

obviously, did not borrowed from common law. For common Jaw

began from the eleventh century.

(Ill) The reasons of the survival of Islamic law

Islamic law is one of the great legal systems of the moderTI world

and perfectly is able to deal with the affair of over one billion

muslims.

6- Moursi Badr Gamal, lslamtc law: It~ Relation to Other legal Systems, American .Journal or

Comparative law. Vol. 26 [1971!] 187, at 191.


We have discussed kinds of rule in Islamic Jaw earlier and pointed

out that there are some rules in Islamic law which jurists can change

them where new conditions exist or different circumstances arise.

This ability is one of the reasons of survival of Islamic law for near

one thousand and four hundred years.

(i) There is a kind of general rules which their end is to control ana

moderate other rules and laws; such as the "no harm" (Ia zirar) rule.

(ii) Islam bestows authorities to the good and competent Islamic

government to provide some rules helping in governing an Islamic

country. In this relation, David and Brierley say that the Islamic

goverment may have no ligislative power, the sovereign can shape

state policy (siyasa) and has the especial responsibility of watching

over judicial asminstration.(7)

(iii) Under Islamic law private contracts are enforceable provided

that they do not oppose the Islamic rules. This matter enables

individuals to benefit from personal freedom.

(iv) ljtihad (endeavour) can be rightly said to be one of the

important reasons of the survival of Islamic Law. Ijtihad means the

ability of finding out the subsidiary rules from the basic principles of

Islam. Not any Islamic jurist has such an ability. Sunnites (who are

the majority of muslims) use to believe that the Islamic jurists are

7- David Rene' and Bricley John F-.C., Major Legal Systems in the world Today, 2d. ed., Stevens &

Sons, London, 1978, at 435


not allowed to relay on ijtihad and the door of such an endeavour

must be closed; and muslims must follow one of the four Sunni

schools. However, recently, some Sunni scholars such as ibn

Taymiyya, Muhammad Abduh, Muhammad ibn Abdul-Wahhab have

tried to reopen this door. This movement is the root of modernism

in Sunnite sects. Muslehuddin explains the matter as folliws:

"Modermsm, in Islam, is in its origin, a movement against "taqlid" or

blind imitation of the past which calls for ijtihad. According to the

modernists ijtihad is the rational interpretation of the Qur'an as to

satisfy the present needs of society".(8)

Unlike the Sunnite scholars the Shiite jurists always were on the

opinion that ijtihad is a necessity of Islamic law. They reason since

the world is in change and new events and problems arise every

daym there must be some jurists who competently answer to these

new problems. Therefore, Shiite muslims are not allowed to imitate

(taqlid) form a dead Islamic jurists (mujtahids).

As a result, the doctrine of ijtihand will not let Islamic Jaw

becomes old and unable to respond to new problems.

(IV) The emergence of different schools of law in Islam

The history of Islamic law began from the time that Muhammad

g. Muslehuddin Muhammad, Philiwophy of Islamic Law and the orientalists, Islamic publications,

Ltd., Pakistan, p. 82.


Started preaching as a messenger of God. particulary, in the last ten

years of his life, he was not only a messenger of God, but also the

religious, social and political leader of Islamic society. However,

after his death, it "Y~ the task of Islamic jurists to interpret the

Qur'an and the tradition of the prophet. The evolution of Islam in

the world and new circumstance, forced the jurists to resort to other

sources based on the two primary sources, the Qur'an and the

tradition and practice of the prophet, and use the doctrine of ijtihad.

As a result of ijtihad, the ground for the appearance of different

schools was created. The most important these schools are four

Sunnite schools and three Shiite schools.

The four Sunnite schools, in turn, are: Hanafi, Maliki, Shati'i, and

Hanbali schools.

Imam Abu Hanafia, who was born in 80 A.H (699 AC) and died

in 150 A.H. (766 Ac), was the founder of Hanafi School. He paid a

great attention to the principles of "qiyas" or Analogical deduction.

The Maliki school was established by Imam Malik ibn Anas

Asbehi who was born in 90 or 97 A.H. (713 AC) and died in 179

(795). The emphasis of this school is much on ijma (consensus of

opinion among the jurists) as a secondeary source of Islamic law.

Imam Malik also wrote a book on fiqh and hadith (the tradition fo

the prophet).

Imam Muhammad ibn Idris Al-Shafi'i was the fornder of the

school of Shafi'i (J50/767 to 204/820). He was a pupil of Imam


Malik; and it is said that he also was the founer of the science of

"usul" (the science of the principles nad method of islamic

jurisprudence). His two main books are 'Umm' and 'Risala'.

Imam Ahmad Hanbal (164.780 to 241.855), who was a disciple

and contemporary of Imam Shafi'i, established the fourth school of

Sunni Muslims (the Hanbali school). His emphasis was on the

primary sources and bilieved that in very rare situations should be

resorted to 'qiyas'.

It is notable that the majority of muslims follow one of these four

sects or schools.

In the second section we shall discuss the three main Shiite

schools: Ithna' Asharis (Twelvers ), Ismailis and Zaydis.

(V) The sources of Islamic law from the Sunnite sects point of

view

The sources of Islamic law is divided into two types: Primary and

secondary sources. The primary sources of Islamic law are the

Qur'an and Sunna.

(i) The Primary Sources

(a) The Qur,an:

The Qur'an is the first primary source of Islamic Law. Lit~rally

Qur'an means 'reading aloud'. It is divided in 114 chapters and

contains 86430 words and 3,23,760 letters. there are 6666 verses in

An Examination of .. ./13

this holy book. The verses of the Qur'an were revealed on

Muhammad within 22 years: and after his death the verses was

arranged and formed the present book. There are more than five

hundred legal rules, in a better words injunctions (Ahkam) in the

Qur'an.

The Islamic jurists use the verses of the Qur'an to find out the

answer of the present cases beron~ them. However, some verses of

the Qur'an need interpretation. In fact, there are two kinds of verse

in the Qur'an: Verses admitting no allegorical interpreatation

(Mohkamat), and verses which are need to interpret and to explain

(Motishabihat). For example, the Qur'an says: "The woman and the

man guilty of adultery or fornication, tlog each one of them with a

hundred stripes".(9) Here, without any doubt can be conceived that

tlogging a woman or man who committed adultery is obligatory and

is the only punishment for such a crime. therefore, this verse of the

Qur'an is 'Mohkam' and does not need any interpretation. on the

contrary, when the Qur'an says: "As to the theft male or female, cut

off his hands or her hands"<10), the verb "qata" in Arabic has two

meaning: 'cutting' off and 'wounding'. Therefore, without

interpretation it is not possible to understand that what the Qur"an

meant by using such a verb. of course, the jurists by referring to the

tradition and practice of the prophet realised that 'cutting off' was

1). Qur'an, Ch. 24, Verse 2. 10- Qur·~n Ch. 5: 34

Legal Views • No. eight/ 14

meant by the Qur'an.

The science that the Islamic jurists use to make clear the meaning

of the Qur'an is called "tafsir". Tafsir means 'lifting the curtain' or

'making clear' or 'showing the objective of something'.

(b) Sunna (Sunnah)

The second primary sources of Islamic law is Sunna (living

tradition). In Islamic Jaw, Sunna means what the prophet of Islam

said, did or approved. Nevertheless, according to the Sunnite

scholars, as Vesey-Fitzgerald states, the word 'Sunna' used to cover

the practice of the prophet together with the practice of his

conpanions (ashab)

Does Sunna includes the tradition of individual muslim or the that

of the community in general? the matter is in dispute among the

sunnite scholar.<11 )

(ii) The secondary sources

(a) Jjma':

According to the Sunnite scholars, the first secondary source of

Islamic law is Ijma' (the consensus of opinions). But when this

question arise that the consensus of whom is biding and should be

II - Sec Abdulla hi Ahmad An-na' im. Tow:~rd an Isla mic Refom1atinn. Syracuse University prcc. I 1JX7.

pp. 2 1-22.


regarded as a suource of Islamic law, the matter is subject of much

controversy. The Mli~ci scholars regard the consensus of local Muslim

community as a sJurce of Islamic law. They invoke to this hadith

(the prophet\ saying) that Muhammad said: "My people would

never agree on whoever leads them astray or error''. Also, they

reason that the Qur'an says " ... who so makes a breach with the

messenger after the guidance has become clear to him. and follows a

way other that becoming to men of faith , we shall leave him over to

what he has chosen and we shall land him in the fire of hell-an evil

refuge".<12) In this verse God clearly forbids anyone to choose any

way which is not the way of the muslim connunity. In this respect,

Shafi'i believed that ijma ' is the consensus of whole muslim

community and not that of Islamic scholars.< 13)

Nevertheless, Ijma' is divided into two types: ijam' al-umma

(consensus of muslim community) and ijma al-ulama (consensus of

Islamic scholar).

David and Brierley say: "In order that a rule of law be admitted

by ijma', it is not necessary that the mass of the faithful support it,

nor need it represent the unanimous feeling of all members of the

community. Ijma' has nothing to do with the "custom" of our western

laws. The unanimity required is that of competent persons - those

12- 1\ur"an ch. 4:11 5 .

13- See Schacht, The Origin of Muhammadiln .Jurisprudence, p. 123.


who specical role is to discover and reveal the law, that is, the legal

scholars of Islam (fukaha )"( 14)

(b) Qiyas:

The word "qiyas" donates 'measuring' hetween two things or

objects. It has been translated to "analogical reasoning" or ....

"analogical deduction". However, the term 'qiyas' or analogy

employed by Islamic logicians as well as Islamic jurists. In logic, qiyas

is an argument that by providing the known general facts, logicians

can discover or prove an unknown specific fact. For example. they

say: "The world is in change. Every changeable objects are created

beings. Thus, the world was created.

On the contrary, the jurists do not use qiyas for such purpose, but

they employ qiyas to determine the cause (illa) of an known specific

law laid down by Islam, and then in similar situations, if the same

cause is found extent the rule to these new circumstances. For

instance, they say wine was forbidden because of its intoxicating

effect. Thus, any liquids which have the same effect should be

prohibited.

It is claimed that since the Sunnite sects believe that the gate of

ijtihad has been closed in the ninth century, 'it thus possible 1.0

continue to deduce rulings for new cases out of the preceden~s of

1-t- Supcra n. 7. at 424.

An Examination of .. Jl7

earlier established principles'.(15) Nevertheless, some scholars do not

accept qiyas as a source of Islamic law. They believe that qiyas can

only help to discover a rule, but it does not and cannot establishes a

new rule :

"Analogical reasonmg can only be considered as a means of

interpreting and applying the law. Muslim law is based on the

principle of authority. If. hy admitting analogical argument, room has

heen made for ra tional means of interpretation, it is nonetheless

obvious that it ca nnot he used to create basic rules established in the

tenth century.l1h)

CHAPTER TWO: THE APPEARANCE OF SHIITE SECT AND ITS

DEVELOPMENTS

(I)The history of shi'ism and shiite law

Shiites are those who fo llow Ali (the fourth Caliph). They believe

that Ali and his family by divine right were the true successors of the

prophet of Islam and the true religious and political leaders (Imam)

of Islamic community.

Shahrastani says that Shi'ism hold that Ali's caliphate. and

imamate were based on designation and appointment, either open

or hidden. Then he explains: "According to them (Shiites) the

15- Abdullahi, supra n.ll , at 25. 16- David & Brierley, supra n.7, p. 427.


imammte is not a civil matter, validly settled by the will of the people

appointing an imam of their own choosing: it is a fundamental

matter and a basic element of religion. Messengers of God may not

ignore and disregard it, nor leave it to choice of the common

people".C17)

The history of Shi'ah has been misunderstood by some

orientalists. perhaps, the existence of some ignorant writers, who has

shown us a turbid picture of Islam's history, has assisted such

misunderstanding. For example an Arabic writer has said: "The truth

is that Shi'ism was refuge of those who wished to destory Islam

through enmity and baseless talk, and of those who wi~hed to destroy

Islam through enmity and baseless talk, and was the place of shelter

for those who wanted to introduce their ancestral teachings of

Israelite, Christian and Zoroastrian religions into Islam".(1H)

Also, Edward Browne has believed that the Shi 'ism has been

rooted from the belief that Iranian had on the Sasanian kings.

According to this belief kingship and leadership is a gift from God

and he chooses the kings.C19)

17- Muhammad b. Abdal-Karim Shahrastani (died 1153), Muslim Sects and Divisions, tr~nslated hy

A.K. Kazr and J.G. F1ynn, Degan Paul International, London, 1984, p. 125.

18- See Ahmad Amin, Fajru '1-lslam, p. 330, Quoted from The Origin of Shiite Islam and Its

Principles by Allamah Shykh Muhammad Husayn AI-Kashfu '1-Chta ' (translated from Arabic to

English), Ansariyan Publications, Iran, 1989.

19- Browne Edward, History of Persian Literature (the persian translation), Bol. l,p. 195.

An Examination of ... / 19

However, the fact is that Shi'ism began with the beginning of

Islam. Allamah kashif Al-Chita, in his book gives several references

to the Sunnite books that they conceded that Shi 'ism was recognised

at the biginning of Islam. For example, one (Ibn Asahir) has

reported that the prophet said: "I swear by God the Almighty, who is

the master of my life, that Ali and his Shiites shall be successful on

day of judgement". The other said that Muhammad said to Ali: "oh

Ali, you and your followers shall attain paradise".<20)

Of course, Shi'ism when actually showed itself that Ali and some

of the companions of the prophet, such as Miqdad, Salman and

Zubyr, protested against the act of choosing someone as a caliph and

successor of the prophet by election. Allamah Tabataba\ believes

that "It was this protest and criticism which separated from the

majority the minority that were following Ali and made hi~ followers

known to society as the "partisans" or "shi'ah" of Ali.(2t)

Accordigly, the main differnce between shite and Sunnite is the

doctrine of "imamat". Accepting Ali and his family as imams created

a distinction between shiite law and Sunnite Jaw in this respect that

although imam is the successor of the prophet but ·the function of

imamate is much wider than what Sunnite believe about caliphs. In

the words of Algar: "The functions of the successor, the Imam, in

20- Supra n. 18 at p. 26.

21 - Allamah Seyyed Muhammad Husayn Tabataba'i, Shiite Islam, Translated from persian by Seyyed

Hossein Nasr, Free Islamic Literatures, Inc., USA, 1979, p. 41.


Shi'i beliefs, include the authoritative explanation of the teJct of the

Qur'an, the authoritative interpretation and even extension of

Islamic law ... "<22)

Therfore, Imam not only protects Islam, but also completes the

religious cads.

(II) Division of Shi'ism

Shi'ism is divide into several sects. The most important sects of

Shi'ah, as been mentioned earlier, are Ithna' Asharis (Twelwers),

Zaydis, and Ismailis.

(a) lthna Asharis :

According to this sect the imamate in Islam consists of twelve

imams: Ali ibn Abi Talib and his two sons, Hasan and Husayn, Ali

Zainul Abidin (The son of Husayn), Muhammad Baqir, jafar Sadiq,

Musa Kazim, Ali Riza, Muhammad Taqi, Ali Naqi, Hsan Askari, and

Muhammad mahdi. These perfect persons do not commit sin and

are infallible.

Here, two points should be mentioned. First, since the founder of

Shiite law is Imam jafar Sadiq (The sixth Imam), the Twelvers,

sometimes are called the followers of jafari's sect.

The second point is that, this sect belieevs that the twelfth Imam,

who was born in madina in 256 A.H, disappeared in 261 AH. (till

22- Algar Hamid, The roots of the Islamic Revolution, The Open Press, London, 1983, p. 10.


now) and he will appear again when earth is full of oppression and

cruelties. He will emerge in Mecca, whilst jesus will accompany him.

Most of Iranian people ard Shi 'ites' and according to principle 12

of The Iranian constitution the state religion of Iran is jafari Ithna

Ashari sect and shall rremain the same forever.

(b) Zadis:

The followers of this sect believe that after the foruth Imam (Ali

ibn Husayn) one of his son, Zaid (and not Muhammad Baqir), was

the fifth and last Imam. Today, they can be found in Y eman.

Allama Tabatabai' says: From what is known of Zaydi beliefs it

can be said that in the principles of Islam (usul) they follow a path

chose to that of the Mu'tazilites<23), while in the branches or

derivative institutions of the law (furu') they apply the jurisprudence

of Abu Hanifah, the founder of one of the four Sunnite school of

law. They differ among themselves concerning certain problems".(24)

(c) Ismilis :

They are a minority of shiites who believe that after the sixth

Imam, jafar ibn Muhammad, his oldest son Ismail (and not Imam

Musa kazim) was the Imam. Although Ismail died during the lifetime

of his father, some believe that he disappeared and will appear

23- 1bere are two oaaic schools of thought in the Sunnite sects: Ashariyya school and Mu'tazila

ICbooL According to Alhariyya, a thing is good because God so wills. However, Mu'tazila believes

that God (orbida or permitJ aome things because they are intrinsically good or bad.

U- Supra 1L 21, at 77.


again. Shahrastani syas: "The Ismailiya ... say that divine ordinances,

the sunna and provisions of the shari'ah, such as those relating to

buying and selling, hiring, gifts, marriage, divorce, injury, retribution

and blood money: all these have their corresponding elements in the

universe, number corresponding to number and law corresponding

to law. Teligious codes are a world of sacred ordinances, and the

universe on its part is a religious code, physical and created. similarly

letters and wnrds in their structure are like forms and bodies in their

copositinn. Th~ relationship of single letters to words is like that

pur~ t'kmcnts to composite bodies. Every letter has its counterpart

in tht' mnld. with its own individual nature thruogh which it

intlu~nct's minds".<25)

It should b~ noted that from now when we refer to shiite law, the

view of Ithna asharis is intended.

(Ill) the sources of shiite Law

The sources of Shiite Jaw are: the Qur'an, Sunna, Ijma' and

Wisdom.

(a) The Qur'an :

Like other muslims, Shiites believe that the first primary source of

Islamic law is the same the Qur'an which is in the hands of Sunnite

muslims. Thus, what we have said before from the Sunnis point of

25- Supra n. 17, at 167.


view about this source includes the Shiites' view as well.

(h) Sunna:

Shiites define Sunna as syaymg, practice, or approval of the

prophet and the Twelve Imams. They say according to the Qur'an all

muslims must obey the prophet<26) and take whatever he brought to

them and abstainfrom whatever he forbids them of.<27) For the

Qur'an says: "Nor does he say of his own desire. It is no less that

inspiration sent down to him". <28)

Shiism also believe that Imams are the family of the prophet; and

according to the Qur'an the family of the prophet are infallible,

because God says: "We intends to remove all sins from your family

and to purify them. There are several reports in Sunnite and Shiite

books that the prophet said my family (Ahlu '1-hayt) are Ali and my

daughter and their sons.<29)

In addition Shi'is resort to this tradition of the prophet (which has

been recorded by the Sunnite historians) that he said": "I leave

behind two things worthy of great esteem: the Book of God and my

progeny (Ahlu l'-bayt).<30)

26- See Qur'an: ch. 4:56. 27- See Qur'an: ch. 56:7.

28- Qur'an, ch. 53:3-4.

29- See Hakim Muhammad Taqp, Sunnal in Islamic Shari'ah, (Arabic), Bi'sat publications, Iran, 1982,

p. 35.

30- See for further and sufficient discussions on this issue, ibid, pp. 50-75.


Therefore, saying, practice, and approval of the twelve Imams are

as important as those of the prophet. For they are the messengers of

the messenger (the prophet).

(c) Jjma':

Shiism defines Ijma' as consensus of opinion of the Shiite jurists,

who lives in the same time, on one of the religious issues. The Shiite

jurists do not regard Ijma' as a source of Islamic law per se. They

regard Ijma' as an instrument for discovering Imam's opinion.

Unlike, the Sunnite jurists, the Shiite scholars believe that not

only the opinion of individual jurists should not be regarded as a

suouce of Islamic law, but also their consensus on Islamic issues

cannot change this ruie. For this consensus constitutes a collection of

different opinions which has been collected by other jurists.

Therefore, it is not possible to give credit to such consensus as the

same as we give to the Qur'an and Sunna. If we do so, it means we

enable some people to provide religious laws and other rules for

other people.

Some Shiite jurists suggest that Ijma' is a source of Islamic law

because when the uurists agreed on one issue of Islam, it means that

the twelfth Imam (the Hidden Imam) was one of these jurists but his

identity was unknown to the people and jurists. This view is called

the "sense approach".

Other suggest that the consensus of the jurists during the same

period is evidence that their consensus was according to the will of


God. Otherwise, Imam, who is the protector of Islamic Jaw,

undermined their consensus elegantly. This approach is called the

"elegance approach".

The third group of the shiite jurists believe that when all the

jurists who live in the same time agreed on a religious issue it must

be guessed that this consensus is based on sunna. For with regard to

the way of life of Islamic jurists, it is certain that they do not agree

on a matter which is not on the base of saying. practice, or approval

of the prophet or Imams. This view is called the "guess approach".

(d) Wisdom or intellectual reasoning:

The Shiite jurists do not regard "qiyas" (analogical reasoning) as <1

source of Islamic Jaw. They say that according to the Qur'an. it was

the devil (Satan) who used qiyas for the first time when he said to

God: "I am better than Adam because while Adam was created

from mud, you created me from fire ; and fire is hetter than mud".

Also, there are several reports from the p1ophet and the prophet

and the Imams of shi'ah that the foundation and structure of Islam

will he demolished. if the jurists act on the hase of quiyas and

There are, however. some shiite jurists. such as Muhaqqeq,

believe that if the reason of permission or fohidden of something has a

been expressed in the Qur'a n or Sunna. it may be permissable to

extend the rule to similar situations in which the same reason exists


by the way of analogy,C31)

Instead of the qiyas, the shiite jurists, have accepted 'Aql

(Wisdom) as a source of Islamic law. What they are meant by

"wisdom" is the instinct and natural ability gifted by God to human

which with its help man is able to understand religion and realised

goodness and indecency, virtue and vice. This instinct is a companion

and assistant for the religion. Form Islam point of view, while

religion is the outward messenger, wisdom is the inward messenger.

Hence, Shiism is on opinion that the Islamic jurists can perceive

rules and injunctions of God with the assistance of wisdom, even

though they are not specifically mentioned or explained in the

Qur'an and sunna, provided that such wisdom is free from any taint

and personal desire.

Two kinds of rule can be perceived by wisdom. The rules which

wisdom per se understands that some acts are good and should be

done, such as obeying God, being just and behaving justly among

other peopl.e, or perceives some acts which should not be done by

men, such as killing, oppressing other people and plundering. In fact

these sJrts of rules can be discovered by wisdom without resorting to

the religion. Such rules are called Mustaqillat AI-Aqliyah

(independent perception of wisdom).

31-See Rishad Muhammad, Usul Fiqh (The foundation of Islamic Jurisprudence) (in persian), Eqbal

Publications, Iran, P. 278.


There are some rules that wisdom can understand by resorting to

the religion; such as realisation that people must obey the prophet

because he is the messenger of God. Another example in this

respect is where a jurist has knowledge that something must be done

obligatory, but to do this obligation some preliminary and

introductory actions has been provided by the religion which he does

not know that whether they are obligatory or not. Here, with the

assistance of the rule Jay dawn by wisdom that the preliminary steps

of every obligatory actions are obligatory too, he may find out the

answer. Nevertheless, as was said before, such perception of wisdom

must be supported by Islam. In other words, if Islam does not

support such intellectual reasoning, the jurist are not a llowed to use

them. That is the reason why they are called Qairu Mustaqillat

AI-Aqliyah (non-independent perception of wisdom).

As a source of Islamic Jaw, the rules provided by the

non-independent perception of wisdom, are more in use than the

rules deduced by its independent perception.

CHAPTER THREE: IRANIAN lAW: HISTORY AND SOURCES

Iran is a country of 1,648,000 sq Km (627,000 square miles)P2) It

JS bounded on the north by the Caspian sea and Ghafghaz and

32- It is over love tim<.'!. the sil <' o f Italy a nd Bntain.


Turkmanistan. Eastern neighbours of Iran are Afghanistan and

Pakistan. On the west, it has common land borders with Iraq and

Turkey; and on its south, the persian Gulf and Oman sea are

situated. The langauge of Iranian people is persian, and the great

majority of them are shiits. At present, the government in Iran is

Islamic Republic and over fifty millions people live in this country.

(I) History of Iranian law

It is said that the early history of Iran started when Aryans

migrated to the present area of Iran about four thousand years ago

and Medes (a tribe of Aryans) established their empire there.

Although we do not intend to talk about the origin of Iranian history,

the history of law in ancient Iran, particulary in the time of three

great dynasties: Achaemenid, Ashkanian, and Sassanian, before the

entrance of Islam in Iran, is mentionable. Therefore, we begin our

brief examination from Cyrus, the founder of Achaemenid dynasty,

who was monarch of the greatest empire yet known to history.

(i) Ancient Iranian law

According to the historians, in Achaemenid dynasty (550 to 330

BC) the king was the law giver. people on that time believed in

several gods' and the important god was "Ahura-Mazda" (Wise

Lord). Of course, when Zoroaster (the prophet of the ancient Iran)

appeared from northwest of Iran, he accepted Ahura-Mazda and

being king was their natural right. Therefore, all legislative, executive


and judicial powers were in the hands of the kings. Cyrus also

believed that he was selected by Ahura-Mazda to be a law-giver and

perform justice ar..tong his nation and other nations which were

defeated by hinv33)

Darius was another King of Achaemenid who announced (in 520

BC) that: "By the favour of Ahuramazda, these lands walked •

according to my law; as was to them by me commanded, so they

did".<34) History shows that he provided a preceding lawbook and

attempted to establish unique legal principles for the whole country.

Nevertheless, Olmstead after comparing the laws provided by

Darius with Hammurabi (a Babylonian King) infers that: "There can

no longer be any reasonable doubt that Darius and his legal advisors

had before them an actual copy of Hammurabi~s book".(35)

Ashkanian was ruled in Iran for near five centuries (247 BC to

224 AD).

However, as the central government was not so powerful to control a

big country like Iran, governors of different provinces laid down law

and order on the bases of what they have received from their

ancestors. Thus, they did not follow the laws provided by

Achaemenid; and, consequuently, there were not fixed and unique

33- See Ahmadi Ashraf. Law and Judiciary in the ancient persian Empire (in persian), published by

ministry of culture and An, 1967, P. 32.

34- Quoted from Llmsteda A. T., History of The persian Empire, The University of Chicago press,

1948, P. 119. '35- Ibid, PP. 127-128.

Le~al Views - No. ei~ht/ 30

legal principles in the contry.

Although the history of Ashkanian is clouded, it is said that there

was a sort of constitution that its principles were binding to all. This

basic principles confined the power of kings. In addition, on the base

of some of these principles two houses (the house of royal family

and the house of learned men) were established that kings were

obliged to consult with them in any important decisions. These

houses had power to rP-move the king form his kingdom; and they

used this power several times. <36)

In the period of Sassanian (226-652 AD), kings were the chief of

judges; and the judges were selected from clergy men and priests.<37)

Nevertheless, kings were no longer the law-givers like the kings of

two previous dynasties.

Legal principles were based on the Avesta (*the Holy book of

Zoroastrianism) and other books which have been written of the

interpretation of the Avesta. The Avesta was divided into several

books, but seven these books together are coiled "datic" (Books on

laws). At present, only one book of these seven books was remained.

This book is called "Videvdat" (Anti-demonic Law). The extract of

Videvdat was brought in the book, Dinkard, which was written in the

36· See Ahmadi, supra n. 33,PP. 80-83.

37- See Rawandi Murtaza , The Social History of Iran (in persian), 3rd ed., the Amir Kabir Publisher,

1976, Vol. I , p.684.


ninth century.<38) Also, there was a book on civil law under the title

"Matihan Hezar Dato.;tan" (Reports of a thousand legal

decisions).<39) This bo~k includes some subjects of property law,

family law, contract iaw, and personal law.

However, sin..:e the first pages and some of final pages are

missing, there is no idea about its writer.

(ii) Iranian law after the Islamic conquest

While in the last days of the Sassanian dynasty every princes and

aristocrats were involved in interanl wars because of weakness of the

central government, an army of Umar (the second Caliph)

conquered Iran and annihilated the Sassanian reign in 652 AD.

Iranian people who were tired of internal wars and class

discrimination accepted Islam as therir religion very quickly.

Soon after the emergence of the Sunni schools, most Iranian

followed one of these school. For a long period the Sunni schools

were prevailed until the rise of the Safavid dynasty in the sixteenth

centruy. It was Shah Isma'il (the founder of the Safavid dynasty) who

made shi'ah as the official religion of Iran. From that time Iran

became the centre of Shiism.

In this relation watt says: "A great change was brought about in

1501 when a leader, later known as Shah Isma'il, conquered much of

38- See Saket M H, Judicial Institution (in Persi<~n), published hy Astll n quds Rll7.avi, 1986, P. 22-23.

39- Some parts of this book was translllted to Rnglish by west.


Iran and made lmamism [Shiism} the official religion. This led

gradually to a concentration of Imamism in Iran, apart from the

large body in Iraq .... Iran also became a centre for Imamite

scholarship, and there were developments in the fields of law and

theology. The dynasty founded by Shah Isma'il, the Safavids,

continued to rule Iran until 1722, and by that date Imamism was well

established" .<40)

In the Safavids dynasty there was not a clear division between the

judicial and executiove functions of the government. Therefore,

"shah" (King) was the head of the justice administration too. The

Kings of the Safavids attempted to rule in accordance withe Islamic

law (Shari'ah). For they heavily relied on the opinion (fatwa) of

Shiite scholars.

However, little by little in the latter dynasties such as Afshar,

Zand and Qajar the common law (Qanun i Urt) was recognised.

Accordingly, a dual judicial system was created. Usually, the urf law

governed in criminal cases and used by the local and central

government, and the Shari'ah law in commercial and personal cases

and administrated by 'ulama' (clergy) in the religious court (the shar'

court).

Prior 1871, the governor general of each province of Ir~n

40· Watt William Mantgomecy. Islamic Fundamentalism and Moderinity, R outledge, London, 1988, P.

127.


employed the urf law in different cases on the base of the specific

custom and the precedents of the province.

It is said that the first attempt in providingy a unified code of urf

law was made by Mirza Husayn Khan, who was appointed as the

minister of justice, pensions, and religious endowments of Qajar, in

1870. In 1871, he issued an ordinance concerining the division of

High Court of Justice to four specialized courts. One of these court

was the legislative court that its task was to issue regulations which

applicable to every cases and to all classes. By this attempt, he tried

to establish a sort of control for the government not only over the

urf courts but also the Shar' courts.<41)

Nevertheless, the main steps toward the administration of court of

laws was taken after the constitutional revolution which was against

the intervention of foreign countries such as Great Britain and

Russia in 1906.

In this revolution, ulama and nationalists came together against

the government and its foreign policies. According to Browne, 'it was

when they became convinced that their country was despised abroad

that their interests were betrayed for a vile price, and their religion

and their independent existence as a nation were alike threatened

with destruction, that began to demand a share in government of of

41- See for funher discussions, Nashat Guity, The Origins of Modem Reform in Iran, 1870-80,

Uoiverlity of Dlinois Press, Urbana, 1982, P. 42-54.


their country'.(42) Of course, there were other reasons behind the

revolution, but we are not intending to open the discussion· on this

matter.

The revolution led to the making a constitution (which was copied

from Franco-Belgian models) and the establishment of the

parliament which was called the National consultative Assembly

(Majlis Shora-ye Milli). Some members of the Majlis were very

active to westernise the legal system and codify the laws. Hence, in

1912 the Act of "The principles of the Organization of Justice" was

passed by the parliament (this Act, of Course, was in comformity

with the Supplementary Fundamental Law of 1907)

Then in the same year, 1913 the parliament restricted the power

of Shari'ah courts by passing "the principles of Civil Procedure" Act.

According to this law, shari'ah courts were confined, for example.

to hear the matters for which provision is made in Islamic law: and

dispute related to marriage and divorce, or dispute in relation to

bankruptcy (itlas).

Nonetheless, until 1925, the power and influence of Islamic jurists

did .not allow the government to enforce the Penal Code passed hy

the Majlis in 1918.

When Riza shah (1925-1941) became the first king of the pahlavi

dynasty in Iran, he focused all his powers to establish a dictatorship

42- Browne Edward, 'The persian Revolution of 1905-1909,1910, P. xix.


government and to repress the power of ulama. "The intluence of

the clergy" Sir Wilson wrote "had diminished, and the government

recognised the immediate need for modernising its law".<43)

Dawar, the Minister of Justice, Prepared several new Jaws; such

as the Commercial Code, which the whole of it approved by the

parliament m 1939. Also, an important act was provided by the

parliament m the Dawar's period, which was the "Registration of

properties a nd Documents "Act. According to this Act a department

under the control of the Ministry of Justice was established to

register a ll immovable properties and documents.

In addition, a series of enactments have been passed with the

object of regulating national and foreign trade ( I ~2K), protection of

trademark ( 1931 ). and other subjects such as civil proct:Jure (the

Code of Civil procedure of 1939).

After Riza Shah. his son Muhammad Riza Shah continued the

way of his father in abounding the religious law. Several acts in

va rious subjects were copied from French law anu other European

countries' laws. Some of these laws. for example. are: the Foreign

Investment Act ( 1960).

This point should bd made that despite this westernisation of

Iranian law, family law, the law on inheritance and in fact most

provisions of the Civil Code were based on the Shiite law.

43- Sir Arnold T. Wilson. Persia. l·.rncM lknn Ltd. London. 1932. 1'. 224.


(iii) Iranian law after the Islamic revolution of 1979

When the Islamic revolution succeed in 1979, the first step has

been taken by the people and the revolutionary leaders was to make

a new constitution. Therefore, the new constitution was written in

the same year.<44) According to principle 4 of the new constitution all

civil, penal, financial, economic, administrative, military, and political

laws, e tc. must be based on the Islamic standards. This principle

does not say that all western laws must be abolished, but lies stress

on this matter tha t any law which is inconsistent with the Islamic

standard are unenforceable and the new government is not allowed

to pass such laws. Thus, severa l laws which have been copied from

the laws of certa in E uropean countries still are in power and

employed by the courts.

What this pri nciple rejects impliedly JS the idea that every things

comes from west is good. In other words, it rejects the notion which

is called "Westoxication", but those laws which are consistent with

Islam may be adopted by the government. We have discussed earlier

tha t how Islamic rules are divided into immutable and changeable

rules. In relation to the changeable rules such use of foreign laws are

pe rmissible. <45)

The main change m Iranian law was on the law of punishment

44- The m:w Constitution was written by the '"Experts' Assembly" (Majlis-e Khubrigan).

4~- See the present text, P. 4.


which was totally changed in 1982. A1so a considerable number of

the provision of hte penal procedure Code and some provisions of

the Civil procedure Code became unenforceable. Mew amendment

was made in the Civil code; and the sturcture of the justice

administration was subject to a serious changes.

(II) The sources of Iranian law

At present, the sources of Iranian law are: Shiite law, the

Constitution of Iran, the decisions of the Nation's Expediency

Council, the statutes, custom (uri), and judicial decisions.

(i) Shiite law

Our examination of the history of Iranian law has revealed that

Shiite law was an important source of Iranian law before and after

the revolution fo 1979. However, Shiite law became the first primary

source of Iranian law after the revolution.

As has been mentioned, according to principle 4 of the

Constitution of Iran all laws, in various subjects, must be based on

the Islamic standard.

To maintain the tenets and precepts of Islam and the

Constitutional law with the view to ensuring that the parliamentary

enactments are not contrary to them, a council entitled 11Council of

Guardians.. was formed in accordance with Principle 91 of thfl


Constitution.

This council consits of six Islamic jurists, who must be just and

aware of the times, selected by the leader of Iran: and six lawyers in

different branches of law, nominated by the head of the judiciary

power.

Nevertheless, it is the task of the Council's jurists, and not the

lawyers of the Council of Guardians, to decide whether an act or

legislation of the Parliament is contrary to Islamic rules or not.

According to Principle 96. the jurists of the Council of Guardians

must decide hy the majority votes on whether or not the enactment

of the parliament reconcile with the tenets of Islam.

The existemce of such a council always guaranties that the

legislations of the parliament are based on criteria of Islamic law.

Although it cannot be understood from principle 91 that whether

the power of the Cunei! can be retroactive on the past legislation

(passed hy the parliament in the pahlave period), the Council used

its power, for example, to make some provision of the Civil

Procedure Code ineffective and unenforceable.

Since the Council is the guardian of constitution, it is the official

interpreter of the principles of the Constitution law. any

interpretation of the Constitutional law must be approved wil:h the

votes of three fourth of members of the Council.<46) Therefore, its

4<•- Sec Principle 9R of the Iranian Constitution.

An Examination of .. ./39

interpretation of the Constitution almost unchallengeable .

(ii) The Constitutional law

The new Constitution of Iran composes 177 principles a nd forteen

chapters. It was written in order to rea lise the ideological goals of

the Islamic revolution and to establish the Islamic justice in Iran.<-t 7)

Therefore like o ther countries with constitutions, one of the main

so urces of Iranian law is the Constitutional law.

The parliament must not pass any ligislation which is contrary to

the Constitution. The Council of Guardians has a duty to safeguard

the Constitution hy rejecting such legislation. That is the reason why

the parliament, in accordance with principle 93. has no legal val idity

without the presence of the Council of Guardians.

Whereas in deciding whether a legislation is contrary with Islamic

l:tw requires the majority vote of the six jurists. as far as the

Constitu tio nal law is concerned such reconciiation must he decided

upon by the m;1jority of all members (t he j urists ans lawyers) of the

Counci l o f G u;1rdian.

(iii) The decisions of the Nation's Expediency Council

The commands of the Leader of Iran as the Wa li-ye Faqiht-tX) and

47-·n,c nL"W const itution was rL"ViscJ and amended hy the "Con~titutinnal RL-vision C'ounc.:il" in I'>XIJ.

ami approved hy a rl·teremlum.

4X· Wli ·ye l'a<tih ( lhe Supc111<' .lurb lll ' .\ulht>nly) "a f'l'I'M•n \\ IH• pr<'Va il~ the thrl'C ~cparatnl powcr.<

of the country (thc lq.:i , lall\'l'. <'X<XII II\'l', and jmlil'lal powcr-,.. llc mu~t hl' a "mujtalml" (Thc 1"-''"'"11


the Suprme Commander of all armed forces in certain issue directly

must be followed; such as where he issues decrees for national

referenda or where he makes a judgement in order to resolve

differences between the three wings of the armed forces (Ground

Forces, Air Force and Navy) and regulars their relation.

Nevertheless, certain important powers of the Leader must be

exercised through a council, called the "Nation's Expediency

Council". The decisions of this council are formeed another source

of Iranian law.

The members of this council (both permanent and changeable)

are appointed by the Leader. The President, head of the judiciary

power, the speaker of the parliament, and the jurists of the Council

of Gardians, are some of the members who constitute the Council.

According to Principle 110 (part 8) this council resolves the

problems, which cannot be solved by conventional methods.

Therfore, ii there is a problem, which cannot be solved, for example.

by the enactment of the parliament, the decision of the Council will

settle the problem, provided that the Leader confirms the decision.

To illustrate the matter, we can mention the decision of the Council

on the goodwill of business (the decision of 15/1/199] ), when the

J.i ......., j l .,.,, , who has the ability of 'ijtihad' and can exercise his reasoning powers on lin: ha~ t~

of the principle of Islamic law to arrive at a certain decision concerning a given problem). The ordc~

and commands of the Wali-ye Fqih, in certain circumstances, must be fo llowed hy the othe r mujtahtds

who may be in higher ranks than him.


dispute on the matter that how the goodwill should be dealt was not

solved by ronventional method.

However, the main task of the Nation's Expediency Council is

defined in Principle 112:

"Upon the order of the Leader, the Nation's Expediency shall meet

at any time the Council of Guardians a proposed bill of the Islamic

Concultive Assembly to be against the principles of Islamic standard

and the Constitution, and the Assembly is unable to meet the

expectations of the Guardian Council ... ".

For example, when the Council of Guardians amended a

proposed hill of the parliament on unutilized lands and the

parliament was unable to meet the expectation of the Council, the

Nation 's Expediency Council , in its decision of 16/7/1988, in a single

artic.:le resolved the problem.

The decision of the Nation's Expediency Council is binding on all

three ruling powers of the country.

(iv) Statutes

Statutes and regulations are other sources of Iranian law. they are

always published in an official gazette, called Rousnamehyeh Rasmi.

They also are published in annual collections of statutes and

regulations.

Any act passed by the parliament will bind itself and the two

other ruling powers.


(v) Urf or custom

Urf is an Arabic word and means "recognition", but in legal

terminology the definition of urf equivalent to the definition of

"custom".<4<)> It is classified in different categories: such as general

and particular, pracitcal and literal.

Urf and custom has been recognised as a source of Irania n law

and some statutes clearly refer to urf as a source of Jaw.

For example, Article 224 of the Civil code provides: "Terms and

pharases used in a contract must be construed to its customary

meaning". Also, Article 3 of the Civil Procedure Code Jay downs that

the courts are obliged to make their decisions based on the

established custom in circumstances where the statutory Jaw is not

clear or contradicted with other provisions, or where there is lacuna.

Urf in Islamic (Shiite) law

Although we have mentioned ahove some provistions on the

recognition of urf, as a source of law which passed hy the

parliament in the Pahlavi dynasty, Shiite Jaw also accept this

49- Black defmcs c ustom as ·,. usage or practice of the people. which, hy common adoption and

acqu1ocencc. and long and unvarymg hahll. ha~ hccomc compul~ory. and ha~ acquired the force o l a

Llw With re\pcct to the place or ~UhJcLI -mattcr to wh1ch it related'. (Sec lllack llcnry C .. lllack\ Law

Dictionary. WeM l'uhhsh1n~ ( o .. 11\i\. I 'J~1 .


recognition.<50) Even when there is a contlict between urf and qiyas,

the shiite jurists prefer urf rather than qiyas J'il) For they think

preferring a qiyas which is contrary with an established custom,

creates certain problems in the society.

For instance, the goodwill of business was recognised by urf as a

right which can be evaluated by money and sold. This institution has

not been recognised by Islamic law before, but the shiite jurists

accepted it and enter into Islamic law.

The writers of the book "Major Legal Systems in the World

Today" explain the role of custom in Islamic law as follows:

"While custom is not part of fikh , this does not mean that law

condemns it in any way. It looks upon custom very much as some

western laws regard the clause of amiable composition in an

arbitration agreement or powers of conciliation or equity someimes

exercised by a judge".(52)

Then, they mention how Islamic law recogmse, for example,

'customs dealing with the amount and forms of payment of dowries,

those on the use of running water shared by landowners, and a

number of commercial usages' .<53>

Needless to say, custom cannot permit what Islamic law has

forbidden.

'ifl- lJrl 1~ n.:cogni~ed hy the ll;mali and Maliki S~:huul, hut reje<:tnl hy the Shali"i ~dwul.

'i 1- The ll.o1mli ~d111ol aiM• prev;ub uri over qiya~.

'i2- Supra n . 7. at 411. 'i'l- (hid .


(vi) Legal precedents

The courts are obliged to make their decisions on the basis of the

statutory Jaw, they cannot, therfore, rely on the other courts

decisions. According to Articl 5 of the Civil Procedure Code, judges

must make their decisions in accordance with the Statutory law; and

they are not allowed to elaborate general rules. Nevertheless, the

decisions of Supreme court has, sometimes, influences on the

decisions of the lower courts.

Unfortunately, since the Supreme Court's decisions are not

published by the Ministry of Justice, it is very difficult to have access

to such decisions. Consequently, their effects are not so great.

However, when there is a conflict among different divisions of the

Supreme Court on a similar issue, the General Public Prosecutor

may request the full bench of the court (which is called the general

Council of the Supreme court) to decide on the issue. According to

the 11Unification of Judicial decisions11 Act of 1911, the decision voted

by the majority will bind all divisions of the Supreme court as well as

the lower courts. This decision which is called 11the decision for

unification of legal precedent11 is published in the official GAzette of

Iran and several public and private collections. After the revolution

the decision for unification of legal precedent was used by the

General Council of the supreme court repeatedly. Thus, such a

decision must, definitely, he regarded a slurce of law in Iran.


CONCLUSIONS

Our study of Iranian Jaw revealed the fact that atter the entrance

of Islam in Iran, the Jaw of this country always was under the

influences of !:;Iamie law. Sometimes these intluences were very

powerful and sometimes not so strong. However, by virtue of its

peculiar characteristics, Islamic Law has a very deep root in Iranian

law, which it is almost impossible, if we do not say certainly

impossible, to eradicate this root, unless the Iranian people change

their religion.

After the revolution of 1979 and the establishment of the present

regime, the impact of Islamic Jaw has reached to its highest point.

The government tries by establishing some new institutions, such as

the Nation's Expediency Council, to pave the way of the

enforcement of Islamic law in all aspects. Nevertheless, it does not

prevent the legislature from accepting the foreign or international

laws, provided that they are not inharmonious and inconsistent with

the Islamic standards.