An Introduction to Islamic Law (24 page)

Regulated by French codes and presided over by a majority of European judges nominated by their respective countries, the Mixed Courts in effect constituted a legal and economic regime by which Egypt’s financial and, indeed, political life was controlled. Producing “some forty thousand written opinions,” and rendering the “Egyptian government . . . subject to their jurisdiction and their judgments,” there was “practically no litigation of any large or general importance which [was] not attracted to their jurisdiction.”
⁷
And as if to increase the alienation of the native Shari
a courts and their users, the Mixed Courts, which quickly appropriated most of the spheres of law, began to require advocacy as a prerequisite for filing suits before them. In 1877, when the
Mixed Bar Association held its first meeting, it boasted seventy-nine members, none of whom was an Egyptian. On the other hand, the 1880
Code of Procedure came to confine the Shari
a courts’ jurisdiction to matters of personal status, inheritance,
waqf
, gifts and crime. By 1896, the latter jurisdiction had been removed from their competence, further limiting their sphere of action to family law, broadly so defined. Furthermore, the Shari
a courts were ordered to report all their transactions pertaining to real property to the Mixed Courts of first instance, although the latter were not obliged to reciprocate.

Aside from the increasingly limited jurisdiction of the Shari
a courts, the Mixed Courts extended their sway, and managed to unify the legal system like never before. This fierce tendency to
centralize was in the interests of both the
Khedive and the foreign powers. Ironically, the machinery and tools of the modern
nation-state were called upon by both the colonizers and the colonized, for through these modern governing instruments the colonizers aimed to colonize, whereas the colonized wanted, at most, to decolonize and, at least, to escape colonization unscathed. Yet, strengthening the Mixed Courts was distinctly more in the interests of the Powers than in those of the Khedive. Their growing exclusivity as judicial organs, plus the powers conferred upon their magistrates in terms of spectacular salaries and life-appointments, were all designed to render them more conducive to serving European economic interests. With a majority of European judges applying “free-market” oriented codes, the harnessing of Egypt as an open market became less difficult to accomplish.

As with many colonial projects, the Mixed Courts became a bone of contention among the competing European powers. Until 1882,
Britain refused to expand its jurisdiction or any aspect of its influence lest its colonialist competitors seize such an opportunity to shift the balance of power. But once Britain occupied Egypt after crushing the
Urabi revolt of 1882, it felt secure enough to permit the Egyptian government to create the so-called
national courts. When the
Council of Ministers began deliberating the creation of these courts, it was thought that, by accepting some European presence on the benches of these new courts, it would be possible to bring a quicker end to the nationally abhorred Mixed Courts. And so it was determined that the national courts would include one foreign judge at each court of first instance and two foreign judges in each court of appeal. The new court system began work in March 1884, with only one
court of appeal in
Cairo (not to be reinforced until 1925, when a sister court was created in
Asyut). In order to eliminate diversity – inconsistent with the aims and nature of the modern state system – the
Court of Cassation was abolished, thereby limiting the new system to two tiers or levels, a constitution also consistent with the Mixed Courts’ structure, on which the national courts was modeled. Yet, the new courts also adopted the substantive laws that were applied in the Mixed Courts (and reissued in 1883), save for the code of preliminary enquiry and the penal code, which were to be drafted in accordance with the demands of local conditions
. Other codes, including a new commercial code, were compiled by European lawyers who wrote them first in the
French language, whence they were translated into Arabic
.

On the other hand, the Shari
a and its courts were progressively marginalized, not through changing Islamic law itself, but rather by means of procedural amendments which deprived it of application. For example, in a series of procedural restrictions starting in the 1870s and culminating in 1911, the courts were expressly precluded from hearing litigation in the absence of written evidence. The systematic ousting of
oral testimony, the cornerstone of the Shari
a courts’ operation, was followed by a reconstituted law of procedure that reflected a written – in contradistinction to oral – tradition that served the state’s purpose of counting, accounting, surveillance and control. The marginalization of the Shari
a was thus itself an act not only of dismantling but also of building a system of courts and law that functioned to serve the state
.

Before we discuss the legal reforms in Iran, it is essential to say a few things about
Shi
i jurisprudence, which was introduced by the
Safavid dynasty
(r. 1501–1732) into Iran at the beginning of the sixteenth century.
Twelver-Shi
i jurisprudence came to differ from its
Sunni counterpart on a number of essential points, three of which are important to us here. The first relates to the divine appointment of the
IMAMATE
, which begins with the fundamental assumption that there exists a qualitative dissimilarity between human and divine qualities. Man’s intelligence is ultimately defective, with the implication that his understanding of the law is incomplete. This premise entailed that God is bound by duty to make legal obligations known to the human mind. As a means of communicating His signs that embody His Will and Law, God chose a number of persons possessed of superior qualities and made them
Prophets and Imams. The Imam is neither a second-class Prophet nor a deputy, as the early
Sunnite caliphs were conceived by the Sunnis
. He is a substitute for the Prophet, taking on the tasks and functions of the Prophet in his absence.

The second premise takes the Imam to be a sinless, infallible and perfect being. By virtue of having been chosen as an Imam, he combines qualities that are superior to any other human living in his age. If it were not for the convention of religious texts, the Imam would be no less a prophet than the
Prophet Muhammad himself. As one distinguished
Shi
i jurist observed, “it is divine law that forbade our Imams being given the name of prophecy, not reason.”
⁸
The Twelver-Shi
i Imams are thus not subordinate to the Prophet Muhammad but rather his peers. Indeed, whereas he is deemed to be a fallible human, they are deemed immune from error. On the other hand, the Prophet
was an instrument of revelation, whereas none of the Imams was chosen for this task. But since their knowledge is infallible, their ability to convey the divine Law to their followers has the status of certitude. (This divine empowerment of the Imams must be kept in mind when we turn later to the legal and political developments in modern Iran, for the elevated status accorded the Imam appears to run counter to the claim that the
master-jurist can replace and fully represent the Imam in the latter’s absence. In fact, the Imams did not delegate their powers to anyone, and were reported to have condemned as fraudulent any political governance in their name
.)

The third premise was constituted by historical events. Around the year 874, the twelfth Imam disappeared, and since then he has been presumed to be in hiding as a result of the persecution he suffered. Yet, while hiding, he continues to bear the knowledge of law in its best,
infallible and most perfect form. In many ways, he in effect takes on a divine status, since – according to a number of Twelver-Shi
i jurists – there can be no access to God’s mind without resort to the Imam. The Imam thus represents for Twelver-Shi
ism the locus of the law, if not its source. At the end of time, the Imam will reappear, implementing his just law with full force, but until then several functions that the Imams had fulfilled must somehow be discharged, and the jurist-in-charge was the one to do so.

Now, for various reasons to do with political legitimacy, the
Qajars of Iran invested heavily in the religious institution, dedicating much property in the way of
waqf
. This gesture, however, failed to coopt the Twelver-Shi
i ulama into the power structures of the ruling dynasty. As it happened, by the time the Qajars established their rule, Twelver-Shi
ism had come to reassert itself with renewed vigor. Thus, by the time of European encroachment, the religious establishment and its personnel (recipients of major endowments and religious taxes) stood in a more powerful position
vis-à-vis
the political establishment than had their pre-sixteenth-century
Sunni predecessors, and most certainly their Ottoman counterparts (whose power was manifestly dependent on the political sovereign).

In part as a result of the resistance mounted by the Shi
i legists, most reform plans initiated by the
Qajars never materialized on any large scale. Instead, changes were piecemeal, initially reflected in such acts as sending, around 1828, students to Europe in order to follow courses in a variety of new disciplines. Western education was accompanied by a stress on translating European works into Farsi. But such reform proposals as the one drafted in 1851 – and modeled after the 1839 Ottoman
Gülhane Decree – categorically failed. Failure also attended the series of reforms begun in 1858, when the newly established
Council of Ministers set up provincial departments of justice that were aimed at centralizing the judiciary.

Another serious plan was drafted in 1871, suggesting, among other things, the creation of a system of Western-style, hierarchical courts with special codes to be applied in them. Yet not only these but all other attempts at reform failed, and there was little, if anything, accomplished by 1906. Even the
National Consultative Assembly, established during that same year, could produce no more than a
Basic Law that affirmed the supremacy of the Shari
a, and, for the purpose of ensuring this supremacy, a
five-
MULLAH
committee was formed. However, the Basic Law did introduce the idea of the separation of powers, and granted judges life tenure in an effort to enhance the concept of the rule of law
.