The judicial system of Iran has the dubious distinction of being a mass of structural, legal, conceptual, and logical contradictions. These contradictions have made the judicial process a thorn in the side of the Iranian people, as well as one of the most difficult theoretical problems for Shi`a thinkers in the Islamic Republic.

The debilitating conflicts and incongruities of Iran’s judicial system are readily apparent when perusing the constitution of the Islamic Republic or lining up the shari’a laws (obligatory religious laws of divine provenance) with orfi customary and civil laws (non-religious laws). Anyone who wishes to see the most obvious self-contradicting principles of the constitution—which in turn, conflicts with the Universal Declaration of Human Rights and human rights norms—need look no further than the recorded rulings of the judiciary. Just a few examples will suffice to show the depth of the crisis in which the Iranian judiciary finds itself.

The Iranian courts demonstrate a biased, partial, and inhumane judicial system by issuing self-contradictory rulings that often conflict with basic human rights. In the last three decades, the Iranian judicial system has—even in the period when religious reformers held the executive and the legislative branches under their control and were able to work towards changing the laws—earned a reputation around the world for carrying out brutal sentences such as mass executions, executions of political prisoners without trial, ta`zir (legally sanctioned torture in order to extort confessions), execution of children and adolescents, street executions, sangsar (stoning to death), whipping, amputation of limbs, and official, legalized discrimination against women and religious minorities.

Some of the religious reformers and the present critics of the Islamic Republic, have held judicial, political, and military posts and were involved with the National Security Council in planning the violent suppression of political groups, the murders of Baha’is in some cities—including Shiraz—and the execution of political prisoners. Those same religious reformers, while claiming to be advocates of democracy, remain silent about their past or try to downplay it under the guise of preserving the revolution. Nevertheless, the theoretical underpinnings combined with the manifestation of the judicial system in Iran and Islam is too well-integrated, complicated, and chaotic to be able to offer a comprehensive picture of it in any simple way. Contradictions in judgment become particularly complicated among Shia`s. They regard ijtihad (logical interpretation, paraphrase and inference done by the marja‘ al-taqlid, the leading clerics who are considered “sources of emulation” within the framework of the Koran and principles of Islam) as one of the resources of shari’a (Muslim religious law) and try to relate shari’a to the needs of the present day through various interpretations.

Moreover, the laws and structure of the judicial system in Iran are a composite of religious and customary laws. The religious laws themselves are an unintelligible mixture of reform and traditionalist interpretations. Orfi laws in Iran are sometimes modeled after liberal Western and European societies and, at other times, wear the brand of a traditional Iranian dictatorship.

This contradiction is solidly entrenched in the structure, policy, and bureaucracy of the Iranian judicial system. For example, in Iranian courts the accused have the right to a lawyer, but it is the judge who determines whether the lawyers are competent or not. The lawyer only appears in court and is not present during the interrogation of his client. During the trial the court judge acts as the interrogator, examining magistrate, and prosecutor at the same time.

Three decades of accumulated practical experience with Islam in power, clearly indicates the influence of faqihs (jurists who are recognized as leaders in Iran), who hold a monopoly on the management of society in the era of globalization. The faqihs give priority to the protection of Islamic Rule over other religious principles. For the sake of preserving the regime, they invent new interpretations of shari’a. This situation has made the judicial process more complicated and has turned it into a set of paralyzing disparities and unanswerable questions.

Some of the discrepancies in judgment between Islam and the judicial system in Iran are rooted in the very concepts, principles, and their sources of origin such as shari’a and the Koran. Other discrepancies stem from the early Islamic “golden age,” a period of cultural growth that began in the middle of the 9^th century and ended in 1256.

Islam is a religion that claims universality. Although an important principle of Islam, “equality of all human beings before Allah,” ignores ethnic, racial, and other differences, it also means that all human beings must obey the judgment and the laws of Allah. The double connotation of this principle is also inherent in the word “Islam” itself, which is associated with “peace” between human beings and the Creator, and also with “surrender” of humans to the decree of Allah. The Koran, unlike the Christian Gospels, is not an account, by humans, of religious experience of the word of God. The Koran is the direct word of God. It is not limited to regulating the relation of the individual with the Creator and it provides a clear and concise set of laws that dictate various areas of human life on earth.

Some religious reformers state that “the laws of Allah are absolute; however, human interpretation of these laws are relative and contingent on time and place.” Although this statement may soften the rigidity of fundamentalist interpretations, it does not change the essential idea that the absoluteness of the laws of Allah must be enforced at any cost. Koranic laws form the basis for a significant portion of today’s Iranian laws and the judiciary derives inspiration from them not only for the sphere of law but also for its structure. The Koran is not limited to matters pertaining to individual religious experience. It also contains laws made for the regulation of human relations and earthly life. It is a rich, but inconsistent, source for the judicial laws of Iran.

Although these laws and policies are subject to different interpretations—due to the superiority of the absolute, infallible, and inescapable decree of Allah as compared to the relative, fallible, and revocable decision of humans—they do not need to be passed in parliament or approved by any ruler. They derive their legitimacy not from a majority vote, but from a divine source. No institution, elected or appointed, has the right to repeal these laws.

The second important source for Islamic laws is extracted from the Prophet Muhammad’s sunnah, which goes back to the early history of Islam, the golden age of the Prophet’s rule, and the first four caliphs. Muhammad was not only the intermediary between human beings and Allah, but he also acted as a judge and political ruler. The judicial decisions he made are recorded in the hadiths (accounts of the Prophets’ behavior and actions). The Prophet is considered infallible by Muslims and his actions, speech, and decisions are exempt from error.

Forced Deviation of Shi`a faqihs from Holy Principles

The Koran and sunnah are eternal for Muslims and must always be enforced. Of course, different schools of Islamic thought have varying interpretations of the Koranic laws and the Prophets judicial opinions. However, in recent years, some lawmakers have treated laws specified in the Koran and sunnah as contingent upon time and place, limiting their range of application to only the early age of Islam. These include matters such as cutting off the hands of thieves, stoning “adulterous” men and women to death, executing apostates and those who have blasphemed against the Prophet, considering a woman as worth half a man in affairs such as inheritance and court testimony, and depriving women the opportunity of becoming a judge or raising their own children after a divorce. But from the perspective of many Islamic schools of thought, including the reformist-minded, the Islamic religious experiences are not limited an individual’s spiritual experience. The Koran and sunnah regulate significant sections of life as well. This particular concept, however contradictory, is the basis for defining the judicial system in the Iranian constitution. judicial independence, a concept derived from Western liberalism, strikes a discordant note with the Koran and the Prophet Muhammad’s sunnah. The Koran empowers the “Islamic Ruler” with the authority to administer social, judicial, and political affairs and has determined divine law to be the foundation for the management of all areas of life. Muhammad had placed himself at the center of legislative, executive, and judiciary systems in the government. Sunni caliphs and Shi`a imams, the Prophet’s successors, followed the same practice.

Unlike the Christian Gospels, which are content with expressing personal religious experience and leaving the management of society, politics, and administration of justice to earthly rulers, the Koran and the sunnah do not acknowledge any form of rule, judgment, or judicature other than Islamic laws. They provide the theory, application, and foundation of these laws. Nevertheless, following the example of its predecessor, the Iranian constitution of 1979 recognizes independence of the judiciary, a concept borrowed from the French Revolution’s principle of separating the three branches of the government. However, the same article that recognizes the judicial branch, places it under the supervision of the Supreme Leadership, the leader of the Islamic Republic (Article 57). By giving the leader the right to appoint the head of the judicial branch, Article 111 of the 1979 constitution also denies this branch any independence and, by exercising the use of ijtihad, it guarantees that this branch will adhere to Islam.

One of the absolute concepts in the Iranian constitution is that all laws must be in accordance with Islamic precedents. Article four of the constitution openly acknowledges and requires the unconditional accordance of laws with Islamic standards: All political, military, cultural, official, economic, financial, criminal, civil, and other laws must be based on Islamic standards. The faqihs who wrote the Iranian constitution knew, better than anyone else, that the principles of the sunnah and the Koran are subject to interpretation.

Before the first Pahlavi reign, the judiciary in Iran was independent from the Executive branch and the exclusive domain of the Sunni and Shi`a faqihs. Contradictory rulings from two different branches of Islam caused widespread chaos. In order to monopolize the rule of society, Islamic leaders had no choice but to conform to one of the preferred interpretations and banish others, because a unified country cannot be governed with conflicting laws.

The need to govern the country under a single body of laws forced the faqihs to deviate from one of the oldest, holiest, and most important principles of the Shi`a fiqh (the legal foundation of Islamic religious, political, and civil life), that is the “independence of the marja‘ al-taqlid and equal validity and value of their rulings and interpretations.” Faqihs specified, as early as article four, that the decision and interpretation of “…six members of the Council of the Guardians of the constitution,” appointed by the Leader of the Islamic Republic, would be the sole “authority to determine whether laws concur with Islamic standards.” They also stipulated in other articles that all laws passed by the Majles (Iran’s parliament) are valid only after passage in the Council of Guardians. It was also decided that meetings of the Majles would not be valid without the presence of the Council of Guardians.

One major priority for the Shi’a clergy in the 1979 revolution was the restoration of their judicial stranglehold, which was taken away by the first Pahlavi government. The Shi’a clergy also wanted to reverse changes made during the 1906-11 constitutional revolution.

By establishing a modern Ministry of Justice and passing secular and civil laws, the first Pahlavi regime managed to wrench the judiciary away from the clergy’s thousand-year-old domination by the clergy. By making the judicial system in Iran religiously oriented, faqihs reversed those transformations and restored the “usurped right” of the judiciary to its “true owners”—the clergy. They then asserted in Article 61 of the constitution: “Courts must be held according to Islamic standards and must uphold divine hodud.” (Hodud, in this article, refers to shari’a laws). Faqihs emphasized absolute laws, articles, and the idea that Islam was not bound by time or place. However, since thousand-year-old theoretical disputes were thrown into the same arena as the practical management of society, they were shackled to relative time- and place-bound needs.

A portion of the Iranian people are Sunni and they follow the four Schools of Law in the Sunni tradition. The faqihs, who could not afford to overlook this fact, negated one of the most important principles of legislation, equality of all citizens of a country before the law. The faqihs granted Sunni Muslims the right to be judged in courts that pass laws of different religions. Followers of the three other recognized and licensed religions in Iran—Christianity, Judaism, and Zoroastrianism—are deprived of this right. According to the Iranian constitution, Christians, Jews, and Zoroastrians in Iran are only free in personal affairs.

Firm Common Ground between Conservatives and Reformists in the Centrality of Allah

For all schools of Islam, from conservative fundamentalists to mystics and assorted Shi`a and Sunni reformers, Allah is the creator and source of knowledge and virtue. Religious experience and faith in Allah is the essence of humanity. Even those Islamic reformers who have borrowed interpretations from classical mysticism, and those who have treated shari’a as the “superficial shell of religious experience” or “useful solutions for the time and place of, and applicable to, the early stage of Islam” and leave legislation of earthly laws to humans, take it as an ineluctable principle that laws made by humans remain within the framework of Islam. These man-made laws do not contradict Islamic principles or the religious experience of the Prophet. In their view, deviating from the principle of conformity, faith in Allah, and the Islamic and Koranic religious experience may be transformed into the pure rationalism of non-believers or may become indistinct from other religions. By losing his role in the management of day to day human life, Allah turns into the Aristotelian “creator” or into God, the “loving father” of the “New Testament.” Nothing remains of the Koran except a few phrases about personal religious experience. With the distinction between Islam and other religions removed, the necessity of Islam’s emergence is nullified.

A distinguishing characteristic of conservative and reformist Muslims, is not so much belief in the creator and the personal, spiritual religious experience—a common ground of all religions—but rather, the Islamic rituals, customs, concepts, and laws. Of these, the most important portion of Islamic laws in the Koran and the Prophet Muhammad’s sunnah deals with the social and daily life of humans. This is reflected in the bureaucracy, judicial laws, structure, and policy of the judicial system of the Islamic Republic. According to Muslim faqihs, laws in Iran—whether conservative or reformist—should conform to Islamic principles and abide by the framework and religious experience, while dictating relations among individuals in this life. The disagreement between conservatives and reformers about compulsory or optional enforcement of Islamic laws and the contradictory interpretations of laws derived from the Koran and sunnah turns into an academic debate. In Iran, philosophy of law is not a theoretical issue but a practical matter. The need for homogeneity and unity of laws cannot be impeded by interpretations that conflict with one another. As a result, even the most radical religious reformists attempt to discuss the issue of law and judgment in Islam only in generalities. By including the realm of legislating specific laws for specific cases, it is not possible to follow all interpretations of the Koran and sunnah. Different interpretations need to be eliminated for the sake of one single interpretation. In practice, the difference between conservative and reformist interpretations becomes blurred. In the same way, unity between these two sets of ideas and the need for harmony between laws, framework of Islam, the Koran, and the sunnah take priority over disagreement.

The set of contradictions enumerated above has turned the judicial laws of Iran into a hollow and impractical collection of rules. The Iranian judicial system has become one of the most lawless enterprises of all. Despite an abundance of fiqh books describing Islamic law, a wealth of laws and rulings specified in the theses of the marja‘ al-taqlid, and a plethora of laws, the judicial system of Iran has been transformed into a system in which law is not the basis for rulings. Rather, judicial rulings are based on a judge’s opinion and current political trends. The Islamic Republic of Iran is probably the only country in the world that is unable to pass a common penal code. Thirty years have passed since the Islamic Revolution, but the Criminal Code of Iran still bears the adjective “temporary,” and every two to six years its temporary period is renewed. A judicial system that is above the law would surely be one of the most fitting headings for studying and analyzing the policy, structure, and performance of the judicial system of Iran.