Swimming with doctor Matin Daftari
A brief story of Iranian civil law
June 13, 2006
As my friends who attended his classes at the Faculty of Law of Tehran University tell me, Dr. Ahmad Matin Daftari did not suffer fools easily. When a student finished his rambling non-responsive answer to his question, ostad fixed his gaze at him for a few seconds and then said: “you are like a man who has rubbed his body with oil before going into the sea; you come out not even wet.” I thought of this parable when I recently waded into the Professor’s three volume tomb on Iranian civil procedure. My task was more daunting as I had to retrieve a concise essay that covered not only civil procedure but the much broader topic of the civil law of Iran - which meant diving into many more oceans of sources.
This honor I owed to another legendary Iranian Professor. In the cool shades of the garden of an Oxford college last summer, Dr. Ehsan Yarshater pulled me aside at a reception and asked me to write this essay for Encyclopaedia Iranica. I accepted because I have not been able to find a comparable source that would satisfy a need that is obvious.
While this draft is now making its way in the distillery of the Encyclopaedia, I submit it herewith for publication in Iranian.com, as an appropriate contemporary forum most accessible to interested readers and hospitable to interactive response. The subject may appear dry to the general reader, but I have tried to make it accessible. It is, regardless, an undeniably significant topic as it relates not only to law but also to issues of customs, religion, politics, and modernization.
This is the third in the series of my attempts to write on topics of jurisprudence of Iran. You might have seen my previous papers on the Islamic Republic's Constitution, published in the March 2003 issue of International Sociology, and on Mosaddeq's Conception of Constitutionalism, posted on Iranian.com in 2006. As those others, this piece inevitably suffers from the potential shortcomings of pioneer works. I hope it would generate thoughtful critique, resulting in a much better revised version. In the meantime, you would kindly please forgive minor warps, such as errant transliteration. Many thanks.
abstract: This concise history and digest of the contemporary civil law of Iran was prepared for Encyclopaedia Iranica. It aims to serve general readers as well as scholars of the field. That dual goal restricts annotations, but the attached bibliography of sources used should provide ample specific references. At the same time, the themes explored here connect this essay to the more general topics of theoretical interest in jurisprudence. Among them are the challenges facing a tradition-bound legal system in accommodating changes required by modern times. The process is typically more complex when tradition is sanctified by religion, as it was in Iran. Furthermore, the tools for modifications of the laws were extrageneous. Like many other old countries of the East, Iran was awakened by the superiority of the Twentieth Century West and determined to bridge the gap by borrowing, among other things, from its legal system. The process of digesting this importation also prompts comparison with Western European legal systems’ earlier reception of Roman Law. The transition is never smooth. As the case of Iran proves, ultimately, the incremental evolution of customs determines the shape of enforceable law.
Iranian civil law (hoqooq-e madani) is only a part of the legal system of that country. Iran is not a “Civil Law” country as that term is understood in the English language world with its, mostly, common law system. Iranian civil law is a “private law” as distinguished from “public law”such as constitutional law or administrative law. While the latter address issues in which government is involved, civil law deals with issues arising from relations among individuals. In these issues, government is not a party. Hence civil law also excludes issues of criminal law.
Civil law is about the rights and duties of individuals vis-à-vis each other. It also covers their relationsas members of groups, such as business entities. In addition to enumerating the substance of those rights and duties, civil law provides the procedures for enforcing them. 
The term civil law in Iranian is of recent coinage. Before the 1920s, the term that approximated it was orfi (customary) law denoting a body of laws different from canonical (sharii) laws. The term hoqooqi (legal) was also used in place of orfi, especially in reference to civil procedures. Both of these were inadequate equivalents for “civil” as they were too broad and imprecise. Civil law (-e madani) became current after its usage in the Civil Code (1927-1932) and the Code of Civil Procedure (1936-1939) -although the term civil (madani) had been used as an isolated instance in the existing Business Code to refer to the old form of partnership (sherkat-e madani) in Islamic law. 
As a new term employed by the drafters of statutes, the exact referent of “civil law” was uncertain.  Definitive interpretation of its content has still not been provided by courts as judicial decisions have not been systematically compiled and reported.  The study of Iranian civil law is principally based on the commentaries of legal scholars, mostly university professors who have, incidentally, influenced judges and lawyers.
The term madani is a translation of the French Civile.The inevitable inadequacy of the Persian words chosen to render full and precise legal concepts from another language is a widespread problem. Iranian civil law is an edifice built with elements from European laws and existing Islamic law; and the texts of Islamic law were virtually all in Arabic.  (This essay, incidentally, also is not immune from the same potential problem of translation as it tries to convey the legal concepts used in Persian texts of the civil law.)
The notions of civil law are not alien to the Persian culture. In the ancient Mazdan divine law there was pronounced attention to regulating the material world with ideas of right, justice, and judges. The founder of the Medes Kingdom, Deioces (728-675 BCE), according to Herodotus, received his crown because of the people’s appreciation of his skill in resolving disputes among them. The Achaemenian kings (559-330 BCE) incorporated elements of customary law into canonical law, and established the principles of the rule of law enforced by the kingand applicable to the king himself.The Sassanid dynasty (226-655 CE) secularized the law by institutionalizing legislation, and decriminalized civil action by compensating the victim for damage instead of punishing the wrongdoer. 
Islamic law drew much from customary laws while developing rational legal constructs. The Abbasid Caliphs (758-1258) regularly appointed judges for Iran.After a hiatus, the Safavid Shahs (1501-1722) established another judicial organization in Iran with a sheikh ol-eslam as the head of a board of clerical judgesin each judicial district, and a sadr-e ol-sodoor at the top of the hierarchy in Tehran,appointed by the Shah. The law of Jafari Emamiyeh Shiite -named after the 7th Shiite Imam, Jafar Sadeq- came to dominate. There were differences with the previously significant Sunni legal schools such as Hanafi, Maleki, and Hanbali. The Safavid’s system of courts did not survive them. Yet, retrospectively, there was much more continuity than rupture in the thirteen centuries since Islam came to Iran. Islamic laws were sustained by a community of believers who closely watched each other’s conduct for conformity with the legal tradition that was sanctified as Islamic.  The breaking point came with the Constitutional Revolution of 1906.
On the eve of the Revolution there was only one tribunal resembling a standing court. It was the Royal House of Justice (divankhaneh-ye adliehe) in Tehran. Its work in resolving disputes was negligible, just as the impact of the Shah’s edicts as the source of laws was minimal. In a country that was not well integrated, the actual judges were either the clergy with personal influence in the local communityor the respective bureaucratic officials. The latter had occasional administrative directives to guide them. The principal sources for substantive and procedural laws, however, were the treatises of Islamic jurists. They sometimes expressed conflicting views. Few clergy judges could have a clear grasp of their complex rules; the overwhelmingly illiterate public certainly did not. More often than not, disputes were handled by the traditional kadkhodamaneshi, a reconciliation method aiming at community peace and local notions of fairness. 
The Constitutional Revolution fed on widespread grievances against arbitrary rule and injustice. Demands for a “house of justice” (edalatkhaneh) and law-making by a body representing the people evolved as the Revolution’s main goals. The success of the Revolution pitted two groups against each other in shaping the new judicial system: those who desired to follow the Western European model and modernize, and the clergy who wished to consolidate their hold. The compromise was reflected in the 1907 Amendment to the Constitutionalong the line of the dominant faction of the clergy led by Akound-e Khorasani.The right of a non-religious body - Majles, or the National Consultative Assembly (majles-e shoray-e melli)- elected by the people to legislate new laws (ahkam-e orfiyeh) was recognized in an admission that religious laws may not have the answer to the new issues of the changing times.The new laws, however, would not contravene Islamic standards (mavazin-e shareiyeh). To that end, a committee of clergy, to be appointed by the Majles, would be able to remand unacceptable legislation. Furthermore, all judges would be qualified clergy. [9a]
By failing to appoint the members of the aforesaid committee, the Majles effectively avoided the clergy’s vetting of its legislation. The limited jurisdiction of the newly formed orfi (non-religious) courts modeled after the West,with a code of civil procedures was gradually expanded at the expense of the religious courts. Supported by the merchant class of the Bazaar, the modernizers’ influence was clearly increasing. The military coup of 1921 enabled them to propose an ambitious program to overhaul the judicial system. [9b] The fulfillment of the promise of this program, however, had to waituntil the real power behind that coup, Reza Khan, consolidated his control in 1925 as the new king of Persia. 
MAKING A NEW SYSTEM
For the pridefully nationalistic Reza Shah, the urgency of modernizing the legal system was related to his desire to terminate the regime of extraterritoriality (capitulation) claimed by the major Western European powers in Persia.They maintained that their citizens were subject only to their own laws and their own special courts so long as Iran lacked a modern judicial system. 
During the fourteen years from 1927 to 1941, Iranian civil law was constructed as a comprehensive new system. As its core were the 1335 articles of the Civil Codeon the substantive law. The Code of Civil Procedure was enacted to enforce that law. These were augmented by many other codes: on probate and estate administration, marriage and divorce, business, and recordationof real property titles. The organization for the administration of justice in civil action was set up. Rules for qualifications, training, and professional conduct of judges and lawyers were enacted. 
Reza Shah did not waiver. An autocrat, he eliminated all political opposition. The Majles was pliant; the deputies were, in effect, his “appointees.” [13a] No pressure group overtly influenced legislation. The religious group acquiesced, accommodated, and cooperated.  The king was the ultimate law giver. Of his agents, the one who contributed the most was Ali Akbar Davar. An unabashed modernizer, Davar also had a proven record as a skillful parliamentarian. He had served briefly both as a judge and as a prosecutor. Perhaps his most valuable skill, however, was in managing people. As the new Minister of Justice, he assembled a commission of legal experts to prepare the draft of the Civil Code. It included prominent names- but not dominating figures. Few had extensive legal training in Europe.Severalmore, however, could be counted as young modernizers (motejaddedin) engaging in dialogue with religionists (motesharrein) -those more attached to their religious training- the other group in the commission. 
The task was to graftborrowedlaws from Europe onto a body of Islamic laws, to select and codify traditional laws relevant to contemporary issues and update and augment them with a selection of codified European provisions.
The process of codifying the Islamic provisions of the Civil Code resembled Blackstone’s work in the Common Law, except that the sources were commentaries by jurists and not court decisions. These commentaries were by Jafari Emamieh Shiites.  The commission did not give categorical preference to any one. When there were disagreements among the views expressed in the commentaries, the commission showed preference in its choice for the later over the earlier view, the majority over the minority view , the more flexible view over the rigid view , and the rational view over the consensus view. The chosen view then became authoritative.  Creating such certainty, along with a coherent arrangement of the provisions were among the major accomplishments of the Civil Code. 
In selecting European laws, the commission mostly resorted to the French Civil Code, occasionally to the Swiss Civil Code, and a few times to the Belgian codes . In some instances, the commission modified the chosen European and Islamic provisions.
The integration of the European provisions into the main Islamic body of the Civil Code was facilitated by several factors. To begin with, there was much in common between Islamic jurisprudence and Western legal tradition. It is estimated that more than half of the provisions of the Iranian Civil Code would be familiar to the students of the ancient Roman law.  The Iranian Islamic law contains most of the fundamental principles of a Western legal system.  It recognizes many of the rights existing in the European civil law.  Its rules of contract are not dissimilar. 
The Islamic legal tradition was formed on much more than religion. Customs and reason played perhaps a greater role than belief.Of the four sources of the Shariat, Islamic jurists used agl (reason) to articulate legal concepts -much like their Roman and Jewish predecessors-, while paying attention to customs in order to achieve ijma (consensus); the other two sources, the Koran and sunnat (conduct of the Prophet) were then invoked to sanctify the resulting rules. This is reflected in the four rational and logical Principles of Islamic Jurisprudence (osool-e feqh): ebra (presumed absence of that which did not exist), esteshab (presumed existence of that which existed), ehtiyat (caution), and takhyyr (non-interference).  The mark of reason is also manifest in the Islamic methods of proof (hojjat), i.e., analogy (gyias and tamsil) and abstracting the general rule from the specific instances of its application (estegra). 
It is not even difficult to find parallels in the Western tradition for aspects of the Iranian Islamic law resulting more from customs than logic. Gender inequality is the legacy of all patriarchal societies, and religious discrimination is the left-over from the times when membership in the community was limited to the believers. The key difference was that Europe had moved on to the modern times while the Persians had stayed put. 
Eager as the modernizers were to bridge the gap, they recognized that to take root, changes of the new Iranian legal system had to be both calibrated and proffered in a way that could be absorbed. Accordingly, areas where old customs were entrenched and resistance would be strong were left as the least and the last touched. These were categories of “personal status” -such as marriage, divorce, will, intestacy, guardianship- as well as civil procedures such as rules of evidence and time bar.
In the laws of property there was more freedom for innovation. Even here, however, the old forms of contract (ogood-e moayyan) were retained because parties and judges still preferred to use them.  In addition to their own rules, however, these contract forms were now made subject to the newly codified modern essential requirements. More important, by another provision, Article 10, the Civil Code provided for any kind of contractual agreement, free from the old forms. 
The devices of ambiguity and silencewere used in dealing with some other traditional laws that the drafters hoped would eventually change.  In the more sensitive issues special care was taken. As an example, time bar (statute of limitation) was objectionable to the religionists who maintained that in Islamic law rights did not expire. In response, when it was incorporated in the civil codes, the provision was so written as to avoid the concept of expiration: it merely said that beyond the specified time the court would not hear the claim. 
The drafting as a whole was commendable. The Civil Code, especially, is concise and in simple, accessible Persian. It is not, however, devoid of occasional errors, mistakes of translation, and inadvertent insertion of rules of Islamic law in the European provisions and vice versa. 
The future of the new Iranian civil law depended on its acceptance by the people. It was believed that in the ongoing struggle between traditional customs and the need to change due to increased knowledge, custom would eventually retreat, but very gradually and slowly.  With an illiteracy rate of over ninety percent, Persians were not expected even to understand these laws for some time. Indeed, serious commentators argued that for now in Persia, ignorance of the law should be deemed an excuse.  Even some drafters of the civil law came to conclude that it was too advanced for the population on which it was imposed. They lamented that Iranians lacked the necessary tradition to assert their legal rights and to abide by their legal obligations. 
The courts could not establish valuable precedents. Their decisions were binding only on the parties to the dispute.These were not compiled and reported as needed to influence future decisions. In effect, each judge could interpret the laws as he saw fit, subject only to the directed remand by the National Supreme Court (divan-e ali-e keshvar) meeting as a whole, in a cumbersome process. 
The only source for a generally applicable interpretation of the law (tafsir-e qanooni) was the Majles. Instead of interpreting an existing law, the Majles generally chose to pass a new, and in effect repealing, law. The Majles could do so with abandon because there was no tribunal to declare a law unconstitutional, short of a difficult to convene elective Constituent Assembly. [35a]
The proliferation of new laws compounded both the absence of precedent and people’s ignorance of the law. The new laws, however, did address the requirements of the evolving Persian society, especially regarding the rights of women, workers, peasants, and urban dwellers, as well as business and economic developments. These needs were further met by the device of not implementing restrictive laws, such as those that prevented full participation of members of religious minorities. [35b] There was also a major revision of the Code of Civil Procedure, mostly to expedite the administration of justice. Furthermore, there were some innovative measures for adjudication of small disputes -in an underdeveloped country with inordinately scattered communities- through a combination of traditional method of kadkhodamaneshi and supervision of the court, such as the House of Equity (khaneh-ye ensaf) for rural areas and the Council of Arbitration (shora-ye davari) in urban centers. 
Most of these new laws were enacted after Reza Shah’s son and successor, Mohammad Reza Shah (1941-1979), had established nearly the same autocratic dominance in law making with a similarly pliant parliament.  In that sense, therefore, there was continuity during the Pahlavi period.
The essential aspects of Iranian civil law’s system of rights and duties of individuals toward each other are set forth in the Civil Code -which still remains virtually unchanged today. 
The Civil Code speaks of inalienable rights. Not only is this an odd place for such a concept as it more properly belongs in constitutions, but also the language used is more that of an obligation: no person may categorically divest himself (salb) of their rights. The provision, one of the few borrowed from the Swiss law, is more understandable in the context of that nation.  Iranian Civil Code does not specify the source of these rights. Notably, neither religion nor God is mentioned.  The prevailing commentary in the Pahlavi period, instead, held that rights and duties in Iranian civil law were determined by the state, which enforced them by sanctions. 
The legal theory in the Civil Code bifurcates rights and duties between those common to all residents and those appurtenant to the person and “traveling” with him. The latter - for example, in inheritance, and wills-are governed by customary rules of personal status rooted in history, economics, politics, and beliefs.The former -for example, ownership of goods-, based on situs, lend themselves to a more rational management, as evident in the laws of properties.
At the foundation of the Civil Code’s construct of property laws is the Islamic legal principle of the individual’s right of dominion (taslit). A person’s dominion over his properties is only nearly absolute. To begin with he is liable for damage to others caused by illegal or unreasonable use, even if done unintentionally. The remedy is making the victim whole.  This Islamic principle of no harm (la zarar) is the core of what might be called Iranian civil law’s theory of torts - yet to be fully developed.  If the causation is direct (etlaf) no fault or negligence needs to be proven - an apparent incongruity with the reasonable standard. Fault is required if the causation is indirect (tasbib), but it could be due to omission or commission.
The Civil Code also recognizes the legal concept of proximate cause which may not be the actual cause. In cases of joint tortfeasors, based on Islamic law both are liable. In the auto insurance code of 1968, comparative negligence was recognized. Between the actual wrongdoer and the person who directed him, the Civil Code holds the actor liable unless the director is proven to be the real culprit. 
A person’s right is also limited by operation of the law (gahri) in three enumerated areas: the laws of intestacy, how much and to whom one can make a gift in his will, and the right of first refusal (shofeh) for the partner in an undivided real estate ownership.  Additionally, specifically enacted laws could further restrict one’s right.
Quasi-contract is another source of legal obligation (elzamaat) recognized by the Civil Code. Unjust enrichment is both a European provision and founded on a Koranic verse. Quantum meruit is also a European concept incorporated in the Civil Code with equivalence in Islamic law (estifa). 
Finally, a person could divest part of his right by contract. The Civil Code provides three ways for contractual transactions. The traditional forms of contract (oqood-e moayan) -including sale, rent, mortgage, loan, and gift- with their own established rules; extraneous (“secondary”) conditions attached to these contracts (shart-ezemn-e aqad), and any other contract not violating a written law. The latter broke the boundaries of old contract forms, thus eliminating the need for “legal tricks” for transactions that Islamic law had not foreseen. 
To be valid all contracts must meet four requirements: the parties’ legal capacity to contract, their intent, determinability of the subject of contract, and lawfulness of the purpose. Mistake (eshtebah), undue influence (ekrah), fraud (tadlis), defect (ayb), and gross imbalance in the exchange (ghabn) are among the major reasons giving rise to the right to cancel a contract. 
Unlike the generally applicable law of properties, Iranian laws of personal status are based on customs of the specific person’s community -regarding such issues as marriage and divorce, will, intestacy, custody, guardianship, capacity, paternity, and support. Since in Iran community had been defined by religion, these laws are different for non-Shiite Iranians. For this purpose, four other religious communities are recognized: the sizable number of Sunni Muslims, and the much smaller groups of Zoroastrians, Christians, and Jews. All others are subject to general laws made for the Shiites. There was no change in this discriminatory practice because, it was thought, that would have caused “serious disturbances.” 
Although most of the rules about wills are based on Islamic law, the types of will and the formality required for making them are modeled after the French law. The last will prevails. Conditions could be attached to gifts; there are, however, restrictions. Only a portion of the estate, one-third, could be given by will if there are heirs. Spouses and heirs could not be pretermitted. A legatee must accept or reject the entire gift. Suicide invalidates the will. A murderer could not be a legatee. 
The order of priority in the distribution of a decedent’s estate is his debts, shares of legatees, shares of heirs, and escheat. A murderer does not inherit from his victim. Closeness of relationship to the deceased determines the priority of heirs. Children of temporary wives share equally with those of permanent wives. Heirship, however, is limited only to permanent wives, who share equally in one-fourth of only personal property. The husband takes his one-half of all types of property. These are shares when there are no children. If there is a child, then the shares are wife one-fifth, and husband one-fourth. A son’s share is twice that of a daughter. Illegitimate children and non-Muslims are not entitled heirs. Muslims may inherit from non-Muslims. 
Only the father and grandfather could be the trustee of the estate of a minor.There is no provision for such trustee of an adult heir; he takes his share directly. The mother has preferential right to the physical custody of a son only until the age of two, and a daughter until the age of seven,but would lose this preference if she remarries. Adults who could not distinguish between their profit and loss require guardians. All those entrusted with a charge have the fiduciary duty of avoiding errors of commission (taaddi) and omission (tafrit). 
The difference between Iranian Civil law and its European counterparts is perhaps most pronounced in marriage and divorce, despite many attempts -beginning with the 1931 marriage law and, especially, by the 1967 Law to Support the Family- to improve the wife’s position.  With few changes, noted below, the positions have remained the same under the Islamic Republic.
A man can marry up to four permanent wives and an unlimited number of temporary wives. He cannot marry a non-Muslim as a permanent wife, but can marry a follower of one of the recognized non-Muslim religions as a temporary wife. A Muslim woman is barred from marrying a non-Muslim. The institution of temporary wife, conceived to regulate a principally sexual relationship with far fewer rights than the permanent wife, is specific to Shiite Islam. 
As another Shiite peculiarity, a man cannot marry an enemy of the members of the House of Prophet (ahl-e beyt)who are treated as Shiite saints. Sexual consummation affects the extent of a wife’s property rights. A virgin adult girl needs the consent of her father and grandfather to marry-but if unreasonably denied she could petition the court. Although not specified in any law, heterosexuality is deemed to be, based on customs, a requirement for valid marriage. 
Matters relating to marriage and divorce, uniquely, are sent to special religious courts with clergy as judges, who are required to apply the rules of religious judgment- to all regardless of their religion. Marriage of followers of other religions is governed by their own customary rules, provided they are not contrary to Islamic law. 
Provisions borrowed from Swiss law regulate engagement before marriage. From the same source, the requirement of a certificate of physical health capacity -effectively requiring the age of fifteen for women and eighteen for men- was incorporated into Iranian civil law to prevent otherwise permissible marriage under those ages.  The Husband has the obligation of leadership (ryasat) of the family in return for his wife’s obligation to submit (tamkin). Submission includes having to live where her husband lives, requiring his permission for traveling abroad, and not taking a job he does not approve. There are mutual duties of good conduct between husband and wife. The property of each, however, remains separate. The husband owes his wife an initial payment (mahr) in addition to support (nafaqeh) for the duration of marriage. 
Marriage can be annulled by either party due to fraud, defect, or failure of specified conditions.A man has the right to divorce his wife without cause. A wife can ask the court for divorce for causes specified in the law, e.g., refusal to support, impotence, bad conduct, and contagious disease. Wife could obtain a power of attorney from husband to divorce in his name. The husband has to pay his divorced wife support for a specified time. The duty to provide support extends to children, and needy parents, as well.
The system for enforcing Iranian civil law created in the Pahlavi period, described below, underwent significant changes after the Islamic Revolution of 1979, which are discussed in the section for that period. The Pahlavi organization for redress in civil law was centered on establishing a court of general jurisdiction which soon absorbed the jurisdiction of the old business court and, more gradually, the functions of the religious court.  Some special courts survived, including, notably, the military court whose intrusion in civilians’ life, however, was triggered by political considerations.
The general court was required to take up all cases except those expired due to time bar, or with unclear request, or where disclosure of the facts would be against public order or morals.  A non-guilty decision by the criminal court did not bar civil action against the defendant. Qualifications for judges were specified. Law schools were expanded to train them. When their graduates grew large in number, they became the primary authorized pool for judges. The executive branch appointed the judges, but to assure independence they could not be dismissed without cause.In case of conflict between the judicial branch and the executive, the final decision was by the Supreme Court. 
For lawyers, licensing requirements, a code of professional conduct, and a bar association came into being. Civil procedures modeled after European standards were enacted. The parties had to prove the facts; the judge’s task was to apply the law. Burden of proof was on the claimant, and then it shifted to defense.Time bar and objection to jurisdiction had to be pleaded as affirmative defenses. There was no jury in civil action cases. 
The sources of admissible evidence were the parties, witnesses, judges, and legal presumptions. A hierarchy of value was assigned to the type of evidence. Admission and recorded official (rasmi)) documents headed the list. The oral testimony of witnesses (shahadat) and oath (qasam) lost the esteemed position they previously enjoyed under the Islamic law.Private letters were not subject to discovery. Rebuttable presumptions were allowed, especially as a form of judicial notice.The use of expert opinion and site examination was introduced.
Judges were required to dispose of all cases before them. Their decision had to be based on the law, and not “generally” by kadkhodamaneshi. If there was no specific law on the issue, then they had to look to the spirit (ruh) of the law and to the established customs (orf va aadaat-e mosallam). The spirit of the law was understood to be the legal principles of Islamic law that provided the underpinning for Iranian civil law. Customs were similarly Islamic. The mention of both, however, allowed for differences as customs evolved. Notably, there was no order of priority directed in case of conflict between the two. 
The judges’ decisions could be appealed. Trial de novo (dadresi mojaddad), however, was allowed only in exceptional situations. Only final judgments could be executed, but in exceptional situations a writ could be issued for the provisional execution of orders. [71
While much was achieved in establishing a coherent civil law system in the Pahlavi period, it was often subjected to criticism, not the least from some of those who played a pivotal role in shaping the system. Personnel shortage, backlog, corruption, and discriminatory application of the law were among the charges they levied. 
CHANGES AFTER THE ISLAMIC REVOLUTION
Compliance with Islamic Standards
The Revolution of 1979 brought to power in Iran a select group of high-ranking Shiite clergy, closely knit -in many instances by marital or tutorial bonds- and organized in a hierarchy designated by the Grand Ayatollah Khomeini. This hierocracy heralded -with redundancy- its ideological goal of ensuring the compliance of Iranian civil law with Islamic Standards (mavazin-e eslami): in the new Iranian Constitution, Article 4; in the revised Code of Civil Procedure, affecting substantive rights under the Civil Code- including the freedom to contract under Article 10 - and in commands therein to judges.
There was no regression to the strict position that Islamic law was so complete as to obviate further legislation. Rather, the conceit was that all such legislation had to be derived from and developed upon Islamic principles. Therefore, a retroactive process of re-examining the existing laws was also called for. 
The agency established for this task is a distinct board in the Guardian Council (shoray-e negahban). While the twelve-member Council as a whole rules on the constitutionality of the laws, only six of its designated members vote on the more important compliance of the laws with Islamic Standards. These are all clergy -faqih (Islamic jurist)- appointed by the Leader of the Revolution (rahbar)who is himself a clergy appointed for life by the Assembly of Experts (majles-e khebragan), an elected body with exclusive clergy membership.
The Guardian Council cannot initiate legislation. That is done by the Islamic Consultative Majles (majles-e shoray-e eslami) whose members are popularly elected from candidates vetted by the Guardian Council. The Council remands legislation it finds against Islamic Standards, or unconstitutional. As the Majles’s revision often did not satisfy the Guardian Council, to help resolve the impasse, a new body, Interest Council (majma’-e tashkis-e maslahat-e nezam), whose members included the six clerics of the Guardian Council, has been appointed by the Leader to advise him. The Leader retains the final say and hence is the ultimate law giver. However, he usually heeds the advice of the Interest Council and hence maintains the integrity of the hierocracy. 
If laws are not made by true representatives of the people, those who shape them still have had to be responsive to the public. Effective governance required laws to fulfill such needs of the public that could not be denied. Indeed, established customs had by now surged beyond incompatible Islamic rules.  Secondly, the regime had come to power by a popular revolution and had to deliver on its promises to retain that base. Thirdly, it faced active pressure groups, notably, the women, workers, urban poor, and peasants.
The hierocracy’s response has always not always been consistent as it wrestled with two contesting views, one conscious of the imperative of accommodating the changing times and the other protective of its tradition of privileges.  It sought common ground in the unity of the source invoked for Islamic Standards on the civil law. In contrast with the different commentaries by many Islamic jurists consulted by the drafters of the Pahlavi Civil Code, there was now almost exclusive reference to one commentary, Khomeini’s tahrirol-vasileh. 
Although the multi-volume tahrir provided answers to more than four thousand questions that it assumed to be of interest to a Muslim -many of them in the general fields of civil law -it has been of limited use. Many of the hypothetical situations it discussed bore little relevance to the actual issues facing contemporary Iranian society. Its discussions were not detailed enough to allow much extrapolation. Its answers were too often in the negative, restricting the opening for adjustments in the law. 
The basic problem, of course, was the general limitation of Islamic law in dealing with issues of relations in an economic and social environment different from the nomadic, agricultural, and mercantile culture for which it was developed.  That limit had been reached by the earnest efforts made in the drafting of the Civil Code. It is no surprise, therefore, that the Civil Code has been retained nearly intact by the Islamic Republic. The Guardian Council has repealed very few of its provisions.
There have been some cosmetic changes in the Civil Code, such as replacing references to the monarchy with the Islamic Republic,and insertion of provisions explicitly depriving the shrinking non-Muslim minorities from increasingly improbable intestacy opportunities with the Muslims.  The potentially meaningful changes, however, were in the provisions affecting enforcement, discussed below.
This pattern is discernable in other substantive codes of the civil law. Most of the existing laws in business, trade -both domestic and foreign-, land reform, urban land ownership, as well as family law and labor law have survived. The changes and evolution in these have been mostly the result of economic and social forces, and not efforts to implement the dictate of the Islamic law. Indeed, the new laws in these areas often called for greater government interventionin private relations, thus posing a serious problem of compliance with Islamic Standards which ordinarily opposed such intrusion. [82a]
To the extent that public regulations were not voluntary -for instance, as requirements in labor contract- they could not be legitimized by the device of the Secondary Condition of Contract (shart-ezemn-e aqad). [82b] Accordingly, the use of an alternative device became widespread: the Rule of Emergency (qaedeh-ye zaroorat). It was argued that the emergency conditions caused by the Revolution justified laws restricting individuals’ sacred right to property.  As an Islamic principle, however, the Rule of Emergency could permit only laws which circumstances made imperative - not simply desired- and only for short periods.  This led the regime to the theory of the Interest of the State.
In a radical assertion contravening the Shiite Islamic tradition, Khomeini as the sole source for jurisprudential principles declared, in 1988, that if the interest of the Islamic regime (maslahat-e nezam) so required even the foundational rules of Islam could be ignored. This is a justification now most commonly used. Accordingly, whatever the Islamic regime decides could be the law in compliance with Islam.  This position then is not dissimilar to that espoused by commentators during the Pahlavi era who maintained that the law is what the state says it is and supports by sanctions.
The changes under the Islamic Republic in the organization for the enforcement of the civil law according to Islamic Standards have been more consequential. The major focus has been on the judges. New qualifications of loyalty and religious learning have been established for them. They must meet Islamic juridical (feghi) standards. They receive special religious education. Judges are appointed by the High Judicial Council composed of learned clergy (mojtahed). In addition to the courts of general jurisdiction, the old religious courts have been resuscitated -now called Special Civil Courts- with jurisdiction over matters of divorce, wills, and public guardians. 
Judges must rule in accordance with Islamic Standards. Within that framework, they have been given considerable discretion. The revamping of the Code of Civil Procedure, in 2000, has eliminated many of its internationally common standards. The prescribed Islamic rules of procedure are inordinately flexible.  Changes in the objective standards of the Civil Code -such as the elimination of a certain age for majority- has furthered reliance on judges’ determination. Equally significant has been the change in the rules of evidence.
The Civil Code provisions have been modified to allow greater use of oral witness testimony and oath -lifting the restriction of amounts and types of case for which they might be applied-, and judges have been encouraged to use religious evidence (adalleh-ye sharii) in general, thus increasing the judges’ subjective role. If there is no written law, judges are required to resort to fatvas and legal principles in accord with religious standards, instead of customs and the spirit of the law. The yardstick of contemporary time and place has thus been eliminated in favor of religious guidelines. Finally, the religiously learned (mojtahed) judges are allowed to recuse themselves from a case if they consider the applicable law un-Islamic, regardless of what the Guardian Council might have said. 
Both time bar and late payment charges, as well as writs of execution for provisional orders, have been eliminated as contrary to Islam. This is only one of the factors that have contributed to the overloading of the dockets. The judicial system is also burdened by new Islamic laws that intrude into the hitherto private affairs of individuals, including their clothing. There is a shortage of judges and administrative staff. Basic rules of due process are often ignored. The Ministry of Justice had to publicly warn the judges to stop the practice of hearing and ruling on cases so summarily as simply by a telephone conversation. [89a] Unequal application of the law is believed to be rampant. Fixers are deemed to be far more effective than lawyers in conventional practice. [89b]
Some groups, especially women, have had remarkable successby their persistent resistance to excessive restrictions of their legal rights in the name of Islam. Wives have achieved the right to veto their husband’s choice of job; to contract with the husband for the option to divorce him if he takes another wife; to divorce him if he proves impotent even once; and to require the husband to ask court approval before divorcing his wife. Mothers’ preferential right to custody of their sons has been extended from two to seven years.  Other groups have not done so well. Religious minorities, especially, have felt forced to leave the country in the face of increased discrimination. 
The Islamic regime has not been insensitive to foreign criticism. It has justified its laws on grounds that they are true to local beliefs and customs. It has claimed compatibility with the universal general principles in civil law. When faced with the need to adapt to specific rules for international transactions it has chosen to isolate their application to segregated areas of the country. Thus, to compete with other Persian Gulf States, it has established a Free Trade Zone in the south of the country where foreigners are allowed to open banks and insurance companies, a privilege denied elsewhere to Iranians. It that sense, arguably, a measure of extraterritoriality, the elimination of which was a significant impetus for the creation of Iranian civil law, has returned.  (See notes/sources)
Keyvan Tabari is an international lawyer in San Francisco. He holds a PhD and a JD, and has taught at Colby College, the University of Colorado, and the University of Tehran.
Copyright Keyvan Tabari 2007. All Rights Reserved.