Archive of SID Intl. J. Humanities (2019) Vol. 26 (1): (73-94) SPECIAL SPECIAL ISSUE: ISSUE: JusticeJustice Performance of Justice in Qajar Society Janet Afary1 Received: 2018/12/21 Accepted: 2019/8/16 Abstract This article examines the performance of justice in Qajar Iranian society (1789-1906) and the ways in which social hierarchies operated in the determination of justice. As in ancient or medieval European society, people were not considered equal before the law. Men were treated differently from women, while non-Muslims were subject to substantially different expectations and punishments. Sunnis and those belonging to other Shi’i schools of Islam such as the Isma‘ilis and Zaidis had fewer rights than Twelver Shi’is in legal disputes and were subject to more restrictions. But even men belonging to Twelver Shi’ism, the largest branch of Shi’ism and a majority of Iranian, were not equal before the law. In addition, partly because of the duality between ‘urfi customary law and sharia religious law, and party because of clerical power, laws were neither unanimous nor centralized, which meant justice was often arbitrary. Qajar justice commonly practiced corporeal punishment and executions, usually performed in public, and these served as a means of both chastising the people and entertaining them. Finally, the institution of slavery remained in force. Slaves, as moveable properties, occupied a position between humans and commodities and were subject to very different sets of regulations and punishments. One consequence of this patch quilt of laws was that European powers, starting in the Safavid era, demanded the right to adjudicate legal disputes between their citizens who resided in Iran and the local populace. These agreements, which were known as capitulation treaties, offered protection to persecuted minorities of Iran and runaway slaves. But they also allowed foreign powers to become involved in Iran’s domestic affairs and to monitor maritime trade in the Persian Gulf. All of these social hierarchies would be questioned in the course of the 1906 Constitutional Revolution and new laws would be promulgated in the hopes of creating a modern state with equal rights for citizens. Keywords: Justice in Iran; slavery in Iran; minorities in Iran; capitulations in Iran ______________________________________________________________ 1. Mellichamp Professor of Religious Studies at the University of California Santa Barbara. 73 www.SID.ir Archive of SID Afary, J ____________________________________ Intl. J. Humanities (2019) Vol. 26 (1): (73-94) Introduction The British officer and scholar Sir Percy their provinces and the shah appointed and Sykes believed that before the 1906 dismissed their judges. The courts known as Constitutional Revolution, the shah had been “houses of justice” (divān khāneh), an absolute monarch whose unquestioned administered justice and the law was carried authority was rooted in the traditions of the out by the police (dārugheh). Village heads Achaemenid Empire: “In his person were resolved local conflicts through mediation fused the threefold functions of government: (Sykes, 1930, vol. 2:384-386; Amanat, 2008: legislative, executive, and judicial. He was the 125). pivot upon which turned the entire The shah also appointed ombudsmen, machinery of public life.” (Sykes, 1930, vol. 2: entitled vakil al-ru‘āyā (deputy of the people) 381) Yet despite this ascription of absolutism for the capital city and the provinces. This by Sykes and others, Qajar monarchs of the practice also had pre-Islamic roots but had nineteenth century were not entirely become more prevalent by the Safavid era. omnipotent rulers. Rather, the patrimonial By the late eighteenth century, the office of powers of the ruler were checked by the vakil had become hereditary, with a fixed clerical establishment, along with tribal salary. John Perry as compared Iran’s vakil leaders and local notables, including princes al-ru‘āyā to the Roman Republic’s tribunes of and other provincial governors the plebs, the most important institution that (Sheikholeslami, 1997). checked the powers of the Roman Senate and Two sets of laws also regulated society: the magistrates, and whose presence ‘urf customary law and sharia religious law, contributed to “the horizontal integration of though the boundaries between the two were society” (Perry, 1978: 214). The vakil not always clearly marked. The state adjudicated individual and group claims, and administered the ‘urf customary law. ‘Urf mediated property disputes between business was pre-Islamic in origin and covered penal partners and conflicts within guilds. The law (crimes against the state), such as vakil also advocated for peasants and artisans resistance to the authorities, theft, highway against the tyranny of the rich and powerful robberies and murders, military and and served as a vertical intermediary between government affairs, taxation, and issues that the shah and his subjects.1 the mojtaheds (jurisconsults/high clerics) In contrast, sharia religious law was had delegated to the state. This customary derived from the Quran and the hadiths (oral law varied from region to region and was traditions attributed to the Prophet), the generally undocumented. It was supposed to judgments and hadiths attributed to the Shi’i reflect “common-sense and traditions, or imams, and the decisions of the Shi’i jurists. precedents, orally handed down” (Benjamin, Sharia law often dealt with religious matters 1887: 439). Governors set up ‘urf courts in and offenses; family affairs, such as marriage, 1 The existence of this institution facilitated public of Parliament (MPs) were initially referred to as vakils acceptance of the 1906 Parliament. In fact, members of the Majles (Perry, 1978 :213). www.SID.ir Archive of SID Performance of Justice in Qajar Society … ________________ Intl. J. Humanities (2019) Vol. 26 (1) divorce, inheritance, contract and land branch of Shi’ism espoused by a majority of disputes; and the judicial process (Sykes, Iranians, equal before the law. In addition, 1930, vol. 2: 384-386). The first American partly because of the duality between ‘urf and Minister in Iran, Samuel Benjamin, believed sharia law, and party because of clerical that the leading mojtahed was deemed power, laws were neither uniform nor reasonably impartial in his judgment and centralized, which meant justice was often that his authority was therefore far superior quite arbitrary. Qajar justice commonly to others. He observed that while a verdict practiced corporeal punishment and based on ‘urf law could be appealed to higher executions, usually performed in public, and authorities, including the governor or the these served as a means of both chastisement shah, that of the ulama was “accepted without and mass entertainment. Finally, the demur as final” and was not referred to the institution of slavery remained in force. governor or the shah. He thus concluded that Slaves, as moveable properties, occupied a while the “urf occupies a prominent place in position between humans and commodities the administration of justice, the Shahr and were subject to very different sets of laws (sharia) constitutes by far the more and punishments. important legal authority of the land.” A One consequence of this patch quilt of “word from him [the leading mojtahed] laws was that European powers, starting in would hurl the Shah from his throne, or be the Safavid era, demanded the right to the fiat and doom of every Christian and adjudicate legal disputes between their foreigner in the land” (Benjamin, 1887: 439- citizens who resided in Iran and the local 440). populace. These agreements, which were Both the state and the ulama claimed to known as capitulation treaties, also offered uphold the principles of justice, yet their protection to persecuted minorities of Iran notions of justice differed dramatically from and runaway slaves. But they allowed foreign those of modern times. This article will powers to become involved in Iran’s examine the performance of justice in the domestic affairs and to monitor maritime Qajar era and how social hierarchies trade in the Persian Gulf. Traditional mattered most in its determination. Similar practices of justice would be questioned in to ancient or medieval European society, the course of the Constitutional Revolution people were never considered equal before and new laws would be promulgated in the the law. Men were treated differently from hopes of creating a modern state with equal women, while non-Muslims were subject to rights for all citizens and ending foreign substantially different expectations and capitulation treaties. punishments. Sunnis and those belonging to other Shi’i schools of Islam such as the The Circle of Justice and the Four Social Isma‘ilis and Zaidis had fewer rights than Classes Twelver Shi’is in legal disputes and were Before the institutionalization of Shi’ism subject to more restrictions. Nor were men some five centuries ago in the Safavid era, belonging to Twelver Shi’ism, the largest when a majority of Iranians continued to 75 www.SID.ir Archive of SID Afary, J ____________________________________ Intl. J. Humanities (2019) Vol. 26 (1): (73-94) adhere to the Sunni branch of Islam, the shah’s function was to preserve the overt conceptions of justice were predicated on domination of these classes and the rights establishing a successful and prosperous that pertained to each according to its social government. As in medieval European and function.2 Ottoman societies, in medieval Iran justice Nizām al-Mulk Tusi (1018–1092), the did not mean equal treatment of individual Persian Sunni scholar and vizier in the Seljuq free men; rather, justice was a guarantor of Empire, and author of Siyāsat Nāmeh (The the corporate system itself. A just ruler Book of Government), argued that social supported the military, which provided stability required a great king with wisdom security. Security in turn facilitated economic and justice. He defined justice as a balancing prosperity, which ultimately supported the act. To the extent that the king upheld the shah and completed the circle.