Law and Society in Post-Revolutionary Iran
Commentary by Professor and Sociologist Rasool Nafisi

An independent judiciary is considered the bulwark of democracy, and the main safeguard protecting human rights against the transgressions of state power. However, over the past fifteen years, the Iranian Constitution has been shaped with a different end in mind —that of consolidating power in the hands of religious clerics. Iran's judiciary systematically jails dissidents, intimidates members of parliament, and shuts down newspapers. The judiciary is also in the process of organizing its own police force to enforce verdicts.

The original idea of Iran's clerical state was to simplify the judiciary to match its ideal of a "pristine Islamic society." In this model, lawyers were not needed, and the court system was streamlined to give absolute power to the judge, who was supposed to be a Mojtahed or a qualified cleric. The opinion or knowledge of the judge was the main criterion for judgment, without much need for evidence. Quick punishment was preferred, and imprisonment was considered un-Islamic because there is no reference to imprisonment in the texts of Islamic Shariah law.

The principle that society has the right to punish offenders is not considered in Shariah law. Instead the Shariah focuses on the right of the individual to avenge the wrong done to him or her. The Biblical principle of an eye for an eye and a tooth for a tooth predominates this system of justice. It is a system that could work in a simple tribal community, and that's what many founders of the Islamic Republic had in mind: to reduce the semi-modern Iranian society to the level of a tribal community.

Several things have made the possibility of such a tribal community remote. Iran's developed civil society is a well-educated populace with its own journalists, writers, intellectuals and professional associations. These groups can be strong advocates for human rights and they keep dissent alive. Iran's oil has also kept the country connected to the global economy, making it more difficult for Iran to ignore international pressures to modernize.

The Shi'ite clerical hierarchy also made it difficult for a tribal society to emerge. Over ninety percent of Iranians are Shi'ites, a minority sect that forms 10-15 percent of Muslims of the world. The main difference between Shi'ism and majority Sunni Islam is the existence of a powerful and independent clergy in the former. In Sunni countries like Egypt and Saudi Arabia Ulama, or clerics, are salaried employees of the state. In Shi'ite communities clerics are independent from the state.

Shi'ite clerics also maintain their independence from each other, meaning each Mujtahed or qualified clergyman is entitled to his own interpretation of the faith, and Shariah laws. This factor is essential in understanding the present difference of opinion between ruling clergy of Iran. Many top ruling clerics believe in the absolute application of traditional Islamic laws as they understand them, while other clergymen maintain a much more liberal interpretation of Islam. The latter are mostly outside of state power circles and recommend updating and innovating Islamic laws.

In Islam the line between sacred and secular is blurred. The Prophet Muhammad himself was both the prophet of Allah and a statesman. Laws of Shariah are based on the teachings of the Quran and on practices of the Prophet Muhammad. The Shi'ite tradition also permits top clerics to issue Ijtihads, or independent opinions (fatwas), mandating changes to laws in order to fit the times. Ijtihads cannot, however, contradict the Quran. They were used only sparingly in the past few centuries, but since the Revolution of 1979, Ijtihads are the primary tool used within fundamentalist structure to update Shariah law.

In other countries like Iraq, Afghanistan, Turkey and Egypt, many Muslims are clamoring for reenactment of fundamentalist Islamic measures. Some support the re-introduction of spectacular and gruesome punishments such as stoning, beheading, amputation and lashing. Among these countries, only Iran has experimented for 25 years with a "pristine Islamic society." Years of trial and error have given Iran unique experience and perspective and have put the country at the center of a global debate over Islamic justice and society.

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