Civil Liberties and the Making of Iran's First Constitution

It is a commonplace these days to speak of historical narratives that are mythologized by subsequent generations. Not only political revolutions, which are by their very nature elusive and fraught with contradictions, but also political documents created in the midst of major social upheaval experience such multiple readings. Generations of Americans have taken great pride in the 1776 Declaration of Independence and its pronouncement that "all Men are created equal" and have the "inalienable Rights" of "Life, Liberty, and the Pursuit of Happiness." Debates continue, however, on the process through which this text was written and the fact that it cannot easily be reconciled with the 1787 constitution that legitimized slavery in the United States.

The Iranian constitutional laws of 1906–7 have had a somewhat similar trajectory.¹ The new laws recognized the authority of the Majles (Parliament), the new center of power, and curtailed the influence of the shah. The Majles negotiated all foreign treaties. It guaranteed the autonomy of the provincial councils and supported freedom of the press. Christians, Jews, and Zoroastrians were recognized as citizens and given equality before the law. Ultimately, however, the constitution could not reconcile the conflict between religious law and secular law and in this area fell far short of other modern constitutions.

The most important model for the Iranian constitutional laws of 1906–7 was the Belgian Constitution of 1831, although the framers of the Iranian law had also consulted the French, Bulgarian, and Ottoman constitutions. This essay explores the impact of these constitutions on the Iranian law. We shall see that the Iranian Constitution moved beyond its predecessors in several arenas. The Iranian law gave fewer rights to the king, expanding the authority of the Parliament and the prime minister. It also established a secular judiciary, which mitigated the traditional authority of the religious jurists. But the new law also gave unprecedented institutional powers to the clerical establishment, thereby undermining the new civil liberties the constitution granted and curtailing the abilities of both the Parliament and the judiciary.

The Traditional Discourse of Justice

The seventeenth-century French traveler Jean Chardin portrayed the shah of Iran as more powerful than any other monarch in the world.² Likewise, Sir Percy Sykes commented in the early twentieth century that the shah was an "absolute monarch" whose unquestioned authority was rooted in the traditions of the Achaemenian times: "In his person were fused the threefold functions of government, legislative, executive, and judicial. He was the pivot upon which turned the entire machinery of public life."³

Such might have been the perceptions of Western travelers, but reality belied such claims of absolutism, since the powers of the shah were mitigated by other influences. In traditional Iranian society, a dual system of authority existed where several other patriarchs—clerics, tribes, and local notables, including princes and other provincial governors—checked the patrimonial powers of the king in some arenas.⁴ There were also two sets of laws: Sharia law and ‘urf customary law. Sharia law was derived from the Quran and the hadith, judgments of the twelve Shi'i imams, and decisions of the jurists and was administered by various members of the clerical establishment.⁵ The state administered the ‘urf customary law. In the Qajar era (1779–1924), the ‘urf law was administered in courthouses known as divan khaneh and the rulings were carried out by police (darugheh). The shah appointed and dismissed the judges in these courts. Local governors also set up ‘urf courts in their provinces. At the village level, village heads resolved local conflicts through mediation.

The boundary between Sharia law and ‘urf law was never entirely clear. Sometimes, as in the late part of the Safavid era (1501–1722), all matters were settled through Sharia. At other times, as in the period of Nadir Shah Afshar...