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the Constitutional Era

On 14 Jamādi al-Thāni 1324 AH/August 5, 1906 the Qajar king, Mozaffar al-Din Shah, conceded to the constitutional system of monarchy and subsequently on the 30th of December of the same year the constitutional law was passed by the first Majles, referred to as the “Nezāmnāmeh-ye Asāsi”, which contained fifty-one articles. Since these articles proved to be insufficient in the fulfillment of the public demands several other articles were suggested a year later, which were passed as the amendments to the constitution on 29 Sha’bān 1325/September 8, 1907. The most important outcomes of the Iranian constitutional law were the curbing of the power of the royalty and the abolition of a despotic rule, the legalization of the people’s sovereignty and the establishment of the Majles as its symbol, and the separation of the administration, legislation, and judiciary bodies on the same pattern as the modern systems that prevailed in other countries of the world.

Following the official recognition of the constitution and shortly after the establishment of a legislative assembly the grounds were prepared for the establishment of law and justice in Iran in its modern sense. However, in actual practice for nearly two decades and due to certain obstacles the process of legislation took shape very slowly while even the laws that were passed were of a rather superficial nature. However, the turning point in the legislative system was the passing of some principal laws related to legal procedures in the year 1329 AH/1911 AD under a strong influence of French laws.

The process of legislation and the gradual trend in the adaptation of laws as per the prevalent social norms continued throughout the 1920’s and 1930’s. From among the important steps that were taken in the area of legislation, mention can be made of the endorsement of the “Trade Law” in 1924 and the penal code in 1925 (on an experimental basis); the dissolution of the existing department of justice in the winter of 1926 and the establishment of a new department of justice in May, 1927; the endorsement of the first volume of the civil law in 1928; the endorsement of the law related to the organization of the department of justice in 1928 as well as the law related to the registration of ownership of property in 1931; the endorsement of the 2nd and 3rd volumes of the civil law in 1934 and 1935 respectively; the amendments of the law of trade between the years 1925-32 and the law related to the civil legal procedures in 1939; and the endorsement of the non-litigious jurisdiction act in 1940.

The important point to keep in mind is that during this period the legislators had endeavored towards finding a way to bridge the gap between the Islamic religious law and the requirements of the new social norms. While the civil law of Iran, and particularly its first volume, was based on the Ithnā ‘Ashari feqh sources like the “Sharh-e Lom’ah” of Shahid Thāni, the “Sharāye’” of Allameh Helli, and the “Makāseb” of Sheikh Mortezā Ansāri, the French, Swiss, and Belgian laws were resorted to for the purpose of formulating the religious-based laws as well as the purpose of legislating such civil laws as the personal law, nationality, the law of trade, and legal proceedings, which were unprecedented in religious sources. Another point to be mentioned here is that during the process of the legislation of these laws the laws of other Islamic countries like the Ottoman Empire and Egypt were also consulted.

Moreover, the two religious and modernist trends were in disagreement over details concerning the criminal laws. The existing set of criminal laws that was applied on an experimental basis had become distanced from religious laws both in the definition of what were termed as criminal acts as well as in the matters of their retribution. This resulted in the legislation of an article that was added at the end of the penal code which stated that “the punishments envisaged in this law concerning those proven guilty are based merely upon the social norms and for the purpose of the protection of law and order in the country”. In addition, it also made mention of a “special criminal tribunal” for the purpose of implementing religious sentences that remained confined to theory without the formulation of any proper laws in this regard.



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