...The law in Persia, and, indeed, among Musulman peoples in
general, consists of two branches: the religious, and the common law that which
is based upon the Muhammadan Scriptures, and that which is based on precedent;
that which is administered by ecclesiastical, and that which is administered by
civil tribunals. In Persia, the former is known as the Shar’, the latter as the
‘Urf. From the two is evolved a jurisprudence which, although in no sense
scientific, is yet reasonably practical in application and is roughly
accommodated to the needs and circumstances of those for whom it is dispensed.
The basis of authority in the case of the Shar’, or Ecclesiastical Law,
consists of the utterances of the Prophet in the Qur’án; of the opinions of the
Twelve Holy Imáms, whose voice in the judgment of the Shí’ah Muhammadans is of
scarcely inferior weight; and of the commentaries of a school of pre-eminent
ecclesiastical jurists. The latter have played much the same part in adding to
the volume of the national jurisprudence that the famous juris consulti did
with the Common Law of Rome, or the Talmudic commentators with the Hebrew
system. The body of law so framed has been roughly codified and divided into
four heads, dealing respectively with religious rites and duties, with
contracts and obligations, with personal affairs, and with sumptuary rules and
judicial procedure. This law is administered by an ecclesiastical court,
consisting of mullás, i.e. lay priests and mujtahids, i.e. learned doctors of
the law, assisted sometimes by qádís or judges, and under the presidency of an
official, known as the Shaykhu’l-Islám, one of whom is, as a rule, appointed to
every large city by the sovereign. In olden days, the chief of this
ecclesiastical hierarchy was the Sadru’s-Sudur, or Pontifex Maximus, a
dignitary who was chosen by the king and placed over the entire priesthood and
judicial bench of the kingdom. But this office was abolished in his
anti-clerical campaign by Nadir Sháh, and has never been renewed. In smaller
centres of population and villages, the place of this court is taken by the
local mullá or mullás, who, for a consideration, are always ready with a text
from the Qur’án.In the case of the higher courts, the decision is invariably written out, along with the citation from the Scriptures, or the commentators, upon which it is based. Cases of extreme importance are referred to the more eminent mujtahids, of whom there is never a large number, who gain their position solely by eminent learning or abilities, ratified by the popular approval, and whose decisions are seldom impugned.... In works upon the theory of the law in Persia, it is commonly written that criminal cases are decided by the ecclesiastical, and civil cases by the secular, courts. In practice, however, there is no such clear distinction; the functions and the prerogative of the co-ordinate benches vary at different epochs, and appear to be a matter of accident or choice rather than of necessity; and at the present time, though criminal cases of difficulty may be submitted to the ecclesiastical court, yet it is with civil matters that they are chiefly concerned. Questions of heresy or sacrilege are naturally referred to them; they also take cognisance of adultery and divorce; and intoxication as an offence, not against the common law (indeed, if it were a matter of precedent, insobriety could present the highest credentials in Persia), but against the Qur’án, falls within the scope of their judgment....
- Lord Curzon’s (Excerpts from “Persia and the Persian Question,”
vol. 1, pp. 452–55; quoted by Shoghi Effendi in the Introduction to the
Dawn-Breakers’)
