A Case-Study of Non-Western Legal Systems and Cultures

In A Treatise on One Word, an essay on constitutional government written in 1871, Yusef Khan Mustashar od-Dawleh argued that all Iran needed, in order to transform itself into a modern nation, could be summed up in one word.¹ This magical word was qānon (from the Greek kanon), which he went on to describe as a French-style body of written legal codes uniformly applicable to all. Mustashar od-Dawleh was not alone in wondering why Iran had stagnated economically and was in a state of social disarray while European countries were prospering through technological progress. He was, however, amongst the first few who identified the main cause of Iran’s economic backwardness and social malaise as its failure to develop a modern constitutional government.

The publication of One Word in 1873 is part of the germination of a historically unique political movement for the establishment of the rule of law, which grew into the Iranian Constitutional Revolution between 1905 and 1911. The political momentum of this movement, which was supported by members of the clergy, merchants and royals, eventually forced the Qajar monarch, Mozaffar al-Din Shāh, to concede the election of a Parliament on 12 January 1906 and sign the first Iranian Constitution, which was drafted later the same year. By injecting the idea of democracy and the rule of law into the political life of the nation, the Constitutional Revolution permanently transformed Iranian politics and yet failed to create an executive branch which de facto operated and was accountable under the law. The establishment of a constitutional government was resisted by courtiers, state officials and the monarch, whose arbitrary powers it aimed to curtail. It was also opposed by the colonial powers, whose plans for the region were undermined by the rise of a revolutionary and democratic Iran.² However, a more important reason for the failure of the Constitutional Revolution to achieve its ultimate goals can be found in its lack of grassroots support. The underpinning ideology of the movement had not grown organically in Iran but was rather imported from Europe by the first generation of Iranian intellectuals during the nineteenth century and did not gain currency among their ordinary countrymen. Moreover, establishing the rule of law requires continuity in lawmaking and democratic processes, not to mention a public space which facilitates political debates and disagreements. Such continuity and space have not been characteristics of the historical processes which have defined Iran’s social and political development over the centuries.³

The institutionalisation of the Iranian Constitution was interrupted by external and internal political events, and plans to replace the arbitrary rule of the state (or estebdād) with the rule of law were brought to a premature end when Reza Khān (later Reza Shāh), an officer in the Persian Cossack Brigade, overthrew Ahmad Shāh Qajar and established the Pahlavi dynasty in 1925. With the reign of the Pahlavis began Iran’s modern era of estebdād. The Pahlavis carried out an extensive programme of construction and modernisation, setting up inter alia a modern judiciary, but their modernity was not introduced through a process of democratisation. Instead, it took the form of sham Westernisation imposed on the people of Iran, largely through the barrel of the gun.⁴ The Pahlavi family ruled Iran through 54 years of political turmoil and social instability until it too was swept aside by the tide of a revolutionary movement.

Aside from the overwhelmingly friendly and welcoming people, any first-time visitor to Iran will be stunned by the country’s driving habits. Seatbelts and mirrors are for sissies… Lanes are ignored in an all-out free-for-all. Traffic merges at 90 degrees and just pushes through. People drive backwards for blocks on one-way streets. U-turns in the middle of crowded thoroughfares are common. For some reason there seem to be very few wrecks (or even dings on cars) and nobody takes it personally. McLean (2007)

I don’t know why everyone is driving so fast… All they do when they get to their destination is drink tea.⁵ De Bellaigue (2004, p. 13)

This chapter may be read as an attempt to explore the driving habits of Iranians in light of Homa Katouzian’s historical thesis, which posits that Iranian society was not founded on written or unwritten ‘canons’ of law (qānon) and therefore has not acquired a strong tradition of rule by law (see Katouzian 1997, 2009). Although this study concludes by providing empirical support for Katouzian’s thesis, it originally started as a socio-legal inquiry into how Iranians perceive, conceptualise and experience their driving habits. During my recent visits to Iran, I was struck by the deterioration of the traffic situation and could not help wondering if it mirrored some structural dysfunctions embedded in Iranian society and culture. Otherwise, how could a group of people, who pride themselves, as one of the interviewees in this study put it, on being ‘courteous’, behave so recklessly towards the rights and safety of each other when driving their cars?

Iran has the highest rate of road traffic accidents (RTAs) worldwide—five times the world average. According to UNICEF (2007), ‘in 2006 nearly 28,000 people died in traffic accidents in Iran, compared with roughly 17,000 in 2000’,⁶ constituting the second most frequent single cause of mortality in the country (Amani and Kazemnejad 2010; Abbasi-Shavazi 2004).⁷ It is estimated that as many as 70 % of RTAs may be due to reckless and dangerous driving, with illegal overtaking and high-speed driving the main causes (See Iran Car Accidents 2011). In 2010, the population of Iran was about 74 million, the majority (65 %) of which lived in urban areas. According to the Statistical Center of Iran, more than 50 % of the population is under the age of 25 years, which means that the country has one of the youngest—and thus car accident-prone—populations in the world (cf. Abbasi-Shavazi 2004, p. 2; Ghajarieh et al. 2010, p. 342). The Iranian government has been concerned about the exceptionally high rate of RTAs for some time, and officials believe that current traffic regulations, which were introduced in the 1970s, are no longer fit for purpose (see Tehran Times, 8 November 2008). Consequently, the authorities have been seeking ways to improve driving habits by introducing severer penalties (Financial Times, 10 June 2008), and a new Bill entitled ‘Traffic Penalty’ has been submitted to Parliament, which introduces tough penalties for dangerous and reckless driving. It is, however, doubtful if tougher penalties will result in improved driver behaviour. Traffic researchers recognise the importance of law in regulating traffic and driving behaviour, but they point out that laws designed specifically to change driving habits are ultimately dependent on the legal culture of those responsible for enforcing the law, as well as on the legal culture of those who are expected to obey it accordingly (see McCartt and Geary 2004; Mashaw and Harfst 1990).⁸ The cultural dimensions of driving, and the fact that it is mediated through the technology of the automobile, which in itself affects behaviour in particular ways, turn it into a highly complex activity. As a result of its socio-cultural complexity, driving does not lend itself easily to formal methods of regulation.

There is a growing body of Iranian research, conducted with very few exceptions by various groups of medical doctors based at university hospitals, which describes and analyses the rising levels of RTAs as a new social problem ‘caused by the rapid modernisation of society’ (Salamati et al. 2009, p. 6). These studies often highlight growing car ownership (or the rapid increase in output of Iran’s car manufacturing industry), the constitution of the population in Iran (as mentioned above, Iran has a youthful population) and the changed lifestyles of Iranians (see Zamani-Alavijeh et al. 2010; Vafaee-Najar et al. 2010; Vafaee et al. 2009; Ardalan et al. 2009; Naghavi et al. 2009; Nevadeh et al. 2008; Karkhaneh et al. 2008; Karbakhsh and Zargar 2006; Muntazeri 2004; Ayati 2004; Rousari 2004). Moreover, they discuss RTAs in terms of morbidity, pathology, epidemiology, injury and trauma, and—unwittingly as the case might be—they ‘medicalise’ RTAs. What is otherwise a societal problem requiring public policy debate is thus presented from a medical or epidemiological angle—a ‘neglected epidemic’, as Muntazeri (2004, p. 110) calls it.⁹ With one exception (see Zamani-Alavijeh et al. 2010), these studies are based on hard data collected by hospitals and traffic authorities. They conceptualise driving primarily as a set of skills or a form of performance and, as a result, disregard the possible significance of perceptions, attitudes, culture, law, history or forms of regulation for driving habits.¹⁰ In addition, they disregard the body of social-scientific research that examines the complex relationship between the automobile, which is a form of technology mediated socio-culturally, and driving, as a socio-cultural behaviour mediated through said technology (Urry et al. 2005; Urry 2007; Miller 2001; Evans 1991; Neal 1985; Lewis 1980; Dettelbach 1976). One objective of this study is to bring some balance to the debate on RTAs in Iran by highlighting driving habits as a complex behaviour informed by cultural as well as legal and technological processes. Through the historical interconnectivity of both law and culture, this chapter will also pay attention to the historical context of Iranian legal culture.

In the following pages, sections 3.1 and 3.3 describe 20 open and 15 semi-structured interviews conducted to explore how Iranians perceive and describe their driving habits and how they experience the traffic problems in their country. Sections 3.2 and 3.4 places the results of the interviews in a socio-cultural and historical context, examining the impact of the arbitrary exercise of power by successive Iranian states on the formation of a type of individuality and sense of community which is hostile to the state (and to state law and regulation) and oblivious to the needs of the larger society. Above, I have made references to Iranians and Iranian culture in sweeping terms. Iran is an ethno-culturally and linguistically diverse country, consisting of a large number of ethno-cultural groups including Persians (who constitute the majority at about 60 % of the population), Azerbaijanis, Kurds, Lurs, Arabs, Baluchis, Turkmen, Turkic tribal groups such as the Qashqai, Armenians, Assyrians, Iranian Jews, Georgians and other small ethnic groups. In order to minimise issues arising from the internal diversity of Iran, this study will limit its scope to Farsi-speaking urban regions—to the cities of Tehran and Shiraz. It will also focus on traffic accidents in urban areas rather than on highways between cities.

This section presents two sets of interviews conducted in Farsi (Persian). The first set is based on 20 in-depth interviews conducted by the author, each about one hour long, and held in Shiraz, Iran’s sixth largest city (population 1,227,000) in June 2010. The second set consists of 15 semi-structured interviews (each about 45 min) conducted by Mr Shahrad Nasrolahi Fard specifically for this study in Tehran in December 2010 and January 2011. The interviews were recorded and the following is based on the analysis of the recordings.