A Study of the Consolidation of Islamic Law and Modern Western Law in the Iranian Penal Code
There is a truism that “there doesn’t exist in the modern world a pure judicial system formed without exterior influence” (Arminjon, Nolde, and Wolff 1950: 49, as cited in Palmer 2007). According to this axiom, no nation’s laws can claim to be purely indigenous. The Iranian law is no exception. The two main codes—the Civil Code (enacted in 1928 with no major changes following the Islamic Revolution of 1979) and the Penal Code (first enacted in 1925 and then replaced by post-revolution codes)—contained mixed provisions borrowed from various systems.
In the following two sections, I will discuss the simultaneous influence of various legal systems on these two main codes.
The Civil Code
When enacted in 1928, the Iranian Civil Code was derived in part from the civil law tradition (mainly the French Civil Code of 1804, known as the Code Napoléon) and partly from the Islamic law tradition. The former, however, was not imposed by Napoleon’s victorious armies (as was the case in Netherlands, Belgium, Italy, and so on) but through voluntary reception (as was the case in Romania in 1864, Portugal in 1867, Spain in 1889, and so on). Thus, the Iranian Civil Code, although generally regarded as based on Islamic law, has some civil law in it.
Because the private law sphere—including family law (marriage, divorce, succession) and, to a lesser extent, the law of obligations—had the outward appearance of a pure Islamic law system, the Civil Code has undergone few changes since the Islamic Revolution in February 1979.
The Penal Code
Although Iran’s private law had the outward appearance of an Islamic law system, its criminal law had the outward appearance of a civil law system. When Iran first codified its Penal Code in 1925, the code was mainly derived from codes of Western countries, particularly the French Penal Code, with hardly any influence from the Islamic Shari’a.
In fact, Iran was not the only Muslim country to abandon Shari’a. Throughout Muslim history and in many Muslim countries, Shari’a remained strong in the field of family law and, to a lesser degree, in the field of contracts; however, its influence has been very small in criminal law. In a great number of Muslim countries, criminal law has been one of the first branches of the law to be replaced by other criminal codes, without any real juristic justification given, apart, perhaps, from the observation that because the “ideal society” intended by Shari’a does not exist today, Islamic criminal law should not be enforced until such time as an ideal society comes into existence.
Because the Penal Code of 1925 was regarded as un-Islamic, the Islamic government that took power after the Islamic Revolution of 1979 decided to “Islamize” the code. So, after some of the code’s provisions were abrogated at different times, the Penal Code was totally abrogated by the enactment of a new penal code. Parts of the new code, known as the Islamic Penal Code, were enacted at different times, first in 1982, then in 1991 and 1994, in 1996, and finally in 2013.1
There were, however, at least three areas of criminal law in which total change was not possible. One area related to the procedural aspect of criminal law. The second related to the general principles of criminal law. The third related to particular crimes not dealt with by traditional Muslim jurists. I will discuss these three areas in three separate subsections.
Apart from certain general recommendations on “disciplines of litigation” (ädäb ul qadä), there hardly exist “detailed” rules of criminal procedure in traditional Islamic law. So, apart from certain abortive attempts to make changes in the criminal procedure code (for example, to limit appeals, to rename the courts, or to abolish the office of the prosecutor), few changes could be made in the pre-1979 criminal procedure code after the revolution.
General Principles of Criminal Law
The division of criminal law into a “general part” and a “special part,”—which is more clear-cut in the civil law system, as opposed to the common law system—was not very well known to traditional Muslim jurists. Medieval books on Islamic jurisprudence mainly put their emphasis on discussing particular crimes, without dedicating a special section to detailed discussion of the general principles of criminal law. In fact, many other ancient systems followed this practice, including the old common law. So, without detailed rules on the general part of criminal law in traditional books of jurisprudence (fiqh), the Iranian legislature had to turn to other systems—particularly the pre-1979 Penal Code, which was based on the French Penal Code—for effective legislation in this area.