'Persia and the Persian Question by the Hon. George Nathaniel Curzon, M.P.' [‎452] (511/714)

452
PERSIA
Twofold
division
of Law
In a country where the judicial and executive functions of
government are so constantly combined and confused, it behoves
me to give some account of the law and its administra
tion—a subject to which I now turn. It is well known
that the law in Persia, and, indeed, among Mussulman
peoples in general, consists of two branches: the religious, and
the common law ; that which is based upon the Mohammedan
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 cir
cumstances 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 Koran; of
Khar or 0 P^ n ^ 0ns Twelve Holy Imams, whose voice in
Ecciesias- the judgment of the Shiah Mohammedans is of scarcel} 7
,uul Law 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 juris
prudence that the famous juris consulti did with the Common Law
of Home, 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 mullahs, i.e. lay priests and
mujtaheds, i.e. learned doctors of the law, 1 assisted sometimes by
Icazis or judges, and under the presidency The name given to each of the three divisions of the territory of the East India Company, and later the British Raj, on the Indian subcontinent. of an official, known as
the Sheikh-el-Islam, 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 Sadr-el-Sadur, or Pontifex
Maximus, a dignitary who was chosen by the king and placed
1 In Malcolm's time there were only five mujtaheds in all Persia; hut the
number is now much less restricted. A mujtahed must be the possessor of an
ijazeh or diploma from another mujtahed, who enumerates therein his own cre
dentials, and states that the recipient is learned in the laws of Islam, and com
petent to expound and practise the same. Most of the mvjtaheds of Persia
have received their diplomas from the most eminent jurists of Kerbela and
Nejef.