3381891

Sources of Law under English, French, Islamic and Iranian Law: A Comparative Review of Legal Techniques Author(s): Parviz
Owsia Source: Arab Law Quarterly, Vol. 6, No. 1 (1991), pp. 33-67 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381891 . Accessed: 03/04/2014 10:16
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SOURCES OF LAW UNDER ENGLISH, FRENCH, ISLAMIC AND IRANIAN LAW A COMPARATIVE REVIEW OF LEGAL TECHNIQUES
ParvizOwsia*
INTRODUCTION
Anycomparative studyinvolvingseveral legalsystemspresentsspecialdifficulties both n the expositionof actualprinciplesand rules and in the analysisof the underlying concepts. These inherent difficulties are compoundedif there are fundamental differencesin approach to the noiion and the sourcesof the lasvand, consequently, to the treatment of legaltopics. Out of the fourlegalsystemschosenherefor a comparative review,Islamic,French and English law have evolved from completely different origins and developed markedlydistincove features.Islamscand English law have mainlybeen, and have to a greatextentremained,introspective and self-contained, whereasFrenchlaw has heavilydrawnon the revivedRomanlaw as supplemented by medievalcustomsand modifiedby liberalideasandscholarly worksthroughthe periodof Renaissance going into andafterthe FrenchRevolution of 1789.Iranian law, by contrast,hasbeen, siIlce the Constituiiorlal Revolutionof 1906, a hybridproductof the fusion, and at imes juxtaposition, of Islamic, Shfah, and Frenchlaw. After the Revolutionof 1979 and the consequentchangeof the regimein Iraninto the IslamicRepublic,the structural patternof the law in substantivecivil mattershas remainedalmost intact, but the concepiionof and the approach to the law and its sources,as well as the composition and functionof the legislature and judiciary, have radically changed. The fourmainSunnischoolsshowdifferences on detailsbut sharecertainbasiccommonfeanares whencontrasted withthe TwelverShlzah as the mainSluKah schoolwhich is the officialfaithm Iran.At a higherlevelof abstraction, Shitah and Sunn1 law show, despitetheirdifferences as to detailsor certainmethodological principles,a common configuration whichmakesit possibleto referto Islamiclaw as an overallsystem. Frenchand Iranlan law arecodifiedbut Englishlaw is not, thoughthe technicality of codificationin itself is not a determining factor, as the Americanexperienceof codificationdemonstrates.English law, notwithstandinga vast post-WorldWar II legislaiive production,remainsbasicallyjudge-madeand continues to be case$ PhD, London. He is an Iraxiian lawyerwho formerly taughtcomparaiive commercial law and civil law at the Facultyof Laws, University of Tehran,and practised law in Iranup to 1979. He is presently engagedin independentlegal consultancy and comparative researchwork in Paris and London. This articleis an adaptatonof a chapterin the Preliminary partof a largeworkentitledFonnation of Contract a Comparative Studyunder French,English,Islamic andIranianLaw to be published,in some 800 pages, by Graham and Trotmanin 1992. The authorwishesto acknowledge his indebtedness to McKenna& Co, e firm of solicitors,who have kindlyprovidedhim a long periodof iinzewith office facilites in LondontQ carryout his research work,including the preparation of the presentariicle.
throughdecisions growthof judicial the considerable to despite law, continues French volume, orientated. significant increasingly their therefore, present century and the out French and English law, loz, i.e. statutorylaws. la approaches towards respectlve gravitate each other throughtheir but remain, on the one hand, close to come, complementary, them by makig decisions judicial has enjoyed and legislation to Iranianlaw, in comparison, and has orientation. in distinct hand, source other the on from its judicial negligible,contribution and practically least, not, in relativeterms, been the have writingswhich juristic on primarily Shltah,and French nourished partly owing to its Islamic, notwithstanding, This law has developed extensive. laws, Iranian statutory voluminous its to and has due and partly origins that it now vergeson over-complication albeit product system, the is a sophisticated into confusion.Islamiclaw, generally,supplemented into thrown been respects many in have gradually of religiousjuristswho work of generations in its primarysources, the of scatteredrules contained originally the are the narration systematised and and the Traditionswhich of the Imams. God of Word the as also the Koran Shlzahs, i.e. the Prophetand, for the debt, if at all, minimal a thewords and deeds of but of our submission in owes system, legal a law, as Islamic at detailed process. forarriving judicial to techniques methodological in reveal, law of nature all cases andIslamic English aredue to theindividual which similarities interesting in termsof such certain rules, underIslamiclaw;whereas, Traditions many to French and Englishlaw under law is, even today, closer Iranian practice, in as employed technicalities the sourcesof the to Islamiclaw. than provideonly a sketch of first shall we article In the present to the ensuingcomparative systems sply as a lead-in the formal sources to the legal four the under law contributionof means of such then assess the relative discussion a study of the technical to proceed and law of the of the law and methodevelopment on the interpretation thereunder concentrating development, of legalgrowth. as instrumentalities to the subject, devices introduction dological analytical an as serve to opons and The articlebeing intended studiesandpersonal background and aremadefootnote-free discussions in a bareoucline. are thoughts presented
SUMMARY OF SOURCES SYSTEMS UNDER THE FOUR LEGAL
34
LAW QUARTERLY ARAB
Meaningsof "Source" Various one meaning.It denotes for the law, has more than used when law. Sometimes source, The term such as the Koranfor Islamic system, a of precedent fount judicial as the originating of the law is meant,such takenas referring reservoir, basic the body, today the main in plural, it is generally hierarchy,such as structural in Englishlaw. When employed a in arranged authorities The to the totalityof rules and writingsfor Frenchlaw. decisionsand doctrinal system judicial legal a custom, under legislation, maintainedfor various souces order of priority formally
SOURCESOF LAW- A COMPARATIVE REVIEW
35
may not correspond to their respective actualfuncisons,such as is the case today of Iranian law. Source may also refer,underany of these legal systems,to an originally alien influence,such as mercantile customsfor some commercial aspects of English law)Roman law for someinstituiions of Frenchlaw, pre-Islc usagesfor some preceptsof Islamiclaw) or Frenchand ShlCah law for institutions of Iranian law. Furthermore, source maybeused yetin a different sense,indicaiing where a ruleor a legalargumentation is taken from,beit a law,a caseora treatise. We shalluse the term, depending on context)with reference to whatactually constitutes, or hascontributed to, the totality of the lawunder any of the fourlegal systems as it hascometo stand today. Various sources of the lawwithinanygivenlegalsystemmayfall under two or more general categories, suchasprimary, secondary andsupplementary sources. No setpattern willfit all systems alike; rather, categorisation of sources shall have to be made withdueregard to characteristics features of eachsystem. Presentaiion of the sourcesof the law for the four legal systems essentially basedon the follllal orderof ascendancywith some at hand is excepiions to be made and mentioned where appropriate. When compared with the actual contribution of various sources underany givenlegalsystemto the development ofthelaw,thesaidorder changes andinvariably shows a disparity, albeit ln different degrees. The fourlegalsystems underreview present, as theystandtoday) fourdifferent patterns according to therespeciive formal arrangement based on a descending order of authority of sources. The followirlg simplenomenclature of sources under each system is the product of a detailed studyconstitutirlg in itselfa paperrurming the length of thepresent article. English Law Under English law)sources of thelawmaybe classified mtothreecategories: (1) Prunary sources, whichconsist of: (a) Legislaiion, whichnowalsoincludes European Community laws;and) (b) Judicial precendent, which nowincludes binding decisions of theCourt of Jusiice of theEuropean CommuIiities (theEuropean Court of Justice); (2) Supplementary sourceswhich, next to primarysources,have a binding forceandcomprise: (a) Custom, as considered in lrarious contexts; and (b) Books ofAuthority, being certain authoritative accounts produced over past centuries; (3) Ancillary sources withvarying degrees of persuasive force,whichmaybe said tO COIlslSt 01: (a) Non-binding judicial decisions of Englishcourts or judicial decisions of foreign common-law courts;
*
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(b) LawReformrecornmendations; (c) Legalwritingsandunofficial compilations; and (d) EuropeanCommunityguidelinesand decisions not being Community laws. FrenchLaw Sources of French law may be set in one consecutiveorder accordingto the degree of the formal binding force bestowed on them but, in terms of their respectiveactual significance,juristic opinions would assume a higher position almostnext to the law. (1) Enacted laws(la loz). (2) Judicial precedent (la jurisprudence), of whichonly a smallfraction,being the decisions of the plenary sessionof the Cour de cassation, is bindingandthe rest have,technically, only a persuasive force. (3) Custom(la coutume), whichat a certainlevel has a bindingforce. (4) Doctrinalwriting(la doctnne), which, in theory,is only persuasive but has in practice contributed muchto the development of the law. IslamicLaw In Islamiclaw, whetherSunmor Shl'ah,sourcesof the lawmayfirstbe grouped into two broadcategories: Conventional and Supplementary sources. Theconventional category. The conventional category generally termed"scripture" or "text"(nass),consistsof the following: (1) Primary sources: (a) The Koranas the Wordof God;and, (b) Traditions (sunnah), beingunderSunmandShl'ah lawthenarration (hadtth or rawayah) of the wordsand deedsof the Prophet,andunderShi<ah law alsoof Shi'ah Imams; (2) Secondary sources: (a) Consensus(iima')of jurists over a given issue in a given era, which differsin significance under differentIslamicschoolsbut, generally,itS authority is consideredto be in se for the Sunnis, while for the Shfahs its authorityis derived,in theory, from an assumedconcurrence of the Absent Imam; and (b) Certainlogical or rationalprinciples(unil al-'amaliyyah or al-'aqliyyah), on whichIslaniicschoolsdiffer,the notabledifference being, when oversimplified,thatlogicalanalogy(qiyas) is permitted in Sunnischoolswhile it is forbiddenin Shi'ahschool which in its place appliescertainother "rational" principles.
REVIEW SOURCESOF LAW- A COMPARATIVE
37
to consist maybe considered category Thesupplementary categoty. supplementaw 7she of the following: of detailed the development the agesinfluenced whichhas through (1) Custom, law. or Shi<ah, Sunm whether rulesof Islamic, to eachSunm which,according rulings andreligious commentaries (2) Exposes, the respective or influenced supplemented or the Shfahschool,haveshaped, law. century thoughtsand writingssince the late nineteenth (3) Reconsiderational them to bring law of Islamic rules on age-old puttingfreshinterpretation thereof formulation legislative and subsequent needs into line with modern and Arabcountries areasof Sunnlor Shiahlaw , respectively, in certain Iran. Law Iranian of 1906have Revoluiion of thelawsincetheConstituiional law,sources ForIranian phaseof the laterperiodof the overtwo eras:In the developed to be considered period 1979,andin the current of February eraup to the Revoluiion Monarchical Republic. theIslamic under regimesources orMonarchical Consiitutional theformer, 1979.Under UptoFebruary pattern: couldbe putin thefollowing developed of thelawas finally consistg of: sources, (1) Binding laws; (a) Statutory Court; and of the Supreme session of theplenary decisions (b) Judicial levels; at certain andusage (c) custom thefollowing: comprising sources, (2) Persuasive wriiings; (a) Doctrinal law;and Shltah, andIslamic, (b) French been notingthattheyhavenot sufficiently in general, decisions (c) Judicial or evenreported. developed phaseof underthe institutionalised Republic, 1979.In the Islamic As of Februa?y 1988,sources 1979till winter1366/early fromearlywinter1358/late Islamicisation laid sources,regulations of the law came to be a mixtureof pre-Revolutionary drawnfrom Shfah law) generating down by new organsof Stateand materials as of early1988 wasenhanced The confusion andconfusion. contradiciions certain (walayat-i Tutelage" of his "Absolute the principle enunciated when Khomeiny to be hazkamat) of State"(maslahut-i and the doctrineof "Expediency mutlaqah) until wasapplied Theprinciple discretion. absolute at cheJurist-Leader's determined in June1989. his death in 1989 of 1979as Amended of the Constitution notingthe provisions Presently, law of Shltah supremacy the formal andnotwithstanding factors, andotherrelevant of the of thesources pattern chaotic thesomehow under theConstitutiorl) proclaimed order: lawmaybe giventhefollowing
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ARAB LAW QUARTERLY
(1) Bindingsources,consisting of the following: (a) Commands andviewsof the Jurist-Leader whichstilltheoretically runover allothersources butis indirectly modified bytheformal creation, under1989 Constitutional Amendments, of the Councilof Expediency of State; (b) Existing and adoptedlaws and legal provisions,consistingof most of the pre-Revoluntionary laws, legislativeresolutionsof the now defunct Revolutionary Councilcovering the earlier monthsafterthe Revolution till autumn1979 when it was dissolved,and subsequent laws passedby the Islamic Parliament (Mailis) andafflrmed bytheGuardian Council subject, in casesof conflictif nowarising between theMailisandtheGuardian Council, to the overriding authority of the Councilof Expediency of State; (c) Shlzah law, as presentedin reputable worksand juristic"ruling" (tatawt; pl.), in so faras it has not beenincorporated in formallegislation; (d) Judicial decisionsof the plenary sessionof the Supreme Court;and (e) Customand usage,but with a diminished role. (2) Persuasive sources,which, notingthe absenceof a judicial precedent exceptas aforesaid, consistsof the following: (a) Doctrinal writings, bothon thepre-Revolutionary lawsand,to a muchlesser extent,on the lawsadoptedafterthe Revoluiion; and (b) French(and,to a muchlted degree,otherWestetn) law,partly in so faras it consiitutes theoriginof a poriion of thelawstillretained in forceandpartly due to the involvement of Iranin a myriad of internaiional liiigaiions.
ASSESSMENTOF RELATIVECONTRIBUTION OF FORMALSOURCES TO THE DEVELOPMENT OF THE LAW
Arrangement of sourcesaccordingto their formalbindingforce is not necessarily reflectiveof the actualorderof contribution they have madeto the development of the law undera givenlegalsystem. Legislation ranksfirsttodayin providing the greatestvolumeof the lawsunderall thethreenational systemsbeingreviewed here;and,in fact,theactual roleit nowplays is generally commensurate withits contribution. Butthis is not sufficient to explain its rolein all the systems.
Role of LegislationunderEnglishLaw: Case Onentation

supplementary
English law stands out among the three nationalsystems under review for the functionof its legislation.True that legislaiionhas been the main instrumentof reformnow for over a century, has creatednew areasin the law in recent decades and is proving to be the most productivesource of the law today, yet the overallapproachto statutorylaw is rooted in and affectedby the consciousness of the continuing roleof judicial process.Exceptforhighlysophisticated and technologically-orientated nationalenactments and European Community laws,

39
the statutorysphereof the law directlyconcernedwith the commonsocial structure andits persistence.This can be noted approach revealthe influenceof this pragmatic and in the novel areasof the law. both in the so-calledtraditional Areas. In traditionalareas, statutorycompilationof the sale of goods Traditional providesa good example. Sale of goods was, in a sense, codified first under the Sale of Goods Act, 1893 and then re-enactedunder the Sale of Goods Act 1979. judicialpast. Rather,both NeitherAct, however,proveda breakwith the respective and appliedin the light Acts preservedthe continuity,and eachhas beeninterpreted in approach the basicdifference case-law.This, in fact, constitutes of the background as we shallsee. codification with Continential in comparison Novel Areas.The laws adoptedin novel areasof development such as on Welfarefields are and technological state, consumers'protection,fair trade,environmental the rules not much different,in legislativetecEique, in the mannerof formulatmg and in details envisaged to correlateto fact situations, from the statutes passed areas. in traditional or otherwiseof of Case-law.It is not the length or the comprehensiveness Influence in drafting,influencedby contemplation statutes, but the concreteand pragmatic case-lawpractice,which distinguishesthe Englishlegislativeapproach- and in fact abstraction conceptual thatof commonlaw systemsin general fromthe Continental enactment,of whichthe Codesarestrikingexamples. in almostany statutory sourceof Englishlaw,in termsof its overallcontribution Thus, the most significant to and influence on the legal system as a whole, is still case-law rather than legislation. Examinationof Islamic Law changes,be tested The samecriterionas appliedto Englishlaw may, givennecessary schools. When the follllal orderof Islamic for Islamiclaw, whetherSunnior Shlzah of the respectivecontributionof in appreciation sourcesof the law are re-exaniined of any school, certainsourcesformallyplaced the sourcesto the actualdevelopment in lowerecheloncome to the fore. Needless to say that the Koran,consideredthe God-given Verses. ScantyNormative constitute Verses(Ayatal-aFkam) uppermost,but the normative remains law, formally only and provide Verses) of over 6,600 500 out Koran (some a small portionof the as any school law under rules of the of detailed a fraction of the overall body eventuallydeveloped. rawayat; pl.) in spite of the (ahAdlth, Traditionsas narrated of Traditions. Amplitude under (which is in a way akin to the question of reliability question of authenticity times)havemadethe greatestcontribution in Medieval Englishlaw of case-reporting Sunnl to the developmentof Islamic law. Their significancefor the Traditionalist
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schools,such as Miliki or hnbali, or Traditionalist Shi<ah trends,such as Akhbari, is obvious.The vacuumleft by the few generalprinciples,or scantyand dispersed rules,of the Koranon any given legaltopic has been mostlycoveredby Tradiions. Even in the RationalistSunni schools, such as Hanafi or ShafiE,or under the RationalistShltah trends, such as IjtihAdl,Traditionsprovide the bullc of the bindingscripture(na$) againstwhich "reasoning" and "rational principles" would not in theory,be applicable. This brings,in broadoudine,Islarnic lawcloserto Englishthanto Frenchlaw.
"Particular2} Nature of Traditions. Anotherfactorfurtherboosts this afflnity.More often thannot, a Tradition concerns,like an Englishcase, a pariicular fact-situation by recordingan answergiven to a specific quesoon or a remedyprovidedfor a specificgrievance.It usuallyrelatesthat a personhad such a quesiion,or problem, or grievance,or dispute. . ., and went to the Prophetr the Imam,in the case of the ShlCahswho gave such an answeror ruled for such a remedy.The answeror the remedygiven providesa bindingrule, the sameas a courtjudgment does in an Englishbindingdecision.There are, of coursea many fine differences betweenthe two approaches. Thereis, e.g., no boundto the authority of the Prophetor, for the Shlzahs, an Imam.Whatever they pronounced, whetherdirectlyrelatedto the caseor of a generalnaturegoingbeyondthe issueposed,wouldbe equallybinding.Further, in theory,no subsequent, or higher)authority existedto changesuch a rule, except themselves in the chainof ShsahImumah. Yet)whichis of greatinterest,therewere certainwaysand meansfor modifying manysuch rules,as shallbe meniionedunder the next headingon the technical meansof development of the law. Ijma' (Consensus). In all Islamicschools,'sconsensus" (Ijma'),beingthe penuliimate
of the formal conventionalsources, has made, in our submission, a niinimal contribuiion to the bodyof detailedrutes.
A Wrong Stress onIJms'. A certainrecentexplanaiion of a Westernscholarly origln attachestoo greatan portance to IJma' as a sourceof Islamiclaw by maintaining
thatif the Koranand Tradiiionhavebeen established as primary sourcesof the law it is, after all, becauseof the consensusof jurists This is, we believe, at best an over-simplification and, in the finalanalysis,an inversion of causeandeffect. People are first bornto, or subsequently embrace,a faith and then somebecomepriestsor juristsof thatfaithto expressjuristic opinions.A pre-requisite for believlng ln a faith is an unquestioning acceptance of the a p postulatesof dogma.The first nvo of such postulatesm the case of Islamrequire,obviously,accepiingthe Koan as the Wordof God and followlngthe wordsand deeds of Mubammad as the Prophetof God (togetherwith, for the Shitahs,those of the "infallible" Imams).In prmciple, therefore, the respeciive authority of the saidtwo sourcesarenotsubsequently decided as a resultof the consensusof jurists;but such a consensusis automatically ensured in advance as a logicalconsequence of the fisdamentalparameters of dogmaimposed Dy prunary sources. Ijma' playedits rolein the earlystagesof the development of Islamlclaw whenthe
.
41
communitywas fairlysmall, eminentjuristsof the era were few and known and the views of all juristsconcernedcould be obtained.Thereafter its role was diminished and it may be said that it soon died out as an active sourceof the law for practical unpossibility of obtainingit. Pandectist and SomeModern Parallelsto Ijma'. It is interestingfrom a comparative standpointto find some parallelfor Ijma with a similarfunctionboth in Medieval Europeand in certainlaw-processing assignments of this century.In the Europeof the late fifteenth to eighteenthcentury, when the reshapedRomanlaw was being adoptedby scholarsto the changingexigenciesof the time and became, particularly in Germany,currentas ususmodernus pandectarum, a commonbasis would often be sought for a questionof law out of the views of certaineminentpost-glossators and referredto as communis opinio doctorum with an authoritative weight. In the USA, duringthe processof compilation of Restatement of theLaw on differenttopicsin the 1920sand early1930s,formulation of the ruleswas in generalbasedon the consensus of the scholarsand professionals takingpart in the draftingof the topic concerned. In the preparation of the draftby an UNCITRALCommlssion for the Convention on Contracts for the International Saleof Goods, 1980, the Commission adoptedfor its workingmethoda processof debateleadingto consensuson the text of each Article. RationalBasis of Ijma'.The commonagreement of recognisedauthorities in a given age workingwithin a given framework on a given topic of law obviouslyreflectsthe generaloutlookof the legal systemor the view of the academicor professional circle concernedon the point(s) at isslle. The currencyof the view unanimouslyreached derivesits force, we believe, from the dictateof comrnonsense. A system may hold sucha viewbindingandanothersystempersuasive, but this difference doesnot change the essentiallyrationalbasis of its relevantauthority.A metaphysical justification, as put forwardunder Shfah law, is felt necessarydue to, and in turn serves, an extra-legal cause,whichin this caseis the doctrmeof Imamah. Whatever the rationale or the justificaiion may be, consensusis but the essenceof doctrinal opinionsfinding a commoncoreOI expresslon. "Practical Principles". Principles of "reason", effectivelyusedfor praciical purposesas logicaldevicesfor the inferenceof detailedrulesout of primary sourcesandthe Ijma', whichareplacedlastin the formalhierarchy of conventional sources,havein factmade a contribution,at least in the Rationalist schoolsor trends, no less impressivethan Traditions.Mentionmay be made here, as examples,of the "&ee-reasoning" (ra'y) in Hanafischool, the praciicalor rationalprinciples(ual al-'amaliyyah or 'aqliyyah) in the Shafi'lschool and under the ShitahIjtihddttrend. We shall furtheramplify theircontribution in the followingpages. DoctrinalWritingsand JudicialDecisions underFrench Law Frenchand, up to the Revolutionof 1979, Iranianlaw show certaincommontraits. Under both systems, in contrastto English law, doctrinalwritingshave played a
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significantrole as an actualsourceof the law, while judicialprecedent,which has provedin its turna fertilesourceunderFrenchlaw, has failedto gainanysignificance underIranian law due to practical, as distinguished fromtheoretical, reasons. FrenchLaw and the CivilCode UnderFrenchlaw in the earlynineteenthcenturytherewas little roomin principle for juristicwritingsor judicialdecisionsto ensurefor eitherof them a positionas a sourceof law. The generaltendency,in fact, wasagainstbothof them. Napoleonmadea command,and the Codifiers wished,to promulgate a CivilCode which would be simple, clear, unambiguous and all-embracing not to requireany interpretation. The Code, as adopted, was a system in itself. But it was rather simplisticto cherish such an illusory hope for at least two reasons:Firstly, no law can answerall fact-situations, as it had akeady been provedby the Prussian Code of Allgemeines Landrech of 1794, which containedsome 16,000 detailedand fact-orientated articles.And, second,if a law is intendedto survivethe test of time, it shouldnecessarily respondthroughfresh interpretaiion to evolvingneeds of the societyunforeseeable at the tie of legislation. In the historical evolutionof French law, bothdoctrinal wriiingsandjudicial decisions hadalready provedrichsourcesfor the compilation of the Code. The Codifiers had heavilydrawnon pre-Revolutionary doctrinal productsrelatedto droit emt of Romanlaw originapplicable in the South andon judicial decisions of Parlements (lawtribunals) withrespectto droit coulumier of Franco-Germanic customary origindeveloped in the North. But as anyrevolution has the impetusof breaking awaywith the pastandestablish a new order,the legalheritage of the FrenchRevolution madecodification a new start andlegislation as the uniquesourceof the law. An interpretation or supplementation of the law, whetherthroughdoctrinal or judicial medium,wasconsidered derogatory to this principle;and it took a long time and initiallyshy effortsto overcomethis ideological hurdle,with the doctnne preceding judicial processon this course. Appearance of Commentaries Commentaries soon started to appearupon promulgation of the Civil Code and considerably developedin the course of the nineteenthcentury,rationalising the provisionsof the Code, poiniing out new directionsand suggestingsolutionsfor lacunnae, but all with an academic approach in the spiritof"pure"lawas it hadbeen the predominant attitudetowardsthe "written law"for centuries.Doctrinalwriters, at any rate,werefreerthanjudges. EarlyRestrainton JudicialInterpretation The courtswere,due to a strictconception of separation of powers,undera technical restraint. They weresupposedto applythe lawas it stood,rather thanmakeor shape the law which was an exclusiveprerogative of the legislature. Yet, they had to face new challenges not envisagedby the law or resolveambiguiiies or inconsistencies in
43
embark in eachcase, they wouldnecessarily the law. Beingobligedto enterjudgment at all times or remedyingthe defectsin, the law while pretending on supplementing, that they wereapplyingthe law. This process resembles the English judicial practice in improving on earlier precedent,but with one majordifference:The main sourceunder Frenchlaw was, and is, legislation,and judicialdecisionsgenerallywere, and are, lackinga binding instancewherea judicialdecisionof the plenarysession force. Evenin the exceptional as shall is binding,it has in its origina legislativejustification of the Cour decassation be mentionedat a laterjuncture. Harmonisationof JuristicWntings withJudicialDevelopments in Francehasturnedits attention of this century,however,doctnne As of the beginning to actual judicialdevelopmentand startedreferringto the totality of the law, i.e. positif, the statutorylaws as judiciallydeveloped,which is generallytermedle droit deliberations on generalprinciplesand to abstract law in action,in contra-distinction doctrinal expositionswith judicialdecisions,but has not rules. This has harmonised whichbecomesmore andjudicialapproaches quitebridgedthe gap betweendoctrinal study. consplcuous m a comparatlve
. . .
French and EnglishSupplementalSources Compared French legal scholarshave also had a great Contrary to their English counterparts, influenceon judicialdecisionsin differentwaysand for a varietyof reasonsof which the following may be mentionedin a nutshell: Commonuniversityeducationfor practitioners and judges;necessityof jurisiicexpansionof would-beacademicians, generalrules of the Codes and statutorylaws as the main source of the law; and, withoutbearingthe namesof judgesand the cursoryqualityof judgmentsrendered interruption,historical their argumentsin the case. Thus, despite Revolutionary to the development of the law has been contribution of Frenchuniversityprofessors continuousand of significance. Comparedwith any Continentalsystem, judicial decisions under English, or generallyCommon law, system(s) ascend far higher over doctrinalwritings as a source of the law. Name-bearingjudgments,separatestatementof concurringor dissentingopinions in higher collegiatecourts and full reportingof the details of cases, all contributeto making every single significantcase an erudite treatiseon scholarlyanalysis, some fine points of the law, no less impressivethan Continental but with a basic difference the formeris fact-related,usually pruned of abstract of an instance whilethe latterpartakes speculation andgearedto an existingconcrete termsandmeantto satisfyfuturecases.The intellectual exercise,is couchedin general is systems,as aforesaid, of judicialdecisionsunderConiinental anonymous character for this difference. alsoin partaccountable nature, Underany legalsystemjudicialdecisionsprovide,due to theirfragmentary juridique, or a piecemealsolutionswhich take a long time to grow into an institution "doctrine" in the Englishsense of the term. Moreover,they usuallytrail in behind events due to their remedial,ratherthan anticipatory,nature. When the pace of
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change is slow, anticipatory solutions may wait. But when the pace quickens, thereis a greaterneed for expeditiousadaptation. The task necessarily devolveson extra-judicial sources. Underthe English systemthishascaused,as ehereform process sincethenineteenth centuryshows and the present trend since World War II confirms,an increased legislativeintervention,but the continuityfor almost eight centuriesof judicial processhasinfluenced legislative formulations. Underthe post-Revolutionary French system,the course hasbeenthe reverse: Legislation hasprovided general formulations expectingjudgesto find all the solutionsin the Codes. Changing conditions sincethe earlynineteenth century whenthe Codeswerepromulgated havenecessitated judicial expansion of the law but the Frenchjudicialprocesslacked the basis its counterpart had under Englishlaw. Doctnne,in the French sense, suppliedwith its historical credentials the foundation anddirection. If English and French legal systems are less apart today than they were in the nineteenthcentury, with the expandingrole of and judicial developmentunder the latter, their legislationunder the former respectiveapproachesare not commensurately closer. Doctrinal Contribution underIranianLaw up to February1979 UnderIranian law before the Revolutionof 1979 doctrinalwritings, and not judicial decisions, constitutedthe main contributingsource next to legislation. The legal system, however, was as yet relatively too young to produce a vast legalliterature.Moreover,when doctrinal writings remain isolated and if the wholesystem does not draw upon them either in the legislativecourse andlor inthe judicialprocess, "importation" of the law becomes tempting as an easy substitute. Legislationhas had, since the 1906 Revolution,mostly a politicaldirectionand urgency in Iran.In the processof codification of the law in the late Qajar and early Pahlavl period,adoption of the earlyCodeof Criminal Procedure of 1912 and the early Penal Codeof 1916and then of 1926,heralded,and were to establish, the victory of the seculartrendoverreligiousradicalism. These Codesweresubsequently repealed and replaced.The first volumeof the CivilCodewas compiledand rushedthrough the Mailis in 1928 to servethe salutory political purpose of abolishing the Capitulatory System. Later,when the politicalsituationwas stabilised,the Commercial Codeof 1932, the secondand third volumesof the Civil Code of 1935, and the new Code of Civil Procedureof 1939 were passedwith some degree of None, however, except some partsof VolumesI and II of the Civil deliberation. Code, few instances under the Commercial Code, the tacticalintroductory part of the Penal Code to appease religiousobjections,and some otheroccasional examples,has shownmuch mgenulty or orlgmallty. Legalscholarship in the law-making processoperated morefor the importation of the law ratherthanits innovatory construction. For this reason,originating sources of Iranian lawduringits codification phasewere,in termsof theiractualcontribution to thelegalsystemas a whole, "external", mostlyFrenchandpartlyIslamic,Shitah,
* * * * . -
45
law. All criminaland commercial,whether substaniiveor adjactive,laws and civil civil of Frenchorigin, while substantive were secularand pre-dominantly procedure lawswere mostlyon Shfah law. Iranianand French DoctrinalWritingsComparedin Light of Judicial System wriiingsin Iranwereallalonggaininggroundandmakingtheircontribution Doctrinal to the exposition of statutory laws, mainly on various Codes, and discharging a function in terms of theoreticaldiscussions similar to that of doctineunder which French law but with some differences:First, contraryto French doctnne, graduallycame to be introspective,Persianjuristicwritingsnecessarilydrew upon the materials,and not alwayswith criticalthinking until late in the Constitutional period, of original sources of legislation, i.e. French or Islamic, Shfah, law. Second, they have been more in the nineteenth century's scholastic"pure"legal bases of the law. Third, they have traditionfor their disregardof socio-economic been and remainedmostly speculativein absence of a supportingjudicialprocess and case-reporting. IranianAdoptionof FrenchJudiciaryand Absence of Case Reporting power era was in principlean independent in the Monarchical The Iranianjudiciary modelledon the Frenchpattern.By the time the Iranianjudicialsystemwas taking its final shapein the earlyyearsof the first Pahlavimonarch,certainorigmalFrench conceptshad alreadybeen outdatedbut were still retaineddue to historicalreasons of powers. to the doctrineof separation rootedin strictadherence BurdensomeFunction of French Courde cassation was de cassation, What in France came to be the supremecourt of the land, Cour initially a tribunalattached to the legislaturewith a delegated power to control decisionswhich were the conformltyof judicialdecisionsto the law and quashing not complying hence its designationand function, the "quashingcourt". Even after the tribunalwas soon turned into a proper appellatecourt, it had to send back the case in which the decision was quashed to a lower court of the same rank as the one which entered judgmentto render a new decision. Only if this lower court would still enter a judgmentwhich, on second appeal, was again sitting this time in full chamber, or since quashed by the Courde cassation, 1967 in "Plenarysession", would its decision be binding. But, again, the case would be sent back to a chird lower parallelcourt to enter a formal judgment according to the view expressed by the "plenary session" of the Court. This costly and time-consumingpracticeunder the French system, though continued to be retained, was already exposed in the early twentieth century when the had been e.g., a system of revision Iraniansystem was taking shape. In Gerrnany, adoptedand retainedwhich would, like an Englishappellatedecision,requirea final judgmentto be entered.
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Impactof Burdenon IratiianSystem Iranian reformers, not notingthe burden,the changein the theoretical basisand the possibility of raiional improvement forshortening thiscumbersome procedure, simply copiedthe Frenchmodel.This, obviously,lirnited the rangeof productive decisions of the supremecourt, Dtvan-i Ktshvar. Moreover,in a countrywith a historical background unaccustomed to a regularjudicialprocessand with no experienceor oppornunity for relyingon decidedcases, the reportingof decidedcases would be limited to those reviewedby the "plenarysessions"of the SupremeCourt, and this also was generallyconfinedto reportingthe decisionsthemselvesdivorcedof the background proceedings and the facts involved.The by-product had a double shortcoming: First, at the level where, on trial, actuallive facts were considered and a judgment entered,decisionswerenot publishedfor the interested professional publicto see the casein its dynamicdiension. And, second,as a corollary, absence of publication wouldnot exposethe trialjudgeto the possibility of criticalappraisal of his decisionon pointsof law involved.The resultwas a ratherlow and superficial standardof judicialproceedingsand a lack of public interest, whetheracademic or professional, in such decisions. Even if some decisionsprovedof interest,one might have learnedof it through private channelsbut the file would not have been, as a rule, made availablefor examination.Judicialprecedent, therefore, proved as a whole a negligiblesource of the law and courts' decisionswere not held in high esteem. WorseniIlg SituationSince February1979 After the Revolutionof 1979 and the "Islamicisation" of the system, the situation got much worse. Criminal substantive and procedural Codeshave been replacedin 1982-83 with IslamicCodeswhich are almostverbaiimreproduction of some text booksandcommentaries writtenoversevencenturies ago. The sameold practice forpublishing the bindingdecisionsof the sCplenary session" Ofthe SupremeCourthas continued,withoutany measurebeing taken about the publicationof the decisionsof trial courts. But this has not been all. The wide discretionary powersgiven to the clergy,who in the main staffthe courtsas judges enjoyingformalauthority but withoutjudicialtrainingor experience, coupledwith uncertainty in many sensitiveareasof the law, have produceda great varietyof conflictingdecisionsas evidencedby the only availablesummaryaccountsin the Offzcial Gazette of "defaultjudgments" publishedfor the technicalpurposeof their formalnotification on absenteedefendants. Consequently, commentaries on pre-Revolutionary laws still in force, or on such laws as amendedor on laws passedsince the Revolution,continueto constitutea validcontributing source,supplemented by Islamicbooksof recognised authoritative standard irrespective of theirage.
47
andForcesof its Productivity Custom heremay,in the underreview legalsystems underthe different The roleof custom view. of points two from be considered treatment, comparative present influence, itssociological besaidthat,whatever it may outlook, First,witha narrow fourlegal the all under its presentrole as an activesourceof the law is lted already has it of the achievements is mostlythe heritage systems.Its contribution as of eachsystemwhichsiill keepsfunctioning, in the the history hadthroughout lawor the rulesof underEnglish or "conventions" customs" caseof "constitutional relations, commercial originunderFrenchlaw. Also ln international "customary" turnedinto affairs,wherecustomis held active,it has gradually mostlybanking andPractice Customs suchas Uniform mayadhere, to whichthe parties a pattern (now of Commerce Chamber by theInternational compiled Credits forDocumentary to a thereforeis in suchcasestransposed The roleof custom, in its 1983version). rules formulated of already fortheapplication involved of theparties tacitagreement as In mostcasestodayit is not thecustom origin. to havea customary whichhappen butthe source, is a creative which relaiions, commercial such,atleastin international m of the pariies andagreement andpriorrecognition thereof formulation conscious maunglt operatlve. allthefour under maybeseento beoperaiive view,custom upona broader Second, brings refersto themor indirectly wherethe lawspecifically in suchareas systems or the behaviour of "reasonable" the standard it into play, suchas in determining of the legalconsequences of termsin ascertaining lengthof timeor the significance of law", principles along"general too, custom, actsor facts.Internationally, certain juridico-judicial andshared withcoinmon be associated whichmayforthe purpose of lawnot to be a source world,continues of the "Western" andstandards practices suchas contexts otherdeveloping lawbutalsom certain onlyin publicinternational relaiions. commercial international of anyof in theformation its function forlongfiriished having therefore, Custom, to the in otherwaysto contribute continues underconsideration, the legalsystems of thelaw. development
. . .
TECHNICALMEANSOF DEVELOPMENTOF THE LAW
technique meansandwidely-used is the mosteffective In broadterms,legislation is legislation however, Since, circumstances. of the law to changing for adaptation other source, productive, most the se in been not the only, nor has it historically needsand somepolarised between to strikea balance havebeenemployed devices and certainty flexibility, and security change, and stability of societies: demands their of scope the on depending particularly and degrees, In varying adaptability. or had to takecareof this balance all systems with live situations, actualcontact an intellectual purely remained or letter dead become have would edicts their otherwise exercise. or scholastic to answers suitable at finding aimed anequilibrium, forachieving Thetechniques
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fresh questions,fit throughout the processof growthinto two inter-related general patterns:One, interpretation of the materialsavailablein primarysource(s)and, the other, methodological extension or restrictionof such materialsresuliing in additions,deletionsand modification of the rules. We shall brieflyconsiderbelow certainsalientfeaturesof such techniquesand comparetheir functionsunder the foursystemsat hand.
A. INTERPRETATION OF THE LAWAS A TOOL
Interpretation of the law, in the senseof a bodyof bindingrulesof whatever origin, providesthe dynamics of legal growth.If prohibited, the law will becomestagnant; and, if arbitrarily carriedout and applied,the law will becomeuncertain.Between these extremes,there are two inner limits which set the generalframe: Strict or extensiveinterpretation. In criminallaw, as a corollaryto the principleof nulla poena sinelege,strictinterpretation is appliedexcept underthe presentIslamicised criminal lawsof Iranas shallbe notedbelow.Allowing for reference to this exception, the discussion will concernprivatecivil law. ClassicalProhibition and its Futility Formalprohibition of interpretation is almostas old as the historyof the law; and, almostas old as thehistory of the law,it hasneverworked in practice. Prohibition does not need to be onlyon formalsources.Ritual-bound earlysocieties,wherecustomary practiceswere often regardedas being sacrosanct,would requireunquestioning observance of established rules. Questioning such ruleswould be a taboo, let alone interpreting them. The "law",in its broadnotion, would remainstaticandformal but the contentsof socialgrowthwould,throughimperceptible slowmeasures, work at the form from within until, as it frequentlyhappenedthroughout history, the form would become just a facadedevoid of an inner force. Ritual ceremoniesin pre-classical Romanlaw as in mancipatio and stipulatio, earlyforms of action under Englishlaw and the exegenctraditionalism underIslaniiclaw aboundin examples. All, however,show at the same te how variouslegal fctions, as teckical devices imposedby socio-economic factors,woulddevelopto get around antiquated, unfitting or cumbersome formalrules. In an advanced stageof legal history,the strikingexamples of expresscommands prohibiting interpretation, givenby Justinian of the Corpus juris civilis, Frederick the Great of the Prussian Allgemeines Landrecht andNapoleon of theCode civil des frantais, arethereonly to provethe futilityof sucha prohibition. Continuing Form ContentDivergence Yet, in a morerecent,andevenin current, history,therearevestigesof the continuing conflictbetweenapparently stableformsand actualchangedcontents.The French nineteenthcenturyapproach to judicialinterpretation of the Codes, the legislative

49
of classicalIslamiclaw in such fields trendsin Muslimcountriesfor reinterpretation and the erosionof the as familylaw and banking(thoughin two differentdirections) underEnglishlaw are but conventions formalpowersof the Queenby constitutional of the formof the rulesalongtransformation a few generalexamplesof the continuity of theirinnersignificance. Degree of Freedomto be Perniitted on the degreeof freedompermittedandthe differsdepending Utilityof interpretation contextwhereit is to be used. A distinction,for the purpose,shouldbe madebetween and judicialinterpretation. doctrinal Doctrinal Interpretation since shouldbe left free,evento the degreeof beingarbitrary, interpretation Doctrinal meritor demerit.Thus, if dependson its intnnsic or dissuasion its powerof persuasion and unfitting, is madeand provesunreasonable interpretation an unbridleddoctrinal of censorship placedon it will reflecta measure it will die out by itself. Any restriction underideologicalsystems. as experienced to curbfree reasoning Restrictionsin Iran of regime,discussion includethe caseof Iranwhere,underthe Monarchical Examples rightsof the peoplewere effectuallycensured, of Stateor constitutional the structure and where, under the present Islamic regime, even discussionof human rights is effectuallycastigated.Underneitherregimehave legal debatesbeen, exceptin short permittedon basic in politicalenvironment, "opening" intervalsdue to an occasional by Stateorgansof existingconstitutional issuesor actualinfringements constitutional principles.While, however,criticalexpositionof the basis of the law in other fields regime, this is not allowedunder the present was toleratedunder the Monarchical norms. touch Islamic it may where regime Islamic andexecution, arrest,exile, imprisonment applied pressure In additionto physical guillotine, a technical work the present scope of the fall beyond the detailsof which critical to cut wielded directlyrelatedto a reviewof the sourcesof the law, has been Rjtihad. of underthe doctrine (takha$us) and seculardiscussionsoff: "Specialisation" Anyonewho is not a memberof the clergyis classifedlay and any scholar,no matter is in principledenied the right of a Muitahid what his stand, who is not technically of the fact that this law expressingopnionson mattersof religiouslaw, in disregard affects every one of its is being imposed on society as a whole and fundamentally illustrationof the applicationof this theory is members. The best Constitutional on the of the currentIslamicConstitution providedby Principle96 (left unamended) of Councilas the designatedorganto ensurethe conformity workingof the Guardian Half of its members,thoughelected the law with Islamicnormsand the Constitution. from amongst"believing[Shltah]Muslim lawyers",are not counted at all for the quorum, let alone being given a right of vote, when the questionof conformityof
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the resolutions adoptedby the Mailis to Islamicnormsis at issue;the prerogative is exclusively reservedto the otherhalf of its members who shouldbe of Fuqaha', i.e. religious juristswithinthe ranksof the clergy. JudicialInterpretation When it comes to judicialprocess, interpretation of the law cannotbe left free as advocated for doctrinal interpretation sinceit involvesnot onlyexpression of opinions but the reachingof decisionswhich directlyaffect the positionof the people. The authority of any judicialdecisionis not primarily in the interpretation it contains, but in the application of the law to the individual caseconcerned. Such an authority is derived fromthe overall workingof the legalsystemandshouldbe exercised within reasonable parameters. If let loose, with unrestricted powersgiven to judges,there will be no certainty as to whatthe lawwouldin actionbe. An exampleis again to be found in the practice of the IslamicRevolutionary Courtsin Iransince 1979. The arbitrary "interpretation" put by "religious judges" (ikkam-ishar'; pl.) of these tribunals on certaingeneralKoranic Verses concerning "corruption on earth"or "fightingGod"has coveredan rangeof legal, ethicaland politicalacts and has resultedin heavy undefineable punishment, often execution, beingmetedout througha semblance of summary trialsin whichthe accusedwere effectively deniedthe rightof puttingup a defenceor even being legallyrepresented bya defencecounsel. Discretionary PowersunderFrench and EnglishSystems Unrestrained judicialpowers should be distinguishedfrom defined powers conferred on judgesundera legal systemwhich aims in its discretionary overallworking at the implementation of "therule of law".Frenchand Englishlegal systemsbestow such powerson judgesbut reveal,for respeciive historical reasons,certainmarkedly contrasting tendencies in this regard. Underthe Frenchsystem,a historical fearof judicial discretionary powersleading to arbitrary abuse, adherence to the doctrineof separation of powersand limitation of judgesto applyingenactedlaws have left in principle little room for judgesto move about. Compensatory factors,necessary for rational and organicdevelopment of the law, have been operativethroughtwo channels: Formally,throughexpress authorisation by the legislaturein defined statutoryinstances and, technically, through adoptionof an extensiveapproach to the interpretation of the laws as shall be mentioned below. Englishjudges,by contrast,enjoyrelatively wide discretionary powerswhichowe their origin partly to a historicaltrust in the judicial system and partly to the contribution of "equity" to "commonlaw",stncto sensu. Thoughequityhas turned into a well-defined body of rules, it has nevertheless left its ethicalimprinton the legal systemas a whole.This bodyof rulesbeingessentially "remedial", judgeshavea discretionary powerto grantor refusegranting equitable remedies depending on their appreciation of the conductof the parties.The safeguard against arbitrary exerciseof
51
this power has been providedthrougha two-sidedmechanism.Judges are, on the one hand, guided by enablingequitablemaximswhich have at the same time their restrictivei}nport;and, they are bound, on the other hand, by the doctrineof stare decisiswhich determines,be it at law or in equity, the generaldelineationbetween exerciseof such a discretion.This internal discretionand an unfettered a formulated criticismas a result of judgesto external is furtherboostedby the exposure mechanism of theirdecisions. of the publication Approachto Interpretation as the mainsourceunderthe Englishsystemto precedent of judicial The contribution of statutory the law, latosensu,showsits othersidewhenit comesto the interpretation with the Frenchsystem,certain lawsas the firstformalsource.Here,whencompared factorschangeplace. motivating English:Strict niistrustof legislationhas caused, in general, Under the Englishsystem, a historical a strict approachto be adoptedtowardsstatutoryprovisions.Until recent decades, legislationhas been an exception,an appendix,to the law as judiciallydeveloped; est strictissimae has it that exceptio and a well-knownage-old rule of interpretation of statutorylaws has The restrictiveapproachto the interpretation interpretationis. Act 1978 (replacingthe Interpretation been so entrenchedthat the Interpretation Act, 1889)providesfor inclusionof singularunder pluraland femalegenderunder male gender and vice versaunless the context may otherwiseindicate.A vestige of contractdraftingby an professional may also be noted in international this approach lawyerwherea clauseto the saideffect is often inserted,whilea Englishor American lawyerusuallylacks such a clausesince the need by a Continental contractprepared of legislation underthe Englishsystemof the significance is not felt. Withthe increase to expect a in new areas,it will not be unreasonable as a sourceof law, particularly of statutes. to interpretation in the strictapproach measureof relaxation French: Strict in nineteenthCentuly, Liberalin twentiethCentury under French law started, but for an opposite reason, with Judicialinterpretation of the Civil Code. Here, as contrastedwith English law, a strict interpretation the acme of legal achievement,and judges codificationthroughlegislationappeared Even doctrinalwritings were not to interferewith it throughtheir interpretation. greatcaution,adheringat times to throughoutthe nineteenthcenturydemonstrated growth. But as the the spirit of evolutionary a strict literalexegesisand abandoning valueof the Codecamein duecourse andeverlasiing of the perfection basicassumption of the Codebecamemoreliberaland extensive. to be shaken,interpretation By the beginning of the twentieth century the ground was already prepared of approachto judicialand doctrinal under French law for a majorreconsideration The trend, as a consequence,has changed.Legislativebroadformuinterpretation.
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lationhasin itselfbeenan invitation. The relative generality of the rulesas laiddown underthe Code, contrary to Englishlegislativemethod,often presentsan inherent elasticity whichpermits,withoutmuchneed for fictitiousdevices,for the rulestO be elaborated in different directions. The direction chosenhasbeen,as dictated by social forcesof growth,towardsexpansionratherthan restriction of interpretation for the purposeof the adaptation of the lawsto changing requirements. Englishand FrenchApproachesCompared The two legalsystems,EnglishandFrench,haveas a resultcomecloserto eachother in funciional termsthroughdifferent techniques. Respective developments of the law of tort underboth systemsprovidea strikingexample.WhileEnglishlaw has built it by starting fromindividual casesandhas arrived today,mainlythroughthe tort of "negligence", at certain general principles, Frenchlawstarted fromcertain verybroad principles, contained in justa few Articlesof the Code(1382to 1386,mainlythe first three)and appliedthem throughextensivejudicialand doctrinal interpretation to a greatvarietyof individual cases. This goes also to explainthe functionalclosing of the gap theoretically existing betweenthe two systems.As a rule of interpretation underthe Englishsystem,the "intention" of the legislator maynot be searched throughreference to Parliamentary debates. Under the French system, by contrast, it is permissibleto refer to travaux preparatoires, including legislativehistory, to infer such an "intention". The differencebetween these opposite initial rules are temperedby respective supplementary qualifications under both systems. Under the English system, the contextin whicha statutehas been enactedin termsof socio-econoniic reason,past lawsbeingconsolidated, or the "mischiei3' envisaged to be remedied, maybe takeninto accountin the interpretation of a statutory law. Underthe Frenchsystem,doctrinal and judicialdevelopments have established that the staticintentionof the legislator at the time of enactment is no longerrelevantbut what is important is an imputed intentionaccording to the presentrequirements arisingout of the application of the law. The result,underboth systems,equipsthe judgeto advance the lawin response to dynamic temporal needs. ExtensiveunderIranianLaw Iranianlaw before 1979 was followingthroughits doctrinalwritingsthe French trend of extensive interpretation of the laws out of the necessity of providing answersto currentproblems untouchedby the Civil Code and unremediedby judicialprocess. Since 1979, the attitudeto purely civil mattershas been mixed. Where a rule appearsin conflict with Islamic law, a limitationis theoretically ipso facto imposed;but where the rule is secular,then there is room in principle for wider interpretation. Two factors, however, help a thoughtfullegal scholar writingtoday in Iran to continuewith his independent consideredinterpretation: First, many issues of a civil nature, even in some sensitive Islamic areas such as "cost of money" (interest)and "limitationof actions"(prescription), are not
53
yet clear-cut; and, second, where there is an Islamic, Shfah, backgroundto a rule, there are often divergentviews among Shfah eminent jurists and time-worn "legal fictions" of which some may prove helpful to an oughtproposition.In an is discussion, all such elements have obviously to be objectivelyconsideredand exposed. Mixed underIslamic Law When it comes to Islamic law in its historical development, both manners of interpretationhave been experiencedeven to extremes. Of Sunnl schools, in of primary relative terms, the Hanafi adopted the most extensive interpretation (ra'y), while the hnball, and next to it the sources through "free-reasoning" Maliki, went the opposite way by strictlyadheringto the letter of the Koran and the provisions of Traditions. Among Shfah schools, the Isma'iliyyahadopted a meaningand its apparent of the Koranby disregarding completelyfree interpretation believingin an esotericinlaid sense of it, while the Akhbantrend of the Jatfariyyah The Sunni Shafi'lschool and the Ijtihadi schoolrejectedany independentreasoning. trend of JatfarlShfah school have shown, when comparedwith other schools and and formalisingthe rules of interpretation trends, a mixed attitudeby formulating "Scienceof Roots"('Ilmal-Unir)to which we undertheir respectivemethodological shallrevertbelow.
DEVICES B. METHODOLOGICAL
process.Legalsystemsunderreviewhere a rational involvesby its nature Methodology but they speak,it maybe said, the particularities methodological havetheirrespective samekind of languageonly if to expressdifferentconcepts. Logical Rules logic. It is suppleThe classicalcommonlanguageis a familiarGreek:Aristotelian andletters.Methodological suchasgrammar disciplines symbiotic mentedby affiliated differencesbetween the systems underrevieware not due to variantconceptionof rules, but lie in the respectiveselectivenessand measureof basic methodological application.This, in turn, is determinedby respectiveapproachesto the sources of the law as influencedby historicaland ideologicalfactors.The same is true also of the laws and judicialdecisions, which is closely gearedto the of interpretation selection and employmentof logical devices. The basic approachto interpretation may differ from one legal system to another,dependingon the respectiveessential features of each system as stated under the previous heading, but the technical show commonconceptualtraits. Legal systems are more at rules of interpretation varianceon the selective applicationof such rules, and not so much on the rules themselves.
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InductiveMethods Over-simplified Deductiveand Fjnglish French householdstatementthat the basic logical terms, it has become a comparaiive In lawit is inductive. w}le underEnglish underFrenchlawis deductive employed method rulesto be general sourceof the law contains contributing if the primary Obviously, it is system, French the to variousparicularinstances,as exemplifiedby applied equally is It be deduciive. that the logicalmethodused m such a processwill true to of rulespariicular consists law the of source contributing thatif the primary true the by as exemplified casesout of whichgeneralrulesare to be inferred, individual inductive.But this be will process a such in used system,the logicalmethod English at such Stopping operaiion. of a system's stepin the analysis onlyaninitialorpartial is of operaiion either of the technical over-simpliflcation stepwouldbreeda misleading a law as we shalltry to perhapsmoreso with respectto Englishthan French system; below. demonstrate Probed Approach French of its law by the end of the Frenchlaw carneto the stage of systematisation When origmalsources.The century,it drewon two actualand two intellectual eighteenth and ecntand the lattertwo werea reshaped anddroit coutumier two weredroit former of reasonanddoctrirzal on dictates as of the Renaissance law developed natural secular tings on the law. would require,due originalsources)droitcoutumier Out of these four historically of tribunals decisions judicial the and natureof scatteredcustoms tothe piecemeal and colleciion for method intluctive applyingthem, a greatuse of the (Parlements) Droi rules. general of body of variouscustomsinto an abstracted systemaiisaiion which in the eleventhcenturyof Digestum, on the rediscovery based iniii?ily ecrit, civilis, juns Corpus of component as the main materials alreadyavailable contained iniially underthe manner) moresophisticated much a in centuries over haddeveloped philosophical with thinkers and, later,legal then commentators handsof glossators, law and natural on later, and, It drew, along the road, on Canonlaw propensities. and praciical predominantly thanthe engrafiing a lot moreof jurisprudeniial mvolved Ages Middle the after law. Naturallaw when scornedcustomary jurisprudentially idealsof law, hadalready schoolembodying "ought" raiional a cameto developinto stageof the advanced was which on ususmodus pandectanxm nourished inductively jus commune. Romanlawandthe basisof Coniinental "received" and partlyphilojurisprudential partly technical, partly Doctrinalwrimgs were coutumier droit sources, theycoveredbothof the actualoriginal sophical.Technically, had they Jurisprudentially, and droit eerit, with a greater stress on the latter. in hand were they on droitecnt. Philosophically, almost exclusivelyconcentrated law. glovewith nanlral law anddoctrinal droitecrit,natural originalsourcesn The latterthreeinter-related host of as degrees,employedall logicalmethods well as a writings,had, in different Southern in law as an organicbody of otherdisciplines.At the level of application method.This apart, to the deductive exclusively France,droitecntlent itself almost
ss
when its materialswere used and other inferenceswere drawn through selective observationby legal thinkersto build and suggest an "ideal" and "natural" system of law, the process,it may be said, predorninantly involvedan inductive method. The doubtin ascribing predominance to a particular logicalmethodin such a sophisticated processcan be explainedpartlyby the complication of historicaltrends and partly by the workingof human mind. Any philosophical or jurisprudential-or, for that matter,poetical-creativity is rootedin a spectrumof experiences,observations and fragmented impressions.Lookedat fromthis angle,the processinvolvesan inductive synthesis. But this is not all. When it comes to production, often an illuminating flickerof thoughtor an intuitiveinsightsparklesa broad idea, or generatesa broad patternof coherentideas, as if adnihilum. Fromthis point on, the creativeexpansion andexpressionbecomes,if one wishedto labelit in logical terms,deductionof details fromwhat has alreadyassumedan a pnori natureas settled postulate(s).The same motionmay be ascribed,with due reservations, to the socialemergenceand growth of thoughtsand ideas. GeneralRules underCivil Code Codification in Francedrewselectively uponsuchwealthof productsas inheritedand formulated them in what are usuallyheld to be "general rules".This is correct,but ina strict sense and for the purposeof facilitating a broadtreatment.It is correctin thesenseof the universality of application of the rulesto whatever fact-situation which may fall within their respectivepurview.Otherwise,there are only few rules which are generalenough to constitutebroadprinciples, such as those on the follllationof acontractin generalrequiringconsentement (mutualassent),on actingin accordance with bonnes moeurs (goodmorals)or in bonne foi (goodfaith)in makingor discharging a contract,on civil responsibility in general,and the like. Compared with BGB and Majaltah The German CivilCode,Burgerliches Gesetsbuch, compiledalmosta centurylaterthan its French counterpart and put into force as of the beginningof 1900, is, with its extensive GeneralPart, at a higherlevel of abstraction and intellectualformulation than the FrenchCode. The sameis true, but to a lesserextent, of the of the late eighteenthcenturyin the OttomanEmpirewith its generalpart Majallah or the Jordanian Civil Codeof 1976and the Codeof CivilTransactions of the UnitedArabEmirates of 1985 followingthe Majallah in this respect. Detailed Rules: Comparedwith FnglishLaw When it comes to the rules regulating specificjuridical institutions,such as marriage and divorce, property,nominatecontracts,succession,etc., all these compilations, when they cover any such topics, contain rules which are mostly detailed and pariicular. The differencein approachto the law lies in the fundamentalsof the respective systems.French,German andJordanian Codes,e.g., producea cFordinated
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body of rules in a systematic fashioncoveringdifferent"juridical institutions" and enjoin,undera fundamental principle operating overthe rulesof the Codes,thatsuch provisions be universally applied, whileinstances of suchco-ordinated legislation is rare underEnglishlaw. Moreover, even Englishstatutory laws,beingmadein the matrux of a case-law tradition, go into greater detailsthando theirContinental counterparts. Englishlaw in traditional areasgovernedby judicial precedent,such as contract and tort, is farfrommakinginter-related formulations in a generalpattern,but proceeds insteadon a case-to-case basisoftenon the line of a pragmatic social"convenience". EarlyApproach Earlyin the nineteenth century,whenthe FrenchCivilCodewasfreshandconsidered theembodirnent of a perfectideallaw,the roleof juristic interpretation was,in relative terms, more analyticaland that of judicialinterpretation was more mechanical. The former involved and the latter requireda deductivemethod. But as both were developing,the imperfectionof the Code became apparentand the early enthusiasticex-posl facto justifications subsided. In the course of the nineteenth century, as social relationscontinued their dynamic growth and became more complicated,legal scholarsand judges alike came to note that simple slotting of factsinto pre-cast ruleswouldnot do. SubsequentDevelopment Scholars hadto go beyondexposition andjustification of existingrulesandjudges often hadto put together various rulesin orderto, initially,inductively arrive at a synthesis applicable to a freshsituationunforeseen by the Codeand, then, deductively apply it to the caseat hand.This, in itself, created,respectively, a parallel doctrinal source with its generaltheories,requiringdeductivemethod of application to individual cases,anda judicial sourcewhichmethodologically involved,inter alia, likeits English counterpart, an analogical extensionof the rule under one case to anothersimilar case. Furthermore, a host of amendingor supplementing statuteswere gradually promulgated whichhad to be takeninto account.Thus, in the presentcentury,the respectivemechanics of the development and of the application of the law, with a reciprocal interaction, havebecomemoresophisticated thanappears at first sight as a resultof the universality of the provisions of the Code.In development of thelaw, all methodological devicesareemployed. In application of the law, the processstartswith the primary assumption of findinga universal ruledeductively capable of covering the particlllar caseat handbut, in practice,soonmovesalongothermethodological lines in searchof solutionif the caseat handmaypresentnew dimensions. FnglishLaw: DfflerentPermutation of Methods Englishlaw goes throughthe samekind of processbut in a differentpermutation of methods.Particular note shouldbe taken,when dealingwith the Englishsystemin such a context, of the conceptof law. Apartfrom the restricted denotation of the
57
term "Law", such as when it is used as a synonymfor a rule or a principleor in designationof a category or branchof legal study, it stands, in its wider sense, for two distinct concepts: One is the totality of actual rules and the other is an abstraction aimlngat perfection.A Continental juristwould associatethe first with the posttive lozw and the second with an ideallaw. An English lawyer would not usuallyemploysuchexpressions exceptin a jurisprudential treatment of the law. Yet, obviously,he differentiates the two conceptsand seeks recourseto the latterfor the improvement of the former. Rectifying"Bad"laws The idea of remedying a "bad law", i.e. an unfitting rule usually the product of a wayward and/or outdated judicial decision, implies the recognition of an abstracted idealconcept. Whenthe broadstructureof the legalsystemis calledinto question,as it happened in the course of the nineteenth century, the grand outline of the law as applied gets measuredagainst that of an ideal law. This goes, again, to show more the pragmatic traitsof the Englishapproach, withits theninclination towards Benthamite utilitarianism,than was the case with the Continentalnaturallaw tendency. The continuityof Englishlaw as applied,when contrasted with the disruptionof French lawuponthe Revolution andits recasting thereafter into a codifiedsystem,hasentailed much subtlertechniquesto makeroomfor the influenceof an ideallaw. Or, to put it differently,if the techniqueof adaptation of the law to a radically changedsituation at the end of the eighteenthcenturyhappenedfor the French to be a revolutionary breaking and codificationally remaking the law, it was for the Englishto maintainthe system but changeit throughlegislativereformas an aid to an accelerated tempo of judicialprocessfor respondingto new requirements. The Notion of an Ideal Law The notionof an ideallaw has alwaysbeeninstrumental in a purposeful development of the law, while the law as appliedhas alwayshad to strive, throughemployment of technicaldevices, to breakits formalshell in orderto work its way out in the path of progress.It is in the perspectiveof the continuityof Englishlaw as applied, and evolvedundervariouspressures of socialcontrol,thatwe arecomparing its techniques of development with those of othersystemsunderreviewhere. Analogy, The Basic Method Owingto the natureof judicialprocessandthe apparent prohibition of pronouncing a ruleof universal application whendecidinga case,the logicalmethodostensiblywidely used underEnglishlawis analogyrather thaninduction.Yet, in spiteof sucha formal prohibition,landmark decisionsoften formulate generalrules and principleswhich, in turn, breedgenerations of decisionsseeminglythroughapplication of analogybut effectivelythroughdeduction.
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"Following" and ''Distingllisluing'' Certainty is ensuredunder Englishlaw throughlirnitation of the judge underthe doctrine of stare decisis tofollow judicial precedent, whileadaptability is madepossible throughan essentiallydiscretionary mechanism known as dtstinguishing. When an established judicialrule becomes,or is considered to have become, antiquated, its continuousapplication in disregard of changedcircumstances of the e will only resultin rigidityand stagnation. The judge,whendecidinga freshcasewhichwould otherwise havebeencovered by sucha rule,mayunderline certain finedetailsin order to show thatit is distinctfrompreviouscase(s)establishing such a rule, and thereby arrlveat a new rulmg.
. .
InductionUsed at Two Levels Induction,as a logical tool, has been employedat two levels: One, at the level of system-building, to which, however,Englishlaw as appliedis aversebut, obviously, not in its general configuration as we shallshortly see. The other,whichis intriguingly interesting, as an aid to analogical extensionwhen such an extensionis not directly possible or desirableand thereforeneeds an intermediary device. Both induction and deduction haveaidedthe analogical case-law methodfor the development of the appliedEnglishlaw. The processof distinguishing goesin effectthrough several complexstages:Analysis of the facts of and the legal issue(s) involved in the case, the search for prima faczesimilardecided case(s), analysisof each of such cases as found in terrnsof the correlation of facts and the legal issue(s) as decided, classification of judicial pronouncements into descriptiveand normativestatementsand, then, the latter into what is held to be irrelevantto the facts of the case, labelledobiter dictum, and what is determinedto be relatedto the facts of the case, consideredto be the ratio decidendi of the case. If more than one decided case are involvedwith bearingon the matter at hand, a synthesis has in effect to be made of their relevantrulings in order to arriveat a compositerule to be applied to the case whichis to be decided. DeductiveIntervention in "Distinguishing" As may be noted, the processof distingu?shing, put in a skeleton,involves, in the simplestcombination, the extensionandapplication of the decisioncontained in one caseto the factsof another case,i.e. the application of an analogical method,provided that the decisionmadein the earliercase is enteredinto on a concurrent basisand, further,the concurrence convergeon the core of the decisionto producea uniform ratio decidendi. Otherwise, it necessarily requires composite workto arrive at a ruleto be appliedto the presentcase. Thus, if morethanone decidedcaseareapplicable, thena rulehasto be formulated out of the decisionsin those cases and then appliedto the case at hand. In such
59
an instance, the apparentanalogicalmethod goes in fact through a compound inductive-deductive curve. Factors InfluencingProcess of "Distinguishing" When it comes to the improvement,throughdxstinguishing, of the law as it stands, two other factors play significantroles: One is a rationalliberty which the trial court takes, within limits, in the fine, or sometirnesfastidious,dissectionof both the facts of the present case and the facts and rule(s) of the decided case(s). The other is an a prion conceptionof an ideal rule, motivatedby extra-judicial, and in fact extra-juridical, social forces requiringa changeof the law as erstwhileapplied which, in itself, as mentioned, involves a complex analytico-synthetic process of inductiveobservation,exerciseof value-judgment, formulation of generalidea and ideal and, finally, translation into a juristicrule deductivelyapplicableto the kind Ott we new sltuatlonarlsen. The process,of course,becomesa greatdealmorecomplexwith the rise of andthe increase in the supplementary contribution of statutory lawin the traditional fieldsand its primaryrole in fresh areasof the law put in the contextof a judicially-orientated systemof application.
. . .
Brief Comparison The combinedeffectsof increased significance sincethe secondhalf of the nineteenth centuryand the accelerated pace in the twentiethcenturyof judicialdecisionsunder the French system, and the rising importance and volume of legislationunder the English system, have brought the two systems closer to each other but have not changed the basic characteristics of their respective techniques in any radical way. Islamic Law Compared When comparedwith French and Englishlaw in technicalterms, as distinct from ideological issues, Islamic law shows certain affinity to both of them which, particularly in respect of Shiah law, is greater to English than to French law. This is due, notwithstanding the absenceof judicialprecedentas a source of law, to characteristics of the prirnary sources,i.e. Koranicand Traditional edicts. Characteristics of PrimarySources Relativelyspeaking,very few out of the small poriionof KoranicnormativeVerses (Ayat al-ahkam) are of a generalnature to be consideredprinciples.The rest are mostly detailedrules coveringone aspector anotherof a juridicalinstitution,such as marriage, succession,etc., of whichsomearein responseto specificquestions(Ayat al-sw'aliyyah) thoughdetailsof the questionsare not repeatedand have to be found in commentaries on the Koran.
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Tradiiionsare different.Owing to the scantynumberof Korc Verseson any juridicalinsiituion, Traditions,ostensiblyfollowingthe Koranas they generally do, had to supplementthem in many respects.They prove, even settingaside the significant numberof forgedTraditions, a muchlargersourcethanthe Koranin the development of the law but, like Englishcases, they are scattered and unsystematic in themselves.Further,which is particularly true of ShlCah law due to its adherence to Traditions of the Prophetand those of the Imamswhich coverin all a periodof abouttwo and a half centuries,they lack, contrary to Englishcases, coniinliityand consistency in anygivenfield. Sincethe Prophet,andthe Iw?=msfor the Shi<ahs, were the fountof the law,whatever theypronounced, whether a specificrulingon a specific casereferred to themfor adjudication or an answer to a quesiionput to themor a rule or principle of generalnature,was the law for the believers.In contents,a greatdeal of suchTraditions embodyspecificanddetailed,rather thangeneral,rules. Consequently,Sunni and Shlzahjurists had to process, and expand upon) a relatively few general principles and rulesanda massof detailed andspecificrules. IslamicTanqib al-Mandt and English"Distingllishing" Compared The compositeanalyoco-syllogisiical processknownas TanqX al-manA (or -mildk)) used in Shazah law for circumveniing the prohibiiion of applyinga straightanalogy for the extension of an exisiingpariicular ruleto a similar instance,closelyresembles, in its analyiical stageand for its aim) the Englishtechniqueof arrivmg at the ratio decidendi of a case in the processof distingutshing. Both methodsare used for the adaptaiion of the law to a new situaiionand) as sllch, both are motivatedby some pre-conception to perfectthe law. Whenthe mataat, the rationale, of a Shlah exisiing rule, or the ratiodecidendi of an existingEnglishcase, is determined andformulated, Shitah and Englishlaw then in theorydifferbut m functional termsarriveat similar conclusions. WhileEnglishlaw has in principle no problem in applying the rule thus obtaineddirectlyto the new case throughanalogy,Shi<ah law extendsthe rule thus extracted to the new instancem the guise of syllogism(qiyas, in logicalsense). This processirlvolves,in the final analysis)an analogical extensionat the iniiial point of consideraiion and for the end result, but goes in the meane througha deductive curve. This again shows that when a strict law persists throughan evoluiionary process,forcesof development keep the technicalappearance sntactbut changethe contentswithinthe limitsof the fundamental postulates. Similarity betweenFng,lisll obiterdictum and IslamicistiJrddiPronouncement It is also interestingto note that Shitahmethodelogypays) in its treatmentof a Tradiiionand particularly for the purposeof the aforesaidTanqXal-manat,the same sort of attentionto a differeniiaiion made under English law between ratio decidendi and obiter dictum in the treatment of a jlldicialdecision.It is held, in the anSysisof a ruleundera Tradiiionfor deterIIiining its rationale, thatwhathas been said "in passing"or "by the way" (istiwrada; pronounced in declensionistitadan)is not to be taken into account. A pronouncement not directlyrelatedto the issue
61
involvedor the questionraisedbut made "in passing"is not, it is held, sufficiently considered and shouldnot be takenas authority.Thereis, therefore,a similarlogical rationalisation for setiing aside as authoritythe obiterdictaunder English law and underIslamiclaw. The differencebetweenthem, however, tstziradz pronouncements of the rule. An Englishjudgecannot relatesto the basicauthorityof the pronouncer authoritatively makea bindingruleon an issue not directlyrelatedto the caseat hand even if he mayfully take it up and develop,while if the Prophet,or an Imamfor the Shltahs,went beyondthe issue raisedand took up a freshpoint, providedhe directly addressedit in such a way as not to be consideredto have been "in passing",then it will be equallybinding. and French ratiolegis Comparisonof Islamic bikmahal-&zshrlZi of a rule containedin a Koranic al-tashrlzt) If the "legislative philosophy"(hikmah or the generalityof the rule, is Verse or a Tradition,ratherthan the particularity to be consideredin the analyticalprocess under Sunni or Shltahlaw to find out its ratzonale for extensionto a new situation,then the processis closer to that used the ratiolegisbeyondthe underrevivedRomanlaw and Frenchlaw for ascertaining reasonfor, as the ediate wording.All look, in such a process,to the motivating or promulgating the rules. case maybe, pronouncing Brief Conclusion spectrum,it may be said that the search Noiing these similartechniquesin a broader undera Civillaw systemfor ratiolegis,undera Commonlaw systemfor ratiodecidendi rationale (hitmahor manat)of a rule, or underan Islamicsystem for the underlying on the basicview to be adopted.They mayall discharge similarfunctions,depending cause, undera restriciivevision, the rigidityof the law; but, conversely,they serve, of the law. with a visionary outlook, the flexibilityand adaptability Need for Systematisation undera legal system consist of scatteredand Obviously,when the "rawmaterials" rules"as underEnglishcase-law of "particular unconnected rules whetherconsisting rules as principles,generalrules and numerous"particular" or a mixtureof abstract into anintelligent (manses) sources theyhaveto be processed underIslamic"textual" dislikefor doctrinal designin orderto makea system.Neitherthe Englishtraditional of nor Islamicsubjugaiion aversion to systematisaiion, contemplation or its pragmatic reasonto dogma,has done awaywith the need for a granddesign. System-building in EnglishLaw: InductiveMethod If case-lawis to be consideredthe main contributingsourceof English law, and if the broadoutline of the law as appliedis to be consistentlymouldedas a system, which rationalisation, becomesa jurisprudential then a technicallogicalcontradiction
62
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presentsinductionas the dominantmethod. The technicalcontradiction arisesout of the formalprohibition of generalisation in judicial process;but, in rational terms, system-building goes beyond pronouncing fragmented rules. Needless to say that English law is a leadinglegal system in the world today and, as a system, it has inevitably passedthroughall such stages. For Englishlaw, therefore, it may be submitted thatthe mythical notionof a body of the law beyondand aboveindividual caseshas been the abstraction of a collective professional intelligence in searchof a coherent dynamic growth.It hasbeennot only a part of the judicialprocessbut also a part of systematisation to rejectwhat has been considered "bad"or antiquated law. Further,throughan inductiveprocessas an ingredientof professional trainingand practice-and now also an ingredientof Universityteachings and scholarlyexpositions individual caseshavebeen put into placewithina general designmaking topicsor doctrines andestablishing the necessary interrelation between themto constitute a branch of thelaw.The"Books of Authority" of olden times such as Bracton'sOf theLawsandCustoms of England on early commonlawin the mid-thirteenth century,Littleton'sTenures on landlawin the late fifteenthcentury,Coke'sInstitutes on Englishlawsin the firsthalfof the seventeenth century,or Blackstone's renownedwork Commentaries ontheLawsof Englazml first publishedin 1765 arenot, irrespective of theirqualityas to the reporting of cases, justa collection of case-reports. Theircommonqualityis in whattheyhavedoneover and abovethe merereporting of cases:The pattern,the organisation and the system which they have, in differentmeasures,introduced.The sameis true of scholarly writingsof the late eighteenthcentury up to the present time which constitute altogether a different breedas systematic accounts of the lawin different branches. Doctrinal writings, therefore, transpire to havehad,contrary to the commonly-held view, a greater sharethanacknowledged in the development of English law, thoughin a guiseandat a planedifferent fromdeoctrinal writingsunderFrenchlaw. Compared with FrenchLaw Systematisation Systematisation underFrenchlaw has a significance differentfrom that of systembuilding underEnglishlawsinceCodesalready provide a system.Butin the treatment of legaltopics,thetaskof systematising thelawin the broad senseof theterm,pointing out its defectsor shortcomings, suggesting freshsolutions to changing conditions and providingtheoreticalbasis and analysisof a generalnature, is undertaken under Frenchlaw by academicscholars-a functionwhich they discharge throughtheir writings in muchbroader termsthando Englishwriters in theirexpositions or English judgesthroughtheirdecisions.Obviously,all the methodological devices,including induction,areemployed for the purpose. System-building in IslamicLaw: A DifferentPurpose As to Islamiclaw, the processas encountered is closer to Englishsystem-building than to Frenchsystemaiisation. Even underTraditionalist schoolsor trends, if the bulk of Traditionshad not been given a pattern,they would have remainedonly
SOURCESOF LAT- A COMPARATIVE REVIEW
63
chaoticcongeries. Notwithstanding the formalrejection of 'sreason" in favourof "scripture", the workobviously entailed a notable rational exertion, albeitconfined Wlt lm narrow LmltS. The process,basedunquestionably on primary sources,being the Koranand Traditions, hasgenerated a massof expositions andcommentaries whichinevitably have, in varyingdegreesdepending on the schoolor trend, a doctrinal nature comparable at twolevelsto thatof French law:First,a number of Koranic Verses andTraditions contain general principles out of which,as out of the Codesunder French law,detailed rules arederived or,in other words, theyareapplied to particular instances through a deductive method. Second, commentaries andexpositions, mainly underthe Rationalist approach, havehad a supplemental function) as havehad doctrinal writings underFrench law,by putting together elements compatible with basicpostulates to produce theories ordoctrines of a wider scope. Oneimportant point,however to be borne in mindin comparing Islamlc lawwith anyWestern legalsystemis the manner of andthe purpose for building a system. Through the longhistory of Islamic law,fbunders of schools andelIiinent religious jurists wentabout theirwayin a predominantly abstract exercise rather thanthrough formallegislative or judicial channels. The purpose was to preserve and present the "divine" law as each schoolsaw it, and the authority of system-builders lay in their scholarly meritsratherthan in any officialpositionthey held even if somehadanoffice. Thus, methodological devices in expanding the law andbuilding a systemwere employed, for all schools,in doctrinal attempts withinthe confinesof respeciive primary postulates. Extension of the ruleswas mostlyto hypothetical cases or quesiionsin orderto derivefurtherdetailedrules for the purposeof making a comprehensive system,ratherthan for applicaiion to concretecases. Judicial application wasa by-product of scholasiic exercise andnotanactive source of thelaw. Asa result) logical methods of inference, whether deduciion) induction oranalogy, haveall beenessentially in the service of an ideallawwrought out to fine details, whileunder English and,to a lesser extent,French law,theyhavebeenprimarily in theservice of actual law.Thismayexpl whycertain Islamic C'practical principles" underRationalist schoolsor trends,whichare by nature procedural presumptions, suchas istisha-b (presumption of thecontinuance of statusquoanteuntil the contrary is proved) or bara'ah (acquittal) under the 'sScience of Unil>', areemployed in legal argumentaiions in caseswherea particular ruleis not knownor clearin orderto formulate it in substantive terms.Obviously, suchmethods areapplicable alsoin adjudication of caseswhere appropriate. Withthispointin mindandallowing forit, comparison of Islamic lawwithFrench andEnglish lawmaybe taken a stepfurther. Inirlference of detailed rules outofgeneral prlnciples) orin theuniversal applicaiion of detailed rulesto specific quesiions or cases) the Islamic technical approach comes closethrough deductive method to thatof the French systemwherethe Codesand otherlegislation constitute notonlytheformal butalsothemainsource of thelaw. Since,however, a goodnumber of Koranic Verses andthegreat bulkof Traditions containrules concerning relatively particular instances,other devicesare to be employed including theuseof logical methods otherthandeduction. Analogy (qiyas,
* * * -
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ARAB LAW QUARTERLY
in jurisprudential context;corresponding to logicaltamthtl) appears the mostobvious tool for the purposeand the Sunni schools apply it. But, by contrast,analogyis bannedunder the ShlZah law. This formalban, originated in a Shi<ah Traditional text (na$), has its rational justification in the particularly of the existingrule, but it placesa restraint on the instrumentalities of development. Note on IranianLaw In broadterms, the task of systematisation of the law betweenthe two Revolutions of 1906and 1979was effectivelyleft to doctrmal writerswho struggled with scanty materials. The taskhas in theorybeen deniedthemunderthe Islamsc Republicwith respectto Islaniicised laws unless they may belong to the clergyto be considered "specialist" in the religious senseof the termfor opiningon the lawsof Shitah origin; andthe "specialists" as so definedhavesince1979donelittlebutreproducing, in many casesverbatim, the rulesof Shlzah law as writtendownsomesevencenturies agoand madethem, significantly in criminal matters,the lawsof the land.
CONCLUSIONAND COMPARISON
Sources of the lawunderthe legalsystemsunderreviewherefallintofourcompletely different patterns. Underall the threenationalsystems,legislation formally comesfirst. In termsof actualcontribution of respective sourcesto the development of the law, somesources other than legislationmay have playeda more significantrole. This is particularly true of English law which, essentially,is a case-lawsystem and has remained, notwithstanding its presentvastlegislative product,case-orientated. Sometraditional areas of thelaw,suchas tort,contract andequitable remedies, continue to be governed by judicial decisions.Evenin the novel areasof the law regulated by legislation, the influence of the case-law approach is evident.UnderFrenchlaw,notwithstanding the fact that the formalrole of legislationis fairlycommensurate with its contribution to the law and that judicialprecedenthas much developedin the presentcentury, doctrinal writings haveplayeda significant rolein the development of the Jawwhich, in the courseof the nineteenth century,ascended overthatof judicial decisionsand, presently,continuesto makeits contribution by takingboth legislation and judicial precedent into account. The two legalsystemscome, in practical terms,closerto eachotherby the growth of legislation underEnglishlaw and of judicialdecisionsunderFrenchlaw; but, in approach andin legislative and judicial techniques,they continueto standapart. Judicialprecedent has had a negligibleimpacton the development of Iranian law both beforeand sincethe Revolution of 1979.Beforethe saidRevolution, however, doctrinal writings constituted, next to legislation, the maincontributing sourceof the law. Sincethe Revolution, the role of"doctrine" has been, due to the Supremacy of the Clergyand the pressure appliedto bringthe law in line with religion,somehow liminished Presently,thoughin theoretical termsthe "rulings" of the Jurist-Leader
65
is above thelawandthattheShfahIslamlc lawis proclaimed to override anyenacted legislation) the bulkof the pre-Revolutionary legislation hasremained in forceand, further, animmense volume of fresh legislation hasbeenproduced of which criminal laws,somelimitedareas of civillawanda partof banking operations havereverted fromthepreviously secular enactments to Islamic, Shfah,norms. In the caseof Islamic law,the Koran hasalways beenheldthe uppermost source of thelawas a partof thefaithbut,historically, it is theTradition) i.e. thenarrated account of thewords anddeeds of theProphet, andfortheShi<ahs alsoof theImams, whichproves,despitea vast number of forgednarrations, the largecontributing source,not onlyfor the SunmTraditionalist schools,Miliki and hnball, andthe S}llzah Tradiiionalist trend,Akhbari,but also for the Rationalist SunmSchools Hanafiand Shafi'l,and the Shlzah Ratonalisttrend, Etihadt. "Reason", first for the hnafi school and next for the ShafiEschool and the Shlzah Ijtihad trend,has played,in termsof its contribution to detailedrules, and despiteits narrow significance in beingoperative underand subject to the a pnori postulates of dogma,a role whichis no less impressive thanTradition. Afterthe respective tial formative phasesof schools wereover,the "consensus", iima',of jurists has, in oursubmission, hada minimal contribution to the development of Islamic lawin anyschool owing to theirnpraciicability of obtaining it. Nextto theseformal sources, juristic viewsandopons expressed and/or employed in numerous expositions and commentaries undereachschoolor trendhavealsocontributed, particularly under the Rationalist approach, a greatdealmorethanwhatis formally admitted to the development of respecove schools. Custom) underall the legalsystems underreviewhere,maybe considered from two pointsof view:Its influence in the historical development of the law, andits posiiion under thepresent stand of thelaw.Fromtheformer viewpoint, French law drewmoreon it thanotherlegalsystems due to the pre-Revolutonary prevalence of various customs as the mainsource of the law in the Northern partof France. English andIslamic lawcomenext.English laworiginally drewuponlocalcustoms but soonassimilated themintothe common law,stricto sensu,andwenton withthe technical development of judicial precedent. It laterdrew, mostlyin mercantile matter, on customary praciices but, again,gradually absorbed theminto andmade them part and parcelof commonlaw. Islamiclaw has also been tnfluenced by various customs bothin its inception as shownby whatareknown as "affirmatory precepts" (aFkam al-irnda'iyyah), in contradismction to "fundatory precepts' (ah)zam al-ta'sisi.ahWand in theprocess of itsgrowth, particularly under Rationalist schools andtrends.Iranian lawhaspractically beenunaffected in inception by customs due to the absence of any customary ruleshaving everbeenformally in operaiion and the wholesale adopiion uponthe Consiitutional Revoluiion of 1906of a mixture of Shzahand Frenchlaw. Fromthe latterviewpoint, apartfromwhatever heritage left to a legal systemout of its customary originor practice,customconiinues to be, pariicularly in commercial fields, activeunderthe nationalsystemsbut its contribuiion, compared with otherrespective sources of the law, is marginal. Underactual Islamic law)the placevouchsafed to custom in certain transactions of a commercial nature is onlyminimal.
66
LAWQUARTERLY ARAB
various of the law, notwithstanding tools for the development The technical essence in here,are underreview underthe legalsystems of sources permutaiion differ. considerably thewayof theiremployment though similar haveto be anylegalsystem under sources primary respeciive speaking) Broadly to fresh extension andlor for applicaiion interpreted doctrinally andlor judicially to history ranpg from In the process,a host of otherdisciplines) sit:uations. the on may,depending totheology, philosophy aIld toeconomics commerce sociology, devices technical however, terms, legal In asanaidintoaccount betaken standpoint, of Aristotelian andconsistbasically arelimited for the purpose employed directly symbiotic such by supplemented mio, md mduction OgiCi memsof deduction, andlinguisucs. as letters disciplirles law andFrench lawusesinductive thatEnglish discussions, It is held,m broad general law,extractirlg Thisis trueto theextentof, forEnglish method. deductive inferring law, French for and, decisions of mdividual out of particularities rules instances. to pariicular forapplication Codes the of provisions of out rules detailed Judicial complicated. more lot a the processundereithersystemis Obviously, general to amount effect in what underEnglishlaw often enunciate decisions statutory to addition ln now, handle or rules;and Frenchlaw has to prirlciples cases. to analogous for application decisions of judicial a vastvolume provisions, involves system legal either under is required which process sophisiicated Theoverall combined. methods all of theemployment judicial of "followlng" deczsis of stare thedoctrine under requirement TheEnglish of purpose the for used often of "distinguishing', and the technique precedent analogical of use the involve ostensibly situaiions, the law to changing adapting wherethe caseat hand pariicularly play, into come also but otherdevices method The French dimensions. SigniflCatlt social andlor complicaiions technical presents constante) (junsprudence lineof decisions an established of foHowmg practice judicial to induciion of aid the reasog butirleffectwith usesanalogical ostensibly again doctrinal French the Likewise, coreof thelineof decisions. theestablished determine thelawin thelight to expand order in decisions judicial of mass the in hans1ling efforts in Thedifference method. of unduciive eheemployment lnvolves Ofits application) stems however, thetwolegalsystems) between means of technical theemployment lawto judicial English under attached significance of theprimary thedifference from is further The difference provisions. lawto statutory andunderFrench precedent respeciive the and of thesystems configuraion respecove bytheoverall accentuated andreformatory gap-filling a is legislaton law English under Since approach. overall a posiiion enjoy judges system, andcase-orientated anuncodified within instrument through significantly whilelegislation, legalscholars; thatof academic transcending historical withthe lawandendowed of French source beingtheprime codificaeon, on the exeriion effectual their with coniinue legalscholars efforts, of doctrinal legacy of the influence Consequently, to thatof judges. superior lawandenjoya posiiion their alive lawkeeps French under andscholars lawandof legal English under judges concerned. system legal the on imprsnt andintellectual pragmatic respeciively andinductive deduciive the both used has law, in its turn,historically Islamic i.e. sources, primary (mamiis) "textual8' its of owingto the characteristics methods
67
the Koranand the Tradition.Certaingeneralprinciplesand rules containedin the Verses"of the Koran, or likewise in Traditions,had to be inductively "normative processed for the inference of detailed rules. By contrast, since a great deal of issues, they had to be inductivelytreatedto fit into a Traditionsaddress"particular" by Shltah pattern.Analogy,as an aid, is usedby SunmSchoolsbut not, theoretically, a pronouncement for "pruning" al-mana School. Yet, throughthe processof tanqxh first the core of the in order to arriveat its "rationale", from its "particularities" is to be discernedas a generalrule and then deductivelyapplied pronouncement to the instance concerned. The method is, setting aside a number of peripheral of a case decidendi the ratio questions,similarto the Englishmethodof deterIIiining dictum(-a). it fromobiter and differentiating Iranianlaw continuesin civil matters,even today under the IslaInicRepublic,to draw, in the absenceof a publishedjudicialprecedent(except for the decisionsof the plenary session of the SupremeCourt) on doctrinalwritings with respect to laws still in force but, where it concernsIslamicisedlegislation, pre-Revolutionary in criminal laws as adoptedafter the Revolution, on Islamic, Shltah particularly deductive. predominantly The basicmethodused is, undercircumstances, materials. All the legal systemsunderreviewhere havehad, in the courseof their respective of the and continuous"maintenance" history,to face the challengeof "construction" edifice out of and within the law, to build and develop a coherentand homogenous andto go on closingthe gaps materials primary of available andpossibilities parameters partsof the law. English various harmonising and deficiencies rectifying andlacunae, materials, primary respective their of dispersion the of because to, had law andIslamic Verses normative scattered and law English for cases individual havingbeen disioined respective of the course the in a tystem build each law, and Traditionsfor Islamic growthoveralmosteight centuriesfor the formerand about continuousevolutionary fourteencenturiesfor the latter. Frenchand Iranianlaw, havingstartedanew upon Revolutionof 1906 for the Revolutionof 1789 for the formerand the Constitutional had to maintain structure, the latterand havingfairly soon each erecteda codified alreadycontainedin respectiveCodes in order it throughsystemAtising the materials adaptthem to evolvingnew situations.Frenchlaw continuesto do so to continuously law has revertedto the old path. but Iranian devicesoperate,underanylegalsystem, thattechnical It maybe addedin conclusion to the possibilitiesand the scope of of the systemand according within the structure as dictated directions be usedin different tenets.They may,therefore, itS fundamental and shapethe system. by the basicpostulateswhich dorninate dependingon the degree of The result will prove progressiveor retrogressive, today. with the needs of humankind compatibility

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Sources of Law under English, French, Islamic and Iranian Law: A Comparative Review of Legal Techniques Author(s): Parviz

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