From Engendering Laws to Its “Gender Blindness”

About this Article

In this interview, Mehrangiz Kar takes a historical look at jurisprudence during four decisive periods in the history of modern Iran. Starting with the Constitutional Movement, Kar charts the evolution of Iranian jurisprudence through the reigns of both Pahlavi monarchs, ending her account with an analysis of jurisprudence under the Islamic Republic. As a female jurist, Ms. Kar is especially attuned to discriminatory laws related to family law and women’s rights and she points out the periods of progress in this field during the last hundred years, as well as the times when such jurisprudence regressed. Indeed, Mehrangiz Kar maintains that the ascendency of sharia law since the Islamic Revolution has made it more difficult for Iran to achieve the rule of law demanded by the people during the Constitutional Movement. She contends that without major political restructuring, Sharia law will continue to dominate Iran’s jurisprudence, ensuring that the century-old demand for a modern legal regime will persist. Mehrangiz Kar reflects that Iranian civil society—especially the intellectuals--never truly appreciated the achievements of the second Pahlavi shah regarding women’s rights until those were discarded and redefined by the Islamic Republic. Some may not agree with all of Ms. Kar’s conclusions, but all will be challenged by her thoughtful and provocative analysis.

This article is a translation of an interview transcription that was conducted in January 2021 with the Iran 1400 Project.

Constitutionalism and Justice-Seeking

Here, we do not intend to review the text of the law; rather, our purpose is to re-evaluate Iran’s issues and problems that are caused by either the existing laws or by the absence of laws. If we were to limit this review to one hundred years, we must begin with the Pahlavi era; however, to go to the root of this “legal” matter, we must go back to the Constitutional Era of 1905. People of all creeds, people from both the urban and rural areas, Western-educated people and even some religious leaders, in that Constitutional Movement, had a single demand: “establishing a center of justice.” This was technically a demand for living under “just laws” to be applied by a center or a court of justice. Of course, this does not mean that prior to this Constitutional Era the country did not have any laws; there were regulations, directives, and guidelines, but there was no parliament to pass any laws based on the public needs. The existing laws were more based on the government’s needs and objectives as opposed to those of the people. This was the real difference between the Constitutional Movement onwards and the pre-Constitutional period.

Following the victory of the Constitutional Revolution, elections were held and legislating laws began shortly after the parliament was established. Needless to say, that established parliament was not like today’s modern version because women had neither the right to elect or be elected into that parliament. Nevertheless, Iran was on her way to enter an era of modern parliamentarianism which was in itself significant. The parliament continued legislating until the “bombardment of the house of the parliament” in 1908 which created a number of crises. When Reza Shah came to power, he inherited this Constitutional Movement and the subsequent crises associated with it. People expected the new Shah to carry out the mandate of the Constitutional Revolution and uphold the parliamentarianism that was established by that revolution. However, due to the rampant chaos and disorder throughout the country, people’s attention was more geared toward establishing security, peace and order.

Reza Shah and Challenges of Modern Legislation

Reza Shah was faced with a major obstacle in this democratic legislative process. The obstacle was the section of the Constitution ratified by the People’s Parliament (Majlis) placed Islamic law at the foundation of the lawmaking structure. This was a daunting barrier for anyone who wanted to bring Iran into the modern secular world. Although Reza Shah was not an educated man, still at times, he tried to overcome that obstacle. It hurt him politically and made him lose the support of some segments of society, especially radical Muslims. Reza Shah took on this challenge and started to implement anti-religious practices such as banning all types of Islamic hijab (Kashf-e Hijab) by a “royal decree” rather than by legislation, which caused a great deal of public dissatisfaction and resentment towards him.

Good Law, Bad Law, Kashf-e Hijab

Although Reza Shah’s methods and mannerisms were authoritative and forceful, yet he had a modern way about him. Among his actions were the creation of a national army and the establishment of a modern judicial system. In this process, he managed to set aside the clergy in this new judicial system. However, when it came to the civil laws of the nation, Reza Shah chose a different path and did not confront the Muslim clergy at all there. The civil law was based on Sharia law and in the Clergy’s domain. Iran’s civil laws were filled with injustices and inequalities, concerned family life, marital relationship, children, inheritance, divorce, and other aspects of people’s daily lives. It is not clear why Reza Shah decided not to address the civil laws the same way– either he was afraid of the clergy’s reaction or he agreed with them.

He, however, took on the penal code which was nonexistent until then. There were corrupt religious leaders who were taking advantage of their positions in these cases. Reza Shah pursued the policy of eliminating the clergy’s involvement in the government’s affairs. For the penal code, Reza Shah asked that the laws be written in accordance with the European model and that was how the general penal code was ratified. Of course, the laws of European countries in those days were not perfect. For example, France’s law had an article that would allow honor killing; but it became part of Iran’s penal code as well. However, France eventually got away with that law, but Iran never corrected it.

Major Progress and Achievements

Ratification of the general penal code was a major achievement for the legislative process in Iran. It was progressive because it created “good laws. “Bad laws” are those laws that are discriminatory and inequitable; “good laws” promote equality and are equitable. In that codified penal code, there was equality and fairness; for example, the age of criminal responsibility became 18 as it should be.

When Reza Shah was exiled and replaced by his son Mohammad Reza Shah, the executive order that put a ban on Islamic hijab was automatically canceled. Interestingly enough, many women did not go back to the practice of hijab, but a considerable number of women who had previously opted to stay home due to the ban, went back to the hijab once again. Although the fact that a number of women never went back to hijab was a major failure for mullahs, they chose to ignore it. Another achievement of Reza Shah’s time that continued during Mohammad Reza Shah’s reign was women’s presence in higher education institutions and in the workforce.

Mohammad Reza Shah and His Experience with the Law

During his first years in power, Mohammad Reza Shah was busy with the country’s domestic issues and did not have much time for addressing the legal issues. Also, in his early years, the Shah was very liberal, but after the nationalization of oil, he moved away from the democratic process and became dictatorial.

Princess Ashraf, Shah’s twin sister, was not only a long sufferer as a woman, but was also hated in society. Apparently, she condoned free sexual relationships, and more importantly, as the rumor has it, she had played a major role in ousting Mosadegh. This socially-hated sister pressured her brother, who perhaps did not even care about women’s issues, to focus on the daunting task of women’s problems and to enact laws that would eliminate gender discrimination. That was not an easy task, because the laws at that time were founded on the basis of utterly discriminatory Shira Law and guided by the learned clerics. Furthermore, based on religious laws it was virtually impossible to create a piece of legislation that would hold women to an equal station with men.

Family Protection Laws and Modern Judiciary

Ultimately, Mohammad Reza Shah, whether on his own volition, under his sister’s pressure or even to improve his reputation internationally decided to pay closer attention to women’s situation in Iran. As a result, an organization was established, which paved the way to help change the law. Highly educated female lawyers formed a workgroup in that organization to make amendments, and their efforts prompted men to join them. Finally, in 1968 the law of Family Protection was passed and despite its shortfalls was generally beneficial to women and children. In 1974, a few years after the implementation of this law, Amendments were to address the implementation of that law. The Amendments also replaced the civil laws of marriage, divorce, and children’s guardianship. For example, before this law, a man could divorce his wife without her knowledge by going to a legal authority and paying back her dowry, and the wife would only be notified by the legal authority. This practice had a great psychological impact on women and even led to suicide in many cases, because not only was divorce socially abhorrent, but as most women did not work, they had no other source of income other than their alimonies. Finally, however, the situation improved and based on a directive in that regard formally trained judges replaced the Shi’a clergy in the judiciary.

Establishing the modern judiciary, which emphasized the implementation of “good” laws and reduced the authority of religious leaders in civil affairs, made the clergy even more angry. They objected that technically only a Sharia Jurist could issue a legal decree. This, in fact, was the same point of contention during the Constitutional Movement. Eventually, the clergy relented and took it to mean that the clergy legislate laws and that the parliament must interpret the sharia law lest people mistake those laws with the divine laws.

Prior to these reforms, there was a law regarding judgeships which was not discriminatory toward women by allowing women to serve as both judges and heads of the Courts; however, this law was never observed due to the fear of clergy, or maybe our society was not ready for it. In any case, a directive was issued on behalf of the Shah to enforce this law. Therefore, about 10 years before the Islamic revolution there were female judges and heads of the Court and even before that we had female attorneys. Here is how the new laws were breaking the existing taboos about women in Iran.

It is noteworthy that the Shah did not have much leeway to pass new laws that were contradicting the Sharia laws. People did not support the Shah for these changes; they either were uninformed or neglectful. Nevertheless, the Shah was always afraid of the religious forces. As a result, he even asked credible religious leaders to sign off on his Family Protection Law to no avail. Finally, at the last resort, they had to find 2 or 3 less credible clergies and ask for their blessing to comfort themselves that they had not done anything contrary to the Sharia law.

Mohammad Reza Shah and Modernization of Law

In 1962-63, Mohammad Reza Shah decided to submit 6 Initiatives to a referendum in line with the so-called The Revolution of Shah and Nation, the White Revolution–what we call the Reforms. The significance of this event was that women could participate in the referendum and also in the election of the Provincial Councils. That was, in fact, the beginning of the rift between the Shah and Khomeini. It was here, on this issue, that Khomeini’s character became known. In an audacious speech, Khomeini objected to women’s voting and said that it would either drive women to prostitution, or would end up making the parliament reckless and unrestrained. Of course, Khomeini was already against many of the Shah’s undertakings including capitulation; those disagreements constituted the core of his dissension with the Shah, not knowing that someday he would be the victor! Khomeini began this dissension with a clear assessment of the deep seeded dissatisfaction and resentment of the people and he turned it into a conflict among the people unleashing a force that had not manifested itself before. Nonetheless, confronting the Shah was not an easy task at all.

Ultimately, the Shah sent Khomeini into exile in Turkey thinking he is no longer a threat and continued his reforms. His White Revolution was implemented; feudalism became a thing of the past; land reform occurred; the Family Protection Law was ratified; and in a way, he was moving Iran’s system of laws closer to the Western legal codes. There was a long way to go yet, but this was the beginning.

Why Mohammad Reza Shah’s Reforms Were Considered Insignificant

From the early days of the Islamic Revolution in 1979, Khomeini began to reverse all the legal reforms and laws that the Shah had installed. For Khomeini, they were all in violation of Islamic laws. Khomeini commissioned six clerics to nullify all such laws; among the first of these were the Family Protection Laws and women’s right to judgeship, followed by passing of the compulsory hijab law. Under the Shah’s rule, the hijab was an option and women could choose any type of hijab. As these changes were taking place, women were beginning to realize what rights they had and what rights they were losing since.

Another problem was that the women, or anyone else for that matter, had no idea what the Shah had gone through to make those legal rights possible. In other words, no one had ever really looked at the Shah’s record as a whole. Perhaps, Shah’s accomplishments were either overshadowed by the resentment people have been carrying since the Shah’s maltreatment of Mossadegh or were ignored due to successful negative campaigning against the Shah by the leftist elements and the religious leaders throughout Shah’s tenure. In fact, we, as women activists, never really considered the Shah’s accomplishments at all. Even if we wanted to, the intellectuals would dismiss it outright or would accuse those who dared to do so of being the Regimes’ sympathizer working for Ashraf Pahlavi. Therefore, many times being put in that position, we just overlooked women’s rights achievements altogether.

You must bear in mind that before the 1979 revolution, both men and women enjoyed social freedoms. For example, there was no law regarding mandatory hijab or prohibiting the mingling of men and women in social gatherings. Drinking alcohol was not prohibited. In such instances, which were part of people’s daily routines, the law was silent. Of course, drunk drivers who got into accidents were dealt with according to the law. In those days, the legal system would not interfere with people’s normal private lives unless there was a complaint. Even, one person’s indiscretion wouldn’t have led to the loss of peoples’ social freedoms. There were no laws to allow this to happen.

Sharia, Constitution and Social Freedoms

It did not even take three months after the revolution for people to come to the realization that they no longer could enjoy the social freedoms they once had. They also realized that in the absence of laws, fatwas would be carried out; and since no legislative body had been formed yet, Mr. Khomeini would issue fatwas ruining ordinary people’s lives.

After the revolution, the constitution became a binding set of instructions, which stipulated that “everything is contingent upon whether or not it is in contradiction with Islam.” For example, social activities and women’s freedoms existed as long as they were stipulated by Islamic criteria. However, we never knew what the Islamic guidelines and there were no laws to specify them; therefore, it presented an opportunity for them to interpret Islam in anyway they desired. This made a bad law even worse in its execution, because the law enforcer could choose to uphold the most rigid interpretations of Islam, which would leave no room for personal freedom for anyone. Meanwhile, six jurists of the Guardian Council, or twelve lawyers and jurists, became the sole interpreters of the Constitution. And, due to the conservative nature of this group and their fundamentalist views, the most rigid reading of the Constitution was offered by them; this left the sanctioned laws totally repugnant to the modern sense of justice, equality and human dignity.

In accordance with the policy of reversing the Shah’s laws, civil laws were changed again to the detriment of mostly women and children. Such was the case with the general penal code, which was set aside. For example, the right to divorce, which, as part of the Family Protection Law, was no longer the arbitrary and absolute right of men, was once again returned to them. There were many changes in the criminal law, as well, such as the retribution law, which later on was approved as the Islamic Penal Law; the marriage age for girls became 9 and eventually went up to the age of 13. Yet, with their parents’ permission, girls could marry even under that 13 years of age. Also, the age of criminal liability that was 18 under the Shah, decreased to 9 for girls and 15 for boys. It is under this law that an 18-year-old could be executed for a crime he had committed as a child under the Islamic Republic. These were the type of changes we witnessed after the revolution and we are still seeing a great deal worse, today.

Deprivation of Social Liberties and its Consequences

A major challenge that people faced after the Islamic revolution was the challenge of coming up with ways to get around the law. People did not have the stamina to engage in another revolution or a new mess, so they put their energy during the next two decades in finding ways to get around the existing laws. One of the latest examples of this creativity is “White Marriage”, in which a man and a woman live together and, in many cases, keep their own financial independence, without committing to any of the Islamic marriage requirements. Of course, the government, just for keeping appearances, occasionally confronts such cases of breaking the norm, but is unable to eradicate this practice.

In my view, the worst disease with which any society could be inflicted is that of general disregard of the law; this lawlessness eventually becomes habitual and systematic. If miraculously Iran is able to have a better legal system, we must find a solution for this total open disregard for the law, which is becoming second nature to most people now. In the future, we need a sound legal system in which the cultural concerns of the people are addressed properly. Freedom of the press, for example, would allow everyone to have the liberty of expressing the problems and the possible challenges each person perceives. Look at America for example; after 50 or 60 years of discussions about homosexuality covered by the media there, it is now that we see the results of these discussions in their communities. Iran, in an organic way, must go through the same type of preparation for every major cultural or social change. Currently, when such preparations or prerequisites are not permissible inside the county, people resort to the mass media through satellites and internet to communicate easily and freely, and to get around governments’ restrictions. There is, however, no denying that this space could also be poisonous. Just bear in mind that when in a closed society the only alternative is cyberspace, one can not expect that every conversation be constructive; however, one must be aware that in such a space, people may pour their hearts out but the exchange of opposing views in this very space is valuable nevertheless.

Bad Laws vs. No Laws

It has been said for several thousand years that “bad laws” are better than “no laws” at all. I, however, have to emphasize that after the establishment of the Islamic Republic we concluded that bad laws are not better than no laws. Bad law ultimately leads to the denigration of a nation around the world. Iran used to be progressive and Iranians were moving towards modernity; now, it is very difficult for a country like Iran to bear such primitive governance. The stoning sentencing and practices is a case in point. When Mohammad Yazdi served as the Head of the Judiciary, 23 women were stoned to death, which is horrible for Iran and was a bad reflection on the country on the international scene; it is disrespecting the people of Iran.

1400 and Upcoming Challenges

In the new century, we will face major political challenges because nobody is satisfied with the current social inequities. Although many people believe that men are happy with the current situation, I completely disagree, because no man wants an uncertain future for his daughter. When women are at the bottom percentile of employment and Mr. Khamenei emphasizes that women must get busy adding to the population, no man would be happy to see his educated daughter without a career or a decent job. In the new century, all these challenges will pile up and the country’s problems will increase unless a proper political regime is established that could manage the country without interfering in people’s religious beliefs and practices, a system where gender equality and equitable laws for both genders exist. Unfortunately, however, at this point, I don’t have a positive outlook at all.

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