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Dossier : Le pluralisme judiciaire dans l’Islam prémoderne
3 – Les usages politiques et sociaux du pluralisme judiciaire

Judging the Judge: Judicial Competence in 19th Century Iran

Zahir Bhalloo
p. 275-293

Résumés

Résumé : Cet article examine l’impact du modèle doctrinal chiite imamite uṣūlite, dominant dans l’Iran du xixe siècle, selon lequel le juriste qualifié (muǧtahid) agissait comme arbitre (qāḍī al‑taḥkīm) dans la procédure judiciaire. M’appuyant sur des « archives de plaideur » datant de cette période, j’analyse un des problèmes posés par ce modèle. Il était possible, pour les plaideurs, de remettre en cause la validité d’un ḥukm en prétendant ne pas reconnaître comme muǧtahid, et donc comme judiciairement compétent, le savant qui l’avait prononcé. Ceci obligea les auteurs uṣūlites à développer un cadre juridique dans lequel un muǧtahid reconnu devait confirmer le statut d’un autre dans le cas où les qualifications juridiques (iǧtihād) de ce dernier se verraient contestées. Je démontre qu’en pratique, même si la compétence judiciaire d’un savant muǧtahid était confirmée par un autre muǧtahid reconnu, l’application du ḥukm prononcé par le savant n’était pas garantie.

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Texte intégral

I received valuable comments on earlier drafts of this essay from M. Tillier and P. Sartori.

  • 1 Calder 1980, p. 70‑73 and Tyan 1960, p. 177.

1N. Calder’s seminal 1980 thesis explored for the first time the distinctive Imāmī or Twelver Šīʿī conception of judicial administration. Unlike Sunnī judicial theory which stressed the necessity of judicial appointment (tawlīya) by the de facto political power, the Imāmīs from the very beginning considered judicial appointment by any authority other than the Imām or his representative illegitimate. While the Imām was present, he or his representative would directly appoint šarʿī judges (qaḍīs). During the Imām’s absence, judicial authority (wilāyat al‑qaḍāʼ) based on authoritative texts — reports narrated from the Sixth Imām Jaʿfar al‑Ṣādiq (d. 148/765) — was interpreted to have been delegated to Imāmī scholars (ʿulamāʼ) who possessed the requisite qualities (šarāʼiṭ) for judicial activity (qaḍāʼ).1

  • 2 Gleave 2007, p. 237‑238.
  • 3 Gleave 2007, p. 239.
  • 4 Calder 1989, p. 59‑60.

2Precisely what these requisite qualities were was repeatedly debated by Imāmī writers. The Uṣūlīs held that the scholar had to possess the qualities of a jurist (muǧtahid) in order to exercise valid judicial activity.2 The Aḫbārī school, a movement which rose to prominence in the eleventh/seventeenth century, placed greater emphasis on the scholar’s ability to read, interpret and transmit the reports (aḫbār) of the Twelve infallible Šīʿī Imāms.3 The Aḫbārīs, like the earliest Imāmī writers, did not consider it necessary for a šarʿī judge to be a muǧtahid.4

  • 5 Calder 1987, p. 92‑96 and Gleave 2007, p. 249‑251.

3Though the Uṣūlī and Aḫbārī positions may have differed on the requisite qualities a scholar required to exercise valid judicial activity, both held that judicial appointment by de facto governments was a usurpation of the prerogative of the Imām. Nevertheless as Calder and Gleave have demonstrated, Uṣūlī and Aḫbārī writers did try to find ways to accommodate, at various times, centralized state-sponsored judicial administration. This was done through recourse to concepts such as dissimulation (taqīya) and the distinction between rulers who were illegitimate (ǧāʼir) and oppressive (ẓālim) and those who were illegtimate (ǧāʼir) but just (ʿādil).5

4While the attempts made by Imāmī writers to accommodate a centralized judicial administration due to the exigencies of the Mongol or Safavid state has received some attention, another doctrinal trend, which seems to have its origins among Uṣūlī writers in the Safavid period, has yet to be examined. The focus of this line of reasoning was to accommodate the arbitration (taḥkīm) of the jurist (muǧtahid) into Imāmī Uṣūlī theory.

5This decentralizing current seems to have reached its height in the Qāǧār era (1785‑1925). As in the case of judicial appointment by the de facto political power, however, judicial ‘appointment’ by individual litigants was seen to be a usurpation of the Imām’s prerogative. Nevertheless it was argued that if the arbiter (qāḍī al‑taḥkīm) possessed the qualities of a jurist or muǧtahid then his arbitration (taḥkīm) was valid. This is because though the scholar was in practice mutually ‘appointed’ by the litigants (marḍī al‑ṭarafayn) to act as an arbiter, in reality, due to his possession of the requisite qualities, his ‘appointment’ derived from the reports of delegation by the sixth Imām.

6It is not clear when this Uṣūlī theoretical accommodation of the validity of the arbitration (taḥkīm) of the muǧtahid began to affect actual judicial practice. In the Safavid era, it seems this doctrine, which effectively proposed a decentralized system of private ʿulamāʼ-run šarīʿacourts of arbitration and settlement, may not yet have been as influential as its alternative: an ‘accommodated’ centralized state-sponsored judicial administration.

  • 6 See for example Al‑Šaftī, Maqāla fī taḥqīq iqāmat al‑ḥudūd.

7With the fall of the Safavid dynasty in 1722, however, and in particular in the aftermath of the Uṣūlī doctrinal victory over the Aḫbārī school in the mid-eighteenth century, the role of the jurist as arbiter was now debated by Uṣūlī jurists in a way that had hitherto not occurred. Many procedural questions remained unresolved, in particular, those relating to the shift in the nature and function of the ḥukm in litigation. The ḥukm was no longer the final judicial decision of an appointed Imāmī qāḍī in a lawsuit. The workings of the ‘ḥukm’ of the Uṣūlī muǧtahid in his role as an independent arbiter (qāḍī al‑taḥkīm) now had to be clarified. Could a non-muǧtahid act as an arbiter? Equally important, the jurisdiction of the Uūlī muǧtahid asked to act as an arbiter over criminal matters had to be defined more clearly than had been done previously.6

8It seems that it was through discussions on such procedural questions that an early notion of a hierarchy of most learned (aʿlam) Imāmī clerics who would act as sources of religious emulation (marǧaʿ altaqlīd) developed in the Qāǧār era and the groundwork was laid for an extension of the jurist’s authority over political affairs central to Ḫumaynī’s doctrine of wilāyat al‑faqīh.

9The aim of this essay, however, will be to assess in a preliminary way what impact the dominant Qāǧār Uṣūlī doctrinal model of the muǧtahid as arbiter had on the status and function of the ḥukm in Qāǧār šarīʿa litigation. I propose to do this by drawing on a ‘litigant archive’ from this period. One problem that emerged from the dominant doctrinal model was that it became possible for litigants to challenge the validity of a ḥukm by claiming they did not consider the cleric who issued the ruling to be a muǧtahid. This ultimately forced Qāǧār era jurists to come up with a procedural framework for decentralized judicial practice where recognized muǧtahid‑s would have to decide on the iǧtihād of a given cleric if it was challenged in a dispute. In practice, as I hope to demonstrate, the certification of a cleric’s iǧtihād by a recognized muǧtahid was still no guarantee that the cleric’s ukm would be enforced.

1. The Dirāzgīsū sayyid‑s versus ʿAbbās Ḫān Qāǧār

  • 7 Modern day Gurgān in North Eastern Iran.
  • 8 The lands belonging to Čūplānī and Mīr-Maḥalla were used to cultivate husked rice (šaltūk). Their b (...)

10The problem of iǧtihād was central to a land ownership dispute that occurred in mid-ninteenth century Iran between a local group of descendants of the Prophet (sayyid‑s) known as the Dirāzgīsū and ʿAbbās Ḫān Qāǧār Bēglerbēgī, the governor of Astarābād.7 The Dirāzgīsū claimed that two villages in ʿAbbās Ḫān’s possession, Čūplānī and Mīr-Maḥalla, located outside the town of Astarābād, were part of an endowment (waqf) founded in the Safavid period by their ancestor, Mīr Rūḥullāh al‑Ḥusaynī. As the hereditary trustees and beneficiaries of Mīr Rūḥullāh’s waqf, the sayyid‑s challenged ʿAbbās Ḫān’s possession of the two villages.8

  • 9 For Šaftī see Tunikābunī, Qiṣaṣ al‑ʿulamāʼ, p. 135‑168 and Schneider 2002. For Kalbāsī (also Karbās (...)

11Litigation by the sayyid‑s focused on the ḥukm‑s of two clerics who supported their claim to ownership. The first ḥukm was issued by a cleric based in Iṣfahān named Āqā Muḥammad Mahdī (d. 1278/1861‑62). Āqā Muḥammad Mahdī was little known in Astarābād, but he had exceedingly good connections. He was the son-in-law of Muḥammad Bāqir Šaftī (d. 1260/1844) and the son of Muḥammad Ibrāhīm Kalbāsī (d. 1261/1844‑45). Šaftī and Kalbāsī were both renowned jurists living in Iṣfahān.9 The second ḥukm had been issued by a revered, but by the time of litigation, dead local cleric of Astarābād named Ḥāǧǧī Mullā Riḍā Astārābādī (d. c. 1251/1835).

  • 10 The Dirāzgīsū documents were transcribed in the 1970s and published by Manūčihir Sutūda and Masīḥ Ḏ (...)

12In what follows, I will use documents10 from the archive of the Dirāzgīsū sayyid‑s to reconstruct their šarīʿa litigation in the dispute, from around 1251‑1267/1835‑1850, in response to ʿAbbās Ḫān’s refusal to acknowledge the iǧtihād of Āqā Muḥammad Mahdī and Ḥāǧǧī Mullā Riḍa Astarābādī and hence the validity of their ḥukm‑s.

2. The ukm of Āqā Muḥammad Mahdī

Stage 1: Šaftī’s endorsement

  • 11 For the text of the ḥukm, see Az Āstārā, VI, p. 213‑214.
  • 12 If issued after litigation in which the two sides were present, the ḥukm was usually preceded by a (...)
  • 13 Imāmī scholars agreed that adjudication against an absent side was valid for civil claims. The abse (...)

13The earliest dated document that sheds light on Dirāzgīsū šarīʿa litigation against ʿAbbās Ḫān is a transcript of Āqā Muḥammad Mahdī’s ḥukm.11 The ḥukm is dated 25 Muḥarram 1251/23 May 1835. It certifies the claim of the Dirāzgīsū sayyid‑s. Čūplānī and Mīr-Maḥalla were waqf and belonged to them. The text of the ruling is neither preceded by a summary of claims made by the claimant nor the reply of the defendant.12 This suggests that the ḥukm was probably issued in the absence of the defendant, ʿAbbās Ḫān.13

  • 14 Al‑Ḫwānsārī, Rawḍat al‑Jannāt, I, 89. For Aqā Muḥammad Mahdī’s role in an endowment dispute in Tehr (...)
  • 15 Az Āstārā, VII, p. 213.

14There is no evidence to indicate that Āqā Muḥammad Mahdī was an appointed judge in Isfahan.14 In practice, as an independent scholar, Āqā Muḥammad Mahdī’s judicial authority was therefore largely based on his percieved legal qualifications and the willingness of the Qāǧār authorities to enforce his ḥukm. In theory, according to the dominant Uṣūlī doctrine, a scholar had to be a qualified jurist in order to issue a valid ḥukm. But was Āqā Muḥammad Mahdī a qualified jurist? The scribe who prepared the transcript of his ḥukm for the Dirāzgīsū certainly thought so. After quoting Āqā Muḥammad Mahdī’s name he adds the expression muǧtahid al‑ʿaṣr wa‑l‑zamān (the jurist of the age).15 As we shall see ʿAbbās Ḫān who probably received one of these transcripts was less certain.

  • 16 Az Āstārā, VII, p. 143‑144.
  • 17 Az Āstārā, VII, p. 213‑214. This transcript (sawād) of Aqā Muḥammad Mahdī’s ḥukm and the endorsemen (...)

15An official decree (farmān) from the šāh in Tehran suggests that the ḥukm of Āqā Muḥammad Mahdī had no discernible effect in Astarābād.16 This is confirmed by an endorsement (imḍāʼ‑i ḥukm) of the validity of Āqā Muḥammad Mahdī’s ḥukm dated 3 Ǧumādā II 1253/4 September 1837.17 This endorsement, copied along with the text of Āqā Muḥammad Mahdī’s ḥukm, was issued by Āqā Muḥammad Mahdī’s father-in-law, Muḥammad Bāqir Šaftī. The fact that the Dirāzgīsū had to seek an endorsement of Āqā Muḥammad Mahdī’s ḥukm two years after it was issued, suggests that not everyone in Astarābād acknowledged Āqā Muḥammad Mahdī’s judicial authority. The endorsement by Muḥammad Bāqir Šaftī on the other hand was a different matter. Šaftī’s position as the pre-eminent jurist of Iran perhaps of the entire Šīʿī world meant the validity of his sentence was difficult, perhaps impossible, to challenge.

  • 18 ʿAbbās Ḫān’s rule over Astarābād lasted approximately four years from around 1833‑1837, see Az Āstā (...)
  • 19 For the Quyūnlū-Develū Qāǧār rivalry, see Hambly 1991, p. 104‑43.
  • 20 Az Āstārā, VII, p. 162. It is likely that the lands in fact remained in ʿAbbās Ḫān’s possession. ʿA (...)

16The timing of Šaftī’s endorsement could not have been better. ʿAbbās Ḫān was no longer in power in Astarābād.18 The new governor, Muḥammad Nāṣir Ḫān, belonged to the rival Develū Qāǧār clan. The Develū Qāǧārs had long fought ʿAbbās Ḫān’s Quyūnlū Qāǧār clan for the governership of Astarābād.19 Muḥammad Nāṣir Ḫān was more sympathetic to the Dirāzgīsū cause. Provincial government decrees in the Dirāzgīsū archive suggest that ‘possession’ of the two villages was delivered to the sayyid‑s shortly after Šaftī endorsed Aqā Muḥammad Mahdī’s ḥukm.20

  • 21 Muḥammad Nāṣir Ḫān did offer ʿAbbās Ḫān the option of arbitration with the Dirāzgīsū over their res (...)
  • 22 Az Āstārā, VI, p. 229: “the basis of the ‘possession’ [of Čuplānī and Mīr-Maḥallah] by Sayyid Faḍlu (...)

17ʿAbbās Ḫān could have challenged Āqā Muḥammad Mahdī’s ḥukm and even Šaftī’s endorsement by agreeing to submit to arbitration with the Dirāzgīsū.21 In general, when one side in a dispute had been able to legally certify their claim before a scholar, the other side had to submit to arbitration or negotiate an amicable settlement (ṣulḥ) in order to prevent confiscation of the disputed object. ʿAbbās Ḫān, however, did not agree to arbitration or an amicable settlement at this stage of litigation. It was a wise move. ʿAbbās Ḫān might have lost control of the two villages permanently if he risked a hasty arbitration after a jurist of Šaftī’s calibre upheld the Dirāzgīsū claim. There was also no need for an amicable settlement. As one Astarābādī cleric who supported ʿAbbās Ḫān noted, the Dirāzgīsū claim to Čūplānī and Mīr-Maḥalla rested entirely on the sentence of Muḥammad Bāqir Šaftī.22 This remark suggests that doubts about the validity of Āqā Muḥammad Mahdī’s own ḥukm had not yet been settled.

  • 23 Az Āstārā, VI, p. 215.

18The problem only intensified after Muḥammad Bāqir Šaftī’s death in 1261/1844. Now that Šaftī was dead was Aqā Muḥammad Mahdī’s ḥukm still valid? Šaftī’s failure to explicitly clarify that Āqā Muḥammad Mahdī was a qualified jurist forced the Dirāzgīsū to return to Iṣfahān. The Dirāzgīsū would turn this time to Āqā Muḥammad Mahdīʼs father, Muḥammad Ibrāhīm Kalbāsī. It was just as well. ʿAbbās Ḫān had exploited the opportunity presented by Šaftī’s death to ‘repossess’ Čūplānī and Mīr-Maḥalla.23

Stage 2: Kalbāsīʼs certification of iǧtihād

  • 24 Az Āstārā, VI, p. 215‑218.
  • 25 Az Āstārā, VI, 215.

19The next stage of litigation by the Dirāzgīsū can be worked out from an important document in the Dirāzgīsū archive.24 The document contains the text of a petition written by the Dirāzgīsū to Āqā Muḥammad Mahdī’s father, Muḥammad Ibrāhīm Kalbāsī. According to the petition, the Dirāzgīsū had enjoyed ‘possession’ of the two waqf villages for some years but after the death of Muḥammad Bāqir Šaftī, ʿAbbās Ḫān had ‘repossessed’ the villages without submitting to arbitration.25

  • 26 Az Āstārā, VI, p. 229 and Az Āstārā, VII, p. 584.

20There is evidence from other documents in the Dirāzgīsū archive to suggest that several notable clerics of Astarābād and the Caspian region had issued ‘ḥukm‑s’ which certified that Čūplānī and Mīr-Maḥalla belonged to ʿAbbās Ḫān.26 These ‘ḥukm‑s’ were probably identical to Aqā Muḥammad Mahdī’s ‘ḥukm’ to the Dirāzgīsū. They merely certified the claim of the claimant in the absence of the other side. Only the roles were reversed. It was ʿAbbās Ḫān this time who acting as the ‘claimant’ had presented his evidence to these clerics that the two villages were being illegally ‘possessed’ by the ‘defendant’ — the Dirāzgīsū.

21This process could in fact go on for years with both sides collecting large numbers of such ‘ḥukm‑s’ issued in the absence of the other side until they finally agreed to submit to arbitration or negotiate an amicable settlement (ṣulḥ). During this time the disputed object could change hands several times depending on the relative influence the litigants could bring to bear on the Qāǧār political authorities responsible for enforcement. The sharp distinction therefore between the ‘claimant’ and the ‘defendant’ in more centralized judicial systems such as in the Ottoman world quickly became blurred in the Qāǧār Iranian context.

22The Dirāzgīsū petition to Muḥammad Ibrāhīm Kalbāsī is interesting because it suggests that had ʿAbbās Ḫān agreed to arbitration and won he was legally entitled to the lands. It was ʿAbbās Ḫān’s ‘repossession’ without recourse to arbitration (bidūna tarāfuʿ) that was problemati for the Dirāzgīsū. In otherwords, though the judicial process was informal and therefore constantly negotiable, there was nevertheless a sense, among participants, of correct procedure.

23As far as ʿAbbās Ḫān was concerned, however, Āqā Muḥammad Mahdī’s ḥukm which had allegedly established the Dirāzgīsū claim was not issued by a qualified jurist. The ḥukm was therefore invalid. It might have had some validity due to the endorsement by the well-known jurist Muḥammad Bāqir Šaftī. Now that Šaftī was dead, however, ʿAbbās Ḫān was free to ‘repossess’ the lands based on ḥukm‑s he had obtained certifying the two villages were private property. There was no need for recourse to arbitration.

24It is this reasoning which explains the second part of the petition of the Dirāzgīsū to Aqā Muḥammad Mahdī’s father, Muḥammad Ibrāhīm Kalbāsī. The Dirāzgīsū wanted to know whether Aqā Muḥammad Mahdī’s ḥukm was still valid after Šaftī’s death and hence that ʿAbbās Ḫān’s ‘repossession’ without recourse to arbitration was illegal. What the Dirāzgīsū were after was an explicit certification from Kalbāsī that his son, Āqā Muḥammad Mahdī, was a qualified jurist and thus capable of independently issuing a valid ḥukm (nāfiḏ al‑ḥukm).

  • 27 For the Arabic text and a translation of the report of ʿUmar b. Ḥanẓala, see Calder 1980, p. 71‑72. (...)
  • 28 Az Āstārā, VI, p. 216.

25Kalbāsī provides the Dirāzgīsū with precisely the certification they required. Kalbāsī notes that after the death of Muḥammad Bāqir Šaftī he considered Āqā Muḥammad Mahdī to be the most knowledgeable (aʿlam) scholar alive in jurisprudence (fiqh). Kalbāsī also references a section of the famous report of ʿUmar b. Ḥanẓala from the sixth Šīʿī Imām Ǧaʿfar al‑Ṣādiq (d. 148/765) which according to Uṣūlī doctrine established the judicial authority of the qualified jurist.27 By referencing this report Kalbāsī was making it clear that Aqā Muḥammad Mahdī was a qualified jurist. According to Kalbāsī this meant that Aqā Muḥammad Mahdī’s rulings were always (har‑gāh) legally valid and binding (lāzim al‑ittibāʿ).28 The validity of Aqā Muḥammad Mahdī ḥukm, including his ḥukm to the Dirāzgīsū, was not contingent upon the endorsement of another living jurist like Šaftī.

  • 29 See in particular Az Āstārā, VII, p. 584‑585.

26Now that the Dirāzgīsū had confirmed that Āqā Muḥammad Mahdī was a qualified jurist whose ḥukm was valid, it did not matter whether Šaftī was dead or alive, ʿAbbās Ḫān would have no choice but to submit to arbitration. This at least is what the Dirāzgīsū hoped for at the end of this stage of litigation. Other documents in the Dirāzgīsū archive, however, suggest that getting ʿAbbās Ḫān to submit to arbitration using the ḥukm of Āqā Muḥammad Mahdī failed.29

27Though the Dirāzgīsū continued to maintain that Āqā Muḥammad Mahdī was a qualified jurist and that his ḥukm was valid, at least three documents suggest that the Dirāzgīsū were ultimately forced to devise a new plan of action against their opponent. This involved reviving a controversial ḥukm that had been issued in the 1790s by a local Astarābādī cleric, Ḥāǧǧī Mullā Riḍā Astarābādī.

3. The ukm of Ḥāǧǧī Mullā Riḍā Astarābādī

Stage 3: Certifying Ḥāǧǧī Mullā Riḍā Astarābādīʼs iǧtihād

  • 30 Az Āstārā, VII, p. 425: fulān āqā rā fulānī muǧtahid na‑mīdānad mā‑hā muǧtahid mī‑dānīm.

28The shift in the focus of the Dirāzgīsū litigation to the ḥukm of another cleric seems to be related to the main problem that had arisen in the dispute: what happened if one side considered a scholar to be a jurist and the other side did not? This was summed up later by the sentence ‘so and so does not recognise so and so to be a muǧtahid but we do’.30 It seems that ʿAbbās Ḫān’s continued refusal to accept that Aqā Muḥammad Mahdī was a qualified jurist, despite Kalbāsī’s certification, forced the Dirāzgīsū to look for a ḥukm issued by a cleric who ʿAbbas Ḫan did consider to be a jurist.

  • 31 Az Āstārā, VII, p. 444.
  • 32 Az Āstārā, VII, p. 445.

29The cleric chosen by the Dirāzgīsū was Ḥāǧǧī Mullā Riḍā Astarābādī, an outstanding local scholar of Astarābād of the previous generation. Ḥāǧǧī Mullā Riḍā Astarābādī had issued a ḥukm in favour of the Dirāzgīsū claim against ʿAbbās Ḫān’s predecessors Riḍā Ḫān and Imām Qulī Ḫan.31 Since ʿAbbās Ḫān’s possession of the villages was derived from Riḍā Ḫān and Imām Qulī Ḫan, it was argued that Ḥāǧǧī Mullā Riḍā Astarābādī’s ḥukm applied to him as well.32

30Moreover most people in Astarābād could remember the fact that ʿAbbās Ḫān had enforced some of Ḥāǧǧī Mullā Riḍā Astarābādī’s ḥukm‑s when he was in power as governor of Astarābād. This, at least for the Dirāzgīsū, was conclusive proof that ʿAbbās Ḫān considered Ḥāǧǧī Mullā Riḍā Astarābādī capable of independently issuing a valid ḥukm and hence of being a qualified jurist.

  • 33 Az Āstārā, VII, p. 248‑252.

31In order to ensure ʿAbbās Ḫān had no room to manoeuvre the Dirāzgīsū prepared a document33 in which they requested the leading clerics of Astarābād to certify that Ḥāǧǧī Mullā Riḍā Astarābādī had issued a ḥukm in support of the Dirāzgīsū claim; that Ḥāǧǧī Mullā Riḍā Astarābādī was a qualified jurist and that ʿAbbās Ḫān had enforced his ḥukm‑s when he was alive (see fig. 1).

  • 34 Az Āstārā, VII, p. 250: marḥūm ḥāǧǧī muǧtahid wa nāfiḏ al‑ḥukm dar astarābād būd.
  • 35 Az Āstārā, VII, p. 250: dar īn wilāyat nāfiḏ al‑ḥukm būdand.
  • 36 Az Āstārā, VII, p. 251: dar īn wilāyat wa sāʼir‑i buldān bi‑lā rayb wa šakk.

32The certifications of the Astarābādī clerics in the document provides fascinating insight into what was understood by the term muǧtahid in the context of šarīʿa litigation. Mullā ʿAbbās ʿAlī and Āqā Sayyid Muḥammad Mīr-Karīmī note for instance that Ḥāǧǧī Mullā Riḍā Astarābādī was a muǧtahid whose ḥukm was probative in the town of Astarābād.34 Šarīʿatmadār Aḫūnd Mullā Muḥammad ʿAlī Ašrafī felt that Ḥāǧǧī Mullā Riḍā Astarābādī was someone whose ḥukm was probative throughout the province (wilāya) of Astarābād.35 The most generous description comes from ʿabduhu ʿabbās ʿalī who says Ḥāǧǧī Mullā Riḍā’s ḥukm was probative (nāfiẕ) in all places.36 These certifications suggest an implicit acknowledgement that clerics who were only locally recognised as muǧtahid‑s were not in fact capable, in practice, of issuing a ḥukm in litigation that was probative beyond their home-town or region.

  • 37 Az Āstārā, VII, p. 252.
  • 38 Az Āstārā, VII, p. 252: ḥukm‑i ū rā bar ḫūd wa ghayra jārī mī‑namūdam.
  • 39 Az Āstārā, VII, p. 250.
  • 40 Az Āstārā, VII, 249: wa ʿabbās ḫān īšān rā muǧtahid‑i nāfiḏ al‑ḥukm mī‑dānistan šakkī wa šubha‑ī nī (...)

33The certifications of the Astarābādī clerics also suggest that there was a perceived link between the enforcement of ḥukm‑s and a scholar’s status as a muǧtahid. Mullā ʿAlī Akbar notes for example that Ḥāǧǧī Mullā Riḍā Astarābādī possessed all the qualities of a muǧtahid and his ḥukm in litigation was valid.37 Mullā ʿAlī Akbar notes further that not only did he personally follow Ḥāǧǧī’s ḥukm‑s but he had occasion to enforce them upon others.38 In other words the practical enforcement of a scholar’s ḥukm was an important indication in this period that he had achieved the rank of a muǧtahid. More importantly if you enforced a scholar’s ḥukm it meant you acknowledged he was a muǧtahid. This is precisely what some of the other Astarābādī clerics confirmed with regard to ʿAbbās Ḫān. ʿAbbās Ḫān used to enforce Ḥāǧǧī’s ḥukm‑s when he was the governor of Astarābād. In fact he even enforced the ḥukm‑s of clerics of lower rank (past‑tar).39 There could be no doubt therefore that ʿAbbās Ḫān considered Ḥāǧǧī Mullā Riḍā Astarābādī capable of independently issuing a valid ḥukm in litigation (nāfiẕ al‑ḥukm) and hence of being a muǧtahid.40

Fig. 1 : x = Certifications by the ʿulamāʾof Astarābād

Astarābādī ʿulamāʾ Certification of the issuance of the ḥukm by Ḥāǧǧī Mullā Riḍā Certification Ḥāǧǧī Mullā Riḍā was a muǧtahid/ nāfiḏ al‑ḥukm Certification of ʿAbbās Ḫān’s recognition of Ḥāǧǧī Mullā Riḍā’s iǧtihād/enforcement of his ḥukm‑s
1. Āqā Sayyid Ǧaʿfar al‑Ḥusaynī x - x
2. Naṣrullāh al‑Ḥusaynī x - -
3. Mullā ʿAbbās ʿAlī x x x
4. Mullā Riḍāʾ ʿAlī Čiyākandī x x x
5. Mullā Aḥmad x x x
6. Āqā Sayyid Muḥammad Mīr-Karīmī x x x
7. Āqā Sayyid Taqī Mīr-Karīmī - x -
8. ʿAbduhu ʿAbbās ʿAlī 1241  x x -
8. Mullā Isḥāq x x -
9. ʿAbduhu al‑Rāǧī Mullā Riḍā x - -
10. Šarīʿatmadār Āḫūnd Mullā Muḥammad ʿAlī Ašrafī x x -
11. Muḥammad Taqī x x -
12. Mullā ʿAlī Akbar x x -
  • 41 Az Āstārā, VI, p. 219‑220 and Az Āstārā, VII, p. 179.
  • 42 Az Āstārā, VII, p. 179: aḥkām‑i īšān […] maʿmūl būd.
  • 43 Al‑Astarābādī, Šarḥ‑i ḥāl‑i ʿulamāʼ, p. 149‑154.
  • 44 Al‑Astarābādī, Šarḥ‑i ḥāl‑i ʿulamāʼ, p. 150. For Bihbahānī see Tunikābunī, Qiṣaṣ, p. 198‑204 and Al (...)
  • 45 See the example of Mīrzā Aḥmad (d. 1265/1848‑49), who is called a muǧtahid by his contemporaries an (...)

34Remarkably despite these certifications, in 1264/1848 and again two years later in 1267/1850‑1851, the Dirāzgīsū were still asking local Astarābādī scholars to confirm that Ḥāǧǧī Mullā Riḍā Astarābādī was a qualified jurist capable of independently issuing a valid ḥukm (nāfiḏ al‑ḥukm).41 The new certifications one again emphasised that Ḥāǧǧī Mullā Riḍā Astarābādī was a scholar whose ḥukm‑s were being acted upon.42 Whereas the certification of Aqā Muḥammad Mahdī’s iǧtihād was probably required because he was a relatively unknown scholar living far away, Ḥāǧǧī Mullā Riḍā Astarābādī according to the biographical sources had been one of the leading clerics of Astarābād.43 He had been a student of Bihbahānī (d. 1205/1791), the leading Uṣūlī jurist in Iraq.44 When Ḥāǧǧī Mullā Riḍā returned home from his studies he took an active part in the šarīʿa affairs of Astarābād but does not seem to have been formally called a muǧtahid by his contemporaries, as some scholars were when they returned to Iran.45

  • 46 Werner 2000, p. 239‑241.

35During the late eighteenth and early nineteenth century, when Ḥāǧǧī Mullā Riḍa Astarābādī was active, the term muǧtahid was still reserved for a handful of leading Uṣūlī scholars even though it became more widely applied during the course of the nineteenth century.46 This might explain why, especially after Ḥāǧǧī Mullā Riḍa Astarābādī’s death, it became possible to challenge his status as a muǧtahid.

  • 47 Az Āstārā, VII, p. 252.

36The fact that Ḥāǧǧī Mullā Riḍā Astarābādī was not formally called a muǧtahid by his contemporaries during his lifetime does not of course mean he was not a qualified jurist. This seems to have been the Dirāzgīsū argument. The Dirāzgīsū were keen to obtain certifications of Ḥāǧǧī Mullā Riḍā Astarābādī’s iǧtihād from the few remaining Astarābādī clerics who still remembered him. One of them, a contemporary of Ḥāǧǧī Mullā Riḍā Astarābādī, certified that he had not seen any one doubt Ḥāǧǧī Mullā Riḍā Astarābādī’s iǧtihād when Ḥāǧǧī was alive.47

37The Dirāzgīsū were in fact largely successful in establishing Ḥāǧǧī Mullā Riḍā Astarābādī’s credentials as a qualified jurist. Doubts over Ḥāǧǧī Mullā Riḍā Astarābādī’s iǧtihād did not emerge in subsequent litigation. As it became impossible to challenge the validity of Ḥāǧǧī Mullā Riḍā Astarābadī’s ḥukm on the basis of his qualifications as a jurist, litigation in the next and final stage of the dispute centred on the circumstances in which the ḥukm had been issued. This proved to be a far more difficult problem to resolve. The doctrinal blurring of the roles of the qāḍī and the muftī in the figure of the independent Uṣūlī scholar jurist (muǧtahid) made it easier to challenge the probative force of ḥukm‑s. This was especially the case when the scholar who issued the ruling was dead and it was not explicit from the text of the ḥukm whether he had acted as a qāḍī or a muftī.

38Like Aqā Muḥammad Mahdī, Ḥāǧǧī Mullā Riḍā Astarābādī was approached by the Dirāzgīsū as an independent scholar. If so then his ḥukm to them was either to be construed as the opinion of a qualified jurist or the legal certification of the claim of one side issued in the absence of the other side, or the outcome of arbitration with both sides present. Though a legal certification of a claim issued in the absence of one side (ḥukm bar ġāʼib) was considered valid, it was reversible if the absent side agreed to submit to arbitration and won or if the two sides negotiated an amicable settlement. Conversely a ḥukm that was the outcome of arbitration with both sides present (dar ḥuḍūr‑i ṭarafayn) was not easily reversible and, at least in theory, brought closure to the dispute.

  • 48 Az Āstārā, VI, p. 220‑225 and Az Āstārā, VII, p. 560‑561.
  • 49 For the text of the ruling see Az Āstārā, VII, p. 248.
  • 50 Az Āstārā, VII, p. 122‑123. The Dirāzgīsū had to settle for slightly more than half of Čūplānī whic (...)

39For the Dirāzgīsū, Ḥāǧǧī Mullā Riḍā Astarābādī’s ḥukm had been issued to them as the outcome of arbitration with both sides present. It had thus settled the dispute decisively in their favour. ʿAbbās Ḫān’s descendants argued however that it was merely Ḥāǧǧī’s non-binding opinion to the Dīrāzgīsū on the case.48 Since the text of the ḥukm was ambiguous49 and the circumstances in which it had been written could not be easily worked out, the Dirāzgīsū were ultimately left with no choice but to negotiate an amicable settlement (ṣulḥ) with ʿAbbās Ḫān’s descendants on largely unfavourable terms.50

Conclusion

  • 51 Calder 1980, p. 70.
  • 52 Calder 1980, p. 90.
  • 53 For a list of these qualities see for example Calder 1980, p. 241‑242, Gleave 2002, p. 104‑106.

40Judicial appointment was the prerogative of the Šīʿī Imām or his representative (nāʼib) not de facto governments.51 During the Imām’s absence it was a scholarʼs possession of the requisite qualities for judicial activity which rendered his acts valid.52 For the dominant Uṣūlī school of Twelver Šīʿī jurisprudence these were the qualities possessed by the qualified jurist or muǧtahid.53

  • 54 Calder 1980, p. 84 and for the similar Aḫbārī view, Gleave 2000.
  • 55 Calder 1980, p. 85.
  • 56 Calder 1980, p. 84. According to Šahīd II, judicial competence could not be established by the repo (...)

41According to the Safavid era Uṣūlī writer, Šahīd II (d. 960/1559), whether a given scholar possessed the requisite qualities of a muǧtahid was to be established via the testimony of two just witnesses (bi‑šahādat ʿadlayn) or the common report of a group (šiyāʼ) whose truth-telling prevailed as a supposition.54 The testimony in both cases did not have to be validated before a judge such that one judge confirmed the emergence of a new judge.55 The judicial competence of the scholar simply became established for all those who heard the testimony of the witnesses regarding it.56

42If ʿAbbās Ḫān had become aware either through common report or the testimony of two just witnesses that Aqā Muḥammad Mahdī and Ḥāǧǧī Mullā Riḍā Astarābādī were muǧtahid‑s, he clearly denied it. This was clearly a problem with the informal process envisaged by Šahīd II. Qāǧār era Uṣūlīs, like Mīrzā‑yi Qummī (d. 1231/1816) and Mullā Aḥmad Narāqī (d. 1245/1829), realised that the only way to reconcile the doctrinal ideal with actual practice was to propose a formal procedure.

  • 57 Al‑Ǧūšqānī, Rasāʼil, II, p. 357‑370. I am indebted to H. Modaressi for drawing my attention to this (...)
  • 58 Al‑Ǧūšqānī, Rasāʼil, II, p. 362. Qummī and Narāqī did not agree on the validity of a ḥukm issued be (...)
  • 59 Al‑Ǧūšqānī, Rasāʼil, II, p. 365.

43Qummī and Narāqī argued that in the context of šarīʿa litigation one judicially competent scholar would have to confirm the emergence of another one if doubts were raised over judicial competence.57 According to Qummī and Narāqī separate litigation over judicial competence (qadḥ wa ǧarḥ‑i ḥākim) would have to occur each time the judicial competence of a scholar was not fully established for both sides.58 This litigation had to take place before a second scholar whose judicial competence both sides accepted (musallam‑i ṭarafayn). The second scholar would have to issue a ḥukm on the first scholar’s fitness to judge.59 This procedure assumed, of course, that there was always a senior scholar at hand whose judicial competence was not in doubt who could decide on the judicial competence of a scholar whose competence was in doubt.

44This type of litigation over judicial competence was perhaps less common in a more centralized judicial system with state appointed judges such as in the Ottoman world. In the decentralized Qāǧār context, however, where litigants were free to refer to independent scholars and where the validity of a ḥukm in litigation was doctrinally contingent upon the possession of requisite qualities, it seems to have become increasingly significant.

45Litigation of this kind was particularly relevant in cases where a powerful litigant like ʿAbbās Ḫān tried to deny judicial competence as a legal strategy to circumvent the enforcement of the ḥukm of a scholar. This seems to have been why the Dirāzgīsū had to get the well-known jurist Šaftī to endorse the validity of the ḥukm of Āqā Muḥammad Mahdī and then later had to ask another senior jurist, Kalbāsī, to certify that Aqā Muḥammad Mahdī, was a qualified jurist and thus capable of independently issuing a valid ḥukm (nāfiḏ al‑ḥukm). In theory, Kalbāsī’s certification should have settled doubts over Āqā Muḥammad Mahdī’s juristic qualifications and hence the validity of his ḥukm to the Dirāzgīsū. In practice, as we saw, despite Kalbāsī’s certification of Aqā Muḥammad Mahdī’s iǧtihād, ʿAbbās Ḫān still refused to accept he was a qualified jurist.

46This in turn forced the Dirāzgīsū to try and revive the ḥukm of Ḥāǧǧī Mullā Riḍā Astarābādī. Astarābādī’s ḥukm was hardly ideal as later litigation in the dispute would reveal. Its text was ambiguous. No one was quite sure in what circumstances it had been issued to the Dirāzgīsū in the 1790s. Nevertheless it was considered appropriate because ʿAbbās Ḫān had enforced ḥukm‑s of Ḥāǧǧī Mullā Riḍā Astarābādī in the past. This meant ʿAbbās Ḫān could not deny, as he had done in the case of Āqā Muḥammad Mahdī, that he did not consider Ḥāǧǧī Mullā Riḍā Astarābādī to be capable of independently issuing a valid ḥukm and hence of being a qualified jurist.

  • 60 Kondo 2009, p. 57.
  • 61 Kondo 2009, p. 57.

47There was a close link made here between the scholar’s ability to independently issue a valid ḥukm and his status as a qualified jurist.60 This seems to have been an important effect of Uṣūlī doctrine on judicial practice. When precisely this perception became widespread is difficult to determine. Besides the examples of Aqā Muhammad Mahdī and Ḥāǧǧī Mullā Riḍa Astarābādī, another early certification of this kind was issued by the renowned Uṣūlī jurist, Šayḫ Muḥammad Ḥasan Naǧafī Ṣāḥib Ǧawāhir (d. 1228/1850). Ṣāḥib Ǧawāhir who lived in Naǧaf, Iraq, confirmed, during the proceedings of a waqf dispute in Tehran, that a certain Āḫūnd Mullā ʿAlī Aṣġar was a qualified jurist whose ḥukm was valid.61

  • 62 See for example Muḥammad Bāqir Sabzawārī (d. 1090/1679) in Gleave 2000, p. 115.
  • 63 Al‑Qummī, Al‑Rasāʼil, II, p. 601, Al‑Narāqī, Mustanad al‑šīʿa, II, p. 518, Al‑Naǧafī, Ǧawāhir, XL, (...)

48Though Uṣūlī writers agreed that only the ḥukm of an absolute jurist (muǧtahid muṭlaq), a scholar capable of exercising iǧtihād in all areas of the law, was valid in litigation, concessions were nevertheless made to accommodate this requirement to the exigencies of practice. Several prominent Uṣūlīs accepted the validity of the ḥukm a partial jurist (muǧtahid mutaǧazzʼī), a scholar who was only qualified to exercise iǧtihād in some areas of the law but not others, if access to an absolute jurist was difficult.62 In the late eighteenth and early nineteenth century, Narāqī, Qummī and later Ṣāḥib Ǧawāhir and Šayḫ Murtaḍā Anṣārī (d. 1281/1864), held that the ḥukm of a partial jurist in litigation was valid even if an absolute jurist was available and accessible.63 This was because the juristic ability of the partial jurist was, in areas of the law where he was qualified to exercise iǧtihād, equivalent to or in some cases perhaps even superior to that of the available absolute jurist.

  • 64 Al‑Ǧūšqānī, Rasāʼil, II, p. 356‑357 and Al‑Narāqī, Mustanad al‑šīʿa, II, p. 517‑518.
  • 65 Al‑Naǧafī, Ǧawāhir, XL, p. 19.
  • 66 Al‑Anṣārī, Al‑Qaḍāʼ wa al‑šahādāt, XXIII, p. 39‑40.

49Moreover there was an important debate among Qāǧār era Uṣūlī jurists whether a non-muǧtahid follower (muqallid) of a muǧtahid could issue a valid ḥukm in litigation based on the opinions of his muǧtahid on the particulars of a case. Narāqī for example held that the ḥukm of a non-muǧtahid follower (muqallid) was valid if the muqallid had the permission of his muǧtahid before arbitration occurred and if both the litigants were also muqallid‑s of the same muǧtahid. If, however, the muǧtahid was available and accessible the litigants had to turn to him instead of to the muqallid due to the necessity of referring to the most learned.64 According to Ṣāḥib Ǧawāhir, however, a muǧtahid could authorise his muqallid to decide cases based on his opinions.65 The authorised muqallid thus did not require his muǧtahid’s permission in each case to issue a valid ḥukm nor was it necessary for litigants to refer to the muǧtahid if the muǧtahid was available. Šayḫ Murtaḍā Anṣārī, however, rejected Ṣāḥib Ǧawāhir’s position and sought to prove that, with or without the authorisation (tawkīl) of his muǧtahid, a muqallid’s ḥukm in litigation was invalid.66

  • 67 Al‑Ǧūšqānī, Rasāʼil, II, p. 369.

50It is likely that such theoretical hair splitting among Uṣūlī jurists over the amount of iǧtihād a scholar required to issue a valid ḥukm was not relevant in day-to-day Qāǧār šarīʿa litigation. As Narāqī himself noted most people referred their cases to ordinary clerics without making a distinction between who was a qualified jurist and who was not.67 Certifications of the iǧtihād of scholars could, however, become significant in more complex and often decentralized Qāǧār šarīʿa litigation. In such situations it became common practice to have the validity of the ḥukm of a less well-known scholar endorsed by one or more recognised jurists. These types of endorsements were termed imḍāʼ‑i ḥukm. The endorsement of a scholar’s ḥukm by a well-known jurist did not necessarily mean that the scholar who issued the ḥukm was himself a qualified jurist capable of independently issuing a valid ḥukm. This explains why despite Muḥammad Bāqir Šaftī’s endorsement of Aqā Muḥammad Mahdī’s ruling, the Dirāzgīsū still needed a more explicit certification of Aqā Muḥammad Mahdī’s iǧtihād from his father, Kalbāsī. Litigation by the Dirāzgīsū also seems to suggest that endorsements, in this case the one issued by Šaftī, lost their probative force after the death of the jurist.

  • 68 For examples, see Kondo 2009, p. 59‑65. See also the iǧāza of iǧtihād issued by Ṣādiq Ṭabāṭabā’ī Mu (...)
  • 69 Kondo 2009, p. 60.

51Parallel to the rise of imḍāʼ‑i ḥukm and certifications of iǧtihād in Qāǧār šarīʿa litigation, was the phenomenon of licences (iǧāza) in this period that certified that a scholar had attained the rank of a muǧtahid.68 As Kondo has demonstrated possessing a licence did not mean that the scholar was in fact a qualified jurist.69 There was, however, a popular perception that possessing an iǧāza of iǧtihād meant someone was a muǧtahid.

52In the same way for most ordinary people the fact that a scholar had reached the stage where he issued ḥukm‑s meant, in accordance with the dominant doctrine, that he must be a qualified jurist. This was probably why the scribe who prepared the transcript of Āqā Muḥammad Mahdī’s ḥukm in the 1840s added he was ‘the jurist of the age’. As in the case of possessing an iǧāza of iǧtihād, however, the fact that a scholar issued ḥukm‑s in litigation did not necessarily mean that he was a qualified jurist. In reality, there were many Qāǧār scholars whose ḥukm‑s were regularly enforced by the Qāǧār authorities who certainly did not possess the qualities of a qualified jurist. At the same time there were other scholars who never issued ḥukm‑s or whose ḥukm‑s were not enforced by the authorities who were qualified jurists.

  • 70 Az Āstārā VII, p. 444.

53This seems to have become relevant in the case of Ḥāǧǧī Mullā Riḍā Astarābādī. Astarābādī’s ḥukm in favour of the Dirāzgīsū issued during the time of Riḍa Ḫān and Imām Qulī Ḫān was not enforced.70 It is likely that after Ḥāǧǧī Mullā Riḍā Astarābādī’s death this was interpreted to mean that it was because he was not a qualified jurist. This might explain why the Dirāzgīsū tried to obtain confirmations that Ḥāǧǧī Mullā Riḍā Astarābādī had issued other ḥukm‑s while he was alive which were enforced.

54In concluding, litigation by the Dirāzgīsū focused on trying to establish the juristic qualifications, and hence judicial competence, of two scholars who certified their claim in a land dispute. By doing this the Dirāzgīsū hoped to have a valid ḥukm in their hands which could be used to compel their opponent to submit to arbitration over two villages they claimed as an ancient family waqf. The significance of such litigation over the judicial competence of scholars can be attributed to the unopposed dominance of Uṣulī doctrine in Iran during this period and judicial decentralization which seems to have occurred after the fall of the Safavids in 1722.

  • 71 Lambton 1991, p. 21.

55Whether or not the centralizing judicial reforms of the Nāṣirī era (1848‑1896) which began from about the middle of the nineteenth century helped to reduce some of the ambivalence and uncertainty over the binding force of ḥukm‑s in šarīʿa litigation remains to be investigated. The 1930 Pahlavī era regulations for judicial procedure in Iran still specified that all centrally appointed šarīʿa courts would have to be presided over by a qualified jurist.71 Since determining whether a cleric possessed all the requisite qualities of a qualified jurist remained subjective, judicial competence could, in a Twelver Šīʿī Uṣūlī context, potentially always be challenged during the occultation of the Imām. Nevertheless the theoretical accommodation of Qāǧār Uṣūlī jurists had opened the door to a more centralized šarīa court system administered by šarʿī judges who did not necessarily have to be absolute jurists.

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Tunikābunī, Muḥammad b. Sulaymān, Qiṣaṣ al‑ʿUlamāʾ, ed. Muḥammad Hādī Amīnī, Tehran, 1396/1976.

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Calder, Norman, 1987, “Legitimacy and Accommodation in Safavid Iran: The Juristic Theory of Muḥammad Bāqir al‑Sabzavārī (d. 1090/1679)”, Iran 25, p. 91‑105.

Calder, Norman, 1989, “Doubt and Prerogative: The Emergence of an Imāmī Shīʿī Theory of Ijtihād”, Studia Islamica 70, p. 57‑78.

Gleave, Robert, 2000, “Two classical Shiʿi theories of qaḍāʾ”, in G.R. Hawting, J.A. Mojaddedi and A. Samely (eds.), Islamic and Middle Eastern Texts and Traditions in memory of Norman Calder, Oxford, Oxford University Press, p. 105‑120.

Gleave, Robert, 2002, “Political Aspects of Modern Shiʿi Legal Discussions: Khumayni and Khuʼi on ijtihād and qaḍāʼ”, Mediterranean Politics 7, p. 96‑116.

Gleave, Robert, 2007, “The Qāḍī and the Muftī in Akhbari Shiʿi jurisprudence”, in P. Bearman, W. Heinrichs, B. G. Weiss (eds.), The Law Applied: Contextualising the Islamic Shariʿa, New York, IB Tauris, p. 235‑258.

Hambly, Gavin R. G, 1991, “Āḡā Muḥammad Khān and the Establishment of the Qājār Dynasty”, in Peter Avery, G. R. G. Hambly, C. Melville (eds.), Cambridge History of Iran: From Nadir Shah to the Islamic Republic, Cambridge, Cambridge University Press, vol. 7, p. 104‑43.

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Sangalǧī, Muḥammad, 1347/1968, Qaḍā dar Islām, Tihrān, Instišārāt‑i Dānišgāh‑i Tihrān.

Schneider, Irene, 2002, “Muḥammad Bāqir Šaftī (1180‑1260/1766‑1844) und die Isfahaner Gerichtsbarkeit”, Der Islam 79/2, p. 240‑273. DOI: 10.1515/islm.2002.79.2.240

Tyan, Emile, 1960, Histoire de l'organisation judiciaire en pays d'Islam, Leiden, Brill, 1960.

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Notes

1 Calder 1980, p. 70‑73 and Tyan 1960, p. 177.

2 Gleave 2007, p. 237‑238.

3 Gleave 2007, p. 239.

4 Calder 1989, p. 59‑60.

5 Calder 1987, p. 92‑96 and Gleave 2007, p. 249‑251.

6 See for example Al‑Šaftī, Maqāla fī taḥqīq iqāmat al‑ḥudūd.

7 Modern day Gurgān in North Eastern Iran.

8 The lands belonging to Čūplānī and Mīr-Maḥalla were used to cultivate husked rice (šaltūk). Their boundaries, water rights and ownership were repeatedly contested since Safavid times, see Az Āstārā, VIII, p. 222‑230.

9 For Šaftī see Tunikābunī, Qiṣaṣ al‑ʿulamāʼ, p. 135‑168 and Schneider 2002. For Kalbāsī (also Karbāsī), see Tunikābunī, Qiṣaṣ, p. 117‑122 and Al‑Ḫwānsārī, Rawḍat al‑Jannāt, I, p. 83‑89.

10 The Dirāzgīsū documents were transcribed in the 1970s and published by Manūčihir Sutūda and Masīḥ Ḏabīhī, see Az Āstārā, VI and VII.

11 For the text of the ḥukm, see Az Āstārā, VI, p. 213‑214.

12 If issued after litigation in which the two sides were present, the ḥukm was usually preceded by a summary of claims made by each side and evidence they had presented before the scholar, see Werner 2000, p. 372‑375 and Panǧāh wa yak ʿarīḍa, p. 29‑39.

13 Imāmī scholars agreed that adjudication against an absent side was valid for civil claims. The absent side retained the right to have its evidence reviewed if it appeared in court (yakūnu l‑ġāʼib ʿalā ḥuǧǧatihi law ḥaḍara), see Sangalaǧī 1347/1968, p. 186‑187. In the decentralized Qāǧār context, appearing in court meant submitting to the arbitration of a scholar both sides accepted, see Tārīḫ‑i Bīgdilī, p. 292‑293.

14 Al‑Ḫwānsārī, Rawḍat al‑Jannāt, I, 89. For Aqā Muḥammad Mahdī’s role in an endowment dispute in Tehran, see Kondo 2003, p. 119.

15 Az Āstārā, VII, p. 213.

16 Az Āstārā, VII, p. 143‑144.

17 Az Āstārā, VII, p. 213‑214. This transcript (sawād) of Aqā Muḥammad Mahdī’s ḥukm and the endorsement by Šaftī in the Dirāzgīsū archive must have been prepared before 1260/1844, when Šaftī was still alive, because the scribe adds the expression dāma ẓilluhu wa zuyyida faḍluhu wa tawfīqātuhu (may God extend his shadow and increase his prosperity and success) after Šaftī’s name.

18 ʿAbbās Ḫān’s rule over Astarābād lasted approximately four years from around 1833‑1837, see Az Āstārā, VII, p. 143‑144, p. 158 and Iʿtimād al‑Saltana, Tārīḫ‑i Muntaẓam‑i Nāṣirī, p. 1636.

19 For the Quyūnlū-Develū Qāǧār rivalry, see Hambly 1991, p. 104‑43.

20 Az Āstārā, VII, p. 162. It is likely that the lands in fact remained in ʿAbbās Ḫān’s possession. ʿAbbās Ḫān was temporarily compelled, however, by the new provincial government to send the Dirāzgīsū a share of revenues and thus acknowledge their right to ‘ownership’ as the trustees and beneficiaries of Mīr Rūḥullāh’s waqf.

21 Muḥammad Nāṣir Ḫān did offer ʿAbbās Ḫān the option of arbitration with the Dirāzgīsū over their respective claims to the lands, see Az Āstārā, VII, p. 162.

22 Az Āstārā, VI, p. 229: “the basis of the ‘possession’ [of Čuplānī and Mīr-Maḥallah] by Sayyid Faḍlullāh [the Dirāzgīsū] was the ḥukm of the late Proof of Islam [Muḥammad Bāqir Šaftī] and nothing else, and that [ḥukm] has now become invalid” (āqā sayyid faḍlullāh mustanad‑i taṣarruf‑i ū ḥukm‑i marḥūm ḥuǧǧat al‑islām būda u bas wa ān bī iʿtibār šud). This remark would also appear to suggest that endorsements were not considered to be valid after the death of a jurist in Qāǧār šarīʿa litigation.

23 Az Āstārā, VI, p. 215.

24 Az Āstārā, VI, p. 215‑218.

25 Az Āstārā, VI, 215.

26 Az Āstārā, VI, p. 229 and Az Āstārā, VII, p. 584.

27 For the Arabic text and a translation of the report of ʿUmar b. Ḥanẓala, see Calder 1980, p. 71‑72. See also the translation in Gleave 2000, p. 119‑120.

28 Az Āstārā, VI, p. 216.

29 See in particular Az Āstārā, VII, p. 584‑585.

30 Az Āstārā, VII, p. 425: fulān āqā rā fulānī muǧtahid na‑mīdānad mā‑hā muǧtahid mī‑dānīm.

31 Az Āstārā, VII, p. 444.

32 Az Āstārā, VII, p. 445.

33 Az Āstārā, VII, p. 248‑252.

34 Az Āstārā, VII, p. 250: marḥūm ḥāǧǧī muǧtahid wa nāfiḏ al‑ḥukm dar astarābād būd.

35 Az Āstārā, VII, p. 250: dar īn wilāyat nāfiḏ al‑ḥukm būdand.

36 Az Āstārā, VII, p. 251: dar īn wilāyat wa sāʼir‑i buldān bi‑lā rayb wa šakk.

37 Az Āstārā, VII, p. 252.

38 Az Āstārā, VII, p. 252: ḥukm‑i ū rā bar ḫūd wa ghayra jārī mī‑namūdam.

39 Az Āstārā, VII, p. 250.

40 Az Āstārā, VII, 249: wa ʿabbās ḫān īšān rā muǧtahid‑i nāfiḏ al‑ḥukm mī‑dānistan šakkī wa šubha‑ī nīst.

41 Az Āstārā, VI, p. 219‑220 and Az Āstārā, VII, p. 179.

42 Az Āstārā, VII, p. 179: aḥkām‑i īšān […] maʿmūl būd.

43 Al‑Astarābādī, Šarḥ‑i ḥāl‑i ʿulamāʼ, p. 149‑154.

44 Al‑Astarābādī, Šarḥ‑i ḥāl‑i ʿulamāʼ, p. 150. For Bihbahānī see Tunikābunī, Qiṣaṣ, p. 198‑204 and Algar 1989, p. 98‑99.

45 See the example of Mīrzā Aḥmad (d. 1265/1848‑49), who is called a muǧtahid by his contemporaries and in official documents when he returned from Iraq to his home-town Tabrīz, in Werner 2000, p. 240.

46 Werner 2000, p. 239‑241.

47 Az Āstārā, VII, p. 252.

48 Az Āstārā, VI, p. 220‑225 and Az Āstārā, VII, p. 560‑561.

49 For the text of the ruling see Az Āstārā, VII, p. 248.

50 Az Āstārā, VII, p. 122‑123. The Dirāzgīsū had to settle for slightly more than half of Čūplānī which they ‘revived’ as waqf. ʿAbbās Ḫān’s descendants retained the remainder of Čūplānī and all of the much larger and more valuable village of Mīr-Maḥalla as private property.

51 Calder 1980, p. 70.

52 Calder 1980, p. 90.

53 For a list of these qualities see for example Calder 1980, p. 241‑242, Gleave 2002, p. 104‑106.

54 Calder 1980, p. 84 and for the similar Aḫbārī view, Gleave 2000.

55 Calder 1980, p. 85.

56 Calder 1980, p. 84. According to Šahīd II, judicial competence could not be established by the report of a single individual, nor by the scholar’s own claim even if it was supported by circumstantial evidence (qarāʼin), nor by a written document (walā bi‑l‑ḫaṭṭ) even if such a document were to be free from forgery.

57 Al‑Ǧūšqānī, Rasāʼil, II, p. 357‑370. I am indebted to H. Modaressi for drawing my attention to this important Uṣūlī discussion.

58 Al‑Ǧūšqānī, Rasāʼil, II, p. 362. Qummī and Narāqī did not agree on the validity of a ḥukm issued before litigation over judicial competence had taken place. Qummī held that the ḥukm remained probative while Narāqī argued that it was invalid, see Al‑Ǧūšqānī, Rasāʼil, II, p. 363, 365.

59 Al‑Ǧūšqānī, Rasāʼil, II, p. 365.

60 Kondo 2009, p. 57.

61 Kondo 2009, p. 57.

62 See for example Muḥammad Bāqir Sabzawārī (d. 1090/1679) in Gleave 2000, p. 115.

63 Al‑Qummī, Al‑Rasāʼil, II, p. 601, Al‑Narāqī, Mustanad al‑šīʿa, II, p. 518, Al‑Naǧafī, Ǧawāhir, XL, p. 34, Al‑Anṣārī, Al‑Qaḍāʼ wa al‑šahādāt, XXIII, p. 32. For the views of two notable twentieth century Uṣūlīs, al‑Ḫūmaynī (d. 1989) and al‑Ḫūʼī (d. 1992), see Gleave 2002, p. 111.

64 Al‑Ǧūšqānī, Rasāʼil, II, p. 356‑357 and Al‑Narāqī, Mustanad al‑šīʿa, II, p. 517‑518.

65 Al‑Naǧafī, Ǧawāhir, XL, p. 19.

66 Al‑Anṣārī, Al‑Qaḍāʼ wa al‑šahādāt, XXIII, p. 39‑40.

67 Al‑Ǧūšqānī, Rasāʼil, II, p. 369.

68 For examples, see Kondo 2009, p. 59‑65. See also the iǧāza of iǧtihād issued by Ṣādiq Ṭabāṭabā’ī Muǧtahid‑i Sangalaǧī (d. 1300/1883) on 29 Ẕū al‑Ḥiǧǧa 1284/22 April 1868 in Asnād‑i Maḥkama, p. 93.

69 Kondo 2009, p. 60.

70 Az Āstārā VII, p. 444.

71 Lambton 1991, p. 21.

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Zahir Bhalloo, « Judging the Judge: Judicial Competence in 19th Century Iran »Bulletin d’études orientales, LXIII | 2015, 275-293.

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Zahir Bhalloo, « Judging the Judge: Judicial Competence in 19th Century Iran »Bulletin d’études orientales [En ligne], LXIII | 2015, mis en ligne le 01 avril 2017, consulté le 18 avril 2024. URL : http://journals.openedition.org/beo/3153 ; DOI : https://doi.org/10.4000/beo.3153

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Zahir Bhalloo

University of Oxford

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