Shii News – ‘Judicial competence in 19th century Iran’

Zahir Bhalloo, “Judging the judge: Judicial competence in 19th century Iran”, Bulletin d’études orientales, 63 (2014), pp.275-293.

Abstract
This paper investigates the impact of the dominant Imāmī Šīʻī Uṣūlī doctrinal model in nineteenth century Iran of the jurist (muǧtahid) as arbiter (qāḍī al‑taḥkīm) on judicial practice. By drawing on a “litigant archive” from this period, I discuss one problem that emerged from the dominant doctrinal model. It became possible for litigants to challenge the binding force of a ḥukm by claiming they did not recognize the scholar who issued the ḥukm to be a muǧtahid and hence judicially competent. This ultimately forced Uṣūlī writers to come up with a juridical framework where one recognized muǧtahid would have to confirm the emergence of another one in cases where a scholar’s juristic qualifications (iǧtihād) were challenged. In practice, as I demonstrate, even if a scholar’s judicial competence as a muǧtahid was confirmed by another recognized muǧtahid, it was still no guarantee that the scholar’s ḥukm would be enforced.

Keywords
decentralization, judicial competence, qaḍāʼ, Uṣūlī, muǧtahid, judgement, Qājār, Iran.