Economic conditions in the region

There has been a lively debate on the nature of the Iranian economy in the nineteenth century, focusing on the importance of such factors as population increase, urbanization, famine and drought, changes in production, and patterns of trade. In 1953, Lambton wrote that ‘the picture of the land revenue system and administration of the early Qajars is one of decay, maladministration, oppression and insecurity’, but the more recent consensus is expressed by Hambly: ‘Fath 'Ali Shah's reign ultimately afforded sufficient order and effective government to make possible some economic recovery … Fath 'Ali Shah's Iran was more tranquil and prosperous than it had been at any time since Safavid rule had ceased to be effective.’

Azarbaijan continued to be, politically at least, the most important province of Iran. It was the chief recruiting ground for the Qajar armies, if not also the chief supplier of agricultural produce, and Tabriz, with around 200,000 inhabitants, was the largest and most important city of the country and usually the seat of the heir apparent, as well as the main emporium of the rapidly expanding trade with Russia and the West. Russia was naturally the paramount foreign influence in the political and economic affairs of the province, though the British often managed to exert some pressure through their consular officials in Tabriz.

The Russian conquest of eastern Transcaucasia

Fath ʿAli Shah Qajar was occupied until 1803 in dealing with internal opposition, but he maintained his uncle's policy of regarding Georgia and the other Caucasian districts as part of Iran, while fearful of Russian aims there. Tsar Paul annexed Georgia in 1801; when he was assassinated soon after, his successor Alexander I reverted to Catherine's policy of expansion in the Caucasus. In the next two years, unsuccessful attempts were made to negotiate the submission of the khanates of Erevan, Ganjeh and Nakhchevan, all of which had substantial Christian populations.

The Russian advent in the Iranian vassal territories of eastern Transcaucasia met with a mixed reception. Atkin gives an authoritative account of the mutual misunderstandings and prejudices that characterized relations between Russians and both the Iranian authorities and the local rulers and their subjects, in the years leading to the outbreak of war. She points out at length how the khans had ‘for generations … profited from the weaknesses of neighboring empires by asserting their own autonomy. They continued to pursue their traditional objective, then including Russia and Iran in their maneuverings.’

In some parts, for example the cities of Baku, Shaki, Qobbeh and Darband, the troops were apparently welcomed by the populace, who took the opportunity to throw off the oppressive yoke of the khans.

The beginning of the eighteenth century found Iran in a condition of steadily worsening administrative and military decay under the weak and misguided Shah Soltan Hosein. The death throes of the Safavid dynasty began with the Afghan invasions in the south and east, culminating in 1722 in the siege and capture of Esfahan by Mahmud Ghilji, while the west and northwest soon fell carrion to the voracious Ottomans and Russians, both newly freed from military commitments elsewhere to expand in the direction of Iran.

The frontiers of Iran in Shah Soltan Hosein's time were almost as they had been left by Shah ʿAbbas I: they included much of Georgia and Daghestan in the northwest, while Khorasan and large areas of presentday Afghanistan and Pakistan lay within Iran's eastern frontier. Some territory in the west had been lost to the Turks in the 1630s, but since the Treaty of Zohab in 1639 the frontier province of Azarbaijan had been so secure from invasion that it had for much of the time been counted as an internal province and ruled directly from the capital.

The following is a selection of stories I recorded during fieldwork among the Shahsevan. Habib Sabri, from the Moghan village of Ultan where I stayed for a few weeks in summer 1963, was an old man who, like most of his tribe Pir-Evatlu, had given up pastoral nomadism and settled many years earlier, but had vivid memories of his youth as a nomad warrior, forty to fifty years earlier. 'Emran Imani, elder of the Hajji-Imanlu section of Geyikli tribe, was my host for many months in 1966, then in his late forties: I have written about him (as ‘Akbar’) and his family in my Pasture and Politics, where I noted that he was a good story-teller. When I reestablished contact with his family in 1992, I learned that he had died in 1989 (his grandson Mehdi Mizban has also written an MA thesis (1992) about the family). Hasan Panahi, from another section of Geyikli, was the same age as 'Emran and a close friend. Both 'Emran and Hasan were regular companions of Hatam Bey, the most distinguished of the former Shahsevan chiefs, who was then in his seventies, and died a few years later. I recorded the stories from 'Emran, Hasan and Hatam Bey during the winter of 1966 in Moghan.

'Emran Imani of Geyikli on Nurollah Bey Qoja-Beyli

In the time of Naser ad-Din Shah, the Shah summons Nurollah Bey Qoja-Beyli to Tehran to account for his misdeeds.

The value of tribal lists as documents is qualified by their nature and inherent interest as social constructions (see Chapter Fourteen), which leads, among other variations, to considerable differences in length. For example, among official lists I collected in the 1960s, one given by a senior official responsible for the Ministry of Agriculture's relations with the Shahsevan amounted to forty-eight tribes; another, by the Moghan Office of Tribes, numbers forty; while the Meshkin gendarmerie's 1963 list numbered twenty-one. Only a few discrepancies in length and content were due to differences of jurisdiction.

In the sources, tribes are sometimes ordered according to size and importance, sometimes according to territorial propinquity or common origins. There is no obviously preferable order, so in the list, and the accompanying table (Figure 12), I have listed the tribes alphabetically (as did the recent Census, though according to the Persian alphabet), within four categories:

1. The tribes of Meshkin

2. The tribes of Ardabil

3. Tribes that have settled/disappeared since about 1900

4. Tribes that have emerged since about 1900.

With transliteration of tribal names, I have attempted a compromise between the usually Persianized literary versions and a phonetic version of how they are pronounced by Shahsevan themselves.

The ‘noble’ tribes: nineteenth-century traditions

Three versions of the traditions of the Shahsevan tribes of Ardabil were published in the late nineteenth century. The first was written by Col. I. A. Ogranovich in 1870, soon after his appointment as Russian frontier commissar for the Shahsevan at Belasovar. The second, published by the German naturalist Gustav Radde, who travelled in Talesh and among the Shahsevan on the slopes of Savalan in 1880, derives from a manuscript sent to him by Ogranovich in 1884. The third was published in 1890 by VI. Markov, Russian political agent, whose main source appears to be a report compiled in 1879 by E. Krebel, Russian consul-general in Tabriz at the time. Passages in Markov's account are identical with passages in Radde's, so we may assume that the manuscript which the latter was sent by Ogranovich was a copy of Krebel's report. All of the authors had firsthand acquaintance with the Shahsevan tribespeople, but to judge from their accounts none of them were familiar with any Persian sources, and their knowledge of Iranian history was rudimentary.

At this time the tribes were extremely turbulent, being notorious for their raiding activities across the Russian frontier, but they were still nominally within the control of two hereditary paramount chiefs, the elbeys.

Russia's Caucasian frontier with Iran was in many ways as crucial an arena of the nineteenth-century Great Game as British India's frontier with Afghanistan. Both were of considerable strategic importance, and were crossed by major Asian trade routes. The main differences were in the nature of the terrain and the population. While the mountain ranges of the North-West Frontier of India were of marginal agricultural value, rugged, remote and defensible, Transcaucasia included some of the most fertile agricultural lands of the area and for this reason, as well as its comparative accessibility, could not provide so remote and defensible a refuge where tribal populations could flaunt their political autonomy in the face of the competing states and empires.

The two Russo–Iranian wars of the early nineteenth century raged across Shahsevan territory and resulted in the conquest of the best part of their winter quarters in Moghan by Russia. Chapter Eight narrates the main events leading to this turning point in Shahsevan history, laying stress on the role which the tribes and chiefs of Moghan are known to have played during the campaigns, and on the movements of tribes southwards at the end.

On ethnicity and identity

In the opening chapter I showed how anthropologists have failed to agree on a substantive definition of ‘tribe’, arguing that as an analytical concept it is best used – and best matches indigenous concepts – for a ‘state of mind’, a mode of social organization essentially opposed to that of a centralized state. Some of the problems anthropologists have had with the concept of ‘tribe’ are echoed in debates over concepts of ‘ethnicity’ and ‘identity’. I do not intend to review those debates here, but only to make clear my own perspective, which is the same as that employed in the discussion of ‘tribe’.

One dominant approach to ‘ethnic groups’ in history and anthropology has conceived them to be, or to approximate, bio-genetically self-perpetuating populations, whose members share elements of a common culture, identify themselves and are identified by others as a separate category. This ‘primordialist’ approach, fundamentally positivist and objectivist, is a refinement of an older anthropological tradition in which ‘cultures’ were treated as co-terminous with ‘tribes’, ‘societies’, ‘peoples’. Even if adherents of this approach do not all take the genetic assumptions too literally, they still present populations as divided into formally bounded, clear-cut, ethnic groups, with every person belonging to one: a conception that facilitates tidy maps, neat lists of the traits associated with each group, a rigorous classification of types, and cross-cultural comparison.

The flaws in such a conception have become increasingly clear, not least its disregard for the identity claims of the populations concerned and for other cleavages such as those of class that might divide those populations.

The eastern Transcaucasus has always offered a highly favourable environment for both pastoral and agricultural activities. High mountains, with abundant summer pasturages, command the vast and fertile Shirvan, Qara-Bagh and Moghan plains of the lower Aras and Kor rivers, which provide correspondingly extensive winter grazing. The plains, a favourite wintering place of conquerors, also invite the construction of large-scale irrigation works, such as the canal restored by Timur in Moghan, which seems to have continued in operation throughout Safavid times. Shirvan was second only to Gilan to the south as producer of raw silk. The area is a natural crossroads, and trade and travel between Russia and Iran and between Anatolia and Central Asia passed through or close by. From Safavid times, travellers and merchants from Europe commonly journeyed overland through Russia and took ship on the Caspian at Astrakhan to land at Shirvan and halt awhile at the growing trading centre of Shamakhi, before crossing the Kor at Javat and passing via Moghan and Ardabil into central Iran, and beyond to India.

It is not surprising that the whole area was long the object of intense struggle between powerful rulers. The Safavids gained control at the beginning of the sixteenth century, but had difficulty keeping it from the Ottomans, the Russians and various Caucasian powers, and when the dynasty crumbled in the early eighteenth century, the area was divided briefly between the Ottomans and the Russians. It was the latter who eventually, after a further eighty years of Iranian hegemony, annexed most of the area for good.

Do courts aid or inhibit productive business activities? The perspectives on law and courts considered in chapter 1 lead us to conflicting expectations. On the one hand, some writers stress inequality and view courts as unlikely to undermine prevailing inegalitarian political and economic relationships. Such a perspective would lead us to view courts as structures furthering economic domination in the developing world. Wealthy individuals and powerful economic institutions are viewed as able to obtain far more favorable decisions from the courts than other litigants both because of the content of the law and the nature of legal procedures.

Other writers discussed in chapter 1 take a liberal view of law which leads them to stress the corrupted nature of the current legal environment in much of the developing world. Legal structures are seen as stifling entrepreneurship and privileging state over private property rights. Powerful individuals and groups benefit from prevailing structures, but this is not seen as advancing the general goal of encouraging economic development and productive initiatives.

Are courts and the law too subservient to business or too hostile? The experience of Egypt (and secondarily of the Arab states of the Gulf) suggests that both pictures are too starkly drawn. While courts are hardly oases where prevailing power relations are irrelevant, the evidence presented in this chapter, especially when viewed in conjunction with the findings presented in the previous chapter, indicate that courts are surprisingly accessible to wide sections of the population. Indeed, from the perspective of business actors, the courts are probably too responsive to non-elites.

The Egyptian experience indicates that the sort of legal and judicial systems erected by the Gulf states should have been able to accommodate themselves to the autocratic political systems generally prevailing in the area. The judicial vision of legality in Egypt has only rarely been inconsistent with the desires of the country's rulers. This has made possible a fair degree of judicial independence as well as official observance of legality in the bulk of governmental affairs. On matters deemed too critical to leave to a strict legal framework, rulers have generally escaped constitutional and legal restrictions less by attacking than by avoiding the judicial structure. At certain periods when political pluralism, if not full-fledged democracy, has operated, the judiciary has worked for a more ambitious conception of liberal legality and enforced some significant constraints on executive action.

The experience of the Gulf does not contradict the lessons of the Egyptian experience, but it does suggest some refinements. In an effort to understand the political role played by Gulf legal and judicial systems, special attention will be given to Kuwait and Qatar. Kuwait, with its history of an assertive (and sometimes adversarial) parliament, viable associational life, and constitutional development, probably provides the most fertile ground in the Gulf for the emergence of liberal legality. Qatar, with a far less politicized society, organized only informally by family, and with constitutionally unrestricted executive authority, would seem to provide the least fertile ground. Thus, the comparative study of Kuwait and Qatar will reveal the extent of the pliability of the legal and judicial systems in the area and the likelihood of their serving as a base for the emergence of liberal legality.

At the beginning of this study, three questions were posed concerning the social and political role of courts in the Arab world. It is now possible to advance answers to each of the questions.

First, why did Egypt's political leaders construct and maintain an independent judicial system that might seem to limit their own authority? Those accounts of legal and judicial reform in Egypt (or more generally) that stress imperialism, liberalism, or legitimation are not so much incorrect as incomplete. Imperialism did shape the course of Egyptian legal development during the late nineteenth and early twentieth centuries, if often indirectly. The timing and structure of legal reform in Egypt, however, reveal that the primary impetus was domestic. Even when imperialism played a role, legal development was often a tool that served to resist or contain imperialism rather than enforce it. Similarly, liberalism has played a role in Egyptian legal history, and the Egyptian judiciary has at times emerged as a force for liberal legality. Liberal legality in Egypt, however, has never been predicated on the idea of a minimalist state, and has generally operated within sharply denned limits. Finally, while the legal system has served to support existing political authority, the legitimating function of law has been greatly exaggerated. It is true that at times the political leadership has adopted an ideology based on the rule of law, but there is little empirical evidence that the actual institutions associated with the rule of law have generated popular support for, or acquiescence in, the political order. Such ideologies are probably better understood not as hegemonic but as aiding only in fostering coherence and unity of political vision among the political leadership.

In 1969, Egypt's political leaders made the decision to bring the judiciary under executive domination. More than any specific rulings made by the courts, the move seemed to stem from the corporate independence of the judges coupled with the ideological clash between the liberal legality of the judiciary and the aspirations of the regime for socialist transformation. Yet the commitment of the regime to socialist ideology was never unqualified, and it began to diminish rapidly in the 1970s. Indeed, official ideology gradually placed greater emphasis on the rule of law, democracy, and the independence of the judiciary. From 1971 on, the several measures taken during the massacre of the judiciary were either undone or transformed beyond recognition. By the mid-1980s, Egypt's judges had gained more ground than they had lost in 1969 in their efforts to assert their independence and corporate interests. While the impact of the measures taken in 1969 were potentially farreaching, the actual institutional changes were fairly modest; they were therefore not difficult to reverse. Yet the reemergence of liberal legality on an institutional level was still a very gradual process and it remains incomplete.

In this chapter, the historical record of the reassertion of liberal legality will be followed by an analysis of the limitations of the current institutional structure of Egypt's judiciary from a liberal standpoint. The chapter will conclude with a consideration of the nature of liberal legality in Egypt on an ideological level, its meaning, and the reasons for its reemergence.