The Iranian Legal System, its Sources and its Institutions: A Brief Overview

Prior to the 1979 Revolution, the Iranian legal system was a mixed jurisdiction: its private law merged ideas from the 1804 French Civil Code with Islamic law, while its criminal law largely abandoned Shariᶜa in favor of institutional and procedural designs of civil law jurisdictions. Those areas of the law which were regarded as un-Islamic, such as criminal and family law, were fundamentally revised after the 1979 Revolution to bring them in line with the tenets of Shariᶜa. Nevertheless, the legal system of the Islamic Republic continues to bear the hallmarks of its original organization and contains elements from Islamic and civil law traditions, with some of its sources dating back to the pre-revolutionary era.Footnote ⁷ Crucially, as Article 4 of the constitution stipulates, Iranian law is based on “Islamic criteria,” with Shariᶜa as its primary source.Footnote ⁸

The Iranian legal system comprises a hierarchy of courts that operate under the constitution and allow for the possibility of appeal. However, it also has “special” courts, such as the Special Court of the Clergy,Footnote ⁹ and the Revolutionary Courts,Footnote ¹⁰ which are presided over by religious judges and operate outside the jurisdiction of public courts. The independence of the judiciary is guaranteed in Article 156 of the constitution, and the importance of ensuring the impartiality and independence of judicial tribunal is stressed in the 2015 Criminal Code of Procedure. Notwithstanding these constitutional provisions, “it has been widely reported that judges are handpicked and influenced by the executive branch of the state.”Footnote ¹¹ The head of the judiciary, as well as the chief of the Supreme Court and the prosecutor general, are appointed to five-year terms directly by the Supreme Leader, who is the highest political authority and in practice not accountable under the law or to any institution.Footnote ¹² The head of the judiciary appoints the heads of the provincial courts, who in turn appoint lower-ranking judges.Footnote ¹³ Thus, all low-ranking judges owe their allegiance to the heads of the provincial judiciary, who in turn owe their positions to the head of the judiciary, who owes his position to the Supreme Leader.

The binding sources of Iranian law consist of legislation passed by the parliament (Majlis) and approved by the Guardian Council,Footnote ¹⁴ “commands and views of the Jurist-Leader” and Shariᶜa law as promulgated through the fatwas of prominent jurists and judicial decisions of the plenary session of the Supreme Court.Footnote ¹⁵ Customs and usages (ᶜurf) also play a role, albeit a limited one. According to Article 167 of the constitution, courts are to adjudicate cases on the basis of the codified law, unless such law is absent, in which case the judge may decide cases on the basis of authoritative Islamic sources. Thus, the Iranian legal system is a hybrid of Shariᶜa on the one hand, and civil law institutions and procedures on the other. At times, when confronting hard cases, the judge has to maneuver between codified law and the rules of fiqh (Islamic jurisprudence), which are fluid, informal and concerned with delivering substantive justice.Footnote ¹⁶ As we shall see below, the IBA attorneys described the complex relationship between the formal character of codified law and the informality of fiqh as a source of uncertainty and as one of the causes of tension between them and the judiciary.Footnote ¹⁷

Although the constitution incorporates a basis for due process, the principle of the rule of law (hākemiyyat-e qānun) is “largely absent from Iranian constitutional doctrine.”Footnote ¹⁸ Instead, the rule of Shariᶜa and the principle of velāyat-e faqih Footnote ¹⁹ play decisive roles in shaping the boundaries of law and legality. It is worth noting that although the rule of law might be largely absent from the constitution of the Islamic Republic, it has not been in short supply in Iranian public political discourse since the second part of the eighteenth century. In more recent times, Seyyed Mohammad Khatami, who won the 1997 presidential elections, and Hassan Rouhani, who won two consecutive presidential elections in 2013 and 2017, represent the political expressions of the reformist social movements that seek a government under the rule of law.

The Legal Profession and the Market for Legal Services

The history of the Iranian Bar Association (IBA) can be traced back to the period after the 1906 Constitutional Revolution, when a modern legal system was established in Iran. The IBA was founded in 1915 and organized under the supervision of the judicial system until 1953, when it was granted legal personality. It operated as an independent civil society organization for the next twenty-seven years, until it was closed in 1980 by the revolutionary government and its rank and file were purged. It was reopened in 1991 under the control of the head of the judiciary and regained some of its independence in 1997 when Khatami, who advocated the rule of law, won the general election. Since then, the numbers of lawyers have grown steadily to an estimated 60,000,Footnote ²⁰ and perhaps most significantly a large number of women have passed the Bar and joined the legal profession:Footnote ²¹ “It is true,” one attorney explained, “that the number of lawyers might be small, considering the size of the population, but we must also remember that not many people use lawyers.” Another attorney added that there were enough cases to keep all the lawyers busy, but:

Iranians, we were told, did not have a high opinion of lawyers and would not ask for their help, “even when their business [was] in trouble,” instead asking for “the advice of their friends and acquaintances.” Most Iranians turned to lawyers for advice, attorneys repeated, when it was too late.

The attorneys also agreed that recent increases in the quantity of lawyers had not gone hand in hand with an improvement in the quality of lawyering or legal services; in fact, we heard time and again that lawyering had deteriorated in every respect and its practitioners were no longer respected. While most Iranian lawyers worked with professional integrity, some acted as “chic brokers” or as classy agents whose primary task was to negotiate and “fix” deals, even at the expense of undermining the law. Some of our respondents—both attorneys and ordinary people to whom we talked—used the adverb dallāli to describe the way some lawyers had strayed away from their codes of professional conduct. The noun dallāl means “broker,” “go-between” or “agent,” but the way it was used in the interviews indicated that a lawyer working as a dallāl would do and say anything to fix a deal.

Since the 1979 Revolution, the IBA has been struggling to maintain its independence from the judiciary.Footnote ²³ As part of this conflict, a new body of lawyers was created by the Iranian government in 2001 and “authorized to present cases in court” under Article 187 of the Law of Third Economic, Social and Cultural Development Plan (adopted in May 2000).Footnote ²⁴ One of the senior attorneys described how the 187 legal advisors were introduced:

This group, whose membership in 2014 was estimated to exceed 20,000, is officially known as the Legal Advisors of the Judiciary. The Centre for Legal Advisors and Experts of the Judiciary trains and examines its own members and issues and renews their licenses to practice. Several of our interviewees maintained that legal advisors’ training and examinations were not as rigorous as those of the IBA, and those who could not pass the Bar were instead recruited to the legal advisors ranks. To qualify as a legal advisor, one was required to pass one qualifying examination and complete a six-month pupilage, whereas to be qualified as an IBA attorney one had to pass several examinations and complete an eighteen-month traineeship under the supervision of a lawyer with more than ten years’ experience. A few senior attorneys insisted that the IBA’s criticism of the 187 advisors concerned their lack of legal and political autonomy:

Nevertheless, the fact remains that 187 legal advisors compete with IBA attorneys in what is a lean market for legal services.

One of the distinguishing characteristics of Iranian lawyers is their lack of specialization. As a female attorney explained, although “there are a few who work only with certain cases, the pressure of earning a living doesn’t let younger lawyers specialize.” In practice, Iranian lawyers tend to take most cases which come their way, though one exception to this rule is a small group of commercial lawyers, educated at postgraduate level outside Iran, who take only international private law cases, but their number is too small to make an impression on the overall structure of the legal profession. This absence of specialization among lawyers was caused by the underdeveloped state of legal services, which did not generate sufficient legal work in different areas of the law to ensure a steady demand for specialized legal counsel and representation. This point is reflected in several of the younger lawyers’ descriptions of the legal market as “unstable.”

The Juridical Field and its Agents

Our empirical material identifies four main groups of agents, or social actors, who interact to reproduce the juridical field: (1) the judiciary, which includes the hierarchy of judges and the prosecutor’s office, (2) the court clerks and other administrative staff, (3) the legal profession, which consists of IBA attorneys and 187 legal advisors, and (4) clients of the legal system, i.e. laypeople, public and private organizations and various interest groups, which either turn to law to adjudicate their disputes or are brought before it for breaching the law.Footnote ²⁷ These actors use the resources available to them—ranging from legal rules and the institutional arrangements of the legal system, to social norms and personal contacts inside and outside of the legal system, not to mention pecuniary assets in the case of clients—to compete with each other over available business and try to transform it to their own advantage.

Each of the four groups is characterized by its specific properties and the position it occupies in the juridical field, a position which exists irrespective of the individual actors holding it. In the context of the Iranian legal system, to preside as a judge means having the right to exercise a great deal of power in the field and enjoy social and political status. According to the 1982 Law on the Qualifications for the Appointment of Judges,Footnote ²⁸ only a male candidate who has faith and is deemed just and in possession of “a practical commitment to Islamic principles and loyalty to the system of the Islamic Republic” may be considered as a judge or a prosecutor.Footnote ²⁹ The Supreme Selection Council and the Ministry of Intelligence vet the personal history, political affiliation, religious beliefs and activities of candidates for judgeship through the gozinesh process.Footnote ³⁰ To ensure judges’ adherence to the ideologically correct interpretation of Islamic jurisprudence, the judiciary has since 1982 been running a special religious/judicial school for training judges. The IBA attorneys in our interviews regarded judges as a politically homogeneous group and argued that besides being religious and loyal to the Islamic Republic, many came from the “lower classes” and had a chip on their shoulder, whereas they themselves were a politically diverse group. We have no data to verify these claims about the judges’ social class background; the sociologically significant point, however, remains that many attorneys shared this view of judges, which arguably reveals more about their identity than about the judges’ traditional background. Nevertheless, considering how judges are carefully selected through gozinesh, the special training they receive and their shared daily work experiences are sufficient in creating a stable basis for a group habitus,Footnote ³¹ which could largely influence how they collectively perceive the social world around them and react to it accordingly.

Being an attorney amounts to having influence in the field of law, albeit without enjoying much political power: “Lawyers generally belong to a section of society which does not give in to pressure,” claimed one attorney, “and since they see themselves as belonging to the select few, they say what they believe in.” This stance, however, is not from a position of strength. The attorneys’ sense of insecurity in the field was revealed in their nostalgic recollections of the pre-revolutionary period. Several, who were either born after or were children at the time of the revolution, talked wistfully about the times when lawyers were highly respected and allowed to operate with independence. A female attorney, whose father practiced law at this time, claimed that lawyers were held in considerably higher regard then; today, she had to “put up with all sorts of hostile attitudes and insulting comments made by secretaries, court clerks and judges.” The belief in belonging to “the select few,” with a duty to uphold the law and defend the public interest, is part of our attorneys’ self-description, but it is also a feature of their middle-class identity, which was forged partly prior to the 1979 Revolution.

The habitus of our attorneys, as well as their disposition, normative map and contextualized and practical knowledge of the field of law, is different from that of judges. As one attorney explained, “when discussing judges with colleagues, we wonder where they studied law—obviously not in the same schools as we did.” Some of these differences between judges and attorneys exist in all jurisdictions. Judges are expected to act as guardians of the law and legality, resolve disputes and punish criminal offenders, rather than represent clients’ interests and win cases. Such general role differences aside, the variations we find are partly specific to the political setting of the Iranian legal system, where judges are by definition religious, loyal to the clerical rule and guided by an Islamic ideology and partly specific to the Islamic legal tradition where fiqh, or Islamic jurisprudence, can play a decisive role in deciding cases.

The court clerks and administrators generally possess a great deal of institutional influence in the day-to-day management of cases, the public’s access to the courts and, subsequently, the way in which justice is delivered. IBA attorneys see the court administration as an arm of the judiciary, with which they do not see eye to eye. Whereas judges employ the normative resources of the law to exert legal power, administrative staff access organizational resources to exercise managerial power, for example by facilitating or delaying the processing of cases. More crucially for some attorneys, administrative staff’s attitudes and general demeanor largely determine the working climate of the courthouse:

We heard similar accounts from other lawyers, in that most judges, clerks and security personnel working within the courts are usually ill-disposed towards IBA attorneys, and many Iranian judges appear bad-tempered while presiding in court. Unconsciously as it might be, judges and clerks use their institutional positions to undermine lawyers’ sense of well-being and self-perception:

The judiciary, the court administration and the two categories of lawyers—which incidentally compete with each other in the market for legal services—constitute the permanent players in the field and represent its main subgroups. Besides having a degree of internal autonomy and organization, they have their own training and socialization as well as collective interests and identities. They struggle against each other over the right to determine the law, while members of each subfield also compete internally for the specific stakes of each subfield, such as legal work, recognition and prestige. Clients, on the other hand, have no collective identity and are occasional players endowed with different degrees of legal or political influence. To promote their case, they must bring resources from other areas of life, such as economic, political and cultural capital, into the law. The significance of clients should not, however, be underestimated, because without their participation and their “objective complicity”—i.e. without them sharing judges’ and lawyers’ belief in the value of the law—the juridical field would lose its raison d’être and cease to exist. Judges, lawyers and clients have different interests, pursue different ends, and thus do not necessarily value the law in the same way and for the same reasons. Since the public does not believe in the underlying value of the law,Footnote ³² clients turn to the legal system not because they value legality, but because the law can empower them to get what they want. By contrast lawyers have an interest in legality, which ensures their professional autonomy, whereas judges have a manifest interest in upholding an Islamic order. Nevertheless, they all share a belief in the power of the law.

This last point needs further elaboration. All social fields possess what Bourdieu terms illusio, i.e. a “tacit recognition of the value of the stakes of the game and … practical mastery of its rules.”Footnote ³³ Notwithstanding the contest between the dominant and the dominated, there is an objective complicity which underlies all antagonisms in any social field. “Players agree by the mere fact of playing, and not by way of ‘contract,’ that the game is worth playing, that it is ‘worth the candle,’ and this collusion is the very basis of their competition.”Footnote ³⁴ Thus, those competing in any field of practice disagree on many things and seek different ends, but to participate meaningfully in the field, they must agree on the innate value of what is at stake. Within the juridical field the players must agree on the value of legal authority, which enables them to make decisions in accordance with the valid law. What constitutes the valid law at any given time, however, is a matter of dispute and subject to negotiation. Whoever succeeds ultimately in determining the applicable law to a case, and the way that law is construed, has the power in the field, albeit momentarily, as that case is decided.

Illusio is the emotional and corporal investment that the agents have made in the game of law. It influences the set of values and ideas about the law that they share and shapes the components of their habitus which guide their actions. Focusing on the illusio of the juridical field helps us to understand how different competing groups, such as attorneys, 187 legal advisors and judges, inadvertently as it might be, produce a dominant legal discourse on the inherent value of the law as public goods. This dominant discourse also serves as the internal logic of the juridical field, i.e. rules which all players must abide by. Many of our attorneys, who were critical of the way legal institutions were administered, nevertheless believed in the idea of the law as a source of justice and social order. None of them, whether implicitly or explicitly, questioned the basic rule of the field, which is, as mentioned above, enshrined in Article 4 of the constitution, in that all laws and regulations are to be based on “Islamic criteria.” Instead, we heard recurrently that the problem was not the law itself, but how it was interpreted and enforced. Even when, as in the case of family law, they admitted that the law was defective, they nevertheless attached an intrinsic value to it, which vindicated their continued participation in the legal system’s shady games and justified their dealings with a clientele that neither believed in the law nor respected lawyers. To exemplify this point, a senior female attorney remarked that she regularly considered quitting her practice, because working under the special conditions of the Iranian legal system took its toll on her:

As we shall see, attorneys’ objective complicity introduces a contradiction into the heart of their practice. On the one hand, they describe the legal system as a bastion of corruption and disorder, which gradually but steadily grinds them down, while, on the other hand, they claim that “you can still get the right judgement in many cases, if you persist.”

Acquiring a “Feel for the Game” in the Juridical Field

Notwithstanding the field illusio, our attorneys appeared as a group of pragmatic professionals who entertained very few illusions about what they could reasonably achieve within the legal system: “In the beginning, when I still didn’t know better,” one attorney confessed with a touch of resignation, “I believed that I could use the law to serve justice and to protect those whose rights are violated. I was so naïve.” Another explained that soon after he began practicing law, he became aware of the discrepancy between his actual experiences of the law and legal processes and his clients’ normative expectations. Some female clients came to him with all sorts of plans and expected him to take their husbands to court:

We hear a very similar account from a female attorney:

Women who seek the advice of lawyers in such cases know that Iranian law allows women to divorce their husbands under certain circumstances, for example, if he is violent, criminalized or infertile, or if he fails to provide for her (nafagheh). Consequently, those who turn to lawyers often do so with their own plans and ideas on how to proceed legally. The attorneys' “feel for the game,” however, tells them that plans devised by some women as a basis for requesting divorce normally fail to convince family courts.Footnote ³⁵

A female attorney stressed that she never represented men who filed to divorce their wives, although she had occasionally represented women, whereas another female attorney maintained that she refused to take any family cases, because the laws in this area were “inconsistent, unequal and work against women.” Yet another explained that she had even refused to take divorce cases where both parties had agreed to a settlement. Family disputes entailed psychological tension and exposed you to negative social attitudes and gender prejudices prevalent in Iranian society. A male attorney explained that to begin with, he took family cases, but after a few years, when he had established his practice, he felt that he could no longer be part of the family court scene: “They make legally routine cases but emotionally drag you into the bitter personal quarrels of other people and transfer their anxiety to you.” In divorce cases where the parties clashed head-on over custody matters or the payment of mahriyyeh,Footnote ³⁶ both male and female attorneys were subjected in equal measure to the same type of unpleasantness and even slander. This unpleasantness was partly a reaction to the unequal and discriminatory laws which defined the encounters between parties to family disputes and, in that sense, was misdirected at lawyers who were not responsible for how the law was formed. To many lawyers, it also indicated that Iranians had not yet “developed a culture in which lawyers [were] seen as impartial professionals” who sought the best result for their clients.

One of the 187 legal advisors also remarked that she “stayed away from family law”. She had done part of her training in a family court and, unlike the IBA attorneys, had no objection to family law itself, but she kept her distance from divorce cases, because they involved aggression, fighting, threats and confrontations with angry spouses:

Descriptions outlining similar tendencies to act reveal our interviewees’ personal “feel for the game,” or the “practical sense” they have acquired from competing in the field. This is a tacit knowledge of legal practice which is gained not from the written rules of the “game” but from participating in legal processes. In this way, the interviews allow us to identify what attorneys consider collectively as the objective relations of legal practice, what they regard as valuable in the field and worth struggling for, what is the likely outcome of different processes and what are reasonable and obvious actions to take. Alternatively, they suggest which actions should be avoided in different situations. They can also be regarded as bits of a jigsaw puzzle: on their own, they express individual tendencies of respondents, while those pieces that fall into place together describe the make-up of legal work. However, a lawyer’s “feel for the game” can in some instances prevent them from pushing the boundaries of the law. By identifying Iranian law’s discriminatory treatment of women as one of the “objective” dimensions of the juridical field,Footnote ³⁷ and family disputes as psychologically stressful, these lawyers deny their clients the opportunity to challenge the law. Their justification is that, legally, most family cases are a foregone conclusion in favor of the husband and there is no legal space for making a case.Footnote ³⁸

The law, as Robert Cover argued, is a normative universe which helps us to “create and maintain a world of right and wrong, of lawful and unlawful, of valid and void.”Footnote ³⁹ This universe contains within it the law’s violence—physical and interpretive coercion which is exercised legitimately to uphold a form of order—but also a promise of justice and visions of unrealized possibilities. Once this promise of justice is stripped away from law, as is the case in Iranian family law, then all that remains of the law is its violence; in this case a gendered violence directed at women. Hence, the chaos and fury described by attorneys.

Let us provide another example, this time from the perspective of how attorneys talk about criminal law processes. Many of them said that they liked taking criminal cases, although they expressed their frustration with institutions within the criminal justice system. Some also noted that attending police stations, dādsarā (the prosecutor’s office) and criminal trials posed additional challenges to female lawyers. A young attorney stated that he liked defending criminal cases but took private law disputes, which, besides being more lucrative, were easier to manage and did not require him to deal with dādsarā. Similarly, a female lawyer maintained that she found criminal cases mentally stressful and physically demanding, because:

Another female lawyer, specializing in banking and contracts, stated that she did not take criminal cases because the authorities conducting the pre-trial investigation viewed defense lawyers negatively and, despite the recent amendments to criminal procedures, continued to disregard the accused’s right to legal representation: “That is why I have been trying to take private law cases, especially property disputes and contract.”Footnote ⁴⁰ Another attorney stressed that he preferred taking criminal cases even though they posed difficulties that had little to do with the law. Very similar accounts of criminal law ran through our interviews, suggesting that notwithstanding all the difficulties that criminal law poses, it is regarded by many attorneys as one of the stakes in the field and worthy of the struggle. Put differently, demonstrating one’s ability to manage and perform well within the criminal justice system is as important to the professional standing of an Iranian lawyer, as obtaining private law cases is to their economy.

In Defense of the Public Interest

The importance that attorneys attached to criminal cases should be examined in the context of their professional commitments to providing public services,Footnote ⁴¹ which includes defending the public interest within a criminal justice system that imposes draconian punishments on citizens. By taking criminal cases, some lawyers serve clients and the public interest, while at the same time they enhance their professional persona and energize the innate value of the field of lawyering. In spite of the growing number of Iranian lawyers who choose to serve business clients and arguably engage in dallāli, the image of the lawyer as an independent defender of public interest retains its hold over the imagination of many lawyers.Footnote ⁴² It attracts new entrants to the field of law, but also forms an important part of the illusio of the legal profession ensuring that those who have invested in the “game” of lawyering remain confident in its lasting value. There is no tradition of public interest litigation in Iran similar to that which we find in some western jurisdictions, and yet the idea of publicly campaigning against human rights violations and defending political cases in Revolutionary Courts is hardly alien to Iranian lawyers. For example, in the wake of the anti-government demonstrations in various Iranian cities in December 2017, 155 lawyers protested in an open letter to the head of the judiciary against the restrictions that the authorities had imposed on detainees’ access to legal counsel.Footnote ⁴³

The Revolutionary Courts are the least accommodating arena for defense lawyers and the price of getting involved in cases brought before them, especially when the opponents of the regime are put on trial, “can be far too high to bear.” According to one attorney who is familiar with Revolutionary Courts, “in the course of trials, judges used threatening language” against the defense, “openly refused to apply the law and seldom took any notice of the defense lawyers’ repeated objections to the court’s breaches of the law.” Nevertheless, the same attorney went on to add, she and her colleagues persisted against all odds and carried on with their work because:

Political interference and attempts to intimidate defense lawyers are not limited to political cases and can occur in criminal law processes where attorneys are seen to be engaged in “cause lawyering,” i.e. influencing legal processes to change the law.Footnote ⁴⁴ One attorney mentioned the case of a teenage boy who had been sentenced to death on a charge of murder in the city of X, even though the evidence suggested that he was most probably innocent:

Cause lawyering and defending the public interest, which occupy a section of the legal profession, constitutes part of the illusio of the “game” of lawyering, which these attorneys play under intimidating conditions and at their own personal risk.Footnote ⁴⁵ Their pursuit of illusio is not necessarily motivated by altruistic values and, as Bourdieu explains, could be part of their search for recognition, or the need for obtaining symbolic capital. Citing Pascal, Bourdieu maintains that the greatest baseness of man is the pursuit of glory. But that is the greatest mark of his excellence; for whatever possessions he may have on earth, whatever health and essential comfort, he is not satisfied if he has not the esteem of men.”Footnote ⁴⁶

Professionalism and Lawyers’ Autonomy

The attorneys found it difficult to establish and maintain a professional relationship with their clients. This difficulty was caused by several factors including the clients’ negative attitudes toward the legal profession and their mistrust of the law and legal institutions. Thus, Iranians tried to “evade” the law, were unwilling to use legal services and doubted female lawyers’ professional ability.Footnote ⁴⁷ A senior lawyer, who stated that “Iranians [were] not law abiding,” asked rhetorically, “How do you think the public would view the law when they see that the government officials don’t follow it?” Hence, “the general belief [was] that smart (zerang) people don’t follow the law,” and people who do not trust the law and legal institutions will not willingly retain the services of lawyers. Another attorney added that even when some Iranians retained a lawyer’s services, it was “because they believ[ed] that lawyers know how to sidestep the law.” These clients also look for a lawyer who is “connected”:

This attorney went on to argue that the attitude of clients to the law and legal system, combined with lawyers who played along and reproduced the corrupt system, undermined the professional standing of lawyers and deprived them of trust, which is one of their most valuable assets.

Attorneys also talked at length about the overall lack of professionalism among their colleagues, which illustrates the internal competition within the subfield of the legal profession, and the judiciary’s hostile attitude towards attorneys, which provides us with a basis on which to understand the power struggle over law generally. All of our attorneys voiced their concerns, albeit in different terms and contexts, about the extent of corruption within the judicial system and referred to it as one of the obstacles they had to negotiate daily. This showed the importance and the complexity of struggles over the economic resources of the juridical field while at the same time reflecting an ongoing public debate on high levels of corruption in various state agencies, including the legal system. In a recent speech, the head of the Iranian judiciary acknowledged the scale of the problem by admitting publicly that some judges “become corrupt after serving a few years on the bench.”Footnote ⁴⁸

IBA interviewees referred to the hostile approaches of judges and the difficulties they faced within a court system that did not favor independent legal counsel. This is our IBA lawyers’ side of the story. To evaluate it, we needed to interview Iranian judges to find out about their experience of running the courts and working with the IBA attorneys. The handful of interviews we conducted judges (at the time of the interviews, two of them were retired from the bench and were working as attorneys) confirm the existence of a different subfield with its own logic, habitus and forms of symbolic capital, i.e. goods that are at stake, the conception of the law and legality as well as a different experience of court organization. For example, the number of cases judges must decide every month has increased sharply over the last decades, thereby affecting their ability to familiarize themselves with the details of cases before hearings and thus prompting criticism that they do not know the cases they decide. Judges share a common belief with the attorneys in the value of the juridical field as well as the Islamic character of the law, but whereas their conception of Islam is ideological and formed by their loyalty to the Islamic Republic, the attorneys’ understanding of the role of Islam is “doxic”.

Doxa

Doxa is another of Bourdieu’s central concepts, which, through symbolic violence,Footnote ⁴⁹ links habitus with misrecognition. Doxa refers to assumptions, common beliefs, attitudes and viewpoints that are taken for granted, thus guiding actions and practices of agents in an unreflective fashion: “The adherence expressed in the doxic relation to the social world,” writes Bourdieu, “is the absolute form of recognition of legitimacy through misrecognition of arbitrariness, since it is unaware of the very question of legitimacy.”Footnote ⁵⁰ Furthermore, doxa ensures that the arbitrary exercise of power is misrecognized by agents as the norm, or the natural order of things, even when it is to their disadvantage.

The IBA attorneys, both male and female, talked at length about the unequal and at times discriminatory treatment of female lawyers.Footnote ⁵¹ Some judges could order female lawyers to leave the court for not observing the Islamic dress code (hijab), and security guards could deny them entry into the courthouse, arguing that their hijab was inadequate:

The female lawyers who objected to the discriminatory conduct of the court officials also argued that women were partly responsible, because some of them did not abide by the dress code of the courthouse and some even “dressed provocatively.” In other words, they challenged the officials’ authority for imposing unreasonable restrictions on, and behaving disrespectfully towards, women, but paradoxically accepted the legitimacy of the values that underpinned the arbitrary nature of the restrictions placed on women. The values they recognize as legitimate are doxic, but they are embedded in mainstream Iranian culture.Footnote ⁵² Put differently, they are not of the juridical field and should not be confused with the ideologically tuned Islamic values that the officials impose on female attorneys. Another related observation supporting the assumption that the Islamic fiber of the field is doxic relates not so much to what the attorneys said, but rather to what none of them mentioned, namely the status of religious minorities in Iranian law, or how minorities are treated in courts. Although many of them discussed the rights of women at length, none of them referred to non-Muslim Iranians, whose rights and treatment in law have been criticized by human rights organizations.

Judge or QādiFootnote ⁵³?

The attorneys’ “feel for the game,” which allows them to employ their tacit knowledge of how the field operates in practice to the benefit of their clients, was regularly challenged by what they described as judges’ arbitrary decision-making:

The last sentence in the above quotation implies that judges have sources beyond the law to draw upon—sources that are not available to the legal counsel. It can equally refer to procedural informality and personalism in administration of qādi-justice.Footnote ⁵⁴ Here is another attorney complaining along the same lines and protesting about judges’ arbitrariness:

The attorneys and one of the judges we interviewed confirmed that the majority of Iranian judges were hostile to lawyers who appeared in their courts to defend cases, and both the judiciary and the court administration treated lawyers disrespectfully. As soon as attorneys begin to practice law, they discover that the bar and the judicial system, which they might have imagined to be the integral parts of the machinery of justice, are pitted against each other most of the time. In addition, they discover that “on the whole, judges are unfair,” “difficult to deal with” and “treat you disrespectfully, as if you were their inferior.” Furthermore, “the judge is not an independent arbiter of disputes who ensures the rule of law by bringing checks and balances into how opposing lawyers construct a case. Instead, he is your rival.” The attorneys admitted that this negative view varied from court to court, and although some judges would trust attorneys whom they knew to be reliable, others would “call in your client, close the door behind them and tell them in confidence that they should get rid of you.” Several attorneys repeated that the judge had either told their client that they did not need a lawyer to defend their case or advised them to dismiss their legal representative, to get a favorable judgment.

The judges’ animosity has many different foundations. First, the attorneys argued that judges saw and construed the law in view of their understanding of fiqh, which for the counsel did not generate legal certainty in regard to the outcome of cases. Their adherence to fiqh also meant that they treated procedural requirements of decision-making as “presentational” (tashrifāti) and thus dismissed them as “superficial” legal concerns. Judges leaned more toward making substantive decisions about what they believed to be right, which prevented them from giving sufficient weight to formal aspects of the law.

Fiqh, as it has been developed by Shiᶜa jurists, does not lend itself to simple definitions. Whereas the application of ijtihād enables Islamic jurists to employ their independent reasoning, to establish the secondary rulings of Shariᶜa in accordance with the Quran and Sunnah, fiqh reasoning brings their interpretations in line with what they consider to be the requirements of time and place. Some contemporary scholars describe fiqh as a normative system incorporating “religious ethical commands and precepts with rare legal sanctions that are a product of jurists’ argumentation and interpretation of the primary sources of Shariᶜa.”Footnote ⁵⁵ Although they point out that fiqh is not the same as the law, they nevertheless describe it in terms which suggest an already existing corpus of principles that may be applied to evaluate human deeds. While fiqh can be employed progressively to bring the interpretation of Shariᶜa up to date, for example by promoting women’s rights in the context of codified family law, or to avoid draconian sentencing in criminal cases, it can—and often in criminal cases does—work negatively, thereby allowing judges to sidestep the codified law and violate its due process. This introduces, to borrow from Zahra Tizro, “perpetual tensions between different sources of the law, which destabilise the juridical system and introduce a huge amount of uncertainty into the situation.”Footnote ⁵⁶

Article 167 of the constitution establishes that it is incumbent upon judges to decide cases on the basis of codified law, unless confronted with cases in which there are no applicable codified rules. In situations where the law is silent, deficient or appears contradictory, “He [the judge] has to deliver his judgment on the basis of authoritative Islamic sources and authentic fatwa.” By referring to “authoritative Islamic sources and authentic fatwas,” Article 167 authorizes judges to use fiqh as well as the fatwās of Islamic jurists in their reasoning. This principle is then brought to bear on Article 220 of the 2013 Criminal Code, where it is stated that regarding “the hadd punishments that are not mentioned in this law, Article one hundred and sixty-seven (167) of the Islamic Republic of Iran’s Constitution shall be applicable.” Article 170 of the constitution stipulates further that fiqh can override codified law:

To comply with Article 170, the judge must have knowledge of fiqh, which was why Article 163 of the constitution states categorically that “the qualifications and conditions of judges shall be laid down in law in accordance with the criteria of fiqh.” Therefore, grasping how fiqh operates as a normative force through the law and across the legal and political systems of the Islamic Republic becomes indispensable to our understanding of the habitus of judges (but not the lawyers’) and the stakes in the juridical field.

The second cause of the animosity between judges and attorneys concerns the formers’ view of lawyers, a negative opinion which is at least in part embedded in the traditional role of qādi Footnote ⁵⁷ (qāzi as it is called in Persian) in Shariᶜa courts:

Lawyers, attorneys or advocates who plead on behalf of a plaintiff or a defendant are not part of the traditional setting of Shariᶜa courts or the Islamic process of dispensing justice. Traditional religious judges, who enjoyed immense discretionary powers, interpreted and applied the law as well as interrogated and cross-examined witnesses, and it is therefore not surprising that fuqahā, or experts in fiqh, did not consider lawyering as an acceptable means of making a living:

Although Iranian judges are not traditional qādis, a female attorney explained, many of them seem to refuse to see attorneys as agents:

The suspicion of lawyers, according to another attorney, could be traced back to the period immediately after the 1979 Revolution, when the judiciary was purged and courts were re-opened with judges, many of whom were trained in religious seminaries:

The procedural informality adopted by judges and their tendency to seek substantive justice by resorting to fiqh, are the hallmarks of qādi justice. Nevertheless, we argue that it would be misleading to treat them as Weberian qādis who abide by “no rational ‘rules of decision’” and make irrational and substantive decisions based on their personal emotions, convictions and feeling.Footnote ⁵⁸ Unlike traditional qādis, the majority of judges who preside over public courts at present have been educated at modern law schools, and not religious seminaries, and work within a formally institutionalized bureaucratic court system with separate laws of procedure for each area of law (such as criminal, family, civil, commercial etc.),Footnote ⁵⁹ which they are expected to follow. What confounds their judgments is their shared ideological agenda: they are loyal to the Islamic Republic and are trained to uphold a particular form of Islamic order, where necessary, by referring to normative principles which lie beyond the sphere of codified law.Footnote ⁶⁰ The contradiction we find in a judicial order which, on the one hand, uses a rationalized hierarchy of courts and codified law and, on the other hand, allows a politicized judiciary to exercise a degree of informality when deciding cases, reveals the unresolved legal and political problems of the Islamic Republic.Footnote ⁶¹

It would be a mistake to present Iranian law as a field solely constituted by normative factors such as fiqh and ideals such as commitment to the “Islamic criteria.” Our attorneys did not make any secret of the importance of the economic dimension of their practice—making money was a major force, structuring the strategies adopted by lawyers and judges alike. Not surprisingly, the third cause of judges’ hostility concerned the economic dimensions of the juridical sector, i.e. the market for legal services, where individual lawyers compete against each other and where IBA attorneys as a group struggle against the 187 legal advisors and vice versa. Judges receive a fixed salary and are technically excluded from this competition for business, a fact which, according to attorneys and one of the judges we spoke to, is a source of friction between them and the legal profession, thinking that attorneys are parasitizing on the legal system, reaping the rewards of judges’ hard work. Attorneys admitted that they often had to “lubricate the wheels of justice,” especially in cases where large sums of money changed hands. Thus, the economy of legal practice is one of the factors spawning corruption within the juridical field. Most attorneys insisted that they never bribed officials and even acknowledged that there were some incorruptible judges around. Nevertheless, they were collectively alarmed by the extent of corruption within the legal system and disconcerted by how it was used to tarnish the public image of the profession.

The Distorted Images of Lawyers

The IBA attorneys were concerned about the negative press they received from soap operas produced by Sedā va Simā, the state-run radio and television network. A female attorney, for instance, told us that she became interested in advocacy when, as a teenager, she watched an American movie about a female lawyer who defended the case of a group of elderly women. The image of the lawyer in that movie inspired her to study law. By contrast, she added, the images of lawyers in Iranian media are designed to deter people away from the legal profession:

Admittedly, there were fraudulent lawyers among the ranks of the IBA, confided another attorney, but they were a very small group compared to the overwhelming majority, who diligently served their clients and the law. He also pointed out that among judges there were also those who violated their code of conduct, although “you would never find a TV series in which the judge breaks the law.” The attorneys also objected to the way soap operas mispresented their income and lifestyle: “People watching these soap operas would think that an attorney was a person without principles, who charged astronomical fees and lived a life of luxury,” while the reality is that many of them, especially new entrants, struggle to make ends meet. The IBA complained about the misrepresentation of lawyers in soap operas, in response to which the state-run television outlet produced the ideologically approved figure of the lawyer:

To explore how the public perceives the legal profession, and also to examine the impact of soap operas on their attitudes, we conducted 26 semi-structured interviews with Iranians from different backgrounds. We asked our interviewees if they had experienced using lawyers’ services, if they knew what lawyers’ daily work consisted of, what were their general views of lawyers and the legal services, if they watched soap operas, and, finally, if they did, how were lawyers depicted in these programs? Although the limited number of interviews did not allow for making generalizations, they nevertheless revealed a much more complex and diverse picture of how the public perceives and describes the legal profession, on the one hand, and the role of lawyers in soap operas, on the other. First, not all Iranians watch soap operas, and of those who do, not everyone forms a negative view of lawyers or even agrees that they are discredited. To exemplify this point, a thirty-five-year-old man with a university education said:

Admittedly, there is a group that watches soap operas and also holds a negative view of lawyers, but even in their case, it is unclear if they formed their distaste from watching TV series or from other sources. Here is an excerpt from an interview with a twenty-five-year-old woman:

However, there are those, such as a forty-nine-year-old male professional, who do not watch soap operas but dislike lawyers nonetheless, because, according to him, “their job is dallāli and they are in league with the judge.” Another interviewee, a forty-seven-year-old housewife, told us that soap operas often present lawyers in a positive light, but she did not like them anyway, because they had let her down:

It is true that television and movies shape popular culture and influence how some people learn about the law, the legal system and lawyers. Thus, Iranian attorneys have cause to object to the uniformly negative portrayal of the legal profession on the state-run TV channel. However, the interviews also demonstrated an overall negative perception of the legal system and contained many critical references to judges and courts as well as derogatory references to lawyers. Studies of public perceptions of lawyers show that “of all the factors that affect attitudes toward lawyers, nothing has as strong an impact as an individual’s amount of interaction with the profession.”Footnote ⁶³ Moreover, the public is hardly a passive participant in this context and leads as well as follows “negative[ly] filmed images.”Footnote ⁶⁴ What is perhaps more interesting from the vantage point of Iranian legal culture is the total absence of positive images of lawyers in Iranian movies.

Concluding Remarks

We could regard this young female attorney’s words as yet another expression of “field illusio,” i.e. a belief among players in the field that not only is the “game” worth playing, but its stakes are so valuable that they are worth dying for. Alternatively, we might treat her words as a rhetorical self-presentation, or even as an “interview effect”—i.e. the interviewee is responding to what she believes the interviewer would like to hear. Either way, the fact remains that at least fifty lawyers were prosecuted and sentenced to lengthy imprisonment between 2009 and 2016 for representing prisoners of conscience and political detainees.Footnote ⁶⁵ Put differently, the field illusio, subjective as it is at the individual level, gains facticity at the level of the field and forms the disposition of those who commit themselves to the “game.” Moreover, it manifests itself through a commonly shared belief in the intrinsic value of the rule of law, the value of wining criminal law cases or negatively by avoiding family disputes. The field illusio constitutes an essential part of the life of law, a life engendered by the day-to-day practices of the lawyers and judges, clerks and clients, a life existing beyond the doctrinal concerns of the Islamic jurists, but it is also a life of contested legality. The juridical field in the Islamic Republic is strong on illusio, which is partly due to the politicized nature of Iranian law, but weak on doxa, i.e. the shared sense of normalcy which guides the competing agents to accept the order of things. Judges and the IBA attorneys might share the same illusio, but besides a taken-for-granted general assumption regarding the Islamic makeup of the Iranian law, they appear to share very few certainties about the normal state of the juridical field.

Hence, forty-one years after the Islamic Revolution, the legal system remains a battleground on which the fundamental values and objectives of the law continue to be contested. The judiciary blames the conflict on those attorneys who are “troublemakers” and interfere with the process of justice.Footnote ⁶⁶ Moreover, it sees the legal profession’s calls for upholding the due process of law as an obsession with the standards of western legal tradition. By contrast, the attorneys we interviewed accused the judiciary of hostility towards the counsel, disregard for due process and allowing their personal values to guide their judgments. The descriptions of both the judiciary and the IBA attorneys are tainted by their separate group interests and their different dispositions as agents of the juridical field. Put simply, they have an “internal” view of the legal system, which compels them to describe their conflict in terms of the law and as a struggle over the control of legal processes, institutions and resources. Once viewed from beyond the domain of law, where the juridical field reveals itself as an integral part of the larger field of power, the same conflict appears as a contest over society’s normative foundations, which determine the direction of Iranian modernity. It becomes a clash between, on the one hand, those groups which seek a government—whether Islamic or secular—that is accountable under the rule of law, and those who wish to maintain the rule of velāyat-e faqih. These contentions positively vitalize the discourse on law and legality, but they also destabilize the juridical field. Moreover, they bring not only social change, but also uncertainty and arbitrariness into the operations of the legal system. The intensity of the struggle between attorneys and judges suggests that the normative structures of the juridical field remain in flux. Despite the politically dominant position that the judiciary occupies, judges’ open hostility to attorneys, and their intolerance of the very notion of counsel, hints at their jurisprudential and political insecurity, and it seems as if they have been forced into taking a defensive posture, fighting to maintain the status quo within the legal system. Viewed in this light, the IBA attorneys appear as the agents of social change. Their efforts are hampered, however, by the fact that they are deprived of political capital, which, in the context of the Iranian legal system, generates legal authority.

There is a strong structural coupling between the fields of law, religion and politics in the Islamic Republic, which is ideologically arranged to facilitate the transfer of symbolic capital between the fields. High-ranking members of the judiciary are members of two or at times all three fields; besides being influential jurists, they are also members of the political and clerical elites. By contrast, most IBA attorneys are members of neither the religious nor the political fields, which they publicize outwardly through their demeanor and dress code, both of which defy the official norms of the judiciary and the clerical elite. Being deprived of the symbolic capital generated within the sphere of politics, they oppose the politicization of the juridical field and instead argue for the autonomy of the legal system from political power. Without challenging the Islamic nature of Iranian law, they seek a new form of juridical power based on a different set of symbolic capital independent of politics and religion.

This is not to suggest that all Iranian attorneys are committed to the rule of law, social justice and human rights. In fact, this study has shown that an increasing number of attorneys who have joined the profession more recently have done so for the sole purpose of making money and have no qualms about turning the domain into dallāli at the service of business. Only a small number of lawyers publicly advocate human rights, and those who represent the political opponents of the clerical regime do so at their peril. The noun dallāl was used repeatedly by lawyers and non-lawyers to express a perceived deterioration of moral standards within the legal profession. These concerns about lawyers turning into business agents and brokers reflect the shifting social and economic relations in the country. Here too, the legal profession plays a vital role, and our attorneys, the “bad apples” who are allegedly dragging the profession into the gutters of dallāli, are agents of social change in their own right. For one thing, they are changing the traditional face of the legal profession.

However, the feminization of the legal profession has to be the most important recent development within the juridical field. A legal system that does not recognize women’s equal rights is now confronted with a growing number of female practitioners. It is far too early to assess the impact of their entry into the realm of law, especially since many of them stop practicing after four or five years, but it is certain that their active participation in the struggles of the judicial field will fundamentally challenge the constitution of Iranian law and legal culture. It is not the outcome of the contest between religiosity and secularity, or the rule of Islamic jurists and the rule of law, which will seal the fate of Iranian law and the future of modernity in the country. It is instead the struggles of women within the legal system which, combined with other socio-political developments, will set the course for the next stage of the battles in this regard. In the meantime, the life of law in the Islamic Republic will be one of struggle: the struggle of women for equal treatment, lawyers for the rule of law, the IBA for independence, clients for justice and the judiciary for maintaining the status quo.