ARZOO OSANLOO

University of Washington

Islamico-civil “rights talk”:

Women, subjectivity, and law in Iranian family court

A B S T R A C T rom her apartment in northwest Tehran, Goli had to take three dif-

F
Soon after the 1979 Iranian revolution, women’s
appeals for equal protection of their rights were
deemed by supporters of the new government to be
remnants of European–U.S. imperialism. Over two
decades later, Iranian women are at the vanguard of
reform, calling for their civil rights once again. Now,
with republican ideals authenticated by Islam
through Iran’s innovative state, an Islamic republic,
women push for tangible procedural process in
reformulated Islamico-civil family courts that
position them as individual rights-bearing citizens.
[rights talk, women, Islam, divorce, subjectivity,
law]
ferent taxis to get to the family court in the center of town. Along the
busy downtown streets, people dashed in and out of government
buildings while merchants hawked their wares. Outside the court,
venders displayed pocket versions of Iran’s civil codes, and petition
writers sat behind rows of manual typewriters, waiting for clients. As Goli ap-
proached, she instinctively checked her head scarf and tucked erratic hairs
beneath. She had carefully avoided heavy makeup and removed the polish
from her nails. Passing under the sign that designated the entry for “sisters,”
she pushed back a heavy drape and handed her purse to attendants, who
checked for weapons and lipstick in equal measure. With a nod and a smile,
an attendant passed Goli’s handbag back and prayed God’s blessing on her.
Goli returned the gesture, took her bag, and breezed through the checkpoint
into the dome-topped foyer of the courthouse. Glancing at her summons,
she noted the room where her divorce case was being heard and proceeded
up the winding staircase.
At her previous court visit two months earlier, the judge told Goli that
her husband had not responded to her petition and that she would have to
wait a little longer before he would enter a judgment. Today, Goli was asking
the judge to grant her divorce in light of her husband’s failure to provide
maintenance (nafagheh).1
Goli was a 32-year-old woman I met in Tehran’s Municipal Family Court
during fieldwork I conducted in Iran (February 1999–February 2000, with
follow-up visits in 2002, 2003, 2004, and 2005). My access to the court was
facilitated by a journalist who conveyed my project to a judge. Neither my
request nor my presence in the courtroom was unusual, as law students
and journalists frequently seek permission to observe proceedings. I sat in
on proceedings of approximately 140 cases in this court.2 The proceedings
began at about 8:00 a.m. and ran until midday prayers, around noon. In
the courtroom, I sat beside the judge and transcribed proceedings several
times a week. I also attended hearings in other courtrooms and visited other
kinds of courts, such as custody courts. Usually, two or three hearings took

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American Ethnologist  Volume 33 Number 2 May 2006
place in the early morning, followed by a break around 10:30
a.m., with another round of hearings in the late-morning ses-
sion. When not attending hearings, I interviewed litigants in
the hallways or spoke with officials. During the proceedings, I
sometimes spoke to the litigants. During breaks, I conversed
with the judge and his assistant, sometimes asking for clar-
ification of laws or procedural matters. The judge, aware of
my legal background, sometimes asked questions about how
similar legal issues were addressed in U.S. courts.
Goli told me why she was filing for divorce just three
years after marriage. When her mother died, Goli decided
to start a family. She married Ali, who everyone thought was
a worthy suitor, despite his age (50) and his residence (Los
Angeles). Although Goli was willing to move to Los Ange-
les, for the entire three years of their marriage, Ali remained
abroad almost exclusively. When she saw no end in sight to
this situation, she opted for divorce.
Goli prepared and filed the divorce papers herself, as she
could not afford a lawyer. She laid out her reasoning in both
written petitions and oral testimony and drew from the fam-
ily law code. Goli was optimistic that the judge would grant
her petition.3 Earlier he said that, although she had waited
the required six months and had presented a plausible claim
of nonmaintenance under Iran’s civil codes, he would revisit
her case in two months.4 Goli knew she had another claim
as well. Her husband’s absence of over six months triggered
a second claim, of absenteeism, a basis for divorce stipu-
lated in her marriage contract.5 Goli explained that, since
her mother’s death and her husband’s abandonment of her,
she had turned her attention more toward her individual
survival. As she reached the courtroom, Goli said of her pe-
tition, “This is my right; no one will give you your rights, you
have to go after them.”
Goli’s legal pursuit of her aims is indicative of a new his-
torical moment that has relegitimated certain rights-based
discourses in Iran. Just after the 1979 revolution, Iran’s new
leaders declared that such discourses, particularly as they
referred to women’s rights, depended on an individualism
that did not respect the natural differences between men
and women and that, in the context of the family, was not
in conformity with Islam (Motahhari 1981). Goli’s reliance
on the country’s civil codes and the legal mechanisms avail-
able to dissolve marriage, instead of Islamic laws (shari’a)
that undeniably underlie the legal infrastructure, points to
a renewed emphasis on positive civil law, even in familial
disputes, which the early leaders of the Islamic Republic of
Iran had rejected. Others have noted that women’s-rights
advocates are at the forefront of increased public discus-
sions about rights (Najmabadi 1998); the question I am con-
cerned with here is what has happened to allow women
to express their demands in rights-based claims when, just
after the revolution, this “rights talk” was rejected on the
grounds of cultural or religious incompatibility. Today, many
scholars have noted that talking in terms of rights has be-
192
come the primary way for people around the world to make
claims, both domestically and internationally, for redress of
grievances and entitlements (Chanock 2000; Glendon 1991;
Henkin 1990; Ignatieff 2000).6 The issue here is not rights
talk, generally, but the individualistic claims to rights, once
attributed to the Euro-American tradition, now on view in
postrevolutionary Iran.
Thus, my aim is not simply to provide a description
of courtroom process; instead, I am interested in how civil
process creates the conditions through which women’s dis-
courses of rights emerge. In what follows, I show how a com-
ing together of discursive practices of both Islamic law and
civil law requires petitioners, such as women in Iran’s family
court, to engage in rights talk to make their claims, when
only two decades ago many leaders of the Islamic Republic
considered such rights discourses to be antithetical to the
goals of the new state.
In so doing, I seek to bring into dialogue two seemingly
distinct but closely related areas of scholarship; that is, analy-
ses of the postrevolutionary Iranian state (Abrahamian 1993;
Arjomand 1988; Zubaida 1989) and scholarly work on Ira-
nian women’s rights (Afshar 1998; Mir-Hosseini 1993, 1999;
Najmabadi 1991, 1998; Paidar 1995; Tohidi 1991, 1994). The
former include extensive writings about the hybrid nature of
the state and its formation as a republic alongside its confor-
mity with Shi’i Islam.7 The latter concentrate on the status
of women since the revolution.8 As I explore the productive
relationship between women’s status and the hybrid state, I
also situate rights talk as a politically and historically laden
discursive practice. That is, understanding how women talk
about their rights and how their subjectivities are being rene-
gotiated depends also on understanding the complex histor-
ical processes of Iranian state formation.
Courting rights, part one
The problems with her husband started when Goli filed a
petition to execute her mahr (bride’s portion).9 Although
the mahr is rarely paid, it is an amount legally contracted
during the courtship, often negotiated by the families of the
betrothed. The mahr can be executed once marriage is con-
summated. Goli’s mahr was not too high an amount for her
U.S.-based husband to pay, she told me, and the money
would give her a lump sum that she could use to support
herself while her husband was away. The execution of the
mahr is—ostensibly—independent of any petition for di-
vorce. That is, in recent years, as courts have increasingly
begun to enforce petitions for mahr, filing such petitions has
become a preemptive strike by women who want to leave un-
happy marriages but have no clear legal avenue.10 When it
appears their husbands will not agree to divorce, women in
these cases often petition to have their husbands pay their
mahr. The petition, in effect, brings husbands to the bargain-
ing table—and to the courtroom. Often a wife will discharge

her claim for mahr in exchange for her husband agreeing to
divorce.
Goli, however, would not release her claim to the mahr,
a binding contractual obligation as she saw it. Goli said that
she had two lawful bases for divorce. She did not need to
barter away her rights. “I will get my rights,” she told me.
When her name was called, Goli walked into the court-
room. The judge greeted her as he sorted through Goli’s
filings. He motioned for her to approach and spoke softly,
never lifting his eyes from her file. Goli followed the dicta-
tion of her legal history, nodding and glancing at the secre-
tary who copied the judge’s statements longhand. Then the
judge looked at her and said, “Our society and our religion
look very badly upon divorce. It is only in extreme circum-
stances that a woman can seek to end a marriage, and only
if the proper circumstances exist. And this is my job, to de-
termine whether this situation warrants it.”11 Goli, who had
earlier decided that this was not a disagreeable judge, began
her statement.
Yes, Hajj Agha, I know. Last time, you told me to wait a
bit longer, and if nothing happened, you would issue the
order. To this day, I have not heard from my husband. In
these last months, I have not even heard from his family.
But now I am suffering. I am trapped in this prison of
false marriage. He only wanted me so that he could come
to Iran every few months or years and have someone. I
know that he does not want to live with me. Hajj Agha,
I do not want anything from him that is outside of the
law and I am not asking you to extend me any favor. I
am only asking for my right . . . what the law provides.12
She reached into her bag. “See,” she continued, and pulled
out her book of civil codes to a page with a folded edge, “it’s all
right here. He does not provide me with anything—housing,
financial support, nothing. He came to see me two times in
the last three years and we stayed at his sister’s house. What
kind of life is this? I am still—”
The judge interrupted her as she was about to tell him
that she was still living in her family’s house. “Yes, I know.
You stated all this in your affidavit. And you have not heard
from him since the last time you were here?”
“No.”
“And no one is here from his side today?”
“No. They told me that I could not do anything until he
returned.”
“That’s not so. The law allows it after six months. How
long since you last saw him?”
“I haven’t seen him in almost nine months.”
“Did you contact him?”
“I tried to call, but he never answered. . . . I left mes-
sages.”
“Yes, well you can file another petition. Did you file a
petition for absenteeism?”
Islamico-civil “rights talk”  American Ethnologist
“No, I will if you think I need to; I read the [marriage and
family] civil code. Up to now, I have done everything myself.”
“Yes, yes. I know. You are very persistent, but I have to
follow the law. It’s not up to me; it’s God’s will. Do you have
anything else for me today?”
“Yes, I have a letter from my sister and one from my
neighbor, who was with me last time. You said I should get
them to write letters.”
“Fine, fine.” Looking them over, he added, “Good, they
are notarized.”
And, then, just before he began to dictate the order
granting Goli’s petition for divorce based on lack of main-
tenance, the judge said, “He will probably never pay your
mahr. But you can place a hold on his passport so if he comes
back, he will not be able to exit the country without dealing
with it.”
My concern with the procedural administration of di-
vorce is not arbitrary; the court’s civil process positions
women petitioners as particular kinds of subjects. Goli’s ac-
tions in the court reveal the extent to which the court and
its processes inflect her subject position. Her complaints,
although imbued with emotion, also result from a well-
thought-out legal strategy based on Iran’s marriage and fam-
ily codes. Goli had prepared her documents and statement
in accordance with the court’s procedures. Her narrative ad-
dressed specific points of law. Even while embracing Islamic
mores of public comportment, Goli performed as an au-
tonomous subject endowed with rights. She submitted evi-
dence and laid out a claim that was grounded in the law. As
Goli sought the authorized remedies available to her in this
Islamic civil system, she offered legal as well as personal jus-
tifications for seeking divorce. For his part, the judge embod-
ied the arbitrating clerical judge while simultaneously acting
as the prosecutorial judge of the civil legal tradition, investi-
gating the case by posing questions and eliciting responses.
In the end, the judge was satisfied with Goli’s testimony and
evidence and issued the order.
Goli’s story illustrates the importance women increas-
ingly give to legality, both the process and the documenta-
tion of it, and represents a shift away from common per-
ceptions of the administration, or lack thereof, of shari’a.13
Goli used the court to leave an ambiguous marriage when
her husband refused to comply with its terms. In doing so,
Goli’s subjectivity in court was inflected through both legally
entitled and Islamic registers.14
Throughout this article, I suggest that legal spaces are
imbued with multiple ideologies and that they contextually
frame the multifaceted subjectivities their agents possess.
Subjectivities are not singular or total but are contingent,
dynamic, and shifting.15 Scholars have shown that legal sys-
tems founded on the modern nation-state create and neces-
sitate individuated subjectivities (Fitzpatrick 1992). I argue
that Iran’s family court simultaneously sanctions Goli’s sub-
jectivities as autonomous rights bearer and Muslim woman.
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American Ethnologist  Volume 33 Number 2 May 2006
The court is a specific arena that permits and produces
this particular hybrid subject position. Subjectivities, thus,
have productive relationships with ideological spaces and
are overdetermined by state formation and subtle shifts in
the institutions and practices of law.
Outside the court, the same subjectivity may not be
sanctioned. For instance, Parri, a 29-year-old woman from
southern Tehran, where poor and working classes live, con-
veyed her frustration when “everyone” in her family pushed
her to divorce a husband who took a second wife. “After I did,
my aunt told me not to come to her home anymore because
she has teenage sons.”16 Apparently, the aunt was afraid that,
as a divorcée, Parri could entice her cousins.
Although the discourse on Islam sanctioned a space
for women’s rights immediately after the revolution, since
the revolution, those rights have manifested in republi-
can forms, such as civil and political rights, constitutional
rights, and gender equality, and increasingly, the path to
those rights is through Iran’s hybridized Islamico-civil legal
system.17 Thus, I suggest that a shift has occurred, specifi-
cally in the family law context, which recuperates a regula-
tory legal regime based on positive individual rights. This
shift, moreover, renders new multivalenced subjectivities
that permit women to position themselves as entitled cit-
izens and bearers of rights.18 I contextualize this shift by ex-
amining the events that have come to shape Iranian women’s
legal subjectivities today, particularly the rise and entrench-
ment of Iran’s Islamic republic, the first modern Islamic state,
which led to the creation of the hybrid family court and rele-
gitimates a particular kind of discursive practice of rights.
By invoking the ideological history of the courts, I show
that women who enter in the court exhibit a certain kind
of subjectivity, usually associated with liberal modernity,
that might not have been expected and cannot be attributed
solely to prerevolutionary times, given the state’s turn away
from Euro-American liberalism’s individuated expression of
personhood after the revolution.19
Rights talk
“I have been in and out of the court, up and down the stairs so
much that I know more about the law than the lawyers. Who
needs a lawyer?” responded 22-year-old Sahar, when I asked
whether she had consulted a lawyer about her situation. I
met Sahar in the hallways of the court. She leaned against
the wall and crossed her arms beneath her chador. “I’ve been
here since 8 a.m.,” she complained, “and soon I have to pick
up my son.”
“Each time I come here, the judge tells me I need another
filing, another sworn statement, a witness or a different form.
This is how I learned the law. If you do not follow what they
say precisely, then you cannot obtain the result.”
As I got to know Sahar, I learned that, at age 15, she
was courted by a man who had seen her walking home from
194
school. The man, Mohammad, sent his mother to talk with
Sahar’s mother, proving his intentions were honorable. Al-
though Sahar had never seen the man before, when he came
to meet her family as part of the initial courtship (khostegari),
she liked him.
Her family came from southern Tehran. Her father
worked in construction but barely brought home enough
money to support his wife and six children, among whom
Sahar was the eldest. So when a suitor with his own busi-
ness appeared, Sahar saw marriage to him as a possibility
for a better future. Because she was attending school at the
time, Sahar had only one request, to continue her education.
According to Sahar, Mohammad agreed.
At the start, theirs looked to be a good match even
though, at 27, Mohammad was 12 years Sahar’s senior. After
they married, Sahar said, they were happy living in a small
apartment not far from their families. She attended school
and he worked. Soon, however, Mohammad grew tired of
her schooling and said he wanted a child. After months of
bickering, Sahar told me, they came to an agreement: Af-
ter high school, she would have a baby and then continue
her education after the baby was past nursing. “Since he
[Mohammad] was older, I could understand his haste and
I compromised.” As the baby got bigger, Sahar could see
that going back to school was not realistic. When she told
Mohammad she wanted to return, he said, “School is for the
child.” After several years of arguments and fruitless family
interventions, Sahar took a bus to the family court. When
she went through the checkpoint, she told the guards she
wanted to know how to get a divorce, and they directed her
to the legal advising room.
From that point on, Sahar began researching the pos-
sibilities, first, to force her husband to negotiate, and then,
if necessary, to dissolve the marriage. One day, she took me
downstairs to the legal advisors and pointed to the three
seated officials. “They have university degrees, but I learned
the law from need. What women in Iran do not understand,”
Sahar explained, “is that the law is there, [but] we do not
know how to use it. What good is having a right if you do
not go after it? I will keep coming here and filing whatever
papers I need in order to get my rights.”
“What are your rights,” I asked.
“My rights are mine. That which is mine and no one can
take away from me, such as my education or my son.”
At first glance, talking about rights may seem a natu-
ral way to express one’s entitlements in society—use of an
ahistorical term in common parlance. But the way women
in Iran talk about their rights today emerges from a spe-
cific post–World War II historical trajectory in which some
rights, although guaranteed by the state, actually precede the
state, in that they are inherent in all human beings (Arendt
1948).20 Since World War II, rights talk has spread through-
out the world through international accords, starting with
the UN Universal Declaration of Human Rights, and rests on
 Islamico-civil “rights talk”  American Ethnologist

Table 1 appearance in the courts as respondents requires them to

Population size, numbers of divorces, and divorce rates in Iran have little knowledge of or concern for the substantive and
General Crude procedural issues with which their wives must contend to
Pop. 15 and Divorce Divorce obtain a hearing for their grievances and, like Sahar, prove
Year Divorces over/1,000 Pop./1,000 Ratea Rateb
their case.28 As a result, women’s increased petitions before
1996 37,817 37,116 63,273 1.019 0.598
1997 — 38,524 64,100 — — the court in recent years have contributed to their emer-
1998 42,391 40,030 64,887 1.059 0.653 gence as rights-bearing subjects with greater knowledge
1999 51,044 41,555 65,661 1.228 0.777 than laypersons of both the laws and the procedural mech-
2000 53,797 43,042 66,443 1.250 0.810 anisms involved in petitioning for divorce.29 Like Sahar, sev-
2001 60,559 44,472 67,245 1.362 0.901
eral of my other women informants, who were not trained in
2002 67,256 45,853 68,070 1.467 0.988
Note. a General Divorce Rate is expressed by the number of divorces law, related how the divorce process had turned them into
per 1,000 persons of “divorceable” age. b Crude Divorce Rate is ex- legal scholars and practitioners.30 This practical expertise in
pressed by the number of divorces per 1,000 of the total population. rules and regulations stands in stark contrast to depictions
Dashes indicate no data were available for that category. Sources: of the lack of formal regulation that early scholars claimed
Statistical Centre of Iran 2002; UN Department of Economic and
was a primary feature of Islamic law (see N. 13). Another
Social Affairs 2003.
characteristic of the so-called informal system of justice was
the preference for oral testimony of witnesses over written
the notion of individual autonomy and free will in society.21 documentary evidence.31 Clifford Geertz (1983:190–191) has
I am interested in the internalization of this phenomenon observed that the primacy of oral testimony in Islamic legal
in Iran, particularly, in how Iran’s postrevolutionary state process reflects a concern with “witnessing” and is the most
relegitimizes the language of rights and reproduces rights striking characteristic of the Islamic legal system, illustrating
talk.22 the personal quality of the administration of justice.32
Rights talk has been the subject of inquiry among As the institutions of the Islamic Republic of Iran
law and society researchers who have examined various brought techniques of state governance together with the
groups’ engagement with legal mechanisms to address social ideological underpinnings of Islamic jurisprudence, how-
grievances (Engel and Munger 2003; Gilliom 2001; Lazarus- ever, a unique situation arose in the administration of jus-
Black 2001; McCann 1994). Such work has sought to under- tice through law. In response to calls for greater clarity of
stand how people make choices within a seemingly liberal the new legal order, the new government moved toward a
legal framework.23 In a recent study, Sally Engle Merry exam- system of more regularized and structured civil procedures
ines the use of law and legal mechanisms among battered (Mir-Hosseini 1993; Paidar 1995). This was particularly evi-
women in Hawai‘i and finds that “the adoption of a rights dent in the realm of marriage and family law, and thus was
consciousness requires experiences with the legal system” especially notable, as this was one area of law deemed by the
(2003:344).24 Merry’s point is that women’s positive encoun- early leaders of the republic to be wholly within the domain
ters with law give them a heightened sense of their rights.25 of Islamic jurisprudence.
I do not contend with the agentive possibilities of rights talk Once called before the judge, Sahar implored, “I have
but, instead, am interested in the conditions that allow what followed my duties in this marriage and I have a right to my
appear as rights-bearing subjectivities to emerge in a very future. This is what I was promised.” She was referring to the
different legal order. marriage contract, pointing to the stipulation, initialed by
For women in Iran, marriage and family law is a key both Mohammad and herself, that promised her education.
arena of engagement with the legal system; a majority of di- The judge had suggested she bring in a sworn statement from
vorce petitions are filed by women. Iran’s national figures on the witnesses, which she had also done. The problem was
divorce show modest but steady increases in recent years that Mohammad would not respond to the court summons.
(see Table 1).26 The province of Tehran, where one-fifth of She was left alone in the courtroom, waiting for the judge to
the population lives, accounted for almost 20 percent of all make a decision.
divorces, according to census statistics for the year 1381 (Sta- “I see you have not met with the arbitrator.”
tistical Centre of Iran 2002).27 “No, I was there, but Mohammad refused to go.”
One of the primary features animating Iran’s family law “I will not issue an order without first seeing the state-
procedures is Article 1133 of the civil codes: the husband’s ment of the arbitrator.”
unilateral right to divorce. Women, who do not have that “But he will not go; what can I do?”
right, must seek counsel in the family court. If a wife is able “Do you live together?”
to prove her husband’s failure in one or more accepted pro- “No, I moved back to my parents’ home.”
visions of the law or the marriage contract and convince the “Where is your spouse?”
judge that reconciliation is infeasible, the judge may grant “He lives at home, but I do not know where he is at this
her the right to divorce. The same is not true for men, whose moment.”

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American Ethnologist  Volume 33 Number 2 May 2006
“You need to get him to go to the arbitration.”
“But he does not believe he has to. He will not listen to
me.”
“I will send him another summons.”
“What if he does not come?”
“He must. Did you execute your mahr? If you do, then
he will come”
“No, I will.”
“You need to pay the filing fee.”
“Yes. Will you issue the order next time?”
“He must come in before I can make a decision. Now
you may go; I need to move on.”
Outside the courtroom, Sahar explained that she did
not want to execute the mahr because she did not want a
divorce; she wanted Mohammad to respect their agreement.
She said that all the legal filings made her realize how naive
she was when she agreed to marriage: “I was just a child; what
did I know about married life? I don’t know what it’s like in
America, but here, you think that your family is looking after
you or that the marriage contract gives your rights, but here
you must go after your rights. No one will do that for you.”
Sahar’s story, and the others I have related, illustrates
that in postrevolutionary Iran, rights talk is a situated dis-
cursive practice with political and historical implications.33
The revolution
Iran’s family laws and court must be read against the back-
drop of the revolution and the institutions of the Islamic
republican state. The ideological significance of the family
in both of these contexts is important to grasp in attempting
to understand the laws’ and the court’s creation and their
subsequent evolution as hybrid Islamico–civil forms.
Outside Iran, especially in the United States and Europe,
popular images of Iran evoke the 1979 revolution and, per-
haps, the U.S. hostage crisis. In images of the revolution,
women are prominently displayed in chadors, put on show
by revolutionary forces and, in many instances, on their own
initiatives, as revolutionary actors. Their change in attire was
to serve as an indication to the world of the refounding of a
cultural essence that was repudiated by the previous regime.
Women clad in chadors were key signifiers of a return to an
idealized past. Indeed, a prominent cleric at the time, Ay-
atollah Taleghani, called on women to take up the chador
because “we want to show that there has been a revolu-
tion, a profound change” (1982:107). Taleghani’s statement
evidenced the very political nature of the aims of veiling
women.34
In connection with these political goals, the officials pre-
siding over the fragile new regime questioned, recalled, and
reconsidered women’s roles. This reconditioning of the sta-
tus and position of women was part of an agenda by the
Islamico-nationalist coalition aiming to distinguish postrev-
olutionary Iran from the previous regime’s excesses and its
196
perceived sellout to the United States and Europe and was
embodied in women’s appearances and behaviors.35 One of
the goals of revolutionary policies was to remedy Iranian so-
ciety from within, at its core. This core was recognized in the
body of Iranian women.36 Women, as mothers and wives,
and thus the nucleus of the family, had to be rehabilitated in
order to rehabilitate the family, a microcosm of society.
Not all of the women who participated in the revolution
subscribed to this agenda, as evident in Fereshteh’s remark:
“Yes, I marched to support the overthrow of the Shah and
supported Khomeini early on. We all thought our [economic]
situation would improve. I never thought about the social
constraints being imposed.” I came to know Fereshteh in one
of the law offices I frequented. Fereshteh, who was in her late
forties, was a receptionist in an attorney’s office in central
Tehran. Her employer was a renowned family law attorney,
who even had her own television call-in show. Fereshteh her-
self was divorced and had strong opinions about women’s
status in marriage through her own experiences. The first
thing she said to me when I met her was, “The only thing I
want for my daughter is the divorce right,” referring to the
stipulation in the marriage contract that authorized women
to have the right to dissolve marriage.
Fereshteh explained that she came from a working-
class family in Tehran, and her family supported Ayatollah
Khomeini’s calls for wealth redistribution. “We were told that
we would have oil dividends delivered to us, that we would
not pay for gas and electricity. Of course we thought our
lives would improve. Instead all they have done is brought
us this,” she said and tugged on her head scarf.
When Khomeini returned to Iran on February 1, 1979,
only two weeks after the shah’s departure, one of his first ac-
tions was to repeal the 1967 Family Protection Law (FPL),
which had given women some rights in divorce.37 In re-
sponse to Khomeini’s decrees, quite suddenly, on March
8, 1979, International Women’s Day, thousands of women
throughout Iran marched to protest the state’s intrusions in
their civil and personal liberties. For several days, women
took to the streets to rally against the newly imposed restric-
tions. Women carried banners and shouted their demands
for “freedom,” “equal rights,” and the abolition of new laws
discriminating against women (Millett 1982:209, 245, 333).
For this, many were physically and verbally attacked. Angry
counterprotesters called the women “Barbie dolls,” “West-
ern puppets,” and “Westernstruck” (Gharbazdeh), a term de-
noting that they were diseased by the West.
At the time, the provisional government, revolutionary
forces, and private sympathizers denied these women the
legitimacy of a language of rights, calling them the tools
of “Western” imperialist forces seeking to undermine Iran’s
commitment to Islam. Some characterized these events as
trivial and saw the activists as “seizing upon a number of
marginal issues” (Algar 2001:84). Referring to the protests,
Hamid Algar noted that “it was interesting to see television

footage of those demonstrations. Many of the women were
dressed in the latest fashions and had dyed their hair, which
in the context is of significance” (2001:84).
Algar contends that the thousands of protestors were
from the upper echelons of society who had benefited un-
der the shah’s regime, were led in their thinking by a U.S.
feminist, Kate Millet, and did not represent the sentiments
of the majority of the people.38 Some evidence does point in
that direction. Indeed, when I asked Fereshteh about these
protests, she conveyed her own lack of interest.
No, what did it matter to me? I was young, without
money. I was married to a government worker and had
a newborn. I wanted economic improvements. Now
that I am on my own, I understand why those women
protested. Social rights and economic rights cannot be
separated. I learned this when I went through my own
divorce. Back then, it was much harder. Judges did not
look at you as an individual with rights. They did not
care what you had to say. You had to find a way to get
your husband to agree. That was what I did.
Fereshteh’s working-class family may have been one of
those that reaped benefits in a wider class struggle that was
underway at the time.39 Others have noted the dismissal of
many middle-class women from decision-making positions,
and their replacement in the labor force by many lower-
middle-class women (Arjomand 1988).40 But Fereshteh’s
comments also suggest that what was at stake for women
had greater effects and implications for Iranian society than
the bourgeois concerns that Algar intimates. By denying
women the language of rights, discrediting those who used it
as “West-obsessed,” the supporters of the new Iranian state
were acting against what they saw as problematic outside
influences, especially ones that advocated individual auton-
omy. State officials and sympathizers who were stressing the
need for a sex-segregated society often based their beliefs
on the teachings of Ayatollah Murteza Motahhari, an impor-
tant scholar associated with the new government, who was
Khomeini’s close associate and chairman of the Revolution-
ary Council.41
Motahhari rejected a concept of equality that did
not recognize the biological differences between men and
women, differences that he considered fundamental to
the proper functioning of society. In his writings, which
had appeared in women’s journals, Motahhari criticized
Euro-American individual autonomy. Although he found
that Islam, indeed, approved of gender equality, it did not
“agree with identicalness, uniformity and exact similarity”
(Motahhari 1981:135). He also opposed the UN Universal
Declaration of Human Rights as the measure of women’s sta-
tus because it and documents like it were based on the idea of
individualism irrespective of gender difference. Motahhari
believed that Islam gave priority to societies, communities,
and families over individuals. For society to function opti-
Islamico-civil “rights talk”  American Ethnologist
mally, human beings must subordinate individual will to the
greater good, and their roles, best exemplified through the
texts of Islam, should be in harmony with their biological
and psychological essences (Motahhari 1981). Accordingly,
Motahhari found that a woman’s most important duty is
motherhood, so her natural activities occupy her with family.
In 1979, Motahhari’s writings served largely as the ba-
sis for the gendered social divisions that were being touted
by many of the officials in the new regime and their sup-
porters. Motahhari’s critics wrote that women in Iran were
forced back into the home and denied their civil and political
rights (Azari 1983; Nashat 1983; Sanasarian 1982; Tabari and
Yeganeh 1982). These arguments, however, did not seem to
correspond with the highly public roles many women in Iran,
even just after the revolution, still held or with what their
roles in the new regime were shaping up to be (Esfandiari
1994).42
Building on the critiques of postrevolutionary Iran, an-
other surge of scholarship, intent on understanding this
quite visible, quite public persona of many Iranian women,
struggled to comprehend women’s roles as emerging within
a modern reading of Islam. Such scholars suggested that,
given Islam’s wide-ranging effect in societies like Iran,
women’s rights and roles would be unlikely to emerge in-
dependent of it (Afkhami 1995; Esfandiari 1994; Moghadam
1993; Najmabadi 1998).43
So I was somewhat surprised when, 20 years later, many
women could be heard making public appeals for their civil
and political rights and couching their pleas in constitu-
tional entitlements guaranteed by the republican state, not
by Islamic tenets or gendered essences. For instance, Azam
Taleghani, a supporter of the Iranian revolution and a devout
Muslim who heads her own nongovernmental organization
(NGO), the Association of the Islamic Revolution’s Women,
was quoted in a local newspaper as saying, “Throughout his-
tory, women have won certain rights but unfortunately were
never officially entitled to them. . . . The laws of the coun-
try have to be modified to enable women to truly exercise
their legitimate rights” (Iran Daily 1999: 4). She added that as
long as women were not fully aware of the governing laws,
they could not stand up for their rights. Taleghani called
on women to “avail themselves of all the relevant informa-
tion and awareness pertaining to the rights of women and
get more effectively involved in social activities” (Iran Daily
1999: 4).44 An attorney whose office in northern Tehran I
visited regularly told me that “now women are much more
aware of their rights and seek information about their rights
before they marry.” Fereshteh, the office receptionist, con-
veyed a similar sentiment: “Today it is much easier for these
girls [than when I was getting divorced]. They are more aware
of the system and are not afraid to go to court and say ‘this
is my right.’ ”
In fact, as I observed while in Iran, newspapers, mag-
azines, and other media and educational outlets were
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replete with similar messages to women. Likewise, discus-
sions about rights emerge in the streets, in parks, in taxis, on
buses, in people’s homes, and at public meetings.
I saw well-known supporters of the revolution speak-
ing publicly in support of women’s civil and political rights
and declaring women equal to men—with no reference to
their biological differences. They often called on women to
learn about their rights, to participate in government, and to
vote in elections. Appeals like Ms. Taleghani’s provide vivid
examples of how, once again, women are appropriating a dis-
course of rights cut partly from the cloth of liberalism, the
very ideological tenets that the women protestors of 1979
were attacked for mobilizing. What was at stake here was
precisely the ideological location of women’s rights. But now,
this new liberalism, deployed in the hybrid spaces of family
courts, is sanctioned by Islam and appears to be acceptable
to some state officials and agencies.45 The rendering of rights
in Iran’s postrevolutionary Islamic republic is a manifesta-
tion of the confluence of the ideological components that
make up the state—Islam and republicanism.
The state: Islamic (yet a) Republic
Consider how this mix works.
Azadeh was a 22-year-old law student whom I met at
a women’s scriptural reading group (jaleseh-ye Qur’an). Her
father was a driver for a private car company, having retired
from government-sector work, and her mother worked in
a day-care center for children. Her family lived in a com-
fortable apartment in Gheytarieh, a middle-class neighbor-
hood in northwest Tehran. Azadeh said she was going to
law school because “this is the only way a woman can learn
what her rights are and expose the injustices in the system.”
She attended the scriptural reading group in part for spiri-
tual growth but also because “this is a forum for women to
talk about issues that concern them and learn how to ad-
dress them. We do not just read the Qur’an to learn about
our rights, we study the law, too.” Three years earlier, the
morals police (pasdaran) had arrested her for wearing ex-
cessive makeup in public.46
When they took me to the police station, they had
fees associated with every offense and it was all writ-
ten down. This much for mascara, this much for lip-
stick, and so on. I couldn’t believe it. I had no idea that
the laws contain penalties like these. This is not in the
Qur’an. It was from this experience that I learned I need
to educate myself and others about the country’s laws.
If you are not aware of the laws, how can you defend
yourself?
Like two-thirds of Iran’s youthful population, Azadeh
has no memory of the 1979 revolution.47 Her discussion of
rights and the rule of law emerged in the context of her inter-
actions with the penal system. She explained her reactions
198
to the charges against her, emphasizing her attention to the
legal detail.
On the day I went to court, I was prepared. I studied the
charges and penalties, and I rehearsed my statement
several times. I was very serious when I faced the judge
and told him that these charges are not fair since the
people are not aware of the penalties that accompany
them. I said that it is not right to fine someone without
first telling her that she is committing an offense and
what the penalty is. The judge listened to me. I could
tell he was impressed by my argument. In the end, I got
the fine reduced quite a lot.
In her description of going before the magistrate,
Azadeh emphasized both the importance of the performa-
tive aspects of the hearing and her knowledge of the law
and her understandings of justice. By talking about rights in
terms of justice, due process of the law, and her individual
rights, she referenced the crucial and legitimating values of
Iran’s republic, that it should represent the will of the people
and guarantee their fundamental rights.48
Clearly, two important elements characterize Iran’s
state: It is both Islamic and a republic. When I started my
fieldwork, I, like others, hypothesized that the way women
talked about their rights would likely be manifestations of
new interpretations of Islamic texts (Hoodfar 1994; Mir-
Hosseini 1999). As my research progressed, however, it re-
vealed that something else was taking place, something that
privileges neither secular nor Islamic discourses of rights.
Indeed, today one sees the manifestations of a shift that has
been occurring over the last quarter of a century in rights dis-
course at the juncture of Islam and the republican form of
the state. The implications of this shift became much more
prominent after two elections in which an overwhelming
majority of the electorate voted for President Mohammed
Khatami.49 Although Islam was one of the unifying agents of
the revolution, significantly, popular support in overthrow-
ing a dictator was another, and the creation of a represen-
tative republic underlies the importance of this latter fac-
tor. Given that Islam is not new to Iran but that a republican
form of governance is, it becomes increasingly apparent that
Khatami’s landslide victories ushered in a new era of pop-
ulist mobilization in which liberal tropes, such as civil society
and discourses of human rights, are again being deployed by
Iranians. This is not to suggest a defeat or denunciation of
Islam but, rather, to say that as the innovative Islamic yet
republican structure of the state takes shape and inheres in
the Iranian political and social landscape, it authenticates a
seemingly liberal discourse of rights, one that, immediately
after the revolution, the fledgling state had denounced. But
now, a quarter-century later, a shift is evident in the dis-
course of social justice, as Iranians increasingly couch their
claims in a liberal language of rights. That is, certain possibil-
ities arise where Islam meets the republic and allows some

people to talk about rights in ways that, just after the revo-
lution, they could not.50 This shift is evident throughout the
hallways and courtrooms of Tehran’s family court, as women
press to animate the codified laws.
Courting rights, part two
Consider a second case.
“Are you a dokhtar (meaning both virgin and girl)?”
the judge asked the young woman, attempting to ascertain
whether she was a virgin. This case involved a newly wed
couple. The bride, a 24-year-old, self-described housewife,
had filed a petition for divorce on grounds that her husband
was clinically depressed and could not provide for her. Alter-
natively, citing her husband’s impotence and poor emotional
state, she asked that her marriage contract be rescinded
(faskh al-nikah), an action similar to annulment, in which
the marriage is erased from records. She also petitioned to
execute her mahr, a bold move because the rescission peti-
tion could cancel her claim to her mahr.51 Her husband had
responded that he would grant her a divorce if she pardoned
her mahr. He denied both impotence and poor emotional
state.
Evidently aware of what the judge was getting at, the
young woman responded, “From a medical perspective, yes,
but I lived with him for five months.”
“Why are you still a virgin?”
“He is sick.”
“Well, are you asking for a rescission of the marriage
contract or your mahr?”
“I do not know the difference. He is so depressed that
he cannot function. He is unemployed and drinks, and he is
impotent.” The young woman had obviously been advised
and had drafted her petition to obtain the most beneficial
outcome: divorce and the mahr.
“You are doosheezeh, yes?” He asked, double-checking
that she was still a “maiden.”
She nodded, and the judge turned to the husband, who
sat slumped in his seat.
“You are willing to give her a divorce?”
“Yes.”
“And,” flipping through the file, the judge continued,
“what about the mahr?”
The husband shifted one leg over the other, looked
briefly at the judge, then stared at the floor and said he would
divorce his wife provided she pardon the payment of the
mahr.
The judge looked over to the woman, “Are you willing to
do that?”
Angered, she said, “He took my youth, my life, came
forward with deceit. His mother said he lived in Germany
and was a successful businessman. She never told us that
he had been in the hospital four times and had tried to kill
himself twice. He cut his own tongue.”
Islamico-civil “rights talk”  American Ethnologist
The judge seemed annoyed. “What do you mean he took
your life? You just said you are a virgin. So why do you say
that?”
The woman stood up, faced the judge, and shouted, “I
lived with him! I will be a divorcée now; I will never find
a husband.” Tears streamed down her face. “He ruined my
life. I am only 24 years old. All I wanted to do was finish my
studies, but he would not leave us alone. He fooled us all.
Now I will never be able to marry.”
“But you are still a virgin?” The judge asked for the third
time.
“Yes, medically speaking.”
“Is there any other kind?”
The judge told the husband that the wife wanted a di-
vorce; she would not simply rescind the marriage contract.
The husband’s lawyer had advised his client to rescind the
marriage contract because he would not have to pay the
mahr, as the wife was still a virgin. The judge excused the
husband and his lawyer so he could speak with the young
woman privately.
Then he turned to the woman and said,
You know there is a problem with your claim. The legal
physician’s report said that the doctor could not ascer-
tain that he is impotent. It states only that he is a slow
starter and needs encouragement. So if he is not legally
impotent, then you do not have cause to make the di-
vorce petition. You can still make a petition for your
mahr, and see if he is willing to divorce you. If you are
a virgin, as you say you are, he would only have to give
you half of it. But the medical report says this is unclear.
Your hymen is of a kind which does not make it possible
to know.
She nodded. The judge asked her to leave and brought
the husband back into the room.
“She claims she is still a virgin and the doctor’s report is
inconclusive. If you agree to pay half of her mahr, it will be
all over. She does not want to rescind the marriage contract
because she lived with you, and since both of your medi-
cal reports are inconclusive, I cannot rescind the marriage
contract. Do you understand?”
“There is nothing wrong with him,” the husband’s attor-
ney said. “The doctor’s report says he needs encouragement.
That’s all.”
It then became clear that the issue the husband’s at-
torney was trying to bring forth was the wife’s legal duty to
submit sexually to her husband (tamkin). The wife’s failure
to sexually submit would prevent the husband from having
to pay any portion of the mahr. But the judge did not buy
the argument. He asked the husband, “She lived with you
for five months?”
“Yes.”
“You slept in the same bed?”
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American Ethnologist  Volume 33 Number 2 May 2006
“Yes.” That was all the judge needed. He invited the wife
back and then said, “Unless the two parties agree to go to the
mediator, I will make my decision.”
The wife replied, “I will leave it up to you.”
“It is not up to me. This has been the law for 1,400 years,
since the time God spoke to the Prophet. Even during the
Shahanshahi (the previous monarchical regime), this was
the law; a virgin gets half the mahr.”
He told them to come back in a couple of days to pick
up the written decision and order. The parties thanked the
judge, stood up, and filed out.
This case illustrates some of the negotiations couples
enter into when seeking to divorce.52 The husband in this
case had been advised of the avenue he should follow, but
he seemed to lack resolve. The wife, who had also been ad-
vised of the complex legal permutations of the relief she
sought, downplayed her knowledge of the law and her obvi-
ous strategizing. When she spoke, she emphasized her lack
of knowledge, although her petition clearly outlined her de-
mands. She expressed deference to the judge, despite having
shouted at him. In the end, she said she would trust in the
judge’s decision but not before making strong claims about
the status of her marriage and her right to dissolution and
her mahr.
At the close of the hearing, the judge hinted at the likely
outcome. Should the couple not come together in arbitra-
tion, he would order the husband to pay half of the wife’s
mahr and would execute a dissolution order, as opposed to
a rescission. In stating that the decision was not up to him,
the judge underscored his belief that he is following God’s
command rather than interpreting the law, although inter-
preting is just what he appeared to be doing as a fact finder in
the proceedings. The judge’s statements reflect the blended
nature of the law; it is the message of God and it is standard,
transparent, and constant.
Finally, the woman’s strategy of opting for the mahr as
opposed to the rescission was noteworthy given that she
would have saved social face with rescission, something her
statements indicated she was concerned with. Had she done
so, she likely would not have received her mahr because the
medical reports about her virginity and her husband’s im-
potence were inconclusive. Despite her worries about not
being marriageable after divorce, she did not seek to remedy
that result if it meant not getting any portion of her mahr.
Because women cannot execute or initiate divorce, the
family court becomes a key arena in which they express their
grievances and resist different aspects of patriarchal author-
ity, be it that of the state or the male head of the household.
Sometimes women use the court to renegotiate the terms of
their marriages, entering into this sanctioned arena in which
they can bargain as rights-bearing, entitled subjects.53 The
blended Islamico-civil context of the court inflects subjec-
tivities that may not be available in other arenas, such as the
family arena, in which the husband is the spiritual and legal
200
head of the household. Indeed, use of the family court as the
site for such renegotiations is especially noteworthy given
that the family is so sacred in Islamic life.
These narratives show that the space for intervention
might be small but that the scope of the family court increas-
ingly allows women room to maneuver. Indeed, women’s
increased use of courts as a means to seek changes in
their domestic situations evidences their greater willing-
ness to employ political and legal institutions to obtain
state-sanctioned promises. And, as the primary petition-
ers, women give Iran’s Islamico-civil family law greater form
and substance through their engagement with it. In so do-
ing, women use state-sanctioned means, the courts and civil
laws, to access and obtain justice, as allowed.
Mir-Hosseini has suggested that women’s confident and
articulate performance in the courts is “largely the legacy of
pre-revolutionary reforms which provided a legal frame of
reference in which women were treated on equal grounds
with men” (1993:30). In contrast, I find that the current com-
position of the court allows women to access and enact a
discourse of rights. Indeed, the prerevolutionary reforms to
which Mir-Hosseini refers, such as the FPL, were abrogated
as illegitimate “Western-inspired” laws. That the post-1979
laws went through a process of Islamic purification has given
the existing legal apparatus the legitimacy that it did not have
before.
Family protection law and family court
The resulting system is neither Islamic nor civil, and women’s
confidence does not arise from prerevolutionary nostalgia
or, in many cases, even remembrance. Instead, it results from
something new emanating from the sanctioned blending of
shari’a with certain civil legal norms and against a backdrop
of an increasingly transnational circulation of the language
of rights since 1948.
The laws from which judges make decisions today are
based on interpretations of the shari’a and are codified in
Iran’s civil codes.54 When the clerical leaders who partic-
ipated in the founding of the Islamic Republic made the
decision to Islamicize the judiciary, they retained the civil
codes of the previous era as the tangible expression of the
law. The clerical leaders found that the civil and commer-
cial codes addressed issues in Islamic law to a satisfactory
degree, so postrevolutionary revisions to those sections of
law were modest. The major revisions came in the area of
family law, particularly to the FPL, which the newly empow-
ered clerical leaders condemned as fundamentally opposed
to the laws of Islam.
When the FPL was first enacted by the prerevolutionary
parliament (Majlis) in 1967, its advocates hailed it as a ma-
jor piece of legislation that protected family life in a modern
society (Paidar 1995).55 The FPL addressed inequities be-
tween men and women in the family laws by means of three

primary changes in the law: procedural limitations on the
unilateral right of men to divorce their wives, a restriction on
polygamy, and a qualification of men’s presumptive rights to
child custody.56 The FPL did not give women rights so much
as it limited men’s unilateral rights to polygamous marriage
and divorce.57
Although these changes were hailed as advances in the
protection of women and the family, the laws were also con-
spicuously shaped to conform to the tenets of Islamic law
(Higgins 1985).58 Article 17 of the FPL noted that the con-
ditions under which both parties could petition for divorce
should be stipulated in the marriage contract. The legisla-
tors’ purpose in crafting Article 17 was to openly recognize
that a woman’s right to petition for divorce was a condition
in the marriage contract, ostensibly granted to her by her
husband before the consummation of the marriage. By in-
serting this legal contrivance, the legislators indicated that
they did not abrogate Article 1133 of the Civil Code (1928,
revised 1931) that gave men the unilateral right to divorce
in accordance to Islamic law.59 The FPL, thus, attempted to
retain its concordance with shari’a.
The majority of clerics at the time did not react nega-
tively. But Khomeini disagreed and, from exile in Iraq, deliv-
ered a sharp rebuke of the FPL, published in his book on clar-
ifications of religious questions, Resaleh Towzih al-Masael:
The law that has recently been passed by the illegal
Majles under the name of the Family Protection Law in
order to destroy Muslim family life, is against Islam, and
both its originators and implementers are guilty before
the shari’a. Women who are divorced in family courts
should consider their divorces as null, and if they re-
marry they are committing adultery. Whoever marries
such women knowingly is also an adulterer, and should
be punished according to the shari’a by whipping. The
children of these men and women are illegitimate and
are not entitled to inheritance. [1984:314]
When Khomeini returned to Iran on February 1, 1979,
his plan to revitalize Islam through the creation of a newly
improvised Islamic state began by addressing matters per-
taining to women and family, issues that he felt were at
the heart of a true Islamic society. One of Khomeini’s first
steps toward achieving this vision was to suspend the FPL
on February 26, 1979.60
One of the bases for the nullification of the FPL was that
the Family Protection Courts it had created were deemed
to lack jurisdiction to issue verdicts on matters pertaining
to divorce because, under Islamic law, men did not need to
provide reasons for divorcing their wives. In October of 1979,
the Revolutionary Council approved a proposal to replace
the Family Protection Courts with Special Civil Courts.61
The new courts were authorized to preside over cases in
which couples had disputes. Thus, despite being deemed
un-Islamic, the Family Protection Courts were effectively re-
Islamico-civil “rights talk”  American Ethnologist
tained, although renamed, and continued to function much
as they before the revolution. The verdicts of judges, who at
this time were both clerical and secular, were supposed to
conform to the old civil codes. In cases in which consent to
divorce was said to be mutual, husbands were only required
to register the divorce in the presence of two male witnesses.
In March of 1981, a new bill was presented by then prime
minister Mohammad Ali Rajai that called for the Special
Civil Courts to refer to Khomeini’s religious opinions (fa-
tavi) on matters for which no guidance existed, either from
the Revolutionary Council or from Majlis (Paidar 1995:273).
The bill had the effect of multiplying and confusing the
sources from which the judges could obtain reasoning for
their decisions. Another wrinkle added to the confusion of
laws when, in August of 1982, Khomeini called for purifica-
tion of the laws among judges (Paidar 1995:273). Disgruntled
by the enduring existence of Pahlavi-era “Western” (taghuti)
laws, Khomeini ordered primacy of the shari’a on matters for
which the existing civil codes suggested a different result.
Yet another complication arose at the level of judicial
forums. A special civil appeals court was established in 1985
to determine the validity of decisions based on erroneous
readings of the multiple and often differing laws. Still an-
other type of court, the shari’at court, was soon established
to reckon with the enormous backlog of cases created by the
confusing multiplicity of laws and forums. When this tactic
alone was insufficient, the judiciary announced that pub-
lic courts could also hear family disputes when Special Civil
Courts were not available (Paidar 1995:274).
After much protest and calls for coordination of the laws,
the judiciary invalidated the informal shari’at courts and
denied public courts any further jurisdiction in entertain-
ing family disputes. In the early 1980s, government agents
held seminars to discuss women’s concerns with the un-
even handling of family disputes. In response to one of those
seminars, then public prosecutor Ayatollah Saanei declared
that the civil codes were, indeed, in conformity with the Is-
lamic law (Paidar 1995:275). In consultation with its women
deputies, Majlis formed a Committee on the Family in 1984,
and with the help of NGOs acting in support of women, the
committee sent proposals for remedying the confusion of
family laws to the judiciary (Paidar 1995:275). Soon there-
after, the failure on the part of the state to give women their
rights became the subject of commentary in the pages of at
least one woman’s weekly magazine, Zan-e Ruz (Woman of
Today). Among the judiciary’s failures, the magazine’s edi-
tors cited ambiguous laws and unsystematic decision mak-
ing. The stories of women in the courts told of their unfair
treatment by court officials. Responding to those assertions,
the head of a unit in charge of administering the decisions
in the Special Civil Courts, Mohammad Ali Ebrahimkhani,
stated that the biggest problem with uniformity of laws and
regularization of the judges’ decisions was the lack of legis-
lation to make up for the gaps in the family laws created by
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American Ethnologist  Volume 33 Number 2 May 2006
the abrogation of the FPL (Paidar 1995:276). This was a plea
for a more formalized system of law.
Islamico-civil formalism
A brief overview of the family court’s making and unmak-
ing reveals the extent to which the leaders of the new Is-
lamic Republic were facing questions to which they did
not have ready answers. Many important religious figures
complained of the confusion over the laws. Women, parlia-
mentary representatives, and even members of the judiciary
called for regularization of the judicial process for family
law disputes. The significance of these complaints is that
they expressed the moment in which a crucial shift was tak-
ing place in what was emerging as a blended legal system.
As Iran’s new leaders brought the republican state together
with the ideological underpinnings of the shari’a, a unique
situation arose in the administration of justice through law:
The need for a uniform system of administration was taking
precedence over the moral idealism of Islamic law.
For this reason, calls for uniformity of the family laws
signaled not only a historical but, indeed, also an ideological
shift in the administration of Islamic law. Arjomand notes,
After the revolution of February 1979, the triumphant
Shi’ite heirocracy inherited the political and hierarchi-
cal judiciary organization of the Iranian nation-state,
as formally rationalized by seven decades of Western-
inspired modernization. The declared aim of Ayatollah
Khomeini had been to transform the Pahlavi state
into a theocracy and to Islamicize its judiciary system.
[1988:184]
Agents within the Islamic Republic ultimately an-
swered the prayers for greater legal uniformity and, hence,
transparency and predictability, by making what Arjomand
(1988:185) calls a “historic” decision. The clerical leaders of
the new republic decided to administer the shari’a through
the European civil law system, the model of judicial organi-
zation it had inherited from the previous regime. The ironic
result of creating an Islamic state that aimed to return Is-
lam to the people was that the merger of the shari’a with a
civil legal process ultimately brought about the end of the
traditional system of Islamic justice.
That the area of family law played a large part in the
systematization and rationalization of the legal order is sig-
nificant because of the critical role the laws of the family have
historically played in the Islamic context. In the past, public
and criminal laws were deemed to be within the purview of
the state or the ruling shah, but family laws were thought
to be the sole responsibility of scholars of Islamic jurispru-
dence (Arjomand 1988:184). The codification and legislative
administration of family laws brought the issues of family
out from being the sole province of the clerics and into the
emerging space of the public sphere.62 As attempts to inte-
202
grate shari’a into a uniform set of civil codes led to a more
systematized body of law, they were accompanied by ap-
peals from clerical leaders, members of parliament, jour-
nalists, and others for women to determine what their rights
are and to learn how to use them (Najmabadi 1998).
By 1989, a seemingly more uniform set of family laws was
collected from the various sources of law, including the abro-
gated FPL. A host of legal developments since the 1980s has
reinstated many of the old FPL provisions, even the articles
that were most offensive to clerical leaders.63 And, although
clerical judges replaced the nonclerical, the new judges were
increasingly better trained in the features of civil administra-
tion and were aided by law clerks trained at the universities
as opposed to religious seminaries.
This historical discussion situates the context in which
the new Islamic Republic has attempted to Islamicize fam-
ily laws in Iran. At first, the state agents appeared intent on
abrogating “Western-inspired” law, both procedurally and
substantively. In attempting to do so, however, they actually
revisited and reinstated many of the innovations of the FPL
initially condemned by Khomeini. In this context, and amid
the post-1979 legal developments I have discussed above,
the increasing shift toward a legal arena to adjudicate di-
vorce is important to note. The shift is significant, even if
the space for negotiation is small, given the starting point
of men’s unilateral right of divorce. Increasingly, laws, reg-
ulations, codes, and contracts have moved the concept of
divorce away from being the sole and arbitrary purview of
men into an arena in which women can express themselves
and force men into negotiation. The courts, thus, may not
offer women equal rights in divorce, but they offer an arena
in which women can bargain and men must come to the
bargaining table, when they did not before.
In the end, the clerical leaders retained the civil courts as
a system of adjudication, reinstated the laws, and re-created
the formal expression of the law in civil codes. Why would
the clerics, in an attempt to Islamicize the state and recover a
past that was presumably unblemished by “the West,” to gain
control over Iran’s destiny and institute Islamic justice, re-
main content with a systematization of laws that echoed the
very process that Khomeini had nullified and invalidated?
Arjomand writes, “I suspect that before embarking on this
project Khomeini and his clerical followers did not realize
that the attainment of these goals would entail a legal revo-
lution in Shi’ism. But embark on this project they did, and the
legal revolution they initiated was in full swing” (1988:184).
Mir-Hosseini observes,
It is interesting to note that the ulema did not openly
challenge the secularization of the law when govern-
ments started to introduce reforms which severely lim-
ited the scope of the shari’a. Some felt that it would
be better to keep the shari’a intact than to interfere
with its substance by codification; thus its replacement

was deemed a lesser evil. Others, with modernist views,
favoured its incorporation and collaborated in its codi-
fication in the sphere of family law. [1993:12]
To this I add that the melding of laws was a subtle ac-
knowledgment on the part of the clerical leaders of the con-
ditions of their rise to power. The clerical leaders recognized
that the overthrow of the shah came about as a result of
the collected efforts of multiple groups and political parties.
The combining of shari’a and civil law was a reflection of the
compromises among these disparate groups. It was also an
effect of the final outcome of the revolution: that the entity
that came to fruition after the revolution was neither a pure
or traditional expression of Islam nor a copy of the European
state model, but something different, something new.
Conclusion
In this article, I have explored the relationship between the
discursive practice of rights talk and the configuration of the
postrevolutionary Iranian state, and the effects of that re-
lationship on women’s subjectivities. Taking Iran’s codified
marriage and family laws and the court as points of entry, I
examined the conditions for the production of new hetero-
geneous subjects, who talk in the language of rights, amid
the politics of hybrid state formation. In doing so, I made sev-
eral points about the relationship between Iran’s Islamico-
civil courts and subject formation. First, I argued that the
Islamico-civil courts are hybridized spaces of mediation and
negotiation that permit the production of rights-bearing, in-
dividuated subjects that are also Islamic. Second, I suggested
that women’s subjectivities in the courts are specifically sit-
uated within the Islamico-civil setting, whose very form ren-
ders women entitled citizens. My aim was to show how the
constraints and forces of civil procedures have necessarily
led to a reworking of the norms of the administration of Is-
lamic law and, thus, have produced new possibilities.
In the early years of the revolution, overt changes in Iran,
particularly in women’s dress and mobility, became sym-
bolic of a “return” to tradition, Islam, and, some imagined,
ordered past. The nature of the state, the systematization
of the laws, and appeals to the members of the polity to
become acquainted with their rights, however, suggest the
emergence of something very different. As discontent with
the administration of justice became more and more appar-
ent, attempts to regularize the laws evinced recognition on
the part of state officials that the people had a voice and
were beginning to use it. The merging of the European civil
law system with the shari’a, just as Khomeini’s principle of
Islamic leadership, Velayat-e Faqih (Guardianship of the Ju-
rist) was blended with the French république, reflected a new
kind of governance.
Thus, the contemporary Iranian legal system takes
shape through the interlinking of the civil legal system and
Islamico-civil “rights talk”  American Ethnologist
shari’a, neither of which is homogeneous. Hybrid legal sys-
tems, sometimes also referred to as “legal pluralism,” are of-
ten theorized in the context of colonialism, emphasizing the
way different legal systems “intersect within fields of power
relations” (Merry 2000:18).64 Such studies stress the role of
law in furthering cultural transformations and build on ear-
lier critiques by British social anthropologists who failed to
take into account the effects of colonialism on law (Merry
2000). Increasingly, scholars today refer to the idea of inter-
linking legal spheres as “not benignly ‘plural’ but as imposed
normative orders that reflect power relations of colonialism
and postcolonialism” (Hirsch 1994:214).65 I distinguish Iran’s
civil legal system from that arising out of an imposed colo-
nial order and suggest that both during the time of the shah
and in the establishment of the Islamic Republic, the adop-
tion, importation, and ultimate retention of the civil codes
was a willful political step toward modernization, on the one
hand, and legitimization, on the other hand.66 In doing so,
I highlight a different kind of power relationship evident
within discourses of rights in Iran’s family court, and I ex-
amine how this Islamico-civil structure shapes the ways in
which women engage with the state or its version of Islam.67
Mir-Hosseini has suggested that the hybrid system ren-
ders greater determinacy because the fluid shari’a, “open
to interpretation and capable of accommodating individ-
ual needs and circumstances,” is “ossified” when it is codi-
fied (1993:11). Thus, she notes, this legal blending has dis-
rupted “the traditional equilibrium between the shari’a and
the state-administered law,” and for the first time ever, the
shari’a “has been given a definite legal force” (Mir-Hosseini
1993:11). The concretization of the law that occurs with codi-
fication permits greater accessibility by the common people,
who can then demand greater accountability from state ac-
tors who are constitutionally charged with the protection of
their rights. Definite legal force and transparency bear on the
way claims will be made, which, in turn, inflects particular
kinds of subjectivities when individuals seek access to the
legal realm.
In Tehran’s family court, women not only express them-
selves in rich narratives but also increasingly employ a lan-
guage and tone of the rights-bearing and entitled citizen, an
amalgamated subject formation that has a particular place
and effectiveness in the hybridized court. From these find-
ings, I suggest that the recodification of Islamic family law
has created the situation in which Islamico-civil law (1) is
part of the state’s central authority, (2) has transparency and
a definitive quality, and (3) allows for the rights talk I ob-
served. Although women’s use of the language of rights and
their engagement with legal process provide state institu-
tions with a crucial mirror of legitimization, such engage-
ment also permits critique and allows for unforeseeable pos-
sibilities to appear. It is the emergent hybrid institutions of
the Islamic Republic that provide the conditions in which
some Iranians might access a discourse of rights, demand
203
American Ethnologist  Volume 33 Number 2 May 2006
transparent process, and insist on material results. These
institutions also create the conditions in which new kinds of
claims and remedies can emerge and potentially challenge
those state institutions. This is particularly significant given
that the state took on the “woman question” just after the
creation of the republic and made the social and moral re-
habilitation of women a national project and symbol of its
urgency. Justice for women, therefore, becomes justice in the
Islamic Republic.
I have shown how women in this context are exhorted
to educate themselves about their rights, but, more impor-
tantly, I have argued that women’s newfound familiarity with
law and legal procedures can be read simultaneously as their
insertion into the realm of the legal subject of liberalism—the
self-possessed individual with rights, and of the legal subject
of Islamic jurisprudence—the jurist who studies, ponders,
and contemplates the law. It is at this juncture that, as schol-
ars, we might better understand how women embody and
perform citizenship in modern Islamic states, allowing us
to cultivate visions of women’s rights in such societies that
are more complex than the seemingly bifurcated debates
between liberal rights talk and Islamic culture talk.
Notes
Acknowledgments. This article draws on field research spon-
sored by Stanford University. Versions of this analysis were presented
to the Stanford Humanities Center and the Department of Anthro-
pology at the University of Washington. The ideas presented here
greatly benefited from comments by the community of scholars
at the Stanford Humanities Center, 2001–02. I am grateful for the
incisive observations and suggestions of Mona Atia, Michael M. J.
Fischer, Lisa Hajjar, Michael W. McCann, Sally E. Merry, Anu Sharma,
Claire Suni, anonymous reviewers for AE, and Virginia Dominguez
and Linda Forman. I thank Enayat Osanloo and Darryl Holman for
help with demographic analysis. Mary E. Hegland, Carol L. Delaney,
Joel Beinin, Paulla A. Ebron, and Sylvia J. Yanagisako gave valuable
comments on draft versions of this article. I am indebted to the
Iranian women who willingly shared their lives with me during my
research. Responsibility for any errors lies with me alone.
1. Throughout this article, I use the term divorce when speaking
of what in Persian is called “talaq.” I note that talaq, which is better
translated as “repudiation,” is used to describe the dissolution of a
marriage. Historically, only the husband has had the right, under
Islamic cultural practices, to repudiate his wife. As I will discuss,
today’s practices increasingly include women’s initiatives and in-
creasingly resemble what is known in Europe and the United States
as divorce, but they fall within the legal category of “cancellation of
marriage” under Iran’s civil codes. Thus, technically, talaq remains
the sole province of men. This article, moreover, does not delve into
the different kinds of divorce in Muslim family law. For details, see
Esposito with DeLong-Bas 2001 and Mir-Hosseini 1993.
2. In the fall of 2002, a new courthouse opened in the outskirts of
town. To better handle the increased volume of petitions being filed,
more recently, the city has opened branches of the court throughout
Tehran.
3. In essence, the wife requests that the right to dissolve marriage
be delegated to her on a finding by the judge, which she must prove,
that her husband has violated the marriage contract.
204
4. In Iran’s Civil Code of Marriage and Family, Article 1111 allows
for a wife to petition the court to compel her husband to pay main-
tenance. In the case of the husband’s refusal to comply, Article 1129
permits the wife to petition the court for divorce.
5. Article 1119 of the code allows for such stipulations in the mar-
riage contract.
6. Martin Chanock (2000) points out that, although such rights
are not necessarily universal by nature, they have universalizing
tendencies, something that he sees as a productive foil to rigid claims
of cultural exception by despotic leaders.
7. This hybrid state structure has been contested since the revo-
lution, not just by secular critics but also by Iran’s highest-ranking
clerical scholars. See Adelkhah 2000.
8. I do not claim that the state was absent in these works. Instead,
I suggest that the merger of Islamic law and republic produces mul-
tivalenced subjectivities and legitimates new discourses of rights.
9. Mahr, short for mahrieh, is the bride’s portion, negotiated on
signing the marriage contract. Some scholars have referred to the
mahr as a gift, as it is so referenced in the Qur’an (Motahhari 1981).
Mahr, however, in its substantive legal manifestation, is an enforce-
able sum arising out of the marriage contract to be paid by the hus-
band directly to the wife at any time she wishes to have it executed.
10. Ziba Mir-Hosseini (1993) has described and delineated
women’s limited divorce rights in Iran.
11. A judge may decide that, through some action or inaction, a
husband’s divorce right can be delegated to his wife. The burden of
proof lies with the wife; this is essentially the purpose of the hearing.
The judge must determine if the wife has brought forward adequate
evidence to support the delegation of the divorce right.
12. Hajj Agha is a term literally referencing someone who has
made the pilgrimage to Mecca. In the colloquial Persian, as it is in
this context, it is a form of address reflecting both respect and piety.
13. See, for instance, Coulson 1964 and Shacht 1964. Historically,
the administration of Islamic law has resided within the province
of jurists, those educated in the scholarly pursuits of the science
of jurisprudence (al-figh; Arjomand 1988:184). That is, only those
persons aware of and educated in the broad scholarly issues in-
volved in carrying out justice within the Islamic context could be
in the position to administer the law. For this reason, some schol-
ars have referred to Islamic law as “jurist’s law” rather than “judge’s
law,” denoting the concern with ethical issues inherent in the ad-
ministration of law in the Islamic context (Schacht 1964). Some have
suggested that jurists trained in al-figh had an aversion to a rational-
ized system of process that could be carried out by mere judges not
trained to appreciate the underlying moral considerations embed-
ded in the shari’a (Arjomand 1988:184). Thus, the administration
of shari’a justice was characterized by a lack of procedural unifor-
mity through the ages, as recognized by scholars working in nu-
merous regions, most notably Max Weber, who referred to this as
“qadi-justice” (Weber 1978). Thus, moral considerations and a per-
sonalized style of process were the characteristic traits of Islamic,
or qadi-justice (Weber 1978). As Joseph Schacht put it, “Islamic law
provides the unique phenomenon of legal science and not the state
playing the part of a legislator, of scholarly handbooks having the
force of law (to the extent which Islamic law was applied in practice)”
(1964:210).
14. By subjectivity, I refer to the production of the “self” (Foucault
1972, 1977, 1978, 1991). In examining subjectivity, I am interested
in delineating the relationship between the emergence of the self
and the ideological conditions that make possible its very formation
and expression. Such ideological conditions are observable within
hegemonic sites through analyses of their historical production and
their operations, which is the course through which my ensuing
discussion navigates.

15. Subjectivities are inflected through multiple registers
(Benhabib 1992; Bhabha 1994; Comaroff 1995; Hall 1996). The le-
gal is one register that shapes subjectivities. The hybrid family court
in Iran is one important space in which multiple registers are at play
in the formation of subjectivities.
16. Of family courts in Iran and Morocco, Mir-Hosseini writes,
“The court system is used as the last resort. There is a great deal
of stigma attached to bringing to the courts matters which be-
long to the private domain of the family” (1993:15). Susan F. Hirsch
also notes, “For some, the act of going to court may increase their
marginality with respect to family, neighborhood, and the commu-
nity” (1994:219).
17. My emphasis in this article is on divorce rights, but the same
can be said of property and inheritance rights as well. In claims for
blood money (dieh) and inheritance, advocates of change similarly
make their appeals through a positive discourse of rights based on
equal protection of the laws.
18. Angela McRobbie suggests that multifaceted subject forma-
tion occurs through the “particular layering of historical discourses
which we inhabit” (1996:247).
19. Since the constitutional revolution of 1905, there has been an
effort in Iran to merge Islamic law and European code-based law;
this move was especially pronounced in the 1930s (Fischer 1990).
Much of the resulting law, in fact, was carried over into the post-
1979 revolutionary period, with certain rights gained in the 1970s
withdrawn on grounds that they did not conform to the shari’a.
20. Obviously, people in Iran made rights-based claims well before
the postwar era, for instance, during Iran’s constitutional revolution
(1906–11) and during the struggle for equal rights for women in the
Babi and Bahai movements of the mid-19th century, but the rights
talk to which I refer has specific reference to the post–World War II
period.
21. Louis Henkin, for instance, says, “Ours is the age of rights.
Human rights is the idea of our time, the only political-moral idea
that has received universal acceptance” (1990:ix). Henkin notes the
internationalization of rights talk as the overriding popular ideology
accepted, at least in theory, by societies throughout the world, as
evidenced by their accession to the UN Universal Declaration of
Human Rights.
22. Of course, this is not to suggest that this is the first or the only
liberal state-making project Iran has seen. For instance, Michael
M. J. Fischer (1980) traces the emergence of a liberal state project
through the bourgeois revolution that began with the 1873 protests
and moved in a century-long set of stages, through 1905 and 1951.
23. Michael McCann (1994) has shown how complicated and
paradoxical subject formation is, noting that the liberal self does
not always embrace rights, as one might expect.
24. I differ in my approach to understanding rights talk by fo-
cusing on the conditions that allow for and produce rights-bearing
subjectivities. In doing so, I distinguish the conditions of possibil-
ity from the active “adoption” that Merry finds. The agentive act of
“adoption of a rights consciousness” (Merry 2003:344) is shaped by
the particular legal arena in which the women enter. In the set-
ting of courts, scholars often write about agency, examining the
courts as spaces for maneuvering (Hirsch 1994; Lazarus-Black 1994;
Merry 1990; Yngvesson 1993). In this article, I do not seek to address
women’s agency, its lack, degree, or kind. Agency is a question of
potential for action, whereas subjectivity is an expression of self-
hood in a social order. Whereas Merry contends that “one of the
powerful consequences of bringing gender violence cases to the
attention of the legal system is the victim’s and perpetrator’s en-
counters with the new subjectivity defined within the discourses
and practices of the law” (2003:346–347), I consider what those
discourses and practices of law (in Iran) are and ask what condi-
Islamico-civil “rights talk”  American Ethnologist
tions have come together to allow for such new possibilities now.
The difference in my argument lies in my claim that conscious-
ness of rights, which is the subject addressed by Merry, and modern
liberal subjectivities, although perhaps related, are not the same.
That is, one may inhabit a subjectivity of rights bearer but not
necessarily be conscious of it in the same way that, for instance,
Merry’s litigants are conscious of their rights because of their in-
teractions with “police, prosecutors, judges, and probation officers”
(2003:343).
25. Mindie Lazarus-Black (2001) comes to a different conclusion
for Trinidad and Tobago, finding that it is not women’s use of the law
or experiences with the law that gives them greater consciousness of
their rights but, rather, the law’s existence and society’s acceptance
of it.
26. The Iran Statistical Yearbook 1381 (Statistical Centre of Iran
2002) shows a steady rise in the number of divorces registered. Schol-
ars have also noted the recent trend in the rise of divorce. Mir-
Hosseini (1993:45) observed that women’s divorce petitions out-
weighed men’s. See also, Paidar 1995:292 and Afshar 1998:195.
27. Tehran is one of 28 provinces. The vast majority of divorces
take place in urban areas.
28. A 1992 law requires men to go to court to attend arbitration
and to obtain a letter of noncompatibilty, whereas before that date
they were only required to register the divorce at a local notary. See
also N. 63.
29. Indeed, my male respondents rarely exhibited the detailed
knowledge of court procedures and legal regulations that my female
respondents did.
30. Of 60 divorced women I asked, 5 percent were represented in
court by legal counsel. A much larger number, 87 percent, had sought
the advice of a lawyer, friend, or family member before coming to
the court, and just over 8 percent went to the court, like Sahar, to
obtain information for the first time. Obviously, class factors into
these findings. Women represented by lawyers were often wealthy
and upper or upper-middle class, whereas those who went straight
to the court were working class.
31. Brinkley Messick (1993) has disputed the assertion that oral-
ity represents a lack of formalism in Islamic legal conscience.
Fischer (1980, 1990) has also shown that the system is not really
informal but works from previous cases and instances through
the interpretive procedures learned in the maddrassehs, or Islamic
schools.
32. Orality is a prominent feature of English and U.S. law as well.
Witness testimony and depositions make up a large part of eviden-
tiary proofs admitted into court. In U.S. criminal law, the rights to
face one’s accuser and to have the charges read aloud are constitu-
tionally protected.
33. Paul Rabinow recalls that rights talk does not come into being
in the abstract and compels scholars to understand how rights talk,
“a set of discursive and nondiscursive practices,” takes shape locally.
The imperative is to “learn more about the variety and practices of
human rights groups as well as the (now visible) preexisting moral
landscapes to which the carriers of rights culture bring their message
of change and improvement” (Rabinow 2002:142–143).
34. What exactly this change represented is highly contested. Al-
though some have a sense that veiling was intended as a return to
Islam, the popular nature of the revolution puts this proposition in
doubt.
35. Much literature has addressed this issue and has pointed out
that prerevolution women’s clothing, hair, makeup, and even laugh-
ter characterized society’s excesses (Najmabadi 1991; Tohidi 1994).
36. Lata Mani (1989) has shown that women are neither the ob-
jects nor the subjects of ideological debates but the ground on which
the debates are fought.
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American Ethnologist  Volume 33 Number 2 May 2006
37. There was also talk of mandating veiling and disenfranchising
women, although the latter never happened. The process of reveiling
took place over a period of two years.
38. Valentine Moghadam (1993) also notes that these were the
women who had most benefited from the state’s modernizing
policies.
39. Numerous scholars, including Farah Azari (1983), Patricia
Higgins (1985), and Nayereh Tohidi (1991), have pointed to class
as a major factor in guiding participation in this protest.
40. Among them were those whose families previously would not
have allowed their daughters to go to university or work in offices
alongside men.
41. The Revolutionary Council, which had replaced parliament
after the revolution, was created in early 1979 to determine the con-
figuration of Iran’s new government.
42. I am referring to a specific socioeconomic cross section of
women activists. Although represented broadly in other ways, such
as age, education level, religious affiliation, and politics, the major-
ity of these women were part of the urban middle and upper-middle
classes, many of whom enjoyed higher education and comparatively
comfortable economic status. Today over two-thirds of Iran’s popu-
lation lives in urban areas (Population Reference Bureau 2005).
43. Moghadam notes, “What is especially interesting is that it is
now educated and employed Islamist women in Iran . . . who are
demanding a modification of the rigid gender rules implemented
in the early 1980s and pushing for changes in family law and labor
legislation to increase women’s rights” (1993:59).
44. I am not making any argument for or claim about the truth of
these statements. My discussion is intended to explore the historical,
political, and ideological bases for these reemerging discourses of
rights. What I am taking note of is that Taleghani employs rights talk
not in a context of Islam alone but one of republicanism, too.
45. One might also note that saying an issue does not conflict with
Islam is decidedly different from suggesting that it derives from a
reinterpretation of Islamic sources.
46. This offense is adjudicated less frequently today, and, when
it is prosecuted, it is increasingly related to the political currents in
Tehran as a way of clamping down on potential civil unrest.
47. Over half of Iran’s 68 million people are under the age of 25
(UN Department of Economic and Social Affairs 2005).
48. Much scholarly work has examined Iran’s Islamic repub-
lic (Abrahamian 1993; Arjomand 1988; Esposito 1998; Fischer and
Abedi 1990; Mirseppassi 2000). After the revolution, the new lead-
ers sought to model the state on France’s Cinquième République
(Abrahamian 1993). In doing so, Iran kept much of the governmen-
tal structure, legislative format, and legal codes and processes from
the previous regime, which had emerged through a struggle for con-
stitutional government beginning in 1905 (Afary 1996). The current
disputes among the state’s numerous factions and the even more
diverse nonstate actors must be viewed against a history of consti-
tutional struggle, with monarchy first, clerical rule presently, and
imperialism throughout. This is not to suggest that the postrevolu-
tionary changes made to the governmental structure were insignif-
icant. The republic was made to adapt to Khomeini’s Guardianship
of the Jurist through the attendant invention of an Islamic state in
which the highest authority on Islam would provide a final check on
the conformity between Islam (God’s law) and governance (human-
made law). At the same time, the nationalistic language that had gar-
nered support for the overthrow of monarchical rule was embedded
in republican promises that fuel much of the movement for reform
today. The Guardianship of the Jurist, the Council of Guardians,
and the Expediency Council distinguish Iran’s republic from other
republics, but the parliament, the newly created presidency, the
revised constitution, and attention to representation gave the
206
Islamic state its republican configuration. The republican promises
of equal protection under the law, now authenticated by Islam, were
tools that Iran’s family lawyers and lay litigants deployed to bring to
fruition a new concept of rights in Tehran’s family court.
49. In the 2001 election, 78 percent of the voters voted for him.
The sheer volume of votes cast (about 80 percent of all eligible vot-
ers went to the polls) is important as well. The Iranian electorate
was acting within political and legal institutions that came into ex-
istence and have been developing since 1979, using forms of re-
publican governance, such as direct representation, to press their
political, social, and economic agendas. In the most recent presiden-
tial elections (June 2005), debates among reformists over whether
they would go to the polls similarly reflect the relationship between
voting and legitimizing the system.
50. Why this shift, as I see it, in which individuals are once again
making claims on the state for equal protection of the laws and civil
liberties, is occurring after 20 or so years is a question that should
be addressed as well. One reason is the effect of the eight-year war
with Iraq. People tired of bloodshed attempted to seek out political
and legal avenues of recourse for their difficulties. Another reason
lies in the numbers; as noted, half of Iran’s population of 68 mil-
lion is below the age of 25, and universal suffrage begins at 16. The
power of this contingent does not come from numbers alone. Be-
cause many young people were not born at the time of the revolu-
tion, they have a degree of credibility that people like the women
protestors in 1979 did not have. That is, conservative factions of the
government, or “hardliners,” have more difficulty discrediting their
current critics as “Western puppets,” especially when those critics
couch their grievances in the constitutional promises that the cler-
ical authorities themselves legitimated.
51. Faskh al-nikah (rescission of the marriage contract) must oc-
cur before the wedding (i.e., consummation) and may be compared
with an annulment in the Catholic context. As a result, the marriage
is not on record, and the woman’s sociolegal identity is not marred
by divorce. When, however, a woman opts to have the marriage con-
tract rescinded, she is not eligible to receive her mahr. If the basis
of the faskh al-nikah is the husband’s impotence, a woman who has
not consummated her marriage may obtain half of her mahr.
52. Such negotiations have become more common in Iran since
enactment of the 1992 law that required men to petition the court
to obtain divorces.
53. The husband’s status in the family is specified in Civil Code
Article 1105. In fact, obedience to her husband is a wife’s stated duty
in the marriage contract.
54. In examining the blending of civil law with shari’a, it is impor-
tant to make an analytical distinction between the adoption of civil
or common law in the colonial and postcolonial context, in which
the framework was imposed by the colonizers and their sympathiz-
ers. In contrast, the prerevolutionary Iranian state willfully adopted
a civil structure as part of a greater plan toward modernization. The
founders and leaders of the postrevolutionary state did not find the
civil system at odds with the Islamization of the nation-state or its
legal structure. See Arjomand 1988 for further discussion.
55. The FPL was also an expression of Mohammad Shah’s mod-
ernization program, called the “White Revolution.” The 1963 White
Revolution was a national reform program that included the enfran-
chisement of women.
56. The new law required the initiating spouse, whether the hus-
band or the wife, to petition a family protection court before a di-
vorce could be granted. Prior to this, men only needed to register
their divorces. The intent was to require divorcing parties to enter
formal mediation before a marriage would be dissolved; this is not to
suggest that men’s unilateral right to divorce was repealed, only that
it was diverted into a formalized judicial process. That is, men still

retained the right to divorce their wives without cause. The new law
simply required parties to partake in a formal process of mediation
to try to resolve their differences. Also, under certain conditions,
women could petition the court for a divorce, even if such a stipu-
lation was not stated in their marriage contracts (e.g., if a husband
took a second wife without the permission of the first). In addition,
divorcing couples were compelled to make formal arrangements for
custody and maintenance of their children before a divorce could
be granted.
57. Amended in 1975, the FPL raised the age of marriage for
women to 18 and for men to 20. The revised FPL also allowed either
spouse to petition the court if the other engaged in employment
considered detrimental to the family; the 1967 version had only
given this right to men. Women’s-rights advocates considered the
1967 law an improvement because prior to its enactment, women
had to obtain the permission of their husbands to work outside of
the home. The 1967 law shifted the burden to the husband to prove
that gainful employment was detrimental to the family (Vatandoust
1985).
58. About 90 percent of Muslims in Iran are Shi’ites, the branch
of Islamic jurisprudence to which the state adheres is Ithna ‘Ashari,
also referred to as Twelver, or Jafari, Shi’ism. Shi’ites believe that Ali,
the Prophet Mohammad’s son-in-law, was his legitimate successor.
Even before the 1979 Revolution, Iran’s constitution expressed its
commitment to Twelver Shi’ism. Thus, in referring to Islamic law, I
am speaking specifically to this branch.
59. Article 1133 of the Iranian Civil Code is the codification of
the husband’s unilateral right to divorce. Article 1133 is deemed the
word of God, divinely inspired and, therefore, unimpeachable (Kar
2001).
60. Ironically, the invalidation of the FPL effectively returned legal
issues involving the family to the 1931 Civil Code, which was an
attempt by Reza Shah to modernize the shari’a (Paidar 1995:271).
61. The Revolutionary Council was formed on January 17, 1979,
one day after the shah’s departure from Iran. When the Iranian gov-
ernment fell on February 14, 1979, Iran’s parliament was immedi-
ately dissolved. The council officially took over to deal with all im-
mediate transitional issues, including the legislative function of the
state, until a new parliament could be elected. The Provisional Gov-
ernment was the executive branch of the Revolutionary Council and
was tasked with overseeing the transformation of all political and le-
gal institutions. With the support of the Islamic reformist Liberation
Movement, headed by Mehdi Bazargan, other parties, including the
National Front and Iran’s Communist Party, also extended their en-
dorsement of the Revolutionary Council. Bazargan, a lay reformist
who was named prime minister of the Provisional Government, had
envisioned a power-sharing arrangement with the clerical establish-
ment, a vision Khomeini soon disabused him of (Arjomand 1988).
62. The emerging public sphere in the Middle East is a rich area
of scholarship addressed by numerous scholars. See Eickelman and
Anderson 1999 and Göle 2002.
63. In 1992, Majlis enacted a new law, Amendments to Divorce
Regulations, that compelled both husbands and wives to petition
the court before being able to dissolve a marriage, forcing parties to
enter into arbitration. The 1992 law also included a provision that
provided for postdivorce maintenance (ojrat al-mesl) for women,
a legal form of redress that was not previously thought to be pro-
vided for in the shari’a. Another provision, written in as a result of
pressure by women’s groups, NGOs, and parliamentarians, was the
appointment of women advisory judges to work in cooperation with
the male judges. An important cause of action that arose in the mid-
1990s was the equitable division of a couple’s marital assets. In the
event that a husband decides to divorce his wife without good cause,
she is entitled to half of the wealth and property of the husband.
Islamico-civil “rights talk”  American Ethnologist
Although the shari’a, in principle, prohibits legislators from requir-
ing husbands to give justifications for divorce, the newly devised
laws compelling arbitration, postdivorce maintenance, and equi-
table property division seek to proscribe specious divorce claims by
men and to protect women, at least to some financial extent, from
the otherwise unencumbered unilateral right of men to divorce. In
1997, after much protest and deliberation, Majlis qualified child-
custody laws so that, in the event of divorce, if a wife could show
that her husband was unfit to care for the children, the court had
the power to award the children to her. By 1999, women again were
able to stipulate the right to initiate divorce should a husband take a
second wife without obtaining the permission of the first. The extent
to which the remedies, new and renewed, may be able to address
women’s grievances remains to be seen.
64. I prefer to use the term hybrid as opposed to plural because of
the frequent characterization of the latter as referring to separate le-
gal spheres. Peter Fitzpatrick (1992), though, notes that, increasingly,
studies of legal pluralism recognize the blending of legal systems.
65. Bernard Cohn (e.g., 1989) has written extensively about the
merger of Hindu and Muslim laws with British common law in colo-
nial India.
66. Here I follow others who have studied the legal and social
transformations that occurred through willful mergers of Islamic
law and civil law (Bowen 1999; Messick 1993).
67. This power relationship emerges from the populist nature of
the revolution, which is often misunderstood as Islamic and unitary.
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accepted August 24, 2005
final version submitted July 22, 2005
Arzoo Osanloo
Departments of Anthropology and Law, Societies,
and Justice
University of Washington
M421 Denny Hall
Seattle, WA 98195
aosanloo@u.washington.edu
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