This is the first thorough and systematic study of the legal system of Shiite Iran based on three court registers of two of the most important mojtaheds of Tehran, covering the period from 1867 to 1889, on the one hand, and on the deeds of the most important waqf endowments in Tehran throughout the nineteenth century. It is a pathbreaking empirical study that completely changes our understanding of Iran's judicial system and legal order.

Nobuaki Kondo's painstaking analysis of the transactions in the courts of the leading mojtaheds, recorded in two registers of Sayyed Mohammad Sādeq Sangelaji and the register of Sheykh Fazl-allāh Nuri, leads him to challenge the conventional view of the judicial system as divided between the religious (sharʿi) and secular (ʿorfi) courts and offer a more adequate conception of the latter. He summarizes (p. 167) his findings based on painstaking typological and statistical analysis of these registers, by stating that the “shariʿa courts were places where legal documents, such as hokms and deeds of settlement, were issued, rather than places of trial”. This finding in turn leads him to question (pp. 42–4) whether a Shiite mojtahed was a judge or a public notary. The answer is clearly the latter.

This surprising finding is not hard to explain. The office of the Kadi steadily declined in Iran under the Safavids after the establishment of Twelver Shiism as its state religion in 1501. It virtually disappeared during the Afghan–Afshar-Zand interregnum, except perhaps as an honorific title. In the early nineteenth century, the trial courts (singular, mahkama) may have been revived ad hoc by some locally powerful mojtaheds (authoritative jurists) of the Shiite hierocracy such as Mohammad Bāqer Shafti in Isfahan, but we do not meet the (Arabic) term mahkama often until the early twentieth century, when it is used to refer to the courts of law in general and soon to be replaced by its Persian equivalent, dādgāh, during the secularization of the legal system in the 1920s. As they were not being appointed judges, the new legal function assumed by the learned members of the Shiite hierocracy that had grown independent of the state during the eighteenth-century interregnum was the registration of deeds of ownership and transactions (muʿamelāt), certification of titles and settlements and issuing of opinions on demand, and it did not extend to holding trials. Although the mojtaheds were recognized as the hokkām-sharʿ (hierocratic judges) and were entitled to issue binding legal verdicts (singular, hokm), and we do hear of mahkama-ye sharʿ (religious court), especially in connection with criminal verdicts, their “courts” were usually called mahzar-e sharʿ in the singular (mahzar literally means place of presence), and can more accurately be described as registries. However, although the mahzar was not a court of trial, it could be considered a court of settlement. The Shiite jurists appear to have stretched the scope of the contracts of settlement (mosāleha) in the light of their role in the Iranian legal structure as widely as possible to cover a very broad range of transactions including sale, donation, money lending and rent (pp. 79–88). Money lending as “conditional sale” [of the collateral] is one of the best known legal “tricks” (hiyal) in Islamic jurisprudence. What is perhaps not so well known, and emerges from Kondo's analysis, is the widespread practice of money lending among individuals, with professional money lenders being strikingly absent (pp. 82–4).

Persianate political theory considered the royal administration of justice the cornerstone of the legitimacy of kingship and fundamental to the king's function of the maintenance of law and order. This remained unchanged after the fall of the Safavids: as in the Safavid period, punishment of the four crimes (ahdāth arbaʿa) – murder, theft, rape, injury – remained royal prerogative (p. 27). The organ established for the administration of justice by the Qajar Shahs in the first half of the nineteenth century was the Divān-khāna (bureau of justice), and it heard civil cases involving the mojtaheds and their ruling on earlier stages, and in fact functioned as a court of appeals. Kondo shows that the central Divān-khāna remained the main organ of the secular, or rather royal, administration of justice in the second half of the nineteenth century, and it continued to hear civil as well as criminal cases. Civil complaints comprised over two-thirds of its cases, and they could involve co-operation with the authoritative Shiite jurists. Earlier opinions (fatva) and verdicts (hokm) of the mojtaheds were brought to the trials, and the verdict of the Divān-khāna could be sent to a mojtahed for confirmation when appropriate (pp. 30–35). In short, it is misleading to identify the Divān-khāna as an ʿorfi court whose function would be the administration of customary law, as was implicitly done by some clerics in the constitutional debates of 1906–07 and is often done by contemporary scholars. It was rather the organ of the royal administration of justice, which was transferred from the Shah to the state in the course of the judiciary reforms of the second half of the nineteenth century. These reforms included the creation of a police force under the Italian Conte di Monteforte in 1879, after which criminal cases were taken over by the police, who were instructed to seek the opinion of the mojtaheds in hodud cases (pp. 24–5).

The obverse side of the growth of judicial power in the state in the second half of the nineteenth century was the decline of large-scale, “public” waqf of the royal family and grand viziers, and the mushrooming of small “private” or family waqf recorded in the registers of the mojtaheds (ch. 7). Nevertheless, the largest endowments in Tehran were founded by the Qajar kings. The Shah Mosque was built by Fath ʿAli Shah in 1830, and the Qanat-e Nāseri was built by Naser al-Din Shah in 1856. The viziers and other bureaucrats and military officers created almost one-third of Tehran's endowments, including the famous Marvi madrasa (pp. 97–107, 115–9). Furthermore, female members of the Qajar family frequently endowed public waqfs (p. 101).

Private or predominantly non-public endowments were often administered by members of the founders’ family and for their benefit. What is interesting in the Qajar period is the extension of the patrimonial appropriation of endowments from ruling class families to clerical dynasties (pp. 111–2). The merchants seem considerably less prominent as founders of endowments in Tehran than the patrician families of other Iranian cities.