On 11 November 2021, the ACRPS Iranian Studies Unit hosted Arzoo Osanloo for a lecture titled “Preserving Right, Forgiving Wrong: Codifying Mercy in Iranian Criminal Law.” Osanloo is Professor in the Department of Law, Societies, and Justice at the University of Washington, where she is also the Director of the Middle East Center. The lecture was moderated by Mehran Kamrava, Director of the ISU and Professor of Government at Georgetown University in Qatar.
Osanloo’s lecture draws from her recent book,
Forgiveness Work: Mercy, Law, and Victims’ Rights in Iran (Princeton University Press, 2020). The book is the recipient of the Law and Society Association’s Herbert Jacob Book Prize for new, outstanding work in law and society scholarship.
Forgiveness Work examines Iran’s criminal justice system through its emphasis on victims’ rights, forgiveness, and mercy, and is based on extensive research conducted in criminal courts in Tehran.
According to Osanloo, most of the laws in Iran were rewritten after the 1979 revolution in order to conform to Islamic principles. Many revisions to criminal laws, primarily the penal and criminal procedure codes, were only finalized between 2012 and 2015. When the laws were revised, they codified for the first time the possibility of the plaintiff’s forbearance, which stemmed from the Muslim mandate of mercy and compassion.
Osanloo explained that “the criminal code made retribution a right of the victim’s family, and as plaintiffs, they can demand that the state carry out retributive sanctioning on their behalf, or they can forgo it.” The code of criminal procedure requires judicial officials to assist the parties in reaching a settlement. However, the law provides little guidance, either to victims or to judicial officials, on how to achieve reconciliation. Osanloo argued that “the tension between this duty to forgive, and a purposeful absence of guidelines on how to forgive, produces a semi-autonomous social field of
forgiveness work, an advocacy marketplace that commoditizes forgiveness and opens up new avenues for negotiating reconciliation.”
Various agents are involved in this social field of forgiveness work. Osanloo stated that many governmental and non-governmental groups and individuals have intervened in murder cases in an attempt to reconcile between victims and perpetrators, and change the legal culture from the ground up. According to Osanloo, there is an “emerging social movement for forgiveness aimed at saving individuals from execution.” Social agents are cultivating “a feeling of forgiveness” by attempting to change the culture.
Referring to the sources of motivations by the social actors involved, Osanloo added that “mercy and compassion are foundational and constitutive of an Islamic concept of justice.” Scholars argue that Islam’s ethical religious code “structures a dialogical call and response of mercy as forbearance in Qisas cases.” The legal system, according to Osanloo, is based on an ethical religious system that establishes a hierarchical power relationship between the grantor of forbearance and the perpetrators. “The Quran strongly encourages forbearance, and this scriptural compulsion has permeated Iran’s criminal laws.”
Osanloo maintained that the law gives the judges some discretion in the post-sentencing reconciliation, not in Qisas and sentencing. “The sentence is more of a right to Qisas than a Qisas, and this implies to the victim’s family that they do not have to exercise that right.” Social workers suggest that the victim’s family also has the right to forbearance. This restriction of Qisas and emphasis on reconciliation in the codes, however, does not solely come from retribution. Osanloo stated that problem with Iran’s criminal code is the definition of intent. “The definition of intentional murder is overly broad, and it encompasses many situations that would not be considered intentional in other jurisdictions.”
Osanloo concluded by examining an individual case of forbearance motivated by the principle of
amr be ma‘ruf (commanding what is right). The case involved two young men who got into a fight that resulted in one of them injuring the other in the neck. The perpetrator was charged with causing the victim bodily harm. However, the victim’s family, who were members of the Basij, went to the court and expressed their forgiveness, resulting in the perpetrator’s sentence being reduced. After his injury healed, the victim went to the Arba‘een pilgrimage twice and died at the end of the journey. The perpetrator was apprehended again and charged with intentional murder on the grounds that the victim’s injuries may have contributed to his death. The victim’s family once more chose to forgive the perpetrator based on the principle of
amr be ma‘ruf.
Based on Michael Cook’s research on the history, origin, and development of this principle, Osanloo noted that it appears in eight Qur’anic verses and that the two phrases are rarely used independently. The principle of
amr be ma‘ruf is a broad affirmation, and the behavior to which it refers is unclear. Cook demonstrates that
ma‘ruf is not a legal term, but rather refers to “the performance of an action in a decent and honorable manner.” The Quran assumes that some of it is already ordinary knowledge, implying forbearance has a normative quality. “The judges and the social workers are drawing on this ordinary aspect of forbearance that is embedded in multiple layers but is part of the ordinary, and Islamic law is not just something that has ossified but is always in the process of becoming, and it draws from these multiple sources of ordinary culture and rituals to animate the sacred text.”
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