Mixed Jurisdiction Law Beyond the Purported Common Law-Civil Law Dichotomy: The Property Endowment in Iran

Abstract

Mixed legal systems, which are also referred to as the third legal family, have traditionally been reduced to those featuring interactions between rules, doctrines, methods and practices of the Civil Law and the Common Law. Over the past century, the legal scholarship has explored in great depth the potency of mixtures between the Common Law and the Civil Law—not only for purposes of intra-jurisdictional legal analysis and practice, but also for purposes of supra-jurisdictional private law harmonization initiatives. Legal traditions and sources of law outside the purported Common Law-Civil Law dichotomy, however, have mostly been reduced to receive honorable mentions under a pluralist conception of mixed jurisdictions. This has especially been true for mixtures involving religious law. Newer developments, however, suggest that the status quo in the comparative law narrative, including the narrow conception of mixed jurisdictions, may be eroding. Mixed jurisdictions are by their nature uniquely positioned to make unencumbered contributions in the discussion about pluriversality in the law, but they can only do so if one looks beyond the encrusted criteria that have traditionally been deployed for membership in the third legal family. This Article will therefore make a foray into the mixed law of a jurisdiction far away that has been shrouded in great mystery—the Islamic Republic of Iran. The Iranian “waqf” ( وقف )—”owqāf” ( اوقاف ) in the plural form—will serve as a case study for a richly textured fabric of mixed law that more than rivals what has traditionally been required for membership in the third legal family. Grounded in Islamic jurisprudence, clothed in legislated law, and housed in a codification, the Iranian waqf may be described as a property endowment that detains the endowed property and removes it from circulation, while devoting its utility to a designated purpose. The analysis of the legal framework of the Iranian waqf further reveals its unique ability to engage into comparative dialogues—not only with the waqf in other Islamic schools of jurisprudence, but also with a host of referents in the worlds of the Common Law and the Civil Law.

Keywords: mixed legal systems, mixed jurisdictions, Iran, Iranian law, property law, property endowment