Law and legal systems in the Arab Middle East: beyond binary terms of traditionalism and modernity
Dr Sara Razai, Programme Director IEDJA
This article explores the judicial role in the region from the 19th century, focusing on the impact of the Western law to the region with emphasis on the Ottoman legal reforms in the Arab region between 1839 – 1876 and the period following the Ottoman decline in the 20th century. The legal history of the Arab region spans over a millennium and any attempt to cover this in one brief article cannot capture all the historical complexities and will necessarily be limited and to a large degree, superficial. Islamic, non-Islamic, Arab and Western legal developments have been vast and have extended beyond the Arabic-speaking region. In light of this, a core purpose of this article is to provide for a more nuanced insight into the historical development of the judicial role in the Arab region.
“A large number of societies view law with indifference and many, particularly those we term primitive, consider the birth and development of law as a misadventure. In these societies, which set themselves against law, law appears with difficulty, evolves but little, and if one attempts to transfer law born and nourished elsewhere, the result is usually failure”.1
The end of the Arab Muslim Caliphates marked a new beginning for the development of the judicial role. Earlier developments had refined and developed a judicial role that was religiously legitimised, only to undergo further refinements throughout the later centuries. This time, its development would be overseen and authorised by neither ethnically nor linguistically Arab Muslim rulers:
“In the seventh century, the Arabs created a new world into which other peoples were drawn. In the nineteenth and twentieth, they were themselves drawn into a new world created in Western Europe.”2
Secular notions of law and justice from predominantly civil legal traditions made their mark on the Islamic judge. Two important periods are associated with the introduction and eventual synthesis of Islamic laws with ideas from different Western legal cultures. All of this would have a marked effect on the judicial office in Arab societies. The first period relates to the final years of the Ottoman rule (1839-1922), and the second, to the establishment of Arab independence following the British and French mandates (mid-20th century).
The Ottoman dynasty was founded in the late 13th century in north-western Anatolia. Under Selim I (1470 –1520), the Empire rapidly expanded into the Middle East. Following the seizure of the holy Islamic cities of Mecca and Medina, the Ottoman claim of caliphal authority was solidified. The Ottoman stronghold would remain, at least officially, until the Caliphate’s defeat and loss of its territories in the Middle East to the Allied Powers in the aftermath of the First World War.3
By the late 19th century, the Ottoman Empire officially controlled all of the Levant region (Lebanon, Syria, Jordan, Palestine) and Iraq. The Ottomans also claimed dominion over most of North Africa, Egypt, and the Arabian Peninsula. In practice, however, the regions enjoyed varying degrees of self-rule. The territory that now corresponds to Saudi Arabia was under the direct rule of Arab tribal leaders. Despite Ottoman claims to the entire Peninsula, the central rule was limited to strategic areas such as Hijaz, the two Islamic sanctuaries of Mecca and Medina. In the 19th century, Egypt was technically an Ottoman province but in practice enjoyed a degree of autonomy.4 Modern-day Lebanon dates back to the Ottoman Mount Lebanon Principality.5 In 1860, Mount Lebanon became part of the Ottoman province, with political institutions based on power-sharing among its various religious groups under an Ottoman-European consortium protectorate.6
The Ottomans began an unprecedented period of reforms between 1839 – 1876.7 The empire sought to reform and modernise its institutions and society in line with the prevailing cultural, legal and political dominance of Europe. Libertarian ideas of the French Revolution found a favourable milieu among educated urban Ottomans, and the empire was called on to give way to the new philosophy of the Age of Enlightenment. Between 1839 and 1876, a series of reforms were promulgated in the Ottoman empire. These reforms, called the Tanẓīmāt, were intended to modernise the empire from an old theocratic system into a modern state similar to European states.8
The Tanẓīmāt reforms would require universality and a direct contact with the Ottoman citizen without regard to religion or ethnicity. As Hanioğlu describes, the vision “was a significant first step toward the transformation of hitherto Muslim, Christian, and Jewish subjects into Ottoman”.9 To achieve this, law and legal administration required substantial reforms, especially the Sharī’ʿa dominated courts which were run by Islamic judges. Mirroring Western legal developments, Ottoman Islamic law and practice would have to move away from natural justice and to emphasise procedure, code and appellate hierarchy. The dominant judicial paradigm was legal formalism, and the Ottomans wished to introduce this to their own empire. This required replacing doctrinal interpretation, custom and, more importantly, judicial discretion with a rigid and mechanical application of a comprehensive set of laws.10 To achieve this, a series of centralised reforms were inaugurated, including the introduction of the Nizamyieh courts chiefly modeled on Napoleonic laws and judicial structures.
The Nizamyieh courts were three-tiered and covered civil, criminal and commercial disputes. The civil corpus juris, the Mejelle, was a comprehensive compendium of Islamic law and was also codified in with western structures in mind. The Mejelle was to be administered in the new civil courts and applied by judges trained in secular legal methodologies.11 Penal law, traditionally based on Islamic law (and codified in early 19th century), gave way to an adaptation of the French penal code of 1858, also applied by the new criminal courts. Sharī’ʿah and other religious courts continued to operate alongside the Nizamyieh courts, but their jurisdiction was reduced to adjudicating on endowments and personal status laws particular to each religious denomination.
Despite these centralising reforms, Ottoman suzerainty in the Arab region was implemented in a piecemeal fashion. By the start of the 19th century, Ottoman hegemony ranged from existent to non-existent in the Arab region. The Tanẓīmāt influenced some places profoundly, and others only superficially. For instance, Egypt, technically an Ottoman province, managed to acquire a degree of autonomy in the law throughout the 19th century. Even if the country generally followed Ottoman legal developments, such as the Mejelle, the pace and content of the Tanẓīmāt were largely informed by the country’s own juridical developments.12 The foreign establishment of the Egyptian Mixed Courts in the 19th century had an international dimension that went beyond the modeling of the Nizamyieh courts. Dictated by foreign powers, the Mixed Courts were a hybrid series of courts, particularly established to deal with disputes between foreigners and Egyptians. Judges sitting in the Egyptian Mixed courts had considerable experience and came from a variety of nations, including France, England, Italy, Scandinavia, and the USA, as well as Egypt. The increasing number of British and American judges serving in the Egyptian courts, especially after the British Occupation in 1882, resulted in the, albeit limited, introduction of Anglo-American common law elements which came to be a source of influence on Egyptian judicial decision-making in later years.13 Central Arabia (present-day Saudi Arabia and Yemen) and rural areas inhabited by Bedouin tribes also saw little of Ottoman legal influence. Instead, Shari’a, tribal law and custom remained in full practice, and an Islamic version of Ḥakam remained the intercessor in disputes.
Despite the varying degrees of influence of the Tanẓīmāt, the Ottoman reforms had – directly or indirectly – made an influence in the Arab region in one important respect: the Mejelle. The Ḥanafī-based Islamic law had been the official school of law throughout the centuries-long Ottoman rule, and by the late 19th century this school acquired a new status once it became codified. Legal norms were no longer valid merely because eminent Muslim jurists had developed them. In the new context, the validity of Islamic jurisprudential norms “came to depend on the fact that they were state law, legalized by state legislation.”14
Some regions, however, managed to evade this development completely. It was wholly rejected in parts of the Arabian Peninsula. Prior to the conquest of Hijaz in 1926, the judicial systems of the various ruling regimes in the Arabian Peninsula were simple and largely based on the Ḥanbalī school of Islamic law and tribal custom. On the verge of extinction, the Ḥanbalī school was revived in the 18th century with the help of a religious and political movement brought together by a tribal alliance headed by a judge, Muhammad ibn ‘Abd al-Wahhab and Muhammad ibn Sa’ud (this alliance eventually led to the creation of the Saudi Arabian Kingdom).
In the pre-modern period, Islamic judges had jurisdiction over an entire gamut of legal norms.15 Following the Ottoman caliphal claim, Islamic judicial practice would be conceptualised according to the Ottoman favoured Ḥanafī school of Islamic law for centuries. With the diminishing of Islamic law in favour of secular laws in the 19th and 20th century, the Islamic judge’s jurisdiction was reduced and replaced by those of secular Ottoman judges. The Ottoman embrace of modernism, inspired by European thought, envisioned that law and the judiciary would eventually move away from the “old” and make way for the “new”. Instead, a certain duality of legal culture ended up characterising the legal system across the region. The Western-modelled civil courts in many areas of the region came to coexist uneasily side-by-side with the traditional Islamic law courts, a phenomenon that would later imbed itself in many Arab jurisdictions.16 The dual character of religious judges and secular judges also continued to serve as a framework for, and inform the development of, the judicial role in several Arab states following their independence.
In the late 19th and early 20th century, following the fall of the Ottoman Empire, the Arab Middle East underwent critical changes that affected the region’s legal systems. Ottoman rulers were replaced by Europeans. Territories taken from the Ottomans were divided between the United Kingdom and France as per the “Asia Minor Agreement” in 1916 (also referred to as the Sykes-Picot Agreement). Although the extent of European colonial hegemony in Arab legal systems varied across the region, the imposition, adoption, and imitation of European models of legislation varied across the region. For instance, the British applied a diverse body of laws during their mandate in Iraq (1920 -1932), which was culled from Ottoman, French, and Anglo-Indian colonial laws, while tribal customary law was applied in the countryside.17 In Transjordan and Iraq, Ottoman legislation remained partly in effect. In Palestine (1922-1948), English judges applied the Mejelle and a colonial version of British law.18
‘Abd al-Razzāq al-Sanhūrī: post-colonial legal moderniser (1895–1971)
“Chimère, utopie, diront les sceptiques. Que non point. Le monde entier marche à grand pas vers cette « Union des peuples » “qui sera le salut de l’humanité.”19
‘Abd al-Razzāq al-Sanhūrī, 1926
Following the French and British mandates, new Arab nation-states renewed their efforts at modernising their respective laws and judiciaries.20 Egypt was at the forefront of this process through the work of the French-educated Egyptian jurist, ‘Abd al-Razzāq al-Sanhūrī. Al-Sanhūrī was a member of all three legislative committees charged with the revision of the Egyptian Code in 1930.21 Sanhūrī developed a deliberate reformist agenda by conceptualising Egypt’s law in a more progressive and egalitarian way. He modernised Islamic law by “applying the insights of sociological critiques of classical legal thought.”22 His scholarship was motivated by a desire to harmonise and develop the Ottoman codifications of Islamic law with modern positivist conceptions of law inspired from the West (primarily from Swiss, French, English and American laws). Islamic law and Western laws, Sanhūrī believed, were not antithetical. Rather, Islamic law had a “contemporary relevance in other than a fundamentalist or recidivistic sense.”23 According to Sanhūrī:
“Il nous paraît donc indispensable, avant qu’on puisse penser à en remettre les principes en application, de susciter une renaissance du droit islamique, en distinguant entre sa partie religieuse et sa partie temporelle. L’état actuel de civilisation exige un assouplissement continu de la dernière de ces deux parties afin que tous les citoyens, musulmans ou non, se trouvent en présence de règles de droit qui puissent leurs être également appliquées”24
Sanhūrī incorporated both Islamic and Western legal values in the1949 Egyptian Civil Code which “became the basis of a new standard of legal justice”.25 The new Code devised a unique, empowered role for Egyptian judges which expanded judicial discretion beyond the limits of classic French law.26 In his explanatory notes to the proposed Egyptian Code, Sanhūrī wrote:
“Let no one imagine that a judge who rules in accordance with a frozen basis and whose hands are shackled by a narrow text can adapt the legal provisions for just application in changing circumstances. For he will then either bring justice, but break the shackles of the law, or remain committed to the limits of the law, and bring only partial justice.”27
For Sanhūrī, the Code required flexible criteria that could anticipate future developments and change. Developing this idea, Sanhūrī wrote that the provisions of the Code became tools in the hands of the judge “so that he can develop the Code on an ongoing basis, and, with the help of these tools, meet changing circumstances and conditions.”28 For this reason, Bechor argues, the Egyptian code brought about a dual loyalty for the Egyptian judge.29 The first loyalty was owed to society that granted the judge power and authority. The second loyalty was to the Code itself, which granted the judge discretion within the designed limits.30 Where tensions between the code and society emerged, the judge was required to “adjust, weigh and balance his steps”.31
The quest for Arab (legal) unity32
In 1962, Sanhūrī wrote: “I believe that Arab unity is a natural thing as the Arab peoples are one nation; . . . the strongest support of Arab unity is cultural unity, and the most important basis for unifying culture is a unified legal culture”. Although the Egyptian Civil Code influenced several civil codes in the region33 for the next three decades, the three other countries under study were (with varying degrees) an exception.34 In Lebanon, the Mejelle was repealed under the French Mandate and replaced with the 1932 Lebanese Code. The Code was drafted by a French jurist and later revised by Lebanese jurists to reflect local legal culture (including the incorporation of some provisions of Ottoman and Islamic law).35 Jordan continued to apply the whole of the Ottoman Mejelle until 1976, when the Jordanian Code was introduced.36
Placed in this historical context, particularly from the late 19th century, countries in the Arab region responded differently to the overarching legal developments which came to shape the legal systems and set the judicial role onto distinct paths of developments in several countries. In 1962, Sanhūrī wrote that there were three types of legal experiences in the Arab region. First were states that continued with an uncodified version of the Islamic Sharī’ʿa best exemplified by Saudi Arabia and the Ḥanbalī school. Second were states under Ottoman control during the second half of the 19th century, where the Mejelle was applied and remained after the fall of the Ottoman Empire and the advent of the French and British mandates. Third were those jurisdictions which borrowed French law, such as Lebanon.37 With Sanhūrī’s own contributions, a fourth type of legal experience emerged in the region. These four different legal experiences shed some light on today’s diverse legal cultures in the region. These have also had an impact on the judicial role (illustrated in figure 3 below).
Each historical influence conceived a particular role for the Arab judge. Early Islamic-based conceptions of the judge adopted a different notion of what the judicial role should be compared to the mechanical judicial function favoured by the Ottoman Tanẓīmāt. Even Sanhūrī’s conception of the Egyptian judicial role sought to reconcile two seemingly contradictory ambitions of “socialising modern law” and “modernising Islamic law”.38
Descriptions of the evolution of law and legal systems in the Arab region tend to be described in binary terms of “modernity” and “tradition”.39 On the one hand, modernisation efforts are often the focus of scholarship which is concerned with the desire to move towards a more Westernised legal conception based on “contractual relationship between free individual wills”.40 On the other hand, a focus on “tradition” in Arab law is concerned to highlight legal systems based on kinship where the community “defines the individual”.41 Alliot for instance considered that “man is a servant of the past in traditional societies, and forges the future in Western societies”.42 But to describe the evolution of law and judiciaries in the Arab region using binary terms is factually misleading.43 Efforts at modernising judicial practice in line with Western legal influences form only one historical aspect of the region’s legal history. Similarly, looking at the role of tradition in law and judicial practice will only provide for a partial picture, in part because there is no uniform understanding of tradition across the region. What constitutes as “traditional” is contested and there are several competing values which have been established as legitimate traditional values within each Arab country as well as in the region. The present role of the Arab judge is complex and cannot be understood simply through the narrow lens of modernisation and traditionalism. This brief historical review reveals a complex interaction of competing notions of law and judicial practice in the region. The Islamic judge would eventually be replaced with the secular Ottoman judge, only to be later replaced with Sanhūrī’s conception of the judicial role. It is in this context that the present-day Arab judge operates.
1 Norbert Rouland, Legal Anthropology (Athlone Press 1994) p.293
2 Hourani, A. (1992), A history of the Arab peoples. London: Faber and Faber, p. 249.
3 The conquered Middle Eastern territories were divided between the United Kingdom and France under the “Asia Minor Agreement” in 1916, also referred to as the Sykes-Picot Agreement.
4 Jasmine Moussa, Competing Fundamentalisms and Egyptian Women’s Family Rights: International Law and the Reform of Sharī’ʿa-Derived Legislation (Brill 2011), p.120
5 Zahar writes: “The principality’s autonomy was premised on subservience to its Ottoman masters; the Emir (prince) was required to maintain social order and deliver required taxes and other obligations to the Sultan in Constantinople”. See Roeder PG and Rothchild, DS (eds), Sustainable Peace: Power and Democracy after Civil Wars (Cornell University Press 2005) p.219
6 Ibid. p.219
8 Ibid. Ahron Layish writes that “The “Young Ottoman” constitutional movement and the ideological struggle between the Westernist, Islamist and Turkish schools of thought of the “Young Turk” movement in the 19th century – both under the impact of the West – prepared the ground for the complete abolition of sharīʿa.” Layish A, ‘Islamic Law in the Modern World: Nationalization, Islamization, Reinstatement’ (2014) 21 Islamic Law and Society p. 278.
9 M. Şükrü Hanioğlu., A Brief History of the Late Ottoman Empire, Princeton University Press (2008) p.74
10 Avi Rubin, “Legal Borrowing and Its Impact on Ottoman Legal Culture in the Late Nineteenth Century” (2007) 22 Continuity and Change 279, p.284. See also Rubin A, Ottoman Nizamiye Courts: Law and Modernity (Palgrave Macmillan 2011)
11 The “Mejellet al Ahkam al Adilyia” was issued in 1876
12 Nathan J. Brown, “Reining in the Executive,” in Judges and Political Reform in Egypt, ed. Nathalie Bernard-Maugiron (Cairo: The American University in Cairo Press, 2008) p.27-32
13 Hamad., M. When the Gavel Speaks: Judicial Politics in Modern Egypt, Ph.D., Department of Political Science, University of Utah, (2008) Introduction chapter.
14 Masud, M., Peters, R. and Powers, D. (2012). Dispensing justice in Islam. Leiden: Brill., p.171
15 “Qadi (Kadi, Kazi).” Encyclopedia of Islam and the Muslim World. Retrieved August 30, 2018 from Encyclopedia.com: http://www.encyclopedia.com/religion/encyclopedias-almanacs-transcripts-and-maps/qadi-kadi-kazi
16 M Şükrü Hanioğlu, A Brief History of the Late Ottoman Empire (Princeton University Press 2008). p.105.
17 Ibid. p.79
19 ‘Abd al-Razzāq al-Sanhūrī (Sanhoury), Le Califat (Librairie Orientaliste Paul Geuthner 1926)., p.607
20 In addition to the British and French colonies, Italy colonised modern-day Libya (taken by the Ottomans in 1912), and it remained Italian until it was replaced by French and British occupation until Libya’s independence in 1951. In relation to judicial practice and the legal system, the Italians had a minor influence. Libya is not one of the main countries that form the focus of this study.
21 Together with Edouard. Lambert, a French scholar in comparative law, as the only other member of the third committee formed in 1938, proposed a completed draft of the new code for discussion in 1942. Eventually, the proposed became the blueprint for Egypt’s new Civil Code of 1949. al-Qanun al-Madani: Majmutat al-A’mal al-Tahhdriyya (Cairo: Ministry of Justice, n.d-).
22 Nimer Sultany, Law and Revolution: Legitimacy and Constitutionalism after the Arab Spring (First edition, Oxford University Press 2017)., p.22
23 Hill, E. (1988). “Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ‘Abd al-Razzaq Ahmad Sanhūrī, Egyptian Jurist and Scholar”, 1895-1971. Arab Law Quarterly, 3(1) p.38
24 ‘Abd al-Razzaq al Sanhuri (Sanhoury), Le Califat (Librairie Orientaliste Paul Geuthner 1926).p.571
25 Majid Khadduri, The Islamic Conception of Justice (Johns Hopkins University Press) p.207
26 Ibid. p.296.
27 Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) (Brill 2007).p.209; ‘Abd al-Razzāq al-Sanhūrī ‘Al-Wasīt fi Sharḥ al-qānūn al-Madanī’ (Cairo: Dār al-Nahda al- ʿArabiyya, 1988), volume 1, p. 104.
28 Ibid. p.293
30 Ibid. p.160-161
31 Ibid. p.293
32 al-Sanhūrī “al-Qanun al-madani al-‘Arabi” (“The Arab Civil Code”), al-Qada’ (Baghdad) 20(1) (1962), p. 7. Translation provided by Hill, E. (1988), “Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ‘Abd al-Razzaq Ahmad Sanhūrī, Egyptian Jurist and Scholar”, 1895-1971. Arab Law Quarterly, 3(1) [part II] 207, (Sanhūrī, (1952), p.207
33 Arabi describes Sanhūrī’ as “the principal architecht of the present Civil Codes of Egypt, Iraq and Syria: “As a major figure of the intersection of traditional Islamic culture with modernity, al-Sanhuri has left an indelible mark on contemporary Arab societies. Besides his pioneering work in lawmaking and codification and its far-reaching consequences, al- Sanhūrī’s colossal efforts extended to the critical explication and justification of legal precepts, resulting in decisive contributions to modernist Arab and Islamic jurisprudence.” Oussama Arabi , Al-Sanhuri’s reconstruction of the Islamic law of contract defects Journal of Islamic Studies 6:2 (1995) p. 154. See also Amr Shalakany, Sanhuri and the Historical Origins of Comparative Law in the Arab World (Or How Sometimes Losing Your Asalah Can be Good for You), in Rethinking the Masters of Comparative Law 152 (Annelise Riles ed., 2001).
34 For example, Sanhūrī began working on the Syrian Civil code in 1946 which was enacted in 1949, In 1943 Sanhūrī completed his draft for a revision of the Iraqi Civil Code which was enacted in 1951. According to Stigall, In the case of the Libyan and Syrian Civil Codes were directly drawn from Sanhūrī’s work and the codes echoe’s “of Sanhūrī and each contains much of the substance and structure that are the hallmarks a Sanhūrī code.” See Dan E. Stigall, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post–Revolution Viability in the Aftermath of the Arab Spring, 28 Emory Int’l Rev. 283 (2014)
35 Chibli Mallat, ‘The Lebanese Legal System’<http://rocket.asoshared.com/~mallatco/sites/default/files/The%20Lebanese%20Legal%20System.pdf> Last accessed 1 November 2017
36 Saleh, N., (1993), “Civil Codes of the Arab Countries: The Sanhūrī Codes”. Arab Law Quarterly, 8(2), p.164
37 ‘Abd al-Razzāq al-Sanhūrī “al-Qanun al-madani al-‘Arabi” (“The Arab Civil Code”), al-Qada’ (Baghdad) 20(1) (1962), p.8-10; Hill, E. (1988), “Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ‘Abd al-Razzaq Ahmad Sanhūrī, Egyptian Jurist and Scholar”, 1895-1971. Arab Law Quarterly, 3(1)[ part II] 207, (Sanhūrī, (1952), p.207-208.
38 Nimer Sultany, Law and Revolution: Legitimacy and Constitutionalism after the Arab Spring (First edition, Oxford University Press 2017)., p. 21
39 Usually underlying this distinction is Max Weber’s binary distinction between two concepts, “traditional authority” and “rational-legal authority”. These are refuted here because they are simplistic and generalising.
40 Nimer Sultany, Law and Revolution: Legitimacy and Constitutionalism after the Arab Spring (First edition, Oxford University Press 2017) p.293.
41 Norbert Rouland, Legal Anthropology (Athlone Press 1994) p. 301.
42 For Rouland, the reconciliation between these binary concepts can only be achieved with difficulty: “The transfers of law from modern to traditional societies are unlikely to be fully accomplished without serious repercussions. When they take place willy-nilly, imposed by colonialism and taken up by newly independent states, it is at the price of an acculturation in which the state may ultimately be the loser”. Norbert Rouland, Legal Anthropology (Athlone Press 1994) p.295.
43 The tendency to view history as an “opposition between the European contractual state and Oriental despotism is no more than a scholarly fiction’. See Sultany, Law and Revolution: Legitimacy and Constitutionalism after the Arab Spring (First edition, Oxford University Press 2017) p.20.