Islamic Countries, Influence of European Private Law
1. The uncodified Islamic law
Islamic law is primarily case law, ie law that has mainly been developed by Islamic scholars on the basis of individual rulings and specific cases. The law books subsequently compiled, the fiqh works, have been complemented over the centuries by a multitude of further texts, textbooks, commentaries, monographs and legal opinions by Islamic jurists (fatāwā). These legal works were not systematically arranged according to subject matters. General legal issues were dealt with by means of single provisions. In order to solve a legal problem, those applying the law had to examine the existing material for directly relevant or comparable cases until a case pertinent to their issue was found. This task was extremely time-consuming and difficult, not only because of the multitude of fiqh works, but also because of their ponderous language. It was only at the end of the 19th century when efforts were made to summarize and codify Islamic law.
2. The first codifications in the countries of the Greater Middle East
A first attempt to codify Islamic law had been made at the end of the 8th century in early Islamic legal history. In order to ensure legal uniformity with regard to the emerging schools of law, Ibn al-Muqaffa’, the foreign minister of caliph Al-Mansur, suggested codifying Islamic law. However, this attempt foundered on the resistance of the scholars who did not want to renounce their monopoly on the interpretation and deduction of law. Only 11 centuries later, in the 19th century, were the first codifications of the law put into force in the Ottoman Empire and in Egypt. Additionally, Iran codified its private law at the beginning of the 20th century.
a) The Ottoman codifications
The Ottoman Mecelle of 1876 (turk. Mecelle-i Ahkâm-ı Adliye) is the first systematic compilation of Islamic law. The Mecelle may also be called a restatement of Islamic law. It clothes the Islamic jurisprudence in a new garment borrowed from the European legal systematics, namely a code of law. The Mecelle was part of a far-reaching reform movement in the Ottoman Empire, the tanzimat movement, in which European models were used in order to reorganize the legal system and establish legal institutions. Thus, the Ottoman Commercial Code adopted in 1850, the Penal Code of 1858, the Code of Commercial Procedure of 1861 and the Code of Maritime Commerce of 1863 are all based on the French model.
The Mecelle is mainly based on the Hanafi school of Islamic law. It regulated mainly civil law, especially contract, tort and procedural law, leaving matters of personal status (namely family and inheritance law) uncodified under the jurisdiction of the sharīca (sharia) courts. The Mecelle separated for the first time ritual law from law regulating human transactions and was applied by specially established national courts. It therefore had a visible secularizing effect. Its systematic structure is similar to European codes, as it is subdivided into books, chapters and articles. Whereas the general part is kept very brief, for lack of a general contract theory in Islamic law, detailed regulations on special contract types dominate. Although the system of the Mecelle is not consistent throughout, it made law clearer and easier to access. It is on account of its editorial style that the Mecelle met with immediate success.
In 1917, the family law of the Ottoman Empire was also codified. In contrast to the Mecelle, the Ottoman Family Code was not exclusively based on Hanafi rules, but incorporated provisions of other Sunni schools of law as well, especially the Maliki school. Moreover, it broke with two traditions: first by not being applicable to Muslims alone, but also to Christians and Jews, ie the so-called People of the Book, and secondly by assigning jurisdiction in matters of personal status to state courts. In the Ottoman Empire and later in Turkey, the Ottoman family code was only 18 months in force. In the other successor states of the Ottoman Empire, Syria, Jordan, Lebanon, Palestine and Iraq, it remained in effect until well into the mandate period or until new laws were enacted.
The tanzimat reforms thus curtailed the influence and application of Islamic law in favour of secular law. Although care was still taken to link reforms to the sharia, the process of secularization had reached numerous areas of law.
b) The Egyptian codifications
Although Egypt was nominally part of the Ottoman Empire, the Mecelle never came into force there. Rather, instead of compiling Islamic law, efforts were undertaken to adopt European law. Since the end of the 18th century, Egypt had developed into a centre of European commercial interests. This led to the emergence of consular jurisdictions. The foreign consuls were exclusively competent to hear and adjudicate all legal disputes of their nationals. Having to accommodate up to 20 competing jurisdictions, the law became more and more fragmented. At the end of the 19th century, in order to unify the law and institutionalize modern courts, two codes of law were enacted, the Code civil mixte in 1875 and the Code civil indigène in 1883. Whereas the Code civil mixte, an extract from the French Code civil, applied to legal disputes between (all) foreigners and between foreigners and Egyptians and was applied by the so-called mixed courts, the Code civil indigène, based to a large extent on the Code civil mixte and only slightly adjusted to Egyptian conditions, was applied by the national courts to legal disputes between Egyptians. These laws were in force until the enactment of the Egyptian Civil Code on 15 October 1949.
In contrast to the Ottoman Mecelle, where contract and tort law were based on Islamic law, the Egyptians followed French law very early on and adopted the French texts literally. Furthermore, the commercial, procedural and criminal provisions followed the French model as well. As with the Mecelle, matters of personal status were not included in these codification efforts and were only codified at the beginning of the 20th century in piecemeal legislation.
c) The Iranian codifications
Iran has no direct colonial history. However, since the 18th century, the United Kingdom and Russia have exerted great influence on Iranian politics. In search of a politically more honest broker, the Iranians looked towards France. The school system as well as the university education system had already been imported from France. Even today, sufficient knowledge of the French language is a precondition for the admission to doctoral studies in law at Iranian universities. In the years 1928–35, the Iranian Civil Code was adopted. It regulates all legal fields of civil law and, in contrast to the Mecelle and the Code civil mixte and indigène, also matters of personal status, ie family and inheritance law. The commission charged with drafting the bill was composed of Shiite Islamic scholars and secular Iranian jurists who had also been trained in France, Switzerland and Belgium. Although the civil laws of these countries were consulted, the legal provisions of the Iranian Civil Code are predominantly a reproduction of the Islamic Shiite provisions, particularly in the field of contract and property law. The European law penetrated the code only to a limited extent and only in certain fields, such as the law of nationality, the law of domicile or the regulations on law enforcement. In some parts, the blending of European and Islamic law becomes quite visible. Thus, the Iranian Civil Code has retained the provisions on temporary marriage, a particularity of Shiite law, and those on the divorce by repudiation, whereas the provisions on the registration of all matters of personal status bear a clear European signature. Codifications in other fields of law, as in criminal, commercial and procedural law, follow the French models as well.
3. The reception of European law
After the collapse of the Ottoman Empire following World War I and the establishment of the mandates in the Greater Middle East, there were further receptions (reception) of European law. Turkey exhibited the most radical break from its legal tradition, as it abandoned the Mecelle and thus Islamic law as a whole. The Turkish Civil Code is thus a reception of Swiss civil law including its family law. Although law reform also took place in the new Arab states, Islamic law was only overtaken in commercial and economic law, while it still applied to matters of personal status. The Mecelle initially remained in force in many countries, eg Syria, Palestine and Jordan. In the meantime, the reception of European law and the secularization of law also continued during the mandate period and especially thereafter.
The reception of European law in Islamic countries is closely linked to their colonial history. However, not all the countries adopted the legal systems of the ruling colonial power. This holds particularly true for the countries under British rule and British mandate. Apart from a few exceptions, most countries adopted the civil law tradition. The reasons for this preference are manifold: first, the relatively late British colonization of the Middle East, compared to the longer presence of the British in India/Pakistan, has to be mentioned. Besides, many states had already adopted the French school system and educational system. In Lebanon, there were, furthermore, centuries-old religious ties to Catholic France. In Egypt, French influence was prominent due to the Napoleonic conquest (1798–1801) and the later construction of the Suez Canal; the British, in contrast, came to Egypt at a time when the legal and judicial system had already been implemented. Ultimately, it was in the nature of things that codified laws were better suited as a model than the casuistic common law. Clear, all-embracing codifications were needed in order to regulate the legal systems thoroughly and, for this purpose, the continental European codes seemed to be best suited.
The exceptions were India/Pakistan, Sudan and Palestine/Israel. In India/Pakistan, the common law system was adopted very early. As early as 1772, British judges were sitting on Indian benches, assisted by Islamic jurists in matters of personal status. Thus, the dual court system existing in other Islamic states was avoided and the so-called Anglo-Muhammadan law emerged. Furthermore, the British also resorted in some fields of law to the codification of English law; thus, in 1860 a penal code, in 1872 the Contract Act and in 1882 the Transfer of Property Act were enacted.
In Sudan, as opposed to Egypt, the British barely found any legal and judicial structures on which to build. Thus, the principles of the common law system, particularly the principles of ‘justice, equity and good conscience’, were adopted and a unified judicial system was introduced.
In Palestine, the Palestine-Order-in-Council of 1922 provided for the application of the existing Ottoman laws—particularly the Mecelle and the Ottoman Family Code—and British law. In addition, the courts were ordered to apply English common law and equity by residuary power. British judges or judges trained in Great Britain filled the courts and their application of common law quickly became the norm. Appeals against their decisions could be lodged with the Judicial Committee of the Privy Council in London.
In Iraq and Jordan, which were under British mandate as well, however, the influence of the common law was much weaker. There were neither British judges nor could the common law be drawn upon as a gap filler. These countries remained mostly influenced by continental European law.
In the Maghreb States (Morocco, Tunisia, and Algeria) and other countries under French domination, like Syria and Lebanon, the influence of the French Code civil was direct and very strong. In Lebanon, the Mecelle was substituted in 1932 by the Code of Obligations and Contracts that had been drafted by French jurists and adapted to Lebanese conditions by Lebanese jurists. However, Lebanon also consulted the legal systems of other European states. Thus, in the Lebanese Code of Civil Procedure of 1935, the influence of the Austrian legislation is evident, whereas the Penal Code was inspired by the Italian Penal Codes of 1890 and 1930.
4. The codifications after World War II
By the end of World War II and with the emergence of independent Arab states, the reception of law continued. This period was particularly marked by Pan-Arabism and the idea of the Arab unity. Whereas before the focus was mainly directed on French law, now dual emphasis was being placed on rediscovering Islamic law as a common legal tradition of all Arab Muslim states and on consulting other European systems of private law. This extensive legal comparison and the endeavour to do justice to the local conditions led to the enactment of the Egyptian Civil Code in 1949 (Law no 131/1948). It was drafted under the leadership of ’Abd al-Razzaq Ahmad al-Sanhuri (1895–1971), an Egyptian professor, judge, lawyer and politician who had been a disciple of Edouard Lambert in Lyon. Sanhuri aimed to blend Islamic law and adopted provisions of European law to create a new code. Hence, the laws in force in Egypt until 1949, the judicature of the Egyptian courts as well as provisions of Islamic law and European codes were incorporated into the Egyptian Civil Code. As a result, provisions of different origin can be found in the Egyptian Civil Code. For example, one finds provisions on the Islamic institution of pre-emption (shufca) along with provisions of tort law which are a literal reproduction of French tort law, whereas the objective theory of the declaration of intention has been adopted from the German legal system.
The Egyptian Civil Code has functioned as a role model for almost all the subsequent Arab civil law codifications. This is ascribed to the common Islamic tradition and the similar social conditions in many Arab countries. So far, it has been adopted with or without modifications in more than 10 states having very different political, economic and social structures, and it has proved itself everywhere. Thus, the Egyptian model influenced the civil law codifications of Syria (Law no 84/1949), Libya (Royal Decree of 28 November 1953), Algeria (Ordonnance no 75–78 of 26 September 1975) and Somalia (Law no 37/1973) significantly. This also holds primarily true for the civil codes of Iraq (Law no 40/1951), Jordan (Law no 43/1976), Afghanistan (Law of 5 January 1977), Kuwait (Law no 67/1980), Sudan (Law no 6/1984), the United Arab Emirates (Law no 5/1985) and finally Yemen (Law no 19/1992). Sanhuri’s Egyptian Civil Code together with his extensive commentary on civil law al-wasīt fī sharh al-qānūn al-madanī al-jadīd, comprising about 12,500 pages, virtually have the rank of legal sources in the Arab states. They are consulted by the courts of Arab states in order to interpret their own legal provisions and fill legal gaps.
5. Impact of European law on contemporary economic legislation in Islamic countries
In its initial stage the reception of European law in many Islamic countries was a reception of its systematics and structure. Islamic law was meant to be presented with the methodological tools and systematic approach of European law. Later on, whereas family and succession law still remained Islamic based, European-based secular law prevailed in the field of commercial and economic law in all Islamic states, since classical Islamic law offered no solutions for many of the complex legal matters that emerged.
Even today, European private law continues to influence legislation in Islamic countries. Many modern economic, company and commercial law codifications continue to orientate themselves on Europe. In addition, the influences of international agreements are clearly discernible. Thus, the Iranian Commercial Code, which had been adopted from the French model in 1932, is currently being reformed in view of the membership of Iran in the WTO. This also holds true in the field of competition law where, for instance, the legislative activities closely follow the European models and the international agreements. Examples to be mentioned are the Tunisian Competition and Prices Act of 29 July 1991, inspired by the French Order no 86–1243 of 1 December 1986 and the Competition Rules of the EU, as well as the provision on unfair competition added to the Egyptian Commercial Code in 1991 which is similarly based on European legislation. The same applies in the field of intellectual property: the Egyptian Law on the Protection of Intellectual Property Rights of 2 June 2002 is based on the model of the French Code de la propriété intellectuelle and itself served as a model to the Jordanian legislature in 2003 for the reform of copyright law.
Charles A Hooper, The Civil Law of Palestine and Trans-Jordan, vol 1; vol 2 (1934–1936); Herbert Liebesny, ‘Stability and Change in Islamic Law’ (1967) 1 Middle EJ 16; Enid Hill, ‘Al-Sanhuri and Islamic Law’ (1988) 1 Arab LQ 33 and (1988) 2 Arab LQ 182; BA Roberson, ‘The Emergence of Modern Judiciary in the Middle East: Negotiating the Mixed Courts of Egypt’ in Chibli Mallat (ed), Islam and Public Law (1993); James ND Anderson, ‘Codification in the Muslim World’ (1996) 30 RabelsZ 241; Hilmar Krüger, ‘Das Zivilrecht der Staaten des ägyptischen Rechtskreises’ (1997) 14 Recht van de Islam 67; Sami Zubaida, Law and Power in the Islamic World (2003); Aharon Layish, ‘The Transformation of the Shari’a from Jurists’ Law to Statutory Law in the Contemporary Muslim World’ (2004) 44(1) Die Welt des Islams, International Journal for the study of modern Islam 85; Chibli Mallat, ‘From Islamic to Middle Eastern Law’ (2004) 52 Am J Comp L 209; Chibli Mallat, Introduction to Middle Eastern Law (2007).