varieties of legal systems in middle eastern countries.
Modernization of law in the Middle East has entailed converting to civil law systems (generally based directly or indirectly on the French model) and, in the process, restricting and transforming the heritage of Islamic law (shari ʿa) as set forth in juristic treatises.
Centralized legal systems, in which lawmaking is monopolized by governments of nation-states and uniform law applies throughout the national territory, are now in place throughout the Middle East, though the process remains incomplete in parts of the Arabian Peninsula. The adoption of modern legal systems has led to the marginalization or suppression of formerly vital local and customary legal systems. Modernization of legal systems has also eliminated special, extraterritorial status for members of powerful foreign communities who had succeeded in getting exemptions from the premodern legal systems of Middle Eastern countries.
The Role of Shariʿa
In its early stages, modernization of Middle Eastern law involved a large degree of Westernization, since the models for the new laws were European and the lawyers and other legal professionals who staffed the modernized legal systems were trained either in Europe or along European lines. Westernizing reforms were most often imposed from above by members of ruling elites or under the auspices of European powers. The process was initially slow and involved establishing new systems that operated alongside of—rather than replaced—the older, shariʿa -based systems. Gradually, the scope of the new legal systems widened, and the shariʿa -based system was increasingly confined (generally to matters of personal status, such as marriage, divorce, and inheritance). Over time, many states reined in the autonomy of this remnant of the shariʿa -based system, sometimes even folding its courts into the newer structures. However, only Turkey completely secularized its law.
The reaction against these trends was slow in coming. In the middle of the twentieth century, some outside of the systems of religious law and education began to complain that Middle Eastern societies were abandoning their Islamic nature. In the 1960s and 1970s, this argument took a particularly radical turn, as movements arose claiming that the failure of existing governments to implement Islamic law rendered them un-Islamic and therefore illegitimate. Although in most countries those calling for revolution in the name of defending Islamic law were a minority, the denunciation of the marginalization of the shariʿa had great resonance.
Some countries therefore worked to move their legal system in an Islamic direction, and many pledged in their constitutions to make the principles of the shariʿa a (or even the) main source of law. Yet this vague promise provoked new problems. The shariʿa as traditionally understood was not a legal code with easily identifiable rules but a broad intellectual tradition. Introducing elements of Islamic law into the legal system raised questions of what interpretation should be used and who had the authority to interpret law. Further, training in Islamic legal sciences had atrophied in some locations. The result was that secularly trained legal personnel often bore primary responsibility for applying the law. This did not stop attempts to integrate elements of the Islamic legal tradition in various fields of law. This solution has proved controversial in many societies, but only a few countries have resisted the general trend.
Political and Other Pressures on Legal Development
Besides the conflict over the role of Islamic law, three other conflicting pressures have operated over time. First, many Middle Eastern states attempted to build socialist economic systems through law in the 1950s through the 1970s. This effort often led them to use law as a means to restructure property rights (through measures like land reform and rent controls). Since the 1980s these states have faced international pressure to liberalize their economic and legal frameworks.
Second, the general political environment has deeply affected legal development, most obviously (but not exclusively) in constitutional law. Early constitutional efforts in the nineteenth century seem fairly modest in retrospect, focusing on establishing clear political structures and chains of command. Some tried but failed to constrain the authority of the ruler. In the twentieth century, constitutions became markers of sovereignty and were generally issued after independence. After midcentury, with the rise of revolutionary ideologies, Middle Eastern governments often experimented with attempts to transform the social order through the constitutional and legal order. In addition, the spread of authoritarianism made it common to construct special court systems and emergency laws to solidify existing regimes. But Middle Eastern governments have faced demands for political liberalization and enhanced guarantees for the rule of law, the independence of the judiciary, and respect for international human rights principles.
Finally, international factors have fluctuated in importance over time. Middle Eastern countries have varied in the degree to which they sought integration in the increasingly internationalized post–World War II legal environment. For example, they followed differing policies regarding submission to dispute-resolution institutions such as the International Court of Justice and international arbitration, and they also have disparate records of ratifying major international treaties. In general, however, the trend has been in favor of closer integration in the internationalized legal order.
As a result of these pressures, modernization of law—which started as a top-down reform process in the nineteenth century—had become an extremely sensitive and highly politicized topic by the beginning of the twenty-first.
British and French Influences
Leaving aside their occasional Islamic components, modern laws in the Middle East have been shaped by the same forces that led to the adoption of the civil law systems of continental Europe in almost all countries around the world. The primary, and partial, exceptions are those that were dominated by Britain. British colonization or the exercise of British mandatory or protectorate authority in the Middle East led to some transplants from the common law in areas like Aden (later part of South Yemen), Bahrain, Sudan, and Oman. Nevertheless, the common law had little long-term impact on the legal systems of many countries that fell under British rule, such as Egypt, Iraq, Jordan, and Kuwait. Thus civil law, mostly of French derivation, now predominates throughout the Middle East, and the occasional remnants of common law seem unlikely to survive. For example, in 1987 Bahrain broke from British tradition, choosing to enact a commercial code derived from Egyptian and Kuwaiti models, which were themselves French in inspiration.
The contemporary legal systems of Middle Eastern countries thus share the basic features of French law, such as relying on comprehensive and systematic statements of the law in codes as formal sources of law, maintaining a sharp distinction between public and private law and between commercial and private law, and using the inquisitorial mode of procedure in criminal cases. Characteristics of the French judicial system such as separate administrative court hierarchies and the parquet/prosecutor's office are also found. French law codes have also been influential, sometimes directly and sometimes through the intervening influence of Egyptian law (which adopted and adapted much French law). However, parts of the substantive legal provisions in Middle Eastern codes often have no counterparts in continental European law, corresponding instead to governmental policies, local custom, or Islamic principles. Various codifications of shariʿa law were enacted into law, especially in matters of personal status, and many secular codes refer to principles of Islamic law or custom as supplementary sources of law.
The Progress of Reform
Although a few states substantially reformed their legal and judicial systems in the nineteenth century, in most areas of the Middle East change did not begin in earnest until the early twentieth century. It was delayed in countries like Afghanistan, Bahrain, Kuwait, Oman, Saudi Arabia, the states comprising the United Arab Emirates, and Yemen until the middle of the twentieth century. Newer legal systems generally initially focused on constitutions, criminal law, procedural rules, and matters involving contracts and commerce. The longest-enduring control of shariʿa law was over personal status matters, although even in this area it was for the most part ultimately reformed or systemized in codes. Saudi Arabia has remained the most resistant to this trend, never having made a formal break with the preexisting Islamic system of jurists' law but instead following a steady course of supplementing juristic
treatises by gradually introducing governmental "regulations" in areas important for administration and economic development.
The Ottoman Empire began comprehensive legal reform in the mid-1800s, undertaking many codification projects, some of which remained influential long after its collapse. Modernization began with attempts to codify Islamic criminal laws in 1840 and 1851, which were followed by the adoption of two French-inspired codes, a penal code in 1858 and a penal procedure code in 1879. An Ottoman constitution was adopted in 1876 (though it was quickly suspended); it was amended and restored in 1909. Inspired by French models, a commercial code (later borrowed by Saudi Arabia in 1931) was enacted in 1850, and commercial procedure codes were enacted in 1861 and 1880. The most famous monument of the Ottoman legal modernization process was the Majalla (Mecelle), issued between 1869 and 1876. This was an attempt to develop a codified version of Islamic law by relying on principles found in treatises of jurists of the Hanafi school, the official school of law in the Ottoman domains. In addition to substantive rules on civil and commercial transactions and on procedures and evidence, the Majalla was composed of statements and general principles of law designed to guide the application and interpretation of its provisions.
After the collapse of the Ottoman Empire, the Majalla survived in some of its former territories, though most eventually turned to French-based codes, as occurred in Iraq in 1951, in Jordan in 1966,
in Kuwait in 1980, in Lebanon in 1932, in Libya in 1954, and in Syria in 1949. The substantive provisions of the Majalla still exert an influence, inspiring many provisions of the 1951 Civil Code of Iraq and the 1985 Code of Civil Transactions of the United Arab Emirates. The Ottoman Family Law of 1917 was another historical experiment with crafting a modern statute out of shariʿa rules, using the innovative technique of combining principles of family law from different Sunni schools of law.
Egypt, which during the nineteenth century became largely independent of Ottoman control, began legal reform in the mid-nineteenth century. Initially, legal reform proceeded on two tracks. For cases involving Egyptians, Ottoman models were initially used before the legal system converted to a French model in the 1880s. For cases in which a foreigner was involved, Egypt constructed Mixed Courts that were more purely French from the beginning. In 1937, however, Egypt secured international agreement for the unification of its legal system and began to draw up a new set of comprehensive codes. Much of this work was overseen by the Egyptian jurist Abd al-Razzaq al-Sanhuri (1895–1971). An expert in European and Islamic law, he played a major role in drafting the influential Egyptian Civil Code of 1948 (effective in 1949). This essentially French code, which allowed the shariʿa to be used as a supplementary source of law, provided the model for the civil codes subsequently adopted in Iraq, Jordan, Kuwait, Libya, and Syria and indirectly influenced the 1984 Sudanese Civil Transactions Act. Italian law shaped Egypt's 1937 criminal code.
As a result of long-standing French political domination of North Africa, French legal culture spread through the region. During the time that Algeria was a French colony, from 1830 to 1962, it was integrated into the French legal system. Algeria enacted new codes after independence in which French influence persisted. In 1984 it adopted a code of family law reinstating shariʿa rules and reinforcing the patriarchal structure of the family. Faced with popular pressures for legal reform, in 1989 Algeria adopted a new constitution that diluted the militant socialist character of the 1976 constitution and reflected demands both for strengthened human rights guarantees and for changes that would give the constitution a more Islamic character. In 1861 Tunisia had become the first Middle Eastern country to enact a constitution. As a French protectorate, from 1881 to 1956, Tunisia enacted in 1906 a code of obligations and contracts that combined elements of French and Islamic law, and in 1913 it adopted a penal code. After independence Tunisia amended old codes and enacted new ones, the most significant being its 1956 Personal Status Code, constituting the most progressive interpretation in Arab law of Islamic legal requirements in the area of family law. Morocco, a French protectorate from 1912 to 1956, enacted in 1913 its Code of Obligations and Contracts, which was similar to the 1906 Tunisian code. Morocco enacted some French-inspired codes after independence, but it retained many rules of traditional shariʿa law in its 1958 Personal Status Code and incorporated aspects of Islamic criminal law in provisions of its 1962 Penal Code.
Distinctive Paths of Legal Development
Some Middle Eastern countries followed distinctive paths of legal development. For example, Iran adopted a constitution in 1906 and 1907. An Iranian Civil Code was enacted in the period from 1927 to 1937 that combined elements of Twelver Shiʿi law with French and Swiss law. French law provided the models for other codifications undertaken by Iran in the 1930s. The progressive Iranian Family Protection Act of 1967, amended in 1975, was abrogated after the Islamic revolution of 1978–1979. Since the revolution, Iran has officially endorsed Islamization, adopting a constitution in 1979 that placed an Islamic jurist at the apex of the scheme of government and established Islamic principles as the supreme law of the land. Westernized legal professionals and Western-style legal training were replaced; Shiʿa clerics and Shiʿi jurisprudence were given a preeminent role in the legal system. However, there was no return to the old system of jurists' law: Iran's parliament retained its lawmaking authority, and French legal influences were not obliterated.
Turkey was reconstituted in 1921 as a nation-state after the collapse of the Ottoman Empire. Under Kemal Atatürk (1881–1938), the military leader who became the first president, Turkey pursued a program of complete secularization of law, which led to the abandonment of Islamic law even in personal status matters. In 1928 Islam lost its status as the state religion. Turkey imported European codes in the 1920s that were variously taken from German, Italian, and Swiss sources. The Turkish constitutions of 1921, 1924, 1961, and 1982 have differed in many respects, but Turkey's governments have continued to uphold the principle of secularism.
Israel emerged in 1948 as a Jewish state with a legal system in which there coexisted elements deriving from the Ottoman law of prepartition Palestine, Jewish law, and Western law, the latter being an unusual hybrid of common law and civil law elements. As with almost all other Middle Eastern countries, however, personal status law retains a religious basis.
Upon achieving independence in 1951, Libya largely divested itself of Italian law, which had been imposed after it was colonized by Italy in 1912. Egyptian influences on the new legal system were initially strong, but after the 1969 revolution Libya pursued a separate course of radical legal changes that were dictated by the theories of its leader, Muammar al-Qaddafi.
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ann e. mayer
updated by nathan j. brown