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The Legal System of Morocco

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The Legal System of Morocco August 2020 The Legal System of Morocco An Overview Leila Hanafi The history of Morocco shows a divide between the rigid and enforceable nature of the French civil code and the traditional Amazigh informal justice system as well as Sharia law that focuses more on custom than strict adherence to text. Thus, there is a strong basis for access to justice and the legal system generally, but with room to follow a less legally principled path. This overview further considers the way these primary influences coexist in the context of legal pluralism. Konrad-Adenauer-Stiftung e. V. The Legal System of Morocco – An Overview August 2020 2 I. Historical Influences The first known inhabitants of Morocco were Amazighs and other tribal groups. Their legal structure was 1 defined by informal systems based primarily on Islamic and non-Islamic customary law.0F Initially, most Amazighs were Christian, but through encounters with Arabs, beginning in the 7th century, many converted to Islam and thus their informal legal systems became increasingly informed by Islamic 2 teachings.1F Despite embracing Islam, however, the Amazighs followed a unique brand of Islamic Shi’ism, 3 incorporating their own cultural differences.2F The Amazigh culture is distinguished from other Moroccans primarily through language, which leads many children to drop out of school because they are taught in 4 a ‘foreign’ language, Arabic.3F Approximately two-thirds of the Amazigh population in Morocco live in rural 5 regions, where the culture remains the strongest.4F The Amazigh political system is centred on tribes and 6 7 family.5F Families remain close together and patriarchy is strong.6F Each tribe has a chieftain and communities often have Sharifs, families who claim descent from the prophet, who are afforded 8 significant respect in mediation of matters.7F The rejection of formal education based on language barriers, and the value of traditional authority figures lead modern day Amazigh communities, particularly in rural areas, to be most affected by IJS as defined by the original Amazigh inhabitants. The other major influence in Morocco, outside of the Arabic- th 9 Islamic majority, comes from European colonialists from the 15 century onward.8F The Portuguese, 10 Spanish, and French all had a stake in Morocco at some point.9F In the early 1900s, Morocco was primarily divided between Spain and France, with the central area dominated primarily by the French, while the 11 North and South had more Spanish influence.10F Britain recognised the French sphere of influence and, 1 Hoffman, K.E. (2010). Berber Law by French Means: Customary Courts in the Moroccan Hinterlands, 1930-1956, Comparative Studies in Society and History 52(4), 851-880. 2 Earth Cultures (2010). The Berber People [Online]. Available from: http://www.earth- cultures.com/destinations/morocco/Berber-of-morocco 3 Abd al-Salam, Y. (2015). Shia’ism in Morocco. [Online]. Imam Reza Network. [Online]. Available from: http://www.imamreza.net/eng/imamreza.php?id=6618 4 Weitzman, B. (2006). Ethni-politics and Globalisation in North Africa: The Berber Culture Movement, The Journal of North African Studies 11(1). 5 The Culture and Arts of Morocco and the Berbers, supra. 6 Buskens, L. (2003). supra. 7 Id. 8 Id. 9 Id. 10 Id. 11 Brignon, J. (1967). History of Morocco. [Histoire du Maroc]. Hatier: Casablanca, Librairie nationale. Konrad-Adenauer-Stiftung e. V. The Legal System of Morocco – An Overview August 2020 3 12 by 1912, Morocco was declared a French protectorate.11F It was, thus, legally controlled and protected by 13 France12F until it acquired its independence from France in 1956; the remaining Spanish colonialists 14 withdrew at approximately the same time as their French counterparts.13F The primacy of French control is evident through the continued prevalence of the French language throughout Morocco, particularly in higher education, and the Moroccan legal system’s adoption of 15 several principles of the French civil code.14F The civil code focuses on clearly defining legal obligations 16 instead of relying on case law precedent.15F It codifies the legal rights and obligations of citizens and laws 17 of property, inheritance, and civil procedure.16F The French influence presses for secular government, 18 particularly in the judiciary.17F Morocco has established civil, criminal, and commercial codes, as well as outlining procedure for such cases. 19 Although the Family Code is likewise codified in a format not unlike the civil code, it finds its source more readily in religious teachings. 20 The Moudawana is also distinguished from this general practice of the civil code because it does not apply universally among Moroccans; Christian and Jewish citizens are not held to the same Islam-based law that applies to Muslim citizens. 21 True to its French civil code roots, Moroccan case law does not have binding precedent, but can serve as 22 persuasive rhetoric. 21F The final and preeminent source of the Moroccan legal system is Islamic law. Despite its history of 23 tolerance and diversity, modern day Morocco is rather homogenous.22F Ninety-nine per cent of the 24 population is Muslim, and of them, virtually all are Sunnis, less than 0.1 per cent is Shi’a Muslims.23F The 25 th other one per cent is Christian, Baha’i, and Jewish.24F Muslims have been present in Morocco since the 7 26 century, when soldiers of the Prophet Mohammed spread throughout North Africa.25F In 1961, Islam was declared the official state religion, but maintained the full religious freedom accorded to Christians and 27 Jews.26F 12 Id. 13 Hoffman, K.E., supra. 14 Hursh, J. (2012). supra. 15 Id. 16 Ministry of Justice and Liberties, Morocco (2013). Direction de Legislation. Code de Procedure Civile (Version consolidée en date du 6 Juin 2013). Dahir portant loi n° 1-74-447 (28 Septembre 1974) [Online] Available from: http://adala.justice.gov.ma/production/legislation/fr/Nouveautes/codecivil.pdf. 17 Id. 18 Hashas, M. (2013). Moroccan Exceptionalism Examined: Constitutional Insights Pre- and Post-2011, IAI Working Papers, 1-18, Instituto Affari Internazionali. 19 The World Bank, Legal Vice Presidency (2003). Morocco Legal and Judicial Sector Assessment [Online]. Available from: http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/MoroccoSA.pdf . 20 Id. 21 UNICEF (2011). Morocco MENA Gender Equality Program [Online]. Available from: http://www.unicef.org/gender/files/Morroco-Gender-Eqaulity-Profile-2011.pdf 22 The World Bank, Legal Vice Presidency (2003). supra. 23 Miller, S.G. (2013). A History of Modern Morocco. Cambridge University Press. 24 Id. 25 Id. 26 Id. 27 Id. Konrad-Adenauer-Stiftung e. V. The Legal System of Morocco – An Overview August 2020 4 28 Moroccan law is based on Sharia law as rooted in the legal system of Sunni Islam.27F Sunni Muslims regard themselves as the more traditional and orthodox branch of Islam. The name Sunni comes from Ahl al- 29 Sunna, meaning people of the tradition.28F The two branches were divided over who should succeed Mohammed as leader of the Muslim community: Sunnis believed the successor should be one who had attained seniority, demonstrated piety, and had adequate qualifications, whereas Shi’ites believed it 30 should pass to his descendants.29F Sunni Muslims also differ from Shi’ites because they do not exalt 31 leaders the way they do prophets and, thus, have a less elaborate and rigid religious hierarchy.30F There are four schools of Sunni teachings; Morocco law follows the teachings of the Maliki school of thought. 32 31F Under the Maliki teachings, legal decisions are based more on community practice, traditions, and 33 analogous reasoning than strict adherence to hadith – the sayings of the Prophet and his companions.32F Sharia law is assured through the constitutional provisions naming the King as Commander of the 34 35 Faithful,33F tasked with ensuring respect for Islam throughout the legal system.34F Where civil law governs contracts, commercial law, administrative law, civil procedure, and criminal law; Sharia law applies to 36 family law, succession, and personal status.35F Islamic law is pronounced in first instance courts by Taoutiq 37 judges with assistance from traditional clerks, Adouls. 36F II. Legal Pluralism in Morocco There are at least two segments of legal and judicial life that coexist in Morocco: codified laws and regulations – along with an informal justice system of dispute resolution based on customs (urf). The two systems are considered to be conflicting; attempts to integrate both orders in the same centralised political system, from the pre-protectorate era to post-independence, failed due to the exclusion of 38 informal justice operators in the integration process.37F Legal pluralism provides a more inclusive conception of access to justice where the use of the two segments is divided, as is the case in Morocco. Several studies have highlighted the relevance of the existence of urf and the growing field of informal justice for the development and evolution of the Moroccan legal system. Informal justice is a means of dispute resolution that falls outside the court system. Generally, IJS differ from formal mechanisms because they take a more holistic view of the interests and positions of the parties, as opposed to addressing only those claims that arise under law. The role of the fact-finder tends to be more mediation- driven rather than making a ruling, and they rely more heavily on social and cultural norms and 28 Newman, J., 2013. Between Feminism and Islam: Human Rights and Sharia Law in Morocco (review). Journal of Middle East Women’s Studies, 9(1), 130-133. 29 Id. 30 Id. 31 Id. 32 Messaoudi, L. (1995). Greatness and Limitations of Islamic Law in Morocco. [Grandeurs et limites du droit musulman au Maroc.
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