Al-Sanhuri and Islamic

Al-Sanhuri and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of 'Abd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, 1895-1971 [Part II] Author(s): Enid Hill Source: Arab Law Quarterly, Vol. 3, No. 2 (May, 1988), pp. 182-218 Published by: BRILL Stable URL: http://www.jstor.org/stable/3381872 . Accessed: 19/09/2013 09:50

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This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW

The Place and Significanceof IslamicLaw in the Life and Workof Abd al- RazzagAhmad al-Sanhuri Egyptian Jurist and Scholar18991971*t EnidHill:

VII. THE NEW EGYPTIAN CIVIL CODE

I)rafting,Opposition and Consensus

A committee to revisethe EgyptianCivil Code was formedin March1936, and al- Sanhuriwas appointedto it. The ostensiblereason for establishingthe committeewas recognitionof the necessityof unifying and accordinglyrevising- the two existing civil codesin anticipationof the end of the MixedCourts in 1949and theirabsorption into one nationalcourt syseem. This committeewas, however,disbanded after three monthsfor reasonsthat were "not entirelyclear", after it had adoptedthe few pre- liminaryprinciples that formed the first four articlesof the code (Ziadeh)(1968), pp. 137>141). A secondcommittee was formedin November1936 which set out rulesgoverning guaranteesand shufa (pre-emption).This committeewas also dissolved- in May 1938 beforefinishing its work. A thirdcommittee was formedin late 1938,limited to al-Sanhuriand Lambert,whom al-Sanhuri had brought into the projectpursuant to the opinion of the Ministryof Justice that the codificationwould "best be accom- plishedby two individuals>'in its first stages. An accountof the work of the com- mitteeis contailledin a seven-volumepublication of the Ministryof Justice:al-Qanun al-madani:Majmu'at al-'mal al-tahdiriya, (n.d.-probably 1949)pp. 5-9 and passim (See Ziadeh,p. 141). On 24 April 1942the completionof the draftwas publicly announced by al-Sanhuri at a lecturegiven underthe auspicesof the RoyalGeographic Society where he summarisedthe work on the Code and opened the matterfor public discussion(al- Sanhuri,1942)* The draftcode, he said, had been constructedusing comparisonsof morethan 20 moderncodesn the jurisprudenceof the Egyptiancourts) and the Islamic Sharina(Ziadeh, (1968)) p. 142)* The draftcode was to be open for commentfor threeyears. In 1945a committeeof five headedby al-Sanhuristudied the commentsand proposals, made some revisions, andprepared a draftfor submissionto the legislature.A specialSenate comrnittee was createdto study the draftcode (p. 143).

* Copyright( 1987The AmericanUniversity in CairoPress and reprintedhere by permissionof the publisher.From Csiro Papers in Social Science, Volume 10, Monograph1, Spring1987 t The firstpart of this articleappeared in [1988]ALQ 33. t This study would nol have been possibIewithout the variousforms of help and encouragementI receivedfrom many people.

182

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On 30 May 1948the Senatecommittee began a specialsession and invited members of the Egyptiancourts, the Bar Association,and membersof the law facultyof Cairo University.Reports say that al-Sanhuriwas "single-minded"in defendinghis code and counteringopposition, in the courseof whichhe "demonstrateda trulyphenome- nal knowledge of both the Shan'a and comparativejurisprudence", and that the oppositionin the Senatewas "ephemeral"(p. 144). Ephemeralor not, "the question of the utilisationof the Shari'a . . . occupied a sizeablepart of the committee'stime" (p. 145). A specialissue of al-Muhamah(the journalof the Egyptianbar Association)in March1948, containing"a bitterattack" on the proposedcode, had been circulatedamong the membersof the Senatecom- mittee. The journal'scriticisms were endorsed by membersof the Courtof Cassation, includingHasan al-Hudaybi (who laterbecame head of the MuslimBrethren following Hasanal-Banna's death) and one, MuhammadSadiq Fahmi, who had beeninstru- mentalin formingthe oppositiongroup of mainlyAzhari professors and in circulating the journalamong the Senatecommittee members. He was also chief spokesmanfor the oppositionin the committeehearings. Ziadeh has summarisedthe attackof this groupon the draftcode: On the one hand, it was maintained that the old code, which, with some exceptions, had been based on French law, was in need only of some modificaiion here and there, and that it was only right and proper to preserve the "legal culture" already occurring to Egypt. On the other hand, it was maintained that should a complete recodification be allowed, such recodification should be based on the Shari'a.(p. 143)

"The chargesseem inconsistent",comments Ziadeh, and explainsthis inconsistency by the fact that the oppositiongroup was composedboth of secularlawyers trained in the Frenchlegal traditionand professorsof Islamiclaw at al-Azhar. One gets a sense here, however,that thereis more than meets the eye. As will be referredto in partIX, al-Sanhuricertainly had political enemies, especially among the WafdParty. It was not to be the last time thata modusvivendi for oppositionwas to be forgedbetween Wafdist politicians and membersof the MuslimBrotherhood. What is moreinteresting, however, is the contentioncontained in this statementof opposition that when and if a recodificationtook place it should be one based on the Shari'a, while a caveatwas addedby al-Hudaybithat "all legislationshould be based on the Koran"(p. 143). The call for recodificationto be "basedon the Shari'a",as well as al-Hudaybi's reservation,is a demonstrationpar excellenceof the basic differencebetween al- Sanhuri'sapproach to an islamicisationof Egyptianlaw and that of the Islamicmove- ments. The differenceis not superficial.However much the exigenciesof politicsmay bring togetherthose of a basicallysecular orietltation with the proponentsof religious revival, there cannot, it appears,be an acceptanceon the part of the latter of any approachto the revivalof Islamiclaw not basedfull-square within religion. Al-Sanhuri'sapproach was clear. The versionof his call to revisethe Codeprinted in Frenchis almostidentical with the earlierprescription in Le Califatas concernsthe way scholarlyand scientificwork should precederenovation of law in Arab Islamic states:

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions 184 ARABLAW QUARTERLY . energy of the rules of Islarriiclaw) must be . . Thepoint of departure (to restore the original law from the temporal part. The religious part, theseparation of the religous part of Muslim the monopoly of the Muslim theologians. whichwe avoid in our examination, should remain (al-Sanhuri,(1938b), p. 623). to expresshis distinction TheArabic version, however, uses a differentphraseology meaningwith whicha Western betmreenthe religous and the secular(or temporalWa reproducedbelow, since how al- audiencehas no trouble. The Arabicversion is of the Arabiclanguage is instructive Sanhuriphrased his secularismwithin the idioms inthe contextof whathas been discussedabove. it solid scientific renovation, in order to rescue Wedo not deny that the Shari'ais in need of with the limitations to which the latter-day fromintellectual stagnation and allow it to break urlstswere tled. be based on a study of the Shan'aaccording We proposed in LeCalifal that this undertaking sludy is based on the distinction scientific method of cornparativelaw. This new tothe new the latter that it our legal (qanuniyya)rules; it is not the former but betweenreligious rules and juris- between a rule which associates religion with Islamic concernhere. We make a distinction a respected in the heart, and a rule resting on prudence,and which depends on faith and is that comes within the purview of our s<:ientific foundationof pure legal logic. It is the latter invesligations. (al-Sanhuri, ( 1936d), p. 1 13). have been more methodological The issue for the opposition,however, seems to of the Senatedebate. In the substantive,as was demonstratedduring the course than of oppositionreferred to sameissue of al-Muhamahthat containedthe statement be basedon the Shan'a, "to show above,was a "samplelaw of contract"alleged to howit could be done". derived from the Shannsand insisted that had Al-Sanhurireviewed the provisions that had been gladly done so. He then took up the sample draft itbeen possible to derive more, he would have group and demonstrated, principle by principle, ofthe law of contracts prepared by the Fahnii be based on the Shari'ait was in point of fact based that,although the sample draft purported to "that the provisions in the Sadiq sarnple on modern codes. "If it were true," he declared, draft code were Shan'a rules, then we would draft which agree with the provisions of the the provisions of the draft code itselfn'(Ziadeh, havebeen justified in clainiing Shari'aorigin for publicaiion, pp. 88-93). (1968), pp. 145-146, from Ministry of Jusiice al-Sanhuriand the tourde force Withoutwishing to detractfrom this performanceof unintendedhappens when the thatit undoubtedlywas, it wouldseem that something its substantiveidentity would seem Shari'sis put into an alienformat. Something of thatis, thereis an al-Sanhurito to mergewith the alienmethodology of form unless, underlyingthe legal rules and providethe theoreticalexposition as to the principles theirgenealogy. of the oppositionand in the In any case, al-Sanhuri'sperformance drew the teeth as to whetherthe Shari'ahad Senatechamber "only one deputyraised the question enthusiasticallyreceived". On 15 been sufficientlyutilised", and the "draftlaw was to an end, al-Sanhuri'srevised October1949, the day when the MixedCourts came code becamethe law of Egypt(Ziadeh, p. 146).

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VIII. IS THE REVISED CIVIL CODE ISLAMIC?

Assessments of Scholars and Critics The issue of basingEgypt's laws on the Shari'ais an old one. QadriPasha, as earlier noted, did his condificationsof Islamiclaw in the 1870sin anticipationof theiruse as the law of new nationalcourts established in 1883. The Egyptianrulers of that time, however,opted to preparea code based on the Code Napoleonalthough it appears thatmore of QadriPasha's code was includedthan is usuallyrealised (supra, part VI). When the projectof the revisionof the code was first in the air in the mid-1930s calls were again raised for the codificationof the Shan'a (see Ziadeh, pp. 20, 13S139). The MuslimBrethren, in particular,since their founding in 1928(and until their abolitionas a party in 1954), continuouslyhad as a prominentgoal that the Shari'abecome the law of Egypt (p. 137; see also Harris(1964), chapterIV). And there continueto be calls today to make the laws Islamic.Draft codes, purportedly basedon the Shan'a,were prepared by a cornmissionset up in 1978,but no definitive actionon them has been taken. It wouldappear that concern with makingthe laws of EgyptIslamic, or "moreIslamic", is endemic. The issue of islamicisationof law is, perhaps,pre-eminently an issueof nationalism, at leaston one level. Whereasal-Sanhuri was certainly himself a nationalist,worked in variousnationalist causes (see partIX), andwas consciousof his workon the revision of the code as a contributionto Egyptian,as well as Arab,nationalism (see partXII), on the popularlevel the law must be recognisablyIslamic. If the Shan'arules become embeddedin the modern,abstract language of codes so that they lose their identity except to the legal-lyerudite, islamicisationhas not, for all practicalpurposes, taken place. The verdicton the popularand fundamentalistlevel as to whetheral-Sanhuri's civil code is Islamic-or sufficientlyso-must clearlybe in the negative. For legal scholars,al-Sanhuri's claim that: We adoptedfrom the Shari'aall that we could adopt, havingregard to sound principlesof modernlegislation; and we did not fall shortin this respect(Anderson, (1954), p. 30 quoiing Ministryof Justicep. 85) was, of course, taken seriously,and the new code was examinedin termsof what its debt to the Shan'apurported to be. However,just as certainstandards and expec- tationsof his criticswere evident at the time of the debateon the revisedcode, so also are other kinds of standardsand preconceptionsoperating among those who view al- Sanhuri'swork throughWestern eyes. The main commentaryin English on the new Egyptiancivil code remainsthat of JND Anderson(1954) where "the debt to the Shan'aof the civil code" is categorised as being of fourkinds: (1) The Shari'ais "one of the sourcesfrom which an appropriaterule or principle may be derivedby the courts in defaultof any relevantprovision" in the code or custom('ury) (as providedin Art. 1 of the Code); (2) The Shari'a"irifluenced the choice"between "certain concepts on whichEuro- peancodes aredivided" (e.g., objectivityas opposedto subjectivityin obligations);

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(3) "A few principlesor provisions"were "newly borrowedfrom the Shari'a, whetherexclusively, chiefly, or in part"; (4) There were "principlesor provisionstaken over by the previouslegislation fromthe Shan'ain wholeor in partand preserved . . . in theiroriginal or amended fonn". (Anderson,(1954), p. 31) Andersonquotes (as does also Ziadeh, p. 144) the remarkmade by al-Sanhuri before ffie Senatecommittee in 1948 that "threequarters or five-sixthsof the pro- visionsof this law are basedon the decisionsof the Egyptiancourts and on existing legislaiion"(Anderson p. 30, quotingfrom the Ministryof Jusiicep. 70). Although the contextof this remarkwas the refutationof a criticismthat the multiplicityof foreignsources would cause prob}ems in referringto the historicalsources in orderto solvea legalproblem, it wouldappear to indicate andthis is the senseof Anderson's use of the quotation- that "thedebt to the Shan'aof the new civilcode" was small.A recentlyexpressed view in Egyptby a legalscholar is alsothat the rulestaken from the Shari'awere "of limitedscope . . . and manyof thesehad beenin the old code>>(A1- bishri,(1985), p. 629). Al-Sanhurihimself, writing some twentyyears later, says that "the new code con- tinues to be representativeof Westerncivil culture,not Islamiclegal culture"(al- Sanhuri,(1962), p. 12).His viewwas that Egypt's Western-based civil law had become partof thecountry's legal culture and therefore ';a sudden return (to Islamiclaw) would havebeen difficultand wouldhave caused disturbances and confusion" (p. 13). If the new code had not becomecomprehensively Islamic it had, however,become Egyptianised- not only in the extensivereferencing of "the jurisprudenceof the Egyptiancourts" but also in the methodof codificationitself. The rulesincorporated fromforeign codes had beeneclectically chosen on the basisof al-Sanhuri'sanalysis of theirsuitability to Egyptianconditions and his notionof justicedistilled from his com- paraiivestudies, includingthe Shan'a,and, one can presume,his own legal and judicialpractice in Egypt.As he told the Senatecommittee, the legalrules taken from foreigncodes "have an existenceindependent of the sourcesfrom which they are taken' (Ziadeh,p. 144, quotingMinistry of Justicepp. 7W71).Moreover some of therulgs of foreignorigin taken from the old code had alreadybeen filteredthrough theEgyptian environment in theirapplication by Egypt's tO . judges . . controversies . aris- lilg Wlt lln t ;leenvlronment. Egyptianisation,however, is itself not withouta connectionto Islamiclaw. In his callfor the revisionof codes at the time of mountingefforts in the countryto achieve nationalindependence, al-Sanhuri had said: It is incumbent on us first and foremost to Egypiianize the jurisprudenceand make it complete- ly Egypiian . . . and in this . . . the Islamic Shan'ais before us . . . since it is the most itIlport- ant element in the intellectual development growing in our land; . . . and this heritage can be a meansof breathing the spirit of independence into our jurists and legislators. (quoted in al- Bishri)p. 628)

Al-Sanhurihad repeatedlyemphasised that law was "a living thing" continuously "growingand taldngnourishment from its environment".Judicial interpretation of lawis certainlyone way of makingadjustments in law to its environment both to

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 187 changingsocial and economicconditions as well as being a way of country'scustoms and incorporatinga traditionsinto its formalisedlaw. Al-Sanhuri'sfirst work (1925) had been an scholarly investigationof how legal evolutionhad occurredin an area of English judge-made law. . . Concerning . al-Sanhuri'suse of cleclslons: Egyptian judicial By taking account of the decisions of the Egyphan courts and opinions of the jurists, al-Sanhuri represented the environment of transactions in real life, so that legal rule could come from the marunersof the people, their way of life, and their modes of interaciion. (al-Bishri, p. 629) Egypt certainlyhas deep roots in her Islamicpast, includingthe legal relationsof thatcivilisation. Thus, to the extent to whichEgypt's judges took accountof the legal andsocial relationsembedded in the culture,parts of that legal traditionwould have been preserved.But it must also be rememberedthat, for much of the time since 1876, Egypt's legal historyhad includedforeign judges applying essentially foreign lawin mixed courts, and al-Sanhuri was as awareof this as anyone.Nonetheless, it is undeniablethat he viewed the jurisprudenceof the Egyptiarlcourts as centrally importantto the revisionof the code. Certainly,theoretically, the use of these Egyp- tiandecisions could have servedas a conduitof legal customsand traditions,Islamic orotherwise, into the codifiedlaw. The validationof this propositionmust, however, awaita detailedexamination of the contextand contentof the courtdecisions cited by al-Sanhuriin his commentarieson the new code. Nonetheless,the "debtto the Shan'a" thatAnderson cites as beingin explicitform isnot inconsiderable.Briefly summarised it is: Principlesorprovisions taken from the previous legislation,which concern: the disposiiion of death propertyduring sickness; ghubn(lesion inadequacy of price or other defect in a purchase); riskin purchasing; planting or building on leased land; ownership of different stories in samebuilding or a party wall; shufa the (pre-emption rights); gifts; the principle of no untilafter payment of debts. inheritance Provisions"newly borrowed"from theShari'a, which concern: the whicha duraiion of the meeiing at contract is concluded; legal capacity; lease of waqf property; contract of hikr(rent for landor building for an extended period); termination of lease on death of lessee and terminaiion oflease "for serious and unforeseen circumstances;" release of debt by unilateral declaraiion. Andersonalso includesinfluences of the Shan'a in the guiding concepts. . of "choiceof certain . when Europeancodes aredivided" as follows: An objective rather than a sllbjective tendency; principles applicable to the abuse of rights, usingboth subjective and objeciive tests; legal consequences of excepiional and events;provisions regarding unpredictable assignment of debt. (Anderson, pp. 31A5). The completelegislative history of the new code is containedin the Ministryof Jus- ticepublication previously cited, publishedshortly after the (:ode was passed into law.In additionto the explanatory memorandumaccompanying the new code and the Senatedebate verbatim, these volumescontain a detailedaccount, article by ariicle,of thecode indicatingchanges from the old code, discussionsin the draftingcommittees,

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions 188 ARAB LAW QUARTERLY and discussionsof the sourcesof individualarticles and intent. Only by goingthrough these seven volumeswill it be possibleto assesswhether Anderson has pickedup all the explicitand implicit"debts to the Shan'a".It wouldalso be interestingto comparethe finalresult with al-Sanhuri's own extensive detailing of possibilitiesof further incorporationof Islamicrules of law in his 1936article proposing the revisions. Anderson'slisting does, however,conform fairly closely with a brief summaryof the Islamic rules in the code that al-Sanhuriincluded in an article written later (al-Sanhuri,(1962), p. 12). The maindivergences concern the way in which areasof law are defined.There also seems to be some differenceof opinionas to whethera coupleof the rulesor principlescome from the old codeor werenewly added, but this differencemay be more apparentthan real due to differentlevels of specificityat whichareas of law areidentified in the two articles. Al-Sanhurialso pointsin this articleto anotherfeature of the new code, namelyan innovationof "flexibility".The new code, he says, had substituted"flexible standards"in place of "inflexiblerules", so that "solutionscan changewhen conditions change"(al-Sanhuri, (1962), p. 14). ChafikChehata, once with the Facultyof Law in CarioUniversity, subsequently Professorassociated with the Facultede droitel dessciences economiques of Paris, has also writtenon the new Egyptiancode, firstin a seriesof articlesin the ffournaldes TnbunauxMixtes during the 1940s(Chehata, (194648)), then concerningspecifically "les survivancesmusulmanes" in it (Chehata,(1965)). His categorisingof the areasof the Shan'a influenceis differentfrom Anderson's as is also his generalassessment as to the extentof the debt. Chehata'sprimary concern is with areasof law in contrastto Anderson'sprimary divisioninto kind and sourceof influence.Chehata's basic divisionis threefold:(1) mattersof obligationor personalrights; (2) mattersof propertyrights; and (3) Muslim law as a formalsource of Egyptianlaw. It is in Chehata'sarea of propertyrights that Anderson's"new provisions"and "provisionsfrom previouslegislation" appear. These areprovisions of Shan'a law, Chehataremarks) "applied directly". As concernsthe subjectof obligations,"its historicalsource is Romanlaw . . . (but) a generaltheory of obligationwas not completelyconstructed by the Romans". The theoryof obligationfound in those modernlegal systemsbased on Romanlaw was developedfrom various elements in Romanlaw by meansof glossing."In Muslim law", coniinuesChehata: valuable elements are furriishedto us by the scholarsof jurisprudence,allowing us, in our turn, to elaborate a general theory that can correspond to that elaboratedfrom Roman law. (p. 844)

This is what Chehatahimself tried to do in his Theonegenerale de l'obligationen droit Musulmanhanefite (1936). Such was also the intentionof al-Sanhurias he workedon the new Civil Codeof Iraq(see suprapart V and al-Sanhuri,(1936c)), in variousworks concerning theory of contractsand of obligation,and of coursein his subsequentstudy of the sources of legal rights(195F1959). Thus it is not sufficientto point to particularprovisions in specifiedarticles that directlyincorporate a Shan'a legalrule to comprehendwhat al-Sanhuriwas tryingto do in makingthe new code "moreIslamic". The principles

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 189 underlyinglegal right or obligationin Islarniclaw influencewhat rules are selected from variousmodern codes. Al-Sanhurihas indicatedthat this was his intentionand Chehataconfirms that it is indeed to be foundin the new code: In general,the spirit that dominatesthe subject(of obligaiion)in Muslimlaw is an Qbjeccive tendency.... The Egypiianlegislator of 1949 has opted for this objectivetendency and throughthis bias has linked up again with the line of Muslimjudicial thought of the past. Althoughhe has not borroweddirectly from the Muslimsources which inspire this tendency, by recognizingthe biasunderlying legal soluiions, has chosenthose solutions in Westerncodes whichare consistent with this new concepiion.(Chehata, (1965), p. 844)

All commentatorson the new EgyptianCivil Code refer to the provisionsin Article 1 providingthat, in the absenceof an appropriate text in the law, the Shan'a is) after sCcustom>(but before"natural justice and the rulesof equity")to be a sourceof law. Chehatarefers to the makingof Islamiclaw a "formalsource in all mattersof civil law" as "the most importantinnovation of the EgyptianCivil Code." Thus: for Muslim society . . . the Muslim law (the spirit which animatesit and the fundameIltal reasoningbehind its injunction)becomes a kind of preludeto naturallaw, strictly speaking, and he predlcts that: aftersorne time has elapsedthere will be, throughthe practiceof the courts- helpedof course by the new Egyptianlegal doctrine-a new receptionof Islamiclaw. (p. 853)

The Shan's may, however,actually be morethan a "preludeto naturallaw" in this first articleof the EgyptianCode. Precedingreference to the IslamicSharia in the firstarticle the judgeis enjoinedto ;'decideaccording to custom'. The contentionhas been madethat in Egypt "custom' ('urf)is for the mostpart, Islamiclaw. In Egyptiansociety are found many customs('adat) which are practicesknown to people ir their transactions,and which are suitabletools for interpreiingthe will of contractingpariies. (al-Bishri,(1965), p. 630)

But thereis ;'no widespreadlegal consciousness'that they constitute'a requiredor determinaterule". Custom (urJ) in its technicalmeaning is knownusually "only inso- far as it is a rule thatcomes from the Shan'a . . . eitherfrom the worksof Islamicjur- ists or rootedin their sources(masadir)" (p. 630). That is, judicialinterpretation in referringto custom(as urf) would be in point of fact referringto Islamiclaw. Both the Libyanand Syriancodes) in the correspondingarticles, specify resort to the Shan'a beforecustoms. One Westernscholar has hypothesisedthat "the variants in phrasing"in thesecodes indicate"a somewhatdifferent approach" to the Shan'a as a sourceof law (Liebesny,(1975), p. 95). However,considering the extensivecorre- spondencebetween legally relevant "custom" and the Shari'ain the Egyptiancontext alludedto above, the practicaleffect of this reversedpriority in directingthe judgeto a sourceof law outsidethe Codemay, in fact, be negligible. Somethingof significancedoes, however, suggestitself. Certainlyal-Sanhuri was awareof the subtletiesof the legal meaningof 'urf. What, then, has he done? One

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions ARAB 190 LAW QUARTERLY could look at it in two ways. Eitherhe has madethe new code appearto be less sus- ceptibleto evolutionin an Islamicdirection (through the courts'jurisprudence) it actuallyis (being than but anotherinstance of clothingIslamic substance form);or, in "modern" he has providedfor a morepopulist andEgyptian mic law interpretationof Isla- beforethe Shan'a is to be openedup in its entirety. both. Perhapshe intended Whatthen can be saidof al-Sanhuri'srevised Civil Code is it or is it not Islamic? Al-Sanhuri'sown claimswere relativelymodest as concernsthe islamicisationof the Code.He neversaid that he had producedan "IslamicCode". It was rathera beginning, the settingof a direction. "The Egyptianlegislator believed", he was to write twentyyears later; "that a step had been takentoward returning to the Islamicjuris- prudence"(al-Sanhuri, (1962), p. 13). How then, to assessthis beginningstep? How does one estimatethe extentof the incorporationandlor influence of Islamiclaw on this Code?Does one count articles, calculateratios, seek underlying principlesof legalright? Or doesform so overwhelm substanceas to makethe quest ultimatelymeaningless? Is the geniusof Islamic afterall, its historical law, form and method?Is it indeed inseparablefrom its foundationand thus original inseparablefrom religion?Or-inasmuch as al-Sanhuri's Codehas weathered Civil the yearswell, has proveditself a veryrespected and codeoes it really serviceable matterwhether it is or is not, or to whatextent, Islamic? Now thatis a questionfor whichthere is a verycertain answer: Yes, it doesmatter. The issue of Islamiclaw is first and foremosta politicalquestion. It is partof the continuingstruggle taking place in the wakeof the expansionof Westerncapitalism andwith it the spreadof Western culture.Today the issue is "dependency'con- omic,political, cultural while in al-Sanhuri'sday it was called"the nationalques- tion" politicalindependence and nationalsovereignty. Given the centralityof law anation-state's political to symbolismand culturalidentity, it would seem mandatory thatthe law come from"the nation'swomb" a phraseused in 1936(just as the revisioncommittee met) first by a judgeof the supremeShari'a court, whose call restorationof the for the Shan'awas, he said, not for religiousreasons but from ofpatriotism". the "dictate Anation is disiinguishedfrom other nationsby its individualcharacteristics, chief among whichis its jurisprudence. . . Upon my life, the (existing)legislation is not of the nation's womb.(quoted in Ziadeh,p. 140) Al-Sanhuri'spatnotic sentimentsare not in question.Whereas the project revisionof the Civil of the Codewas no "restorationof the Shari'a"pure and itsincepiion to its simple,from promulgationit was inspiredby concernsof nationalistpolitics. Norwas it al-Sanhuri's only politicalact. Activitiesinvolving him in issues cernedEgypt's thatcon- politicalindependence and nationalstatus began when he andcontinued was young for much of his life. These activitieswere many and embroilinghim various,at times in the partypolitics of his day, at timesallowing him talents. to utilisehis legal Afterthe CivilCode, his othermajor contribution to legal the buildingof national institutionsand a modernlegal culturein Egyptwas his dawla. workon the Mailisal-

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IX. NATIONAL AND INTERNATIONAL POLITICS

Politician and Minister Al-Sanhuriwas caughtup in the currentsof politicsin Egypt from the beginningof his professionallife. He was a youngassistant (wakil) in the niyabalXin Mansuraat the time of the (1919) revolution.He joinedthe Wafdistmovement and organiseda suc- cessful strike of employeesin his office and, as a result was transferredto distant Asyut, in UpperEgypt (Rhattab, (1971)) p. 4). In 1934 al-Sanhuriwas againinvolved in politics, or allegedlyso. He was tempor- arily suspendedfrom the universitywhen the governmentaccused him of question- able politicalactivities, namely forming a groupof studentswhich, underthe guise of being a literaryand culturalgroup) was pursuingpolitical aims (Castro,(1984), pp. 85-86)* Al-Sanhuridefended himself in an interviewpublished in al-Ahramon 19 August 1934)where he deniedthe accusationof havingfounded a politicalgroup. When al-Sanhurireturned from Iraq in 1936he was appointedDean of the Faculty of Law at Cairo Urliversity. Withinthe year,however) he left the university"for politicalreasons". It is safeto assumethat these "politicalreasons" were connected to his longstandingcontroversies with the Wafdand his associatlonwith AhmadMaher and Nuqrashi.He left the Wafdwhen they did in 1937and joinedthem when they formed the Saadistparty, which party al-Sanhuri represented in variousministries thereafter. A series of governmentappointments ensued for al-Sanhuriover the next twelve years, including that to the Mixed judiciaryof Mansura(1938-1939), interspersed with the practiceof lawin 1942and 1945/46.Whenesrer a Wafdistcabinet came in, he was predictablyput out or transferred. Nahhas hated Sanhurl and pursued him vindiciively over the years. In 1937 Nahhas fired him from his deanship and the civil code committee . . . (and) Nahhas forced him out once more in 1942. (RiedX(1981), pp. 15F155). Al-Sanhuriis listed as being a deputy(wakiE) in the Mmistryof Education(1939) and in the Ministryof Justice(1944). He was appointedMinister of Educationrepre- senting the Saadist Party in a cabinet under Ahmad Maher and Nuqrashi (1945-1946). Then he was brieflya Ministerof State(Royal Counsellor) and in 1947, when Nuqrashisucceeded Islamic Sidqi as Prime Minister,he was againappointed Ministerof Education.There is scantdocumentation of his activitiesin these government posts. One eulogistsays that "he set out huge projectsof educationincluding a programfor eradicatingilliteracy" (Khattab, 1971). A contemporaryemployee in the Ministryof Educationrecollects that it was durmg al-Sanhuri'stime that the school systemof Egypt becameunified. Another contem- poraryin the Ministryclaimed that underhim it was "a modelof the ministriesat that tirne'>and quotesal-Sanhuri as saying,on the occasionof his departure: I succeeded with most of my projects there. I only fell down in two matters: (eliminating the

12 See E Hill Makkama! (1979a),chapters 1 & 2 for an explanationof the EgyptiallNiyaba as an institution its historicaldevelopment, structure and functions. See alsoHill (1979b),pp.11S134.

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions 192 ARAB LAW QUARTERLY pracocesoi) privatelessons and giving roomsin the Ministryto seliioremployees. (Allam, (1986),p. 160)

Irregularitieson the lower levels of governmentlife, it would seem, were just as intractableas the variouscorruptions on a largerscale with which governmentand countrywere plagued. Dunng this periodalso he was, of course,working on the revisionof the CivilCode andhe continuedwriiing legal treatises. But he alsoappears to havewritten for several popularpolitical journals such as al-Hilal,al-Siyasa and al-Balagh.At the sametime his legacyto the Law Facultycontinued in the use thereof materialshe had prepared earlier,namely a basictext book for law students,Usul al-qanun (Principles of Law) (al-Sanhuri,(1941)). FromJanuary to May 1937he was editorof the journalal-Qanun wal-iqlisad (Law and Economy)al-Sanhuri, (1937)). In 1937also he headedthe Egyptiandelegation to the SecondInternational Congress of ComparativeLaw at The Haguewhere he again defendedthe Shari'a. In the sectionfor droit onental at thatCongress the rapporteurnoted iithe high qual- ity of the discussions"and that, for the firsttime, discussionhad takenplace in Ara- bic. The Congressvoted to invite delegatesfrom "all universitieswhere there are professorsor scholarswho are interestedin Islamiclaw" to attendthe next confer- ence. The Congressalso adopted a resolutionstating that "Islamic law is ableto adapt itself to the needs of life" (Congres,(1937), pp. 53-54). Al-Sanhuripresented a paper entitled,"La responsibilitecivile et penale en droit musulman" (al-Sanhuri, 1937)). By the 1940sal-Sanhuri had become prominent in publiclife andhis namebegan to appearamong the membersof Egyptiandelegations sent abroadto representEgypt and to negotiatematters of nationalpolitical concern. In 1946he is noted as having headedthe Egyptiandelegation to a conferenceon Palestinein Londonand in the sameyear an Egyptiandelegation to the UnitedNations. But it is the 1947represen- tationmade to the UN that had historicalimpact. Al-Sanhuri was a memberof that delegation,one of the "distinguishedjurists" who accompaniedNuqrashi, "an honest man". The latter, as Prime Minister,led this delegationwhich presented"Egypt's complaint"against England, an effort on the part of the Egyptiangovernment to transferthe ineffectualnegotiations with Britainover continuedoccupation and the questionof nationalindependence for Egypt (as well as for the Sudan)to an inter- nationalforum. At the UN it was the questionof the occupationby Britainof the Sudan under the aegis of the Anglo-EgyptianCondominium of 1899 with which Egypthad had little to do since the 1920s thatwas the centerof the complaint.The UN adjournedEgypt's request sine die, a defeatfor Egyptin her firstattempt to use the new forumof internationaldiplomacy, and for Nuqrashia personaldefeat which was turned into a success as it fueled increasedanti-imperialist demonstrations at home and he was given a hero'swelcome when he returned(see Berque,(1972), pp. 600 603;655456;and pessim). One of al-Sanhuri's"research interests", notes a recentbibliographical entry, was "negotiationson the Egyptianquestion" (Allarn, (1986), p. 159). Also duringthis periodal-Sanhuri was involvedwith establishingthe Instituteof

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High Arab Studies, a creationof the Arab League. He becamehead of its legal div- ision where he gave lecturesand supervisedtheses (see MIDEO, (1954), (1957). The Institute still exists, as an adjunct to ALESCO-The Arab League Educational, Scientificand CulturalOrganisation. This was the closesthe cameto seeing the establishmentof an Arabuniversity- an aspirationhe seemsto haveheld, alludedto here and therein the briefaccounts of his life. In 1946he becamea memberof the Group(maima') of the ArabicLanguage whose conferenceshe participatedin and for whom he workedon projectsdeveloping the Arabiclanguage, notably in the committeeconcerning law and economics(see Majal- latal-maima' (1953, etc.; Allam, (1968), p. 158). In one of theirmeetings, in 1948he gavea presentationon the Arabiclanguage by likeningit to the law (al-Qulali,(1972); Majallatal-majma',(1953), pp. lll-115). For these twelve years, then, al-Sanhuriwas active very active-on the stage of nationalpolitics and its intellectuallife. He joined the SaadistParty, the party of Ahmad Maherand Nuqrashi,formed in 1938 followingtheir expulsionby Nahhas from the Wafdcabinet in late 1937.It was "theeffendis' party, that of . . . technicians and managers"(Berque, (1972), p. 630). But AhmadMaher was murderedin Febru- ary 1945 in the parliamentbuildings a month after the electionsthat had given his partya sufficientplurality to form a government.Maher had just obtainedapproval fromparliament to declarewar on the Axis in orderto ensureEgypt's participation in the United Nations. Maherwas succeededby Nuqrashiwho was himselfassassinated threeyears later, after issuing an orderfor the dissolutionof the MuslimBrotherhood, a measuretaken under the impositionof martiallaw to counterthe risingterrorism in the countrythat had eruptedfollowing the declarationof the Stateof Israeland the Palestinewar. Al-Sanhurispolitical fortunes paralleled those of his countryduring these times. He too sufferedfrom what the countryand its politicswere enduring- the repeatedcollapse of governments. Politicalintrigue and the tripartitejockeying for positionand power between Wafd, Palaceand British,and its exacerbationdllring the yearsfollowing the SecondWorld War, had distortedEgypt's politics and oftenundermined both genuineand cosmetic efforts of reform.Palace and cabinetintrigues had their counterpartsin the streets. Demonstrationsand strikes, terrorismand violence, seemed to have become an integralpart of Egypt'spolitical culture. Al-Sanhuri'spolitical fortunes were still, however,on the rise, and in March1949 he was appointedto the top positionin the newly formedMajlis al-dawla. The circle had in a sense been completed.He resignedhis partyaffiliation and resumed the man- tle of jurist. But the politicalforces in Egypt of those daysdid not let anyoneremain politically neutralfor long, and certainlynot an Egyptian-Arabnationalist who had workedfor over twentyyears to promoteEgypt's intellectual and legal independence and her par- ticipaiionin internationalfora. It was inevitablethat the politicsof the countrywould not bypass even the respected juridical personality that al-SanhuriPasha had become-especially such a figure, who used the weaponsof legal languageand principles of right againsthis politicalopponents.

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X. CONSTITUTIONALIShl AND POLITICS

Presidentof the Mailis al-Dawla His appointmentas ra'is(president) thatis, chiefjusticef theMajlis al-dawla (the }ierarchyof administrativecourts and body that issues advisoryopinions) in 1949 providedas-Sanhuri with an excellentposition from which to developthe spirit of independencein Egypts judiciaryand adherenceto law in the wholestructure of the government.It wasan institutionwhich had only shortlybefore been established in 1946. Al-Sanhuriaffirms that the Mailis al-dawlais patternedon the French Conseil dnEtat(al-Sanhuri, (1950), p. 1). Evenamong countries with a definedadministrative law and specialisedtribunals to applyit) the FrenchConseil d>Etat is "a uniqueinsti- tuiion"(David, (1972), p. 131). Datingback to 1799, it has grownup as a separate judicialstructure exercising far-reaching and independentsupervision over officials, agenciesand theirfunctionaries; that is, overall thattouches the executionof the law and lts abuse. It is not the guardianof the constitutionexplicitly, but as guardianof the executionof Iawit becomesinvolved with issues that in other systemsare dealt with as constitutionalcases. When the Frenchadministrative apparatus first acquiredindependence from the judicialpower in 1790, Rene David (doyen of French legal scholars)tells us) "it understoodthe dangerof arbitraryaction and corruptionthat menaces those holding power",and it introduced"a self-limitationof its powers".The institutiondesigned for this purposewas to becomethe ConseildnEtal, and remainsthe meansby which the Frenchadministrative apparatus is regulated.From the Presidentof the Republic to mayors,ministers and prefectsand all who are associatedwith executivepower, "all aresubject in Franceto havingtheir activities submitted to criticismand censure by the ConseildnEtat" (David, (1960)I, p. 329. Al-Sanhurirecounts something of the past historyof the EgyptianMajlis al-dawla and fifty yearsof attempts to establishit in his prefatoryarticle to the firstissue of the journalof the Mailis al-dawZain 1950: The establishmentof the EgyptianMailis al-dawla was precededby otherefforts ln the past. The firstattempt was in 1879,followed by a secondtry in 1883,but thattoo wasdestined not to have a successfuloutcome. The governrnentalJudiciary Committee opposed the systemof a Mailisal-dawla. (al-Sanhuri, (1950), p. 2)13 It shouldbe rememberedthat the EgyptianMinistry of Justicehad in its midst a personageknown as the "judicialadviser". The post was establishedfrom the early days of the occupationand filled by an Englishmanuntil 1936)from which vantage

In an ariiclepublished in France,al-Sanhuri gives a little morebackground on theseearly attempts. The firsttirne the Egyptianlegislator tried to give the countrya Conseild2Etat was by a decreeof 23 April 1879 . . . It was to have threefunctions: legislative consultaiive and adjudicative.But for reasonscon- nectedwith the situationof the publicdebt and the state'sfinances, this lawwas not executed. In the organiclaw of May 1883, the legislatoralso anticipatedthe creationof a "conseild etat"whose functionswere liniited by the decreeof 22 September1883 to beingconsultaiive and legislaiiveonly, and excludingthat of adjudicaiion.But this reforrn,for poliiical reasons, was also suspended by the decreeof 13 November1884. (al-Sanhuri, 1952: 578).

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 195 point considerableinfluence on the governmentwas exerted,judiciary committees not excluded.There is no way the Britishwould have looked kindly on the establishment of a Mailis al-dawlain theirmidst. It wouldhave been yet anotherfeature of French law, the bane of the Briiishin Egyptand, moreover,an institutionquite incompatible with the needs of an occupationregime, given its ethosand raisond'etre as guardianof rightsarld liberties from administrative abuse However, al-Sanhuri,writing in 1950)praises the previouswork of the Judiciary Committee Its work,he tells usZhad been "re-examined"in 1923.That was the year, be it remembered,of the EgyptianConstitution which set up an independentparlia- mentarysystem of government,and Briiish hegemony?at least ostensibly,began to diminish.But thereis an additionalreason why al-Sanhurichooses to view the Judici- ary Committee(at least in "re-examined"forrn) in a favorablelight. Whereasit did noe have all the attributesof a Mailisal-dawla (functions offatwa and the legislation only)) it "contributedgreat serviceto the country",and was C'theprimary basis on which the presentMailis al-dawla was set up" (al-Sanhuri,(1950). pp. 2-3). A new judicialinstitution for Egypt, which clearlyand admittedlywas patterned closely on the French Conseild'Etat, nonethelesscan be seen to have grown from somethingalready existing in the country.And al-Sanhurihas a point. The Mailis al- dawlaof Egypt did takeon the functionsof issuingadvisory opinions (fatawa) aIldof advisingon and draftinglegislation (although it was to becomemuch more than that). Something new coming out of something old that was a favorite theme of al-Sanhuri's,something he continuouslystressed in his legal work, and the title of a piece he wrote for the popularmagazine) al-Hilal in 1949.The editorshad askedhim to writeon 4'thenew" for a specialissue concerning"al-Jadid", but) he says, he could not write on ' (pp. 28-29). Whatal-Sanhuris own

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions ARAB LAW 196 QUARTERLY role was in the draftingof the law and its finalsuccess is not clear.There was, however, a configurationof personsin poliiicalposts at the timethat suggests al-Sanhuri's handnot farin the background. Throughout1945 Nuqrashi was in the governmentas Saadistprime miriisterof a coaliiioncabinet, and al-Sanhuriwas Ministerof Edu- cation. Al-Sanhurihimself had been Deputy Ministerin the Ministryof Justicein 1944,a iime whenthe projectof establishingthe Mailisal-dawla was almostcertainly under discussion.Moreover, the successorto Nuqrashias Saadistprime minister, IbrahimAbd al-Hadi,was still in thatoffice when al-Sanhuri was appointed to the post in the Mailisal-dawla. top Whatevermay have been the backgroundof the politicsinvolved, one cannotimag- ing a posiiionin Egypt at that time moresuitable for al-Sanhuri'sparticular talents, penchantfor creaiionof legalinstitutions, andlong-standing interest in publiclaw. 14 In the wordsof a FrenchIslamic legal scholar: He succeeded in giving this institution, still in its first years of existence, a real vis-a-visthe government, independence and made it the symbol of judicialreform in the (1958),p. 476) country. (ECellefonds, Once in the position of ra'isMaylis al-dawla, he undertook, towering to make it into "a fortressof the protectionof rightsand the guardianof 1980).His liberties"(Mursi, decisionsin thesecourts are remembered, notably for: (1) Furtheringthe right of the administrativejudiciary power to exercise vision over the super- constitutionalityof law. "Whilethe judicialpower the legislative supervises power, it does not undertaketo legislate."Hourever, lation is in "if legis- oppositionto the constitution,it is its duty not to apply Qulali,(1972); it" (al- (2) Supportingthe freedomof the press and the expressionagainst ordersto ban government publicationsor cancelor denypublishing licenses; and (3) Offering legal redress of grievancesfor those who claimed to wrongedby have been administrativeor other governmentalaciion (al-Qulali, Mursi,(1980). (1972); The establishmentof the right of judicialsupervision over the constitutionalityof lawswas, says al-Sanhuri,"the most importantdecision that the Egyptianjudiciary hasissued in the modernage" (al-Sanhuri,(1950, p. 11)and "a pointof realtransfor- maiionin the positionof the Egyptaincourts in this matter,in view of the position occupiedby the court of the administrativejudiciary (al-gada' al-idari)" (p. 10). Althoughthe decisionwas issuedon 10 February1948, before al-Sanhuri came thecourt, he immediately onto reinforcedthis newlydefined competence of the courtsin thefirst issue (January1950) of the journalof the Majlisal-dawla, of which he was lAIn 1949 there was a major revision of the Mailis al-dawla with happy,further which al-Sanhuriseems not tO have been suggesting that he had had a close connection hewrites, with the 1946 law. "Under the law of 1946", "the sections of the Egyptian Conseil d'Etat had links with each other, whereas the law of hasnot been fortunate in the modifications 1949 in this respect". The changes brought about administrativestructures for opinions created separate and legislation on the one hand and litigation on thisthe 1949 law has, he says, the other. In doing "set up a barrierbetween the sections". The ofitshomogeneity" and Conseilhas thereby "lost much "there is no longer the collaborationindispensable (p.578). between the different sections"

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 197 editor. Two long articleson the subjectwere containedin this issue and he himself discussesthe matterat some length in his introduciion. "The right of supervisionover the constitutionalityof laws is not found in the FrenchConseil d'Etat, "he writes, but: if the Frenchjudiciary siick to old opinionsthat say it is not permittedfor them to look at the consiituiionalityof law, we do not have to acceptthese texts in Egypt . . . We must liberate oulselves from the nooseof iniitaiingothers . . . We see thatthe conveniionsin Franceare differentfrom those of Egypt. (p. 12) He explainsthe matterto a Frenchreadership somewhat differently: Althoughthe principleof nonaccountabilityof acts of legislativepower is adIrdttedin Egyptas in France,the Conseild'Etat of Egypt, in contrastto Frenchjurisprudence, has recogriizedthe rightof examinaiionof constitutionalityof laws and, a fortion, of decree-laws,even aftertheir raiificaiionby the parliament. The decree-law,before being ratified by parliament,consiitutes an act of executivepower; thus the decree-lawcomes withinthe formaland organiccompetence of the EgypiianConseil dEtat to annul executivedecisions; and thereforeit has authorityto annul a decree-lawas it has to annulall otheradministrative decrees. (al-Sanhuri, (1952), p. 580) The authorityto annulexecutive decrees by an administrativejudiciary is not syn- onymous,certainly, with the right to void lawswhich originatein the legislature.In this article comparingthe Egyptianand French conseilsd'etat al-Sanhuri does not, however,discuss the basis for the extensionof the powerof judicialreview in Egypt overlegislative acts. He tells his Frenchreadership: That which contributedto asseriing the supervisionof the constitutionalityof laws is the absence,in Egyptianlegislaiion, of texts susceptibleof being interpreted,as in France, in a sensethat forbidsthe judgeto considerconstitutionality. (p. 580) The natureof this power,and the reasoningwhich underlies its assertionis discussed in the two articlesin the journalof the Mailisal-dawla referred to above. Al-Sanhuri summarisesthem in his introduction. Accordingto al-Sanhuri,the judge'srole is to interpretthe laws and see that they are executedonstitutional laws and ordinarylaws. All laws carrythe presumption of executability.However, if the judgefinds two laws in conflict(including the constitution, which has a certainpresumption of priority),he cannotapply both of them. He does not, however,void one of the laws. He refrainsfrom applying it to the casehe is judging."The judgmentlooks first at the constitutionalityof decree-lawsand goes from there to the constitutionalityof law itselfr'(al-Sanhuri, (1950) pp. 11-13). The decision,he says, "is long and complex",and he proceedsto give his own reasoningas to what the right rests on. ';Thereis no doubt that the administrativejudiciary may void a decree-lawfor its non-constitutionality."If we stop there "the matteris simple". However,al-Sanhuri is of the opinionthat the judiciary whetheradministrat- ive judiciaryor the regular judiciary has the duty to be the supervisorsof the constitutionalityof "lawitself:', that is of parliamentarylegislation whether the legislative power exercisedis strictlydefined or discretionary,and in regardto both the formand the substanceof the law.

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The Makkamatal-naqd (Court of Cassation)had actually preceded the administrative courtin issuinga judgmentof the matterbut its rulingon the constitutionalright was "extemporaneous",says al-Sanhuri,and then an appealcourt issued a contrary decision.The latterstated categorically that the legislaturewas the sole authorityas to the constitutionalityof its legislation.It is this opinionthat al-Sanhllri counters when givinghis own reasoningas to the rightand- the dutyof the judicialauthority to review the consiitutionalityof laws. "Thelssue is not whetherlaw is an actof legislativesovereignty or not, norwhether the legislatureis using definedor discretionarypower." The fact of the matteris ratherthat "theadministrative judiciary does not actuallynullify administrative regu- laiions,leave alone legislaiion. An opponentof a law maynot askthe courtto declare the law void fromits incepiion,but rathermay ask that it not be applied."Al-Sanhuri reasoned: Is it possible for judges to apply legislation when their opinion as to its constitulionality differs from that of the legislature?The basis of this right (of substituting their opinion for that of the legislature) is not, however, found in any text of the Egyptian Constitution nor is it a general principle. Judging the constitutional correctness of legisIation, objectively speaking, is judicial work. And if it is said that the principle of the separation of powers is violated, it may be answered: The judiciary exercises supervision over parliament's opinion (about the constitutionality of legislation) not by initiating legislation as that would be interference with the legislative power- but by a judicial act. The applicable constitutional principle is that powers should be exercised in accordance with the Constitution. The parliament contradicts this principle if it issues legislation that opposes the Constitution, and rather than apply unconstitutional laws the judges record this violation. Thus it is permitted that judges look at the constitutionality of laws-indeed it is their duty tO do so-in order to prevent application of legislation which, in their estimation, infringes the constltutlon. Administrative judges and regular judges are equal in this competence. And if it is said this reality is not equivalent to an authority to nullify an administrativeorder and certainly not authority to nullify a law) the answer is: It is not nullifying a legislaiive command as the judicial decision does not nallify the law in quesiion. Rather, the decision limits itself to the impossibi- lity of applying the law in the case at hand. (al-Sanhuri,(1950) p. 15-16) If this does not seemto be the full powerof "judicial reviewX' it comesclose. Confir- mationof the authoritythat this judicialdecision conferred on the Egyptianjudiciary and reinforcementof its independenceof executiveand legislativepower is foundin the factthat, evenafter 18 yearsof pressureon the judiciaryfrom the new regime)that regimestill foundit necessaryto establisha specialhigh court directly under executive authorityto rule on questions of constituiionality.The precipitatinginstance) of course,had been the wholesaledismissal of judgesin the iCmassacreof the judiciary" in 1969 by an act of the Presidentof the Republic)and the subsequentissuing of a courtdecision declaring the executiveaction illegal. The ConstitutionalCourt established in 1970(although in the firstyears it did not carrythe title of a constitutionalcourt) remains outside the regularjudicial structure, and its judgesare appointeddirectly by the executiveand not pursuantto the advice of the High JudiciaryCouncil upon which sit membersof the judiciary.However,

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 199 although consetuiional questions now are submitted to the ConstitutionalCourt, issues concerg civil rightsare still usuallytaken to the Majlisal-dawla by virtueof its coniinuing funciion as protectorof ciiizens from arbitraryand unwarranted governmentaction. Thus whereasrefusal to applylaws for reasonsof unconstitutionality is no longerformally possible, the Mailis al-dawlaretains its authorityto review execuiive action, and it continuesto be adviserto both the executiveand the legislature. Laws, before they are submittedto the People'sAssembly today must still be passedon by the Mailisal-dawla. The Mailis al-dawlais consideredby some to have a greaterindependence vis-a-vis executivepower than the regularjudiciary, although some of this independencewas erodedby law in 1972, when the compositionand competenceof the High Judiciary Collncilwas alteredin regardto judicialappointments. The Mailis al-dawlaretained its essentialethos, however,and a hard-foughtstruggle in 198X198S has restoreda measureof its independencein the appointmentof judges vis-a-visthe Ministryof Justice, representativeof executivepower. Al-Sanhuriheaded the Majlis al-dawla from 1949 until the political "crisis of March"in 1954. The Wafd governmenttried to put al-Sanhuriout of the Majlis1- dawlain 1950, but he foughtback saying: Between me and them (the politicians of the Wafd) is the consiitution and the law of the Mailis aI-dawla. . . How can I allow the government to deal arbitrarilywith the Mailisal-dawla when it is the body supposed to impose just treatment of people when the governrnent wrongs them? (Mursi, (1980)) Several of the eulogies reproducea statementascribed to an unnamedEnglish journalistof the time, who is quoted as saying:"There is no judge in Englandlike himt" (al-Qulali,Mursi, Khattab). Among the chargeslevelled against him was the claimthat his formerpolitical affi- liation preventedhis taking a posiiion as judge. Al-Sanhurireplied that there was nothingin the Constitutionor the laws that forbadehim being presidentof a judicial body afterhaving been minister for a politicalparty) that he had severedhis partycon- nectlons and there was nothing that interferedwith his independenceas a judge. Moreover,he is quoted as saying, "The historyof the Egyptianjudiciary is full of namesof judgeswho havebeen ministersand affiliatedwith politicalparties" (Mursi, (1980). The referencehere, commentsMursi, is obviously to Abd Al-Aziz Fahmi, once head of the Liberal-ConstitutionalistParty, who becamepresident of an appeals court and then Presidentof the Courtof Cassation,the highest judicialoffice of the regularjudiciary.ls Al-Sanhuriinaugurated the publishingof the journalof the Majlisal-dawla in 1950, and he wrotea lengthyintroduction explaining the backgroundof the Majlisal-dawla, introducingthe articlesof thatfirst issue and indicatingwhat the journalintended to publish in future. It was to have three sections, he said: the first for researchand

15 'Abd al-Aziz Fahmi is remembered today by the legal/judicial professions as Egypt's most eniinent xudge. He had gone to Paris with Saad Zaghlul, was a member of the drafting commission for the 1923 Con- stitution, and Minister of Justice. Al-Sanhuri wrote a eulogy to him that was published in the MajallatMaj- lisal-dawla in 195 1.

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions 200 ARAB LAW QUARTERLY studies, the second to concernconnections between judicial decisions and jurisprudence in administrativelaw, and a thirdseciion for documents.He is listed as ratis al-tahrtr(editor) on the coverof this firstissue. Whenthe revolutioncame in 1952,al-Sanhuri supported the Free Officersand was legal adviserand draftsmanfor the RevolutionaryCommand Council, by virtueboth of the functionof the Mailisal-dawla as legaladviser to the governmentand his owr personalsupport for the Revolution. It was the Mailisal-dazvla under al-Sanhuri that provided the fatwa settingout the legal foundationfor Decree law No. 121of 1952,by siipulatingthe procedureto be followedwhen the heir to the thronewas under age followingan abdication.Existing law coveredonly the case of an underaged successorfollowing the death(not abdication)of the king. Had the latterprocedure been followed)it wouldhave meant call- ing the Wafdistparliament back into sessionto administerthe constitutionaloath to a "regencyorganisation". The decree-lawallowed a "temporaryregency organisation" to have the oath administeredby the Councilof Ministers.The 1923 Constitution, Article 237 requiredthe PermanentRegency to take its oath before the parliament (Shakra,(1985)) pp.l73-175; esp. 173n.2).l6 The fact of powerafter the 1952revolution did not translateimmediately or easily into anotherbasis of legitimacy.First the parliamentwent, then the parties then the Constitution.While the old lawsremained, new lawsbecame superimposed, and the independenceof the judiciarybecame subordinated tO concernswith the independence of Egypt. But neitherold lawsnor judiciarycompletely lost theirvitality. The judiciarywas to resistcooptation as a body and only in 1969 did the finalonslaught come, by an executivedecree which was challengedand reversedby the judiciary itself. Duringthe first 18 monthsof the Revolution,when al^Sanhuri was still in placein the Mailis al-dawla,the old legalitieswere stretched but they werenot ignored,and the Maylisal-dawla became involved with allowing approval of the decree-lawrestrict- irlg political parties. MuhammadNaguib's memoirsindicate that al-Sanhuriwas opposedto this lawbut "yieldedto the persistenceof SulimanHafiz", his deputy?and the argumentthat "the partieshave been corrupted,which negates the realmeaning of parliamentarydemocracy". However, al-Sanhuri hedged his agreementby including the provisothat "the governmentwould not interfereunless it was necessary. . . and such interferencewould be underthe directsupervision of the Mailisal-dawla" (Shakra,( 1985), pp. 30W301 ) .

16 Shakratakes the materialfor his discussionon this issuefrom: 7Abd al-Fattah Hasan, Dhikrayyal siya- siLya (PotiticalMemoires) (Cairo (1974) pp. 137-139);Wahid Ra'fat, Fusul (Decisions) (Cairo n.d.) pp. 12>130); IbrahilnFarag, DhiArayyat siyasiyya (Political Memoires) (Cairo (1983) pp. 8>84); 'Abdal'Azim Ramadan,Nasir wa azmalmaris (Nasser and the Crisisof March)(Cairo n. d., pp. 27, 3W31 ); AhmadHam- rush,Qissal thawrat 23yulyu (The Storyof the July23rd Revolution) (Cairo n.d., p. 235). BothRafat and Ramadan,it is pointedout, exercisehindsight in criticisingthe Decree-lawof 1952as beinga beginningof the erosionof constitutionalgovernment. Ra'fat had been the headof theseciion of theMailis al-dawla that had issuedthe fatwaon whichthis decree-lawwas based.Ramadan, Hamrush, and Hasanall quoteSuli- man Hafiz, al-Sanhuri'sdeputy in the Mailisaldawla) as saying:'I, togetherwith al-Sanhuri,brought aboutthe victorywe wantedfrom 'Ali Maher"(quoted in Shakra,(1985), pp. 17S-176).'Ali Maher,party and Palaceintimate and sometimestrongman of Egyptianpolitics, had been installedby the FreeOfficers as headof a civiliancabinet to run the government.

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Al-Sanhuriis saidto havebeen working on the draftof a new constitutionfor Egypt dllring the early period of the Revolution,(Gami'i, (1972)). He was known to have been among the proponentsof a returnto consiitutionalrule and continuedto be a defenderof the Majlisal-dawla against governmerlt interference. The issue of return to civilianrule became part of the powerstruggle both withinthe RevolutionaryCom- mandCouncil (RCC) and outside) and eruptedinto whathas gone down in the history of Egypt as "the Crisisof March"of 1954. On 26 March 1954 the Bar Associationhad a turbulentmeeting where demands were madefor a returnto civiliangovernment. On 29 Marchthe RCCannounced that it would continueto functionuntil the end of the sCtransitionperiod" in January1959 (Ziadeh (1968), pp. 15S157). On 29 Marchalso, al-Sanhuriwas ousted by force from the Mailisal-dazvla. Mass demonstrationsertlpted) reaching their peak on 29 Marcharld demonstrators surroundedthe buiIdingof the Mailis al-dawlain Giza. Al-Sanhuriwas attackedby some of the demonstrators"who had been misledby biasedinformation circulated by some opportunists",according to a statementby the Ministerof Interior.They "drew blood' and al-Sanhuriwas takenhome by SalahSalem. Nasser visited him laterin the eveningto check on his condition(al-Ahram, 30 March1954). It is believed that "some army elements"had incited the mob and instigatedthe attack (Ziadeh, (1968), p. 156) It is claimedthat the reasonfor the assaulton the Mailisal-dawla and al-Sanhuriat that timein particularwas the publicationin al-Akh- bar(newspaper) that the Mailis al-dawlawas 'saboutto issue deerees(sac) against the Revolueon . . . (and) it had been rumoured that Dr al-Sanhuri was to become Prime Minister for the four months until the election of a constituent assembly>'(Shakra) (1985) p. 590). Whatever was fact or fiction from that murky episode, on 16 April 1954: the names were publishedof 38 leading poliiicianswho, becausethey served as ministers betweenFebruary 6) 1942and July 23, 1952and belongedto the Wafd, Liberal-Constitution- alist)or Saadistparties, are deprived of theirpolitical rights for 10 years.(The Times, London, 17 April 1954) They were C'heldto blamefor the stateof corruptionwhich pervaded Egypt7s political life" from the date when the Brltish governmenthad sent tanks to the Palace to impose a Wafd governmenton King Farouk. Al-Sanhuri'sname was, of course, amongthem.

XI. SYNTHESIS OF THEORY AND PRACTICE lNheMajor Treatises The incidentat the Mailisal-dawla) followed by the decreenaming al-Sanhuri as one of those whose "politicalrights" were taken anvay,effectively ended his public life. Thereafter,he workedat home on al-Wasit,the firstvolume of whichhad appearedin 1952, and for a time continuedto lectureat the Instituteof High ArabStudies. He was also called upon to assist with the draftingof more Arabcodes and basic

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legislaiion.In 1953he had gone to Libyafor thatpurpose, as Libyawanted to abolish its ItaliaIlcode. In 1959he went eo Kuwait,where he decidedagainst providing a civil code, but includedmuch of what had constitutedother civil codes in the Kuwaiti commercialcode, provideda mantimelaw, a law of compensation,and a law establishingthe primarycourtsw He also workedon the constitutionsof Sudanand Bahrain.He was askedlo go to the UAE to drafttheir federal legislation but ill healthprevented him fromtravelling to observelocal circumstances, something he considerednecessary for the draftingof legislaiion. Out of his lecturesat the ArabStudies Institute on comparativelaw cameMasadir al-haqqji al-fiqhal-islami, a six-partwork which is now publishedin two volumes(al- Sanhuri,(195F1957)). The title, in the wordsof Linantde Bellefonds,who translates it into Frenchas "Lessources du droil subjectif', is "somewhatconfusing". He explains that it is "a study of the ruleswhich the free will (volontet)should take into account when thatwill is appliedto posiiivelaw (quandcelle-ci est appelee a avoirdes effiets jun- diques)"(Bellefonds, (1958), p. 477). The work, continuesBellefonds, is an examinationof a questionthat has engaged the attentionof modernMuslim jurists, namely to extracta generaltheory of legal actionfrom the dispersedelements in the greatclassical treatises which do not attempt to synthesise.That which distinguishesal-Sanhuri's work from others is the manner (lXespnl)in which the workis approached.Thanks to his long experiencein Western jurisprudencehe has an ability,lacking in otherwriters, to give to legalphenomena) includingthat of Muslimlaw, a universaland permanent character, "thought by some to be missingfrom Muslim law" (p. 477). Al-Sanhuri,in his prefaceto the Masadiraexplains what he means: Masadiral-haqq are the bases from which right, legally speaking, derives; this right is a benefit having monetary value (qimamaliyya) which the law protects. We are not concerned here with public rights or rights connected to personal status because) legally speaking they do not have a monetary value. We are confining ourselves to rights having monetary value. Such rights are personal and material, as they are designated in Western jurisprudence. (al-Sanhuri, (1954)> p. S) He explainsfurther; In Western law there is an esseniial distmciion between personal right (al-haqqal-shakhsi) and

material right (al-haqqal-'ain29. It is the spinal column in Western law which derives from Roman law, and the source of this right, whether personal or material, is the most precise of subjects, although it is most vague in Western law. We will attempt here to specify them in Western law and then deal with them in Islc law. That way we will put Islamic law beside Western law as regards those features that have central importance .... We will deal with Islamic law in the way we deal with Western law to see whether personal and material right in Islamic law is to be found in the sense known in that Western law which derives from Roman law, and whether we can attribute all these sources to legal conveyance and legal fact in the meaning known in Western law. (p. 5) Bellefonds,both at the beginningof his reviewof this andagain in closing,recom- mends at the workbe translatedso that it "canbe put in the handsof all jurists" (Bellefonds,(1958), p. 478). Sincethis hasnot occurredwe can, perhaps)consider it a

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 203 hereticalnotion. The "heresy"is, of course,to suggestthat basic areas of concernto Westernjurisprudence could benefit by comparisonwith the IslamicShari'a, or that theremight possibly be somethingvaluable in theShan'a, not just for orientalist scho- larsbut for Western jurists. Bellefondscomments further on the valueof al-Sanhuri'swork in anotherreview writtenwhen the fifth volume was published. As al-Sanhurihas maintained throughouthis writings, this reviewer comments, perhaps there may be principlesof justicein Islamthat can be considered"more just" than principles in correspondinglegal areas in thelaws of theWest. The construciions of the jurists of Islam in the area of agency . . . are not only in advance of the last stage of Roman law, but in many respects they show themselves superior to the systems presently prevailing in the West. (Bellefonds, (1959), p. 638) Anothernoteworthy feature of this workof al-Sanhurireferred to by Bellefonds concernsobligation. Al-Sanhuri, he says,takes the opportunityin referenceto this subject: to excavate the Muslim notion of usury and indicate its evoluiion, providing a study which is probably the most valuable that we have on this question; andBellefonds reminds us thatMuslim law is "particularlycomplex in its intentionto preventall charlce and illicit profit in legalrelations" (Bellefonds, (1958), p. 477). The matterof usuryin Islamiclaw seems to engendergreat interest in Islamiclaw circlesin bothEast and West. Bellefonds' comments quoted above are particularly interestingin the light of commentson the subjectby anotherscholar, Majid Khadduri,one who straddlesboth East and West. In referenceto how al-Sanhuri dealtwith the problem of theprohibition of "usury"in Islamiclaw, Khadduri notes: Drafting the Iraqi Civil Code, Sanhuri consciously avoided grappling with the problem of interest, partly because it was not dealt with in the Majalla,the code that had been in force in Iraq, and partly because it would arouse the opposition of scholars who considered it contrary to Islamic standards. In practice, however, interest had already become part of the economic system, notwithstanding that its use in business trarusactionshad yet to be jusiified. In Egypt, the situaeon was somewhat different from Iraq as its former civil code, a replica of the French Civil Code, took interest for granted. (Khadduri, (1984), p. 208) Whenal-Sanhuri revised the codes "in accordancewith Islamicstandards" he should,according to Khadduri,have justified interest "on Islamic grounds". It is his claimthat al-Sanhuri did not do so. Somepeople, Khadduri continue, agree that: a distinciion between usury as a transaciion between money lenders (murabin),and interest as a transactiorl between economic instituiions. . . and investors must be made. . . Sanhuri, accepting without hesitaiion the disiinciion between interest and usury, recognized interest but he failed to provide a raiionale for it. (p. 209) Dr Khadduriapproaches the matterof the use of Islamiclaw for the civil codes fromthe point of viewof therevision being "in accordance with Islamic standards." It is my contentionthat such a descriptionof al-Sanhuri'spurpose does not beginto encompassthe complexity of themethod of comparativelaw which he haddeveloped andwith which he wasworking. His method,moreover, contains a certaindialectic.

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions ARAB 204 LAW QUARTERLY He not only posited Islamie standardsagainst the existingeode, but also included usage of that eode in Egypt-its interpretationand applieationby the Egyptian eourts.In addition,he eonsideredthe most recentinnovations of Westernlegal thinking as it eoneernedthe requirementsfor "justiee" of partieular"modern" eonditions. In this most sensitivematter of usury/interestas referredto by the abovementioned two eommentatorson al-Sanhuri'swork, one ean demonstrate,I believe,al-Sanhuri's methodand the distinetionhe makesbetween the "seientifiestage" of workand the 4'legislaiivestage" in the refurbishingof Islamielaw for moderr;use. The Masadir representswork of the "seientifiestage" essentially. There, as Bellefondsexpresses it, he "exeavates";that is, he exploresthe waysin whiehlegal concepts have been dealt with by varioussehools of Islaniielaw and the greatIslamie scholars of jurisprudence, how these eoneeptshave beeomeelaborated, and in whatways they have developed and ehangedover the eourse of the eenturiesand from one legal mind to the next. Thatthere is a progressionor developmentin thinkingof the Islamiescholars (if only by virtueof havingto apply eonceptsto new circumstanees)is takenfor granted.In "exeavations"-archeologieal or legal-one findseaeh succeedingconstruction built upon structureswhich were developedpreviously. The plight of Islamic law in "moderntimes," as I read al-Sanhuri'sformulation of the issue, is not that it did historieallyprogress not and not that it cannot,but ratherthat great legal minds workingon legal stopped problemsin the light of new circumstancesand thus the toevolve. law ceased Therefore,it would seem that it is not an issue of "the theoreticalquestion of the harmonybetween Western and Islamic legal standards"that Khadduriclaims al-Sanhuridoes not resolve(p. 209n)but rathera concernwith turningagain to developingthe Islaniiclegal concepts,this time in the lightof new ("modern")conditions. Thatthere is no "harmony"is not the point. We shouldnot expectthere to be one. OtherwiseIslamie law would not be distinctiveand "one of the tems", world'sgreat legal sys- and the exereiseof developinga comparativelaw within referenee al-Sanhuri'sframe of with Islamiclaw as a mainpillar would have no meaning. Therefore,in orderfor the theoretiealstatus of "usury"to be grappledwith under moderneonditions one must understandthe variationsof circumstaneesand contexts underwhieh it has been dealt with in the past. If al-Sanhuri"readily aceepts" that "interest"is distinguishable from "usury"then his excavationspresumably must haveshown him that "interest" neitherhas nor canbe consideredto be the evolution ofthe eoneeptof "usury,"and the rationalefor "interest"rests elsewhere. And thatis wherethe examinationof "modern"systems enters. As Bellefondsnotes, eachvolume of theMasadir has a twofold ation. comparativeorganis- There is an internalcomparison between the doctrinesof of the differentschools Muslimlaw and relationshipsbetween them, and thena eeptsin considerationof legalcon- "the greatEuropean legal systems, ancient and modern" p.477). (Bellefonds,(1958), Some eoneeptsof what eonstitutes"just" legal relationsare the same or similar, somedifferent. Some eoneepts appearin one systemand do not appearin another. Howwas Romanlaw glossed and laterrevised for use in the Europeaneodes? A study ofmodern legal systems moreoverimplies a coneernwith how these statesdealt with

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 205 theirown "legislative stage". Usuryand interest are distinguished in modern law; usurywas Western condemnedby both historicalsystems. The recordof whereand and how the when distinciionappeared in those systemsand whereit has, which is the stuff of al-Sanhuri's"comparative-historical method" is composed. The Masadir,as the recordof al-Sanhuri'swork in his prescribed"scientific is colossalin scope: stage", Rarelyare modern scholars of jurisprudenceemboldened to comparethe Muslimsystem to of other civilizaiions.The that gulf separaiingthem appearstoo large. It takes all the al-Sanhurito succeedin learriingof construciinga bridgebetween them. (Bellefonds,(1958), p. 478) The "bridge"as should be noted, is not "harmony",as such but identificationof theoreticaland actuallegal relationshipsand conceptsof lawr of justice---which eachreflects. Comparison on a basisof theoryis an entirelydifferent proposition than casuistic comparisons.And it is the former wherein is to be found the core of al-Sanhuri'smethod. Al-Sanhuri'swork on the moderncodes had indeed, as Belle- fondsnotes, "servedhim well" (p. 478). It certainlysensitised him to the matterof theoreticalstructures underlying isolated legal concepts and them. thereforeconnecting Then there is the matterof the rich detailthat has been producedin the courseof thedevelopment of theory. Mostmodern writers, when dealing with the classicalwriters, are not able, as al-Sanhuriis, to separatesharply between that which is their own innovaiionand that which has been taken fromelsewhere. If one day this work is translatedthe Westernreader will be amazedby the richnessof informationconcernlng, notably,developments pointed out by the authorin Ger- man,Roman, Latin, etc. legal systems,that his methodof discoveringrelationships with the Muslimsystem have led him to study. (p. 478) Wherethe Masadirrecords the dialecticbetween ancient and modern,Eastern and Westernlegal systems, al-Wasitcontains another kind of dialectic,or rather,a new, moreadvanced, synthesis of theoryand practicethat the new Civil Code of Egypt- andby extensiorlthose of otherArab states represents. Al-Sanhurihad been working on the synthesis of theory and practice, in fact, throughouthis life, and his work had a pattern.As he tells us in the introductionto thefirst volume of al-Wasit, it is the middle work between the summarywork (al-Waiiz)and the fully elaboratedwork (al-Mabsut). Perhaps the title is best rendered MiddleCommentazy. But there neverwas a mabsat.Al-Sanhuri is quotedas sayingin 1968: Al-Wastlbecame more elaboratedthan I had anticipated.I wantedit to be of medium butit becarnethe long length elaboraiion.I do not believethere is morein me. (Mursi, l9SO)) Itforms, however, the comprehensivetreatise on Egypt'scivil law, writtenby the sonwho was most per- knowledgeableby far as to the meaningand intentionof the pro- visionsof the new code, how and why it had been set out in the way it had, and how it shouldbe interpreted;how it was uniqueand independent as a code, andhow the civil lawof Egypt became,in a word, Egyptianised.

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It is possibleto tracehow he had begunpreparing this workfrom his firstwritings in Arabic.He tells us in the introduciionof al-Mujiz (1938)that he had not intended to issue the mujiz until after he had come out with the mabsut) for which he had alreadybrought out the first part, Nazanyyalal-aqd in 1934. However,he was to decidethat the need for a mujizwas at leastas great.He had in mxnd,he says, "a concise volume,not an abridgement,to makeit detailedbut withoutelaboraiion, to meet generalneeds as well as thoseof the judiciary".Because he was particularlycognisant of the needs of the latter, "many judicialdecisions were includedin the notes", althoughhe restrictedhimself "to Egypiiancourt decisions")that is, to what he believedwas neededby the practitionerof law. Thereis no differencebetween the two books(Nazanyyat al-'aqd and al-Mujiz) except that in the abridgementthe issueshave been made more concise. Whoever reads al-Mujiz can proceed to ffie mabsutwhich is more detailed.The maiiz pavesthe way for the mabs1lt.(al-Sanhuri (1938c),p. 1)

In 1966he publishedanother shortened version, al-Wajiz,l7 whichis the firstthree books of al-Wasitsummarised. In it, however and this is how it primarilydiffers fromthe mujiz the theoryof obligationsin Egypiianjurisprudence is revisedaccord- ing to the changesin the new CivilCode. In these volumes'Abd al-Razzaqal-Sanhuri scholar,law-giver, and jurist has producedfor Egyptand the worlda scholarshipof comparativejurisprudence on civil law unrivalledin breadthand scope, whereinIslamic law is prominentlyfeatured, dealtwith in termsof theoryand as contemporarypractice, and is placedbeside and treatedon a parwith "thegreat legal systems ancient and modern". But the worlddoes not knowabout these works, and few in Egyptindicate that they realise,other than in verygeneral terms, what they comprehend.

XII. THE LEGAL TERRAIN OF ARAB UNI-TY

Towardsan ArabCivil Code

Whereasthere has been an altnostcomplete scholarly silence in Egypton al-Sanhuri) anarticle he publishedin 1962 aboutthe possibilityof a uniformArab civil code has occasionedrecent commentin a paperby Tariqal-Bishri) an Egyptianscholar and authorwho is also a seniorjudge in theMailis al-dawla. This paper(al-Bishri) ( 1985)) considers"the legal questionn'as regardsthe statusof the IslamicShari'a versus that ofthe positivelaw. It was presentedat a colloquiumon "The Heritageand Contem- poraryChallenges to the ArabNation" held in Cairoduring September 1984 under theauspices of the Centerfor ArabUnity Studies.The applicationof Islaniiclaw con-

L7 Al-waiizand al-mujiz have almost the samemeaIiing: "summary" or "outline"or a synonymthereof, indicatinga shortened or abbreviatedwork

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 207 tinues to be an issue in contemporaryEgyptian politics, while "the heritage"(al- turath)is a topic of researchand discussionengendering much interestin Egypt's intellectualcircles. In his introductionto al-Wasital-Sanhuri had expresseda hope that the time would come when the juristsof the Arabcountries would co-operatein producingan Arab civil code "underpinnedby Islamicjurisprudence and the lawsof all the countriesthat have participatedin the Arabcivtilization" (al-Sanhuri, (1952) w). In 1962he wrote: I believethat Arab unity is a naturalthing as the Arabpeoples are one naiion;. . . the strongest supportof Arabunity is culturalutiity, and the most importantbasis for unifyingculture is a unifiedlegal culture. (al-Sanhuri, (1962), p. 7)

To know whatmay be possiblefor developmentin the future"a thoroughstudy of the past is necessary"and then, "anexamination of the present"(p. 7). In his detailingof the task ahead, thereare strongechoes of the projectfor the futurehe had outlined more than 35 yearsearlier in Le Califat. The "thoroughstudy of the past" that al-Sanhurirecommends in 1962 has two aspects, which in turn are each dividedinto stages:(1) a study of the "foundingof Islamicjurisprudence", first "in the ages beforethe time of the foundingof the four main schools'X,then "a considerationof the traditionalviews and the differenttrends in legal thirlkingincluding the rules underlyingthe work of the Islamicjurists"; (2) then comes the workof comparativestudy of the differentschools, not only the four main ones, but othersas well "to ascertainwhat is similarand whatdifferent in legal thinking".Then comesthe work of comparingthem with modernWestern jurisprudence: to see wherethe Islamicjurist stopped in developingthe law, whetherin the basicrules or in the detailedprovisions. Then these detailsshould be developedon the basisthat the Islamicjurists setn using their wording,style and logic. When Islamic jurisprudenceneeds development) develop it, but when it conformsto the civilizaiionof the presentage, leave it as it is. (pp. 27-28)

Such studieswill be arduous,he says, and will take "scoresof years"before there can be "a renaissancelike that which occurredin Romarllaw", so that Islamiclaw "will be suitablefor the modernage" (p. 28). He emphasisesthat such an activitydoes not involve simply takingprecepts of Westernlaw and "tryingto make them come from Islamiclaw or claimingthat Western law is Islamiclaw" (p. 29). This articleindicates two things. Firstly,al-Sanhuri has remainedfirm in the essen- tials of both the task aheadand the methodfor makingthe Shan'a"suitable for the modernage". Secondly,it also indicatesthat al-Sanhuridoes not considerhimself to have completedthe task as specified.There is still plenty of work remainingto be done by others. The "past"as al-Sanhurispecifies it, also includes the experiencesof Arab countries. Thereare threesituations: (1) thosestates which continued with an "unwritten" (i.e. uncodified)version of the IslamicShari'a (Saudi Arabiaand Yemen);(2) those states which were underOttoman control during the secondhalf of the l9th century, where the Majallawas applied (Syria, Palestine,East Jordan,Iraq and Libya) and

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions 208 ARAB LAW QUARTERLY wherethis law remainedthe civil law afterthe fall of the Ottomanempire and the adventof the Frenchand Britishmandates (and in the case of Libya, Italianrule). OI11YLebanon, he says,changed its civillaw tO one patterned on the Frenchcode; and (3) those stateswhich borrowedFrench law (Egypt,Lebanon, Tunisia, Algerian and Morocco)(pp. W10). The implicaiionhere is thatthere is not such greatlegal diver- sity in the Arabworld as might be assumed.Moreover, prior tO the l9th century,he pointsout, uncodifiedIslamic jurisprudence was applied throughout the region(p. 8). In termsof legal reform)says al-Sanhuri,the Arabworld has passedthrough tWO stages:(1) the codification-albeit pariial-of Islamiclaw concerningcivil malters (whichhe specifiesas concerningfinancial transactions (muXamalat al-maliyya) and coveringreal and personalrights) in the codificationsof the Majallaand the Murshid al-hayran;and (2) the new civil codesof Egyptarld Iraq. This secondstage constitutes "thepresent" for al-Sanhuri,in termsof boththeory and practice. The Iraqi code takes the Majallaas its main source, supplementedwith several recentlyenacted Iraqi laws (mainlythe LandLaw and otherlaws regarding property rights)and is closerto the Shari'athan is the EgyptianCivil Codewhich took as its basicstarting point the old Egyptiancivil codes.However, the new Egyptiancode was neededfor the Iraqicode to be completed.The new Egyptiancode servedas a model, al-Sanhurisays, in termsof the divisionsused to organisethe Iraqimaterial, and for the additionallegal rules needed to fill in certainareas of the civil law, textswere taken fromthe Egyptiancode (pp. 1g20). It should be rememberedthat in his initial effortsto producea new Iraqi code (suprapart V) al-Sanhurihad begun with a synthesisof "modernWestern codes", and his workon these codeshad beencompleted by the time he returnedto de Iraqicode in 1943after his completionof the draftof the Egyptiancode. By the sametoken, his workon the Iraqicode, togetherwith his scholarshipand teaching of comparativelaw usingthe Majallaand the Murshid,had providedhim the basis for his work on the Islamiclaw provisionsin the Egyptiancode. The experiencesgained from his initial workin Iraq,comments the abovementionedEgyptian scholar: openedIslaniic jurisprudence for him as it hadnot beenopened for him before, . . . therehe wasconfronted with the problemsof its applicaiions,and itS intricacies,procedures, and instru- mentaliiies.(al-Bishri, (1985), p. 633)

The Iraqicode, saysal-Sanhuri, was "thefirst modern code to jointogether Islamic jurisprudenceand modernWestern law on an equal basis", and it was "the most importantexperience in moderncivil codificaiion"(al-Sanhuri, (1962), p. 24). The newIraqi code therefore"takes great strides" in al-Sanhuri's;'second stage". Init we put togetherthe codifiedprovisions of the Islamiclaw and set thembeside Western law, asrepresented in the new Egyptiancode " . . and this pavesthe way for the third and final stage,the re-birthof Islamicjurisprudence) . . . for the daywhen this jurisprudencebecomes thesource for moderncilril provisions, when it becomesas well-adaptedtO the currentsof the civilizaiionof the presentage as the most modernand progressive codes. (pp. 22-23)

Beforethis can happen,however, the detailedwork of developingIslarnic jurisprudence(indicated above) must takeplace.

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Islamiclaw is asmuch an archaic law as is Romanlaw, but it is noless precise in its logic,or in strengthof expression,or in beingable to develop.(p. 23) The outlinesof the futuredialectic are thus ableto be detected,if al-Sanhuri'sspe- cificationsare followed:Islamic legal theoryversus Western legal rules, and when the Westernrules reflecta differentunderlying theory they areto be eliminatedand new rulesput in theirplace, rules that are reflectiveof Islamiclegal theory. The goal towardswhich I an strivingis that therewill be an Arabcivil code derivedprimarily fromthe IslaIIiicShari'a. (p. 23) In light of the fact that al-Sanhuri'swork would seem to straddiethe two issues which, more than any others,energise scholarship and politicsin Egyptand the Arab world - Arabunity and eheapplication of Islamiclaw-the virtualoblivion into which al-Sanhuri'swork has fallen may, perhaps, seem surprising.Certainly the political showdownwith the leadersof the 1952 Revolutionover the sanctityof the judiciary and the returnto a rule of law and constitutionthat endedhis publiclife in 1954 has had somethingto do with this. But thereis also, it wouldseem, anotherconsideration. Fromhis earliestwritings on the Caliphate,throughout his laterscholarship and code draftings,al-Sanhuri's work had a determinedsecular orientation. He consistently maintainedthat Islamas civilisationis separablefrom Islam as religion,and that the developmentof Islamicjurisprudence concerned the former. Al-Sanhuri'ssecularism certainly differs from that of someonelike 'Abd al-Raziq. In the contextof the debateof the 1920s(supra part III) 'Abdal-Raziq maintained that the Caliphatehad no basis in law, while al-Sanhuripresented the Caliphateas partof the public law of Islam. However, presenttrends which call for the renewedappli- cationof Islamiclaw, generallydo not acceptthat Islamiclaw can be separatedfrom religion.Exemplifying such trends,Tariq al-Bishri remarks: To the end, the matterfor him remainedstrictly defined within the frameworkof pure, uncon- taniinatedjurisprudeIlce, without conneciingthis jurisprudencewith religionand its sources and originsin the Koranand the Sunna.(al-Bishri, (1985), p. 633) The chargeof not connectingIslamic jurisprudence with religionis certainlycor- rect. Nothing additionalabout this needs to be said. But that he was operatingin a realmof "purejurisprudence" unconnected with its sourcesin the Koranand Sunna, I believe, is not tenable,inasmuch as that is preciselyfrom where the IslamicShurina, as developedby the legal scholarsof Islam,originally derives. This complaintconcerning al-Sanhuris secularbias does, however, signify the dominantapproach to the revivalof Islamiclaw todayand why it is often associated with "Islamicfundamentalism".Fundamentalism semanticallyandactually-signi- fies going back to origins.In the contextof Islamiclaw, it meansignoring the centuries of legal developmentand the jurisprudenceof the scholarsin favor of direct . nterpretatlon. o t ze orlgma. . sources. The fundamerltalistapproach is for the masses, the method of al-Sanhuriis for those learnedin the law. Our age is for the masses,not for jurist-scholars,and that perhaps is the real reason why one eulogy to al-Sanhuriwas entitled: "The Man WhomWe Forgot"(Gami'i, (1972)).

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EPILOGUE ISLAMIC LAW AND CIVIL CODE Recent Developments 'Abd al-Razzaqal-Sanhuri may have been relegatedto the statusof minorpolitical actor,half forgotten,by the historicalmemory of Egypt. The Civil Code, however, remainsthe basiclaw of Egypt, and al-Sanhuri'smulti-volumed commentary is still the authoritativebasis for its interpretation. The issue of islamicisingthe laws, however,is also very muchpart of the present scene.Although more or less dormantduring the 1950sand 1960s,the issuewas to re- emergeat the beginningof the 1970s.Inevitably, the questionof the Islamiccontent of the CivilCode also appeared. First camea new consiitutionin 1971,the firstconstitution in Egypt'smodern his- torywhich provided explicitly that "theShari'a is a principalsource of (Egypt's)law" (ARE,(1985a), p. 998;Habachy, (1985), p. 105).In 1971,however, constitutionalism was at a low ebb, andlittle attentionwas paidat the time to the particularinnovation in Article2. Al-Sanhurihad, afterall, includedsimilar language in the firstarticle of the CivilCode. Then therewas a movementon threefronts: The constitutionalityof the CivilCode was challengedin the courts,committees of the Mailisal-sha'b (parliament) began drafting"Islamic codes", and Article2 of the 1971 Constitutionwas amended. The constitutionalissue derivedfrom a case whichwas broughtbefore the Majlis al-dawlaby one, FuadGudah, against al-Azhar University to collectan unpaiddebt of someLE 592, beingthe balanceowed on the priceof surgicalinstrumerlts supplied to the Facultyof Medicine.The courtheld for the plaintiffand directed al-Azhar to pay the amountowing together with interest at therate of 4 percent. The Rectorof al-Azhar appealed.In the courseof the appealproceedings, the constitutionalityof Article226 of the CivilCode was challenged. Article 226 specifiesthat interest shall be chargedon debtsfrom the datea judicialclaim is submitted.In the pleaof non-constitutionalityit was contendedthat Article 226 was in conflictwith the Shan'a since the Shan'a for- bids the paymentof riba(usually translated as "interest").In its sessionof 3 April 1978the High AdministrativeCourt suspended its hearingsand sent the case to the ConstitutionalCourt (ARE, (1985a),p. 993). Also in 1978,in its sessionof 17 December,the Mailisal-sha'b passed a resolution forniinga specialcommittee to study proposalsfor applyingthe rules of the Shari'a and for theircodification (ARE, (1982),p. 33).18On 20 June 1982special committees wereformed to reviewthe workof the committeesfor codifyingthe Shan'a. On 1 July 1982 reportsof specialcommittees were subrIiittedtogether with draftcodes which were on that date referredto the Legislativeand ConstitutionalCommittee (ARE, (1982),pp. 3241; ARE, (1985b),p. 35). The draftcodes were printed as appendices to the transcriptof thatsession of theMailis and included the following:

18 There was an indication by Mumtaz Nassar, speaking in the Mailisal-sha'b, 4 May 1985, however, that work in this direction of some kind may have begun earlier:"Since 1976 the Mailis(al-sha'b) began the preparationof studies with the formation of committees and gathering materials, a number of the studies which . . . (concerned) legislating the Shari'ain all the texts of the present laws". (ARE, (1985b), p. 18)

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Draft Law of CivilTransactions (more than 1,000 articles); -- Draft Law of Evidence(181 articles); Draft Law of Liiigation(513 ariicles); Draft Law of CriminalPenalties (635 articles); -Draft Law of MaritimeCommerce (443 ariicles); -Draft Law of Commerce(776 ariicles);(1985b), p. 19)19 No furtheraction was takenin the Mailis until 4 May 1985. Meanwhile,in May 1980 the Constitutionof 1971 was amended.Passed by the Majlisal-sha'b and sllbmittedto referendumon 22 May 1980the languageof Article2 of the 1971Constitution henceforthwas to read: Islamis the religionof the Stateand Arabicis its officiallanguage. Islamic jurisprudence is the principalsource of legislation.(ARE, (1980),p. 7) (emphasisadded) The purposeof this amendment,said the special committeewhich had draftedthe amendmentin a reportsubmitted to and approvedby the Mailisal-sha'b in July 1979, was "to requirethe Mailisal-shanb, when seekinga ruleof law, to haverecourse to the rulesof the Shan'a to the exclusionof any othersystem of law"and in orderto insure that "legislationdoes not contradictthe foundationsand generalprinciples of the Shari'a"(quoted in ARE, (1985a),p. 997). The GeneralCommittee of the Majlisal- shab in a reportapproved on 15 September1981 was more specificas to the meaning of the amendment: This amendrnentmeans that it is no longerpossible in the futureto enactany legislation which contradictsthe rulingsof Islamiclaw. It also meansthe necessityof reviewingthe laws which werein effect beforethe applicationof the Constitutionof 1971and the amendingof them to bring them into conformity with the rules of the Shari'a.(quoted in ARE, ( 1985a), p. 998/Habachy,(1985) p. 105) However,the Reportcautions that: thechange from the legalsystem presently exisiing in Egypt, . . . tOa completelyIslamic legal systemwill requirepatience and proceedingwith the utmostcare as regardspractical consider- ations.... If the legal system in its entiretyis to be changed,a suitableperiod of iime is neededto allowthe compilationof theselaws and to organizethem within the frameworkof the Koranand Sunna)and the opimonsof the Muslimjurists. (p. 998/p. 105) On 4 May 1985, the decision of the ConstitutionalCourt in the al-Azharcase was announced.Simultaneously, the Mailisal-sha'b was debatingthe matterof the applicationof the Shan'a in Egypt. In rejectingthe plea of the non-constitutionalityof Article226 of the CivilCode the Courtsaid: Onlythe legal enactInentsissued after the cominginto effect of the obligationto conformto IslamicLaw are affected;. . . legalenactments which ante-dated the amendmentare not affec- tedby the obligaiionto conformbecause they werein existencebefore that limitationbecame duefor implementaiion.(p. 9971p. 104)

19As surrunarisedby DeputySheikh Salah Abu Isma'il during the debateof 4 May1985. Although these draftcodes appeared as partof the proceedingsof the Mailisal-sha'b and bear their imprint, circulation has beenextremely limited.

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The "truepurpose of the 1980amendment to Article20 of the Constitution",said the Court,is that it is intendedto be "a limitationon the powerof the legislaliveauth- ority"as to the sourcesfrom which it shoulddraw its rulesof law(p. 999/p. 105). Otherwise,the implicationwould be that "all past legislationwhich contradicts Shari'aprinciples should be scrapped",said the Court,and such a situationwould "clearlylead to contradictionsand confusion in the judicialprocess in a mannerwhich wouldthreaten stability". Moreover: hadthe legislatorof the Consiituiionwanted to incorporatethe principlesof theShari'a into the Consiituiionspecifically, or had he intendedthat these principlesbe enforcedby the courts withoutthe need to formulatethem as specificlegislaiive texts according to the set procedures of the Consiituiion--he did not lack the authorityso to provide,clearly and explicitly. (p. 999/ p. 105-106) However,restricting the applicabilityof the constitutionalamendment to futurelegislation "does not exempt the legislatorfrom responsibilityfor the past laws", con- tinuedthe Court,especially those "in contradictionto the principlesof the Shari'a". It is, moreover,the legislator'sresponsibility "to takethe initiativein siftingout any infringementof the aforementionedprinciples from the texts of these laws". Ulti- mately,in orderthat there be harmonybetween past and futurelegislation, "they all mustagree with theseprinciples" (pp. 999-1000/p.106). In assessingthe significanceof this decision,Saba Habachy, friend and contemporary of al-Sanhuri,has highlightedtwo featuresfor particularcomment. In denying retroactiveeffect to the amendmentto Article2 andinterpreting the changeto mean that the Sharinais to be the main sourceoffuture legislation, "the responsibilityfor implementingArticle 2 of the Constitutionas amended(has been) shiftedfrom the judicialto the legislativeauthority" (Habachy, (1986), p. 240). He aIsonotes that the Courthas quoteda "significantphrase" from preparatory reports concerning the pro- posedamendment to Article2 of the Constitution.This phrasedeprecates: the changefrom the presentlegal systemof Egyptwhich goes backmore than one hundred yearsand its replacementby a completesystem of Islarniclaw. The sourceof the quotedlanguage is the Reportof the GeneralCommittee of the Maj- lis al-sha'bat the time the Amendmentwas beingconsidered (see above).The Court, commentsDr Habachy,"recognises . . . the necessityof changeof law in the Shan'a accordingto the requirementsof time andplace" (p. 240). The languagequoted by the Court,referred to above, carriesthe furtherimpli- cation,of course,that the presentlegal system is alsopart of Egypt'slegal heritage. But the prime significanceof this decision,although based on a legal technicality and addingnothing to the "centuries-oldargument" concernint, interest, is, for Dr Habachy,"that it has saved, not merelyArticle 226, but the entire new Egyptian Codeof ProfessorSanhuri of whichthe articlein questionis a part"(p. 240). The savingof al-Sanhuri'sCivil Codewith one fell swoopof the judicialpen went largelyunnoticed because, on the sameday, Egypt'sConstitutional Court announced anotherdecision, anxiously awaited for manymonths and much morepublicised. It was a case concerningfamily law, also broughtas a constitutionalchallenge on the strengthof the amendedArticle 2 of the Constitution,this timeto the PersonalStatus

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions AL-SANHURI AND ISLAMIC LAW 213 Law of 1979("Jihan's Law")which was declaredunconstitutional. This law had done such unspeakably 'Cun-Islamic''things as allowa divorcedwife to continueto live with her childrenin the apartrnentof marriage,and give a wife the rightto applyfor a div- orce when her husbandmarried another woman.20 The Egyptiangeneral public was at that momentin historyconsiderably more interestedin apartments)divorces and polygamousmarriages than in the savingof the CivilCode. Nor was there, generallyspeaking, public consciousnessof the debatethat day in same the Maylisal-sha'b on the same issue the meaning of the amendedArticle 2. Constitutions The MailisaZ-shaXb debate took placepursuant to the submission in that session of the Reportof the Committeeon Religiousand SocialAffairs, the thirdsection of which wasentitled, <'Revisionof the lawsinsofar as they arein contra- dictionwith the rules of the Shari'a'.The Reportinterprets the constitutionalamendment as meaning: that the present laws should be reviewed in stages, in a scieniific manner, and those features revised that contradict the principles of the a . . Shan'a, matter on which all parties and political Orlentat1ons agree. Whenthe presentlegislative texts are reviewed: what is not in contradiction with the principles of the Shan'a should be left alone, while that which does contradict the rules and principles of the Shari'ashould be revised) having concern for legisIative stability, and the judicial and jurisprudential heritage; and t}}e revisions should be in harmony with the condiiions of society. (ARE, (1985b), p. 13) TheReport speaks of the CivilCode as <'thebasic law and supportof the legal system ofthe State"and refersto a decisionof the Makkamatal-naqd (Court of Cassation)in itssession of 27 July 1980: which affirmed that the rules of the present Civil Code were enacted after lengthy study and reflection. Morever) the majority of them have their origin in the rules of the Shan'a, except in afew rare instances, as is confirmed in the explanatory memorandum (of the Code) where the origin of these rules in Islartiic jurisprudence is stated . .: (Therefore) there is no need to revise the rules of the present civil law; it is enough to amend the texts that Shan'a.(p. 14) conflict with the Anumber of deputies spoke. Commentsranged from expressionof supportfor the partof the Report that spoke of the applicationof Islamiclegislation not requiring abolitionof all other laws)to the callingof attentionof the deputiesto the fact that the draftIslamic codes had been languishingin committeesince 1982.All attestedto support their for the Shari'aand severalspoke of the ;'purificationof the laws" The government had a positionpaper on the issue, andat the closeof the debatethe Government's communicationwas read. There were six points, the generalsense of whichis as follows: (1) Egypt's legal system is one of stable laws which have their basis in the Shan'a)the Civil Codebeing a good example;

20 The decision of unconstitutionality was, however, based on technical rather than substantive grounds. TheCourt said in its opinion that reform of family laws was not of sufficient urgency to justify the use exceptionalpresidential decree-law of powers delegated by the legislature for use in emergeneies or Mailisal-shayb was in recess. while the

This content downloaded from 128.111.121.42 on Thu, 19 Sep 2013 09:50:31 AM All use subject to JSTOR Terms and Conditions ARAB LAW 214 QUARTERLY (2) The judiciary in Egyptis firmlyestablished with its systemembedded in the constitutionand the lawswhich agree with the principlesof theShan'a; it wouldbe no smallmatter to rebuildsuch a systemand much of valuein pastefforts would be destroyedin the process.Therefore it is preferableto work on developingwhat alreadyexists, accordingto the Shari'a; (3) The principlesof the Islamicreligion call for a societyof equality,justice, sufficiency, toleranceand other qualities of whichwe canbe justlyproud in frontof the wholeworld; and our workis to assuresuch a society; (4) There is consensuson the principlesof the Shan'aconcerning civil transactions;only in somedetails is therecontroversy, and the controversialissues must be studiedcarefully; (5) Egypt has never been isolated from the world and interactswith what happenstoday throughoutthe world;we must find ways to surmountthe present burdensof our internationalcommodity transactions (amounting to morethan fifty per cent of GNP), so thatwe maybenefit from them; (6) All sects of Egyptiansociety accept drawing our legislationfrom the Sharina and the application of Shan'aprinciples concerning such thingsas utility, necess- ity, and the avoidanceof harm.(ARE, (1985b), p. 35) Amotion to approve the Reportof the Committeeon Religiousand SocialAffairs and thestatement of the Governmentwas passedby a show of hands.A motionto bring thedraft codes presentlyin the Legislativeand Constitutional Committee to the floor wasnot submittedto a vote because,the Speakerexplained "yet again",there were presentlyno draft laws or proposalsfor draftlaws beforethe presentsession of the Assembly,any such mattersbefore a previoussession having died with the endingof thatsession. If any memberwished to submitproposals for draftlaws, he must first "clearthe road" of the restrictionsprescribed by the parliamentary (p.35). procedures That is wherethe matterpresently rests. Action on substitutecodes is in abeyance, "Dral-Sanhuri's Civil Code" remainsthe basic civil law of Egypt, and the present governmentthe executiveand the legislature has given formalrecognition to the effortsof al-Sanhuri to constructa law that would be in accordwith the Shan'ain spiritand in as manyparticulars as "modernconditions" permitted.

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