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 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. BRILL is collaborating with JSTOR to digitize, preserve and extend access to Arab Law Quarterly. http://www.jstor.org 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 sum- marisedthe 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 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 183 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 follow- ing 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