// The codification of Sharia
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« on: Mar 10, 2013 02:08 PM »


http://weekly.ahram.org.eg/News/1716/21/The-codification-of-Sharia.aspx

The codification of Islamic Sharia law is a complex process with a long history behind it, something that today’s Islamist groups would do well to understand, writes Ahmad Naguib Roushdy

 Many observers thought that the enactment of Egypt’s new constitution and the setting of a date for the election of the new parliament would mark the start of a new life for the country. But, alas this does not seem to be the case. I am not referring to the continuing demonstrations, unrest and state of chaos in the country. Instead, I am referring to some articles in the new constitution that may be the cause of a debacle for the Egyptian courts.

Article 2 of the new constitution provides, among other things, that the principles of Islamic Sharia law are “the main source of legislation” in Egypt, and Article 219 provides that those principles of Sharia should mean its aggregate connotations, its fundamental and jurisprudential rules, and its sources, as agreed by the Sunni schools and the consensus of the community. Yet, by referring to “legislation”, that is, the act of enacting laws by the legislature, the new constitution continues to recognise the civil law system that has been applied in Egypt since 1875 and was first established under the system of Roman law. Courts in Egypt and in civil law countries such as France and Italy base their judgments on laws enacted by their legislatures.

In common law countries, such as the United States and the UK, the basis of law, or the common law, is not written in statutes but is based on precedents set by judgments of the federal courts (in the US), including the Supreme Court of the United States, or by the House of Lords in the case of the UK. Judges in the US have the authority to review the constitutionality of laws enacted by Congress in matters not treated by the common law, and to amend rules of the common law that have become archaic or unjustified under changes of circumstances. While the US has a written constitution that has been subject to many amendments, the UK’s constitution is unwritten and the latter country’s House of Lords reviews the constitutionality of the laws according to British traditions, something that has recently helped governments there to tighten the shackles on freedom of speech and of the press.

In the civil law system, by contrast, the courts apply the laws as these pertain to the cases coming before them. In doing so, they try to interpret those laws or to resort to interpretations by jurists. Until 1875, Sharia law, which was not codified, was the law of Egypt, and the courts took pains to arrive at their judgments by consulting the voluminous opinions of the Islamic jurists of the Sunni Hanafi school, which was the dominant one in Egypt. In order to reform the legal system and to make the rules more palpable to the public, a civil law code was enacted in 1875, mostly borrowed from the French Code de Napoléon and called the Mixed Civil Code. This was to be applied to foreigners living in Egypt who at the time enjoyed special privileges under the so-called system of capitulations that exempted them from Egyptian law. The code was enacted as the basis for all rights and obligations and for transactions and other matters, and it was followed by other codes, such as the commercial law, the criminal law, the criminal procedure, the civil and commercial procedure, and so on.

Meanwhile, Sharia law continued to be applied to Egyptians except in domestic affairs such as marriage and divorce for non-Muslims who were left to use their own religious rules. In 1881, the government enacted a new code called the National Civil Code which was to be applied to Egyptians except in domestic affairs for Muslims and non-Muslims who continued to be subject to their own religious rules. The laws contained in this code were applied for the next 50 years before some Egyptian judges and jurists suggested that it was time to revise the mixed and civil codes and unite them in a new single code that would reflect contemporary judicial trends in Egypt and changing traditions and circumstances.

The reformers did not intend to borrow foreign rules in this regard, except when necessary. Certainly, they hoped to codify certain rules of the Sharia with the intention of making them more flexible and suitable to apply to non-Egyptian Muslims, except in domestic affairs. Abdel-Razzak Al-Sanhouri, a former judge, professor of law and dean of the Law Faculty at Fouad I University (now Cairo University), and a renowned jurist, was a strong proponent of enacting a single civil code that would incorporate some Islamic rules. In an essay entitled, “What should the revision of the Egyptian civil law be based on?”, published in the records of the National Courts, Al-Sanhouri denied that he was trying to minimise the range and authority of the Sharia. On the contrary, he wrote, “if we wish that authority to extend to transactions, we need to have the benefits of codification.”

Al-Sanhouri had in mind the fact that some jurists had opposed the codification of the Sharia as this in their opinion would have caused a heavy burden to fall on the voluminous opinions of jurists from the four Sunni schools. In spite of this, however, Al-Sanhouri believed that the codification of the Sharia would not be too difficult. He may have had Turkey in mind, which had officially codified the Sharia in its Al-Mejallah code. And he may also have been thinking of the private codification of the Sharia carried out by the famous Egyptian jurist Mohamed Kadri Pasha, who had brought together Sharia provisions as these related to domestic affairs, transactions, and waqf (religious endowments). However, these two codifications were incomplete and neither was officially enacted as the law of Egypt.

Al-Sanhouri pointed out in his article that the Egyptian legislature had already codified some rules of the Sharia, referring to the enactment by the Egyptian government in 1929 of a new law on marriage and divorce that required a minimum age of 16 for women and 18 for men and annulled some forms of divorce that were considered legal before the codification, such as the divorce of an insane person or a person married under duress or under intoxication. Today, some Salafis in Egypt are calling for a reduction in the minimum marriage age for women to nine years if the girl has reached puberty. How can a girl of this age be subjected to such a barbaric form of sexual assault, if not rape, that these Muslims want to legalise? Furthermore, and for the first time, the 1929 law required the authentication of marriage contracts to protect married people’s rights before the courts. These kinds of rules were needed to remove any misguided interpretations of the Sharia by conservative Muslims.

The task of reforming the civil code took several years to complete by a special committee presided over by al-Sanhouri and that was subject to lengthy and comprehensive discussions in parliament and among jurists. Finally, the code was enacted in 1948 and came into force on 15 October 1949. The rules in the new code reflected Egyptian legal precedents, the changes of circumstances and traditions that had taken place over the previous half century, certain rules of Islamic Sharia and other countries’ modern legislation.

There is no doubt in my mind and in the opinion of many Egyptian jurists and of the few Western jurists who have studied the Sharia that it is one of the most advanced legal systems in the world and that it could easily adapt to changing circumstances while  preserving traditions and developments if properly interpreted. Yet, it will not be easy to codify the Sharia without reviewing the voluminous opinions of the Islamic jurists that were often issued centuries ago as well as since the time the present civil code was enacted. It will be necessary to try to reconcile these with modern developments and changes that are for the most part different from 50 years go. 

The intention here is not to deviate from the rules of the Quran and the prophet’s proven Sunna (traditions), but many of these rules have been subject to misguided interpretations by both moderate and ultra-conservative Islamic jurists, Sunni and Shia alike, bearing on all aspects of life and behaviour and on civil transactions, most notably reba (usury), banking, and other forms of modern commercial transactions. This matter could be harmful to Egypt’s financial and banking systems and to the economic and social systems as a whole, as I demonstrated in an article in Al-Ahram Weekly last year. It should be borne in mind that the Quran does not instruct the prophet to force rules on the faithful (la ikraha fil deen).

The difficulty in adjusting legislation to the rules of the Sharia will be notable when it comes to revising the civil code. Many people may not know that the present Egyptian civil code, which went into effect on 15 October, 1949, contains several provisions from Islamic rules on domestic relations such as inheritance, the liquidation of estates and waqf. But the bulk of the code’s provisions, and those in the criminal, commercial, maritime, and banking and other codes, need to be reviewed and might be subject to heated arguments, especially from Islamist groups such as the Muslim Brotherhood that currently holds power in Egypt and apparently cannot understand the difference between slogans and the public policy that is needed to govern. Then there are the ultra-conservative Salafis, who are interested in the rules of prohibition rather than the rules of permission, in violation of the general rule in the Sharia that all things are permissible unless prohibited.

The Salafis only recognise the Quran and the Sunna as the sources of the Sharia, though all of the four Sunni schools added other sources such as al-ijtihad (the opinion of jurists in the absence of a rule in the Quran or Sunna), al-qyas (precedent), al-ijmaa (the consensus of the jurists), al-urf (custom), and al-masaleh al-mursala (the interests of the community), all of which open the door to adjusting the rules according to changing circumstances and traditions. As a result, it can be expected that the Salafis will vehemently oppose any codification of the Sharia that is based on other sources beside the Quran and Sunna, thereby deviating from the rules in the constitution. A religious rift can be expected between the Brotherhood and the Salafis as a result.

In Egypt, the courts would not be able to apply the Sharia until it was codified and enacted by the new parliament, a process which will take years to complete, and in the meantime they will have no option but to apply the laws in effect at the time any case takes place. The drafters of the new constitution have failed to realise this fact, and they should have included a provision in the constitution to authorise the courts to continue to apply the laws in effect at the time of enacting the constitution and until the Sharia was codified and approved by the newly elected parliament after the forthcoming elections in April 2013. Adjusting the present laws in force in Egypt to the Sharia will be a major job that will take a long time, considering the great advances that have taken place in technology and the changing traditions and circumstances.

As I have explained above and in my previous article in the Weekly, the misinterpretation of the Sharia by misguided Islamist groups may bring the country to the brink of authoritarian governance and chaos in the name of Islam. We must adopt the interpretations that suit the new circumstances and changes in our traditions, Egyptian traditions, and not those of other Islamic or non-Islamic countries, and we must bear in mind the economic and social situation in Egypt, where about one-third of the population is drowned in illiteracy and poverty and where unemployment has reached 14 per cent.

Applying the Islamic punishment of chopping off the hands of thieves, for example, would turn thousands, if not millions, of poor people into handicapped individuals because they may have committed theft because of hunger. We should ensure that punishments suit crimes. Stealing a loaf of bread or a piece of meat is not equal to embezzling thousands of pounds, though there is no punishment for the latter in the Sharia and it is only punishable by imprisonment. The same punishment is also imposed on thugs and professional thieves under the Sharia as on petty criminals. Omar Ibn Al-Khattab, the second of the Al-Rashidoun (the four successors of the prophet, may peace be upon Him), gave us an example of how we should act when he suspended punishment for stealing during a famine.

It is to be noted that Al-Ahram reported on 19 February this year that Ahmed Omar Hashem, the former president of Al-Azhar University in Cairo, had said that taking care of handicapped individuals was a commandment in Islam. But is it not more human not to subject poor people to be handicapped for theft in the first place, when in this way the number of handicapped people will be drastically reduced?

Waiting for these issues to be resolved will not suit the ultra-conservative Islamist groups, however, whose members want to take the law into their own hands as the jihadists in Somalia and Mali have been doing. It has been reported that Islamist groups in Egypt, for example, have threatened to kill, or to permit the sexual abuse of, women wearing revealing attire, as some women hosting television programmes have been accused of doing. It is very disturbing to read that the former grand mufti, Ali Gomaa, supported this trend as he considered it the rule in Islam. Did he forget that in his article in the New York Times in 2011 he said that none of the Islamist groups in Egypt represented true Islam? I hope the report of his views is not correct. And where is the grand imam of Al-Azhar, Ahmed Al-Tayeb? Can his silence here mean his consent? Such incidents will tarnish Islam and dissuade tourists and investors from coming to Egypt. The US department of state has already reportedly advised Americans not to travel to Egypt.

The problem with the Islamist groups is that they are applying the Machiavellian notion that since people are brutes, everything is permissible. This means that rulers should do everything they can to hold onto power. Thus, Machiavelli himself declared that “the ends justify the means”. But this is anathema to Islam. The Islamist groups now have power without having plans on how to govern, and as a result they are using their misguided interpretations of the Sharia to force themselves on people and prohibit any opposition or criticism of their actions.

They need to allow Egyptian judges to do their jobs. In this, they may also be surprised to learn that many Egyptian laws do not contradict the rules of the Sharia. 

 

The writer is an international lawyer.
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