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The Failed Aspirations of the Early Codification Movement in the Middle East
Abstract
The early codification movement in the Middle East failed to displace Sharia (Islamic law). Old legal problems persisted after the presentation of codes patterned predominantly on the Continental law of Europe; in a community ruled historically by Sharia, the legal positivism of these early codes necessarily clashed with the religion-based indigenous law as the movement struggled to establish in the Muslim community a positive law jurisprudence independent of the religious imperatives that seemed contrary to modernity. Overcoming this clash has always been the aspiration of two legal trends in the Middle East: the Sharia codification trend and the positive law codification trend, both of which have survived until today. Taking the Ottoman Mejelle as an example of the codification of Sharia and the 1949 Egyptian Civil Code as an example of positive law codification, this paper attempts to expose some of the failures of the early codification movement. It compares the declared aspirations of both codes to their achieved realities. The Mejelle, on the one hand, aspired to reduce dense and difficult Sharia arguments into an accessible encapsulated article-form code. By dislocating Sharia's highly nuanced fatwa (legal ruling) institution, for example, the Mejelle became merely a lengthy text book on sales in the Hanafi tradition instead of a legally digested code. Meanwhile, the 1949 Egyptian Civil Code aspired to establish an independent positive law jurisprudence in a Sharia environment. To achieve its goal, the 1949 Civil Code combined the French jurisprudence of the old Egyptian civil code with Sharia into a hybrid juristic mix. The result was practically untenable; due to the lack of a supporting legal culture and grave errors in its attempted adaptation of Sharia's legal doctrines to positive legal thinking, the 1949 Civil Code remained dependent on French jurisprudence. In short, instead of making a new beginning, the Mejelle and 1949 Civil Code were ruled by the problems of the past.
Discipline
Law
Geographic Area
Egypt
Sub Area
19th-21st Centuries