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Courts and Constitutional Law in MENA

Panel IV-28, 2023 Annual Meeting

On Friday, November 3 at 11:00 am

Panel Description
  • Civil law is the fundamental law of a legal system. Any major change to civil law will alter beyond recognition a legal system. Islamic civil law as codified by the Ottomans, al-Majalla, was applied in the modern state of Syria from 1919-1949. Al-Majalla was taught at the Syrian University founded in 1919. Thus, all legal professionals practiced Islamic civil law and all civil courts applied this law. But Islamic civil law ceased to be the fundamental law of Syria after the first military coup d’État of 1949 staged by general Husni al-Zaim. It took al-Zaim and his entourage less than a month to dismantle a legal system centuries old. Al-Majalla was replaced by the Syrian Civil Code based on the newly promulgated Egyptian Civil Code of 1948, itself of French origin. The highest-ranking Islamic law judges were forcibly retired, and the Islamic law professor at the Syrian University was fired. Civil law courses at the university were totally revised in order to teach the new Syrian Civil Code. And of course, the Syrian legal system was in a state of chaos; neither the lawyers nor the judges had received training in the new code they now had to apply. This paper relates the struggle that politicians and jurists of the 1950s took up to reinstate Islamic law as the main source of legislation. It describes the changes to legal education which ensured that Islamic law was taught at the university, and that jurists trained in the tradition could continue to practice law. The presentation also relates how the political instability of successive military coups ultimately foiled attempts to restore a legal system founded on Islamic law. Finally, the paper describes events since the popular uprising of March 2011 in Syria, and the “renaissance” of Islamic law observed mainly in the north. Some lawyers, judges and prosecutors of the Syrian opposition supported attempts to apply Islamic law in the ad hoc courts they established in areas no longer under state control. Rather than interpret their actions as part of the political movement of Islamism that swept across Syria as of 2013, the paper demonstrates that their efforts to reinstate Islamic law mirrored the past attempts of legal professionals of the 1950s and 1960s to salvage their legal tradition. Primary sources include the Official Gazette of Syria, university textbooks and programs, Internet sources post-2011, and interviews conducted with Syrian legal professionals.
  • The reign of Bayezid II (1481-1512) saw an unprecedented rise in the number of Ottoman jurist-scholars who compiled commentaries on the canonical works of post-classical legal theory and Hanafi substantive law. Scholars have posed many theories in the past decade to explain the function and purpose of legal theory and legal compendia in the regime of legal conformism. This paper probes into the question why post-classical jurists, who had no so much juristic leverage than browsing through accumulated jurist opinions within their madhhab repository, would pay much heed to cultivating the hermeneutical apparatus supplied by the works of legal theory. As a case study, I examine a sample of Ottoman juristic writing flourished in the late 15th/early 16th centuries under the patronage of Bayezid II. This juristic scholarship evinces an exclusive concentration on Ṣadr al-Sharī’a al-Maḥbūbī’s (d.1346) commentary on a compendium of Hanafi law, The Safeguard of the Transmission (Wiqāyat al-riwāyah fī masā’il al-Hidāyah) and his famous work on legal theory The Revision of the Methodology (al-Tanqīḥ al-Uṣūl). Scholarly entourage of Bayezid II nourished and cultivated a culture of scholastic disputation concentrated on formalistic aspects of legal and theological arguments in Ṣadr al-Sharī’a’s works, which had already engendered its chain of commentaries before the Ottoman jurists. Intellectual resources of the 16th century Ottoman juristic thinking had been invested in digging into the linguistic, rhetorical and argumentative capacities of these works, which indicates little concern with the alleged purposes of the post-classical legal writing, rule-discovery and rule-review. The Ottoman commentarial culture in the reign of Bayezid II culminated in Ottoman chief-jurisconsult Kemālpaşazāde’s (d.1534) ambitious and controversial project on a thorough “rectification” of Ṣadr al-Sharī’a’s aforementioned works. The titles of his works, Replacement of the Revision ( Taghyīr al-Tanqīḥ) and Revision of the Safeguard (Iṣlāḥ al-Wiqāya) give an indication of the polemic directed against the legal canon, on the grounds of the textual shortcomings of the tradition. In light of the recent scholarship on adab/Islamic paideia, I show the way this commentarial enterprise illustrates how the post-classical legal writing had been turned into a contested field, whereby Ottoman jurists vied for cogent elucidations of the legal problematics thanks to their competitive humanistic erudition.
  • Is environmental injustice so widespread, and are its impacts so damaging, that it can be understood as ‘a totalitarianism of our time’? Could law—local, national, and international—be deployed to challenge environmental injustice if we accepted that communities are effectively “banish[ed]” (Arendt 1951) from society when incapacitating health impacts negate community members’ abilities to participate in public life? These questions draw on works of political theory, particularly Hannah Arendt’s 1951 The Origins of Totalitarianism, to develop a novel approach to understanding environmental injustice and the climate crisis in relation to citizenship, statelessness, de facto statelessness, and critiques about the international human rights regime. In this paper, I develop a framework to analyze deficiencies regarding local and international policies on environmental injustice and racism. Focusing on Palestine, I examine how environmental injustice is deployed to perpetuate and intensify the conditions of occupation and blockade. Regarding the West Bank, East Jerusalem, and Gaza, environmental injustice is weaponized—including water access denial, land grabbing, and more—to unjustly deny Palestinian statehood. Regarding Iraq, I develop the original concept of ‘toxic saturation’ to examine how health destruction dominates the lives of civilians left behind in the toxins of war in the aftermath of the 2003 US invasion and occupation. I address how environmental injustice can be so severe that it strips people of their “right to have rights” (Arendt 1951) and produces conditions of de facto statelessness in which communities who technically retain citizenship are, in reality, left rightless and without access to the human rights protections to which they are legally entitled. My research suggests that contemporary manifestations of environmental injustice are often examples of the “continuing effects” (Anghie 2004) of excluding certain groups from sovereign status—excluding them from citizenship, and, by extension, from international law. Environmental injustice’s dominance in marginalized communities is driven by legacies of colonialism, slavery, and apartheid. Lastly, I draw transnational connections between environmental injustice in the MENA region and communities affected by legacies of colonialism, slavery, and racism in the US, such as in Indigenous communities and in “Cancer Alley.” Where do ‘toxic saturation’ and climate vulnerability intersect? How do these overlapping forms of local and global “slow violence” render human rights meaningless in the face of unjust colonial pasts, presents, and futures? I draw from research in the Palestinian West Bank and at COP27 in Egypt. Works by Anghie, Arendt, Antoon, Césaire, Erakat, Alatout, Selby and others are analyzed.
  • While research on law and social life in authoritarian settings usually focuses on practices employed by ordinary people to manipulate or avoid the law, the law’s power of submission is relatively less studied. Addressing this gap, I investigate the power of criminal trials in producing political power and compelling obedience. At the same time, I look at practices of resistance within the courtroom. This presentation is based on fieldwork conducted through the period of December 2018 and January 2020. Material is presented from semi-structured interviews with legal professionals and activists, as well as participant observation at a small law firm with a leading role in several political trials and at criminal trials of lawyers, rights activists, and civil society members at numerous courthouses in Istanbul and its vicinity. The latter include the Second Criminal Court of First Instance (specialising in media related charges) at Çağlayan Palace of Justice and the Silivri Courtrooms located at the Silivri Prison Complex. In this presentation, I explore the strategies employed by the judiciary and the government in generating fear and uncertainty such as the institution of Turkish Criminal Judgeships of Peace, selective implementation of penal articles, instrumentalisation of deferral of the announcement of the sentence, excessively long indictments, restrictions of access to case files, disinterested judges and prosecutors, and smear campaigns by pro-government media. I also explore the space and the procedures of the criminal trial as a political ritual where state power is performed and where political dissent is disciplined, disarmed, and immobilised. In this respect, I look at the re-categorisation of authors, lawyers, civil rights activists as defendants and the employment of indictments and the language of the law in developing narratives around civil society organisations, rights activists, and social movements. Furthermore, I investigate the ways in which criminal trials transform political violence against dissidents into a routine, bureaucratic affair. Finally, I explore the practices of resistance employed in the hearings, including defendants challenging the legitimacy of the judicial panel; defence counsel walking out or banging on the benches in protest; and the audience chanting slogans. I argue that while practices of resistance render the weaponization of criminal law more visible, they have limited transformative power in relation to the violence inflicted on dissidents and the generation of fear and uncertainty through the courts.