In the language of lawyers praising a jurist, the word "greatest" is usually an overblown epithet. There is one man though that many consider, rightly, to be the Arab world's greatest jurist in modern times. Dr Abdel Razzaq Al Sanhouri was the eminent jurist, teacher, writer and draftsman of many laws and codes in the Arab world. Al Sanhouri was born in 1895 in Alexandria in Egypt, and died in 1971 in Cairo.

In the past 75 years there have been many reforms and new definitions of Arab law. The establishment of the Arab League post 2nd. World War mirrored the enthusiasm for a pan-Arab legal consensus. As a result there have been a considerable number of legal developments in all of the Arab League states. The positive developments, such as more consensus in legal learning and education, the exchange of ideas, the employment in the Gulf states of judges (and lawyers) from Egypt, Palestine, Syria, Lebanon, Sudan and elsewhere has naturally brought about a different legal landscape. There is clearly a more holistic legal approach, whether or not a reader looks at the Gulf States on their own, or the Arab countries in the Mediterranean, or those further centred in the Middle East. From the 1920s Al Sanhouri was a leader of the pan-Arab legal development process.

A hundred years ago Arab law might have been a concept hardly understood by many in the West, and perhaps equally those in the Arab world. As the centenary of the outbreak of the Great War is marked in 2014, most of the present Arab states were under control of foreign occupying powers. The Ottoman Empire was relatively intact, France regarded North Africa as its own, and Egypt and Sudan - while nominally independent – were under de facto control of London. Britain had a protectorate over, not of, Egypt. The wording was deliberately careful – "over" allowed Britain to state that Egypt was free to govern itself, but took advice from Britain. Such advice for example enabled Britain to insist, on the outbreak of the Great War, that Egypt take formal steps to declare itself free of the waning nominal Ottoman sovereignty suzerainty. The Sudan was controlled by Egypt, but with a Governor-General appointed by Britain. The Gulf states, mostly in treaties with Britain, were generally independent, save for some elements of foreign affairs. Exceptions were parts of present Yemen (controlled by the Ottomans), and parts of what is now Saudi Arabia (the Hejaz, Nejd, Al-Hasa and Asir – the Ottomans controlling much of the trade and pilgrimage to Mecca).

As the Great War started, and the Ottoman Empire crumbled, and Egypt was filled with British and Empire troops (to guard the Suez Canal, defeat the Ottoman Empire in Palestine to protect the route to India, and take pressure off the war in France) Al Sanhouri entered into his legal studies, settling into studying the bifurcated court system, of the Mixed Courts and the National Courts.

The highly regarded Mixed Courts of Egypt, established in 1875 through the good offices of Isma'il Khedive and his first minister Nubar Pasha, allowed freedom of commerce as well as freedom of movement in the Egyptian economy. It is said that the Egyptian Market in Istanbul was built on the proceeds of the tribute paid by Khedive Isma'il to the Ottomans to permit him to have independent courts. If true, the bargain was a very good one for Egypt.

The Mixed Courts used a series of Codes, along European Civil Law lines, with some aspects of Islamic law. The courts were almost a hybrid series of courts, especially established to deal with disputes between foreigners and Egyptians. Their base was in Alexandria, the commercial capital of Egypt. Within 10 years of the establishment of the Mixed Courts the new environment had allowed a booming economy, precisely because the existence of courts gave confidence to the commercial traders and industrial enterprises. The Mixed Courts had quickly built up considerable experience in ruling on difficult cases (the judges being from a variety of nations, including France, England, Italy, Scandinavia, the USA, and Egypt). They established precedent so that the decisions of the courts could stand as a living law.

In 1883 the National Courts (sometimes called Indigenous Courts) system was established, based on the Mixed Courts codes, so that there was a separate, but confluent, court system in the whole of Egypt. They were established to run parallel with the Mixed Courts, but their base was in Cairo. Notwithstanding the British occupation of Egypt in 1882, there was no appetite or intent to utilise wholesale English Common Law, although most shipping litigation was based on English law contracts.

Egypt, formally part of the Ottoman Empire, but essentially through the reforms from 1875 separate from it, was, by 1918, the second richest country in Africa, only surpassed by South Africa with its gold and diamonds. The proliferation of a merchant class in Egypt allowed members of disparate groups in the Mediterranean and the Ottoman Empire to establish themselves, to set up businesses, assert their right to practise their professions, build schools, and to take advantage of the liberal commercial practices in the Nile Delta. From the middle of the nineteenth century Levantine and other merchants had established themselves in Cairo and Alexandria.

Alexandria's port and its reach into the hinterland of the Delta was well known to the Mediterranean peoples, and Alexandria was as much a Mediterranean city as it was Arab. Significant numbers of Armenian and Russian refugees sought temporary or permanent refuge in Alexandria after the end of the Great War. It was no coincidence that the Khedive Isma'il had established the headquarters of the Mixed Courts and its Court of Appeal in Alexandria.

In this highly paced and free trade environment the rule of law was essential and necessary. Upon graduation in his early 20s from the Khedivial Law School, the man who would become the Arab world's main and most famous jurist, started work. On qualification Al Sanhouri's first job as a government lawyer was in the prosecution department in the Mixed Courts at Mansourah, a wealthy and significant cotton town. Al Sanhouri's posting to Mansourah gave him a sound grounding in commercial matters, in a prestigious court environment, with easy access to the Mixed Courts headquarters in Alexandria. He was soon recognised as an up and coming lawyer, and as a legal scholar. By all accounts he gave freely of his knowledge and was keen to debate legal issues. After Mansourah he spent time in Upper Egypt, and then went to Lyons to study, in French, where he wrote a thesis on English contractual law relating to employment. As Al Sanhouri was interested in politics, he then delved into the origins of the concept of an Islamic Caliphate, and the consequences of Turkey's abolition of the Caliphate in 1924and its potential future.

Al Sanhouri himself came from a comparatively modest background in Alexandria, but he had been identified through his schooling and his intellect as a man of considerable intelligence, and with a sound understanding of his environment and the developments in Egyptian liberation thinking. He had been recognised at the Law School as a student with excellent analytical skills, and he was well-respected and destined to achieve considerable status. Returning from France to Egypt, he continued with his teaching in Cairo, and was then invited to teach in the new Baghdad Law School in 1934, where he was appointed Dean of the Faculty of Law. In 1936 Al Sanhouri was appointed in Egypt to the Committee to review the civil codes.

As noted, Egypt had two Civil Codes, the Mixed Civil Code used in the Mixed Courts, and the Civil Code in the National or Indigenous Courts. Both codes were remarkably similar, but each court system used its own codes. There was some exchange of opinions and views amongst the Egyptian judiciary, but in broad terms each system kept to itself until reforms in 1937. Precedent was more used in the Mixed Courts than in the National Courts. Al Sanhouri's life reflected the developments, ambitions, aspirations and education of Egyptian society from the early 20th. Century onwards.

At the time that Al Sanhouri was born the Mixed Courts were 20 years old. Egypt in 1914 had a vibrant economy, based on agriculture, trade, and developing industry. Commercial international trade tended to follow much of the English Common Law tradition. Local trade, with aspects of the Civil Law traditions, tended to follow local practice. Law is, of course, a fundamental safety net for rights and obligations. No sane society can exist without rules, whether those rules are built on the basis of religion, commerce, or a more problematic basis of expediency. All of the major religions have contributed to the betterment of law and morals. Islam has a rich heritage of fairness in trade and ensuring endeavour is not hampered by unfair bargains.

Along with other jurists, Al Sanhouri was interested in the compilations of Islamic law, such as the Hanafi Majelle, drafted in the Ottoman Empire. While the Majelle was in general use in the Ottoman Empire, it was not formally in use in Egypt, but debated and discussed. One of the other key reading materials was the code drafted by Muhammad Kadri Pasha, Murshid Al Hayran. The use of compilations of Islamic law was seen as a way of utilising the principles of Islamic law in the format of the civil codes of the European countries.

Al Sanhouri saw no intellectual difficulty in taking the best parts of the Mixed Court codes, with their European aspects and their Islamic principles, and developing a better and more properly Egyptian code by blending Islamic principles into the drafts of the civil codes. He saw no particular clash between modern aspirations of legal principles and the Sharia. As he was familiar with the Mixed Courts, so too could he see the benefit of using precedent from the decisions of the Mixed Court's judges, as living fruitful law. Whilst most of the judges were civilian lawyers, there were a significant number of British and American judges also, and for important cases the judges sat in plenary session.

It was clear in the early 1930s to judges, lawyers, and politicians that the dual system of the Mixed Courts and the National Courts could not endure much further; reform was needed. Several plans were drawn up, and agreement was made, and finalised in Montreux, that a new system would be in place from 1 January 1938, with the aim that a merger of the two court systems, with a new unified Civil Code and other laws, would take place as soon as possible. In the event, the outbreak of the Second World War in 1939 delayed the work. ce from 1 January 1938, with the aim that a merger of the two court systems, with a new unified Civil Code

Al Sanhouri's reputation allowed him access to academics and decision makers in many Arab states. His early work in Iraq gave insights into the development of Iraqi law and over time much of the new Iraqi Civil Code was based on his suggestions and drafting. Al Sanhouri's deep knowledge of the codified Islamic provisions of other jurists enabled him to take the best suggestions and work on them. He was invited to take the major part in the drafting sessions for the new Egyptian Code, a task requiring considerable patience and time. Members of the Committee had very different views. Some regarded their task as the wholesale revision of the "foreign" codes and the establishment of a codified system, of Islamic law. Others wanted to bring Egyptian law into the same space as the European Codes. It is fair to say that Al Sanhouri's experience and breadth of intellectual skill allowed him to be the master of a delicate process of combining Islamic law and existing commercial and trade principles so that what was current and good in Egyptian law was kept, Islamic principles were put to the fore, and that which was not good left aside.

The result of the work of the many jurists involved in the new Code, intellectually led by Al Sanhouri, was a Code clearly fit for purpose. Its promulgation through Law No. 131 of 1948 (in force from 15 October 1949) was a fanfare for the new Egypt.

It is fair to say that if Al Sanhouri can be described as the father of the new Egyptian code, the Mixed Courts system was the mother. The nursemaid was Article 11, as below, which granted sensible free discretion to the judges.

For example, Article 11 of the Mixed Courts Civil Code: En cas de silence, d'insuffisance ou d'obscurité de la loi, le juge se conformera aux principes du droit naturel et aux règles de l'équité. (1938 version)

In the Egyptian Civil Code of 1948, see Article 1 : La loi et les droits

  1. La loi régit toutes les matières auxquelles se rapporte la lettre ou l'esprit de ses dispositions.
  2. A défaut d'une disposition législative applicable, le juge statuera d'après la coutume, et, à son défaut, d'après les principes du droit musulman. A défaut de ces principes, le juge aura recours au droit naturel et aux règles de l'équité.

(The above translation from the Arabic text into French is copied from Code Civil Egyptien by Umberto Pace and Adib Maakad Bey, Traduction Francaise Officielle. )

In English: Article 1

  1. Provisions of laws govern all matters to which these provisions apply in letter or spirit.
  2. In the absence of a provision of a law that is applicable, the Judge will decide according to custom and in the absence of custom in accordance with the principles of Moslem Law. In the absence of such principles, the Judge will apply the principles of natural justice and the rules of equity.

(Egyptian Civil Code, Preliminary Chapter, Article 1 – contemporary English translation by Perrott, Fanner & Sims Marshall, Cairo)

After the Second World War legal life settled down as best it could. The upheaval of war and destruction on Egyptian soil eventually led to a more sombre reflection. It was quite clear that the route towards a more enlightened free society in Egypt had been boosted because of Egypt's contribution to the Second World War on the side of the Allies. Al Sanhouri's own career was significantly advanced in 1949 when he became the President of the Majlis Al Dawla, the Head of the Council of State. Some three years later on 23 July 1952 General Neguib and Colonel Gamal Abdel Nasser and the Free Officers seized power, and established themselves in government.

King Farouk was invited to abdicate in favour of his baby son Fouad. Al Sanhouri was at that stage a supporter of the new order, and was one of the people who persuaded the King to agree to leave Egypt, and abdicate. However, Al Sanhouri's acceptance and support of the Revolution was to be short lived. He refused to agree with many aspects of the new regime, and was attacked by a street mob who disliked his views. He was also held for periods under house arrest, but used the time to develop his theories.

As a result he left Egypt for Kuwait, where he remained working for some seven years, visiting other Arab countries. He inspired the Civil Code of Jordan, and Libya (much along the lines of the Egyptian Civil Code), took part in significant drafting advice in Iraq and Kuwait, and his views are reflected in the Codes of the Gulf. The only significant Arab state that has not followed the Civil Code route is Saudi Arabia, but jurists recognise and seek out his writings and teachings.

What is Al Sanhouri's legacy? His major work is the commentary to the Civil Code of Egypt - Al Wasit Fi Sharh Al Qanun Al Madani Al Jadid. No serious Arab lawyer ignores Al Wasit. Egyptian law has considerable strength in the Arab world precisely because of Al Sanhouri's work over a lifetime, and especially of his legacy of Al Wasit and other learned texts.

Superficially, it might be thought that the Egyptian Code is just another code, mimicking the codes of Europe. After all, a quick and lazy reader might see the chapter headings and take the view that it is just like all other Civil Codes. Such an approach is fatal to understanding, and ignores the real strength of Al Sanhouri's work.

The Egyptian Civil Code is replete with Islamic concepts, and Egyptian law has directly influenced the learning and development of codes in many of the Arab countries, especially Kuwait and Qatar and the UAE, Syria, Iraq and Libya. Al Sanhouri's contribution in his later years was the revitalisation of Islamic law. Some commentators consider that Islamic law is not a system of law which is capable of development. Plainly, Islamic scholars over the centuries have been able to develop principles of law, especially in commerce, that meet the needs for the generations that work with the law. It is a mistake to suggest that a modern code cannot be drafted without Islamic legal principles. Al Sanhouri paved the way to a recognition that far from "European" and Islamic provisions clashing, there is considerable conceptual understanding and joint agreement on the way that laws should be drafted for the betterment of society. A theme close to Al Sanhouri's heart.

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