Friday, May 3, 2013

‘Abd al-Razzaq al-Sanhuri

'Abd al-Razzaq al-Sanhuri (1895-1971) was an Egyptian jurist, legal scholar, and architect of civil codes in several Arab countries.  The academic and professional life of Sanhuri is a reflection of the time during which the need for legal reform arose.  For some Muslim countries, this meant the codification and modernization of the shari‘a, and for others the replacement of imported legislation by national and Islamic laws.  Sanhuri drafted the modern civil codes of various Arab countries and attempted to reinvigorate the shari‘a in light of contemporary legal developments and to incorporate it in the study of comparative jurisprudence.

Born in Alexandria, Egypt, in 1895, Sanhuri received a modern education and graduated from the Khedevial School of Law in Cairo in 1917.  He was appointed assistant prosecuting attorney and by 1920 had joined the School of Shari‘a Judges as a lecturer.  The following year, he went to France for postgraduate studies.  He wrote two theses, Les restrictions contractuelle a la liberte individuelle de travail dans la jurisprudence anglaise and Le Califat, obtaining dual doctorates in law and political science from the University of Lyon.  He was also awarded a diploma from the Institut des Hautes Etudes Internationales in Paris.

In 1926, Sanhuri returned to Egypt and began teaching civil law at the Law School, where he became dean a decade later.  His involvement in politics led to his dismissal in 1936.  He then served as dean of the Law College in Baghdad and began drafting the Iraqi civil code.  Sanhuri went back to Egypt in 1937 and served in various cabinet posts, becoming president of the Council of State in 1949.

Sanhuri supported the movement of the Free Officers in 1952, and in his capacity as president of the Council, he provided the legal advisory opinion that gave a constitutional basis for the Revolutionary Command Council’s (RCC) exercise of power.  Following a falling out among RCC members, Sanhuri was forcibly ousted from the Council of State in 1954 and was later deprived of his political rights.  He devoted the rest of his life to teaching, research, and writing.

Sanhuri articulated his theoretical approach of legal reform in Le Califat: Son evolution vers une societe des nations orientale (Paris, 1926).  Unlike ‘Ali ‘Abd al-Raziq, who claimed that political authority was not an integral part of Islam, Sanhuri considered the restoration of the caliphate a necessity, signifying the unity of Muslims and the preservation of the law. To reflect prevailing conditions, he made a distinction between an irregular (temporary) and a regular caliphate.  He proposed that the caliphate develop into an Eastern League of Nations, with the caliph presiding over a body exercising only religious authority until a similar body with executive functions could be established.  The exercise of executive and legislative authority would be the prerogative of individual governments and heads of state.

The restoration of the regular caliphate, Sanhuri maintained, must be preceded by an evolution of Islamic law.  Despite his genuine belief in the relevance and significance of the shari‘a to the judicial and social institutions of the Muslim world, he was more concerned with maintaining the stability of legal practices and relationships.  In an effort to make legal reforms acceptable to all citizens, he differentiated the immutable and temporal parts of the shari‘a and claimed that only the variable rules of the temporal portion were subject to change.  His proposed modernization of Islamic law would pass through two phases.  The first would be that of scientific research, during which the shari‘a would be thoroughly studied in light of modern comparative law.  The second, the legislative phase, would include the gradual revision of existing codes.  These new legislative reforms would take into account the historical, social and legal experiences of each country.

Sanhuri put these ideas into practice in the revisions of the Egyptian and Iraqi codes, enacted in 1949 and 1951 respectively.  He selected provisions – Islamic or Western – according to their merit, but he often concluded that the shari‘a was more effective.  In Egypt, where the existing code was based on foreign laws, he added provisions that made it more Islamic. In Iraq, however, the code was based largely on the Mecelle, and he introduced Western provisions that made it more modern.  His final objective was a modern comparative legal system that would gradually come to emphasize Islamic rather than Western values and thus would become the basis for a unified Arab code.

Sanhuri was responsible for laying the foundation for modern legislation in the Arab world.  The codes he drafted for Egypt and Iraq have become models for other countries.  Sanhuri's codes were adopted with minor modifications by Syria, Libya, and Jordan.  His voluminous work on civil codes and Islamic law (Al-Wasit fi shar al-qanun al-madani al-jadid -- "Medium commentary on the new Civil Code") remains the main reference for Islamic scholarship in comparative law and codification to this day. 

'Abd al-Razzaq al-Sanhuri was also known as an Egyptian legal scholar and professor who drafted the revised Egyptian Civil Code of 1948. He wrote the draft of the Iraqi Civil Code with the help of many Iraqi Jurists guided by him. Forced into retirement by Nasser and physically attacked by a mob for attempting to restore constitutional government in 1954, Sanhuri left Egypt and helped draft the civil codes of pre-Baath Syria of Husni al-Za'im (who ordered an exact copy of the Sanhuri Code to replace the majalla [the Ottoman Civil Code] in 1949), Jordan (only completed and implemented in 1976, after Sanhuri's death), and Libya (1954) and the commercial code of Kuwait (drafted by Sanhuri but only concluded and implemented in 1981, already after his death.

In 1970, Egypt awarded Sanhuri its prize for social sciences.

Sanhuri was known for attempting to recreate a "pure" Islamic law by modernizing the shari'a using Western civil law (mainly of American and French inspiration), and the guidance when needed of a natural law obviously just to all, to guarantee justice above religion (but reaching its humanistic ends), ideology, and personal opinion in general, when all else (including the countries legislation, the shari'a and traditional customs) fails to solve the problem. One commentator argued that Sanhuri's code reflected a "hodgepodge of socialist doctrine and sociological jurisprudence." Regardless of such interpretations, his place in the legal history of the modern Middle East is secure; his twelve-volume Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd [Medium commentary on the new Civil Code] (Cairo: 1952–1970) "adorns the bookshelves of many an Arab law firm, even in countries where the Egyptian Civil Code is not law".

Alternative names include:

'Abd al-Razzaq al-Sanhuri
'Abd el-Razzak el-Sanhuri
Abdel-Rezzak el-Sanhuri
Al-Sanhuri, 'Abd al-Razzaq
El-Sanhuri, 'Abd el-Razzak
El-Sanhuri, Abdel-Rezzak
Sanhuri, 'Abd al-Razzaq al-
Sanhuri, 'Abd el-Razzak el-
Sanhuri, Abdel-Rezzak el-

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