The Jurisprudential Problems of the Early Codification Movement in the Middle East: A Case Study of the Ottoman Mejelle and the 1949 Egyptian Civil Code.

摘要

This dissertation assesses the achievements of the early codification movement in the Middle East in comparison to the historically indigenous law of Sharia. It proves the claim that the Ottoman and the Egyptian civil law codification models of 1878 and 1949 respectively failed to furnish their legal systems with a jurisprudential substitute to alienated Sharia. The reason for this failure, as the study proves, is attributed to the difference between the legal goals of Sharia on the one hand and those of the Ottoman and the Egyptian civil codes on the other. The goals of Sharia law were to identify al-hukm al-shar'iyy (Allah's ruling) on any legislative issue. As the search from this ruling produced an erratic pluralism, Sharia developed the theoretical study of usul al-fiqh (methods for identifying Allah's ruling). The usul was successful in introducing standards of legitimacy to help identify the recognized ruling from among a pool of juristic decisions on every legislative case. The standards heeded the balance between the religious and the temporal interests of the Muslim community. Eventually, this balance was the means to curb the self serving laws of the sovereign, introduced into Sharia through the misuse of the maslaha (public interests) doctrine.;In contrast to Sharia, the Ottoman Code, commonly known as the Mejelle, fulfilled the goal of secularizing Sharia law. Accordingly, the laws of the Mejelle were stripped of their moral and religious basis. Yet, while the Mejelle was able to legalize religiously prohibited laws such as those on usury, it deprived its laws from Sharia's usul jurisprudence. In the absence of the usul, the Mejelle was unable to introduce new legislation through the application of the usul's methods of ijtihad and takhrij. Stifled by its jurisprudential limitations, the Mejelle resorted to Ottoman decrees. The decrees eventually proved detrimental to the Mejelle as they trumped any legal debate leading to the creation of a Sharia-based Ottoman jurisprudence.;The 1949 Egyptian Civil Code on the other hand was drafted to meet colonial demands for laws compatible to the "modern" legislations of its times and to satisfy the rising nationalism in Egypt. The Egyptian code was thus patterned on French civil law as an interpretation of the term "modern." It also included some Sharia laws to appeal the religious sensibilities of the Muslim Egyptian majority. The combination of such varying sources of law compelled the code's drafters into recognizing of a hybrid Egyptian jurisprudence. None of the parties engaged in the application and the enforcement of the code identified with this hybrid source of law; the Egyptian judiciary sought French law solutions to legal problems, the public demanded the enforcement of Sharia's moral laws and the executive enforced an anti-rich socialist interpretation of the Egyptian law. Consequently, the new jurisprudence failed to foster an independent source of law among the judiciary, to replace Sharia for the Egyptian Muslim community or to hold back the interventionism of its executive.