The reception of French law in the Muslim world

In the nineteenth and twentieth centuries, French civil law spread its influence to the southern Mediterranean, especially through its reception in the Near East (Mousseron 1968, 48). For the Arab states that were formed in the wake of World War I, the experience of Muslim law coming into contact with Western European law was not new. In fact, that process had been underway since the mid-nineteenth century (Tyan 1963, 18).

The modernizing forces set in motion by new trade relationships and the redefinition of the function of credit, among other factors, made it necessary to “reduplicate” the law of the Near East, that is, to develop the positive law alongside traditional Muslim law, whose rigidity was in fact incompatible with the flexibility needed to respond to a changing environment. It was the proclaimed divine origin of Muslim law that accounted for its rigidity, ruling out the very idea that it might be subject to change. There was also another reason for this understanding of Muslim law, having to do with the way Islamic jurisprudence witnessed a loss of cohesion in the seventh and eighth centuries, branching into four main schools—the Shafi'i, Maliki, HanafT, and Hanbali schools—therefore raising fears of a possible dissolution of Muslim law into plural streams of thought (Mousseron 1968, 51). And there was, finally, a third reason for the rigidity of Muslim law, namely, the need to recognize the authority (taqlld) of past generations—an aspect of Muslim law that excluded any independent exegesis in interpreting the sources of law. And yet the transformations brought about by social and economic evolution forced deep changes in the legal system.

All subject matter relating to personal status continued to find its legal basis in the sacred texts, but other areas—including business law, criminal law, the law of civil procedure, and maritime law—fell under the scope of positive law, thereby developing independently of Muslim law. As Mousseron (1968, 58) points out, it was in this way that Muslim law underwent a process of secularization.

This process can be observed through the modernization the Ottoman Empire underwent in the latter half of the nineteenth century, in the era of the Tanzimat reforms, through which Western codes were introduced: the French commercial code in 1850, as well as the French codes of criminal law in 1858;

maritime law in 1864; and commercial, civil, and criminal procedure in the 1880s (ibid., 59).^[1]

Between 1870 and 1877, the contrast between the reception of the French codes and the common Muslim law led to the drafting of the Mecelle, or Majalla, “the first original code enacted by a Muslim country in modern form, but whose content is exclusively religious” (Velidedeoglu 1960, 164; my translation).

After the fall of the Ottoman Empire, Atatiirk’s reforms introduced a radical Westernization process with the 1926 enactment of the Italian criminal code and the German commercial code. Then, in 1927, came the Swiss code of civil procedure, and in 1929 the German code of maritime trade. All provisions that stood in contradiction to the new codification were repealed, starting from the Mecelle, or Majalla.

The Westernization process spread across the entire Muslim world. If the Turkish republic looked to the Italian, Swiss, and German codes, Egypt and Lebanon instead looked to the French codes. This is what happened with the Egyptian codification of 1875, and then again—after Egypt gained its independence, in 1922—with the civil code of 1948. Egypt’s civil codification, based on the French model, in turn established itself as the prevailing model across the Arab world.

According to Mousseron (1968), in order to understand the reasons why the Near East embraced Western law, and French law in particular, we have to look at the “ideologies” behind this process. French law is certainly a

Colonial law and the formation of the nation-state 101 secularized law, but it is not indifferent to moral reasons. These reasons can also be found in Near Eastern law. In both French and Near Eastern law, for example, Mousseron finds the concept of “consension” (understood as a meeting of the minds), harm (specifically understood as an unfair imbalance in the contracting parties’ rights and obligations), equivalence of prestation (akin to adequacy of consideration), frustration of purpose (when unforeseeable circumstances come to pass which make it unreasonably burdensome to perform the original contract), and civil responsibility (making one liable for an injury caused by abusing another’s rights). It has also been speculated that these concepts find their source in Christian morality such as it can be distilled from the work of the medieval canonists and theologians—a morality that in many respects is seen to overlap with Islamic morality. In short, Mousseron (1968, 78) makes the argument that Western legal technique is compatible with Islamic ideology.

It was the French legal model that dominated the colonial scene in the Middle Eastern (and African) countries. Even Egypt, an otherwise British protectorate, opted for that model. Nor is it difficult to see why this should have been the case. One of the most salient features of the nation-state is its totalistic appropriation of the domain of law, an appropriation that presupposed centralization and bureaucratization of the legal system. [...] A strong colonialist regime (and later nationalist governance) thus required the code, the statute and the act as tools of total control. (Hallaq 2009, 119; italics added)

However, the Western powers’ effort to impose their legal model on the colonies did not go so far as to attempt to reshape the Islamic family into the nuclear one proper to the Western state. That is because “the quintessential project of colonialism” was not to assert the ideology of the Western state but rather to use the colonies for “material exploitation” (ibid., 120). Even so,

when France developed the unique colonial idea of absorbing Algeria into the French nation, it repeatedly attempted to alter the personal laws of the Shari'a and replace them with what were seen as more progressive and civilized rules. From the middle of the nineteenth century onward, the French attempted to enforce many codes and decrees, most notably the Code Morand, a code that was devised, inter alia, to redesign the Muslim family along the lines conceived by the état suprême of post-Revolutionary France.

¹

On May 27,1905, the Commission de Codification du Droit Musulman Algérien formed a subcommission chaired by the French jurist Marcel Morand, doyen of the Faculté de Droit at the University of Algiers, as well as a member of the Institut Colonial International, based in Brussels. The subcommission was entrusted with the task of drafting a code of Algerian Muslim law. This draft, titled Avant-Projet de Code du Droit Musulman Algérien, was published in 1916 but never became law, even if it would often be cited as a source in the courts’ case law. In this regard, see Bortmans 1986. On the failure of the Code Morand to make it into law, see Powers 1989, 551.

In the end it was due to the determined resistance of the Algerians that such attempts resulted in failure, and surely not to the lack of French effort. (Hallaq 2009, 120-21; cf. 114)

• [1] Through technological, administrative, and institutional innovation the Sublime Porte, Egypt under Muhammad Ali, and Tunisia under Ahmed Bey sought to “contain and govern European expansion in their own territories” for the purpose of “protecting and reinforcing their own ‘sovereign’ power” (Trentin 2012, 284; my translation). 2 Majalla is its better-known Arab form, whose full name in Turkish is Mecelle-i Ahkam-’i Adliyc, corresponding to the Arab Majallat al-ahkdm al-adliyya, a collection or code of legal provisions whose literal translation is “provisions of justice” (note by Prof. Giuseppe Cecere). The Mecelle, or Majalla, was a civil code that sought to systematize the principles of the shari'a governing loans, property, and trial law in keeping with fiqh (Islamic jurisprudence). It came in response to social, legal, and economic changes posing a challenge that could not be met under existing law. It consists of a prologue and sixteen books comprising 1,851 articles. Contained in the first one hundred of these are the general principles of Islamic law. In view of the sources used in the code, it is fair to say that the notion that the Majalla was drafted under the influence of the Code Napoleon or of Roman law has never been accurate (Akgündüz and Öztürk 2011, 515). This Ottoman civil code was completed in 1876 and became law not only in Turkey (within its present-day borders) but also across a broader area that included Egypt, the Hejaz, Iraq, Syria, Jordan, Lebanon, Cyprus, Palestine, and Israel. It remained in force in Albania and in Bosnia and Herzegovina until 1928 and in Kuwait until 1984. Some of its provisions are still in effect in Israeli law (ibid., 516). 3 Mousseron makes reference to the concept of ideology formulated by Rene David, who understands it as a complex of criteria of justice and morality (see David and Jauffret-Spinosi 2002, 16).