© Koninklijke Brill NV, Leiden, 2001 Islamic Law and Society 8,2

BETWEEN IDENTITY AND REDISTRIBUTION: SANHURI,GENEALOGY AND THE WILL TO ISLAMISE *

AMR SHALAKANY

(Cairo University Law School)

AbstractIs SanhuriÕs Egyptian civil code Islamic? I examine here the distributive aspects ofthis identity question and argue that the codeÕs Islamicity rests on a genealogicalstudy of its drafterÕs Òwill to Islamise.Ó From his doctoral theses onwards, San-huriÕs intellectual genealogy is one of discursive and existential division betweentwo different projects, namely, the identity project of modernising Islamic law andthe redistributive project of engineering modern law to promote social justice. In theEgyptian civil code, Sanhuri meant to bring together those two projects under asingle normative order. To this end, he resorted to the Franco-American concept ofthe ÒsocialÓ—a hodgepodge of socialist doctrine and sociological jurisprudence.Although initially promoting the code as ÒIslamic,Ó he eventually reneged on thisclaim as the ÒsocialÓ was displaced by revolutionary turns in NasserÕs Egypt.

[The draft code] is a great victory for Islamic law . . . all its articlescould be easily argued to represent principles of Islamic law.

Sanhuri, 1942**

In truth, the new Egyptian civil code is a faithful representative ofWestern civilian culture.

Sanhuri, 1962***

H OW DOES ONE MEASURE THE SUCCESS of twentieth-centuryprojects designed to reconstruct Islamic law along modern lines? To mymind, a reconstructive project in Islamic law loosely comprises anyjurisprudential exercise preoccupied with the modern displacement ofIslamic law by Western-inspired legislation. In response, the projectadopts an agenda for Òlegal reformÓ and sets out to ÒmoderniseÓ a

* My thanks go to Lama Abu-Odeh and Hani Sayed for animated readings ofthis piece. I also benefited from discussing earlier drafts with participants in theLaw and History Workshop at Harvard Law School, in particular Peri Bearman,Nathaniel Berman, Yishai Blank, David Kennedy, Duncan Kennedy, BalakrishnanRajagopal and Frank Vogel.

** ÒMashrâ®at Tanq½ al-Q¨nân al-MadanÂÓ in Articles et recherches par profEl-Sanhoury , Revue al-Q¨nân waÕl-Iqtiרd, I (Edition Speciale, 1992), 169.

*** ÒAl-Q¨nân al-Madan al-®ArabÂÓ, Ibid., 493.

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particular field of Islamic law. For the purposes of this article, the pro-ject is deemed successful only if the ÒmodernÓ legal artifact it advancesis equally considered to be ÒIslamic.Ó Stated in these very generalterms, reconstructive projects in Islamic law cover a wide range of legalscholarship; examples extend from the discrete micro-engagements ofredrafting an Islamic marriage contract,1 or devising rib¨-free financialinstruments, 2 to the more comprehensive projects of codifying Islamiccontract law.3 Any of these projects faces the same question, namely,how to measure the ÒIslamicityÓ of the resulting artifact? Beyond whichcompromising threshold does the projectÕs ÒmodernisationÓ agendarender its final artifact too hybrid, too crossbred, in short too ÒWesternÓto deny it the prefix ÒIslamicÓ?

I address this very broad and notoriously problematic inquiry byexamining the specific case of the Egyptian jurist Abdel-Razzak al-Sanhuri (1895-1971), and his most celebrated artifact, the 1949Egyptian civil code. Undisputedly the master re-builder of Arab law inthe twentieth century, SanhuriÕs code instituted a particular type of legalconsciousness with near hegemony in the juridical field. Westernscholars commenting on the code have traditionally downplayed itsIslamicity or denied it altogether.4 Five years after its promulgation,J.N.D. Anderson set out to examine the ÒdebtÓ which SanhuriÕs modernartifact ÒowedÓ to Islamic shari®a.5 In the most exhaustive and endur-ingly influential study on the subject to this date, Anderson audited thecodeÕs Islamicity with entries under four different categories and iswidely understood to have found Òthe code authorsÕ claims to Islamic-ity exaggerated.Ó6 AndersonÕs view has secured an almost uniformfollowing and the code has generally been dismissed as decidedlyEuropean in origin, with perhaps a ÒslightÓ debt to Islamic law.7

1 See, e.g., the proceedings of The Islamic Marriage Contract: An Internatio-nal Conference, Harvard Law School, Jan 29-31, 1999.

2 See Frank Vogel and Sam Hayes, Islamic Law and Finance (The Hague:Kluwer Law International, 1998).

3 The earliest attempts here would be the Ottoman Majallah and QadriPashaÕs Murshid al-¼ayr¨n.

4 I refer exclusively to the English language discourse on the subject.5 J.N.D. Anderson, ÒThe Shari®a and the Civil Code,Ó Islamic Quarterly, 1

(1954), 29-46.6 Frank Vogel, ÒThe Contract Law of Islam and of the Arab Middle East,Ó

International Encyclopedia of Comparative Law (final draft submitted to publisher,September 1997), 169.

7 N.J. Coulson, citing Anderson and joining him in his findings, in A Historyof Islamic Law (Edinburgh: Edinburgh University Press, 1964), 153. See alsoJoseph Schacht, ÒProblems of Modern Islamic Legislation,Ó Studia Islamica, 12(1960), 122, asserting that Òwhatever the explanatory note of the Egyptian Civil

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With empirical zeal, Anderson set out to calculate the number ofarticles in the code that are derived from Islamic law.8 There are twoproblems with such an approach. First, this seemingly empiricalapproach obfuscates the investigatorÕs bias for a particular reading ofIslamic law laden with metaphysical premises. More specifically, thisreading is premised on the existence of an Islamic essence as a staticmetaphysical concept, one that literally exists outside of history,precedes SanhuriÕs modernisation project and is certainly external tohis will. This premise blocks any discussion of Islamic law as asubjective concept in a historically dynamic project. Accordingly,Anderson approached SanhuriÕs code with the assumption that itsIslamcity could be verified objectively without the need to examineSanhuriÕs creative agency in determining what makes a legal documentIslamic. Second, AndersonÕs metaphysical bias legitimates an ideol-ogically conservative agenda in legal reform. It transforms the act ofcodification into a functional exercise in modernisation and focusesexclusively on the identity aspects of legal reform.9 The code is neverdiscussed as a distributive instrument that allocates wealth and power.Anderson thus disregards the fact that any reconstructive project thataims to ÒmoderniseÓ Islamic law is by default a ÒredistributiveÓ projectthat produces winners and losers.

I will propose an alternative method for assessing the Islamicity ofthe code. My approach is consciously anti-metaphysical, not in the

Code of 1949 may say, Islamic law has not become one of its constituent elementsto any greater degree than it had been in its predecessorÓ; George Sfier, Moderniza-tion of the Law in Arab States (Austin and Winfield, 1998), 93. For an overview ofthe literature, see Vogel, ibid., 168, summarising the situation and concurring thatÒ[i]n the event, the substance of the law was overwhelmingly European in origin;ÓEnid Hill, ÒAl-Sanhuri and Islamic Law,Ó Cairo Papers in Social Science, 10(1987), 71-83 [hereinafter Sanhuri].

8 The accountantÕs zeal is better demonstrated in AndersonÕs later observationthat SanhuriÕs Iraqi civil code Òbetrays a consciously greater debt to the Shari®athan does the Egyptian or the Syrian legislation,Ó ultimately due to the codeÕsretention of more articles from the Ottoman Majalla; see ÒLaw as a Social Force inIslamic Culture and History,Ó Bulletin of the School of Oriental and Asian Studies,20 (1957), 32.

9 For a contemporary functionalist reading of SanhuriÕs scholarship, seeOussami Arabi, ÒAl-SanhuriÕs Reconstruction of the Islamic Law of ContractDefects,Ó Journal of Islamic Studies, 6 (1995), 153-72 [hereinafter SanhuriÕs Recon-struction]; and ÒIntention and Method in SanhuriÕs Fiqh: Cause as UlteriorMotive,Ó Islamic Law and Society, 4 (1997), 200-23 [hereinafter Sanhuri on Cause].While functionalist accounts offer very insightful and sophisticated readings, theytend to overestimate the rationalism of universal categories and depoliticise theirlegal import. For an excellent critique of functionalism in comparative law, seeGunther Frankenberg, ÒCritical Comparisons: Rethinking Comparative Law,ÓHarvard International Law Journal, 26 (1985), 411-55.

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sense of denying the existence of an Islamic essence, but rather in itsinsistence that assessing the Islamicity of a reconstructed artifact can besettled more meaningfully through a genealogical investigation of howits Islamic essence was constituted from the perspective of its drafter. Inthe case of the Egyptian civil code, this requires a genealogy of San-huriÕs Òwill to Islamise,Ó a genealogy that explores his changing per-spective on what makes a legal document ÒIslamic,Ó and underscoresthe external forces that constantly shaped, subverted, and reshaped hisperspective of an Islamic essence.10

I will advance a twofold argument. First, SanhuriÕs judgment on thecivil codeÕs Islamicity changed dramatically between 1942 and 1962.11

While initially celebrating the code as an Islamic document, he endedup by refuting its debt to Islamic law.12 Second, SanhuriÕs change inopinion should be understood in light of his legal consciousness, whichwas divided internally between questions of identity and redistribution.Starting from his days as a doctoral student in France,13 Sanhuriinvariably was invested in two distinct projects, namely, the identityproject of modernising Islamic law and the redistributive project ofemploying modern law to advance social justice. The Egyptian civilcode represents an attempt to resolve this state of discursive and

10 I use the term ÒgenealogyÓ advisedly. It denotes a particular historiography,deeply indebted to Nietzschean philosophy, and politically committed against thesearch for origins, Òbecause this search assumes the existence of immobile formsthat precede the external world of accident and succession.Ó If guided by agenealogical sense, a historical search for origins, Islamic or otherwise, will Ònotdiscover a forgotten identity eager to be reborn, but a complex system of distinctand multiple elements, unable to be mastered by the powers of synthesis.Ó SeeMichel Foucault, ÒNietzsche, Genealogy, HistoryÓ, in The Foucault Reader, ed.Paul Rabinow (New York: Pantheon Books, 1984), 78, 94-95. For an introduction,see Gilles Deleuze, Nietzsche and Philosophy (New York: Columbia UniversityPress, 1983). NietzscheÕs most systematic use of the method was most probably hisOn the Genealogy of Morals, trans. Walter Kaufmann (New York: Vintage Books,1969).

11 See quotes at supra p. 201.12 SanhuriÕs view changed over the years and at certain moments in time he

seems to have contradicted himself. Before the Egyptian Senate in 1948, Sanhuriadopted two positions: On the one hand, he appeased the BarÕs concern for thestability of the legal order by arguing that three-quarters or four-fifths of the coderepresents Egyptian case law; on the other hand, he defended the codeÕs Islamicityby claiming that all its articles are Islamic. See The Egyptian Ministry of Justice,Al-Q¨nân al-MadanÂ: Majmâ®at al-®Amal al-Ta½dÂriyyah (Cairo: 1949), vol. 1,70, 157-59 [hereinafter Preparatory Works].

13 See Al-Sanhâr min khil¨l Awr¨qihi al-Shakh×iyya, ed. Nadia al-Sanhuri andTawfik al-Shawi (Cairo: Al-Zahraa liÕl-I®l¨m al-®ArabÂ, 1988) [hereinafter San-huriÕs memoirs]. In numerous entries, Sanhuri vows to establish a socialist partyfor workers and peasants upon his return to Egypt, while in several other entries heaffirms his dedication to the modernisation of Islamic law along scientific lines.

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existential division. Sanhuri sought to produce a legal document that isboth ÒIslamicÓ and ÒmodernÓ. To this end, he resorted to the category ofthe ÒsocialÓ as a conceptual tool of mediation between his two projects.In the civil code, this act of mediation takes place under an abstractequation whereby: Islamic law = the ÒsocialÓ = modern law. San-huriÕs final statements on the un-Islamicity of the code reflects acollapse in the potentials of the ÒsocialÓ as a tool of mediation betweenthe two projects of identity and redistribution, a collapse precipitated bythe revolutionary turns of the Nasser era.

The essay is divided into four parts, meant concurrently as an argu-ment for, and a chronicle of, the changing relationship betweenSanhuriÕs preoccupation with the two projects of identity and redistri-bution. Part I will locate the genealogy of these two preoccupations inSanhuriÕs doctoral scholarship; part II will trace the genealogy throughSanhuriÕs later contributions to the recueils of his two principalmentors; part III will argue that the 1949 Egyptian civil code attemptedto forge a connection between these two projects by resorting to theÒsocialÓ as a conceptual tool of mediation; and part IV will locateSanhuriÕs changing view on the Islamicity of the civil code in thedisplacement of the ÒsocialÓ by exploring the nature and repercussionsof the Sanhuri/Nasser schism. The examples I offer will be drawnlargely from SanhuriÕs work on contract law theory; I use extensiveblock-quotes to demonstrate this genealogy and allow the readersomething of a first hand encounter with the text.14

Finally, with respect to methodology, I employ the two dyads ofÒmodernity/traditionÓ and Òindividualism/socialismÓ as distinct analyti-cal frameworks under which I locate, cluster, and illustrate SanhuriÕsdiscursive engagement with his two competing projects. Under themodernity/tradition dyad, I will account for SanhuriÕs project ofmodernising Islamic law; the dyad expresses a tension between pre-colonial Islamic law and post-colonial transplants of Western codes,and finds its practical implications in the debate on legal modernisationand secularism as championed by the nationalist elite.15 Under the

14 To my mind, the obsessively fastidious quality of block quotes is furtherjustified by NietzscheÕs insistence that the colour of genealogy is an archival,hieroglyphic grey. See the Preface to On the Genealogy of Morals.

15 I use the term modernity/tradition as the most current English title for theArabic discourse on al-Tur¨th/al-¼ad¨tha. In my opinion, SanhuriÕs views on thedebate between secular and Islamic law is a heteronomous intervention in thislarger discourse which is subject to its disciplinary mechanisms. The most com-prehensive research undertaken by some of the most prestigious Arab intellectualstoday, and discussing the various strands of the discourse, remains al-Tur¨th wa-

206 AMR SHALAKANY

individualism/socialism dyad, I account for SanhuriÕs engagement withthe project of socialising modern law;16 the dyad expresses the tensionbetween individual and collectivist stakes in law, and finds its practicalimplications in the debate over how far the modernising nationalist eliteare willing to instrumentalise law in the redistribution of wealth and thepromotion of social justice.17 Finally, by the ÒsocialÓ I refer to aparticular ideological concept that served both as a slogan and apolitical agenda for resolving the individualism/socialism tension at thebeginning of the twentieth century.18 In the specific context of Franco-American jurisprudence, the starting point of the ÒsocialÓ was theextreme formalism and individualism of the private law regime. Inresponse, the ÒsocialÓ proposed a double agenda of sociologicalinsights and socialist doctrines. Accordingly, a fundamental premise ofthis article is the crucial importance of reading SanhuriÕs Islamic lawscholarship, both methodologically and politically, in light of theFranco-American tradition of anti-formalist legal thought.

ta½addiy¨t al-Õa×r fÂÕl-waßan al-Õarab aw al-aרlah waÕl-MuÕ¨×arah (Beirut: TheCenter for Arab Unity Studies, 1985).

16 The individualism/socialism dyad elaborates on the dichotomy developed inDuncan Kennedy, ÒForm and Substance in Private Law Adjudication,Ó HarvardLaw Review, 85 (1976), 1685.

17 The two dyads are a deliberately exaggerated application of structuralistmethodology. They are warranted by the discursive state of SanhuriÕs scholarship,which lends itself attractively to binary representation, and are meant to emphasisehis phenomenological condition of internal division. It is not my aim, however, tosuggest that a quintessentially inescapable contradiction exists between questionsof identity and redistribution, nor that redistribution is a worthier cause than pro-jects of the Òmerely cultural.Ó The stakes in both causes are often complexly related.See Judith Butler, ÒMerely Cultural,Ó New Left Review (January/February 1998), 2-27. Nonetheless, the present article is deeply indebted to Duncan KennedyÕsstructuralist/poststructuralist method in legal historiography, especially thedevelopment and later qualification of the Òfundamental contradiction.Ó See DuncanKennedy, ÒThe Structure of BlackstoneÕs CommentariesÓ Buffalo Law Review, 28(1979), 205-382; idem, ÒRoll over Beethoven,Ó Stanford Law Review, 36 (1984), 1-55. Works that have influenced this method include George Lukacs, History andClass Consciousness (1968); Jean Piaget, Six Psychological Studies (1967); C.Levi-Strauss, The Savage Mind (Chicago: Chicago UniversityPress, 1966). For adiscussion of KennedyÕs historiography in intellectual legal history, see W. Fischer,ÒTexts and Contexts: The Application to American Legal History of theMethodologies of Intellectual History,Ó Stanford Law Review, 49 (1997), 1065-1111.

18 See Jacques Donzelot, LÕinvention du social (Paris: Librairie Art� me Fayard,1984).

BETWEEN IDENTITY AND REDISTRIBUTION 207

Part I.ÊÊGenealogical Introduction: Two Theses:

Between 1921 and 1927 Sanhuri pursued his doctoral studies at theUniversity of Lyon. Towards this end, he produced two doctoraldissertations: the first, published in 1925, was entitled Les Restrictionscontractuelles ˆ la libert� individuelle de travail [hereafter Les Restric-tions contractuelles];19 and the second, entitled Le Califat, son � volutionvers une societ� des nations orientales, was published in 1926 [here-after Le Califat].20 The subjects Sanhuri chose to investigate in thesetwo dissertations mark the starting point of the genealogical trajectoryon which his two competing preoccupations will be outlined along theaxes of individualism/socialism and modernity/tradition.

1.1.ÊÊIndividualism/Socialism in Les Restrictions Contractuelles:

The significance of Les Restrictions contractuelles for the developmentof SanhuriÕs legal thought may be traced on three levels: Methodo-logically, the dissertation represents a strong critique of the formalistlegal thought of the classical French � cole de lÕex� g� se, and frames themajor outlines of the anti-formalist and sociological legal method thatSanhuri later applied in drafting the 1949 Egyptian civil code;politically, Les Restrictions contractuelles makes a clear ideologicalargument for the redistributive role of law in bringing about socialjustice; and, finally, as an intervention in the institutional politics ofFrench legal academia, the dissertation signifies SanhuriÕs intellectualalliance with an emerging group of progressive law professorsinvolved in a generational battle against the formalism and moralindividualism that characterised the legal scholarship of the older andwell established jurists of lÕ� cole de lÕex� g� se.21 Briefly stated, the topic

19 Paris: Marcel Giard, 1925 [hereinafter Restrictions ].20 Librairie Orientalist Paul Geuthner, 1926 [hereinafter Le Califat].21 Following its publication, Les Restrictions contractuelles received a very

enthusiastic review by Professor Maurice Hauriou, one of the major champions ofthe ÒsocialÓ in public law, and an ardent critic of legal individualism; see MauriceHauriou, Police juridique et fond du droit, a propos du livre dÕAl-Sanhoury (Paris:Recueil Sirey, 1926). The dissertation also received pride of place in EdouardLambertÕs Preface to the collected works of Emanuel Levy, the celebrated Frenchsocialist jurist, in La Vision Socialiste du Droit (Paris: Marcel Giard, 1926).Lambert himself was one the major conductors of anti-formalist legal thought incomparative law, see Bianca Gardella, Anti-Formalist Strands in ComparativeLegal Theory, LL.M. thesis, Harvard Law School, 1998; for a general history ofFrench anti-formalism, see Marie-Claire Belleau, ÒThe ÔJuristes InquietsÕ: LegalClassicism and Criticism in Early Twentieth Century France,Ó Utah Law Review, 2(1997), 379-424; Andr� -Jean Arnaud, Les Juristes face ˆ la societ� du XIXeme si� cle

208 AMR SHALAKANY

of Les Restrictions Contractuelles was the study of ÒstandardsÓ as apolicy instrument for advancing the ÒsocialÓ in modern Western law.Although Sanhuri never defined the ÒsocialÓ as such, he nonethelessused the term to signify one of two notions, either (1) a particular set ofanti-formalist insights associated with sociological jurisprudence, or (2)a progressive corpus of legal doctrines that may be loosely charac-terised as Òsocialist.Ó22

1.1.1.ÊÊThe Social as Sociological Jurisprudence:

From the very first pages of Les Restrictions contractuelles, it becomesevident that Sanhuri consciously experienced his methodologicalcommitments as part of a trans-Atlantic school of sociological juris-prudence, in which the scholarship of Roscoe Pound in the UnitedStates and Fran� ois G� ny in France feature most prominently.23

SanhuriÕs methodological debt to these two jurists is best discerned inhis subscription to the following three sociological insights: (i) an anti-formalist appreciation of the evolving nature of law; (ii) an acute senseof the historical evolution of law as a distributive mechanism betweencompeting individualist and collectivist stakes; and, (iii) a hostilitytowards the mechanical pretensions of legal logic as embodied inFrench and American classical legal thought. In the very first pages ofthe introduction to his dissertation, Sanhuri defined his field of legalinvestigation accordingly:

‡ nos jours (Paris: Presses Universitaires de France, 1975).22 Although Sanhuri relied on the English doctrine of Restraints of Trade to

illustrate his argument, the doctrine will not be discussed in any detail here.Instead, I chiefly concentrate on SanhuriÕs abstract study of ÒstandardsÓ as such, anomission I believe justified by his assertion that Òsi nous avons choisi ce sujet [i.e.restraints of trade] pour le traiter en detail, ce nÕest que pour examiner de plus pr� s,et sur un terrain purement pratique, la notion de Ôstandard.ÕÓ Sanhuri, Restrictions ,26.

23 Edouard Lambert, SanhuriÕs thesis supervisor, enjoyed a long standingfriendship with Pound and both men came to view one other as intellectual allies inthe common project of critiquing the legal formalism of French and Americanclassical legal thought. See Paul Dubouchet, La Pens� e Juridique avant et apr� s lecode civil (LÕHerm� s, 1994), Chapitre XII, ÒRoscoe Pound et Edouard LambertÓ,169-88. See also the letters exchanged between Lambert and Pound, Harvard LawSchool Archives, The Roscoe Pound Correspondence 1907-1964, in particular theletter dated October 24, 1923, in which Lambert relates to Pound the scholarshipSanhuri authored on standards, to which Pound replies on November 9, 1923,stating, ÒI shall await with much interest the work of Mr. Sanhoury on standards.That subject grows in importance with us every day.Ó My gratitude goes to Marie-Claire Belleau, who drew my attention to these letters.

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Si lÕon cherche ˆ p� n� trer plus compl� tement les r� alit� s sociales et� conomiques [du droit], on constate quÕon est en face dÕun conflit entrelÕint� r� t de lÕindividu et lÕint� r� t de lÕentreprise; en dÕautres termes, on setrouve oblig� dÕaborder une des faces dÕun ph� nom� ne d� licat: la luttedes classes ou le conflit entre le travail et le capital.24

The conflict between social and individual values is thus the veryessence of law, its resolution not merely an exercise in legal logic butrather a question of clear distributional consequences, and the specificcontext for his analysis, the English doctrine of Restraints of trade, isno exception. What makes the latter doctrine interesting, however, is thesociological mode in which it resolves this seemingly ubiquitousconflict in its latest lutte des classes manifestation:

Le droit est, en r� alit� , une science qui a pour but de concilier des id� escontradictoires; chaque principe fondamental de cette science est unetransaction, un compromis. Du fait que le droit, par sa d� finition m� me,r� git les rapports socieaux, chaque probl� me juridique soul� ve n� ces-sairement un conflit de principe, et met en jeu des int� r� ts essentielle -ment oppos� s . . . Ce qui est sp� cial ˆ cette th� orie [i.e. restraints oftrade], ce nÕest pas tant lÕid� e de conciliation elle m� me, que la fa� ondont cette conciliation doit se r� aliser.25

The need for law to evolve and accommodate the ever changingconditions of society is affirmed as yet another fundamental anti-formalist insight of sociological jurisprudence. To this effect, Sanhuriemploys the most celebrated sociological bon mot of trans-Atlanticlegal realism at the time, affirming that law is not simply mathematics:ÒLe droit . . . nÕest pas une science math� matique ou il faut desformules et des � quations. CÕest la science sociale par excellence et touteffort tendant ˆ trop le syst� matiser et ˆ trop le dogmatiser, le condamneˆ la stagnation.Ó26

1.1.2.ÊÊThe ÒSocialÓ as progressive doctrine:

It is clear that the insights of sociological jurisprudence do not implyany political commitment to a leftist or progressive social agenda.However, reading through the dissertation, one soon realises thatSanhuriÕs championing of standards is not motivated only by an a-political concern for legal methodology. Instead, he sets out to contrastÒstandardsÓ against Òrules,Ó enumerating the advantages of the former

24 Sanhuri, Restrictions , 5.25 Ibid., 8.26 Ibid., 69.

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in an argument quite representative of leftist legal academia at the time.First, standards were understood to herald a return from contract backto status and thus from individualism to a more collectivist legal order.Second, standards, due to their concrete embededness in resolvingeveryday questions of law, were understood to allow for a greater mea-sure of individualisation of justice, as opposed to the impersonal justicedispensed by rules. Finally, standards were generally advanced asbetter conductors of the socialist spirit in law. Leftist lawyers and aca-demics were thus intellectually and politically invested in the defence ofstandards, and this phenomenon cut across both French and Americanscholarship at the time.27 By defending standards against rules,Sanhuri was defending no less than the interests of the proletariat:

Une r� action se fait sentir, aujourdÕhui, contre lÕesprit individualiste etmat� rialiste qui a marqu� le droit pendant tout le cours du XIX si� cle . . .La p� n� tration de lÕesprit socialiste dans la l� gilsation [sic] moderne esttrop connue pour que nous ayons a insister ici. Presque toute lal� gislation industrielle et toutes les institutions modernes sont impr� g-n� es plus ou moins de cet esprit, qui sÕaffirme de plus en plus aveclÕimportance croissante du prol� tariat industriel.28

In what is almost certainly a reference to Sir Henry MaineÕs notoriousstatement on the move of modern Western law from Òstatus tocontract,Ó29 Sanhuri prophesies the rise of standards as signifing thereturn to a more socialist ÒstatusÓ regime:

Avec les mouvements economiques et philosophiques du XVIII si� cle, etla pr� dominance du principe de lÕautonomie de la volont� , le contrat apris le place du statut. Nous assistons aujourdÕhui ˆ une r� action; avecla d� veloppement de lÕindustrie et du commerce, les statusr� apparaissent sous une forme � conomique plus souple. Ces statusnouveaux sont r� gis principalement par des standards.30

Accordingly, by defending a move towards standards, Sanhuri wasunequivocally situating himself on the left of the legal academy;31 the

27 However, much like the ÒsocialÓ itself, standards also were advocated byconservative legal scholarship on a moral basis. See generally Veronique Ranouil,LÕAutonomie de la volont� , naissance et � volution dÕun concept (Paris: PUF 1980);Morton Horwitz, The Transformation of American Legal Thought (OxfordUniversity Press, 1992), Chapter 2 ÒThe Progressive Attack on Freedom of Contractand Objective Causation.Ó

28 Sanhuri, Restrictions , 61.29 Sir Henry Maine, Modern Law (New York, 1867); Chapter V, ÒPrimitive

Society and Ancient Law.Ó30 Ibid, 60-61.31 The notion that the socialisation of law through standards entailed a

historical ÒreturnÓ to a status regime was very popular when Sanhuri wrote his

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different methodological and political implications entailed in this movemay be summarised thus:

Rules Standards

contractindividualismbourgeoisieautonomie de la volont�logicabstract justicerigidityimmobility

statussocialismproletariatcollective labour contracts/public utilitiesexperienceindividualised justiceflexibilityevolution

1.2.ÊÊModernity/Tradition in Le Califat:

A year after finishing Les Restriction contractuelles, Sanhuri submittedhis second doctoral dissertation, Le Califat, in 1926. At heart, L eCalifat is an exercise in modernity/tradition discourse. Its professeddoctrinal aim is to modernise the traditional institution of the Islamiccaliphate, and develop it towards an international organisationmodelled after the newly established League of Nations. On a deeperand more personal level, Le Califat appears to be an existential exercisein which Sanhuri confronts the anxieties of post-colonial identity andstrives to resolve his own conflicting feelings for the West. Thedissertation is dedicated, in full humanist rigour, Ò[a] tout oriental quisait concilier ses attaches religieuses, nationales et raciales avec lesliens de sa Grande Patrie: lÕOrient, et avec ceux dÕune Patrie plusgrande encore: lÕHumanit� .Ó

On the methodological level, Le Califat is indebted to the anti-formalist interpretations on the nature of law and legal reasoning whichSanhuri had argued earlier in Les Restrictions contractuelles. Sanhuriasserts already in the avant propos the fundamental distinction betweenÒsacredÓ and ÒtemporalÓ aspects of Islam, and unequivocally locateshis study of Islamic law in the realm of the latter:

dissertation, and anticipates the later cyclical readings of private law history thatunderpin his jurisprudence on the Egyptian civil code. See Pound, ÒThe NewFeudalism,Ó Commercial Law Journal, 35 (1930); Nathan Isaacs, ÒStatus to Con-tract and Back AgainÓ; for a critique of the progressive investment in socialisinglaw through standards, see Duncan Kennedy, ÒForm and Substance in Private LawAdjudication,Ó Harvard Law Review, 89 (1976), 1685-1778.

212 AMR SHALAKANY

Je parle tres souvent de lÕIslam, au cours de ce travail. Dans mapens� e, il ne sÕagit pas dÕun corps de croyances strictement confes-sionnelles. Envers lÕIslam religieux, jÕeprouve, dans ma qualit� demusulman, lÕattachement le plus sinc� re et le plus profond respect. MaiscÕest de lÕIslam culture, et non pas de lÕislam cultuel, que je me pr� -occupe dans cette etude . . . il [i.e. lÕislam] est aussi une civilisation.Ceux qui croient ˆ ses dogmes sont les adeptes de la R� ligion; ceux quiadh� rent a sa culture sont les citoyens de la Patrie.32

This paves the way for an expanding set of distinctions aroundwhich his dissertation develops, and allows him to propose the seculardevelopment of the caliphate as a modern League of Nations, aninstitution of politics, not religion, based on a cultural, rather thancultist, history of Islam. A short list of these distinctions would include:

Sacred Profane

GodReligionReligiousFaithConfession

CaliphPoliticsTemporalCivilisationHomeland (patrie)

Believers CitizensIslam as cult Islam as culture

However, Le Califat is above all an exercise in nationalist activismon two main fronts: (1) the nationalism of an anti-colonial projectwhich finds in the caliphate an institutional framework for itsempowerment, and (2) the nationalism of the modernising elite whichaims to transform the ÒcolonyÓ into a modern nation-state. SanhuriÕsprogram for the reconstruction of Islamic law is thus manifested onthese two fronts.

1.2.1.ÊÊAnti-formalism in the service of anti-Colonialism:

Le Califat was written at a very significant juncture in the history of theIslamic caliphate. The sultan of the Ottoman Empire had been caliph tothe majority of Arab Muslims up to the end of the First World War,when the newly-established Republic of Turkey decided unilaterally toabolish the institution of the caliphate. Thus Arab subjects of theOttoman empire found themselves in 1924 without a caliph for the firsttime in centuries. This coincided with their own submission to formal

32 Le Califat, lÕavant-propos de lÕauteur, xv.

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colonial mandates under the auspices of the newly-established Leagueof Nations. One can therefore appreciate the sense of urgency withwhich Sanhuri writes the first line of Le Califat: ÒPour la seconde fois,dans lÕhistoire de lÕIslam, le monde musulman se trouve sans Calife...La question du Califat est alors devenue dÕune actualit� br� lante.Ó33

Le Califat thus became the anti-colonial vehicle of a budding, pan-Oriental, nationalist movement whereby a medieval, inept, and historic-ally despotic institution may develop into a modern beacon of anti-colonial struggle and nationalist regeneration.34 More interestingly,aided by an anti-formalist appreciation of Islamic law, Le Califataspires to resolve one of the most basic and enduring contradictions ofpost-colonial nationalist movements, namely, how can the Òcolony,Ó inits anti-colonial struggle, adopt from Europe a model of political com-munity, and yet, concurrently, retain its distinct national identity?35

The contradictions of modern ÒOrientalÓ nationalism may thus bearticulated: while nationalist movements promise to liberate the Muslimworld from European colonialism, they also threaten to dissolve aunified Muslim front into competing nation-states, do away with thecaliphate, and rob the ancient institution of its role in subsuming thisemerging plethora of Muslim patries and preserving their Islamicidentity. Surveying the present conditions of twenty-five Muslimcountries, Sanhuri invariably concludes that nationalist movements areuniformly responsible for ÒlÕindiff� rence relative avec laquelle ont � t�accueillis les d� bats du r� cent Congr� s Islamique du Califat tenu auCaire.Ó36 In response to this dilemma, Le Califat submits concreteproposals for transforming the medieval institution into a pseudoLeague of Nations, a modern political affiliation that would accommo-date the contradictory drives of unity and diversity which animateOriental nationalism. To thus reconceptualise the caliphate, Sanhurirequired nothing less than a leap of methodological faith, a leap thatwas facilitated by his anti-formalist appreciation of the nature ofIslamic law in general, and the caliphate in particular.37 His Ògrandes

33 Ibid., xi.34 On SanhuriÕs views of the despotic and inept characteristics of the caliphate,

see Le Califat, 48.35 Sanhuri, Le Califat, 512. See Partha Chatterjee, Nationalist Thought and

the Colonial World: A Derivative Discourse? (London: Zed Books, 1986).36 Sanhuri, Le Califat, 512. A controversial book by the Azharite sheikh, Ali

Abdel-Razek, was banned around the same time the Congress was held due to itsclaim that the caliphate was not an essential component of the Islamic polity. SeeAlbert Hourani, Arabic Thought in the Liberal Age, 183-92.

37 I use the term Òanti-formalistÓ advisedly. The newly established League ofNations in Geneva had posed a serious challenge to classical international legal

214 AMR SHALAKANY

lignes dÕun programme dÕavenirÓ is based on distinguishing the sacredfrom the temporal aspects of Islam, isolating the latter and subjectingthem to a program of forced development.38 Ultimately, the caliph isreduced to a mere figurehead who Òr� unirait ainsi par une jonctionfinale dans sa personne les deux sortes dÕattributions [religieuses etpolitiques], sans emp� cher quÕelles restes distinctes dans leur fonction-nement pratique.Ó39

Thus the contradictions of Oriental nationalism are resolved. Theanti-colonial struggle of the nationalist movements is expected to flowerinto modern, independent nation-states fashioned after those of Europe.The Islamic identity and heritage of these nation-states is thenpreserved through their membership in a modern League of OrientalNations which acts as the descendant and successor of the medievalcaliphate. This elaborate scheme is understood to be logically possiblewithin the structures of Islamic law, and in no way compromises theauthenticity of the Islamic caliphate.

1.2.2.ÊÊAnti-formalism in the service of modernisation:

Towards the end of Le Califat, Sanhuri elaborates a program for theÒ[a]pplication des principes du droit mussulmanÓ which goes throughan initial Òphase scientifique,Ó followed by a second Òphase l� gislative.ÓWhile SanhuriÕs program is not very elaborate (a mere six pages in adissertation of 608 pages),40 it is nonetheless very significant since itwas reproduced again in a more elaborate form in two subsequentarticles,41 and was largely carried by Sanhuri as he Òtook up his ownchallenge when he began his career in the Law Faculty of Cairo

thought in the early 1920Õs, bringing on a successful anti-formalist reconceptualisa-tion of international law in order to account for this anomalous institution. Infashioning the new caliphate after the League of Nations, Sanhuri was thusappealing to an anti-formalist spirit that characterised the League of Nations assuch. As for his reinterpretation of Islamic law, the term Òanti-formalistÓ applieshere in the same way it may be used to describe the scholarship of Rashid Rida onthe same subject. For the anti-formalist readings of the League of Nations underinternational law, see A. Alvarez, ÒThe New International Law,Ó Grotius Society(April 16th, 1929) 35-51; Nathaniel Berman, ÒModernism, Nationalism, and theRhetoric of Reconstruction,Ó Yale Journal of Law and the Humanities, 4 (1992),351-80.

38 See in general, Le Califat 535-607.39 Ibid., 571.40 Ibid., 578-84.41 Sanhuri, Redrafting the Code; idem, ÒLe Standard Juridique,Ó in Recueil

dÕ� tudes sur les sources du droit, en lÕhonneur de Fran� ois G� ny, Tome II Lessources g� n� rales des syst� mes juridiques actuels (Paris: Librarie du Recueil Sirey,1935) at 144 [hereinafter, Le Standard].

BETWEEN IDENTITY AND REDISTRIBUTION 215

University [and] started his research and scholarly writings on com-parative law (the Ôscientific phaseÕ) [and] then turned to the ÔlegislativephaseÕ with his work on revising the Iraqi and Egyptian codes.Ó42 EnidHill provides an excellent analysis of SanhuriÕs program as articulatedin Le Califat, which I will largely draw upon and paraphrase here-after.43 In the first scientific stage, Sanhuri argues that we must start bydistinguishing the sacred from the temporal aspects of Islamic law,distinguish further within the latter between permanent and variablelegal rules, and then direct our attention to a scientific and collectivestudy of these variable rules in light of comparative law. This should befollowed by a legislative phase whereby the conclusions of the scienti-fic study are articulated according to the modern principles of codifica-tion. Codification should proceed gradually, and Sanhuri proposes aÒcommon law solutionÓ whereby Islamic law acts as a default sourcein the presence of gaps. Sanhuri also advocated the articulation ofIslamic law under Òmore flexible formulas,Ó a clear allusion to hiswork on standards. Both these proposals were adopted when Sanhuriset out to draft the new Egyptian civil code.

Part II.ÊÊGeneaology Pursued: Two Mentors:

Between the completion of his doctoral work in 1926 and his govern-ment appointment to draft the new Egyptian civil code in 1938, Sanhuricontributed two important articles in French to the Recueil dÕ� tudes ofhis two major intellectual mentors in France, Edouard Lambert andFran� ois G� ny. Both jurists exercised a great deal of methodologicalinfluence on SanhuriÕs scholarship, Lambert as his thesis supervisor,and G� ny as the leading juriste inquiet to whom, in LambertÕssomewhat jealous words, Sanhuri Òpara”t avoir � t� particuli� rements� diut.Ó44 It therefore comes as no surprise that SanhuriÕs two contri-butions to his mentorsÕ recueils confirm his ongoing intellectualpreoccupation with the two competing projects of socialising modernlaw and modernising Islamic law. I will briefly discuss these twoarticles to the extent they depart from his earlier doctoral work.45

42 Hill, Sanhuri, 39.43 Ibid., 35-39.44 Edouart Lambert, preface to Abdel-Razzak al-Sanhuri, Les restrictions

contractuelles , at x.45 Between 1926 and 1938, Sanhuri wrote two treatises on contract law in

Arabic as well as a major article on the need to redraft the Egyptian civil code, part

216 AMR SHALAKANY

2.1.ÊÊGenyÕs Recueil: The Individualism/Socialism Contribution:

The publication of Fran� ois G� nyÕs three-volume Recueil in 1935represented a major event for all legal scholars who had participatedfor over thirty years in the critique of lÕ� cole de lÕex� g� se.46 SanhuriÕscontribution to the Recueil was an article fittingly entitled ÒLe standardjuridique.Ó47 While the article largely reproduces the arguments Sanhurielaborated in his first doctoral dissertation, it nonetheless offers somenew insights that are useful in constructing a genealogical account ofthe various intellectual influences on his legal methodology, and theirlater influence on his project of modernising Islamic law. Sanhuri startsthe article by recognising the methodological debt that he owes to hisvarious mentors, making it clear that his scholarship on legal standardsis merely a continuation of a renegade movement in legal scholarship,with its genealogical fountainhead in the French jurist Saleilles, who:

Dans son ouvrage c� l� bre LÕIndividualisation de la peine ... a � crit il y amaintenant plus de trente ans, ÔIl se produit aujourdÕhui un mouvementg� n� ral ayant pour objet de d� tacher le droit des formules purementabstraites qui, pour le vulgaire tout au moins, paraisait le soustraire aucontact de la vie. Il nÕest pas douteux que le droit civil, t™t ou tard,subira une transformation de ce genre .Õ [emphasis in original text]48

From Saleilles, the methodological influences on Sanhuri extend in atransatlantic trajectory to include G� ny, Lambert, and Hauriou inFrance, and Pound in the United States, thus bringing together theinsights of the juristes inquiets as well as one of the most celebratedAmerican legal realists. These scholars are characterised as membersof a long-standing alliance, unified in their common objective ofÒattackingÓ the formalism and individualism of the classical schools oflegal thought in France and the United States. Sanhuri jubilantlyconcludes that this attack had been so devastating that Ò[o]n sÕest d� jˆcompl� tement affranchi de la m� thode, jadis pr� dominante, de lÕ� coledes interpretes du Code civil.Ó49

of which he translated into French and contributed to LambertÕs Recueil. I will notdiscuss SanhuriÕs two Arabic treatises here, given their limited contribution to themethodological excursion which is the purpose of this study. For a full biblio-graphy of SanhuriÕs scholarship see Hill, Sanhuri, 138-39.

46 For an introduction to G� nyÕs methodology and his significant role in thedevelopment of French anti-formalist legal thought, see Du Bouchet, Pense�juridique, chap. xi, ÒG� ny et lÕ� cole du droit libre.Ó

47 Sanhuri, Le Standard, 144.48 Ibid., 144.49 Ibid., 144-45.

BETWEEN IDENTITY AND REDISTRIBUTION 217

2.2.ÊÊLambertÕs Recueil: The Modernity/Tradition Contribution:

SanhuriÕs contribution to LambertÕs Recueil is essentially a Frenchtranslation of the last section of his 1935 article in Arabic on the needto modernise Islamic law in redrafting the Egyptian civil code.50 Whenthe article was contributed to the Recueil in 1938, Lambert and Sanhurialready had been appointed by the Egyptian government as the onlytwo members of the committee charged with drafting the new civil code.The article itself, however, is largely an expanded version of SanhuriÕsprogram as set out in Le Califat, and its more substantive contributionswill be discussed at greater length in Part III of this article where wewill discuss the new Egyptian civil code of 1949.

Part III. Genealogy Concluded: Two Agendas, One Code:

In my view the Egyptian Civil Code of 1949 represents an amalgamof two agendas, meant to resolve two sets of tensions: the two compet-ing dualities of modernity/tradition and individualism/socialism.51

Throughout the different stages of drafting the code, defending it beforethe Egyptian senate, and finally commenting on it in his treatise al-WasÂß, Sanhuri invariably describes the code as both embodying theÒlatest achievement of modernity,Ó namely the Òsocial,Ó while concur-rently representing Òthe great victory of Islamic law.Ó While thesecompeting claims confirm his longstanding engagement with the twoagendas of identity and redistribution, I argue that the novelty of thecode lies in SanhuriÕs attempt to forge a theoretical connection betweenthese two agendas, a connection based on the ingenious equation that

50 Sanhuri, ÒLe Droit musulman comme � l� ment de refonte du code civil� gyptien,Ó Recueil dÕ� tudes en lÕhoneur dÕEdouard Lambert, vol. III (Paris:Librairie g� n� rale de Droit et de Jursiprudence, 1938) 621-42.

51 I rely here on the following materials: Abdel-Razzak Al-Sanhuri, ÒWujâbTanq½ al-Q¨nân al-Madan al-Mi×rÂ,Ó (On the Necessity of Redrafting theEgyptian Civil Code) Majallat al-Q¨nân waÕl-Iqtiרd, 6 (1936) 1-142 [hereinafterRedrafting the Code]; ÒMashrâÕat Tanq½ al-Q¨nân al-Madan al-Mi×rÂ,Ó (TheDraft Egyptian Civil Code) Majallat al-Q¨nân waÕl-Iqtiרd, 12 (1942) 550-70[hereinafter The Draft Code]; citation of these two article will reflect their pagenumbers as collected in MajmâÕat Maq¨l¨t wa-ab½¨th al-Ust¨dh al-Duktâr Abdel-Razzak al-Sanhuri, ed. Nadia al-Sanhuri and Tawfiq al-Shawi (Cairo: CairoUniversity Press, 1992); al-WasÂß fi Shar½ al-Q¨nân al-Madan al-JadÂd (TheIntermediate Treatise on the New Civil Code) 10 parts (Cairo: 1952-1970)[hereinafter al-WasÂß]; Egyptian Ministry of Justice, al-Q¨nân al-MadanÂ: MajmâÕatal-ÕAmal al-Ta½dÂriyah (The Civil Code: Preparatory Works), 7 vols. (Cairo 1949)[hereinafter Preparatory Works].

218 AMR SHALAKANY

modern law = the ÒsocialÓ = Islamic law. I will illustrate this argumentin two steps. First, I will discuss the individualism/socialism dimensionof the code to demonstrate how Òmodern lawÓ is equated with theÒsocial;Ó second, I will move on to the modernity/tradition componentof the code in order to demonstrate how Sanhuri equates the ÒsocialÓwith Islamic law. A familiarity with the Franco-American tradition ofanti-formalist legal thought is indispensable to grasp this equation, asSanhuri relies on a particular reading of the philosophy of legal historythat was popularised at the beginning of the twentieth century. Whilethis reading appears to belong exclusively to the Western history ofprivate law, Sanhuri expands its relevance to include Islamic law byadopting a universal interpretation of the nature of law as a humanistartifact.

3.1.ÊÊThe Individualism/Socialism Code:

A recurring claim which Sanhuri makes about the civil code is that itembodies the Òlatest achievements of modernity, refinements of ourtimes, and civilisation of our age.Ó52 A closer investigation of thismodernity par excellence reveals that it is quite simply the ÒsocialÓpackaged as a code. For organisational purposes, I shall group thedifferent elements that inform the ÒsocialÓ impulse in the Code undertwo main components, each mirroring its earlier articulation in San-huriÕs doctoral work: (1) the ÒsocialÓ as the promotion of socialist doc-trine, and (2) the ÒsocialÓ as an artifact of sociological jurisprudence.The legal modernity that Sanhuri sought to emulate was not merely atechnical endeavour of providing a sophisticated normative order forthe material advances of Islamic society; rather, it was a highly politi-cised modernity, conceived as the direct result of ideological battles.

3.1.1.ÊÊThe Social as Socialist Doctrine:

After Sanhuri finished work on the civil code and submitted its firstdraft for comments in April 1942,53 several members of the legal com-munity criticised the draft as premature, given the prevailing conditionsof World War II. These critics argued that drafting the code should bepostponed until the war came to an end and the future direction ofhuman civilisation was settled. Their concerns were hardly overstated;

52 See The Draft Code 172, and, to the same effect, 173, 177, 184, 186; seealso al-WasÂß, vol. 1, 98; Preparatory Works 18, 24.

53 The first public debate over the Code took place at the Royal GeographicSociety on April 24, 1942.

BETWEEN IDENTITY AND REDISTRIBUTION 219

when Sanhuri submitted the draft code for comments, the Nazi armywas on Egyptian soil and the country seemed poised for Germanoccupation.54 Sanhuri, however, had very set views on the issue:

I do not share the concerns of those people who demand the delay ofrevising the civil code . . . our only course of action now is to anticipatethe eventual triumph of socialism after the end of the war, and preparefor its social and economic repercussions. As you will notice, theproposed civil code manifests this modern sign of the times.55

A colloquial summary of the above quote might read as follows:Sanhuri has seen the future, it is socialism, and it has been codified inhis proposed law. The doctrinal repercussions of socialism receive amore concrete articulation in the specific context of contract law and theposition of autonomie de la volont� :56

The draft does not sacrifice the collective interests of society for theinterest of individual freedom, nor does it consecrate autonomie de lavolont� as the locus of all contractual relations. By contrast, the draftcode attempts to achieve a balance between the interests of theindividual and the collective. By the same token, the draft code does notallow the strong party in a contractual relation to injure the interests ofthe weaker party under the guise of individual freedom; the code doesnot licence individuals, regardless of their economic and social power,to abuse weak parties. . . In this manner our draft code has come tochampion social justice and embody the latest achievements of thetwentieth century, the refinements of our times, and the civilisation ofour age.57

I will now offer a brief elaboration on the above passage bydiscussing how the ÒsocialÓ was incorporated in the fields of contractand tort law.

i.ÊÊThe Critique and Rehabilitation of Autonomie de la Volont� :In describing how the civil code incorporated several of Òthe generaltendencies of the modern codes,Ó58 Sanhuri places recent developments

54 Only two months earlier, the British forces of occupation, fearing pro-Axissentiments, had almost forced King Farouk to abdicate the throne; the entirecountry was in a state of panic until the Allies prevailed at al-ÕAlamein i nNovember 1942. See Berque, Egypt Imperialism and Revolution, 559-82.

55 Sanhuri, The Draft Code, 172.56 In Arabic, MabdaÕ Sulߨn al-Ir¨dah. I use the French term, however, since

both the doctrine and the Arabic terminology are derived from French jurisprudence.SanhuriÕs critique of autonomie de la volont� builds on a long tradition of critiqueby progressive jurists; see Ranouil, LÕAutonomie de la volont� .

57 Sanhuri, al-WasÂß, vol. 1, 184-86.58 Ibid., 74.

220 AMR SHALAKANY

in autonomie de la volont� at the forefront of these tendencies. Insummarising the development which the principle had undergone fromthe nineteenth century to the moment of drafting the code, Sanhuriestablishes what may be described as a Òrise-and-fall narrativeÓ:

This principle [of autonomie de la volont� ] has occupied an importantposition in modern laws due to the hegemony of individualist tendenciesresulting from the development of the economic system. However,continued economic development has led to the emergence of large-scale enterprises and an ensuing imbalance in the economic powers [ofcontracting parties]. All this has paved the way for the emergence ofsocialist schools of thought in opposition to the reigning individualismof the time. As a result, the principle of autonomie de la volont� cameunder vociferous attacks, and its adversaries subjected it to ameticulous critique. However, a group of moderates have lately set outto achieve a balanced reconstruction in this field.59

The question thus becomes what is SanhuriÕs critique of autonomiede la volont� , and what is the nature of the ÒbalancedÓ reconstructionthat he clearly advocates? The first thing to notice here is the completeabsence of internal critiques of gaps, conflicts, or ambiguities within theclassical theory of autonomie de la volont� . Instead, Sanhuri offersonly two types of external critique, the first ideological and the secondpractical. In the first mode, autonomie de la volont� is presented as aninternally coherent theory that was simply Òtaken to an extreme by itsprotagonists.Ó60 The ensuing ideological critique is thus one of bal-ancing against recent socio-economic developments:

The individualism behind autonomie de la volont� , may be accountedfor by the economic conditions of the eighteenth and nineteenth centu-ries. However, the further development of these very same economicconditions has led to the large-scale enterprises of today, which have inturn given birth to collective labour movements and the rise of thesocialist spirit to challenge the individualism of the past.61

In the second mode of critique, Sanhuri argues that autonomie de lavolont� is practically incapable of accounting for contemporarydevelopments in contract law where the enforcement of obligations Òistoday premised more on social solidarity as opposed to the individualwill.Ó62 With these two critiques in mind, Sanhuri moves on to describethe newly compromised position of autonomie de la volont� in the

59 Ibid., 141.60 Ibid., 147.61 Ibid., 146.62 Ibid., 115.

BETWEEN IDENTITY AND REDISTRIBUTION 221

articles of the Egyptian civil code. Although the principle continues tooccupy a central position in the conceptual structure of the code, itsscope has nonetheless been subjected to Òa set of limitations by whichthe law today restricts the field of autonomie de la volont� . The lawrecognises such autonomie, and yet limits its scope to a reasonablecircle whereby la volont� is balanced against justice and the publicgood.Ó63 Towards this end, the code adopted a wide variety of pro-visions, taking Òthe side of the weaker party to protect him and restoreeconomic balance to the values exchanged by the contractual relation-ship;Ó64 the most typical example here would be labour contracts,Òwhich are now teeming with rules aimed at protecting workers andgranting them rights that they were previously denied, such as the rightto unionise and the right to strike.Ó65

ii.ÊÊExamples of the Individualism/Socialism Balance:I will briefly reflect on three doctrinal examples to illustrate how thecivil code set out to socialise modern contract law. The ÒsocialÓ spirit ofthese doctrines is further significant if we keep in mind that Sanhurirelied on these very same doctrines to argue the ÒIslamicisationÓ ofEgyptian contract law, an argument which built on his deep-seatedhumanist reading of the history of legal individualism.

a.ÊÊUnconscionability :At heart, the doctrine of unconscionability requires judges to intervenein Òprocedurally just contractsÓ in order to restore Òsubstantive balanceÓwhere there is a disproportionate exchange in economic values.66 TheEgyptian civil code addresses the issue under the doctrine of istighl¨l orÒexploitation,Ó developed in Article 129. Sanhuri explains this articlethrough a cyclical reading of private law history:

Unconscionability is a social problem that laws have not yet been ableto resolve in a satisfactory way since the problem is ultimately one ofeconomic and moral considerations of a fickle nature. When the legalsystem is a product of a civilisation founded on individualist values, thesystem will pay less attention to the question of unconscionability dueto the hegemony of autonomie de la volont� in its doctrinal structures.

63 Ibid., 149.64 Ibid., 149.65 Ibid., 115.66 See A.T. von Mehren, International Encyclopaedia of Contract Law, vol.

VII, chap. 1, 64-81, and chapter 9, 41-62. I use the Common Law term Òuncon-scionabilityÓ as the closest functional analogue to the Arabic legal term employedby the Egyptian civil code: Òal-ghabnÓ.

222 AMR SHALAKANY

However, if civilisation departs from individualist values, and thedoctrine of autonomie de la volont� gradually loses ground, the legalsystem will then intervene to put an end to unconscionability.67

Sanhuri thus advances a general theory about the historical develop-ment of the philosophy of legislation. The image proposed is that oftwo diametrically opposed civilisations, one individualist, the othersocialist, which in turn entail two diametrically opposed legal responsesto the question of unconscionability. The history of law from theRoman Empire to the present day is then accounted for, in humanistterms, as a continual to-and-fro between those two poles: Whereas ÒtheRomans were saturated by an individualist spirit which . . . enforcedunconscionable contracts . . . the rise of Christianity in medieval Europeled to the fall of the individualist spirit and allowed ecclesiastical juriststo constrain the application of autonomie de la volont� and expandedthe scope of unconscionability as a legal reason for refusing theenforcement of contractsÓ; however, Òin the wake of the French revolu-tion, the individualist spirit grew strong once more . . . to the extent ofenforcing unconscionable sale of property contracts. The French civilcode incorporated this spirit, and the old Egyptian civil code followedsuit.Ó68 SanhuriÕs new code responded to the civilisational fall ofindividualism in the twentieth century by adopting the modern subject-ive theory which expands the scope of unconscionable terms that maybe refused enforcement by the judge.69 The progressive nature of thearticle caused a controversy in the Egyptian Senate and the article wasalmost deleted despite the insistent argument that Òin terms of itspracticality, all socialist legal systems have already adopted similararticles due to the economic imbalance of contemporary transactions.Ó70

b.ÊÊUnforeseen Events:Closely related to the doctrine of unconscionability in the civil code isthe doctrine of al-½aw¨dith al-ߨri¾a or Òunforeseen eventsÓ underwhich the judge may intervene to restore economic balance, alter thecontractual obligations of the parties, or exempt the prejudiced party ofhis contractual obligations altogether. Much like Article 129, Sanhuriaccounts for Article 147/2 as the latest enactment of the aforementionedhistorical oscillation between individualist and socialist civilisations:

67 Sanhuri, al-WasÂß, vol. 1, 356.68 Ibid., 356-57.69 Ibid., 357-58.70 Ibid., 199.

BETWEEN IDENTITY AND REDISTRIBUTION 223

Given that the theory of unforeseen events expresses a strong moralimperative, namely, protecting the prejudiced party when contractualbalance has been disrupted, it is hardly surprising that the theory hashad a stronger historical presence in religious legal systems. It hasappeared in the Middle Ages in canonical law, and has had anunequivocal imprint on Islamic jurisprudence.71

However, with the rise of autonomie de la volont� and the ÒwilltheoryÓ conception of contract obligations as being founded on mutualconsent, the doctrine of unforeseen events Òwas dealt a mortal blow atthe hands of the civilistes of old French law, and disappeared altogetherunder the pressure of pacta sunt servanda.Ó72 According to Sanhuri, thedoctrine thrives today only because of its public law rehabilitation atthe hands of the French Conseil dÕ� tat in the wake of World War I.73 Itis important to read this positive image of public law impressing onprivate law in the context of the influence on Sanhuri by the legalthought of the French juristes inquiets; celebrating public law was aclassic move meant to legitimate the redistributive interventions of thestate in market relations, and, as such, was defended by manyprogressive legal thinkers at the time.

c.ÊÊInterest in Contract Law:The last example of the incorporation of the ÒsocialÓ in contract law isthe numerous constraints by which the code limits the scope and extentof interest rates on contractual obligations and accordingly departsfrom the individualist spirit that characterised the old Egyptian civilcode.74 The importance of these provisions will become more evidentwhen we discuss how Sanhuri located in Islamic law the same ÒsocialÓspirit that informs these articles, arguing that a complete departure fromcapitalism towards a socialist economic system would concurrentlyexpand the scope of these articles and insure the unmitigated applica-tion of the Islamic law on rib¨.

71 Ibid., 633.72 Ibid,. 634.73 Ibid., 639-41.74 The most important examples are articles (226) and (227), which provide for

a lower capping on interest rates than previously stipulated in the old code; Article229 empowering the judge to reduce interest rates or eliminate interest from thecontract altogether; Article 232 prohibiting compound interest, which had beenpreviously sanctioned; and finally Article 542, which stipulates that if the partiesdo not agree on an interest rate in loan agreements, the loan is considered interestfree. See Preparatory Works, 576-86, 588-89, 595-97; Sanhuri, Maרdir al-¼aqq fÂal-Fiqh al-Isl¨mÂ, vol. 3 (Cairo: Arab League Publications, 1956), 253-77; Khalil,Rib¨ in SanhuriÕs Code, 30-33.

224 AMR SHALAKANY

iii.ÊÊThe ÒSocialÓ in Torts:If the hallmark of the ÒsocialÓ in contract law is the move away fromautonomie de la volont� , then, by the same token, Sanhuri argues thatthe hallmark of the ÒsocialÓ in tort law is the move from a subjective toan objective theory of delictual liability, that is from a regime based onthe subjective state of mind of the tortfeasor, to a regime based on theobjective ramifications of the tortfeasorÕs actions Òeven if he literallyexercised no agency in bringing them about.Ó75 As he did with contractlaw, Sanhuri contrasts the individualist spirit of Roman law with thesocialisation of contemporary law, and accounts for the move towardsobjectivity in torts as caused by the latest economic developments of hisage. The Òspreading mechanisation of the means of production andtransportation in our ageÓ76 did not only imply the need for a technic-ally sophisticated law; it also signalled the need to increase the protec-tion of the weaker party and expand the scope of delictual liability.Examples here would include labour accidents, insurance, variousrespondeat superior situations, and consumer protection.77 Here San-huri makes it clear that he is following the latest developments ofmodern legal thought; the genealogy starts with famous protagonists ofthe ÒsocialÓ in French law, such as Saleilles and Gosserand, andcontinues with the ongoing work of other progressive jurists of civillaw under the latest theory of Òrisque social.Ó78

3.1.2ÊÊThe ÒsocialÓ as Sociological Jurisprudence:

The second mode in which Sanhuri incorporated the ÒsocialÓ into thecode was by adopting three major insights of sociological juris-prudence: (i) the code contains gaps; (ii) the code delegates to judgesthe application of discretionary standards in order to fill these gaps andindividualise justice; and (iii) codification is animated by case law.

i.ÊÊThe Code Contains Gaps :Contrary to the claims of lÕ� cole de lÕex� g� se, Sanhuri advances theclassic anti-formalist argument that Òlaw simply cannot be subsumedbetween the covers of a book or in a collection of articles . . . a valuableinsight we owe to the historical school of jurisprudence, with Savigny

75 Sanhuri, al-WasÂß, vol. I, 769. See generally, 762-74.76 Ibid., 766.77 Ibid., 774, fn 1.78 Ibid., 766-71.

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at its helm.Ó79 Accordingly, when Sanhuri first proposed the revision ofthe code, he advanced as an example the most anti-formalist articleknown in the world of modern codifications, namely Article 1 of theSwiss Civil Code. This controversial article states that in the absence ofa particular provision governing the dispute, the judge should decide thecase according to such law as he would have deemed proper tolegislate. For Sanhuri, the articleÕs Òmost daring quality lies in itsunabashed honesty . . . since legislating is indeed part and parcel of theactual work of any judge, Swiss or otherwise, and there is no way ofstopping the judge from such legislative activism.Ó80 Although thearticle was never adopted ad verbatim in the new civil code, it continuesto be the main inspiration for its Egyptian counterpart, which requiresthe judge to apply customary law, followed by Islamic law, in theabsence of an applicable code provision.81

ii.ÊJudicial activism and standards fill the gaps and individualise justice:The second mode in which Sanhuri codifies the insights of sociologicaljurisprudence lies in the great number of legal standards that are left tothe discretionary application of judges as an internal response to theinevitability of gaps in the code, thus implementing the insights he hadadvocated in his first doctoral dissertation. Sanhuri repeatedly claimsthat that the codeÕs legislative committee frequently had to choosebetween ÒrulesÓ and ÒstandardsÓ and consistently opted for the latterwhenever possible.82 The choice is explained thus:

[R]igid rules inevitably lead to either formal mechanical justice orblatant disregard for the letter of the law. Besides, legal experience hasshown that rigid rules eventually lose ground before the practical needsof society [while] discretionary standards . . . allow law to develop andaccommodate the never ending development of social activity.83

iii.ÊÊCodification must be animated by case law :The question of codification implies that there is some law out theresusceptible to more concrete articulation. In his major writings on the

79 Sanhuri, Redrafting the Code, 41.80 Ibid., 126.81 Preparatory Works, part I, 188.82 Sanhuri, The Draft Code, 184; al-WasÂß, vol. 1, 89-93; Preparatory Works,

part I, 24; see also Fathi Wali, ÒThe Role of the Judge in Civil Procedure,Ó a sevenpage article submitted to The Conference on Fifty Years of the Egyptian CivilCode, organised by the Egyptian Ministry of Justice, Cairo 1998.

83 Preparatory Works, part I, 24; see also to the same effect, Sanhuri, TheDraft Code, at 184.

226 AMR SHALAKANY

subject, Sanhuri argued that law in its uncodified form may be locatedin one of three major sources: (1) comparative law; (2) Egyptian caselaw; or (3) Islamic law. While the new civil code relied on all three ofthese sources, case law took precedent over the other sources.84 Byemphasising the primacy of case law, Sanhuri was thus following oneof the major insights of sociological jurisprudence in general, and of histhesis supervisor, Edouard Lambert, in particular. The latter had earliercriticised Fran� ois G� nyÕs seminal treatise on M� thodes dÕinterpr� ta-tions et sources en droit priv� for not placing much emphasis on theimportance of case law, and given that Lambert and Sanhuri were theonly two members of the final committee drafting the code, it is naturalthat the sociological insistence on the importance of case law became amajor guideline in the process of codification. But codifying case lawwas also a matter of legal nationalism, since case law represented theÒEgyptianisation of a foreign law transplanted to this land in haste.Ó85

More precisely, new codification should be guided by case law since Òitis the judiciary that applies the code to the problems of everyday life,and thus fixes its many pitfalls of draughtsmanship.Ó86 Sanhuri usedthe same argument in the Senate deliberations to counter the charge thatthe new code would disrupt the stability of private transactions; to thisend, he argued that Òthree-quarters or four-fifths of the norms in thisdraft code represent the codification of Egyptian case law and thecurrent [i.e., pre-1949] code.Ó87 This comment has often been cited torefute SanhuriÕs alternative claim about the ÒIslamicityÓ of the code.88 Itis to this claim of Islamicity and its relationship to the ÒsocialÓ that wenow turn our attention.

3.2.ÊÊThe Modernity/Tradition Code:

In the preceding section I argued that the ÒmodernityÓ whose ÒlatestdevelopmentsÓ were represented in the new Egyptian civil code wasessentially the ÒsocialÓ in its two manifestations of sociological juris-prudence and socialist doctrine. However, Sanhuri advanced a secondmajor claim about the code during its adoption, namely, that the docu-ment represented Òan outstanding victory for Islamic law.Ó During theEgyptian Senate deliberations, the question of the codeÕs ÒIslamicityÓ

84 Sanhuri, Redrafting the Code, 108-09.85 Ibid, 109.86 Ibid.87 Preparatory Works, part I, 70; see also 157-58.88 See Hill, Sanhuri, 73.

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came to a head in a special issue of Majallat al-Mu½¨mah, the journalof the Egyptian Bar Association, which contained a bitter attack on thedraft code for, among other things, not being Islamic enough. The issuewas circulated to members of the Senate committee along with anÒalternative Islamic draftÓ containing contract law articles that sup-posedly were exclusively derived from Islamic law.89 A heated debateensued.90 Sanhuri retorted that he Òwould yield pride of place to none inhis love for Islamic law,Ó91 and proceeded to refute the claims of hisdetractors, principle by principle, as articulated in the alternativeIslamic code draft.92 In the end, the code was indeed adopted withSanhuriÕs assurances that

we have not omitted one single principle of Islamic law that we couldhave included in the code without adopting it. The proof is that thealternative draft code proposed by one of our honourable judges andwhich he alleged was exclusively derived from Islamic law, turned outto be identical to the present law.93

Since its adoption, the question of the codeÕs Islamicty has been thesubject of long- standing scholarly debates; it is therefore important,before we go any further, to distinguish the project pursued here fromalternative approaches to this question. Two points need to be stressed.First, Sanhuri never argued that the Egyptian civil code was unequi-vocally based on Islamic law—understandably so, since his paramountaspiration was to modernise Islamic law through contact with com-parative law.94 Second, the examination of SanhuriÕs project inmodernising Islamic law may be approached from a variety of internaland external perspectives. Some external readings of his project con-centrate on talfÂq as the paradigmatic tool of legal modernisationadopted by the Arab nationalist elite, a tool that ultimately yielded a

89 See Preparatory Works, esp. 84-100; see also J.N.D. Anderson, ÒThe Shari®aand Civil Law (The Debt Owed by the New Civil Codes of Egypt and Syria to theShari®a),Ó The Islamic Quarterly, 1 (1954), 29-46 [hereinafter ÒShariÕa and CivilLawÓ]; Hill, Sanhuri, 65-70; Ziadeh, Lawyers, 135-47, esp. 145-46.

90 The opposition was mainly backed by Azharite ®ulam¨¾. Law professors,members of the bar, and judges were all invited to participate in the debate, andSanhuriÕs detractors included Hasan al-Hudaibi, the future head of the MuslimBrothers; see Hill, Sanhuri, 67.

91 Anderson, ÒShari®a and Civil Law,Ó 30.92 Preparatory Works, part I, 85-90.93 Ibid., vol. 1, 159.94 See Sanhuri, al-WasÂß, vol. I, 48, fn 1, where he explicitly states the limited

extent to which the code has adopted Islamic law, and affirms his belief that thetime will be ripe for the adoption of Islamic law as the exclusive source ofcodification only after there has occurred Òa strong scientific renaissance in its studyunder the auspices of comparative law.Ó

228 AMR SHALAKANY

neo-patriarchal normative order.95 Others have chronicled the debatessurrounding the adoption of the civil code in the public sphere, theinteraction between secular and religious forces in society, and themarginalisation of the ®ulam¨¾ in political decision making.96 Alterna-tively, SanhuriÕs modernisation of Islamic law has been read from avariety of internal perspectives, investigating concrete questions ofprivate law doctrine, and discussing how his functionalist selections ofIslamic law were made to coincide with modern European legislation.97

Although these different perspectives offer insightful readings of thecodeÕs ÒIslamicity,Ó they generally yield a flat interpretation of San-huriÕs legal consciousness. Specifically, they all ignore the question ofSanhuriÕs internally divided preoccupation with questions of identityand redistribution—precisely the subject of this essay. Having demon-strated in the preceding section that a particular strand of modernity,namely the Òsocial,Ó was incorporated in the code, I will now argue thatSanhuri harnessed the ÒsocialÓ in the modernisation of Islamic law—the ÒsocialÓ being understood here as both a methodological choice aswell as an ideological agenda. I realise that this argument can becomeobscure and long-winded. Thus, for purposes of clarity, I divide theargument into two steps. I will first discuss SanhuriÕs response to thequestion of Òhow is the code Islamic?Ó; and then offer my own readingof how the ÒsocialÓ was used by Sanhuri to further the modernisationof Islamic law.

1.ÊÊHow is the code Islamic?SanhuriÕs most general statement on the subject remains his lecturebefore the 1942 meeting of the Royal Geographic Society.98 In responseto the question of Òhow is the code Islamic?Ó, Sanhuri made thefollowing remark:

Before we go any further [in discussing the draft code], we must firstcall attention to the groundbreaking intervention the draft code haspursued in favour of Islamic law. Article (1) of the code requires the

95 See Abu-Odeh, Feminism, Nationalism and the Law: The Case of ArabWomen, SJD Thesis, Harvard Law School, 1993; see also Hisham Sharabi, Neo-Patriarchy: A Theory of Distorted Change in Arab Society (Oxford UniversityPress, 1988).

96 See Ziadeh, Lawyers; see also Hill, Sanhuri, 50-83.97 See Oussama Arabi, Sanhuri on Cause and SanhuriÕs Reconstruction; Emad

Khalil, The Modern Debate over Rib¨ and its Resolution in the Codes of Sanhuri,JD Thesis 1990, Harvard Law School, [hereinafter Rib¨ in SanhuriÕs Code];Anderson, ShariÕa and Civil Law.

98 Preparatory works, vol. I, 20, and al-WasÂß.

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judge to fill the gaps and lacunae that exist in the code by resorting tothe principles of Islamic law. Occasions where the judge will be facedwith such gaps in the code are bound to be numerous, and so the judgewill be required to decide various disputes in accordance with theprinciples of Islamic law. The code is a great victory for Islamic law,especially if we keep in mind that all its articles could easily be arguedto represent principles of Islamic law. And so, notwithstanding theexistence of gaps in the code, our judge only has two options: either heapplies codified articles that do not conflict with Islamic law, or heapplies the very principles of Islamic law . In addition to all that, thedraft code has also directly incorporated Islamic law by codifying bothits general theories and its detailed normative solutions.99 [emphasisadded]

SanhuriÕs argument for the Islamic identity of the new civil code isbest understood in terms of a five-prong test of ÒIslamicity.Ó These fiveprongs are: First, the civil code is Islamic to the extent that it hasincorporated various chunks of Islamic law in several forms; it hascodified both (i) general theories and (ii) detailed practical solutionsfrom the four classical schools of Sunni law, as well as Islamic lawprovisions that were contained in the old civil code. Under this prongwe find provisions that extend from general theories of Islamic law,such as its objective spirit, to detailed normative solutions in such areasas unconscionability, contract formation, performance and termina-tion.100 The codification of Islamic law comprises both (i) principles ofIslamic law that were contained in the old code, and (ii) additionalprinciples that were introduced in 1949.101 Whether the very act ofcodification adulterates the authenticity of Islamic law is a questionSanhuri never seemed to address in writing. We may infer, however,that the answer is in the negative, on the assumption that codificationitself represents the modernisation he sought for Islamic law. Secondly,the code is Islamic to the extent that it adopted the decisions of recentEgyptian case law which, according to Sanhuri, had successfullymodernised several aspects of Islamic law. Under this prong we findIslamic law provisions on gifts, wills and estates.102 Third, several

99 Sanhuri, The Draft Code, 179.100 Sanhuri, al-WasÂß, vol. I, 45-46; The Draft Code, 181; Preparatory works

131-32.101 Sanhuri, al-WasÂß, vol. I, 44-48; see also Anderson, ÒThe Shari®a and Civil

Law,Ó 31.102 It should be noted that only some rules on gifts and estates were codified.

The law on wills was not included in the civil code, as a separate personal statuslaw had been promulgated earlier. For a discussion of the codification of personalstatus law, see Ziadeh, Lawyers, 116-27

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provisions of the code which, Sanhuri argues, represent modern law Òinits latest developmentsÓ from individualism towards the Òsocial,Ó areconcurrently presented as Islamic. In contract law, this categoryincludes most of the doctrines that constrain the reach of autonomie dela volont� .103 Fourth, Islamic law fills the gaps in the code, according toArticle 1, whenever there is no code provision or customary law togovern the dispute. Fifth, the entire code is Islamic-by-default sincenone of its provisions is in direct contradiction with Islamic law.

2.ÊÊIslamic Law and the ÒSocialÓ:Sanhuri does not stop at merely claiming the Islamicity of the code. Themost interesting facet of his thought is his attempt to bridge the ÒsocialÓcomponent of the modern code with his other competing preoccupation,modernising Islamic law. I argue that Sanhuri did this either (i) bypositing that the ÒsocialÓ is synonymous with Islamic law (the ÒsocialÓas socialist doctrine), or (ii) advances the Islamicity of the code (theÒsocialÓ as sociological jurisprudence). I will briefly discuss each ofthese postulates.

3.2.1.ÊÊThe ÒsocialÓ as Islamic law:

In the preceding section I demonstrated how such doctrines as uncon-scionability, unforeseen events, and restrictions on contractual interest,act to restrain the individualist potentials of autonomie de la volont� .Sanhuri identified these three ÒsocialÓ doctrines as Islamic.104 In orderto understand the process by which such socialist doctrines of modernlaw were equated with Islamic law, it is imperative that we considerSanhuriÕs philosophy of legal history and investigate the manner inwhich it facilitates the equation of the ÒsocialÓ with various doctrines ofIslamic law. Having adopted a cyclical interpretation of legal historyunder which private law doctrines are forever oscillating betweenÒindividualistÓ and ÒsocialistÓ civilisations, Sanhuri explained the threeabove-mentioned doctrines as marking a departure from the individual-ist spirit of Roman and nineteenth-century Western laws, and heraldingthe modern embrace of a more socialist civilisation that harks ÒbackÓ tomedieval and ecclesiastical law. But Sanhuri did not confine thecyclical dyad of individualist/socialist civilisations to an exclusivereading of Western legal history; rather, he interpreted the dyad as a

103 Sanhuri, al-WasÂß, vol. I, 47.104 See Sanhuri, al-WasÂß, 356-57, 632-39.

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humanist philosophy of universal scope and extended its application toinclude the history of Islamic law as an example of a socialist civilisa-tion. Thus, progressive reforms of the ÒsocialÓ in Western law equallyentail a move backward, in the historical sense, towards the socialistspirit of medieval Islamic law. The affinity between Islamic law andthe ÒsocialÓ thus transcends the vulgar constraints of doctrinal function-alism and assumes a more inclusive civilisational narrative underwhich numerous Western doctrines can be argued to be Islamic even ifthey lack literal doctrinal analogues in Islamic law. Accordingly, de-tecting the commonality of Òaltruistic/moral tendenciesÓ105 between theEcclesiastical and Islamic doctrines of unconscionability106 and unfore-seen events,107 Sanhuri proceeded to cluster all these doctrines under thesame camp and contrast them uniformly against the legal individualismof nineteenth-century Western law. The same clustering manoeuvrewas enacted, all the more poignantly, when Sanhuri discussed the civilcodeÕs limitations on contractual interest. While these limitationsrepresented the most recent victory of the ÒsocialÓ on the individualism/socialism dyad, they nonetheless posed a serious modernity/traditionconundrum, given the Islamic rib¨ prohibition. SanhuriÕs cyclicalreading of legal history came to his aid in this matter. First, he justifiedthe Islamicity of interest articles in the code according to ÒemergencyÓjustifications, under the doctrines of ´arâra and ma×la½a.108 Then, hecautioned that the ÒemergencyÓ doctrine is justified only in a capitalisteconomy in which banking and finance cannot be regulated in strictcompliance with Islamic law. Socialism, by contrast, would do awaywith rib¨:

Under a capitalist economic system—such as the present one—wherecapital is controlled by private individuals and institutions, as opposedto the state . . . limited interest rates are permissible ( j¨¾iz) as anexception from the original prohibition (ta½rÂm) . . . but even after suchlimitations, the need for interest does not arise except under the currentcapitalist order. Should the current economic order be replaced by asocialist system—which we indeed appear to be adopting —in whichcapital is owned by the state and not by private individuals, we shouldthen re-evaluate the need (½¨jah ) for interest, which may totally vanishunder socialism and therefore allow us to restore the originalprohibition of rib¨ .109

105 Ibid., 633.106 Ibid., 356-57.107 Ibid., 632-39.108 Sanhuri, Maרdir al-¼aqq f al-Fiqh al-Isl¨mÂ, 253-77.109 Ibid., 271-72; see also 277.

232 AMR SHALAKANY

The same humanist reading of legal history applies equally to theobjective spirit of the civil code. While an objective spirit signifies theÒsocialisationÓ of delictual liability according to the latest ÒmodernÓdoctrines advocated in German law by such major theorists of theÒsocialÓ as von Gierke,110 Òthe draft [Egyptian] code followed theGermanic codes because their provisions conform with Islamic law.Ó111

The ÒsocialÓ in torts is thus equated with Islamic law: ÒThe objectivespirit of the code is a sign of its modernist nature . . . Should we theninquire about the spirit of Islamic law, we discover that it equallyexhibits an unequivocal objective spirit.Ó112 The same civilisationalargument also applies to the codeÕs preference for flexible standardsover rigid rules. Standards, which socialise modern law and individual-ise justice, are Islamic because they exhibit an objective spirit. Such isthe case regarding the codeÕs articles on unconscionability, unforeseenevents and abuse of right, where: Ò[w]e also notice that standards usedin Islamic law equally exhibit an objective spirit which follows thecustomary interpretations of the people.Ó113

To summarise, SanhuriÕs cyclical reading of private law history isillustrated in the chart below. The two civilisational poles should beread from a humanist perspective in comparative law, and understoodto have universal bearing on both Western and Islamic legal systems.The three major characteristics of modern law that Sanhuri adopted indrafting the code—a socialist tendency, objective spirit, and preferencefor standards over rules114—are all made to coincide with Islamic law.

Individualist civilisationRoman EmpireNineteenth century Europe

Socialist civilisationMedieval Christianity and IslamContemporary socialist movement

passive judge active judge

normative repercussions in contract law:

autonomie de la volont�limited scope of unconscionabilitylimited effects of unforeseen eventsexpansive interest provisions

social lawexpanded scope of unconscionabilityexpanded effects of unforeseen eventsconstrained interest provisions

110 See Sanhuri, al-WasÂß, 108. The German jurist Otto von Gierke is generallycredited with coining the term Òsocial lawÓ in modern European private law theory;see Franz Wieacker, A History of Private Law in Europe (Oxford: Clarendon Press,1995), at 434.

111 Ibid.112 Sanhuri, The Draft Code, 180.113 Ibid.114 Ibid., 184.

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normative repercussions in tort law:subjective theory of tortsintentional tortsrigid requirement of breach of careindividual error

objective theory of tortsstrict liabilityflexible requirement of damagessocial risk

3.2.1ÊÊThe ÒsocialÓ in service of Islamic law:

Sanhuri incorporated three major insights of sociological jurisprudenceinto the civil code, namely, the existence of gaps, the active role of thejudge in filling these gaps through standards, and finally the codifica-tion of case law. Sanhuri harnessed the same insights to further theIslamicisation of the civil code, allowing Islamic law a larger scope ofapplication than it otherwise would have enjoyed under the formalist� cole de lÕex� g� se conception of a complete and gapless codification.

First, Article 1 of the civil code is based on the anti-formalistpremise that legal statutes can never be completely systematised;Sanhuri instrumentalised this sociological insight by Òrequiring thejudge to fill the gaps and lacunae that exist in the code by resorting tothe principles of Islamic law.Ó115 However, the practical significance ofthis article has been the subject of heated debate since its adoption bythe Senate legislative committee. One member of the committee whoopposed the code used the French adjective ÒfantaisieÓ to dismiss itsÒIslamicisingÓ potentials;116 another opponent described the articleÕsimpact as Òmore sentimental than practicalÓ;117 while a third opponentof the article warned against its failure to specify a particular school ofIslamic jurisprudence for the judge to follow in case of lacunae, thusopening the door to future conflicts in court decisions.118 By contrast,supporters of the article defended its ÒIslamic potentialsÓ by marshall-ing two, somewhat contradictory arguments: on the one hand, thearticle directs the judge to apply custom before Islamic law, but suchcustomary law quite often represents Islamic law as enmeshed inusage, particularly in rural areas;119 on the other hand, the articleadvances the application of Islamic law more profoundly than issuggested on the face of it, since the reference to customary law is a

115 Sanhuri, The Draft Code, 179; see also al-WasÂß, 47-48, ÒIslamicJurisprudence as an Official Source of the Civil Code.Ó

116 Preparatory Works, 93.117 Anderson, The Shari®a and Civil Law, 30; see also Hill, Sanhuri, 71-83.118 See Chafik Chehata, ÒLes Survivances Musulmanes dans la codification du

droit civil egyptien,Ó Revue International de Droit Compar� , 17 (1965), 839-53.119 Preparatory Works, 92.

234 AMR SHALAKANY

Òsymbolic gestureÓ of no practical significance.120 In all cases, thearticle may be viewed as the direct predecessor of Article 2 of the 1971Egyptian constitution that requires the application of Islamic law as theprimary source of law in the land, a provision which, in its turn, hasreceived a much debated application at the hands of the EgyptianSupreme Court.121

Second, the emphasis of sociological jurisprudence on case law ledSanhuri consciously to set out and codify the rulings of numerousEgyptian court decisions; he argued that such case law would advancethe Islamicisation of the code to the extent that it represented successfulattempts by Egyptian judges to modernise particular doctrines ofIslamic law. However, this unorthodox sociological reading of Islamiclaw did not go unchallenged. While a Senate committee member arguedthat such codified case law ultimately represents ÒEuropean law, or inother words Roman law,Ó Sanhuri tersely, and somewhat irritably,retorted: ÒItÕs Egyptian case law in conformity with Islamic law.Ó122

SanhuriÕs response, however, should not be cynically dismissed as aclever rhetorical manoeuvre before a Senate debate. Since his 1935article on redrafting the code, Sanhuri had been arguing for the need tocodify Islamic law as developed by the secular Egyptian courts; hisclaim before the Senate committee thus was in harmony with hislongstanding views on the subject. Describing the situation in 1935,Sanhuri had noted:

Questions of gifts, wills, and estates are governed concurrently by theold civil law and Islamic law, and were therefore left under a mostconfusing and unstable legal regime. These matters have been leftalmost undiscussed by the legal jurists in their legal treatises. Bycontrast, the courts have had to intervene and rule upon these mattersdue to their practical, everyday contact with such questions of law. Thishas produced a most rewarding case law on the topic, a case law thathas successfully endeavoured to resolve the initial schism between theconflicting rules of Islamic law and civil law on these matters .Accordingly, when codifying these legal questions in the future, ourlegislature would benefit greatly if it consulted the case law of the pastfifty years.123 [emphasis added]

The law of estates probably represents the most significant exampleof case law that finally made it into the code. The tension between

120 Ibid.121 See Esam Anwar Selim, Haymanat Mab¨diÕ al-Shar®ah al-Isl¨mÂyah ®al¨

al-Q¨nân al-Madan (Alexandria, 1996).122 Preparatory Works, 91.123 Sanhuri, Redrafting the Code, 116.

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Islamic law and the French civil code on the topic may be summarisedas follows: Islamic law requires the settlement of all the deceasedÕsdebts from the estate itself prior to making any distribution to the heirs.By contrast, French law conveys the estate, with its outstanding debts,to the heir, who then assumes full liability even if the debts exceed thebalance of the estate. Egyptian case law (mostly that of the MixedCourts) opted for an Òintermediate approachÓ intended to moderniseIslamic law and accommodate the needs of modern society. To thisend, the courts adopted the traditional Islamic law principle whilelimiting its scope, in order to protect the interest of bona fide thirdparties.124 The principle and its exceptions were finally codified inArticles 897 and 988 of the civil code. Another significant example isthe Egyptian courtsÕ position regarding the Islamic law of wills. Ac-cording to the four major schools of Sunni jurisprudence, prospectiveheirs under the rules of intestacy may not benefit from the same estateby devise. To circumvent this prohibition, it became a customarypractice to disguise wills as nominal sale contracts. Egyptian courts,appreciating the need to reform Islamic law, generally upheld thesecamouflaged-wills, and Sanhuri argued in 1935 that a reformed codemust take such case law into account.125 However, very few personalstatus provisions were ultimately included in the code.126

Part IV.ÊÊThe Displacement of the ÒSocialÓ127

On the afternoon of March 29, 1954, a crowd of demonstratorsapproached the Majlis al-Dawlah (Conseil dÕ� tat) building in Giza,feverishly chanting ÒLong live the RevolutionÓ and ÒDown with thereactionaries.Ó A member of the police force asked Sanhuri, thenpresident of the Majlis, to address the demonstrators and appease theirconcerns. Acceding to this request, Sanhuri stepped out of his officeand was subsequently attacked by the demonstrators. Colleagues fromthe Majlis finally wrested their bleeding director from the demonstratorsand rushed him to the hospital. The next day, before the public

124 See generally, ibid, 116-18.125 Ibid., 118-19.126 See Ziadeh, Lawyers, 116-27.127 Part IV of this essay is an abridged version of chapter III of my doctoral

dissertation, The Analytics of the ÒSocialÓ in Private Law Theory: A ComparativeStudy of the US, France, and Egypt (Harvard Law School Library).

236 AMR SHALAKANY

prosecutor investigating the case, Sanhuri accused Nasser of arrangingthis ÒcontrivedÓ attack. When Nasser paid Sanhuri a hospital visit laterin the day, the bed-ridden jurist refused to receive him, openly instruct-ing his wife to show him to the door.128

SanhuriÕs humiliation on the steps of Majlis al-Dawlah is more thana telling anecdote about NasserÕs future hostlility towards Òrule of lawÓinstitutions in Egypt.129 For Sanhuri to assert the ÒIslamicityÓ of thecivil code, he first needed to mediate between his competing agendas ofmodernising Islamic law and socialising modern law; this conceptualprerequisite was fulfilled through his humanist/cylical reading of theÒsocialÓ in private law history. Following the 1952 revolution, a verit-able Òparadigm shiftÓ occurred in the Egyptian ruling eliteÕs approachto questions of identity and redistribution.130 A ÒschismÓ developedregarding the ideologically sanctioned mode of addressing these twoquestions, as the approach associated with the Nasser era came todisplace the approach associated with Sanhuri and his generation.131

128 See A½mad FawzÂ, Siyar wa-¼ik¨yat Sittat Rajul Fikr wa-Q¨nân [The lifeand times of Six Men of Law] (Baghdad 1985), 47-67; see also Sanhuri Memoirs,284, fn 1, where SanhuriÕs wife confirms in a private interview that her husbandhad indeed refused to receive Nasser and accordingly she proceeded to Òshut thedoor in his face.Ó The question of whether Nasser was behind the attack on San-huri, and whether the mass demonstrations that overtook Cairo were spontaneousor arranged by the military, is a much debated and controversial episode in thehistory of the 1952 Revolution. For the purposes of this study, these questions areof marginal importance. What concerns us here is that Sanhuri suspected NasserÕsinvolvement in the attack as an episode in the development of the schism underconsideration.

129 For a more detailed analysis, see Nathan Brown, The Rule of Law in theArab World (Cambridge University Press, 1997), esp. Chapter 3, ÒEgyptian courts,1937-1971: centralisation, authoritarianism, and socialismÓ [hereinafter Rule ofLaw].

130 I borrow the term Òparadigm shiftÓ from Thomas Kuhn. A ÒparadigmÓ isessentially a set of scientific and metaphysical beliefs forming a theoretical frame-work to validate theories. Contrary to the empiricist view that scientific change issmooth and cumulative, Kuhn maintained that progress occurs by ÒrevolutionsÓwhereby older paradigms are overthrown by incommensurate ones. His analysiswas later extended to the ideological premises of modernity in general. See Kuhn,The Structure of Scientific Revolutions (Chicago: University of Chicago Press,1962); idem, ÒSecond Thoughts on Paradigms,Ó in The Structure of ScientificTheories, ed. Frederick Suppe (Urbana: University of Illinois Press, 1974).

131 Two points need to be stressed. First, I use the names ÒNasserÓ andÒSanhuriÓ in order to describe two ÒparadigmaticÓ ideal-types, not to reduce thecourse of post-1952 Egyptian legal history into a personal feud between an armycolonel and a legal jurist. My purpose is to instrumentalise their celebrated namesin order to make the idea behind the ideal type more discernible. Second, there isnothing historically unique in the Nasser/Sanhuri Òparadigm shift;Ó indeed, withhindsight, it appears all-too-classic in the larger world history of leftist politics.The schism over activism and redistribution is reminiscent of the post-World War Ischisms in the German Social Democratic party whose ramifications imbued leftist

BETWEEN IDENTITY AND REDISTRIBUTION 237

Accordingly, I propose that we interpret SanhuriÕs altered verdict on thecodeÕs Islamicity in light of how the post-1952 Òparadigm shiftÓdeprived the ÒsocialÓ of its potentials as a conceptual tool of mediation.I will chronicle the principal elements in the Sanhuri/Nasser schism asthey developed along the dyads of individualism/socialism andmodernity/tradition.

4.1.ÊÊThe Individualism/Socialism Schism:

In its final configuration, the schism between the Nasser and Sanhurivisions of how law should be instrumentalised in questions of redistri-bution may be located on two levels regarding (i) the configuration ofthe desired ÒsocialÓ and (ii) the mode of its realisation: First, whereasNasser eventually adopted a radical-revolutionary vision of how theinterests of the collective should be balanced against those of theindividual, Sanhuri opted for a less confrontational vision based ongradual internal reforms, configured into a coherent legal theory, andintroduced under the sanctioned lens of liberal legislation. For Sanhuri,the ÒsocialÓ was to be incorporated into the core of the civil code tointernally constrain the individualist scope of autonomie de la volont� .For Nasser, this vision of the ÒsocialÓ was not sufficiently far reachingto address the problems of redistributing wealth and achieving socialjustice in any substantial way; instead, the ÒsocialÓ for Nasser wouldeventually mean completely suspending or ÒfreezingÓ the application ofnumerous civil code sections in favour of a more aggressive ÒsocialÓchampioned by special legislation. Second, while Nasser came to viewthe institutional mechanisms of liberal legislation, with the traditionallyprivileged role played by lawyers, as serious impediments to achievinghis vision of the Òsocial,Ó Sanhuri, by contrast, was invested in aÒsocialÓ whose achievement rested on due-process and deep anti-authoritarian commitments.

However, this schism should not lead us to think of Nasser andSanhuri in terms of a progressive left pitted against a conservativeright. Both men were ideologically committed to leftist projects,

politics in Western Europe up to the end of the Cold War. See Carl Schorske,German Social Democracy: The Development of the Great Schism (Cambridge:Harvard University Press, 1955). Similarly, schisms over post-colonial questions ofidentity were common in Third World anti-colonial struggles, as one ÒnativeÓ elitereplaced another; witness the heated debates between Senghor, C� saire and Fanon.See generally Patrick Williams and Laura Chrisman, Colonial Discourse and Post-Colonial Theory (New York: Columbia University Press, 1994).

238 AMR SHALAKANY

although SanhuriÕs brand of leftism is best located in the Europeansocial-democrat tradition, while NasserÕs relates more to an alternativeradical/revolutionary strand. It also should be noted that the schism, asarticulated above, was hardly predictable when the Free Officerscarried out their coup dÕ� tat on July 23, 1952. Instead, the schismdeveloped gradually and did not assume its final shape until the mid-sixties. In tracing the historical events of the schism, a major distinctionshould be made between the early days of the revolution and the post-March 1954 crisis. When the army officers carried out their coup dÕ� tat,Sanhuri was president of the newly-established Majlis al-Dawlah, and,initially, he was overwhelmingly supportive of the officerÕs movement.Indeed, on July 31, 1952, less than a week after the coup took place,the Majlis lent invaluable assistance to the legitimacy of the revolution-ary regime in the first constitutional challenge it faced. Following KingFaroukÕs abdication of the throne, a Regency Council was installed torule on behalf of the Crown Prince, Ahmad Fouad II, until he attainedthe age of majority, as stipulated by the 1923 Constitution. However,while the constitution required that a new sovereign ascending thethrone pledge an ÒOath of AllegianceÓ before the parliament, the articlewas restricted to ascension in the wake of the old sovereignÕs death asopposed to his abdication. In 1952, applying the constitutional require-ment would have meant that the dissolved parliament of the old regime,with an outstanding Wafdist majority, would be recalled to session,which may have posed numerous complications to the Free Officers.The question of whether to re-call the dissolved parliament wasaddressed in the notorious ÒRegency Case,Ó and the Conseil refused ademand for the reinstatement of the former parliament, and decided thecase in favour of the provisional legitimacy of Òrevolutionary juris-prudence.Ó The Conseil ruled that the Regency Council would pledge itsoath of allegiance before the revolutionary cabinet.132 Shortly there-after, Sanhuri was appointed to the newly-established governmentcommittee charged with drafting a new law to reform land ownershipin Egypt. SanhuriÕs entry in his diary on August 12, 1952, coinci-dentally his birthday, was overwhelmingly positive: Ò[I]t gladdens memost that today I will be attending the first committee meeting todiscuss the future limitations on land ownership in Egypt. God haswilled that I participate in this great and momentous project on this

132 See Roel Meijer, The Quest for Modernity: Secular Liberal and Left-WingPolitical Thought in Egypt, 1945-1958 (Amsterdam: Amsterdam University Press,1996), 168. [hereinafter Quest for Modernity].

BETWEEN IDENTITY AND REDISTRIBUTION 239

blessed day.Ó133 The OfficersÕ movement thus appeared to augur a newera of social justice, which must have pleased Sanhuri greatly, and alsopresented him with an opportunity to strike back at his old politicalopponents in the Wafd party.134 By the same token, NasserÕs initialattitude towards Sanhuri and the Majlis was very promising; in one ofhis first statements about the relationship between the officersÕ move-ment and the Majlis, Nasser described the two as allies in the struggleagainst the corrupt old regime and the Majlis Òtherefore never lost theaffection of the people, [something which] the revolution has alwaysappreciated.Ó135

By March 1954, however, the power struggle in revolutionary Egyptbetween General Mohammed Naguib, president of the newly-declaredRepublic of Egypt, and Colonel Nasser, the countryÕs prime minister,had reached its height. At the time, Naguib had become the rallyingfigure for political actors who demanded social reform through anelected democratic government, and the restoration of civilian rule.Nasser, who suspected that an elected government would be unable tocarry out the political and social reforms the country needed, clearlyfavoured a more ÒrevolutionaryÓ approach based on an authoritarianpath to securing Òsocial gains.Ó The power struggle came to a finalstand-off in March 1954. Counter-demonstrations overtook Cairo,including the one in which Sanhuri was attacked for allying himselfwith Naguib and supporting the democratic road to social reform.NasserÕs camp prevailed in the struggle, and the schism was resolvedin favour of the Òrevolution.Ó

On April 15, 1954, a new law came into force which denied politi-cians of the pre-1952 regime the right to hold any government posts fora transitory ÒpurificationÓ period. SanhuriÕs tenure at the Majlis wasthus terminated. Thereafter, he was denied the right to leave the countryuntil 1961 when he visited Kuwait to draft its laws. Special courts,such as the ÒPeopleÕs Tribunals,Ó effectively limited the jurisdiction ofthe Majlis, and finally, in 1955, the government relocated eighteenjudges employed at the Majlis to external judicial posts. The reasonbehind this action appears to be that the eighteen judges were close toSanhuri or sympathised with his views on strict review of admini-strative actions taken by the government. The Majlis, fearing that thegovernmentÕs next step would be its complete abolishment, adopted a

133 Sanhuri Memoirs, 381.134 Meijer, Quest for Modernity, 166.135 Abdel-Halim al-Guindy, Nujâm al-mu½¨mah f Mi×r wa-Urâba (Cairo: D¨r

al-Ma®¨rif, 1991), 233.

240 AMR SHALAKANY

much softer review of government actions. By the mid-1960s,increasing demands were made for the extension of socialist reforms toinclude the judiciary, a criticism of the classic liberal doctrine of theseparation of powers. The final blow came with the notorious Òmass-acre of the judiciaryÓ in 1969.136

4.2.ÊÊThe Modernity/Tradition Schism:

Unlike Sanhuri, Nasser did not attempt to locate the ÒsocialÓ in eitherEgyptÕs Islamic past or in contemporary Western practices. NasserÕsregime was secular in its understanding of tradition, and therefore littleinterested in legitimating its power by appealing to projects of Islamicrevivalism. Instead, the ÒsocialÓ was now located in the budding pro-mise of a ÒThird WorldÓ project, based on a forward looking, scientific,and socialist path of development, as opposed to SanhuriÕs ÒOrientÓ inwhich tradition represents an immutable repository of ancient wisdomand a glorious past with lessons that may be of use if they are modern-ised and their affinity with the Western ÒsocialÓ highlighted. Naturally,NasserÕs regime made its own appeals to Arab history, but suchappeals were meant to legitimate the present order, as opposed tomining the past for a development agenda. This schism is perhaps bestcaptured in Albert HouraniÕs acute observation that

Ò[t]he shariÕa indeed had been abandoned with astonishing speed andcompleteness . . . If [post-1952] thinkers and statesmen recognised anorm by which their acts could be judged, it was not to be found in thepast but in the future . . . this was symbolised by the change in postagestamps, which no longer showed mosques or sphinxes or kings, butworkers and peasants in heroic attitudes, shaking their hands atfate.Ó137

NasserÕs socialist-nationalist project of modernisation replaced San-huriÕs Orient-nationalism. ÒDependencyÓ became the major preoccupa-tion, and addressing it entailed a much more confrontational attitudetowards the West than envisioned in SanhuriÕs statement that Ò[s]euleune � volution lente peut assurer lÕavenir de lÕOrient.Ó138 One may saythat Bandung replaced Paris as the consciousness of modernism, andan Òimport substitutionÓ model of industrialisation and social reform

136 See Brown, Rule of Law 84-92. No judges were physically Òmassacred;Órather, the term is a metaphor for NasserÕs aggressive encroachments on theindependence of the judiciary.

137 Albert Hourani, Arabic Thought in the Liberal Age (Cambridge: CambridgeUniversity Press, 1995), 350.

138 Sanhuri, Le Califat, 550.

BETWEEN IDENTITY AND REDISTRIBUTION 241

jostled the traditional nationalist preoccupation with political independ-ence and a Western path of development. While NasserÕs alternativewas socialism, it was nonetheless officially non-Western; it was ÒArabsocialism,Ó a different approach, sensitive to the particular conditionsof Third World development. Hourani is again worth citing:

[T]he Egyptian revolution of 1952 was significant [as] it brought topower men who, although fully alive to the need for accepting thetechniques of modern industry, and living in the universe of modernpolitical discourse, yet refused to accept a privileged position of theWest . . . Welfare was no longer defined . . . in terms of individualfreedom, but rather of economic development, a rise in general livingstandards, and the provision of social services.139

Finally, it must be emphasised that the modernity/tradition schism is notmeant to pit Sanhuri against Nasser in the simple terms of pitting Islamagainst secularism. Both Sanhuri and Nasser were secularists: bothwere committed to a fundamental distinction between the religious andthe temporal, and both awarded exclusivity to the temporal in the publicsphere. The schism merely reflects the different voices in which thetemporal may speak, and hence the different conception of the socialthat the temporal may advocate. According to Sanhuri, the ÒsocialÓmay be located in a concurrent temporal reading of both the civilisa-tional dimensions of Islamic law, as well as the Òlatest moderndevelopmentsÓ in Western law; the ÒsocialÓ under Nasser was con-ceived as independent from either of these two sources.

4.3.ÊÊThe Legal Repercussions of the Schism:

The schism along the dyads of individualism/socialism and modernity/tradition produced a different concept of the ÒsocialÓ that soon replacedthe one advanced earlier by Sanhuri. Doctrines such as unconscion-ability or unforeseen events were no longer sufficient to champion theÒsocial,Ó and the relationship between the revolutionary regime and theÒlegal fieldÓ may be brutally summarised as follows. Between 1952

139 Hourani, Arabic Thought in the Liberal Age, 348-51. We can account forthis new conception in numerous historical events that distinguished the generationsof Nasser and Sanhuri. For example, on the international and regional levels, theschism reflected post World War II changes in the Western balance of power, thesuccess of national liberation movements, the rise of Arab nationalist ideology,and the Palestine conflict; on the domestic level, the schism reflected the politicalmarginalisation of both the Muslim Brotherhood and the communists, the regimeÕsÒloss of the SudanÓ (Sanhuri had advocated the union of Sudan with Egypt). SeeSanhuri, Qa´iyyat W¨d al-NÂl [The Nile Valley Question], in Articles andResearch, 201-510.

242 AMR SHALAKANY

and SanhuriÕs death in 1971, the regimeÕs conception of the relation-ship between law and development oscillated between the followingtwo positions:140 First, law was viewed as only marginally relevant toan Òimport substitutionÓ model of economic development, and as suchwas relevant only in an instrumental sense, i.e. in terms of special legis-lation championing Òsocial justiceÓ by disenfranchising the landed andcommercial bourgeoisie through expropriation, rent control, maximumland holdings, etc. Under this image, the role of the civil code insocialising the law was largely perceived as inadequate,141 and there-fore its application was either suspended in favour of special legisla-tion, or efforts were made to replace it altogether with an exclusivelysocialist code.142 The social no longer meant protecting the weakerparty in a contractual relationship by constraining the scope of autono-mie de la volont� as the expression of Western/Islamic socialism;instead, the ÒsocialÓ now implied extra-legal processes of mass redistri-bution of wealth. The role of the ÒsocialÓ as articulated in the civil codethus became largely inconsequential.

Alternatively, NasserÕs regime entertained a second and moreaggressive view of the legal field as inevitably hostile to ÒprogressiveÓdevelopment, due to the liberal spirit with which it is imbued.143 In thisview, most of the suggested Òsocialist reformsÓ of the judiciary weremeant to contain the political potentials of the judiciary and subjugate itto the executive, which finally culminated in the Òmassacre of thejudiciaryÓ of August 1969. Furthermore, the engagement of lawyers inpolitics was drastically curtailed; no longer the staple of ministries andparliament, they were Òreduced to the status of legal technicians,Ó whiledoctors, engineers and military personnel took over the public sphere.144

This was accompanied by a dramatic decline in the prestige of legaleducation, as centralised educational schemes expanded admission tolaw schools while reducing the qualifications for admission.

140 For a study of the relation between law and development in Egypt, seeDelwin Roy and William Irelan, ÒLaw and Economics in the evolution ofContemporary Egypt,Ó Middle Eastern Studies 25, (1989), 163-85.

141 See Brian Tamanaha, ÒThe Lessons of Law and Development Studies,Ó TheAmerican Journal of International Law 89, 470.

142 See Mu½ammad al-®Aßߨr, Na½w Q¨nân Madan ®Arabi f ¯aw¾ al-Ideolojiah al-®ArabÂyah al-ThawrÂyah (Towards an Arab Civil Code in light ofArab Revolutionary Ideology), Bagdad, 1978.

143 For a general discussion, see Brown, Rule of Law.144 Ziadeh, Lawyers, 159; see generally 148-59.

BETWEEN IDENTITY AND REDISTRIBUTION 243

Conclusion :

Whereas in 1942, Sanhuri advanced the draft Egyptian civil code as avictory for Islamic law, he later qualified this assessment, downplayedits Islamic identity, and finally declared in a private interview hisexistential preference for the more Islamic Iraqi civil code.145 In Part IVof this article, I argued that SanhuriÕs changing opinion of the codeÕsIslamicity is better understood in light of the displacement of theÒsocialÓ as a conceptual tool of mediation. However, several alternativeinterpretations may be offered. Perhaps Sanhuri overemphasised theIslamicity of the code in 1942 as a calculated tactic to outmanoeuvrehis political adversaries.146 Perhaps the subsequent experience of rely-ing on the Majallah in drafting the Iraqi civil code influenced SanhuriÕsview on the potentials of modernising Islamic law. Perhaps his politicalmarginalisation under Nasser triggered his rigid dogmatism in judgingthe codeÕs Islamicity. Perhaps the change reflects the archetypalconservatism in opinion that accompanies old age and overemphasisesthe experience of the religious at the expense of the temporal. In short,alternative readings are abundant.147

However, I shall resist the scholarly temptation to balance myÒmodel of mediationÓ thesis against these alternative readings. I resistbecause I do not wish to confuse what I believe is most at stake inoffering a genealogical reading of SanhuriÕs scholarship. Viewed as anauthor, Sanhuri Òis a certain functional principle by which in our cul-ture, one limits, excludes, and chooses; in short, by which one impedesthe free circulation, the free manipulation, the free composition, decom-position, and recomposition of fiction . . . The author is therefore theideological figure by which one marks the manner in which we fear theproliferation of meaning.Ó148 To my mind, the meaning whoseproliferation is most at stake here is the meaning of a successfulreconstructive project in Islamic law. I began this article by arguingagainst AndersonÕs approach in assessing the Islamicity of SanhuriÕscode and claiming that to verify its Islamicity we need to shift our

145 Ibid., 147.146 See the debates over the codeÕs Islamicity in the Senate, Preparatory Works,

84-100.147 For a detailed exposition of alternative opinions on the topic, see Hill,

Sanhuri , Chapter VIII, ÒIs the Revised Code Islamic?Ó 71-83.148 Michel Foucault, ÒWhat is the Author?Ó in The Foucault Reader, 118-19.

For the source of this strand, see Roland Barthes, ÒThe Death of the Author,Ó inThe Rustle of Language, trans. Richard Howard (Berkeley: University of CaliforniaPress), 49-55.

244 AMR SHALAKANY

attention to Sanhuri the author. As it turns out the author, Sanhuri, haddifferent opinions at different times. A genealogical examination of hisÒwill to IslamiseÓ cannot exclusively settle the question of the codeÕsIslamicity. It does, however, highlight how SanhuriÕs perspective onwhat makes a legal document Islamic was inextricably connected to aparticular agenda in redistributing wealth and power in the private lawsphere. In other words, the genealogical study of SanhuriÕs Òwill toIslamiseÓ is not meant to settle the codeÕs Islamicity—rather, it is usefulonly to the extent that it demonstrates that to reconstruct identity is toredistribute wealth and power. It is therefore more useful to ask whowins and who looses by each article in SanhuriÕs code as opposed toasking whether the code itself is Islamic or not. Thus, different opinionsabout the success of reconstructive projects in Islamic law may bebetter understood in terms of ideological disputes over the acceptablelimits of redistributive projects. As for SanhuriÕs internal divisions, onboth discursive and existential levels, they are in no way peculiar tohim.149 They exemplify a general post-colonial condition,150 as well asa particular dilemma that many Arab intellectuals on the political leftcontinue to feel for Islamic revivalism to this day.151

149 For a generational study of SanhuriÕs peers, see Jacques Berque, EgyptImperialism and Revolution (London: Faber and Faber, 1972) ÒThe Quest forIdentity,Ó 502-18.

150 See Homi Babhabha, ÒRemembering Fanon: Self, Psyche and the ColonialConditionÓ, in Colonial Discourse and Post-Colonial Theory, ed. Williams andChrisman (Columbia University Press 1994).

151 See Abdallah Laroui, The Crisis of the Arab Intellectual (University ofCalifornia Press, 1976), esp. the chapter on ÒHistoricism and Modernisation;Ó seealso Cosmopolitanism, Identity, and Authenticity in the Middle East, ed. RoelMeijer (Surrey: Curzon Press 1999).

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