Introduction to Middle Eastern Law

by Chibli Mallat

Overview

This book provides an introduction to the laws of the Middle East, defining the contours of a field of study that deserves to be called 'Middle Eastern law'. It introduces Middle Eastern law as a reflection of legal styles, many of which are shared by Islamic law and the laws of Christian and Jewish Near Eastern communities. It offers a detailed survey of the foundations of Middle Eastern Law, using court archives and an array of legal sources from the earliest records of Hammurabi to the massive compendia of law in the Islamic classical age through to the latest decisions of Middle Eastern high courts. It focuses on the way legislators and courts conceive of law and apply it in the Middle East. It builds on the author's extensive legal practice, with the aim of introducing the Middle Eastern law's main sources and concepts in a manner accessible to non-specialist legal scholars and practitioners alike. The book begins with an exploration of the depth and variety of Middle Eastern law, introducing the concepts of shari'a, fiqh, and qanun, (which all mean 'law'), and dwelling on Islamic law as the 'common law' of the Middle East. It provides a historical introduction to the contemporary Middle East, exploring political systems, constitutional law, judicial review, the laws of tort and obligations, commercial law (including Islamic banking, company law, capital markets, and commercial arbitration); and examines legislative reform in family law and the position of women in the legal system. The author considers the interaction between Islamic and Western laws and includes a bibliography designed for further research into the jurisdictions and themes explored throughout the book.

Product Details

ISBN-13:	9780191021725
Publisher:	OUP Oxford
Publication date:	07/12/2007
Sold by:	Barnes & Noble
Format:	eBook
File size:	1 MB

About the Author

Chibli Mallat is the EU Jean Monnet Professor of Law at the Universit? Saint-Joseph, Beirut, and a Visiting Professor at Princeton University. In addition to his work in European law, he is a leading scholar of Islamic and Middle Eastern law, a legal practitioner, and a Former Director of the Centre of Islamic and Middle Eastern law at the School of Oriental and African Studies of the University of London.

Table of Contents

Table of Cases, Legislation, Verses, and Hadith xxv

1 Introduction: The Autonomy of Middle Eastern Law 1

On the Nature of Middle Eastern Law 4

I History

2 The Formation of Middle Eastern Law 15

Middle Eastern Legal Calques 16

Islamic Law 32

Qur'an and hadith 33

Fiqh 40

Courts, judges, case-law 61

Qadi literature 86

Fatwas and muftis 90

Formularies, deeds, and contracts 9

Custom 104

'Sources' revisited 108

Ijtihad and schools 110

Coda: Periodization and Mille Plateaux 122

II Public law

3 The Contemporary Middle East: A Historical Primer 129

4 Constitutional Law: The Specificity of Middle Eastern Constitutionalism 141

The Failure of Transnational Institutions 144

Islamic Law, Constitutionalism, Democracy 154

A Deeper Constitutional Structure? Personal versus Territorial Law 171

Conclusion: Persisting Puzzles 179

5 Constitutional Review: The Spread of Constitutional Councils and Courts 181

Antecedents and Fringe Experiments 182

The Spread of Constitutional Review: The Two Models 185

Conseils constitutionals: the Algerian interlude 186

Conseils constitutionnels: the Lebanese failure 188

US-style review: the Yemen Supreme Court and the UAE 191

US-style review: the difficult assertion of the Egyptian Supreme Court 196

The Future of Constitutional Review 207

6 Judicial Review: Criminal and Administrative Law 211

Rule of Law, Rule by Law: Jews and Non-Jews in Israel/Palestine 217

Arbitrary Arrest and Torture in Kuwait 222

Administrative Law: Right to Passport in Morocco 226

Apostasy in Unified Yemen 227

Judicial Review in a War-Torn Country: Courts in the Kurdish 'Safe Haven' of Northern Iraq 230

Epilogue: The Sisyphus Rock of Judicial Review 234

III Private Law

7 Introduction: From the Age of Codification to the Age of Case-Law 239

8 Civil Law: Style and Substance 244

The Majalla: Structure 249

The Spread of the Majalla 253

Majalla Calques: Iran, Iraq, Saudi Arabia 256

The 'Sanhuri Codes' 261

Contracts 268

Contracts-formation 269

Contracts-effects 276

Contracts-termination 282

Torts 288

Case-law 294

Conclusion: On Style and Substance 295

9 Commercial Law: Globalization and Tradition 300

Judgments 300

The Classical Tradition 308

A Contemporary Echo: The Economics of the Law Merchant 314

The Break: The Ottoman Commercial Code (1850) 317

Commercial Agency 321

Company Law 328

Limited liability 329

Capital markets 332

Islamic banking 338

Arbitration 345

Legislation 348

Case-law 350

Conclusion: On the Universality of the Law Merchant 353

10 Family Law: The Search for Equality 355

The Classical Paradigm 356

The Legislative Search for Equality 366

The 1986 Arab Family Law Project: restatement of the eclectic period 367

'Feminist' criticism of reforms 373

The Egalitarian Paradigm in Post-Independence Reforms 377

Yemen's 1992 Family Laws: Egalitarian Eclecticism in a Comprehensive Code 382

Courts and the Egalitarian Test 389

Conclusion: the Moroccan Reform and Beyond 398

IV Conclusion

11 Epilogue: justice and Lawyering in the Middle East 405

Bibliography 419

Index 443