[skip to content]

Centre of Islamic and Middle Eastern Law

Islam and Public Law

Introduction: On Islam and Democracy* by Chibli Mallat

History and Law

This book opens some avenues of modern scholarship to the study of public law in the Islamic classical and contemporary tradition.

Could someone addressing 'public law' avoid being drawn immediately on the terrain of politics? Since the early preparations for the conference leading to this work, there was a persistent concern to produce studies which would not be immediately overtaken by events. That was a tall order, and the recent sectarian turmoil in India serves as a reminder of the difficult burden which an adverse atmosphere creates in the face of detached scholarship. It is indeed a tribute to this high standard that, some four years after it was initially written, Chapter 8 reads as an unsullied rock of careful and eloquent assessment of one of the most delicate questions in the public law of India - conversion to and from Islam. Nor are issues of Islam and public law in India unique, and the rules on conversion in the converse mirror of a country with a Muslim majority - Malaysia -, are surveyed in Chapter 9. The questions which this book addresses are of persistent importance on worldwide level.

So in order to secure the staying power of a scientific exercise against quickpaced and disruptive events, it was necessary to allow for a serious examination of the tradition. Some methodological principles helped guide the project away from the buffeting of portentous developments. Whether for the classical age or for the contemporary Muslim world, scholarly research on public law must respect a set of axiomatic requirements. First, the perusal of the tradition cannot be construed as a mere retrospective reading. By simply projecting present-day concepts backwards, it is all too easy to force the present into the past either in an apologetically contrived or haughtily disrrdssive manner. The approach is apologetic and contrived when Bills of Rights are read into, say, the Caliphate of 'Umar, with the presupposition that the 'just' qualities of 'Umar included the complex and articulate precepts of constitutional balance one finds in modern texts.1 It is haughtily dismissive when the notion of 'human rights' is rejected a priori as a'Western' concept. In that view, 'Western' models subsumed under imperialism, colonialism and other orientalisms are allegedly foisting concepts over Muslim societies which, one is told by intolerant or simple-minded sloganeering, do not need them. A recurrent form of this approach can be heard in an increasingly unashamed mode as 'the antagonism between Islam and democracy' and their allegedly quintessential and eternal incompatibility. These cliches are too pervasive to need an illustration, and can be found across the planet, in 'Islamic' as well as 'Western' circles. They generally reflect excuses for various forms of authoritarianism.

A corollary to the methodological flaw in the historical exercise can be found in Lucien Febvre's warning. The French historian, who founded the celebrated Annales school, cautioned against the worst mistake that the professional historian could commit: 'anachronism'.2 Febvre's 'motier d'historien' can simply not tolerate the defacing of history by reading into the past categories of thought and practice which belong to more recent times.

But is history not inevitably retrospective, or in the words of the Italian philosopher Benedetto Croce, is history not always a contemporary exercise ?3

The present work must be assessed in the confluence, through law, between the contemporaneous vision of Croce and the scientific caution of Lucien Febvre. Through law, an effort to integrate the two visions is undertaken. In classical studies, texts are being asked for what they say, on bay'a and shura, on ifta' and 'appellate jurisdiction' in the theory and practice of Islamic law. In the contemporary section, decisions of the highest courts in the Egyptian and Malaysian systems speak on practical problems and their legal solutions, while custom and the reinterpretations of Islamic law are questioned from within the tradition. Legal research, throughout, respects Febvre's warnings. Yet the Crocean inevitability of contemporaneity is patent. When the theory of the Egyptian Supreme Court is developed, the profound tradition of Egyptian law, including the shari'a's, is made use of to enlighten and direct the decisions of the Court. To the extent that law, by definition, relies on precedent, the legal field is the area par excellence in which the Crocean and Febvrian visions of history may fuse. Unlike the professional historian, who seeks constantly to avoid retrospective reading, the lawyer thrives, for his immediate pressing practice, on the enlightenment of the tradition. The law lives on precedent.

Even in its classical endeavours, therefore, this book is highly contemporary. Through a network of key concepts, the tradition is questioned in a way which may and will be used to respond to immediate needs. But the depth and accuracy of the answer, through the rigour of analysis and research, is conditioned by the scientific mediation which Lucien Febvre would have appreciated.

For details, each chapter will respond for itself.

In the following pages, some preliminary reflections triggered by the present work will be offered on perspectives which scholarship casts on public law and Islam, and the haunting corollary of the 'question' of Islam and democracy.

I will use for this exercise two texts on the rule of law, which are separated by a thousand years, with a perspective on the debate about the compatibility of Islam and democracy through the prism of the rule of law.

Classical Texts and the Rule of Law

Shamseddin al-Sarakhsi (d. 1090 A.D.) is one of the greatest jurists of the classical age, and his 30-volume Mabsut ranks among the master legal books of mankind. Whilst some works of great value have examined Sarakhsi's compendium in some detail, a full investigation of the logic of Sarakhsi is yet to be undertaken, and only a comprehensive reading of his works will discover all the riches that his oeuvre carries: as Roy Mottahedeh has once noted, fiqh books yield surprising results in the most unexpected places.

This can be witnessed, for the purpose of our work, in the following remarks by Sarakhsi, which appear in the course of his discussing the legal regime of waters and the role of state and ruler in the protection of the rule of law. The question put to Sarakhsi is 'about the validity of the granting by the Emir of Khurasan to an individual of a right of irrigation from the waters of a great river, when that right was not [so established] before, or if the individual had irrigation for two kuwwas [a measure of flow] and the Emir increased this measure and granted him that right over a land which may or may not be on the land of a third party'.

Sarakhsi's answer involves principles of larger impact than the strict watersharing issue at band:

If this decision of the Emir harms the public, it is prohibited, and it is permissible if it doesn't, that is if [the operation] did not take place on the land of a third party, for the ruler (sultan) has a right of supervision (wilayat nazar) without harming the public. So in case there is no such harm, the grant is valid for the grantee, but if harm occurs, the grant would be harmful to the public and the sultan is not allowed to carry it out.

Sarakhsi further explained that

in the case of harm to the public, each individual can ask for the order's rescission, for the ruler (imam) would be impairing the individual's right (mubtilan haqqah). The ruler has only authority to collect his rights of the public (wilayat istifa' haqq al-'amma) and not the authority to impair them, and that only in a way which does not harm the public.

In the particular case at hand, 'the grant should not have taken place . . . and it is not permissible for the Emir of Khurasan to empty (asfa) a man's right of irrigation over his land to the benefit of another, and the right must be given back to the original beneficiary and to his heirs'.

The most remarkable passage for our concern follows from the definition which the Hanafi jurist gave to isfa' (literally the 'drying' or 'emptying' of a right):

What is meant by the word isfa' is usurpation (ghasb, wrongful seizure) but he [Sarakhsi] kept his tongue and did not use the word ghasb for the actions of rulers because of its rough connotations, and he chose instead the word isfa' as a sign of caution before the ruler. Abu Hanifa, God have mercy on his memory, used to advise his friends in this manner, for man should be attentive to his own interest, keep his tongue and respect the ruler even if in such an action the ruler is equal to others before the law (al-sultan ka-ghayrihi shar'an). Didn't the Prophet say: the hand is responsible for what it took until it gives it back? The granting of ownership to other than the right owner is void, and the good which is wrongfully appropriated must be returned to his owner if alive and to his heirs after his death, and so for the sultan's appropriation of what belongs to the people.4

This passage epitomises for me the complex attitude to the rule of law which the Islamic tradition conveys. A few key elements can be established. There is a rule of law which is independent from the authority of the ruler, and 'the people' are entitled to protection against the ruler's impingement on their rights. In between the ruler and the people stands the interpreter, and perhaps the most touching element in the text is the acknowledgment that the interpreter is caught in a web which does not allow him to speak his mind in a straightforward and unadulterated manner. Caution and safety are urged, and a duty of reserve ensues.

Sarakhsi's answer is particularly useful for the development of the method of reading classical texts from a contemporary perspective, and in the repeated efforts on the way to 'modernism' in the Islamic world. Ever since Emir Shakib Arslan wrote his pamphlet on 'why did the Muslims remain behind and the others make progress ?'5 which itself offered poor practical answers beyond the call for a renewed attachment to the faith, reformism, tradition, fundamentalism, democracy, and other holistic and basic questions have been recurring in the debate. Starting from this passage of Sarakhsi and my modest practice of modern and classical texts, I would like to attempt a few answers.

The questioning of classical texts must remain cautious. If the contemporary reader of classical works is looking for the word democracy, or the expression human rights, he can only be disappointed by what he finds in law books. In Febvre's words, this investigation would be purely anachronistic. It would hardly be different when recent scholarship suggests that the concept of separation of powers, for which fatherhood is universally admitted to have been the honour of the Baron de Montesquieu, was constructed in 1'Esprit des Lois in 'undemocratic' ways and means.6 Similarly, a formal depiction of the separation of powers will not appear in the unitary classical status combining ruler and ruled, but this does not mean that the concept doesn't have an intellectual pedigree also in previous Islamic societies. Manifestations of an effective line drawn between several spheres inside and outside government are manifold in the history and law books, but Sarakhsi shows how constraints operate on a writer, who must 'keep his tongue' (hafiza lisanah) whilst acknowledging, in petto, the ruler's breach of law.

In the history of Muslim societies, the list is long of those who spoke their mind, and paid a heavy price for it. Like for Portia in the Merchant of Venice, it proved for Sarakhsi 'easier [to] teach what were good to be done, than be one of the twenty to follow [his] own teaching'.7 He is reported to have written the Mabsut whilst in prison for 'a word of advice' to the local ruler.8 But there is no doubt that a consciousness of an infringement on the rule of law, here connected with administrative expropriation of an individual right, was clear to Sarakhsi the jurist.

It must be noted that in this, and other classical fiqh treaties, the operation of the rule of law is negative. That is, Sarakhsi and many other jurists perceive clearly the infringement of the (Islamic) law of the land by a given ruler.9 What their horizon does not reach is the positive element which is recognised in the twentieth century as democracy, the threshold of which cannot be found in tenth - or sixteenth - century law treatises. An overstretching of Qur'anic verses or legal commentaries only leads to Febvre's 'unforgivable anachronism'.

By threshold of democracy is meant the formal combination of two elements over a certain period of time in the institutional life of a country uncensored public fora and free recurring elections. What Sarakhsi offers is only the inarticulate - even if extremely conscious - allusion to the first element, which covers freedom of speech and association.

From the second chapter in this volume, it will be clear that the transformation of the concept of shura to mean present electoral processes cannot be intellectually warranted in the legal and historical tradition.

The hallowed concept of bay'a, which can be termed to be the logical positive consequence of the consultative process, is even more anachronistic as a democratic concept. Ibn Khaldun (d. 1406) exemplifies the liniits of the concept when he defines it as 'commitment to obedience' (al-'ahd 'alal.ta'a).10 He further explains that duress in the process was usual, and that in his days, bay'a had become equated with 'the kissing of the [ruler's] soil, or the hand, or the foot, or the tailcoat'. Democracy is hard to derive from the Khaldunian characterisation of bay'a.

The account of the celebrated historian al-Tabari (d.923) depicting the bay'a process of the first 'righteous caliphs' is no less constraining on the search for democratic precedents. The commitment to the would-be caliphs reeks of duress in several places: in the bay'a of the fourth caliph, 'Ali ibn Abi Taleb, Tabari reports that Talha and al-Zubayr said that 'they offered the bay'a to 'Ali out of fear for themselves.'11 The bay'a of the first caliph, following the death of the Prophet, is in Tabari's History equally indicative of a method in which competition between opposed candidacies was rejected in principle. Immediately after Muhammad's death was known, the Ansar group (from the city of Madina) met to entrust leadership to Sa'd ibn 'lbada. Then resistance came from the Meccans, which the Ansar anticipated in Tabari's telling account as follows:

[After Sa'd 's acceptance], the Ansar discussed the matter and the possibility that the Quraysh muhajirun [ie those from the Prophet's tribe in Mecca who left with him for the hijra to Madina] would contend that they are the muhajirun and the first companions of the Prophet, his tribe and friends, and that there would be no ground for the Ansfir to dispute their choice of leadership. If such were the contention, a group of the Ansar put forward the proposal that they would answer: from us an Emir, and from you an Emir. We will not settle for less (Minna amir wa minkum amir wa lan narda bi-dun hadha).12

'Sa'd', continues Tabari, 'upon hearing that, said: this is the beginning of [the Ansar's] weakness'. The matter was indeed quickly sealed: the Meccan Qurayshites ruled that they held the power to decide, and Abu Bakr (eventually the first caliph) proceeded with the rejection of the Ansar's compromise by establishing the preeminence of his own group in the Muslim polity:

As for you, Ansar, no one disputes your great religious value and precedence in Islam. God has accepted you as supporters [lit. ansar of his religion and Prophet, and has brought his exile to you [Madina]. Amongst you he has chosen most of his wives and friends. After the first muhajirin [ie those from Mecca's Quraysh], there is no one who holds your rank in our opinion. We are the princes and you are the ministers. Your consultation is indispensable, and we do not decide upon things without you (fa-nahnu al-umara' wa antum al-wuzara', wa la tuftatun bi-mashura wa la naqdi dunakum al-umur).13

On the Ansar suggestion of an error from each group, 'Umar was strict: 'two shall not fit in one sheath' (fa-qala 'Umar, hayhat la yajtami' ithnan fi qarn),14 and the matter was settled, with 'people flocking to pronounce the bay'a to Abu Bakr.'15 It is difficult to rest any democratic precedent in this account. The proposal of the Ansar could indeed be construed to suggest a competition between two candidates, and a choice which is akin to election could be read into the text. But their proposal was actually a dual leaderhip (not a competition between two candidates), and it was easy for 'Umar (eventually the second caliph) to defeat the impractical course. But even if the Ansar's proposal were meant as the putting forward of two candidates, it was given short shrift by the Meccans, for whom Quraysh was the exclusive source of leadership, and the deciding group. Inequality was blunt: Quraysh provides the princes and others may be consulted and obey as ministers.

Thus, shura and bay'a do not seem to reach, in the classical texts, the threshold of democratic theory. A formal electoral process cannot be objectively read into the tradition, which did not interpret the open-ended Qur'anic verses in that direction.

Yet Sarakhsi and the Islamic legal tradition may have something more to offer than simple formal concepts, and in a less formal definition of contemporary democracy, any analyst of the Middle Eastern and/or Islamic societies will encounter civil society, the alleged historical absence of which renders the establishment of formal democracy difficult if not impossible.16

One may quote Sarakhsi again to probe two directions which the concept of civil society poses, in contradistinction to the State that civil society entails. Tle first concept is directly connected with the clear legal identification of an area of social life which defies the State: custom.

In that treatise on water from which the quote was excerpted, or in the commercial treatise related to partnerships which have been documented, there is a mine of lessons for the contemporary lawyer.17 One is struck when reading al-Mabsut by the close connection of the author with reality. The contracts outlined, as well as the regime of various associations and partnerships, including water, appear to be steeped in the social reality of the day. So when the historian uses law books to enrich his trade as historian, he is also pointing out the reverse process which the present book will illustrate, that is the possibility for the lawyer and the judge to draw from the historical law books elements which will enrich their present practice. Even more specifically, classical lawyers have tended to frame their legal understanding with the precious help of 'ur f. Hark Sarakhsi, who contradicts the eponym of his own school by considering a customary rule among the inhabitants of Meru to be more correct (wal-asahh 'indi) than a ruling by Abfl Hanifa.18 The separation between the ownership of land and the ownership of irrigation rights is also validated on the basis 'that it is a custom known in Nasaf.'19

This is not unique. If Sarakhsi was indeed remarkably attentive to the custom of the land, he was not untypical, as demonstrated in Chapter 7 on 'urf, and in its author's own extended work on the confluence of the topology of the Islamic city with customary rules as documented in legal treatises.20 So custom and Islamic law converge in a way which requires a fresher look of 'the sources' of the shari'a, the understanding of which this book will hopefully renew.

Secondly, and as a corollary to the issue of 'civil society v. state', the weight of Sarakhsi's work and the whole legal tradition palpably show that the state itself is not necessarily monolithic in its interaction with society. In the tradition, the rule of law is not constituted by the pure emanation of state executive prerogative. Whether on the level of the 'ulama, best exemplified in Sarakhsi, as a corps of legal specialists who form an effective part of the ,civil society' sphere, or with the 'official'judiciary typified by muftis and qadis, there is a strong argument against the received notion of a monolithic and arbitrary system. Sarakhsi's silent and cautious interpreter belongs to the first sphere. Muftis and qadis belong to she second, as they don the official garb of state authority to an extent which is better defined, and which is clearly indicative of a practical sphere of separation of powers.

The famous study of Emile Tyan had identified the main characteristics of the Islamic judiciary in the classical age.21 Firstly, the power of the judge emanated from the sovereign's delegation. Secondly, there was no appeal system. Thirdly, the principle was a single judge court. And finally, the concept of precedent was not known. On the three latter characteristics, the reader will find in this book new insights and a scholarship which puts in question that received notion of the Islamic judicial system. Whether on judicial review (Chapter 4), on the consultation between muftis and between muftis and qadis (Chapter 5), or on the peculiar administrative jurisdiction of the Mazalim (Chapters 4 and 10), notions eloquently put in Tyan's works require revision. So does the idea of immutability of Islarrdc law, as the example of land rent in Chapter 3 denotes.

The lessons of the classical age, to sum up, are essentially of a negative nature: the rule of law is established as a principle, so is the concept of the right of man, but they do not operate in any minimal combination required by the concept of formal democracy. At the same time, there is a dimension of civil society with its own autonomous regulation which can be found, in first approximation, in the importance of custom and its legal recognition, and in an identifiable sphere of separation of powers with the ruler on the one hand and 'ulama, muftis and qadis, on the other.

Contemporary Islam and the Rule of Law

The Constitution is the highest fundamental law which establishes the principles and rules on which the system of government is based; the Constitution defines public authorities, delineates its duties, puts limits and constraints over their activities, and organizes the basic guarantees to protect them.22

This text does not come from a decision of the US Supreme Court or the German Bundesverfassungsgericht. That it appears in a judgment of the Supreme Constitutional Court of Egypt, on the occasion of its invalidating an electoral law because of its lack of conformity with the Constitution, is testimony to the novel directions taken by the judiciary in contemporary Muslim countries.23 But the Court's reverence for the rule of law seems to descend in direct line from Sarakhsi's wishes (if not rulings). Other passages of that decision deserve to be quoted:

The Constitution consequently enjoys a special quality (tabi'a khassa) which bestows upon it superiority and sovereignty (siyada wa sumuww) as the guarantor and anchor of freedoms and the pillar of constitutional life and the basis of the system; its rules must therefore operate at the top of the legal construct of the state, and take preeminence, within the rules of public law, because these [constitutional] rules are the highest commanding (amira) principles which the state must respect in its legislation and its judgments as well as in executive practice, without separating in this regard between the three public powers - the executive, the legislature and the judiciary -: all three [powers] are founding powers established by the Constitution, and derive its existence and being from the Constitution, which is the reference (marja') in the defining of its duties. All three powers are therefore equal before the Constitution, each with the same standing as the other, and exercising its constitutional duty in collaboration within the limits prescribed, [in a way which] respectful of the rules of the Constitution which has, exclusively, the last word and to the rules of which all public authority bows.

The evident influence of the US Supreme Court decision of 180324 dovetails with the Sarakhsian respect for the rule of law. The difference, of course, is important, in that the 'tongue keeping' which Sarakhsi recommended does not seem necessary to the Egyptian judges, who feel more comfortable than he was in applying the rule of law. The Court goes on explaining its remit:

In that, the state respects an axiom of democratic rule, which is the respect owed to the principle of the rule of law, a principle which the Constitution was careful to reaffirm in Art. 64, 'the rule of law is the basis of government in the state', and in Art. 65, which stipulates that 'the state must bow to the law...'; there is no doubt that law means here the law in its most general and objective acceptation, which includes any abstract public principle regardless of its origin, and primarily and most centrally the Constitution itself as the highest and most distinguished law. Since the respect by the state in all its powers for the rule of law is an established principle and a binding rule for any respectable democratic system, it is the duty for all public authority, whatever its work and regardless of its competence and the nature of the duties it is entrusted with, to abide by the rules and principles of the Constitution; if [public authority] contradicts these rules or trespasses on them, its work is vitiated by a constitutional infringement. This violation is subject -when the infringement derives from a law or a bill (la'iha) - to judicial review which is entrusted by the Constitution to the SCC as the highest judicial body which is exclusively vested with judging the constitutionality of laws and bills with a view to conserve, protect, and defend the Constitution from these measures operating outside it'.25

It should therefore not come as a surprise to see the contemporary dimension of the present volume dwell heavily on the Egyptian case. As the intellectual heart of the Sunni world of legal learning, Egyptian debates have dominated the twentieth century, including in the relationship between Islam and public law. The famous 1980 Amendment to the Egyptian Constitution, which established Islamic law as 'the [as opposed to a] principal source of legislation' has enriched the scene with a lively debate between various protagonists, in a way developed in this volume's last chapter. As one of the main protagonists, the Supreme Constitutional Court of Egypt has played a crucial role as ultimate exponent of the shari'a. A case decided on May 4, 1991 illustrates this phenomenon.

The case arose in conjunction with the determination of agricultural land by the government, which proceeded to fine a contravener to the interdiction of building without a permit on such land.

A decision of the criminal court to jail and fine the plaintiff was referred to the SCC for alleged unconstitutionality of the law on which the decision rested. Agriculture legislation passed in 1966 and amended in 1983 prohibited the building without permit on "land within a village 'urban' domain" and on 'land adjoining such villages...'. The plaintiff argued that such prohibition contradicted the principle of private property under Art.34 of the Constitution, as well as Islamic law, which was incorporated in Art.2 of the Egyptian Constitution as amended in 1980. The SCC rejected both arguments:

Private property, which is protected by Art. 34 of the Constitution is not an absolute right. The Constitution established it because of a social function which the law organizes, and Art. 32 of the Constitution has delintited the elements of this function by demanding that private property operate . . with a view to the benefits accruing the national economy . . . The social function of property requires takinei into consideration public welfare... (maslaha 'amma).

Similarly, the prohibition did not contradict the principle of the shari'a, the court held, 'because, [under the shari'a] the ruler (wali al-amr) may intervene to regulate property...' Without going into a comparison between the divergent views on Islamic law with relation to property, it is noteworthy that Islamic law was being brought into the constitutional field by several national systems at the beginning of the 1980s. Whether in Pakistan, as in the recent decision on riba by the Federal Shariat Court, in Iran under the Council of Guardians and the Council for the Discernment of the Higher Interest, the shari'a has become an important constitutional consideration in the assessment and development of the rule of law.

Process is here the key issue.

Whether in twentieth century courts or Sarakhsi's eleventh century Summa, one can detect a sense of purpose which the rigour of law tries to fulfill. That the meddling of politics and the limits imposed by various protagonists - whether social or governmental - constrain the efforts towards the establishment of the rule of law, cannot be doubted. But the pulls between impatience with the democratic process and the acceptance of legal arbitration are clearly perceptible. The question whether the protagonists will accept the playing out of the rule of law without violence remains to be answered in the contemporary Muslim world.

In the debate on the compatibility of Islam and democracy, classical and contemporary texts on the rule of law establish that the alleged incompatibility cannot be seriously defended. This is not to say that some groups - in the East and in the West - will not produce their own essentialist interpretation of Islam to advocate incompatibility. Ideological misuses will prove difficult to circumscribe, and politics, as demonstrated in the emergence of the Mixed Courts of Egypt (Chapter 6) or in the problems faced by the Majlis al-Dawla (Chapter 10) will continue having a direct impact on legal developments.

So will Islamic law, which was and will remain a crucial dimension of the debate for years to come. The cases decided by the SCC of Egypt, and the considered reflection on contitutional issues by Egyptian judges in a central Muslim country, illustrate the importance of process, and the repeated opening of legal avenues by scholars and judges alike. If the scholars' contributions in this work enrich the present debate on Islam and public law, this little book will have served some purpose.


Footnotes

* This contribution was presented in a preliminary form at a seminar organised by the Foreign and Commonwealth Office on September 24, 1992.

  1. A good critique of Islamic Human Rights Instruments can be found in Ann E. Mayer, Islam and Human Rights, Boulder and London, 1991
  2. Pour l'historien, ... le problem est d'arreter avec exactitude la serie des precautions a prendre, des prescriptions a observer pour eviter le peche des peches - le peche entre tous, irremissible: l'anachronisme.' L. Febvre, Le Probleme de l'Incroyance au Seizieme Siecle, Paris, new edn, 1947, p.6.
  3. 'Ogni vera storia e storia contemporanea.' B. Croce, Filosofia, Poesia, Storia, Milan, 1952, p. 444.
  4. All quotes from Sarakhsi, Al-Mabsut, Cairo, 1906-1912, p. 183.
  5. Shakib Arslan, Limadha Ta'akhkhara al-Muslimun wa Limadha Taqaddama Ghayruhum?, Cairo, 1930.
  6. See for details my article on 'Comparativism in the eighteenth century: Lord Mansfield and the French Tradition', forthcoming.
  7. Shakespeare, The Merchant of Venice, the Arden ed., London, 1912, I, iii, 11.16-19.
  8. Khalil al-Mis ed., Faharis al-Mabsut, Beirut, 1980, p.7.
  9. See Ann Lambton, State and Government in Medieval Islam, Oxford, 1981, pp306-315.
  10. Ibn Khaldun, al-Muqaddima, Beirut, al-Qalam, 1978, p 209.
  11. Tabari, Tarikh al-Umam wal Muluk, Cairo, 1939, Vol 3, p. 452.
  12. Ibid, p. 456.
  13. Ibid, p.457.
  14. Ibid.
  15. Ibid., p.459.
  16. Since the 1980s, the debate over civil society has dominated the scene in the Arab World. A journal, edited by Professor Sa'deddin Ibrahim in Cairo, appears now in Arabic and in English with this title.
  17. The classic works are A.Udovitch, Partnership and Profit in Medieval Islam, Princeton, 1970, and S.Goitein, A Mediterranean Society, Vol. 1, Economic Foundations, Berkely, 1967. On custom and commercial law, see more recently Udovitch, 'Les echanges de marche dans l'slam medieval: theorie du droit et savoir local', Studia Islamica, LXV, 1987, pp.5-30 and my use of the text in 'Islamic law', Proceedings of a Conference on Islam and Business, London, 24th November 1992, pp.C-1 to C-4.
  18. Sarakhsi, Al-Mabsut, Vol. 23, p.182.
  19. Ibid., p.171.
  20. See references in Chapter 7,infra.
  21. E. Tyan, Histoire de l'Organisation Judicaire en Pays d'Islam, Vol. 1, Paris, 1938.
  22. Eyptian Supreme Court, unpublished, supplied by Awad al-Morr.
  23. See my 'Constitutional Law in the Middle East', SOAS law dept working paper, February 1993.
  24. Marbury v. Madison, 1 Cranch 137 (1803).
  25. All quotes from SCC, decisionof 19 May 1990, pp.11-13