Abd El-Razzak El-Sanhuri

Cairo and Baghdad in the 1930s

After spending eight years as a teacher of civil law at the Faculty of Law in Cairo, el-Sanhuri moved to Baghdad in 1935, where he became dean of the Baghdad School of Law. In February 1936, Rashid Ali al-Gaylani, then the Minister of Interior, put together a committee of jurists for the drafting of an Iraqi Civil Code, which he tasked el-Sanhuri with presiding over. Interruptions brought about by the 1936 Iraqi coup d'état and strong opposition from Islamists brought the project to a halt. In 1937, el-Sanhuri returned to Cairo. Around this time, he interacted with secessionists of the Wafd Party and joined the Saadist Institutional Party.

The Egyptian Civil Code

In late 1938, after two drafting committees were abandoned, the Egyptian Minister of Justice Aḥmad al-Khashaba determined that drafting of a civil code would be "best accomplished by two individuals", and proceeded to select el-Sanhuri and his old mentor, Lambert, for the task. The first draft of the Egyptian Civil Code was completed in 1942. Various administrative hold-ups and legislative procedures resulted in the Code being promulgated on 15 October 1949.

The Iraqi and Syrian civil codes

In 1943, el-Sanhuri left Egypt to help draft the civil code of Iraq anew. This time, the attempt at drafting a code was more favourable; an Iraqi Civil Code which combined the Majalla and the Egyptian Civil Code as its sources was promulgated in 1951 (but only came into force in 1953). El-Sanhuri also visited Syria, at which time he contributed to the drafting of a civil code. His contribution, however, was cut short by his return to Cairo in 1948. Moreover, the articles which he drafted were eventually dropped in favour of the draft which, at the instructions of Husni al-Za'im, more or less mirrored the Egyptian Civil Code.

President of the Council of State

In March 1949, el-Sanhuri accepted the position of presidency at the Egyptian Council of State. His tenure coincided with the Egyptian revolution of 1952. Power struggles between Mohamed Naguib and Gamal Abdel Nasser eventually brought the Council of State to the attention of the military. During March 1954, when the Egyptian Bar Association made demands for a return to civil government, el-Sanhuri, whose opposition to military rule had by that time become clear, was forcibly dismissed. Widespread demonstrations ensued. The Revolutionary Command Council insisted that the transition system of governance would stay in place. According to Farhat Ziadeh, a mob instigated by "some army elements" assaulted el-Sanhuri. One explanation put the assault to a publication by Al-Akhbār newspaper claiming that the Council of State "was about to issue decrees against the Revolution . . . (and) it had been rumoured that Dr el-Sanhuri was to become Prime Minister for the four months until the election of a constituent assembly". When Nasser called at the hospital in which el-Sanhuri was receiving treatment for the injuries he sustained from the assault, el-Sanhuri refused to see him. It is often claimed that el-Sanhuri was unable to leave Egypt following this incident. It is unclear whether el-Sanhuri was placed under any house arrest. He is known to have briefly resided in Kuwait during 1959–60 to assist Kuwaiti legislators and politicians in different legislative projects. It has also been suggested that he visited Libya once again around that time (having briefly visited it for the first time in 1953) to assist in drafting and legislative exercises.

Later life

Most of el-Sanhuri's later life was dedicated to the writing and publication of further volumes of Al-Wasīṭ. Nevertheless, in 1959, he was appointed, to Nasser's displeasure, as the director of the legal department at the Arab League's Institute of Arab Research and Studies (IARS) in Cairo, now administered by the Arab League Educational, Cultural and Scientific Organization. El-Sanhuri taught a course in comparative Islamic and Western law at the IARS. In 1970, on advice of Cairo University, Alexandria University and Ain Shams University, the Egyptian state awarded el-Sanhuri its prize for social sciences and culture. El-Sanhuri died on 21 July 1971 at his home in Alexandria, and was buried in Heliopolis, Cairo.

Method

El-Sanhuri's major contribution to modern Arab legal and intellectual thought is his method of modernizing Islamic fiqh and sharia by reconciling rules and laws within Islamic Madhhabs with modern European jurisprudential concepts. The reason he resorted to European civil law and Western jurisprudence was not on identitarian or colonial premises, rather, it was on account of their highly elaborate and intellectualised character. This reconciliation is predicated upon an important distinction. According to el-Sanhuri, the process of elaborating law and dispensing justice can only rightly operate when the ulama and the jurists are substantively distinguished: whereas the ulama are responsible for elaborating ibadat, that part of Islamic law which pertains to rituals and worship, and must therefore be confined to the religious parts of fiqh, the jurists proper concern themselves with the temporal and particular (i.e. variable) parts of fiqh and sharia. This would allow jurists, judges and law-makers to keep 'modern' Arab justice from being wholly subordinated to Islamic theology while drawing on Islamic legal principles all the while. In this way, justice would remain faithful to its historic roots but with an invariable view of reaching humanistic ends; particularly when state legislation, the sharia and traditional customs all fail to find a solution to one or more legal or juridical problems. The tenets of El-Sanhuri's philosophy are unity and experience; as he explains in Le Califat, a careful balance must be achieved between both:

It will be prudent, in reducing modernized Muslim law to legislative expression, to have recourse to formulas flexible enough to allow for the adaptation of the system by the courts to the changing needs of court practice through following the general guidelines set out by doctrine. It will also be desirable that a relative unity of vision guides the legislators of different Muslim countries, which will happen by the very force of the pursuit [of sources], since they will draw all the first inspirations of their legislative work from the same source, Muslim doctrine; but it will of course also be necessary to take into account the particularities of the economic life of each country... The existence of a common ground of ideas between the various [jurisdictional] laws would render conflicts of laws less acute, widen the field of activity of lawyers in Muslim countries, and give more solidity to the creative work of the jurisprudence of the courts, which, in each of the Muslim countries, could benefit from the judicial experiments carried out by the related case law.

Academic commentary

One commentator argued that el-Sanhuri's codes reflected a "hodgepodge of socialist doctrine and sociological jurisprudence." Other commentators have pointed out that his place in the legal history of the modern Middle East is nevertheless secure; indeed, his Al-Wasit "adorns the bookshelves of many an Arab law firm, even in countries where the Egyptian Civil Code is not law".