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Abd El-Razzak El-Sanhuri

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Abd el-Razzak el-Sanhuri or ‘Abd al-Razzāq el-Sanhūrī (Arabic: عبد الرزاق السنهوري) (11 August 1895 – 21 July 1971) was an Egyptian jurist, law professor, judge and politician. He is best remembered as the primary author of the revised Egyptian Civil Code of 1948. El-Sanhūrī's multi-volume masterwork, Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd, a comprehensive commentary on the Egyptian Civil Code of 1948 and on civil law more generally, published during 1952-1970, remains in print and is highly regarded in legal and juristic professions throughout the Arab world. El-Sanhūrī was Minister of Education in the Cabinet of Mahmoud El Nokrashy Pasha from 1945-1946 and again from late 1946 to 1948.

‘Abd el-Razzāq el-Sanhūrī
عبد الرزاق السنهوري
President of the Egyptian Council of State
In office
3 March 1949 – 29 March 1954
PresidentHimself
Preceded byKāmil Pasha Mursī
Succeeded by‘Alī al-Sayyid
Minister of Education
In office
24 February 1945 – 15 February 1946
Preceded byMohammed Hussein Heikal
Succeeded byMuḥammad Ḥasan al-‘Ashmawi
In office
9 December 1946 – 2 March 1949
Preceded byMuḥammad Ḥasan al-‘Ashmawi
Succeeded byAḥmad Mursī Badr
Under-Secretary of Education
In office
January 1942 – March 1942
Dean of the Law Faculty at the Egyptian National University (Cairo University)
In office
8 October 1936 – 15 October 1937
Personal details
Born(1895-08-11)August 11, 1895
Alexandria, Egypt
DiedJuly 21, 1971(1971-07-21) (aged 75)
Alexandria, Egypt
Political party
Alma materKhedival School of Law, Cairo
University of Lyon (PhD)

He was subsequently appointed as President of the Egyptian Council of State. El-Sanhūrī's tenure as President of the Council of State lasted until 1954, when he was dismissed by coercion. He has been described as "a personality of unique embroidery, never to reoccur".[1] An avowed advocate of Arab unity, el-Sanhūrī was notably active in the legal and institutional reforms of different Arab countries throughout most of his adult life. He presided over a committee which drafted the Iraqi Civil Code, while at the same time serving as dean of the Baghdad Law School, from 1935 to 1937. He also contributed to a drafting project of a Syrian civil code throughout the early 1940s. El-Sanhūrī also drafted various public and private laws of Kuwait, Sudan, Libya and Bahrain.

Early life and education

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El-Sanhūrī was born on 11 August 1895 in Alexandria. His father, who, by the time of el-Sanhūrī's birth, had lost his fortune, worked as a 'minor' employee at the Alexandria Municipal Council.[2] el-Sanhūrī had six other siblings. His father's passing in 1900 aggravated the family's destitution. El-Sanhuri obtained his secondary school certificate from the ʿAbbāsiyya in 1913 and then joined the Khedival School of Law (later the Faculty of Law at Cairo University) where he obtained his BA in 1917. He was subsequently assigned to the position of Deputy Prosecutor at the National Court of Mansura which he retained until 1919, when his incitement of riots during the Egyptian Revolution of 1919 led to his dismissal. After this, el-Sanhūrī briefly worked as a teacher in Madrasat al-qadā ash-shariyya.[3] In 1921, el-Sanhūrī moved to Lyon, France to obtain his doctorate. During that time, he undertook research under the French jurist Édouard Lambert. El-Sanhūrī returned to Cairo in 1926 to take up a position as a teacher of civil law at his alma mater.

Cairo and Baghdad in the 1930s

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After spending eight years as a teacher of civil law at the Faculty of Law in Cairo, el-Sanhūrī 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-Sanhūrī with presiding over.[4] Interruptions brought about by the 1936 Iraqi coup d'état and strong opposition from Islamists brought the project to a halt. In 1937, el-Sanhūrī returned to Cairo. Around this time, he interacted with secessionists of the Wafd Party and joined the Saadist Institutional Party.

The Egyptian Civil Code

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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-Sanhūrī 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

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In 1943, el-Sanhūrī 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-Sanhūrī 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.[5]

President of the Council of State

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In March 1949, el-Sanhūrī 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-Sanhūrī, 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.[6] According to Farhat Ziadeh, a mob instigated by "some army elements" assaulted el-Sanhūrī.[7] 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".[8] When Nasser called at the hospital in which el-Sanhūrī was receiving treatment for the injuries he sustained from the assault, el-Sanhūrī refused to see him. It is often claimed that el-Sanhuri was unable to leave Egypt following this incident. It is unclear whether el-Sanhūrī 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.[9] 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.[10]

Later life

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Most of el-Sanhūrī'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,[11] 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-Sanhūrī taught a course in comparative Islamic and Western law at the IARS.[12] In 1970, on advice of Cairo University, Alexandria University and Ain Shams University, the Egyptian state awarded el-Sanhūrī its prize for social sciences and culture.[13] El-Sanhūrī died on 21 July 1971 at his home in Alexandria, and was buried in Heliopolis, Cairo.[14]

Method

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El-Sanhūrī'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-Sanhūrī, 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.[15] The tenets of El-Sanhūrī'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.[16]

Academic commentary

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One commentator argued that el-Sanhūrī's codes reflected a "hodgepodge of socialist doctrine and sociological jurisprudence."[17] Other commentators have pointed out that his place in the legal history of the modern Middle East is nevertheless secure; indeed, his Al-Wasīṭ "adorns the bookshelves of many an Arab law firm, even in countries where the Egyptian Civil Code is not law".[citation needed]

Works

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  • Les restrictions contracluelles a la liberle individuelle de travail dans la jurisprudence anglaise, Paris: Marcel Biard, 1925.
  • Le Califat, Paris: Librairie Orientaliste Paul Geuthner, 1926.
  • Al-'Aqd al-ijar. Cairo, 1930.
  • Nazariyyat al-'Aqd. Cairo, 1934
  • Al-Mujiz fi al-nazariyya al-'amma lil-iltizamat fi qanun al-madani al-misri. Cairo, 1936.
  • Al-Wasīṭ fī sharḥ al-qānūn al-madanī al-jadīd. (10 volumes) Cairo, 1952–1970.

References

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  1. ^ al-Jamī‘ī, ‘Abd al-Bāsit (1971). "'Abd al-Razzāq al-Sanhūrī: al-rajul al-lathī faqadnāh". Al-Fikr alMu'āṣir. 78: 99–104.
  2. ^ ʿAmāra, Muḥammad (2009). l-Duktūr ʿAbd al-Razzāq al-Sanhūrī: Islāmiyyat al-Dawla Wa al-Madīna Wa al-Qānūn. Dār al-Salāma. p. 17.
  3. ^ Castro, Francesco (1984). Studi in onore di Francesco Gabrielli bel suo ottantesimo compleanno. p. 176.
  4. ^ Castro, Francesco (1984). Studi in onore di Francesco Gabrielli bel suo ottantesimo compleanno. p. 187.
  5. ^ Saleh, Nabil (1993). "Civil Codes of Arab Countries: The Sanhuri Codes". Arab Law Quarterly. 8 (2): 161–167. doi:10.1163/157302593X00050. JSTOR 3381555.
  6. ^ Hill, Enid (1988). "Al-Sanhuri and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of 'Abd al-Razzaq Ahmad al-Sanhuri, Egyptian Jurist and Scholar, 1895-1971 [Part II]". Arab Law Quarterly. 3 (2): 9182–218.
  7. ^ Ziadeh, Farhat (1968). Lawyers, the Rule of Law and Liberalism in Egypt. Hoover Institution on War Revolution and Peace. p. 156.
  8. ^ Shakra, Gamal (1985). al-Haraka al-siyasiyya fi misr min thawrat yūlyo 1952 ila azmat mars 1954. p. 590.
  9. ^ Saleh, Nabil. "Civil Codes of Arab Countries: The Sanhuri Codes". Archived from the original on 7 December 2008. Retrieved 2008-10-24.
  10. ^ Castro, Francesco (1984). Studi in onore di Francesco Gabrielli bel suo ottantesimo compleanno. pp. 203–204.
  11. ^ Castro, Francesco (1984). Studi in onore di Francesco Gabrielli bel suo ottantesimo compleanno. p. 203.
  12. ^ Wood, Leonard. “Al-Sanhuri’s Theory of Rights in Islamic Jurisprudence: The Final Act of Franco-Egyptian Comparative Law.” The Maghreb Review, 45, no. 1 (2020), 856-895, 873; 'Imara, Muhammad. (1999). Al-Duktur 'Abd al-Razzaq al-Sanhuri: islamiyyat al-dawla wa-l-madaniyya wa-l-qanun. Cairo: Dar al-Rashad, 62-65.
  13. ^ Arthur Goldschmidt, Biographical Dictionary of Modern Egypt, Lynne Rienner Publishers: 2000, p. 181
  14. ^ Wood, Leonard, “Sanhuri, ʿAbd al-Razzaq Ahmad al-.” Dictionary of African Biography. OUP USA. 2 February 2012. p. 268. ISBN 9780195382075.
  15. ^ Abd Al-Razzak Al-Sanhuri, Egyptian Civil Code, Article 1, 1949, «in the absence of any applicable legislation, the judge shall decide according to the custom and failing the custom, according to the principles of Islamic Law. In the absence of these principles, the judge shall have recourse to natural law and the rules of equity.»
  16. ^ al-Sānhūrī,‘Abd al-Razzāq al-Sanhūrī (1926). Le Califat. pp. 578–584.
  17. ^ Amr Shalakany, "Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise," Islamic Law and Society (8): 201-244, 2001

Bibliography

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