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NOTE ON ARTICLE 9 OF THE STATUTE OF THE PERMANENT COURT OF INTERNATIONAL JUSTICE AND THE POSITION OF THE MOSLEM LEGAL SYSTEM AND THE MOSLEM CIVILISATION AMONG THE MAIN FORMS OF CIVILISATIONS AND PRINCIPAL LEGAL SYSTEMS OF THE WORLD PRESENTED BY THE DELEGATIONS OF THE MOSLEM STATES OF THE NEAR EAST 1

I

1. The Moslem legal system is a system of unquestionable originality. Its autonomy is evident, as a legal system largely governed by the distinctive character of a social community very different from that in which other legal systems have reached normative maturity.

The International Congress on Comparative Law which was held at The Hague in 1932 decided that Moslem Law is an entirely independent source of comparative law. In 1938 when the question of the relationship between Roman Law and Moslem Law was brought to the consideration of the Second Congress on Comparative Law, the Congress stated explicitly that Moslem Law was an autonomous legal system which did not depend on other established systems. The body of professors representing Egypt at that Congress had submitted to it a memorandum to illustrate this scientific as well as historical data by developing a descriptive research on the scope of the constitutive elements of the Moslem legal system and its creative evolution through the normative activities of its complementary sources.

The following is a summary of the theories developed in the above-mentioned note.

II

2. One must never confuse Moslem religion with Moslem Law. The first period of Islam had barely ended when the advance of the science of Law, as well as the development of legal relations, helped dissociate the intricate elements which composed the general Moslem system; thus, the precepts of faith were isolated from legal rules. Faith, which is the subject of a separate science: Al Kalam is entirely distinct from: Al Fikh, or Law, which contains the precepts of conduct and actions. It is true that Law evolved along the general lines of religion, but however great the influence of religion, Law in the mind of all represented an autonomous discipline of a secular character, in its finality at least.

In order to clearly bring out this character one must distinguish between two periods in the function of Moslem Law; the first one is that in which formal sources of legal rules stem from the divine command, expressed directly in the Koran or indirectly in the tradition of the Prophet “Al Sunna”. The second period is that of scientific development of Moslem Law through Cheria’s two

1 Reprinted from Documents of the United Nations Conference on International Organisation, San Francisco, 1945 vol. 14, United Nations Committee of Jurists, p.p. 375-379.

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supplementary sources: The consensus on “al Ijma” and the Analogy or “Al Qiyas”

3. It is incontestable that in the first period the Moslem legal system established by the Koran and “Al Sunna” had been formed independently of any outside influence of other legal systems. Its religious stamp as well as a generality of its principles have clearly distinguished it from all the other legal systems in force in the other countries during this same period. As for its religious stamp it was in the very nature of things. The Koran at first dealt with religion and morals, particularly in the first verses. Later one finds legal rules concerning not only man’s actions either in the civil or penal field but also relations between nations. one finds standards on war, peace, family organisation, property, obligations, crimes, repressive, punishment, even on judicial procedure. All these rules are mingled with religious concepts which accounts for the religious or rather moral influence which characterises Moslem Law. Moreover, this religious influence was justified in order to insure the prominence of moral principles which are recommended by religion and which in the final analysis must govern human nature. But this religious influence does not in any way affect the legal character of the rules of the Islamic Law, nor their intrinsic value, considered as a whole as a homogenous and coherent normative system. A large part of these legal rules established by the Koran and Sunna have been enacted to abrogate or modify preislam customs, in other terms they constitute legal reforms realised by Islam to counter balance general tendencies in preislamic law. This part was of purely Arabic formation, while the other was in view of the changing needs of the Moslem community. Thus, Moslem legislation translates in a truly remarkable way all social transformations required by the development and progress of the Moslem community, welcoming certain preislamic institutions, correcting numerous points of the pre-existing Law and lastly, formulating new principles in consideration of the needs and aspirations of Islamic society.

4. In the second period of the evolution of Moslem Law, after the Prophet’s death, the divine sources cease to inspire the legal system of Islam, but a purely scientific work continued to fill the gaps of the Moslem legal order and to insure the development of Law and its adaptation to social needs through two supplementary sources, the Consensus and the Analogy. These two purely secular sources have enabled Moslem jurists to introduce in the legal system a progressive element of considerable importance; it is through these sources that doctrine and jurisprudence have shown a truly remarkable creative activity and have thus formulated a rather important part of the Islamic legal system.

It is, however, to be noted that the normative activity expressed by the supplementary sources was not of a nature to prepare the Moslem legal system to absorb, at least without restraint, the foreign institutions or civilisations. A certain number of these have crept into the Moslem Law, through the channels of one or the other of the complementary sources; even then, such institutions have not retained their individuality. They blend themselves in the Moslem legal system and lose their own physiognomy to follow exactly the pattern of Moslem technique.

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5. In the field of historical and rational data as well, there is no doubt that the Moslem Law is an autonomous legal system. Furthermore, the technical structure of Moslem Law brings forth the fundamental differences which place the Moslem system in a class apart from other legal systems. Let us not go further without noting that the legal technique of Moslem public Law is thoroughly different from that of European or American institutions pertaining to state organisation and to international or domestic relations. In this respect, one has never doubted the originality of this legal system. In fact the Moslem rules concerning the domestic and international activities of the State present no similarity whatsoever to those belonging to codes of Occidental Law. A mere perusal of the Moslem rules dealing with peace, war, or international world organisation will suffice to convince that public law, be it domestic or international, enjoys among Moslem peoples a certain autonomy, characteristic phenomenon of Moslem civilisation. To quote only one of the most typical examples, one can consider the Moslem conception of Unitarian State, this very conception which accounts for the existence of the Moslem world “Dar El Islam” as a political entity, which tends to insure an international organisation of a sui generis nature.

6. The Moslem Law, public as well as private, is based on a highly developed and powerful moralising concept which pervades the entire Moslem system. It is true that any legal system which has reached a certain degree of evolution contains a moral element. The moralising concept of the Moslem system, however, is not the result of a slow evolution, it was born with the fundamental principles of the legal order and this constitutes an integral part of it. One can therefore say that it has not assumed a subsidiary character and that it has steadily retained its vigor during the evolution of the legal system. This moralising tendency which pervades the entire Moslem legal system and which is explained by its relation to religion, has enabled the Moslem jurists to elaborate several important theories, such as that pertaining to the abuse of Law as based on the adage “Hadith” of the Prophet asserting that “no one has the right to harm his neighbour” and the theory of imprevision conceived on the provisions of the Koran stating that “no one is held to the impossible”. Another Koran text prohibiting all unjust acquisitions contains the seed of a range of theories of public and private Law, a justly recognised prerogative of the free individual, is respected by Moslem Law to the extent of being considered as imprescriptible. There again can be felt the moralising tendency of Law throughout Islam. Should we confine ourselves to ethics, we could not pretend to destroy the rights of the individual for the simple reason that he has not availed himself of or exercised them for a certain period of time. But legal proceedings can be prescribed; and in this way, Moslem jurists are able to conciliate exalted moral principles and the imperious needs of practical life by an original conception tending to separate right from legal proceedings; legal proceedings present themselves form independent in its existence, of the right, the defence of which it insures.

Such a powerful moralising conception will contribute to mitigate the rigor of legal rules; such a system will serve as a regulator capable of furnishing in the settlement of international conflicts theories extremely flexible and evolutive.

III

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7. Article 9 of the statute of the Permanent Court of International Justice states:

“At every election, electors shall bear in mind that not only should all the persons appointed as members of the Court possess the qualifications required, but the whole body also should represent the main forms of civilisation and the principal legal systems of the world.”

The originators of the stature, in the drafting of this article, must certainly have envisaged, among others, the Arabic civilisation and the legal system of Islam.

Accordingly, the government of Near Eastern Moslem States, in Letters addressed in September, 1939, to the Secretary General if the League of Nations, pointed out that “the fact cannot be disputed that Moslem civilisation, owing to its glorious past as well as to its present effulgence, constitutes one of the main forms of civilisation.

“On the other hand, Moslem Law, governing as it does an important part of the peoples of the world, is an autonomous legal system boasting its own sources, structure and conceptions.”