The latest issue of the International Journal of Constitutional Law carries an article by Dr. Mohammad Fadel, a law professor at the University of Toronto,[1] in which he proposes that a shift to common law (also known as Anglo-Saxon Law) as practiced in Great Britain, the United States, and other nations—mostly former British colonies—could be an alternative to the European system of civil law applied in most countries, including many Arab states, where the principles of civil law cross over with Islamic law. Fadel maintains that common law could assist Egypt and other nations of the Arab Spring, such as Tunisia, in their democratic transformation in so far as these countries are witnessing a shift toward democracy.[2]
Fadel founds his thesis on the difficulty faced by the courts in countries such as Egypt, where a tug of war persists between a constitutional commitment to Islamic law, the country’s principle source of legislation, and positive law, which is often imported during the process of a modern state’s institution building, such as the Napoleonic Code in the 19th century. In this example, the support this code accorded to the fragile legislative power of the state in the judiciary was one of the main reasons for its adoption in Egypt, whereas the courts were bolstered by the common law. During the 1940s and 1950s, attempts to adapt the new legal code to local needs by Islamic jurist Abd El-Razzak El-Sanhuri, and in some way to Islamize it, by drawing upon the various schools of Islamic jurisprudence[3] led to difficulties. Detailed texts of positive state law might tie a judge’s hands when selecting opinions from schools of Islamic law and issuing verdicts that the court could defend, while also defending the foundations upon which those verdicts were reached, which could lead to embarrassing situations in which a court’s verdict might be seen to merely apply the state’s diktat to the law.
Fadel notes that the higher constitutional court in Egypt does not face this problem the way ordinary courts do because the constitutional court has always been able to pick and choose among schools of jurisprudence and issue provisions on new bases, with a justification that refers to general conventions in common law, along the lines of examples that Fadel cites. All of this has served to increase the legal and religious legitimacy of the constitutional court’s provisions, when common law has required the recording of such cases, and has enabled the judge to exert independent judgment without having to refer to written verdicts and laws. The judge’s effort is limited to an exacting application of these laws and provisions to the matter at hand, even if it could lead to contradictions in practice or to an inability to realize a law’s ultimate intentions by simply adhering to the letter of the law. According to Fadel, it is possible for a shift to common law to contribute to both an enhancement of the legitimacy of the judicial system in general, and an important facilitation of the courts’ mission to create a balance between laws and constitutional undertakings (as discussed by John Rawls in his book Political Liberalism), on the one hand, and the requirement of modernization, human rights, and democratic transformation, on the other.
I will leave the legal aspects of Fadel’s thesis to specialists, but I believe there are two points that may have an impact on the extent to which this shift from civil to common law can be applied, as well as the extent of the influence this shift could have. The basic objective of Fadel’s proposal is to provide the judge with more scope for ijtihad, the independent exercise of judgment, in reaching verdicts and in selecting the legal bases for those verdicts. However, this thesis requires, among other things, the presence of a judge who has mastered the mechanisms of ijtihad, in the first place, and, in the second, a judiciary that is highly qualified both politically and morally; otherwise, Fadel’s proposal as a possible solution gives way to catastrophic judicial practices beset by a great many question marks, for many familiar reasons.
In the US, for example, no student is admitted to law school without already having obtained a university degree; the study of law is a form of higher education that cannot be commenced while the student is still at an adolescent age. Enrollment in law school requires passing a series of exams that require a great degree of preparation to ensure the candidate is unassailably practiced and well-equipped with skills in language, logic, and critical thinking that are geared to the study of law alone. Furthermore, one might add that such study is expensive, and depends fundamentally upon loans that the student repays after going into practice. In other words, the study of law requires intellectual maturity, unshakeable perseverance, a love for the subject matter, and long-term commitment. It also focuses upon the development of critical thinking, logical analysis, and writing skills through the study of actual cases, rather than through the memorization of a corpus of laws and procedures. The difference between thought and analysis, on the one hand, and memorization, on the other, is one of the primary differences between advanced and underdeveloped education systems. I do not wish to convey an overly idealistic image of an education system that has its own problems, as students of law in American universities know all too well, nor do I want to underestimate the prosecution and defense’s roles in litigation in the Anglo-Saxon legal system. However, one can still claim that studying law in the US is a serious course of study that requires a committed student capable of meeting advanced personal and intellectual specifications.
Naturally, one cannot expect such capabilities and knowledge of a 17-year-old student who may have opted to study law because of a weak score in the baccalaureate exams and an inability to secure admission in a prestigious university. Such a student would lack the maturity, motivation, and commitment to the field of study, a field that cannot be approached as a simple mathematical problem with straightforward solutions. Law involves interaction with other people in all of their relationships and social dilemmas; therefore, it requires someone who is genuinely concerned with these matters, and enjoys much greater intellectual and analytical ability than is required by other professions. In the Arab context, mastering the skills needed to investigate and comprehend texts of Islamic law and jurisprudence requires in itself a substantial degree of knowledge in a number of fields, including jurisprudence (fiqh), the Quran, and the Hadith, among others. Since law students are often among those with the weakest academic achievement (oftentimes a product of a sorry state of moral indolence), it cannot be right for such a student to be given additional powers, not only to apply the law, but to define it in the absence of legal precedents, when beginning to practice the judicial profession.
In addition, such a proposal cannot be workable in system that is dominantly corrupt from the time a student graduates. For example, a student’s appointment may not be made based on merit, but on the father’s relations. This proposal would not be viable when serial corruption persists, allowing new law graduate to disregard certain laws for a number of reasons—immunity, possible concessionary benefits, or relations and shared interests with others who are networked into the same chain of corruption. This chain might well continue with the judge accepting bribes, for example, either because of inadequate salaries or greed and avarice. When a state system is not democratic, it is impossible to imagine the existence of an independent judiciary since a judge may be asked to participate in falsifying election returns (in states requiring judicial oversight of elections) or to at least hide any fraud. To remain in the good graces of the ruler, a judge may even be asked to behave differently with political rivals and opponents than with insiders: in the first instance lenience can be accorded to standards for convicting evidence, and stringency can apply to verdicts against them; in the second, stringency can be applied to convicting evidence and punishment can be averted for scant reasons.
All of the above suggests that the implementation of Fadel’s proposal would require the entire judicial structure to be reformed, beginning with the study of law. This is not something that can be achieved by revising constitutional texts or parliamentary legislation without first bringing about an educational and political environment that allows for the graduation of prospective judges who are reasonably grounded in higher learning and the sciences, and who enjoy a high degree of independence and probity. The implementation of the proposal in a culture in which the judges are indistinguishable from the average citizen, and whose unscrupulousness and insolence is on a par with that of some criminals, is tantamount to being a blueprint for judicial colonies in which judges take on the role of the army’s security services and the police—the worst conceivable form of state in which citizens are differentiated into either overlords enjoying all rights without being subject to law, or slaves deprived of both rights and dignity, under a ruler who considers himself to be the source of law if not the foundation of the state itself.
There is, however, another aspect to the implementation of common law that merits consideration—the existence of a sworn jury whose members are chosen randomly from among the citizenry at large, and who themselves determine if an accused is guilty. There could be an urgent need for such a jury, in case of justifiable doubts concerning the integrity of any judiciary, whether for reasons of political pressures or moral depravity in a system that deprives the judges of denunciatory power and limits them to oversight of the litigation process to ensure its good working order and obtain verdicts based on objectively written rules. The most urgent need here pertains to criminal cases, especially those of a political nature, such as matters of national security. Nevertheless, such a proposal stands to run up against an obstacle posed by the high rate of illiteracy in Egypt along with the absence of any conceivable opportunity to persuade judges to waive what they regard as their right to determine legal accountabilities, in addition to reaching verdicts. This holds true no matter what justifications are offered to the judges that they might agree with, including the acknowledgment of corruption by some or even many of their colleagues, for instance, and whatever their convictions regarding the utility of the proposal in question for the reputation of the judiciary and the integrity of its procedures and verdicts.
[1] Mohammad Fadel, “Judicial Institutions, the Legitimacy of the Islamic State Law and Democratic Transition in Egypt: Can a Shift toward a Common Law Model of Adjudication Improve the Prospects of a Successful Democratic Transition?” International Journal of Constitutional Law,” vol. 11, no 3 (2013), pp. 646-665.
[2] Fadel wrote this article prior to the coup of July 3, 2013 in Egypt against the elected government, a coup that dispelled any chance of establishing true democracy in the country.
[3] One example of this is that he took the judicial opinion on a case from the Maliki school, and required the evidence required by the Hanafi school, for the same case, to be admissible.
