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North Africa: Libya

By:
Anna Baldinetti
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

North Africa: Libya

The modern state of Libya in North Africa was formed from the Ottoman provinces of Tripolitania and Cyrenaica. It remained under Ottoman control until the Italian occupation in 1911. During the Ottoman period, the Ottoman legislative system was in force, with the niẓāmīyyah and Shariʿah courts active after 1869. The Shariʿah courts were each headed by a qāḍī appointed by the Ottoman authorities. They dealt with numerous matters, including those of personal status, family law, and inheritance.

After the Italian colonization (1911-1943), the new colonial government established a bifurcated system of courts: civil and penal courts and Shariʿah courts. The secular courts were staffed by Italians, and their regulations were drawn from the Italian legislative system. The first legal regulations for Tripolitania and Cyrenaica (1913) established that the colonial administration appointed the qāḍīs of the Shariʿah courts. These qāḍīs were given power to hear cases involving family law, personal status, and hereditary matters and resolved them according to the Mālikī school of law. The judgements passed by the Shariʿah courts, however, needed the approval of the provincial Italian judge. The Ottoman legislation concerning the waqfs was not changed and remained in force.

With the rise of fascism (1922), in 1923 the law concerning the Shariʿah courts was modified for the first time: Shariʿah court judgements no longer had to be approved by the Italian authorities, and Shariʿah courts were given jurisdiction over certain minor civil and penal controversies. In 1927 the system of the Shariʿah courts was revised yet again. The courts now lost their judicial independence and were stripped of jurisdiction over any inheritance matters. More reforms were to come.

In 1935 the colonial authorities established in Tripoli the Madrasa al-Islamiyya al ‘Ulyā (Institute of Islamic Studies; IIS) which trained the ʿulamāʾ and the officers to be assigned to the Shariʿah courts. In 1937 a new law increased the number of the Shariʿah courts and established that their judgments could be appealed to new High Shariʿah courts. These High Sharʿiah courts were formed by the qāḍī of the chief town in a region and three judges appointed among other qāḍīs and ʿulamāʾ.

Independence from Italy did not lead to significant reforms as significant. In 1954, shortly after independence (1951), the newly established constitutional monarchy proposed the unification of the courts. The proposal failed, and the bifurcated model survived until the revolution of 1 September 1 1969 overthrew the monarchy and brought Muʿammar Qadhdhāfī to power. Qadhdhāfī’s revolution brought about radical changes in the structure of the state, in the role of Islamic law in the state, and in the official interpretation of Islam.

On 11 December 1969, the new Revolutionary Command Council issued a Constitutional Proclamation. Article 2 of the proclamation declared Islam the state religion. It also provided for the promulgation of a permanent constitution, although it did not invalidate the existing laws, as long as they did not conflict with the proclamation. Thereafter, the Qadhdhāfī government began to implement significant reforms in both the teaching of Islam and the administration of Islamic law in the country.

In 1971 a Legislative Review and Amendment Committee carried out a comprehensive review of the laws in order to purge material contrary to the Shariʿah and to harmonize all laws with the Mālikī school of law. In 1973, the Shariʿah and civil courts were amalgamated in a single system, which assigned more weight to the Shariʿah than the civil courts had previously done. Separate religious courts, however, were abolished. Alongside these structural changes in the court system, there were deep changes in the way that the state conceptualized Islam and taught its citizens about Islam.

On the surface, Libya’s commitment to the Shariʿah seemed to grow during the Qadhdhāfī regime. A permanent constitution, which had been anticipated by the Constitutional Proclamation, was never promulgated, and legislation was grounded in a series of declarations and laws. The Declaration on the Establishment of the Authority of the People (2 March 1977) stated that the Qurʾān was the constitution. The Great Green Charter of Human Rights (1988) made reference to the sacred law. Also, in subscribing to international conventions, Libya referred to the Shariʿah. For example, Libya ratified CEDAW (United Nations Convention on the Elimination of All Forms of Discrimination against Women) with reservations. It was specified that the convention should adhere to the Shariʿah and that it would not be applied to the extent that it was inconsistent with the country’s personal status laws.

However, the official interpretation of Islam during this period began to depart from traditional Sunnī interpretations of the Sharʿiah. During the 1970s, Libyan society Islamized in a way that affected the legal system. Qadhdhāfī increasingly used Islam as a key element of his political legitimation and as a constituent factor of national identity. Alongside this, however, one saw a dramatic rejection of traditional Sunnī orthodoxy. In 1975, the first part of Qadhdhāfī’s Green Book was published; it gave religion the status of the law of society, but at the same time it delegitimized traditional religious authorities (ʿulamāʾ) and discarded the traditional doctrine that the sunnah and ḥadīth were each revealed sources of Islamic law. Instead, it relied solely on the Qurʾān for insight into God’s command.

Accordingly, Islamization in Libya coincided with significant reforms in the area of family law. Law no. 10 of 1984 codified marriage and divorce laws and claimed to be based on the Shariʿah. The 1984 law strengthened women’s rights: for instance it introduced the minimum age of twenty for marriage (art. 6) and stated that a guardian (walī) could not force a woman to marry (art. 8); the contract could include provisions that were not in conflict with the purpose or aims of the marriage (art. 3). Polygamy was allowed (art. 13), but the article was amended two times. Originally the law decreed that polygamy could be permitted by the court; later Law no. 22 of 1991 established that the husband needed the written consent of his wife. According to the last reform (Law no.22 of 1994) the consent of the wife must be declared in a court. It should be noted that Qadhdhāfī criticized polygamy on several occasions.

Inheritance laws, however, continued to be based on a more traditional Sunnī understanding of the Shariʿah. In addition, a more traditional Sunnī vision of Sharʿiah influenced the drafters of Qadhdhāfī’s criminal laws. Thus, in the 1970s ḥadd penalties were resumed. Ḥadd laws reintroduced the crimes of theft, brigandage, fornication, and false accusation of unchastity, as well as the prohibition of alcohol consumption.

In the first decade of the new millennium, following the end of the international community’s embargo of Libya, Qadhdhāfī’s government sought to rehabilitate its international image and respond to the most important ratified international human rights treaties. As part of this process, it began to review and tentatively propose revisions to some laws. Drafts of new penal and criminal procedure codes were discussed from 2005 to 2006. They were apparently never approved. A project for a new constitution was presented during the years 2007–2008 by the Gaddafi International Charity and Development Foundation (GICDF), headed by Qadhdhāfī’s son, Saif al-Islam This project too failed to be implemented before the fall of the Qadhdhāfī regime.

In 2013, two years after its revolution, Libya is still in the throes of transition. While it is difficult to predict at this moment what Libya’s new constitution will look like or how its laws will evolve in the coming years, it seems safe to assume that the Shariʿah will play a relevant role in the post-Qadhdhāfī Libyan political system—although it is unclear exactly how the Shariʿah will be interpreted. In 2011, an armed revolt toppled the government of Qadhdhāfī. In August 2011, while the revolt was in progress, the rebels’ National Transitional Council (NTC) in Benghazi issued a Draft Constitutional Charter for the Transitional Stage, which set the parameters for a transitional state and stated: “Islam is the Religion of the State and the principal source of legislation is the Shariʿah.” On the formal declaration of Libya’s liberation on 23 October 2011, the NTC again stressed that the Shariʿah would be the fundamental source of legislation and announced the banning of any law inconsistent with it. One interesting question is how the new state will interpret the Shariʿah. Some leaders of the transitional government were associated with Islamist groups that were not sympathetic to the interpretation of Islam that was associated with Qadhdhāfī. Libya’s General Congress (elected on 7 July 2012) decided direct elections, to be held in 2013, for the Costituent Assembly in charge of drafting the permanent constitution.It seems probable that the version of Shariʿah that informs law in the new Libyan state will diverge from the interpretation found in the Green Book.

Bibliography

  • Hinz, Almut. “The Development of Matrimonial Law in Libya.” Journal of Libyan Studies 3.1 (Summer 2002): 13–29.
  • Mayer, Ann Elizabeth. “In Search of Sacred Law: The Meandering Course of Qadhafi’s Legal Policy.” In Qadhafi’s Libya, 1969 to 1994, edited by Dirk J. Vandewalle, 113–137. St. Martin’s: New York, 1995.
  • National Transitional Council Official Website [www.ntclibya.org/english]. “Draft Constitutional Charter for the Transitional Stage (Libya 2011)” [www.constitutionnet.org/vl/item/ draft-constitutional-charter-transitional-stagelibya-2011].
  • Otman, Waniss A., and Erling Karlberg. “The Libyan Legal System and Key Recent Legislation”. In The Libyan Economy: Economic Diversification and International Repositioning, pp. 63–86. New York: Springer, 2007.
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