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Sanhūrī, ʿAbd al-Razzāq al-

By:
Clark B. Lombardi, Emad Eldin Shahin
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.

Sanhūrī, ʿAbd al-Razzāq al-

ʿAbd al-Razzāq al-Sanhūrī (1895–1971) was an Egyptian jurist, scholar of comparative law, and theorist of Islamic law. As a graduate student in France he came to embrace a modernist theory of Sharīʿah as a series of timeless principles that could be induced from a comparative study of fiqh, and he argued that law in the Arab world should be drafted carefully to ensure that they were as modern as possible without violating any of these essential principles. Upon his return to Egypt he continued to advocate for the reform of Arab law and in the 1940s and 1950s he acted as the lead draftsman for much-admired civil codes in Iraq and Egypt. Politically sidelined in Nasser’s Egypt, he turned his attention to scholarship and to advising other Arab countries on legal and constitutional reform. Even in countries that did not formally retain him as an advisor, his influence was felt, and many Arab civil codes in force today are modeled on the codes he drafted for Egypt and Iraq. Even as Sanhūrī worked on civil law in the Arab world, he continued his own studies in comparative fiqh and encouraged further research in the field of comparative fiqh (al-fiqh al-muqārin).

Born in Alexandria Egypt in 1895 Sanhūrī received a modern education and graduated from the Khedival School of Law in Cairo in 1917. Sanhūrī was appointed assistant prosecuting attorney, and by 1920 had joined the School of Sharīʿah Judges as a lecturer. The following year he went to the University of Lyon for postgraduate studies under the famous comparativist Edouard Lambert.

Sanhūrī’s graduate work was performed during a time when Muslims were debating the proper form of Islamic government and about the proper nature of Islamic law in the modern era. Muslims were struggling to understand the implications of political and legal developments that had taken place during the colonial era. One divisive question involved the institution of the caliphate. Should the modern Sunnī community try to reinvigorate the institution of the caliphate? And, if so, what should a modern caliphate look like? Muslims also debated whether modern majority Muslim states could continue to realistically base their legal systems on Sharīʿah. By the 1920s countries like Egypt had gone far down the path of modernizing and Westernizing their legal systems. As part of this process Egypt in the 1880s had abandoned the traditional practice of resolving matters according to uncodified fiqh—at least for most private legal disputes. Judges were instead instructed to resolve disputes according to codes of law that were transplanted from France and other continental European countries. While most Egyptians were largely comfortable with the idea that the state should codify its law, the move toward European law was controversial. Some wanted the state to develop and implement a codified form of fiqh, along the lines of the Ottoman Mecelle, others begrudgingly defended the change. To their mind, fiqh was an anachronistic body of rules and could never serve as the basis of a legal system for a modern state.

Not surprisingly, as Sanhūrī pursued dual doctorates in law and political science he began to weigh in on these issues. For his first doctorate, he wrote a thesis focusing on the common law that was informed by comparative and socio-legal theory: “Les restrictions contractuelle à la liberté individuelle de travail dans la jurisprudence anglaise.” For his second he wrote a thesis informed by a similar theoretical background, which turned its attention to contemporary Muslim debates about the caliphate and Islamic law. In Le Califat: Son évolution vers une société des nations orientale, he argued that the caliphate had immense value as a symbol of the unity of Muslims and the importance of governmental respect for the Sharīʿah. He insisted, however, that a modern “caliphate” would be different from the classical institution. At least for the intermediate term, he argued, it would not exercise direct executive and legislative authority within majority Muslim nation states. The caliphate, as he saw it, would function as an analogue of the League of Nations, albeit one specifically for Muslim nations. More influentially, he reimagined the Sharīʿah as a series of principles that could be uncovered through an inductive study of the fiqh literature and which could be used to help develop codes that were simultaneously Islamic and modern.

Employing the tools of legal sociology and comparative jurisprudence, he argued that for Muslims the fiqh literature should be understood to represent the temporal application of essential and unchanging Islamic principles. These principles represented the core of the Sharīʿah. In the modern era Muslim nation states should promote scholarship that would uncover these principles and should develop codes of law that realized them. In so doing, he argued that the Sharīʿah could be reinvigorated and could inform the laws of modern Muslim countries.

In 1926 Sanhūrī returned to Egypt and joined the civil law faculty at Cairo University law school, where he eventually became dean. During the 1930s he proposed that the Egyptian civil code be redrafted in a way that would incorporate the principles of the Sharīʿah as he understood them. In 1935 political difficulties led him to depart for one year to Iraq where he was asked to begin preparatory studies for a new Iraqi civil code. In 1936 he returned to Egypt. Over the next decade, he served in various cabinet posts and during the 1940s he served as lead draftsman for the 1948 Egyptian Civil Code, which is still in force.

In drafting the Egyptian Civil Code, Sanhūrī tried to realize his dream of developing codes of law that were simultaneously Islamic and modern. After a comparative survey of fiqh rules and European rules, he and his team selected rules that they believed would be most appropriate for the modern country and its citizens. In doing so, he recognized that Egypt had developed a vibrant modern economy that could be harmed by unnecessarily dramatic and disruptive legal changes. He also wanted to promote consistency between the laws of Egypt and those of other civil law countries—a quality that would facilitate Egypt’s integration into the international economy. Nevertheless, the codes sometimes departed from European and colonial precedents and instead adopted rules that had been developed in the fiqh tradition. More important, irrespective of whether the rule had initially been developed in European law or in fiqh, he tried to ensure that the rules adopted were consistent with the timeless essential principles of the Sharīʿah that could be induced from the fiqh literature. He also included a gap-filling provision that instructed judges on issues where the code was silent to develop new rules, taking into consideration the techniques that had informed the drafting of the code.

When presented to the Egyptian parliament in 1948, the new code proved controversial, with some secularists arguing that it was too Islamic and many Islamists complaining that it was too secular. After spirited debate it was adopted. Shortly thereafter Sanhūrī led the team that drafted the 1951 Iraqi Civil Code. Because Sanhūrī’s method required legislators to take into account not just the timeless principles of the Sharīʿah but also the specific history and needs of a country, the Iraqi code differed in some respects from the Egyptian. It included a higher proportion of fiqh-based rules and its gap-filling provision more explicitly instructed judges to consider fiqh when creating rules for situations not covered by the code.

Sanhūrī was appointed president of the Egyptian Council of State in 1949. During the military coup of 1952, he supported the Free Officers, and, indeed, provided a legal opinion stating that the Revolutionary Command Council ’s (RCC) exercise of power was constitutional. Quickly falling afoul of the new regime, however, in 1954 he was removed from the Council of State and deprived of his political rights. Thereafter, he devoted his life to teaching, research, and writing and advising other Arab countries on legal and constitutional reform. Among his academic works published in Egypt were a major commentary on the Egyptian Civil Code, and a multi-volume work of comparative fiqh and, more broadly of comparative law, entitled Maṣādir al-Ḥaqq.

During the 1950s and 1960s numerous Arab countries invited him to advise on legal and constitutional reform. Furthermore, some countries that did not formally retain him as an advisor adopted codes modeled on the ones he had drafted for Egypt and Iraq. Among the countries that have enacted “Sanhūrī Codes” are Syria, Libya, Jordan, Algeria, a number of the Gulf countries, and Afghanistan. His thinking about codification also influenced Islamist thinkers. As Baber Johansen has pointed out, many Islamists who initially criticized his codes as too Western nevertheless came to embrace his broader approach to codification. They too have tried to induce general principles from the fiqh tradition and tried to develop codes that incorporate laws that will serve the economic and social interests of a modern state without violating those general principles. They differ only in their conclusions about what laws can be induced from the works of fiqh and about whether, with respect to certain provisions of the code, Sanhūrī was correct to conclude that legal rules developed in Europe were more appropriate for modern conditions than traditional fiqh rules (see Johansen, 1999, p. 59).

Bibliography

Works of ʿAbd al-Razzāq Sanhūrī

  • “Wujūb tanqīḥ al-qānūn al-madanī” [The Necessity for Revision of the Civil Code]. Majallat al-Qānūn wa-al-Iqtiṣād 6, no. 1 (January 1936): 3–144.
  • “ʿAlā ayyi asas yakūnu tanqīḥ al-qānūn al-madanī al-Misrī?” [On What Basis Will the Egyptian Civil Code Be Revised?]. Al-kitāb al-dhahabī lil-maḥākim al-ahlīyah 2 (1938): 106–143.
  • Maṣadir al-haqq fī-al-fiqh al-islāmī [The Sources of Truth/Justice in Islamic Fiqh]. Cairo, 1954–1959.
  • “Al-qānūn al-madanī al-ʿArabī” [The Arab Civil Code]. Majallat al-Qadāʿ (Baghdad) 20, nos. 1–2 (1962): 7–33.
  • ʿAbd al-Razzāq al-Sanhūrī min khilāl awrāqihi al-shakhsīyah [ʿAbd al-Razzāq al-Sanhūrī through His Journals]. Edited by Nādiyah al-Sanhūrī and Tawfīq al-Shāwī. Cairo, 1988. Collection of Sanhūrī ’s personal journals and his views on various issues, arranged chronologically.

Secondary Works

  • Arabi, Oussama. “Al-Sanhūrī ’s Reconstruction of the Islamic Law of Contract Defects.” Journal of Islamic Studies 6, no. 2 (1995): 153–172.
  • Arabi, Oussama. “Intention and Motive in Sanhūrī ’s Fiqh: Cause as Ulterior Motive.” Islamic Law and Society 4, no. 2 (1997): 200–223.
  • Bechor, Guy. The Sanhūrī Code, and the Emergence of Modern Arab Civil Law (1932 to 1949). Leiden, Netherlands, and Boston: Brill, 2007.
  • Hill, Enid. “Al-Sanhūrī and Islamic Law: The Place and Significance of Islamic Law in the Life and Work of ʿAbd al-Razzāq al-Sanhūrī, Egyptian Jurist and Scholar, 1895–1971,” parts 1 and 2. Arab Law Quarterly 3 (1988).
  • Hill, Enid. Al-Sanhūrī and Islamic Law. Cairo: American University Press in Cairo, 1987. The most thorough study to date in English on al-Sanhūrī ’s life and work, with an extensive bibliography of his works.
  • Hill, Enid. “Islamic Law as a Source for the Development of a Comparative Jurisprudence, the ‘ Modern Science of Codification ’: Theory and Practice in the Life and Work of ʿAbd al-Razzāq Aḥmad al-Sanhūrī (1895–1971).” In Islamic Law: Social and Historical Contexts, edited by Aziz al-Azmeh, pp. 146–197. London and New York: Routledge, 1988. Insightful analysis of al-Sanhūrī ’s contribution to codification and legal reform.
  • Johansen, Baber. Contingency in a Sacred Law. Leiden, Netherlands, and Boston: Brill, 1999. See pp. 57–59.
  • Khadduri, Majid. Political Trends in the Arab World: The Role of Ideas and Ideals in Politics. Baltimore and London: The Johns Hopkins Press, 1970. See pp. 239–244.
  • Shalakany, Amr. “Between Identity and Redistribution: Sanhuri, Genealogy and the Will to Islamise.” Islamic Law and Society 8, no. 2 (2001): 201–244.
  • “The Origins of Comparative Law in the Arab World, or how sometimes losing your Asalah can be Good for you.” In Rethinking the Masters of Comparative Law, edited by Annelise Riles. Oxford: Hart Publishing: 2001.
  • Wood, Leonard. “Reception of European Law, Origins of Islamic Legal Revivalism, and Foundations of Transformations in Islamic Legal Thought in Egypt, 1875–1960.” Ph.D. diss., Harvard University, 2011.
  • Ziadeh, Farhat. Lawyers, the Rule of Law, and Liberalism in Modern Egypt. Stanford, Calif.: Hoover Institution on War, Revolution, and Peace, Stanford University, 1968. See pp. 137–147.
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