Commentary :: The Dissolution of Sharīʿa in the 1965 Moroccan Court Unification Law

During a time when there are global questions about stable Muslim-majority states that have combined Islamic law with state law, SHARIAsource editor Ari Schriber convincingly demonstrates that Morocco’s 1965 Court Unification Law deserves more attention, though not for the reasons one may initially suppose. In asserting independence then, Moroccan leaders paved the way for a stable regime that featured Islamic law as a part of national identity, independence, and statehood under a constitutional monarchy now. Before independence, Morocco’s state were established by French colonial powers and assumed French judicial traditions. Religious courts remained independent under qāḍīs (judges), who continued to provide rulings based in Islamic law. After independence, however, “the [Moroccan] government sought to complete a series of legal codes reasserting Moroccan national sovereignty … subsum[ing] religious courts into the national system.” Although the Moroccan Constitution declared Islam the religion of the state, the way the King went about integrating Islamic law into that new administrative state “reduc[ed] sharīʿa to statutory legislation” and promoted Moroccan independence and nationalism. The nationalist bent was evident in the Court Unification Law itself. It allowed only Moroccans to be eligible for judgeships and promoted an increasingly “Arabicized” system. In speeches accompanying the passage of the Laws, King Hassan II asserted an Islamic law basis for these changes, arguing that such provisions were consistent with the preservation of Islamic legal principles. But upon closer inspection, says Schriber, “the ensuing series of legislation clearly paved the way for a bold assertion of secular Moroccan state institutions.”

In 1965, the Moroccan government legislated the unification of its main court systems into a single hierarchical structure. In doing so, the government sought to complete a series of legal codes reasserting Moroccan national sovereignty throughout the decade following its independence. However, this Decree has received very little scholarly attention, particularly relative to its impact on the adjudication of  religious-based statute.  In the name of unification, the Moroccan Court Unification Law’s stipulations abolished French judges and subsumed religious courts into the national system. In doing so, the Unification Law deployed nationalist rhetoric as a pretext for ascertaining full authority of religious jurisprudence in Moroccan law. This post argues that this served as an end point in the gradual process of reducing official “sharīʿa” to state-legislated and state-adjudicated statute.

Background: Asserting Legal Nationalization

At the moment of Moroccan independence in 1956, the government decided to maintain the colonial judicial structure “while bringing about adjustments deemed necessary by the proclamation of independence.”[1] Thereafter, the government issued a series of laws intended to articulate distinctly Moroccan law and transcend its colonial forms. This first included the formalities of unifying the French and Spanish colonial territories (plus Tangier) along with the abolition of the customary (ʿurfī) criminal section of the High Sharifian Court.[2] The independent state then proceeded to promulgate its first major code, the 1957 Personal Status Code (Mudawwana). This was a set of family law statutes ostensibly based on norms of Islamic jurisprudential norms (aḥkām al-fiqh).[3] Under its auspices, sharīʿa judges (qāḍīs) presided over personal status and inheritance cases in special sharīʿa courts.[4] Article 3 of the 1958 The Code of Moroccan Nationality further declared all non-Jewish Moroccans to be Muslim and thus subject to the Mudawwana.[5]

The 1962 Moroccan Constitution (Morocco’s first constitution) mentioned religion only briefly.[6] The preamble declared Morocco to be an “Islamic state,” and Article 6 asserts Islam as religion of the state.[7] These statements indicate a move toward “constitutional Islamization,” [8] yet give no specific parameters for what the “Islamic state” entails. As such, the government successfully inaugurated Western-style codes while keeping the statute formally based on Islamic norms confined to the Mudawwana.

In spite of this legislation, the Ministry of Justice believed that “the system continued to be blemished by three flaws: the various types of courts, foreign judges, and the use of foreign languages (French and Spanish).”[9] Indeed, at the moment of independence, Morocco suffered from a dearth of properly trained Moroccan civil lawyers. As a result, over 100 French magistrates remained in Moroccan courts from 1956-1965.[10] This facilitated the transition of the courts, yet it stood as an enduring presence of French authority in Morocco. The use of the French language in court proceedings and judgments also persisted largely because of this phenomenon.

In light of these issues, several parliamentarians drafted legislation aimed at a broader unification of the Moroccan court system. The stated goals of such reforms were “Arabization (taʿrīb), unification (tawḥīd), and Moroccanization (maghribat) of the judiciary.”[11] In June 1964, both chambers of Parliament voted to implement new measures for unifying the judiciary, and King Hassan II’s approval followed soon after.[12]

The Court Unification Law

On January 26, 1965, the Moroccan government officially issued the eight articles comprising the Court Unification Law, which broadly aimed to unify the Moroccan court system. Article 1 makes the general declaration that all Moroccan courts were unified, with the exception of military tribunals and the High Court of Justice.[13] Article 2 then spells out the four levels of the unified court system. So-called Sadad Courts comprised the courts of first instance, with regional and appellate courts in place for second instance. Under the law, the Supreme Court remained the highest court, as it had been since its creation in 1957.

Article 3 explicates the status of religious courts in the Law. Quite simply, matters of sharīʿa and Jewish law became the domain of the Sadad Courts for first instance, and the Regional Courts adjudicated them in the second instance. This arrangement effectively meant the end of special religious courts to adjudicate religious-based statutes.

Articles 4 and 5 project the nationalist vision with which the government promulgated this law. Article 4 stipulates that only Moroccan nationals may become judges, and Article 5 mandates the exclusive use of Arabic language in court proceedings. Both articles help assert Moroccan sovereignty by truncating the lingering French influence in the court system.

Article 6 charges the Minister of Justice with enforcing the law, and Article 7 refers certain civil laws to Common Law Courts (Sadad and Regional Courts). Finally, Article 8 succinctly declares the nullification of any text contradicting the new law.[14]

The articles of the code appear as simple and brief administrative adjustments to the justice system. However, their impact on the adjudication of Morocco’s religious statute and the notion of sharīʿa itself merits further explication.

Analysis: Completing the “Demolition” of Sharīʿa?

In one sense, the Unification Law galvanized Morocco’s decade-long pivot away from the colonial legal legacy and toward independent Moroccan identity. This pivot is apparent in the institutionalization of judicial unification and hierarchy as well as the requirement of Arabic language and Moroccan judges.

Ironically, however, this pivot also entailed the dissolution of the sharīʿa courts run by the qāḍīs. After all, it was the Protectorate regime that formally institutionalized these courts in its reorganization of the Moroccan legal system.[15] The exact degree to which the qāḍīs still retained religious jurisprudential authority following the 1957 Mudawwana remains ambiguous.[16] The Mudawwana stipulated multiple times that for any case its statutes cannot address, qāḍīs may refer to “the preponderant, well-known, or standard practice in Mālikī law.”[17] This stipulation implies that post-1957 qāḍīs at least theoretically retained some degree of latitude to apply Islamic law.

In the wake of the Unification Law, King Hassan II indeed gave significant credence to the status and responsibilities of Moroccan qāḍīs.  He stated that, “the men of the judiciary family soon will plunge into a critical battle for their country in several fields in the system of law regulating social interactions (muʿāmalāt).”[18] The King exemplified this burden by assuring his confidence in the judges’ “faith in the principles of fundamental law to unify the courts and Arabize (taʿrīb) them.”[19]

In praising the judges, however, King Hassan II upheld the primary functions of the judiciary as Arabizers and unifiers.[20] At no point did King Hassan II mention the role of Islam or Islamic law alongside Arabic and the Moroccan judges. Implementing the Arabic language and Moroccanizing the judicial vocation thereby marginalized the disappearance of religious courts.

This state-led process of judicial reform raises questions about the effect of court reorganization on the notion of sharīʿa itself in Morocco. From a broader perspective, Wael Hallaq has argued that codifying sharīʿa leads to the “infrastructural demolition of the traditional legal system.”[21] Hallaq’s implication is that the state’s appropriation of religious law deprives sharīʿa of its traditional epistemology and function as jurists’ law.[22] This means that sharīʿa becomes separated from the jurists’ long-held sources and methodologies of deriving norms (i.e., uṣul al-fiqh) in favor of state legislation. As legal historian Aharon Layish puts it, “statutes… are first and foremost legislative acts of sovereign parliaments and hence cannot be assessed as a development within the sharīʿa.”[23]

The prevalence of political and social pressures on religious judges throughout Islamic history casts doubt on the absolute soundness of Hallaq’s claim. Cases like Morocco further demonstrate the monumental shifts engendered by colonial reforms before national codifications. Nevertheless, Hallaq’s point becomes quite apt when confining sharīʿa to state institutions appears the goal, not merely the byproduct, of judicial reform. This deliberate confinement seems highly probable in Morocco, as the Unification Law removed the particularities of religious adjudication by subsuming it into a broader national system. Indeed, Moroccan law manifested “sharīʿa” as a well-controlled system of secular legislators and secular judges rather than a law upheld by Islamic jurists.

The 1965 Unification demonstrates the state’s determination to standardize all judicial practices in spite of its claim that sharīʿa-based law existed in the 1957 Mudawwana. The promulgation of the Mudawwana likely did not abruptly transform sharīʿa into a mere symbolic memory. Still, the ensuing series of legislation clearly paved the way for a bold assertion of secular Moroccan state institutions. The 1965 Unification Law thus represents the capstone of the Moroccan state’s gradual and systematic reduction of sharīʿa’s functional status in the Moroccan judiciary.   

[1] Minister of Justice ʿAbd al-Karim Benjelloun, quoted in : Jean Sauvel, La réforme de la justice au Maroc, Annuaire de l’Afrique du Nord 94 (1965).

[2] Nashāṭ wizārat al-ʿadl, 72 Majallat al-qaḍāʾ wa-l-qānūn 3 (1964).   

[3] [The Mudawwana: Law of Personal Status] 2354 al-Jarīda al-Rasmiyya 2634 (Dec. 6, 1957).

[4] Michel Bourely, Droit Public Marocain Vol. 1, 339 (1965). The

[5] [Dahir 1-58-250, Code of Moroccan Nationality] 2394 al-Jarīda al-Rasmiyya 1492 (Sept. 12, 1958).

[6] The other major legislation of this period, the 1962 Moroccan Penal Code, contained a series of articles that criminalized “shaking the faith of a Muslim” and publicly breaking the Ramadan fast. However, the Penal Code did not claim to take religious law as its source as the Mudawwana did. [1962 Moroccan Penal Code] 2640-bis al-Jarīda al-Rasmiyya (5 July 1965).

[7] [1962 Moroccan Constitution] 2616-bis al-Jarīda al-Rasmiyya 2993-2994 (Dec. 19, 1962).

[8] See: Dawood I. Ahmed and Tom Ginsburg, Constitutional Islamization and Human Rights: The Surprising Origin and Spread of Islamic Supremacy in Constitutions, 54 Virginia Journal of International Law 615, 621 (2014).

[9] Nashāṭ, supra at 4.

[10] Bourely, supra at 96.

[11] Nashāṭ, supra at 4.

[12] Id. at 4. The Law also became one of the few post-Constitution laws that came into existence via Parliamentary and royal approval, due to Hassan II’s suspension of the Constitution in 1965. Sauvel, supra at 107.

[13] The 1962 Constitution launched the High Court of Justice as a special court for government officials accused of infractions.

[14] [Law 3.64 of January 26, 1965 Pertaining to Court Unification] 2727 al-Jarīda al-Rasmiyya 208-209 (Feb. 31, 1965).

[15] Sharīʿa courts themselves obviously existed well before the Protectorate. However, the French-led reorganization created a structure that defined their jurisdiction alongside non-sharīʿa court systems.

[16] Undertaking such a study would require extensive study of sharīʿa court cases in the indicated span of years.

[17] [The Mudawwana: Law of Personal Status] 2354 al-Jarīda al-Rasmiyya 2638 (Dec. 6, 1957).

[18] King Hassan II, Khitāb ṣāḥib al-jalāla amām aʿḍāʾ al-lajān al-mukallafa bi-taʿrīb al-qūwānīn (Speech of His Majesty before the Members of the Committees Tasked with Arabicizing the Laws), 10 Inbiʿāth Umma (1965).

[19] Id.

[20] Sauvel calls the latter task “Moroccanization” (La marocanisation). Sauvel, supra at 101.

[21] Wael B Hallaq, Can the Shari’a Be Restored?, 23 Islamic Law and the Challenges of Modernity (Yvonne Yazbeck Haddad and Barbara Freyer Stowasser, eds., 2004).

[22] Joseph Schacht, Introduction to Islamic Law 209 (1964).

[23] Aharon Layish, The Transformation of the Sharīʿa from Jurists’ Law to Statutory Law in the Contemporary Muslim World, 44 Die Welt des Islams 92 (2004).