Abd al-Razzāq al-Sanhūrī’s Conception of Modern Islamic International Law versus the Practice of Muslim States

ʿAbd al-Razzāq al-Sanhūrī (1895-1971), Egypt’s most celebrated jurist of the 20thcentury, is most famous for his efforts to create a modern Arab legal system that reflected the fundamental principles of Islamic law while also incorporating the most important developments of modern legal science. The Egyptian Civil Code, for which he was the principal drafter, was the first tangible expression of his efforts at synthetic legal reform. Several other Arab states subsequently adopted different versions of the Sanhūrī Code for their own legal systems, with the result that Sanhūrī can be reasonably described as the founder of the modern Arab civil law system.

Less well-known, perhaps, is his view of international law, and how his efforts at a reformed (and properly Islamic) domestic legal system would exist in a system of international law. To appreciate his understanding of international law, and how various systems of modern Islamic domestic law would exist in an international system, one must consult the second of the two Ph.D. dissertations he wrote at the University of Lyons.[1] Unlike some other Egyptian intellectuals who welcomed the end of the Ottoman Empire as an opportunity for Egypt to assert its own national sovereignty and denied the significance of the caliphate in Islam, Sanhūrī argued for the continued obligatory character of the caliphate as the effective (and not merely symbolic) foundation of an Islamic legal order. Of course, the institution of the caliphate that he envisioned was materially different from the classical description of the institution found in works like al-Māwardī’s Aḥkām Sulṭāniyya (d. 450/1058). The differences between Sanhūrī and Māwardī are not so much legal as they are political: One would search in vain in Māwardī for any evidence that the rules of government that he articulates apply to a particular, historical people. For Sanhūrī, however, the world is made up of different ethnicities and nationalities, each seeking recognition of its own worth. For Māwardī, by contrast, the principal problem of the jurist was to articulate the rules that authorized the establishment of the public order, i.e., what offices constituted the public order, the legal means by which those offices were filled, and the respective jurisdictions of these different offices.

For Sanhūrī, however, the principal problem facing a modern caliphate was how to mediate between local assertions of sovereignty and the universal demands of law. Writing after World War I, Sanhūrī believed that the peaceful progress of eastern (Muslim) peoples was not only threatened by imperialism (which it was), but also by the spectre of both religious obscurantism and nationalist fanaticism. He believed that a modernized system of Islamic law in both the domestic and international arenas could ward off both dangers. In Sanhūrī’s reformulation of the caliphate, it would serve as an international organization of Muslim nation states. The fact that the caliphate is an international organization rather than a supranational state is a recognition of the legitimacy of self-determination of peoples as an organizing principle for the exercise of political power at the local level. At the same time, he believed that law places bounds on what are legitimate exercises of self-determination, thus limiting the power of “the people” to legal expressions. His version of the caliphate was therefore committed to both the sovereignty of the particular peoples that make up the Islamic world (or the “East (mashriq)” as Sanhūrī often referred to it), and the rule of law. Accordingly, admission to the League of Eastern Nations (as he proposed calling the new caliphate) was conditional on two important rule of law commitments. The first was that it would apply a suitably modernized body of Islamic law, and the second was its submission to the mandatory jurisdiction of an international “eastern” court of justice (maḥkamat ʿadl sharqiyya). He also contemplated the mandatory creation of special committees seized with jurisdiction to oversee the condition of religious minorities of member states.

Scholars of Sanhūrī, such as ʿAmr al-Shalakany, have emphasized Sanhūrī’s sympathy for the sociological school of jurisprudence that emphasized the distributive consequences of the law in the face of legal formalists whose indifference to questions of distributive justice seemed to place them in the position of apologists for capitalism. I am not aware of any attempts to place Sanhūrī in the context of debates taking place among post-World War I European legal scholars (especially in Germany) about the nature of sovereignty and its relationship to the rule of law. Clearly, however, Sanhūrī’s position on sovereignty and the rule of law, at least as expressed in 1926, was strongly in favor of an understanding of sovereignty as being constituted by a substantive conception of the rule of law, not merely a formal one in which sovereignty is understood in the Austinian sense of an “uncommanded commander.” Uncovering Sanhūrī’s conception of the rule of law, and the extent to which it was substantive or formal, seems to be a promising area of future scholarship for those interested in the development of modern Arab legal systems.

It seems clear, however, that the prevailing conception of sovereignty in the modern Arab world is that of the Austinian sovereign, an “uncommanded commander” that simultaneously makes the law but is bound to it only in a formal sense such that whenever the applicable positive law is inconvenient, it can simply be changed with the stroke of a pen. Rule of law, accordingly, is conflated with “rule by law” with complete indifference to the content of the law. The notion of sovereignty as the “uncommanded commander” also seems consistent with the idea of sovereignty upheld in the Charter of the Organization of Islamic Cooperation (the “OIC”). Although some have suggested that Sanhūrī’s vision of the caliphate inspired the creation of the OIC, its charter emphasizes, repeatedly, the sovereign independence of its members, and their joint commitment to non-interference in the internal affairs of the members.[2] Most significantly in this regard, membership is not conditioned either on the substantive commitments of the member’s domestic legal system, nor on the member state’s submission to the mandatory jurisdiction of an international Islamic court of justice to adjudicate disputes between the member states. The OIC has adopted a statute that contemplates the creation of an International Islamic Court of Justice, but it has not come into effect after failing to achieve ratification by the required two-thirds majority of the OIC’s members. Given the catastrophic conflicts between Muslim states in recent years, it is tragic that the member states of the OIC have not had the courage to follow Sanhūrī’s suggestion and recognize that the most fundamental commitment of Islamic law is the peaceful resolution of disputes according to law. Excavation and critique of modern conceptions of sovereignty in the Muslim world, therefore, are crucial first steps toward building a more peaceful international order in the Muslim world.



[1] ʻAbd al-Razzāq Aḥmad Sanhūrī, Le Califat, Son Évolution Vers Une Société Des Nations Orientale, Travaux Du Séminaire Oriental d’études Juridiques et Sociales … t. 4 (Paris: P. Geuthner, 1926).

[2] “Charter of the Organization of the Islamic Conference,” accessed September 26, 2019, https://www.oic-oci.org/page/?p_id=53&p_ref=27&lan=en.(See, especially, the Preamble, which mentions promotion of state sovereignty and non-interference in domestic affairs several times, and Chapter 1, Art. 2.2, which recognizes all member states as “sovereign, independent and equal in rights and obligations,” and Art. 2.4, which states that all member states “undertake to respect national sovereignty, independence and territorial integrity of other Member States and shall refrain from interfering in the internal affairs of others).

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