The GCC Legal System and Islamic Law, a Marriage Between Past and Present

In the West the words “Islamic Law” or “Shariah Law” can at times spark fear, derision and suspicion. However, for centuries, the Islamic legal system has influenced both the Middle East and the world at large in a number of subtle, yet significant ways. In the current GCC landscape, the influence of Shariah law remains. So what is this concept of Shariah? In this article I explore the development of Islamic law and its marriage with the civil law system in place in most Gulf Cooperation Council (GCC)[1] countries. Beyond the fear or mystery the words “Islamic Law” and “Middle East” may provoke in some circles in the West, there is a marriage and continuity among many jurisdictions taking place, involving Islamic law and modernity. Business people and practitioners working in the modern GCC look to gain a broader cultural and practical understanding of the current context and legal system by embracing this.

The Early Development of Islamic Law in the Middle East

The beginning of Islamic Law in the Middle East can be said to date back to the revelation of Islam to the Prophet Muhammad (Peace Be Upon Him/PBUH), in Mecca (now in modern day Saudi Arabia), in 610 AD. Without having any formal name as such, the revelations of the Quran, the recitation of “Allah’s (God) speech” in Arabic and the holy book in Islam, as well as the behaviors and actions of the Prophet (PBUH) (“Sunnah”) shaped its foundation.[2] The word “Shariah” was only given to this body of information, years after the Prophet’s (PBUH) death, and generally means or signifies “the way,” symbolizing the myriad concepts, interpretations and opinions which have developed from the influence of Islam.[3] These precepts and concepts generally fit within the structure of the five major schools of Islam, being the Hanafi, Maliki, Shafi, Hanbali and Shafi “Madhabs” (schools of Islamic law).[4]

Among the “Sunni” Muslims (abbreviation of the word “Sunnah” meaning, traditions and way of the Prophet PBUH), there are four major Madhabs, being the Hanafi, Shafi’I, Maliki and Hanbali Schools of Legal Thought. These Madhabs are not religious sects in any way, but simply represent a tradition of interpreting Islamic law, revolving around the same central principles and pillars of Islam. The Shia school of Islamic Law is often referred to as the Jafari’I School.

During the early days of the Islamic empire, between the mid 8th to the late 9th century AD, four eminent Muslim scholars propounded these various methods and means of deriving law within the framework of Islam. Generally, a judge would rely on the Quran and Sunnah of the Prophet (PBUH), and if no solution was found within them, they would then rely on their own derivative reasoning, judgment or customary practice. The approaches of the four scholars after which the four schools are named, were so prominent and comprehensive, that it allowed for their subsequent students and generations who came after, to form concrete methodologies for deriving law on the basis of their work.[5]

Despite these varying approaches, the different schools of law never had a divisive impact in Islamic society, and all of these systems co-existed side by side, in unity.[7] Generally, the application of Islamic law is not a body of rigid rules, but the application of principles through analogy, consensus building and independent reasoning, based on the foundations and moral code found in the Quran and Sunna of the Prophet (PBUH). [8]

The Arab people, united by a common faith, spread the message of Islam across neighboring regions and eventually into Europe. This spurned international commercial activity, commerce and the exchange of ideas and gave rise to the Golden age of Islamic Commerce, from the 9th to the 13th century AD.[9]

Through this commercial development, the people of the Middle East and Islamic Empire were eventually credited with the development of earliest alphabets and even law codes, established via Shariah law. This extended the influence of Shariah principles, indirectly, into the development of science and technology in Europe (Andalusia), and Asia in the Middle Ages.[10] In addition, the Silk route was naturally interwoven into the trade routes existing in the Middle East, which further fueled the development of commerce and an exchange of ideas. [11]

European Influence on Middle East Legal Systems

From the 16th to 19th Century, the Europeans considered the Islamic World as an increasingly open and diverse market for trading opportunities.

With the influence of European culture in trade, increasingly towards the end of the 19th century, and then the beginning of the 20th century, European principles began to become integrated into traditionally Islamic legal systems.[12] An example of the extreme towards this tendency is that of the revolution in Turkey led by Kemal Ataturk, to secularize modern day Turkey.

In addition, the development of the Egyptian Civil Law system (influenced by the French), still influential in the GCC, is another example of the integration of Islamic legal concepts, and European influence on the legal structure of many Muslim countries. There was therefore an integration, rather than a clash of cultures, during the times in history when East interacted with West in terms of trade. Many Islamic scholars and individuals welcomed this integration, for example, Muhammad Abduh, the grand Mufti (lead judge/scholar) of the famous Al-Azhar University in Egypt in the late 1900s, which still exists today, and which is one of the most prominent Islamic legal seminaries in the world, proclaimed: “I went to the West and saw Islam, but no Muslims; I got back to the East and saw Muslims, but not Islam.”[13]

Such an approach to modernity was actually in accordance with the defining principles of the Shariah system based on “Madhab” or different schools of Islamic thought. The idea of “Madhab” implied the gathering of multiple people of different positions, who would gather to deliberate. This approach would have particular application when areas of the Shariah as formulated at the current time seemed inadequate or incomplete with respect to tackling a particular modern issue, such as the expansion of trade or air transportation, and the arising commercial requirements of such phenomena.

The “Ulama” gathered in many cities of the modern Middle East, to devise the Islamic response to modernization, and these ideas subsequently developed the influence of Islamic law on the modern legal systems in the Gulf as well. This approach left broad width for the application and adaptation of civil law principles in the Modern ME. [14] Muslim States have continued to develop and adapt their legal systems and laws, in accordance with the Islamic Jurisprudence that “The rule changes as the times change.”[15] This holds true for the GCC as well, as can be seen from the array of different laws past and amended over the last 50 years.[16]

Law, The GCC, Industrialization and Trade in the 20th and 21st Centuries

At the current time, the legal system in most GCC systems is a mix of civil law for commercial, civil and criminal disputes (based on an enacted code), while Islamic law still governs personal status cases for Muslims. In the UAE, there is also a common law jurisdiction, in the Dubai International Financial Center, making it a one of a kind region with three different legal systems operating in the country.

Given the vast history and plurality of the Islamic legal system described above, it is not surprising that the GCC legal systems have therefore evolved to reach their modern form. Given the technological and industrial changes in the region, as a result of the oil boom and advent of international trade, this was perhaps a natural and predictable course of the evolution of the governing legal system, in the modern Middle East.

In almost all GCC countries, the Shariah courts shall determine matters related to family and personal status, such as divorce, property distribution and child custody, for Muslims. However, commercial matters are usually governed by the commercial code in place in the country. Often, when new matters arise in the commercial legal system, they are resolved by modelling international principles and treaties, involving organizations such as the WTO and other countries. Many laws passed may also mirror those in effect in foreign jurisdictions as well, such as the United Kingdom or the US. For example, both Bahrain and the UAE have recently either passed or announced the possibility of new commercial bankruptcy laws.

Concluding Remarks

The Legal Landscape in the GCC may be foreign and unconventional in comparison to what a Western mind may be used to, however, it is the amalgamation of years of legal practice in the Islamic Shariah Law and traditional culture of the Middle East, along with international commercial principles and practices. It is essentially a marriage between the past and future, East and West, in that it links concepts and traditions routed in tradition, to modern commercial requirements in the Middle East, arising from the demands brought on by International Trade and the modern era.

References:

[1] The GCC Countries comprise of the UAE, Oman, Qatar, Bahrain, Saudi Arabia and Kuwait.

[2] Khalid Malik, Universal Sects and Schools of Islam and Their Adherents Among the East African Muslims, Kingdom of Bahrain Ministry of Publication and Press ISBN # 978–99901–10–50–0, 2008.

[3] Id.

[4] id.

[5] id. At 21

[6] Id. At 22

[7] id. At 21.

[8] John H Donboli, Farnaz Kashafi, Doing Business in the Middle East: A Primer for US Companies, Cornell International Law Journal, Issue 2, Article 3, 2005, at 419.