by Dan E. Stigall
Dan E. Stigall is a Trial Attorney with the U.S. Department of Justice, Office of International Affairs. He also serves as an Adjunct Professor of International Law at the The Judge Advocate General’s Legal Center and School (U.S. Army). He previously served on active duty in the U.S. Army JAG Corps from 2001-2009. Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice.
Stigall wrote on “ Refugees and Legal Reform in Iraq: The Iraqi Civil Code, International Standards for the Treatment of Displaced Persons and the Art of Attainable Solutions” in Land and Post-Conflict Peacebuilding and provides an update in this guest posting.
Even on something so small as a blog post, it is always a privilege to be able to collaborate with Rhodri Williams, whose work I have been citing and whose friendship I have valued since my time as Captain in the U.S. Army JAG Corps. As an Army officer, I served in Iraq – mostly in Tikrit – during the era of the Coalition Provisional Authority. That assignment gave me my first exposure to the problems associated with displaced persons, housing, and land issues attendant to conflict and post-conflict environments. That assignment also permitted me to work closely with Iraqi jurists and Iraqi civil law, and intensified my interest in Middle Eastern legal systems, comparative law, and the nexus between comparative law and the myriad issues relating to post-conflict reconstruction.
Years after that initial experience in a conflict zone, a wave of social and political upheaval in the Middle East and North Africa has now resulted in new areas where state security governance is lacking and nascent democracies (or crumbling autocracies) find themselves unable to cope with new sources of instability. Libya and Syria, in particular, have been profoundly impacted by this phenomenon, which has come to be known as the Arab Spring. Both Libya and Syria have experienced the collapse of their governments’ key institutions and, in the wake of enormous political upheaval, each country now contains ungoverned spaces which are attracting and incubating a variety of unsavory and destabilizing transnational actors, such as terrorist organizations.
Moreover, as TerraNullius has reported, both Libya and Syria are each now experiencing destabilizing and significant displacement crises. The number of internally displaced persons in Libya at the end of August 2012 was between 65,000 and 80,000, a population composed mostly of minorities who are unwilling or unable to return because of potential reprisals. With regard to Syria, it was estimated that, as of early June 2013, as many as 4.25 million Syrians have been internally displaced and more than 2 million Syrians have fled and are living as refugees in neighboring countries. This has prompted UNHCR to note, “Syria is haemorrhaging women, children and men who cross borders often with little more than the clothes on their backs.”
The acute problems facing Libya and Syria were, in part, the catalyst for my forthcoming article, The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring. My research into Libyan and Syrian civil law systems follows as something of an extension of my work on Iraqi civil law, but was also inspired by a comment in Chibli Mallat’s masterful text on Middle Eastern legal systems in which he notes that:
Civil codes in the Middle East are peculiar in two ways: they have proved more resilient than their public law counterparts, and modern civil codes function as stable institutions offering legal anchors which transcend political changes.
This observation is an important one – especially as it relates to post-Arab Spring countries and countries in turmoil – because of the fact that international actors seeking to create the conditions for peace and stability in the post-conflict environments of Libya and Syria must ultimately support or enable durable legal institutions. Experience has taught that the durability of organic legal institutions is central to the task of restoring order and government functionality in post-conflict states.
Libya and Syria are certainly among the countries with civil codes that have been decidedly long-lasting. The Syrian Civil Code was promulgated by legislative decree No.84 in 1949 – only four years after the Syrian government announced the formation of a national army and became a member of the United Nations. The Libyan Civil Code, in turn, entered into force in 1954, only three years after King Idris al-Sanusi announced the creation of the United Kingdom of Libya. Both civil codes, therefore, date back to the nascence of each country and, quite remarkably, have survived dramatic political changes, armed conflicts, and coups d’état.
The fact of this durability is important as it permits engagement with a set legal framework with which the polity and a class of jurists and legal professionals is familiar. As Ash U. Bali notes, “For new state institutions to be stable and durable, they must be the product of local political bargains commanding sufficient consensus to bolster their perceived legitimacy.” And, as we learned in Iraq, durable solutions to post-conflict legal issues such as the displacement crises being faced by Libya and Syria will require engagement with the domestic civil laws of each country. For these reasons, an essential facet of the institutional rebuilding of these two countries is their respective systems of civil law and the civil codes in which they are organized.
Reports from rebel-held areas within Syria already note the centrality of the Syrian civil code in debates among camps vying for influence. In Libya, likewise, issues over applicable property law are now at the heart of post-revolution legal disputes that threaten to cause greater instability and forestall needed investment. An understanding of the civil law in these jurisdictions is, therefore, critical to informed policy decisions as they relate to proposed legal reforms and endeavors for which civil law is necessarily implicated as well as to better determine how to facilitate durable legal institutions in the aftermath of revolution and/or civil conflict.
My article posits that the Middle Eastern civil codes – and the civil codes of Libya and Syria in particular – have historically proven to be durable for many of the same reasons that portend well for their potential post-revolution viability. This, in part, is due to the historicity of Middle Eastern civil codes and the iconicity of civil codes in general. In addition, the post-revolutionary ethos of the French Civil Code from which many of their core legal principles are derived lends to the durability and post-revolution viability of these codes, as does the natural flexibility of continental civil codes that permit courts to adapt to changing circumstances without the need for extensive legislative reform.
Moreover, and perhaps most importantly, these civil codes are the beneficiaries of the masterful work of Abd al-Razzaq Al-Sanhūrī, who inscribed into his work a sense of fairness and social utility as well as a degree of legal hybridity that have given them an aura of legitimacy by suffusing their continental civil law characteristics with Ottoman and Islamic legal elements.
In that regard, my analysis also shows that the Libyan and Syrian civil codes have been so durable, in part, because they are well-crafted pieces of legislation. The rules and provisions they contain largely align with those prevailing in any civil law country, containing articles governing matters such as ownership, co-ownership, possession, usufruct, etc. and would be familiar to any trained jurist from a European civil law country (or Louisiana).
Of course, as expected, there are differences between the Libyan and Syrian codes and European civil codes – especially with regard to the incorporation of Middle Eastern legal devices, traditional property law mechanisms, and other elements which give each code a degree of uniqueness. But that legal hybridity only serves to enhance the aura of legitimacy of these codes by incorporating such traditional legal institutions with which the citizenry is familiar. Importantly, that legal hyrbidity does not serve to dilute the quality of the codes.
As Ziadeh notes when commenting on modern Middle Eastern civil codes, “One other observation is that the eastern Arab countries we have dealt with are now in possession of excellent civil codes where rights are neatly defined and where various rights to land are clearly spelled out.”
As my article demonstrates, no civil code is perfect and the civil codes of Libya and Syria could certainly be improved in many ways. On that score, the civil codes of both Libya and Syria should be reviewed and revised so that they can meet the demands of the 21st century in the same way as other civil codes throughout the world. A solemn, enlightened discussion should always serve to correct legislation and permit civil codes to evolve.
However, the basic point for international peacebuilders is that, in both countries, workable civil law frameworks are currently in place which can serve as a basis for a strong society guided by fair laws. Reliance on those legal models will serve to facilitate stability and permit political evolution in the wake of revolution and so that – to paraphrase Portalis – these nations which have achieved liberty by arms will know how to preserve and affirm it by laws.
 Ash U. Bali, Justice Under the Occupation: Rule of Law and the Ethics of Nation-Building in Iraq, 30 YALE J. INTL’L L. 431, 436 (2005)