Zooming in on the modern

3.1 Conflicting legal imperatives in modern Islamic law

In his Remedies for Breach of Contract in Islamic and Iranian Law,¹⁶ S. H. Amin points to an ar­gument by Shaykh Murteza Ansari (1781—1864) on the conditions that allow rescission of a contract.

There is nothing particularly Iranian or Ja fari about the idea of considering ‘undue burden’ grounds for revoking a commitment or rescinding a contractual obligation. Let us give an example from medieval Islamic law and one from modern Egyptian law to make this case. In medieval Sunni law, iqala (or rescinding contractual commitments) was recommended to party A in a contract in which party B has what we call buyer’s remorse. Medieval Sunni jurists have also considered the extent to which iqala (or rescinding contractual commitments) may involve unacceptable modifications to the initial contract. For example, a standard permissible loan or sale may be modified into a usurious transaction, once a rescission is conducted improperly.¹⁷

Article 147/2 in Egypt’s Civil Code states that,

should exceptional, unforeseeable conditions of a general character arise, and should their rise lead to a condition where the implementation of a contractual obligation be, while not impossible, so burdensome for the party carrying a debt, leading to an inev­itably and unusually large loss, the judge, taking the circumstances of the case and the interests of both parties in the case into account, may resize or restate the obligation to a reasonable threshold...

Now we go back to modern Iran. Modern Iranian jurists took the crisis of conflicting legal imperatives and turned the crisis into an opportunity. They applied the conflict of legal imperatives in a creative manner to solve the problem of the prohibition of usury, which they inherited from medieval Islamic law, which seem to be un-implementable in modern financial contexts.

Here we witness a broad application of the idea that conflicting considerations cancel one another out. The result is a restatement of the legal obligations of those who are parties to a contract leading to a financial obligation. Rescission of a contract and a contractual obligation is caused by the presence of ‘undue burden’, effectively overpowering the initial contractual commitment. Beyond this rescission, a modern Iranian lawyer, jurist and judge all aim at a fairer or more just formula for contracts involving monetary obligations that are affected by money’s constant loss of value.

Modern Iranian lawyers have tried to understand why dealing in usury appeared to be so unfair in medieval markets, while prohibiting usury in modern financial markets is what appears to be unfair. The point here is the conflict between two considerations, which also appear to be of equal power. The first consideration is that, in a medieval loan or inadvertent debt emanating from medieval market dealings, the lender is guaranteed a profit, while the borrower is not. In modern market dealings, money simply loses value over time. Unless it is invested, its value decreases. Keeping the value of a debt at the same level as its initial amount (at the time of its transfer from lender to borrower) is, in effect, committing a degree of injus­tice toward the lender. Modern Iranian lawyers thought that the discretion given to a judge to implement ‘judicial remedies’ to correct an imbalance in a contract allows for a normal­ization of reasonable interest on loans. They thus state that a contract establishing an unfair return of the same monetary value creates a legal imperative in competition with the legal imperative of avoiding unjust commitments and undue burdens in contractual obligations.

3.2 Superior argument in modern Egyptian civil law

The father of modern civil law in Egypt, 'Abd al-Razzaq al-Sanhuri (1895—1971), famously enumerated four sources of modern (civil) Egyptian law, in this specific order: 1) legislation; 2) custom and tradition; 3) the Islamic Shari 'ah; and 4) natural law and the principles of eq­uity. This is according to the language of article 1/2 (article one, paragraph two) in Egypt’s 1949 civil code.

Let us step back and explain the framework in which we are operating here. In modern Egyptian jurisprudence, legislation by the people’s representative (The People’s Assembly or House of Representatives) is called a foundational source of law of general reach (al-masdar al-Asld al-'dm). Religion, Islamic law, has been historically considered a foundational source of restricted reach (al-masdar al-asld al-khds) more potent in family and probate matters than in purely civil law matters.¹⁹ Religion, now broadly incorporating both Islamic law and other Egyptian religious laws, has been (i.e. remains) the main source of the laws governing family and charitable endowments. But with the advent of the 1949 civil code, it is also acknowl­edged as a complementary source of the law (al-masdar takmdld) applying in all civil matters.

By the same code, social customs and standards are counted as another complementary source of the law (al-masdar takmili —) filling in gaps created by the absence of direct legal rules gov­erning a case.²⁰ The sources’ theoretically determined reach does not preclude the potential of being equal-cum-conflicting in certain matters. We must now note that the fourth of the four sources of the law enumerated above, namely natural law and the principles of equity, is seen as a source of interpretation for legal codes, and it means to provide a reference to the objectives of the law or its basic rationale or essence (jawhar al-qanun) rather than being a separate source for it.²¹ Conflicting arguments of equal power will simply arise from friction among the first three sources of the law: legislation, religion and custom.

Article 917 of Egypt’s Civil Code, which we have considered as an example of how con­flict of laws may be resolved by the principle of temporal jurisdiction (later laws abrogate early laws), gives us an example here. The article states that,

were a person to transfer his/her property to one of his/her inheritors but keep physical control of the property and draw benefits from it for the remainder of his/her life, the property transfer is presumed to fall under the laws of the will — as long as no evidence militates against this presumption.²²

Medieval Sunni Islamic law would consider this a case of undelivered gift, which, if admin­istered while the owner is in full possession of his health and mental capacity, is valid and hence excludes the purported property from the inheritance. Article 917 makes the transfer essentially invalid. An un-delivered gift is a non-existing gift.

Conflicting legal imperatives involve medieval Islamic law’s role in modern laws in Egypt in an array of issues. The marital contract, for example, while part of the category of contract, is governed by special principles of Islamic legal provenance. Challenges to these principles come in different forms and measures. Repudiating the marriage of a Muslim female to a male, whose belonging to the Islamic faith is in question, led to well-publicized controversy in the 1990s (known as an apostasy case, mistakenly because Egyptian law does not consider apostasy to be an offence). In these matters, the secular commitments of the Egyptian judi­ciary are tested once and again.

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