Conclusion
I have shown in this paper that the role of Sharia in Libya's lawmaking has gradually increased. From being confined to personal status matters under the Monarchy's rule, Sharia developed in Gaddafi's era to also regulate other affairs.
Criminal, civil, and commercial laws were either derived from Sharia, or, in most cases, reviewed to become compatible with Sharia. Gaddafi himself had a big impact on the process, and this explains why his Islamisation efforts have been under review since the overthrow of his regime, not by secularists aiming to limit Sharia's role, but rather by Islamists who see these efforts as lacking proper Sharia foundations. Since 2011, those Islamists exerted an immense influence on the consecutive governments, namely, the NTC and GNC, and their lobbying resulted in a wave of Islamisation of laws that even reached laws that were supposed to be Sharia-based, e.g., hudud laws.Admittedly, things have changed, and the Islamists no longer enjoy that considerable dominance over the political scene. In fact, the HoR in the east, which is, according to the UN-sponsored Political Agreement, the only legitimate legislature in the country, could be fairly described as anti-Islamist. Still, it is too early to predict the impact of these developments on the role of Sharia in lawmaking. First, Islamists are still influential in other parts of the country, including the capital. It is in these parts that the Dar el-Efta, despite the HoR's law that abolished it, is still very much alive and active in pushing for more recognition of Sharia in lawmaking. Its efforts even led to including in the Political Agreement a provision on the supremacy of Sharia. Second, even with regard to the area that the HoR actually controls, there are clear indications of the rise of other Islamists, i.e., Salafists. While they appear to be different from those associated with the GNC, they share the same belief in the wider recognition of Sharia.
As I mentioned earlier, Salafists bitterly criticised the latest draft constitution based on conservative interpretations of Sharia that are even stricter than those held by Dar el-Efta.Ideally, any rethinking about the role of Sharia should take into account Libya's own experience. When Sharia-based laws were introduced in the 70s, Libya was among the first countries to do so. The committees that reviewed the existing laws and proposed introducing new ones were composed of experienced Libyan and Arab academics and practitioners of Sharia and law. They performed their task in accordance with criteria that, while assigning a special place to the Maliki School predominant in Libya, were flexible enough to bring about changes fit for modern times. Admittedly, since the late 70s, Gaddafi's influence on the efforts to incorporate Sharia into law became undeniable; still, that was not necessarily bad. Women in particular, as evident in Law 10/1984 on Marriage and Divorce, benefited greatly from such efforts. Besides, many of these efforts could be accommodated if people followed less restrictive interpretations of Sharia than those enshrined in the draft constitution.
Notes
UN General Assembly, Question of the disposal of the former Italian Colonies, 21 November 1949, A/RES/289, available at: http://www.refworld.org/docid/3b00f08c18. html [accessed 10 November 2017]
For example, when discussing the type of majority required for taking decisions in the House of Representatives, a member of the Drafting Committee proposed to opt for two-thirds instead of absolute majority, as Mr Pelt recommended. He stated that he would have agreed with Mr Pelt's recommendation had Libya been ready for a democratic system in the fullest sense, but since it was not, the recommendation would be invalid or even harmful. Another member, however, disagreed with him. He said: “Your comments would have been welcomed had we been drafting our constitution in the way we like and are satisfied with, but we are drafting a constitution that will be presented to the UN that will examine it against what it [UN] deems satisfactory in democratic systems.” In the end, the Committee could not agree, and decided to postpone the decision to another session (Al-jam’ia al-watania al-libiya.
Majmo’at mahadir al-jam'ia al-watania and lajnat al-doustor 1950-1951. Mahdar al-jalsa al-thalitha wa al-'ishrien, [The Libyan National Assembly, the compilation of the reports of the Assembly and the Constitutional Committee 1950-1951, the 23rd Report] 15 September 1951, 194-195). Similarly, defending an article that would allow Parliament to consider as official a foreign language, in addition to Arabic, a member said: “We must not forget that our constitution will be subject to discussion in the UN, and there are countries to whom the interests of the communities living with us are important, and if we decide to not include this article that might affect [negatively] the international public opinion.” (Ibid, the Report of the Constitutional Committee' Session. No. 20, dated 27 August 1951, 186).Ibid., the Report of the 1st Session of the National Assembly, 25 February 1950, 2.
The distinction was introduced in Libya first by the Ottomans and then by the Italians. Personal status affairs are those related to familial relationships such as “marriage, divorce, succession, guardianship, wills and the very important topic of waqfs or religious endowments.” See Qasem (1954, 135). This distinction was inherited from the Italian occupation that preferred to leave the former to the indigenous peoples' law, which happened to be Sharia. See Gazzini (2012, 746-770).
Personal status affairs of non-Muslim Libyans were regulated by their own religious rulings. As to Article 192 of the 1951 Constitution, “the State shall guarantee respect for the systems of personal status of non-Muslims.” See also Qasem (1954, 136) who mentions the existence of the Rabbinical courts.
According to Layish (2005, ix), “Until Qadhdhafi's coup in 1969, no codification of shar'i law pertaining to personal status, succession and waqf had been attempted.” Mada 17, Qanun raqam 29/1962 bi shan Nidam al-Qada (Article 17, Law No. 29/1962 on the Judicial System). The Official Gazette.
Special issue, No. 12, 11 December 1962.In an interview with Mohammed Khaleel al-Qumati, the first Libyan president of the Supreme Court (3 November 1954), he said that one of the reasons behind abolishing the merger of shari' and civil courts was the refusal of shari' judges to join civil circuits, as these circuits decide on cases not according to what Allah has ordered, taqdi bi ghair ma anzal Allah (Al-Muhami 1990, 2).
Article 2 of the Civil Code.
Qara Majlis Qiyadat al-Thawra bi shan Tashkeel Lijan li Muraja'at al-Tahsri'at wa Ta'diluha bi ma yatafiq ma' al-Mabadi al-Asasiya lil al-Sharia al-Islamia (Decree of the Revolutionary Command Council on the Formation of Committees to review and amend Legislation in Accordance with the Basic Principles of Islamic Sharia). 1o February 1972. Official Gazette, No. 6, 241-245.
Decision of the Supreme Court, Civil Appeal No. 3/36, dated 2 December 1990, the Technical Office, No. 25, part 1, 139.
Qanun raqam 51/1976 bi shan isdar Qanun Nidam al-Qada (Law No. 51/1976 on the Issuance of the Judicial System Law). The Official Gazette, issue 45, dated 15 August 1976.
Decision of the Supreme Court, Personal Status. Appeal No. 3/18, dated 30 May 1971, the Technical Office, No. 8, part 1, 87.
Qanun raqam 87/1973 bi shaen Tawheid al-Qada (Law 87/1973 on the Unification of the Judiciary). The Official Gazette, issue 48, 15 December 1973.
Qanun raqam 10/1984 bi shaen al-Ahkam al-Khasa bi al-Zawaj wa al-Talaq wa Atharuhuma (Law No. 10/1984 on Special Provisions concerning Marriage and Divorce and the Effects thereof). The Official Gazette, issue 16, 3 June 1984, 640-664.
Qanun raqam 9/1994 bi shaen ta’deel ba’d ahkam al-Qanun raqam 10/1984 on al-Zawaj wa al-Talaq wa Atharuhuma (Law No. 9/1994 on Amending Some Provisions of Law No. 10/1984 on Marriage and Divorce and the Effects thereof). The Official Gazette, issue 5, 23 March 1994. 122-124.
See “an interview, in Arabic, with Ghaith al-Fakhri about the establishment of the Council of Libya' Scholars.” 2011.
YouTube video, 7:04. Posted by “Almanara Media” on 24 May 2011. https://www.youtube.com/watch?v=AYSLiYG3X1E, last accessed 29 November 2017.See the League's webpage: http://www.libyaolama.org/
Qanun raqam 15/2015 bi shaen inshala Dar e-Efta (Law No. 15/2012 on the Establishment of Dar el-Efta). The Official Gazette, issue 3, year 1, 16 April 2012.
The establishment of Dar el-Efta in this way provoked a bitter criticism from the League of the religious Scholars of Libya (rabitat ulama Libya) (LUL). The LUL criticised the mufti being appointed by the NTC rather than being elected by Sharia scholars, not explicitly stating the non-binding nature offatwas, and giving the mufti the status of the prime minister. See al-Manara (2012).
Qanun raqam 1/2013 bi shan mani' al-Mu'amalat al-Ribauia (Law No. 1/2013 on the Prohibition of Transactions Involving Usury). The Official Gazette, issue 5, year 2, 21 March 2013.
Al-Moutamar al-Watani al-'am, biyan bi jihoud al-moutamar al-watani al-'am fi tahkim al-sharia wa iqrar al-qounin bima la youkhalif ahkamouha (A Statement on the Application of Islamic Sharia and Enacting Laws Compatible with its Provisions). 19 April 2016.
Decision No. 1621/2013.
Several of these laws were published in Arabic in the Official Gazette, issue 5, 17 November 2015. Available online: http://itcadel.gov.ly/wp-content/uploads/pdfs2013/ add05-2015.pdf, last accessed 29 November 2017.
The Political Agreement is available at the website of UNSMIL: https ://unsmil. unmissions.org/sites/default/files/Libyan%20Political%20Agreement%20-%20 AR%20-%20w%20Signatures.pdf, last accessed 29 November 2017.
According to Article 62 of the Political Agreement, “The Presidency Council of the Council of Ministers shall form a committee of specialists to consider laws and decisions issued by relevant entities from August 2014 until the adoption of this agreement, which resulted in legal, financial and administrative commitments to the Libyan state, with the aim of finding suitable solutions.”
To this end, the HoR enacted Law No. 7/2015. See al-Khamisi, Ahmed. 2015. “Al-foaed al-Ribauia fi Sharq Libya, Hall am Azma? (Al-Ribauia Interests in the East of Libya: a
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