Sharia in the Monarchy era, marginalised
It is fair to say that the role of Sharia under the Monarchy rule was limited. The regime did not recognise it in the constitution, and confined it in non-constitutional law to family matters, as had been the case under the Ottoman and Italian rules.
Admittedly, the Constitution declared Islam “the religion of the state,” but this was understood as a mere declaration of the state identity, and was never taken to attribute to Sharia any role as a standard for legislation. This might come as a surprise given that King Idris was at the same time the Head of the Sanusi Order, a prominent religious movement.The explanation, in my opinion, lies in the circumstances surrounding Libya’s independence. After the end of the Second World War and the Italian Occupation, the major powers could not agree on the immediate future of Libya; whether to grant the former Italian colony its independence or to place it under the trusteeship of another country. They, therefore, decided to refer the matter to the General Assembly of the United Nations (GA) and agreed to accept its recommendation. The GA recommended that Libya be given its independence no later than ι January 1951, and that, prior to that, a constitution shall be determined by the Libyans. To assist them in formulating the constitution, the GA decided to appoint a Commissioner in Libya and a Council to aid and advise him.1 This commissioner, Mr Adriaan Pelt, and his Council played a significant role in writing the constitution. The Constituent Assembly and its Drafting Committee could indeed voice their opinions and change what the Commissioner and his Council would propose. However, being conscious that whatever they would propose would be reviewed by the UN seemed to make them reluctant to propose changes concerning sensitive issues.2 For the same reason, it seems, there was no discussion of any role of Sharia when reviewing Chapter One on the Form of the State.
It was enough to have the symbolic reference to Islam as the religion of the state (Article 5), despite the remark that Grand Mufti, Mohammad abu Alisaad al-Aalim, made in the opening speech of the National Constituent Assembly indicating the need “to enact a strong constitution that contains provisions from the Islamic Sharia, is distanced from racism, and guarantees the freedom of religion.”3There was then no constitutional recognition of any role of Sharia in lawmaking. As a result, it was constitutionally possible to bring in new legislation on any matter regardless of it being Shariacompatible; incompatible legislation could not be challenged for being unconstitutional. However, the fact that the constitution did not recognise Sharia did not result in ignoring it completely in lawmaking and enforcement. Sharia was the sole governing law of personal status affairs of Muslims,4 5 and remained so until the end of the Kingdom; no legislation was introduced to regulate these affairs (Layish 2005, ix).6
Sharia here meant uncodified rulings of the Maliki School, which is predominant in Libya like in the rest of the Arab Maghreb. Since there could be different opinions in this school concerning the matter at hand, Law No. 29/1962 on the Judicial System required judges to apply the rajah opinion, i.e., the stronger opinion in terms of evidence, regardless of how many scholars adopt it.7 Applying Sharia to personal status matters was left to qadis, judges trained in Islamic jurisprudence. When shari courts were merged with civil ones in 1954, for the first time in the Arab world, those qadis resisted the merger and succeeded in 1958 in getting their separate courts back (Metz 1989, 120).8
The case was different with regard to non-personal status matters. They were for the most part regulated by legislation derived from Egyptian codes, which were themselves influenced by European models. Still, envisaging that there could be a case of a lacuna, the Civil Code stated that judges shall resort to the “principles of Sharia” to rule in such a case.9 As to Abd al-Razzaq al-Sanhuri, the Egyptian scholar who drafted Libya's Civil Code, the term “principles” meant Sharia rules that did not differ from one school of thought to another.
Hence, disputed ones, which constitute the greater part of Sharia, were excluded. He also added another qualification: the principles chosen must not contradict the foundational principles of the Civil Code. This would result in, as he put it, “the Code's losing its character and legal harmony” (Bechor 2007, 83). As it was accurately noted, the reference to Sharia in such a way limited to a large extent “its practical usefulness,” leaving the phrase “the principles of Sharia are almost as nebulous as ‘natural justice'” (Bechor 2007, 83).During the 1950s and 1960s, Sharia's role in Libya's lawmaking was limited, but this was about to change with Gaddafi's coup d’etat in 1969.