Since the death of the prophet Mohamed, the Arab nation has been struggling to find an appropriate balance between the religious values and concepts of Islam on one side, and political struggles to acquire the authority and to control the nation on the other side. Caliphates who ruled the Arab world for almost thousand years combined between material and spirituals elements in a bid to establish the legitimacy needed to consolidate their grip on power and to govern the nation. Today, the relationship between the religious and the material sources of the modern substantive laws in the Arab world is a solid relationship related to legitimacy1. This is best demonstrated at present, in the fact that Islamic sharia and Islamic legislations are considered in most of the Arab countries as the prime and first source of legislation, as Sharia contained basic principles, related to all fields of the law. This is because Islam is not only a religion, but also a comprehensive social system which contains legal rules in addition to rules of creed and morals2. It contains provisions which govern contracts, personal status, marriage, inheritance, deeds, the right of ownership, easements, usufructs….. It governs evidence, procedures, decisions and how to appeal them, in addition to a penal code. The flexibility of Sharia and its ability to modernize itself with the time3, prompted Esmein and Levy-Ullmann to consider Islamic Sharia as a distinct and different legal System than all other principal legal systems in the world4. Rosenthal noted that the Arabs were brilliant thinkers, performed wonderful works in mathematics and astronomy and for the same reason, they succeeded in drafting legislation and setting up clear and coherent grammar rules for the Arabic language.5
Islamic Sharia plays a major role in most of Arab countries laws, not only as a reflection of the influence of Islam on the Arab world, but also as confirmation of the legitimacy of the governor. As in the time of Caliphates and their continued search for legitimacy, in modern times too such legitimacy of the government necessitated that the state must acquire a religious flare to justify the legitimacy of the ruler. Today if we survey most of the Arab states modern constitutions apart from the Lebanese constitution, we found that Islamic Sharia is declared, as "a" or "the" source of national legislation. The Egyptian scholar Dr. FARHAT, highlighting the strong relationship between religion and the law in the Arab world, has aptly pointed out that because the past President of Egypt Anwar Al-SADAT was looking for a new legitimacy which could distinguish his regime from that of the revolutionaries of 1952, SADAT influenced the amendment of article 2 of the Egyptian constitution of 1971,which expressly stated that Islam is the religion of the state and that Islamic Sharia is a principal source of legislation in Egypt, coinciding thus with his view, that Egypt was a state of "science and faith". Accordingly, in the 1980 amendment of the Egyptian constitution, Islamic Sharia became "THE" principal source of legislation in Egypt instead of "A" source of legislation. About such amendments of the Egyptian constitution, Dr. FARHA noticed, that the latest amendment related to the role of Islamic Sharia in Egyptian legislation has accompanied another amendment of the Egyptian constitution to article 77 which made the renewal of the mandate term of presidency in Egypt unlimited. Thus, the Egyptian were called to approve Islamic Sharia as the principal source of Legislation in Egypt along with voting in favor of the president of Egypt for lifetime6.
This paper shall attempt to explain the influence of religion on laws in modern Syria, which is a multicultural jurisdiction, where Islam is a source of legislation. To what extent religion can play a role in secular legal system? How do people of various faiths live successfully by both Syrian secular laws as well as their religious laws? This study shall offer an overview of the Syrian secular legal system and shall demonstrate areas where religion influenced secular law, in whole as is the case in the Syrian code of personal status or where Islamic Jurisprudence partially influenced secular law as is the case for the Syrian civil law. On the other hand, while the application of Islamic criminal law has a highly symbolic value and is regarded by many Muslims as the litmus test for a real Islamisation of the legal system, Syria a non-confessional state, applies a western style penal code which protects the religion and the right to all of its citizens to freely practice it.
1. Syria in a nutshell
1.1. Origin of the name
The name Syria derives from the Semitic term Siryon. In the Bible ( Deuteronomy 3.9), this refers to Mount Hermon. Syria is originally a Greek word; its probable first literary use occurs in Aeschylus's Persae(84), written in 472 B.C. Herodotus, writing about 440B.C. used Syria loosely in the Histories to refer to Cappadocia. In the Hellenistic period, the Greeks used the term Coele Syria to refer to the area between the Mediterranean and the Euphrates River, distinguishing it from the part of Syria in Mesopotamia. The Seleucids of the third century B.C. also used the term vaguely to mean what is now called Southwest Asia. The Romans first used this term to refer to what came to be the standard area-"those regions of the Near East between Asia Minor and Egypt which belonged to the Roman Empire. The Byzantines subsequently adopted the Roman usage7.
Arabians conquered historic Syria in the seventh century A.D. Although they brought with them new names- Ash-Sham (the North),Arabians used the term in tandem with al-yaman, "the south" (in English, "Yemen"), Bilad ash-sham (the country of Sham), they exactly retained the Romans' meaning8. Some scholars mention that the origin of the nomination Bilad ash-sham, for Syria, meant the plural of shame in Arabic which means a mole or a beauty spot, a spot on the body that is different in color, to indicate the many villages that Bilad ash-sham had9.
Disregarding the Arabic term, Europeans continued to use the name Syria (or Surie) through the centuries. With the expansion of European influence, the term Suriya-an Arabic form of the Greek name- was introduced in Arabic and Turkish, probably by Protestant missionaries. As early as1825, a farewell letter of Jonas king to his" brethren in Palestine and Syria" used the word Suriya. The term gained currency in the mid-nineteenth century. Thus, the Syrian Society for the Acquisition of the Sciences and the Arts (Jam'iya Suriya li-Iktisab al-Ulum wa'l Funun)came into existence in 1847 and lasted until 1850. Founded by three American missionaries, it consisted only of Christian members. The Syrian Scholarly Society (al-jam'iya al-illmiya as –suriya), founded in 1868, included Muslims as well. Butrus al-Bustani, a leading figure in the development of Syrian consciousness, published a newspaper in 1860 called Nafir Sriya (" The Trumpet of Syria").
Historically, the name Syria refers to a region far larger than the one presently contained by the state called Syria. At minimum, that Syria includes an irregular rectangles bounded by the Mediterranean Sea in the west, the Taurus and Anti-Taurus Mountains in the north, and the Syrian, Arabian, and Sinai deserts in the east and the south10. In terms of today's political units, historic Syria comprises all of four states- Syria, Jordan, Occupied Palestine(Israel, the west Bank and Gaza Strip), and substantial portions of southeastern Turkey. Today modern Syria extends over 185000 sq km and is bounded by the Mediterranean and Lebanon on the west, by Palestine and Jordan on the south, by Iraq on the east and by Turkey on the northxii.
1.2. Population of Syria
Syria today has approximately 22 Millions inhabitants. Ethnically and religiously the Syrians are diverse, Muslim Arabs form the vast majority of the population, on the basis of religion, one can demarcate the following communities: 68.7% is Sunni Muslim, 16% belong to the Druze, Shiei, Alawi and Ismaili communities, 14.1% belong to the more than 11 different Christian churches and communities, and the remaining 1.8% is composed of Jews, Yazidis, and others. Majority of Christians in Syria are orthodox, Catholics are divide into five churches- Greek (Melkite), Syrian Armenian, Chaldean (Nestorian), and Maronite- as well as the Latin rite. Other Christians include the Armenian (Gregorian church), Nestorians(Assyrians), and Protestants. Jews include the indigenous Sephardim and immigrant Ashkenazim12.
1.3. History of Syria
While it is beyond the scope of this study to display Syria's history, it is important to briefly mention the different invasions which influenced the modern history of Syria to account for the region's present characteristic and religious and ethnic diversity.
Syrian is one of the most ancient civilization on earth as demonstrated by archeologists. Around the excavated city of Ebla in northern Syria, an Italian mission discovered in 1975, a great Semitic empire spread from the Red Sea north to Turkey and east to Mesopotamia from 2500 to 2400 BC Ebla appears to have been founded around 3000 BC and gradually built its empire through trade with the cities of Sumer and Akkad, as well as with peoples to the northwest13.
Syria was a Roman(Byzantine) province from 64 BC to 636 AD, In the Roman period, the great city of Antioch (called "the Athens of the east" at that time) was the capital of Syria. It was one of the largest cities in the ancient world, with a total estimated population of 500,000, as well as one of the largest centers of trade and industry. As one of the wealthiest and more populous provinces of the Roman Empire, it is estimated that the population of Syria in the early Roman Empire was only exceeded in the 19th century14. Syria is significant in the history of Christianity; Paul was converted on the Road to Damascus and established the first organized Christian Church at Antioch in ancient Syria, from which he left on many of his missionary journeys. The importance of Christianity in Syria is often publicly emphasized by Syrian officials:" Syria is a school of tolerance and co-existence between Islam and Christianity, and it is the cradle of Christianity to the whole world, and that Saint Paul is from Damascus" as Mohsen Bilal the Syrian Information Minister pointed out in an interview with NEW TV about Christianity15.
The battle of Yarmuk in August 636 between the Rashidun Caliphate and the Byzantine Empire over six days, near the Yarmuk River, along what is today the border between Syria and Jordan, south-east of the Sea of Galilee marked the first great wave of Islamic conquests after the death of the prophet Muhammad, heralding the rapid advance of Islam into the then Christian Levant and into Syria16. In 661, only two decades after the capture of Syria, the Umayyad transferred the capital of the new Islamic empire from Medina to Damascus. The city remained the centre of the empire for just one century. The taking of the Damascus symbolic of the way in which events unfold in the future. It is reported that the Muslims entered by two gates, one having resisted and the other capitulated. Lying between the two gates, the Basilica of St. John was divided in two- one sanctuary for the Muslims and the other for the Christians. As a result, the Umayyad mosque was constructed on the remains of the half of the cathedral, and the congregations of the two religions for a long time worshipped alongside each other. At Homs, the large church provided shelter for the services of the two religions for four centuries. It was not until the Crusades, and the atmosphere of suspicion they generated, that this practice, which testified to the great tolerance of the early Islamic rulers, ceased17.
In 750, Syria was violently snatched by the Abbasids, the central power was moved from Syria to Iraq where Baghdad became the capital of the Abbasid18.
For almost four centuries, from 1516 to 1918, Syria became part of the Ottoman empire Ottoman rulers divided Syria into a variety of administrative districts during those four centuries. After 1864, these consisted of three vilayets(Aleppo, Damascus, and Beirut); the province of Jerusalem; and the mutasarifiya of Mount Lebanon) but such units had little administrative significance, people and goods freely traversed administrative lines .it is important to emphasize that the territorial concepts in existence today- Palestine, Israel, Jordan, Syria, the Arab world- did not appear until very late in the Ottoman period; and Lebanon existed only in embryo. The location of Syria makes it a crossroad for conquering armies; the mountainous terrain makes it a refuge for vanquished and oppressed peoples, holiness makes it a destination for pilgrims and pioneers. These factors explain the region's characteristic religious and ethnic diversity19.
After World War I, the Ottoman Empire was dissolved, and in 1922 the League of Nations split the dominion of the former Syria between two countries: the United Kingdom received Transjordan and Palestine, and France received what was to become modern-day Syria and Lebanon20.
In 1925, Syrian resistance to French colonial rule broke out in full scale revolt. Despite French attempts to maintain control by encouraging sectarian divisions and isolating urban and rural areas, the revolt spread from the countryside and united Syrian Druze, Sunnis, Shiites, Allawis, and Christians. Once the rebel forces had besieged Damascus, the French military responded with brutal counter-insurgency techniques that prefigured those that would be used later in Algeria and Indo-China21, sparking more anger and demonstrations. The matter was discussed in the United Nations Security Council, which came up with a resolution demanding France's withdrawal from Syria. The French had to comply; their last soldier left Syria on 17 April 1946, which was chosen to be Syria's National Day22.
Independence dawned in Syria in 1947. Nationalization and Reform of the legal system began soon thereafter. Pending the enactment of a national constitution, a number of news laws were enforced, including the Civil, Penal and Commercial Codes of 1949. A new Criminal Procedure Code came in force in 1950 and a new Civil Procedure Code in 1953. As regards personal law the Ottoman law on family rights 1917 remained in force in Syrian until 1953. During that year under the program of nationalization of the legal system, it was repealed and replaced with a new law.
1.4. Summary of The Syrian Judicial System
Due to its relation to the subject of this study, it is appropriate to briefly explore the Syrian Judicial System. The Syrian legal system draws primarily from the French Civil code, as well Islamic and Egyptian legal traditions.
Syria has a dual judicial system, with separate secular and religious courts. The secular courts hear both civil and criminal matters. At the lowest level are the Courts of Conciliation ( Mahkim Al-Sulh), Courts of First Instance (Mahakim Al-Bidaya). Juvenile Courts Mahakim Al-Ahdath) and the Customs Court (AL-Mahkama AL-Jumrukiea). Cases brought before these courts are heard by a single judge who is assigned jurisdiction according to the nature of the case. The Court of Assize is an additional criminal court that hears cases in which the punishment may exceed three years imprisonment (felonies). Decisions made at the Conciliation Courts, Courts of first instance and court of Assize may be appealed at the Court of Appeal, or ,in some instances, the Court of Cassation. There is one Supreme Court in Syria located in Damascus and subdivided into specialized three-judges chambers devoted to civil, criminal, religious and military matters.
While the Minister of Justice oversees Syria criminal and civil courts systems by, the Council of State, which consists of an administrative court system responsible for adjudicating administrative disputes involving the state and its agencies, is directly under the supervision of the chairman of the council of ministers in Syria23.
Since Syria is a secular state with a population affiliated to different religions, it is normal that the Syrian legislator has provided for specialized courts systems for major religions in Syria to try cases related to each community personal status. These special courts are, the Islamic , Doctrinal and spiritual Courts. Islamic Courts (Mahkama Sharia), hear cases involving personal status, family and inheritance disputes among Syrian Muslims and non-Syrian Muslims who adhere to Islamic personal status laws in their own countries. Spiritual Courts (Mahakem Rawhie) settle personal status for Christians who belong to different rites :The Eastern Orthodox are split into Greek and Syrian (Jacobite)branches. Catholics divide into five Uniate churches – Greek (Melkite), Syrian, Armenians, Chaldean (Nestorian), and Maronite- as well as the Latin rite. Other Christians include the Armenians (Gregorian church), Nestorians (Assyrians),and protestants. The main Spiritual Courts which try the cases of all Christians in Syria are the Orthodox spiritual Court and the Catholic spiritual court.
The Syrian Constitution24
Since Syria gained its independence in 1946, its successive governments, have invested considerable effort in the creation of a national consciousness whereby the state would become a focus of identification and a unifying element of all its citizens irrespective of their religious or ethnic belonging. Such consciousness would replace the traditional self-identification of the individual and his family with the tribe and the religious community. The message of " patriotic unity" namely the unity of the parts of the population residing on Syrian soil, and the "national unity" in the sense of the unity of the entire Arab nation is not just a rhetoric often emphasized in the Syrian media, rather it is a constitutional principle decided in the Syrian constitution of 1973 issued by the late president Hafez Al-ASSAD by virtue of decree No. 208 year 1973 still in force in Syria. The ideology of the ruling Ba’th party in Syria which promotes secularism and the unity of the Arab people has impacted the drafting of the Syrian constitution of 1973. Article 1/2 of the Syrian constitution clearly states that the Syrian Arab state is part of the Arab Nationhood. Moreover, when the Ba’th party came to power in 1963, the articles protecting the freedom of religion and the observance of the personal status law of religious communities mentioned in articles 3/3 and ¾ of the constitutions of 1950, 1953, 1962 were removed from the Syrian constitution25, and replaced in the constitution of 1973 with article 25/326 which provide that "Syrian citizens enjoys equal rights and duties and are equally treated before the law" irrespective of their ethnical or religious belonging." Freedom of religion is guaranteed and the state respects all religions" (Article 35/1). The State guarantees the freedom of worship and religious processing provided it does not violate the public order".
It can be said that the Syrian constitution of 1973, contains two main elements: the unity and diversity. The element of unity is manifested in the confirmation of the equality of all Syrian citizens who are bound by the Syrian citizenship irrespective of their ethnic, religious or national belonging. The element of unity means also the unity of the attitude of the political authority in the state towards the Syrian citizens and in the treatment of the state of its citizens on the basis of their equality in rights and duties which they enjoy. As for the element of diversity, it is manifested in the Syrian constitution in the provisions which clearly state that the Syrian states respect all religions and declare the Syrian state commitment to guarantee the freedom of worship to all religions as previously noted. The only restriction permissible on the exercise of such constitutional rights is when their practice breaches the public order. Such restrictions are permitted in the main international human rights instruments, such as the universal declaration of Human rights of 1948 and the international covenant on the Civil and Political Rights of 1966, provided that such restrictions are limited in time i.e. not permanent and must be notified to an international organ27. Moreover, there are some basic human rights against which no derogation is permissible, such inalienable rights covers for example the right of life, right of not being subjected to torture, not be enslaved, the freedom of religion and freedom of expression. Such basic rights as stated in the second paragraph of article 4 of the international covenant on civil and political rights could not be restricted under any circumstances and any constitution as noted by the study of the international jurists commission, must confirm and complete the protection granted to such fundamental human rights by international human rights instruments. An example for instance of the internationally allowed restrictions on human rights, is the second paragraph of article 32 of the Syrian constitution which allows the limitation of the right to freely travel in the territories of the Syrian state, pursuant to a judicial order or in implementation of health and public safety regulations, such as the outbreak of a contiguous disease, or when a competent Syrian Court issues a ban on leaving for a certain individual.
As for the influence of religion on the Syrian constitution, It is submitted that the fact that the Syrian constitution expressly provides in article 3/1 that Islam is the religion of the president of the republic, unlike most of other Arab states constitutions which provide that Islam is the State religion, does not contradict with the aforementioned Syrian constitutional principle of non-discrimination in article 25/3 of the Syrian constitution of 1973 for the following reasons: First, Islam in essence accepts religious multiplicity and has considered the faith of the believers in monotheistic religions which preceded Islam such as Judaism and Christianity as a fundamental part of believing in Islam28. In fact, Islam orders Muslims to respect other religions and to leave the believers of such religions in peace. We read in the Koran; " You have your own religion, and I have mine"29 and also :" There shall be no compulsion in religion"30 the emphasis in the Koran regarding accepting other religions is even stronger in Sourat "The Table: "…..We have ordained a law and assigned a path for each of you. Had Allah pleased, He could have made you one nation: but it is His wish to prove you by that which He has bestowed upon you"31. Second, the Syrian state is secular and the constitution confirms its non-confessional nature as only the religion of its president is Islam. This is best understood, when comparing Syrian constitution of 1971 with constitutions of other Arab States: Jordan's constitution of January 1st. 1952 provides in article 2 that Islam is the religion of the state(the Kingdom), Egypt constitution of September 11, 9171, provides in article 2 that Islam is the religion of the state and the principles of Islamic Sharia are principal source of legislation, Saudi Arabia constitution of 29 August, 1926 ( The Basic Law of the Hijazi Kingdom) states that Saudi Arabia is an Islamic Kingdom, moreover, article 6 of the aforementioned Saudi constitution provides that decisions in the Kingdom must always be identical with the Book of God( The Koran) and Sunah (traditions of the Prophet Mohamed, which means the things he said, i.e. hadith and the way he lived his life, his conduct)and also must conform to the conduct of the companions of the prophets and the good followers)Qatar's constitution of 19th of April 1972 provides in article1 that "Qatar is an Arab sovereign state, its religion is Islam, and Islamic Sharia is the principal source of its legislation. Kuwaiti constitution of 11 November 1962 provides in article 2 that Islam is the religion of the state, Islamic Sharia is a principle source of legislation. Only the Lebanese constitution among the Arab countries constitution does not state that Islam is the religion of the state nor the religion of its president, instead the Lebanese constitution article 9, clearly states that freedom of belief is absolute32.
Third, the state respects all religions and not only Islam. Because the majority of the Syrian population are Muslims, Syrian constitution of 1973 provides that the religion of the president is Islam. In fact, a century after the conquest of Syria by the Muslims, the Muslim Arab population of Syria is said to have numbered only 200,000, to which must be added a few thousand mawali (converts to Islam) of Syrian origin. The figure suggests how little the newly established Islam had penetrated the body of Syrian Christianity: out of 4 Million people, perhaps 250,000 (6 percent of the population) were Muslim33. Religious tolerance and pacific coexistence among religions in Syria has a strong and solid roots. It is reported that in one incident, the past Syrian President Hafez Al-Assad, while answering the question of one Syrian legislator Abdulla Moussalai, was quoted saying: " My brother Abdullah, assure the Christians, that Syria before Hafez Al-Assad, with him and after him will remain the same, Christians will have the same rights like their Muslim brothers in Syria, because there is no difference between the Muslim and the Christian in Syria".
It should be noted that previous Syrian constitutions, prior to the 1973 constitution did not mention any reference to Islam as religion of the state in Syria. The Basic law of the Syrian Arab kingdom of 1920 clearly stated in Article 1, that government of the Syrian Arab Kingdom is a civil parliamentary government with Damascus as its capital and the religion of its king is Islam. Moreover, the Syrian constitution of 14 May1930 did not mention Islam at all. It has only stated that the freedom of religion is absolute and that the state respects all communities and religions in the land and guarantees the practice of the creed and protects the religious interests of all inhabitants and their personal financial code irrespective of their communal belonging.(article 15, of the Syrian constitution of 1930), Furthermore, both Syrian constitutions of 1950 and 1953, stated in article 1 that Islam is the religion of the President of the republic. Whereas, the Syrian temporary constitution of 1964 provides in article 3 that the religion of the president of the republic is Islam, the temporary constitution of the United Arab Republic (Syria & Egypt) March 1958 completely omits any reference to Islam as the religion of the state or that of the president of the republic34.In the constitution of the 1973 Islam as religion of the president of the republic appeared again (article3/1) and Islamic Sharia as a principal source of legislation in Syria ( article 3/2) emphasizing thus , that the Syrian laws and Syrian constitution are neutral and that the state does not favor one religion of its citizens over another. The Syrian legislator considers that because of the diverse nature of the Syrian society, stability and prosperity can only be ensured when relations between the state and its citizens firmly rest on the observance of a neutral law. Consequently it can be said, that Syrian constitution of 1973, by selecting Islamic Fiqh, as principal source of legislation and not the only the source for legislation, adopted a multiple legal system to facilitate the dealing with the cultural and the religious diversity and specificity of Syrian citizens, in application of the principal :" Religion is for God and the nationhood is for all".
The above does not amount to saying that, states which constitutions provide that Islam is the religion of the state necessarily discriminate against non Muslim citizen of its population, rather the stipulations regarding Islam as religion of the state in many of the constitutions of the states who have a majority of a Muslim population such as Kuwait, Libya, Algeria, Morocco, Qatar, Bangladesh and Malaysia, is the result of political circumstances reflecting the political struggle between the governing regimes and the groups of political Islam in these countries35. Whether Islamic Sharia is "a" source or "the source" of national legislation, the past Syrian President of the Syrian Constitutional Court considers the difference is only verbal and that does not ban legislators in states which uses sharia as a source or prime source of its legislations from referring and using other sources of law to legislate as long as such new legislations are in harmony with Islamic Sharia and do not contradict its commands and principles36.
It is worthwhile to notice that the drafters of all past Syrian constitutions37 -except for the constitution of the United Arab Republic of 1958 as previously indicated- and the current applicable constitution of 1973 intended to use the word fiqh as source of law in Syria , as opposed to the word Sharia which is used instead of fiqh nearly in all other Arab states constitutions as a source of legislation despite the obvious difference in meaning between fiqh and Sharia. The historian Ibn Khaldun describes fiqh as "knowledge of the rules of God which concern the actions of persons who own themselves bound to obey the law respecting what is required (wajib), forbidden (haraam), recommended (mandūb), disapproved (makruh) or merely permitted (mubah)38.
Whereas Islamic Sharia means the stipulations in the Koran and Sunnah regarding the creed, worship(Ibadat), morals and dealings among people (Moamalat), Ismaic Fiqh, is the understanding of such stipulations and the deep comprehension of its objectives. Accordingly, Fiqh complements Shariah with evolving rulings/interpretations of Islamic jurists, as shall be more developed in the next section where the effect of religion is mostly felt on the Syrian Code of Personal Status of 1953 as amended.
Syrian Code of Personal Status (CPS)of 1953 As Amended
3.1. Origin
As indicated above, during the era preceding World War 1 Syria was a part of the Ottoman Empire. During that period the Ottoman legal and judicial system as reformed from time to time, was operative in the Syrian territories. The Ottoman Empire established in 1856 officially, the system of religious intergentile law with the so-called Humayuni law. Intergentile law is the legal system by which religious or ethnic minority communities are given a certain autonomy in legal affairs. The legislative and judicial autonomy for non-Muslims covered the fields of personal status, bequests, and inheritance.
At the same time, scholars of Ottoman history illustrated how the Shari'a courts in various regions of the Empire have played an active role in the lives of Christian populations. Under the traditional Ottoman millet System, Christians (as well as jews) within the empire were allowed to have recourse to their own legal institutions( which included both episcopal and communal courts),and develop their own regulations according to their customs and traditions. In exchange for such rights, Christians were expected to pay a poll tax. The major exception to their right to see redress through their own clergy was in regard to matters involving the security and sovereignty of the state. Thus, on matters of a communal mature, such as marriage, divorce, and inheritance, Christians could appeal directly to their own courts or legal officials. However, criminal maters, taxation, or other disputes involving Christians and Muslims had to be tried in the Ottoman courts. This is how the system worked in theory. Studies of such Ottoman cities as Nicosia and Damascus, and Kayseri, Cankiri and Kastamonu in Turkey, indicate that Christians used the Ottoman courts for various reasons not limited to criminal matters, taxation and inter-religious disputes, It was not uncommon to find that Christians chose these court in cases where they could have used their own court. Thus we find Christian marriage, divorce and inheritance cases in the court records39
In 1876 the Ottoman officially abrogated the separate legal dimmi status for its non-Muslim subjects and declared all subjects equal, thereby introducing the concept of Ottoman citizenship. In the Ottoman family Code of 1917, the family courts of the various religious communities were replaced by a single family courts of the various religious communities were replaced by a single family court for all Ottoman subjects. But in Syria, King Faisal reinstated the rule of Humayuni law in 1919 and therewith maintained the intergentile legal status40. The Ottoman Law on Family Rights 1917 remained in force in Syria until 1953 until Shaikh al-Tantawi, Qadi of Damascus, had published a treatise on personal law detailing the legal rules derived from various schools of Islamic law in consonance with the new social conditions of Syria. This treatise was taken as the basic source-material by the commission which the Syrian government set up to draft a code of personal status. Soon the commission submitted a draft and after a few months of debate in and outside the legislature it was enacted under the title Qanun al-Ahwal al-Shakhsiyah – the Code of Personal Status law(CPU) 59 of 1953. It came in force on 17 September 1953. The official memorandum issued with the Code stated that its provisions had been derived from the Ottoman Law on Family Rights 1917, the Egyptian Laws on Personal Status and Succession 1920-1946 and the works of Qadri Pasha of Egypt and Ali al-Tantawi of Damascus.
The Code declared dominant opinion in the Hanafi school of jurisprudence, the predominant school of Islamic thoughts under Ottoman rule, to be the residual law(article 305 of the Code of Personal Status of 1953)nevertheless, the clarifying remarks to the CPS, provides that the Code availed itself also of the instrument of Ikhtiyar, the freedom to chose suitable rules from other Islamic schools of law as well as from Syrian traditional rules41. After twenty –two years of its initial enactment a number of articles in the first four books of the Syria Code of Personal status of 1953 were significantly amended by the Personal Status (Amendment)law No.34 of 1975 The amending law – which modified or added new provisions as many as twenty two articles and aimed at securing better legal rights to women.
It should be noted, that In Islam there are Nineteen schools of fiqh (fiqh madhhabs) developed during the first four centuries of Islam. By the fall of Baghdad (in 1258 C.E. to the Mongols, that is- not to be confused with modern events), the number of major madhhabs had dwindled to five (four sunni and one shia). At present, the four major schools of fiqh among the sunni Muslims are: (1) Hanafi (founded by Imam Abu Hanifa 699-767AD) in Irak, (2) Maliki (founded by Imam Malik b. Anas 711-795 AD.), (3) Shafi'I (founded by Imam Al-Shafi born in Gaza 767-819 AD., and (4) Hanbali (founded by Imam Ahmad Hanbal 780-841 AD). Among the shia, the Jafari school predominates."42 These Schools had , to some extent a regional distribution: for instance, North Africa and Islamic Spain adhered to the Malkite school, Central Asia and the territory occupied by the Ottoman Empire was dominated by the Hanafi school.43
3.2. Content of the CPS
The Syrian Code of Personal Status No. 59 of 1953 contained 308 articles placed under the following six books- each divided into a number of chapters as follows:
1- Marriage
1.Marriages & Engagement 2. Elements of Marriage & Its Conditions 3. Kinds of Marriage. 4.Effects of Marriage. ( articles 1-84).
2- Dissolution of Marriage
1.Talaq, 2.Mukhalaa (consensual divorce), 3.Judicial Divorce, 4.Effect of Dissolution of Marriage. ( articles 85-129).
3- Birth and its Results
1.Paternity, 2. Custody of Children, 3 . Suckling , 4. Maintenance of Relatives.( article 130-161).
4- Capacity and Legal Representation
( articles 162-207)
5- Bequests
1.General Principles 2. Rules of Bequest. (208-259).
6- Inheritance
1.General Principles 2. Causes & Modes of & Disqualifications for Inheritance 3. Qur'anic Heirs, 4.Agnatic Heirs, 5.Exclusion & Return 6.Uterine Heirs, 7. Acknowledged Kinsmen, 8. Miscellaneous. ( articles 260-308).
3.3. Application of The CPS
Although Syria considers itself a secular state and makes no constitutional provisions for the supremacy of Islam or the Sharia, the opposite is the case for its legal system of family law. Here religion and not citizenship is the decisive factor. Article 306 of the CPS, decides that Islamic law is predominant in Syria, because generally the CPS, applies to all Syrians, however exceptions are made on the basis of religion for the Druze, the Christians and the Jews. They are granted legislative and judicial autonomy in the filed of family law44. Article 306 of CPS spreads the application of the code to all Syrians in all matters decided in the Code except for those matters listed in some special provisions for the Druze and Christians of Syria(articles 307-308).
Druze, Christian and Jews are given a limited legislative and judicial autonomy in the field of family law. As for the Druze, article 307 of CPS. provides, among other things, that polygamy is not allowed, the rules of foster relationship and divorce by Li’an are not applicable, divorce can only take place with ruling by a judge, and rules regarding dower (mahr) and adultery are modified. Moreover, bequests for heirs and aliens are valid for the Druze.
On the other hand, the CPS is also applicable to the Christians and the Jews, except for the following cases specified in article 308 of the CPS as follows: Engagement, conditions, conclusions, and consequences of the marriage; alimentation of the wife and minor children; invalidity and dissolution of the marriage; dowery (dutta; custody of minors(hadana). In these cases, the Christians and the jews have legislative power. This means that matters not mentioned in this listing, such as parentage (nasab), guardianship(Wilaya), and inheritance are regulated according to (the Islamic)CPS. Berger has aptly noted that this is a quite a break with the past: most of theses fields of law tended to remain within the autonomous Christian and Jewish communities.
In all the cases where the CPS does not explicitly apply to the Druze, Christians and Jews, these religious communities continue to have legislative autonomy. The Jews and Druze have their family law. The Jewish Code of Personal status is called Qanun al-ahwal al-shaksiah li al –Musawiyyin, Druze in Syria have not promulgated their laws of personal status. While the Christians in Syria have over 11 churches and communities that are in principle entitled to have their own legislation and courts, only five different laws of personal status are applicable. The five Christian laws are:
- The Greek Orthodox (Qanu Haqq al-aila) the law of the Family right.
- The Syrian Orthodox (Qanun al-ahwal shakhsieh) the law of the personal status
- The Armenian Orthodox(Qanun al-ahwal shakhsieh) the law of the personal status.
- The Evangelist (also protestants)(Qanun al-ahwal shakhsieh).
- Catholic (Nizam Sirr al-zawag), the order of the secret of marriage, applicable to: Roman Catholic; Armeninas Cathloic; Syrian Catholic; Maronites; Chaldeans, Latins.
It should be noted that the above limited legislative autonomy which the Druze, Christians and Jews enjoy in Syria, is coupled with a judicial autonomy. The Syrian Code of judicial authority of 1965, which partially implemented the French decree n 60 of 1936 still in force in Syria, allows each community to have its own family courts and appeal courts: For the Muslims (Sharia Courts),the Mazhabi Court for the Druze, and the Ruhia (Spiritual) Courts for the Christians and the Jews.(article 33 of the Syrian Code of Judicial Authority). All three categories have their own appeal courts. But after appeal in the first instance, appeal in the second instance can only be referred to the Ruhi chamber of the Syrian Supreme Court(art. 48 Code of Judicial Authority).
While Sharia Courts have a general authority in all matters relating to the personal status among Muslims in their districts and the Sharia Courts judges are appointed by the Ministry of Justice, The Mazhabi court for the Druze, located in southern Syria in Sweida, is regulated by article 35 of the Judicial Authority Code and the Druze judge is appointed after consultation with the Minister of Justice and the consent of the High Council of Judges. In contrast, the Jewish as well as the Christian communities and churches have full liberty to appoint their judges who do not necessarily need to have the Syrian nationality and the Ministry of justice need only to be informed of the appointment. The composition of the Ruhia Courts is regulated in Decree no. 6 of 1936.
Most churches have a court of first instance in every diocese and an appeal court in the city where the seat of the Patriarch is located. The Catholics have united have united their different churches in a single court. Most churches have a court of first instance in every diocese, and an appeal court in the city where the seat of the Patriarch is located45.
It should be noted that all three categories of family courts are bound by the rules of the Code of Principles of the Courts with regard to the "Courts of first instance in simple cases' as mandated in article 33 of the Code of Judicial Authority. Interference in the work of the non-Muslim family courts work is very limited and is restricted only to procedural matters. Thus, if the rules of court procedure of the Code of Principles of Court are not followed, the proceedings before the family courts are legally ineffective. Examples of non-Muslims court verdicts declared invalid are those based upon the improper hearing of the parties, and negligence in the handling of proof or witnesses. Also, verdicts by Christians family courts were declared void by the Supreme Court for issuing them in name of Church instead of using the standard phrase: " In name of the Arab people of Syria" or for issuing them on Fridays, which is a working day for the Christians but also the official national Holiday46.
This system of religious intergentile law, whereby Islamic family law is considered the prevalent law and therefore is applicable on all Syrians regardless of their religious affiliation , with exceptions granted to Christians, Jews communities in Syria and to lesser extent the Druze community to apply their own laws before their own family courts in special matters related to marriage and divorce only, despite its apparent respect of the religious diversity of the Syrian society, it leads to complex results. For instance, in a Christian divorce case, the parties may have to refer to the Ruhia court for their divorce and apply the church’s family law to it, but have to refer to the Sharia court and have Islamic family law applied to the guardianship of their children, whilst they also have to refer to the civil court and have civil law applied to disputes on the ownership of goods47. Perhaps, avoidance of such complexity is one of the main reasons which prompted the Syrian legislator to issue the new (Qanu Ahwal Shaksieh lil tawaf Kathoulikie), the Code of Personal Status For Catholics Communities in Syria, Law No. 31 year 2006 as below explained.
3.4. Return to the Origin : Law No. 31 Year 2006
On the 18th of June 2006, the Syrian President Bachar Al-Assad, based on what had been decided by the Syrian Parliament in its session on 13/6/2009 issued Law No.31 Year 2006 know as " Kanun Al-Ahwal Al-Shaksieh Lil-tawaef Al-Katholikia" The Law of the Personal Status For the Catholic Communities" published in the Syrian official Gazette No.26, first part, July 2006. The new law grants total autonomy for the Catholic Christian community in matters of personal status. Article 280 of the new law No.33 year 2006 expressly modifies the CPS. and stop the application of the later on members of the Catholic Christian community. Article 281 of Law No. 33 year 2006 gives the exclusive right to Catholic courts to look into matters of the personal status of its members. The new law contains many innovations such as granting equal inheritance rights to male and female, allowing adoption which is not possible in Islam, decides new rules for the bequest and allows it for a heir under conditions detailed in the new law( article 192)in addition to other matters. Despite, that the new law has been vigorously criticized by observers because it applies to the catholic community alone, thus creating discrimination between different Christian communities in Syria and change many settled rules of the civil and evidence code which were applicable to procedure before religious courts in Syria before the passing of the new law No. 31 year 2006. Nevertheless, religious leaders of the Greek catholic church (the Melkites) consider the passing of the new law as an achievement and a step forward to consolidate the power of the church over its followers and to foster the Christian presence in Syria. The debate over the question whether there should be one personal status code for all Syrians or one personal status code for each religious community is old and never stops. Irrespective of how one feels and the position of one takes regarding the passing of the new law No.33 year 2006, it is the author opinion, that legal pluralism in Syria is the proper response to the cultural diversity and specificity of certain components of the Syrian society. Such legal pluralism is made possible too, in the Quran the most important source for Islamic Sharia which approved the right of the Christians to apply their own laws in accordance with the Bible, in Surat the Table 5:47: "….Therefore let the followers of the Gospel judge in accordance with what Allah has reveled therein".
Syrian Civil Code
Before the passing of the Syrian Civil Code on the 18 of May 1949, Majalet Al-ahkam Aladlieh, the civil code for the Ottoman Empire, was applicable in Syria. The Majalet continued to be applicable, even after the collapse of the Ottoman empire and during the French mandate in Syria, until 1949 when Syria's national government was overthrown by a military coup d'état led by Hussni al-ZAIM, the first coup d'état in the Arab world. Al-ZAIM issued the current Syrian Civil Code by legislative decree No.84 year 1949 containing the Syrian Civil Code still in force in Syria and canceled the application of the Majalet. The explanatory note of the Syrian Civil Code48, explains that the Syrian Civil Code was taken from the Egyptian Civil Code, published in the Egyptian official gazette in July 1948 due to similarities in traditions, customs and social situations between Syria and Egypt. In turn The Egyptian Civil Code of 1948 drew from three main sources: The Egyptian Jurisprudence of the old Egyptian civil code based on French Civil Code (1776-1883), Islamic Sharia to a great extent and comparative western laws such as Italian, Swiss, Polish and German Civil Code.
The first article of the Syrian Civil Code (SCC) explains the importance of Islamic Sharia as a source of legislation in the Syrian legal system. If the Civil code is silent about a specific legal point, the judge must find the solution in Islamic Sharia. The judge could refer to custom, principles of natural law and rules of Justice only, if no solution is to be found in Islamic Sharia. Such referral to Islamic Sharia is mandatory for the Syrian judge, in case the provisions of the Civil Code do not provide for a ruling about a certain legal matter. On the other hand, while Islamic Sharia principles is a supplementary source of law, however, they have priority over custom, principles of natural law and rules of Justice. This is because the principles of Sharia enjoys clarity of provisions since they rest on settled rules and principles of Islamic Jurisprudence (fiqh).
The Importance of fiqh( Isamic Jurisprudence) is best demonstrated in the SCC., where many legal theories and practical solutions were taken from the books of Fiqh, to offer fair and manageable rulings to solve problems ensuing in the Muslim society. Mattson, highlighted the importance of Fiqh as a source of legislation:"Quranic rulings and principles have been extended by scholars to ensure that the revelation remains relevant to new situations and circumstances……Scholars have invoked general principles and universal values found in the Quran to connect, reconcile, and balance divergent rulings obtained through deductive reasoning from particular Quranic texts49."
A good example of legal theories supplied by Islamic Sharia and fiqh which forms part of the (SCC.) is the doctrine of the abuse of rights (article 5-6 SCC.) Isaet Istimal al-haq, "sumum jus,sumum injura" which basically refers to the concept that the malicious or antisocial exercise of otherwise legitimate rights can give rise to civil liability "malitus non est indulgendum". Even though the abuse of rights was not introduced by Islamic Sharia as a complete theory, nonetheless, the elements of the doctrine were clear and well anchored in the Majalet before the theory was even known in European laws and legislations of the pre-twentieth centuries. Moreover, whereas Napoleon's code did not codify the abus de droit theory, Majalet Al-ahkam Aladlieh clearly recognized the doctrine and based it not only on the malicious intention to harm, but also on proportionality law and banned the use of right when the desire to make profit to oneself, is at so great an expense as causing excessive damage to a third party(articles 9, 20and 1197 of the Majalet)50. Unfortunately the scope of the study does not permit to elaborate further about Islamic legal theories and principles, nevertheless we could quote by way of examples the following legal theories and principles codified in the Egyptian Civil Code of 1948 and its copy the SCC., which were taken from Islamic Fiqh such as the Hawalet al-Dayn, the assignment of debt, Mabdaa alhawadeth gheir al-moutawakaa the principle of the unexpected events, Bayee Marad al-mawt Provisions regarding the sale during the illness leading to death, Ghobn inequity, alhaet al-mushtrak the shared wall, Hiba the gift or the estate and al-ahlia the capacity51.
Syrian Penal Code
The nineteenth century was a period of drastic law reform in the Muslim world, due to two global factors. One was the influence of the expansion of the colonial western powers in the Muslim world and the westernization of the state and society which entailed the adoption of Western laws. The other was indigenous: The emergence of modernizing states with centralized bureaucracies, both in the colonies and in the countries that had kept their independence. Such states needed new legal systems, and especially new systems of criminal law to replace Sharia in order to ensure more legal certainty and predictability of the outcome of the legal proceedings.
Islamic Sharia, has different classification of the crimes and punishments from the classification of the Roman law. Sharia has few crimes with defined punishments, some provisions regarding offences mentioned in the Koran and constituting violations of the claims of God (huquq Allah)sanctioned with mandatory fixed punishments (hadd, plual hudud), these offenses are: theft, banditry, unlawful sexual intercourse, the unfounded accusation of unlawful intercourse( slander), drinking alcohol, and apostasy according to some schools of jurisprudence. Other offences against persons, i.e. homicide and wounding have also fixed punishment known as (qisas) retaliation, and financial compensation (diya). However, Sharia did not determine a punishment for many sinful or forbidden behavior or acts endangering public order or state security such as fraud in sale, non payment of the debt, hiding criminals and false testimony at the court, rather Sharia left the imposition of the punishments (tazir) in such cases to the discretion of the judge depending on the circumstances of each case. Tazir was not known in Roman law and even against its principles. For instance, the main principle of nulla poena sine lege, i.e. the punishment may be awarded on the strength of a law defining the offence and its punishment, did not leave any room for the discretion of the judge.
The reform of criminal law in the Islamic world during the nineteenth century took three forms: complete abolition of Islamic criminal law, reform of Islamic criminal law and reform of the justice system through increase of the codifications of crimes and punishments to subject the system to some form of the rule of law.
In Syria, (Kanun Al-Jazaa Al-othmani) the Ottoman penal code of 1858 which originally drew from Islamic Sharia and local customs and later from French Code, was completely abolished in 1949 and replaced by the Lebanese penal code which took its provisions mainly from the French Code, in addition to the Italian code of 1930 and the Swiss Code of 1937. The explanatory memo of the new Syrian penal code No.148 year 1949, explains that the Ottoman law was no longer appropriate to accommodate the development of social, economic, commercial and intellectual life in Syria. Consequently, Islamic criminal law is not applicable in Syria as it is the case in some Arab countries such as Saudi Arabia, Yemen. Accordingly, actions like apostasy of Muslims sanctioned by death in Islamic sharia, are not punished by Syrian Penal Code Syria, although conversion by a Muslim to another religion is socially unacceptable. Moreover, theft is punished by imprisonment not by amputation of a limb (articles621-634), flogging is not a possible punishment in Syrian Penal Code. On the other hand, while the Syrian Penal Code, exempts the person who commits rape from the penalty , if he gets married to the victim with her consent (article 508), Islamic Sharia, does not give weight to the consent of the victim in rape cases and consent of the victim does not wipe out the punishment for Hiraba which could attain death52.
It should be noted that Syrian Penal Code protected the practice of religion and imposed a punishment on the desecration of worship places(article 463), interference with the practice of religion, or committing any other action which implies demeaning publically practiced religious ceremony (article 462).
CONCLUSION
There is without doubt, a place for religious law within the secular legal system worldwide. On the other hand, stability and prosperity can only be ensured where relations between the state and its citizens firmly rest on the observance of the rule of law. Syria one of the most ancient civilization on earth, is today a secular state as expressly declared in the Syrian constitution of 1973 which provides no constitutional provisions for the supremacy of Islam or the Sharia. The Syrian legislator aware of the diverse cultural and religious nature of the Syrian society on the one hand and of the importance of Islam, the religion of the majority of the Syrian population on the other hand, has adopted a legal system that uses Islamic jurisprudence (Fiqh)as an important source of legislation. Islamic Fiqh has influenced to a great extent the drafting of the Syrian Islamic Code of Personal status which applies to all Syrian Citizens in all matters of personal status, with the exception of marriage and divorce where Christian, Jews and Druze are given restricted autonomy. Most recently the Christian Catholics in Syria have obtained a separate code of personal status that take them totally out of the ambit of the application of the Islamic personal status code and grant the community a complete legislative and judicial freedom in matters of personal status. Other communities have the right also to do so, if their religious leaders decide to have a greater autonomy in matters of family law. This confirms that the religious tolerance is a distinctive feature of the Syrian society. In the Civil Code, the Syrian legislator has borrowed many legal doctrines and principles from Islamic jurisprudence which uses deductive reasoning and other legal methods to ensure that Islamic religion continue to provide solutions to problems of contemporary Muslim society. The Syrian legal system, apart from personal status code, is based on citizenship not on religion. As such the Syrian legal system offers Legal pluralism as a solution to respond to the needs arising from the cultural and religious diversity of the Syrian society while at the same time safeguarding the Syrian national unity, a serious challenge in the Middle East continuously subjected to fragmentation.
This paper was courtesy supported by Frankfurt Bar Association, Germany.
Razi A. Diab, Attorney at law, member of Damascus Bar
Association, member of Union Internationale Des Avocats (UIA),
Member of the Board of the Arab Center for International
Humanitarian law and Human Rights Education(ACIHL)Strasbourg,
France, LL.B. Damascus University, LL.M. University of Kent at
Canterbury UKC. UK, LL.M. Boston University, BU.,MA., USA.,
currently partner at Al-Kherdaji & Diab Law Firm
www.kherdajidiab.com, Member of the
Bord of Acihl.
[1] AZAM S. F "Al-Houkouk Al-Madnieh Wal Siyasieh fi Al-Dasatir Al-Arabieh "in Arabic" Civil and Political Rights in Arab Constitutions" at 58 published in Al-Doustour fi Al-Watan Al-ARabi" in Arabic " The constitution in the Arab World" No47 year 2006, Marka Dirasat Al-Wehda Al-ARABIA, Arab Unity Studies Center.
[2] YAKAN, Zuhdi " Al-Kanoun Al-Romani wal Sharia Islamie " in English: " Roman Law and Islamic Sharia" Yakan Publishing House, Beirut 1975. at 27.
[3] Id. at 20.
[4] Id.
[5] Id.
[6]FARHAT M N., "Religion and the Constitution in Egypt", available at www.pidegypt.org/ activities/constitution/DrFarhat.doc at 2.
[7] PIPES, Daniel " Greater Syria- The History of an Ambition" Oxford Universities Press, 1990 at13.
[8] Id. at 14.
[9] KASSAM Y., "Al-Mawsoua Al-Sourie Al-Hadithe" in English The Modern Syrian Encyclopedia, Book No.3, part 7 page 12 2005 , NOBILIS.
[10] Supra note 8 at14.
[11] Supra note 10.
[12] Although the number of the Syrian population is accurate, the figures related to the communities are taken from Nikolaos Van Dam, the struggle for power in SYRIA. Politics and Society under Assad and the Bath's party (I.B Tauris, London, 1996, p.1), they date back to 1996 and they might have changed. The number of the Jewish community today might not exceed 1000 and the Christians are less than 12% Cited in BERGER, M. "The Legal System of Family Law in Syria" Bulletin d'Etudes Orientales, XLIX, 1997 IFEAD, Damas, p.115.
[13] Available at http://en.wikipedia.org/wiki/History_of_Syria. Visited on August 2nd.2009.
[14] Id.
[15] Interview by the Syrian news agency SANA in April 2009.
[16] Supra note 14.
[17]COURBAGE, Y. & FARGUES, P. " Christians and Jews Under Islam" (In English) translated by MABRO, J. I.B. Tauris Publishers . London – New York 1997 at10-11.
[18] Id. at11.
[19] Supra note 8 at 16-17.
[20] Supra note 14.
[21] Id.
[22] http://www.damascus-online.com/history/brief.htm Visited on 3/8/2009.
[23] HAIDAR, Dalia "Syria's Judicial System", Syria today, a publication of International Development Associate Syria, issue of July 2009, at page 37.
[24] For full text of the current Syrian constitution of 1973 and other Arab states constitutions, please refer to this web site: URL: http://www.tashreaat.com/dostoor_Syria.asp.
[25] Supra note 13 at 116.
[26] The Syrian Constitution of 1973 issued by the late president Hafez Al-ASSAD by decree No.308 and applicable in Syria since 13/3/1973
[27] KISS Alexandre Charles. "Permissible Limitations on Rights" in the international Bill of Rights. The Covenant on Civil and Political Rights. Louis Henkin Editor. New York. Columbia University Press. 1981, P.296. Cited in "Les Apports Islamiques Au Développement Du Droit International Des Droits De L'Homme" Thèse pour le doctorat en Droit" in French by Dr. Mohamad Amin AL-MIDANI, Strasbourg, Octobre 1987. P.293-308.
[28] Supra not 2 at 154.
[29] The Koran. Sourat "The Unbelievers"(Al-Kafirun), (chapter 109). Verse 6.
[30] The Koran. Sourat "The Cow"(Al-Bakarah), (chapter2).Verse 256.
[31] The Koran Sourat "The Table" (Al-Mai'da), (chapter5).Verse 48.
[32] Moghaizel, Joseph "Hawla al-Hiwar Al-Kawmi- Al-Dini" in English" Regarding the National- Religious Dialogue" essay published in a compilation of essays regarding the subject issued by" Markaz Dirasat Al-Wehda Al-Arabia" in Arabic , The Center For Arab Unity Studies, Beirut, Lebanon, December 1989. the Center for Arab Unity Studies" on pages 81-114.
[33] Supra note18at11.
[34] Supra note10 at 15.
[35] FARHAT Mohamad Nor, OP.cit., at footnote 6.
[36] MANLA HAIDAR, N, "al-Sharia al-Islamiah bain al tatbik wal talik, al-fiqh al-islami kamasdar raeissi min masader al-tashrie" in English "Islamic Sharia between application and commentary, Islamic jurisprudence as a principal source of legislation". AL-Mouhamoun, No. 11, 12 year 1997, page 105-111.
[37] The basic law of the Syrian Arab Kingdom of 1920, The Syrian Constitution of September 5th,1950, The Syrian constitution of July 10, 1953,the temporary Syrian Constitution of April 25th.of1964, the temporary Syrian constitution of May 1st., 1969. And finally the current Syrian constitution of 1973. the Syrian constitution of May14 of 1930 is the only Syrian constitution which did not include any reference to Islam or Fiqh as source of legislation.
[38] Wikipedia :URLhttp://en.wikipedia.org/wiki/Fiqh Visited on August 11, 2009.
[39] JOSPEH, S " Communicating Justice; Shari'a Courts and the Christian Community in Seventeenth – and Eighteenth- Century Ottoman Greece". Islam and Christian Muslim Relations Volume 20, Number 3, 333-350, July 2009 Routledge Taylor & Francis group.
[40]Supra note 13 at 117.
[41] Id. at 118.
[42] Marylin Johnson Raisch:"Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law" Published in February 2006.
[43] PETERS, R, "Crime & Punishment In Islamic Law" Cambridge University Press, 2009 at 6.
[44] Supra note 13at118.
[45] Id.
[46] MALEK, Hana 'Al-Ahwal AL-Shakhsia Wa Mahakimuha Lil Tawaef AL-massihya fi suria was libnan' in English " The personal Status and its tribunals for the Christians Communities in Syria and Lebanon" Dar Al-Nahar, Beirut, 1972 at pp.355-358.
[47] Supra note 123at 127.
[48] KUWATLI, A.,"Al-wajiz fi al-hukuk al-madania" in English "Summary of Civil Rights" Part1,,fourth Edition, Dar Al-Fikr Al-Islami, Damascus1959 at p.18
[49] Mattson, I."The Story of the Quran : its History and Place in Muslim Life" Blackwell, 2008 at 205
[50] Supra Note 49 at 313-322
[51] Id. at 26.
[52] ABU HJEILE, A:"Al-Himaya AlJazaeia Lilard fi alkawanin alwadeia wal sharia al-islamia" in English "Criminal Protection for the Honor in positive laws and Islamic Sharia". Dar Wael for printing and distribution, Annab, Jordan, 1st. Edition 2003, at 48
BIBLIOGRAPHY
BOOKS
- ABU HJEILE, A., :" Al-Himaya AlJazaeia Lilard fi alkawanin alwadeia wal sharia al-islamia" in English "Criminal Protection for the Honor in positive laws and Islamic Sharia".Dar Wael for printing and distribution, Annab, Jordan, 1st. Edition 2003.
- AL-MIDANI, A., "Les Apports Islamiques Au Développement Du Droit International Des Droits De L'Homme" Thèse pour le doctorat en Droit" in French by Dr. Mohamad Amin AL-MIDANI, Strasbourg, Octobre 1987.
- COURBAGE, Y. & FARGUES, P. "Christians and Jews Under Islam" translated by MABRO, J. I.B.Tauris Publishers . London – New York 1997.
- GHALI, K., :"Mabadee al-kanoun al-distouri wal nozom al-siyasia" in English" The Principles of Constitutional Laws and Political Systems" Damascus University Al-Rawda Printing House 1990.
- KASSAM, Y S., "Al-Mawsoua Al-Sourie Al-Hadithe' in English: "The Modern Syrian Encyclopedia" , Book No.3 , part 7, 2005 NOBILIS.
- KISS A. Ch,. "Permissible Limitations on Rights" in the international Bill of Rights. The Covenant on Civil and Political Rights. Louis Henkin Editor. New York. Columbia University Press. 1981.
- KUWATLI, A., "Al-wajiz fi al-hukuk al-madania" in English "Summary of Civil Rights" Part1,fourth Edition, Dar Al-Fikr Al-Islami, Damascus1959.
- Mattson, I., "The Story of the Quran : its History and Place in Muslim Life" Blackwell, 2008.
- MALEK, H., 'Al-Ahwal AL-Shakhsia Wa Mahakimuha Lil Tawaef AL-massihya fi suria wa libnan' in English "The personal Status and its tribunals for the Christians Communities in Syria and Lebanon" Dar Al-Nahar, Beirut, 1972
- PETERS, R, "Crime & Punishment In Islamic Law" Cambridge University Press, 2009.
- PIPES, D., "Greater Syria- The History of an Ambition" Oxford Universities Press, 1990
- ROZENTHAL, F., "The Methods of Muslim Scholars in scientific research" Translated into Arabic by Anis Freiha " Manahej Al-Oulama AlMuslimine fi al- bahth alelmi " Dar –AL-Thakafa , Beirut, 1961.
- VAN DAM, N., "The Struggle For Power in Syria. Politics and Society Under Assad and the Bath's Party" I.B Tauris, London, 1996.
- YAKAN, Z., "Al-Kanoun Al-Romani wal Sharia Islamie " in English: "Roman Law and Islamic Sharia" Yakan Publishing House, Beirut 1975.
JOURNALS
- AZAM S. F., "Al-Houkouk Al-Madnieh Wal Siyasieh fi Al-Dasatir Al-Arabieh" in English "Civil and Political Rights in Arab Constitutions" published in Al-Doustour fi Al-Watan Al-ARabi" in English " The constitution in the Arab World" No47 year 2006, Marka Dirasat Al-Wehda Al-AABIA, Arab Unity Studies Center.
- BERGER, M., "The Legal System of Family Law in Syria" Bulletin d'Etudes Orientales, XLIX, 1997 IFEAD, Damas.
- HAIDAR, D., "Syria's Judicial System", Syria today, a publication of International Development Associate Syria, issue of July 2009.
- JOSPEH, S., " Communicating Justice; Shari'a Courts and the Christian Community in Seventeenth – and Eighteenth- Century Ottoman Greece". Islam and Christian Muslim Relations Volume 20, Number 3, 333-350, July 2009 Routledge Taylor & Francis group.
- MANLA HAIDAR, N, "al-Sharia al-Islamiah bain al tatbik wal talik, al-fiqh al-islami kamasdar raeissi min masader al-tashrie" in English " Islamic Sharia between application and commentary, Islamic jurisprudence as a principal source of legislation". AL-Mouhamoun, The Journal of the Syrian Bar Association, No. 11, 12 year 1997.
- MOGAHIZEL, J. "Hawla al-Hiwar Al-Kawmi- Al-Dini" in English "Regarding the National- Religious Dialogue" essay published in a compilation of essays regarding the subject issued by" Markaz Dirasat Al-Wehda Al-Arabia" in Arabic , The Center For Arab Unity Studies, Beirut, Lebanon, December 1989.
ON-LINE PUBLICATIONS
- FARHAT M. N., "Religion and the Constitution in Egypt". http://www.pidegypt.org/activities/constitution/DrFarhat.doc
- MARYLIN, J R., :"Religious Legal Systems: A Brief Guide to Research and Its Role in Comparative Law" Published in February 2006. http://www.nyulawglobal.org/Globalex/Religious_Legal_Systems.htm
- Arab constitutions: http://www.tashreaat.com/dostoor_Syria.asp
- Fiqh: http://en.wikipedia.org/wiki/Fiqh
- History of Syria: http://en.wikipedia.org/wiki/History_of_Syria.
- History of Syria: http://www.damascus-online.com/history/brief.htm.
