Law of Libya
Encyclopedia
The law of Libya has historically been influenced by Ottoman, French, Italian, and Egyptian sources. Under the Great Socialist People's Libyan Arab Jamahiriya, Libya has moved towards a legal system based on sharia
, but with various deviations from it.
, the civil law was the Majallat al-ah Kam al-ad Liyat. In 1830, the Ottoman Empire
adopted the Napoleonic Code
as its commercial code. However, Islamic law continued to influence other areas, for example, the 1858 Ottoman Land Code, which comprised a mix of Turkish traditional practises and Islamic law. By 1870, the Senussi
movement of Sufi
- and Salafi
-influenced jurist Muhammad ibn Ali as-Senussi
had also effectively established an alternative legal system, more purely based on Islamic law, for the tribes of inland Libya. The coastal portion of Libya was also administered as an Italian colony
from 1911 to 1943, bringing Italian law into Libya as well.
, which itself was based on the French civil law
, but also recognised sharia
and Arab customs as a source of law. Arab customs were ranked by Article I of the Libyan code as third as a source of law in Libya, behind sharia; this compares to its ranking of second, ahead of sharia, in other countries adopting Sanhuri codes such as Egypt and Iraq. European laws were imported and applied in fields where sharia law was less developed, namely commercial law, procedural law, and penal law. Islamic influence remained in some areas of commercial law too, however; Libya was the first country adopting the Sanhuri code to prohibit riba
(usury).
Libya maintained a dual system of courts during this period: sharia
law, of the Maliki
school, was applied by sharia courts in matters of personal status. However, the establishment of this system of dual courts in practise meant power was taken away from the traditional sharia courts, leading to a backlash and the growth of Islamic opposition movements.
came to power in the Libyan Revolution, he promised to reinstate sharia law and abrogate imported laws which contradicted Islamic values. Initially, however, Article 34 of the 1969 constitution stated that all old laws remained in effect, except for those which contravened the new constitution. In 1973, Gaddafi suspended all legislation, and stated that sharia would be the law of the land. The dual-court system was also abolished that year, replaced by a single court system which aimed to bring together Islamic and secular principles. However, by 1974, progress in the Islamicisation of the law had come to a halt.
The Green Book, Gaddafi's outline of his political and economic philosophy for Libya, officially accepts religion and customary law as sources of law for society. In 1977, the Libyan government promulgated the Declaration of People's Power, which superseded the constitution; this also stated that the Qur'an
was the source of legislation for Libya. However, throughout the late 1970s and 1980s, Gaddafi repeatedly emphasised in speeches that Islamic law was an insufficient basis for modern economic and social relations, and that the traditional Islamic guidelines for property and commerce had no legal standing. In practise, secular policies overrode religion as a source of law. Thus, by 1990, Ann Elizabeth Mayer of the University of Pennsylvania
described Gaddafi's actual progress towards the Islamisation of Libyan law as "very modest", and largely aimed not at reviving specific sharia rules, but enforcing public morality consistent with Libyan values.
One area in particular in which Libyan laws are inconsistent with sharia is in the penal law, where the punishments are lighter than those mandated by traditional hudud
, especially in the case of needy offenders. Mayer analyses this as leniency inspired by the Libyan government's socialist principles. The Libyan government also viewed sharia's protection of private property, along with principles of Islamic law regarding contracts and commerce, as incompatible with a socialist economic programme. However, Libyan law follows the sharia rules of evidence; the testimony of women and non-Muslims is not accepted in criminal matters. The Maliki school continued to be used as the source of Islamic law; however, if Maliki sources do not cover a certain question, reference is made to the Libyan Penal Code and the Libyan Code of Penal Procedure, rather than other schools of sharia law. The practical aim of this procedure seems to have been to limit the number and scope of sharia laws applied.
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
, but with various deviations from it.
Ottoman and Italian law
When Libya was ruled by the Ottoman EmpireHistory of Ottoman Libya
The coastal region of what is today Libya was ruled by the Ottoman Empire from 1551 to 1911, from 1864 as the Vilayet of Tripolitania . It was also known as the Kingdom of Tripoli, even though it was not technically a kingdom, but an Ottoman province ruled by pashas , as the Karamanli dynasty...
, the civil law was the Majallat al-ah Kam al-ad Liyat. In 1830, the Ottoman Empire
Ottoman Empire
The Ottoman EmpireIt was usually referred to as the "Ottoman Empire", the "Turkish Empire", the "Ottoman Caliphate" or more commonly "Turkey" by its contemporaries...
adopted the Napoleonic Code
Napoleonic code
The Napoleonic Code — or Code Napoléon — is the French civil code, established under Napoléon I in 1804. The code forbade privileges based on birth, allowed freedom of religion, and specified that government jobs go to the most qualified...
as its commercial code. However, Islamic law continued to influence other areas, for example, the 1858 Ottoman Land Code, which comprised a mix of Turkish traditional practises and Islamic law. By 1870, the Senussi
Senussi
The Senussi or Sanussi refers to a Muslim political-religious order in Libya and the Sudan region founded in Mecca in 1837 by the Grand Senussi, Sayyid Muhammad ibn Ali as-Senussi. Senussi was concerned with both the decline of Islamic thought and spirituality and the weakening of Muslim political...
movement of Sufi
Sufism
Sufism or ' is defined by its adherents as the inner, mystical dimension of Islam. A practitioner of this tradition is generally known as a '...
- and Salafi
Salafi
A Salafi come from Sunni Islam is a follower of an Islamic movement, Salafiyyah, that is supposed to take the Salaf who lived during the patristic period of early Islam as model examples...
-influenced jurist Muhammad ibn Ali as-Senussi
Muhammad ibn Ali as-Senussi
Sayyid Muhammad ibn Ali as-Senussi was the founder of the Senussi order. The order was founded in 1837.Al-Senussi was born in al-Wasita near Mostaganem, Algeria, and was named al-Senussi after a venerated Muslim teacher. He was a member of the Walad Sidi Abdalla tribe, and was a sharif tracing his...
had also effectively established an alternative legal system, more purely based on Islamic law, for the tribes of inland Libya. The coastal portion of Libya was also administered as an Italian colony
Italian Libya
Italian Libya was a unified colony of Italian North Africa established in 1934 in what represents present-day Libya...
from 1911 to 1943, bringing Italian law into Libya as well.
Law under the federal monarchy
In the 1950s under King Idris, completely new codes based on French and Italian civil law were drafted, including the Commercial Code of 1953 and the Civil Code of 1954. The latter was written by Abd El-Razzak El-Sanhuri, the author of the 1948 Egyptian Civil CodeEgyptian Civil Code
The Egyptian Civil Code is the primary source of civil law for Egypt.The first version of Egyptian Civil Code was written in 1949 containing 1149 articles. The prime author of the 1949 code was the jurist Abd El-Razzak El-Sanhuri, who received assistance from Dean Edouard Lambert of the University...
, which itself was based on the French civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
, but also recognised sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
and Arab customs as a source of law. Arab customs were ranked by Article I of the Libyan code as third as a source of law in Libya, behind sharia; this compares to its ranking of second, ahead of sharia, in other countries adopting Sanhuri codes such as Egypt and Iraq. European laws were imported and applied in fields where sharia law was less developed, namely commercial law, procedural law, and penal law. Islamic influence remained in some areas of commercial law too, however; Libya was the first country adopting the Sanhuri code to prohibit riba
Riba
Riba means one of the senses of "usury" . Riba is forbidden in Islamic economic jurisprudence fiqh and considered as a major sin...
(usury).
Libya maintained a dual system of courts during this period: sharia
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
law, of the Maliki
Maliki
The ' madhhab is one of the schools of Fiqh or religious law within Sunni Islam. It is the second-largest of the four schools, followed by approximately 25% of Muslims, mostly in North Africa, West Africa, the United Arab Emirates, Kuwait, and in some parts of Saudi Arabia...
school, was applied by sharia courts in matters of personal status. However, the establishment of this system of dual courts in practise meant power was taken away from the traditional sharia courts, leading to a backlash and the growth of Islamic opposition movements.
Post-revolutionary law
When Muammar GaddafiMuammar Gaddafi
Muammar Muhammad Abu Minyar Gaddafi or "September 1942" 20 October 2011), commonly known as Muammar Gaddafi or Colonel Gaddafi, was the official ruler of the Libyan Arab Republic from 1969 to 1977 and then the "Brother Leader" of the Libyan Arab Jamahiriya from 1977 to 2011.He seized power in a...
came to power in the Libyan Revolution, he promised to reinstate sharia law and abrogate imported laws which contradicted Islamic values. Initially, however, Article 34 of the 1969 constitution stated that all old laws remained in effect, except for those which contravened the new constitution. In 1973, Gaddafi suspended all legislation, and stated that sharia would be the law of the land. The dual-court system was also abolished that year, replaced by a single court system which aimed to bring together Islamic and secular principles. However, by 1974, progress in the Islamicisation of the law had come to a halt.
The Green Book, Gaddafi's outline of his political and economic philosophy for Libya, officially accepts religion and customary law as sources of law for society. In 1977, the Libyan government promulgated the Declaration of People's Power, which superseded the constitution; this also stated that the Qur'an
Qur'an
The Quran , also transliterated Qur'an, Koran, Alcoran, Qur’ān, Coran, Kuran, and al-Qur’ān, is the central religious text of Islam, which Muslims consider the verbatim word of God . It is regarded widely as the finest piece of literature in the Arabic language...
was the source of legislation for Libya. However, throughout the late 1970s and 1980s, Gaddafi repeatedly emphasised in speeches that Islamic law was an insufficient basis for modern economic and social relations, and that the traditional Islamic guidelines for property and commerce had no legal standing. In practise, secular policies overrode religion as a source of law. Thus, by 1990, Ann Elizabeth Mayer of the University of Pennsylvania
University of Pennsylvania
The University of Pennsylvania is a private, Ivy League university located in Philadelphia, Pennsylvania, United States. Penn is the fourth-oldest institution of higher education in the United States,Penn is the fourth-oldest using the founding dates claimed by each institution...
described Gaddafi's actual progress towards the Islamisation of Libyan law as "very modest", and largely aimed not at reviving specific sharia rules, but enforcing public morality consistent with Libyan values.
One area in particular in which Libyan laws are inconsistent with sharia is in the penal law, where the punishments are lighter than those mandated by traditional hudud
Hudud
Hudud is the word often used in Islamic literature for the bounds of acceptable behaviour and the punishments for serious crimes...
, especially in the case of needy offenders. Mayer analyses this as leniency inspired by the Libyan government's socialist principles. The Libyan government also viewed sharia's protection of private property, along with principles of Islamic law regarding contracts and commerce, as incompatible with a socialist economic programme. However, Libyan law follows the sharia rules of evidence; the testimony of women and non-Muslims is not accepted in criminal matters. The Maliki school continued to be used as the source of Islamic law; however, if Maliki sources do not cover a certain question, reference is made to the Libyan Penal Code and the Libyan Code of Penal Procedure, rather than other schools of sharia law. The practical aim of this procedure seems to have been to limit the number and scope of sharia laws applied.
See also
- Petroleum Law of 1955Petroleum Law of 1955Libya's Petroleum Law No. 25 of 1955 was the law of Libya which authorised the allocation of land to individual oil prospectors, and the drilling of oil wells. It followed the Minerals Law of 1953, which established a system for obtaining permits to survey for petroleum...
- Copyright Law of 1968 on WikisourceWikisourceWikisource is an online digital library of free content textual sources on a wiki, operated by the Wikimedia Foundation. Its aims are to host all forms of free text, in many languages, and translations. Originally conceived as an archive to store useful or important historical texts, it has...