Modern Law and Arab Societies in Recent French-Speaking Literature

Abstract

It is only recently that French research has considered law in Arab countries anew, from a point of view that is not strictly juristic or positivist. Islamic studies in Europe were traditionally very much interested in the study of Islamic law, for the practical objective of administrating colonizing countries or for the more culturalist reason that law was considered the core of Islamic civilization.' This interest in Islamic law gave birth to a huge literature whose achievements should not be overlooked. It was, however, mainly focused on scriptural law, i.e., the law of jurists and offiqh books. Prominent figures like Yvon Linant de Bellefonds, Emil Tyan, and Louis Milliot wrote books that are still resourceful for research, but they all fell into the trap of essentializing a scholarly produced law without giving an account of legal practices and variations from time to time and place to place. Rene Maunier and Jacques Berque were notable exceptions with regard to that attitude toward Islamic law. Post-independence legal thinking became even more positivist. Among the many factors explaining this trend, one should stress what Michel Camau called the crafting of a prospective law, that is, a law whose ideological component is oriented toward the transformation of a society and the construction of a state, to the prejudice of its organizational component, i.e. the way in which law attempts to reflect and to regulate actual social structures. Duplicating French legal codes, training lawyers in France and resorting to French lawyers for teaching law did not help to restore the balance. It is only in Morocco, under the influence of an ethnographic paradigm, that we can observe some evidence of a strong attention directed toward social practices. Some pioneers like Najib Bouderbala and Paul Pascon, Omar