The New Civil Code of the United Arab Emirates: a Further Reassertion of the Shari'a

Abstract

The extent to which the Shan'a must be regarded as paramount in the jurisprudence of the United Arab Emirates (UAE) has been dealt with at some length in the first issue of this Quarterly. 1 The long-awaited Civil Code2 provides a topical and important example of the increasing trend towards a reassertion of Islam in legislation and jurisprudence3 in the Islamic countries, and gives further emphasis, if such were needed, of the essentiality in all cases of an analysis of the extent to which the Shan'a may apply in any particular case.4 In anticipation of the detailed analysis which follows, it may be said that the new Civil Code of the UAE is firmly based on Shari'a principles. Before turning to a detailed analysis of the Civil Code it is relevant to consider shortly the recent legal history of the Gulf area as a whole. It is particularly relevant to recall that the British Crown exercised extraterritorial jurisdiction over) broadly, all non-Muslim foreigners in Kuwait, Bahrain, Qatar, and The Trucial States (now the UAE). To a lesser extent such jurisdiction also operated in Oman, although this was a special case and need not concern us here. No such jurisdiction operated in Saudi Arabia where there has remained throughout a virtually unalloyed adherence to the Shari'a, modified only by secular iCregulations1. The extraterritorial jurisdiction ended in Kuwait in 1961; and in the rest of the area in 1971.5 During the currency of the extraterritorial jurisdiction, the local or indigenous courts operated, of course, in parallel with British extraterritorial courts. In the former courts there was little written law. It is not surprising that the one book to be found at the right hand of, perhaps, every judge of such courts in the area was the Majella, the nineteenth century Ottoman codification of the Shari'a in the Hanafi School.6 The Majella was never promulgated expressly as law in any of the Gulf jurisdictions but in practice