Emory International Law Review

The Civil Codes of Libya and Syria: Hybridity, Durability, and Post-Revolution Viability in the Aftermath of the Arab Spring
Dan E. Stigall Dan E. Stigall is a trial attorney with the U.S. Department of Justice, Office of International Affairs, where he focuses on issues relating to North Africa, the Middle East, South Asia, and Southwest Asia. He currently serves as Senior Counsel to the Assistant Attorney General of the Criminal Division. He also serves as an Adjunct Professor of International Law at the The Judge Advocate General’s Legal Center and School (U.S. Army). He previously served on active duty in the U.S. Army JAG Corps from 2001-2009, serving in Europe, the Middle East, and the United States. LL.M., 2009, George Washington University School of Law; J.D., 2000, Louisiana State University Paul M. Hebert Law Center; B.A.,1996, Louisiana State University. Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice.The author wishes to thank Professor Chibli Mallat and Professor Haider Ala Hamoudi for taking the time to read earlier drafts of this Article and providing insight based on their unparalleled expertise in Middle Eastern legal systems. The author also wishes to thank his dear friend, Professor Sean Foley, for his insights relating to the history and politics of the region. The author also wishes to thank Liz and Madeleine for their assistance at the Library of Congress.

The Arab Spring sent shockwaves through the political landscape of the Middle East and North Africa and upended long-standing authoritarian regimes throughout the region in rapid succession. Among the many countries touched by the Arab Spring, Libya and Syria have been among the most profoundly impacted, experiencing institutional deficits that complicate efforts to resolve ongoing conflicts and now threaten regional stability.

The effects of such instability also pose a threat to the international community. In order to transition from conflict to peace and sustainable development in Libya and Syria, however, international actors will need to make concerted efforts at rebuilding the architecture of governance, a process which entails restoration of rule of law, dispute resolution, and core government functions. Such a process necessarily entails engagement with the civil law systems in force in these countries.

This Article, therefore, explores the structure and substance of the Libyan Civil Code and the Syrian Civil Code, with special attention given to two of the most critical aspects of civil law vis-à-vis post-conflict reconstruction: The way each civil code addresses the formation of obligations and the regulation of property rights. This Article explicates the formal rules that: (1) regulate the legal affairs of citizens in those countries; (2) notes the applicability of those laws to post-revolution problems; (3) explores those elements and aspects of the Libyan and Syrian civil codes which have made them such durable legal institutions; (4) and assesses their ongoing, post-revolution viability.

Introduction

On December 17, 2010, a young Tunisian man named Mohammed Bouazizi, in a desperate act of protest, set himself on fire in front of the local government offices in the town of Sidi Bouzid. 1Marc Lynch, The Arab Uprising: The Unfinished Revolutions of the New Middle East 7 (2012) (“The uprisings that have profoundly shaped the Middle East began in a remote outpost of southern Tunisia on December 17, 2010, with the self-immolation of an unknown young man named Mohammed Bouazizi in protest against abusive and corrupt police.”); see also Wyre Davies, Doubt Over Tunisian ‘Martyr’ Who Triggered Revolution, BBC News (June 16, 2011, 8:56 PM), http://www.bbc.com/news/world-middle-east-13800493 (casting doubt on Bouazizi’s motives and impacts). This dramatic act of defiance proved lethal to Bouazizi, but caused a stirring in the political ether of the Middle East and North Africa which set in course a series of destabilizing protests, uprisings, and rebellions. 2See Lynch, supra note 1, at 9. But see Asher Susser, The “Arab Spring”: The Origins of a Misnomer, Foreign Pol’y Res. Inst.: E-Notes (Apr. 2012), http://www.fpri.org/enotes/2012/201204.susser.arabspring.html (“The tumultuous events that have swept through the Middle East during the last year or so were widely referred to in the West as the ‘Arab Spring.’”). In the days succeeding Bouazizi’s self-immolation, small protests in Tunisia garnered momentum, eventually drawing thousands of Tunisian citizens into the streets to protest the government of President Zine el-Abidine Ben Ali. 3See Lynch, supra note 1, at 7–8. The mounting protests culminated and, less than a month later, Ben Ali departed Tunisia for Saudi Arabia, abandoning his mansions and the trappings of power along with the country and people over which he had ruled for so long. 4See A.G., Tunisia and Democratic Transition, Global Brief (Mar. 9, 2011), http://globalbrief.ca/blog/2011/03/09/tunisia-and-democratic-transition/. The abrupt and somewhat unexpected success of the “Jasmine Revolution” 5Id. sent shockwaves through the political landscape of the Middle East and North Africa and gave rise to the series of upheavals and insurrections now known as the “Arab Spring.” The tremors of this phenomenon were felt throughout the region and, in the succeeding year, popular uprisings in the Middle East and North Africa upended long-standing authoritarian regimes in rapid succession. 6See Lynch, supra note 1, at 101 (“A veritable tsunami of protest swept the region as discontented publics took to the streets almost everywhere.”). Autocratic figures once thought inextricably fixed—such as those in Egypt, 7See Scott Peterson, Egypt’s Revolution Redefines What’s Possible in the Arab World, Christian Sci. Monitor (Feb. 11, 2011), http://www.csmonitor.com/World/Middle-East/2011/0211/Egypt-s-revolution-redefines-what-s-possible-in-the-Arab-world (“As darkness fell over the winter-chilled Middle East on Friday, television screens lit up living rooms from Tehran to Damascus to Rabat. All eyes were riveted by the spectacle that just weeks ago seemed impossible: the toppling of Egypt’s President Hosni Mubarak after nearly 30 years in power.”). Yemen, 8See Mohammed Hatem & Glen Carey, Yemen’s Saleh Agrees to Step Down in Exchange for Immunity, Official Says, Bloomberg (Apr. 23, 2011, 3:06 PM), http://www.bloomberg.com/news/2011-04-23/yemen-s-saleh-agrees-to-step-down-in-exchange-for-immunity-official-says.html (“Yemen President Ali Abdullah Saleh agreed to accept a Gulf Cooperation Council-brokered plan that allows him to cede power in exchange for immunity . . . .”). and Libya 9See Libya’s Col Muammar Gaddafi Killed, Says NTC, BBC News (Oct. 20, 2011, 10:02 PM), http://www.bbc.co.uk/news/world-africa-15389550. —were ousted and major protests threatened others as empowered polities, with the assistance of social media and new technologies, organized themselves and demanded change. 10See generally Andy Carvin, Distant Witness: Social Media, the Arab Spring and a Journalism Revolution (2013) (discussing the use of social media in Egypt, Yemen, and Libya).

Among the many countries touched by the Arab Spring, Libya and Syria have been among the most profoundly impacted, experiencing institutional deficits that complicate efforts to resolve ongoing conflicts and threaten regional stability. 11See Lynch, supra note 1, at 176–77,186–87. The institutional and sociopolitical abrading caused by conflict and revolution has had a deleterious effect on civil institutions in those countries—a dissolution of governmental architecture and legal authority that has given rise to a power vacuum. Such a state of affairs serves to further problematize existing tensions, create new conflicts, and prevent potential resolution of ongoing conflict. 12See Jon Unruh & Rhodri C. Williams, Land: A Foundation for Peacebuilding, in Land and Post-Conflict Peacebuilding 1, 4–5 (Jon Unruh & Rhodri C. Williams eds., 2013). Such instability also poses a threat to neighboring countries and to the international community. 13See Worldwide Threat Assessment of the U.S. Intelligence Community Before the Sen. Select Comm. on Intelligence, 113th Congress, 14 (2013) (Statement of James R. Clapper, Dir. of Nat’l Intelligence), available at http://www.dni.gov/files/documents/Intelligence%20Reports/2014%20WWTA%20%20SFR_SSCI_29_Jan.pdf (noting with regard to the Arab Spring that “[a]lthough some countries have made progress towards democratic rule, most are experiencing uncertainty, violence, and political backsliding. The toppling of leaders and weakening of regimes have also unleashed destabilizing ethnic and sectarian rivalries.”).

In order to facilitate a “transition from conflict to peace and sustainable development” in Libya and Syria, 14See Unruh & Williams, supra note 12, at 4. international actors will need to make concerted efforts at rebuilding the architecture of governance, a process which entails restoration of “rule of law, dispute resolution, [and] core government functions[.]” 15Id. In that regard, commentators have underscored the importance of the existence of functioning dispute resolution mechanisms in post-conflict settings, noting that “war-shattered states typically lack natural ‘conflict dampeners’ that exist elsewhere,” and are, consequently, more prone to civil violence. 16See Roland Paris, At War’s End: Building Peace After Civil Conflict 168 (2004). A key element of any reconstruction effort in Libya and Syria will, therefore, be the re-implementation of each country’s respective system of civil law. This is because a nation’s domestic civil law serves as a polity’s primary dispute resolution mechanism—a key “conflict dampener”—and, thus, a vital element of post-conflict stability. 17Id. This Article, accordingly, explores the structure and substance of the Libyan and Syrian civil codes, with special attention given to two of the most critical aspects of civil law vis-à-vis post-conflict reconstruction: The way each civil code addresses the formation of contracts and the regulation of property rights. 18See Unruh & Williams, supra note 12, at 4–5.

The purpose of the analysis undertaken in this Article is threefold: to (1) explicate the formal rules that regulate the legal affairs of citizens in Libya and Syria to understand the applicability of those laws to post-revolution problems; (2) explore those elements and aspects of these civil codes which have made them such durable legal institutions; and (3) assess the ongoing, post-revolution viability of these legal institutions. To better delineate the codal provisions which structure the civil law in each country, this Article adopts a comparative approach in which the Libyan and Syrian civil codes are examined together, thus permitting a more extensive exploration of the relevant legal provisions and, at the same time, demonstrating each code’s sources, hybridity, and the legal diversity that exists in the Middle East and North Africa.

I. The Arab Spring, Civil Institutions, and Civil Law

The Arab Spring impacted each country in the Middle East and North Africa differently. Countries like Algeria and Jordan experienced some protests but did not undergo transformative changes in government, nor did they experience significant institutional change. 19See Robert D. Kaplan, Why Mideast Monarchies Survive, Forbes (June 19, 2013, 6:28 AM), http://www.forbes.com/sites/stratfor/2013/06/19/why-mideast-monarchies-survive/; see also Frédéric Volpi, Algeria Versus the Arab Spring, 24 J. Democracy 104, 104 (July 2013) (noting that Algeria not only survived the Arab Spring, but hardly deviated from previous patterns of governance). Tunisia, where the uprisings began, experienced a regime change but retained its vital state institutions 20See Querine Hanlon, U.S. Army War College, Strategic Studies Inst., The Prospects For Security Sector Reform in Tunisia: A Year After the Revolution 5 (2012), available at http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1118.pdf (“Although the country is small in size relative to other Middle East and North Africa (MENA) states, its armed forces have ably filled the vacuum created by the collapse of Ben Ali’s security apparatus and the defections of police throughout the country. While providing internal security, the armed forces have also secured the maritime and land borders, countered cross-border incursions from Libyan armed groups, and established five refugee camps for 1.6 million refugees, mostly from sub-Saharan Africa, fleeing the violence in Libya. The armed forces clearly ascribe to the concept of civilian oversight of the military, and although they are currently fulfilling a number of internal security tasks, they have publicly, and repeatedly, stated their intention to return to the barracks when the police can again fulfill their security functions.”). and has since entered into a transitional phase that, although problematic in many ways, 21See Hafez Ghanem, Will Tunisia Follow Egypt?, Brookings (July 25, 2013), http://www.brookings.edu/research/opinions/2013/07/25-tunisia-egypt-democratic-reform-ghanem (“Tunisia has always been considered to be the ‘Arab Spring’ country most likely to succeed in its democratic transition. But recently, there have been worrisome signs.”). has been largely unmarred by the sort of widespread violence seen elsewhere in the region. 22See Kiran Alvi, Searching for Stability, Tunisia Stumbles, NPR (Mar. 2, 2013, 6:08 AM), http://www.npr.org/blogs/thetwo-way/2013/03/02/173173569/searching-for-stability-tunisia-stumbles. Post-Arab Spring elections in Morocco, which were brought forward by Morocco’s King Mohammed, led to the installment of Morocco’s first Islamist-led coalition government, though the Moroccan monarchy remains firmly in power. 23See Souhail Karam, Moroccan King Names Islamist-led Cabinet, Reuters (Jan. 3, 2012), available at tp://www.reuters.com/article/2012/01/03/us-morocco-government-idUSTRE80218O20120103. Similarly, in Kuwait, which has long been considered among the most progressive countries in the Gulf region, protests resulted in a political shakeup and the resignation of the Prime Minister, though the ruling family and its power structures remain. 24See Kristian Coates Ulrichsen, Kuwait’s Crisis of Democracy, Fletcher F. World Aff., (Mar. 1, 2013), http://www.fletcherforum.org/2013/03/01/coates-ulrichsen/ Bahrain experienced confrontations and unrest but, thus far, has not experienced a change in power. 25See Brian Murphy, Arab Drive for Political Reform Seen Shifting to Slow Lane, Associated Press (June 1, 2013), available at http://bigstory.ap.org/article/arab-drive-reform-seen-shifting-slow-lane. For an excellent exploration on the various poltical forces at work the Gulf states, especially in Bahrain, Kuwait, and Qatar, see Sean Foley, The Arab Gulf States: Beyond Oil and Islam (2010). Although Foley’s work was written prior to the Arab Spring, his exploration of the politics and governance of the region has continued relevance and is instructive for analysis of the Arab Spring’s aftermath. Egypt, in turn, has experienced regime changes and turbulent political vacillations marked by enormous protests, more than a thousand deaths, and a lingering uncertainty about the country’s political future—but all the while retaining many elements of the “deep state” and without a significant change in many of its key state institutions (a fact which contributed to the ouster of Egypt’s first elected post-revolution president). 26See Charles Levinson & Matt Bradley, In Egypt, the ‘Deep State’ Rises Again, Wall St. J. (July 19, 2013, 5:03 PM), http://online.wsj.com/news/articles/SB10001424127887324425204578601700051224658; see also David D. Kirkpatrick, Blood and Chaos Prevail in Egypt, N.Y. Times (Aug. 16, 2013), available at http://www.nytimes.com/2013/08/17/world/middleeast/egypt.html?_r=0; see also Samuel Tadros, Egypt’s Counter Revolution, Foreign Pol’y Res. Inst. (July 11, 2013), https://www.fpri.org/articles/2013/07/egypts-counter-revolution. Other countries in the region, however, were impacted far more profoundly. 27See Camille Tawil, Morocco’s Stability in the Wake of the Arab Spring, 6 U.S. Army Combating Terrorism Center 18, 19 (2013), available at http://www.ctc.usma.edu/posts/moroccos-stability-in-the-wake-of-the-arab-spring. Libya and Syria, in particular, have experienced the collapse of their respective governments’ key institutions in the wake of their own political upheaval and now, as a result, contain ungoverned spaces which are attracting and incubating a variety of unsavory and destabilizing transnational actors, such as terrorist organizations. 28See Clapper, supra note 13, at 14 (“The struggles of new governments in places like Tripoli and Sanaa to extend their writs, as well as the worsening internal conflict in Syria, have created opportunities for extremist groups to find ungoverned space from which to destabilize the new governments and prepare attacks against Western interests inside those countries.”); see also Borzou Daragahi, Libya ‘Cannot Stop’ Fighters Joining Syria Rebels, Fin. Times (Feb. 9, 2012, 4:17 PM), http://www.ft.com/intl/cms/s/0/0976ef5e-5248-11e1-a155-00144feabdc0.html#axzz2vJKG1800.

A. The Collapse of State Institutions in Libya and Syria

To be sure, there are numerous and important differences between the uprisings in Libya and Syria. Libyan rebels, with the assistance of NATO countries, ousted Muammar Gaddafi, and the Libyan government is now in a phase of post-conflict transition. 29See United Nations High Comm’r for Refugees, Country Operations Profile–Libya (2013), available at http://www.unhcr.org/pages/49e485f36.html (“Having recently emerged from a historic revolution inspired by the Arab Spring, Libya is going through a delicate post -conflict transitional period that offers both opportunities and challenges.”). Syria, in contrast, technically remains under the regime of Bashar al-Assad and is currently mired in a civil war of astonishing violence. 30See United Nations High Comm’r for Refugees, Country Operations Profile: Syrian Arab Republic (2013) (“A year and a half of unrest in the Syrian Arab Republic (Syria) has displaced thousands of people and had a dramatic effect on one of the largest urban-refugee populations in the world. At the time of writing, the violence had reached Damascus and its suburbs, home to the vast majority of refugees from Iraq and other countries. Faced with growing risks to their lives, many refugees and asylum-seekers have opted to return to unstable countries of origin.”); see also Michael R. Gordon & Mark Landler, Kerry Cites Clear Evidence of Chemical Weapon Use in Syria, N.Y. Times (Aug. 26, 2013), available at http://www.nytimes.com/2013/08/27/world/middleeast/syria-assad.html (“Secretary of State John Kerry said Monday that the use of chemical weapons in attacks on civilians in Syria last week was undeniable and that the Obama administration would hold the Syrian government accountable for a ‘moral obscenity’ that had shocked the world’s conscience.”). But there are also important similarities between the two countries. Notably, unlike the political upheaval in other Arab Spring countries, which experienced more modest political effects, the uprisings in Libya and the ongoing conflict in Syria are revolutions of a far more radical character. Such revolutions comport with Hannah Arendt’s understanding of the concepta violent upheaval which eliminates existing institutions, extirpates the deep state, and results in the creation of new institutions that can “preserve a space in which freedom can be exercised for posterity:” 31See Michael A. Wilkinson, Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of ‘the Tradition’ 8 (London School of Economics and Political Science,Working Paper, 2011); see also Hannah Arendt, On Revolution 2728 (1963). There are, of course, pluralities of competing definitions of what comprises a revolution. See Malick W. Ghachem, The Old Regime and the Haitian Revolution 1 (2012) (citing a French Revolutionary Catechism as defining revolution as “a violent passage from a state of slavery to a state of liberty.”); see also H.L.A. Hart, The Concept of Law 118 (2d ed., 1997) (positing a more encompassing definition in which revolution “may entail only the legally unauthorized substitution of a new set of individuals as officials, and not a new constitution or legal system.”). The Arendtian definition used in this article, however, serves the function of distinguishing between political phenomena, which fundamentally replace existing institutions or power structures, and those which are merely a change in leadership. Such a definition also comports with recent scholarship on the durability of revolutionary regimes by Stephen Levitsky and Lucan Way, in which the authors exclude from the definition of “revolutionary regime” nations which emerge from independence struggles “in which radical transformational goals do not predominate” as well as “cases of mass-based regime change in which states and social structures remain intact.” See Steven Levitsky & Lucan Way, The Durability of Revolutionary Regimes, 24 J. Democracy 5 (2013).

[O]nly where change occurs in the sense of a new beginning, where violence is used to constitute an altogether different form of government, to bring about the formation of a new body politic, where the liberation from oppression aims at least at the constitution of freedom can we speak of revolution. 32See Arendt, supra note 31, at 28.

The “new beginning” Arendt described in her commentary on revolution has begun in Libya, and at the time of this Article’s publication, remains among the competing possibilities existing on the Syrian horizon. As history repeatedly demonstrates, however, the new beginnings resulting from such revolutions mark the beginning of a treacherous path that is fraught with uncertainty due to the challenges concomitant to the destruction of state institutions. 33See generally Patrick E. Bryan, The Haitian Revolution and Its Effects (1984). Mohammed El-Katiri notes that the new Libyan government is “in effect inheriting a stateless state” and that “[a] key challenge confronting the interim government in Libya is the creation of political institutions to provide for the functioning of an effective democratic state.” 34See Mohammed El-Katiri, U.S. Army War College, State-Building Challenges in a Post-Revolution Libya vii (2012); See also General Assembly, Examination of Mediation Versus Military Intervention to Assist Regions Wracked by Conflict Focus of General Assembly Debate as It Enters Fourth Day, GA/11153 (Sept. 24, 2011) (“stressing the urgency of mass-scale institution building in a nation deprived of any real institutions or laws for over 50 years”). The same is true of Syria which, at the time of this article’s publication, is experiencing a bloody civil war in which a problematic and disunited rebel movement 35See Miloud Chennoufi, Opposition Syrienne: Composition et Responsibilités, Global Brief (June 17, 2013), . is locked in an intensely violent conflict with the Syrian state, 36See Adam Baczko, Gilles Dorronsoro & Arthur Quesnay, Carnegie Endowment for Int’l Peace, Building a Syrian State in a Time of Civil War 1 (2013). and therefore, against many of the same institutions which will be needed to govern in the conflict’s aftermath. In the midst of the destruction caused by this civil war, the vacuum left by the lack of state presence in rebel-held territory has given rise to ad hoc and unguided institution-building by competing non-state actors 37Id. at 4 (“[T]wo contradictory dynamics have been observed on the ground, and it is impossible to predict the ultimate influence they will have over the state-building process. First, after initially organizing into small groups, the armed opposition is becoming progressively more engaged in state building. In particular, a civil administration and a regular army are taking shape. Second, certain revolutionary movements such as Jabhat al-Nusra li-Ahl al-Sham (Support Front for the People of Syria) and the Turkish Kurdistan Workers’ Party (PKK)—through its local Syrian arm, the Democratic Union Party (PYD)—are building parallel institutions.”). —a phenomenon which serves to create “institutional multiplicity” and sow the seeds for future and protracted conflict. 38See Jonathan Di John, Conceptualising the Causes and Consequences of Failed States: A Critical Review of the Literature 33–34 (Crisis States Res. Ctr., Working Paper No. 25, 2008).

B. The Strategic Importance of Libya and Syria

The institutional deficits in Libya and Syria are of critical concern due to the vital strategic importance of these countries to the United States and the international community. Libyan territory has historically been viewed as an advantageous geostrategic location for projecting state power into the Mediterranean and neighboring countries, including Egypt, Sudan, Chad, Niger, Algeria, and Tunisia. 39See Jason Pack, Libya Is Too Big to Fail, Foreign Pol’y (Mar. 18, 2011), http://www.foreignpolicy.com/articles/2011/03/18/libya_is_too_big_to_fail. In addition, Libya is an important oil producer, accounting for almost a quarter of energy imports for several Western European countries. 40See Varun Vira & Anthony H. Cordesman, The Libyan Uprising: An Uncertain Trajectory, Ctr. for Strategic & Int’l. Stud. 14 (2011); see also Pack, supra note 39 (“What makes Libyan oil irreplaceable is its proximity to Europe, the ease of its extraction, and the sweetness of its crude. Because many refineries in Italy and elsewhere are built to deal with sweet Libyan crude, they cannot easily process the heavier Saudi crude that would inevitably replace a Libyan production shortfall.”). Syria’s location also makes it important from a geostrategic perspective. In that regard, French historian Olivier Roy has noted that “Syria is almost the only country where the so-called Arab Spring could change the geostrategic concept of the region.” 41See Steven Erlanger, Syrian Conflict Poses the Risk of Wider Strife, N.Y. Times (Feb. 25, 2012), http://www.nytimes.com/2012/02/26/world/middleeast/syrian-conflict-poses-risk-of-regional-strife.html?pagewanted=all. And, as noted with regard to both countries, the collapse of government institutions has served to create ungoverned spaces, which are fertile ground for terrorism and other forms of transnational criminality. 42See Clapper, supra note 13, at 14–15; see also Pack, supra note 39 (“If the West abandons the Cyrenaican rebels, it will not be a surprise to see more Cyrenaican fighters returning to Iraq by 2012. In fact, Libyans formed the third-largest fighting contingent in Iraq until U.S. counterterrorism cooperation with Qaddafi began to stem the flow in 2006. Similarly, during his détente with the West from 2003 until 2010, Qaddafi proved himself a reliable ally against the trans-Saharan networks of al Qaeda in the Islamic Maghreb.”).

In addition, both Libya and Syria are each experiencing destabilizing and significant displacement crises. The number of internally displaced persons in Libya at the end of August 2012 was between 65,000 and 80,000, “a population composed mostly of minorities, such as the Tawerghas, who are unwilling or unable to return to their areas of origin for fear of reprisals.” 43See United Nations High Comm’r for Refugees, Libya Country Profile, supra note 29. With regard to Syria, it was estimated that, as of April 2014, as many as 6.5 million Syrians have been internally displaced and more than 2.6 million Syrians have fled and are living as refugees in neighboring countries. 44European Comm’n, 10 April 2014: Syria–Internally Displaced Persons and Syrian Refugees in the Region (Apr. 10, 2014), available at http://ercportal.jrc.ec.europa.eu/ercmaps/2014_04_10_ECHO_Syria_IDPsRefugees.pdf; see also Jeremy M. Sharp & Christopher M. Blanchard, Cong. Research Serv., RL33487 Armed Conflict in Syria: U.S. and International Response (2013). Such large scale displacement can “create or perpetuate potentially destabilizing grievances” and, therefore, act as a driver of conflict. 45See Unruh & Williams, supra note 12, at 1. Elizabeth Ferris, co-director of the Brookings-LSE Project on Internal Displacement, notes, “[i]f history is any guide, the displacement crisis in Syria is likely to create further tensions and to last much longer than anyone now anticipates.” 46See Elizabeth Ferris, Syrian Displacement: The Human Consequence of the Continuing War, Brookings (July 24, 2012, 12:00 AM), http://www.brookings.edu/blogs/up-front/posts/2012/07/24-syria-ferris. Domestic civil law institutions regulating contracts, obligations, and property rights will be essential for addressing the issues attendant to such situations. 47See Dan E. Stigall, Courts, Confidence, and Claims Commissions: The Case for Remitting to Iraqi Civil Courts the Tasks and Jurisdiction of the Iraqi Property Claims Commission (IPCC), 2005 Army Law. 28 (Mar. 2005).

C. The Importance of Libyan and Syrian Civil Law

As noted, an essential facet of the institutional rebuilding of these two countries is their respective systems of civil law and the civil codes. 48See Peter F. Schaefer, Postwar Nation-Building, in Stability Operations and State-Building: Continuities and Contingencies 89 (2008) (“The rule-of-law must include both criminal and civil codes . . . .”). Robert I. Rotberg has emphasized in his discussion of state failure and state-building that “[a]n early necessity is an enforceable code of laws. The reintroduction of the rule of law can be done in stages . . . but war-ravaged citizens will tentatively support reconstruction efforts only once they are certain that legal safeguards and legal redress will be available.” 49See Robert I. Rotberg, When States Fail: Causes and Consequences 33 (2004). Reports from rebel-held areas within Syria already note the centrality of the Syrian civil code in debates among camps vying for influence. 50See Deborah Amos, Courts Become A Battleground For Secularists, Islamists In Syria, NPR (Mar. 14, 2013, 4:55 PM), http://www.npr.org/2013/03/14/174327447/courts-become-a-battleground-for-secularists-islamists-in-syria (noting that one Syrian attorney in rebel-held territory “joined the court system to try to insert Syria’s civil code into . . . proceedings.”) In Libya, likewise, issues over applicable property law are now at the heart of post-revolution legal disputes that threaten to cause greater instability and forestall needed investment. 51See Mathieu Galtier, After Qaddafi’s ‘Socialism,’ Libya Tries to Untangle Who Owns What, Christian Sci. Monitor (May 12, 2013), http://www.csmonitor.com/World/Middle-East/2013/0512/After-Qaddafi-s-socialism-Libya-tries-to-untangle-who-owns-what. An understanding of the civil law in these jurisdictions is, therefore, critical to informed policy decisions as they relate to proposed legal reforms and endeavors for which civil law is necessarily implicated, and to better determine how to facilitate durable legal institutions in the aftermath of conflict. 52See Schaefer, supra note 48, at 89, 91, 10203.

An understanding of domestic civil law in these countries is equally important for military decision-makers. In commenting on the range of options for a U.S. intervention in Syria, the Chairman of the Joint Chiefs of Staff, General Martin Dempsey, noted: “We have learned from the past 10 years, however, that it is not enough to simply alter the balance of military power without careful consideration of what is necessary in order to preserve a functioning state.” 53See Gordon Lubold, Breaking: Every Military Option in Syria Sucks, Foreign Pol’y (July 23, 2013), http://www.foreignpolicy.com/articles/2013/07/22/breaking_every_military_option_in_syria_sucks_dempsey_intervention_billion_dollars_a_month. And the guidance in the U.S. Army Field Manual for Stability Operations emphasizes that such initiatives must include an evaluation of the relevant host nation legal system 54See Headquarters, Dep’t of the Army, FM 3-07, Stability Operations paras. 6–34 (2008) (“The principles, policies, laws, and structures that form an [stability operations] program are rooted in the host nation’s history, culture, legal framework, and institutions.”). as reconstruction efforts should “build upon the existing legal framework. This may include common law, civil law, criminal codes, and traditional or religious law, as well as international law.” 55Id. paras. 6–91.

Despite their strategic importance and the potential volatility of the current situation, however, the political and legal structures of both Libya and Syria remain relatively unexplored in comparison with other countries in the Middle East and North Africa. 56See Asli U. Bali & Ziad Abu-Rish, Solidarity and Intervention in Libya, in The Dawn Of The Arab Uprisings: End Of An Old Order? 150, 153 (Bassam Haddad et al. eds., 2012) (“Unlike many other parts of the Middle East, Libya is a relatively unknown political context for outsiders whether they are progressive activists or conventional analysts.”). This lacuna in the literature is problematic as among the central issues confronting both Libya and Syria are those related to law and legal institutions; specifically, what form of law should be applied in the post-revolution aftermath. 57See Galtier, supra note 51. The fundamental question of what law is to govern—so vital to the exercise of sovereignty and to the outcome of critical disputes—is being debated by both internal and external actors. In both Libya and Syria, for instance, there is an increasing call for the implementation of Islamic law. 58See generally Piotr Zalewski & Tal Rifaat, Syria’s Rebel Judges Promise Sharia Justice with Mercy, Time (Aug. 10, 2012), http://world.time.com/2012/08/10/syrias-rebel-judges-promise-sharia-justice-with-mercy/; Libya Assembly Votes for Sharia Law, Al-Jazeera (last updated Dec. 4, 2013, 4:32 PM), http://www.aljazeera.com/news/africa/2013/12/libya-assembly-votes-sharia-law-2013124153217603439.html; Noah Feldman, The Fall and Rise of the Islamic State 9 (2012) (“The call for an Islamic state is therefore first and foremost a call for law—for a legal state that would be justified by law and govern through it.”). Legal reforms are also being anticipated by external actors, (both governmental and non-governmental), which have, in the case of Libya, called for the drafting of new property laws, 59See U.S. Agency For Int’l Dev., USAID Country Profile Property Rights & Resource Governance Libya 1 (2013) (“Donors could support the preparation of new policy in the areas of housing, commercial and industrial property, farm land, forest land, and real property generally that recognize, protect and enable the free exercise of private property rights. Donors could also support the drafting of laws, and assist in the establishment of land administration agencies, to implement these policies.”) [hereinafter USAID]; see also Galtier, supra note 51. and in the case of Syria, proposed the creation of “a Legal Commission whose task it is to review existing legislation to determine what should be kept, discarded, or amended.” 60See Pub. Int’l Law & Pol’y Grp., Planning For Syria’s “Day After”–Security, Rule of Law & Democracy 7 (2012). The prospect of legal reorganization—or reinvention—at such a fundamental level necessarily demands an assessment of the legal provisions and structures currently in place.

D. Civil Codes, Durability, and Post-Conflict Viability

A key objective of international actors seeking to create the conditions for peace and stability in the post-conflict environments of Libya and Syria will be that of facilitating or supporting durable legal institutions. On that score, Chibli Mallat, in his masterful text on Middle Eastern legal systems, notes, “civil codes in the Middle East are peculiar in two ways: They have proved more resilient than their public law counterparts, and modern civil codes function as stable institutions offering legal anchors which transcend political changes.” 61See Chibli Mallat, Introduction to Middle Eastern Law 3 (2007). A key aspect of the civil codes of Libya and Syria which is worthy of exploration are those elements which have combined to make them such durable legal institutions, standing out in stark relief against a backdrop of political change and volatility. Durability of state institutions—including legal institutions—is a critical aspect of restoring order and government functionality in post-conflict states. 62See Di John, supra note 38, at 33.

This Article posits that the Middle Eastern civil codes—and the civil codes of Libya and Syria in particular—have historically proven to be durable for many of the same reasons that portend well for their potential post-revolution viability. This, in part, is due to the historicity of Middle Eastern civil codes and the iconicity of civil codes in general. In addition, the post-revolutionary ethos of the French Civil Code from which many of their core legal principles are derived lends to the durability and post-revolution viability of these codes, as does the natural flexibility of continental civil codes that permits courts to adapt to changing circumstances without the need for extensive legislative reform. Moreover, as the analysis below notes, these civil codes are the beneficiaries of the masterful work of Abd al-Razzaq Al-Sanhūrī, a Middle Eastern comparativist. Al-Sanhūrī inscribed into his work, along with a sense of fairness and social utility, a degree of legal hybridity that has given these civil codes an aura of legitimacy by suffusing their continental civil law characteristics with traditional Middle Eastern and Islamic legal elements.

II. Comparative Legal Histories

Any discussion of legal systems in the Middle East and North Africa is inexorably linked to Ottoman history and the history of innovations and reforms undertaken by the Ottoman Empire. 63See George N. Sfeir, Modernization of the Law in Arab States: An Investigation into Current Civil Criminal and Constitutional Law in the Arab World 23 (1998) (“When legal modernization began in the 19th century, the Arab states were for the most part, in one form or another, territories of the Ottoman Empire.”). That empire, which—at its apogee—stretched across Europe, Asia, and Africa, once governed every country which is now associated with the Arab Spring. 64See Colin Imber, The Ottoman Empire, 1300–1650: The Structure of Power 1 (2002). Notably, in the eighteenth and nineteenth centuries, Ottoman Sultans, wishing to emulate European states, “began to enact various judicial reforms including legal codifications. These Ottoman codifications were mainly adaptations of French codifications and incorporated French substantive law.” 65See Dan E. Stigall, Iraqi Civil Law: Its Sources, Substance, And Sundering, 16 J. Transnat’l L. & Pol’y 1, 7 (2006). An exception was the Ottoman Land Code of 1858—a code which maintained Islamic property law categories. 66See Stanley Fisher, Ottoman Land Laws 1 (1919). Similarly, in the areas of contracts and torts, the Ottoman government chose to attempt a codification of Islamic law of the Hanafi school, enacted in 1869, called the Mejelle. 67See Mallat, supra note 61, at 242, 245, 248–49. The Mejelle served as a civil code throughout the Ottoman Empire—and even after its collapse—until it was replaced at various stages as the former Ottoman provinces were colonized by European countries or achieved independence. As the analysis below demonstrates, Ottoman law would have a lasting impact upon both the Libyan and Syrian civil law systems.

Another important commonality between the legal systems of Libya and Syria is the influence of Al-Sanhūrī’s work on each code. Considered to be “the Arab World’s foremost comparative lawyer,” 68See Amr Shalakany, Sanhuri and the Historical Origins of Comparative Law in the Arab World (Or How Sometimes Losing Your Asalah Can be Good for You), in Rethinking the Masters of Comparative Law 152 (Annelise Riles ed., 2001). Sanhūrī has been described as “the legendary arch-codifier who drafted many a law for many a newly independent Arab state.” 69Id. Sanhūrī was part of an intellectual movement in the Middle East that simultaneously identified with European countries and traditions while maintaining a nationalistic ideology that valued Middle Eastern culture and identity. 70See Lama Abu-Odeh, Modernizing Muslim Family Law: The Case of Egypt, 37 Vand. J. Transnat’l L.1043, 1092–93 (2004). His work is characterized by an eclectic blend of European and Islamic legal principles and a preoccupation with incorporating the Islamic legal tradition and existing Middle Eastern frameworks, some of which were Ottoman law, into modern civil codes. He is best known as the drafter of the Egyptian code, which was enacted in 1949 and the Iraqi Civil Code, which entered into force in 1953. 71See Stigall, supra note 65, at 11, 13. His codifications became a surrogate for the spread of the French legal tradition in Arab countries. 72See Nabil Saleh, Civil Codes of Arab Countries: The Sanhuri Codes, 8 Arab L.Q. 161, 162–63 (1993). Most notably, however, for purposes of this Article, is Sanhūrī’s influence on the Libyan and Syrian civil codes. Commentators agree that both were copied from Sanhūrī’s work with minor changes, 73See Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) 57 (2007). Ziadeh states that Sanhūrī actually drafted the Syrian Civil Code. See Farhat J. Ziadeh, Property Law in the Arab World: Real Rights in Egypt, Iraq, Jordan, Lebanon, Libya Syria, Saudi Arabia and the Gulf States 14 (1979). However, as discussed more fully in this article, the historical circumstances of the Syrian code’s implementation, quickly enacted shortly after a coup d’etat, make Sanhūrī’s direct authorship unlikely. though commentators note that “[t]he draft Libyan Code was submitted to Sanhuri who approved of it.” 74See Saleh, supra note 72, at 163. While neither code can fully claim direct authorship by Sanhūrī, each—being drawn directly from his work—is an echo of Sanhūrī and each contains much of the substance and structure that are the hallmarks a Sanhūrī code. In that regard, each is an interesting exploration of how newly independent Middle Eastern countries embraced Sanhūrī’s foundational legal texts and then, to differing degrees, reinterpreted them.

Another commonality between the Libyan and Syrian civil codes that is worthy of mention is that each was implemented during the early days of a newly independent country’s formation. As explained in more detail below, each represents an effort by a fledgling government to define its most basic features in the post-Ottoman world. As such, each is etched into the legal history of Libya and Syria as a founding document and a reminder of the vision that once existed for these countries and their place in the region.

A. Libyan History in Brief

Libya consists of three primary regions: Tripolitania, Cyrenaica, and Fezzan, 75See Helen Chapin Metz, Fed. Research Div. Library of Cong., Libya: A Country Study 3 (1987). each of which was subject—in varying degrees—to Ottoman authority prior to the Italian invasion in 1911. 76Id. at 20–24. Vandewalle notes that thirty-three Ottoman representatives ruled the territories between 1835 and 1911, “the high number indicative of the difficulty the Sublime Porte had in finding officials willing to devote their careers to managing territories that had consistently proven rebellious, difficult to govern, and economically of little importance to Constantinople.” 77See Dirk Vandewalle, A History of Modern Libya 17 (1st ed., 2006).

In 1911, Italy invaded the Ottoman possessions of Tripolitania, Cyrenaica, and Fezzan and, over the next decade, exerted control over the three regions. 78Id. at 24. The problematic era of Italian colonization, marked by rebellion and bloodshed, came to an end with Italy’s defeat at the end of World War II. 79 Id. at 38. Thereafter, Britain, France, the United States, and the Soviet Union agreed that Italy would need to relinquish sovereignty over its North African colonies, though they could not agree as to what should be done with them thereafter. 80Id. Finally, on November 21, 1949, a resolution on Libyan independence was adopted in the U.N. General Assembly, stating that Libya would become independent no later than January 1, 1952. 81Id. at 39. In accordance with this resolution, on December 24, 1951, King Idris al-Sanusi announced the creation of the United Kingdom of Libya. 82Id. at 43.

Upon independence, Libya adopted a federal system of government that left wide powers to the different provinces, though all linked to a central government under the ineffective rule of King Idris, the Amir of Cyrenaica. 83Id. at 47–48. That monarchy was brought to an end on September 1, 1969 in a bloodless coup led by a twenty-seven year old military officer named Mu’ammar al-Qaddafi. 84Id. at 79.

1. Libya’s Civil Code

The Libyan Civil Code entered into force in 1954 and—although Qaddafi enacted much legislation that targeted various areas that are within the civil code’s purview—technically remained applicable throughout the Qaddafi era. 85See Mustafa El-Alem, Libya, 1 Y.B. Islamic & Middle E. L. 225, 230 (1994). Writing in the 1950s, Egyptian lawyer Gamal Moursi Badr noted that among the first tasks undertaken by the Libyan Federal Government, in the immediate wake of Italian colonization and occupation by the Allied forces in the wake of World War II, was the creation of new judicial and legislative systems. 86See Gamal Moursi Badr, The New Egyptian Civil Code And The Unification Of The Laws Of The Arab Countries, 30 Tul. L. Rev. 299, 303 (1955–1956). This era of legal reinvention entailed the creation of new legal codes, which found inspiration in neighboring Egypt and the eclectic legal reforms inspired by Sanhūrī’s comparativist approach.

In so doing Libya naturally turned to its immediate neighbor, Egypt, with which it shares a common historical, cultural and religious background as well as a common frontier. Egyptian legislation was the source of not only the Libyan civil code but also of all the other codes promulgated by the Libyan Government: commercial, penal and civil and commercial procedure. 87Id.

Commentators have, thus, noted that Libyan civil law is a “mixed” system characterized by the French and Egyptian civil codes as well as Islamic law. 88See El-Alem, supra note 85, at 225. That civil code, based on the Franco-Egyptian model, has technically remained in force until the present day. 89See Carnegie Endowment For Int’l Peace, Arab Political Systems: Baseline Information and Reforms–Libya 5 (2008), available at carnegieendowment.org/files/Libya_APS.doc.

It must be noted that, throughout the decades during which Qaddafi ruled Libya, he would have his own dramatic legal impact (all of it invariably negative) enacting a series of ill-considered laws, which served only to muddle and confuse Libyan law. For instance, Qaddafi issued Law No. 4 of 1978 dictating eviction and expropriation in the name of public interests. 90See USAID, supra note 59, at 4. Similarly, in his Green Book—a rambling, incoherent compilation of cabbalistic aphorisms—Qaddafi wrote, “No one has the right to build a house in addition to his own dwelling, or the dwellings of his heirs, for the purpose of leasing it to others, because a house represents a human need.” 91See M. Al Gathafi, The Green Book 38 (Ithaca Press 2005). Other laws also effectively swept aside the provisions of the Libyan Civil Code in favor of relatively incoherent and economically damaging edicts—especially in the realm of property law. 92See USAID, supra note 59, at 3.

Property rights were highly insecure under the Qadhafi regime, and the regime’s approach to property governance was defined by its inconsistency. The Libyan government regularly confiscated private land, some of which was redistributed to the landless or to political favorites. A series of successive redistribution efforts culminated in the abolition of private property ownership in 1986, leaving Libyans with only transferable use-rights to land. This led to a rise in social tension and a lack of investor confidence. 93Id. at 1.

Such incoherent proclamations from a position of authority only did a disservice to the people that were forced to endure them and remain the source of persisting conflict and confusion in the aftermath of the Libyan revolution. 94See generally Galtier, supra note 51. The rules produced by such nonsensical law-mongering, imposed by a dictator without regard to reason, however, never take on a truly organic character as they fail to appropriately order civil life and, instead, become merely another burden to be borne by a population that has become hardened to abuse. Moreover, the dictatorial character of such legislation has a deleterious impact on legal culture and turns judges from principled jurists into the blind executors of political edicts. Ultimately, devoid of substance, such laws collapse with the regime that promulgates them. Thus, among the first legal acts in post-revolution Libya was the 2011 Constitutional Declaration which confirms the inviolability of private property rights. 95See Libya Interim Transitional Nat’l Council, Draft Constitutional Charter For the Transitional Stage: The Constitutional Declaration, 7 Feb. 2011, art. 16. Thereafter, it notes that “[a]ll the provisions prescribed in the existing legislations shall continue to be effective in so far as they are not inconsistent with the provisions hereof until they are amended or repealed.” 96Id. art. 35. The focus of this Article, therefore, will be on the pre-Qaddafi legislation that must now be called upon to address current legal problems that must be quickly addressed now that Qaddafi and his Green Book have been forever buried. 97See Philip K. Hitti, Syria: A Short History 213 (1959).

B. Syrian History in Brief

The territory that is today associated with modern Syria was claimed by the Ottoman Empire in 1516 when the Turkish Army, under the command of Selim I, defeated the Mamluks north of Aleppo and then took Damascus. Selim I, thereafter, saw to the region’s administrative and legal reorganization. 98Id. at 214.

For purposes of taxation he empowered a commission to draw up a cadastre of the whole land, reserving much of the fertile Biqa plain and the rich valley of the Orontes to the crown. The Mamluk procedure of farming out tax collection to the highest bidder was, of course, retained. The Hanafite rite of jurisprudence, preferred by the Ottomans, was given official status in Syria. After a brief period of turbulence the land was divided into three provinces (vilayets or pashaliks)—Damascus, Aleppo and Tripoli—under Turkish governors or pashas. 99Id.

Syria would remain under Ottoman control for the next four centuries. Commentators note that this period of Ottoman rule had a marked influence on Syrian legal development. 100Id. at 213, 228, 237. Ottoman control only ceased in October 1918, when Arab and British troops advanced into Syria and captured Damascus and Aleppo. 101See Fed. Research Div., Library of Congress, Syria: A Country Study 18–19 (Thomas Collelo ed. 3d ed., 1988) [hereinafter Syria: A Country Study]. Thereafter, in 1920, Syria became a League of Nations mandate under French control. 102Id. at 20. In 1940, with the fall of France during World War II, Syria came under the control of Vichy France, but only until the British and Free French occupied the country. 103Id. at 24. Control of Syria then passed to Free French authorities, a period which saw the assertion of greater control over domestic affairs by a nascent Syrian government. 104Id. at 25. In January 1945, the Syrian government announced the formation of a national army and, in March of that same year, became a charter member of the United Nations. 105Id. at 26. Finally, on April 17, 1946, under increasing pressure from Allied nations and the pressure of a U.N. Resolution which called on the French to depart, Syria obtained its independence. 106Id.

1. The Syrian Civil Code

Throughout its early history and into its independence, the Ottoman Mejelle was the applicable civil law in Syria. 107See Razi A. Diab, Religion and the Law in Syria, Arab cr. Int’l Humanitarian l. & Hum. Rts. Educ., available at http://www.acihl.org/article.htm?article_id=26. This changed in 1949 after a military coup when the Chief of Staff of the Syrian Army, Colonel Husni az Zaim—an officer of Kurdish descent with a problematic military record and who had previously serviced in the Ottoman army 108See Elizabeth Whitman, The Awakening of the Syrian Army: General Husni al-Za’im’s Coup and Reign, 1949: Origins of the Syrian Army’s Enduring Role in Syrian Politics 14 (Apr. 4, 2011) (unpublished Senior Thesis, Columbia University) (“Of Kurdish descent, he fought in the Ottoman army and was an officer in the troupes spéciales, the French mandate internal security forces. Although one of the army’s main grievances against civilian politicians was corruption, Za’im had no sparkling track record himself. In 1941, Vichy authorities entrusted him with 300,000 Syrian pounds to carry out guerilla attacks against Free French forces. Instead of carrying out orders, he stole the money, was arrested and brought to trial, and was sentenced to ten years of hard labor. At the end of the war he was released and reinstated in the Syrian army, but only after what Fansah claimed as “numerous interferences” on his own part. Even after Za’im’s reinstatement he was dissatisfied with his placement and rank, insisting on a transfer to Damascus.”). —staged a coup against the Syrian government. 109See Syria, A Country Study, supra note 101, at 27; see also Patrick Seale, The Struggle for Syria: A Study of Post-War Arab Politics, 1945–1958 passim (1987). Although Zaim’s rule over Syria would be short-lived, during his time in power he implemented an ambitious reform agenda that included the implementation of a new legal framework. 110Id. Notably, in 1949 Zaim directed the promulgation of the Syrian Civil Code by legislative decree No. 84. 111See Diab, supra note 107. 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.” 112Id. Nabil Saleh notes the abruptness of the Syrian Civil Code’s adoption:

Although the Syrian Civil Code of 1949 is a rather faithful copy of the Egyptian one, it is more a retreat from the Shari’a than an extension of its scope; that is because until 1949, the Majalla served as a civil code and necessarily left deep marks on Syria’s legal system, marks that an unceremonious decision crossed out. 113See Saleh, supra note 72, at 161, 163.

A review of the Syrian Civil Code, however, reveals that various aspects of Ottoman law were retained. As the analysis which follows demonstrates, this is especially true in the area of property law—an area in which Syria’s Ottoman roots are notably pronounced.

III. A Comparative Analysis of Civil Codes in Force in Libya and Syria

A. Structure

Both the Libyan and Syrian civil codes share the same basic structure. Each begins with a preliminary title containing general dispositions regarding law, sources of law, application of the law, and general dispositions regarding the legal definition of persons as well as the classification of things and property. 114See Syria Code Civil [Syrian Civil Code], Decret No. 84 du 15 mai 1949 (Syria); Lybian Code Civil [Libyan Civil Code], Jarida al-Rasmiyah, 13 Feb. 1954 (Libya). Thereafter, both codes are divided into two parts and four books. The first part of each addresses obligations or personal rights and contains similarly named subdivisions: Book I (Obligations in General) and Book II (Specific Contracts). 115See Syrian Civil Code, arts. 92–767; Libyan Civil Code, arts. 89–810. The second part of both codes is entitled “Real Rights” and contains Books III (Principal Real Rights) and Book IV (Accessory Real Rights). 116See Syrian Civil Code, arts. 768–1130; Libyan Civil Code, arts. 811–1151. This structural format—a mark of Sanhūrī’s codal design—mirrors that of the Egyptian and Iraqi civil codes.

B. Sources of Law

The Libyan and Syrian civil codes contain almost identical provisions setting forth the sources of law. Article 1 of the Libyan Civil Code governs the sources of law and dictates that “[p]rovisions of law govern all matters to which these provisions apply in letter and spirit.” 117Libyan Civil Code, art. 1, para. 1. In the absence of a legal provision, the Libyan civil code requires courts to adjudicate matters “in accordance with the principles of Islamic law.” 118Id. art. 1(2). In the absence of an Islamic rule on a particular matter, the Libyan civil code requires courts to look to “prevailing custom,” and in the absence of any custom, “to the principles of natural law and the rules of equity.” 119Id. (citation omitted).

The Syrian Civil Code holds, likewise, that its legislative provisions govern all matters to which they apply in letter and spirit. 120Syrian Civil Code, art. 1. When no such provision applies, judges are to be governed by the principles of Islamic law. 121Id. When no provision of Islamic law is applicable, Syrian judges are to be guided by prevailing custom and, when no custom is applicable, by natural law and the laws of equity. 122Id. In both civil codes, therefore, the legislative provisions of the code are primary and, if no such provision addresses the matter in question, then a court may look to Islamic law. Thereafter, a Syrian court may look to equitable principles in crafting a solution.

This hierarchy of sources of law is shared by other civil codes in the region. For instance, the Algerian Civil Code states that the written provision of the code apply, but in the absence of a legal provision, the judge “se prononce selon les principes du droit musulman et, à défaut, selon la coutume.” 123See Algerian Civil Code, art. 1. Other civil codes in the Arab world—such as Egypt and Iraq—differ in that Islamic law is given a less prominent role in those codes. The Egyptian Civil Code, for instance, states that its provisions “govern all matters to which [they] apply in letter or in spirit,” 124See Law No. 131 of 1948 (Civil Code), Al-Jarida Al-Rasmiyya, 29 July 1948, art. 1 (Egypt). and that, in the absence of an applicable provision of law, the judge “will decide according to custom and in the absence of custom in accordance with the principles of [Islamic] law.” 125Id. Under such a formulation, Islamic law can only become a viable source of law in the absence of both an applicable code article and an identifiable custom. The Iraqi Civil Code, similarly, states that the written provisions of the civil code apply 126See Law No. 40 of 1951 (Civil Code), art. 1(1) (Iraq) [hereinafter Iraqi Civil Code]. and, in the absence of such a provision, courts are to look to “custom and usage.” 127Id. art. 1(2) With regard to Islamic law, the Iraqi Civil Code permits it as a source of law, but as a tertiary source—and even then only insofar as courts apply “the principles of Islamic Shari’a which are most consistent with the provisions of this Law but without being bound by any specific school of thought[.]” 128Id. In Libya and Syria, however, Islamic law is cast as the legal source to which judges must first look in the absence of an express codal provision. 129See Libyan Civil Code, art. 1(2); Syrian Civil Code, art. 1.

It is worth noting that Islamic law is also referenced in the Libyan and Syrian constitutions—and in ways that do not clearly comport with the provisions of their respective civil codes. Libya’s General National Congress held elections in July 2012 and is currently attempting to move forward with the creation and adoption of a new constitution. 130See Karim Mezran & Duncan Pickard, Libya’s Constitutional Process: Moving Forward?, Atlantic Council (Apr. 22, 2013), http://www.acus.org/viewpoint/libya%E2%80%99s-constitutional-process-moving-forward. In the interim, Libya’s “Draft Constitutional Charter for the Transitional Stage” states that “Islam is the Religion of the State and the principal source of legislation is Islamic Jurisprudence (Shari’a).” 131See Draft Constitutional Charter, supra note 98, art. 1. Similarly, Article 3 of the Syrian Constitution states, “[t]he religion of the President of the Republic is Islam; Islamic jurisprudence shall be a major source of legislation.” 132See Constitution of the Syrian Arab Republic, Feb 26,2012, art. 3. These sorts of provisions which require legislation to conform to Islamic law are known as “repugnancy clauses.” 133See Haider Ala Hamoudi, Repugancy in the Arab World, 48 Willamette L. Rev. 427, 427 (2012).

Professor Haider Ala Hamoudi has written extensively on repugnancy clauses and their interaction with legal codes in the Arab world. Professor Hamoudi demonstrates that, due to the difficulty in regulating the myriad legal complexities of a modern state while simultaneously ensuring that each rule has a basis in Islam, governments in the Arab world—and even Islamist movements—tend to permit laws rooted in secular sources to persist. In his review of multiple countries in the region with such repugnancy clauses, including Tunisia and Egypt, Hamoudi finds that “the law of the state is largely immunized from any sort of review concerning its Islamicity.” 134Id. at 450.

Logistically, it is difficult to imagine a court examining a complex piece of legislation, trying to find a source for each and every provision in it, and then making a determination as to whether or not the legislation as a whole “principally” derives from shari’a or any other source. Moreover, not only is such an approach logistically difficult, it also would almost surely result in the invalidation of large amounts of vitally important legislation. The fact is that in drafting most modern law, from securities laws to bankruptcy laws, the vast compendia of norms and rules derived by jurists, mostly from the medieval era, that collectively comprise the shari’a have so little to offer that they cannot meaningfully be considered the “source” of the law. The true sources of these laws are European and American models transplanted into the Arab world. As a result, it is not a surprise that commentators have in various contexts dismissed the shari’a source provision in Muslim state constitutions as “chiefly symbolic” and unlikely to meaningfully constrain legislative activity. 135Id. at. 430–31 (citations omitted).

Accordingly, as a general rule, such constitutional provisions do not serve to efface the primary role of the positive law expressed in civil codes. Moreover, given the style of drafting of a civil code, there are few situations to which the written provisions would not be applicable. This is because of the drafting style of civil codes based on the French model, the architects of which “clearly realized that even the most ingenious legislator could not foresee and determine all the possible problems which might arise and that therefore room must be left for judicial decisions to make the law applicable to unforeseen individual cases and suited to the changing circumstances of society.” 136See K. Zweigert & H. Kotz, An Introduction to Comparative Law 74 (Tony Weir trans., 3rd ed., 1998). Accordingly, civil codes are typically drafted in more general terms, setting forth general rules and maxims that can be applied by analogy to a broad array of circumstances. 137Id. at 91. As a result of this synoptic style of drafting, the instances in which a court must stray beyond the written provisions of a civil code are rare. Commentators have noted, therefore, that allusions to Islamic law as a subsidiary source of law in Middle Eastern civil codes are “more sentimental than practical.” 138See Bechor, supra note 73, at 83.

The references to Islamic law in these civil codes may certainly, however, be of greater import when dealing with select issues that are more Islamic in nature. For instance, various property rights that have traditionally been regulated by Islamic legal principles are occasionally noted as being governed by Islamic law. The Libyan Civil Code, for instance, provides that “[t]he establishment of heirs, of their hereditary shares and the devolution of the property of the estate on them is governed by Islamic law.” 139Libyan Civil Code, art. 879(1). And, in discussing the property right called mugharisah, the Libyan Civil Code expressly states that “[r]ecourse shall be had to Islamic law as to ‘mugharisah’ in the absence of other applicable provisions.” 140Id. art. 1012. Islamic law is, therefore, far from irrelevant to the Libyan and Syrian civil codes—though it is clearly not dominant. Moreover, as the analysis below will demonstrate, the positive law of both the Libyan and Syrian civil codes, though chiefly drawn from continental civil law, is shaped and informed by Islamic law and Middle Eastern legal concepts. And, as one would expect with legal texts derived from Sanhūrī’s work, each contains provisions that are designed to be compatible with the legal expectations of a Middle Eastern polity and to function within that geographic and cultural context.

Substantive legal concerns aside, however, the references to Islamic law in these civil codes—and the presence of other Islamic and Ottoman elements—may serve another purpose in that such references capacitate the durability and persisting viability of these legal institutions. This is because of the overwhelming identification of these two countries with the Islamic faith. Arabic-speaking Muslims of mixed Arab and Berber ancestry make up ninety percent of the Libya’s population. 141Country Profile: Libya: April 2005, Libr. Cong.: Fed. Res. Div., available at http://lcweb2.loc.gov/frd/cs/profiles/Libya.pdf (last visited Feb. 25, 2014). Similarly, in Syria, the largest religious group is Sunni Muslim, “of whom about 80 percent are native Syrian Arabs, with the remainder being Kurds, Turkomans, Circassians, and Palestinians.” 142Syria: A Country Study, supra note 101, at 92. By permitting the possibility of some limited recourse to Islamic law and, as demonstrated more fully below, incorporating some traditional rules and property devices, these civil codes may acquire an organic quality and an aura of legitimacy that inures to their receptivity by a largely Muslim population. This, in turn, translates into greater durability. As Emperor Haile Selassie I wrote in the preface of the Ethiopian Civil Code, “[n]o law . . . can ever be effective if it fails to reach the heart of those to whom it is intended to apply and does not respond to their needs and customs and to natural justice.” 143See Civil Code, preface v (Eth.) (1960). Allowing recourse to Islamic law as a subsidiary source in these civil codes contributes to the maintenance of a modern, sophisticated civil law system while simultaneously permitting at least nominal adherence to Islamic values and, thus, facilitating a sense of popular ownership.

C. Contracts and Obligations

Early civil codes in the Middle East, derived from the French Civil Code of 1804, “disfavored judicial or legislative interference in the freedom of contracts.” 144See Bechor, supra note 75, at 147. Those codes maintained a more laissez-faire approach to contracts and obligations. 145Id. at 147–48. In drafting the Egyptian Civil Code, however, Sanhūrī adopted a different approach—one consistent with French law in the early twentieth century 146Id. at 148. —which permitted the law to intervene in contractual relationships to a greater degree to provide certain societal protections. 147Id.

The first of the doctrines to be imported was the doctrine of the abuse of right (al-ta’assuf fī ´isti’mal al-haqq). Four key doctrines of justice from Continental law were added: exploitation and discriminatory conditions in uniform contracts—at the time of making the contract; unforeseen circumstances and the obligation to observe the contract in good faith—in implementing the contract. Together, they composed the altruistic and moral purpose of the Code, which extended a supportive and protective hand to weaker members of society. 148Id. at 149.

Those features incorporated by Sanhūrī into the Egyptian Civil Code were, likewise, maintained in the Libyan and Syrian replications of his work. A review of each of those civil codes reveals civil law systems that create legal space for contractual freedom but with protections designed to discourage unfairness and exploitation.

1. Contracts and Obligations in the Libyan Civil Code

Article 89 of the Libyan Civil Code states that “a contract is created, subject to any special formalities that may be required by law for its conclusion, from the moment that two persons have exchanged concordant intentions.” 149Libyan Civil Code, art. 89. Such intentions by parties may be made “verbally, in writing, by signs in general use,” and by conduct which “leave[s] no doubt as to its true meaning.” 150Id. art. 90. A declaration of intention is effective “from the time that it comes to the knowledge of the person for whom it was intended,” and that person is presumed to know of the declaration of intention “from the time that it reaches him.” 151Id. art. 91. The Libyan Civil Code allows a party to a contract to apply for nullification of the contract when that party has committed a “fundamental error”so long as the other party “had similarly committed the same error or had been cognizant of it or could have easily discovered it.” 152Id. art. 120.

If a time limit is fixed for acceptance, the person making the offer is “bound to maintain his offer until the expiration of the time limit.” 153Id. art. 93(1). If an offer is made to a person present without a time limit being fixed, the offeror is released from the offer “if it is not accepted forthwith.” 154Id. art. 94(1). Notably, however, a contract is considered concluded—even if acceptance is not indicated immediately—if the offeror does not withdraw and a “declaration of acceptance is made before the end of the meeting at which the contract was being framed.” 155Id. art. 94(2).

As a means of inhibiting exploitation, Libyan civil law recognizes the vices of consent: mistake, 156Id. arts. 121–24. fraud, 157Id. arts. 125–26. and duress. 158Id. arts. 127–28. This facet of Libya’s code is derived from continental civil law which has traditionally held that “le dol, l’erreur et la violence sont les trois causes qui vicient la volonté.” 159See Marcel Planiol, Traité Élémentaire de Droit Civil Conforme aux Programme Officiel des Facultés de Droit 165 (1923). With regard to the first of these categories, according to the Libyan civil code, “[a] mistake is an essential mistake when its gravity is of such degree that, had it not been committed, the party who was mistaken would not have concluded the contract.” 160Libyan Civil Code, art. 121(1). Mistakes can bear either upon the quality of the contract’s essential purpose or upon the identity or “qualities” of a party to the contract. 161Id. When a party’s identity or quality is asserted as a mistake, the mistaken characteristic must have been “the principal factor in the conclusion of the contract.” 162Id. art. 121(2)(b). Mere errors in calculation or clerical errors do not impact the validity of a contract, but they must be corrected. 163Id. art. 123. Furthermore, a party who has committed a mistake cannot take advantage of that mistake “in a manner contrary to the principles of good faith.” 164Id. art. 124(1).

A contract may also be declared void because of fraudulent misrepresentation when a party’s fraud induced the deceived party into contracting. 165Id. art. 125. Fraud by a third party can be a basis for voidance of a contract if it is established that a contracting party was aware of the fraud or should have been aware of the fraud. 166Id. art. 126.

Additionally, a contract may be voidable because of duress “if one of the parties has contracted under the stress of justifiable fear unlawfully instilled in him by the other party.” 167Id. art. 127(1). Such fear is justified, according to the Libyan code, when the party asserting duress has been led to believe that he or she is in “serious and imminent danger to life, limb, honour or property . . . .” 168Id. art. 127(2). The fear does not have to be personal but can be fear for a third party. Id. Duress is viewed in light of a victim’s age, sex, social position, health, and any other factor that could serve to aggravate the duress. 169Id. art. 127(3). As with third party fraud, duress caused by a third party is actionable only if a contracting party knew or should have known of the duress. 170Id. art. 128.

The Libyan Civil Code also contains provisions permitting the rescission of a contract due to lesion. The concept of lesion, which is also derived from continental civil law and is of early Roman origin, is one that holds that a sale may be rescinded because the law assumes that, due to the insufficient price being paid for the thing, the consent of the party selling the thing was not truly voluntary. 171See Planiol, supra note 159, at 165. Planiol notes that this cause for rescission of a contract—which the Roman Emperor Justinian attributed to Diocletian 172Id. at 529. —was initially limited to certain situations such as contracts entered into by minors and the sale of immoveables. The Libyan Civil Code, however, expands this right to all contracts: 173See Libyan Civil Code, art. 129.

If the obligations of one of the contracting parties are out of all proportion to the advantages he obtains from the contract or to the obligations of the other contracting party and it is established that the party who has suffered [the] prejudice entered into the contract only as a result of the other party exploiting his obvious levity of character or his unbridled passion, the Judge may, at the request of the party so prejudiced, annul the contract or reduce the obligations of such party. 174Id. art. 129(1).

An action for annulment of a lesionary contract must, however, be brought within a year from the date of the contract. 175Id. art. 129(2). In the case of a contract entered into for consideration, “the other party may avoid annulment proceedings by making such an offer as the Judge may consider adequate compensation to cover the lesion.” 176Id. art. 129(3).

Other matters of public policy may also lead to the nullification of contracts. For example, “[a] contract is void if its object is contrary to public policy or morality.” 177Id. art. 135. In any event, “[w]hen a contract is rescinded the parties are [to be] reinstated to their former positions, [but i]f reinstatement is impossible, [then] the court may award damages” to the parties who have suffered injury. 178Id. art. 162.

2. Contracts and Obligations in the Syrian Civil Code

The Syrian Civil Code contains a similar legal regime for contracts. Under Syrian law, a contract is formed when two parties exchange their concordant intentions subject to the formalities required by law for the formation of contracts. 179See Syrian Civil Code, art. 92. One may express his or her intention by word, writing, signs in general use, and by conduct which, under the circumstances, leaves no doubt as to the true intention of the party. 180Id. art. 93(1). The expression of intention by a party may be tacit in those cases in which the law does not require that the intention be expressed. 181Id. art. 93(2).

If a time period for acceptance is fixed, the offeror is bound by his or her offer until the expiration of that time period. 182Id. art. 94(1). If, however, during a meeting to negotiate a contract, an offer is made without fixing a time period, the offeror is generally not bound by the offer if acceptance is not immediate. 183Id. art. 95(1). However, the contract is considered to have been concluded when—even if acceptance is not immediate—in the interval between offer and acceptance, nothing indicates that the offeror has retracted the offer, so long as acceptance takes place before the end of the meeting. 184Id. art. 95(2).

Like its Libyan corollary, the Syrian Civil Code also recognizes the traditional civil law concept of the vices of consent. For instance, the Syrian Civil Code permits that a contract may be annulled by a party to a contract who made an essential error—so long as the other party also made the same error, had knowledge of the error, or could have easily realized the error. 185Id. art. 121. An error can be considered essential under Syrian law when its gravity is to such a degree that, if the error had not been made, the mistaken party would not have concluded the contract. 186Id. art. 122(1). Likewise, an error is considered essential when it bears upon the quality of a thing that the parties consider to be significant, or which must be considered significant according to the conditions in which the contract was concluded. 187Id. art. 122(2). An error is also considered essential when it bears upon the identity of a quality of a party to the contract, if that identity or that quality was a principal cause for concluding the contract. 188Id.

A contract may also be annulled because of fraud when the fraudulent actions by a party to the contract—or by that party’s representative—are such that the other party would not have entered into the contract except for the deception. 189Id. art. 126(1). A party who is the victim of fraud by a third person cannot demand annulation of the contract unless it is established that the other party to the contract knew or should have known of the fraud. 190Id. art. 127.

In addition, Syrian law permits that a contract can be annulled because of duress if one of the parties entered into the contract under the influence of fear wrongfully caused by the other party. 191Id. art. 128(1). Such duress is a cause for rescission of the contract when the party invoking duress has a belief that, under the circumstances, a grave and imminent danger is posed to the life, person, honor, or possessions of the party or a third person. 192Id. art. 128(2). When the duress is exerted by a third party, the victim may not demand rescission of the contract unless it is established that the other party to the contract knew or should have known of the duress. 193Id. art. 129.

Finally, the Syrian Civil Code also contains provisions prohibiting lesionary sales. Those provisions state that, if the obligations of one of the contracting parties are out of proportion with the advantage obtained under the contract or the obligations of the other contracting party, and the disadvantaged party entered into the contract only due to the exploitation of his or her “notorious frivolity or unbridled passion,” the judge may, upon a demand from the aggrieved party, annul the contract or reduce the obligations of the contracting party. 194Id. art. 130(1). Such an action must be brought within a year from the date of the contract’s conclusion. 195Id. art. 130(2). In a contract for a pecuniary interest, however, “the other party may avoid annulment of the contract by offering supplemental payment that the judge finds sufficient to overcome the disparity” in the contract. 196Id. art. 130(3).

3. Analysis of Libyan and Syrian Codal Provisions

An analysis of the Libyan and Syrian provisions on contracts and obligations, therefore, reveals very similar legal landscapes. Each provision envisions the formation of an enforceable contract when two parties exchange their intent to be bound. Each code, however, also contains provisions protecting a party who has entered into a contract by error, trick, or force. Likewise, both codes contain provisions protecting victimized persons who entered into lesionary contracts—maintaining a right for rescission under lesion that is more expansive than that found in continental civil law.

Other appreciably modern characteristics of both codes include their socially inclusive aspects. Notably, neither the Libyan nor Syrian code contains restrictions on a right to contract based on an individual’s gender or social group. Anyone may enter into a contract so long as he or she has the capacity to contract. Accordingly, both the Libyan and Syrian provisions on contracts and obligations can be viewed as maintaining the “egalitarian spirit” described by Planiol 197See Planiol, supra note 159, at 33. in his commentaries on the French Civil Code and which Sanhūrī sought so intently to maintain in his Middle Eastern codifications. 198See Bechor, supra note 73, at 323.

In the post-revolution context, the significance of the fact that both the Libyan and Syrian codes contain relatively modern, well-formulated provisions for the formation and enforcement of contracts cannot be understated. Aside from their natural function as a “conflict dampener” in post-conflict environments, 199See Paris, supra note 16, at 168. sound legal provisions for the creation and enforcement of contracts have an essential economic role that also promotes stability. Nobel laureate Douglass North has posited that “the inability of societies to develop effective, low-cost enforcement of contracts is the most important source of both historical stagnation and contemporary underdevelopment in the Third World.” 200See Douglass C. North, Institutions, Institutional Change and Economic Performance 54 (1990). For this reason, commentators have noted that “[t]he establishment of a legal and regulatory environment where private transnational exchanges can safely take place has become essential for developing countries to attract further investment, as well as to promote the development of the local private sector.” 201Salvatore Mancuso, Trends on the Harmonization of Contract Law in Africa, 13 Ann. Surv. Int’l & Comp. L. 157, 157 (2007). An operable legal regime for the formation and enforcement of contracts is, therefore, essential to economic development. Economic development, in turn, makes post-conflict countries less prone to a relapse into conflict. 202See Paul Collier, Ctr. for the Stud. of Afr. Econ., Development and Conflict (Oct. 1, 2004) (unpublished manuscript), http://www.un.org/esa/documents/Development.and.Conflict2.pdf (explaining that in the context of what factors make a country prone to conflict, the level of per capita income, the rate of growth, and the structure are most important risk factors).

The Libyan and Syrian civil codes, adhering as they do to a relatively modern and sophisticated regime regulating obligations and the formation of contracts, provide the basis for the construction of a legal and regulatory environment that is appropriate for the facilitation of economic development. Moreover, as the countries surrounding Libya and Syria are all countries with legal systems based on the civil law model, 203See generally Mallat, supra note 61. retention of these codes in the aftermath of each country’s respective revolution would foster greater legal harmonization in the region which would benefit the Libyan and Syrian economies. On that score, the legal theories and philosophical underpinnings of Libyan and Syrian contract law, as they are drawn from the civil law tradition, are not only part of a shared legal tradition in the region, but also of a deep and well-rooted legal culture, the undergirding theories of which have annealed through centuries of legal development. 204See Planiol, supra note 159, at 5–14. Accordingly, as a functional matter, there is no need for a lengthy process of repeal and rewriting of Libyan and Syrian law, processes that current political situations, in any event, would likely not permit. 205See James Maxwell, Political Islam in Post-Gaddafi Libya, Think Afr. Press (May 2, 2013, 1:43 PM), http://thinkafricapress.com/libya/political-islam-post-gaddafi-libya (“[T]he ongoing deadlock of Libyan politics and the structural weakness of the Libyan state 18 months on from the fall of Gaddafi provide space for anti-democratic organisations . . . to breathe.”). Nor is there a need for sweeping, wholesale post-revolution reform in the area of Syrian or Libyan law of obligations and contracts.

In addition, the protections offered by the Libyan and Syrian civil codes, including the abrogation of contracts due to the vices of consent or lesionary quality, are of significant importance when confronting the panoply of issues attendant to conflict, such as the current displacement crises in each country. Displacement of persons can be perpetrated in numerous ways, including violence and the threat of violence. 206See, e.g., Kathleen Ridolfo, Iraq: Displacement Crisis Worsened by Violence, Radio Free Eur. Radio Liberty (Apr. 21, 2006), http://www.rferl.org/content/article/1067827.html (detailing campaigns of intimidation in Iraq). By looking to the organic law of the Libyan and Syrian civil codes, international and domestic actors can find innate, constitutive provisions rooted in a rich and extensive jurisprudential history 207See Planiol, supra note 159, at 5–14. to provide redress for victimized persons and mechanisms for restitution that operate within a recognized legal framework. Accordingly, the provisions in the Libyan and Syrian civil codes relating to obligations and contracts are of definite post-conflict utility. That legal utility portends well for their post-revolution viability.

D. Libyan and Syrian Property Law

Commentators note that although “there is no general theory of property law in the Shari’ah,” 208Richard A. Debs, Islamic Law and Civil Code: The Law of Property in Egypt 7 (2010); see also Farhat J. Ziadeh, Property Rights in the Middle East: From Traditional Law to Modern Codes, 8 Arab L.Q. 3, 4 (1993). the notion of private property clearly existed in traditional Islamic law, which recognized three basic forms of land tenure: (1) the rules relating to private property held in full ownership (mulk); (2) the rules relating to religious endowments (waqf); (3) and the rules relating to state-owned property (miri). 209Id. at 6. As part of the legal reforms undertaken in the Nineteenth Century, the Ottoman government enacted the Ottoman Land Code of 1858, a code that maintained Islamic property law categories. 210See id. at 8. Though, as noted, this period of Ottoman reform introduced secular French law to the Ottoman polity, Ottoman property law still held closely to the organic systems in place based on Islamic and Ottoman legal rules.

Penal and commercial codes were based on European models, but codes dealing with land were either based entirely on Islamic law like the Majalla, or based on Islamic law and previous Ottoman practice like the Ottoman Land Code of 1858. The Majalla, issued in parts between 1869 and 1878, was based on the opinions of jurists of the Hanafi school of law and dealt with a variety of subjects including those of real rights to land, like joint ownership, preemption, and mortgages. But it only applied to mulk land because mulk was traditionally the preserve of the Shari’a. Lands known as miri were regulated by the Land Code which incorporated Ottoman practices relative to state lands. 211Id.

The Ottoman Land Code remained in force in both Libya and Syria until the enactment of their respective civil codes. As the analysis below demonstrates, that adherence to Islamic law and Ottoman practice carried forward into their more modern codifications to varying degrees and remains a distinguishing feature of each. Moreover, each retains elements of continental civil law derived through their shared Franco-Egyptian parent as well as the philosophical influences imported into these codes by Sanhūrī, who believed property law should also have a social function. 212See Bechor, supra note 73, at 102-03. Thus, each code reflects Sanhūrī’s approach in formulating legislation, consistent with other civil codes of the twentieth century, which permitted the restriction of property rights in certain instances for the benefit of society and sought to promote the use of property for societal benefit. 213 See id.

1. Classification and Ownership of Property under Libyan Civil Law

As noted, the Qaddafi era wreaked havoc on Libyan law and distorted the rules that conscientious jurists had once set in place to give order to civil life in Libya. 214See U.S. Agency for Int’l Dev., USAID Country Profile: Libya—Land Tenure and Property Rights Profile 6 (2013). Commentators note, “[u]nder Qadhafi, all land was, as a general principle, publically owned by law, with Libyans having only transferable use-rights to the land they occupied.” 215Id. Fortunately, the organic law of the Libyan Civil Code entails a capable legal regime which recognizes private property and incorporates numerous devices and safeguards to regulate property and ownership in a way that protects property rights while promoting beneficial property use.

According to the Libyan Civil Code, property can be classified as moveable or immoveable, private or public, consumable or non-consumable. Immoveables are defined as “[t]hings which are fixed and which cannot be removed without damage[.]” 216See Libyan Civil Code, art. 82(1). All other things are considered moveable. 217Id. Consumable things, in turn, are those things “whose utility, by reason of their destined use, consists in their consumption or disposal.” 218Id. art. 84(1). All things that are destined for sale in commercial establishments are considered consumable property. 219Id. art. 84(2). This classification scheme largely aligns with the continental civil law view of property that has traditionally classified things as being corporeal or incorporeal; moveable or immoveable; or private or public. 220See Planiol, supra note 159, at 662. Planiol, in his commentary on the French Civil Code, notes that things may be further classified in continental civil law as being consumable or non-consumable; fungible or non-fungible; and things that are owned or things that are without an owner. 221Id. The Libyan Civil Code omits two of those categories (corporeal/incorporeal and fungible/non-fungible) but retains the rest and, therefore, generally classifies things in a way that comports with the continental civil law model.

The Libyan Civil Code states that “[t]he owner of a thing has alone, within the limits of the law, the right to use, to enjoy and to dispose of it.” 222See Libyan Civil Code, art. 811. The owner of a thing, likewise, “also owns everything that constitutes an essential element of the thing owned and which cannot be separated therefrom without the thing owned perishing, deteriorating or changing.” 223Id. art. 812(1). And, in the absence of a law or agreement to the contrary, “ownership carries with it the right to all fruits, products and accessories of the thing owned.” 224Id. art. 813. Importantly, the Libyan Civil Code expressly states that “[n]o one can be deprived of his property except in the cases and in the manner provided for by law and upon payment of fair compensation.” 225Id. art. 814.

With regard to land, the Libyan Civil Code provides that, with the exception limits applying to special mines and quarries, “[t]he ownership of the surface of land includes that which is above and below, as far as it can be usefully enjoyed in height and depth.” 226Id. art. 812(2). The surface of land can be owned separately from what is below or above the surface. 227Id. art. 812(3). It is important to note, however, that extra-codal legislation and regulation can serve to impinge upon the rather generous property rights that the Libyan Civil Code would seem to grant. For instance, with regard to oil and natural gas production, Libya has historically maintained a state-centered paradigm in which the Libyan government tightly controlled exploration, production, and export. 228See OpenOil, Libya Oil Almanac, An OpenOil Reference Guide, History of Libyan Oil and Gas Industry 1516 (2012). Much of this paradigm dates back to the nationalization of the oil and gas sector begun by the Libyan government in the early 1970s:

In March 1970, the Libyan Government dissolved the Libyan Petroleum Company (Lipetco), whose functions up until then had included the negotiation and supervision of oil concession agreements, replacing it with the Libyan National Oil Corporation (NOC). Furthermore, in July the regime nationalised the networks for distributing oil products owned by foreign oil companies. Henceforth only the NOC would have the right to distribute such products throughout the country. 229Id. at 16.

The NOC, therefore, became responsible for implementing exploration and production sharing agreements and had subsidiaries such as the Arabian Gulf Oil Company, and the Sirte Oil Company, 230See U.S. Energy Information Administration, Libya (2013), http://www.eia.gov/countries/cab.cfm?fips=LY. forming a regulatory and institutional structure that serves to constrain the ability to use the fruits and what lies below the surface of one’s land. Recent reports indicate that, in post-revolution Libya, the NOC remains under a newly constituted Energy Ministry. 231Id. The U.S. Energy Information Administration reports that in the aftermath of the Libyan revolution, the most significant unanswered questions pertain to who will be in charge of NOC, relevant ministries, and the “balance of power between the national government and regional actors, especially in the wake of agitation for greater autonomy in the oil-rich region of Cyrenaica.” 232Id.; see also Clapper, supra note 13, at 17 (“Libya has quickly resumed high levels of oil production, which is critical to rebuilding the economy. As of late 2012, it restored crude oil output to near preconflict levels of 1.6 million barrels per day, but Tripoli will need the expertise and support of international oil companies to sustain, if not boost, overall supply.”).

The outcome of such dilemmas will be of critical importance as Libya continues its progress toward development. As this Article has demonstrated, however, remaining beneath the post-revolution confusion is the the Libyan Civil Code and a legal schema which, reflecting the influence of continental civil law, allows for the ownership of private property in a way that comports with that of most modern legal systems. While extracodal exceptions exist (especially with regard to commodities and resources the state seeks to control), the provisions of the Libyan Code generally respect private property rights and regulate property ownership in a way that would be familiar to most European jurists. A framework, therefore, exists under Libyan law which can serve as a solid basis upon which a future Libyan economy can be built and that would allow for a certain degree of interoperability with regional and European legal systems.

2. Classification and Ownership of Property under Syrian Civil Law

Commentators note that Syrian property law, in contrast to other countries in the region, retained much more Ottoman influence due to the specific circumstances resulting from land administration in Syria and the fact that most land was considered state-owned property (amiri). 233See Debs, supra note 208, at 7; see also Ziadeh, supra note 73, at 8.

The Syrian Code of 1949, also drafted by al-Sanhuri, could not completely follow the Egyptian model because real property in Egypt had long assumed the character of mulk, whereas in Syria most of the property had continued to be miri governed first by the Ottoman Land Code and after 1930 by Decree No. 3399 of the same year. The traditional Ottoman classification of lands that had been followed in the Decree of 1930 was continued with some modifications. 234See Ziadeh, supra note 73, at 3, 11.

Property under the Syrian Civil Code, as with its Libyan counterpart, may be either moveable or immoveable. 235Syrian Civil Code, art. 84(1). With regard to the latter category, the Syrian Civil Code contains an article expressly dividing immoveables into five categories of classification based on Islamic and Ottoman legal concepts: mulk; amirié; métrouké murfaka; métrouké mehmié; and khalié mubah. This conforms, in part, to the five categories set forth in the Ottoman Land Code: mulk (land held in absolute ownership); amiri (state-owned land); waqf (land devoted to charitable purposes); matrūkah (land reserved for public purposes); and mawāt (“dead land” outside the confines of villages and cultivated areas.) 236See Ziadeh, supra note 73, at 8.

According to Syrian law, the first of these categories, mulk, refers to immoveable are those “susceptible to full ownership” lying within the perimeter of administratively determined built-up areas. 237Syrian Civil Code, art. 86 (2). As this form of ownership under Syrian law, is geographically confined, full ownership is treated as an essentially urban feature. Commentators note that Syrian courts require only one condition for real property to be considered mulk, “namely that it be situated inside the building zones by defined by administrative regulations.” 238See Sacha Hasan, Civil Society Participation in Urban Development in Syria 303 (July 2012) (unpublished Ph.D. dissertation, Heriot-Watt University), available at http://www.ros.hw.ac.uk/handle/10399/2596. This geographic limitation on mulk echoes that of Article 2(i) of the Ottoman Land Code which defined one type of mulk property as being “[s]ites (for houses) within towns or villages, and pieces of land of an extent not exceeding half a donum situated on the confines of towns and villages which can be considered as appurtenant to dwelling houses.” 239See Fisher, supra note 66, at 1 (quoting the Ottoman Land Code). Such limitations (along with historic and current patterns of Syrian land tenure) may partially explain the limited nature of private land ownership in Syria today. Extracodal Syrian legislation, such as the 1958 Land Reform Law, had a strong impact on land ownership as land was confiscated by the state and only partially redistributed. As a result of this combination of forces, it is estimated that 62 percent of Syrian land is state-owned land, with the remaining 38 percent being privately owned. 240Nadia Forni, Land Tenure and Labour Relations, in Syrian agriculture at the crossroads, in FAO Agricultural Policy and Economic Development Series No. 8 (Ciro Fiorillo & Jacques Vercueil eds., 2003), available at http://www.fao.org/docrep/006/y4890e/y4890e0t.htm (“About 22 percent of cultivable land was confiscated because of land reform ceilings. This was only partially redistributed to farmers.”).

The second of these categories, amiri, 241See Debs, supra note 208, at 7; Ziadeh, supra note 73, at 8. refers to immoveable property for which the rakaba—the naked ownership—belongs to the state and which can be the object of the special right known as a tassaruf. 242Syrian Civil Code, art. 86(3). Although it does not contain a large number of provisions regulating it, the Syrian Civil Code does contain provisions recognizing the concept of a tassaruf (also transliterated as tessarouf). 243 See id. art. 85(2). Article 772 of the Syrian Civil Code states that, in the absence of a law to the contrary, the provisions relating to ownership of property apply to the legal regime governing the property right of tassaruf and amiri property. 244 Id. art. 772.

The Syrian Civil Code also expressly recognizes two forms of métrouké. Commentators note that métrouké is an Islamic land category that refers to “public land for general use, such as pastures for the use of particular towns and villages, markets, parks and places to pray.” 245Siraj Sait & Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World 229 (2006). According to the Syrian Civil Code, métrouké murfaka refers to immoveable property that belongs to the state but that is subject to a right of use in favor of a collectivity of people—the extent and characteristics of which is governed by the local customs or administrative regulations. 246Syrian Civil Code, art. 86(4). Sait and Lim note that métrouké murfaka refers to “property for use by a specific community such as market places and cemeteries.” 247See Sait & Lim, supra note 245, at 229.

The fourth Syrian property category is métrouké mehmié. In Islamic law, métrouké mehmié generally refers to “property for general public use such as roads.” 248Id. According to the Syrian Civil Code are those immoveables that belong to the state at the level of mohafazats (governorates) or municipalities and which are part of the public domain. 249 Syrian Civil Code, art. 86(5).

The fifth of the Syrian property categories, khalié mubah, refers to land that is amiri land owned by the state but that has not been inventoried and delimited and on which the first occupant—with the permission of the State—acquires a right of preference subject to the conditions set forth in the regulations of the area. 250 Id. art. 86(6).

With regard to ownership of property, the Syrian Civil Code states that the owner possesses the exclusive right, within the limits of the law, to use, enjoy, and dispose of a thing owned. 251 Id. art. 768. The right of ownership comprises all that constitutes an essential element of a thing, such that it could not be separated from it without perishing, deteriorating or being otherwise altered. 252 Id. art. 769(1). The ownership of the soil consists of, in height and depth, that which is above and below it “up to the useful limit of its enjoyment.” 253 Id. art. 769(2). The ownership of the soil can be, by virtue of law or by agreement, separated from the ownership of what is below or above it. 254 Id. art. 769(3). Absent any law or agreement to the contrary, the owner of a thing has the right to all the fruits, products, and accessories of that thing. 255 Id. art. 770. The Syrian Civil Code expressly states that no one may be deprived of his or her property except as provided for by law and for fair compensation. 256 See id. art. 771. As with Libya, however, extracodal legislation can impinge on ownership rights, such as Syrian laws relating to oil and gas production. 257See Syria, U.S. Energy Information Administration (last updated Feb. 18, 2014), http://www.eia.gov/countries/cab.cfm?fips=SY (“In 1964, Syria passed legislation that limited licenses for exploration and investment to the Syrian government. The Ministry of Petroleum and Mineral Resources oversees the Syrian oil and natural gas sectors and is in charge of setting policy priorities and coordinating the efforts of the state led companies that operate in the sector . . . . The General Petroleum Company (GPC) oversees the strategies for exploration, development, and investment in Syria’s oil and gas sector, and supervises the activities of its numerous affiliated companies, including the Syrian Petroleum Company (SPC) and the Syrian Gas Company (SGC). The SPC is Syria’s largest state-owned oil company and has a number of production-sharing agreements (PSAs) in place throughout the oil sector.”). Similar laws and institutional arrangements have been enacted to place the means of production and export of natural gas into government control. 258Id.

3. Possession Under Libyan Law

The Libyan Civil Code, consistent with continental civil law, contains provisions allowing for possession and acquisitive prescription. In civil law systems, possession is defined as “a state of affairs that consists of (1) the detention of a thing in an exclusive fashion (2) in order to perform on it the same material acts of usage and enjoyment as if one was the owner.” 259See Planiol, supra note 159, at 697. Under the Libyan Civil Code, “possession does not result from acts that are done by permission or merely tolerated,” 260See Libyan Civil Code, art. 953(1). nor can it result from acts of violence or acts done in secret. 261Id. art. 953(2). Possession ends when the possessor “abandons his actual control over the right or when he loses it in any other way.” 262Id. art. 960. A person who was in possession of an immoveable and who then loses that possession may, within a year of losing possession, bring an action to have his or her possession reinstated. 263Id. art. 962. If a person who was in possession of an immoveable for less than a year loses possession, then he or she may only bring an action to be reinstated if the dispossessing party does not have a better claim to possession. 264Id. art. 963.

Consistent with the continental civil law tradition, the Libyan Civil Code provides that in certain cases property can be acquired through uninterrupted possession, which is typically called acquisitive prescription. “Acquisitive prescription or usucapion is a manner of acquiring the ownership of a thing by prolonged possession for a determined time.” 265Planiol, supra note 159, at 827. This legal regime in the Libyan Civil Code, taken from its Egyptian model, is an example of hybridity in the Franco-Arab model.

The Egyptian Civil Codes adopted their concept of prescription from French law, treating it as a means of acquiring ownership rights. Although the concept existed in Islamic law, it was conceived of as a bar to actions against the adverse possessor and not as a means of acquiring property rights. Yet the period of possession prescribed in the codes as a prerequisite to the acquisition of such rights was taken from Islamic law, not the French Code. 266Debs, supra note 208, at 92.

French law, as a general matter, required thirty years of possession with shorter ten- or twenty-year periods for individuals possessing in good faith and with just title. 267Id. In contrast, under Libyan law, a person in possession of an immoveable in good faith and with a just title may acquire ownership of that immoveable if his or her possession continues uninterrupted for five years. 268Libyan Civil Code, art. 973(1). “Just title” under Libyan law refers to “a document of title emanating from a person who is not the owner of the property.” 269Id. art. 973(3). Good faith is only required “at the moment the right” of possession is conveyed. 270Id. art. 973(2). Otherwise, a person with possession of a thing may acquire ownership of the thing if that possession “continues uninterrupted for fifteen years.” 271Id. art. 972. The Libyan Civil Code, therefore, like the Egyptian code, adopts the continental concept of acquisitive prescription, though with timeframes based on Islamic law.

Libyan law permits that acquisitive prescription may result in the ownership of waqf property, though waqf property may only be acquired by uninterrupted possession for thirty-three years. 272Id. art. 974. This is in accord with Article 14 of the Egyptian law on the organization of Mahkamahs for which “the prescribed period of possession [for waqf property] was set at thirty-three years.” 273Debs, supra note 208, at 92. Debs notes, however, that even this law—which permitted the acquisition of ownership through prescription rather than merely a bar against an action—was, at its root, a continental civil law concept and “thus became a rule of acquisitive prescription based on civil law theory, measured by an Islamic period of adverse possession and applied to a Shari’ah institution.” 274Id. at 9293.

Under Libyan civil law, good faith possession of a moveable (or of a real right over a moveable) by virtue of just title conveys immediate ownership of the thing. 275Libyan Civil Code, art. 980(1). If the possessor acquires possession in good faith and by just title while believing that the thing is free of all encumbrances, then it is acquired free of all encumbrances. 276Id. art. 980(2). Even so, a person who has lost or been robbed of a moveable can bring an action to recover it within three years, even when the person who possesses the moveable acquired it in good faith. 277Id. art. 981(1). If a lost or stolen thing is found in possession of a third party who acquired it in good faith “on the market, at a public sale or from a merchant selling similar articles” then the true owner may recover the moveable for the price the possessor paid for the thing. 278Id. art. 981(2). As with the Libyan law on immoveable property, this legal scheme for moveable property comports with the classic continental civil law rules for possession of moveable property. 279See Planiol, supra note 159, at 828.

In all cases, a possessor in good faith acquires all fruits collected during the time of possession. 280Libyan Civil Code, supra note 118, art. 982(1). “Natural or industrial fruits are deemed to be collected from the moment they are separated. Legal fruits are deemed to be collected day by day.” 281Id. art. 982(2). A bad faith possessor, on the other hand, is liable for all fruits that he or she collected during the period of bad faith possession, as well as all those that he or she failed to collect. 282Id. art. 983. The bad faith possessor may still, however, claim the expenses incurred as a result of the production of the fruits. 283Id.

4. Possession Under Syrian Law

Possessory rights under Syrian law bear a close resemblance to their Libyan analog. Under Syrian law, possession cannot be based on mere facultative acts or acts of simple tolerance. 284Syrian Civil Code, art. 907(1) Similarly, possession cannot be based on acts of violence or when exercised clandestinely or in an equivocal fashion. 285Id. art. 907(2). Acquisitive prescription is interrupted if the possessor abandons or loses possession, even if that loss is by the act of a third person. 286Id. art. 924 (1). Acquisitive prescription, however, is not interrupted by the loss of possession if it is reinstated within a year of the time it is lost. 287Id. art. 924 (2).

The Syrian Civil Code provides that a person possessing an immoveable in good faith and with just title may acquire ownership if that possession continues uninterrupted for five years. 288Id. art. 918 (1). Otherwise, he or she may only acquire ownership through acquisitive prescription of uninterrupted possession for fifteen years. 289Id. art. 917. In any case, possession and acquisitive prescription cannot serve to create rights in immoveables that are métrouké, mehmié, and murfaka. 290Id. art. 926.

A person who possesses a moveable in good faith and with just title becomes the owner of that thing from the moment he or she takes possession of it. 291Id. art. 927(1). If the possessor in good faith and with just title takes possession believing the thing is free of encumbrances, then he or she will acquire it free of all encumbrances. 292Id. art. 927(2). A person may bring an action to recover moveable in the same way and pursuant to the same limits as those articulated in the Libyan Civil Code. 293See id. art. 928; see also supra notes 277–78 accompanying text.

Interestingly, the analysis above demonstrates that both the Libyan and Syrian codes take their legal scheme for possession from the Franco-Egyptian model, which adheres to the continental civil law approach. 294Debs, supra note 208, at 92. This is consonant with the law of other countries in the region—such as Tunisia and Algeria—which also permit the acquisition of ownership through acquisitive prescription. 295Code Des Droits Reels (Republique Tunisienne), Publications de l’Imprimerie Officielle de la République Tunisienne (2011), arts. 45-52; Code Civil (Algerie), arts. 827–36. It is worth noting, however, that the Iraqi Civil Code, which was also authored by Sanhūrī, adopts the language of barred rights and lost actions, stating that an action by another to prove ownership of a thing or a right in rem will be barred after five years if a person continuously possesses property (or possesses a right in rem therein) which is not registered in the Land Registration Department and on the assumption that it is his own property. 296Iraqi Civil Code, supra note 126, § § 1157–58. At least one other of Sanhūrī’s codes, therefore, adopts a more traditionally Islamic approach to acquisitive prescription—though the Libyan and Syrian codes retain an approach that comports with the majority of civil codes in North Africa and the Levant.

5. Usufruct in Libya and Syria

Continental civil law traditionally recognizes three principal real rights of enjoyment (droits réels jouissance) over a thing belonging to another: the right of usufruct; the right of use; and the right of occupation. 297Planiol, supra note 159, at 862. The first of these, usufruct, is a noteworthy and practical civil law property device by which property is considered to be “dismembered” 298Id. so that the person to whom the usufruct is given—the usufructuary—obtains the right to use and enjoy the fruits produced by the property, though without obtaining its full ownership. 299Id. at 871. The remaining rights remain with the “naked owner” of the property. 300Id. at 862.

a. Libya

The Libyan Civil Code recognizes this traditional civil law property law device of usufruct, permitting a usufructuary under Libyan law to use property 301Libyan Civil Code, art. 992(1). and enjoy the fruits of the property. 302Id. art. 991. A usufruct, under Libyan law, may be over immoveable or moveable property. 303See id. art. 996(1). In something of a departure from the standard codal provisions for usufruct—and a variation clearly designed to address local agricultural concerns—the Libyan code specifically addresses the agricultural uses for a usufruct:

When there are standing crops on the land which is subject to usufruct, at the end of the time fixed for the usufruct or upon the death of the usufructuary, such land shall be left in possession of the usufructuary or of his heirs until the crops are ripe for harvesting, but the usufructuary or his heirs shall pay rent for that period. 304Id. art. 997(2).

Similarly, the Libyan Civil Code specifically provides that “[t]he usufructuary is entitled to the natural increase of flocks and herds, after replacing therefrom such animals as have perished accidentally.” 305Id. art. 996(2).

Libyan law, consistent with the continental civil law schema, also contains protections for the naked owner of the property so that the right of usufruct does not result in abuse. For instance, the usufructuary must use the property “in the state in which he has received it and according to the object for which it was intended,” and must “observe the rules of good management.” 306Id. art. 992(1). The usufructuary is obligated to preserve the thing “with the usual diligence of a normal man,” 307Id. art. 994(1). and is liable for the loss of the property “even through no fault on his part, if he has delayed to restitute the property to its owner after termination of the usufruct.” 308Id. art. 994(2).

The naked owner of the property also has the ability to assert a degree of control over the usufructuary’s use of the property and “may object to any use of the property that is unlawful or unsuitable to the nature of the property.” 309Id. art. 992(2). The naked owner may even demand a security from the usufructuary if the naked owner feels that his or her rights are endangered by the manner in which the usufructuary is using the property. 310Id. If the usufructuary refuses to provide a security or continues to persist in the inappropriate use of the property, the Libyan Civil Code allows that a judge may order that the property be placed in the hands of a third party for its management or, in serious cases, may terminate the usufruct “without prejudice to the rights of third parties.” 311Id. art. 992(2).

Under Libyan law, a usufruct is terminated upon the loss of the property, though the usufruct remains attached to any property “obtained in lieu of the property destroyed.” 312Id. art. 998(1). A usufruct also terminates at the end of the term for which it was fixed or, if no such term was fixed, upon the death of usufructary. 313Id. art. 997(1). This is because, when no term is fixed upon the creation of a usufruct, the Libyan Civil Code presumes that the usufruct is created for the lifetime of the usufructuary. 314See id. This is in accord with Planiol’s comment on the usufruct in the context of the French Civil Code, noting that “[i]t is rare that the usufruct established by an individual is submitted by them subject to an extinctive term. The usufruct, having been given on account of the person, is generally created to last as long as the person.” 315See Planiol, supra note 158, at 892.

b. Syria

The Syrian Civil Code defines a usufruct as “a real right of use and enjoyment over a thing belonging to another.” 316Syrian Civil Code, art. 936(1). Under Syrian law, a usufruct entails the use of the immoveable for the usufructuary’s enjoyment and personal profit. 317Id. art. 943. A usufruct under the Syrian Civil Code can be established for a term or subject to a condition. 318Id. art. 937. Syrian law does not permit a usufruct to be established in favor of a corporate or legal entity. 319Id. art. 936(3).

The Syrian Civil Code expressly notes that the right of usufruct entails the use of servitudes “as well as the right of hunting and fishing” unless the owner of the property previously gave another these rights. 320Id. art. 943. Similarly, the usufructuary has the right to the fruits of the property. 321Id. art. 944(1). Importantly, the Syrian Civil Code defines “fruits” as encompassing natural products or revenues that the immoveable may furnish in regular intervals without diminution of its substance “including the rental price of the right of hunting and fishing.” 322Id. This also includes the products of mines, minerals, and quarries (when already open before the beginning of the usufruct) and trees when they are produced on a periodic basis (for the consumption of their wood or for their sale). 323Id. art. 944(2).

At the beginning of the usufruct, and at the time of its extinction, the usufructary and the naked owner proportionally distribute fruits that have not yet been realized; that proportionality is determined by fractions that represent (in relation to the period of time for production of the fruits) the time during which the usufruct existed and the time during which it did not exist. 324Id. art. 945(1). Under Syrian law, the usufructuary need not pay reimbursement to the owner, or vice versa because of the expense of labor—but account will be taken of the price of fertilizers and seeds used to prepare the harvest on the foot, the opening, or the extinction of usufruct. 325Id. art. 945(2).

Like the Libyan Civil Code, the Syrian Civil Code also contains protections for the naked owner. For instance, the usufructuary must act as a careful and diligent caretaker of the property. 326Id. art. 948(1). The Syrian Civil Code notes that “in particular, he must advise the owner of encroachments upon the immoveable property by third parties (otherwise he will be responsible for the injury suffered by the owner.)” 327Id. Notably, before a usufructuary in Syria may benefit from the usufruct, he or she must take stock of the state of the immoveable and must provide a security deposit. 328Id. art. 939(b). Although these requirements can be waived in the constitutive act creating the usufruct, 329Id. art. 939(2). their inclusion as default requirements is distinct from the Libyan Civil Code, which only requires a security if requested by the naked owner. The Syrian Civil Code, therefore, adopts a more proactive protective position vis-à-vis the naked owner than its Libyan corollary.

A usufruct under Syrian law may be juridically revoked upon demand of the naked owner because of abuse by the usufructuary, especially if he commits some damage to the building or if he fails to perform service maintenance. 330Id. art. 957(1). A judge may, in accordance with the gravity of the situation, order the revocation of the usufruct, the return of the immoveable to the naked owner or the return of the immoveable to the owner but with the obligation to pay a determined annual sum to the usufructuary or his assignees up to the time fixed for the termination of the usufruct. 331Id. art. 957(3).

The Syrian Civil Code provides that a usufruct is extinguished upon the death of the usufructuary. 332Id. art. 936(2). On the other hand, the sale of the immoveable subject to the usufruct does not alter the rights of the usufructuary, who may continue to enjoy the usufruct if it has not been formally renounced. 333Id. art. 958. Finally, the creditors of a usufructuary may annul the renunciation of a usufruct by a usufructary if it is done to the prejudice of the creditors. 334Id. art. 959.

6. Preemption in Libya and Syria

Preemption is a property device that was imported by Sanhūrī directly into the Middle Eastern civil law model from Islamic law. 335See Debs, supra note 208, at 93. Debs notes that Sanhūrī’s importation of preemption into the Egyptian Civil Code is significant in that “it was the only place in the Civil Codes where an attempt was made to incorporate a fully Islamic institution within the framework of the Civil Law.” 336Id.

The Libyan Civil Code, in which this legal import is replicated, defines preemption as “the opportunity that a person has to substitute himself in a sale of immovable property in the place of the purchaser.” 337See Libyan Civil Code, art. 939. Once a right of preemption is successfully asserted under Libyan law, the preemptor is effectively, in relation to the seller, substituted for the purchaser. 338Id. art. 949(1). This right belongs—in order of precedence 339Id. art. 941(1). to: 1) the naked owner in cases where there is the sale of all or part of a usufruct over the property; 2) a co-owner in the case of a sale of co-owned property to a third party; and 3) a usufructuary in cases of sale of all or part of the bare property which produces his usufruct. 340Id. art. 940. If several persons of the same degree seek to exercise their right of preemption, then the right of preemption belongs to each in proportion to his or her share. 341Id. art. 941(2).

In Libya, a right of preemption cannot be exercised over property when the sale is made by a public auction, 342Id. art. 943(1)(a). between ascendants and descendants, 343Id. art. 943(1)(b). between spouses, 344Id. between relatives to the fourth degree or relatives by marriage to the second degree, 345Id. or if the property is sold to be used for religious purposes or “annexed to property already used for such purposes.” 346Id. art. 943(1)(c). Libyan law states that “[a] waqf cannot exercise the right of pre-emption, unless the person creating the waqf has expressly reserved the power to do so in the civil deed of the waqf.” 347Id. art. 943(2).

An assertion of the right of preemption must be brought against the seller and purchaser “before the Court of the District in which the property is situated,” and registered with the court within thirty days from the date of the notification. 348Id. art. 947. In order to exercise a right of preemption, the Libyan Civil Code states that a person exercising such a right must give notification to both the seller and the purchaser of his or her intention to exercise the right within fifteen days of the date of the summons served on him or her by either the seller or the purchaser. 349Id. art. 944.

The Syrian Civil Code does not contain any provisions for preemption. Ziadeh notes that “in Syria, the Civil Code of 1949 abolished this institution in toto because, as the Explanatory Memorandum puts it, ‘it is, in fact, a weak right and the social and economic life in Syria does not necessitate its adoption.’” 350See Ziadeh, supra note 73, at 48. The Islamic concept of preemption, therefore, does not exist under Syrian law.

7. Distinct Property Rights

Among the many differences already illuminated in the analysis of these two Middle Eastern civil codes, there are many distinct property rights which are not shared between the two. These distinctions are derived, in large part, from the tendency of each code to variously lean toward the influence of continental civil law or Ottoman and Islamic law in divergent ways. The incorporation of these rights, however, is not an indication of either code’s continental or Middle Eastern tendencies. The Libyan Civil Code adopts certain Islamic and continental civil law concepts while disregarding others, as does the Syrian Civil Code. Ottoman and Islamic legal concepts thought beneficial are made to function within the context of a modern civil law framework just as continental civil law institutions deemed beneficial are retained for the benefit of a Middle Eastern polity. The individualized incorporation of Middle Eastern legal concepts demonstrates the remarkable hybridity of these legal institutions as well as the potential flexibility of the continental civil law model.

a. The Libyan Code’s Provisions on Use and Habitation

Continental civil law recognizes distinct rights of use and habitation. A right of use is a real right of the same nature as a usufruct but without the right to the fruits of the thing. 351See Planiol, supra note 159, at 901. Planiol notes that, with a few exceptions, “the right of use is subject in principle to the rules governing usufructs.” 352Id. Similarly, Planiol notes that the right of habitation began as nothing more than “the right of use applied to a house, oedium usus.” 353Id.

Both of these property rights were expressly incorporated into the Libyan Civil Code, though the Libyan Civil Code’s provisions for the rights of use and habitation are scant, consisting of only three articles in total. The Libyan Civil Code sets out no particular rules for the right of use, except to name it in a subheading and to note that the rules set forth for the right of usufruct are applicable to the rights of use and habitation (called “occupation” in the English translation) to the extent they are not incompatible with the rights of use and occupation. 354See Libyan Civil Code, art. 1002. The Libyan Civil Code provides that, subject to the deed by which it is created, a right of occupation (or habitation) “is determined by the personal requirements of the beneficiary and of his family.” 355Id. art. 1000. Such rights are not found in the Syrian Civil Code, which contains no express provisions for distinct rights of use and habitation.

b. The Libyan Code’s Provisions on Mugharisah, Mazara’ah, and Musaqah

Mugharisah, mazara’ah, and musaqah are traditional Islamic property arrangements which are used in sharecropping. 356See Debs, supra note 208, at 84. Ziadeh notes that “in Libya, the Islamic law leases of mughārasah, muzāra’ah, and musāqāt endow lessees with real rights, whereas in other Arab countries such lessees acquire only personal rights.” 357See Ziadeh, supra note 73, at 70. The first of these, mugharisah, is an Islamic property right that endows the lessee with real rights. It is typically “a contract by virtue of which an owner entrusts land to a person who undertakes to plant it with fruit trees [in exchange for] receiving a portion of the land.” 358Id. The Libyan Civil Code defines mugharisah as “a contract under which an owner of land gives some of his land to another who undertakes to plant thereon firmly rooted trees.” 359See Libyan Civil Code, art. 1003. This contract is intended to be for a period of time commensurate with that needed for the trees to bear fruit in return for a share of the land. 360Id. If the grantee of a mugharisah fulfills his or her contractual obligations, then—at the expiration of the contract or “in accordance with custom”—the grantee of the mugharisah shall become the owner of the agreed-upon portion of the land. 361Id. art. 1009. Such a contract can only be created “by an authenticated document duly and legally registered in the Office of the Land Registry or other office performing similar functions.” 362Id. art. 1004. The contract, however, is null if the grantee of a mugharisah fails to “prepare the land and take up the obligations imposed upon him within a period of three years from the date of the contract.” 363Id. art. 1008. Notably, the Libyan Civil Code expressly states that “[r]ecourse shall be had to Islamic law as to ‘mugharisah’ in the absence of other applicable provisions.” 364Id. art. 1012.

Mazara’ah, similarly, is traditionally “a contract, by virtue of which, an owner entrusts land to a person to plant it with seasonal crops or vegetables [in exchange for] a portion of the land.” The Libyan Civil Code provides for mazara’ah and defines it as a contract “under which an owner of land delivers part of his land to another to plant the same with seasonable cereals or vegetables in consideration of a share, in cash or in kind, in the produce.” 365Id. art. 1013.

Musaqah is a type of contract in which “an owner of trees or crops entrusts his trees or crops to a person to look after and water them until they bear fruit or ripen [in exchange for] a specific portion of such fruit or crops.” 366See Ziadeh, supra note 73, at 70–71. The Libyan Civil Code, in articulating this specific property device, defined it as a contract “under which an owner of fully grown trees or of cultivated land delivers the same to another who undertakes to water them until they bear fruit.” 367See Libyan Civil Code, art. 1014(1). The grantee of a right of musaqah is entitled to a determined share of the yield of the trees. 368Id. art. 1014(2). Such a contract must be for a fixed period. 369Id. art. 1015. With regard to both mazara’ah and musaqah, Libyan law provides that “the special rules of local custom and usage shall be observed” until those local customs and rules are “incompatible with the law.” 370Id. art. 1017.

c. The Syrian Civil Code’s Right of Superficie (musataha)

Interestingly, both continental civil law and Islamic law have recognized a “surface right” over immovable property. In civil law terminology, this has been called the right of superficie and, in Islamic law, it is known as a musataha. Civil law jurists trace the origins of the right of superficie to Roman law. 371See Ivana Jaramaz-Reskušić & Zrinka Erent-Sunko, La Superficies – de Rome, à Travers Paris, Jusqu’au Québec, Croation Canadian Academic Soc’y, available at http://www.hkad.hr/3.zbornik-v5.pdf (last visited Apr. 14, 2014). Commentators note that the “surface right [droit de superficie] is a form of immovable property . . . by which the tenant . . . becomes owner of the building erected by him—but for the duration of the lease only.” 372See F.H. Lawson et al., Amos and Walton’s Introduction to French Law 95 (Oxford Univ. Press, 1963). In Islamic law, the corresponding right of musataha refers to a right of ownership in buildings and trees which is separate from the right to ownership of the land. 373See Ziadeh, supra note 73, at 62–63.

The Syrian Civil Code, unlike its Libyan corollary, contains provisions for a right of superficie—a right over buildings, constructions, or things planted on the surface of the ground. 374Syrian Civil Code, art. 994. Under Syrian law, such a right can be alienated or mortgaged, 375Id. art. 995(1). and things subject to the right may even be encumbered by servitudes, though only to the extent compatible with the right of superficie. 376Id. art. 995(2). This right, which Ziadeh notes is referred to as sathīyah in Syria and Lebanon, 377See Ziadeh, supra note 73, at 25 (“Sathīyah in Syria and Lebanon, musātāhah in Iraq and qarār in Egypt, have the same meaning, namely, the right to support, or the right to use the surface of the land.”). had been eliminated under a previous law in 1930, thus the right is limited to cases arising before 1930. 378Id. at 22. This is articulated in Syrian Civil Code article 997 which states that “[t]he creation of a new right of superficie remains prohibited.” 379See Syrian Civil Code, art. 997.

8. Libyan and Syrian Laws Relating to Waqf

The Libyan Civil Code acknowledges the existence of waqf property and special rules applicable to such property throughout its provisions. For instance, Libyan civil law allows the lease of waqf property, so long as that lease is done with the permission of the creator of the waqf or so long as the lessor was given the power to lease the waqf. 380Libyan Civil Code, art. 627. This idea of a lease of waqf property, also known as hikr, 381See Ziadeh, supra note 73, at 64. is “mostly of Sharī’a origin” 382Id. and “is to waqf property what usufruct, or even sathīyah is to private property[.]” 383Id. Although the concept of hikr does not find elaborate treatment in the Libyan Civil Code, the related idea of a permissible lease of waqf property is included among its provisions along with familiar limitations—such as those provisions limiting the lease of waqf property, without judicial authorization “for a period exceeding three years, even by successive contracts.” 384See Libyan Civil Code, art. 632. But the concept of a waqf and property rights pertaining to waqf receive far less detailed treatment in the Libyan Civil Code than one finds in its Syrian corollary.

Private waqfs were abolished in Syria by Article 1002 of the Syrian Civil Code. 385See Ziadeh, supra note 73, at 66. A waqf in Syria can, therefore, only be established for a charitable purpose. 386See Syrian Civil Code, art. 1002. In that regard, the Syrian Civil Code provides that an immoveable encumbered by a waqf is inalienable 387Id. art. 998(3). and cannot be transferred through any means—though it can be the object of specific rights known as istibdal, idjaratein, or moukataa. 388Id. arts. 998(2)(3). One may not acquire any rights over immoveable property that is subject to a waqf. 389Id. art. 1010.

a. The Right of Idjaratein

Debs notes that idjaratein is a leasehold arrangement “employed for the rehabilitation of buildings on waqf land.” 390See Debs, supra note 208, at 84. Debs further explains that, “[u]nder such an arrangement, the lessee made a lump-sum payment based on the value of the building and then paid an annual fixed rent based on the value of the land.” 391Id. The Syrian Civil Code provides for this property device and defines idjaratein as a contract by which a person, through payment of a determined price, acquires the right to use and enjoy a moveable encumbered by a waqf. 392See Syrian Civil Code, art. 1004. The person acquiring such a right must pay a sum of money representing the anticipated rent equal to the value of the right acquired in addition to a perpetual rent, the rate of which is fixed. 393Id. Such a contract, which must be pre-authorized by a judge, 394Id. art. 1006. gives the holder of an idjaratein the right to use and enjoy the immoveable as though he or she was its owner. 395Id. art. 1007(1). Those rights extend over everything the property produces, whether it is artificial or natural. 396Id. art. 1009. The holder of an idjaratein may even, with the approval of the manager of the waqf and within certain limits, erect new constructions on the property or plant things. 397Id. art. 1010. The right of idjaratein can be transmitted by succession it the same way as amiri property. 398Id. art. 1008.

b. The Right of Idja Tawilé (or moukataa)

Under Syrian law, idja tawilé refers to a contract by which a party acquires, in exchange for payment, the right to build and plant upon immoveable property encumbered by a waqf. 399Id. art. 1017(1). The holder of an idja tawilé may also acquire sole ownership of those constructions or things planted under certain conditions. 400Id. art. 1017(2).

The contract for idja tawilé by way of moukataa (annual fixed royalty) is only authorized to the exclusion of all other contracts. 401Id. art. 1018. The holder of a right of moukataa is the owner of all the constructions erected and all the things planted on the immoveable subject to a waqf. 402Id. art. 1022(1). He or she may use, enjoy, and dispose of them freely. 403Id. art. Notably, he or she may alienate them for consideration or by donation, pawn them, mortgage them, encumber them with a waqf, or encumber them with any other servitude within the limits of the law. 404Id. art. 1022(2). The right of moukataa may be transmitted by succession according to the provisions applicable to mulk property. 405Id. art. 1024. Such a contract must be pre-authorized by a judge. 406Id. art. 1021. As private waqfs were abolished in Syria, the articles of the civil code which regulated ijāratayn and moukataa pertain to chartitable waqfs only.

9. Analysis of Libyan and Syrian Codal Provisions

An analysis of the treatment of property under the Libyan and Syrian civil codes demonstrates a degree of commonality but also the manner in which Middle Eastern civil codes—even those adopted during the same era and derived from the same influences—can differ. Notably, it would be an error to attempt to classify one code as more “Islamic” or “Middle Eastern” than the other. Each retains certain specific elements that are drawn from the pre-codal legal systems of the region while, in other respects, align more closely to continental civil law. For instance, the Libyan code retains provisions for mugharisah, mazara’ah, and musaqah (while the Syrian code does not) and the Syrian code, in turn, adopts a very Ottoman approach to the classification of immoveable property (in contrast to Libya’s more continental civil law approach.)

In that regard, the Syrian code’s limitations on the private ownership of land—relegating only urban areas to being susceptible of ownership—are in obvious need of reform as such limitations are inimical to development. 407See Chris Papageorgiou & Geoffrey K. Turnbull, Economic Development and Property Rights: Time Limits on Land Ownership, 19 Econ. Dev. Q. 271, 272 (2005). It is fundamental that “well-defined and defended private property rights enhance growth and economic development.” 408Id. On the other hand, both codes—the Syrian code’s limitations on land ownership notwithstanding—do otherwise provide broad protections for property rights. Moreover, with regard to the retention of Islamic legal devices, Siraj Sait, a reader and head of law research at the University of East London (UK), has noted that certain Islamic land law devices can be especially beneficial in post-conflict environments, specifically those of “barren (mawat) land, Islamic endowment (waqf) adapted for community welfare, robust individual usufruct (tassaruf) rights over state land, and Muslim collective tenures.” 409See Siraj Sait, Unexplored Dimensions: Islamic Land Systems in Afghanistan, Indonesia, Iraq, and Somalia, in Land and Post-Conflict Peacebuilding, supra note 12, at 476.

Such tools have been a part of the legendary pursuit, ambitious yet elusive, of global initiatives aimed at strengthening land access, food security, and environmental sustainability. These tenure models have been around for many centuries, co-existing with turbulent and violent histories, so it is likely that they will work well in post-conflict natural resource management. 410Id.

Sait demonstrates that such property regulating devices are of use—or of potential use—in the post-conflict environments of Afghanistan, 411See id. at 48081. Indonesia, 412See id. at 48284. Iraq, 413See id. at 48587. and Somalia. 414See id. at 48789. The analysis above demonstrates that similar devices have been retained in Libyan and Syrian law, such as the Syrian Civil Codes provisions on métrouké murfaka. 415See Syrian Civil Code, art. 86(4). Though the Libyan Civil Code contains no provisions relating to tassaruf and the Syrian Civil Code contains only a scant few—basically recognizing its existence and noting that the provisions relating to ownership of property apply to the legal regime governing the property right of tassaruf and amiri property 416Id. art. 772. —both codes have robust provisions governing the right of usufruct and a panoply of property rights permitting a diverse range of options for use of property belonging to another.

Importantly, each code also retains robust provisions for possession and the rights of possessors while simultaneously disfavoring bad faith possessors and denying legal effect to possession obtained by force or deceit as well as possession that was secret or ambiguous in nature. Such a property scheme is vital to people who are have been openly living on land for some time without clear title (though without obtaining that possession through untoward means). It permits displaced persons to re-obtain possession via a possessory action and permits possessors in a post-conflict displacement scenario—in which records can be easily lost or destroyed—to retain rights in moveable or immoveable property, subject, of course, to a proper legal action by a true owner who can prove valid title. As this Author has noted in other contexts, “[t]his is consonant with the civil law tradition of reclaiming possession through a possessory action as well as the desired goal of regulating all disputes within a legal framework rather than allowing the displacement crisis to blossom into private inter-neighborhood warfare.” 417See Dan E. Stigall, Refugees and Legal Reform in Iraq: The Iraqi Civil Code and International Standards for the Treatment of Displaced Persons, in Land and Post-Conflict Peacebuilding, supra note 12, at 217.

Accordingly, though the analysis above reveals areas of needed reform, it also reveals that these two countries—both of which are now experiencing acute institutional crises—each possess foundational legal documents that are of potential use in initiatives for addressing post-conflict (and inter-conflict) concerns. These foundational documents may have been obscured by neglect and other institutional abuses which clouded their worth, but beneath the years of institutional abuse and tangled autocratic convolution, one finds solid legal substrata in Libya and Syria upon which international and domestic actors can build.

Conclusion

Both Libya and Syria are now experiencing dramatic legal, political, and institutional effects as a result of their respective revolutions. The “[p]ost-Qaddafi Libya suffers from a legal vacuum,” which has “created a chaotic situation that is scaring away the investors which Libya so badly needs after its civil war.” 418See Mathieu Galtier, After Qaddafi’s ‘Socialism,’ Libya Tries to Untangle Who Owns What, Christian Sci. Monitor (May 12, 2013, 12:04 PM), http://www.csmonitor.com/World/Middle-East/2013/0512/After-Qaddafi-s-socialism-Libya-tries-to-untangle-who-owns-what. Syria, still in the throes of its own revolution and heaving with torment, is experiencing that same legal vacuum in those regions where the state has been overrun by rebel forces. 419See Ben Hubbard, Islamist Rebels Create Dilemma on Syria Policy, N.Y. Times, Apr. 28, 2013, at A1. In both countries, solutions must be found for addressing the dire need for legal institutions that can serve as conflict resolution mechanisms. The Libyan and Syrian Civil Codes, which have survived for decades in inhospitable political environments, are natural legal sources to which international and domestic actors should look when exploring potential next steps and possible reconstruction efforts. The analysis above demonstrates many reasons these civil codes have survived for so long and should be instructive to policy makers eyeing potential courses of action in the aftermath of the Arab Spring.

One aspect of the durability of civil codes in the Middle East and North Africa may simply be the natural tendency of a polity to retain their legal system in spite of political change. As early as the nineteenth century, the celebrated French jurist Jean-Etienne-Marie Portalis described this phenomenon, noting that “conquered people and liberated people have always, in their capitulations and treaties, insisted upon maintaining their civil legislation.” 420See Jean-Etienne-Marie Portalis, Ecrits et Discours Juridiques et Politiques 21 (1988). A founding document may, thus, be insulated from repeal, even if other legislation serves to override its legal provisions, simply due to its historico-political or cultural significance.

A related reason that explains the continuing juridical life of these legal institutions is their aura of legitimacy—one which is derived from the fact that they are, in many ways, organically Middle Eastern legal institutions. Though derived from continental civil law, they were authored by a Middle Eastern comparativist, adopted by Middle Eastern governments (rather than imposed upon them), and—as this analysis has demonstrated—each incorporates Islamic law and Ottoman concepts and includes Islamic law as a potential subsidiary source of law. This element of historicity and Islamic linkage cannot be discounted as it permits “engagement with the internal discourses” of each society. 421See Sait & Lim, supra note 245, at 229. Otherwise stated, the hybridity of these mixed legal systems provides legitimacy which, in turn, nurtures their longevity.

But, perhaps even more fundamentally, civil codes have been noted for their durability because of their noted excellence as a system of laws. Portalis, in his commentary on the French Civil Code, remarked on the civil code’s “spirit of moderation and wisdom that has assured its duration,” 422See Planiol, supra note 159, at 33. describing it as “neither reactionary nor revolutionary.” 423Id. And, as Ziadeh notes when commenting on modern Middle Eastern civil codes, “the eastern Arab countries we have dealt with are now in possession of excellent civil codes where rights are neatly defined and where various rights to land are clearly spelled out.” 424See Ziadeh, supra note 73, at 3, 12. The quality of the Libyan and Syrian civil codes, therefore, contributes to their resilience.

As for the future that lies beyond the tumult of the Arab Spring, the characteristics inherent in Middle Eastern civil codes rooted in the French tradition (and assiduously preserved by Sanhūrī) portend well for continued viability in the post-revolution context. This is because of the post-revolutionary ethos inscribed into civil codes of French ancestry like those of Libya and Syria. This ethos exists because the French civil code, at its origin, was also a product of a violent revolution “[w]hich sought to eradicate the feudal institutions of the past.” 425See Zweigert & Kotz, supra note 136, at 74.

[I]n France it was the bourgeoisie which by revolutionary means had brought the socially obsolete institutions of the ancient régime, had founded the new state on the principle of the equality of citizens, and had then, out of this very situation, created a code which vindicated the demands of the Revolution for liberty and equality. Only in France was the Code the product of a revolutionary movement, only in France was there complete congruence between social reality and the idea of society on which the Code was based. 426Id. at 86.

The continental civil law tradition, therefore, naturally entails a focus on a citizen’s freedom to contract, to own property, and, as a general matter, a modern ethos that has served to make civil codes based on the French model an ideal template for so many countries and, in politics as well as literature, a symbol of modernity and legal evolution. Otherwise stated, civil codes are an icon of political progress and enlightenment. Even amidst the din and discordant cacophony of armed conflict, the modern world has generally looked to the civil law tradition and codification as a sign of progress. Tolstoy, for instance, places a central protagonist in War and Peace in charge of revising the Russian Civil Code in the conflict surrounding the French invasion of Russia using “both the Napoleonic Code and the Institutes of Justinian to help revise the section on Personal Rights.” 427See Leo Tolstoy, War and Peace 470 (Anthony Briggs trans., 2006). That iconicity is doubtlessly part of what inspired the early leaders of Libya and Syria, in the early days of their initial independence, to adopt those civil codes that are still in force. And post-revolutionary leaders in both Libya and Syria will have good cause to rely upon those same legal instruments as they guide their countries into the next stage of development.

To be sure, no civil code is perfect and, as this analysis has demonstrated, the civil codes of Libya and Syria could be improved in many ways. In fact, the civil codes of both Libya and Syria should be revised so that they can meet the demands of the twenty-first century in the same way as other civil codes throughout the world. A solemn, enlightened discussion should always serve to correct legislation and permit civil codes to evolve. Likewise, extracodal legislation which interferes with property ownership and inhibits investment should also be revisited. At the present time, however, it is important to recognize that, in both countries, workable civil law frameworks are in place that can serve as a basis for a strong society guided by fair laws. Reliance on those legal models will serve to facilitate stability and permit political evolution in the wake of revolution and so that—to paraphrase Portalis—these nations which have achieved liberty by arms will know how to preserve and affirm it by laws. 428See Portalis, supra note 420, at 63.

Footnotes

Dan E. Stigall is a trial attorney with the U.S. Department of Justice, Office of International Affairs, where he focuses on issues relating to North Africa, the Middle East, South Asia, and Southwest Asia. He currently serves as Senior Counsel to the Assistant Attorney General of the Criminal Division. He also serves as an Adjunct Professor of International Law at the The Judge Advocate General’s Legal Center and School (U.S. Army). He previously served on active duty in the U.S. Army JAG Corps from 2001-2009, serving in Europe, the Middle East, and the United States. LL.M., 2009, George Washington University School of Law; J.D., 2000, Louisiana State University Paul M. Hebert Law Center; B.A.,1996, Louisiana State University. Any opinion expressed in this Article is solely that of the author and not necessarily that of the Department of Defense or the Department of Justice.The author wishes to thank Professor Chibli Mallat and Professor Haider Ala Hamoudi for taking the time to read earlier drafts of this Article and providing insight based on their unparalleled expertise in Middle Eastern legal systems. The author also wishes to thank his dear friend, Professor Sean Foley, for his insights relating to the history and politics of the region. The author also wishes to thank Liz and Madeleine for their assistance at the Library of Congress.

1Marc Lynch, The Arab Uprising: The Unfinished Revolutions of the New Middle East 7 (2012) (“The uprisings that have profoundly shaped the Middle East began in a remote outpost of southern Tunisia on December 17, 2010, with the self-immolation of an unknown young man named Mohammed Bouazizi in protest against abusive and corrupt police.”); see also Wyre Davies, Doubt Over Tunisian ‘Martyr’ Who Triggered Revolution, BBC News (June 16, 2011, 8:56 PM), http://www.bbc.com/news/world-middle-east-13800493 (casting doubt on Bouazizi’s motives and impacts).

2See Lynch, supra note 1, at 9. But see Asher Susser, The “Arab Spring”: The Origins of a Misnomer, Foreign Pol’y Res. Inst.: E-Notes (Apr. 2012), http://www.fpri.org/enotes/2012/201204.susser.arabspring.html (“The tumultuous events that have swept through the Middle East during the last year or so were widely referred to in the West as the ‘Arab Spring.’”).

3See Lynch, supra note 1, at 7–8.

4See A.G., Tunisia and Democratic Transition, Global Brief (Mar. 9, 2011), http://globalbrief.ca/blog/2011/03/09/tunisia-and-democratic-transition/.

5Id.

6See Lynch, supra note 1, at 101 (“A veritable tsunami of protest swept the region as discontented publics took to the streets almost everywhere.”).

7See Scott Peterson, Egypt’s Revolution Redefines What’s Possible in the Arab World, Christian Sci. Monitor (Feb. 11, 2011), http://www.csmonitor.com/World/Middle-East/2011/0211/Egypt-s-revolution-redefines-what-s-possible-in-the-Arab-world (“As darkness fell over the winter-chilled Middle East on Friday, television screens lit up living rooms from Tehran to Damascus to Rabat. All eyes were riveted by the spectacle that just weeks ago seemed impossible: the toppling of Egypt’s President Hosni Mubarak after nearly 30 years in power.”).

8See Mohammed Hatem & Glen Carey, Yemen’s Saleh Agrees to Step Down in Exchange for Immunity, Official Says, Bloomberg (Apr. 23, 2011, 3:06 PM), http://www.bloomberg.com/news/2011-04-23/yemen-s-saleh-agrees-to-step-down-in-exchange-for-immunity-official-says.html (“Yemen President Ali Abdullah Saleh agreed to accept a Gulf Cooperation Council-brokered plan that allows him to cede power in exchange for immunity . . . .”).

9See Libya’s Col Muammar Gaddafi Killed, Says NTC, BBC News (Oct. 20, 2011, 10:02 PM), http://www.bbc.co.uk/news/world-africa-15389550.

10See generally Andy Carvin, Distant Witness: Social Media, the Arab Spring and a Journalism Revolution (2013) (discussing the use of social media in Egypt, Yemen, and Libya).

11See Lynch, supra note 1, at 176–77,186–87.

12See Jon Unruh & Rhodri C. Williams, Land: A Foundation for Peacebuilding, in Land and Post-Conflict Peacebuilding 1, 4–5 (Jon Unruh & Rhodri C. Williams eds., 2013).

13See Worldwide Threat Assessment of the U.S. Intelligence Community Before the Sen. Select Comm. on Intelligence, 113th Congress, 14 (2013) (Statement of James R. Clapper, Dir. of Nat’l Intelligence), available at http://www.dni.gov/files/documents/Intelligence%20Reports/2014%20WWTA%20%20SFR_SSCI_29_Jan.pdf (noting with regard to the Arab Spring that “[a]lthough some countries have made progress towards democratic rule, most are experiencing uncertainty, violence, and political backsliding. The toppling of leaders and weakening of regimes have also unleashed destabilizing ethnic and sectarian rivalries.”).

14See Unruh & Williams, supra note 12, at 4.

15Id.

16See Roland Paris, At War’s End: Building Peace After Civil Conflict 168 (2004).

17Id.

18See Unruh & Williams, supra note 12, at 4–5.

19See Robert D. Kaplan, Why Mideast Monarchies Survive, Forbes (June 19, 2013, 6:28 AM), http://www.forbes.com/sites/stratfor/2013/06/19/why-mideast-monarchies-survive/; see also Frédéric Volpi, Algeria Versus the Arab Spring, 24 J. Democracy 104, 104 (July 2013) (noting that Algeria not only survived the Arab Spring, but hardly deviated from previous patterns of governance).

20See Querine Hanlon, U.S. Army War College, Strategic Studies Inst., The Prospects For Security Sector Reform in Tunisia: A Year After the Revolution 5 (2012), available at http://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1118.pdf (“Although the country is small in size relative to other Middle East and North Africa (MENA) states, its armed forces have ably filled the vacuum created by the collapse of Ben Ali’s security apparatus and the defections of police throughout the country. While providing internal security, the armed forces have also secured the maritime and land borders, countered cross-border incursions from Libyan armed groups, and established five refugee camps for 1.6 million refugees, mostly from sub-Saharan Africa, fleeing the violence in Libya. The armed forces clearly ascribe to the concept of civilian oversight of the military, and although they are currently fulfilling a number of internal security tasks, they have publicly, and repeatedly, stated their intention to return to the barracks when the police can again fulfill their security functions.”).

21See Hafez Ghanem, Will Tunisia Follow Egypt?, Brookings (July 25, 2013), http://www.brookings.edu/research/opinions/2013/07/25-tunisia-egypt-democratic-reform-ghanem (“Tunisia has always been considered to be the ‘Arab Spring’ country most likely to succeed in its democratic transition. But recently, there have been worrisome signs.”).

22See Kiran Alvi, Searching for Stability, Tunisia Stumbles, NPR (Mar. 2, 2013, 6:08 AM), http://www.npr.org/blogs/thetwo-way/2013/03/02/173173569/searching-for-stability-tunisia-stumbles.

23See Souhail Karam, Moroccan King Names Islamist-led Cabinet, Reuters (Jan. 3, 2012), available at tp://www.reuters.com/article/2012/01/03/us-morocco-government-idUSTRE80218O20120103.

24See Kristian Coates Ulrichsen, Kuwait’s Crisis of Democracy, Fletcher F. World Aff., (Mar. 1, 2013), http://www.fletcherforum.org/2013/03/01/coates-ulrichsen/

25See Brian Murphy, Arab Drive for Political Reform Seen Shifting to Slow Lane, Associated Press (June 1, 2013), available at http://bigstory.ap.org/article/arab-drive-reform-seen-shifting-slow-lane. For an excellent exploration on the various poltical forces at work the Gulf states, especially in Bahrain, Kuwait, and Qatar, see Sean Foley, The Arab Gulf States: Beyond Oil and Islam (2010). Although Foley’s work was written prior to the Arab Spring, his exploration of the politics and governance of the region has continued relevance and is instructive for analysis of the Arab Spring’s aftermath.

26See Charles Levinson & Matt Bradley, In Egypt, the ‘Deep State’ Rises Again, Wall St. J. (July 19, 2013, 5:03 PM), http://online.wsj.com/news/articles/SB10001424127887324425204578601700051224658; see also David D. Kirkpatrick, Blood and Chaos Prevail in Egypt, N.Y. Times (Aug. 16, 2013), available at http://www.nytimes.com/2013/08/17/world/middleeast/egypt.html?_r=0; see also Samuel Tadros, Egypt’s Counter Revolution, Foreign Pol’y Res. Inst. (July 11, 2013), https://www.fpri.org/articles/2013/07/egypts-counter-revolution.

27See Camille Tawil, Morocco’s Stability in the Wake of the Arab Spring, 6 U.S. Army Combating Terrorism Center 18, 19 (2013), available at http://www.ctc.usma.edu/posts/moroccos-stability-in-the-wake-of-the-arab-spring.

28See Clapper, supra note 13, at 14 (“The struggles of new governments in places like Tripoli and Sanaa to extend their writs, as well as the worsening internal conflict in Syria, have created opportunities for extremist groups to find ungoverned space from which to destabilize the new governments and prepare attacks against Western interests inside those countries.”); see also Borzou Daragahi, Libya ‘Cannot Stop’ Fighters Joining Syria Rebels, Fin. Times (Feb. 9, 2012, 4:17 PM), http://www.ft.com/intl/cms/s/0/0976ef5e-5248-11e1-a155-00144feabdc0.html#axzz2vJKG1800.

29See United Nations High Comm’r for Refugees, Country Operations Profile–Libya (2013), available at http://www.unhcr.org/pages/49e485f36.html (“Having recently emerged from a historic revolution inspired by the Arab Spring, Libya is going through a delicate post -conflict transitional period that offers both opportunities and challenges.”).

30See United Nations High Comm’r for Refugees, Country Operations Profile: Syrian Arab Republic (2013) (“A year and a half of unrest in the Syrian Arab Republic (Syria) has displaced thousands of people and had a dramatic effect on one of the largest urban-refugee populations in the world. At the time of writing, the violence had reached Damascus and its suburbs, home to the vast majority of refugees from Iraq and other countries. Faced with growing risks to their lives, many refugees and asylum-seekers have opted to return to unstable countries of origin.”); see also Michael R. Gordon & Mark Landler, Kerry Cites Clear Evidence of Chemical Weapon Use in Syria, N.Y. Times (Aug. 26, 2013), available at http://www.nytimes.com/2013/08/27/world/middleeast/syria-assad.html (“Secretary of State John Kerry said Monday that the use of chemical weapons in attacks on civilians in Syria last week was undeniable and that the Obama administration would hold the Syrian government accountable for a ‘moral obscenity’ that had shocked the world’s conscience.”).

31See Michael A. Wilkinson, Between Freedom and Law: Hannah Arendt on the Promise of Modern Revolution and the Burden of ‘the Tradition’ 8 (London School of Economics and Political Science,Working Paper, 2011); see also Hannah Arendt, On Revolution 2728 (1963). There are, of course, pluralities of competing definitions of what comprises a revolution. See Malick W. Ghachem, The Old Regime and the Haitian Revolution 1 (2012) (citing a French Revolutionary Catechism as defining revolution as “a violent passage from a state of slavery to a state of liberty.”); see also H.L.A. Hart, The Concept of Law 118 (2d ed., 1997) (positing a more encompassing definition in which revolution “may entail only the legally unauthorized substitution of a new set of individuals as officials, and not a new constitution or legal system.”). The Arendtian definition used in this article, however, serves the function of distinguishing between political phenomena, which fundamentally replace existing institutions or power structures, and those which are merely a change in leadership. Such a definition also comports with recent scholarship on the durability of revolutionary regimes by Stephen Levitsky and Lucan Way, in which the authors exclude from the definition of “revolutionary regime” nations which emerge from independence struggles “in which radical transformational goals do not predominate” as well as “cases of mass-based regime change in which states and social structures remain intact.” See Steven Levitsky & Lucan Way, The Durability of Revolutionary Regimes, 24 J. Democracy 5 (2013).

32See Arendt, supra note 31, at 28.

33See generally Patrick E. Bryan, The Haitian Revolution and Its Effects (1984).

34See Mohammed El-Katiri, U.S. Army War College, State-Building Challenges in a Post-Revolution Libya vii (2012); See also General Assembly, Examination of Mediation Versus Military Intervention to Assist Regions Wracked by Conflict Focus of General Assembly Debate as It Enters Fourth Day, GA/11153 (Sept. 24, 2011) (“stressing the urgency of mass-scale institution building in a nation deprived of any real institutions or laws for over 50 years”).

35See Miloud Chennoufi, Opposition Syrienne: Composition et Responsibilités, Global Brief (June 17, 2013), .

36See Adam Baczko, Gilles Dorronsoro & Arthur Quesnay, Carnegie Endowment for Int’l Peace, Building a Syrian State in a Time of Civil War 1 (2013).

37Id. at 4 (“[T]wo contradictory dynamics have been observed on the ground, and it is impossible to predict the ultimate influence they will have over the state-building process. First, after initially organizing into small groups, the armed opposition is becoming progressively more engaged in state building. In particular, a civil administration and a regular army are taking shape. Second, certain revolutionary movements such as Jabhat al-Nusra li-Ahl al-Sham (Support Front for the People of Syria) and the Turkish Kurdistan Workers’ Party (PKK)—through its local Syrian arm, the Democratic Union Party (PYD)—are building parallel institutions.”).

38See Jonathan Di John, Conceptualising the Causes and Consequences of Failed States: A Critical Review of the Literature 33–34 (Crisis States Res. Ctr., Working Paper No. 25, 2008).

39See Jason Pack, Libya Is Too Big to Fail, Foreign Pol’y (Mar. 18, 2011), http://www.foreignpolicy.com/articles/2011/03/18/libya_is_too_big_to_fail.

40See Varun Vira & Anthony H. Cordesman, The Libyan Uprising: An Uncertain Trajectory, Ctr. for Strategic & Int’l. Stud. 14 (2011); see also Pack, supra note 39 (“What makes Libyan oil irreplaceable is its proximity to Europe, the ease of its extraction, and the sweetness of its crude. Because many refineries in Italy and elsewhere are built to deal with sweet Libyan crude, they cannot easily process the heavier Saudi crude that would inevitably replace a Libyan production shortfall.”).

41See Steven Erlanger, Syrian Conflict Poses the Risk of Wider Strife, N.Y. Times (Feb. 25, 2012), http://www.nytimes.com/2012/02/26/world/middleeast/syrian-conflict-poses-risk-of-regional-strife.html?pagewanted=all.

42See Clapper, supra note 13, at 14–15; see also Pack, supra note 39 (“If the West abandons the Cyrenaican rebels, it will not be a surprise to see more Cyrenaican fighters returning to Iraq by 2012. In fact, Libyans formed the third-largest fighting contingent in Iraq until U.S. counterterrorism cooperation with Qaddafi began to stem the flow in 2006. Similarly, during his détente with the West from 2003 until 2010, Qaddafi proved himself a reliable ally against the trans-Saharan networks of al Qaeda in the Islamic Maghreb.”).

43See United Nations High Comm’r for Refugees, Libya Country Profile, supra note 29.

44European Comm’n, 10 April 2014: Syria–Internally Displaced Persons and Syrian Refugees in the Region (Apr. 10, 2014), available at http://ercportal.jrc.ec.europa.eu/ercmaps/2014_04_10_ECHO_Syria_IDPsRefugees.pdf; see also Jeremy M. Sharp & Christopher M. Blanchard, Cong. Research Serv., RL33487 Armed Conflict in Syria: U.S. and International Response (2013).

45See Unruh & Williams, supra note 12, at 1.

46See Elizabeth Ferris, Syrian Displacement: The Human Consequence of the Continuing War, Brookings (July 24, 2012, 12:00 AM), http://www.brookings.edu/blogs/up-front/posts/2012/07/24-syria-ferris.

47See Dan E. Stigall, Courts, Confidence, and Claims Commissions: The Case for Remitting to Iraqi Civil Courts the Tasks and Jurisdiction of the Iraqi Property Claims Commission (IPCC), 2005 Army Law. 28 (Mar. 2005).

48See Peter F. Schaefer, Postwar Nation-Building, in Stability Operations and State-Building: Continuities and Contingencies 89 (2008) (“The rule-of-law must include both criminal and civil codes . . . .”).

49See Robert I. Rotberg, When States Fail: Causes and Consequences 33 (2004).

50See Deborah Amos, Courts Become A Battleground For Secularists, Islamists In Syria, NPR (Mar. 14, 2013, 4:55 PM), http://www.npr.org/2013/03/14/174327447/courts-become-a-battleground-for-secularists-islamists-in-syria (noting that one Syrian attorney in rebel-held territory “joined the court system to try to insert Syria’s civil code into . . . proceedings.”)

51See Mathieu Galtier, After Qaddafi’s ‘Socialism,’ Libya Tries to Untangle Who Owns What, Christian Sci. Monitor (May 12, 2013), http://www.csmonitor.com/World/Middle-East/2013/0512/After-Qaddafi-s-socialism-Libya-tries-to-untangle-who-owns-what.

52See Schaefer, supra note 48, at 89, 91, 10203.

53See Gordon Lubold, Breaking: Every Military Option in Syria Sucks, Foreign Pol’y (July 23, 2013), http://www.foreignpolicy.com/articles/2013/07/22/breaking_every_military_option_in_syria_sucks_dempsey_intervention_billion_dollars_a_month.

54See Headquarters, Dep’t of the Army, FM 3-07, Stability Operations paras. 6–34 (2008) (“The principles, policies, laws, and structures that form an [stability operations] program are rooted in the host nation’s history, culture, legal framework, and institutions.”).

55Id. paras. 6–91.

56See Asli U. Bali & Ziad Abu-Rish, Solidarity and Intervention in Libya, in The Dawn Of The Arab Uprisings: End Of An Old Order? 150, 153 (Bassam Haddad et al. eds., 2012) (“Unlike many other parts of the Middle East, Libya is a relatively unknown political context for outsiders whether they are progressive activists or conventional analysts.”).

57See Galtier, supra note 51.

58See generally Piotr Zalewski & Tal Rifaat, Syria’s Rebel Judges Promise Sharia Justice with Mercy, Time (Aug. 10, 2012), http://world.time.com/2012/08/10/syrias-rebel-judges-promise-sharia-justice-with-mercy/; Libya Assembly Votes for Sharia Law, Al-Jazeera (last updated Dec. 4, 2013, 4:32 PM), http://www.aljazeera.com/news/africa/2013/12/libya-assembly-votes-sharia-law-2013124153217603439.html; Noah Feldman, The Fall and Rise of the Islamic State 9 (2012) (“The call for an Islamic state is therefore first and foremost a call for law—for a legal state that would be justified by law and govern through it.”).

59See U.S. Agency For Int’l Dev., USAID Country Profile Property Rights & Resource Governance Libya 1 (2013) (“Donors could support the preparation of new policy in the areas of housing, commercial and industrial property, farm land, forest land, and real property generally that recognize, protect and enable the free exercise of private property rights. Donors could also support the drafting of laws, and assist in the establishment of land administration agencies, to implement these policies.”) [hereinafter USAID]; see also Galtier, supra note 51.

60See Pub. Int’l Law & Pol’y Grp., Planning For Syria’s “Day After”–Security, Rule of Law & Democracy 7 (2012).

61See Chibli Mallat, Introduction to Middle Eastern Law 3 (2007).

62See Di John, supra note 38, at 33.

63See George N. Sfeir, Modernization of the Law in Arab States: An Investigation into Current Civil Criminal and Constitutional Law in the Arab World 23 (1998) (“When legal modernization began in the 19th century, the Arab states were for the most part, in one form or another, territories of the Ottoman Empire.”).

64See Colin Imber, The Ottoman Empire, 1300–1650: The Structure of Power 1 (2002).

65See Dan E. Stigall, Iraqi Civil Law: Its Sources, Substance, And Sundering, 16 J. Transnat’l L. & Pol’y 1, 7 (2006).

66See Stanley Fisher, Ottoman Land Laws 1 (1919).

67See Mallat, supra note 61, at 242, 245, 248–49.

68See Amr Shalakany, Sanhuri and the Historical Origins of Comparative Law in the Arab World (Or How Sometimes Losing Your Asalah Can be Good for You), in Rethinking the Masters of Comparative Law 152 (Annelise Riles ed., 2001).

69Id.

70See Lama Abu-Odeh, Modernizing Muslim Family Law: The Case of Egypt, 37 Vand. J. Transnat’l L.1043, 1092–93 (2004).

71See Stigall, supra note 65, at 11, 13.

72See Nabil Saleh, Civil Codes of Arab Countries: The Sanhuri Codes, 8 Arab L.Q. 161, 162–63 (1993).

73See Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) 57 (2007). Ziadeh states that Sanhūrī actually drafted the Syrian Civil Code. See Farhat J. Ziadeh, Property Law in the Arab World: Real Rights in Egypt, Iraq, Jordan, Lebanon, Libya Syria, Saudi Arabia and the Gulf States 14 (1979). However, as discussed more fully in this article, the historical circumstances of the Syrian code’s implementation, quickly enacted shortly after a coup d’etat, make Sanhūrī’s direct authorship unlikely.

74See Saleh, supra note 72, at 163.

75See Helen Chapin Metz, Fed. Research Div. Library of Cong., Libya: A Country Study 3 (1987).

76Id. at 20–24.

77See Dirk Vandewalle, A History of Modern Libya 17 (1st ed., 2006).

78Id. at 24.

79 Id. at 38.

80Id.

81Id. at 39.

82Id. at 43.

83Id. at 47–48.

84Id. at 79.

85See Mustafa El-Alem, Libya, 1 Y.B. Islamic & Middle E. L. 225, 230 (1994).

86See Gamal Moursi Badr, The New Egyptian Civil Code And The Unification Of The Laws Of The Arab Countries, 30 Tul. L. Rev. 299, 303 (1955–1956).

87Id.

88See El-Alem, supra note 85, at 225.

89See Carnegie Endowment For Int’l Peace, Arab Political Systems: Baseline Information and Reforms–Libya 5 (2008), available at carnegieendowment.org/files/Libya_APS.doc.

90See USAID, supra note 59, at 4.

91See M. Al Gathafi, The Green Book 38 (Ithaca Press 2005).

92See USAID, supra note 59, at 3.

93Id. at 1.

94See generally Galtier, supra note 51.

95See Libya Interim Transitional Nat’l Council, Draft Constitutional Charter For the Transitional Stage: The Constitutional Declaration, 7 Feb. 2011, art. 16.

96Id. art. 35.

97See Philip K. Hitti, Syria: A Short History 213 (1959).

98Id. at 214.

99Id.

100Id. at 213, 228, 237.

101See Fed. Research Div., Library of Congress, Syria: A Country Study 18–19 (Thomas Collelo ed. 3d ed., 1988) [hereinafter Syria: A Country Study].

102Id. at 20.

103Id. at 24.

104Id. at 25.

105Id. at 26.

106Id.

107See Razi A. Diab, Religion and the Law in Syria, Arab cr. Int’l Humanitarian l. & Hum. Rts. Educ., available at http://www.acihl.org/article.htm?article_id=26.

108See Elizabeth Whitman, The Awakening of the Syrian Army: General Husni al-Za’im’s Coup and Reign, 1949: Origins of the Syrian Army’s Enduring Role in Syrian Politics 14 (Apr. 4, 2011) (unpublished Senior Thesis, Columbia University) (“Of Kurdish descent, he fought in the Ottoman army and was an officer in the troupes spéciales, the French mandate internal security forces. Although one of the army’s main grievances against civilian politicians was corruption, Za’im had no sparkling track record himself. In 1941, Vichy authorities entrusted him with 300,000 Syrian pounds to carry out guerilla attacks against Free French forces. Instead of carrying out orders, he stole the money, was arrested and brought to trial, and was sentenced to ten years of hard labor. At the end of the war he was released and reinstated in the Syrian army, but only after what Fansah claimed as “numerous interferences” on his own part. Even after Za’im’s reinstatement he was dissatisfied with his placement and rank, insisting on a transfer to Damascus.”).

109See Syria, A Country Study, supra note 101, at 27; see also Patrick Seale, The Struggle for Syria: A Study of Post-War Arab Politics, 1945–1958 passim (1987).

110Id.

111See Diab, supra note 107.

112Id.

113See Saleh, supra note 72, at 161, 163.

114See Syria Code Civil [Syrian Civil Code], Decret No. 84 du 15 mai 1949 (Syria); Lybian Code Civil [Libyan Civil Code], Jarida al-Rasmiyah, 13 Feb. 1954 (Libya).

115See Syrian Civil Code, arts. 92–767; Libyan Civil Code, arts. 89–810.

116See Syrian Civil Code, arts. 768–1130; Libyan Civil Code, arts. 811–1151.

117Libyan Civil Code, art. 1, para. 1.

118Id. art. 1(2).

119Id. (citation omitted).

120Syrian Civil Code, art. 1.

121Id.

122Id.

123See Algerian Civil Code, art. 1.

124See Law No. 131 of 1948 (Civil Code), Al-Jarida Al-Rasmiyya, 29 July 1948, art. 1 (Egypt).

125Id.

126See Law No. 40 of 1951 (Civil Code), art. 1(1) (Iraq) [hereinafter Iraqi Civil Code].

127Id. art. 1(2)

128Id.

129See Libyan Civil Code, art. 1(2); Syrian Civil Code, art. 1.

130See Karim Mezran & Duncan Pickard, Libya’s Constitutional Process: Moving Forward?, Atlantic Council (Apr. 22, 2013), http://www.acus.org/viewpoint/libya%E2%80%99s-constitutional-process-moving-forward.

131See Draft Constitutional Charter, supra note 98, art. 1.

132See Constitution of the Syrian Arab Republic, Feb 26,2012, art. 3.

133See Haider Ala Hamoudi, Repugancy in the Arab World, 48 Willamette L. Rev. 427, 427 (2012).

134Id. at 450.

135Id. at. 430–31 (citations omitted).

136See K. Zweigert & H. Kotz, An Introduction to Comparative Law 74 (Tony Weir trans., 3rd ed., 1998).

137Id. at 91.

138See Bechor, supra note 73, at 83.

139Libyan Civil Code, art. 879(1).

140Id. art. 1012.

141Country Profile: Libya: April 2005, Libr. Cong.: Fed. Res. Div., available at http://lcweb2.loc.gov/frd/cs/profiles/Libya.pdf (last visited Feb. 25, 2014).

142Syria: A Country Study, supra note 101, at 92.

143See Civil Code, preface v (Eth.) (1960).

144See Bechor, supra note 75, at 147.

145Id. at 147–48.

146Id. at 148.

147Id.

148Id. at 149.

149Libyan Civil Code, art. 89.

150Id. art. 90.

151Id. art. 91.

152Id. art. 120.

153Id. art. 93(1).

154Id. art. 94(1).

155Id. art. 94(2).

156Id. arts. 121–24.

157Id. arts. 125–26.

158Id. arts. 127–28.

159See Marcel Planiol, Traité Élémentaire de Droit Civil Conforme aux Programme Officiel des Facultés de Droit 165 (1923).

160Libyan Civil Code, art. 121(1).

161Id.

162Id. art. 121(2)(b).

163Id. art. 123.

164Id. art. 124(1).

165Id. art. 125.

166Id. art. 126.

167Id. art. 127(1).

168Id. art. 127(2). The fear does not have to be personal but can be fear for a third party. Id.

169Id. art. 127(3).

170Id. art. 128.

171See Planiol, supra note 159, at 165.

172Id. at 529.

173See Libyan Civil Code, art. 129.

174Id. art. 129(1).

175Id. art. 129(2).

176Id. art. 129(3).

177Id. art. 135.

178Id. art. 162.

179See Syrian Civil Code, art. 92.

180Id. art. 93(1).

181Id. art. 93(2).

182Id. art. 94(1).

183Id. art. 95(1).

184Id. art. 95(2).

185Id. art. 121.

186Id. art. 122(1).

187Id. art. 122(2).

188Id.

189Id. art. 126(1).

190Id. art. 127.

191Id. art. 128(1).

192Id. art. 128(2).

193Id. art. 129.

194Id. art. 130(1).

195Id. art. 130(2).

196Id. art. 130(3).

197See Planiol, supra note 159, at 33.

198See Bechor, supra note 73, at 323.

199See Paris, supra note 16, at 168.

200See Douglass C. North, Institutions, Institutional Change and Economic Performance 54 (1990).

201Salvatore Mancuso, Trends on the Harmonization of Contract Law in Africa, 13 Ann. Surv. Int’l & Comp. L. 157, 157 (2007).

202See Paul Collier, Ctr. for the Stud. of Afr. Econ., Development and Conflict (Oct. 1, 2004) (unpublished manuscript), http://www.un.org/esa/documents/Development.and.Conflict2.pdf (explaining that in the context of what factors make a country prone to conflict, the level of per capita income, the rate of growth, and the structure are most important risk factors).

203See generally Mallat, supra note 61.

204See Planiol, supra note 159, at 5–14.

205See James Maxwell, Political Islam in Post-Gaddafi Libya, Think Afr. Press (May 2, 2013, 1:43 PM), http://thinkafricapress.com/libya/political-islam-post-gaddafi-libya (“[T]he ongoing deadlock of Libyan politics and the structural weakness of the Libyan state 18 months on from the fall of Gaddafi provide space for anti-democratic organisations . . . to breathe.”).

206See, e.g., Kathleen Ridolfo, Iraq: Displacement Crisis Worsened by Violence, Radio Free Eur. Radio Liberty (Apr. 21, 2006), http://www.rferl.org/content/article/1067827.html (detailing campaigns of intimidation in Iraq).

207See Planiol, supra note 159, at 5–14.

208Richard A. Debs, Islamic Law and Civil Code: The Law of Property in Egypt 7 (2010); see also Farhat J. Ziadeh, Property Rights in the Middle East: From Traditional Law to Modern Codes, 8 Arab L.Q. 3, 4 (1993).

209Id. at 6.

210See id. at 8.

211Id.

212See Bechor, supra note 73, at 102-03.

213 See id.

214See U.S. Agency for Int’l Dev., USAID Country Profile: Libya—Land Tenure and Property Rights Profile 6 (2013).

215Id.

216See Libyan Civil Code, art. 82(1).

217Id.

218Id. art. 84(1).

219Id. art. 84(2).

220See Planiol, supra note 159, at 662.

221Id.

222See Libyan Civil Code, art. 811.

223Id. art. 812(1).

224Id. art. 813.

225Id. art. 814.

226Id. art. 812(2).

227Id. art. 812(3).

228See OpenOil, Libya Oil Almanac, An OpenOil Reference Guide, History of Libyan Oil and Gas Industry 1516 (2012).

229Id. at 16.

230See U.S. Energy Information Administration, Libya (2013), http://www.eia.gov/countries/cab.cfm?fips=LY.

231Id.

232Id.; see also Clapper, supra note 13, at 17 (“Libya has quickly resumed high levels of oil production, which is critical to rebuilding the economy. As of late 2012, it restored crude oil output to near preconflict levels of 1.6 million barrels per day, but Tripoli will need the expertise and support of international oil companies to sustain, if not boost, overall supply.”).

233See Debs, supra note 208, at 7; see also Ziadeh, supra note 73, at 8.

234See Ziadeh, supra note 73, at 3, 11.

235Syrian Civil Code, art. 84(1).

236See Ziadeh, supra note 73, at 8.

237Syrian Civil Code, art. 86 (2).

238See Sacha Hasan, Civil Society Participation in Urban Development in Syria 303 (July 2012) (unpublished Ph.D. dissertation, Heriot-Watt University), available at http://www.ros.hw.ac.uk/handle/10399/2596.

239See Fisher, supra note 66, at 1 (quoting the Ottoman Land Code).

240Nadia Forni, Land Tenure and Labour Relations, in Syrian agriculture at the crossroads, in FAO Agricultural Policy and Economic Development Series No. 8 (Ciro Fiorillo & Jacques Vercueil eds., 2003), available at http://www.fao.org/docrep/006/y4890e/y4890e0t.htm (“About 22 percent of cultivable land was confiscated because of land reform ceilings. This was only partially redistributed to farmers.”).

241See Debs, supra note 208, at 7; Ziadeh, supra note 73, at 8.

242Syrian Civil Code, art. 86(3).

243 See id. art. 85(2).

244 Id. art. 772.

245Siraj Sait & Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World 229 (2006).

246Syrian Civil Code, art. 86(4).

247See Sait & Lim, supra note 245, at 229.

248Id.

249 Syrian Civil Code, art. 86(5).

250 Id. art. 86(6).

251 Id. art. 768.

252 Id. art. 769(1).

253 Id. art. 769(2).

254 Id. art. 769(3).

255 Id. art. 770.

256 See id. art. 771.

257See Syria, U.S. Energy Information Administration (last updated Feb. 18, 2014), http://www.eia.gov/countries/cab.cfm?fips=SY (“In 1964, Syria passed legislation that limited licenses for exploration and investment to the Syrian government. The Ministry of Petroleum and Mineral Resources oversees the Syrian oil and natural gas sectors and is in charge of setting policy priorities and coordinating the efforts of the state led companies that operate in the sector . . . . The General Petroleum Company (GPC) oversees the strategies for exploration, development, and investment in Syria’s oil and gas sector, and supervises the activities of its numerous affiliated companies, including the Syrian Petroleum Company (SPC) and the Syrian Gas Company (SGC). The SPC is Syria’s largest state-owned oil company and has a number of production-sharing agreements (PSAs) in place throughout the oil sector.”).

258Id.

259See Planiol, supra note 159, at 697.

260See Libyan Civil Code, art. 953(1).

261Id. art. 953(2).

262Id. art. 960.

263Id. art. 962.

264Id. art. 963.

265Planiol, supra note 159, at 827.

266Debs, supra note 208, at 92.

267Id.

268Libyan Civil Code, art. 973(1).

269Id. art. 973(3).

270Id. art. 973(2).

271Id. art. 972.

272Id. art. 974.

273Debs, supra note 208, at 92.

274Id. at 9293.

275Libyan Civil Code, art. 980(1).

276Id. art. 980(2).

277Id. art. 981(1).

278Id. art. 981(2).

279See Planiol, supra note 159, at 828.

280Libyan Civil Code, supra note 118, art. 982(1).

281Id. art. 982(2).

282Id. art. 983.

283Id.

284Syrian Civil Code, art. 907(1)

285Id. art. 907(2).

286Id. art. 924 (1).

287Id. art. 924 (2).

288Id. art. 918 (1).

289Id. art. 917.

290Id. art. 926.

291Id. art. 927(1).

292Id. art. 927(2).

293See id. art. 928; see also supra notes 277–78 accompanying text.

294Debs, supra note 208, at 92.

295Code Des Droits Reels (Republique Tunisienne), Publications de l’Imprimerie Officielle de la République Tunisienne (2011), arts. 45-52; Code Civil (Algerie), arts. 827–36.

296Iraqi Civil Code, supra note 126, § § 1157–58.

297Planiol, supra note 159, at 862.

298Id.

299Id. at 871.

300Id. at 862.

301Libyan Civil Code, art. 992(1).

302Id. art. 991.

303See id. art. 996(1).

304Id. art. 997(2).

305Id. art. 996(2).

306Id. art. 992(1).

307Id. art. 994(1).

308Id. art. 994(2).

309Id. art. 992(2).

310Id.

311Id. art. 992(2).

312Id. art. 998(1).

313Id. art. 997(1).

314See id.

315See Planiol, supra note 158, at 892.

316Syrian Civil Code, art. 936(1).

317Id. art. 943.

318Id. art. 937.

319Id. art. 936(3).

320Id. art. 943.

321Id. art. 944(1).

322Id.

323Id. art. 944(2).

324Id. art. 945(1).

325Id. art. 945(2).

326Id. art. 948(1).

327Id.

328Id. art. 939(b).

329Id. art. 939(2).

330Id. art. 957(1).

331Id. art. 957(3).

332Id. art. 936(2).

333Id. art. 958.

334Id. art. 959.

335See Debs, supra note 208, at 93.

336Id.

337See Libyan Civil Code, art. 939.

338Id. art. 949(1).

339Id. art. 941(1).

340Id. art. 940.

341Id. art. 941(2).

342Id. art. 943(1)(a).

343Id. art. 943(1)(b).

344Id.

345Id.

346Id. art. 943(1)(c).

347Id. art. 943(2).

348Id. art. 947.

349Id. art. 944.

350See Ziadeh, supra note 73, at 48.

351See Planiol, supra note 159, at 901.

352Id.

353Id.

354See Libyan Civil Code, art. 1002.

355Id. art. 1000.

356See Debs, supra note 208, at 84.

357See Ziadeh, supra note 73, at 70.

358Id.

359See Libyan Civil Code, art. 1003.

360Id.

361Id. art. 1009.

362Id. art. 1004.

363Id. art. 1008.

364Id. art. 1012.

365Id. art. 1013.

366See Ziadeh, supra note 73, at 70–71.

367See Libyan Civil Code, art. 1014(1).

368Id. art. 1014(2).

369Id. art. 1015.

370Id. art. 1017.

371See Ivana Jaramaz-Reskušić & Zrinka Erent-Sunko, La Superficies – de Rome, à Travers Paris, Jusqu’au Québec, Croation Canadian Academic Soc’y, available at http://www.hkad.hr/3.zbornik-v5.pdf (last visited Apr. 14, 2014).

372See F.H. Lawson et al., Amos and Walton’s Introduction to French Law 95 (Oxford Univ. Press, 1963).

373See Ziadeh, supra note 73, at 62–63.

374Syrian Civil Code, art. 994.

375Id. art. 995(1).

376Id. art. 995(2).

377See Ziadeh, supra note 73, at 25 (“Sathīyah in Syria and Lebanon, musātāhah in Iraq and qarār in Egypt, have the same meaning, namely, the right to support, or the right to use the surface of the land.”).

378Id. at 22.

379See Syrian Civil Code, art. 997.

380Libyan Civil Code, art. 627.

381See Ziadeh, supra note 73, at 64.

382Id.

383Id.

384See Libyan Civil Code, art. 632.

385See Ziadeh, supra note 73, at 66.

386See Syrian Civil Code, art. 1002.

387Id. art. 998(3).

388Id. arts. 998(2)(3).

389Id. art. 1010.

390See Debs, supra note 208, at 84.

391Id.

392See Syrian Civil Code, art. 1004.

393Id.

394Id. art. 1006.

395Id. art. 1007(1).

396Id. art. 1009.

397Id. art. 1010.

398Id. art. 1008.

399Id. art. 1017(1).

400Id. art. 1017(2).

401Id. art. 1018.

402Id. art. 1022(1).

403Id. art.

404Id. art. 1022(2).

405Id. art. 1024.

406Id. art. 1021.

407See Chris Papageorgiou & Geoffrey K. Turnbull, Economic Development and Property Rights: Time Limits on Land Ownership, 19 Econ. Dev. Q. 271, 272 (2005).

408Id.

409See Siraj Sait, Unexplored Dimensions: Islamic Land Systems in Afghanistan, Indonesia, Iraq, and Somalia, in Land and Post-Conflict Peacebuilding, supra note 12, at 476.

410Id.

411See id. at 48081.

412See id. at 48284.

413See id. at 48587.

414See id. at 48789.

415See Syrian Civil Code, art. 86(4).

416Id. art. 772.

417See Dan E. Stigall, Refugees and Legal Reform in Iraq: The Iraqi Civil Code and International Standards for the Treatment of Displaced Persons, in Land and Post-Conflict Peacebuilding, supra note 12, at 217.

418See Mathieu Galtier, After Qaddafi’s ‘Socialism,’ Libya Tries to Untangle Who Owns What, Christian Sci. Monitor (May 12, 2013, 12:04 PM), http://www.csmonitor.com/World/Middle-East/2013/0512/After-Qaddafi-s-socialism-Libya-tries-to-untangle-who-owns-what.

419See Ben Hubbard, Islamist Rebels Create Dilemma on Syria Policy, N.Y. Times, Apr. 28, 2013, at A1.

420See Jean-Etienne-Marie Portalis, Ecrits et Discours Juridiques et Politiques 21 (1988).

421See Sait & Lim, supra note 245, at 229.

422See Planiol, supra note 159, at 33.

423Id.

424See Ziadeh, supra note 73, at 3, 12.

425See Zweigert & Kotz, supra note 136, at 74.

426Id. at 86.

427See Leo Tolstoy, War and Peace 470 (Anthony Briggs trans., 2006).

428See Portalis, supra note 420, at 63.