Law and the Lodestar: Tunisian Civil Law and the Task of Ordering Plurality in the Aftermath of the Jasmine Revolution
Journal of Civil Law Studies, Vol. 7, p. 1, 2014
59 Pages Posted: 2 Nov 2014
Date Written: October 31, 2014
In the wake of the Arab Spring, Tunisia is now emerging as a model for Arab Spring countries seeking a successful transition to democracy. Its recent success in completing its new, post-revolution constitution demonstrates its leading role in the region. As such, legal developments within Tunisia carry the potential for regional impact as other countries seek to emulate its successful transition.
The purpose of this article, therefore, is to provide a close examination of Tunisian civil law – a critical aspect of the Tunisian legal system and one which has served as a major conflict dampener throughout modern Tunisian history. This article analyzes the domestic civil law in force in Tunisia and demonstrates that, for well over a century, Tunisia has maintained a “mixed” civil law system which incorporates elements of continental civil law (derived from European codes), Islamic law, and Tunisian custom. Tunisian civil law, thus, regulates the ordinary affairs of Tunisians in a manner that is consistent with both modern legal norms and the tenets of Islamic law. This fact takes on special significance in light of ongoing political debates centering around the role of Islamic law in Tunisian society, the new Tunisian constitution, and the contemporary debate on Islam and secularism. It is also worthy of note in light of extremist narratives that suggest the Tunisian government or contemporary Tunisian law is “unIslamic.”
Notably, the article also highlights Tunisia's rich legal history and the story of David Santillana – a Tunisian jurist from a Jewish family of European ancestry – who became an expert in Islamic law and was the principal drafter of the Tunisian Code of Obligations and Contracts, a masterful piece of legislation which remains in force today as Tunisia’s primary civil law document.
Lastly, because Tunisia is now emerging as a model for Arab Spring countries seeking a successful transition to democracy, the article posits that legal developments within Tunisia carry the potential for regional impact as other countries seek to emulate its successful transition. In that regard, the Tunisian code demonstrates how Islamic law can function in a modern context alongside continental civil law as part of a mixed jurisdiction in which domestic civil law is derived from a multiplicity of sources. Other countries in the region may, therefore, benefit from the Tunisian experience as they look to develop civil laws which are modern, yet compatible with their legal traditions, customs, and Islamic legal precepts.
Keywords: Tunisia, Tunisian law, Islamic law, Arab Spring, comparative law, Tunisian civil law, Jasmine Revolution, mouçakâte, moughâraça, magharisah, Tunisian civil code, Tunisian Code of Contracts and Obligations, Code of Contracts and Obligations, Islamic law
JEL Classification: K00, K12, K33, K40, K49
Suggested Citation: Suggested Citation