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Prospectus

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Law and Society: North Africa and the Middle East

Course
2012-2013

Tag(s)

LSD, GJ, ID, GC

Admission Requirements

Similarly tagged 200-level courses. Students that do not meet this prerequisite should contact the instructor regarding the required competencies before course allocation.

Description

This course addresses the formation and functioning of legal systems in societies in the Middle East/North Africa. In order to gain some depth, two countries in his region have been selected, i.e. Egypt and Libya.

Week 1. (Lecture by Prof. Jan Michiel Otto)
In 2011 and 2012 both Egypt and Libya underwent far-reaching social and political changes, as part of ‘The Arab Spring’. This course will look at law and society in Egypt to learn more about what is generally regarded as the most prominent legal system of the Middle East. In contrast, our excursions into law and society of Libya will be of a more exploratory nature, since during the Kaddafi-era legal developments in this country were hardly made known outside Libya. Inside Libya this one-man rule of 42 years has seen few contributions to the rule of law, and many violations thereof.

Week 2. (Lecture by Dr. Jessica Carlisle)
Women have played important roles in the transitions. Will they also reap the benefits, in terms of a better social and legal position? In recent decades, the legal status of women in the MENA-region, as impacted by sharia and national law, has already drawn much attention. It will be discussed through a historical overview of changing legal and political ideologies of the rights of women in the family in both Libya and Egypt, and an assessment of to what extent state policies and laws have really changed women’s status and opportunities. The importance of socio-economics and class will be highlighted as shaping the choices and legal strategies of Libyan and Egyptian women, as will women’s own aspirations and senses of their entitlements. Recent reforms to divorce law and practice in Egypt will discussed as well as the question to which extent the Egyptian government’s attempts to prevent female genital mutilation have been successful, and why so.

Week 3. (Lecture by Prof. Jan Michiel Otto)
The transitions have often found their expression in constitutional and legal changes. Constitutions, also in the MENA-region, set the main rules of the national political game: ideological principles, roles of and relations between legislature, executive, judiciary, and the head of state, as well as the relations between state and citizens, notably human rights. Whereas Saudi Arabia and other Gulf states have opted for a state without constitution, as they formally consider the Koran as the state’s normative foundation, and ‘the sharia’ as the law in force, the constitution in Egypt has been an important guide through turbulent times. Both in Egypt as well as in Libya the drafting of a new constitution is expected to take center-stage.

Week 4. (Lecture by Dr. Jessica Carlisle)
Criminal law and practice will be considered from the perspective of interactions between various centers of power. Colonial occupation, post-colonial state interests, religious authorities and society have all contributed to the way in which criminal legislation and criminal law-in-practice have developed in both Egypt and Libya. The normative justification and applications of criminal law will be considered, with reference to legislative and social debates in Egypt about how to deal with crimes of sexual violence.
In the aftermath of the ‘Arab Spring’ foreign governments and international NGOs have also questioned whether Libya’s criminal justice system is ‘fit for purpose’. This has led to disagreement between the International Criminal Court in the Hague and the Libyan government about where the trial of Saif al-Qaddafi should be held.
In addition, it should be noted that state law is not the only means by which criminal cases are heard, since disputes may be resolved by informal, non-state actors, in the case of Libya notably ‘tribal leaders’, and more recently also ‘revolutionaries’.

Week 5. (Lecture by Prof. Jan Michiel Otto)
Whereas international media, the international community, and academic research are mostly focused on what happens at the national political centre, the interactions between citizens and their government are mostly local. Decentralisation and local government in Egypt have a long history, dating back to the Ottoman period and before. Today the state acts locally through various institutions. Which are those local institutions, what services do they provide, and how do they relate to local communities? As a point of reference, we shall look at village government in Middle-Egypt 30 years ago, and at the establishment of a local development project. We will try to trace some changes since, looking at the last local elections before the Arab Spring, held in 2008.

Compared to Egypt, state formation, decentralisation, and modern local government in Libya, which became a state only in 1951, are of recent date. All existing state institutions suffered heavily from Kaddafi’s arbitrary rule. Today a major challenge for Libya is to build a legitimate, well-equipped local government to help reconstruct the country. The issue of decentralization is now heavily politicized as many actors, especially in the East of Libya, claim regional autonomy. On 31 July the NTC passed a new Local Government Law. We will look at whether this law provides suitable mechanisms to resolve the problems which local governments in Libya are presently facing.

Week 6 (Guest lecture by Judge Ahmed Tawfik, from Cairo)
Access to justice in Egypt will be addressed from two perspectives. First, we will focus on the institutional points of access to justice, which are police, prosecution and courts, highlighting specific factors related to each institution impeding access to justice. These specific factors include the following:

  • For police, the lecture will address the corruption of a considerable part of the officers and enlistees, brutality and bad treatment of the people by the police, and finally the collapse of the Egyptian police after the revolution of 25 January 2011.

  • For the prosecution, the lecture will address the corruption of a considerable part of the clerks as well the lack of experience of the new generations of prosecutors.

  • For the courts, the lecture will address the deficiencies of the case flow system as well as the problem of the execution of sentences, and finally, again, the corruption of a considerable part of the clerks.
    The second perspective will look at general factors hindering access to justice which are: the economic and social factors, the alternative disputes resolution and finally the dysfunctionality of the legal aid system.

Week 7. (Lecture by Prof. Jan Michiel Otto).
In the last week, this course will look at access to justice in Libya, with a focus on transitional justice, and institutional development. Transitional justice in Libya refers mainly to hearing and finding remedies for the atrocities and injustices committed since the beginning of Kaddafi’s Revolution in 1969. With support of the UN Support Mission In Libya (UNSMIL) a new law was drafted and issued to regulate this massive undertaking, and a new Commission was established chaired by a former President of Libya’s Supreme Court to handle all cases. We will look at how the new Libyan government tries to find its way through the many painful dilemmas regarding justice, truth, and reconciliation, and how it interacts with local demands as well as international pressures.

Finally, we will look at Libya through the lens of institution-building in the Post-Kaddafi era. In contrast to most countries of (North) Africa, Libya is fairly rich. It is about to have a new constitution, and many new laws. Yet, development, rule of law and good governance require more than financial resources and laws only. In the last seminar we will discuss what is needed to assist states in the Middle East and North Africa, to build institutions which are based on law, responsive to their citizens, and successful in development – notably in the case of Libya.

Course Objectives

  • To provide an insight into historical and contemporary legal developments in the MENA-region, notably in Egypt and Libya

  • To acquire a general insight into law and governance prevalent in those countries

  • To understand the complicated relationship between law and society, as it plays out in the MENA-region.

  • To acquire some insight in the actual working of these law and governancel systems, their interaction with society, and the legal remedies to which citizens in given contexts have veritable access

  • To understand the importance of sharia and custom in the state legal system and in local realities, and the complicated relationship between sharia, custom, and statutory law.

  • To develop a critical understanding of the prevailing conceptual framework for an understanding of these issues (law, legal system, access to justice, transitional justice, good governance, decentralisation, legal pluralism)

  • To apply this framework within the context of a number of selected case studies

  • To understand what law can and cannot do in addressing the main challenges faced by countries in the MENA-region, notably Egypt and Libya

  • To obtain some idea of how the international community deals with rule-of-law related problems, esp. in Libya

Mode of Instruction

Plenary lectures: 2-hour, 7 weeks
Workgroup / Seminar / Tutorial: 2-hour, 7 weeks

Assessment

TBA

Literature

Berger, M. and N. Sonneveld (2010), ‘Sharia and National Law in Egypt’ in: Sharia incorporated: a comparative overview of the legal systems of twelve Muslim countries in past and present, J.M. Otto (ed.), Leiden: Leiden University Press, pp. 51-72

Otto, J.M. (1993), Cooperative Institution Building in Rural Egypt. Social, administrative, and legal aspects of a village development project, paper presented to the Regional Seminar on the Role of Non-governmental Organizations in national Development Strategy, Cairo 28-31 March 1993

Otto, J.M., (1995), Jurists, Nation Building, and Social Tensions in Egypt. In B. Galjart and P.Silva (eds.), Designers of. Development; Intellectuals and Technocrats in the Third World. Leiden: CNWS Research School, pp. 107-128

Website Daily News Egypt: Politics

Recommended Literature & Other Sources

Hyden, G.(2004), Julius Court and Kenneth Mease, Making Sense of Governance, London: Lynne Rienner Publishers, pp. 18-25

Otto, J.M., (2010), Preface, and Introduction (Ch.1), in: Sharia incorporated: a comparative overview of the legal systems of twelve Muslim countries in past and present, J.M. Otto (ed.), Leiden: Leiden University Press, pp. 11-15 and 17-49 (check)

Contact Information

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Preparation for first session

None