The Santillana Codes, by Dan E. Stigall


Upcoming program

The Friends of the Law Library of Congress, together with the Embassy of Tunisia, the Law Library of Congress, and the African and Middle Eastern Division

 

Celebrate the launch of

The Santillana Codes: The Civil Codes of Tunisia, Morocco and Mauritania

 

Thursday, October 26, 2017
6:00 p.m. to 8:00 p.m. 

Library of Congress

Northeast Pavilion, Second Floor
Thomas Jefferson Building
10 First Street S.E.
Washington, DC 20540

This event is free and open to the public.  Registration required.

 

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To Register:

https://www.eventbrite.com/e/the-santillana-codes-the-civil-codes-of-tunisia-morocco-and-mauritania-lecture-tickets-38781482458?invite=&err=29&referrer=&discount=&affiliate=&eventpassword=

 

With generous support from


Now Available for Purchase on Amazon


From the Author:

At the outset, I would like to thank Emily Rae and the Friends of the Law Library of Congress for the opportunity to briefly discuss my forthcoming book and the crucial role played by the Law Library of Congress in my research. 

Libraries are temples of knowledge and, thus, for a comparative lawyer and avowed bibliophile, the Law Library of Congress is especially sacred ground.  Indeed, the importance of institutions like the Law Library of Congress is underscored by the history of law in the Maghreb and Sahel – a history of legal knowledge maintained in obscure but vital institutions such as the Zeituna Mosque in Tunis, the Qarawiyin Mosque in Fez, and the “desert libraries” of the Sahara which have long served as remote fortresses of knowledge and repositories of ancient manuscripts.  The knowledge preserved within such institutions persists through conflict and political volatility, guarded and maintained by scholars and librarians who preserve the embers of ancient learning that ignite the fire of human thought.  The learning of great jurists is maintained on their shelves for posterity to enrich contemporary research, broaden our thinking, and to enlarge our supply of potential solutions.

Libraries are temples of knowledge and, thus, for a comparative lawyer and avowed bibliophile, the Law Library of Congress is especially sacred ground. 
— Dan E. Stigall, Author

It was in the Law Library of Congress that I did a significant part of my research for my forthcoming book, The Santillana Codes: the Civil Codes of Tunisia, Morocco, and Mauritania.  In that book, my objects of focus are the civil codes in force in Tunisia, Morocco, and Mauritania.  The book also explores the history of their “intellectual father” – a Jewish man from Tunisia named David Santillana (1855 – 1931) who was a masterful comparativist and an expert in both Islamic law and European legal systems.  It also touches on the importance of civil codes in facilitating stability in volatile regions. 

These subjects are difficult and intriguing due to the persistent lacunae in the literature regarding the law and legal history of Maghrebian and Sahelian states—a veil of obscurity which has served to undervalue African, Islamic, and Jewish contributions to global legal development.  The aim of my forthcoming book is, therefore, to dispel this obscurity by illuminating the work of David Santillana, an influential jurist and lawyer who worked in North Africa and Europe during the latter nineteenth and early twentieth centuries and his innovative approach to codification.  Beyond that, I aim to show how the legal histories and cultures of each relevant country contributed to this distinct class of uniquely African civil codes that are still in force today in a legal arc that extends from the Maghreb to the Sahel.

With regard to the central person in the book, David Santillana is a fascinating figure in legal history – but one equally relevant to African and Jewish history.  Born into a cosmopolitan Jewish family in Tunisia with considerable political influence, he was initially educated at an Italian school in Tunis, but completed his secondary studies in England.  He then returned to Tunisia in 1873 to begin his government career, serving as Secretary of the Commission financière internationale (a commission created in 1869 to address Tunisia’s fiscal problems) and also as an interpreter to the Bey in the département des Affaires étrangères.  In that latter capacity, Santillana became acquainted with Odoardo Maggiorani, an Italian jurist and member of the bar of Florence who would eventually become legal counsellor to the Bey in 1875.  Influenced and assisted by Maggiorani, David Santillana later resigned from his post as Bey's translator and enrolled at the University of Rome in 1880. 

After graduating in 1883, he began work as an attorney both in Rome and Florence – obtaining Italian nationality and developing expertise in Roman and Italian law.   Throughout his career, he continued to play a role in controversial legal matters across North Africa, such as the legal defense of Ahmed Orabi, an Egyptian military officer who staged a revolt against the British and French presence in Egypt.  He also briefly taught at the University of Cairo but, for reasons relating to declining health, returned to Italy where he taught Islamic law at the University of Rome from 1913-1923. 

At the Law Library of Congress, I was given free access to materials from over 240 foreign jurisdictions, including some books and materials that were impossible to locate elsewhere.  Holding over 2.8 million volumes, it is the largest law library in the world – all of which, quite remarkably, can be accessed by any scholar who needs access to them. 
— Dan E. Stigall, Author

When the Commission for the Codification of Tunisian Laws was established in 1896, Santillana was a natural choice to preside over the commission along with four French legal scholars.  Those scholars, all of which had roles in the Tunisian government and/or judiciary, were S. Berge, MM. Roy, Padoux, and Anterrieu.  This commission would produce a draft civil code (presented in an Avant-Projet) which would form the basis for the code to come.  To create this remarkable piece of legislation, Santillana and his team would draw on a plurality of sources, namely the French civil code, the German civil code, the Italian civil code, several schools of Islamic jurisprudence (especially the Malikite and Hanafite schools), and the Ottoman Mejelle.  Their work was further influenced by Tunisian custom, French jurisprudence, and the jurisprudence of French courts that were active in Tunisia during its time as a French protectorate.  The character of the Tunisian code, therefore, is as diverse and cosmopolitan as its principal author.  This demonstrates not only the remarkable tapestry of Tunisian legal history, but the importance of institutions that maintain the stores of documents required to create such a rich and eclectic codification.

From the earliest phases of this novel project, Santillana and his team fully understood that this undertaking presented both legal challenges and challenges related to the bias of some who did not believe a synthesis of European and Islamic law was possible.  In the introduction to the Avant-Projet of the Tunisian code, Santillana notes, “That portion of the objective of this work that related to Islamic law presented special difficulties.  According to a widely held view, it would be chimerical to attempt at conciliation between our law and the doctrines of Islam.”  In response to such bias, Santillana noted that there is a perceived rigidity to Islam that makes such synthesis impossible, but that all religions have fixed dogmas that cannot be changedand that nothing in Islamic law or the Muslim faith served as an obstacle to his task. 

The creation of such a code—successfully addressing the needs of so diverse a polity—was a complex endeavor, but the model that emerged from their efforts was a successful one.  The countries of Morocco and Mauritania would later adopt codes based on the Tunisian prototype, though they altered the model to suit the needs and demands of their own countries.  The Moroccan Dahir des obligations et des contrats (DOC), based largely on Santillana’s work in Tunisia, was promulgated in 1913.  Decades later, on September 14, 1989, using the Moroccan code as a template, Mauritania would enact the Mauritanian Code of Obligations and Contracts – a code based on the Moroccan code which, in turn, was based on the Tunisian code. The Mauritanian code, therefore, resembles the Moroccan code more closely than its Tunisian progenitor—and its provisions were further modified to make the Islamic prohibitions incorporated of general applicability.  Nonetheless, for each code the basic framework and style of the Santillana approach to codification remains intact:  the same substantive rules (drawn from a plurality of legal sources) apply for obligations in general; the same rules for vices of consent, including Santillana’s innovative approach to error; the same hybrid concept of lesion; the same basic substance for the nominate contracts of sale, exchange, deposit, and mandate; etc.  Their differences notwithstanding, the major substance of all three codes is based on the paradigm created by Santillana and his fellow scholars—and it is proper to refer to this family of codes collectively as the Santillana Codes.

I am grateful to the staff of this excellent institution for their assistance in my research and am honored to know that my forthcoming book will soon be numbered among the universe of worthy titles they maintain.
— Dan E. Stigall, Author

These codes, their intellectual father, and the countries in which they are enacted are all fascinating topics of study.  A fulsome exploration of such topics, however, is not possible without an institution dedicated to preservation and maintenance of legal knowledge.  At the Law Library of Congress, I was given free access to materials from over 240 foreign jurisdictions, including some books and materials that were impossible to locate elsewhere.  Holding over 2.8 million volumes, it is the largest law library in the world – all of which, quite remarkably, can be accessed by any scholar who needs access to them.  I am grateful to the staff of this excellent institution for their assistance in my research and am honored to know that my forthcoming book will soon be numbered among the universe of worthy titles they maintain.

Dan E. Stigall is an attorney with the National Security Division of the U.S. Department of Justice (DOJ), where he has served as a counterterrorism prosecutor and Counsel for Counterterrorism Policy to the Assistant Attorney General. From 20092015, he worked as a Trial Attorney and Coordinator for International Security Affairs with the DOJ Office of International Affairs. In that capacity, he focused on international cooperation with countries in Africa, Asia, and the Middle East (including Tunisia, Morocco, and Mauritania). He previously served on active duty as a U.S. Army Judge Advocate (JAG) from 20012009, serving in Europe, the Middle East, and the United States. He has also served as an Adjunct Professor of International Law at The Judge Advocate General's Legal Center and School (U.S. Army) and continues to serve as an officer in the U.S. Army Reserves. In addition, he is a Contributing Fellow for the Louisiana State University Center for Civil Law Studies.