On the rule of law in the Arab world:

Lessons contemporary and classical

Chibli Mallat*

The following remarks consider the rule of law in the wider context of the profession, or the ensemble of professions which use law as a full-time bread-winning activity. The chapter seeks to put a provisional conclusion to a two-decade long investigation. On its contemporary side, it draws on my limited experience in a number of countries, most recently as advocate in Lebanon and in some Arab and European jurisdictions, earlier in legal consultancy in the US and in Britain, throughout as observer (and liminal actor) of the long and short-term public scene from a legal angle, and finally as aspiring scholar and teacher of Middle Eastern Law seen as discrete field, that is a self-standing, special, and coherent “member” of the world family of laws. On its classical side, the paper uses the manual for judges of a judge (qadi) living in the Levant in the 13^th century, together with some material in and around the classical age as reflected in published and archival sources, with a view to ascertaining patterns in the authority of law as it operated in court during the classical age.[1] Why is that manual important?

In a wide-ranging volume on the rule of law in comparative and multi-disciplinary perspective, the editors concluded their introductory remarks by reflecting on “[t]he preconditions that make the rule of law possible.”[2] These, they note further, rest on “a functioning, independent judicial system [as] a key element in the maintenance of civil society and the possibility of non-military settlement of disputes.” Although one might lose sight of this “underlying” truth, the judge is the main repository of legal adjudication, hence the centrality of “the judge as metaphor” for the stability and fairness of all contemporary societies.[3] While the stability of some pre-modern societies does not necessarily conform to the centrality of that metaphor – for instance judges and courts seems far less important in pre-modern East Asia and Central Africa -, this is not the case in the classical Arab-Muslim world, where the importance of the judge, and of the law in general, can hardly be doubted. A manual for the classical judge offers therefore an important contrast to the everyday life of his successors in the modern Arab world. And it is the judge who is central in the Arab-Islamic tradition, not the other legal professions which come to mind. Amongst the many professions connected in some way to the law, -- the main three being law teacher, lawyer and judge,--  the metaphor of the judge is the most compelling, insofar as decision-making over matters of importance to parties in conflict rests with him: “[T]he priority of the judicial form of dispute resolution is a function of the fact that it is judges who must ultimately define the authority that mediators, arbitrators, and special masters exercise ─ not the other way around ─ and so long as this remains true, judges and the work they do are bound to retain the position of dominant importance they have occupied in our legal culture from the start.”[4] This is not unique to the American context. The judge as metaphor is a universal image, at least in civilizations where law is recognised as a separate, if not autonomous, exercise. In the Middle East, it has arguably the deepest written pedigree on earth.[5]

In a reflection on the rule of law in the region which straddled the best part of two decades, one must draw sobering conclusions, against so many false starts and discouraged hopes, about the effectiveness of the judge and the court over which he presides as a soothing human recourse for litigants in the contemporary Middle East. When the research started into the “noblest” dimension of judgeship, constitutional review, for the first time in its history Egypt was witnessing a Supreme Constitutional Court (SCC) operating as an institution, with a recognizable leadership, serious case-writing, and rising judicial censorship of executive and legislative acts over a consistent number of years. More importantly, the citizen was seeing some of her fundamental rights recognized and defended in court.

Twenty years later, accumulated case-law is there, testimony to a good day for the SCC, but the Court acts less and less as a deciding voice in the Eyptian public place.[6] In other countries of the region, the drive towards constitutional review continued and expanded, but the experiment in the latest country to join the happy few, Lebanon, had collapsed in 1997.[7] Constitutional review was also happening in Iran, and in Israel. The Arab world was compelled to watch  the experiments around it, with Israel as an “enemy” turned “partner” during the Oslo Accords (at least with some of the Arab countries surrounding it), and with Iran as a stern competitor in terms of Islamic legitimacy.

In the least known experiment, that of Iran, the proper review of legislation and electoral processes, which had formally started in 1979, was scuttled by the members of the Council of Guardians (shura-ye negahban, roughly equivalent to the French Constitutional Council), themselves overstretching their power to prevent Parliament and the reformist president from carrying on of the popular demand for freedoms and participation.[8]  The most recent victim of once high expectations is the Israeli Supreme Court, which is not only incapable of responding to the legitimate demands for minimal protection by the non-Jewish minority in Israel,[9] but has managed to consecrate in law the authoritarian behaviour of the executive branch in ways that neither international standards nor natural law are able to condone.[10]  Against an embattled daily scene between Palestinians and Israelis for the past three years, this collapse does not come as a surprise, and few would question the retreat of law in the face of open and heartless violence on both sides. But the phenomenon strikes root in ways not yet well thought, and we must adjust our appreciation of the nature of the governments of Israel since the inception of the state in 1948.[11]

Similar results appear across the Arab world: in Algeria, the Constitutional Council, and the courts at large, are meaningless in a context of daily ruthlessness exercised by both the military government and the Islamic extremist groups. In Yemen, the reliance on the judiciary collapsed ever since the civil war in 1994.[12]

Across the Arab world, the name of the game is rule by law instead of rule of law, and the problem is not merely in the undermining of constitutional review. The disappointment is strongest for rule of law advocates who have become frustrated with their own call for democracy, a universal call which they were hoping to see extended to the region after the collapse of the Berlin Wall and the democratization trend in many parts of the world. The Arab world reamined the one notable exception. Beyond the understandable dejection resulting from the collapsed legal and democratic process at large, the loss of faith in the judiciary is actually the graver dimension of the trend downwards, not only as hopes were raised only to be betrayed, but also because the executive had learnt the game so well that it systematically and skillfully stacks the top judiciary with personages after its own fashion. This is not limited to the Public Prosecutors ­-- or their equivalents in the various jurisdictions --, but extends to the supreme courts’ judges within each jurisdiction, and sensitive judgeships down the ladder. Reversing that process may take years, meanwhile the authority of the law is undermined in its most “central and decisive one for the profession as a whole.”[13]

As if part of a cycle in King Lear’s “wheels of fire”,[14] one wonders whether the rule of law advocates have not themselves scalded the state apparatus of repression in molten lead made of law: so much so that the legal professional is forced to reconsider his bread-winning daily dedication in an existential manner. One must nowadays be content with small victories to keep at the job. While faith in the authority of the law and its fairness reemerges on the occasional courage of one bench, in tiny consolations one has to acknowledge if only for prosaic interests -- with the crass termination of faith in the rule of law and in the courts which ultimately embody it, we would all go home… -- the reality is daunting.

So one fights tooth and nail to protect the authority of the law, with a cynical doggedness that perpetuates the outward shell of the system, in the hope that one day, a Marshall-like judicial Phenix rises through the safety nets devised by executive power, by stealth through the ruse of reason (in Hegel's Philosophy of History), or, also in a Hegelian metaphor, by the necessity of the ‘rule of law-State’ understood as the ultimate historical embodiment of the Spirit (in his Philosophy of Law).

Meanwhile also, other soothing considerations operate to relativise daily disappointments on a number of temporal and spatial lines. Some are thematic, when the use of law is managed to enhance the lawyer’s financial well-being with some crafty commercial settlements; some are geographic, both horizontal and vertical.

Horizontally, loss of faith on the Egyptian scene, for example, is redeemed with a sudden opening in Bahrain, or in Morocco. A crackdown in Lebanon forces the Arab observer to take emotional shelter in Israel or Palestine (during the Oslo days), or as far as Iran (during the early enthusiasm in Khatami’s first days). This even goes beyond the region. Since universal jurisdiction has developed on the European scene, compensation (in a quasi-Freudian sense) can also be sought under unusual horizons, testimony of which were student demonstrations in Egypt featuring at the height of the Sharon affair young people saluting “Belgium as the only true Arab Republic”.[15]

Vertically, the judiciary offers occasional successes to individual human rights: the passport case in Morocco, the blasphemy cases in Yemen and in Lebanon, the governor case in Egypt, the first Katzir ruling in Israel, all show a picture which is not all dark judicially.[16] Alas, these cases never become benchmarks, and so goes again the wheel of fire, with attorneys, judges and other lawyering professionals engulfed in the Middle Eastern world of irresponsible and unaccountable violence, and biding their time by pushing the Sisyphus rock of their troubled decency.

On a short timeline, calculated in months, the rule of law offers the scene of a ‘two steps forward/one step backward’ play, or, more often over the past two decades, a ‘one step forward/two steps backward’ scenario. Cycles being what they are, the critical mass might suddenly bring the rule of law firmly into being in a given jurisdiction. Alternatively, systematic degradation of the rule of law unleashes violence, which is the corresponding result of an ailing legal process, and the spiral downwards can reach cataclysmic proportions the harbingers of which one saw in Halabja on 16 March 1988, and in New York on September 11, 2001. We might have not seen the bottom yet: the Armageddon alternative pole to the rule of law can be seen slowly gathering in the build-up of a fearful arsenal of weapons of mass destruction across the Middle East.

Looking at the brighter side of the balance, what might constitute for the legal profession a critical mass for the rule of law, not yet reached anywhere in the region, that would allow it to come of age ? Beyond the overwhelming and patent result – failed cases and failed states –, how is it possible to deconstruct the deadends reached over the past two decades, so that one may be able to successfully oil those critical junctures where the machine of justice regularly breaks down ?

As a rule of thumb, the elusive answer can be narrowed down to a spectrum of percentages occurring on a scale where the rule of law functions reasonably well – eg. in the UK, Sweden or New Zealand ­─ , and where the people lawyering feel that cases operate on a  high ratio of legal and judicial independence and fairness, say 80 to 90 per cent law, with the rest subject to a number of uncontrolled factors, including luck, quality of legal representation, or the length the judge's leg – these factors are shared universally ­­-  but also influence-wielding and “politics” casting its ugly shadow on the case, which are, for failure of a better word, typically third-worldish. In the Middle East at large, the picture is topsy-turvy, with law stricto sensu offering twenty percent of the factors towards the litigious case being decided in fairness, the rest being a combination of will power, corruption, and executive intervention. When Arab lawyers tell you they finally believe their case will be responded to with more law than politics, then the threshold of the fifty percent that makes for confidence in the system might have been reached. We are far from that percentile, which is itself not particularly high: if the British or French lawyer felt that half of the cases dealt with in court were regulated mostly by politics, they would not fare proud of their “rule of law” or “Etat de droit” societies.

Another way of looking at law’s authority considers the judge less as metaphor than as a professional recruit, with a focus on the judiciary’s composition, education and background. The experience varies widely in the region: in most countries, the system follows a French model in which judgeship is a career embarked on early in life when joining a special magistrates’ school, between age 25 and 30, slowly ascending the ladder until retirement at age 65 or so. Together with this system, one will find a stronger reliance on the traditional ‘ulama in three jurisdictions, Saudi Arabia, Iran and Yemen, but the judiciary in all three countries is a mixture of the traditional and the “modern”. Additionally, the ministries of justice tend to bring judges to the bench from without the hierarchy, partly because of the lack of qualified personnel, more worryingly by way of stacking the courts. In both cases of the traditional and modern judges on the bench, the problem is that joining the profession is not prestigious enough, because it is universally perceived not to be independent from executive power. A critical criterion will be met by the Arab judge when the best lawyers in town start actively seeking judgeship, not so much for boredom in the law firm, or worse, lack of clients and income, but because they see themselves elevated to a fulfilling benchmark in their careers. Unlike Britain and the United States, where judicial positions appear as the crowning jewels in one’s lawyerly life, few successful attorneys in the Arab world are prepared to give up their legal practice for a position in the judiciary ­– save perhaps the very top one, heads of cassation courts and constitutional councils as end-of-career honorific titles.

A third telling general rule, until some more scientific indicators are developed, is the perception of the courts from outside, the litigant and his or her lay surroundings. Ultimately, law produces a good, however intangible, which is ‘justice’ from a macro-economic viewpoint, and ‘the fair and firm settlement of a dispute’ in a micro-economic perspective. In both cases, the “judicial product” is an alternative to violence in the public space for its consumers, both social groups and individuals.

The performance of that function, producing justice and hence peace, is at best defective across the region. Hardly a family that owns a real estate property in Cairo does not have a case pending in some court, often for several years, and few expect either a fair result, or worse, a rapid one. A recent World Bank survey shows a wide variation on the recovery of debt, from a week in Tunisia to two years in Lebanon.[17] One would want to look more closely at the first figure, but uncompensatable delay in payment is a pattern one can vouch for safely, ­-- it is known in derogatory terms as ‘the Saudi style’, that of an oil-producing government whose budget falls on hard times, because of market whim, mismanagement and bad habits, and which, protected by its political and legal immunity, delays payment with no possible recourse for the creditor. Justice delayed stems from widely practised forms of bargaining in the Gulf on the time taken for large contracts to be paid for.

Daily practice is specially hard for lawyers, who will find their fees set back by a similar process of bargaining with their clients upon completion of a case, but mostly because the obligation becomes so watered down that they have to admit to their clients from the outset that the recovery cannot be complete even if their plea falls squarely on the side of the law. Rule of law loses here a crucial part of its authority, and the whole system gets undermined in the process: delay means that summary courts are summary only in name, recourse to criminal procedure is used to frighten the recalcitrant defendant because civil cases allow so much delay that justice gets systematically denied in competent civil and administrative courts. This is worse in criminal proceedings, and a classic means to humiliate the debtor (sometimes even the creditor…) is to get him or her, recently a case of an older woman in Sidon, to bow to some forced deal by arresting her on a Thursday afternoon. In this way is secured a stay in prison over the long week-end, until the relevant prosecutor is challenged ─ not before Monday, as he becomes hardly accessible from Friday to Sunday ─ by the lawyer of the person arrested, who will then be released from prison because there are no conceivable criminal charges that can stand scrutiny in what should have been a purely civil case.

Mirrored in the metaphor of the ailing judge are the law school, legal education generally, and the bar: while some empirical work is needed to tally numbers, attending classes held in what was once the most prestigious law school in the Middle East ─ Cairo law school, previously King Fuad school, is simply depressing. One finds easily several hundred students in the classroom, huddled in the more decrepit a building since one can see that it was once beautiful, listening to a lecturer reading typed notes which he has given over more than two decades. The scene is Dickensian, indeed Mahfuzian, and it gets reproduced in the vast majority of law schools in the region. Law publications have become, with a few exceptions, unreadable. Cairo University’s Majallat al-Qanun wal-Iqtisad (Journal of law and economics), which was in the 1930s through the early 1950s as prestigious as the best law journals in Paris and London, does not deserve nowadays to get  the submission of a moderately decent article. To that extent, amongst the most distressing frustrations for legal scholarship is the unavailability across the Arab world of a respected journal produced at law universities;[18] while bar associations have become the hotbed of lawyers frustrated both by the collapse of the legal market under the weight of numbers and the humiliation of the rule of law by governments.

The rule of law is therefore skewed in daily practice as a matter of course, and all the branches of the profession are subject to various forms of degradation. The themes vary in intensity depending on the nature of the cases. The more demanding expectations operate on the higher level, which may be called for short ‘constitutional’. Here the typical cases concern freedom of expression, fairness of the electoral process, accountability for abuse of power, shielding the market from executive corruption (including confiscation of property and commissions on state contracts), all the way to the accountability of top officials for war crimes and crimes against humanity. The gamut is large, and several examples are displayed in the constitutional decisions in various Arab countries.[19] The conclusions reached by George Sfeir in his comprehensive survey of Arab legal systems summarize the problem at hand: “If one were to apply Mellwin’s criteria, that the essential quality of constitutionalism has been the legal limitation on government, the excessive authority of the Executive and the personality of power with which it is commonly identified represent, together with judicial review…, the two main problems of constitutionalism in the Arab states.”[20] Worse, rule by law is increasingly the name of the game, in other words the use of some deformation of “due process” to advance a clearly illegitimate goal of government. Examples go from the trivial – paper under the door in the Rashid hotel in Baghdad, signed by “the secret services (mukhabarat)”, asking the host to vacate the room within two hours because it is needed for some high-level delegation visiting Iraq –, to the closing down of a television station in Beirut on account of its having violated the rules on advertising in an electoral campaign fought six months earlier, concomitantly with a decision of the Constitutional Council appointing a candidate who received 2 per cent of the vote to the parliamentary seat under dispute.[21]

Society fights back: in the Sisyphus search for the rule of law and democracy, i.e. decency in the public place, the honest and courageous leader – legal scholar, attorney or judge ­- is recognised and saluted, and political processes show maturity, resilience and inventiveness amongst the public at large. In Iran, the imbalance in constitutional arrangements has come to a head in recent years. A popularly elected president and a supportive ‘reformist’ parliament are fighting back, with a sense of large though inchoate public support, the two elements which, by operation of constitutional law, have been blocking any serious democratic reform: the vetting of candidates to elected office by the Council of Guardians, and the submission of all laws to its wide scrutiny of the constitutional (including Islamic law) process.

*        *        *

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So the fight goes on for Middle Eastern law to come of age, but it is appropriate to wonder whether it hasn’t always been like this, and whether the infamous kadi-justiz is an image so true and pervasive through the ages that little can be done, so heavy remain millennia-old pressures on the legal system. An earlier study of a provincial court in the seventeenth century suggests a serious, if not obviously accomplished, operation of the rule of law through the full registers written down in the year of grace 1666.[22] I would like to supplement that research, ─ which hopefully joins the better writings carried out in usul al-fiqh and philosophy of law by modern writers such as Wael Hallaq, Muhammad Baqer al-Sadr, or ‘Abd al-Karim Soroush, in fiqh by Abraham Udovitch and Abd al-Razzaq al-Sanhuri, in Mufti literature by both collective endeavours and individual monographs in classical and modern times, and such other Mille Plateaux of the rule of law as described in the Introduction to Middle Eastern Law, ─[23] with a closer examination of a sample of qadi literature in a text by judge Ibn abi al-Dam, a Shafi‘i scholar who lived in Syria from 583 to 642/1244.

As usual, there is scant record on the judge himself, but his book on Adab al-Qadi holds some remarkable comments on the profession in Ibn Abi al-Dam’s manual entitled, as many in the same genre, Kitab adab al-qada’.[24] While the manual deserves a fuller presentation which takes account of the wealth of information it provides, let us dwell here briefly on some of the contributions it offers for an appreciation of the high standards expected from judges and legal process in the classical age.

The book is long and detailed, though eminently practical. Conceived to guide both judges and lawyers, it covers pretty much what a practitioner, on the bench or on the court floor, would need to know. This book, and others in the same vein,[25] offer a comprehensive image of the world of judges and litigants at the time of writing. The manual is eminently practical. Ibn Abi al-Dam explicitly states this fact: “What we have mentioned in this book is common in the court of the judges as between litigants…”[26]

A Shafi‘i from Hama, Syria, Ibn Abi al-Dam covers extensive ground in the manual. Although some of the issues are elusive and may be somewhat complicated for a modern reader, it is clear that the book is intended as an aid for jurists. It is divided into six long chapters, which the author presents in the introduction to the work, interspersed and followed by models[27] and case-studies[28] covering the appointment of judges, court set-up, trials and procedures, testimonies, relations between different judges, and typical contracts and formularies. The outline of the book, presented in the introduction, is repeated at the end of Book 5: “This then is the concluding word on the nature of judgeship, the rules and arts of judges, what they must do, what they may do, what is forbidden to them and what is abhorred, the rules of trial and evidence, the trial sessions and the conduct of litigation between the parties, testimonies and the like, judicial referrals from the sitting qadi to other judges.” In a large book of over 500 pages, the author remains modest: “These issues, on the whole, despite their importance, are but a drop in the sea, selected from the relevant books in the school of our eponym imam Shafi‘i. They are indispensable for whomever assumes judgeship among the people, and if a person is not competent in the details and principles of the law alike, knowledgeable about the school he follows, and well-versed in the opinions of his companions and their arguments, he should not take on this important, crucial and dangerous position.”[29]

The opening of the book, as expected in the genre, carries the argumentation on the nature of the profession generally. This is very different from the arid collocation of stories in the works of Waki‘ (d.330/941), the earliest writer extant on ‘the stories of judges’.[30] The Qur’anic and hadith apparatus is taken for granted, and reliance on the differences of various Sunni jurists dominant. In line with the tradition, our jurist is inconclusive on the allure of the profession. He starts with an example drawn from traditional verses and reports on how fearful and difficult an exercise, and how important at the same time, the task of the judge. After an extensive list of quotes, the debate ends inconclusively: “These reports, on the whole, [are divergent], some alluring, some deterring,.. [But] this is what the imams have said and done in the matter of judging. Some have taken up the post, and some have refused.”[31]

The section does provide a number of clues on the state of the judiciary at the time, notably the provision of a salary sufficient to cater to a judge's dignity, from the treasury.[32] One also learns the attention which the judge should give to his predecessors,[33] including in the choice of professional witnesses and other aides to the court.[34] The judge must be careful, we are told, to avoid that the court's clerk be bribed, as he wields access.[35] We also find a useful discussion on the relationship between the schools of law: “If a judge is a Shafi‘i, and his opinion leads him to the school of Abu Hanifa in some dispute, he is entitled to adopt it in his judgment.”[36] Perhaps the most telling information about the state of justice and the responsibility of the judge for the authority of law is the detailed procedure suggested in the manual on the way a judge just appointed reviews all cases of detainees held in jail.[37]

The following chapters cover other tangible ground, including the conduct of the trial by the judge, and the fairness towards the litigants generally (book 2). Then evidence and the trial sessions are discussed (book 3), followed by the deposition of witnesses and how to direct them during the trial (book 4), the relations between judgments issued by other qadis and their probatory value (book 5), and the art of court registers, standard formulae and letters (book 6).

 The author concludes the book with “the reason why we have dealt with all these issues”. While the well-versed judged might not need much of the book,” he modestly suggests, it will be most helpful to the “lawyer who stands near the judge’s courts, and rises up to plead.”[38]

With another clear passage introducing various “common practical issues”, the manual is “especially intended for the lawyers who have set themselves out to defend their clients.” This address is important. It shows that a specialisation has occurred over the years, and a ‘profession’ of legal counsels-representatives was alive and well at the time of Ibn Abi al-Dam. It also suggests that, at one point, lawyers did constitute “a profession” in classical Islam ─ though not a recognised “corporation” ─, while the judgments we have from the 11th/17th century Tripoli court show that most litigation was carried out by the parties themselves or by family representatives, rather than by paid professional lawyers. This was also clearly the case in other parts of the Ottoman empire, as substantiated by Ronald Jennings in the first part of the 17th century, but not in Syria-Egypt of Ibn Abi al-Dam’s 13^th century.[39]

While this conclusion calls for a reassessment of the ebb-and-flow in the advocacy profession through an immense stretch of Middle Eastern history, Ibn Abi al-Dam’s manual is also important for the wealth of material it offers to the practitioner both in terms of procedure and in terms of substance.

For substance, the ‘nineteen common issues’ which form the final chapter cover all types of legal fields, including sale, torts, mandate, marriage, waqf. One learns for instance about the validity of the sale when carried out by the father in the name of his son, the sale of an object entrusted with the depositor, the capacity of the parties, the sale of an object which is not immediately available…[40]

In terms of procedure, many questions which arise in court are discussed, including the way the register should be held,[41] the writing of the scribe and/or the judge,[42] the three-day notice to produce evidence,[43] the rules concerning absent parties,[44] testimony and evidence,[45] the letters/ recommendation from one judge to another judge,[46] the conduct of the trial,[47] the use of fatwas,[48] and even a sense of hierarchy amongst judges.[49] The most remarkable discovery one might underline in Ibn Abi al-Dam’s manual is a standard format for judgments, including variations and blanks, which almost exactly corresponds to the practice of the Tripoli court four centuries later: a perfect legal calque if any.[50]

It is actually possible to revise one’s view of the whole field of Islamic law from the perspective of the practitioner as appears in the qadi literature. Together with the natural intermingling of sources, which is a phenomenon not unique to the Islamic tradition, but might be more pronounced in it than elsewhere, the delightful evidence of social mora at the time, as seen from the dignity expected in judgeship, appears on the occasion of deontological discussions: we have in Ibn Abi al-Dam evidence of widespread lies in court,[51] taking of oaths by all kinds of people with various religious backgrounds, including those whom one would portray nowadays as agnostics or atheists,[52] and abuse by paper sellers of the propensity of court officials to write a lot unnecessarily.[53]

So what about qadi-justiz[54] in the light of justice in the courtroom as described by a qadi in an age where people were convinced, perhaps with some legitimacy, that the rule and authority of the law was far superior in their world than in any other conceivable contemporaneous society ? The answer requires some further investigation on the situation of judgeship in 13^th century China or India, it is nonetheless certain that Ibn Abi Dam did not give much thought to possible examples elsewhere on the planet of his time, outside the boundaries of a rather closely knit Muslim world in terms of legal scholarship and interaction, irrespective of the more elusive and fractious political scene. That, for sure, is not the world of present day qadis, whether they studied French law in Egypt, Morocco or Lebanon, Egyptian or US law in the Gulf, or indeed just their traditional fiqh texts. Their societies have all come under the severe scrutiny of Amnesty International and similarly respected organizations with an honest conception of the rule of law under universal standards, and they themselves know perfectly well what constitutional review and real judicial power means. Unlike Ibn Abi Dam, however, they are defensive about their own authority, and the harsh reality is that a subdued profession keeps hauling the Sisyphus rock of the rule of law, the governments keep pushing their resistance to consistent precedents by ignoring the rule of law, fighting it, or replacing it with rule by law. Meanwhile, lawyers and judges, like everyone else, have to keep pinning their hope on the emergence of a decent judicial space with some immunity from politics, such lack of judicial independence being the utmost self-defeating proposition for the rule of law if any.