II. Constants and Variables in Modern Egyptian Legal Structure

Studies of positive jurisprudence within the context of French legal culture follow an abstract methodology in their examination of the prevailing legal systems and their components in a given society at a given historical period.

As a result, legal and social structures are dissociated from one another. The first is dealt with as a purely legal edifice, or more precisely, an edifice devoid of its social class and historical content. This phenomenon gives a false impression about the neutrality of the legal edifice vis-à-vis social problems, and the relationship between political powers in the political society under consideration, although in actual fact legal problems cannot be tackled in any given society by drawing a demarcation line between the legal edifice on the one hand and the socio-economic structure on the other. This is because the legal edifice is one of the components of the superstructure of the society and is characterized by a specific peculiarity and effectiveness in its dialectical relationship with the infrastructure.

In fact this law, being determined through social relations which in the final analysis are relations of production, is not, however, a mechanical reflection of a negative nature. For it has the ability to enjoy relative independence which enables it to have an impact on such relations by organizing and consolidating some of them and by reorganizing others.

We therefore can by no means grasp the developments associated with the borrowing of French positive laws and Egypt's shift to French legal culture, together with the presence of certain Islamic as well as non-Islamic laws in its modern legal system, and the inevitable outcome of the regression of Islamic law application to socio-economic relations in Egypt; we cannot fully grasp the social and legal structures.

As a matter of fact, we cannot unravel the far-reaching changes which involved the socio-economic and cultural structures in Egypt in this historic period, nor can we reveal the dialectical relations or deep-rooted interaction that occurred in the process.

Taking this as a point of departure it would be possible to study the determining factors which brought about the transfer of an advanced western legal culture to a backward society, while examining the factors which determined national acceptance and assimilation of an alien culture.

1. DECISIVE FACTORS IN NATIONAL ACCEPTANCE OF AN ALIEN LEGAL CULTURE

Needless to say, this attempt to pinpoint the determining factors that led to the borrowing of western legal culture, whether in its structural form as modern and comprehensive codifications which organized a changing social reality, or as an expression of philosophical and legal concepts which as a whole constituted an integrated abstract edifice, does not stop at the details of every determining factor separately, but would aim at rising above the details but without overlooking them when determining their major components. This in the final analysis constituted the core of the process of national acceptance and assimilation of this modern civilization in the era under review.

In other words, we shall focus on the general in every single factor without overlooking the particular, so that we may ultimately determine the general traits of the Egyptian society's assimilation of this borrowed culture.

(1) Socio-political factors

It may be said that the changes which occurred in the economic edifice during Mohammed Ali's rule constitute the actual beginning of a new socio-economic and cultural reality which made it possible for the ruling class to borrow French positive laws and apply them to Egyptians in their various forms of relations.

Moreover the period of Mohammed Ali's rule, 1805–1849, which constitutes a stage in modern Egyptian history with all its achievements and failures, represents one of the most significant experiences in the fields of modernization and development. In fact the focal point of all the changes brought about by the Egyptian ruler in this connection was “to create a military power by consolidating his own personal position to the detriment of big landowners on the one hand, and the traditional powers which dominated social relationships in Egypt at the time as well as foreign interests” (Herrschlag, 1973: 108) on the other, while strengthening his own relationship with the Ottoman Empire.

As a matter of fact a major portion of the changes which came over the Egyptian structure took place to some degree within the framework of modernization of the Egyptian military institution. This was so because, in the words of Herrschlag, the methods adopted by Mohammed Ali in achieving his objectives in this field reflected the efforts of a central government in a backward agricultural country to achieve rapid industrialization with scarce capital and little competitive power when compared with the ever-growing economic development in Europe. Thus, in order to realize his aspiration of curbing the influence of foreigners, and in order to counterbalance British domination in an area which constituted the road to India, Mohammed Ali preferred to rely on French assistance particularly in organizing and training his army. This was so despite the fact that he had concluded successful deals with the British in 1811 and 1812.²

The change effected by Mohammed Ali by force of law in the agricultural sector, may be summed up in the following. He drew up a new agricultural policy within the framework of an economic policy which aimed at achieving his imperial aims in the then prevailing international balance of power, and within the context of his relationship with the Ottoman Empire.

In the course of his policy of creating state monopolies³ Mohammed Ali effected radical changes in the Egyptian agricultural structure particularly in the following fields:

1 System of real estate property in agricultural lands

2 irrigation and drainage system

3 marketing system of agricultural crops

4 system of agricultural production

5 extension services in agriculture

6 system of taxation in agriculture (Hassanein, 1974: 35).

As a matter of fact, the most radical of these changes in the agricultural structure, with all their social impact, is the change which occurred in the system of real estate property in agricultural lands.⁴ In this connection, changes did not occur all at once⁵ but gradually, with the abolition of the system of iltizam whereby a person was appointed as tax-collector in a certain district and the system of wakf whereby the ownership of agricultural lands was transferred to it.

As for Ismail's rule (1862–71), it was said to have been aimed at increasing production and wealth with a view to realizing the dream of an African empire. He therefore gave great attention to irrigation and the increase of the area of cultivated land in addition to the changes that he introduced in the property system (see ibid.; Herrschlag, 1973: 146).

Thus, the tendency to realize the dream of a model of western civilization, with its far-reaching effects on the nature of the Egyptian system and its various structures, paved the way for the ruling class to accept the west as a model to be followed. The most salient feature of such an acceptance was the attempt by both Ismail and Nubar Pasha to carry out a process of reform of the judiciary system within the framework of relations between nationals and foreigners through the creation of mixed courts, in addition to the borrowing of mixed laws, followed by a comprehensive legal reform of both the legal and judiciary systems of the country.

(2) Social factors

The various developments which involved the Egyptian economic system had a wide range of social and cultural repercussions. The social system was most affected by these changes, particularly by the changes which occurred during the reign of Mohammed Ali's successors, specially Ismail. It has thus been proved that changes occurred in the social and class structure with certain western patterns and models entering into the Egyptian society. These changes also included architectural patterns with their relevant mechanisms and social repercussions.

Furthermore, the emergence of new social classes influenced by western models had its repercussions on the borrowing of positive laws.

(3) Cultural factors

A thorough analysis of the changes which occurred in the national cultural structure in its legal context, indicates a starting point which coincides with the Napoleonic expedition which to most researchers constitutes the origin of relations with the west – what may be called the trend towards “Westernization” or western polarization.

This is a consensus on the basis of scientific evidence that the French expedition which put forward a liberal French model to the Egyptian intelligentsia, particularly the ulemas, interacted with certain hesitant and relatively rational elements within the framework of the religious institutions. It thus sowed the seeds of unrest within the ranks of the Sunnis. As a matter of fact, the beginning of the transfer of positive legal culture, with its Latin origin, had begun to infiltrate both in Ottoman laws and in the laws promulgated by Mohammed Ali, which carried within them a trend towards incrimination as a means of controlling social relations with the state and its various activities.

The process of transfer of modern codes represents in actual fact a shift in the history of Egyptian culture, as it constitutes a rift in certain aspects of national legal culture in its traditional Islamic Sunni context, and ushers in secular thought in Egypt. This process in its legal aspect confirms the link that exists between the legislative process and the state, and the break between the legal base and any other non-positive source of law. The researcher is of the view that the beginning of secular thought coincides with the borrowing of legal culture from the French model, together with the ideas which the period of European Enlightenment embodied.

Hence the effective historical beginning for the unravelling of the dialectical process in the cultural edifice coincides with the rule of Mohammed Ali. At the outset, there emerged a methodological difficulty in explaining the process of cultural change in its legal context, more so in that the pattern of transfer from an advanced and developing culture to a traditional one carried within it the seeds of instability and unrest

How can the process of borrowing or transfer be explained? In his small but persuasive article, Gustave E. von Grunebaum (1953) first reviewed the four theses which Arnold Toynbee presented in interpreting the phenomenon of cultural borrowing (Toynbee, 1953: esp.

However, von Grunebaum expressed a certain reservation in his critical approach to the theory of borrowing as adopted by Toynbee, to the effect that there is another more important consideration in the process of borrowing. According to him, when a certain civilization or culture seeks to borrow from another, it is when it is incapable with its own resources of grappling with a certain problem.

He considers that a difference exists between the process of borrowing which occurred during the first Abbassid era and the borrowing which took place in modern times. He thinks “foreign goods are the only means to hamper infiltration or political and economic domination and that Islam at the time was not in a defensive position but adopted these foreign models for its own good. It did so with a great deal of caution because the pressure under which it fell did not come from the outside, but was rather spurred by the period of development through which it was passing.” Von Grunebaum concludes his analysis of Toynbee's theory and its application to these two historic stages of the Islamic world by saying that the political circumstances which guide cultural borrowing in our modern age are those which make such a borrowing difficult from the psychological and social points of view and cause the disruption of the groups which receive this culture. (Grunebaum, 1953: 188)

Von Grunebaum goes on to say that the first borrowing of a substantial element from a foreign civilization will inevitably lead in time to the borrowing of all the other fundamental elements. Furthermore, technological transfer will of necessity cause changes in social and intellectual attitudes. These changes will in turn bring about other forms of scientific and philosophical borrowings and may ultimately involve religious elements.

As a matter of fact, this critical approach to the various elements which constitute Toynbee's theory of cultural borrowing is predominantly an external one from outside the borrowing culture – that is an approach which does not delve deeply into the determining factors of the process of cultural borrowing from an advanced society to a backward one. This is particularly so in the societies which enjoy historical continuity and in which past heritage weighs heavily on them and hampers their present movement, as in the case of the Egyptian society under consideration.

Toynbee's and Grunebaum's viewpoints coincide with certain prevalent trends in western sociology with respect to the explanation of the process of cultural change. However, such explanations can by no means cope with all the details of the Egyptian case, for a study of the structural changes in Egypt at the time of Mohammed Ali, insofar as the fundamental system and class composition are concerned, underscore the determining factors in the process of borrowing from western positive laws.

It has been proved that one of the two most important changes effected by Mohammed Ali in the social edifice was the liquidation of the upper strata of multazimin (tax collectors) appointed in fixed districts, either physically or socially, by abolishing the system of iltizam (a system of tax collection), as a result of which these people were stripped of their wealth (Barakat, 1970). In the words of Helen Revlin, “the class of former land-owners was annihilated or stripped of their land and this paved the way for the emergence of a new class of landowners” (cf. ibid.).

Another important change in this connection was the fact that the vanguard of the Egyptian bourgoisie, made up of merchants and craftsmen, which emerged at this time, played a social role in the struggle against the French expedition and culminated in Mohammed Ali's investment. This class received a deadly blow when the Egyptian ruler established state monopolies with all their adverse effects on trade opportunities and operations (ibid.).

These measures also met with strong resistance on the part of men of religion and the ulemas which represented the middle-class intelligentsia, with the result that the sheikhas (men of religion) and ulemas of El Azhar joined the multazimin in their opposition to the abolition of the iltizam system. These measures, which put an end to the social status of the ulemas, eventually weakened their political role.⁶

These crucial changes were carried out simultaneously with other measures such as the creation of state monopolies, and the establishment of an up-to-date military institution, with modern technology, discipline and an advanced adminstrative system, all of which were aimed at achieving his ambitions. It is at this juncture that ideas of modernization coincided with the process of updating the military institution. In other words, these socio-economic and political changes constituted the root causes of indirect cultural change which was made possible by the dwindling influence of religious groups and their institutions.

2. APPLICATION OF THE THEORY OF THE THREE LEVELS OF LAW TO THE EGYPTIAN LEGAL SYSTEM

To what extent has traditional national culture as exemplified in Islamic law, Shari'a, faced continuity and interruption – the Shari'a which shifted from a traditional legal edifice governing social relations and identified with them to a modern legal structure governing such relations in a changing society? How far did it merge with international economic relations, eventually becoming subservient to the international market and the relations established within its framework? How far have these national legal rules affected the internal arrangement of all the principles which make up the whole structure and its subsidiary systems?

This analysis constitutes an attempt by scientific and methodological approach based on confrontation between the legal rules drawn from the Shari'a and those derived from western positive sources; in other words, an investigation into the areas of crisis in the whole legal edifice. This signifies an attempt at determining where perturbations and other non-technical factors, whether political or social, occur, as these factors make up the crux of the problem of application of the Shari'a to the Egyptian political system.

Thus, an analytical review of the elements of this crisis at the structural level will open the door to a more thorough outlook, while ascertaining the validity of the opinion that it is necessary to replace the existing legal edifice as a whole and create an integrated body of law, the rules and provisions of which would derive from the traditional Shari'a which has proved suitable for application to the ever-changing and complex society.

Thus the modern Egyptian legal edifice is analysed from this angle in the light of the technical and descriptive study of its composition insofar as its component sources are concerned, particularly following modern legislation, i.e. following the Montreux Agreement and the abolition of foreign concessions with all their legal problems, effects and crises. This is so because the historic era which preceded modern codifications was largely marked, as stated earlier, by the gradual recession of Islamic laws in favour of a systematic growth of borrowed French positive laws. This analysis therefore centres on the civil legal system and personal status.

As for the other legal systems such as pleadings for the defence and criminal procedures, penal code, commercial law and all other laws governing employment, social insurance etc., these emerged totally divorced from the source of Islamic law. In fact, these laws are European positive laws which are in total contrast, from the historical point of view, to the Shari'a, which had enjoyed supremacy over the Egyptian society, at least from the theoretical point of view, since the Islamic conquest and until the onset of the movement of modernization towards the end of the last century.

Following are the national legal rules and principles in the Egyptian legal structure as represented in the personal status and civil law.

(1) Personal status in change and continuity

Personal status together with the family laws that involve it, constitutes a legal subdivision which regulates the propositions and fundamental legal principles derived from the national rules which had prevailed prior to borrowing from western positive law. In fact, the area of personal status had remained subject to positive religious legislations (certain non-Islamic rules derived from clerical power and customs).

But the social relations which came under the umbrella of the legal rules of the family and other personal status, were governed by rules and principles derived from the Shari'a and other non-Islamic codes (Jewish and Christian) which were applied by Islamic courts.

It was proven that the civil codification which was promulgated together with the judicial reform did not incorporate any pro-visions regulating the family. Thus Islamic courts applied to Moslem Egyptians the most preponderant opinions of the Hanafite doctrine (Shehata, 1961: 116).

However, complaint about commitment to the most preponderant opinion of the Hanafite doctrine in passing judgements in lawsuits, together with the development of social conditions, led to the promulgation of a number of legislations pertaining to the family system. These regulations derived their rules from various doctrines and from the views of religious scholars (ibid.: 116; Madkour, 1969: 111).

This occurred in the light of the changes which took place in the society. A committee of senior ulemas from the four schools of Islamic law was set up in 1915 headed by the Minister of Justice, and it set out in 1916 to promulgate a law governing marriage and divorce. In carrying out its activity the committee was not bound by the Hanafite school as being the official doctrine of the state, but went beyond it to other schools of Islamic jurisprudence and no further. However, this draft was never enforced because of the opposition of certain ulemas of the official legal institution, El Azhar.

Thus, the matter was confined to strict avoidance of certain rules and matters to which the rules of the Hanafite school failed to apply in favour of the people. In the light of the new outlook whereby certain rules and provisions of the Hanafite school were not applicable, a decree providing for law No. 25 for the year 1920 was promulgated governing certain issues of personal status and incorporating matters related to alimony of the divorcee and divorce proceedings and udah (period of retirement before remarriage) as well as missing persons. The provisions of this law were derived from the Shafi'ite and Malikite schools.

However, changes were not merely confined to only a branch of personal status. For in 1923 law No. 25 for the year 1920 was promulgated providing for a minimum age for marriage, 16 years for females and 18 for males, as a means of safeguarding social interests and avoiding the mishaps of early marriage.⁷

Shafik Shehata considers that this reform was not provided for by a positive legislation, but was promulgated in the form of an amendment to the statute regulating Islamic courts, an amendment which was passed in 1910, by virtue of which the case would not be heard if the age of the husband at the time of the signature of the contract was below 18 and that of the wife below 16 (cf. Note 7).

Certain religious scholars consider that the new rule incorporated in this legislative amendment did not have any backing in either of the four doctrines or any other well-known doctrine, and that the authors of this amendment had sought legal backing from a legal opinion by Ibn Sherma, one of the exponents of an obsolete doctrine, by Osman El Betti and Abu El Asam, with the result that this law was merged with the statute governing Islamic courts which was promulgated in 1931 (cf. references in Note 7).

This development in the outlook of the elite whereby they were no longer bound by the official doctrines of the State, the Hanafite school, together with the borrowing of certain Islamic rules to remedy shortcomings in certain Hanafite principles which had caused some kind of maladjustment in the changing Egyptian reality of that time, led to the borrowing of certain rules from other doctrines.

In keeping with this new methodology, the Council of Ministers approved on 9 December 1936 a proposal presented by the Minister of Justice for the establishment of a committee to be entrusted with drafting a new law governing personal status in all its ramifications: bridal money, alimony, divorce proceedings, inheritance for the divorcee, parenthood and age of custody, as well as laws governing cases of missing persons, wakfs and bequest.

However, it was decided that the committee would not be bound by any single orthodox rite to the exclusion of the others, but it would draw its decisions from opinions of Islamic scholars, whichever was more favourable to people's interests and to social development. Steps in this connection would start with those cases which gave rise to a great deal of complaint and criticism (Madkour, 1969: 113).

With these guidelines the committee proceeded with its work by considering the draft law on inheritance by reason of its limited scope of change. This was due to the fact that most of its rules were characterized by rigidity, since its basic source was the Koran, the fundamental source of the principles of Islamic law. In consequence of this fact, law No. 77 for the year 1943 was promulgated, incorporating all rules governing inheritance, and those derived from definitive legal rulings such as those dealing with the owners of lawful shares and paternal relations.⁸

Some consider that the most important rules introduced by this new law, and which came in contrast to previous practices, was the right of inheritance granted to brothers and sisters despite the existence of the grandfather, while earlier his existence would have excluded them. At the same time, what remained after the distribution of lawful shares was to revert back to the living partner in case the deceased did not have any inheritor. Furthermore, by virtue of the law, a person responsible for homicide was banned from the inheritance, whereas accidental homicide was no reason for such a ban (Madkour, 1969).

Another law, No. 48 for the year 1946, was promulgated introducing amendments to the wakf system. This new law derived its rules from the various religious doctrines with the provisions regulating the wakf becoming closer to those governing inheritance. Law No. 71 governing bequests was likewise promulgated in 1946.⁹

These partial innovations in the traditional jurisprudence came within the framework of ijtihad. But following the promulgation of the law providing for the unification of the judiciary (law No. 462 for the year 1955), the need was felt to draft comprehensive law for personal status incorporating matters related to marriage, divorce and separation, and relevant issues, in addition to the rights of children, next-of-kin, inheritance, bequest and wakfs.

But the Ministry of Justice ignored this draft, by reason of the controversy and opposition to which each of the new drafts gave rise. In fact, any attempt at partial innovation, even within the framework of traditional Islamic principles as exemplified in the legal opinions of the four religious doctrines, met with opposition, and accusation of departing from the Shari'a was levelled by the ulemas. This attitude constitutes a contradiction, at least in appearance, in view of the history of the traditional official religious institution and its relationship with the political system and the ruling class.

This contradiction may find its explanation in the fact that the Shari'a in its codified aspect, i.e. in the field of personal status, was the only area where the ulemas’ dwindling role would mean a diminution of their social role and their religious influence on the ruling class and the political system. For any attempt at innovation outside their purview would constitute a deviation which could not be tolerated. In fact large-scale religious mobilization with political overtones was conducted by the religious institution whenever there was any attempt at introducing amendments, even if partial, from the outside.

There was, furthermore, another attempt at drawing up a comprehensive code for personal status at the beginning of 1967. It was put for consideration by the Parliament and the one single political party (the Socialist Union)¹⁰ as well as by the press. But the defeat of June 1967 and the collapse of the entire social system caused this law to fall into oblivion. However, the issue was raised once again during the 70s and constituted one of the factors of conflict in the Egyptian political scene, becoming the focus of sharp division between the various political tendencies.¹¹ In fact there was constant complaint about the application of certain aspects of the law on personal status.

However, the political regime which was used as a tool to strike at secular and radical trends within the political movement tried, in an apparently contradictory move, to introduce partial amendments in the structure of personal status, particularly in the laws relating to the family such as divorce and alimony. What may explain this apparent contradiction was the relationship existing between the regime and issues of Islamic law principally. It was a pragmatic relationship, i.e. by virtue of its balanced outlook and ideology, the regime made use of this issue to strike a balance between the two major currents of the Egyptian political society, the secular and radical trend on the one hand and the right-wing religious trend on the other.

This explanation may help elucidate the contradiction at the level of legislative practice through the use of the legal system known as Presidential decrees. An example of the excessive use of such a system was when a Presidential decree, passed in 1979 and providing for law No. 44 which amended certain provisions of the law on personal status, gave rise to heated discussions in the Parliament and the press as well as among the ulemas themselves, as to the degree of conformity between its provisions and the principles of Islamic law. This issue will be the object of socio-political analysis from the point of view of the attitude of the fundamentalist group and the ruling class.

This law contained a number of amendments with respect to personal status. It would, however, be difficult to pinpoint the exact place of change, as it was brought about by the new legislative principles which covered the entire structure of personal status. But how far these principles could cope with the new changes in the society in terms of practical application, in the light of the change of attitude towards women and the development that occurred in the family as a social institution, would be difficult to assess unless we examine the bases on which this legislative modification was founded. Examination would also have to involve issues related to personal reasoning and innovation in Islamic thought. This may be understood from the explanatory note issued by the drafters of the law – a note which comprises the set of ideas underlying these changes.

The authors of this draft postulate that the first consideration on which the new amendments were based was the following: “Islamic law towers over all other laws because it emanates from God”. And if the rules and principles underlying these changes have been relinquished in matters where they should have remained fixed, in other matters general rules have been drawn up involving provisions which would suit the changing times and the new happenings. Islamic authorities were furthermore entrusted with the task of drafting laws in accordance with the principles of the Shari'a as a means of improving the lot of Moslems and raising their standard of living.

The authors of this draft considered that “the doctrines of Islamic law had enriched Islamic jurisprudence by drawing from the Holy Koran and the Sunna and that the divergence of view between religious scholars did not involve radical or clearly defined decisions, but were matters in which personal reasoning played a major role.”

Proceeding from this traditional understanding, which constituted a perpetuation of the Islamic Sunni heritage as represented in El Azhar, this amendment aimed at coping with the changes which had occurred in the society since the promulgation of law No. 78 for the year 1931, law No. 25 for 1920 and law No. 25 for 1929, which had been in application for over 50 years – changes both material and moral – which had their repercussions on special relations. But as application revealed shortcomings in certain provisions of the existing laws, the need was therefore felt to look into the Shari'a for provisions to govern the new society, without impeaching any established right for any of the members of the family.

The basic purpose behind such changes was to regulate the enjoyment of some of these rights.¹² In other words, the legislative amendment which was based on the idea of partial change, aimed not at departing from the traditional norms, but only at regulating the use of certain rights without going to the length of formulating a new law for a new pattern of life. These changes were meant more precisely to regulate relations within the marriage institution and family system in keeping with the changes which had occurred in modern Egyptian society. Another purpose behind such partial amendment may also have been the fear of direct confrontation with the ulemas.

The most important amendments which occurred in the obsolete laws on personal status and the attitudes of the various forces vis-à-vis these changes may be summed up in the following:

(2) Personal status for Moslems

i. Divorce The authors of the draft considered that an investigation into cases of divorce indicated that certain husbands divorced their wives in their absence and hid the news from them, thus causing them a great deal of harm in addition to leaving them in unsettled conditions. In some cases husbands registered the divorce in the registry office and kept the divorce document in their own possession, acting as if the marriage were running its normal course. At the first sign of conflict they produced the divorce document in an attempt to rob the wife of her rights. The authors of the draft considered that there was nothing new in this law, since the scholars of the Hanafite doctrine had earlier faced cases in which the divorce was hidden from the wife by postponing the udah until the time when the husband admitted that the divorce had taken place.¹³

Proceeding from this analysis of the problem the authors of the draft considered that the solution lay mainly in regulating the way by which the wife would know of her divorce, so that no conflict would arise between the partners if the husband hid the news of the divorce. Thus Article 5 bis stipulated that when the husband wished to bring about the divorce, he should go to the registry office for official registration. This article, Paragraph 2, regulated the implication of the divorce on the wife from the date of notification.¹⁴

ii. Divorce of other than the first wife¹⁵ This is a principle already established as part of the provisions of law No. 25 for the year 1929, and the new amendments considered that having more than one wife was a social problem, and that it constituted a harm which entitled the wife to ask for a divorce. The legislator deemed fit to consider a second marriage as constituting a harm to the first wife, thereby giving her the right to divorce in case the second marriage was unacceptable to her, or if the husband concealed that he was already married at the time of the second marriage.¹⁶

According to the legislators, this amendment formed an integral part of the Shari'a and did not constitute a departure from its principle. At the same time, polygamy would be allowed only with the wife's acceptance. This amendment gave rise to conflict of opinion between the ulemas as some considered it a departure from the principles and rules of Islamic law, constituting a restriction of the husband's right to divorce his wife, as this right was the privilege of the husband alone. According to them the restriction constituted an impingement on this right.

iii. Right of ta'a Article 6 bis, Paragraph 2 regulated the husband's right of ta'a (asking the wife to come to the husband's house in case of unlawful desertion) to ensure his wife's return to his home, when it stipulated that the wife's failure to obey her husband unjustifiably implies an end to the payment of the alimony from the date of refusal. She would be considered disobedient if she failed to return to the husband's home after having been asked to do so through a letter delivered by a court usher. In this case, the husband was to specify the address of the house.¹⁷

The legislator allowed the wife the right to object by filling a form wherein she would indicate the legitimate grounds for her objection. A penalty was imposed in case the grounds for objection were not clearly indicated, namely, the court may rule that it rejects the objection.

Moreover, the alimony is stopped from the day the husband notifies his wife to return, and if objection is not made at the prescribed time, the alimony is halted at the fixed deadline. But when the wife's objection has sufficient legal backing, the court should interfere of its own accord, or in response to a request by one of the partners, to put an end to the conflict and reconcile them. This article has also provided for a number of legal and technical points,¹⁸ which have been either derived from the Malikite doctrine textually or inferred from its provisions.

iv Muta (compensation to the divorcee) When the marriage is contracted for the purpose of sexual pleasure, Article 18 bis has established a new provision whereby the wife whose marriage has been consummated would, in case of divorce without her approval or for no fault of hers, be entitled over and above the compensation due to her udah to a two-year alimony at least, depending on the financial status of the husband, the circumstances of the divorcee and the length of the marriage. The court may allow the husband to pay this alimony in instalments. This amendment remedies a shortcoming in the law whereby such a compensation was not due to the wife so long as she had received the mahr (bridal money) in full and since she was entitled to the udah compensation. As for this compensation, muta, it was recommended but not compulsory. But the initiators of this law, considering that generosity and manliness had dwindled in modern times, ruled that the divorcee was in need of assistance beyond the udah, which would help her face up to the consequences of divorce.

At the same time, this new compensation would curb hasty divorces. This provision was derived from the new doctrine of Imam El Chafei.¹⁹

v. Child alimony Article 8 bis, Paragraph 2 has introduced a new provision for a child whereby if it has no income of its own it would be supported by the father. This would go on until a girl's marriage or until she is able to support herself, and until a boy reaches fifteen years of age or is able to provide for himself adequately. But in case of physical or mental disability or for reasons of education or in case of inability to support himself, a boy would be continuously supported by the father.

Thus the father would be committed to support his children and provide adequate housing for them so as to ensure for them a living comparable to that of people of the same social standing.

The legislator considers that it is only proper and fair that education requirements should make alimony compulsory, in case education is provided by the state and does not conflict with religion, and provided the student is progressing in his education. The girl's alimony is made compulsory until marriage or until she is able to support herself adequately, because her sex in itself constitutes some kind of handicap.

vi. Castigation of the husband if he fails in the duties demanded by the law This new ruling was derived from the scholars of the Hanafite doctrine who consider that castigation is a penalty which should be left to the discretion of the judge, and varying according to the crimes. Imprisonment may be the only penalty, or it may be associated with another such as a fine. This penalty was approved by Imam Abu Youssef and certain scholars of the Shaf'ite doctrine and in some points from the doctrine of Imam Ahmed Ibn Hanbal. Proceeding from this legal analysis, Article 23 bis incriminates the husband if he fails in his legal duties as provided for in Article 5 bis of the law and its explanatory note, as well as the duties devolved on him by virtue of the same Article and those prescribed in Article 6 bis of the law. The notary public is also to be penalized if he fails in his obligations under Article 23 bis, Paragraph 2 of the Penal Code.²⁰

vii. Wife's alimony Article 2²¹ of the amendment provides that Article 1 of law No. 25 for the year 1920 governing alimony and certain matters related to personal status be replaced by new provisions, the most important of which being Paragraph 2 which stipulates that the wife's illness does not preclude her from being entitled to an alimony, which includes food, clothing, housing, medical expenses and any other expenses required by customs.

The legislators have derived this provision from the Zaidieh doctrine, which falls in line with the doctrine of Imam Malik, whereby medical expenses form part of the wife's alimony. However the Egyptian legislator has in this context deviated from the provisions of the Hanifite doctrine. In Paragraph 4, the legislator has indicated cases in which the alimony is forfeited such as the wife's apostasy, unjustified refusal to surrender to the husband, etc., as well as cases in which the wife's departure from home is without her husband's consent. Paragraph 6 stipulates that the wife's alimony constitutes a debt to be borne by him from the day he refrains from supporting his wife. Such an alimony is dropped through payment, a provision derived from the Shaféite doctrine and which had been in application in the existing law.

viii. Frozen alimony The legislator has provided that no legal proceedings would be conducted in cases of alimony covering a period of over one year ending on the day legal action is brought against the husband. In this it differs from the provisions of Article 99 of the Presidential Decree providing for law No. 78 for the year 1931 governing Islamic courts, which fixed this period at three years ending on the day legal action is taken against the husband; the legislator deemed that this period was too long.

Furthermore, Article 16 has established rules for estimating the wife's alimony.

ix. Custody Article 20 of this law introduces new provisions governing custody and its time-limit, in the light of the analysis of conflicts arising in judicial application. The legislator has fixed a mother's custody of a boy to the age of ten and a girl to the age of twelve.

However it was left to the discretion of the judge to decide to keep a boy in his mother's custody until fifteen and the girl until she marries, as derived from the Malikite doctrine. He then devised certain well-balanced rules to govern relationship in this connection, such as not granting custody to the father. He further regulated the parents’ right to see the child, and provided for negotiated solutions in case it is difficult to organize visits, etc.

But in view of the housing crisis which prevails in Egypt, the law has introduced provisions governing the custodian's home which are derived from the Hanafite doctrine. Independent accommodation for a divorcee and her child should be provided in the home rented by her former husband unless he makes other adequate accommodation available.

This presentation indicates the reformatory trend which guided the legislator, and reflects the response to the religious opposition which had earlier stood against a draft law proposed by the Minister of Social Affairs.²²

However, certain religious groups rejected the Presidential Decree system which provided for the law governing the opposition, the most prominent among these being the ulemas of El Azhar, the Moslem Brotherhood and other Islamic groups.

As a matter of fact, the recourse by the legal system to show its ability to initiate certain reforms ran counter to the views of Islamic groups whose political role gained momentum towards the end of the 70s, under the impact of the wave of Islamic fundamentalism.

(3) Personal status for non-Moslems

The foregoing analysis of the law on personal status for Moslems and its component parts, together with a review of its historical development, is evidence of the fact that it constitutes one of the areas of traditional and national legal culture, and that the law on personal status for non-Moslems remains subject to the control of the Coptic Church, a role which was further consolidated under foreign concession.

In actual fact, non-Moslem laws remained confined to the limits of family laws, particularly under the Islamic concept of the legal status for non-Moslems in the Abode of Islam. However, such an attitude was not restricted to the Christian religion with its various denominations but extended to the Jews with their two sects, the Rabanites and the Karaites. A historical analysis of the evolution of this branch of the legal system indicates that non-Moslems had not for a very long time been governed by official legislations.

As far as Coptic canon law is concerned,²³ it had roots in a body of canon rules promulgated by Kyrollos (Patriarch of Alexandria) in the thirteenth century, and another passed by the scholar Abu El Fada'el Ben El Asaal. There was still another body of law governing personal status which was elucidated by Archbishop Philothaos Awad in 1896 (cf. references in Note 24). In fact, these sources remained for many years the legal reference for millah courts and had the force of law on the ground that they constituted decisions taken by a local institution (cf. ibid.).

Eventually a committee stemming from the millah courts for Coptic Orthodox laid down another body of law on 9 May 1938, in which all laws governing personal status were rewritten in a modern version and ratified by the general millah court. Another body of law on personal status for Copts was also ratified by the general Assembly of the millah courts and put for consideration to the synod in 1955. The purpose behind its promulgation was that it should serve as a legal base for civil courts in cases of litigation between Coptic Orthodox (Sharkawy, 1966: 68). The Patriarch of the Coptic Orthodox Church furthermore passed a Papal decree No. 7 on 18 November 1971 allowing for divorce in one case only – that of adultery – whereas the Papal decree No. 8 which was passed on 18 December 1971 barred divorced women from remarrying.²⁴

As far as the Greek Orthodox denomination is concerned, a body of law made up of 30 articles regulating the institution of marriage, its impediments, reasons for divorce and its implications was passed on 15 March 1927, and eventually amended in February 1950 (Assiouty, 1974: 193).

As for the Armenian Orthodox a number of legal provisions were laid down by Mokhtar Gosh during the twelfth century, and eventually in 1940 a code was promulgated governing personal status, with jurisdiction devolving upon the millah courts, prior to their abolition. A book entitled El Huda (The Right Path) was published in the thirteenth century by Abu El Farah, better known as Ibn El ’Ebri, and another by El Ghazali, where the influence of Islamic jurisprudence is widely felt. These books regulated the life of the members of the Syrian Church. Another legislation governing personal status was passed in Jerusalem in 1929, and its provisions, from the point of view of Islamic jurisprudence, do not differ much from those of the Coptic canon law (Yehia, 1970/71:9).

With respect to the Eastern Catholics, their sources of law are the same as those governing Coptic Orthodox.²⁵ And the Catholic canon law was codified in an integrated manner in 1917. But this was not the case with the Eastern denominations, whose canon laws were not codified in the same way as western canon laws. Thus, the laws governing marriage in the Eastern Catholic denomination were passed incorporating provisions applicable to the Eastern Church, and were eventually ratified by a decree from the Pope of Rome in 1949 (Sharkawy, 1966).

As for the Protestants living in Egypt they were considered by the Egyptian legislator as belonging to one and the same denomination as the National Anglicans. In fact, a law governing their personal status was passed in March 1906, and remained in force until the abolition of the millah courts in 1955 (cf. Yehia, 1970/71: 52 and references).

As for the Jews, they were divided into two sects, the Rabanites and the Karaites. This split may be due to a divergence which emerged after the time when the Talmud was considered in Jewish canon law as being as binding as the Old Testament. This split became all the more pronounced when Anan Ibn Daoud became the leader of the Karaites, who are few in number but who do not believe in the Talmud as constituting a source of law (Sharkawy, 1966: 79 onwards). They therefore rely on the Old Testament rather than on the Talmud as a source of legislation, while introducing qiyas in cases where no provisions are established, in addition to the ijmah and established norms or customs (ibid.: 80).

This historical survey of the sets of legal rules which make up the system of personal status for non-Moslems in Egypt indicates the rift that existed between the various religious groups in the country. This situation constituted an abnormality and inequality in the legal edifice, the like of which is not to be found in any modern society. However, this situation can not be oversimplified because it is due to the very nature of Egypt's historical development and the religious composition of its society, together with the role of religion and the political system in this context. Furthermore, the issue has far deeper causes by reason of the fact that it is linked to the legal national edifice in general and the focal problems which constitute its historic crisis in particular. This lack of equilibrium or rift in the legal edifice motivated Egyptian legal experts to call for a remedy to this shortcoming and for the need to substitute this plural system by another which would apply to all Egyptians regardless of creed.²⁶

In this connection, a partial change took place as part of the process of evolution, represented in a plurality of judicial systems in Egypt, this being for political, economic and socio-religious reasons. Under these circumstances Egyptian Moslems were governed by the rules of the Shari'a courts, whereas Egyptian non-Moslems (Christians and Jews) were to fall under the jurisdiction of the millah courts. This situation runs counter to the concept of State supremacy and the principles of public law whereby, according to the explanatory note of law No. 462 for the year 1955, the State was to have absolute sovereignty, in addition to the fact that the population, regardless of their nationality, were to be subject to national laws and courts and one legal jurisdiction irrespective of the types of litigation involved or the law that applied to them.²⁷

In the meantime, the plurality of systems and jurisdiction continued until the promulgation of law No. 462 for 1955, by virtue of which conflict of jurisdiction was eliminated through the abolition of the Shari'a and millah courts.

As a result, cases which had earlier been referred to the latter were referred to national courts, in accordance with the provisions of the law on pleadings. However, unification of the judiciary in matters of personal status for Egyptians did not bring about a structural change in the substantive rules which governed such relations, as they remained in force. Thus Article 6 of the previous law stipulates that rulings in cases of litigation related to personal status and wakfs, which had originally fallen within the competence of Shari'a courts, were to be passed in accordance with Article 280 of the statute regulating such courts. In other words, Egyptian Moslems were to be subject to the provisions enshrined in the statutes regulating Shari'a courts and to the most preponderant opinions in the Hanafite doctrine.

As for non-Moslem nationals, Article 6, Paragraph 2 stipulates that “concerning litigation related to personal status for non-Moslem Egyptians who had well-established judicial systems at the time this law was promulgated” relevant rulings were to be passed within the framework of the general system in accordance with their canon law.²⁸

The previously depicted Egyptian model represents a unique example from the historical and social points of view, inasmuch as it reflects the existence of multiple and conflicting systems in the traditional legal edifice which governs personal status in the less advanced countries.

This phenomenon we will attempt to highlight in our next research when examining the relationships between the traditional legal principles and western substantive laws. However, this vital area of personal status remained subject to national legal rules (Shari'a and non-Moslem canon law) despite the socio-economic changes which motivated the borrowing of the western laws. This new structural change in the Egyptian legal edifice was required to complete the process of involvement of the Egyptian economy in the international capitalist economic market as an affiliate unit. However, the field of personal status, which was viewed as being of lesser importance, reflected the crisis prevailing in the legal edifice and in the Egyptian culture and dissent that existed in the intelligentsia and divided them into a secular and religious groups.

In other words, the perpetuation of this area of personal status in this way was a genuine expression of this split and conflict, while religious groups continued to exercise their domination.

(4) Civil law

Public civil law, together with other public laws, came as an expression of a new socioeconomic and political reality on the Egyptian scene, and of the attitude of the ruling class vis-à-vis the national heritage and the western legal model.²⁹ Thus, public civil law together with the theory of obligations was an almost exact replica of the Napoleonic Civil Code passed in 1802, was based on the same principles, and consequently was divorced from the general trend of rules of business relations as provided for in the Shari'a, which had prevailed prior to the reform of the judiciary.³⁰

Some consider that certain provisions of the Egyptian civil code have been influenced by the Shari'a (see Note 30). The clearest evidence of this fact, in our view, is the prohibition by virtue of the mixed civil code to sell future crops (Article 33) in view of the peril it involves. This code determines the loss which falls on the seller as one-fifth, a proportion fixed by fundamentalist legal experts (Article 336/419). Apart from this influence of the Shari'a, both the former and latter codes stated that the buyer should have seen the produce as a precondition for a sound transaction. The Egyptian code furthermore considered that any transaction agreed upon would, in case of fatal disease of the buyer, constitute some kind of testament in accordance with the provisions of the Shari'a. However, the Egyptian code differs from the French in that damage caused to the produce prior to delivery should be borne by the buyer in accordance with the provisions of the Shari'a.

Among the principles influenced by Islamic law was the provision for insurance against hidden or undetected blemish or defect in the produce. This influence extended to the so-called non-defined contracts called “shared burdens” in Islamic jurisprudence. In this connection, Shehata says: “The obligation arising from the lease contract was construed by the Egyptian legislator as being a negative obligation which does not compel the buyer to assume responsibility for repairing the leased unit.”³¹

Under the chapter on bail, the legislator has instituted what is called caution money, which is one of the forms of contract under Islamic law. A special provision is found in the public civil code concerning farouka, a type of contract known in Egyptian customs since the dawn of history (Article 553).

Although it has been established, following socioeconomic and cultural analysis, that the movement of codification called movement of reform constituted a shift in Egyptian legal history and gave expressions to substantive laws in the sociopolitical system; this net result also applied to the second wave of codification which followed the abolition of foreign concessions. According to the historian Sarwat Anis El Assiouti, the movement of codification which accompanied the elimination of mixed courts in 1949 was the first sign of the advent of national capitalism as a substitute for foreign capitalism.

Consequently the new civil code came as a true reflection of the needs of the semi-feudal, semi-capitalist ruling class, while preserving the general traits of western capitalism with a few slight amendments, apart from the fact that it genuinely reflected individualistic approach and its fundamental principles.³²

At the same time the legal and political discussions which took place in the Parliament (with both Houses) constituted a historic document which truly reflected the status of the ruling class and its social composition, as well as its attitude vis-à-vis the law as a tool of class domination. In fact, heated discussions arose in the House of Representatives at the time between the majority as represented in semi-feudal forces adhering to the right of pre-emption and a minority whose aim was to reject this principle (a principle derived from Islamic jurisprudence) and hence to limit big landholdings which were provided for by the law.³³

The best evidence put forward by El Assiouti in this connection is confiscation as one of the means of acquiring property (Article 874, Paragraph 3), and legal speculations whereby state lands are seized under the pretext of reclamation. These lands were eventually mortgaged at the Real Estate Credit Bank with view to forming large landholdings. The new civil code therefore resorted to nationalization as a means of banning foreigners from competing with the Egyptian ruling class.

The most eloquent example that may be cited concerning the position of the dominant social class vis-à-vis the civil code as an important tool for domination was the provision enshrined in the law whereby the right of property had a social function. But this provision was rejected by the feudal class in the Senate on the ground that it was a reflection of a philosophical creed, and because it conflicted with legal interpretations, (see Note 33)

This elementary socio-political and economic analysis of the new civil code is a true reflection of the attitude of the ruling class and its concept of the role of rule of law in the society, as well as the nature of the legal base and the civilizational model from which the civil code drew its theories, provisions and principles, all of which will constitute the object of a survey in the next chapter. We should however highlight the shift in the attitude of the new civil code vis-à-vis Islamic law and its historic and legal heritage. In fact the Shari'a was one of the sources from which the rules of the new code were derived, although only partly, for it was used as a last resort after legislation and customs (Article 2). Thus this “referral to Islamic law was meant to remedy the shortcomings and loopholes of the legal system. However, such a referral did not mean a total adherence to the detailed provisions of any particular doctrine, but was to be resorted to provided it did not conflict with the fundamental principles of the Egyptian legal system” (Assiouti, 1974: 193).

As a matter of fact this outlook towards the provisions and principles of the Shari'a in business relations which are derived from the principles and heritage of Islamic jurisprudence, reflects the viewpoint of the legislators, El Sanhouri and Lambert, on the possibility of drawing from the Shari'a and of reformulating some of the many aspects of jurisprudence. Thus, El Sanhouri, an authority in Egyptian jurisprudence considered, even prior to the drafting of the new code, that the Shari'a should “receive a greater share of attention on the part of the Egyptian legislator when revising the code. For the Shari'a was the source of law of the country prior to the adoption of current laws, and still is in a major part of the civil code, namely the area of personal status, as well as certain fields of business relations. Thus having recourse as much as possible to Islamic law as a source of legislation is in conformity with the Egyptian legal traditions, and is in keeping with the view whereby the law cannot be created all at once but grows and develops gradually with its past continuing into its present” (Sanhouri, 1938: 119).

This outlook was nevertheless linked, in the opinion of the great jurist, “to the need for the revival of a powerful scientific movement which would recover its seriousness and shake off the dust of intellectual stagnation which had prevailed in the East for long years, in addition to breaking the shackles of imitation to which the backward had been bound” (ibid.: 120–121).

However, despite this fact and under these circumstances, thinking stopped at the revision of the civil code which was considered a rich source from which the Egyptian law-giver could borrow many of the legal principles of the new draft (ibid.). This was all the more true, in that the Egyptian law-giver had drawn certain provisions from the Shari'a, such as those governing the wakf and pre-emption.

The great jurist, in the meantime, drew up a plan which reflected his concept concerning the possibility of borrowing from the Islamic heritage when redrafting laws governing business relations. His concept boils down to the opinion that borrowing, to use his own words, “is beneficial in updating the principles of Egyptian law, and in redressing its shortcomings”. For updating the principles of legislation should be done through the general theories which fall in line with the various aspects of the law. Thus, there exist certain theories in Islamic law which are in harmony with the most up-to-date concepts underlying modern legislations, as well as with legal traditions, and hence should be adopted as a basis. The Shari'a will therefore serve as a criterion when adopting stands towards the not-so-well-established theories, but in case these theories had some origin in the Shari'a, then they were likely to be endorsed (ibid.: 127–128).

As a matter of fact the Egyptian law-giver drew certain provisions from the Shari'a, the most important being, in so far as the general spirit is concerned, those in which the materialistic or substantive trend was predominant; this is a trend which falls in line with the provisions of the legal heritage. Furthermore, the most significant theory adopted by the legislator was the one related to the abuse of rights, which in the Shari'a had a broader scope than in European substantive legislations. In the meantime, the lawgiver kept “most of the provisions which public law had drawn from Islamic legislations, while adding to them certain deep-seated Islamic principles such as the idea of the contract council (Article 94) side by side with the theory of contract. Another theory which was included was the i'zar under the chapter on lease (Article 608), in addition to considering release from commitment as a unilateral legal procedure which would not require approval of the contractor. This constituted one of the concepts incorporated in Islamic jurisprudence (Shehata, 1961: 144–145).

The new code, moreover, introduced the principle of unforeseen accidents which had been adopted by the French administrative justice, rather than the civil, and which the Egyptian legislator eventually adopted on the strength of the theory of necessity in Islamic law. In addition to these general theories, the lawgiver drew from the Shari'a numerous detailed provisions, such as those governing the wakf lease and monopolies, the lease of agricultural land, the destruction of crops in the leased area, the termination of the lease contract with the death of the lessee or through a breach of faith, and unilateral remission of debt, in addition to many other matters which the code borrowed from the Shari'a – the planting of trees in the leased area as well as provisions pertaining to common walls and the period of time limitation, eligibility grants, and pre-emption. This was apart from the principle, whereby there could be no inheritance except after the payment of debts, all of which were issues taken from the Shari'a.

As a matter of fact the process of borrowing from the Islamic legal tradition which constituted an attempt on the part of the intelligentsia to introduce certain traditional legal components into the civil code, reflected an attitude based on compromise on the part of the legislators and the ruling class on the one hand and of the other trends on the other. In fact, according to Borham Atallah there were three major trends which attempted to influence the provision of the civil code vis-à-vis the Shari'a. The first was the secular trend which considered that no reference should be made to Islamic law, in view of the fact that the evolution of modern life no longer recognized that the Shari'a should be of any assistance to the judge in the settlement of litigations. The second view expressed an Islamic trend (the Moslem Brotherhood, the ulemas and certain judges) which deemed it necessary to lay down a civil code which would derive all its provisions from Islamic law. In this connection, they formulated a draft law on obligations, the provisions of which were drawn from the Shari'a. The third and intermediate view was that advocated by El Sanhouri, one of the drafters of the law, and one which finally prevailed. According to this view, Islamic law was to constitute a reserve source of law, next to legislations and customs, keeping in mind that the objective trend of the civil code should fall in line with the spirit of the general provisions of the Shari'a in addition to keeping abreast with modern times (Atallah, 1968: 75–76).

It therefore proves that the success of the Egyptian experiences, insofar as borrowing from western laws is concerned, was due to a number of decisive factors which governed the shift from a positive legal culture to a traditional one, and emphasizes the gradual emergence of secular roots in the very core of traditional culture. Thus, despite the presence of certain conflicts of a sociopolitical nature, this by no means detracted from the success of the experience, a success unprecedented in this field. This experience nevertheless had negative repercussions on controversial issues such as the relationship between the incoming legal culture and the recipient traditional legal edifice, and the effect of such a borrowing on the national identity. In short, the Egyptian problems involved in the experience also differed from those which arose in the developing countries of Africa, problems pertaining to the relationship between the traditional legal heritage and the process of integrated development of these societies. For such a legal heritage was considered as an impediment to its legal, cultural and social development.³⁴