2. DIMENSION OF CONFLICT BETWEEN WESTERN POSITIVE LAW AND NATIONAL LEGAL PRINCIPLES

It may be said that there are numerous areas of conflict between borrowed positive laws and traditional national principles. The following are the areas of conflict, in order of importance:

(1) Conflict between the positive penal code and the Islamic system of hudud

But the penal and procedural laws, as subsidiary systems of the legal edifice, have constituted models which withstood integration.

A critical review of the Islamic criminal code confirms a view advocated even by those who favour Islamic law and its penal code for modern society. According to this view, the phenomenon of incrimination, which was rendered necessary by modern systems as a result of social evolution and its increasing demands, is catered for by the system of ta'zir (consolidation, crimes for which penalties are not specified) which constitutes the legal basis for the secular side of Islamic criminal law. Such a system is capable not only of keeping abreast of modern civilizational systems, but also of taking care of all the criminal procedures devised to control criminal manifestation and their diverse causes, in societies where corruption and dissolution have infiltrated, with crime becoming a serious social illness (Rashed, 1975: 8–9).

The ta'zir can therefore assimilate many of the changes which occurred in the edifice of criminal culture, and the modifications inherent in the application of modern criminal procedures. What remains therefore is the area of the hudud and the right of the “avenger of blood” in crimes of retribution and blood-money,³⁶ which constitute the core of conflict between positive law and the Shari'a. This is a fundamental area where, according to some people, Islamic law should apply. This demand aims for the most part at implementing the Islamic code of hudud in crimes of retribution and blood indemnities.

Conflict arose at the academic legal level, pitting the ulemas and Islamic groups against legal men of western culture, as to whether Islamic law could apply in toto or in part to modern social relations. Conflict also arose at the political level between the political authorities and certain Islamic currents and trends within the official ulema group. In the eyes of many, this represents the key to the issue of application of Islamic law to the modern Egyptian legal system; also it is an issue which constitutes the core of a long socio-political conflict in the Egyptian society.

(2) Conflict between certain rules of business relations in civil law and the principles of the Shari'a

Most of the legal rules which made up both the old and the new Egyptian legal edifices constitute a model area of western legal rules, in their theories and general ideas, and therefore do not conflict with the legal principles derived from the Egyptian national heritage. Also there exists an area of integration and interaction where state law as derived from the western heritage is adopted side by side with certain Islamic rules in the field of business relations. But despite this fact, the Egyptian civil code incorporates a set of rules which run counter to certain important religious principles of the traditional legal edifice which had been prevailing in the Egyptian society.

The set of rules which conflicted with traditional Islamic principles focused on the issue of interest rates and usury which were banned by the Shari'a.

In 1883, the Egyptian legislator adopted a set of civil codes related to maximum official and unofficial rates of interest. Another amendment was introduced on 10 July 1892 modifying rates of interest to 5%, 7% and 9%. With the promulgation of a decree, these rates were lowered to 5%, 6% and 8%. However, the national legislator intervened to put an end to usury, which constituted a manifestation contrary to the principles of the Shari'a, by promulgating law No. 49 for the year 1923.

Shafik Shehata considers that this reform constituted a step towards the elimination of this type of dealing which was known in the early Islamic days. This was in fact some kind of credit practice which was rendered unnecessary through two kinds of mortgage: estate mortgage through non-acquisition, a system adopted in the Egyptian civil code and which had been unknown to Islamic jurisprudence, and the estate mortgage through acquisition which was current in Islam and adopted by the Egyptian civil code on a larger scale than in the French civil code.³⁷

It may therefore be said that the new civil code carried within it a somewhat stringent trend vis-à-vis usury, this being evident in the reduction of rates of interest to 4% in civil matters, 5% in commercial matters, and 7% in cases of common consent. It eventually banned, in the most explicit terms, compound rates of interest, as well as any increase in rates of interest on capital.

However, such a conflict was not restricted to the legal rules governing various rates of interest which were based on principles of the French positive civil code and those emanating from Islamic law, but extended also to the rules of time limitation, takadwn: 15 or 5 years depending on the circumstances, and three years in cases of claims of invalidation (Shehata, 1961: 73).

As a matter of fact, trends prevailing in the Egyptian legal profession and among certain religious groups favoured the opinion that the civil code should not be tampered with but that there should preferably be amendment on a partial basis. This was to be achieved by the elimination of any principle running counter to Islam, such as the system of interest rates, which was construed by many religious groups as being tantamount to usury, and that of time limitation. However, some of the people sitting on the committee working on the application of the Shari'a were of the view that it was necessary to draw all the rules which make up the civil code from Islamic law, to the exclusion of any derived from western models.

This opinion constitutes an unrealistic and unscientific approach, in view of the absence of theories which could be used in laying down such Islamic civil codes, in addition to the impact which such a view could have on issues of legal application and social stability, apart from the existence of a longstanding heritage of judicial application in Egypt.