3. DIMENSION OF INTERACTION BETWEEN NATIONAL AND WESTERN POSITIVE PRINCIPLES: HARMONY AND CONFLICT BETWEEN OFFICIAL LAW AND UNOFFICIAL LAW
We have earlier indicated that the Egyptian civil code had adopted a number of concepts and principles derived from Islamic jurisprudence which were reformulated and incorporated in the system of business relations, and that these Islamic legal principles represented an area of traditional national culture in the State legal edifice.
These rules and principles therefore reflected an interaction between the rules of traditional national law and borrowed western positive law. For in the process of judicial application and jurisprudential elucidation, a theoretical interaction also takes place, since the elucidation of these Shari'a rules proceeds from western positive parameters, thus driving this interaction between these patterns of legal rules to unprecedented richness. As a result, there appears on the levels of elucidation and judicial application some kind of interaction and harmony between these two patterns of rules.The present era has witnessed a dwindling of the historic role played by customs and customary rules in governing relations and social interactions, more particularly in the advanced societies. This was the result of the developments and deep changes which involved human society, as well as the growing role of the state and its functions, in addition to the shift of its pattern from one of non-intervention to one of intervention, together with an evolution of the legislative role of the State. In fact, custom was relegated to the background and was to be resorted to only in cases when legislative treatment was absent. Thus, its place in the legal hierarchy as a source of law in the Latin as well as Egyptian systems comes second in the legal base and serves only as a supplement to positive legislations.
In this manner, customs do not come into conflict with the borrowed positive legal rules, because the positive legislator recognizes that customs should have a role in cases of absence of explicit provisions to deal with any social problem.
As a result, customs have come to play a marginal role in modern life, particularly following the growing impact of state functions. However, such a role supplements the positive legal edifice, and may serve as a source of legislative rules which the legislator reformulates in the light of the attitude of the dominant forces and their socio-political interests, in addition to integrating them in the auxiliary system to which they belong.However, custom, or unofficial law as it is commonly called, plays another role different from the previously mentioned supplementary one. This role is a conflicting one, though limited in scope, dimensions and impact, and is mainly confined to tribal areas, such as the New Valley, and the cases of the western Desert most particularly in the Awlad Ali tribal society. In fact, the customary rules which govern social relations in the Awlad Ali society play the same role as the broad positive official laws in the Egyptian society.38 We shall detail the general traits of these rules.
It is worth pointing out that certain studies attempted to put Malinowski's and Radcliffe-Brown's theories on tribal laws and the role of customs in the traditional society of the Awlad Ali community (Mohsen, 1975; Mahgoub 1976) to the test. The same objective was sought in an article by Safia Mohsen entitled Conflict and Law among Awlad Ali of the Western Desert (1975) and a study by Ahmed Abu Zeid (1962) on Blood-Vengeance in an Upper Egyptian village.
One of the most salient traits which characterize the Awlad Ali community is the absence of a representative body or legislative council to legislate legal rules and principles which would govern the behaviour of the political group. There are also no courts which would determine the extent to which citizens should abide by these abstract rules which are devoid of any legislations. Neither is this community acquainted with the post of Public Prosecutor. Mahgoub further maintains that they are not aware of the existence of such professions as that of a lawyer, who assumes their defence, or the police force, or the coercive implementation of penalties provided for in the penal code and supplementary laws.39 The code which governs relations in the Awlad Ali community is not divided into two systems, one for business relations, the other for penalties, as is found in official legislations.
There is furthermore the system of muradi (conciliator) who is chosen by the litigants (the defendant and the prosecutor, to use the official terminology of the pleading system) in order to rule in the mi ad (customary council) which meets to deliberate on the accusation or prosecution and determine penalties (material or moral) in accordance with the rules of the derbah (legislations). There is also the system of awakel (wise men), or chiefs who enjoy traditional authority and who attend the deliberation council to represent the litigants who delegate them. Another system is that oinuzzar (blood-money) which determines the harm caused to the victim, so that the conciliator may apply the law and fix the adequate compensation. (Information in Mahgoub, 1976: 245 onwards)
As a matter of fact, customary law in the Awlad Ali tribal community is based on substituting official laws by the rules of the traditional local system. Some maintain that the elderly in the Awlad Ali community still recall the Hagfa meeting in which they set out to pass customary laws or derbah which comprises 67 articles governing relations between members of the same family unit, or aman (peaceful relationships) between distinctive political units. These laws provide for the breach of the general principles of good conduct, and the types of penalties that befall the criminals, as well as methods of settling tribal disputes.40 There is a traditional system of penalties provided for in the derbah governing nuzzar etc., as well as oaths of allegiance.
An examination of the provisions of the customary law of the Awlad Ali community confirms the nature of the conflict existing between this law and the official national law, in particular the conflict prevailing in the official penal code and the tribal code.
In fact Article 1 of their tribal customary law stipulates that in the case of premeditated murder, blood-money amounting to 400 Egyptian pounds is to be paid, with 300 pounds in the case of an accidental killing. Article 4 of the same law stipulates that in cases of aggression resulting in injury, the conciliator determines the value of the blood-money to be paid in accordance with the gravity of the injury.
The blood-money is to be estimated in relation to the material harm, incapacitation or damage caused to the victim or the group to which he belongs. (Mahgoub, 1976: 248)It is therefore evident that these provisions are in contrast to the official criminal and penal rules which do not include such systems, because the Egyptian criminal code (penal code and code of procedures) has relinquished the system of retribution and blood-money which had prevailed prior to the modernization of the Egyptian legal system in the nineteenth century. Furthermore, blood-money, diyah (a certain amount of money paid as compensation to the family of the victims) and kebara (which is estimated at a certain amount of money and certain animals) comprise, at the level of legal principles, a conflict with one of the general principles of the modernized official legal edifice, which provides for the equality of all citizens before the law. But the kebara differs according to the legal status of the individual who has been the victim of aggression, or according to the structural distance which separates the two political groups, that of the aggressor and that of the victim of aggression, and the type of aggression committed.41
Although the official penal code acknowledges a modern criminal principle, namely the personalization of the penalty, the penal system of the Awlad Ali provides that the distinctive political unit in their community involves joint responsibility in the payment or acceptance of blood-money. There are for instance cases in which the thief has to pay four times the value of the goods stolen from the victim, a system called el tarbah (quadruple) (Article 23), if the stolen goods are found in his house, store, or hands, or if he is caught red-handed. The tarbah is to be paid from the thief's own money without any assistance from his family. This constitutes a special type of penalty in the Awlad Ali community. (Information in Mahgoub, 1976: 253–255.)
This disparity between the traditional rules and the official law constitutes one of the areas of conflict between traditional legal rules and borrowed modern laws or positive laws.
It may be said that the conflicting role of the customary tribal (traditional) law of the Awlad Ali community has relatively but slowly dwindled under the impact of the socio-cultural achievements of the state on their traditional culture. In fact these achievements have contributed to the structural and political change of this community, a change which was brought about by the modern equipment of land reclamation and cultivation as well as by new settlements. Those were aimed at promoting and developing this traditional society in addition to introducing new political activities such as the Arab Socialist Union, the political parties with all their impact on the traditional tribal system, and new key posts in the traditional community (ibid.: 333–335).Conflict, therefore, is a socio-political as well as a cultural and structural feature which governs the relationship between the principles of tribal traditional law and the state official legislations. This unofficial law which stands in contrast to state laws contains a pattern of legal principles and ideas of a tribal nature which contradict those on which modern state legislations are based, namely, integrated historical considerations.
The area of traditional customary law in the Awlad Ali community, although standing in conflict with State laws, yet identifies with it in unofficial traditional rules which govern certain social aspects like those prevailing in Upper Egypt, such as the phenomenon of blood-vengeance.
In a study by Ahmed Abu Zeid on blood-vengeance in Beni-Sami, one of the villages of Upper Egypt, and through the use of the anthropological method, he formulated the law on vengeance on the basis of a descriptive and analytical study of this social phenomenon, with all its implications and repercussions. This law may be summed up in the following axiom (Zeid, 1962: 48 onwards): “The battle occurs in the extended family, but blood falls on the nucleus family"; it is a well-known proverb which sums up the view of Awlad Ali concerning killing and vengeance.
In other words, the murder of a family member represents the humiliation of a closely-knit and cooperative group, with the result that the scope of responsibility widens the area of conflict. Another axiom is that the person who is killed should be avenged by the murder of one member from the family of the aggressor, or whatever families are related to it, regardless of the status of both families (ibid.: 51). Again, the extended family should avenge the blood of its victims at the hands of its sons or any of the extended families, on the grounds that the one single extended family constitutes an integrated unit. Moreover, very often a blood-enmity arises between two or more bedna (extended families). Finally, changes have occurred in the laws on blood-vengeance, represented in certain departures from the old traditions concerning the accosting and harming of women and children (ibid.: 62 onwards).Blood-vengeance laws which have been derived from an anthropological study of the Beni Sami village reflect the situation in many Upper Egyptian villages where customary laws, as unofficial legislations in a local area, are unapproved by the state and stand in contradiction in both their structure and component parts to the rule incorporated in the state penal code.
One word remains on the social developments which occurred in the traditional society during the last few years: it is that they relegated the rules of traditional law into the background, and eventually subdued the conflict between these traditional, tribal rules and state official legislations.