5. EGYPTIAN LAW FROM MOHAMMED ALI TO THE PROMULGATION OF MODERN LEGISLATION

With the advent of Mohammed Ali on the Egyptian political scene, his assumption of power, and the approval of the Sublime Porte of the Egyptian popular administration, a crucial stage set in with the completion of the process of change as well as the social and cultural development which had taken root at the time of the French expedition.

However, the focus of the modernization efforts indirectly led to the establishment of the foundations of a modern Egyptian state. Under those new conditions, Egypt set out to establish contacts with the modern legal civilization, most particularly in the area of Latin legal culture in its French sector. But this was achieved only intermittently.

Mohammed Ali thus embarked on a process of change by introducing reforms in the traditional, cultural and political structure of Egyptian society; aware as he was of the failure of Ottoman experience, Mohammed Ali, a man of the religion, set out to liquidate the semi-feudal class of the Mamelukes which were the actual rulers of the country. He thus carried out the physical liquidation of his opponents, and went as far as to get rid of the source of traditional legitimacy in the Egyptian society. The actual starting point was a change in production, relationships in agriculture, industry and trade, which brought about a number of structural changes in the closed economic edifice which had regulated all socioeconomic relations in Egypt before the Napoleonic expedition.

From the theoretical point of view supremacy was given to the Shari'a, but the process of building a modern state ready for external expansion necessitated funds, administrative cadres and an institutional system, steps which had a decisive impact on building up the legal base of the country.

The major trait of the Egyptian legal structure in its legislative aspect was the lack of general positive legislation in civil dealings, according to the historian Omar Mamdouh. Thus from the theoretical point of view it was the Shari'a which was supreme.

These rules, with the exception of the traditional penal code of the Shari'a, lacked the required competence to wipe out the elements of the closed economic edifices and build up state monopolies and the new administrative and legal systems they required in order to achieve the new objectives of the society, and to ensure political domination of the ruler over the country.

Certain Egyptian researchers are of the view that when modern penal legislation was introduced in Egypt only a few propositions of Islamic law relating to retribution and blood money (for injuries) were applied. As for the hudud, Egypt had followed in the footsteps of the Ottoman empire and had totally discarded them for hundreds of years. New positive legislations were promulgated to govern the socioeconomic relations of the Egyptian society in the new era.

First, the Peasant Law was promulgated in January 1830. It constituted the beginning of infiltration of positive law into the structure of the Egyptian society at this stage. This law aimed at organizing Egyptian agriculture in the light of the new changes. But a technical and social analysis of its rules would lead us to say that these rules were mostly pre-emptive and penal. In July 1837 Mohammed Ali promulgated the law on Royal policy, which was meant to regulate the internal government and administrative edifice while organizing work relations between public civil servants and the state, indicating the duties to be performed and the penalties to be imposed in case of breach of duty. This law was made up of a preamble, three chapters and sixty-one articles. In 1842 a law governing bridge construction, irrigation and the recruitment of seasonal workers, as well as relations between directors and irrigation engineers was promulgated.

This plethora of legislative rules and regulations, together with the anarchy it created and the difficulty of obtaining precise knowledge about their provisions, led the government to compile and organize them in bodies of law without introducing any new rules.

However the most serious change that took place in modern Egyptian thought was the recession of the supremacy of Islamic law and the borrowing of western positive laws, with the result that the application of the Shari'a to social relations was subject to the will of the ruler. Thus, in cases falling outside the scope of relations between the ruler and the masses, supremacy was to the Shari'a. This recourse to Islamic law, however, fell short of coping with other crimes related to the government's aim at ensuring change and at mobilizing the society to go beyond the national boundaries and look to the outside world.

It may be said that the stage of legal amalgamation with modern Latin civilization was launched during Mohammed Ali's rule. As a result, a thorough examination of the history of Egyptian law reveals a new phenomenon, that of the duality of existing legal cultures. Thus, there were legal rules and regulations which found their origin in Islamic law, while others had their roots in borrowed western culture and civilization, particularly Latin.

The decline of the socio-economic edifice in the country and its systematic deterioration after Mohammed Ali's death led to the growth of foreign concessions, particularly after the collapse of the state commercial and industrial monopolies, together with a growing foreign penetration into the country. This situation led to the perpetuation of this phenomenon in both its legal and judicial aspects.

It therefore appears that foreign concessions in Egypt assumed serious proportions, unlike the case in other Ottoman provinces. This gave rise to the promulgation of a legislation whereby foreigners were to be governed by the laws of their own countries, and the application of these laws fell to the jurisdiction of consular courts.

Meanwhile the spread of this phenomenon, with the submission of most foreigners to non-Egyptian laws, caused a state of anarchy which had a profound impact on socioeconomic relations. Inequality between Egyptian and foreigners led to the introduction of legislative and judicial reforms which initiated a new stage in the development of Egyptian law.