3. EGYPTIAN LEGAL STRUCTURE: INDICATIONS OF CHANGE

There was a second indication of change in the context of the Egyptian legal structure, an indication which may be called changes from the outside. It coincided with the increase in the number of Circassian Mamelukes.

At this time a number of Tartar laws which had been laid down by Genghis Khan replaced earlier laws. These new laws were to apply to civil matters side by side with the previously outlined Egyptian body of law. With the new and borrowed sources of law, the Shari'a could no longer cope with the new situations, with the result that the supremacy of the Shari'a became jeopardized and the scope of its application narrower and narrower becoming eventually confined to family and wakf (public endowments) laws. This duality of law was perpetuated until Ottoman colonialists set foot in Egypt. This situation calls for thorough examination in view of the systematic cultural and legal infiltration that occurred despite the presence of the Shari'a. This was apart from the backwardness which afflicted the Egyptian society, bringing to a halt many of its legal and civilizational functions.

Following the victory of the Ottomans over the Mamelukes at Merg Dabek and Raydaneyah in AD1517, a change occurred in Egypt's status, converting it from an Abbassid province into an Ottoman province, with the result that Egypt was engulfed in the darkness of civilizational decline.

Occupation brought about a number of changes in both the political and legal systems.

One of these changes took place within the religious elite, involving religious scholars (ulemas) and the administration in the judicial system, their relationship with the central and local governments, the administration of justice, religious denominations and “dervish” as well as the nature of the relationship binding these two professional groups of religious men with the military and civil elites.

According to researchers, another change occurred in the structural make-up of the law and the Shari'a in the dissociation between the rules of the Shari'a on the one hand, and religious and judicial organizations on the other.

Conflict began between customs as a source of law and Islamic law as another source which had so far enjoyed hegemony and supremacy. This change appears more evident, however, when examining the relation between the application of the Islamic penal code (the hudud of Islam) and the restrictions imposed by the political system on its application, ever since the military and the bureaucrats (people working in the administration) imposed restrictions on the application of Islamic penalties. As a result, they had the authority of initiating legal proceedings against criminals, and of passing life-sentences on them without intervention from the judiciary, and far from the procedural restrictions of the courts.

Ottoman rule gave rise to a growing number of legislations emanating from authorities, a situation which brought about a revolution in the administrative, fiscal and legal systems in Egypt.

At the same time, closing the door of ijtihad (personal reasoning) played a role in bringing about the growth of these legislations and the emergence of a class working in the legal field, ulemas. These had to grapple with the changing situations, and hence came to enjoy vast powers in this field.

Furthermore, the deterioration of the legal system in Egypt was a dominant feature in the decline which the country suffered under Ottoman rule.

At the same time, international political conditions led to the emergence of one of the most serious legal, political and social phenomena in Egyptian history – that of foreign concessions, which constituted a substantive factor behind a number of legal and political changes, as will be explained later.

Foreign concessions assumed a preponderant place in the Egyptian legal system. The application of this system widened the scope of these concessions, with the result that foreigners came to enjoy a number of freedoms: freedom of belief, residence, movement, employment, trade in banned goods, tax exemption unless approved by their country of origin. Moreover, foreigners were not subject to either the legislative or judicial systems of the country, with jurisdiction in these fields falling upon the consulates.

These concessions led to a state of total anarchy and the continued duality of the prevailing legal edifice, e.g. a national system and a foreign system. This situation alarmed the government and the elite, so much so that their abolition became one of the pressing demands of the national movement until the signing of the Montreux agreement.