III. Relationship between National Legal Culture and Western Positive Laws
The relationship between the elements of traditional culture and those borrowed from western positive culture is one of the fundamental issues which confront the legal system in developing societies.
This relationship likewise faces a crisis when it comes to application, a crisis linked to the issues of integrated development as a means of breaking the shackles of the traditional society with its negative repercussions.With all the historic crisis that it involved, this issue, despite its being one of the central ones faced by the Egyptian society, yet had world-wide dimensions, in view of the fact that it had socioeconomic as well as political connotations in Third World countries, particularly the African.
This situation led UNESCO to entrust the International Society for Legal Sciences to draw up a detailed plan for the study of the legal systems of the newly-independent countries, while pinpointing the changes which had occurred in these systems during the colonial era. This study was aimed at examining changes and modifications that could be introduced into the systems so that they would effectively respond to the dictates of development in these countries. The study was to deal in its first stage with the African countries alone (Tunc, 1968: 3).
This underscores the significance of the relationships that exist between the rules of traditional law and those borrowed from western positive law, and how far this affects the cause of progress and development in its various aspects.
However, while acknowledging in principle the importance of these problematic issues in Africa, conflict arose between researchers in this field, some advocating reform, such as Kibambaye and B. Anwabizi35, and others of a more conservative view, such as Max Gluckman, who tended to highlight the human values entrenched in African life and the richness of African traditions in the field of law and the administration of justice.
The latter therefore encouraged respect for traditional legal systems, emphasizing the danger inherent in adopting amendments and applying them to a majority of Africans. On this point, an author endorsed the conservative view of the eminent anthropologists Max Gluckman and RenГ© Gendarme, to the effect that a far-too-advanced legal system, ill-adjusted to existing socioeconomic and intellectual structures, was no less dangerous than an outdated one (see Tunc, 1968).This controversy became more acute, hence truly reflecting the depth of the crisis that confronted the African societies, and gave an example of the various dimensions of the problems when examined in the light of the Egyptian reality. In fact, these problems would have to be viewed in an integrated manner which would involve the entire social, legal and cultural edifice and all related issues, and in the final analysis would be interlinked with the political movement of the Egyptian society. Hence, a study of the relationships between the various elements of the national legal heritage and those borrowed from the modern Latin legal civilization in its French aspects, would set the stage for a thorough examination of the demand for the application of Islamic law and jurisprudence with a view to adjusting them to the realities of a changing society. Some go as far as to ask for its substitution for the existing legal edifice.
A reservation should however be entered with respect to the Egyptian case, which differs from its African counterpart, to which reference was made with a view to highlighting the gravity of these central issues. This is so because the modernization of the Egyptian legal system differs historically and qualitatively from that of the African, insofar as its relationship with the issues of progress and development are concerned and because Egypt's borrowing of western substantive law occurred at a relatively earlier date that was the case in Africa. Egypt's shift to the west ushered in a process of modernization with the introduction of the western liberal model which the society easily assimilated.
However, the conflict that arose in this connection was of a socio-political nature, being linked to the roots of the political movement, and in some other aspects to the historic crisis of the edifice of national culture, as well as to the composition of the intelligentsia since the time it established channels of communication with modern European civilization towards the end of the nineteenth century.There is one final observation. The previous study of the components of the Egyptian legal edifice has underlined the phenomenon of dual legal culture which dominated Egyptian legal structure, and its cultural roots which are partly traditional and partly borrowed from western positive laws. This duality is the outcome of numerous socio-political and economic changes, as a result of which the traditional rules of the Shari'a lagged behind and consequently could no longer play their functional role, nor could they adjust to the new conditions. On the strength of these reservations and the previous limitations it would be possible to examine the relationships existing between the indigenous legal principles and the positive principles and components of the Egyptian legal edifice at three levels: