Notes

AUTHOR's NOTE: The author wishes to thank his assistant Mr. Nabil Abdel Fattah who has played a major role in the documentation of this research as well as in the preliminary drafting of some of its points.

1 Had in arabic is originally a distinction or demarcation between two things so that one does not encroach on the other.

2 See Herrschlag, 1973: 108 and Dodwell, 1931, reference to which is made in Herrschlag, 1973.

3 The process of adjustment of Mohammed Ali's global economic policies or sectoral policies still constitutes an object of controversy in Egyptian Islamic jurisprudence. Thus some consider that this policy relied mainly on the principle of national economic independence on the one hand, and the principles of state socialism on the other. Among these is Said, 1954: 50. The same trend is adopted by Hassanein, 1974. Others maintain that Mohammed Ali adopted an economic system which may be called a “Collective system” (O'Brien, 1966: 39). Reference is made to this fact in a book by Metwalli in which he considers this system as being state capitalism (1974: 40).

4 An issue arises in this connection: that of the various effects caused by the changes introduced by Mohammed Ali in the field of real estate property. Helen Ann Revlin maintains that these policies were not affected by the movement of Turkish reform alone, but also by the agricultural reforms carried out by the French during their occupation of Egypt. She finds that French reforms did not in most cases go beyond the stage of planning, basing her information on Egyptian sources such as El Gabarty, El Azhar Sheikhs, and Copts which were in close contact with the new developments during the French occupation. In her view, these people together with the French who remained behind after the withdrawal of the French expedition and those who came during Mohammed Ali's rule may have encouraged reforms similar to those advocated by Napoleon and Menou.

5 Review in Revlin, 1963: 79–90, covering the various changes which occurred in this connection and the ensuing social interaction between the religious institution and the state together with the fundamentalists’ opposition to some of the changes involving their social standing.

6 In his aforementioned letter, Ali Barakat considers that the collapse of the iltizam system was due to the seizure of the charitable wakfs. Some of these were multazimin and the others were wakf superintendents, and their political role dwindled following the clash which occurred between Mohammed Ali and Omar Makram. It was therefore natural that their role in social life should recede due to the new secular trends, the mission despatched to Europe by Mohammed Ali and the borrowing from western sciences. Cf. Barakat, 1970: 151–152.

7 For details, see Shehata, 1961: 116–117; Madkour, 1969; 112–113.

8 Madkour, 1969: 113–114. This fundamentalist jurist considers that all the committee had to do with the rules drawn from definitive judgements was to reformulate them.

9 Madkour, 1969: 114. The entire wakf system was abolished by virtue of law No. 180 for the year 1952. This same scholar considers that the rules of bequest did not follow one specific doctrine of the four religious doctrines. Its most fundamental principles were those of compulsory bequest, whereby grandchildren excluded from inheritance from their grandfather or grandmother would enjoy the right of inheritance provided their grandparents did not bequeath anything to them. This decision was derived from legal followers. The law furthermore permitted bequest to the heir within the limits of one-third of the legacy without the approval of the rest of the heirs.

10 Review these changes in Madkour, 1969: 115.

11 When Aicha Rateb, Minister of Social Affairs, submitted the new draft law on personal status, a confrontation between the ulemas and the Minister took place, and El Azhar students staged a demonstration in opposition to this law, with the result that political rulers had to go back on it, temporarily, under the impact of confrontation with the religious groups.

12 Explanatory note of the Presidential decree providing for law No. 44 for 1979, concerning the amendment of some provisions of the law on personal status.

13 In Abdin, n.d. (Pt. 2, the chapter on the udah), it is said that if the husband divorces his wife and keeps the news hidden from her, then acknowledges it at a later date, the udah starts only from the time of his acknowledgement. If an earlier date is given for the divorce, it will not be acknowledged. See the explanatory note in Note 12.

14 Article 5 bis, Paragraph 3 provides for ways to inform the wife of the divorce, including attendance of registration. If she does not attend, the husband notifies her through a court usher at her place of residence or through a next-of-kin. All this is to be carried out in accordance with procedures incorporated in a decision by the Minister of Justice. The authors of the draft see that the need to register the divorce and to regulate the method of notification must not impinge on the right of divorce which was granted by God to the husband.

15 The principle of divorce for wives other than the first was established in Article 6 of law No. 25 for the year 1925, which reads as follows: If the wife claims that the husband has done her wrong to the extent that marriage can no longer be tolerated she can ask the judge for divorce. Irrevocable divorce is pronounced if the wrong done to her is proved and if reconciliation becomes impossible between them. This provision is taken from the Malikite doctrine and that of Imam Ahmed ibn Hanbal, and is in contrast to the doctrines of both Imam Abu Hanifa and Chafei.

16 Article 6 bis, Paragraph 2 stipulates that “a husband's second marriage without his wife's prior consent is considered harmful to her, in case she had specified as a precondition in the marriage contract that he does not take a second wife, or in case the husband conceals from his new wife an earlier marriage.” In its last paragraph, this article restricts this right of the wife by not giving her all latitude to use it whenever or wherever she wants, but estimates the period when she can use this right to one year, provided she has good grounds for it and in case she had not explicitly or implicitly accepted to remain under his esmah (matrimonial authority).

17 Article 6 bis, Paragraph 2 of the Presidential decree providing for law No. 44 for the year 1979 concerning amendments of certain provisions of the law on personal status and the relevant explanatory note.

18 See Article 6 bis of the previous law for 1979. The legislators consider that the motives behind the third provision does not conflict with the principles of the Shari'a, since it was not banned by the Koran. This has become imperative nowadays as it has become a means of revealing right from wrong and abolishing harm.

19 The legislators consider that the principle behind the law on compensation for the divorce aimed at providing a source of comfort for the woman and that it was one of the principles of charity and generosity called for in the Shari'a. This compensation was made compulsory for the divorce when the marriage was consummated and when separation was not due to a fault on her part.

20 Article 23 bis of the previously mentioned law provides for the following: The husband is to be punished with imprisonment for a period not exceeding six months, and a fine of not more than 200 Egyptian pounds, or either of the two penalties in case of breach of any of the provisions of Article 5 bis of this law, or when he gives false information on his social status, residence of his wife, wives or divorce. The notary is also to be punished with imprisonment for a period not exceeding one month and a fine not exceeding 50 pounds, in case of breach of any of the duties imposed by law. He may be suspended or dismissed from his work for a period not exceeding one year.

21 This article stipulates that the alimony is due to the wife by the husband from the date of consummation of the marriage, whether both partners embrace the same religion or not.

The alimony is dropped in a case of the wife's apostasy or if she wilfully refuses to surrender to her husband for no fault of his. On the other hand, leaving the matrimonial home without her husband's consent in cases permitted by the Shari'a or by customs, or in times of need, does not constitute sufficient ground for forfeiting the wife's right to the alimony. Nor does leaving the house to carry out legitimate work forfeit such a right unless she misuses this right in a way that runs counter to the family interest and unless she fails to comply with her husband's wish for her to stay at home. This alimony constitutes a debt on the husband from the day he refrains from supporting his wife. Legal proceedings cannot be carried out in cases of alimony covering up to a one-year period ending on the day the complaint is lodged.

22 Aicha Rateb, Minister of Social Affairs, in the Cabinet of Prime Minister Mamdouh Salem.

23 The Orthodox creed includes four denominations: Copts Orthodox, Greek Orthodox, Armenian Orthodox and Syrian Orthodox. It is considered that each of these denominations has its own private as well as common sources of law, while the dissolved millah courts (village courts) exercised jurisdiction over them. See Yehia, 1970/71: 149 and also Awad, 1896 and, for the common sources of canon law for Christians, see Sharkawy, 1966: 59 onwards.

24 Sharkawy, 1966: 68–69. Sharkawy considers that the two previous bills cannot be considered legislations by reason of the absence of binding rules. According to him this may be due to the fact that the body of law of 1938 was not submitted to the millah court, which in any case was not competent in the field of legislation. Such a competence fell to the clerical synod to which this body of law was not submitted. As for the 1955 body of law, the synod failed to adopt it, in accordance with the rules governing its meeting. This ruling was incorporated in a resolution which was passed on 12 August 1920 and which was approved by only a few.

25 The denominations of the Catholic creed are:

1. The Copts Catholics who are of Egyptian origin,

2. the Greek Orthodox who are of non-Egyptian origin (Greek),

3. the Armenian Catholics who are of Armenian origin,

4. the Syrian Catholics who are of Syrian origin,

5. the Maronite Catholics who are of Lebanese origin,

6. the Chaldean Catholics who are of Iraqui origin,

7. the Latin Catholics who are of European origin.

All these denominations are subject to the authority of the Pope of Rome, and are considered separate entities. From the historic regional and racial points of view, see Yehia, 1970/71.

26 See in this connection Yehia, 1970/71: 11; Farag, 1969: 22 onwards; Badrawy, 1968: 13; Kira, n.d.: 394.

27 See the explanatory note of law No. 462 for 1955 concerning the unification of the laws on personal status for all nationals.

28 See Yehia & Salama, 1962. Yehia points out that this provision incorporates the rule of “ascription” (isnad) of an Islamic tradition because it determines the applicable law in cases of personal status without indicating the substantive ruling for these cases (ibid.: 9). See various legal discussions concerning the application of this article in the previous references in Note 26.

29 The eminent legal expert Sarwat Anis El Assiouti considers that Egypt borrowed French laws towards the end of the 19th century when foreign capitalists had the upper hand in Egypt's economic life, hence transferring capitalist laws to Egypt to strengthen their economic stronghold. See his important book (1974: 116).

30 Explanation of the technical aspects and principles underlying the theory of obligations in public law is seen in Shehata, 1961: 135 onwards.

31 Shehata considers that the lease contract in Islamic law entitles the lessee to enjoy the right of use, and hence does not compel the landlord to repair the house after he has conceded to the lessee one of the elements of ownership (1961: 139).

32 This is a thorough analysis of the composition of the semi-feudal, semi-capitalist ruling class, particularly those sitting in Parliament. In fact an analysis of the Egyptian Parliament and its social structure in this historic stage, together with the discussion of these laws, confirm the truth of this opinion. Review Assiouti, 1974: 118. One of the most salient features of this new code is the principle whereby a contract constitutes a law governing the contracting parties (Article 147, Paragraph 1) and that the implementation of Islam should be compulsory on the debtor (Article 234, Paragraph 1). Consequently this code, as rightly pointed out by El Assiouti, centres mainly on tying the hands of the debtor and submitting him as a slave to the creditor, as the Romans did in the past, in addition to its great emphasis on everything pertaining to the individual will. Within the framework of liability, the general principle whereby no liability would be entailed without fault still prevailed (Article 163) etc. It failed, however, to give due attention to public interest, and dealt with it only in part. On the other hand, this code underscored the influence of the Sunni-feudal class in the Egyptian Parliament, and encouraged the formation of large landholdings by all possible means, etc. See Assiouti, ibid.: 119 onwards.

33 This important survey can be reviewed in the book written by the great expert Sarwat Anis El Assiouti (1974: 120). Also review the set of preparatory works of the Civil Code, Chap. 1, p. 373 onwards and Chap. 6, p. 13 onwards.

34 There exists an Arabic translation of this report (Tunc, 1968).

35 Kibambaye, first President of the Supreme Court in Senegal during the preparation of this report. B. Anwabizi, Professor at the Faculty of Law, Lagos University, at the time of the preparation of this report.

36 Ali Rashed maintains that Islamic criminal legislations distinguish three areas in the field of crimes and penalties, from the point of view of the rights engendered by man's actions and behaviour. This distinction involves the rights of God, and the rights of his servant or the individual on the one hand, and these rights and those of the community on the other. Thus, there are crimes which entail punishment for God's sake, such as the crimes of hudud and others, as a result of which direct harm is incurred by individuals when crimes affect their own persons, lives or physical bodies; consequently the penalty involves the right of individuals either in an absolute or preponderant manner, as in crimes of retribution or blood money. There are other crimes which are by no means related to the rights of individuals or the society; these are crimes for which penalties are non-specified. (Rashed, 1975: 15–16)

37 Shehata, 1961: 139–140. Information concerning the rules and provisions introduced by the mixed and national codes, as well as by the Ottoman decrees governing the rates of interest and their limits, are taken from Shehata, ibid.

38 Some maintain that the anthropologists, in examining the various aspects of the problems of social control in the traditional (primitive) societies, should take into consideration all the systems which have the same functions as those achieved by law in modern society, regardless of whether these social systems have the same elements as those found in modern legal systems. This is because these conditions and elements are of a formal nature and do not lead to any change in the nature of these systems or their social functions. (See Mahgoub, 1976: 241) Malinowski tends in his study “Crime and Custom in Savage Society” (1926) to widen the scope of the concept of traditional law so as to include all the components of the existing culture. This contributes in one way or another to the establishment of security and social control. He and his followers do not therefore consider customs in traditional societies, as being equivalent to law in modern societies. (See Mahgoub, 1976: 56, 241)

39 See Mahgoub, 1976: 245. There exists a Court of Summary Proceedings in the New Valley, which falls within the administrative jurisdiction of the Guizeh Court of the First Instance (information obtained from some authors and Safeya Mohsen).

40 Mahgoub, 1976: 246. One of the things which proves the conflict existing between official law and the bodies in charge of its application on the one hand, and customary traditional law on the other, is the administrator's attendance at reconciliation councils in order to give them an official character, without their having any effective role either in passing judgements or in their implementation. This is due to the fact that they deliberate issues and settle litigations involving infringement of public rules far from the authorities and without any interference on their part (ibid.: 247–248).

41 See Article 53 of the derbah to which reference is made in Mahgoub, 1976: 249, which comprises descriptive information.

42 Article 1 of the preliminary draft does not specifically state that the Shari'a constitutes a third source of the Egyptian civil code. Thus, Article 1, Paragraph 2 states the following: In case of absence of applicable legislation, the judge may rule according to customs, if not, then in accordance with the principles of natural law and the rules of justice. However, the review committee decided to add the Shari'a in its second paragraph, and amended the paragraph to read as follows: In case of absence of applicable legislation, the judge may rule according to customs, if not, then in accordance with the principles of the Shari'a which are most consonant with the provisions of this law without abiding by any specific doctrine. Some people eventually proposed the deletion of the last sentence of the second paragraph, so that referral to the principles of the Shari'a may be unrestricted, a proposal which was approved by the committee. See Badrawy, 1969/70: 224; also see the set of preparatory works of the Egyptian Civil Code, pp. 191–192.

43 Atallah maintains that the term “natural law” points to a body of rules elicited by the human mind from the nature of social relations and serving as a whole to achieve the notion of justice (1968: 76). He considers that natural law has played an undeniable role in the evolution of modern law, a role which it would be difficult to assess. As a result, speaking about natural law would take the form of irrational mediations which would be inconceivable in modern times. See in this connection the definition of Abdel Hay Hegazi (1966: 322–323); Badrawy, 1969/70: 226.