1. THE EGYPTIAN LEGAL SYSTEM IN THE ISLAMIC ERA

A. Customs

Customs remained one of the major components of the Egyptian legal system, thus reflecting the impact of the social and class movement on the process of formulating the legal control of the movement of society.

This situation led to the emergence of the phenomenon of dual structure as one of the fundamental features of Egyptian law prior to the Islamic conquest, a phenomenon which eventually brought about the supremacy of Egyptian law with its deeply rooted Pharaonic principles. This is apart from the legal system brought into the country by occupation, a feature confirmed by the detailed examination of the legal principles which governed the process of legal development before the Islamic era.

The Islamic conquest of Egypt led to the total collapse of the Egyptian legal system which had prevailed during the Roman rule, but this ostensible collapse failed to have any radical impact on the substance of the legal principles. For the fact that these principles were stripped of their official legislative character, led to their transformation into customary legal principles which it was not easy to keep away from the legal organization of relations and other societal systems. They consequently remained the major source of the Egyptian legal system at the beginning of the Islamic era.

Thus, Egyptians continued to implement these rules within the context of relations governing their private lives, apart from the fact that the first two conquerors did not apply the Shari'a at the outset of their conquest. This was so because Islamic legal principles had not yet been fully delineated, nor was there a sufficient number of religious scholars in a position to cope with the new situation or apply legislative models to the newly developing reality which had been governed by one of the most advanced legal systems in ancient civilizations.

One of the most outstanding factors in this connection lies in the fact that the initial principles underlying Islamic law in the area of business relations had not yet been fully outlined.

An evidence of the central place occupied by customs in this connection is the fact that they constitute one of the auxiliary sources in the legal structure of the Shari'a, a situation which made possible the continued application of the Egyptian legal principles which prevailed under the Romans. The preponderance of these principles continued but only to the extent that it did not conflict with the Shari'a as exemplified in Koran and Sunna.

This special role of the Egyptian customary laws continued as one of the basic components of the comprehensive legal edifice of the society, together with a quantitative as well as qualitative growth of the Shari'a and its legal models, taking as a point of departure the dynamism and development of the Abode of Islam. This situation led to the emergence of a broad sector of a ruling Islamic elite, namely the class of Islamic scholars.

Generally speaking, customs as one of the auxiliary sources of the legal structure of the Shari'a played an effective role in the development of Islamic jurisprudence.

With respect to Egypt in particular, customary legal rules contributed to the enrichment of activities in the field of jurisprudence and legislation. In fact, the Egyptian legal system made it possible for many of the followers of the schools of Islamic jurisprudence to get acquainted with their fundamental features, the habits and customs of the Egyptian people, together with their legal implications. It was thus natural that these rules should have had an impact on Islamic scholars in their application of Islamic legal norms and concepts to these customary rules. Thus we can find out to what extent the rules which were in line with the norms of the Shari'a continued to prevail, and whether other contrary norms were applied.

B. Non-Islamic laws

Most of the historic and legal studies of Islamic Egypt, whose aim is to determine the components of the structure of the Egyptian legal system in this period, tend to be selective when examining non-Islamic legislations.

This method constitutes a gross historic oversight of some of the other sources of law, which can be called non-Islamic laws and which prevailed in Egypt prior to the Islamic conquest. The non-Islamic sector of the legal system is made up of two parts: Coptic laws and Jewish laws, which form part of the laws on personal status which are characterized by a plurality of systems, and the implementation of which differs according to the religious status of the individual in the Egyptian society.

Nevertheless, we can by no means elucidate the various aspects of the application of these two legislations as two distinctive systems in the legal structure, without delving deep into the Islamic concept vis-à-vis non-Moslems in the Abode of Islam and the legal model governing personal relations under family law. This law comprises the matrimonial model divorce and the legal implications involved in the dissolution of the marriage bonds. We will then deal with the Coptic canon law and the various sources which made up its fundamental features, both in theory and application.

We will then deal with the Jewish laws and their internal sources.

(1) Islam's theoretical attitude vis-à-vis non-Moslems: model and practice

In Islamic jurisprudence the term “People of the Covenant” applies to non-Moslems, such as Christians, Jews, Zoroastrians, which are aligned to the Islamic state by a covenant, by virtue of which the Islamic state is committed to defend them in return for their payment of the head tax (geziah). It may be said with some-scientific reservation that the head tax under the Islamic taxation concept is equivalent to the defence tax under modern taxation systems.

This Islamic outlook vis-à-vis non-Moslems is determined by the Koran and the Sunna which constitute the source of Islamic theory vis-à-vis the problem of plurality in the Abode of Islam.

However non-Moslems were not committed to the payment of any other taxes, with the exception of the head-tax. In fact, funds involved in domestic trade were exempted from taxation, whereas those involved in foreign trade were subject to a tax amounting to half the tithe. Cultivated lands on the other hand were subject to land tax (khurag) for Moslems and non-Moslems alike.

It is worth noting that the internal affairs of non-Moslems were to be left to themselves so long as no dispute arose, but in case a litigation was referred to the Moslem Wali (Governor) they were passed in accordance with the general rules of Shari'a.

These are the broad lines of the history of Egyptian law in the period under review. We will now get acquainted with the method of application of these general rules as seen from the historical perspective.

(2) Coptic law

Christianity saw the light in Alexandria prior to the Islamic conquest, where it spread among the Greek community, then to the Egyptians of Lower Egypt and Upper Egypt. It was only three centuries later that the Egyptian Coptic diocese was founded, headed by an Egyptian archbishop.

Due to interaction with Hellenistic culture and the prevailing historic and substantive conditions, there emerged generation after generation of clergymen who set out to formulate the principles of Coptic law. Foremost among these were Archbishops Cantinos, Clemendes, Origanos, Athenasios and Shenouda. In the words of Assiouti, Egyptian historian, “the head of the Church of Alexandria was the head of the entire world.”

Meanwhile, the Christian religion centred its attention and teachings on bringing about a change in man by relying on the Christian doctrines, ethics and religious rites without proceeding to the legal organization of social relations among its followers.

A Coptic law gradually emerged in Egypt. At the outset this law governed the family, then proceeded to include other social relationship. The basic outlines of Coptic law derived from the principles of natural law and those related to positive law which were in harmony with the principles of Christianity.

Conflict with the Roman occupier ended when the Roman state embraced Christianity, which became the official state religion. At this juncture the Egyptian Church was vested with powers to consider cases of a religious nature or personal status such as marriage and divorce. Clerical laws including biblical rules and principles applied, in addition to the decisions passed by the Christian clerical synod and those emanating from both local and public religious institutions.

These rules, as previously stated, were influenced by the positive rules derived from Pharaonic laws, which in turn had been influenced by both Greek and Roman laws following their adaptation to Christian fundamental principles.

Such were the Coptic legal principles which prevailed prior to the arrival of Amr Ibn El Aas to Egypt.

But following his conquest of Egypt, Amr Ibn El Aas carried out the administrative reorganization of the country, which became one of the Islamic provinces (wilaya) which he in turn subdivided into small administrative units. He then appointed in each of these units a Coptic judge who was vested with legal powers, to pass judgements in any dispute that arose between non-Moslems in the field of personal status in accordance with their laws.

As for the disputes which arose between Moslems and non-Moslems, jurisdiction for their settlement fell to a legal council comprising judges from both parties. Thus in the Moswiya province a Moslem (Arab) judge joined his non-Moslem counterpart with the result that the Coptic judge no longer enjoyed full jurisdiction except in those disputes which involved personal status and which were governed by Christian canon laws.

Meanwhile, Islamic legal rules began gradually to take shape by grappling with new problems, whereas the administration took on an Arab colouring. With the spread of Islam, the various strata of the Egyptian society eventually began to be governed by Islamic law. As a result, Copts no longer enjoyed any legal or legislative jurisdiction outside the scope of personal status.

(3) Jewish law

In the early Islamic era, a great deal of ambiguity surrounded Islam's attitude vis-à-vis the Jews and their history in the Egyptian society. It may however be said with a sufficient measure of historic reliability that Jews received equal treatment with the other people of the Covenant in conformity with the principles of freedom of belief and religious tolerance. This view is substantiated by the neutral stand of the Jews vis-à-vis the Arab conquest. In fact, they did not show any opposition to the conquerors, an attitude which may be attributed to their poor economic status, their long-standing conflict with the Greeks and the hatred the Romans felt for them.

When Amr signed the so-called “Alexandria reconciliation” pact, the document stipulated that the Jews should remain in Alexandria. Furthermore the Jewish canon law was drawn from the Turah (Old Testament) which was its primary source. Unlike the Bible, it comprised secular regulatory principles side by side with doctrinal rules. Another source of law is the Talmud which is made up of the Meshnah, called in Jewish canon law the verbal or second Turah, and the Jamrah or explanations and comments added to the Meshnah.

It is believed that the attitude of Islam towards the Jewish canon law was the same as its attitude towards Coptic canon law, particularly in the field of personal status which was regulated by Jewish canon law.

All other areas were governed by the rules of the Shari'a.

(4) Legislations emanating from the authorities

This source of law played a major role in developing the process of legislation and in harnessing it to regulate the new socioeconomic relationship of the Egyptian society.

It was agreed among the scholars of Islamic jurisprudence that authorities were to be allowed to pass legislations in those areas which were not governed by either Koranic or Sunni provisions, i.e. this was to be done in accordance with the principle of legitimate policy.

This was to constitute a supplementary source of law.

(5) The legal system of the Shari'a

As stated earlier, a consensus was reached among historians on the application of the legal provisions of the Shari'a to socioeconomic as well as legal relationships. Generally speaking, it appears that the history of such an application is nothing but the repercussion of the development and growth of the Islamic edifice as a whole.

Whereas this trend, which prevails in historic and legal studies, is valid in most cases, nevertheless Egypt's legal reality, which constituted an ever-developing civilizational and legal process, played a special role prior to the Arab conquest. This understanding was the result of the ambiguity which prevailed in the works of Egyptian historians concerning the legal system which existed in Egypt during the Islamic era, a situation which called for thorough study in order to dissipate the obscurity of that period, and to know how Islamic law was applied.