Integration of Islamic Law in the Fabric of Legal Thought in Egypt
My research starts from observing the hybrid nature of the present Egyptian legal system that fuses together, in its fabric, two different legal sources with two different frames of reference. The first source is Islamic Shari’a, which was confined in 1883 to only the area of personal status. The second source, which constitutes the bulk of Egyptian laws and refers to other areas, draws from Western authorities and was introduced at the same time. The collision that took place between these two systems when they were brought together was substantial, and a great deal of time and effort was required to reconcile the tension between these two rival components and to facilitate the smooth administration of Egyptian justice. In this chapter, I will endeavor to shed light on these efforts and the methodologies adopted in fusing, to a working extent, the two essential components of the Egyptian legal system. I will briefly analyze the dramatic story of the sudden collision between these two systems and the gradual alleviation of the natural tension that resulted.
It is noteworthy, perhaps, from a historical perspective, to state that Islamic law was the only legal system applied in Egypt (as was the case with other Muslim countries) until its occupation by imperial powers in the modern age. The colonial powers, during or slightly before the last quarter of the nineteenth century, reshaped the legal system in these countries and managed to enforce laws of Western origin in all legal fields apart from family law. A type of hybrid legal system emerged then, when Islamic law was confined to family matters, while other areas were assigned to nationally codified laws taken from Western legal sources and were applied by different court systems. Thus, legal education necessarily had to endure a dramatic transformation. The occupation authorities had to launch a campaign, in cooperation with loyal authorities and elites, to produce an acceptable image for the new system under the banner of progress and modernization, in an effort to justify the prompt enforcement of this hybrid legal system instead of the reformation of the traditional system. Claims were voiced that the newly introduced laws did not contradict the conventional system. One piece of evidence for these claims comes from the requirement in Egyptian criminal law, dating from 1883, that in death penalty sentences the Grand Mufti’s approval must be sought prior to the announcement of the court’s decision. In this vein, it was also assumed, as referred to by Abdel Razzaq al Sanhuri, the great Egyptian jurist, that the conventional system of Shari’a was still the law of the land and continued to apply where the promulgated laws were silent. According to this assumption, these new Western laws were the exceptions, and Shari’a remained the rule.
Whatever it may have become, the amalgamated legal system in Egypt seemed, particularly by the end of the nineteenth century, to be lacking in philosophical and authoritative unity. Thus, Egyptians reacted differently in view of the limited options available to them under the British occupation. Shocked by the dramatic shift to a foreign system and the replacement of the conventional one, many jurists and reformers declared hostile attitudes—which are still favored by many political forces today, such as the Muslim Brotherhood and Salafis—toward copying these foreign laws and preferred the other option of modernizing and reforming the old system that suits most of Egypt’s customs and prevailing culture.
This attitude found its earliest expression in the comparative research conducted by a group of Egyptian lawyers and jurists during the late nineteenth and early twentieth century. These early studies comparing the Islamic system and French law, which constituted the main source for the newly introduced law in the country, aimed at identifying prevailing similarities and explaining the relatively few differences between the two systems. This comparative approach, with its focus on prevailing similarities, perhaps unintentionally helped to build bridges between both the concepts and terms of the two poles of this hybrid system. The great Egyptian reformer Rifa’a Rafi’ al Tahtawi made this early comparative approach possible by producing his own translation of French civil law into Arabic during the 1870s, under the auspices of Khedive Isma’il. Three major comparative works must be recognized in this chapter: that of Justice Makhluf al Miniawi; that of Egyptian Minister of Justice Mohammad Qadri Basha, who died in 1886; and that of the lawyer Abdullah Hussein al Taydi, who left his prosperous work as a lawyer at the Sorbonne Law School to return to Egypt and produce his massive work comparing the French Civil Code and its Islamic counterpart. Was Islamic law seeking recognition through these comparative works? This possibility should be investigated.
Many other strategies that perhaps evolved from modern legal education have emerged over time to prove its effectiveness in building the necessary bridges between the two pillars of Egyptian law. The Khedival School of Law was actively engaged in comparative research since its inception and, more importantly, created a common ground for exchanging views and methodologies between its two distinct groups of faculty members. The first group of faculty members, in keeping with their traditional background, taught Shari’a courses, and the other group of faculty members, who had modern qualifications, taught legal topics. The writings of these two groups reflected their efforts to fill the gaps and inspiring approximation between the different systems in both origin sources. The traditionalists abandoned the long-followed mode of writing commentaries on recognized authoritative texts and focused instead on presenting the main concepts and theories of Islamic law. This newly adopted approach must have helped in the aching process of integration. Modernists also participated in this process through their enthusiastic engagement in a more systematic and comprehensive approach to the comparative study of Islamic and Western legal systems. These comparative endeavors quickly led to the extremely significant call for the reform (tanqih) of the old Egyptian civil law, as was anxiously reflected in the prolific writings of al Sanhuri. It could be said without any exaggeration that the new Civil Code of 1949 was the zenith of the old and new waves of comparative strategy.
I must also point out that Egyptian judges also participated in this complex integration process by interpreting the new legal provisions in accordance with their own customs, culture, and values. The course of legal integration in Egypt was invigorated by the promulgation of new Arabic civil laws between 1949 and 1976, to which comprehensive compendia were attached. These compendia link the sections of the law, modeled on the Egyptian pattern, with Islamic legal concepts and authorities. The Civil Law of Jordan of 1976 and that of the United Arab Emirates of 1985 illustrate this approach, which successfully brings together concepts of both Islamic law and laws of Western origin. This type of amalgamation and hybridism is socially and culturally justified and improves the image of the legal system in the eyes of the public. However, much work is needed to minimize the present tension between the two rival pillars of Egyptian law and to bring harmony and unity to the composition of the applicable system.
If this work is to succeed, Egypt’s lawyers and jurists will have to tirelessly exhaust the available strategies for amalgamation, which include comparative research of Islamic and Western legal systems, along with improved methodologies for the study of Islamic law. The recognition of the judges’ contribution to this effort will also be essential. Moreover, the attachment of extended compendia to new laws, which are modeled on the Jordanian pattern, will secure acceptability of the hybrid legal system in Egyptian society and will bring to it more harmony and integration.
I will now briefly discuss the effectiveness of these strategies in shaping the prevailing hybrid legal system, which draws from both modern Western and traditional Islamic sources.