An Introduction to Islamic Law (23 page)

The final series of major acts aimed at consolidating the Ottoman state’s legal powers began in 1879. A
Ministry of Justice, which was to bring under its authority the Shari
a and Nizamiyye courts, was established in 1879, thus unifying a hitherto fairly heterogenous system. Several codes pertaining to the competence of tribunals, judicial salaries, public prosecution, and civil and criminal procedure came into existence. In 1888, a new system of examinations and rules for the
appointment of judges was established. In the new system, judges were assigned by the Ministry of Justice
, abrogating the policy of their election instituted earlier. Another act of 1888 required the Ministry to maintain – in perfect keeping with the
modern state – systematic records on every official working in the judicial system. The Shari
a courts themselves were also instructed to expand their
documentary range, recording every case in detail. This keeping of
records was, in line with Western court procedure, occasioned by the establishment of appeal courts where a full review of the appealed case depended upon the submission of extensive documentary evidence. By this point, oral testimony and the traditional procedural laws that were predicated on it had become largely obsolete.

It is true that the modernizing elite in Istanbul was intent on building a highly centralized system and an efficient governance that might one day rid the Empire of European hegemony. Yet the pressures to which Istanbul was subjected were not proportionate to its drive or desire for modernization, these pressures having reached all-intrusive levels short of direct conquest and colonization. The gap between direct colonization and hegemony equipped them with an agency that allowed for some resistance. One might say that Istanbul was not categorical in its desire
to dismantle the Shari
a court system since this jurisdiction reflected a legal domain that was unfavorable to the excessive privileges of European powers. Thus, the highly gradual process by which these courts were marginalized may be explained as part of this resistance and as a defense of
sovereignty
.

The intertwined and complex relationships between the Ottoman Empire and its autonomous Egyptian province perhaps explain the general similarities in their checkered legal careers as indirect colonies of the European powers (Egypt, in any case, for most of the nineteenth century). The most serious challenge for
Muhammad
Ali, Egypt’s powerful governor, was to solve the riddle of European
military and naval supremacy. Although the
Napoleonic “expedition” of 1798 had failed, the threat of European domination was vigorously renewed, especially by Britain. A way out of falling prey to such conquests was to modernize, which meant for Muhammad
Ali building a strong army and navy for defense, and a merchant marine for exports that were to be produced by local agriculture and industry
.

One of the first projects he undertook was the physical elimination of the
Mamluk elite in 1811, as well as the systematic dismantling of the old
tax-farming tradition. An integral part of his
agricultural reform was to confiscate land that was frequently, if not mostly, under the regime of
waqf
(although the policy of land confiscation was to be partly reversed later). Thus, long before Istanbul decided to commandeer the
waqf
s, Muhammad
Ali had already done so, promising
waqf
dependants an income via the agency of the
state. Several other administrative reforms were carried out, but these appear to have had neither a clear direction nor a unified sense of purpose.
A Supreme Council, headed by
Chief Justices from the
four legal schools, was established in order to deal with, among many other matters, mercantile disputes involving foreigners. This Council appears to have been instituted with the dual purpose of: (a) accommodating extrajudicial commercial litigation arising from the extensive economic hegemony that the Europeans exercised in Egypt; and (b) inserting centralizing elements into the judiciary
. Very little else changed on the level of the lower courts, however.

Although Muhammad
Ali acted as the de facto ruler of Egypt, he remained during the 1830s bound by the spirit, if not the letter, of Istanbul’s reformist agenda, represented in the latter’s policies leading up to the
1839 Decree. Such demands, however, were not difficult to oblige, as interest in modernization was equally intense in Egypt. But local
considerations gave it a particular form and process. In 1836 or thereabouts,
French experts, at the invitation of Muhammad
Ali, submitted to him a report with a number of recommendations pertaining to improvements in the military and economic spheres. The crux of the recommendations was the forging of a
centralized administration, which could regulate nearly every aspect of life in Egypt, from the army and guilds, to public traffic and water supply. These regulations, permeating spheres of life that had never before been subjected to such high-level scrutiny, became the hallmark of Muhammad
Ali’s regime as much as it became that of the Ottomans and every other modernizing regime.

Following the French experts’ recommendations, Muhammad
Ali issued in 1837 the so-called
siyasatname
, a reform plan that, much like the new administrative and judicial measures of the day, consciously took Europe and the European practice of government as models to be emulated. The
siyasatname
laid down the general foundations for the changes that were to be carried out during the next few decades. By the time the
Ottoman Decree of 1839 was sent to him from Istanbul for implementation, he could confirm that he had already done most of what was required.

In 1828, Muhammad
Ali sent the first group of Egyptian students to Paris, to study, among other things, law
. After a three-year course, they returned to Egypt and were immediately engaged in
translating French codes and law manuals. During the late 1860s, they produced an Arabic translation of both the
French civil and
commercial codes. Other codes of criminal and civil procedure were translated soon thereafter
.

In the meantime, the Shari
a courts in theory continued to have general jurisdiction, but with the increasing influence and scope of new, Western-style courts their range was steadily being narrowed down. They were already limited to land and real property in general, matters of personal status and criminal cases involving blood money. Then in the early 1880s their power was curtailed even more drastically, due in large measure to the corresponding development of the new courts.

Reflecting the increased interference of France,
Britain and other European countries in the affairs of Egypt, the so-called
Mixed Courts were created in 1876. The Europeans further extended their influence via these courts not only to the affairs of foreigners but also to the whole gamut of the country’s commercial life. They also introduced the notion of
jurisdictional hierarchy, where courts of first instance were established in
Cairo,
Mansura and
Alexandria, with a single
court of appeal in the latter. One year before the establishment of these courts, a series of laws – based mostly on French law – was passed in anticipation, namely, the
Civil Code, the
Penal Code, the
Commercial Code, the
Code of Maritime
Commerce, the
Code of Civil and Commercial Procedure and the
Code of Criminal Procedure.