The story of law reform
Egypt in the nineteenth century was formally part of the Ottoman empire but it possessed a large measure of political autonomy.[122] Internal order in the Ottoman empire during the nineteenth century was maintained by a variety of institutions—the police, inspectors of markets, the rulers court of complaints, and so on.
Sharia courts had primary jurisdiction over urban Muslims,[123] rural tribes followed customary rules and procedures (urf),[124] and milliyya courts were regulated by and for the various sects of Christians and Jews.[125] [126] Hence sharia courts were by no means the only form of law administration.11 Indeed, the ruler had his own body of administrative law (qanun) that did not draw its authority from the shari'a. From the mid-nineteenth century on, a series of progressive legal reforms was carried out in the empire under the rubric of the tanzimat (the Commercial Code was issued in 1850, the Penal Code in 1858, the Commercial Procedure Code in 1861, and the Maritime Commerce Code in 1863) that involved the wholesale adoption of European codes. The first attempt in the Ottoman empire to codify the shari’a, known as the majalla, was pub-Reconfigurations of Law and Ethics in Colonial Egypt 211 lished over a period of seven years, from 1870 to 1877. Officially it had jurisdiction throughout the empire, but in fact it was never effective in Egypt.12 There the formal control of Egypt’s national budget by the European powers, to whom it had become heavily indebted, very quickly led (in 1876) to the introduction of a civil code for the Mixed Courts of Egypt—an autonomous institution administered by European judges by which European residents (over one percent of the population at the end of the nineteenth century) were legally governed in all matters including their interactions with Egyptians (thus disputes between natives and Europeans always fell under the jurisdiction of the Mixed Courts).
A code for shari ‘a courts was promulgated in 1880 and substantially amended in 1887. In 1883, a year after the British Occupation of Egypt, a modified version of the code used in the Mixed Courts was compiled for the National (ahliyya) Courts, both codes being based mainly on the Napoleonic Code. On the other hand, courts administering sharia law, often described by European historians as “religious courts,” were deprived of jurisdiction over criminal and commercial cases arid confined to administering family law and pious endowments lawqdf ). The so-called “secular courts” (both Mixed and National) had jurisdiction over the rest.13 The bureaucratization of the shari'a courts (that is, the introduction of an appellate system, a new emphasis on documentationin judicial procedure as well as the authorization of written codes) drew on Western principles and incorporated the shari ‘a into the modernizing state. The march from premodern chaos to modern order was initiated by Europeans and overseen at first by them and later by Europeanized Egyptians.14 Law began to disentangle itself from the dictates of12. See S. S. Onar, “The Majalla,” in Law in the Middle East, ed., M. Khad- duri and H. J. Liebesny, Washington, D.C.: The Middle East Institute, 1955. In al- Shari'a al-isldmiyya wa al-qanun al-wad‘i, Cairo: Dar al-Sharuq, 1996, p. 15, Tariq al-Bishri mentions that there were attempts to codify the shari'a in the sixteenth and seventeenth centuries.
13. It may be noted, incidentally, that Fathi Zaghlul, in his influential history of the legal profession in the nineteenth century entitled al-Muhamd (Cairo, 1900), does not write of al-mahdkim al-diniyya wa al-‘almdniyya but of mahakim al-shar'iyya wa al-madaniyya—that is, not “religious and secular courts” but "shari'a and civil courts.” By the time we get to the 1930s we find the term mahakim zamaniyya (literally “temporal” courts) being used explicitly, as by Hamid Zaki (see note 17).
14. A summary statement of “thc progress made in the. administration of justice” in Egypt under British tutelage is contained in John Scott, “Judicial Rereligion, becoming thereby both more modern and more secular. In 1955, under Jamal Abdul Nasir, the dual structure of the courts was finally abolished.15 This unification and extension of state power, and the accompanying triumph of European-derived codification, have together been seen as part of Egypt’s secularization and its progress toward “the rule of law.”