The creation and operation of the modern

Egyptian legal system, 1876-1937

In the last quarter of the nineteenth century, Egypt's rulers worked to

build an independent judiciary and implement codified law. In the
process they consciously turned away from Islamic and Ottoman
sources and towards continental Europe. How can this change be
explained? Was it primarily caused by imperial penetration, a desire to
construct a liberal political and economic order, or a state-building and
centralization project? A study of the timing and nature of the changes,
combined with an analysis of the writings of some of those involved,
reveals that the role of imperialism, though significant, at most
accentuated and modified already existing trends. Liberalism played a
notable role as well, though the nature of that liberalism was hardly
inconsistent with the primary factor: the desire to build a strong and
centralized state. The imperialist, liberal, and statist pressures for legal
reform will each be considered in turn. Yet because the exact nature of
the late nineteenth-century reforms have often been miscast (and even
overstated), it is necessary to offer an accurate understanding of the
changes of that period (along with the continuation of those trends in
the early twentieth century).

The construction of a new legal system in Egypt

The reforms of the late nineteenth century did mark a new departure for
Egyptian legal development but also built on some trends that had been
evident in earlier reforms. For several decades various efforts had been
made to build a more centralized and hierarchical judiciary in addition
to accentuating the role for positive legislation (without contradicting or
eliminating the influence of the Islamic shari'a).

Judicial reform in the nineteenth century

In the early nineteenth century, Muhammad eAli (r. 1805-1848)
constructed several judicial structures alongside the Shari'a Courts.
23

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 24 The rule of law in the Arab world
Largely staffed by officials, these councils combined judicial with non-
judicial functions (including administration and issuing laws and
regulations). Specialized commercial tribunals were also established in
Cairo and Alexandria. Under Muhammad cAli's successors, local
councils, similarly staffed by officials (sometimes joined by sharica-
trained judges), operated both to decide cases and to prepare them for
decisions by superior bodies. In general the councils applied laws and
regulations issued by the Egyptian government; since Egypt was an
Ottoman province, the influence of imperial qanun and legislation was
felt at times as well. Under Ismacil (r. 1863-79), the system was
expanded to a hierarchy of councils or administrative organs in villages,
provincial centers, and Cairo.1 Alongside these official tribunals, the
Sharica Courts continued to operate. In addition, the capitulations,
which had the effect of granting extraterritorial status to most
Europeans, necessitated that consular courts try most criminal charges
and civil suits in which the defendant was non-Ottoman.
The non-sharica judicial structure that existed for Egyptians in the first
three-quarters of the nineteenth century thus exhibited three funda-
mental features. First, it was a centralized system, with officials and
bodies in Cairo exercising a great deal of control. When local and village
councils were established, their role was generally limited to encouraging
conciliation or deciding minor cases; thus, even when the system
penetrated the country outside of Cairo it was highly hierarchical in
nature. The reliance of these bodies on administrative regulations and
legislation issued from the government in Cairo accentuated the
centralizing aspects of the system still further, as Kenneth Cuno has
shown (especially for issues relating to land tenure).2 Local officials
probably still retained a great deal of discretionary authority (especially
because they often staffed the judicial organs), but the groundwork was
laid for a centralized and hierarchical judicial system.
Second, the system made no effort to distinguish between adminis-
1
For descriptions of the judicial system of Egypt in the first three-quarters of the
nineteenth century, see Byron Cannon, Politics of Law and the Courts in Nineteenth
Century Egypt (Salt Lake City: University of Utah Press), especially chapter 2 and Latifa
Muhammad Salim, Al-nizam al-qadaH al-misri al-hadith (The Modern Egyptian Judicial
System) vol. I, 1875-1914 (Cairo: Markaz al-Dirasat al-Siyasiyya wa-1-Istratijiyya bi-1-
Ahram, 1984). The most comprehensive description of the system as it existed
immediately prior to the construction of the National Courts is the memorandum
submitted by the minister of justice, Husayn Fakhri, to the Egyptian cabinet on
December 2, 1882. It is printed in Al-kitab al-dhahabi li-l-mahakim al-ahliyya (The
Golden Book of the National Courts), 2 vols., (Cairo: Al-matba£a al-amiriyya bi-bulaq,
1937), vol. I, pp. 107-15. See also Ehud R. Toledano, "Law, Practice, and Social
Reality: A Theft Case in Cairo, 1854," Asian and African Studies, 17, 1983, p. 153.
2
Kenneth J. Cuno, The Pasha's Peasants, Land, Society, and Economy in Lower Egypt,
1740-1858 (Cambridge: Cambridge University Press, 1992), especially chapter 10.

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 The creation of the Egyptian legal system 25
trative and judicial functions. Indeed, there is no reason to believe that
the two were regarded as constituting separate functions of the state, at
least for the first half of the century. Administration involved drawing up
and implementing policies and regulations; the application of criminal
and land law, for instance, was very much a proper role for administra-
tion. If central authorities felt any concern about the large role that
administrative officials played, it was only that the system allowed some
to use their authority in ways that violated official policies.3 The councils
and bureaux involved in applying the laws and regulations to concrete
cases were never referred to as courts; only at the apex of the system was
there reference to anything related to justice (the Majlis JamaHyyat al-
Haqqaniyya or Council of the Assembly of Justice, founded under
Muhammad cAli; later reconstituted as the Majlis al-Ahkam or Council
of Judgments).
Third, the judicial structures of the first three-quarters of the nine-
teenth century, while not entirely based on the sharica and Islamic
courts, hardly repudiated them and in fact worked alongside them,
generally harmoniously. The law applied by the state-operated courts
varied, but was generally based on a shifting blend of Ottoman qanun
and Egyptian regulations and decrees. For the most part, this body of
law was either based on the shari'a or did not contradict it. In areas
where there was no obvious text to apply, judicial bodies had consider-
able interpretive latitude.4 While there is little evidence on how this
latitude was exercised, it is likely that local custom and the shari'a would
have informed the work of the courts. Under Ismacil some departures
from traditional sharica criminal punishments were implemented, but
there is little evidence that this excited controversy, especially because
sharica judges continued to sit on some judicial bodies and tried some
cases (especially murder) concurrently with the state-sponsored courts
(indeed, the concurrence of a shari'a judge was required before a
murderer could be executed.)5 The only significant controversy invol-
ving the sharica was more political than religious in nature. When cAbbas
(r. 1849-54) claimed the right to order executions, the Ottoman
authorities objected on the grounds that this was a violation of sharica-

3
See, for instance, Ehud R. Toledano, State and Society in Mid-Nineteenth Century Egypt
(Cambridge: Cambridge University Press, 1990), pp. 170-77.
4
The latitude was especially great in civil disputes. See the memorandum by Husayn
Fakhri, Al-kitab al-dhahabi, vol. I, p. 109.
5
Cannon does claim, however, that the village courts constructed under Ismacil did
prompt some criticisms: "Conservative defenders of the inviolability of the qadfs
traditional jurisdiction naturally criticized the councils for their apparent disregard of the
importance of the sharica in the lives of villagers" (Politics of Law, p. 34). However,
Cannon provides no source or reference for this assertion.

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 26 The rule of law in the Arab world
sanctioned procedures (reserving the authority for the sultan and the
sharica judge). In essence, the sultan viewed the measure as a step
towards Egyptian sovereignty. After a diplomatic crisis, a compromise
was adopted under which cAbbas would refer execution orders to a
committee which included the Ottoman-appointed qadi.6 Without
adequate documentary evidence, it is difficult to ascertain how the state-
sponsored judicial system actually operated. It is likely, however, that
even after the construction of village courts, Egyptians at all levels of
society continued to bring some cases to shari'a judges regardless of
official procedures (as will be seen in chapter 6, this is precisely what
occurred in Qatar in the 1970s and 1980s). Thus, rulers abrogated the
shari'a in only a few areas and the net effect of the new judicial structures
probably did little to decrease the actual influence of s/zanca-trained
judges.
In the last quarter of the nineteenth century, a new court system
emerged that partially evolved from the earlier structures designed to
build a centralized and hierarchical judicial structure. Indeed, the new
courts were initially called "councils" (majalis) as well, rather than
courts, in contemporary discussions.7 Yet an examination of these
courts - the Mixed Courts and the National Courts - also shows that
there were some important departures from previous efforts, particularly
in the degree to which they separated the judiciary from administration
(by building an independent and professionalized judiciary) and in their
deliberate adoption of European models and codes at the expense of
Islamic and Ottoman antecedents.

The formation of the Mixed Courts

The growing European political and financial presence in Egypt
throughout the nineteenth century made the issue of the capitulations
and the consular courts increasingly salient in Egyptian politics and
economics. In the 1860s and 1870s Egyptian officials grew frustrated at
their inability to enforce civil and criminal law against foreigners.
European residents of Egypt jealously guarded their privileges, but none
could describe the system as clear and rational. In the 1870s a mounting
fiscal crisis left European creditors and bondholders worried that official
debts would not be repaid, and there was no confidence that the

6 £
Aziz Khanki, "Legislation and the Judiciary before the Construction of the National
Courts," in Al-kitab al-dhahabi, vol. I, p. 79. See also Salim, Al-nizam al-qadaH vol. I,
pp. 17-18.
7
The Mixed Courts and the National Courts were generally referred to as "majalis"
rather than "mahakim" in the Arabic press until the middle of the 1880s.

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 The creation of the Egyptian legal system 27
Egyptian judicial system would enforce claims against the government.
Egypt's leaders badly needed a system that would protect the country's
financial interests without alienating foreign bondholders who could
cause a diplomatic crisis and fiscal collapse. And Europeans wished for
courts that would not diminish their privileges but whose judgments
would be enforced.
Constructing a system that gained the assent of this diverse coalition
took great diplomatic effort and considerable time. Nubar Pasha, an
ambitious and creative politician who served the Egyptian government
in a variety of capacities (including three terms as prime minister)
sought to respond to such conflicting pressures. It took nearly a decade
for him to assemble an international coalition that acquiesced in the
creation of a new judicial system for all civil cases in which a foreign
interest was involved. Nubar began pursuing the idea of Mixed Courts
in 1867; they did not begin operation until 1876.8
Nubar initially proposed a unified judicial system for civil and criminal
cases in Egypt, having jurisdiction over cases involving foreigners and
later even over cases involving only Egyptians.9 The courts, to be staffed
with a large European contingent, would rule on the basis of a
European-derived code. The judicial and administrative functions of the
state were to be separated. In the course of negotiations with the
capitulatory powers, Nubar was forced to make many concessions
before he achieved his objective. France in particular jealously protected
its privileges. Egypt had to accept a foreign majority on the bench and a
fairly faithful adoption of the Code Napoleon. The scope of the courts
narrowed: consular courts would retain criminal jurisdiction in cases
involving foreigners; the Mixed Courts were to deal only with civil and
commercial cases. Various measures ensured not only the independence
of the mixed judiciary but also, in some ways, its predominance.
Two specific concessions merit mention. First, an article added to the
mixed codes (and borrowed neither from the Code Napoleon nor from
English law) required the government to enforce judgments against
itself; that is, if a foreigner brought a suit against the government and
won, the government was obligated to carry out the ruling. Second,
8
For more detail on political struggles concerning the Mixed Courts from their creation to
their abolition, see Nathan J. Brown, "The Precarious Life and Slow Death of the Mixed
Courts of Egypt," International Journal of Middle East Studies, 25 (1), 1993, p. 33. See
also F. Robert Hunter, Egypt under the Khedives 1805-1879 (Pittsburgh: University of
Pittsburgh Press, 1984), and, more comprehensively, Cannon, Politics of Law.
9
Nubar's initial proposal of 1867 was slightly less ambitious; the proposal was expanded
in 1869. See Jasper Yeates Brinton, The Mixed Courts of Egypt, revised edition (New
Haven: Yale University Press, 1968), chapters 1 and 2, and Cannon, Politics of Law,
chapter 3.

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 28 The rule of law in the Arab world
Egypt agreed to adopt the French parquet system which designated
officers of the court to investigate and prosecute crimes, advise the court
on legal matters, and represent the general interests of the state. The
Mixed Court parquet was to be headed by a foreigner and staffed by
both foreigners and Egyptians.10 The construction of the parquet and its
removal from Egyptian control limited the degree to which Egypt's
rulers could influence the courts. Not all these changes represented
concessions for Nubar. His aim in working to establish the courts was
not only to secure some relief from the problems engendered by the
capitulations; he also sought to restrict the power of the Khedive.11 The
Mixed Courts thus had much to recommend them. On the one hand,
the system appeared to offer Egyptian interests greater protection than
the system of consular courts. On the other, the operation of the system
was safe from - and even circumscribed - the power of the Khedive.
The Mixed Courts were certain to offend some of their creators in
operation because they had been founded to meet the needs of
antagonistic parties. The coalition that had constructed the Courts
broke apart as soon as they began issuing judgments, especially in light
of the growing fiscal crisis that intensified the conflict between Ismacil
and his creditors. In fact, by the time the Courts began operating in
1876 (for a five-year trial period), Egypt was bankrupt and had accepted
foreign oversight of its finances. When the Mixed Courts began to rule
favorably on many claims against the Khedive and the Egyptian
government, Ismacil began to grow hostile to the new judicial
structure.12 Although Ismacil did not openly challenge the authority of
the Courts, he claimed that implementation of the rulings would have to
be delayed until Egypt's finances improved. Initially he did so with some
European support; Egypt's financial overseers agreed that full compli-
ance would result in fiscal and political upheaval. When Ismacil went
farther, however, and attempted to evade foreign financial control as
well as the Mixed Courts, he was deposed by the Ottoman sultan under
heavy European pressure.13
Thus the coalition that had created the Mixed Courts quickly turned
10
Najib Makhluf, Nubar basha wama tamma cala yadihi (Nubar Pasha and What He
Accomplished) (Cairo: al-Matbaca al-cumumiyya, 1903), p. 96; Cannon, Politics of Law,
p. 50.
11
See F. Robert Hunter, "Self-Image and Historical Truth: Nubar Pasha and the Making
of Modern Egypt," Middle Eastern Studies, 23 (3), 1987, p. 370, and Earl of Cromer,
Modern Egypt (London: Macmillan, 1908), vol. II, pp. 316-17.
12
On the contribution of the Mixed Courts to the fiscal crisis, see Cannon, Politics of Law.
13
Salim, Al-nizam al-qadaH, vol. II, pp. 75-79, and Cannon, Politics of Law, chapters 4
and 5. According to Cannon, Egyptian landowners shared IsmaciPs resentment of
European control, but also feared that unlimited khedival power would threaten their
own economic position and therefore were sometimes protective of the Mixed Courts.

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 The creation of the Egyptian legal system 29
c
against its own creation. Isma il and the two most important European
actors, Britain and France, were suspicious of the Courts almost from
the beginning, both recognizing that their rulings had undermined
Egypt's precarious finances and obstructed several attempted solutions.
They did not attempt to abolish the Courts outright but did propose
reforms. However, after IsmaciPs fall in 1879, threats to the Courts came
from different sources. Powers such as France came to appreciate the
Mixed Courts as a check on Egyptian autonomy and khedival authority.
But Egyptian resentment of the Courts spread outside the government
to the growing nationalist movement. The British defeat of the
nationalists in 1882 and their resulting occupation probably saved the
Mixed Courts from fatal attack.

The creation of the National Courts

Shortly after the establishment of the Mixed Courts in 1876, some of
Egypt's leaders began to pursue domestic legal reform. Nubar's original
plan to have the Mixed Courts evolve into courts of general jurisdiction
for both Egyptians and foreigners had stalled because of Egyptian fears
this would aggravate foreign domination and European unwillingness to
make concessions that would make the Mixed Courts more attractive to
the Egyptian government. In 1880 and 1881 the Egyptian government
therefore developed plans for a separate judicial structure (though for
most of those involved the goal of unification with the Mixed Courts was
hardly forgotten). The new bodies were referred to first as al-majalis al-
mahalliyya, or local councils (the same term used for their predecessors)
and later al-mahakim al-ahliyya.14
Creating the new structures was seen to involve two separate tasks.
First, the structure and composition of the courts had to be determined.
This task was completed by May 1881 and a decree to construct the
courts was issued in the fall.15 Second, a code had to be developed for
them to enforce. Even though the proposed courts attracted great
attention, work proceeded very slowly, and contemporary newspapers
frequently urged the committee to speed its efforts. For instance, on
April 18, 1882, the daily al-Ahram reported: "The council of ministers
did not complete yesterday the question of al-majalis al-mahalliyya, and
it will consider the matter again. It is to be hoped that it is swift in
14
The contemporary English translation of these terms was generally "Native Courts" or
"Native Tribunals." By the 1930s complaints that this was derogatory led to the term
"National Courts." I have used the latter term for the sake of consistency.
15
See al-Ahram, May 28 and September 29 1881; the decree itself is covered in the
newspaper throughout November and December 1881; more generally, see Cannon,
Politics of Law, chapter 6.

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 30 The rule of law in the Arab world
enacting them as there has been a long delay."16 When the quasi-
parliamentary Majlis Shura al-Nuwwab ended its session in the summer
of 1882, two years after the cabinet had authorized planning to begin,
work was still incomplete. Parts of a draft code had been submitted, but
the increasingly assertive Majlis had not made its feelings known in any
definitive way. The matter was not easy: while some favored an adoption
of the code of the Mixed Courts, others preferred a code more closely
based on the sharica. The former would aid the cause of judicial
unification; the latter could be argued to be more appropriate to a
Muslim society.
The brief war between Egypt and Great Britain in 1882 delayed
matters for the rest of the year. By the time that the Egyptian government
returned to the question, the country was occupied by the British and
the Majlis Shura al-Nuwwab no longer existed. Cabinet ministers were
divided on whether or not to implement the previously developed court
structure and code immediately (using an adapted mixed code) or to
postpone the matter until a better code (presumably based on the
sharica, building on the earlier efforts) was completed. The cabinet
decided on speed rather than perfection; the argument was explicitly
made that any delay would only open Egypt to greater influence. The
faster the new courts could be set into operation the less Europeans
would be able to guide their development. Ironically, therefore, it was an
attempt to contain foreign influence that led to a code more divergent
from Islamic sources than most would have liked. The mixed code was
adopted with minor modifications.17 While religion was not irrelevant to
the debate over legal reform, more attention was given to the specific
relationship between the courts and other official bodies. Perhaps the
matter which drew the most controversy was how lawsuits against
government officials should be handled. An effort to establish a separate
administrative court was abandoned (though, as will be seen, the idea
was revived and implemented in 1946); instead it was decided that the
National Courts would be competent to rule on infractions committed
by government officials in performance of their duties. The final decrees
establishing the National Courts and their codes were issued in 1883;
they began operating in 1884 in Cairo and Lower Egypt (National
Courts were not established in Upper Egypt until the end of the
decade). The structure of the National Courts mirrored that of the
Mixed Courts fairly closely; the cabinet even decided to cancel earlier
plans for a supreme court, termed the Mahkamat al-Tamyiz, at the apex
16
For similar comments, see al-Ahram, February 12, February 28, and April 27, 1882.
17
The chief modification involved a more favorable treatment of debtors; the goal was to
make the code friendlier to rural landowners. See al-Ahram, January 22, 1883.

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 The creation of the Egyptian legal system 31
of the system because it would result in a tier not found in the Mixed
Courts. The Egyptian leadership clearly hoped not only to maintain
control of the new National Courts but also to merge the National and
Mixed Courts (so as to gain control over the latter) at an early date. In
other words, establishing independent National Courts was a step
towards diminishing the independence (even enmity) of the Mixed
Courts as soon as possible. Despite the government's hopes, the Mixed
Courts continued their separate existence for sixty-six years rather than
six months.18

The nature and impact of the reforms

The judicial reforms adopted in the 1870s and 1880s entailed funda-
mental changes in the administration of justice in Egypt. Yet they also
built upon several decades of reform and experimentation that had the
general result of increasing the oversight of the central government over
issues of law and justice. The creation of the Mixed Courts and National
Courts furthered the process of building a centralized and hierarchical
judiciary (though the Mixed Courts in particular can hardly be said to
have been controlled by the central government). What separated the
new court systems from their predecessors was therefore not their
hierarchy and structure (where they simply accentuated previous trends)
but three other features - their separation from administration, their use
of comprehensive codes, and their abandonment of Islamic and
Ottoman for European models.
First, the new judicial bodies were to be staffed by a professionalized
judiciary independent from the remainder of the state apparatus. No
longer would administrative and judicial position be linked (though low-
level local administrative officials did retain some authority over minor
infractions and disputes), and judges were to be drawn from those with
formal legal training rather than administrative experience. The ideal
was immediately put into practice for the Mixed Courts; it took
somewhat longer to develop the professionalized judiciary for the
National Courts (and some judges from the previous judicial bodies
were appointed to positions in the National Courts). Not only were the
new courts to be separate from the administrative apparatus, but an
effort was also made to meet more ambitious standards of judicial
independence. International support for the Mixed Courts and the
18
The information on the construction of the courts between 1882 and 1884 is based on
the several memoranda and cabinet minutes published in Al-kitab al-dhahabi3 vol. I;
contemporary press coverage (chiefly in al-Ahram); and Cannon, Politics of Law,
chapter 7.

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 32 The rule of law in the Arab world
insistence of various countries of their right to nominate judges to the
bench meant that any attempt to establish Egyptian government
authority over the Mixed Court judges would have led to diplomatic
crisis. Yet even in the National Courts, provisions were made for judicial
independence that went beyond simply separating administrative and
judicial functions. Judicial appointments were to be made by the
Khedive (the hereditary governor) on the recommendation of the
minister of justice and the cabinet, but judicial discipline would be solely
in judicial hands. 19 Administrative acts were specifically placed within
the jurisdiction of the National Courts (though, as mentioned above, the
attempt to establish a specialized administrative judiciary proved
abortive). When the prime minister informed provincial governors of the
creation of the National Courts he specifically admonished them against
interfering in judicial affairs.20
Second, both the Mixed Courts and the National Courts were based
for the first time on comprehensive law codes. The role for positive
legislation had increased throughout the nineteenth century in the
Ottoman Empire as a whole, and Egypt generally kept pace with
Ottoman developments (though without always adopting Ottoman
legislation). Thus the idea that courts would rule on the basis of state-
legislated or ruler-decreed law had a firm basis by the time of the
creation of the Mixed Courts and National Courts. Yet these two
systems went much further than their predecessors. The new codes were
to cover all civil and criminal cases; they governed both substantive and
procedural matters. Of course, subsequent legislation could amend or
supplement the codes, but their existence established permanently in
Egypt that, except in matters of personal status, law was made by the
state and by political authorities. No argument was made that these were
simply regulations, carried out within the bounds of - or codification of
- the sharica.
Indeed, the third innovation of the late-nineteenth century consisted
precisely of a turn away from Islamic and even Ottoman models and
legal thought and towards European sources. Throughout Ismacil's
reign there had been a definite but limited growth in European
(particularly French) legal influence. The Mixed Courts were based on
European models so the European powers would cede them jurisdiction.
But European models were used even in the National Courts. This did
occasion discussion in Egypt, and there were proponents of a greater use
of the sharica in the National Court codes. What seems remarkable in
19
See the provisions of the National Court law published in al-Ahram, December 30,
1881.
20
Al-Ahram, 29 September 1881.

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 The creation of the Egyptian legal system 33
retrospect, however, is how little acrimony characterized the debate. The
authority of the National Courts to order an execution without the
presence or approval of a sharica-trained judge did occasion debate (and
it is still the case today in Egypt that executions must be approved by the
muftU the official charged with issuing authoritative interpretations of
Islamic law).21 Yet given the current-day strength of s/zanca-minded
critics of the Egyptian legal system, the subdued tone of the debate in
the 1880s is striking. The Egyptian government does seem to have
lessened the speed of the transition by allowing the Shari'a Courts to
continue to hear all suits that were brought to them (much as the Qatari
political leadership did in the 1970s, as will be seen).22 And many of the
original judges of the National Courts had experience in the preexisting
al-majalis al-mahalliyya which had coexisted with the Shari'a Courts.23
In a different way, however, the Egyptian government increased
discontinuity by staffing the National Courts with foreign judges. The
majority of the judges were Egyptians, and when foreign judges were
hired an effort was made to resort to nationals of countries with a lower
political and military profile in Egypt (the first judges were drawn from
Belgium and the Netherlands).24 Even though the foreign element was
eventually eliminated in the twentieth century, the decision to look
almost exclusively to continental Europe in matters of legal reform
marked a decisive break from preexisting judicial structures.

The battle for control of Egyptian justice, 1884-1922

The British did not turn their attention to matters of law and justice
until several months after the occupation in 1882. Making use of the
delay, Egypt's government rushed to complete the construction of the
National Courts in order to keep the courts out of the control of the
occupying authorities. Even after this step, the occupiers focused on
legal issues only sporadically until the end of the decade. Thus they
21
See al-Ahram, March 5, March 10, and April 24, 1883. Some of the controversy may be
explained by Ottoman criticisms that failure to consult a s/*<zn c a-trained judge would be
contrary to practices prevailing throughout the Ottoman Empire.
22
T h e matter is not completely clear, but the cabinet did decide in December 1882 to
allow shartfa courts to continue to hear such suits. See Al-kitab al-dhahabi, vol. I,
pp. 116-18. Fourteen years later, an Egyptian lawyer claimed that when the National
Courts were still established, Egyptians would still bring disputes to the shari'a courts.
See " T h e Progress of the National Courts," al-Muqtattaf, 20, July 1896, pp. 521-22.
23
See the cabinet decision to create the National Courts issued in December 1882,
reprinted in Al-kitab al-dhahabi, vol. I, pp. 119-20.
24
Indeed, the Egyptian government sought Belgian judges months after the occupation,
even before the codes for the National Courts were completed. See al-Ahram, April 18,
1883.

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 34 The rule of law in the Arab world
found themselves confronting two judicial structures not of their making
(or even of their liking): the Mixed Courts and the National Courts. For
the four decades of the British occupation, these structures remained
important (and even grew in significance) despite numerous British
attempts to dominate, reshape, or even replace them.
The Mixed Courts represented a particularly complex issue for the
occupation because of their international nature and close connection
with many aspects of Egyptian government and finances. In the early
years of the occupation, the British seemed uncertain as to their purpose
in Egypt. The problem was that they had two contradictory commit-
ments: to restore the khedival government and sound finances to the
country and to leave it as soon as circumstances warranted. The
capitulations blocked both paths. On the one hand, if the British left
Egypt with the capitulations intact, the sort of fiscal and political crisis
that had led to the occupation might recur. On the other hand, were the
British to remain in Egypt, capitulatory privileges would obstruct their
control of Egyptian affairs. Already during the first year of the
occupation, Lord Dufferin complained c'Every day my attention has
been attracted by the absolute impossibility of even the most necessary
police regulations being carried into effect in consequence of the
impotence to which the Egyptian Police officials are reduced by the
capitulations, and the facilities afforded to foreigners to escape from the
consequences of their illegal acts." 25 The capitulations were an obstacle
to reforms that went beyond the suppression of crime. The British
sought changes in the state budget, taxation, justice, and a whole host of
administrative matters. Such changes inevitably affected foreigners and
thus came within the jurisdiction of the Mixed Courts. Indeed, in 1887
the Mixed Court of Appeal ruled that the Egyptian government had no
authority to change the codes of the Mixed Courts unilaterally,
guaranteeing each capitulatory power the right of veto over legislation.26
When it became increasingly apparent that the occupation was not a
temporary measure, British resentment of the capitulations only in-
creased. The British came to feel that the capitulations were the largest
obstacle to their domination of the country.27 Yet this resentment only
protected the Mixed Courts. While the Courts were often regarded as a
25
Dufferin to Granville, April 2 8 , 1 8 8 3 , F O 141/168, n o . 138A.
26
F o r o n e example of t h e difficulties this caused in the reform p r o g r a m the British w o u l d
have liked t o carry o u t , see N a t h a n B r o w n , " W h o Abolished Corvee L a b o r in Egypt a n d
W h y ? " Past and Present, 144, A u g u s t 1994, p . 116.
27
L o r d Lloyd w r o t e of this period: " T h e chief p r o b l e m s e e m e d to have crystallized itself at
length into a choice b e t w e e n stagnation - a n eternal prolongation of the existing state of
affairs - a n d t h e extinction by h o o k or by crook of the Capitulation privileges." Egypt
Since Cromer ( L o n d o n : M a c m i l l a n , 1933), vol. I, p . 2 7 .

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 The creation of the Egyptian legal system 35
nuisance by the British occupation authorities, any diminution of the
capitulatory privileges could be accomplished only by either strength-
ening the Courts or by ignoring the claimed rights of capitulatory
powers (which would have precipitated a diplomatic crisis). In general,
British officials therefore avoided any direct attack on the Courts
themselves (and even worked to strengthen their legislative authority).28
Egyptian leaders, too, were ambivalent about the Mixed Courts in the
early years of the occupation. On the face of it, a system that limited
Egyptian autonomy, especially in areas of great contemporary concern
such as public finances and the judicial system, would have little to
recommend it. Yet most Egyptian leaders, like the British, found some
attractive features in the Courts. Particularly in the first few years of the
British occupation, the Egyptian government sought to increase its
judicial authority and therefore pursued the idea of amalgamation of the
Mixed Courts and the National Courts; this necessitated a respectful
attitude to the Mixed Courts in order to make the proposal attractive to
capitulatory powers. Later in the occupation, the usefulness of the
Mixed Courts increased. Even Egyptian officials who found their own
authority limited by the capitulations and the Courts often identified the
British occupation as the more significant threat to their power and the
country's autonomy. The capitulations and the Courts seemed to be
obstacles to annexation or other British efforts to assert greater control.
Thus the Mixed Courts survived: for the British and the Egyptian
governments the Courts limited the effects of the capitulations; for
Egyptians the Courts also circumscribed the authority of the British (an
increasingly attractive feature as the occupation wore on). Of course, for
foreigners resident in Egypt and their home governments, the Mixed
Courts appeared to offer the surest guarantee of the continuation of their
capitulatory privileges.
The National Courts operated on a firmer political foundation than
the Mixed Courts but became an early focus of a subtle battle for control
between the Egyptian government and the British occupiers. Despite
their initial non-involvement with the National Courts themselves, the
British moved quickly after the occupation to establish some measure of
28
In general, Cromer, the British Consul-General in Egypt, was more resentful of the
Courts than Drummond Wolff, who negotiated Britain's status in Egypt with the
Ottomans. Drummond Wolff saw strengthening the Courts as the price of capitulatory
reform; Cromer seemed to see the Courts as a significant obstacle in themselves, albeit a
lesser one than the capitulations. For the positions of the two men, see Confidential
Prints 5531/1 (i), 4, and 7 and 9238(i) in British Documents on Foreign Affairs: Reports and
Papers from the Foreign Office Confidential Print, Part I, Series B, vol. 15 (University
Publications of America, 1985). For a comprehensive account of this complex period,
see Cannon, Politics of Law, Part III.

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 36 The rule of law in the Arab world
influence in the Ministries of Interior (where the undersecretary was
British and the police were staffed with British officers) and Justice
(where a British official headed the niyaba> an Egyptian counterpart to
the French parquet in which members of the judicial corps supervise the
investigation and prosecution of crimes and represent state interest in
court). A deliberate decision was made to leave provincial administra-
tion free from direct British control. In 1884 Nubar, the architect of the
Mixed Courts and a leading proponent of judicial reform, returned to
the premiership. He managed to provoke crises that led to the
resignations of the senior British officials in the Ministries of Interior
and Justice, but the police remained under British control. The National
Courts began to attract increasing British attention. In order to avoid the
pockets of British control, Nubar argued that a wave of rural criminality
required the construction of new, emergency structures. The National
Courts, therefore, were deprived of jurisdiction in most provincial
criminal matters only one year after their construction. New "Commis-
sions of Brigandage," under the supervision of the provincial governors
(and thus independent of the British, the police, and the National
Courts) were constructed to investigate and suppress crime throughout
29
the country.
The construction of the Commissions of Brigandage under Nubar
constituted an ironic step indeed: forced to choose between judicial
reform and Egyptian autonomy, Nubar opted for the latter. The result
was that matters of crime and justice were placed again in the hands of
administrators, and all scruples about judicial independence (and even
torture) were forgotten in the effort to keep matters of law and justice
partially free from British hands. The step was also temporary. In 1887
Nubar was compelled to appoint a European to head the niyaba
(though he managed to select Charles LeGrelle, a Belgian rather than
British official). Later he attempted to fill the vacancy created by the
death of the British head of the Egyptian police with an Egyptian
official. Increasingly suspicious of Nubar, the British pressured the
Khedive to dismiss him in 1888.30 Lord Cromer, the British agent and
Consul-General in Egypt, wrote to the British Foreign Office at the time
of the unsatisfactory state of Egyptian justice, making clear that a

29
F o r more detail on this episode, see Nathan Brown, "Brigands and State Building: T h e
Invention of Banditry in M o d e r n Egypt," Comparative Studies in Society and History, 32
(2), 1990, p . 2 5 8 . See also Harold Haakon Tollefson, Police and Ghajfir Reforms in
Egypt, 1882—1914, P h . D . dissertation, Department of History, University of California,
Santa Barbara, 1987.
30
T h e story is recounted in Afaf Lutfi Al-Sayyid, Egypt and Cromer (London: Murray,
1968), pp. 7 2 - 7 4 .

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 The creation of the Egyptian legal system 37
stronger British hand would be introduced when the timing was
propitious.31
That moment came the following year in the wake of a report by
LeGrelle charging the Commissions of Brigandage with systematic
abuses (including the use of torture to extract confessions). Cromer
confronted Riyad, Nubar's successor as prime minister, presenting him
with only two choices:
One was to abolish the Commissions of Brigandage altogether; the other was to
provide that the prisoners should always appear before the Commission of
Revision, and that a European member should be appointed to this latter
Commission.
Riaz Pasha was evidently much indisposed to abolish the Commissions which
he considers necessary for the time being. At the same time, he is so violently
prejudiced against the employment of Europeans in the Egyptian service that he
preferred complete abolition to the appointment of a European member to the
Commission of Revision.32
The Commissions were abolished in the May of 1889.
Having reestablished the jurisdiction of the National Courts, the
British occupation authorities then began to assert control over the
Courts and the administration of justice. As a first step additional
European judges were appointed to the Egyptian courts. Then, in 1890,
John Scott, a judge in India, was called upon to investigate the Egyptian
legal system. He recommended the appointment of a British advisor for
the Justice Ministry. This would effectively complete the process of
bringing the Ministry under British control. Scott himself was selected
to be the first advisor. Riyad had now lost everything Nubar had gained
and resigned in the wake of losing this battle in 1891.
Scott's title of "advisor" was misleading: he quickly established his
ability to supervise the employment of foreign judges (where he favored
British over continental judges). And he charged that shortcomings in
the National Courts required that he be consulted in matters of judicial
appointment and promotion. Accordingly he chaired a committee of
judicial inspection within the Ministry of Justice.33 While the committee
was theoretically only to advise the minister of justice, the step effectively
gave the British a supervisory role over the National Courts and
established a greater degree of executive authority over the judiciary.
After the first decade of the occupation, the British stood clearly in
31
See Baring to Salisbury, February 23, 1888, F O 141/255, no. 88. Evelyn Baring did not
become Lord Cromer until 1892; I refer to him as Cromer even before his elevation to
the peerage to avoid confusion.
32
Baring to Salisbury, May 9, 1889, F O 141/266, no. 2 2 1 .
33
M u h a m m a d Sami Mazin, " T h e National Courts after their Construction," Al-kitab al-
dhahabh vol. I, p . 179.

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 38 The rule of law in the Arab world
control of the National Courts. However, a more ambitious effort to go
beyond controlling to reshaping Egyptian justice was indefinitely
postponed. The British attitude was clear even before the occupation:
French law codes were unsuitable but probably unavoidable in Egypt. 34
The National Courts were flawed in British eyes from the beginning
because of the decision to adopt a complex and culturally inappropriate
model. After his departure from Egypt, Cromer wrote:
It is true that, prior to 1883, no system of justice existed in Egypt. It is not,
however, on that account to be supposed that the English were free to introduce
into the country any system which they preferred. Such was far from being the
case. French law and procedure had already taken root in Egypt. The codes
administered by the Mixed Tribunals were French. All the young Egyptians who
had received any legal training had been educated in France. It was, therefore,
inevitable that the new Tribunals should be based on a French rather than on an
English mode. The necessity was regrettable, for a simple code of law and
procedure, somewhat similar to that which was subsequently introduced into the
Soudan, would - more especially in criminal matters - have probably been more
suited to the requirements of the country than that which was actually
adopted.35
Indeed, the introduction of British judges who had often served in India
insured that periodic proposals would be made to "Indianize" or
"Anglicize" Egyptian justice throughout the history of the occupation.
In 1883, even before the National Courts began operation, Benson
Maxwell, the British official hired to head the niyaba, endeavored to
convince Egyptian and British officials to change course, complaining
that he could not operate with a French-style code of criminal
procedure. The Egyptian minister of justice replied that "it is more easy
for one legal officer to master the foreign system than for the eighty
judges who are to be employed in the new courts to administer a justice
the rules of which are foreign to their whole legal education." 36
While Maxwell's efforts in 1883 met with no success, limited forays in
the direction of Anglicizing Egyptian justice were made in following
decades. Modifications to Egyptian law codes under the occupation
were often based on British expertise and advice, though changes were
relatively minor. The Shari'a Courts came under frequent criticism from
British officials, and Cromer expressed his belief that the only solution
was "to abolish [them] as a separate institution altogether, and to
transfer their jurisdiction to the ordinary Civil Courts." 3 7 However,
34
F o r an example of such a c o m p l a i n t at the time that the codes were being written in
1 8 8 1 , see M a l e t to Granville, N o v e m b e r 2 8 , 1 8 8 1 , F O 141/144, n o . 3 4 8 .
35
Earl of C r o m e r , Modern Egypt, vol. II, p p . 5 1 6 - 1 7 .
36
M a l e t to Granville, S e p t e m b e r 1, 1 8 8 3 , F O 141/175, n o . 3 8 5 .
37
C r o m e r to Salisbury, N o v e m b e r 8, 1896, F O 3 7 1 / 1 4 6 2 0 , n o . 137.

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 The creation of the Egyptian legal system 39
c
because of the political sensitivity of anything related to the shari a> this
step was not taken until 1955, long after the British had lost their
influence over the legal system. Under the occupation, British autho-
rities limited themselves to encouraging the Egyptian government to
increase the formalization of the Shari'a Courts and to construct a clear
hierarchy of lower-level and appellate courts. The British education
advisor also clashed with the French director of the Egyptian law school;
in 1907 a British director took his place.38
More significant measures were taken at the local level. Convinced
that Egyptian justice was remote and procedurally complex, British
officials experimented with various systems of circulating courts using
simplified procedures and often local notables as well. Based on British
experience both in England and in India, these courts focused generally
on criminal matters, handling minor cases and issuing verdicts that were
difficult (sometimes impossible) to appeal.39 In 1912 over two hundred
"Cantonal Courts" (mahakim al-akhtat) were established, using simpli-
fied procedures and non-professional judges (generally drawn from the
ranks of rural notables).40 The Cantonal Courts had critics: some
thought that they encouraged litigiousness; 'umdas (village mayors) saw
them as an encroachment on their authority.41
The British had only achieved slight modifications in the Egyptian
legal system by the time of the First World War. The Mixed Courts and
the National Courts were still very much intact and operating on the
same French-inspired basis as they were founded upon. The outbreak of
war between Britain and the Ottoman Empire in 1914 finally made it
possible for the British to pursue a far more ambitious plan. Britain
declared a protectorate over Egypt and considered outright annexation
into the British Empire. While that option was rejected (although it was
raised periodically throughout the war), Britain made clear its opinion
that Ottoman sovereignty over Egypt had ended. The British Foreign
Office pushed the matter further, arguing that the end of Ottoman
sovereignty also entailed the end of the capitulations, a position imposed
on a suspicious Egyptian government with difficulty.42
38
D o n a l d M . Reid, Lawyers and Politics in the Arab World, 1880-1960 (Minneapolis:
Bibliotheca Islamica, 1981).
39
See Salim, Al-nizam al-qadaH, vol. I, p p . 1 3 3 - 3 8 .
40 c
Abd al-Latif G h u r b a l , "Statistics o n the N a t i o n a l C o u r t s / ' Al-kitab al-dhahabi, vol. II,
p p . 2 3 9 - 4 0 ; Salim, Al-Nizam al-qadaH, vol. I, p p . 1 3 8 - 4 3 .
41
See, for e x a m p l e , the objections of the financial advisor contained in a letter to
K i t c h e n e r , M a r c h 3 0 , 1912 a n d the 1914 r e p o r t by the judicial advisor, F O 141/583/
9352.
42
See the F o r e i g n Office m i n u t e by C . H u r s t , M a r c h 1 1 , 1916, F O 371/169181/16. T h e
Egyptian g o v e r n m e n t probably feared that an abolition of the capitulations paved the
way for m o v e s t a n t a m o u n t to annexation.

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 40 The rule of law in the Arab world
While British officials deliberated on the status of post-war Egypt, the
Egyptian government, under British control, appointed a commission to
examine capitulatory and mixed-court reform. The commission outlined
its proposals in March 1918, suggesting what William Brunyate (a
leading member of the commission) later termed "a more or less openly
avowed Anglicization of the law and legal institutions of Egypt."43
Capitulatory privileges of foreign powers were to be abandoned; instead
the British would take responsibility for protecting foreign interests in
Egypt. The Mixed Courts and the National Courts were to be unified,
the number of British judges would be greatly increased, English would
become the principal language of the new unified court system, and
British jurisprudence would naturally begin to outrank French in
influence. The Brunyate proposals excited controversy, but British
determination to push forward was clear to all. Egyptian nationalist
leaders, fearing correctly that the proposals amounted to a step just short
of annexation, protested strongly.44
The culmination of decades of far more timorous British proposals,
the Brunyate commission's recommendations seemed likely to be
implemented until the nationalist uprising of 1919. The nationwide
rebellion against the occupation, though eventually suppressed, comple-
tely changed the British outlook on their presence in Egypt. Rather than
increasing their role, the British were forced to consider ways to
guarantee their interests and influence while scaling back their presence.
As part of this effort, Great Britain unilaterally declared Egypt
independent in 1922. While the British did claim continued privileges in
Egypt (including the protection of foreigners and minorities), the
Egyptian government finally found itself far more able to pursue its own
vision of judicial and legal reform.

Courts in independent Egypt, 1922-1937

Egyptian independence did not bring immediate changes to the judicial
system, but it did ultimately undermine the position of the capitulations
and the Mixed Courts and lead to minor structural changes in the
National Courts. The Mixed Courts and the capitulations survived for
some time because the British held out the issues as a bargaining chip.
Britain insisted on retaining the limitations on sovereignty implied in the
43
Brinton, Mixed Courts, pp. 186-87. Brinton's quotation is from Brunyate in a lecture at
Cambridge in 1924.
44
T h e memory of Brunyate's proposals were sufficiently strong that the Foreign Office
kept him out of Egypt for months after the eruption of the 1919 uprising; only in 1920
could a visit be discreetly arranged. See the file on Sir William Brunyate, F O 141/686/
8760.

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 The creation of the Egyptian legal system 41
unilateral declaration of independence and the capitulatory system until
a suitable Anglo-Egyptian treaty was negotiated.45 By 1927, the two
governments had agreed on a section of the treaty requiring Britain to
help Egypt reform the capitulatory regime, making it conform "with the
spirit of the times and with the present state of Egypt."46 In spite of this
agreement on principle, the failure to close negotiations on the treaty as
a whole led the British to withhold any diplomatic assistance in securing
capitulatory reform.
Opposition to both the capitulations and the Mixed Courts grew
markedly in independent Egypt, as those in power often found their
plans and objectives blocked by them.47 Some Egyptian governments
began to make limited forays in the direction of reform even without
British help. In 1926, the Egyptian ambassador in Washington tried but
failed to convince the Secretary of State that the United States should
take the lead by unilaterally renouncing its capitulatory privileges.48 The
following year the Egyptian cabinet put forward a proposal to strengthen
Egyptian participation in the Mixed Courts. The proposals attracted the
attention of Egyptian newspapers, many of which called for modifying or
abolishing the capitulations. The Egyptian government even issued
invitations for an international congress to discuss capitulatory reform,
but eventually dropped the idea.49 By the 1930s calls for unilateral
abrogation of either the capitulations or the Mixed Courts were regularly
heard in the Egyptian press.50
Yet all of these efforts proved futile; few even drew the sustained
attention of the Egyptian government. It was not simply foreign
45
See, for e x a m p l e , Jardine to Secretary of State, D e c e m b e r 2 8 , 1 9 3 1 , U S N A 783.003/44.
I n 1 9 3 5 , J. S. S o m e r s C o c k s , a F o r e i g n Office official, wrote: " E v e r since 1922 o u r
attitude t o w a r d s the Capitulations has b e e n to treat t h e m as a bargaining asset w h e n
negotiating a treaty with E g y p t . " See the m i n u t e i n c l u d e d in F O 371/J852/507/16. Also
q u o t e d by A l e x a n d e r Kitroeff, The Greeks in Egypt 1917-1937 ( L o n d o n : Ithaca Press,
1989), p . 56. F o r a slightly less direct b u t equally frank description of British policy, see
the n o t e b y G . A r t h u r W . B o o t h (then serving in Egypt as judicial advisor), M a r c h 5,
1930, F O 141/650/443.
46
T h e text of t h e drafts is i n c l u d e d in G r e a t Britain, Foreign Office records, Egypt No. 1
(1928). Papers Regarding Negotiations for a Treaty of Alliance with Egypt.
47
See, for e x a m p l e , H u s a y n c Amir, al-Ahram, A u g u s t 9 0 , 1923.
48
M e m o r a n d u m of conversation b e t w e e n Secretary of State Kellogg a n d Egyptian
M i n i s t e r , S a m y Pasha, S e p t e m b e r 2 9 , 1926, U S N A 783.003/4.
49
H o w e l l to Secretary of State, April 7 a n d 2 7 , 1927, a n d W i n t h r o p to Secretary of State,
D e c e m b e r 2 3 , 1927, U S N A 7 8 3 . 0 0 3 / 5 ; B r i n t o n , Mixed Courts, p p . 1 9 1 - 9 2 .
50 c
Aziz K h a n k i , a leading lawyer a n d o n e of the founders of the Bar Association of the
N a t i o n a l C o u r t s , was a particularly strong advocate of unilateral action. His articles are
collected in Al-mahakim al-mukhtalita wa-l-mahakim al-ahliyya ( T h e M i x e d C o u r t s a n d
the N a t i o n a l C o u r t s ) (Cairo: Al-Matabi c al- c Asriyya, 1939). A slightly m o r e m o d e s t
p r o p o s a l t h a t also involved abolition of the M i x e d C o u r t s was advanced by c Abd al- c Aziz
F a h m i , t h e n p r e s i d e n t of the Mahkamat al-Naqd. See the m e m o r a n d u m by the British
judicial advisor, G . A r t h u r W . B o o t h , J u n e 9, 1932, F O 371/J1819/32/16.

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 42 The rule of law in the Arab world
opposition that blocked these attempts to reform the system. Egyptians
did not stand united behind the efforts. In particular the Wafd3
representing the majority of Egyptian nationalists, viewed the question
as premature. The Wafd ruled for only twenty months during Egypt's
first decade of independence, but the pressure it could bring to bear
(and the instability caused by attempts to deny it political power) robbed
the Egyptian government of the political strength to push for reform
during most of the period. The Wafd consistently called for complete
independence for Egypt; certainly it found noxious any restrictions on
Egyptian sovereignty. However, abolition of the capitulations and the
Mixed Courts generally remained a long-term objective.
The more immediate goal of the Wafd was complete independence
from Britain. Here the Wafd followed the same reasoning as had pre-war
Egyptian nationalists. Britain was the immediate adversary; moving
prematurely against the capitulations and the Mixed Courts might
actually undermine Egyptian independence. As long as Britain still
claimed a role in protecting foreigners and minorities, any move
affecting them might strengthen the British rather than the Egyptian
government.51 Thus a premature move against the system might deepen
British penetration of the country.52
Only after the successful negotiation of a treaty in 1936 did the Wafd's
leaders turn to dismantling the capitulations and the Mixed Courts.
Egypt secured Britain's pledge in the treaty to work "to bring about
speedily the abolition of the capitulations in Egypt" and to have the
Mixed Courts take over the work of the consular courts for a transitional
period at the end of which "the Egyptian Government will be free to
dispense with the Mixed Tribunals." An international conference would
be called to negotiate an end to the capitulations and the Courts. An
annex to the treaty also implied British acceptance of unilateral abolition
51
Mahmud cAzmi, al-Ahram, April 24, 1923. For a non-Wafdist version of this view, see
the reply of cAdli's delegation to British proposals in 1921, printed in Great Britain,
Foreign Office records, Egypt No. 4 (1921) Papers Respecting Negotiations with the
Egyptian Delegation, p . 9. See also Sprigg to Secretary of State, March 3 1 , 1921, U S N A
883.00/339.
52
F o r instance, in reply to a question on his views on the Capitulations in a 1923 interview
with the Journal du Caire, Sa c d Zaghlul, the leader of the Wafd, stated: " I t would be
premature to reply to that question . . . I have the hope, if not the certainty, once
independence has been obtained, that it will be easy to discover a basis of agreement
between the capitulatory Powers and ourselves." T h e interview was printed by the
Egyptian Gazette on September 26, 1923. It is included in Howell to Secretary of State,
September 27, 1923, U S N A 883.00/470. In late 1935, only months before assuming
the leadership of a Wafdist government that finally negotiated an Anglo-Egyptian treaty,
Mustafa al-Nahhas announced that he opposed abolition of the capitulations " s o long
as the British retained the privileged situation which they had acquired without right in
the country." Fish to Secretary of State, November 20, 1935, U S N A 783.003/109.

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 The creation of the Egyptian legal system 43
53
should the conference fail. Before the conference met, the Egyptian
government drew up a proposal to eliminate the capitulations, transfer
jurisdiction over criminal cases involving foreigners from consular courts
to the Mixed Courts, and then, after a short transitional period, transfer
all the work of the Mixed Courts to the Egyptian National Courts. The
Egyptian government obtained nearly everything it wanted when the
conference was held in 1937 in Montreux, Switzerland.54 At Montreux,
the Egyptian delegation was aided openly by the British and covertly by
the Americans who were told the Egyptian negotiating position in
advance, allowing them to introduce Egyptian ideas, representing them
as compromise proposals.55

Independence brought few changes in the National Courts. The system

was expanded, with an appeals court established at Asyut in 1926
(following through on a decision made, but never implemented, in
1883). This small step brought problems because the existence of
multiple appeals courts threatened the uniformity and centralization so
central to official Egyptian conceptions of law and judicial affairs.
Accordingly, a higher court was constructed at the apex of the Egyptian
judiciary, the Mahkamat al-Naqd> or Court of Cassation.56 Indepen-
dence gave Egypt legislative autonomy for the first time since the British
occupation, yet a wholesale revision of the codes did not occur for over
two decades (there were some revisions made, particularly in political
53
Brinton, Mixed Courts, p . 194. T h e annex read: " I t is understood that in the event of its
being found impossible to bring into effect the arrangements referred to in Article 2, the
Egyptian G o v e r n m e n t retains its full rights unimpaired with regard to the capitulatory
regime, including the M i x e d T r i b u n a l s . " U S N A 783.003/217.
54
T h e agreement a n d negotiating record are contained in U S N A 783.003 - Montreux.
Almost unnoticed was a provision for the transition period barring the Mixed Courts
from reviewing "acts of sovereignty" by the Egyptian government. A n American judge
o n the M i x e d Courts advising the American delegation did criticize the text, b u t the
Egyptian wording was adopted with little modification. See Judge Brinton, "Brief
c o m m e n t s o n the Egyptian note of February 3 , 1 9 3 7 , " included in Fish to Secretary of
State, February 15, 1937, U S N A 783.003/174. H a d such a position been taken at the
construction of the Courts the nature of the political a n d fiscal crisis of the 1870s a n d
1880s would have been quite different, because the Egyptian government would have
been far m o r e able to rein in the Courts. (Indeed, as will be seen, the doctrine of "acts
of sovereignty" has limited the political effectiveness of courts throughout the Arab
world.)
55
T h e British later thanked the Americans for their "collaboration." See Fish to Secretary
of State, M a y 12, 1937, 783.003/252; a n d R. C . Lindsey, British Ambassador to the
U n i t e d States to Cordell Hull, Secretary of State, June 4, 1937, U S N A 783.003/261.
F o r a recapitulation of the preparations m a d e by the British as well as other parties, see
Wallace to E d e n , June 1 1 , 1937, F O 371/J2750/13/16.
56
F o r an explicit linkage between the existence of multiple appeals courts a n d the need for
a n e w , supreme level, see the speech by the minister of justice on the opening of the
appeals court in Asyut, reprinted in Al-kitab al-dhahabi, vol. I, p . 150.

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 44 The rule of law in the Arab world
crimes, however57). Perhaps most surprising was the small impact of the
introduction of written constitutions to Egyptian political life. The
constitution of 1923 was twice suspended (and once even temporarily
replaced) > and, as will be seen, judicial review was not firmly established
until the late 1940s. As a result, courts wishing to introduce constitu-
tional jurisprudence did not have a strong basis on which to do so.
Thus, the six decades after the establishment of the Mixed Courts
witnessed the construction of a separate National Court system, its
maintenance despite British attempts to modify it, and an agreement on
its assuming general jurisdiction for all criminal and civil disputes arising
on Egyptian territory.

Motivations guiding the course of legal reform

How can the legal reforms of the nineteenth and early twentieth
centuries be best explained? In the remainder of this chapter, we will
consider the usefulness of the three approaches adduced in chapter 1.
Were they impositions of external powers, steps towards the develop-
ment of a liberal order, or elements of a state-building centralization
project?

Imposed law
It is important to note that legal reform was initiated before European
penetration was most acutely felt, and the system constructed was
maintained under some anti-imperialist regimes. The reforms of the
nineteenth century were often more evolutionary rather than revolu-
tionary in nature. There was certainly no sudden break from a system
based largely on Islamic jurisprudence to the Code Napoleon; rather
there was a gradual emergence of a centralized and hierarchical state-
sponsored system. Thus the key periods in legal reform hardly coincide
with the height of imperial penetration. The construction of the Mixed
Courts and the decision to construct the National Courts both predated
the British occupation of 1882; the British were in fact highly critical of
both systems from the beginning. It should therefore be no surprise that
an examination of the attitudes of the British towards courts and law
demonstrates clearly that imperialism did shape legal development in
Egypt but to a much lesser extent than is often assumed.58
57
M u h a m m a d L a b i b c Atiya, " T h e D e v e l o p m e n t of t h e Criminal C o d e in Egypt since t h e
T i m e of the C o n s t r u c t i o n of t h e N a t i o n a l C o u r t s , " Al-kitab al-dhahabi, vol. II, p . 5.
58
F o r m o r e detail, see N a t h a n B r o w n , " L a w a n d Imperialism: Egypt in Comparative
P e r s p e c t i v e , " Law and Society Review, 29 (1), 1995, p . 1 0 3 .

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 The creation of the Egyptian legal system 45
The British occupiers of Egypt never felt comfortable with the
National Court system. It had been established in spite of their
misgivings; John Scott, a former Mixed Court judge and future advisor
to the Egyptian Ministry of Justice, wrote to the British consul-general in
Egypt in 1887, attributing the unsatisfactory operation of the Courts to
the fact that "they have been left to Egyptian supervision more than
other reforms."59 To be sure, the British did successfully infiltrate the
workings of the National Courts as the occupation wore on (indeed,
Scott himself had a major role in that process). Yet even when British
influence in the National Courts was at its height - from the 1890s until
1922 - British actions made clear that they were frustrated by their
inability to exercise greater control.
For instance, the British moved to avoid the National Courts in
matters deemed extremely sensitive. This was particularly true with
offenses involving British military forces in Egypt. Less than four years
after British troops had landed, the British consul-general complained of
"the delay which constantly occurs, in the Native Courts, in dealing
with cases in which natives are charged with offences against British
soldiers."60 The result was the establishment of special tribunals to deal
with such offenses.61 The most notorious of these tribunals sentenced
several residents of the village of Dinshway to hang and several others to
flogging after they had clashed with pigeon-hunting British troops in
1906. Lord Cromer expressed directly and publicly at the time that
extraordinary measures were necessary because reliance on the regular
institutions of justice was sometimes insufficient in a country accus-
tomed, in his eyes, to lawless and despotic government.62 It was this
distrust of the National Court system that led to periodic calls for
Anglicization, including the abortive proposals of the Brunyate commis-
sion.
Even when appointing foreign judges to the National Courts the
Egyptian government made the most of the leeway granted them to limit
British influence. The preference for Belgian and Dutch judges has
already been noted. The Commissions of Brigandage represented a
similar attempt to maintain Egyptian control over matters of law and
justice. Even after the collapse of these efforts, Egyptian lawyers, judges,
prosecutors, and other court personnel frequently frustrated imperial
officials. Allen Christelow, writing on Algeria, notes this phenomenon
about colonialism more generally:
59
Scott to Baring, D e c e m b e r 12, 1887, F O 141/246/597.
60
Baring to Rosebery, M a r c h 2 9 , 1886, F O 141/232/103.
61
M u h a m m a d Jamal al D i n al-Masadi, al-Jumhuriyya, J u n e 19 to 2 7 , 1969.
62
C r o m e r , Modern Egypt, vol. II, p p . 3 2 - 3 3 .

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 46 The rule of law in the Arab world
Colonial administrators tended to see the native lawyer as an unscrupulous
opportunist, out to exploit the gullible, and to sow discord where patriarchal
peace and harmony had prevailed. They were thus inclined to keep as much of
law as possible in the hands of customary sages of the village councils, or in their
own presumably equally sage hands. Custom and administration were to be
allied against the corrosive, divisive effects of the law and lawyers.63
From Algeria to India, imperial officials were as likely to see local
lawyers as their adversaries rather than their tools. Over time, the
lawyers became a bastion of nationalist opposition as well. 64
Yet it was not simply lawyers who were suspect to the British.
Egyptian judges were generally held excessively inclined towards
nationalist sentiment. In 1912, after the alleged attackers of a French
engineer were acquitted in an Egyptian court, Lord Kitchener (then the
British consul-general in Egypt) wrote:
All legal authorities agree that the case was fully and satisfactorily proved against
the two men accused, one of whom had been twice tried for attempted murder
in the last four years; yet they were both acquitted by Egyptian judges. These
judges were known to be Nationalists, and it is naturally considered that race
and religious feeling alone can account for their finding.65
Kitchener's complaint was not unique. Throughout the occupation, the
British expected unfavorable rulings from Egyptian judges whenever
nationalist feelings were involved. Indeed, it was precisely this feeling
that led to the establishment of special courts in politically sensitive cases
such as those discussed above.
In fact, the British frustration with Egyptian courts and law was
directed not only towards lawyers and judges but the population as a
whole. The way Egyptians used the legal system helps makes sense of a
paradox displayed in British (and frequently Egyptian) writings about
Egyptian courts. On the one hand, British officials in Egypt joined their
counterparts in India, Burma, and elsewhere in complaining of the
litigiousness of the local population. 66 Egyptians were far too willing to
bring even the most trivial cases to courts which were slow and
inefficient to begin with. As local disputants flocked to courts (at least in
civil cases), imperial authorities worried that they were aggravating social

63
Allen C . Christelow, Muslim Law Courts and the French Colonial State in Algeria
(Princeton: P r i n c e t o n University Press, 1985), p . 4.
64
See especially F a r h a t Z i a d e h , Lawyers, the Rule of Law, and Liberalism in Modern Egypt
(Palo Alto: Stanford 1968), a n d Reid, Lawyers and Politics.
65
K i t c h e n e r to Grey, J u n e 2 7 , 1912, F O 3 7 1 / 2 7 3 8 8 / 2 7 3 8 8 / 1 6 , n o . 1363.
66
O n I n d i a , see Lloyd R u d o l p h a n d S u s a n n e R u d o l p h , The Modernity of Tradition: Political
Development in India (Chicago: University of Chicago Press, 1967); o n B u r m a see J. S.
Furnivall, Colonial Policy and Practice: A Comparative Study of Burma and Netherlands
India (Cambridge: Cambridge University Press, 1948).

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 The creation of the Egyptian legal system 47
tensions rather than alleviating them. One British document even cited a
lawsuit filed after a guest invited for dinner was not fed by his host. 67
With respect to criminal courts, on the other hand, the Egyptians (as
with other colonized populations) seemed too reticent to cooperate with
the new institutions of criminal justice to allow them to work; when they
did testify officials complained they took perjury very lightly. Crime was
one of the major obsessions of the British occupation, and even those
Egyptian officials most committed to European-style legal reform used
the crime rate to justify extrajudicial methods of apprehending and
punishing suspected criminals (such as the Commissions of Brigan-
dage).
How could the British simultaneously complain that Egyptians went
to court too frequently and that they did not cooperate enough with the
courts? How could Egyptian governments echo the same complaints
before and after independence? Few officials noticed the irony of their
own complaints because the contradiction was more apparent than
real. In civil disputes, Egyptians proved ready to enlist courts when
necessary. By 1920, shortly before the British declared Egypt indepen-
dent, Egyptians were bringing over half a million civil or sharica cases
to court. The inefficiency and frequent postponements associated with
the courts did not always discourage potential litigants; indeed, some
quickly became adept at using delays as part of their strategy of
obtaining a favorable settlement. Involvement in criminal cases,
however, could be much less attractive. Charges were difficult to drop
once they had been filed, giving the aggrieved party less control over
process and outcome. Witnesses to crime often had no incentive to
testify. As a result, considerably less than one-half of serious crimes in
Egypt were even brought to trial. Reflecting on his experience in Egypt,
Cromer wrote:
The protection of the weak against the strong is, however, not the sole function
of justice. It should also be able to protect society against evil-doers. That this
protection has, of late years, been inadequate in Egypt, can scarcely be doubted.
It is easy to indicate the main reason for this state of things. On the one hand,
civilisation insists on the cardinal principle that no man is to be punished for any
offence unless he is clearly proved to have committed it. On the other hand, the
peculiar conditions of Egyptian society render it often a matter of extreme
difficulty to obtain evidence of guilt sufficient to warrant a conviction.68

67
Hazel to G r a h a m , N o v e m b e r 13, 1912, F O 141/583/9352.
68
C r o m e r , Modern Egypt, vol. II, p . 5 2 1 . This attitude is a recurring theme in British
d o c u m e n t s . See, for instance the " M e m o r a n d u m by M r . Machell o n Crime in Egypt,"
contained in C r o m e r ' s annual report for 1905, p p . 115-17, a n d Kershaw to Findley,
September 2 3 , 1906, F O 371/43853/16, file 6 8 .

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 48 The rule of law in the Arab world
Indeed, some British officials held the new legal system responsible for
encouraging crime.69 Egyptians therefore shaped the operation of both
civil and criminal courts - the first by their creative uses and the second
by their creative avoidance.
If the modern Egyptian legal system was established partly indepen-
dently of imperialism and partly to restrict imperial influence, then how
can the largely European content of the codes (and inspiration for court
structure) be explained? Why did Egyptian elites work to build a
European-style legal system if European powers did not always force
them to do so? While some reasons for turning to France had nothing to
do with imperialism (as will be seen), in some other ways use of the
French model could actually be a tool of resisting direct European
penetration. In this limited sense, legal reform could be an indirect
effect of- or more accurately, a preemptive response to - imperialism.
Law constituted the defining difference between European civilization
and the despotism of the rest of the world - such was the view of many
imperialists. Britain and France were governed by the rule of law; Egypt
and the entire Middle East were held to be governed by the will of
capricious rulers. The establishment of structures and procedures that
Europeans could not help but recognize as law might serve to rob
imperialism of its justification. Thus the Mixed Courts were designed
not to serve imperialism but to limit the effects of the capitulations.
After the establishment of the Mixed Courts most Egyptian leaders
seemed to believe that the only way to regain control over (and perhaps
even abolish) them was to build a system as similar as possible in the
National Courts. The discussions of the cabinet on this point are quite
clear: the code and structure for the National Courts were established
precisely to make amalgamation possible.70
As the occupation wore on the goal of amalgamation receded. Yet the
French system and the Mixed Courts both began to have a different
attraction - they obstructed British attempts to assert control over the
system and thus helped keep some measure of official power in Egyptian
hands. Insisting on following non-British models allowed Egyptian
lawyers and judges to follow a path independent of their occupiers. The
preference for Belgian judges has already been mentioned, as has
Brunyate's proposals to rein in Egyptian autonomy by Anglicizing the
legal system. And the continued survival of the Mixed Courts kept an
important segment of the legal system out of British hands.

69
See, for instance, Findley t o Grey, July 7, 1906, F O 371/24014/16; also Baring
( C r o m e r ) t o Salisbury, January 3 , 1890, F O 141/276/4.
70
T h o s e discussions are c o n t a i n e d in Al-kitab al-dhahabi, vol. I.

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 The creation of the Egyptian legal system 49

Legal reform and liberal legality

If the legal reforms of the late nineteenth and early twentieth centuries
cannot be seen as an external imposition, can they be portrayed instead
as the beginning of the rule of law in Egypt? The reforms certainly did
move in the direction of liberal legality: the judiciary was separated from
administration (and given some degree of independence as well), and
the law was made more fixed and predictable with the introduction of
new codes. Property rights were more securely guaranteed in both the
Mixed Courts and the National Courts, and citizens could freely resort
to the courts without restriction in civil cases; punishment without trial
was greatly diminished. And the institutionalization of liberal legality
continued: four decades after the foundation of the National Courts the
authors of Egypt's first effective constitution guaranteed equality before
the law and judicial independence.
In fact, a specific kind of liberalism did inform the legal reform efforts
of the period. The liberal legality of the Egyptian leadership was genuine
but was an integral part of the effort to build a stronger, more centralized
state; it was also indigenous, restricted in what it could achieve by the
British imperial presence. A strong consensus emerged among the
Egyptian political leadership during the last quarter of the nineteenth
century supporting the establishment of an independent judiciary,
checks on executive authority, and stable property rights. A brief
historical review of how these three goals emerged and guided Egyptian
judicial development helps clarify the meaning of (and limitations to)
liberal legality in Egypt.
First, judicial independence was both genuine but circumscribed in
practice. The desire to build an independent judiciary was evident in the
first Mixed Court proposals in the 1860s.71 When discussion of the
National Courts began they were similarly predicated on the assumption
of the necessity to construct an independent judiciary for Egyptians as
well as foreigners. Judicial independence clearly meant that adminis-
trative and judicial functions would no longer be combined and that a
professionalized judiciary would be developed or imported from Europe.
The combination of administrative and judicial functions was seen as
inefficient and encouraging official abuses.
Yet the precise relationship of the new judges to top political officials
71
It is interesting to note in this regard that Nubar, one of the leading architects of the
Mixed Courts (and judicial reform in general) is often not well regarded in Egyptian
nationalist historiography because of his close connection with European powers.
However, his role in establishing judicial independence leads Egyptian judges to view
him in a far more favorable light. See, for instance, Sacid al-Jamal, "The Rule of Law
and the Independence of the Judiciary," al-Wafd, March 27, 1990.

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 50 The rule of law in the Arab world
was sometimes ambiguous. In the Mixed Courts there was no question
that judges were independent of the Egyptian government. Technically
appointed by the Khedive, foreign powers successfully asserted a claim
to specific seats on the Mixed Courts bench and to a strong role in
selecting judges. Moreover, there is considerable archival evidence to
suggest that judges considered themselves representatives of their home
governments and not of the Egyptian government and Egyptian
interests. Many served informally as legal advisors to diplomats from
their home country.72 And Mixed Court judges had a limited authority
to approve the application of Egyptian laws and regulations to
foreigners.
The independence of the National Court judges from top political
officials was more limited. The head of the niyaba, a judicial position,
was a highly politicized post from the beginning, with the Egyptian
government striving (and ultimately failing) to keep it in Egyptian hands.
Positions on the bench could be politicized as well. After 1891 the
strong role of a committee headed by the British judicial advisor in
appointments and promotions has already been mentioned. This
committee established a measure of British political control over the
National Courts; it also put in place an institutional mechanism for
Egyptian governments to use upon independence. After 1923, it was
frequently charged that partisan loyalties more than judicial qualifica-
tions determined appointments.73 Ironically British officials frequently
noted and deplored irregularities in appointments, oblivious that their
predecessors had established the system precisely to enforce political
oversight of the judiciary.74 In 1936, a transition government created a
new body, the Supreme Judicial Council, headed by the minister of
justice but with strong judicial representation. The Council was to make
recommendations on promotions and transfers to the cabinet, in essence
72
T o cite o n e e x a m p l e , Jasper B r i n t o n , an A m e r i c a n judge, advised the A m e r i c a n
delegation t o t h e M o n t r e u x conference o n t h e capitulations a n d the M i x e d C o u r t s .
73
F o r examples of s u c h charges of politicization, see Lloyd to C h a m b e r l a i n , July 2, 1928,
F O 371/J2024/2024/16, H o a r e to M u r r a y , S e p t e m b e r 2, 1930, F O 371/J3076/4/16, a n d
L o r a i n e to H e n d e r s o n , M a y 13, 1 9 3 1 , F O 371/J1676, 1676/16.
74
M o s t ironic in this regard is t h e activity of J. F . K e r s h a w d u r i n g the trial of those
accused in t h e 1924 assassination of L e e Stack, the c o m m a n d e r of the Egyptian army
a n d t h e governor-general of S u d a n . K e r s h a w served simultaneously as a judge a n d as
the acting legal advisor to t h e British H i g h C o m m i s s i o n e r . W h e n m o s t of those accused
were acquitted, K e r s h a w , in violation of Egyptian judicial practice, m a d e public his
dissent a n d resigned from t h e Egyptian judiciary in protest at the verdict after the British
cabinet g u a r a n t e e d h e w o u l d n o t suffer financially. Earlier h e h a d r e c o m m e n d e d that a n
Egyptian colleague w h o sat o n t h e case with h i m receive an h o n o r a r y decoration from
the British b e c a u s e of his helpful attitude. See H e n d e r s o n to C h a m b e r l a i n , J u n e 2 0 ,
1925, F O 371/J1817/90/16, a n d Lloyd t o C h a m b e r l a i n , J u n e 8, 1926, F O 371/J1691/
215/16.

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 The creation of the Egyptian legal system 51
reversing the 1891 decision to give executive officials predominance.75
As will be seen in the next two chapters, judicial appointment and
promotion have been at the center of controversy over judicial
independence in Egypt up to the present.
Second, judicial checks on executive action, though a goal in the
abstract, similarly operated in an ambiguous and controversial matter.
Once again, matters were clearer in the Mixed Courts, where the
Egyptian government quickly found that judges were quite bold in
reversing government decisions, and an early attempt by Isma'il to
ignore a court ruling was aborted by his deposition. In fact, the Mixed
Courts, by guarding the capitulations so jealously, restricted both
executive and legislative authority - the latter by agreeing only to
recognize laws that had drawn the assent of the capitulatory powers (a
process requiring protracted diplomacy) or the judges of the Courts
themselves (in minor matters).
The National Courts never acted as boldly as the Mixed Courts in
confronting the Egyptian government, but the clear intention of their
architects was to have them review administrative acts by officials. Some
unsuccessfully proposed requiring government permission before a
lawsuit could be filed against administrative officials; others preferred to
establish a special administrative court for such suits. Despite strong
sentiment for the latter (in order to strengthen the ability of the judiciary
to reverse administrative actions), the cabinet finally approved a proposal
to allow administrative lawsuits to fall within the jurisdiction of the
National Courts. If an official was acting within his official capacity, the
state would be liable for damages; if the official was acting on his own
then he would be personally liable.76
The National Courts quickly established their willingness to take
official abuse seriously by acquitting those whom they suspected were
tortured by the police or by other officials (including provincial
governors). It was this attitude which helped justify the establishment of
the Commissions of Brigandage. But it was not simply the Egyptian
government that was frustrated by the fastidious manner of judges in
cases where torture was alleged. As British officials increased their
control over matters of law enforcement they complained that the guilty
were often set free because of "a tendency to adhere too strictly to the
methods which obtain in countries where legal procedure is in a more
75
Salim, Al-nizam al-qadaH, vol. II, p . 299. O n judicial independence more generally see
p p . 2 9 2 - 3 1 1 . It is possible that the 1936 measure was taken in anticipation of the return
of the Wafd, which on previous occasions h a d moved to promote pro-Wafd judges that
it charged h a d been passed over by non-Wafd governments.
76
F o r coverage of the debate, see al-Ahram, January 24, January 3 1 , February 1, February
2, a n d February 5, 1883.

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 52 The rule of law in the Arab world
advanced state than in Egypt." 77 An extrajudicial system of adminis-
trative surveillance and internal exile was therefore constructed to insure
that disreputable characters could be apprehended. Compiling a list of
those subject to control based on their reputations was solely an
administrative task. Since witnesses were reluctant to testify and
confessions obtained under torture were not recognized by the courts,
the British helped to establish a tradition - still observed in Egypt today
- of special procedures to deal with those whom officials were convinced
were guilty but judges might not convict.
Third, legal reform was also motivated by a desire to define and
guarantee property rights. But this effort was an integral part of, rather
than antithetical to, the effort to build a more effective state apparatus.
An emerging and increasingly influential class of landowners was
particularly interested in making ownership of their agricultural property
as secure as possible. That class had an interest in insuring that
transactions involving land be recognized, organized, and enforced by
the state. A state that simply deferred to local custom and structures
offered fewer benefits. Cuno writes that prior to the land laws of the
mid-nineteenth century
the law courts had no supervisory role in peasant land tenure. Their role was
passive: a dispute over land could be settled outside the courts as well as within
them, and a land transaction could be made and witnessed without the use of a
document or its registration in court. Many simple peasants continued to
conduct their affairs in the customary way, using verbal agreement, especially
when it came to renting land - in the 1960s the government was still trying to
curtail this practice. Yet official refusal to recognize transactions unless they were
made according to the new procedures would naturally favor the interests of the
notables, merchants, Levantine traders, and others who understood how the
rules worked and wished to acquire land.78
While Cuno shows that landowners were hardly responsible for the legal
changes of the mid-nineteenth century, those changes, combined with
the continued acquisition of land by high officials, insured that by the
last quarter of the nineteenth century rural notables and large land-
owners had become politically powerful, particularly in the creation of
the new legal order. 79
Yet the new legal order was not simply a creation of self-interested
property owners. High officials, while often property owners themselves,
had other motives in constructing a legal system that protected property:
while state prerogatives might be slightly limited as a result, the overall
77
Baring (Cromer) to Salisbury, May 20, 1890, F O 141/277A/165.
78
Cuno, Pasha's Peasants, p. 203.
79
This is a consistent theme in Cannon, Politics of Law.

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 The creation of the Egyptian legal system 53
result would be a stronger state and more prosperous economy. Nubar
was generally explicit on this front. In 1881, at a time when the Mixed
Courts had exacerbated a protracted political crisis and the National
Courts had yet to be established, he wrote that without a sound legal
system it would be impossible to effect administrative reform or attract
investment. The Mixed Courts had been able to attract foreign
investment and had aided Egyptian progress, even if capitulatory powers
had successfully transformed the Courts into an international rather
than Egyptian system. To complete the work begun with the construc-
tion of the Mixed Courts, a single, unified system of justice would have
to be built, enforcing a single law code (though Nubar seemed to be
willing to employ foreign judges and have some courts designated for
mixed cases). Only then would Egyptians have the same confidence as
foreigners in investing their money in productive enterprises. Nubar was
only slightly more guarded in expressing the claim that unlimited
khedival autocracy would make the development of a sophisticated and
complex bureaucracy impossible.80
In the late nineteenth century the property generally at issue was
agricultural land or loans secured by agricultural land. In the twentieth
century Egyptian business interests emerged and began to constitute a
new source of pressure for legal reform. The particular targets of their
resentment was the Mixed Courts and the capitulations, and they sought
to abolish both. Even the exclusively Egyptian group that founded Bank
Misr in 1920 (outside the jurisdiction of the Mixed Courts), had neither
the ability nor the desire to avoid foreign investment, technology, and
business dealings.81 If they were to deal with foreigners in any way, their
Egyptian nationality provided no escape from the capitulations and the
Courts. They thus found the system a problem for two reasons. First,
Egyptian business leaders who did not have foreign nationality felt that
the system of the capitulations and the Mixed Courts placed foreigners
in an advantageous position.82 More precisely, their complaint was that
the capitulations barred discrimination against foreigners and that the
Mixed Courts tended to interpret "discrimination" fairly broadly. The
Courts and the capitulations thus prevented the Egyptian government
80
T h e letter by N u b a r is p r i n t e d in Makhluf, Nubar basha, p p . 1 2 3 - 3 5 .
81
F o r the rise of the Egyptian bourgeoisie, see T i g n o r , State, Public Enterprise, and
Economic Change in Egypt 1918-1952 (Princeton: P r i n c e t o n University Press, 1984);
Eric Davis, Challenging Colonialism: Bank Misr and Egyptian Industrialization, 1920-1941
(Princeton: Princeton University Press, 1983); Robert Vitalis, "On the Theory and
Practice of Compradors: The Role of cAbbud Pasha in the Egyptian Political
E c o n o m y , " International Journal of Middle East Studies, 22 (2), 1990; a n d R o b e r t Vitalis,
When Capitalists Collide (Berkeley: University of California Press, 1995).
82
See, for e x a m p l e , the n o t e b y E. G. P a y n e , acting judicial adviser, A u g u s t 4, 1936, F O
371/J6964/190/16; a n d the article by M u h a m m a d As c ad, al-Ahram, January 15, 1937.

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 54 The rule of law in the Arab world
from implementing the policies that business interests wanted, such as
tariffs and preferential employment. 83
The second reason Egyptian business groups and pro-business
politicians resented the capitulations and the Mixed Courts was that
they required international consent before foreigners could be taxed
directly. 84 So long as the capitulations remained, and so long as the
Mixed Courts enforced them, Egypt could not raise the tax revenue
necessary to fund many of the programs desired by pro-business
politicians. An income tax was out of the question; a protective tariff was
enacted only with difficulty; even a tax on matches provoked a
diplomatic dispute between Egypt and the capitulatory powers. 85 Any
attempt to launch projects to develop infrastructure or to subsidize
Egyptian industrialization would founder without Egyptian fiscal
autonomy. Ismacil Sidqi, the political leader most publicly identified
with business interests, argued this as early as 1926 in a speech to the
Bar Association of the Mixed Courts. Perhaps with unintended irony,
Sidqi was able to quote three British imperialists from the era when
Britain resented the capitulations - Lord Cromer, Sir William Brunyate,
and Viscount Milner - in support of his position. 86
Thus the struggle to end the capitulations and the Mixed Courts was
partly a struggle by Egyptian business leaders to secure a state able to
protect their interests. Defense and protection of property rights were
tasks only a strong state could undertake. The argument can be made
much more generally: in Egypt and the Arab world as a whole, from the
nineteenth century until the rise of Arab socialism, the relationship
between state and market has been far more symbiotic than antagonistic.
Strong states secure property and investment and are able to pursue
effective economic policies; market transactions are generally easier to
regulate and tax and are thus fiscally vital.
This sort of liberalism, while influential, was also restricted in its
implications. An independent judiciary, checks on executive authority,
83
T h e Egyptians claimed that tariffs were limited n o t by the capitulations b u t by the 1906
C u s t o m s C o n v e n t i o n with Italy (and with other countries u n d e r M o s t Favored N a t i o n
treaties). W h e n the C o n v e n t i o n expired in 1930, therefore, the Egyptian g o v e r n m e n t
resolved to enact a m o r e protective tariff. T h e capitulatory powers complained, and a
c o m p r o m i s e was negotiated. T h e c o m p r o m i s e helped establish a p r e c e d e n t for Egyptian
a u t o n o m y in the m a t t e r of tariffs. See " M e m o r a n d u m Regarding the Egyptian C u s t o m s
Tariff a n d C u s t o m s Regulations (Reglement Douanier)" D e c e m b e r 12, 1936, U S N A
783.003/140.
84
O n this p o i n t generally, see B o o t h to H i g h C o m m i s s i o n e r , D e c e m b e r 7, 1935, F O 3 7 1 /
J3066/190/16.
85
See the m e m o r a n d u m by Charles W . Yost, t h e n A m e r i c a n Vice-Consul in Cairo, " T h e
T a x a t i o n of Foreigners in E g y p t , " J u n e 6, 1 9 3 1 , U S N A 7 8 3 . 0 0 3 / 3 7 .
86
Egyptian Gazette) M a r c h 3 0 , 1926, contained in Howell to Secretary of State, April 3 ,
1926, USNA 783.003/3.

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 The creation of the Egyptian legal system 55
and stable property rights all had distinctive meanings; none implied a
general egalitarian or democratic spirit. To be sure5 demands for legal
equality were often made by Egyptian writers and political leaders, but
the inequality targeted involved nationality far more than class. 87
Decrying foreign privileges did not always lead to calls for equal
treatment among Egyptians. Capitulatory privileges for foreigners
rankled many; when Nubar complained about inequality in the 1881
letter mentioned above, he referred to the differing legal status of
foreigners and Egyptians.
This is not to say that there was open opposition to legal equality
among Egyptians. Distinctions between ruler and ruled were sometimes
held to be irrelevant in the application of the law; occasionally a writer
might even mention rich and poor. But there was a far more common
(though not always explicit) theme in many contemporary writings that
equated social equality in Egyptian society with disorder. Timothy
Mitchell deals with one work written in such a vein that has been
subsequently misinterpreted:
The Tale of ha ibn Hisham, as the book was called, was described by later writers
as the most important work of imaginative literature of its generation. It was very
widely read. An expurgated version was later used by the Ministry of Education,
as a text in all government secondary schools. It has been interpreted as a work
of social criticism that expresses the liberalism which emerged in the political
thought of the period. The term liberalism tends to be misleading. The donkey
driver's statement about an age of liberty has been cited to illustrate a major
theme of the book, that Egyptians must be taught the principle of equality before
the law. But these words come from the mouth of an insolent peasant. The
concern of the book is not with equality of rights but with social chaos, a chaos
suddenly visible in the indiscipline of the city's streets where the peasant behaves
as an equal of the Pasha. Indiscipline is not usually considered a central concern
of liberal thought, but rather than abandoning the label of liberalism I would
prefer to use these writings from Egypt to understand liberalism in its colonial
context. Egyptian liberalism spoke about justice and equal rights; but these
concerns were contained within a wider problematic. Rights could only be
enjoyed within a society of obedient and industrious individuals, and it was these
characteristics, as we have seen, that Egyptians now suddenly seemed to lack.88
The concern was not unique to the book in question, nor was it a
product of the British occupation: over one year prior to the occupation
a horrified writer in al-Ahram was provoked to discuss his conception of
the true meaning of freedom after a youth had responded to his

87
See, for e x a m p l e , the conclusion of the article o n the N a t i o n a l C o u r t s in al-Ahram3 5
February, 1883.
88
T i m o t h y Mitchell, Colonising Egypt (Cambridge: Cambridge University Press, 1988),
pp.115-16.

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 56 The rule of law in the Arab world
reprimand with the retort that in the nineteenth century people were free
to do as they pleased. 89
Some pushed the matter even further, arguing that true justice
required a sort of inequality. In 1889, a writer in the Cairo daily al-
Muqattam turned the argument for legal equality on its head by
complaining that when rich and poor were given the same punishment
for the same offense the result was unequal - the rich suffer far more
from imprisonment than the poor, for instance. As a further example,
the author cited the case of a blind man who insulted the wife of a
minister. He was given the same sentence as he would have received had
his victim been a trash collector - even though the impudence he
displayed might have led him to murder a person of low social
standing. 90 In a sense, the Akhtat Courts established in the early
twentieth century were based on a similar view. Notables were charged
with issuing judgments in small and simple disputes; their social position
and prestige were seen to be guarantees of fairness and judicial
temperament. And when the Akhtat Courts were abolished, the move
was justified by the claim that less influential people had managed to
obtain judicial appointments, decreasing the quality of the courts and
discouraging people of substance and honor from serving.91
The fear of the consequences of equality generally extended to a
skeptical view of democracy until the growth of a broad-based nationalist
movement in the early twentieth century. Indeed, given the current
near-equation of rule of law with democracy (in both Egypt and the
United States) the absence of demands for democratic government in
late nineteenth-century Egypt is striking. Political participation by
notables was sought by some, but a broader popular role in selecting
leaders was not part of the agenda of those who built Egypt's legal
structures. 92 As will be more fully explored in subsequent chapters,
liberal legality may be a necessary condition for sustaining democracy
but it is hardly a sufficient condition.

Centralization and state building

Given this conception of liberal legality, it should no longer seem
paradoxical to claim that the architects of Egypt's legal system were
motivated by a desire to build a liberal order and a strong state

89
Al-Ahram, F e b r u a r y 12, 1 8 8 1 .
90
"Revision of Egyptian L a w , " al-Muqattam, M a r c h 9, 1889.
91
G h u r b a l , "Statistics o n the N a t i o n a l C o u r t s , " Al-kitab al-dhahabi, vol. II, p p . 2 3 9 - 4 0 .
92
F o r a discussion of N u b a r ' s thinking o n this question, see H u n t e r , Egypt under the
Khedives, p p . 1 7 1 - 7 3 .

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 The creation of the Egyptian legal system 57
simultaneously. Those who argue that legal reform in the Middle East
has been a tool of state building and centralization will find much
support and little surprising in the Egyptian experience.
Perhaps the strongest evidence in this regard are the areas in which
legal reform generated little or no controversy among the Egyptian
political elite. In the first three-quarters of the nineteenth century, the
institution of a hierarchical, state-administered, and centralized judicial
system drew no visible opposition. While Ottoman authorities and local
leaders in eighteenth-century Egypt had not left judicial and legal
matters alone, the various systems employed in the nineteenth century
had represented a dramatic increase in the state's role in judicial affairs.
In the last quarter of the nineteenth century, of the three innovations in
legal reform - a professionalized and independent judiciary, codified
law, and a turn towards European rather than Islamic and Ottoman
sources - only the last drew any debate. In the contemporary discussions
in the press and the cabinet discussed above regarding the construction
of the National Courts, the need for a professionalized, independent
judiciary was taken for granted. The only question raised was where
appropriate personnel could best be found. (It is true that local officials
and the police did drag their heels in cooperating with the new
structures, but this expressed itself almost exclusively in a rivalry with
the niyaba rather than the judiciary. In fact, traces of the rivalry between
the niyaba and the police continue to this day.93) Similarly, the need for
a comprehensive law code to replace the earlier reliance on a mixture of
local legislation, custom, Islamic law, and judicial volition, drew little
comment. Only the sources for the code (in particular its relationship
with Islamic law) provoked muted controversy.
Indeed, it is possible in this context to make fuller sense of the
decision to turn to French law as the primary source for the Egyptian
codes. French sources were favored not simply because they were
European but also because of their attractiveness to ambitious and
centralizing state elites. What attracted such elites was not the Western
nature of the legal systems they constructed but the increased control,
centralization, and penetration they offered. It is instructive in this
regard that Egypt was not alone among Middle Eastern states generally
which turned to civil law - most often French - models. Civil law
systems were adopted even by non-Arab states, including both Iran and
93
With regard to the attitude of local officials to the new structures, it is notable that daily
newspapers regularly recorded cases in which they were disciplined for failing to notify
their superiors or the niyaba immediately after a crime had occurred. The rivalry
between the police and the niyaba now has little to do with the former not accepting the
latter but with educational and class differences.

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 58 The rule of law in the Arab world
the Ottoman Empire. The French system, unlike the British, offered a
unified law code and a nation-wide hierarchy of courts to enforce it.
While rulers may not have been able to influence individual decisions by
courts, they would have tremendous influence over how courts would
approach disputes submitted to them - much more influence than
Islamic law courts, customary courts, or a common law system would
have offered. Indeed, in one important way a civil law system has more
to offer central authorities than any alternative. Because judges are to
rely on codified law rather than judicial precedent, the role of case law is
fairly weak. Judicial interpretation is discouraged (and sometimes denied
even when it obviously occurs). This amounts to a strong positivist bias
which often makes civil law courts less willing and able to develop a
strong outlook that challenges executive and legislative authorities. To
be sure, government organs, when subject to the courts, can lose
individual cases, but even when they do each individual who is affected
by a decision must sue separately. (Not until the establishment of an
administrative court system in the mid-twentieth century did the
Egyptian judiciary successfully assert the right to strike down or cancel
laws and regulations; prior to that point each aggrieved individual would
have to file a separate suit.) Thus, the point of turning to French models
was hardly to repudiate Islam; it was to have codified law and
hierarchical courts operating under the supervision of a centralizing
94
state.
A system based on sharica courts was therefore particularly inap-
propriate for several reasons. While not immutable, the sharica tended to
evolve sometimes according to a logic quite different from that of the
rulers. The paucity of clear, authoritative texts led to a widespread image
of an incomplete shari'a that allowed judges to rule arbitrarily. Leading
Egyptians, including many whose piety could not be doubted, shared a
common belief with many colonial officials that the sharica in its present
form was unsuitable for a modern state. This feeling was general
throughout the Ottoman Empire. 95 The shari'a was not abandoned, but
it was restricted to matters of personal status and to areas where it could
be clearly and easily codified.
Indeed, the only serious alternative proposed to a French-inspired law
code was one which made a greater effort to draw on Islamic sources
94
James Rosberg, writing on the period since the 1960s, explores the uses of an
independent judiciary for top leadership, focusing on the role that they can play in
providing information o n the actions of subordinates. See Roads to the Rule of Law: The
Emergence of an Independent Judiciary in Contemporary Egyptt Ph.D. dissertation,
D e p a r t m e n t of Political Science, Massachusetts Institute of Technology, 1995.
95
Brinkley Messick, The Calligraphic State: Textual Domination and History in a Muslim
Society (Berkeley: University of California Press, 1993), pp. 54-68.

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 The creation of the Egyptian legal system 59
within a codified framework. The attempt to draw on the shari'a as part
of codification, begun in the Ottoman Empire, was continued in Egypt
by two of the most influential individuals associated with the develop-
ment of law codes - Muhammad Qadri in the nineteenth century and
c
Abd al-Razzaq al-Sanhuri in the twentieth. Yet Qadri's law codes were
not adopted and, while al-Sanhuri specifically sought to draw on Islamic
jurisprudence in his codifying work, he did so in ways (for example,
selecting doctrine from various schools of law and seeking to reconcile
the shari'a with modern sensibilities) that many Islamic jurists would
probably have found overly eclectic at best and incoherent at worst.96
What the proponents of legal reform sought, then, was a system
consistent with (and occasionally even derived from) principles of the
sharica but not a wholly sharica-based system. As noted earlier, what is
most striking about the gap between the new codes and the sharica is
that however much some (especially radical Islamicists) may view it as
unbridgeable, at the time it provoked limited public discussion.
Codifying law, even if it meant considerable borrowing from the law of
non-Muslim states, was not seen as undermining the sharica; if anything
it strengthened Islamic law through clarifying it.
Further evidence of the state-building project of the architects of the
modern Egyptian legal system is the nature of their liberalism. As
discussed above, the liberal legality current in Egypt in the late
nineteenth and early twentieth centuries hardly involved a minimalist
state. Where there was a clear conflict between their distinctive brand of
liberal legality and the goal of state building - most vividly illustrated in
the construction of the Commissions of Brigandage (but also in their
later tolerance for extrajudicial suppression of crime) - Egypt's leaders
generally preferred the latter.
After Egypt's independence in 1922, the Egyptian government
exercised full autonomy in legal matters involving Egyptian citizens for
the first time since the 1880s. It is therefore instructive to note that the
Egyptian government first exercised this autonomy to increase the statist
and centralized nature of the system. Egypt's codes were amended to
introduce new kinds of political crimes, including those which were
aimed at the king and the political system.97 In structure, the major
change was the creation of a new appeals court and a court of cassation,
again justified in the name of uniformity and hierarchy.

96
See A b d al-Razzaq al-Sanhuri, " O n W h a t Basis Will the Egyptian Civil C o d e be
I m p r o v e d , " Al-kitab al-dhahabi, vol. II, a n d " O u r Legal D u t y after the T r e a t y " , al-
Ahram, J a n u a r y 1, 1937. Also of interest is E n i d Hill, " A l - S a n h u r i a n d Islamic L a w , "
Cairo Papers in Social Science 10 (1), 1987.
97
See c Atiya, " D e v e l o p m e n t of the C r i m i n a l C o d e . "

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 60 The rule of law in the Arab world
While the courts were to serve the purposes of strengthening the state,
they do not seem to have been designed to legitimate it. To be sure,
there is every reason to believe that Egypt's leaders viewed the legal
system they were building as fair and just, but there was little attention
to how the system would be perceived by the majority of the Egyptian
population. The system was criticized (generally by the British but
occasionally by Egyptian writers) for instilling insufficient fear and
therefore for allowing criminal activity to continue, but there is no
evidence that the system was intended to render the political, social, or
economic order legitimate or inevitable.

In attempting to explain the construction of the modern Egyptian legal

system, there are stark differences in the helpfulness of the three
approaches. The idea of imposed law does underscore the importance of
the international context, but is an inadequate and sometimes mis-
leading approach when applied to Egypt. Imperialism and European
penetration certainly shaped the development of the legal system, and
the Mixed Courts would not have existed without them. European
power and influence also increased the attractiveness of the French law
code. Yet even the Mixed Courts were not imposed on Egypt and in fact
are better seen as an attempt to contain European influence generally
(and at times British influence specifically). Finally, the interest in
codified law was domestically generated, and even the attractiveness of
the French code had domestic aspects.
The legal system can be seen as an attempt to foster liberal legality in
Egypt, but the liberalism of the Egyptian leadership involved regulating
state authority to make it more effective (and the economy more
productive). Far more prominent in providing the rationale and
motivation for the construction of the legal system was a statist outlook
and political project.
Courts and law were to render state domination of Egyptian society
more effective and efficient. The first half-century of this project took
place within the confines of imperialism. After the Montreux conference
of 1937, Egypt finally became fully independent in all judicial and legal
matters. How did the new generation of Egyptian leaders view, use, and
modify the system that they inherited?

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