Islamic Law and Civil Code: The Law of Property in Egypt

By Richard A. Debs, Frank E. Vogel and Ridwan Al-Sayyid

Richard A. Debs follows the modern development of law in Egypt, a predominantly Islamic society in which the West has defined the terms of progress in the modern era. Debs focuses specifically on Egypt and its modern legal institutions, which draw upon society's own vigorous legal traditions as it forms its modern law. Yet Debs also touches on issues that are common to all such societies that have adopted, either by choice or by necessity, Western legal systems.

Egypt's unique synthesis of Western and traditional elements is the outcome of an effort to respond to national goals and requirements. Egypt's traditional law is the Shari'ah, the fundamental law of all Islamic societies, and through his analysis of Egypt's law of property, he shows how Islamic jurisprudence can be sophisticated, coherent, rational, and effective, developed over centuries to serve the needs of societies that have flourished under the rule of law.

• Language: English
• Publisher: Columbia University Press
• Release date: Jul 9, 2010
• ISBN: 9780231520997

Book preview

ISLAMIC LAW AND CIVIL CODE

ISLAMIC LAW

AND CIVIL CODE

THE LAW OF PROPERTY IN EGYPT

RICHARD A. DEBS

FOREWORDS BY FRANK E. VOGEL AND RIDWAN AL-SAYYID

Columbia University Press

Publishers Since 1893

New York Chichester, West Sussex

cup.columbia.edu

Copyright © 2010 Columbia University Press

All rights reserved

E-ISBN 978-0-231-52099-7

Library of Congress Cataloging-in-Publication Data

Debs, Richard A.

Islamic law and civil code : the law of property in Egypt / Richard A. Debs.

p. cm.

Includes bibliographical references and index.

ISBN 978-0-231-15044-6 (cloth : alk. paper)—ISBN 978-0-231-52099-7 (ebook) 1. Property—Egypt. 2. Property (Islamic law)—Egypt. 3. Property (Islamic law).

I. Title.

A Columbia University Press E-book.

CUP would be pleased to hear about your reading experience with this e-book at [e-mail].

References to Internet Web sites ( URLs ) were accurate at the time of writing. Neither the authors nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

CONTENTS

Foreword by Frank E. Vogel

Foreword by Ridwan Al-Sayyid

Preface

Acknowledgments

Transliterations and Abbreviations

Introduction

1    THE CLASSICAL ISLAMIC LAW OF PROPERTY

The Classification of Lands in the Shariʿah

ʿUshri Lands

Kharaji Lands

State Lands: The Private Domain

Mawat Lands

Public Lands and Servitudes

Waqfs

Land Tenure and Property Rights

Private Property: Mulk Land

ENJOYMENT OF THE RIGHT OF OWNERSHIP

ACQUISITION AND DISPOSITION OF THE RIGHT OF OWNERSHIP

Waqf Lands

Holdings of State-Owned Lands

Later Development of the Islamic System of Tenure in Egypt

2    TRADITIONAL ISLAMIC LAW IN THE MODERN ERA

The System of Land Tenure Created by Muhammad Ali

Kharaji Lands

Masmuh Lands

Rizqah Lands

Abʿadiyah Lands

Usiyah Lands

The Traditional System of Land Tenure Prior to the Civil Codes

State Lands

Mulk Lands: Private Property

Waqf Lands

3    THE INTRODUCTION OF A WESTERN CIVIL CODE SYSTEM

Ottoman Sovereignty and the Capitulations

Tribunals of the Reform: The Mixed Court System

Mixed Courts

Consular Courts

Native Courts

Mahkamahs

Millah Courts

The Civil Codes

4    PROPERTY LAW UNDER THE FIRST CIVIL CODES

State Lands

Kharaji Lands

Mawat Lands

The Public Domain

The Private Domain

Waqf Lands

Waqf Law in the Civil Courts

The Law of Waqf

State Administration of Waqfs

Private Property

The Right of Ownership

OWNERSHIP AND OTHER REAL RIGHTS

ENJOYMENT OF THE RIGHT OF OWNERSHIP

The Transfer of Ownership Rights

INHERITANCE AND TESTAMENT

GIFTS

ACCESSION

APPROPRIATION

PRESCRIPTION

PREEMPTION

AGREEMENTS AND CONTRACTS

5    THE DEVELOPMENT OF A NATIONAL LEGAL SYSTEM

Unity of Jurisdiction

The Civil Courts

The Administrative Courts

The Courts of Personal Status

Law Reform

The Shariʿah Law of Personal Status

The Law of Waqf

The Civil Law

6    PROPERTY LAW UNDER THE CIVIL CODE OF 1949

Rules of Property Law in the Civil Code

Private Property

The Principal Real Rights

The Right of Ownership

The Transfer of Ownership Rights

INHERITANCE

TESTAMENTARY DISPOSITIONS

ACCESSION

APPROPRIATION

PRESCRIPTION

PREEMPTION

CONTRACT

PLEDGE AND MORTGAGE

State Lands

Waqfs

Developments Under the Revolutionary Government

Notes

Appendix

Bibliography

Index

FOREWORD

FRANK E. VOGEL

RICHARD DEBS COMPLETED THIS STUDY nearly fifty years ago, as his doctoral dissertation, but had no time then to see it into print. This has been unfortunate for us in the fields of Islamic and Middle Eastern legal studies, since, if better known, his study would have served these fields well. It offers a precise, detailed account of the transition of a crucial body of law—that of landed property—from late Ottoman jurisprudence to modern, Western-style code, from the reign of Muhammad Ali to the regime of Gamal Abdel Nasser. It would have been useful if over the last five decades more scholars in the fields of Islamic law, Arab law, and the modern history of the Middle East had drawn on the knowledge and insight this dissertation affords into Ottoman and Egyptian property law, the legal reforms of the Tanzimat era, and the law, economy, politics, and society of modern Egypt.

Despite the passage of years, no study I am aware of renders Dr. Debs’s work obsolete or even significantly overlaps with it. Working directly from a tangled and obscure primary record, it painstakingly uncovers the complex web of Islamic, Ottoman, Egyptian, customary, and European laws that have made up the Land Law of Egypt, tracing this law through the various stages of its transformation. Even the mechanisms used for the various transformations are spelled out. But the book’s concerns extend far beyond the purely doctrinal since its most fundamental preoccupation is to link developments in doctrine with social and political causes and consequences. Any scholar whose work is affected by the Land Law of Egypt during these periods will benefit from having this book close at hand.

That the work remains both unique and useful is, of course, the primary reason why it should be published even today, so long after it was researched and written. But this very fact suggests a secondary reason to publish it: that the methods Dr. Debs employed in his study are rarely to be found today but still deserve emulation. Several methodological virtues in the study particularly stand out.

First, the work does not take as its starting point an assumption of stark rupture between anything Islamic and anything modern or Western—even though to do so was the norm when Dr. Debs was writing. This habit of thought and analysis echoes in the book only nominally—in its use of the now anachronistic-sounding term traditional for Islamic laws and legal practices, even contemporaneous ones. But in every other respect the book stands out for its willingness to examine laws and legal practices factually and contextually, erecting no artificial divides. It spells out, without distortion or imbalance, the gradual, halting, and partial way in which some—but not all—Ottoman legal institutions ceded some—but not all—ground to legal institutions originating in Europe, and it captures the mélange that results. This approach required Dr. Debs to spend much time and energy researching intricate details of the transition that long ago vanished from view. Many of us would have avoided this effort by the simplifying assumption of clear rupture between Islamic and modern.

A second virtue in the book is that it does not understand Islamic property law as a rigid body of doctrine (fiqh) fixed in treatises of the classical Islamic legal era. It portrays it instead as the complex contemporaneous project of the Ottoman legal system. Adopting a point of view then rare and remaining so since, it understands Ottoman-era law as a working, commonsense composite of state law (qanun) and Islamic religious law (fiqh), both under the banner of the Shariʿah, issued and administered by a complex state bureaucracy combining the skills and outlooks of both officials and religious-legal scholars.

A third methodological virtue is that this is a work not only of social and political history but also, and fundamentally, of law. Too few historians of the Muslim world, or even of Islamic law, have been legally trained or have used legal techniques and talents to good effect. The result is that too many significant historical episodes, even those carried out by specifically legal means (of which the Tanzimat-era reforms are telling examples), lack portrayals that capture this basic dimension.

For all these many reasons we can applaud the publication of Richard Debs’s study purely as a scholarly event. But it also serves as a moment to celebrate Dr. Debs’s lifelong support of education in and about the Middle East. His service for the American University of Beirut is legendary. He served on the university’s Board of Trustees since 1976, eleven years as its chairman, recently stepping down to become chairman of its International Advisory Council. He is an Advisory Board member of Columbia University’s Middle East Institute, and, as a loyal alumnus of Harvard Law School, his annual gifts since 1983 have funded the acquisition of much of the Law School’s collection on Islamic law.

It is a great pleasure and honor to be present, through the medium of this foreword, on the occasion of the publication of this work, too long delayed. I look forward to observing how Dr. Debs’s study will benefit and influence the study of the legal history of the Middle East and Muslim world in the future.

Cambridge, Massachusetts

FOREWORD

RIDWAN AL-SAYID

WHEN I FIRST RECEIVED DR. DEBS’S THESIS a while ago, it was to judge the feasibility of its being published over fifty years after its completion. Having read it inquisitively, I concluded that not only was it suitable for publication but that it remains, especially in its second and most important part, on classical Islamic law, a fine piece of scholarship.

The work is rightly considered to be a study of the modern state of Egypt and other countries of the Middle East. Of special significance are those very developments and reforms that had occurred in Egypt, simply because Egypt, when compared to other countries, enjoyed a bigger margin of independence from the Ottomans and also because Egypt happened to host the first innovations in the Arabian milieu. As evidenced from the title of the thesis, Islamic Law and Civil Code, Dr. Debs aimed at analyzing the net of relations that existed between Islamic Law of Jurisprudence and Civil Law. That is why he allocated one whole chapter to discussing matters such as the waqf law, as well as the cases where the Egyptian civil jurists benefited from the principles of Muslim jurisprudence, thus expounding the existing legal and juristic system and all the changes affecting it, in addition to the various Civil Laws covering personal status (eventually this was the only sphere where the Islamic law, the Shariʿah, continued to be totally applicable).

Although the work ends practically by a discussion of the various systems of ownership evidenced in the Civil Code of 1949, Dr. Debs provides a chapter that studies the period after the July 1952 revolution.

The thesis of Dr. Debs remains, after these many years, a work that is genuinely academic and thought-provoking. It shall continue to throw much light before all researchers in social and economic history in the Islamic sphere. This work, therefore, has obviously merited publishing and of course deserves our due respect and appreciation.

Beirut, Lebanon

PREFACE

THERE HAS BEEN NO SIGNIFICANT CHANGE to the basic Egyptian law of property since I wrote this thesis, and, of course, classical Islamic law remains the same. However, significant changes have occurred in the development and perceptions of Islamic law since then.

At the time this thesis was written, there was little interest in, or knowledge of, Islamic law in the West. Since then, however, there has been great change. The interest in Islamic law has sharpened and broadened exponentially. But the knowledge, unfortunately, has not. References to Islamic law or the Shariʿah are often derogatory and often associated with extremism and violence. The Shariʿah is often seen as primitive and uncivilized.

The study of classical Islamic law as set forth in this thesis demonstrates implicitly that Islamic jurisprudence is sophisticated, coherent, rational, and effective, developed over the centuries to serve the needs of its societies—societies that flourished under the rule of law. At the time the thesis was written, Egypt was already a pioneer in achieving a synthesis of traditional Islamic law and modern, Western legal systems. Most other nations with Muslim populations had not taken that path. Some had continued to use the Shariʿah as the fundamental corpus of law; others had adopted Western legal systems. There was little attempt to synthesize Islamic legal concepts with Western rules of law. This, too, has changed.

The first sentence of this thesis states, This book is intended as a case study in legal development. As it turns out, Egypt indeed has been a case study that has been studied by other countries in the Muslim world. All of them have moved in the same direction as Egypt did, with varying degrees of progress, but with this basic objective of seeking to modernize their legal systems in order to be more effective in the smaller global world of today and yet seeking also to maintain the roots of their traditional systems of law.

When I wrote my dissertation, very few people in the West had heard of Islamic finance. Here too, the change has been significant and very relevant to global finance today. Islamic finance is a prime example of how a synthesis of Islamic and Western law can meet the needs and demands of global commerce as well as those of traditional Islamic finance. In this case, indeed, the Islamic legal concepts are the predominate ones in the development of the institutions. The process of reconciling these two sets of laws has been similar to the Egyptian experience in adapting the Civil Code to Islamic concepts of contracts in property law. A notable aspect of this development is that the rules governing Islamic finance today are utilized internationally and recognized in most jurisdictions globally. Today, virtually every major bank all over the world has a division of Islamic finance, and billions of dollars are loaned and borrowed and invested according to rules derived from the traditional Shariʿah and integrated into Western legal systems.

Richard A. Debs

New York City

ACKNOWLEDGMENTS

THIS STUDY IS THE DIRECT RESULT of a research project conducted in 1958 and 1959 in London and Cairo under fellowships granted by the Harvard Law School and Princeton University. The basic graduate training that preceded this project was carried out at Princeton University under a Ford Foundation Fellowship grant for 1953–1955, which provided for a program of studies in the Department of Oriental Studies and the Woodrow Wilson School of Public and International Affairs. The final writing and completion of this study was made possible during my employment at the Federal Reserve Bank of New York by a leave of absence granted under the bank’s Program for Advanced Education of Personnel. To all of these institutions, I am deeply indebted. Needless to say, none of these institutions, by virtue of their financial assistance, should be regarded as responsible for any of the views expressed in this study.

Of the many individuals to whom I am indebted for their assistance in the undertaking and pursuit of this study, I should particularly like to thank Prof. Milton Katz of Harvard Law School and Prof. T. Cuyler Young of Princeton University, whose interest in this project was essential to its undertaking; Prof. J. N. D. Anderson of the University of London, whose generous help and hospitality greatly facilitated my studies in England; and Judge Jasper Brinton, Prof. Bayard Dodge, Sir Hamilton A. R. Gibb, and Dean Alan Horton, all of whom gave me invaluable advice and assistance in the planning and implementation of this project in Egypt. I am also deeply indebted to those members of the Egyptian bar who, with infinite patience, assisted me in so many ways in my research for this study, particularly Dr. ʿAbd-al-Razzaq al-Sanhuri, Shaykh Muhammad Abu Zahrah, Prof. Shafiq Shihatah, Prof. Sulayman Murqus, Prof. Yusuf Musa, and, in great measure, Mtre. Sami Fahmy. My thanks are also due to Prof. Saba Habachy and Dr. J. O. Ronall for their help in this study, and to Prof. Farhat Ziadeh, my principal reader and faculty advisor, for his. I should also like to express my appreciation for the cooperation and assistance I received from the members and staffs of the School of Oriental and African Studies and the Institute of Advanced Legal Studies in London, and, in Cairo, the Société d’Economie Politique et Jurisprudence, the International Law Society, the Egyptian Bar Association, the Faculty of Law of Cairo University, and the American University in Cairo. The advice and assistance I received from these individuals does not, of course, impute to them any responsibility for the views expressed in this study.

I also want to express my appreciation for the encouragement and assistance I received in preparing for the publication of this book after so many years. In particular, I am most grateful to Farouk Jabre of the American University of Beirut; Professor Frank Vogel, founding director of the Harvard Islamic Legal Studies Program; Professor Ridwan Al-Sayyid of the Lebanese University; Professor Rashid Khalidi, former director of the Middle East Institute at Columbia University; David Arnold, president of the American University in Cairo; and especially my wife, Dr. Barbara Knowles Debs, who kept me and the process moving to completion.

TRANSLITERATIONS AND ABBREVIATIONS

Transliterations of Arabic and Turkish terms appearing in the text and notes were based on standard methods of transliteration only to the extent that such methods could be reproduced on ordinary typewriters when this dissertation was written in the early 1960s; the appendix contains accurate transliterations of these terms.

Abbreviations employed for certain periodicals are listed in the Bibliography: Periodicals. In addition, abbreviations have been employed for certain Egyptian statutes cited in the text and notes:

INTRODUCTION

THIS BOOK IS INTENDED AS A CASE STUDY in legal development. It is a study of the modern development of law in a non-Western society in which the course of progress in the modern era has been defined in Western terms. In this respect, it touches upon some of the problems common to all such societies that have adopted, by choice or by necessity, Western legal systems. Further, it is a study of modern legal institutions in a society that has a vigorous legal tradition of its own and that has attempted to draw upon that tradition in the formulation of its modern law. In this respect, it is a study of transition from traditional to modern law and a study of the extent to which traditional law has been incorporated into the legal institutions of a developing modern nation.

In particular, it focuses upon the development of one nation’s modern law as a synthesis of both Western and traditional elements integrated to produce a national law based on national goals and responding to national requirements. That nation is Egypt, a modern, developing nation with a strong Islamic tradition; its traditional law is the Shariʿah, the fundamental law of all Islamic societies; and the particular corpus of law focused upon in this study is the law of property as applied to interests in land.

In many respects, the example of Egypt’s legal development may be related to many other traditional societies that have undergone or are presently undergoing the transition into modern national states. Egypt’s example, however, is of special relevance for other countries of the Middle East with Islamic histories. Egypt was one of the first Islamic nations to embark upon a course of Westernization, and it was the first of those nations to experience the direct and immediate impact of an entire system of Western Civil Law superimposed on its indigenous legal institutions. Furthermore, following the adoption of that system, there existed in Egypt until the late 1950s a special judicial system of internationally staffed Mixed Courts, whose contributions to modern Egyptian law have been most substantial. As a result of these and other factors, modern legal development in Egypt began earlier, has progressed at a more rapid rate, and has probably been of higher quality than that of other countries in the area. This has been recognized by most of those countries, and Egypt is an acknowledged leader in the field of law, whose legal experience is constantly drawn upon by its Middle Eastern neighbors.

The status of the Egyptian legal system as a standard with which to compare other systems of the area is further enhanced by what may be described as a compromise position in legal development, between two polar extremes. On the one hand, there is a strong tendency in some countries with an Islamic history to define their course of legal development primarily in Western terms, adopting Western legal institutions, and generally rejecting their traditional Islamic legal sources. This has been the prevailing tendency in modern Turkey, which has adopted Western legal institutions virtually unmodified and on a widespread scale. On the other hand, other Islamic countries look to their traditional legal sources for solutions to all of their contemporary problems, accepting Western legal experience in exceptional cases only. Saudi Arabia perhaps most clearly exemplifies this position. Similar extremes of opinion coexist in virtually all countries of the area, but in most, including Egypt, a middle course has been followed. The modern legislation of these countries includes both foreign and traditional elements, integrated, more or less successfully, into a national legal system. What distinguishes the Egyptian experience is that it has involved a conscious and articulate effort to achieve a synthesis of both elements, an effort clearly reflecting a compromise of a wide range of conflicting opinions concerning the course of modern legal development.

As Egypt affords a useful standard with which to compare legal development in other Islamic countries, so the law of real property affords a valuable standard of comparison in connection with the development of traditional Islamic law and modern Civil Law in the Middle East. As compared to Commercial Law, for example, property law