Muhammad Abduh by Mark Sedgwick

Author:Mark Sedgwick
Format: epub
Publisher: Perseus Books, LLC

THE NATIONAL COURTS

Egypt had three parallel judicial systems. The oldest of these was the Sharia Court system, which had existed from time immemorial, applying Islamic law and staffed by ulema. The second system, of so-called Judicial Councils, had been established in 1848 to apply administrative regulations and to act as special criminal courts, and was staffed by government officials. The third system was the Mixed Court system, established in 1875 to apply a civil code on the French model, and staffed partly by European and partly by Egyptian judges. The Mixed Courts had jurisdiction over all cases involving Europeans, even if only one party to a dispute was a European. In 1882, the Judicial Council system was replaced by a system of National Courts, and this was the system in which Muhammad Abduh was appointed a judge. The National Courts were intended to apply modern codes similar to those used by the Mixed Courts, and took over much of the jurisdiction of the Sharia Courts, which were left only family and inheritance law, and made subordinate to the Ministry of Justice. The National Courts – as they were called in Arabic – were at the time known in English as the Native Courts.

It seems a little strange that Muhammad Abduh, who had no legal experience whatsoever, should be appointed a judge. However, the main difficulty faced by the National Courts in their early years was a lack of suitably trained personnel. A Khedival Law School had been set up in 1873, but in the absence of adequate funding had failed to develop. By 1880 it employed several language teachers, but only two teachers of law, of whom only one taught the French-style system that was applied in the National Courts. Thus, in the words of one historian of these courts, “a practical savoir-faire, not university diplomas, remained the most important qualification” at least until 1890, when examinations for lawyers practicing in the National Courts were introduced. Many established advocates failed these examinations. When this happened, some argued that the previous system had actually been better – judges and lawyers who might not know much law, but who did know the realities and customs of the Egyptian people, were preferable to those who knew the new laws, but were out of touch with realities. A similar argument about the importance of the appropriateness of laws to actual conditions had been made by Muhammad Abduh in Al-Waqa’i al-misriyya shortly before the Urabi Revolt.

Muhammad Abduh certainly knew the realities of life in the Egyptian countryside. He had, after all, grown up in a village in the Delta. Three quarters of the disputes that came before him in Banha were between relatives, which somewhat dismayed him, but gave plenty of scope for the application of “practical savoir-faire.” He is reported to have “applied the law with an independence of judgment in interpretation and a freedom from subservient regard for legal forms that led sometimes to criticisms from the more literally minded.”Despite this, his conduct

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