Islamic Law and Civil Code: The Law of Property in Egypt 9780231520997

Citation preview

I slam ic L aw

and

C iv i l C ode

I slamic Law and C ivil C ode 67 t h e l aw o f p ro p e rt y i n e g y p t

67 r ichard a. d ebs

67

f o r e w o r d s by f r a n k e . vo g e l a n d r i d wa n a l- s ay y i d

columbia university press new york

Columbia University Press Publishers Since 1893 New York  Chichester, West Sussex Copyright © 2010 Columbia University Press All rights reserved 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. KRM640.D43 2010 346.6204—dc22  2009049736

Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

C ontents

Foreword by Frank E. Vogel  ix Foreword by Ridwan Al-Sayyid  xiii Preface  xv Acknowledgments  xvii Transliterations and Abbreviations  xix

67 Introduction  1 1 T he C lassical I slamic L aw

of

P roperty   7

The Classification of Lands in the Shariʿah  8 ʿUshri Lands  9 Kharaji Lands  11 State Lands: The Private Domain  13 Mawat Lands  14 Public Lands and Servitudes  15 Waqfs  16 Land Tenure and Property Rights  17 Private Property: Mulk Land  18 enjoyment of the right of ownership  

18

acquisition and disposition of the right of ownership  

20

vi   Contents

Waqf Lands  25 Holdings of State-Owned Lands  30 Later Development of the Islamic System of Tenure in Egypt  34

67 2 T raditional I slamic L aw

in the

M odern E ra   37

The System of Land Tenure Created by Muhammad Ali  38 Kharaji Lands  40 Masmuh Lands  44 Rizqah Lands  45 Abʿadiyah Lands  46 Usiyah Lands  47 The Traditional System of Land Tenure Prior to the Civil Codes  49 State Lands  49 Mulk Lands: Private Property  52 Waqf Lands  53

67 3 T he I ntroduction of a W estern C ivil C ode S ystem   56 Ottoman Sovereignty and the Capitulations  57 Tribunals of the Reform: The Mixed Court System  60 Mixed Courts  61 Consular Courts  63 Native Courts  64 Mahkamahs  66 Millah Courts  69 The Civil Codes  69

Contents  vii

67 4 P roperty L aw U nder

the

F irst C ivil C odes   72

State Lands  73 Kharaji Lands  73 Mawat Lands  76 The Public Domain  77 The Private Domain  79 Waqf Lands  80 Waqf Law in the Civil Courts  80 The Law of Waqf  82 State Administration of Waqfs  84 Private Property  85 The Right of Ownership  86 ownership and other real rights  

86 87

enjoyment of the right of ownership  

The Transfer of Ownership Rights  90 inheritance and testament  

90

agreements and contracts  

94

gifts  

90 accession   91 appropriation   91 prescription   92 preemption   93

67 5 T he D evelopment

of a

N ational L egal S ystem   98

Unity of Jurisdiction  99

viii   Contents

The Civil Courts  100 The Administrative Courts  102 The Courts of Personal Status  104 Law Reform  106 The Shariʿah Law of Personal Status  107 The Law of Waqf  109 The Civil Law  111

67 6 P roperty L aw U nder

the

C ivil C ode

of

1949  116

Rules of Property Law in the Civil Code  118 Private Property  120 The Principal Real Rights  120 The Right of Ownership  122 The Transfer of Ownership Rights  126 inheritance  

127

testamentary dispositions  

127 128 appropriation   128 prescription   129 preemption   130 contract   132 pledge and mortgage   135 accession  

State Lands  136 Waqfs  137 Developments Under the Revolutionary Government  140 Notes  145 Appendix  161 Bibliography  163 Index  181

F oreword frank e . vogel

r i c h a r d d e b s c o m p l e t e d t h i s s t u d y 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

   Foreword by Frank E.Vogel

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.

Foreword by Frank E. Vogel  xi

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

F oreword ridwan al - sayyid

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

xiv   Foreword by Ridwan Al-Sayyid

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

P reface

t h e r e h a s b e e n n o s i g n i f i c a n t c h a n g e 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

xvi   Preface

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

A cknowledgments

t h i s s t u d y i s t h e d i r e c t r e s u lt 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

xviii   Acknowledgments

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 alSanhuri, 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.

T ransliterations

and

A bbreviations

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: CC Civil Code of 1949 MC Mixed Civil Code (1875) MO Law on the organization of the Mixed Courts (1875) (Règlement d’organisation judiciaire . . . procès mixtes) NC Native Civil Code (1883) NO Law on the organization of the Native Courts (1883) (Décret portant réorganisation des Tribunaux indigènes)

I slam ic L aw

and

C iv i l C ode

I ntroduction

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.

this book is intended as a case study

   Introduction

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 syn-

Introduction  

thesis 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 has not been as immediately responsive to foreign influences, but has retained its national character even in the presence of such influences in other areas of the law or in the society as a whole. To a great extent, this was due to foreigners normally not being as involved in property holdings as they were in commerce and trade. On the other hand, the rules of property law have been much more receptive to change than the laws relating to personal status, such as the laws on marriage or on inheritance. Those laws, primarily because of their religious content, have resisted modification by foreign influence or from any other source throughout Islamic history. In these respects, the historical development of the law of property serves as a useful index to the course of general legal development in Islamic areas. Moreover, Land Law in the Middle East is of fundamental importance in and of itself. Because of the relative scarcity of arable land in the desert economies of most Middle Eastern countries, such land has always been regarded in that area as one of the most valuable resources and has constituted, until the mid-twentieth century, the major source of personal wealth and the principal channel of capital investment. The law governing the disposition of this resource has thus always been of critical importance in the economy of Middle Eastern nations. The ultimate focal point of this study is the Civil Code of 1949, which contains the basic rules of modern Egyptian property law. The Civil Code is the product of a modern history of legal development commencing with the establishment of a Civil Code system in Egypt in the late nineteenth century. That system was essentially a Western system, superimposed on traditional Islamic legal institutions as they existed in the nineteenth century and, to a large extent, superseding those institutions. In many cases, however, those traditional

   Introduction

institutions continued to retain their vigor and have remained an integral part of the Egyptian legal system. In view of this background to modern property law, the approach undertaken in this study is based on an examination of the traditional Islamic legal institutions as they existed in the nineteenth century prior to the adoption of a Western Civil Code system and of the manner in which and the extent to which those institutions have been incorporated into the law of modern Egypt. Following this approach, the first chapter contains a general outline of the classical Islamic law of property, as contained in the Shariʿah sources, and of the basic system of land tenure established under that law. This outline is followed in chapter 2 by a description of the traditional system of land tenure as it existed in Egypt in the nineteenth century prior to the adoption of the first Civil Codes. Chapter 3 sketches the general history of Egypt in the nineteenth century, the beginning of which marked the advent of the West in that country, and traces the developments that led to the introduction of a Western-derived Civil Code system toward the end of that century. The property law of Egypt and the system of land tenure as it existed under the Civil Code system is then analyzed in chapter 4. Chapter 5 contains a survey of legal development in Egypt during the twentieth century under the first Civil Codes and the culmination of that development in the Civil Code of 1949, the fundamental Civil Law in Egypt. An analysis of the Civil Code rules of property law, which constitute the legal basis of the present system of Egyptian land tenure, is contained in chapter 6. With respect to the classical Islamic law of property, an attempt is made to present a survey of that law within a general theoretical framework that may be useful as a basis for comparison with modern Egyptian law. There are, obviously, definitional problems connected with any discussion of “classical” Islamic law, since that law in fact developed over a period of centuries. Nevertheless, for the general purposes of this study, such problems do not require special consideration. The Shariʿah sources referred to in this study are primarily those generally recognized as being among the earliest authoritative works for their respective schools; in addition, later Shariʿah sources, also recognized authorities, have been referred to where necessary for an interpretation or elaboration of the earlier works.

Introduction  

The Shariʿah sources employed have included authorities in the Hanafi, Shafiʿi, and Maliki schools of law, three of the four major schools or jurisdictions of Islamic law, all three of which have played significant roles in the legal history of Egypt. However, primary emphasis has been placed on the law of the Hanafi school: doctrines or rules of the other two schools are referred to for purposes of comparison where they differ from the Hanafi law in significant respects. The Hanafi school of law has been considered the most important for the purposes of this study because it was the only officially recognized school of law in Egypt during most of the modern era. The problems arising from the frequent dichotomy between legal theory and practice in Islamic history are recognized, but no attempt is made here to cover the various customary usages and practices existing throughout the Islamic world during different periods of Islamic history. The discussion of Islamic law is limited to an analysis of the law as contained in the Shariʿah texts, except that reference is made to the actual land tenure system of the Mamluks and the Ottomans, the fundamental system of landholding in Egypt at the beginning of the nineteenth century. In this connection, it is one of the theses of this study that the apparent dichotomy between theory and practice, at least with respect to property law, was often more apparent than real: although the most important forms of land tenure during most of Islamic history were not governed by the Shariʿah, they were nevertheless governed by laws that in most cases were not inconsistent with the Shariʿah. Those laws, sometimes described as the administrative or Kanun law of the state, actually supplemented the Shariʿah and in this respect may be regarded as an integral part, along with the Shariʿah, of what may be described as traditional Islamic law. Because of its importance for modern law, the traditional Islamic system of land tenure existing in the nineteenth century is treated here in some detail. In this connection, it must be noted that no systematic attempt has been made to distinguish the various forms in which rules of law were promulgated by the central government during the nineteenth century. That is, no distinctions are made between laws, statutes, decrees, orders, ordinances, or administrative rules and regulations: all are treated here as laws, having identical or similar legal effects except where otherwise designated. In another respect, all

   Introduction

such laws may be regarded as part of the administrative (Kanun) law of the state, as distinguished from the Shariʿah, the fundamental law—or, in a sense, the constitutional law—of the Islamic community. After the adoption of a Civil Law system and the delimitation of the legal powers of the central government, the different legal effects of laws, decrees, or regulations could be distinguished with more precision, although such distinctions are generally not significant for the purposes of this study. With the establishment of a constitutional and parliamentary form of government in Egypt, law in general emanated from the Parliament or from the executive in accordance with the constitution. In this respect, the constitution and the legislative enactments of the state constituted the basic law of the land, a law that generally superseded the Shariʿah, but that also incorporated many elements derived from that traditional law.

67 1

T he C lassical I slamic L aw of P roperty

in the Shariʿah. The rules constituting the Islamic law of property are contained in the law of contracts, in the various rules relating to the acquisition of property, in the tax and revenue laws, in the laws of conquest and of the division of spoils, and in many other rules of law covering a variety of subjects and dispersed throughout the legal texts. Nowhere were the property rights vesting in the owners or possessors of land systematically treated or classified; where land classifications were made, they were not made on the basis of property rights and did not clearly distinguish the different kinds of property interests attaching to landholdings or the different forms of land tenure existing under Islamic law. Nevertheless, the Shariʿah rules of property law, taken together, clearly reveal three basic and distinct forms of land tenure: holdings of private property held in full ownership; holdings of waqf lands, being holdings in the nature of mortmain; and holdings of state-owned properties, held as different kinds of estates in land and subject to different conditions of tenure. Private property clearly existed in Islamic law: indeed, the right of full ownership was the basic right, the norm, in Islamic property law. The enjoyment of private property was thus based on and governed

t h e r e i s n o g e n e r a l t h e o r y o f p r o p e r t y l aw

  The Classical Islamic Law of Property

by the Shariʿah. Property interests in waqf land were also defined and governed by the Shariʿah and constituted, both in theory and in practice, an estate in land clearly distinguishable from a holding of private property. The third form of land tenure, however, comprising holdings of state-owned land, was generally not defined or governed by the Shariʿah, but was, in effect, regulated by the administrative law of the state; yet this form of land tenure has been historically the most important in the Islamic world.

T he C lassification

of

L ands

in the

S hari ʿ ah

In the theoretical analysis of the subject of property in the early Islamic law books, not only was the distinction between personalty and realty a relatively unimportant analytical factor, but so were distinctions between the various forms of land tenure and between the property rights attaching to such tenure. In dealing with land, the early Islamic jurists appear to have been concerned primarily with fiscal considerations and therefore classified land on the basis of the revenues due from it to the state. Thus, almost all land in the possession of private individuals was classified either as ʿushri or kharaji land, depending on whether the land was charged with an ʿushr or kharaj, the two basic types of land taxes. Another category of lands explicitly recognized by the jurists comprised uncultivated wastelands that were not in the possession or ownership of any party. These were known as mawat, or dead lands, and the jurists prescribed rules providing for their vivification and consequent acquisition by individuals either as ʿushri lands or as kharaji lands. Other categories of land were recognized by the jurists, but were not treated so systematically. These included lands that were in the direct control and ownership of the state and that may be described, for convenience only, as the private property or private domain of the state. It was not until recent centuries that these lands were explicitly recognized on a theoretical basis as a separate and distinct category of real property. In addition to the private domain, there were certain kinds of public property rights recognized by the jurists that in modern terms might be described as comprising the public domain. These

The Classical Islamic Law of Property  

were not treated as a separate category of land or property rights, but they will be so considered here, again, for convenience only. Finally, there existed under the Shariʿah a distinct form of land tenure that, however, was not primarily regarded as such by the early jurists. This was the waqf, or mortmain, or trust of real property. Since the act of creating a waqf was considered a disposition of property, and a disposition ostensibly for religious purposes, the jurists focused upon the act of disposition rather than the form of land tenure created by such an act. Nevertheless, this form of tenure was implicitly recognized by the law and in fact constituted one of the major forms of real property holding in the Islamic world.

ʿUshri Lands The ʿushr, literally, is a tithe: it is a religious tax, one of many such taxes incumbent upon Muslims, specifically applicable to land. The original ʿushri land of the Shariʿah was, accordingly, land owned by Muslims, who were bound to pay a tax on it as part of their general obligations with respect to almsgiving.1 The classification of lands as ʿushri in the law books depended upon their status when they were first brought under the jurisdiction of Islam. In general, if such land belonged to a Muslim at the time of his conversion, or if it was distributed to a Muslim soldier as his share of the spoils of war, the land was deemed to be ʿushri. Since the general policy in the early years of Islamic military operations within the Arabian Peninsula was to consider the enemy’s conversion to Islam as the only alternative to war, and since any such wars ultimately resulted in a Muslim victory and the subsequent distribution of land to Muslim soldiers, virtually all of the land in Arabia became ʿushri land, in the possession of Muslims.2 With the emergence of the Muslim armies from the confines of the Arabian Peninsula into the vast cultivated areas of the Fertile Crescent and Egypt, the earlier military policy of the Islamic state was modified, and the enemy was given a third alternative: if he agreed to accept Muslim sovereignty peacefully, he could retain possession of his land without converting to Islam. His retention of possession was subject

10  The Classical Islamic Law of Property

to various conditions (either imposed by the Muslims or negotiated under the terms of a treaty), which included the rendering of periodic payments to the Islamic state. Furthermore, even if the enemy had to be subjected by force, the state could, and usually did, leave the indigenous population on its land, subject to whatever conditions it imposed, including payments to the state. These payments made by nonMuslims left in the possession of their lands could be characterized as tribute, as rent, or as a tax. In time they came to be uniformly known as the kharaj, levied and paid as a land tax; the lands upon which this tax was levied were thus designated kharaji lands.3 In these respects, kharaji lands were clearly distinguishable from ʿushri lands, which were charged with a tax (normally much lower than the kharaj) based in theory on a religious obligation and therefore incumbent upon Muslims only. Thus, ʿushri land was regarded as the normal landholding within the Muslim community, while kharaji lands were a somewhat special category of lands left in the possession of nonMuslims and subject to various conditions relating to their possession. With respect to the nature of the property interest vesting in a holder of ʿushri land, that interest was described as milkiyah, or full ownership, and the land itself was described as the mulk, or the private property, of the landowner. Thus, the property interest in ʿushri land was comparable to the Common Law fee simple, the Roman plenum dominium, or the French propriété. While such a characterization of these property interests as private property has not been a matter of universal agreement,4 it appears quite clearly that ʿushri lands were mulk lands, and that mulk property, whether personalty or realty, was what is known as private property in modern terms. Aside from the theoretical definition of milkiyah, the nature of the property rights vesting in the owners of mulk property can lead to no other conclusion. These property rights will be treated in detail below, but to summarize here their nature and extent, the Shariʿah provided, basically, that an owner of mulk property could physically use or enjoy it to the fullest extent consistent with the public interest; furthermore, he could dispose of his property by means of a full range of legal dispositions, including sale, exchange, gift, lease, loan, pledge, and testament. Most important, he could constitute his property in waqf, which is a conclusive test of full ownership rights, since the creation

The Classical Islamic Law of Property  11

of a waqf irrevocably immobilizes the property interest in perpetuity, making it forever inalienable. Such a power, which could be exercised in the sole discretion of the mulk owner, is clearly inconsistent with any theory holding that the mulk owner did not have complete rights of ownership in his property or that his property was subject to any other property rights but his own. On this basis, it is clear that mulk property was held in full ownership and that the rights of the mulk owner were of the same nature as (and perhaps, considering his powers of waqf, even more extensive than) the rights of a private property owner under modern, Western law. Although all ʿushri lands were mulk property and held in full ownership, the right of milkiyah was not confined to ʿushri lands. Personal property was normally held as mulk, and, more significant, some types of kharaji lands were also held in this form of private property.

Kharaji Lands According to the Shariʿah, there were two basic categories of kharaji lands: the first comprised lands in areas brought under Muslim sovereignty peacefully, pursuant to treaties or agreements with their inhabitants that permitted the original occupants of such lands to retain their possession. The second comprised those lands conquered by force of arms and left in the possession of their former inhabitants subject to conditions imposed by the state.5 With respect to property rights vesting in the non-Muslim occupants of kharaji lands, there is general agreement among the major schools of law that the occupants of the first category of lands held full ownership rights: the lands in their possession were mulk lands.6 As regards the second category of kharaji lands, however, there is some disagreement. The Hanafis maintained that all kharaji lands, including the lands conquered by force of arms, were mulk lands. In their view, the rights of all kharaji holders were the rights of owners; kharaji holders had full rights of disposition over their land, including the power to constitute it in waqf.7 The Maliki and Shafiʿi schools, on the other hand, did not regard the second category of kharaji holdings as mulk property. Rather, they described it as land held in “waqf” for the benefit

12  The Classical Islamic Law of Property

of the Muslim community.8 In this context, however, such a description did not have the technical meaning usually ascribed to the term waqf, but connoted instead a relationship between the state and the Muslim community as a whole, wherein the state administered these lands as trustee, as it were, on behalf of the community. Furthermore, in so characterizing this relationship in terms of waqf, the two schools did not differ greatly from the Hanafi school, which also spoke of the “waqf” or immobilization of kharaji lands for the benefit of the Muslim community, even though it was clear that the Hanafis considered all kharaji land to be private property.9 What was meant by such language was that the revenue from these lands was permanently appropriated to the benefit of the Muslim community as a whole; aside from this, it implied no relationship to the Islamic institution of waqf as a form of land tenure.10 In terms of the property rights of the individual occupants of this second category of kharaji lands, however, there was a crucial difference between the Hanafi theory, on the one hand, and the Maliki and Shafiʿi theories, on the other. The latter schools did not deem the holders of such land to be vested with full rights of ownership and, accordingly, did not permit such holders full powers of disposition over their lands. Ownership was vested in the state, in its capacity as trustee for the Muslim community, and the property interest of the kharaji holder was regarded as in the nature of a leasehold or usufructuary interest: the kharaj itself was sometimes described as a payment of rent to the state. Yet it is also apparent that the relationship between the state and the kharaji landholder was not the ordinary one of landlord and tenant as defined in the Islamic law of lease. Rather, the kharaji holding was a special form of land tenure, in which the land itself was owned by the state as representative of the community and held by the individual holder in accordance with rules of the Shariʿah as supplemented by conditions imposed by the state.11 It is difficult, without recourse to detailed historical analysis, to reconcile the Hanafi theory that all kharaji lands were private property with the Maliki and Shafiʿi theories that some kharaji lands were the property of the state. However, such a reconciliation is not essential to a description of Islamic Land Law, as it evolved historically, for these

The Classical Islamic Law of Property  13

theoretical differences had little practical significance in the subsequent development of the system of land tenure.12 It is important to note, however, that Islamic legal theory recognized private property not only with respect to ʿushri land, but also with respect to at least some forms of kharaji land.

State Lands: The Private Domain In addition to ʿushri and kharaji lands, which were in the possession of individual holders, the Shariʿah also recognized a basic category of lands originally in the direct control and ownership of the state. In general, these lands comprised the former Crown lands of the Persian and Byzantine empires and lands that had been unoccupied or abandoned at the time of their subjection to Muslim sovereignty. At that time, the ownership of these lands was vested in the Islamic state; they were not distributed as ʿushri properties, nor were they granted to the local inhabitants as kharaji holdings. According to the Shariʿah, the state was free to exploit this land as it deemed most advisable: it could hire workers to cultivate it; it could lease it; or, in most opinions, it could sell it or transfer it gratuitously. Furthermore, the state could generally impose any conditions it chose in connection with any of these dispositions.13 In effect, such lands were the “private property” or, in modern terms, the private domain of the state. Historically, this category of land was disposed of by the state in a variety of ways. Where substantial property interests were transferred to individuals, the grants were known as iqtaʿ, or “concessions.” Some of the grants were concessions of full ownership (iqtaʿ tamlik), while others were concessions of the rights of exploitation only (iqtaʿ istighlal). In the latter case, the raqabah—the title, or fee simple, or bare ownership—remained in the state; the grantee was vested only with those property rights transferred under the concession and subject to any conditions the state may have imposed in granting the concession. This latter form of grant played a highly significant role in the history of Islamic land tenure, for it provided a legal basis for the subsequent development of an Islamic feudal system.14

14  The Classical Islamic Law of Property

Mawat Lands Much of the total land area in the realm of Islam was, and is, uncultivated wasteland—predominantly desert. The rehabilitation of this land, most of which is cultivable with proper irrigation, has always been an important issue in Islamic economic history, and its importance is reflected in the law. The Shariʿah explicitly recognized this category of land—known as mawat, or dead, land—and provided detailed rules governing its vivification and disposition. In general, mawat lands were defined as uncultivated wastelands that had no private owners; ownership was generally deemed to be vested in the state. However, ownership could be acquired by individuals from the state in one of two ways: by permission of the state or, without such permission, by occupation and cultivation or construction in accordance with specific provisions of the Shariʿah. If the conditions imposed by those provisions were met, the possessor acquired ownership without the need for a transfer of property rights from the state.15 In this respect, the state’s right of ownership was a qualified right, subject to the Shariʿah rules governing the appropriation of mawat lands. The acquisition of mawat land was subject to such conditions as the requirement that the land be cultivated, if intended for agriculture, for a certain number of years; the Hanafis required three years. If this or similar conditions were not met, the possessor’s property rights in the land were subject to divestment. Upon fulfillment of these conditions, however, it was generally agreed that the possessor’s rights ripened into full ownership rights: mawat land became mulk land.16 Such conditions were generally applicable to the acquisition of mawat land by permission of—that is, under a grant from—the state. However, the state could also prescribe its own conditions, imposed by the terms of its grant to the grantee. In some cases, at least in later centuries, those conditions appear to have been less rigorous than those applicable to acquisitions without such permission.17 In many cases, however, the grants were made subject to additional terms and conditions imposed by the state. Consequently, state grants of mawat lands were treated in a manner somewhat similar to concessions of the

The Classical Islamic Law of Property  15

private domain of the state, subject, however, to the Shariʿah rules governing such lands.18

Public Lands and Servitudes The Shariʿah also recognized public rights in property, established in favor of the community as a whole. These rights were not systematically treated by the early Islamic jurists, nor did they constitute a separate class of property interest or land tenure under Islamic law. They were of great significance, however, in the basic system of Islamic land tenure and its development in the modern era. They included, for example, public rights in water, whether in relation to “public waters” as defined in the law, or to waters in the private property of individuals; public rights in pasturelands, or commons; public rights in roads and highways; and public rights in marketplaces. In some instances, these rights were in the nature of servitudes imposed on private property in the public interest. In other cases, they applied specifically to certain kinds of land and in effect appropriated that land to public purposes. The rules governing water rights and the rules relating to the use of commons (including, for example, pastureland, threshing grounds, and firewood lots) were regarded as directly traceable to a ruling, traditionally ascribed to the Prophet, which held that all Muslims were partners in water, pasture, and fire. On the basis of this maxim, an extensive corpus of law was developed governing water rights, primarily the rights of irrigation. The law regulated such matters as the distribution of waters in public or private waterways, the maintenance and repair of such waterways, the passage of canals or drains over adjoining private properties, the disposition of surplus waters, or the establishment of priorities in connection with waters used for drinking, cultivation, or the watering of farm animals. In general, these rights of irrigation were vested in the public or in neighbors of the affected property and were in the nature of servitudes imposed on the property.19 In addition to water rights and commons lands, other public property rights were also recognized in Islamic law and were similarly

16  The Classical Islamic Law of Property

regarded either as public servitudes or as public lands. For example, in the rules of law governing property rights in marketplaces or in public streets, such rights were treated as servitudes established in the public interest, limiting the private property rights of adjacent landowners. In this particular instance, the rules of property law were closely related to the rules of law dealing with the regulatory powers of the state, powers that reflected the state’s interest in public servitudes not only in relation to property rights, but also as regards such factors as public health, commerce, communications, or security.21 Another kind of public property right attaching to a specific category of land may be distinguished in connection with lands containing mineral resources. While there is no agreement among the Islamic jurists regarding the status of these resources in all particulars, it appears that state lands containing surface mines and, in some cases, underground mines were deemed to be public properties, the products of which were available to the community in general. In this respect, such lands were treated as distinct from the private property of the state, which the state could grant to private individuals by means of concessions. Such concessions of public lands were not generally permissible if they resulted in a divestment of public property rights in the land.22

Waqfs Except for the general characterization of some kharaji lands as held in “waqf” for the benefit of the Muslim community, waqf lands were not discussed in connection with particular kinds of landholdings in the early Islamic law books. Rather, the act of waqf was regarded as a charitable disposition of property by an owner of ʿushri or kharaji lands. The end result of such a disposition, however, was the creation of a property interest that constituted a separate and distinct form of land tenure. While the law of waqf is most complex, comprising an extensive corpus of Islamic law in itself, its structural similarity to a Common Law trust facilitates its description in familiar Common Law terms. In those terms, the Islamic institution may be described as an irrevocable trust of real property (or, in limited cases, personalty) that is created in perpetuity by the owner of such property by means of an

The Classical Islamic Law of Property  17

instrument of trust; administered by trustees designated by the grantor, and who may include the grantor; for the benefit of beneficiaries designated by the grantor, provided that the ultimate beneficiary is a charitable institution or cause; with the income payable to such beneficiaries only in the manner prescribed by the grantor for as long as the corpus remains in existence. What most clearly distinguishes the waqf from the Common Law trust are three basic attributes: perpetuity, irrevocability, and inalienability. Specifically, a waqf must be created for an unlimited period, the grantor may reserve no rights of revocation in himself or in any other party, and the property in waqf may never be alienated. Literally, as well as in practical effect, a waqf is an “immobilization” of property.23 Originally, the creation of a waqf was an act of charity or almsgiving. The grantor “immobilized” his property as an endowment for some charitable institution or purpose (such as a mosque or a school, or the distribution of bread to the poor) to which the income from the property was appropriated in perpetuity. It soon became permissible, however, to create a waqf in which the grantor named intervening beneficiaries, usually his descendants, whose rights to the income would precede those of the charity. In fact, as long as the ultimate beneficiary, no matter how remote, was a charity, the grantor could designate intermediate beneficiaries without limit. For example, he could constitute a waqf naming all his descendants, both born and unborn, as beneficiaries as long as he provided that upon the final extinction of his line the income would go to a designated charity. Waqfs of this latter type were known as “family waqfs,” while waqfs in which the charitable interest was immediately vested and enjoyed were known as “charitable waqfs.”24

L and T enure

and

P roperty R ights

In terms of the property rights of individual landholders, there were three basic forms of land tenure under Islamic law. The first, and the norm under the Shariʿah, was a holding of private property, of mulk land, in which the owner held full rights of ownership. The second was a holding of waqf property, in which the holder did not have full ownership rights, but whose property rights were defined and governed by

18  The Classical Islamic Law of Property

special rules of Shariʿah law. The third was a holding, or a variety of holdings, of lands in the ownership of the state, in which the holder’s property rights were defined by the Shariʿah to a limited degree only and were governed primarily by conditions prescribed by the state. Such conditions were imposed either in connection with the state’s grants to such holders or by state administrative regulations of general application. These holdings of state property included various kinds of concessions from the state, either from its private domain or from mawat lands, as well as those original kharaji holdings in which ownership was deemed to be retained by the state.

Private Property: Mulk Land The Shariʿah rules of law governing property rights were directed primarily at the definition and regulation of the right of private property, or mulk. Those rules governed all mulk property, whether personalty or realty, and, if realty, whether ʿushri or kharaji (to the extent that kharaji lands were deemed to be private property in the different schools of law). Such rules were given their most systematic treatment in connection with the transfer of property rights, including such matters as legal powers of disposition, primarily contractual powers, and the various means of acquiring property rights other than by contract. In addition, there were rules, less systematically treated, relating to the rights of ownership in general, including the extent of the owner’s powers of enjoyment or use of his property, and the restrictions upon those powers. Except where it was clear that the law applied to land only, these rules of property law governed rights in personal property as well as real property; in either case it was assumed, if not explicitly stated, that the rules applied primarily to mulk properties.25

enjoyment of the right of ownership

The basic right of ownership in Islamic law was presumed to be absolute, and the owner’s powers to use and enjoy his property were deemed to be unlimited, subject only to specific restrictions imposed

The Classical Islamic Law of Property  19

by law.26 These restrictions, considered together with this basic presumption of absolute ownership, in effect define the actual extent of the right of private property in Islamic law. The theoretical basis of most of the restrictions on the right of ownership was an underlying principle, manifested in specific rules of law, that limited the exercise of an individual’s otherwise legal rights if such exercise would cause intentional or unwarranted damage to others, disproportionate to the benefit accruing to the individual vested with such rights. Thus, Islamic law qualified the absolute right of ownership by restricting its exercise, in effect, for the benefit of neighbors.27 In specific cases, such a restriction appeared, for example, in the rules governing the ownership of buildings. Where separate stories in one building were owned by more than one person—a common situation in Islamic countries—the right of ownership in each story was restricted in various ways to ensure the protection of the owners of other stories in the same building.28 Similar restrictions on the right of ownership were contained in the rules governing the construction, maintenance, and destruction of party walls; the construction of buildings that cut off a neighbor’s light or view; or the placing of windows giving a view over the women’s quarters of an adjacent building.29 Perhaps the most important restrictions on the absolute right of ownership were those relating to the use and distribution of water. In view of the importance of water in the predominantly desert economy of the Middle East, these matters were governed by the law in some detail. The law provided, in general, that notwithstanding a property owner’s rights in the waters in his land or his canals, he was not entirely free to dispose of those waters as he chose. In the words ascribed to the Prophet, all Muslims were partners in water, pasture, and fire. On the basis of this principle, a property owner was required, for example, to allow anyone to drink or to water cattle from a well or spring on his land; he could refuse to permit the taking of his water for purposes of irrigation, but he could not sell his water for those purposes; if his property was located upstream, he was required to allow the downstream owners their share of the waters; and he was required to permit a neighbor a passage across his land if that neighbor had no other access to water.30

20  The Classical Islamic Law of Property

In legal theory, these restrictions on the right of ownership for the benefit of neighbors came to be regarded as rights vesting in the neighbors’ lands, in the nature of easements or servitudes. Other servitudes could be established by contract or agreement, but these particular rights of servitude were created by operation of law, ran with the land, and could not be sold or otherwise alienated.31 In like manner, there were public servitudes, such as those pertaining to public rights-of-way or marketplaces, which also operated, in effect, as restrictions on the right of ownership in cases where they affected an individual’s private property.32 They differed from “private” servitudes established by law in that they were established for the general public and in the public interest, whereas the latter were established for the benefit of immediate neighbors of the affected property owners. In both cases, however, they resulted in limitations on the owner’s right of ownership. Another significant distinction between these two types of servitudes was the private servitudes being established in each specific case by automatic operation of law and the public servitudes normally being established in specific cases by administrative action of the state, pursuant to law. In this latter connection, the state had the power to expropriate private property or otherwise limit its use and enjoyment for purposes of the public welfare, a power that was in itself potentially (and in practice) a serious limitation on the right of private property.33

acquisition and disposition of the right of ownership

Under Islamic law, an owner of mulk property had extensive powers of disposition over that property. By contract, he could transfer his full ownership rights by sale or gift, or he could transfer lesser rights by means of lease, pledge, or loan. His rights were transmissible by succession, according to the law of inheritance, and could be left to designated heirs by will, according to the law on testamentary dispositions. Most significant as an indication of the extent of his powers, he could also totally immobilize his property rights by constituting them in waqf. In addition, the Shariʿah provided for the acquisition of property rights by various other means, including the appropriation of mawat

The Classical Islamic Law of Property  21

lands, adverse possession, and preemption. An analysis of the rules governing each of these methods of property transfer serves to clarify the nature of the right of ownership and affords a basis for its comparison with other kinds of Islamic property rights, as well as with the right of private property in modern Egyptian law. Contract. The precise nature of the Islamic right of ownership is most clearly reflected in the rules governing specific contracts. According to those rules, there were four basic contracts relating to property: the contracts of sale, of gift, of lease, and of “loan for use,” or ʿariyah. The latter was a contract whereby a property owner would lend his property to another, without compensation, on condition that the identical property would be returned to him upon the termination of a stipulated period of use by the borrower. It is to be distinguished from the ordinary loan in which the borrower expected to consume the property and agreed to return property in kind (such as money) and that, if made for consideration (constituting interest in the case of a money loan), was forbidden in Islamic law. Thus, the ʿariyah was, in effect, a contract of lease, but made gratuitously, without consideration.34 In a similar respect, the contract of gift was comparable to the contract of sale: while both transferred full ownership rights, the latter required a return consideration, and the former did not. Although neither the lease nor the ʿariyah transferred full ownership rights, they resulted in the creation of a lesser interest that was deemed to be a property right. That interest came to be known as a manfaʿah, an enjoyment or benefit, and in time took on a technical meaning similar in many respects to that of a usufruct in Roman law. The leasehold of Islamic law was thus regarded as a usufructuary interest in the land itself, separable from, although an element of, the right of ownership. Where such a leasehold was created, the owner of the land, the lessor, was said to retain the raqabah of the land, its title or fee.35 Accordingly, Islamic law conceived of full ownership (mulk tamm) as comprising two elements: the raqabah, or fee, and the manfaʿah, or usufruct. The contracts of sale or gift transferred both of these elements, while the contract of lease or ʿariyah transferred the usufruct only. In this respect, those elements were separable, and each could be held as a distinct property right. On the same theory, the creation of a waqf

22  The Classical Islamic Law of Property

involved a transfer of full ownership rights from the grantor. However, only the usufruct of the land was transferred to the use of the beneficiaries; the fee did not pass to them, but was, in theory and in fact, “immobilized.” Consequently, full rights of ownership in waqf land could never be alienated.36 One other interest in property was reflected in the Islamic contract of pledge. Although the Shariʿah permitted a property owner to pledge his property as security for his debts, it required that the creditor take possession of the property, regardless of whether it was personalty or realty. The creditor, however, did not have a right of usufruct in the land, but a right of possession only; the owner of the property retained his full rights of ownership, subject to the rights of the creditor. In this respect, the law made a clear distinction between possessory rights and ownership rights.37 In this connection, another security transaction recognized by the law involved a contract of “sale with a power of redemption.” Under such a contract, a property owner would sell his property for the purpose of acquiring needed funds, but would retain an option to repurchase the property within a stipulated time. Pursuant to such an arrangement, the purchaser could take possession of the property, or he could lease it back to the original owner. In either case, however, the contract resulted in the transfer of full ownership rights to the purchaser.38 The Shariʿah also prescribed rules governing other specific contracts, but most of these were variations of the basic contracts discussed above, relating to the transfer of property rights or the establishment of creditors’ rights. One basic type, however, requires mention because of its importance in modern times. This type of contract established a partnership arrangement between an owner of land and an agricultural worker for the purpose of exploiting the land and distributing its profits. Such distribution was made on the basis of the amount of capital or labor contributed by each party. One of these contracts was called a muzaraʿah; it established what in essence was a sharecropping arrangement on land intended for cultivation.39 Inheritance and Testamentary Dispositions. The Islamic laws of succession are monumental: they comprise a separate and complex corpus of law governing the devolution of estates in the finest detail. While even the most general discussion of their application cannot be encom-

The Classical Islamic Law of Property  23

passed within this survey, two points require mentioning. First, while it is obvious that the owners of mulk property were subject to the laws on succession and in this sense had a right to transmit their property according to those laws, it also appears that the succession laws were primarily intended to govern mulk properties only. In general, those laws did not deal with the devolution of other forms of landed property interests, such as waqfs or state-owned lands. Second, the laws of succession generally tended to result in a decimation of the original estate by its distribution into increasingly smaller parcels in the hands of succeeding generations of heirs. The rigorous requirements of the laws of inheritance could be mitigated only in part by the use of wills, for the laws governing testamentary dispositions were closely coordinated with the inheritance laws for the purpose of controlling the devolution of estates in accordance with basic social policy. Consequently, property owners often attempted to avoid the application of the succession laws where they desired more freedom of disposition than was available to them under those laws. This was one of the factors accounting for the widespread creation of waqfs, which could be used to transmit property interests after death and which were not treated as testamentary dispositions if created to take effect immediately.40 Possession and Related Means of Acquisition. The Shariʿah also provided for the acquisition of property by various other means, treated much less systematically, however, than the laws on contract or succession. These rules were contained throughout the legal texts and covered a variety of cases, including, for example, the acquisition of property created by the action of waters of the sea or rivers—alluvium formed on the banks of a property holding, land left uncovered by the recession of waters, islands formed in rivers, or the displacement of one person’s land and its deposit on the land of another. There was no general rule governing the ownership of these properties, but in most cases the owner of the land to which the new property attached acquired ownership of the added property.41 Other rules dealt with the acquisition of property in connection with acts of trespass (ghasb). Those rules covered problems of ownership that arose in cases where one person entered upon the land of another and constructed buildings on it. In some cases, the owner of the

24  The Classical Islamic Law of Property

land acquired ownership of buildings; in others, the trespasser could acquire ownership upon payment of compensation.42 More important were the rules relating to long-term possession of land by a person other than the owner. In general, the law provided that if such possession continued for a certain number of years, usually ten to fifteen, under conditions that reflected the possessor’s claim to ownership of the land, no action could be heard against him for repossession of the land by the original owner. In effect, the law recognized a doctrine similar to that of adverse possession in the Common Law. Unlike the doctrine of acquisitive prescription (such as is found in French law), such possession did not automatically result in the acquisition of property rights, but merely barred actions against the possessor based on the original owner’s property rights.43 Another important means of acquiring ownership was the appropriation of unowned property, either personalty or realty. In the latter case, the land was normally mawat land and could be acquired by vivification pursuant to the rules governing the disposition of this type of land. If acquired by means of vivification, mawat land generally became the private property (mulk) of its possessor.44 Preemption. The Shariʿah provided for another means of acquiring ownership that appears to be peculiarly Islamic. This was acquisition by preemption, whereby specified parties could intervene in a sale of land and purchase the land by subrogating themselves, in effect, to the rights and obligations of the purchaser under the original contract of sale. In this respect, preemption was another restriction on the right of ownership, limiting an owner’s legal powers of disposition to the extent that he could not always sell his property to a person of his own choice. All schools recognized a right of preemption in joint owners of property, but the Hanafis went further and vested the right in adjacent neighbors of the property sold and also in owners of land who shared a property right in common with the seller. In the latter case, such an owner (known as a khalit) might be, for example, one who shared a private road with neighboring landowners; he could, therefore, preempt in the sale of any of the properties to which rights in the road attached, regardless of whether the property was immediately adjacent to his own.

The Classical Islamic Law of Property  25

The rules on preemption were quite complex and covered such matters as the relative priorities of different classes of preemptors, the distribution of the preempted property among several preemptors, the kinds of sales subject to preemption, and the procedure required to exercise the right. In general, the scope of the right was extensive, its exercise subject to few restrictions in the law. The policy reasons underlying the vesting of the right in neighbors were similar in principle to those underlying the restrictions on the enjoyment of property. That principle was the protection of neighbors from harm; and in this instance, the Hanafis, at least, believed that landowners could be caused harm by being forced to accept as their neighbor any person who might purchase property adjoining their own. In essence, they were given an option to protect themselves against potentially undesirable neighbors.45

Waqf Lands Lands held in waqf constituted a separate form of land tenure, distinct from private property. On a basic theoretical level, the raqabah, or title, was immobilized in perpetuity; as a result, the only property interests existing in waqf land were limited to and based on the usufruct. The practical effect of this theoretical distinction was that property rights in waqf lands were of a totally different nature from the property rights of mulk landowners and were governed by different rules of law. Normally, the holders of property rights in waqf lands were the beneficiaries of the waqfs, who had rights somewhat comparable to rights of beneficial ownership in the Common Law. However, there were many other parties who might have interests in waqf property, including the grantor, if he reserved rights to himself; the trustees (including, in Islamic law, two classes: the direct administrator of the property, the mutawalli, and the general overseer of the administration, the nazir) who might, in addition to their administrative powers, also have beneficial interests in the property itself, and whose powers of administration, regardless of such interests, might be so broad as to constitute in fact a valuable interest in the property; the judge of the local Shariʿah Court, who might be an active participant and arbiter in questions relating

26  The Classical Islamic Law of Property

to the disposition of the property; and finally, where a lease was given, the lessee of waqf property. As an indication of how such interests could be vested and of the various arrangements that could be utilized in the disposition of property in waqf, some examples of waqf terms are presented below,46 in all of which the endowment of a school is assumed to be the ultimate charitable beneficiary: 1. Land could be constituted in waqf for immediate use and occupancy by the school, and the trustee might be someone connected with the school, such as the principal. In practical effect, the school would then “own” the land, although if it ever moved its site or terminated operations, the lack of full ownership rights would become apparent and present problems in connection with the legal limitations on the alienability of waqf land. 2. The school could be vested with immediate rights of enjoyment in the land, which, instead of occupying, it could utilize as a source of income, either by direct exploitation through employees or agents or by means of short-term leases. In effect, the school would become landlord of the property, collecting rents for its own use. 3. The school could be vested with immediate rights as in the above example, but with the grantor and perhaps his heirs as trustees. The trustees would be accountable to the school for the income, but would be paid for their services according to rates established by the grantor in the original deed of waqf. 4. The school could be vested with immediate rights, but, pursuant to the terms of the deed of waqf, might lease the land to the grantor and his heirs. The terms of the lease-back would be prescribed by the grantor, provided that such terms did not violate the rules of waqf law relating to leases of waqf land. Such rules, for example, did not permit long-term leases, although the permissible short-term leases were renewable. 5. The school might not be vested with an immediate interest in the land, but rather might be entitled to its use only after termination of the interests of preceding beneficiaries. Those beneficiaries could include the grantor himself, with a life interest (if permitted by the school of law having jurisdiction), and also his heirs, descendants, or issue until the extinction of the line. In addition, the grantor could prescribe other conditions relating to the administration of the waqf that could, in ef-

The Classical Islamic Law of Property  27 fect, result in the retention of extensive control over the property in himself and his family, subject only to the general law of waqf. 6. As a compromise between typical charitable and family waqfs, the school could be vested with an immediate right to a stated amount of income, with the excess going to other beneficiaries, such as the grantor and his heirs. After the extinction of the line of beneficiaries, total income would go to the school.47

In general, property interests in waqf property were defined and governed by the law of waqf, which prescribed rules relating to the creation of a waqf, its basic character, and restrictions on its disposition; in addition, they were governed by the deed of waqf itself, in which the grantor could impose detailed conditions relating to the use and enjoyment of the property, provided that such conditions were not inconsistent with the more general rules of waqf law. With respect to the enjoyment of waqf property, it also appears that the general rules of property law imposing restrictions on the right of ownership were applicable as well to holders of waqf property. For example, such holders would be bound to observe the legal servitudes governing water rights, which, like other servitudes imposed by operation of law, were charges on the land itself. In this respect, the holder of a waqf interest could be regarded as the “owner” of a usufructuary interest and thus subject to the general rules of property law restricting the right of ownership for the benefit of neighbors or the general public.48 Such a theoretical characterization of the waqf usufruct as the mulk of the waqf holder, however, had no application with respect to the legal powers of disposition vesting in such a holder. The Shariʿah contracts of sale or gift, for example, presupposed a transfer of full ownership rights, including title and usufruct, elements that were permanently separated in waqf properties. Furthermore, the law of waqf made no provision for a transfer of waqf property, but to the contrary, explicitly prohibited the alienation of waqf land except in limited circumstances (for example, land could be exchanged for another parcel of land of equivalent value if the original property no longer fulfilled the purposes of the waqf).49 As for other powers of disposition over waqf land, the most important was the power to lease the property. This power, too, was defined

28  The Classical Islamic Law of Property

and governed by the law of waqf, which provided detailed and rather strict rules relating to the terms and conditions of waqf leases. The most important of these rules prohibited long-term leases; the Hanafis, for example, generally limited the duration of waqf leases to three years.50 Although the legal restrictions on property rights in waqf land were in many respects burdensome, the creation of waqf was widespread throughout Islamic history, for a number of reasons. For one, the limitations imposed by the law of waqf were not, in practice, too confining, except for the restrictions on alienation. Such restrictions did not present serious problems when it was expected that the land would remain in the possession of the family regardless of whether it was held in waqf. In larger estates, however, these restrictions, especially the prohibition on long-term leases, presented more of a problem: they often were obstacles to the most efficient use of the land, particularly for long-term investment purposes. Yet even those obstacles were to a great extent overcome by later innovations and devices that, in effect, permitted the making of long-term or even perpetual leases, amounting in some cases to virtual alienation of the underlying property interest. Such devices differed in their detailed operation, but they were all based on an extension of the principle that short-term leases were renewable, exploiting that principle by various means to maximum advantage. In later centuries in Egypt, the most common forms of these long-term leases were known as the ijaratayn, the hikr, and the khulu.51 Within the limits prescribed by the Shariʿah rules on waqf, the most restrictive of which related to alienation, the law of waqf was said to be contained in the deed of waqf. By this was meant that the grantor was free, within those legal limits, to prescribe the conditions under which his property was to be held and its profits distributed; and this appears to have been another reason for the widespread use of waqfs. For example, the grantor could ensure the integrity of his patrimony and provide for its protection against any prodigality on the part of his heirs by imposing conditions on the distribution of waqf income or its expenditure, thus creating what might be compared to a Common Law spendthrift trust. Moreover, he could even impose conditions relating to the beneficiaries personal conduct, thus providing for the fulfillment of his desires even after his death.52 Most significant, he was not required to allot beneficial shares in the waqf according to the rules of

The Classical Islamic Law of Property  29

distribution under the laws of inheritance, nor was he required to designate his heirs as beneficiaries. Thus, since the creation of a waqf, if it took effect immediately, was deemed to be in the nature of a sale or gift and not a testamentary disposition, a property owner could generally avoid the requirements of the laws of succession by disposing of his property in waqf.53 An additional factor bearing upon the widespread creation of waqfs in Islamic history was a desire on the part of landowners to protect their property from the often despotic and arbitrary acts of the government, particularly acts of confiscation. Theoretically, waqf property was more secure from such acts than mulk property, in which the state had certain limited interests, such as rights of escheat on the death of an intestate owner without heirs, of forfeiture for nonpayment of taxes, or of expropriation for purposes of public utility.54 These and similar interests could be used as justifications for arbitrary action by the state with respect to mulk properties, but it was much more difficult to reconcile such action with the theoretical premises of waqf law, which provided that waqfs were, by definition, inalienable, irrevocable, and created in perpetuity. Although the advantages connected with a holding of property in waqf were considerable, such advantages were legally available to private property owners only: according to the Shariʿah (except for a Maliki rule), only private property held in full ownership could be constituted in waqf.55 Nevertheless, motivated by the same desires as private property owners, holders of state-owned land often attempted to create waqfs of their property interests. In some cases, such a disposition, although successful, was clearly illegal and amounted to conversion of the state’s property. In other cases, however, the state explicitly permitted and provided for such dispositions. In those cases, the “waqf” (sometimes known as an irsad) created by the landholder of his property interest was not a true waqf according to the Shariʿah, but it was clearly valid as between the state and the landholder under the law of the state.56 In this respect, such a power of disposition over state-owned lands was similar to other rights permitted to holders of such lands, rights that paralleled the rights of private property owners under the Shariʿah, but that were defined and governed by the law of the state.

30  The Classical Islamic Law of Property

Holdings of State-Owned Lands State-owned land held in the possession of private parties constituted another distinct form of land tenure in Islamic law and, moreover, the most important form in Islamic history. It is difficult, however, to make general statements regarding the nature of these holdings, first, because of their variety during different periods and in different areas and, second, because their precise status was not defined in the Shariʿah. In practical effect, their status was governed by the terms and conditions under which they were held as concessions from the state. Those terms and conditions, where they were of general application, were deemed to be part of the administrative law of the state or, in Ottoman terms, the Kanun law. Thus, the law governing stateowned landholdings was not the Shariʿah, the fundamental law of the Islamic community, but the Kanun law that, as the administrative law of the state, presumably supplemented the Shariʿah. In this respect, both bodies of law, the Kanun law and the Shariʿah, may be regarded as complementary elements in what might be described as traditional Islamic law. The Shariʿah provided the basic rules defining the property in which the state had interests and, to some extent, the nature of those interests. In the case of those kharaji lands deemed to be in the ownership of the state according to the Maliki and Shafiʿi schools of law, the Shariʿah proscribed their use by the state as its private property for purposes of granting state concessions. The Shariʿah also defined the nature of the property interests vesting in the kharaji landholder: in general, those interests were likened to a leasehold or usufruct, but narrowly limited with respect to legal powers of disposition.57 As regards mawat lands, the Shariʿah prescribed rules relating to their acquisition and conditions of vivification and also provided that if such lands were acquired by vivification, they became the private property of their possessors.58 In the case of mawat lands granted by the state, however, or grants made from lands in the private domain of the state, both of which were closely related in theory and practice, the Shariʿah rules did not fully cover the nature of the property interest created by such grants. If they were made as concessions of full rights of ownership, which appeared to have been common practice in the early years of Islam, they

The Classical Islamic Law of Property  31

were clearly subject to the Shariʿah rules governing mulk properties. However, where they were made as grants of less than full ownership rights, in the nature of concessions of the rights of exploitation (iqtaʿ istighlal), the Shariʿah did not deal with the property interests created by such grants. The regulation of those property interests were in effect left to the state, to be governed by the conditions under which the grants were made. As a result of the state’s general practice to make these grants of less than full ownership rights, a separate and distinct form of Islamic land tenure was created. The conditions imposed by the state in connection with these concessions were not uniform, and consequently no general description may be made of the property interests attaching to the concessions. Such an interest may have been very limited; in many cases, however, the property rights of a state landholder were rather extensive and comparable in most respects to the property rights of a private property owner. For example, the state often permitted such holders the right to transfer their property interests to another party. However, these rights—known as the rights of nuzul or ishhad under the Mamluks or of firagh under the Ottomans—were not the equivalents of the Shariʿah contracts of sale, gift, or exchange. They were rights defined under the Kanun law, which often placed restrictions on their exercise, including, for example, the necessity for prior consent from the state.59 Furthermore, the state sometimes provided for a transmission of the holder’s property interest to his descendants upon his death. It seems to have been rare, however, that such transmission was the equivalent of the Shariʿah succession by inheritance or bequest by testament. Testamentary dispositions were seldom permissible, and the property interest in the land usually did not pass to the holder’s Shariʿah heirs, but to descendants designated by the Kanun law, often according to the principles of primogeniture.60 At times, the state permitted the holders of its concessions to constitute their interests in waqf. As discussed above, these were not valid waqfs according to the Shariʿah. However, they were recognized by the state as a form of disposition analogous to the Shariʿah waqf, but defined and regulated by the Kanun law. In Ottoman terms, these waqfs were “false” or “unsound” (waqf ghayr sahih), as opposed to the “true” waqf (waqf sahih) of the Shariʿah.61

32  The Classical Islamic Law of Property

In addition, the state even made provision for the acquisition of property rights in state-owned lands by means of preemption. Again, the right of preemption applicable to state-owned lands was not the Shariʿah right, which was vested in mulk owners only, but was an analogous right permitting preemption in connection with the sale of a property interest held on state-owned land. Under the Ottomans, the right was known as a “right of preference” (haqq al-rujhan or awlawiyah) and was governed by special provisions of Kanun law.62 With respect to the rights and powers of enjoyment in state-owned landholdings, those, too, depended on the nature of the grant and the conditions imposed by the state. In general, it appears that the landholder’s interest was in the nature of a usufruct or manfaʿah, but some of the original grants appear to have conferred less than full usufructuary rights, restricted, for example, to physical occupancy of the land without the right to lease it or to the collection of its rents or revenues without the right to occupy it. In any case, the property interest was defined by the state, although by usage and custom the original restrictions on state grants were often relaxed or dispensed with.63 Whatever the holder’s general rights of enjoyment over his property, it appears that, as in the case of waqf land, the Shariʿah restrictions on the exercise of the right of private property were also applicable to state-owned property. Since those restrictions were in essence legal servitudes, they appear to have run with the land regardless of who the owner or occupant might be.64 In this respect, the property rights of state-owned landholders were subject to the Shariʿah; in almost all other respects, however, they were governed by the state. The theoretical basis for the existence of a distinct form of land tenure governed by the Kanun law of the state was clear with respect to the private domain of the state and to mawat lands granted as state concessions. With respect to kharaji lands, however, there was no such theoretical basis. Kharaji lands that were deemed to be mulk property were governed in all respects by the Shariʿah. State-owned kharaji lands (existing in the Maliki and Shafiʿi schools only) were also governed by the Shariʿah in respect of the state’s rights in such lands and the property rights of their individual holders. There was no basis in the law for granting concessions of kharaji lands in the same manner as concessions of the private domain. Nevertheless, there is little in-

The Classical Islamic Law of Property  33

dication that any distinction was maintained, in later centuries, between kharaji land of the Shariʿah and other state-owned landholdings: in practice, both were commonly known as kharaji lands (because the land tax was generally known as a kharaj), and most of the lands described as kharaji were treated as holdings based on concessions of land from the private domain.65 There appear to have been two basic reasons for the virtual disappearance of the original kharaji lands as a distinct form of tenure. The first was that the original class of kharaji lands had been gradually reduced to a minimum in total land area and assimilated to the private domain holdings. Many of the original kharaji lands (all of which were deemed to be mulk lands by the Hanafis) were, like mulk lands in general, gradually taken over by the state by a continuing process of escheat, forfeiture, purchase, voluntary transfer, or outright confiscation.66 The second reason related to a policy early adopted by the state concerning the revenue due from those lands. According to the Shariʿah, the state was clearly entitled to that revenue, the kharaj, which it could collect by its own agents or by other means, including the use of taxfarms.67 In essence, the tax-farm was based on a contract between the state and an individual—the tax-farmer—whereby the state transferred to him its right to the revenues in exchange for an immediate payment based on the value of the estimated revenues minus a discount. The tax-farmer then collected the kharaj for his own account, earning his profit on the difference between the price paid and the amount collected. Although the tax-farmer’s interests were essentially financial, in time those individuals acquired additional rights that amounted, in effect, to property rights. For example, they came to exercise effective control over the land itself, assuming the rights of a landlord with respect to the cultivators of the land. In addition, they could often sell or otherwise transfer their interest or transmit it to their descendants. In practical effect, they became holders of usufructuary interests in the land itself, notwithstanding that the creation of such an interest in kharaj lands by means of a state concession was illegal according to the Shariʿah.68 A related practice involving revenue collections led to similar results. The state could assign its rights to the kharaj as concessions to individuals, and such concessions could be made gratuitously or in

34  The Classical Islamic Law of Property

satisfaction of debts owed by the state to those individuals. Like the tax-farms, such assignments developed into concessions of property interests in the land itself, not merely financial interests in the revenue. Their particular significance lies in soldiers often being the recipients of these grants, in consideration either for past services or for future military obligations.69 In this respect, these concessions were an important element in the development of an Islamic feudal system of land tenure. As a result of these practices and of the corresponding attrition of the remaining kharaji lands of the original Shariʿah category, those lands virtually disappeared as a distinguishable form of land tenure. By the time that a feudal system of tenure had been established, all kharaji landholdings were treated as holdings of state-owned lands of the private domain and were regulated by the Kanun law of the state.

Later Development of the Islamic System of Tenure in Egypt In Egypt, the later development of an Islamic system of land tenure organized along feudal lines was reflected most clearly in the system established under the Mamluks, whose rule began in the thirteenth century. That system, as modified by the Ottomans following their conquest of Egypt in 1517, was the basis of land tenure as it existed in Egypt until the modern era, at the beginning of the nineteenth century. Under the Mamluk system of tenure, there is no indication that the classical distinctions between the original kharaji lands and the lands granted from the private domain of the state were maintained, and virtually all state-owned land held by individuals was treated as the private property of the state, subject to its unrestricted disposition. Furthermore, most of the land in Egypt was by then owned by the state. Just as the original kharaji lands of the Shariʿah had been gradually assimilated to the private lands of the state, so were many of the former mulk lands, and even waqf lands, brought under the state’s direct ownership. As in the case of kharaji lands, the reasons for such conversion may have been escheat, forfeiture, purchase, or expropriation for public purposes, but in many cases, particularly those of waqf lands, the conversion was probably a result of confiscation by the state. In any

The Classical Islamic Law of Property  35

case, by that time mulk lands were primarily confined to urban areas, and although waqf lands may have been more extensive, many of those lands were, or were treated as, waqf of state land under Kanun law, and not true Shariʿah waqfs—a fact that would support the state’s right to appropriate those properties when it chose to do so.70 As regards the disposition of state-owned lands, a large portion was reserved for the Sultan, forming a royal domain: in a sense, it was the private domain of the state retained under its direct control. The remaining state lands were distributed and held as concessions by private parties; and most of these concessions were in the nature of military fiefs, held on the basis of a system of military organization.71 All of these concessions were held subject to various conditions imposed by the state, conditions that defined the nature of the property holding and of the property rights of the individual holders. In many cases, provisions were made for the transfer or sale of the property interest to another party, or for its transmission to the descendants of the holder upon his death, but such transfers were usually subject to strict control by the state.72 In addition, the state recognized a form of waqf holding on state land, or a waqf of the usufruct of the land, a Kanun waqf, as opposed to a Shariʿah waqf. The property interest in these waqfs was sometimes described as a rizqah (rizqah ahbasiyah, as distinguished from a rizqah jayshiyah; the latter may have been similar grants in waqf or grants of full property rights).73 Such holdings were of particular significance in Egypt because they later constituted, at the beginning of the nineteenth century, one of the principal forms of landholding in that country.74 Upon the Ottoman conquest of Egypt, the basic system of land tenure existing under the Mamluks was left intact, except for one important change: the Mamluk fiefs were abolished and the lands formerly held in those fiefs reverted to the state’s direct control and ownership, as part of the state domains. Instead of redistributing these lands in new fiefs or in similar property concessions, the Ottomans established an extensive system of tax-farming on the state domains, granting concessions of the right to collect taxes, the kharaj, from the peasant cultivators.75 In many respects, these tax-farms were similar to those recognized in the Shariʿah. In return for a payment to the state, the tax-farmer

36  The Classical Islamic Law of Property

was granted the right to collect the kharaj from a designated area of land, and his profit (faʾid) was the amount of taxes collected in excess of the sum paid to the state. In addition, however, the tax-farmer was normally granted a parcel of land, an usiyah, for his own use and disposal, which he could exploit as he chose.76 Furthermore, he was extended additional rights that in fact vested him with direct property interests in the land included within his tax-farm. For example, by the seventeenth century, he was normally given the concession for life, with the rights to cede, mortgage, and lease his interest; and his sons were given a prior right to take the interest upon his death. In addition, the tax-farmer exercised certain rights over the peasants cultivating the lands in his concession, including the right to draft them for work on his own land, to prevent them from leaving their holdings, and some powers of summary justice.77 In practical effect, his property rights were thus very similar to those of the former holders of fiefs. An important theoretical development in connection with the Ottoman system of land tenure was the definitive formulation of a legal theory concerning the status of state-owned lands. These lands were designated as “state” lands (mamlakah or miri lands) and were treated as a separate and distinct category of property, in addition to the basic classical categories of ʿushri and kharaji lands. With the adoption of this concept, state-owned landholdings were finally given formal recognition in the law as a distinct form of land tenure.78 At the beginning of the nineteenth century in Egypt and the advent of the modern era in that country, the Islamic system of land tenure was based on three basic forms of landholding: private property, waqf lands, and state lands. However, most of the land in Egypt—virtually all of the agricultural land—was in the ownership of the state and either held by the state as part of the royal domains or held by individual grantees as tax-farms, as usiyah lands, or under other concessions, such as rizqahs. Mulk lands were at a minimum and principally confined to urban areas. It appears that properties held in waqf were also limited in extent, although their status was not clear because of the existence of many “waqfs,” such as the rizqahs, created on state-owned lands.

67 2

T raditional I slamic L aw in the M odern E ra

marked the commencement of the modern era in Egypt. Prior to that time, the basis of Egyptian society, including its legal system, had remained essentially unchanged for centuries: it was a traditional Islamic society whose course of historical development took place within a traditional Islamic framework. With the turn of the century, however, there began a process of change that has resulted in the emergence of a modern nation whose development as such has been defined primarily in Western terms. This modern course of development takes as its starting point the French occupation of Egypt, which established a direct, although transitory, contact with the West. Subsequently, as a result of the policies of Muhammad Ali, the first ruler of modern Egypt, similar contacts were established and maintained. Through these contacts Western concepts were introduced into Egypt, and their influences were soon evidenced in many aspects of the traditional society. In many cases, the traditional structure was altered or even superseded. In some cases, the change was gradual; in others, it was direct and immediate. In respect of the traditional Islamic legal system, some fields, such as Commercial Law, were affected by the influx of Western ideas at an early date. In other fields, including Land Law, such influences were

the beginning of the nineteenth century

38   Traditional Islamic Law in the Modern Era

not evidenced until quite late in the nineteenth century. The legal basis of land tenure in Egypt when Muhammad Ali came to power was traditional Islamic law, and although he introduced certain innovations, particularly with respect to holdings of state-owned land and the redistribution of such holdings, those innovations were effected within the context of and consonant with traditional Islamic law and practices. In this sense, the system that developed from the time of Muhammad Ali to the adoption of the Civil Codes in the latter part of the century was essentially a system based on Islamic law, unmodified in any significant measure by Western influences. In one respect, however, the development of Land Law under Muhammad Ali and his successors might be characterized as “modern” in that it resulted in a gradual increase in the property rights vesting in individual landholders. Such an independent development, uninfluenced by Western legal concepts and taking place along traditional lines of Islamic law and practices, marked the first stage in the emergence of the modern institution of private property in Egypt. The principal basis of that institution, however, as well as of modern Egyptian property law in general, was the Egyptian Civil Codes, derived almost entirely from the Code Napoléon and first adopted in 1875. Yet, although the adoption of those codes appeared to indicate an abrupt and virtually complete break with earlier tradition, Islamic legal elements continued, and continue today, to constitute an important factor in the property law of modern Egypt.

T he S ystem

of

L and T enure C reated

by

M uhammad A li

When Muhammad Ali came to power at the beginning of the nineteenth century, virtually all of the agricultural land in Egypt was theoretically in the ownership of the state, and the system of land tenure governing the holding of such land was based on the tax-farm. The principal holdings under this system were the tax-farm itself, granted as a concession on a contractual basis to the tax-farmer; the usiyahs, which were held by the tax-farmers as their own properties and exempt from taxation; and the various concessions generally known as rizqahs, which were also normally tax-exempt. Although the title to

Traditional Islamic Law in the Modern Era  39

such lands was theoretically in the state, in practice it was often difficult to distinguish these holdings from lands held as private property, for their holders had gradually come to possess or exert such extensive rights or powers that theoretical distinctions had little practical meaning. In general, holders of state-owned land had the right to transmit their property interests by inheritance and to transfer such interests by inter vivos disposition. Furthermore, in practice they often exceeded their legal powers and disposed of the land itself as if they were the true owners, even constituting the land in waqf. As a consequence, a large part of the state-owned landholdings at the beginning of the nineteenth century was treated as, and had the appearance of, mulk or waqf properties. It was in view of these developments that Muhammad Ali undertook to reorganize the system of land tenure in Egypt, and the underlying principle and justification of his reorganization was a reassertion of the state’s interest in those lands. Valid Shariʿah mulk or waqf properties, properties to which the state could not legally claim title, appear to have been very limited in area, being confined primarily to nonagricultural lands in urban centers and villages. There is no indication that Muhammad Ali included such lands in his initial reorganization plans. He was concerned principally with the control of agricultural lands, by far the most valuable resource of Egypt, and he justified his acquisition of control in terms of traditional concepts and practices relating to state ownership of such land. The basis of Muhammad Ali’s reorganization of the existing system of land tenure in Egypt was a cadaster made in 1813 that encompassed most of the cultivable land in that country, including lands confiscated from former Mamluk tax-farmers.1 On the basis of that cadaster, he redistributed a great portion of the agricultural land in Egypt in small holdings among the peasant cultivators, whose rights and interests in those holdings were narrowly restricted and closely regulated. A tax, a kharaj, was levied on these lands, from which, and consistent with earlier Islamic practices, they came to be known as kharaji lands. In addition to kharaji holdings, there were created or confirmed other holdings of state-owned land, the rights in which were also defined and regulated by the state. In some cases, the former tax-farmers were permitted to retain their usiyahs as tax-exempt life estates. Another kind of tax-exempt holding, known as a masmuh, was granted

40   Traditional Islamic Law in the Modern Era

to local dignitaries in each village in consideration for services to the central government. In addition, the holders of rizqahs were permitted to retain possession of their landholdings, subject, however, to the payment of a tax. Another category of land, known as the abʿadiyah, comprised land excluded from the original cadaster because it was not immediately cultivable, which was subsequently given out in tax-exempt concessions conditional on its vivification and development. In accordance with traditional Islamic practices, the rights and interests attaching to these newly defined holdings of state-owned land were governed by Kanun law. This law was contained in a series of statutory enactments promulgated during the first half of the century, culminating, in 1858, in a comprehensive Land Law, the Saʿidiyah, that governed land tenure in Egypt until and subsequent to the introduction of the Western Civil Code system.

Kharaji Lands The most significant change effected by Muhammad Ali was his creation of a form of landholding based on a widespread distribution of state lands to peasant cultivators in whose names these lands, kharaji lands, were registered. Since most of the land in Egypt was so distributed, the immediate result of this change was the removal of the intermediate class of landholders, an established component of the feudal system of tenure for centuries, and the substitution of the state, in the person of Muhammad Ali, as landlord of most of Egypt. At the lowest level, the property rights of the peasant were not radically changed: his land was registered in his name, but his rights in it were narrowly limited. His interest was not transmissible by inheritance, but returned to the state upon his death; nor could it be sold or otherwise transferred by him during his lifetime. Even his powers of enjoyment were severely limited, for the landlord, Muhammad Ali, exercised close control over such factors as the kind and quantity of crops that could be grown on the land. Nevertheless, the establishment of this form of kharaji tenure gave the peasant a recognized property interest in his own name and thus established a basis for the expansion of this interest in later years.2

Traditional Islamic Law in the Modern Era  41

The first stage in this expansion occurred under the Land Law of 1846, the first general statute governing kharaji lands and defining related property interests.3 That law permitted the kharaji landholder to cede his interest in the land to a third party, provided that the transfer was made before witnesses or by means of a legal document. The law also provided that the holder could use his property as security for his debts by permitting him the right of gharuqah. The gharuqah was, in essence, a possessory pledge, similar to the Shariʿah pledge, whereby the creditor entered into possession of the property of the pledgor and applied the income from the property against the amounts due on the debt, remaining in possession until the debt was paid.4 The Law of 1846 further strengthened the property interest of the kharaji holder by permitting him to retake possession of his land in certain cases where possession had been lost. If the holder had abandoned the land and it was subsequently being cultivated by another party, or if the land had been taken by the state for nonpayment of taxes and subsequently transferred to a third party, the original holder was given the right to retake possession of the land, subject to certain conditions such as the payment of taxes in arrears. There was apparently no limit on the time within which such a claim for repossession could be made; the second cultivator thus could not acquire prescriptive rights over the land, and he remained always open to long-term claims against his possession.5 The second Land Law, of 1854, protected such a subsequent cultivator by prescribing a limit of fifteen years on the time within which any action could be brought for possession of kharaji lands. In effect, a fifteen-year period of adverse possession, or statute of limitations, was provided in such cases. The second Land Law also further extended the rights of kharaji holders in general by providing for the transmission of their property interest upon their death to their male heirs and, under certain conditions, to their female heirs. Within a few years after the enactment of the second Land Law, one of the personal restrictions on the peasant was removed by a law permitting him to abandon his land if he became unable to cultivate it and pay his taxes. Prior to that time, the peasant was legally forbidden to leave his land, although in practice he was often forced to because of oppressive taxes or abuses by local officials.6

42   Traditional Islamic Law in the Modern Era

In 1858, the third Land Law was promulgated.7 Known as the Saʿidiyah (derived from the name of the incumbent ruler, Saʿid), this fundamental law clarified and revised the law applicable to all categories of state-owned land. With respect to kharaji lands, it contained the following important provisions: 1. Upon the death of a kharaji landholder, his land was to pass to his heirs, male or female, according to the apportionment of shares established by the Shariʿah. Such a right of transmission was not technically the right of inheritance established under the Shariʿah, but was a right conferred by statute—a Kanun law applicable to state lands—that was defined, with respect to heirs and their legal shares, in terms of the Shariʿah. Such inheritance was permissible only on condition that the heirs were able to cultivate the land and pay the kharaj (art. 1). 2. The right of the holder to transfer his interest to a third party was confirmed and clarified. The interest itself was described in the law as a usufruct (manfaʿah), and the means of transfer were described in terms traditionally applicable to state-owned lands, that is, firagh, nuzul, or isqat, and not in terms of transfers made under the Shariʿah, such as sale or gift. Such a transfer was subject to the approval of the state and had to be effected by means of a legal document issued by a local court (art. 10). 3. The right of gharuqah, the right to transfer possession of land in connection with a possessory pledge, was confirmed, subject to certain conditions (art. 8). 4. The statute also recognized and regulated what appears to have been a customary practice at that time: the leasing of kharaji land to third parties. The statute permitted such leases, but required that their duration be from one to three years, renewable under specified conditions, and that they be made for purposes of cultivation only (art. 9). 5. The law provided that if a kharaji landholder had been in possession of his land for a period of five years, during which time he paid the kharaj due, no claims against him for possession of the land could be heard in the courts. In effect, the state prescribed a five-year statute of limitations on such claims. The Saʿidiyah itself declared that the rule was derived from the Shariʿah, which was said to provide that the

Traditional Islamic Law in the Modern Era  43 interest of a holder of the right of usufruct in state land terminated after a three-year period of abandonment. The five-year period adopted in the 1858 law was said to be based on prevailing customary usage (art. 4). 6. Kharaji holders who made property improvements on their land, such as buildings, waterwheels, or orchards, were given full rights of disposition over such properties. In effect, the properties were assimilated to private property, except that they could not be constituted in waqf without the consent of the state (art. 12). 7. No provision was made in the Saʿidiyah or its predecessors regarding any right of preemption vesting in the neighbor of a kharaji holder. However, the principle underlying the right of preemption was recognized in the 1858 law by granting certain rights of preference (awlawiyah) in cases where land had escheated to the state and was about to be sold to private parties. In such cases, inhabitants of the same locality or neighbors of the original owner were entitled to buy the land at a fixed price, subject to certain conditions (art. 3). 8. The law relating to the expropriation of land by the state was clarified. In the event that kharaji land was expropriated for public works, the holder of the land would be entitled to have the kharaj tax on the expropriated land lifted, but he would receive no other compensation. In cases where extreme hardship was shown, the expropriated holder could be granted another kharaji holding. As regards expropriation of mulk land, however, the rule was different: the owner of such land was entitled to monetary compensation or an equivalent parcel of land (arts. 10, 11, and 16). 9. Finally, the Saʿidiyah provided detailed rules governing the status and disposition of lands created or displaced by the action of the waters of the Nile (art. 23).

Although the Saʿidiyah continued to be the basic statute governing land tenure in Egypt until the adoption of the Civil Codes, several laws were enacted subsequent to 1858 affecting kharaji lands. Among those laws was a Decree of 1868 that granted or explicitly confirmed the power of testamentary disposition in a kharaji holder, enabling him to transmit his property by will. That decree also explicitly provided

44   Traditional Islamic Law in the Modern Era

that kharaji land could not be constituted in waqf without the consent of the state.8 Another statute promulgated during this period was the Law of the Muqabalah of 1871.9 By that year, Egypt had incurred an enormous external debt, and the Muqabalah was one of several devices employed to obtain immediate funds for the payment of that debt. The law provided, in effect, that if a property holder, of whatever kind, paid his taxes six years in advance, his tax rate would thereafter be decreased by one-half. In addition to a reduced tax rate, the statute offered incentives in the way of increased property rights to the holders of various categories of land. With respect to kharaji holders, however, these incentives were limited to a confirmation and registration of the rights already acquired under existing laws. Accordingly, although the Muqabalah was of great importance for other kinds of property interest, it did not significantly affect the legal status of the kharaji holdings.10

Masmuh Lands When kharaji holdings were distributed on the basis of the 1813 cadaster, a certain portion, approximately 5 percent, of such land was set aside in each village for the use of local sheikhs and notables.11 The land was given in return for services to be rendered by these individuals to the state, such as the housing and entertainment of passing government officials. The lands were known as Masmuh alMashayikh or Masmuh al-Masatib and were exempt from taxation. The holders of such land were expected to exploit it by leasing it or entering into sharecropping agreements with the peasants. They abused their rights, however, by employing the corvée to force the peasants to work the land without compensation. As a result of such abuses, the state in 1857 imposed the highest prevailing rate of kharaj on those lands; and in the next year it terminated the concessions and granted the property interests in the land to the persons then cultivating it. In most cases, these were the local peasants. The holdings thus became kharaji holdings and were assimilated to the general class of kharaji lands.12

Traditional Islamic Law in the Modern Era  45

Rizqah Lands The precise legal status of the properties known as rizqahs in the beginning of the nineteenth century is not entirely clear. Originally, the rizqah appears to have been in the nature of a pension based on the income from a specified area of land. On this basis, it was often treated as a tax-exempt life estate or right of usufruct in the land itself. Such a right could have been acquired by means of a state concession or by an act of waqf on the part of the state. In either case, it would appear that, at least with respect to the rizqahs existing in Egypt at the beginning of the nineteenth century, such grants by the state did not transfer a right of ownership (or raqabah) in the land itself to the rizqah holders. Yet it appears to have been a common practice for such holders to convert their holdings, contrary to the terms of their concessions and to the Shariʿah itself, into mulk or waqf properties.13 Muhammad Ali and his successors operated on the assumption, apparently a valid one, that all land held as a rizqah had originally been a grant of the usufruct only and, accordingly, that title to such land remained in the state. On this assumption, Muhammad Ali forbade the holders of these lands to alienate them by constituting them in waqf. Furthermore, he imposed a kharaj tax on all lands held as rizqahs, even where such lands had previously been converted to waqfs. As compensation for the imposition of this new tax, he granted to each holder of such land a pension (faʾid) from the state treasury for the duration of his life. Except for these changes, the property rights of the rizqah holder appear to have remained the same as they had been prior to Muhammad Ali’s reorganization.14 In 1858 the Saʿidiyah provided that rizqahs would thenceforth be deemed to be kharaji land (art. 25). The former rizqah holder was allowed to retain his government pension, but he was not necessarily given any rights in the land itself. Such rights were granted, in accordance with other provisions of the Saʿidiyah, to whoever had been in possession of the land, even if it had been constituted in waqf, for a period of five years and who would undertake to pay the kharaj. Accordingly, after 1858 the rizqah as a form of land tenure was abolished; the only property interest left to former rizqah holders was a right to a pension from the state treasury.

46   Traditional Islamic Law in the Modern Era

Abʿadiyah Lands All of the noncultivable land excluded from the cadaster of 1813 were generally described as abʿadiyah, or “excluded” lands. In accordance with Islamic law, these wastelands were deemed to be the property of and subject to the disposition of the state. Following traditional Islamic practice, Muhammad Ali began to distribute these lands with a view toward bringing them back into cultivation by means of vivification by private parties. The first grants—the earliest reported grant dates from 1829—were made as rizqahs, in the general meaning of “concessions,” and were exempt from taxation. The grants were made subject to various conditions relating to their vivification and restricting the grantee’s rights of disposition over the land; in some cases, the holdings were not exempt from taxation or were only partially exempt. In later periods, as the state came into possession of other kinds of land as a result of escheat, expropriation, or abandonment, these too, were often granted as concessions in the same manner as abʿadiyah land. Since the principal purpose in making such grants was the development of unproductive land, the grants were usually made to parties who would be able to undertake the expenditures necessary for such development. Accordingly, abʿadiyah grantees were generally members of the wealthy ruling class of Egypt. In some instances, however, grants were also made to the bedouin tribes, and in those cases the purpose of the grants was not only the development of land but also the settlement of the nomadic population. By the 1840s, an increasing number of grants had also been made to members of the royal family, including Muhammad Ali himself. These royal holdings became quite extensive and were regarded as a separate class of abʿadiyah land, known as jifliks (Turkish chiftlik), or “farms.”15 In 1836 the rights of the holders of such abʿadiyah grants were defined by law.16 In effect, the grantee was given a life interest in the property that, upon his death, was transmissible to his direct male descendants and upon their extinction to his enfranchised slaves and their descendants. It appears that this life interest was limited to the use of the land and did not include the right of transfer to a third party, with one exception: a holder approaching old age and having no descendants was permitted to convey his interest by means of an inter vivos transfer (fi-

Traditional Islamic Law in the Modern Era  47

ragh), provided that the donee was capable of performing his obligations under the concession. The law also prescribed that deeds, conforming to the above provisions, would be issued by the state treasury. In 1842 it was decreed that, since the restrictions on the property rights of the holders of tax-exempt grants were inconsistent with ownership rights as defined in the Shariʿah, such restrictions should be removed.17 New deeds were issued in which no limitations were placed on the property interest granted: in effect, the holders of such interests could dispose of their property as they wished, including transfers by sale or gift. Although the decree did not explicitly permit such lands to be constituted as waqfs, it appears that it was interpreted to include such a power of alienation.18 Until 1854 most of the abʿadiyah grants continued to be exempt from taxes. In that year, all land that had theretofore been exempted, including the royal jifliks, were made subject to taxation.19 The new tax, however, was not the kharaj, the tax levied on state lands; the new tax was called an ʿushr, the Shariʿah tax applicable to mulk property of Muslims. From that time on, such abʿadiyah lands were also known as ʿushri lands. In 1858 the Saʿidiyah clarified the status of these abʿadiyah grants and explicitly provided that such land was the private property, the mulk, of the owner. The owners were afforded full rights of disposition in the land, including the right to constitute it in waqf (art. 25). As mulk land, these properties qualified under other provisions of that law applicable to mulk properties, such as the granting of the right of compensation in the event of expropriation by the state. In 1871 the Law of the Muqabalah in effect confirmed those rights and also provided that, in certain cases where abʿadiyah owners did not hold deeds or where their property rights were otherwise subject to question, they would be granted full rights of mulk ownership upon payment of the Muqabalah advance tax as provided in that law (arts. 10–11).

Usiyah Lands The usiyah had been a portion of land conceded to the tax-farmers, in addition to their tax-farms, for their own use and enjoyment. When

48   Traditional Islamic Law in the Modern Era

Muhammad Ali confiscated the tax-farms, he permitted certain of the former tax-farmers, primarily those in Lower Egypt, to retain possession of their usiyahs, and he exempted such holdings from taxation. In addition, he granted the former tax-farmers an annual pension (faʾid) from the state treasury in compensation for the loss of their income (also known as faʾid) from their confiscated tax-farms. Since the new pension was based on what the tax-farmers had been reporting to the government as their income—usually an amount much lower than actual income—the new payments from the Treasury were not, in fact, compensation for the former payments and had little relation to the actual value of the land.20 Both the pension and the use of the land, the manfaʿah, were granted only for the duration of the holder’s life: at his death, the pension was to terminate and the land was to return to the state. However, many of the usiyah holders, desiring to transmit their property interest to their heirs and following the traditional pattern established by property holders throughout Islamic history, attempted to constitute their property in waqf. The state subsequently recognized this problem and in 1855 acted to remove one of its causes by permitting usiyah interests to pass to the holder’s male or female descendants upon his death.21 In 1854 the law that imposed an ʿushr tax on all lands not otherwise subject to tax was applied to the usiyahs as well as to abʿadiyah lands.22 That law did not affect property interests in usiyah land, however, and such land was not assimilated in any way to the abʿadiyah lands. The distinct status of the usiyah was maintained and confirmed in 1858 in the Saʿidiyah, which regarded the usiyah as more in the nature of kharaji than abʿadiyah land, on the ground that it had originally been a grant of state land (art. 24). In the following year, 1859, it was decreed that when an usiyah interest was transmitted to the descendants of a holder, those descendants would take the property in accordance with the Shariʿah rules on inheritance.23 The Law of the Muqabalah of 1871 had its greatest impact on the usiyah holdings. That law provided that if the advance tax were paid by the usiyah holder, he would be given full rights of disposition in his land, including the right to constitute it in waqf, and the land would accordingly be assimilated to abʿadiyah land. Consistent with such assimilation, the law also provided that the government pension would

Traditional Islamic Law in the Modern Era  49

thenceforth be terminated (art. 9). Consequently, those usiyah holders who paid the Muqabalah became owners of their lands, and the lands became mulk property.

T he T raditional S ystem

of

L and T enure P rior

to the

C ivil C odes

In 1875, when the Civil Code of the Mixed Courts was promulgated, the law governing land in Egypt was essentially the traditional Islamic law of property, both the Shariʿah and Kanun law, as it had developed in that country. Significant changes in landholdings had occurred in the first part of the nineteenth century, and the law in force in the latter part of the century reflected those changes, but the process of change had taken place within the context of traditional Islamic law. Thus, in 1875 land held in the possession of individual holders fell within and was governed by the rules applicable to the three basic forms of land tenure that had existed in traditional Islamic property law: state lands, mulk lands, and waqf lands.

State Lands The land program initiated by Muhammad Ali completely transformed the various kinds of landholdings that were based on state ownership. In 1800 the state theoretically held title to most of the lands of Egypt. The degree of control it was able to exert by virtue of its ownership varied, but in many cases its control was negligible. The basis of Muhammad Ali’s program was the reassertion of the state’s rights in these lands as well as the imposition of its direct control over them. The net effect of the program was the clarification, as well as the more stringent regulation, of the property interests of individual holders of state lands and of the relationship of such holders to the state. As the program developed, it also led to an increase in individual property rights in state-owned land as well as a diminution in the proportion of total land area remaining in state ownership. Consistent with traditional Islamic practice, the enjoyment and disposition of state-owned lands were governed by rules based on

50   Traditional Islamic Law in the Modern Era

Kanun law, the administrative law of the state, and not by the rules of property law in the Shariʿah. The rights of enjoyment accorded to holders of state-owned lands were defined either by conditions imposed in the original concessions or by generally applicable Kanun law. For example, the state usually retained the right to retake the property or concession granted, or expropriate it, without compensation. In the case of kharaji lands, this right was prescribed by general law and was also a condition imposed under the terms of the kharaji deeds of concession.24 In like manner, the rights of disposition over the property were rights granted by the state in its capacity as landlord, not rights guaranteed to all Muslims by the Shariʿah. For example, the grantee’s right to sell or otherwise cede his property interest was a right of firagh or nuzul, traditional Kanun conveyances, and not the rights of sale or gift within the meaning of the Shariʿah. Similarly, his right to pledge his property interest as security for his debts was the Kanun right of gharuqah, not the Shariʿah right of pledge. Where a right of inheritance was granted, it was often a right of transmission to descendants designated in accordance with rules prescribed by the state, not the Shariʿah; and even where distribution to heirs was based on Shariʿah rules of inheritance, such distribution was made subject to certain conditions such as the prior permission of the state or the solvency of the heirs.25 Although the law governing the disposition of state lands in the possession of private parties was the administrative Kanun law, it is apparent that such law was deemed to be based on and consistent with the Shariʿah. In this connection, it is significant that in almost every law governing state land promulgated during this period, reference was made to the Shariʿah. In some cases, a specific Shariʿah rule was referred to as a source for the rule adopted by statute; in others, the reference was limited to general principles of the Shariʿah and to their application to the case in point. Such references manifested the legislators’ concern that the Kanun law should be consistent with, or at least appear to be consistent with, traditional Islamic law. It is also apparent that they regarded Kanun law in general, in addition to the Shariʿah, as part of that traditional Islamic law.26 Although Muhammad Ali had established a system of courts having jurisdiction over most cases governed by Kanun law, it is not clear

Traditional Islamic Law in the Modern Era  51

whether cases involving state lands were heard in those courts. It appears that at least some questions concerning kharaji lands, such as the registration or issuance of title deeds, were under the jurisdiction of the traditional Shariʿah Courts, the Mahkamahs. Furthermore, since those courts had general jurisdiction over real property matters, it appears likely that such jurisdiction included cases involving kharaji lands, at least cases in which the amount involved did not exceed a prescribed maximum. If there was such jurisdiction, the statutory provisions governing kharaji lands would have been applicable, and in the absence of such provisions, the Shariʿah, as the basic law of the Mahkamahs and the general law of the land, would have been applied.27 As a result of Muhammad Ali’s land program and its modification by subsequent legislation, there existed in Egypt at the time of the adoption of the first Civil Code a large category of lands belonging to the state and held in the possession of private parties. Almost all of the lands in that category were kharaji lands, which by that time included the former masmuh and rizqah holdings. In addition to kharaji lands, however, there were other lands in the possession of private parties that also belonged to the state. These were lands that, for various reasons (such as nonpayment of the Muqabalah advance tax in the case of usiyah holdings), had not been assimilated to the ʿushri category of private property. Such holdings of state-owned land encompassed most of the arable land in Egypt: in 1875 it was estimated that kharaji lands alone comprised about 3.5 million faddans out of approximately 5 million faddans of total arable land.28 While the property rights of kharaji holders had been expanded during the course of the nineteenth century to the point where they were comparable to private property rights, significant differences remained between the two types of land tenure. A kharaji holder, for example, could not constitute his land in waqf, he was subject to expropriation without compensation, and his right could lapse if he did not exploit his land for a period of five years. Furthermore, even those property rights that he did enjoy and that paralleled those of a mulk owner were seldom as broad as the mulk rights of ownership. In many cases, the exercise of kharaji rights of disposition were subject to restrictive conditions, including, for example, the necessity for government approval.

52   Traditional Islamic Law in the Modern Era

In addition to land held as kharaji or related holdings deriving from state ownership, the state had ownership rights in other kinds of land that reflected the traditional system of Islamic land tenure. For example, the wastelands originally classified as abʿadiyah were in essence mawat lands of the Shariʿah. State concessions of these lands to individuals were made in much the same manner and subject to the same conditions, primarily those relating to vivification, as had been the practice for centuries. In addition, the state also owned cultivated land that it directly held and controlled. These were the “private” lands of the state and included all lands in its direct possession as a result of expropriation, escheat, forfeiture, or abandonment. They also included the private estates of the ruler of Egypt and the royal family, primarily the jiflik estates, for there was little distinction drawn, especially under Muhammad Ali, between the private domain of the state and the personal property of the individual sovereign. As for the “public domain,” or the public lands and servitudes of Islamic law, it appears that these properties were also closely regulated by the state in connection both with its regulatory functions and with its proprietary interests in the land. Where such regulation was not prescribed by law or administrative ruling, it appears that customary Islamic law was applied, especially in the local Mahkamahs.29

Mulk Lands: Private Property Although it is clear that private property was recognized in Egypt at the beginning of the nineteenth century, it appears that this form of land tenure was principally confined to urban areas or to lands upon which buildings or other property improvements were constructed: very little of the agricultural land under cultivation was held as private property.30 During the course of the century, however, the property rights of the holders of some classes of state lands began to approximate those of private property holders. By 1858 the property rights of abʿadiyah holders were confirmed as full rights of ownership by the Saʿidiyah, and these predominantly agricultural lands—then also known as ʿushri lands—consequently became mulk property. In addition, the Saʿidiyah specifically provided that property improvements

Traditional Islamic Law in the Modern Era  53

constructed on kharaji lands would become the private property of the landholder. In general, clear distinctions were drawn in that law between private property holdings and holdings of state-owned land, particularly with respect to expropriation: whereas state-owned lands could be expropriated without compensation, mulk lands could not be (arts. 10, 11, and 16). After 1871, by operation of the Law of the Muqabalah, another class of property holders was accorded rights of private property. These were the holders of usiyah lands who paid the Muqabalah tax and whose lands were consequently assimilated to abʿadiyah or ʿushri lands, thus becoming the private property of their holders. Accordingly, immediately prior to the adoption of the first Civil Code in 1875, lands held as private property comprised urban lands in general, buildings and improved properties in rural areas, and the agricultural ʿushri lands, including most of the former abʿadiyah and usiyah holdings. As an indication of the extent of these properties at that time, it was estimated that in 1875 1.2 million faddans were ʿushri lands out of a total arable land area of 5 million faddans.31 The rights of enjoyment and disposition in all of these mulk lands were governed by the rules of property law in the Shariʿah. There is no indication in any law or regulation promulgated during that period that such lands, once they had become mulk lands, were to be governed by any law other than the Shariʿah. Those laws and regulations were concerned primarily with state-owned lands or with the conversion of such lands into mulk lands, and they did not purport to regulate the property rights of mulk owners whose lands were clearly mulk properties. Cases involving such properties were heard in the Mahkamahs where, in the absence of applicable legislation or administrative regulation, the Shariʿah was presumably applied as the Common Law of the land.32

Waqf Lands While the course of development of waqf lands in the early nineteenth century is not entirely clear because of the practice of constituting rizqah and other lands in waqf, it appears that lands held under valid Shariʿah waqfs were not affected by Muhammad Ali’s initial reorganiza-

54   Traditional Islamic Law in the Modern Era

tion. Rizqah lands purportedly held in waqf do not appear to have been valid waqfs according to the Shariʿah. They were “unsound” waqfs— waqf ghayr sahih—recognized only by the Kanun law in connection with state-owned lands. Thus, reports of Muhammad Ali confiscating waqf properties in the early years of his rule are probably based on his confiscation of the agricultural rizqah holdings, many of which had been constituted as waqfs according to the Kanun law, but not as valid waqfs according to the Shariʿah.33 It was not until 1846 that Muhammad Ali attempted to regulate the property interests in waqf lands; and even at that late date, after having established his power firmly, he was careful to base his actions on the Shariʿah. He requested and received a legal opinion from a prominent Shariʿah jurisconsult holding that the ruler of the state could prohibit the creation of waqfs where the waqfs were employed to attain unworthy or illegal objectives, such as disinheritance of Shariʿah heirs or the avoidance of creditors’ claims. On the basis of that opinion, Muhammad Ali forbade the future creation of waqfs, allegedly as a protection against the abuses enumerated in the opinion.34 The effect of this prohibition, however, was negligible. In the case of waqfs of buildings and of urban land, it appears never to have been executed; in the case of agricultural lands, it was effective for a short time only. Within five years, 3,000 faddans were registered as waqfs in one year in the Cairo Mahkamah alone.35 In 1858 the Saʿidiyah clearly reflected the creation of waqfs and implicitly sanctioned such actions. That law also explicitly permitted holders of abʿadiyah lands, as owners of mulk property, to constitute their lands in waqf (art. 25). Muhammad Ali was more successful in extending state control over waqf properties by means of changes he effected in the administration of charitable waqfs. Such waqfs had traditionally provided substantial financial support for such purposes as public education, religious institutions, health facilities, and public works and had always been vested with a public interest and subject to some degree of government supervision through the courts. Muhammad Ali brought many of these waqfs under the direct management and control of the state by the establishment, in 1835, of a governmental agency responsible for their administration. Although this initial state administration did not last for more than a few years, it was reactivated in 1851, and in 1864 the

Traditional Islamic Law in the Modern Era  55

administration was vested in a separate ministry of the government established for these purposes (whose jurisdiction until 1876 also included public education).36 Although many charitable waqfs were thus brought under governmental administration, family waqfs, with some few exceptions, were not subject to this kind of state control. As always, those waqfs constituted a separate form of land tenure that was governed by the Shariʿah law of waqf as it existed in the nineteenth century and as administered in the Shariʿah Courts of ordinary jurisdiction—the Mahkamahs.

67 3

T he I ntroduction of a W estern C ivil C ode S ystem

in the nineteenth century took place in an environment receptive to many kinds of foreign influences. This situation was in part a consequence of Muhammad Ali’s policy of encouraging the introduction and adoption of Western ideas in Egypt. Another contributing factor was Egypt’s juridical status as part of the Ottoman Empire: subject to Ottoman sovereignty, Egypt was also subject in many respects to Ottoman laws, and many of those laws in turn reflected Western influences. Moreover, since the foreign relations of Egypt were governed by the Ottoman Porte, the Capitulations, the series of treaties extending to Western nations extraterritorial judicial privileges in countries of the Ottoman Empire, were also applicable to Egypt. As a result, there existed in Egypt, together with the Egyptian legal system, a foreign system of courts applying foreign law to cases arising within that country. Yet despite the existence of these foreign influences, the development of Egyptian property law in the nineteenth century was essentially the extension of a territorial Islamic institution, unmodified by foreign elements. That area of the law was not significantly affected by such influences until the latter half of the century, when the Western powers began to intervene directly in the internal affairs of Egypt

t h e d e v e l o p m e n t o f e g y p t i a n l aw

The Introduction of a Western Civil Code System  57

and when, as a result of the abuses of the Capitulatory privileges, a reform of the entire Egyptian legal system was undertaken. The fundamental principle underlying that reform was Westernization; its impact reached all areas of the law, and it effected a radical change in the Egyptian legal structure. Yet the change was not so complete as it may have appeared: Egyptian law—even the Civil Law, which was then assumed to have become, in effect, the Code Napoléon—retained many of its traditional Islamic elements.

O ttoman S overeignty

and the

C apitulations

Prior to 1841, the juridical status of Egypt under the sovereignty of the Ottoman Porte remained essentially unchanged from what it had been in the eighteenth century. With respect to Land Law, it appears that the Porte continued to have the basic legal authority to promulgate laws regulating the system of land tenure in Egypt. However, the political situation during much of that period was such that the Porte would have had difficulty either in preventing Muhammad Ali from reorganizing that system or in attempting to enforce the execution of Ottoman Land Law in Egypt.1 Nevertheless, in other areas of the law, such as the civil status of Ottoman subjects, the Porte’s authority was both asserted and recognized. The principles of the Ottoman Imperial Edict of 1839 (the Hatt-i-Sherif of Gulhane), relating to civil rights, were clearly applicable to Egyptians as well as to other Ottoman subjects. Muhammad Ali agreed to abide by those principles, although he reserved to his own interpretation the matter of their application to specific cases and their enactment into specific laws.2 A change in the juridical status of Egypt occurred in 1841 by virtue of a firman from the Porte vesting in the descendants of Muhammad Ali hereditary rights to the governorship of Egypt. That firman provided that the provisions of the Gulhane Edict of 1839, as well as the provisions of all treaties entered into by the Porte with foreign powers, would be executed in Egypt. An early version of the firman had also provided that all laws promulgated and to be promulgated by the Porte would be similarly executed, but this provision was deleted in later versions, which provided instead that all administrative regulations

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issued by the Porte would be applicable in Egypt “in accordance with the requirements of the locality and the principles of justice.”3 It was apparently on the strength of this qualifying clause that the Egyptian Land Laws were thenceforth enacted as modifications of Ottoman law “in accordance with the requirements of the locality and the principles of justice.”4 The validity of such an interpretation (or, at least, its acceptance by the Ottoman authorities) was indicated in a firman of 1867, which confirmed, clarified, and extended the powers of the government of Egypt. In reviewing existing legislative powers, the firman stated, in effect, that the internal administration of Egypt was vested in the Egyptian government.5 Such powers were again confirmed and extended in 1873, by a firman that granted complete legislative autonomy with respect to the internal affairs of Egypt.6 Consistent with the Egyptian interpretation of the 1841 firman, one of the most important Ottoman laws of the modern era, the Land Law of 1858, was not put into force in Egypt. Its place was preempted, as it were, by the Egyptian Saʿidiyah Land Law of the same year. Nor was the Ottoman Majallah, a compilation of Civil Law rules of the Shariʿah in a Civil Code format, applicable in Egypt. By the time of its final completion in 1877, provision had been made for an Egyptian Civil Code based on Western sources. On the other hand, and again consistent with the interpretation of Egypt’s juridical position under the firman of 1841, some Ottoman laws on land were adopted and applied as the law of Egypt even after the granting of internal autonomy in the firman of 1867. For example, the Ottoman Law on Mines (April 16, 1869) and the important Ottoman law regulating the ownership of land by foreigners (June 10, 1867) were deemed to be part of the Land Law of Egypt.7 With respect to the latter, its application in Egypt may be explained by its touching upon foreign relations, an area in which the authority of the Porte continued to be recognized as supreme. This authority of the Porte in foreign affairs was an important factor in the introduction of Western concepts into other areas of Egyptian law where foreign influences were felt long before Land Law was similarly affected. This was especially true in the area of Commercial Law where, due to increasing contacts with the West in all parts of the empire, foreign interests were often involved. In 1845 special courts

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were organized having jurisdiction over commercial cases arising between Egyptians and foreigners, and in 1856 the law applied by these courts was based on an Ottoman law that in turn was derived from the French Code of Commerce. From that time on, virtually all of the more important commercial cases were governed by the principles of French law and French jurisprudence.8 Courts such as those established in 1845 to hear cases between foreigners and Ottoman subjects—that is, “mixed” cases—were known as Mixed Courts. They were territorial, National Courts, organized under the laws of the Ottoman Empire. They were established primarily to accommodate foreign interests, however, and in this respect they were part of a judicial system organized pursuant to the series of international agreements collectively known as the Capitulations. Those agreements provided that nationals of the Western signatory powers residing in the Ottoman Empire would in certain cases remain subject to the jurisdiction of their respective states. To the extent that such jurisdiction was exercised by consular representatives, foreigners residing in the empire were tried before their own Consular Courts. The general rule in the Ottoman Empire provided that cases involving foreigners of the same nationality would be heard in their Consular Court; cases involving foreigners of different nationalities would be heard in the defendant’s Consular Court; and cases involving foreigners and Ottoman subjects would be heard in Ottoman courts—either Mixed Courts, where they existed, or ordinary Ottoman tribunals.9 In Egypt, the rule differed. As a result of the Egyptian policies encouraging Western contact and of the practices permitted in connection therewith, the jurisdiction of the territorial Egyptian courts over foreigners was restricted, in effect, to actions in which the defendant was an Egyptian. The principle established was that the defendant’s court had jurisdiction in all cases: actor sequitur forum rei. Consequently, a Consular Court had jurisdiction over all cases in which its nationals were defendants, regardless of whether the plaintiff was an Egyptian. Furthermore, since Consular Courts normally applied the laws of their respective countries, Egyptian plaintiffs in mixed actions were governed by foreign law, and depending upon who was being sued, any plaintiff could be subject to any one of seventeen different jurisdictions.10

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With particular reference to cases involving real property, the Ottoman Porte was careful to provide, in the legislation of 1867 permitting foreigners to own such property, that such cases would be tried in Ottoman courts under Ottoman laws, regardless of the nationalities of the parties, and even if all parties were of the same foreign nationality.11 In Egypt, that law had no real effect, for foreigners had been permitted to own property in that country since the time of Muhammad Ali, and the practice had developed that even in real property cases the rule of actor sequitur forum rei applied.12 Thus, a case involving property rights in a single parcel of Egyptian land might possibly be heard in several different courts and according to several different rules of law. Only if the defendant was an Egyptian would it be heard in an Egyptian court, which, in the area of property law, was normally the Shariʿah Mahkamah. Despite the existence of the Capitulatory system and of foreign Consular Courts applying foreign law, the rules of Egyptian Land Law as applied in the Egyptian National Courts reveal no evidence of being derived from or modified by Western legal concepts.13 Yet, although there appears to be no direct relationship between the foreign law of the Consular Courts and the traditional law of the Egyptian courts, the judicial system existing under the Capitulations—or more accurately, the abuse of that system—was the principal cause of the introduction of Western legal institutions into the national law of Egypt. The introduction of those institutions was direct, immediate, and pervasive: it transformed the basic structure of the Egyptian legal system.

T ribunals of the R eform : T he M ixed C ourt S ystem The chaotic condition of judicial administration under the Capitulatory system of courts was recognized in the latter half of the nineteenth century as requiring thorough reform. A definitive proposal for such reform was contained in a report made in 1867 by Nubar Pasha, a minister in the Egyptian government, to the Khedive Ismail.14 After reviewing the abuses of the existing system of Capitulations and proposing its abolition, Nubar pointed out that the foreign powers would not agree to a

The Introduction of a Western Civil Code System  61

surrender of their Capitulatory rights unless they were accorded similar rights that would ensure the protection of their interests under a judicial system acceptable to them. Such a system clearly did not exist in the Egyptian National Courts. Nubar therefore proposed the creation of courts organized along the lines of the existing Mixed Courts of Alexandria and Cairo, to be staffed by foreign and Egyptian judges. Those courts would have jurisdiction over all mixed cases, regardless of the nationality of the defendant; such jurisdiction would extend to actions in Commercial, Civil, and Penal Law, except that real property cases would be left to the Egyptian courts. In commercial cases, he suggested that the courts apply the existing Commercial Law of Egypt, which was basically French law. In civil cases, the courts would apply a new Civil Code, which was then being drafted and which was described as a “reconciliation” of French and Egyptian law. Nubar’s proposal was circulated among the Capitulatory powers, where it met with little enthusiasm. It was only after several years of negotiations that his basic concept, the establishment of Mixed Courts to assume the jurisdiction of the existing Consular Courts, was accepted. During that time, studies and reports were made by international commissions, a definitive draft of proposal was negotiated by the Capitulatory powers at Constantinople, and permission was finally received from the Ottoman Porte for Egypt to undertake and enter into international agreements for these purposes. By the time the proposal was accepted by all the powers concerned, however, it had undergone considerable modification. Completely new codes were to be issued for use by the new courts; penal jurisdiction was to remain, with minor exceptions, in the Consular Courts; and, most important, mixed cases involving land were to be heard in the Mixed Courts, not the Egyptian courts.15

Mixed Courts The status of the new “Tribunals of the Reform,” as the Mixed Courts were originally called, was the same as that of Egyptian courts organized under and subject to Egyptian law: the Mixed Courts were not “international” courts. Yet their status under Egyptian law was also defined by the international agreements entered into between Egypt

62   The Introduction of a Western Civil Code System

and the fifteen Capitulatory powers that provided for their establishment. The practical effect of those agreements was to insulate the Mixed Courts from Egyptian regulation. For example, a majority of the judges were to be foreigners appointed, in effect, by the signatory powers with permanent tenure after a five-year probationary period (MO I §§2, 3, 5, 19). The laws that were to be applied by the courts were subject to approval by the signatory powers and could not be amended or modified without their agreement (MO I §34; MC §12). Furthermore, the courts were originally organized for a five-year period only, renewable at the option of the signatory powers (MO II §40).16 The jurisdiction of the new courts extended to mixed cases in Civil and Commercial Law, with limited jurisdiction over criminal cases. With respect to Civil and Commercial Law, the Mixed Courts could hear cases between Egyptians and foreigners and between foreigners of different nationalities. They could not, however, hear questions of personal status, such as inheritance, testament, capacity, civil status, marital status, or guardianship (MO I §9; MC §§4–5). The state was also subject to the Mixed Courts’ jurisdiction in certain cases. The government, the Dairas or royal estates, and members of the royal family were subject to their civil jurisdiction in litigation involving foreigners (MO I §10; MC §6); but such jurisdiction did not extend to cases involving land in the public domain or to administrative acts of the government except for acts infringing on rights acquired by a foreigner according to law (MO I §11; MC §7). With respect to cases involving land, the jurisdiction of the Mixed Courts was extended far beyond the limits envisaged by Nubar Pasha. Instead of vesting general jurisdiction over real property cases in the National Courts, the foreign powers gave the Mixed Courts jurisdiction over all such cases in which there was a foreign interest, regardless of whether the parties were all of the same nationality (MO I §9; MC §5). Furthermore, the Mixed Courts were given extensive jurisdiction over mixed cases involving waqf properties. They were explicitly denied jurisdiction to hear claims brought by foreigners for property held in the possession of charitable waqfs (MO I §12; MC §8), but there were no other limits to their jurisdiction in this respect except insofar as waqf cases were deemed to involve matters of personal status. Accordingly, jurisdiction over cases involving land was divided between the Mixed

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Courts and the National Courts, while the jurisdiction of the Consular Courts over such matters was completely abolished. The laws applicable in the Mixed Courts were primarily six codes that were drafted on the models of French Codes and accepted by all the signatory powers: Civil Code, Criminal Code, Code of Maritime Commerce, Code of Civil and Commercial Procedure, Penal Code, and Code of Criminal Procedure. Where those codes did not provide a rule of law applicable to a specific case, the judges were generally required to decide according to the principles of natural law and equity (MO I §34; MC §11): no reference was made to the Shariʿah as a basic source of law. At the same time that the new codes were published, the Egyptian government was also required to publish the existing laws governing the personal status of Egyptians as well as the laws governing lands, embankments, and canals (MO I §36). Although the Mixed Courts were not then required to apply those laws, it was later decreed, after agreement by the signatory powers in 1889, that the Mixed Courts would apply all laws of the Egyptian government relating to the regulation of lands, embankments, and canals, as well as to certain other matters such as the regulation of highways, public establishments, and police. However, such laws could be issued by the government only after consultation with the General Assembly of the Mixed Courts (in effect, the signatory powers), which would ensure that such laws did not contravene provisions of existing treaties.17 Accordingly, the laws applied by the Mixed Courts comprised not only the new codes, but also the laws passed by the Egyptian government and consented to by the signatory powers concerning lands, embankments, and canals, and certain related matters. In 1875 a small collection of Land Laws in force at that time, including the Saʿidiyah and Muqabalah, was published and presented to the Mixed Courts pursuant to the aforementioned provisions on publication. In 1892, after the extension in 1889 of Egypt’s legislative powers, a more extensive compilation of those laws was again published for the use of those courts.18

Consular Courts Since the international agreements establishing the Mixed Courts were essentially modifications of the Capitulations, the basic legal status of

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the Consular Courts after the reform continued to be defined by those earlier conventions. Basically, the Consular Courts retained jurisdiction over all matters that had not been transferred to the jurisdiction of the new courts, and they continued to apply their own national law in such matters. In civil and commercial cases, they continued to hear actions in which only their nationals were involved, although jurisdiction over mixed cases, regardless of the defendant’s nationality, was transferred to the Mixed Courts. Thus, the worst abuses of the principle of actor sequitur forum rei were corrected, and the Consular Courts were given no jurisdiction over any parties other than their own nationals. In addition, the Consular Courts lost jurisdiction to the Mixed Courts in all litigation involving real property, even if all parties to the case were their own nationals. In the area of Criminal Law, however, the Consular Courts retained most of their former jurisdiction. Only limited jurisdiction over certain criminal cases, such as minor misdemeanors, was transferred to the Mixed Courts (MO II §§6–9). The Consular Courts also retained jurisdiction over their own nationals in matters of personal status. The Mixed Courts had no jurisdiction in such matters, regardless of whether the party involved was an Ottoman subject or a foreigner.19

Native Courts Following the reform of 1875, matters not included within the competence of the Mixed Courts or the Consular Courts remained under the jurisdiction of the existing Egyptian courts. In effect, this jurisdiction encompassed all cases in which a foreigner was not involved. At that time, the Egyptian judicial system comprised three major court systems, each having its own jurisdiction. First, there was a system of courts organized by the government and having exceptional jurisdiction over specified cases, generally in the areas of administrative and Civil or Commercial Law. These were the Majlis Courts, the successors to the courts established by Muhammad Ali. They were, in a sense, courts established to apply the Kanun law of the state. Second, there was a system of courts, traditional in Islamic law, having jurisdiction over the personal status of non-Muslim Egyptians. These were courts

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established for and by each religious community, or “Millah.” Finally, there were the traditional Shariʿah Courts, the Mahkamahs, having jurisdiction over litigation involving the personal status of Muslims as well as ordinary residual jurisdiction over all cases not coming within the jurisdiction of other courts. It was clear, especially after the establishment of the Mixed Courts, that the national legal system was in need of reform. The desirability of such reform was enhanced by a belief on the part of the Egyptian government that if a national legal system similar to that of the Mixed Courts were established, the foreign powers would agree to the abolition of the latter and accept the jurisdiction of the new National Courts. It was on the basis of such a belief that the government appointed a committee in 1880 to draft legislation creating a national legal system along the lines of the Mixed Courts.20 The project was completed in 1881, and in 1883 the new National Courts, the “Native Courts” (Mahakim Ahliyah; Tribunaux Indigènes), were established. At the same time, six codes, similar to the codes of the Mixed Courts, were promulgated for use in the new courts. The jurisdiction of the Native Courts paralleled that of the Mixed Courts except that national jurisdiction over criminal cases involving Egyptians was much more extensive than the counterpart jurisdiction of the Mixed Courts. With respect to civil and commercial matters, the Native Courts were competent in all cases between Egyptian nationals and between such nationals and the state, subject to specific exceptions. For example, they could not decide questions relating to the ownership of the public domain lands, nor could they interpret or interfere with the execution of administrative measures; but they could hear property cases between individuals and the state and actions brought by individuals against the state with respect to administrative acts performed in violation of the law (NO §§15–16). In addition, questions relating to the public debt or to the imposition of taxes were outside their jurisdiction, as well as all questions relating to the constitution of waqfs, marriage and related affairs, gifts, testament, inheritance, and all other questions of personal status (NO §16). The substantive laws applicable in the Native Courts were the new codes, all other laws and decrees then in force to the extent that they were not inconsistent with these codes, and all laws and decrees that

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might thereafter be promulgated by the Egyptian government (NO §28). In the absence of an applicable provision of law in the codes, the judges were to apply principles of equity and, for commercial matters, commercial usages (NO §29). As in the case of the Mixed Courts, no reference was made to the Shariʿah as a basic source of law. Since the Native Courts were creations of the Egyptian government, that government was free to amend existing law, to promulgate new law, and to modify the jurisdiction of any of its courts without restriction, unlike its position with respect to the Mixed Courts. Accordingly, the Land Law applicable in the Native Courts was the Land Law of Egypt in effect in 1883, to the extent that it was not inconsistent with the Native Civil Code, and all Land Laws thereafter promulgated by the government. With certain exceptions, however, the Land Law applicable in both the Mixed Courts and the Native Courts was essentially the same: the Egyptian government never made any substantial modifications in the original Native Civil Code, and the supplementary statutes enacted by the government were generally accepted by the Capitulatory powers and made applicable to the Mixed Courts.

Mahkamahs Prior to the establishment of the Native Courts in 1883, the traditional Islamic courts, the Mahkamahs, were the ordinary courts of the land, vested with residual jurisdiction over all matters not assigned to other courts. Their organization in the early period of reform was based on a Law of 1856, the first law organizing these courts in the modern era.21 After the Mixed Courts were established, the Mahkamahs were reorganized under a new law issued in 1880.22 With the establishment of the Native Courts, however, all residual jurisdiction in civil and commercial matters passed from the Mahkamahs to those courts, and the Mahkamahs were left with general jurisdiction in matters of personal status only. In 1897 the Mahkamahs were again reorganized, and the system was modeled on the judicial organization of the Native Courts.23 The Mahkamahs’ jurisdiction in matters of personal status was a general jurisdiction in that it extended to all persons not explicitly subject to the jurisdiction of other courts, including foreigners not

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subject to the jurisdiction of Consular Courts and non-Muslim Egyptians not subject to the jurisdiction of Millah Courts. Accordingly, although most of the personal status cases heard before the Mahkamahs were those involving Egyptian Muslims, other cases could be heard in some circumstances.24 With respect to their jurisdiction over waqfs, the Mahkamahs were limited to the areas implicitly assigned to them by the Civil Codes. These were, in general, all cases involving the constitution or internal administration of a waqf, if all parties were Egyptians; those waqf cases that were deemed to be matters of personal status; and claims brought by foreigners for the ownership of property held in the possession of a charitable waqf. Since the nature of these cases did not always admit of precise definition, the distribution of jurisdictional powers among the three systems of courts—the Mixed, the Native, and the Mahkamahs—was not always clear; consequently, the question of waqf jurisdiction became a controversial issue that was not satisfactorily settled for several decades.25 The law applicable in the Mahkamahs was Islamic law—the Shariʿah. There was no new substantive law comparable to the new codes of the Native Courts promulgated for use in the Mahkamahs. The Laws of 1856, 1880, and 1897 were basically statutes governing the organization of the Mahkamahs, not substantive rules of law. The only significant provisions of those laws that touched upon substantive matters were provisions requiring judges to decide cases according to the most authoritative opinion of the Hanafi school of law and provisions establishing a general fifteen-year period of prescription, with an exceptional period of thirty-three years in certain waqf cases.26 Although Islamic law remained the law of the Mahkamahs, unmodified in any significant respect by new legislation, an attempt was made to codify relevant portions of that law within a Western code format. Three such Islamic “codes” were drafted by Muhammad Qadri, a prominent Egyptian jurist, at one time Minister of Justice. These codes covered the fields of personal status, of waqfs, and of contracts and property.27 It does not appear, however, that any of these compilations was officially promulgated by the Egyptian government or adopted for use by the Mahkamahs.

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With respect to the code on personal status law, its legal standing in the Egyptian court system is not entirely clear. It appears to have been originally published pursuant to the law (MO I §36) requiring the Egyptian government to publish, together with other laws, the “laws relative to the personal status of the natives.” Such publication, however, was for the convenience and information of the judges of the Mixed Courts, who were not legally competent to hear cases on personal status. Nor does the code seem to have been applied in the Mahkamahs, the courts that had general jurisdiction in cases involving the personal status of Muslim Egyptians. In any case, it was not officially promulgated for use in the Mahkamahs, and although it could have been employed in those courts as an additional source of Islamic law, it does not appear to have found favor with the Mahkamah judges.28 As for the code on waqf law, which was not published until 1893, its status in the Mahkamahs was similar to that of the code on personal status law, and it had no official status in the Mixed or Native Courts. Nevertheless, it was used by the judges of the Civil Courts as a source of law in waqf cases, over which they had extensive jurisdiction. Although the Civil Courts were to apply their own codes in all cases, it early became apparent that the provisions of those codes were inadequate in cases involving waqfs, and those courts turned to Islamic law for the rules to decide these cases. Apparently Muhammad Qadri’s compilation, translated into Western languages and in a Western format, was the Islamic source most often referred to.29 Muhammad Qadri’s codification of the Islamic law of contracts and property, published in 1890, was similar in format to the Mixed and Native Civil Codes. Although published at the expense of the government after review and approval by religious and secular authorities, it was never applied in or used by the courts. The Mixed and Native Courts were required to apply their respective Civil Codes in contract and property cases, and the Mahkamahs had no jurisdiction in such cases. Yet this compilation has been of great significance in modern Egyptian law because it has come to be used, apparently because of its Western format and convenience of reference, as a primary Shariʿah source by modern Egyptian lawyers, including the legislators of the 1949 Egyptian Civil Code.30

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Millah Courts A certain degree of autonomy had traditionally been granted to the non-Muslim religious communities, the Millahs, throughout Islamic history. One aspect of this traditional practice was the vesting of these communities with jurisdiction over certain matters affecting their members, particularly matters of personal status. In 1856 such jurisdictional powers were confirmed, redefined, and clarified by an imperial edict (the Hatt-i-Humayun) issued by the Ottoman Porte and based on the principles set forth in the Gulhane Edict of 1839 concerning the civil rights of Ottoman subjects. Both edicts, as well as related high circulars issued by the Porte in 1891, were applicable to Egypt, since matters concerning civil rights had been explicitly reserved to the Porte’s authority by the earlier series of firmans relating to Egypt’s juridical position. It was on the basis of these laws and of supplementary legislation enacted by the Egyptian government that the status of the Millah Courts was defined in the period of Egyptian judicial reform. Each recognized religious community in Egypt (for example, the patriarchates of the Orthodox and Eastern Catholic churches, the rabbinates, and the Protestant community) had, in general, jurisdiction over cases involving the personal status of their members. Included within this jurisdiction were matters of inheritance and testament, but in such cases the jurisdiction of the community courts was not unlimited. For example, in cases of intestate succession, those courts had jurisdiction only if all parties to the action agreed to it; if they did not, the case was heard in the Mahkamahs, which continued to have general and residual jurisdiction over all matters of personal status.31

T he C ivil C odes Contrary to what seemed implicit in Nubar Pasha’s proposal of 1867, the Civil Code adopted by the Mixed Courts was not a “reconciliation” of French and Egyptian law. Rather, it was simply an abridged version of the Code Napoléon into which were inserted a variety of Islamic rules of law, as well as a few rules from the Italian and Belgian Civil Codes. Neither the abridgment of the Napoleonic Code nor the inclusion of

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articles derived from Islamic law was done with any consistency, harmony, or skill. The code was clearly the result of hasty draftsmanship, evidencing little concern with the problems inherent in transplanting legal institutions from one social system to another. These inadequacies were in large part due to the Civil Code being drafted, together with the five other Mixed Codes, by one man, a French lawyer practicing in Egypt, who was not commissioned to undertake the project until after the organization of the Mixed Courts had been agreed to by the Capitulatory powers.32 The Native Civil Code, drafted by an Italian jurist resident in Egypt, perpetuated the defects of the Mixed Civil Code as a result of its derivation from the latter. The close similarity of the two codes (most provisions were identical) was presumably a result of the government’s policy of modeling the national legal system on the Mixed Court system in the belief that the Native Courts might ultimately be acceptable to the Capitulatory powers as substitutes for the Mixed Courts. The format of both Egyptian Civil Codes was similar to that of the Napoleonic Code, except that the French rules on personal status were omitted in the Egyptian laws. All three codes contained first a general section on property, including subsections on the different kinds of property, on the right of ownership, on the rights of usufruct, and on servitudes. The French Code then listed under a separate section all of the various means of acquiring property, by contract or otherwise. The Egyptian Codes, however, included the noncontractual means of acquiring property in their first section, devoted a second section to obligations in general, and dealt with specific contracts in a third section. The fourth section of the Egyptian Codes dealt with the rights of creditors, matters that fell under mortgages and creditors’ priorities in the French Code. In essence, the structure of property law in Egypt under the Civil Codes comprised the rules defining property rights, or “real rights,” and the rules governing the acquisition and disposition of such rights. On the basis of their legislative history and a formal comparison with the Code Napoléon, the Egyptian Civil Codes appear to break with all legal tradition in Egypt and to mark the adoption—or imposition— of a totally foreign legal system in that country. Presumably, such was the intent of the parties concerned with the drafting of the first codes

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for the Mixed Courts. As a condition to their acceptance of the judicial reform, the Capitulatory powers desired a legal system that would preserve and protect their rights, a familiar system that they could utilize without great inconvenience. They achieved such a system in the Mixed Courts, a system designed primarily for foreigners, not for Egyptians. Yet with the adoption of the virtually identical Native Codes, Egyptians were made subject to Western-derived law in all of their civil transactions, whether with foreigners or among themselves. Nevertheless, at least with respect to Land Law, traditional Islamic law as it existed in Egypt prior to the adoption of the new Civil Codes continued to play a major role in the Egyptian legal system.

67 4

P roperty L aw U nder F irst C ivil C odes

the

t h e n i n e t e e n t h - c e n t u r y j u d i c i a l r e f o r m and the adoption of a French Civil Code in Egypt appeared at first to effect a total break with legal tradition in that country. The break appeared to be particularly abrupt with respect to Land Law in view of its relative isolation, prior to that time, from foreign influences. Contrary to appearances, however, the change that took place was neither complete nor abrupt. Traditional law, the Islamic law of Egypt in the nineteenth century, continued to play an important role in the Egyptian legal system. The survival of traditional law under the Civil Code system was due to the new French-derived Civil Codes making no effective provision for those elements of the existing system of land tenure that were foreign to French law. Superficial attempts to assimilate those traditional elements within the legal theory of the new codes were generally unsuccessful, and as a result, special laws were required, most of which were based on traditional law. Furthermore, even in those areas where the Civil Codes completely superseded traditional law, many of the provisions of the new codes themselves were based on traditional Islamic legal institutions.

Property Law Under the First Civil Codes  73

S tate L ands A major contribution of the new Civil Codes was a clarification, based on French legal theory, of the status of lands owned by the state as a private party and lands owned by the state as a trustee in the public interest. These were the lands of the private domain and the public domain respectively, and the basic distinction drawn between these two categories was both clear and useful. However, the codes failed to distinguish as clearly two other categories of state-owned land that were of great importance in Egypt at that time: land held by individuals under a special kind of tenure, primarily kharaji lands, and ownerless wastelands, the abʿadiyah or mawat lands of Islamic law. As a result, the law governing these categories of land continued to be essentially the traditional Islamic law of Egypt.

Kharaji Lands Immediately preceding the promulgation of the Mixed Codes, most of the land in Egypt was held in kharaji tenure, and the basic law defining this tenure was the Saʿidiyah of 1858. With the establishment of the Mixed Court system, jurisdiction over mixed cases involving kharaji lands was vested in those courts, and the basic law applicable to such cases was the Mixed Civil Code. The application of that code to kharaji land was more apparent than real, however, for it did not, in fact, provide for the regulation of such lands. In effect, the basic law governing those lands continued to be the Saʿidiyah, as supplemented by related laws enacted by the Egyptian government. The reason for this disparity was that the Mixed Code followed the theoretical classification of property rights contained in French law and made no accommodation for other kinds of property rights that did not exist in French law or that could not be assimilated to the French classifications. In the case of kharaji tenure, the attempt at such assimilation was not successful. The Mixed Code did little more than define such tenure and classify it as a form of usufruct; it then provided special rules to account for kharaji characteristics that were clearly inconsistent with such a

74   Property Law Under the First Civil Codes

classification and left the basic regulation of this property interest to other laws. The Mixed Civil Code defined kharaji property as that which was owned by the state and of which the state had granted the usufruct to individuals under conditions provided for by the “regulations” (MC §21).1 Although the ordinary right of usufruct could be temporary only, an exception was made in cases where a perpetual right was established by the state on kharaji lands in accordance with provisions of the “regulations” (MC §§3, 132–34). Although the right of usufruct generally terminated after a period of fifteen years of nonuser, the kharaji property right terminated after five years of nonuser (MC §50). Furthermore, although default of taxes due on the usufruct of other property owned by the state resulted only in a forced sale of a portion of the property to recover the amounts due (MC §49), default by a kharaji holder could result in the termination of his entire usufruct (MC §48). With respect to the powers of disposition over kharaji rights, the Mixed Code provided only that such rights could be ceded or hypothecated (MC §36) and transmitted by inheritance according to the local law (shariʿah mahalliyah; MC §77). In addition, such rights could be acquired by prescription after a five-year period of adverse possession and cultivation, although the general rule on prescription required a fifteen-year period if the possessor had no claim of title (MC §§105, 102). In the event that kharaji land was expropriated in the public interest, the holder of such land was not entitled to indemnification except in special circumstances; yet the owners of expropriated usufructuary interests were generally entitled to compensation (MC §§118–20). All of the above provisions, most of which were exceptions to general rules, were consistent with and apparently derived from the Saʿidiyah of 1858. Two of these provisions explicitly refer to the “regulations,” the most important of which was the Saʿidiyah, republished in 1875 for the use of the Mixed Courts as part of the collection of Egyptian Land Laws in force at that time. It was also apparent that in general the Saʿidiyah was applied by the Mixed Courts as the basic law governing kharaji lands.2 In the period between the promulgation of the Mixed Codes and the Native Codes, a series of decrees were issued that in effect abrogated the Muqabalah of 1871 but confirmed the property rights granted

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under that law in all cases where payment—even partial payment—of the Muqabalah tax had been made. Consequently, the treatment accorded the kharaji property rights in the Native Civil Code differed from that of the Mixed Civil Code. In the Native Code, kharaji lands on which part of the Muqabalah tax had been paid were assimilated to mulk lands—lands that were defined by the code as lands held in full ownership (NC §6). As for kharaji holders who had not paid any of the Muqabalah tax, no provision for the regulation of their rights was made in the Native Code; the Mixed Code rules on kharaji lands were not adopted in the Native Code. The latter code, however, contained one section not found in the Mixed Code: a section on gharuqah, the possessory pledge device permitted to kharaji holders by the Saʿidiyah and applicable to all kharaji holdings under the Native Code (NC §553). Except for this rule, which itself was derived from the Saʿidiyah, the rules applicable in the Native Courts to kharaji lands not qualifying as mulk property were entirely those of the Saʿidiyah and related laws enacted by the Egyptian government. In 1891 the distinction existing between the two kinds of kharaji lands was abolished by a law providing that full rights of ownership would be extended to all kharaji lands, regardless of whether any advance tax had been paid under the Muqabalah.3 In 1896 article 6 of the Native Code was amended to define mulk lands to include all kharaji lands. Neither the Decree of 1891 nor the amendment of the Native Code affected the Mixed Code, however, and its provisions on kharaji lands remained unmodified. Nevertheless, the decisional law of the Mixed Courts gradually recognized the changes made in the status of kharaji lands, and ultimately such lands were assimilated to mulk lands in both jurisdictions.4 The abolition of the last distinction between kharaji lands and ʿushri lands—the other main class of mulk property— was finally achieved in 1912 when, as a result of a tax-equalization program begun in 1899, a uniform tax rate was applied to both categories of land.5 Although usiyah holdings had also been included in the general class of kharaji lands under the Saʿidiyah, they had continued to be recognized as a distinct form of land tenure. In 1871 the Law of the Muqabalah provided that usiyah lands on which the advance tax was paid would be

76   Property Law Under the First Civil Codes

assimilated to ʿushri lands, and consequently such lands became private property. However, not all of the usiyah holders paid the advance tax, and accordingly the usiyah holding continued as a separate form of tenure even after 1871. Since neither of the new Civil Codes recognized this form of tenure, the governing law was, again, the Saʿidiyah and supplementary laws enacted by the Egyptian government. The Decrees of 1891 that assimilated kharaji lands to mulk lands did not apply to the remaining usiyahs. The latter were the subject of a separate series of laws, from 1891 to 1894, that provided for the granting of full ownership rights to remaining usiyah holders, as well as a lump-sum payment by the government in exchange for the termination of their annuities (faʾid).6 It was not until these exchanges were completed that usiyah tenure was finally abolished and assimilated to the property rights recognized and regulated by the Civil Codes.

Mawat Lands The status and disposition of ownerless, uncultivated land—in essence, the mawat land of Islamic law—was not given extensive or systematic treatment in the Civil Codes. Those lands were implicitly covered by introductory articles that defined as “free” property (mubah, or biens libres) all property, personalty or realty, that had no owner and that could become the private property of the first possessor (MC §23; NC §8). Those articles also provided, however, that “free” or mubah lands could not be occupied except by authorization of the government and under conditions established by the “regulations” (MC §24; NC §8). The codes then dealt with such lands under the rules on appropriation, or occupation, which was one of the means of acquiring property. The general rule governing appropriation was taken from the Code Napoléon: the first possessor acquired the ownership of ownerless property (MC §79; NC §56). With respect to uncultivated lands, however, such land was declared to be the property of the state, and the codes provided that possession was not permitted except by authorization of the state and by means of a grant of abʿadiyah in accordance with local regulations. However, any person who cultivated or built upon such land would become its owner, subject to the loss of owner-

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ship for nonuser for a period of five years during the first fifteen years (MC §80; NC §57). In addition to these rules, the Mixed Code, apparently on the assumption that an abʿadiyah was a usufructuary interest within the meaning of French law, extended to it the same treatment that it extended to kharaji lands with respect to expropriation without indemnification (MC §§118, 120) and the loss of usufructuary rights after a fiveyear period of nonuser (MC §50). Such provisions were not in harmony with the other rules on mubah or abʿadiyah lands and consequently do not appear to have been applied in the Mixed Courts. No such provisions were contained in the Native Codes. Beyond the limited coverage provided by the Civil Codes, the provisions of which were somewhat ambiguous or even inconsistent, the regime governing mawat lands remained essentially the same as it had been prior to the adoption of the codes. Such lands were deemed to be the property of the state and could be acquired either by means of a grant from the state or by possession and cultivation. In addition, since they were apparently deemed to be the property of the state in its capacity as a private party, that is, part of the private domain, they could also be acquired, by uniform application of the rules of Civil Law, by acquisitive prescription, which normally required fifteen years of possession. Where the lands were acquired by grant from the state, they were conceded as abʿadiyahs pursuant to “regulations” enacted by the Egyptian government. Such regulations were based on and supplemented the regime of abʿadiyah landholdings in existence prior to the adoption of the codes. In general, those laws set forth conditions for the granting of abʿadiyah lands—including, for example, provisions relating to partial tax exemptions—and regulated their disposition while they were held as abʿadiyahs.7

The Public Domain Under the Civil Codes, all property owned by the state fell into two basic categories. If the property was affected with a public interest, it was deemed to be part of the “public domain”; all other state property was deemed to be owned by the state as a private party and was

78   Property Law Under the First Civil Codes

sometimes characterized as the “private domain.” The fundamental concepts involved in such a distinction were derived from French law (CC §§537–40). This classification of state lands was not clearly reflected in the Mixed Civil Code, whose abbreviated provisions on this matter were somewhat ambiguous (MC §§25–26). It was evidenced quite clearly, however, in the Native Civil Code, which contained detailed provisions defining the public domain. That code set forth several examples of properties included within that category and then provided that, in general, the public domain comprised all properties of the state that were appropriated, in fact or by law, to a purpose of public utility (NC §9). In addition, the Native Code included within the public domain all servitudes attached to such properties by virtue of general law or special laws relating to public utility (NC §10). Accordingly, if lands owned by the state served a public purpose, such as public roads, they were deemed to be within the public domain. Similarly, servitudes established by the state for public purposes, such as the servitudes of irrigation or the public rights-of-way in municipalities, were included within the public domain. As part of the public domain, these property rights were subject to special restrictions: lands in the public domain could not become private property (MC §25), and such lands were inalienable, could not be acquired by prescription, and were not subject to judicial seizure (NC §9). In addition, both the Mixed Courts (MO I §11) and the Native Courts (NO §15) were expressly declared incompetent to decide questions concerning the ownership of property in the public domain.8 Although the basic concept of the public domain was derived from French law, the rules governing irrigation and water rights, matters of great importance in Egypt, were based on the principles of traditional Islamic law. Those principles did not appear in the code provisions on servitudes (MC §§51–54; NC §§30–33), but they were the basis of special laws regulating water rights, the most important of which was the Law on Embankments and Canals of February 22, 1894. That law governed the regulation of public canals, deemed to be part of the public domain, and also provided rules governing the exercise of private rights with respect to the use and disposition of waters. However, because the Law of 1894 was not promulgated with the agreement of the Capitu-

Property Law Under the First Civil Codes  79

latory powers, it was not deemed to be binding on the Mixed Courts. It was therefore not applied in those courts in cases where it was inconsistent with provisions of the Mixed Civil Code. It was, of course, applied in the Native Courts and superseded certain provisions of the Native Civil Code.9

The Private Domain State-owned land that was not part of the public domain was deemed to be the private property of the state and was subject to the same rules applicable to other mulk properties; and the state, in its capacity of private landowner, was subject to the same general jurisdiction of the Civil Courts as were all other private landowners. Such lands appear to have included mawat lands and kharaji and usiyah lands, although their legal status under the codes was not entirely clear. In the latter two cases, the property interests of the holders of such lands were deemed to be usufructuary interests on state-owned lands, although, as discussed above, such interests were subject to special rules and were distinguishable from the ordinary right of usufruct on other lands in the private domain. In general, the private domain included all lands belonging to the state by operation of law or by ordinary means of acquisition, provided that they were not employed for purposes of public utility. Lands in the public domain that lost their public character were deemed to become part of the private domain.10 In this connection, one of the most important reforms effected, one that was a direct result of foreign influence and control during this period, was a separation of the state’s properties from the personal properties of the ruler of Egypt. In 1878, under pressure from Western creditors, the Khedive formally ceded to the state certain properties, comprising approximately 1.3 million faddans, which had been held by him and the royal family as individual proprietors. These lands then became part of the state’s private domain; however, since they were hypothecated as security for the Egyptian external debt, they were placed under the administration of internationally controlled commissions—the Commission de la Daira Sanieh and the Commission des Domaines de l’Etat. The special status of these particular lands of the

80   Property Law Under the First Civil Codes

private domain came to an end in the early twentieth century, after the lands had been disposed of in accordance with the terms of existing financial agreements.11

W aqf L ands Under the judicial reform, the law governing waqf lands was contained in the laws of the Civil Courts having jurisdiction over waqf cases: the Mixed Courts, the Native Courts, and the Mahkamahs. In the Mixed Courts, the applicable laws were the Mixed Civil Code and laws affecting land enacted by the Egyptian government and accepted by the Capitulatory powers; in the Native Courts, the applicable laws were the Native Civil Code and enactments of the Egyptian government; in the Mahkamahs, the applicable law was the Shariʿah, supplemented by a few rules contained in the procedural laws enacted by the government. Notwithstanding such diversity of jurisdiction and of substantive rules of law, however, the general law of waqf, applicable in all courts and all cases, remained essentially the Islamic law of waqf.

Waqf Law in the Civil Courts Contrary to what the Egyptian government proposed in its original project for judicial reform, general jurisdiction over mixed cases involving waqf properties was not vested in Mahkamahs, but in the Mixed Courts. Together with the general rule that those courts had no jurisdiction over matters of personal status, the only exception to this general jurisdiction was the rule prohibiting the Mixed Courts from hearing claims brought by foreigners for the ownership of land held by a charitable waqf (MO §12; MC §8). Apart from this, the Mixed Courts were generally competent to hear any mixed case involving waqfs, and the law applicable in such cases was presumably the law of the court— the Mixed Civil Code. In organizing its own Civil Courts on a jurisdictional basis parallel to that of the Mixed Courts, the Egyptian government vested in the Native Courts the same general jurisdiction over waqf cases, but im-

Property Law Under the First Civil Codes  81

posed an important limitation on that jurisdiction by excluding cases involving the constitution or creation of waqfs (NO §16). In all other waqf cases, the Native Courts were to apply the Native Civil Codes or other relevant laws enacted by the government, of which there were few and of little significance. The rules on waqf in both Civil Codes were very limited. Basically, the codes treated a waqf interest as a right of usufruct: property held in waqf was defined as property in mortmain, for the benefit of a religious establishment, of which the usufruct could be ceded to individuals under conditions prescribed by the “regulations” (MC §22; NC §7). As in the case of kharaji holdings, certain exceptions to the general rules governing usufructs were necessary to accommodate the concept of waqf. For example, a waqf could be created by testamentary disposition for the benefit of a beneficiary and his descendants, a rule not applicable to ordinary usufructs (MC §34; NC §17; see also MC §37; NC §18). With respect to the disposition of waqf property, the codes provided only that the inheritance of the usufruct of such property was to be governed by local law (MC §77; NC §54); that the right of preemption did not apply to such property (MC §97; NC §71); that no waqf could be created to the prejudice of creditors (MC §76; NC §53); and, in the Mixed Code only, that upon the expropriation of waqf lands compensation would be provided by means of a grant of similar lands equivalent in value (MC §120). Except for the basic theoretical characterization of the interest in waqf land as a real right of usufruct, all of the above provisions were consistent with and doubtless derived from Islamic law. Except for the above provisions in the codes (and certain other provisions of little significance in other applicable Land Laws) there were no rules on waqf contained in the laws of the Civil Courts. It was clear that the provisions of the Civil Codes, which dealt primarily with private property, or mulk lands, were inadequate to accommodate the Islamic institution of waqf. Consequently, the Civil Courts applied the rules of Islamic law in waqf cases in which there was no applicable Civil Code provision. In at least one instance, the courts went even further and applied Islamic law—the rule providing for a thirty-three-year period of prescription in waqf cases—even where there was an applicable provision in the Civil Codes—the general rule providing for a five- or fifteen-year period (MC §102; NC §76).12

82   Property Law Under the First Civil Codes

In addition to the problems connected with the determination of the law applicable to waqf cases, there were also problems connected with the allocation of waqf jurisdiction among the Civil Courts and the Mahkamahs. In the case of the Native Courts, these problems were particularly acute and were never satisfactorily solved. They had their source in the ambiguous rules providing that cases affecting personal status could not be heard in either of the Civil Courts and that cases involving the constitution of waqfs could not be heard in the Native Courts. Such cases were thus left to the jurisdiction of the Mahkamahs. The determination of whether a particular case involved matters of personal status or of the constitution of a waqf was often quite difficult. While solutions to these problems were not uniform, in general it may be said that the Mixed Courts exercised extensive jurisdiction in waqf cases, considering the law of waqf to be basically—but not exclusively—a matter of Civil Law and not of personal status. As between the Native Courts and the Mahkamahs, the internal regime of a waqf—its validity, the legal capacity of the immediate parties, and the relationships existing between them only—was left to the Mahkamahs; the external affairs of a waqf— its relationships with third parties—were heard in the Native Courts.13

The Law of Waqf With some exceptions, the Islamic law of waqf in the nineteenth century was basically the same as it had been in the classical Shariʿah. Since the judicial reform of that period did not result in any substantive changes in the Islamic law of waqf, or even in a codification of its rules, the judges of the Mahkamahs were free, provided they applied the most authoritative opinion of the Hanafi school of law, to base their decisions on the many Shariʿah legal sources available to them. Such sources, however, were not as readily accessible to the judges of the Civil Courts, most of whom were untrained in Islamic law. Consequently, it appears that the Islamic source most frequently referred to in those courts was the unofficial codification of Muhammad Qadri, which was available, in translation, in a compact Western format. In general, the rules relating to the internal affairs of a waqf were rules of the classical Shariʿah, whereas the rules governing its disposi-

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tion with respect to third parties, where jurisdiction was clearly in the Civil Courts, were rules based on later innovations reflecting customary practices and accepted as rules of traditional Islamic law. Such innovations had developed over the years as partial remedies for one of the more detrimental consequences of the institution of waqf: the immobilization and resultant unproductivity of vast areas of land. These measures were specifically directed toward the problems arising from the inalienability of waqfs, and they were based on the utilization of “leases” that in practical effect resulted in the transfer and alienation of waqf lands. Such legal devices were available to the judges of the Civil Courts through Qadri’s compilation, which had incorporated almost all of the more recent usages as part of the rules of the Islamic law of waqf. The basic rule on inalienability remained the same: a waqf interest could not be sold, mortgaged, transmitted by inheritance, or given away as a gift. In addition, a waqf of agricultural land could not be leased for more than a three-year period, and buildings in waqf could not be leased for more than one year except in special circumstances. In general, however, where waqf property was unproductive and the income insufficient for necessary repairs and maintenance, the property could be let to third parties by means of a variety of long-term, even perpetual, leases. In Egypt, one of the most frequently employed lease arrangements of this kind was the hikr. In return for the possession of waqf property, the recipient of a right of hikr undertook to make improvements on that property and to pay an annual rent that varied in accordance with current property values. Once he had made such improvements, his rights in the land continued so long as he paid the rent. All improvements made on the property, including, for example, buildings or plantations, became the property of the lessee; he could sell or otherwise dispose of such improvements, as well as the right of hikr itself, to third parties. In effect, the lessee had a real right in the property, subject only to the payment of rent. Somewhat similar rights existed in specific cases where a lessee of waqf property made improvements on shops (the right of kadak or jadak, and the right of sukna) or on agricultural lands (the right of kirdar) held in waqf. Waqf properties could also be leased by means of an arrangement known as a khulu, whereby the lessee, undertaking the rehabilitation of a

84   Property Law Under the First Civil Codes

parcel of waqf land, took the property for an indefinite period of time in return for the payment of an annual rent. The lessee could transfer his interest with permission of the waqf trustee, and although the trustee could terminate the lease, he could do so only upon payment to the lessee of the amount expended on improvements in the property. Another leasehold arrangement was the ijaratayn, which was employed for the rehabilitation of buildings on waqf land. Under such an arrangement, the lessee made a lump-sum payment based on the value of the building and then paid an annual fixed rent based on the value of the land. Finally, the trustee of a waqf could enter into the ordinary sharecropping agreements (muzaraʿah and musaqah) normally employed on mulk lands, and such agreements might also be made for an indefinite period. In addition to these leasehold arrangements, the law permitted the use of a security device, called a marsad, which in effect permitted the trustee of a waqf to borrow money for necessary repairs by pledging the waqf property as collateral. The rule provided that if such repairs were made by a lessee at his own expense, he would have the right to retain possession of the waqf property until the debt was paid.14 All of the above arrangements were recognized and treated by the Civil Courts, which had exclusive jurisdiction in such matters, as rules of Islamic law. All of them were contained in Muhammad Qadri’s code on waqf, with the exception of the ijaratayn. The latter was derived from traditional Ottoman law, specifically from the Ottoman Law of June 10, 1867, applicable in Egypt and referred to in the Egyptian Civil Codes in connection with waqfs under the administration of the Ministry of Waqfs (MC §37; NC §18).15

State Administration of Waqfs With respect to the administration of state-managed waqfs, the Ministry of Waqfs established in 1864 was changed in 1884, just after the promulgation of the Native Civil Code, to an independent Administration under the direct supervision of the Khedive. Such a change was effected because of the fear on the part of the Egyptian government that the foreign powers, who were by then in direct control of many governmental functions, would be in a position to intervene in the management of

Property Law Under the First Civil Codes  85

waqf properties if the administration continued under a ministry of the government. In 1895 a reorganization of the new Administration was provided for by a law (Decree of June 13, 1895) whose basic provisions remained in force (with modifications, such as the reversion of the Administration to a Ministry in 1923) until the reforms of 1952. In general, the state administration of waqfs, whether by means of a ministry or an independent agency, involved the direct management of certain waqfs as well as the supervision of waqfs managed by private trustees. Under the Law of 1895, the Administration directly managed charitable waqfs for which there was no trustee; waqfs, of any type, whose trustees or beneficiaries were unknown; waqfs that the Mahkamah judges decided should be managed by the Administration; and waqfs whose management was confided to the Administration by agreement of the interested parties. In addition, certain of the trustees’ powers of disposition that had traditionally been subject to the Mahkamah judges’ approval, such as the power to lease waqf land in hikr, were made also subject to approval by the Administration. Thus, all parties having interests in waqfs managed or supervised by the Administration were under the administrative jurisdiction of a governmental agency in addition to the judicial jurisdiction of the three systems of courts.16 As an indication of the extent of the properties managed by the Administration, in 1917 there were 55,000 faddans of charitable waqfs and 71,000 faddans of family waqfs, with total income of almost L.E. 1,000,000, under its management. As for private waqfs not under the Administration, precise figures are not available, but it was estimated that around that same time there was a total of 400,000 faddans in waqf; in the early twentieth century, it was estimated that one-seventh of the cultivated land in Egypt, as well as three-quarters of the land within the city of Alexandria, was held in waqf.17

P rivate P roperty Reflecting their derivation from French law, the Egyptian Civil Codes were primarily concerned with private property. In this respect, they clearly superseded the Shariʿah rules governing the disposition of mulk lands. Yet even in this area, many of the rules of Islamic law remained

86   Property Law Under the First Civil Codes

in force by virtue of their incorporation, either directly or by reference, into the Civil Codes.

The Right of Ownership ownership and other real rights

In the introductory sections of the Civil Codes, mulk property was defined as property in which individuals had a complete right of ownership—the right of propriété, of mulk tamm (MC §20; NC §6). In conformity with French legal theory, the right of ownership was the most comprehensive right in property, but there were other “real” rights that were also clearly distinguished. These were listed in the introductory section as the right of usufruct, the right of servitude, and certain other creditors’ rights, such as the right of hypothec, or mortgage (MC §19; NC §5). Basically, the right of usufruct was deemed to be an element of the right of ownership, which comprised the right of usufruct and the right of disposition, while the other real rights were treated as charges upon the property or limitations on the right of ownership. On the basis of its derivation from Roman law, the right of ownership was deemed to consist of three elements: the right of user (usus; istiʿmal), the right of enjoyment or exploitation (fructus; istighlal), and the right of disposition (abusus; tasarruf). The holder of a right of a usufruct normally was vested with the first two rights: the physical use of the property and the right to enjoy its fruits and revenues. In such a case, the interest of the owner of the property, who was left with the powers of disposition only, was known as the “bare ownership”—the nue propriété or, as in Islamic law, the raqabah.18 The similarity between the usufruct of French law and the manfaʿah of Islamic law is readily apparent. Presumably it was on the basis of this similarity that the drafters of the codes attempted to assimilate kharaji and waqf holdings to usufructuary interests within the meaning of the codes. As discussed above, neither characterization was entirely accurate or particularly useful, for both types of holdings constituted distinct forms of land tenure, governed by special rules and requiring special treatment in the codes. Nor was the French usufruct identical with

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the Islamic manfaʿah interest derived from mulk property. The codes recognized both a usufructuary interest and a leasehold interest, distinguishing one from the other, while Islamic law made no such clear distinction. The manfaʿah of Islamic law was a more general combination of usufruct and leasehold, distinguishable from either. In any case, it is clear that the theoretical basis for distinguishing the different kinds of property rights was derived directly from French law, although the similarity of concepts in both systems is so striking, as it is in other areas of the law, as to suggest derivation from a common source.19 Provisions covering each real right, including the powers of enjoyment and disposition of such rights, were contained in the codes. However, the codes were concerned primarily with the principal real right—the right of ownership—and their structure is centered around a comprehensive treatment of that right.

enjoyment of the right of ownership

In their definitions of the right of ownership, the Civil Codes imposed no limitation on the exercise of that right: ownership was the right of enjoying and disposing of property in the most absolute manner (MC §27; NC §11). Nevertheless, there were restrictions placed on the exercise of that right by other provisions of the codes and other applicable laws. Many of these restrictions—which, in effect, define and limit the right of ownership—were derived from Islamic law. Most of the code provisions limiting the right of ownership were contained in the sections on servitudes, where restrictions on the enjoyment of private property were treated as rights vesting in neighbors of the owner or in the general public. These rights were deemed to be servitudes established by operation of law and may be characterized as private servitudes or public servitudes. One specific servitude established for the benefit of neighbors and taken from Islamic law related to owners of separate stories in the same building. Each such owner was required to maintain his property in such a way as to protect and preserve the property rights of his neighbors in the same building (MC §§55–58; NC §§34–37).20 Another example of specific provisions taken from Islamic law was a rule

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that explicitly rejected the French rule permitting an owner to compel his neighbor to contribute to the cost of constructing and maintaining separating walls between their property (MC §59; NC §38). In this connection, the Egyptian Codes enacted a related Islamic rule providing that the owner of a party wall could not destroy that wall, without a good and valid reason, if its destruction would cause harm to his neighbor (MC §60; NC §38).21 The most important private servitudes in Egypt were those pertaining to irrigation and water rights. The Civil Codes themselves contain but a few inadequate provisions regulating this complex matter, and the basic law applicable was contained in other statutes, primarily the Law on Embankments and Canals of 1894. As mentioned above, that law, based on principles of Islamic law, provided for public servitudes attaching to the public domain of the state, but it also regulated irrigation rights as between private parties. Although it was clearly a law of the Native Courts, it was not applied in the Mixed Courts in one important case where it was inconsistent with the Mixed Code: the code granted a person who constructed a canal on his land the exclusive right to the use and sale of its water (MC §53), whereas the Law of 1894 granted neighbors the right to use the surplus waters of such a canal, provided that they contributed to the cost of its construction and maintenance (art. 8). Apart from this provision, it appears that both judicial systems recognized the basic system of irrigation then existing in Egypt and reflected in statutory enactments such as the Law of 1894.22 An introductory provision in the section on servitudes was of particular significance in that it provided for a general application of customary Islamic law; it provided that servitudes were to be governed (apart from the terms of any applicable agreement) by “local usages” (MC §51; NC §30). This reference to local usages, interpreted to mean usages grounded in Islamic law, was the basis for the application of the rules of Islamic law in the absence of relevant code provisions. It was evidently the basis for the application of the laws on water rights as well as the laws on other servitudes, including, for example, the Islamic servitude of lights and views, prohibiting the placing of a window opening on women’s quarters in neighboring buildings.23 In addition, the reference to local usages was the basis for the introduction of a

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general principle that was attributed to Islamic legal theory or said to derive from the rules of Islamic law. That was the principle prohibiting the misuse or abuse of vested rights, which was utilized by the courts in connection with the law on servitudes. According to that principle, an owner of property could not exercise his legal rights in such a way as to cause harm to his neighbor if such harm would be excessive in comparison to the benefits accruing to the owner. Thus, even though a person had a legal right to act, he could not exercise that right, without good reason, to the detriment of his neighbor.24 In addition to servitudes established by law for the benefit of neighbors, there were those established in the public interest and attaching to the public domain of the state. Except for a few provisions in the Civil Codes, the rules governing these public servitudes were contained in special laws enacted by the Egyptian government and applied in the Civil Courts. In addition to these, there were other special laws imposing restrictions on the right of private property by virtue of the police powers of the state, such as the zoning laws, the laws on public safety, or the laws prohibiting or regulating the cultivation of certain crops. These special laws were derived from many sources. At least one, the law on public water rights, was based on Islamic principles; another, the Ottoman law on the ownership and exploitation of minerals (April 16, 1869), was based on the customary Islamic law of the period; others, such as the laws on public rights-of-way (August 26 and September 8, 1889) or on agricultural roads (November 3, 1890), were drafted in light of the specific needs of the country and the existing system of property rights.25 Another important restriction on the right of private property was the law on expropriation for purposes of public utility. The Mixed Civil Code contained numerous provisions governing this matter, all based on French law (MC §§117–43). Within a few years, however, it was found that these rules could not be applied successfully in Egypt, and they were not included in the Native Civil Code. The latter provided only that expropriation for purposes of public utility would be regulated by a special law. That law was not promulgated until 1896 (Decree of February 17), and it appears that until that date, the matter was governed by existing law, including the Saʿidiyah of 1858, as modified by the Muqabalah of 1871. In 1906 the pertinent provisions of the Mixed

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Codes were replaced by a special law (Law 27 of 1906) virtually identical to the Law of 1896, and from that date both court systems applied the same law on expropriation.26

The Transfer of Ownership Rights After defining the nature and attributes of real rights in property, the Civil Codes dealt with the transfer of such rights in a series of provisions relating to the various means of acquiring and disposing of property. Included among these were general provisions on the transfer of property by agreement or contract. Specific contracts, such as sale or lease, were treated separately in other sections of the codes, but for present purposes they may be considered together with the means of transfer dealt with in the provisions on property rights.

inheritance and testament

Since both inheritance and testament were deemed to be matters of personal status, these important means of transmission of property rights were not regulated by the Civil Codes. The codes provided only that such questions generally should be regulated by the law of personal status applicable to the deceased person. Subject to the rules relating to the jurisdictions of the various personal status courts, such law was generally the Shariʿah for Muslims, the laws of the religious community courts for non-Muslim Egyptians, and the laws of the Consular Courts for foreigners. An exception to this rule was made in cases involving the inheritance of the usufruct of waqf properties and—in the Mixed Code only—of kharaji properties, in which cases the applicable law was the “local law,” the shariʿah mahalliyah (MC §77; NC §54).

gifts

The law governing gifts was also deemed to be a law of personal status, and as such was beyond the jurisdiction of the Civil Courts except that

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the codes contained a few requirements as to the form of the contract of gift, including provisions on recording and provisions on the safeguarding of creditors’ rights (MC §§70–76; NC §§48–53).

accession

In the French Civil Code, the provisions on accession (§§547–77) were contained in the sections dealing with the rights and attributes of ownership, but the drafters of the Egyptian Civil Codes included them in a separate section, treating them as a means of acquiring ownership (MC §§84–92; NC §§60–67). Virtually all of the rules, however, were taken directly from the French Code. In general, they dealt with natural accession (as where property is created by the movement of waters) and artificial accession (as where one person builds on the land of another or uses the property of another in building on his own land). There are some rules of Islamic law covering these matters, particularly artificial accession (under the rules on ghasb), but there is no indication that such rules were referred to in the drafting of the Egyptian Codes. In one case, however, with respect to land formed or displaced by rivers, the Civil Codes provided that the matter was to be governed by the Saʿidiyah of 1858 (MC §85; NC §61).

appropriation

The general rule on appropriation, or occupancy, provided that the first occupant of unowned property became the owner thereof. With respect to land, however, the general rule had little significance in Egypt; uncultivated land was deemed to be owned by the state, and there were virtually no cultivated lands in Egypt that were ownerless.27 As for the uncultivated land belonging to the state, these were actually the mawat lands of Islamic law, which were described as mubah lands in the codes and which were subject to the regime discussed above in connection with state lands. Accordingly, the rules on appropriation of real property had no practical significance except with respect to the acquisition of this particular category of state-owned land. The only other provi-

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sion in the section on appropriation dealt with the acquisition of certain personal property, such as hidden treasure or game animals, and the regulation of these matters was also left to special laws that were derived primarily from Islamic law (MC §§79–83; NC §§56–59).28

prescription

The Egyptian Civil Codes adopted their concept of prescription from French law, treating it as a means of acquiring ownership rights. Although the concept existed in Islamic law, it was conceived of as a bar to actions against the adverse possessor and not as a means of acquiring property rights. Yet the period of possession prescribed in the codes as a prerequisite to the acquisition of such rights was taken from Islamic law, not the French Code. In French law, the general rule required a thirty-year period of possession with a ten- or twenty-year period in special cases where the possession was in good faith and under claim of title (§§2262, 2265). In the Egyptian Codes, the period was set at fifteen years, with a five-year period for possession under claim of title (MC §76; NC §102). In addition, the Mixed Codes provided for a special five-year period applicable to kharaji land, provided that the possessor cultivated the land (MC §105). It appears that the fifteen-year rule was attributed to the Hanafi school of law, while the special five-year rule was derived from customary Islamic law as it appeared in the Saʿidiyah of 1858.29 In this connection, an interesting problem in conflict of laws was presented in cases involving waqf land. Article 14 of the law on the organization of the Mahkamahs (Decree of June 17, 1880) embodied the general Islamic rule on prescription and included a special exception applicable to cases involving waqf property: in such cases, the prescribed period of possession was set at thirty-three years. In waqf cases before the Civil Courts, the question arose whether this rule of Islamic law or the Civil Law rule of the codes should apply. It appears that in general the Islamic rule was adopted, although—in the Native Courts, at least—the rule was not applied as a bar to actions against the possessor, but as an affirmative vesting of ownership rights in the possessor. It thus became a rule of acquisitive prescription based on Civil

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Law theory, measured by an Islamic period of adverse possession and applied to a Shariʿah institution.30

preemption

The Civil Code provisions on the Islamic doctrine of preemption were taken directly from the Shariʿah. That section was of particular significance because it was the only place in the Civil Codes where an attempt was made to incorporate fully an Islamic institution within the framework of the Civil Law. Further, the rules on preemption, as developed under the Civil Law, were a result of the earliest attempts to reform an Islamic institution by means of a secular, legislative process. Prior to this development, the rules of Islamic law either were superseded by the new Western laws or, where they continued in force, were left unchanged. This absence of any real attempt to change or modify the Shariʿah was obvious in those areas of law, such as waqf or personal status, that remained under the jurisdiction of the Mahkamahs; yet neither had there been any attempt at reform with respect to those rules of Islamic law that were contained in the Civil Codes and applied in the Civil Courts. The original provisions of the Civil Codes were not intended to change the institution of preemption; they only reflected an attempt to state the Islamic law of preemption and encompass it within the system of Civil Law. Such an attempt proved to be unsuccessful. Its failure was due to the insufficient coverage provided (only eight articles in the Native Code and nine in the Mixed) and to an apparent lack of familiarity with the Islamic institution on the part of the drafters of the codes. For example, one ambiguous provision, inconsistent with the main body of Hanafi rules, appears to have been inadvertently derived from the Maliki school of law (MC §93; NC §68).31 The inadequacies of the code provisions were recognized and finally corrected by special laws on preemption that superseded the original provisions of the Civil Codes: the Decree of March 26, 1900, applicable to the Mixed Courts, and the Decree of March 23, 1901, applicable to the Native Courts. In general, those decrees, each comprising twentyfive articles, codified the basic Islamic rules on the subject, modified,

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however, by a general tendency to restrict and limit the right of preemption. For example, the right was abolished with respect to a khalit— the owner of property sharing a servitude with the property to be sold (arts. 1 and 7). It continued to be vested in co-owners and in neighbors, but a neighbor’s right was severely limited by restricting its exercise to certain specific cases only (art. 1). In addition, the procedural requirements were tightened, resulting in a loss of the right to preempt if certain claims were not made within a limited period of time (arts. 14, 15, 17, 19, and 22). There were also changes made in the law of preemption in order to conform it to other areas of the Civil Law, even where such changes resulted in an extension of the right of preemption. For example, the right was granted in cases where a usufruct had been constituted and where either the usufructuary interest or the bare ownership was about to be sold (arts. 1 and 7). Such a provision did not exist in Islamic law. Furthermore, the right could be exercised in the sale of buildings alone, separate from the land. This innovation resulted from a judicial interpretation of the term immovables as that term was generally defined in the Civil Law, and not as the term was defined in the Islamic law of preemption.32 In general, however, the Shariʿah was deemed to be the source of the law of preemption, and judges referred to it in cases not covered by the provisions of the Civil Law.33

agreements and contracts

As a general rule, the codes provided that the right of ownership could be transferred and acquired by agreement between individual parties (MC §§67–69; NC §§45–47), and such agreements were generally subject to the law on obligations. In certain cases, however, the codes further prescribed rules governing specific contracts, and many of these dealt with real property rights. Sale. The basic law governing the contract of sale was taken from the French Code. However, there were several rules derived from Islamic law that were adopted as Civil Code provisions. One of the most important of these was the rule placing the risk of loss prior to delivery on the seller (MC §371; NC §297), in contrast to the French rule, which

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placed the risk on the buyer (§1138). Another was a rule permitting a buyer to rescind a sale in certain cases where he had not seen the property prior to purchase; he was given an “option of inspection” (MC §§315–19; NC §§249–53). Some of the rules on latent defects in the property sold (MC §§390–92, 399; NC §§316–17), as well as the rule on fraud (MC §419; NC §336), also contained Islamic elements. The Mixed Code adopted an Islamic rule prohibiting the sale of future crops (MC §330), and the Native Code adopted an Islamic rule requiring the consent of the debtor as a condition to the valid assignment of a claim against him (NC §349). Finally, a general rule of Islamic law, regarding the validity of dispositions made during an illness immediately preceding death, particularly with respect to the claims of heirs of the deceased, was adopted in both codes (MC §§322–23; NC §§254–56).34 Lease. Islamic law did not contain any clear distinction between the interests known as usufruct and leasehold in the modern Egyptian Codes. That distinction was based on French law, and the rules governing both interests were derived from the French Code. In the new codes, the two interests were distinguished, first, in that a usufruct was a real right in the land, whereas a leasehold was a personal right, as against the lessor; and, second, in that a usufruct generally terminated upon the death of the usufructuary, while the leasehold was not affected by the death of the lessor or lessee. Although the law of lease was basically of French derivation, some of its rules reflected the Islamic concept of a leasehold, which was closer to a usufructuary interest and more in the nature of a real right in the land. Consequently, the rights and obligations of the lessee and lessor under the codes differed from those under French law. In particular, rules derived from Islamic law provided that the lessor was not responsible for the maintenance and repair of the leased property, either before delivery or during the term of the lease (MC §§452–53; NC §§369–70).35 As for specific leases, the codes referred to two kinds: amodiation, or sharecropping arrangements, and leases of agricultural lands. Except for some Islamic rules on the planting of trees on the leased property (MC §§481–82; NC §§394–95), the agricultural lease provisions were derived from French law. With respect to the rules on amodiation, it appears that they reflected an attempt to deal with a lease arrangement that was being employed in Egypt at that time—the muzaraʿah of

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Islamic law. It is not clear, however, that these rules were taken directly from Islamic law. The codes did not contain provisions on one of the most important contracts of lease: the lease of waqf property. Having assimilated the waqf interest to a usufructuary interest, which normally could be leased, the codes provided that leases made by a “legal administrator” could not exceed a period of three years without the permission of the proper court (MC §447; NC §364). Apparently this rule, which is identical in effect to the Islamic rule on waqf leases, was deemed to cover waqf properties. With this possible exception, the rules governing the various type of leaseholds used in connection with waqf land were the rules of Islamic law. As discussed above, these rules were adopted by the Civil Courts and applied by them in all cases involving waqf leases, cases that were clearly within the civil jurisdiction.36 Loans. With regard to loans, the Egyptian Codes adopted the distinction made in the French Code between “loans for use” and “loans for consumption.” In a loan for use, a lender gratuitously gives the possession and use of his property to a borrower, who agrees to return the identical property after a designated period. Such an arrangement is essentially the Islamic contract of ʿariyah, but there is no indication that the Islamic concept was referred to in the drafting of the Civil Codes, and it appears that the code provisions were taken exclusively from French law. As for a loan for consumption—that is, a loan of fungibles, under the terms of which the borrower undertakes to return property in kind—the Civil Code provisions were also taken from French law. In practice, the loan for consumption was most often an interest-bearing loan of money (although it could also be a loan of other property or a loan without interest), and such a loan was prohibited in Islamic law. Both codes permitted such loans, however, and prescribed a contractual maximum rate of interest; such a rate was originally set at 12 percent, but this was reduced in 1892 to 9 percent (MC §§183–85, 582; NC §§124–25, 478). Pledge and Security Interest. The basic presentation in the Egyptian Codes of the rules on pledge, mortgage, and other security interests differed considerably from that of the French Civil Code. In the Egyptian Codes, the contract of pledge was listed among the specific contracts

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(MC §§662–77; NC §§540–52), whereas the other security interests were contained in a special section on creditors’ rights. Furthermore, the contract of pledge was extended to apply not only to personalty, to which it was limited in French law, but also to real property. In addition, a special form of pledge, the gharuqah, was provided for in the Native Civil Code with respect to kharaji lands (NC §553). It appears that the reasons for this approach were rooted in contemporary practices in Egypt that were based on customary Islamic law. At that time, the most widely employed security transaction in which land served as collateral for a debt was based on the traditional Islamic law contract of “sale with power of redemption.” In addition to this arrangement, there was also the possessory pledge, whereby a creditor entered into possession of the debtor’s land and applied its revenues against the amounts due; this arrangement was especially important for kharaji holders, since a sale with a power of redemption could not be effectively employed if the borrowing seller did not have full ownership rights to sell. Such a pledge of kharaji lands was traditionally known as a gharuqah and had been explicitly permitted to kharaji holders by the Saʿidiyah of 1858. It was in light of this background that the Civil Codes, in defining the contracts of pledge and gharuqah, limited their application to situations in which the creditor in effect was given possession or title to the land held as security for the debt. This was consistent with Islamic law, which did not recognize a security device in which either possession or ownership was not given to the creditor. It was only in the special section on creditors’ rights that a real security not involving possession by the creditor was provided for: this was the hypothec, or mortgage. By virtue of the concurrent establishment of a recording system in Egypt, a prerequisite to its effective use, the hypothec came to be employed extensively in that country. It was actually the introduction of this form of security arrangement, incorporated in the codes as a creditor’s right, that was an innovation based on French law; the contract of pledge as it was defined in the Egyptian Codes was not such an innovation; but was derived from traditional Islamic law as it existed prior to the adoption of the codes.37

67 5

a

T he D evelopment of N ational L egal S ystem

of the nineteenth century was undertaken as a reform of the Capitulatory system; its object was the special, extraterritorial judicial system governing foreign interests in Egypt. It was thus designed, primarily by negotiation with the Capitulatory powers, to meet the special requirements of that system. It resulted, however, in the introduction of a Western Civil Code system as the basis for the entire national legal structure. Yet because it was not designed to meet the particular requirements of the country as a whole, it was not, in this sense, a national reform. Rather, it was the superimposition of a foreign legal system upon existing traditional institutions. As a consequence, the Civil Code system produced by the nineteenth-century reform was itself the object of a reform movement in the twentieth. The twentieth-century reform movement had two general objectives: the consolidation of the various jurisdictions existing under the earlier reform into a unified national judicial system applying uniform rules of law and a reform of the substantive law itself, including the integration of the various substantive laws applicable in the different jurisdictions. Progress toward these objectives took place within the context of a growing spirit of nationalism, which defined the essential character of the reform movement insofar as it was directed toward

the egyptian legal reform

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the development of a national Egyptian legal system and the abolition of foreign privileges in Egypt. By midcentury, those objectives were substantially attained. To the extent that they were, Egypt developed a legal system suited to its particular national requirements, including its requirements as a modern state. Yet those “modern” requirements were defined essentially in Western terms: the modernization of the Egyptian legal system—in contrast, as it were, to its nationalization— continued to be fundamentally a process of Westernization. In the early 1950s, however, under the nationalism of the revolutionary reform movement, the course of progress was no longer defined primarily in terms of Western standards. Accordingly, the future course of legal development may be clearly distinguishable from what preceded it in the earlier part of the century. Nevertheless, the point from which such a development may proceed is the legal system, represented by the National Court system and the Civil Code of 1949, produced by the earlier reform movement, a movement directed toward a synthesis of both traditional and Western legal elements.

U nity

of J urisdiction

Under the Mixed Court system, jurisdiction over civil cases was distributed among the Mixed Courts, the Native Courts, and the Consular Courts, according to the nationality of the litigants. In personal status cases, jurisdiction was distributed among the Mahkamahs, the Millah Courts, and the Consular Courts, according to the nationality and the religion of the litigant. Each of these court systems applied its own laws. Such a distribution of judicial powers was based on two principles, clearly distinguishable by the nineteenth century, although deriving from common sources. The first was a traditional principle of Islamic law, reflecting the theory of personal, rather than territorial, jurisdiction: in matters of personal status, non-Muslims were subject to their own courts and governed by their own laws. The second was the principle, derived from the Islamic theory of personal jurisdiction, underlying the Capitulatory system: foreigners in Egypt were subject to a special, extraterritorial jurisdiction, which placed them beyond the direct control of the Egyptian government.1 Both of these principles were deterrents

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to the achievement of a national territorial jurisdiction vested in a unified system of courts, a goal conforming to the modern conception of a national legal system. In addition, the second principle, granting extraterritorial privileges to foreigners, was felt to be inconsistent with modern concepts of sovereignty and therefore an impingement upon the sovereignty of the Egyptian state. (Egypt’s few remaining connections with the Ottoman Porte were severed in 1914, and the British Protectorate terminated in 1923.) Consequently, the first step toward unification of jurisdiction was the abolition of the special juridical status of foreigners; the second step, much longer in coming, was the abolition of separate personal status courts.

The Civil Courts Contrary to the Egyptian government’s expectation that the Native Courts would replace the Mixed Courts within a short time, the Mixed Court system continued to operate for almost three-quarters of a century, until 1949. Except for the last twelve years of its existence, the system remained virtually unchanged from what it had been at its inception. At the commencement of those last twelve years, however, it was radically changed. The change was effected by the Treaty of Montreux, entered into between Egypt and the Capitulatory powers in 1937, providing for the abolition of the Capitulations in Egypt. From the effective date of that treaty, foreigners were made subject to Egyptian law in all matters (art. 2). Explicit provision was made, however, for the maintenance of the Mixed Courts until 1949, and during that period their organization and jurisdiction was to be governed by an Egyptian law annexed to the treaty (art. 3). In addition, the jurisdiction of the Consular Courts was abolished, except that in certain cases the signatory powers could, if they so desired, maintain existing Consular Courts to hear matters of personal status only. In any case, all consular jurisdiction was to terminate by 1949 (arts. 8–9). The Egyptian law annexed to the treaty (Law 49 of 1937) superseded the original law on the organization of the Mixed Courts and thus became the basic law governing the organization and jurisdiction of

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those courts during the twelve-year transition period. Pursuant to the provisions of that law and the treaty, the Mixed Courts assumed most of jurisdiction that had formerly been vested in the Consular Courts, and they also relinquished some of their former jurisdiction to the Native Courts. In addition, the legislative powers formerly vested in the Mixed Courts, by virtue of which they could disapprove legislation applicable to them, were abolished. The new organizational law provided that in civil and commercial matters, the Mixed Courts were competent to hear all cases between foreigners—even foreigners of the same nationality, where jurisdiction had formerly been in the Consular Courts—and between foreigners and parties who were subject to the jurisdiction of the Native Courts (art. 26). In practical effect, the new jurisdiction of the Mixed Courts in mixed cases was less extensive than it had formerly been because the definition of the “foreigners” subject to their jurisdiction was narrowly limited (arts. 25, 26, 33, and 37). As in the original law providing for the organization of the Mixed Courts, a specific exception to their jurisdiction was made in cases involving waqf properties, but the scope of this exception was broadened in the Law of 1937. The new law explicitly provided that the Mixed Courts could no longer hear cases involving the constitution of a waqf, its validity, the interpretation or application of its conditions, or the nomination or revocation of the nazir, or trustee (art. 38). Thus, their jurisdiction over waqf cases was restricted to and paralleled the waqf jurisdiction exercised by the Native Courts. Furthermore, by defining such jurisdiction in greater detail, the law helped to clarify the extent of waqf jurisdiction in the Civil Courts and thus settled some, although not all, of the problems that had arisen in this connection.2 In matters of personal status, the Mixed Courts were given general jurisdiction over cases involving foreigners, with two main exceptions. If the foreigner was a national of a signatory power that had retained its consular jurisdiction (fifteen such courts were originally retained, although the number later decreased), he was subject to that jurisdiction in matters of personal status; if the foreigner belonged to a religious community for which there was a personal status court in Egypt, he was subject to the jurisdiction of that court in such matters (arts. 25, 27, 28, 29, and 56). The Native Courts were given no parallel jurisdiction

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in matters of personal status, which remained in the Egyptian personal status courts (the Mahkamahs or the Millah Courts) in cases involving Egyptians or foreigners not subject to the Mixed Courts or the Consular Courts. In civil and commercial matters, however, the Native Court jurisdiction was expanded in proportion to the restrictions placed on the Mixed Court jurisdiction; the law providing for the organization of the Native Courts was amended to provide, in effect, that those courts would have general jurisdiction over all civil and commercial cases not within the competence of the Mixed Courts (Decree-Law 90 of 1937). In October 1949, at the end of the transition period established under the Treaty of Montreux, the Mixed Court system, including the remaining Consular Courts, was terminated, and the jurisdiction of the courts in that system was transferred to the Egyptian Civil Courts. The latter were reconstituted as the National Courts under a new law on judicial organization (Law 147 of 1949) and were vested with general jurisdiction in civil and commercial cases, criminal cases, and personal status cases involving foreigners not otherwise subject to one of the personal status courts of Egypt. As a result of that transfer of judicial powers, national civil jurisdiction was vested in the National Courts, functioning as the courts of universal competence in Egypt, except that jurisdiction over cases involving the personal status of Egyptians continued to be dispersed among the various Egyptian personal status courts. Also excluded from the jurisdiction of the Civil Courts, however, were certain cases involving the state—cases that had formerly been within the competence of these courts, but that had gradually been transferred to special administrative agencies or courts. By the time of the reorganization of the National Courts in 1949, this development had led to the establishment of an additional system of administrative courts based on French theories of administrative law.

The Administrative Courts The Egyptian judicial system resulting from the reform of the nineteenth century included no special jurisdiction to hear actions involving the state as a party. The Civil Courts, both Mixed and Native, were competent to hear such actions except in a few cases specifically pro-

The Development of a National Legal System  103

vided for by law. In this respect, the Egyptian legal system as a whole did not follow its French model, as developed in the nineteenth century, in allocating judicial powers to both civil and administrative jurisdictions. When the French Conseil d’Etat was established, an attempt was made to adopt a similar institution for Egypt (in 1879 and again in 1883), but the project was unsuccessful. As a result, the legal system in the early twentieth century did not formally contain a separate corpus of administrative law or a separate system of administrative courts.3 Nevertheless, the treatment of the state as a party to litigation followed the French approach to such problems. Special jurisdiction had always existed in certain cases involving the state, and it was vested in various administrative agencies exercising judicial functions with respect to the laws and activities for which they were responsible. Among these was an administrative commission charged with the implementation of the special laws on irrigation and water rights; another was the Tanzim Service, having jurisdiction over cases involving public servitudes and rights-of-way. In both of these instances, the subject matter was the public domain, where the jurisdiction of both systems of Civil Courts had been subject to certain limitations. In cases involving the private domain, however, the state was treated as a private party and was subject in all respects to the jurisdiction of the Civil Courts.4 After certain modifications in the provisions defining the scope of the Civil Courts’ jurisdiction over the state, a formal system of administrative jurisdiction was constituted in 1946 with the establishment of an Egyptian Conseil d’Etat along the lines of the French institution (Law 112 of 1946). However, since the jurisdiction of the Mixed Courts under the Treaty of Montreux continued to extend to certain cases involving the state—including actions between the state and foreigners in civil and commercial matters and actions brought by foreigners against the state for administrative measures taken in violation of the law—the scope of the new administrative jurisdiction was correspondingly limited. With the termination of the Mixed Court system in 1949, these limitations were no longer necessary, and consequently the administrative jurisdiction was further extended (Law 9 of 1949). Accordingly, by the time the National Courts were vested with exclusive jurisdiction over matters of general Civil Law (that is, law other than the law of personal status), there had developed an additional

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and complementary jurisdiction, based on French legal concepts, which comprised administrative courts exercising judicial functions with respect to cases arising under a separate, uncodified corpus of administrative law. Since the general scope of this corpus of law extended to cases involving the state (when acting as such, and not in the capacity of a private party), jurisdiction over cases affecting the public domain and public servitudes was thus formally and effectively transferred from the Civil Courts to the administrative courts.5

The Courts of Personal Status The other major jurisdiction existing under the Mixed Court system comprised the independent judicial systems of the Mahkamahs, the Consular Courts, and the Millah Courts of the religious communities. Their development in the twentieth century was marked by a trend toward consolidation, leading ultimately to their absorption into the National Court system. The first indication of this course of development appeared in connection with a special kind of Shariʿah Court system, the Majalis Hisbiyah, which had jurisdiction over guardianship and related matters. This separate judicial system had been founded in 1873 and organized on the basis of a Law of 1896. Like the ordinary Mahkamahs, it originally had jurisdiction over Muslim Egyptians only, but in 1925 that jurisdiction was extended to all Egyptians as well as to all foreigners not covered by the Capitulations. Thus the Law of 1925 was the first instance in which an Egyptian court was vested with general jurisdiction over all Egyptians, regardless of their religion, in a matter of personal status. In 1947 this system of courts became a subsidiary part of the National Court system (Law 99 of 1947), and in 1951 it was fully assimilated into the National Courts, whose ordinary judges were empowered to hear all cases formerly within the Hisbiyah jurisdiction (Law 156 of 1951). The law applicable to such cases, however, continued to be based on the Shariʿah, as contained in various statutes enacted both before and after the consolidation of jurisdictions.6 Another stage in the development of personal status jurisdiction resulted from the changes effected by the 1937 Treaty of Montreux.

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Although many of the signatory powers had opted to retain their jurisdiction in matters of personal status, general residual jurisdiction over the personal status of foreigners was transferred to the Mixed Courts. With the final abolition of both the Mixed Courts and the Consular Courts in 1949, personal status jurisdiction over all foreigners in Egypt was consolidated in the National Courts. With respect to the personal status of Egyptians, the basic division of jurisdiction between the Civil Courts and the personal status courts on the one hand, and between the Mahkamahs and the Millah Courts on the other, was maintained until 1956. The organization of the Mahkamahs, based on the Law of 1897, was revised several times (in 1909, 1910, and 1931), but the jurisdiction of those courts remained essentially the same. They continued to apply Islamic law as contained in the original Shariʿah texts until 1920, when the first of a series of secular statutes, derived from Islamic law, was enacted for application in those courts. As a result of the Treaty of Montreux and the ensuing reorganization of the judicial system, personal status jurisdiction, including the rules on conflicts of personal status law, were better clarified and more precisely defined. However, jurisdiction over questions of inheritance and testamentary disposition remained somewhat unclear for several years, although the prevailing trend was toward consolidation of that jurisdiction in the Mahkamahs, regardless of the religion of the party. Steps in this direction were taken in 1943, in the law on inheritance (Law 77 of 1943); in 1944, in a law providing that the Shariʿah and the statutes governing testamentary dispositions were the law of the land (Law 25 of 1944); and finally in 1949, in the new Civil Code, which clearly provided that inheritance and testamentary dispositions were to be governed by the Shariʿah and by the laws regulating such matters (CC §875 and §915). After the reform of 1949, the laws of personal status and the systems of courts administering those laws remained separate: the National Courts assumed the jurisdiction of the former Mixed and Consular Courts, while the Mahkamahs and Millah Courts retained their basic jurisdictional competence, although the latter had lost some of their jurisdiction to the Mahkamahs. In 1956, however, under the revolutionary government, these separate jurisdictions were finally united in the National Courts (Law 462 of 1955). Both the Mahkamahs and the

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Millah Courts were abolished, and special divisions were established within the National Courts to hear personal status cases. The law applicable to such cases, however, continued to be the religious law of the litigants, as applied in the former personal status courts (art. 6). Thus, although a unity of jurisdiction was achieved, a uniform law, applicable in all cases of personal status regardless of religion, was not. Nevertheless, because there had been a certain measure of uniformity attained prior to 1956, resulting from such laws as those governing guardianship, inheritance, and testament having been made applicable to all Egyptians, the areas in which the law differed according to the different religions of the parties were confined essentially to marriage, divorce, and related matters.7

L aw R eform The legal reform of the nineteenth century had been a jurisdictional reform, concerned primarily with a reallocation of judicial powers among existing and newly created courts. It did not involve a reform of substantive law except insofar as a new law, a foreign law, was adopted for use in the new Mixed Courts and, by imitation, in the new Native Courts. No particular care was evidenced in “reforming” that foreign law to meet the particular requirements of the country to which it applied. In the field of property law, at least, it required approximately a quarter of a century to achieve a substantial measure of consistency between the new law and preexisting institutions. As for the other judicial systems existing in Egypt, no attempt was made to reform or modify the substantive law applicable there. The laws of each of the Consular Courts and each of the Millah Courts, as well as the traditional Islamic law applied by the Mahkamahs, were left untouched by the early reform. Legal reform in the twentieth century, on the other hand, was concerned as much with the substantive law as it was with problems of jurisdiction. This concern was manifested in two parallel developments: a reform of the Shariʿah, with a view toward making it a viable corpus of law in a modern state, and a reform of the Civil Law, with a view toward making it responsive to the particular needs of the Egyptian na-

The Development of a National Legal System  107

tion. Both courses of development were also characterized by a desire, evidenced as well in the progress toward a unified system of courts, to create a coherent national legal system based on uniform principles applicable in all areas of the law.

The Shariʿah Law of Personal Status The religious content of the Shariʿah rules on personal status is greater than in any other corpus of Islamic law. For this reason, it was no accident that substantive legislative reform was not attempted in this area during the reform movement of the nineteenth century, and it was for the same reason that reforms in the twentieth century have been painstaking, gradual, and, moreover, controversial. The development of Islamic personal status law in the twentieth century mirrors the history of Islamic religion, Islamic society, Islamic tradition, in the modern era. Accordingly, even a skeletal outline cannot be encompassed within the scope of this study, and only certain aspects of that development and history may be indicated here.8 Modern movements for the reform of the Shariʿah received their impetus in reaction to the process of Westernization in Egypt. Beginning in the late nineteenth century, these movements took various forms and proposed various courses of action. Their effects, however, were not felt in the law of Egypt for several decades. Prior to 1920, no legislation, not even an embodiment of existing Shariʿah rules, had been enacted in the field of personal status law. In that year, and again in 1929, statutes were passed containing fragmentary rules on the laws of marriage, divorce, and some related matters (Law 25 of 1920 and Law 25 of 1929). In addition, the law on the organization of the Mahkamahs was amended in 1923 to have substantive effect on the Islamic rule regarding the minimum age of marriage (Law 56 of 1923), and the same law was basically revised in 1931, with similar effects on other substantive rules of law (Law 78 of 1931). It was not until 1943, however, that any comprehensive legislation was passed governing entire segments of the law of personal status. In that year, a law on inheritance was enacted, comprising forty-eight articles (Law 77 of 1943), followed in 1946 by a

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law on testamentary dispositions, composed of eighty-two articles (Law 71 of 1946). All of these and subsequent related laws governing matters of personal status were enactments of Shariʿah rules on their respective subject matters, but they were also reforms of the Shariʿah. A variety of legislative methods, all of which recognized the supremacy of the Shariʿah, while at the same time limiting or changing its application in particular rules of law, were used to bring about these reforms. One approach exploited the differences between specific Shariʿah rules produced by differences among the classical Islamic schools of law. Employing an eclectic principle, the legislators were able to effect their reforms by selecting rules from the various jurists in the Hanafi school, from the authoritative opinions of other schools of law, or even from the opinions of other individual jurists. At times they went even further and combined these rules to create what were, in effect, new provisions of law. Another approach was based on the utilization of procedural requirements to limit, modify, or even negate the effective application of the rules of the Shariʿah. The imposition of such procedural requirements, deemed to derive from the judicial powers of the sovereign, did not in themselves violate the rules of Islamic law, but their effect upon litigants was such as to constitute in fact a revision of the substantive law of the Shariʿah.9 By such indirect methods, the Egyptian legislators have been able to reform what has traditionally been considered an immutable corpus of law to meet the requirements of a modern society. Similar methods have become generally accepted means of reform (with many reservations on the part of religious conservatives) in other areas of the law where Shariʿah rules have remained in vigor, such as the law of waqf, or even the Civil Law rules on preemption. These methods will doubtless be employed in the future whenever it may be deemed necessary. The use of these methods is even more significant as an indication of the respect with which the Shariʿah has been treated and of the desire of modern Egyptians (as well as modern Muslims of all nationalities) to make it a viable corpus of law in modern times. This attitude has not been restricted to those specific rules of the Shariʿah that have remained in effect in the twentieth century, but extends as well to its general principles, which are deemed to be of value for all areas of the law.

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The Law of Waqf The modern Islamic reform movement extended to all areas of the Shariʿah that were then in vigor as the law of Egypt. The law of waqf, as part of the Shariʿah, reflected in its development the same problems, the same aims, and the same methods of reform as those connected with the law of personal status. In some respects, however, its development was quite different. For one thing, it was felt by many that the need for reform of the law of waqf was much more pressing. Waqf law was an important part of Egyptian Land Law and as such had a direct effect—in most instances, deleterious—upon the economy of the country. By operation of the law of waqf, extensive areas of land had been immobilized and removed from the main stream of the economy. Burdened by legal restrictions on alienation, disposition, and exploitation, waqf property could not be efficiently employed to achieve a high level of productivity. With increasing numbers of beneficiaries in each generation, the value of individual shares in a waqf would so diminish that the beneficiaries often lost all interest in maintaining the property. In general, total income received by all waqf beneficiaries in Egypt was at an exceedingly low rate of return on the total value of all waqf property in that country.10 It was in view of these considerations that serious proposals for reform, including the complete abolition of waqfs, were entertained by the legislature as early as 1926. Those proposals did not go unopposed, however, and strong opposition was voiced by those who defended the institution on traditional grounds. During the next decade, the matter was the subject of considerable controversy; no action was taken, however, until 1936, when a committee was constituted to draft legislation covering the entire field of personal status law, as well as the law of waqf. It was this same committee that later drafted the Laws of 1943 and 1946 on inheritance and testamentary dispositions. As in the case of those laws, it was originally contemplated that the new law of waqf would be comprehensive, embodying the entire corpus of waqf law. Due to a number of factors, however, including the pressure of demands for immediate reform, the final draft of the law, completed in 1942 and finally enacted in 1946 (Law 48 of 1946), did not cover the entire law of waqf although it did effect a radical transformation in the institution.11

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After 1946 the Egyptian form of waqf bore little resemblance to the Islamic institution in its definitive attributes. This fundamental change in character was brought about by a few basic provisions of the Law of 1946. The most important of these provided that family waqfs could no longer be created in perpetuity: their maximum duration was limited to two series or generations of beneficiaries or, in the alternative, to a period of sixty years after the death of the grantor (art. 5; see also arts. 16–17). In addition, the grantor was given the right to revoke the waqf entirely or to alter or otherwise modify its provisions (art. 7), and the beneficiaries were given the right to have their share of the corpus partitioned and to act as trustees (nazirs) of the partitioned share (arts. 40 and 46). By enactment of these and complementary rules, the definitive attributes of a traditional waqf—its irrevocability, its alienability, and its creation in perpetuity—were nullified. The legal reasoning underlying—or justifying—the adoption of these new rules was similar in principle to the methods employed in connection with the reform of personal status law. For example, by eclectic selection the rule permitting the grantor a power of revocation was taken from an opinion of Abu Hanifah himself, whose ruling on this point was rejected by the Hanafi school as a whole; the rule on partition of the waqf corpus was derived from one of the opinions of the Hanbali school; and the rule limiting the duration of a waqf was arrived at by combining several opinions of different authorities.12 Other significant provisions of the 1946 law altering the nature of the institution included a rule taken from the Maliki school, permitting the creation of a waqf of personal property, explicitly including capital stock, as well as realty (art. 8). Another provision severely restricted the traditional use of a waqf as a device to circumvent the laws of succession by limiting the grantor’s right to dispose of more than one-third of his estate in waqf (arts. 23–30). This limitation paralleled the limitation imposed by the Law on Testamentary Dispositions, pursuant to which a testator could not dispose of more than one-third of his estate by will. Consequently, the institution of waqf could no longer be freely utilized to make what were in effect testamentary bequests forbidden by the laws on succession and testament. In this respect, the statutory rule was an example of legislation based on considerations of consistency and harmony throughout the different areas of the law.13

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It had been on the basis of these same considerations of consistency and harmony that the jurisdiction of the Mixed Courts had been limited in 1937 to the same classes of waqf cases that were then under the jurisdiction of the Native Courts. Thenceforth, neither judicial system could hear cases involving the constitution of a waqf or related matters. In 1949, with the drafting of the new Civil Code, similar considerations of consistency were again evidenced in the closer integration of the waqf law applied in the Mahkamahs with the waqf law applied in the National Courts. The new Civil Code assimilated the basic concept of waqf within the general framework of the Civil Law and at the same time prescribed consistent rules, derived from the Islamic law of waqf as modified by statute, governing those waqf cases that were subject to the civil jurisdiction.

The Civil Law Unlike those fields of law in which the Shariʿah remained in vigor, the Civil Law had already been secularized and modernized by the reform of the nineteenth century, a reform based on the direct and immediate Westernization of Egyptian Civil Law. Although that reform was adequate—even excellent—in terms of its immediate purposes, it was not regarded as satisfactory in terms of the total needs and aspirations of a developing modern Egypt, and it, too, became the target of a reform movement in the twentieth century. The direction of that movement appears to have been determined by two basic, not unrelated factors: the first was a decision to reform the law on a technical basis, in conformity with the particular legal requirements of the country; the second was a desire to create a national law, in reflection of the nationalistic aspirations of a newly emerging nation. The need for reform on a technical level was most apparent in connection with the diversity of jurisdictions still existing under the Mixed Court system, but it was also apparent with respect to the substantive law itself. To the extent that the Civil Codes were adaptations of French law, the adaptations produced ambiguities and inconsistencies; to the extent that the codes attempted to assimilate traditional law, the assimilation was fragmentary and incomplete. In the field of property

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law, at least, the codes did not, in fact, provide adequate coverage. As a result, the rules of that law were dispersed among the Civil Codes, special laws passed both before and after the reform, the Shariʿah, and with respect to such important questions as succession, even the personal status laws of the Millah Courts. Furthermore, even where the Civil Codes did provide adequate coverage, it was felt that in many instances their foreign rules were not suitable to conditions in Egypt. This latter consideration increased in significance with the emergence of a national consciousness in Egypt as that country developed into a modern, independent nation. In the rising tide of nationalism, the mere fact that the Civil Law of Egypt was essentially an imitation of foreign law would have been sufficient to induce a nationalist demand for reform; that the law was also technically inadequate was a conclusive argument in support of such reform. And as nationalism underscored the need for reform, so it defined its basic aim: the new law of Egypt was to be Egyptian, serving the needs of the modern Egyptian nation and reflecting its national character. The implementation of this aim, however, was neither so clearly nor so unanimously defined. Beyond the basic desire for a national law, there was no general agreement as to the nature or character of such a law or as to the manner in which it was to be created. The resolution of these questions has thus far determined, and may continue to determine, the course of legal development in modern Egypt. In many respects, the discussion of these questions was part of the general debate regarding the reform of the Shariʿah as part of the modern reform movement in Islam. There were those who contended that the national law of Egypt, the Civil Law as well as the laws of personal status, should be based on the Shariʿah—perhaps modified and reorganized, but nonetheless the Shariʿah. They supported their contention on the grounds that the Shariʿah, in addition to representing the cultural heritage of Egypt, offered a potentially rich source of legal materials that could be adapted to the needs of a modern Egyptian society. In direct opposition to this position were those who maintained that Egypt in the modern, Western world required a modern legal system, conforming to modern legal theories. They denied the value of the traditional religious law and proposed instead a secular law, created by drawing on the experience of other modern states, selecting the best

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aspects of foreign legal systems for adaptation to the particular circumstances of Egypt. Between these two extremes of traditionalist and secularist positions were those who maintained that while Egypt required a modern secular law in the Western sense, the Shariʿah afforded a rich source of legal principles and rules that could be utilized in the formulation of such a law for Egypt. In their view, the law of Egypt could not be limited to the Shariʿah; yet in light of its history as the traditional law of the country, they thought that Shariʿah rules should be adopted wherever they were not inconsistent with the requirements of a modern state and that Shariʿah principles should be employed as criteria in the selection of rules of law from other legal systems. In general, it may be said that this latter compromise viewpoint prevailed in the formulation of a basic theory for the new Civil Code.14 Prior to 1937, all of the code law of Egypt remained essentially unchanged except for the Native Penal Code and the Native Code of Criminal Procedure, which were replaced by new codes in 1904. The most significant modifications of the Civil Codes were in the rules governing preemption, modifications made by the laws of 1900 and 1901. As discussed above, those modifications were the earliest examples of internal reform in modern Egyptian law. They afforded examples of the reform of an Islamic institution by legislative enactment, as well as of reform within the Civil Code, whereby a traditional institution was assimilated to the greater corpus of Civil Law. In these respects, the new laws on preemption foreshadowed later reforms, both within the Shariʿah itself and in the new Civil Code. More general reforms in the area of code law were actively undertaken about 1937, at the time of the judicial reorganization pursuant to the Treaty of Montreux. The desire for reform having long been manifested, the Egyptian government, which was by then in a position to enact legislation without the concurrence of the Capitulatory powers, undertook a general revision of existing code law. To this end, a variety of committees were established, among which was a committee of two prominent jurists, one Egyptian and one French, charged with the initial preparation of a draft Civil Code. The Egyptian was Dr. ʿAbd-alRazzaq Ahmad al-Sanhuri, a leading exponent of the compromise view that the Civil Code of Egypt should utilize the rules and principles of

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the Shariʿah to the fullest extent consistent with the requirements of a modern state.15 His views were most influential in determining the general character of the new Civil Code. A complete draft of the Civil Code was completed by this committee in 1942, when it was distributed among leading jurists and legislators for their consideration and comment. In 1945 another committee was formed, under the chairmanship of Dr. Sanhuri, which revised the preliminary draft on the basis of comments and suggestions made during the preceding three years. The modified draft prepared by this committee was introduced in the Parliament, where after review and revision by parliamentary committees, it was enacted in 1948 to take effect in 1949 on the day the Mixed Courts closed and the National Courts assumed universal jurisdiction.16 In general, the sources of the new Civil Code were described as comparative law, Egyptian Civil Law, and the Shariʿah. In drafting the code, comparative legal studies were made of all the major code systems. Reference was made not only to the French-derived codes, but also to the Germanic codes as well as to the newer composite codes, such as the Polish and the Russian. Approximately twenty such codes were referred to for purposes of selecting legal concepts for adaptation to Egyptian law. Most of these adaptations, however, were limited to matters of form and structure; they did not generally extend to substantive rules. Furthermore, it was not intended that the Egyptian judges would refer to foreign jurisprudence in interpreting those provisions of the Egyptian Code that had been derived from foreign law. Such provisions, even where they could be clearly isolated and distinguished, were deemed to be completely independent of their foreign sources.17 Except for the use of foreign law in the organization of the new code, the primary source of law for that code was Egyptian law—the former Civil Codes and court decisions under those codes. The jurisprudence of the Egyptian courts had developed over a period of seventy-five years and thus constituted, in itself, a valuable corpus of national law well adapted to the particular requirements of Egypt. It was estimated that three-fourths to four-fifths of the substantive rules of the new code were derived from the former codes and Egyptian decisional law.18

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In addition to these sources, the legislators drew upon the Shariʿah. In some cases, the Shariʿah was utilized in the formulation of general principles of law; in other cases, it was a source of specific rules of law. In addition, it was regarded as a source in those cases where the new code was based on former Civil Code provisions originally derived from the Shariʿah, such as the code law on preemption. In like manner, it was a source with respect to the rules derived from judicial decisions that had been decided according to the Shariʿah, such as the rules on hikr.19 In general, it appears that every attempt was made to use the Shariʿah where, in the opinion of the drafters, its use was consistent with modern principles of legislation. In certain cases, this involved a direct derivation from Shariʿah rules. In most cases, however, it appears that the code provisions attributed to Shariʿah sources were derived from other sources and either selected on the basis of a general consistency with the Shariʿah or, more often, arrived at on completely independent grounds and then linked, if possible, with an applicable Shariʿah rule. Whatever the actual derivation, however, there was clearly manifested a concern that the new law should appear to be at least consistent with, if not derived from, the Shariʿah in as many respects as possible.20 Perhaps the most significant aspect of the role of the Shariʿah in the new Civil Law was its formal recognition as a source of law. The first article of the Civil Code provides that in the absence of an applicable code provision, the judge shall decide according to custom, and in the absence of custom, according to the Shariʿah (and in the absence of both, according to the principles of natural law and equity). This provision marks the theoretical recognition of the Shariʿah as a law of the land, reflecting its modern development as a traditional law and its utilization as a modern national law.

67 6

P roperty L aw U nder the C ivil C ode of 1949

t h e c i v i l c o d e o f 1949, the basic law governing property rights in Egypt, clearly reflects the aims of the reform movement of the first half of this century. It is a national law in that it was drafted on the basis of the particular requirements of Egypt and derived from Egyptian legal sources. It is a modern law in that it was drafted on the basis of the requirements of Egypt as a modern state, drawing upon the legal experience of other modern states. To the extent that it was based upon the former Egyptian Civil Codes and the contemporary legal systems of Western nations, it is also a Western law, developed within the context of Western legal tradition. Finally, it is a uniform law of general application in that it serves as the basic Civil Law governing all civil cases in Egypt, applied by a unified system of courts. It is all of these, representing a synthesis of various elements selected and integrated in accordance with standards established by the modern reform movement. The task of drafting the new code in conformity with such standards was clearly facilitated by the existence of a Civil Code system in Egypt for three-quarters of a century and by the development of that system during that period. In the field of property law, the traditional system of land tenure that had continued in existence under the first codes

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was fundamentally changed prior to 1949. Kharaji, usiyah, and abʿadiyah landholdings completely disappeared during that period, largely due to the influence of the new Western legal system. Property rights of the state in other categories of lands in its ownership were more clearly defined and regulated by law—both Civil Law and, as it later developed, administrative law. The sovereign’s property was distinguished from the property of the state, and the state’s private property was distinguished from the public domain. The code provisions governing state-owned mawat lands were supplemented by special laws. The law of waqf changed radically from what it had been at the beginning of that period, when it comprised the unmodified, uncodified Shariʿah law of the Mahkamahs and the few inadequate code provisions applicable in the Civil Courts. The waqf law of the Mahkamahs was drastically revised by the legislation of 1946, and the waqf law of the Civil Courts was developed into an extensive corpus of decisional law based on the Shariʿah. As a result of these developments, there existed in 1949 a firm foundation for the further consolidation and integration of the rules of property law under the new Civil Code. The drafters of that code were able to deal with one basic form of land tenure: private ownership. To the extent that waqf and state lands came under the civil jurisdiction, the legislators of 1949 were better prepared to regulate those lands under Civil Code provisions that were consistent with the Civil Law in general as well as with the laws of the Mahkamahs and the administrative courts. In the measure that they were successful in these respects, the new code is clearly distinguishable from its predecessors. What most clearly distinguished the theoretical basis of the new code from that of its predecessors was the conscious and articulate attempt to utilize the Shariʿah as a source of law. In some instances, the legislators went beyond the former Civil Codes and added entirely new rules of law derived from the Shariʿah. In addition, they adopted general principles of law derived from, or at least selected on the basis of, Islamic legal principles. In most cases where Islamic rules of law are contained in the new code, however, they were taken from the existing Civil Law of Egypt, both the former Civil Codes and decisional law under those codes, and further developed to conform to other principles and rules of modern Egyptian law.

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Developments subsequent to the enactment of the 1949 Civil Code, under the revolutionary government, indicate that the Shariʿah should continue to play a significant role in the future evolution of Egyptian law. The precise nature of that role is yet to be defined. Thus far, there have not been fundamental changes in the Civil Law, although the law of property has been affected in some significant aspects. With the abolition of family waqfs, a distinct form of property ownership, long a component of the traditional system of land tenure, has been brought to an end. Furthermore, the right of ownership itself has been limited by restrictions on the powers of disposition over private property. Further restrictions may be forthcoming, and perhaps even the theoretical concept of ownership as defined under the Civil Code may undergo some basic changes. But in any event, the Civil Code remains the basic law governing property rights in Egypt.

R ules

of

P roperty L aw

in the

C ivil C ode

The format of the Civil Code of 1949 comprises three major parts: an introductory chapter; Part One, on obligations or personal rights; and Part Two, on real rights. The introductory chapter contains general provisions, the first of which provides that in the absence of an applicable provision of law, the judge shall decide according to custom; in the absence of custom, according to the principles of the Shariʿah; and in the absence of such principles, according to natural law and the principles of equity (CC §1). With this provision, the Shariʿah received formal recognition as a source of Egyptian Civil Law. It may be observed that an early draft of the introductory chapter, prepared before Dr. Sanhuri’s committee was established, did not include the Shariʿah as such a source of law but instead treated it, together with the legal doctrine of all nations, as an “inspiration” for judges in arriving at their decisions.1 Under the rule as enacted, however, judges are required to refer to the Shariʿah in the circumstances specified; they are not expected to refer to foreign law for purposes of interpretation even where the Egyptian rule is in fact derived from such law.2 The introductory chapter also sets forth one of the general principles or theories of the new Civil Code, the doctrine of the abuse

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of rights. The code provides that, while a person who lawfully exercises his rights shall not be liable for any harm resulting therefrom (CC §4), the exercise of a right is declared to be unlawful (1) if it has no other purpose than harming another person, (2) if the benefit to be realized from it is disproportionate to the harm it causes to another person, or (3) if such benefit is unlawful (CC §5). This doctrine of abus des droits is a general principle reflected in the Civil Codes of other nations, and those codes were referred to and drawn upon by the drafters of the Egyptian Code. However, in the formulation of the Egyptian rule, great emphasis was placed upon derivation from related principles of Islamic law, although in fact the doctrine was reflected in only a few specific rules of the Shariʿah. As in most cases, the decisional law of the Egyptian courts was also referred to in formulating the new rule.3 After prescribing the rules relating to abuse of rights, the introductory chapter sets forth rules on conflicts of laws (CC §§6–28) and on the legal status of juristic persons (CC §§52–80), among which are included the state and waqfs (CC §52). By thus classifying waqfs as juristic persons, an area that had long been controversial under earlier law was settled by the new code. The introductory chapter concludes with a classification of the different kinds of property, somewhat similar to the classification contained in the former codes. However, the 1949 code makes no reference to the various classes of real property described in the earlier codes. There was no need to mention kharaji tenure since it no longer existed in 1949; there was therefore no need to distinguish mulk property, which by then had become the ordinary form of land tenure. The original draft of the code contained a provision defining waqf properties, but this, too, was deemed to be unnecessary and was deleted in the enacted version of the code. Nor was any reference made to mubah properties, which are not treated as a distinct category of land under the 1949 code. However, there are provisions relating to the public domain of the state, which is defined as property owned by the state and appropriated, in fact or by law, to a public interest. Such property is inalienable, not liable to seizure, and may not be acquired by prescription; but it may lose its status as part of the public domain when it ceases to serve a purpose of public utility (CC §§87–88).

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Following the introductory chapter, the first part of the code deals with obligations: Book I, on obligations in general, and Book II, on specific contracts. The latter is divided into several chapters, including chapters on contracts affecting ownership (such as sale, gift, and loans for consumption) and contracts relating to the use of property (including various forms of lease and loans for use). The basic law on property rights is contained in the second part of the code, relating to real rights. The first book of that part deals with the principal real rights: the right of ownership, the right of usufruct and related rights, the right of hikr, and the rights of servitude. The second book deals with accessory real rights, or “real securities,” including mortgage, pledge, and other creditors’ rights or priorities.

P rivate P roperty The basic rules governing private property are contained in a chapter including rules on the right of ownership in general and rules on the various means of acquiring that right. The latter rules, together with the provisions in Part One of specific contracts affecting property rights and the rules in Part Two on real securities, cover the powers of disposition of private property. In addition, there is a separate chapter dealing with the rights of usufruct, hikr, and servitude. In these respects, the general organization of the rules of property in the new code is similar to that of the former codes. There are important structural differences, however, in that the new code is based on a more detailed organization of its provisions, and it contains new rules that did not exist in the former codes.

The Principal Real Rights The conceptualization of the right of ownership in the Civil Code of 1949 is similar to what it had been under the earlier codes. That right, the most comprehensive right in property, is deemed to comprise several separable elements, each of which may be a property right in itself. When separated from “bare ownership,” these ele-

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ments become the right of usufruct, the right of user, and the right of habitation. On the same theoretical basis, the rights of servitude are included among the principal real rights deriving from the right of ownership, although they differ from other real rights in that they are essentially limitations on the right of ownership for the benefit of another party’s property. In addition to these real rights, all of which had been contained in the former codes and derived from French law, the new Civil Code provided for another principal real right that was not recognized in the earlier codes. That was the right of hikr, the provisions on which covered the ijaratayn and the khulu al-intifaʿ. These new provisions governed the disposition of rights in waqf lands and were derived from the Shariʿah. In including these rights, the new code implicitly recognized the distinct nature of waqf property; at the same time, it treated such rights in a manner parallel to its treatment of the rights of private property. The right of hikr on waqf land, for example, was deemed to parallel the right of usufruct on private property. With respect to the right of usufruct itself, the new code provides more extensive coverage and greater detail in organization than the former codes (CC §§985–95). For example, the right of user and the right of habitation are clearly distinguished from the right of usufruct (CC §§996–98). Furthermore, the new code does not assimilate a beneficiary’s right in waqf land to rights of usufruct, and the provisions of the former codes treating waqfs (as well as kharaji lands) as usufructuary interests have been deleted in the 1949 code. With respect to servitudes, their presentation in the new codes differs considerably from that of the earlier codes. The specific servitudes mentioned in the latter are now treated as restrictions on the right of ownership and are included under the chapter dealing with that right. The new code provisions on the real rights of servitude prescribe general rules only, governing the creation, effect, and termination of servitudes, primarily those established by agreement; they do not cover specific servitudes established by operation of law (CC §§1015–29), which are now deemed to be restrictions on the right of ownership. However, where such restrictions are established in favor of other parties, such as a neighbor, such parties are deemed to be vested with corresponding rights in the nature of servitudes.

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Like that of its predecessors, the basic theory of real rights in the new Civil Code is Western in origin. There is no indication that it was derived from Islamic law, although the official compilation of the legislative history of the code4 contains citations to the Shariʿah for many of the rules relating to such rights. These references, which appear throughout the compilation in connection with specific provisions of the code, do not necessarily—and do not usually—indicate direct derivation from the Shariʿah, but rather refer to Islamic rules of law that are consistent with the adopted code provisions. They are indicative, however, of the attitude of the legislators toward the Shariʿah and the role ascribed to it in the Civil Law. It is also interesting to note that most of these Shariʿah references in the chapters on property law are either to the nineteenth-century Civil Law compilation of Muhammad Qadri or to the Majallah, the nineteenth-century Ottoman codification of the Islamic rules of Civil Law; they are usually not references to the original Shariʿah sources, although such sources are generally cited in connection with the rules on obligations and contracts. Although the basic theory of real rights was derived from Western sources, the rules on hikr clearly were not. These rules were derived exclusively from Islamic law; yet they were not treated separately, but were integrated into a theoretical framework grounded in Western legal concepts. One other example of such integration exists in the rules on servitudes, and that is a provision terminating a right of servitude for nonuser during a period of fifteen years. That provision makes an exception in cases of servitudes created for the benefit of waqf properties, where, consistent with Islamic rules of law, the permissible period of nonuser is extended to thirty-three years (CC §1026).

The Right of Ownership The right of ownership is much more circumscribed in the Civil Code of 1949 than in the earlier codes. This reflects what have been described as socialistic tendencies in the new code, similar in nature to modern legislative trends in other European nations and considerably different in theory from the relatively unrestricted concept of private property in the Napoleonic Code. In fact, a final draft of the provision defining

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the right of ownership explicitly described it as being in the nature of a “social function,” and although this description was deleted in the final stages of revision, the right is often characterized in these terms by Egyptian legal commentators.5 The enacted version of the provision defining the right of ownership vests in the owner of property the comprehensive rights of user, of enjoyment or exploitation, and of disposition; such rights must, however, be exercised within the “limits of the law” (CC §802). Moreover, the owner of property is generally required to comply with the laws, decrees, and regulations relating to public or private interests (CC §806). Such legal limitations are imposed upon the exercise of the right of property in subsequent provisions of the code itself or by operation of other special laws that have the effect of restricting the right of ownership. In general, the code provisions impose such limitations for the benefit of other private parties, while the special laws usually deal with restrictions imposed in the public interest. The most important of the restrictions on the right of ownership is contained in a rule of property law reflecting a specific application of the general theory of abuse of rights. That rule forbids an owner to press the exercise of his rights, in an excessive manner, to such an extent that he does harm to the property of his neighbor. While his neighbor has no right of recourse against him for the normal inconveniences resulting from their proximity, the neighbor may demand the cessation of such inconveniences if they exceed normal bounds, as determined on the basis of custom, the nature of their properties, and their respective situations (CC §807). Like the general theory of abuse of rights, this provision, too, was deemed to be derived from the Shariʿah and was formulated on the basis of earlier court decisions that in turn had referred to rules of Islamic law. It also appears that the derivation of this rule, both in the courts and in the legislative committees, involved eclectic selection from among the various Islamic schools of law, which were clearly not unanimous either in their acceptance of any such general principle or in its application to specific cases.6 Another kind of restriction on the right of ownership is contained in code provisions governing water rights between private parties (CC §§808–11). These provisions are a combination of the rules of the former Civil Codes and the provisions of the Law on Embankments and

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Canals of 1894. The latter, which had been based on customary Islamic law, was in force at the time of the adoption of the 1949 Civil Code and remained in force until 1953, when it was superseded by a new law on the subject (Law 68 of 1953).7 With respect to walls between neighboring properties, the new code retained the rules of the former codes, based on Islamic law, which denied an owner the right to compel his neighbor to contribute to the construction of a dividing wall and which forbade the owner of such a wall to destroy it, without good reason, if such destruction caused harm to his neighbor (CC §818). The latter part of that rule was deemed to be a specific application of the general theory of abuse of rights. In addition to this rule, the new code contained provisions governing party walls in general (CC §§814–18), a matter that had not been covered by the former codes. In the absence of such coverage, the Egyptian courts, in deciding cases on this matter, had referred to Islamic law. In drafting the new code provisions, this body of decisional law, in addition to the Shariʿah itself, was utilized as a source for the new rules. In addition, reference was also made to French and Italian law.8 Another servitude recognized by the former codes and derived from Islamic law related to the rights of owners of separate stories in the same building. Provisions governing these rights were also included in the Civil Code of 1949, but they were treated neither as servitudes nor as restrictions on the right of ownership. Rather, they were included under new sections dealing with joint ownership (CC §§856–61). Like their predecessors, these provisions on separate stories were derived from the Shariʿah, including judicial decisions based on the Shariʿah. It also appears that the earlier judicial decisions on joint ownership had generally been based on the Shariʿah (there had been no code provisions governing this important matter), but it is not clear that the Islamic rules referred to in those decisions were employed in the formulation of the new code provisions on joint ownership.9 Restrictions on the right of ownership imposed by special laws, decrees, or regulations involve a variety of subjects and are contained in numerous Egyptian statutes and administrative regulations. Consistent with the nomenclature of the earlier codes and the development of administrative law, some of these restrictions, such as those attaching to the public domain, are characterized as “administrative

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servitudes.” Others, relating to such matters as public security, health, or safety, are based on the police powers of the state. Still others, such as those connected with the Agrarian Reform program of Arab socialism, reflect fundamental policies of the government and touch upon the very nature of property rights as defined under the Civil Codes. Among the more important special laws affecting the right of ownership are those relating to irrigation and water rights, expropriation for purposes of public utility, mines and mineral resources, and public rights-of-way. It is interesting to note that most of the original laws regulating these matters, enacted during the nineteenth or early twentieth century, were still in vigor as basic law when the 1949 code was enacted. For example, the law on water rights, governing both private and public servitudes, remained in force until a new law on the subject was enacted in 1953 (Law 68 of 1953). The basic laws in effect in 1949 governing public rights-of-way and agricultural roads were the Laws of 1889 and 1890, respectively. The basic law on expropriation in 1949 was the Law of 1907, which was not superseded until 1954 (Law 577 of 1954). In this connection, the new Civil Code provided only that no person may be deprived of his property except in cases prescribed by law and in return for just compensation (CC §805). With respect to mineral rights, there had been no special law governing this matter except for the Ottoman law on mines of 1869. It was not until 1948 that a new Egyptian law was enacted (Law 136 of 1948), which was replaced by another special law in 1953 (Law 66 of 1953). Those laws, derived from European mining legislation, provide that a landowner has no right to the minerals in his property, which are deemed to be the property of the state, in the public domain.10 By 1949 most of the cases regulated by the above laws, as well as other special laws of the same nature, had been brought under the newly formalized jurisdiction of the administrative courts. To the extent that they were, they were deemed to be within the realm of the administrative law and outside the main corpus of Civil Law.11 Clearly the most significant restrictions on the right of ownership were those imposed by the special laws that form the basis of Arab socialism. The first of these was the Agrarian Reform Law of 1952 (Law 178 of 1952), as modified and supplemented by a series of subsequent laws. These laws placed a quantitative restriction on the right of ownership of agricultural land by limiting the amount of land that may be owned

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by one party. Originally the maximum was set at 200 faddans, but in 1961 it was reduced to 100 faddans (Law 127 of 1961). In addition, these laws restricted the owner’s right of disposition over his land by regulating such factors as rent, the terms and conditions of leases, the division of certain holdings into smaller parcels, and the amount that may be held in the possession of one party.12 Taken together, these measures are significant new restrictions on the right of private property; yet they are not inconsistent with the theoretical approach adopted in the Civil Code with respect to private property. Following that approach, the right of property is regarded as a limited right, limited for the benefit of the public interest and in the nature of a “social function.” In this respect, the restrictions of the Agrarian Reform program do not mark an entirely new departure from the course adopted in the Civil Code of 1949. In this connection, it may be noted that bills had been introduced in the Egyptian Parliament as early as 1945, and again in 1950, which would have limited individual landholdings to as little as 50 faddans.13 Another, rather special, restriction on the right of ownership is reflected in a policy pronouncement by President Nasser to the effect that all foreign-owned land in Egypt would be nationalized.14 Such a restriction would mark the end of long-standing policy initiated by Muhammad Ali even before general permission for foreigners to own land in the Ottoman Empire was officially granted. Yet this new policy is also consistent with a course of development begun prior to the revolution of 1952. With increasing population pressure on the limited amount of cultivable land in Egypt, the government had earlier undertaken to limit foreign landholdings in that country. This policy was reflected in the Civil Code of 1949, which did not permit a foreigner to acquire uncultivated mawat land by means of appropriation (CC §874). In 1951, following certain other restrictions first imposed in 1940 (Decree No. 62 of 1940; Law 111 of 1945), foreigners were, with certain exceptions, forbidden to acquire agricultural land in Egypt (Law 37 of 1951).15

The Transfer of Ownership Rights The Civil Code’s presentation of the transfer and disposition of the right of ownership and of other real rights is similar to the presen-

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tation contained in the former codes. The new code lists the various means of acquiring the right of ownership under the provisions dealing with that right and then lists the various specific contracts affecting that right under the part on obligations. The format differs from the earlier codes, however, in that the contract of gift is now treated as a specific contract, and the specific contracts are further classified according to whether they relate to the right of ownership itself or are limited to the use of property. Furthermore, the treatment of security interests is considerably different in the 1949 code, which includes all such interests in one separate section dealing with “accessory real rights or real securities.”

inheritance

Like its predecessor codes, the Civil Code of 1949 leaves matters of inheritance to the laws of personal status. Unlike its predecessors, however, the 1949 code, in confirming a trend begun earlier and in settling some unresolved questions, specifies that those laws were to be the Shariʿah and the applicable statutes on inheritance—primarily the Law of 1943, which had been based on the Shariʿah (CC §§17, 875). The applicability of those laws to all Egyptians, regardless of their religion, was thereby established. In addition to a general rule providing that the establishment of heirs, their shares, and the distribution of the estate shall be governed by Islamic law and the applicable laws on inheritance, the code also provides supplementary rules relating to the liquidation of an estate (CC §§876–913). No reference was made in the new provisions on inheritance to waqf properties, which had been referred to in a special rule on inheritance under the former codes, because matters affecting waqfs were deemed to be regulated by the law on waqfs.

testamentary dispositions

The Civil Code also provides that wills shall be governed by the Shariʿah and applicable statutes (CC §915). As with respect to inheritance, such

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laws are applicable to all Egyptians, regardless of religion. There are also provisions under the section on testamentary dispositions dealing with transfers made during an illness immediately preceding death, provisions that had been contained in the earlier codes under the rules on sales and limited to sales made during such an illness. In general, the 1949 rules, derived from the Shariʿah, provide that if such a transfer has been made, it is presumed to be a gift and is therefore treated as a testamentary disposition unless proof is shown to the contrary (CC §916). If deemed to be a testamentary disposition, it is governed by the law on wills and is subject to the limitations prescribed therein, including a restriction limiting the amount that may be transmitted to one-third of the estate. That law, together with the law on inheritance, was applied in the Mahkamahs until the latter were made part of the National Courts in 1956.

accession

In general, the Civil Code of 1949 follows the earlier codes with respect to the rules on accession. The new code, however, provides more extensive coverage and organizes its provisions to distinguish between cases involving personal property and those involving realty. With respect to the latter, it further distinguishes between cases of artificial accession, involving the acts of man, and those of natural accession, relating to the movement of waters. In this connection, the displacement of land and the formation of islands in the Nile River continued to be regulated by a special law that, until 1932 (Law 48 of 1932), was the Saʿidiyah of 1858. With this exception, the provisions on accession in the new code were derived from foreign law.

appropriation

The provisions on appropriation in the new code make a clear distinction between appropriation of personal property and appropriation of real property. There is only one provision dealing with real property, and that relates to ownerless, uncultivated lands, which are declared

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to be in the ownership of the state; such lands may be acquired by permission of the state or by cultivation (CC §874). Acquisition under authority of the state is governed by regulations, and the basic regulation in effect at the time the code was adopted was a Decree of September 9, 1884, one of the earlier series of laws relating to abʿadiyahs and similar concessions. In addition to acquisition by means of government concession, an Egyptian (foreigners were excluded under the new code) may acquire immediate ownership of such land if he cultivates it or builds upon it, subject to divestment for nonuser for a period of five successive years during the first fifteen years after acquisition. The code explicitly provided that acquisition by cultivation did not require the government’s permission, and thus settled a question that had been unresolved under the former codes. Although the actual rules on appropriation were not basically changed from those in the earlier codes, it is significant that the characterization and treatment of this category of state-owned lands are quite different in the new code. These land are no longer treated under a general rule relating to unowned property; rather, they are treated as a special category of state-owned lands, distinct from the lands of both the private and public domains. They were characterized as such in the legislative drafting committees, where they were recognized as the mawat lands of Islamic law.16

prescription

In the Civil Code of 1949, the rules on prescription are included under a new section on “possession” (CC §§949–84). This section prescribes rules governing possession in general (rules that were lacking in the former codes) and treated prescription—acquisitive prescription—as one of the consequences of possession (CC §§968–77). The basic rules on the required periods of prescription do not vary from the former codes, but the new code adds an explicit provision relating to waqf properties. That provision (also applicable to claims involving hereditary rights) adopts the rule derived from Islamic law establishing the applicable period of prescription at thirty-three years, and it thus settles a question that had long been controversial under the former

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codes (CC §970). Furthermore, although the preliminary draft of the new code provided that periods of prescription should be measured according to the Islamic lunar calendar, a practice followed by the courts under the former codes, this provision was rejected and, consistent with a general rule of the code (CC §3), the Gregorian calendar was adopted for these purposes.17

preemption

The rules on preemption contained in the Decrees of 1900 and 1901, amending the former Civil Codes, are considerably modified by the Civil Code of 1949, although the basic law remained the same. As discussed above, the development of the doctrine of preemption under the Civil Codes was particularly significant since it involved one of the two major areas (the other being the law of waqf) in which a comprehensive corpus of Islamic law was integrated into the Civil Law. As such, it represented a development of the Shariʿah along the lines of internal reform as well as a development of the Civil Law in terms of an integration of foreign and traditional elements. It was one of the most intensively discussed topics during the drafting and passage of the new code in Parliament, perhaps the most controversial topic in the code. The positions taken in that discussion ranged from those pressing for complete abolition of the neighbor’s right of preemption to those supporting the extension of the right beyond existing legislation, in conformity with the Shariʿah. In this respect, the various shades of opinion on the role of the Shariʿah in modern law, ranging from the secularist to the traditionalist, were all represented. As an indication of the reasoning underlying each of these polar positions, a summary of some of the arguments adduced is worth noting. For example, the arguments employed in support of the abolition of the right of preemption included the following: (1) the right of preemption was a restriction on the right of private property; (2) exercise of the right resulted in increasing the size of large landholdings, a socially undesirable consequence; (3) with increasing demand for land, the right encouraged speculators to purchase many parcels of land in the hope of utilizing their preemptive rights in the future to

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acquire neighboring properties; (4) the right did not exist in modern, Western legal systems; (5) there was no longer any compelling social or economic reason to retain the right, since the character or identity of one’s neighbors was unimportant in modern society; (6) in any case, the right did not actually exist in the Shariʿah, as defined in its broadest terms, but was limited to the Hanafi school only, to which Egypt was no longer bound; and (7) even when permitted in Islamic law, the right had always been regarded as a weak right, whose exercise could be circumvented by means of recognized legal fictions. In opposition to this position, those who supported the retention of the basic Islamic rule presented arguments such as the following: (1) the rule was a rule of the Shariʿah, the traditional law of Egypt; (2) the rule had become part of modern legal tradition, applied as part of the Civil Law for decades; (3) the reason for the rule, the protection of neighbors from potential harm by strangers, was as valid in contemporary agricultural Egypt as it had been in earlier centuries; (4) that the exercise of the right could increase the size of landholdings was as beneficial to a small farmer as it was to a large landowner; and (5) the exercise of the right harmed neither a seller nor an intended purchaser of land, since the preemptor was bound to pay the contracted sales price, plus costs.18 The underlying premises of these arguments included social, economic, and even political considerations. In this respect, the legislators’ reasoning and approach were similar to the approach followed in the reform of other areas of the Shariʿah. The legislators’ ultimate resolution of their problem was also similar, for the law of preemption in the new code reflects a compromise position between two extremes. Again, the methods used to effect such a compromise were similar to those used in other Shariʿah reforms: they involved a retention of the basic Islamic rule, modified by eclectic selection from among all the Islamic schools of law, restricted by procedural requirements, and otherwise amended to conform to other rules or principles of modern Egyptian law. With respect to parties in whom the right of preemption is vested, the new code retains the basic rule permitting neighboring owners to preempt. Moreover, it enlarged the class of preemptors by adding to it a holder of the right of hikr, who was permitted to preempt in the event of a sale of the property to which his right attached (CC §936).

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This addition was made for the purpose of conforming the treatment of hikr rights to the treatment of usufructuary rights in general. In almost all other cases, however, the right of preemption was further limited. Most of these limitations were imposed by more stringent procedural requirements, which, if not met, result in a loss of the right (CC §§940–43). Others were imposed by enlarging the class of sales to which the right could not apply, such as sales by public auction or sales to certain relatives (CC §939). Another significant limitation was contained in a rule providing that the right could not be exercised in all other cases prescribed by law (CC §948). It was on a basis of this rule that the Agrarian Reform Law prohibited the exercise of the right with respect to transfers of ownership made in accordance with its provisions (arts. 9 and 4A, as amended by Law 311 of 1952).

contract

Under the provisions on property rights, the Civil Code of 1949 prescribes the general rule that the right of ownership and other real rights may be transferred by contract (CC §932). The code further provides, however, that a transfer of real property rights is not effective—even between the contracting parties—unless the requirements of the recording laws are met (CC §934). In this respect, the 1949 code differs from the former codes, which made recording a condition for the validity of the transfer as against third parties only. Furthermore, the 1949 code, unlike its predecessors, does not contain provisions on recording but leaves such matters to special recording laws, which are much more comprehensive and complete than the limited provisions of the former codes.19 As in the earlier codes, rules on specific contracts are included under the provisions on obligations in general. The new code, however, provides much wider coverage and also more detailed organization. For example, contracts are classified according to whether they affect ownership rights or merely the use of property (or the use of services, e.g., contracts of hire, a class not considered here). In addition, some of the specific contracts are further subdivided into special types of contracts of the same general class.

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Sale. In general, most of the provisions on sale that had been derived from Islamic law in the earlier codes are retained in the new code (see CC §§419, 425, 433, 437). In addition, the rules on sales made during an illness immediately preceding death are clarified and also related to the general rule treating all such transfers as testamentary dispositions (CC §§477, 478, 916). However, the sale with a power of redemption, the traditional Islamic security device, is explicitly rejected in the new code, which provides that such sales are void in all cases, regardless of whether they were intended as security transactions or were true sales (CC §464). Gift. The treatment of gifts under the Civil Code of 1949 marks a complete departure from the former Civil Codes. Whereas the former codes treated the rules on gifts as a part of the law of personal status, the new code includes these rules under the Civil Law. As a formal contract, gifts are included along with the other specific contracts in the new code. However, with the exception of the rules relating to form, which were taken from the earlier codes, the new code provisions are derived from Islamic law. In this respect, the Civil Law of the contract of gift is similar to the Civil Law of preemption; both represent integral segments of the Civil Law that have been derived from Islamic law. In this connection, the legislators of the new code referred to Muhammad Qadri’s nineteenth-century compilation of personal status law, rather than the traditional Shariʿah textbooks, as the Shariʿah source for the modern Islamic rules on gifts.20 Loan. The Civil Code of 1949 also treats the contract of loan in a manner different from the former codes. The loan for consumption, including the common loan of money, is distinguished from the loan for use. The former is deemed to involve a transfer of ownership coupled with an obligation to return similar property (CC §§538–44), while the latter is treated, under a different section, as a contract relating to the use of a thing (CC §§635–45). Although the loan for consumption is similar to the Islamic ʿariyah, and although there are citations in the legislative memoranda to Islamic textbooks (Muhammad Qadri’s code and the Majallah) in connection with the code provisions governing this loan, it does not appear that these provisions were derived from Islamic law. Nor were they limited, however, to derivation from French law, for several modern codes of other countries were referred to in their drafting.21

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Lease. Along with the loan for use, the new Civil Code treats the contract of lease as a contract relating to the use of property. The provisions on lease are reorganized, and Islamic law is utilized much more extensively as a source of law than was the case in the former codes. For example, in the general provisions on lease, the new rules relating to the termination of a lease upon the death of the lessor or lessee (CC §601) and termination because of unforeseen circumstances (CC §608) are derived from Islamic law. The influence of Islamic law is most pronounced, however, in new sections of the law dealing with specific leases: the lease of agricultural land, the sharecropping contract, and the lease of waqf property. In respect of agricultural leases, it appears that the recognition of the distinct character of such a lease was based on Islamic law. Furthermore, specific rules governing such leases were derived directly from Islamic rules of law (CC §§615–16).22 As for the rules on sharecropping arrangements, these are based on the Shariʿah rules governing muzaraʿah contracts. In general, the code prescribes certain rules that govern these arrangements in the absence of contract terms or of applicable custom; in all other cases, the general rules on lease govern (CC §620). A preliminary draft of the code added that in the absence of such rules, the Shariʿah was to apply. This draft provision, however, was deleted as unnecessary on the grounds that the reference to custom was understood to include the rules of Islamic law and that, in any case, the Shariʿah was a recognized source of law to which reference must be made in all such cases.23 The third type of lease specified in the code, the lease of waqf property, is also based on the Shariʿah. Its inclusion in the Civil Code is another example of how a corpus of Shariʿah law was integrated into the Civil Law. Some controversy attached to its inclusion, however, for there were those who held that the Shariʿah rules on waqf leases should not be made part of the Civil Law and that the courts should continue to apply the decisional law on waqf leases that had previously been developed in the absence of applicable code provisions. In connection with this contention, it was also maintained that the distinctions drawn between tenants of waqf properties and tenants of other properties were no longer justifiable. Nevertheless, the Shariʿah rules were adopted, primarily because they had always been the basis for

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the law of waqf, whether that law was applied in the Civil Courts or in the Mahkamahs. To the extent that this law was applied in the Civil Courts, it was felt that it should be codified and thereby brought into conformity with the Civil Law in general.24

pledge and mortgage

Unlike the French Code or the former Egyptian Codes, the Civil Code of 1949 deals with dispositions of property in connection with security transactions under a separate and distinct section. That section governed accessory real rights, or real securities, and included the rules on pledge, which had been treated as a specific contract under the earlier codes. In general, the two basic real securities in the new code are the formal pledge and the possessory pledge. The formal pledge, or mortgage, normally applies to real property only, does not involve the transfer of possession to the creditor, and is valid against third parties only if recorded (CC §§1030–82). It is, in effect, the hypothec of the former Civil Codes, which had been derived from French law. The possessory pledge, on the other hand, applies to personalty or realty and involves a transfer of possession to the creditor (CC §§1096–1129). As applied to real property, it is similar to the antichrèse of French law; as applied to personalty, it is similar to the French gage. The new code contains no provision for the gharuqah, the possessory pledge formerly applicable to kharaji lands. Furthermore, the code explicitly prohibits the contract of sale with a power of redemption (CC §465). In 1923 the Civil Codes had been amended to provide that such a sale was invalid if it constituted, in fact, a pledge arrangement (Law 49 of 1923), but the Civil Code of 1949 went further and abolished all such sales regardless of their purpose. This prohibition resulted from the many abuses connected with these arrangements, among which was the charging of usurious interest rates. Somewhat similar abuses had existed in connection with the possessory pledge of real property, and its prohibition was also considered in Parliament. However, in view of its being the most popular security arrangement in agricultural areas, where recorded mortgages were not looked upon with favor, the possessory pledge was retained in the new code.25

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The 1949 law thus reflects a development from security arrangements that required a transfer of possession or of ownership—the only arrangements recognized in Islamic law—to security arrangements that operate on the basis of recording statutes, without the necessity for possession in the creditor. Yet although the sale with a right of redemption has been abolished, it appears that the other traditional form of security arrangement, the possessory pledge, is still very important in Egypt.

S tate L ands State-owned landholdings in the possession of private parties, such as the traditional Islamic kharaji lands, had lost all significance as a separate form of land tenure long before the enactment of the Civil Code of 1949, and consequently no such form of land tenure was recognized in that code. Under the code, land is classified either as private property or as waqf, and all real rights in land held by private parties must derive from one of these two general classes of property. With respect to other lands owned by the state, the Civil Code of 1949 generally followed the doctrines, based on French law, adopted in the earlier Civil Codes and developed by the Egyptian courts: lands owned by the state in its capacity as a private party (a juristic person; see CC §§52–53) are part of the private domain and are held subject to the same rights and obligations as those of a private person. State-owned land that is appropriated, in fact or by law, to a purpose of public utility is part of the public domain and as such is inalienable (CC §§87–88). Since cases involving lands in the public domain come within the jurisdiction of the administrative courts and are governed by administrative law, the Civil Code contains only a few provisions relating to these lands.26 The only category of state-owned land that is separately treated in the Civil Code and that is traceable to traditional Islamic law is uncultivated land that has no owner and that may be acquired pursuant to the rules on appropriation (CC §874). These lands apparently continue to be treated as a separate category of state-owned land distinct from either the private domain or the public domain. They are, in effect, the mawat lands of Islamic law.27

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W aqfs Unlike its predecessor codes, the Civil Code of 1949 recognized the distinct nature of property held in waqf and prescribed specific rules of law governing waqf cases coming within the jurisdiction of the National Courts. In general, that jurisdiction encompassed all waqf cases other than those involving the establishment of waqfs or their internal management (art. 16, Law 147 of 1949). The latter remained under the jurisdiction of the Mahkamahs and were governed by the Shariʿah as it was modified and supplemented by the Law of 1946. Although a Parliamentary draft of the Civil Code of 1949 contained a provision defining a waqf (§118), this provision was deleted in the law as enacted. However, the code contained some general provisions that in effect defined the civil status of a waqf (a definition unnecessary in Islamic law and unclear under the earlier codes), including, for example, a provision defining a waqf in terms of a juristic person, attributing to it the characteristics generally attributed to such an entity by law (CC §§52–53; see also §§78, 731). In addition, the new code contained specific provisions relating to the use and disposition of waqf property, all of which were derived from Islamic law. Some of these, relating to the lease of waqf land, were incorporated into the law governing leases in general (CC §§628–34). Others were special provisions defining and regulating the right of hikr, which was deemed to be a separate and distinct usufructuary right applicable to waqf properties, and related rights based on the ijaratayn and khulu of Islamic law (CC §§1013–14). Still other provisions specifically relating to waqf properties were incorporated into the rules on preemption (CC §939), prescription (CC §§375, 970), servitudes (CC §1027), and appropriation (CC §872). The modern institution of waqf, as defined in the Law of 1946 and recognized in the Civil Code of 1949, bore a striking resemblance to the modern Common Law trust. The new rule permitting personal property to be constituted in waqf, in conjunction with new limitations on the duration of a waqf, were the principal points of similarity in this regard. In fact, the rule limiting the duration of a waqf is so similar to the Common Law “rule against perpetuities,” particularly in its use of a measuring device so similar to the Common Law standard of “lives in being,” that a derivation of the Egyptian rule from the Common Law trust is

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suggested. Nevertheless, on the basis of research in the literature on the subject, as well as of a series of interviews with Egyptian lawyers and jurists, some of whom participated in the legislative reform, it appears that the modern waqf was not modeled on the Common Law trust and that the modern rules of waqf were not derived from or inspired by the law of trust. Rather, each innovation in the law of waqf was made in direct response to criticisms leveled against the traditional institution of waqf in an attempt to remedy the grounds for such criticism and thus to preserve the basic institution. In terms of attaining such an end, the legislation was successful, for the principal grounds for complaint were removed or limited. Regardless of whether the new statutory waqf was influenced by the Common Law trust, however, the resemblance was so close in effect that the waqf might have been developed and used in much the same manner and for much the same purposes as the modern trust in Common Law jurisdictions. However, its potentialities in this direction were never developed in Egypt.28 The new institution could evidently not be separated from its historical abuses and so remained the target of those reformers who had pressed for its complete abolition. Their ends were achieved for the most part in 1952, under the revolutionary government. Within months after the revolution of 1952, the new government had promulgated the basic law of land reform, limiting individual landownership to 200 faddans per person. A few days later, another law was promulgated as part of the general land reform program, which forbade the creation of all waqfs other than charitable waqfs and annulled all noncharitable waqfs then in existence (Law 180 of 1952, arts. 1–2). In its Explanatory Memorandum accompanying that law, the government mentioned among the reasons for abolition the economic arguments that had been adduced against the institution in earlier years, as well as such a reform being necessary in order to implement the agricultural land reform law. The latter law had exempted waqfs from its limitations on landownership (apparently because any attempt to include them would have caused considerable administrative difficulty), so that supplementary legislation was necessary if large waqf holdings were to be brought under the control of the Agrarian Reform program. This consideration, coupled with continuing pressures for re-

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form based on economic grounds, was the underlying rationale for the abolition of family waqfs. No attempt was made to justify the reform in terms of the Shariʿah, nor was any mention of the Shariʿah made in the government’s memorandum.29 The Law of 1952 did not completely abolish the institution of waqf, for charitable waqfs were not affected by it. It has been estimated that at the time of the reform approximately 600,000 faddans were constituted in waqf, representing about 10 percent of the total cultivated area, of which approximately 130,000 faddans were in charitable waqfs or under the Ministry of Waqfs.30 Accordingly, the law of waqf remained a significant element in the property law of Egypt even after the abolition of family waqfs in 1952. Since the reform of 1946 had not modified the nature of charitable waqfs as drastically as it had family waqfs (for example, the rule against perpetuities was not binding on charitable waqfs), waqf law after 1952, limited as it was to charitable waqfs, did not differ radically from the Shariʿah law of waqf. There have been indications that the status of waqfs in the Egyptian economy may undergo significant changes that could alter the character of that institution in Egypt. For example, large tracts of agricultural land held in waqf—charitable waqfs—have been incorporated into the Agrarian Reform program and distributed to individual farmers under that program. In addition, the administration of urban waqfs under the Ministry of Waqfs was reorganized with a view toward closer coordination between the policies of that ministry with respect to land use and the policies of the government with respect to urban development, social services, and public works.31 It is not clear whether such measures have involved basic changes in the law of waqf itself. It is conceivable, however, that these developments could ultimately result in the complete abolition of the waqf as a separate form of land tenure and the secularization of related functions and services hitherto performed by the religious authorities. Such a result would mark the diminution of a traditional institution that has been a most significant component of the system of land tenure for centuries, and one that has survived, more or less intact, throughout the modern reform movements of the last one hundred years in Egypt.

140   Property Law Under the Civil Code of 1949

D evelopments U nder

the

R evolutionary G overnment

The Civil Code of 1949 remains the fundamental law of Egypt in the fields of property law and contracts, but since 1952 there have been developments in Egyptian law, reflecting broader developments in Egyptian political structure and society, which have had far-reaching consequences in all segments of the legal system. The year 1952 marked the beginning of the Egyptian Military Movement and the inception of the revolutionary government of Egypt, under whose administration several major changes in the legal system have been effected. Perhaps the most significant of these have been in the area of property rights. One of the principal causes and justifications for the revolution was the unequal distribution of landownership, the most important source of wealth in Egypt, prior to 1952. It was estimated, for example, that in 1950 about two million Egyptians owned holdings of one faddan or less, constituting in the aggregate approximately 780,000 faddans, while about 1,700 individuals each held more than 200 faddans, constituting a total of about one million faddans, or approximately one-fifth of the total cultivated land in Egypt. Moreover, one-half of this latter amount was owned by about 250 individuals.32 Accordingly, one of the first measures undertaken by the new government in implementing its program was directed at a redistribution of landownership. This goal was the principal aim of the Agrarian Reform Law of 1952 (Law 178 of 1952), promulgated within a few weeks after the establishment of the new regime. The first article of the original Agrarian Reform Law prescribed the general rule that no one person could own more than 200 faddans of agricultural land. Specifically exempt from this limitation were certain corporate owners, as well as individuals who held or acquired desert or wasteland for purposes of reclamation (art. 2). Also exempt were waqfs of all kinds (although family waqfs were abolished by law within a few days after the promulgation of the Agrarian Reform Law). Provision was made for the expropriation of excess holdings over a five-year period (art. 3), during which time landowners subject to expropriation were permitted to dispose of their excess land to their children—up to a maximum of 100 faddans—or to small landowners—up to a maximum of 5 faddans per person (art. 4). For purposes of indemnification, the expropriated land was valued at seventy times its annual taxes (since tax

Property Law Under the Civil Code of 1949  141

assessment values had generally been considerably lower than market values, valuations for purposes of indemnification under this formula were also lower than market values), and payment was made in the form of government bonds, redeemable in thirty years and bearing 3 percent interest (arts. 5–7). Provision was also made for the distribution of expropriated land to Egyptian farmers who qualified under conditions prescribed by the law, one of which required that as a result of such distribution the total holdings of each recipient were to comprise from 2 to 5 faddans (art. 9). In return for the land they received, the farmers were to pay, over a thirty-year period, the price paid by the government for the land, including the 3 percent interest, plus a 15 percent service charge to cover costs of administration (art. 11). Administration of the program was vested in a special agency, subsequently designated as the Higher Committee for Agrarian Reform, which was given extensive powers with respect to the interpretation and implementation of the law, including judicial powers in disputes arising under its provisions (art. 12, as amended). Its jurisdictional powers in this respect were supplemented by judicial subcommittees as well as by new courts that were established to hear specified classes of cases involving the Agrarian Reform Law (arts. 13–13a, as amended). In effect, judicial jurisdiction over the new program was not left to the ordinary Civil Courts, but was vested in the administrative system of courts in a special jurisdiction established by the Agrarian Reform Law and supplementary statutes.33 Although the primary significance of the new law was in its quantitative limitation on landownership in conjunction with a redistribution of lands, it also contained other provisions bearing upon the rights of ownership in agricultural land in general. Among these were provisions governing the relationship between landlord and tenant, including, for example, provisions regulating maximum rents, provisions requiring that land be leased only to tenants who farmed it themselves, and provisions prescribing a minimum period of three years for the duration of leases (arts. 31–37). In addition, there were also provisions prohibiting, in certain cases, the partition of landholdings into parcels of less than 5 faddans (art. 23–24). In addition to the Agrarian Reform Law of 1952 and the subsequent and continuing series of laws amending and supplementing the basic

142   Property Law Under the Civil Code of 1949

law, the revolutionary government was responsible for other legislation of great significance in the modern history of property law. Among these were the law abolishing family waqfs and the law abolishing the separate system of personal status courts, both of which have been discussed above. The former was part of the general program of land reform, while the latter was a continuation of the earlier development toward a national, unified system of courts organized along the lines of the secular legal systems of other modern nations. In these respects, legal development under the revolutionary government has been a continuation of a course of development begun in the early twentieth century. In other respects, however, an entirely new course has been charted, the ends of which have not yet been clearly defined. The earliest reforms of the revolution in the area of property law—the land reform program and the abolition of family waqfs—do not necessarily reflect such a basic change in direction, for they may be considered as specific adjustments to specific problems, consistent with earlier trends in legal development. In fact, both reforms had been advocated and discussed in Parliament long before 1952.34 Yet those measures foreshadowed a new approach that marked the beginning of an internal economic revolution in Egypt—a revolution that was actively undertaken only several years after the coup d’état of 1952. It was not until 1960 that the guiding principles of the new regime, based on the Constitution of 1956, were given precise definition in their application to the domestic economy. These principles, generally described as those of a socialist, cooperative democracy, were the basis of a new program of “Arab socialism,” which assumed its definitive character in a series of laws promulgated in July 1961 in connection with the ninth anniversary of the revolution. With regard to property rights in land, the most significant of these laws was promulgated on July 25 (Law 127 of 1961), reducing the maximum amount of land that could be owned by one person from the original limit of 200 faddans to 100 faddans. For purposes of indemnification, the value of the expropriated land was determined in the same manner as under the Law of 1952, but indemnification was made in the form of fifteen-year government bonds bearing 4 percent annual interest. The new law also placed further restrictions on property rights in land by forbidding any per-

Property Law Under the Civil Code of 1949  143

son to lease, occupy, or otherwise take possession of more than 50 faddans. Land reform legislation was further modified by a supplementary law (Law 128 of 1961) that reduced by one-half the principal amounts outstanding on the debts owed to the government by recipients of land distributed under the Agrarian Reform program and that also reduced by one-half the interest due on such amounts.35 While there is no clear indication that any of these decrees were explicitly based on Islamic law, it is noteworthy that the theoretical basis of and justification for the overall program has been linked with the Shariʿah. Under the new regime, the role of Islamic tradition was given new significance as a factor in Egyptian nationalism. An early manifestation of this development was the official recognition of Islam as the state religion in the Constitution of 1956.36 In connection with the promulgation of the Laws of July 1961, President Nasser described the early Islamic state as the first socialist state, thus lending support to his new program of Arab socialism. Moreover, he justified this description, in part, by specific reference to rules of Islamic law: one was the traditional rule of property law that all men are partners in water, pasture, and fire; another was the Islamic institution of almsgiving, or religious tax.37 It is not yet clear what practical effect this attitude, which is evidenced in many such policy statements, will have on the role of Islamic law in future legal development. In any event, the status of Islamic law under the revolutionary government was not diminished in importance as compared to its role in the earlier reform movement of the twentieth century. In both periods, Islamic law has served at least as a symbol for a traditional, national law of Egypt, and it became a significant factor in the modern nationalist movement. Beyond that, the extent to which Islamic law will actually be utilized as a source of law in the future formulation of modern legislation, a goal actively pursued in the earlier reform movement, remains to be seen. Whatever importance Egypt may ultimately ascribe to the Shariʿah as a source of law, it is apparent that the government’s conception of other aspects of legal development differs considerably from earlier ideas. Progress is no longer defined primarily in terms of Westernization. Rather, it is regarded as an internal development, responding to internal requirements as defined by internal goals; it is not regarded as

144   Property Law Under the Civil Code of 1949

based on or derived from foreign legal systems, particularly Western systems. In many respects, such a characterization is quite accurate: most of the changes made in the legal system in the 1950s, particularly the stringent restrictions imposed on private property rights, are manifestly not derived from Western legal sources.38 It may also be observed that such measures, although they may be attributed to Islamic political theory on the nature of the state, are not directly derivable from the general rules of property law in the Shariʿah. Whatever effect the new approach may have upon the future course of legal development in Egypt, the basic law governing property rights in that country, and the basis for any future development of that law, is the Civil Code of 1949. That code is a product of the early-twentiethcentury reform movement, which in turn had as its focal point the legal system established under the reform of the nineteenth century. That system had been created, in effect, by the superimposition of a Western Civil Code system on traditional Islamic institutions; the aim of the twentieth-century reform was a closer integration of the foreign and traditional elements in that system and a combination of those elements into a national law, administered by a unified national judicial system, designed to serve the needs of a modern, developing nation having strong traditional ties. In large measure, this aim was realized in the establishment of the National Court system and the enactment of the Civil Code of 1949. The success of Egypt’s efforts is reflected in the subsequent adoption by most of the countries in the Middle East of laws based on the Civil Code of 1949—in some cases virtually verbatim. Whether the Civil Code of Egypt, reflecting as it does the legal development of that country during the first half of the twentieth century, will continue to serve as the basic law of property in Egypt is, of course, a question for the future. So long as it does, however, property law in Egypt will be based on and will reflect a synthesis of traditional Islamic law and Western Civil Code.

N otes

1. T he C lassical I slamic L aw

of

P roperty

1. On the nature of the ʿushr as a tax, see Abu Yusuf, Kitab al-Kharaj (Bulaq, 1302 A.H.), 78; Ibrahim al-Halabi, Multaqa al-Abhur (Cairo: M. A. Sabih, n.d.), 34–41; Yahya ibn Adam, Taxation in Islam, vol. 1: Yahya Ben Adam’s Kitab al Kharaj, trans. A. Ben Shemesh (Leiden, 1958), 78–79, 83, 120–21; N. P. Aghnides, Mohammedan Theories of Finance (New York, 1916), 283–94; A. Grohmann, “ʿUshr,” Shorter Encyclopedia of Islam, ed. H. A. R. Gibb and J. H. Kramers (Leiden, 1953), 610–11. 2. See Abu Yusuf, 35, 37, 39; Al-Shaybani, Al-Jamiʾ al-Saghir (in margin of Abu Yusuf), 74; Yahya, 13; Abu ʿUbayd ibn al-Qasim, Kitab al-Amwal, ed. M. al-Faqi (Cairo, 1353 A.H.), 55–57; Al-Shafiʿi, Kitab al-Umm (Bulaq, 1321–1325 A.H.), 4:103; Halabi, 120–21, 125; Ibn al-Human, Fath al-Qadir (Cairo, 1356 A.H.; 8 vols., containing Marghinani’s Bidayah and Hidayah and commentaries by Babarti and Saʾdi Chalabi: hereinafter collectively cited as “Fath”), 4:303, 350, 358–59; Aghnides, 360–63. 3. See Abu Yusuf, 13–15 (statement of ʿUmar’s policy); Yahya, 29–33; Abu ʿUbayd, 57–61. On the historical background and nature of the kharaj, see Aghnides, 377–92; L. Milliot, Introduction a l’étude du droit musulman (Paris, 1953), 498, 535; T. Juynboll, “Kharadj,” Shorter Encyclopedia of Islam, 245; D. C. Dennett, Conversion and the Poll Tax in Early Islam (Cambridge, Mass., 1950), 20–25. 4. See A. N. Poliak, “Classification of Lands in the Islamic Law and Its Technical Terms,” American Journal of Semitic Languages and Literatures 57 (1940): 50–58;

146   1. The Classical Islamic Law of Property M. Worms, “Recherches sur la constitution de la propriété territoriale dans les pays musulmans,” Journal Asiatique, 3d ser., 14 (1842): 391–97; and Ben Shemesh in introduction to Yahya, 15, 17, based on his translation of ʿadi al-ard in tradition on 62: but cf. meaning of this term in Abu ʿUbayd, 278; Abu Yusuf, 36–37; Al-Mawardi, Al-Ahkam al-Sultaniyah (Cairo: M. Sabih, n.d.), 183. 5. These are the sulh and ʿanwah lands, which are the basic categories; there are other classifications employed in addition to these, including several types of sulh lands. The Shafiʿis seem to consider abandoned lands as a third major category: see Mawardi, 133; Shafiʿi, 4:103. Also see Abu Yusuf, 13–15, 35–36, 39; Fath, 4:303–5; Al-Quduri, Mukhtasar, text with commentaries in A. Al-Marghani and A. Yusuf, Al-Shihab fi Tawdih al-Kitab (Cairo, 1948), 3:155–58; Malik, Al-Muwattaʾ (Cairo, 1950–1951), 1:312; Khalil, Mukhtasar, text with commentaries by al-Dardir and al-Dasuqi, in Dasuqi’s Hashiyah (Cairo, 1373 A.H.), 2:189–90, 202–3 (hereinafter collectively cited as “Dasuqi”). 6. The Hanafis made little distinction, for ownership purposes, between sulh and ʿanwah lands. (For other purposes, see Quduri, 3:166; Abu Yusuf, 16.) According to the Shafiʿis, some categories of sulh lands were not mulk; see Mawardi, 133–34, 142, 166. 7. See Abu Yusuf, 35; Fath, 4:304, 359; Halabi, 125; Quduri, 3:165; Al-Khassaf, Kitab Ahkam al-Awqaf (Cairo, 1902), 34; Al-Tabari, Kitab Ikhtilaf al-Fuqahaʾ, ed. J. Schacht (Leiden, 1933), 226. 8. See Mawardi, 132, 142, 166, 168; Al-Shirazi, Kitab et-Tanbih, trans. G.-H. Bousquet (Algiers, 1949), 4:51; Dasuqi, 2:189–90, 202–3; Abu ʿUbayd, 81, 83, 155– 56; Tabari, 220–22, 226–27. 9. Abu Yusuf, 14, 15. 10. See Dasuqi, 2:189; Milliot, 493, 500–501; Aghnides, 433–35; W. Heffening, “Wakf,” Shorter Encyclopedia of Islam, 624; F. Lokkegard, Islamic Taxation in the Classical Period (Copenhagen, 1950), 55–56. 11. See Abu ʿUbayd, 79–80, 81, 83, 85, 89, 91, 94, 156; Tabari, 226; Yahya, 118; Mawardi, 142, 166, 168; Al-Ghazzali, Al-Wajiz (Cairo, 1318 A.H.), 2:117; Dasuqi, 2:189, 203; Al-Nawawi, Minhaj al-Talibin (Cairo, 1338 A.H.; containing Zakariya’s Manhaj al-Tullab in margin: hereinafter cited as “Minhaj”), 138; Fath, 3:220; Aghnides, 364. 12. See the section of this chapter entitled “Later Development of the Islamic System of Tenure in Egypt.” 13. The definition of this category of land is not precise, nor is it the same for all schools. In general, it comprises what were known as the Sawafi lands, a derivative of safi, or the portion of the booty that was set aside for the use of the Prophet, in contrast to the portion that was appropriated to the use of the community in general. See Al-Nasafi, Talibat al-Talabah (Cairo, 1311 A.H.), 83–84; Al-Jurjani, Al-Taʾrifat (Cairo, 1938), 117; Al-Tahanawi, Kashshaf Istilahat alFunun (Istanbul, 1318 A.H.), 1:955; Quduri, 3:161; Lokkegard, 43; A. K. S. Lambton, Landlord and Peasant in Persia (London, 1953), 18, 25. On the status of these

1. The Classical Islamic Law of Property  147 lands in general, see Abu Yusuf, 32–34; Yahya, 45–46; Abu ʿUbayd, 279, 282, Dasuqi, 4:68; Mawardi, 133, 142, 185–86; Shafiʿi, 4:103; Tabari, 221–22. The Malikis and Shafiʿis treated them as in the nature of waqfs, but in all cases the effects were the same. 14. The Malikis and Shafiʿis did not, as a general rule, permit an iqtaʿ tamlik from these lands; see Mawardi, 185–86. For the early development of the iqtaʿ system, see Lokkegard, 14–19; Lambton, 25–72; Aghnides, 500–511; Dennett, 25–31; M. Sobernheim, “Iktaʿ,” Encyclopedia of Islam, ed. A. J. Wensinck et al. (Leiden, 1913–1938), 2:461–63; C. Cahen, “L’évolution de l’Iqtaʿ du IXe au XIIIe siècle,” Annales Economies-Sociétés-Civilisations 8 (1953): 25–39, 45–48; A. I. Silvestre de Sacy, “Mémoires sur la nature et les révolutions du Droit de Propriété territoriale en Egypte,” reprinted from Mémoires de l’Institut Royal, in Publications de l’Institut Français d’Archéologie Orientale: Bibliothèque des Arabisants Français, 1st ser., 2 (Paris, 1824), 196–99. 15. On the definition of mawat lands and their disposition, see Abu Yusuf, 36–37; Fath, 8:136–37; Halabi, 246; Al-Kasani, Al-Bidaʾiʾ (Cairo, 1327 A.H.), 6:194– 95; Mawardi, 171, 183–84; Khalil, Code musulman: Rite Malékite–Statut réel, ed. and trans. N. Seignette (Paris, 1911), 381–84. With respect to prior permission of the state, Abu Hanifah alone among the principal Hanafi jurists required such permission in all cases of acquisition of mawat lands; some jurists in other schools required permission in certain cases only (see Dasuqi, 4:69). On the early development of these rules, see J. Schacht’s analysis in Origins of Muhammadan Jurisprudence (2d ed.; Oxford, 1953), 202–3. 16. Abu Yusuf, 37; Yahya, 62–66; Abu ʿUbayd, 285–91; Mawardi, 171–72; Malik, 2:121; Dasuqi, 4:66–68. 17. See, e.g., Dasuqi, 4:68. 18. See Abu Yusuf, 37; Kasani, 6:194; Khalil, 383; Mawardi, 183–84; Ibn ʿAbidin, Radd al-Muhtar (Bulaq, 1323–1326 A.H.), 7:273; Worms, 368–71; Milliot, 492–93. 19. For traditions and rules on water rights, see Abu Yusuf, 54–56; Yahya, 69–71, 75, 76, 78; Abu ʿUbayd, 300–302. 20. See Abu Yusuf, 58–59; Abu ʿUbayd, 294, 297–98, 300; Dasuqi, 4:66–69; Mawardi, 178–81; Yahya, 71, 72; Quduri, 3:76; Kasani, 6:193–94; Fath, 5:197–98; Lokkegard, 20–23, 34; Aghnides, 513–22. 21. See Mawardi, 180–82; Fath, 8:335. 22. See Abu Yusuf, 12–13; Mawardi, 189–90; Abu ʿUbayd, 336–38, 342; Fath, 1:537–41; Aghnides, 511–13. 23. The most important qualifications to this general statement are the Maliki rules permitting the revocation of waqfs and permitting waqfs of limited duration in certain circumstances (Dasuqi, 4:75, 87; O. Pesle, La théorie et la pratique des Habous dans le rite malékite [Casablanca, 1941], 19); the Maliki rule forbidding grantors the power of administration (Dasuqi, 4:77, 78); and the rule of Abu Hanifah himself relating to the validity of revocable waqfs (Fath, 5:39–42).

148   1. The Classical Islamic Law of Property In general, the Hanafis permitted only land to be made waqf, while the Malikis and Shafiʿis permitted the creation of waqfs of limited types of personalty (Quduri, 2:59; Shirazi, 2:90; Dasuqi, 4:75). 24. For the traditional interpretation of the early sources and development of the institution of waqf, see Khassaf, 1–17. Also see Heffening (SEI), 624–25; K. Tyabji, Limited Interests in Muhammadan Law (London, 1949), 102–7; L. Milliot, Démembrements du habous (Paris, 1918), 38–66; M. Belin, “Etude sur la propriété foncière en pays musulmans et spécialement en Turquie,” Journal Asiatique, 5th ser., 18 (1861): 506–10. 25. As an example of one of the earlier Hanafi law books containing a systematic treatment of the disposition of rights in private property, see Quduri. For later, more comprehensive works, see Marghinani, with commentaries, in Fath and Kasani. 26. See Mawardi, 246; Abu Yusuf, 59; Fath, 5:502–3. For general discussion, see J. Schacht, “Islamic Law in Contemporary States,” AJCL 8 (1959): 140–44; S. Habachy, “Property, Right, and Contract in Muslim Law,” Columbia Law Review 62 (1962): 452–58; Shaykh Makhluf ’s fatwa in G. Heyworth-Dunne, Land Tenure in Islam (Cairo, 1952), 40–46; Milliot, Introduction, 574–75; M. Morand, Introduction à l’étude du droit musulman algérien (Algiers, 1921), 303; Lambton, 16–17. 27. Although this is a principle that underlies and may be induced from specific rules of law (see examples in following discussion and in Abu Yusuf, 56, 59; Yahya, 69; Fath, 5:502; 8:144, 341), it was not articulated as a general theory in the Shariʿah, nor is it similar in theory to the French doctrine of abus des droits, as modern commentators sometimes imply (see chapter 4 n. 24 and chapter 6 n. 3). For a full discussion, see Schacht, AJCL 8:142–43; Morand, 297–310. Also see M. ʿArafah, Sharh al-Qanun al-Madani al-Jadid: Haqq al-Milkiyah (3d ed.; Cairo, 1954), 240–41. 28. Fath, 5:502–3. 29. See Fath, 8:335, 341–44; Mawardi, 181; Malik, 2:123. 30. Abu Yusuf, 54–56; Fath, 8:144–47; Kasani, 6:188–92. 31. See Kasani, 6:188–91; Fath, 5:204–7. Also see analysis of M. Madkur, AlFiqh al-Islami (2d ed.; Cairo, 1955), 203–20. 32. See Mawardi, 178–82; Fath, 8:335; Lokkegard, 50; Aghnides, 522. 33. See Lambton, 16–17; Schacht, AJCL 8:141; Habachy, 456–57; H. A. R. Gibb and H. Bowen, Islamic Society and the West (London, 1957), 1/2:28–30. 34. For the contract of ʿariyah, see Fath, 7:100–103; for lease, Fath, 7:145–68; Quduri, 2:17–18; for sale, Fath, 5:73–75; for gift, Fath, 8:113, 103–44. 35. The source or evolution of this theory, particularly with reference to any possible connection with Roman law, is not clear. It may be traced back to Shafiʿi himself, who analyzed both the iqtaʿ istighlal and the waqf interest in terms similar to these (Umm, 3:266, 275–76, 280–81). However, such a prominent Hanafi authority as Khassaf recognized no such distinctions in his analysis of

1. The Classical Islamic Law of Property  149 waqf interests; nor does the later analysis of Quduri appear to reflect any fully developed theory of this kind (see, e.g., Quduri, 2:17–18). Later Hanafis, however, did employ this theoretical framework: see Fath, 7:100, 113, 143, 146–48, 166; 8:480–84; Kasani, 4:201. Also see Tyabji, 3–7; Lokkegard, 53–55; Aghnides, 500; Milliot, Démembrements, 4–5, 8–10; M. van Bercham, La propriété territoriale et l’impot foncier sous les premiers Califs (Geneva, 1886), 32–33. 36. Although a beneficiary’s interest in waqf property was in the nature of a usufructuary interest and similar to a leasehold, it is clear that the waqf interest was not a leasehold and not an ordinary usufruct: it was defined and governed by the special law of waqf. See the next section on waqf lands. 37. See Fath, 8:188, 201, 205, 222; Schacht, Origins, 186. 38. Fath, 7:295–96. 39. See Abu Yusuf, 50–51, 133–39; Fath, 8:32–33, 45–48. 40. For general discussion, see articles in Shorter Encyclopedia of Islam by Schacht: “Mirath” (384–88) and “Wasiyah” (632–34). Also see A. A. A. Fyzee, Outlines of Muhammadan Law (2d ed.; Oxford, 1955), 329–78. 41. See Abu Yusuf, 52–54. 42. See Yahya, 68–69; Fath, 7:361, 367–70, 383–84. 43. See Fath, 6:23–25, 70–72; 7:212, 215, 227, 228; Dasuqi, 4:233–35; Khalil, 505–7; Morand, 363–66; D. Gatteschi, Etude sur la propriété foncière en Egypt (Alexandria, 1877), 31–33; P. Aziz, Les biens wakfs et la prescription aquisitive (Cairo, 1921), 13; E. Amar, L’Organisation de la propriété foncière au Maroc (Paris, 1913), 73–78; Habachy, 456–58; Lambton, 69–70; W. Padel and L. Steeg, De la législation foncière ottoman (Paris, 1904), 160–68. 44. See n. 16. 45. Fath, 7:406, 408–12, 435–36, 443, 446–50; Quduri, 2:25–26; Ibn ʿAbidin, 3:264; 5:146–47; Malik, 2:103; Ibn Abi Zayd al-Qayrawani, Al-Risalah, contained in commentary by Salih al-Abi (Cairo, 1944), 230; Ghazzali, 1:129–30. See Schacht, Origins, 219–20. 46. The examples given here would not be valid in all particulars for all schools. For example, many jurists did not permit the grantor to retain a life estate (see Khassaf, 149; Quduri, 2:60; Fath, 5:56; Shirazi, 2:90), although most, except the Malikis, permitted him to retain the administration of the waqf in himself (Khassaf, 205; Fath, 5:60; Dasuqi, 4:77, 78). See n. 23. 47. Examples derived primarily from Khassaf; see also Gibb and Bowen, 1/2:168. 48. See Milliot, Démembrements, 9–13; Heffening (SEI), 625; and n. 35. On the theoretical question of the ownership of waqf property, i.e., of the raqabah, see Khassaf, 20; Fath, 5:39–40; Khalil, 402; Ibn Abi Zayd, 2:205; Quduri, 2:58. 49. Khassaf, 19, 20–21; Fath, 5:40, 47, 48, 52, 58; Shirazi, 2:91; Quduri, 2:59; Khalil, 399; Dasuqi, 4:75, 87; Tyabji, 110–12. 50. Khassaf, 205–7; Fath, 7:150; Shirazi, 2:93; Heffening (SEI), 625; Tyabji, 126–27.

150   1. The Classical Islamic Law of Property 51. See Milliot, Démembrements, 7–17, 20–23; Heffening (SEI), 627; Padel and Steeg, 253–56; Gibb and Bowen, 1/2:177–78; O. Hilmi, A Gift to Posterity on the Laws of Evqaf, trans. C. R. Tyser and D. G. Demetriades (2d ed.; Cyprus, 1922), B-1, B-5, 45–70. 52. See Khassaf, 26–27. 53. Khassaf, 19–20; Fath, 5:43. 54. See Ibn ʿAbidin, 2:51; 3:163; Mawardi, 179, 186; Dasuqi, 2:203; 4:68; Worms, 347; Gatteschi, 10. 55. Khassaf, 34, 35; Fath, 5:39–40; Quduri, 2:11, 58; Shirazi, 2:91; Ghazzali, 1:147–48. The Malikis permit a lessee to create a waqf of his leasehold (Dasuqi, 4:75–76; Ibn Abi Zayd, 2:205). 56. Ibn ʿAbidin, 3:266–67, 404–5; Burhan al-Din al-Tarabulsi, Kitab al-Isʾaf fi Ahkam al-Awqaf (2d ed.; Cairo, 1902), 20–21; F. M. Goadby and M. Doukhan, The Land Law of Palestine (Tel Aviv, 1935), 76. Also see n. 61. 57. The theoretical basis for these limitations is rooted in the characterization of these lands as waqf. For limitations on the state, see n. 8 and n. 10; for limitations on the kharaji holder, see n. 11. 58. For the rules governing mawat lands and the extent of the state’s interest in such lands, see nn. 15–18. 59. See A. N. Poliak, Feudalism in Egypt, Syria, Palestine, and the Lebanon (London, 1939), 29–30; Sobernheim (EI), 462; Padel and Steeg, 108–10. 60. See Poliak, Feudalism, 23, 28; A. N. Poliak, “Some Notes on the Feudal System of the Mamluks,” Journal of the Royal Asiatic Society 1 (1937): 98; Cahen, 23, 33, 48; Sobernheim (EI), 462; Lambton, 26–30, 62; Padel and Steeg, 213–18; Gibb and Bowen, 1/1:52, 238–39. 61. N. Chiha, Traité de la propriété immobilière en droit ottoman (Cairo, 1906), 11–12; Padel and Steeg, 27–29, 238–40; Goadby and Doukhan, 75–79; Gibb and Bowen, 1/2:165–73; A. Grannott, The Land System in Palestine, trans. M. Simon (London, 1952), 128, 137–39; Hilmi, 28–31. See n. 56. 62. See Padel and Steeg, 136–42; Goadby and Doukhan, 155–58. 63. See Mawardi, 183–89; Lokkegard, 15–17; Padel and Steeg, 75–84; J. Deny, “Timar,” Encyclopedia of Islam, 4:767–69. 64. See Padel and Steeg, 75–79. 65. See Ibn ʿAbidin, 2:51; Silvestre de Sacy, 94–97, 189–201; Poliak, Feudalism, 36–37; Lambton, 20–27; Lokkegard, 56–62. 66. Ibn ʿAbidin, 3:263, 266; Mawardi, 186; Lambton, 25–27; Padel and Steeg, 19–21; Poliak, Classification, 55–57; Cahen, 31–32. 67. On the early tax-farms, see Abu Yusuf, 60–62; Lokkegard, 94–98; Lambton, 28–30. 68. See Cahen, 29–30; Silvestre de Sacy, 194–99. 69. See Mawardi, 187–89; Cahen, 28–48; Silvestre de Sacy, 197–99, 207–14; Lokkegard, 59–70; Lambton, 28–33, 66.

2. Traditional Islamic Law in the Modern Era  151 70. See Poliak, Feudalism, 36–40; Poliak, Classification, 61–62; A. N. Poliak, “Le caractère colonial de l’Etat Mamelouk,” REI, 1935, 238–41. 71. See Cahen, 45–48; Sobernheim (EI), 462; Poliak, Notes, 97–102; Gibb and Bowen, 1/1:209n1; Silvestre de Sacy, 219–24; M. K. Mursi, Al-Milkiyah al-ʿAqariyah fi Misr (Cairo, 1936), 70–73. 72. Poliak, Feudalism, 23, 28, 30; Poliak, Notes, 98; Cahen, 48; Silvestre de Sacy, 241–49. 73. The legal status of the rizqah is not clear; generically, the term could cover a variety of property interests, both in personalty and realty. See Silvestre de Sacy, 21, 56–69, 119, 135–38; Poliak, Feudalism, 32–36; Ibn Qudama, quoted in Cahen, 28–29; Grannot, 26–67; Gibb and Bowen, 1/2:173; Y. Artin, La propriété foncière en Egypte (Cairo, 1883), 81–83; Mursi, 74, 77–78; Heffening (SEI), 628; M. A. F. Sanhuri, Qanun al-Waqf (Cairo, 1949), 1:5. 74. Poliak, Feudalism, 61. 75. See Silvestre de Sacy, 43–56, 255–57; Gibb and Bowen, 1/1:259–61; 1/2:37–41; Poliak, Feudalism, 49, 52, 124; Grannott, 329. 76. For a full discussion of the term usiyah and of its derivation, see Silvestre de Sacy, 10–21, 35–36, 40, 131–35; also see Artin, 86; Mursi, 75–79. Cf. Poliak, Feudalism, 72–73 (usya); and Gibb and Bowen, 1/1:261 (ard al-wasiyah). 77. Poliak, Feudalism, 61–62, 64–71; Gibb and Bowen, 1/1:259–62; Aghnides, 376; Artin, 83–87. 78. Ibn ʿAbidin, 3:263; Padel and Steeg, 19–20; Grannotte, 329; Aghnides, 375–76; Gatteschi, 14.

2. T raditional I slamic L aw

in the

M odern E ra

1. For background to the cadaster, see Al-Qawanin al-ʿAqariyah fi al-Diyar al-Misriyah (2d ed.; Cairo, 1901), 8n1; Artin, 88–90, 254–56; A. Khanki, “AlMilkiyah al-ʿAqariyah fi Misr,” MQI 6 (1936): 651–52; Al-Jabarti, Merveilles biographiques et historiques, trans. C. Mansour Bey et al. (Cairo, 1888–1896), 8:278, 347; 9:87–94, 122. 2. See Mursi, 75, 88; H. Seif, La transmission de la propriété immobilière en Egypte (Paris, 1930), 75; H. A. Rivlin, The Agricultural Policy of Muhammad Ali in Egypt (Cambridge, Mass., 1961), 52–54. A development of transitory significance was the use of a tax-farm device, known as an ʿuhdah, which severely restricted the property rights of those peasant cultivators who were subject to it. Its use, however, was not widespread; it was first established in about 1840 (see Decree of 19 Muharram, 1256 A.H.), and its last vestiges were abolished in 1866 (Resolution of the Chamber of Deputies of 16 Shaʾban, 1283 A.H.). See Artin, 128–31; Rivlin, 65–66; Khanki, 657, 659; Gatteschi, 15–20.

152   2. Traditional Islamic Law in the Modern Era 3. Law of 23 Dhi al-Hujjah, 1263 A.H., cited in Qawanin ʿAqariyah, table, 10. See Artin, 280, 100–101; Mursi, 88; Khanki, 658; Rivlin, 73. 4. On the gharuqah, see Qawanin ʿAqariyah, 158; H. W. Halton, An Elementary Treatise on the Egyptian Civil Codes (Cairo, 1904–1911), 2:252; S. Shihatah, AlTaʾrikh al-ʾAmm li-al-Qanun fi Misr al-Qadimah wa-al-Hadithah (Cairo, 1958), 467; W. E. Brunyate, “Tenure of Property—Egypt,” Commentaries on Colonial and Foreign Laws Generally, ed. W. Burge (London, 1914), 4/1:586. 5. Law of 8 Jumada al-Ula, 1271 A.H., cited in Qawanin ʿAqariyah, table, 10. See Artin, 101–2; Mursi, 88–89; Seif, 76. 6. According to Artin (282–84), the first law permitting abandonment was in 1858; according to Khanki (661), it was in 1856. There is no mention of an 1856 law of this nature in Qawanin ʿAqariyah. 7. Law of 24 Dhi al-Hujjah, 1274 A.H. Original text, as promulgated, contained in Mursi, 125–46. 8. Decree of 22 Shaʾban, 1282 A.H., cited in Qawanin ʿAqariyah, table, 16. See Mursi, 90; Khanki, 669. 9. Law of 13 Jumada al-Akhirah, 1288 A.H. Selected provisions in Qawanin ʿAqariyah, 4–5; and Mursi, 85–87. 10. Although the French version of art. 6 of the Muqabalah may be interpreted to support the view that kharaji holders were granted full rights of ownership by that law, such an interpretation is clearly contrary to the explicit provisions of the Arabic text. Compare Législation en matière immobilière en Egypte (2d ed.; Cairo, 1901), 6, with Qawanin ʿAqariyah, 4. 11. Jabarti, 9:316 (5 percent); Khanki, 652 (4 percent). 12. Decrees of 24 Muharram and 5 Dhi al-Qaʾdah, 1274 A.H., cited in Qawanin ʿAqariyah, table, 13, 14. See Artin, 89–90, 102–3; Mursi, 76, 86–88; Rivlin, 55. 13. See chapter 1 nn. 73–74; Qawanin ʿAqariyah, 8n1; Artin, 87. 14. See art. 25 of the Saʿidiyah; Rivlin, 47, 52, 54–55, 58; Mursi, 77–78. 15. Qawanin ʿAqariyah, 8; Artin, 195–96; Rivlin, 61–64, 67; Khanki, 652. 16. Decree of 27 Shawwal, 1252 A.H. Text in Artin, 333. 17. Decree of 5 Muharram, 1258 A.H. Text in Artin, 334. 18. See M. A. F. Sanhuri, 1:9; Khanki, 657. 19. Decree of 7 Muharram, 1271 A.H. Text in Artin, 156–58. 20. Qawanin ʿAqariyah, 10; Artin, 92–93; Mursi, 76–79; Rivlin, 54–55, 57. 21. Decree of 13 Ramadan, 1271 A.H. Text in Artin, 337. 22. Decree of 18 Muharram, 1271 A.H. Text in Artin, 336. 23. Decree of 2 Shaʾban, 1275 A.H. Cited in Qawanin ʿAqariyah, table, 14. 24. See art. 9 of the Saʿidiyah for conditions imposed in conveyances (firaghs) of kharaji interests. 25. See, e.g., arts. 1, 8, 9, and 10 of the Saʿidiyah. 26. This is also reflected in the use of the term kharaji to designate stateowned lands; this is consistent with traditional usage, although in Hanafi the-

3. The Introduction of a Western Civil Code System  153 ory such lands were originally mulk. On the nature of the kharaj in the early nineteenth century, see Ibn ʿAbidin, 2:51. 27. For the system of courts under Muhammad Ali, see Shihatah, 361–68; U. M. Mustafa, Usul Taʾrikh al-Qanun (Alexandria, 1958), 417–28; F. J. Ziadeh, “Legal Reform in the Ottoman Empire and Egypt” (paper delivered at Princeton University, Conference on Law Reform in the Middle East, 1958), 6–8. 28. Derived from Artin, 325–27. 29. As an example of such administrative regulation, see the Ottoman Law of April 16, 1859, applicable in Egypt, relating to mines and mineral concessions (cited in Qawanin ʿAqariyah, 144). 30. See Rivlin, 31–32; Poliak, Feudalism, 36–37, 75–76. 31. Derived from Artin, 325–27. 32. See Shihatah, 361–62; Mustafa, 426–27. 33. See Y. M. Delavor, Le Wakf et l’utilité économique de son maintien en Egypte (Paris, 1926), 56–57; Jabarti, 8:206–15; M. A. F. Sanhuri, 1:5–6; Heffening (SEI), 628. 34. M. A. F. Sanhuri, 1:8–9; A. Sekaly, “Le problème des wakfs en Egypte,” REI, 1929, 444, 609–10. Cf. A. Hanki (Khanki), Du wakf (Cairo, 1914), 8–10; Delavor, 56–57. 35. M. A. F. Sanhuri, 1:9–11. 36. For the background to the state administration of waqfs, see G. B. de Janssens, “Les wakfs dans l’Islam contemporain,” REI, 1951, 25–27.

3. T he I ntroduction

of a

W estern C ivil C ode S ystem

1. The most important Ottoman Land Law of that period—the reform of 1839, which abolished certain feudatory holdings and established a tax-farm system in their place—was not put into effect in Egypt. It was apparently not intended to apply to Egypt, however, since the reform it effected had, in essence, already been undertaken by Muhammad Ali. For the Ottoman measures, see Goadby and Doukhan, 5–6; Rivlin, 37–38; Grannott, 31–32; Chiha, 13–19. 2. For the Gulhane Edict of November 3, 1839, see Recueil de firmans impériaux ottomans adressés aux Valis et aux Khédives d’Egypte: 1597–1904 (Cairo, 1934), 219–23; for Muhammad Ali’s position, see Firmans, 224–25. 3. Compare texts of firmans dated May 23, 1841 (in Firmans, 233–44), and June 1, 1841 (in H. Lamba, Droit public et administratif de l’Egypte [Cairo, 1909], 622–24), with text of firman dated February 13, 1841 (in Lamba, 611–13). 4. See Lamba, 51; Rivlin, 74. 5. Firman of June 8, 1867, in Firmans, 301–2. 6. Firman of June 8, 1873, in Firmans, 316–19. 7. See Qawanin ʿAqariyah, 13, 144.

154   3. The Introduction of a Western Civil Code System 8. Nubar Pasha, “Rapport à Khédive Ismail sur la réforme judiciaire en Egypt,” Documents Diplomatiques (France) 13 (1869): 82–83; France; Commission internationale pour l’examen des réformes proposées par le Gouvernement égyptien, Rapport (Alexandria, 1870), 102; Mustafa, 425. 9. See P. Arminjon, Etrangers et protégés dans l’Empire ottoman (Paris, 1903), 1:50–63; H. J. Liebesny, “Western Judicial Privileges,” Law in the Middle East, ed. M. Khadduri and H. J. Liebesny (Washington, 1955), 315–27. 10. Lamba, 570–71; France, Commission internationale, 90–91; Great Britain, International Commission upon Consular Jurisdiction at Cairo, “Report,” Parliamentary Session Papers 56 (1870): 3–6. 11. Law of June 10, 1867, Qawanin ʿAqariyah, 13. 12. Lamba, 300–301; Great Britain, International Commission, 6, 10. 13. As an indication of the Egyptian lawyers’ interest in Western legal concepts in this field of the law, it was not until 1866 that the first Arabic translation of the Napoleonic Code was published (Tahtawi, Taʾrif al-Qanun al-Faransawi); furthermore, although jurisdiction over mixed civil cases was vested in an Egyptian Mixed Court in 1861, that court did not apply Western law. See Shihatah, 370–71; France, Commission internationale, 102. 14. Report by Nubar Pasha cited in n. 8. 15. See France, Commission internationale, 90–108; Lamba, 300–305; Great Britain, International Commission, 3–19; Firmans, 316–19; France, Commission instituée a l’effet d’examiner les propositions faites par le Gouvernement égyptien, “Rapport,” Documents Diplomatiques 13 (1869): 84–121. 16. See Lamba, 311, 573–75. For a comprehensive study of the Mixed Courts, see J. Y. Brinton, The Mixed Courts of Egypt (New Haven, 1930). 17. Decree of January 31, 1889, in Codes des Tribunaux mixtes d’Egypte (Cairo, 1917), 498–99. In this connection, it must again be noted that no attempt has been made here to distinguish with any precision the various kinds of laws, decrees, orders, ordinances, regulations, etc., promulgated by the Egyptian government during the nineteenth century. Due to the changing nature of that government and the sometimes inconsistent usages employed in the Arabic and French legal texts, precise distinctions are often difficult to make. For present purposes it may be assumed, unless otherwise indicated (primarily for purposes of convenient comparison), that all such promulgations had equal force of law. In the present case, the “laws” referred to in the text as governing lands, etc., were lawaʾih— roughly, “statutes”—but sometimes translated “ordinances” or “regulations.” 18. Qawanin ʿAqariyah and Législation en matière immobilière, cited above, are the second Arabic and French editions (1901) of the 1892 compilations. It should be noted that there are often material differences between the texts of the Arabic and French editions. 19. See Lamba, 317–31, 569–97; Mustafa, 455–56. 20. See Mustafa, 434; Shihatah, 385; A. Khallaf, “Al-Shariʿah al-Islamiyah: Masdar Salih li-al-Tashriʾ al-Hadith,” MQI 10 (1940): 4.

4. Property Law Under the First Civil Codes  155 21. Mustafa, 427, 448; Shihatah, 362. 22. Law of June 17, 1880, cited in Qawanin ʿAqariyah, 26. See Lamba, 335; Mustafa, 448; Shihatah, 362 (apparent typographical error in the date). 23. Law of May 27, 1897. See Lamba, 332–42. 24. See A. Qamhah and A. Al-Sayyid, Nizam al-Qadaʾ wa-al-Idarah (2d ed.; Cairo, 1923), 254–60. 25. See the section in chapter 4 entitled “Waqf Law in the Civil Courts.” 26. Arts. 10, 14, and 26 of the Law of June 17, 1880. See Lamba, 337–38; Mustafa, 448–49. 27. For citations, see Bibliography: Works on Law in the Modern Era, under Qadri. 28. The earliest publication appears to be one of 1875: Statut personnel et des succession d’après le rite hanefite. The code is also contained in the several editions of Codes égyptiens et lois usuelles en vigeur en Egypte, ed. J. A. Wathelet and R. A. Brunton, 2 vols. (1st ed. 1919–1920; for other editions, see Bibliography: Modern Egyptian Legal Sources), under references to MO 1:36. It is not referred to in any subsequent law on personal status revising or amending prior law. See, e.g., Law 25 of 1920 (p. 1341), Decree-Law 25 of 1929 (p. 1388) and its Explanatory Memorandum (1462–76) in Codes égyptiens, 1939 edition. Also see Lamba, 333ff.; Mustafa, 449; Shihatah, 443; G.-H. Bousquet, Du droit musulman et de son application effective dans le monde (Algiers, 1949), 40; Traité de droit civil égyptien mixte, ed. S. Messina (Cairo, 1927–1934), 4:91; U. ʿAbdullah, Ahkam alShariʿah al-Islamiyah fi al-Ahwal al-Shakhsiyah (2d ed.; Cairo, 1958), 15. 29. See M. A. F. Sanhuri, 1:10–11; Bousquet, 39–40; A. Khallaf, Ahkam al-Waqf (2d ed.; Cairo, 1954), intro., 1–4. On the question of waqf jurisdiction in the Civil Courts and the use of Islamic law in those courts, see chapter 4 nn. 12–13. 30. For the most striking example, see the references to it in the documents on the legislative history of the Civil Code of 1949: Al-Qanun al-Madani: Majmuʾat al-Aʿmal al-Tahdiriyah, 7 vols. (Cairo, 1949), hereinafter cited as Aʿmal Tahdiriyah. 31. See Lamba, 71–82, 356–66; Qamhah and al-Sayyid, 358–64; Mustafa, 451–53. 32. See Halton, 1:xx–xxi; S. Morqos (Murqus) and W. Farag, “Le nouveau Code civil égyptien,” MQI 22 (1952): 249–50; F. M. Goadby, Introduction to the Study of Law (London, 1910), 128, 138–44; A. A. Al-Sanhuri, “ʿAla ayy Asas yakun Tanqih al-Qanun al-Madani al-Misri,” MQI (special issue, 1933), 117–18.

4. P roperty L aw U nder

the

F irst C ivil C odes

1. Arabic lawaʾih, which could better be translated lois rather than reglements (as in the French version of the code) in this context. They clearly include the three major Land Laws of the period.

156   4. Property Law Under the First Civil Codes 2. See Qawanin ʿAqariyah, preface, 5; 3, 9; Codes égyptiens et lois usuelles (1939 ed.), 1257; Khanki, MQI 6 (1936): 662, 667–68; Brunyate, 581–82; Shihatah, 448–49. 3. Decree of April 15, 1891. 4. Qawanin ʿAqariyah, 3, 6; Artin, 109–15; A. F. Zaghlul, Sharh al-Qanun alMadani (Cairo, 1913), 46; Mursi, 91–96. 5. Qawanin ʿAqariyah, 182–83; Brunyate, 582–83; Halton, 2:368; M. Rashad, AlDaribah al-ʿAqariyah fi al-Tashriʾ al-Mali al-Misri (Cairo, 1956), 10–11. 6. See decrees in Qawanin ʿAqariyah, 9–11; and decrees and cases cited in Mursi, 81–82, notes. 7. For the laws governing abʿadiyahs, see Qawanin ʿAqariyah, 7–8, 30–34, 38–40, 41–42. Also see Mursi, 97–111; Halton, 2:357–59; Zaghlul, 69; Gatteschi, 21–30. 8. Halton, 1:29–32; Zaghlul, 49; Lamba, 453–83; Brunyate, 583–84. 9. Qawanin ʿAqariyah, 295–302. Cf. arts. 38–40 of Qadri, Statut réel, trans. A. A. Kahil (Cairo, 1893). See Halton, 1:94–108; M. K. Mursi, Sharh al-Qanun al-Madani al-Jadid (2d ed.; Cairo, 1951–1955), 1, 383–84. 10. Halton, 1:29–30; Lamba, 455–57; S. Gabra, Esquisse de l’histoire économique et politique de la propriété foncière en Egypte (Bordeaux, 1919), 105–6. 11. Lamba, 403–6; Halton, 1:33–35; Earl of Cromer, Modern Egypt (London, 1908), 1:60; 2:313–14. 12. On the law of waqf applicable in the Civil Courts, see Aziz, 1–18; Traité (Messina), 4:91–120; Mursi, Sharh, 2:570–71; D. Palagi, Le louage en droit égyptien mixte (Alexandria, 1936), 30–35; F. M. Goadby, “Moslem Law in the Egyptian Mixed Courts—Wakf,” JCLIL 16 (1934): 40–52. 13. On the question of waqf jurisdiction, see Khallaf, 6–12; Aziz, 4–24; Delavor, 34–36; Qamhah and Sayyid, 256–60; La législation égyptienne annotée, ed. O. Borelli and P. Ruelens (Cairo, 1892), xxi. 14. For these arrangements, see Qadri’s code on waqf: arts. 271–91 (leases), 331–48 (hikr and related arrangements), 360–61 (khulu), 292–324 (muzaraʿah and musaqah), 461–62 (marsad). Also see Mursi, Sharh, 2:570–602, 607–9, 615, 620; Palagi, 30–35; M. A. Al-Abyani, Kitab Mabahith al-Waqf (Cairo, 1923), 107–26. 15. Mursi, Sharh, 2:607–9, containing text of the Law of 1867 in notes. 16. See Qamhah and Sayyid, 410–13; de Janssens, 26–29; Delavor, 84–91. 17. Figures derived from Delavor, 69; Gabra, 107–11; Heffening (SEI), 627; Hanki (Khanki, Du Wakf), 9; Goadby, JCLIL 14:47. 18. See MC §§27, 29, 30, 51, 445; NC §§11, 13, 14, 30, 362; Mursi, Sharh, 1:273– 75; 2:490–95; Halton, 1:36–38; Zaghlul, 52–58. 19. Modern Muslim commentators have little difficulty in presenting the Islamic law rules relating to civil transactions (muʿamalat) in a Western code format and in conformity with the basic legal theories of those codes. For the treatment of the rules on usufruct and lease, see Qadri’s Murshid and A. Khafif, Ahkam al-Muʿamalat al-Shariʿiyah (2d ed.; Cairo, 1944), 97–115. 20. See Qadri, Statut réel, arts. 64–68; A. A. Sanhuri, 119; Halton, 1:104–8.

5. The Development of a National Legal System  157 21. See Qadri, Statut réel, arts. 69–71; Shihatah, 452; Mursi, Sharh, 1:370, 454. 22. Qawanin ʿAqariyah, 295–302; Qadri, Statut réel, arts. 37–56; Halton, 1:94– 108; Lamba, 460–70; M. K. Moursy (Mursi), De l’entendue du droit de propriété en Egypte (Paris, 1914), 212–18; A. A. Sanhuri, 120. 23. See Qadri, Statut réel, arts. 62–63; Halton, 1:113; Moursy (Mursi), Propriété, 227; A. A. Sanhuri, 120. 24. For the application of this principle, see Stagni v. Attia, Bulletin de législation et de jurisprudence égyptiennes 17 (April 6, 1905): 189. Also see Moursy (Mursi), Propriété, 331–33, 420; Mursi, Sharh, 1:370–75; and chapter 1 n. 27. 25. See Qawanin ʿAqariyah, 49–53, 57–87; Lamba, 457–84, 503; Moursy (Mursi), Propriété, 175–209. 26. Qawanin ʿAqariyah, 89–100; Halton, 1:221–24; Lamba, 484–95; Artin, 203– 12; Qadri, Statut réel, arts. 162, 165, 167; Moursy (Mursi), Propriété, 157–60. 27. Zaghlul, 69. 28. See Mursi, Sharh, 3:16–21. 29. A. A. Sanhuri, 120; Halton, 1:193–203. It also appears that, for some time, at least, the Civil Courts employed the Muslim lunar calendar for purposes of measuring the periods of prescription. See Halton, 1:203. 30. For a full discussion, see articles by Aziz and Goadby (JCLIL 16) cited in n. 12. 31. M. Fahmy, De la préemption immobilière en droit égyptien (Paris, 1928), 107; M. K. Mursi, Al-Shufʾah (3d ed.; Cairo, 1947), 64. 32. Mursi, Shufʾah, 229–36; A. Badrawi, Sharh al-Qanun al-Madani fi al-Huquq al-ʾAyniyah al-Asliyah (2d ed.; Cairo, 1956), 428. 33. Fahmy, 9–11. For full discussion, see works on preemption cited in n. 31. 34. See Halton, 2:6–9, 26–28, 44–45, 50–51, 72–74; A. A. Sanhuri, 120–22. 35. A. A. Sanhuri, 123, 139–42; Halton 2:110–19; Shihatah, 466. 36. Halton, 2:108, 127; but cf. Zaghlul, 271–72. 37. See Halton, 2:250–53, 256, 260, 270–72; S. Shihatah, Al-Nazariyah alʾAmmah li-al-Taʾmin al-ʾAyni (3d ed.; Cairo, 1951), 7–11; Shihatah, Taʾrikh, 467–68; Qadri, Statut réel, arts. 975–1025.

5. T he D evelopment

of a

N ational L egal S ystem

1. For a general discussion of these principles, see Liebesny, 308–12; M. Khadduri, War and Peace in the Law of Islam (Baltimore, 1955), 45–46, 147, 162–69. 2. See M. A. F. Sanhuri, 2:939–41; S. A. Husayn, Al-Wajiz fi Sharh Qanunay alMirath wa-al-Waqf (Cairo, 1946), 86–90; Khallaf, Ahkam al-Waqf (1946 ed.), 10–12. Also see chapter 4 n. 13. 3. See Lamba, 103; Qamhah and Sayyid, 382–83; S. Badaoui, Le fait du prince dans les contrats administratifs (Paris, 1955), 19; J. Y. Brinton, “The Council of

158   5. The Development of a National Legal System State in Egypt” (mimeographed report, with supplement; American Embassy, Cairo, 1951–1953), 5–9. 4. See Lamba, 367–76, 454–57; Badaoui, 20–30; Brinton, “Council of State,” 10–12. 5. See T. Shihatah, Mabadiʾ al-Qanun al-Idari (Cairo, 1952), 4–8, 15–19; S. Murqus, Mujaz al-Madkhal li-al-ʿUlum al-Qanuniyah (Cairo, 1953), 26–28, 36–38; Brinton, “Council of State,” 13–23; Badaoui, 30–44. 6. See Lamba, 344–47; Mustafa, 453–55; Shihatah, Taʾrikh, 400–403. 7. See Explanatory Memorandum accompanying Law 462 of 1955, in AlMajmuʾah al-Shamilah fi al-Qawanin al-Ahwal al-Shakhsiyah, ed. M. H. ʾAbd-al-ʾAti (Cairo, 1956), 9. For a general discussion, see G. Sfeir, “The Abolition of Confessional Jurisdiction in Egypt,” MEJ 10 (1956): 248–56. 8. The historical context within which the legal reform of the Shariʿah has occurred, and is occurring, has been extensively treated; see, e.g., works cited in the Bibliography: Works on Law in the Modern Era, under the following authors: Adams, Anderson, Bousquet, Gibb, Habachy, Khadduri, Schacht. 9. For a discussion of these methods, see J. N. D. Anderson’s articles, “The Shariʿa Today,” JCLIL 21 (1949): 20–25; and “The Significance of Islamic Law in the World Today,” AJCL 9 (1960): 190–95. Also see Bousquet, 41–44; and Explanatory Memoranda accompanying the drafts of the Laws on Inheritance and Testamentary Dispositions, in Qawanin al-Ahwal al-Shakhsiyah, ed. M. K. Munib (Cairo, 1951), 145–50. 10. See Sekaly, 77–94, 408–10; Khallaf, Waqf (1954 ed.), 28–29; Gabra, 107–12; Hanki (Khanki, Du Wakf), 9–16; Delavor, 37–84, 93–95. 11. For a complete legislative history, see F. A. M. Sanhuri, 1:11–45. 12. See Explanatory Memoranda accompanying the draft of Law 48 of 1946, in Qawanin Ahwal Shakhsiyah, 161, 168–71, 209, 212. Also see M. A. F. Sanhuri, 1:88–94, 195–204; 2:800–805; J. N. D. Anderson, “Recent Developments in Islamic Law, 9: Waqf,” Muslim World 42 (1952): 261–64. 13. See Explanatory Memoranda in Qawanin Ahwal Shakhsiyah, 184–99. 14. All of these positions are clearly represented in the legislative reports and debates concerning the Civil Code of 1949. See, e.g., Aʿmal Tahdiriyah, 1:5, 13–15, 22–25, 27–28, 48–50, 51–53, 65–66, 82–93, 121–25, 131–32, 155–59. Also see A. A. Sanhuri, 113–16; Khallaf, MQI 9 (1939): 14–15; M. Y. Musa, “Al-Madkhal al-Fiqhi al-ʾAmm ila al-Huquq al-Madaniyah, li Mustafa al-Zirqaʾ” (book review), MQI 13 (1953): 241–43; Morcos (Murqus) and Farag, 262–64; S. Habachy, “Law Reform in the Middle East” (paper delivered at Princeton University, Conference on Law Reform in the Middle East, 1958), 1–2, 10–12. 15. See his article, cited in n. 14, published on the fiftieth anniversary of the Mixed Courts. 16. For a brief outline of the legislative history of the Civil Code, see Aʿmal Tahdiriyah, 1:5–9.

6. Property Law Under the Civil Code of 1949  159 17. See Aʿmal Tahdiriyah, 1:18, 32, 70, 156–57; but cf. Morcos (Murqus) and Farag, 255. 18. Aʿmal Tahdiriyah, 1:70, 97, 156. 19. Aʿmal Tahdiriyah, 1:20–22, 30, 131, 158. 20. See debates in Aʿmal Tahdiriyah, 1:82–93, 158–60.

6. P roperty L aw U nder

the

C ivil C ode

of

1949

1. Aʿmal Tahdiriyah, 1:183–89. 2. See chapter 5 n. 17. 3. See Aʿmal Tahdiriyah, 1:20–21, 181–82, 200–211; 3:136–42. Also see chapter 1 n. 27 and chapter 4 n. 24. 4. Aʿmal Tahdiriyah, cited in n. 1. 5. See Aʿmal Tahdiriyah, 1:13ff.; Morcos (Murqus) and Farag, 256–59; Badrawi, 19–23; ʿArafah, 187–89; Mursi, Sharh, 1:264–67. 6. Aʿmal Tahdiriyah, 1:28–33; see ʿArafah, 240–41; and n. 3. 7. See ʿArafah, 254–55; Mursi, Sharh, 1:383–419; Badrawi, 101–3. 8. Aʿmal Tahdiriyah, 1:55–56; Mursi, Sharh, 1:454–55; ʿArafah, 310; Badrawi, 120–26. 9. See Aʿmal Tahdiriyah, 1:19, 29; 6:9–10; ʿArafah, 473; A. A. Sanhuri, 138; Mursi, Sharh, 2:286; Badrawi, 211–12. 10. See ʿArafah, 208–12; Mursi, Sharh, 1:340–44; Badrawi, 28–31. 11. See ʿArafah, 23–24, 281; Mursi, Sharh, 1:288–91, 418–25. Also see chapter 5 n. 5. 12. For detailed analysis of these laws, see the section entitled “Developments Under the Revolutionary Government.” 13. C. Issawi, Egypt at Mid-Century: An Economic Survey (London, 1954), 134– 35; G. Baer, “Egyptian Attitudes Towards Land Reform,” The Middle East in Transition, ed. W. Z. Laqueur (New York, 1958), 90–94. 14. President Nasser’s speech of December 23, 1961. See The New York Times, December 24, 1961; MEJ 16 (1962): 212; MEA 13 (1962): 63. 15. See Badrawi, 73–74; ʿArafah, 189–92. 16. Aʿmal Tahdiriyah, 6:197, 199; cf. Mursi, Sharh, 3:61. 17. Mashruʾ Tanqih al-Qanun al-Madani (Cairo, 1940), §517. See Aʿmal Tahdiriyah, 3:322–25; 4:498. 18. See Aʿmal Tahdiriyah, 6:343–44, 373–82. 19. See Law 114 of 1946 and accompanying Explanatory Memorandum, in Al-Majmuʾah al-Madaniyah al-Misriyah, ed. M. K. Mursi (Cairo, 1948), 2:3–63, for legislative history of the recording laws. For earlier Egyptian recording laws, see Seif, 81–95, 223–43. 20. Aʿmal Tahdiriyah, 1:22; 4:241; Murqus, 178.

160   6. Property Law Under the Civil Code of 1949 21. Aʿmal Tahdiriyah, 4:664–66, 681–82. 22. Aʿmal Tahdiriyah, 1:22; 4:617–18. 23. Aʿmal Tahdiriyah, 4:627–29. 24. Aʿmal Tahdiriyah, 4:646–47. 25. Aʿmal Tahdiriyah, 7:246–48. 26. See ʿArafah, 149–56; Aʿmal Tahdiriyah, 1:374, 480. 27. See n. 16. 28. They may well be developed, however, in other countries of the Near East; for example, Lebanon adopted a waqf law based on the Egyptian waqf Law of 1946. 29. It does not appear that there was any significant opposition to this measure by the religious authorities, who apparently felt that limiting waqfs to those having only charitable purposes was consistent with the original Islamic concept of that institution. See de Janssens, REI, 1953, 54. 30. Derived from de Janssens, REI, 1953, 53–54. 31. See The New York Times, March 25, 1962. Also see references in President Nasser’s speech of October 16, 1961, in EEPR 7 (December 1961–January 1962): 26. 32. Derived from H. Seoud, General Aspects of Land Reform in Egypt (Cairo, 1956), 4. 33. M. ʿArafah, Sharh Qanun al-Islah al-Ziraʾi (2d ed.; Cairo, 1954), 190–91, 196–98, 205–11. 34. See n. 13. On the other hand, the program of Agrarian Reform was regarded as being at the core of the program of Arab socialism. See references to speech of June 19, 1961, by Minister of Economy Qaysuni in MEE 15 (1961): 85. 35. See BPSR 32 (1961): 38; NBEB 14 (1961): 322–35; CBER 1 (1961): 285–86. 36. The Provisional Constitution of 1958, which was to apply to the United Arab Republic as it was then constituted (including Syria), made no reference to Islam as the state religion. 37. See President Nasser’s speech of July 22, 1961, in EEPR 7 (September 1961): 26–27; and in Al-Mawsuʾah al-Iqtisadiyah: Majmuʾat al-Qawanin al-Ishtirakiyah (Cairo, 1961), 1–19. 38. On the policy relating to foreign landholdings, see n. 14; on the confiscatory measures, first undertaken in October 1961, see MEE 15 (1961): 155; MEJ 16 (1962): 84–85, 213; MEA 13 (1962): 31–32, 63; The New York Times, November 11, 1961. In general, the program of Arab socialism, as of May 1962, resulted in the nationalization of approximately 80 percent of Egyptian business and industry; see MEE 16 (1962): 19, 52, 83; The New York Times, May 21, 1962.

A ppendix : T ransliterations of A rabic and T urkish T erms

This list gives accurate transliterations of all Arabic and Turkish terms appearing in the text and notes, and the Bibliography does the same for names and titles. In the system of transliteration employed here, the symbol ʿ represents the letter ʿayn; the symbol ʾ represents the hamza. abʿādīyah ʿādī al-arḍ ʿanwah arḍ al-waṣīyah ʿārīyah awlawīyah çiftlik faddān fāʾiḍ fatwā firāgh firmān ghārūqah ghaṣb ḥaqq al-rujḥān ḥikr ijāratayn

iqṭāʿ iqṭāʿ istighlāl iqṭāʿ tamlīk irṣād ishhād isqāṭ istighlāl istiʿmāl jadak jiflik kadak kānūn (qānūn) khalīṭ kharāj kharājī khulū khulū al-intifāʿ

kirdār lawāʾiḥ maḥākim ahlīyah maḥkamah majālis ḥisbīyah majallah majlis mamlakah manfaʿah marṣad masmūḥ masmūḥ al-maṣāṭib masmūḥ al-mashāyikh mawāt milkīyah millah mīrī

162   Appendix muʿāmalāt mubāḥ mulk mulk tāmm muqābalah musāqāh mutawallī muzāraʿah nāẓir nuzūl

raqabah rizqah rizqah aḥbāsīyah rizqah jayshīyah ṣafī ṣawāfī sharīʿah maḥallīyah suknā ṣulḥ taṣarruf

ʿuhdah ʿushr ʿushrī ūsiyah ūsya waqf waqf ghayr ṣaḥīḥ waqf ṣaḥīḥ

B ibliography

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P eriodicals AJCL American Journal of Comparative Law BIE Bulletin de l’Institut égyptien BPSR Banque de Port Said: Revue economique (prior to 1961: Banque Belge et internationale en Egypte) BSOAS Bulletin of the School of Oriental and African Studies CBER Central Bank of Egypt: Economic Review EC L’Egypte contemporaine EEPR Egyptian Economic and Political Review JCLIL Journal of Comparative Legislation and International Law MEA Middle Eastern Affairs MEE Middle East Economist and Financial Service MEJ Middle East Journal MQI Majallat al-Qānūn wa-al-Iqtiṣād NBEB National Bank of Egypt: Economic Bulletin REI Revue des études islamiques

I ndex

abʿadiyah (tax-exempt holding): in Civil Code of 1875, 73, 76–77; in Civil Code of 1949, 117, 129; in modern-era Islamic law, 40, 46– 48, 52–53; vivification and, 40, 46–47, 52 abandonment, 43, 46, 52, 152 Abu Hanifah, 110, 147 abuse of rights, 89, 118–19, 123–24, 148 abusus (disposition), 86 accession, 91, 128 acquisition, 20–25 acquisitive prescription: in Civil Code of 1875, 67, 74, 77, 81, 92–93, 157; in Civil Code of 1949, 119, 129–30, 137; in classical Islamic law, 24, 67 actor sequitur forum rei, 59–60, 64 ʿadi al-ard, 146 administrative courts, 102–4 administrative servitudes, 124–25 adverse possession, 21, 24, 41, 74, 92–93

Agrarian Reform Law of 1952, 125–26, 132, 138–41, 143, 160 agricultural land: foreign ownership of, 126, 129; redistribution of, 39, 44; restrictions on, 125–26; stateowned, 36, 38, 52–53; as waqf, 54, 83, 139 alienation, 27–28, 45, 47 alluvium, 23 almsgiving, 9, 17 ʿanwah lands, 146 appropriation, 76, 91–92, 128–29, 136–37 Arabian Peninsula, 9 Arab socialism, 125, 142–43, 160 arbitration, 25 ard al-wasiyah, 151 ʿariyah, 21, 96, 133, 148 autonomy, of non-Muslims, 69 awlawiyah (right of preference), 32, 43 bare ownership, 13, 86, 94, 120 bedouin tribes, 46

182   Index biens libres (free property), 76 cadasters, 39–40, 44, 46, 151 calendars in legal use, 130, 157 canals, 15, 19 Capitulations (international agreements), 56, 59–61 Capitulatory powers: legal reform and, 98–100, 113; Mixed Courts and, 61–62, 66, 70–71, 78, 80 CC. See Civil Code of 1949 charitable beneficiaries, 26–27 charitable waqfs: foreign ownership of, 62, 67; land reform and, 138– 39; legal status of, 17, 54–55, 85 chiftlik (farm), 46 Civil Code of 1875 (Egypt), 53, 72–97, 155–57; abʿadiyah in, 73, 76–77; acquisitive prescription in, 67, 74, 77, 81, 92–93, 157; Code Napoléon and, 38, 57, 69–70, 76; Common Law and, 10, 16, 24–25; contracts in, 90–91, 94–97; gharuqah in, 75, 97; hikr in, 83, 85, 115; inheritance law in, 90; kharaji lands in, 73–77, 79, 81, 86, 90, 92, 97; leases in, 83–85, 87–90, 95–96; Mahkamahs and, 80, 82, 85, 92–93; mawat lands in, 73, 76–77, 79, 91; mortgages in, 83, 86, 96–97; mulk lands in, 75–76, 79, 81, 84–87; Muqabalah tax and, 63, 74–75, 89; ownership rights in, 86–97; personalty in, 76, 97; pledges in, 75, 96–97; preemption in, 93–94, 108, 113; private domain in, 73, 77–81, 103; private property in, 75–76, 79, 81, 85–97; public domain in, 77–79, 89; raqabah in, 86; servitudes in, 78, 86–89, 94, 103–4; Shariʿah and, 80, 82, 85, 90, 93–94; state-owned land in, 73–80; testamentary

dispositions in, 90; usiyah and, 75–76, 79; usufructuary interest in, 70, 73–74, 77, 79, 81, 86–87, 90, 94–96, 156; waqf lands in, 80–86, 90, 92–93, 96, 101; water rights in, 78, 88–89, 103 Civil Code of 1949 (CC) (Egypt), xix, 3–4, 116–44, 159–60; abʿadiyah in, 117, 129; acquisitive prescription in, 119, 129–30, 137; Code Napoléon and, 122; contracts in, 120, 122, 127, 131–35, 140; format of, 118–20; gharuqah in, 135; hikr in, 120–22, 131–32, 137; inheritance law in, 127; kharaji lands in, 117, 119, 121, 135–36; leases in, 120, 126, 134–35, 137, 141, 143; Mahkamahs and, 117, 128, 135, 137; mawat in, 117, 126, 129, 136; mortgages in, 120, 135–36; mulk lands in, 120–36; National Courts and, 128, 137, 144; ownership rights in, 122–36; personalty in, 135; pledges in, 120, 135–36; preemption in, 130–32; private domain in, 136; private property in, 120–36; property rights in, 142–43; servitudes in, 120–22, 124–25, 137; Shariʿah and, 117–19, 121–24, 127–28, 130–31, 133–34, 137, 139, 143–44; state-owned land in, 136–39; testamentary dispositions in, 127–28, 133; usiyah in, 117; usufructuary interest in, 120–21, 132, 137; waqf lands in, 117–19, 121–22, 127, 129–30, 134–40, 142, 160; water rights in, 123, 125 civil codes: of France, 70, 72, 78, 91, 96; land tenure and, 72, 117; Western, 2–4, 56–71, 98, 144, 153–55. See also Civil Code of 1875

Index  183 (Egypt); Civil Code of 1949 (CC) (Egypt) Civil Law, 4, 6, 57–58, 62, 64; legal reform and, 111–15 civil rights, 57 classical Islamic law. See Islamic law, classical classification of lands, 8–17 Code Napoléon, 154; Civil Code of 1875 and, 38, 57, 69–70, 76; Civil Code of 1949 and, 122 Code of Commerce, of France, 59, 61 commercial law, 3, 37, 62, 64; foreigners and, 59, 62; of France, 59, 61 Commission de la Daira Sanieh, 79 Commission des Domaines de l’Etat, 79 Common Law: Civil Codes of 1875 and, 10, 16, 24–25; Shariʿah as, 53; spendthrift trusts in, 28; trusts in, 137–38 commons, 15 compensatory payments: for expropriation, 43, 47, 50–51, 74, 81, 125; faʾid and, 36, 45, 48, 76; ghasb and, 24 concessions, 13, 30–31; masmuh land and, 44; rizqah land and, 36; taxfarming and, 33, 35. See also iqtaʿ confiscation, 29, 33–34 Conseil d’Etat, 103 constitutional law, 6, 142–43 Consular Courts, 59–61, 63–64, 67, 90, 99–106 contracts: in Civil Code of 1875, 90–91, 94–97; in Civil Code of 1949, 120, 122, 127, 131–35, 140; in classical Islamic law, 18, 20–24, 27, 31, 68; in Native Civil Code of 1883, 68 conversion, to Islam, 9

co-owners, 24 corvée labor, 44 courts: administrative, 102–4; Consular Courts, 59–61, 63–64, 67, 90, 99–106; of Kanun law, 64; Majlis Courts, 64; Millah Courts, 64–65, 67, 69, 99, 102, 104–6, 112; Mixed Courts, 2, 59–71, 78, 80, 100–106; National Courts, 59–61, 99, 102–6, 111, 114, 128, 137, 144; Native Courts, 64–67, 100; of personal status, 101–6. See also Mahkamahs creditors’ rights, 22, 70 dead lands, 8 Decrees of 1891 (Egypt), 76 disposition, of property, 20–25 divorce law, 106–7 drains, 15 easements, 20 Eastern Catholic Church, 69 eclectic selection, 108, 110, 123, 131 Egypt: foreign influences in, 56–57; Islam as state religion of, 143; legal system of, xv, 2–4, 37, 56–57, 98–115; Military Movement of, 140; occupation of, by France, 37; revolutionary government of, 105, 118, 138, 140–44. See also Civil Code of 1875; Civil Code of 1949; Mixed Civil Code of 1875; Mixed Court system; National Courts; Native Civil Code of 1883 escheat, right of, 29, 33–34, 43, 46, 52 expropriation: compensation for, 43, 47, 50–51, 74, 81, 125; for public utility, 29, 34, 74, 89, 125; of waqf land, 81 faʾid (pension), 36, 45, 48, 76

184   Index family waqfs: abolition of, 118, 139– 40, 142; legal status of, 17, 27, 55, 85, 110 fatwa, 148 fee simple, 10, 13 female heirs, 41–42 Fertile Crescent, 9 feudal system, in classical Islamic law, 13, 34 fiefs, military, 35–36 finance, Islamic, xvi firagh (right to transfer), 31, 42, 46–47, 50, 152 firewood lots, 15 firmans (decrees), 57–58, 69, 153–54 first civil codes. See Civil Code of 1875 foreigners: commercial law and, 59, 62; jurisdictions and, 99–105; personal status of, 64, 66, 90. See also Mixed Civil Code of 1875 (MC); Mixed Court system foreign ownership: of agricultural land, 126, 129; of charitable waqfs, 62, 67; of private property, 58, 60, 62, 67, 80, 126, 160 forfeiture, 33–34, 52 France: Civil Code of, 70, 72, 78, 91, 96; Code of Commerce of, 59, 61; legal system of, 10, 24, 59, 61; mortgage law in, 70; occupation of Egypt by, 37 fraud, 95 free property, 76 gharuqah (debt security): in Civil Code of 1875, 75, 97; in Civil Code of 1949, 135; in modern-era Islamic law, 41–42, 50, 152 ghasb (trespass), 23–24, 91 gifts, 65, 90–91, 127, 133 grants, 14, 16–17, 25–26 Gregorian calendar, 130

Gulhane Edict of 1839, 57, 69, 153 Hanafi school of law, 5, 11–12; mawat and, 14; mulk lands and, 33, 146; personal status and, 108; preemption and, 24–25, 93; waqf law and, 28, 67, 82 haqq al-rujhan (right of preference), 32 Hatt-i-Humayun (edict), 69 hidden treasure, 92 Higher Committee for Agrarian Reform, 141 hikr (long-term lease): in Civil Code of 1875, 83, 85, 115; in Civil Code of 1949, 120–22, 131–32, 137; in classical Islamic law, 28 hypothec, 86, 97, 135 ijaratayn (long-term lease), 28, 84, 121, 137 immobilization, of property, 11–12, 17, 20, 22 immovables, 94 Imperial Edict of 1839 (Ottoman), 57 inalienability, 11, 17, 26, 83, 119 inheritance law: in Civil Code of 1875, 90; in Civil Code of 1949, 127; classical Islamic law and, 22–23, 31, 48; kharaji lands and, 74; Mixed Court system and, 62, 65; in modern-era Islamic law, 41; personal status and, 90; succession and, 3, 20, 22–23, 29, 31 inspection, option of, 95 intestate succession, 29, 69 iqtaʿ (concessions), 13; iqtaʿ istighlal (concessions for exploitation only), 13, 31, 148; iqtaʿ tamlik (concessions with full ownership), 13 irrevocability, 17

Index  185 irrigation rights, 14–15, 19, 78, 88, 103, 125 irsad (mortmain), 29 ishhad (right to transfer), 31 Islam: conversion to, 9; modern reform movement in, 112; as state religion of Egypt, 143 Islamic law, classical, 7–36, 145–51; acquisitive prescription in, 24, 67; contracts in, 18, 20–24, 27, 31, 68; feudal system of, 13, 34; finance in, xvi; hikr in, 28; inheritance law in, 22–23, 31, 48; Kanun law and, 30, 49–50; kharaji lands in, 8, 10–13, 16–18, 36, 150; land tenure in, 4, 7–8, 12–13, 15, 17–36; leases in, 12, 20; mawat lands in, 8, 14–15, 18, 20–21, 24, 30, 147, 150; mortgages in, 36; mulk lands in, 10–11, 17–25; ownership rights in, 18–20, 22; perceptions of, xv; personalty in, 8, 10, 16, 18, 22, 24, 148; pledges in, 10, 20, 22; preemption in, 21, 24–25, 32, 115; private domain in, 13, 15, 18, 30, 32–35; property rights in, 17–36; raqabah in, 13, 21, 25, 27, 149; rizqah in, 35–36; servitudes in, 15–16, 20, 27, 32; Shariʿah and, 7, 18, 20, 22–25, 27–35; state-owned land, 7–8, 13, 30–36; testamentary dispositions in, 22–23, 29, 31; theory and practice of, 5; ʿushri lands in, 8–11, 13, 16, 18, 36; usiyah in, 36; usufructuary interest, 12, 21–22, 25, 27, 32–33; waqf lands in, 7, 9–12, 16–23, 25–29, 147–50, 160; water rights in, 15, 19, 27. See also Islamic law, modern-era Islamic law, modern-era, 37–55, 151–53; abʿadiyah in, 40, 46–48, 52–53; gharuqah in, 41–42, 50, 152;

inheritance law in, 41; kharaji lands in, 49–52, 152–53; land tenure in, 34–36, 49–55, 57; leases in, 42; Mahkamahs in, 66–69; mulk lands in, 52–53; Muqabalah tax and, 44, 47–49, 51, 53, 152; personalty in, 151; pledges in, 41–42, 50; preemption in, 43; private domain in, 52; property rights in, 37–55, 70; raqabah in, 45; rizqah in, 38, 40, 45–46, 51; servitudes in, 52, 70; Shariʿah and, 49–50; state-owned land in, 49–52; testamentary dispositions in, 62, 65; ʿushri lands in, 51; usiyah in, 38–39, 47–49, 53; usufructuary interest in, 42; waqf lands in, 51, 53–55, 67–68, 80–86, 90, 92–93, 96, 153; water rights, 43. See also Islamic law, classical Islamic lunar calendar, 130, 157 Ismail (Khedive of Egypt), 60, 79, 84, 154 isqat (right to transfer), 42 istiʿmal (use), 86 jadak, 83 jifliks (farms), 46–47, 52 joint ownership, 24, 124 judges, of Shariʿah, 25–26 jurisdictions: foreigners and, 99–105; of Mahkamahs, 51–52, 55, 60, 65, 69, 99, 102, 104–7, 111; of Millah Courts, 99, 102, 104–5, 112; of Native Civil Code, 66; religious, 64–65, 69; taxes and, 65; unity of, 99–106 kadak, 83 Kanun law, 6, 40; classical Islamic law and, 30, 49–50; courts of, 64; kharaji lands and, 32–34, 42; in

186   Index Ottoman empire, 30; preemption and, 32; Shariʿah and, 30, 50; waqf lands and, 31, 35 khalit (co-owner), 24, 94 kharaj (tax), 8, 10, 12, 33 kharaji lands: in Civil Code of 1875, 73–77, 79, 81, 86, 90, 92, 97; in Civil Code of 1949, 117, 119, 121, 135–36; in classical Islamic law, 8, 10–13, 16–18, 36, 150; inheritance and, 74; Kanun law and, 32–34, 42; in Land Law of 1858 (Egypt), 42–43, 45, 73–74, 92, 97; leases of, 42; Maliki school and, 30, 32; in modern-era Islamic law, 49–52, 152–53; Muhammad Ali and, 40–44; Native Civil Code and, 75, 97; Shafiʿi school and, 30, 32 Khedive. See Ismail (Khedive of Egypt) khulu (long-term lease), 28, 83, 137; khulu al-intifaʿ, 121 kirdar, 83 land: Shariʿah classifications of, 8–17; vivification of, 8, 14, 24, 30, 40, 46–47, 52. See also land reform; land tenure systems Land Law of 1846 (Egypt), 38, 41 Land Law of 1854 (Egypt), 41 Land Law of 1858 (“Saʿidiyah”) (Egypt), 40, 58, 89; accession and, 128; kharaji land and, 42–43, 45, 73–74, 92, 97; waqf land and, 54, 109 Land Law of 1858 (Ottoman), 58 Land Law of 1883 (Egypt), 66 land reform, 138–39, 142–43. See also Agrarian Reform Law of 1952 land tenure systems: civil codes and, 72, 117; in classical Islamic law, 4, 7–8, 12–13, 15, 17–36; in modern-

era Islamic law, 34–36, 49–55, 57; Ottoman, 5, 34–35, 57, 84, 153; in Shariʿah, 17–29 lawaʾih, 154–55 Law of the Muqabalah of 1871 (Egypt), 44, 47–49, 51, 53, 152 Law on Embankments and Canals of 1894 (Egypt), 78, 88, 123–24 Law on Mines of 1869 (Ottoman), 58 Law on Testamentary Dispositions, 20, 108, 110 Law on the organization of the Mixed Courts of 1875 (MO), xix, 49, 62–64, 68 Law on the organization of the Native Courts of 1883 (NO), xix law reform. See legal reform leases: in Civil Code of 1875, 83–85, 87–90, 95–96; in Civil Code of 1949, 120, 126, 134–35, 137, 141, 143; in classical Islamic law, 12, 20; of kharaji land, 42; lease-back, 22, 26; long-term, 28; in modern-era Islamic law, 42; of tax-farming interests, 36. See also hikr; khulu legal development, xvi, 1; compromise position in, 2–3, 131; by revolutionary government, of Egypt, 142–44. See also legal reform legal reform, 106–15, 157–59; Capitulatory powers and, 98–100, 113; Civil Law and, 111–15; of Shariʿah, 104–9, 111–15, 158; succession and, 110–12; waqf lands and, 109–11 legal systems: Egyptian, xv, 2–4, 37, 56–57, 98–115; in France, 10, 24, 59, 61; Ottoman, 56; Turkish, 2; Western, xv–xvi, 1, 11, 56–71, 116–17 life estates, 39, 45, 149

Index  187 life interests, 26 loans, 96, 133 long-term leases, 28. See also hikr; khulu lunar calendar, 130, 157 Mahakim Ahliyah. See Native Courts Mahkamahs (Shariʿah courts): in Civil Code of 1875, 80, 82, 85, 92–93; in Civil Code of 1949, 117, 128, 135, 137; jurisdiction of, 51–52, 55, 60, 65, 69, 99, 102, 104–7, 111; in modern-era Islamic law, 66–69 Majalis Hisbiyah, 104 Majallah (civil code), 58, 122, 133 Majlis Courts, 64 male heirs, 41–42 Maliki school of law, 5, 11–12; kharaji lands and, 30, 32; preemption in, 93; waqf lands and, 29, 110, 147, 149–50 mamlakah (state lands), 36 Mamluks, 5, 31, 34–35, 39 manfaʿah (benefit), 21, 32, 42, 48, 86 marketplaces, 16 marriage law, 3, 65, 106–7 marsad (security), 84, 156 masmuh (tax-exempt holdings), 39, 51; concessions and, 44; masmuh al-masatib, 44; masmuh almashayikh, 44 mawat (dead lands): in Civil Code of 1875, 73, 76–77, 79, 91; in Civil Code of 1949, 117, 126, 129, 136; in classical Islamic law, 8, 14–15, 18, 20–21, 24, 30, 147, 150; Hanafi school and, 14; vivification of, 8, 14, 24, 30 MC. See Mixed Civil Code of 1875 military fiefs, 35 Military Movement, Egyptian, 140 milkiyah (full ownership), 10–11

Millah Courts: abolition of, 106; jurisdiction of, 99, 102, 104–5, 112; personal status and, 64–65, 67, 69 mineral resources, 16, 44, 89, 125, 153 mining law, 58 Ministry of Waqfs, 84, 139 miri lands, 36 Mixed Civil Code of 1875 (MC) (Egypt), xix, 49, 64, 73–75, 78–80, 89 Mixed Court system (Egypt), 2, 59–69, 100–106; Capitulatory powers and, 61–62, 66, 70–71, 78, 80; inheritance law in, 62, 65 MO. See Law on the organization of the Mixed Courts of 1875 modern-era Islamic law. See Islamic law, modern-era modernization, xvi modern reform movement, in Islam, 112 mortgages: in Civil Code of 1875, 83, 86, 96–97; in Civil Code of 1949, 120, 135–36; in civil code of France, 70; in classical Islamic law, 36 mortmain, 7, 9, 81. See also irsad; waqf lands muʿamalat (civil transactions), 156 mubah (free property), 76–77, 91, 119 Muhammad (prophet), 15, 19, 146 Muhammad Ali (Wali of Egypt), 37–57, 60, 64, 126, 153 mulk lands (private property): in Civil Code of 1875, 75–76, 79, 81, 84–87; in Civil Code of 1949, 120–36; in classical Islamic law, 10–11, 17–25; Hanafi school and, 33, 146; in modern-era Islamic law, 52–53; mulk tamm (full ownership), 21, 86; Muqabalah tax and, 49

188   Index Muqabalah tax: in Civil Code of 1875, 63, 74–75, 89; in modern-era Islamic law, 44, 47–49, 51, 53, 152; mulk lands and, 49 musaqah (sharecropping), 84 mutawalli (administrator), 25 muzaraʿah (sharecropping), 22, 84 Napoleonic Code. See Code Napoléon Nasser, Gamal Abdel, 126, 143 National Courts (Egypt): in Civil Code of 1949, 128, 137, 144; development of, 59–61, 99, 102–6, 111, 114. See also Mixed Court system; Native Courts national legal system, of Egypt, xv, 2–4, 37, 56, 98–115 Native Civil Code of 1883 (NC) (Egypt), xix; background of, 70– 71; contracts in, 68; jurisdiction of, 66; kharaji lands and, 75, 97; public domain in, 78–79; waqf land and, 84 Native Code of Criminal Procedure, 113 Native Courts, 64–67, 100 Native Penal Code, 113 nazir (trustee), 25, 101, 110 NC. See Native Civil Code of 1883 Nile River, 43, 128 NO. See Law on the organization of the Native Courts of 1883 non-Muslims: autonomy of, 69; personal status of, 66–67, 99; property rights of, 11 nonuser, 74, 77, 122, 129 Nubar (Pasha), 60–62, 69, 154 nue propriété, 86 nuzul (right to transfer), 31, 42, 50 oppressive taxes, 41 option of inspection, 95

Orthodox Church, 69 Ottoman empire: firagh and, 31, 42, 46–47, 50, 152; Kanun law of, 30; land tenure system of, 5, 34–35, 57, 84, 153; legal system of, 56; Porte of, 56–58, 60–61, 69, 100; sovereignty of, 56–60 ownership rights: bare ownership, 13, 86, 94, 120; in Civil Code of 1875, 86–97; in Civil Code of 1949, 122–36; in classical Islamic law, 18–20, 22; iqtaʿ tamlik, 13; joint, 24, 124; milkiyah, 10–11; mulk tamm, 21, 86; restrictions on, 18–20, 24–25, 27–28, 30. See also foreign ownership partnerships, 22 pastureland, 15 patrimonies, 28 perpetuity, 17 personal status, 3, 64–70, 80; courts of, 101–6; of foreigners, 64, 66, 90; in Hanafi school, 108; inheritance law and, 90; Millah Courts and, 64–65, 67, 69; of non-Muslims, 66–67, 99; in Shariʿah, 107–8 personalty: in Civil Code of 1875, 76, 97; in Civil Code of 1949, 135; in classical Islamic law, 8, 10, 16, 18, 22, 24, 148; in modern-era Islamic law, 151 pledges: in Civil Code of 1875, 75, 96–97; in Civil Code of 1949, 120, 135–36; in classical Islamic law, 10, 20, 22; in modern-era Islamic law, 41–42, 50 plenum dominium, 10 Porte. See Ottoman empire possession, adverse, 21, 24, 41, 74, 92–93 possessory rights, 22–24

Index  189 preemption: in Civil Code of 1875, 93–94, 108, 113; in Civil Code of 1949, 130–32; in classical Islamic law, 21, 24–25, 32, 115; Hanafi school and, 24–25, 93; Kanun law and, 32; Maliki school and, 93; in modern-era Islamic law, 43 preference, right of, 32, 43 prescription. See acquisitive prescription primogeniture, 31 private domain: in Civil Code of 1875, 73, 77–81, 103; in Civil Code of 1949, 136; in classical Islamic law, 13, 15, 18, 30, 32–35; in modernera Islamic law, 52 private property: in Civil Code of 1875, 75–76, 79, 81, 85–97; in Civil Code of 1949, 120–36; foreign ownership of, 58, 60, 62, 67, 80, 126, 160. See also mulk lands private servitudes, 20, 87–88 property rights: in Civil Code of 1949, 142–43; in classical Islamic law, 17–36; in modern-era Islamic law, 37–55, 70; of non-Muslims, 11; public, 8, 15–16 propriété, 10, 86 Protestant community, 69 public domain: in Civil Code of 1875, 77–79, 89; in Native Civil Code of 1883, 78–79 public health, 16 public property rights, 8, 15–16 public utility, 29, 52, 74; expropriation for, 29, 34, 74, 89, 125 Qadri, Muhammad, 67–68, 82–84, 122, 133 rabbinates, 69

raqabah (title): in Civil Code of 1875, 86; in classical Islamic law, 13, 21, 25, 27, 149; in modern-era Islamic law, 45 realty, 8, 10, 18 redemption, 22 redistribution, of agricultural land, 39, 44 religious jurisdictions, 64–65, 69 rent payment, 10, 12, 26, 141 repossession, 24 restrictions: on agricultural land, 125–26; on ownership rights, 18–20, 24–25, 27–28, 30 revolutionary government, of Egypt, 105, 118, 138, 140–44 rights-of-way, 20, 89 rizqah (property interest): in classical Islamic law, 35–36; concessions and, 36; in modern-era Islamic law, 38, 40, 45–46, 51; rizqah ahbasiyah, 35; rizqah jayshiyah, 35; waqf land and, 54 Roman law, 10, 21, 86, 148 safi lands, 146 Saʿidiyah. See Land Law of 1858 (Egypt) al-Sanhuri, ʿAbd-al-Razzaq Ahmad, 113–14, 118 Sawafi lands, 146–47 servitudes: administrative, 124–25; in Civil Code of 1875, 78, 86–89, 94, 103–4; in Civil Code of 1949, 120–22, 124–25, 137; in classical Islamic law, 15–16, 20, 27, 32; in modern-era Islamic law, 52, 70; private, 20, 87–88 Shafiʿi school of law, 5, 11–12; kharaji lands and, 30, 32; Sawafi lands and, 147; sulh lands and, 146 sharecropping, 22, 44, 84, 95, 134

190   Index Shariʿah: Civil Code of 1875 and, 80, 82, 85, 90, 93–94; Civil Code of 1949 and, 117–19, 121–24, 127–28, 130–31, 133–34, 137, 139, 143–44; classical Islamic law and, 7, 18, 20, 22–25, 27–35; classification of lands in, 8–17; as common law, 53; constitutional law and, 6; judges of, 25–26; Kanun law and, 30, 50; land tenure systems in, 17–29; legal reform and, 104–9, 111–15, 158; modern-era Islamic law and, 49–50; Muhammad Ali and, 54; personal status in, 107–8; shariʿah mahalliyah, 74, 90; state-owned land in, 30–34; waqf lands and, 82–84, 108. See also Islamic law, classical; Mahkamahs slaves, 46 spendthrift trusts, 28 spoils of war, 9 state administration, of waqf lands, 84–85 state-owned land: agricultural, 36, 38, 52–53; in Civil Code of 1875, 73–80; in Civil Code of 1949, 136– 39; in classical Islamic law, 7–8, 13, 30–36; mamlakah as, 36; in modern-era Islamic law, 49–52; in Shariʿah, 30–34 statute of limitations, 41–42 subrogation, 24 succession: inheritance and, 3, 20, 22–23, 29, 31; intestate, 29, 69; legal reform and, 110–12 sukna, 83 sulh, 146 Tanzim Service, 103 tasarruf (disposition), 86 taxes, 8–10; jurisdiction and, 65; oppressive, 41; tax-farming, 33–

36, 38–39, 47–48, 151, 153. See also individual taxes tax-exempt holdings, 38–40, 45–47, 77. See also abʿadiyah; masmuh testamentary dispositions: in Civil Code of 1875, 90; in Civil Code of 1949, 127–28, 133; in classical Islamic law, 22–23, 29, 31; Law on, 20, 108, 110; in modern-era Islamic law, 62, 65 threshing ground, 15 tithes, 9 title. See raqabah transfer, of property, 20–21, 90–97, 126–35 treasure, hidden, 92 treaties, 11, 56–57, 63 Treaty of Montreux, 100–105, 113 trespass, 23–24 Tribunals of the Reform. See Mixed Court system Tribunaux Indigènes. See Native Courts tribute, 10 trusts: in common law, 137–38; instruments of, 16–17; spend­ thrift, 28. See also waqf lands Turkey, legal system in, 2 ʿuhdah, 151 unity of jurisdictions, 99–106 ʿushr (tax), 8, 48 ʿushri lands: in classical Islamic law, 8–11, 13, 16, 18, 36; in modern-era Islamic law, 51 usiyah (land grant): in Civil Code of 1875, 75–76, 79; in Civil Code of 1949, 117; in classical Islamic law, 36; in modern-era Islamic law, 38–39, 47–49, 53 usufructuary interest: in Civil Code of 1875, 70, 73–74, 77, 79, 81, 86– 87, 90, 94–96, 156; in Civil Code of

Index  191 1949, 120–21, 132, 137; in classical Islamic law, 12, 21–22, 25, 27, 32– 33; in modern-era Islamic law, 42 usus, 86 usya, 151 vested rights, 89 vivification, of land: abʿadiyah and, 40, 46–47, 52; mawat and, 8, 14, 24, 30 waqf lands (mortmain): agricultural, 54, 83, 139; charitable, 17, 54–55, 62, 67, 85, 138–39; in Civil Code of 1875, 80–86, 90, 92–93, 96, 101; in Civil Code of 1949, 117–19, 121–22, 127, 129–30, 134–40, 142, 160; in classical Islamic law, 7, 9–12, 16–23, 25–29, 147–50, 160; expropriation of, 81; family waqfs, 17, 27, 55, 85, 110, 118, 139–40, 142; Hanafi school and, 28, 67, 82; in Kanun law, 31, 35; in Land Law of 1858, 54, 109; legal reform and, 109–11; Maliki school and,

29, 110, 147, 149–50; manfaʿah and, 48; Ministry of Waqfs, 84, 139; in modern-era Islamic law, 51, 53–55, 67–68, 80–86, 90, 92–93, 96, 153; Native Civil Code and, 84; rizqah and, 54; in Shariʿah, 82–84, 108; state administration of, 84–85; waqf ghayr sahih (false waqf), 31, 54; waqf sahih (true waqf), 31 war, spoils of, 9 water rights: in Civil Code of 1875, 78, 88–89, 103; in Civil Code of 1949, 123, 125; in classical Islamic law, 15, 19, 27; in modern-era Islamic law, 43 waters, actions of, 23, 43, 91, 128, 156 waterways, 15 Western civil code system, 2–4, 56–71, 98, 144, 153–55 westernization, 2, 57, 99, 107, 111 Western legal systems, xv–xvi, 1, 11, 56–71, 116–17 women’s quarters, 19, 88 zoning, 89