Egyptian Civil Code
Encyclopedia
The Egyptian Civil Code is the primary source of civil law
for Egypt
.
The first version of Egyptian Civil Code was written in 1949 containing 1149 articles. The prime author of the 1949 code was the jurist Abd El-Razzak El-Sanhuri, who received assistance from Dean Edouard Lambert of the University of Lille
. Perhaps due to Lambert's influence, the 1949 code followed the French civil law
model. The code focuses on the regulation of business and commerce, and does not include any provisions regarding family law
which is usually handled through Shari’a. El-Sanhuri purposely left out family law and succession to set it apart from the Turkish civil code.
The code also provides for Islamic law
(shari’a) to have a role in its enforcement and interpretation. Article 1 of the code provides that, “in the absence of any applicable legislation, the judge
shall decide according to the custom
and failing the custom, according to the principles of Islamic Law. In the absence of these principles, the judge shall have recourse to natural law
and the rules of equity
.” Despite this invocation of Islamic law, one commentator has argued that 1949 code reflected a "hodgepodge of socialist doctrine
and sociological jurisprudence."
The Egyptian Civil Code has been the source of law and inspiration for numerous other Middle Eastern jurisdictions, including pre-dictatorship
kingdoms of Libya
, Jordan
and Iraq
(all three drafted by El-Sanhuri himself and a team of native jurists under his guidance), Bahrain
(2001), as well as Qatar
(1971) (these last two merely inspired by his notions), and the commercial code of Kuwait
(drafted by El-Sanhuri). When Sudan drafted its own civil code in 1970, it was in large part copied from the Egyptian Civil Code with slight modifications. Today all Arab nations possessing modern civil codes, with the exception of Saudi Arabia and Oman, are based fully or partly on the Egyptian Civil Code.
Its author, Al-Sanhuri, stayed loyal to his vision of having judges rule in accordance with the code itself before considering using Shari’a, which had not been codified for a long time. For the first time in the modern history of the Arab Middle East, the Shari’a would be used to back up a secular document. With the civil code as the principal source of law, all Shari’a courts were abolished. The writing of the Civil code was an attempt on the part of Al-Sanhuri to modernize Islamic law by adopting ideas from western civil law, a concept greatly supported by the elite members of Egyptian society. Westernization meant confining certain Islamic law to mostly matters dealing with personal status such as marriage, divorce, and inheritance.
British colonization led to some shift from the common law, but the common law had little long-term impact on the legal systems of many countries that fell under British rule. Thus civil law, mostly of French origins, now prevails throughout the Middle East, and the occasional remnants of common law are likely not to survive. As a result, the modern legal systems of Middle Eastern countries share the basic features of French law, such as relying on complete and logical statements of the law in codes as official sources of law, keeping a sharp division between public and private law and between commercial and private law.
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
for Egypt
Egypt
Egypt , officially the Arab Republic of Egypt, Arabic: , is a country mainly in North Africa, with the Sinai Peninsula forming a land bridge in Southwest Asia. Egypt is thus a transcontinental country, and a major power in Africa, the Mediterranean Basin, the Middle East and the Muslim world...
.
The first version of Egyptian Civil Code was written in 1949 containing 1149 articles. The prime author of the 1949 code was the jurist Abd El-Razzak El-Sanhuri, who received assistance from Dean Edouard Lambert of the University of Lille
Université du Droit et de la Santé de Lille
The Université du Droit et de la Santé de Lille or Université de Lille II is a French university for health, sports, management and law. It is located in Lille, Campus Lille II Droit Santé '...
. Perhaps due to Lambert's influence, the 1949 code followed the French civil law
Law of France
In academic terms, French law can be divided into two main categories: private or judicial law and public law .Judicial law includes, in particular:*civil law ; and*criminal law ....
model. The code focuses on the regulation of business and commerce, and does not include any provisions regarding family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
which is usually handled through Shari’a. El-Sanhuri purposely left out family law and succession to set it apart from the Turkish civil code.
The code also provides for Islamic law
Sharia
Sharia law, is the moral code and religious law of Islam. Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Quran, and the example set by the Islamic prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of sharia to...
(shari’a) to have a role in its enforcement and interpretation. Article 1 of the code provides that, “in the absence of any applicable legislation, the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
shall decide according to the custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
and failing the custom, according to the principles of Islamic Law. In the absence of these principles, the judge shall have recourse to natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
and the rules of equity
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
.” Despite this invocation of Islamic law, one commentator has argued that 1949 code reflected a "hodgepodge of socialist doctrine
Socialism
Socialism is an economic system characterized by social ownership of the means of production and cooperative management of the economy; or a political philosophy advocating such a system. "Social ownership" may refer to any one of, or a combination of, the following: cooperative enterprises,...
and sociological jurisprudence."
The Egyptian Civil Code has been the source of law and inspiration for numerous other Middle Eastern jurisdictions, including pre-dictatorship
Dictatorship
A dictatorship is defined as an autocratic form of government in which the government is ruled by an individual, the dictator. It has three possible meanings:...
kingdoms of Libya
Kingdom of Libya
The Kingdom of Libya, originally called the United Libyan Kingdom came into existence upon independence on 24 December 1951 and lasted until a coup d'état led by Muammar Gaddafi on 1 September 1969 overthrew King Idris of Libya and established the Libyan Arab Republic.- Constitution :Under the...
, Jordan
Jordan
Jordan , officially the Hashemite Kingdom of Jordan , Al-Mamlaka al-Urduniyya al-Hashemiyya) is a kingdom on the East Bank of the River Jordan. The country borders Saudi Arabia to the east and south-east, Iraq to the north-east, Syria to the north and the West Bank and Israel to the west, sharing...
and Iraq
Kingdom of Iraq
The Kingdom of Iraq was the sovereign state of Iraq during and after the British Mandate of Mesopotamia. The League of Nations mandate started in 1920. The kingdom began in August 1921 with the coronation of Faisal bin al-Hussein bin Ali al-Hashemi as King Faisal I...
(all three drafted by El-Sanhuri himself and a team of native jurists under his guidance), Bahrain
Bahrain
' , officially the Kingdom of Bahrain , is a small island state near the western shores of the Persian Gulf. It is ruled by the Al Khalifa royal family. The population in 2010 stood at 1,214,705, including 235,108 non-nationals. Formerly an emirate, Bahrain was declared a kingdom in 2002.Bahrain is...
(2001), as well as Qatar
Qatar
Qatar , also known as the State of Qatar or locally Dawlat Qaṭar, is a sovereign Arab state, located in the Middle East, occupying the small Qatar Peninsula on the northeasterly coast of the much larger Arabian Peninsula. Its sole land border is with Saudi Arabia to the south, with the rest of its...
(1971) (these last two merely inspired by his notions), and the commercial code of Kuwait
Kuwait
The State of Kuwait is a sovereign Arab state situated in the north-east of the Arabian Peninsula in Western Asia. It is bordered by Saudi Arabia to the south at Khafji, and Iraq to the north at Basra. It lies on the north-western shore of the Persian Gulf. The name Kuwait is derived from the...
(drafted by El-Sanhuri). When Sudan drafted its own civil code in 1970, it was in large part copied from the Egyptian Civil Code with slight modifications. Today all Arab nations possessing modern civil codes, with the exception of Saudi Arabia and Oman, are based fully or partly on the Egyptian Civil Code.
Historical background
Egypt began legal reform since 1875 when it gained independence from the Ottoman Empire in judicial and legal matters, which led to the establishment of the Mixed Courts to deal with foreigners and national courts. This necessitated a need for a set of laws that had secular influence. When Egypt obtained the needed international agreement for the union of its legal system in 1937, she started to draw up a new series of comprehensive codes. Most of this effort was overseen by the Egyptian jurist Abd al-Razzaq al-Sanhuri. The code was originally drafted in 1942, but went through several revisions before its passage in 1949.Its author, Al-Sanhuri, stayed loyal to his vision of having judges rule in accordance with the code itself before considering using Shari’a, which had not been codified for a long time. For the first time in the modern history of the Arab Middle East, the Shari’a would be used to back up a secular document. With the civil code as the principal source of law, all Shari’a courts were abolished. The writing of the Civil code was an attempt on the part of Al-Sanhuri to modernize Islamic law by adopting ideas from western civil law, a concept greatly supported by the elite members of Egyptian society. Westernization meant confining certain Islamic law to mostly matters dealing with personal status such as marriage, divorce, and inheritance.
British colonization led to some shift from the common law, but the common law had little long-term impact on the legal systems of many countries that fell under British rule. Thus civil law, mostly of French origins, now prevails throughout the Middle East, and the occasional remnants of common law are likely not to survive. As a result, the modern legal systems of Middle Eastern countries share the basic features of French law, such as relying on complete and logical statements of the law in codes as official sources of law, keeping a sharp division between public and private law and between commercial and private law.
External links
- http://www.utexas.edu/law/news/colloquium/papers/Baadepaper.docHans W. Baade, Transplants of Laws and of Lawyers, University of TexasUniversity of Texas at AustinThe University of Texas at Austin is a state research university located in Austin, Texas, USA, and is the flagship institution of the The University of Texas System. Founded in 1883, its campus is located approximately from the Texas State Capitol in Austin...
colloquia paper] - Mohamed Mattar, Islamic Law, Common Law, and Civil Law: The Place of Islamic Law in the Legal Family
- Anne E. Mayer, Modern Law: Varieties in Legal Systems in Middle Eastern Countries
- Egypt, Arab Republic of