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Islamic Law and Civil Code

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

Richard A. Debs
Copyright Date: 2010
Pages: 216
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  • Book Info
    Islamic Law and Civil Code
    Book Description:

    Richard A. Debs analyzes the classical Islamic law of property based on the Shari'ah, traces its historic development in Egypt, and describes its integration as a source of law within the modern format of a civil code. He focuses specifically on Egypt, a country in the Islamic world that drew upon its society's own vigorous legal system as it formed its modern laws. He also touches on issues that are common to all such societies that have adopted, either by choice or by necessity, Western legal systems.

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

    eISBN: 978-0-231-52099-7
    Subjects: History, Law, Religion

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. v-viii)
  3. Foreword
    (pp. ix-xii)

    Richard debs completed this study nearly fifty years ago, as his doctoral dissertation, but had no time then to see it into print. This has been unfortunate for us in the fields of Islamic and Middle Eastern legal studies, since, if better known, his study would have served these fields well. It offers a precise, detailed account of the transition of a crucial body of law—that of landed property—from late Ottoman jurisprudence to modern, Western-style code, from the reign of Muhammad Ali to the regime of Gamal Abdel Nasser. It would have been useful if over the last...

  4. Foreword
    (pp. xiii-xiv)

    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,...

  5. Preface
    (pp. xv-xvi)
    Richard A. Debs
  6. Acknowledgments
    (pp. xvii-xviii)
  7. Transliterations and Abbreviations
    (pp. xix-xxii)
  8. Introduction
    (pp. 1-6)

    This book is intended as a case study in legal development. It is a study of the modern development of law in a non-Western society in which the course of progress in the modern era has been defined in Western terms. In this respect, it touches upon some of the problems common to all such societies that have adopted, by choice or by necessity, Western legal systems. Further, it is a study of modern legal institutions in a society that has a vigorous legal tradition of its own and that has attempted to draw upon that tradition in the formulation...

  9. 1 The Classical Islamic Law of Property
    (pp. 7-36)

    There is no general theory of property law in the Shari`ah. 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...

  10. 2 Traditional Islamic Law in the Modern Era
    (pp. 37-55)

    The beginning of the nineteenth century 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...

  11. 3 The Introduction of a Western Civil Code System
    (pp. 56-71)

    The development of egyptian law 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...

  12. 4 Property Law Under the First Civil Codes
    (pp. 72-97)

    The nineteenth-century judicial reform 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...

  13. 5 The Development of a National Legal System
    (pp. 98-115)

    The egyptian legal reform 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...

  14. 6 Property Law Under the Civil Code of 1949
    (pp. 116-144)

    The civil code of 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...

  15. Notes
    (pp. 145-160)
  16. Appendix: Transliterations of Arabic and Turkish Terms
    (pp. 161-162)
  17. Bibliography
    (pp. 163-180)
  18. Index
    (pp. 181-192)