Egypt’s legal system developed in layers over the course of several periods of the country’s history, including multiple periods of colonial domination by various foreign powers. As a result, Egypt’s legal system today contains legal and institutional features of several past systems and laws, some of which were retained, some adapted, and some merged over the course of time to fit Egypt’s needs.
The story of the emergence of constitutionalism and a rule of law system of government in Egypt, dominated as it has historically been by authoritarian regimes, is fascinating. Those interested in the history of Egypt’s legal development and the essential features of what emerged as its modern system are encouraged to read pertinent portions of books by noted scholars such as these:
- Nathan J. Brown, The Rule of Law in the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997)
- Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2002)
- Nathalie Bernard-Maugiron and Baudouin Dupret, eds., Egypt and Its Laws (The Hague: Kluwer Law International, 2002)
- Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (Cambridge: Cambridge University Press, 2007)
- Tamir Moustafa, “Law and Resistance in Authoritarian States: The Judicialization of Politics in Egypt,” in Tom Ginsburg and Tamir Moustafa, eds., Rule By Law: The Politics of Courts in Authoritarian Regimes (Cambridge: Cambridge University Press, 2008)
- Bruce K. Rutherford, Egypt after Mubarak: Liberalism, Islam, and Democracy in the Arab World (Princeton: Princeton University Press, 2008)
While none of those books are completely up to date, they all make major contributions to understanding Egypt’s legal system and laws today. And, because Egypt’s legal system is the model upon which those of several other countries in the Arab Middle East were based, understanding the Egyptian model also helps understand the systems in those other countries.
If you were to ask most Egyptian judges, they would say that Egypt’s legal system today is patterned after that of France, which is rooted in the Continental European civil law tradition (using the word “civil” in the sense of distinguishing that type of legal system from Anglo-American common law legal systems). And, for most practical purposes that is true.
But, Article 2 of Egypt’s constitution states that the main source of legislation shall be the principles of Islamic law, which is a legal tradition employing methods of jurisprudence similar in many ways to those of Anglo-American common law.
Occasionally, the two legal traditions come into conflict and must be reconciled by the Supreme Constitutional Court, which results in an important body of Article 2 jurisprudence. But, the law branch of this site will be devoted primarily to Egypt’s civil law legal system and its associated texts.
As in other civil law legal systems, government law in Egypt is considered to be embodied in legal texts, such as codes and statutes. That might sound like an unremarkable statement, but it has considerable importance in appreciating how central, even essential, legal texts are to the Egyptian concept of law and the rule of law. And, more importantly, it helps understand what may sometime seem to be a wooden, non-discretionary approach to applying and enforcing the law.
From a legal standpoint, this text-based view of what constitutes law was clearly evident during the period of undeclared martial law immediately after the January 2011 revolution, a period during which the law—including the constitution—was essentially whatever the military said it was. For example, after the ruling Supreme Council of Armed Forces (SCAF) issued its constitutional declaration to fill a post-revolution constitutional void, and subsequently issued an election law by edict in the absence of a sitting legislature, the SCAF took the remarkable step of submitting its election statute to the Supreme Constitutional Court (SCC) with a request to determine the constitutionality of the SCAF’s election statute under the SCAF’s own constitutional declaration. The SCC found some aspect’s of the SCAF’s election law to be in violation of some aspects of the SCAF’s constitutional declaration (while avoiding ruling on the constitutional validity of the SCAF’s declarations), so the SCAF amended its election law accordingly.
Think about that. Even though the law at the time was whatever the SCAF said it was, it was the intrinsic authority of the constitutional text that was considered to be controlling, not the authority of the SCAF to declare new statutes by edict, even though the SCAF could change its constitutional declaration at any time and in any way it pleased. Whether that reflected the SCAF’s view of what constitutes law, it did reflect the prevailing norms and constructs of Egyptian legal culture.
Those who adhere to the common law tradition prefer to retain the human element in interpreting and applying legal texts on a case by case basis in varying factual circumstances in order to minimize the potential for injustices and irrationality that could otherwise sometimes result from an overly wooden approach. Those who adhere to the civil law tradition seek to remove as much of the human element as possible from interpreting and applying legal texts in order to minimize the potential for injustices from an inconsistent application of the law from case to case as a result of human bias and consideration of such subjective factors as sympathy. There is merit to both views. Both systems seek justice, and both systems rely upon good judges to achieve it.
In practice, the two systems actually have much more in common than is often supposed. But, it is important for those accustomed to viewing the law and legal procedures through the lens of a common law legal system to recognize that there are substantial differences in the way the two systems view and apply law.
An irony is that Egypt, with its strongly predominant Islamic culture, adopted a legal system that seeks to objectify the law by codification, avoid recognizing even the potential for reasonable minds to differ on the interpretation of legal texts (hence the absence of dissenting opinions in judicial rulings), and gives no substantive legal weight to judicial precedent, while Islamic law (at least in Egypt’s prevailing Sunni tradition) is generally regarded as being the product of an ongoing dialogue between scholars and jurists (much like the common law) resulting in multiple and well-recognized schools of legal thought, all emanating from essentially the same legal sources, all considered to be equally legitimate, and within which great weight is given to precedent in making legal rulings on a case by case basis.
It is an interesting dichotomy in views of the law, and not an entirely natural fit. But, like Egypt itself, Egypt’s laws and legal system are full of such layers of complexity as a result of their development over the course of layers of history. It is part of what makes Egypt and its legal system so fascinating.