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The Precarious Life and Slow Death of the Mixed Courts of Egypt

Published online by Cambridge University Press:  23 April 2009

Nathan J. Brown
Nathan J. Brown
Affiliation:
Director of the Middle East Studies Program, Elliott School of International Affairs, George Washington University, 2013 G Street, N.W., Washington D.C. 20052.
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Extract

Over the past century, most states of the Middle East have attempted to strengthen and centralize their legal systems, often following European models. Egypt undertook one of the first steps in that direction with its mixed-court system. These courts, which had jurisdiction in civil and commercial cases that involved a foreigner, however remotely, operated from 1876 until 1949. That this system could survive the political turmoil of those years, far outliving the circumstances which brought it into being, is remarkable.

Type
Articles
Information
International Journal of Middle East Studies , Volume 25 , Issue 1 , February 1993 , pp. 33 - 52
Copyright
Copyright © Cambridge University Press 1993

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References

NOTES

Author's note: I am grateful for the comments and assistance of Muriel Atkin, Judith Kohn Brown, Jenab Tutunji, and Robert Vitalis. Part of the research for this article was supported by a grant from the United States Institute of Peace. The opinions, findings, and conclusions or recommendations expressed in this article are those of the author and do not necessarily reflect the views of the USIP.

1 Brinton, jasper Yeates, The Mixed Courts of Egypt, revised edition (New Haven, Conn.: Yale University Press, 1968), ix–x.Google Scholar

2 Ibid., 210.

3 Al-Muṣawwar, 29 June 1936, included in Fish to secretary of state, 29 June 1936, Department of State General Records, Record Group 59, 783.003/116 National Archives, Washington, D.C.

4 See Cannon, Byron, Politics of Law and the Courts in Nineteenth-Century Egypt (Salt Lake City: University of Utah Press, 1988)Google Scholar; Hunter, F. Robert, Egypt Under the Khedives 1805–1879 (Pittsburgh, Pa.: University of Pittsburgh Press, 1984).Google Scholar

5 Nubar's initial proposal of 1867 was slightly less ambitious; the proposal was expanded in 1869. See Brinton, Mixed Courts, chaps. 1, 2; Cannon, Politics of Law, chap. 3.

6 Makhluf, Najib, Nūbār Bāshā wa mā Tamma ʿala Yadihi (Cairo: al-Matbaʿat al-ʿUmūmiyya, 1903), 96;Google ScholarCannon, , Politics of Law, 50.Google Scholar

7 See Hunter, F. Robert, “Self-Image and Historical Truth: Nubar Pasha and the Making of Modern Egypt,” Middle Eastern Studies 23, 3 (1987): 370Google Scholar; Cromer, Earl of, Modern Egypt (London: Macmillan, 1909), 2:316–17.Google Scholar

8 Ismaʿil may not have realized the full impact the courts would have. See Makhluf, Najib, Nubar Basha, 96–97.Google Scholar

9 See Salim, Latifa Muhammad, al-Niẓām al-Qada'ī al-Miṣri al-Ḥadith, 1875–1914 (Cairo: Ahram Center for Political and Strategic Studies, 1984), 58–66.Google Scholar

10 Ibid., 75–79; Cannon, Politics of Law, chaps. 4, 5. According to Cannon, Egyptian landowners shared Ismaʿil's resentment of European control, but also feared that unlimited khedival power would threaten their own economic position and therefore were sometimes protective of the mixed courts.

11 In this regard see Cromer, , Modern Egypt, 2:430–31.Google Scholar

12 For the positions of the two men, see Prints, Confidential 5531/l(i), 4, and 7 and 9238(i) in British Documents on Foreign Affairs: Reports and Papers from the Foreign Office Confidential Print, pt. 1, ser. B, vol. 15 (University Publications of America, 1985).Google Scholar See also al-Muqattam, 27 April 1889. For a comprehensive account of this complex period, see Cannon, , Politics of Law, pt. 3.Google Scholar

13 For an analysis of how Egyptian leaders used another area of the judicial system in their effort to promote autonomous state building, see Brown, Nathan, “Brigands and State Builders: The Invention of Banditry in Modern Egypt,” Comparative Studies in Society and History 32 (April 1990): 258Google Scholar.

14 See, for example, al-Muqattam, 2 May 1889Google Scholar.

15 Al-Muqattam, 2 October 1889Google Scholar.

16 Viscount [Alfred] Milner, , England in Egypt (London: Edward Arnold, 1904), 48Google Scholar.

17 See Cromer, Modern Egypt, 2:318–19.

18 Brinton, , Mixed Courts, 126–27Google Scholar.

19 The British were quite aware of this Egyptian attitude. See, for instance, Lloyd, Lord, Egypt Since Cromer, 1 (1933): 143–44Google Scholar.

20 Cannon, , Politics of Law, 150–51Google Scholar.

21 See Al-Sayyid, Afaf Lutfi, Egypt and Cromer: A Study in Anglo-Egyptian Relations (New York: Praeger, 1968), 186;Google ScholarLloyd, , Egypt Since Cromer, 1:94–95, 102–4Google Scholar.

22 For instance, a proposal to reduce the size of the judicial panels in the district courts from five to three was successfully blocked by foreign powers until 1915 (Brinton, , Mixed Courts, 72Google Scholar) as was an Anglo-Egyptian proposal to transfer registration of deeds from the mixed courts to an Egyptian office (Lloyd, , Egypt Since Cromer, 30–32Google Scholar).

23 See Brinton, , Mixed Courts, 169–75Google Scholar.

24 See Milner, , England in Egypt, 284–87Google Scholar; Lloyd, , Egypt Since Cromer, 1:132–38Google Scholar. Also see Arnold to Secretary of State, 12 May 1914, SD, 883.05/68 and the article on the subject in the Egyptian Mail, 24 April 1914, contained in the dispatch.

25 Annexation was considered as a serious option at least in 1917 (see Lloyd, , Egypt Since Cromer, 1:17)Google Scholar.

26 See, for example, the letter written by the chief of the secret police, McPherson, Joseph, in The Man Who Loved Egypt: Bimbashi McPherson, ed. Carman, Barry and McPherson, John (London: Ariel Books, 1985), 190Google Scholar. Martial law also allowed the British to make foreigners subject to taxes, such as the ghafir (guard) tax, from which they had been exempt. This caused a dispute after the war when foreigners and some capitulatory powers demanded that the tax be removed. Papers related to the dispute are included in SD 883.512.

27 The renewals of the mixed courts are mentioned in SD 883.05/74, 89, 92, 97, 104, 108, and 131. The quotation from Brunyate is from a lecture at Cambridge in 1924; see Brinton, Mixed Courts, 186–87. On foreign reaction, see the correspondence on the subject in SD 883.00 and 883.05.

28 Ramadan, ʿAbd al-ʿAzim, Taṭawwur al-Ḥaraka al-Waṭaniyya fl Miṣr min Sanat 1918 ilā Sanat 1936, 2nd ed. (Cairo: Maktabat Madbūli, 1983), 279–81, 328, n. 19Google Scholar; Great Britain, Foreign Office, Egypt No. 1 (1921). Report of the Special Mission to Egypt, 20; Brinton, , Mixed Courts, 189–90;Google Scholar SD 883.00/339, 783.001/1; Kitroeff, Alexander, The Greeks in Egypt 1917–1937: Ethnicity and Class (London: Ithaca Press, 1989), chap. 2Google Scholar.

29 The text of the declaration is in Davies, Michael H., Business Law in Egypt (Antwerp: Kluwer Law and Taxation Publishers, 1984), 8–9Google Scholar.

30 See, for example, Jardine to secretary of state, 28 December 1931, SD 783.003/44. Kitroeff, Alexander, The Greeks in Egypt 1917–1937 (London: Ithaca Press, 1989), p. 56Google Scholar cites a 1935 “Foreign Office minute by a member of the Egyptian Department”: “Ever since 1922 our attitude towards the Capitulations has been to treat them as a bargaining asset when negotiating a treaty with Egypt” (FO Minutes, 5 March 1935 J852/507/16 FO 371 19090).

31 The text of the drafts is included in Great Britain, Foreign Office, Egypt No. 1 (1928). Papers Regarding Negotiations for a Treaty of Alliance with Egypt.

32 Tignor, Robert, State, Private Enterprise, and Economic Change in Egypt, 1918–1952 (Princeton, N.J.: Princeton University Press, 1984), 84–86Google Scholar.

33 1931, SD 683.003/39.

34 Jardine to secretary of state, 28 December 1931, SD 783.003/44.

35 On foreign opinion, see the assessment by North Winthrop in 1927, SD 783.003/7; and Jardine to secretary of state, 4 October 1932, SD 783.003/59. For taxation and capitulatory reform, see the correspondence on the business license tax, 1931–32 SD 783.512/47, or the motor vehicles tax, 1932 SD 783.003/44, 53, 54; 883.512.

36 Andrews to secretary of state, 1 September 1923, SD 783.003/2.

37 Jardine to secretary of state, 14 November 1931, SD 783.003/43.

38 See, for example, Husayn ʿAmir, al-Ahrām, 9 August 1923.

39 Memorandum of conversation between Secretary of State Kellogg and Egyptian Minister Samy Pasha, 23 September 1926, SD 783.003/4.

40 Howell to secretary of state, 7, 27 April 1927, and Winthrop to secretary of state, 23 December 1927, SD 783.003/5; Brinton, Mixed Courts, 191–92. The draft treaty text is in Great Britain, Foreign Office, Egypt No. 1 (1928). Papers Regarding Negotiations for a Treaty of Alliance with Egypt.

41 Mahmud ʿAzmi, al-Ahrām, 24 April 1923. For a non-Wafdist version of this view, see the reply of ʿAdli's delegation to British proposals in 1921, printed in Great Britain, Foreign Office, Egypt No. 4 (1921) Papers Respecting Negotiations with the Egyptian Delegation, 9. See also Sprigg to secretary of state, 31 March 1921, SD 883.00/339.

42 The interview was printed by the Egyptian Gazette on 26 September 1923. It is included in Howell to secretary of state, 27 September 1923, SD 883.00/470.

43 Jardine lo secretary of state, 20 May 1931, SD 783.003/36.

44 Jardine to secretary of state, 8 February 1933, SD 883.51/161.

45 Fish to secretary of state, 20 November 1935, SD 783.003/109.

46 Jardine to secretary of state, 20 May 1931, SD 783.003/36. On one occasion the Wafd criticized their opponents from the other direction, arguing in 1927 that the Egyptian government's proposals to reform the capitulations did not go far enough. Winthrop to secretary of state, 23 December 1927, SD 783.003/7.

47 See the article in the Egyptian Gazette, 21 October 1932, enclosed in Jardine to secretary of state, 26 October 1932, SD 783.003/60.

48 Jardine to secretary of state, 31 January 1933, SD 783.003/65.

49 For the rise of the Egyptian bourgeoisie, see Tignor, State, Public Enterprise; Davis, Eric, Challenging Colonialism: Bank Misr and Egyptian Industrialization, 1920–1941 (Princeton, N.J.: Princeton University Press, 1983)CrossRefGoogle Scholar; Vitalis, Robert, “On the Theory and Practice of Compradors: The Role of cAbbud Pasha in the Egyptian Political Economy,” International Journal of Middle East Studies 22 (1990)Google Scholar; “Building Capitalism in Egypt: The ʿAbbud Pasha Group and the Politics of Construction” (Ph.D. diss., Massachusetts Institute of Technology, 1988).

50 See, for example, Asʿad, Muhammad, al-Ahram, 15 January 1937Google Scholar.

51 The Egyptians claimed that tariffs were limited not by the capitulations but by the 1906 Customs Convention with Italy (and with other countries under most-favored-nation treaties). When the convention expired in 1930, therefore, the Egyptian government resolved to enact a more protective tariff. The capitulatory powers complained, and a compromise was negotiated. The compromise helped establish a precedent for Egyptian autonomy in the matter of tariffs. See “Memorandum Regarding the Egyptian Customs Tariff and Customs Regulations (Reglement Douanier),” 12 December 1936, SD 783.003/140.

52 See the memorandum by Charles W. Yost, then American vice consul in Cairo, “The Taxation of Foreigners in Egypt,” 6 June 1931, SD 783.003/37.

53 Egyptian Gazette, 30 March 1926, contained in Howell to secretary of state, 3 April 1926, SD 783.003/3.

54 Egyptian Mail, 25 June 1931, included in Childs to secretary of state, 11 July 1931, SD 783.003/38.

55 Egyptian Gazette, 26 July 1933, contained in Jardine to secretary of state, 11 August 1933, SD 783.00/80.

56 Jardine to secretary of state, 14 November 1931, SD 783.003/43.

57 Jardine to secretary of state, 10 November 1931, SD 883.515/11; Childs to secretary of state, 29 November 1933, SD 883.51/195; Tignor, , State, Public Enterprise, 140–41Google Scholar. The mixed courts ruled in favor of the Egyptian on appeal in 1936, on the eve of the Montreux conference.

58 Khanki, ʿAziz, al-Maḥākim al-Mukhtaliṭa wa-l-Maḥakim al-Ahliyya (Cairo: al-Maṭābiʿ al-ʿAsriyya, 1939), 258Google Scholar. The author's numerous other articles denouncing the mixed courts are contained in this collection.

59 See Bey, Jibra'il Kahil, “al-Qaḍa’ Qaḍīman wa Ḥadithan,” and Zaki ʿUraybi, “Lughat al-Aḥkām wa-l-Murāfaʿat,” in al-Kitāb al-Dhahabī li-l-Maḥākim al-Ahliyya (Cairo: al-Maṭbaʿ al-Amlriyya, 1938)Google Scholar. For details on the political involvement and attitudes of Egyptian lawyers, see Ziadeh, Farhat, Lawyers, the Rule of Law and Liberalism in Modern Egypt (Stanford, Calif.: Stanford University Press, 1968)Google Scholar; Reid, Donald, Lawyers and Politics in the Arab World, 1880–1960 (Minneapolis: Biblioteca Islamica, 1968)Google Scholar.

60 Jardine to secretary of state, 14 November 1931, SD 783.003/43.

61 Fish to secretary of state, 12 December 1936, SD 783.003/140.

62 Brinton, , Mixed Courts, 194Google Scholar. The annex read, “It is understood that in the event of its being found impossible to bring into effect the arrangements referred to in Article 2, the Egyptian Government retains its full rights unimpaired with regard to the capitulatory regime, including the Mixed Tribunals,” SD 783.003/217.

63 Egyptian press articles on the subject are contained in Morris to secretary of state, 17 April 1937, SD 783.003/246.

64 The agreement and negotiating record are contained in SD 783.003—Montreux.

65 Brinton, Jasper Y., “Egypt: The Transition Period,” American Journal of International Law (April 1940): 211–12Google Scholar. Brinton includes the same passages in his chapter on Montreux in Mixed Courts.

66 Childs to secretary of state, 17 November 1936, SD 783.003/135.

67 See Kitroeff, Greeks in Egypt, chap. 3.

68 Aide memoire from the British Embassy in Washington, 20 February 1937, SD 783.003/234.

69 Fish to secretary of state, 12 May 1937, SD 783.003/252; R. C. Lindsey, British ambassador to the United States to Cordell Hull, secretary of state, 4 June 1937, SD 783.003/261.

70 It is true, of course, that the codes on which the national courts were founded—and continue to operate—were often based on the codes of the mixed courts. But Brinton demonstrates that after their abolition, the mixed courts had little or no influence on the subsequent jurisprudence of the national courts (see Mixed Courts, 211). While the capitulations were eliminated at Montreux, however, Egypt experienced great difficulty in making use of its new fiscal autonomy (see Tignor, State, Public Enterprise, 151–54,235–36).