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A PREHISTORY OF THE MODERN LEGAL PROFESSION IN EGYPT, 1840S–1870S

Published online by Cambridge University Press:  28 November 2018

Omar Youssef Cheta
Omar Youssef Cheta*
Affiliation:
Omar Youssef Cheta is an Assistant Professor in the Programs of Middle Eastern and Historical Studies at Bard College, Annandale-on-Hudson, N.Y.; e-mail: ocheta@bard.edu
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Abstract

This article examines the emergence of a new corps of legal practitioners in Egypt during the 1860s and early 1870s. The proceedings of hundreds of merchant court cases in mid-19th-century Cairo are replete with references to deputies and agents (wukalā; sing. wakīl) who represented merchant-litigants in a wide range of commercial disputes. Examining how these historical actors understood Egyptian, Ottoman, and French laws, and how they strategically deployed their knowledge in the merchant courts, this article revises the commonly accepted historical account of the founding of the legal profession in Egypt. Specifically, it argues that norms of legal practice hitherto linked to the establishment of the Mixed Courts in 1876 were already being formed and refined within the realm of commercial law as part of a more comprehensive program of legal reforms underway during the middle decades of the 19th century. In uncovering this genealogy of practice, the article reevaluates the extent to which the khedival state shared a legal culture with the Ottoman center, and, simultaneously, created the space for a new form of legal representation that became ubiquitous under British, and, subsequently, postcolonial rule.

Keywords

Egyptextraterritorialitylawyersmerchantsprofessionalization

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Type
Article
Information
International Journal of Middle East Studies , Volume 50 , Issue 4 , November 2018 , pp. 649 - 668
Copyright
Copyright © Cambridge University Press 2018 

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Footnotes

Author's Note: For their guidance, encouragement, and invaluable suggestions, I am grateful to Khaled Fahmy, Zachary Lockman, and Leslie Peirce. For their helpful comments and criticism, I thank the IJMES anonymous reviewers, as well as the participants of “The Making of Law in the Ottoman Space” workshop at the Collège de France (2015), and the “Capitalist and Colonial Encounters in the Middle East and North Africa” workshop at Harvard Law School (2016). Support for this research was provided by the Social Science Research Council.

References

NOTES

1 Egyptian National Archives (Dar al-Wathaʾiq al-Qawmiyya, hereafter DWQ) 3036-000206, 20 B 1291 (1 September 1874), #201: 123–24.

2 Brinton, Jasper Yeates, The Mixed Courts of Egypt (New Haven, Conn.: Yale University Press, 1930), ixGoogle Scholar.

3 The termination of the Mixed Courts took place gradually over a period of twelve years as part of the abolition of the Capitulations. See Convention Regarding the Abolition of the Capitulations in Egypt Signed at Montreux, on May 8th, 1937, accessed 29 August 2016, https://www.loc.gov/law/help/us-treaties/bevans/m-ust000003-0411.pdf.

4 For a discussion of the contradictions inherent to the liberal paradigm of separation of powers and its relationship to shariʿa-based legal regimes, see Hallaq, Wael B., The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2014), 37–73Google Scholar.

5 For example, Amr al-Shalaqani discusses pre-1876 judicial reforms at some length but only considers legal practice in light of his exploration of the Mixed and National Courts. See al-Shalaqani, Amr, Izdihar wa-Inhiyar al-Nukhba al-Qanuniyya al-Misriyya, 1805–2005 (Cairo: Dar al-Shuruq, 2013)Google Scholar.

6 Using a similar logic, the professionalization of the practice of law in continental Europe is typically dated to the aftermath of the 1848 Revolutions. See Henne, Thomas, “Advocate: Medieval and Post-Medieval Roman Law,” in The Oxford International Encyclopedia of Legal History, ed. Katz, Stanley N. (New York: Oxford University Press, 2009)Google Scholar, accessed 25 May 2017, http://www.oxfordreference.com/view/10.1093/acref/9780195134056.001.0001/acref-9780195134056-e-22. For a sociological grounding of the link between modern professions and “institutionalization” and “common credentials,” see Freidson, Eliot, Professional Powers: A Study of the Institutionalization of Formal Knowledge (Chicago: University of Chicago Press, 1986)Google Scholar. For a study of Egypt that adheres to the same logic, see Donald M. Reid, “The Rise of Professions and Professional Organizations in Modern Egypt,” Comparative Studies in Society and History 16 (1974): 24–57.

7 The Mixed Bar Association, established in 1876, was the first such association and included only lawyers who practiced before the Mixed Courts. A similar association for lawyers at the National Courts was founded in 1912.

8 In Egypt, institutionalized legal training was offered as early as 1849 as part of the curriculum of the School of Administration and Languages but was directed primarily toward training students for government positions. Ziadeh, Farhat J., Lawyers, the Rule of Law and Liberalism in Modern Egypt (Stanford, Calif.: Hoover Institution on War, Revolution and Peace, Stanford University, 1968), 21Google Scholar.

9 Rubin, Avi, “From Legal Representation to Advocacy: Attorneys and Clients in the Ottoman Nizamiye Courts,” International Journal of Middle East Studies 44 (2012): 111–27CrossRefGoogle Scholar.

10 Di-Capua, Yoav, Gatekeepers of the Arab Past: Historians and History Writing in Twentieth-Century Egypt (Berkeley, Calif.: University of California Press, 2009), 71–77Google Scholar.

11 Bon, Gustav Le, Sirr Tatawwur al-Umam, trans. Zaghlul, Ahmad Fathi (Cairo: Matbaʿat al-Maʿarif, 1913)Google Scholar; Edmond Demolins, Sirr Taqaddum al-Inkliz al-Saksuniyyin, trans. Ahmad Fathi Zaghlul (Cairo: al-Matbaʿa al-Rahmaniyya, n.d.).

12 Khanki, ʿAziz and Khanki, Jamil, al-Muhamah Qadiman wa-Hadithan (Cairo: s.n., 1940)Google Scholar; ʿAziz Khanki, al-Tashriʿ wa-l-Qadaʾ Qabl Inshaʾ al-Mahakim al-Ahliyya (Cairo: al-Matbaʿa al-ʿAsriyya, n.d.).

13 Khanki, ʿAziz, Turk wa-Ataturk (Cairo: al-Matbaʿa al-ʿAsriyya, 1970)Google Scholar.

14 , Zaghlul, al-Muhamah (Cairo: Matbaʿat al-Maʿarif, 1900)Google Scholar, especially the first section.

15 Ibid., 21–22.

16 Ibid., 1.

17 As Khaled Fahmy notes, Zaghlul and Khanki's accounts dismissed the mid-19th-century “legal system … as despotic and inefficient … [and] essentially characterised by a series of lacks and absences.” Fahmy, Khaled, “Law and Pain in Khedival Egypt,” in Outside In: On the Margins of the Modern Middle East, ed. Rogan, Eugene (London: I.B.Tauris, 2002), 86–87Google Scholar.

18 Samera Esmeir has noted the absence of any study “detailing the practices of the legal profession prior to 1883.” Juridical Humanity: A Colonial History (Stanford, Calif.: Stanford University Press), 43Google Scholar.

19 Salim, Latifa Muhammad, al-Nizam al-Qadaʾi al-Misri al-Hadith, 2 vols. (Cairo: Dar al-Shuruq, 2010)Google Scholar. See also, al-Shalaqani, Izdihar wa-Inhiyar; and Ziadeh, Lawyers.

20 Ziadeh, Lawyers, 41–42. What this law did in effect was distinguish between different kinds of legal practitioners. In 1910 another law would equate educated lawyers with practitioner lawyers.

21 Khanki, ʿAziz, al-Mahakim al-Ahliyya wa-l-Mahakim al-Mukhtalata: Madiah, Hadiruha, Mustaqbaluha (Cairo: al-Matbaʿa al-ʿAsriyya, 1939), 176–77Google Scholar. Also, Ahmad Fathi Zaghlul clarifies the responsibilities of the association, namely “protecting the status, reputation and rights of the legal profession and ensuring that it fulfills its duties.” Zaghlul, al-Muhamah, 297–98.

22 Zaghlul, al-Muhamah, 373–74.

23 Ibid., 274.

24 Ibid., 248.

25 Ibid., 270. Zaghlul looked for a formal charter that regulated the occupation but did not find it. Farhat Ziadeh claims that no Egyptian wakīls succeeded based on the documents of the Mixed Bar Association. However, he does not mention non-Egyptian wakīls. Ziadeh, Lawyers, 29.

26 Quoted in Ziadeh, Lawyers, 37–38.

27 This interest on the part of professionals to monopolize the history of their own profession is consistent with the sociological conception that “the absolutely necessary” formal attribute of any given profession is that its members master “a body of esoteric knowledge,” which only they can apply “to social needs.” Goldstein, Jan, “Foucault among the Sociologists: The ‘Disciplines’ and the History of the Professions,” History and Theory 23 (1984): 174–75CrossRefGoogle Scholar.

28 Avi Rubin raises a similar point in relation to the history of the legal profession in the Ottoman center. However, his sources date to the post-1879 years, which he designates as “the final phase of [the] evolution” of the modern Nizamiye courts. Rubin, “From Legal Representation.”

29 Heyworth-Dunne, J., An Introduction to the History of Education in Modern Egypt (London: Frank Cass & Co Ltd, 1968), 324–26Google Scholar. For an incomplete list of student members of the education missions (1826–80) and their careers upon their return to Egypt, see Ibid., 157–80, 221–22, 243–63, 301–7, 323–29, 436.

30 Cannon, Byron D., “Social Tensions and the Teaching of European Law in Egypt Before 1900,” History of Education Quarterly 15 (1975): 299–300CrossRefGoogle Scholar. The year 1868 witnessed the founding of the Oriental School of Languages and Administration, the precursor of the Cairo University Law School. Its founding director “focused on producing [law] practitioners before scholars” with limited success until the mid-1880s. The number of graduating students in 1874 and 1875 were seven and five respectively. Wood, Leonard, Islamic Legal Revival: Reception of European Law and Transformations in Islamic Legal Thought in Egypt, 1875–1952 (New York: Oxford University Press, 2016), 154–56CrossRefGoogle Scholar.

31 Nabulyun [Napoleon], Taʿrib al-Qanun al-Faransawi al-Madani (Cairo: al-Matbaʿa al-Khidiwiyya, 1866 or 1867).

32 For example, Tito Figari, an oft-hired wakīl in merchant court cases, also represented litigants before the British consular court in Cairo. See British National Archives, FO 841/33/31, Platero, Vita (British) Vs. Yeghen, Haleel Pasha (Ottoman), 1870.

33 Although non-Muslims enjoyed communal autonomy, there is strong historical evidence that they did not always have access to permanently functioning communal courts. As a result, their engagements with the law likely took place in shariʿa courts. Al-Qattan, Najwa, “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination,” International Journal of Middle East Studies 31 (1999): 429–44CrossRefGoogle Scholar.

34 Jennings, Ronald C., “The Office of Vekil (Wakīl) in 17th Century Ottoman Sharia Courts,” Studia Islamica 42 (1975): 148–49Google Scholar.

35 Bosworth, C.E., “Tardjumān,” in Encyclopedia of Islam, 2nd ed., ed. Bearman, P., Bianquis, Th., Bosworth, C.E., van Donzel, E., and Heinrichs, W.P. (Brill Online, 2012)Google Scholar, accessed 25 May 2017, http://dx.doi.org/10.1163/1573-3912_islam_COM_1179.

36 For a thorough example from early modern Egypt, see Hanna, Nelly, Making Big Money in 1600: The Life and Times of Isma‘il Abu Taqiyya, Egyptian Merchant (Syracuse, N.Y.: Syracuse University Press, 1998)Google Scholar.

37 For an overview, see Peters, Rudolph, “Administrators and Magistrates: The Development of a Secular Judiciary in Egypt, 1842–1871,” Die Welt des Islams 39 (1999): 378–97CrossRefGoogle Scholar.

38 Goldberg, Jan, “On the Origins of Majālis al-Tujjār in Mid-Ninetheeth Century Egypt,” Islamic Law and Society 6 (1999): 206–10CrossRefGoogle Scholar.

39 Article 6 of Tartib Majalis al-Tujjar, published in Zaghlul, al-Muhamah, appendix, 31–42.

40 Article 5 of Tartib al-Qanasil, published in Zaghlul, al-Muhamah, appendix, 43–45.

41 Articles 1 and 8 of Laʾihat al-Arbaʿin Band, published in Zaghlul, al-Muhamah, appendix, 45–52.

42 Kessler, Amalia D.. A Revolution in Commerce: The Parisian Merchant Court and the Rise of Commercial Society in Eighteenth-Century France (New Haven, Conn.: Yale University Press, 2007)Google Scholar.

43 Ibid., 28.

44 al-Naghia, Khalid ʿId, “Majlis Tujjar Misr (1846–1876): Dirasa Wathaʾiqiyya,” al-Ruznama: The Egyptian Documentary Annals 2 (2004): 239–405Google Scholar.

45 DWQ 3036-000206, 18 Z 1290 (6 February 1874), #86: 50–51.

46 DWQ 3036-000419, 24 Z 1292 (21 January 1876), #44: 21–22.

47 For two additional examples see, DWQ 3036-000206, 11 Za 1290 (31 December 1873), #75: 44–45 and DWQ 3036-000419, 16 Sh 1292 (17 September 1875), #1: 1.

48 Mawil Y. Izzi Dien, “Wakāla,” in Encyclopedia of Islam, 2nd ed., accessed 25 May 2017, http://dx.doi.org/10.1163/1573-3912_islam_SIM_7830.

49 DWQ 3036-000409, 25 S 1279 (21 August 1862), #197: 72.

50 DWQ 3036-000409, 10 N 1278 (10 March 1862), #9: 6. The court listed the following articles of the Ottoman Code of Commerce as grounds for its decision: 147, 150, 170, 210, and 214.

51 DWQ 3036-000206, 21 Ra 1291 (7 May 1874), #140: 85–86.

52 DWQ 3036-000206, 20 B 1291 (1 September 1874), #201: 123–24.

53 DWQ 3036-000409, 6 M 1279 (3 July 1862), #125: 47–48. For similar examples, see, DWQ 3036-000206, 14 N 1290 (5 November 1873), #32: 23 and DWQ 3036-000419, 22 Sh 1292 (23 September 1875), #3: 2–3.

54 DWQ, 3036-000419, 16 Sh 1292 (17 September 1875), #2: 1–2.

55 DWQ, 3036-000419, 16 Sh 1292 (17 September 1875), #3: 2–3.

56 Ottoman sources from the late 1870s draw a clear distinction between the titles vekil and dava vekil (lit. “trial agent”), the latter being a certified attorney. See Rubin, “From Legal Representation,” 116–19. Until it was dissolved in 1876, the Cairo merchant court did not make such a clear distinction, at least not consistently. Hence, legal practitioners were seldom referred to as wakīl al-daʿwa but almost always only as wakīl.

57 DWQ, 3036-000419, 16 Sh 1292 (17 September 1875), #3: 2–3.

58 This was the most common combination although Article 147 was also mentioned alone, and in combination with other articles.

59 For one example of a wakīl using these articles, see DWQ 3036-000503, 11 R 1288 (11 July 1871), no number: 13.

60 DWQ 3036-000503, 18 Z 1288 (28 February 1872), no number: 29. For an additional example, see, DWQ 3036-000206, 13 Za 1290 (2 January 1874), #79: 47.

61 Rubin, “From Legal Representation,” 112.

62 Agmon, Iris, Family and Court: Legal Culture and Modernity in Late Ottoman Palestine (Syracuse, N.Y.: Syracuse University Press, 2006)Google Scholar.

63 The “Bidard” in question is most probably Paul Bidart, who earned his doctorate in law from the Paris Faculty of Law in 1865, and who published on civil law including interpretations of specific legal articles in the 1860s. A possible, though less likely, alternative is Théophile Bidard, who was the dean of the Rennes Faculty of Law (1861–64) but who does not have a substantial list of legal writings to his name. See Catalogue général des livres imprimés de la Bibliothèque nationale: Auteurs, vol. 12 (Paris: Imprimerie nationale, 1897), 1185–87.

64 DWQ 3036-000206, 20 B 1291 (1 September 1874), #201: 123–24.

65 This is a letter-for-letter transliteration of the Arabic spelling of an Armenian name. The modern Turkish spelling of the same name is “Mıgırdiç.”

66 DWQ 3036-000409, 3 M 1279 (30 June 1862), #117: 44–45.

67 DWQ 3036-000125, unspecified date between September and November 1855, no number: 28–30.

68 All cases come from DWQ 3036-000503, 26 J 1288 (12 September 1871) – 2 B 1289 (5 September 1872).