SHARIAsource

Constitution for Egypt in English, published with the permission of Constitute.

A petition sent to the Ottoman Sultan from Egypt in 1155 AH (1742-3), concerning a dispute between a Muslim and a Christian in the town of Zifta. The Muslim petitioner attempts to enforce the regulation of the Pact of 'Umar that forbids non-Muslims from having houses taller than those of Muslims. Baldwin's commentary on the petition focuses on how the petitioning process relates to the sharīʿa court system in the Ottoman Empire.

In this source, al-Khallāl (d. 311/923) echoes the criteria adopted by al-Shāfiʿī (d. 204/820) for determining the credibility of witness. His approach is largely in line with that of Aḥmad b. Ḥanbal (d. 241/855) and the Companion Abū Mūsā al-Ashʿarī (d. between 42 and 53/662–73). However, Khallāl slightly diverges in permitting non-Muslims to testify in the specific case regarding the last wishes of a Muslim who dies while traveling, a scenario explicitly condoned in Qurʾan 5:106. Aḥmad rejects the notion of non-Muslim uprightness forwarded by Ḥammād b. Sulaymān (d. 120/737) and Khayr b. Nuʿaym (in office 120-27/738-45), maintaining that individuals outside the Muslim community could not possibly be considered righteous in an objective sense given that they transgress fundamental commandments, for example they partake in wine and pork.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.   

Ibn Wahb (d. 197/812), an Egyptian student of Mālik (d. 179/795), probes the legal implications of communal bias among Christians and Jews in the commentary. He writes that the presence of enmity between Jews and Christians results in a prohibition of the sale of slaves from one group to the other, as well as the prohibition of members of one group testifying against individuals from the other. In 8:425, Ibn Abī Zayd (d. 386/996) examines the positions of jurists on the admissibility of non-Muslim testimony in court. He relays the strict view of Mālikī jurist Ibn al-Qāsim (d. 191/806), which affirms the view of Ibrāhīm al-Nakhaʿī (d. 96/715), that non-Muslim testimony is wholly barred on the basis of Quranic verse 65:2. Ibn al-Qāsim indicates that the earlier Quranic verse 5:106—which allowed non-Muslims to serve as witnesses for a Muslim’s last will—has been abrogated by the verse 65:2. Ahmed El Shamsy employs this source in Justice and Leadership in Early Islamic Courts to address the broader legal implications of individual or communal biases' influence on the admissibility of courtroom testimony.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this text Abū Bakr al-Jaṣṣāṣ (d. 370/980) and Abū Jaʿfar al-Ṭaḥāwī (d. 321/933) documents the Hanafī position—upheld by al-Shāfiʿī’s (d. 204/820) teacher Mālik (d. 179/795)—which maintained stricter criteria for the qualification of witnesses. Mālik held that the testimony of witnesses who displayed any degree of heresy should be rejected automatically. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy contrasts Mālik’s position with that of his student Shāfiʿī who had more leniently maintained that heretical beliefs can only disqualify a witness if they have no precedent and have no basis in any possible interpretation of revelation.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

In this excerpt from Muḥammad b. Yūsuf al-Kindī's (d. 350/961) book on early Muslim judges, the author reports that the Qaysī Arabs and Yamanī Arabs, two warring tribes, were prohibited from testifying against one another by the Egyptian judge Tawba b. Namir (in office 115–120/733–738). On the second page, Kindī discusses the issue of non-Muslim testimony. He writes that while many Muslim jurists barred non-Muslim testimony entirely, those authorities who permitted it were faced with the challenge of devising techniques to screen witnesses from diverse communities. In this regard, Kindī records how the Egyptian ḥadīth scholar and judge Khayr b. Nuʿaym (in office 120–27/738–45) verified the personal credentials of non-Muslim witnesses by interviewing members of their respective circles (yasʾal ʿan ʿadālatihim fī ahl dīnihim). This procedure assumed that non-Muslims might also obtain a status of righteousness, a notion which is not necessarily assumed by other jurists. In Justice and Leadership in Early Islamic Courts Ahmed El Shamsy references this source to explore how the concern of bias due to enmity might also serve as sufficient grounds to reject testimony in an internal Muslim context due to political-factional enmity. 

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.   

In this text, Muḥammad b. Idrīs al-Shāfiʿī (d. 204/820) lays out his legal theory regarding the criterion for witness eligibility. Shāfiʿī’s introduces specific criteria, inferred from the Qurʾān, for admitting or rejecting testimony on an individual rather than group basis. He also forbids non-Muslim testimony, citing Qurʾānic precedent. [In section 6:476,] Shāfiʿī theorizes that a concern over individually held bias from enmity represents the underlying rational for denying the testimony of individual witnesses in courts. This rational extends to cases involving Muslim and non-Muslim witnesses and plaintiffs. He notes that, “We do not permit the testimony of an enemy against his enemy” (in Arabic “lā nujīz shahādat ʿaduww ʿalā ʿaduwwih”). Shāfiʿī proceeds to condemn baseless hatred due to factional rivalries and dictates that displays of such bias negate one's credibility to serve as a witness in all cases. Shāfiʿī also considers the consequences for one who might hold theologically related bias from heretical religious beliefs. This approach largely agrees with the Ḥanafī position. [In section 7:513-516,] Shāfiʿī provides two additional categories of individuals whose testimony should be rejected due to their theological beliefs, namely, (1) those who do not accept that false testimony is forbidden in Islamic law and (2) those who harbor enmity against a specific individual due to a theological dispute. Notably, Shāfiʿī qualifies that the latter case only proscribes the individual from testifying against those with whom he is in dispute (and thus potentially biased against). So, his convictions would not negate his overall credibility as a witness to testify in other cases. [In section 7:573-74,] In a further presentation of nuance, Shāfiʿī indicates that there is no blanket prohibition to disqualify the testimony of the gamer and poet. Rather, the testimony of these characters ought only to be disqualified on a case-by-case basis if it was discovered they were dishonest or derelict in their religious duties. In contrast, as Ahmad El Shamsy notes, other legal scholars indiscriminately excluded these "shady" characters. [In section 8:40,] Shāfiʿī demonstrates a more lenient approach towards including Muslim witnesses of questionable status, he represents a more stringent position regarding non-Muslim testimony which he completely prohibits. Since there is no reliable Hadith on the topic, Shāfiʿī relies on Qurʾānic verses to construct his argument. He cites 2:282 and 65:2, respectively, to select, “from those you approve as witnesses,” and the “upright witnesses from among you” to argue that non-Muslims are excluded because they are neither 'approved of' by Muslims nor considered part of the community of ‘upright witnesses.’ Shāfiʿī then anticipates and rebuts a counter-argument to his position on non-Muslim witnesses from the jurist al-Shaybānī (d. 189/804 or 805) who supports non-Muslim testimony. In his rebuttal, Shāfiʿī dissects Shaybānī's position and highlights the absurdity of preferring scripturalists over other non-Muslims for the purpose of testimony, given that they are seen to have falsified their scripture and should therefore be assumed even less trustworthy. Also Shāfiʿī hyperbolically questions why Shaybānī would show more concern for preserving the legal rights of Muslims over the rights of individuals of questionable status within the Muslim community, such as slaves or Bedouins, who are excluded from testimony because their integrity cannot be verified. Ahmad El Shamsy notes in Justice and Leadership in Early Islamic Courts that Shāfiʿī’s approach might be characterized as one which grants decisive authority to scripture. 

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts (ILSP/HUP 2017)—a collection of sources and other material used in and related to the book.  

This Country Profile provides a basic overview of the legal history and institutional structures of the Arab Republic of Egypt (Jumhuriyat Misr al Arabiyah), based on research produced by GlobaLex at NYU Law School and the Library of Congress. Under Egypt's Constitution, Islamic law (sharīʿa or fiqh) is the principal source of legislation. 

Religion appears in the constitutions of the Arab world, almost all with Muslim majorities, in a variety of ways. But aside from ensuring a public role for religion, these states are far from theocratic and show considerable though subtle diversity within them. 

One of the core functions of the courts in the Ottoman Empire was to allow the government to keep its officials in check, and to allow subjects to challenge abuses of power. In this court case from Cairo in 1672, the commander of Muwaylīḥ fortress on the Hijaz coast, in what is now northern Saudi Arabia, is accused of aiding a pirate attack on a boat belonging to an Upper Egyptian merchant.

The merchant brought the lawsuit in al-Dīwān al-ʿĀlī, the council of the Ottoman governor of Egypt, which functioned as a sharīʿa court as well as an administrative council. When operating as a court, a qāḍī presided over the proceedings, as in any other sharīʿa court, but in many cases, such as this one, the governor attended as well.[1] The reason that the lawsuit was brought in Cairo is not only that the plaintiff was Egyptian. While the Ottoman Hijaz was governed by a semi-autonomous dynasty, its military administration was the responsibility of the governor of Egypt. Muḥammad Āghā, the fortress commander, was therefore subject to the jurisdiction of governor Ibrāhīm Pasha.

The military status of the defendant also helps explain the frustrating lack of a clear conclusion to this case. After the plaintiff provides evidence, the qāḍī finds Muḥammad Āghā guilty of aiding the pirate attack, but specifies no punishment or compensation. Instead, according to the document, he simply imposes “what the sharīʿa deems necessary.” As the defendant was a military officer, the qāḍī’s role in this case was simply to determine the facts and assign liability. Any penalties were likely decided by the military authorities, possibly by Ibrāhīm Pasha himself.

No registers of the Dīwān al-ʿĀlī survive from this period; the earliest extant register is from 1741. This case has survived in the form of a ḥujja, the certificate issued by the court to litigants at the conclusion of a case, a copy of which was made in the register. To be precise, the document is a certified copy of the ḥujja. It is now held at the Başbakanlık, the central Ottoman archives in Istanbul, which suggests that the case was sufficiently important to have been reported to the central government.

[1] On the function of the Dīwān al-ʿĀlī, see James E. Baldwin, Islamic Law and Empire in Ottoman Cairo (Edinburgh: Edinburgh University Press, 2017), 37-9, 63-71.

ʿAbd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), pp. 89-90.

Source:  Abd al-Raḥīm ʿAbd al-Raḥmān, ed. Wathāʼiq al-maḥākim al-sharʿiyya al-Miṣriyya ʿan al-jālīya al-Maghāribīya ibbān al-ʿaṣr al-ʿUthmānī, vol 1 of 4 (Zaghwan: Markaz al-Dirāsāt wa-al-Buḥūth al-ʻUthmānīyya wal-Mūrīskīyya wal-Tawthīq wal-Maʿlūmāt, 1992-2004), p. 304.

Arabic text of the 1837 "Quasi-Constitution"/Organic Law (Qānūn al-Siyāsatnāmah) of Egypt under Muḥammad ʿAlī.

Arabic text of the 1882 Destūr Miṣr (Constitution of Egypt).

English translation of the Organic Law of 21 July 1913 of Egypt.

Arabic text of the 1930 Constitution of Egypt (Royal Order No. 70 of 1930, on Establishing a Constitutional Order for the Egyptian State).

Arabic text of the 1935 Constitution of Egypt (Royal Order No. 118 of 1935).

English translation of the 1953 Provisional Constitution of Egypt, Declaration of 10 February 1953).

Arabic text of the 1956 Constitution of the Republic of Egypt.

English translation of the 1956 Constitution of the Republic of Egypt.