Materials for the Lectures

On

INTRODUCTION TO LAW
By Prof. Dr. Tarek Riad
L.L.M. S.J.D. Harvard Law School
Admitted to Practice in front of
the New York and Egyptian Supreme Courts
Professor of Business Law and Head of Business and
Commercial Law Department at the German University in
Cairo

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 Index
Title Page

Acknowledgment 6
➢ Definition of law 7
Preliminary definition 7
➢ Characteristics of law 7-9
It is first a rule
Regulation of social relations
Linked with a mundane penalty enforced by the state
➢ The necessity of the law 9
➢ Sources of law 10
Meaning of the word source 10
Origin of the law and the diversity of its sources 11
Comparison between legislation and custom 13
➢ Legislation 17
Definition
The enactment and repeal of a legislation 17-32
Enactment of a legislation 17
Types and degrees of legislation 17
Enactment and repeal of the constitution or the principal legislation 18
Submission of a proposal for the amendment 18
The approval of the house of representatives for the principal of the amendment 18
The approval of the house of representatives for the draft of the amendment 19
Approval of the people in a referendum 19
Enactment of the subsidiary legislation 19-21
Executive regulations (by-law) 19-21
Enactment and Execution of an ordinary legislation 21
Stages for the enactment of an ordinary legislation 21
Proposal of the legislation 22
Approval by the House of Representatives 22
The non-Objection (non-veto) of the president 23
➢ Implementation of a legislation and its entry into force 23

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 The promulgation of legislation 23
Proclamation of the legislation 24

❖ The principle that ignorance of the law is not an excuse 25-26

The scope of application of the principle that ignorance of law is not an excuse 26
Basis of this principle 28
Exception to this principle 29
Emergency legislations 29-31
Revocation of the legislation 31-33
➢ House of Representatives 33-38
➢ Election of the president of the Republic 38-41
➢ The Informal sources of legislation 41-43
The need for other sources of legislation 41
Informal sources, the order of their importance 41
The influence of religion on laws in countries of the east 43
The influence of religion on the Egyptian law in modern times 44-45

➢ Principles of Islamic law (Sharia) 46- 49

Reference to the principles of Islamic law (sharia) as a secondary source of legislation

➢ Doctrine and court precedents 49-54

Definition 49
The position of the jurist and the position of a judge 49
The status of doctrine and court precedents in modern times 50-53
Jurisprudence and court precedents are not formal sources of the current Egyptian law 53
Juristic reference books and legal collections 54

➢ Divisions and subdivisions of law 55

Introduction 55
Differentiation between public and private laws 55-57
The history of this differentiation 57
Criterion for differentiation 57-59
The Importance of differentiation between public and private laws 59
The extent of this differentiation 60-61

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 Subdivision of the Public Law 61
➢ External Public Law or International Public Law 62-63
➢ Internal Public Law 64
Definition and divisions 64
Constitutional law 64-65
Administrative law 66-67
Law of Criminal Procedures 68
➢ Subdivisions of the Private Law 69
Definition and introduction 69
Civil law 69
Commercial law 70
Maritime law 71
Labor law 72-74
➢ The courts of Egypt 75
Mixed branches of the law 75
Division 75
International Private Law 75-79
The Law of Civil and Commercial Procedures 79
➢ The Authorities Responsible for the Application of the Law 80
Introduction and Division 80
Authority Responsible for the Application of the Law, the Safeguards of the Judges 80
➢ The court system in Egypt 81
Ordinary courts 82
Civil and commercial courts 83
Criminal courts 84
Court of Cassation 84-86
Economic courts 86
Administrative courts 86
Supreme Constitutional court 87-89
➢ Persons 89
Definition and kinds of persons 89
Natural persons 89-90
Status of a fetus 91
End of a legal personality 92
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 Juristic persons 93
Definition and kinds of Juristic persons 93-95
Public juristic persons 95
Commencement and termination of Public Juristic Persons 96
Private Juristic Persons 96
Legal capacity 97
➢ The Personality and the Capacity of Enjoyment 97
The Entitlement of Natural Persons to enjoyment 98
The Entitlement of Juristic Persons to enjoyment 99-100
The Legal Capacity to Exercise 101-106
➢ The Patrimony 107
Definition 107
➢ Domicile 108
General Definition 108
The Importance of the Domicile 108
The General and the Specific Domicile 109
Determination of the General Domicile and its Characteristics 109-110
Change of Domicile 111
Legal Domicile 111-112
Types of Special Domicile 113
The Domicile of Juristic Persons 114

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 Acknowledgement

Dr. Riad acknowledges the invaluable assistance of Dr. Hatem Gabr and
Mrs. Khadiga Brada in preparation of the attached materials and also
acknowledges the books utilized as references for this book were the following:

- “El Wafee in explanation of the Civil Law, introduction to

legal sciences” by Dr. Soliman Morcos (1987), in Arabic.

- “Introduction to Law” by Dr. Hassan Kirah (2000), in

Arabic.

- “Introduction to legal sciences” by Dr. Soliman Morcos

(1952), in Arabic.

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(1)Definition of Law:
Preliminary definition:
1- Law may be defined as the body of rules which regulate social relationships
and which the state compels people to abide by even by force if necessary.

(2)Characteristics of Law:

From the above-mentioned definition it is perceived that the law has three
characteristics:
1- That it is a rule.

2- That it regulates social relations.

3- That it is accompanied by a penalty enforced by the state.

1-It is first a rule:

This rule has two features: that it is general and that it is regulatory. The
law is general in nature and regular in function. It is general, meaning that it is
not enacted for the sake of one act or one sole person. Hence an administrative
order to close a certain factory is not a law. Likewise a court’s judgment
ordering a particular person to pay a certain sum of money to another person is
not a law. The rule of the law has to be general. That is it should be applicable
in all the cases that it regulates and to all the persons it governs. This however
does not preclude the fact that a rule of law may regulate certain acts only, such
as acts concluded by people in their last days of terminal illness. It may also
regulate work accidents. A rule of the law may also apply to a certain group of
people, such as students or soldiers or workers. A law may also apply to one
person only such as the law which regulates succession to the throne or the
prime minister. For in such cases it does not apply to a specific person, but to
any person who becomes head of state or prime minister in which case an
individual would be considered in his capacity, and not in his own self. Thus the
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main issue is that the rule is general and does not apply to a specific case or a
particular person.
The law must not only be general but also regulatory. Meaning that it
applies to repeated incidents and persons in the same manner that it has been
applied before, because such repetition in application creates a harmonized
system with no default. This is the most manifest meaning of the law and this is
why there is a similarity between legal rules and the rules of nature. Their
main feature being that they are systematic. However there is a radical
difference between them, namely that a person complies with legal rules
deliberately and consciously. Knowing that though he can violate them yet in
so doing he would have to bear the consequences of such violation. But this is
not the case with the rules of nature, for the elements of nature are not governed
deliberately or consciously by these rules. And hence we can only comply with
them. For instance all bodies submit to the law of gravity. And we cannot do
otherwise.

2-Second, The law is a rule that regulates social relationships:

Thus a law cannot exist except in a human community. One cannot

imagine the existence of the law without the existence of a community. A single
individual, Robinson Cruzo or Ha'ie Ben Yaqthan – should he have ever existed
- living alone and having no relation with any other individual needed no law to
regulate a relationship that does not exist. However an individual living alone is
only an unrealistic philosophical hypothesis. For man is born in a community
and lives only in a community.

3-Finally the law is linked with a mundane penalty enforced by the state.

This is the radical difference between the rules of law and the rules of
religion and morals. For the penalty is the means by which a state ensures
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the respect of the rules of law. This penalty may be a criminological penalty
imposed by the authority against a criminal and it ranges from a fine to the
death penalty, or it may be a civil penalty when the state forces a debtor to pay
his dues to a creditor for example, or when it provides for the annulment of an
agreement that violates the law. Every legal rule must be linked to a penalty,
otherwise it would not be a law in the true sense even if it is provided for by the
law. In such a case it would only be considered as an advice which a person
may heed to or not. However, it is noted that the respect of the law is not always
a result of fear of the penalty, for people may respect the law because they believe
in its social necessity to protect the social system and to enable the community
to progress. The more advanced a nation is, the stronger is this belief in the hearts
of its members, and consequently the more they abide by the rules of the law
regardless of the penalty for its violation.
3- The necessity of the law:

Thus it is concluded that the law exists in a human community to regulate

the social relationships. As the existence of a community is necessary for man
who can only live in a community as mentioned earlier. Therefore social
relations must exist. And once those social relations exist, then they should be
regulated by rules, and these rules take the form of the law.

Any individual in a community cannot enjoy a natural absolute freedom.

For such freedom would jeopardize the freedom of others. Thus all freedoms of
all individuals must be limited. Each individual is free so long as his freedom
does not infringe on the freedom of others. Therefore the conflict between the
natural freedoms and the necessity of limiting them to avoid social conflicts, and
the conflict of interests and the necessity to reconcile them so that social harmony
is maintained, is what creates the necessity to have laws.
Sources of Law:

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 As mentioned earlier, the legal rule is established as a result of the
community's need for it and that it is a message to the people. This means that it
presupposes the existence of different social factors whether they are political,
moral, or religious which require the regulation of a certain type of relationships
in a particular way. This regulation embodied in the legal rule should be directed
to the public, that is, it should be expressed and presented to the people in a certain
manner so that they may know about it and abide by it.

The Meanings of The Word "Source":

In the law, source has many meanings. But we shall deal with only three
of them.
The first meaning implies the source that establishes a legal rule or that
presents it to the public. Or the accredited path through which a rule passes
from being a rule of conduct to be a positive law, and through that passage it
acquires the power of obligation. That is by passing through that path it becomes
binding to people and authorities and has to be enforced by the courts. In this
sense sources are those that produce the law, and there are two types of these
sources. The formal such as legislation and custom and the informal such as the
jurisprudence and court precedents.
The second, meaning refers to the different social factors that necessitated
the establishment of a legal rule from the source that produced it whether this
source is formal or not. This source is called the real or the material source. That
is the source from which the legal rule derives the content or the subject of the
message that it delivers. This source includes natural, economic, geographic, and
other factors, such as the environment, religion, tradition, and heritage. It is the
interaction between all those factors that makes the community feel the need to
have a certain rule. Should such a rule be laid down as a result of legislation for
example, then this legislation would be the source that produced it, and all those
factors together, would be its real and objective source. For it is all these factors

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together that dictated the legislator to enact the legal provision of the
legislation.
The third meaning is the historical origin which is the base of a certain
law, and this is known as the historical source. In this respect it may correctly,
be stated that the French code and the Islamic law are the historical sources of
the current Egyptian law.
We shall study the first meaning that is the sources producing the law or
the sources that produce the rules of conduct that are binding, whether these
sources be formal or informal, or whether they be obligatory or persuasive.

The Origin of the Law And The Diversity of Its Sources:

As mentioned earlier, law accompanies the creation and evolution of a

community. Its first rule is created once more than one person live in the same
environment. For social relationships among the members of this community
will be initiated and established and they need to be regulated and controlled.
This first rule is the fruit of human thought in its endeavor to find a solution for
the first dispute that arose in this community. A solution that would not only be
just but would also help establish security and order. Should such a dispute
occur again then the same successful solution would be applied. At first the
adoption of this solution would be left to the choice of the persons involved, as
it provides them with certain advantages until the whole community becomes
profoundly aware of the necessity of following this same solution. In time
following this same solution becomes obligatory and it becomes a legal rule that
is a binding custom.
Therefore custom is the first source of law in the history of any
community.
But once a community develops out of the phase of formation and into
the phase of regulation, and an authority that could impose its power over the
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members of this community is established, it feels that it has to interfere in the
regulation of the relationships of the people and it begins to regulate the rules of
custom and declares them officially, then it lays down other new legal rules and
embodies them into a legislation that it endeavors to enforce and implement and
it also endeavors to execute and implement the rules of custom.
This is how legislations come to being, and this is how a state enacts
binding legal rules as another source of legislation.
Between those phases religions appear in the history of humanity and
they bring to peoples rules that regulate their relationships, and thus religions
become a source of legislation.
Should the positive law in a certain country freeze or be defective, then
the judges would derive their judgments from the law of nature which they will
consider to be a source of law as well.
In certain countries the precedents of court judgments constitute legally
binding rules. Hence court judgments are considered yet another source of the
law. The legal opinions of the interpreters of the law may also to a certain extent
be considered as a source of law.
Legislation and custom are the general sources of law. That is the sources
that have been generally recognized by all legislations at all times as the formal
sources of law.
The impact of the other sources mentioned above varies from country to
country and from time to time. For religion, jurisprudence and courts
judgments, though not considered a formal source of the law at a certain time or
in a certain country yet they still have their impact on the law of that country,
whether as a result of influencing the interaction of the social factors which are
the real sources of law, or whether as a source of inspiration to the formal
sources and directing them to the legal rules that they should enact, or whether
through the explanation of the obscure parts of the rules produced by the formal
sources, and in that last case these informal sources interpret and explain the
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law and hence are called explanatory sources.
It is noted that legislation has more merits than custom, and hence is in
many cases better. Moreover public authorities in modern states have become
more powerful, and have greatly intervened in drawing legal rules, to such an
extent that legislation has become the principal source of law in most of those
countries.
Therefore we shall now quickly compare legislation with custom in order
to show how the former has more merits than the latter, and the debates
concerning them. Then we shall deal with legislation in a separate chapter, and
with other sources in another chapter showing their real role with regard to the
current Egyptian positive law.

A Comparison Between Legislation and Custom:

Custom is the oldest source of law in the history of the community. For it is the
natural means by which a community sets the legal rules that it needs. It is the
most convenient way to ensure that those rules are suitable to the community
where they are established. For custom keeps pace with the developments
of a community adapts the present rules, abolishes those which are no longer
suitable, and creates the new rules that are required by the emerging needs. This
evolution takes place in a natural automatic way without the intervention of any
specific authority or organization.
Hence the most eminent advantage of custom is that it is flexible and
responds to the needs of the community.
Yet on the other hand it has several disadvantages, the most important of
which are:
1-It is slow:

Custom takes a long time to be formed. For it is based on old practices

that people are used to for long periods. It keeps pace with the developments in
a community but lags behind it. Hence if a situation requires a quick change in

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the rule then custom cannot be the tool for that. As by its nature it only
establishes the legal rules gradually and over a period of time.
2-It has a limited scope:

Custom is not only slow but it has a limited scope. For a certain custom
may evolve in a certain area and another custom in another area. Consequently
the law in one country may differ from one region to another. The multiplicity
and diversity of laws in the same country complicates dealings and turns a
nation into fragmented parts, depriving it of one of the most powerful elements
of its unity, namely the unity of the law.
3- It is not drafted and consequently the rules of custom are not clear and are
difficult to prove. For custom in addition to being slow in getting established
and limited in scope, only establishes a meaning but not a wording. That is,
custom creates the content of a legal rule but does not draft its words from the
time it is established in a certain wording that reflects its existence and explains
its meaning. Hence it is called the non-written law. Consequently it becomes
very difficult, at least in its early forms, to determine whether a custom does
exist or not. Thus giving rise to disputes in this respect. Moreover it is also
difficult to determine the time when a certain practice has become a custom and
hence its implementation is obligatory. Moreover, its content is not clear and
disputes arise as to its meaning, and all such features are in contradiction with
the need for maintaining order in the community and stabilizing dealings, which
a law should achieve.
On the other hand, legislation precludes all the disadvantages and defects
of custom and it has the following merits.
1-Drafting:

Legislation establishes a legal rule in word and content. The content of a

rule is drafted in a certain form so as to confirm its existence, specify the start of
its application, and define it’s meaning. Thus putting an end to a lot of disputes

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that arise with regard to custom, and therefore provides the community with the
order and stability it seeks. This is why it is known as the written law.
2-Unity of the law:

Legislation achieves the unity of the law in each country. For it is enacted
by one public authority that can make it enforceable in every part of the country,
that is subject to it at the same time. This leads to simplifying dealings and
promoting the unity of all the parts of the nation. In the nineteenth century
unification of the law was achieved through the legislation, in France, in Italy and
in Germany, and replaced the numerous laws which were laid down on the basis
of custom, each of which prevailed in a certain area. We hope that the law would
be unified in all the counties of the Arab nation through legislation.
3-Speed in The Establishment and Amendment of the Legislations:

The Legislation takes a relatively short time to be established in

comparison with custom. Hence it can respond promptly and effectively to the
needs of the community to establish new rules or amend existing ones. A
characteristic not found in custom.
Legislation is criticized as being the product of the craftsmanship of the
legislator and not the natural outcome of the development of the community.
Hence it may be good if it satisfies the needs of the community and it may be
bad if it does not. However the remedy lies in (1) Perfecting the craftsmanship
of legislation (2) Having the legislator continuously amend it whenever
necessitated by the needs of the community.
Good craftsmanship of the legislator requires him to draw the legislations
from the real source of the law, that is from the different social factors that
require establishment of the legal rules. For legislations that do not respond to
the needs of the community sooner or later die.
Thus if a legislation is inspired by these real sources, it becomes the duty
of the legislator to monitor the development of these sources so that he may

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introduce to the legislation the amendments required by this development, in
order to make the law and its real sources compatible. Should the legislator fail
to do so then the legal rules that are continuously being produced by the
community shall have to find means other than legislation to establish
themselves, whether this be through custom or any other source.

Legislations

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1- Definition of legislation:

Legislation is an act on the part of the competent authority in the state,

basically the legislative authority, that enacts binding rules to regulate relations
in the community, in accordance with the procedures set for such enactment.
In this sense legislation is considered a source of the law.

The term legislation also means the legal rule itself that is laid down by
the competent authority, or the provision that is enacted by this authority
incorporating one or more legal rule. In this last meaning the term legislation
signifies the law in its specific sense. For one may say the narcotics legislation
on the narcotics law.

The Enactment and Repeal of a Legislation

Enactment of a legislation

The types of legislation and steps for its enactment:

Types and Degrees of Legislation:

There are three types of legislation in the following order of importance: 1-

The basic legislation of the state which is the constitution.
2- The ordinary or principal legislation which is enacted by the legislative
authority to regulate principal issues, and it includes all ordinary laws that
are not relevant to the basic order of the state.
3- The subsidiary legislation which is the legislation laid down by the executive
authority to regulate the details of the execution of an ordinary legislation
and to maintain public authorities. It includes the regulations, decrees, and
decisions taken by the different executive bodies.
A subsidiary legislation is bound by the ordinary or principal legislation
just as the latter is bound by the basic legislation.
Following, is a brief review of the method of enacting the basic and
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subsidiary legislations. Then we shall deal with the method of enacting and
executing ordinary legislations.
I- Enactment and Repeal of the Constitution or the Principal Legislation:

In 1964 the Egyptian government enacted a new Constitution which

replaced the 1956 Constitution that had in turn substituted the 1923
Constitution. At the year 1971, the permanent constitution of Egypt was drafted
and issued. After the events of January 2011, a new constitution was discussed,
drafted and issued on the year 2012. After the June 2013 revolution , a new
constitution was discussed, drafted and issued on the year 2014.This
Constitution stipulated that no amendment of its provisions should be affected
except in accordance with the procedures provided for in article 226

1-Submission of a Proposal for the Amendment:

This proposal is to be submitted either by the President of the Republic or by

at least one fifth of the members of the House of Representatives. This proposal
should define the articles that they seek to amend, and the reasons for such
amendment.

2-The Approval of the House of Representatives for the Principle of the

Amendment:

The proposal for amendment whether it is submitted by the President or by

the House of Representatives must be presented to the House of Representatives
for principle approval.
The proposal should be discussed within 30 days from the day it has been
submitted. The principle approval should take place by the majority of the

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members the House of Representatives should the principle be rejected, then
a request to amend the same articles may not be submitted in the same term
again.

3- The approval of the House of Representatives for The Draft of The

Amendment:
Should the House of Representatives approve the principle of the
amendment then it remains for it to approve the details of the amendment itself.
The amendment is then submitted to the House of Representatives for discussion
after sixty days from the date of the Principle Approval. For an amendment to be
approved at least two thirds of the House of Representatives members should
approve it.

4- Approval of the People in a Referendum:

After the approval of the draft of the amendment, the draft is then presented
to the people in a referendum within 30 days from the date of the approval.
Once it is approved by the majority of present voters in the referendum then
it enters into force from the date of the announcement of the results of the
referendum.

II- Enactment of the Subsidiary Legislation:

Executive regulations (by – laws)
In principle all acts of legislation are the exclusive jurisdiction of the
legislative authority. Therefore should this authority enact a legislation dealing
with a certain issue, then in principle it should include in that legislation all the
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detailed rules that regulate its execution, and to continuously amend and alter
these rules in the light of the situations which the executive authority faces in
the implementation of this legislation.
However regulating legislation requires full knowledge of all the different
circumstances where it is to be implemented and their minutest details.
Therefore implementing legislation may meet with practical difficulties that
only the executive authority becomes aware of. As it is impossible for the
legislative authority to anticipate such circumstances in advance and to include
them in the legislation itself. Two methods are adopted to face this problem.
Either to have the authority implementing the legislation refer it back to the
legislative authority requesting it to enact further legislations containing the
detailed rules for each situation that the executive authority finds necessary in
the implementation of this legislation on a case by case basis, or to delegate to
this executive authority itself to draw up these detailed legislations.
The first method places additional burdens on the legislative authority
which would have to enact a large number of secondary legislations, and disrupts
the administrative and executive activity until these detailed additional
legislations are enacted, and this delay may even result in negation of the
purpose of the interest behind enactment of the principal legislation itself. The
second method ensures the speedy and easy execution of the law and saves the
time of the legislative authority. Moreover this second method does not
jeopardize the freedoms and rights of the individuals. For in whatever
subsidiary legislations that the executive authority enacts, it is always bound be
the relevant principal legislation enacted by the legislative authority.
These executive regulations are objectively considered subsidiary
legislations in content, although in form, they are acts of public administration.
As they are issued by the President in his capacity as head of the executive
authority. Furthermore, these executive regulations take the form of decrees that
are issued in response to a submission by the competent minister. The State
20
Council, would first have to review their draft (article 63 of the law of the State
Council No. 47 for 1972) before they are issued. The principal legislation itself
may provide that rules necessary for its implementation shall be issued by virtue
of ministerial decrees. In case where the legislation itself does not include such
a provision, the President may authorize others in drawing the rules necessary
for its implementation. In cases where no provision is made regarding the
executive regulations then they may not be issued by virtue of ministerial decrees,
for they would then be null and void as they would have been issued by a non
competent authority.
Whatever the authority or body issuing the executive regulations it must
always is bound by the principal legislation. Thus it may not issue any executive
rules that contradict or amend or suspend the execution of the principal
legislation or exempt any one from implementing it. For if it does so, it would
then be exceeding its limits, and hence its decisions would be null and void.
This also applies to the various administrative authorities with regard to the
executive regulations or decrees that they may issue. For a lower authority may
not amend a decision which is enacted by a higher one.

III- Enactment and Execution of An Ordinary Legislation:

The legislative authority enacts the principal legislation and refers it to
the executive authority for it to take the measures necessary for its
implementation. Thus the former enacts the legislation and the latter makes it
enforceable.

Stages for the Enactment of An Ordinary Legislation:

The enactment of an ordinary legislation passes through the following
three stages before a law comes to being:
1- Proposal of the legislation.
2- Approval of the legislation by the House of Representatives.
3- The non objection or non veto of the President to it.
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1-Proposal of Legislation

Proposal of legislation is a submission of draft legal rules to the House of

Representatives for the aim of completing the necessary procedures until
legislation is enacted making it equal to the rules of positive law. This is
the prerogative of the President, the Council of ministers and any member of
the House of Representatives. (Article 122 of the constitution).

The draft submitted by the president or government or one tenth of the House
of Representatives members to propose legislation to the House of
Representatives shall is directly be referred to the competent committee
specialized in the subject matter at the House of Representatives. However the
proposal of the legislation by a House of Representatives member is referred to
a special committee to give its opinion as to its worthiness to be presented to
the House of Representatives, namely the proposals committee. If it is worthy
then the same procedures applied to the proposals made by the President and the
Government would apply. Any draft proposal submitted by a House of
Representatives member and rejected may not be resubmitted to the House of
Representatives in the same term. (Article122).

2-Approval By the House of Representatives:

The House of Representatives, convenes validly by in the presence of the

majority of its members Once the draft proposal is thoroughly discussed by
the House of Representatives it is then put to a vote.

Approval of the draft proposal requires the absolute majority of the present
members of the House of Representatives provided that they are not less than one
22
third of the House of Representatives members in the cases where no special
majority is provided for. If there is a tie in the voting then the draft proposal is
rejected. (Article 121 of the constitution).
3-The Non Objection (non veto) of the President:

An approval of legislation is completed by the approval of the House of

Representatives, and then it notifies the President to promulgate the new
legislation. The President has the right to veto the new legislation and send it
back to the House of Representatives within thirty days from the date the
legislation was sent to him.

If the draft legislation is not returned to the House of Representatives on time,

then it would be considered a law and promulgated.

But should the President send the draft law to the House of Representatives
on time, then it would be voted on again and if it receives a two thirds majority
voting approval then it is considered a law and promulgated.
-Implementation of A Legislation and Its Entry into Force.
The task of the legislative authority is completed by the approval of the
President of the draft project or draft proposition or by his non-veto of it within
the defined time limit, and thus a law would come to being. And it cannot enter
into force except when the people to whom it would be applied learn of it.
Thus it is necessary for the implementation of a law to have the executive
authority publish it in the official gazette.
-The Promulgation of Legislation:
The President in his capacity as head of the executive authority shall
promulgate the legislation, the purpose of such enactment being:-
1- For the President to declare that the competent authority has passed a new
legislation.
2- For this legislation to be enforceable by his order to the civil servants of the
23
executive authority to sanction it as one of the enforceable laws of the state. It is
from this order that the new legislation whether principal or subsidiary derives
its power of enforcement.
3- For the President to order the publication of this legislation in the Official
Gazette. Thus determining the date for its entry into force.
The Constitution does not define a certain time for a legislation to be
promulgated as it does for objection to it. As promulgation should be effected
immediately. That is as soon as the legislation procedures are completed whether
the President's approval is explicit or implicit by the lapse of thirty days without
his veto, or whether the approval of the House of Representatives is
by a special majority in the case of the President's veto to it.
As the promulgation implies approval and non-objection, (non veto) the
President may promulgate a legislation immediately upon being notified of it by
the House of Representatives with no need to wait for 30 (thirty) days. For as the
President has the prerogative to veto a legislation within thirty days, he also has
the right to declare his will of not using this prerogative as of the date on which
he could practice it. That is, he may promulgate the law at any time within thirty
or more days.
The President's prerogative is limited to the use or non-use of his veto.
Thus if he does not use his right to veto, or if he uses it and the House of
Representatives approves the draft by a majority of two- thirds, then in this latter
case it would be the duty of the President to promulgate the legislation. That
is he may not withhold or delay such enactment.
- Proclamation of the legislation:

A new legislation enters into force upon its promulgation. But it would not be
just to apply it to the public without their knowing of it. For example if a new
legislation is promulgated penalizing anyone who throws dirt in a public
street, then justice would require that such penalty not be enforceable except on
those who have learnt that throwing dirt in the street has become a punishable
24
crime. Hence justice requires that the enforcement of this new legislation
should be linked to knowledge of it. For legislation becomes enforceable
on the date of its promulgation, but it would not be actually binding to a certain
person except as of the date of his knowledge of it.
However making all people truly aware of the promulgation of a new
legislation is in itself very difficult. Moreover proving that everybody to whom
this law shall apply is aware of it is impossible. Furthermore public interest
necessitates maintaining order which is the objective of promulgation of a new
legislation. Therefore it becomes necessary to enforce this new legislation as
soon as possible and on the largest number of those to whom it shall apply
without examining the personal circumstances of each to verify whether he is
actually aware of this new legislation or not. Thus since the earliest of times
legislators have sufficed with making the legislation known to the public by
certain methods, such as publication, and supposing that all become aware of it
upon such proclamation or publication or after the lapse of a certain period from
the date of such proclamation, regardless of the date of their actual knowledge
of its promulgation.

- The Principle That Ignorance of The Law Is Not An Excuse:

Article 255 of the Constitution provides that laws shall be published in
the official gazette within 15 days from their promulgation and shall enter into
force one month from the day following their publication unless another date is
provided for, and that this implies that all people have become aware of this
new law. Consequently they are obliged to abide by it upon the lapse of one
month from its publication in ordinary circumstances, or after the lapse of the
period provided for in the legislation itself, whether this period is less or more
than one month, after which period no excuse of ignorance of the legislation
shall be acceptable from any one.
Consequently a foreigner who has been in the country for a short period

25
may not use the excuse that he does not know of the law to violate it. Nor would
such an excuse be acceptable from an Egyptian who has been abroad when the
law was published.
However the application of such a rule presupposes that the Official
Gazette reaches all people. Thus in case of a "Force Majeure" such as in the
case of war, or the suspension of railway transportation the new legislation
would not be applied except after the termination of this state of "Force of
Majeure" and the arrival of the Official Gazette at its destination.

- The Scope of Application of The Principle That Ignorance of The law Is

Not An Excuse:
A)As regards the source of legal rules:
As mentioned earlier legal rules have several formal sources such as
legislation, custom, religion…etc. the term used in the French language "nul
n’est censé ignorer la loi" implies that this ignorance applies only to legislations
and not to the other formal sources of the law. However this is not true. For this
principle embraces all legal rules regardless of their source whether it be
legislation, custom or religion. No excuse of ignorance of them shall be
acceptable.
B)As regards the type of legal rules:
Legal rules are either mandatory or complementary (explanatory)
explaining the will of the contracting parties.
Some scholars are of the opinion that the principle that ignorance of the
law is not an excuse should be exclusively applied to mandatory rules. That is
those related to public order. While others are of the opinion that it should apply
to all rules whether they be mandatory, or complementary (explanatory). For
they believe that this differentiation between the rules is unjustifiable on two
grounds.
26
1- That both rules the mandatory or the complementary (the explanatory) are
binding. And since the content of both is binding, therefore they are equally
binding as far as knowledge of their content is concerned.
2- That accepting the excuse of ignorance of complementary or explanatory
rules shall greatly restrict the scope of their application. For this shall open the
door to claims of ignorance for those who have an interest in not applying them.
This last opinion seems safer than the former one; particularly that
accepting the excuse of ignorance of the complementary or explanatory rules
shall thwart the binding power of these rules. For although the legislation has
left the fate of these rules in the hands of the parties at the time of conclusion
of a contract allowing them to disregard them at will, yet it is plausible that the
fate of these rules would be left in their hands after the conclusion of a contract,
taking into consideration that the hypothesis is that the contract is defective
and hence it cannot be complete except by virtue of these complementary rules.
Perhaps the advocates of the opinion of restricting the application of this
principle to the mandatory rules and not to the complementary (explanatory)
rules have confused the status of this latter at the time of conclusion of a
contract and their status after the conclusion of the contract. For at the time of
the conclusion of a contract these rules may be totally ignored by introducing
substitute contractual terms. While after the conclusion of a contract these rules
impose themselves as binding rules that make up for the defect in the will of the
two contracting parties. In this respect they would have the same binding status
as that of the mandatory rules. Consequently it would only be logical that both
types of rules should have the same status also as regards the principle that
ignorance of the law is not an excuse, and therefore it would equally apply to
both rules.
Moreover using ignorance of the complementary (explanatory) rules as
an excuse for not abiding by them presupposes the existence of a dispute
between the two contracting parties, and one of them alleging his ignorance of
27
these rules. In this case there would be two conflicting interests, namely the
interest of the party that claims ignorance of the complementary rule and the
interests of the party that adheres to that rule. Comparing the two interests
would then be obligatory and giving preponderance to one of them becomes a
necessity.
It is then evident that the interests of the party that adheres to the
complementary rule should supercede. For it would be supported by the binding
power of the complementary rule. Moreover it would be seeking to make the
rule of law prevail. While the other party bases its claim on ignorance of the
complementary rule and seeks to exclude its provisions unilaterally. There is no
doubt that the interests of the party that seeks to make the rule of law prevail
with regard to the contract should outweigh the interests of the party that seeks
to exclude the provisions of the law. Another factor that supports upholding the
complementary rule against the party that claims ignorance of it is that its
interests are supported by the necessity of maintaining the stability of dealings
in a community. Hence settling disputes and enforcing the complementary rule
in spite of ignorance of it is obviously the more effective and decisive means or
maintaining this stability.
-(Bis) Basis of This Principle:
Adopting the principle that ignorance of the law is not an excuse is a
social and a practical necessity that requires to make the rule of law prevail over
all so that justice and public order in a community may be maintained. It is
unimaginable that the power of law and its rules that are general by nature
should be restricted in application to the circumstances of every person so that
it would be applied to those who know of it and not apply to those who do not
know of it. For this would lead to chaos and would make the door wide open for
those who would claim ignorance of the law whenever such law is in
contradiction with their interests.
Therefore to ensure that the rule of law prevails over all, and to ensure
28
that no one tries to bypass its provisions under the pretext of ignorance of it,
modern laws have established an irrefutable presumption that everybody know
of the laws, and thus no one may be allowed the chance to prove that he does
not know of it even if he actually does not know.
-(Bis) Exceptions to this principle:
Scholars are not agreed as to the exemptions from this principle, an issue
which has raised a juristic dispute. However they are agreed on one undisputed
exemption, which we shall deal hereunder with.
The Undisputed Exemption: (The Force Majeure)
It is generally agreed that ignorance of the law may be accepted as an
excuse in all cases where it is proved that it was impossible for the public to
know of the law through the designated means determined by the law, namely
through the official gazette. These impossible circumstances are the "Force
Majeure" that make the arrival of this gazette to certain parts of the State
impossible, such as the "Force Majeure" including the occupation of parts of the
State by an enemy, or the occurrence of an earthquake or the disruption of
railway transportation or the occurrence of a disaster such as a flood or
other such circumstances that render knowledge of the law by the designated
means impossible.
Exemption from the enforcement of this principle allows for accepting
the excuse of ignorance of the law and exemption from enforcing its provisions.
Such exception can only last until the discontinuance of the "Force Majeure"
and the arrival of the official gazette to the public.
However the scope of this exception is limited to legislative rules only, as
it is only those that are published in the official gazette. And even so it is still a
limited exception as such incidents that lead to disruption.

-Emergency Legislations:
In the case where the House of Representatives is in recess between
29
sessions, or is dissolved, and a case of emergency arises that requires the
immediate enactment of an ordinary legislation the president should invite the
House of Representatives to convene immediately,
In case the House of Representatives does not exist, the President has
to intervene to respond to this urgent need by enacting the necessary legislation
and submitting it within fifteen days from its first session after recess. If such
decree is not submitted to it, then its force of law retroactively ceases without
need for a decree that abrogates it. Should this legislation be submitted to the
House of Representatives and not be approved by it, then its force of law
retroactively ceases, unless the House of Representatives approves its
enforcement during the previous period or otherwise settles its consequent
effects.
This means that the President may enact legislations or issue decrees that
have the same force as the laws enacted by the House of Representatives under
the following conditions:
1- That there is a necessity for it. That is that there is an urgent issue that has to
be dealt without delay. The urgency being left to the discretion of the
President himself.
2- That the House of Representatives be in a recess being in a state of
dissolution, or its sessions are suspended.
3- That such a decree is submitted to the House of Representatives within fifteen
days of their first meeting after the recess. Should it not be submitted, its
force of law would retroactively cease with no need for a further decree
terminating its
force of law. Moreover should it be submitted to the House of
Representatives and not be approved, and then its force of law would
likewise retroactively cease. Unless the House of Representatives approves
its earlier effects or decides to otherwise settle these effects.
It is noticeable that such legislations - though enacted by the sole will of
30
the President - that is without a prior approval of the House of Representatives
-, have the same force of ordinary legislation. Hence they are not bound by
previous ordinary legislations even by those enacted by the House of
Representatives, meaning that such presidential legislation may explicitly or
implicitly amend or annul a legislation enacted by the House of Representatives.

-Revocation of the legislation:

Should legislation include a provision determining its enforcement for a
certain period only, then the lapse of this period would mean an explicit
revocation. Examples of such legislations are the laws which are enacted during
the war and which include a provision that they would be in force only as long
as the war lasted. Or such as military orders based on martial law. For those are
repealed with the repeal of those martial laws.
Implicit revocation is affected when a new legislation is enacted
including a provision that contradicts the old one. For the enforcement of both
simultaneously is impossible, and the new intent of the legislator has the priority
over the old intent.
Thus one concludes that there are two forms of implicit revocation:
1- First where a new legislation is enacted and includes a provision that is in
absolute contradiction with a previous legislation, in which case the implicit
revocation would be limited to that provision in the old legislation which creates
the contradiction between the old and the new legislations. And with this exception
both the old and new legislations would be enforceable.
An example is article 45 of the revoked Civil Law which provided that
"ownership of assets whether fixed or movable shall be transferred by the mere
conclusion of a contract of transfer of property so long as the asset is owned by
the proprietor”. But in 1923 The Law of Registration was enacted and it provided
that the transfer of fixed assets might not be affected except through registration.
That is, they may not be transferred by the mere conclusion of a contract

31
transferring ownership. Consequently a contradiction arose between article 45
of the old Civil Code and the above-mentioned Law of Registration only with
regard to the transfer of fixed assets. The Law of Registration did not explicitly
provide for the annulment of this article as it did with others. However this article
was considered as implicitly revoked only in its provision with regard to the
transfer of fixed assets and not with regard to the transfer of ownership of
movable assets.
Another example is article 172 of the current Civil Law which provides for the
prescription of actions for damages arising from unlawful acts. When the deleted
1971 Constitution was enacted its article 57 provided that the criminal and/or
civil action arising from a crime of violation of personal freedom should not
prescribe. This last provision was in contradiction with the provision of article
172 of the Civil Code. Therefore the provision of this last article was considered
as implicitly revoked with regard to actions for damage resulting from the
above-mentioned crime by virtue of the enforceability of the Constitution, and
with no need for further intervention of the legislator.
Such implicit revocation becomes effective immediately upon occurrence of
a contradiction between an old and a new legislation. A new legislation may
include a provision revoking all previous provisions that are in contradiction with
its provisions. Such a provision in the new legislation would only be recognition
of a "fait accompli".
An implicit revocation is effected when a new legislation includes a
general provision that is in contradiction with a previous general provision or
when it includes a special provision that is in contradiction with a previous
special provision. In both cases the new provision revokes the old one. Should
the new provision be a special provision that is in contradiction with an old
general provision, then the new special provision shall revoke the old one only
as regards the special case that it has provided for. Consequently the old provision
would still be enforceable except with regard to that special case provided
32
for in the new legislation, as was the case with the Law of Registration of 1923
which repealed the general provision of article 45 of the old civil law.
Yet when a certain new legal system replaces another and revokes the old
rules that are in contradiction with the new legal system, this does not result in
revocation of the regulations issued by the public administration in
implementation of the old law and its provisions that are in agreement with the
new law shall remain valid even after the enactment of the new law unless this
new law explicitly stipulates that such regulations should be revoked.
The House of Representatives

The 2014 Constitution provides for the basic rules relating to the House of
Representatives that is entrusted with the authority to enact legislations and approve
the general policy of the State, the general plan of economic and social development
and the State’s budget, moreover it supervises the actions of the Executive
Authority.
The Constitution provides that the House of Representatives is composed of not
less than four hundred and fifty members elected by direct secret public ballot.
A candidate for the membership of the House must be Egyptian citizen, enjoying
civil and political rights, holder of at least the certificate of basic education, and
should not be below 25 Gregorian years of age on the day of opening candidacy
registration.
Other candidacy requirements, the electoral system, and division of electoral
constituencies shall be defined by Law in a manner that observes fair representation
of the population and governorates and equitable representation of voters. Elections
based on the individual or list system, or combination of both at whatsoever ratio
may be adopted.
The President of the Republic may appoint not more than 5% of the members, the
method of nomination thereof shall be stipulated by Law.
The term of membership in the House of Representatives is five calendar years,
33
commencing from the date of its first session.
Elections for a new House of Representatives shall be held during the sixty days
preceding the end of the term of the previous House.
Membership of the House of Representatives may only be cancelled if a member
has lost confidence and esteem or ceases to satisfy any membership condition based
on which he was elected or if he has violated its duties.
The decision of cancellation must be issued by a majority of two-thirds of the
members of the House of Representatives,
The House of Representatives shall accept resignation of its members, which must
be submitted in writing. To be accepted, a resignation must not be submitted after
the House has initiated procedures for cancelling the membership of the resigning
member.
The detailed rules relating to the election of the members of the House of
Representatives is provided in the House of Representatives Law no. 46 of 2014.
It states that the first House of Representatives formed after entry into force of the
2014 Constitution is to composed of 540 members elected by direct secret ballot
and that the President of the Republic may appoint not more than 5% of its members
according to the criterions provided in this law.
The election of the House of Representatives is based on 420 seats according to the
individual system and 120 seats according to the closed absolute lists system.
The Arab Republic of Egypt is divided into a number of constituencies for voting
according to the individuals system and 4 constituencies according to the lists
system as provided in a special law.
And the numbers of members that are voted in each constituency is based upon the
number of its inhabitants and voters taking into consideration the just representation
of inhabitants and governorates and balanced voters.
The law provides that the voting list must contain a number of candidates equal to
the number that is required to be elected in the constituency and an equal number
of substitutes, and it also provides for the number of Christians, workers and

34
peasants, youth, handicapped, Egyptians residing abroad and the minimum of
women that must be contained in each list.
Moreover, in order to remain a member of the House of Representatives, the
member must retain the status upon which he was elected, if he was elected as an
independent he must remain independent and if he was elected as part of a political
party, he must remain in the House of Representatives on behalf of said party, if the
status of the members of the House of Representatives is changed, he looses his
seat in the House of Representatives.
The law also provides that the term of membership in the House of Representatives
is five calendar years commencing from the date of its first session and that
elections for a new House of Representatives shall be held during the sixty days
preceding the end of term of the previous House.
Without prejudice to the provisions stated in the Law organizing exercises of
political rights, the law provides for the existence for the following conditions for
candidacy for the House of Representatives:
1- He must enjoy the Egyptian nationality singly as well as his civil and political
rights.
2- He must be inscribed in the list of voters in any governorate of the republic.
3- He must not be less than twenty-five years old on the date of start of opening
the candidacy procedure.
4- He must hold at least the certificate of basic education.
5- He must have performed his military service or was legally exempted from
it.
6- He must not have last his membership of the House of Representatives by a
decision of the House by reason of loss of confidence and esteem or loss of
the membership duties except in certain specific cases provided in the law.

The Law provides for the documents that the candidate has to present to the
concerned voting committee in the governorate of his choice and which include
attestation of his wealth and the wealth of his wife and his minor children and a
35
sum provided in the law as guarantee.

The law also provided that certain categories of civil servants may not present their
candidacy before presenting their resignation from their posts.
The law also provides that the candidacy documents have to be examined by one
or more committee in each government by a judicial committee composed of three
judges.

Moreover, the lists of the candidates and their status have to be published in wide
circulation newspapers and the various challenges relating to those lists are viewed
by the concerned court of the council of State.

The electoral propaganda has to respect the principles of the Constitution as detailed
in the law of exercise of the political rights.

And in the elections based upon the individual lists system the winner of the
election is the candidate who obtains the absolute majority of the right votes that
were given in the voting constituency and in case no majority is obtained by any
candidate the election is repeated between the two candidates who have obtains the
highest number of votes and the winner is the one who obtained the highest number
of the right votes.

And in the elections based upon the list system the winning list is the one that
obtains the absolute majority of the right votes that were given, and in case no
majority is obtained in any constituency the election is repeated between the two
lists that have obtained the highest number of right votes.

The law provides that the President of the Republic may appoint a maximum 5%
of the elected number of the House of Representatives half whom are women in

36
order to represent the experts and those whom he deems worthy of being
represented in the House of Representatives as detailed in the Law and on condition
that the following conditions be respected:
1-The same conditions necessary for candidative for the House of Representatives
must exist.
2- No person belonging to one party may be appointed if this results in amendment
of the representative majority in the house.
3- No member of the party to which the President belonged before being appointed
to his post may he appointed.
4- No person who participated and lost the elections of the House during the same
legislative session may be appointed.
The decision of appointment of the members of the House of Representatives has
to be published in the Official gazette and the appointed members have the same
rights and obligations as the elected members.

Election of the President of the Republic

37
I- The Constitution provides for the rules relating to the election of the
President of the Republic and the vacancy of his post as follows:
The President of the Republic is the head of the State and the head of the Executive
Authority. He shall care for the interests of the people, safeguard the independence
of the nation and the territorial integrity and safety of its lands, abide by the
provisions of the Constitution, and assume his authorities as prescribed in it.

The President of the Republic shall be elected for a period of four calendar years,
commencing from the day following the termination of the term of his
predecessor, and the President may only be reelected once.

The procedures for electing the President of the Republic shall be initiated at least
one hundred and twenty days prior to the end of the presidential term. The result
must be announced at least thirty days prior to the end of such term.

And the President of the Republic may not hold any party position throughout his
presidential term.

II- The conditions for running for President

1- A presidential candidate must be Egyptian born to Egyptian parents, and
2- Neither he nor his parents or his spouse may have held any other
nationality.
3- He must enjoy his civil and political rights,
4- He must have performed the military service or have been exempted
therefrom by law,
5- He shall not be less than forty calendar years of age on the day of
commencing candidacy registration. Other requirements for candidacy shall
be set out by Law.

38
 6- To be accepted as a candidate for the presidency, the candidate must
receive the recommendation of at least twenty elected members of the
House of Representatives, or,
To be accepted as a candidate for the presidency, the candidate must receive the
support from at least twenty-five thousand citizens enjoying the right to vote, in at
least fifteen governorates, with a minimum of one thousand supporter from each
governorate, and In all cases, no one can support more than one candidate as
regulated by the Law.
III- The Procedures for electing the President

1- The President of the Republic shall be elected by direct secret ballot, with an
absolute majority of valid votes.

2- Procedures for electing the President of the Republic are specified in the law.

3- The President of the Republic shall take the following oath before the House of
Representatives: "I swear by Almighty God to loyally uphold the republican
system, respect the Constitution and the Law, fully uphold the interest of the
people to safeguard the independence of the nation and the integrity and safety of
its territories."

IV- Procedures for resignation of the President or vacancy of his post

In case of the absence of the House of Representatives, the oath shall be taken
before the General the Assembly of the Supreme Constitutional Court.

The President of the Republic may submit his resignation to the House of
Representatives and if the House is not standing, he shall submit it to the General
Assembly of the Supreme Constitutional Court.

39
In case the President of the Republic is temporarily prevented from assuming his
authorities, the Prime Minister shall act in his place.

If the President of the Republic's post becomes vacant due to his resignation,
death, or permanent inability to work, the House of Representatives shall
announce the vacancy of the post. If such last vacancy is attributable to any other
reason, such announcement shall be made by majority of at least two thirds of the
members of House of Representatives. The House of Representatives shall then
notify the National Electoral Commission, and the Speaker of the House of
Representatives
shall temporarily assume the authorities of the President of Republic.

In case the House of Representatives is not standing, the General Assembly of the
Supreme Constitutional Court and its Chairman shall replace the Representatives
and its Speaker with respect to the above.

In all events, a new President must be elected within a period not exceeding
ninety (90) days as of the date of vacancy. In such a case, the presidential term
shall start as of the date of announcement of the election results.

The interim President may not run for presidency or request any amendment of
the Constitution or dissolve the House of Representatives or dismiss the
Government.

If the vacancy of the presidential office coincides with the holding of a

referendum or the election of the House of Representatives, the presidential
elections shall be given priority, and the then existing House of Representatives
shall remain in office until the completion of the presidential elections.

40
 The Informal Sources of Legislation

The Need For Other Sources Of Legislation:

No matter how much effort a legislator exerts he could not possibly
absorb all the legal rules necessary for regulation of the community and embody
all of them in legislative provisions. Whether this is due to the impossibility of
predicting in advance the rules that may be needed to regulate the community in
the future, or is due to the fact that some issues by their nature require different
solutions in different areas, or require to be changed with the passing of time.
This fact was taken into consideration by the French legislators. For in
this respect "Portalis" states that "It is
wrong to believe that a legislation can provide in advance for all the possible
situations and which could at the same time be understood by all citizens. For
each legislation has to have a shortcoming and it should be left to the judges to
experiments to make up for this shortcoming”. Charmon also states that
legislation is not and could never be everything. For there have to be other
sources beside it and our stand vis a vis these sources may differ. We may
encourage them or obstruct them, but we can in no way eradicate them
completely.
Informal Sources, The Order Of Their Importance:
Article 1 of the Civil Code provides that "legislative provisions shall
govern all matters to which these provisions apply in letter or spirit, and in the
absence of a provision of law that is applicable, the judge shall decide according
to custom, and in the absence of custom then in accordance with the principles
of Islamic law, and in the absence of such principles, the judge shall apply the
principles of natural justice and the rules of equity”.

The provisions of this article in the preliminary draft included another

paragraph that allowed the judge to be guided in his judgments by previous
judgments issued by the courts and by the jurisprudence, whether Egyptian or
41
foreign. It also allowed him to derive his judgment from the principles of
Islamic law (Shari’a). However the committee reviewing the draft law decided
to upgrade the principles of Islamic law (Shari'a) from being a possible or a
persuasive source of law to a formal or binding source. Then this last paragraph
was dropped by the senate on the basis that the general rules would suffice.
Thus the formal sources of law as provided for in the first article of the
current Civil Code are legislation, custom, the principles of Islamic law and
natural justice. And the informal sources which were not provided for court
precedents and jurisprudence.
It is noticeable that this article did not mention analogy and the general
rules of the Egyptian positive law among the formal sources of law, and that the
explanatory memorandum of this provision stated that the draft did not refer to
the general principles of the law of the state or to the general principles of the
law,because it was sufficient to refer to natural justice and to the principles of
equity. It seems thus that those drafting the law were at that time influenced by
those who believed that natural justice is in essence the general principles of
law, and that the fact that they did not mention analogy and the general rules of
the positive law was not intended to exclude reference to them, but was meant
to reflect that both of them, (or at least one of them) are included in the phrase
natural justice and equity.
At any rate the intention of the legislator may be depicted by the fact that
he placed legislation and custom before all other sources on the basis that their
provisions are fixed and defined, and placed the principles of Islamic law before
natural justice and equity on the basis that the former have fixed basis in the
books of Islamic jurisprudence, and hence they could be more reliable than
those of natural justice, as those latter have provoked extensive debates with
regard to their content and with regard to defining their essence, to the extent
that they have become widely conceived as mere undefined, unclear and vague
ideas.
It is also noticeable that the provision has referred to the principles of Islamic
law (Shari’a) as a secondary formal source of legal rules with regard to
relationship that are originally governed by legislations or custom, but it did not

42
refer to religion as a principal formal source of legal rules governing
relationships that are originally governed by the rules of religion, such as the
law of personal status for issues that are not regulated by a special legislation.
This is an issue that should be considered. For religion as a principal source of
legislation is different from the principles of Islamic law (Sharia) as a secondary
source.

The Influence of Religion on Laws in Countries of The East:

Islam was revealed in the East and spread in all its countries. Islam is
different from Christianity in that it is not only a religion but is a religion and a
state. As it deals with both mundane and religious issues. It combines the
principles of religion and morals with the principles of legislation and law. It
does not only deal with family relationships but with financial dealings as well.
There are numerous legal rules in the holy Qoran and in the sayings and
teachings of the Prophet (The Sunna), which are the basis of Islam and the
major and principal sources of Islamic law (Sharia). These rules deal with
marriage and divorce kinship, inheritance, wills, trade, sale, contracts, penalties
and other legal and criminological rules. Muslim jurists have interpreted and
explained in detail all these rules and provisions, and have also derived from
them many solutions. Consequently Islamic law (Sharia) became a complete
and comprehensive legal system that matches the most advanced laws. In fact
some of its provisions are better than those of the most modern laws.
Jurists Divide The Provisions of Islamic Law (Sharia) Into Two Sections:
(A)Provisions that are ordained by God almighty in verses of the holy Qoran,
and in the sayings of the Prophet which were either inspired or approved by
God. These are purely divine provisions.
43
(B) Provisions that were deduced by Moslem jurists and scholars from the
provisions of divine laws, from their spirit and reason, as well as from the
sources revealed by them. These too are divine laws as they are based on
these divine sources. But they are also considered positive laws as it is the
jurists and scholars who deduced them and laid them down.
Thus it is an undisputable fact that religion is a formal source of Islamic
law (Sharia) whether directly or indirectly.
The influence of Islamic law (Sharia) spread to all the countries of the
Islamic conquest. In fact the provisions of Islamic law are still enforceable with
varying degrees in many countries where religion is considered a formal source
of law to a certain extent at least, and a historical source at any rate for many
issues.
The Influence of Religion on the Egyptian Law in Modern Times:
Since the Islamic conquest of Egypt and up to the reign of Mohamed Ali
Islamic law (Sharia) became its official law. But it did not apply to non Moslems
with regard to issues of their personal status. For these were governed by the laws
of their own religions.
When Mohamed Ali acceded to the throne of Egypt he immediately took
the necessary measures to put an end to the chaos that had spread all over the
country. Therefore he began to adopt many of the rules of the French law
particularly as regards trade issues and penalties. Every legal rule that he adapted
from the French Law revoked a respective one from the rules of Islamic law
(Sharia). This state of affairs continued throughout the reign of his successors
until the era of Ismail Pasha, his grandson, who reformed the judiciary in 1875
and enacted the mixed codes, then the national codes based on the French codes.
The promulgation of these codes was considered a revocation of the respective
provisions of Islamic law (Sharia).
These codes included few provisions that codified parts of the Islamic
law, such as those pertaining to preemption, sales during terminal illness, or
44
cases of extreme injustice, as well as to some other issues related to sale and
lease. Then other special legislation were enacted, which dealt with issues of
inheritance, wills, endowments, (Wakfs) or trusteeship as well as other
provisions of the law of personal status such as law No. 25 for 1920 and decree
law no 25 for 1929. The new current Civil Code included in addition to all the
provisions of the old code, new ones regulating gifts and Hikrs (ground rent) As
gifts were formerly regulated by the laws of religion that governed personal
status, and Hikr was regulated by Islamic laws (Sharia). For these provisions,
Islam (through Islamic law (Sharia)) is a historical source of law. Hence
understanding and interpretation of these provisions should be conducted with
reference to the provisions of Islamic law. However these provisions are
independent laws that are applied and interpreted by courts. In so doing courts
are not bound by the opinions of Moslim jurists, but they are under the
supervision by the Court of Cassation. As for issues of personal status – mainly
- that are not governed by any provision either in the Egyptian codes or in
subsequent laws, the provisions of Islamic law (Sharia) shall continue to be
enforceable in which case Islam would be the formal source of law, and even
the original source.
However the rules of personal status of Islamic law (Sharia) do not apply
to non-Moslems. For in this respect they are governed by the laws of their own
religions. Hence both Christianity and Judaism are a formal sources of Egyptian
legislation for the laws of personal status for Christians and Jews respectively
with the exception of some special positive law legislations which apply to all
Egyptians regardless of their religion, such as the laws of inheritance, wills,
gifts endowments (wakfs) and trusteeship.
Thus it is clear that in spite of the modern trend that started in Egypt forty
years ago to codify legal rules which were directly derived from the provisions
of religion, yet to date religion is still a principal formal source of legislation
mainly with regard to issues of personal status.
45
 In this respect religion means the bodies of legal rules that are embodied
in the teachings of religions embraced by the Egyptian, which are Islam for the
Moslems, Christianity for Christians and Judaism for Jews. These bodies of
legal rules are part of the Egyptian positive law, although most of their
provisions are also applied in countries where those latter two religions are
embraced. Should any of these bodies of law be enforceable in a certain lawsuit,
then it is the duty of the court to verity the provision that is enforceable in this
particular lawsuit and to interpret it in the sound approved manner. In so doing
it is supervised by the Court of Cassation.
Religion is not only a formal and historical source of law, but it is also, to
the extent it is implanted in the hearts of its followers, one of the real or
objective sources of law with regard to issues related to that which is lawful and
that which is prohibited by religion such as matters of marriage and divorce.
This is why legislators always try to give religious consideration particular
attention when they are drafting laws, so that they may not enact laws that shake
peoples beliefs in their religion or shock them. This consideration is given even
more attention in the countries of the East, the cradle of all divine religions,
where people profoundly cherish religion, as it greatly influences their lives.
Therefore all that a legislator could possibly do if he encounters several legal
opinions of different sects derived from religion, is to compare them, and
choose from among them those that are most suitable to the circumstances of
the community without being bound by the stand of a certain sect or trend of
thought.
Principles of Islamic law (Sharia):
Reference to the Principles of Islamic law (Sharia) As a Secondary Source
of Legislation:
The Egyptian legislator did not suffice by considering religion as a
principal formal source of legal rules in issues related to personal status. But he
considered the principles of Islamic law (Sharia) as a secondary formal source

46
of law with regard to other matters as well. Those are issues that the legislator
did not leave for the provisions of religion to regulate in general. For the second
paragraph of the first article of The Civil Code provides that "In the absence of
a provision of a law that is applicable, the judge will decide according to
custom, and in the absence of custom in accordance with the principles of
Islamic law (Sharia), and in the absence of such principles, the judge shall apply
the principles of natural justice and the rules of equity".
Thus in this respect four points are worthy of consideration:-
1- First:
That reference to the principles of Islamic law (Sharia) is restricted to
matters in which the Egyptians are not governed by the provisions of their
respective religions. That is, this reference cannot be applied to issues of personal
status. But only to issues pertaining or to real estate or to dealings.

2- Second:
That reference is made to the general principles of Islamic law (Sharia)
and not to detailed provisions. This is an intentional act on the part of the
legislator. As principles are undisputable, but ideas and stands differ in relation
to partial or subsidiary rules, and this renders reference to them futile.
3- Third:
That the legislator made reference to the principles of Islamic law (Sharia)
mandatory before reference to the principles of natural justice and the rules of
equity. As he believes that the ideas of those latter are not clear or defined
while the principles of Islamic law are postulate principles founded on fixed
bases in the books of jurisprudence.
4- Fourth:
That the second article of the 1971 and 2014 constitutions have provided
that the principles of Islamic law (Sharia) are the basic source of legislation.
But in our opinion this change does not affect the status of the principles of
Islamic law (Sharia) as a secondary formal source of law, which comes after
legislation and custom as provided for in the first article of the Civil Code.
47
 The maximum that could be achieved by the provision of the above
mentioned second article is to upgrade the principles of Islamic law (Sharia) on
the list of material sources of legislation. For this provision calls upon the
legislator to draw the rules of legislation first and foremost from the principles
of Islamic law (Sharia) nevertheless legislation remains the formal source of
legal rules, while the principles of Islamic law (Sharia) remain the fundamental
material source of legislation.
The Court of Cassation had passed a ruling to this effect. It is worthy of
mention as well that the Supreme Constitutional Court has likewise passed a
ruling confirming and supporting this principle.

Doctrine and court precedents

Definition:
48
 Doctrine is the body of ideas of jurists in which they try to interpret,
explain and criticize t h e law whether these ideas are expressed in their books,
or opinions or instructions.
And court precedents are the body of rulings passed by courts with regard
to lawsuits presented to them. Some of those lawsuits may be related to a
certain issue, which is indisputably provided for by the law. Hence such court
rulings only have no value from the legal point. While other lawsuits presented
to the courts deal with issues in which the rule of the Law is subjected to
difference of opinion. Hence court rulings with regard to these issues not only
settle the dispute and the legal controversy but also create a legal rule. Hence
these are known as decisions of principle. It is this kind of ruling that we mean
when we refer to court precedents.
The Position of the Jurist and The Position of a Judge:
A jurist is a learnt scholar in the field of law who in most cases holds no
official post, or has no authority in establishing legal rules or in giving legal
opinions that are binding to the people. His job is mainly to interpret t h e
law, explain its general and specific aspects and deduce enlightened ideas that
show what the law should be like, help in the interpretation and application of
legal texts and provisions, and guide both the legislator and the judge without
making them bound by his interpretation.
A judge is a member of the judicial authority that is responsible for the
application of the law to the lawsuits presented to them. It is an acknowledged
fact that the principle of separation of power in modern states has made the
enactment of laws the jurisdiction of the legislative authority, and has made the
application of those laws to specific cases the jurisdiction of the judicial
authority. A legislator may not interfere with the work of a judge, nor may a
judge take part in the process of legislation. Therefore modern laws specify that
a judge may not pass general judgments indicating in them for example, the
49
judgments that he may pass in the future with regard to certain lawsuits. A
judge must restrict his judgment to the litigation presented to him. Moreover his
ruling would have no effect except with regard to this particular litigation
presented to him. Therefore his ruling may not apply to any one other than the
parties to the litigation, nor could this same ruling apply to other lawsuits.
Moreover a decision taken by a judge with respect to a certain legal point does
not bind this same judge to take the same decision or issue the same ruling with
regard to similar litigations. Even more so to make other judges or other courts
bound by his ruling even if such courts are of a lower degree. Thus it may be
concluded that a judge does not in any way issue legal rules that are to be
generally applied. But when considering a certain litigation and passing a ruling
with regard to it, he should apply the general legal rules that are found in the
formal sources of law that we have mentioned earlier.
Thus prima fascia it looks as though doctrine and court precedents are not
formal sources producing legal rules.

The Status of Doctrine and Court Precedents In Modern Times:

It is however noticed that when jurists are agreed on a certain opinion
whether through deduction of its meaning from the provisions, or through
analogy and comparison with other cases, or through drawing a general
principle on the basis of other provisions, or through any other way, then their
opinion, particularly if they continually and constantly adhere to it, would
become influential to the extent that the public would come to consider it as a
true expression of the essence of a legal rule, and hence use it in their pleas
before courts. In most cases courts would take a decision accordingly. This is
why the opinions of jurists are of great value.
This same concept also applies to court precedents. For a court ruling – though
it is not binding to it or to other courts but is only binding to the parties of the
50
litigation with regard to which the court ruling was passed - , yet in many cases a
court ruling would be considered a precedent to be followed by the same court
with regard to similar cases, though this previous ruling would not be binding
to it. Moreover other courts would in many cases be guided by a previous
court ruling particularly if it is passed by a supreme court. Thus if courts
constantly pass the same rulings with regard to the same law suits, then this
ruling would be considered by the public as the legal concept to be applied, and
hence in time such a ruling would acquire the power of law.
Moreover this trend is supported by the fact that the Court of Cassation
- which is the Supreme Court - has the power to control the application of the
law. Meaning that it is normally a court of law not of incidents. For its
responsibility is not to reconsider the incidents or facts which are proven by
the court rulings that are being challenged before it, and its task is not to
verify whether the incident of the litigation did occur or not. Its Task is only to
verify whether the law has been properly applied to those proven incidents.
Thus if a recourse against a court’s ruling is submitted to the court of cassation
on the basis of an error in the application of the law, then it would examine
this application. Should it find that the law was properly applied then it would
reject the recourse, and should it find that the law was not properly applied then
it would accept the recourse, cassate the court’s ruling and refer the case back to
another court of the same degree as that of the court that had passed the ruling
in the first place to reconsider the lawsuit and pass a new ruling. In which case
this latter court would have to follow in its ruling of the legal issue which
was challenged, the same opinion of the Court of Cassation as reflected in its
ruling
Consequently the Court of Cassation by virtue of the authority invested in it,
may cassate any court’s ruling submitted to it if it believes that this court’s
ruling has – in the opinion of the Court of cassation - erred in the application of
the law, therefore the judges, in spite of the full freedom granted to them by the
51
law to interpret laws, and in spite of their absolute independence in their
application of it, and in spite of the fact that they are not bound by any previous
rulings, find themselves obliged in passing rulings to take into consideration the
point of view of this higher court, and to abide by it so that their rulings may not
be cassated. Thus the interpretation and application of the law by the different
judges and courts has become uniform under the supervision of the Court of
Cassation.
This is the situation with regard to ordinary courts. The Supreme
Administrative Court plays the same role with regard to Administrative Courts
as that played by the Court of Cassation with regard to Ordinary Courts (Refer
to article 23 of law No. 47 for 1972 regarding the Council of State).
As said earlier a case may be submitted to a judge where the law has not
provided for. In which case he would have to deduce a legal solution either
through analogy or through reference to the general principles of the positive
law, or the principles of Islamic law (Sharia). Should courts constantly apply
this same legal rule then the public would in time consider it a general rule that
should be followed and respected. The public would then be justified in
considering that this stand for this rule would have been established through
court rulings. This was the case with the rule of the protection of literary or
artistic Property Rights, which was generally applied before the enactment of
the law regulating this protection. This was also the case with the rule of non-
abuse of rights, as well as to the provisions regulating the insurance contracts,
which were developed by courts before they were enacted by the legislator.
Some jurists are of the opinion that court rulings and precedents are a
formal source of law.
Therefore we may ask the question could jurisprudence and court rulings
or precedents be truly considered as formal sources of law? Or does what has
been stated above drive us to believe that they are not?
As a matter of fact the status of jurisprudence and court precedents differs
52
from country to country and from time to time. And therefore we shall study
their status in the current Egyptian Law.

Jurisprudence And Court Precedents Are Not Formal Sources of The

Current Egyptian Law:
There is no doubt that jurisprudence is not a formal source of law, nor do
the opinions of jurists have a binding power under the Current Egyptian Law.
Likewise court rulings and precedents are not a formal source of law so
long as our judicial system does not consider a legal precedent binding in the
future, neither to the court that issued the ruling nor to other courts.
But this idea may be opposed as being untrue. For precedents of court
rulings have actually established many legal rules, such as the rule for the
protection of literary, artistic and industrial property rights and the rule of non
abuse of a right.
However this opposition is groundless. As a judge does not and cannot enact
a law for which there is no legal provision. But he can merely endeavor to
derive a legal solution from the other sources of law such as custom or the
principles of Islamic law (Sharia). The last resort then being the principles of
natural justice and the rules of equity. His ruling would not be binding to others
as is the case with any court ruling that interprets a legislative provision.
Should court rulings constantly agree on one concept, then this concept would
be considered as a true expression of a legal rule derived from the formal
sources of law. Therefore it must be confirmed that court rulings recognize and
confirm a legal rule but they do not produce it as do the formal sources.

However one last comment must be made here, namely, that in our system,
court’s rulings do not have a binding power.
There is almost a unanimous agreement that jurisprudence and court
53
rulings and precedents are not considered as formal sources of law in Egypt.
However it is often noticed that litigants would refer to precedents and jurists
opinions in order to persuade judges to accept these points of view and issue
their rulings accordingly. Thus jurisprudence and court rulings are only
persuasive sources or informal sources of law but not formal sources.

Juristic Reference Books and Legal Collections:

Jurists publish their opinions and interpretation of law in books that are
considered references to those involved and interested in law and legal issues
(judges, lawyers…etc) Moreover some individuals or institutions or authorities
compile court rulings, which include certain legal principles and publish them
either as collections or as periodicals so as to facilitate reference to them.
In its interpretation of the law, jurisprudence now heavily relies on the
opinions reflected in court rulings and the judges' application of the law.
Moreover courts often rely on the opinions of interpreters of law when they
seek to interpret a law or to derive a legal solution from its provisions.
Consequently jurists reference books and collections of court rulings have
become indispensable to those who work in the field of law.

Divisions and Subdivisions of law:

Introduction:
54
 Jurists divide law in various ways but we shall deal here with two
divisions. The first is the division of law into public and private, and the
second is the division of law into substantive and procedural.
This last division is made on the basis that a substantive law establishes
substantive provisions for the relationships that it regulates and in which it
defines the different rights and duties. The procedural law on the other hand
deals with the procedures that ensure the enforceability and application of the
substantive law. For example the Law of Civil and Commercial Procedures is a
procedural law. As it identifies the procedures that should be followed to obtain
the rights which are provided for by civil and commercial laws, which are
substantive laws.
But the first division of law into public law and private law is the basic
division. It is a well-established traditional division, which is accepted by modern
jurists even by those who attack it. For such division has a clear practical
benefit in that it duly differentiates between the dealings of the state, which has
the power over the community, and the individuals who are subject to that power.
We shall suffice here by dealing with the basic divisions of law. Thus we
shall deal with the principle of this division and with the subdivisions of each
division as well as with subdivisions that belong to both divisions at the same
time.

Divisions And Subdivisions of the Law:

Differentiation Between Public and Private laws:
The History of this Differentiation:
Differentiation between public and private laws is old and traditional.
For the Romans had recognized this difference centuries ago. As they
considered the state as a public authority in the service of public interests. It
overrules personal interests that allow an individual to enjoy his personal
freedom and promote his personal interests. Thus asserting the trend of
55
individualism which prevailed at that time.
However this differentiation became confused and obliterated in the
Middle Ages as a result of the weakness of the state and the absence of a public
authority which could be solely sovereign over the community.
However the victory of the individualistic trend and the doctrines of
freedom in the early nineteenth century have made separation of the activities of
the individual and those of the state possible to such an extent that the old
differentiation between public and private law was revived in a manifest
manner.
But the recession of this trend of individualism at the end of that century,
the appearance and spread of the communal trend, and the increased
interference of the state in the various activities of the community that
accompanied it, have greatly rendered the activities of the individual and those
of the state so mixed up and intertwined together that jurists started to presume
that the traditional features of differences between public and private laws
would disappear, and that modern times would witness the era where public
law would overcome and sweep over private law.
However this assumption is not true. For the increasing intervention of
the state in the affairs of individual activities, and its increasing control of these
activities through statuary rules, and the fact that it does not leave a wide scope
for the authority of individuals, does not mean that these rules are part of public
law.
For what should be considered in this respect is the nature of the issues
governed by these rules and not their statuary or complementary feature. As the
character of the rules of private law are determined by the nature of issues they
deal with, and the mere fact that they have become statuary rules does not turn
them into rules of public law.
Therefore the principle of differentiation between public and private law
is still to date an acknowledged fact in modern jurisprudence in general.
56
Criterion for Differentiation:
Though traditional differentiation between public and private laws is
still acknowledged in modern jurisprudence in spite of attacks against it, yet
recognizing the criterion for such differentiations is not an easy task, and still
causes a lot of disagreement among jurists
The traditional criterion for such differentiation is that based on the
parties of the legal relationship. For if it is one of a state and its relationship
with individuals or other states then it would be governed by public law. But if
the relationship is between an individual and other individuals then it would be
governed by private law.
This criterion though seemingly clear and has in most cases valid
hypothesis and yields in most cases valid results, yet it can not be considered
absolutely true, for in most cases a state may have relationships with individuals
not in its capacity as the sovereign power in a community, but in its capacity as
an ordinary juristic person (legal entity) like other juristic persons. In which
case it would not be logical to have such a relationship regulated or governed by
the rules of public law. But it would definitely be governed by the rules of
private law. For example when the state invests its private, not public, funds
and concludes agreements in this respect, it would be acting as an ordinary
person not as a public entity representing sovereignty in the community.
Therefore its activities in that case would be governed by private law, just as is
the case with any similar investment or contract concluded by an ordinary
person. Thus using the character of the state as a distinctive criterion
differentiating between public and private law is not a valid one.
Thus jurists sought another criterion, namely, that of establishing such
differentiation on the basis that public law is that of dominance and command,
and that private law is that of the freedom or rule of the will. Hence according
to this criterion submission would be synonymous to public law and freedom to
private law.
57
 Yet even that criterion is not always valid. For not all rules of public law
are those forcing dominance and submission over individuals denying them
freedom of will and choice. For there are certain rules, such as constitutional
laws determining individual freedom, which can not be subject to this criterion
and hence be considered as rules of the private law. On the other hand private
law is not always and in its entirety a law of freedom, individual satisfaction
and the enjoyment of full authority and the rule of will. For even this full
authority and will are governed by statutory rules, or rules related to public
order and morals. These latter rules now abound in private law in modern
times. Nevertheless, these cannot as explained earlier be considered as rules of
the public law.
There is yet another criterion that is sometimes adopted by modern jurists
which is the same as that applied by the Romans, which differentiates between
public and private law on the basis of the nature of the interest that each law
seeks to attain or to protect. Hence public law is that which seeks to attain and
protect public interests. And private law is that which seeks to attain and
protect private interests.
But this criterion is not accurate and it ultimately leads to the complete mixing
of both private and public laws and the obliteration of the differences between
them. For it is extremely difficult to completely separate public from private
interests. As a public law aiming at attaining a public interest will inevitably
attain some private interests as well. By the same token a private law aiming
at attaining a private interest will consequently too attain some public
interests. For it is not conceivable that law, which primarily aims at regulating
the life of a community will seek to maintain and safeguard private interests
that are in contradiction with the public interests of the community. Marriage
is an example. For while it is one of the rules of private law, as it seeks to
attain a private interest, yet at the same time it attains a public interest. For the
establishment of a family and the regulation of relationships among its members
58
is one of the prime public interests of the community.
However as this criterion of the nature of interest has been proven
deficient, another criterion is now used as an improvement on the first which is
based on the character or nature of the parties of a legal relationship. According
to this last criterion public law would be that which governs relationships in
which the state is represented as the sovereign power or as the general authority
in a community. And the private law would be that which regulates
relationships between individuals in their capacity as individuals.
This last criterion may be rather more accurate in spite of criticisms
against it. As at any rate it could be a starting point to find a safer criterion. For
it conceals the criterion which we believe should be acknowledged, namely that
of the nature of the legal relationship itself. For the capacity of the parties
thereof are derived from this nature. Consequently it may be stated that public
law is that which governs and regulates relationships related to the right of
sovereignty in a community, or is concerned with the organizations of its public
authorities. Whereas legal relationships that are not related to this right, or to
issues that are not concerned with such organizations would be governed by
private law.

The Importance of Differentiation Between Public and Private Laws:

Though the differentiation between public and private law is established
in jurisprudence, yet the importance of this differentiation in not only a
theoretical issue but a practical issue as well.
For public law, which governs issues related to sovereignty, provides the
public authorities in a community with powers that the private law does not
provide to individuals. As a public authority, for example, may take unilateral
decisions that impose general or private charges on individuals. It may also
resort to exceptional coercive measures that enable it to enforce its orders,
in matters which constitute a direct part of its function such as taking direct
executive procedures without resorting to courts, or such as temporary
59
requisition, or expropriation of property for public interest.
The relationship between a state and its civil servants is governed by
special rules that differ from those that govern the relationship of a private
employer with his employees or his staff. For in the second case where the issue
is not related to the right of sovereignty, granting employees a relatively wide
margin of freedom vis a vis the employer to the extent that allowing them to go
on a strike is conceivable. But this idea is not at all conceivable with regard to
the relationship of civil servants with the sovereign state. This is particularly
true as in their capacity as civil servants they are in charge of public facilities
which could not possibly be allowed to stop or to be suspended.
The responsibility of the state or of public juristic persons, (legal entities)
and the responsibility of its civil servants are determined by certain rules and on
certain grounds that are different from the general rules defined in the private
law regarding the responsibility of private individuals or private juristic persons
(legal entities).
Contracts concluded by the administration are usually governed by extra
ordinary rules that are different from those provided for in contracts governed
by private law. For the administration may have the unilateral right to annul a
contract or amend its conditions or enforce a penalty for default or omission in
its execution.
Therefore the differences in systems and legal rules between the public
and private law necessitate having a specialized court that is independent from
ordinary courts to consider the disputes related to public law, particularity those
related to the activities of the administration. This is the case in the Egyptian
law. Where there are administrative courts together with ordinary courts.
The Extent of This Differentiation:
Though differentiation between public and private law still exits, in spite
of attacks against it, yet this differentiation is not absolute or rigid.

For on the one hand this differentiation is not inevitable or indispensable

60
to any system or legislation or law. But it is a relative differentiation known to
some legislations but not necessarily to all. Therefore it is not known to Islamic
law (Sharia) nor to Catholic Canon law. And though this differentiation is now
a days acknowledged in most laws, yet it is almost unknown to the Anglo-
Saxon laws.
On the other hand although this differentiation is acknowledged and
recognized, yet there are subdivisions of law that are difficult to consider as
either strictly private or strictly public law. As some of their rules are related to
the regulation of public authority and the right of sovereignty in a community,
while others are not. The existence of these different subdivisions of law does
not undermine or rescind the basic differentiation between public and private
laws. For at times some jurists would consider those subdivisions as solely part
of the public law, while others consider them as solely part of the private law
although they may be part of both simultaneously. This is only due to the
consideration of jurists only of its main purpose or the prevalent character of
its rules.
Finally the existence and recognition of this differentiation does not mean
that it is rigid or that its limits are fixed. For this differentiation is flexible,
subject in time and place to what may be considered as a right of sovereignty in
a community and what is not.
Subdivision of The Public Law:
Jurists divide public law into two major divisions external public law
and internal public law. The fist, though known as international public law,
yet considering it a law in the true sense of the word is doubtful. For its legal
status has to be discussed. Internal public law (national) includes various types
of law according to the variety of issues related to the sovereignty of the public
authority in a community. These subdivisions and their importance shall be
dealt with and discussed later.

External Public Law

Or International Public Law:
61
To what extent could International Public Law be truly considered a Law?
External Public law is known as international public law as it reflects
a series of legal rules that govern relationships between states in war and peace
alike.
It is often disputed whether international public law is a law in the true
sense of the word, on the basis that it has not been enacted by a supreme
political authority that is entitled to enact legislations that are binding to states,
and because of non existence of a penalty for default of its rules.
We believe that this law does not fully qualify to be a complete positive
law. But our point of view is not based on the absence of a supreme legislative
authority that could enact binding legislations at the international sphere. For
legislation is only one of the formal sources of law. Thus the absence of
legislation should not be a reason for the refusal to consider international
public law as a law. Consequently until such an international legislative body is
established and even after its establishment international custom can oblige
states to abide by legal rules in their relationships with each other.
But our reason to believe that international public law is not a true
positive law is based on a well acknowledged fact, namely, that there is no
collective power that could enforce the respect of its rules, and this is
a substantial precondition for the existence of a law in the true sense of the word
as stated earlier. For there is no authority in the international community that
can play towards individual states the role of a state towards individuals, that is
having a material mandatory power and authority over all the other states. A
power that would enable it to enforce a penalty over every state that violates the
rules of this international public law. Thus until the establishment of such a
body with a universally acknowledged unified sovereignty that supercedes all
the various national sovereignties, and over whom it has a final coercive and
commanding power, the rules of international public law can not be
considered as full positive law rules. That is rules that are actually enforceable
62
and imperatively applied in the international community and by all states, so
that any state that defaults would find a collective will obliging it to abide by
these rules. Therefore these rules have not yet completely developed to the same
standard acquired by the rules of internal law.
Many efforts have been exerted to establish such a universal entity that
would have full sovereignty over all states obliging them to respect the rules of
international public law. But all such efforts up to date have failed. The
existence of the United Nations at present does not mean that this body or
authority exists. For not all states are members of the United Nations.
Furthermore any member state has the right to withdraw from it. Moreover it
does not have a sovereign power in the true sense of the word over its members.
Thus the resolutions of its House of Representatives are only recommendations,
and the Resolutions of its Security Council may be suspended as some of its
permanent members have the right to veto, and it is those major permanent
members, the big powers, that dare to violate the rules of international law.

Internal Public law:

Definition and Divisions:

63
 Internal Public law is the body of legal rules that govern relationships
related to the right of sovereignty in the community internally and not
externally. That is those rules that govern the sovereignty within a state and not
the external ones of the state in its dealings with other states.
The internal public law has several subdivisions according to the issues
they deal with. These are the constitutional law, the administrative law, the
law of finance and the criminal or penal law. We shall briefly deal with each
one of these divisions.
1-Constitutional Law:
Constitutional law is the major division of internal public law. This is
the body of rules that determines the system of government in a state, defining
the public authorities in it. These are usually the legislative, the executive and
the judiciary. It is also the law that determines the jurisdiction of each authority
as well as the relationships between them, and the method of reciprocal control.
It likewise provides for public freedoms and rights of the individuals, which the
state is committed to ensure and safeguard.
Some jurists raise doubt as to whether constitutional law is a law in the
full sense of the word, on the basis that its rules are not binding which is a
prerequisite for each legal rule. They claim that, as it is the state that has the
sole power to enforce laws and to penalize those that default, therefore it would
not enforce such laws against itself if it defaults. They also claim that the
commitment of the state to abide by the law is not a legal obligation in the true
sense. But that such obligation is only and purely moral or ethical, and hence
penalty for default could be only moral or ethical.
This point of view is defective as it neglects the special nature of the
constitutional law where penalty and compulsion take a form different from
penalty and compulsion in the other branches of law. For constitutional law
presupposes the existence of different authorities in the community, and as
violation of its rules can only be committed by one of them, then penalty and
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compulsion can only be in the form of reciprocal control among those
authorities. For example the executive authority has the right to dissolve the
legislative council. The legislative council has the right to overthrow the
government as represented by the executive authority. Courts have the right to
revoke legislations that violate the law or the constitution, or at least the right to
refrain from applying or enforcing them. Should such measures of control fail to
fulfill their end then the issue would be in the hands of the source of all these
authorities, which is the people, who would then themselves have the right to
ensure the respect of the rules of the constructional law. This may be done
peacefully or through a revolution.
Moreover this point of view of those who appose it, distorts the function
of the state, making it appear as a compelling coercing body, while the state is
only there for the service of the law, for enforcing its provisions and for ensuring
the respect of its rules so that it may fulfill its main objective, which is to establish
a just and fair system in a community. Hence the respect of law is its first duty.
The law is not the law of the state from which it can release itself of the respect
of its rules whenever it wants. But it is rather the state of law. Therefore it is
bound and committed by its provisions, and coercion can be perpetrated
against the public authorities that violate the law. And in such cases the people
would have the right to sue the state so as to annul or invalidate its illegal or
unconstitutional acts, and the executive authority by virtue of its function
would have to implement the court rulings in this respect even if they are against
it.
All this proves that this opinion is wrong and that the constitutional law is a
complete law in the full sense.

1-The Administrative Law:

The administrative law is the body of rules that governs the structure of
the administrative authority and its activities in performing its function, which is
65
to manage public utilities for the interests of the people. It bases the fulfillment
of its responsibilities on the rights and privileges granted to the public authority
that are not enjoyed by individuals. It is by these rights and privileges that the
administrative authority discharges its duties through the decisions and orders
that it issues.
But there should be an effective way to ensure control over these
administrative orders and actions, in order to safeguard the rights of individuals
and guarantee that the executive authority performs its function properly, so that
in case such orders are illegal or deviate from the rule of law, then they would
be annulled or suspended or damages resulting thereof may be paid as the case
may be.
Although the ordinary judicial authority seems fit to conduct such
control, yet this concept is usually rejected on the basis of the principle of
separation of powers, which means that the ordinary judicial authority must not
interfere in the affairs of the executive authority so that this latter may be able to
perform its function in full freedom and independence.
This explains why many modern states, particularly in France, have set
up such an independent, administrative, judiciary body to ensure such control.
Egypt has followed this same path. The Egyptian legislator has established the
Council of State in 1946 which is composed of three divisions. The first is for
legal opinions to the administrative authority, the second is for legislation and
the third is the judicial division including what came to be known as the
"Administrative courts". Since their establishment, these courts have fulfilled
their tasks of supervising administrative affairs so as to prevent the abuses
of the administration and guarantee the protection of the rights of individuals.
penalty to be inflicted on the perpetrator, such as penalties for
murder, for theft, for adultery, for rape and for other crimes.

The penal law with its two subdivisions the general and the specific is a
66
substantive law, as it defines the acceptable acts and the criminal acts, and the
specific statutory punishment for each. The scope of this law expands with the
expansion of the idea of public interest as a result of the adoption and spread
of socialist doctrine. Hence the state penalizes acts that are considered an
aggression against this public interest such as crimes pertaining to supplies, the
trafficking of currency, violation of the right of work, the manufacturing and sale
of harmful food and drink …. Etc.

Although most jurists consider penal law as a branch of the internal public
law, yet some believe that it is a law that is partly public and partly private at
the same time. For as it is based on the idea of defense of the community then
it would be part of the public law. But at the same time it mostly penalizes for
crimes committed against the individuals themselves and jeopardizes their private
rights and interests, therefore it would be part of the private law. Moreover
application of the rules of this law, and the demand for the enforcement of
penalties, is not restricted to the public authority in the community alone. For
in some cases individuals would have the same right of initiating a public law suit.
Thus in this respect the penal law appears to be the law that guarantees the
rights and interests of individuals and hence it may be considered as part of the
private law, thus justifying the consideration that it is a mixed law.
However this opinion deserves thorough examination.
For crimes, whatever their type or the harm inflicted by them, and even if they
are perpetrated directly against the individuals themselves or their private rights
and interests. Nevertheless, those crimes are committed against the community,
for they constitute a serious violation of security and safety in it. Therefore the
public authority in a community is originally the body responsible for initiating
a lawsuit against a criminal demanding his punishment. The victim of a crime can
only in very limited cases, that are not representative, initiate such a lawsuit or
waive his right, or forgive the criminal and relieve him of punishment. For a
67
public prosecution suit and the punishment are the right of the community
and not of the victim.

B) The Law of Criminal Procedures:

The law of criminal procedures is the body of rules that defines the
procedures to be adopted in the application of the provisions of the penal code.
This law presupposes that a crime has taken place, and defines the
procedures for arrest of the perpetrators, investigations, the court’s ruling thereof,
and the execution of such court ruling, in addition to determining the authorities
responsible for carrying out such procedures.
This law defines the authorities responsible for arrest and for
investigation, and the jurisdiction of each with regard to investigation,
evidence, arrest, and searching to prove the occurrence of the crime and to
attribute it to a specific perpetrator. It also defines how the accused is to be
referred to court after completion of the preliminary investigation which is
mainly carried out by the Public Prosecution, the procedures for trial, the methods
for challenging courts rulings, and finally how penalties passed by courts are
executed.

This law of criminal procedures is a procedural law as it is confined to the

definition of the procedures that should be followed when a certain crime
provided for by the penal code occurs, if all the elements proving this crime are
established in accordance with this law, so that the criminal may be tracked,
brought to court and punished according to the court’s ruling. In this respect it
is similar to the law of procedures of the private law. As both do not regulate
rights and duties ensuing from the legal relationships but only define the ways
and means to protect these rights against aggressions and what should be
undertaken when the legal duties are violated.

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Subdivisions of the Private Law:

Definition and Introduction:-

Private law is the body of rules that govern the relationship between
individuals in their capacity as individuals, or more accurately it is the body of
rules that govern relationships not related to the right of sovereignty or the
organization of the public authority in a community. For when a state enters into
a relationship in its capacity as an ordinary juristic person and not in its capacity
as a sovereign power in a community, it is governed by the rules of the private
law and not the public law.
The civil law is the basis of the private law. However other branches of
the private law have been established to govern certain relationships and certain
affairs that require special rules other than the rules of the civil law as they are
related to a certain profession or trade or activities, such as the commercial law,
the maritime law and the labor law.

1-The Civil Law:

Civil law is the backbone of the private law. For it is the general legislation
governing relations of the private law. For it is the reference when no other
rules exist in other branches of the private law regarding the relationships they
govern. Moreover, unlike all other branches of the private law, it addresses
itself to all individuals, regardless of their sect or trade, with no exception. And
it addresses them also in their capacity as individuals. As it governs the
relationship between an individual and his family in the rules of the law of
personal status (family law), and it governs financial relationships through its
rules for dealings and transactions of a pecuniary nature.
However the rules of personal status in the different Arab legislations in
general are still beyond the scope of the civil law. For these are governed by the
old well established traditions that are derived from the principles of the different
69
religions. Consequently the Egyptian civil code only includes the rules governing
transactions of a pecuniary nature and not those related to personal status
(Family law).

2-The Commercial Law:

The commercial law is the body of rules governing commercial
relationships. That is, relationships between merchants in their capacity as
merchants, or relationships pertaining to commercial affairs and dealings.
The commercial law came to being as an independent branch of private
law as a result of the increase and spread of trade, as well as the need to develop
and promote it. A matter that necessarily requires regulating these commercial
relationships by means and rules other than those of the civil law, so as to
achieve the speed and strong confidence and trust, required in commercial
transactions. Yet the relationship between the commercial law and the civil law
is not completely severed. For the latter is still considered the origin and the
former is considered the branch. Therefore should certain commercial dealings
not be covered by the rules of the commercial law, then they would be governed
by the civil law which is the general legislation regulating private
relationships.
An example of the rules of the commercial Law where speed in concluding
commercial dealings is a great consideration, is the rule that makes proof of
commercial legal transaction, whatever their worth, exempted from a written
proof. Thus they may be proven by evidence or juristic presumption of law. This
rule which is dictated by the nature of commercial transactions is an exception
from the provisions of other civil transactions, which require a written evidence
proving the existence or lapse of legal transactions of a value that exceeds a
certain sum.
Another example of the rules of the Commercial Law that are aimed at
ensuring a strong confidence and trust which is required in commercial
70
transactions is the rule that presupposes the joint and several liability and
solidarity of the debtors, without need for an overt agreement or a legal
provision. This rule allows a creditor in a commercial transaction to demand his
dues from anyone of the debtors for the whole sum of the debt, thus relieving
him from demanding from everyone of them the percentage of his dues. It
further spares him the risk of such partition in his demand. This is a rule that is
dictated by the necessity of increasing the guarantees of the creditor in
commercial transactions. This rule again is an exemption from other civil
dealings which provide that solidarity between debtors may not be deduced or
presumed. But is created by agreement or by law (article 279 of the civil code).
Although it has been an acknowledged fact for long that the commercial
law is a branch of the private law, yet some modern jurists consider it a mixed
law on the basis that although most of its rules are relevant to private law yet
some others are relevant to public law. Such as those organizing and regulating
the chambers of commerce, stock exchanges, the freedom of trade, the system
of free competition, the system of foreign trade and customs. But this opinion
overlooks the fact that all those latter rules deal with the commercial activities
of individuals. Moreover they are in essence branches of public law, and hence
are not considered a true part of the commercial law although they are related
to trade.
3-The maritime law:
The maritime law is the body of legal rules related to maritime
navigation. It deals with vessels in their capacity as means of navigation, and
rights related to them, as well as with the affairs of sailors and pilots and the
maritime labor contracts with their special rules as well as with the
responsibility of ship-owners, maritime credit, mortgage, liens, maritime
transport and the relevant responsibility of the transporter and maritime
insurance.
The issues governed by this law, obviously make it, a branch of the
71
private law as is acknowledged by the majority of jurists. However this did not
prevent some modern scholars and jurists from considering it as a mixed law on
the basis that some of the rules and principles related to navigation are also
relevant to public law such as the nationality of vessels, the organization of
ports, piloting, in ports and the freedom and safety of vessels.
On the other hand, those rules though related to maritime navigation, yet
they are more related to some of the subdivisions of public law, such as the
administrative law or the public international law, then to the maritime law.

4-The labor Law

The labor law is the body of legal rules that govern legal relationships relevant
to hired labor, meaning work that is performed by some persons for others
under their supervision and control and in return for a payment. This branch
of law is relatively new. For the industrial revolution which swept the whole
world initiated the extensive use of machines and consequently created a new
class in the society, namely, that of workers. At that time the prevalent
doctrine was that of individualism and the principle of the sovereignty of will
derived from it. Adoption of those doctrines has led to the domination of the
strong over the weak, and employers have exploited workers in the name of
freedom and equality, in concluding agreements and contracts. To face and
confront such domination, and as a result of the growing power of workers and
the importance of the means of defense of their rights that they held, the new
socialist doctrine came into being and succeeded in establishing itself. Other
doctrines also came into being, based on the necessity of the intervention of the
state so as to prevent freedom of contract and the sovereignty of will from
becoming a weapon in the hands of the employers who have a compelling
economic power, to dictate their conditions on the workers.
Soon enough the process of legislation become very active in producing
obligatory provisions regulating the relationships between workers and

72
employers so as to safeguard the rights of the working class. This process
brought about the labor law and its independence as a branch of law.

Egypt did not know labor legislations except on a very limited scale in
the early years of the past century when industry was introduced in it.
Thereafter, labor legislations were actively enacted prior to the Second World
War and continued to be enacted during that war and after, as a result of the
spread of industry and the increased power of workers. However those labor
legislations remained scattered and uncoordinated Until 1959 when the
legislator enacted as a comprehensive labor law.
Although in origin, the labor law was a subdivision of the private law,
yet some jurists considered it a branch of the public law due to the
prevalence of the obligatory legal rules in it. But as we had earlier explained
the fact that some legal rules in a law are obligatory does not mean that it is
part of the public law.
Other jurists believe that the labor law is a mixed law which is partly public
and partly private. For although the labor law is affiliated to the private law as
it is based on the existence of a private work relationship, yet most of its rules
and principles that have been evolved during the process of its
development are related to public law such as the principle of the establishment
of employment offices, of arbitration in collective work disputes, of inspection
of the work place as well as rules relating to criminality and penalties for
committing violations of the provisions of the law.
Even though it is true that the establishment of these systems and
principles is relevant to the rules of the public law, nevertheless they are in
reality more relevant to other specific branches of public law such as the
administrative law and the penal law more than to the labor law, although
they are all put - together with the basic rules of the labor law - in one law for
the purpose of legislative policy. Moreover the main feature that determines the

73
nature of a law is the nature of its basic original rules and the issues they
govern, and not the auxiliary or complementary rules that may be of a different
nature. It is thus obvious that the core of the labor law, around which even
those rules and systems revolve, focuses on work relationships. These are
definitely private relationships that are in no way related to the right of
sovereignty in a state, nor to the organization of the public authorities in it. Thus
in this respect and for those above-mentioned reasons labor law should be
considered as a branch of the private law.

The courts of Egypt

Mixed Branches of the Law:

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Division:
As mentioned earlier some subdivisions of law may be classified as partly
public and partly private. These are the mixed laws. We had also stated that
their existence does not violate or distorts the basic differentiation between
public and private laws. Although many of the branches of law may be
considered by jurists as mixed laws, yet we believe that only two such
subdivisions may be considered as mixed laws, namely the international
private law and the law of civil and commercial procedures.

1-International Private Law:

The main feature of the international private law is that it deals with the
jurisdiction of national courts to view disputes in relationships where one of the
parties is a foreigner, and to determine the law that should be applicable to those
disputes.
Thus international private law is the law that presumes the existence of
legal relationships or links among parties of which one is foreign. For in
relationships or links where all the parties are nationals no dispute arises as to
the judicial or legislative jurisdiction, in such cases national courts would have
the exclusive jurisdiction to consider them. And the applicable law would
exclusively be the national law with its substantive and procedural rules.
Consequently the Egyptian courts would have the exclusive jurisdiction and the
Egyptian law would be the exclusive applicable law with regard to a marriage
contract concluded in Egypt between two Egyptian nationals or to a sales
contract concluded between Egyptians in Egypt for a real estate in Egypt, as
well as for the inheritance of an Egyptian who dies in Egypt and has assets
in Egypt.
But dispute arises with regard to relationships and links where one of the
parties is foreign. For in such cases disputes would arise as to whether it is the
national Egyptian courts or the foreign courts which would have the jurisdiction
75
to settle the dispute. Moreover disputes would also arise as to which would be
the applicable law in such circumstances, the national Egyptian or the foreign
law.
Should for example, a marriage contract be concluded in France between an
Egyptian man and an Egyptian woman, which courts would have the jurisdiction
to view it? Is it the Egyptian courts on the basis that they are the national
courts of both the husband and the wife? Or the French courts on the grounds
that the marriage contract was concluded in France? And if the jurisdiction
of Egyptian courts were established, then which law would they apply? The
Egyptian law on the basis that it is the national law of both parties to the
relationship or the French law on the grounds that it is the law under which this
relationship was established? What happens if a German sells to an Egyptian a
real estate in Italy and the sales contract was concluded in Egypt, then a dispute
later arises with regard to this sales contract? Which courts would then have the
jurisdiction? The Egyptian, the German or the Italian? Should jurisdiction be
established to one of them, then which law is applicable? Is it the Italian on the
basis that it is the location of the real estate subject of the legal relationship?
Or the Egyptian, on the basis that it is the law of the buyer and the law of the
country in which the legal relationship was established, that is the law of the
state where the sales contract was concluded? Or the German on the basis that it
is the law of the other party to the sales contract, namely the seller?
How then may a dispute with regard to a legal or judicial jurisdiction be
settled among the different courts and the different laws of sovereignty when it
comes to relationships or links in which one party is foreign? As a matter of fact
there are no international or universal rules that could settle this dispute a
uniform settlement that would be applied by all parties. Therefore it has become
commonly accepted that each state would independently draw the rules that it
deems proper for the settlement of such a dispute. These rules are what is now
known as private International Law. Needless to say that claiming that these
76
rules are international is a great transgression. For these rules are not uniformly
applied in all states so that they may be named international. For in reality they
are national laws enacted by each state independently and separately.
Consequently each state has its own private international law which is
different from the private international law of any other state. Therefore there
is the Egyptian private international law, the French private international law
and the English Private International law….etc.
It is worthy of mention that in finding a solution to the conflict of judicial
jurisdiction where one of the parties to a dispute is foreign, the rules of private
International law in a certain state are only applied to determine the extent of
jurisdiction of national courts. That is, these rules only decide whether the
national courts have a jurisdiction to consider the case or not. Thus if it decides
that the national courts have no jurisdiction these rules dos not decide which
foreign court or courts have the jurisdiction to consider the case.
If the dispute is related to the legislative jurisdiction and the conflict
between legislations of different sovereignties with regard to lawsuits where one
party is foreign, the situation would be different. For the rules of international
private law in every state try to choose from among those competing laws the
one that is to be applicable. The rules of the international private law which
seek to settle the conflict between laws to determine which one among them is
to be applied are known as the rules of referral. A name given to them because
of their nature. For these rules do not substantially settle the disputes related to
litigations where one party is foreign. But these rules only determine the law
from among the conflicting laws that should be applied. Thus the rules of
private international law do not settle the disputes where a party is foreign.
But they only determine the law to be applied and decide that it is this particular
law only that could settle the dispute. For example should an American residing
in Egypt pass away, and the rules of the Egyptian private International Law -
that is the Egyptian rules of referral - decide that it is the American law that
77
should be applied. Such a decision would not settle the dispute regarding the
inheritance of this deceased American. But the issue would be settled through
the application of the substantive rules of the American Law related to
inheritance and will.
Article 12 of the current civil law is an example of the Egyptian rules of referral.
For this article provides that the fundamental conditions relating to the validity
of marriage are governed by the (national) law of each of the two spouses.
Moreover article 15 of the same code provides that "Obligations as regards
payment of alimony to relatives are governed by the (national) law of the person
liable for such payment”, furthermore, the first paragraph of article 17 of the
same code provides that " Inheritance, wills and other dispositions taking effect
after death are governed by the (national) law of the deceased, the testator, or the
person disposing of the property at death".
Although private international law basically deals with the issues of
conflict of jurisdiction and conflict of laws, yet many jurists believe that issues
such as, nationality, the status of foreigners and citizens are also covered by this
law, on the basis that these additional issues are basic with regard to the two
fundamental issues. For the nationality of the parties to the legal relationship
should be known so as to determine whether the persons who are party to this
relationship are nationals or foreigners. Moreover the rights of foreigners must
also be known, - as they usually have less rights than the nationals - so as to
take these rights into consideration if they are a party to a dispute. And the
private international law settles the conflicts of legislation and jurisdiction.
This is also true of the domicile. For it is the domicile that determines the
judicial or legislative jurisdiction about those matters. The legal rules that
govern those additional issues are in agreement with the rules that govern the
two fundamental issues, in that they are national and not international rules. But
they are different in that they are substantive rules and not procedural or referral
rules.
78
Perhaps the fact that the rules of the private international law are based on
the premises that one party to the relationship is a foreigner, and that those
rules try to determine the law applicable to this relationship, is what makes
some jurists tend to consider it as part of the private law although its rules
pertaining to the settlement of the judicial conflict of laws and its rules
pertaining to nationality as well as some of its rules related to the status of
foreigners in a state are closely relevant to the rights of sovereignty in a state, a
matter which makes those rules of the public law.
In fact the diversity of issues governed and regulated by the private
international law - although many of such issues are considered intrusions on
the original law -, and the link between those issues and both the public and the
private laws alike, is what makes modern jurists consider it as a mixed law.
2-The Law of Civil and Commercial Procedures
In its broad sense this law is the body of legal rules that regulates the
judicial authority as regards the types of courts, their composition, their
jurisdiction, the appointment of the judges, the duties and rights of those judges,
and the procedures to be adopted for the initiation of civil and commercial
actions, court rulings with regard to such actions and the executions of the
judgements thereof. But in its narrow sense it is the law that deals with
procedural issues only. Thus in this respect it is a procedural law that is necessary
for the execution of the substantive rules of the civil and commercial laws.
Perhaps the differentiation in the meaning of this law, and the fact that its
scope ranges from the broad to the narrowest sense, is what caused this clear
differences among the jurists with regard to the nature of this law. As some
consider it to be part of the public law while others believe it to be part of the
private law.
But it seems that the issues that are included in its broad sense are so
linked and intertwined that they should not be separated, nor should that law be
taken in its narrow sense. It is for this reason that the law of civil and

79
commercial procedures seems a mixed law. For it is partly a public law as it
deals with the regulation and organization of the judicial authority, and it is
partly a private law as it deals with maintaining and protecting private rights.
The Application and Interpretation of Law (The Authorities Responsible
for the Application of the Law)

Introduction and Division:

We have seen earlier how legal rules are established and their various
sources. Once such legal rules are established then they should be applied to the
social relationships which they are originally intended to regulate. The
implementation and application of the law is the jurisdiction of the various
degrees of courts constituting the judicial authority. The law may be obscure or
not clear and requires explanation and interpretation so that its rules regarding
disputes brought to court may be understood. In principle it is the judge who is
authorized to interpret the law, as it is he who shall apply it. But in so doing he
may rely on jurisprudence as well as on the legislator sometimes.

Hence we shall deal here with three basic issues. First the authority that is
in charge of applying the law. Second the scope of application of the law, And
Third the interpretation of the law.

Each shall be dealt with separately.

The Authority Responsible For The Application of The Law And The
Safeguards of The Judges.

The current Egyptian Constitution allocates to the judicial authority -

which is and independent authority of the state, the responsibility of
implementation and application of the law. The judicial authority is made up
of the various kinds and degrees of courts. Court rulings are passed and executed
in the name of the people as provided for by article 100 of The Constitution.
As the judicial authority plays a major role in settling disputes between
80
individuals, or between individuals on the one hand and the public
administration on the other its, members had to have full safeguards so that they
may be able to establish justice in full and in its most appropriate form. In so
doing they are subject to no power but that of their conscience and the law.
These safeguards have been provided for in article 168 of The Constitution
which states that "judges shall be independent and subject to no power or
authority in their judgments but that of the law". This Article added that "judges
may not be dismissed and their accountability for disciplinary matters shall be
regulated by the law". Moreover for the litigants to have full confidence in the
judges and in their court rulings, Article 169 provides that the sittings of the
courts shall be public, unless the court decides otherwise for considerations of
public order or morals. In all cases the pronouncement of the ruling shall be in
public.

The court system in Egypt

Due to the political, historical and religious circumstances of Egypt, over

time several courts were established. There were The Mixed Tribunals to
consider disputes where foreigners were parties to the litigations, and the
National Courts for settling disputes among the nationals. There were also the
Sharia Islamic Courts, and the other Religious Courts to settle disputes of
personal status. However in 1949 following the conclusion of the Montreux
Agreement concluded between Egypt and the countries whose nationals enjoyed
capitulations in Egypt, the Mixed Courts were annulled. Then in 1955 the
Sharia (Islamic courts) as well as the religious (melli) courts for other
religions in Egypt were also annulled. The law annulling them provided that the
litigations and disputes of personal statutes that were presented to them and
had not yet been settled by them, whether between nationals or foreigners, or
whether they were related to financial dealings or affairs of the personal status,

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would be referred to the ordinary courts that have been granted the jurisdiction to
consider all those cases as of that date.

The nature of the administrative life, and the relationships governed by

the public law have also necessitated the establishment of administrative courts
to settle disputes between one of them and an individual. Consequently two
types of courts exist today side-by-side, the Ordinary Courts and the
Administrative Courts in addition to the Supreme Constitutional Court
which is in charge of control over the constitutionality of the laws and their
regulations. We shall now deal in brief with those two types of courts as well
as with the Supreme Constitutional Court.

First: Ordinary courts

These courts have the jurisdiction to view all types of disputes with the
exception of those specified by the legislator to be settled by other courts by
virtue of a special law. These differ according to the nature of the disputes
which they view. For the Civil Courts view civil and commercial disputes as
well issues of the personal status. The Criminal Courts view criminal issues
referred to them by The Public Prosecution. The highest of all the ordinary
courts is The Court of Cassation.

In general the Egyptian legislator has provided two degrees of courts as a

safeguard guaranteeing justice. Thus a dispute is referred in the first instance to
a court of first degree.

Then again to a court of second degree to pass its ruling. Therefore if

there is an error with the ruling of the court of the first degree it would be
amended by the ruling of the court of the second degree. Particularly because
the judges in the courts of the second degree are more numerous and have a
longer experience than the judges of the courts of the first degree.
We shall briefly deal with the Civil Courts and Commercial Courts
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and Economic Courts, then with the Criminal Courts and finally with The
Court of Cassation.

A) The Civil Courts and Commercial Courts:

These courts are diverse, are of different degrees, and are located in
various regions all over Egypt. The lowest in degree are The District courts,
then the Courts of First Instance are higher, then The Courts of Appeal which
are even higher, then the highest of all is The Court of Cassation.

1-District Courts:

These are the lowest degree of courts and they consider all civil and
commercial law suits the value of which does not exceed fourty thousand
Egyptian pounds as provided for by Article 42 of the Law of Procedures of
1968 (as amended) as well as other law suits regardless of their value where the
legislator sought to bring the court closer to the litigants such as litigations
related to the use of water, the dredging of canals and drainage canals,
litigations pertaining to land boundaries, determination of distances, distribution
of common assets. etc.

Usually there is one such court, in each Markaz and in each district
of each governorate. These courts are viewing by a judge who solely passes
his rulings.

2-Courts of First Instance:

These courts are immediately higher than The District Courts and they
view all civil and commercial lawsuits that are not viewed by District Courts.
(Article 4 7) That is they view cases the value of which exceeds five forty-
thousand Egyptian pounds and with no maximum value, and their rulings are
passed by three judges.

In its capacity as a second-degree court of appeal it also considers

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challenges of court rulings issued by District Courts.

3-Courts of Appeal:

These are the courts of the second degree of the rulings passed by The
Courts of First Instance. For they view the appeals against their rulings, that
are passed by three justices.

B-Criminal Courts:

There are no specialized Criminal Courts that are separate from Civil
Courts. But it is the same above-mentioned Civil Courts that consider criminal
cases. Thus the district courts consider lawsuits that are contraventions and most
misdemeanors, and the courts of First Instance view the appeals referred to
them against rulings passed by the lower district courts. A Court of Appeal,
constituted as a Criminal Court decides felony cases.

C- The Court of Cassation:

This is the highest degree of ordinary courts, and its main function is to
supervise and ensure the proper application of the law by all ordinary courts of
all degrees. Hence it usually does not deal with the facts drawn by the lower trial
judge in the case presented to him. But it accepts such facts as stated in the
lower court’s ruling that is being challenged, and it only decides whether the trial
judge has properly applied the law to these facts or not. If it finds that he has
properly applied the law then it would reject the challenge. But should it find that
he has not, then it would normally refer the case once more to the same court
that has passed the ruling to view it once again, in which case it would be
viewed by another circuit where none of the judges who were part of the first
ruling are present. And this new circuit would be obliged to follow the opinion
of The Court of Cassation with regard to the application of the law as mentioned

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earlier.

As The Court of Cassation normally examines the proper application of

the law to the facts and does not examine the validity of the facts themselves,
that were viewed by the lower court but accepts them as they have been
mentioned in the case subject of the challenge, therefore it has come to be known
as the “Court of Law”, contrary to all other courts that are known as “courts
of substance” as they deal with the facts of the case before applying the law
to them.

The Egyptian Court of Cassation was established in 1931 and it is located

in Cairo.

It is worthy of mention that The Court of Cassation is not considered a

court of third degree. For when we say that litigation is considered at two levels
of courts, then this means that the court at every degree has considered both
the facts and the application of the law related to them. But as The Court of
Cassation only considers the law and whether it was properly applied or not
and normally does not consider facts, therefore it is not considered a degree
a third level of courts because it only ensures that the courts of a lesser degree
have properly applied the law.

There is no doubt that the existence of The Court of Cassation at the top
of the hierarchy of ordinary courts ensures the uniformity and stability of the
courts, and avoids discrepancies of court rulings vis a vis the same issues. This
naturally leads to enhancing confidence in the law, a matter which prompts and
encourages the public to respect it.

D-The Economic Courts:

Law no. 120 of 2008 instituted Economic courts that are composed of first instance

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and appeals chambers and that exclusively view the criminal actions relating to
the contravention of specific economic Laws as detailed in Law no 120 of 2008
and that and also view the civil actions whose value is less than 5 million Egyptian
pounds relating to other specific economic Laws as detailed in this law and the
challenge of the ruling of the economic courts before the court of cassation is
restricted as detailed in the law.

Second: Administrative Courts:

Egypt did not know Administrative Courts as an independent judicial

entity except in 1946 when The Egyptian Council of State was established
along the same lines as the French Council of State. The law establishing it
provided that one of its departments would be responsible for the administrative
courts. This type of courts only deals with one specific type of disputes namely,
the administrative ones. That is, the disputes in which the administration in its
capacity as a public authority is a part. Such as the disputes related to salaries,
pensions, remunerations to employees and public servants as well as challenges
of administrative decisions, disciplinary disputes and other similar issues are
determined by the law. The administrative courts department of The Council
of State is made up of four kinds of courts and the jurisdiction of each is provided
for by the law. They are The Supreme Administrative Court which is the
highest, and it plays for the administrative courts the same role played by The
Court of Cassation for ordinary courts and the lower courts, being The Court
of Administrative Jurisprudence then The Administrative Courts and the
Disciplinary Courts.

The Administrative Courts may revoke decisions issued by an

administrative authority if they are proved illegal. They are also authorized to
suspend the implementation of those decisions during the period in which they

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are being considered by the court. That is from the time the legal action is
initiated and until a court’s ruling is passed. Moreover it is also authorized to
rule upon damages if any.

Finally it is worthy of mention that The Administrative Courts

represent the mainstay of The Council of State, together with the Department
for Legal Opinions and legislation and the authority for State Commissioners
that prepare the cases.
The Jurisdiction of each of those Departments is provided for by the law.

Third: The Supreme Constitutional Court:

On August 31 – 1969 the Decree Law No. 81 for 1969 was enacted
establishing a court by the name of The Supreme Court to be solely and
exclusively responsible for determining the constitutionality of the laws and
regulations in addition to performing the other tasks provided in the law. The
Courts name was later changed to the Supreme Constitutional Court and the 2014
Constitution confirmed that this Court shall be exclusively and solely
responsible for the judicial control of all laws and regulations, for interpreting
legislations, and for performing other functions provided for by the law, such as
settling conflicts of jurisdiction between the different judicial bodies, as well
as disputes arising from the execution of the court’s final rulings.

This Supreme Constitutional Court is the highest judiciary body in

Egypt and as previously mentioned. Its main task is to control the
constitutionality of laws and regulations, and to interpret them as provided for
in the law establishing it. It performs its function of constitutional control
through a legal action presented to it called "a constitutional action". The
court rulings of this court in such a constitutional action is conclusive and may
not in any way be challenged (Article 48 of the law of The Supreme
Constitutional Court). It is likewise applicable to all, and not only to the entity

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that challenged the constitutionality of the law. Moreover, the court rulings of
this Supreme Constitutional Court are binding to all authorities in the State.
Furthermore its ruling are of such great importance that they have to be published
in the official gazette. Such publication should be effected within a maximum
of fifteen days from the date of its pronouncement.
It is also worthy of mention that the interpretation of any law given by
this Supreme Constitutional Court is binding to all courts and the
interpretation is published in the official gazette as well.
And this court is located in Cairo.

Persons

Definition and Kinds of Persons:

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Definition:

From the legal aspect a person is any creature that is capable of having a
right or obliged to perform a duty.
The legal personality is the quality which is granted to every creature who
has a will and is qualified to have one right however simple it may be. This
quality is indivisible. It either exists in full or does not exist at all depending on
whether the person who is to bear this qualification, is either qualified to have a
right however simple it may be or is not.
There are two types of legal persons:
Natural persons and juristic persons
Natural Persons:

Definition:
A natural person is the human being. For before the law a person must be
a willful creature having at least one recognized right. And such a qualification
only pertains to human beings and not to animals or lifeless objects which have
neither a will nor a right.
Although there may be some laws that prohibit the hunting of certain
birds or animals or the catching of certain fish or the cutting of certain trees, or
that forbid the use of violence against animals particularly beasts of burden,
these laws granting certain protection to some animals or trees may in no way
be interpreted as to grant these beasts of burden or birds or trees a right, or that
these laws grant a certain right of life to those kinds of fish or birds or animals
or trees. For in such prohibition the laws only seek to maintain the interests of
man not of beasts or of lifeless objects.
In the past some people used to enslave others. Hence a slave had no
rights and was the property of his master just like any other property of that
master be it a lifeless object or an animal. The master even had the right to give
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life to his slave or to deprive him of it. During that era of slavery a slave had no
legal status.
But this system of slavery developed and the rights of a slave to live, to
have a wife and to enjoy a limited margin of freedom as well as to have certain
types of property were recognized. Once the first of such rights was
acknowledged a slave become a legal person, and since the abolishment of
slavery, all people become legal persons even the young person devoid of
discretion or the feeble minded person although none of them has a will of his
own.
Commencement of the personality (legal status): Man's personality
commences at his birth. That is at the moment that he becomes separate from
his mother. For prior to his birth he is considered part of his mother and hence
has no legal personality (legal status).
The French code provides that for the personality of a new born to be
established, he has (1) to be born alive and this is established by a new born's
ability to breath fully and (2) to be viable, that is, he has all the organs that
make him capable of living.
Thus should a newborn not meet these two conditions then he would
never have a legal personality (legal status) and would not be legally recognized
as having any existence in the first place.
Islamic law (Sharia) is different in this respect. For it only requires that a
newborn be born alive to have a recognized personality (legal status) regardless
of his viability.
The Civil Law has adopted this same idea as para 1 of article 29 provides
that "legal personality commences from the time a child is born alive." that is
from the moment he is separated alive from his mother.
The life of a newborn is established when visible signs of life are
categorically manifested. Such as crying, weeping and inhaling. Should these
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signs not be confirmed, then the judge may refer to a medical examiner to
establish that the newborn was for a certainty born alive.
Para 1 of article 30 of the Civil Law states that birth is established by
means of an official certificate obtained from an official register of birth and
death.
The Status of A Fetus:
In principle a fetus in not a person so long as he has not been born. But in
certain cases it may be in the interest of such a fetus to be recognized as a
person, so that it may inherit from its father for example, or benefit from a
legacy due to it before it is born. Hence the law in such cases considers a fetus
as a person on the grounds of what it will be so in the future. Thus the law
considers it as existing from the time it is conceived. Therefore it would be
entitled to the rights that are due to it in an inheritance resulting from of the
death of a relative or as a legacy.
However this existence of the fetus, which is acknowledged by the law, is
only nominal and conditional upon the actual birth of the newborn alive. Should
such a condition be fulfilled then the legal personality (status) of a fetus would
be asserted since the day it is conceived. But should such condition not be
fulfilled and the newborn is still born, then its nominal status would be
invalidated and this dead new born would be considered as if it had never
existed.
During pregnancy, and as no one knows whether this fetus shall be born
alive or dead, it is temporarily presumed that it shall be born alive and hence it
would be included among the inheritors or the beneficiaries of a legacy. It is
also usually presumed that it shall be a boy if it is in its interest to be a boy, and
its share in the inheritance or legacy would be kept aside until its birth. Should it
be born alive then it would receive its due share and other beneficiaries would
receive their share as well. But should it be still born (dead) then the other
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beneficiaries would get their full dues, as this dead new born would be
considered as having never existed (Articles 42 and 43 of law No. 77 for 1943
regarding inheritance).
End of a Legal Personality (Status):
An individual's legal personality ends with his death as provided for in
para. 1 of article 29 of the Civil Law. This is the natural end of the legal
personality (status). However in old laws such a legal personality (status) also
came to on end if a person became enslaved.
The legal personality (status) of a deceased person continues nominally
until his inheritance is settled or his liabilities are paid. As in Sharia (Islamic
Law) legacies may not be settled except after the settlement of the debts of the
deceased. During the period from his death and until this settlement is effected
his property, absorbed by debt, would remain to be considered as his. Therefore
should the inheritors dispose of any of it they would be disposing of the
property of others, and such an act would be illegal and would not deprive the
debtors of their rights.
The Civil Law has adopted the same stand of the Sharia (Islamic Law).
For it provides in its article 899 that the residue of the property of the estate,
after settlement of its liabilities, devolves on the heirs in proportion to their
shares in the inheritance". This means that the Civil Law considers that the
property of a deceased remains his until all his liabilities are settled. The Civil
Law further provides for the system of distribution of an inheritance so as to
avoid the harm that may result in the delay of such distribution (Articles 875 to
913) of the Civil Law.
Death is proven, in the same manner as birth, through a certificate from
the Register of Birth and Death.

Juristic Persons:

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What Is A Juristic Person and What Are The Kinds of Juristic Persons:
1- Definition: If we can say that any human being in his capacity as a human
being is a legal person, however the reverse is not true. That is, not every legal
person is a human being. For there are legal persons who are made up of a
group of persons such as associations, companies or groups of assets such as
institutions.
This kind of persons is different from the natural persons - who live a
natural life, whose will is derived from this natural life- because they have a
different juristic kind of life. This is why these are called juristic persons to
differentiate them from natural persons.
2-The Idea of A Juristic Person And Its Benefits:
The idea of a juristic person is as old as the golden age of the Roman law.
For since that time the idea of a juristic person was recognized for the state, for
cities and for many associations. With the spread of Christianity again this same
concept was acknowledged. For many of the institutions that were established
under the auspices of the church such as monasteries, hospitals and orphanages
were recognized as juristic persons. Then the idea of a juristic person was
adopted by other laws that succeeded the Roman law and were derived from it.
It continued to develop until it reached us in modem times.
A review of the history of the idea of a juristic person reveals that
countries were obliged under certain circumstances to recognize in varying
degrees the concept of a juristic person in accordance with their political
inclinations and circumstances, a matter which indicates that the idea of a
juristic person is necessary for any community once it passes to the first phase
of its development and progress. For as man develops he conceives ideas that
cannot be fulfilled through the efforts of one man even if he devotes all his life
to it. Consequently man felt that he had to join forces with others or even with
successive generations so that he may be able to achieve that which cannot be
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achieved by one man and in one generation. To attain this objective man had to
establish, - in collaboration with others -, associations where all the efforts of
individuals would be joined and channeled towards fulfilling that end. As those
associations need financing to attain their objectives, their rights have to be
acknowledged. They have to be accepted in civil life and there has to be means
of dealing with them or suing them if necessary. None of this is conceivable
unless they are recognized and acknowledged as juristic persons, and unless
the idea of the existence of juristic persons together with natural persons is
accepted.
The concept of the juristic person was one of the major elements that
helped humanity at large to progress until it reached this advanced stage which
we are now witnessing. For huge projects and sublime objectives that could
never have been realized by one man's effort, no matter how great, have been
attained through those juristic persons. This is so very true that it may now be
truly stated that the idea and concept of a juristic person is one of the mainstays
of modern civilization.
Definition And Kinds of Juristic Persons:
Article 52 of the Civil Law provides that juristic persons are:
1- The state, the provinces, the towns and villages in accordance with the
provisions fixed by law, and administrations, departments and other public
institutions to which the law has granted the status of juristic person.
2- Religious groups and communities which the state has recognized as juristic
persons.
3- Wakfs (endowments).
4- Commercial and civil companies.
5- Associations and foundations created in accordance with the
subsequent provisions.
6- Any group of persons or properties recognized as juristic persons by virtue

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 of a provision of law.
It is noticeable that this definition is exclusive of all other entities. For it
included all the kinds of juristic persons that were known at the time of the
enactment of the law. Attention has to be called here to the fact that the
legislator may grant this characterization to any other group or property that
may come to being in the future if he deems this necessary.
There are two types of juristic persons. Public juristic persons and
private juristic persons.
I- Public Juristic Persons:
Public juristic persons are bodies whose function is to serve the interests
of all the community or part thereof, on the basis that those interests fall within
the jurisdiction of public authorities.
On top of all those public juristic persons is the State which is responsible
for safeguarding the interests of the whole nation. Together with the State there are
other local bodies that may have their own interests other than the common
interests of the nation, such as Governorates, cities, towns and villages which are
also considered public juristic persons.

There are other bodies which those public juristic persons turn to in
order to help them fulfill their tasks by assigning to one of them a utility which
falls within their sphere of competence, and authorizing it to administer and
manage it for them. In so doing a public juristic person grants an autonomy to
such a body and allocates a special budget for it. Thus by virtue of the law these
are considered legal persons. These bodies are public establishments but at the
same time they are also public juristic persons. Examples of such public
juristic persons are the Cairo University, the Alexandria University, Al Azhar
University, and others.

The Commencement and Termination of a Public Juristic Person:

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 Public juristic persons derive their status from the law that established
them and recognized them as juristic persons. This is the case with
Governorates, cities, villages, and public establishments. But the State being the
central authority derives its status from the nature of its existence, from tradition
and from custom.
The character of the State as a juristic person does not terminate so long
as its components continue. But the status of other public juristic persons may
be terminated by a law just as they were established by virtue of a law.
II- Private Juristic Persons:
Private juristic persons are those juristic persons which perform
activities that may be conducted by individuals or by the state in its capacity as
an ordinary person not as the public authority.
According to article 52 of the Civil Code private juristic persons include
associations and companies which are groups of individuals, foundations and
wakfs which are groups of property.

Characteristics of Persons:
Each person whether he is a natural or a juristic person has a legal
capacity a patrimony (propriety right) a domicile and a name.
Articles 33 to 51 of The Civil Law define these characteristics, and
article 53 provides that "a juristic person enjoys all rights except for those that
that are inherent in the natural person, and within the limits established by law.
It has: a) an independent patrimony (propriety rights) b) a legal capacity within
the limits fixed by its constitution or established by law c) the right to sue d) a
domicile and a representative to express its will.
No definition of persons could be complete without the examination of
these characteristics which we shall deal with separately.
The Legal Capacity:
Definition and Kinds:
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 Jurists define the legal capacity as the capability of a person to have
rights and duties and to exercise by himself the legal and judicial actions related
to these rights.
There are two types of legal capacities. (1) The capacity of enjoyment
and (2) The capacity to exercise.
The capacity of enjoyment of a right is a feature that makes a person
qualified to have a certain right and a certain duty.
The capacity of enjoyment is a feature that makes a person qualified to
exercise by himself a legal or a juridical action related to rights and duties
concerning this person.
The first kind looks at the rights and duties themselves as well as the legal
capacity of the person himself to be entitled to those rights and duties regardless
of the reasons establishing these rights or duties or how such rights and duties
were linked to this person.
Therefore the capacity of a certain person is examined to see whether he
is entitled to have the right to real estate or whether he has a duty towards his
creditors or whether he is entitled to hold public office or to take a spouse…etc
In the second type of legal capacity, that is the capacity to exercise, it is
not the rights and duties themselves that are being examined but the reasons that
establish these rights or transfer them or terminate them. Such as for example
the legal capacity of a certain person to become an owner. That is to exercise by
himself all actions related to this right of ownership such as selling, buying,
bartering, granting, bequeathing leasing, renting, loaning …etc

The personality and the capacity of enjoyment

One of the elements of the personality is its entitlement to enjoyment of
legal rights and duties.
Specifying the capacity of enjoyment:
The law specifies how a person may be entitled to a certain right. That is,
it is the law that determines, the entitlement of a person to every right and every
97
duty defining whether he is entitled to it or not.
Identification of entitlement to a right for natural persons differs from that
for juristic persons.

First: Specifying The Entitlement of Natural Persons To Enjoyment

Here a differentiation must be made between political rights and civil

rights.

With regard to political rights the law has defined the prerequisites for a

person to be entitled to each of these rights. For the law determines the
qualifications necessary for a person to become a public servant, to be eligible
for election …etc.

For example, the law provides that any Egyptian major above the age of
18 shall be (exclusively) entitled to hold public posts.
Thus any one who does not have these required qualifications for any of
these rights should not be entitled to enjoy this particular legal right. But he may
be entitled to enjoy another right.
But with regard to non-political rights whether they be public or private,
the issue is different. For every person is entitled to enjoy all such rights and
consequently to all duties emanating from them unless otherwise provided by
the law. The exception being that a person is not entitled to one or more of those
rights or duties.
Thus in application of this basic principle any one is entitled to be a
proprietor or a creditor or a beneficiary of a usufruct…etc or to be a debtor and
to bear all the obligations ensuing from the legal transactions that are carried out
by his representative within the limits of such representation, and to be
responsible for all the liabilities related to his property.
And Examples of exceptions to this rule include the following:
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 1- Foreigners have no entitlement or never had such an entitlement in certain
countries with regard to the right of ownership of real estate.
2- A fetus has no entitlement except to financial rights, and it has no
entitlement to any obligation except that which may result from the
management of its funds.
3- Persons who have been sentenced by court for a criminal penalty are not
entitled to be granted an official decoration or a medal.
4- Legislations in some countries consider that a youth who is not yet of a
certain age is not entitled to marry (Article 144 of the French Civil Code).
5- A murderer is not entitled to inherit from the person he has murdered.
Second: Specifying the Entitlement to Enjoyment of Juristic Persons:
Juristic persons are not entitled to enjoy any political or family rights.
But they are entitled to enjoy financial rights just as natural persons are unless
otherwise specified by the law.
However juristic persons live for generations. They manage to
accumulate huge wealth which in most cases they do not circulate. As this may
harm the national economy most legislations find it necessary to restrict the
financial entitlement of juristic persons, basically be virtue of a general
principle, which is specialization. Then it imposed other restrictions that are not
imposed on natural persons.
The principle of specialization restricts the entitlement of enjoyment of
juristic persons and keeps it only within the limits necessary for each to fulfill
the objective for which it was established. However it is noticeable that this
principle not only restricts the legal capacity to enjoy. In fact it also restricts
the capacity to exercise rights and the very activities of the juristic person
themselves. For example charity and scientific associations are not entitled to
possess any commodities for the purpose of trade. Nor are they entitled to
conduct commercial transactions. Nor are they allowed to engage in any political
activity. Therefore any act on the part of a juristic person that exceeds the scope
99
of its entitlement would be absolutely nul and void. The legislator may in such
case even provide for penalties to be enforced on the manager of a juristic person.
The Civil Law provides in para. 1 of its article 53 that “A juristic person
enjoys within the limits established by law, all rights with the exception of those
rights which are inherent in the natural person". This provision means that a
juristic person is definitely entitled to all rights with the exception of the
following:-
1- Rights which are inherent in the nature of the natural person such as the
right to take a spouse, the right of practicing patriarchal authority, the
right of provision for others, the right of inheritance.
2- Rights which by law juristic persons are deprived of. The law includes
certain provision that restrict the entitlement of enjoyment of juristic
persons. Some of these restrictions are in fact applications of the
principle of specialization while others are special restrictions.
An example of such restrictions are those provided for in para 1 of
article 57 of The Civil Law which provides that associations may own
immovables and enjoy other rights only in so far as it is necessary to do so for
the realization of the objects for which they were formed. However it is
noticeable that this provision does not apply to associations in two cases:
A) If the object of the association is solely charitable or educational or for the
purpose of scientific research (para 2 of article 57 of The Civil Law.
C) If the purpose of the association is the realization of a public interest and
it has been recognized as an institution of public utility by a decree
approving its constitution and exempting it from the restrictions as to its
legal capacity, laid down in article 57 of The Civil Law. (Article 79 of
The Civil Code).
The Legal Capacity to Exercise:
Actions Related to the Legal Capacity to Exercise:
As mentioned earlier the legal capacity to exercise is a quality in a
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person that makes him capable of exercising by himself a legal or a judicial
action related to a right or an obligation, to which this person enjoys a right of
entitlement. The legal capacity to exercise requires the existence of entitlement
to enjoy. But the reverse is not true. For the legal capacity to exercise is
essentially based on the legal capacity of enjoyment. Thus no person would be
qualified to exercise a legal action such as the conclusion of a sales contract or
the bequeathing of a grant unless he is entitled to the right of ownership of the
object of the sale contract or the grant, or has an obligation to bear the
consequences of such an action. A person may be entitled to enjoyment of a
certain right, but has no legal capacity to exercise the legal actions related to
this right.
The establishment of an entitlement of a person to enjoyment of a certain
right or obligation does not necessarily imply that he is capable of exercising all
the diversified and different legal actions related to it, or that he has no legal
capacity to exercise any of them. But he may have the legal capacity to exercise
some such rights and not all. Therefore the legal capacity of the person to
exercise a right must be examined in relation to each legal action separately. For
a person may have the legal capacity to conclude a lease contract but not a sales
contract, or he may have the legal capacity to conclude a sales contract but not
to bequeath a grant…etc.
As the legal capacity to exercise is the capability of a person to perform
the legal actions that result in acquiring rights or creating obligations or
transferring or termination of such rights and obligations, these actions have to
be clearly defined and divided.
Here we shall suffice by stating that rights and obligations are created
either by virtue of a law or by a willful action of a person.
In the first case rights and obligations are either created directly by law
without a person having to perform any action, such as in the case of
inheritance, where the inheritor gains as a result of the death of his testator. For
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here the inheritor acquires the ownership of the property that belonged to his
testator, or such as the provision directly enforced by the law on a rich person to
give to his poor relative, or such as the obligations of tax paying or military
service. Or they may be created indirectly by law, that is a person needs to
perform a certain physical act which is required by the law for him to the
acquire a right or bear an obligation, as is the case with a harmful action or a
useful action.
Thus regardless of whether the law was the direct or the indirect source of
rights and obligations, there is no need in this case to inquire whether a person
has a legal capacity to exercise or not, for it is sufficient to ensure that the
person is entitled by law to enjoy such rights and obligations.
But in cases where the creation of a right or an obligation is the result of a
willful act, which is called a legal action, such as the conclusion of contracts
and other similar actions a person must have the legal capacity to exercise such
a right. For a legal action is a reflection of a person's will to cause a legal effect,
which is in most cases to create a right or an obligation. Hence the legal
capacity to exercise is in essence the capacity of the will to cause this legal
effect. Thus the actions where the legal capacity to exercise is to be taken into
consideration are the legal actions or dispositions.
Moreover just as the law specifies entitlement to enjoyment to the different
rights, it also specifies the legal capacity to exercise for the various legal
actions.
Specifying The Legal Capacity to Exercise Rights for Natural Persons:
Legislations are agreed that issues pertaining to the legal capacity to
exercise a right are related to issues of the personal statutes, and in such cases
the law is applied personally and not regionally.
Article 11 of The Civil Law provides that the legal capacity of persons
is governed by the law of the State to which they belong. Thus if the person
concluding an agreement is a foreigner, then it is the law of his State that
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determines whether he has the legal capacity to do so or not. If he were an
Egyptian then it would be the Egyptian law that would determine such capacity.
Article 109 of the Civil Law provides that "Every person who has not
been declared by law to be under total or partial legal incapacity has the legal
capacity to conclude a contract". This means that every person in principle has
the legal capacity to exercise, unless he is declared by law to be under total or
partial legal incapacity. Article 48 of the Civil Law provides that "No one can
renounce his legal capacity or modify the rules related thereto, " And this means
that the rules of legal capacity are related to public order. Therefore any
agreement that violates them shall be null and void.
Articles 110 to 112 of the Civil Law provide for the legal capacity of a
human being throughout the different stages of his life, and those provisions are
derived from Sharia (Islamic law).
It may be deduced from all those provisions that they divide the legal
actions into three types, and the human being’s life into four phases.

The kinds of legal actions are:

1) Actions that are absolutely and totally beneficial. These are actions that
make those who perform them rich without having to pay anything in return.
Such as accepting a grant or a legacy or benefiting from a stipulation for the
benefit of a third party and those are known as enriching actions.
2) Actions that are absolutely and totally harmful. These are actions that
make those who perform them poor without getting anything in return such as
granting or bequeathing and those are known as donations.
3) Actions which may be beneficial or harmful. These are actions that
result in creating obligations and acquiring returns for those obligations. For at
times he gains and at others he loses. As is the case of selling or leasing or
entering into a partnership or exchanging…etc. These are known as actions of
disposal. If such actions were performed with the aim of investing the capital
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and disposing of its revenues, then they would be known as actions of
management. What matters here is the nature of the action in itself and whether
it creates obligations to one party only or to both parties.
The four phases of life are:
1- Before birth – A fetus.
2- From birth until the age of discretion, which is seven years calculated
according to the Gregorian calendar ( para 2 of article 45 and article 3 of The
Civil Law) (a boy devoid of discretion).
3- From the age of discretion (7 years) to the age of majority a person is a minor
possessing discretion. The Civil Law provides that the age of majority is
twenty one (21).
This phase includes three sub-phases. One before a minor reaches
the age of puberty. That is before the age of sixteen (16), The second from the
age of sixteen to the age of eighteen (18) and the last from the age of 18 to the
age of majority at twenty one (21).
3- The fourth phase is from the age of twenty one (21) until death.

It is on the basis of these two division that the legal capacity to exercise
of an individual is determined as follows:-
1- The fetus has no legal capacity to exercise at all.
2- A minor that is devoid of discretion likewise has absolutely no legal
capacity to exercise. But he has a guardian or custodian who exercises
this right on his behalf, and performs all the legal actions that are provided
for by the law. Should a minor who is lacking in discretion exercise
any legal action, then all these acts in law would be deemed void and would
have no legal effect as provided of in article 110 of The Civil Law.
3- A) A minor possessing discretion and under the age of sixteen has full
legal capacity to exercise with regard to enriching actions. Thus if he
accepts a donation or a grant, his actions would be valid. But he has
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 absolutely no legal capacity to exercise a right with regard to acts of
donations. Therefore should he give a donation or relieve his debtor of a
debt, then such disposition would be absolutely void, as provided for in
para 1 of Article 111 of The Civil Law. As regards actions, which may at
the same time be profitable or detrimental, a minor's legal capacity to
exercise, in this respect is deficient. According to para 2 of article 111 of
The Civil Code such an action is to be exercised by the guardian or
custodian on behalf of the minor. But should a minor perform it himself,
it would be relatively void. That is it could be annulled.

For a possible annulment of a legal action in this last case, it does not
necessarily have to result in inequity to the minor. However annulment cannot
be claimed if the act is validated by the minor upon attaining his majority or if it
is approved by his guardian or custodian or by the judge before the minor
reaches his majority. However for a validation by the custodian or guardian of
an act performed by a minor, it must not be of an extreme inequity to the minor
because the guardian or custodian are not allowed to dispose of the property of a
minor if such disposition is of extreme inequity.
B) A minor possessing discretion who has attained the age of sixteen (16) may -
in addition to the above mentioned legal capacity -, exercise the legal capacity
to receive his wages and to manage the money that he has earned as a result
of his work. He may not donate such money but he may invest it, and perform
all acts relevant to such investment, such as selling, buying, renting and
leasing. However obligations resulting from such action shall only be
binding within the limits of the property that he has earned from his work
and not to any other property that he may have.
C) A minor possessing discretion who has attained the age of eighteen(18) may
be authorized to take possession of his property in order to manage it, as
provided for in article 1 12 of The Civil Law. Thus he would have a wider
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 scope of legal capacity.
A minor so authorized to manage his property may also perform all acts
of maintenance necessary for safeguarding this property, shall also be included
within the scope of his management of his property all disposal actions
necessitated by this management, including the sale of agricultural yields and
the purchasing of agricultural requirements for his property.
He may not however engage in acts of trade or rent buildings or land for a
period exceeding one year without the permission of the court. He may also not
receive dues or pay debts except within the scope of the management of his
property.
He may not dispose of his net income except in so far as to cover his
expenses and the expenses of those whom he is legally required to provide for.
A minor so authorized shall have full legal capacity with regard to all
actions to which he has been authorized as well as to take legal actions related
thereof.

The patrimony
Definition

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 Basically patrimony may be defined as all present and future financial
rights or obligations of a person. This definition shows that patrimony is
exclusively restricted to financial rights and obligations and that it is made up of
two elements: -
1- An active element, which is relevant to a person's present as well as to his
future rights (Property Element).
2- A passive element which is relevant to a person's present as well as to his
future obligations (Debts Element).
It is noticeable that both the active and passive elements are made up of
two aspects, the present and the future.
Thus if a person has no financial rights or obligations at a certain time,
this does not mean that he has no patrimony. As one's patrimony is not
confined to the present, but it also includes the future which may bring financial
obligations or rights. It is like a container which holds the financial rights and
obligations. Thus if at a certain time this container is empty this does not negate
its ability to receive in the future any financial rights or obligations of their
owner so long as he is alive and has the legal capacity related to such rights and
obligation.
Moreover if a person assigns all his financial rights and obligations to
another, this assignment would only be relevant to his financial rights and
obligations at that time. Such an assignment does not make an assignor lose his
patrimony nor does it add to the assignee another patrimony together with his.
But this act of assignment would be like emptying the contents of the container
of the first into the container of the second.
Thus if we wish to give an accurate legal definition of patrimony we
would say that it is the legal capacity of a person to have financial rights and
obligations.
Domicile
General definition:

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 A domicile is a place to which a person is attached, that allows
considering that he is found in it at all times, so that any one wishing to have a
legal or a judicial relationship with that person may address him at this place,
and that person would be considered as having received that message even if he
does not know about it.
Thus according to this definition a domicile would be the seat of the legal
personality.
A domicile must be differentiated from a residence where a person lives.
For not every residence could be considered a domicile although usually they
are the same.

The Importance of the Domicile:

In principle any person may deal with others, exercise his rights and pay
his debts in any place where he may be. But the importance of the domicile is
manifested in many cases, the most relevant of which are:
1- In cases of the payment of debts. Article 347 of The Civil Law provides
that payment of debts is due at the debtors domicile.
2- In cases of legal notifications, they are to be served to the person himself
or at his domicile.
3- In cases of litigation, the court having jurisdiction would be the one
where the domicile of the defendant is located.
4- In cases of inheritance or bankruptcy, the court having jurisdiction would
be the one where the domicile of the deceased is located or where the
domicile of the bankrupt is located
5- Some other rights have to be performed in a certain domicile. A marriage
contract for example must be concluded before the Marriage Registrar
(Ma'zoon) where the bride's domicile is located. A divorce on the other
hand must be concluded before the Marriage Registrar (Ma'zoon) where
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 the husband's domicile is located.
6- Certain legislations, such as the Anglo Saxon, one provide that the
applicable law of personal statutes matters, is the law applicable in the
domicile of the person, and not as is the case in most legislations, in the
country of his nationality.

The General and The Special Domicile:

A general domicile is the place where all a person's dealings are
considered to be performed. In principle and in accordance with the law any
person is free to choose his general domicile. However the law obliges certain
persons to have a special domicile which would be considered the legal or
statutory domicile.
A special domicile is that place where a person performs a specific action
or a series of procedures such as the political domicile or the electoral domicile
where a person is considered to exercise his right to vote or a domicile where a
person exercises a trade or a profession. The elected domicile of a person is
the office of his lawyer where all correspondence related to the cases which this
lawyer is in charge of is to be addressed.
We shall deal first with the general chosen domicile of a person, then
with the general legal domicile, then finally with the most important kinds of
special domicile.
Determination of the General Domicile And Its Characteristics:
Legislations differ with regard to the method by which they determine the
general domicile, and whether there may be more than one domicile or not for
many reasons, the most important of which are the effects of such considerations
on a domicile.

In the Egyptian Civil Law the legislator adopted the realistic stand
adopted by Sharia (Islamic law). Hence a domicile is defined in para 1 of
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Article 40 of the Civil Law as the place where a person habitually resides. This
definition establishes that a very important element in defining the domicile is
the stable residence of a person in it. That is that a domicile is by definition the
place where a person actually resides and such residence is stable even if not
continuous.
Thus the stability of a residence does not necessarily require its continuity
or its extension for a certain period. Consequently a person's residence would be
stable in a certain place even if he resides in that place for half a month or half a
year and the rest of the month or year he resides in other places. Likewise a
person who moves his residence to another area would be considered as having
his domicile in this new area upon moving to it without necessarily having to
have spent a certain time in it. But if a person is used to spend every summer
season in a different place then his residence in those places would not be stable
and consequently does not make these places his domicile.
Therefore stable residence in a certain place is based on the person's
intention to settle permanently in this place. This intention may be inferred from
material circumstances.
Moreover if a person stably resides in more than one place, then he would have a
general domicile in all those places. Inversely if he resides in a certain place
and such residence is not stable then it would not be considered as his
domicile. This is provided for in para 2 of Article 40 of the Civil Law, which
states that "A person may have more than one domicile at the same time, as he
may have none. “Consequently one person may have a general domicile in
every area that he resides in with the intention to settle in. Therefore according
to the Egyptian Civil Law a person may under certain circumstances have
several general domiciles, such as in the case of students who reside during
their academic years in places other than their original domiciles. A Farmer too
may have a domicile in a town and another in his farm. A husband who has
more than one wife, and has provided a home for each where he spends a few
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days, will have more than one general domicile. Moreover a person may not
have a domicile if he does not reside in any area in a stable manner, as is the
case with Bedouins.
Change Of Domicile:-
Thus it may be concluded that for a certain place to be considered a
general domicile for a certain person two conditions are required:-
1- That a person actually resides in this place.
2- That he has the intention of settling in it.
Should those two conditions exist with regard to a certain place then one
of these conditions ceases to exist, and the person no longer resides in this place
or if he changes his mind as to settling in it, then this place would no longer be
his domicile.
Should a person reside in a new place and intends to settle in it, then this
place too in addition to the old one would also be considered as his domicile.
He would not be considered as having changed his old domicile by a new one
unless he leaves the old domicile and no longer resides in it, or unless he has
decided not to settle in it.
Verifying the intention of settling in a certain place is a subjective issue
left to the discretion of the judge who should deduce it from the circumstances.
Should circumstances give third parties the impression that a certain person's
residence in a certain place is stable, then this place would be considered as his
domicile

The Legal Domicile:-

As stated earlier every person is free to choose the place to be his
domicile and to change this domicile at will.
Yet most legislations oblige certain people to have a certain domicile.
Either because of the deficiency of their legal capacity, or because of their jobs,
or for any other reason, in which case this domicile would be known as the
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legal or statutory domicile. Those people may not change their legal domicile
unless the reason for which this domicile was enforced on them by the legislator
changes. An Example of such a situation is provided for in the French Law which
states that "the domicile of minors and those who are under interdiction shall
be that of their guardian or custodians or trustee, and the domicile of a wife
shall be that of her husband (article 108 of the French civil code) and the
domicile of a permanent employee shall be in the place where he performs his
job (article 107 of the French civil code).
In Egypt, court rulings stated that Sharia (Islamic law) does not deny a wife
the right to have a domicile that is different from that of her husband, and
that a civil servant is not considered as inevitably residing in the place where he
works. However the first paragraph of article 42 of the Civil Law provides
that "the domicile of a minor, a person under interdiction, a missing person
or an absent person shall be that of his legal representative”. Consequently the
domicile of a minor shall be that of his father or guardian and the domicile of an
insane or madman or a prodigal or lunatic shall be with his guardian or custodian.
It is apparent then that this is an exception of the rule set forth by article 40 of the
Civil Law which considers that a person's domicile is the place where he usually
resides. For a minor or a person under interdiction may not reside in the domicile
of his guardian or custodian or trustee. But that

domicile of his guardian or custodian would be his domicile by law.

It is worthy of mention that according to the Egyptian Civil Law, the

legal or statutory domicile is an exception, and hence can not be applied unless
there is a provision for it. Consequently a wife or a civil servant shall not have a
statutory domicile, as is the case with the French law, because there is no
provision for it.
Types of Special Domicile :-
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 The most important types of special domicile, are the business domicile
and the elected domicile:-
A) The business domicile: Article 41 of The Civil Law provides
that "The place where a person exercises a trade or a profession
is considered as his domicile as regards matters carried out in
connection with such trade or profession".
It is evident that this provision adds to the general domicile of a
person another special domicile for his business, or trade. Hence a
merchant or a tradesman shall have a special domicile for his business or
trade where his clients may notify him in it of every thing related to it.
The merchant or tradesman must not necessarily be constantly residing in
this domicile. But it is sufficient for him to practice his trade in it and his
clients may notify him in it of everything that is related to this trade.
Otherwise and with regard to all other issues, only his general domicile
where he stably resides shall be taken into consideration.
It is also noticeable that this special domicile is only provided by
law, and is an exception to article 40 of the Civil Law. Hence it could
only apply to a person who is engaged in a business or trade, and it may
not be taken for granted that it applies to a public servant for example.

B) The Elected Domicile

That too is a special domicile which is established for a person

without having to reside in that place. It is established for a particular
legal action and all the procedures related to it. However it is not
established by law but upon the free choice of the person involved. This
is why it is called the elected domicile.
Article 43 of the Civil Law provides that a "special domicile may be
elected for the performance of a specific legal act" This is such a general
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provision that the choice of this elected domicile may be done through the
agreement of both parties or unilaterally.
In the first case, that is when it is chosen through the agreement of both
parties, it may not be changed or altered except upon the approval of both
parties.
In all cases the election of a domicile must be evidenced in writing as
provided for in Para 2 of article 43 of the Civil Law.
Moreover the fact that a person's elected domicile is chosen by his free
will does not negate another fact, namely that at times a person may be obliged
to elect a special domicile for a specific action before a specific judicial circuit.
For example a mortgage creditor is obliged by law to choose an elected domicile
in the same area of jurisdiction of the court where the mortgaged real estate is
located.
Para 3 of Article 43 of The Civil Law provides that once a person has
elected a special domicile for the performance of a specific legal act, it shall be
deemed to be the special domicile in so far as all matters related to this act,
including the procedures for enforced execution, unless the election of this
domicile is expressly limited to certain special acts, excluding others.
The Domicile Of Juristic Persons:-
A Juristic Person, just as a natural person must necessarily have a
domicile. The domicile of a Juristic Person is the place where its management
is located, because this place is the one where the central authority that controls
it is located .
As the activities of certain juristic persons may be extended to cover a
whole State, or even go beyond its borders, and in order to avoid obliging those
who may have dealings with those juristic persons to send them letters or
notifications or demands to their general domicile which may be quite far from
them, the French jurisprudence devised the theory of “principal stations”.
According to this principle every company would be considered as having an
implicit elected domicile in every location where it has established a branch of
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particular importance, or where it has established a legal representative. The
Egyptian legislator has adopted this theory as well. For Para 2 Article 52 of the
Law of Civil and Commercial Procedures provides that a legal action against
a branch of a company or association or institution may be filed before the court
which has jurisdiction over the area where this branch of the company, or
association or institution is located. It must be noted that this location shall be
deemed the special and not the general domicile for matters related to the
business of this branch.
As for the State of Egypt, which is a Juristic person, though its capital,
or location of its central management is in Cairo, yet legal actions may be filed
against it before courts in places other than Cairo, but those are exclusively
specified courts.

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