Tanzimat in Egypt—the penal code

Gabriel Baer

doi:10.1017/S0041977X00074255

Tanzimat in Egypt—the penal code

Published online by Cambridge University Press: 24 December 2009

Gabriel Baer

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In the new activity of qānūn-making at the beginning of the nineteenth century, Egypt preceded Turkey, especially with regard to criminal law. Although Egypt was still part of the Ottoman Empire, Muḥammad ‘Alī framed new laws based on Egyptian conditions and valid in Egypt only, while the Ottoman laws of the Tanzimat did not come into force in Egypt before Sa‘īd's days. The purpose of this paper is to trace the development of Egyptian penal laws in the nineteenth century, to analyse their relation to Ottoman laws, and to relate the story of the Ottoman Sultan's attempt to introduce into Egypt ‘the Tanzimat’—meaning mainly the Ottoman penal code.

Type: Articles
Information: Bulletin of the School of Oriental and African Studies , Volume 26 , Issue 1 , February 1963 , pp. 29 - 49

DOI: https://doi.org/10.1017/S0041977X00074255 [Opens in a new window]
Copyright: Copyright © School of Oriental and African Studies, University of London 1963

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^{page 29 note 1} For extensive quotations from these instructions see Rivlin, Helen, The agricultural policy of Muḥammad ‘Alī in Egypt, Cambridge, Mass., 1961, 89–101, 139, 167, 192–4, 241–2CrossRef Google Scholar. In Ottoman use lā'iḥa was a draft law; in Egypt it acquired, inthe nineteenth century, the meaningof law in general.

^{page 29 note 2} See Jallād, Fīlīb, Qāmūs al-idāra wa ’l-qaḍā’, Alexandria, 1890, III, 351Google Scholar. The most important differences between the lā'iḥa and the qānūn were the following: hard labour in Alexandria harbour as punishment for some offences was replaced by banishment to the penal settlement Fayzoğlu (Fāzūghlī) in the Sudan; in some cases 100 strokes of the kurbāj were augmented to 200, and 200–300 to 500; a small number of clauses was omitted; and in some others the provision for making inquiries before inflicting punishment was added. It should be noted that a few provisions for punishment of village shaykhs and other officials scattered over the lā'iḥa on pp. 40, 41, 45, 47, and 54, were not included in the qānūn al-filāḥa.

^{page 30 note 1} Jallād, III, 357. Siyāsa, in connexion with penal law (as against its meaning of politics), apparently had in Egypt a more comprehensive meaning than the Ottoman siyaset, which included only severe corporal and capital punishment—see Heyd, U., Ottoman documents on Palestine, Oxford, 1960. 59Google Scholar.Cf. also Gibb, H. A. R. and Bowen, H., Islamic society and the West, I, Pt. 2, London, 1957, 119Google Scholar.

^{page 30 note 2} It is interesting to note that when an official committed murder the dīya (blood-money) was accepted, while when an official was killed and his murderers known they were put to death without asking the official's relatives whether they accepted blood-money. See Jallād, III, 353–4, 357 (articles 26 and 60). See below for later development.

^{page 30 note 3} Recueil de firmans impériaux ottomans addressés aux Valis et aux Khédives d'Egypte, Cairo, 1934, 219Google Scholar.

^{page 30 note 4} Ibid., 224–6.

^{page 30 note 5} See Lewis, Bernard, The emergence of modern Turkey, London, 1961, 107Google Scholar. For text see Lûtfi, Ahmed, Mirat-i adalet, Istanbul, 1304/1886–7, 127–46Google Scholar. I am greatly indebted to my friend and colleague Professor Uriel Heyd for having drawn my attention to this text, as well as for advice and help with a number of problemsand Turkish texts in connexion with this paper.

^{page 30 note 6} Recueil de firmans, 233–4.

^{page 30 note 7} ‘Abbas to Grand Vezir, 23 January 1852, inclosure inCanning to Granville, 18 February 1852, Public Record Office, F.O. 78/890.

^{page 31 note 1} A special administrative court established on 3 Muḥarram 1258 (14 February 1842). See Deny, Jean, Sommaire des archives turques du Caire, Cairo, 1930, 121–2Google Scholar.

^{page 31 note 2} cf. Jallād, 353 (article 16) with 371–2 (arts. 156 and 165).

^{page 31 note 3} The booklet has no cover-title. At the head of the first page: ‘fihrist qānūn al-muntakhabāt’. At the end: ‘kamula ṭab‘tarjamat al-qānūn al-muntakhab al-jadīd fī ghurrat Muḥarram al-ḥarām iftitāḥ sanat 1261…’.The booklet has 20 + 115 pages. The articles are arranged in running numbers from 1 to 203. The qānūn al-muntakhabāt has been reprinted in fullby Jallād, op. cit., 351–78.

^{page 31 note 4} For the manuscript of a French translation see F.O. 141/96. Except for a few articles which he omitted (146–51, 165, 167, 170–1, 187–8, and 201–3 of the Arabic original), the translator rendered each article separately, but in some places he gave a shortened and summarized version only.

^{page 32 note 1} Sāmī, Amīn, Taqwīm al-Nīl, II, Cairo, 1928,535–6Google Scholar.

^{page 32 note 2} Qānūn al-shafālik, Būlāq, Ṣafar 1259 (March 1843). The main delicts dealt with in this law were neglect, theft, and embezzlement; the penalties were the bastinado, dismissal from office, imprisonment, and hard labour.

^{page 32 note 3} Sāmī, III, Pt. 1, Cairo, 1936, 22. According to Sāmī it was published in the colloquial language. I have not seen the Arabic original and in the following the French translation (see below) has been used.

^{page 32 note 4} For the manuscript of a French translation see F.O. 141/95. There are small differences of arrangement between the Arabic original as described in detail by Sami and the French translation, and a difference of 2 in the number of articles.

^{page 32 note 5} For text see Lûtfi, op. cit., 150–76.

^{page 33 note 1} Canning to Palmerston, 20 February 1851, F.O. 78/853.

^{page 33 note 2} Ibid., sameto same, 19 March 1851.

^{page 33 note 3} Canning to Murray, 20 March 1851, F.O. 78/853. For Murray's correspondence with Palmerston see F.O. 78/875, passim.

^{page 34 note 1} See Memorandum by Edhem Pasha and Hayreddin Pasha, inclosure in Canning to Palmerston, 18 June 1851, F.O. 78/856.

^{page 34 note 2} Hekekyan Papers, British Museum Add. 37452, fols. 5b–7a (written between 22 and 26 February 1851). It appears, however, from rumours mentioned by Hekekyan, that Egyptian officials at that time had not yet a clear idea what ‘the introduction of the Tanzimat into Egypt’ really meant. See Ibid., fol. 8b.

^{page 34 note 3} Inclosure in Murray to Palmerston, 24 March 1851, F.O. 78/875.

^{page 34 note 4} ‘Abbās to Grand Vezir, 23 January 1852, inclosure inCanning to Granville, 18 February 1852, F.O. 78/890.

^{page 34 note 5} Murray to Canning, 1 May 1851, F.O. 78/875.

^{page 34 note 6} Inclosure in Canning to Palmerston, 4 April 1851; see also Canning to Murray, 3 April 1851, F.O. 78/854.

^{page 35 note 1} Translation of letter from ‘Abbās Pasha to the Grand Vezir dated 12 May 1851, inclosure in Canning to Palmerston, 4 June 1851, F.O. 78/856. Edhem Pasha was ‘Abbās's Minister of Commerce and Hayreddin Pasha his Director of Transit (i.e. of communications between Cairo and Suez).

^{page 35 note 2} For text of the note see inclosure in Canning to Palmerston, 18 June 1851, F.O. 78/856.

^{page 35 note 3} e.g. embezzlement of state funds: kanun-i cedid, III, 2; Muntakhab, 56, 64&3x2013;5; ‘Code d'Abbas’, 65. Also: sedition and rebellion against the government (kanun-i cedid, I, 5–6; Muntakhab and ‘Code d'Abbas’, 29)—see letter from ‘Abbās to the Egyptian commissioners, 17 Sha‘bān 1267 (17 June 1851), loose leaf (in Turkish), F.O. 141/96.

^{page 35 note 4} ‘Abbās to Egyptian commissioners, 17 June 1851, Ibid.

^{page 35 note 5} Canning to Palmerston, 18 June and 4 July 1851, F.O. 78/856.

^{page 36 note 1} Inclosure in Canning to Murray, 26 June 1851—inclosed in Canning to Palmerston, 4 July 1851, Ibid.

^{page 36 note 2} Generally speaking, the Egyptian argument that there were Beduin tribes in Egypt was of course ridiculous, since the problem of unruly nomads was much more difficult in other parts of the Empire. But the years of ‘Abbās's rule were a period of acute unrest in Egypt, and this may explain, to a certain extent, the Egyptian apprehensiveness.

^{page 36 note 3} Canning to Palmerston, 4 September 1851, F.O. 78/858. For details on the railway affair see Rivlin, Helen, ‘The railway question in the Ottoman-Egyptian crisis of 1850–1852’, Middle East Journal, XV, 4, 1961, 365Google Scholar–88.

^{page 36 note 4} Canning to Palmerston, 15, 17, and 24 October 1851, and 4 November 1851 (inclosing text of firman), F.O. 78/858. For text of firman see also Recueil de firmans, 255–6; Rivlin, , MEJ, xv, 4, 1961, 377Google Scholar–8.

^{page 36 note 5} See note by ‘Abd al-Raḥman Rushdī (secretary of the Egyptian mission) to Canning, 5 December 1851, inclosure in Canning to Palmerston, 6 December 1851, F.O. 78/861. For details of the modified code see below.

⁶Ibid.

^{page 37 note 1} Canning to Pisani, 14 December 1851, F.O. 78/861. For an earlier suggestion by Canning in the same spirit see Canning to Murray, inclosure in Canning to Palmerston, 4 July 1851, F.O. 78/856.

^{page 37 note 2} Canning to Palmerston, 31 December 1851, F.O. 78/861.

^{page 37 note 3} Canning to Granville, 18 and 26 February 1852, F.O. 78/890.

^{page 37 note 4} Canning to Malmesbury, 12 March 1852, F.O. 78/891; 4, 5, 6, and 12 May 1852, F.O. 78/892.

^{page 37 note 5} De Redcliffe to Malmesbury, 17 June 1852, F.O. 78/892.

^{page 37 note 6} De Redcliffe to Malmesbury, 19 May 1852, F.O. 78/892; Bose to Gilbert, 6 July 1852, F.O. 78/893.

^{page 37 note 7} For a full French translation of the firman see inclosure in Rose to Malmesbury, 23 August 1852, F.O. 78/893. The shortened version in Recueil de firmans, 257, has a number of mistakes.

^{page 37 note 8} i.e., not according to the shari'a law of talion—for instance in cases of rebellion.

^{page 37 note 9} Rosen, G., Oeschichte der Türkei, II, Leipzig, 1867, 137Google Scholar.

^{page 38 note 1} Sāmī, in, Pt. 1, 79.

^{page 38 note 2} For Arabic text see Jallād, II, 90 ff. According to Kremer, Alfred von, Aegypten, Leipzig, 1863, II, 52Google Scholar–3, it was published on 5 Jumādā al-Ūlā 1271 (24 January 1855). I have not seen any other source giving the exact date. Since it was published in Arabic together with the hatt-i ṣerif of Gülhane, Jallād gives as its date 26 Sha‘bān 1255 (3 November 1839), which is of course absurd.

^{page 38 note 3} In Lûtfi's edition the third chapter has only 19 numbered articles, but this must be a printing error, since article 19 is exceptionally long and includes all the various subjects which are subdivided in the Egyptian version into articles 19–22.

^{page 38 note 4} Henceforth in short ‘Sa‘īd's Code’, or ‘the Tanzimat Code’. It has been connected with Sa‘īd's name because it was published in his reign, although it had been worked out under ‘Abbās. Similarly, the ‘Code d'Abbas’ had been composed in M. ‘Alī's time (see above).

^{page 38 note 5} Sic. We have seen that ‘Abbās and his negotiators had claimed that the opposite was the case, as a precedent for their demands. One may assume that they were right with regard to M. ‘Alī's rule.

^{page 39 note 1} It cannot be a printing error since the wording al-qaṭīl alladhī la walīya lahu walā wāritha appears twice in the note, and because in the opposite case a completely different formulation would have been necessary and something would have had to be said about theheirs' wishes. There can be no doubt that the firman granted the right to execute assassins whose victims had heirs without prior confirmation by the Sultan. First, this is confirmed by two independent translations, as well as by the Foreign Office records on Fuad's mission to Egypt. Moreover, it is logical, since in this case the wālī of Egypt acted as a quasi-agent of the victim's heirs. There is another grave error of translation in the Arabic version of ch. III, article 22.

^{page 39 note 2} Articles 1–13 and 14–18 appear in the same sequence as in the ‘Code d'Abbas’. Articles 19–27 have been taken directly from the qānūn al-filāḥa—they do not appear at all in the ‘Code d'Abbas’. The penalties stipulated in Sa‘īd's Code differ from those fixed in the original laws— see below.

^{page 39 note 3} See note from ‘Abd al-Raḥmān Rushdī, 5 December 1851, inclosure in Canning to Pahnerston, 6 December 1851, F.O. 78/861.

^{page 40 note 1} See above, p. 35, n. 2–3. In the following paragraphs, specification of the demands of the Egyptian commissioners refers to their memorandum mentioned in p. 35, n. 2.

^{page 40 note 2} A curious difference exists between the Egyptian and Ottoman versions of ch. III, art. 9, dealing with bribery. In the Ottoman law customary gifts (bazi teatisi mûtad olan hedaya-yi resmiye ve aleniye) or friendly presents without compensation (dostane itasi mesnun olan hedaya muhabbetten gayri garaz ve ivazdan âri…) are explicitly allowed. Apparently such gifts had been institutionalized in Turkey for centuries: see for instance Tschudi, R., Das Aṣafnâme des Luṭfî Pascha, Berlin, 1910Google Scholar, pp. (13). In Egypt apparently no such institution existed, and the second half of this article has been omitted in the Egyptian version of the code. This does not mean, of course, that no such gifts existed in Egypt, or that they were prohibited.

^{page 41 note 1} Muntakhab, arts. 24, 26–7; ‘Code d'Abbas’, arts. 11, 14, 47.

^{page 42 note 1} The following list is arranged according to the order of articles in the Muntakhab.

^{page 43 note 1} See Baer, Gabriel, A history of landovmership in modern Egypt, London, 1962, 7–9Google Scholar.

^{page 43 note 2} Von Kremer, op. cit., II, 52–3.

^{page 44 note 1} Nassau Senior, W., Conversations and journals in Egypt and Malta, London, 1882, I, 261Google Scholar–2, 294–5.

^{page 44 note 2} Von Kremer, op. cit., I, 256.

^{page 44 note 3} See, for instance, Bruce to Clarendon, 21 July 1856, F.O. 78/1222.

^{page 44 note 4} Sāmī, III, Pt. 1, 279–80.

^{page 44 note 5} Ibid., 375–6.

^{page 44 note 6} Von Kremer, II, 67.

^{page 44 note 7} ‘Sāmī, III, Pt. 2, 450.

^{page 45 note 1} Sāmī, III, Pt. 1, 296–7.

^{page 45 note 2} Ibid., 414. There can be no doubt that the Tanzimat Code of 1855 was meant.

^{page 45 note 3} See Lewis, op. cit., p. 116 and n. 79. The text used in the following is the translation of Bey, Aristarchi, Legislation ottomane, II, Constantinople, 1874Google Scholar, 212 ff.

^{page 45 note 4} Sāmī, II, Pt. 2, 499.

^{page 45 note 5} Ibid., 513.

^{page 45 note 6} Meanwhile, however, penal laws in Egypt underwent some changes. For instance, on 23 October 1865 Ismā‘īl ordered that crimes and offences of state officials should be tried in future according to French law. See Sāmī, in, Pt. 2, 624.

^{page 45 note 7} See Borg to Lascelles, 8 September 1879, F.O. 141/129. For text see Codes égyptiens, Cairo, Barbier et Cie., 1883, 427 ff.

^{page 45 note 8} See Aristarchi, op. cit., II, 268–73.

^{page 46 note 1} Again, one of the exceptions is the rule with regard to customary gifts (Ottoman code, art. 67), which does not exist in Egypt. See above, p. 40, n. 2.

^{page 46 note 2} See also Borg to Lascelles, loc. cit.

^{page 46 note 3} This, of course, solved the problem of punishment of revolt (see above). As in Turkey, revolt was now to be punished in Egypt too with death (Eg. code, arts. 83 ff.).

^{page 47 note 1} See Grandmoulin, J., Le droit pénal égyptien indigène, Cairo, 1908, 39Google Scholar–41; and, for text of the penal code of 1904, Wathelet, J. A. and Brunton, R. G., Codes égyptiens et lois usuelles en vigeur en Égypte, Bruxelles, 1919, I, 542Google Scholar (art. 7) and 574 (art. 216).

^{page 47 note 2} Borg to Lascelles, loc. cit.

^{page 47 note 3} See von Kremer, op. cit., II, 73.

^{page 47 note 4} Sāmī, III, Pt. 1, 118.

^{page 48 note 1} Sāmī, III, Pt. 1, 118–19, 131.

^{page 48 note 2} Ibid., 154; von Kremer, op. cit., II, 73; Senior, op. cit., II, 182.

^{page 48 note 3} See discourse by Ghālī, Buṭrus Pasha, Egyptian Foreign Minister, al-Qarārāt wa 'l-manshūrat ‘Official Records’, Būlāq, 1899, 189Google Scholar. Ghālī does not give the date of the quoted telegram which included the terms of this agreement, nor have I found it in other sources.

^{page 48 note 4} There seems to be no record of another agreement with new terms. Ghālī, the Foreign Minister, who would have been only too happy to cite such an agreement in order to prove his case (namely, that it was the Khedive's right to appoint the qāḍī of Cairo), just says: walākin al-ẓāhir annahu ṣara ta‘dīluhu…. See also the report by Ibrāhīm Fu'ād, Minister of Justice (quoted below), who does not mention the existence of another agreement, although he tries to prove the same case.

^{page 48 note 5} Sāmī, III, Pt. 3, 1294; Report by Ibrāhīm Fu'ād, Minister of Justice, on the Draft Decree on the Supreme Sharī’a Court, 7 May 1899, ‘Official Records’, 1899, 180.

^{page 48 note 6} For text see ‘Official Records’, I, 1876–80, 260–99.

^{page 49 note 1} cf. texts of firmans as translated in Eecueil de firmans, 318 and 330.

^{page 49 note 2} Ghālī, loc. cit., 187–8.

^{page 49 note 3} Ghālī's discourse and Fu’ād's report quoted above were published in connexion with this renewed discussion.

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