Definition and Characteristics of Law PDF

I. Definition of Law Preliminary Definition Law is defined as a body of rules regulating social relationships, with the state enforcing compliance, even through force if necessary. II. Characteristics of Law Law is identified by three core characteristics: 1. Law as a Rule:...

I. Definition of Law Preliminary Definition Law is defined as a body of rules regulating social relationships, with the state enforcing compliance, even through force if necessary. II. Characteristics of Law Law is identified by three core characteristics: 1. Law as a Rule: o General: Laws are not created for a specific person or event but apply universally to everyone within their scope. For example, a law mandating the payment of taxes applies to all taxpayers, not just one individual. ▪ A judicial order or administrative decision is not a law because it applies to specific situations or individuals, like ordering a person to pay money or closing a factory. o Regulatory: Laws are intended to create a system of order by applying consistently to similar situations. Legal rules are enacted consciously and deliberately by people, unlike natural laws (e.g., gravity), which exist independently of human action. ▪ Legal rules apply consistently and with intent. Violating a law brings about legal consequences because the individual knowingly chose to break the rule. 2. Law Regulates Social Relationships: o Law can only exist in a community of individuals. If there are no social relationships, there is no need for law. For 1  example, a person living alone (e.g., Robinson Crusoe) would have no need for law since there would be no one with whom to regulate interactions. o Law's role is to maintain order and ensure peaceful coexistence in society. A lawless society would result in chaos and conflict due to the lack of established norms. 3. Law is Linked with Penalties Enforced by the State: o Penalties are the core element distinguishing legal rules from moral or religious rules. While religion or morality may dictate behaviors, only law comes with enforced sanctions. These penalties could be criminal (like imprisonment) or civil (like forcing someone to pay debts). o The fear of penalties ensures compliance, but laws also gain respect because of their perceived necessity to preserve social order and allow progress. Over time, people may respect laws not out of fear of punishment but because they recognize their value in society. III. Necessity of Law Law is necessary to ensure the peaceful coexistence of individuals within a community. Without law, individuals would enjoy "absolute freedom," which could infringe upon others’ freedoms. This creates conflict. Laws thus help in balancing individual freedom with the collective need for harmony. Each individual can exercise their rights and freedoms to the extent that they do not harm or restrict the rights of others. Laws are vital for resolving conflicts, ensuring social cooperation, and preventing violence. They also help in addressing the complexities of modern society, where 2  relationships and interactions can be much more intricate than simple interpersonal exchanges. IV. Sources of Law The sources of law refer to the origins or foundations from which legal rules arise: 1. Formal Sources: o Legislation: Laws enacted by a formal authority, such as parliament or legislature. These rules are written, codified, and accessible to the public. o Custom: Long-established practices that have become recognized as legal norms. Customary law has its roots in the traditions and practices of a community that are seen as binding over time. 2. Informal Sources: o Jurisprudence (Legal Scholarship): The study and interpretation of law by scholars. While not law itself, legal opinions can influence how laws are interpreted or applied. o Court Precedents: Court decisions set a precedent that may be followed in future cases, influencing the development of the law over time. 3. Material Sources: o These refer to the societal, economic, geographical, and cultural conditions that give rise to the need for certain laws. For example, the growing complexity of commerce might lead to new laws regulating business practices. V. Comparison Between Custom and Legislation 3 The two main sources of law are custom and legislation. Both have their advantages and limitations. 1. Custom: o Advantages: It is flexible and adapts organically to the changing needs of the community. It reflects the lived experiences of the people it governs. o Disadvantages: It evolves slowly and lacks formal documentation, which can lead to confusion and inconsistency. Since custom is not written, disputes about its existence or interpretation may arise, leading to legal uncertainty. Furthermore, different regions may have conflicting customs, leading to fragmentation within a country. 2. Legislation: o Advantages: Legislation is clear, systematic, and provides uniformity across a country. It is drafted formally, ensuring precision and clarity. It is also easier to amend compared to custom and can quickly address new or emerging issues. o Disadvantages: Legislation may be disconnected from the lived realities of the people, especially if it is poorly drafted. It can also be slow to evolve in response to changes in society unless continually updated. VI. Legislation Definition: Legislation refers to the formal process through which laws are enacted by a competent authority, typically the legislature. It creates binding rules that govern the behavior of individuals and institutions. 4 Advantages and Merits of Legislation: (a) Drafting of Legislation (in word and content): Clarity and Precision: Legislation provides a legal rule clearly written in form and content, which helps eliminate ambiguity. Definitive Application: The rule clearly states when it begins to apply and defines its exact meaning, which reduces disputes—especially those that arise with customs. Legal Certainty: Because it is written and formalized, legislation is known as "written law" and gives society order and stability by removing uncertainties associated with customary laws. (b) Unity of Legislation: Nationwide Uniformity: Legislation creates a unified legal system throughout the entire country, since it is enacted by a central authority and applies equally in all regions. Simplification of Dealings: This unification helps in standardizing laws, simplifying legal dealings across different parts of the country. Historical Impact: In the 19th century, countries like France, Italy, and Germany replaced diverse, region-based customary laws with unified national legislation, contributing to national cohesion. (c) Speed in the Establishment and Amendment of Legislation: Quick Response: Compared to custom, legislation can be created and amended more quickly, making it adaptive to the changing needs of society. 5  Flexibility: This flexibility allows for timely establishment of new laws or modification of existing ones, which is not possible with slower-evolving customs. Criticism and Solutions: Criticism: Some argue that legislation is merely the result of the legislator’s skill rather than a natural reflection of social evolution. Potential Pitfall: If legislation does not match societal needs, it may become irrelevant or harmful. Solutions/Remedies: 1. Improve legislative craftsmanship: Legislators should be skilled in identifying real legal needs. 2. Continuous updates: Legislation should be regularly revised and amended in response to social developments. Source Alignment: Good legislation should be inspired by the real sources of law, such as social and economic conditions. If it is aligned with these, it remains relevant and effective. Ongoing Monitoring: Legislators must closely observe changes in society to ensure laws stay compatible with their source and purpose. Enactment and Repeal: o Types of Legislation: ▪ Basic/Principal Legislation (Constitution): The constitution of a country is the foundational legislation that sets out the structure of the government and the rights of individuals. 6  ▪ Ordinary Legislation: These are laws passed by the legislative body to address day-to-day legal issues. ▪ Subsidiary Legislation: Regulations and decrees issued by the executive branch to implement and regulate the specifics of ordinary legislation. VII. The Enactment and Repeal of Legislation Enactment Process: The process by which legislation is passed usually involves a proposal, debate, and approval by a legislative body. It can also be subject to public consultation and the executive's approval before becoming law. Repeal of Legislation: Laws that no longer serve their purpose or are outdated can be repealed by the legislature. This ensures that the legal system remains relevant and effective in addressing the needs of society. (ii) Enactment and Repeal of the Constitution and Amendments: The Constitution of Egypt has undergone several amendments and revisions throughout its history. Notably, the process of amendment and the different versions of the Constitution can be summarized as follows: Historical Constitution Changes: 1. 1923 Constitution: The first significant constitution in modern Egypt. 7  2. 1956 Constitution: Introduced after the Egyptian Revolution of 1952. 3. 1964 Constitution: Further changes in the political landscape. 4. 1971 Constitution: Drafted as the permanent constitution of Egypt, and remained the basis of Egypt's governance until 2011. 5. 2012 Constitution: Drafted after the Egyptian revolution in January 2011. 6. 2014 Constitution: Issued after the June 2013 revolution, establishing a revised framework. 7. 2019 Amendments: A referendum was held to approve amendments, such as extending the presidential term from 4 to 6 years, allocating 25% of parliamentary seats to women, and reinstating the post of vice president. Amendment Process: 1. Submission of Amendment Proposal: ▪ Amendments can be proposed by the President of the Republic or at least one-fifth of the House of Representatives. ▪ The proposal must specify the articles to be amended and provide the reasons for the amendments. 2. Approval of the House of Representatives: ▪ The proposed amendment must be presented to the House of Representatives for principle approval. ▪ The House has 30 days to discuss the proposal. ▪ A majority of House members must approve the principle of the amendment. ▪ If rejected, no new proposal for amending the same articles can be submitted in the same term. 8  3. Approval of the Draft Amendment by the House of Representatives: ▪ After approval of the principle, the House has 60 days to discuss the details of the proposed amendments. ▪ The House must approve the draft amendment by a two-thirds majority. 4. Public Referendum: ▪ Once the House of Representatives approves the draft amendment, it must be presented to the public in a referendum. ▪ The referendum must be held within 30 days of the House's approval. ▪ The amendment becomes law once the majority of voters in the referendum approve it. ▪ It enters into force from the date the referendum results are announced. (iii) Enactment, Implementation, and Repeal of Ordinary Legislation: Ordinary legislation in Egypt follows a clear process, with three main stages: 1. Proposal of Legislation: o Legislation proposals can be made by the President, the Council of Ministers, or at least one-tenth of the House of Representatives members. o If proposed by the President or government, the draft is referred directly to a specialized committee in the House of Representatives. 9  o If proposed by a member of the House of Representatives, the draft is sent to a special committee, which assesses its suitability before it proceeds to the House of Representatives. 2. Approval by the House of Representatives: o The House of Representatives convenes to discuss the draft legislation. o A valid meeting requires the presence of a majority of members. o Following discussions, the draft is put to a vote. o Absolute majority approval is required for legislation to pass, provided that at least one-third of House members are present. o In case of a tie in voting, the proposal is rejected. 3. President’s Non-Objection (Veto) Process: o After House approval, the legislation is sent to the President for promulgation. o The President has the right to veto the legislation and return it to the House within 30 days. o If the President does not veto the legislation within the specified period, it is automatically considered approved and enacted. o If the President vetoes the legislation, the House can override the veto with a two-thirds majority vote, making it a law. (iv) Enactment of Subsidiary Legislation and Executive Regulations: Purpose of Subsidiary Legislation: The executive branch can issue subsidiary legislation or regulations that provide detailed 10  provisions necessary for the implementation of principal legislation. These regulations are issued by the executive authority (e.g., President or government ministers) and are considered part of public administration acts. Regulation Process: o Delegation of Authority: Rather than waiting for the legislative authority to enact detailed rules, the executive branch may be delegated to issue subsidiary legislation. o State Council Review: Before issuing subsidiary regulations, they must be reviewed by the State Council to ensure compliance with the principal legislation. o Mandatory Compliance: The executive regulations must be in line with the original legislation and cannot contradict or amend the principal law. V. Implementation of Legislation and Its Entry into Force: The legislative process culminates in the promulgation and publication of laws, making them enforceable. 1. Promulgation of Legislation: o Once the President has approved or not vetoed the legislation, it is promulgated. o The President announces that the law has been passed and orders its implementation by the executive branch. o The legislation is published in the Official Gazette, and its enforcement begins. 2. Proclamation of Legislation: o Entry into Force: The law becomes enforceable once it is promulgated and published in the Official Gazette. 11  o The law is not binding until people are made aware of it. The official proclamation makes the law known to the public. o The law enters into force one month after publication in ordinary circumstances, unless stated otherwise in the legislation. VI. The Principle That Ignorance of the Law Is Not an Excuse: Ignorance of the Law: According to Article 225 of the Constitution, once a law is published in the Official Gazette, it enters into force one month later. From this point, all individuals are expected to comply with the law, regardless of whether they were aware of it. o Exceptions: ▪ Force Majeure (e.g., war): If there is a force majeure event like war or disruption of transportation, the enforcement of new legislation may be delayed until the state of emergency is over and the Official Gazette reaches its destination. ▪ Foreigners or Egyptians abroad at the time of publication cannot claim ignorance as a valid excuse for violating the law. A. The Scope of Application of the Principle that Ignorance of the Law is Not an Excuse 1. With Regard to the Source of Legal Rules: o The principle that ignorance of the law is no excuse applies to all legal rules, irrespective of their source. This includes rules derived from: 12  ▪ Legislation (formal laws passed by the legislative body), ▪ Custom (established practices accepted by society), and ▪ Religion (such as Sharia law or religious legal rules). o The rationale is that no one can avoid responsibility simply because they claim not to have known a particular law or legal rule, regardless of where it comes from. 2. With Regard to the Type of Legal Rules: o Legal rules can be classified into: ▪ Mandatory rules: These are rules that require adherence without any option for deviation (e.g., criminal law prohibitions). ▪ Complementary (explanatory) rules: These are rules that apply unless the parties involved agree otherwise (e.g., contract law). o There is a difference of opinion among scholars regarding whether the principle should only apply to mandatory rules or whether it should apply to all legal rules (including complementary/explanatory rules). ▪ Some scholars argue that ignorance of mandatory rules should never be an excuse, as they are of critical importance in maintaining public order and justice. ▪ Others contend that ignorance of complementary/explanatory rules should also not be accepted as an excuse because: ▪ Both mandatory and complementary rules are binding (in that they impose legal obligations). 13  ▪ Allowing ignorance of complementary rules as an excuse would create loopholes, where individuals could avoid obligations if they claimed ignorance, undermining the legal system's effectiveness. ▪ Therefore, scholars in favor of extending the principle to all legal rules (whether mandatory or complementary) argue that the distinction between mandatory and complementary rules is unjustifiable. B. Basis of the Principle The adoption of the principle that ignorance of the law is not an excuse is a social and practical necessity. o Social necessity: For a society to function with justice and order, individuals must be responsible for knowing and following the law. Without this principle, individuals could easily evade legal accountability by claiming ignorance. o Practical necessity: Legal systems require that everyone, regardless of their knowledge or background, is equally accountable under the law. It ensures that people cannot avoid responsibility through ignorance of the rules that govern them. It helps preserve public order and the rule of law, ensuring that laws are upheld and enforced consistently. 14 C. Exceptions to the Principle and Force Majeure 1. Exceptions to the Principle: o Scholars disagree on what constitutes acceptable exceptions to the rule that ignorance of the law is not an excuse. However, there is widespread consensus on one significant exception: Force Majeure. o Force Majeure refers to exceptional, unforeseen circumstances that make it impossible for the public to know the law through the usual means, such as the official gazette (where new laws and regulations are published). 2. Force Majeure Circumstances: o Examples of Force Majeure include: ▪ War: When parts of the state are occupied by an enemy, making access to official gazettes impossible. ▪ Natural Disasters: Events like earthquakes, floods, or other large-scale disasters that disrupt communication and access to information. ▪ Infrastructure Failures: For example, if railway systems are disrupted, preventing the delivery of important legal documents to certain regions. o In such cases, ignorance of the law can be excused, but only as long as the Force Majeure event continues. Once the situation returns to normal and the official gazette becomes accessible again, the excuse for ignorance no longer applies. o Limitations: 15  ▪ The Force Majeure exception only applies to legislative rules (those published in the official gazette). ▪ The exception is limited in time; it is valid only as long as the Force Majeure situation persists. D. Emergency Legislation 1. Context of Emergency Legislation: o If an emergency arises when the House of Representatives is not in session or is dissolved, and there is an urgent need for new legislation, the President has the authority to act. o This is necessary when there is no time to wait for the normal legislative process, and an immediate legislative response is required to address the emergency situation. 2. Process for Issuing Emergency Legislation: o Decree Issuance: The President may issue a decree that has the force of law. o Submission to the House of Representatives: After issuing the decree, the President must submit it to the House of Representatives within 15 days from the first session after the recess. o Approval or Rejection: ▪ If the decree is not submitted to the House within this period, its force of law ceases retroactively. ▪ If the decree is submitted but the House rejects it, its force of law ceases retroactively unless the House approves its earlier effects or otherwise resolves its consequences. 3. Conditions for Emergency Legislation: 16  o The emergency legislation must address a necessity that cannot wait for the usual legislative processes. o The House of Representatives must be either recessed, dissolved, or suspended when the emergency arises. o The President has 15 days to submit the decree to the House, which must then decide whether to approve or reject the legislation. E. Revocation of Legislation 1. Explicit Revocation: o Explicit revocation occurs when a law includes a provision that limits its duration. Once the specified period for its enforcement lapses, the law is revoked. o Example: War laws that are intended to apply only during wartime and automatically expire when the war ends. 2. Implicit Revocation: o Implicit revocation happens when a new law is enacted that contradicts an existing law or makes it impossible to enforce both simultaneously. The new law supersedes the old law. o Example: If the Civil Code stated that ownership of fixed assets could be transferred by a mere contract, but a Law of Registration later stated that fixed assets could only be transferred through registration, the old Civil Code provision would be implicitly revoked in favor of the new law. 3. Special Provisions and Contradictions: 17  o If the new law contains a special provision that conflicts with a general provision in the old law, the new provision revokes the old one only with regard to the specific case it addresses. o Example: A special provision for the transfer of fixed assets in a new law could revoke the old general rule that applied to all types of assets, but only with respect to fixed assets, while the rule for movable assets would still apply. 4. Effect of New Legal Systems: o When a new legal system is introduced, it may revoke old laws that contradict it, but regulations that were issued by public authorities under the old system and are consistent with the new law remain valid unless the new law explicitly states otherwise. Egypt's Parliament Egypt has a bicameral legislature, meaning it has two chambers: House of Representatives and House of Senate: A. House of Representatives: House of Representatives in Egypt under the 2014 Constitution and Law No. 46 of 2014: 1. Constitutional Role & Powers (2014 Constitution) The House of Representatives is the main legislative authority and is responsible for: 1. Enacting legislation 18  2. Approving: o General policy of the State o Economic and social development plan o State budget 3. Oversight: Supervises the activities of the Executive Authority 2. Constitutional Framework: (2014 Constitution) (1) Composition Must consist of not less than 450 members Elected by direct, secret, public ballot At least 25% of seats reserved for women (2) Candidate Requirements A candidate must: Be an Egyptian citizen Enjoy civil and political rights Hold at least a certificate of basic education Be 25 years old or older on the date of candidacy registration (3) Election System and Constituencies Determined by law, including: o Electoral system (individual/list/mixed) o Division of constituencies o Must ensure fair representation of: ▪ Population ▪ Governorates ▪ Voters (4) Electoral Methods Elections may use: 19  o Individual system o List system o Or a combination of both, in any proportion (5) Presidential Appointments The President may appoint up to 5% of the House Method and criteria of nomination defined by law (6) Term Duration 5 calendar years, starting from first session date (7) Election Timeline New elections held within 60 days prior to the expiration of the current term (8) Membership Cancellation Possible if: o Member loses trust or esteem o No longer satisfies eligibility conditions o Violates membership duties (9) Cancellation Process Requires 2/3 majority vote of the House (10) Resignations Must be in written form Cannot be accepted if procedures for cancelling membership have begun (11) Governing Law 20  Law No. 46 of 2014 sets detailed rules for elections and membership 3. Law No. 46 of 2014 – Additional Provisions (1) Size and Appointments First House after the 2014 Constitution: 568 elected members President may appoint no more than 5%, based on specific criteria in law (2) Electoral Division 284 seats by individual system 284 seats by closed absolute list system (3) Constituency Structure Multiple constituencies for individual system 4 constituencies for list system (defined by a separate law) (4) Representation Balance Number of members per constituency based on: o Population o Number of voters Must ensure just and equitable representation for all regions (5) Candidate Lists Must Include: Equal number of substitute candidates Representation from: o Christians o Workers and peasants o Youth 21  o Disabled persons o Egyptians living abroad o Minimum quota of women (6) Maintaining Candidate Status Member must retain status upon which elected: o If independent, must remain independent o If party-affiliated, must remain with same party Changing status = loss of membership 4. Candidacy Conditions (from the Law) A candidate must: 1. Hold Egyptian nationality (sole nationality) 2. Have civil and political rights 3. Be registered on the voter list in any governorate 4. Be at least 25 years old at the time candidacy opens 5. Hold at least a basic education certificate 6. Have performed military service or have legal exemption 7. Not have previously lost House membership (due to loss of confidence or duty violation), except in certain legal exceptions 8. If a civil servant in a restricted category, must resign before candidacy 5. Required Documents for Candidacy Must submit: 1. Asset declaration (self, spouse, minor children) 2. Financial deposit as a guarantee (amount set by law) Judicial committee (3 judges) reviews documents in each governorate 22  Candidate lists are published in widely circulated newspapers Legal challenges handled by the Council of State court 6. Electoral Campaign Rules Propaganda must respect constitutional principles Governed by the Law on the Exercise of Political Rights 7. Voting Outcomes and Procedures Individual System Candidate wins with absolute majority of valid votes If not achieved: runoff between top 2 candidates List System List wins with absolute majority of valid votes If not achieved: runoff between top 2 lists 8. Presidential Appointments: Rules The President may appoint up to 5% of the House under these restrictions: 1. Appointees must meet all candidacy requirements 2. No party member may be appointed if it alters majority representation 3. No member of President’s former party can be appointed 4. No one who lost House elections in the same legislative term can be appointed 23  Appointments must be published in the Official Gazette Appointed members have same rights and obligations as elected ones B. House of Senate: Establishment and Composition: Reintroduced in 2020: The House of Senate was reinstated as a part of constitutional reform in July 2020. Composition: It consists of 300 members, with 200 elected by direct secret public ballot and 100 appointed by the President of the Republic. Gender Representation: At least 10% of the seats in the Senate are reserved for women. Term: Senate members serve for five calendar years, beginning from the date of the Senate's first session, and elections for a new Senate must be held within 60 days of the term’s end. Candidacy Requirements: A candidate must be Egyptian, enjoy civil and political rights, and be registered in the list of voters in any governorate. Candidates must be at least 35 years old, possess a university degree or its equivalent, and meet military service requirements (or be legally exempt). Similar to the House of Representatives, a person who loses their Senate membership due to loss of confidence or failure to fulfill membership duties may not run for re-election unless the underlying reason is rectified. 24 Functions and Role: The House of Senate reviews proposals to amend the Constitution, as well as social and economic development projects. It also reviews treaties related to peace and sovereignty, as well as any laws or national policies referred by the President of the Republic. III. Election of the President of the Republic A. Constitutional Regulation of the Presidency The President of the Republic is: Head of State Head of the Executive Authority Duties include: Serving the interests of the people Safeguarding the independence of the nation Preserving the territorial integrity and safety of Egyptian lands Abiding by the Constitution Exercising powers as defined by the Constitution Term Length: Presidency period ‫فترة الرئاسة‬ 6 calendar years Begins the day after the term of the precursor ends Renewable only once (President can serve a maximum of two consecutive terms) 25 Timing of Elections: Procedures must start at least 120 days before term ends Results announced at least 30 days before the term ends Party Affiliation:‫ الانتماء الحزبي‬: The President may not hold any party position during the presidential term B. Candidacy Requirements (‫)شروط الترشح لمنصب الرئيس‬ A presidential candidate must: 1. Be Egyptian, born to Egyptian parents 2. Enjoy full civil and political rights 3. Have completed military service or be legally exempted 4. Be at least 40 years old on the date candidacy begins 5. Have one of the following endorsements: o 20 elected members of the House of Representatives o OR 25,000 citizens eligible to vote, from at least 15 governorates, with a minimum of 1,000 endorsements per governorate ▪ A voter may not endorse more than one candidate 6. Fulfill any additional requirements as defined by law C. Election Procedures 1. Voting: o Conducted by direct secret ballot o Winner must gain an absolute majority of valid votes 26  2. Governing Law: o The procedures and mechanisms are specified in election laws 3. Presidential Oath (‫)أداء اليمين‬: o Taken before the House of Representatives o If the House is not in session, taken before the General Assembly of the Supreme Constitutional Court o Oath Text: "I swear by Almighty God to loyally uphold the republican system, respect the Constitution and the Law, fully uphold the interest of the people, and to safeguard the independence of the nation and the integrity and safety of its territories." D. Resignation or Vacancy of the Presidency ( ‫إجراءات استقالة الرئيس‬ ‫)أو خلو منصبه‬ 1. Resignation Submitted to the House of Representatives If Parliament is not in session, submitted to the General Assembly of the Supreme Constitutional Court 2. Temporary Inability The Prime Minister temporarily assumes presidential powers 3. Permanent Vacancy Occurs due to: Resignation 27  Death Permanent inability to carry out duties In this case: The House of Representatives declares the vacancy officially If the reason is other than the above, 2/3 majority vote is required The Speaker of the House acts as interim President If the House is not in session: The General Assembly of the Supreme Constitutional Court and its Chairman act in place of the House and its Speaker New Election Deadline: A new President must be elected within 90 days from the date of vacancy The new term starts from the announcement date of election results Powers and Limitations of the Interim President (‫)الرئيس المؤقت‬: Cannot run for presidency Cannot amend the Constitution Cannot dissolve the House of Representatives Cannot dismiss the government In Case of Overlap with a Referendum or Parliamentary Election: Presidential election takes precedence The current House of Representatives remains in office until the new president is elected 28 The Need for Other Sources of Legislation Why additional sources of law are necessary: A single legislator cannot possibly predict or incorporate all the legal rules required to regulate the community. Impossibility of foresight: It is impossible to foresee all the rules that may be required in the future. Diverse issues: Some issues require different solutions in different areas or must evolve over time to keep pace with societal changes. Key Points from Theorists: 1. Portalis (French jurist): o Legislation cannot cover everything: It is a mistake to believe that legislation can provide for every possible situation. o Judicial role: There will always be shortcomings in the law, which judges must address through interpretation and experimentation. 2. Charmon (Jurist): o Legislation is not sufficient: Legislation cannot be everything; other sources must complement it. o Role of informal sources: Although the stand toward these sources may vary, they can never be fully eradicated. 29 Formal Sources of Law (as per the Civil Code): 1. Legislation: Primary source of law, providing fixed and defined provisions. 2. Custom: Traditions and societal norms are recognized as important sources. 3. Principles of Islamic Law (Shari'a): Seen as reliable, with fixed foundations in Islamic jurisprudence. 4. Natural Justice: Based on equity, fairness, and common sense, but often considered less clear and well-defined. Informal Sources of Law: 1. Court Precedents: Decisions made by courts that may influence future rulings. 2. Jurisprudence (Legal Scholarship): Opinions and interpretations provided by legal scholars, which can guide judicial decisions. Order of Importance: Formal Sources are ranked in order of importance due to their clarity and structure: 1. Legislation and Custom are placed before other sources because they are well-defined and fixed. 2. Islamic Law is ranked higher than Natural Justice due to its clear foundations in Islamic jurisprudence, making it a more reliable source for legal rulings. 3. Natural Justice is regarded as less reliable due to its vagueness and ongoing debates about its content. Role of Islamic Law (Shari’a): 30  Secondary Formal Source: Islamic law is considered a secondary source of legal rules, especially for matters not directly governed by specific legislation or custom. Personal Status Laws: While Islamic law is used as a source of personal status laws in Egypt, it is not the primary source when specific laws or custom already address the issue. Influence of Religion on Eastern Laws: The influence of religion on laws in countries of the east: Islam is both a religion and a legal-political system. It governs not only family matters but also: o Trade, contracts, inheritance, penalties, etc. Sources of Islamic law: o The Qur’an and Sunna (Prophet’s teachings) Juristic efforts have expanded Islamic legal doctrines into a full legal system, rivaling modern legal systems. Dual Nature of Sharia Provisions Islamic legal provisions are divided into: 1. Divine rules: Directly from Qur’an and Sunna 2. Deduced rules: By scholars, based on interpretation While both are rooted in divine sources, they are also part of positive law (law developed and applied by human systems). 31 Historical Influence of Religion in Egypt From the Islamic conquest to the era of Mohamed Ali, Sharia was the dominant law, especially in personal status matters. Mohamed Ali introduced French legal principles—mainly in trade and criminal law—displacing parts of Sharia. His successors further adopted French-style codes which officially overrode Sharia provisions in many civil matters. Some Islamic concepts remained: o Preemption (‫)الشفعة‬, sales during terminal illness, endowments (waqf), etc. Sharia as a Historical and Interpretive Source Many modern laws, even if codified, still draw upon Islamic principles. Judges may refer to Islamic sources to interpret laws, though not bound by religious jurists’ opinions. Sharia Role in Modern Civil Law For Muslims, Sharia applies to personal status unless overruled by codified law. For non-Muslims, personal status issues are governed by their own religious laws (Christianity or Judaism), except in areas like inheritance or wills, which apply to all Egyptians. 32 Sharia as Secondary Source in Civil Law: Article 1 of the Civil Code states: If there is no applicable law, judges refer to custom → Islamic principles → natural justice. Limitations: In this respect, there are four points which are worthy of consideration: 1. Applies only where religious law is not already applicable (mostly in financial or real estate matters). 2. Reference is made to general principles, not detailed rules. 3. Legislators favor Sharia over natural justice for clarity and foundation. 4. Despite constitutional references, legislation still holds top authority, with Sharia remaining secondary. The Egyptian legislator considered religion as a principal formal source of legal rules in issues related to personal status, and he also considered the principles of Islamic law (Sharia) as a secondary formal source of law with regard to other matters. 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 and the Supreme Constitutional Court has likewise passed a ruling confirming and supporting this principle.. 33  Doctrine (‫مذهب‬/‫)العقيدة‬: A. Definitions : Refers to the body of ideas and interpretations developed by jurists (legal scholars). These include legal explanations, critiques, and suggestions found in scholarly books or expressed opinions. o Doctrine does not have binding legal force, but it plays a role in guiding and influencing legal understanding. o Court Precedents (‫)سوابق المحكمة‬: Refer to rulings made by courts regarding lawsuits presented to them. o Such rulings not only settle specific disputes but may also establish principles that guide future decisions. o These are often called "decisions of principle" ( ‫القرارات‬ ‫)المبدئية‬. o While not always binding, these rulings can become influential or persuasive precedents. B. The Role of the Jurist vs. the Judge Jurist (‫)الفقيه‬: o A jurist is a scholar of law with no official authority to enact or enforce laws. o Their role is to interpret legal texts, offer commentary, and provide suggestions for legal development. o Jurists help guide legislators and judges by offering enlightened interpretations but their views are not binding on courts or lawmakers. o 34  Judge (‫)القاضي‬: o A judge is an official member of the judiciary tasked with applying laws to actual disputes. o Based on the principle of separation of powers, judges apply the law while legislators create it. o A judge's ruling is limited to the specific case in front of them. o Judges cannot issue general rulings about future cases, nor can they create universally binding rules. o Judges are not even bound by their own previous rulings or those of other courts unless required by law. Key Conclusion: o Judges apply existing legal rules, not create them. o Therefore, neither doctrine nor court precedents are formal sources of law in the technical legal sense. The Status of Doctrine and Court Precedents in Modern Times (‫)مكانة العقيدة وسوابق المحكمة في العصر الحديث‬ 1. Legal Doctrine (Opinions of Jurists - ‫)العقيدة القانونية‬: When jurists agree on a particular legal interpretation—through deduction, analogy, or general principles—and consistently stick to it, their opinion can gain strong influence. These opinions can reflect the essence of legal rules and are often invoked in legal arguments before courts. Courts frequently adopt such views, making legal doctrine a persuasive authority, especially when it becomes widely accepted. 35 2. Judicial Precedents (‫)سوابق المحكمة‬: Not legally binding in Egypt but influential. A ruling applies only to the parties involved in that specific case. However, courts often follow their own previous rulings in similar cases. If higher courts (especially the Court of Cassation) make consistent rulings, they may influence other courts and even gain the power of law over time. 3. Role of the Court of Cassation (‫)محكمة النقض‬: Ensures correct application of the law, not fact-checking. Can overturn (cassate) a ruling if there is a legal error, and refer the case to another court of the same level. The new court must follow the legal view of the Cassation Court. Judges, though independent, often align with the Cassation Court’s interpretations to avoid their rulings being overturned. 4. Supreme Administrative Court (‫)المحكمة اإلدارية العليا‬: Functions similarly to the Court of Cassation but for administrative courts (per Law No. 47 of 1972). 36 5. Judicial Role in Filling Legal Gaps: When no law addresses a case, judges use: o Analogy o General principles of law o Principles of Islamic law (Sharia) If such interpretations are applied consistently, they evolve into recognizable legal norms. 6. Examples of Judicial Precedent Shaping Law: Protection of literary/artistic rights Rule of non-abuse of rights Regulation of insurance contracts These rules were applied by courts before legislation was enacted, showcasing the judiciary’s role in developing law. Conclusion: While juristic doctrine and court precedents are not formal sources of law under Egyptian legal hierarchy, they hold substantial practical influence, shaping legal interpretation and even contributing to the evolution of law. 37 Combined Influence of Doctrine and Precedent Aspect Legal Doctrine Court Precedents Nature Scholarly opinion Judicial decision Binding Force No formal binding force Only binding to parties of the case Highly persuasive if Persuasive; often followed for Practical Influence consensus exists consistency Contribution to May create new legal rules through Fills gaps in interpretation Law practice Institutional Court of Cassation, Supreme Admin. Legal academia, publications Support Court Formal Source Informal, but some jurists argue it Informal source (mostly) Status should be formal Despite not being informal sources, both jurists’ views and court precedents have practical influence in modern legal systems: o If many jurists agree on an interpretation, the public and courts may treat it as the essence of the law. o Such consensus becomes influential in court pleas and decisions. E. Juristic Reference Books and Legal Collections Jurists publish books explaining, interpreting, or critiquing laws. These are widely used by: o Judges, lawyers, and legal scholars as authoritative references. Collections of Court Rulings: o Some institutions or individuals compile court decisions, especially those involving legal principles. 38  o These are published in books or periodicals for easier reference and are often used as practical tools in legal research and argumentation. Final Summary Neither juristic writings nor court precedents are formal sources of law in Egypt. However, they play a powerful informal and persuasive role in shaping legal thought and influencing court decisions. Doctrine offers guidance to legislators and judges, while precedents help maintain consistency and predictability in judicial rulings. With time and repetition, non-binding practices can evolve into widely accepted rules, even before being enacted into legislation. 39