Modern Egyptian courts would seem to be unattractive both to ruler and ruled. Yet since their establishment over a century ago, they have not only become important parts of the social and political landscape but have been imitated throughout the Arab world.

Why did Egypt's political leaders construct and maintain a system that seems – at least at first glance – to restrict their own authority? Egypt may be the Arab country that has come closest to establishing the strong and autonomous legal institutions necessary for the rule of law. With courts that have freed political extremists and twice brought down the country's parliament, Egypt's judicial system is regarded as possessing remarkable independence and integrity (even while it is often perceived as a European imposition).

Why does an autonomous and dilatory system recommend itself to Arab rulers outside Egypt? Far from filling Arab observers with dismay, Egyptian courts are a model throughout the region, emulated in varying degrees in political systems as diverse as those of Libya, Kuwait, Iraq, and Yemen. Egyptian legal models – along with many Egyptian judicial personnel – have been employed in much of the Arab world.

Why do so many Egyptians choose to bring their disputes to court? The Egyptian legal system is widely held to be confusing, overburdened, and forbidding. Criticized as culturally inappropriate when founded a century ago, lampooned by Tawfiq al-Hakim as overworked and incomprehensible to Egyptians a half-century ago, and constantly described today as slow and strained to the breaking point, Egyptian courts not only survive but are increasingly sought out by Egyptians from all walks of life.

In 1995, the Palestinian authority in Gaza and Jericho took its first unambiguous step in the direction of statehood by creating State Security Courts for cases of political violence (especially against Israeli targets). At the same time an assortment of Islamist movements in neighboring Egypt were engaged in a violent struggle with state authorities, with the movements claiming that the failure to implement the Islamic shari'a rendered the regime illegitimate. The regime responded by using all tools available, including, most controversially, military courts to try civilians.

Courts and legal systems have been the focus of intense political struggles in the Arab world, in some locations for over a century. Legal issues are, as everywhere, technical and arcane at times, but just as often they are closely connected to the definition and operation of political power and political community. Residents of the Arab world encounter courts and the legal system in many of their affairs; in fact, they seek out the courts at surprisingly high rates.

This study concerns the role of courts in social and political life in the Arab world. Egypt receives the major focus, but I have also conducted primary research in the Gulf and have included references to other Arab cases in order to cast the argument as widely as possible.

In transliterating Arabic names and terms, I have endeavored above all to be consistent. In general I follow the system suggested by the International Journal of Middle East Studies except that I have not used any diacritical marks. Consistency does have its costs, one of which is that several of the people mentioned may barely recognize their own names.

In the Arab states of the Gulf, legal reform took place in a very different international and domestic setting from that prevailing in Egypt over the past century. The imperial influence was greater (thus the likelihood of imposed law should have increased). Additionally, the forces for liberal legality were weaker. Yet if the historical experience of Egypt over the past century is any guide, the adoption of European-style legal systems – and legal reform more generally – cannot be explained primarily in terms of imperial imposition or liberal legality. While imperialism was hardly irrelevant to the Egyptian experience, the European presence at most set the context for a series of far-reaching reforms that was pursued for independent reasons by an ambitious, centralizing Egyptian political elite. And while the system adopted had several characteristics of liberal legality, it could also be accommodated to a variety of political systems. To be sure, the lawyers and judges of Egypt's National Courts were always one of the strongest forces advocating liberal legality, but they also posed few obstacles to (and occasionally have facilitated) unchecked executive authority.

One would expect that the Arab states of the Gulf would have been both more susceptible to imperial pressure and more suspicious of institutions associated with liberal legality. The British presence excited less nationalist opposition (with the possible exception of Bahrain) and came at a time when the administrative structure was far more rudimentary than in Egypt. And the regimes of the Gulf have been unabashedly autocratic; with the exception of short periods in Bahrain and much longer periods in Kuwait, liberal democratic institutions and practices have generally not even existed on a nominal level.

In the last quarter of the nineteenth century, Egypt's rulers worked to build an independent judiciary and implement codified law. In the process they consciously turned away from Islamic and Ottoman sources and towards continental Europe. How can this change be explained? Was it primarily caused by imperial penetration, a desire to construct a liberal political and economic order, or a state-building and centralization project? A study of the timing and nature of the changes, combined with an analysis of the writings of some of those involved, reveals that the role of imperialism, though significant, at most accentuated and modified already existing trends. Liberalism played a notable role as well, though the nature of that liberalism was hardly inconsistent with the primary factor: the desire to build a strong and centralized state. The imperialist, liberal, and statist pressures for legal reform will each be considered in turn. Yet because the exact nature of the late nineteenth-century reforms have often been miscast (and even overstated), it is necessary to offer an accurate understanding of the changes of that period (along with the continuation of those trends in the early twentieth century).

The construction of a new legal system in Egypt

The reforms of the late nineteenth century did mark a new departure for Egyptian legal development but also built on some trends that had been evident in earlier reforms. For several decades various efforts had been made to build a more centralized and hierarchical judiciary in addition to accentuating the role for positive legislation (without contradicting or eliminating the influence of the Islamic shari'a).

In 1987, Musa Sabri, a prominent Egyptian journalist was angered by an article mentioning him in the opposition newspaper al-Wafd. He filed a libel suit against the paper's editor, Mustafa Shardi, and the leader of the Wafd party, Fu'ad Siraj al-Din, the two officials held responsible under the press law for the contents of the paper. It took seven years before Sabri's suit was rejected by the Mahkamat al-Naqd which ruled that the responsibility mentioned in the press law was undefined. Long before this the plaintiff and one of the two defendants had died, yet the case continued on, possessed of its own life, until the highest court in the country had ruled.

In 1961, a resident of Cairo learned from his father that the family was a beneficiary of a waqf (endowment) consisting of some urban real estate valued at eight million dollars and decided to go to the Ministry of Awqaf to have it divided among the many heirs.

In the three decades following the Montreux conference the most striking feature of the Egyptian judicial structure was its institutional continuity. The few major changes that were made (with the possible exception of the establishment of the Majlis al-Dawla) had the effect of furthering the centralization of the system. What makes this continuity especially noteworthy was that it coincided with tremendous political changes in the country. The battles between the Wafd, the British, and the king, the end of the constitutional monarchy, and the establishment of an authoritarian and socialist regime under Gamal 'Abd al-Nasir caused significant changes in the political role of the judiciary without altering its basic structure. Only in the last few years of 'Abd al-Nasir's rule were more fundamental changes discussed, and only some of these were effected. For the most part, dramatic political changes in the country were accommodated by seemingly minor changes in the judicial structure. The periods both before and after the 1952 coup, which replaced the parliamentary monarchy with rule by army officers, witnessed further centralization of the judicial system. This coincided with an attempt to entrench further liberal legality. The attempt realized some successes, but within a few years after 1952 these successes, though formally institutionalized, were effectively reversed.

The unification of the judiciary

The agreement at Montreux to end the capitulations and to transfer the work of the Mixed Courts to the National Courts after a twelve-year period finally made possible the unification of the judicial structure anticipated by Nubar and others in the 1870s. With the Mixed Courts seen as an anachronistic limitation on Egyptian sovereignty, they were allowed to disappear completely.

Transjordan was the most artificial of the states created in the wake of the First World War. Born out of a temporary agreement between Amir Abdullah and Britain in 1921, it has proved resilient in the face of the various domestic and regional tensions that have threatened its existence. In part, this was due to Abdullah's ability to establish a viable form of patrimonial rule based on a series of alliances with Sharifian, Palestinian, Syrian, and Circassian expatriate élites which gave him some degree of independence from the indigenous social, mainly tribal, forces of the region. Ultimately, however, Transjordan (or Jordan as it became in 1945 after the signing of the Anglo-Jordanian Treaty which established Jordan's independence) owed its existence to the financial, military, and diplomatic support of Britain. As Mary Wilson has written, ‘it had no reason to be a state on its own … except that it better served Britain's interests to be so’.

This tenuous viability, however, was increasingly threatened in the volatile postwar world of the Middle East. The regional prestige and influence of Britain, Jordan's long-time patron, was beginning its precipitous decline, symbolized most dramatically by its decision to withdraw from Palestine in 1947, though this paradoxically resulted in an increase in the relative importance of Jordan in British strategic thinking. More serious for Jordan, however, was the disastrous outcome of the war in Palestine which resulted, among other things, in the tripling of Jordan's population due to the influx of Palestinian refugees and the incorporation of West Bank Palestinians into the country in 1950.

One of the most striking features of the postwar Middle East was the explosion of nationalist sentiment. Since the inauguration of the ‘peasants, not pashas’ policy and the establishment of the BMEO, the attitude of the Arab world toward Britain had deteriorated dramatically. Renegotiations with the Egyptians over the terms of the 1936 Anglo-Egyptian Treaty continued to flounder and this was joined by the Iraqi rejection of the Portsmouth Treaty in 1948 and the growth of nationalist pressure on the Shah in Iran to revise the terms of the concession of the Anglo-Iranian Oil Company (AIOC). Permeating all of these conflicts was the brewing storm in Palestine which erupted in 1948, severely weakening the existing political structures of the region and giving renewed life to the emerging nationalist opposition forces. When the development policy had been drafted in 1945, it was hoped that it would help to neutralize such political forces. It now seemed that economic and social development was dependent on the same factor which it was designed to promote. As John Troutbeck, Overton's successor as head of the BMEO, concluded upon completing his inaugural tour of the Middle East in late 1947: ‘Quite apart from the obvious difficulties of world shortages, poor administration … corruption, indifference, etc., economic development is everywhere bedeviled by politics. It needs tranquility, but on the one side you have the Russian menace and on the other Palestine.’

It was not that the political élites of the region were ignoring problems of socio-economic development.

Iraq's modern history has revolved around attempts to integrate a diverse and fragmented country. Before its creation in 1921, Iraq had been a peripheral outpost of the Ottoman Empire consisting of three loosely administered vilayets each with its own distinct geographic, ethnic, and religious features. To a great extent, the desert ruled over the sown and the tribe ruled over the state. The integrating potential of the two great rivers of Iraq – the Tigris and Euphrates – that had once formed the basis of great civilizations in the past had been long neglected.

However, in the late nineteenth and early twentieth century, two factors emerged to push what was to become Iraq into the modern world of nation-states. The first was the implementation of the tanzimat reform programme designed to transform the loosely knit Ottoman Empire into a more efficient and centralized state. Aided by the penetration of European capital which served to integrate what had previously been a subsistence agricultural economy into the world markets, this had the dual effect of encouraging the settlement of the nomadic population while weakening the tribal fabric of society, all of which enhanced attempts by the Ottoman authorities in the nineteenth century to redress the imbalance of power between state and society.

The second major development was the destruction of the Ottoman Empire and its replacement in Iraq with the British mandate in 1921. Iraq was given all the trappings of a modern state: boundaries, a constitution, a monarchy, a bicameral legislature, an administration staffed with British advisers, and a security apparatus.

One of the most striking features of the work of the Development Division of the BMEO in the Middle East in the 1940s and 1950s is its awareness of the limitations to promoting growth. This attitude found its roots in the various failures and frustrations of the immediate postwar period, especially in Iran and Iraq. These frustrations continued in Jordan as shown by the struggles to scale down the extent of development policy in the fields of forestry and irrigation. However, the addition of a modest aid budget in Jordan combined with the continuation of a waning but still influential British diplomatic presence in the country gave the BMEO a chance to implement its own counter-approach, based on the premise that sustainable economic progress would best evolve from small-scale, incremental changes. As Crawford stated in a letter to the Foreign Office justifying the rather unspectacular approach of his band of technicians in that country: ‘For years, development in the Middle East has been bedeviled by the fetish of long-term planning for large development works. The Village Loans Scheme … [is] proof that development in the Middle East is generally at its best when it is the sum of a number of smaller projects.’ For the BMEO, small-scale development held out several advantages. It reduced the possibility that British assistance would become the target of political opposition and, therefore, allowed for a more unfettered environment within which to work. It also allowed a country like Jordan with limited capacity, financial and otherwise, to assume greater responsibility for its own development, thus promoting, in a gradual way, self-reliance.

In the last half of the twentieth century, the world community underwent a remarkable expansion. Sparked by the declining capacity of western powers to maintain the colonial project, the rise of colonial nationalist movements in Asia, the Middle East and Africa, and the more general changes in the structure and ideology of the international system epitomized by the creation of the United Nations in 1945, state after state on the periphery began to acquire its political independence. As this process of decolonization progressed, a new phase emerged grounded in the desire of these countries to back up their newly found political independence with economic viability. It is this – the development phase of the postwar world – which sets the scene for what follows.

Transforming these former satellites into modern states was a monumental task. Life for the majority of its people was insecure, ‘nasty, brutish and short’ with disease and starvation ever-present realities. In the West, it had taken a cumulative process over centuries to alleviate such conditions. With the onset of decolonization, however, which brought the plight of the non-western world to the doorsteps of the West, this past reliance on a ‘natural’ process of growth and development was no longer felt acceptable nor conducive in the long run to global stability. In its place, a more positivistic notion emerged that ‘development’ should be systematically pursued, induced and accelerated, a notion reinforced by the belief that ‘modernity’, soon to be represented in the Third World by planners, Third World technocrats, and foreign aid workers, now possessed the means to pull the ‘undeveloped’ world out of the depths of poverty.

The Second World War is seen as the decisive turning point in the ‘decline, revival and fall’ of the British Empire. Nowhere was this more true than in the Middle East. With the crushing of revolt in Iraq, the making of cabinets in Egypt, the imposition of extensive economic control through the auspices of the Middle East Supply Centre, and the flooding of the region with British troops and personnel, British power in the Middle East had never been so visible nor so extensive and stood in stark contrast to the interwar period when the exertion of British power had been relatively indirect and restrained. This expansion of British influence intensified the already strong resentment in the region towards the British presence and gave impetus to a more radical strain of Arab nationalism whose footsoldiers were the lower and emerging middle classes most affected by the inflation and general economic dislocation of the war and postwar world. It was these – the economic sources of political discontent in the Middle East – which the British found particularly worrying and suggested to many the need for a new approach to the maintenance of British influence in the region. As Lord Altrincham, Britain's Minister of State in the Middle East during the latter part of the war, concluded: ‘In the preoccupation of fighting for our life … we have allowed the contrast between wealth and poverty to reach a dangerous state … Another Arabi will arise if this long deterioration is not effectively reversed.’

Modernization and development have been an integral part of Iran's modern history. In the nineteenth century, Iran had been a weak and fragmented state over which a monarch reigned but in many ways did not rule. Saddled with divisions along geographic, ethnic, religious, and linguistic lines, Iran's rulers were never able to consolidate the power of the central state, let alone pursue a policy of integration and development. Neither were there strong westernizing influences from Europe to act as an imposed catalyst for change, certainly in comparison to the Ottoman Empire which found itself caught up in the whole Eastern Question. The result was the formation of a state in nineteenth-century Iran which has been described as ‘pre-modern’.

A change of dynasties after the First World War which brought Reza Shah Pahlavi to power ushered in a period of intense socio-economic and state-led reform that continued until the overthrow of the Pahlavi dynasty in the Iranian Revolution of 1979. The only notable exception to this general trend were the years between 1941 to 1953 which most concern us here. Mirroring the étatist policies of Ataturk in neighbouring Turkey, Reza Shah initiated a state-led modernization programme aimed at integrating the country through the establishment of a modernized military, an enlarged bureaucracy, an improved system of infrastructure, and an industrial base. By the outbreak of the Second World War, it appeared as though Iran had travelled a considerable distance down this road to modernity.

As was the case throughout the region, the Second World War revealed the shaky foundations on which Reza Shah's ‘modern’ Iran had been built.