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60-721: The Mixed Courts had Codes, based on a civil law format inspired by the French Civil Code and British common law but with significant Islamic and local principles. Without suppressing the Consular courts - which would have been diplomatically impossible - the Mixed Courts were intended to streamline legal issues between foreign nationals, and between foreigners and Egyptians. Three courts were established in Cairo , Mansoura and in Alexandria ;

120-635: A new criminal code was issued under Napoleon. As with the Penal Code of 1791 , it did not contain provisions for religious crimes, incest, or homosexuality. The French Revolution's Declaration of the Rights of Man and of the Citizen enunciated the presumption of innocence until found guilty. Concerned by the possibility of arbitrary arrest and detention , or excessive remand , Napoleon remarked that care should be taken to preserve personal freedoms, especially before

180-576: A European country with a civil-law legal system ; it was preceded by the Codex Maximilianeus bavaricus civilis ( Bavaria , 1756), the Allgemeines Landrecht ( Prussia , 1794), and the West Galician Code ( Galicia , then part of Austria , 1797). It was, however, the first modern legal code to be adopted with a pan-European scope, and it strongly influenced the law of many of

240-612: A chaotic situation. Their immediate effect was to make the Capitulatory Regime in Egypt less intolerable, because their establishment cured many ills, and stopped the fraudulent pursuit of claims by foreigners against the Egyptian government and other public Egyptian organisations. A step forward in the unity of jurisdiction was the establishment of the Native courts in 1883, using codes based on

300-596: A civil code. For this commission, Cambacérès (now Second Consul), and Napoleon himself chaired the plenary sessions. After this process finished, the Code was sent to the Legislative Body as a preliminary bill in December 1801, where it was rejected by a vote of 142 to 139. In response, Napoleon announced on 2 January 1802 that he was suspending all projects, effectively closing the assemblies' sessions; simultaneously, he went to

360-543: A code of civil laws common for the entire realm." However, it was the National Convention in 1793 which established a special commission headed by Jean-Jacques-Régis de Cambacérès to oversee the drafting process. His drafts of 1793 (for which Cambacérès had been given a one month deadline), 1794, and 1796 were all rejected by a National Convention and the French Directory of the time was more preoccupied with

420-469: A code; secondly, the creation of new codes encounters a kind of law of diminishing returns in that, the more progress that is made in the development of new codes, the trickier it becomes to determine in which code particular provisions should be located; and, finally, it is clear that certain kinds of provision [...] are unsuitable for codification, since codification makes sense only when it involves provisions that possess sufficient generality. A year later,

480-542: A fundamental change in the nature of the civil law legal system , making laws clearer and more accessible . It also superseded the former conflict between royal legislative power and, particularly in the final years before the Revolution, protests by judges representing views and privileges of the social classes to which they belonged. Such conflict led the Revolutionaries to take a negative view of judges making law. This

540-498: A lawyer for the defendants who did not have one. (Failing to do so nullified the proceedings.) Whether or not the Cour d'assises , which judges severe crimes, should operate with a jury was a topic of considerable controversy. Napoleon supported jury trials (or petit jury ), and they were finally adopted. On the other hand, Napoleon opposed the indictment jury (" grand jury " of common law countries), and preferred to assign this task to

600-495: A legislative nature (see above). With regard to family, the code established the supremacy of the husband over his wife and children, the status quo in Europe at the time. Women had even fewer rights than children. Divorce by mutual consent was abolished in 1804. The draft Military Code was presented to Napoleon by the special commission headed by Pierre Daru in June 1805; however, as

660-635: A proper channel of dispute settlement existed between foreigners, and between foreigners and natives. Parties felt that disputes should be left to settlement by the courts. They became conscious of having certain loosely defined rights. The practice of free legal aid meant that no one was denied justice through an ability to pay. Further, enforcement litigants could see that redress was available and real. The Mixed Courts had only lasted for 74 years, an insignificant period of time in comparison to Egyptian history, but covering years of profound change in Egypt, and often initiating or facilitating such change. 1949 saw

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720-617: A public service code ( code général de la fonction publique ). Even though the Napoleonic Code was not the first civil code, it was the first modern legal code to be widely adopted in Europe, and it influenced the law of many of the countries formed during and after the Napoleonic Wars . In the German regions on the west bank of the Rhine ( Rhenish Palatinate and Prussian Rhine Province ),

780-489: Is reflected in the Napoleonic Code provision prohibiting judges from deciding a case by way of introducing a general rule (Article 5), since the creation of general rules is an exercise of legislative and not of judicial power . In theory, there is thus no case law in France. However, the courts still had to fill in the gaps in the laws and regulations and, indeed, were prohibited from refusing to do so (Article 4). Moreover, both

840-403: Is the principal source of legislation, and thus it follows that a more “Islamic” interpretation of the law will be in evidence. The Mixed Courts interpreted their codes in an Egyptian manner; the difference now is that an Islamic view, rather than simply an Egyptian one, will be taken, even though it can be argued that as the quality and confidence of the Egyptian judiciary grew in the years to 1949

900-652: The Corpus Juris Civilis , and within it, the Institutes . The Institutes divide into the law of: Similarly, the Napoleonic Code divided the law into four sections: Before the Napoleonic Code, France did not have a single set of laws ; law consisted mainly of local customs, sometimes officially compiled in "custumals" ( coutumes ), notably the Custom of Paris . There were also exemptions, privileges , and special charters granted by kings or other feudal lords. With

960-547: The British Occupation of 1882 . The 1883 Codes were based on those of 1875, and the judges, mostly Egyptian, tended to follow the Mixed Courts’ interpretation of the law. The Mixed Courts, by being the foremost judicial authority between 1875 and 1949 (when their functions were transferred to new National Courts) sat in times of political and social change in Egypt. Their decisions reflect the human and commercial history of

1020-500: The Commission supérieure de codification to reflect in its annual report for 2011: The Commission observes that the age of drawing up new codes is probably reaching its end. The aim of a nearly complete codification of the law is no longer pursued, for three reasons: firstly, the technical developments by which texts are provided in non-physical form offer to users modes of access that are comparable in many ways to those available through

1080-769: The French Code Napoléon , especially the Civil Code of Lower Canada (replaced in 1994 by the Civil Code of Quebec ), mainly derived from the Coutume de Paris , which the British continued to use in Canada following the 1763 Treaty of Paris . However, most of the laws in Latin American countries are not heavily influenced on the Napoleonic Code, as the Spanish and Portuguese versions of

1140-558: The Sénat conservateur to berate its members. These tactics cowed the legislature into submission, and gave Napoleon the majority he needed. The code finally came into effect on 21 March 1804. The process developed mainly out of the various customs, but was inspired by Justinian's sixth-century codification of Roman law , the Corpus Juris Civilis and, within that, Justinian's Code ( Codex ). The Napoleonic Code, however, differed from Justinian's in important ways: The Napoleonic Code marked

1200-786: The War of the Third Coalition progressed, the code was put aside and never implemented. In 1791, Louis Michel le Peletier de Saint-Fargeau presented a new criminal code to the National Constituent Assembly . He explained that it outlawed only "true crimes", and not "phony offences created by superstition, feudalism, the tax system, and [royal] despotism ". He did not list the crimes "created by superstition". The new penal code did not mention blasphemy , heresy , sacrilege , witchcraft , incest , or homosexuality , which led to these former offences being swiftly decriminalised. In 1810,

1260-504: The Civil Code in this form is nearly 3,000 pages, available in print and online. Additional material, including scholarly articles, is added in the larger "expert ( expert )" version and the still larger "mega ( méga )" version, both of which are available in print and on searchable CD-ROM . By this stage, it has been suggested, the Civil Code has become "less a book than a database". The sheer number of codes, together with digitisation, led

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1320-514: The Commission recommended that, after its current codification projects were completed, there should not be any further codes; an additional reason was government delay in publishing reforms that the Commission had completed. The government responded encouragingly in March 2013, but the Commission complains that this has not been followed through; in particular, that the government has abandoned its plan for

1380-645: The Courts, when they have committed them in the exercise of their functions, or in abusing their functions. The greater number of cases were still heard by the Consular Courts ." Well before the closure of the Mixed Courts Abd El-Razzak El-Sanhuri Pasha was appointed as chairman of the Committee set up to draft a new Civil Code. He was assisted by many Egyptian jurists, and also by E Lambert,

1440-777: The Egyptian legal system after the Second World War and until the present day would be quite different. French Civil Code The Napoleonic Code ( French : Code Napoléon ), officially the Civil Code of the French ( French : Code civil des Français ; simply referred to as Code civil ), is the French civil code established during the French Consulate in 1804 and still in force in France, although heavily and frequently amended since its inception. Although Napoleon himself

1500-462: The French jurist. The result of this work was the 1949 Egyptian civil code, of 1149 Articles. The background to this eclectic and monumental work has already been described by Sanhouri himself. The 1949 Code was based on a mixture of the previous Mixed and Native codes, together with Egyptian jurisprudence, the Shari’a and various foreign codes from nearly 20 countries. The code was specifically drafted with

1560-498: The Imperial Court: "these courts would have a great strength, they should be prohibited from abusing this situation against weak citizens without connections." However, remand still was usual for defendants suspected of serious crimes such as murder. The possibility of lengthy remand periods was one criticism, particularly voiced in common law countries, of the Napoleonic Code and its de facto presumption of guilt . Another reason

1620-536: The Mixed Codes. The Native courts and the Mixed Courts were national Egyptian courts. On their merger they became the National Courts. Thus, giving justice in the name of Egypt, the Mixed Courts were Egyptian courts, and entitled to be regarded as such. Their codes were Egyptian codes and, together with the precedent that arose, were applied as Egyptian law to be used in the forum set aside for “mixed” disputes. There

1680-427: The Mixed Courts had themselves encouraged the critical analysis, close reasoning, and scholarly research that had led to an educated elite of lawyers in Egypt. Those trained in law were at the front of nationalism, and in a way the Mixed Courts encouraged the very freedom of thought, independence of action, and respect for a national and sovereign rule of law which fostered much of the moderate nationalist opinion. By 1937

1740-478: The Mixed Courts having very limited Jurisdiction in Criminal Matters. It only extended to simple police cases (contraventions), and to (1) offenses committed directly against the judges and officers of the Courts while in the exercise of their functions, as force or violence or bribery; (2) offense committed directly against the execution of the judgements of the Courts; (3) crimes imputed to judges and officers of

1800-557: The Revolution, the last vestiges of feudalism were abolished. Specifically, as to civil law, the many different bodies of law used in different parts of France were to be replaced by a single legal code. The Constituent Assembly on 5 October 1790 voted for a codification of French laws, the Constitution of 1791 promised one, and the National Assembly adopted a unanimous resolution on 4 September 1791 providing that "there shall be

1860-411: The Shari’a in mind so that non-Islamic provisions were not consistent with it. Thus it may be seen that the custom of the country was upheld as a source of law, and natural law and equity, a major basis of Mixed Court jurisprudence, were both expressly included. In recent years, however, the overriding factor has been Islamic law, and this is now enshrined in the 1971 Constitution, as amended. The Shari’a

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1920-553: The area, and involved complicated issues of law. The problems of sovereign immunity, sequestration of enemy property, international banking and maritime commerce were shadowed by the recognition and enforcement of divorces, legitimacy, and marriage contracts affecting people of different religions and nationalities. In between were a whole range of the usual types of legal disputes, such as trademarks and patents, and industrial injuries, without any developed theories at all that could be drawn upon for inspiration, either from inside or outside

1980-475: The civil code formed the foundation of the Latin American legal systems e.g. the Chilean , Mexican , and Puerto Rican civil codes. In Mauritius , the Civil Code, which originates from the Napoleonic Code, represents an important primary source of law and provides for the rights of individuals, matrimonial regimes, contract law, and property law, amongst others. The French Civil Code was extended to Mauritius under

2040-447: The code and legislation have required judicial interpretation. Thus a vast body of case law has come into existence, but without any rule of stare decisis . The preliminary article of the code established certain important provisions regarding the rule of law . Laws could be applied only if they had been duly promulgated , and then only if they had previously been officially published (including provisions for publishing delays, given

2100-615: The countries formed during and after the Napoleonic Wars . The Napoleonic Code influenced developing countries outside Europe attempting to modernise and defeudalise their countries through legal reforms, such as those in the Middle East , while in Latin America the Spanish and Portuguese had established their own versions of the civil code. The categories of the Napoleonic Code were not drawn from earlier French law, but instead from Justinian's sixth-century codification of Roman law ,

2160-635: The country. What, if anything, did the Mixed Courts contribute to the present Egyptian codes? "The laws that were administered by the courts were now divided into 5 codes: (1) the Civil Code, (2) the Commercial Code, (3) the Maritime Code, (4) the Code of Procedure as regards the foregoing Codes, (5) the Penal Code." The greatest change in 1949 was the Civil Code. The Maritime and the Commerce Codes were

2220-637: The criminal division of the Court of Appeals . Special courts were created to judge criminals who might intimidate the jury. The French codes, now more than 60 in number, are frequently amended, as well as judicially re-interpreted . Therefore, for over a century all of the codes in force have been documented in the annually revised editions published by Dalloz (Paris). These editions consist of thorough annotations , with references to other codes, relevant statutes , judicial decisions (even if unpublished), and international instruments. The "small ( petit )" version of

2280-411: The few documents that have influenced the whole world. The Napoleonic Code is often portrayed to be one of the most widespread systems of law in the world, claimed to be in force in various forms in about 120 countries, but many of those countries are civil code countries that had their own version of their civil code for centuries. The Napoleonic Code was not the first legal code to be established in

2340-558: The former Duchy of Berg and the Grand Duchy of Baden , the Napoleonic Code was influential until the introduction of the Bürgerliches Gesetzbuch in 1900 as the first common civil code for the entire German Empire . A number of factors have been shown by Arvind and Stirton to have had a determinative role in the decision by the German states to receive the code, including territorial concerns, Napoleonic control and influence,

2400-433: The means of communication available at the time). In brief, no secret laws were authorised. It prohibited ex post facto laws (i.e. laws that apply to events that occurred before their introduction). The code also prohibited judges from refusing to do justice on grounds of the insufficiency of the law, thereby encouraging them to interpret the law. On the other hand, it also prohibited judges from making general judgements of

2460-524: The merger of the Mixed Courts was agreed, by 1949 it was taking place. In essence, this was true culmination of the 1875 reforms. From the beginnings of the Mixed Courts in 1875, to the Native Courts in 1883, and the Montreux Convention reforms in 1937, the various jurisdictions of the Egyptian legal system drew closer together, while at the same time foreign consular jurisdiction lessened. Finally,

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2520-465: The old ones retained from 1883, and the Penal Code had been gradually updated. The Criminal Codes differed from the other codes because it was only administered by the Mixed Courts to a slight extent; "because foreign governments were not willing to abandon their Civil Jurisdiction of their Consuls, therefore they were unwilling to give up the Criminal Code. This resulted in a compromise and what led to

2580-424: The penultimate step in providing Egypt with a unified and modernized system of law, definitely Egyptian but clearly Western influenced. The years 1926 to 1937 were years of great change. As the period drew to a close the final chapter in the history of the Mixed Courts began. In the 1920s they had seemed set to endure forever, but by the 1930s rapid and radical political change had sounded a warning note. In many ways

2640-490: The proceedings were held in French. Judges were appointed by the Khedive from leading Egyptian and foreign candidates. "The judiciary was at all times under the authority of the rulers of Egypt." There were three districts. The establishment of the courts, hearing disputes between Egyptians and foreigners and between foreigners of different nationalities, was so successful that new, so-called Native courts were set up in 1883, after

2700-504: The prosecution; however, criminal justice in European countries in those days tended to repression. For instance, it was only in 1836 that prisoners charged with a felony were given a formal right to counsel in England . In comparison, article 294 of the Napoleonic Code of Criminal Procedure allowed the defendant access to a lawyer before a Cour d'assises , and mandated the court to appoint

2760-505: The publication of the Code under the title "Code Civil Mauricien." In the United States, the legal system is largely based on English common law . But the state of Louisiana is unique in having a strong influence from French and Spanish legal traditions on its civil code . Spanish and French colonial forces quarreled over Louisiana during most of the 1700s, with Spain ultimately ceding the territory to France in 1800, which in turn sold

2820-413: The ruler, was above the law was radical change for Egypt in the 1870s. Foreign influence, and diplomatic and political claims against the Egyptian government, gave unscrupulous foreigners rights quite inconsistent with natural justice and equity. However, the establishment of the Mixed Courts reduced foreign abuse of the Egyptian system. Egypt before 1875 was a battleground of powerful forces. Foreign power

2880-487: The strength of central state institutions, a feudal economy and society, rule by liberal ( enlightened despotic ) rulers, nativism among the governing elites, and popular anti-French sentiment . A civil code with Napoleonic code influences was also adopted in 1864 in Romania , and remained in force until 2011. The term "Napoleonic Code" is also used to refer to legal codes of other jurisdictions that are influenced by

2940-505: The territory to the United States in 1803. The 10th Amendment to the U.S. Constitution grants states control of laws not specifically given to the federal government, so Louisiana's legal system retains many French elements. Examples of the practical legal differences between Louisiana and the other states include the bar exam and legal standards of practice for attorneys in Louisiana being significantly different from other states; Louisiana

3000-538: The testator's freedom to dispose of the free portion of his estate. It was rejected. Napoleon's victory at the Battle of Marengo allowed him to consolidate his power in France Returning to Paris, he appointed on 12 August 1800 a commission of distinguished jurists and politicians, including fr:Jacques de Maleville , François Denis Tronchet , Félix-Julien-Jean Bigot de Préameneu , Jean-Étienne-Marie Portalis to draft

3060-558: The title Code Napoléon by decree of Charles Mathieu Isidore Decaen , Capitaine-General , on 21 April 1808. The Code was modified and embodied in Chapter 179 of the Revised Laws of Mauritius 1945, edited by Sir Charlton Lane, former Chief Justice of Mauritius. The 1808 decree was repealed by Act 9 of 1983, but the Revision of Laws Act which was enacted in 1974, made provision, in section 7, for

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3120-410: The turmoil resulting from various wars and strife with other European powers. The first draft contained 719 articles and was very revolutionary, but was rejected for being too technical and criticised for not being radical or philosophical enough. The second, with only 297 articles, was rejected for being too brief and was criticised for being a mere manual of morals. The third, expanded to 1,104 articles,

3180-540: The type of natural law and equity which was applied in the Mixed Courts was likely to be a blend of Muslim and Christian principles that eventually became more Muslim than Christian. The judges were not simply technicians, but interpreted rules, customs, and laws to give justice in Egypt. The 1949 code confirmed or re-established the Islamic viewpoint, and can be seen as influenced by the Mixed Courts jurisprudence only indirectly. The Mixed Courts were established in 1875 to reform

3240-639: The whole of Egypt's legal system became unified in 1956. The Mixed Courts paved the way for this to happen by the gradual cycle of reform, development and reform. The fusion of the Mixed and Native Courts provided an up-to-date and solid system. The Mixed Courts established the rule of law in Egypt, developed a truly Egyptian court system and were the base on which the post-war Egyptian legal system rests. Their direct influence has waned and receded, but without their existence and work between 1875 and 1949, and without their conscientious and dedicated development and operation,

3300-437: Was a continuous creation, evolution, and progress in the law so that judgments were by no means restricted to simple interpretation of the relevant codes. Judgments were oriented towards the litigant. The question was, could the law help the parties and not, could the parties fit in with the written codes or existing law? People were no longer afraid of litigation, and the foremost principle of the rule of law, that no one, not even

3360-420: Was not directly involved in the drafting of the Code, as it was drafted by a commission of four eminent jurists, he chaired many of the commission's plenary sessions, and his support was crucial to its passage into law. The code, with its stress on clearly written and accessible law, was a major milestone in the abolition of the previous patchwork of feudal laws. Historian Robert Holtman regards it as one of

3420-440: Was often exercised at the expense of Egyptian sovereignty. All this changed after 1875, as order grew from disorder and legal confidence was established. The Mixed Courts imposed the rule of law and thus began the transition of Egypt from a feudal country into a modern and structured state, with a legal climate conducive to commercial and social progress. One of the reasons the judgments of the Mixed Courts were respected and trusted

3480-447: Was presented under the conservative Directory regime, but never even came up for discussion. Another commission, established in December 1799 established a fourth outline drafted in part by Jean-Ignace Jacqueminot  [ fr ] (1754–1813). Jacqueminot's draft, the so-called loi Jacqueminot , dealt almost exclusively with persons and emphasised the need to reform the divorce laws, to strengthen parental authority and increase

3540-436: Was that they were not seen by Egyptians as foreign law. In a slow and gradual way the consensus of Egyptian opinion shifted from favor to abolition. The Mixed Courts still had enough familiar principles to retain the confidence of the foreign community. An efficient system of law and enforcement obviated any necessity for self-help. Egypt was a notoriously litigious country. It was to the benefit of her inhabitants from 1875 that

3600-401: Was the combination of magistrate and prosecutor into a single role. However, with the work of the juge d'instruction accomplished, the trial itself did not have the same de jure presumption of guilt; for instance, the juror's oath explicitly required jurors not betray the interests of the defendants or ignore their defence. The rules governing court proceedings gave significant power to

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