FromThe Law and Politics Book Review
Vol. 8 No. 11 (November 1998) pp. 409-411.
THE RULE OF LAW IN THE ARAB WORLD: COURTS IN EGYPT AND THE GULF by Nathan J. Brown. Cambridge, UK: Cambridge University Press, 1997. Cloth $59.95. 258 pages. ISBN: 0-521-59026-4.
Reviewed by Robert W. Walker, Department of Political Science, University of North Texas. E-mail: Rwalker@students.cas.unt.edu.
The importance of courts and judicial politics to understanding institutional structures and their impact on political and economic struggles is a topic of increasing concern in recent years. Many scholars have equated democracy, market economies, and the "rule of law." In an attempt to unpack this puzzle, Nathan J. Brown compiles evidence that notions of judicial independence and the rule of law are indeed fungible and that the role of the judiciary is relative to the political system, rather than some esteemed absolute "rule of law." Furthering such an inquiry, Brown has undertaken a difficult and admirable task in the collection of materials on the Egyptian judiciary, and to a lesser extent, the judicial systems of Qatar and Kuwait (with some discussion of Bahrain and the United Arab Emirates in Chapter 5). The central concern of Brown's book is an examination of the development, through time, of the Egyptian judicial system, with brief emphasis, in later chapters (Chapter 6), on similar dynamics in the Qatari and Kuwaiti judiciaries (partially resulting from the later development of the judiciary in Qatar and Kuwait).
Specifically, Brown tests three theoretical perspectives argued to explain the development of the Egyptian judicial system from British colonial rule to the present. The first perspective embodies elements of imperialism to suggest that imperial powers, in the Egyptian case, the British, imposed the rule of law and the judicial system as an element in a larger scheme of ensuring that property rights and favorable treatment for foreigners would continue even after independence. The second perspective suggests that the Egyptian judicial system emerged along liberal lines to regularize authority, guarantee property rights, and decrease uncertainty in economic relationships (c.f. North 1981; 1990). The third perspective suggests that the Egyptian judicial system grew out of the efforts of local elites to centralize authority and secure dominion for specific groups or classes: the judiciary serves a malleable legitimating function for a given (and often fluid) political order. In testing these theories, Brown relies upon the combination of the timing of innovations, the nature of institutions built, and the writings of the founders of the modern judicial system. He further examines the significant political figures playing important roles in the construction of the Egyptian judicial system through the last 125 years.
Brown finds that, of the three competing explanations, the most appropriate is that the Egyptian judicial system grew out of efforts by the national elite to construct a seemingly independent judiciary that could (and occasionally did) limit the authority of the executive branch and yet bolster state power and control. In theory, the independent judiciary, and its positivist orientation, provided a useful tool for the establishment of clear and consistent legal foundations that were allowed to extend throughout all levels of society. However, some danger arises in ceding such powers to an independent corporate entity within the political system. Thus, the independence of the judiciary is still subject to some elements of veto power from the executive.
Specifically, the judiciary is still required to request funds and is subject to reappointment (with very short terms, 2 to 3 years in many cases). Furthermore, the executive reserves the right to refer cases, often of a politically sensitive nature, to military tribunals and revolutionary courts. In fact, both Sadat and Mubarak have made frequent use of the "non-judicial" judiciary when the outcome of the trial is more important than the means by which outcomes are obtained.
Brown further examines public attitudes toward the judiciary with an analysis of citizen and business activity in the Egyptian courts. In sum, Brown finds that the average citizen quite commonly initiates legal action as just one among many tools for dispute resolution. As he puts it: "Their (the judiciary's) procedures and rules appear as opportunities for increasing tactical mobility more than they represent fairness and justice" (238). So far as business groups are concerned, Brown suggests that the socialist era has yet to disappear as average citizens find the courts more useful than most with commercial needs for the court.
The work is ambitious insofar as it attempts to trace the origins of the Egyptian court system to the desires of the national elite and their efforts to avoid complete domination by the imperial powers. Furthermore, the book avoids the frequent descriptive and prescriptive tones of works on the establishment of liberal legality without tying such developments to the larger institutional context. Finally, the exhaustive analysis of the Egyptian courts through time allows one a sense of how the courts have responded to a variety of regimes with vastly different political priorities. Furthermore, the relevance of the Egyptian court system to the diffusion of judicial institutions in the Arab world and the way in which Egyptian judicial officials contributed to the construction and development of the court systems in Qatar, Kuwait, Bahrain, and the United Arab Emirates allows for interesting speculation about the importation and diffusion of successful institutions across national boundaries, assuming similar needs within the political systems.
Another interesting point concerns the measurement and study of judicial independence in comparative perspective. Brown is clear in the statement that measurements of judicial independence must encompass the judiciary's place in the larger political context (242). The ability of the judiciary to circumscribe executive authority is subject to the discretion of the executive for standing in the court and, as previously mentioned, this is no trivial detail. In the trial of Islamicist elements suspected to have been involved in the assassination of Anwar Sadat, the brutality in ascertaining confessions compelled the court to view the confessions as inadmissible. Furthermore, a history of throwing out cases because of improper investigative techniques has caused the regime to look for other methods of trying criminals beyond the judicial system, or the judicialized judiciary, more aptly military courts, politically appointed courts and the like.
However, the book is not without shortcomings. The inclusion of Bahrain and the United Arab Emirates begs further explication as the amount of attention paid is scant by comparison. In addition, while the purpose of the work is comparative, and the description of business and citizen activities in the courts works within this rubric, the historical development of the Kuwaiti and Qatari courts leaves quite a bit to be desired. Second, the historical evolution of the Egyptian judicial system leaves the reader wanting for alternate viewpoints on the factors that contributed to the modern day Egyptian courts.
One basic theoretical difficulty concerns the exclusivity of perspectives. While Brown is clear that the arrival of judicial institutions by imposition is not a compelling explanation for the Egyptian courts, elements of complicity between local and imperial elites do not receive adequate attention. While Brown is correct in surmising that imperial imposition threatens to remove the citizens from their history, he does not attempt to incorporate a clear strain of the imperialism argument. More specifically, this argument suggests that the core of a dominated state will forward the objectives of the imperial power through methods which bolster the local elites power while augmenting the dependence of the colony on the colonizers (i.e. Galtung 1971).
A further problem concerns the interplay between Western and Islamic approaches to law. While Brown pays considerable attention to the mechanisms by which the shari'a and French civil law influenced the construction of Egyptian law, he pays inadequate attention to the mechanisms by which similar phenomena were repeated in the other countries he studies. Finally, I was left wanting with the brief and incomplete
description of the moderation of Islamic law through the development of domestic legal institutions.
In conclusion, the book is an impressive work in compiling archival resources to study the development of the Egyptian judiciary over time from a wide variety of sources including newspapers and journals, as well as foreign ministry correspondence from the U.S., France, and Great Britain. His analysis of change in the role of the judiciary over time represents a significant contribution to the role of judicial systems in political and economic development. Thus, the work is of interest to a broad variety of scholars interested in politics and law, Middle Eastern politics, and factors influencing modernization, more generally.
Galtung, Johan. 1971. "A Structural Theory of Imperialism" Journal of Peace Research 8: 81-117.
North, Douglass C. 1981. Structure and Change in Economic History. New York, NY: W. W. Norton.
North, Douglass C. 1990. Institutions, Institutional Change and Economic Performance (Political Economy of Institutions and Decisions). Cambridge, UK: Cambridge University Press.