Chapter 4 sources of law

Chapter 4

Sources of Egyptian Law

1- Legislation definition • Legislation satisfies the requirement of natural

justice that laws shall be known before they are enforced.

• The second respect in which legislation is superior to all other sources, is that it can, by way of anticipation , make rules for cases that have not yet arisen.

• Legislation has many disadvantages, but its basic one is that it is rigid, it does not develop automatically, and at one time it happens that legislation does not adapt to the national feelings and to the practical life and needs of the people.

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1- Legislation – kinds Kinds of Legislations: Ordinary and Subordinate

Legislation:Legislation is either ordinary or subordinate. Ordinary legislation is that which proceeds from the

supreme legislative authority in the state. The ordinary legislative authority may be a Parliament (as in England), a congress (as in U.S.A.), or a People's Assembly (as in Egypt). It may consist of one or of two houses.

Thus, in England the Parliament consists of: the House of Commons and the House of Lords. In the Egypt there is only one house: The people's Assembly.

Ordinary legislation cannot be repealed or amended by any authority inferior to the authority which enacted it. 3

1- Legislation – kinds Subordinate legislation is that which proceeds from any

authority other than the supreme legislative power, and is therefore dependent for its continued existence and validity on some superior authority and is usually called: regulation .

Regulations may be executive or municipal.A Statute occasionally entrusts to some department of the

executive authority the duty of supplementing the statutory provisions by the issue of more detailed regulation bearing on the same matter . This regulation is an executive regulations .

Municipal or local authorities are entrusted by the law with powers of establishing special rules for the districts under their control. These rules are called: municipal regulations.

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1- Legislation – codes Codification:To codify the law is to put all legal rules which deal with a

particular matter in the form. of a code. A code is a complete body of written rules. Thus, all the legal rules which organize the relations of ordinary people among themselves including the rules of contracts, real rights, civil liability are embodied in the Civil Code.

All the rules of law determining crimes and punishment are embodied in a Penal Code.

Codification makes it easy to find the rule of law applicable it; a particular case. But its basic disadvantage is that it hinders the development of the law with the progress of society. 5

The enactment of ordinary legislation

Proposal Approval Non veto of president

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1- Legislation – power • Power to legislate. The Egyptian Constitution declares in

article 86 that the power to legislate is entrusted to the People's Assembly.

• To enact a legislation, certain steps must be taken :• The proposal: A proposal for the enactment of a legislation

may be introduced to the People's Assembly either by the President of the Republic or by a member of the assembly.

• Such proposal is then referred to the related committee for study and preparation of a report to be submitted to the assembly for discussion and voting. In order that a proposal may be passed as a legislation, it must be approved by the absolute majority of the members attending the session.

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1- Legislation – power • After such approval, the proposal is sent to the

president of the Republic to promulgate it. • The President has the power during 30 days to reject

the proposal and to send it back to the People's Assembly for further study or consideration.

• If it is approved in the second reading by two thirds of all the members of the people Assembly member, the law should be approved.

• If the proposal was approved, by the president, the proposal is considered to be a complete legislation and must be promulgated.

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1 – Legislation Promulgation is an order issued by the President of the

Republic stating the fact that the legislation has been approved by the People's Assembly, and ordering it to be published in a special journal for publishing legislations called: The official Journal.

When the legislation is published in the Official Journal, it is considered as binding after a month of such publication, unless it is stated otherwise in the text of the legislation itself.

Once the legislation is published in the official Journal, it is deemed to be known to every person, and all person are bound to obey it. No one can plead ignorance of the legislation in order to escape its being applied to him.

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President Vs ordinary Legislations

President make law

Authorization Emergency case

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President enacting legislation

1. There should be an authorization from the people Assembly

2. In cases of necessity 3. The authorization should be for a limited

period of time and specific issue 4. Submitted to the people Assembly in the first

session following the end of the period of the authorization

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Emergency legislations • People assembly is not present • Emergency arises requiring a quick response • The president will issue law by himself

according to article 147• Have to be submitted to the people’s

Assembly within 15 days • Non submission = cancelation of law with

retro active effect unless the people assembly agree otherwise

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Conditions Emergency legislations

1. Necessity 2. People assembly not present 3. Non violation of the constitution 4. Submitted to the people Assembly5. Without a prior authorization – sole

will of the president

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General Binding Ancient Conformity Custom

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2- Custom Custom is a long and generally observed course of conduct.

It comes into being gradually as it is called by the natural needs of the people. It contains the rules which people have found suitable to the circumstances of their life. It is generally obeyed by individuals and believed to be obligatory, and any deviation from it is felt to be abnormal.

Advantages and disadvantages of the custom:Custom is the expression and the declaration of the will of

the Society.But rules of custom are sometimes obscure and not easily

accessible. Also they may not change quickly in accordance with the sudden and quick changes of the Society.

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2- Custom Requisites of a valid custom:In order that a custom be valid and operative as a source of law, it

must fulfill the following requirements:1 - It must be general :the course of conduct must be observed by

all the individuals living in a certain place. Such place may be a whole country, and may be a district or a town. When a custom is limited to a special part of the state, it is called local custom. Sometimes, a custom concerns only a group of persons: merchants for example, and it is called then . professional custom.

2 - The custom must be considered by those who observe it as binding, and not merely optional.

It must have been followed with the conviction that it is obligatory. If such conviction does not exist, and those who follow it hold themselves free to depart from it whenever they like, it is not a source of law. 16

2- Custom • 3- It must be ancient.• To be a custom, the course of conduct must have

been followed during a long time. Custom is immemorial when its origin is so ancient that the beginning of it is beyond human memory, so that no living person can remember when it did begin.

• 4- Conformity with legislation:• The custom must not be contrary to an

imperative rule of the legislation . The authority of legislation is higher than that of custom.

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3- principles of Islamic Sharia • In Egypt the principles of Islamic Shari is a formal

source of law. In absence of a provision of a legislation and customary rule, the judge will give his judgment according to the principles of Islamic Sharia.

• It must be borne in mind that according to article 2 of the Egyptian constitution, Principles of Islamic Sharia is the basic source of legislation, in the sense that the legislator must base the legislations which he enacts on the principles of Sharia.

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4- principles of equity and natural law

• Natural law and rules of equity are ideal rules which can be known only by Reason. It is that which justice, good faith and vivid conscience require in a certain case.

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Sources of Egyptian law

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Sources of Egyptian Law

Formal

Constitution legislation

Custom Principles of Islamic law

Principles of natural law and

equity

Informal

Courts decisions Doctrine

1. Former court decisions (Judicial Precedents)

The function of courts is to apply the law not to make it, and thus, court decisions do not create law. The judge in rendering his decision does not legislate or make a new law, but simply applies the principles of law created before his judgment.

A decision has binding force only in the case in which it is rendered, but it has no authority in another cases, either before the same court or before another court, even of a lower grade.

But although precedents have no binding authority, courts usual take them into consideration, and parties generally invoke them in support of their claims, especially when they are rendered by a higher court.

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2- Scientific Opinions (Doctrine).• Law is not interpreted only by courts, but is

also discussed by jurists and particularly by professors who teach law in Universities.

• The opinions of jurists are not binding and have no authority upon the courts. Nevertheless, these opinions have some influence and they are usually considered by the courts as an aid to apply the law correctly.

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