WHO IS A LAWYER?

The history of modern law in Egypt is commonly reduced to that of two judicial bodies: the Mixed Courts (1876–1949) and the National Courts (1883–present). The Mixed Courts enjoyed jurisdiction over all “litigation which involves foreign interest.”Footnote ² Judges from various European countries, in addition to the United States, presided over the Mixed Courts, and applied its legal code, which was a synthesis of several continental European laws. The National Courts, on the other hand, were established shortly after the 1882 British occupation of Egypt as a comprehensive multitiered judicial system that adjudicated cases involving subjects of the local government. After the termination of the Mixed Courts in 1949, the National Courts came to enjoy universal jurisdiction over all persons in Egypt, thus giving way to the contemporary Egyptian judiciary.Footnote ³

Historians cite two reasons for considering these two institutions the first modern judicial bodies in Egypt. First, they were theoretically independent from other branches of government. Thus, they conformed to the liberal ideal of the separation of judicial powers from legislative and executive powers.Footnote ⁴ Second, they adopted legislations that resembled, or were derived from, contemporary European codes of law. It is worth noting that even scholars who acknowledged the significance of 19th-century judicial reforms continued to overlook the active participation of legal practitioners in sustaining the functions of those state-enacted judicial bodies.Footnote ⁵

The most obvious reason for not considering pre-1876 legal practice as relevant to the history of modern law in Egypt may be the absence of the formal markers of professionalism, namely, “institutionalization” and “common credentials.”Footnote ⁶ Because bar associationsFootnote ⁷ and specialized law trainingFootnote ⁸ were only established in Egypt in or after 1876, it is understandable that historians searching for the origins of the legal profession took that year as their starting point. The fact that the Ottoman center had adopted a law to organize the legal profession, and that a provision in the Hanafi law-based Civil Code, the Mecelle, “instructed… judge[s] to appoint an ad hoc attorney” to nonattending defendants lent further support to the impression that modern lawyering had become a possibility only in the mid-1870s.Footnote ⁹ By extension, when the archival record presented historians with instances of legal representation, they dismissed them as necessarily unprofessional aberrations. This attitude is exemplified in the scholarly treatment of the figure of the wakīl. As I will show in the remainder of this article, wakīls had been performing a range of lawyerly tasks for over a decade before the formal institutionalization of the legal profession. Moreover, they executed these tasks in similar, if not identical ways, to those of post-1876 lawyers, who shunned the title wakīl and replaced it with the new designations muḥāmī and avūkātū (Italian: avvocato).

Adopting new professional titles was consistent with the emergence of a new semantic field in Egypt during the last decades of the long nineteenth century. Yoav Di-Capua notes that inventing fixed meanings for hitherto multilayered words was a critical means towards disassociation from the Ottoman realm, and participating in modern political action on a national scale.Footnote ¹⁰ To relate this process to the field of law, let us turn to the two most influential authors who laid the foundation of the authoritative narrative of the development of the legal profession: Ahmad Fathi Zaghlul (1863–1914) and ʿAziz Khanki (1873–1956). Both were law degree holders and practicing lawyers who were interested in documenting the history of their own profession. Born to a landowning family, Zaghlul traveled to France at the age of twenty to study law and returned four years later with a licence en droit to join the staff of the newly established National Courts. In 1900, he published his book on the history of the legal profession in Egypt, al-Muhamah (The Legal Profession), which continues to hold a canonical status among legal historians today. Notably, Zaghlul was also an admirer of ideas of racial and civilizational hierarchy, translating into Arabic Edmond Demolins’ À quoi tient la supériorité des Anglo-Saxons? (Anglo-Saxon Superiority: To What It Is Due) and Gustav Le Bon's Les lois psychologiques de l'évolution des peoples (The Psychology of the Peoples).Footnote ¹¹ ʿAziz Khanki, the other main contributor to this dominant narrative, had a comparable professional background. He graduated from the Egyptian Law School, worked as a lawyer, and was an enthusiastic campaigner for the establishment of the National Bar Association in 1912. Khanki documented the history of the judiciary and the legal profession in several books such as al-Muhamah Qadiman wa Hadithan (The Legal Profession in the Past and the Present) and al-Tashri ʿ wa-l-Qada ʾ Qabl Insha ʾ al-Mahakim al-Ahliyya (Legislation and the Administration of Justice Before the Establishment of the National Courts).Footnote ¹² Living to see the crumbling of the Ottoman Empire, he wrote glowingly about republican Turkey, comparing Ataturk to the leaders of the French Revolution and praising him for successfully transforming Turkey “from an autocracy to a democracy … from a religious [regime] to a civil [one]. From divine law to positive law.”Footnote ¹³

Zaghlul and Khanki prided themselves on belonging to the earliest cohorts of law school graduates who dominated the court system in 20th-century Egypt. Their subscription to ideas of historical linearity and societal evolution contributed to their sense of pride. The historical accounts they authored were self-congratulatory, stressing the position of their generation as the pioneers of the modern legal profession. This worldview is best reflected in Zaghlul's dedication of about a quarter of his al-Muhamah to a comparative discussion of the legal profession “in Western nations.”Footnote ¹⁴ And, while he realized the shallow roots of this profession in parts of Europe such as Switzerland and Turkey, he still found the contrast significant with “the Eastern nations,” where the legal profession enjoyed less prominence and respect. Zaghlul argued that “the degree of civilization and the strength of abiding by the law” accounted for this difference.Footnote ¹⁵ Accordingly, establishing a corps of lawyers who matched the levels of technical training and professionalism of their European counterparts constituted a significant professional advancement and closed a civilizational gap.

Zaghlul's influential historical account of the legal profession was based on original research in the Egyptian State Archive (al-Daftarkhana al-Misriyya), which he conducted in 1899.Footnote ¹⁶ In his book, al-Muhamah, he constructed a detailed account of the administrative structure of the 19th-century judicial system. One of his main findings was that “lawyers” did not exist before 1876. Instead, individuals who claimed to have legal expertise but whose services hardly resembled those of professional lawyers populated the judicial system.Footnote ¹⁷ He therefore concluded that a complete rupture existed between his generation of modern lawyers and their “unprofessional” predecessors.

Surprisingly, Zaghlul's argument remains largely accepted. Contemporary historians revised only the conventional wisdom about post-1876 legal history. In effect, they unwittingly accepted Zaghlul and Khanki's claim that the mid-19th century judiciary was unable, for systemic reasons, to introduce the legal profession “as we know it.”Footnote ¹⁸ Even historians who conducted archival research did not consult pre-1876 collections. To mention one example, Latifa Salim's widely cited al-Nizam al-Qada ʾi al-Misri al-Hadith (The Modern Egyptian Judicial System) did not consult any archival collections predating the establishment of the Mixed Courts, except for a small number of published state ordinances regarding judicial organization. In fact, her discussion of the mid-19th century relies entirely on British colonial records and Egyptian 20th-century sources, where Zaghlul and Khanki's influence features prominently.Footnote ¹⁹

In writing the history of the legal profession, scholars did not consider practical credentials such as the ability to synthesize complex legal arguments or to resort to legal exegeses to interpret the letter of the law. Rather, they agreed on three formal qualifications that distinguished lawyers historically. The first formal qualification was graduation from a specialized law school. It took a full decade after the establishment of the National Courts in 1883 for this condition to be fulfilled universally. Initially, the courts were more concerned with defining the powers of lawyers than with defining their qualifications. Ultimately, two Advocates Laws were issued, the first in 1888 and the second in 1893. The latter stipulated that a full member of the profession had to earn a law degree either from the Khedival Law School or from a comparable foreign law school.Footnote ²⁰ The second formal qualification was organization in an independent professional organization. Initially, the Mixed Bar Association, which consisted of European lawyers who practiced before the Mixed Courts, was established in 1876. A national bar association was created only in 1912. Attached to the law that established it was a memorandum that explained the logic behind the association.

In addition to their educational credentials and bar association membership, lawyers were expected to practice their profession on a full-time basis, to the exclusion of any other (supplementary) vocation. This particular criterion of the “modern” lawyer was intended to eliminate the possibility of a conflict of interest. For example, a lawyer who is also a government employee might not be in a position to represent a client who is suing the government. It was also meant to promote the reputation of the profession through distinguishing definitively between legitimate professionals and nonprofessional practitioners. Hence, Zaghlul explains, lawyers were instructed not to mix socially with brokers and merchants whose occupations were inherently exploitative.Footnote ²²

Thus, pre-1876 legal practitioners emerged as the inverse image of the aforementioned lawyer in all three domains: education, association, and reputation. Zaghlul stresses the abysmal state of their legal knowledge:

Furthermore, “they were not a distinguished clique, had no distinguished qualities and followed no law.”Footnote ²⁴ Even wakīls who practiced before merchant courts, and who, according to Zaghlul, came closest to resembling modern lawyers, were nothing more than an arrested development because these courts did not set satisfactory standards for legal representation. Hence, when presented with the opportunity to join the ranks of modern lawyers, those wakīls failed to make use of it.Footnote ²⁵ Their lack of association could be linked to their third major failing: reputation. An anecdote that supported this claim is attributed to Ibrahim al-Hilbawi (1858–1940), the first president of the National Bar Association and a contemporary of Zaghlul and Khanki. In 1887, al-Hilbawi proposed to a Circassian concubine at the khedival palace. Her peers were confused about what a lawyer did for a living. To satisfy their curiosity their officer explained to them that a lawyer was a “forger and a swindler.”Footnote ²⁶

An effective revision of this dominant narrative should address its fundamental flaws. As it stands, this narrative relies disproportionately on top-down sources, such as ordinances that reflected the state's normative plans for organizing the judiciary but contained little or no information on legal practice. In addition, it adopted a rigid definition of the legal profession with the intention of distinguishing “real” lawyers from imposters. This definition suited well the goals of the first wave of historians, who were also proud members of the new institutionalized legal profession.Footnote ²⁷ In response, this article provides an alternative narrative based primarily on reconstructing legal practice. As such, its findings are centered on the content of historical legal arguments and procedures rather than their compliance with forms of professional organization.Footnote ²⁸

The focus on legal practice is partly a function of our limited knowledge about pre-1876 wakīls. Although Court proceedings record their names, there is sparse information about their educational and career trajectories. A notable exception is Tito Figari, who is known to us because he joined an education mission to France that the khedival government organized in 1855. Such missions had started under Egypt's powerful Ottoman governor Mehmed Ali (r. 1805–48) in 1818, and continued under his successors throughout the 19th century, with the purpose of supplying the khedival government with highly qualified technical and administrative cadres. The son of an Italian resident in Egypt, Figari joined the 1855 mission to study law in France, but unlike most of his colleagues who assumed government positions upon their return to Egypt, he pursued a career as a wakīl starting in the early 1860s.Footnote ²⁹ Inside Egypt, the study of “European legal subjects” was available as early as 1836 through the School of Languages and Translation, although it “remained a purely academic exercise” until the 1870s.Footnote ³⁰ Still, in addition to official educational channels, prospective wakīls had access to modern legal texts, most importantly the Napoleonic Code, which was translated by Rifaʿa al-Tahtawi and a cohort of his students in the mid-1860s.Footnote ³¹ While the Code constituted civil, rather than commercial law, it contained a number of universally applicable legal principles. For example, it prohibited the retroactive application of law, and compelled judges to adjudicate cases solely on the basis of the legal code, regardless of any perceived insufficiency. Moreover, the Napoleonic Code originally included rules of civil procedure, which were brought up occasionally in merchant court proceedings. Additionally, because legal representation was allowed in both the merchant courts and the European consular courts, legal practitioners moving back and forth between these two court networks contributed to the dissemination of legal knowledge and norms.Footnote ³²

LEGAL LANGUAGE INSIDE THE COURTROOM

Until the 19th century, a vast network of shariʿa courts constituted the core of the Ottoman judicial landscape, including Egypt. The courts adjudicated private legal disputes according to shariʿa methods and, when appropriate, to sultanic law (qānūn). Complementary to this network were non-Muslim communal courts that could hear cases in which the disputants were coreligionists,Footnote ³³ and European consular courts that ruled on cases in which at least the defendant was a European. Legal representation was not unknown in this legal regime although, in line with the dominant opinion in Hanafi law, a representative had to be approved by the disputants, and even then his mandate was limited to deputizing and interpreting, rather than advocacy.Footnote ³⁴ One function of multilingual dragomans was to participate in Ottoman court sessions where consular subjects were involved.Footnote ³⁵ Business agents, also known as wakīls, registered trade deals on behalf of their employers.Footnote ³⁶

The Ottoman legal regime underwent an extensive process of reconfiguration starting in the 1830s, with the introduction and elaboration of new, multitiered judicial forums that applied new legal codes, and the simultaneous confinement of shariʿa court jurisdiction to issues of personal status. Significantly, these legal developments would follow independent albeit parallel trajectories in Istanbul and Cairo. Whereas the Ottoman center issued new penal, civil, and commercial codes, which were largely derived from their Napoleonic equivalents, the Cairo-based khedives adopted those Ottoman codes only in conjunction with their own Egypt-specific edicts. Furthermore, independent of the Ottoman Nizamiye court system, they established a network of state-organized judicial councils (majālis al-siyāsa).Footnote ³⁷ The merchant courts (majālis al-tujjār) were one specialized branch of these councils.

A main impetus behind creating the merchant courts was to allow European creditors to legally collect outstanding debts with local merchants.Footnote ³⁸ Therefore, the courts were presided over by an equal number of local and European merchants, and they deployed a mixture of French, Ottoman, and khedival state laws. Most importantly for our purposes, they were the only judicial bodies that explicitly authorized legal counsel before 1876. The merchant courts’ first statute, issued in 1845, stated that the plaintiff and the defendant must be present in person during the court session. “It is not allowed for either one [of the litigants] to have someone else represent them unless their absence was permissible according to established norms [al-a ʿdhār allatī tuqbal bi-muqtaḍā al-uṣūl].”Footnote ³⁹ Although not specified in the statute, examining actual court cases suggests that travel and physical disability were the only acceptable excuses. A later round of reorganization in 1857 erased this condition altogether. From that date onward, “[when] dealing with claims in the merchant court, lawyers [avūkātiyya, sing. avūkātū] are not permitted to enter [the courtroom]. The litigants submit their [written] claims in person or via a wakīl who holds a [written] authorization [sanad tawkīl].”Footnote ⁴⁰ In 1864, a new statute was issued. It reiterated the requirement that a wakīl must hold a written authorization but gave litigants and their wakīls the right to participate in court hearings. In addition, it renewed the ban on avūkātūs while confirming the legality of wakīl representation.Footnote ⁴¹

Evidently, then, legal counsel was allowed for over a decade before the establishment of the Mixed Courts. However, beyond this general statement, what legal practice entailed seems elusive. Why was a certain kind of legal practitioner, the wakīl, allowed, and another, the avūkātū, excluded? What is the difference between these two occupations? If formal job titles are ambiguous, can the historian locate this difference through examining legal practices?

One way to begin answering these questions is to establish why a lawyer, in our case, the avūkātū, was banned from participating in the merchant courts. It is obvious at this point that the absence of lawyers from court records does not mean that they did not exist, as multiple explicit mentions of lawyers in merchant court statutes since the late 1850s prove. The most plausible explanation lies in a similar ban on lawyers in the 18th-century merchant court of Paris. In A Revolution in Commerce, Amalia Kessler describes the merchant court's “existential dilemma.” The court was founded on the premise that resolving disputes between individual merchants was conditional upon establishing good faith between the disputants. These resolutions would restore harmony among merchants. At the same time, the merchant court's existence attested to the prevalence of intermerchant disputes. As a result, its function amounted to an admission of the necessity of policing merchants. In order to reconcile this fundamental contradiction in its raison d’être, the court adopted internal regulations that paid due regard to the ideal of merchant fraternity, while simultaneously acknowledging the need to police their actions.Footnote ⁴² Chief among these regulations was the decision to do without lawyers. According to this logic, “merchant litigants, required to argue on their own behalf, would be forced to speak the simple truth, instead of relying on lawyers to couch their claims in complex legal fictions and technicalities.”Footnote ⁴³ This logic survived into the 19th century, contributing to French legal debates, which in turn became part of contemporaneous Ottoman legal reforms.

It is conceivable that the origins of this ban on lawyers lay outside the immediate experience of 19th-century merchant courts in Egypt. The purposeful rejection of avūkātūs in the courts’ statutes was the legacy of French-inspired legal reformers who were familiar with the vocation of lawyers but who wished to avoid lawyers’ potentially harmful knowledge. In fact, despite the explicit ban on avūkātūs, a few actually appear in the proceedings of merchant court cases. These rare occurrences have added to the confusion, leading at least one historian to conclude that courts were lax in enforcing their own rules, and that foreign merchants enjoyed undue influence over the court due to their possession of extraterritorial privileges. Abusing these rights, the argument goes, foreign merchants disregarded the court's regulations and hired lawyers to represent them. Forced to recognize the foreigners’ special legal status, the court had no choice but to allow this transgression.Footnote ⁴⁴

A closer examination of what might have seemed initially an inconsistency in upholding the courts’ rules provides a revealing insight into the history of legal practice. The case was brought to court by Philip De Casera al-avūkātū, who was suing Shaykh Hasanayn Hamza for not paying him his dues after he represented him before the court in an earlier case. Philip's self-designation as an avūkātū is critical. An avūkātū was not allowed to practice law in this capacity before the merchant courts. Yet there was no law that prevented an avūkātū from suing others in his personal capacity. De Casera was a legal practitioner who represented various litigants before the merchant court during the early 1870s. For example, on 6 February 1874, several months before he sued Hamza, De Casera had represented a group of Manchester merchants in their case against a certain Joseph Juzil, a subject of the Egyptian government.Footnote ⁴⁵ On 21 January 1876, a year after his dispute with Hamza, De Casera represented two local merchants, ʿAbduh Niʿma and Jirjis Niqula, in a case made against them by Jirjis Yusuf.Footnote ⁴⁶ In these cases and others,Footnote ⁴⁷ De Casera always presented himself to the merchant court as a wakīl, not as an avūkātū. Regardless of his clients’ nationalities, doing otherwise would have disqualified him from representing them in the court. However, in his capacity as a litigant, De Casera was not restricted by those rules and was free to adopt a title of his choosing. Hence, he identified himself as an avūkātū knowing that the merchant court would not conflate his legally distinct personas as litigant and as legal practitioner.

The concept of wakāla, from which the title wakīl is derived, is established in Islamic law, and means “to commission, depute or authorize a person to act on behalf of another.”Footnote ⁴⁸ Therefore, the term is ubiquitous in pre-19th-century shariʿa court records, including in relation to commercial cases. The prevalence of the term is probably the reason why Zaghlul and his proponents have consistently chosen to understand the wakīl’s function in the mid-19th-century merchant courts as that of a business agent or deputy. In that respect, they accurately accounted for the appearance in court of business associates and blood relatives, a continuation of a centuries-old custom in shariʿa courts. They also correctly understood the roles of specialized wakīls who represented creditors (wakīl al-dayyāna) and estates (wakīl al-tarika). While those specialized wakīls performed lawyerly functions, their engagement with the legal regime was incidental and temporary. They were merchants or creditors who performed clerical/legal roles only as a means to sort out a current unsettled debt before returning to their standing moneymaking businesses. Given the focus of these researchers, they have hitherto missed a second group of unmarked wakīls who neither were business partners to their clients, nor enjoyed any claim over the unsettled debts and inheritances being disputed in court. Rather, they represented litigants in court through the power of attorney in exchange for a fee. I argue that those unmarked wakīls were effectively the forerunners of the post-1876 legal profession.

To grasp the full context, however, let us consider these two groups in order, starting with specialized wakīls. Cases of bankruptcy were common in the merchant court and many such cases included several creditors. In order to facilitate a settlement between the various creditors and the insolvent debtor, creditors delegated one of them, wakīl al-dayyāna, to act as their representative and they were bound to comply with the settlement he reached. Ideally, one wakīl represented all of the creditors. However, creditors often disagreed among themselves, leading different groups within them to nominate their own wakīls. When several wakīls collaborated on one case, further disagreements were expected. In this situation, what determined which wakīl, or group of wakīls, would prevail was the total percentage of the debt that their nominators owned collectively. Court records confirm that this provision was carried out consistently.

In April 1862, Hajj Muhammad Abu Hadid, an oil merchant based in Cairo's Ghuriyya quarter, stopped paying his debts to a number of European creditors. The merchant court ruled him insolvent, launching a process of debt settlement. His creditors agreed to designate two of them, khawājas by the names Aslan and Kakulani, to serve as wukalā al-dayyāna. After Abu Hadid's goods and possessions (mawjūdāt) had been inventoried, Aslan and Kakulani negotiated a settlement with him. They agreed that due to his financial losses, the creditors would forgive half of his debts. They would also grant him an eight-month grace period, after which he was to pay his debts over the next ten months. As security for his debt, they had him mortgage his own home, which was located in the Barquqiyya neighborhood. When informed of the deal some of the creditors rejected it. However, the court decided that because the creditors who owned three quarters of the debt consented to the terms of the settlement, it became binding to the rest.Footnote ⁴⁹

Moreover, when the creditors did not agree on who would act as wakīl al-dayyāna, the court typically assigned one of its own members, a merchant, to serve as a temporary (waqtī) wakīl. This was the case especially when the creditors themselves did not bring the case of insolvency to court or, probably, when they did not expect the court to declare the defendant bankrupt in its final ruling. When a temporary wakīl was appointed, the creditors were given fifteen days to organize and elect a permanent wakīl from among them. In March 1862, around the same time that Abu Hadid was declared bankrupt, another oil merchant from Ghuriyya, Ibrahim al-Tayyib, was also facing financial troubles. In his case, instead of going to court, most of his creditors agreed with him on a debt payment arrangement. Khawaja Istiliano, a creditor who did not find the arrangement satisfactory, resorted to the merchant court, asking it to declare Ibrahim al-Tayyib bankrupt. The court granted Istiliano's request. Because most of the creditors did not initiate the case, the court had to take several steps in order to launch the debt settlement. It designated Istiliano and another creditor, Aslan, as wukalā al-dayyāna temporarily. It also appointed Hajj Muhammad al-Jurbaji, one of the members of the merchant court and the head of the merchants at the oil market in Ghuriyya, as bankruptcy trustee (ma ʾmūr al-taflīsa). In accordance with the Ottoman Code of Commerce, Istiliano, Aslan, and al-Jurbaji were asked to collaborate on establishing al-Tayyib's financial standing and presenting the court with his budget. As trustee, al-Jurbaji was asked to convene all the creditors within fifteen days in order to agree on how they would proceed with the case, and whether they endorsed Istiliano and Aslan as wakīls. The creditors were informed that their failure to attend that meeting would deprive them of their right to participate in formulating the debt settlement.Footnote ⁵⁰ The exact procedures followed in this case were routinely followed in similar cases.

The court's urge to let the creditors collectively decide on how to solve the case could be deceptive. The court reserved the right to intervene in two major ways to ensure that the proposed resolution was consistent with its mandate and with the law. First, as we have seen in Ibrahim al-Tayyib's case, it appointed a bankruptcy trustee, who was almost always one of its own presiding members. While it was the wakīl who was responsible for reaching a deal with the insolvent debtor in terms of payback schedule and, quite often, the exact amount of a partial reprieve, the bankruptcy trustee was responsible for liquidating the insolvent debtor's assets so as to ensure the fulfillment of the agreement. He was also the link between the creditors and the court. He informed the court in writing of the exact terms of the settlement in the form of a memorandum (sharḥ). One such document was written by Muhammad al-Jurbaji, whom we met earlier. On 7 May 1874, he presented the court with a detailed account of the state of a certain Amin Yasin's bankruptcy. He ascertained that enough of the creditors agreed to the wakīls’ proposal to forgive 80 percent of his debts. He also ensured that Yasin was able to pay the remaining 20 percent. The wakīl al-dayyāna valued Yasin's current inventory of goods at a certain amount and established that his business still had an outstanding debt. Al-Jurbaji also listed the names of all twelve creditors and the exact credit amounts they claimed. Next, this explanatory memo was transcribed in the official court record. The court's final decision stated that “all legal steps have been fulfilled” (ṣ ār istīfā kāffat al-ijrā ʾāt al-qānūniyya). It ruled that Yasin was able to reclaim the keys to his stores, thus signaling the successful resolution of the case.Footnote ⁵¹

Second, the court saw cases in which a debtor complained about what he deemed to be the illegal transgressions of a wakīl. A telling example is the case of Hasan al-Shirbini, which opened this article. The core of the case was that Hasan was dissatisfied with the way his wakīl al-dayyāna, Muhammad Shumays, settled the debt. According to Hasan, there was no point in appointing Muhammad as a wakīl in the first place, since he was his only creditor and was only representing himself. Instead of requesting the owed money, or negotiating a settlement, Muhammad immediately confiscated his registers, traded his goods and equipment, and sold out his storage house to “one of his acquaintances” (shakhṣ min maḥāsībihi). He also auctioned Hasan's house and jailed him at the merchant court for fraud. The case ended with the debt being repaid and the store and other possessions returned, as we have seen earlier.Footnote ⁵² But the main point remains that the court found it within its jurisdiction to regulate the work of the wakīl al-dayyāna and to reverse his decisions in case they were unsound from a legal point of view.

Inheritance-related disputes are often mistakenly considered as falling exclusively within the jurisdiction of the shariʿa, or other confessional, courts. Even during the mid-19th century this issue confused some potential litigants as in the case of Hajj ʿUbayd ʿAbd Rab al-Masih who died before paying back a debt he owed to Khawaja Mansur. Mansur resorted to the merchant court to demand his money. Upon identifying the parties as local subjects, in this case Coptic Christians, the court explained to the plaintiff that he chose the wrong judicial forum and referred the case to the Coptic Patriarchate (baṭrīq khānat al-aqbāṭ) to decide on it. In explaining their decision, the judges wrote the following in the case summary: “it is known that the current norms [stipulate that merchant courts have jurisdiction over] Europeans’ credit claims over the estates of the subjects of the local government, especially when the inheritors include minors.”Footnote ⁵³ In other words, merchant courts saw cases raised by foreigners against deceased local merchants’ estates. This explains why another kind of wakīl—wakīl al-tarika—showed up in the merchant court.

Instead of involving every inheritor individually in the case, one person, the wakīl al-tarika, represented the estate. There is no record of how this wakīl was chosen. But merchant court cases consistently show one person speaking on behalf of the estate. This wakīl was responsible for presenting legal evidence that confirmed or denied the existence of such debt, its amount, and any agreements regarding the schedule of payment. Sometimes the wakīl’s job was straightforward and only included ensuring that papers were in order. For example, consider the case of ʿAli Bey Raghib's estate. Topologlou Zigarah, a Greek, presented his consulate with a promissory note (sanad) proving that ʿAli Bey owed him a certain sum that he had borrowed in order to buy unnamed goods. The consulate forwarded Topologlou's claim to the merchant court, which in turn contacted ʿAli Bey's widow and inheritor. Her response, delivered via her wakīl, was: “if the khawāja [Topologlou] brought the note and we verified [ʿAli Bey's] seal and signature, we will pay the demanded sum.”Footnote ⁵⁴

Not all cases were that straightforward but, even in more complicated cases, formulating a complex legal argument was not common. Such was the case with Saʿd Qurra's inheritance and simultaneous debt to al-Sayyid Muhammad al-ʿAwwad. Saʿd, a local merchant, died leaving behind several wives and a number of minor children. At the time of his death, he owed a fellow merchant, al-Sayyid Muhammad, the price of a horse (rahawān) and a shipment of cotton he had bought on credit, among other debts. Upon hearing the news of his death, al-Sayyid Muhammad went to the merchant court of Alexandria to establish his claim on the money. Because the estate was not represented, he automatically won the case. When informed of the court's decision, Saʿd's wives, who were also his primary inheritors, decided to challenge the court's ruling. Their wakīls, however, must have realized that reversing the court's decision was beyond their own expertise. As far as they were concerned, Saʿd's registers proved that he owed the amount in question to al-Sayyid Muhammad.Footnote ⁵⁵ The course of action available to them is a useful segue to our exploration of a different corps of wakīls.

UNMARKED WAKĪLS AS LEGAL PRACTITIONERS

Evidently, then, the wakīl al-dayyāna and wakīl al-tarika performed clerical aspects of legal practice and negotiated financial settlements, activities that would become an integral part of the function of the members of the institutionalized legal profession after 1876. However, these specialized wakīls never engaged in formulating complex legal arguments. The latter pursuit was exclusively the territory of a yet to be defined corps of unmarked wakīls.Footnote ⁵⁶ It is possible to distinguish between specialized wakīls, such as the wakīl al-tarika, and unmarked wakīls because they performed different functions. Furthermore, the terms on which they collaborated in court are understandable. Ideally, their roles were complementary rather than competitive. For example, the wakīl al-dayyāna was an incidental and temporary post. He had to be a creditor in the case at hand and his responsibilities were limited to negotiating a settlement. He did not assume any authority once the case was closed. On the other hand, the unmarked wakīl could be a person who has no personal stake in the case but is hired based on his track record or reputation, in exchange for a fee. What is the significance of distinguishing between these two general categories of wakīls? And, how can we tell the difference between them?

Let us return to the case of the deceased Saʿd Qurra and his alleged creditor al-Sayyid Muhammad al-ʿAwwad. In the previous section, we left the wukalā al-tarika wondering how they could prove that al-Sayyid Muhammad's claims were unfounded. Based on Saʿd's records alone, there was no dispute over al-Sayyid Muhammad's right. Having acknowledged the authenticity of the records and left to their own devices, the inheritors’ wakīls failed to challenge the court ruling. After the court had specified a date to hear their complaint, they did not show up at the court. Hence, the court dismissed their request. Thanks to the court's statute that allowed for representation, they later reopened the case with the help of a legal practitioner: a wakīl who had greater facility with commercial law. Thus, ʿAbduh Effendi entered the case as the wakīl representing the wakīls of Saʿd Qurra's inheritors. The hiring of ʿAbduh Effendi hinted at a fiercer round of litigation that would involve legal efforts more subtle than checking if old records included erasures or additions. In anticipation of this escalation, al-Sayyid Muhammad hired his own wakīl, a similarly adept legal practitioner by the name of Khawaja Kabis. The most remarkable feature of ʿAbduh and Kabis's contest was that they transformed this dispute into one about legal procedure.

The Cairo merchant court, in its capacity as Court of Appeals (Majlis al-Abillu), received both ʿAbduh and Kabis, as wakīls for the litigating parties on 9 September 1875. The first to speak was Kabis, who “raised a procedural point” (rafa ʿa mas ʾala far ʿiyya). He argued that his opponent's request to appeal the Alexandria court's in-abstentia ruling was unsound because he did not specify the justifications for his request. Hence, Kabis continued, his request was “void and must be denied.” ʿAbduh responded that the decision of the court of first instance did not specify any reasons because it dismissed the case rather than provide a substantive ruling. Therefore, he added, there was no chance to be more specific. Convinced by ʿAbduh's argument, the court agreed to hear the case two weeks later. In the following session, ʿAbduh revealed his strategy to challenge the court's initial decision, which had required his clients to pay back al-Sayyid Muhammad. The strategy was to avoid discussing the debt under consideration while questioning the jurisdiction of the court on procedural grounds. Accordingly, ʿAbduh raised two procedural points. First, he argued that both parties, Saʿd Qurra and al-Sayyid Muhammad al-ʿAwwad, were subjects of the local government. Therefore, the dispute between them fell outside the jurisdiction of the merchant court and within that of the shariʿa court. Second, if the court decided that it enjoyed jurisdiction over this dispute, he demanded to examine al-Sayyid Muhammad's accounting ledgers because the court's initial ruling was based solely on his client's registers. ʿAbduh knew that he could reverse the court's initial ruling if he found inconsistencies such as “erasures, mark-overs or insertions” (maḥw wa-ithbāt wa-taḥshīr) in these ledgers. In response, Kabis showed his own familiarity with legal procedure. He explained that resorting to the merchant court was legally sound because “the plaintiff [i.e., al-Sayyid Muhammad] is a merchant and the deceased [i.e., Saʿd] was a merchant.” The merchant court was the appropriate judicial venue to rule on the case because both parties to the disputes were merchants, regardless of their nationalities. Addressing the second procedural issue, Kabis insisted that examining his client's registers was unnecessary because Saʿd's records constituted sufficient proof of the debt's existence. The court was divided over the case but ultimately a majority of the eight merchants presiding over the court accepted Kabis's arguments.Footnote ⁵⁷

More significant than who won the case is how the legal battle was fought and who fought it. It is obvious that procedural matters such as jurisdiction rather than substantive issues were at the center of this battle. It is also clear that the main protagonists were not the litigants but the legal practitioners they hired to represent them. It is highly improbable that ʿAbduh and Kabis, the wakīls we encountered earlier, were either partners or relatives of their clients. Each of them appeared in numerous cases to represent clients of different nationalities and businesses. It is the character of these protagonists, the unmarked wakīls, that we need to scrutinize.

Treating wakīls as a single monolithic group would be incorrect. Wakīl practices should be understood as a proxy for the legal knowledge they possessed. Mining the court records for traces of wakīl practices reveals three noticeable points of comparison. First, while wakīls did not claim to belong to an institutionalized profession, the court recognized their status as practitioners and allowed them to offer legal counsel and represent clients. Unmarked wakīls fell into one of two categories: those who had links to the litigant such as being his or her business partner or heir, and those with a primarily contractual relationship to the litigant. Second, while wakīls belonging to these categories had the same legal status and were expected to perform the same duties, they performed their tasks in qualitatively different ways. One made occasional references to applicable laws. His appearance in court was limited to the one or two cases in which his relation/client resorted to the court to settle a dispute with a fellow merchant. The other cited applicable laws more heavily and in more sophisticated ways. He appeared frequently in court to represent different clients who were of different nationalities and who engaged in different types of business. Third, the emergence of this difference between two types of wakīls emerged gradually during the third quarter of the 19th century. Court records from the 1850s refer exclusively to wakīls of the first kind. References to laws are few and far between and are usually reflexive. By the early 1860s, the second kind of wakīl increasingly appeared alongside the first, and on the eve of the opening of the Mixed Courts in 1876 it had become the norm.

Some references to law were so common that they must have been widely known to the merchants who frequented the court, be they judges or litigants. Their use does not necessarily suggest deep knowledge of the relevant commercial laws. Rather, it more likely points to an understanding on the side of merchant-litigants that they were a necessary formality or, at best, an added layer of legitimacy to their claims. At any rate, referring to these legal references did not reflect an attempt to synthesize an argument as much as to request the direct application of the law. The best example of this use is Articles 147 and 150 of the Ottoman Code of Commerce.Footnote ⁵⁸ These articles were referred to consistently in cases of declaring bankruptcy (ishhār al-iflās). That they were common knowledge is clear from the fact that their use was not limited to wakīls.Footnote ⁵⁹ Significantly, even in cases where the plaintiff did not mention those articles, either personally or through a wakīl, the court made sure to mention them in its decision. For example, on 28 February 1872 a number of creditors complained at the court that “ʿAbd-al-Malik and his son Hanna, merchants [based] at al-Hamzawi,” had stopped paying their debts. The court record does not mention whether the plaintiffs referenced any laws. It states only that they presented documents that proved the validity of their claims. The documents were most probably promissory notes or accounting ledgers. However, the court lists the bases upon which it ruled to declare ʿAbd al-Malik and his son bankrupt. Those were “the documents pertaining to the case [awrāq al-qaḍiya] and Articles 147 and 150 of the Ottoman Code of Commerce.”Footnote ⁶⁰ Interestingly, in this and similar cases the content of these articles is never spelled out. Their mention was meant to instigate the direct application of the law, namely, declaring bankruptcy. Moreover, none of the court cases consulted for this study suggest that the interpretation of these articles was contested.

As common as it was, legal practitioners did not restrict themselves to this reflexive use of the law. They demonstrated a more sophisticated understanding of the law in several ways: they mentioned uncommon law articles, referred to a combination of laws in relation to one point, explained the relationship between legal articles in different codes, and cited legal exegeses in order to give authority to a particular reading of the law. Furthermore, their preoccupation with procedure anticipated similar developments in the Ottoman center where a procedural code was issued in 1879 in the context of the Nizamiye Courts,Footnote ⁶¹ and in Palestine where turn-of-the-20th-century shariʿa courts witnessed increasingly sophisticated engagements with procedural matters on the part of wakīls.Footnote ⁶²

To illustrate how legal practitioners deployed their knowledge of the law by combining these techniques, let us consider two final examples from the Cairo merchant court. We encountered earlier the case of Hasan al-Shirbini vs. Muhammad Shumays, as an example of how one of the responsibilities of the court was to ensure that cases of bankruptcy were handled properly, and that the court-sanctioned resolutions of such cases did not include any transgression against the insolvent merchants. Here, we are interested in the performance of legal practitioners inside the courtroom. Hasan and Muhammad did not argue directly with each other in court but did so through their wakīls. Caritato, Hasan's wakīl, understood the core of the case well. His client had borrowed money from Muhammad and did not pay it back. Instead of negotiating a settlement, Muhammad took control of Hasan's possessions and sold or mortgaged them. When Hasan hired Caritato he must have asked him in nontechnical terms for what he believed was rightly his: his possessions and a compensation for his losses. Caritato had to deliver this message in legal language in court. Hence, after he listed his client's demands, he made the following statement:

Caritato's statement is noteworthy for two reasons. First, to back his claim, he did not resort to the legal codes the court had identified as authoritative, namely, the Ottoman and French Codes of Commerce. Rather, he referred to the French Code of Civil Law, an Arabic translation of which had been circulating since 1867. Second, he did not find it sufficient to list the legal articles he was referring to but he explained their gist. Significantly, in order to lend his claim more weight, he went a step further.

Caritato proceeded to cite more of Bidard's legal exegeses, extending his demand for fair compensation beyond the value of the damaged and confiscated possessions. His client, he argued, deserved compensation for his injured reputation. Caritato tried to win the case by overwhelming the court with legal reasons that proved the validity of his claim. He also wanted to convey to the court that his argument was sound because he was deeply familiar with the law. Suspecting that the judges were not familiar with these fine legal points, he felt compelled to explain every article or juristic reference. On the other side, the plaintiff's wakīl, ʿAbduh, was either ignorant of these points or realized that they would not convince the court members. His rebuttal seemed less impressive in that it did not display specific knowledge of the law. Rather, he appealed to a well-known legal principle. “Legally, every merchant who is unable to pay his debts is bankrupt.” Next, he appealed to the court's sense of fairness. “Of all of [Hasan] al-Shirbini's possessions, what was sold did not exceed twenty pounds,” a fraction of the debt.

After deliberation, the court decided that ʿAbduh's jargon-free argument was more convincing. If ʿAbduh's client, Muhammad, was to receive his money and return Hasan's possessions there would be no case.Footnote ⁶⁴ Although it did not prevail, Caritato's line of argument reflected a qualitatively different knowledge of the law compared to that of his contestant. If he had been the only one to display such abilities, we could dismiss him as an anomaly. But starting from the early 1860s, wakīls who performed their jobs in similar ways were increasingly appearing in the merchant court. In June 1862, a written correspondence between two wakīls, Jirjis Shakur and Mkrtich Bey,Footnote ⁶⁵ reveals comparable legal acculturation. Jirjis and Mkrtich's clients were in disagreement over the distribution of profits from a number of boats they owned jointly. Jirjis's client had not collected his share, one-twelfth in case of profit or loss since April 1857. Because he was denied his rightful share, his wakīl argued that Article 40 of the Ottoman Code of Commerce allowed him to resort to arbitration. Implied in his statement was a request to the merchant court to help him enforce the requested arbitration. Mkrtich responded, citing Article 146 of the same code, which stipulated that unclaimed rights were annulled after five years.

Until that point, the legal debate was confined to the Ottoman Code of Commerce, the primary legal text applicable at the merchant court. Realizing that he might have reached a dead end, Jirjis decided that identifying the appropriate article of the code was not sufficient for him to win the case. Thus, he took the discussion to a higher level by linking a number of legal texts in a way that would be unlikely for a wakīl with a more limited knowledge of the law to do. He explained,

Jirjis's move was meant to highlight two points. First, it revealed his ability to simultaneously navigate two legal codes, one Ottoman and the other French. Therefore, he was able to simultaneously base the legality of his claim on both codes. Second, his move suggested that he knew not only the content of these laws but also their relationship to one another, or at least tried to give the court this impression. The discussion lingered on for another two rounds, in which Jirjis and Mkrtich made references to the French Code of Commerce and the merchant court's statute. Ultimately, the court ruled in Jirjis's favor.Footnote ⁶⁶ However, it is noteworthy that the complexity of Jirjis's argument was unlikely to be matched by a one-time wakīl whose engagement with the courts would have been incidental.

The two cases discussed in this section strongly suggest that wakīls such as Caritato, Jirjis, and Mkrtich had a set of tools and techniques at their disposal that was qualitatively different than that of other wakīls. As legal practitioners, they were astute in exploiting procedural points to avoid entering into substantive debates. They navigated several legal codes and referred to legal exegeses to lend their arguments more weight. They also understood the relationship between different legal articles and were able to link them in order to synthesize a legal argument.