The Probate Regime: Enchanted Bureaucracy, Islamic Law, and the Capital of Orphans in Nineteenth-Century Egypt. (November 2022)

• Record Type: Journal Article
• Authors: Mestyan, Adam; Nori, Rezk
• Is Part Of: Law and history review. Volume 40:Number 4(2022)
• Page Start: 597
• Page End: 624
• Publication Date: 2022-11
• Subjects: Law -- History -- Periodicals; 340.05
• DOI: 10.1017/S0738248022000529
• Languages: English
• ISSNs: 0738-2480

Abstract

Abstract: In this article, we explore the "probate regime, " an administrative field of government activity of legally transferring, taxing, and administering bequests. As an example, we study the changes of the Egyptian probate regime in a longue durée perspective, with a focus on the nineteenth century when Egypt was a sub-Ottoman "khedivate." We argue that the rationalization and expansion of the previously Ottoman administration of bequests, unlike Western bureaucracies, retained religious norms in the 1850s-1860s. In the context of Egyptian legal transformation, the change in the probate regime represents a case when Islamic norms became contested between administrative bodies of the government and the Muslim judge ( qadi ). Drawing on novel archival research in Egypt and elsewhere, we first consider the institutions of the Ottoman probate regime (probate judge, fees, and a probate bureau). Next, we zoom in on the way the khedivial probate bureau became a large, de-Ottomanized, Muslim administration of death by the 1870s in a partnership between khedives and local jurists. The khedives also considered the orphans' wealth under the care of the bureau a source of government capitalism. Despite the abolishment of the probate bureau in 1896, the khedivial transformation ensured that Muslim principles remained normative during the British occupation which ushered in a new division of law into "religious" and "civil" legal domains.