This is a notable entry from one of the runners-up in vLex’s International Law and Technology Writing Competition 2022. Joshua Neaman of City, University of London, won the Past category of the competition for the below article: Forensic Medical Technology And Criminal Justice In 19th-Century Egypt

Certain 18th-century Egyptian judges were famed as much for their detective skills as their legal reasoning. In one case, a man asked judge ʿUthmān Bey to find his missing wife. Amongst the woman’s possessions he found a strange man’s vest, which The shaykh of the Cairo tailors’ guild helped ʿUthmān trace to his own retainer. A search of his house uncovered the woman’s body, dead.

The judge’s skillful sleuthing notwithstanding, a striking aspect of these homicide cases is the absence of forensic medicine, defined as “the application of medical knowledge … to help solve legal problems.” By examining homicide cases from the middle decades of the 19th-century, this essay will demonstrate how, in the mid-1800s, legal-medical technology blossomed in Egypt and transformed the criminal justice system from within.

Prior to 1876, justice in Egypt was administered according to a system of “double jurisdiction,” in which an individual case could be heard in either or both of two parallel court systems. The religious sharīʿa courts heard cases according to the principles of Islamic jurisprudence. Meanwhile, the State-run siyāsa courts operated according to the criminal codes promulgated by the State. Common to both was the total absence of legal-medical technology.

This changed when Muhammad Ali Pasha (r. 1805–1848) established Egypt’s first modern medical institutions, initially with the aim of strengthening his army. The schools produced cadres of doctors trained in dissection and cutting-edge anatomical science, who then cemented their methods at the heart of the legal system.

The transformation wrought by legal-medical technology was most visible procedurally. On news of a death, the neighbourhood doctor was dispatched to conduct a post-mortem. They could summon the police doctor for a second opinion, and if needed request an autopsy at the local hospital, also overseen by the police. The resulting reports were then used first to decide whether to bring a prosecution, and secondly then in court as probative evidence. The contrast with ʿUthmān Bey’s investigations could not be greater.

This is vividly attested to in the court records. One case concerned the sudden death of a Cairene woman named Zahra. Her son-in-law was initially arrested, but was released after the post-mortem concluded the death was natural. Zahra’s son, Mohammad the Cobbler, accepted the medical evidence and dropped charges. However, he soon became suspicious and insisted that Zahra’s body be exhumed for an autopsy. The report definitively concluded that death had resulted from beating. At this point, Muhammad inexplicably refused to press charges, but the police stepped in to prosecute the case in the siyāsa courts, where the son-in-law was convicted of manslaughter.

Zahra’s case also shows a change in the conceptual operation of the criminal justice system. The growth of forensic medicine produced a shift from a “passive” and “reactive” model, where the courts acted merely as a procedural referee, to a more active and inquisitorial model. Though the sharīʿa courts continued to require next-of-kin to bring homicide cases, the State began actively combing the hospitals for suspicious cases and pressing charges in the siyāsa courts.

Therefore, Daghir’s case, which concerned a man killed in a brawl, could not be heard in the sharīʿa courts because no next-of-kin could be found, but a conviction was nonetheless secured in the siyāsa courts on the strength of the medical evidence produced. This mirrors Zahra’s case, where the autopsy report also secured a conviction in the siyāsa courts despite charges being dropped in the sharīʿa courts.

This was accompanied by a broader change in the understanding of legal truth. Previously, the criminal justice system had vested truth principally in sound and sight. Witness testimony or direct confession were practically the only probative evidence conclusive enough to secure a convection. Even the case of ʿUthmān Bey’s retainer ultimately depended on the evidence of the judge’s own eyes.

Zahra and Daghir’s cases show a paradigm shift, as legal truth becomes vested in the written word. In the former, the autopsy report allowed the case to proceed successfully despite the lack of witnesses. In the latter, the witnesses, who initially denied any crime had occurred, actually changed their testimony when confronted with a conclusive medical report. The truth revealed by the new technology triumphed over oral testimony.

However, these changes were not felt equally across both branches of the legal system. Forensic evidence remained inadmissible in homicide trials in the sharīʿa courts, where rigid procedural rules prevented the system from incorporating legal-medical technology in the way the siyāsa courts did. This in turn shifted the balance between the two jurisdictions, making the siyāsa courts the “dominant legal system” in the prosecution of homicide cases.

It is tempting to see this as another example of technology eclipsing tradition, but that was not the view at the time. Just as English equitable courts were seen to temper the Common Law’s rigidity, the doctors and judges who embraced forensic medicine saw it as strengthening and complementing the sharīʿa, enabling convictions which would otherwise be impossible under the strict rules of the sharīʿa courts.

Nonetheless, forensic medicine heralded the long-term marginalisation of the sharīʿa. As Khaled Fahmy notes, the procedural and conceptual changes it precipitated created the space where a secular legal system could be implemented. Sweeping reforms practically eliminated the sharīʿa courts’ jurisdiction in criminal matters in 1876, and they were abolished altogether in 1955.

The lessons for the present day are clear. The fundamental position of forensic medicine in today’s legal system is hardly considered. Like the printing press, it has become part of the water we swim in. The trajectory of medical-legal technology in Egypt invites us to examine how these foundational technologies came to occupy the positions they hold today, and provide a framework for imagining how current innovations could assume a similar position in the future. Medical-legal technology produced a fundamental change not only in procedure but fundamental ideas of what law is. As we exit the Great Stagnation, we should expect to see similar changes in the coming decades.

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