By Aya Bejermi
In most Muslim-majority countries, Islamic normativity underwent a process of “positivization” that reshaped both the content of norms and the modes of their production.[1] In Egypt, two intertwined developments drove legal transformation: the construction of a centralized state and the rise of medical expertise.
The integration of medical “experts” and “expertise” (ikhtibār ṭibbī/ṭibb sharʿī) into Muslim legal systems highlighted the insertion of new procedural practices into the Islamic normative framework. Medical expertise contrasted sharply with the use of expert witnesses (ʿudūl, s.ʿadl) and evidentiary rules in fiqh.[2] In Egypt—unlike Morocco—the ʿudūl system was abolished under Saʿīd Pasha (d. 1279/1863); thereafter, courts ruled without oral testimony, and ʿudūl became court clerks responsible for drafting and authenticating documents.[3]
New medical and nursing schools trained practitioners in surgery, autopsy, and the preparation of court testimony.[4] Expanding medical knowledge and institutions reshaped litigants’ and judges’ perceptions of the medical dimensions of adjudication.
From the 1260s/1850s onward, medical expertise accepted by siyāsa councils in criminal cases diverged fundamentally from that admitted in sharīʿa courts.[5] Four features marked this shift: a causal, anatomically informed approach to injury and death; written rather than oral reporting (taqrīr vs. shahāda qawl); permanent forensic doctors instead of ad hoc experts; and a sociopolitical function that sometimes challenged traditional hierarchies by relying on medical evidence rather than witness testimony or confession.[6]
The consolidation of medical examination (kashf ṭibbī) as proof became emblematic of these new procedures. Egypt participated in the global rise of psychiatry with dedicated hospitals[7] (e.g., al-Majādhīb),[8] specialized staff, and new diagnostic categories; figures such as Dr. Kāmil Bik al-Khūlī (d. 1956) were central to this development.[9] The expansion of psychiatric hospitals reflected the growth of modern medicine and, more broadly, the profound transformations taking place in Egypt at the turn of the twentieth century.
During this time, forensic expertise expanded rapidly. Reports from the Department of Public Health and the Cairo Health Inspectorate show that in 1333/1915, district and police doctors conducted 13,797 forensic examinations, including 182 involving the mentally ill—a substantial increase from 1914.[10] Thus, forensic medicine became increasingly embedded in Egyptian judicial practice, though its use varied across types of litigation alongside the rise of modern medicine.
Advances in medical techniques in personal status cases remained limited, as courts were reluctant to use them in family disputes. A major shift came in 1929, when an indigenous court[11] first accepted medical evidence to establish pregnancy in alimony claims before sharīʿa courts. [12] Typically ordered by probate councils in interdiction cases, an examination produced a written medical report (taqrīr ṭibbī), fostering the emergence of forensic physicians and the new discipline of psychiatry.[13]
Case law from the High Probate Council (HPC, al-majlis al-ḥisbī al-ʿālī).
Created in 1290/1873 under Khedive Ismāʿīl (r. 1279–1290/1863–1879) after the Selehdar inheritance dispute, probate councils comprised a civil servant (later a judge of the ahliyya courts created in 1883), an ʿālim (Islamic scholar), and a notable. Their decisions were appealable before the majlis al-ḥisbī al-ʿālī (High Probate Council, HPC), composed of three magistrates of the ahliyya Court of Appeal and, depending on the case, either a member of the High Sharīʿa Court (established in 1315/1897) if the concerned party was Muslim or a co-religionist for non-Muslims, together with serving or retired civil servants.
Although formally incorporated into the Egyptian judiciary, the councils’ jurisdiction completed the sharīʿa courts’ jurisdiction, reflecting a persistent complementarity between siyāsa justice—princely or administrative justice exercised by councils—and sharīʿa justice (mahākim).[14] As Khaled Fahmy notes, the emerging Egyptian state needed to empower its bureaucracy through new legal rules, drawing on Ottoman codes and institutions, with siyāsa articulated within Islamic doctrine. Justice was neither distant nor lacking in authenticity.
Until 1873, issues such as junūn (insanity) and ʿatah (mental weakness)[15] potentially leading to ḥajr (interdiction) fell under sharīʿa court jurisdiction. The High Decree of 13 May 1873 (16 Rabīʿ al-Awwal 1290), later confirmed by the Decree of 19 November 1896 (13 Jumādā al-Thānī 1314), transferred exclusive jurisdiction over interdiction to the majālis ḥisbiyya (probate councils).[16] Article 3 of the Law of 13 October 1925 extended this jurisdiction to non-Muslims.[17]
My analysis of the ninety-eight decisions found in al-Muḥāmā, a journal founded by the lawyers of the indigenous courts in 1920, highlights three types of evidence for assessing a person’s incapacity or capacity: the interested party’s answers, given at the hearing, to judges’ questions; the person’s ability to manage his or her affairs, attested according to the testimonies provided; and finally—the most innovative aspect—the introduction of medical expertise confirming or invalidating the cause of the interdiction (e.g. dementia, insanity, or mental weakness due to old age).
For example, a 1331/1913 HPC decision held that medical expertise was sufficient (kāf) and that a new examination of the appellant was unnecessary. Accordingly, the medical report and the responses provided by the individual during the hearing were enough to justify the rejection of the interdiction; no oral testimony was required:
Whereas the appellant submitted a kashf ṭibbī issued by the representative (wakīl) of al-Majāzib Hospital (isbītāliya), the assistant to the forensic doctor (musāʿid al-ṭabīb al-sharʿī), and the ḥikimbāshī [18] of the Cairo governorate, dated August 14, 1913; and whereas the High Probate Council considers this assessment sufficient and deems it unnecessary to conduct a new examination of the appellant before the probate council of the Qina province.[19]
The HPC emphasized that it had questioned the individual during the hearing and that all responses were consistent with the kashf ṭibbī. On this basis, relying on both medical expertise and the answers provided during the hearing, the HPC concluded that the appeal was procedurally admissible and that the interdiction request should be rejected on the merits. Notably, the HPC did not rely on any testimony to support its decision.
In a similar decision from 1341/1922, the HPC relied on a taqrīr ṭibbī to justify rejecting an interdiction.[20] The report indicated that the individual had reached “old age” (sinn al-shaykhūkha) but retained “mental faculties” (ḥāfiẓ lil-quwwā al-ʿaqliyya) and was “capable of distinguishing (idrāk) what is beneficial from what is harmful (al-nāfiʿ min al-ḍārr).”[21] According to the HPC, the party requesting the interdiction had not provided evidence (lam yataqaddam…mā yuthbit) that the individual had behaved improperly (taṣarrafa taṣarruf sayyiʾ), exhibited prodigality (safh) or imbecility (ghufla), or mismanaged property. In this case, the probative value of the medical report demonstrating the individual’s capacity sufficed to reject the interdiction request, even in the absence of testimonial evidence.
Another decision of the HPC, dated 21 June 1925, concerned an individual with paralysis.[22] Medical documentation and examination demonstrated that the person remained mentally competent; thus, the paralysis alone did not justify interdiction. Moreover, no behavior warranting interdiction was proven. In this case, the probate judge assessed the visible physical impairment against the written medical report, which he considered to carry significant evidentiary weight.
A central question concerning the probative value of medical expertise is how to proceed when assessments of mental integrity (salāmat al-ʿaql) conflict. The HPC addressed this issue in a decision dated 19 June 1932 in a case involving an interdiction imposed on one Ḥanūna Yūsuf ʿAbduh by a first-instance probate council on the grounds of age and alleged incapacity. She appealed to the HPC seeking annulment of that decision. In its reasoning, the HPC noted that there were two medical examinations and reports, conducted one month apart, that contradicted each other. The kashf ṭibbī, which was conducted by three physicians, concluded that the appellant was “ill (marīḍa) and incapable of managing her property in any manner whatsoever.”[23]
However, the taqrīr ṭibbī submitted by the physician appointed by the first-instance probate council asserted that ʿAbduh’s mental faculties (quwāhā al-ʿaqliyya) “correspond to her age of seventy years and that she suffers from no insanity (khabal), deficiency (khalal), or impairment (naqṣ) of her mental or perceptive faculties (idrāk).”[24] The report nevertheless noted that, due to her vascular problems, blood pressure, or age, she experienced significant memory loss, rendering her incapable of managing her affairs reasonably.
Additionally, according to the report by the council member (ʿuḍw) appointed by the first-instance probate council, during the discussion with the appellant, “Her general knowledge is very weak, to the point that she is incapable of managing even minor interests, neither with the strength of her body nor with her mind.” Consequently, she was deemed unfit to handle “her agricultural or real estate affairs.”[25]
The HCP remarked
Upon comparing the two medical reports regarding the mental integrity of the appellant, a contradiction becomes apparent. The High Probate Council gives preponderance to the mental weakness (tarjīḥ ḍaʿf al-quwā al-ʿaqliyya) of the appellant, based on the detailed discussion recorded in the report of the member of the first-instance probate council (al-munāqasha al-daqīqa allatī dhukirat bi-taqrīr ʿuḍw al-majlis al-ibtidāʾī).[26]
Accordingly, the HPC ruled that the contested decision was well-founded and should be confirmed, with the appellant condemned to pay costs.[27] This decision ultimately demonstrates that the justification for the interdiction was not based primarily on medical evidence but rather on the discussion documented between a member of the probate council, who was not a physician, and the appellant.
Conclusion
The introduction of medical reports into cases formerly governed exclusively by Islamic normativity—especially Ḥanafī doctrine—marks an unprecedented shift. Several decisions issued by the HPC between 1913 and 1945 shed light on the various dimensions of medical expertise in cases of interdiction due to mental illness. In this context, the medical report represented only one element within a broader hierarchy of proof, institutionalizing medical evidence without displacing other forms of proof and positioning medical expertise as a form of probative knowledge that was co-produced with legal reasoning rather than as a mode of proof legally equivalent to witness testimony.
Notes:
[1] Baudouin Dupret, Adam Belkadi, Monika Lindbekk, and Ayang Utriza Yakin, “Paternal Filiation in Muslim-Majority Environments,” Journal of Law, Religion and State 10, no. 2–3 (2023):167–217. See also Baudouin Dupret, Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge University Press, 2021).
[2] Conceptually, my understanding of fiqh is a prevailing doctrinal interpretation in the Muslim world, consisting of the science of the foundations of doctrine (uṣūl al-fiqh) and its application (furūʿ al-fiqh). It is conflicts with “positive law,” a law that John Austin distinguishes from other normative systems in that “it is based on a command issued by a legitimate authority, endowed with the power to sanction,” (J. Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence [Weidenfeld & Nicolson, 1954], quoted by Baudouin Dupret (ed.), Positive Law from the Muslim World [Cambridge University Press, 2021], 7). In Egypt, “positive law” which constitutes the Egyptian state, conflicted with Islamic norms derived from sharīʿa and fiqh. See “Law as a Concept” in Dupret, Positive law from Muslim World, 29–52.
[3] See Zayn āl ʿābdyn Shams al-Dīn Najm, Miṣr fī ʿahd ʿAbbās wa Saʿīd (Dār āl-shurūq, 2014).
[4] Perhaps in contrast to premodern medical training, as suggested in the work of Emilie Savage-Smith Emilie Savage-Smith, “Medicine in Medieval Islam,” in The Cambridge History of Science, Volume 2: Medieval Science, ed. David C. Lindberg and Michael H. Shank (Cambridge University Press, 2013), 140–67.
[5] Khaled Fahmy, In Quest of Justice: Islamic Law and Forensic Medicine in Modern Egypt (University of California Press, 2018), 257.
[6] Fahmy, In Quest of Justice, 257.
[7] Two hospitals catered specifically to Europeans: the European Hospital of ʿAbbāsiyya and the Protestant Hospital of Ismāʿīliyya. Two others fell under the authority of the Egyptian government, namely the Qasr al-ʿAynī Hospital and the ʿAbbāsiyya Mental Hospital. A fifth institution, reserved for Jewish patients was located in the Jewish quarter of Ḥārat al-Yahūd. See M. ʿAlī, Al-kiṭaṭ al-tawfīqiyya: al-jadīda li-miṣr al-qāhira wa mudunuhā wa-bilādihā al-qadīma wa-al-shahīra (Al-maṭbaʿa al-kubrā al-ʾamīriyya, 1886), vol.1, 96.
[8] Nihāl Yusif Ḥamdī, “Wathāʾiq ʾisbitāliyya al-majādhīb (1874-1889): dirāsa ʾarshīfiyya,” al-Ruznāma 13 (2015): 249–318.
[9] He was a psychiatrist and the director of al-Majādhīb Hospital (ʾisbitāliyya) from 1916 to 1953 and one of the most important figures in Egyptian psychiatric history. His memoirs have been compiled and edited in, M. al-Shamāʾ, Al-sarāyā al-ṣafrā ‘Riḥla fī mudhakarāt Muḥammad Kāmil bik al-Khūlī mudīr mustashfa al-Majādhīb’ 1916-1953 (Dār al-Miṣrī lil-nashr wa’l-tawzīʿ, 2022).
[10] Cairo Government Press, ed., Report of the Medical Officer of Health for the Years 1915 and 1916 (Ministry of the Interior, Egypt, Department of Public Health, Cairo City Health Inspectorate, 1919); Cairo Government Press, ed., Report of the Medical Officer of Health for the Years 1917 and 1918 (Ministry of the Interior, Egypt, Department of Public Health, Cairo City Health Inspectorate, 1920).
[11] The translation of ahlī as ‘indigenous’ certainly has colonial connotations, but it is necessary above all because there is no satisfactory equivalent term for ‘ahliyya’. Furthermore, in the Egyptian context, the word ‘indigenous’ was commonly used to refer to these courts, both in normative and judicial or doctrinal terms.
[12] Al-Jarīda al-Qaḍāʾiyya highlighted the ruling as the first in Egypt to authorize radiological examinations of wives to verify claims related to alimony, inheritance, or waqf rights. See decision n°16 of 15th December 1929, al-Jarīda al-Qadāʾiyya, 4th January 1930.
[13] Ayang Utriza Yakin et al., “L’aliénation mentale devant les juges égyptiens pendant la période de tutelle britannique,” Clio@Themis. Revue électronique d’histoire du droit 23 (Novembre 2022).
[14] Fahmy, In Quest of Justice, 21–22.
[15] While the distinction between prodigality (safh) and insanity (junūn) is fairly clear in the madhhabs (schools of Islamic law), the line between insanity and dementia is less so. Only the Ḥanafī school distinguishes majnūn (totally incapable, ʿadīm al-ahliyya, fāqid al-ʿaql) from maʿtūh (partially incapable, nāqiṣ al-ahliyya), whose reason is impaired rather than absent. Y. Linant de Bellefonts, Filiation, incapacités, libéralités entre vifs (Walter de Gruyter GmbH & Co KG, 2018), 262.
[16] The shift of part of the sharīʿa courts’ jurisdiction to the probate councils was grounded in the doctrinal distinction between guardianship over the person (al-wilāya ʿalā al-nafs) and guardianship over property (al-wilāya ʿalā al-māl). Following the establishment of these councils, the sharīʿa courts exercised only a residual function in the appointment of guardians, limited to the attendance of a qāḍī during the council’s act of nomination.
[17] Article 5 of ʿAmr ʿAlī al-ṣādir fī 19 Nūfambir 1896 (13 Jumādā al-Thānī 1314) bi-ilghāʾ aqlām bayt al-māl wa-tartīb al-majālis al-ḥisbiyya, Wizārat al-Ḥaqqāniyya (Ṭubiʿa bi-al-Maṭbaʿa al-Amīriyya bi-Qāhira, 1916), 1–7; Article 3 of Marsūm bi-qānūn n°3 of year 1925, 13 October 1925, khāṣṣ bi-tartīb al-majālis al-ḥisbiyya, Al-Waqa’i’ al-Misriyya, n°105, November 2, 1925.
[18] Ottoman title for the chief doctor. In the Egyptian context, this refers to a health officer in a governorate or large administrative area.
[19] HPC, 02/11/1913, Al-Muḥāmā, year 1, n°9, March 1921, 445–47.
[20] HPC, 05/11/1922, Al-Muḥāmā, Year 3, n°8, May 1923, 342.
[21] HPC, 05/11/1922, Al-Muḥāmā, Year 3, n°8, May 1923, 342.
[22] HPC, 21/06/1925, Al-Muḥāmā, Year 6, n°2, November 1925, 129.
[23] HPC, 19/06/1932, al-Muḥāmā, Year 13, n°5, February 1933, 521.
[24] HPC, 19/06/1932, al-Muḥāmā, Year 13, n°5, February 1933, 521.
[25] HPC, 19/06/1932, al-Muḥāmā, Year 13, n°5, February 1933, 521.
[26] HPC, 19/06/1932, al-Muḥāmā, Year 13, n°5, February 1933, 521.
[27] HPC, 19/06/1932, al-Muḥāmā, Year 13, n°5, February 1933, 521.
Suggested Bluebook citation: Aya Bejermi, Kashf ṭibbī: Forensic Expertise as Probative Knowledge in Ḥajr Decisions of 20th-Century Egypt, Islamic Law Blog (Feb. 26, 2026), https://islamiclaw.blog/2026/02/26/roundtable-kashf-%e1%b9%adibbi-forensic-expertise-as-probative-knowledge-in-%e1%b8%a5ajr-decisions-of-20th-century-egypt/.
Suggested Chicago citation: Aya Bejermi, “Kashf ṭibbī: Forensic Expertise as Probative Knowledge in Ḥajr Decisions of 20th-Century Egypt,” Islamic Law Blog, February 26, 2026, https://islamiclaw.blog/2026/02/26/roundtable-kashf-%e1%b9%adibbi-forensic-expertise-as-probative-knowledge-in-%e1%b8%a5ajr-decisions-of-20th-century-egypt/.