“It is foolish to believe that Article (2) of the Constitution may not be implemented without enacting secular laws consistent with the provisions of Islamic Sharia, because this means that the will of the Creator and the implementation of His Sharia will depend upon the creature’s will and desire, which nobody has ever mentioned or justifiably stated.”
“It is foolish to believe that Article (2) of the Constitution may not be implemented without enacting secular laws consistent with the provisions of Islamic Sharia, because this means that the will of the Creator and the implementation of His Sharia will depend upon the creature’s will and desire, which nobody has ever mentioned or justifiably stated.”
This is not a quotation from an Egyptian Salafi sheikh, or a Muslim Brotherhood leader or even an Azhar scholar. It is part of a judgment made by the administrative court about a dispute over a pub permit, in which the judge seized the opportunity to express his opinion about the famous Article (2) of the defunct Constitution of 1971. The contradictions in this paragraph have their roots in the complex relationship between religion and the modern state in Egypt, which went through several stages, including constitutional amendments, which changed Sharia from “a” principal source of legislation to “the” principal source of legislation in 1980.
This addition was not alien to the Egyptian legal heritage. Sharia was present since the very establishment of a legal system based on the European pattern, through legalizing the huge doctrinal heritage, accumulated over centuries, when the Egyptian civil law in its present form was published in 1948. Reviewing this impeccable text by professor Abdul Razzaq Sanhoury reveals that Sharia is not merely a source text, but the text itself is a product of a tedious collection, classification and refinement of the Islamic jurisprudence, in its four schools, as it evolved over the centuries before being finally drafted into legally binding rules. Therefore, when discussing the retreat of Sharia to rank third among sources of civil law, Professor Sanhoury stated that the new law itself was viewed as regulation of Sharia, and consequently it would be useless to mention the latter as one of its sources.
Modernizing Sharia in this way occurred in the context of the search for an identity for the national group seeking liberation from colonialism without returning to the conventional Ottoman conception. Here, the concept of national identity, which stems from Islam, was conceived, without merging into a higher political unity, like the Caliphate. According to this concept, materialized by a reformist elite with Imam Mohammed Abdu being a leading figure, the people will fill the vacant position of the individual ruler or judges/scholars assuming the legislative function in non-deterministic rulings and based on the traditional jurisprudence. In this manner, Islam becomes partly secularized, ultimately turning into a source of national identity in the making, i.e. it will turn into a legal system, deprived of sacredness, which can be compared to other systems. Its development will be subject to the will of specific political institutions. In other words, Islam will be the nation’s religion before being the faith of its citizens and its sharia evolved throughout historic dialecticism, changed into a fixed text, more like the Jewish testament than the Quranic texts.
Both the genius and dilemma of the Islamic reform project appear clearly here. This project succeeded in establishing the nationalist notion with the other related concepts (popular sovereignty and democratic legitimacy) and in reconciling it with Islam where the latter will become a components of the new nationalism, be it pan-Arab or Egyptian. But, and because of its nationalism, it turned the state support to particular forms of individual and collective identity that depends on Islam in public life, into a requirement of national liberation and building the new nation. This perception has contributed to besieging the people’s ethical values and installed national liberation state as guardian on their consciences. In other words, authoritarianism in the name of Islam is the result of Islam secularization along national patterns, rather than being an inherent trend to control conscience. It may not also be attributed to the rise of Islamic movement since the mid-1970s, an ascendancy viewed by several liberal intellectuals and leftists as a breakaway within a delusional liberal path. Back to Sanhoury, a master of secularized Islam, we find that he was an admirer of the national social course of the French legal jurisprudence, and was educated by its professors. This trend has supported the expansion of public order concept, to include many aspects of individuals’ moral or behavioral lifestyles at the private sphere, such as family. He has even dealt with the law as a magic tool for reformulation of social relations on a cooperative national model (semi-socialist). In the introduction to his book “An Approach to Civil Law”, Professor Sanhoury clearly views the process of codification of Islamic law as one of the requirements for complete national independence. He also views the publication of a civil law, intended to organize civil relationships among individuals, as a national occasion worth celebrating.
This project has given rise to a series of unresolved problems that keep cropping up to this day concerning the relationship between religion and the state. For example, the paired relationship between atheism or adoption of non-divine religions and western or Zionist infiltration into the Arab nation has been a permanent phenomenon. The suffering of Baha’is at the hands of Egyptian legal system, for example, began in the 1920s, during the same liberation era, and happened as a result of actions targeting their presence in the public life. Even certain Christian denominations, unrecognized by the Church like “Jehovah’s Witnesses” community remained in the crossfire of security chasing.
In this context, the Salafist project has struck roots in Islamic reform discourse, but it has been promoted in a circular motion, benefiting from the tense relationship between the nation-state and the conscience of its members. It bypassed the national state itself and its political group (i.e. the people) and its law, in favor of a perceived idea about an accomplished Sharia law, to which the nation has to succumb to prescribed governance principles. In other words, the Salafist discourse has introduced the concept of national state’s interference in the individuals’ moral lives up to their logical end. In other words, the national state itself, along with its political groups (i.e. the people) and its law have been disregarded in pursuit of a model for an all-powerful State, more dedicated to the complete Sharia, which is ever present in the roots of modern Egyptian legal system. On the other hand, the Brotherhood project has remained somewhere in the middle, between the two positions, while the legal Egyptian group has continued to play its role as the custodian of Islamic reform legacy, or secularized Islam project.
Current Constitutional Debate: Tensions and Opportunities
Bearing this background in mind, the previously mentioned rule by the administrative judge, has been expressive of this overlapping relationship between the two discourses. It is, on the one hand, a representation of maintained Islamic reform trend that endeavors to institute Sharia law. On the other hand, it also has a latent estrangement, concealing a possible Salafist dominance, which tends to deprive the entire nation of legislative power. That tension took three decades to come to the point of full explosion, during the process of writing the constitution. The Salafist movement has quite openly presented the issue of ineligibility of the nation for legislation, insisting on the need to set up a panel composed of senior scholars, entrusted with interpreting the meaning of Sharia principles, in place of the judiciary. It has also insisted on the need to include articles incriminating persons who speak irreverently against divinity or the companions of the Prophet, and to prohibit individuals not belonging to monotheistic faiths to exercise religious rites. The Salafist groups very often quote the statements about secularized Islam project to defend their agreements, albeit for purely utilitarian motives, as in cases in which they refer to public order, which considered the three monotheistic religions one of its components, in the explanatory memorandum to the 1923 Constitution. They may also refer to national community identity, and the need to protect the common folk against confused blasphemous opinions or those having colonial roots.
The double failure theme referred to earlier is now clearly manifested. The Salafist trend has stressed the reform discourse for the past three decades, and has finally used it through recurrently referring to the judiciary system to interpret Article (2), when discussing a long list of problematic issues, starting with bank interests through freedom of creativity, and not ending with personal status laws. In those cases, the positions of reformist discourse appeared confused, and led to disasters, like the verdict on separating scholar Nasr Hamed Abu Zeid from his wife in 1994, or abolition of Articles having a progressive nature with regard to personal status laws in 1985, or their explicit declaration of Baha’is as apostates, as well as their refusal to recognize religious conversion through consecutive legal judgments in 2008 and 2009. This reveals the true nature of the traditional Islamic reform project, including its latest version, manifested by Dr. Salim Al-Awa, for example, who appears to be incapable of initiating a simple idea, not alien to the Islamic tradition in any way; namely, the freedom of conscience. Restriction of this freedom is motivated by defense of the unity of the nation, rather than a defense for doctrinal purity. We may refer to the disappointing attitudes adopted by Dr. Awa or Professor Bushri with regard to the questions of sectarian violence, the Baha’is and others.
On the other hand, the points scored by the Salafist movement with regard to the reform project, merely deepen the crisis of the Salafist movement itself. What is the next step, for example, in respect of constitutionalizing a semi-surrealistic crime, such as disdain of religions? Or, what are the consequences of considering the Azhar a reference authority for interpretation of Sharia? And how is it possible to ensure state supervision of individuals’ conscience through this totalitarian pattern, which is advocated by Salafist movement, while the state’s mobilization and ideological capacities are being depleted? The Salafist project also appears to have reached its logical boundaries, obviously observed through the constitutional crisis.
The good news in this complex landscape is that the door is wide open for a new break-off with nation-state model, inherited through decades of colonialism and national liberation. This means that the Islamic reformist discourse may perhaps come to the conclusion that partial Islamic secularization through the nation-state model has exhausted its energies and the opportunity is now affordable to liberate Islam itself from the shackles of this perception, and enable it to have full control over its public and civil institutions, entrusted with expressing the different Islamic “identities”. In this manner, the state will not undertake the task of promoting a rubberstamp conception of this identity among its citizens. This anticipated situation is certainly different from the full secular model, still being propagated by some groups, and which converts liberalism or socialism, for example, to a new state doctrine. If the ideological capacities of the state are crumbling, and cannot be used to support the Salafist discourse, the same premise must, naturally, apply in respect of the secular perceptions. In other words, I think the historical circumstances are ripe enough to restructure the relationship between the state and citizens’ ethical life on new foundations, different from the regulatory pattern, adopted by national liberation state. It is a legitimately reliable structure in the context of Islamic reform project, aimed to pave the ground for individual freedoms, having established national legitimacy or democratic concept. Giving personal opinions lies outside the main theme of this article and the author’s capacity. But we may refer to an important experience, like the attempt made by Dr. Abdel Moneim Aboul Fotouh to support a democratic Islamic movement as a reasonable starting point. I believe the ability to consolidate freedom of conscience in contemporary Islamic thought must constitute one of the most important governance criteria regarding this experiment.
The bad news is that recognition of this objective requirement usually comes late, and even too late, when all parties have been convinced through trial and error that it is impossible to force any ethical pattern on people. The biggest problem of all is that the current confrontations have failed to convince the Salafist movement adherents of the impossibility of imposing its complete model. Their minds are still misled by the mirage of a looming victory.
