Conclusions

The importation of European legal procedures and codes in nine­teenth-century Egypt were seen at the time, by Westerners and Egyp­tians alike, as aspects of becoming Europeanized (mutafarnij) or civilized (mutamaddin).

98. Ibid., 122.

99. In Genealogies of Religion I attempted to explore this question with ref­erence to medieval Christian monastic discipline. I deal there with how bodily at­titudes were cultivated, but also with how sexuality (libido) was differently man­aged among Benedictines (who recruited children) and Cistercians (who recruited adults only) in the education of Christian virtues. In the one case this involved try­ing to direct the body’s experience; in the other, to reconvert the experienced body. My suggestion was that not only the force and direction of universal desire but de­sires in the form of specific Christian virtues may be historically constituted. Inci­dentally, this line of thought should not be confused with the conditioning the­sis—the notion that “beliefs” are “inculcated” by bodily repetition, as though the self were an empty container to be filled with “belief” through ritual performance. I argue specifically against that in my book—see chapter 4 of Genealogies of Reli­gion, and especially pp. 143-44.

Reconfigurations of Law and Ethics in Colonial Egypt 253 ularization and modernization. The need to unpack these terms is rarely recognized.

The increasing restriction of shan'a jurisdiction has been seen as a welcome measure of progress by secular nationalists, and as a setback by political Islamists. But both secularists and Islamists have taken a strongly statist perspective in that both see the shan'a as “sacred law” that is presently circumscribed but should in any case be properly administered or further reformed by state institutions.

Nevertheless, a modern autonomous life (which is, paradoxically, regulated by a modern bureaucratic state and enmeshed in a modern market economy) requires particular kinds of law as well as particular kinds of subjects of law. It is because the ideology of self-government seems also to call for the “civilizing” of entire subject populations through the law that the authority of the law and its reconstructive power come to be taken as supremely important. Ideally that project re­quires the installation of a particular conception of ethics and its formal separation from the authority of law, both also delinked from “religion.” Thus a useful study of Egyptian shan'a courts during the first half of the twentieth century concludes that “The state’s leaders and legislators were reluctant... to create a split with tradition in this sensitive field of fam­ily law; they felt the society was not yet ready for more drastic change and that it was therefore preferable to introduce a modest reform in the framework of the existing legal system.”^[145] My argument, on the con­trary, is that whatever the intentions of legislators, the legal reforms marked a revolutionary change.

Interestingly, the project of “civilizing” a population is one that secu­larists and Islamists share, albeit differendy. Both of them agree that the ru­ral and urban lower classes are immersed in “non-Islamic beliefs and prac­tices,” in a deep-rooted culture that owes more to Pharaonic and Coptic Egypt than it does to Islam brought by the sixth-century Arab con-

querors.¹⁰¹ Both agree also that these classes need to be educated out of their superstition, an obstacle to their becoming “truly modern.” And both agree, finally, that the social power that can carry out this mission is the one that already represents them as a nation and directly intervenes in their lives: the modernizing state..Of course the two tendencies are by no means the same; they do not draw on the same sensibilities.

Thus for secularists each citizen is equal to every other, an equal legal and political member of a state that itself claims a single personality. In their scheme the categories “majority” and “minority” technically relate to electoral politics only, but jn practice they reflect entrenched social in­equalities. For Islamists they are basic cultural categories that define citi­zens as necessarily unequal. In the modern state, both make it difficult, if not impossible, for people who belong to different religions (Muslims, Christians, and Jews) to live in accordance with their traditions without— on the one hand—having also to be grouped invidiously as dhimmis (non­Muslim protected subjects of a Muslim state) or—on the other hand—as “ethnicities” (that is, as “minorities” unwilling or unable to assimilate to “the national culture”).

In so for as "religion” is recognized in the texts of modern legal re-

ioi. This view has been greatly strengthened by the efforts of folklorists who have constructed a secular, mass “culture” for Egypt (embracing tribes and urban­ites, upper Egyptians and inhabitants of the Delta) within an evolutionary frame­work that secures its continuous national personality. See, for instance, the stan­dard survey of Egyptian folklore by Ahmad Rushdi Salih, Al-adab al-sha‘bi (Cairo, first edition, 1954); the famous study of “immortality” in Egyptian cultural her­itage—“an extremely ancient and continuous heritage”—by Sayyid ‘Uways in his Al-khulud (Cairo, 1966); and the interesting dictionary of customs, manners, and sayings compiled by Ahmad Amin: Qamiis al- 'adat wa al-taqalid wa al-ta ‘dbtr al- misriyya, Cairo, 1953. Such writers, most of whom date from the Nasir period (1952-70), are clearly inspired by a secular vision that denies the existence of any significant “cultural” distinction between Christians and Muslims within a unified Egyptian nation.

Reconfigurations of Law and Ethics in Colonial Egypt 255 formers—Amin, Safwat, and so forth—it comes to be thought of in moral terms. The essence of religion—as Kant put it, and other moderns agreed—was its ethics. (In contrast, the Kierkegaardian view makes a sharp distinction between “religion” and “ethics.”)^[146] This meant that the attempt to allocate "religion” or its surrogate to its own private sphere, defined and policed by the law, was also an attempt to clear a space within the state for modern ethics.

Put another way: whereas ethics could at one time stand independ­ently of a political organization (although not of collective obligations), in a secular state it presupposes a specific political realm—representative democracy, citizenship, law and order, civil liberties, and so on. For only where there is this public realm can personal ethics become constituted as sovereign and be closely linked to a personally chosen style of life—that is, to an aesthetic.

A secular state is not one characterized by religious indifference, or rational ethics—or political toleration. It is a complex arrangement of le­gal reasoning, moral practice, and political authority. This arrangement is not the simple outcome of the struggle of secular reason against the des­potism of religious authority. We do not understand the arrangements I have tried to describe if we begin with the common assumption that the essence of secularism is the protection of civil freedoms from the tyranny of religious discourse, that religious discourse seeks always to end discus­sion and secularism to create the conditions for its flourishing.

One of the many merits of Johansens account of classical Islamic law is his demonstration that the sharia is a field of debate and dissent in which the distinction between certainty and probability is pivotal, and that this law has evolved in the context of changing social circumstances and ar­guments. But just as important is his implicit suggestion that the authori­tative closure of a debate is not necessarily a sign of discursive failure, that it indicates a different kind of discursive performance altogether—the car­rying out of legal judgment. For legal judgment is not confined to the cog­nitive domain of truth, to a recognition of transcendent rules; it is also central to the practical domain of punishment and pain.

The judicial process is an institution integral to every kind of state, and it is always based on coercion. In order to understand “secularism” I therefore did not begin with an a priori definition of that concept (“the universal principles of freedom and toleration” or “a particular cultural im­port from the West”). I tried to look at aspects of shari a reform as both the precondition and the consequence of secular processes of power. For the law always facilitates or obstructs different forms of life by force, responds to different kinds of sensibility, and authorizes different patterns of pain and suffering. It defines, or (as in the present moment of genetic and cog­nitive revolutions) tries to redefine the concept of the human—and so to protect the rights that belong essentially to the human and the damage that can be done to his or her essence. And it punishes transgressions (of commission and omission) by the exercise of violence.