Defining secular law for modern morality

I am suggesting, in effect, that the social and cultural changes taking place in the late nineteenth and early twentieth centuries—whether delib­erately initiated or not—created some of the basic preconditions for secu­lar modernity.

Ahmad Safwat s attempt at the beginning of the twentieth century to formulate for Egypt a secular distinction between law and morality claims our detailed attention, because it applies ijtihàd (in the wider sense popu­larized by the salafiyya reformers) in the cause of a modernized and mod­ernizing state. It is also, to my knowledge, the first work to argue this case rigorously and without having to depend logically on Islamic ideas of maslaha. Safwat was a British-trained lawyer and an advocate of sharia re­form, who first presented his ideas in a book entitled “An Inquiry into the Basis of Reform of the Law of Personal Status.” Three years later he pub­lished a short statement of his position in English.⁷¹

The former, being addressed to an Egyptian audience, is largely pre­occupied with the problem of changing the existing laws relating to mar­riage and divorce, the social problem with which it begins.

70. See Hossam M. Issa, Capitalismo et societes anonymes en Egypte: Essai sur le rapport entre structure sociale et droit, Paris: R. Pichon et R. Durand-Auzias, 1970, especially part one.

71. Bahth fi qaidat isldh qanùn al-ahwdl al-shakhsiyya, Alexandria: Jurji Gharzuri Press, 1917; “The Theory of Mohammedan Law,” in The Journal of Com­parative Legislation and International Law, vol. 2,1920.

72. Safwat, Bahth, p. 2.

Reconfigurations of Law and Ethics in Colonial Egypt 237 in a joint mode of life.” This means that the marriage contract can be binding only with the complete agreement of both sides with no interr ference from anyone.^{[136] [137] The freedom of contract between equal parties— a freedom already central to the sphere of commercial exchange—is thus, a basic principle of Safwat’s proposals for reform, one on which he lays great stress.}

The improved conditions of domestic life among the upper classes, Safwat believes, point to the way that marriage for all of society must be civilized with the aid of a civilized law. Safwat’s attribution of people’s feel­ings of “sacredness” toward the shari‘a is a formulation symptomatic of the newly emerging secular discourse. It is clearly intended to signal the pres­ence of “irrational” sentiments toward the law assumed to be based on the belief that it cannot be touched by “profane” hands (“taboo”).

Safwat insists that such reforms are not contrary to the fundamental principles of the shari ‘a, and proposes a reexamination of the basic sources of that law: Qur’an (the divinely revealed text), sunna (the tradition of the Prophet), ijma (consensus of scholars), and qiyds (analogical reasoning). Since analogy is not a source but a method of reasoning, it can be set aside, he says. Furthermore, since the consensus established in the past by jurists, and even the tradition of the Prophet himself, depend for their au­thority on the Qur’an, Safwat suggests that it is the latter one must attend to above all.

Safwat notes that the commandments in the Qur’an may be classified as follows: (1) acts that are. forbidden {haram), (2) acts that are mandatory (wdjib), and (3) acts that are permitted (jd’iz)™ This latter residual cate­gory consists of everything that (from the point of view of religion) the in­dividual has the right to do, and as the members of an infinite residual cat­egory they cannot be exhaustively enumerated. The legal status of such acts mentioned in the Qur’an is no different from those that are not men­tioned. They are all equally optional. The few that are specified have the

function of defining forbidden acts—as when the Quranic statement that Muslims may have up to four wives defines a limit (that is, that having wore than four at the same time is forbidden). But as optional acts are not mandatory, they cannot be granted absolutely by the state since they may conflict with the freedom of others in particular social circumstances. And this is where the positive law of the state comes in, because its function is to limit—in the interest of all—the options of the individual that the shari'a permits.

The almost indefinite extension of “natural” rights may thus be cur­tailed by the state through legislation without infringing the rules of (reli­giously derived) morality, because the states jurisdiction lies beyond the two Qur’anic classes of forbidden and obligator}' acts. The argument by which Safwat delimits the sphere of religious rules and opens up the space for secular state law is, I think, one of the earliest and most rigorous of its kind in modern Islamic reform. Thus although he repeatedly adverts to the importance of recent historical changes and to the need for responding to them, he does not make that the basic method ci reform. He does not, for example, take the easy way out (as others have done since) by resorting di­rectly to the slippery notion of “public interest” (istisldh) in order to adjust shari'a rules to “modern standards.” He first clears a theoretical space in which the state can judge and act freely in limiting the liberties of its indi­vidual citizens in the public interest—an interest that presupposes the con­ditions in which civilized life can be lived by all.

It is in the English article (addressed to European readers) that Safwat more boldly represents the Qur’an as a religious text that mixes to­gether moral and legal rules: “the liberty of a Mohammedan is only re­stricted by the positive commandments of the Koran. I say positive’ to dis­tinguish the positive rules of law from those of morality which in the Koran are mixed together, and to distinguish them, we have to look for the nature of the sanction.”⁷⁵

The distinction between law and ethics is itself made in jurisprudential terms that are traceable in European thought at least as far back as Grotius,⁷⁶

75.

76. See J. B. Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy, Cambridge: Cambridge University Press, 1998, chapter 4, espe- a distinction expressing the idea that law is the domain of obedience to a civil sovereign and morality the domain of individual sovereignty in accor­dance with inner freedoms (conscience). The idea of an inner, conscience- driven moral law is taken for granted by Safwat. Where the disregard or breaking of a rule leads to punishment imposed by the state, says Safwat, there is (secular) law; where transgression is sanctioned only by punish­ment in the next world, there is (religious) morality. The interesting point here is not simply that law and morality are distinguished (medieval Is­lamic jurists made that distinction too, as we shall see in the next section), but that the distinction between “morality” and “law” can be defined in parallel ways as rules, and that their obligatory character is constituted by the punishment attached to them.

There are at least two ways in which Safwat’s clear separation between the scope of morality and of law may be described, the first of which one might call ethnographic. Thus even in the Western liberal scheme morality is connected to law in complicated ways. The authority of legal judgments is dependent on the ways justice, decency, reasonableness, and the like are culturally interpreted; the credibility of witnesses is linked to ways “good” or “bad” character are culturally recognized, assessed, and responded to. Furthermore, there is the general sense that the laws in force should be consistent with the prevailing morality.^{[138] [139] In Egypt the codes introduced at the turn of the century were largely European and secular while morality was largely rooted in Islamic tradition.[140] This fact leads to the question of how interpretive tendencies and assumptions of “secular” law engage with sensibilities and predispositions articulating “re­ligious” morality.}

It might appear at first sight that I am making a familiar argument about the introduction of “foreign codes.” But my concern here is nei­ther with the geographical origin of the law nor with codification as such. I argue that it is the power to make a strategic separation between law and morality that defines the colonial situation, because it is this separa­tion that enables the legal work of educating subjects into a new public morality.⁷⁹ The European task of establishing order in Egypt was based on a new notion of “order,” as Timothy Mitchell has rightly argued.⁸⁰ But it also required a new conception of what law can do and how it should do it.

Of course I am not proposing that Safwat’s theoretical text is a com­plete copy of Western secularism—he is concerned, after all, to adapt Is­lamic ethics and law to Western jurisprudential thinking, and the Qur’an is his theoretical starting point. Nor do I assume that the clarity of his the-

79. James Fitzjames Stephen (one-time legal member of the viceroys council) describes the principles that animate the task of the colonial govern­ment in India as follows: “The government which now exists [in India] has not been chosen by the people. It is not, and if it is to exist at all, it cannot look upon itself as being, the representative of the general wishes and average way of thinking of the bulk of the population which it governs. It is the representative of a totally different order of ideas from those prevalent amongst the natives of India. To these ideas, which are those of educated Europeans, and particularly of educated Englishmen, it attaches supreme importance; they are the ideas on which European civilization is founded. They include all the commonly ac­cepted principles of European morality and politics—those for instance which condemn cruel acts like the burning of widows, or the offering of human sacri­fices in the name of religion, or the infliction of disabilities, as for instance dis­ability to marry, on account of widowhood or a change of religion, and others of the same sort” (J. E Stephen, “Foundations of the Government of India,” The Nineteenth Century, no. 80, October 1883, p. 548). The law, while not itself a moral system, is indispensable to the replacement of an inferior morality by a su­perior one.

80. Timothy Mitchell, Colonizing Egypt, Cambridge: Cambridge University Press, 1988.

Reconfigurations of Law and Ethics in Colonial Egypt 241 ory is a reflection of institutional practice (the insertion of discourses such as Safwat’s into processes of institutional legal reform in modern Egypt still needs to be researched). I am looking for systematic shifts in reasoning about legal reform that indicate ways in which “the secular” are understood and applied in colonial Egypt.

The second way of describing Safwat’s division between (secular) law and (religious) morality is analytic. It follows the conceptual implications of the fact that his reading cuts right across the famous sharia classifica­tion— ‘ibàdàt (rules governing relations between God and the faithful), mudmaldt (rules governing proper behavior between the faithfill), and hudud (rules defining limits to the behavior of the faithful through penal­ties). Modern secular law not only excludes the first as being beyond its purview. It also redraws the distinctions applicable to proper behavior and punishments in terms of “civil law” and "criminal law.” It does all this in accordance with different principles. Furthermore, Safwat’s division delib­erately ignores the fivefold shari'a ranking of acts—^required (wàjib), rec­ommended (mustahabb), indifferent (mubàh), discouraged (makrilh'), and forbidden (haram).

The grid separating “law” from “morality” that Safwat imposes on. the shari'a differs sharply from its traditional language. The concept of virtue (fadild) in the latter cannot be defined simply in terms of the type of sanction (this-worldly versus otherworldly) or of the type of governance (subjective freedom versus obedience to external authority). It constitutes a dimension of all accountable behavior (including justiciable acts), in the sense that while all such behavior is the responsibility of a free agent, it is also subject tò assessments that have practical consequences for the way one lives in this world and the next. And all practical programs for the cultivation of moral virtues presuppose authoritative models. In the case of the sharia the ultimate model is that of the Prophet Muhammad as embodied in the discursive tradition known as hadith. In other words, the shari'a in this conception is the process whereby individuals are edu­cated and educate themselves as moral subjects in a scheme that connects the obligation to act morally with thè obligation to act legally in compli­cated ways.