A digression on medieval ‘fiqh’

This point is important for my argument. The conception of the law

assumed in Safwats texts clears the space not only for the modern, reform­ing state, but also for a secular morality.

Johansen reminds us of the colonial context of orientalist studies of the shart'a, and observes that Snouck Hurgronje, the first Western author­ity on the subject, regarded fiqh as an incoherent mixture of religion, ethics, and politics—not as a functioning law but as a theory of the ideal Muslim society that had practical significance only in matters relating to ritual devotions, family relations, and endowments. This view, says Jo­hansen, has had a profound effect on Western students of Islam who have tended to see fiqh as a deontology—a system of religious and moral du­ties—rather than as a law in the rational sense.

Joseph Schacht, perhaps the most important orientalist of the twen­tieth century to specialize in Islamic law, drew on Max Weber’s distinction between procedural and substantive rationality, but retained his notion of the shari’a as “sacred law.”⁸² However Schacht did see that fiqh was not simply a compendium of religious duties but a system of subjective rights, and so inaugurated a new; and more fruitful, approach because fiqh could

81. Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Leiden: Brill, 1999.

82. See Joseph Schacht, Introduction to Islamic Law, Oxford: Oxford Uni­versity Press, 1964.

Reconfigurations of Law and Ethics in Colonial Egypt 243 now be seen as a legal system that private individuals could use “for their individual strategies of claims and counter-claims. It is a law in which in­dividuals can create individual norms through their actions and can pursue individual claims against others. It enters into the world of social relations and ceases to be an abstract religious duty.”⁸³

The aim of treating fiqh as real law, with changing implications for everyday life, is extremely important, and Johansens formulation of this point opens the way for a comparative study of Islamic law that is not mired in dubious evolutionary assumptions—and therefore also for serious consideration of the relations between law and ethics in the Islamic tradi­tion. But the following question suggests itself: Is the manipulative model the only way of representing law as “real”? And is this why we are urged to see fiqh as essentially individualistic? There seems to be a connection be­tween the two in Johansens argument, and in particular in his opposing “the world of social relations” to “abstract religious duties.” And yet, are re­ligious duties not themselves partly constitutive of the world of social rela­tions? For although not all social relations entail religious duties (buying and selling legitimate goods, for example), some do (an offspring’s obliga­tions to his or her parents, for instance).

Johansen extracts two major questions that he finds implicit in Schacht: (1) how the legal dimension relates to the ethical and religious di­mension, and (2) how subjective rights relate to religious duties. The diffi­culty with Schacht, as well as with contemporary Arab jurists such as San- huri and Shahata who have taken a similar fine, is that while they recognize the distinctive character of the legal dimension of fiqh, they ignore its eth­ical dimension. Johansen makes this point as follows: "in all these attempts

83. Johansen, pp. 54-55.

to bring the fiqh back into law those who want to do so act as jurists who refer to legal texts. The liturgical acts, the ethical content of those norms which cannot be applied by courts but which address the conscience of the individual.believers, their forum internum, in short, the religious dimension of the fiqh, has hardly been considered as an object of legal reconstruction and would need a completely different approach.”^[141] Johansen quite rightly insists that attention must be paid to both the religious and the ethical di­mensions if the connections between Islamic law and ethics are to be ex­plained. Thus Schacht failed to consider that “ownership” is given a differ­ent moral and religious value in different domains,^[142] a difference reflected in the fact that, as Johansen observes, in some cases “intention”—regarded as an inner, psychological state—is considered legally critical for the trans­fer of ownership, and in others it is only the form of words used in the transaction that is relevant.

Finally, Johansen argues that Schacht and Hurgronje (and Weber) se­riously underestimated the scope and significance of doctrinal disagree­ments between the schools. Dissent on details was not regarded as heresy. Johansen elaborates this point with skill and erudition and sums it up as follows: “The respect for normative pluralism (ikhtilaf) is possible only because the fiqh scholars conceive an ontological difference between the knowledge as revealed by God in Koranic texts, the prophet’s praxis or the community’s consensus on the one hand, and the knowledge which human beings acquire through their own reasoning. The first one contains ab­solute truth, the second one is fallible human reasoning. The second one has to interpret the first but cannot aspire to reach its rank. Therefore Mus­lim jurists recognize the contingency of all results of scholarly reasoning. The acknowledgment of the contingency' of all human action and reason­ing is at the basis of the fiqh as a discipline which comprises different methods and schools of thought (madhahib) and different organizations of scholars and upholds the cohesion of the scholars and doctrines.”^[143]

Johansen’s overall argument is complicated. There is, on the one hand, the thesis that Islamic jurists have traditionally held all human (and therefore legal) reasoning to be based on probability not certainty, and, on the other hand, the proposition that Islamic law has always distinguished

Reconfigurations of Law and Ethics in Colonial Egypt 245 moral judgments from legal ones. Both theses are brilliantly expounded. The two then seem to be linked together through the idea that “certainty” ('ilm yaqin) depends on observability—on the forum externum—with which the law deals, as opposed to the forum internum, the domain of “conscience” and so of ethics. It is not always clear whether the absolute certainty referred to in this argument relates to the authority of the divine text or to that of conscience.⁸⁷ In any case, it seems to me that when it is conceived as the hidden seat of self-government, “conscience” refers to something at once modern and Christian.

What defines “conscience,” in modem Christianity, is not simply that it is “interior” and “hidden” (the mind of someone who calculates his or her own interests is also hidden to others) but that it is the seat of a moral func­tion responding sovereignly to the question: “What should I do if I am to do that which is good?” This conception of ethics has a history,⁸⁸ of course, and its great theorist was Kant. “The question here is not,” wrote Kant, “how conscience ought to be guided (for conscience needs no guide; to have a con­science suffices), but how it itself can serve as a guide in the most perplexing moral decisions.”⁸⁹ This proposition, with its emphasis on the absolute moral autonomy of the subject, would surely be rejected by medieval Islamic the­ologians and jurists. Wouldn’t Kant’s equation of morality with the certainty of sovereign, internal judgment also come into question? “It is a basic moral principle, which requires no proof,” Kant insisted, “that one ought to hazard nothing that may be wrong... Hence the consciousness that an action which I intend to perform is right, is unconditioned duty.... [Cjoncerning the act which /propose to perform I must not only judge and form an opinion, but I must be sure that it is not wrong; and this requirement is a postulate of con­science, to which is opposed probabilism, i.e., the principle that the mere opinion that an action may well be right warrants its being performed.”⁹⁰

87. “The forum internum is the instance of the religious conscience,” writes Johansen, “the seat of the relation between God and the individual, of ve­racity and of absolute identity between the truth on the one hand, rights or ob­ligations on the other. The forum externum is an instance of contingent decisions which are legally valid and whose assertions about the facts of the cases are prob­able” (ibid., p. 36).

88. See Alasdair MacIntyre, A Short History of Ethics, London: Macmil­lan, 1966.

89.

90. Ibid., pp. 173-74; emphases in original.

Kant detested the old Catholic discipline of moral casuistry because it sought to guide the conscience, especially in situations of uncertainty, and would also surely have detested the practice of seeking fatwas. His standpoint suggests that a category like makriih (reprehensible) has no place in a truly moral vocabulary because it dilutes the absolute wrong­ness of an act to which it is applied.⁹¹ But seen simply as the products of ethical judgment one misses the practical use of the words makriih (rep­rehensible) and mustahabb (desirable) in cultivating virtuous thought and behavior—forms of behavior that, incidentally, carry no punitive sanctions.

This modern view not only takes die moral question to be quite dif­ferent from the “social” question “How should I behave if I want to do well?” but assumes that doing well and having it socially recognized that one is doing well have nothing to do with acting morally. And yet it is pre­cisely the way in which the answers to these two questions have been con­nected (and disconnected) in Muslim societies that needs systematic in- vestigation—that is, how learning forms of thought and behavior properly (that would be socially recognized and admired as demonstrations and ex­emplars of religious virtues) comes to be a precondition for acting ethically. Johansens general approach makes it possible to investigate this connec­tion fruitfully.

Johansen is absolutely right to maintain that Islamic law has always distinguished between justiciable norms and those that are not subject to the courts ruling. Indeed this point is often missed by contemporary scholars dealing with “intentionality” in Islamic law. But is this point best made by equating legal norms with observable acts and ethical norms with nonobservable ones? I think not. Acting in a way that people generally rec­ognize as makriih (reprehensible) is observable, since an act is what it is be­cause of the description under which it falls, and yet as Johansen himself is at pains to point out, this behavior does not entail a judgment by the court in spite of its being “observable.” On the other hand, acts that are justicia­ble (for example, contracts) may require an inquiry into aspects of behav­ior that are “nonobservable” (such as intention)—as Johansen himself clearly notes.

'91. Kant’s requirement that in order to act morally the conscience must he certain of its rightness would also, incidentally, rule out the discourse of modern bioethics that deals in probabilities rather than certainties—but that’s another matter.

Johansens attempt to identify the ethical dimension offiqh in its rela­tion to the law is of the greatest importance, but his characterization of it in terms of disembodied “conscience” does not seem to me quite appropriate. Besides it is, so I would argue, not essential to his basic view offiqh. My po­sition, at any rate, is that one should not try to map the interior/exterior bi­nary directly onto ethics/law. The latter has to do with authoritative judgments in cases of dispute over transactions and dispositions and in cases where transgressions against particular norms are alleged to have oc­curred. Both kinds of judgment carry important social consequences, and both often depend on reconstructing what was not “visible.” The crucial point is that they are, as justiciable cases, sanctioned by the use of violence that the court can authorize. One might therefore reformulate the matter by saying that it is not strictly the literal visibility of a justiciable event that is at issue here but its objectification. Punishment inflicted on the body-and-mind is possible only when a justiciable event can be consti­tuted as a discursive object.

While the formation and exercise of virtues (a disciplinary process in which rites of worship are involved) do overlap with what in modern parl­ance is called “ethics,” one must be careful not to assume that ethics as such is essentially a matter of internal conditions, with conscience as a sovereign matter. That conscience is a purely private matter at once enabling and jus­tifying the self-government of human beings is a necessary (though not sufficient) precondition of modern secular ethics. The sharia, in contrast, rejects the idea that the moral subject is completely sovereign (Kant’s “con­science needs no guide; to have a conscience suffices”). Islamic jurists cer­tainly recognized that a Muslims relation to God {fimd baynahu wa bayn alldh) cannot be the object of a judges (qddi’s) verdict. But this is not be­cause they thought this matter was practically inaccessible; it is simply that being set doctrinally outside the jurisdiction of an earthly court of law, they regarded it as legally inviolable.⁹² Nevertheless, they regard the individual s ability to judge what conduct is right and good (for oneself as well as for others) to be dependent not on an inaccessible conscience but on embod­ied relationships—heavily so in the learning process of childhood, but also

92. Hence, as Johansen has himself pointed out, classical Hanafi doctrine forbade torture to extract evidence, but later fiqh accepted it for reasons of expedi­ency (op. cit., pp. 407-8). See also his excellent essay, “La d^couverte des choses qui parlent: La legalisation de,la torture judiciaire en droit musulman (XHIe-XIVe sifccles),” Enquete, no. 7,1998.

in adulthood where the intervention of authorities, relatives, and friends in particular situations may be critical for the exercise of that ability or for dealing with the consequences of its failure. Here body-and-mind is the object of moral discipline.

In brief, I submit that although the shari'a does distinguish between “law” and “ethics,” neither term should be understood in its modern, sec­ular sense.