Moral autonomy and family law
“The sharia was not abandoned,” writes Nathan Brown, “but it was restricted to matters of personal status and to areas where it could be clearly and easily codified.”[127] But when the sharia is structured essentially as a set of legal rules defining personal status, it is radically transformed.
This is not because the sharia, by being confined to the private domain, is thereby deprived of political authority, something that advocates of an Islamic state argue should be restored. On the contrary, what happens to the shari a is best described not as curtailment but as transmutation. It is rendered into a subdivision of legal norms (fiqh) that are authorized and maintained by the centralizing state.In the perspective on law reform in Egypt that I adopt, a citizen’s rights are neither an ideological legitimation of class rule (“Marxism”) nor a means for limiting arbitrary government (“liberalism”). I see them as integral to the process of governance, to the normalization of social conduct in a modern, secular state. In this scheme of things the individual acquires his or her rights mediated by various domains of social life—including the public domain of politics and the private domain of the family—as articulated by the law. The state embodies, sanctions, and administers the law in the interests of its self-governing citizens. The states concern for the harms and benefits accruing to its subjects is not in itself new. But—as Foucault argued—the modern state expresses this concern typically in the form of a new knowledge (political economy) and directs it at a new object (population). It is in this context that “the family” emerges as a category in law, in welfare administration, and in public moralizing discourse. The family is the unit of “society” in which the individual is physically and morally reproduced and has his or her primary formation as a “private” being.
It is often assumed that colonial governments were reluctant to interfere with family law because it was the heart of religious doctrine and practice. I argue, on the contrary, that the shan'a thus defined is precisely a secular formula for privatizing “religion” and preparing the ground for the self- governing subject.This brings me to Muhammad Abduh’s report on the shart'a courts written in 1899, the year he was appointed Grand Mufti of Egypt.49 Abduh’s recommendations in this remarkable mandate for reform cover a range of technical topics—improving court buildings, increasing the salaries of judges and clerks and raising their standard of education, expediting the hearing of cases and the execution of judgments, instituting regular inspections and a better system of recordkeeping, simplifying interaction with litigants and clarifying the official language used, and so on. The reforms Abduh proposes here are therefore largely to do with procedure and setting. The shart'a, he insists, is not itself in need of improvement but the books in which it is written are unnecessarily difficult for litigants to understand, and it could therefore do with the kind of rationalizing work that the Ottoman state undertook for the majalla™ But what is striking is the way Abduh approaches the basic social function of the shart'a courts in terms of something that has come to be called “the family.”
These courts, he writes, intervene between husband and wife, father and son, a guardian and his ward, and between brothers. There is no right relating to kin over which these courts do not have jurisdiction. This means, says Abduh, that shart'a judges look into matters that are very private and listen to what others are not allowed to hear. For even as they provide the framework of justice, so they are a depository for every kind of family secret. In other words, the courts are expected both to guard the privacy of the words and acts of domestic life and to work through the sentiments on which social life ultimately depends.
Since the shart ‘a code of 1897 explicitly required a public hearing of cases (something Abduh must have been aware of in writing his report) his emphasis on secrecy expresses the old liberal dilemma of addressing both privacy and publicity in the legal culture.Abduh observes that in these modern times, “Most of the lower class and a fair number of the middle and upper classes have abandoned kinship
49. Muhammad Abduh, “Taqrir isldh al-mahakim al-shar‘iyya,” in Al- A'mal al-kdmila lil-imam Muhammad ‘Abduh, ed. Muhammad Imara, vol. 2, Beirut, 1980, pp. 217-97. Surprisingly, it is not mentioned in modern histories of law in Egypt.
50. Ibid., p. 295.
Reconfigurations of Law and Ethics in Colonial Egypt 229 and affinal sentiments, and so they resort to the sharia courts in the matter of domestic relations. With regard to such matters as daily expenses, the accommodation and comfort of the wife in disputes with the husband’s family, with regard to provisioning and other affairs of the children, tp their education until a pre-determined age, and to everything needed for such matters, the resort among those we have mentioned is now to the than a courts. It is obvious,” Abduh goes on, “that a people (sha'b) is composed of households that are called families (al-buyut allati tusamma 'd’ildt) and that the basis of every nation (umma) is its families, because a totality is logically made up of its parts. Since the welfare of families is connected in its most detailed links with the sharia courts-—as is the case today—the degree to which the nation needs the reform of these courts becomes clear. It is apparent that their place in the structure of Egyptian government is foundational, so that if they were to weaken, the effects of this weakness would be evident in the entire structure.”51
Among the many recommendations in his report, Abduh stresses the need for a more careful separation of functions between administration and jurisprudence (al-iddra wa al-fiqh), and he urges greater independence of the sharia courts from state control.
Thus even though he considers the. sharia system to be integral to governance, he does not consider the state to be the source of its authority. Nevertheless, he regards the sharia to be essential to the restoration of “the family,” especially among the lower classes. Without the work of the shari a courts—which are in effect “family courts”—he sees social life itself in danger of moral collapse. By being identified with the family the shari'a thus becomes functionally central at once to political order and to the total body that will eventually be represented as “society,” The modern Arabic word for society (mujtamaj is not yet linguistically available, nor is the modern concept to which it now refers. For insofar as that concept is political, it signifies a population held together by social relations where “the social” is constituted by the theoretical equivalence of autonomous individuals.52 The theological concept umma that Abduh employs has the sense of a collective body of Muslims bound together by their faith in God and the Prophet—a faith that is emit Ibid., pp. 219-20.
52. The entry for “society” in Badgers English-Arabic Lexicon, London (1881), gives neither the word mujtama', nor any reference to the modern concept. Lane’s Arabic-English Lexicon, London (1872), also has no reference to the modern concept of “society”; the sense of mujtama' is still only “a meeting place.”
bodied in prescribed forms of behavior. It is therefore quite different from the idea of a society made up of equal citizens governing themselves individually (through conscience) and collectively (through the electorate). That idea was just beginning to be deployed in Western Europe in the nineteenth century as the object of knowledge-based interventions[128]—by movements for universal franchise,[129] as well as movements for the moral improvement of the poor, for the practical reform of education and the law, and for the organization of sanitation and hygiene in urban space.
It is in this context that I think one may place the reform that eventually translates the sharVaas “family law.” For the family is not merely a conservative political symbol or a site of gender control. By virtue of being a legal category it is an object of administrative intervention, a part of the management of the modern nation-state—not least in the twentieth-century projects of birth control. (Paradoxically, the “family” becomes salient precisely when modern political economy, the principal source of government knowledge and the principal object of its management, begins to represent and manipulate the national population in terms not of “natural units” but of statistical abstractions-—economic sectors, consumers, active labor force, property owners, recipients of state benefits, demographic trends, and so forth. At the level of public knowledge and activity “the individual” becomes marginalized.)
It is because the legal formation of the family gives the concept of individual morality its own “private” locus that the shana can now be spoken of as “the law of personal status”—qanun al-ahwal al-shakhsiyya. In
Reconfigurations of Law and Ethics in Colonial Egypt 231 this way it becomes the expression of a secular formula, defining a place in which “religion” is allowed to make its public appearance through state law.55 And the family as concept, word, and organizational unit acquires a new salience.