Reconfigurations of Law and Ethics in Colonial Egypt
At the beginning of this study I proposed that the modern idea of a secular society included a distinctive relation between state law and personal morality, such that religion became essentially a matter of (private) belief—a society presupposing a range of personal sensibilities and public discourses that emerged in Western Europe at different points in time together with the formation of the modern state.
Another way of putting this is that the idea of religious toleration that helps to define a state as secular begins with the premise that because belief cannot be coerced, religion should be regarded by the political authorities with indifference as long as it remains within the private domain. The individual’s ability to believe what he or she chooses is translated into a legal right to express one’s beliefs freely and to exercise one’s religion without hindrance—so “religion” is brought back into the public domain. This freedom is qualified, however. The public expression of religious belief and performance of religious ritual must not be a probable cause of a breach of the peace, nor should it be construable as a symbolic affront to the state’s personality. Perhaps the most famous examples of this have occurred in recent years in France (see Chapter 5). This indicates that the secular state, like others, is conceived of as a person who can be morally threatened.In this final chapter I begin with two questions: How did Muslims think about secularism prior to modernity? What do Muslims today make of the idea of the secular? In contemporary polemics about the proper place of religion in Egypt several writers have claimed that secular life was always central in the past, and seen to be such, because religious law (that is, the shari'd) always occupied a restricted space in the government of society.1 But the issue here is not an empirical one.
It will not be resolved simply by more intensive archival research, just as understanding the place of the secular today requires more than mere ethnographic fieldwork, and more than a vigorous defense of its value for the political world we inhabit. A careful analysis is needed of culturally distinctive concepts and their articulation with one another. So in what follows I shall focus on Egypt in the late nineteenth and early twentieth century, a period in which significant shifts occurred in the relations between law, religion, and morality. So in spite of the questions with which I begin, I shall refer to premodern concepts and contemporary discourses briefly—and then only in order to draw certain contrasts.One clue to how the secular was thought before the involvement of Egyptian history with the history of the modern West is found in nineteenth-century attempts to translate the term “secular” and its cognates into Arabic. The commonest word used today for the adjectives “secular” and “lay” as well as for “secularist” and “layman” is ‘almaniyy.2 This latter word, now the most commonly used, was invented in the latter part of the nineteenth century. (There is no entry for it or for any of its cognates in Lane’s Arabic-English Lexicon compiled in Egypt in the first half of the nineteenth century.) The word yields the abstract noun 'almaniyyah to mean “secularism” or “laicism.”
1. See, e.g., Muhammad Nur Farhat, alrMujtama’wa al-shana wa aLqdnun, Cairo: Al-Hilal 1986, p. 39.
2. The only relevant entry in Muhtt al-Muhtt (the first modern Arabic- Arabic dictionary, published in Beirut in 1870) is ‘almaniyy, which it renders as nonclerical and which it derives from al-‘dldm, the world. Thus the Arabic-English Al-Mau>rid (Sth edition, 1996) gives the following: “secular, lay, laic(al); secularist; layman” for ‘almaniyy, “secularism, laicism” for almaniyyah·, “to secularize, laicize” for 'ahnanat, and “secularization, laicization” for 'almanah [the nominal form derived from the invented verb].
'Almanah is also equated with 'almaniyyah. The relative recency of this concept is also reflected in the fact that The Oxford English- Arabic Dictionary of Current Usage (1972) gives ‘ilmaniyy and not the now standard ‘almaniyy for “secular.” The former is still used conversationally—often provoking pedantic attempts at correction—and its popularity may in part be due to the implicit suggestion that the concept of “secularism” is related to ‘ilm, meaning “knowledge” and “science,” in contrast to “religion.” Indeed Ahmad Hatum in his “‘ilmaniyyah bi-kasr al-‘ayn la bi-fathiha” (al-Naqid, vol. 44, no. 20,1990) distinguishes interestingly between the two forms.Badger’s English-Arabic Lexicon, published in 1881, gives two words for “secular” in the sense of “lay, not clerical”: 'almaniyy and ‘ammiyy. But the latter carries the senses of “common,” “vulgar,” “popular,” and “ordinary.” Badger also renders “secular,” in the sense of “worldly,” as dunyawiyy (and dunyawiyy). It has no entry for “secularism,” but under “secularity” it gives hubbu al- 'alam (literally, “love of the world”) as well as dunyawiyyah (the abstract noun from the word for “worldly”), and ‘alamiyyah, on the same pattern, derived from the word 'alam, meaning “world” or “logical universe.” The latter occurs in the familiar Quranic epithet for God, rabb al-’alamtn, “Lord of the two worlds” (namely, the world of men and the world of jinns [spirits]). But 'alamiyyah also signified “the state of knowledge,” that is to say of Islam, as opposed to jdhiliyya, “the state of ignorance” or paganism.3 In contemporary usage 'alamiyyah signifies “internationalism” not “secularism” or "secularity,” although the adjectival form 'dlamiyy does also carry the sense of “worldly” and “secular.”
The response of Egyptians to the concept of secularism, their attempt to further it or attack it, was mediated by this work of translation. Thus in the nineteenth century the verbal form “to secularize” had no single Arabic equivalent.
It is only very recently that the verb 'almana was invented by working backward from the abstract noun 'almaniyyah. (The normal procedure in Arabic is for the verbal root form to yield qualifiers and substantives.) More interesting is the fact that the verbal form was restricted to a legal sense indicating transfer of property—as in the Reformation sense of saecularisatio (secularization) mentioned in Chapter 5. Thus the process of “secularization” was rendered tahwil al- awqafwa al-amlak al-mukhtassa bi al-'ibada wa al-diyana ila al-aghrad 'alamiyyah^—literally, “the transfer to worldly purposes of endowments and properties pertaining to worship and religion.” One problem with that was that a waqf (normally translated as a “religious endowment”) might have a “religious or devotional purpose” (if it was a mosque, say), but more often than not it had no such purpose (as in the case of agricultural lands), or, more commonly, several purposes, “religious” and “nonreligious” (hospitals and schools, for example). Waqf (plural awqaf) was simply the sole form of inalienable property in the shan'a, described by Max Weber and others as “sacred law.” The Hanafi school3. See Kazimirski’s Dictionnaire Arabe-Franfais, revised and corrected by Ibed Gallab, volume 3, Cairo, 1875.
4. Badger, English-Arabic Lexicon, p. 937.
of law, followed in Egypt, defines the endowment of a waqfas (i) the extinction of the founders right and the transfer of ownership to God, (2) that therefore becomes perpetual and irrevocable, and (3) which is devoted tosthe benefit of mankind.
In Europe, the word “secularism” denoting the doctrine that morality, national education, the state itself, should not be based on religious principles, dates from the middle of the nineteenth century5—as does the French “lai’cisme” (“the doctrine that gives institutions a non-religious character”).6 The French expression “lai’cisme” draws on the Jacobin experience, one that authorizes a stronger, more aggressive secularism (including hostility toward the presence of some “religious symbols” in state institutions) than the British equivalent does.
There are therefore significant national differences in the way “secularism” is understood in Europe corresponding to different political histories. But by and large these are family differences: they articulate particular struggles over whether religious doctrines and communal morality—in their historical variety—should be allowed to affect the formation of public policy. So although both the concept and word were available in nineteenth-century Western Europe— used in connection with different institutions and politics—no attempt was made at that time to supply an Arabic word. Of course, this verbal lack does not in itself prove that Egyptians in the nineteenth century had no conception of “secularism.” It does indicate, however, that political discourse in Arabic did not need to deal directly with it as it has since then. In this sense, secularism did not exist in Egypt prior to modernity.What made its existence possible? In this chapter I try to trace some changes in the concept of the law in colonial Egypt that helped to make secularism thinkable as a practical proposition. I focus on some of the ways that legal institutions, ethics, and religious authority became transformed, my purpose being to identify the emergence of social spaces within which “secularism” could grow. I start by recounting the well-known story of the gradual narrowing of sharia jurisdiction (that is, a restriction of the scope of “religious law”) and the simultaneous importation of European legal codes. This process has been represented by historians as the triumph of the rule of law, or as the facilitation of capitalist exploitation, or as the complex struggle for power between different kinds of agent—especially
5. See The Oxford English Dictionary.
6. See Dictionnaire alphabitique et analogique de la langite franfaise.
colonizing Europeans and resisting Egyptians. Each of these perspectives may have something to be said for it, but my concern here is with something else: with exploring precisely what is involved when conceptual changes in a particular country make “secularism” thinkable.
»I therefore look briefly at the wider context of cultural change and Islamic reform, and I point to the importance of the modern state for these developments. In this context the state is not a cause but an articulation of secularization. I stress that I do not aim at a total history of legal reform, although my focus is on the reform of the sharia, regarded by would-be reformers as a religious law that is largely inappropriate for a modern society. So I do a reading of a report on the reform of the sharia court system written by the highly influential Islamic reformer Muhammad Abduh in 1899 to examine the ways in which it reflects the new spaces of a modernizing state. I then do the same for Qasim Amin’s famous book on the legal emancipation of women, and for the writings of the lawyer Ahmad Safwat who, as early as the second decade of the twentieth century, proposed principles for the reform of the sharia crucial to the constitution of a secular state. Safwat is not as well known or influential a figure as Abduh—or even Abduh’s friend Amin. Indeed, his work is little known today. But his attempt to think through separate domains for state-administered law and religiously derived morality is highly instructive for understanding a space necessary to the secularizing impulse. The separation presupposes a very different conception of ethics from the one embedded in the classical shari'a. That is why my reading of Safwat s texts is followed by a discussion of the relation between law and ethics in classical Islamic jurisprudence (figh)· And why I return from this digression into classical thought to an analysis of connections between ritual worship (‘ibaddt)—as stipulated in the rules of the sharia—and the authority of the religious law. This returns me to another aspect of Muhammad Abduh’s discourse.
My interest in the texts I deal with is not in the influence they may have had on social and legal reform but in the arguments they display. I claim that the shifts in these texts reflect reconfigurations of law, ethics, and religious authority in a particular Muslim society that have been ignored by both secularists and Islamists.