Reforming Islam by reforming its law

The secularization of the law in Egypt has not only involved the circumscription and reform of the shari'a, it has been deeply entangled with the nineteenth-century reformulation of Islamic tradition generally.

Reinhard Schulze once asked a question most historians have taken for granted: Why did nineteenth-century Islamic reformers take so eagerly

31. Brown, pp. 56—60.

32. For example, in homicide cases, as Rudolph Peters points out, “accord­ing to the Sharia, the next of kin of the victim can play an active role in the pro­ceedings, whereas, according to the secular, Western type laws, they are left out of the trial, unless summoned as witnesses” (R. Peters, “Murder on the Nile,” Die Web des Islams, vol. 30,1990, p. 116.

33. See Harold Tollefson, Policing Islam: The British Occupation of Egypt and the Anglo-Egyptian Struggle over Control of the Police, 1882—1914, Westport, CT: Greenwood, 1999.

Reconfigurations of Law and Ethics in Colonial Egypt 219 to the European interpretation of Islamic history as one of “civilizational decadence”?³⁴ The interesting answer he gives refers to political economic changes as well as to the cultural consequences of print. European capital­ism, he points out, transformed the eighteenth-century mode of surplus extraction through rent into a system of unequal exchange between metro­pole and colony. Because the traditional forms of political legitimation were now no longer appropriate to the colonial situation, he argues, a new ideological need was created—and eventually met by the indigenous elite that emerged out of the social-economic disintegration of the old society and of the effects of print on its culture. European historical reason (in­cluding the notion of an Islamic Golden Age followed by a secular decline under the Ottomans) was adopted by the new elites, he suggests, via books from and about Europe, as well as the Islamic “classics” selected for print­ing by European orientalists and by Westernized Egyptians.

Ijtihad (a term used by earlier Muslim scholars to refer to independ­ent legal reasoning on matters about which they were not in agreement) was made to mean the general exercise of free reason, or independent opin­ion, directed against taqlid (the unreflective reproduction of tradition) and in the cause of progressive social reform. This extension of the sense of ijtihad has been commented on critically by generations of orientalists. Thus Charles Adams writes that “In orthodox Islam, the right of ‘ijtihad’ (independent opinion) in matters of law and religion, belonged only to the great masters of the early generations and has consequently not existed since the third century A.H. [ninth century C.E.]. Muhammad ‘Abduh and his followers have, however, claimed this right for the present generation, as for every other, so that Islam, and particularly its legal system, may be adapted to present-day requirements.”³⁵ And Aharon Layish pronounces on the intellectual inadequacy of Muhammad Abduh, Rashid Rida, and their followers: “the modernists did not succeed in shaping a new legal doctrine amalgamating Islam with liberal elements of Western civilization. Their attempt to improve the doctrine of selection and reopen the gates of

34. Reinhard Schulze, “Mass Culture and Islamic Cultural Production in 19th Century Middle East,” in Mass Culture, Popular Culture, and Social Life in the Middle East, ed. G. Stauth and S. Zubaida, Boulder, CO: Westview, 1987.

35. Charles Adams, Ishfm and Modernism in Egypt, London: Oxford Uni­versity Press, 1933, p. 70, n. 1.

ijtihdd\sy refashioning traditional mechanisms was immature, unauthori- tative and unenduring. Their efforts were not continued, at any rate not by the authorized exponents of the shart‘a.”^i& Since it was precisely the “au­thorized exponents of the than a” that Abduh and Rida sought to dislodge (and in some measure succeeded in dislodging) it is evident that Layish’s critique—and others like it³⁷—operates with an a priori concept of “or­thodox Islam.” Yet this concept seems to me misplaced in the discourse of scholars who aim to write a history of Islamic tradition.

In short, there is no such thing as “real” ijtihddwaiting to be authen­ticated by orientalist method; there is only ijtihdd practiced by particular persons who situate themselves in various ways within the tradition offiqh- When Abduh and Rida draw explicitly on the precedence of the medieval theologian and jurist Ibn Taymiyya, who employed ijtihdd to criticize the status quo of his time, they are invoking a tradition of several centuries— albeit in very changed circumstances—and not simply “refashioning [namely, departing from the legitimate uses of] traditional mechanisms.” That tradition does not consist in employing the principle of universal rea­son. It provides specific material for reasoning—a. theological vocabulary and a set of problems derived from the Qur’an (the divine revelation), the sunna (the Prophet’s tradition), and the major jurists (that is, those cited as authoritative) who have commented on both—about how a contemporary state of affairs should be configured. Since ijtihdd comes into operation precisely when ijma‘ (the consensus of scholars) has failed, the disagree­ment of Abduh and Rida on this point with other Muslims, past and con-

36. Aharon Layish, “The Contribution of the Modernists to the Seculariza­tion of Islamic Law,” Middle Eastern Studies, vol. 14,1978, p. 267.

37. Layish’s assessment of the work of the reformers as both inauthentic and a failure is of a piece with earlier verdicts by Elie Kedourie and Malcolm Kerr. See E. Kedourie, Afghani and Abduh: An Essay on Religious Unbelief and Political Ac­tivism in Modem Islam, London: Cass, 1966; M. H. Kerr, Islamic Reform: The Po­litical and Legal Theories of Muhammad Abduh and Rashid Rida, Berkeley: Univer­sity of California Press, 1966.

temporary, does not signify that their view is no longer “traditional.” On the contrary, that disagreement or difference is what makes it part of the tradition of Islamic jurisprudence.

In fact, recent scholarship on thè history of the shana (by, for exam­ple, Wael Hallaq, Haim Gerber, and Baber Johansen³⁸) has challenged the orientalist thesis, propounded in the West since at least the beginning of the twentieth century, that the Islamic legal tradition became static—that “the gates of ijtihdd were closed,” as the famous phrase has it—after the first formative centuries. That thesis reflects the more general notion that “the traditional” is opposed to “the modern” as the unthinking and unchanging is to the reasoned and new. But argued change was always important to the shana, and its flexibility was retained through such technical devices as urf (custom), maslaha (public interest), and dariira (necessity).

Schulze himself appears to be interested less in whether or not the re­form movement led by Abduh and Rida was intellectually “immature.” In­stead, he tells us that advocating ijtihdd in this new sense provoked the fear among more conventional ‘ulama that they would lose their position of power as the new Islamic intelligentsia emerged, so they too began to take their distance from “tradition.” Nevertheless, says Schulze, “traditional Is­lamic culture” did not disappear. The bastion of that tradition remained mysticism. The movements of rebellion against colonialism were based on this traditional culture, and the hostility between it and colonialism was extended to relations with the official Islam that colonialism had created. Thus Schulze too employs a notion of “traditional Islam” that he identifies with sufism and considers more authentic than the salafiyya attempts at re­form. Schulze writes that the reform movement (isldh} openly turned against every manifestation of mysticism because mysticism represented what the European bourgeoisie disliked most about Islam—irrationalism, superstition, fanaticism.

This is a sophisticated account, and Schulze is right to draw our at­tention to the evolving class structure of nineteenth-century Egypt. But I am not persuaded by it as an explanation. To begin with a substantive point, it ignores the ways the Egyptian reformers were able to draw on

38. W. Hallaq, Law and Legal Theory in Classical and Medieval Islam, Aider­shot: Variorum, 1995; H. Gerber, Islamic Law and Culture, 1600—1840, Leiden: Brill, 1999; B. Johansen, Contingency in a Sacred Law, Leiden: Brill, 1999. some of the ideas and attitudes of the eighteenth-century Hanbalite Ara­bian reformer Muhammad bin Abdul-Wahhab, who was also very suspi­cious of “irrationalism” and “superstition,” and who was prepared to use ijtihad to attack them in order to “purify” Islamic practice—but not be­cause he wanted to get closer to the European bourgeoisie. Ibn Abdul- Wahhab, like ibn Taymiyya before him, was considered by the Egyptian re­formers to be part of their tradition even where they disagreed with him.

Thus theoretically, Schulze’s perspective on the reasons behind dis­cursive and behavioral shifts in Islamic tradition is too instrumental. (Whereas Nathan Brown explains the reform of the Egyptian system of justice in terms of tools for resisting imperialism, Reinhard Schulze sees Is­lamic reform in general as a means of claiming political independence.) When major social changes occur people are often unclear about precisely what kind of event it is they are witnessing and uncertain about the prac­tice that would be appropriate or possible in response to it. And it is not easy to shed attitudes, sensibilities, and memories as though they were so many garments inappropriate to a singular historical movement. New vo­cabularies (“civilization,” “progress,” “history,” “agency,” “liberty,” and so on) are acquired and linked to older ones.

The concept of “tradition” requires more careful theoretical attention than the modernist perspective gives it. Talking of tradition (“Islamic tra­dition”) as though it was the passing on of an unchanging substance in ho­mogeneous time oversimplifies the problem of time’s definition of practice, experience, and event. Questions about the internal temporal structure of tradition are obscured if we represent it as the inheritance of an unchang­ing cultural substance from the past—as though “past” and “present” were places in a linear path down which that object was conveyed to the “fu­ture.” (The notion of invented tradition is the same representation used subversively.) We make a false assumption when we suppose that the pres­ent is merely a fleeting moment in a historical teleology connecting past to future. In tradition the “present” is always at the center. If we attend to the way time present is separated from but also included within events and epochs, the way time past authoritatively constitutes present practices, and the way authenticating practices invoke or distance themselves from the past (by reiterating, reinterpreting, and reconnecting textualized memory and memorialized history), we move toward a richer understanding of tra­dition’s temporality. When setded cultural assumptions cease to be viable,

Reconfigurations of Law and Ethics in Colonial Egypt 223 agents consciously inhabit different kinds of time simultaneously and try to straddle the gap between what Reinhart Koselleck, speaking of “moder­nity,” calls experience and expectation, an aspect of the contemporaneity of the noncontemporaneous.³⁹ But unilinear time together with its breaks— the homogeneous time of modern history—in spite of its being essential to thinking and acting critically, is only one kind of time people imagine, respond to, and use.

Modern history clearly links time past to time present, and orients its narratives to the future. But present experience is also, as Koselleck points out, a reencounter with what was once imagined as the future. The disap­pointment or delight this may occasion therefore prompts a reorientation to the past that is more complex than the notion of “invented tradition” al­lows. The simultaneity of time that this generates is not to be confused, in­cidentally, with what Benedict Anderson identifies as the premodern reli­gious imagination in which cosmology and history are confused, or as the modern secular imagination that links together disparate events on the one hand and nationwide readers on the other hand—two kinds of linkage mediated through the daily newspaper.⁴⁰ Koselleck’s notion of simultaneity relates neither to a confusion of religious imagination nor to coincidences apprehended within homogeneous time. It is intrinsic to the structure of time itself.

(The Arabic word hadith, incidentally, captures nicely the double sense of temporality usually separated in English: on the one hand it de­notes anything that is new or modern, and on the other hand a tradition that makes the past—and future—reencountered in the present.⁴¹ For ha-

39. Gleichzeitigkeit der Ungleichzeitigen. Koselleck sees “modernity” {Neuzeit) as being located precisely in the rupture between the two: “the divide be­tween previous experience and coming expectation opened up, and the difference between past and present increased, so that lived time was experienced as a rup­ture, as a period of transition in which the new and the unexpected continually happened” {Futures Past: On the Semantics of Historical Time, Cambridge, Mass.: MIT Press, 1985, p. 257). Koselleck does not add that in this rupture the old might be remembered in unexpected ways because the future looked forward to is not ex­perienced as such when it arrives. One should not take it as given, as progressivists tend to do, that all positive invocations of the past are inevitably “nostalgic.”

40. Benedict Anderson, Imagined Communities, London: Verso, 1983,

chapter 2..

41. In an excellent (unpublished) paper entitled “The Birth of Tradition and Modernity in 18th and 19th Century Islamic Culture—The Case of Printing,” cGth means “discourse” in the general, secular sense as well as the remem­bered discourse of the Prophet and his Companions that is actualized in the disciplined body/mind of the faithful Muslim—and thus becomes the tradition, the sunna.)

But I have empirical concerns about Schulze’s account too. Muham­mad Abduh’s relation to sufism was more complicated than it suggests. For although Abduh was critical of Sufis who promoted doctrines and practices he considered contrary to the sharia {ghuldt al-sufiyya}, and who served the political ambitions of rulers by providing them with what he called “cor­rupt fatwas,” he strongly endorsed the sufi understanding of ediics and spiritual education (‘ilm al-akhldq wd tarbiyyatal-nufils).⁴²The complexity in Abduh’s views brings out the inadequacy of the kind of binary thinking (familiar to Western students of Islam since Goldziher) that opposes as mutually exclusive “orthodox Islam” to “sufi Islam,” “doctors of law” to “saints,” “rule-following” to “mystical experience,” “rationality” to “tradi­tion,” and so forth.⁴³ This is not to say that Muslims never themselves em­ploy such binaries—especially for polemical purposes—but this situated deployment should not be mistaken by the nonparticipatory scholar as ob­jective evidence of a continuous split in the Islamic tradition. The differ­ence that does exist is between would-be authorize! and practioner. The participant’s engagement with his tradition is in part an involvement with

Reinhard Schulze traces the shifting semantic field of such Arabic words as “new” (hadith), “free from precedent” (ijtihdcT), “original” (asli), and so forth, which reenforces the point I am making.

42. See, for example, the summary of a conversation in 1898 between Abduh and Rida (published under the heading “al-tasawwuf wa al-sufiyyd' in volume three of al-A'mdl al kamila, edited by Muhammad Imara) in which he also de­clares to the latter that “All the blessings of my religion that I have received—for which I thank God Almighty—are due to sufism” (p. 552).

43. The idea that these contrasts are at once mutually exclusive and funda­mental to Islamic thought and practice was taken up and repeated by an older gen­eration of social anthropologists (for example, E. E. Evans-Pritchard, E. Gellner, and C. Geertz). Unfortunately even recent anthropological monographs on mysti­cal Islam (for example, by K. Ewing, who employs psychoanalytic theory in her work) have, by their exclusion of any discussion of the connections between sufism and shari'a, tended to reinforce that binary. But this has now begun to be disputed by scholars. See G. Makdisi, “Hanbalite Islam and Sufism,” in Studies on Islam, ed. and trans. M. Swartz, London: Oxford University Press, 1981. See also the com­ments in Julian Baldick’s Mystical Islam, London: I. B.Tauris, 1989, pp. 7—8.

Reconfigurations of Law and Ethics in Colonial Egypt 225 its multiple temporalities, his selection, affirmation, and reproduction of its authoritative practices. I will return to this point later.

In his informative study of the connection between late-nineteenth- century Islamic reform and the modernizing state, Jakob Skovgaard-Petersen has taken the argument about the ideological role of the new Islamic elites further, with specific reference to a sociology of secularization within Egypt.⁴⁴ He underlines the well-known social developments from the late nineteenth-century onward—the centralization of state authority, the cre­ation of new state institutions, the standardization of administrative rules-—and like Schulze he considers the spread of printing and the emer­gence of a reading public as critical developments. These new develop­ments, he tells us, enabled Islamic reformers to advocate a more “rational and ethical” Islam, especially through the institution of the fatwa (ju­risprudential opinion on matters of religious conduct), in which the idea of self-regulation is crucial. Borrowing from Peter Bergers ideas on secu­larization, he proposes that freeing the individual from religious authority has a double consequence: on the one hand it greatly expands the choices available, and on the other hand religious commitments come to depend on subjective judgment. Because the choices are now situated in a “dis­enchanted” world,⁴⁵ the judgment tends to employ secular reason.

There is some truth in this, but as I proposed earlier, terms such as “rational and ethical” as well as “disenchantment” are problematic (see Chapter i). Perhaps more important is the mistaken assumption (gaining some popularity in Islamic studies) that modernity introduced subjective inferiority into Islam, something that was previously absent. But subjective interiority has always been recognized in Islamic tradition—in ritual wor­ship (.‘ihadat) as well as in mysticism (tasawwuf). What modernity does bring in is a new kind of subjectivity, one that is appropriate to ethical au­tonomy and aesthetic self-invention—a concept of “the subject” that has a new grammar.

In this connection Skovgaard-Petersen makes the familiar progres- sivist claim that “the room for choice is constantly expanding in the case of sexual relations, as it is in most other walks of life”⁴⁶—presumably because sex is no longer hedged around by religio-legal taboos. However, this state-

44. Jakob Skovgaard-Petersen, Defining Islam for the Egyptian State: Muftis and Fatwas of the Par al-Ifta, Leiden: Brill, 1997.

45. Ibid, pp. 23-24.

46. Ibid., p. 384.

ment of increasing freedom obscures a complicated picture. Consider the many legal restrictions in modern life (minimum age of marriage, restric­tions on polygyny, the requirement of state registration of marriage and di­vorce, and so on) that were previously absent. So what one gets is a differ­ent pattern of constraint and possibility reflected in a reformulated criminal law. Consider, further, the fact that many social relations-—such as those between adults and children—become sexualized in modern life, and thus become the object of public anxiety (an uncontrollable emotion) and administrative regulation (involving judgment and intervention). This very modern instance of the interweaving of fantasy and exploitation, for­bidden pleasure and governmental power is not well represented in the old formula of a “disenchanted world” in which triumphant rationality affords increasing choice.⁴⁷ “The room for choice” is not a homogeneous space of which secular liberal society happens to have the most.

Nevertheless, one can draw out a conclusion from Skovgaard-Petersen that he leaves implicit but which I consider especially important for my story. The individual is now encouraged—in morality as well as in law— to govern himself or herself, as befits the citizen of a secular, liberal soci­ety. But two points should be borne in mind in relation to this conclu­sion. First, this autonomy depends on conditions that are themselves subject to regulation by the law of the state and to the demands of a mar­ket economy. Second, the encouragement to become autonomous is pri­marily directed at the upper classes. The lower classes, constituted as the objects of social welfare and political control, are placed in a more am­biguous situation.

This conclusion seems to me to have particular implications for an analysis of the modernist movement in Islam. It prompts one to ask of the salafiyya reformers not why they failed to produce a sufficiently impressive Islamic theology or legal theory, nor why they became willing ideologists for the state (both being tendentious and question-begging formulations), but how the reordering of social life (a new moral landscape) presented cer­tain priorities to Islamic discursive tradition—a reordering that included a new significance being given to the family, a new distinction being drawn between law and morality, and new subjects being formed. How the Is-

47. See Ian Hacking, Rewriting the Soul: Multiple Personality and the Sciences of Memory, Princeton: Princeton University Press, 1995, a fascinating discussion of child abuse as subjective experience, emancipatory politics, and psychological knowledge.

lamic discursive tradition responded to and intervened in the newly emerg­ing moral landscape is a complex matter. In this chapter I consider only one small aspect of it, having to do with the reform of the law.