‘Sharia’ as a traditional discipline

In Safwat’s proposal for reform, the basic moral appeal is to con­science in the Kantian sense. The sharia comes to be equated with ju­risprudential rules concerning marriage, divorce, and inheritance, with the resolution of disputes arising from such relationships, and also with the rules for proper worship.

But in Abduh, the modernizing Azharite steeped in tasawwuf (mysticism), there is a tension that is absent in the proposed reforms of European-trained lawyers such as Safwat. For Abduh also invokes an older conception of the shari'a. Thus on the one hand Abduh complains that teaching and examining the shari'a in al-Azhar pays far too much attention to ‘ibadat (rituals of worship) and far too little to muamaldt (rules for so­cial relations).⁹³ But he also says that the judge’s authority requires more than intellectual competence, that it depends on his developing certain moral aptitudes and predispositions.

In Abduh’s words, “the Islamic shari‘a\a& intricate details which can­not be taken into account except by someone who has informed himself thoroughly of all its legal provisions, enquired properly into its objectives and arrived at its precise meanings—that is, someone who knows its lan-

93. Muhammad Abduh, Taqrir, p.

Reconfigurations of Law and Ethics in Colonial Egypt 249 guage as well as its masters do. No man can attain to that state unless he has acquired the shari'a from its practitioners, and has been brought up ac­cording to the true religious tradition (al-sunna al-dtniyya al-sahtha). Fur­thermore, the judge cannot be a preserver of family and domestic organic zation merely by learning shari'a injunctions. The injunctions must become an authoritative part of himself [thumma layakunu al-qadi hafizan nizdm al-usr wa al-buyut ba'dal-ihata bi ahkami al-shar'i hatta yakunu li al-shar'i wa ahkdmihi sultan—ayy sultan 'ala nafiihi\.”⁹ⁱ That is to say, the shari'a must become part of the judge’s moral and physical formation, ceas­ing in that context to be mere “rules”—although rules are what he deploys in his judgments. (Incidentally, I make no claims about Abduh’s “real mo­tives”—a topic on which historians and biographers have been happy to speculate—but about what the text says.)

What such a passage reveals is not the banal recognition that rituals of worship are a vital part of every pious Muslims upbringing. Nor does it simply indicate that they are an integral part of the Islamic tradition. Its in­terest, I suggest, lies in the claim that increasingly correct social practice is a moral prerequisite for the acquisition of certain intellectual virtues by the judge. A knowledge of legal rules will not suffice—so Abduh insists—be-, cause the judges task is not simply the application of those rules. It is nec­essary for him to know how to apply the rules in such a way that he helps “to preserve the family.” The thought presented here is not that by being seen to be religious the judge acquires the charisma to reinforce his au­thority. Nor is it that frith and probity are essential criteria for eligibility to the status of judge.⁹⁵ On the contrary, Abduh is saying that the authorita­tive character of the law can be recognized, and its rules properly applied, only after a process of personal discipline that depends on al-sunna al- dtniyya al-sahtha—“the true religious tradition.” The tradition is not based on rationally founded belief but on commitment to a shared way of life di­vinely mandated.

94. Ibid., p. 219.

95. On some medieval discussions about the preconditions for authoritative legal reasoners, see Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), pp. 117-21.

for the model judge. Whether, and if so how and to what extent, such cul­tivation actually works, how it combines or conflicts with extn-shanacon­ditions, are of course different questions—and questions for historical and ethnographical research. But the conception here is that being a defective judge is not unlike being a defective teacher in as much as both intervene wrongly or inadequately in the developing lives of others. In other words, it is when the shana fails to be embodied in the judge that it becomes a set of sacred rules—“sacred” because of the source of their sanction, “rules” because of their impersonal and transcendent application.

The view that Abduh takes here of the moral subject is not concerned with state law as an external authority. It presupposes that the capability for virtuous conduct, and the sensibilities on which that capability draws, are ac­quired by the individual through tradition-guided practices (the sunna). Fiqh is critical to this process not as a set of rules to be obeyed but as the condition that enables the development of virtues. Abduh therefore repudiates the lib­eral conception of the right to self-invention. Implied in this conception of fiqh is not simply a comprehensive structure of norms (ahkam), but a range of traditional disciplines, combining both sufism and the sharia, on which the latter’s authority depends. In other words, Abduh sees the “Islamic tradi­tion” (the sunna) not merely as a law whose authority resides in a supernatu­ral realm, but as the way for individuals to discipline their life together as Muslims.

The fourteenth-century jurist IbnTaymiyya, whose authority Abduh often invoked, expounded a doctrine of sufism that I think underlies Ab- duh’s views. According to Ibn Taymiyya the only point of spiritual disci­pline (the point that makes sufism essential) is to promote a convergence between human willing and the commands of God as expressed in the shana. Thus for IbnTaymiyya (and for Abduh) “at every stage the servant must desire to do that which has been commanded him in the shana and avoid what has been forbidden him in the shana. When [the mystic Abd al-Qadir] commands the servant to leave off his desiring, that pertains to those things which have been neither commanded nor forbidden.”⁹⁶ In this

. 96. Cited in Thomas Michel, “Ibn Taymiyya’s Shark on the Futuh al-Ghayb of Abd al-Qadir Jilani,” Hamdard Islamicus, 4/2,1981, p. 5. Michel, in his very in­teresting analysis of Ibn Taymiyya’s theological tract on sufism, goes on to com­ment: “Ibn Taymiyya stresses that this primacy of the sharl‘a forms the soundest tradition in Sufism, and to argue his point he lists over a dozen early masters, as

Reconfigurations of Law and Ethics in Colonial Egypt 251 view, the performance of the shari'a—spiritual cultivation of the self through ‘ibadat, the entire range of embodiments that define worship, to­gether with supererogatory exercises as well as the norms of social behavior (called muamaldt)—are all interdependent. Together they occupy the space that Ahmad Safwat would pre-empt for the legislative authority of the sover­eign state and the moral authority of the sovereign subject.

There is, of course, a partial resemblance between this idea and the one familiar to the social sciences as “habitus,” made famous by Pierre Bourdieu but first introduced into comparative sociology by Marcel Mauss in his famous essay “Techniques of the Body.” Mauss himself acquired the concept from medieval Christian discourse, which continued and built on the Aristotelian tradition of moral thinking^[144]—a tradition that is also shared with Islam.

The concept of habitus invites us to analyze any assemblage of em­bodied aptitudes not as systems of meanings to be deciphered. In Mauss’s view, the human body was not to be regarded simply as the passive recipi­ent of “cultural imprints” that can be imposed on the body by repetitive discipline—still less as the active source of “natural expressions” clothed in local history and culture—biit as the self-developable means by which the subject achieves a range of human objects—from styles of physical move­ment (for example, walking), through modes of emotional being (for ex­ample, composure), to kinds of spiritual experience (for example, mysti­cal states).

It is the final paragraph of Mauss s essay that carries what are perhaps the most far-reaching implications for an anthropological understanding of secularism. Beginning with a reference to Granets remarkable studies of Taoist body techniques, he goes on: “I believe precisely that at the bottom of all our mystical states there are body techniques which we have not stud­ied, but which were studied fully in China and India, even in very remote periods. This socio-psychq-biological study should be made. I think that there are necessarily biological means of entering into ‘communion with God’.”⁹⁸ Thus the possibility is opened up of inquiring into the ways in which embodied practices (including language-in-use) form a precondition for varieties of religious (and secular) experience.⁹⁹ The inability to “enter into communion with God” not only becomes a function of untaught bodies but it shifts the direction in which the authority for conduct can be sought. And authority itself comes to be understood not as an ideologically justified coercion but as a predisposition of the embodied self.