Why this reform?

The story historians tell is of course more complex, deals with par­ticular times and places, and has resort to the motives (declared or in­ferred) of actors in a changing political field.

The massive process of Westernization is not in dispute among his­torians of modern Egypt. A question that is in some dispute, however, is why the reformers looked to Europe rather than build on preexisting short a. traditions. The Egyptian jurist Tariq al-Bishri contends that what he calls the mimicry of the West was the outcome of a combination of cir­cumstances. chief among them European coercion and the Egyptian elites’ infatuation with European ways.¹⁶ Bishri seems to me to have a better form in Egypt,” Journal of the Society of Comparative Legislation, no. 2, July 1899. Sir John Scott, who was charged by Lord Cromer, the British consul-general, with overseeing these reforms, repeats the colonial notion that “until recently there was no such thing as native justice” (p. 240). This view was then taken up by Egyptian progressivists as well

ij. John Anderson writes that “In Egypt the reason given for the abolition of both the Sharia courts and the community courts of the various Christian and Jewish sects was the unsatisfactory nature of some of their judgments and proce­dure; but there can be little doubt that behind this lay—naturally enough—a gen­eral predilection for bureaucratic unification” (J. N. D. Anderson, “Modern Trends in Islam: Legal Reform and Modernisation in the Middle East,” Interna­tional and Comparative Law Quarterly, vol. 20,1971, p. 17).

16. “When we look at the closing years of the nineteenth century and the opening years of the.twentieth, we are struck by names applied to what they do not mean.

Reconfigurations ofLaw and Ethics in Colonial Egypt 213 sense of the contingent character of the changes brought about by the en­counter with Europeans than many historians, Western and Egyptian, who narrate Europeanization as the story of true civilization.¹⁷

So how is one to understand the Egyptian elites’ adoption of Euro­pean models of law? Sa'id Ashmawi, ex-judge of the Appeal Court, writes that the assumption of a foreign law having been imported into Egypt is wrong. Roman law, he explains, was a synthesis of various customs, con­ventions, and laws prevailing in the empire (including Rome itself of course, as well.as West Asia and North Africa) that was codified in the In­stitutes of Justinian in 533 C.E. Thus Roman law, says Ashmawi, has a great deal in common with Islamic law and jurisprudence (fiqh) because it pro­vided a foundation for the latter.¹⁸ When Napoleon Bonaparte charged the lawmakers of France to draw up a civil code they turned naturally to the Institutes of Justinian to devise what came to be known as the Napoleonic Code. And when the Egyptian lawmakers intended in 1883 to modernize the judicial system and legal style, they noticed that Islamic jurisprudence was not properly organized and categorized, and that legal procedure and judgment lacked adequate method and system. So they translated French compilations into Arabic, and with some slight modifications this became Egyptian law.¹⁹ “But Egyptian law is neither French nor Roman,” insists Ashmawi, “meaning that it does not contain principles foreign to Egypt­ian society or remote from the Islamic shari'a, or it would have been im­possible to apply it so successfully for more than a century, implanting the principles of justice and ensuring social peace and security.”²⁰ Even if these generalizations regarding the Roman origins of both the Napoleonic Code while taking from the West was called ‘renewal’ (tajdtd) and innovation (ibda')— despite the fact that it was precisely taking from the West that was mere mimicry (al-muhdkd).

17. Thus the lawyer Hamid Zaki, in arguing for the reform of personal sta­tus law, refers repeatedly to European societies as “civilized countries,” implying perhaps that Egypt was not quite one of them yet (“al-Mahdkim al-ahliyya wa al- ahwdl al-shakhsiyyaf Majallat al-qdnun wa al-iqtisad, December 1934).

18. Sa'id al-‘Ashmawi, al-Sharia al-isldmiyya wa al-qanun al misn, Cairo: Maktabat Madbuli al-Saghir, 1996, pp. 32-33.

19. Ibid., p. 36.

20. Ibid., p. 37.

and the shana were correct, this denial of difference makes it impossible to understand the specific implications of importing modern European codes into nineteenth-century Egypt for law and morality. This is crucial, in my view, for understanding secularism, a doctrine that is not Roman but modern.

Nathan Brown, the author ofan excellent history of law in the mod­ern Arab world, has complained that “much recent scholarship continues to assert, that the basic contours of legal systems were laid by the metro­pole, local imperial officials, and expatriate populations.... This view, centered as it is on the motives and actions of the imperial power, should cause some discomfort because it risks writing the population of much of the world out of its own history.”²¹ Thus Brown argues that contrary to the repeated nationalist claim that the Mixed Courts were imposed because of the capitulations, the Mixed Courts were in fact a means by which a par­tially independent Egyptian government sought to limit the capitula­tions.²² This motivation, he says, should be attributed to the entire move­ment of legal reform along European lines because, the latter can be seen as a tool for resisting direct European penetration.²³

But the motives were surely more diverse—especially in different pe­riods.

21. Nathan Brown, “Law and Imperialism: Egypt in Comparative Perspec­tive,” Law and Society Review, vol. 29, no. 1,1995, pp. 104-5.

22. See also Byron Cannon, Politics of Law and the Courts in Nineteenth Century Egypt, Salt Lake City: University of Utah Press, 1988, pp. 37-61.

23. Brown, p. 115. But Rudolph Peters disagrees: “The wholesale reception of foreign law in Egypt beginning in 1883 must... be attributed to strong foreign

' pressure" (R. Peters, “Islamic and Secular Criminal Law in Nineteenth-Century Egypt: The Role and Function of the Qadi,” Islamic Law and Society, vol. 4, no. 1, 1997, P· 78).

24. Cited in Fathi ZagWul, al-Muhdmd, p. 183.

Reconfigurations of Law and Ethics in Colonial Egypt 215 tion, instructs and civilizes that population.”²⁵ The attempt at explaining major social changes in terms of motives is always a doubtful business.

In 1882, immediately after the British Occupation, Husayn Fakhri Pasha, the new minister of justice, wrote a memorandum arguing that a shari a-based code would not be consistent with the arrangements to which Egyptians were accustomed, and urged that the laws then being ap­plied in the Mixed Courts should be adopted by the National Courts.²⁶ The notion that such laws would be more suitable for Egyptians than any­thing that might be based on the shari'a represents an aspiration for a Westernized future rather than for a reformed continuity of the recent past.

25. In order to impress the European powers, who were also his creditors, Ismail convened an advisory chamber of delegates (the Majlis Shura al-Nuwwab) in 1866. While this “was meant to ensure Egypt a place among the ‘civilized’ countries, within Egypt it was intended as a ‘civilizing’ instrument. Nubar [Is­mail’s foreign minister] declared to the French Foreign Minister in December 1866 that ‘notre parlement est une icole au moyen de laquelle le gouvernement, plus avance que la population, instruit et civilise cette population.’” (A. Scholch, Egypt for the Egyptians! The socio-political crisis in Egypt, 1878-82, London: Ithaca, 1981, p. 15). It was Nubar who originated the idea of the Mixed Courts (see J. Y. Brinton, The Mixed Courts of Egypt, rev. ed.> New Haven: Yale University Press, 1968, chapter 1).

26. Fakhri’s implicit reference is to the previous minister of justice, Muham­mad Qadri Pasha, who had attempted to codify the shari'a. “Is it really possible,” Fakhri writes, “to apply [the shari'a} on the inhabitants [of this country] given that their customs and their dealings at present with one another or with Europeans are governed by the Civil Code that settles disputes over sale, rent, ownership, and the like?” (“ Mudhakkirdt hussayn fakhri bdsha ndzir al-haqqdniyya li majlis al-nuzzdr,” in Al-kitdb al-dhahabi li al-mahdkim al-ahliyya, vol.

The notion of resistance is. attractive to historians and anthropolo­gists who wish to give subordinated peoples what they think of as “their own agency.” (See Chapter 2.) In the context of Egypt’s colonial history the notion allows for the argument that European reforms were not imposed on helpless agents but used by them. However, the notion we are presented with is obscure, for sometimes resistance to the reforms is described as “rigidity and reaction,” at other times it is attributed to the fear that mate­rial interests are being threatened.²⁷ How good are such explanations? Talk of reactionaries merely invokes a metaphysic of teleological progress and as such is no explanation at all. Reference to the resisters’ material motives is in principle an explanation, although a reductive one. It does not account for opposition to the reform by those who had nothing material to lose by it. More generally, it raises problems that all explanations in terms of at­tributed motives encounter, but fails to address them.

What is frequently missed in such attempted explanations, however, is that since the idea of “resistance” implies the presence of intrusive power, proper attention must be paid to what that power consists of, what intru­sive power seeks when it seeks “improvement”—in short, one must ask what acts one is confronted with and how they are fitted into a larger fig­ure. If “imperialism” is thought of as the term for an actor contingendy connected to acts, for a player calculating what his next move should be in a game whose stakes are familiar to all participants, and whose rules are ac­cepted by them, then one may talk of agents seeking to strategize and of others resisting that strategy. If, on the other hand, imperialism is regarded not as an already constituted agent who acts in a determinate way but as the totality of forces that converge to create (largely contingendy) a new moral landscape that defines different kinds of act, then one should cer­tainly not say, as some now do, that “imperialism was a far weaker force for legal reform than has generally been assumed to be the case.”²⁸ The basic question here, in my view, is not the determination of “oppressors” and “oppressed,” of whether the elites or the popular masses were the agents in

27. Farhat Ziadeh mentions resistance on the part of advocates in the 1930s: “In controversies that pertained to religious or quasi-religious matters shariah advocates tended to rigidity and reaction.” Furthermore, “Appeals to re­ligion were sometimes utilized in fighdng the inroads into jurisdiction of the sharia courts, and hence the livelihood of its advocates” (Lawyers, the Rule of Law and Liberalism in Modem Egypt, Stanford: Stanford University Press, 1968, pp. 58 and 59, respectively).

28. Nathan Brown, The Rule of Law in the Arab World, Cambridge, 1997, p. 18.

Reconfigurations of Law and Ethics in Colonial Egypt 217 the history of reform (both, of course, in various ways participated in the changes). It is the determination of that new landscape, and the degree to which the languages, behaviors, and institutions it makes possible come to resemble those that obtain in the West European nation-states. This ap­proach requires some reference to the necessities and potentialities of modernity (or “civilization”) as these were presented by Europeans and in­terpreted by Egyptians.

Arguments about the defensive character of legal reforms are not new. The numerous reforms initiated by the Ottomans since the eigh­teenth century have long been described in precisely that way. My interest, however, is not in speculating about an old motive (resistance) but about new institutional and discursive spaces (themselves not immutably fixed) that make different kinds of knowledge, action, and desire, possible. That the results of these changes were not exactly European has also long been recognized, but there are two ways of looking at this outcome: either (as the majority of historians have claimed) as evidence of “a failure to mod­ernize properly,” or (and this is just beginning to be proposed)²⁹ as expres­sions of different experiences rooted in part in traditions other than those to which the European-inspired reforms belonged, and in part in contra­dictory European representations of European modernity.

(By contradictory representations of modernity I refer, for example, to this: Whereas Max Weber wrote that the shari ‘a was primitive because it lacked the criteria given to modern law by rational authority,³⁰ Anglo- American jurists had no hesitation in regarding English common law mod­ern even though it did not embody the Weberian criteria of legal rational­ity. In other words, there is no consensus on what the decisive criteria are

29. My point here should not be confused with the rebuttal of the “Eastern- stagnation-versus-Western-development” thesis now being mounted by many his­torians of Asian countries. To argue that there were indigenous roots of modern development in the latter does not in itself interrogate the criteria by which “mod­ern development” is described. That industrialization and modernization are to be seen as global processes that transform all component units differentially does not shift from the idea of teleological history. For a subtle study that does attempt to do just that, however, see Dipesh Chakrabarty’s Provincializing Europe; Postcolo­nial Thought and Historical Difference, Princeton: Princeton University Press, 2000.

30. Weber derived his understanding of Islamic law largely from the Dutch orientalist Snouck Hurgronje, who was closely involved with projects of law re­form in colonial Indonesia.

for regarding particular forms of law “modern” in the West. There “moder­nity”—like secularism, which is said to be part of the latter—is located in an argument about the importance of particularity. Even in the context of Western-dominated Egypt, European codes arrived as exceptions applicable only to particular categories of subject and not as universal\aw applicable to everyone.)

Brown connects the legal reforms with the needs of what he calls “centralization and state building.”³¹ Certainly the states appropriation of the domain of criminal law, its monopolization of the definition of cate­gories of crime—-and of the treatment of criminals—was part of this process.³² But there was more at work here than a single project of increas­ing state power. There was also the question of how liberal governance (po­litical, moral, and theological) was to be secured during the different phases of state building and dismantling—of how, according to many re­formers, liberty, modernity, and civilized life were to be achieved. It was in response to that question that the law had to acquire new substance and new functions and to employ new kinds of violence. For colonial punish­ment—the institution of a police force and a prison system—was central to the modernization and secularization of law in Egypt.³³ And it gradually replaced previous forms of violence.