The central question of the Arab Springwhat democracies should look like in the deeply religious countries of the Middle Easthas developed into a vigorous debate over these nations’ secular identities. But what, exactly, is secularism? What has the West’s long familiarity with it inevitably obscured? In Questioning Secularism, Hussein Ali Agrama tackles these questions. Focusing on the fatwa councils and family law courts of Egypt just prior to the revolution, he delves deeply into the meaning of secularism itself and the ambiguities that lie at its heart.
Drawing on a precedent-setting case arising from the family law courts the last courts in Egypt to use Shari‘a lawAgrama shows that secularism is a historical phenomenon that works through a series of paradoxes that it creates. Digging beneath the perceived differences between the West and Middle East, he highlights secularism’s dependence on the law and the problems that arise from it: the necessary involvement of state sovereign power in managing the private spiritual lives of citizens and the irreducible set of legal ambiguities such a relationship creates. Navigating a complex landscape between private and public domains, Questioning Secularism lays important groundwork for understanding the real meaning of secularism as it affects the real freedoms of a citizenry, an understanding of the utmost importance for so many countries that are now urgently facing new political possibilities.
About the Author
Hussein Ali Agrama is assistant professor of anthropology at the University of Chicago.
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Questioning SecularismIslam, Sovereignty, and the Rule of Law in Modern Egypt
By HUSSEIN ALI AGRAMA
THE UNIVERSITY OF CHICAGO PRESSCopyright © 2012 The University of Chicago
All right reserved.
Chapter OneThe Legalization of Hisba in the Case of Nasr Abu Zayd
Since the beginning of the nineteenth century, the Egyptian state has been involved in a modernizing project. That is, it has been involved in an ongoing project to restructure its governing institutions to efficiently govern and improve the lives of its subjects according to standards derived from West European states. But the Egyptian state, throughout this project, has had to confront a central question: to what extent can and should it incorporate the long-standing Islamic traditions (collectively known as the Shari'a) that had become deeply embedded in Egyptian social institutions, and which exerted authority over a wide range of social activities? Thus deeply rooted and widely authoritative, the Shari'a has been a principal target of transformation and concern right from the start of the Egyptian modernizing project.
The law and the legal system have played (and still do play) an important role in this Egyptian restructuring project. The extension of Western-style legal concepts and institutions into the lives of Egyptians has increasingly constrained and enabled the various ways Egyptians can live. And the Shari'a, once a key point of reference for a wide array of social activities, has subsequently become subordinated to and transformed by these new legal conditions. Concomitantly, the law has become a fundamental site of Islamic argumentation and practice, and invocations of the authority of the Shari'a within the law affect the ways that the Shari'a is conceptualized and practiced. For precisely this reason, contemporary Egyptians cannot avoid taking legal conditions into account when attempting to reassess the role of Islam in their lives, both personal and political. For the same reason, any adequate analysis of Islamic practice in Egypt today cannot dispense with a consideration of legal conditions there and their effects. How have legal transformations affected the Shari'a? In what ways has the construction of new legal conditions altered the significance of specific Islamic concepts and practices in Egypt? These are the questions I begin to explore in this chapter, through a contemporary, controversial, set of court judgments about Islam and apostasy, concerning a former university professor by the name of Nasr Abu Zayd.
As I noted in the introduction, the adoption of a modernizing project does not produce cultural homogeneity and thus cannot be understood in a teleological way. It does, however, involve the adoption of characteristic concepts, categories, and spaces that create distinctive possibilities and constraints for how discourse, argument, and practice can proceed. The Abu Zayd court judgments that I discuss here bring out with great clarity some of the possibilities the modern project has created for Islamic argumentation and practice in Egypt. In this chapter I will highlight some of the modern concepts and spaces reflected by the court judgments, and how the Islamic Shari'a has become configured through them. In the process I will look at some of the specific historical changes that put those modern concepts and spaces in place.
The principles invoked in the Abu Zayd judgments are particularly important for understanding how the Islamic Shari'a has become configured under Egypt's modernizing project. Many of their themes will be discussed in subsequent chapters, and the judgments themselves will be invoked time and again to illustrate important aspects of the spaces of modern power that the Islamic Shari'a has come to inhabit in Egypt.
On the Concept of a Discursive Tradition
This chapter deals with civil law (i.e., French-based continental law) and the Shari'a, their similarities and differences, and the ways the former significantly transformed the latter in Egypt. However, attempts to conceptualize both civil law and the Shari'a have encountered much difficulty. Legal theorist Alan Watson notes that these difficulties arise with civil law because it has a unity that transcends the particular social, political, and economic conditions of the countries where it operates. The Shari'a is difficult to conceptualize for much the same reasons. J. H. Merryman, a comparative legal scholar, usefully proposes to understand civil law as a legal tradition that
is not a set of rules of law about contracts, corporations, and crimes, although such rules will almost always be in some sense a reflection of that tradition. Rather, it is a set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in society, about the proper organization and operation of a legal system, and about the way that law is or should be made, applied, studied, perfected, and taught.
This in some ways parallels Talal Asad's notion of discursive tradition as a solution to difficulties encountered in describing Islam. Such an approach requires that one begin with the distinctive vocabularies and conceptual elaborations of relevant texts, with reference to historically changing structures, to discern how they may connect "variously with the formations of moral selves, the manipulation of populations (or resistances to it), and the production of appropriate knowledges." In this chapter I will approach both the Shari'a and the civil law as discursive traditions. Such an approach will allow me to describe Egyptian legal transformations in terms of the reorganization of one tradition by the more powerful discourses and practices of another.
The concept of a discursive tradition as used in this chapter and in this book is somewhat at odds with the view of an invented tradition still very widely used in anthropological discussions of Islam and the Middle East. That view is rooted in the idea that the past is a reservoir of symbols that can be variously interpreted and manipulated for present (usually political) purposes. The emphasis is on symbols and their uses. The concept of a discursive tradition, however, brings about a difference in emphasis, one that is less on symbols and more on the arguments, practices, and techniques in which symbols are rooted and from which they get their authority and significance. It must be remembered that symbols acquire their effectiveness through their insertion into arguments, and arguments, in order to convince, justify, or even oblige response must satisfy certain conditions. They must, for example, address the proper themes, cite the right authorities, and employ the correct argumentative forms—all of which have been historically constituted along with and in relation to the practices and institutions that together make up the tradition in question.
The concern, then, is not with symbolic manipulation but with aspects of the argumentation used in the court case and their historical conditions. By this concern, however, it should not be thought that I think that all concepts and practices rely on explicit argumentation. Rather, my focus is on the discursive conditions of persuasive argument and some of the his torical transformations that put them in place—that is why I emphasize the notion of a discursive tradition. Moreover, in emphasizing discursive tradition, I do not assume that all arguments must be textual; they can be verbal as well. All I assume is that they refer to what are taken to be from the founding texts. With this in mind, let us now turn to the court case of Abu Zayd, the arguments found in the court judgments, the themes they address, and the authorities they cite, with an eye toward the ways these have been historically constituted.
Hisba in the Case of Nasr Abu Zayd
Egypt's Court of Cassation—the highest civil and criminal court in the country—handed down a highly controversial decision in August of 1996. The decision was about a Cairo university professor of Arabic and Islamic studies whose name was Nasr Abu Zayd. The Court of Cassation's verdict upheld a previous ruling of the Cairo Appeals Court issued the year before, which declared Abu Zayd an apostate from Islam and, as a result, annulled his marriage to his wife. This was against the will of both Abu Zayd and his wife.
Proof of Abu Zayd's apostasy was found in a set of his published writings, writings that he had previously submitted to a Cairo University review committee for the purpose of a promotion. And it was with the review committee that the entire controversy that led to this decision started. The committee denied his promotion on the basis of what it claimed was his inadequate scholarship. Quickly this denial became the subject of a bitter campus debate between those who supported Abu Zayd and those who opposed him, a debate that made international headlines and thus put some pressure on the university to reverse its decision.
It was at this point that some of those opposed to Abu Zayd filed this court case. They raised the case through the personal status law, which is where the Islamic Shari'a is still in force. They used a provision in the personal status codes to introduce a certain principle from the Islamic Shari'a that was not explicitly stated in those codes. That principle is called hisba.
Hisba is an individual and collective practice of moral criticism technically defined within the Shari'a as "the commanding of good when it is manifestly neglected, and the forbidding of evil, when its practice is manifest," and it had been subject to increasing legal and religious elaboration in Egypt even before this case. The professors and their lawyers argued that on the basis of this concept they could file a lawsuit against Abu Zayd. They argued that his writings were manifest proof of his apostasy from Islam, and that as an apostate he could not be legally married to his Muslim wife. On this basis they petitioned the court to immediately annul his marriage.
The plaintiffs were often asked why they cared at all about Abu Zayd's marriage. They eventually replied that in fact they weren't really interested in his marriage. Rather, they were interested in the court's having to make a legal determination of Abu Zayd's apostasy, which, if confirmed, would settle the question of whether or not he deserved a promotion, or even a position, in an Islamic and Arabic studies department. It was simply because of the current structure of the Egyptian law, which arose out of a number of relatively recent historical transformations that incorporated the long-standing Shari'a into Egyptian personal status law, that they had to raise the issue as a personal status case. It was the only way they could get a legal determination of his apostasy.
The results of their attempt went far beyond anyone's expectations. Not only did the courts declare Abu Zayd an apostate and annul his marriage, they also set a stunning precedent by declaring that the filing of hisba cases was the duty of every Egyptian Muslim citizen. The government saw this declaration as alarming enough so as to quickly push through legislation restricting the right to file hisba suits to the public prosecutor (al-niyaba al-'amma) only. This move angered both Islamists and liberals—Islamists because it restricted what they saw as a fundamental right of individuals, and liberals because it entailed official recognition of the concept of hisba.
This chapter is directed toward two related tasks. The first is to offer initial considerations on select themes and arguments found in the court judgments and to broadly identify some of the historical changes that made them possible. It thus provides a relevant historical background to contemporary Egyptian legal practice. The second is to explore how the court judgments have conceptualized hisba, and to tentatively specify some of the significant changes the concept of hisba has undergone as a result of its subsumption under a civil law context. My argument is that hisba, though based in the Shari'a, has been fundamentally transformed under Egyptian civil law in two ways: it has become attached to a new set of concepts and categories, and its mode of enactment has changed. The transformation of hisba is one illustration of some of the fundamental changes the Shari'a has undergone in Egypt as a result of the reception of civil law. It also offers a glimpse of the new possibilities for action and public criticism that might be arising from such transformations of the Shari'a, possibilities that are not expected to arise from within a liberal framework.
The Case of Abu Zayd: Arguments and Themes
As mentioned earlier, Abu Zayd, an associate professor of Islamic and Arabic studies at Cairo University, had been the center of some attention even before the suit was filed against him. The controversy arose when his application for promotion to full professorship was rejected in 1992 on the basis that his research did not comply with Islamic standards. Since then many have condemned this rejection in the name of academic freedom, while others have supported it, calling into question Abu Zayd's commitments to Islam. The initial lawsuit filed against him at the Giza Court of First Instance in 1993 was one development in this ongoing quarrel.
The lawyers who filed it argued that his writings contained clear statements that were unanimously agreed upon by classical scholars of the Hanafi school of Islam to require a judgment of apostasy. These included: calling doubt upon the existence of angels, jinn (spirits), devils, the Final Day, hellfire, the Throne of God; calling doubt upon the divinity of the Qur'an by arguing that it contained a human element and was thus subject to literary interpretive methods; and finally, questioning the eternal sufficiency of the revelation by arguing that aspects of it should be changed according to modern understandings. Even worse, the lawyers claimed, he was teaching these views to his students. They concluded that Abu Zayd should be judged an apostate. One of the consequences of apostasy in Islam is immediate nullification of the marriage contract between the apostate and his Muslim wife. Thus they argued that Abu Zayd should be immediately separated from his wife.
The lawyers based their lawsuit on the concept of hisba. Hisba claims, they argued, had been recognized in the 1931 Regulations of Shari'a Court Organization in its articles 89 and 110. Those articles regulate when the court accepts claims. The articles state that "cases are not accepted unless there is an actual legal opponent," defined, in part, by the presence of the plaintiff and the defendant before the court at the proper time. However, they further state that "if [the matter] concerns the rights of God then it is required for the court to look into it [with or without the presence of the parties]." Hisba was defined within Islam to be a matter of the rights of God, of which divorce was one. Thus it was obligatory upon the courts to accept and look into hisba cases.
Yet there was a question as to whether these regulations were still valid. This was because the Shari'a courts had been absorbed into the jurisdiction of the personal status division of the Egyptian national courts in 1955 under law 462. However, the lawyers argued that the Court of Cassation recognized them in 1966, which validated hisba claims and the rights of God and further emphasized another article (6) of law 462 that requires judges to decide cases using the doctrine of the Hanafi school of Islam in personal status issues for which there were no applicable statutes. Article 6 paralleled an earlier provision (280) in the 1931 regulations of old Shari'a courts.
The defense argued otherwise. They noted that the articles of the 1955 law 462 not only absorbed the jurisdiction of the Shari'a courts. That law further required that cases be filed according to the regulations for civil procedure. Those regulations state that "a case is not accepted unless the plaintiff has a direct interest and "legal attribute" that the court can judge upon." This principle of civil litigation is typically understood to refer to the private interest of the plaintiffs. Since the plaintiffs had no "legal attribute" or direct interest in filing the suit, the defendants argued, the court should dismiss the case. The defense further claimed that the court had no jurisdiction to judge upon the validity of a person's religious belief.
The Giza Court, in weighing the arguments, made a distinction between procedural and substantive matters based on law 462. It stated,
the articles in law #462 in 1955 have established two principles ... the first is a separation between the substantive from the procedural matters that regulate personal status issues, and the second is that in procedural matters the Civil and Commercial rules of procedure are the general law to be applied.
Since these rules of procedure required that the plaintiffs possess a direct legal interest and "legal attribute" to file suit, and since the plaintiffs did not have this, the Giza Court dismissed the case. (Continues...)
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Table of Contents
Introduction: A Secular or a Religious State? 1
Chapter 1 The Legalization of Hisba in the Case of Nasr Abu Zayd 42
Chapter 2 The Indeterminacies of Secular Power: Sovereignty, Public Order, and Family 69
Chapter 3 A Paradox of Islamic Authority in Modern Egypt 107
Chapter 4 Law's Suspicion 130
Chapter 5 What Is a Fatwa?: Authority, Tradition, and the Care of the Self 160
Chapter 6 Islamist Lawyers in the Egyptian Emergency State: A Different Language of Justice? 188